Rasheed Olaiya V The State (2010)

LAWGLOBAL HUB Lead Judgment Report

MOHAMMED, J.S.C

The Appellant in this appeal who is a senior brother of the 1st prosecution witness who was the complainant at the police Station, was arraigned before the High court of justice of Oyo State sitting at Ibadan on an information filed by the State 15th October, 2002 for the offence of murder contrary to Section 319 of the Criminal Code CAP 30 of the laws Oyo State of Nigeria 1978, in that the accused person on or about the 3rd day of November, 2001 at No. 10 Ogunleye Avenue, Liberty Road Ibadan murdered one Ramoni Ibrahim. On taking the plea of the accused person who pleaded not guilty to the offence on 19th November, 2003, the case proceeded to trial before Ige J. In the course of the trial, the prosecution called a total number of 6 witnesses who testified in support of the case for the prosecution. The accused person on the other hand, gave evidence in his own defence but declined to call any other witness to testify in support of his defence.

The case fore the prosecution was that the accused and PW 1 Ibrahim Sanusi, were children of same parent whose father Alhaji Abdullahi Sanusi was deceased. One Mufutau Sanusi who also deceased, was of the same father but different mothers with the accused and PW 1. The accused had once approached PW 1 to support him in removing the title document of the landed property left behind by their deceased brother Mufutau, but PW 1 refused to grant the request and advised the accused not to remove the title document. All the same, the accused went ahead to remove the document and was subsequently reported to the police. Since then the accuse had been threatening to deal with PW 1, his junior brother.

It was with the background of these events that the accused on 3rd November, 2001 at about 11 p.m, came to the house of his junior brother PW 1 where he found PW 1 with his two wives and three children. On coming into the house, the accused slapped one of his brother’s wives who opened the door for him and whom he accused of intermeddling into their family affairs. He also slapped PW 1 who extricated himself from the grip of the accused and ran out of the house to seek help from their brother who also lived in the same family house. It was at this point that the accused, in the presence of his brother’s two wives, grapped his brother’s 5 month old baby who was sleeping on the bed, and smashed him on the floor causing him injuries which resulted in his death that same night before the matter could be reported to Alhaji Tajudeen Sanusi, one of the elders of the family. The incident was then reported to the police who deposited the corpse of the deceased child in the mortuary of the hospital where it was examined and a medical report on the cause of death was prepared and issued.

The case of the accused in his defence on the other hand, was a complete denial of ever being to the house of his younger brother PW 1 on the night of 3rd November, 2001, not to talk of having engaged in the alleged act that caused the death of the deceased child Ramoni Ibrahim. He said it was his brother PW 1, who broke into the accused room that night and accuse him of having killed the deceased child and threw the child on the ground. He explained that he was alone in the the room when PW 1 his brother accompanied by his wife carrying the deceased child, came to his room that night as following a misunderstanding between him and his brother PW 1 earlier on. He claimed that PW I had driven the accused’s wives and his 9 children out of the house before that date. The accused finally asserted that his own two wives, one Tajudeen whose room is opposite that of the accused and three other named person could testify in support of his defence of alibi.

The learned trial Judge after taking addresses from the learned Counsel to the accused and the prosecution, in a well considered judgment delivered on 6th February, 2004, found the accused guilty as charged, convicted and sentenced him to death in accordance with the law. Not satisfied with his conviction and sentence, the accused appealed to the Court of Appeal Ibadan Division which after hearing the appeal, dismissed the same and affirmed the conviction and aggrieved by that judgment, the accused whom I shall henceforth in this judgment call the ‘Appellant’; is now on a further and final appeal to this Court by a Notice of Appeal containing three grounds of appeal from which only one issue for determination was raised in the Appellant’s brief of argument. The lone issue reads-

“Whether the learned Justices of the Court of Appeal were right, in law, to affirm the conviction and sentence of the Appellant, even though the prosecution failed, altogether, to investigate the Appellant’s defence of alibi raised in good time.”

In the Respondent’s brief of argument, the single issue formulated from the three grounds of appeal filed by the Appellant was adopted by the learned Respondent’s Counsel who also observed that since no issue for determination was raised from the 3rd ground of appeal, the ground is deemed to have been abandoned.

Indeed, close examination of the 3 grounds of appeal filed by the Appellant and the single issue formulated from them in the Appellant’s brief of argument, it is quite clear that ground 3 which complained in the main on the use of medical report to prove the cause of death, no issue for determination had been formulate from that ground of appeal. The law is well settled that where an Appellant does not formulate an issue in his brief of argument to cover a ground of appeal, that ground would be deemed to have been abandoned even where argument has been preferred on it. See Baker V. Lagos State Civil Service Commission (1992) 8 N.W.L.R. (Pt. 262) 641; Labiyi V. Anretiola (1992)8 N.W.L.R. (Pt. 258) 139 Ajar V. Koori (1991) 7 N.W.L.R. (Pt. 203) 260; and Modupe V. The State (1988) 4 N.W.L.R. (Pt. 87) 130. In the present case therefore, ground 3 of the ground of appeal having been abandoned shall be ignored in the determination of this appeal.

In support of the lone issue for determination, the learned Counsel to the Appellant has submitted that the prosecution had failed to prove its case against the Appellant beyond reasonable doubt having failed to investigate and disprove the defence of alibi clearly by the Appellant in his statement to the police in which he listed the names of 6 persons including his two wives who could have given evidence in support of his defence of alibi. He argued that failure of the prosecution and the Court to consider and examine the defence, is a failure of perfume a vital duty and is likely to lead to miscarriage of justice resulting in the decision being set aside and conviction quashed. The cases relied upon by the learned Counsel to the Appellant in support of this argument include Opayemi V. The State (1985) 2 N.W.L.R. (Pt.5) 102; Bozin V. The State (1995) 7 S.C.pg. 472 -473; Obakpolor v. The State (1991) 1 N.W.L.R. (pt.) 165) 113 at 133; Dogo v. The State (2001) 1 S.C. (pt. 11) 30 at and Ikono & Anor. V. The State (1973) 5S.C. 231; 5S.C. (Reprint) 167 where this Court stated that a person who puts forward an alibi as an answer does not assume any burden of proving the answer; that in the present case where the accused or appellant has disclosed on alibi before the trial and the Police had taken no steps available to verify or disprove the defence, the trial Court should have held that the prosecution had failed to prove its case to justify the acquittal and discharge of the accused learned counsel argued placing reliance on Adedeji v. The State 91971) 1 All N.L.R. 75 at 79. Learned Appellant’s Counsel concluded that since the trial Court simply relied on the evidence of PWs 2, 3 and 4 and rejected the evidence of the Appellant setting up his defence of alibi which was neither investigated nor disproved, the trial court ought to have found the appellant not guilty and as such the court below was wrong in affirming his conviction and sentence. Counsel therefore urged this court to allow the appeal.

Learned Attorney general of Oyo State Mr. Lana in his argument in the Respondent’s brief, had observed that the prosecution had adduced credible evidence in support of the case which demolished the Appellant’s defence of alibi showing clearly that the Appellant actually committed the offence with which he was charged; that he learned trial judge had carefully evaluated the evidence adduced at the trial before coming to the conclusion that the prosecution’s evidence had demolished the alibi of the Appellant and had proved its case against the Appellant beyond reasonable doubt; that the contention of the Appellant that his alibi was not investigated before the trial and as such the prosecution cannot be said to have proved its case beyond reasonable doubt, cannot stand on the face of the credible evidence led by the prosecution fixing the Appellant to the scene of the crime. In support of this submission, learned Attorney General called in aid the case of Monday Odu & Anor. v. The State (2001) 10 NWLR (Pt.722) 668 at 674; Nigeria Air Force v. Ex. Squadron Leader A. Obiosa (2003) F.W.L.R. (Pt.148) 1224 at 1225 and Ogbodu v. The State (1987) 2 NWLR (Pt.54) 20. Finally, learned respondents counsel concluded that eh positive identification of the appellant at the scene of the crime by pw2, pw3 and pw4, unequivocally destroyed the Appellant’s alibi thereby making any investigation of the alibi by the prosecution unnecessary having regard to the decision in Patrick Njovens v. The state (1973) 5 S.C. 17 at 65; Adebayo v. Adetola & Sons. v. The State (1992) 4 N.W.L.R. (Pt.235) 267; Madgawa v. The State 91988) 5 N.W.L.R. (Pt.92) 60; Ifedjere v.The State 91984) 9 S.C.. 59; Jerome Akpan 7 3 Ors. V. The State (2002) F.W.L.R. (Pt.110) 1845 at 1853 and Hausa v. The State (1994) 6 N.W.L.R.(Pt.350) 281.After quoting and relying on part of the judgment of the court below now on appeal, learned respondent counsel urged this court to agree with the court below in it judgment that the evidence adduced by the prosecution had completely flawed the defence of alibi put up by the Appellant and consequently dismiss the appeal as the complaint of the Appellant that since the evidence supporting the conviction of the Appellant came from members of his family who were not in good terms with him, his appeal ought to have been allowed by the court below, has no basis at all in law having regard to the decision of this Court in Akpan v.The State 9172) 1 N.S.C.C. 201. Learned Attorney-General therefore urged this court to dismiss the appeal.

The law is indeed well settled that the defence of alibi once it has been properly raised by the accused person in the course of the investigation of the offence for which he is charged, it is the duty of the Police to investigate it and for the prosecution to disprove it. This principle of law had been applied in a number of cases including Salami v. The State 9188) 7 S.C. (pt.11) 89; (1988) 3 N.W.L.R. (PT.85) 670; Nwabueze v. The State (1989) 4 N.W.L.R. (Pt.86) 16; Okoduwa, v. The State (1990) 1 N.W.L.R. (pt.76) 333 and Ozaki v. The State (1990) 1 NWLR (PT.124) 92. On the effect of the failure of the prosecution to investigate the defence of alibi as complained by the Appellant in this appeal, the answer can be found in the case of Hemyo Ntam & Anor. v. The State 91968) N.M.LR. 86 at 87 where this Court said –

“There are occasions on which a failure to check an alibi may cast doubt on the reliability of the case for the prosecution, but in a case such as this where the Appellants were identified by three eye witnesses there was a straight issue of credibility and we are not able to say that the judge’s findings of facts were unreasonable or cannot be supported having regard to the evidence. If the alibi had been true it would have been open to the Appellant to call witnesses in support of them and neither of them did so.”

Similarly, in the case of Michael Hause v. The State (1994) 6 NWLR (Pt.350) 281. Onu JSC had his say on the issue of failure of the prosecution to investigate a defence of alibi raised by an accused at pages 301 – 302 as follows:-

“Thus once the prosecution through its witnesses establish that they (the witnesses) saw the Appellant committing the offence charge, a defence of alibi by the appellant raised the straight issues of credibility to wit; whether the evidence of the witnesses is believable and if believed, the alibi raised is logically demolished or fizzles into thin air and so doomed.”

See also the case of Patrick Njovens v. The State (supra).

In otherwords,once a defence of alibi has been raise, the burden is on the prosecution through the agency of the Police to investigate and rebut such evidence in order to prove its case against the accuse beyond reasonable doubt. See Adedeji v.The State (1971) 1 All NLR 85. However, the prosecution does not have to investigate every alibi however improbable although where the story of the accused person believed is capable of providing a defence, there is a duty upon the prosecution investigate the story and failure on the part of the prosecution to do so may amount to an admission. See Ozulonye v. The State (1980) 2 NCR 343 and Akpar Ikono v.The State (1973) 5 S.C. 231

Coming back home to the instant case, there is no doubt whatsoever that the Appellant had raised a defence of alibi in his statement to the police under caution which was in evidence as Exhibit ‘B1’ were he stated the names of 6 person including his two wives who could given evidence to support this defence. However, in the course of this evidence on oath before the trial court in support of his defence, the Appellant also said at page 25 of the records as follows –

“I am 60 years old. I am married. I have nine children. MY wives and children have been driven out of my house by the 1st prosecution witness. I live in a family house and I am not the eldest in the family on my mother’s side because the one who was older than me could not the found again. I was alone in the parlour the night 1st prosecution witness came with the dead children. There were people on that day and they all came out. There are 16 rooms in the house. I occupy three of the rooms with members of my family.”

It is significant to note that the Appellant did not repeat his assertion in his cautioned statement to the Police Exhibit B that he had 6 witnesses to support his defence of alibi throughout his oral evidence oath before the trial court where he not only told the Court that at the time of the incident on 3rd November, 2001, his two wives and nine children were not living with him in his three rooms occupied by him the family houses, but the Appellant also clearly stated that he was alone the parlour that night when PW1 and his wife brought the dead child to the house. As the appellant did not tell the trial court where his two wives and children were staying at the time of the incident, at least the evidence of his two wives he mention who were clearly not with him in the house that night of 3rd November, 2001, would not have assisted the Appellant to prove his defence of alibi. Furthermore, there could not have been any question of mistaken identification of the Appellant by his own brother PW1 and his two wifes PW2 and PW3 who not only put the Appellants squarely at the scene of crime but also vividly described the acts of the Appellant of grapping the deceased child Ramoni Ibrahim from his bed and smashing him on the floor resulting in his death that same night before he could be taken to the hospital. Therefore the defence of alibi raised in the present case byte Appellant merely raised a straight issue of credibility between the Appellant’s evidence in support of his defence of alibi and the overwhelming evidence adduced by the prosecution clearly fixing the Appellant at the scene of the crime, the defence of alibi raised by the appellant had logically been effectively crushed as rightly found by the learned trial judge and affirmed by the court below.

The learned counsel to the appellant in his argument in support of the lone issue of alibi raised for determination in this appeal also dropped in a further argument that since the charge of the Appellant for the offence of murder in this case was made against the Appellant in the background of animosity between PW1 and the Appellant who were feuding brothers in their family which allegedly polarised the family into two camps one on the side of the Appellant and the other on the side of PW1 , this fact ought to have been a source of lingering doubt in the evidence of the prosecution fixing the Appellant at the scene of the crime and which the trial court ought to have resolved in favour of the Appellant. This argument to me raised an issue which is tantamount to the Appellant accusing the prosecution’s eye witnesses PW2, PW3 and PW4 of being tainted witnesses whose evidence ought to have been treated with considerable caution by the trial court. The question to be asked therefore is whether or not these witnesses could be described as tainted. A ‘tainted’ witness has been described as a witness who is either an accomplice or who by the evidence he gives may and could be regarded as “having some purpose of his own to serve.” See The State v. Dominic Okolo & Ors. (1974) 2 S.C. 73 at 82; (1974) 1 All NLR 466 at 474; Ishola v. The State (1978) 9 – 10 SC. 73 at 100; Mbenu v. The State (1988) 3 NWLR (Pt.84) 615 and Adetola v. The State (1992) 4 NWLR (Pt.235) 267 at 273. The law in this respect is trite that the evidence of a tainted witness should be treated with considerable caution and be examined with a fine tooth comb. See Mbanu v. The State (supra) per Nnamani, JSC of blessed memory at page 626 of the report.

In the case at hand, the learned counsel to the Appellant duly cross-examined all the three prosecution witnesses as shown on record and I fail to find anywhere in the record where any of the three witnesses was directly or by any implication, accused of being an accomplice or one whose evidence could be regarded as having some purpose of his or her own to serve. In any case there is no evidence anywhere on record that the family of the Appellant and his brother pw1 was polarised into two camps in the course of the trial of the Appellant. This unfounded allegation against the prosecution witnesses therefore has no basis whatsoever in the present case to raise any doubt in the direct evidence of these witnesses to justify the trial court in resolving the alleged doubt in favour of the appellant.

Finally, I may observe at this stage that this appeal being one against concurrent findings of facts of two court below, the appellant is very far from discharging the burden the law places on him of showing that the decision of the courts below were perverse or cannot be supported having regard to the evidence adduced by the prosecution. In situation such as this in the present case, I see no reason whatsoever to disturb the findings of the trial court which were affirmed by the court below that the appellant was indeed guilty of the charge of murder and therefore liable to have been convicted and sentenced to death. See Bakare v. The State (1984) 1 NWLR (Pt.52) 597; Onyelokwo v. The State (1992) 8 NWLR (Pt.230) 444 at 447.

On the whole having resolved the only one issue of the defence of alibi for determination in this appeal against the Appellant, the appeal itself must fail. Accordingly the appeal is hereby dismissed. The conviction of the Appellant for the offence of murder and the sentence of death passed upon him by the trial court and affirmed by the court below are further affirmed by me.

SC.36/2009