Segun Adebiyi V State (2016)
LAWGLOBAL HUB Lead Judgment Report
CHIMA CENTUS NWEZE, J.S.C.
The appellant in this appeal [as the accused person]; one Kwame Wisdom, and others at large, were arraigned at the High Court of Justice, Ogun State. The five counts of the charges laid against them were for the offences of conspiracy to commit felony, to wit, armed robbery and armed robbery of Akeem Kutelu, Isikilu Jimoh and Felix Nchem. They pleaded not guilty.
In their spirited attempt to prove the offences as charged, the respondent called four witnesses. Only the appellant and Kwame Wisdom testified in their respective defences. In its judgment of April 2, 2009, the Court [hereinafter referred to as “the trial Court”] convicted and sentenced the appellant and Kwame Wisdom to death by hanging.
Their appeal to the Court of Appeal [hereinafter simply called “the Lower Court”] having been dismissed, the appellant approached this Court, via his Notice of Appeal, from which he distilled two issues for the resolution of his complaint against the Lower Court’s judgment.
The issues were framed thus:
- Whether the Court of Appeal was right in holding that the trial Court rightly discountenanced the plea of
alibi raised by the appellant
- Whether the Court of Appeal was right in upholding the trial Court’s conviction of the appellant for the offences of conspiracy to commit armed robbery and armed robbery
On their part the prosecution formulated three issues couched thus.
- Whether the Court of Appeal rightly discountenanced the plea of alibi raised by the appellant
- Whether the Court below rightly held that the offences of conspiracy to commit armed robbery and armed robbery have been proved by the respondent against the appellant beyond reasonable doubt
- Whether the appellant was properly identified in the case
My Lords, having regard to the cogency of the defence of alibi, I take the view that only the first issue, which is common to the two briefs, is determination of this appeal. It will, thus, be adopted in the resolution of this appeal. The reason for this approach will soon become evident anon. Before then, however, a brief factual background of the case would not be out of place.
FACTUAL BACKGROUND
The prosecution’s allegation was that, at about 1 am on December 29, 2004, there was an armed robbery operation at Folashade’s compound, Owode-Yelwa, Ogun
State. The tenants in the said house were, allegedly, robbed of various items of property, money etc. PW2, [Isikilu Jimoh, a driver], a tenant in the said house, was said to be one of the victims.
A report of the incident was lodge at the Owode Egbado Police station the following day whereupon a woman Police Sergeant, Iyabode Adeogun, was detailed to investigate it. She was PW4 at the hearing. No suspect was arrested at the scene. On January 4, 2005, Isikilu Jimoh, one of the alleged victims, saw the appellant; the first accused person [Kwame Wisdom] and one other person on their way to a garage on Idiriko Road, also, in Owode.
He, allegedly, recognized them as the people that were involved in the robbery operation. When they boarded a taxi, he [PW2], also, boarded another vehicle. He directed the driver to follow the vehicle they [the appellant and others boarded].
It was at the Military checkpoint that PW2 intimated the Police of what had transpired on December 29, 2004. The appellant and others attempted to escape but they were arrested. The appellant denied the charge. He set up a defence of alibi which was not investigated at all. That notwithstanding, the
trial Court convicted and sentenced him. His appeal to the Lower Court, having failed, he then further appealed to this Court.
ARGUMENTS ON THE SOLE ISSUE
APPELLANT’S CONTENTION
When this appeal came up for hearing on November 5, 2015, Ikenna Okoli, learned counsel for the appellant, adopted the appellant’s brief of argument which was filed on November 4, 2013. On this issue, he pointed out that the alleged robbery took place at night at Owode-Yewa town in Ogun State on December 30, 2004.
He explained that the appellant, in his statement to the Police at the State C.I.D., Abeokuta, denied taking part in the robbery. He, equally, denied being at Owode-Yelwa town on the day of the incident.
He, further, pointed out that, in his said statement, he stated that he was in Cotonou, Republic of Benin, where he was residing at the relevant time. In his testimony in Court, the appellant averred that he was not at the scene of the alleged crime on the said day and only went to Owode-Yelwa from Cotonou on January 4, 2005, to buy PMS (popularly called, “Petrol”).
He cited Balogun v. AG, Ogun State [2002] 6 NWLR (Pt. 763) 512, 536. He contended that the appellant properly, raised
the defence of alibi but the Police did not investigate it, citing Onuchukwu v. State [1998] 4 NWLR (Pt. 547) 576, 592; Ogoala v. State [1991] 2 NWLR (Pt. 175) 509, 521.
He maintained that the appellant, clearly, indicated his whereabouts on the date of the alleged robbery; hence the onus was on the Prosecution to challenge the said defence, citing the testimony of PW4 at page 37 of the record.
Counsel noted that none of the Prosecution’s witnesses, in their respective extra judicial statements, identified the appellant as one of the armed robbers. What is more, the PW1, in his testimony in Court, specifically, stated that it was the first accused person [Kwame Wisdom] that he saw during the robbery operation and not the appellant. Indeed, in his testimony in Court, he did not refer to the appellant at all as one of the robbers.
He, further, pointed out that the Police did not conduct a proper identification parade during their investigation. Afortiori, none of the Prosecution’s witnesses, the alleged victims, conceded that he was called upon, at any time, to identify the accused persons, citing Afolalu v. State [2010] 16 NWLR (Pt. 1220) 584, 616 and other cases.
He drew attention to the fact that the appellant was not arrested at the scene of the crime but was, rather, arrested five days after the date of the alleged crime.
Worse still, none of the Prosecution’s witness had ever seen the appellant before. Counsel maintained that, if there was any identification parade, the PW2 would have given the details of such an exercise in his evidence-in-chief. Even then, in cross-examination, he admitted that “no forms were filed in the process,” citing pages 36-37 of the record. He, therefore, urged the Court to find that the Police did not conduct anyidentification parade.
In his submission, the Lower Court was wrong to hold that the trial Court, discountenanced the said plea of alibi.
RESPONDENT’S ARGUMENT
Counsel for the respondent adopted the respondent’s brief filed on December 22, 2014 and relied on Udoere v. State [2001] FWLR (Pt. 59) 1244, 1258; Onyegbu v. State [1995] 4 SCNJ 275, 285-286 as authorities for his view that the accused, having raised the said defence, had a duty to give details relating to his whereabouts.
He pointed out that the said defence could be demolished in two instances, namely, where theProsecution
adduces sufficient evidence to fix the accused person at the scene and where there is an eye witness to the commission of the crime, Omotola v. State [2009] FWLR (Pt. 468) 3437, 3474.
RESOLUTION OF THE ISSUE
My Lords, in an appeal such as this, this Court need not dissipate its precious time on all the issues framed by the appellants or even the respondent if only issueis determinative of the appeal apropos the principal agitation of the appellant in his Notice of Appeal. Indeed, it is truly strange that the respondent’s counsel opted to contest the appeal instead of conceding to it upon his perusal of the crucial arguments in the appellant’s brief.
Now, the first issue was framed thus:
Whether the Court of Appeal was right in holding that the trial Court rightly discountenanced the plea of alibi raised by the appellant
The prosecution’s case that the alleged robbery took place at Owode-Yelwa town in Ogun State on December 30, 2004. At the earliest opportunity, that is, when the Police confronted him with this allegation, he, promptly, told them in writing in his statement that he was in Cotonou, Republic of Benin, where he was residing at the time, on that day. He
provided detailed particulars as to his where about thereat, page 13 of the record.
He maintained his story during his defence. Indeed, in his evidence-in-chief, he was emphatic that it was on January 4, 2005 that he travelled from Cotonou, Republic of Benin to Owode to buy petrol. The Prosecution did not confute his story. Rather, the PW4, Sgt Emmanuel Julius, the Investigating Police Office [IPO] confirmed that the appellant’s defence included his alibi which he raised at the earliest opportunity when they were still investigatingthe case. Listen to him:
The two accused persons were in custody for that long because we had not concluded investigation. They claimed to live in Igolo which is in Benin Republic; our team could not go there to carry (sic) investigation as that is the duty of the Interpol. We eventually could not investigate this aspect of their statements eventually they were charged to Court.[Page 37 of the record, italics supplied emphasis]
If, as the PW4 deposed, it was the duty of the Interpol to undertake such cross border defences, was the Interpol intimated of the case and the defence for their follow-up action No such evidence was offered.
In all, therefore, the truth remains that the appellant’s defence of alibi: a defence he raised at the earliest opportunity, was not investigated.
This huge lapse in the Prosecution’s case notwithstanding, the trial Court discountenanced that plea. Surprisingly, the Lower Court affirmed that approach. Expectedly, the appellant has urged this Court to interfere with these concurrent findings by holding that the Lower Court was wrong in affirming the trial Court’s approach to the matter.
There is considerable force in this submission. As a general rule, this Court does not make it a habit of disturbing the concurrent findings of two Lower Courts, Woluchem v. Gudi [1981] 5 SC 291, 326; Ike v. Ugboaja [1993] 6 NWLR (Pt. 301) 539, 569; Chinwendu v. Mbamali [1980] 3-4 SC 31; Enang v. Adu [1981] 11-12 SC 25, 42; Nwadike v. Ibekwe [1987] 4 NWLR (Pt. 67) 718; Igwego v. Ezeugo [1992] 6 NWLR (Pt. 249) 561, 576; Lamai v. Orbih [1980] 5-7 SC 28.
However, where as in instant case, there is clear evidence that such concurrent findings are perverse, this Court will, readily, interfere, Ogbu v. State [1999] 14 NWLR (Pt. 637) 1; Adeyemi v. The State [1991] 1 NWLR (Pt. 170) 679;
Adeyeye v. The State (2013) LPELR-19913 (SC) 46; Akpabo v. State [1994] 7 NWLR (Pt. 359) 635; Ejikeme v. Okonkwo [1994] 8 NWLR (Pt. 362) 266.
For this purpose, a Court’s finding is said to be perverse if, inter alia, it took into account certain matters which it ought not to have considered or where it shut its eyes to the obvious or proved facts etc, Baridan v. State [1994] 1 NWLR (Pt. 320) 250, 256; Udengwu v. Uzuegbu [2003] 13 NWLR (Pt. 836) 136, 152; Atolagbe v. Shorun [1985] 1 NWLR (Pt. 2) 360, 375; Nwosu v. Board of Customs and Excise [1988] 5 NWLR (Pt. 93) 225.
In such a case, this Court is bound to interfere and act aside such a decision, NEPA v. Osasanya [2004] 1 SC (Pt. 1) 159; Newbreed Org Ltd. v. Erhomonsele [2006] 5 NWLR (Pt. 974) 499.
The nuances of the defence of alibi have generated handful of lambent prose in both juristic and juridical thought. That should not detain us in this judgment. Suffice it to note that, in a criminal trial, when an accused person raises the said defence [of alibi], his assertion comes to this: he was elsewhere; hence, he could not have been at the scene of the crime at the same time, M. Hor, “Burden of
Proof in Criminal Trials,” in 4 S. AC. L.J Part 11 267, 293.
The cases on this point are legion. Only one or two may be cited here: Archibong v. State [2006] All FWLR (Pt. 323) 1747; [2006] 14 NWLR (Pt. 1000) 349; Onafowokan v. State [1987] 3 NWLR (Pt. 61) 538; Gachi v. State [1965] NMLR 334; Nwabueze v. Eze [1988] 4 NWLR (Pt. 80) 16; Akpan v. State [2002] 5 SCNJ 301; Ozaki v. State [1990] 1 NWLR (Pt. 124) 92; Akeem Agboola v. State [2013] 11 NWLR (Pt. 1366) 619; Yanor and Anor v. State [1965] NMLR 337.
Indeed, it’s root from the Latin etymon, “alias” or other” and “ibi” or “ubi” that is “there” or “where,” from whence the English coinage “alibi” derives, exemplifies the character of this defence. It is this etymological derivative that foregrounds the judicial view that, as defence, it [the defence of alibi] seeks to establish that, at all times material to the commission of the offence, the accused person was nowhere near the locus criminis and, ordinarily, therefore, he could not be expected to be involved in the physical execution of the alleged offence, Ebre v. State [2001] 12 NWLR (Pt. 729) 617, 635.
In effect, a successful defence of alibi has a direct
bearing on the accused person’s responsibility in relation to the alleged offence, M. Hor. “Burden of Proof in Criminal Trials ,” (supra). This explains why it is not, readily, conceded with levity to the accused person. This is because, when properly established, it has the far-reaching effect of exculpating the accused person from complete criminal responsibility, Ebre v. State [supra] 636. It is, thus, an exculpatory defence, Tajudeed Iliyasu v. State [2015] EJSC 1.
As this Court explained in Tajudeed Iliyasu v. State (supra) to be entitled to its beneficent effect, such an accused person must raise it at the earliest opportunity, Hassan v. The State [2001] 6 NWLR (Pt. 709) 286, 305 which would, preferably, be in his extra-judicial statement. This is to offer the Police an opportunity either to confirm or confute its availability, to the accused person, Ibrahim v. The State [1991] 4 NWLR (Pt. 186) 399 ; Nwabueze v. The State (1988) 3 NWLR (Pt. 86) 16; Ikemson v. The State [1989] 3 NWLR (Pt. 110) 455.
Above all, the said defence must be unequivocal as to the particulars of the accused person’s whereabouts and
those present with him, Onyegbu v. The State [1995] 4 SCNJ 275, 285-286; Ibrahim v. State (supra); Balogun v. AG, Ogun State [2002] 6 NWLR (Pt. 763) 512, 535-536; Eke v. The State (2011) LPELR-1133 (SC) 16.
It is only where such an accused person raised the said defence at the earliest opportunity without any ambiguity that a burden is cast on the Prosecution to investigate it, Eyisi v. State [2000] 4 NSCQR 60 and to disprove same, Eke v. The State (supra). Failure to investigate the defence of alibi, raised in such circumstance, will lead to an acquittal, Yanor v. The State (1965) ANLR (Reprint) 199; Bello v. Police [1956] SCNLR 113; Odu and Anr v. The State [2001] 5 SCNJ 115, 120; [2001] 10 NWLR (Pt. 772) 668.
As shown above, at the earliest opportunity, that is, when the Police confronted him with this allegation, the accused person, promptly, told them in writing in his statement that he was in Cotonou, Republic of Benin, where he was residing at the time on that day. He provided detailed particulars as to his whereabouts thereat, page 13 of the record.
He maintained his story during his defence. Indeed, in his evidence-in-chief, he was emphatic that it was on
January 4, 2005 that he travelled from Cotonou, Republic of Benin to Owode to buypetrol.
As, already, shown above, the PW4, Sgt Emmanuel Julius the Investigating Police Officer (IPO), confirmed that the appellant’s defence included his alibi which he raised at the earliest opportunity when they were still investigating the case. According to him:
The two accused persons were in custody for that long because we had not concluded investigation. They claimed to live in Igolo which is in Benin Republic; our team could not go there to carry (sic) investigation as that is the duty of the Interpol. We eventually could not investigate this aspect of their statements eventually they were charged to Court.
[page 37 of the record]
Now, having disclosed the said defence at the earliest time, the burden was on the Prosecution to investigate it, Eyisi v. State (Supra) 595 596 with a view to either confirming or disproving it, Abubakar Ibrahim v. State [1991] 3 LRCN 1010; Onyegbu v. State [1995] 4 SCNJ 275. It was, thus, insufficient, to assert, without more, as the PW4 did that “our team could not go there to carry (sic) investigation as that is the duty of the
Interpol…”
The implication is that, having [by his said defence of alibi] raise a corresponding doubt that he could not have committed the acts which constituted the crime, his responsibility for the crime had not been shown beyond reasonable doubt as the Prosecution failed to erase that doubt by confuting his alibi. He must, therefore, be acquitted and discharged, Ebre v. State (supra) at page 636; Onuchukwu v. State [1998] 4 NWLR (Pt. 547) 578, 592.
Quite apart from the above exculpatory defence of alibi, there was another serious flaw in the case which the Prosecution presented. As shown above, the alleged victims never saw the accused persons before the alleged incident. What is more, the alleged operation took place at an unholy hour of the night, precisely, at one ante meridian. The encounter of the victims with the armed robbers was very short-lived.
Against this background, I endorse the submission that an identification parade was imperative. Yet, there was none, Ikemson v. State [1989] 3 NWLR (Pt. 110) 455; Okosi v. State (1989) 1 NWLR (Pt. 100) 642; Chukwu v. State (1996) 7 NWLR (Pt. 463) 686; Eyisi v. State [2000] 15 NWLR (Pt. 691) 555.
As this Court held in Afolalu v. State (2010) 16 NWLR (Pt. 1220) 584, 616 –
Identification parade is not a sine qua non to a conviction for a crime alleged. It is only essential in the following instances:
(a) Where the victim did not know the accused [person] before and the first acquaintance with him was during the commission of the defence;
(b) Where the victim or witness was confronted by the offender for a very short time and
(c) Where the victim, due to time and circumstances, might not have had the full opportunity of observing the features of the accused [person]
The decision on this point are, actually, many. Only a handful will be cited here, Ikemson v. State [1989] 3 NWLR (Pt. 110) 455; Okosi v. State [1989] 1 NWLR (Pt. 100) 642; Khaleel v. State [1997] 8 NWLR (Pt. 516) 237; Otti v. State [1993] 4 NWLR (Pt. 290) 675; Eyisi v. State [2000] 15 NWLR (Pt. 691) 555; Attah v. State [2010] NWLR (Pt. 1201) 190, 225.
Against the above background, this Court is under obligation to interfere with the findings of the Lower Courts notwithstanding their concurrence, NEPA v. Osasanya (supra); Newbreed Org Ltd v. Erhomonsele (supra). Accordingly, I find that this appeal is
meritorious and ought to be allowed.
In consequence, I hereby enter an order setting aside the judgment of the Lower Court which affirmed the decision of the trial Court. In their place, I order the acquittal and discharge of the appellant.
Appeal allowed.
SC.483/2013
