Shuaibu Abubakar & Anor V. The State (2016)
LawGlobal-Hub Lead Judgment Report
AMINA AUDI WAMBAI, J.C.A.
This appeal is from the decision of the Kano State High Court in charge No. K/12C/2013 delivered on 13th May, 2015 by Hon. Justice Ahmed T. Badamasi. The 1st and 2nd Appellants were arraigned before the Court on a six (6) count charge of Criminal Conspiracy, culpable homicide punishable with death, voluntarily causing grievous hurt to Fatima Iliyasu and Ibrahim Iliyasu, entering into the house of Mallam Iliyasu Idris as members of an unlawful assembly with common intention to commit Criminal trespass, all punishable under Section 97, 221, 248(2) and 102 respectively, of the Penal Code Law of Kano state, of Nigeria (Cap) 105, 1991.
The charge allege that the 1st and 2nd Appellants on or about the 22nd May, 2011 about 22:30 hours in company of Sule Burda, Hamisu Dogo, Hassan Kilale, Yusuf Dawa, Ashiru Mai-Laya, Nasiru Boka all at large, were agreed to do an illegal act and trespassed into the house of Mallam Iliyasu Idris and caused grievous hurt to Fatima Iliyasu and Ibrahim Iliyasu as well as stabbing Ashiru Iliyasu to death with a sharp knife on his chest with the knowledge that death was the
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probable consequence of their action.
The two Appellants pleaded not guilty to all the six (6) counts charge consequent upon which the case proceeded to trial in which the prosecution called a total number of six (6) witnesses and tendered 6 Exhibits in proof of their case. In denying the charge the 1st and 2nd Appellants testified as DW1 and DW2 respectively and called 3 witnesses. At the close of hearing, the respective Counsel filed and adopted their final written address before the Court. The learned trial Judge found the Appellants guilty on counts 1, 2, 3, 4 and 5 and sentenced them to 2 years on count 1, 3 years on counts 3 and 4, one year on count 5 and death by hanging on count 2.
The Appellants were dissatisfied with the decision and commenced this appeal vide a Notice of Appeal dated 29/06/2015 predicated upon 17 grounds of appeal.
The brief facts of the case are that on 22/05/2011 a political scuffle ensued between two opposing groups of one Mustapha Abubakar and the group of Sabiu Iliyasu which resulted in the death of Mustapha Abubakar, the full brother of the 1st and 2nd Appellants. The matter was reported to the Police. The late
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Mustapha’s group also went to the house of Sabiu’s father, Mallam Iliyasu Idris, to arrest Sabiu in the course of which one Ashiru Iliyasu was killed. This 2nd incidence was also reported to the same Dala Police Division but before completion of investigation, consequent upon a petition written by Mallam Iliyasu against the Dala Police Division, the matter was transferred to the State C.I.D. for proper investigation. The two Appellants were arrested in connection with the death of Ashiru Iliyasu.
In compliance with the Rules of this Court both Counsel filed and exchanged their briefs of argument. The Appellants’ brief of argument dated and filed on 07/09/2015 was settled by Nureini Jimoh Esq. The Respondent’s brief of argument dated and filed on the 13/10/2015 was settled by Mrs. Binta B. Wudil, Deputy Director, Kano State Ministry of Justice in response to which the Appellants filed a reply brief on 31/12/2015, settled by Nureini Jimoh Esq.
I find no need to consider the reply brief as the Respondent did not raise any new issue to warrant the Appellants’ reply brief. The Appellants reply brief merely adumbrated and re-argued the Appellants’
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brief. A reply brief is not a tool for the Appellants to have a 2nd bite at the cherry to eat to his fill while the Respondent is impoverished neither is it a repair kit to mend or suture the Appellants brief.
In the Appellants’ brief of argument, the learned Counsel formulated one sole issue from the 17 grounds of appeal, to wit:-
“Whether the conviction and or sentencing of the Appellants by the trial Court on the various heads of count in the charge was proper and not liable to be set aside by this Honourable Court”.
In recasting the issue to reflect what in the opinion of Respondent’s Counsel represents the true position of the conviction, learned Deputy Director for the Respondent, postulated one issue for determination, thus:-
“Whether the conviction of the Appellants by the trial Court on lst, 2nd, 4th, 5th and 6th Counts was proper’,.
I am of the view that the distilled issue as formulated by the learned Counsel for the Appellants succinctly encompasses the issue distilled by the learned Respondent’s Counsel. I adopt the Appellants’ issue upon which this appeal will be considered and determined.
In arguing the sole
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issue and submitting that the prosecution/Respondent failed to prove the Counts of charge against the Appellants beyond reasonable doubt, learned Counsel for the Appellant set out and tabulated the various heads of counts with the Section of the Penal Code punishing the offence as well as the sentences passed on the Appellants for each count for which they were convicted.
On Counts 3, 4 and 6, it was submitted that the sentencing of the Appellants on Counts 3 and 4 (voluntarily causing grievous hurt to Fatima Iliyasu and Ibrahim Iliyasu respectively, punishable under Section 248 (2) of the Penal Code, should be set aside same being a nullity as there was no conviction on the Counts.
On Count 6, it was submitted that the Respondent having not filed any cross-Appeal is deemed to have accepted the failure of the Court to sentence the Appellants for the offence though convicted for it, and both Counts 5 and 6 are punishable under Section 102 and the Appellants having been convicted and sentenced for Count 5, it would be oppressive, offensive to the Rule against duplicity of charges and amount to punishing the Appellants twice for the same offence
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contrary to Section 36(10) of the Constitution of the FRN 1999 (as amended). He referred to NIGERIAN ARMY v. AMINU KANO(2010) 5 NWLR (PT. 1188) 429, DR. JOSEPH AMEDE V. FRN (2009) LPELR – 8212 (CA), ARO V. FABU LUDE (1983) ALL NLR 67, AMAEFULE V. THE STATE (1988) NWLR (PT. 75) 288 AND ONAKOYA V FRN (2002) NWLR (PT. 779) 595.
He stated that while count 5 on unlawful assembly to commit Criminal trespass is punishable under Section 102, Count 1 and Count 6 are on trespass and Criminal trespass respectively which are punishable under Sections 348 and 349 whose mens rea was not proved. NJOKU v. STATE (2013) ALL FWLR (Pt. 689).
On Count 5, it was submitted that the offence punishable under Section 102, Penal Code is unlawful assembly which can only be committed by at least five (5) persons with common object of committing any of the 5 offences in Section 100; and persons at large cannot be referred to as “accused persons” until brought to trial nor can the two accused/Appellants be referred to as “several person” citing STATE v. ONYEUKWU (2004) 14 NWLR (Pt.893) 340. Moreover, the mens rea of the offence was not proved and the failure of the Court to
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consider the evidence for the defence is fatal citing IBRAHIM v. STATE (1991) 4 NWLR (Pt. 186) 399 SC, ADAMU V. STATE (1991) 6 SCNJ 33.
That the finding and conclusion is therefore perverse – CHEDI v. AGF (2006) 13 NWLR (pt.997) 308, 326 F-G.
On Count 1, which is conspiracy to commit Criminal trespass, Counsel submitted that the Appellants having been acquitted of the main offence in Count 6, they can no longer be convicted of conspiracy to commit that offence, calling in aid the case of AMADI v. STATE (1993) NWLR (PT.314) 644, 677. That neither the evidence of the lone act that the 2nd accused was seen hitting the door in the house nor the mere fact that they are brothers or jointly charged can support the charge of conspiracy.
Additionally, that the sentence of 3 years passed on the Appellants under this Count 1 is excessive as the offence of conspiracy to commit house trespass is punished maximally by six months (6) as the substantive offence itself carries a maximum term of a year imprisonment.
On Count 2, which is for culpable homicide punishable with death, learned Counsel restated the cardinal principles of Criminal justice of the
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presumption of innocence of an accused person and the burden on the prosecution to prove the guilt of an accused person by proving beyond reasonable doubt each and every ingredient of the alleged offence. He x-rayed the evidence of the six (6) prosecution witnesses vis-a-vis those of the 5 defence witnesses and contended that the prosecution did not prove the Count against the two Appellants.
On the sequence of events that occurred on the fateful day after Mustapha, the brother of the two Appellants was killed by some people one of whom was suspected to be one Sabiu, leading to the arrest of the Appellants, Counsel submitted that there were two visits to the house of Mallam lliyasu, Sabiu’s father; the 1st of which was by the Police from Dala Police Division with the Appellants as pointers to effect the arrest of the Sabiu during which the Police arrested from the house, Sabiu and one other person and took them to the Dala Police Station and that they could not have seen the corpse of Ashiru and abandoned it, whose death was only reported the next morning. The 2nd visit was by a group of people who attacked Mallam Iliyasu’s house.
It was contended
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that the PW1, the only eye witness, whose evidence does not tally with those of PW2, PW3 and PW4 who testified that she saw the 2nd Appellant held the late Ashiru by the neck and stabbed him with a knife on his chest when asked at the Police Station to identify the 2nd Appellant (Haladu) pointed at the 1st Appellant, Shuaibu. That the failure of PW1 to identify the 2nd accused weakens her evidence and the Court should be cautious in accepting her evidence given later implicating others, citing NNUNKE v. STATE (2003) 14 NWLR (Pt, 840) 219, OKECHUKWU V. STATE (2012) LPELR 15360 (CA), EYONAOWA V. COP (2014) LPELR – 22889 (CA). Such evidence requires corroboration to guard against mistaken identity. CHIMAOBI UZOMA v. THE STATE (2013) LPELR 20650 (CA) was cited in support.
Additionally, that in the statement of the father of PW1 and one Hansatu to the Police, they had stated that they did not recognize any person.
Similarly, the PW5 and PW6 who completely jettisoned the investigation and case diary from the Dala Police Division, did not conduct any further investigation save the recording of the statements of Appellants, Exhibits A and E and
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failed to support the basis of their discovery of how the Appellants were linked to the crime. Their evidence that they snapped the corpse on 17/06/2011 which had been buried on 23/05/2011 cannot be believed as the evidence of PW1 cannot be trusted just as the medical report without an autopsy does not support the conclusion that the Appellants killed Ashiru.
It was his further submitted that the evidence of the official witnesses, (the Police), DW3 and DW4 is that the two Appellants were with them at the material time of the commission of the offence, that PW1 failed to recognize the 2nd Appellant whom she alleged she saw stabbing Ashiru; that Ashiru’s father decided to Petition against the Division (Dala Police Division) when his request of a plea bargain by considering the death of Ashiru as nullifying that of Mustapha and setting free his son, Sabiu, both families having lost one person, was turned down. Further, that the names of the persons complained against in Iliyasu’s petition do not include the Appellants names.
It was thus submitted that the evidence of the two Police officers, DW3 and DW4 sufficiently raised the plea of alibi and
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places on the prosecution the burden to investigate and disprove the alibi ABUBAKAR DAN SHAHA & ORS. V. THE STATE (2005) 1 NCC 24/46, DAGAYYA v. STATE (2005) 1 NCC 532/543. That the learned trial Judge was wrong to have held that alibi was not raised timeously and also wrong to have rejected the evidence of DW3 and DW4 as it failed to properly evaluate the evidence, inviting us to intervene to set aside the findings in the interest of justice – EHOLOR v. OSAYANDE (1992) 7 SCNJ 217, OKUNZUA V. AMOJU (1991) 6 SCNJ 6.
Responding to these arguments, learned Counsel to the Respondent conceded that the Appellants conviction on Counts 3 and 4 were in error and that same be set aside. We were however urged to invoke our powers to sentence the Appellants for count 6.
On Count 5, it was submitted that upon the evidence of PW1 and PW2 since the attackers who went to the compound were more than 30, the ingredients of the offence of an unlawful assembly were proved and urged that their conviction and sentence be upheld.
On Count 1, we were urged to uphold, the conviction and sentence because the punitive Sections of the offence of conspiracy are
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Sections 350, 351 and 352 and not 349 and that based on the evidence of PW1, PW4 and PW5, the learned trial Judge found that some people invaded the house with dangerous weapons and injured Ibrahim and killed Ashiru. He argued that conspiracy can be inferred from circumstantial evidence and not necessary that conspirators be seen together. SULE v. STATE (2009) 17 NWLR (Pt.1169) 33, 58.
On Count 2, it was submitted that the distinction between the evidence of family members of the deceased and that of the official witnesses, the Police, created by the Appellants Counsel does not exist in the Evidence Act as blood relations cannot only testify but sometimes are the only available witnesses for the prosecution. Citing NKEBESI v. STATE (2010) 5 NWLR (Pt 118) 471 SC, 484.
Counsel submitted that the evidence of PW1 and PW2 were unshaken and support the finding and conclusion of the learned trial Judge at page 222 of the record that the prosecution proved all the ingredients of the offence beyond reasonable doubt against the Appellants. Also, that the suggestion made by the Appellants’ Counsel that possibly the Mustapha group in retaliation, might
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have injured Ashiru during the political melee is contrary to the finding of the learned trial Judge which was based on credible evidence and urged that this Court should not interfere citing MUSA v. STATE (2009) 15 NWLR (Pt. 1165) 467, 488 SC.
On the submission of Counsel for the Appellants that the defence has no onus of proving alibi, it was submitted that the accused has the evidential burden to provide the particulars of his whereabout at the material time if he desires that question to be resolved in his favour. He referred to ESANGBEDO v. STATE (1989) 4 NWLR (Pt. 113) 57 82 SC and that the trial Judge was right in relying on YANOR v. THE STATE (1965) NWLR 337 for though the alibi was not raised during investigation to afford the prosecution the opportunity to investigate same, the trial Judge still considered and rejected the defence because the evidence of PW1 did not only fix the Appellants at the scene of crime but also in the commission of the crime citing DAGGAYA v. STATE (2006) 7 NWLR (Pt. 980) 637, 668, ADAVA V. SATE (2006) 9 NWLR (Pt. 984) SC, 162 172 SC, @ 132. We were urged to resolve the issue against the Appellants and dismiss the
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appeal.
It is now axiomatic as it is trite that the cardinal principle of our Criminal Law is that the burden of proving that any person has been guilty of a crime or a wrongful act, subject however to certain exceptions (which do not apply here) rests squarely on the prosecution who asserts the commission of the crime, to prove same beyond reasonable doubt by virtue of Section 135(1) of the Evidence Act Cap E. 14, 2011 which provides as follows:-
“lf the commission of a crime by a party to any proceedings is directly in issue in any proceeding Civil or Criminal, it must be proved beyond reasonable doubt”.
The burden is static and never shifts or changes – ABDULLAHI v. THE STATE (2008) 17 NWLR (PT. 1115) 203 SC. To Secure or sustain a conviction, the prosecution must prove each and every ingredient of the alleged offence beyond reasonable doubt or else the accused will be entitled to an acquittal. ORJI v. STATE (2008) 10 NWLR (Pt. 1094) 31 SC, KAYODE V. STATE (2012) 11 NWLR (Pt. 1312) 528, AFOLABI V. STATE (2010) 6-7 MRSC 187, 220.
On the method of proving the guilt of an accused person, it is now firmly settled that the guilt of an
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accused person may be proved either by the evidence of a person who witnessed the commission of the offence (eye witness), by confession of the accused or by circumstantial evidence. IGRI V. STATE (2012) 16 NWLR (Pt. 1327) 522, HARUNA V. A.G.F. (2012) LPELR – 7821 (SC), OKPAKO V. THE STATE (2012) LPELR – 9468 (CA), EMEKA V. STATE (2005) 4 LRCN 259.
I shall consider the charge Counts in this Order:-
Count 3, 4, 6, 2, 1& 5.
Counts 3 and 4
On these Counts 3 and 4, it was conceded by the Respondent’s Counsel that the learned trial Judge having held that the Counts were not proved, it was wrong to have convicted them. Accordingly, the learned Counsel for the Respondent having conceded that the Appellants were wrongfully sentenced for the unproved Counts, the 2 years and 3 years sentences respectively passed by the Lower Court against the Appellants are hereby set aside.
On Count 6, the learned trial Judge having failed to sentence the Appellants on that Count and there being no cross-appeal or a notice of Intention to contend, the Appellants cannot be sentenced since there is no formal complaint or challenge against that portion of the
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Judgment.
On Count 2, the essential ingredients which the prosecution must prove to succeed and secure a conviction are firmly settled and have been stated and re-stated in a plethora of decisions. These are:-
(a) That the death of a human being has taken place,
(b) That the accused caused the death of the deceased,
(c) That the act was done with the intention of causing death, or the accused knew or had reason to know that death would be the probable cause of his action.
These necessary ingredients must co-exist for the prosecution to succeed. MUSA V. THE STATE (2009) 15 NWLR (Pt. 1165) 467 C-E, OHEMAJE V. THE STATE (2008) 15 NWLR (Pt. 1109) 57.
It is noted here that there are no confessional statements from the Appellants. The prosecution relies on the direct evidence of eye witnesses. Indeed credible evidence of an eye witness is the best evidence of proving the guilt of an accused person next only to an unequivocal, credible, direct and free confessional statement of the accused which has been described as the best evidence. The superiority in ranking of a confessional statement over and above the other two methods has been
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affirmed and stamped in a plethora of decided cases.
This is because as Tobi JSC put it, in AKPA v. STATE (2008) 14 NWLR (Pt. 1106) 72, 95 CD, it is evidence from the horse’s mouth, the accused himself who knows what he did and says it or is said in the Court. See also SOLOLA v. STATE (2005) ALL FWLR (Pt. 269) 1791 @ 1782.
In the absence of a confessional statement as in this case, the best evidence would be the evidence of credible eye witness or witnesses who saw and witnessed the occurrence of the incident when and how vividly it happened and is able in his evidence, to print out from his memory exactly what he saw. Such evidence would amount to an eye witness account of the commission of the offence. It is the on the spot narration of the event narrated by the person who said he saw it happened and it is the best evidence. In OJO v. GHARORO (1999) 1 NWLR (Pt. 615) 374, 387 it was held that:-
“The evidence of on eye witness is the best evidence and it attracts the most probative value. Such evidence which is direct is relevant and admissible and towers high above hearsay evidence”.
See also MOSES V. STATE (2002) 1 NWLR (Pt. 694) 314 per
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Adekeye JCA (as he then was), AKINLOLU v. STATE (2015) LPELR SC 635/2013.
The Law is firmly settled that an accused can be convicted solely on a clear, credible unequivocal and unimpeachable evidence of a single eye witness without any need for corroboration – ADELUMOLO V. THE STATE (1988) 1 NWLR (Pt. 73) 683., ALI & ANOR v. STATE (1988) 1 NWLR (Pt. 68) 1. Such a clear, credible and positive evidence of an eye witness which positively fixes an accused at the scene of crime, I dare say, also dislodges and destroys any alibi that may be put forward by an accused person. THE STATE v. AZEEZ (2008) 14 NWLR (Pt. 108) 439, IDIOK V. THE STATE (2008) 13 NWLR (Pt. 1104) 225, VICTOR V. STATE (2013) LPELR – 20749 (SC).
See also DAGGAYA v. STATE (supra) AND ADAVA v. STATE (Supra) relied upon by the learned Counsel to the Respondent.
Now, in this appeal, there is no contention with regards to the proof of the first ingredient of the culpable homicide punishable with death. The death of a human being, Ashiru Iliyasu, took place as shown by the testimonies of both the prosecution and defence witnesses, DW3 and DW4 inclusive as well as the Medical Report,
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Exhibit C and the photograph of the deceased, Exhibits B and B1.
What is hotly contested is whether the Appellants caused the death of the deceased, Ashiru by doing an act with the intention of causing the death or knew or had reason to know that death would be the probable and not only likely cause of their action.
The evidence as offered by the prosecution through PW1, 2, 3 and 4 is that on the fateful day as some of the occupants of the household of Mallam Iliyasu were preparing to sleep, they heard a voice outside calling “Shuaibu” and some people rushed into the house. They started hitting on the door of the room where Sabiu and Sama’ila were staying trying to force it open and the door was opened. The 1st Appellant, (SHUAIBU) said they would kill at least 12 people in the house.
She also testified that 1st Appellant said they should start killing their mother and attempted to stab her in the stomach but she resisted. PW3, Ibrahim Iliyasu was also cut with a knife on his hand, PW1 tied the cut to stop the bleeding and their father took him to the hospital. PW4, Rabi’u Iliyasu testified that he was accosted by the 2nd Appellant on his way
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when returning from school and the 2nd Appellant brought out a knife when he responded in the affirmative to the 2nd Appellant’s question if he, PW4, was brother to Sabiu, but one Aminu intervened. Later, he saw the 1st Accused/Appellant hitting one of the windows in the house. Meanwhile, after the people had gone, Ashiru was discovered laying dead in the room.
The evidence against the 2nd Appellant is that of PW1 who said she saw the 2nd Appellant held Ashiru, (the deceased) on his neck and stabbed him with a knife on his chest, and that of PW4 who testified that the 2nd Appellant had, just before the incidence, on his way home, gripped him on the waist wanting to stab him with a knife but for the intervention of one Aminu.
The pertinent question is whether the evidence of these witnesses are credible and fix the Appellants not only at the scene of crime but also to the commission of the crime.
Beginning with the 1st Appellant, the combined evidence of PW1, PW2 and PW4 against the 1st Appellant is that a voice was heard outside the house calling Shuaibu, Shuaibu, and they saw him (1st accused – Shuaibu) among those who were hitting the door
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(according to PW1) or the window (according to PW4) saying that they would kill at least 12 people in that house, and that he attempted to stab their mother with a knife on her stomach but she resisted. He (1st Appellant) did not hit or stab anybody.
The learned trial Judge found the allegation of attempt to stab PW1’s mother unproved and discharged both the 1st and 2nd Appellants of the Counts of causing grievous hurt to the said mother of Sabiu – Fatima. PW4 who testified in chief that the 1st Appellant was one of those hitting at the window and saying they would kill at least 12 people stated in cross-examination that:-
“The 1st time they came, I was not there, so I could not say what happened in the house but the 2nd time they came they only entered the house and left. Police men come and arrested two of my brothers, I was not there when they came. It was around 12 midnight…..when I returned to the house I saw the corpse of my brother….”
According to the evidence of PW1 and PW2 the attackers were still making efforts to force open the room where Sabiu had escaped to from the assailants, when the Police came, forced the room opened and
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arrested Sabiu and PW2 (Sama’ila) from the room.
Contrariwise, the position of the defence is that the Appellants only acted as pointers to the Police to effect the arrest of Sabiu. Their evidence also like that of PW1 and PW2 is that the room in which Sabiu and one other, (PW2) locked themselves in, was forced opened by the Police from where the Sabiu and PW2 were arrested and taken to the Dala Police Station. At the Police Station, the 1st accused made a witness statement on the death of his bother, Mustapha and that it was the following morning that the death of Ashiru was reported to the Police.
Investigation into the death of Ashiru commenced but while still ongoing, sequel to a petition written by Ashiru’s father, Mallam Iliyasu Idris, the Assistant Inspector General of Police (AIG) Zone 1, Kano directed a thorough investigation and the matter was transferred to the State C.I.D.
In the course of their investigation after the receipt of the case diary from Dala Division, on 17/06/2011, PW5 along with others including PW6, visited the scene, recorded statements from witnesses, took photographs of Ibrahim Iliyasus hand where he was
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stabbed, and also of the corpse of the deceased, almost a month after the corpse was buried. The photographs are Exhibits C7, C8 and C9. They also requested for the medical report Exhibit C. PW6 recorded the statement of the 1st Appellant in Hausa Language and immediately after, the 1st Appellant made an additional statement which PW6 also recorded in Hausa Language. Both were admitted as Exhibits E and E1. Neither PW6 nor any Police officer translated Exhibits E and E1 from Hausa to English. Exhibits E and EI are at pages 186-187 and 188-189 respectively. However, by a motion on notice dated 21/06/2015 the Ministry of Justice, sought and was granted leave to tender the certified true copy of the English translated copy of Exhibit E only, which is a pages 141- 142 of the record.
Admittedly, Exhibit E is not a confessional statement; but why was Exhibit E1 not translated or caused to be into English Language by the prosecutor as was done of Exhibit E.
Both Exhibits E and E1 were recorded by PW6 and both constitute the extra judicial statements of the 1$ Appellant. Exhibit E1 as PW6 said was an additional statement.
The reasonable explanation is
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that if it had been translated, it would have been unfavourable to the prosecution for which reason, same was not translated. The failure to cause the said Exhibit EI to be translated into English Language which is the Language of the Court in my view, properly calls for the invocation of Section 167(d) of the Evidence Act against the Respondent to the effect that had the statement been translated, it would have gone against them and in favour of the 1st Appellant. See EBOH v. PROGRESSIVE INSURANCE COMPANY LTD (1987) 2 QLRN 167, AREMU V. ADETORO (2007) 16 NWLR (Pt. 245) 408. This is more so that the 1st Appellant claims to have pleaded alibi.
Significantly, it is the evidence of PW5 at page 98 of the record that the petition he received written by Sabiu’s father was that “the 2nd accused standing trial and other persons now at large conspired to commit the stated offences. He did not state that the name of the 1st Appellant was among the people so mentioned. This evidence of PW5 is reinforced by that of PW6 who upon being shown Exhibit D, the petition itself, stated thus “the name of the accused are not in this Exhibit (see the very top page 108 of the
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record). These pieces of evidence are in tandem with the evidence of 1st Appellant in cross-examination in answer to a question when he answered that he was in the Court because he choose to accompany his brother to be charged. (Page 115 of the record). This is the position of the 1st Appellant as put forward by the Police at the Dala Division; particularly, DW3, that the 1st Appellant was at the material time with him at the Police Station. The 1st Appellant in his evidence stated that he was with the Police up to 2:30 am. (Page 115 of the record). The learned trial Judge however rejected both the 1st Appellant’s evidence and those of DWs 3 and 4 on the issue of alibi on the ground that the two are contradictory.
One set of evidence is contradictory to another when it asserts or affirms the opposite of what the other asserts and not necessarily when there are some discrepancies. Contradictions between two pieces of evidence goes rather to the essentiality of something being or not being at the Same time. See AYO GABRIEL V. THE STATE (1989) 5 NWLR (Pt. 122) 457, DAGAYYA V. STATE (2006) 7 NWLR (Pt. 980) 637, OGOALA V. STATE (1991) 2 NWLR (Pt. 175) 509.<br< p=””>
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A piece of evidence is contradictory to the other where it asserts or affirms the direct opposite of the other and are diametrically different from the other, for instance evidence that asserts that the sun rises from the West will not only be contradictory to one that asserts that it rises from the East but would be completely incredible. Similarly, a piece of evidence that asserts a person to be dead is contradictory to the other that asserts or affirms the person to be alive, or one that asserts a particular person to be female will be contradictory to the other that asserts that person to be of the male gender. So will be the evidence that asserts an object to be round in shape and crystal white in colour be contradictory to another that asserts the object to be square shaped and black in colour.
The evidence of the 1st Appellant that he left the Police Station at about 2:30 am is not necessarily contradictory to that of DW3 that 1st Appellant slept at the Police Station bearing in mind that what is in issue is the relevant time when the offence was allegedly committed in view of the glaring evidence by all the prosecution witnesses that the offence
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was committed between 9:00 PM and 9:30 PM. What is important is whether at the material time that the offence was committed, the 1st Appellant was at the Police Station with the DW3. The evidence or statement of the 1st Appellant would have been contradictory to that of DW3 and DW4 if the Appellant had not gone to and been with the Police at all during the entire period. Therefore the difference between the evidence of the 1st Appellant that he left the Police Station at 2:30 am from that of DW3 that the Appellant slept at the Police Station is a mere discrepancy and not a contradiction.
As to the time the 1st Appellant went to the Iliyasu’s house and what he did in the house, his evidence at page 113 of the record is that on the instruction of the Police they took the corpse of his late brother, Mustapha, to Sabiu’s house upon receiving information that Sabiu and the others were sitting in front of their house. He continued:-
“As we parked where the people were sitting, they all entered the house, and the Policeman and myself pursue them. Some of them jumped over the wall but one of them Sabiu entered o room and locked it up. The Policeman then
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brooked (sic) the door they arrested the two persons with weapons and were taken to the Police Station and detained…”
This evidence which was not controverted in cross-examination is in tandem with that proffered by DW3.
Similarly, PW5 and PW6 of the State C.I.D. who took over and commenced investigation on 17/06/2011 rather than support their assertion that investigation linked the Appellant to the crime, PW5 affirmed that the Appellant denied committing the offence.
The cumulative effect of all these is that the later investigation conducted by the PW5 and PW6 did not change or alter the net effect of the investigation conducted by DW3. The 1st accused all through the investigation and trial before the Court denied committing the offence. DW3 who was the Police Officer who first investigated the case also testified for the Appellant confirming that he was together with the Appellant at all material time, though this was rejected by the learned trial Judge. I have earlier in his Judgment held that the basis upon which the alibi was rejected by the Lower Court is wrong.
In a criminal trial, where an accused person consistently denies
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the commission of the offence and makes no confessional statement, an eye witness evidence against the accused must unequivocally and directly fix him not only to the scene of the crime but also to the commission of the crime. DAGAYYA v. STATE (SUPRA). As to whether the 1st accused was fixed to the scene of crime and the commission of the offence, I shall first proceed to consider the evidence against the 2nd Appellant before answering the question.
For the 2nd Appellant, the prosecution’s evidence consist of the eye witness evidence of PW1 and the evidence of PW4 who stated that just before the incident, the 2nd Appellant had gripped him by the waist and about to stab him with a knife but for the intervention of one Aminu. However, the evidence of PW4 relates to an incident that happened outside the scene of crime and before the incident complained against as he admitted he did not witness the incident thus, the prosecution’s star witness against the 2nd Accused/Appellant is PW1 whose evidence, inter alia, runs thus:-
“The 2nd Appellant then held Ashiru (deceased) by the neck and then stabbed Ashiru with a knife on his chest. He also inflicted
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another injury on him on the upper part of his leg. Ashiru then tried and walked into the room and fell down. They then held Sabiu and started cutting him with knives they tried to move him outside but he resisted, he entered into a room and fell down….”
The 2nd Appellant raised the defence of alibi in his evidence before the Court that he was staying with the corpse of his brother, Mustapha throughout the night until the next morning when the corpse was buried. His senior sister, Hadiza Abubakar Nuhu, DW5 also testified to that effect. However, in a diametrically different posture, the evidence of DW3 is that he was together with the 2nd Appellant at the Police Station throughout the time of the incident, that is at the material time. This is obviously and manifestly unbelievable. The 2nd Appellant could not have been at the Police Station throughout the material time and at the same time being together with the corpse in the house throughout the same period. It is humanly and physically impossible for the 2nd Appellant to be at the two different places at the same time. This contradictory evidence of the defence completely demolishes and destroys
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to ruins the alibi raised by the 2nd Appellant in his defence.
This serious contradiction in the evidence of the defence only helps to destroy the protective fortress it tried to build. Where the defence by its own hands disproves the defence of alibi, what need will there be for the prosecution to demolish what is already ruined? There is no further obligation on the part of the prosecution to investigate and disprove the alibi, more so that it was not raised in his statement to PW5 at the State C.I.D. Office, see OZAKI & ANOR V. STATE (1990) 1 NWLR (Pt. 124) 92.
The Law is settled that the defence of alibi must be timeously raised with all the necessary particulars supplied as to the time, the place(s) and persons with whom the accused person was at the material time so as to afford the prosecution the opportunity to investigate same. NSOFOR v. STATE (2002) 10 NWLR (Pt. 775) 274, OGOALA V. STATE (1991) 3 SC, AREMU v. THE STATE (1991) 7 SCNJ,
Where it is not timeously raised, the burden no longer rests on the prosecution but on the defence to prove the alibi. IBRAHIM v. STATE (1989) 4 NWLR (Pt. 110) 455. See also the case of YANOR V. STATE
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(1965) relied upon by the learned trial Judge.
The 2nd Appellant in this case who did not in his statement to PW5 but in the witness box raised with conflicting stories the issue of his not being at the locus criminis at the material time raises not only a new issue entirely from alibi – ABUBAKAR v. IBRAHIM (1991) 4 NWLR (Pt. 186) 399,, but also destroys the very foundation of what he aims to build.
I cannot really think of a situation where a Court of Law will rely on such conflicting stories of alibi raised in the witness box to fault the prosecution’s failure to investigate same.
The 2nd Appellant having by his conflicting stories destroyed the alibi, cannot be said to have discharged the onus of proving the alibi, and the learned trial Judge was therefore grounded in Law to have held that the burden of proof shifted to the 2nd Appellant.
However, it is not yet a success story for the prosecution as the crashing of the alibi raised by the Appellant does not relieve the prosecution of its duty to prove the guilt of the Appellant beyond reasonable doubt. The prosecution still has that onerous hurdle to cross, RASI V. STATE (2012) LPELR –
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7668 (CA).
Learned Counsel for the Appellant vehemently berated the identification of the 2ndAppellant by PW1, whom DW3 said, pointed at the 1st Appellant instead of the 2nd Appellant, thereby contending that there was a mistaken identity of the 2nd Appellant.
Identification evidence is the evidence tending to show that the person charged with that offence is the same person who was seen committing the offence. NDUKWE Vs. STATE (2009) 7 NWLR (PT. 1139) 43 SC., NWATURUOCHA VS. THE STATE (2010) LPELR 4646 (CA).
The question whether an accused person was properly identified as a party to the commission of a crime is a matter of fact to be determined on the basis of the evidence available before the trial Court and each case depends on its facts and peculiarities. Where the question of correctness of identification is raised or arises, the Court has the duty to thoroughly scrutinize the evidence and if at the end of the examination, the identification evidence is found to be poor, weak or unsatisfactory, the Court should exercise great caution in accepting the evidence. See THE PEOPLE OF LAGOS STATE V. UMARU (2014) LPELR – 22466 (SC), YAHAYA v.
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STATE (2016) LPELR – 40254 (CA).
Whenever the case against an accused person depends wholly or substantially on the correctness of the identification of the accused which the defence alleges to be mistaken, the Court must examine and receive with caution the evidence alleged before convicting the accused on the correctness of the identification. See EYISI v. STATE (2000) 15 NWLR (Pt. 691) 555 @ 557, Musdapher JSC (as he then was) in BASSEY AKPAN ARCHIBONG V. THE STATE (2006) 14 NWLR (Pt. 1000) 849, THE PEOPLE OF LAGOS STATE V. UMARU (SUPRA), YAHAYA V. STATE (SUPRA).
Indeed before ascribing value to identification evidence and basing a conviction upon it, the Court must meticulously consider certain factors in order to guard against cases of mistaken identity. These are:- Circumstances in which the eye witness saw the suspect – was it in difficult condition.
The length of time the witness saw the suspect or defendant, a glance or longer observation
The opportunity of close observation
Previous contact between the two parties.
The lighting condition see OCHIBA v. THE STATE (2011) LPELR-8245 (SC), ETISI v. STATE (2002) 15 NWLR (PT.
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697) 55., IKEMSON V. STATE (SUPRA), SUNDAY NDIDI V. STATE (2007) ALL FWLR (PT.381) 1617.
In the instant case, the contention of the defence is that when asked to identify the 2nd Appellant at the Dala Police Station, PW1 pointed at the 1st Appellant instead of the 2nd Appellant. On this, the evidence of DW4 both in chief and in cross-examination runs thus:-….I invited the 1st and 2nd accused persons and converge in a big room. I then asked the women to identify Haladu that stabbed Ashiru all the women except one said they did not know anything obout the matter. I asked the one that claims to know something about the matter to identify Haladu. She pointed ot Shuaibu instead of Holadu I asked if she was sure, she said yes this is Halodu…
..In the identification carried out the woman identify Shuoibu instead of Haladu…”
On the circumstances in which the PW1 saw the two Appellants, her testimony is that when the people entered the house, they (in the house) were composed that she saw them when they entered the house. She also saw the 2nd Appellant held Ashiru’s neck and stabbed him. She however said that they did
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not touch her because they might not have seen her. There was no evidence of the proximity from where and the position at which she was to the place where the 2nd Appellant was; neither was there any clear evidence on the length of time and how closely she observed the Appellant. There was no evidence as to how she was able to visually identify the 2nd Appellant whom she did not say she knew before the incident from amongst the many people who rushed into the house. She had no physical contact with the Appellants since they might not have seen her. It is also common ground that the incident happened after 9:00 PM and the lightening condition was poor since there no light but the attackers’ torch light who would not ordinarily beam the light on themselves. Equally, the 2nd Appellant did not in his evidence admit knowing PW1 before the incident. In fact he specifically denied knowing her.
How then was the witness able to single out the Appellants from the many that rushed into the house without proper lightening without having physical contact with the Appellants, without stating how in that difficult and stressful situation and from where and what position
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she was able to identify the Appellants? Similarly, the evidence of PW2 and PW3 who said they saw the 1st Appellant hitting at the door or window and attempting to stab their mother did not provide the details of how they were able to identify the 1st Appellant. All these unanswered questions reminds me of what the Supreme Court said in ALABI V. STATE (1993) 7 NWLR (Pt. 307) 511 when it held:-
“In a case where the witness had a fleeting glance of the accused, during which he could not even identify the dress the accused was wearing, it calls for caution before the trial Court could convict. It is relevant to establish how long the witness have the accused under observation and whether the distressed condition of the witness … would be an impediment to clear identification of the accused. The angle where the witness was standing during the commission of the crime which facilitated his perception of the scene should also be considered”. YAHAYA v. STATE (SUPRA), UKPABI V. STATE (2004) 11 NWLR (PT.884) 439.
In the case of 2nd Appellant, the Court cannot close its mind to the evidence of the 1st IPO when the matter was still fresh of the mistaken
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identity of the 2nd Appellant in the mini identification parade conducted, thus where as in this case, the witness did not acknowledge knowing the accused person before or prior to the date of the incident, but was confronted for a very short time in the course of the commission of the offence and in which she might not have had full opportunity of observing the features of the accused, the evidence must be viewed with great caution.
Even where the witness knows the accused prior to the date of the incident, there is still the need to recognize that same person whom the witness knows to be the same person as the one he saw committing the offence. Whenever the case against the accused person depends wholly or substantially on the correctness of the identification of the accused, and the defence alleges the identification was mistaken, the Court must closely examine the evidence on it, it must view it with caution so that any real weakness discovered about it must lead to giving the accused the benefit of doubt. Per Uwaifo JSC in UKPABI v. THE STATE (2006) 14 NWLR (Pt. 1000) 349. This is because mistakes are sometimes made even in the identification of
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close relatives and friends. NDIDI v. STATE (2007) 19 NWLR (Pt. 1052) 6539..
Lord Widgeny, C.J. in the case of R v. TURNBULL (1976) 3 ALL ERP 549, @ 55 I observed : –
“At what distance, in what light was the observation impeded in any way….. Had the witness ever seen the accused before? How often…. Recognition may be more reliable then identification of a stranger, but even when the witness is purporting to recognize someone whom he knows, mistakes in recognition of chose relatives and friends are sometimes made. All these matters go to the quantity of identification evidence. lf the quality is good and remains good at the chose of the accused’s case, the danger of mistaken identification is less and but the poorer the quality, the greater the danger……”
In EYISI & ORS v. THE STATE (2000) 15 NWLR (Pt. 691) 555 Onu JSC also gave the same warning to trial Courts, that:-
“What a trial Court must bear in mind in all cases of identification is that care must be taken in accepting, and rely on evidence of such identification to convict more so where the defendant contends (as in this case) that it is mistaken….”
Any real
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weakness discovered about the evidence of identification must lead to giving the accused person the benefit of doubt. Per MOHAMMED JSC in AFOLABI V. THE STATE (2013) LPELR 20700 (sc). See also UKPABI v. THE STATE (2004) 11 NWLR (Pt. 884) 439.
Similarly in Fabiyi v. STATE (2015) 18 NWLR (Pt. 1490) 80, @ 94-95 H-A Muhammad JSC held that:-
“Where there is a failure as in this appeal, by the prosecution to establish that the accused was indeed the person who committed the offence, such a failure disentitles the trial Court from convicting and an Appellate Court from affirming such erroneous conviction”.
It is to be further noted that the name of the 2nd Appellant was also not in the petition written by Mallam Iliyasu, Exhibit D, that precipitated the further investigation conducted by PW5 and PW6. (The petition is at pages 177-178 of the record and evidence of PW6 admitting that fact is at page 108 of the record).
All these further go to support the evidence of DW4 that when PW1 was unable to identify the 2nd Appellant, he told Mallam Iliyasu that there was no enough evidence to warrant arresting the Appellants and that was why he did
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not arrest them.
These lend credence to the evidence of DW3 and DW4 that the 1st Appellant was with DW3 at the Police station at the material time and that PW1 failed to identify the 2nd Appellant at the Dala Police Division when the incident was fresh. The identification of the Appellant at the State C.I.D. or in the dock about a month after the incident and after failing to do so when the matter was fresh, is of no moment.
It should be re-stated and re-emphasized that in a Criminal trial of this nature where the prosecution’s case depends entirely on the evidence of eye witness(es) whose evidence of identification is in issue or arises the prosecution has the burden duty to ensure that the identification evidence is detailed and meticulous on the identification of the accused as to leave no one in doubt that it was the accused and no one else that was seen committing the crime. This duty extends to ensuring that no missing links are left unconnected, no loose ends are left untied and no gap is left but is filled, to safeguard against possible but avoidable mistakes of sending a wrong person to the grave. In the instant appeal, the prosecution did
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not go this far.
Obviously, it ought to have done more on the identification evidence against the Appellants. Similarly, the Lower Court ought to have considered all the aforestated factors before convicting the Appellants solely on the evidence of eye witness(es) whose evidence, have failed to meet the required standard of credibility and unequivocality to safeguard against convicting the wrong persons.
By the time hallowed principle of our Law, where as in this appeal there is the slightest reasonable doubt, I do not say unreasonable or fanciful doubt, the doubt should as a matter of Law be resolved in favour of the accused, especially in a charge of this nature. AKPABIO & ORS V. THE STATE (1994) 7 NWLR (Pt. 359) 635, MUHAMMAD & ORS V. THE STATE (2013) LPELR – 22852, SOLOLA V. STATE (2005) 2 NWLR (Pt. 937) 460, KALU V. STATE (1988) 4 NWLR (Pt.. 90) 503. After all, as Rhodes Vivour JSC in OGUDO v. STATE (2011) 12 SC (Pt.1) 71 puts it, the adage that it is better for nine guilty persons to go free than one innocent person to be sent to his grave holds very true to this day. I give the benefit of my doubt in favour of the Appellants and
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discharge and acquit them of Count 2, culpable homicide punishable with death.
Resultantly, the doubt must be resolved in favour of the Appellants and in the words of Muhammad JSC in FABIYI v. STATE (SUPRA), this Court is disentitled from affirming the conviction of the two Appellants on Count 2. Consequently, count 2 not having been proved against the Appellants, they are entitled to a discharge and an acquittal on that count.
The next Counts are: Count 1, on conspiracy to commit criminal trespass and Count 5 for unlawful assembly to commit criminal trespass.
The authorities are unanimous that the offence of conspiracy is complete by the agreement of two or more persons to do or cause to be done an illegal act or legal act by illegal means. The uniqueness of the offence is that it is the agreement alone which constitutes the offence so long as the agreement is to do an illegal act or a legal act by illegal means, irrespective of whether the agreement is executed or implemented.Conspiracy is a distinct offence from the substantive offence. It is therefore not necessary to prove that the illegal act has been committed –OMOTOLA v. STATE
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(2009) 7 NWLR (Pt. 1139) 148, thus it is of no moment that the substantive principal offence was not proved.
This position of the Law was explicitedly re-stated in OSETOLA & ANOR V. STATE (2012) LPELR – 9848 (SC) per Ariwoola JSC as follows:-
“Failure to prove a substantive offence does not make conviction of conspiracy inappropriate, as it is a separate and distinct offence, independent of the actual offence conspired to commit see SEGUN BALOGUN V. A.G. OGUN STATE (2002) 2 SC (Pt. 11) 89 4 SCM 23 (2003) 2 SCNJ 196.
However, where the basis of failure to prove the substantive offence or discharge and acquittal of the accused is that he was not properly identified as the person who was seen at the scene of crime and there is no independent circumstantial evidence from which to infer conspiracy, it would be inappropriate to proceed with the charge of conspiracy against the accused person. By the same reasoning, proceeding with the charge of belonging to an unlawful assembly to commit criminal trespass arising from the same facts, becomes otiose.
In conclusion, the sole issue for determination is resolved in favour of the
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Appellants. Consequently, there is merit in the appeal and it succeeds. The appeal is allowed. The conviction and sentence of the Appellants by the Lower Court are hereby set aside and the Appellants are discharged and acquitted of all of the heads of Counts.
Other Citations: (2016)LCN/8708(CA)
