Taofeek Oyebola V. The State (2007)
LawGlobal-Hub Lead Judgment Report
JOHN AFOLABI FABIYI, J.C.A.
This is an appeal against the judgment delivered at the High Court of Justice, Abeokuta, Ogun State of Nigeria on 2nd August, 2002. In the judgment, the appellant was found guilty of the offences of conspiracy and armed robbery and was sentenced to death by hanging. The appellant felt irked with his conviction and sentence and has appealed to this court.
The appellant and the complainants, at the material time, resided at Olumogbe village in Asero, Abeokuta in Ogun State. Sequel to a string of armed robbery attacks between January and July 2000, the residents formed a community association and a vigilante group to check the incessant activities of the robbers. Reports of the robberies were made to the Police by the complainants. But none of them gave the identities of the robbers. They did not give any indication that they knew any of the robbers.
In August 2001, about 14 months after the last robbery incident, the community association wrote a petition to the police complaining about the menace of armed robbers in their area. The name of the appellant was, for the first time, mentioned in the petition as a member of the robbery gang that carried out the series of robberies from January to July 2000. The reason given by the complainants for being extremely tardy in mentioning the name of the appellant was that he threatened to deal with them if they dare mention his name. The same complainants had earlier on surreptitiously mentioned the appellant’s name to OPC, a sanguine extra judicial body and one Awikonko who announced the appellant’s name in Ogun State Radio. The appellant said he visited OPC and their boss advised him to settle with his community accordingly. He was not put out of circulation by OPC. As well, OPC did not hand him over to the Police.
The appellant was charged to court on four counts of conspiracy and armed robbery in September, 2001 sequel to the petition written by the community. At the trial, the prosecution called four witnesses. The appellant testified on his own behalf.
The learned trial judge was duly addressed by counsel on both sides. In the reserved judgment handed out on 2nd August, 2002, the trial Judge found the appellant guilty of the offences of conspiracy and armed robbery and convicted him. Thereafter, he was sentenced to death by hanging.
As stated earlier on, the appellant felt unhappy with the stance posed by the learned trial judge and has appealed to this court. The original Notice of Appeal was filed on 12th August, 2002. And by leave of this court, three additional grounds of appeal were filed on behalf of the appellant.
On 23rd January, 2007, when this appeal was heard, learned counsel on both sides adopted and relied on the briefs of argument filed on behalf of the parties. Two issues were distilled for determination by the appellant.
They read as follows:
“1. Whether it is proper to convict in the face of an uninvestigated alibi.
- Whether the prosecution evidence is reliable and proved the guilt of the appellant beyond reasonable doubt.”
Two issues couched on behalf of the respondent read as follows:
“1. Whether the appellant’s defence of alibi was properly considered by the learned trial judge.
- Whether the prosecution proved the case against the appellant beyond reasonable doubt.”
Arguing issue 1, learned counsel for the appellant observed that the offences for which the appellant was charged and convicted were alleged to have been committed on 19th January, 2000; 26th March, 2000 and 4th July, 2000 respectively. He maintained that the appellant, both in his statement to the police and evidence at the trial, stated that he was at home with his family and tenants on the stated dates. Learned counsel submitted that the appellant thereby raised a defence of alibi. He cited the case of Nwabueze v. State (1986) 4 NWLR CPt.56) 16 at 28.
Learned counsel further submitted that the evidential burden of establishing alibi is discharged when an accused sets it up at the time of investigation and it must be unequivocal. He cited Salami v. State (1988) 3 NWLR (Pt.85) 670. He felt that the appellant discharged the burden on him to establish his alibi in his statement to the Police and evidence at the trial court. Learned counsel opined that the appellant gave the particulars of the time, place and the persons in whose company he was at the time of the alleged offences.
Learned counsel observed that the prosecution, in its evidence, failed to adduce any evidence to disprove the plea of alibi. He maintained that the trial judge also, in his judgment, failed to address the issue of alibi as he simply said that ‘this issue does not arise at all’.
Learned counsel submitted further that the Prosecution had the duty to investigate the plea of alibi in the statement of the accused and to testify on it at the trial. He cited Wakala v. State (1991) 8 NWLR (Pt. 211) 552. He urged that issue 1 be resolved in favour of the appellant.
Arguing issue 1, learned counsel for the respondent conceded that once an accused person properly raises a defence of alibi, it is incumbent on the prosecution to investigate same. He maintained that for a plea of alibi to warrant being investigated, it must first be established by the accused. He cited the case of Isong Akpan & ors v. The State (2001) 2 NWLR (Pt. 728) 617 at 636. He maintained that the appellant said that he took P.W.1 to his house and nobody was found in the premises. He asserted that the appellant did not furnish the prosecution with the new addresses of his witnesses. He felt that the prosecution did what was expected of it in the investigation of appellant’s alibi.
Learned counsel further submitted that the court is not bound to believe the plea of alibi of the appellant where there is a stronger evidence of the appellant’s participation in the crime. He referred to the case of Ikemson v. The State (1989) 3 NWLR (Pt.110) 455. He urged that the issue should be resolved in favour of the respondent.
Let me observe at this point that for a plea of alibi to warrant being investigated, it must be established by the accused. The accused is expected to:
- give a detailed particularization of his whereabouts on the crucial days of the offence; he must specify the place or places where he was; the people in whose company he was and what, if any transpired at the said time and place or places;
- furnish some comprehensive information which must be capable of investigation by the Police should they wish to do so and a fair minded tribunal would have no other option than exercise its discretion of doubt in favour of the accused persons;
- timeously bring the defence to the attention of the police; preferably in his extra-judicial statement to afford the police ample time to carry out its investigation. The case of Isong Akpan & ors v. The State (supra) cited by the learned counsel for the respondent is of moment.
In short, alibi means elsewhere. See Archibong v. The State (2006) 14 NWLR (Pt. 1000) 349; Abeke Onafowokan v. The State (1987) 3 NWLR (Pt. 61) 538. It is the duty of the Prosecution to investigate a plea of alibi where practicable. It is the corresponding duty of the accused to furnish particulars of the plea of alibi. He must furnish his whereabouts and those present with him at the material time as set out above in this judgment. It is then left for the prosecution to disprove same. Failure to investigate will lead to acquittal. Refer to Yanor v. State (1965) NMLR 337; Queen v. Turner (1957) WRNLR 34; Bello v. Police (1956) SCNLR 113; Gachi v. State (1965) NMLR 333; Patrick Njovens v. State (1973) 1 NMLR 331; Odu & anr. v. The State (2001) 5 SCNJ 115 at 120; (2001) 10 NWLR (Pt.772) 668.
It goes without saying that the principle that the prosecution is duty bound to investigate the defence of alibi admits of no exception. Evidence of eye witnesses who testified as to the commission of the offence charged and the identity of the offender does not make the rule that alibi must be investigated inapplicable. See Wakala v. State (supra) at p. 573.
For the alibi plea put up by the appellant in respect of the incident of 4th July, 2000, it occurs to me that same was properly raised. The appellant gave the names of people; his wife inclusive, who were in the same house with him on that day. When he followed P.W.1 to his house, however, nobody was found. He confirmed this point under cross-examination. He did not give any reason for their absence. As well, he failed to furnish P.W.I with their new addresses. In short, the appellant made it impracticable for his plea of alibi to be conclusively investigated. No blame should be heaped at the door steps of the prosecution in the prevailing circumstance.
On 26-3-2000 at about 3.45 a.m. the appellant in Exh. ‘A’ said he was at home. He did not furnish the particulars of people who were with him. As for the incident of January, 2000, he did not put up any plea of alibi.
In short the appellant’s issuel must be resolved in favour of the respondent.
The next issue is the vital one. It is the issue upon which the appeal will stand or fall. It is whether or not the evidence adduced by the complainants is reliable and proved the guilt of the appellant beyond reasonable doubt.
Arguing the vital issue 2, learned counsel for the appellant maintained that for the prosecution to sustain a conviction of an accused person it must prove its case beyond reasonable doubt. He observed that the evidence of the prosecution is that the robbery incidents took place between January 2000 and July 2000. He asserted that while the complainants reported the incidents to the police, they failed to disclose the identity of the robbers. It took them 14 months before they mentioned the name of the appellant as one of the robbers via a petition they wrote to the Police. The complainants however said that they failed to mention the name of the appellant as he threatened to kill them if they did so. Learned counsel wondered that if they were indeed afraid, what then emboldened them to reveal the identity of the appellant 14 months after the robbery incidents.
Learned counsel submitted that the conduct of P.Ws. 2, 3 and 4 is doubtful and their evidence is an afterthought and totally unreliable. He cited the case of Namo Tsaku & ors v. The State (1986) 1 NWLR (Pt. 17) 516.
Learned counsel observed that the appellant, in his evidence alleged malice on the part of the prosecution witnesses. He felt that the evidence of the prosecution is totally unreliable and this should have created serious doubt in the mind of the trial judge.
Learned counsel further observed that the evidence of the prosecution is replete with contradiction and inconsistencies. He cited the cases of Ogoala v. State (1991) 2 NWLR (Pt. 175) 509; Oteki v. State (1986) 2 NWLR (Pt. 24) 648.
Learned counsel finally submitted that if the commission of a crime is directly in issue, it must be proved beyond reasonable doubt. And where there is any doubt, the accused must be given the benefit of same. He cited Onafowokan v. State (1987) 3 NWLR (Pt. 61) 381; Bakare v. State (1987) 1 NWLR (Pt. 52) 579. Learned counsel felt that the totality of the evidence of the prosecution raised serious doubt about the veracity and reliability of the prosecution witnesses. He opined that it can be safely contended that the prosecution failed to prove its case beyond reasonable doubt. He urged that the doubts created be resolved in favour of the appellant.
Arguing issue 2, learned counsel for the respondent conceded the point that it is the duty of the prosecution to prove its case against the accused beyond reasonable doubt as mandated by the provision of section 138 of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990. Learned counsel maintained that P.Ws. 2, 3 and 4 testified in respect of the appellant’s participation in the robberies. He cited the cases of Bashaya v. State (1998) 5 NWLR (Pt. 550) 351; Ikemson v. State (1989) 3 NWLR (Pt. 110) 455. He felt that the evidence of participation led by the prosecution neutralized accused’s plea of alibi. He cited the case of Balogun v. A.G. Ogun State (2002) 6 NWLR (Pt. 763) 512 at 536-537.
Learned counsel conceded the point that evidence of identification of an accused person must be revealed at the earliest opportunity. He felt that the reason given by the prosecution witnesses that the appellant threatened to kill them if they revealed his identity was a good reason for the delay in reporting to the Police.
Learned counsel submitted that there was no inconsistency in the evidence of prosecution witnesses. He opined that if there was any inconsistency, it was not substantial. He maintained that the prosecution proved its case against the appellant beyond reasonable doubt in accordance with the provision of section 138 of the Evidence Act.
It is not in doubt, as parties are ad idem, that to sustain a case of armed robbery beyond reasonable doubt, the prosecution must prove:
- That there was a robbery.
- That the robbery was an armed robbery.
- That the accused person took part in the robbery.
See Samuel Bozin v. The State (1985) 2 NWLR (Pt. 8) 465.
There is no contention in respect of the fact that series of robberies took place at Asero area of Abeokuta within January 2000 and July 2000. P.Ws 2, 3 & 4 gave evidence of robberies which took place in their abodes. They also testified that the robbers carried guns and knives and as such, the robberies were armed one. The point which generated heated debate is whether or not the appellant took part in the series of robberies perpetrated.
Let me first of all deal with the surmised contradiction which the appellant tried to pin-point in the evidence of the prosecution witnesses. Appellant’s counsel maintained that P.W.1 and P.W.3 admitted that the appellant was a member of their Asero community while P.W.2, under cross-examination stated the contrary. It must be stressed that contradiction in the evidence of prosecution that will be fatal to its case must be substantial. Minor contradiction which did not affect the substance of the case may not be fatal. Contradiction must relate to the substance as trivial contradiction should not vitiate or undo a trial. See Queen v. Iyanda (1960) SCNLR 595; Ankwa v. State (1969) 1 All NLR 133; Omisade v. Oueen (1964) 1 All NLR 233; Sele v. The State (1993) 1 SCNJ is at 22-23; (1993) 1 NWLR (Pt. 269) 276.
I am of the considered opinion that even if there was contradiction as to whether the appellant was a member of Asero community, such appears inconsequential and trivial. It sounds innocuous as it does not go to the substance of the case. This is so since it is clear that the appellant, at the material time resided at Asero, Abeokuta. I see no big deal in this point which the appellant’s counsel attempted to capitalize upon. Such was to no avail; in my considered view.
I now move to the last point which is most crucial for the determination of this appeal. The complainants revealed the identity of the appellant as being one of the robbers who raided them 14 months after the robbery incidents. The name of the appellant should have been mentioned to the police if he was a known participes criminis at the earliest opportunity so as to facilitate a thorough and unadulterated investigation. On a similar point in the case of Namo Tsaku & ors v. The State (supra) at p. 530, this court, per Akanbi, JCA (as he then was) referred to C.O.P. v. Tijani Alao & anr (1959) WRNLR 39 at 40 where Quashie-Idun Ag. J (as he then was) gave the following counsel of prudence to the effect that:
“…When an eye-witness omits to mention at the earliest opportunity the names of the persons he said he saw committing an offence a court must be careful in accepting his evidence given later and implicating other persons, unless a satisfactory explanation is given as to why the names were not mentioned before.”
In Zekeri Abdu v. The State (1985) 1 NWLR 55, the Supreme Court agreed with the above statement of the law. At page 62 the apex court was of the opinion that where an eye-witness omits to mention at the earliest opportunity the name or names of the person seen committing an offence, a court must be careful in accepting his evidence, unless a satisfactory explanation is given. This is because such delay makes the evidence of identity suspicious and reduces the truth content of the evidence below acceptable and probative level. This is an opinion of the apex court which, as usual, must be seriously accorded due respect and followed to the letter.
In Zekeri Abdu v. The State (supra) the apex court found that the evidence identifying the appellant therein as a robber which was belatedly made was too suspicious to be acceptable. The Supreme Court applied the warning of Lord Widgary C.J. in R. v. Tunbull (1976) 3 WLR 445 at p.447.
I must state it again that it took 14 months before all the complainants to wit: P.Ws. 2, 3 & 4 belatedly mentioned the name of the appellant as one of the robbers via a petition they wrote to the police which petition is attached to Exhibit B. Instead of giving the point an adequate consideration, the learned trial judge, with due diffidence to him, erroneously said – ‘I cannot also see any statute of limitation against commission of crime’. The point has nothing to do with statute of limitation against commission of crime. It relates to whether lingering doubt arose from the tardy and belated manner in which the complainants mentioned the name of the appellant to the police 14 months after the string of robberies carried out in their area. The sole reason given by the complainants for waiting for 14 months before they disclosed the identity of the appellant was that he threatened to kill them if they disclosed his identity to anyone. In short, they were afraid. They however did not say what emboldened them to reveal the identity of the ‘robber’ 14 months after the robbery incidents. The delay in mentioning the appellant’s name appears inordinate and unreasonable. Nothing prevented the complainants from reporting to the Police at the earliest opportunity and thereafter seek Police protection. The reason given by the complainants for their inaction to report for a long time to facilitate proper and timeous investigation is untenable. The conduct of the prosecution witnesses who were complainants appears very doubtful. It has the semblance of an afterthought which continues to produce a lingering doubt. The evidence appears to have been manufactured, invented or fabricated.
Apart from the above, the appellant both in his statement to the Police – Exhibit ‘A’ and evidence at the trial, alleged malice on the part of the prosecution witnesses. The appellant maintained that P.W.2 was having an affair with his wife and that was why he drove her out of his house. He also alleged that a dog belonging to one ‘Baale’ killed his fowl and he reported this to the Police. The appellant made out a case of malice against the complainants but the learned trial judge did not allude to it; even if remotely.
I form the opinion that the above is enough to ground a lingering doubt in the mind of the learned trial judge. As stated earlier on in this judgment, the complainants had surreptitiously reported the appellant to OPC, a sanguine extra judicial body which did not see any good reason to extinguish the appellant. The tardy mentioning of the name of the appellant to the Police appears suspicious. It seems to me that they want to see the appellant permanently out of circulation. The court must be wary and circumspect with respect to the conduct of the complainants. The lingering doubt created continues to reverberate. The learned trial judge ought to have been on guard. In this regard, I am afraid, I cannot pitch my tent with him.
Let me say it here that in a criminal trial, where it is suggested that a piece of evidence casts some doubt on the prosecution’s case, it is necessary to show, unless such is manifest or evident from the records, what aspect of the case becomes doubtful by reason of the evidence. See Archibong v. State (supra) at p. 371. There is no gainsaying the point that the failure of the complaints herein to mention the name of the appellant at the earliest opportunity makes their evidence suspicious and untenable. Same created a lingering doubt which must be resolved in favour of the appellant. See Onafowokan v. The State (supra).
I have no doubt in my mind that this case has not been proved beyond reasonable doubt as provided by section 138 (1) of the Evidence Act, Cap 112, LFN, 1990. See also Woolmington v. DPP (1935) AC 462 at 481; Onubogu v. State (1994) 9 SC 1; Nasiru v. State (1999) 2 NWLR (Pt. 589) 87 at 98; Miller v. Minister of pensions (1947) 3 All ER 373. Although proof beyond reasonable doubt is not proof to the hilt, where all essential ingredients have not been established by the prosecution as in this appeal same is not proved beyond reasonable doubt. See Alabi v. State (1993) 7 NWLR (Pt. 307) 511 at 523. I hereby draw the curtain.
I come to the conclusion that the appeal is meritorious. And it is hereby allowed. The conviction for the offences charged as well as the sentence of death pronounced by the trial judge on the appellant on 2nd August, 2002 are hereby set aside. The appellant is hereby discharged and acquitted.
Other Citations: (2007)LCN/2278(CA)
