THE COURT OF APPEAL OF NIGERIA
ON WEDNESDAY, 28TH DAY OF JANURARY, 2015
AYO ADEGBITE V. THE STATE
Abiola Olagunju, Esq. with Suraj Ali Musa, Esq. For Appellant
Leo Ologun, Deputy Administrator General and Public Trustee Ministry of Justice Ondo State For Respondent
MOJEED ADEKUNLE OWOADE, J.C.A.: (Delivering the Leading Judgment):
This is an appeal from the decision of D. I. Kolawole J. of the High Court of Ondo State sitting at Akure delivered on the 27th day of February 2013.
The Appellant was initially arraigned in court before his Lordship, Hon. Justice Odusola sometimes in February, 2011. The trial commenced and was closed, while the court adjourned for address. However, the address was stalled and the case was re-assigned to another judge to start de novo.
The Appellant was consequently arraigned on the 10th day of October, 2012 before Honourable Justice D. I. Kolawole upon a one count charge of murder contrary to Section 319 of the Criminal Code Cap. Vol. 11 Laws of Ondo State of Nigeria, 1978.
The case of the prosecution is that the Appellant was the one who poured acid substance on one Afolabi Theophilus (deceased) at about 7p.m., along Ilu-Abo Ajegunle Road on the 7th November, 2009 which consequently led to his death on the 6th December 2009 at the University Teaching Hospital, Ibadan. That before the deceased's death, he made statement to the police at the general hospital that it was the Appellant known as Ayo Ngbada that poured acid on him. The deceased equally told his wife (PW1) and his friend who visited him in the hospital at Akure and Ibadan (PW2) that it was the Appellant that poured acid on him.
The Appellant, on the other hand relied on the defence of alibi that he was at the wedding ceremony of his sister-in-law and was running errand at the time of the incident. The prosecution called five (5) witnesses and tendered Exhibits, the Appellant called five (5) witnesses and in addition gave evidence as DW6.
The learned trial judge delivered judgment on 27th day of February 2013 and found the Appellant guilty of murder and thereby sentenced him to death.
Dissatisfied with the conviction and sentence, the Appellant at first, on 7/5/2013 filed a Notice of Appeal containing a single ground of appeal. Later and by an order of this Honourable Court the Appellant filed an Amended Notice of Appeal (containing four (4) grounds of appeal) on 24/3/2014.
Appellant's brief of argument dated 28/3/2014 was filed on 31/3/2014. Respondent's brief of argument dated 11/6/2014 and filed on the same day was deemed filed on 27/10/2014. Learned Counsel for the Appellant nominated three (3) issues for determination to wit:
1. Whether the prosecution proved the guilt of the Appellant beyond reasonable doubt in view of the wrongly admitted and inadmissible evidence relied upon by the learned trial court to found the Appellant's conviction and sentence.
2. Whether the identification evidence in this case properly linked the Appellant to the murder of Theophilus Afolabi.
3. Whether the Appellant's right to fair hearing was not breached due to non-consideration of the defence of alibi raised by him.
Learned Counsel for the Respondent also formulated three (3) issues for determination as follows:-
1. Whether or not the trial court relied on wrongly admitted or inadmissible evidence to convict the Appellant.
2. Whether the identification evidence in this case properly linked the Appellant to the murder of the deceased, Theophilus Afolabi.
3. Whether the learned trial judge having regard to the evidence adduced at the trial properly considered and evaluated the defence of alibi raised by the Appellant.
Learned Counsel for the Appellant started his submission, first, from the angle that the information which led to the conviction of the Appellant was not dated as required by the provision of Section 337 of the Criminal Procedure Law cap. 31 Vol. 2, Laws of Ondo State of Nigeria 1978. He argued that in a serious charge like murder, the prosecution must comply with all statutory provisions enabling it to institute criminal proceedings against an accused person. Such statutory, requirements constitute a condition precedent to the trial of an accused person.
He referred to the case of Madukolu v. Nkemdilim (1963) 1 All NLR 587 at 593 and submitted that the Appellant's whole trial is incompetent, condition precedent having not been fulfilled. Counsel submitted, referring to the decision of the Supreme Court in Agbule v. VWR & P. Co. Ltd (2013) All FWLR (Pt. 688) 829 at 862 - 863 that an invalid and defective information cannot found a valid trial.
Still on issue 1 and in case the above submissions are discountenanced, Learned Counsel submitted that it is incumbent upon the prosecution to prove the charge against an accused person beyond reasonable doubt. He referred to the provision of Section 135 (1) of the Evidence Act 2011 and the cases of Nweke v. The State (2001) 5 NSCQR 360 at 372; Onafowokan v. The State (1987) 7 SC (Reprint) 198 at 202 but conceded that the prosecution can discharge the above burden by direct evidence or circumstantial evidence or confessional statement.
He referred to the cases of Nigerian Navy v. Lambert (2007) All FWLR (Pt. 396) 574 at 585; Adio & Anor v. The State (1986) 4 SC (Reprint) 145 at 160.
Counsel reminded us that in a charge of murder, the burden is on the prosecution to prove the following ingredients:
i. That the deceased died.
ii. That the death of the deceased has resulted from the act of the accused; and
iii. That the act of the accused was intentional with knowledge that death or grievous bodily harm was its probable consequence.
He referred to the cases of Akpan v. The State (1994) 25A LRCN 137 at 146; Adekunle v. The State (2006) 43 WRN 1 at 24.
He submitted that the learned trial judge in the instant case relied on innumerable instances of hearsay which occasioned a miscarriage of justice. That, at page 13 of the record, PW1 - Caroline Afolabi Theophilus (the deceased's wife) said.
"I remember 8/11/2009 at about 6.30a.m., my daughter called me to inform me that one Ayo Ngbada living at our village Ajegunle and a grand-children (sic) of Madam Somo had poured acid on my husband and her father".
That, PW2, Chief Tayo Falana, said at pages 16 - 17 of the record:
"The deceased told me that it was the accused that bathed him with acid".
Also, that PW3, Inspector Sylvanus Arobo said:
"I went to see the Victim at the Akure specialist Hospital. I met with the victim and he narrated to me how he came by his injuries"
Counsel submitted that the remaining two witnesses for the prosecution did not also see the deceased being bathed with acid. They all rehearsed what the deceased purportedly told them. The law is trite, said Counsel, that oral evidence must in all cases be direct.
He referred to Section 126 of the Evidence Act 2011, and the cases of Ojo v. Gharoro (2006) All FWLR (Pt. 316) 197 at 218; Ijioffor v. The State (2001) 6 NSCQR 209 at 221 and submitted that to the extent that the prosecution witnesseS re-told, re-phrased, or reported the words of the deceased with view to establishing the truth of their respective assertions before the learned trial judge their evidence is inadmissible hearsay.
He submitted that a specie or variant of the hearsay evidence referred to above is the purported dying declaration relied upon by the learned trial court to convict the Appellant. He referred to Exhibit E (purported dying declaration of Afolabi Theophilus). That it is on record that it was uncertain if the deceased was literate or could even sign. DW6, Ayo Adegbite, testified that PW1 (deceased's wife) was the one who signed Exhibit 'E'. Again, that the said exhibit fell far short of the requirements of the law regarding dying declaration. And, that when the learned defence Counsel invited the trial court to resolve the dispute surrounding the signature in Exhibit E, the court refused the invitation as enjoined in Section 101 of the Evidence Act.
Counsel submitted further that realizing the inherent weakness in Exhibit E, the learned trial court discountenanced it. But, later held in relation to the evidence of PW1 that:
"The question to ask is whether the declaration by the deceased to PW1 that it was the accused that poured acid on him qualified as dying declaration. There is no doubt that the statement related to the circumstances of the transaction which culminated in the death of Afolabi Theophilus --------------".
Appellant's Counsel submitted that the above said PW1's evidence relied upon by the learned trial judge is inadmissible hearsay. That the court expressed its doubt in this regard at page 116 when the learned trial judge said:
"My view would not change even if I err in considering the statement made by the deceased to PW1 on 5th December, 2009 as dying declaration".
He submitted further that the deceased's purported dying declaration either to PW1 or PW2 or any of the prosecution witnesses or even as contained in Exhibit 'E' conveyed the motive behind his attack. The deceased said his attacker told him that he (the deceased) was reaping the effect of their past acrimony. None of the versions of the dying declaration is inadmissible. He referred to the case of Vorgho v. The State (1972) 5 SC (Reprint) 1 at 3 where the Supreme Court per Elias CJN, frowned on the admissibility of a statement as dying declaration not only as proof of the facts stated therein but also as expression of opinion as to the Appellant's motive for killing him, the later, that is evidence of motive not been relevant as part of dying declaration.
Counsel submitted that an Appellate court has a duty to exclude inadmissible evidence wrongly admitted and to deal with the case on the basis of the remaining legally admitted evidence. The decision, said Counsel, would have been otherwise if the learned trial judge had not relied on hearsay evidence.
He referred to the case of Akpan v. The State (1994) 25 A LRCN 137 at 148.
Learned Counsel for the Respondent submitted that the submission of the Appellant that the Information on which the Appellant was tried and convicted was not dated neither arose from the grounds of appeal nor the issues for determination in the appeal. In any event, said Counsel, it is the position of the law that objection to a charge for any formal defect on the face thereof shall be taken at plea. This he said, is as provided in Section 167 of the Criminal Procedure Law of Ondo State, 1978. The Section provides that:
"Any objection to a charge for any formal defect on the face thereof shall be taken immediately after the charge has been read over to the accused and not later".
Respondent's Counsel submitted that there is nothing on record to show that the Appellant or his Counsel raised any objection to the information on the ground that it was not dated or on any ground at all. More so when the Appellant could not claim that he was misled by the omission to date the Information or that the omission to date occasioned miscarriage of justice. He referred to Section 166 of the CPL (supra).
Furthermore, said Counsel, the information was signed and properly filed. The date on the information would suffice. He referred to the cases of Egolum v. Obasanjo (1999) 7 NWLR (Pt. 611) 355 at 387; Obakoolor v. State (1991) 1 NWLR (Pt. 165) at 113; Yusuf v. Adegoke & Anor (2007) 4 SC (Pt. 1) 126.
Learned Counsel for the Respondent noted that it is also the contention of the Appellant in paragraphs 23.0 - 32.0 of his brief of argument that the court relied on hearsay evidence in convicting the Appellant. That the Appellant quoted scantily excerpts from the oral evidence of PW1, PW2, PW3 and also referred to Exhibit E as hearsay evidence and what the court relied on to convict the Appellant. He submitted that contrary to the above, the learned trial judge considered the whole evidence and did not rely on hearsay evidence before arriving at the conviction of the Appellant. For the avoidance of doubt, said Counsel, it is expedient to quote from the judgment of the trial court to ascertain the veracity of the Appellant's claim. At page 108 - 110 of the record, the learned trial judge while evaluating the evidence of PW1 among others, held thus:
"PW1 gave evidence that each day the deceased will hold her hand and told her that it was Ayo Ngbada, the accused that attacked him with acid. PW1 introduced another dimension to this when she gave evidence that on 5th December, 2009 when the injury had weakened her husband and he was on the point of death he still insisted that it was the accused that attacked him with acid. He died the next day.
The question to ask is whether the declaration of the deceased to PW1 on the 5th December 2009 can pass as a dying declaration. There is no doubt that the statement related to the circumstance of the transaction which culminated in the death of Afolabi Theophilus. This trial is one of murder and it relates to the death of Afolabi Theophilus. The pertinent question is whether Afolabi Theophilus believed himself to be in danger of approaching death that 5th December, 2009 when he made the Declaration that it was the accused that poured acid on him. It would not be unreasonable to hold that the deceased believed himself to be in danger of approaching death that 5th December, 2009 when he again told PW1 that it was the accused that attached him with acid, although like all humans, he may still entertain hope of a miraculous escape. It is therefore my view that the declaration made by the deceased to PW1 on 5th December, 2009 that it was the accused that attacked him with acid qualifies as dying declaration".
Learned Counsel for the Respondents reproduced the provisions of Sections 39 and 40 of the Evidence Act 2011 and also referred to the cases of Olabode v. The State (2009) 11 NWLR (Pt. 1152) 254; Okoro v. State (2007) 2 NWLR (Pt. 1019) 530 at 544 for the proposition that dying declaration is an exemption to hearsay evidence.
On the evidence of PW2 contained at page 108 of the record, Respondent's Counsel submitted that the trial court only made use of the above evidence of PW2 to the extent that the statement was indeed made to him by the deceased. He argued that it is the position of the law that a statement would be admissible if the purpose or intention is to establish the fact that the statement was made by the person concerned.
He referred to the case of Suleiman Olawale Arogundare v. The State, Electronic Citation: LER (2009) SC.206/2007.
Learned Counsel for the Respondent submitted further that contrary to the submission of the Appellant, it is clear from the record that the learned trial judge did not rely on Exhibit 'E' or the evidence of PW3 to convict the Appellant.
Finally on issue 1, Respondent's Counsel submitted that the prosecution fully discharged the burden of proof beyond reasonable doubt. That, all available evidence including that of PW1, PW2 PW3 and Exhibit E were properly evaluated before the court arrived at its conclusion.
He referred to the cases of Amuneke v. State (1992) NWLR (Pt. 217) 347; Nwaokorobia v. Uzoho (2007) All FWLR (Pt. 376) 729 at 744; Ehot v. State (1993) 4 NWLR (Pt. 290) 644 and concluded that evaluation of evidence adduced in a trial by a witness and the ascription of probative value to such evidence are matters within the exclusive competence of the trial judge who has the advantage of seeing the witnesses, of watching their demeanor and of hearing them gave evidence.
In the instant case, I do agree with the Learned Counsel for the Respondent that the prosecution indeed proved the guilt of the Appellant beyond reasonable doubt.
In the case of Adekunle v. The State (2006) 43 WRN 1 at 24, the Supreme Court reiterated the position of the law that:
"from a long line of the decisions of this court, it is settled beyond controversy that to secure a conviction on a charge of murder the prosecution must prove (a) that the deceased had died (b) that the death of the deceased was caused by the accused, and (c) that the act or omission of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence".
See also Akpan v. The State (1994) 25A LRCN 137 at 146.
In the instance case, there is no controversy on (a) and (c) above. In other words there is no issue as to the fact of death of the deceased or that the assailant of the deceased intended death or grievous bodily harm to which death was a probable consequence. The only question here is whether the death of the deceased could be attributed to the Appellant. Whether there is sufficient evidence linking the death of the deceased to the action of the Appellant.
In my opinion, the learned trial judge was right to have found that the deceased through the evidence of PW1 to have found that the deceased made an admissible dying declaration and also to have relied on the same to link the death of the deceased with the action of the Appellant.
In the case of Osiekwe v. The State (1999) 9 NWLR (Pt. 617) 43 at 68 it was held that in order to make dying declarations admissible in evidence the following conditions must be satisfied:
"i. the declaration itself which may be written or verbal must be of relevant facts.
ii. the declarant must have died before evidence of the declaration is required to be given.
iii. the declaration must relate to the cause of death of the declarant or as to any of the circumstances of the transaction which resulted in death and the cause of declarant's death must be in question in the trial.
iv. the declaration is relevant only in trials for murder or for manslaughter of the declarant;
v. the declarant must have believed himself to be in danger of approaching death (and the trial court must make a specific finding that the deceased did in fact believe in the danger of approaching death when making the declaration)".
I do agree with the Learned Counsel for the Respondent that all the above conditions were satisfied in this case. Furthermore, the learned trial judge in his evaluation of evidence also made specific finding that the deceased did in fact believed himself to be in danger of approaching death that 5th December 2009 when he again told PW1 that it was the accused that attacked him with acid, although to use the exact words of the trial court "like all humans, he may still entertain hope of a miraculous escape-----". Clearly therefore, the learned trial judge was right when he held at pages 116 - 117 of the record that:
"After a careful appraisal of the evidence, I have no doubt in my mind that it was the accused that attacked the deceased, Afolabi Theophilus along the Ilu-Abo/Ajegunle Road on the 7th November, 2009 at about 7.30p.m., the attack caused the injuries which the deceased did not recover from. He succumbed to the injuries and died on 6th December, 2009. My view would still not change even if I err in considering the statement made by the deceased to PW1 on 5th December, 2009 as dying declaration--------. There is no evidence that the substance was accidentally poured on the deceased. A person is criminally liable for the consequence of his action and/or his inaction.
In this case the accused intentionally attacked the deceased with substance that severely burnt him. The injury the deceased suffered was very severe. The effect of this conclusion is that the prosecution has proved all the ingredients of the charge of murder ------".
Issue 1 is resolved against the Appellant.
On issue 2, Learned Counsel for the Appellant identified thirteen (13) factual circumstances to demonstrate that the identification evidence in the instant case did not properly link the Appellant to the murder of the deceased.
1. The learned trial court found that the acid bath took place at 7.30p.m. on 7/11/2009 along Ilu-Abo/Ajegunle Road.
2. PW1, Caroline Afolabi Theophilus, said her daughter informed her that it was one Ayo Adagba that attacked the deceased.
3. The Appellant emphatically maintained that there were many Ayos in that area but his own name is Ayokunle or Ayo Adegbite.
4. PW1 later said that her late husband consistently told her that Ayo Ngbada was his attacker and throughout the proceedings it was never established in evidence that Ayo Ndagba was the same person as Ayo Adegbite.
5. PW3 said "I did not take the accused to see the victim so that he can confirm that it was the accused that attacked him because I could not guarantee his safety at the scene because tension was high".
6. There was at least a period of 29 days between the time of the attacked 7/11/09 and the time Theophilus Afolabi died on 6/12/09.
7. DW2, Mrs. Sarah Omotayo said she visited the deceased at the hospital and that the deceased told her that he did not know his assailant and that the Appellant was not his assailant.
8. PW2, Chief Tayo Falana was also a prime suspect in respect of the matter as he had earlier been arrested but released after his statement had been recorded by the police.
9. The Appellant - DW6 was first released at Oba-Ile police station as the police were not sure of the identity of Theophilus Afolabi's attacker, which fact is reflected in the Appellant's evidence when he said "My statement was taken at Oba-Ile Police Station, I was released by the IPO that night but I was told to come back the next day. This is because the IPO said he was not sure of the Ayo he was looking for".
10. The deceased never pointedly mentioned the Appellant as his attacker in Exhibit 'E'.
11. The deceased did not also mention the name of the Appellant in Exhibit 'K' sunshine Daily Watch Newspaper - containing the interview on the incident.
12. If the Appellant was well known in that area according to the findings of the learned trial court, then he should have been graphically described and linked with the incident of 7/11/09 and
13. The case of Ndidi v. The State (2007) 5 SCNJ 274 at 287 relied upon by the learned trial court was totally in favour of the Appellant based on the facts and circumstances of the case.
Learned Counsel submitted that based on the above factual instances it showed clearly that the identification evidence in this case was abysmally poor and it failed to link the Appellant to the death of Afolabi Theophilus. He argued that it is a settled principle of law that where an identification evidence is poor, as in the instance case, the court should return a verdict of not guilty unless there is another evidence which goes to show the correctness of the identification.
He referred to the case of Abdullahi v. The State (2005) All FWLR (Pt. 263) 698 at 715; Ukpabi v. The State (2004) 119 LRCN 4316 at 4323 and submitted that there is no such other evidence in this case.
Counsel submitted further that if the alleged attack of 7/11/09 had taken place in broad day light and the Appellant had been properly described and linked with the incident, there would not have been any fuss about identification. The findings of the learned trial court at page 107 lines 1 - 5 of the record are not borne out of the facts of the case. The circumstances under which the deceased was attacked were dusty (at 7.30p.m.) the length of time was very fleeting and short, there was no light at all, there was no opportunity of close observation as the encounter took place on the spur, and the facts and circumstances of the case did not reflect any previous contacts between the deceased and the Appellant for if there had been one, said Counsel, the former would have vividly described the latter at the earliest opportunities.
He urged us to hold that the Appellant was not identified as the attacker of the deceased.
Learned Counsel for the Respondent on the other hand submitted on issue 2 that there are abundant evidence to the effect that both the Appellant and the deceased (Afolabi Theophilus) know each other very well. And, that abundant evidence also abound that the Appellant is the same person known as Ayo Ngbada.
He referred to the evidence of PW1 at page 14 of the record which in part says:
"--------- I did not know the accused as Ayo Adegite we all know him in our village, Ajegunle as Ayo Ndagba----------".
Also, said Counsel, the Appellant as DW6 at the trial court gave evidence and admitted that the deceased is related to his mother. In his words, he stated that:
"Late Afolabi Theophilus was related to my mother".
Counsel further submitted that it is also in evidence that the Appellant on the day of the attack spoke to the deceased and told him that he has received his own judgment. In the words of PW1 "On the day the accused attacked my husband, my husband said the accused told him he has received his own judgment".
This piece of evidence, said Counsel, was corroborated by the statement of DW2 at the trial in her evidence when she said,
"I got to know about this matter because on 9th November 2009, the television aired the news of the attack on the deceased, Afolabi Theophilus spoke and he said he was going on the road between Ilu-Abo and Ajegunle someone came from the bush and poured something on him and Afolabi asked the person what he did to warrant this and the person said he was only reaping the effect of what he did".
By the above, said Counsel, the deceased and the Appellant knew each other very well as to recognize the Appellant through his voice due largely to the familiarity between them.
He referred to the case of Sunday Ndidi v. The State (2007) and submitted that given all the evidence, the prosecution proved the identity of the Appellant as the assailant of the deceased.
In determining issue 2, I am convinced that the learned trial judge in the instant case was on sound footing in accepting the evidence of PW1 that they all know the Appellant as Ayo Ngbada and not Ayo Adegbite in their village at Ajegunle.
The above singular fact fixes the Appellant as the same Ayo Ngbada that was mentioned in the dying declaration of the deceased as found in the evidence of PW1.
Furthermore, I do not agree with the Learned Counsel for the Appellant that there is an issue of identification as such in this case. The admissible statement (dying declaration) of the deceased through PW1 to the effect that the Appellant was the person that poured acid on him is indeed evidence of recognition. This is because one undisputable trend that runs through the gamut of the instant case is that the deceased and the Appellant knew themselves very well, they are not just co-villagers and/or merely neighbours or acquaintances but indeed relatives. In those circumstance, the question or the possibility of the deceased mistaken about the identity of the Appellant as his assailant could be safely ruled out.
Now, as a matter of law it is not in every case that identification parade is necessary. Where as in the instant case, the evidence by the prosecution demonstrates ample opportunity of identifying the accused or shows knowledge of the accused, identification parade is not necessary. Archibong v. State (2004) 1 NWLR (Pt. 855) 488; Alada v. State (1998) 8 NWLR (Pt. 563) 618; Igbi v. State (2000) 2 SC 67; Eyisi v. The State (2001) 8 WRN 1 at 9.
In the instant case the admissible dying declaration of the deceased on the identity of the Appellant was indeed evidence of recognition.
Issue 2 is resolved against the Appellant.
On issue 3, Learned Counsel for the Appellant referred to the case of Oferlete v. The State (2000) 3 NSCQR 243 at 254 and submitted that it is settled law that any defence to which an accused person is on the evidence entitled to should be considered, no matter how stupid, fanciful or unreasonable the defence may appear to be.
He said the Appellant timeously raised the defence of alibi in his statement. That DW3 reinforced this fact and was further confirmed by DW1 and DW2. But, that PW3, Slyvannus Arobo did not investigate the alibi as required by the law. That the Appellant detailed his moment-by-moment movements on the day of the incident. PW4, Asp Anumah Michael, too, according to Counsel did not help matters. That at page 24 of the record, the latter said,
"I investigated the alibi that was why I went to Idanre and I also talked to those people the accused mentioned. Although the people claimed that the accused came to Idanre but the time they came there was not very clear. There was a time difference between the time he was alleged to have done the act charged and the time they said the accused took them to Idanre".
Counsel submitted that it was the responsibility of PW4 to clarify what "was not very clear" for that was part and parcel of his investigative duties regarding the defence raised by the Appellant. He referred to the case of Aliyu v. The State (2007) All FWLR (Pt. 388) 1128 at 1147 and submitted that the defence of alibi only needs to be raised before the trial court.
Counsel opined that the learned trial judge did not properly evaluate and consider the evidence adduced in respect of the defence of alibi but rather at pages 111 - 115 of the record discredited the evidence of the Appellant (DW6) and Funke Adegbite (DW3) by relying on some minor discrepancies in the evidence of the defence.
Furthermore, said Counsel, at the earliest opportunity DW3 and DW4 attempted to make statements to the police but the police refused to take their statements. And, that the trial court suo motu admitted Exhibit Y which said Exhibit found its way to the record as IDI.
He submitted referring to the case of Mohammed v. The State (2011) All FWLR (Pt. 580) 1276 at 1280 and Olaiya v. The State (2010) All FWIR (Pt. 514) 1 at 10 that it is only positive identification that destroys the defence of alibi.
He submitted that nobody saw the Appellant committing the offence. There was no admissible evidence before the trial court fixing the Appellant at the scene of the incident. He argued that the court should not speculate on evidence before it but decide on the evidence presented before it.
He referred to the cases of Igabele v. The State (2006) 28 WRN 1 at 25 and Nwosu v. The State (1986) 7 SC 1 at 14 - 15.
He submitted that the evidence in this case is circumstantial and that before circumstantial evidence can form the basis for conviction the circumstances must clearly and forcibly suggest that the accused was the person who committed the offence and that no one else could have been the offender.
On this, Counsel referred to the cases of Adepetu v. The State (1998) 61 LRCN 4519 at 4543; Peter v. The State (1997) 54 LRCN 2781 at 2804; Mbenu v. The State (1988) 7 SC (Reprint) (Pt. 111) 71 at 84; Katu v. The State (1988) 10 - 11 SC (Reprint) 19 at 24.
Learned Counsel for the Respondent referred to passages in the judgment of the learned trial judge at pages 111 - 116 of the records to show that the trial court indeed evaluated and considered the defence of alibi raised by the Appellant.
He submitted that the nature of the evidence of the Appellant itself rendered the defence unreliable as the court held that there is doubt and incredibility as to the defence of alibi raised by him. That, the learned trial judge while appraising the evidence of the Appellant and his credibility with that of DW3 asked the pertinent question thus:
"Are the evidence of the accused and DW3 credible? (page 113 of the record)".
And he came to a just conclusion when he said:
"In this case the accused contradicted himself in many instances ----. I do not think that he deserves any credibility ---- I do not find DW3 credible either ----. The various contradictory evidence led by the defence as to the actual time the accused left the reception venue also cast doubt on the credibility of the alibi raised".
Respondent's Counsel further submitted that the learned trial judge who saw and heard the witnesses was in a better position to assess the credibility of the witnesses. And, that, it is only where and when the court fails to evaluate the evidence placed before it at all or properly that an Appellate court can intervene and itself evaluate or re-evaluate such evidence.
He referred to the cases of Adi v. The Queen (2007) 5 ACLR 597 at 598; Fatai v. State (2013) 10 NWLR (Pt. 1361) 1 at 21.
The law, said Counsel, is that evidence in a defence of alibi is considered on the balance of probabilities in the totality of the case since it constitutes an absolute defence to the charge. At the end of the case for the parties, the trial court will put the evidence of alibi against the evidence led by the prosecution. If there is any doubt in his mind, he will give the benefit of such doubt to the accused person. He referred to the case of Esangbedo v. State (1999) 1 ACLR 109.
He concluded that the learned trial judge having evaluated the evidence of the Appellant and other defence witnesses vis-'a-vis the evidence of the prosecution came to the right conclusion that the accused's alibi is demolished as the evidence of the prosecution fixed him to the crime.
I do agree with the court below that the defence of alibi could not avail the Appellant in the instant case. The Appellant raised the defence of alibi in his third statement to the police Exhibit L. In his two earlier statements to the police Exhibits R and Y he never supplied the details of his movements to the police for the investigation of the alibi, thus clearly, his statement in Exhibit L and whatever happened thereafter are after thoughts.
These facts were adequately captured by the learned trial judge at pages 111 - 112 of the record as follows:
"The first statement that the accused made was Exhibit R. It was admitted without any objection. It was made on the 8th November, 2009, a day after the incident. The accused was already aware of what happened to Afolabi Theophilus or Theophilus Afolabi. This is because in his evidence he said that his mother told him in the morning of 8th November, 2009 that someone attacked the deceased. He said he exclaimed who did it. He was later that day arrested for the attack. He did not tell the police he was far away from the place the deceased was attacked. He knew that the attack took place when the deceased was coming from "Teacher's place". He made a statement on the 9th November, 2009 which he claimed not to have made but which I think he did. The statement was initially labeled IDI but now it is labeled Exhibit Y. The accused conceded that he signed the signature of the cautionary words in Exhibit Y but he did not sign the one at the end of the statement. The problem is that the two signatures are very similar. In Exhibit Y, made two days after the event, the accused did not tell the police his whereabout at the time relevant to the charge. He merely said, "On Friday being 6/11/09 at about 6.00a.m. I left Ajegunle village to Araromi for marriage engagement of one Esther the young sister to my wife one Funke. I came back on Sunday morning being 8/11/09."
However in the statement of the accused taken on 11th December, 2009 the accused now gave the details of his movement at the time relevant to the charge. By this time the deceased had died and the complexion of the allegation against him had changed -------------".
Still on his painstaking evaluation of the defence of alibi, the learned trial judge further observed at page 115 of the record as follows:-
"--------- The various contradictory evidence led by the defence as to the actual time the accused left the reception venue also cast doubt on the credibility of the alibi raised. In Exhibit L, the accused said he was at Adegbemile Youth Hall at 7.30p.m. on 7th November, 2009. He said, 'he followed one Esther Ogini on her wedding ceremony'. In his evidence in court the accused said that he left Adegbemile Hall, the venue of the marriage reception at 6.25p.m. DW3, the wife of the accused said that she and the accused left the venue of the reception around 6p.m. DW2 said she left the venue of the reception at about 6.45p.m. and she left the accused at the venue of the reception. Both DW4 and DW5 said that they left the venue of the reception by 6p.m. and they left the accused at the venue. It is clear from the evidence reviewed that the actual time the accused left the venue of the reception is not clear. This is very significant as the venue of the reception Adegbemile is not too far from the scene of crime at Ajegunle/Ilu-Abo. DW5 said the farthest place in the axis where Ajegunle and Ilu-Abo are situated; Ayede Ogbese is about nineteen kilometers from Akure. There is evidence before me that the accused had a motor vehicle which he drove that 7th November, 2009. There must be evidence that it is physically impossible for the accused to be at the locus criminis before alibi can be sustained: See Ogoala v. The State (1991) 2 NWLR (Pt. 175) 509 at 521 D - E".
Now, beyond the issue of credibility of the defence of alibi raised by the Appellant as alluded to in the above excerpts in the judgment of the trial court. It is indeed important in the first place for a defence of alibi to be successfully raised for the accused to raise same at the earliest opportunity of contact with the law enforcement agencies. In raising the defence of alibi, the accused must at the earliest opportunity furnish the police with full details of the alibi, to check the details. See: Sowemimo v. State (2004) 11 NWLR (Pt. 885) 515; Nsofor v. State (2002) 10 NWLR (Pt. 775) 274; Balogun v. A-G Ogun state (2002) 6 NWLR (Pt. 763) 512.
The law relating to alibi is that an accused person who wishes to raise alibi must raise it at the earliest opportunity to enable the police to investigate it. The accused must offer evidence as to where he was at the time of the crime and with whom he was at the material time. See: Onyegbu v. State (1995) 4 NWLR (391) 510; Ifejirika v. State (1999) 3 NWLR (Pt. 593) 59; Isiekwe v. State (1999) 9 NWLR (Pt. 617) 43; Eyisi v. The State (2000) 12 SC (Pt. 1) 24; Njiokwuemeni v. The State (2001) 14 WRN 96.
In the instant case, the Appellant only raised the defence of alibi in his third statement to the police Exhibit L, and that was after he became aware of the death of the deceased. He had ample opportunity to have raised the defence in his earlier statements to the police Exhibits R and Y but he did not.
These facts greatly weaken the Appellant's defence of alibi. In any event, the unequivocal declaration of the deceased that the Appellant was his assailant pinned the Appellant to the scene of crime. This is because the defence by the accused that he was elsewhere at the material time of the offence was committed is destroyed by unequivocal evidence tying him to the locus in quo as one who committed the offence. Aiguoreghian v. State (2004) 3 NWLR (Pt. 860) 367; Nwosisi v. State (1976) 6 SC 109; Sowemimo v. State (supra).
Issue No. 3 is accordingly resolved against the Appellant.
Having resolved the three (3) issues in this appeal against the Appellant, the appeal lacks merit and it is dismissed.
The judgment, sentence and conviction of the Appellant on 27/2/2013 by the Hon. Justice D. I. Kolawole in Suit No. AK/48C/2010 is accordingly affirmed.
MOHAMMED AMBI-USI DANJUMA, J.C.A.:
I agree with the reasoning and conclusion that the appeal be dismissed. I concur.
JAMES SHEHU ABIRIYI, J.C.A.:
I read before now the Judgment just delivered by my learned brother MOJEED ADEKUNLE OWOADE, J.C.A.
He has exhaustively dealt with all the issues for determination. I have nothing more to add.
For the reasons contained in the said Judgment, I too dismiss the appeal.
I affirm the Judgment, sentence and conviction of the Appellant.