IN THE COURT OF APPEAL OF NIGERIA
ON WEDNESDAY, THE 9TH DAY OF MARCH, 2016
MOHAMMED BELLO YAURI Appellant(s)
THE STATE Respondent(s)
TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering the Leading Judgment):
This is the judgment in respect of the appeal filed on 10/3/2015 against the judgment of the Kebbi State High Court in charge NO.KB/HC/16C/2014: THE STATE VS MOHAMMED BELLO YAURI & 3 ORS delivered on 10/12/2014.
The charge against the four accused read thus:
That you Bello Muhammed Yauri M Okechukwu DukeÃ½MÃ½, Ali Musa M and Siddi Yauri, on or about the 31st day of January, 2011 at about 21:00, at Yauri Local Govt Area within the jurisdiction of High Court of Justice Kebbi State agreed to do an illegal act to wit abducted one Mrs. Fatima Ahmad, and that the same act was done in pursuance of the agreement and that you thereby committed an offence punishable under Section 97 of the Penal Code.
That you Bello Muhammed Yauri M, Okechukwu Duke M, Ali Musa M and Siddi Yauri, on or about the 31st day of January, 2011 at about 221:00pm at Yauri Town in Yauri Local Government Area of Kebbi State within the jurisdiction of High Court of Justice Kebbi State abducted one Mrs. Fatima Ahmad aged 74 years, in order that the said Mrs. Fatima Ahmad might be so dispose of as to be put in danger of being killed and thereby committed and offence Punishable under Section 274 of the Penal code.
Only one of the accused appeared for trial. Nevertheless the learned trial Judged proceeded to hear and determine the case after taking the plea of the 1st accused. In his judgment, the learned trial Judged found inter alia as follows
The fact that accused was involved to much in an issue that does not affect him either directly or indirectly, secondly he did not challenge the evidence of PW6 who was his boy reinforced by the unexplained defence of alibi made me believe that prosecution proved its case beyond reasonable doubt.
Fourthly the accused mentioned his statement EXH A that he immediately called PW3 on 31st January 2011, PW3 denied as he stated in his evidence in chief and I quote.
We search in the bush till the following day, the following day around 8:00pm when I left the bush to eat Bello called me, he told that he heard something happened in Yauri and he told me to great Katuka.
This piece of evidence is neither contradicted nor controverted. I therefore accept it was the following day he talked to him.
In light of the above finding, the unexplained defence of alibi reinforcement my believe that defence of alibi is properly demolished. I am therefore convinced prosecution proved its case beyond reasonable doubt and I convicted him as charged in respect of the 2 count offence.
It is against this judgment that the appellant filed the Notice of Appeal containing 4 grounds of appeal.
The grounds of appeal (excluding the particulars) are as follows:
The judgment of the trial Court is unreasonable, unwarranted and cannot be supported having regard to the weight of evidence.
The trial Court erred in law when it convicted the appellant relying heavily on the evidence of the PW6 as proof of circumstance evidence.
The trial Judge erred in law when it refused to evaluate the appellants defence but criticize same thereby denying him fair hearing in the case when the Court held:
I will first discuss the prosecution evidence and come to an independent finding on the truth or falsity of the story related by them and then to examine the statement of the accused, his evidence as DW1 and criticize it in the light of the circumstances brought on the record
The trial Judge erred in law when it held refused the defence of alibi raised by the appellant by the Courts expension (sic) of the law when the Court held:
So how did that information reached Alarama of no full name and address when the matter was still fresh, the names and address of this two gentlemen were not (sic) available to the prosecution and accused did not say specifically where he was throughout the 24 hours of the 31st January 2011.
After transmission of record of appeal which was deemed transmitted on 21/8/2015, parties filed and exchanged brief of argument.
The appellant's brief was filed on 2/10/2015. The brief was settled by Hussaini Zakariyyau.
Learned appellant counsel formulated two issues for determination to wit
1. WHETHER it's the appellants (sic) duty to proof alibi.
2. WHETHER the respondent refusal to investigate the appellant's defence of alibi contained in EXHIBIT A will not amount to a discharged and an acquittal for the appellant.
On issue No one, learned counsel for the appellant relying on BALOGUN V A G OGUN STATE (2002) 19 WRN 1 at 7 submitted that the appellant had no duty to prove his defence of alibi after raising same until the respondent adduced evidence to disprove before the onus shifted on the respondent.
Learned counsel submitted that the statement of the accused as contained in Exhibit A and A1 that was with the one Alarama in Benin was not investigated, He relied on AIGU OREGHIRAN V STATE (2004) 12 WRN 1 at 28.
He urged the Court to resolve issue one in favour of the appellant.
On issue two, learned counsel relied on BALOGUN V A. G. OGUN STATE (supra) and submitted that the alibi raised by the accused in his statement was not investigated and this was fatal to the prosecution'??s case. He cited AIGU OREGHIAN V STATE (supra) and ESENE V STATE (2013) 42WRN 153 at 159 in support. He submitted that the trial Judge erred when in relying on OBIODE V THE STATE (1970) ILALLNLR 35 refused to accept the uninvestigated defence of alibi raised by the appellant, he urged the Court to resolve issue two in favour of the appellant.
The respondent's brief was prepared by Umar Mohammad Mainasara, the Deputy Director Public Prosecution Sokoto State Ministry of Justice and filed on 2/11/2015.
Learned Deputy Director Public Prosecution (D. D. P. P.) formulated one issue for determination. The issue is
"WHETHER it's the appellant's duty to proof (sic) alibi"
Learned counsel for the respondent asserted that there was abundant evidence, the appellant and the 4th accused were to travel on 30/1/2011 but the journey was postponed to 31/1/2011 when the appellant saw the 4th accused with the PW6, he referred to page 49 of record and stated that the above place of evidence was not challenged by the appellant in his defence.
Learned counsel posited that it was not enough for the appellant to raise the defence of alibi but must give particulars of his whereabouts at the time of the commission of the offence to assist police investigation. The appellant failed to do so.
Learned counsel submitted that the respondent called evidence which fixed the appellant as the scene of the crime. He stated that Exhibit A contradicted his testimony on oath he cited AWONIRAN V STATE (2013) 47 WRN 138 at 138 AGWU V THE STATE (1985) 9 SC.221.
He finally urged the Court to dismiss the appeal and affirm conviction and sentence of the appellant.
I have deeply considered the submission of the learned counsel on both sides as well as the contents of the record of appeal. I have also considered the issues as formulated by the parties. I am of the respectful view that the pertinent issue in this appeal is whether or not the learned trial Judge was right to have convicted and sentenced the appellant in the light of the evidence adduced before him. I shall view this appeal in the light of this sole issue.
What is the nature of the evidence adduced by the prosecution against the accused/appellant? It is clear from the record that no eye Ã½ witness gave evidence against the accused. Nobody saw him kidnapping the victim, PW1. It is clear that nothing incriminating was recovered from him, the PW1. The victim did not also identify him as one of the kidnappers. He did not make confession at statement admitting involvement in the crime.
It is therefore clear that the evidence adduced against the accused/appellant looks like circumstantial evidence. What is circumstantial evidence?
Onu JSC in PETER V THE STATE (1997) 12NWLR (PT 531) 1 explained circumstantial evidence thus
"Before a person can be convicted upon circumstantial evidence such evidence must be so mathematically accurate that it points to the one and only irresistible conclusion that that person was the one responsible for the offence for which he has been charged."
His Lordship explained further "to support a conviction on the question of circumstantial evidence it must not only be cogent complete and unequivocal but compelling and lead to irresistible conclusion that the prisoner and no one else is the murderer. See YONGO V C. O. P. (1992) 8NWLR (PT 52); ALAKE V THE STATE (1992) 9NWLR (PT265)260." It must leave no room for reasonable doubt See JOSEPH LORI & ANOR V THE STATE (1980) 8 -11 SC; UWE ESAT & ORS V THE STATE (1976) 11SC 39, PAULINU'??S UDEDIBIA & ORS V THE STATE (1976) 11SC 133 at 138 Ã½?? 139 and OGWA NWEKE ONAH V THE STATE (1985) 3NWLR (PT 12) 236"
Circumstantial evidence is not evidence of suspicion which cannot be used to gain conviction. Suspicion no matter how high cannot ground criminal responsibility. See ORJI V THE STATE (2008) 10NWLR (PT 1094) 31 at 47.
Circumstantial evidence which lack cogency and mathematical accuracy as to the guilt of the accused is a mere suspicion and cannot be used to gain conviction.
What evidence was accepted by the learned trial Judge upon which he grounded conviction? They are
A. The evidence of the PW6 which was not challenged.
B. The strange inquisitiveness and overzealousness of the accused as to kidnapping of the victim.
C. The lies of the accused.
I shall proceed to consider the above evidence.
(1). The evidence of the PW6. The learned trial Judge on page 5 of his judgment summarized the evidence of PW6 this way
"Bala Usman alias Balan Kano was the PW6 that he knows both the accused and Sadiq, that two days to the incident Sadiq told him he was travelling with the accused. He took Sadiq where they decided to meet, he saw the accused walking to the scene with his big gown on his shoulder, a travelling bag and a radio, he left them there, they later postponed their journey to 31/01/2011. That the witness told him he was travelling with the accused. On the following day when they were travelling on 31/1/2011 Sadiq woke him up as early as possible, they share the same room and mattress. He told him that he was going to decided to take him on his machine, but sadiq replied no that he came with the accused machine, they bid fare well and left. Four days later accused came to the witness asking of the sadiq, he told accused that they travelled together, witness saw the phone of the sadiq with the accused, he asked him how manage, he replied that they exchange phones and even warned him not tell anybody that they travelled together with the sadiq.
Under cross examination witness stated that he gave statement to the police, that he does not speak and understand English that was not tutored witness."
It needs to be noted that the incident narrated by PW6 took place at Benin, and not Yauri in Kebbi State, It should also be noted that neither Sadiq nor the other accused person was produced by the prosecution to give evidence.
(2). The strange behavior of the accused was captured in the judgment of the Court in this way. The facts that the accused was involved to (sic) much in an issue that did not affect him either directly or indirectly and secondly, he did not challenge the evidence of the PW6 who was his boy reinforced by the unexplained defence of alibi made one believe that the prosecution proved its case beyond reasonable doubt.
Did the incident concern the accused directly or indirectly? How is the accused, to the victim of the abduction? They are from the same town. PW2, the son of PW1 described the relationship thus I know Bello Muhd Yauri (accused) he is standing trial, I know him since childhood for about 25 years ago, I know his house at Unguwar Maidamma the distance between our house is about 1KM.
PW3, Yusuf Alhassan further describe it as follows
I know Mohammad Bello (the accused person) I know him since 1987, he is a tailor he reside at Yauri, I know his house at Yauri is not far from our house just about 2KM. Fatima PW1 house is closer to the house of the accused PW4, Abubakar Sadiq Yelwa further describe in his evidence thus
"I am a farmer, I know Muhd Bello (Acc) he is my childhood mate, A know him as a tailor in Yauri"
It is clear from the evidence adduced by the prosecution witnesses that the accused person and the PW1- PW4 knew one another quite well. The inquisitiveness of the accused can therefore be justified. On the prosecution's own showing in the evidence of PW6, the accused was in Benin shortly before 31/1/2011.
The PW1 did not identify the accused as having come to her house in Yauri, and the recovered vehicle was not traced to the accused.
The property of PW1 was also not recovered from the accused. The ownership of the recovered vehicle was not traced to the accused. Accused did not make confessional statement. What is more, Pw1 said 4 people came to her house to abduct her, and did not say the accused was one of them.
If the evidence adduced by the prosecution is juxtaposed with what is stated above as evidence not adduced by the prosecution, it seem clear that the prosecution's case fell short of the standard expected. It was not direct and positive enough to be acceptable as circumstantial evidence capable of being used to convict the accused. It should be noted also that lying by the accused is not evidence of his guilt. See BOY MUKA & ORS V THE STATE (1976) 9 10SC: (Reprint) 193.
The evidence adduced in my respectful view was evidence of strong suspicion which could not take the place of legal proof, See OKAFOR V C. O. P. (1965) NMLR 89 at 90; ABIEKE & ANOR V THE STATE (1975) 9 -?? 11 SC. 60; LORI V THE STATE (1980) 8 - 11 SC. 81.
I need to comment on the issue of alibi argued by both counsel in this appeal.
What is alibi? It means according to Fabiyi JSC. In IKE V THE STATE (2011) LPELR - SC 364/2009 "This means that he was not at the scene of crime. Alibi means "Elsewhere"
The appellant in his evidence in chief said he was in Benin on 31/1/2011, PW6, the prosecution's witness said he saw the appellant last in Benin. The question is, even if the appellant was not in Benin on the day of the incident, would that have strengthened the prosecution's case to sustain the accused's conviction? One major problem in the prosecution's case is that little effort was made to link Sidik with the crime. Therefore associating the appellant with Sidik has no impact on the prosecution's case.
Sidik's (Sadiq) name featured prominently in the evidence of PW6. His suspicious movement with the accused shortly before 31/1/2011 was supposed to give flesh to the prosecutions case. But that would only be if the prosecution gave evidence linking Sidik with the crime. Otherwise, it would amount to an irrelevance that the accused was seen with Sidik or somebody else in Benin on that day.
On the evidence in the defence of the accused that he was in Benin was strengthened by the evidence of PW6 that he saw him in Benin shortly before and after the incident. Nobody gave evidence to the effect that he was seen at Yauri where the incident took place. It must be noted that alibi is a defence available to an accused and not a tool for the prosecution to use. Even when the accused fails to supply the particulars of an alibi, the prosecution still has to prove its case beyond reasonable doubt. See EBRI V THE STATE (2004) 18 NSCQR 45.
Another problem with prosecution's case is that there is strong evidence on record that the vehicle used by the kidnappers was abandoned and recovered by the police. The abandoned "Golf Vox Wagon" which was recovered was not tendered and admitted as exhibit neither is there any evidence on record that the ownership of the vehicle was investigated. Could the owner of the said vehicle have been one of the kidnappers? Could reasonable steps have been taken to arrest the owner of the said vehicle? Could better and stronger evidence have been obtained from the owner of the vehicle if arrested?
The gaping hole left in the prosecution'??s case reduced the case of the prosecution to mere case of suspicion.
It should be noted that the burden and standard of proof in criminal cases never shifts from the prosecution. The burden of proof lies throughout on the prosecution. See ANI V STATE (2003) 11 NWLR (PT 830) P. 142; WOOLMINGTOM V DPP (1935) AC. 462; OGBU NWAGU V STATE (1966) ALL NLR 201 at 208.
The standard of proof in criminal cases is proof beyond reasonable doubt. See ADEBESIN V THE STATE (2014) LPELR - SC 119/2010 where Ogunbiyi JSC. said on page 42
"The law is trite that the standard of proof in Criminal cases must be beyond reasonable doubt and not shadow of doubts. There must, therefore be evidence which identified the person accused with the offence and further that it was his act which caused the offence. Mere suspicion is not enough."
In the light of the above, I hereby resolve the sole issue identified by me in favor of the appellant. I am of the respectful view that the learned trial judge wrongly acted on evidence of suspicion as opposed to circumstantial evidence to convict the accused/appellant.
This appeal succeeds and it is hereby allowed.
The conviction and sentence of the appellant by Hon. Justice Bashir Haruna Isma'il of Kebbi State High Court of Justice Birnin Kebbi in case No.KB/H/16C/2014 on 10/12/2014 is hereby set aside, in its place I hereby order that the accused (appellant) is discharged and acquitted on each of the counts of the charge.
PAUL ADAMU GALINJE, J.C.A.:
MUHAMMED L. SHUAIBU, J.C.A.:
I read before now, the judgment just delivered by my learned brother, T. O. Awotoye, JCA. I agree with the reasoning contained therein and the conclusion arrived thereat.
evidence must satisfy is that it should lead to the guilt of the accused person and leave no degree of impossibility or chance that any other person could have been responsible of the commission of the offence.
I consequently agree with my learned brother that the evidence led by the prosecution and which was used as the basis for convicting the Appellant lacked the cogency and mathematical accuracy expected of a circumstantial evidence.
In Exhibit "A" the accused person raised a defence of alibi wherein, he inter alia stated as follows:-
"I could remember on 31/01/2011, I was in Benin in my shop with one Gambo Mohammed "M" of Kano State and one Alh. Alarama came and ask me whether I am aware of what happened at Yauri? That the announce in the radio. I reply no. From there I call one of my brother Babangida and ask him which he confirmed to me that it's the mother of Sadiq that was kidnapped from there I call one of my boy which I teach him tailoring to go and greet Sadiq for me"...
An alibi is:-
(a) a defence based on the physical impossibility of a defendant'??s guilt by placing the defendant in a location other than the scene of the crime at the relevant time, and
(b) the fact or state of having been elsewhere when an offence was committed. See OKOSI V. STATE (1989) 1 NWLR (Pt.100) 642.
Where as in the instant case, a defence of alibi is raised the primary onus of establishing the guilt of the accused is still on the prosecution, but the evidential or secondary burden is on the accused to adduce evidence of where he was at the material time. That evidence may convince the Court in which case he wins, or it may cause the Court to doubt in which case again the accused wins. But where the Court prefers the prosecution's evidence to the accused's evidence then the alibi fails.
But once a defence of alibi has been promptly and properly put up, the burden is on the prosecution to investigate it and rebut such evidence in order to prove the case against the accused beyond reasonable doubt. This is so because the onus is on the prosecution to prove the charge against the accused beyond reasonable doubt and it never shifts, and there is also no onus on the accused to prove alibi beyond that of introducing the evidence. See BOZIN V. STATE (1985) 2 NWLR (Pt.8) 465 and AZEEZ V. STATE (2005) 8 NWLR (Pt.927) 312.
In the instant case, the prosecution not only failed to investigate the accused's alibi, the Lower Court was also in grave error in shifting the burden on the accused beyond that of introducing the evidence of alibi. At page 69 of the record of appeal, the Lower Court found as follows:-
"Upon all these grievous allegations accused did not find it prudent to inform the respectable of his working place; did not think it prudent to contact his friends and associates in Benin. No explanation is forthcoming as to why accused warned PW6 not to divulge the story of Sadiq and their journey."
Once the accused person successfully pleaded the defence of alibi and the prosecution could not investigate evidence to pin down or fix the accused person at the place of the commission of the said offence, then the Court is bound to hold that the prosecution failed to establish their case beyond reasonable doubt such accused will then be discharge and acquitted.
It is for the foregoing reasons in addition to those more elaborately set out in the leading judgment that I also allow the appeal and set aside the judgment of the Lower Court. I equally discharge and acquit the Appellant.
Hussaini Zakariyau Esq. For Appellant
Umar Muhammed Mainasara Esq. For Respondent