WASARI UMANI (APPELLANT)

v.

THE STATE (RESPONDENT)

(1988) All N.L.R. 145

Division: Supreme Court Of Nigeria

Date of Judgment: February, 5, 1988

Case Number: (SC. 177/1986)

Before: Nnamani, Uwais, Belgore, Wali, Craig JJ.S.C..

The appellant and 5 other persons were charged in the High Court of Kano State with Culpable homicide punishable with death, an offence punishable under section 221 (b) of the Penal code.

The whole incident arose from the turbaning ceremony of the new village head on the 15th of January 1983. Two factions appear to have arisen in the village made up of supporters of the old village head and the supporters of the new village head. According to the testimony of the 3 principal witnesses for the prosecution, i.e. PW1, PW2, and PW3, they saw the 6 accused persons (the 3rd accused; was at large and his name was struck out at the end of the trial) enter the compound of the deceased. While the deceased was sitting in front of his room in the compound these accused persons started beating him with sticks, knife, sword and axe. The beating continued until the deceased was unconscious. When the police later arrived the second prosecution witness assisted them in carrying the deceased into a vehicle that conveyed him to a hospital at Jahun where he later died. From the medical report Exhibit A, the cause of death was said to be due to severe head injury causing coma.

At the close of evidence and addresses of counsel the trial judge upheld the defence of alibi raised by 1st, 2nd, 5th, 6th and 7th accused persons and discharged them. He rejected the defence of alibi raised by the appellant herein, which defence was not raised in his statement to the police but only in his testimony in court. He dubbed it as an after-thought.

The appellant appealed to the Court of Appeal which dismissed his appeal.

He therefore appealed further to the Supreme Court.

HELD:

(1)     While I agree that the learned trial Judge was clearly under a duty to consider all possible defences available to the defence even if they were not raised by the defence, I can see nothing suffered by the appellant by his failure to consider those two defences (provocation and self-defence). There was nothing to sustain them. The Court of Appeal, however considered those two defences and arrived at the same conclusion which I reached although for different reasons.

(2)     Because of the burden on the prosecution to prove the guilt of the accused person beyond reasonable doubt, once a defence of alibi is set up, there is a duty on the prosecution to investigate it once it was made known to it at the earliest opportunity. A court of trial faced with evidence tending to show that the accused person was somewhere else at the time of commission of the crime is under a duty to test such evidence against the evidence led by the prosecution in rebuttal, and if on the whole the court is in doubt as to the guilt of the accused such accused must enjoy the benefit of such doubt and be acquitted.

(3)     The evidence on which the learned trial Judge has based his conclusion on the guilt of the 4th accused (appellant) is the testimony of the PW1, PW2, PW3, testimony which in discharging 5 accused persons he has at the very least cast so much doubt. I find it extremely hard to remove from my own mind doubt as to the guilt of the appellant. It has to be remembered that apart from the testimony of PW1, PW2 and PW3, there is no other evidence linking the appellant with the crime.

(4)     From the earliest times, the principle has been, and indeed it is now trite, that the burden is on the prosecution to prove the guilt of the accused person beyond reasonable doubt. If there is any doubt whatsoever, the benefit of it must be given to the accused person and he must be discharged and acquitted. Such a doubt exists in this case and I shall resolve it in favour of the appellant.

Appeal allowed.

Uwais, J.S.C. (dissenting) "It does not always follow that once the prosecution failed to investigate an albi, such failure is fatal to the case of prosecution. The trial judge has a duty, even in the absence of investigation, to consider the credibility of the evidence adduced by the prosecution vis-a-vis the alibi. In the present case there is already the testimonies of PW1, PW2, PW3, which showed that all the accused persons including the appellant were present at the scene of crime and that they participated in the commission. The evidence of those prosecution witnesses could have been properly used in testing the defence of alibi set by the accused persons discharged. This however was not done by the trial judge; instead he said he believed the evidence of the discharged accused persons.

There is therefore a valid ground on which the belief or finding of the learned trial Judge could be interfered with."

Graig, J.S.C. (also dissenting) "I have read the judgment of my learned brother Uwais, J.S.C. and I agree with his views that possibly if the trial judge had made proper use of the evidence of the eye witnesses who positively saw the accused persons at close range at the scene of the crime, he probably would have convicted them."

V. C. O. Achikeh Acting Director-General of legal Aid for the Appellant

A. L. Yakub Solicitor-General Kano state (with him Mrs P.A Mahmoud, Director and Chief Legal Draughtsman for the Respondent

Cases referred to:

(1)     Akile Gachi & ors. v. The State (1965) NMLR333

(2)     Lawrence Ogbodi Odidika v. The State (1977) 2 S.C 21, 23-24

(3)     Obiode & ors v. The State (1970) All NLR 35 at 40

(4)     Obinga & ors v. The Police (1965) NWLR 172

(5)     Okonji v. The State (1987) 1 NWLR659

(6)     Oriese Yanor & ors. v. The State (1965) NMLR 337; (1965) 1 NCNLR 199

(7)     Patrick Njovens & ors v. The State (1973) NMLR 331

(8)     R. v. Ani Nwokafor & ors (1944) 10 WACA 5

(9)     R. v. Harris (1977) 20 C. App. R. 148, 149

(10) R. v. Mohammed Bada & anor (1944) 10 WACA 249

(11) The State v. Usor (1972) NMLR 211

(12) Woolmingtion v. D.P.P. (1935) AC 426, 481

Statute referred to:-

(1)     Penal Code

Nnamani, JSC. The appellant was the fourth person in charge No. K/49C/84 in the High Court of Kano State. The charge read as follows:-

"That you Alhaji Dantofa, Hassan Butsatsa Kanye, Kari Galadima Wasari Umani, Mohammadu Amnur Dodo, Jata Barde and Manuwa Sule on or about the 15th day of January, 1983 at Gavando village in Jahun Local Government Area with in the Kano Judicial Division did commit culpable homicide punishable with death in that you caused the death of one Abdul Aziz Dantakake by doing an act to wit: beating him with sticks and iron with the knowledge that his death would he the probable consequence of your acts and thereby committed an offence punishable under Section 221(b) of the Penal Code"

It would appear that the whole incident arose from the turbaning ceremony of the new village head on 15th January, 1983. Two factions appear to have arisen in the village made up of supporters of the old village head and supporters of the new village head. According to the testimony of the 3 principal witnesses for the prosecution, i.e. PW1, PW2, PW3, they saw the 6 accused persons (the 3rd Accused was at large and his name was struck out at the end of the trial) enter the compound of the deceased. While the deceased was sitting in front of his room in the compound these accused persons started beating him with sticks, knife, sword and axe. The beating continued until the deceased was unconscious, When the police later arrived the second prosecution witness assisted them in carrying the deceased into a vehicle that conveyed him to a hospital at Jahun where he later died. From the medical report Exhibit A, the cause of death was said to be due to severe head injury causing coma. The injuries were explained by the doctor as "big lacerated wound in the left side of the scalp, incised wound below right side of the chin about two centimetres long and penetrating deep into the floor of the mouth. Lacerated wound on the left ear-lobe."

The prosecution also tendered as exhibits C-CI a stick, axe and one long knife said to be recovered at the scene of crime. They were said to have been recovered in the house of the deceased. In their defence all the accused persons raised a defence of alibi although as I shall show later in this judgment, the appellant herein raised that defence only during the trial. It is also pertinent to mention that the defence witness I testified to the effect that he was present at the turbaning ceremony of the new village head on 15th January, 1983. He claimed that when the new village head's entourage was coming back they met Abdul Aziz, the deceased and one Kojo holding a stick and an axe respectively. When according to him, PW2 said anybody entering Garado village should be killed, he removed the turban of the new village head, took him to one of the class rooms in the school and locked him there. By the time he returned from lodging a report at the Jahun Police Station the clash had already taken place. According to him the clash took place at the premises of the primary school.

At the close of evidence and addresses of counsel, the learned trial Judge, Fernandez, J. held that the disturbance started somewhere but ended in the house of the deceased. The learned trial Judge upheld the defence of alibi raised by the 1st, 2nd, 5th, 6th and 7th Accused persons and discharged them. He rejected the defence of alibi raised by the appellant herein, which defence was not raised in his statement to the Police but only in his testimony in Court. He dubbed it an afterthought.

The appellant appealed to the Court of Appeal which on the 26th March, 1986 dismissed his appeal. He has now appealed to this Court. Originally, 2 grounds of appeal were filed. During hearing in this Court, however, learned Acting Director-General of Legal Aid, Mr Achikeh who appeared for the appellant abandoned ground one of the original grounds and argued, with leave of this Court, two additional grounds of appeal which he filed. All the grounds complained of the evaluation of evidence by the two lower courts as well as on the Court of Appeal's treatment of alleged defences of self-defence and provocation, and conflicts or contradiction in the evidence of the prosecution witnesses. In his brief of argument Mr Achikeh listed 3 issues for determination. These are:-

"(1)    Whether the evidence on the records was not enough for the Court of Appeal to hold that the deceased sustained the injuries from which he died at the place where his group attacked the appellant's group i.e. near the primary school.

(2)     Whether the evidence on the records was not enough to raise some doubts about the place where the deceased sustained the injuries from which he died.

(3)     Whether the fact that the accused/appellant lied at the trial justified his being denied the defences of self defence and provocation by the trial court and the Court of Appeal."

In his submissions to this Court in amplification of his brief of argument, Mr Achikeh referred to the testimony of the first defence witness to the effect that the fight took place in the school not in the house of the deceased. He submitted that there was only one fight between the supporters and opponents of the new village head and that that fight was in the primary school. During that fight, he further submitted, the deceased and PW2 were present. He also referred to the testimony of PW3 to the effect that it was the PW2 and PW4 who carried the deceased home. After referring to some discrepancies in the evidence of prosecution witnesses, he submitted that the statement of the appellant, Exhibit B4-B5, was not given due consideration by the learned trial Judge and the Court of Appeal. Finally, he submitted that the fact that the learned trial Judge discharged 5 of the accused persons meant that he did not believe PW1, PW2 and PW3, the principal witnesses for the prosecution.

In her reply also in amplification of the respondent's brief, learned Counsel to the respondent, Mrs Mahmoud, submitted that the evidence adduced was properly considered by the trial Court and the Court of Appeal. As to the evidence of DW1, she said that the learned trial Judge was right in not considering it specifically as that witness was not present when the fight actually took place. In reply to the appellant's counsel's submission that the discharge of the other accused persons weakened the case of the prosecution against the appellant, she relied on the case of Obiode & Ors. vs. The State (1970) 1. All N.L.R.35 at 40. She submitted that if the discharge of the accused persons was on a technicality (non-investigation of their defence of alibi) as it was, then it did not affect the belief of the evidence of PW1, PW2 and PW3 by the learned trial Judge. She conceded, however, that trial judge ought to have tested the alibi set up by the discharged accused persons.

With all respect, I think the real issue which arises for consideration in this appeal is the effect, if any, of the discharge of the other accused persons on the evidence of the principal witnesses for the prosecution-PW1, PW2, PW3-which was the evidence on which the appellant was convicted. Put more clearly, the learned trial Judge having accepted, against the positive testimony of PW1, PW2, PW3 that they saw all 6 accused persons attack the deceased in his house, the defence of alibi set up by the 5 accused persons who he therefore discharged, could one rely on the evidence of identification by the same principal prosecution witnesses to convict the appellant or was there a doubt which should ensure to the benefit of the appellant?

Before coming to this issue, perhaps I ought to deal with the other issues which I regard as peripheral and which were raised by Mr Achikeh. As to the venue of the fight, I am inclined to agree with the conclusion of learned trial Judge. He said on this-

"From what I have on record (sic) it appears to me that the disturbance started somewhere but ended in the house of the deceased. This is because the 2nd, P.W. and the 3rd P.W. were already informed by some boys that there was a fight going on"

The story of the PW1, PW2, PW3 which suggested that the accused persons broke the fence of the deceased's house and attacked him seemed unnatural as they never specifically mentioned that anything had happened any where else between the parties. On the other hand too one could not accept the whole testimony of DW1 who claimed that the fight started and ended at the primary school. If one did, what would one make of Exhibit C-C1 which the investigating police officer claimed were collected at the scene of crime which he said was the deceased's house. This evidence which was believed by the learned trial Judge and not disturbed by the Court of Appeal, ought not to be disturbed in this Court. Mr Achikeh also made heavy weather of the fact that the PW2, said he was the only person around at the time of the incident and yet PW1 and PW3 claimed too to be eye witnesses. Having regard to the nature of the incident which certainly could induce fear and did induce fear, was it not possible that each eye witness would think he or she was the only person around? Each of the 3 witnesses was observing the incident from the safety of his own house; infact PW2 said his wife insisted that he must not go out.

As for the defences of provocation and self defence which Mr Achikeh contended ought to have been considered, I am of the view that there is no evidence on which the defences could have rested. Evidence tending to raise such defences can only be found in the testimonies of the appellant and the DW1. In his testimony which I agree the learned trial Judge never specifically considered nor rejected, the DW1 merely said that there was an incident at the primary school premises as the new village head's entourage was approaching. He said that the deceased was holding a stick. He admitted however that the fight had ended before he got back from the Jahun Police Station where he went to lodge a report. There is therefore nothing from his evidence from which one can deduce what part, if any, the deceased played in the fight as to consider possible defences of self-defence and provocation.

As for the appellant, in his statement to the Police which was received in evidence as Exhibits B4-B5, he said in effect that there was a fight between the supporters of the new village head and the old one and that he was one of the supporters of the new one.

He claimed that he was beaten. In part the statement was in these terms:-

"On Saturday the 15/1/83 at about 1600 hrs we the supporters of the newly elected village head of Garado Mallam Sale Galadima were escorting him from Nahuche village into Garado ...

As we were almost entering the village at the school ground, the supporters of the old village head were... They told us not to enter the village with the new village head Sale Galadima. The people were holding sticks and I grab Alhaji Yusufu Na Dabo the man I know and I also saw following people ...

The supporters of the old village head attacked us first with their sticks and we the supporters of the new village head retaliated and we started fighting. I was beaten so well that I became unconscious during the fight. After the fight I later understood that one person died and the other died in the hospital ...

Those that lost their lives in the fight were (1) Ahmadu Marshal and (2) Abdul Azizu ..."

In his testimony in Court the appellant completely changed his story. Although he admitted that there was indeed a fight between the supporters of the new and past village head, he claimed that he was neither at the installation ceremony of the new village head nor was he at the fight.

He said he was in his farm and it was only when he was returning from the farm that some one hit him. He did not see the person. There was thus a clear conflict between the appellant's statement to the Police and his testimony in Court. That is not evidence from which possible defences of provocation and self defence could be considered, for it is well settled that where such a conflict as occurred here exists, the learned Judge can ignore both the statement to the Police and the testimony in Court. There is hardly any probative value in such statement or testimony. See The State v. Usor (1972) N.M.L.R.211; R. v. Harris (1977) 20 Cr App R 148, 149. In the recent case of Oladejo v. State (1987) 3 N,W.L. pt.61 364 at 427 this Court dealt with this matter in greater detail. There I said as follows:-

"Contrary to the conclusion of the learned trial Judge, the law is rather that where a witness (here an accused person) makes a statement which is inconsistent with his testimony such testimony is to be treated as unreliable while the statement is not regarded as evidence upon which a court can act" See pp. 427-428.

While I agree that the learned trial Judge was clearly under a duty to consider all possible defences available to the defence even if they were not raised by the defence, I can see nothing suffered by the appellant by his failure to consider those two defences (provocation and self-defence). There was nothing to sustain them. The Court of Appeal, however, considered those two defences and arrived at the same conclusion which I reached although for different reasons. As Maidama, J.C.A. said at p.51 of the record-

"If it was correct that he (i.e. the appellant) was among the supporters of the new village head at the time they were attacked by the supporters of the old village head, then the defences of self defence and provocation will avail him depending on the circumstances of the case. However, at the trial, the appellant gave a different story and tried to set up an alibi by stating that he was neither at the installation ceremony nor was he present at the time the fight started. His defence of alibi was not accepted by the learned trial Judge. This is because the evidence of PW1, PW2, PW3, which was accepted by the learned trial Judge showed that the appellant and others quite independently of the fight which took place elsewhere went to the house of the deceased and beat him to death. Even if the fight which took place elsewhere was provoked by the supporters of the old village head, that provocative act did not flow from the deceased to justify his being killed by the gang which entered his compound at the material time"

Now to the issue of Alibi. An alibi means nothing more than "elsewhere" i.e. that the accused person was some where also at the time of the crime. It has been settled that since the burden of proving the guilt of an accused person beyond reasonable doubt lies on the prosecution and does not shift, once the defence sets up an alibi, it is for the prosecution to lead evidence to disprove it. But the evidential burden of proof lies on the accused person who sets up such a defence. This burden is no more than a duty on the accused person to adduce evidence which would tend to show that he was somewhere else other than where the prosecution alleges he committed the crime. Akile Gachi and Ors v. The State (1965) N.M.L.R. 333; Oriese Yanor and Ors v. The State (1965) N.M.L.R. 337; (1965) 1 All N.L.R. 199; Lawrence Ogbodi Odidika v. The State (1977) 2 S.C.21, 23-24. See also Patrick Njovens and Ors v. The State (1973) N.M.L.R. 331. Because of the burden on the prosecution to prove the guilt of the accused person beyond reasonable doubt, once a defence of alibi is set up there is a duty on the prosecution to investigate it once it was made known to it at the earliest opportunity See Obinga and Ors vs. Police (1965) N.M.L.R.172. A court of trial faced with evidence tending to show that the accused person was somewhere else at the time of the commission of the crime is under a duty to test such evidence against the evidence led by the prosecution in rebuttal, and if on the whole the Court is in doubt as to the guilt of the accused such accused must enjoy the benefit of such doubt and be acquitted See Yanor's case supra. In that case Idigbe, J.S.C. at page 342 said:-

"While the onus is on the prosecution to prove the charge against an accused the latter has, however, the duty of bringing the evidence on which he relies for his defence of alibi, when such evidence has been adduced the Court should consider it in the light of the evidence adduced by the prosecution in support of the charge against the accused and if in the end the Court is unable to reach a decision on the question whether the evidence in support of the case is stronger than that produced in support of the alibi, the accused must be acquitted."

It is against the background of these principles of law that the decision of the learned trial Judge must be considered. As mentioned earlier, all the accused persons raised a defence of alibi, the appellant's albeit belatedly. While the 1st, 2nd, 5th, 6th and 7th accused persons raised this defence in their statements to the Police which they adopted in support of their defence at the trial, the appellant raised no alibi in his statement to the Police. His defence of alibi was raised in the course of his testimony. The learned trial Judge, as I think he was entitled to do, rejected it in very scathing terms. I shall return to this later.

It might be instructive to examine the nature of the defence of alibi put up by the other accused persons. In his statement to the Police which he adopted as part of his defence, the first accused person said in Exhibit B-B1,-

"I could remember that about five (5) months ago I was at Chadi Republic working for money and I remain there for two (2) month (Sic). From there I went to Ogbomosho Oyo State and stay there for three (3) month (Sic). Then one Semhodi Genu Hardo Tohuwa village came met me at Ogbomosho and told me that some people fought at Garado village"

The other statements are in the same vague terms. Those statements raising this defence of alibi were not investigated by the prosecution as they were obliged to do. Against this defence of alibi, however, was the positive and unequivocal evidence of PW1, PW2, PW3, identifying the accused persons as the persons who entered the deceased's compound and beat him to death. The evidence of the PW2 in this direction is very instructive; the witness said identifying the accused persons-

"One was holding a (sic) axe, the other with a knife and another one with a sword. The axe belongs to 4th accused. The stick belong (sic) to 5th accused. The sword belongs to 1st accused. The accused broke the fence and entered the house ...

They beat the deceased until he was unconscious I was standing in front of my room looking at them. The 1st accused saw me standing threw a wooden postal (pestle?) which fell on my right hand broke my wrist. My house is opposite the house of the deceased" (Italics mine)

The learned trial Judge did not, as he ought to have done, consider this positive evidence of identification against the defence of alibi raised before deciding whether any doubt existed which should ensure to the benefit of the accused persons. He was only concerned with the failure of the prosecution to investigate an alibi which was raised by the 1st, 2nd, 5th, 6th and 7th accused persons at the earliest opportunity. As he put it,-

"the statement made by the accused person i.e. 1st, 2nd, 5th, 6th and 7th were not disproved by the prosecution and to this end I am bound to believe their statements and to hold that they were not around the scene of crime at the time of the incident...

He continued-

"In respect of the 1st, 2nd, 5th, 6th and 7th accused. I am of the view, having regard to their alibi which was not disproved, that the prosecution has failed to discharge the onus placed on it and they are accordingly discharged"

The learned trail Judge believed the statements of the accused persons without testing them against the positive evidence of PW1, PW2 and PW3 set down above. To that extent there is no doubt in my mind that he erred in law. Those accused persons ought not to have been discharged. Luckily for them, however, their case is not before this Court there being no appeal against their discharge. What is therefore, in issue is whether these errors do in any way affect the case of the appellant. The use of the word believe in the passage set down above does introduce problems. It might have been better for the learned trail Judge to give the benefit of any doubt that arose from the non-investigation of the accused persons' statements to them rather than talk of "believe". If he believed the 1st Accused that he was in Chad Republic during the incident and in effect disbelieved P.L.2 who so positively identified him as I have shown above, ought he to believe the same PW2 who said the 4th accused person (appellant) had an axe on the day of the incident?

Mrs Mahmoud has quite forcefully submitted that the learned trial Judge merely discharged the other accused persons on a technicality not that he disbelieved the prosecution witnesses. I am not quite sure that on the record that is what he did even if that was what he intended. Mrs Mahmoud who relied on Obiode (supra) might have gone on to submit that the learned trial Judge could quite rightly believe part of the testimony of the P.W.P or any other prosecution witness for that matter, and disbelieve the other Part. That is infact what this Court decided in that case. Fatayi-Williams, J.S.C. (as he then was) at page 40 of the report said-

"We agree with Mr Gbemudu that a trial Judge can, under certain circumstances, accept part of the testimony of a witness and reject the rest. Moreover, it is not impossible, particularly in a case where the identification of the accused person is crucial, for a trial Judge still to have some doubt, on the totality of the evidence, as to the presence of that accused person at the scene of crime, despite the fact that he finds the prosecution witnesses truthful. He may well feel having regard to other equally convincing evidence that the particular prosecution witness might have been genuinely mistaken as to the identification of a particular accused" (Italics mine)

Although in this case and in the instant appeal identification was crucial, the two cases are not on all fours. This was a case in which two villages-Ovwodokpokpo and Bethany-Ehao were disputing a piece of land. Some persons, including the accused persons in that case, from Ovwodokpokpo village raided the village of Bethany-Ehao and Sapele Ehao and committed arson and extensive damage to property there. The 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, 8th, 9th, and 10th Accused persons were tried for the offences.

First it is significant that the three accused persons discharged i.e. the 5th, 7th and 10th accused persons were not even identified by the 6th and 8th prosecution witnesses whose testimony the learned trial Judge accepted as to the identification of the 4th, 8th and 9th accused persons. It was therefore not really a case of the prosecution witnesses identifying a set of accused persons who were convicted, while another set of accused persons identified by the same prosecution witnesses were discharged. In the instant case, the accused persons were all identified by all principal prosecution witnesses.

Furthermore, in the Obiode case it would seem from the judgment that the learned trial Judge considered the defence of alibi put up by each accused person against the evidence led by the prosecution before deciding to give the benefit of doubt to the accused persons discharged. In the latter part of his judgment he said-

"I believe the evidence of the witnesses for the prosecution. They impressed me as witnesses of truth, particularly the evidence of Manu Agari PW6 ... I reject the evidence of the accused persons. I do not believe that this charge has been brought against them because of the land dispute nor do I believe that they have been selected for prosecution because they are prominent leaders of the community"

Such consideration may unearth some other equally convincing evidence which would cast doubt on the testimony of a prosecution witness and so sustain a defence of alibi.

In respect of the 3 accused persons discharged the learned trial Judge had earlier said-

"On the defence of alibi put forward by the 1st, 2nd, 5th, 7th, 9th and 10th accused, I am satisfied with the defence of alibi of the 5th, 7th and 10th accused. I find them not guilty on all the counts and they are acquitted and discharged."

In the instant appeal, the learned trial Judge did not embark on any consideration of the defence of alibi against the evidence of the prosecution. He merely looked at the statements and believed them.

I see no other convincing evidence which would have justified the rejection of the positive testimony of PW2.

As regards the alibi raised by the appellant, the learned trial Judge, as I had already indicated in this judgment, regarded it as an afterthought. After dealing with the case of the discharged accused persons he said-

"The position of the 4th accused is not the same as other accused persons. This is because he raised the defence during the trial. Although he called the 3rd defence witness to corroborate his evidence, one wonders why he did not make such statement to the Police. In his statement Exhibit B4-B5 he told the police that he was in the entourage of the new village head during the turbaning ceremony. According to him he witnessed what happened, and he was even beaten by the supporters of the old village head. Thus for such an accused person to give contrary evidence and even call a witness to that effect beats my imagination. I regard this defence of alibi as an after-thought. I also reject the evidence of his witness in its entirety. I therefore hold the prosecution has discharged the onus placed on it in respect of this accused"

He later concluded on the appellant-

"Thus on the totality of the evidence adduced by the prosecution, and as I have earlier said in this judgment, I find as a fact that the 4th accused was among those who committed the crime alleged on the charge."

Except perhaps for the 3rd accused who is still at large I do not know who else was supposed to be in his company. The evidence on which the learned trial Judge has based his conclusion on the guilt of the 4th accused (appellant) is the testimony of the PW1, PW2, PW3, testimony which in discharging the 5 accused persons he has at the very least cast so much doubt. I find it extremely hard to remove from my own mind doubt as to the guilt of the appellant. It has to be remembered that apart from the testimony of the PW1, PW2, PW3 there is no other evidence linking the appellant with this crime.

There are a few other matters which have heightened my doubt, Although it was clear that the dispute was between the supporters of the old and new village heads (PW2 infact contested election to the post of village head), the principal witnesses gave evidence as if nothing happened before the accused persons entered the home of the deceased and beat him to death. Secondly, although the learned trial Judge was right in his conclusion that the fight started at the primary school and entered in the house of the deceased, there were loose ends which must make acquittal inevitable. The evidence of DW1 that the deceased was seen at the primary school holding a stick was never adverted to by the learned trial Judge; the DW3 who was an in-law of the deceased said that it was the PW2 and PW4 who carried the deceased home from the primary school. Although the learned trial Judge disbelieved the DW3, a close examination of that part of the trial Court's Judgment seems to suggest that it was only his testimony as to the alibi which was disbelieved. Then there was the testimony of the PW3, a relation of PW2 that when he looked for PW2, he was not in. From the earliest times, the principle has, been, and indeed it is now trite, that the burden is on the prosecution to prove the guilt of the accused person beyond reasonable doubt, See Woolmington v D.P.P. (1935) A.C.426, 481. If there is any doubt whatsoever, the benefit of it must be given to the accused person and he must be discharged and acquitted. See R v. Ani Nwokafor and Ors (1944) 10 W.A.C.A. 5; R v Mohammed Bada and Anor. (1944) 10 W.A.C.A. 249. Okonji v. The State (1987) 1 N.W.L.R. 659.

Such a doubt exists in this case and I shall resolve it in favour of the appellant. Accordingly, I allow the appeal and set aside the judgment of the Kano High Court dated 7th March, 1985 and the judgment of the Court of Appeal, Kaduna Judicial Division dated 26th March, 1986. In their place I find the appellant not guilty of Culpable Homicide punishable with death.

He is discharged and acquitted.

Uwais, JSC. I have had the privilege of reading in draft the judgment read by my learned brother Nnamani, J.S.C. I regret that I am unable to agree with the conclusion reached therein on the vital question whether the case against the appellant had been affected by the discharge of the five co-accused persons-who stood trial with him-on the failure of the prosecution to investigate the pleas of alibi, which they all raised in their statements to police and testimonies respectively.

The prosecution case at the trial before Fernandez J. (then of the Kano State High Court) was that the accused persons committed culpable homicide punishable with death on 15th January, 1983 by causing the death of one Abdul Aziz Dantakake. The facts as narrated by the prosecution witnesses may be summarised as follows.

A new village head was installed for Garado Village in Jahun District of Kano State. On the day the installation took place-15th January, 1983-a group of six people entered into the compound of the deceased-by breaking his fence. These six people were identified as the accused persons before the trial Court. The Appellant who was the 4th accused person was carrying an axe, while the 1st and 5th accused persons were respectively carrying a sword and a stick On getting entrance into the deceased's compound the accused persons attacked the deceased, who was then sitting outside his room, with the lethal weapons they were carrying. The deceased became unconscious. He was carried to the general hospital at Jahun, where he later died. A post-mortem examination was conducted on the deceased's corpse and the report of the medical officer who carried out the autopsy was tendered in evidence, as exhibit A, in accordance with the provisions of section 249 subsection (3) of the Criminal Procedure Code. The report showed that the deceased suffered "big lacerated wound in the left side of the scalp, incised wound below right side of the chin about two centimetres long and penetrating deep into the floor of the mouth. Lacerated wound on left ear lobe." In the opinion of the medical officer, the deceased died due to severe head injury, which caused Coma.

Statements in Hausa were made to the police under caution by all the accused persons. With the exception of the appellant, all the other accused persons set up the defence of alibi. These statements as well as their translations in English were tendered in evidence at the trial, as exhibits B-B1, B2-B3, B4-B5, B6-B7, B8-B9 and B10-B11.

The case for the defence which was stated in the testimonies of all the accused persons including the appellant and the 3 witnesses that they called, was that following the turbaning ceremony of the new village head of Garado Village there was a fight between the supporters of the new village head and those of PW2 who contested for the office of the village head and lost. The fight took place at a primary school, when the PW2 told his supporters to kill anyone who went into Garado Village. In other words the new village head and his supporters who were escorting him after his installation should be killed if they entered the village. The deceased was seen by DW1 carrying a stick and one Bojo or Kojo was holding an axe. DW2 removed the turban worn by the new village head and took him into hiding in one of the classes of the primary school and he was locked in there. A fight ensued at the premises of the primary school and the deceased was killed at the scene.

It is pertinent to mention here that in their testimonies at the trial, all the accused persons pleaded alibi. The appellant for the first time and the other accused persons repeated the alibis they set-up in their statements to the police by adopting the statements. The appellant called DW3 who gave support to the alibi he set-up. I will return to this later in the judgment.

In a considered judgment Fernandez J. resolved the inconsistency between the prosecution's case and that of the defence as to where the fight took place by holding as follows-

"On the question of the act of the accused there is evidence which I have already dealt with but which I would like to repeat here for the purpose of record that is, that 3 eye-witnesses (PW1, PW2 and PW3) saw what happened and gave evidence to that effect. The deceased died as a result of head injury-a wound in the scalp. The question now is where did this incident occurred (sic).

Was it in the house of the deceased as alleged by the prosecution witnesses or near a school as alleged by the witnesses for the defence? From what I have record (sic) it appears to me that the disturbance started somewhere but ended in the house of the deceased. This is because the PW2 and the PW3 were already been (sic) informed by some boys that there was a fight going on. It was on this account that PW3 said he proceeded to the house of the PW2 to inform him about it. Although the defence maintained that the crises started near a school and ended there." (parenthesis and emphasis mine).

With regard to the defences of alibi raised by the 1st, 2nd, 5th, 6th and 7th accused persons, that is the appellant excluded, which were not investigated by the police the learned trial Judge held thus-

"I will now examine the evidence of the accused persons. As I have earlier said, the 1st, 2nd, 5th, 6th and 7th accused persons, raised a defence of alibi both at the police station in their statements and also in court. The question now is what is the legal effect of this defence raised before the trial during the police investigation (?). It is well established law that if an accused person sets-up a defence of alibi, the burden of disproving it rests throughout on the prosecution. Fatayi-Williams, J.A. as he then was in Adeyeye & Ors. V. The State, (1968) N.M.L.R. page 48, held inter alia that there is in law no burden of proof on an accused who puts forward an alibi as his defence. Contrary (sic) if he (sic) defence is raised during trial, it is for him to adduce or elect some evidence tending to show this, but he is entitled to be acquitted if on the whole of the evidence the court is in doubt of his guilt. See Gachi & Others 1965 N.M.L.R. 333, Yanor & Others, 1965 N.M.L.R. 337. The statements made by the accused persons i,e. the 1st, 2nd, 5th, 6th and 7th were not disproved by the prosecution and to this end I am bound to believe their statements and to hold that they were not around the scene of crime at the time of the incident...

In respect of the 1st, 2nd, 5th, 6th and 7th accused, I am of the view having regard to their alibi which was not disproved that the prosecution has failed to discharge the onus placed on it and they are accordingly discharged." (italics mine)

Now, with regard to the earlier quotation above, the learned trial Judge by saying "it appears to me that the disturbance started somewhere but ended in the house of the deceased" was in effect saying that he believed both the evidence of the prosecution witnesses (PW1. PW2 and PW3) and the defence witnesses (DW1 and DW2) on the scene or scenes where the fight took place. However, he held a different view on the credibility of the appellant and his witness-DW3 in respect of the defence of alibi raised by the appellant.

This is what he said and I entirely agree with him-

"The position of the 4th accused (appellant) is not the same as other accused persons. This is because he raised the defence during the trial.

Although he called the 3rd defence witness to corroborate his evidence, one wonders why he did not make such statement to the police. In his statement exhibit B4-B5 he told the police that he was in the entourage of the new village head during the turbaning ceremony. According to him, he witnessed what happened, and he was even beaten by the supporters of the old village head. Thus for such an accused person to give contrary evidence and even call a witness to that effect beats my imagination. I regard his defence of alibi as an afterthought. I also reject the evidence of his witness in its entirety. I therefore hold that the prosecution has discharged the onus placed on it respect of this accused...

Thus on the totality of the evidence adduced by the prosecution, and as I earlier said in this judgment, I find as a fact that the 4th accused was among those who committed the offence alleged on the charge. In the circumstance, I find him guilty of culpable homicide punishable with death an offence under section 221(b) of the Penal Code." (italics mine).

Aggrieved by the decision of the learned trial Judge, the appellant appealed to the Court of Appeal. That court found no merit in the appeal. It dismissed it and affirmed the decision of the trial court. A further appeal has been brought before this Court, and a point which was not raised in the Court of Appeal has been raised before us with leave as an additional ground of appeal. In the appellant's brief of argument learned Counsel for the appellant argued thus-

"Five of the accused persons excluding the appellant were discharged and acquitted when the trial judge upheld the defence of alibi. By upholding their defence of alibi the learned trial Judge was in effect holding that PW1, PW2 and PW3 did not see the accused persons in the deceased's compound doing what they testified that they saw them do. In effect, therefore, these witnesses were not telling the truth when they said in court that they saw the 6 accused persons beat the deceased in his compound." (italics mine).

This has brought to the fore the reason for upholding the defence of alibi raised by the 1st, 2nd, 5th, 6th and 7th accused persons. Was it upheld because of technicality or because the evidence of the 1st, 2nd, 5th, 6th and 7th accused persons was on the merit preferred, as more credible, than that of the prosecution witnesses, in particular PW1, PW2 and PW3 who were eye-witnesses? It is very clear from what the learned trial Judge had said in the quotations above, that he did not at any time weigh or evaluate the evidence of the 1st, 2nd, 5th, 6th and 7th accused persons against the evidence of PW1, PW2 and PW3. Even though he said he was "bound to believe their statements and hold that they were not around the scene of crime at the time of the incident", his reason for so holding was not because the prosecution witnesses told lie or were found wanting but because the statements made by the 1st, 2nd 5th, 6th and 7th accused persons were not investigated by the police and therefore "were not disproved by the prosecution."

Until the statements and evidence of the accused persons were evaluated against the testimonies of the prosecution witnesses and the evidence of the former were found more credible than that of the latter. I cannot see how it can be held that the evidence of the prosecution witnesses was unreliable simply because the police failed in their duty to investigate the various defences of alibi raised by the accused persons.

The next point that comes to mind is that at no time did the learned trial Judge say that he disbelieved the prosecution witnesses (PW1, PW2 and PW3). He in fact went on to convict the appellant on the strength of their evidence, which shows that he believed the evidence adduced by the prosecution. How then can the upholding by the learned trial Judge of the defences of alibi set up by the accused persons be construed as to have cast doubt on the credibility of the prosecution witnesses? I am afraid I cannot see the logic in the argument of the learned Counsel for the appellant.

In Obiode & Ors. v. The State, (1970) 1 All NLR 35 a similar argument was canvassed on behalf of the appellants therein and was rejected by this Court. The argument was advanced as quoted on p.38 thereof-

"... Chief Williams, for the appellants, submitted that since the learned trial Judge was satisfied with the defence of alibi put forward by the 5th, 7th and 10th accused persons he could not have been satisfied beyond all reasonable doubt that the appellants participated in the burning and looting which formed the basis of the charge against them. This according to Chief Williams, is because the learned trial Judge, having been satisfied that the 5th accused person was not present and thus rejected his identification by the 3rd and 4th P.W.'s who between them, had also identified the 1st, 2nd, 3rd and 6th accused persons, could not have been satisfied beyond all reasonable doubt as to the participation of these four accused persons. He also submitted that since the 2nd P.W.'s identification of the 7th accused person was not believed, the learned trial Judge could not have been satisfied beyond all reasonable doubt that the 2nd P.W. truthfully identified the 4th accused. It was also contended by learned Counsel that since the identification of the 10th accused by the 1st P.W. did not satisfy the learned trial Judge, this witness's identification of the 1st, 2nd, 4th and 9th accused persons could not have been beyond all reasonable doubt; and indeed to the extent that these witnesses said they saw the seven accused persons participating in the crime, they could not have been speaking the truth." (italics mine)

In rejecting the submissions, Fatayi-Williams, J.S.C. (as he then was) said at p.39-

"In regard to the submissions of the learned Counsel for the appellants, we would like to point out that, since they did not identify any of the three accused persons acquitted by the trial judge, the identification of the 4th, 8th and 9th accused persons by the 6th and 8th P.W's, which the learned trial Judge accepted could not be attacked on that score. Therefore, in so far as these three accused persons are concerned, the contention that the learned trial Judge could not have been satisfied beyond all reasonable doubt cannot, in our view, be sustained.

... With regard to the evidence against the appellants, the learned trial Judge was clearly satisfied, again on the totality of the evidence, that the prosecution had proved its case against them beyond all reasonable doubt...

For these reasons, we are unable to discern any merit in any of the points urged upon us."

On further examination in the present case of the reasons for the discharge of the accused persons on their alibi, I think the learned trial Judge was even in error in not finding them guilty of the offence in the light of the direct and positive eye-witness evidence of the prosecution witnesses, which he believed; despite the failure of the police to investigate their defences of alibi.

It is settled law that the burden of disproving a defence of alibi rests with the prosecution. Where the police failed to investigate a plea of alibi, such failure can cast some doubt on the prosecution's case. This does not, however, mean that the prosecution has to disprove the alibi in a particular way, that is to say by investigation by the police only. The alibi can be pre-empted by the prosecution, in which case evidence such as that of identity can

be given. Where that happens it is a question of weighing the plea of alibi against the evidence called by the prosecution in anticipation of the alibi. I am supported in this view by the following observations of the Federal Supreme Court and this Court. In Cigari Shehu v. J.B. Ogedengbe,5 F.S.C. 266 at p.268 Bairamian, F.J. (as he then was) said-

"The defence of alibi is common and should be anticipated. In this case the prosecution called the Senior Superintendent then in charge of the Nigeria Police at Sokoto, M.A. Smith, who in consequence of complaints, gave some advice to the N.A. Police; ... It has been argued for the appellant that Mr Smith's initial evidence-in-Chief, up to the point where he spoke of the complainant's condition at about 3.30 was irrelevant to the issue (of alibi) and should not have been admitted; or that if admitted it should not have been used to test the credibility of the N.A. Police witnesses called by the defence. That portion of Mr Smith's evidence was admissible ... (it) gave the background of party ferment which supplied the motive of the assault committed by the appellant.

Mr Smith's evidence was relevant, as we have said, and could be used for any proper purpose, including that of testing the credibility of N.A. Police defence witnesses." (italics mine).

In Oluwole Fatoyinbo v. Attorney-General Western Nigeria. (1966) W.N.L.R.4 at p.6, Coker J.S.C. stated-

"... where a defence of alibi is suggested or timorously put forward by an accused person, the onus resting on the prosecution is no more than that of adducing as much evidence as, if accepted, would demolish the suggestion or inference that the accused person was not available at the scene of the crime at the material time and satisfy the Court or jury of the contrary. Admittedly, where such a defence is put forward in such a manner and at such a time as to enjoin on the prosecution the duty of investigating it, a failure to do so may cast some doubts upon the probability of the case for the Prosecution. That does not warrant nor justify the suggestion that the Prosecution specifically has to rebut in a particular way the defence of alibi." (italics mine)

In Njovens & Ors. v. The State, (1973) N.M.L.R. 331 at p.351 Coker, J.S.C. again said-

"There is nothing extraordinary or esoteric in a plea of alibi. Such a plea of alibi postulates that the accused person could have been at the scene of the crime and only inferentially that he was not there. Even if it is the duty of the prosecution to check on a statement of alibi by an accused person and disprove the alibi or attempt to do so, there is no inflexible and/or invariable way of doing this, If the prosecution adduce sufficient and acceptable evidence to fix the person at the scene of crime at the material time, surely his alibi is thereby logically and physically demolished." (italics mine).

Finally in the unreported case of Hemyo Atam & Anor. v. The State, SC. 632/1966 decided on the 11th January, 1967, this Court held-

"Each of the appellants made a statement under caution after his arrest, setting up an alibi. The police officer who took the statements was asked whether he had done anything to check their truth and said that he had not and it was submitted that for this reason justice had been denied to the appellants and there should at least have been a reasonable doubt as to their guilt. There are occasions on which a failure to check an alibi may cast doubt on the reliability of the case for the prosecution, but in a case such as this where the appellants were identified by three eye-witnesses there was a straight issue of credibility and we are not able to say that the judge's findings of facts were unreasonable or cannot be supported having regard to the evidence." (italics mine).

It is very clear from the foregoing that it does not always follow that once the prosecution failed to investigate an alibi, such failure is fatal to the case for the prosecution. The trial judge has a duty, even in the absence of the investigation, to consider the credibility of the evidence adduced by the prosecution vis-a-vis the alibi. In the present case there is already the testimonies of PW1, PW2 and PW3 which showed that all the accused persons including the appellant were present at the scene of the crime and that they participated in its commission. The evidence of those prosecution witnesses could have been properly used in testing the credibility of the defence of alibi set by the accused persons discharged. This however was not done by the learned trial Judge; instead he said he believed the evidence of the discharged accused persons. There is therefore a valid ground on which the belief or finding of the learned trial Judge could be interfered with.

I do not see how the trial judge could have preferred the defences of alibi set up by the discharged accused persons to that of 3 eye-witnesses who positively saw them at the scene committing the crime. The facts of the present case on the issue of alibi are on all fours with those of Hemyo Atam's case (supra). In consistence with the decision in that case, I hold that the discharge of 1st, 2nd, 4th, 6th and 7th accused persons by the learned trial Judge was wrong. It follows, therefore, that there is no doubt whatsoever about the guilt of the accused persons on that score, from which the appellant can benefit. In my opinion, it is a fallacy for the learned Counsel for the appellant to submit that because the defences of alibi set up by 1st, 2nd, 5th, 6th and 7th accused persons were upheld for lack of investigation by the police, the inference to be drawn is that PW1, PW2 and PW3 were unreliable and their evidence against the appellant should have been disbelieved.

The evidence against the appellant as given by the prosecution witnesses was overwhelming and the learned trial Judge was right in convicting him as charged.

The defences of self-defence and provocation cannot avail the appellant because his evidence did not establish any of the defences. If he was not at the scene, as his evidence and that of DW3, whom he called, goes, then he could neither have provoked nor defended himself against the alleged attack by the supporters of the old village head.

For all these reasons, I will dismiss the appeal. Accordingly, the appeal is hereby dismissed and the decision of the Court of Appeal affirming the decision of the trial court is affirmed.

Belgore, JSC. I have read in advance the lead judgment of my learned brother, Nnamani, J.S.C. with which I agree. In all criminal case, for the prosecution to succeed, there must be proof beyond any reasonable doubt and once this type of doubt exists, the benefit of that doubt must be given the accused person. In such a case a verdict of discharge and acquittal must be entered. Onubogu v. The State, (1974) 9 S.C, 1; Okonji v. The State (1987) 1 N.W.L.R. 659. I also allow this appeal and enter a verdict of discharge and acquittal in setting aside the decision of the Court of Appeal which affirmed the conviction and sentence of the trial High Court.

Wali, JSC. I have had a preview of the judgment of my learned brother, Nnamani, J.S.C. and I agree with the reasons he gave for allowing the appeal. His opinions on the issues raised and canvassed in this appeal agree with mine, and for those same reasons so ably set out in the judgment I too will allow and do hereby allow the appeal. The conviction and sentence are set aside and a verdict of acquittal and discharge substituted.

Craig, JSC. I have had a preview of the judgment of my learned brother, Nnamani J.S.C. and I agree with the facts as set out by him. However it is with the greatest regret and diffidence that I find myself unable to agree with the conclusions which he has reached on the question whether on the facts as put in evidence, the appellant was wrongly convicted of the heinous crime (murder) allegedly committed by him.

The accused and five others were at the Kano Assizes charged with culpable homicide and the particulars of the offence were that:

"On or about the 15th day of January, 1983 at Garado Village in Jahun Local Government Area within the Kano Judicial Division did commit culpable homicide punishable with death in that you caused the death of one Abdul Aziz Dantakake by doing an act to wit: beating him with sticks and iron with the knowledge that his death would be the probable consequence of your acts and thereby committed an offence punishable under sec. 221(b) of the Penal Code."

They were arraigned before Fernandez J., and they all pleaded not guilty to the charge.

At the trial, the Prosecution called five witnesses, of these, three were eye witnesses of the killing. The case for the Prosecution was that the six accused were part of a mob which besieged the residence of the deceased, attacked him with cutlasses, cudgels and other dangerous weapons and left him unconscious. He later died in Hospital. The three eye witnesses who saw the incident (1st, 2nd and 3rd P.W.s) were neighbours of the deceased and had watched the attack from the frontage of their own houses which were only a few feet away. The evidence given by each of these witnesses was direct and positive: for example the 1st P.W. Hadiza Garado stated:-

"I am a house wife. I remember 15th January, 1983. On that day I was in our house, I was sitting near a mortar. I saw some people coming into our house. They met one Chiroma Abdulaziz and started beating him inside his house. I saw them beating him with sticks, Knives, axe. The people were six. They (the accused persons) after beating him left the place.

Later the police came from Jahun Police Station. They found Aziz alive. He later died in the Hospital, I did not make any statement to the Police. They left three items behind. These are axes, sticks and a knife.

Cross-examined by Usman:

Six people came into the house. The deceased was sitting in his room at the time the accused persons came in. I was outside near a morter. The deceased was not inside his room. He is (sic) sitting down in front of his room.

Re-examined:

I was about 3 feet away from them."

The evidence of the 2nd and 3rd P.W.s was to a like effect. In the case of the 2nd P.W. he not only saw the accused persons, he identified the weapons used by some of them. His evidence in part was as follows:-

"At this stage, I sighted six people in our compound. I share the same compound with the deceased. One was holding a (sic) axe, the other with a knife and another with a sword. The axe belongs to 4th accused. i.e. the appellant.

The stick belong to 5th accused. The sword belongs to 1st accused. The accused broke the fence and entered the house. I can identify the stick. It was a long stick and it got broken when the accused was beating the deceased. This is the stick-put in and marked Id I ...

I saw the six accused approaching our compound ... They beat the deceased until he was unconscious ..."

The defence of the accused persons was a complete denial of the charge. Five of them set up different alibis. In their statement to the Police, they mentioned that they were elsewhere and not at the scene of the crime. They repeated the same story in their evidence in Court. Unfortunately, the prosecution did not investigate any of these alibis.

In his judgment, the trial Judge held that:

"... In respect of the 1st, 2nd, 5th, 6th and 7th accused. I am of the view that having regard to their alibi which was not disproved, that the prosecution has failed to discharge the onus placed on it, and they are accordingly discharged." (italics mine)

It will be appreciated that the Court discharged the accused persons only on the ground that the prosecution has failed to discharge the onus which lay on it to disprove the defence of alibi, set up by the accused persons. In this respect, one is bound to agree with the learned Judge. The burden lay on the prosecution to prove the whole case against the accused beyond reasonable doubt. This includes even the defence that they were somewhere else when the offence was committed.

See Adeyeye & Ors. v. The State (1968) NMLR 48. In this respect, it must be pointed out that the offence was committed on the 15th January 1983, and although the accused persons made statements to the Police on the 17th October, 1983 the case did not come to trial until 15th July, 1984-about 9 months afterwards.

In spite of that long notice the prosecution had still not investigated the alibi of the accused persons, and the trial Judge was entitled to feel that the prosecution had not discharged the onus which lay on it to prove the guilt of the accused persons beyond reasonable doubt; for, If there be any minute doubt in the mind of the Judge that the accused might have been somewhere else when the offence was committed, then the benefit of that doubt must be resolved in favour of the accused.

It was on this technical point only that the trial Judge proceeded to discharge the 5 accused persons. At that stage, he did not weigh the statements and evidence of the accused persons (in regard to the alibi) with that of eye witnesses who had seen the accused at the scene of the crime. The question of whose evidence to believe did not then arise. The Court discharged the accused only because the prosecution had failed to discharge the burden of proof which lay on them.

I have read the judgment of my learned brother Uwais, J.S.C., and I agree with his views that possibly if the trial judge had made proper use of the evidence of the eye witnesses who positively saw the accused persons at close range at the scene of the crime, he probably would have convicted them.

But, as it is, they have been acquitted (whether rightly or wrongly) albeit on a technical point and there has been no appeal by the State against that acquittal.

I have set out a rather full account of the acquittal of the five accused persons, because the appellant has placed great reliance on it in asking this Court to allow his appeal.

In his own case, when he was apprehended, and invited to make a statement, he did not set up any alibi. Rather he admitted that he was present at the scene of the clash with supporters of the rival group and gave very vivid account of what he did. He said that he too was attacked but he denied killing the deceased. This is part of what he wrote:

"On Saturday 15/1/83 at about 16.00 hours, we the supporters of the newly elected Village head of Garado Mallam Sule Galadima were escorting him from Natuche into Garado ...

As we were almost entering the village at the school ground, the supporters of the old village head ... told us not to enter the village ...

The people were holding sticks ...

The supporters of the old village head attacked us first with their sticks and we the supporters of the new village head retaliated and we started fighting, I was beaten so well that I became unconscious during the fight ... I later understood that one person died and the other died in Hospital ... I do not know who killed them, all I know was they were killed as a result of the fight. That is all I know."

If the appellant had stuck to this story, the Court's verdict would probably have been different. But, at the trial, he gave a different account of the incident. For the first time, he set up a defence of alibi. He said in part:

"I was invited to the ceremony of the new village head but I did not go. I went to my farm to collect some corn. When I was coming back I met people who went for the ceremony coming out of the village. As I was approaching them one of them hit me ..."

Cross-Examined by Adamu: It is true that my statement I made to the Police is not the same as that I made to the Court."

The appellant called a witness to corroborate his alibi, but in his judgment the trial Judge rejected the evidence of alibi as an after thought and found that:

"On a totality of the evidence adduced by the prosecution, and as I have earlier said in this judgment, I find as a fact that the 4th accused was among those who committed the crime alleged on the charge. In the circumstance, I find him guilty of culpable homicide punishable with death ..." (italics is mine)

The appellant was dissatisfied with that judgment and appealed to the Court of Appeal but the appeal was dismissed. He has appealed further to this Court, and the grounds of appeal have been set out in the lead judgment. His main complaint (as argued by Counsel) was that since the Court had discharged the other five accused, who were identified by 3 eye witnesses as some of those who killed the deceased, that acquittal Counsel submitted, was sufficient to cast some doubt on the veracity of the testimony of those three prosecution witnesses.

I have given deep thought to that submission but I am unable to agree with it.

The important thing to note is that in a criminal trial, each accused person places himself at the Bar of the Court, and maintains his individual identity throughout the trial. Thus,

(a)     he personally pleads to the charge

(b)     gives evidence in his own defence and

(c)     calls witnesses in support of the defence which he has built up.

In the end, he would be judged by whatever he has presented to the Court. These basic steps are the inalienable rights of each accused person, and cannot be exercised by any other person on behalf of the accused person entitled to it.

In this way, no other accused person can plead to the charge on behalf of another accused, nor can a co-accused put up a defence for another accused person.

In the instant case, each of five accused persons denied the charge and set up a defence of alibi. That defence was examined by the Court, and accepted. They were eventually discharged on a technicality. In my view, the appellant is not entitled to take advantage of that technicality unless he too had set up the same or similar defence.

The appellant was judged on the case he presented. When the matter was fresh in his mind, he stated that he was part of the supporters of the new Village head which had clashed with supporters of the old head. During the clash, sticks were freely used and people were beaten up: in consequence, two persons died. He did not kill anyone.