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Does an accused person have right to be present during visit to scene office crime by investigating police officer?


Scale of Justice

CITATION: (2021) LPELR-54794 (CA)

In the Court of Appeal
In the Asaba Judicial Division

Holden at Asaba

Suit No: CA/AS/494C/2018

Before Their Lordships:


PAUL EHIAGHE – Appellant(s)
THE STATE – Respondent(s)


In the early hours of the morning, the victim (PW1) brought out his long bench (from his house) and sat on it. Suddenly a group of people invaded his house, threw him down and assaulted him. They broke his door and packed out his property. They set his house on fire. The Appellant was alleged to be among the assailants. Thus, the Appellant was arrested and charged along with three other persons at the trial Court on seventeen-count information of conspiracy, arson and malicious damage. The Appellant was the 4th Accused person.

At the close of the case of the Respondent, the Accused persons including the Appellant made a no-case submission.

The trial Court in its ruling, discharged the third Accused person in respect of all the counts, discharged the 1st and 2nd Accused persons and the Appellant in counts 3, 5, 6, 7, 8, 10, 11, 12, 13, 14, 15, 16 and 17 and overruled the no-case submission in counts 1, 2, 4 and 9. The remaining Accused persons including the Appellant were called upon to enter a defence in respect of the remaining counts of the information.

At the conclusion of trial, the trial Court found the Appellant guilty for the offences of conspiracy and arson and convicted him accordingly, while he was discharged and acquitted in counts 2 and 4. Thus, the trial Court sentenced the Appellant to five years imprisonment without option of fine in respect of the offence of conspiracy and 10 years imprisonment without option of fine in respect of the offence of arson. Both sentences to run concurrently.

Dissatisfied, the Appellant appealed to the Court of Appeal.

The Court of Appeal determined the appeal on the following issues as follows: 1. Whether the whole processes culminating in the arrest, arraignment, trial, conviction and sentence of the Appellant by the trial Court in counts 1 and 9 constitutes an infringement of his fundamental rights to fair trial guaranteed under the 1999 Constitution of the Federal Republic of Nigeria? 2. Whether the trial Court was right to have relied on the evidence of PW1, which was filled with material contradictions and discrepancies in convicting the Appellant. 3. Whether the trial Court’s failure to consider the defence of the Appellant in this matter in line with the evidence on record occasioned a miscarriage of justice? 4. Whether the conviction/sentence of the Appellant is supported by the evidence on record?”

The learned Appellant’s counsel submitted that the Appellant is guaranteed the right of fair hearing and presumption of innocence. This, he said, is further underscored by the fact that the Police are obliged to ensure proper, conclusive and unbiased investigation of allegations against a suspect. He contended that in criminal trials, the locus criminis is a fact in issue and ought to be proved.

He argued that the failure of the PW5 (the Investigating Police Officer) to visit the scene of the crime with the victim and the Appellant is fatal to the case of the Respondent. He insisted that the Appellant’s right to be present along with others at the scene of the crime was breached. He wondered why the PW5 visited the scene of the crime by “stealth”. Appellant’s counsel argued that the trial Court failed to consider what he called the glaring contradictions in the evidence of PW1 and the documents earlier made by him.

Counsel submitted that the PW1 was the only witness who mentioned the name of the Appellant throughout the trial. That PW1 was not part of the initial complainants who wrote a petition and the Appellant was not named in the petition as a suspect. He argued that the trial Court was in error in holding that the evidence of PW1 fixed the Appellant to the scene of the crime. He placed reliance on EYISI V STATE (2000) 82 LRCN 3071. He mentioned that the trial Court inferred conspiracy from his finding of guilt in the substantive offence and posited that this was untenable. Appellant’s counsel submitted that the trial Court failed to consider the defence of alibi set up by the appellant.

The Respondent’s counsel stated that the PW1 gave uncontradicted evidence establishing the fact that he owns a building at Obi-Anyima Village and also that the Appellant and others set the house ablaze. He submitted that upon arrest and arraignment, the Appellant was given adequate opportunity to defend himself.

Respondent’s counsel set out the ingredients of the offence of arson and submitted that the ingredients of the offence were established by the Respondent. He referred to the evidence of PW1 and contended that his evidence of identification of the Appellant was not shaken in cross-examination. He posited that the evidence of one witness of truth can ground conviction and that there was no contradiction in the evidence of PW1. Counsel argued that the trial Court was right to infer conspiracy from the criminal act of the Appellant and his co-accused persons.

Counsel submitted that the defence of the alibi was raised by the Appellant for the first time in Court and so it could be rightly ignored. He noted that the trial Court nevertheless considered Appellant’s defence of alibi.

The Appellant’s counsel argued that the Court can take judicial notice of the entire record of appeal, including the extra-judicial statement of the PW1 to resolve what he termed as the issue of fraud and other issues touching on the true identity, status and credibility of the extra-judicial statement and oral evidence.

The Court explained that the Constitution of the Federal Republic of Nigeria, 1999, as amended, provides that whenever a person is charged for a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable time by a Court or Tribunal. See Section 36(4) of the Constitution. That the Constitution particularly Section 36(5)-(12) makes elaborate provisions to safeguard the right to fair hearing of a person who is charged with a criminal offence. The Court pointed out that none of the provisions relate to investigation of a crime except Section 36(6) (A) which provides for the right of a person charged with a criminal offence to be informed promptly in the language that he understands and in detail the nature of the offence. Hence, in response to the Appellant’s contention on the right of the Appellant to be present during the visit to the scene of the crime by the Investigating Police Officer, the Court held that the submission is misplaced. That there is no such right known to the Constitution in Nigeria. The Court however mentioned that the necessity of investigation of a crime by the Police before any person is charged to Court for allegedly committing a crime should not be discountenanced. See ONAH V STATE (1985)12 SC 59, 78.

Contrary to the assertion of the Appellant’s counsel that PW5 visited the scene of the crime by stealth, the Court opined that it is not aware of any law which says that an investigator cannot visit the scene of a crime by “stealth”.

The Court stated that the burden to prove the offences rests on the Respondent to prove the guilt of the Accused beyond reasonable doubt. The Court however mentioned that the proof does not mean proof beyond all shadow of doubt. That it simply means such proof as precludes every reasonable proposition except that which it tends to support. See ANKPEGHER V STATE (2018)11 NWLR (PT 1630) 249, 260.

The Court stated that where there is an indictment, as in this instance, containing charges for substantive offence and conspiracy, the proper step for a Court is to first deal with charge for the substantive offence and thereafter proceed to consider whether the charge for conspiracy has been made out. See OKANLAWON V STATE (2015) 17 NWLR (PT 1489) 445, 477.

The Court stated the ingredients of the offence of arson thus: (i)That a building exists (ii) That somebody or group of persons set fire on the building (iii) That the accused person set fire on the building.

From the evidence of PW5 who testified that she visited the scene of the crime where she saw the burnt houses and the pictures of the burnt buildings which were tendered through PW5 as Exhibits C-C8, the Court held that the Respondent proved that the building of PW 1 indeed existed and was burnt.

With regards to whether the Appellant was among the persons who set the building of the PW1 ablaze, the Court cited the case of ABUDU V STATE (1985) 1 NWLR (PT1 )55,61-62 wherein the position of the law was explained that identification evidence should be treated with caution.

The Court referred to the evidence of PW1 and stated that it is clear that it was still dark when the incident occurred hence a contradiction in the evidence of PW1 as to when and how he recognized the assailants.

The Court cited the case of ISIEKWE V STATE (1999) NWLR (PT. 617) 43, 62 wherein it was held that when identification depends on a fleeting glance or a longer observation made in difficult conditions, the Court should direct an acquittal unless there is other evidence which goes to support the correctness of the identification. That however in this instance, outside the evidence of PW1, there is no other evidence to support the recognition of the Appellant by the said witness.

The Court held that the trial Court’s assessment of the evidence of PW1 was perfunctory and superficial. That the trial Court did not examine the evidence of recognition closely enough as required by law.

In response to the contention of the Appellant that his alibi was not considered by the trial Court, the Court defined alibi as to mean “elsewhere”. That the Accused has the duty to raise this defence at the earliest opportunity. See AKINSUWA V STATE (2019) 13 NWLR (PT 1688) 161. The Court held that the Appellant did not comply with the necessary requirements as regards the defence of alibi. That he only set up the defence in his testimony in Court and so his defence of alibi was a non-starter. The Court pointed out that it is however of no moment as the burden did not shift from the Respondent to prove its case beyond reasonable doubt. The Court held that the Respondent failed in discharging the burden and so the conviction of the Appellant for arson cannot stand.

As regards the conviction for conspiracy, the Court held that same cannot stand as it was based on the same facts as the facts upon which the conviction for arson was arrived at. See IKEM V STATE (1985) 4 SC (PT 2) 30, 61 per Karibi-Whyte, JSC, wherein it was held thus: “Having found the appellant not guilty of the substantive offence, he cannot be guilty of the conspiracy to commit the offence with which he has been acquitted.”
On the whole, the appeal was allowed and the judgment of the trial Court was set aside. The Court of Appeal entered a verdict of not guilty for the Appellant and accordingly discharged and acquitted the Appellant in all the counts of the information including the offences for conspiracy and arson.

C. J. ENEGIDE, ESQ. For Appellant(s)

E. E. EREBE, ESQ. For Respondent(s)

(Assistant Director, Ministry of Justice, Delta State)
With him. M. DIBIA, ESQ, Assistant Chief State Counsel

Compiled by LawPavilion

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