Whether failure of police to investigate an alibi is fatal to the prosecution’s case  

Michael Ori v. The State
Citation: (2020) LPELR-49554 (CA)
                     
 In the Court of Appeal
 Owerri Judicial Division holden at Owerri
 
On March 10, 2020
Suit No: CA/OW/188C/2015 
Before Their Lordships:
AYOBODE OLUJIMI LOKULO-SODIPE, JCA
ITA GEORGE MBABA, JCA
IBRAHIM ALI ANDENYANGTSO, JCA
Between 
MICHAEL ORI                                    Appellant(s) 
And 
THE STATE                                        Respondent(s)
 
Lead judgment delivered by Ayobode Olujimi Lokulo-Sodipe, J.C.A
 
Facts of the case
In a charge filed at the High Court of Justice, Owerri Judicial Division, the appellant and three others were charged with the offence of armed robbery contrary to Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap. 398, Laws of Federation of Nigeria 1990. In the particulars of offence, the appellant and the three other accused persons and other still at large, while armed with firearms were alleged to have robbed one John Nwokeocha and his passengers of one Mercedes Benz 911 Lorry with Registration No. AE 281 and money totaling N260, 715.00, on March 17, 1998 at Mgbee along Orlu Urualla-Akaokwa Road in Orlu Judicial Division. The appellant was the 3rd accused person. The charge was read over to the accused persons including the appellant on August 10, 1999, and each of them pleaded not guilty thereto. The prosecution called six witnesses in the proof of its case against the appellant and the other accused persons. The appellant and each of the other accused persons, testified in their own behalf, and called no other witness.

In its judgment, the high court noted that the 1st accused person in the charge before it, namely John Okorie confessed to the crime and that the other accused persons (appellant inclusive) in their evidence denied the charge. After an extensive review of the evidence placed before it, the high court in found the prosecution to have proved its case against the appellant and two of the other accused persons beyond reasonable doubt. The High Court did not find the prosecution to have done this in respect of the 4th accused person. Hence, the high court convicted the appellant and two of the other accused persons of the offence preferred against them and duly sentenced each of the appellant and two of the other accused persons to death as mandated by the law under which they were charged. The 4th accused person having been found not guilty was discharged and acquitted. Being dissatisfied with the judgment of the high court convicting him of the offence of armed robbery and sentencing him to death, the appellant appealed to the Court of Appeal.

Issues for determination
The court determined the appeal on the issues for determination formulated by the respondent as follows: i. Whether the prosecution by admissible evidence proved the offence of armed robbery against the appellant beyond reasonable doubt? ii. Whether the defence of alibi as raised by the appellant during his address in court can be available in law for the benefit of the appellant?

Appellants submission
Arguing the first issue, counsel to the appellant submitted that it was wrong for the high court to have relied on Exhibits “E” and “J”, as well as Exhibits “G, L, M and N”, in convicting him. Counsel argued that firstly, Exhibits “E” and “J” are confessional statements of Joseph Anoke wherein he admitted the offence and implicated the Appellant; while Exhibits “G, L, M, and N” are his 1st, 2nd, 3rd and 4th statements. Counsel submitted that it is trite that where an accused person makes a confessional statement implicating a co-accused, the confession is only evidence against the accused person that made it and not evidence against his co-accused unless such co-accused adopts the confessional statement in question by word or conduct. That if an accused person however goes into the witness box and testifies on oath and repeats what he told the police in his statement, then his sworn evidence becomes evidence in the case for all purposes, even if it is against his co-accused. That in the instant case, the maker of Exhibits “E” and “J” never testified in Court as he died before the commencement of trial. It is the stance of the Appellant that it was therefore an error in law for the trial Court to have convicted him on the statement of another accused person to the Police.
 
Counsel further argued that in his first statement, the accused told the police timeously that he traveled to Lafia in Nasarawa State on the date of the offence i.e. March 17, 1998, and was not a party to the robbery. Aside from this, it was mandatory for the high court to have made a specific finding as to whether a confessional statement was actually made by an accused person before holding that the statement was retracted or before putting them into any use in convicting him. This is because he (appellant) raised the plea of non est factum as he denied ever making Exhibits “L, M and N” and maintained that they were written by the police and brought to him to sign at gun-point. That the high court in the circumstances was under a duty to have made a specific finding as to whether he (appellant) actually made the confessional statements ascribed to him before holding that the said statements were retracted or before putting them into any use in convicting him (appellant). This the high court did not do. Counsel urged the Court to resolve the issue in his favour.

Respondent’s submission
Arguing the 1st issue, respondent submitted that the prosecution proved its case against the appellant beyond reasonable doubt. Respondent argued that, the high court is permitted by law to infer from the facts proved and other facts whatever is necessary to complete the element of guilt or establish innocence, which is what the high court did in the instant case. Hence, that apart from the acceptance of the confessional statements of the appellant, the direct evidence of the PW4, regarding the involvement of the appellant in the crime with which he was charged and which was accepted by the trial Court, justified the adoption by the Court of the involvement of the appellant in the crime. Counsel argued that the facts therein were corroborated by the extra judicial statements of one Joseph Anoke (one of the suspects in the crime who died before arraignment). Posing the question as to the circumstances under which a trial Court can convict an accused based on his confessional statement(s), respondent argued that this can be done upon a free and voluntary confessional statement once it is direct, positive, and satisfactorily proved before the trial Court. Such confessional statement alone is sufficient to sustain conviction, even if there is no corroborative evidence.

In support, the court cited the case of HAUSA V THE STATE (1994) 6 NWLR (Pt. 350) 281 where the Supreme Court held: “It appears to me that none of these issues called for wholesale re-evaluation of the evidence adduced at the trial of the appellant. Although the defence of alibi was not investigated by the police it is clear from the testimonies of P.W.2 and (2020) LPELR-49554(CA) P.W.3 that the appellant was seen and identified as the assailant of the deceased… As both P.W.2 and P.W.3 were believed by the learned trial Judge, the defence of alibi set up by the appellant becomes untenable, even though the police failed to investigate it. The absence of the investigation is not in the circumstances of this case fatal to the case of the prosecution.” See also the cases of Ntam v. State (1968) NMLR 86 and Njovens & Ors. v. State, (1973) 5 S.C. 17 per Coker J.S.C. at page 65.
 
Still commenting on the appellant’s defence of alibi, the court noted that that the appellant failed to call as witness any of the persons he said were with him on the day and time of the armed robbery, neither did he call any of the persons who were with him shortly before his arrest. The court held that that failure was fatal to the defence of alibi raised by the appellant. The court stated that it would have in fact been a perverse finding if the high court had found the appellant to have established his alibi considering the evidence of PW4 where he gave account of how he chased and caught the appellant. The court held that this evidence of PW4, which was unchallenged, fixed the appellant at the scene of the crime, thus demolishing the appellant’s defence of alibi.

Held
In conclusion, the court found no merit in the appeal and dismissed same. The judgment of the high court convicting the appellant of armed robbery and sentencing him to death was affirmed.
 
Appearances:
 
P.C. Onuoha                                       For Appellant(s)
 
Respondent not represented by Counsel.
 
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