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
MICHAEL ORI Appellant(s)
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?
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.
On the second issue, counsel argued that the High Court was wrong when it held that the defence of alibi did not avail the appellant. Counsel predicated his stance in this regard on the fact that although the appellant raised a defence of alibi at the earliest opportunity, the police did not discharge the burden of investigating the said alibi. Although the prosecution adduced evidence that its witness investigated the appellant’s alibi and found that he did not attend the market on the date of the robbery as he claimed or at all within the week because the said witness did not see what the appellant bought from the market, there is however no evidence on record as to how the alibi was investigated. Counsel argued that considering the fact that the appellant sufficiently raised the defence of alibi which the prosecution did not adduce evidence in disproving the same, the high court ought not to have rejected same. The Court was urged to resolve this issue in favour of the appellant.
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.
On the second issue, the respondent stated that for the appellant to be entitled to the benefit effect of the defence of alibi, same must be raised at the earliest opportunity preferably be in his extra-judicial statement to afford the police an opportunity to investigate it. Such defence of alibi must be unequivocal as to the particulars of the appellant’s whereabouts and those present with him. It is the stance of the respondent that the appellant raised his defence of alibi during his evidence in Court with some particulars that would have, if raised in his extra judicial statement(s) to the police, led the prosecution to investigate the same. In other words, that the defence of alibi was not available to the appellant.
Respondent submitted that the settled position of the law is that it is not enough for an accused to raise the defence of alibi, he must give adequate particulars of his whereabouts at the time of the commission of the offence to assist the police to make a meaningful investigation of the alibi. Therefore, the mere assertion by the Appellant that he was not at the scene is not enough. Respondent urged the Court to resolve the issue in favour of the Respondent.
Resolution of the issues
In resolving the issues, the court agreed with the respondent that the ingredients of the offence of armed robbery are:
(i) that there was a robbery or series of robberies;
(ii) that each of the robbery was an armed robbery; and
(iii) that the accused person was one of the persons that took part in the robbery. The prosecution is enjoined by law to prove each of these elements beyond reasonable doubt to sustain a conviction for the offence of armed robbery. The court cited the cases of BOZIN V. THESTATE (1985) 2 NWLR (Pt. 8) 455; and IKEMSON V. THE STATE (1989) NWLR (Pt.110) 455; PEDRO V. STATE (2018) LPELR-44460 (SC) and GIKI V. STATE (2018) LPELR-43604 (SC).
The court also agreed with the respondent that the guilt of an accused person may be proved by the confessional statement of that accused person, by circumstantial evidence or by the evidence of eye witnesses of the crime. The court defined confessional statement as provided in Section 28 of the Evidence Act, and such a statement is admissible if it is direct and positive and relates to his own acts, knowledge or intention, stating or suggesting the inference that he committed the crime charged, citing the cases of AKPAN V STATE (1992) 7 SCNJ 22 and AZABADA V. THE STATE (2014) LPELR-23017(SC). Where an accused person denies making a confessional statement voluntarily, the Court must conduct a trial within trial to determine whether or not the statement was made voluntarily. If the Court finds it to have been voluntarily made, it is admitted in evidence and marked as exhibit. The cases of GBADAMOSI V. THE STATE (1992) NWLR (Pt. 266) 465 and STATE V. IBRAHIM (2019) LPELR-47548 (SC) were cited in support. However, where the accused simply denies making the statement, it will still be admitted in evidence despite the denial. See the cases of IKEMSON V. THE STATE (supra), AWOPEJU V. THESTATE (2002) 3 MJSC 141 and AMOS V. STATE (2018) LPELR-44694 (SC).
The court considered the plea of non est factum raised by the appellant in respect of his confessional statements and held that it did not avail him because he did not oppose the said statements at the point of their being tendered. The Court therefore held that the high court was right in finding the said statements to be confessional statements. The court noted that the high court did not use the statement of Joseph Anoke, the deceased suspect, to corroborate that of the appellant, but only commented to the effect that the confessional statements of the appellant corroborated that of the said deceased suspect. The reliance by the high Court on the confessional statements to convict the appellant was based on many other facts. Commenting on the defence of alibi as raised by the appellant, the court held that non-investigation of alibi where it was given to the Police at the earliest opportunity by the accused person cannot ipso facto result in the finding of such alibi as established nor have a destructive effect on the case of the prosecution.
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.
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.
P.C. Onuoha For Appellant(s)
Respondent not represented by Counsel.
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