Onus is on prosecution to disprove an alibi – Appeal Court

HARUNA TIMOTHY v. PEOPLE OF LAGOS STATE In The Court of Appeal (Lagos Judicial Division) on Friday, the 5th day of June, 2015 Suit No: CA/L/916/2014. Before Their Lordships UZO I. NDUKWE-ANYANWU, Justice, Court of Appeal; CHINWE EUGENIA IYIZOBA, Justice, Court of Appeal; YARGATA BYENCHIT NIMPAR, Justice, Court of Appeal Between HARUNA TIMOTHY - Appellants And PEOPLE OF LAGOS STATE - Respondents

UZO I. NDUKWEANYANWU, J.C.A. (delivering the leading judgment): This is an appeal against the judgment of the High Court of Lagos State by Hon. Justice O.A. William delivered on 17th day of April, 2014. The appellant was charged on a one count charge of Armed Robbery contrary to Section 402(2) (a) of the Criminal Code Law, Cap C17 Vol. 2, Laws of Lagos State 2003. The appellant pleaded “not guilty”. The State, in proof of its case, called four witnesses and tendered seven exhibits. In defence of the charge, the appellant also called four witnesses (himself inclusive) and tendered two exhibits. At the end of the trial, the learned trial judge delivered its considered judgment, convicted and sentenced the appellant to death for the offence of Armed Robbery.

Being dissatisfied, the appellant filed a Notice of Appeal with seven (7) grounds. The appellant also filed his appellant’s brief on 21st day of November, 2014. In it, the appellant articulated three (3) issues for determination. They are as follows:1. Having regard to the fact that the appellant’s defence of alibi was not investigated by the respondent and the lower court’s finding that the appellant was not arrested at the scene of crime, whether the lower court was right to have convicted the appellant of the crime of armed robbery - Grounds 1 and 2. Given the fact that Nigeria’s criminal justice system is accusatorial and the finding of the lower court to the effect that the appellant (as the accused) has the burden of adducing evidence to prove his alibi, whether the lower court was not wrong in finding the appellant guilty and convicting him of the crime of Armed Robbery - Ground 3.

3. Considering the position of the law on the failure to conduct an identification parade where same is necessary in a criminal trial; the fact that the respondent did not conduct an identification parade during the investigation of the crime of armed robbery for which the appellant was convicted and wrongful reliance by the lower court on evidence not properly before it, whether the lower court was not wrong in holding that the charge was proved. - Ground 4, 6 and 7.

I will adopt the issues raised by the appellant in the determination of this appeal. Appellant’s Issue 1 and 2 on alibi will be treated together as Issue 1 and the issues on identification will be treated as Issue 2.

The appellant was charged on a one count charge of armed robbery. The offence of robbery with firearms is committed when, at the time of the commission of the robbery, the accused is proved to be armed with firearms as an offensive weapon. See Michael vs. State (2002) 1 NWLR Pt.749 pg.500. To secure a conviction Armed Robbery, prosecution must

the following:a. that there was armed robbery; b. that the accused was armed; and

c. that the accused, while with arm or arms participated in the robbery.

Once the prosecution proved the above ingredients beyond reasonable doubt, failure to tender the offensive weapon cannot result in the acquittal of the accused persons because of the possibility of the accused person doing away with the offensive weapon after the commission of the offence in order to exculpate himself from criminal liability or responsibility Olayinka vs. State (2007) 9 NWLR Pt.1040 pg. 561; Okosi vs. Attorney General, Bendel State (1989) 1 NWLR pt.100 pg.642; Martins vs. State (1997) 1 NWLR Pt.481 pg.355.

The appellant, as accused in the lower court, raised a defence of alibi during his trial. The court in such circumstances is under a duty to consider any defence open to an accused or raised by an accused before conviction on a particular charge, see Ifejirika vs. State (1999) 3 for the prove

an NWLR Pt.593 pg. 59, Lado vs. State (1999) 9 NWLR pt.619 pg.369, Ihaebeka vs. The State (2000) 4 SC pt.1 pg.203, Oforlete vs. The State (2000) 7 SC pt.1 pg.80, Arabi vs. The State (2001) 12 NWLR pg.158.

Alibi is a defence which seeks to persuade the court that the accused could not possibly be at the scene of the crime as he was somewhere else where most probably, there were people who could testify that at the time of the alleged incident or act, he was not at the scene of the crime. Sowemimo vs. State (2004) 11 NWLR Pt.885 pg.515.

In raising the defence of alibi, the accused must, at the earliest opportunity, furnish the Police with full details of the alibi, to enable the police to check the details. Failure of the accused to furnish particulars of the alibi, weakens the defence. See Sowemimo vs. State (supra).

The appellant in this appeal made two (2) statements to the police, Exhibit P4 and Exhibit P5.

Exhibit P4 was written by the appellant himself, therein he said he was at home. This was his first statement made after he was arrested for the first time. He escaped from the police the very next day. When he was re-arrested about Six (6) weeks later, he made the 2nd statement Exhibit P5 therein; he made a confessional statement which he rescinded during trial.

It was only in P4 that the appellant stated that he was at home at the time of the robbery. The appellant did not give sufficient particulars for the police to investigate the Alibi before he escaped from custody. It is not enough for an accused to raise the defence of alibi at large. 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, see Nsofor vs. State (2002) 10 NWLR pt.775 pg. 274, Balogun vs. Attorney General Ogun State (2002) 6 NWLR pt.763 pg.512.

An accused person is not required to prove his alibi, rather, the Onus is on the prosecution to disprove the alibi. Consequently once there is the slightest defence of alibi; the plea ought to be investigated. Failure of the prosecution, therefore, to investigate the alibi raised is fatal to the prosecution’s case Sowemimo vs. The State (supra), Aiguoreghian vs. State (2004) 11 NWLR pt.860 pg.367, Nsofor vs. State (supra).

The prosecution in this Appeal pinned the appellant to the scene of crime. The prosecution led evidence to show that the appellant and his two (2) colleagues now at large, confronted PW1, PW2 and PW3 twice as they were towing their vehicle to their destination. In those two incidents, they spent several minutes with the PWs. The PWs were able to identify him positively at an identity parade conducted by the Nigeria Navy.

The appellant and his colleagues gave one of the PWs his phone number which the police used to hunt down the appellant. The appellant was lured to Mr. Biggs in Alakija by a female Police officer where he was arrested.

The prosecution also led evidence, that the PWs positively identified the Nigeria Navy vehicle that was used by the appellant and his two accomplices in the armed robbery. The two accomplices who were also in the Nigeria Navy are now still at large. They quickly left the Nigeria Navy when it was obvious that the police and the Nigeria Navy were closing in on them. Furthermore, the PWs identified the two other accomplices with their passport photographs.

The appellant did not file adequate particulars of his Alibi even though DW1 and DW4 claimed they were with him. However, DW1 said he was not with him throughout the whole day of the robbery.