Onus is on pros­e­cu­tion to dis­prove an alibi – Ap­peal Court

Daily Trust - - LAW -

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.

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