AMAECHI NJOKU v. STATE

“My Lords, as it is now well known, alibi is a Latin word, it is a combination of two words “alias” and “ibi” or “ubi’ meaning “other” and “there” or “where” respectively. In English usage, according the Black’s Law Dictionary, the word alibi is defined as “elsewhere”. See Azeez V State (2008) ALL FWLR (PT.424) 1423 at 1447 and Mohammed V The State (2015) ALL FWLR (pt.782) 1658”.

“Thus, where an appellant or accused person raises the defence of alibi, he is in turn saying that he was at another place when the offence was committed and could not possibly to have committed the offence. It is the impossibility of a person being present at two different places at the same time that gives the defense its efficacy provided it is established. See Chukwuma Ezekwe v. The State SCER [2018] SC.73/2013, (2018) LPELR 44392 SC, (2018) 3-4 SC (pt 1) P. 1442; Adekunle v State [1989] 5 NWLR (Pt. 123) 505, 513; Patrick Njovens and Ors v The State [1973] 1 NWLR (sic) 331. See also Obakpolo v. State [1991] 1 SCNJ 9; Attah v State [2010] Vol. 3 (pt. iv) MJSC 139; Njovens v. The State [1973] 5 SC 17; Afolalu v. State [2010] All FWLR (pt.538) 812; Michael Hausa v. The State [1994] 6 NWLR (Pt.350) 281; Peter v. The State [1997] 3 NWLR (Pt.496) 625; Omotola and Ors v. The State (2009) 7 NWLR (pt.1139) 148”. –

“It is a settled principle that the defence or plea of alibi must not only be raised but must be promptly and properly raised by the suspect to warrant any consideration; that is; it must be mentioned at the outset that the relevant time material to the defence of alibi is the exact time offence was committed. See Emenegor v State [2010] ALL FWLR (pt. 511) 884. In the instant case, the record of appeal, pages 256, the appellant raised his defence of alibi at the dock. In fact, it must be part of his statement to the police if he were to make any statement; the reason is that, as soon as this plea is raised and reasonable particulars are given, the police or other law enforcement agent is under a duty to investigate the alibi to ascertain its truth or falsity. The duty of Court to consider the alibi depends on how properly it was raised. If it was raised properly, the Court is under a duty to consider it. It is noteworthy that, the defence of alibi is not meant to be used as ploy to send the police on a wide goose chase or divert attention of the police. Although it is the duty of the Prosecution to check on or investigate a statement of alibi by the accused person and disprove it, there is no inflexible or invariable way of doing this.

“If the Prosecution succeeds in fixing the appellant at the scene of the crime by adducing sufficient acceptable evidence, his alibi is thereby logically and physical demolished and that would be enough to render such plea ineffective as a defence. See Archibong v State [2006] ALL FWLR (pt 323) 1747 at 1785, Sunday v The State (2011) ALL FWLR (pt. 568) 922; Uche V The State [2015] ALL FWLR (pt.796) 431. In other words, where the piece of evidence at the disposal of the Prosecution, either real or circumstantial or both, are so compelling that the accused person could not have been elsewhere than at the scene of the incident, in this circumstance, there is no need for the prosecution to carry on a goose chase investigation, in order to discharge the burden of plea of alibi. See Olaiya V The State [2010] ALL FWLR (pt.514) Above all where the defence of alibi consists of vague accounts which are simply placed before the Courts as make-believe of plea of that defence which are completely devoid of material facts worthy of investigation there would be no need for investigation. See Saka v The State {2006) All FWLR (pt.335) 148,163.-

“In other words, identification evidence is evidence tending to show that a person charged with an offence is the same as the person, who committed the offence. The major dispute in this issue is the fact that he has never met the appellant before, neither does he know the appellant. ?However, the law is clear that, in a situation where the witnesses did not know the accused/appellant before the incident, identification parade becomes necessary and it should be conducted. See Bozin v State [1986] 2 QLRN 69. It is also worth bearing in mind that there are exceptions to this rule. For instance, in the case of Ibrahim v State [1991] 5 SCNJ 129, this Court held that: Where identification parade will not be necessary; I. where by his confession, an accused person identifies himself as the offender, II. where the offender is apprehended at the scene of crime or pursued immediately thereafter and apprehended III. Where the offender is well known to the witness before the incident. IV. Where the circumstances of the case have sufficiently and irresistibly married the offender to the crime and the crime scene. V. Where a clear case of alibi has been put forward by the suspect. VI. Where there are clear and uncontracting eye witnesses account and identification of the person who committed the offence. –

“In all criminal cases, the onus of providing that any person committed a crime or wrongful act squarely lies on the Prosecution generally, except of course in some special cases or circumstances that do not apply to the instant case. The burden of proof does not shift and the standard of proof is proof beyond reasonable doubt. See Oseni V The State [2012] LPELR – 7833 (SC) at PP. 40-42, Paras D-A and Sunday Amala V The State [2004] LPELR 453 (SC) at P. 13, Paras D-E”. –

“My Lords, the superior Courts in England, Nigeria and other Commonwealth jurisdictions are unanimous on the constitutive ingredients of the offence of murder, as could be gleaned from the applicable Code provisions. Thus, in a charge of murder, the prosecution is obliged to prove: (1) that the deceased person died; (2) that his/her death was caused by the accused person; (3) that she/he intended to either kill the victim or cause her/him grievous bodily harm. See Woolmington v. DPP [1935] AC 462; Hyam v. DPP [1974] 2 All ER 41; R v. Hopwood (1913) 8 Cr. App. R. 143, [England]. The Nigerian cases on these ingredients include; Akinsuwa V The State [2019] LPELR – 47621 (SC) (Pp 23-25) Para E, The State V Ali Ahmed (2020) LPELR -49497 (SC) AT P.22, PARA, A-B. Madu v. State [2012] 15 NWLR (pt 1324) 405, 443, citing Durwode v. State [2000] 15 NWLR (pt 691) 467; Idemudia v. State [2001] FWLR (pt 55) 549, 564; [1999] 7 NWLR (pt. 610) 202; Akpan v. State [2001] FWLR (pt 56) 735; [2000] 12 NWLR (pt 682) 607. Elsewhere in the Commonwealth, the Courts have similarly upheld these ingredients. See R. v. Nichols (1958) QWR 46; R v. Hughes (1958) 84 CLR 170; TimbuKolian v. The Queen (1958) 42 A. L. J. R.; R. v. Tralka [1965] Qd. R. 225, [Queensland, Australia]. Others include: Agboola v The State (2013) LPELR 20652 (SC), IDIOK v State (2008) LPELR -1423 (SC) at pp. 8-9. The erudite and distinguished jurist cited, with approval, Ubani and Ors. v. State [2004] FWLR (pt 191) 1533, 1545; [2003] 18 NWLR (pt 851) 224; Godwin Igabeie v. The State [2005] 3 SCM 143, 151; [2006] 6 NWLR (pt 975) 100; AlewoAbogede v. State [1996] 5 NWLR (pt 448) 270. Text writers are also, agreed on this: C. O. Okonkwo, Okonkwo and Naish: Criminal Law in Nigeria (Second Edition) (Ibadan: Spectrum Books Ltd 2009) 209 et seq; A G. Karibi-Whyte, History and Sources of Nigerian Criminal Law (Ibadan; Spectrum Books Ltd, 1988) passim; Archbold’s Pleadings: Evidence and practice in Criminal Cases (Fourth Edition) (London: Sweet and Maxwell, 1979) passsim; K. S. Chukkoi, The Law of Crimes in Nigeria (Zaria: Ahmadu Bello University Press Ltd, 1988); NIALS Laws of Nigeria (Annotated) Criminal Justice Administration Vol. One (Lagos: NIALS, 2008) 685; M. A. Owoade, Law of Homicide in Nigeria (Ife: Obafemi Awolowo University Press, 1990) 16 etseq; O. Olanipekun, “The ‘ActusPeus’ and ‘Mens Rea’ as Basis of Criminal Responsibility”, in The Lawyer Vol. 13 (1983) 50; M. A. Owoade, “Recurrent Problems in the Mens Rea of Murder: New Basis for Solutions”, in The Advocate Vol. 9 (1983/84) 81-89; P. Ocheme, The Nigerian Criminal Law (Kaduna: Liberty Publications Ltd, 2006) 194 et seq; S. A. M. Ekwenze, Nigerian Criminal Law Cases: A Synoptic Guide (Enugu: SNAAP Press Ltd, 2006) 330 et seq. However, the Courts have taken the view that the above ingredients must be co-existent or co-eval; that is, they must be co-incident in the sense that the three conditions must co-exist. The effect is that when one of these Trinitarian ingredients is absent, the prosecution would not have discharged its duty. See Ogba v. State [1992] 2 NWLR [pt 222] 16, 168; Idiok V State (supra) at pages 8-9. –

“The learned appellant’s counsel argued that “the mere presence of the appellant at the crime scene does not, as matter of law render the appellant guilty of the crime. Also, there is no enough evidence that the appellant committed this act. Here, there was the direct evidence of PW1 who, both in his evidence-in-chief and cross-examination maintained that the appellant killed the deceased person in her presence. For example, on page 201-202 of the record where he stated that; … I saw the accused persons beating my elder brother. I looked there to know if I knew any of them but it was just one, I knew in person but other people I knew them by their faces. Counsel for the appellant probably forgot that there are authorities for the view that a “single witness, if believed by the Court, can establish a criminal case even if it is a murder. See Effiong v. State [1998] 8NWLR (pt 562) 362; Akindipe v. State [2012] 16 NWLR (pt 1325) 94, 116, paragraph C. As was held in Ahmed v. State (2001) LPELR-SC.27/2001; [2001] 18 NWLR (pt 746) 622; [2001] 12 SC (pt 1) 135, Adamu v. Kano NA [1965] SCNLR 65; Azu v. State [1993] 6 NWLR (pt 299) 303. –

“True, indeed, scholars have expressed reservation on the propriety of the Courts’ continued espousal of the “reasonable man” or natural consequence” guide in ascertaining intent. See for example, C. O. Okonkwo, Okonkwo and Naish: Criminal Law in Nigeria (Second Edition), ibidem page 55; Glanville Williams, Criminal Law: The General Part, 89-99; 894-896, cited, in C. O. Okonkwo, (‘supra) at page 55; Wootton; Crime and the Criminal Law (London: Hamiyn Lectures, 1963) 33-39. According to Professor C. O. Okonkwo, SAN, Africa’s leading authority on Criminal Law, while this requirement has been abolished in England, it has been rejected in the Australian jurisdiction, see, C. O. Okonkwo, Okonkwo and Naish: Criminal Law in Nigeria (Second Edition), ibidem page 55. This Court still invoked the natural consequence test. According to Katsina-Alu, JSC (as he then was), the law presumes that a man intends the natural and probable consequences of his acts. And the test to be applied in these circumstances is the objective test, namely the test of what a reasonable man would contemplate as the probable result of his acts. See Adamu Garba v. State [1997] 3 SCNJ 68.

“The lower Court dealt with the requirement of burden of proof in Section 138 (1) of the Evidence Act (then applicable to the proceedings), citing Dibie v. State [2004] 14 NWLR (Pt 893) 257, 284, to the effect that the Prosecution is said to have proved its case beyond reasonable doubt when it has proved all the ingredients of the particular offence the accused person is charged with. It maintained that “the prosecution has discharge (sic) the burden of proof upon it by this relevant section of the Evidence Act having established all the elements of the offence of murder which the accused is charged with,” page 201-210 of the record. We agree with this view of the law. It is settled on several authorities that proof beyond reasonable doubt does not mean proof beyond any shadow of doubt. See Aigbadion v. State [2000] 7 NWLR (pt 666) 686; Agbo v. State [2006] 6 NWLR (pt 977) 545; Igabele v. State [2006] 6 NWLR (pt 975) 100; Kim v. State [1992] 4 NWLR (pt 233) 17; Ubani v. State [2003] 18 NWLR (pt 851) 224; Ameh v. State [1978] 6-7 SC 27. –

“When a criminal act is done by several persons in furtherance of the common Intention of all, each of such person is liable for that act in the same manner as if it were done by him alone. See Onoha Nwaii & 4 Ors. V The State (1971) 1 NWLR Pg. 78, Okose V The State (1989) All NLR 170, Sale Eyorokoromo& Anon V. The State (1983) LPELR-1188 (SC). –

“Although it is the duty of the prosecution to check on a statement of alibi by an accused person and disprove the alibi, if the prosecution adduces sufficient and accepted evidence to fix a person at the scene of crime at the material time, his alibi is thereby logically and physically demolished and that would be enough to render such plea ineffective as a defence. In other words, where there is strong and credible evidence which fixed a person at the scene of the crime, his defence of alibi must fail. See Per Kumai Bayang Aka’ahs, JSC in The State V. Usen Okon Ekanem (2016) LPELR-41304(SC) (PP. 10- 11, PARAS. D-A). –