KABIRU ABOKI BADA VS PEOPLE OF LAGOS STATE
April 9, 2025THE STATE V SANI IBRAHIM
April 9, 2025Legalpedia Citation: (2019) Legalpedia (CA) 11484
In the Court of Appeal
HOLDEN AT LAGOS
Mon Jan 21, 2019
Suit Number: CA/L/457CA/2016
CORAM
PARTIES
LEKAN ORISAN APPELLANTS
PEOPLE OF LAGOS STATE RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Appellant was charged at the Criminal Division of the Lagos State High Court, along with one Kabiru Abioki Bada who was the 2nd Defendant for the attempted murder of one Shina Ibrahim contrary to Section 320 (1) of the Criminal Code Law of Lagos State Cap 17 Volume 1, Laws of Lagos State, 2003. The prosecution called 9 witnesses in proof of its case. Though the 2nd Defendant pleaded the defence of alibi which was not challenged, the lower court found both Defendants guilty as charged and sentence them each to 10 years’ imprisonment. Dissatisfied with the judgment of the trial court, the 1st Defendant filed a notice appeal before this court contending that the evidence of the prosecution witnesses is full of contradictions, inconsistencies, falsehood and unreliable.
HELD
Appeal Allowed
ISSUES
Whether or not from the totality of the evidence led in this case it can be justifiably concluded that the prosecution has proved its case beyond reasonable doubt warranting the Lower Court to convict and sentence the 1st Appellant. Whether or not the Lower Court has not by the rejection of Police re-investigation report tendered in evidence through PW7 (the investigating Police Officer) prejudiced the presumption of innocence of the 1st Appellant enshrined under Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999. Whether or not from the circumstances of the facts and evidence led in this case, the lower court has not failed to properly and correctly record the totality of the facts contained in the evidence adduced in this case). Whether or not from the evidence led in this case, the ingredients of the offence charged have been established by the Respondent and/or the 1st Appellant has in any way been linked to the commission of those ingredients of the offence charged. Whether or not from the circumstances of the facts and evidence led in this case, the 1st Appellant has not properly raised the defence of alibi to warrant the consideration of the same in the defence of the 1st Appellant by the lower court. Whether or not the Respondent is allowed and/or can competently address the lower court in response to the 1st Appellant’s plea of allocutus. Whether or not the sentence of 10years imposed on the 1st Appellant by the lower court is not harsh and excessive giving the facts and circumstances of this case. Whether or not from the totality of the facts contained in the evidence led in this case, the judgment of the lower court dated 28/5/2014 can in anyway be sustained.
RATIONES DECIDENDI
ISSUES FOR DETERMINATION – WHETHER A COURT CAN FORMULATE ISSUES FOR DETERMINATION
“The law allows a court to formulate issues for determination in a case on appeal but it will be saver for me to adopt the issues for determination distilled from the grounds of appeal as shown in the Appellant’s brief.”
BURDEN OF PROOF- ON WHOM LIES THE BURDEN OF PROOF IN CRIMINAL MATTERS
“The law is settled on this point. It is that, the duty is solely on the shoulder of the prosecution to prove beyond reasonable doubt the guilt of the Defendant in a criminal matter. This burden does not shift. The implication of this is that, the Respondent in this appeal has the duty to prove that the Appellant committed the offence. The Respondent by credible evidence must connect the Appellant to the offence. In Adepoju vs. State (2018) LPELR-44355 (SC), the Supreme Court per Peter-Odili, JSC at pages 27-29 held:
“The two contending positions on either side of the divide have to be viewed within the context of what the law provided. That is to say that in proving the guilt of the accused the onus of proof lies on the party alleging the crime beyond reasonable doubt. See Section 135 of the Evidence Act, 2011 and with particular reference to Subsection (3) which stipulates thus: –
‘(3). If the prosecution proves the commission of crime beyond reasonable doubts, the burden of proving reasonable doubts is shifted on to the defendant.
The Courts have interpreted that provision in a number of judicial authorities which I shall have to call in aid. For example, my learned brother, Rhodes-Vivour, JSC had stated the position to be thus in the case of the State v. John (2013) 12 NWLR (Pt. 1368) 337 at 360 as follows: –
‘Once all the ingredients of an offence have been proved by the prosecution to the satisfaction of the Court, the charge is said to have been proved beyond reasonable doubt and the guilt of the accused person is pronounced by the learned Trial Judge. Indeed, Section 138(1) of the Evidence Act requires crimes to be proved beyond reasonable doubt.
PROOF BEYOND REASONABLE DOUBT – WHAT DOES PROOF BEYOND REASONABLE DOUBT ENTAILS?
“In Miller vs. Minister of Pensions (1947) 2 ALL ER P.372 at 373, Para. H, Lord Denning MR, said that:
‘Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The Law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as leaves only a remote possibility in his favour which can be dismissed with the sentence “of course it is possible but not in the least probable”, the case is proved beyond reasonable doubt, but nothing short of that will suffice.’
It has been reiterated again and again that the said requirement is not tantamount to the prosecution being expected to prove any criminal offence as absolute proof beyond reasonable doubt or proof beyond all shadow of doubt rather what is required is proof beyond reasonable doubt. See Banjo v. The State (2013) 16 NWLR (Pt. 1381) 455 at 468; Akalezi v. State (1993) 2 NWLR (Pt. 273) 1; Oreoluwa Onakoya v. F.R.N. (2002) 11 NWLR (Pt. 779) 595.”
Similarly, in Godwin Ighbele II vs. State NSCQR Vol. 25 (2006) 321, the Supreme Court per Onnoghen, JSC (as he then was) held
“I agree that in a criminal trial, the burden is always on the prosecution to prove the guilt of the accused person beyond all reasonable doubt. Generally speaking, therefore, there is no duty on the accused to prove his innocence.”
PROOF OF CRIMINAL CASE – MODE OF ESTABLISHING A CRIMINAL CASE
“The prosecution in a criminal case can establish its case by direct evidence, circumstantial evidence or confessional statement. Whichever way, the prosecution uses, the burden and standard of prove does not change. In Henry Egbuji vs. State ELC (2014) 1187, it was held:
“It is now settled beyond citing of legal authorities that the burden of proof in criminal cases is strictly on the prosecution and it does not shift from beginning to the end of the trial, see the case of Yongo & Anor vs. C.O. P. (1992) 4 SCNJ 113 where the Supreme Court held as follows:
‘In criminal proceedings the onus is always on the prosecution to establish the guilt of the accused beyond reasonable doubt. The prosecution will readily achieve this result by ensuring that all the necessary and vital ingredient of the charges is proved by evidence.’
The standard of proof is beyond reasonable doubt and this has been established to mean that once the proof drowns the presumption of innocence of the accused, the court is entitled to convict, although there could ‘ exist some doubt but the moment the proof by the prosecution renders the presumption of innocence on the part of the accused useless and pins him down as the owner of the mens rea or the actus rea then the prosecution has proved its case or discharged the burden placed on it by the Evidence Act..”
OFFENCE OF ATTEMPTED MURDER – INGREDIENTS A PROSECUTION MUST PROVE IN AN OFFENCE OF ATTEMPTED MURDER
“The Respondent in the lower court must prove beyond reasonable doubt the ingredient of the offence with which the Appellant is charged. The offence is attempted murder. The ingredients of the offence are:
1.The Appellant had intention to kill.
2.There must be a physical act by the Defendant to commit the complete offence; and
3.The intervention of an act that prevented the commission of the crime.
The Court of Appeal in Essien vs State (2016) LPELR-41179 brought out the ingredients of the offence of attempted murder in these words:
“For the prosecution to succeed in a charge of attempted murder, it must prove beyond reasonable doubt that the steps taken by the accused person must have reached the point where they indicate beyond reasonable doubt what the end to which they were directed. Thus, the accused person must have gone beyond mere preparation for the offence charged. See RUSELL ON CRIME, 10TH EDITION, page 1790. The above is generally referred to as the proximity test.
Among the key ingredients of attempted murder are:
1. The intention of the Appellant to kill;
2. The execution of such intention by some overt act;
3. An intervening act from fulfilling such intention. (Section 4(1) of the Criminal Code Supra).”,
The prosecution must prove that the act of the Appellant has gone beyond preparatory stage and ready for full manifestation of his intention to kill. Such act must have one conclusion which is the completion of the offence. In Ezeuko vs. State ELC (2016) 2162 SC 1, the apex court held:
“Attempt to commit a crime is an inchoate offence, the elements of which are the physical acts of the accused sufficiently proximate to the complete offence with an intent on the part of the accused to commit the complete offence. It is something more than mere preparation to commit the offence.”
The evidence before the court therefore must be beyond mere preparation but must amount to actual execution of the intention to kill”.
OFFENCE OF ATTEMPT TO COMMIT MURDER – SECTION 320 (1) OF THE CRIMINAL CODE LAW, OF OGUN STATE, 2006
“In Akinosi vs. State (2017) LPELR-42384 (CA), this court per Tsammana, JCA at pages 19-24 held:
“Now, the offence of attempt to commit murder has been created by Section 320 (1) of the Criminal Code Law, of Ogun State, 2006 which stipulates as follows:
320. Any person who-
(1) attempts unlawfully to kill another; or
(2) …is guilty of a felony, and is liable to imprisonment for life. –
ATTEMPT TO COMMIT AN OFFENCE –DEFINITION OF ATTEMPT TO COMMIT AN OFFENCE- SECTION 4 OF THE CRIMINAL CODE LAW
“The Criminal Code Law of Ogun State (supra) does not define what attempt to commit murder is. However, Section 4 of the Criminal Code Law (supra) has defined what an attempt to commit an offence is in general terms. That Section defines attempt to commit offences” as follows:
4. When a person, intending to commit an offence, begins to put his intention into execution by means adopted to its fulfilment, and manifests his intention by some overt act, but does not fulfil his intention to such extent as to commit the offence, he is said to attempt to commit the offence.
The said Section (Section 4) of the Law proceeds to stipulate that:
It is immaterial, except so far as regards punishment, whether the offender does all that is necessary on his part for completing the commission of the offence, or whether the complete fulfilment of his intention is prevented by circumstances independent of his will, or whether he desists of his own motion from the further prosecution of his intention.
It is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence.
The same facts may constitute one offence and an attempt to commit another offence”.
His lordship continues in these words:
“Another definition of attempt to commit an offence is that provided by Bryan A Garner in Black’s Law Dictionary (9th Edition) at page 146 where it is stated that:
1. The act or an instance of making an effort to accomplish something, especially without success.
2. an overt act that is done with the intent to commit a crime but that falls short of completing the crime. Attempt is an inchoate offence distinct from the intended crime. Under the Model Penal Code, an attempt includes any act that is a substantial step towards commission of a crime, such as enticing, lying in wait for, or following the intended victim or unlawfully entering a building where a crime is expected to be committed. It would be seen therefore, that attempts to commit an offence, generally consists of the acts or steps taken by the accused in furtherance of an indictable offence or a felony.
ATTEMPT TO COMMIT AN OFFENCE – DEFINITION OF ATTEMPT TO COMMIT AN OFFENCE
“I shall now refer to some few judicial decisions of the Supreme Court, out of many, where attempt to commit an offence has been defined. In the case of Ozigbo v. C.O.P. (1976) All NWLR P.109, Alexander, C.J.N. (of blessed memory) defined attempt to commit an offence in the following words:
To constitute an attempt, the act must be immediately connected with the commission of the particular offence charged and must be something more than mere preparation for the commission of the offence.
In the case of Jegede v. State (2001) 14 NWLR (pt.733) p. 263, Belgore, JSC (as he then was) said:
If a person intends to commit an offence, and in the process of putting his intention into execution by means he has adopted to its fulfilment, and thereby manifests his intention by some overt act, but actually falls short of his intention to commit that offence intended either through an intervening act or involuntary obstruction, is said to commit the attempt of the offence intended”.
Similarly, his Lordship continued thus:
“In the case of Shurumo vs. The State (2010) 19 NWLR (Pt.1226) P.73, Fabiyi, JSC said:
“To constitute an attempt, the act must be immediately connected with the commission of the particular offence charged and must be something more than preparation for the commission of the offence. The mere intention to commit a misdemeanor is not enough. Some act is required. Acts remotely leading towards the commission of the offence are not to be considered as attempt to commit it. But acts immediately connected to it are of moment. The offender must have crossed the Rubicon and burnt his boat. See: R. v. Eagleton Dears 515, 548, 169 E.R 835 per Parke B. See: also Orija v. I.G.P. (1957) NRNLR 189. It literally means that the acts proved against an offender must be such as would show that he had done all he needed to do to complete the act before he was stopped.”
ATTEMPT TO COMMIT AN OFFENCE -TEST FOR DETERMINING WHETHER AN ACT CONSTITUTES AN ATTEMPT TO COMMIT AN OFFENCE
“An attempt to commit an offence is therefore, one which falls short of the commission of the actual offence, but is nonetheless a crime once it is established that the accused person had the guilty mind. Such guilty status of the accused’s mind must be manifest in an overt act done by the accused person towards the commission of the offence. To constitute an attempt to commit an offence, the act of the accused must be immediately connected with the commission of the particular offence charged. In other words, the overt act must however, be something more than a mere preparation for the commission of the offence. The last overt act done by the accused usually supplies the necessary link as to whether an attempt has been made or executed to commit the offence for which the attempt is made. See Jegede v. State (2001) 14 NWLR (pt.733) p.264; Nwankwo v. F.R.N. (2003) 4 NWLR (pt.809) P.1; Ahmed v. The Nigerian Army (2010) LPELR-8969 (CA) per Peter-Odili, JCA (as he then was); Osetola & Anr v. the State (2012) LPELR-9348 (SC) per Rhodes-Vivuor, JSC; Ameh v. The State (1978) 6-7 S.C (Reprint) P. 21 and Amadi v. F.R.N (2008) 12 S.C. (Pt. III) p.55. Thus, in the case of Sanusi v. The State (1993) 4 NWLR (pt. 285) p.99 at 199, it was held that:
“It is the law that in every crime, there is an intention to commit it, secondly, the preparation to commit it and thirdly, the attempt to commit it. If the third stage, the attempt is successful, then the crime is complete. The test of determining whether the acts constitute an attempt or preparation is whether the overt acts already done are such that if the offender changes his mind and does not proceed further in its progress, the acts already done would be completely harmless. But where the thing done is such that if not prevented by an extraneous cause would lead to the commission of the offence, it would amount to an attempt to commit the offence.”
The Supreme Court decision in Jegede vs. State (2001) 7 SC (Pt. 1) 122 is also instructive. The apex court held:
“In Ozigbo v. Commissioner of Police (1976) 1 All NLR 133 at 141 this Court per Alexander CJN declared
“To constitute an attempt the act must be immediately connected with the commission of the particular offence charged and must be something more than mere preparation for the commission of the offence.” See also, Oriji vs. Inspector General of Police (1957) NRNLR 189, where as in Ozigbo R. vs. Eagleton, (1854-1855) Dears, 515, 538, 169 ER 826, 835 was followed.
In Eagleton, Parke, B declared as long ago as 1855 the law on attempt to be this:
“The mere intention to commit a misdemeanour is not criminal. Some act is required, and we do not think that all acts towards committing a misdemeanour are indictable. Acts remotely leading towards the commission of the offence are not to be considered as attempts to commit it, but acts immediately connected with it are; ….” This dictum has been regarded as the correct law on the subject and has been followed ever since by the Courts both in England and in this country.
In Hope v. Brown (1954) 1 WLR 250, Lord Goddard, L.C.J. acknowledged R. v. Eagleton as the locus classicus of what amounts to an attempt. Smith, I. delivering the judgment of the High Court of Northern Nigeria in Orija v. Inspector-General of Police (supra) observed at pages 192-193:
“But it is not necessarily the last act in every case which proves the attempt. All that is required is an act immediately connected with the particular offence which clearly shows that the offender was attempting to commit it. That is what Section 4 of the Criminal Code requires, i.e., an overt act which clearly manifests the intention but which does not amount to its fulfilment. It may be the last of a series of overt acts because up to that point it is not clear whether the offender is attempting to commit the particular offence charged or some other offence. It may be the first act because that act was unequivocally an attempt to commit the particular offence and no other. The test in EAGLETON is applicable to Section 4 of the Criminal Code because it is necessary to ascertain the acts immediately connected with the crime in order to decide which overt act or acts clearly manifest the intention to commit that crime. But a more practical test is that suggested by the learned author of Russell on Crime (10th Ed. P.170): ‘the prosecution must prove that the steps taken by the accused must have reached the point when they indicate beyond reasonable doubt what the end to which they were directed was.” I agree entirely with the above dictum of Smith J.”
PROOF OF THE OFFENCE OF ATTEMPTED MURDER – WHETHER A WEAPON CONSTITUTES PART OF THE INGREDIENTS OF THE OFFENCE OF ATTEMPTED MURDER
“Though the weapon used does not constitute part of the ingredients of the offence of attempted murder but it is not out of place to deduce from the weapon used and the part of the body inflicted with the weapon. It is not sufficient to prove attempted murder by mere evidence that the person was seen with a gun or knife as that alone will amount to preparatory act at best. It is when that intention is put into action that threatens the life of another in such a way that if not for the intervening action of another, the victim would have died that the offence of attempted murder will be said to be complete. The Appellant must be linked to the offence. See Prince Lukman Ajose vs. FRN NCC Vol. 8 2013 page 555 and Ikomi & Ors vs. State (1986) 5 SC 313.”
FINDING OF FACTS – ATTITUDE OF THE APPELLATE COURT ON INTERFERENCE WITH THE FINDING OF FACTS BY THE LOWER COURT
“In doing so, I am cautious of the principle that an appellate court will generally not interfere with the finding of facts by the lower court except if such finding does not conform with the evidence before the court or in legal terms if such finding is perverse. See: Miss Felicia Osagiede vs. Dr. Ghariro & Ors NSCQR vol. 25 (2006) 712.”
CIRCUMSTANTIAL EVIDENCE – WHEN CIRCUMSTANTIAL EVIDENCE CAN GROUND A CONVICTION
“For circumstantial evidence to secure conviction, such evidence must be strong, unequivocal, cogent and compelling leading to an irresistible conclusion that the Defendant committed the offence. See Adepete vs. State (1998) 7 SC (Pt. 1) 117 and Ajaegbo vs. State (2018) LPELR-44531 (SC).”
MATERIAL CONTRADICTIONS IN THE EVIDENCE OF DIRECT WITNESSES – NATURE OF MATERIAL CONTRADICTIONS IN THE EVIDENCE OF DIRECT WITNESSES THAT WOULD BE FATAL TO A PROSECUTION’S CASE
“There are material contradictions in the evidence of the direct witnesses. Such material contradictions are fatal or affect the case of the prosecution. For the contradiction to be fatal it must touch the material part of the prosecution case. It is a contradiction in the evidence that will touch an ingredient of the offence. In Dibie vs. State (2007) 3 SC (Pt. 1) 176, the apex court held:
“A material contradiction must go to a material point in the prosecution’s case, as to create doubt in the case that the appellant is entitled to benefit from. See the case of Ahmed v. The State (2002) FWLR (Pt. 90) 1358 at 1385; (2002) 18 NWLR (Pt. 746) 622.”
Similarly, in Ikemson & Ors vs. State (1989) I SC (Pt. 2) 33, the apex court held:
“when the evidence of witnesses violently contradicts each other, then that is a danger signal. A trial court should not believe contradictory evidence. Contradictory means what is says – contra-dictum-to say the opposite. Contradiction should be on a material issue to amount to material contradiction. Whether it is the 1st, 2nd or 3rd appellants who shot P.W.1 is not material. Whether the P.W.2 was shot on the leg or thigh is again not material. What is material in a charge of armed robbery like the present charge is that the appellants were armed with a gun and that they made use of that gun to facilitate the robbery. The need for explanation as postulated in Onubogu & anor. vs. The State (1974) 9 S.C.1 at P.20 arises only when there are material contradictions.”
EXISTENCE OF DOUBT- MODE OF RESOLUTION OF AN EXISTENCE OF DOUBT IN THE EVIDENCE OF THE PROSECUTION
“The law on doubt created by the evidence of the prosecution is clear. If there is any doubt in a criminal case revealed by evidence of the prosecution, that doubt will be resolved in favour of the accused, in this instance the Defendant/Appellant. See Odogwu vs. State NSCQR Vol. 55 2013 page 309 and Chukwuka Ogudu vs. State NSCQR Vol. 48 page 2011. Once the case of the prosecution has material doubts, it cannot be said that the prosecution has proved its case beyond reasonable doubt.”
PROOF BEYOND REASONABLE DOUBT- CONCEPT OF PROOF BEYOND REASONABLE DOUBT
“I do not feel save to draw the same conclusion reached by the lower court at page 483 of the record that the Respondent has proved beyond reasonable doubt that the Appellant shot the said Shina Ibrahim. While coming to that conclusion, I am cautious of the fact that the standard of prove required is not beyond all shadow of doubt but beyond reasonable doubt. See Oseni vs. State NSCQR Vol. 49 2012 page 1190; Usufu vs. State (2007) 3 NWLR (pt 1020) 94. In Ankpegher vs. State (2018) LPELR-43906 (SC), the Supreme Court per Okoro JSC at pages 10-12 held:
“In all criminal trials, the burden is on the prosecution to establish or prove the essential ingredients of the offence which an accused person is charged with beyond reasonable doubt, and the prosecution will readily achieve this if it can assemble credible, cogent and believable/or reliable evidence against the accused person. Thus, proof beyond reasonable doubt does not mean proof beyond all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence. It does not mean proof beyond all shadow of doubt or proof to the tilt. As was stated by Lord Denning J, in Miller v Minister of Pensions (1947) 2 All ER 372, a case which has been severally relied upon by Courts in Nigeria, it does not mean proof beyond the shadow of doubt. The distinguished and revered jurist observed:
The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong as to leave only a remote possibility in his favour which can be dismissed with one sentence – of course it is possible but not in the least probable the case is proved beyond reasonable doubt.
See also Nwaturuocha vs. The State (2011): 6 NWLR (Pt.1242) 170, Smart vs. The State (2016) 1-2 SC (Pt.11) 41, (2016) 9 NWLR, (Pt.1518) 447, Oseni vs. The State (2012) LPELR-7833 (SC), (2012) 5 NWLR (Pt.1293) 351 Hassan vs. The State (2016) LPELR-42554 (SC).
In The State v. Onyeukwu (2004) 14 NWLR (Pt.813) 340, this Court held that the expression beyond reasonable doubt is a concept founded on reason and rational and critical examination of a state of facts and law rather than in fancied whimsical or capricious and speculative doubt.
From all that has been said above, it has to be noted that there is no burden on the prosecution to prove its case beyond all doubt or to the tilt. It is just to establish the guilt of the accused person by credible, cogent, reliable and believable evidence.”
ISSUES FOR DETERMINATION – DUTY OF A COURT TO ADDRESS ALL ISSUES BEFORE IT
“This seems to put an end to this appeal in favour of the Appellant but as required by law, a court must address all the issues raised by parties or counsel on behalf of parties.”
RIGHT TO FAIR HEARING -FUNDAMENTAL NATURE OF THE RIGHT TO FAIR HEARING
“It is paramount that parties in a case are all given equal opportunity to present their case. This is fundamental. Everyone has rights that should be protected. Indeed, I make bold to say, a Defendant in a criminal charge and in fact a convicted person has rights. Those rights should be protected and defended by a court in the interest of not the person alone but for the wider society. It will however be taking it too far to opine that a court’s discretion to admit or reject a document amounts to denial of fair hearing. This will only amount to denial of fair hearing if the court did not give the other party opportunity to address it on the document.”
DEFENCE OF ALIBI – MEANING OF THE DEFENCE OF ALIBI
“The defence of Alibi is all about the Appellant saying he was somewhere else apart from the scene of crime. It simply means that the defence is announcing that the Defendant was not at the scene of the crime but rather was somewhere else.
DEFENCE OF ALIBI – WHEN WILL THE DEFENCE OF ALIBI AVAIL AN ACCUSED PERSON?
“To succeed in this defence, the Appellant must raise it at the earliest possible opportunity and must give reasonable particulars of where he was at the time and the person with whom he was to enable the police investigate it. The implication of this, is that, if the Appellant did not raise it at the time of investigation but during evidence in court, the defence will not avail him. This is a trite principle of law as it relates to the defence of Alibi. A few case law excursions will be instructive. In Nnami Osuagwu vs. State NSCQR Vol. 53 2013 page 562, the Supreme Court per Rhodes-Vivour, JSC held as follows:
“Alibi means “elsewhere”. When an accused contends that he cannot be guilty of the offence charged because at the time of commission of the offence he was somewhere else raises the defence of alibi or an alibi defence. After a suspect is arrested, police investigation commences with the suspect, He is asked under caution to write a statement. This is the earliest opportunity a suspect has to explain or raise the defence of Alibi. He must state in clear terms, the day time and address of where he was when the Police alleged that he committed the offence.
In court an accused person who sets up the defence of Alibi, evidence led by the accused person must be taken seriously. The onus is not on the accused person to establish alibi to the satisfaction of the court but for the prosecution to disprove it. A plea of Alibi is demolished if the prosecution adduces sufficient and accepted evidence to fix the person at the scene of the crime at the material time.
It is long settled that it is the duty of the appellant putting forward the defence of alibi to adduce evidence to sustain his alibi and this entails calling witnesses to support his case that he was not at the scene of the crime but somewhere else.”
Similarly, in Ogogovie vs. State (2016) LPELR-40501 (SC) per Sanusi, JSC at pages 58-59, the apex court held:
“The word “Alibi” simply means elsewhere. It is the duty of the accused who intends to rely on it as a defence, to furnish the police with sufficient particulars of same. He must state his whereabouts and those persons with him at the material time. It is then, that it is left for the prosecution to disprove same as failure to investigate the Alibi may lead to the acquittal of the accused. See Yanor v. The State (1965) ATMLR 337; Queen v. Turner (1957) WRNLR 34; Bello v. Police (1956) SCNLR 113; Gachi v. State (1973) 1 NLR 331; and Odu & Anor v. The State (2001) 5 SCNJ 115 at 120 or (2001) 10 NWLR (Pt. 772) 668.
In Patrick Njovens & Ors vs. The State, Coker, JSC (of blessed memory) stated as follows on page 401.
” … There is nothing extra ordinary or esoteric in a plea of alibi. Such a plea postulates that the accused person could not have been at the scene of the crime and only inferentially that he was not there. Even if it is the duty of the prosecution to check on a statement of alibi by an accused person and disprove the alibi or attempts to do so, there is no inflexible and/or invariable way of doing this if the prosecution adduces sufficient and accepted evidence of crime at the material time surely his alibi is thereby logically and physically demolished. “
PRESUMPTION OF WITHHOLDING EVIDENCE – SECTION 167 (D) OF THE EVIDENCE ACT 2011
“There is evidence that the Appellant made a statement to the police. This statement was not tendered by the Respondent through PW7 and PW9 who are police officers who investigated the case. The implication in law in line with Section 167 (d) of the Evidence Act 2011 is that the Respondent did not tender the statement because it will be against the case of the Respondent in the lower court. There is a presumption in favour of the Appellant as it will be seen as the Respondent withholding evidence. See, Ewugba vs. State (2017) LPELR-43833 (SC).”
PROOF OF EVIDENCE- WHETHER PROOF OF EVIDENCE IS EVIDENCE
“That statement having not been tendered in court cannot be considered as a document which is before it. See, Godwin Igabele II vs. State NSCQR Vol. 25 (2006) 321. A proof of evidence is not evidence. It is a proof of the evidence that the prosecution intends to call. The prosecution can decide against presenting evidence in its proof in court ready to bear the consequences of such action. The decision is that of the prosecution. The proof only becomes evidence once it is presented to court.”
DEFENCE OF ALIBI- EFFECT OF A SUCCESSFUL DEFENCE OF ALIBI
“A successful defence of alibi will amount to acquittal. See: Ogogovie vs. State (2016) LPELR – 4050 (SC);”
SUSPICION – WHETHER SUSPICION AMOUNTS TO EVIDENCE
“The decisions of courts are not based on sentiment or speculation. It is the law that, suspicion no matter how great will not amount to cogent evidence. See: Idowu vs. State (1998) 9-10 SC; Alor vs. State (1997) 4 NWLR (Pt. 501) 511; Igbikis vs. State (2017) LPELR 41667 (SC).”
CASES CITED
None
STATUTES REFERRED TO
Criminal Code Law of Lagos State|Evidence Act 2011|
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