LENEE OKERE v. THE INSPECTOR GENERAL OF POLICE

“The import of Section 167(d) of the Evidence Act, 2011 (as amended) is that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. See Per RHODES-VIVOUR, J.S.C in Simon V. State (2017) LPELR-41988(SC) (P.11, PARAS. E-F). The presumption created is against the withholding of documentary and oral evidence. The presumption applies generally to failure to lead evidence on pleaded facts, and not failure to call a particular witness. See Babuga V. State (1996) 7 NWLR (PT.460) P.279.

Per U. M. A. AJI, J.S.C.

“For the defence of alibi to be worthy of investigation, it must be precise and specific in terms of the place that the Accused was and the person or persons he was with and possibly what he was doing there at the material time. See Shehu V. State (2010) 8 NWLR (PT. 1195) 112, Ochemaje V. State (2008) 15 NWLR (PT. 1109) 57.

Per U. M. A. AJI, J.S.C.

“It is the law that where the presence of an accused is fixed at the scene of the crime, the defence of alibi, no matter how beautifully put up is defeated and needs no investigation. See Njovens V. The State (1973) NSCC 257 at Page 278, Omotola & Anor V. The State (2009) 8 ACLR 29 AT PAGE 144, Per Muhammad, JSC in Ayan V. State (2013) LPELR-20932(SC) (P. 16, PARAS. C-D).

Per U. M. A. AJI, J.S.C.

“Although, the Appellant has accused the Police of not investigating his puerile and vague alibi, it is settled law that where an accused raised a defence that his alibi was not investigated, he can still be convicted if there is stronger and credible evidence before the Court which falsified the alibi. See Per ONU, JSC in Aiguoreghian & Anor V. State (2004) LPELR-270(SC) (PP. 20-21, PARAS. G-C)”.

Per U. M. A. AJI, J.S.C.

“On the offence of murder, which the Appellant is charged with, the prosecution could use any of the under mentioned methods to prove murder: (a) Through evidence of eye witness or witnesses (b) Through voluntary confessional statement of the accused or accused persons, and (c) Through circumstantial evidence. See Agboola V The State (2013) LPELR 20652 (SC). Any of the above mentioned methods could be adopted by the prosecution to establish the offence of murder by proving the under listed ingredients of the offence of murder, namely:- (1) The death of a human being (2) That the death was caused by the act commission of the accused person/and (3) That the act of the accused was done intentionally or with knowledge that death or grievous bodily harm was the probable consequence. See Okeke V The State (1999) 2 NWLR (PT 590) 246 at 273, Per Sanusi, JSC in Akinsuwa V. State (2019) LPELR-47621(SC) (PP. 23-25, PARA. E).

Per U. M. A. AJI, J.S.C.

“It is well established that contradictions which do not affect the substance of the issue to be decided are irrelevant. The contradictions must shown to amount to a substantial disparagement of the witness or witnesses concerned, making it unsafe to rely on such witness or witnesses. See Uwaifo, J.S.C. in Isibor V. State (2002) LPELR-1553(SC) (PP. PARAS. F-A). It is not every contradiction, however minute, that would be sufficient to damnify a witness. The contradiction that would make a Court disbelieve a witness has to be on a material point in the case. The so-called contradictions the Appellant’s learned Counsel is alleging are but discrepancies in the accounts and testimonies of PW1 and PW2 that cannot go to the root of disbelieving that there was murder of the deceased by the Appellant and his team. See also Per Mohammed, JSC in State V. Danjuma (1997) LPELR-3216(SC) (P. 10, PARAS. C-F).

Per U. M. A. AJI, J.S.C.

“My Lords, it has become fashionable for accused persons who have no defence whatsoever to the cases which the Prosecution made against them to conjure the bogus defence of alibi. It would appear that they resort to this disingenuous ploy in the vain hope that, like the magical incantation of open sesame by the fictional Ali Baba and his forty thieves’, such a sham defence could open the doors to their freedom. However, this is not the juridical rationale for the said defence. For the umpteenth time, it ought to be emphasised that, to be entitled to the beneficent effect of the defence of alibi, an accused person must raise it at the earliest opportunity, Hassan v The State [2001] 6 NWLR (pt 709) 286, 305, which would, preferably, be in his extra-judicial statement. This is to offer the Police an opportunity either to confirm or confute its availability to the accused person, Ibrahim v The State [1991] 4 NWLR (pt 186) 399; Nwabueze v The State [1988] 3 NWLR (pt 86); Ikemson v The State [1989] 3 NWLR (pt 110) 455. What is more, the said defence must be unequivocal as to the particulars of his whereabouts and those present with him, Onyegbu v The State [1995] 4 SCNJ 275, 285-286; Ibrahim v State (supra); Balogun v AG, Ogun State [2002] 6 NWLR (pt 763) 512, 535-536; Eke v The State (2011) LPELR- 1133 (SC) 16. It is only where an accused person, such as the appellant, raised the said defence at the earliest opportunity without any ambiguity that a burden is cast on the Prosecution to investigate it, Eyisi v State [2000] 4 NSCQR 60 and to disprove same, Eke v. The State (supra). Failure to investigate the defence of alibi raised in such circumstance will lead to an acquittal, Yanor v The State (1965) ANLR (Reprint) 199; Bello v. Police [1956] SCNLR 113; Odu and Anor v The State [2001] 5 SCNJ 115, 120; [2001] 10 NWLR (pt.772) 668.

Per C. C. NWEZE, J.S.C

“The Appellant claimed that he was elsewhere, and alibi is Latin for “elsewhere”. The defence of alibi is based on the physical impossibility of an Accused being guilty by placing him in another location at the relevant time. It also means – “the fact or state of having been elsewhere when an offence was committed” – see Black’s Law Dictionary, 8th Ed.

Per A. A.AUGIE, J.S.C.

“Once the defence of alibi is properly raised during investigations, it is the duty of the Police to investigate it and for the Prosecution to disprove it. But for the defence of alibi to be worthy of investigation, it must be precise and specific in terms of the place that the Accused was and the person or persons he was with and possibly what he was doing there at the material time – see Shehu V. State (2010) 8 NWLR (Pt. 1195) 112 and Ochemaje V. State (2008) 15 NWLR (Pt. 1109) 57, wherein this Court, per Tobi, JSC expatiated on the issue as follows- It is not the law that the Police should be involved in a wild goose chase for the whereabouts of the Accused person at the time the crime was committed. No. That is not the function or role of the Police. The Accused must give specific particulars of where he was at the time of the material time to enable the Police move straight to that place to carry out the investigation required by law. Investigation is not a necessity if the evidence unequivocally points to the guilt of the accused person, either in the evidence of the witnesses or under cross-examination of the accused or his witness. So, where there is sufficient evidence to fix an Accused Person at the scene of a crime, there would be no need for the Police to embark on the voyage of investigating an alibi – see Adewunmi V. State (2016) 10 NWLR (Pt. 1521) 614, wherein Rhodes-Vivour, JSC, observed that: There would be no need for the Investigating Police Officers to investigate an alibi if there is overwhelming evidence against the Accused Person that he participated in the crime.

Per A. A.AUGIE, J.S.C.