CORAM

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Muhammed Lawal Shuaibu Justice of the Court of Appeal

Donatus Uwaezuoke Okorowo Justice of the Court of Appeal

Oyejoju Oyebiola Oyewumi Justice of the Court of Appeal

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PARTIES

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MR. MICHAEL ARCHIBONG UDO

APPELLANTS 

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MR. MICHAEL ARCHIBONG UDO

RESPONDENTS 

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AREA(S) OF LAW

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CRIMINAL LAW, MURDER, CONSPIRACY, EVIDENCE, DEFENCE OF ALIBI, CIRCUMSTANTIAL EVIDENCE, BURDEN OF PROOF, REASONABLE DOUBT, CRIMINAL PROCEDURE, APPEAL, PRACTICE AND PROCEDURE

 

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SUMMARY OF FACTS

The Appellant, Michael Archibong Udo, was charged alongside two other defendants before the High Court of Akwa Ibom State for conspiracy and murder under Section 556(1)(F) and 326(1) of the Criminal Code, Cap 38, Vol. 2, Laws of the Akwa Ibom State of Nigeria, 2000. The charges arose from the death of one Grace Okon on 11th May 2006.

During the trial, the prosecution called eight witnesses and tendered documentary exhibits. The prosecution’s case was that the deceased had complained that the defendants, especially the Appellant, had threatened her life. Evidence showed that the deceased and the Appellant had disagreements, including over the killing of fowl and payment of ₦1,000 compensation by the deceased. The deceased had made a statement to the police prior to her death (Exhibit F) detailing these issues.

The Appellant testified in his own defence but called no other witnesses. He raised a defence of alibi, claiming he was not in Akwa Ibom State when the incident occurred but was at “Atinase or Esin Ufot in Cross River State” at the time of the deceased’s death. This alibi was supported by a police investigation report (Exhibit E) which stated that the Appellant should be “applauded for reporting the activities of Emman Boss and his cohorts to the village head” and appeared to exonerate him.

On 9th March 2017, the trial judge delivered judgment finding the Appellant and his co-accused guilty of conspiracy and murder. The trial judge acknowledged there was no direct evidence of conspiracy and murder but relied on circumstantial evidence, stating there was “overwhelming evidence that the 1st, 3rd and 4th accused were not in good terms with the deceased.” The Appellant was the 3rd accused person.

Dissatisfied with the conviction, the Appellant appealed to the Court of Appeal. The Court of Appeal found that the trial court had erred in several respects: (1) the conviction for conspiracy was not supported by any evidence but was based on mere conjecture; (2) the circumstantial evidence was insufficient to support a murder conviction; (3) the trial court wrongly ignored the Appellant’s defence of alibi despite police evidence supporting it.

 

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HELD

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1. The appeal was allowed and the Appellant was discharged and acquitted.

2. The Court held that the conviction for conspiracy was not supported by any evidence but was based on mere conjecture by the trial judge.

3. The Court found that the circumstantial evidence was insufficient to support a murder conviction, as it did not meet the required standard of being cogent, competent, and unequivocal.

4. The Court held that the trial court wrongly ignored the Appellant’s defence of alibi, which was timeously raised and supported by police investigation evidence that appeared to exonerate him.

5. The Court emphasized that the prosecution failed to discharge its burden of proving the essential ingredients of the offences beyond reasonable doubt.

 

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ISSUES

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Appellant’s Issues:

1. Whether the Honorable lower Court was right to have totally ignored the alibi timeously raised by the Appellant and consequently convicted and sentenced the Appellant to imprisonment/death?

2. Whether the judgment of the honorable lower Court is supported by credible evidence on record?

Respondent’s Issue: Whether from the totality of the evidence adduced at the trial, the prosecution has proved the offence of murder beyond reasonable doubt against the Appellant to warrant his conviction and sentence.

 

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RATIONES DECIDENDI

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PROOF OF GUILT BEYOND REASONABLE DOUBT – DISCHARGE OF PROSECUTION’S BURDEN

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The burden of proving the guilt of a defendant for the offence he was charged with beyond reasonable doubt is discharged when the prosecution proves by evidence the ingredient or element of the offences charged. Similarly, the guilt of the defendant is proved, either through an eyewitness account, circumstantial evidence or a confessional statement of the defendant. – Per MUHAMMED LAWAL SHUAIBU, J.C.A.

 

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ESSENTIAL ELEMENTS OF CONSPIRACY – MEETING OF MINDS

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The offense of conspiracy is the agreement of two or more persons to do an unlawful act or to do a lawful act by unlawful means. Proof of conspiracy is often obtained from one of the conspirators or from inferences from certain act or acts of the party or parties concerned in pursuance of an apparent criminal purpose between them. Thus, the essential element of the offence of conspiracy lie in the meeting of the minds of the conspirators to do an unlawful act or to do lawful acts by unlawful means. – Per MUHAMMED LAWAL SHUAIBU, J.C.A.

 

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ESSENTIAL INGREDIENTS OF MURDER

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In proving the offense of murder on the other hand, the prosecution must prove the following essential ingredients: 1. Death of the deceased by a voluntarily act of the defendant. 2. With intent to cause such death or cause grievous bodily harm to the deceased, and 3. That the death of the deceased is a direct result of the act of defendant.– Per MUHAMMED LAWAL SHUAIBU, J.C.A.

 

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REASONABLE DOUBT – RESOLUTION IN FAVOUR OF ACCUSED

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The law is settled that any reasonable doubt created and arising from the case presented by the prosecution against an accused person must be resolved in the accused person’s favor. – Per MUHAMMED LAWAL SHUAIBU, J.C.A.

 

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CIRCUMSTANTIAL EVIDENCE – REQUIREMENT FOR HIGH DEGREE OF PROBABILITY

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Circumstantial evidence in order to furnish a basis for conviction requires high degree of probability that is sufficiently high that a prudent man, considering all the facts that the life or the liberation of an accused depends on the decision, would be justified in holding that the accused committed the crime. In order words, for circumstantial evidence to be relied upon and believed, justifying the inference of guilt by the accused, the inculpatory facts must be incompatible with the accused’s innocence. – Per MUHAMMED LAWAL SHUAIBU, J.C.A.

 

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CIRCUMSTANTIAL EVIDENCE – MUST BE COGENT, COMPETENT AND UNEQUIVOCAL

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Circumstantial evidence sufficient to support conviction must be cogent, competent and unequivocal. It must be compelling and must lead to the irresistible conclusion that the prisoner and no one else is the murderer. Thus, the fact must be incompatible with innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt which is not the case here.– Per MUHAMMED LAWAL SHUAIBU, J.C.A.

 

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DEFENCE OF ALIBI – DEFINITION AND PROSECUTION’S DUTY

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The defense of alibi is based on the physical impossibility of an accused person being guilty, by placing him in another location at the relevant time of the commission of the offense charged. Once properly raised, it is the duty of the police to investigate it and for the prosecution to disprove it. – Per MUHAMMED LAWAL SHUAIBU, J.C.A.

 

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ALIBI INVESTIGATION – REQUIREMENT FOR PRECISION AND SPECIFICITY

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It is settled that to be worthy of investigation, the defense must be precise on specific in terms of where the accused was and the person or persons he was with and possibly what he was doing there at the material time. Furthermore, where there is sufficient evidence to fix an accused at the scene of a crime, there would be no need for the police to embark on the voyage of investigating an alibi. – Per MUHAMMED LAWAL SHUAIBU, J.C.A.

 

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SUCCESSFUL ALIBI DEFENCE – ENTITLEMENT TO ACQUITTAL

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In the absence of superior evidence fixing the Appellant at the scene of the crime, the Appellant is perforce entitled to be acquitted. In all, the prosecution now Respondent having failed to adduce cogent and credible evidence in proof of the essential ingredients of the offences charged, there could never be proof beyond reasonable doubt.– Per MUHAMMED LAWAL SHUAIBU, J.C.A.

 

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ALIBI DEFENCE – BURDEN ON PROSECUTION TO INVESTIGATE AND REBUT

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The Supreme Court held that once an alibi is raised, the burden is on the prosecution to investigate and rebut such evidence; Ani v. State (2009). Failure to investigate an alibi as in this case, can lead to doubts about the prosecution’s case and the acquittal of the accused.– Per DONATUS UWAEZUOKE OKOROWO, J.C.A.

 

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PROSECUTION’S BURDEN – PROVE GUILT BEYOND REASONABLE DOUBT

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This is in view of our system of criminal adjudication which is that the onus is on the prosecution throughout to establish the guilt of the defendant beyond all reasonable doubt. The pivotal question requiring an answer in this case, is can it be said, with any degree of certainty, that the prosecution has discharged its onus of proving the guilt of the Appellant beyond all reasonable doubt requiring a verdict of guilt and conviction? My answer is firmly in the negative.” – Per OYEJOJU OYEBIOLA OYEWUMI, J.C.A.

 

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DEFENCE OF ALIBI – EVIDENTIAL BURDEN ON ACCUSED

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The word ‘alibi’ means elsewhere and since it is a matter peculiarly within the knowledge of an accused person if he was at some particular place other than that where the prosecution says he was at any material time, what has been called the ‘evidential burden’ that is, the burden of adducing or eliciting some evidence tending to show this rests on him. – Per OYEJOJU OYEBIOLA OYEWUMI, J.C.A.

 

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CONVICTION FOR CONSPIRACY – MUST BE BASED ON EVIDENCE NOT CONJECTURE

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What is discernible from the above is that the circumstantial evidence was supportive to the conviction of murder and not the offense of conspiracy charged. This implies that the conviction of the Appellant and the other co-accused for conspiracy was not based on any scintilla of evidence but on mere conjucture by the learned trial Judge.– Per MUHAMMED LAWAL SHUAIBU, J.C.A.

 

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CASES CITED

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STATUTES REFERRED TO

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1. Criminal Code, Cap 38, Vol. 2, Laws of the Akwa Ibom State of Nigeria, 2000

2. Section 556(1)(F) – Conspiracy

3., Section 326(1) – Murder

 

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