Anthony Itu V. The StateFebruary 2, 2016
Nosike Iboji V. The StateFebruary 8, 2016
APPEAL NO: SC.483/2013
Areas Of Law
APPEAL, CRIMINAL LAW, LAW OF EVIDENCE
Summary Of Facts
The Appellant among others were charged with the offences of conspiracy to commit felony, to wit, armed robbery. The prosecution’s case was that at about 1am on December 29,2004, the tenants residing at Folashade’s compound, Owode -Yelwa, Ogun State, were robbed of various items of property, money and others. The robbery was reported to the Police. On January 4, 2005, Isikilu Jimoh, one of the alleged victims, saw the Appellant; the first accused person [Kwame Wisdom] and one other person on their way to a garage on Idiriko Road, also, in Owode. The said victim was able to recognize the Appellant as one of those who robbed their compound. The Victim then raced the Appellant and his company till they got to a Military check point, where the victim narrated the incidence to the Police at the Checkpoint. The Appellant his company made attempt to escape but were arrested and arraigned. The Appellant denied the charge as he set up the defence alibi. In his testimony in Court, the Appellant testified that he was not in Nigeria the day the robbery took place as he claimed to have been in Cotonou, Republic of Benin, where he was residing at the relevant time. The Trial court convicted the appellant and other charge with him and sentenced them to death by hanging. Dissatisfied with the decision of the court, the Appellant appealed to the Court of Appeal where his appealed was dismissed. Hence, he made further appeal to the Supreme Court.
Issues For Determination
Whether the Court of Appeal was right in holding that the trial court rightly discountenanced the plea of alibi raised by the appellant?
CONCURRENT FINDINGS- INSTANCES WHERE THE APPELLATE COURT WILL INTERFERE WITH CONCURRENT FINDINGS OF LOWER COURTS
“As a general rule, this court does not make it a habit of disturbing the concurrent findings of two lower courts, Woluchem v Gudi  5 SC 291, 326; Ike v Ugboaja  6 NWLR (pt. 301) 539, 569; Chinwendu v Mbamali  3-4 SC 31; Enang v Adu  11-12 SC 25, 42; Nwadlke v Ibekwe  4 NWLR (pt. 67) 718; Igwego v Ezeugo  6 NWLR (pt. 249) 561, 576; Lamaiv Orbih  5-7 SC 28.
However, whereas in instant case, there is clear evidence that such concurrent findings are perverse, this court will, readily, interfere, Ogbuv. State  8 NWLR (pt. 295) 255; Igago v State  14 NWLR (pt. 637) 1; Adeyemi v The State  1 NWLR (pt. 170) 679; Adeyeyev The State (2013) LPELR -19913 (SC) 46; AkpabOM State  7 NWLR (pt 359) 635; Ejikemev Okonkwo  8 NWLR (pt 362) 266.” PER. C.C. NWEZE J.S.C.
COURT FINDINGS- WHAT CONSTITUTES PERVERSE FINDINGS OF A COURT?
“For this purpose, a court’s finding is said to be perverse if, inter alia, it took into account certain matters which it ought not to have considered or where it shut its eyes to the obvious or proved facts etc, Baridan v State  1 NWLR (pt 320) 250, 256; Udengwuv Uzuegbu [20031 13 NWLR (pt 836) 136, 152; ALDlagceM Sho,un[ltt] 1 NA’LR (pt 2) 360, 375; Nwosu v Board of Customs and Excise  5 NWLR (pt 93) 225.
In such a case, this court is bound to interfere and set aside such a decision, NEPA v Ososanya  1 SC (pt 1) 159; Newbreed Org Ltd v Erhomonsele  5 NWLR (pt 974) 499.” PER. C.C. NWEZE J.S.C.
DEFENCE OF ALIBI- WHAT THE DEFENCE OF ALIBI CONNOTES
“Suffice it to note that, in a criminal trial, when an accused person raises the said defence [of alibi], his assertion comes to this: he was elsewhere; hence, he could not have been at the scene of the crime at the same time, M. Hor, “Burden of Proof in Criminal Trials,” in 4 S. AC. L. J Part 11, 267, 293.” PER. C.C. NWEZE J.S.C.
DEFENCE OF ALIBI – WHAT THE DEFENCE OF ALIBI SEEKS TO ESTABLISH
“Indeed, its roots, from the Latin etymon, “alius” or “other” and “ibi” or “ubi” that is, “there” or “where,” from whence the English coinage “alibi” derives, exemplifies the character of this defence. It is this etymological derivative that foregrounds the judicial view that, as defence, it [the defence of alibi] seeks to establish that, at all times material to the commission of the offence, the accused person was nowhere near the locus criminis and, ordinarily, therefore, he could not be expected to be involved in the physical execution of the alleged offence, Ebere v State  12 NWLR (pt. 729) 617, 635.” PER. C.C. NWEZE J.S.C.
DEFENCE ALIBI – THE DEFENCE OF ALIBI MUST BE RAISED AT THE EARLIEST OPPORTUNITY
“As this court explained in Tajudeed Iliyasu v State (supra), to be entitled to its beneficent effect, such an accused person must raise it at the earliest opportunity, Hassan v The State  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  4 NWLR (pt. 186) 399; Nwabueze v The State  3 NWLR (pt. 85) 16; Ikemson v The State  3 NWLR (pt. 110) 455.” PER. C.C. NWEZE J.S.C.
DEFENCE ALIBI -IN A DEFENCE OF ALIBI, DETAIL OF THE ACCUSED WHEREABOUT AND THOSE PRESENT WITH HIM MOST BE STATED UNEQUIVOCAL
“Above all, the said defence must be unequivocal as to the particulars of the accused person’s whereabouts and those present with him, Onyegbu v The State  4 SCNJ 275, 285-286; Ibrahim v State (supra); Balogun v AG, Ogun State  6 NWLR (pt. 763) 512, 535-536; Eke v The State (2011) LPELR- 1133 (SC) 16”. PER. C.C. NWEZE J.S.C.
DEFENCE OF ALIBI- EFFECT OF FAILURE TO INVESTIGATE DEFENCE OF ALIBI
“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  SCNLR 113; Odu and Anor v The State  5 SCNJ 115, 120; [2001J 10 NWLR (pt.772) 668.” PER. C.C. NWEZE J.S.C.
IDENTIFICATION PARADE-CIRCUMSTANCES WHERE IDENTIFICATION PARADE WILL BE REQUIRED IN A CRIMINAL TRIAL.
“As this court held in Afolalu v State  16 NWLR (pt. 12:0) 584, 616; Identification parade is not a sine qua non to a conviction for a crime alleged. It is only essential in the following instances:
(a)Where the victim did not know the accused person before and the first acquaintance with him was during the commission of the offence;
(b)Where the victim or witness was confronted by the offender for a very short time and
(c)Where the victim, due to time and circumstances, might not have had the full opportunity of observing the features of the accused [person]
The decisions on this point are, actually, many. Only a handful will be cited here, Ikemsonv State  3 NWLR (pt 110) 455; Okos/v State  1 NWLR (pt 100) 642; Khaleel v State  8 NWLR (pt 516) 237; Otti v State  4 NWLR (pt 290) 675; Eyisi v State  15 NWLR (pt 691) 555; Attahv State  10 NWLR (pt 1201) 190, 225.” PER. C.C. NWEZE J.S.C.
EVIDENCE – ONUS AND STANDARD OF PROOF REQUIRED TO ESTABLISH ALIBI
“After an accused person is arrested he should raise the defence of alibi (if that is his defence) at the earliest opportunity, usually in his statement to the Police. An alibi must be very detailed on the exact whereabouts of the accused person. He could refer to persons that the Police can contact to show that his alibi is true. The onus is thus on the accused person to rely on evidence to support his alibi, and the standard of proof required to establish an alibi is on balance of probabilities.” PER OLABODE RHODES-VIVOUR. J.S.C.
INVESTIGATION ON THE DEFENCE OF ALIBI –INSTANCE WHEN INVESTIGATION OF AN ALIBI WILL BE DISPENSE WITH
“Once an accused person raises the defence of alibi it is the duty of the Police to investigate it to see if it is true. There would be no need to investigate an alibi if there is overwhelming evidence against the accused person. See Osuagwu v State (2013) l-2SC (Pt.) p.37 Ajayi v State (2013) 2- 3 SC (Pt.1) p. 143 Aliyu v State (2013) 6 – 7SC (Pt. IV) pt1. Ozaki v. State (1990) ISC p. 109”.PER OLABODE RHODES-VIVOUR. JSC.
PLEA OF ALIBI- WHETHER PROVE OF ALIBI CAN EXONERATE AN ACCUSED
“A plea of alibi once proved, serves a complete exoneration of the accused/appellant from the commission of the crime alleged.” PER. CLARA .B. OGUNBIYI, J.S.C
DEFENCE OF ALIBI – DEFENCE OF ALIBI ARE TO BE INVESTIGATED NO MATTER HOW SLIGHT.
“The law is well settled that a defence of alibi, no matter how slight should not be discountenanced by a court but should be a subject of investigation; this is more so especially where the robbery took place at night wherein identity of accused could be difficult”. PER. CLARA BATA OGUNBIYI, JSC.
Statute Referred To
Armed Robbery and Firearms (Special Provisions) Act.