SUNDAY ODOGUN V. THE STATE

CORAM

Tijjani Abubakar Justice of the Supreme Court of Nigeria

Emmanuel Akomaye Agim Justice of the Supreme Court of Nigeria

Jamilu Yammama Tukur Justice of the Supreme Court of Nigeria

Abubakar Sadiq Umar Justice of the Supreme Court of Nigeria

Mohammed Baba IdrisJ ustice of the Supreme Court of Nigeria

PARTIES

SUNDAY ODOGUN

APPELLANTS 

THE STATE

RESPONDENTS 

AREA(S) OF LAW

CRIMINAL LAW AND PROCEDURE, EVIDENCE, IDENTIFICATION, ALIBI, CONSTITUTIONAL LAW, BURDEN OF PROOF, APPEAL, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The case revolves around an incident that occurred on June 26, 2006, at about 4:55 am at ldominasi along Osogbo/Ilesa Road, where a group of cow-butchers from Akure, Ondo State, on their routine business trip to llesa Ibariba to purchase cattle, were attacked. The convoy of approximately 12 vehicles encountered a roadblock where the road had been completely obstructed with logs of wood. As they attempted to assess the situation, gunshots rang out and the cow dealers realized they were under attack. Armed assailants emerged, forcibly robbing the victims of their money, mobile phones, and other valuables. The robbers, wielding firearms, ordered all victims to lie face-down on the ground.

Two witnesses, PW1 (Wasiu Adewale) and PW4 (Saliu Alade), claimed they were able to identify the Appellant as one of the assailants. PW1 testified that the Appellant escorted him to his vehicle where he retrieved money intended for purchasing cattle. PW1 observed the Appellant’s face clearly with the aid of moonlight, vehicle headlights, and a torchlight held by the Appellant. PW1 noted the Appellant was dressed in khaki trousers of the Mobile Police (MOPOL) and a brown round-neck T-shirt. PW4, who sustained an injury losing his second finger, recounted an interaction with the Appellant who ordered him to take cover under another vehicle to avoid further gunfire.

After the robbers fled, the butchers discovered that one of their colleagues, Karonwi Kazeem, had been brutally murdered. His body bore gruesome injuries, having been slaughtered in a manner similar to livestock. The survivors reported the incident to the police and later participated in an identification parade where PW1 and PW4 positively identified the Appellant as one of the assailants.

The Appellant, a Mobile Police officer, denied involvement in the robbery and claimed he was stationed with his unit at the University of Benin, Benin City, during the incident. The Appellant made three statements to the police (Exhibits B, B1, and B2). In Exhibit B, he did not mention the armed robbery. In Exhibit B1, he stated he could not recall his exact posting on June 26, 2006, but was either in Edo State or on standby duty at the base. In Exhibit B2, he categorically denied involvement but admitted being identified twice during the identification parade.

The Appellant was charged with conspiracy to commit armed robbery, armed robbery, and murder. The trial Court found him guilty on all counts and sentenced him to death by hanging. The Court of Appeal affirmed the conviction, though there was a split decision regarding the sentence. The Appellant then appealed to the Supreme Court.

HELD

1. The appeal was dismissed for lacking merit.

2. The judgment of the Court of Appeal delivered on December 5, 2013, in Appeal No. CA/AK/102C/2012 was affirmed.

3. The commutation of the Appellant’s sentence as made by Justice Sotonye Denton-West (JCA) in the lead judgment of the Court below was set aside, and instead, the statutory sentence prescribed by law, as pronounced by the trial Court, was upheld, to wit: the death penalty.

ISSUES

1. Whether the prosecution had proved the alleged commission of the offences beyond reasonable doubt by proper identification of the Appellant as the offender?

2. Whether the lower Court was right in holding that the learned trial judge, having formulated the issue of alibi and found that the prosecution has failed to disprove same, could go on to resolve the issue of alibi against the Appellant?

3. Whether the lower Court was right in holding that the learned trial judge was right in convicting the Appellant of the offences of robbery and murder when evidence abound on record that there was opportunity of others committing the offence?

4. Whether the lower Court was right in holding that the learned trial judge was right in rejecting the statement of one Sunday Ojeh even though PW5 stated on oath that he took the statement from the said Sunday, and even if the learned trial judge was right, whether he could return the document without marking it rejected and keep it in Court custody?

5. Whether or not the lower Court was right when having realized the inconsistencies and unreliability of the prosecution’s case ought to in desperation to still convict the Appellant?

RATIONES DECIDENDI

BURDEN OF PROOF IN CRIMINAL CASES – STANDARD OF PROOF REQUIRED FROM THE PROSECUTION

In criminal law, the burden of proof rests on the prosecution, which must establish the guilt of the accused beyond reasonable doubt. This standard is essential to secure a valid conviction, ensuring that every material element of the charge is substantiated by credible and cogent evidence. Therefore, the prosecution bears the responsibility of proving all essential ingredients of the alleged offense through direct evidence from witnesses, circumstantial evidence, or admissions and confessions by the accused. Until the prosecution meets this standard of proof, the presumption of innocence guaranteed under Section 36 of the Constitution remains in favour of the defendant.– Per MOHAMMED BABA IDRIS, J.S.C.

IDENTIFICATION EVIDENCE – LEGAL PRINCIPLES GOVERNING IDENTIFICATION EVIDENCE

Identification evidence, as a means of proving criminal liability, is the process of establishing that the Individual charged with an offense is the same person who committed the crime. This is achieved by linking the accused to the offense through various facts and circumstances, including witness testimonies, fingerprints, handwriting analysis, voice recognition, identification parades, and photographic evidence. In criminal proceedings, identification primarily serves to confirm the accused’s Involvement in the alleged crime. It may be direct, where the victim or eyewitnesses recognize and identify the accused, or circumstantial, where evidence Indirectly connects the accused to the offense. The appropriate mode of identification is determined by the specific facts and circumstances of each case. – Per MOHAMMED BABA IDRIS, J.S.C.

CONCURRENT FINDINGS OF FACT – WHEN SUPREME COURT WILL INTERFERE WITH CONCURRENT FINDINGS

It is a well settled principle of law that for this Court to interfere with the concurrent findings of fact made by the lower Courts, the Appellant must demonstrate that such findings are perverse, either because they were not supported by the evidence on record or resulted from the misapplication of legal principles and the Appellant must show that such perversity has occasioned a miscarriage of justice.– Per MOHAMMED BABA IDRIS, J.S.C.

COURTS’ DUTY TO EVALUATE EVIDENCE – ROLE OF TRIAL COURT IN ASSESSING CREDIBILITY OF WITNESSES

It is well-established that the primary duty of a trial Court is to evaluate evidence and assign it appropriate probative value. A trial Court that has the advantage of observing the demeanour of witnesses during their testimonies is entitled to either believe or disbelieve their evidence and an appellate Court, therefore, will not interfere with or usurp this function unless there are compelling reasons to do so. – Per MOHAMMED BABA IDRIS, J.S.C.

DEFENCE OF ALIBI – BURDEN OF INVESTIGATING AND DISPROVING AN ALIBI

When the defence of alibi is raised, the burden of disproving an alibi rest solely on the prosecution, as the accused is under no legal obligation to establish or prove their alibi. However, the police are not required to investigate an alibi that is vague, lacks sufficient particulars or appears inherently unreliable. Where the accused raises the defence of alibi at the earliest opportunity, providing specific details regarding their whereabouts and the persons they were with at the material time, the police have a legal duty to investigate its credibility to either verify or rebut its validity. – Per MOHAMMED BABA IDRIS, J.S.C.

ALIBI – WHEN DEFENCE OF ALIBI BECOMES INEFFECTUAL

It is settled law that the Appellant cannot rely on the defence of alibi when the prosecution has presented credible evidence of recognition or identification that conclusively links the Appellant to the scene of the crime. The defense of alibi is rendered ineffectual when the accused is conclusively linked to the scene of the crime by such evidence, as in the instant case. – Per MOHAMMED BABA IDRIS, J.S.C.

ADMISSIBILITY OF DOCUMENTARY EVIDENCE – GENERAL RULE REQUIRING MAKER TO TENDER DOCUMENT

It is a well-settled principle of law that the maker of a document must tender it in evidence. The law unequivocally states that a person who did not create a document is not competent to testify regarding its contents. Where a party seeks to rely on a document, the proper procedure requires the maker to be called as a witness, as documents produced in evidence during the course of proceedings must be tested in the open Court before the Court can evaluate their probative value and determine their relevance to the issues in dispute. – Per MOHAMMED BABA IDRIS, J.S.C.

PROBATIVE VALUE – RELATIONSHIP BETWEEN PROBATIVE VALUE AND ADMISSIBILITY OF EVIDENCE

The rationale behind this principle of law is that while a maker of a document is in a position to answer question on it, the non-maker of it is not in such a position. In the latter situation, a Court of law will not attach any probative value to the document and a document that a Court does not attach any probative value is as good as the mere paper on which it is made. After all probative value is the root of admissibility of evidence. I should not be understood as saying that documentary evidence cannot be admitted in the absence of its maker. – Per MOHAMMED BABA IDRIS, J.S.C.

PROSECUTION’S DISCRETION IN CALLING WITNESSES – DUTY TO CALL MATERIAL WITNESSES

It is a settled principle of law that the prosecution is required to call all material witnesses necessary to establish its case beyond reasonable doubt. However, there is no legal obligation on the prosecution to call any particular witness unless their testimony is relevant and has a direct bearing on the prosecution’s case. The prosecution is only required to call witnesses essential to discharging its burden of proof. Those whose evidence are not material need not be called.– Per MOHAMMED BABA IDRIS, J.S.C.

CALLING OF WITNESSES BY PROSECUTION – NO OBLIGATION TO CALL A PARTICULAR WITNESS

It is settled that the prosecution is to call all material witnesses to prove its case. But there is no obligation on the prosecution to call a witness unless his testimony has any bearing or relevance to the prosecution’s case. Simply put, the prosecution shall only call witnesses necessary to discharge the burden on it of proving its case. Those witnesses, whose evidence may not be material need not be called. – Per MOHAMMED BABA IDRIS, J.S.C.

DUTY OF DEFENCE TO CALL WITNESSES MATERIAL TO THEIR CASE – NOT THE RESPONSIBILITY OF PROSECUTION

If an accused is strongly of the view that a witness is material to his defence, it is his duty to call him, and not that of the Prosecution. – Per MOHAMMED BABA IDRIS, J.S.C.

PROSECUTION’S DISCRETION – RIGHT TO DETERMINE WITNESSES TO CALL

It does not lie in the mouth of the defence to urge the prosecution to call a particular witness – as there is nothing stopping the accused himself from calling such witness when defence opens. It is the prerogative of the prosecution to call witnesses relevant to its case. It is not incumbent on the prosecution to call every eyewitness to testify to discharge the onus placed on it by law of proving a criminal case beyond reasonable doubt and as a matter of fact, a single witness, who gives cogent eyewitness account of the incident will suffice even in a murder charge. – Per MOHAMMED BABA IDRIS, J.S.C.

CALLING OF IRRELEVANT WITNESSES – WASTE OF JUDICIAL TIME

The law seems to me well settled that the prosecution is required to call all material witnesses necessary to establish its case beyond reasonable doubt, however, there is no legal obligation on the prosecution to call any particular witness unless their testimony is relevant and has a direct bearing on the prosecution case. The prosecution is only required to call witnesses essential to discharging the burden. No more no less. Those whose evidence is considered irrelevant need not to be called. It is a waste of judicial time to call irrelevant or non-essential witnesses. – Per ABUBAKAR SADIQ UMAR, J.S.C.

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria, 1999 (as amended)

2. Evidence Act, 2011 (as amended)

3. Robbery and Firearms (Special Provisions) Act, Cap R11, Laws of the Federation of Nigeria (LFN), 2004

4. Criminal Code, Cap 34, Vol. 11, Laws of Osun State, 2002

CLICK HERE TO READ FULL JUDGMENT