Legalpedia Citation: (2024-03) Legalpedia 57178 (CA)

In the Court of Appeal

Holden At YOLA

Thu Mar 14, 2024

Suit Number: CA/YL/31C/2022

CORAM

Patricia Ajuma Mahmoud Justice of the Court of Appeal

PARTIES

TITUS HARUNA

APPELLANTS

THE STATE

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONSTITUTIONAL LAW, CRIMINAL LAW AND PROCEDURE, EVIDENCE, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

“The Appellant, as the 3rd accused at the trial Court, was charged along with Denis Yohanna Baba Laam, Ishaya Dimas Dillas, and Obadia Mato on 3 counts for Criminal Conspiracy, inciting public disturbance, and Culpable Homicide punishable with death, contrary to Section 97(1), 114, 221(a) of the Penal Code, Laws of Taraba State.

The accused persons and others at large were accused of executing the above-mentioned actions on or about the 23rd day of May 2018 at Patisawa Village, Yorro LGA Taraba State, within the Jalingo Judicial Division. They allegedly mobilized and attacked the settlement, leading to the deaths of Ishaya Ali, Jibrin Barade, Dahiru Umar, Albasu Barade, Mustapha Abubakar, and Hamman-Adamu Abubakar, and destruction of some of the settlements.

The Appellant pleaded not guilty to the charge. He denied being at the scene of the crime and pleaded alibi in the extra-judicial statement credited to him, marked Exhibit DW3E. He raised a defense of alibi when he was arrested, which was not investigated, and he claimed to be the victim of an attack by Fulani herdsmen, landing him in the hospital.

At the end of the trial and consideration of the evidence and addresses of Counsel, the trial Court convicted the Appellant and 2 others for offenses of Criminal Conspiracy, inciting public disturbance, and Culpable Homicide punishable with death, contrary to Section 97(1), 114, 221(a) of the Penal Code, Laws of Taraba State. The Appellant was sentenced to 7 years, one year, and life imprisonments, respectively.

Aggrieved by the decision, the Appellant lodged the instant appeal to this Court.”

HELD

Appeal allowed

ISSUES

1. Whether, based on the totality of evidence before this Court, the Appellant is not availed of the defense of Alibi?
2. Whether the learned trial Judge of the lower Court was correct in holding that the prosecution has sufficiently proved the offenses of criminal conspiracy, culpable homicide not punishable by death, and inciting public disturbance against the Appellant beyond a reasonable doubt?

RATIONES DECIDENDI

ALIBI – WHERE THE DEFENCE OF ALIBI IS RAISED – MEANING OF ALIBI – DUTY OF A PARTY INTENDING TO RELY ON THE DEFENCE OF ALIBI

“Of course, once an accused raises a defense of alibi and presents the facts of where he was at the time of the alleged offense, along with verifiable facts about the place and the possible persons he was with to authenticate his claim, the Prosecution has a duty to investigate the alibi and cannot ignore the defense. It must investigate the claim and satisfy itself as to the truth thereof or otherwise. See Utto Vs The State (2021) LPELR – 56230 (SC), Ikemson & Ors Vs State (1989) LPELR – 1473 (SC), and Adebayo Vs The State (2014) LPELR – 22988 SC.

However, the case remains that the prosecution is not required to embark on a wild goose chase when there is sufficient evidence to fix the accused at the scene of the crime, such that his plea of alibi is only a ploy to distract the prosecution. In the case of Chukwunyere Vs The State (2017) LPELR – 43725 (SC), it was held:

“Simply put, the word alibi means ‘elsewhere.’ Whenever an accused person’s defense to a criminal charge is alibi, he is simply saying that he was at another place at the time material to the charge. The defense is based on the physical impossibility of an accused’s guilt by placing him in a location other than the scene of the crime at the relevant time. See Blacks’ Law Dictionary, 9th Edition, page 84, Shehu v. The State (2010) 8 NWLR (pt. 1195) 112, Olatinwo v. The State (2013) LPELR – 19979 (SC) (2013) 8 NWLR (pt. 1355) 126, Ayan v. The State (2013) LPELR – 20932 (SC), (2013) 15 NWLR (pt. 1376) 34, Idemudia v. The State (2015) LPELR – 24835 (SC), Eyisi & Ors vs. The State (2000) LPELR – 1186 (SC) (2000) 15 NWLR (pt. 691) 555. Whenever an accused person intends to rely on his defense, an alibi, the law is trite that he must raise it at the first possible opportunity in answer to a charge by the police at the investigation stage to enable the truth and falsity of the allegation to be established by the police. The accused must furnish the particulars of his alibi in full details to the police. He would not only furnish his whereabouts at the time material to the commission of the offense, he must also mention those present with him at the address so furnished. See Ozaki & Anor v. The State (1990) LPELR – 2888 (SC), (1990) 1 NWLR (pt. 124) 92. Once a plea of alibi is proved, it serves as a complete exoneration of the accused/appellant from the commission of the alleged crime. See Anselem Agu v. The State (2017) LPELR – 41664 (SC), Adebiyi v. The State (2016) LPELR – 40008 (SC). It must be emphasized that whenever the plea of alibi is raised, the prosecution is under a bounded duty to investigate it. This is because the plea presupposes that the accused not only claims he never committed the offense but that he was not at all at the locus delictis. However, the alibi must be definite as to time, place, and the persons who know about the accused’s whereabouts. It should not just set the police on a wild goose chase. See Chukwu v. The State (1996) LPELR – 856 (SC), (1996) 7 NWLR (pt. 463) 686, Yanor & Anor v. The State (1965) NWLR, 337 at 341 – 342, Abubakar Mohammed v. The State (2015) LPELR -24397 (SC).”

See also Ayinde Vs State (2023) LPELR – 60153 SC:

“In the case of Aiguoreghian v. State (2004) 3 NWLR (pt. 860) 367 at 401, Onu, JSC, speaking for this Court in the lead judgment, restated that:- ‘It is a well-established principle that an alibi means that the accused was somewhere other than where the prosecution alleges he was at the time of the commission of the offense. The defense of alibi, as it were, implies that the accused person was elsewhere at the time when the offense charged was alleged to have been committed in a particular place.’ The Court referred to the earlier decisions in Gachi v. The State (1965) NMLR, 333, Okosun v. A. G., Bendel State(1985) 3 NWLR (pt. 12) 283, and Ikemson v. The State (1989) 3 NWLR (pt. 110)455. The law on the essential requirements for the plea or defense of alibi by an accused person charged with the commission of a criminal offense before a Court of law is firmly settled in our criminal procedure jurisprudence. Some of the requirements are that:

The defense/plea of alibi is primarily based and predicated on and within the personal knowledge of the accused person which he must raise timeously and provide adequate particulars of his whereabouts and with whom he was at the material time by dint of Section 140 of the Evidence Act, 2011 (Section 141 (1) and 142 of the 1990 Act). It is therefore a requirement of the law that an accused person who relies on a plea or defense of alibi bears and has the initial evidential burden of providing the essential particulars and evidence of such a plea or defense on the balance of probabilities in order for the duty of the police or prosecution to investigate it for the purpose of disproving it at the trial Court to arise. See Ifejirika v. State (1999) 3 NWLR (pt. 593) 59 at 78, Eyisi v. The State (2000) 15 NWLR (pt. 691) 555, Tanko v. The State (2009) All FWLR (pt. 456) 1977 at 1999, Gachi v. The State (supra), Galidika v. The State (1972) 2 SC, 21, Peter v. The State (1997) 3 SCNJ, 28, Ndukwe v. The State (2009) 2 – 3 SC 48, Sowemimo v. State (2004) 11 NWLR (pt. 885) 515, Ani v. The State (2003) 11 NWLR (pt. 830) 143.

The prosecution/police has the duty, where the plea or defense of alibi is properly and timeously raised by an accused person, in the course of the investigation of the offense he was charged with, to fully investigate it to be able to disprove it at the trial Court. See Sowemimo v. State (supra), Aiguoreghian v. State (supra), Nsofor v. The State (2002) 10 NWLR (pt. 775) 274, lortim v. State (1997) 2 NWLR (pt. 490) 711.

The accused person has no duty to prove the plea or defense of alibi after properly and timeously raising it in a case. See Arebamen v. State (1972) 7 NSCC, 174, Ikono v. State (1973) 8 NSCC, 352, Okolo v. C. O. P. (1977) NNLR, 1, Ikono v. The State (1973) SC (reprint) 167, (1973) LPELR – 1483 (SC), Nwabueze v. State (1988) 4 NWLR (pt. 86) 18, Aliyu v. State (2007) All FWLR (pt. 388) 1133 at 1144.

Failure to investigate an alibi plea or defense properly raised by an accused person may be fatal to the case of the prosecution for a doubt would be created and the standard of proof beyond reasonable doubt not attained which entitles the accused person to be discharged. See Aiguoreghian v. State (supra), Sowemimo v. State (supra), Nsofor v. State (supra) Dogo v. The State (2001) 2 SCM, 39 at 53, Amodu v. The State (2010) 2 NWLR (pt. 1177)

97 at 81, Ozaki v. The State (1990) 1 NWLR (pt. 124) 92.

Failure to investigate the plea or defense of alibi raised by an accused person may not be fatal to the case of the prosecution if and where there is strong, credible, and compelling evidence fixing him at the scene of the commission of the offense he was charged with at the material time. Tobi, JSC, in the case of Ebri v. The State (2004) All FWLR (pt. 216) 420 at 435, restated the law that: ‘Where the evidence of the prosecution witnesses specifically and unequivocally pins down an accused person to the scene of the crime and says that he committed the offense, failure to investigate the alibi by the police will not result in an acquittal of the accused. In such a situation, the failure to investigate the alibi is not only superfluous but also otiose.’ See also Nwosisi v. State (1976) 6 SC, 109, Okosun v. A. G., Bendel State (1985) 3 NWLR (pt. 12) 283, Odu v. State (2001) 1 SC (pt. II) 30, Eyisi v. State (2000) 12 SC (pt. 1) 24, (2001) 15 NWLR (pt. 691) 555, Archibong v. The State (2006) All FWLR (pt. 323) 1147 at 1184.

A successful plea or defense of alibi completely exculpates the accused person from criminal responsibility or liability as it proves that he was not at the scene of the crime he was charged with at the material time and, therefore, did not commit the crime in question and is entitled in law to be acquitted and discharged. See Amodu v. The State (supra).”

Per OKORO, JSC (Pp. 10-12, paras. B-A) – Per I. G. Mbaba, JCA

ALIBI – THE EFFECT OF A SUCCESSFUL PLEA OF ALIBI

“Failure to investigate the alibi was therefore ominous and fatal to the case of the prosecution. Of course, the Appellant could not have been battling for his life in the Barde Memorial Hospital, Pantisawa, at the time of the alleged gathering of Mumuye Youths in his house and also be with alleged conspirators and rampaging youths simultaneously to commit the alleged offenses. See the case of Archibong Vs The State (2006) ALL FWLR (Pt.323) 1147, Eyisi Vs State (2000) 12 SC (PT.1) 24; (2001) 15 NWLR (Pt.691) 555, where it was held that a successful plea or defense of Alibi completely exculpates the accused person from criminal responsibility or liability. It proves that he was not at the scene of the crime with which he is charged at the material time, and so, ipso facto, did not commit the offense in question, entitling him to be discharged and acquitted. See Ayinde Vs State (2023) LPELR – 60153 (SC).”

Per I. G. Mbaba, JCA

SCENE OF CRIME – WHETHER BEING FOUND AT A CRIME SCENE MAKES ONE IMPLICATED IN A CRIME

“Of course, being found at the scene of a crime does not, without more, amount to implication in the crime. See the case of CHRISTOPHER VS STATE (2023) LPELR – 61563 CA:

“Being found at the scene of a crime does not make one implicated in the crime, without more. See Nwachukwu Vs The State (2014) LPELR – 22531 (CA):

‘It is the law that the fact that somebody was at the scene of a crime does not make him an accomplice or a party to it. In AGBOPA V. STATE (1981) 2 N.C.R 59 AT 66, the Court explained: “Finally, it is my view that apart from being present at the scene as one of the watchmen, there is no evidence against the second appellant that he took part in the killing of the deceased. It has been held in AKANNI V. R (2) that mere presence at the place where a crime is being committed is not sufficient to make a person a party to the offence…”’

Per ABBA AJI, JCA (P. 33, paras. C-E)

See also Asakpa Vs State (2022) LPELR – 58425 (CA): The mere presence of the accused person at the scene of the crime is not conclusive that he committed the offence.”

Per I. G. Mbaba, JCA”

PUNISHMENT – CONDUCT OF COURTS WHERE A STATUTE FIXES MANDATORY PUNISHMENT FOR A CRIME

In the case of The State Vs Wadari (2023) LPELR – 61564 (CA), we held: Where the statute fixes mandatory punishment for offence, the trial Court has no discretion to reduce or increase the sentence.” – Per I. G. Mbaba, JCA

ALIBI – MEANING OF ALIBI

The expression alibi simply means elsewhere. It is a defence based on the physical impossibility of an accused person’s guilt by placing him at a location other than the scene of the crime at the relevant time. See the cases of OCHEMEJE V STATE (2008) 15 NWLR, PT 1109, 57 and OLATINWO V STATE (2013) 8 NWLR PT 1355,126. – Per P. A. Mahmoud, JCA

ALIBI – WHERE THE DEFENCE OF ALIBI IS RAISED

“It was held by the Apex Court in the case of NDUKWE V STATE (2009) 7 NWLR PT 1139, 43 that the failure of the police to investigate the defense of alibi is fatal to the case of the prosecution. This point was re-echoed in the more recent case of the Supreme Court: STATE V ALIYU (2022) LPELR-59477 (SC), when Ogunwumiju, JSC held thus:

“The general position of the law is that where an alibi is not investigated, it goes to the root of the case of the prosecution because doubt is thrown on the identity of the perpetrator of the crime who may not be the Defendant in the dock. See Aliyu v State (2013) LPELR-20748(SC) Pg. 14 -15 para. E, (2013)12 NWLR Pt. 1368 P. 403, Queen v. Turner (1957) WRNLR 34, Bello v. Police (1956) SCNLR 113, Yanor v. The State (1965) NMLR 337, Gachi v. The State (1973) 1 NMLR 331, and Odu & Anor v. The State (2001) 5 SCNJ 115 at 120; (2001) 10 NWLR (Pt.772) 66S.”

Per P. A. Mahmoud, JCA”

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Penal Code, Laws of Taraba State 1997
3. Penal Code Law (Cap 89) Laws of Northern Nigeria 1963 Fourth Edition (1987)
4. Evidence Act, 2011
   

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