IN THE HIGH COURT OF IMO STATE OF NIGERIA
IN THE MBAISE JUDICIAL DIVISION
HOLDEN AT AHIAZU MBAISE
TUESDAY 10TH DECEMBER, 2019
BEFORE HIS LORDSHIP: – HON. JUSTICE I.M.NJAKA.
Charge No: HAM/57C/2018
THE STATE
VS
IZUCHUKWU ONUOHA
JUDGMENT
By the information filed on 04-7-18 the Accused was charged as follows:
STATEMENT OF OFFENCE:
Armed Robbery Contrary to Section 6 (b) and punishable under Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act Cap R 11 Laws of Federation of Nigeria 2004 as applicable in Imo State of Nigeria.
PARTICULARS OF OFFENCE:
IZUCHUKWU ONUOHA arid two others at large on the 22nd day of
September 2017 along Orie Ihitte Road, Ezinihitte Mbaise in Ahiazu Mbaise Judicial Division while armed with locally made short guns robbed one Donatus Njoku and dispossessed him of his 150 model blue Daylong Motorcycle with Reg. No. UML 560 QF with the remote control valued N95, 000 (Ninety Five Thousand Naira
In other to prove its case the Prosecution enlisted four witnesses and in defence, the Accused enlisted two witnesses including himself.
PROSECUTION’S CASE
The nominal complainant- Donatus Tochukwu Njoku testified as PW1. He lives at Umuhu Okwuoato Aboh Mbiase. A motorcyclist- okadaman. On 22-9-17 there was a woman selling bread at Ahiara Junction but they came from Okpofe at Ezinihite LGA. The woman, her husband is also okada rider but whenever she closes market at Ahiara Junction he is the one that usually takes her on his motorcycle home to Okpofe Ezinihitte Mbaise. The woman name is Mrs Chilaka Chinyere. This 22-9-17 was a Friday. He was carrying the woman home around 9pm when she closed. When they got to Oparachi Ihitte his machine failed or broke down. Suddenly there was a motorcycle that passed them and he saw the Accused sitting on the motorcycle. He was the owner of the Motorcycle. He was being carried and sitting at the end. When they passed them, the woman and her children, two little kids pushed the motorcycle for him and the motorcycle started or picked up. So they moved. But he did not know that the boys did not continue but were waiting for them at Orie Ihitte Market. As they were descending the hill a motor cycle was horning at them at the back ‘Pie pie pie’. So he cleared for them to pass. Instead of passing them, they double crossed him and with his light- headlight which is a halogen light he saw the Accused he was holding a shot gun.
When he saw the gun he did not put off the motor cycle and jumped off the Motorcycle and ran into the darkness. He does not have torchlight. He was demanding for the remote control of the motorcycle. One of the boys left with the motorcycle while the other one was sitting on his motorcycle waiting for him to come back. When he looked back and saw that his (PW1’s) motorcycle was no longer there he stopped pursuing him (PW1). The Accused came back to where his motorcycle was standing and released a bullet and they all left. The woman he was carrying told him that the boy’s face was familiar. That it appeared she knows the boy. He said yes he knows the boy too. They use to call him Kiloshe. He told the woman he was carrying not to worry. He knows the boy. He will get him. So they left. He trekked to his house.
Due to the pains he had he did not wake up throughout the Saturday morning. Sunday morning, he went to the woman’s husband. He met him. The man told him that his wife told him what happened. And he said yes that was what happened that night. And the husband of the woman asked him what he said they call that boy. He told him they use to call him Kiloshe. He used to wear ring. He used to paint his eyes and plait his hair. They were many when he was describing him to them. And they said yes they have heard such stories about him snatching motorcycle. He told them that his problem is to know his real name. They told him his real name is Izuchukwuu Onuoha. He wanted to go there with violence but they advised him to go and report to the Police. He should not take the law into his hands. The boy and his father are troublesome.
On 25-9-17 being Monday, he went to the Police at Ezinihite Police Station Itu and made entry. One of the Policemen when he mentioned the name Kiloshe said that the boy is an expert in snatching people’s motorcycle. The Police men advised him not to go to his house but he should go to his (PW1’s) house. They know where they will catch him. When they catch the Accused they will call him (PW1). He waited for the Police for 2 days. He did not get a reply from them. He now decided to go himself to their house. That was on 27 -9-17. It was a Wednesday, Nkwo Mbaise Market day. He went with one Okada boy he met at Ahiara Junction. He explained to him what he has been through and he accompanied him to the boy’s house. He was washing cloth. He was not wearing any cloth on his body but wearing a short. He called him Kiloshe, he answered and greeted him. He asked him if he knows him. He looked at him and looked at him and said his face is confusing him (witness demonstrating with his hands). He told him yes he knows he did not recognize him. He told the Accused that he was the one that the Accused used gun to snatch motorcycle from. And that his deal is a wrong deal. He started shaking. The Accused told him did people tell him that he was the one who snatched his motorcycle. He told the Accused that the time he snatched his motorcycle nobody was there. It was only him and the passengers he was carrying. The Accused said that the day the Motorcycle got lost he was sick. It was the first time he and his father eat together in one place since his father gave birth to him. He told the Accused ok they will go out and people will hear the story. Then he went and organized people that will help him to catch him. He asked the boy he went there with to stay and be monitoring his movement while he go and look for people that will help him to catch the Accused. When he came back with few people he called to catch him, the boy he told to stay and watch the Accused told him that immediately he left, the boy picked his clothes put it into travelling bag and left with his motorcycle.
As they have discovered that the boy has left, the person he kept there showed the direction that the boy went. Then they tried to look for him but they could not see him. He went back to the community and called some few elders of his community. They went to the Nze of their Community. That is Nze Joachim. They told Nze Joachim what the Accused did to him. Nze Joachim told them to go and appointed a day for them to come back. That he will go and see the boy’s parents.
On that day they still went back to Nze Joachim who led them to the Accused family. They met his father in his compound. The man told them that he has heard their complaint. That he does not want any police case. He appointed a day for them. That he is going to buy another new motor cycle for him.
That he will swear if his son is the one of the armed robbers that snatched his motorcycle then his will carry the motorcycle. He does not want a police case. When the day reached they went to collect the motorcycle as he earlier promised. The man changed his statement that since he gave birth to his son that he has never collected anything belonging to another person before. Also the night that the event happened that it was the first day he eat with his some since he gave birth to his son. That after eating the boy went to his room to sleep. He did not come out again because he was ill. That he should go and bring oath that he will swear on behalf of his son. That anybody who losses his thing use to bring oath for swearing. He said ok. Since that was how he wants it before he proceeds he will like their king to know about it.
Their Nze directed them to their King, HRH Eze Aguwamba. When they got there the King asked the Nze “this boy again?, this boy again?”. He asked them to go back to his own place. Then he instructed the Nze that he want to see the Accused with his father at his Palace. He also asked him to come with his own people to his Palace the same day he invited the Accused. On that day all of them came, both the accused and his father.
The king went straight by asking the boy to stand up. He asked the Accused to tell him the whole truth so that they will know how to start to help him. He asked the Accused how many times he has been accused in this community for snatching peoples’ motorcycle with gun. He replied three times. The King asked the father to stand up. The king told the father what gave him courage to ask these people to bring oath for him to swear on behalf of his son. The man replied that that very day his son did not go out. He was ill. That is why he is insisting it was not his son.
The king told him (PW1) that he should not mind them. The Accused father used to eat human defecation after swearing. He used to go and nutralise the oath by eating human faces. That is this boy the only youth living in Okpofe that everybody accused him of snatching peoples’ motorcycle with gun. The king gave them 4 days to produce the motorcycle. Then the king asked them to go that people from their kingdom are not thieves. Then they left. Later on the Accused father sent message to him (PW1) that he is still where he is. That he should go and bring oath for him to swear on behalf of his son.
He went back to King and told the King the message he got from the Accused and his family. The king said he should go ahead and catch the boy that he has about five cases of snatching people’s motorcycle with gun. That was when he started plotting on how to catch him. He went to the Police at Ezenifite Police Station. The Police took him to Ezinifite and handed over the matter to the vigilante. They are the people that will be fast in catching the boy.
He went to them and told them that since they want to swear, they should come to the place he snatched his motorcycle and swear for him. I noticed that the area they snatched his motorcycle was outside Okpofe. It was governed by another king. It is governed by HRH Eze Mike Oji. He then went and gave the same complaint to Eze Mark Oji. The king now told him that this Accused used to come to his kingdom. He has a gang. He is looking for a way to catch him. He told him that he is not going to use the vigilante they gave to him because he might be having friends among the vigilante. He is going to organize those he is sure is going to catch the Accused.
He told him that when he comes to the place to take the oath he should make sure he catches him if not his motorcycle is gone. The boy is very dangerous.
That day he chose for oath taking was on 25-11-17. The father of the Accused told him they will come there by 7am. The vigilantes were in the bush from 5am in the morning. They did not come at the time they gave them. The vigilante men warned they were going. He was pleading with them that they will come. They came through another road by 9am. Immediately the Accused came he jumped from motorcycle and was staring at the bush. He distracted him and told him to come and swear. That they have wasted much time. Then he came to where he was standing. He was having a small calabash in his hand in which he just put small sand inside. And the father was asking him where is the cock, where is the cock, where is hot drink. He told him everything has been put inside the calabash.
He asked the Accused if he says that he is not the one he saw that night, he should come and carry the pot. He was afraid to come and carry the pot. And the father now came and was saying Fine Boy carry the pot, Fine Boy carry the pot.
The vigilante in the bush was eager to come and catch him that was when he noticed that he (PW1) did not come alone and wanted to run away. He (PW1) dived him and caught him by his waist and he bit off his (PW1’s) left ear with his teeth. Then his father and his brother were beating him that he should leave him(the Accused). He held him and was shouting. Then the vigilante came and held him. And they tied him rope. They took him to HRH Eze Mark Oji. He was there too. The king asked him(PW1) to go to Hospital and treat himself. He told him to take the Accused to Owerri. Each time they bring report and he is locked at the Police Station, he will not know how he will be released and he will not hear about the matter again. At the Police Station – he (PW1) made statement.
Under cross examination he stated that this alleged incidence took place around 9pm. The incidence took place after Orieihitte. It is called Umuokiriri Ihette after Oriehitte Market. He knows the accused person before the incidence. How he did know him is not because they have blood relationship or father. He knows him because he used to do okada business and also he knows him in town facially and his nickname he answers which is Kiloshe
After the incidence he told the woman not to worry that he knows the boy he will catch him. So the woman went to her house and he trekked to his house.
Where it happened is a straight road. So when they got to the market square- Okpofe Market Sqaure – the woman gave him N500 to assist him in transportation and the woman went to her house and he trekked to his house.
He did not run to the same position or same direction during the incidence with the woman. Because immediately he saw the Accused with a short gun, he jumped. He did not even know how the woman went. The Accused person did not shoot at him.
On this day this happened he did not report at the Police at Ezinifitte. He made statement at the Police at Eziniffite. He made the statement at Itu on 25-9- 17 being a Monday. He did not say in the statement that he did not know the Accused person. It was Chilaka, the husband of the woman he was carrying that identified the Accused
The Defence counsel demanded to have the statement the PW1 made on 25-9-17, and the prosecution counsel stated that from all indications the statement was not forwarded to Federal SARS who later took over the further investigation of this matter by Ezinifitte Police. The case file returned to them was specifically investigated by Federal SARS and the PW1 made statement to the Federal SARS which formed part of proof of evidence. The statement of PW1 was not forwarded. And from the file the Federal SARS did not indicate that any file was forwarded to them from Ezinifitte.
It was put the PW1 that he did not make any statement at the Police Station Ezinifitte and he replied that he made statement there. He did tell the Police that at the time he went to the Accused’s house he told him that the night he was eating food with his father and thereafter went to sleep because he was not feeling fine. He did at Police Federal SARS.
He visited the Accused on 27-9-17 being Wednesday, Nkwo Mbaise Market day. He knows John Akpole. He did not go to the house of Accused with John Akpole. He does not have the date he narrated this incidence of robbery to John Akpole off hand. But the reason why he consulted John Akpole was because he is the vigilante. At the time the Accused had run away. That was after 27-9-17
He did not agree when the Accused father told him they are willing to take oath. He does not believe in oath taking because he saw the person, the Accused, who took his bike. He was not wearing mask. He knows Eze Mark Orji. He caught the Accused person on 25-11-17. They did go again to the Police Station on 25-11-17. After he made entry he did not go there again. When the Accused was caught, he (the PW1) was taken to hospital because the Accused bit me (PW1) on the ear. And the Eze instructed the vigilante to take the Accused to Owerri because if they take him to the Station here they will soon release him.
After the treatment he does not actually have the date he went to visit them there and they took his statement. They caught the Accused on 25-11-17. He thinks he went there within one week they caught the Accused. It was the day he got to Owerri that he made his statement to the Police. His statement was not made the day the Accused was caught and he gave him human bite, because he was hospitalized. It was Vigilante that took him to Owerri
In his statement he told the Police that when he confronted the Accused, the Accused told him on the night of the alleged incidence he was eating with his father and after eating he went to sleep. The PW1 statement was admitted as Exhibit A.
The day fixed for oath taking on 25-11-17 he went there with Akpole John a vigilante. Others were invited from his village but the time they would come the whole thing has finished. They met them at Eze’s Palace. He came with oath material. He came with pot. The person he took to the house of the Accused is an Okada man and not even from his village.
On that 25- 11-17, the day of oath taking, the Accused came with his father and elder brother. Apart from these persons, the Accused, his father and elder brother, he and John Akpole, there were vigilantes who were hiding in the bush. There were also okada people. They parked their machine watching what will happen. They are there only to help to see that the Accused was taken to the Eze’s palace because he was trying to run. When he summoned the Accused person before the Eze Reginald Agumba he came with the father. And on the question “And you people settled for oath taking and this was why you brought oath material, the PW1 replied “No. It was not the day that the material was brought
PW2: One Chilaka Chinyere testified as PW2. She is from Okpoefe Ezinihitte Mbaise LGA. She is a business woman. He knows Accused by face. She also knows one Donatus Njoku PW1 and complainant. She remembered 22-9-17. One Okadaman named Donatus Njoku –PW1. He was the one who normally carries her whenever she goes for her business. On the day he carried her and her two children. Reaching at Okparachi Ihitte, his bike stopped. Then they saw a Daylong Machine with three boys on it. They now passed them. She and her children were struggling on how to help him to move his machine. So immediately they reached Orieihitte, they saw the three boys with daylong machine. They now passed. Immediately they passed them, the Accused person jumped out with gun. He began to pursue the PW1, the complainant. The Okadaman ran to the dark place and she now took her children and ran away. As they ran to one corner watching them, then the other okada was on the other side waiting for him. Then the 2nd one took Donatus’ Okada and was running away. While the Accused was with Donatus and asking him to give him the remote or he will shoot him. When the Accused saw that the other one has carried PW1’s machine away he shot in the air and the other one carried him on his machine and they ran away. PW1 now started shouting, crying. She now asked him whether he knows the Accused. She knows him by face but not by name. PW1 told her she should not worry that he knows him. That he normally drives on the road. He now called him that his name is Kiloshe. All of them now used their legs and trekked to Afor Ihitte Market Square. Because she pitied him, she gave him N500 and they parted. He went his way and she trekked home. Their house is close to the market square. After two weeks the PW1 met her in her shop with big bandage. She asked him what happened. He told her that the Kiloshe bite him on his ear. she pitied him. That is all. In the course of the investigation she made statement to the Police.
Under cross examination she stated that she knew PW1 before 22-9-17. She knew the Accused before the day. She does not know the other boys that allegedly attacked PW1. PW1 knows them particular of – the Accused. He normally drives on the road. she knows him as okada man. When one of the boys pursued PW1 she took her children and ran to one corner. The bush was covering them. From there she was watching. More so the machine has halogen bulb. So from there she was watching everything.
When reminded that she mentioned that the place was dark, she replied yes, she ran to dark place. She is not sure if the boys that allegedly stole the PW1 machine also took the remote control. She made a statement at Ezinihitte Police Station. When this incidence happened she was frightened. She was trying to control her children. The PW1 knows her house. PW1 lives at Umune Okwuato, Aboh Mbiase LGA. She does not know if her husband knows the Accused person. The PW1 came to her shop and not her house on 24-9-17
PW3: Akwuole Ugonna John testified as PW3. He is a native of Umuon Umuju Okwuato in Abo Mbaise LGA. He is a member of Imo Community Watch. He also engages in palm oil business. He knows the Accused. He also knows PW1 Donatus Njoku. He remembered 22-9-2017. Donatus Njoku came to his house around 9pm. When he came he told him that one Kiloshe snatched his machine at gun point at night along with two others. I asked him if he has reported to the Police, he said no that the incidence happened at night. He quickly told PW1 that he cannot do anything unless he reports to the police. After two days PW1 came to tell him that he has reported the matter to the Police. It was then he asked PW1 whether if he sees the boy he will recognize him. PW1 said he knows the Accused by face but do not know his house. He asked also of the person PW1 was carrying that knight on his motorcycle, PW1 knows the person and PW1 said yes. He asked PW1 to go and meet that person he was carrying on his motor cycle that night that the thing happened may be she will know the boy. PW1 later came back to tell him that he has known the boy’s house. It was then he told PW1 what to do. They took some of the Nzes who took them to the Accused’s own Nze who then carried them then to the Accused’s father’s house.
When they got there they did not see the Accused but they saw the father. The father welcomed them. PW3 did not contribute in the discussion. The father told them that he has heard what happened. He does want police to be involved. They should come back in 4 days time and he will replace the machine for him.
When the Accused father said that they left. In four days they came back. When they returned in 4 days the father changed his position. And said that the Accused will take an oath. When the Accused father said this the Nze said that since it has gotten to oath taking it will not be done without informing the Eze. When they reached Eze’s palace, he -PW3 now explained to the Eze who he was and how he got involved. Eze quickly asked the father where is that your son Izuchukwu how many times have you been involved in machine theft. Eze asked whether the Accused was there and the father said yes. Eze asked him to come out and the Accused came out. Eze asked the Accused how many times he has involved himself in motor cycle stealing. The Accused said he has been involved in motorcycle stealing three times. Eze asked him again whether he can tell him how those motorcycles were stolen. He said it was allegation levied against him. When he said it was allegation, Eze told him that even if he takes the two that happened at Okpofe as allegation what about this one that happened outside. How did they come to know him? Eze told him my son what they said you are is what you are, he must tell him the truth. He should do quick and bring out the motorcycle so that they will not what to do or else he will instruct those it is there work to do their work.
Immediately the father told Eze that his son is ready to take an oath. The Eze told him that oath is not taking in his Palace. He should tell us where his son wants to take the oath. So as they left the Eze told them to take the matter to the police. This is not the first or second matter that the Accused has before him. The Accused was in other matters.
They agreed with the father that he should take them where the son will take the oath. He told them it will be at the point the motorcycle is said to be snatched. That is at Ihitte. They informed the Eze of Ihitte. And he said is it the same boy. He gave them security. When he came for the oath, the PW1 held him and he quickly bite the PW1 on the ear. It was then they arrested the Accused and handed him over to the Police. After the brother (to the Accused) told him (PW3) that he will kill him because he knows him. At the Police he made his statement. And told them how the two Ezes were involved. The two Ezes even gave him their complementary card.
Under cross examination he said that the Statement he made was at Owerri Police Headquarter. He did not make any statement at Ezinihitte Police Station. The issue of oath taking came about because the Accused denied stealing the motor cycle. As a member of the Imo community Watch he was posted to Aboh Mbaise. He knew the complainant before the incidence. He is from his village. This alleged incidence tool place at Ezinihitte Mbaise. They were up to 8 person security men with him the day the Accused allegedly gave the PW1 human bite.
He did not know the Accused person before the alleged incidence of 22-9-17. He made one statement the Police. He does not know the village in Ihitte that the alleged incidence took place. It was them that took him there
PW4: Force Number 501273 – Copl Otuozu Ndubuisi testified as PW4. He is attached to SARs Owerri, Imo State. By 22-9-17 he was attached as charge room officer at SARSs Owerri, Imo State.
He knows the Accused person. He also know Donatus Njoku- PW1 and complainant. On 25-11-17 he was on counter duty as CRO. The command Control radioed our base which he intercepted and moved to Control Room. On getting to the Control Room he saw the Accused, the victim- PW1 and one John Okwuole- PW3 a security man from Ezinihitte. The Accused person, victim and PW3 were handed over to me for investigation. I recorded the statement of PW3. I issued medical report form to PW1 for medical attention. The PW1 was full of blood and was down in health. The Accused person removed his left ear in the process of identifying him before security men. Thereafter, I recorded the statement of the Accused. He volunteered his statement under caution. Two days later the victim was little beat stable he came to the office from hospital and volunteered his statement freely.
On 30-11-17 we conducted search warrant in the premises of the Accused person and visited the scene of crime accordingly. The person whom the victim was carrying on the motor cycle came to the station and volunteered her statement voluntarily. After this were series of interviews with our commander and other senior officers. Finally investigation report was approved by the COP for onward movement that the matter be charged to court. he identified the statement of the Accused person which he recorded. It was tendered, admitted and marked Exhibit B
CROSS EXAMINATION: Under cross examination he stated he is not aware if there was any statement of the Accused or PW1 at Ezinihitte Police Station. He recorded everything that the Accused person said that day. When asked specifically if the Accused told him that on that day he was with his father which was confirmed by the PW1, he repeated that everything that the Accused person stated that day as his statement was what he recorded. He was in the office when the PW1 sustained the injury in his ear. He was part of the investigation team. All through his investigation he did not conduct identification parade. When as asked whether the PW1 told him what time the incidence occurred, he replied: “It was about 10:05 hrs in the morning. I mean 9-10:00hrs in the night of 24-11-17 was when the incidence happened”.
He was asked “If anybody tells you that the incidence occurred on 22-9-17, the person is lying. And he replied: The person is not lying because on 22-9-17 was when the incidence of Armed Robbery occurred. PW1 told him that his motor cycle was stolen from him on the 22-9-17. And he said he ran away with the remote control of the motorcycle
In the course of his investigation he got the remote control of the Motor Cycle. In the course of investigation he got particulars of the motorcycle. The receipt of the motor cycle will state when it was purchased. He does not know. The registration number of the motor cycle is written in the statement of the victim. When asked: As the investigator did you try to find out where the motor cycle was purchased from. He replied: The receipt of the motor cycle provides. The receipt was not forged”. He cannot remember where the motorcycle was purchased from. But the receipt is there.
He knows one Traditional Ruler Eze RJC Aguwamba. They visited his house with Accused person. He did not make any statement. But he brought letter addressed to COP on the negative conduct of the Accused person at Ezinifitte and its environs. It was addressed to the Commissioner of Police. It is with COP. Ekechukwu reads the conclusion of Report of Police to the PW4 to which the PW4 said “Yes that is my conclusion”
He was asked that the Accused person was brought to his office, he did not arrest him, and he replied that he rearrested him at the Control Room in Owerri Command. He knows how many people that were involved in the incidence, they were three in number. He knows one Eze Mark Orji. He did not make any statement. But he wrote a letter to the COP. He was asked: “You said you visited the scene, at where and he replied: I can’t remember the name exactly. Opofe something. He did not recover anything. But there was a mark of struggle at the scene of crime. That was on the road
The victim- PW1 and the Accused person showed him the scene of crime. He also visited the house of the Accused person. He did not recover anything. He saw the father of the Accused the day he visited. When asked: “Did he tell you where the Accused was on the day and time of the alleged incidence? He replied: “Yes. He volunteered a statement”. He was further asked: “He told you he was eating with the Accused that evening. And he replied: “Everything he stated is in his statement. He did not visit the Ezinifitte Mbaise Police Station in the course of his investigation
He was asked: And you would not know if any report was made at Ezinihitte Police Station and he replied: “The victim reported after the incidence of 22-9-17.
DEFENCE’S CASE
DW1: Emmanuel Egwurugwu testified as DW1. He is from Okpofe Ezinifite Mabise. He is a farmer. He knows the Accused. He is his son. On 22-9-2017 he was in his house with his son. They eat together around 8.30pm. They slept in the same room because for two weeks he was not feeling fine and he asked him to return.
On 25-10-2017 he was in the house around 8.30am. Nze Joachin and some people came to his house. He said his name is Donatus Njoku. That he came to his house to lay complaint that his son – izuchukwu stole his motor cycle. He asked him when it was and he said it was on 22-9-17. He told them let him call his son to say when he will come. Let him come and tell me when he stole. They were there he called him on phone and told him to come home on 26-10-17. He informed Nze Joachim that he and those people should come back on 27-10-17. Around 9am on that 27-10-17 they came. They were over 9 persons. They are his kindred people. Donatus Njoku stated what happened. They cross examined him. They asked Izuchukwu (the Accused) to narrate his own part. They asked Donatus Njoku whether he has question for the Accused person and he said he has no question for him. This pained his kindred and they said they will go out and consult among themselves. They said it is something that oath will be taking on. He asked the complainant – Donatus Njoku to take an oath and he will replace the motor cycle for him. He refused. The people that took the decision said if he will not take an oath that his son –the Accused should take oath. He agreed that he and his son will take the oath.
Nze Joachim Adiele said he will report back to Eze RGC Agunwamba since he is aware of the case. On 8-11-17 the Agunwamba requested that all of them should come to his Palace. When they got there he asked them questions. He said that the oath will not be taken in his palace. That he gave them 4 days and gave us 4 days to go and think over whether they want to take the oath or whether we are taking the oath. After 4 days they went to Nze Joachim and informed him that he and his family are ready to take the oath. On 17 -11-17 Donatus Njoku and John Akwuole came to where they were doing community clean up and said they want them to take the oath for them on 18-11-17. He told them he cannot call his son now and he will return to meet up the 18-11-17 date. They should slate another date. They slated 25-11-17. That was a Saturday by 8am. On the 25-11-17 by 8am he took his son – the Accused and Onyebuchi to go and take the oath in their clear mind. They went and called Nze Joachim Adiele. He told them to keep going and that he is coming. Because he has already known the place where the Donatus (PW1) said that his motor cycle was stolen. When they asked Donatus where he wanted them to take the oath, he said it will be at the place where the motor cycle was stolen. It is called Ukwuegbu Ihitte.
The oath was taken. As Donatus was handing over the oath material to the Accused and as the Accused wanted to lift it, Donatus griped him from the back. They started beating him. They gave Onyebuchi a machete cut that day. They took them to Eze Mike Ndudiri Orji’s palace. The Eze locked them up at the cell. They were there when they called Police men from Itu who came and took them to the Police Station Itu and locked them up there.
He made a statement at Police station Itu and at Owerri.
The Accused counsel requested to have the statements of the DW1 but the prosecution counsel said they only have a statement made at Federal SARs and it was made by Emanuel Onuoha. The DW1 explained that his full name is Emmanuel Onuoha Egwurugwu. Statement of the DW1 was admitted and marked Exhibit C.
Under cross examination he stated that it is right to say that the Accused person is one of my sons. He has 3 sons. Among the three sons, the position of the Accused is 2nd son from his 2nd wife. There is nothing like he knows very well the robbery activities of his son. It is not true that he is also aware that his son- the Accused is specialized in robbing motor cycles on gun point with his gang. When he was told: ‘You have received several reports from people who complained concerning previous activities of the Accused before this incidence’ he replied: ‘There was a complaint. Police investigated and found it was not him. The people involved replaced the motor cycle’. It was put him that he is in the habit of replacing stolen motor cycle by his son to shield him from arrest and prosecution and he replied that he has never replaced motor cycle for anybody. Since he was born he has never replaced any motor cycle for anybody.
It is not true that in the instant case when PW1 identified his son as the one who robbed his motor cycle at his house he agreed to replace the motorcycle because he did not want police to be involved. There is nothing like that he also gave PW1 a specific time to come and collect the motor cycle and for him not to involve the Police. It is not true that on the day he gave the PW1 to come for the replacement of his Motor cycle he came and he changed his position and asked him to take an oath. What was agreed is on the day for them to come and narrate their story. Among his other sons he has not received any complaint except for the accused. But police investigated and found he was innocent.
He was asked to tell the court the police that investigated the allegation that was found to be false and he replied that he does not know the name of the police officer. But it happened at Ezinifite Police Station. He was told that he made a statement to the Police now exhibit C on 18-12-17 and he replied it was on 25-11-17. It was put to him that he never made statement at Ezinifite on 25-11-17 and replied that he made statement on 25-11-17. He knows the police man that took his statement.
It is true that he also made statement at FSARS on 18-12-17. He was told that that statement he made at FSARS is the only statement he made in this case. He replied that he made a statement on 25-11-17 when he was locked up at police station with his son Onyebuchi. He was told that the statement he made at FSARS is an afterthought and he replied that he made it when he was invited to FSARS with his wife. They wanted to lock him up so that he will not go for the matter. He was told to make statement. That was the day he made the statement. He was asked if he was invited or he went there voluntarily and he replied that they dropped messaged with his wife when they came for search for him to come to FSARS. He did not remember the date. But it was not more than four days after the Accused person was arrested. He was asked if he can tell the court the interval between when the message was dropped for him and the day he went to FSARS and he replied that he went on the date given to him by them.
He was told that it is right to say that he love his son- the Accused very much, he replied that he loved all his children. He was told that because he loves all his children including the Accused he can go to any length to defend them, he replied it is not because he loves them. He was a security man for 35 years in Okpofe. He does not condone evil. It is not true that all his actions in this complaint and other complaint he did them because he loved the Accused and want to protect him from arrest and prosecution. He relied that as an only son that he (DW1) is he is hated. That is why they want to kill all his children. Yes it is true that PW1 is not from his community but he has joined hands with those he is not in good terms with to persecute him.
It was put to him that nobody hates him, nobody persecutes him but he came to limelight to have produced a criminal son and he replied that they hate him and want to persecute him. He knows the place they had meeting to do so. He was told that his statement to SARS does not represent the truth of what happened he did it to exculpate his son and he replied that what he said was the truth. They are forcing him to buy motorcycle which his son did not steal. He knows the matter will come to court. It was put to him that contrary to what he said, nobody forced him to buy motor cycle, he volunteered to replace because he wanted to shield his son and he replied that the PW1 and FSARS forced him to replace the motor cycle so that they will not go to court. He was told that all he told the court is all lies and he replied that what he said to the court is true. It is because he said he will not replace the motor cycle they took his son from cell 3 and put him in cell 1 so that they can kill him. He was told that he is not a witness of truth. He came to court to deceive the court and save his son and he replied that he said the truth.
DW2: Izuchukwu Onuoha, the Accused testified as DW2. He stated that before his remand he was an Almaco maker. He lives at Umuahia Abia State before he was remanded in prison custody. He did not commit the crime stated in the charge. On 22-9-17 he was in his house with his father. He was not feeling fine. He was poisoned at his left hand. And that thing got swollen getting to his heart. He slept along with his father that day, when he got well he went back to Umuahia. On 26-10-17 his father called him on phone, he answered the call. He told him that one Donatus Njoku from Okwuaoto Umuhu in Aboh Mbaise LGA said he stole his motor cycle. He asked his father which Donatus and he said Donatus Njoku. So he told his father that there is a place he is at work. That he will not be able to come back that day he should give them 27-10-17. On that day he came back. Donatus Njoku with his village people came to their house and his father gave them kola. So Nze Joachim Adiele told them to say what they came for. Donatus got up to say that he and his friends took his motor cycle on the way
When he finished, one man he came with called Eziahakaego said if anyone has a question he should ask. So he (DW2) raised his hand and said he has a question. He asked him where and when he has seen him. He (PW1) did not reply. He asked him whether that day the person was fair or dark. He (PW1) said the person was wearing a mask. At the meeting they went outside and consulted and came back and said he will take an oath for them. Their Nze Joachim Adiele with Joseph Nwawu took them and shifted aside and asked him if he is sure that his hands are not in that act. He told them that his hands are not in the act. He agreed to take the oath and he took the oath. After the oath taking, the PW1, one of his brothers and one Imo Security Network man, while he was still with the oath, the PW1 gripped him. So he saw one Imo Security man and one Police man. He raised his hands up when he saw them. Donatus Njoku PW1 and two of his brothers started beating him up. So he was there shouting his hands are clean. They put him in the vehicle and took him to Eze’s palace. At Eze’s Palace, Eze came out and asked him his name which he told him. He asked his occupation and he told him. As they were there the PW1 came in and was shouting his ear his ear. Eze instructed that they should take him (DW2) anywhere they want to take him to. They took him to Afor Ibeku from Eze’s palace. The PW1’s brother took him to Afor Ibeku. They wanted to set him ablaze at Afor Ibeku. Some people around there said they should not set him ablaze. They should take him to the Police. They took him to state CID SARS. At SARS office he made statement. His statement was recorded by Mr. Ndubuisi. He is his IPO. He told him where he was on that 22-9-17.
Under cross examination he stated that it is not true that he is specialized on robbing people of their machine at gun point. He was told that the incidence that brought him court is not the first time of his getting involved in robbing people’s machine and he replied I do not do it. It is not true. It is not true that father that DW1 has always come to his rescue whenever he steal people’s machine. He volunteered to replace them so that police will not arrest him and prosecute him. He was told that on the day of the incidence he led two other members of his gang to rob PW1 of his machine, he replied that he does not have any gang. He does not rob people of their machine.
He was told that he was armed with shot gun with which he chased away the PW1 to enable his gang to steal the machine and he replied that he does not have a gun. He does not pursue people with gun. He was told that he bears the nickname Killoshe and he responded that he does not have nickname. His name is Izuchukwu Onuoha. He was told that in the course of robbery the PW1 clearly saw he and recognized him and he replied that he was not the one he saw. He was told that also PW2 Chilaka Chinenye saw him and recognized him and he replied that he was not the one she saw. He was told that contrary to what he told the court, he never slept with his father that day and he replied that he slept with his father.
It was put to him that assuming without conceding that he slept in his father’s house, it was after he has successfully succeeded in robbing the PW1 of his machine and he replied that it is not true. There is nothing like that that happened. It was put to him that he is not a witness of truth. He has come to deceive the court and he replied that he said the truth.
Submission of the counsel
At the close of case the counsel exchanged written addresses. The counsel to the Accused E.C. Ekechukwu filed his written address on 24th June 2019. After introduction and what he called relevant facts, he formulated two issues for determination via
- Whether the prosecution has proved the case of armed robbery against the accused person beyond reasonable doubt.
- Whether the defence of alibi raised by the accused person was established
On issue 1, it is submitted that to sustain a conviction in a charge of armed robbery, the prosecution must prove beyond reasonable doubt the following ingredients which are very essential and mandatory. (a) That there was a robbery, (b) That the robbery was carried out with the use of offensive weapons, (c) That the accused participated in the robbery. See ALABI V. THE STATE (1993)7 NWLR (pt 307)511
According to the counsel, in the instant case, the prosecution failed to establish the existence of the motorcycle alleged to have been stolen. There is no evidence in proof of the ownership of the motorcycle by the victim (PW1). He did not tender any document of purchase or registration of the said motorcycle. Even when PW1 had alleged that he ran away with the remote control of the motorcycle, none was tendered in evidence. There is no iota of evidence in proof of the existence of the motorcycle alleged to have been stolen and failure by the prosecution to establish the existence of the item stolen creates doubt as to whether there was any robbery incident as alleged. Relied on ADUN V. OSUNDE (2003)16 NWLR (pt. 847) 643 at 670 to the effect that: Where an alleged crime has not been proved beyond reasonable doubt, any lingering doubts must be resolved in favour of the accused person’
On the issue as to whether the robbery was carried out with the use of offensive weapons, it is clear from the evidence before the Court that no offensive weapon was recovered from the accused. Apart from the bare allegation by the PW1 and PW2 that the accused was holding a short gun during the alleged incident, there is no further proof of armed robbery. Even the PW4 (the IPO) who conducted search of the premises of the accused did not find any gun. See the evidence of PW4 on 26th February 2019. There is no other eye witness account of this alleged robbery incident even when it was alleged to have occurred at the market square called Orie Ihitte. It is submitted that a very serious doubt has arisen as to whether there was any robbery incident at Orie Ihitte market square along Okpofe Road on 22nd September 2017 because such market square ought to have the presence of other people.
It is submitted that the other essential ingredient of the offence of armed robbery which the prosecution must prove beyond reasonable doubt is that the accused person was the robber that committed the offence. From the evidence before the Court, the accused was not arrested at the scene of the alleged crime and he has denied committing the offence. Both the PW1 and PW2 who claimed to have noticed the 3 persons that robbed the PW1 of his motorcycle could not observe the features of the accused or the other two persons and did not state any such distinguishing features of the said three persons in their statement to the Police. The evidence of the PW1 clearly shows that the PW1 never had any earlier encounter or acquaintance with the accused before the alleged incident of 22nd September 2017.
The PW1 in his evidence on 2nd October 2018 testified that the identity of the accused was revealed to him by Mr. Chilaka on 24th September 2017 when he went to see the PW2 about the incident of 22nd September 2017. Contrary to the above testimony, the PW1 had in his statement to the Police (Exhibit A) on 27th November 2017 stated that it was one lady called Favour that identified the accused as lzuchukwu Onuoha. It is submitted that if the PW1 had known and identified the accused on the day of the alleged incident, he would have stated so in his earliest statement to the Police on 25th September 2017. The said statement which PW1 admitted he made during his evidence under cross-examination on 23rd October 2018 was withheld by the prosecution despite the demand for it by the accused person’s Counsel. The court is urged to presume under Section 167(d) of the Evidence Act that the said statement would not be favourable to the prosecution’s case if tendered and this has greatly prejudiced the case of the accused. See FRAMO NIG. LTD V. DAODU (1993)3 NWLR (pt. 281)372; THE REPUBLIC v. EDWARD OBINGA & anor (1965) ALL NLR 501 at 504
According to the counsel, from the forgoing evidence, it is clear that the identity of the accused is in issue. Counsel referred to MADAGWA v. STATE (1988)5 NWLR (pt. 92)60, ALABI V. THE STATE (1993)7 NWLR (pt. 307)511 at 527 the Supreme Court described identification parade as one carried out spontaneously and at a most auspicious moment and the earliest opportunity whereby a group of persons of identical size and common physical features are assembled by the Police from whom a witness identifies a suspect or suspects unaided and untutored.
According to the counsel, the Police through PW4 openly admitted in Court on 26th February, 2019 that identification parade was not conducted in this case. PW4 stated in his evidence on 26th February 2019 that he saw PW1 on 25th November 2017 when his body was covered with blood and that he gave a medical proforma to him for medical- attention. This is contrary to the evidence of PW1 who testified on 16th October 2018 and 23rd October 2018 that he did not go to Police on 25th November 2017 but was directed by Eze Mike Orji to go to the hospital and that it was on 27th November 2017 that he went to the Police at Owerri and made his statement (Exhibit A). It is submitted that where, as in this case, an accused person was not arrested at the scene of the alleged crime and in addition pleads alibi, a proper identification parade ought to be conducted because the identity of the accused is now in doubt.
Furthermore, there are other substantial facts which the Honourable Court must consider in this case. They include:
- The PW1 did not know the accused person before and his first acquaintance with him as he claimed was during the alleged incident on 22nd September 2017.
- The accused person was not arrested at the scene of the alleged crime and he took the earliest opportunity when confronted to state where he was on the day and time of alleged incident. Referred the Court to evidence of PW1 on 2nd and 16th October 2018, Evidence of DWI on 26th March 2019, and evidence of DW2 on 7th May 2019. Exhibit C (Statement of DWI to the Police) clearly raised the plea of alibi.
- The statement of PW1 on 25th September 2017 to the Police of Itu Ezinihitte Mbaise was not tendered.
- Chilaka and Favour who allegedly identified the accused were not called as witnesses in this case.
- The alleged incident happened at 9pm in the night and the PW1 and PW2 could not have had the full opportunity of observing the features of the accused due to time and circumstances wherein they ran inside the bush upon seeing the robber with a gun.
- In the fleeting moment of the alleged sudden robbery it is inconceivable that PW1 would have the opportunity of noting and observing the physical distinguishing features of the accused.
- The accused followed through the local arbitration and oath- taking to prove his innocence.
According to the counsel, the Courts have consistently held that whenever the case against an accused depends wholly or substantially on the correctness of the identification of the accused which the later alleges to be mistaken, the Learned Judge should warn himself of the special regard for caution before convicting the accused in reliance on correctness of the identification. Relied on NWABUEZE v. THE STATE (1988)4 (pt. 86)16 at 30-31 per Oputa, JSC. The court is urged to hold that the prosecution has failed to proved beyond reasonable doubt that the accused person was the armed robber that allegedly robbed PW1.
Under issue 2, it is submitted that Exhibit C which is the statement of DW1 to the Police; the evidence of PW1 on 2nd & 16th October 2018; and the evidence of DW1 on 7th May 2018 clearly show that the accused took the earliest opportunity before trial and gave the necessary information as to where he was at the time and date of the alleged robbery incident. It is submitted that PW1, DW1 and DW2 maintained that the accused stated that he was with his father in their house where they ate food together and went to sleep. These statements and exhibit C were made before the trial of the charge. The Police failed to investigate the plea of alibi raised by the accused person who gave the necessary information as to where he was at the time of the alleged incident. Referred to OWOBU v. THE STATE (2015) ALL FWLR (Pt. 762)1668 @1689.
It is submitted that where, as in this case, an accused person has raised an alibi and clearly stated his whereabouts before the trial Court and the prosecution failed to take any step to verify or disprove it, the Court will be right to hold that the prosecution failed to prove its case beyond reasonable doubt. Therefore the evidence of the prosecution witnesses is inadequate to implicate the accused person. Relied on BANI v. STATE (2003)18 NWLR (pt. 851)224 at 250. The court is urged in the final analysis, to discharge and acquit the accused person for the reasons stated above.
The prosecuting counsel C Anyaoha CSC filed his final written address on 29th July 2019. After the introduction and what he called facts of the case, he formulated two issues for determination via:
- Whether the prosecution has proved its case against the accused person beyond reasonable doubt.
- Whether the plea of alibi which was never raised at any time by the accused person will avail him.
The counsel answered his issue No. 1 in the affirmative. It is a trite law that to prove a charge of Armed Robbery against the accused person, the prosecution must prove the following essential elements.
- That there was a robbery or series of robberies.
- That the robbery was an armed robbery
- That the accused persons (s) are the ones who took part in the robbery. See: BOZI V SATE (1985) 2 NWLR) CPT 8)P. 465.
It is submitted that the prosecution effectively proved the above essential elements through the direct evidence of the P.W.1 (Victim of the crime) and PW2 (a direct witness of the crime)
On whether there was a robbery or series of robberies the clear and unshaken evidence of the P.W.1 and the corroboration of the PW2 who both witnessed the robbery and dispossession of the P.W.1 of his motorcycle by the accused person and his gang lends credence to the robbery as charged against the accused person. The prosecution submits that this element was not disproved in any way or form by the defence
On whether the robbery was an armed robbery, the unchallenged evidence of the P.W1 and P.W.2 lends credence to the established fact that the robbery was an Armed Robbery. Both P.W.1 and P.W.2 identified the accused person as the one who was armed with a locally made short gun which he also shot in the air while chasing the P.W.1 before his gang members took hold of P.W.1’S motorcycle.
On whether the Accused person is among the ones who took part in the robbery, this element was overwhelmingly proved through the unchallenged evidence of P.W.1 and P.W.2. Both P.W.1 and P.W.2 clearly saw and identified the accused person in the course of the armed robbery with the help of the motorcycle head lamp of the P.W.1 which was on when the accused and co accosted them. Both P.W.1 and P.W.2 knows the accused person very well facially and by his nick name “Kiloshe” as he sometimes plies commercial motorcycle. There was no mistaking of the identity of whom they saw, prompting the quick search and location of the house of the accused person by the P.W.1 to accost him over the incident. According to the counsel, the Supreme Court has posited that “the best identification of an accused person is by the victim of the crime or a witness to the crime”. See: OKOSI v STATE (1998) I ACLR PAGE 284 AT 294.
The prosecution submitted that, the identity of the accused person in the course of the robbery, the specific roles he played in the course of the robbery was clearly captured by the P.W. 1 and PW2 in unshaken unison. Moreover, both P.W.1 and P.W.2 are victims and witness of the robbery respectively making their identification of the accused person a compelling probability. See: BOZI V STATE (1998) I ACLR PAGE 2 AT PAGE 11.
The prosecution counsel answered issue 2 in the negative. According to the counsel, it is trite to state that for the accused person to take advantage of this defence, he must do the following:He must give a detailed particulars of his where about on the crucial day of the offence which will include: i. The specific place or places where he was. ii. The people in whose company he was. iii. Any transaction if any that transpired at the same time and place. iv. Furnish such comprehensive information which must be capable of investigation by the police should they wish to do so. V. These details or information must be made timeously preferable in the extra-judicial statement of the accused to the police to afford the police the opportunity to investigate it. See: GAUCHI VS STATE (1965) NWLR P. 33.
It is submitted that the accused person did not state or plead his whereabouts at the earliest possible time. The statement of the accused person which he admitted he made wholeheartedly now Exhibit B. did not disclose any alibi in order to afford the police the opportunity to investigate the alibi during the investigation of the case. It is submitted further that, what the accused stated in evidence in court during trial as D.W.2 cannot qualify as an alibi in line with the above standard established by the Supreme Court. It is trite to point out that, what the defence relies on as their alibi is the testimony and statement of the father of the accused person who testified as the D.W.1. The statement of this D.W.1 made on the 18th day of December 2017 now Exhibit C, suggested that the accused person slept and ate with the D.W.1 on the day of incident as the accused person was ill. This cannot qualify for an alibi.
For the avoidance of doubt, the law is clear on who should raise the plea of alibi. It is an accused person and not someone else. The evidence of other witness (es) should serve as a corroboration of an already pleaded alibi of an accused person at the earliest opportunity. According to the counsel worthy of note is the interval of time between the statements of the accused person now Exhibit B and that of D.W 1 now Exhibit C. The accused person made Exhibit B on the 25th of November, 2017, whereas D.W.1 made Exhibit C on the 18th day of December, 2017 almost one clear month apart. The former statement from the accused never pleaded alibi. The prosecution submits that Exhibit C was clearly an afterthought and made specifically out of emotion from a father to save his son at all cost. The counsel urged the court to so hold and dismiss the alibi as raised by an unqualified person.
It is submitted furthermore, that it is settled law that, where there is direct or positive evidence of participation in a crime by an accused person, the claim of alibi by an accused person who was seen and recognized while participating in the crime will not avail him. See: ODIDIKA V STATE (1977) 2 se 21, IKEMSON V STATE (1973) 5Se 17 AT 65. It is submitted that the direct fixing of the accused person to the crime vitiates the non existing alibi of the accused person or any alibi by anyone.
The counsel addressed what he termed facts arising from the address of the defence. According to the counsel, the accused counsel’s submission on the inability of the prosecution counsel to tender any document of purchase of the motorcycle in proof of the ownership or existence is fatal and creates doubt whether any robbery occurred, is highly misconceived. There is no doubt that there was a robbery in line with the unshaken evidence of P.W.1 and P.W.2 who witnessed the crime and corroborated by P.W.3 and P.W4.Thus the case of ADUN V OSUNDE (2003) 16 NWLR PT 847 634 at 670 as cited by the defence counsel does not apply in the instant case in view of direct and unshaken evidence of the existence of a robbery against the P.W.1. The defence also submitted that the absence of finding the gun with which the accused person used on the day of incident created doubt on the case of the prosecution. The prosecution submits that this assertion is baseless and unfounded. It is trite to state that the accused person and his cohort were successful in the armed robbery operation and had enough time to disposed or hide both the motorcycle and the gun used in the armed robbery. It is expected that the accused and cohorts will endeavour to hide things that could connect them to the crime. The prosecution submits that this act cannot vitiate the fact that there was an armed robbery in which the accused person actively participated. The direct and unshaken evidence of the P.W 1 and P.W 2 has proved beyond reasonable doubt that, there was an armed robbery in which the accused person participated.
It is submitted that the defence assertion that the absence of witnesses at the Orie Ihitte market square along Okpofe road which he claimed ought to have presence of people is baseless and to say the least laughable. The evidence of the prosecution was very clear on the time of the incident which is around 9 pm. The evidence of the prosecution never stated that the day of incident was an Orie day wherein the Orie Ihitte market was expected to be in session. Even if it was an Orie day, it is trite to say that no market operates up till 9 pm to enable people be around to witness the crime. According to the prosecution counsel, the defence also made futile efforts on the nonexistent statement they claimed the P.W.1 made at Ezinihitte police station. It is submitted that the evidence of the P.W.1 was very clear in this regard. The P.W.1 maintained clearly in his evidence and statement to the police now Exhibit A that what he made at the Ezinihitte police station was an entry and not a formal statement. Thus there was no statement and the assertion of the defence that such statement was withheld is highly misplaced.
According to the counsel, the defence also posited that since the accused person was not arrested at the scene of crime, the police ought to have conducted an identification parade. It is submitted that this assertion is highly misplaced. It is trite that identification parade is necessary or even compulsory where the identity of the accused person is not too glaring to the witness (es). In the instant case, both P.W. 1 and P.W 2 clearly identified the accused person who they know facially and who plies a commercial motorcycle and goes by the nickname “kiloshe”. Moreover this issue has been settled in OKOSI V STATE (SUPRA)
In the final analysis, it is submitted that the prosecution has proved its case against the accused person beyond reasonable doubt. There is no mistaking of the identity and roles of the accused person in the armed robbery. There is no contradiction material or otherwise in the case of the prosecution. The defence of alibi or any other defence whatsoever cannot avail the accused person. The court is urged to so hold and convict the accused person.
RESOLUTION OF MATTER
In a criminal case where the accused pleads not guilty everything is in issue, and the prosecution has to prove the whole of their case, including the identity of the accused, the nature of the act and the existence of any necessary knowledge of intents, see, R. v Sims (1946) 1 All ER 697 at 701; (1946) K. B. 531 at 539 per Lord Godard C. J. In the case of Bozin v The State (1985) 7 S.C. 450 at 477; (1985) 1 NWLR (Pt. 8) 465 at 467 the Supreme Court per Oputa JSC held:
“For the prosecution to succeed in this case there ought to be proof beyond reasonable doubt:
- That there was a robbery or a series of robberies.
- That each robbery was an armed robbery.
- That the appellant was one of those who took part in the armed robberies.
The above ingredients must be conjunctively proved. See further the case of Okeke v The State (1995) 4 NWLR (Pt. 392) 676 at 687 R. 20.
The standard of proof required in criminal proceedings is that the prosecution must prove the guilt of the accused beyond reasonable doubt. At the conclusion of the trial, any doubt that remains is resolved in the accused person’s favour. It is also trite law that the accused should only be convicted on the strength of the prosecution’s case and not on the weakness of the defence’s case. However it was held in MILLER V MINISTER OF PENSIONS [1947] ALL E R 462 that beyond reasonable doubt does not mean proof beyond a shadow of doubt or absolute certainty. If the evidence against a person is so strong as to leave only a remote possibility in his/her favour then the case is proved beyond reasonable doubt.
The question is: was there a robbery or series of robberies on the 22/9/17. The Prosecution has through the victim, i.e. the PW1 stated that there was a robbery and that he was dispossessed of his motor cycle on the said date at about 9pm by the Accused while armed with a shot gun which he actually shot from, though it was not aimed at him.
The PW1 and the PW2 were directly involved in the unpleasant incident and they narrated to the court what happened. I agree with the prosecution counsel that the defence counsel’s submission on the inability of the prosecution counsel to tender any document of purchase of the motorcycle in proof of the ownership or existence is fatal and creates doubt whether any robbery occurred, is highly misconceived. I do not think it is one of the ingredients of the offence of armed robbery to prove the existence of the item allegedly robbed. Though to me it would have strengthened the case of the prosecution if they -PW1 or the PW4- had tendered the receipt for the purchase of the motor cycle said to have been stolen or even the motor cycle remote control, I am not prepared to hold that having not tendered them did any irreparable damage to the case of the prosecution on the first ingredient that there was a robbery.
On whether the robbery was an armed robbery, again here the fact that the said arm was not recovered is not crucial to the case of the Prosecution. In OLAYINKA V. STATE (2007) 9 NWLR (PT.1040) 561, (2007) 6 S.C (PT I) 210 it was stated:
Let me now consider the arguments which substance I have set down above. With respect to the submission of the appellant about the failure of the prosecution to tender the weapons of the alleged robbery and its effect on the prosecution I do not think there is any principle of law requiring the tendering of the weapons of an alleged robbery to establish the guilt of an accused person. Martins v. State (supra) and Alabi v. State (supra) cited by the appellant in support of the submission did not lay down or restate any such principle.”
From the time the alleged offence took place to the time the IPO said he visited the scene, there was enough time to have deposed of the arm. Hence in AJUMOBI V. STATE (2018) LPELR-43854(SC) it was held that:
To secure a conviction for armed robbery the prosecution must prove the following:- (a) that there was an armed robbery; (b) that the accused was armed; and (c) that the accused, while with the arm or arms, participated in the robbery. Once the prosecution proves the above ingredients beyond reasonable doubt, failure to tender the offensive weapon cannot result in the acquittal of the accused person because of the possibility of the accused person doing away with the offensive weapon after the commission of the offence in order to exculpate himself from criminal responsibility. The production of the stolen items no doubt will make water tight the case of the prosecution. The law however still remains that where the evidence adduced by the prosecution is capable of being believed and the trial judge believed it and convicts the accused, an appellate Court will be slow to overturn the verdict simply on the basis that the trial Court could have viewed such evidence otherwise. Where it is suggested that a piece of evidence casts some doubt on the prosecution’s case, it is necessary to show, unless such is manifest or evident from the records, what aspect becomes doubtful by reason of the evidence. See: Archibong v. State (2006) 14 NWLR (Pt. 1000)
From the evidence adduced, I believed that there was a robbery and it was an armed robbery.
On the involvement or participation of the Accused person in the robbery, let me start with the manner the Accused was arrested. I failed to grapple with what was the essence of the elaborate and dramatic arrangement made to arrest or catch the Accused. The PW1 said in chief:
“I went back to the King and told the King the message I got from the Accused and his family. The king said I should go ahead and catch the boy. That he has about five cases of snatching people’s motorcycle with gun. That was when I started plotting on how to catch him”.
Was this elaborate plan to catch the Accused necessary when the PW1 has also in chief stated thus:
“Their Nze directed us to their King, HRH Eze Aguwamba. When we got there the King asked the Nze “this boy again?, this boy again?”. He asked us to go back to my own place. Then he instructed the Nze that he want to see the Accused with his father at his Palace. He also asked me to come with my own people to his Palace the same day he invited the Accused. On that day all of us came. Both the accused and his father”.
Again, the first day the PW1 allegedly went to the Accused’s house with one Okada man, he saw the Accused in the house.
From the foregoing, I doubt if the King HRH Eze Agunwamba could give such instruction to go ahead and catch the Accused when he had earlier summoned the Accused and his father and they appeared. He could have as well summoned the Accused person again and get him arrested by the law enforcement agents of any formation including Owerri, if that was necessary.
Assuming that similar allegations of crime of this nature were made in the past against the Accused, it is not enough reason not to give him the benefit of the doubt and have the current and present allegation properly reported, investigated and tried. In this regard, evidence of allegations of crime made against the Accused in the past will have no bearing in the determination of the accused guilt or involvement of the Accused in the alleged crime under trial. In ABDULLAHI MUSA v. THE STATE (2012) LPELR-20428(CA) it is stated:
It is also true that the issue of fighting was alluded to by the learned trial judge while considering the statement of the appellant, Exhibit ‘A’ which suggested a defence of provocation, The learned trial judge did not give a consideration to this possible line of defence. In OPISHE V. THE STATE (1971) NSCC 51. It was held by the Supreme Court that the primary duty of a Court seised of a criminal trial is to consider the defence raised by the accused person and any defences apparent from the totality of the evidence adduced in the case. With regard to issue (ii), the allusion by the prosecution and the learned trial judge to the bad character of the Appellant, based on Exhibit “A” is wrong and in bad state. This is so because, evidence of bad character of the Appellant was irrelevant to the consideration of his conviction and sentence since he did not give evidence of good character. The evidence of his bad character was not in issue before the lower court and the allusion to it as quoted by the learned trial judge is wrong. There is no doubt that this has influenced the opinion of the lower court in passing sentence. This is clearly contrary to the proviso to section 160 of the Evidence Act, The learned judge ought to have stopped learned counsel for the prosecution from reference to the part of Exhibit “A” which tends to give evidence of the Appellant’s bad character. In the instant case, it was the learned trial judge who went on to quote extensively from Exhibit *A” in order to show the bad character of the Appellant. The Supreme Court in LAWAL v. THE STATE (1965 – 1966) 4 NSCC 111, 113 – 117 adopted the principle stated by LORD SIMON, LORD CHANCELLOR IN STIELAND V. D.P.P. (1944) A.C. 315, 327 – 328 and held that miscarriage of justice had occurred. In LAWAL V. STATE, it was held that “If no inadmissible evidence had been received it would have been for the appellant to satisfy the court that there had been miscarriage of justice………In this case, the appellant has shown that there was a wrong decision on a question of law and this entitles him to have conviction set aside”. It was further held that -“The inadmissible evidence did not merely go to bad character in general but to vital question of who was the aggressor, since it leads to show that the appellant was a person given to the use of unlawful violence”
This is also provided for in the Evidence Act by sections 82 and 180.
Now from the evidence of the PW1 in this trial, the incidence happened on Friday 22-9-17 by 9pm. On 23- 9-17 he was in his house and did not go to anywhere. On 25-9-17 he went to the Police Station and made entry or statement. He was told to go home and wait when the boy is caught he will be called. On 25- 9- 17 and on 26 – 9 17 nothing happened. On 27-9-17, the PW1 decided to go to the house of the Accused in the company of an Okadaman (unidentified okada-man)
One wonders why the complaint/entry was not made at the Police station immediately the same day 22-9-17 or the following day the 23-9-17. When eventually the report was made to the police on 25-9-17 no concrete action was taken. According to the PW1 he was asked to wait and be called when the Accused is arrested.
From the evidence of the PW3, it would appear that the PW1 went to the house of the PW3 same day. The PW3 testified:
“Donatus Njoku came to my house around 9pm. When he came he told me that one Kiloshe snatched his machine at gun point at night along with two others. I asked him if he has reported to the Police, he said no that the incidence happened at night. I quickly told him that I cannot do anything unless he reports to the police. After two days he came to tell me that he has reported the matter to the Police”.
Before this time, the PW1 has not gone to the shop/house of the PW2 whose husband according to the PW1 in his statement was the one who said that the nickname of the Accused is Kiloshe. Here the PW3 wants the court to believe that the PW1 told him that the Accused name was Kiloshe. Now since the PW3 said that the PW1 came two days later to inform him that he has reported to the police and the PW1 said he reported to the police on 25-9-2017, it means that it was on the 22-9-17 that the PW1 went to the PW3’house. The same day he said he trekked to his house and did not go anywhere till 25-9-17.
Throughout his evidence in chief the PW1 never mentioned that he visited the PW3. In fact with regard to the PW3, the PW1 stated under cross examination:
‘He visited the Accused on 27-9-17 being Wednesday, Nkwo Mbaise Market day. He knows John Akpole. He did not go to the house of Accused with John Akpole. He does not have the date he narrated this incidence of robbery to John Akpole off hand. But the reason why he consulted John Akpole was because he is the vigilante. At the time the Accused had run away. That was after 27-9-17’.
Now the PW1 stated that he made entry. The prosecution has leveraged on this to counter the submission of the defence that the statement of the PW1 was withheld. It is submitted by the defence counsel that if the PW1 had known and identified the accused on the day of the alleged incident, he would have stated so in his earliest statement to the Police on 25th September 2017.
The said statement which PW1 admitted he made during his evidence under cross-examination on 23rd October 2018 was withheld by the prosecution despite the demand for it by the accused person’s Counsel. The court is urged to presume under Section 167(d) of the Evidence Act that the said statement would not be favourable to the prosecution’s case if tendered and this has greatly prejudiced the case of the accused. See FRAMO NIG. LTD V. DAODU (1993)3 NWLR (pt. 281)372; THE REPUBLIC v. EDWARD OBINGA & anor (1965) ALL NLR 501 at 504.
In response to this, the Prosecution submitted that ‘the evidence of the P.W.1 was very clear in this regard. The P.W.1 maintained clearly in his evidence and statement to the police now Exhibit A that what he made at the Ezinihitte police station was an entry and not a formal statement. Thus there was no statement and the assertion of the defence that such statement was withheld is highly misplaced’.
I must say that the evidence of the PW1 is not as clear as that in this respect. Under cross examination he stated that
‘On this day this happened he did not report at the Police at Ezinifitte. He made statement at the Police at Eziniffite. He made the statement at Itu on 25-9- 17 being a Monday. He did not say in the statement that he did not know the Accused person’.
Again he had earlier in his statement of 27-11-17 stated:
“Consequently, the husband of Mrs. Chinyere followed me to the Ezinihitte Police Station where I went and made entry.”
Whether this was an entry or statement, no effort was made to procure or produce it. Most especially when the Accused’s counsel made request for its production. What offence did the PW1 report at the earliest opportunity at the Ezinifite Police Station?
The PW1 is saying that he made an entry and at the same time he made a statement. Although Itu Police Station, Ezinihite was mentioned severally, nobody from the Station was called to testify. I am of the view that the statement of a victim of crime immediately after the crime is very vital in criminal trials and even in further investigation. The PW2 was asked under cross examination: Did you make any statement at Ezinihitte Police Station and she answered “Yes”. Also the DW1 said ‘they were there when they called Police men from Itu who came and took them to the Police Station Itu and locked them up there.
He made a statement at Police station Itu and at Owerri’. It is certain that before the arrest of the Accused and after his arrest, statements/entries were made at the Ezinihitte Police Station.
Though extrajudicial statement of a witness is not evidence but such statements can be admitted for purposes of impeachment or corroboration of evidence of a witness on oath. I agree with the Accused counsel on the application of Section 167(d) of the Evidence Act that the said statement would not be favourable to the prosecution’s case if tendered and this has greatly prejudiced the case of the accused. For this principle to apply there are conditions that must be satisfied. In MUMUNI YUSUF v. THE STATE (2013) LPELR-22038(CA) the court stated:
“It was also held that before the presumption can operate, it must be shown and established that: (a) Such evidence existed, and (b) It was the party that withheld it. If it was shown as in this case, that the evidence is withheld, the question of who withheld it can hardly be relevant.” Per DENTON WEST, J.C.A (Pp. 36-37, paras. F-A) –
See also ADUN V. OSUNDE & ORS (2003) LPELR/EP-CA/B/108/2003, [2003] 16 NWLR (PT.847) where the court stated:
“I will agree that if there is a deliberate concealment of material fact or evidence by a party then he can be punished by invoking section 149(d) of the Evidence Act.Before this court can make use of the provisions of section 149(d) of the Evidence Act the following elements must be proved to exist:-
“(i) The evidence in question exists;
(ii) That it could be produced:
(iii) That it has been withheld by the person who could produce it. See Ayinda v. Adigun (1986) 3 NWLR (Pt.30) 511. See also Sule Oladejo Asariyu v. The State (1987) 4 NWLR (Pt.67) 709.”PER MUNTAKA-COOMASSIE, J.C.A. (Pp.25-26 paras. G-C)
In the instance case the Prosecution through the PW1 agreed there was an entry. In criminal trial evidence which would help the defence in the trial of an accused should be produced by the prosecution. See AHMED V. STATE (1999) LPELR-263(SC). The prosecution is the party that should produce it. The Prosecution having failed to so produce, I hold that if same is produced it will not be favourable to the Prosecution and this has greatly prejudiced the case of the Accused. In THE STATE V. OLASHEHU SALAWU (2011) LPELR-SC.11/2011 it was stated:
“The Prosecution did not explain the absence of the officers to give evidence in rebuttal. The court is entitled to hold that the evidence of the named policemen which could be, but was not produced, would if produced, be unfavourable to the case of the Appellant who withheld it. The same applies to the evidence that the Respondent spent two months in the hospital as a result of the torture he was subjected to in order to extract Exhibit 4 from him. The Appellant could have tendered his medical record from the hospital he was taken to and admitted. That evidence was withheld because if produced, it would have destroyed the Appellant’s case and proved that Exhibit 4 was not made voluntarily”
It is not in contention that the Accused was not arrested at the scene of crime. I had earlier reproduced the drama that led to his eventual arrest. On the confrontation by the PW1 at the earliest opportunity he maintained his innocence. The assertion of innocence continued and was buttressed by the decision to take an oath. The appropriateness or otherwise of this method of assertion of innocence is not the matter before the court.
On the first meeting with the father of the Accused, according to the PW1, he promised to replace the stolen motor cycle only if the PW1 will take an oath that it was his son, the Accused, that stole or robbed his motor cycle. According to the PW1, the father DW1 appointed a day for them. It was on this appointed day according to the PW1 that DW1 told him that he eat with his son and that he slept thereafter and did not come out because he was ill. That he should go and bring oath that he will swear on behalf of his son. That anybody who losses his thing use to bring oath for swearing.
At the King’s Palace, in the presence of HRH Eze Agunwamba, with their Nze, PW1 and others the issue of oath taking came up again. The day fixed for oath taking on 25-11-17 he PW1 went there with Akpole John a vigilante. He came with oath material. He came with pot. The Accused came with his father and elder brother. It was at this point of oath taken that the Accused was apprehended. That was over two months after the robbery.
Since the Accused was not arrested at the scene of crime on the day of the crime, the prosecution is relying on the PW1 and PW2 who are said to be eye witnesses to the incident. In R. v Turnbull (1976) 63 CAR 132 at 137 – 138 it is stated that though it is trite that recognition may be more reliable than identification but when the witness is purporting to recognize someone whom he knows, the jury should be reminded (and the court should remind itself) that mistake in recognition of close relatives and friends are sometimes made. Meanwhile, in Wakala v State (1991) 8 NWLR (Pt. 211) 552 at 565 paragraphs F – H the court distinguished between identification parade and recognition and held thus:
“Identification arises when a total stranger commits a crime in the presence of one or more persons who made a statement to the police. In identification parade organised by the police, such an accused person is put in a line with other innocent people. Such a person is then asked to walk down the line and see which of those on the line, if any, he saw at the scene of crime. At the trial he should say what struck him about his features, appearance or the clothes he wore. This is quite different from the question of recognition. This arises when a person sees a well known man or woman, the accused, committing a crime. The story of such a person attracts a great deal of weight, if such a person reports the incident to the Police at the earliest opportunity. He should mention the name, and described where he lives or is usually seen, the features of the accused person and the clothes the accused wore at the scene of the crime.
In this case, could one say that it is evidence of identification or that of recognition? The prosecution, I believe is saying it was a question of recognition while the defence is saying there was need to have organized identification parade for the purposes of identification.
On the identification evidence, according to the PW1 when they got to Oparachi Ihitte his machine failed or broke down. Suddenly there was a motorcycle that passed them and he saw the Accused sitting on the motorcycle. He was the owner of the Motorcycle. He was being carried and sitting at the end. The time is 9 Pm. It is expected that this area will be dark. At that 9pm what light did the PW1 used in indentifying the accused person and that he is the owner of the motor cycle and was being carried and not the one driving. And he was able to identify him from the back. This aspect was not contained in the statement of the PW1 –Exhibit A.
Again at this point it was only the PW1 who was alert to recognize the Accused while the PW2 his passenger was not focused or was more focused on getting the PW1’s motor cycle working again. It all boils down to say that when the motor cycle of the PW1 broke down he was careful and observant of vehicles (motor cycles) that passed by and so was able to recognized the occupant of the motor cycle which he said suddenly passed him.
The PW1 went on to testify that as they were descending the hill a motor cycle was horning at them at the back ‘Pie pie pie’. So he cleared for them to pass. Instead of passing them, they double crossed him and with his light- headlight which is a halogen light he saw the Accused he was holding a shot gun. When he saw the gun he did not put off the motor cycle. He jumped off the Motorcycle and ran into the darkness. He does not have torchlight. Under cross examination he stated that he did not run to the same position or same direction during the incidence with the woman. Because immediately he saw the Accused with a short gun, he jumped. He did not even know how the woman went. The Accused person did not shoot at him.
Going by this evidence, at the point the PW1 jumped off the motor cycle, he was still carrying his customer and her two children on the motorcycle. He gave the impression that he had no opportunity to stop the motor cycle to enable the passengers to climb down. Was the motor cycle standing when he jumped off? If it fell down when he jumped off, did his passengers fall with the motor cycle? In that flipping moment, the PW1 was able to recognize the Accused as the person whose back he saw some moments ago. It should be noted that no evidence was given concerning the motor cycle which the PW1 saw and recognized also as belonging to the accused. The police made no effort to enquire about this blue colour daylong motor cycle which the PW1 alleged belong to the Accused. Was the light from the motor cycle able to illuminate the who environment to enable both the PW1 nad PW2 who ran to different directions to observe the scene.
In reference to the PW2, the PW1 said that the woman he was carrying told him that the boy’s face was familiar. That it appeared she knows the boy. To which he, the PW1 responded yes he knows the boy too. They use to call him Kiloshe. He told the woman he was carrying not to worry. He knows the boy.” In seeming corroboration, the PW2 testified: “PW1 now started shouting, crying. She now asked him whether he knows the Accused. She knows him by face but not by name. PW1 told her she should not worry that he knows him. That he normally drives on the road. He now called him that his name is Kiloshe. It is noted that in his earlier statement he never mentioned that the PW2 said she knew him by face or that he mentioned kiloshe to PW2.
In the heat of the incidence, I doubt if the PW2 who should be interested in parrying her children to safety will be concerned with taking note of the face of the person who according to her was armed and actually shot in the air. Meanwhile, the PW1 in his statement said that she (PW2) ran into the bush and hid herself. It is also noted that none of the eye witnesses talked about any particular feature of the Accused and particularly what he was wearing or they were wearing on that day in their statement to the Police.
In his statement of 27-11-2017, that is two months after the incident and about a year before he testified, the PW1 wrote: “—and I told the woman never mind that in know one of the Armed Robbers in person but I does(do) not known his name and address. He went on to write: “….and on that Sunday I saw one of the bad Armed Robbers on motor cycle and I showed the husband of Mrs. Chinyere who told me that it is the person his mind is telling him. That his name is Kiloshe as Nickname” it is also his evidence that: “—And the husband of the woman asked him what he said they call that boy. He told him they use to call him Kiloshe.”
It is noted that in the statement it was the Husband of PW2 Chinyere that told him that the Accused’s nickname is Kiloshe and in his evidence in chief it was he (the PW1) that told the husband of the PW2 that his (Accused) nick name is Kiloshe.
On how he got the real name of the Accused: in his statement he wrote: “….and I went to a shop where I met one Favour whom I asked if she knows who is Kiloshe and Favour asked me what happened and I told her that he snatched my motorcycle on gun point which she told me that the boy is found of snatching people motorcycle on gun point that his real name is Izuchukwu Onuoha and she directed me to his house
Neither the husband of the PW2 nor the Favour who, based on what they were told, identified or gave the name of the Accused to the PW1 was called as witness. Is there a possibility of these persons mistaking the identity of the person described to them? Though, the PW1, in his evidence in chief, stated: And the husband of the woman asked him what he said they call that boy. He told him they use to call him Kiloshe. He used to wear ring. He used to paint his eyes and plait his hair. This was missing in his statement to the police. There is no evidence affirming that at the time of arrest or any time thereafter the Accused was wearing a ring, plaited his hair or painted his eyes. This evidence would have qualified as that of recognition had the PW1 and PW2 followed what was stated in Wakala v State (supra) thus: “The story of such a person attracts a great deal of weight, if such a person reports the incident to the Police at the earliest opportunity. He should mention the name, and described where he lives or is usually seen, the features of the accused person and the clothes the accused wore at the scene of the crime.” In Musa v State (1996) 8 NWLR (Pt. 468) 610 at 618 – 619 paragraphs H – A the court stated:
“I have no hesitation to accept the version of the evidence of PW2 that when she woke up, she saw someone standing in front of the bed of her late husband, but the time available and visibility situation in the room at the time in my view will raise some questions as to the accuracy of the identification. The witness clearly stated in her evidence that, she did not increase the light of her lantern until the person whoever it was had run out of the room. Her identification was therefore solely based on the light of torchlight being held in the mouth of the person she saw. The position of the light coming from the torchlight and the brightness of the light in my view are major factors to be considered in the assessment of the situation. In the circumstances, I find it difficult to give this piece of evidence the vividness the learned trial Judge accorded to it. In this regard this will weaken the veracity of the identification.”
The trial Court must satisfy itself that there is no error in identification, or case of mistaken identity. Towards this aim, the court should then examine closely the circumstances in which the identification came to be made particularly the length of time, the distance, the light, the familiarity of the witness with the accused.
Coupled with the above, is the time lapse in making a statement to the Police which I had earlier reiterated. In Tsaku & 7 Ors v. The State (1986) 1 NWLR (Pt. 17) 516 at 530 the Court per Akanbi stated:
“… when an eye witness omits to mention at the earliest opportunity the names of the persons he said he saw committing an offence, a Court must be careful in accepting his evidence given later and implicating other persons, unless a satisfactory explanation is given as to why the names were not mentioned before”. See also C.O.P. V. TIJANI ALAO & ANOR (1959) WRNLR 39 AT 40 IDAHOSA V. THE QUEEN (1965) NMLR 85 AT 88
In Nnunukwe v State (2003) 14 NWLR (Pt. 840) 219 at 224 the Court of Appeal rightly held inter alia:
“the court will not rely on the evidence of a witness who testifies that he was an eye witness who failed to report what he saw to the Police until two months after the incident.”
I cannot give this evidence of the recognition the vividness and accuracy the prosecution wants to ascribe to it.
This brings us to the defence of Alibi. Where the prosecution through evidence was able to fix the accused at the scene of crime, the evidence of alibi may palter to insignificance. In IKECHUKWU SUNDAY V. THE STATE (2010) LPELR-1470(SC), (2010) 18 NWLR (PT.1224) 223 it is stated:
“A plea of alibi by an accused person simply means that he was “elsewhere” at the time of the alleged offence. If therefore the prosecution can lead strong and positive evidence which fixes the accused person at the scene of crime and which evidence the court accepts the alibi naturally collapses. See the cases of ADEKUNLE vs STATE (1989) 5 NWLR (part 123) 505 at 513; PATRICK NJOVENS & ORS vs THE STATE (1973) 1 NWLR 331.” Per TABAI, J.S.C (P. 28, paras. B-D).
In the same vein, the mere fact that the evidence of alibi is rejected is not automatic corroboration of evidence of identification. Thus the learned author of Archbold Pleading, Evidence and Practice in Criminal Cases, 41st edition at page 899 stated:
“The jury should be reminded that proving the accused had told lies about where he was at the material time did not by itself prove that he was where the identifying witness said he was
In his evidence in chief the PW1, stated that the Accused said that the day the Motorcycle got lost he was sick. It was the first time he and his father eat together in one place since his father gave birth to him. Also in his evidence in chief he stated The man changed his statement that since he gave birth to his son that he has never collected anything belonging to another person before. Also the night that the event happened that it was the first day he eat with his some since he gave birth to his son. That after eating the boy went to his room to sleep. He did not come out again because he was ill. That he should go and bring oath that he will swear on behalf of his son. Under cross examination he stated that in his statement he told the Police that when he confronted the Accused, the Accused told him on the night of the alleged incidence he was eating with his father and after eating he went to sleep. The PW1 statement was admitted as Exhibit A.
The PW1 had earlier in his evidence in chief stated: “The Accused said that the day the Motorcycle got lost he was sick. It was the first time he and his father eat together in one place since his father gave birth to him. In the defence counsel’s written submission, it is submitted that the accused person was not arrested at the scene of the alleged crime and he took the earliest opportunity when confronted to state where he was on the day and time of alleged incident. Referred the Court to evidence of PW1 on 2nd and 16th October 2018, Evidence of DWI on 26th March 2019, and evidence of DW2 on 7th May 2019. Exhibit C (Statement of DWI to the Police) clearly raised the plea of alibi.” The Police failed to investigate the plea of alibi raised by the accused person who gave the necessary information as to where he was at the time of the alleged incident. Referred to OWOBU v. THE STATE (2015) ALL FWLR (Pt. 762)1668 @1689. It is submitted that where, as in this case, an accused person has raised an alibi and clearly stated his whereabouts before the trial Court and the prosecution failed to take any step to verify or disprove it, the Court will be right to hold that the prosecution failed to prove its case beyond reasonable doubt.
The state on its part stated: It is submitted that the accused person did not state or plead his whereabouts at the earliest possible time. The statement of the accused person which he admitted he made wholeheartedly now Exhibit B. did not disclose any alibi in order to afford the police the opportunity to investigate the alibi during the investigation of the case. It is submitted further that, what the accused stated in evidence in court during trial as D.W.2 cannot qualify as an alibi in line with the above standard established by the Supreme Court. It is trite to point out that, what the defence relies on as their alibi is the testimony and statement of the father of the accused person who testified as the D.W.1. The statement of this D.W.1 made on the 18th day of December 2017 now Exhibit C, suggested that the accused person slept and ate with the D.W.1 on the day of incident as the accused person was ill. This cannot qualify for an alibi.
What the defence of Alibi is, its effect and proof has been clearly stated in the case of ABUBAKAR v. STATE (2019) LPELR-47046(CA) where it is stated:
“Alibi is a form of defence which literally, means “elsewhere”. It is a defence where an accused person alleges that at the time when the offence with which he is charged and committed, he was elsewhere. See Ozaki v. State (1990) 1 NWLR (Pt. 124), 109. An alibi, if successfully raised wil afford a complete defence to a charge. To succeed on a plea of defence of alibi, the accused must raise it timeously, that is to say at the earliest opportunity presented to him. See Ebenehi v. The State (2008) 5 NWLR (Pt. 1138) 431, 444; Oguagun v. State (2013) 5 NWLR (Pt. 1347) 360. Once a plea of defence of alibi is raised, the Police investigating the offence for which the accused person is charged, is duty bound to investigate it, and put in evidence the result of that investigation at the trial: Ukwunneny v. State (1984) 4 NWLR (Pt. 114) 131, it is not for the accused person to lead evidence to establish or prove his defence of alibi. This duty is for the prosecution to confirm or disprove the plea of alibi. Failure of the police to investigate alibi put up could raise reasonable doubt in the mind of the Court and could lead to an order of discharge and acquitted of the accused person. Onuchukwu v. State (1998) 4 NWLR (Pt. 547) 576; Onafowokan v. State (1987) 3 NWLR (Pt. 61) 538. The Court, where evidence has been placed at trial has a duty to consider the defence of alibi, whether raised formally or informally.” Per HUSSAINI, J.C.A. (Pp. 12-13, Paras. D-E)
Form this case and other decided authorities; it is clear that an accused person who wants to raise the defence of alibi must state so at the earliest opportunity when he is confronted with the allegation of crime. Where the Accused fails to raise this at the earliest opportunity, it will water down the efficacy of the defence. This is because the prosecution would have been denied the opportunity to lead evidence to specifically rebut the defence.
The only obligation placed on the Accused is to raise the defence by stating the time, place and person/people he was with at the particular time in question. In KAMORUN ALIMI ADIOS V. THE STATE APPEAL NO.SC.120/1985 it is stated:
“It is a well established principle of law that once an alibi has been raised the burden is on the prosecution to investigate it and rebut such evidence in order to prove the case against the accused beyond reasonable doubt. See Adedeji v.The State (1971) 1 All N.L.R. 75.” PER S. KAWU, J.S.C.
In Ifejirika v. State (1999) 3 NWLR (Pt. 593) 59 at 78 paragraph E the Court stated:
“The burden on an accused person to establish his alibi is not as heavy as that which lies on the prosecution in criminal cases. The burden is one which is to be discharged by preponderance evidence of probability as in civil cases”
See also Ntem v. The State (1968) NMLR 86 Njovens v. The State (1973) 5 SC 17 at 66, Nwosis v. The State (1976) 6 SC 109, Odidika v. the State (1977) 2 SC 21
I find persuasive the decision in S V MALEFO EN ANDERE 1998 (1) SACR 127 (W) AT 158A – E where the court set out five principles with respect to the assessment of alibi evidence thus:
- There is no burden of proof on the accused to prove his alibi.
- If there is a reasonable possibility that the accused’s alibi could be true, then the prosecution has failed to discharge its burden of proof and the accused must be given the benefit of the doubt.
- An alibi must be judged by the totality of evidence and the court’s impressions of the witnesses.
- If there are identifying witnesses, the court should be satisfied not only that they are honest, but also that their identification of the accused is reliable.
- The ultimate test is whether the prosecution has furnished proof beyond a reasonable doubt — and for this purpose a court may take into account the fact that the accused had raised a false alibi.’
In the circumstances of this case, the fact remains that there is evidence of alibi. Irrespective of by whom it was raised, I still think the prosecution had the opportunity to have tested its veracity. The court is bound to consider the evidence of alibi whether raised formally or informally. Indeed the Court has a duty to consider all defences raised or are apparent on the record of evidence led in the Court; see ABDULAHI ADA V. STATE (2008) 4 SCNJ 285; USMAN KAZA V. THE STATE (2008) 2 SCNJ 373. For whatever it is worth, a court of justice is expected to consider defences such as the defence of alibi raised at trial. See: AKPABIO V. STATE (1994) 7 NWLR(PT. 359) 635; AKPAN V. STATE (2016) LPELR-40113 (SC); ADA V. STATE (2008) 13 NWLR (PT. 1103) 149; ORISA V. STATE (2018) LPELR-43896 (SC).
The accused will be entitled to an acquittal where the alibi is reasonably possibly true, based on the all the evidence presented to the court. See also S V MASILO 2013 JDR 2053 (FB) AT PARA 15.
In relation to the defence of alibi, the PW4, the IPO when asked: “Did he tell you where the Accused was on the day and time of the alleged incidence? He replied: “Yes. He volunteered a statement”. He was further asked: “He told you he was eating with the Accused that evening. And he replied: “Everything he stated is in his statement. When asked specifically if the Accused told him that on that day he was with his father which was confirmed by the PW1, he repeated that everything that the Accused person stated that day as his statement was what he recorded
It is my view that if the court is enjoined to consider every evidence disclosed on the face of the court record, the Police is equally enjoined to consider and investigate every lead apparent to it in the cause of investigation to reach a balanced and deep conclusion in investigation.
The investigation in this case was most shoddy. It does appear that all that the police did in this matter was to record the statement of the Victim, the Accused and the statements of the PW2, PW3, DW1 and also visited the scene and house of the Accused. On the visitations nothing incriminating was recovered from the Accused
The PW4 evidence is that on getting to the Control Room he saw the Accused, the victim- PW1 and one John Okwuole- PW3 a security man from Ezinihitte. The Accused person, victim and PW3 were handed over to me for investigation. I recorded the statement of PW3. I issued medical report form to PW1 for medical attention. The PW1 was full of blood and was down in health. The Accused person removed his left ear. In the process of identifying him before security men. This is contrary to the PW1’s evidence that he did not follow the accused to the police at Owerri on 25th September 2017. Where did the PW4 then see PW1 full of blood and down with health on 25th November 2017? Which hospital/doctor treated the PW1 and where is the medical report issued to the PW1? At least documentary evidence would have helped to clear the inconsistency as to whether the PW1 was at the police station on the 25-11-17 or not.
In Aigbadion v. State (2000) 7 NWLR (PT 666) 686 at 700 paras D – F Uwais, CJN as he then was condemned this shoddy approach in very strong language as follows:
“It is pertinent to mention that the investigation of this case by the police, that is PW1, leaves much to be desired. The accused said in his statement Exhibit A that his co-tenant helped him together with the taxi driver to carry the deceased to the taxi. Attempt to trace the co-tenant was half-heartedly carried out. The mother of the so-called co-tenant stayed in the same house as the appellant and she said that the „co-tenant‟ lived elsewhere and used to visit her only. No further effort was made by the police to trace him. Again, the appellant mentioned Johnbull in the same statement. No serious investigation about this was conducted to find out if he existed; and if so, whether he issued patient’s registration card to the appellant. It seems also the appellant was not asked by the police to produce the card which he said was issued to him by Johnbull, if at all. The taxi driver concerned could have been traced too by the police officer to confirm if deceased was alive when she was put in his car but no evidence was given if this was done. All these are necessary steps which ought to have been taken if the prosecution was to prove their case against the appellant beyond reasonable doubt. In other words, the investigation of the case was shoddy and incomplete. Any defence put up by an accused person whatsoever whether stupid or spurious must be investigated thoroughly in other to render it false or unlikely. It is when this happens that the trial court will be able to reject it.‟
In Maiyaki V. State (2008) 3 NWLR (PT 1075) 429 at 449 B – D, Bulkachuwa, JCA (as he then was, now the PCA) held as follows:
“A close look at the testimonies of the PW1 and PW2 shows that they were testifying as the investigating police officers who came into the matter after the death of the deceased or the commission of the offence. All they did in investigating the matter was to visit the scene, and recover the 3 empty shells of ammunition at the scene, register same, as exhibits and record the statement of the appellant and witnesses. PW2 in effect recorded a confessional statement of the appellant (exhibit C) and had it endorsed by a superior officer ASP Yusai Dalma and arraigned the appellant before the court on 31/8/2004.The testimonies of the two witnesses particularly under cross examination are hearsay based on what they recorded in the statements of the appellant.”
See also ADEOYE ALIU v. THE STATE (2014) LPELR-23253(CA)
In the present case there are witnesses that ought to have been traced, their statements recorded and even called to give evidence. KUMAI BAYANG AKAAHS JSC in OSUAGWU V S (SC.457/2012)[2016] NGSC 1 (1 JULY 2016) (SC.457/2012) [1960] NGSC 1 (30 JUNE 2016) admonished that the:
“Police must be meticulous with their investigation and not engage in sloppiness which will lead to criminals getting off the hook because of tardiness in carrying out their primary function of investigation and prevention of crime.
Where there are flaws regarding the identity of the Accused at the locus crimins, it must be resolved in favour of the Accused. OLUWASEGUN V. STATE (2017) LPELR-43705(CA). Also where an alleged crime has not been proved beyond reasonable doubt, any lingering doubts must be resolved in favour of the accused person. See KALU V. THE STATE (SUPRA), OKONJI V. THE STATE (1988) 1 NWLR (PT.52) 659. The third ingredient, that the accused person partook in the armed robbery, was not proved beyond reasonable doubt, as ordained by the law, against the Accused. He is accordingly discharged and acquitted of the charge of Armed Robbery against him.
I so hold.
I.M.Njaka
Judge
10-12-19