Alibi must be put at the earliest opportunity- Rhodes-Vivour

1. ALIBIWhen an accused person raises the defence of alibi what he is saying is that when the offence for which I am charged was committed I was elsewhere… The defence of alibi must be properly put at the earliest opportunity by the accused person and this would be when he has the opportunity to […]

1. ALIBI
When an accused person raises the defence of alibi what he is saying is that when the offence for which I am charged was committed I was elsewhere.
.. The defence of alibi must be properly put at the earliest opportunity by the accused person and this would be when he has the opportunity to make his statement to the Police. The offences for which the appellant was charged were committed on the 29th day of November 1998 at Akumaji in Ibaji Local Government Area of Kogi State. The alibi raised by the appellant was that between 1996 and 1999 he was at Bacita, and on 29/11/98 the day the offence were committed he was at Bacita. This testimony was corroborated by DW1, Christopher Eguche.
After examining the statement of the appellant the Court of Appeal found that:
“…………the defence of alibi cannot be considered in isolation from the evidence of participation in the crime charged whereas in this case the evidence of the prosecution witnesses has fixed the accused person at the scene of crime the alibi raised by him has been effectively demolished…………”
PW1, PW2, PW3 and PW6 are eyewitnesses to the part played by the appellant in the death of Alhaji Umoru Bamayi on the 29th of November 1998. PW1 was not cross-examined on his testimony that he saw the appellant among the mob that attacked and beat up the deceased on 29/11/98. PW2, PW3 and PW6 were cross-examined on this issue but they remained unshaken under cross-examination. Their evidence clearly fixes the appellant at the scene of the crime and the alibi fades into insignificance. With such overwhelming evidence the alibi is worthless and is clearly an afterthought. See
2. WHETHER PW1. PW2, PW3 AND PW6 ARE TAINTED WITNESSES.
Learned counsel for the appellant observed that the learned trial judge ought to have treated evidence of PW1 and PW2 with a high degree of circumspect, because they declared their unhappiness with Itoduma people, contending that they are tainted witnesses. He submitted that evidence of PW1, PW2, PW3 and PW6 demonstrated a complete lack of truthfulness and reliance on it by both courts below occasioned a gross miscarriage of justice to the appellant. Reliance was placed on Mbenu & anor v. State 1988 3 NWLR pt.84 p.615.
He urged this court to resolve this case in favour of the appellant.
Learned counsel for the respondent observed that there was no evidence before the lower court to show that PW1, PW2, PW3 and PW6 had interest to serve in giving evidence against the appellant. He submitted that taking all the circumstances and facts of the case together the said witnesses cannot be regarded as tainted witnesses. Relying on Ogunlana v. State 1995 5SCNJ p.189.
He urged on this court to resolve this issue in favour of the respondent.
On this issue this is what the Court of Appeal resolved the issue in favour of the Respondent.
3. IDENTIFICATION OF THE APPELLANT
Learned counsel for the appellant observed that the identity of the appellant is in doubt notwithstanding that evidence of PW1, PW2, PW3 and PW6 fixed appellant at scene of the crime. He submitted that failure to call Madam Ramatu Bamayi, the wife of the deceased who was also beaten up on the day in question, Chief John Okolo, and at least a neighbour of the deceased to corroborate the evidence of PW1, PW2, PW3 and PW6 was fatal to the prosecution’s case. Relying on Anyanwu v. State 1986 5NWLR pt.43 p.612. He submitted that for the identification of the appellant to be of any weight it should be supported by some other facts. He urged on us to resolve this ground as a fundamental basis for allowing this appeal.
Learned counsel for the respondent observed that PW1, Pw2, PW3 and PW6 knew the appellant very well before the incident.
It is also the case of the appellant that this is a case of mistaken identity as all the while he was identified as Emmanuel Nnoloka and not his correct name Emmanuel Egwemi. His case is that the wrong person stood trial and was convicted. Before I address this issue on identity I must say straightaway that an identification parade becomes necessary if there is grave doubt as to who committed the offence. In this case there is no need for an identification parade.
PW5 was not cross-examined on this material fact. That is whether it is true that the appellant is also Emmanuel Nnaloka. It must be elementary now that when a witness testifies on a material fact in controversy (in this case whether the appellant is also called Nnaloka) the appellant who denies it should cross-examine the witness to show the contrary. Where this is not done the court would be at liberty to take his silence as acceptance that he does not dispute the fact in the absence of cross-examination. I am satisfied that Emmanuel Nnaloka and Emmanuel Egwemi are one and the same person, In the light of overwhelming evidence the identity of the appellant was never in doubt. He was correctly identified as one of the mob who killed Alhaji Umoru Bamayi on 29/11/98.
4. JURISDICTION
Learned counsel for the appellant observed that the learned trial judge presided over Suit No: ID/26A/97 between Chief John Okolo and U. Ubaje and so had knowledge of the facts of the land dispute that led to the killing of the deceased. He argued that the learned trial judge ought to have declined jurisdiction on the ground of bias. Reliance was placed on Oyedeji v. Akinyele 2001 FWLR pt.77 p.790. He urged this court to hold that the learned trial judge wrongly assumed jurisdiction to entertain the charge/s.
Responding learned counsel for the respondent observed that the learned trial judge sat over a land matter involving nominal parties to this criminal charge/s and decided in favour of the complainant is not borne out by the Records. He observed that DW2 testified that a land dispute was decided by Grade 1 Area Court Idah (Suit No. CV/292/82.)
The Supreme Court said that a court is competent when-
1. it is properly constituted as regards members and qualifications of the members of the bench, and no member is disqualified for one reason or another; and
2. the subject matter of the case is within its jurisdiction and there is no feature in the case which prevents the court from exercising its jurisdiction; and
3. the case comes before the court initiated by due process of law, and upon fulfillment of any condition precedent to the exercise of jurisdiction.
Bias means anything which tends or may be regarded as tending to cause a judge to decide a case otherwise than on the evidence. See Jowitt’s Dictionary of English Law 2nd Edition
4. MATERIAL CONTRADICTIONS IN THE PROSECUTIONS CASE AND PROOF BEYOND RESASONABLE DOUBT.
Learned counsel for the appellant observed that the Court of Appeal erred in law in upholding the judgment of the trial court convicting the appellant despite the seeming irreconcilable and inconsistent evidence of PW1, PW2, Pw3 and PW6. Reliance was placed on Obidike v. State 2001 7 NWLR pt.743 p.601, Ahmed v. State 2001 8 NWLR pt.746 p.622
Responding learned counsel for the respondent submitted that the so-called contradictions are not material. Reliance was placed on Esangbedo v. State 1989 7 SCNJ p.1
The material facts in this case are:
1. When was Alhaji Umoru Bamayi killed.
2. How was he killed.
3. Who killed him.
It is only if there are contradictions in the testimony of the prosecution witnesses on the above that grave doubt would be cast on the prosecution’s case.
PW1 and PW2 ran into the bush beside the deceased’s house on 29/11/98 when they saw a well armed mob approaching the deceased’s house. The appellant was one of those who made up the mob.
I explained the mandatory requirement of proof beyond reasonable doubt as provided by section 138 (1) of the Evidence Act thus:
“Proof beyond reasonable doubt does not mean proof beyond all doubt, or all shadow of doubt it means the prosecution establishing the guilt of the accused person with compelling and conclusive evidence. It means a degree of compulsion which is consistent with a high degree of probability. Proof beyond reasonable doubt is not achieved by the prosecution calling several witnesses to testify. The court is only interested in the testimony of a quality witness, so long as the charge is not one that needs corroborations.”
There were no contradictions in the prosecution’s case worth considering. Consequently the case of the prosecution (respondent) is indeed unassailable.
Proof beyond reasonable doubt was easily attained.
A diligent review of the Record of Appeal reveals to my satisfaction that the judgment of the Court of Appeal affirming that of the trial court is unassailable.
These facts are not perverse. They are based on the evidence before the court. Concurrent findings of the courts below would in the circumstances not be upset by this court.
This appeal is dismally devoid of merit. I dismiss it.