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

The charge against the appellant read:Okolo Achemoye presently standing trial in this honourable court, on or about the 29th day of November 1998 at Akumaji in Ibaji Local Government Area of Kogi State caused the death of Alhaji Umoru of Okumaji Ibaji by doing an act to wit: by drowning and cutting off his head […]

The charge against the appellant read:
Okolo Achemoye presently standing trial in this honourable court, on or about the 29th day of November 1998 at Akumaji in Ibaji Local Government Area of Kogi State caused the death of Alhaji Umoru of Okumaji Ibaji by doing an act to wit: by drowning and cutting off his head with the knowledge or had reason to know that death would be the probable consequence of your act and you thereby committed an offence punishable under section 221 of the Penal Code.
That you Emmanuel Egwemi and others presently at large, namely David Nwadike, Boyi Nyekwewu, Raphael Boyi, Joel Boyi, Udalor Uchegwe, Thomas Anayi, Edogo Nnaye and Okolo Achemoye presently standing trial in this honourable court, on or about the 29th day of.
November 1998 at Akumaji in Ibaji Local Government Area of Kogi State caused bodily pains to Madam Ramatu Umoru by beating her to a plump (sic) leading to her hospitalization and you thereby committed an offence punishable under section 245 of the Penal Code.
That you Emmanuel Egwemi and others presently at large, namely David Nwadike, Boyi Nyekwewu, Raphael Boyi, Joel Boyi, Udalor Uchegwe, Thomas Anayi, Edodo Nnaji and Okolo Achemoye presently standing trial in this honourable court, on or about the 29th day of November 1998 at Akumaji in Ibaji Local Gvoernment Area of Kogi State, caused destruction to the properties of Alhaji Umoru Bamayi his wives and children and you thereby committed an offence punishable under section 327 of the Penal Code.
The 1st head of charge is Criminal Conspiracy contrary to section 97 of the Penal Code.
The 2nd head of charge is culpable homicide contrary to section 221 of the Penal Code.
The 3rd head of charge is voluntarily causing grievous hurt contrary to section 245 of the Penal Code.
The 4th head of charge is Mischief contrary to section 327 of the Penal Code.
Trial commenced on the 16th day of July 2003 before an Anyigba High Court in Kogi State. S.T. Hussaini, J presided. The appellant/accused person entered not guilty pleas to the four counts preferred against him. The prosecution called seven witnesses. The accused person gave evidence. He called two witnesses. Documents which included the appellants statement were admitted as exhibits.
In a well considered judgment delivered on the 16th day of December 2004 the learned trial judge found the accused person guilty of counts 1st, 2nd and 4th (the 3rd count was abandoned by the prosecution) in these words:
And so the appellant was sentenced to death by hanging. Dissatisfied he lodged an appeal. The appeal was heard by the Court of Appeal Abuja Division. That court affirmed the judgment of the trial court and observed in the concluding paragraph of the judgment thus:
“In conclusion I have not seen anything upon which I can disturb the findings, decision, conviction and sentence on the appellant and so I dismiss this appeal which lacks merit. I uphold the decision, conviction and sentence of the court below.”
This appeal is against that judgment. In accordance with Rules of this court briefs were filed and exchanged by counsel. Learned counsel for the appellant filed an appellant’s brief on the 24th day of January 2011 and a Reply brief on the 1st of April 2011. Learned counsel for the respondent filed the respondent’s brief on the 8th of March 2011.
Learned counsel for the appellant formulated six issues for determination. They are:
1. Whether the Court of Appeal was right in relying on the precis of the statement of the appellant tendered and admitted as exhibit YY to hold that the appellant did not give the kind of details of the alibi which could have demolished the accusations on him of having committed the crimes for which he was charged, convicted and sentenced.
2. Whether the Court of Appeal was right in upholding the rejection of the defence of Alibi put forward by the appellant.
3. Whether the learned justices of the Court of Appeal were not in error when they held that the prosecution proved its case beyond reasonable doubt notwithstanding the material contradictious in the evidence of the prosecution witnesses.
4. Whether PW1, PW2, PW3 and PW6 were not tainted witnesses with their own interest to serve.
5. Whether the Court of Appeal was right in holding that the appellant was sufficiently identified having regard to the evidence of identification before the court.
6. Whether the learned trial judge did not err in law in assuming jurisdiction and entertaining the charge of criminal conspiracy culpable homicide punishable with death and mischief against the appellant.
On his part learned counsel for the respondent formulated five issues for determination. They are:
1. Whether there were material contradictions in the evidence of the prosecution’s case such that the prosecution could not be said to have proved the charges against the appellant beyond reasonable doubt.
2. Whether PW1, PW2, PW3 and PW6 were tainted witnesses with their own interest to serve.
3. Whether the Court of Appeal was right to hold that based on the evidence of identification before the lower court, the appellant has been properly and sufficiently identified by the prosecution witnesses.
4. Whether the learned justices of the Court of Appeal properly considered and rejected the appellants plea of Alibi.
5. Whether the learned trial judge rightly assumed jurisdiction over the charge of murder and other offences against the appellant.
THE FACTS
On the 29th day of November 1998, a mob armed with dangerous weapons to wit: cutlasses, knives, guns set out for the house of Alhaji Umoru Bamayi (deceased). The mob was made up of several persons and the appellant was one of them. The mob came from Itoduma village. Alhaji Umoru Bamayi lived in Okumayi. Both villages are in Kogi State. Seeing the mob approaching PW1 and PW2, children/close relations of Alhaji Umoru Bamayi ran into the bush beside their father’s house where from their vantage position they saw events unfold. PW3 in the compound beside Alhaji Umoru Bamayi’s house corroborated the testimony of PW1 and PW2 as he also saw the attack. On arrival the mob beat up Alhaji Umoru Bamayi so bad. He was shot, his hands were tied, then he was bundled off to a nearby river. His wife who pleaded with the mob to spare her husband’s life suffered a similar experience. She was badly beaten. At the river the mob submerged his body and drowned him, he was brought up. The appellant cut off his head and made away with it in full view of PW6. This was indeed a brutal and savage attack better imagined, but it was real. It happened.
Issues 1 and 2 would be taken together since they are on Alibi. I hereby reproduce both issues.
1. Whether the Court of Appeal was right in relying on the precis of the statement of the appellant tendered and admitted as exhibit YY to hold that the appellant did not give the kind of details of the alibi which could have demolished the accusations on him of having committed the crimes for which he was charged, convicted and sentenced.
2. Whether the Court of Appeal was right in upholding the rejection of the defence and Alibi put forward by the appellant.
Learned counsel for the appellant observed that there was nothing in exhibit YYI, the statement of the appellant to show that there was compliance with Section 36(6) (a) of the Constitution.  He submitted that in the absence of compliance exhibit YYI is unconstitutional, worthless, null and void. On Alibi learned counsel submitted that the investigating Police Officers failed to investigate the appellants defence of Alibi and both the learned trial judge and the Court of Appeal were wrong to reject it. Relying on Fatai Adele v. State 1995 2 NWLR pt.377 p.269 Ifeanyi Chukwu v. State 1996 7 NWLR pt.463 p.686.
He submitted that the Police has a duty to strictly investigate an alibi in order to approve or disprove it, but in this case the Police failed woefully to investigate it. He urged this court to resolve this issue in favour of the appellant.
Learned counsel for the respondent observed that the alibi set up by the appellant was by its very nature incapable of investigation because of its improbability of the facts and in such a case it will not be necessary to investigate. Relying on;
Ukwunenvi v. State 1989 7 SCNJ p.34
Udoebre v. State 6 NSCQR p.755 at p.770
He submitted that the appellant failed to discharge the evidential burden on him in setting up his defence of alibi, contending that issue of alibi is tenuous, an afterthought. He urged this court to dismiss this appeal and affirm the judgment of the Court of Appeal.
Learned counsel for the appellant complains that there was nothing in exhibit YYI to show compliance with the provisions of section 36 (6) (a) of the Constitution. It states that:
“(6) Every person who is charged with a criminal offence shall be entitled to-
(a) be informed promptly in the language that he understands and in detail of the nature of the offence.
Section 36 (6) (a) of the Constitution applies to trials, and it to the contents of an accused person’s Statement. An accused person who does not understand the language of the court, and is not represented by counsel must be provided with an interpreter. Failure to provide an interpreter would amount to a clear breach of his right to fair hearing and may render the trial a nullity. Where accused person is represented by counsel and there was no objection on the issue it would amount to a futile exercise to raise it on appeal. See Lockman v. State 1972 ALL NLR p.498.

To be continued