Kenneth Ogoala V. The State (1991)

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P. NNAEMEKA-AGU, J.S.C. 

This is a further appeal from the judgment of the Court of Appeal, Lagos Division, which had dismissed the appeal of the appellant from his conviction by Desalu, J., of the Lagos High Court of the offence of robbery punishable under Section 402(2)(a) of the Criminal Code (Amendment) Law of Lagos State, 1980.

The facts of the case are not complicated. On the 6th of October, 1980, one Dr. Osborn Olumide Phillips (P.W.2) was to travel abroad from their house at No.72 Okepopo Street, Lagos. He was travelling to the airport in a Peugeot 504 Car of his friend, Olumuyiwa Ayanbule (P.W.1) which was actually driven by P.W.2 and his wife, Mrs. Phillips (P.W.3), sat beside him in the front seat. P.W.1 sat on the back seat.

On their way to the airport, Dr. E. Phillips stopped at No.25 Sylvia Street, in Anthony Village to see a friend, one Mr. Odukoya. As the car radio was on, he left the car engine running with the key in the ignition hole while P.W. 1 and P.W.3 were sitting in the car. Mrs. Odukoya came down from their house and started talking to Mrs. Phillips. She stood near the driver’s seat of the car, while conversing with P.W.3. Within five minutes, a Toyota car came from the opposite direction and stopped behind P.W.1 ‘s car. Then two persons; one said to be the appellant, armed with a cutlass and the other with a knife, emerged from the Toyota car.

The two women, P.W.3 and her friend, got frightened and managed to escape to a nearby house. The appellant also brandished a matchet on P.W.1 and he managed to make good his escape. Shouts of “ole! ole!” (thief! thief!) alerted Dr. Phillips on what was happening and he came down from his friend’s apartment. But before he could do anything, in a flash, the appellant’s companion, apparently still at large, got on to the driver’s seat of P.W.1’s Peugeot car and the appellant joined him and they drove away towards lkorodu Road. As the place was well-lit, Dr. Phillips as well as P.W.1 and P.W.3 each saw clearly a good part of the dramatic episode.

Not far from the scene of the robbery, the culprits ran out of luck. For they had run into and caused a chain collision around the junction of Anthony Village Road and lkorodu Road. In the meantime, P.W.1 and P.W.2 who had borrowed another friend’s car and set out in pursuit of the bandits arrived at the scene and found P.W.1’s car, snatched from them a short while before, badly damaged and among one of the cars in the chain collision, which involved three other cars. Then they observed that a man who was being beaten at the scene was the appellant, the same man who was brandishing a matchet beside P.W.1’s car a short while before. They, too, joined in beating him.

Later, the appellant was rescued and arrested by a policeman who took him, the drivers of the other three cars involved in the accident as well as P.W.1 and P.W.2 to Ilupeju Police Station where they made statements. The case of the appellant was later referred to Panti Street C.I.D. for further investigation. There Sergeant John Ibrahim, who testified as P.W.4, investigated the case. The appellant made a confessional statement under caution which he later confirmed before a superior police officer. This was tendered as Exhibit “B.”

After trial, the appellant was convicted. His appeal to the Court of Appeal, coram; Ademola and Kalgo, JJ.C.A. and Akpata, J.C.A. (as he then was) was dismissed. He has appealed further to this Court. Four grounds of appeal were filed by his counsel, Chief Milton Paul Ohwovoriole. Counsel on both sides duly filed their briefs. Arising from those grounds of appeal learned counsel for the appellant formulated the following issues for determination:

“1. Whether the learned Justices of the Court of Appeal were right in upholding the conviction and sentence of death on the appellant when they failed to properly consider the defence of alibi set up by the appellant as laid down in Yanor v. State (1965) 1 A.N.L.R. 193; (1965) N.M.L.R. 337.

2. Whether the learned Justices of the Court of Appeal were right in confirming the conviction and sentence of death passed on the appellant in the face of irreconcilable and contradictory testimonies of the prosecution witnesses in disregard to the principle of law enunciated by the Supreme Court in Arueyee v. State (1967) N.M.L.R.209 at 211.
3. Whether the learned Justices of the Court of Appeal were right in upholding the conviction and sentence of death passed on the appellant when the prosecution had failed to produce necessary and vital witnesses for the proof of its case at the trial.
4. Whether the learned Justices of the Court of Appeal were right in upholding the conviction and sentence of death on the appellant when infact the accused/appellant was not linked with the crime as no proper identification parade was ever conducted.
5. Whether the learned Justices of the Court of Appeal were right in confirming the conviction and sentence of death passed on the appellant when only a part of the alleged confessional statement Exhibit was relied upon without the other statement of the appellant obtained on the 6th of October, 1980 being tendered at the same time by the prosecution.
6. Whether the learned Justices of the Court of Appeal were right in confirming the conviction and sentence of death passed on the appellant when the evidence at the trial was not properly evaluated and the purported conviction and sentence were based on same.”

At the hearing, Chief Ohwovoriole adopted his client’s brief of argument. Miss T.O. Clark also adopted her brief for the respondent. On the defence of alibi, the learned counsel for the appellant submitted that the appellant had successfully established his defence of alibi particularly as the standard required of him is to do so beyond a balance of probabilities (Obiade v. The State (1970) 1 N.L.R.35). The Court of Appeal was further in error to have rejected the defence when they did not ask the appellant, as laid down in the case of Auzinawa v. Kano N.A. (1956) 1 F.S.C.26; (1956) SCNLR 77 whether he had any witness to call.

In my respectful opinion, the so-called defence of alibi said to have been raised by the appellant is a non-issue on the true facts of this case. The appellant stated that he left Ojota for Kirikiri town at about 7.30p.m. On the evidence of P.W.1, P.W.2 and P.W.3 the car in question was snatched from them in Anthony Village sometime between 8.30 p.m. and 9 p.m. the same day. Taking notice of the distance between Ojota and Anthony Village, as I am entitled to, it is quite possible and easy for one who leaves Ojota about 7.30 p.m. to arrive Anthony Village between 8.30 and 9 p.m. when the offence was committed. His statement, Exh. B., of course shows that that was the case.

Now the word “alibi” literally means “elsewhere.” When an accused person’s defence to a criminal charge is alibi he is saying that he was at another place at the time material to the charge: see Gachi & Ors. v. The State (1965) N.M.L.R.333. It is no proper way of raising a defence of alibi for an accused person to show that he was elsewhere at a time antecedent to the time the crime was proved to have been committed unless he can show that, because he was at that place at that time, it was impossible for him to have been at the scene of the crime when it was shown to have been committed.

It is of course when the defence of alibi has been duly raised and the accused person additionally discharges the evidential burden incumbent on him by giving the particulars of that other place where he was at the time when the crime was committed and of persons who can testify to his being there at the time that the duty to investigate and, at the trial disprove, the alibi is cast on the prosecution.

Once the alibi is duly raised and the evidential burden is discharged, the accused person has no duty to prove the alibi: it is part of the onus cast on the prosecution to disprove the alibi. See on these – Abudu v. The State (1985) 1 N.W.L.R. (Pt. 1) 55; Esangbeda v. The State (1989) 4 N.W.L.R. (Pt. 113) 57; and Ukwunnenyi v. The State (1989) 4 N.W.L.R. (Pt. 114) 131.