Maikidi Aliyu Vs The State (2013)

LAWGLOBAL HUB Lead Judgment Report

JOHN AFOLABI FABIYI, J.S.C.

This is an appeal against the judgment of the Court of Appeal, Kaduna Division (the court below) delivered on 14th July, 2006. Therein, the conviction and sentence of the appellant to death by hanging based on a charge of culpable homicide punishable under section 221 of the Penal Code by the trial judge of Katsina State High Court of Justice on 19th May, 1997, was affirmed.

It is apt to state briefly the relevant facts, which form the bed-rock of this appeal. By a charge dated 5th day of December, 1994, the respondent arraigned the appellant before the trial High Court of Katsina State presided over by Yusuf Ibrahim, J. for the offence of culpable homicide punishable with death under section 221 of the Penal Code on 4th July, 1995. The charge was duly read and explained to the appellant and he accordingly pleaded not guilty.

The facts as given by the prosecution are that the appellant, on or about 11th May, 1993 at about 5.30am, caused the death of one Junaidu Bala at Ingawa, Inagawa Local Government Area of Katsina State by stabbing him on the neck with a knife and caused him bodily injury which resulted in the passing on, of the deceased. At about 5.30 am on the stated date, the deceased in company of P.W.1 and P.W.2 and some others were on night patrol as members of a vigilante group. They confronted the appellant who, P.W.1 had earlier seen with some loads on his head but he disappeared. He was rearrested but as he was being taken to the Police Station, somewhere in a market place, the appellant dropped the loads he had on him down and ran away. P.W.1 pursued him and later apprehended him. During a struggle, the appellant brought out a knife and as he was cutting P.W.1, the deceased joined to rescue him despite warning by P.W.1 to deceased that the appellant had a knife. The appellant later used the knife to cut the deceased on his neck and he died immediately while the appellant ran away. The matter was reported to the police who later arrested him on 12th May, 1993 at Bindawa town, based on the information earlier supplied.

At the trial High Court, both sides adduced evidence.

The trial judge was duly addressed by counsel on relevant issues. In the judgment delivered on 19th May, 1997, the appellant was found guilty. He was convicted and sentenced to death by hanging. The appellant felt unhappy with the stance of the trial court. He appealed to the court below which heard the appeal and dismissed it on 14th July, 2006. Still dissatisfied with the decision of the court below, the appellant has finally appealed to this court.

In compliance with the Rules of this court, briefs of argument were filed and exchanged by the parties. On 21st March, 2013 when the appeal was heard, learned counsel to the appellant adopted the brief of argument deemed filed on 18th April, 2012 and urged that the appeal be allowed. On behalf of the respondent, learned DPP, Katsina State Ministry of Justice adopted the respondent’s brief and urged that the appeal be dismissed.

On behalf of the appellant, two (2) issues were formulated for determination of the appeal. They read as follows:-

“(i) Considering the state of evidence before it, whether the lower court was not wrong in resolving the issue (or defence) of alibi against the appellant.

Grounds 4 and 5.

(ii) Having regard to the manner in which the identification parade was conducted in this case, whether or not the lower court was right upholding the conviction and sentencing of the appellant by the trial court based on the evidence procured therefrom. Grounds 2 and 3.”

The respondent adopted the two issues decoded for determination by the appellant and replied to same seriatim.

Arguing issue 1 which relates to the plea of alibi, learned counsel to the appellant submitted that the issue of alibi which was raised timeously was not properly evaluated by the courts below. He felt that the whereabouts of the appellant on the 11th of May, 1993 up to 4.00am was properly accounted for by defence witnesses. He felt that the burden of proof is not on the accused and that the onus of proof is on the persecution to disprove the alibi. He cited the cases of Ifejirika v. The State (1999) 3 NWLR (Pt.593) 59 at 78; Aiguoreghian v. The State (2004) All FWLR (Pt.195) 716 at 737; Ozaki v. The state (1990) 1 NWLR (Pt.124) 92 at 109 and Onafowokan v. The State (1997) 3 NWLR (Pt.61) 538.

Learned counsel maintained that the prosecution failed to fully investigate the plea of alibi raised by the appellant. He submitted that the appellant was entitled to an order of acquittal.