Benson Esangbedo Vs The State (1988) LLJR-SC

Benson Esangbedo Vs The State (1988)

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NNAEMEKA-AGU, J.S.C. 

This is a further appeal by Benson Esangbedo against the confirmation by the Court of Appeal, Lagos Division, of his conviction by the Lagos High Court. The appellant and two others, who were discharged and acquitted at the conclusion of the trial, were charged on a three count information that on or about the 23rd day of April, 1983, at various addresses in Okota Village, Isolo, they and other persons unknown, armed with offensive weapons – pistol, cutlasses and axes – robbed Muyibatu Apena (P.W.1), Lizzy George Okon (P.W.2) and Lawal Amizu (P.W.3) of various sums of money and jewelry contrary to section 402(2)(a) of the Criminal Code, Laws of Lagos State, 1973.

At the conclusion of the trial, Obadina, J., discharged and acquitted the 2nd and 3rd accused persons, found the appellant not guilty on the 3rd count but guilty on two counts of the information and sentenced him to death. His appeal to the Court of Appeal was summarily dismissed by Ademola, J.C.A., (Babalakin and Awogu concurring) on the 8th day of February, 1988. The reasons for the judgment were given on the 2nd of March, 1988.

Four grounds of appeal were filed with his notice of appeal to this court dated the 7th day of March, 1988. His counsel, Chief C.J. Okoli, sought and obtained leave to file and argue two additional grounds of appeal in place of the original grounds 2 and 3. At the end of the day, the following issues were framed for determination by learned counsel for the appellant as arising from the grounds of appeal:

“(1) Whether the prosecution proved its case against the appellant beyond all reasonable doubts in the rebuttal of the defence of alibi set up by appellant. (Ground 1 of the Grounds of Appeal) (2) Whether the conflicts in the evidence of prosecution witnesses were material contradictions as would occasion miscarriage of justice if ignored. (Grounds 2 & 3).”

I think it is better to deal with the second issue first. Learned counsel for the appellant submitted that the evidence of the 1st, 2nd, 3rd and 4th prosecution witnesses upon which the learned trial Judge and the court below relied contained material contradictions which were sufficient to destroy their probative value. They differ in material particulars from the untendered statements which those witnesses made to the police.

The court should, in the interest of justice either look at those statements, as they have been copied in the record, or grant to the appellant leave to tender them as additional evidence in this appeal. In his brief, he drew attention to what he believed to be the conflicts between the statements and the evidence of those witnesses. Furthermore, he pointed out, there were some discrepancies in the evidence of P.W.3 and P.W.4 for, whereas P.W.3 testified that on the night of the robbery the appellant was wearing the same dress as he wore in court during the trial, that is, a yellow safari suit, P.W4 testified that the appellant was wearing a light blue shirt with trousers during the robbery.

Also, he submitted, there were contradictions among the police witnesses as to the circumstances of the appellant’s arrest. The investigating police officers said nothing about how he was arrested and this, in counsel’s contention, confirms the appellant’s story that he was arrested by a mob near his house and taken to the police station. P.W.9, Nuremi Bashiru, contrary to his extra-judicial statement, stated that a search party led by two police men surrounded a bush and were searching when appellant came out of the bush and was arrested. But there was no bush near where the appellant lived. The Divisional Police Officer, who admittedly never took part in the arrest, on the other hand, said that he was informed that the appellant was arrested at the scene of the robbery.

The learned counsel for the respondent replied to the above submissions. In the first place, he submitted that it is illegitimate to compare the testimonies of witnesses in court with their extra-judicial statements which were not tendered. Also, that P.W.3 did not observe any ear-rings on the appellant whereas P.W4 did cannot be regarded as a contradiction because the places and circumstances in which the two witnesses observed the appellant were different. He also submitted that the alleged contradictions, if proved at all, were not material.

In my opinion, the learned counsel for the respondent is correct. None of the two courses which the learned counsel for the appellant has urged onus can lawfully be undertaken. We cannot look at the extra-judicial statements of P.W.1, P.W.2, P.W4 and P.W.9, which were not tendered as exhibits during the trial because those statements cannot be legal evidence. An appellate court is bound to base its consideration of every appeal before it upon legal evidence upon which the court below acted. Even in the court of trial, the only proper use that could have been made of those extra-judicial statements of witnesses was to have used them for cross-examination of those witnesses in order to discredit their testimony – to show that their testimony in court was unreliable. In that case, it would have been necessary to tender the statements, to draw the attention of each witness to the portion of his previous statement that is in conflict with his instant testimony, and give him the opportunity to explain the inconsistency. See Christopher Onubogu v. The State (1974) 9 S.C. 1, at pp. 17-19; R. v Fraser & Anr. (1956) 40 Cr. App. R. 160, p.163. As that is the position, short of reopening the trial and recalling all the witnesses for cross-examination, I cannot agree that this court can put those statements to the use counsel has urged on us. It cannot properly compare the testimonies of those witnesses in court with their previous statements to the police which were not tendered. Even if it can, it would be impossible to recapture the situation wherein the witnesses could be cross-examined on those statements.

The alternative submission of the learned counsel for the appellant, that is, that this court should admit those untendered extra-judicial statements as additional evidence in this court is also subject to a valid objection. This is because assuming, but not agreeing, that they could be admitted under the undoubted powers of this court to admit additional evidence on appeal, they cannot now be cross-examined upon unless this court assumes the whole role of the court of trial. But even so, on the premises that a party which has obtained judgment in a court of justice is not to be deprived of the benefits of the judgment excepting on very solid grounds, admission of further evidence in this court is not allowed as a matter of course: it is only permissible on settled principles.

First: it must be shown that the evidence could not have been obtained and, with reasonable diligence, used at the court of trial. Secondly: the court must be satisfied that the evidence is such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive. Thirdly: the evidence must be apparently credible, though it need not be uncontrovertible. See on these: Asaboro v Aruwaji (1974) 4 S.C. 119, at pp.123-125; Chairman, Board of Inland Revenue v Rezcallah; Federal Board of Inland Revenue v Joseph Rezcallah & Sons Ltd. (1962) 1 All N .L.R. 1. It appears clear to me that learned counsel’s submissions are founded on the first of the above pre-requisites.

In Turnbull v Duval (1902) A.C. 429, the Privy Council held that a new trial will not be ordered where the fresh evidence is a document which could have been obtained by discovery during the trial proceedings.

Learned counsel has suggested in terms that this being a criminal, in fact a capital offence, this court should be liberal and in the interest of justice accede to the above requests. In my view, this appears to be a misconception of the essence of justice – to be another example of looking at justice from the point of view of the appellant alone, without any regard to the interests of the State and those of the victims of appellant’s wanton acts of terrorism which have led to the charge, trial and conviction. The interest of the appellant must be balanced with the interest of the victims of the robbery as well as the interest of the State as the keeper of public good. For, a necessary implication of the maxim interest reipublicae ut finis sit litium (it is in the interest of the State that there should be end to litigations) is that an appellate court ought not normally reopen issues of fact laid to rest at the trial unless they are shown to be perverse, illegal or not a proper exercise of judicial discretion. Similarly, a party who has won a case at the trial on the case brought to court by his adversary ought not normally be confronted with a new case on appeal simply because his adversary decided to bring forward his case in dribbles. See the Queen v Ohaka (1962) All N. L. R. 505. I do not think there is any difference in principle between civil and criminal appeals in the matter particularly as, in this case, the appellant was represented by counsel at the trial. I cannot accede to either request.

I must confess that, if the conflicts between the evidence of these witnesses in court and their extra-judicial statements to the police are as highlighted by the learned counsel for the appellant, then I do not see why the learned counsel in the court of trial did not try to examine the witnesses with those previous written statements of theirs. Strikingly, such a course by learned counsel in respect of the 2nd and 3rd accused persons contributed to their acquittal. As matters now stand the learned counsel for the appellant must have to take the well-known impotence of appellate counsel in such matters and do the best he can from legal evidence on record.

I shall, therefore, decide this case on legal evidence properly before the courts below. In so doing, I must disregard the so-called conflicts between the untendered extra-judicial statements of P.W.1, P.W.2, P.W.4 and P.W.9, the evidence of P.W.3 having already been treated as unreliable and this formed one of the bases of the acquittal of the appellant on the 3rd count of the information. For the reason that what P.W.10 stated about how the appellant was arrested was what he was told, I do not see how learned counsel could have used it to show that it conflicted with the evidence of P.W.9. The evidence of P.W.10 on the point is hearsay. I shall disregard it. It follows that the evidence of P.W.9 on the point is uncontradicted.

The conflict alleged to have existed between the evidence of P.W.3 and P.W.4 as to whether or not appellant was wearing any ear-rings during the robbery operation that night, a fact the learned trial Judge believed, raises an important point on credibility of witnesses.

Before it can be said that two eye witnesses called by a party have contradicted one another, it must be shown that both of them observed the particular fact in issue from the same circumstances and, depending on the nature of the fact, at the same time. Now, in the case in hand, the robbery on P.W.3 took place at No. 13 Fasasi Okotie Street, Okota, while that on P.W.9 was at No. 18 Apena Street. But that on P.W.4 was at No.5 Apena Street, Okota, Isola. It is not clear from the evidence how far the different houses were one from another. Moreover, P.W.3 said:

“I could not see any of them with ear-rings.”

He was not asked why he could not see any of them wearing any ear-rings. Above all, P.W.1 who also lives at No.6 Apena Street, where she was robbed stated:

“There was no ear-rings on the 1st accused when he came in but he took my own and put it on.”

From the state of the evidence, it appears that at the time when the appellant and his fellow culprits raided No.5 Apena Street, he had no ear-rings on. Then at No.6 Apena Street, he picked up some belonging to P.W.1. and put them on. Then he had them on when they visited the house of P. W.4. Faced with this evidence, I do not see how it can be said that P.W.3 and P.W.4 contradicted themselves on the point. They observed the appellant at different times and in different circumstances.

Nor can I say that, with the demonstration in court that the appellant had perforated ears, the learned Judge was wrong to have accepted the evidence of prosecution witnesses, P.W.1 and P.W.4, that they were able to identify the appellant with the ear-rings. The court can take notice that men do not normally perforate their ears and wear earrings. So when it turns out that a man wears ear-rings, it must be a very remarkable thing for his identification. Also all the eye witnesses stated that they also identified the appellant by his albinism. Every witness spoke of the yellow man among the gang. Each of them also testified that he was carrying

a gun that night whereas his accomplices were carrying cutlasses and axes. With these rather definite features in the identification, I would regard the minor discrepancy between the evidence of the 3rd and 4th P. W., as to the colour of the dress the appellant was wearing that night, some ten months before they were called to testify, as definitely minor. It is a matter of common knowledge that when certain incidents, such as robbery, take place, certain features in the whole scenario, such as the participation of a man wearing ear-rings or an albino or a man wielding the barrel of a gun, are bound to endure much longer in the mind’s eye than the type or colour of the dress which any of the participants wore.

Indeed when such minor discrepancies such as differences in the colour of dress do not occur in the testimonies of witnesses after an appreciable time lag (in this case, ten months) between the incident in question and the witnesses’ testimony, it is rather indicative that the witnesses have been tutored. I am of the view that bearing these points in mind, there is no material contradiction in the legal evidence before the court, that is to say, a contradiction of such a nature that it could discredit the testimonies of the eye witnesses to the robbery. See Asariyu v. The State (1987) 4 N.W.L.R. (Part 67) 709.

The first issue relates to the appellant’s defence of alibi. In sum, the learned counsel for the appellant has submitted that the duty on the appellant was to show that he was elsewhere at the time of the robbery and to give sufficient particulars of such a place. He had no duty to prove his innocence or his alibi. In his submission, he discharged that duty by stating that he slept with 7 P.W., Mr. Baiyesekemi, all through that night. As 7 P.W., confirmed this and the learned Judge came to a conclusion which amounted to his not being sure whether or not the appellant went out that night, he should have given a benefit of his doubt to the appellant. The onus on the prosecution was not to prove the fact that the appellant went out that night after he retired with 7 P.W., to a point of probability, as found by the learned trial Judge, but to prove it beyond reasonable doubt, he submitted. In support, he cited the case of Woolmington v D.P.P. (1935) 25 Cr. App. R. 72 at 95.

In his reply, the learned counsel for the respondent submitted that there was sufficient and stronger direct evidence in proof of the appellant’s complicity in the crime to falsify the defence of alibi. In support he cited the following cases: Mauhew Agu v The State (1985) 9 S.C. 221, at p.224. Patrick Njovens v The State (1973) N.M. L. R. 331. Joseph Okosun v. A.G. of Bendel State (1985) 11 S.C. 194; (1985) 3 N.W.L.R. (Pt.12) 283.

He also submitted that there was sufficient credible evidence of identification, which was believed, to link the appellant with the crime. He cited: The State v Aibangbee (1988) 3 N.W.L.R. (Pt.84) 548, at 588 and 550 in support. This court ought not to lightly regard the fact that there have been concurrent findings of fact on the points by both the High Court and the Court of Appeal. This cannot be set aside unless it is shown that it is perverse or that there has been a violation of some principles of law or of procedure: Oladiran v. The State (1986) 10 S.C. 165 at p. 175; (1986) 1 N.W.L.R. (Pt.14) 75, Mbenu v. The State (1988) 3 N.W.L.R. (Part 84) 615.

The nature of the submissions in this case makes it obligatory that I should make a consideration of the nature of burden of proof in criminal cases. For there appears to be some sort of confusion as to the true nature of burdens of proof – between the burden of proof and evidential burden in criminal cases.

For the avoidance of doubt, the expression “burden of proof’ is often loosely used to include the burden to prove the guilt of an accused person beyond reasonable doubt – a burden which is always on the prosecution and never shifts – and the burden of introducing evidence on an issue in the trial- which may be placed by law on either the prosecution or the defence. The former is called the persuasive, ultimate, or legal burden. This burden in a criminal case must be discharged beyond reasonable doubt. It is about this burden that the courts spoke in such cases as Woolmington v D. P.P. (1935) A.C 462 which was cited by learned counsel. See also Hycient Egbe v The King 13 W.A.CA. 105. As I stated, it is always on the prosecution. The latter, more appropriately called the evidential burden, is the burden of introducing, adducing or producing evidence on any particular issue at the trial. It could be placed on either party, depending on the issue. Where evidential burden is placed on a party on an issue and that burden is not discharged the issue can be resolved against the party without much ado. In that event, in a jury trial, the issue will not be left to the jury. In our system in which a Judge is Judge and jury, he can deal with the matter summarily. What is the position where an accused person has raised a defence of alibi In that case, the persuasive or ultimate or legal burden remains on the prosecution to establish the guilt of the accused beyond reasonable doubt, whereas the evidential burden of eliciting or bringing evidence about his defence of alibi is on the accused. In other words, pursuant to the ratio in the Woolmington case, where the House of Lords held:

“…while the prosecution must prove the guilt of the prisoner, there is no such burden laid on the prisoner to prove his innocence and it is sufficient for him to raise a doubt as to his guilt.”

it is still for the prosecution to prove the accused person’s guilt beyond reasonable doubt. But by the defence of alibi the accused person seeks to raise a doubt to what might have been a foolproof case of the prosecution by saying that he was somewhere else at the time the crime was alleged been committed at the scene of crime. As where he was at the material time is a matter especially within his knowledge, the law requires that for his defence of alibi to succeed in raising the doubt in his favour he ought to do certain things. He ought to raise that defence at the earliest possible opportunity.

In that defence, he ought to give such details and particulars of his whereabouts that the police can investigate. This is the evidential burden on him in his defence of alibi. See on this:

Akile Gachi & Ors v The State (1965) N.M.L.R. 333 at p.335;

Abudu v The State (1985) 1 N.W.L.R. (Pt.1) 55;

Nwabueze v The State (1988) 4 N. W.L.R. (Pt.86) 16, at p.34

Once an accused person raises his defence of alibi at the earliest opportunity and gives the requisite particulars of his whereabouts in respect of the defence of alibi, it is the duty of the police to investigate its truth. See on this:

Salami v The State (1988) 3 N.W.L.R. (Pt.85) 670 at p.693. It must be stated, however, that it is no part of the accused person’s duty to prove his alibi:

Adedeji v. The State (1971) 1 All N.L.R. 75;

Ozulonye v. The State (1981) 1 N.CR. 38.

What then happens where, on investigation the alibi is proved by the prosecution to be false, or not made out In other words, it is shown that the accused person has not discharged the evidential burden on him It is my view that, from an analogy of a jury trial in which failure to discharge an evidential burden on an issue by a party on whom such a burden lies entitles a Judge to decline from leaving the issue to the Jury, the Judge in our system who is Judge and Jury can consider but summarily reject such a defence. But he cannot refuse to consider it at all. In England, where an accused person failed to give notice of his alibi before his trial, as he was required to do by section 11 of the Criminal Justice Act, 1967, the Court of Criminal Appeal held that the trial court was in error to have excluded the evidence of alibi altogether on that ground: See R. v Jackson (1973) Crim. L.R. 356.

In the instant case, the appellant’s alibi was that at the time of the robbery, he was sleeping on the same family bed with 7 P.W., at a house in Okota, Isolo. But 7 P.W., obviously his close friend, after stating that they slept in the same room said that he (7 P.W.) slept on the bed whereas the appellant slept on a chair. 7 P.W., ended his evidence by stating that although he found the door locked when he woke up in the morning he could not say whether the appellant went out in the night. One may ask, why should the appellant choose to sleep on a chair while there was a family size bed available for just two of them. The reason may never be known, but a court is entitled to draw a reasonable inference. The contradiction between the appellant’s claim that he slept on the same bed and what emerged from P.W.7 is very material.

I must pause here to point out that it is not quite correct to regard 7 P.W., as a prosecution witness. He was not called by the prosecution but was merely tendered by them, as one of the witnesses whose names appeared at the back of the information, for cross-examination. He was indeed relied upon by the appellant in order to discharge the evidential burden on him, as much as his testimony was important for the prosecution to disprove the appellants defence of alibi. It is therefore, better to regard him as a common witness. What the prosecution was able to prove from the testimony of this witness is, therefore, that even the evidence of alibi put forward by the appellant has a big hole in it. So, he failed even to discharge the evidential burden on him.

In addition, the learned trial Judge further cocked the point where he held on the evidence before him:

“While I am not rejecting the evidence of the 7th P.W., it seems to me that since the two of them did not sleep on the same bed, the 7th P.W., could not say positively whether the 1st accused went out or not after he, the 7th P.W., had slept. Since they did not sleep on the same bed, there was nothing unnatural for any of them not to know if the other went out during the night.”

In short, the learned trial Judge found that the appellant did not discharge the evidential burden on him. In that case, he was entitled to have rejected the defence summarily.

The learned counsel for the appellant has submitted that the above finding amounts to saying that the learned Judge had a doubt about the guilt of the appellant. So, he argued that the benefit of that doubt should have been given to the appellant on the principle of the decision in Woolmington’s case (supra). In my opinion, this is mixing two different burdens, the burden of eliciting evidence for his defence of alibi, the evidential burden of which is on the appellant, and the burden of ultimate or persuasive proof which remains on the prosecution. As the appellant on the above finding did not discharge the evidential burden on him, there the matter should lie.

In my view, having considered the matter and found as he did, there was strictly nothing for the Judge to weigh against the evidence called by the prosecution in support of the ultimate or persuasive burden. Such a course as envisaged by the decision in Yanor & Anor. v The State (1965) N.M.L.R. 337,342 and similar cases would have arisen if the appellant had discharged the evidential burden on him. For such an evidential burden is not discharged where, as in this case, the prosecution is able to bore a hole or otherwise destroy the appellant’s evidence in support of the alibi. It is one thing to say that an accused person need not prove his alibi; but quite another to say that the evidence he has produced in support of the alibi must be consistent. Yet, inspite of the mutual contradiction in the evidence in support of the alibi, the learned trial Judge had to weigh it against the evidence called by the prosecution implicating the appellant. He held:

“In view of the overwhelming positive evidence of identification of the 1st accused given by the 1st, 2nd, 3rd, 4th and 9th P.Ws, and the nearness of the house of the 1st accused to the scene of the robbery, it is my view that the 1st accused went out during the night after the 7th P.W., might have slept. In the light of the evidence before the court, I hold the view that the 1st accused was only trying to deceive the court. He was just telling lies. I believe the evidence of the Prosecution Witnesses and hold that the 1st accused was at the scene of the crime and actually participated in the robbery. His defence of alibi accordingly fails.”

In my respectful judgment, even if the appellant discharged the evidential burden, the learned trial Judge approached the matter correctly and came to a correct conclusion on the point. For, the correct approach is not to find that the prosecution proved that the appellant probably or possibly went out in the night and stop there and hold that they have not proved their case beyond reasonable doubt, as learned counsel for the appellant has suggested. He should go further, as he did, and put that conclusion on the evidence of alibi against the evidence established by the prosecution tending to show that the appellant was present at the scene of crime. So, his defence of alibi cannot be considered in isolation from the evidence of his participation in the crime charged, as proved. In other words, the trial Judge came to the conclusion that even though he did not disregard the defence of alibi, for what it was worth, he had found that there was stronger evidence against it. That, in my opinion. Is a correct view of the law. See – Yanor & Anor v The State (1965) N.M.L.R. 337. p.342; Christian Nwosisi v The State (1976) 6 S.C. 109, p.112-113; Joseph Okosun v A.G. of Bendel State (1985) 11 S.C. 11 194; (1985) 3 N. W.L.R. (Pt.12) 283. I am satisfied that the defence of alibi was rightly rejected.

It is left for me to agree that on reading the evidence of the eye witnesses to the robbery – P.W.1. P.W.2, P.W.3, P.W.4 and P.W.9, one is left with no other impression but that they had no doubt about the identity and presence of the appellant at the scene of the robbery. They were believed on the point. As I have stated, they all identified the appellant with his albinism and his carrying a gun that night. P.W.1 and P.W4 identified him with the earrings; and P.W.1 explained how he got the ear-rings from her house and put them on. I agree with the courts below that there was very clear and strong evidence linking the appellant with the crime. These being concurrent findings of fact, I can only interfere if the findings are shown to be perverse or illegal or made as a result of an improper use of the opportunity of the court having heard and watched the witnesses testify.

See: Sobakin v The State (1981) 5 S.C. 75;

Oladiran v The State (supra);

Menu v The State (supra).

I have not been given, or by myself seen, any reason why I should interfere. An identification parade was unnecessary. For all I have said above, this appeal fails, and is dismissed. I affirm the judgments of Obadina, J., in the High Court and of the Court of Appeal, Lagos Division, and the sentence of death passed on the appellant.

OBASEKI, J.S.C.: I have had the advantage of a preview of the draft of the judgment just delivered by my learned brother, Nnaemeka-Agu, J.S.C. His opinions on all the issues raised in this appeal accord with mine and agree with him that the appeal fails and should be dismissed.

The two questions for determination in the appeal which are (1) whether the prosecution proved its case against the appellant beyond all reasonable doubts in the rebuttal of the defence of alibi set up by the appellant; (2) whether the conflicts in the evidence of the prosecution witnesses were material contradictions as would occasion miscarriage of justice if ignored, have been dealt with exhaustively in the judgment of my learned brother, Nnaemeka-Agu, J.S.C., and I hereby adopt his opinions as mine. I therefore hereby dismiss the appeal and affirm the decision of the Court of Appeal.

NNAMANI, J.S.C.: I had the advantage of a preview of the judgment just delivered by my learned brother. NNAEMEKA-AGU, J.S.C., and I entirely agree with his reasoning and conclusions.

The appellant and 2 others were in the High Court of Lagos charged with the offence of Armed Robbery. After hearing evidence and carefully considering the testimony of both the prosecution and defence witnesses, Obadina, J., on 19th August, 1985, convicted the appellant and sentenced him to death. The other two accused persons were discharged and acquitted. The appeal of the appellant to the Court of Appeal was dismissed hence the appeal to this court.

Learned Counsel to the parties, Chief C. J. Okoli and David Onycke, filed fairly well written briefs of argument and argued forcefully for their respective positions. In his own brief of argument, Chief Okoli set down the issues for determination as follows:-

“1. Whether the prosecution proved its case against the appellant beyond all reasonable doubts in the rebuttal of the defence of alibi set up by appellant (Ground 1 of the Grounds of Appeal).

2. Whether the conflicts in the evidence of prosecution witnesses were material contradictions as would occasion miscarriage of justice if ignored (Grounds 2 and 3).

The first issue was hinged on the claim of the appellant that on the night of the alleged robbery, he slept on the same bed and in the same room with his friend, P.W.7, and that he never went out that night. P.W.7 was not really a witness of the prosecution. He was rather provided by the prosecution for cross-examination. In his testimony, he said he slept in the same room with the appellant that night but he could not say whether he (the appellant) went out in the night. Contrary to the appellant’s testimony that both of them slept in a double family bed, P. W.7 said appellant slept on a chair. The door of the room was locked at night, and in the morning he still found it locked.

It is now trite that once an accused person discharges the evidential burden of introducing evidence of alibi, the onus of disproving it, and the general one of proving the guilt of the accused person beyond all reasonable doubt, lies on the prosecution. At the end of the case for the parties, the learned trial Judge will put the evidence of alibi against the evidence led by the prosecution. If there is any doubt in his mind, he will give the benefit of such doubt to the accused person. See Yanor v State (1965) N.M.L.R. 337: Njovens v State (1973) N.M.L.R. 331; Umani v. State (1988) 1 N.W.L.R. (Pt.70), 274, 284.

This was precisely what the learned trial Judge did in this case. He put the positive evidence of P.W.1, P. W.2, P.W.3, P. W.4 and P.W.9 as to the identification of the appellant as the leader of the gang of armed robbers against this conflicting evidence of P.W.7. The learned trial Judge rightly accepted the case of the prosecution. His decision on the alibi was a fair one considering the circumstances. He said at page 76 of the record,

“While I am not rejecting the evidence of the P.W.7. it seems to me that since the two of them did not sleep on the same bed, the 7th P.W., could not say positively whether the 1st accused went out or not after he, the 7th P.W., had slept. Since they did not sleep on the same bed there was nothing unnatural for any of them not to know if the other went out during the night. In view of the overwhelming positive evidence of identification of the 1st accused given by the 1st, 2nd, 3rd, 4th and 9th P.Ws and the nearness of the house of the 1st accused to the scene of robbery it is my view that the 1st accused went out during the night after the 7th P.W., might have slept.”

That concludes the first issue.

As to the second issue, Chief Okoli first sought to capitalise on a few contradictions in the testimony of P.W.1, P.W.2 and P.W.3 as to whether 1st accused was wearing ear-rings at the time of the robbery and what colour of dress he was wearing. There was also the contradiction between the testimony of P.W.9 and P.W.10 as to where the appellant was arrested.

The two lower courts looked at some contradictions and held them not material and I do agree with them. It would he strange if there were no minor differences in the accounts given by different victims of something as nerve racking as an armed robbery. Then Chief Okoli sought to attack the testimonies of P.W.1 and P.W.2 using some extra-judicial statements they had made, but which were never tendered in evidence.

Even he himself conceded that such statements could not be used at this stage. If they were needed, it could have been during the trial when they could have been used to discredit those witnesses. I think this appeal is without merit and I too, for these reasons and the more detailed reasons in the lead judgment, do dismiss it and affirm the conviction and sentence previously passed on the appellant.

Other Citation: (1988) LCN/2395(SC)