Chukwuma Ezekwe V. The State (2018)
LAWGLOBAL HUB Lead Judgment Report
EJEMBI EKO, J.S.C.
On 11th July, 2012 the Court of Appeal sitting at Owerri dismissed the appeal (No.CA/OW/88/2009) of the Appellant herein and affirmed the conviction and sentence of the Appellant imposed on him by the High Court of Imo State on 31st March, 2009 in the charge No.HOW38C/2006. The Appellant and two others were tried and convicted for the offence of murder punishable under Section 319(1) of the Criminal Code Law applicable in Imo State. The person allegedly murdered was one Mrs. Cecilia Ogbonna.
In the early hours of 30th November, 2005 some persons broke into the apartment of the said Cecilia Ogbonna. She was attacked and injured on her head and other parts of her body. She did not die immediately. The PW.1, Mrs. Grace Igwe, who had come to the house of the deceased around 5.00a.m for a prayer session heard the said deceased groaning in pains. The door was stapled from outside without padlock. The PW.1 forced the door open. The deceased was bleeding. There was blood all over the place.
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The PW.1, noticing she had stepped on the blood on the floor, raised the lantern she came with. She saw that the deceased bleeding, had multiple injuries on the head and all over her bare body. On inquiry, the deceased named the three accused persons, including the Appellant, as her assailants. The PW.1 then raised alarm.
The PW.1 had, earlier in her narration, given all the account of the lingering acrimonious relationship between the deceased, on one hand, and the 1st and 2nd accused persons and their mother, on the other hand. The Appellant was a tenant in the premises occupied by the 1st and 2nd accused persons and their mother, Ifeoma Okereke (Mrs.). The Appellant, who lived on the adjoining compound as a tenant also had his own portion of the acrimony with the deceased. He, in his statement, Exhibit E, alluded to the fact that deceased had earlier in November, 2005, accused him publicly of defecating at her backyard. Prior to this attack the deceased, according to the 1st accused (as DW.4) had accused, before the village elders, the Appellant and the 1st accused “of cutting her electric wires.”
The PW.1 was not the only person the deceased, after the vicious attack on her, had informed that it was the
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Appellant and the 1st and 2nd accused persons were the persons who forcibly entered her room, attacked her and inflicted the injuries on her head and body. The PW.2, a Police officer, was one of such other persons. The PW.2 recorded the deceased’s extra-judicial statement, Exhibit A, on 30th November, 2005, wherein she named the Appellant – “who is a tenant in our area,” as one of three men who forcing her door open, entered her room and started beating her and inflecting injuries on her head, shoulder and chest with sticks and machetes. The PW2 also a Police Officer, was present when the deceased made Exhibit A and told the Police Officers that it was the three accused persons, including the Appellant, who in the early hours of 30th November, 2005 attacked and inflicted injuries on her with sticks and machetes.
The PW.3 also testified that early in the morning of 30th November, 2005, before the arrival of the Police Officers, the deceased had told him and other neighbours that it was the named three accused persons who inflicted the injuries on her. PW.3 also testified, in corroboration of the Police Officers, that at the Federal Medical Centre, the deceased
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at her sick bed, while in pains, had told the Police Officers that the three named accused persons, including the Appellant, caused the injuries on her. The PW.2 is one of the tenants of the deceased. The deceased never recovered from the injuries. She died.
The PW.4, Dr. A. O. Egejuru, a Pathologist, who issued the Medical Report, Exhibit B, was quite categorical in Exhibit B that the cause of the death of the deceased in his opinion, was: Traumatic and haemorrhogic shock due to soft tissue injuries and subdural haemorrhoge with associated coming (sic) associated upon blunt injury to the head.” He observed on the corpse of the deceased that;
There are two separate cuts (lacerations) on the right side of the scalp (head) measuring 7.0 cm and 6.0 cm long respectively with associated bleeding under the head.
The defence of the Appellant was alibi. He called no other evidence, other than his own ipsit dixit to establish his defence of alibi that –
On 19th November, 2005 (he) travelled to (his) village to see (his) sick brother and – came back on 4th December, 2005, being Sunday and heard that thieves came to the madam’s house and beat her up that
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lead (sic) to her being admitted in the hospital. (He) also told that the woman said that (he) was among the people that came to her house in the mid night of 29th November, 2005 and beat her up that caused her harm. (He) did not go back to the village where (he) was living as Pa tenant – after hearing that the madam mentioned (his) name as one of the people that beat her up. (He) was afraid that is why (he had) not gone back to village. (He) also heard that Policemen were looking for (him) and (he) did not go to answer the Police because of fear. (He) was at I.T.C. Park on 5th December, 2005 when Police came and arrested (him).
The oral testimony of the Appellant, as DW.3, puts it beyond doubt that the Appellant and the deceased were very well known to one another. The learned trial Judge in his judgment found as a fact that “the deceased knew the accused persons very well and the accused persons also knew the deceased very well; that “all of them live in the same neighbourhood,” and that because there is no dispute about that, the case was not one of mistaken identity of the accused by the deceased.
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The only defence put up by the Appellant is alibi. The learned Judge, not impressed, dismissed the defence convicted the Appellant. This further appeal turns largely on facts; the issues canvassed for the Appellant being:
i. Whether the two Courts below properly evaluated the evidence of the prosecution in view of the plea of alibi raised by the Appellant; and
ii. Whether the learned trial Court was right to have picked and chosen which of the prosecution witnesses to believe and those not to believe, and in proceeding to convict the Appellant upon contradictory pieces of evidence adduced by the prosecution, which conviction was affirmed by the Court of Appeal.
The two issues, as I earlier stated, turn on whether the two Courts below were right in their concurrent findings of fact. It has to be borne in mind that the policy or attitude of this Court to the concurrent judgments of the Courts below on facts is that: it will not interfere with the findings made by the trial Court and affirmed by the Court of Appeal, as the intermediate Court, unless the findings are perverse or not supported by the evidence on the record: OGIDI v. THE STATE (2003) 9 NWLR (Pt. 824) 1; AJIBULU v. AJAYI
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(2004) 11 NWLR (Pt.885) 458. The onus is on the Appellant to establish the exceptions, or the exceptional circumstances, that would warrant this Court, the apex Court, to evaluate the evidence, the third time, in order to interfere with or disturb the two concurrent judgments on fact.
The Appellant’s Counsel in addressing this issue submits that the trial Court in its judgment, affirmed by the Court of Appeal, did not properly evaluate the evidence on the alibi of the Appellant. Counsel submits further, and correctly too, that alibi means that the accused, at the material time, was somewhere else and not at the scene of crime when the alleged offence was committed: BALOGUN V. A.G., OGUN STATE (2002) 6 N.W.L.R. (Pt.763) 512 at 536. The plea of alibi runs on some very well known principles. That is:
(1.) The Defendant who raises alibi does so to discharge the evidential burden he has to cast doubt on the prosecution’s case. It is discharged on a preponderance of evidence. That is on a balance of probabilities: OZAKI v. THE STATE (1990) 1 N.W.L.R. (Pt.124) 92 at 110. (2.) The Defendant who intends to set up the defence, or who sets up the defence of
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alibi is enjoined to give sufficient details or particulars of his whereabouts in order to enable the Police or the prosecution investigate it with the view to either affirm it or debunk it: BENSON UKWUNNENYI v. THE STATE (1989) 7 S.C. (Pt.1) 64; (1989) 4 N.W.L.R. (Pt.114) 131. The duty on the Defendant to establish his alibi lies in the fact that the burden of proving the fact peculiarly within his knowledge lies on him by dint of Sections 140, 131, & 132 of the evidence Act, 2011. Additionally, fair hearing, particularly audi alteram partem, demands of him not to take the prosecution by surprise, hence the duty on him, within a reasonable time, to give particulars of his whereabouts. Failure of the Defendant to give particulars of alibi is fatal to the defence; OKAI v. THE STATE (1989) 2 S.C.N.J. 183 at 191.
When validly raised with sufficient particulars of the whereabouts of the Defendant, alibi obligates or makes it incumbent on the prosecution to investigate it with the view of either validating it or debunking it: BALOGUN v. A.G. OGUN STATE (supra).
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alibi, if successfully pleaded and established, is an absolute or complete defence that negatives both the acteus reus and the mens rea of the offence. It does entitle the Defendant to acquittal and order of discharge: UKWUNNENYI v. THE STATE (supra).
The defence of alibi is not established by mere waving it to the trial Court. It is not sacrosanct either. This Court inDAGAYYA v. THE STATE (2006) NWLR (Pt.980) 637; (2006) ALL F.W.L.R. (Pt.308) 1212, cited by the Appellant’s Counsel: had stated the law on alibi clearly thus: the defence of alibi crumbles the moment the prosecution gives superior evidence fixing the Defendant not only to the scene of the crime, but also to his commission of the offence.
Exhibit A, the dying declaration of Mrs. Cecilia Ogbonna had fixed the Appellant not only to the scene of the crime, but also to the infliction of the fatal injuries that caused the death of the said Cecilia Ogbonna, deceased. At the earliest opportunity, the deceased identified to the PW.1 the assailants (including the Appellant) who inflicted the injuries to her head and body.
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She thereafter repeatedly told the PW.3 and others who came to her room to see her breathing in pains and bleeding profusely that the Appellant was one of the attackers who inflicted the injuries on her. At the Federal Medical Centre, Owerri, and on her sick bed, she also narrated her ordeal to the Police Officers including the PW.2 and PW.6. The PW.2 recorded Exhibit A in the presence of the PW.6.
Exhibit A had thus fixed the Appellant to the scene of crime and the cause of the fatal injuries which resultantly were the cause of the death of the deceased as attested by the PW.4 and Exhibit A. PW.1, Pw.2, PW.3 and PW.7, without any attempt made at challenging or contradicting them on the making of the declaration in Exhibit A, have corroborated making of the incriminating statement by the deceased. The making of the incriminating statements by the deceased was closely related in time to the infliction of the injuries on the deceased with sticks and machetes that it makes Exhibit A and the evidence of PW.1, PW.2, PW.3, PW.6 and PW.7 admissible in evidence. Exhibit A and the pieces of evidence averred by the PW.1, PW.2 and PW.6 – being statements relating to the cause of the injuries inflicted on the deceased, which establishes the cause of the resultant death of the deceased is admissible in evidence by dint of Section 40(1)
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of the Evidence Act, 2011. It is well established that the statement made by a person in imminent fear of death, or who believing, at the time it was made, that he was in danger of approaching death although he may at the time still be entertaining hope of survival, is admissible in evidence as dying declaration: AKPAN v. THE STATE (1967) N.M.L.R. 185 at 188; AKINFE v. THE STATE (1988) 3 N.W.L.R. (Pt.83) 729; R. v. OGBUEWU (1949) 12 W.A.C.A 483; SOLOMON T. AKPAN v. THE STATE (1992) 7 5.C.N.J.22.
I am aware, and curiously too, that the Appellant made no issue on whether or not Exhibit A and the oral evidence in that regard by the PW.1, PW.2, PW.3, PW.6 and PW.7 were admissible in evidence. These are the pieces of evidence that fixed the Appellant not only to the scene of the crime, but also to the injuries inflected on the deceased. The trial Court found as a fact, from Exhibit A, that the Appellant’s alibi could not be sustained his presence at the scene of the crime having been established. This finding is also supported by the evidence of PW1, PW.2, PW.3, PW.6 and PW.7.
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The finding is amply supported by the decisions of this Court to the effect the alibi crumbles and is destroyed the moment the prosecution raises and gives superior evidence fixing the Defendant not only to the scene of the crime, but also to the actual commission of the alleged crime: DAGAYYA v. THE STATE (supra). See also ODIDIKA v. THE STATE (1977) 2 S.C. 21; NJOVENS v. THE STATE (1973) 5 S.C. 17; IKEMSON v. THE STATE (1989) 3 N.W.L.R. (Pt.110) 453 (S.C).
The Court of Appeal, affirming the finding of fact by the trial Court that the defence of alibi did not avail the Appellant, the defence having been debunked, found also as a fact supported by the printed evidence that the presence of the Appellant at the scene of crime was established. Upon a second evaluation the Court of Appeal found further that “Exhibit A was strongly supported in content by the testimony (sic) of PW.1, P.W3 and PW.7” and that the alibi of the Appellant was effectively and completely destroyed.
What purports to be the alibi of the Appellant was the terse statement in both Exhibit E and his oral testimony in open Court that “on 19th November, 2005 (he) travelled to (his) village to see his sick brother” and that he came back on
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Sunday 4th December, 2005. Apart from not giving any particulars of his whereabouts between the night of 29th and the morning of 30th November, 2005, the Appellant was not specific about his brother who was sick and at the actual place he was. These non-specificities in his alibi were what prompted the trial Court to hold that without “the particulars of the place he was at the time of the crime, the names of those who were with him and the time they were together at the time of the alleged offence was committed, it is not the duty of the Police to go on a wild goose chase,” on the authority of KENNETH OGOALA v. THE STATE (1991) 2 N.W.L.R. (Pt.175) 509 at 530.
Alibi is a question of fact provable by credible evidence. The fact constituting the alibi is one peculiarly within the knowledge of the Defendant. The burden of proving that fact that is specially within the knowledge of the Defendant pleading alibi is on him, the pleader, by virtue of Section 140 of the Evidence Act, 2011. He who asserts alibi must prove it. Section 131 of the Evidence Act enjoins whoever desires any Court to give him judgment as to any legal right or liability dependant on the existence of facts which he
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asserts shall prove that those facts exist. Exhibit A having fixed the Appellant to the scene of crime and the crime alleged, the evidential burden is on him, by virtue of Section 132 of the Evidence Act, to cast reasonable doubt that he was at the scene of crime. And he would fail if no evidence, or believable evidence, were at all given. The evidential burden is no derogation of the burden of proving beyond reasonable doubt the guilt of the accused person. Every Defendant has a burden to prove his own defence.
It was argued for the Appellant that there are material contradictions in the evidence of the prosecution and that in the circumstance, the Court cannot pick and choose which piece of evidence to believe and which piece not to believe. This Court stated in ONUBOGU v. THE STATE (1974) 9 N.S.C.C. 378 andBOY MUKA v. THE STATE (1976) 9 – 10 S.C. 193 that when one witness for prosecution in a criminal case contradicts another witness on a material point, the prosecution ought to explain the circumstance of the inconsistency, failing which, the Court cannot pick and choose which witness to believe and which witness to disbelieve.
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And that in the absence of such explanation, the prosecution would be held not to have discharged their burden of proof beyond reasonable doubt. On this principle, the Appellant’s Counsel submits that Exhibit B having given the date of death of the deceased as 30th November, 2005; whereas, from the evidence adduced by prosecution witnesses, while the attack on the deceased was on 30th November, 2005, the deceased actually died on 4th December, 2005. It is apparent that the learned Counsel has misconceived the totality of the facts. There was no dispute about who was attacked on 30th November, 2005, hospitalized at the Federal Medical Centre that day and died subsequently in that same Hospital. There was no dispute that Cecilia Ogbonna, the victim of the attack, had died and that the PW.4 who authored Exhibit B was the Pathologist who conducted the autopsy on the body of the said Cecilia Ogbonna, the corpse having been identified by one Chief Ferdinand Okoroiko to the said Pathologist on 20th December, 2005. The statement in Exhibit B suggesting that 30th November, 2005 was the probable date of death could not have been anything but a slip in the circumstance.
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The substance of Exhibit B is the assertainment by the Pathologist of what caused the death of Cecilia Ogbonna. The death itself of Cecilia Ogbonna was not in dispute in the proceedings. The issue in the proceedings was who caused the injuries that resulted in the death of Cecilia Ogbonna. Exhibit A had fixed the Appellant, among others, to the scene of crime and the injuries inflicted on the said Cecilia Ogbonna.
The Appellant Counsel had also made so much fuss of the fact that the 1st and 2nd accused persons had testified to the robbery attack on them earlier in the night of 29th November, 2005 which was corroborated by the PW.3; whereas other prosecution witnesses denied such incidence. Apart from the PW.3 none of the prosecution witnesses lived in the same premises with the deceased. The Police Officers, particularly PW.6, testified that no incidence of armed robbery was reported at the Police Station and that the purported robbery attack on the 1st and 2nd accused persons and their mother (DW.1) was a mere hoax. The DW.1, a nurse, had tied bandages round her head to feign injuries.
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The PW.6, not deceived, decided to remove the bandages and it was found that “she had no wound or injury on her body.” The purported armed robbery was nothing but a deceptive or fraudulent contrivance to divert attention of the investigators.
It is also submitted for the Appellant that the Appellants alibi in Exhibit E corroborated by the PW.5 had materially contradicted the prosecution’s case. The terse alibi in Exhibit E and the Appellant’s evidence (as DW.3) was lacking in specifics or without any substantial particulars. The PW.5, in his evidence admitted that he neither knew the Appellant’s village nor did he ever visit the place. The distance of that village to the scene of crime remains unknown and indeterminate. Clearly, the evidence of the PW.5 adds no value to the alibi of the Appellant nor does it offer any material contradiction to the evidence fixing the Appellant to the scene of crime and the alleged crime.
This Court, as submitted by the Respondent’s Counsel, has held in ADEKOYA v. THE STATE (2012) L.P.E.L.R – 7815 (SC) that it is trite law that it is not every discrepancy or contradiction or any form of inconsistency that affects the substance of a criminal charge which has been proved with
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credible and or unchallenged evidence. The contradiction or inconsistency that will upturn a decision must be of such magnitude that goes to the root of the evidence of a witness and must be total renounciation of the case of the party relying on it: ABOGEDE v. THE STATE (1996) 5 N.W.L.R. (Pt.448) 270; ISHOLA v. THE STATE (1978) 9 – 10 5.C 81; OGOALA v. THE STATE (1991) 2 N.W.L.R. (Pt.175) 509. The rationale for this principle, put forward in BOLANLE v. THE STATE (2005) 7 N.W.L.R. (Pt. 925) 431 at 454 – 455, is that the substantiality or fundamentality of the conflicts and contradiction to the main issue will necessarily create some doubt in the mind of the trial Court to enure in favour of the accused person, or Defendant, the benefit of doubt entitling him to acquittal.
The Court of Appeal (per Abba-Ajji, JCA) found the alleged contradictions “not material contradictions” but merely peripheral. I agree entirely. coming as I do to this conclusion, there is no good cause for me to interfere with and disturb the concurrent judgments of the two Courts below. The Appellant was, through the evidence of the prosecution, fixed not only to the scene of crime but also to the
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alleged crime. Concurrent findings of facts by the Courts below prima facie entitle the Respondent to a dismissal of the appeal unless the Appellant shows that the concurrent findings of fact are perverse, unreasonable or had occassioned to the Appellant a miscarriage of justice. The Appellant herein having not satisfactorily established why the concurrent findings of fact made against him by the Courts below, should be disturbed; I hereby affirm the said concurrent findings and dismiss the appeal in its entirety.
The decision of the Court of Appeal which affirmed the conviction and sentence imposed on the Appellant for the murder of Cecilia Ogbonna is hereby affirmed. Appeal dismissed.
WALTER SAMUEL NKANU ONNOGHEN, C.J.N.: I have had the benefit of reading in draft the lead Judgment of my Learned Brother EJEMBI EKO JSC, just delivered.
I agree with his reasoning and conclusion that the appeal is without merit and should be dismissed.
The appeal is grounded on two main issues viz:
(a) Alibi and
(b) Conflicting evidence of the prosecution.
On alibi, it is settled law that a defence of alibi, when
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raised successfully, is a complete defence to the offence charged. It is a defence that raises doubt as to the identity of the perpetrator of the offence charged, particularly, as it contends that the accused was, at the time material to the commission of the offence, at a different location from the scene of crime thereby making it physically impossible for the accused to have been the person who committed the alleged offence as it is impracticable for a person to be at two different locations at the same time.
However, for the defence to apply, it is required of the accused to provide the prosecution/police, at the earliest opportunity, with the details of his movements on the date in question to enable the police/prosecution check the said details. See OBIODE VS THE STATE (1970) 1 ALL NLR 36; NSOFOR VS. STATE (2002) 10 NWLR (Pt.775) 274 etc.
The question is whether appellant did provide the police with details of his alibi in the earliest opportunity. The answer can be gleaned from the extra judicial statement of appellant which was tendered and admitted without objection and marked as Exhibit “E’ in which he stated thus:
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On 19/11/2005, I travelled to my village to see my sick brother and I came back on 4/12/2005.”
Does the above satisfy the requirement of the law Obviously not. There is no mention of the name of his alleged village nor of the brother. He did not state the nature of the sickness his brother allegedly suffered nor where and with whom he spent the nights away from the scene of crime.
Secondly evidence abound on record that he was at the scene of crime and did participate actively in the commission of the offence – See the statement of the deceased, Exhibit “A’ and the evidence of PW.1 and PW3. It is therefore my considered view that the evidence on record positively identified appellant and fixed him squarely at the scene of crime as one of those who committed the offence charged.
On conflicting evidence of the prosecution witness, I agree with my learned brother and the Lower Courts that there are no material contradictions in the evidence which could have adversely affected the findings of the Lower Courts by making it unsafe to rely on same to sustain the charge and conviction.
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Finally, I need to mention the fact that the Lower Court painstakingly re-evaluated the evidence on record and came to the same conclusion as the trial Court that appellant was guilty of the offence charged. This therefore, makes the appeal one that is substantially grounded on concurrent findings of facts by the Lower Courts thereby bringing same within the settled principle of law that an appellate Court does not make a practice of interfering with the concurrent findings of fact by the Lower Courts except under exceptional circumstances which circumstances have not been demonstrated by appellant to exist in the instant appeal.
In conclusion, I too find no merit in the appeal and consequently dismiss same.
The Judgments of the Lower Courts are hereby affirmed.
Appeal dismissed.
SC.73/2013