Iheonunekwu Ndukwe V. The State (2009)

LAWGLOBAL HUB Lead Judgment Report

S. MUNTAKA-COOMASSIE, J.S.C

The Appellant herein was arrested and arraigned properly before the High Court of Justice in Isiala Ngwa High Court Abia State for murder punishable with death in that he caused the death of one Michael Anaba on 25/9/82.

The prosecution called three (3) witnesses including the Registrar of Isiala Ngwa High Court who tendered the Certificate of Record of previous evidence of the I. P. O and the evidence of the medical doctor in previous proceedings in the case before another judge as well as the statement of the accused person to the police.

As stated earlier, hearing started in earnest. At the end of the prosecution’s case, the accused person now appellant testified in his own defence and called no witness. Both counsel for the appellant and the prosecution copiously addressed the court on several contentious issues and the possible defence of the appellant.

At the end of the trial and addresses of learned counsel, and in a considered judgment, the learned trial judge found the appellant guilty as charged. He convicted the appellant as such and sentenced him to death.

The trial judge has this to say on pp. 26 – 27 of the record:-

“…From the totality of the evidence before the court, I am satisfied that the prosecution proved its case beyond reasonable doubt as is required by Section 137 (i) of the Evidence Law, for the law would fail to protect society if it permitted remote or fanciful possibilities to deflect the course of Justice. In the result, I find the accused guilty as charged and is accordingly convicted; and was sentenced to death”.

Being aggrieved by the above decision of the trial High Court, the appellant, unsuccessfully, appealed to the Court of Appeal Port-Harcourt Division herein called court below. The court below in a reserved judgment unanimously dismissed the appeal of the appellant and confirmed the decision of the trial court delivered on 10/4/95 by Isuama J. The Court below says:

“In this appeal, with the testimonies of proof of death by the report of the doctor tendered on his behalf by the IPO, PW3, the death of the deceased is proved to be by gun shot. The testimonies of the PW1 and PW2 show that the perpetrator of the act of murder is the accused person who was identified at the scene. Upon consideration of the defence of the accused person of uncertain identity and alibi and of allegation of hearsay evidence of PW 2, t the defence of the accused person is inadequate and indeed incompetent to effect the clear evidence of proof of identity by the prosecution of the accused person. Consequently the charge of murder against the accused person is proved beyond reasonable doubt. The court below was right to convict and sentence the accused person. I resolve the 2nd and 3rd issues in the two briefs of the appellant and respondent against the accused appellant and affirm the judgment of the court below of Isuama J. On 10/4/95 see pp 8 – 9 of the Record of Proceedings”.

Still dissatisfied with the above judgment of the court below, the Appellant has now further appealed to this court on the Notice of appeal containing three grounds of appeal. Shorn of their particulars they are reproduced hereunder:-

Ground One

“The learned Justices of the Court of Appeal erred in law when, in affirming the decision of the trial court, rejected the defence of Alibi put up by accused in the trial court.

Ground Two

The Learned Justices of the Court of Appeal erred in law when, in affirming the decision of the trial court; they held that the identity of the accused in the commission of the offence charged was proved by the prosecution.

Ground Three

The learned Justices of the Court of Appeal erred in law when they affirmed the decision of the trial court to the effect that the prosecution proved the charge against the accused beyond reasonable doubt”.

Based on the above grounds of appeal the appellant formulated two issues for our consideration of this appeal as follows:-

(i) Whether the Court of Appeal was right when it held that the identity of the Appellant in the commission of the offences charged was proved by the prosecution.

(ii) Whether the Court of Appeal was right when it held that the prosecution proved the charge against the Appellant beyond reasonable doubt.

The respondent formulated three (3) issues for the determination of the appeal thus:-

1. Whether the appellant was properly and sufficiently identified as the person who killed the deceased in this case.
2. Whether the Court of Appeal was right in upholding the rejection of the defence of Alibi set up by the appellant at the trial court.
3. Whether the Court of Appeal was right in affirming the conviction and sentence of the appellant at the trial court.

Before I delve into the arguments on the issues formulated I think it would not be out of place if I attempt to restate brief facts of this case.

BRIEF FACTSAs gathered from the case, on the 25/9/82 at about 10.00 pm the deceased, Michael Anaba, while having a rest on his easy chair at the back yard of his house, was shot with a gun by the accused person, Mr. Iheonunekwu Ndukwe who escaped thereafter. An alarm was raised but the accused was not able to be apprehended on the spot on that day. However one Esidi ran to the scene from the deceased’s house and testified to the fact that he pursued the accused but he escaped. He testified as PW2. The widow of the deceased Mrs Salome Anaba testified as PWl that at the time of the incident she was bathing her child at the said back yard. She added that when the accused entered the said back yard the deceased, her husband, asked the accused “why are you here at this time”, thereafter the accused shot the deceased with a gun on his head and he fell down.

Salome Anaba who was all along at the same back yard, rushed to the scene to see what had happened she collided with the appellant as he was trying to escape. There was a lantern at the back-yard and she accosted the appellant in these words: ” Iheonekwu have you killed my husband” The appellant set up an alibi and said he had an accident at Achara on his way back from the deceased’s house.

On issue one, learned appellant’s counsel Dr. I. N. Ijiomah, submitted that where a person is charged with the offence of murder the prosecution in order to prove the charge must establish the following:-

1. That the person alleged to have been murdered is dead
2. The cause of his death
3. That it was the act of the accused that caused the death of the deceased. He strongly relied on the cases of Ahmed V. The State (2003) WRN page 1 at 20; and Effa v. The State (1998) 2 NWLR (pt.537) 273 at p. 290.

Learned counsel, rightly in my view, has done the right thing by, understandably, accepting that the prosecution proved beyond reasonable doubt that the deceased was shot on the head with a gun and he died.

Counsel continued to contend that what is relevant is whether it was the accused, now appellant, that shot the deceased. He further expatiated to the effect that the shooting of the deceased took place on 25th day of September, 1982 and the accused was arrested on 26th day of September, 1982, he there and then put up a defence of alibi in his voluntary statement to the police which was tendered in court and marked exh. C- D.

According to the learned counsel the police are supposed to investigate the said alibi. But in this case they did not. The police/prosecutor really cross-examined the appellant in court over this issue of alibi and could not discover any contradiction. That being the case, the learned counsel submitted that the prosecution must have been taken to have accepted the alibi – Ofortete v. The State (2000) 7 WRN p. 86 at pp. 109 – 110.

It is clear to me that the record of the trial court where Appellant’s counsel cross examined the Accused vis-a-vis defence of alibi raised by the accused was not reflected in the trial court’s record. Both trial court and court below did not discuss the Issue of alibi not to talk about using it in favour of the appellant. Learned Appellant’s counsel did nothing to show that he was attacking the trial court’s record.

On the Issue of alibi the learned counsel for the Appellant submitted that the accused person raised the Issue of alibi timeously but the police refused or failed to investigate and produce the result of their investigation as evidence in court, to allow the trial court to decide for itself whether the alibi could be sustained or not. He adopts and relies on the statement of Oputa JSC in the case of Ikemson v. The State (1989) 1 CLRN p1 at p25. Paragraph E.”

Learned counsel posited further that it is for the police to inform the court why it did not investigate the alibi. He then submitted that having told the court so, the court will examine the evidence and see if the view taken by the police is correct. He submitted further that investigation of alibi is a duty that is done by the police before the accused is charged to court. So, the reason why the police did not investigate an alibi, even if it is because of the quality of prosecution witnesses ought to have been ascertained by the police before the case is charged to court. Thus, the accused version in the matter should be put alongside the reason given by the police and then tried by the court. Learned counsel then condemned the action of the learned justices of the court of appeal for supplying such a reason, Suo motu, in their adjudicatory role.

On whether or not the accused actually adduced evidence in support of his alibi, the learned counsel maintained that the accused raised his alibi timeously only that the police failed to investigate it and refused to state the reasons why.

After exhaustively discussing the issue of alibi raised by the Appellant learned counsel argued that both lower courts failed to consider the Issue of alibi properly also the court below refused to evaluate the evidence adduced by the prosecution which was said to be contradictory. Having failed to do so, learned counsel urged us to hold that the conclusion reached by the court below on the alibi of the accused person is perverse and wrong. For this and other submissions under this issue one, this court is urged to resolve the issue in favour of the Appellant and allow this appeal on this ground. See pp3 – 16 of the Appellant’s Brief.

Under Issue No 2, counsel contended that the prosecution in this case failed to prove their case against the Appellant as required by law. Learned counsel, on page 17 submitted that “So far as the duty of the court in ascertaining that a criminal case is proved beyond reasonable doubt involves considering the totality of the evidence before the court, i.e. aspects which are favourable and those not favourable, the trial court did not discharge its duty in this respect and the court below which undertook to evaluate the evidence also failed to discharge this duty”. There is no gain saying, the counsel added, that the trial court in its unimaginably short judgment did not at all consider the case of the accused. That court refused to advert its mind to the address by the accused’s counsel in which he pointed out the contradictions in the evidence of both Pw1 and Pw2 and the contradictions are irreconcilable. He finally submitted that the court below did not consider this loose state in the prosecution’s evidence. He then added that if it had done so, it would have come to the conclusion that the prosecution did not prove its case against the accused beyond reasonable doubt.

In its own brief of argument filed on 18/4/07, the Respondent submitted that the major plank of the Appellant’s submissions is this: That the accused person was not sufficiently or properly identified given the alibi he set up and also the fact that the 1st and 2nd prosecution witnesses might have a purpose of their own to serve. The Respondent contended that the appellant was not a stranger to the Pw1 and Pw2.They knew him very well, and in fact intimately, before the date of commission of the offence. The appellant, counsel added, on his own viva voce said that he had no problems or quarrels with either the deceased, Pw1 or Pw2. Learned counsel then submitted that the appellant was properly and sufficiently identified. They further submitted that there was no mistake in the identification of the appellant. The Pw2 is the wife of the Appellant there was lantern therefore identification of the Appellant could not be a problem. In fact both witnesses (Pw1 & Pw2) knew the accused before the incident which made them to recognize the accused easily.

They relied on the following decided cases:-

(1) Akor and others V. The State (1992) 4 NWLR (pt 234) 198 at 204.

(2) Theophilus Eyisi & 2 Ors v. The State (2000) 82 L.R.C.N 307 at 316;

(3) Balogun v. A.G Ogun State (2000) 94 LRCN 260.

Learned Respondent’s counsel emphatically submitted that Pw1 and Pw2 did not just identify the appellant but they also recognised him having known him before – The State v. Aibangbee (1988) 3 (NWLR) (pt 84) 548 per Nnamemeka Agu JSC; see also Bassey Akpan Archigbong v. The State (2007)

143 L.R.C.N.228; In R V Turn Bull (1976) 3 AU E.R. 549 – 552 where lord Widgery C.J Stated: “Recognition may be more reliable than identification of a stranger “.

The Respondent’s counsel finally submitted under Issue 1 that there is no mistake in identifying and recognising the appellant by the Pw1 and Pw2. It prays thus:-

“My Lords, in the face of the positive identification of the appellant, by the deceased, PW1 and PW2, persons who knew him prior to the date of commission of the offence, we urge the Supreme Court to hold that the Court of appeal was right when it held that the identity of the appellant was properly and sufficiently proved in this case. We urge the Supreme Court to resolve our issue No.1 in the respondent’s favour.”

On Issue No. 2, the Respondents counsel contended that the Appellant relied heavily on the defence of alibi which the trial High Court rejected and which rejection was upheld by the Court of Appeal. In his defence the accused said that on his way back from the deceased’s house he had an accident at Achara and became unconscious. He was carried to the house of another Sister of his called Mabel at Achara. He further testified that when he regained consciousness, he went home through Umuezegbu Village and that it was dark when he arrived his house that day. He said he slept in his house with his wife called Emily, that night. See page 20 line 27 – page 21 lines 1 – 6 of the record of proceedings. Above is the accused explanation vis-a-vis the alibi. The respondent’s counsel on Page 8 2nd paragraph countered by saying: “However, the prosecution fixed the appellant at the Scene of Crime at the material time. The prosecution witnesses Nos. 1 and 2 saw the appellant committing the offence. Whereas PW1 saw him committing the crime i.e. shooting the deceased and even accosted him, the PW2 rushed out from her room to see what was happening after she heard a gunshot and the voice of the deceased asking the appellant what he came to do at that time. The appellant who was escaping after the dastardly act pushed her aside and ran away. The PW2 recognised the deceased (sic) – the accused – very well as he was her husband and as there was a lamp that lit up the Scene”. The above is the explanation of the Respondent’s counsel in his attempt to debunk the plea of alibi.

Not only that, counsel continues, in the face of the recognition and fixation of the appellant at the Scene of the crime and as the perpetration of the crime, the appellant did not tender any evidence or call any witness no support his defence of alibi. He relies on the case of Ntam & Anor Vs. The State (1968) NMLR 68. It was held: “Where the prosecution witnesses, (PW1 & PW2) testify that they saw the accused committing the offence charged, but he sets up an alibi, there is a straight Issue of credibility and it is therefore necessary for him to call or adduce evidence to prove the alibi Ntam & Anor v. The State (1968) NMLR 68”

Learned Respondents counsel submitted that the law is that it is the duty of the accused to introduce the evidence of alibi and to State his whereabout, and both are within the accused’s personal knowledge. Failure of the accused to do that the prosecution does not have to disprove it. The evidential burden in such a case rests on the appellant. He cites in support the case of Nanor & Anor Vs. The State (1965) 1 All NLR 193; Ahile Gandi & Anor vs. The State (1965) NMLR 333; see also Sale Dagaya vs. The State (2006) 134 LRCN 397 at 432 per Niki Tobi JSC.

On time factor, the Respondents Counsel contended that the piece of evidence sighting the appellant at 6.00 pm was not contradicted at all by the defence, yet they are querying why the learned justices of Appeal asked at what time The alibi did not just rhyme or gel (it is not a matter of course). It is not enough for the appellant to say it was dark when he got home that night and that he slept with his wife. The court of Appeal’s question “at what time” is most apposite he contended. It was on record that under Cross-examination the accused admitted that he was challenged because it was very late in the night – Issue of time shall be taken seriously – SALE DAGAYA vs. THE STATE (Supra) at 430.

The Learned counsel for the Respondent further argued on their pp 11-12 thus:-

“My lords, majority of the appellant’s argument in respect of the defence of alibi are speculative. Most of the things canvassed here are not borne out of the record of proceedings transmitted for the purposes of this appeal. For instance there is nowhere in the records where it could be found that the appellant raised his defence of alibi at the earliest opportunity. There is also nothing from the records to show that the police did not investigate the alibi set up by the appellant. We wonder from where the appellant got all the facts with which he argued forcefully on the lack of police investigation of the alibi. The alleged statement of the appellant tendered as Exhibit “CC1 at the trial court did not form part of the records transmitted for this appeal. The certified true copy of the evidence of the investigating police officer (IPO) in a previous testimony tendered in court, as Exhibit “8” is also not part of the record transmitted for this appeal. It is equally discernable from the records that the present appellant’s counsel was not the counsel that represented him at the trial in the High Court. So from where did he get the facts with which he is lampooning the trial court and the Court of Appeal

The appellant cleverly imported the issue of uninvestigated alibi at paragraph 4:04 of his brief when he submitted” when the accused testified in court he re-enacted the said alibi which he made in his statement to the police…”

Unfortunately neither the said statements of the accused nor the IPO’s testimony in Court formed part of the records transmitted for the appeal. We urge my Lords to discountenance every and all argument made by the appellant in relation to the uninvestigated alibi as same was not borne out by the records of proceedings transmitted for the instant appeal. In C.B.N. & 6 ORS VS MR. AITE OKOJIE (2004) 10 NWLR (PT.882) 488 at 513 the court of Appeal per Galadima JCA said:-

“There is presumption that a record of appeal or proceedings once certified and transmitted to the appellate court is correct and unless the contrary is proved, the appellate court is entitled to look at or refer only to the record before it in deciding any issue in dispute in the appeal and not to the one brought to it informally by one of the parties when the appeal is heard. Learned counsel further added as follows:-

“And in LT. YAHAYA T. TAKUBU VS CHIEF of NAVAL STAFF & 2 ORS (2004) 1 NWLR (PT 853) 80 at 113-114 the court of appeal following the dictum laid down by Olatawura JSC in PETER ADEBOYE ODOFIN & ANOR VS CHIEF AGU (1992) 3 NWLR (PT.229) 350 at 374 said “when a counsel has realised that the record of appeal is incomplete, it is his duty as an officer of the court in the temple of justice to promptly inform the court and where he feels that after due search in the lower court, he can take other steps to convince the court that the record before the court, though certified as true copy of the proceedings was indeed wrongly certified, he should know what next to do. But to proceed to argue as learned counsel to the respondent did in the instant case, by proffering explanations as to where some unexhibited volume can be found was wrong.

My Lords, for the purposes of this appeal, there is nothing to show that the alibi of the appellant was timeously raised. We submit that the appellant cannot speculate on the contents of documents that are not before the honourable court”.

The Respondent further contended that there is nothing Sacrosanct in raising an alibi. The prosecution must adduce cogent evidence to check on a statement of alibi by the appellant in order to disprove the alibi there is no immutable or inflexible way of doing that. In one of the Supreme Courts cases the accused person called witness to support his alibi nonetheless the Supreme Court held that once the prosecution is able to lead cogent and unassailable evidence which fixes the accused at the Scene of Crime at the material time, his alibi naturally collapses. – Ezekiel Adekunle vs. The State (1989) 5 NWLR (part 123) 505; Tunde Adara & Anor vs The State (2006) 135 LRCN 703.

Respondent continues and submitted that “In the instant case, no witness was called by the appellant to support his defence of alibi”.

Learned counsel for the Respondent reviewed the ingredients of the offence of murder and evidence law in a very matriculate manner and concluded that on the totality of the evidence adduced by the prosecution, when pitched against that of the appellants, the prosecution proved its case beyond reasonable doubt and therefore urges this court to hold that the court below was right in affirming the conviction and sentence of the appellant in this appeal.

Before I analyze the submissions of both counsel, I shall refer to the Appellant’s reply Brief filed on 1/11/2007 which concentrated on the burden of proof in Criminal cases. Learned counsel for the appellant again raised the issue of whether or not the accused person raised the defence of alibi. He also discussed the alleged lack of record of non – investigation of the alibi. I refer to pages 1- 7 of the reply Brief. He in conclusion submitted thus:-

“I submit that it is (Sic)the duty of the police to have asked Appellant the time he arrived at his house or what he meant by the word “dark” in relation to when he arrived at his house that day. Police would have given the accused’s answer in evidence and then saved Respondent the problem of raising loose ends in the time element in the accused’s alibi. I submit that any doubtful fact in the accused’s alibi is for the Police to supply. Accused in his alibi gave the necessary lead for them to follow, but they failed to do their work and thereby weakened the prosecution’s case. I urge my lords to so hold.”

He then urges us to hold that the appeal succeeds and it ought to be allowed.

My lords, the above exercise is meant to highlight what had happened in both the trial court and the court below, and to produce the submissions of learned counsel to the parties – Appellant and Respondent- before us.

The facts which cannot be altered are that the appellant Iheonunekwu Ndukwe was charged with the murder of Michael Anabe by shooting him with a gun on 25th day of September, 1982 at Agburuike village punishable under section 319 of the Criminal Code, Cap 30 Vol. II Laws of Eastern Nigeria 1963.

It is also to be noted that the learned trial judge after considering the prosecution’s case found him guilty, convicted him and sentenced him to death. The appeal of the Appellant to the court of Appeal was dismissed and the death sentence was unanimously affirmed. He appealed to this court and both appellant and Respondent filed their respective Briefs of argument and the Appellant, in addition, filed a reply Brief. I have gone through all the Briefs and the submissions of both learned counsel I think it is now trite that in this type of criminal cases the burden is on the prosecution to adduce evidence in proof of their case before an accused person is convicted. Considering Section 319 of the Criminal Code, before the accused is convicted of murder the prosecution must prove beyond reasonable doubt the following:-

1. That the deceased has died
2. That the death of the deceased resulted from the act of the Accused/Appellant; and
3. That the act of the Accused was intentional with knowledge that death or grievous bodily harm was its probable consequence.

See Section 138 (i) of the Evidence Act.

Both Appellant and the prosecution agreed that two of the above ingredients were proved beyond reasonable doubt i.e. that Iheonunekwu Ndukwe died as a result of a gunshot. The evidence is so strong that the Appellants counsel agreed that the prosecution proved both ingredients beyond reasonable doubt. The crucial point is whether or not the prosecution proved the 3rd ingredient i.e. that the deceased died as a result of the accused’s act. In other words, did the appellant shoot the deceased If the prosecution was found to have adduced credible evidence to show that it was the accused who fired the gun at the deceased and killed him then conviction must be confirmed.

In this case, the Appellant’s counsel contended that the prosecution could not have proved that it was the accused person who killed the deceased. They argued that the accused/Appellant was somewhere distant from the Scene of the Crime so how could he be said to have shot the deceased In a nutshell the appellant raised the plea of alibi allegedly in his statement to the police. If what the accused pleaded is real or established then in law one of the ingredients of the offence of murder is missing. That being the case, the prosecution would have failed to prove their case against the appellant beyond reasonable doubt.

The prosecution denied flatly the defence of alibi as raised by the defence.

They insisted that the appellant was fixed at the Scene of the Crime by the evidence of PW1 and PW2.

Briefly I will say, after closely analysing the submissions of both counsel and the record of proceedings, that once the accused person successfully and correctly raised the defence of alibi, then it is the duty of the police to investigate in order to verify the claim of the accused. Failure of the police to investigate is fatal to the case of the prosecution. The burden of establishing the circumstances of alibi remains on the accused. He must all along supply the details of his whereabout.

In this case the Appellant could not produce evidence of his whereabout at the material time. His account of his whereabout is sketchy and unreliable. His account of alibi was not reflected by the Record of proceedings before the court. The police in my view therefore cannot give the court substantiated or reliable evidence of the alibi. Consequently I hold that there is no investigable material concerning the alibi made by the accused. Can we blame the police for refusing to investigate the so called alibi when none is in existence With respect, the accused cannot, even on the balance of probability, prove the alibi raised by him. If the alibi raised by the Appellant was strengthened by his evidence we would have blamed the police for failure to investigate the defence of alibi – Obiode V. The State (1970) 1 All NLR 35. My lords, it is the law that where an accused person has raised an alibi and clearly stated his whereabout before the trial commences, and the prosecution failed to take any steps to verify or disprove it, the court will be right to hold that the prosecution failed to prove its case beyond reasonable doubt. In other words, one of the important ingredients would have been missing; therefore the prosecution cannot then say that it was the accused who killed the deceased Obinga & Ors Vs The State (1965) NMLR 172.

It is incumbent upon the appellant to supply, adduce or elicite where he was at the material time; that is all about alibi i.e. that the appellant was “elsewhere” which is within his knowledge; that he was at a place other than where the prosecution says he was at the material time.

In the case at hand, the evidence of PWs 1 and 2 who knew the accused person closely identified the accused at the Scene of this dastardly act. Their evidence is reliable. The defence failed to produce evidence to demolish that of the prosecution even though he got opportunity to do so, by calling witness or witnesses to support him. As far as I am concerned there is no material contradiction in the evidence of PWs 1 & 2 in this appeal. Since the learned trial judge and court below did not find or discover any material contradiction the finding of the trial court, that there was no contradictions in the evidence of PW1 and PW2, was ably and competently made. The decision of the court below in affirming the decision of the trial court vis-a-vis the so called contradiction is perfectly justified, both lower courts did make a correct finding. In this court we have no cause to disbelieve PW1 and PW2. I refer to Nasamu vs. The State (1979) 6 – 9 SC. P112 at 116 Per Eso JSC where he made the following statements:-

“The emphasis in the passage is on “material point” and we would like to state here that not every contradiction, however minute, would be sufficient to damnify a witness. The contradiction that would make a court disbelieve a witness has to be on a material point in the case. And what is material, however, depends on the facts of each case. It must be such a contradiction that one of the witnesses contradicting the other on has no further duty of conducting either an identification parade to identify the appellant or to call any other evidence to rebut any purported alibi put up by the appellant. See Mathew Orimoloye vs The State (1984) 10 SC. 138; Muhammadu Akanbi v The State (1984) 10 SC. 272.”

Per Wali JSC in Ibrahim v. State (1991) 4 NWLR (pt 186) 399 at p 419. Paragraphs E – F.

It is also to be noted in this appeal that there are concurrent decisions of the two lower courts below in rejecting the plea of alibi loosely raised by the appellant. Both decisions were never shown to be perverse.

For the foregoing reasons this appeal fails, same is hereby dismissed.

The conviction and Sentence of the appellant by the trial court for murder under Section 319 Criminal Act as affirmed by the court below are hereby affirmed.

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SC.20/2007