Matthew Obakpolor Vs The State (1991) LLJR-SC

Matthew Obakpolor Vs The State (1991)

LawGlobal-Hub Lead Judgment Report

E. O. I. AKPATA, J.S.C. 

One of the methods by which criminal proceedings could be instituted in the High Court in Bendel State and a number of other States in the country was by information filed in the court after the accused had been committed for trial by a magistrate following a preliminary Inquiry. The practice of conducting such an Inquiry before an information is filed has been discontinued. This appeal however relates in the main to a procedural irregularity in the committal of the appellant for trial following a preliminary Inquiry in 1986.

On an information filed by the Attorney-General of Bendel State, the accused, now appellant, was charged with the murder of one Dele Kukuru on or about the 4th day of August, 1985 at Sapele in the Sapele Judicial Division of Bendel State. The charge arose from the committal of the accused to the High Court for trial by the Magistrate who conducted a preliminary inquiry under the provisions of Part 36 of the Criminal Procedure Act or Law.

At the trial it was the case for the prosecution that on 4th August, 1985, as soon as four persons, including the deceased Dele Kukuru and P.W.1, Joseph Boyitie alighted from a bus, they saw two other persons running towards their direction. The two persons were apparently being pursued by some people shouting “thief, thief”. The accused who was one of the persons being pursued was armed with a dagger. On getting to where the four persons were he stabbed all four of them, inflicting varying degree of injuries on them. The deceased fell down the moment he was stabbed. The other three who tried to render help to the deceased had to flee in disarray because the accused still pursued them, welding menacingly the dagger he was armed with. The incident took place along a well lit street.

P.W.1 had known the accused before the date of the incident. The corpse of the deceased who had died from the stab which lacerated the chamber of his heart resulting in severe internal haemorrhage was recovered that night by the police at the Sapele Clinic. This was after P.W. 1 and others had reported the incident at the police station. P.W. 1 in his statement mentioned the accused by name as the assailant.

Following the incident the accused took refuge in the house of his friend, P.W.2 John Agbamisa, whom he told that he had been engaged in a fight with certain persons and that one of those he stabbed had died. He pleaded with P.W.2 to allow him spend the night in his house. After the accused had eaten and was overcome by sleep, P.W.2 sneaked away to the police station and lodged a complaint against the accused. The police went with him to his house where the accused who was still asleep was chained by them without resistance. He was woken up and searched and a blood stained dagger was recovered from his person.

In his defence the accused set up an alibi to the effect that he was at P. W.2’s house from 5p.m. on 4/8/85, that is, before the incident leading to the death of the deceased, to 2 a.m. of the following day when he was arrested. According to him he had gone there to collect his wrist watch from P.W.2 whom he did not meet at home. While waiting there for the arrival of P.W.2 he fell asleep and was woken up by two armed policemen who apprehended and took him to the police station. He denied telling P.W.2 that he had stabbed someone.

In his address, learned counsel for the accused submitted that the committal of the accused to the High Court for trial was null and void because of non-compliance with the provisions of sections 314 and 323 of the Criminal Procedure Act (C.P.A.). He also argued that the prosecution had not proved the guilt of the accused beyond reasonable doubt. Learned counsel for the prosecution however submitted that there was compliance with the relevant provisions of the C.P.A. and that if there was infact non-compliance such non-compliance was not prejudicial to the accused.

In a reserved judgment the learned trial Judge held that the magistrate complied with the relevant provisions of the C.P.A. He was also satisfied that the prosecution had proved its case beyond reasonable doubt and rejected the defence of alibi. The accused was therefore found guilty of the offence of murder and was convicted and sentenced accordingly.

Dissatisfied with the decision of the trial High Court, the accused appealed to the Court of Appeal (Benin Division) by filing four grounds of appeal. Prominent amongst his complaints was the question whether the learned trial Judge was right in holding that he was properly committed for trial by the Magistrate at the preliminary inquiry to the High Court for trial.

It must be mentioned that on 21st of September, 1987 at the High Court of Justice holding at Sapele, the charge on the information filed was read and F explained to the accused person and he pleaded not guilty to it. No objection was raised to the committal order of the Magistrate then. The case was adjourned to 28th September, 1987 for hearing. On that date counsel for the accused argued, following a “notice of preliminary objection” filed by him on behalf of the accused that the committal proceeding in the magistrate court was null and void on the ground that the Magistrate failed to comply with section 314(1) of the C.P.A. This section reads:

“314.(1) If at the close of the evidence for the prosecution a prima facie case has in the opinion of the Magistrate been established against the accused, immediately after the last witness for the prosecution has been bound over to attend the trial the magistrate shall again read the charge or read the amended or substituted charge to the accused and explain the nature thereof to him in ordinary language and inform him that he has the right to call witnesses and, if he so desires, to give evidence on his own behalf.”

The application was opposed on a number of grounds, one of which was that there was no proper application before the court. The learned trial Judge ruled that:

“it is obvious from the record of the preliminary proceeding that the learned trial Magistrate read and explained to the accused the charge and in fact complied with section 312 of the C.P.A. (as evidenced by pages 14 to 16 of the record). In the circumstance the objection raised by counsel for the accused is hereby overruled”,

At the conclusion of evidence in the High Court, learned counsel in his address, as already pointed out, again raised the issue of non-compliance with the provisions of section 314(1). The same complaint was seriously brought up in the Court of Appeal along with the issues raised by the other grounds of appeal. In a unanimous decision the Court of Appeal held that the committal proceedings were substantially in comformity with the relevant provisions of the Criminal Procedure Act. The Court of Appeal was also satisfied that the defence of alibi set up by the appellant was considered by the trial Judge and that “all the other submissions on this issue are either speculative, non sequitur or irrelevant”. The Court was also of the view that the trial court was correct in holding that the prosecution established its case beyond reasonable doubt. The appeal was accordingly dismissed.

The appellant has now appealed to this Court on a number of grounds. He was granted leave to amend his notice of appeal by filing additional grounds of appeal. The additional grounds which incorporate the original grounds are ten. They will be set out but exclusive of the particulars of the alleged errors in the judgment supplied in respect of some of the grounds.

They read:

“(1) The learned Justices of the Court of Appeal erred in law in confirming the conviction of the appellant for murder in a trial initiated by an incompetent information based on an invalid committal preliminary investigation proceedings.

(2) The learned Justices of the Court of Appeal misdirected themselves in law in considering the “ex post facto” compliance with the mandatory provisions of Sections 312 and 314 of the Criminal Procedure Law of Bendel State and thereby occasioning a serious miscarriage of justice.

(3) The learned Justices of the Court of Appeal erred in law in confirming the rejection by the trial Judge of the defence of alibi and thereby occasioned a miscarriage of justice.

(4) The learned Justices of the Court of Appeal misdirected themselves in law in holding that the learned trial Judge, apart from rejecting appellants alibi, did consider and make specific findings on the main defence of the appellant and thereby occasioning a miscarriage of justice.

(5) The Court of Appeal erred in law in confirming the conviction of the appellant for murder when it was clear that the prosecution had not discharged the important onus on them of proving the guilty of the appellant beyond reasonable doubt.

(6) The Court of Appeal erred in law in confirming the conviction of the appellant when the identity of the appellant was not proved beyond reasonable doubt.

(7) The Court of Appeal erred in law in confirming the conviction of the appellant for murder of the deceased when the body of the deceased was not identified to the Doctor who performed the autopsy.

(8) The Court of Appeal erred in law in confirming the conviction of the appellant based on the evidence of 2nd prosecution witness, which was not treated by the trial Judge with the necessary caution.

(9) The Court of Appeal was wrong in confirming the conviction of the appellant when they failed to hold that the decision of the trial court is unreasonable, unwarranted and could not be supported having regard to the evidence at the trial court.

(10) The Court of Appeal erred in law in confirming the conviction of the appellant of murder when malice aforethought was not established”.

The issues arising from the grounds of appeal as identified in the appellant’s brief are as follows:

“1. Whether the non-compliance by the investigating Magistrate with the mandatory provisions of Sections 312, 314(1) – 314(5) and 323 of the Criminal Procedure Laws of Bendel State 1976 did not render the committal of the appellant for trial null and void.

1.(a) Consequently whether the non-compliance with such condition precedent to the trial did not render the information based on such invalid committal, and the trial thereon nullities.

(b) Was the Court of Appeal right in holding that the trial Judge’s “ex post facto” compliance with the mandatory provisions of Section 314 was in order.

2. Was the appellant rightly convicted of murder, when his main defence was not considered, simply because his alibi was rejected
3. Was the alibi of the appellant properly considered before being rejected.
4. Whether the Court of Appeal was right in confirming the conviction of the appellant for murder when the prosecution did not discharge the onus of proving the guilt of the appellant beyond reasonable doubt”

The issues formulated in the respondent’s brief read:

“(1) Whether there was sufficient compliance by the learned Investigating Magistrate who conducted Preliminary Investigation into the charge of murder, with the provisions of Sections 312, 314, and 323 of the Criminal Procedure Law, Cap. 49, Vol. II, Laws of the Bendel State of Nigeria, 1976.

(2) Whether the subsequent trial of the appellant in the High Court was a nullity when objection was not taken before but after plea.

(3) Whether the alibi of the appellant was rightly rejected.

(4) Whether the appellant was rightly convicted of murder”.

It can be seen that the issues framed in both briefs are similar but differently worded. It must however be observed that issue 2 in the respondent’s brief is strictly not an issue arising from any of the grounds of appeal. It only serves as an argument to defeat the contention of the appellant as to the effect of the alleged non-compliance with section 314(1) of the C.P.A.

As already pointed out earlier in this judgment the issue of non-compliance with section 314(1) of the C.P.A. was not raised until 28/9/87, that is, after the appellant had pleaded to the charge on 21/9/87. Section 167 of the C.P.A. specifically states that any objection to a charge for any formal defect on the face thereof shall be taken immediately after the charge has been read over to the accused and not later. In my view the question of non-compliance with section 314(1) of the C.P.A. is not strictly “a formal defect on the face” of the charge. The position however is that by section 77 of the C.P.A. criminal proceedings may be instituted in the High Court by different methods, two of which are, (1) by information of the Attorney-General of a Sate in accordance with the provisions of section 72, and (2) by information filed in the Court after the accused has been committed for trial by Magistrate under the provisions of Part 36.

The difference between information filed in accordance with section 72 and that filed after the accused has been committed for trial by Magistrate is that in the former the application for the issue of information must be accompanied by statement on oath or otherwise disclosing sufficient evidence of the commission of an offence by the accused, while in the latter the information is based on the committal order of the magistrate following a preliminary inquiry.

Although failure to comply with any of the relevant provisions of Part 36 may not be apparent on the face of the charge, and thus cannot be said to come strictly within the purview of section 167, it seems to me that where an information is known to the accused or his counsel to be founded on a defective committal order or that it is not in consonance with the provisions of section 72 of the C.P.A., objection to it should be taken immediately after it has been read over to the accused because he would be saying in effect that there is no valid information to which he could plead; Pleading to it is a submission to trial on a defective charge, if the defect does not deprive the court of jurisdiction.

In the case of Donald Ikomi & Ors. v. The State (1986) 3NWLR (Pt. 28) 340 at page 370, it was held by this Court, per Aniagolu, J.S.C., that the proper stage to bring a motion to quash an indictment is before plea of the accused is taken as a trial on a bad indictment is an exercise in futility and in some cases such exercise may be founded on lack of jurisdiction.

That is not all. As rightly pointed out by the Court of Appeal, the mode of objection to the committal order was patently wrong. No formal application, supported by an affidavit to which the record of preliminary inquiry or relevant pages of the depositions or committal order ought to be attached, was filed. In effect the record or committal order was, strictly speaking, not before the court at that stage. There is merit in the observation of Uche Omo, J .C.A., in his leading judgment that “the proper procedure which defence counsel in the Court of Appeal should have used to raise this objection is to apply for an administrative review (a certiorari) to quash the order of committal”. He cited in support the persuasive case of the State v. Ukochio (1964) NMLR 100 at page 101, the facts of which admittedly are not similar to the instant appeal, where Mbanefo, Chief Justice, Eastern Region, ruled that “if the accused feels that his committal was wrong, the proper procedure is for him to apply for a writ of certiorari to quash the committal”.

At least the appellant ought to have filed a formal motion supported by an affidavit, praying that the committal order be quashed. In effect the appellant raised his objection without formally placing before the court the record of proceedings or committal order. The court however made use of the record. Ordinarily, a trial court is not entitled to look at a deposition in a preliminary investigation where such deposition is not in evidence (see Dabit Meckam v. The Queen (1959) SCNLR. 428 at page 430).

However where the record of the preliminary inquiry was produced and made use of by or on behalf of the accused person in his defence or for purposes of a preliminary objection as in this case and the prosecution and the court also adverted to it, the record would be treated, to all intents and purposes, as having been tendered in evidence. I shall return to this point later in this judgment.

I have already set out the provisions of section 314(1) of the C.P.A. I will again set it out along with sub-sections (2) to 5(a). They read:

“314.(1) If at the close of the evidence for the prosecution a prima facie case has in the opinion of the Magistrate been established against the accused, immediately after the last witness for the prosecution has been bound over to attend the trial the Magistrate shall again read the charge or read the amended or substituted charge to the accused and explain the nature thereof to him in ordinary language and inform him that he has the right to call witnesses and, if he so desires, to give evidence on his own behalf.

(2) After so doing the magistrate shall then address to him the following words or words to the like effect:

“Do you wish to say anything in answer to charge You are not obliged to say anything unless you desire to do so, but whatever you say will be taken down in writing and may be given in evidence upon your trial.”

(3) Before the accused makes any statement in answer to the charge, the Magistrate shall state to him and give him clearly to understand that he has nothing to hope from any promise of favour and nothing to fear from any threat which may have been held out to him to induce him to make any admission or confession of his guilt, but that whatsoever he then says may be given in evidence on his trial notwithstanding the promise or threat.

(4) (a) Whatever the accused then states in answer to the charge shall be taken down in full and shall be read over to the accused who shall be at full liberty to explain or add to his statement which shall be signed by the magistrate and also, if the accused so desires, by him and shall be transmitted to the court of trial with the depositions of the witnesses in manner hereinafter provided.

(b)On the trial the statement of the accused taken down as aforesaid, and whether signed by him or not may be given in evidence without further proof thereof unless it is proved that the magistrate purporting to sign the statement did not in fact sign it.

(5) (a) Immediately after complying with the requirements of this section relating to the statement of the accused and whether the accused has or has not made a statement the magistrate shall ask the accused whether he desires to give evidence on his own behalf and whether he desires to call witnesses.”

(italics supplied)

Section 323 which is also relevant to this appeal reads”

“The Magistrate before determining whether he will or will not commit any accused person for trial, shall take into consideration his statement or any such evidence as is given by him or his witnesses.”

(Italics mine)

There is no denying the fact that the above provisions of the C.P.A. are mandatory and that failure to carry them out in substance may render the committal of an accused person to the High Court for trial a nullity. From the record of the preliminary inquiry to which learned counsel for the appellant drew the attention of the trial Court at the inception of the trial, the contents of which have not been disputed by the appellant, it is obvious, as pointed out by the Court of Appeal that “the ruling, committal and binding over of witnesses, all dated 11th September, 1986 are at pages 14 and 17 of the depositions, while the reading over of the charge, etc. to the accused is dated 16th September, 1986 at page 16 of the said depositions”.

In his judgment the learned trial Judge reasoned thus:

“The issue here is whether the Magistrate complied or failed completely to comply with S. 314 of the C.P.L. It is true that the ruling and committal order which constitute exhibit ‘H’ are at page 14 of the deposition by the Magistrate but is that all Pages 15-17 of the deposition showed clearly that the Magistrate complied with the mandatory provisions of S.314 of the C.P.L. contrary to the submission of counsel for the accused. She might not have complied with the provisions of the law simultaneously, but the fact remains that there was compliance and the accused was not deceived. Although he did not say so in clear terms I can see that the point made by the learned Counsel for the accused is that the Magistrate did not apply the law at the same time. If this is the case (and I believe it is) then his submission is not based on non-compliance with the law as such but on failure to comply with it on the same date or time and this in my view has not occasioned any miscarriage of justice as the accused was given the desired opportunity of being heard pursuant to S. 314 of the C.P.L.”

Uche Omo, J.C.A., in agreeing with the learned trial Judge treated the matter thus:

“Finally, on this issue; what is the effect of the Magistrate’s “ex post facto” compliance with Section 314 aforementioned Is it fatal to the proceedings or is it merely an irregularity and/or a technicality which can be overlooked and/or contained, provided it does not occasion a miscarriage of justice:”

“In my view this is a procedural irregularity which should not be allowed to stand in the way of dispensing substantial justice. Vide Akai Akpan Udo Ekwere v. The State (1981) 9 S.C. 4 (5/6 – per Aniagolu, J.S.C.), Syslvester Ogbomor v. The State 19852 S.C. 289; (1985) 1 NWLR (Pt.2) 223. After all, the purpose of a preliminary inquiry is to apprise an accused person of the evidence on which the prosecution rely to prove the case against him.”

“The committal proceedings in this instance were therefore carried out substantially in comformity with the relevant provision of the Criminal Procedure Act, and issues 1 and 2 therefore fail.”

In my view failure to comply strictly with rules such as the provisions of sections 314 and 323, although couched in mandatory terms, will not render the proceedings null and void if they are substantially complied with and if the objective of the rules is not defeated by failure to strictly comply with them.

In the instant case the Magistrate committed the appellant for trial with out taking into consideration “his statement or any such evidence as is given by him or his witnesses” as required by section 323. This lapse occurred be-caused the accused had not then been called upon to give evidence, if he so desired.

The position however is when he was subsequently called upon the appellant, as is often the case with accused persons in preliminary inquiry, opted not to give evidence or call any witness. In effect “there was no statement or any such evidence as is given by him or his witnesses” which the court failed to consider. It is not the case for the appellant that if the Magistrate had called on him before his committal for trial he would have given evidence and called witnesses. One reason for asking the accused to make a statement if he desires, is to ensure that such a statement is available to be given in evidence at the trial. See Section 314 (5) (b).

Another purport of receiving statement from an accused person if he so desires is for the purpose of transmission to the court of trial. This is clear from section 314 (5) (d) which states:

“(d) All statements made by the accused shall be taken down in writing and all evidence given by him or any such witness as aforesaid under this subsection shall be taken down in writing in the form of a deposition and the provisions of paragraph (e) of section 312 relating to the reading over and signing of depositions of witnesses for the prosecution shall apply to such depositions. Such statement and depositions shall be transmitted to the court of trial together with the other depositions of the witnesses for the prosecution.”

The objective of transmitting the statement made by an accused person to the court of trial would have been defeated if the magistrate after her committal order failed to inform the accused of his right to make a statement or testify or call witnesses. Since the Magistrate subsequently called on the appellant to exercise his right in accordance with the relevant provisions of the C.P.A. the irregularity was minimised, if not completely put right.

The provisions of section 324 also seem to detract from the requirement of section 323. It states:

“Where there is a conflict of evidence, the Magistrate shall consider the evidence to be sufficient to put the accused on his trial if the evidence against him is such as, if uncontradicted, would raise a probable presumption of his guilt.”

In effect the Magistrate is at liberty, regardless of the contrary evidence of an accused person and his witnesses or contradictory evidence from certain prosecution witnesses, to commit for trial on the evidence of other prosecution witnesses alone, if the evidence against him is such as, if uncontradicted, would raise a probable presumption of his guilt. This means that failure to consider the evidence of an accused person before his committal would really not affect the reasonableness or otherwise of his committal for trial if there is evidence to support the committal order.

It is also instructive to note that a law officer or state counsel may refer back a case for further evidence where an accused person has been committed for trial. Section 333(1) reads:

“At any time after the receipt of the depositions and other documents mentioned in section 330 and before the indictment is filed, a law officer or state counsel may, if he think fit, refer back the case to the Magistrate with directions to re-open the inquiry for the purpose of taking further evidence, and with such other directions as he thinks proper. If a case is referred back as herein provided the inquiry shall be reopened and the case shall be dealt with in all respects as if the accused person had not been committed for trial.”

It is thus obvious that if the investigating Magistrate had not substantially complied with the relevant provisions, it would have been necessary for a law officer to refer the case to the Magistrate to comply.

In the course of the trial in the High Court the appellant tendered a certified copy of the order of committal which was admitted as Exhibit H. The entire record of inquiry was not tendered. It was the contention of learned counsel for the appellant that there is nothing in Exhibit H to show that after the committal order the case was adjourned to another date. In effect it was his contention that there is nothing to show that the magistrate subsequently complied with the provisions of section 314 requiring her to inform the appellant that he had the right to make a statement and call witnesses if he so desired.

As I have earlier stated, all parties, including the court, had at the inception of the trial when the objection against the committal order was first raised referred to relevant portions of the record of inquiry although not tendered in evidence. Indeed counsel for the appellant made reference to the fact that it was after the committal order at page 14 of the record of the preliminary inquiry that the magistrate subsequently at page 16 read and explained the charge to the accused. (See page 3, lines 20 to 22 of the record of appeal).

As Uche Omo, J.C.A., rightly observed in his judgment at page 83, counsel for the appellant having made the deposition himself part of his case and “once the trial judge properly looked into it, on the invitation of the parties, and ruled on it (vide page 4, lines 1 to 8), failure to formally tender those pages in the evidence must be regarded as not fatal to subsequent reliance and/or reference to them..”

That there was procedural irregularity is not in doubt. It is however an irregularity which has not led to a miscarriage of justice. The irregularity is not of a migistrate’s failure to comply at all with statutory provisions but of a failure to comply with it strictly. It is the paramount duty of courts to do justice and not cling to technicalities that will defeat the ends of justice. It is immaterial that they are technicalities arising from statutory provisions, or technicalities inherent in rules of court. So long as the law or rule has been substantially complied with and the object of the provisions of the statute or rule is not defeated, and failure to comply fully has not occasioned a miscarriage of justice, the proceedings will not be nullified.

A nigh similar situation arose in the case of Edet Akpan v. State (1986) 3 NWLR Part 27225. By section 287(1) of the C.P.A. “at the close of the evidence in support of the charge if it appears to the court that a prima facie case is made out against the defendant sufficiently to require him to make a defence, the court shall call upon him for his defence and

(a) ………………………

(b) if the defendant is represented by a legal practitioner, the court shall call upon the legal practitioner to proceed with the defence.

In that case learned counsel had indicated he would make a no case submission and would rest his case on that of the prosecution. The learned trial judge did not formally call on the legal practitioner to proceed with the defence. In this court, in his judgment, Eso, J.S.C., at page 232 had this to say:

“Surely the Criminal Procedure Law; a pre-ordinance is not to be turned to the law of children. It suffices, if in content, the statute has been complied with.”

(italics supplied)

It was in same case that Oputa, J.S.C., observed at page 235 that

“the courts should see to it that justice is never defeated by technical rules of procedure. These rules should be seen as subservient handmaids to justice not as omnipotent masters at war with justice.”

I now refer to other two cases in which this court dealt with the effect of failure to comply with the provisions of section 287(1)(a) requiring the trial court to call upon the accused for his defence at the close of the prosecution’s case where it appears to the court that a prima facie case made out, and that the court shall inform him of his right to make a statement, without being sworn or given evidence in the witness box or not to say anything at all, if he so wishes.

The first case is Onueha Anya & Ors. v. The State (1965) NMLR 62 at page 65. The complaint of the appellant in this court, who was not represented by a legal practitioner during his trial in the High court, was that the learned trial Judge erred in law in not asking him if he had any witness to examine as required by the mandatory provisions of section 287(1)(a) of the C.P.A. It was held by this Court (Ademola, C.J.N., Brett, Biaramian, Onyeama and Ajegbo, JJ.S.C.) that failure to comply with section 287 (1)(a) of the C.P.A., although an irregularity, does not render the trial null; the effect of such failure must depend on the circumstances of the particular case, and the appellate court is at liberty to allow the appeal and order acquittal or a retrial, or dismiss the appeal if it considers that no substantial miscarriage of justice has occurred”.

The second case is that of Arua Eme v. The State (1964) 1 All NLR. 416 at 421. In that case this court reached the same decision as in Anya v. The State (supra) as to the effect of non-compliance with section 287(1)(a) of the C.P.A It is thus clear that failure to comply with statutory provisions relating to procedure will not necessarily render the proceedings or act of a judicial officer during the proceeding null and void. It all depends on the facts of each case.

I have already taken the pains, I think, to show that in this case there was no infraction of section 314 and other relevant sections of the C.P.A. sufficient to render the committal order null and void and that no miscarriage of justice occurred by the apparent irregularity in the conduct of the preliminary inquiry by the Magistrate. The submission of learned counsel for the appellant that the effect of non-compliance with the relevant provisions of the C.P.A. was to render the committal order a nullity and the subsequent trial of the appellant void is misconceived. I therefore affirm the decision of the court of appeal that the committal order was not a nullity and that the subsequent trial was valid.

Then next issue is whether the “main defence” of the appellant, apart from the defence of alibi, was considered by the trial court. The Court of Appeal held that “it was not true as submitted by counsel that the trial court did not consider and make a finding on whether or not the appellant stabbed or did anything else to the deceased.” There is a third issue, to wit, “was the alibi of the appellant properly considered before being rejected”. The two issues will be taken together.

It is the contention of the learned counsel for the appellant Mr. Bashua, that the trial judge considered only the evidence of the prosecution which he believed. According to him there was pot a single reference to the evidence of the appellant. It seems to me obvious from the record of proceedings that the learned trial Judge reviewed the evidence adduced by the appellant as shown at pages 32 to 33 of the record of appeal. This was after reviewing the evidence adduced by prosecution witnesses. The evidence of the appellant touched principally on his whereabout at the time the deceased was stabbed and how and where he was arrested. He then denied stabbing “anybody on the night of 4th August, 1985”. In effect the defence of the appellant was in the main that of an alibi and his denial that he told PW.2 that he fought and stabbed anybody.

The learned trial Judge also observed that “as a matter of fact the only submission outside legal technicalities by the learned counsel for the accused was simply to the effect that the accused was not guilty as charged and that the court should believe the accused and not believe the prosecution witnesses.

After reviewing the evidence of the accused, which is apparent at pages 32 to 33 of the record, the learned trial Judge proceeded to appraise at page 40 the evidence of the appellant. In doing so he again adverted to the evidence adduced by the appellant. At pages 41 to 42 he then made his findings of fact thus:

“I find the prosecution witnesses most truthful and reliable in their testimony before this court. I believe the evidence of P.W.1 who was among the party that encountered the accused and another person on 4th August, 1985. I believe the evidence of P.W.1 which uncontradicted that he saw the accused armed with bottle and dagger and that he stabbed the deceased as a result of which he died. I also believe lire evidence of P.W.2 to whom the accused confessed a fight with some people on the 4th August, 1985 and the accused’s fears that one of his assailants had been alleged dead. I believe that P.W.2 that he sheltered and fed the accused on the night of 4th August 1985. I also believe that as a result of the confession made to P.W.2 by the accused P.W.2 went to the police station to make a report following which the accused was arrested with exhibit ‘A’ around his waist at about 2.00a.m. on the 5th August 1985. The evidence of P.W.1, P.W.2, P.W.5 exhibits ‘A’, ‘B’ and ‘G’ show conclusively that the accused was responsible for the act which killed the deceased. The accused who seems to me to be a congenital liar said in the witness box that he saw exhibit ‘A’ for the first time at the police station and in his statement to the police exhibit ‘F’ he said exhibit ‘A’ was 8 shown to him at P.W.2’s house in the early hours of 5th August 1985. The possible inference one could draw from this unfortunate incident is that the accused and his partner at large were probably engaged in a stealing escapade which went amiss and feeling insecured with shouts of ole! ole! around them became vicious on their way of escape and the accused in order to avoid being caught applied exhibit’ A’ – the dagger indiscriminately on innocent people and this resulted in the death of the deceased.”

I do not see in what other way the learned trial Judge would have considered the defence of the appellant more satisfactorily than he did. Perhaps, what learned counsel expected of the learned trial Judge was a direct assertion that he did not believe the appellant when he said he stabbed no one. What the learned trial Judge did was to set the defence of the appellant against the case for the prosecution and had no difficulty in coming to the conclusion that the evidence of the prosecution witnesses was very reliable. He did not have to say that he rejected the evidence of the appellant, “a congenital liar”, as a blatant falsehood before it can be said that he considered his defence. That the learned trial Judge rejected the defence of the appellant that he did not stab the deceased is clear from his rejection of his alibi and the credence he placed on the evidence of P.W.1 and P.W.2.

The learned trial Judge dealt with the question of alibi set up by the appellant thus at pages 42 to 43:

The alibi set up by the accused to the effect that he was not at the scene of crime is feeble and unconvincing, moreso as he was fixed at the scene of crime with unassailed evidence by the prosecution. P.W.1 was not just knowing the accused for the first time; they hail from the same village and so also is P.W.2. P.W.1 said he saw him clearly at the scene of crime and I believe him. The accused did not adduce any evidence of malice against any of the prosecution witnesses to show that they told lies against him. The defence of alibi that he was not at the scene of crime and that he played ball at the Council School from 8.00 a.m. to 4.00p.m. before going to P.W.2’s house at 5.00 p.m. on the 4th August 1985 is therefore untenable.

It is also implicit in the learned Judge’s findings that he rejected not only the alibi adduced by the appellant but also his evidence that he did not commit the offence.

It was the contention of learned counsel that it is not the duty of the accused person to prove alibi, and that once an alibi is raised by an accused person, it is incumbent on the prosecution to investigate the alibi. He cited in support Adio v. The State (1986) 3 NWLR (Pt. 31) 714 and Onafowokan v. The State (1987) 3 NWLR (Pt.61) 538.

There is no doubt that if an alibi is properly raised by the accused, it is the duty of the prosecution to investigate and disprove it. It is however, the duty of the accused person relying on an alibi he give the details of the alibi he sets up to enable the prosecution to investigate it. His duty involves letting the police know at the earliest opportunity where and with whom he was at the material time (See Udo Akpan v. The State (1986) 3 NWLR (Pt. 27) 258.

In his statement to the police, Exhibit F, all that the appellant stated was that the left home on 4/8/85 around 7.00 a.m. to play ball at the Council School along Macpherson Road and that he was there up till 4.00p.m. He gave no name of any of the persons he played with. According to him he went there alone and left there alone. From there he went to the house of P. W.2. This statement is devoid of any clue to send the police on any inquiry. Indeed, the only portion of his statement that can be regarded as an alibi is that portion where he claimed he was in the house of P.W.2 at the material where he claimed he was in the house of P.W.2 at the material time the deceased was stabbed.

It is no proof of alibi for an accused person merely to assert, as in this case, that he was not at the scene of crime and could not have been there because he was elsewhere. He must lead credible evidence. The evidential burden of adducing evidence to support a defence of alibi is on the accused person raising such defence because the facts upon which the defence of alibi rests are facts peculiarly within the knowledge of the accused person raising such a defence. See Nwabueze v. The State (1988) 4 NWLR (Pt. 86) 16.

The evidence of the appellant was obviously not credible. The evidence of the prosecution fixing him at the scene of crime and which was believed by the trial Judge and affirmed by the Court of Appeal is unimpeachable. The evidence of the appellant in court in proof of his alibi was just as sketchy and hollow as his statement to the police. Said he:

“On 4th August, 1985, I woke up at about 7.00 a.m. and cleaned my house up to 8.00 a.m. After cleaning the house I went to play ball at Council School. We played ball up to about 4.00 p.m. After this I left for John’s house – P.W.2’s house to take my wrist watch. I did not meet him P.W.2 at home. At about 5.00 p.m. I entered P.W.2’s house and sat down to wait for him. There I slept off on the chair. At about 2.00 a.m. in the night I suddenly found some people bending my hands backwards and when I looked, one of them pointed a gun at me.”

P.W.2 on the contrary testified to the effect that the appellant did not get to his house until about 11.00 p.m. The Judge believed him.

Learned counsel further submitted that contrary to the finding of the learned trial Judge that the appellant did not adduce any evidence of malice against prosecution, which was affirmed by the Court of Appeal, there was evidence of malice given by the appellant against P.W.2 to the effect that he and P.W.2 were standing trial for theft and that he had good reasons to lie against him.

I am in agreement with the Court of Appeal that the defence of alibi was not rejected or held untenable because no evidence of malice was adduced.

A variety of reasons was given by the learned trial Judge. The Court of Appeal reasoned that the inference from the observation of the learned trial Judge in the con in which he said that “the accused did not adduce any evidence of malice against any of the prosecution witnesses to show that they told lies against him” was that no evidence of malice was led to cast aspersion on or dislodge the evidence of the prosecution witnesses, so as to probably lead to the court coming to the conclusion that some or all of them were telling lies against the appellant. That no evidence of malice was adduced was not the reason for rejecting the alibi. Even if it was one of the reasons, the error in so holding would not affect the decision of the learned trial Judge.

The fourth issue is “whether the Court of Appeal was right in confirming the conviction of the appellant for murder when the prosecution did not discharge the onus of proof of the guilt of the appellant beyond reasonable doubt.” This issue in my view was wrongly formulated. It is based on the wrong assumption that the prosecution in fact did not discharge the onus which rested on it. The issue should read “whether the prosecution discharged the onus of proof which rested on it to establish the guilt of the appellant.”

Learned counsel for the appellant referred to the evidence of P.W.7 who was at the scene of the incident with P.W.1, but who claimed that he did not recognise the two men who attacked them at the scene of crime. For this reason, learned counsel argued that the Judge ought not to have believed the evidence of P.W.1. According to him, the court should not pick and choose whom to believe. In my view the submission of learned counsel has no merit whatsoever.

There is no contradiction in the evidence of P.W.1 and P.W.7 The fact that P.W.7 could not recognise the person who stabbed the deceased is no ground for holding that any other person at the scene could not have recognized who attacked the deceased. Indeed, P.W.7 explained under cross-examination that “P.W.1 showed mc the accused person as both of them had lived together it was not dark because there was light around……..I could not identify him because I did not look at two of them well at the time they came and we were stabbed.” P.W.7 was saying in effect that if he had known the appellant before the date of the incident and had looked at “two of them well” he would no doubt, like P.W.1 have been able to recognise the appellant.

Learned counsel also submitted that there ought to have been an identification parade. There is also no merit in this submission. An identification parade was not necessary since it was only P.W.1 who said he recognised the appellant who was well known to him and gave his name in his statement as Mathew Obakpolor.

It was also the submission of learned counsel that P.W.2 was a tainted witness because of his criminal involvement with the appellant and that he had a purpose of his own to serve, and that his evidence should have been treated with caution. Under cross-examination P.W.2 said he had no quarrel with the appellant and went on to say that “in the case where both of us were charged together, it was the police and not the accused who brought me to court on a charge of receiving. The accused was charged for breaking and entry.” I do not agree that P.W.2 could be regarded as someone with a purpose of his own to serve and that he was a tainted witness. Granted that he had a purpose of his own to serve the information supplied by him led to the arrest of the appellant and the recovery of the dagger, Exhibit A, from his person. Exhibit F, the forensic laboratory report, showed that the dagger was smeared with human blood, although it was not suitable for grouping. The evidence of P.W.2 is corroborated by the evidence of P.W.1.

On the whole the Court of Appeal treated all the issues placed before it and correctly resolved them in favour of the prosecution. The appeal fails. It is dismissed. The decision of the Court of Appeal affirming the conviction and sentence of the appellant is accordingly upheld.

Other Citation: (1991) LCN/2479(SC)