Olanrewaju Ayan V. The State (2013)
LAWGLOBAL HUB Lead Judgment Report
T. MUHAMMAD, J.S.C.
From the facts contained in the record of appeal placed before this Court, the appellant, herein, along with three other, were charged with a three-count of conspiracy attempted murder and murder. The counts are as follows:
STATEMENT OF OFFENCE
Conspiracy to commit felony to wit murder contrary to section 324 of the Criminal Code Cap. 30, Vol. 11 Laws of Ondo State of Nigeria 1978 as applicable in Ekiti State.
PARTICULARS OF OFFENCE
SUNDAY JEGEDE (M), OLUWATOYIN ABOKOKUYANRO (M), SUNDAY ODO (M), OLANREWAJU AYAN (M) on about 29th day of November, 1993 at Iyinfe Farm, Oke Ayedun Ekiti in the Ikole Judicial Division conspired to murder one Mayowa Adeleye (M)
STATEMENT OF OFFENCE
Murder, Contrary to section 313  of the Criminal Code Cap. 30, Vol. 11, Laws of Ondo State 1978 as applicable in Ekiti State.
PARTICULARS OF OFFENCE
SUNDAY JEGEDE (M), OLUWATOSIN ABOKOKUYANRO (M), SUNDAY ODO (M), OLANREWAJU AYAN (M) on or about the 29th day of November, 1993, at Iyinfe Farm, Oke Ayedun Ekiti in Ikole Judicial Division murdered one Mayowa Adeleye [M]
STATEMENT OF OFFENCE
Attempted Murder, contrary to section 320 of the Criminal Code Cap. 30 Vol. 11, Laws of Ondo State 1978 as applicable in Ekiti State.
PARTICULARS OF OFFENCE
SUNDAY JEGEDE (M), OLUWATOSIN ABOKOKUYANRO (M), SUNDAY ODO (M), OLANREWAJU AYAN (M) on or about 29th day of November, 1998 at Iyinfe Farm, Oke Ayedun Ekiti in Ikole Judicial Division attempted to murder one FALADE OJO (M).”
The plea of each of the accused persons was taken wherein each pleaded “not guilty” in all the counts. Out of the four accused persons before the trial court, one of them, Mr. Sunday Jegede died in course of the proceedings and his name was struck out.
The case of the appellant was that he was not at the scene of the crime, that he travelled to Ibadan and visited some people on the fateful day and that he was not among the people arrested by PW 2 and brought before of the Kabiyesi of the town.
The case proceeded for full trial. After taking and evaluating the evidence before him, and having considered the final addresses by the parties, the learned trial judge found each of the three  accused guilty as charged under section 319 of the Criminal Code. He sentenced each of them to death on count two (2) and life imprisonment on count three (3). It appears that only the 3rd convict filed and pursued his appeal to the court below. The court below after giving its considered opinion dismissed the appeal.
Dissatisfied further, the appellant appealed to this court on four grounds of appeal.
Briefs were filed and exchanged. Learned counsel for the appellant formulated the following issues for determination thus:
“1. Whether the Court of Appeal was right to uphold the judgment of the trial court to the effect that the appellant’s defence of alibi was rejected and disbelieved despite the failure of the prosecution to tender the report of police investigation on the alibi to court and also in view of the contradicting statements of PW2 and PW3 arising from grounds 1 and 4.
Whether the Court of Appeal was correct in law to uphold the judgment of the trial court that the appellant was among the four people that attacked PW2 and killed the deceased in view of the evidence before the court.
Learned counsel for the respondent adopted the issues formulated by the appellant.
My noble lords should note that appellant’s first issue is on the defence of ALIBI raised by the appellant. ALIBI, (a Latin word) is a specific legal term, according to Garner [a dictionary of Modern Legal Usage, 2nd edition, Oxford, 41] referring to the defence of having been at a place other than the scene of crime. The argument of learned counsel for the appellant on the defence of alibi put forward by the appellant is that there was evidence before the trial court and the lower court that immediately the appellant was arrested, he timeously raised that defence in his statement to the Police and that it was made within 3 days of his arrest. The appellant’s alibi was to the effect that he was not at the scene of the crime and that he was not in town when the offence of murder was committed and that PW6 confirmed that the alibi was investigated and found to be true. The trial court and the lower court erred in law to have ignored the evidence of PW6 on this vital point in arriving at the decision to reject the appellant’s defence of alibi. Learned counsel for the appellant cited and relied on the case of CHUKWU V. THE STATE (1996) 7 NWLR (part 463) 686.
In his submission on the issue of ALIBI, the learned counsel for the respondent stated that the evidential burden was faithfully discharged by the prosecution by duly investigating the ALIBI of the appellant and duly rebutting the same with other evidence that squarely discredited same. He cited the reference made by the learned counsel to the appellant in paragraph 4.4 of his brief where confirmation of investigating the ALIBI was done by PW6 at page 79 of the record. The respondent thus, clearly discharged the duty on him to investigate the ALIBI pleaded by the appellant.
Now, ALIBI is a question of fact that must be established or discredited by credible evidence. Once the prosecution has discharged the onus placed on it by adducing evidence against the defence put forward by the accused then the onus shifts on the accused to call evidence to weaken or discredit the evidence of the prosecution.
In any event, it is the law that while the onus rests on the prosecution to disprove an alibi, the accused has first to discharge the evidential burden of setting up enough facts on which an alibi can rest. See: AGU V. THE STATE (1985) 2 NSCC, 1197. It is the law as we, that where a defence of alibi has been promptly and properly put up, the burden is on the prosecution to investigate it and rebut such evidence in order to prove the case against the accused person beyond reasonable doubt. Although there may be occasions on which failure to check an alibi may cast doubt on the reliability of the case for the prosecution, it is not in all cases that such failure to investigate an alibi would be fatal to the prosecution’s case. See: NTAM & ANOR V. THE STATE (1967) NSCC 1, OZAKI V. THE STATE  1 NWLR (part 124) 92 at page 96. Moreover, if the alibi had been true it would have been open to the appellant to call witnesses in support thereof. See: NTAM & ANOR. V. THE STATE (supra). In OZAKI’S case [supra], this Court observed:
“However, it does not always follow that once the prosecution failed to investigate an alibi, such a failure is fatal to the case of the prosecution. The trial court has a duty, even if the absence of investigation to consider the credibility of the evidence adduced by the prosecution vis-a-vis the alibi.”The holding of the learned trial judge has brought the issue out clearly when, at page 132 of the Record of appeal, he stated as follows:
“I do not agree with the learned counsel that the prosecution did not investigate the defence. I think the prosecution on the contrary did. For, the PW6 made it clear in his testimony that all the persons mentioned by the 3rd accused were called and they confirmed his story. The only thing that the police did not do was, perhaps, to go to Ibadan. But I hardly understand what they could have gone to do at Ibadan if the police called all the persons named in his statement and they had talked to them and they confirmed what he said. The question is whether, notwithstanding, what these people told the police about the [sic] where he went to, the police thought the 3rd accused and his friends told the truth or that they merely cooked up the stories to save his neck. I doubt if anyone will because these clearly are facts which render the 3rd accused person’s claim impotent.”
It is thus beyond any peradventure that the learned trial judge considered the defence of the appellant on alibi and rejected same. The lower court also without much ado, affirmed the same where UWA, JCA, held, inter alia, as follows:
“The PW6 also stated that he questioned the people the appellant mentioned he was with, on the other hand the PW2 had narrated how he was attacked by the four people including the appellant in the bush surrounding the uncompleted building in the night of the incident; within the vicinity where the body of the deceased was found on 30th November, 1998. At the scene in the bush the late Sunday Jegede called out the appellant and other three people from the bush, all four assailants of the PW2 were arrested and taken to the Police station.
The appellant did not lead evidence to the contrary, that is, that he was not one of the four people that the PW encountered in the bush that night of 29th of November, 1998, and the issue of the mistaken identity of the appellant did not and could not have arisen because the PW2 knew the appellant and called him by name in course of trial. The learned trial judge at page 133-134 of the records was therefore right to have held and made the following observation thus, concerning the appellant:
“He was actually one of those accused persons arrested near Igbo Oro on the night when the PW2 was fought there. PW2 knew him and unmistakenly identified him as one of the persons who fought him. He did not deny that he fought the PW2, what he denied was the allegation that he attempted to kill the PW2. As a matter of fact he did not deny that he was at Igbo Oro, the creation of the other accused persons and himself. PW2 called him by his sobriquet but surely identified him as standing in the dock. Furthermore, PW2 gave account of how the accused persons were called by Sunday Jegede, one after the other, and they emerged from the bush and the 3rd accused inclusive. The 3rd accused was one of the four suspects arrested in the bush on the night of 29th of November, 1998 and taken before the Oba and who the Oba asked the police to keep an eye on. Throughout, he did not deny being arrested that night and taken to the Oba.’ (underlining mine for emphasis)
In my humble opinion the learned trial judge was right in disbelieving and rejecting the appellant’s defence of alibi and I so hold.”
That apart, it is to be noted generally, that in a claim of an alibi, where the material facts of it are found to be false, such as when a person claimed that he was in a particular place or with a particular person(s) but it turned out in investigation that he was not there at the material time, as in this case, that claim must be held to be patently false. For clearity sake, there were inconsistencies in the material facts of the alibi raised by the appellant:  In his extra-judicial written statement to the Police, the appellant claimed that he was in Ibadan at the time the crimes were committed. But in his testimony:
But in his testimony in court at page 83 of the record of appeal, he stated that he was in Police custody, then changed it on second thought that he was in Ibadan at Sango. Again, he said that he was at Eleyele looking for petrol. Sango and Eleyele are not the same though both are in Ibadan. Thus it is not clear whether the appellant was at Sango or at Eleyele. These contradictions in the appellant’s alibi cannot be explained away as a result of being ‘jittery’ as the appellant’s counsel has argued. Thus, where the accused person gives conflicting stories as to his whereabouts at the material time under consideration, there is no duty on the prosecution to investigate the alibi and in such a case, no alibi is established. See: OZAKI V. THE STATE [Supra]. The conflicting stories of the appellant in the instant case have even rendered his alibi as not established. Thus, it means that the respondent was not even duty bound to investigate it and whether or not the alibi is investigated, it will not invalidate the conviction of the appellant. But, however, to be at the safer side, the alibi was investigated and rebutted by the respondent.
Furthermore, in his cross-examination he admitted that he was arrested at Oke-Ayedun Police Station on the 28th of November, 1998. He was arrested with the other co-accused on the fateful night. He never denied this fact. Thus, the appellant was at the scene of the crime.
Again, appellant never denied or rebutted that he was arrested with the other co-accused on the fateful night at Oke Ayedun Police station on the 28th of November, 1998. This gives a presumption that the appellant was at the scene of the crime. It is the law my lords, that where the presence of an accused is fixed at the scene of the crime, the defence of alibi, no matter how beautifully put up is defeated and need no investigation. See: NJOVEN V. THE STATE (1973) NSCC 257 at page 278; OMOTOLA & ANOR. V. THE STATE (2009) 8 ACLR 29 at page 144.
Finally, on this issue, it can be seen that both the trial court and the appeal courts are agreed in their decisions that the defence of alibi would not avail the appellant. Such decisions are on concurrent finding of facts. It is the practice of this court not to interfer with such findings unless they are perverse; manifestly wrong or occasion a miscarriage of justice. None of these factors is found in this appeal. I hereby, decide issue one in favour of the respondent. See: MBELE V. THE STATE (1990) 4 NWLR (part 145) 485.Appellant’s issue no.2 is whether the court below was correct in law in upholding the judgment of the trial court that the appellant was among the four people that attacked PW2 and killed the deceased in view of the evidence before the court. I think I should make it clear to the learned counsel for appellant that the primary duty/responsibility of a trial court is to decide living issues between the litigating parties before it and hand down justice to the deserving party after careful consideration of the evidence and the prevailing law where the balance of justice favours such a party. See: SCHRODER V. MAJOR  2 NWLR (part 101) 20; PASCUTTO V. ADECANTO (NIG.) LIMITED (1997) 1 NWLR (part 529) 467 at page 486. It is not part of the trial court’s duty/function to manufacture evidence for any of the parties. A party wins on the strength of his evidence (case) and loses where his evidence (case) is patently weak, unsupportable and unjustifiable. See: SAMPSON OCHONMA V. UNOSI (1965) NMLR 321; ADENIJI V. ADENIJI (1972) 1 ALL NLR (part 1) 298 at page 305.
On the other hand, an appeal court can only affirm or dismiss an appeal before it or strike it out, if it appears to be a non-starter. It is not the function of an appeal court to reassess or re-evaluate evidence except where there are genuine complaints from the appellant which justify doing so. See: OMOROGIE & ORS V. IDUGIEMWANYE & ORS. (1985) 2 NWLR (part 5) 41; ABISI V. EKWEALOR (1993) 6 NWLR (part 302) 643 at page 683.It appears from the record that the court below is satisfied with the exercise carried out by the trial court. That was why it affirmed the trial court’s decision. It is thus, the finding of the learned trial judge on the evidence placed before him that:
“Here I must say that the totality of the evidence before me both from the prosecution and DW1 and particularly what happened on the night of 29/11/1998, the attack launched on the PW2 in their attempt to murder him, all pointed this court to one direction that it was these same accused persons who attacked PW2 and murdered Mayowa Adeleye earlier in the day, that day. This is one of the inferences this court can reasonably draw from the conduct of the accused persons, undertaking ritual killings and from the totality of evidence given in this court”. (Underlining supplied for emphasis)
The trial court then went ahead to find the three accused persons including the appellant, guilty of the offences charged, convicted and sentenced each of them to the various sentences they are to serve. Can anyone do any better than did the trial court? Is it not the trial court that saw, heard and assessed the demeanour of the witnesses? That of course is the primary role of any reasonable trial court. The court below, in its concluding part, rightly in my view, observed:
“In my humble view, all these put together, the chain of events is complete, that leads irritably to the inference that the appellant is guilty beyond reasonable doubt of the offence for which he was convicted and sentenced.”
It will not serve any useful purpose for this court to review the evidence placed as learned counsel for the appellant would want this court to do. The court below did the same and it arrived at same conclusion with the trial court. I am not convinced that there is any of the factors: such as perversity of the trial court’s decision or that a miscarriage has been caused to the appellant, which can make this court re-visit the evidence placed before the trial court. All the findings of facts contained therein, as held by the court below, are unassailable. There is no basis for me to interfere. See: EBBA V. OGODO (1984) 1 SCNLR, 372.
I find this appeal unmeritorious and do hereby, dismiss it. I affirm the concurrent decisions of the two courts below.