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Ossai V. People Of Lagos State (2022) LLJR-SC

Ossai V. People Of Lagos State (2022)

LAWGLOBAL HUB Lead Judgment Report

ABDU ABOKI, J.S.C. 

This appeal is an offshoot of the judgment of the Court of Appeal, sitting in Lagos, delivered on the 11th of April, 2014.

The Appellant was arraigned at the High Court of Lagos State, on a two count charge of conspiracy to commit armed robbery, and armed robbery, to wit:

STATEMENT OF OFFENCE – 1ST COUNT

Conspiracy to commit Armed Robbery contrary to Sections 403(A) of the Criminal Code Cap C. 17, Vol. 2, Laws of Lagos State 2003.

PARTICULARS OF OFFENCE

Idris Sanni (m), Stanley Ossai and others still at large on or about the 26th August, 2007, at Adedeji Street, Oke-Afa, Ibeshe, Ikorodu in the Ikeja Judicial Division, conspired to commit a felony to wit: Armed Robbery.

STATEMENT OF OFFENCE – 2ND COUNT

Armed Robbery contrary to Section 402(2)(a) of the Criminal Code Cap C. 17, Vol. 2, Laws of Lagos State 2003.

PARTICULARS OF OFFENCE

Idris Sanni (m), Stanley Ossai and others still at large on or about the 26th August, 2007, at Adedeji Street, Oke-Afa, Ibeshe, Ikorodu in the Ikeja Judicial Division, while armed with offensive weapons to wit: a single barrel gun and saw blade, robbed one Mrs. Omowunmi Adedeji of her handset and the sum of N200,000.00 (Two Hundred Thousand Naira).

The facts leading to this appeal is that the Appellant, who was the 2nd Defendant at the trial Court, was tried together with one Idris Sanni, for conspiring and robbing one Mrs. Omowunmi Adedeji (PW2’s wife), of her handset and the sum of N200,000.00 (Two Hundred Thousand Naira) in her residence at Adedeji Street, Oke-Afa, Ibeshe, Ikorodu, at about 8p.m., on the 26th August, 2007, while masked. A toy rubber pistol, face mask and a saw blade were said to have been recovered from the Appellant and handed over to the Police as the items used in the course of the robbery operation. It was part of the Respondent’s case that the PW2 raised an alarm, which attracted neighbours, and the members of the Odua Peoples’ Congress, (OPC) who cordoned off the area. In the course of combing the area, they discovered the Appellant, who led them to the 1st defendant. Both of them were taken to the Police Station. According to the Respondent, in the course of the Police investigation, the Appellant confessed to committing the alleged offences. The trial Court accepted the Respondent’s case and they were both convicted and sentenced to 21 years imprisonment for the offence of conspiracy, and death by hanging, for the offence of armed robbery.

The Appellant was dissatisfied with the judgment of the trial Court and appealed to the Court below, which allowed the appeal in part, and convicted the Appellant for a lesser offence: that is, conspiracy to commit robbery, and robbery without arms or offensive weapons, under Section 403 A and 402(1) respectively, of the Criminal Code, read with Section 19(3) of the Court of Appeal Act, 2004 as well as case of Nwachukwu v. State (1986) 2 NWLR (Pt. 25) 765 and he was sentenced to 21 years imprisonment. The sentence was backdated to 26th of August, 2007.

It is against this judgment that the Appellant appealed to this Court via a Notice of Appeal, filed on the 26th of April, 2017, containing two grounds of appeal.

In his brief of argument filed on the 2nd of March, 2018, but deemed filed on the 24th of November, 2021, David Ogenyi Ogebe Esq., of Counsel for the Appellant, distilled a sole issue for this Court’s determination, to wit:

Whether the lower Court was right to convict the Appellant for a lesser offence of robbery and conspiracy to commit robbery, on the grounds that the Appellant did not object to the tendering of his retracted Statement and his alibi was not raised in good time and was therefore an afterthought?

Rotimi Seriki, Esq., of Counsel for the Respondent advanced two issues for determination, in the amended Respondent’s brief filed on the 9th of March, 2020, but deemed filed on the 24th of November, 2021. They are:

  1. Whether the learned Justices of the Court of Appeal were right in convicting the Appellant of the lesser offences of robbery and conspiracy to commit robbery, on the basis of the Appellant’s confessional statement, Exhibit A2.
  2. Whether the learned Justices of the Court of Appeal were right in affirming the decision of the trial Court dismissing the defence of alibi raised by the Appellant?

I adopt the sole issue donated by the Appellant in the determination of this appeal, which is:

Whether the lower Court was right to convict the Appellant for a lesser offence of robbery and conspiracy to commit robbery, on the grounds that the Appellant did not object to the tendering of his retracted statement and his alibi was not raised in good time and was therefore an afterthought?

The pith of the submissions of the Appellant is that the Court below was in error to have convicted the Appellant for a lesser offence of robbery and conspiracy to commit robbery.

According to learned counsel for the Appellant, the entire evidence against the Appellant was hearsay as none of the victims of the robbery was called as a witness and the persons who arrested and identified him as one of the robbers were not named, and did not testify.

He contended that the evidence of the Prosecution as to how the Appellant was arrested was not only hearsay, but also contradictory as PW2, the husband of the victim, who was not at home during the robbery, gave two contrasting stories of how the Appellant was arrested and identified.

He pointed out that none of the alleged weapons purportedly seized from the Appellant when he was arrested was tendered in Court and no explanation was given as to their whereabouts, adding that the only evidence led by Prosecution regarding the purported weaponsrecovered from the Appellant, came from PW2, who identified the weapons as “short gun, iron rod, 4 black hood (mask) and a short cutlass. He maintained that this is in sharp contradiction to the evidence of PW1, who testified that the weapons recovered from the Appellant and handed to him were “one toy rubber pistol, face masks and a saw blade.”

According to learned counsel for the Appellant, there was no independent evidence outside the retracted Exhibit A2, the confessional statement of the Appellant, to prove that Exhibit A2 was true. He invited this Court’s attention to some excerpts of the judgment of the Court below and contended that having found as a fact that there was no eye witness evidence, no irresistible, cogent and unequivocal evidence to support the conviction of the Appellant for armed robbery, it amounted to a grave miscarriage of justice for the Court below to have acted on the unsubstantiated retracted confessional statement of the Appellant to convict him for robbery simpliciter. He called in aid, these cases:

Adio v. State (1986) 2 NWLR (Pt. 24) 581;

Chiokwe v. State (2013) 5 NWLR (Pt. 1347) 206.Learned Counsel insisted that there was not the slightest evidence at all outside the confessional statement to prove that it was true. Rather, that the Court below found that there were material contradictions with respect to the type of weapons purportedly used in committing the crime; that there were no eye witness evidence identifying the Appellant as one of the robbers; and that generally, there was no cogent evidence tying the Appellant to the crime. He argued that with these findings, the Court below ought to have discharged and acquitted the Appellant and that convicting him for the lesser offence of robbery was perverse and occasioned a miscarriage of justice, and this Court is urged to so hold.

On the defence of alibi raised by the Appellant, it is the view of learned counsel for the Appellant that going by the account of the Appellant in Exhibit A2, it is evident that the Appellant notified the Police at the earliest opportunity that he was at a party at Agape Street.

See also  Peter Durugo Vs The State (1992) LLJR-SC

He contended that the duty was on the Prosecution and the Police to lead evidence to show that the Appellant attended a party but had sufficient time to commit the robbery. According tohim, the Prosecution did not lead any evidence to show the time of the party, the distance of the party to the scene of the robbery and the time and place of the arrest of the Appellant. He maintained that there was no evidence on record to show that the Appellant could have attended the party, and subsequently committed the robbery, insisting that the defence of alibi could not, by any stretch of imagination, be labeled an afterthought.

He urged this Court to resolve this issue in favour of the Appellant, allow the appeal and set aside the conviction and sentence levied upon the Appellant, by the Court below.

In response to the above, it is submitted for the Respondent that a confessional statement is the best evidence of the commission of a crime. Learned counsel for the Respondent stated that though the confessional statement of the Appellant, made on the 7th of September, 2007 at the CID was admitted as Exhibit A2 without objection from the Appellant, the Appellant’s second confessional statement made to the Nigeria Police, Ipakodo Division on the 27th August, 2007 was admitted as Exhibit D1, after the objection of the Appellant’s Counsel was overruled by the trial Judge.

He opined that the contrary to the submissions of the Appellant’s counsel that there is no independent and external evidence to confirm or corroborate the confessional statements, Exhibits A2 and D1, a conviction can still be sustained on a free and voluntary confession of an accused person, notwithstanding that the accused retracted the confession. He placed reliance on the case of Monsuru Solola& Anor v. The State (2005) 2 NWLR (Pt. 937) 460.

It is the view of learned counsel for the Respondent that Exhibit A2 met the six tests for its veracity, after same was retracted by the Appellant and there was evidence before the trial Court that Exhibit A2 was sufficiently corroborated by other independent evidence. According to him, Exhibit A2 was corroborated by Exhibit D1, the Appellant’s confessional statement made at Ipakodo Police station, immediately after his arrest; Exhibit A2 was also corroborated by the evidence of PW1 (Inspector Balogun Oshibowale of Ipakodo Police Station); PW2 (Adedeji Kayode, the husband of the Complainant) and PW3 (ASP Olaniyi Soyemi) of FCID, Panti, Lagos.

He maintained that the Exhibit A2 was sufficiently corroborated and where, as in the instant case, there is no objection to the admissibility of a confessional statement, any retraction by an accused at a late date or time does not affect the voluntariness. He called in aid, the following cases:

Obisi v. Chief of Naval Staff (2004) 11 NWLR (Pt. 885) 482;

Alarape v. The State (2001) 5 NWLR (Pt. 705) 79.

On the contradictions in the evidence of the Prosecution, it is submitted for the Respondent that the alleged contradictions are not substantial enough to discredit the testimony of the witnesses. He argued that the contradiction relates to the weapons recovered and handed over to the Police, but does not affect the fact that there was robbery and that the Appellant was one of the robbers.

On the issue of the defence of alibi as argued by the Appellant, it is the opinion of learned for the Respondent that the Court below was right to affirm the decision of the trial Court that the Prosecution was able to disprove the defence of alibi, in that the time the Appellant was at the birthday party, is earlier than when the crime was committed.

He argued further that the defence of alibi was not timeously raised by the Appellant to enable the Police investigate same, adding that the Appellant did not furnish the Police with the relevant information and particulars of his alibi at the point of investigation to enable the Police investigate same.

He therefore urged this Court to resolve this issue against the Appellant, dismiss the appeal and affirm the decision of the Court below.

In reply, learned Appellant’s counsel submitted that the arguments of the Respondent’s counsel that Exhibit A2 was corroborated/was untenable. According to him, nowhere in the judgment of the Court below was it held that Exhibit A2 was corroborated by the evidence of PW1, PW2 and PW3, and in the absence of a cross-appeal or a Respondent’s notice, these submissions go to no issue. Furthermore, learned Appellant’s counsel argued that Exhibit D1, is the alleged 2nd confessional statement of the Appellant and does not qualify as credible evidence outside the confessional statement (Exhibit A2), to corroborate Exhibit A2, as the Appellant cannot corroborate himself. Secondly, Exhibit A1 is the statement of the Appellant’s co-defendant and therefore is inadmissible against the Appellant, except the co-defendant adopts the statement, which is not the case in the instant appeals. Thirdly, the evidence of PW2 does not help the case of the Respondent, as it is at best hearsay, as neither PW1, PW2 nor PW3 were eye witnesses to the crime.

Consequently, this Court was urged to discountenance the submissions of the Respondent and allow the appeal, in the interest of justice.

It is beyond contention that an appellate Court can substitute a conviction for a lesser offence for an aggravated offence, which an Appellant is charged and convicted for, by the trial Court. In restating the principle, Section 179 of the Criminal Procedure Act, Order 4 Rule 3 of the Court of Appeal Rules, 2011 and Section 15 of the Court of Appeal Act, are hereunder reproduced for ease of reference:-

Section 179 of the Criminal Procedure Act:

(1) In addition to the provisions hereinbefore specifically made, whenever a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete lesser offence in itself and such combination is proved butthe remaining particulars are not proved, he may be convicted of such lesser offence or may plead guilty thereto although he was not charged with it.

(2) When a person is charged with an offence and facts are proved which reduce it to a lesser offence, he may be convicted of the lesser offence although he was not charged with it.

Order 4 Rule 3

The Court shall have power to draw inferences of fact and to give any judgment and make any order which ought to have been given or made and to make such further or other order(s) as the case may require including any order as to costs.

Section 15 of the Court of Appeal Act

The Court of Appeal may, from time to time, make any Order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal and may direct the Court below to inquire into and certify its findings on any question which the Court of Appeal thinks fit to determine before final judgment in the appeal, and… generally shall have full jurisdiction over the whole proceedings as if the proceedings had been instituted in the Court of first instance and may rehear the case in whole or in part… ”

A combined reading of the foregoing brings out the fact that the Court below, in the exercise of its appellate jurisdiction, may invoke the powers conferred in the trial Court under Section 179 (2) of the Criminal Procedure Act. The trial Court’s power under Section 179 (2) of the Criminal Procedure Act to convict for a lesser offence that was proved in place of the aggravated offence charged is, by operation of the law, amenable to the Court below, by virtue of Order 4 Rule 3 of its Rules and Section 15 of the Court of Appeal Act and in the case of this Court, see Section 22 of the Supreme Court and Order 8 Rules 11 and 12 of the Supreme Court Rules available to both appellate Courts. Thus by virtue of Order 4 Rule 3 of the Court of Appeal Rules, 2011 and Section 15 of the Court of Appeal Act, the Court below, on the basis of the evidence on record, having found that the Appellant has committed a lesser offence to the aggravated offences he is charged with, is empowered to substitute the Appellant’s wrong conviction for the aggravated offence by the trial Court regardless of the fact that he is not charged with the lesser offence. In the same vein, this Court is empowered as well, at the end hearing the instant appeal, an appeal being a continuation of trial, to further affirm the lower Court’s decision on the subject matter of the instant appeal.

See also  S. B. D. Alumo v. The Sketch Publishing Co. Ltd (1972) LLJR-SC

Certainly, an appellate Court’s exercise of its statutory powers to substitute a conviction for a lesser offence under Section 179 (2) of the Criminal Procedure Act for conviction for an aggravated offence does not render the Court’s decision perverse.

In Odeh v. Federal Republic of Nigeria (2008) LPELR-2205 (SC), this Court stated that:

“It is the law that an appellate Court can convict and impose a sentence on an appellant for lesser offence than that for which he was convicted by the trial Court if from the circumstances of the case, the latter conviction should have been the proper one.”

Learned Appellant’s counsel has argued that the Court below has erred in the exercise of its jurisdiction under the extant adjectival statutes, that in the absence of evidence on record to sustain conviction even for the lesser offence, the perverse decision of the Court below, cannot persist. Having occasioned miscarriage of justice, this Court it is further submitted, is entitled to set the judgment aside.

Learned Respondent’s counsel submits, and correctly too, that the Record of Appeal does not support Appellant counsel’s submission. Evidence abound, learned counsel further contends, which shows beyond doubt that the Appellant, at best, had participated in the robbery simpliciter, as held by the Court below.

I am in complete agreement with learned Respondent’s counsel that it is evident from the Record of Appeal that the Prosecution has made out the lesser offence of conspiracy to commit robbery without firearms or offensive weapons and robbery without arms or offensive weapons, under Section 403(A) and 402(1) respectively, of the Criminal Code.

At the trial Court, Exhibit A2, the Appellant’s confessional statement was admitted in evidence without objection. (See page 29 of the Record.) The said Exhibit A2, at pages 16 – 19 of the Record, states inter aha:

“…l know Joseph, ‘m’ surname unknown, as a taxi driver in Okorodu Lagos, he normally assists me, whenever I want to fetch water with his car. I know Idris ‘m’ lives in the same area with me. On 26/8/2007, Joseph ‘m’ called me that there is a birthday party at Ibeshe, Ikorodu Lagos as I was coming from a production camp and I was with two toy guns which we used for acting. I then went to the party at Agape Street. When I got to the party, there was a fight there, then I went away. On getting to the bus stop Saidi ‘m’ brought one saw blade and he was looking for where to put it. I told him to put it inside my bag. As he opened my bag, he saw two toy guns and he said it would be good for what they wanted to do. Joseph ‘m’ had already finished making the masks. Four of us namely: Joseph ‘m’, Idris Sanni ‘m’, Saidi ‘m’, and myself took bike to No. 5 Adedeji St. Ibeshe Ikorodu Lagos. Joseph ‘m’ and Saidi ‘m’ masked themselves. Saidi held a locally made gun while Joseph ‘m’ held a toy gun while I held one toy gun. Idris Sanni ‘m’ did not hold anything. Joseph ‘m’ and Sanni ‘m’ went inside the compound and came out with woman bag which I do not know the content. I was standing outside with my toy gun. Idris Sanni was outside the gate when they came out. Joseph and Saidi started to run after robbing one Mrs. Omowumi Adedeji in the compound. I followed the main road, where people normally pass, thinking that people would not recognize me. The victim started shouting, two men from the neighbourhood caught me and started to beat me and handed me over to the OPC members on 27/8/2007. I was taken to Police custody with Idris Sanni. I heard that it was Joseph that bought the locally made gun. Joseph (lives) squats with a friend at Ikorodu, Lagos. The girlfriend knows the place Saidi lives with his brother (name unknown) but he is a welder at Ikorodu. I also heard that Saidi has a brother around Adedeji St. Ibeshe. The bag containing the robbed money is in possession of Joseph. Since my arrest after the operation, I have not seen Joseph and Saidi. I am ready to take the Police to the houses of Saidi and Joseph. I have only accompanied them to the operation of 26/8/2007. …It is my association with bad friends that led me to the robbery operation.”

It has been canvassed on behalf of the Appellant that Exhibit A2, did not meet the requirements of assessing confessional statements, and the reliance on it, by the trial Court, and affirmed by the Court below, was perverse, and occasioned a miscarriage of justice.

At page 295 of the Record of Appeal, the Court below made a crucial finding thus:-

“Following the said six methods of assessing confessional statements, I take the view that Exhibit A2, confessed the offences of conspiracy to commit ordinary robbery and robbery, not armed robbery, as Exhibit A2 was consistent that toy guns were carried by the robbers at the material time…”

It is instructive to note that there is no appeal against the profound finding of the Court below. It is elementary that where a finding in the judgment of the Court being reviewed has not been appealed against, the Appellant is deemed to have admitted such a finding and this Court is perfectly entitled to rely on the finding in its decision. See:

FBN v. Ozokwere (2013) LPELR 21897 (SC),

Durbar Hotel Plc v. ltyough & Ors (2016) LPELR-42560 (SC).

Now, it is trite that for the Prosecution to succeed under Section 402(2)(a) of the Criminal Code Cap C.17, Vol. 2, Laws of Lagos State 2003 under which the trial Court convicted the Appellant, it must prove that:

  1. There was a robbery or series of robberies;
  2. That the robbers were armed;
  3. That the accused person was among those who committed the robbery.

See:

Dondos v. The State (2021) LPELR-53380 SC;

Opeyemi v. The State (2019) LPELR-48764 SC.

As has been earlier indicated, Exhibit A2, was received in evidence without objection wherein the Appellant confessed to the commission of the crime. The implication is that the Court can utilize such a confessional statement alone, in convicting an accused person, even in the absence of corroboration. However, as rightly held by the Court below, the offence was not an armed robbery, as the Appellant was consistent. in Exhibit A2 that toy guns were used in the commission of the crime. They therefore do not fall within the definition of “ARMS”, which refers to any offensive weapon made or adopted for causing injury, and includes metal, cutlass, matchete, guns, knives e.t.c

In Egharevba v The State (2016) LPELR-40029 SC, this Court reiterated the above principle when it held inter alia:

“Once a confessional statement is tendered and admitted without objection by the defence, it is good evidence and can be relied upon. The Court can even utilize it alone, place a conviction without corroboration even if the Appellant had retracted the making thereof.”

The Court below, while considering the import of Exhibit A2, at pages 295 – 296 of the Record, held as follows:

“Indeed, Exhibit A2 which was admitted in evidence without objection vide page 29 of the Record, the Appellant confessed to being in the company of others with toy guns in the course of the robbery operation question. Exhibit A2 confessed to robbery simpliciter, not armed robbery. The Court below did not evaluate Exhibit A2 properly. If it had done so under the six methods highlighted by the Appellant’s learned counsel, it would not have convicted the Appellant for the aggravated offence of armed robbery. Following the six methods of assessing confessional statements, take the view that Exhibit A2 confessed to the offences of conspiracy to commit ordinary robbery, and not armed robbery, as Exhibit A2 was consistent that toy guns were carried by the robbers at the material time. As for the issue of saw blade mentioned in Exhibit A2, it is clear from what had fallen from me on the serious discrepancy between the evidence of the PW1 and the PW2 on whether it was a saw blade or cutlass that was recovered from the Appellant at the material time, that the two objects do not rhyme as to make it possible for the surrounding circumstances of the case to that the Appellant had them at the material time as to have mentioned it in his confessional statement in Exhibit A2. The retracted confessional statement Exhibit A2, being voluntary, positive and direct, sufficed for the conviction of the Appellant for the offence of conspiracy in the sense that the minds of the Appellant and the others met by their togetherness at the material time to commit robbery without arms or offensive weapons. There is therefore substance in the appeal on the conviction and sentence of the Appellant to death by hanging for the offences of conspiracy to commit armed robbery and armed robbery. I would allow the appeal and set aside or quash the said conviction and sentence, and substitute therefore, a verdict of conviction and sentence of the Appellant for the offence of conspiracy to commit robbery without firearms or offensive weapons and robbery without arms or offensive weapons, under Section 403(A)and 402(1) respectively, of the Criminal Code, read with Section 19(3) of the Court of Appeal Act 2004, as well as the case of Nwachukwu v. State supra.”

See also  Societe Bancaire (Nigeria) Limited V. Margarida Salvado Delluch (2004) LLJR-SC

I am in accord with this decision. Evidence abound from the Record of Appeal, that there was a robbery and that the accused/Appellant was among those who committed the robbery. I therefore find the concurrent findings of the two Courts below on the admissibility and reliance on Exhibit A2 to convict the Appellant to be unimpeachable.

In Mindi v. The State (2020) LPELR-52897 (SC), this Court held that:

“It is now well settled that once a confessional statement is proved to have been made voluntarily, as in the instant case, such as being direct, positive, unequivocal and very suggestive of an admission of guilt by the accused person, it is sufficient to ground a conviction where the maker resiled therefrom or retracted the same completely at the trial. It has always been the position of this Court that a confessional statement, once properly proved, is sufficient to sustain a conviction despite the retraction by the maker as it is in the instant case.”

On the defence of Alibi, it istrite that Alibi is a defence based on the physical impossibility of a defendant’s guilt by placing him in a location other than the scene of the crime at the relevant time. Where an accused person raises the defence of alibi, such defence should be investigated and must be controverted by reliable or positive evidence by the Prosecution. However, for the Prosecution to be saddled with that responsibility, the defence must be raised timeously, that is, as soon as the accused is arrested and the offence for which he is arrested is explained to him. Not only is accused required to raise the defence timeously, he must provide sufficient particulars of where he was and with whom he was in order to allow for proper investigation by the Prosecution. See Nomayo v. State (2018) LPELR 44729 SC. It follows that a Defendant who sets up the defence of alibi is enjoined to give sufficient details or particulars of his whereabouts in order to enable the Police or the Prosecution investigate it with the view to either affirm it or debunk it. The duty on the Defendant to establish his alibi lies in the fact that the burden of proving the fact peculiarlywithin his knowledge lies on him by virtue of Sections 140, 131, & 132 of the Evidence Act, 2011. Additionally, fair hearing, particularly audi alteram partem, demands of him not to take the Prosecution by surprise, hence the duty on him, within a reasonable time, to give particulars of his whereabouts. Failure of the Defendant to give particulars of alibi is fatal to the defence.

See Kolade v. The State (2017) LPELR-42362 SC.

It is also settled that when validly raised with sufficient particulars of the whereabouts of the Defendant, alibi obligates or makes it incumbent on the Prosecution to investigate it with the view of either validating it or debunking it.

Alibi, if successfully pleaded and established, is an absolute or complete defence that negatives both the acteus reus and the mens rea of the offence. It entitles the Defendant to an acquittal.

See Ezekwe v. State (2018) LPELR-44392 SC.

In the instant appeal, the Appellant stated inter alia, in his defence, at pages 46 – 47 of the record:

“On 26th August, 2007, on Sunday, I and my family had lunch after Church service and went to sleep. At about 6.00 pm, one Mr.Atilapa called me to record for him the coronation of the New Commander and I refused. I got upset and angrily dropped the call. I started preparing for a birthday party. When I got there, I started recording. There I met the 1st Defendant who is also a member of the same Church. When I was leaving, Idris decided to escort me. We learnt at Agape Bus-Stop that there was a fight between OPC men and some boys in the area. After the party, Idris went to his own side and crossed the road. Then I took a bike to go to my own side. Getting to Oremeta Bus-Stop, I was met by Mr. Atilapa. I was beaten up and the next morning, I woke up in their shrine. They took me to the celebrant of the party’s house and they confirmed it I mentioned Idris and took them to his house for his verification. They started beating Idris and they took us to Ipakodo Police Station…”

It can be seen from the above that the Appellant first raised the defence of alibi at the trial.

In its analysis of the defence of aiibi, the Court below, held, inter alia, at page 290 of the Record:

“In my view, the defence of alibi was belatedly raised by the Appellant and relived the Police of investigating it. Further, the Appellant did not give the particulars of the address of the place he claimed he was at the time the offence was allegedly committed nor did the Appellant supply the names of the person(s) he was at the material time for the purpose of verifying the alibi from such person(s)…”

I agree with the Court below that the defence was belatedly raised and relieved the Police of investigating it. The Appellant first raised the defence of alibi during his evidence in chief before the trial Court, after he had admitted the offence for which he was charged, in his extra-judicial statement before the Police. Learned counsel for the Appellant has failed to state how a miscarriage of justice was occasioned against the Appellant by the failure of the trial Court to consider a belated and unsubstantiated defence of alibi. The Court below was therefore right in not considering the defence of alibi, which in my view, was an afterthought.

See Akeem v. State (2017) LPELR-42465 SC.

From the foregoing, I hold that this appeal is devoid of merit and it is accordingly dismissed. The judgment of the Court of Appeal, sitting at theLagos Division, delivered on the 11th of April, 2014 is hereby affirmed.


SC.853/2017

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