Silas Sule Mohammed Vs The State (2014)
LAWGLOBAL HUB Lead Judgment Report
JOHN AFOLABI FABIYI, J.S.C.
This an appeal against the judgment of the Court of Appeal, Ilorin Division (the court below) delivered on 25th January, 2011. Therein, the judgment of Orilonise, J of the trial High Court of Justice, Ilorin Division, Kwara State of Nigeria, delivered on 14th December, 2006 was affirmed.
The appellant and the 2nd Accused person (Rashidi Lasisi) were arraigned at the trial court on two counts of armed robbery contrary to section 1 of Robbery and Fire Arms (Special Provisions) Act, Cap. 398 Laws of the Federation of Nigeria and culpable homicide punishable with death for causing the death of one Obioma Nwokocha contrary to section 221 of the penal Code respectively. The two counts were read and explained to the appellant and the co-accused. They both pleaded not guilty. The trial court garnered evidence and was duly addressed by learned counsel on both sides. The learned trial judge applied the law to the evidence adduced to the best of his ability and thereafter convicted both of them for the lesser offences of robbery and culpable homicide not punishable with death.
The appellant felt unhappy with the judgment of the learned trial judge and appealed to the court below which heard the appeal and dismissed same on 25th January, 2011.
It is apt to depict the facts of the matter leading to this appeal at a reasonable length as captured mainly in the respondent’s brief of argument. Between the 9th and the early hours of 10th day of October, 2003, Rockfield petrol station along Fate Road, Ilorin was burgled by robbers.
One of the two night guards in charge of the petrol station by name Obioma Nwokocha was found dead with his hands and legs tied up and injury on his head in the morning of 10th October, 2003. The whereabout of the second guard – the appellant herein, was not known at that material time.
The Managing Director of the Petrol Station – PW3 reported the incident at ‘E’ Division Police Station, Kulende, Ilorin in the morning of 10th October, 2003.
P.W.3 led Police Officers which included P.W.2 from ‘E’ Division to the scene of incident where the death of the night guard was confirmed. The search for the whereabout of the other guard was initiated. P.W.3 did not meet the 2nd guard at the ‘E’ Division police station contrary to the appellant’s defence that when they were attacked by robbers, he ran to the same ‘E’ Division police Station to make a report of the robbery incident but he was detained by the Police.
The search for the appellant continued. Kuta Guard Limited, the employer of the two night guards was contacted. The company according to P.W.1 did not know the whereabout of the appellant. It obliged the Police with his enlarged photograph for him to be identified if found.
The 2nd accused at the trial court was arrested on 20th October, 2003 sequel to a report of house breaking at the same ‘E’ Division, police Station, Kulende, Ilorin by P.W.4. The 2nd accused during interrogation confessed to be operating a syndicate. He named the appellant as a co-syndicate member with whom he jointly operated and who was away to Ajase-Ipo, Kwara State at the material time to dispose off the proceeds realized during a recent robbery operation at Rockfield Petrol Station, along Fate Road, Ilorin where a night guard was killed.
The 2nd accused volunteered a statement in respect of same. The Statement was admitted as Exhibit 4 after a trial-within-trial proceeding was conducted. The 2nd accused person led the police to Ajase-Ipo in search of the other syndicate member. At the material time, the appellant was apprehended and in custody of Ajase-Ipo Police Station for another offence. The 2nd accused identified the appellant from among other five accused persons in Police custody at Ajase-Ipo. The appellant did not deny the allegation of his involvement in the robbery incident at Rockfield petrol station. On their way back to Ilorin, the appellant and the 2nd accused were passing the buck for the unexpected death of the other night guard at Rockfield Petrol Station.
The appellant and the 2nd accused later volunteered confessional statements which were admitted as Exhibits 3 and 5 after a trial-within-trial proceedings. After their arrest, the managements of both Kuta Guards Limited and Rockfield petrol station identified the appellant as the other night guard attached to the petrol station and whose whereabout was not known after the robbery incident. At the point of their arrest, neither of them raised the defence of alibi nor denied the commission of the offence. Both the appellant and 2nd accused person put up the defence of alibi for the first time during their defence at trial.
The prosecution called four witnesses and tendered five exhibits. Each of the two accused persons testified. Their defences contradicted voluntary statements earlier made by them. The learned trial judge did not believe their evidence. In a considered judgment, the trial judge found the appellant and the 2nd accused guilty of lesser offences of robbery simpliciter contrary to section 1 (1) of robbery and Fire Arms (Special Provisions) Act and culpable homicide not punishable with death contrary to section 224 of the Penal Code. The appellant and the 2nd accused person were accordingly sentenced.
The appellant felt unhappy with the stance of the trial court and appealed to the court below. Four grounds of appeal accompanied the Notice of Appeal. The court below delivered its judgment on 25th February, 2011. The appeal of the appellant was found unmeritorious and consequently dismissed.
The appellant felt dissatisfied with the position taken by the court below and appealed to this court. His Notice of Appeal was attended by four grounds of appeal.
On 27th February, 2014 when the appeal was heard, learned counsel on both sides of the divide, each adopted and relied on briefs of argument filed by them. While the appellant’s counsel urged that the appeal be allowed, the respondent’s counsel urged that the appeal be dismissed.
On page 5 of the appellant’s brief filed on 09-08-2011, the two issues submitted on behalf of the appellant for determination read as follows:-
“(1) Whether the Court of Appeal was right to have upheld the trial court’s discountenancing of the defence of alibi put up by the appellant. (Ground 1)
(2) Whether the Court of Appeal was right in affirming the conviction and sentence of the appellant by the trial court, which conviction was based solely on the purported confessional statement of the appellant. (Grounds 2, 3 & 4).
On page 7 of the respondent’s brief of argument, the two issues decoded for due determination of the appeal read as follows:-
“(i) Whether the court below was right when it held that there was no merit in the alibi raised by the appellant and affirmed his conviction by the trial court. (Ground one)
(ii) Whether the court below was right to have affirmed the conviction of the appellant for the offences of robbery and culpable homicide not punishable with death. (Grounds 2, 3 & 4)
Arguing issue 1 which relates to defence of alibi, learned counsel observed that the purport of the defences is that the accused was elsewhere at the time of the alleged offence. Reliance was placed on the decision in Ozaki & Anr. v. The State (1990) 1 NWLR (Pt. 124) 92.
Learned counsel maintained that the appellant raised the defence of alibi in his evidence which the court below discountenanced on the basis that the appellant had made a confessional statement. Learned counsel submitted that the failure of the respondent to lead evidence in rebuttal of the evidence adduced by the appellant as well as the failure of the courts below to properly evaluate the defence of alibi put up by the appellant amount to a violation of his right to fair hearing. The cases of Bekwealor v. Obasi (1990) 2 NWLR (Pt. 131) 231 at 260; Olufosoye v. Olorunfemi (1989) 1 NWLR (Pt. 95) 26; Onifade v. Olayiwole (1990) 7 NWLR (Pt. 161) 130.
Learned counsel further submitted that the effect of a failure by a court to consider a particular defence put forward in a matter is that there has been a failure of justice and the consequence of same is that such judgment ought to be set aside for its violation of the right to a fair hearing.
The case of Oguneye v. The State (1999) 5 NWLR (Pt. 604) 548 at 570 was cited. Learned counsel maintained that the failure of the prosecution to provide rebuttal evidence to the appellant’s plea of alibi was rather damming to the case of the prosecution. It was stressed that when the defence of alibi is put up, as herein, failure on the part of the prosecution to investigate it may cast some doubt on the probability of the case of the prosecution. The cases of Fatoyinbo v. A.G Western Nigeria (1966) WNLR 4 at 6; and Oyewunmi Adedeji v. The State (1971) All NLR 77 were cited. As well, it was stressed that the burden is on the prosecution to disprove the defence of alibi; citing the cases of Njovens v. The State (1973) 1 NNLR 76; Segun Balogun v. A.G Ogun State (2002) 6 NWLR (Pt. 763) 512 at 536.
Learned counsel, on this issue, urged that the decision of the court below should be set aside for failure to dispassionately consider the defence of alibi and the evidence adduced by the appellant in support thereof before dismissing the appellant’s appeal.
On behalf of the respondent, learned counsel maintained that the court below was right to have discountenanced the defence of alibi raised for the first time in court by the appellant; and on that score, among other reasons, affirmed the appellant’s conviction.
Learned counsel submitted that the defence of alibi is of no assistance to the appellant, having not been raised timeously and in the face of overwhelming evidence showing the contrary to his defence of a plea of alibi. Learned counsel further asserted that the defence must be raised timeously at the earliest opportunity so as to enable the police investigate same. The case of Balogun v. A.G Ogun State (2002) 6 NWLR (Pt. 763) 512 at 536 was cited.
It was stressed that as the appellant put up his defence of alibi in court, there was no information about the appellant’s plea of alibi to be investigated by the police. It was submitted that where there is evidence fixing the accused at the scene of crime, as herein, the defence of alibi is automatically destroyed. Reliance was placed on the decisions in Onuchukwu v. The State (1998) 4 SCNJ 36; Sowemimo v. The State (2004) 11 NWLR (pt. 385) 515, Ukwunenyi v. The State (1989) 4 NWLR (Pt.114) 131 at 155- 156.
Learned counsel submitted that with respect to the statement of the appellant, the court can convict him solely on his confessional statement in so far as same was given freely and voluntarily by the appellant; relying on the decisions in Saidu v. The State (1982) 4 SC 41 and Nwangbomu v. The State (1994) 2 NWLR (Pt. 327) 380 at 397.
Learned counsel urged the court to hold that there is no substance in the alibi raised out of time by the appellant.
He maintained that there were overwhelming pieces of evidence which fixed the appellant at the scene of crime and his active participation in the commission of the offences charged. He maintained that as a matter of fact, the appellant initiated the commission of the crime by inviting the 2nd accused to the petrol Filling Station where he was a night guard.
The appellant placed utmost reliance on his plea of alibi which literally means elsewhere. It is a defence where an accused alleges that at the time when the offence with which he is charged was committed, he was elsewhere. See: Ozaki & Anr. v. The State (1990) 1 NWLR (Pt. 124) 92 at 109.
It is the duty of the accused to furnish particulars of the plea of alibi put up by him. He must furnish his whereabout and those present with him at the material time of the incident. It is then left for the prosecution to disprove same. Failure to investigate may lead to acquittal.
See: Yanor v. The State (1965) NMLR 337, Queen v. Turner (1957) WRNLR 34; Bello v. Police (1956) SCNLR 113; Gachi v. The State (1973) 1 NMLR 331; Odu & Anr. v. The State (2001) 5 SCNJ 115 at 120; (2001) 10 NWLR (Pt. 772) 668.
It is basic that for the defence of alibi to be sustained, it must be raised timeously at the earliest opportunity; preferably at the interrogation by the police. The onus is always on the accused person to provide the police with information as to where he was when the crime was committed; with whom he was and what he was doing thereat. It is only when the above information is supplied by the accused that the burden shifts on the prosecution to investigate the alibi put up. See: Balogun v. A.G. Ogun State (supra) at 536.
In this matter, the appellant did not put up his defence of alibi until he got to the court. There was no information about his plea of alibi to be investigated by the police.
Even then, in his evidence before the court, the appellant said he ran to ‘E’ Division, Kulende police Station to report the attack by robbers on Rockfield petrol Station early on 10-10-2003 and was there detained by the police. P.W.3 the owner of the Petrol Station said when he went there in the morning of 10-10-2003 he did not meet the appellant thereat. It is unthinkable that the same police Station would go about searching for him even to Ajase-Ipo if he was being held by them. In the same vein, the appellant’s employer (Kuta Guards) did not know his whereabout and even assisted in his search by giving the prosecution an enlarged photograph of the appellant. Appellant’s voluntary statement – Exhibit 3 and the evidence of the 2nd accused fixed him at the locus criminis. In short, there is a stronger and more cogent evidence which nullified the plea of alibi put up by the appellant. Same automatically collapsed. See: Patrick Njovens v. The State (supra) at 76; Onuchukwu v. The State (supra), Sowemimo v. The State (supra) and Ukwunenyi v. The State (supra) at page 155.
It must be made clear that the court below did not discountenance the appellant’s plea of alibi based only on the confessional statement alone but also on other identified credible evidence; as well. The appellant’s statement was found to be voluntary after a trial-within-trial was conducted and there is no appeal against the ruling of the trial court on the voluntariness of the confessional statement. It is trite that a court can convict an accused person solely on his confessional statement in so far as same was given freely and voluntarily and without any shred of equivocation. Where it is well proved, as herein, it will be treated as the best evidence. See: Nwangbomu v. The State (supra) at page 397.
The court below in affirming the trial court’s decision had no difficulty in finding that the plea of alibi of the appellant was totally devoid of any substance. I totally agree with same. I hereby resolve issue I against the appellant and in favour of the respondent without any hesitation.
Arguing issue 2, learned counsel submitted that the prosecution has the burden to prove the offences charged beyond reasonable doubt. Learned counsel referred to section 138 (1) of the Evidence Act, Cap. E14, Laws of the Federation of Nigeria, 2004 and cited the case of Woolmington v. DPP (1935) A.C. 462 and a host of other relevant decided authorities.
Learned counsel maintained that the guilt of the appellant was not proved beyond reasonable doubt. It was stressed that there is no clear evidence on record relied upon by the courts below apart from the confessional statement of the appellant – Exhibit 3 which was seriously contested.
Learned counsel stressed that the court below was wrong to have affirmed the conviction and sentence of the appellant by the trial court which conviction was based solely on the confessional statement of the appellant.
On behalf of the respondent, it was submitted by learned counsel that the court below was right to have affirmed the conviction of the appellant. He stressed that the conviction was affirmed not only based on Exhibit 3, appellant’s confessional statement, but also on other circumstantial evidence that are cogent, compelling and convincing as well. He submitted that evidence was led at the trial which established the ingredients of the offence of robbery that took place at Rockfield Petrol Station, Fate Road, Ilorin against the appellant who was proved to have participated in the crime actively. He referred to the evidence adduced by P.W.1, P.W.2, P.W.3 and that of the appellant as well.
Learned counsel urged the court to disregard minor contradictions pinpointed by the appellant’s counsel. He maintained that contradictions that do not go to the substance of the case, as herein, will not affect the case of the prosecution. He cited Agbo v. The State (2006) All FWLR (Pt. 309) 1380 at 1393.
It should be stressed at this point that contradiction in the evidence of the prosecution that will be fatal must be substantial. Minor contradiction which did not affect the credibility of witnesses may not be fatal. Contradiction must relate to the substance. It must touch on an element of the offence(s) charged. Trivial and miniature contradiction should not vitiate a trial. See: Ankwa v. The State (1969) 1 All NLR 133; Queen v. Iyanda (1960) SCNLR 595; Omisade v. Queen (1964) 1 All NLR 233; Sele v. The State (1993) 1 SCNJ 15 at 22-23, (1993) 1 NWLR (Pt. 269) 276.
It should be stated in clear terms that there is no substance in the alleged discrepancy in the time the appellant resumed duty on 9th October, 2003 which the appellant stated was around 20.50 hours and which P.W.3 stated as being around 7.00pm. The substance of the matter is that the appellant reported for duty that day and was actually seen at the filling station before the crime was committed. The surmised discrepancy or contradiction has nothing to do with any element of the two offences charged. In any event, the use of such words like ‘about’ and ‘around’ express some sort of uncertainty, in respect of time. It is not a serous point to capitalize upon. See: Akpa v. The State (2008) 7 MJSC 77 at 90; Awopejo v. The State (2000) 6 NWLR (Pt. 659) 1 at 13; Vee pee Ind. Ltd. v. Cocoa Ind. Ltd. (2008) 7 MJSC 125 at 140 and Rex v. Eronim 14 WACA 366; all cited by respondent’s counsel to the point.
Let me now move to the point that should be made with clarity. With respect to the offence of robbery, the evidence of P.W.1, P.W.2, P.W.3 and even that of the appellant confirmed that the mini mart of Rockfield petrol station Fate Road, Ilorin was burgled by robbers in the early hours of 10th October, 2003. There was evidence that the locks of some doors at the petrol station were broken, offices ransacked and valuable items carted away. These facts conclusively proved that indeed, robbery incident took place. The prosecution demonstrated the involvement of the appellant and his cohort in the commission of the crime.
The arrest of the appellant was facilitated by the 2nd accused. Same negate the defence of alibi put up by the appellant. P.W.2, whose evidence was believed by the trial court and affirmed by the court below, stated how the appellant was apprehended at Ajase-Ipo Police Station and how the appellant and his co-hort shifted blames for, and regretted the death of the other guard-Obioma Nwokocha during the robbery incident. The appellant’s confessional statement – Exhibit 3 confirms same with great detail and precision. No doubt, ingredients of the offence of robbery were clearly established.
With respect to the offence of culpable homicide, the death of Obioma Nwokocha, the late guard, is not in doubt.
P.W.1, P.W.2 and P.W.3 confirmed same in their evidence.
It is glaring that the appellant, in his statement, admitted killing the deceased guard after tying his hands and legs and struck him with iron rod on the head. He was found dead in his pool of blood early on 10-10-2003 by the stated witnesses. It was proved that the deceased died and that the appellant and his co-hort perpetrated the killing. No doubt, they intended the natural consequence of their act. See: Ahmed v. The State (1999) 7 NWLR (Pt.612) 641.
As demonstrated above, the conviction of the appellant by the trial court and its affirmation by the court below were not based solely on the cautioned statement of the appellant. It had valid support by clearly established solid circumstantial evidence. The appellant failed to wriggle out of same in his bid to exculpate himself. The trial court was over generous in reducing the offences charged to lesser ones of robbery simpliciter and culpable homicide not punishable with death.
The two courts below made concurrent findings of fact on all crucial issues canvassed in this appeal. They have not been shown to be perverse or against the current of plausible evidence on record. I shall not interfere with same. It is not in the character of this court to so do. See: Shorumo v. The State (2010) 12 SC (Pt. 1) 73 at 96, 102; (2010) 19 NWLR (Pt. 1226) 73; Igwe v. The State (1982) 9 SC 174; Victor v. The State (2013) 12 NWLR (Pt. 1369) 465 at 485.
No doubt, the prosecution proved all the essential ingredients of the offences charged beyond reasonable doubt as postulated by Lord Sankey, L. C. in Woolmington v. DPP (supra) 462. All the essential ingredients of the two offences charged were clearly established. It was idle to have argued to the contrary. See: Alabi v. The State (1993) 7 NWLR (Pt. 307) 511 at 523; Abogede v. The State (1996) 5 NWLR (Pt. 448) 270 at 276. I resolve issue 2 against the appellant, as well.
On the whole, I find that the appeal is devoid of merit.
It is hereby dismissed. The appellant should thank his star for the reduced sentence imposed by the learned trial judge and affirmed by the court below in the prevailing circumstance of this heinous matter. I hereby keep my peace.
MAHMUD MOHAMMED, J.S.C.: On 10th October, 2003, there was an armed robbery operation carried out at the premises of the Rock Field Petrol Station in Ilorin Kwara State. The armed robbery operation led to the killing of the Security Guard of the Petrol Station one Obioma Nwokocha. The evidence on record shows that the Appellant in this appeal also participated in the armed robbery operation. The Appellant’s confessional statement recorded by the Police in the course of their investigation which was evidence as Exhibit 4, clearly admitted the participation of the Appellant in the act of the armed robbery and causing the death of the deceased Obioma Nwokocha.
The feeble defence of alibi which the Appellant attempted to raise failed because the evidence on record including his own confessional statement squarely pinned down the Appellant at the scene of the crime.
I have been priviledged before today of reading the judgment of my learned brother Fabiyi JSC which has just been delivered. I agree entirely with the reasoning and the conclusion that the appeal lacks merit and ought therefore be dismissed. On the evidence on record, the Appellant must count himself very lucky for having escaped with the conviction for armed robbery and culpable homicide not punishable with death for which the Court below affirmed the sentences of 21 years imprisonment for the offence of armed robbery and 14 years imprisonment for the offence of culpable homicide not punishable with death. Accordingly, I also dismiss the appeal and further affirm the conviction and sentence passed on the Appellant by the trial High Court and affirmed by the Court of Appeal.
SC.142/2011