The State V. Ayimi Shaibu Odomo (2018)
LAWGLOBAL HUB Lead Judgment Report
MARY UKAEGO PETER-ODILI, J.S.C.
This appeal is against the judgment of the Court of Appeal, Abuja Division, Coram: Abubakar Datti Yayaya, Tinuade Akomolafe Wilson and Moore A. A. Adumien JJCA delivered on the 9th day of May, 2013 wherein the conviction and sentence of the respondent by the trial Court were upturned. The appellant being dissatisfied filed this appeal on the 7th day of June, 2013 upon four grounds amended notice of appeal.
The respondent (Defendant at the trial Court) was arraigned before the Kogi State High Court, along with two other persons, on a two-count charge of Conspiracy and Culpable Homicide punishable with death, contrary to Section 97 (1) and 221 (a) of the Penal Code Law of Kogi State. The appellant (Prosecution at the trial Court) called 4 witnesses, while the respondent testified in person and also called two witnesses.
The case of the appellant was that on the 20th of January, 2009, the respondent, along with 5 (five) other persons drove in a golf car belonging to the respondent to Achangana Junction, Adogo in Ajaokuta Local Government Area of Kogi
State, and started shooting sporadically in the air. The PW1 and PW2, deceased’s father and uncle respectively, were present at the junction at the relevant time and witnessed the shooting by the respondent and his group, and in the course of which one Isah Jimoh (aka 2-2) who came along with the respondent, shot and killed the deceased Jimoh Adabara and immediately ran away. The PW1 subsequently took the corpse of the deceased to the Police Station and made a report.
The case of the respondent on the other hand is that he was the Youth President in Ajaokuta at the relevant time of the incident. On 20th January, 2009, he saw a group of people fighting along the road and extorting money from passers-by and went to report the acts to the Chief of the village. On the instruction of the Chief, he reported the matter to the Police who went to disperse the group. In the evening of the same day, he received information that there was another outbreak of fight in Adogo and he went to the Area Commander to make a report. The Area Commander assigned Mobile Policemen to him and he went with them to the Police Station in Adogo.
He was still at the Police Station when information came that somebody had been killed in the fight.
On the 11th day of October, 2018 date of hearing, learned counsel for the appellant, Fredricks E. Itula Esq., adopted the appellant’s brief of argument filed on the 19th May, 2017 and deemed filed on 15/11/17. In it were raised two issues for determination as follows: –
- Whether it was right for the Lower Court to have set aside the judgment/decision of the trial Court having found that there was no reason to upturn the findings while the trial Court, rejected the defence of Alibi set- up,. (Distilled from Ground 1 of the Notice of Appeal).
- Whether in view of the eye witness account given by PW1 and PW2, the Court below was wrong to have held that there were discrepancies in the evidence. (Distilled from Ground 2 of the Notice of Appeal).
Respondent being absent and not represented, the brief of argument settled by Yusuf Asamah Kadiri Esq., was taken as adopted.
The brief was filed on 29/9/2017 and deemed filed on 15/11/17 and in it were identified two issues for determination which are, viz:-
i) Whether the Lower Court was right to have upheld the defence of
alibi raised by the respondent. (Ground 1 of the Notice of Appeal).
ii) Whether the Lower Court was right to have resolved the material contradiction in the case of the prosecution in favour of the respondent. (Ground 2 of the Notice of Appeal).
I shall make use of the first issue raised by the appellant as sole issue being concise and good-enough is adequate in the resolution of the appeal.
Whether it was right for the Lower Court to have set aside the judgment/decision of the trial Court having found that there was no reason to upturn the findings while the trial Court rejected the defence of Alibi set up.
Learned counsel for the appellant, Fredricks Itula Esq., contended that there was nothing upon which the Court below based the upturning of the trial Court’s decision. That there was no evidence in defence of the alibi raised by the accused/respondent. He cited Obakpolor v The State (1991) 1 SC (Pt.1) 35; Adedeji v The State (1971) 1 All NLR 75; Adio v The State (1986) 3 NWLR 714; (1986) 2 NSCC 815; Onafowokan v The State (1987) 7 SC; Adekunle v State (1989) 3 NWLR (Pt. 123) 505 at 513.
That it is trite that where sufficient evidence has been adduced fixing the accused within the scene of crime as was done in this case dislodged the plea of alibi. He cited Ahmed v State (2002) FWLR (Pt 90) 1358 at 1386; Ali v State (2015) All FWLR (Pt. 795) 559 at 586; Omotola v State (2009) All. FWLR (Pt. 464) 1490; Nkebisi v State (2010) All FWLR (Pt. 521) 1407 at 1421 – 1422 etc.
Learned counsel for the appellant submitted that there is nowhere in the records where material contradictions could be seen and also that the eye-witness account was credible. He cited Sele v The State (1993) 1 SCNJ 15 at 22-23; Effia v The State (1999) 6 SCNJ 92 at 98; Akinlolu v State (2015) LPELR 635/2013; Bature v State (1994) 1 NWLR (Pt. 320) 267; Emoga v The State (1997) 7 SCNJ 518 etc.
Learned counsel for the respondent, Mr. Kadiri stated that the onus of proof of the guilt of an accused person rests squarely on the prosecution and does not shift. In this, that the prosecution failed to discharge that burden of proof beyond reasonable doubt. He cited Section 135 of the Evidence Act 2011, Onafowokan v State (1987) LPELR-2666 (SC); Adebesin v State (2014) LPELR-22694 (SC);
Osuagwu v State (2016) LPELR-40836(SC); Adava v State (2006) 9 NWLR (Pt. 984) 152 at 167 etc.
That the respondent raised the defence of alibi timeously and PW4 confirmed that it was so raised at the earliest opportunity with particulars and so the failure of the Police to investigate it and check the reliability raised reasonable doubt in the mind of the Court which led to the questioning of the conviction imposed by the trial High Court. He relied on Ozaki v State (1990) 1 NWLR (Pt. 124) 92 at 109.
For the respondent, it was further submitted that there were material contradictions in the case of the prosecution producing doubt which should be resolved in favour of the accused/respondent. He cited State v Azeez (2008) All FWLR (Pt. 424) 1423 at 1463; Edet Asuquo Bassey v State (2012) LPELR-7813 (SC); Sani v State (2015) LPELR-24818(SC); Chukwu v State (1996) 7 NWLR (Pt. 463) 686 etc.
The thrust of this appeal and the arguments in advancement thereof is that the lower Court ought not to have upturned the judgment of the trial Court convicting the respondent as the trial Court did a proper evaluation of the evidence before reaching its conclusion.<br< p=””
The respondent pushed forward a contrary position stating that defence of alibi raised early in time by the respondent with the particulars was not investigated by the Police produced a serious doubt to the prosecutors case and alongside the material contradictions in the case of the prosecution, that burden placed on the prosecution cannot be said to have been discharged in the light of the doubt that was not dispelled.
In the light of these two, differently contending positions on either side one is reminded of the provisions of Section 135 of the Evidence Act, 2011 which is as follows: –
135 (1) “If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.”
This onus of proof rests on the prosecution, is static and does not shift. See Onafowokan v State (1987) LPELR-2666 (SC).
As a follow up is the reiteration that the standard of proof in criminal cases such as the one under discourse is proof beyond reasonable doubt and does not admit of proof beyond shadow of all doubts. See Adebesin v State (2014) LPELR- 22694 (SC) per Ogunbiyi JSC.
To be clear, it needs be said that there is no evidential duty upon an accused to purge himself of guilt in all stages of the criminal trial except in a few limited circumstances which are absent in the case at hand such as the accused raising the defence of insanity. See Osuagwu v State (2016) LPELR – 40836 (SC).
In addition to what is stated above is to be restated that to secure a conviction in a case of the nature as in this instance of a death penalty, the prosecution’s case must fail where there is the slightest possibility of a doubt cropping up in the case set up by the prosecution as it is necessary to establish that the accused and no one else committed the crime. The gravity of the situation is well stated by this Court in the case of Adava v State (2006) 9 NWLR (Pt. 984) 152 at 167 per Kutigi JSC (as he then was), thus:-
“It is settled that for a charge of culpable homicide punishable with death to succeed, the prosecution is required to prove the following ingredients of the offence.
(a) That the death of a human being has actually taken place;
(b) That such death has been caused by the accused;
(c) That the act was done with the intention of causing death; or that the accused knew that death would be the probable consequence of his act.
I need not say that the above ingredients of the offence must all be proved together and that failure to prove anyone of them means failure of the charge itself.”
The principles of law above stated placed in con with the testimonies of the prosecution witnesses would make clear the position of things, thus:-
PW1 – Examination-in-Chief (page 114 of the Record)
“On the 20th January, 2009, I was at the Achagana Junction resting. I know the limo Adabara, my son. He died of gunshot at Achagana junction. The accused persons in the dock are the ones that killed my son. These are the people that killed my son; they are the ones standing in the dock.
The 1st accused person is the leader of the group. They were many that came. When they discovered that they killed somebody the (Sic) now ran away.”
Also PW1 stated on thus: –
“When they discovered that they killed my son, they ran away. Then I came and carried my son to the Police, Adogo. DPO sent one of his officers with me to
the Okene General Hospital to test my son.” See page 115 of the Record.
“I knew the 3 accused people before they killed my son and they too know me. There was no problem between me and these 3 accused people before they killed my son. I do not know if the 3 accused had a problem with any of my relations before the incidence. My son was not a member of any youth organization. He does Okada in Ajaokuta and returns home. In view of these, I do not know what is in their heart for killing my son. My late son’s name is jimo Adabara. After killing my son, I do not know whether the Police checked them for recovery of weapon.”
“Ayimi Shaibu, 1st accused is the leader. 2nd accused shot the gun while the 3rd accused is the driver. They are always staying together every evening, and came with his group to kill my son. They are the ones that came and killed my son.”
PW2-Examination in Chief (page 121 of the Records)
“It was on the same date 20th January, 2009. I was sitting down at the junction there, I saw the following vehicle golf AP 181 LKJ belonging to Ayimi Shaibu, the 1st accused, Samuel Bello, the third accused person was the driver of the car.
I saw about 6 people in the vehicle as at that time. When they came at the junction there they started shooting gun. When they started shooting the gun one Adabara Jimoh was killed. The 2nd accused person was the one who shot the gun and killed my brother. His name is Isah Jimoh or Jimoh Isa alias 22 (two-two). After the incidence everybody ran away and my brother, Adabara Nathaniel (PW1) reported at the Police Station at Adogo and I accompanied him there.”
PW3 (Investigative Police Officer (IPO) from State CID Lokoja)- Examination in Chief (Page 129 of the Records)
“When a case of criminal conspiracy and culpable homicide file was transferred to State CID for investigation, the file was accompanied with the photograph of the deceased without the negative and a gulf car. I can identify the photograph.”
“I then visited the scene of crime at Adogo, nothing was recovered at the scene.”
Cross-examination page 131 of Records
“I investigated this case very well. The actual spot is in a park at Adogo. I do not know the name of the area. I do not need the name of the DPO because I am not working under him.
1st accused in his statement said that he was with the DPO Adogo. I did not extend investigation to the D.P.O Exh A, Al was taken.”
“I do not know the deceased before his death. Because I did not know the deceased when he was alive. I would not know the person in that photograph. The photograph is that of the deceased, Jimoh Adabara. Yes, they told me that the photograph is that of the deceased.”
Page 132 of the Records
“The complaint said that there was confusion at the time of this incident. The complainant did not tell me the exact place the incident occurred. The complainant also told me that because they were all armed with guns, they did not know the exact person that actually short (sic) the deceased. (Underlining mine)
PW4 (Investigative Police Officer (IPO) at Adogo Police Station) – Examination in Chief (page 134 of the Records)
“I know the 1st accused as a youth President and his name is Ayimi Shuaibu. I know the other accused persons from Adogo… on the 20th January, 2009 at about 17:30hrs (5:30pm), one Adabara Nathaniel came to the Police Station together with the corpse of Jibo (sic) Adabara, a male from Achagana ward in Adogo.
He reported that one Jimoh Adabara was shot dead by Jimoh Isah, 2nd accused, Okoniku alias 22, 3rd accused (and Ojomo Ayimi (1st accussed). I took the statement of the complainants. I went with 2 others to the scene of crime. On getting there no exhibits was recovered…”
Cross examination- page 135-136 of the Records
“I am the first person that investigated this matter. Upon the arrest of the accused people (1st, 2nd and 3rd) they informed me that they were not at the scene of the accident. They further informed me that they were with the D.P.O Adogo at the time of this incident. The then DPO’s name is Fadipe Suleman. I am aware that the then DPO informed the relevant authorities that the accused persons were with him reporting about the crisis in Adogo at the time of this incident. I was at the station at the time of the incident. I did not find any of the accused persons when I went to the scene of crime.”
“the 1st accused used to visit us at the Police Station as a Youth Leader. I saw the accused at the time the DPO said the accused were with him reporting the crisis at the Police Station. The accused were with Mobile Police Men. I do not
know if the C.ID. Lokoja extended their investigation to Adogo after the case was transferred to them. It cannot be possible for them to be in DPO’s office at the same time.”
The evidence of PW4 during cross-examination is instructive and it is thus: –
“I am the first person that investigated this matter. Upon the arrest of the accused person (1st, 2nd and 3rd) they informed me that they were not at the scene of the accident. They further informed me that they were with the D.P.O Adogo at the time of this incident. I am aware that the DPO informed the relevant authorities that the accused persons were with him reporting about the crisis in Adogo at the time of this incident.”
It is trite to say that when a defendant puts across the defence of alibi the duty on him is that it was raised at the earliest opportunity with the necessary particulars that would enable the police investigate it either to debunk or support the said defence. This principle is in line with the natural course of events, in life in that no human being can be in two places at the same time. Therefore, what really is the meaning of alibi and the
simple answer is “elsewhere”, hence the exculpatory nature of the defence. See Balogun v A.G. Ogun State (2002) 6 NWLR (Pt. 763) 512; Mohammed v State (2015) LPELR-24397 (SC).
Taking the defence of alibi as raised by the appellant alongside the particulars which in effect was that the other accused were with the DPO Adogo at the time of the incident which the DPO confirmed and nothing was done at the prosecution’s side to rebut that assertion which even the PW4 attested to in evidence. There is therefore no running away from the fact that the prosecutions failure had left room for a reasonable doubt which cannot be wished away. See Ozaki v State (1990) 1 NWLR (Pt. 124)92 at 109.
It follows that the trial Court going ahead to convict in the light of the circumstances of the failure to investigate and debunk the alibi so properly raised, placed that decision unsustainable at the lower Court’s appellate stage. See Almu v The State (2009) 4 SCNJ 159.
In their own words, learned justices of the Court below stated as follows:-
“Nevertheless, it is of utmost importance to note that the DPO (DW1) was not a prosecution witness, but that
of the defence. The effect is that the prosecution has still not dislodged the alibi of the appellant as one cannot close eyes to the evidence of PW3 and PW4 who has (sic) stated that the appellant was in the DPO’s (DW1) office at the time of the commission of the offence at the junction. Their evidence is independent of DW1’s evidence and therefore cannot collapse along with DW1’s evidence…” (Underlining supplied)
In respect to the resolution of the material contradictions in the case of the prosecution in favour of the respondent by the lower Court, it has to be reiterated that the law does not insist that there cannot be contradictions in the evidence of witnesses called by the same on any issue in contention but the contradictions should not be material in such a way that they cast serious doubt on the case presented as a whole by that party for if that happens the reliability of such witnesses is in jeopardy and the prosecution cannot claim to have discharged the burden of proof beyond reasonable doubt. The doubt is thus resolved in favour of the defendant/respondent. See Nwokoro v Onuma (1999) LPELR- 2126 (SC); Enahoro v The Queen (1965) NMLR
265; State v Azeez (2008) ALL FWLR (Pt. 424) 1423 at 1463; Edet Asuquo Bassey v The State (2012) LPELR-7813 (SC); Sani v State (2015) LPELR – 24818 (SC); Chukwu v State (1996) 7 NWLR (Pt. 463) 686; Musa Ikaria v The State (2012) LPELR-15533 (SC).
Indeed the records bore out the decision of the Court of Appeal seeing the PW3, an investigating Police Officer admitting that 1st accused had stated being with DPO Adogo but that he did not cross-check that assertion. In the same vein, PW4 confirmed that appellant had said, he and other accused were with the said DPO Adogo at the material time and this was not debunked, it becomes difficult to understand how a conviction can be based with this uninvestigated alibi and clearly the evidence of PW3 and PW4 are in direct conflict with the other parts of the prosecution’s witnesses and the conflict is weighty and cannot be waved off as unimportant or not material as the Court cannot pick and chose what to utilize or drop. The doubt that arose thereby must be settled in the respondent’s favour and the learned trial judge having failed to so decide, the Court of Appeal rightly set the position correctly.
In this, I align with the case of Amadi v State (1993) 8 NWLR (Pt. 314) 644 at 660; Ikemson v The State (1989) 3 NWLR (Pt. 110) 455 at 466; Boy Muka v The State (1976) 9-10 SC 305.
The summary of what is on ground as borne out from the record is that the testimony of PW1 and PW2 on the one hand contradicts that of PW3 on the other hand as to who actually shot the deceased. While PW1 and PW2 testified that it was 2nd accused that shot the deceased, PW3 testified under cross-examination that PW1 and PW2 had informed him that the situation at the time of the commission of the crime was confused and they did not know who actually shot the deceased. It is clear to me from the foregoing that the Court of Appeal was right in taking the stand that the material contradictions should be resolved in favour of the respondent as it was not the place of the defendant/respondent to prove his innocence. See Adepetu v The State (1998) 7 SCNJ 83.
In conclusion therefore, I see no way in taking a stand different from that established by the Court below as the prosecution failed to prove the guilt of the respondent beyond reasonable doubt and since the trial Court had erred in its
findings and conclusion, the Court below did that which was called for and that being upturning what the Court of first instance did.
In the final analysis, this appeal lacks merit and I do not hesitate in dismissing it as I affirm the decision of the Court of Appeal which set aside the judgment, conviction and sentence of the trial High Court.