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The State Vs Fatai Azeez & Ors (2008) LLJR-SC

The State Vs Fatai Azeez & Ors (2008)

LAWGLOBAL HUB Lead Judgment Report

T. MUHAMMAD, J.S.C. 

At the Kwara State High Court of Justice (trial court), holden at Ilorin, 3 different charges were with the leave of the trial court, preferred against each of the 6 respondents herein, as accused persons. The 6 accused persons were tried jointly. Hereinbelow are the charges:

“Charge No. 1:

That you (1) Fatai Azeez Adesoye(2) Ganiyu Lasisi

(3) Kareem Shittu

(4) Rasheed Adesoye

(5) Issa Kalam Adesoye

(6) Noah Adepoju on or about the 1st day of April, 2003, at Lamodi Land along Adeleke Area of Offa in Offa Local Government Area of Kwara agreed to do an illegal act to wit shot dead one Raufu Balogun with locally made pistol and severely injuring Mukaila Abdulsalam Balogun and Rasheed Salam Balogun with gun shots and same act was done in pursuance of an agreement and you thereby committed an offence punishable under Section 97(1) of the Penal Code.Charge 2:

That you (1) Fatai Azeez Adesoye

(2) Ganiyu Lasisi

(3) Kareem Shittu

(4) Rasheed Adesoye

(5) Issa Kalam Adesoye

(6) Noah Adepoju on or about the 1st day of April, 2003, at Lamodi Land along Adeleke Area of Offa in Offa Local Government Area of Kwara State did cause grevious (sic) to the persons of Mukaila Abdulsalam Balogun and Rasheed Salam Balogun by shooting a locally made pistol at them and thereby committed an offence punishable under Section 248(1) of the Penal Code.

Charge 3:

That you (1) Fatai Azeez Adesoye

(2) Ganiyu Lasisi

(3) Kareem Shittu

(4) Rasheed Adesoye

(5) Issa Kalam Adesoye and Noah Adepoju on or about the 1st day of April, 2003, at Lamodi Land along Adeleke Area of Offa in Offa Local Government Area of Kwara State did commit culpable homicide punishable with death in that you caused the death of one Raufu Balogun by shooting the deceased with a locally made gun with the intention of causing his death and you thereby committed an offence punishable under Section 221 of the Penal Code.”

Each of the accused persons pleaded not guilty on each of the charges.

Hearing commenced on the 9th day of February, 2004. The prosecution called a total of 8 witnesses. Each of the accused persons testified in his own behalf and 9 witnesses in all testified for the defence.

At the close of evidence the two learned counsel on both sides addressed the trial court. The learned Attorney-General by consent of the counsel for the accused persons, filed and adopted a written address on oral address.

After evaluation of evidence placed before him viz-a-viz the prevailing law, the learned trial Judge, found all the 3 charges proved beyond reasonable doubt against each of the accused guilty as charged and convicted each of the accused as charged. He finally sentenced each of the convicts to death by hanging on the 1st and the 3rd charges. On the 2nd charge, the learned trial Judge sentenced each of the convicts to 2 years imprisonment with hard labour.

Dissatisfied with the trial court’s judgment, each of the condemned prisoners filed a separate Notice of Appeal to the Court of Appeal, lIorin (court below) challenging the convictions and sentences passed on them by the trial court. The court below, per Abdullahi, JCA., stated, inter alia:-

“This appeal is pregnant with some merits. The decision of the learned trial Judge convicting the appellants as charged cannot stand and it is hereby set aside. The conviction and sentence imposed by the lower court are hereby quashed. The appellants are discharged and acquitted on all the counts.”

The State, as respondent at the court below, now appellant before this court, felt aggrieved with the decision of the court below and filed its appeal to this court. The Notice of Appeal contained six grounds of appeal (pp. 296 – 304 of the printed record of appeal). Leave was granted by this court to the respondents to raise and argue a new point of law.

Briefs were settled by the parties in compliance with Order 6 Rule 5(1 )(a) & (2) & (3) of the Supreme Court Rules, (as amended in 1999). Learned counsel for the appellant, J. A. Mumini, Esq., (DPP, Kwara State Ministry of Justice) formulated the following issues:-

“3.02. Issue 1 (Relates to Ground 1)

Whether the Court of Appeal was right to have held that the non-calling of two independent witnesses by the prosecution, created doubt on the case of the prosecution sufficient to discharge and acquit the respondents on the three count charge against them.

3.03 Issue 2 (Relate to Ground 2)

Whether having regard to the evidence led by the prosecution, the Court of Appeal was right to have held that the prosecution has failed to prove its case beyond reasonable doubt.

3.04 Issue 3 (Relates to Ground 3)

Whether the Court of Appeal was right to have refused and or neglected to give considerations to the issues formulated by the parties before in this case.

3.05 Issue 4 (Relate to Grounds 4, 5 and 6)

Whether the Court of Appeal was right to have refused and or neglected to adequately consider and properly examine the defence of alibi raised by all the respondents herein by contaminating same or mixing up same with the issue of non-calling of two witnesses.”

Learned counsel for the respondents, R. A. Lawal Rabana, Esq., submitted 3 issues for determination. They are as follows:-

“1. Whether the lower court was wrong to have held that the defence of alibi exonerated the respondents (Grounds 2, 4, 5 and 6 of the Notice of Appeal)

  1. Whether the prosecution’s case was devoid of reasonable doubt. (Grounds 1, 2, 5 and 6 of the Notice of Appeal)
  2. Whether in the circumstances of this case, the lower court was bound to review all the issues submitted for consideration. (Ground 3 of the Notice of Appeal).”

Permit me my Lords, before I come to consider the issues for determination, to render a concise story of the facts giving rise to this case. It all started as a result of land dispute. It all happened in the process of cutting of trees on the land in dispute. Some twelve people and others said, fifteen, emerged from the bush; some of them armed with locally made guns, came shooting. In the process one Rafiu Balogun died while others were injured. Eye witness accounts of P.W.s.2, 3 and 4 were given in addition to the evidence of P.W.s. 5, 6 and 8. The defence of alibi was put up by each of the accused persons. The trial court rejected that defence. The trial court having found the prosecution to have proved its case beyond reasonable doubt sentenced the respondents accordingly as charged.

Let me now proceed to consider the issues and arguments made out by each of the parties to this appeal.

Issue No. 4 formulated by the appellant (issue No. 1 by the respondents) is on the defence of alibi raised by the respondents at the trial court. It is pivotal in this case. It is pertinent that I should consider it first. alibi, originates from latin. It stems from a combination of two words: “alius” and “ibi” or “ubi” meaning: “other” and “There” or “where”, respectively. Put together under English usage, it means “elsewhere”. See: Alani v. State (1993) 7 NWLR (Pt.303) 112 at 124, Gachi v. State (1965) 1 NMLR 333 at 335, State v. Ozaki (1986) 5 NWLR (Pt.40) 258 at 269, Adekunle v. State (1986) 5 NWLR (Pt. 123) 505 at 513.

Alibi means that the accused person was somewhere other than where the prosecution alleges he was at the time of the commission of the offence making it impossible for him to have committed or participated in the commission of the offence with which he was charged. See: Bozin v. The State (1985) 7 S.C. 450 at 472, Okosi & Anor. v. State (1989) 2 S.C. (Pt. I) 126; (1989) 1 NWLR (Pt.100) 642 at 666, Onuoha & Ors v. The State (1989) 2 S.C. (Pt. II) 115; (1989) 2 NWLR (Pt. 101) 23 at 37, Peter v. The State (1994) 5 NWLR (Pt.342) 45 at 71. Furthermore, it is a defence by which an accused person alleges that at the time when the offence with which he was charged was committed he was elsewhere. See: Chia & Ors v. The State (1996) 6 NWLR (Pt.455) 465 at 480, Okosi & Anor v. State (1989) 2 S.C. (Pt. I) 126; (1989) 1 NWLR (Pt.100) 642 at 666.Where an accused person has put up a defence of alibi, what the law requires him to do is to introduce evidence of alibi. The onus is on him to prove where he was at the time of the incident and he has to call evidence to support his defence of alibi. Once the defence of alibi is raised it is for the prosecution to investigate it properly as failure to do so could raise reasonable doubt in the mind of the court and will lead to quashing the conviction. See: Adele v. State (1995) 2 NWLR (Pt.377) 269, Onuchukwu v. State (1998) 4 S.C. 49; (1998) 4 NWLR (Pt.547) 576, Odili v. State (1977) 4 S.C 1; (1977) 4 S.C. (Reprint) 1;, Onafowokan v. State (1987) 3 NWLR (Pt.61) 538.2

It is the finding of the trial court that the accuses’ evidence on their defence of alibi is self contradicting and there were contradictions as to the times given in their evidence and that of their various witnesses. It held that the defence of alibi raised by the accused crumbled and had failed. After summing up the principles of law on alibi and the evidence of the parties on same, the court below on the other hand, held that the defence of alibi exonerated the respondents.

For clarity sake, I crave my Lords indulgence to recast the evidence made available before the trial court. It is important to note from the outset that each of the respondents raised the defence of alibi at the earliest opportunity available to him and that was when each was arrested and requested to make a statement to the police. The commission of the crime was said to have been done on the 1st of April, 2003, between the hours of 7.00 am to 7.30 am. Each of the respondents put up his defence of alibi as follows:-

(a) 1st respondent

In his statement to the police on his arrest which was admitted in evidence as Exhibit P1 the 1st respondent stated inter alia, as follows:-

“on 1/4/2003, at about 0700hrs. while I was still sleeping that I saw my friend, Mustapha a.k.a. Boys city that woke me up and we were together till 0740hrs. when my wife called that I should come and convey the children to school and as I was going my friend, Mustapha also left and from the school I went to Atanoba area to collect house rent from a Polytechnic lecturer, I met him with the landlord son named Sarafa Babalola. I left the place at about 0830hrs. for my house I then picked my Bank cheque book and told my second wife by name Wosilat that I wanted to go to Ibolo Community Bank Offa. As I was on my way I met Rashidat and Yemi both of Offa Polytechnic and I picked and dropped them at Owode Junction. As they were entering their school, I continue my journey to the Bank, at Ibolo Community Bank I met I.D. who tole me to come back by 2.00pm for the money I wanted to withdraw. From the Bank I went to my brother’s house by name Ganiyu Lasisi near Queen’s Inn Hotel at Taiwo road Offa. It was there that one Isah Kalam came and informed us that there was serious fight at the site and as we were there discussing that we saw ALGON vehicle and the Inspector Crime and Messeko said the DPO Offa wanted to see us and we followed him it was at the station that the police said I have killed person and I said no I did not kill any person as alleged against me by the complainant. The complainant were suspecting me and the others just because of the land dispute between the Asalofa and Balogun families.”

This is what the 1st respondent repeated when he testified on his own behalf (pages 68 – 70 of the Record of Appeal). D.W.s.1 & 2 testified in favour of the 1st respondent and confirmed what he said on his alibi.

P.W.7 who was a police investigator stated in respect of the 1st respondent as follows:-

“I can remember an officer of Ibolo Community Bank made statement to us in the course of our investigation in respect of the 1st accused. The Manager confirmed he saw 1st accused that morning but cannot say precisely the time.”

The 2nd respondent stated that he was in his house together with two younger brothers of his whose names he had given to the police. He said 1st respondent came from Ibolo Community Bank and joined them in the house.

The 3rd respondent told the police that on that day, i.e. 1/4/2003, he was at Ganiyu Lasisi (2nd respondent’s) house.

The 4th respondent stated in his statement and evidence that he went to his friends house for a naming ceremony. He gave that friend’s name to the Police.

The 5th and 6th respondents also gave their own version of their alibi.

The result of the investigation conducted by the police on the alibi put up by the respondents shows in the main, that the alibi was well founded. P.W.7 for instance, stated:-

“I went to all the places where they said they were to establish their alibi . . . I remember that the 3rd accused said one Rabiu Bricklayer came to wake him up that day. The accused mentioned many people in his statement and I interviewed those that were available. All the people the (he) (sic) mentioned we went in (a but) to their houses and interviewed them, some orally and some written. Those that are in writing are filed at the back of the case diary…..The people we interviewed confirmed to us that they saw the accused at the time the accused told us they were with those people.”

See also  Adetutu Adesanya V. Alhaji S. D. Aderonmu & Ors. (2000) LLJR-SC

P.W.8, Sgt. with the State CID, Homicide Section, llorin, stated on the alibi as follows:-

‘The accused made alibi statement and myself and the team led the accused to the scene of the crime we investigated the alibi and found them to be untrue and since the complainants say these are the people who did the act, we have no choice than to charge them to court.”

Answering questions put to him at cross-examination, P.W.8 stated:-

“1st accused statement he told me he was in the Bank . . . He told me one Mustapha was with him till about 7.40am. We went to Mustapha’s house but did not meet him, we met his brother a Polytechnic student. He said he thereafter went to a Polytechnic lecturer to collect rent and we went to his house. We did not meet him too, we met his brother. I can’t remember what we did about Sarafa Babalola that he mentioned. We went to the Bank but our team leader with the 1st accused went in, I didn’t know what they discussed inside with Bank Manager and the team leader did not tell me. I cannot say whether the alibi was true or false. It is our team leader who can say that.

On the 4th accused, we went to where he said she (he) attended a naming ceremony, the woman who gave birth could not talk to us, she was just crying but the husband said the 4th accused was there at the naming ceremony but we did not believe him.

On the statement of the 6th accused. I confirmed that 6th accused works with NEPA at Offa. We did not see the Osamene he said he visited when he closed at 6.00am on his way home. We went there but did not meet the man. My team leader went with him to Mrs. Adeowoye that he mentioned, so I don’t know what their finding is.

On 2nd accused statement he said she (he) was at home throughout, we went to his house and his family members said he was in till the time the police came to arrest him.”

That has been the position of the investigation. P.W.7 confirmed the veracity of the alibi raised. P.W.8 said they found the alibi to be untrue. That in itself is contradictory. It is strong enough to create doubt in the mind of the learned trial Judge. That apart, on the balance of probability, which is the standard required in defence of alibi, it is clear that sufficient, credible evidence was led by the accused persons to establish their claim on alibi. It is a surprise as to what factors dissuaded the learned trial Judge so much so that he found the defence of alibi not sustainable. In any event, this is a criminal trial. The burden of proof of the crime alleged against the respondents, i.e. proof beyond reasonable doubt never shifts. It remains on the prosecution until satisfactorily discharged. I have no cause to doubt or disturb the finding of the lower court on the defence of alibi raised by the respondents.I uphold it.

Now, assuming that I am wrong in my consideration of the defence of alibi raised by the respondents which favoured them and by that token, the court below, ought to, as well, be wrong having reached the same conclusion on the defence of alibi, then has the prosecution discharged the burden placed on it by the law

Issue 1 is on non-calling of two independent witnesses by the prosecution. The submission of learned counsel for the appellant is that it was wrong of the learned Justice(s) of the Court of Appeal to hold that failure of the prosecution to call two witnesses was enough to create a doubt on the mind of the learned trial Judge and that he ought to have discharged and acquitted the respondents. The case of Manship Namsoh v. The State (1993) 5 NWLR (Pt.128) 132, relied on by the court below was grossly inapposite. Learned counsel stated the law that the prosecution is

not bound to call any and every witness who were present at the locus criminis. It is only to call witness who would give relevant evidence in proof of its case. He cited the case of Iziren v. The State (1995) 9 NWLR (Pt.420) 385 at page 390.

The submission of learned counsel for the respondents is that there was no independent evidence adduced by the prosecution to prove this case. It is obvious from the statements made by P.W.2, P.W.3 and P.W.4 to the Police and their evidence in court that apart from P.W.s 2, 3 and 4, who were members of the deceased’s family, there was the presence of a machine operator and a photographer at the scene of the crime. None of these two, who could be regarded as independent eye-witnesses, was called to testify and there is no evidence on record as to why they were not so called by the prosecution. Learned counsel submitted further that P.W.3 in his statement to the Police and evidence in court stated that it was workers at Olayani Block Industry that helped him get a taxi that took him to the General Hospital. P.W.7 an investigating Police Officer gave evidence to the effect that he went to the block Industry near the scene but cannot remember taking any statement from the people there. All the above, argued learned counsel for the respondents, show that the prosecution had kept away vital witnesses whose evidence would have been unfavourable to the prosecution. He cited in support, the cases of Opeyemi v. The State (1985) 2 NWLR (Pt.5) 101, Ahmed v. The State (1998) 7 S.C. (Pt. I) 96; (1998) 7 SCNJ 60.

The general law pertaining to calling of witnesses to testify in favour of a party in a criminal trial, especially the prosecution, is that it is not the requirement of the law that the prosecution must call all conceivable witnesses. The duty on the prosecution as placed by Section 138(1) of the Evidence Act, (Cap 112, LFN, 1990), is to call witnesses to establish their case beyond reasonable doubt. See: Oluwatoba v. The State (1985) 1 NSCC 306, Adamu v. State (1991) 6 S.C. 17; (1991) 4 NWLR (Pt.187) 530, Amuneke v. State (1992) 6 NWLR (Pt.217) 338. However, in the discharge of that burden, it is the duty of the prosecution to see that it places before the trial court all available relevant evidence. This may not mean that a whole host of witnesses must be called upon the same point, but it does mean that if there is a vital point in issue and there is one witness whose evidence would settle it one way or the other, that witness ought to be called. See: R. v. Kuree (1941) 7 WACA 175. In fact in the case of In R. v. Harris (1927) 2 KB 587, Lord Hewart, CJ., had observed that the prosecution was bound to call “all the material witnesses before the court, even though they give inconsistent account.” See further: Okonkwo v. Police (1953) 20 NLR 165

At the court below, there is a finding on the failure of the prosecution to call some independent witnesses. Below is what that court said:-

“Learned counsel for the appellants submitted that the prosecution should have called independent witnesses who from the evidence of the prosecution witnesses were supposed to be at the scene of the incident, namely the machine operator and the photographer. I cannot agree more with the learned counsel on this point. Though prosecution is not bound to call a particular witness to establish its case, in view of the enmity between the two families as I stated elsewhere in this judgment, the photographer and the machine operator had become material witnesses and failure to call them ought to have created doubt in the mind of the learned trial Judge as to the guilt of the appellants. I am also of the view that the failure to call the two witnesses has contaminated the entire case of the prosecutions in respect of the other appellants.”

But, the trial court on the other hand, after correctly stating the general principles of the law pertaining to calling of several or multiple witnesses to establish a particular point in issue, concluded in the following words:-

“So in my view without calling the machine operator, Yinusa Alabi and the photographer, there is sufficient credible evidence that fixed these accused person(s) at the scene of crime at the material time.”

Of what significance would the evidence of the machine operator (Yinusa Alabi) and the photographer, be, had they been called to testify To answer this question without mincing words, the record of appeal is the best guide. It is from the record that I see where the evidence of P.W.2 gives us an insight of how and where the machine operator featured. P.W.2 stated as follows:-

“On 31/3/03, I was in my shop and I saw a boy with a Policeman he said he was asking for Rafiu Balogun and Mukaila Balogun the deceased. I asked him what was the matter and he said they came to seize the machine they were using to cut down tress (sic) at Lamudi. I told him this is a matter they can settle amicably instead of getting the Police involved. When they did not see the two people they were looking for I volunteered to help them look for their seized machine. When we saw it I gave it to the Policeman. They were about to leave when Rufai (deceased) came and he followed them to the Police Station.

After a while, Rafiu came back and said the Police have settled the matter for them. That he was asked to release the seized machine to them and they were also told not to go and cut the trees again and they promised not to go there again.

On 1/4/03, I have just finished saying my morning prayer and decided to go to where its alleged (sic) that they cut some trees because my own farm is also there. I called Mukaila Balogun to carry me to the place on his motor cycle. When we got there we met them again cutting the trees with that machine. We asked why they were cutting the tree after the Police had told them not to cut them again. The machine operator then said it was the boy we met with him that came to him early in this morning that the problem has been resolved and they can now cut the trees. We stopped him and told him to carry his machine and follow us to our compound. When we got home we invited a photographer so that we can go and take the photograph of the trees he had fallen down. I called on Murtala Balogun and he also came along on his motorcycle. We were about to go when Raufu Balogun the (deceased) came to open his shop. He asked what was the matter and I told him that the people went back to the farm to cut our trees again and that we were going to the scene to take the photograph. He decided to follow us and joined somebody on his motorcycle. On getting to the farm. We told the machine operator to stay by the fallen trees so as to take his photograph.

Suddenly people came from the bush and these accused also came out of the bush with shot (sic) guns. They were about 12 people that came out from the bush but those I can identify who I had known before are Ganiyu Lasisi, Kareem Shittu, Fatai Azeez, Rasheed Adesoye, Noah Adepoju and Issa Adesoye.”

On being cross-examined by the learned counsel for the respondents, P.W.2 said, among other things:

“The photographer and machine operator were at the scene. I don’t know the name of the machine operator. I was one of the people that invited the photographer to the scene but I don’t know his name. I don’t know the name of the person who employed the service of the machine operator but it is likely to be the woman these accused sold the land to. I don’t know whether the machine operator and the photographer made statement to the police because I was not there …….. it was the machine operator and the photographer who first fled. They had run away before I did.”

Answering questions put to him by learned counsel for the respondents on the machine operator and the photographer, P.W.3 stated:-

“The photographer and the machine operator were with us on the day of the incident. I don’t know whether they were short (sic) I heard no such report that they were shot. The Police did not ask me anything about the photographer.”

Further, another witness, P.W.7 in answer to cross-examination put to him by learned counsel for the respondents said the following in connection to the machine operator:-

“In the course of my investigation I discovered there is a machine operator employed to cut trees it is true he was arrested and his statement was obtained. I cannot remember whether the machine operator said he did not witness any gun shot the statement of machine operator is supposed to be in the file. I cannot remember recording the statement of the machine operator, because I don’t speak Yoruba language.”

P.W.8, told the trial court in cross-examination on the machine operator, the following:-

“l remember a machine operator but I was not the one who recorded his statement. I cannot say what he said in his statement since I did not record his statement. It is true I had access to the case diary but I cannot go on and start reading the content. The team leader was always in possession of the case file.”

The team leader mentioned in the excerpt above from P.W. 8, refers to P.W.6, Inspector Thomas Meseko, who surprisingly, throughout his evidence did not mention the machine operator. He also did not mention anything on the photographer mentioned variously by all the witnesses as stated in the excerpts above.

See also  J.O. Ayinde & Ors. V. Samuel A. Adigun (1993) LLJR-SC

Now, page 21 of the record of appeal contains a statement credited to the machine (Engine) Operator, Mr. Yinusa Alabi. He volunteered a statement to an officer of the State CID, Ilorin (province). This is what Mr. Alabi said (in part):-

“I am a native of Ilorin. I did not go to school. It is engine operation that I have been doing at Igbosun village via Offa. On 31/3/2003, at about 0700hrs. one madam whom I did not know her name hired me to go and cut some trees at Adeleke road with one of her son and as we were cutting those trees, we saw some people who identified themselves as Balogun Family and they dragged us to Offa Police Station and they settle the matter for us at the Police Station and we all departed. Even my machine/engine that was seized was returned back to me at the Police Station.

On 1/4/2003, I went to the madam to collect my balance she then told me to go and cut the remaining one cashew tree that remained on that land. And as I cut down the tree around 07.20hrs . and as raised my eye up I saw the Balogun Family member who said I should stop work cutting. They then said the boy that accompanied me should go and call his mother as the boy left they said I should follow them with my machine to their father by name Alhaji Deja and the Baba said they should take me back and snapped me with the machine on the said land and after, they have snapped me Alhaji Deja said I should go on my own way and that was how I left the place to our house and not quite long that our Magaji sent for me that my junior brother by name Safiu is being beaten and when I reached there they left my brother and I was arrested. I then asked them why they were arresting me and they told me that didnt I heard what happened where I just worked that morning or didn’t I heard (sic) the sound of gun and I told them that I did not heard anything and they said I should take them to madam’s house but we could not see the madam but she later sent her son to the Police Station and there I was detained I did not know what happen at the site because I have left the place. This is all I have to say.”

It appears there was no statement recorded from the photographer. In any event, even the statement of the machine operator, as reproduced above, was never tendered in evidence as the machine operator was not called to testify. I entirely agree with the court below in its decision and the learned counsel for the respondents in his submission that in a capital offence such as the one for which the respondents were sentenced to death by hanging, the prosecution should have called independent witnesses who, from the evidence of the prosecution witnesses (as summarised above) were said to be at the scene of the incident, namely the machine operator and the photographer who played key roles in the matter. It is surprising how the prosecution sidelined independent witnesses who had a lot of say on the whole saga. Although the prosecution is not bound to call a particular witness in order to discharge the burden of proof placed on him by the law before securing conviction, yet the law is very emphatic that where there exists a vital point in issue and there are witnesses whose evidence would settle that issue one way or the other, these witnesses ought to be called.

This court stated the law, per Adio, JSC., (of blessed memory), in the case of State v. Nnolim (1994) 5 NWLR (Pt. 345) 394 at 406 C-D, that:

“A vital witness is a witness whose evidence may determine a case one way or another. Failure to call a vital witness by the prosecution is fatal to the prosecution’s case.”

See further: Omogodo v. The State (1981) 5 S.C. 5;(1981) 5 S.C. (Reprint) 4; Onah v. The State (1985) 3 NWLR (Pt.12) 236.

For whatever reason the machine operator (whose statement was already had on record) and the photographer, were not called to testify in this case, that failure, in my view is fatal to the prosecution’s case. The machine operator and the photographer were said to be present at the scene of the crime. They saw, they heard and they had the experience of whatever transpired there. They would have told a better, objective and unprejudiced account of what actually transpired at locus criminis. No one who comes across the facts of this case would imagine the two vital eye witnesses to be dropped from the prosecutions witnesses. Their evidence would have been more independent and objective.

Secondly, it is the finding of the learned trial Judge that the evidence of the P.W.s 1 – 6 with the exhibits is credible enough and nothing contradicted the evidence so the trial court had no choice but to believe same. But the court below on the other hand, held the view since it was the evidence of P.W.1- P.W.4 and that of the witnesses called by the appellants and having regard to the enmity between the two families, the trial Judge should have been more wary in accepting the evidence of one side against the other especially where independent witnesses abound but they were not called by the prosecution for reasons very difficult to comprehend.

The practice of evaluating evidence led by parties who are before a court of law and who were of same family but separated by scuffle, animosity and protracted dispute, has to be approached with caution, circumspection and care. It is worthy of note that from the evidence of P.W.s 2 – 4, it is clear that they are all members of the same family and they are the only people who claimed that they saw the accused persons commit the alleged crime that day. There is no independent witness from their side. But on the side of the respondents and from the depositions of their witnesses, all of the witnesses who testified before the trial court except D.W.3, Mufutau Azeez, none of them was a relation to anyone of them. They were all independent witnesses who told the trial court what they knew on the day in question, in 1/4/2003. Other reasons as advanced by learned counsel for the respondents which were accepted by the lower court on why the learned trial Judge ought to be wary and cautious in accepting the prosecutions’ witnesses evidence hook – line and sinker were that:

i. P.W.s 2, 3 and 4 were relations of the deceased who were bound to be interested parties.

ii. P.Ws.2, 3 and 4’s family which is the deceased family had been engaged in a protracted land disputes with the respondents’ family which must have created ill-feelings.

iii. P.W.s 1 and 2 were not related to the respondent but fixed the presence of the respondents at different places between the time the offence was allegedly committed.

These are indeed vital factors which require the utmost caution of a trial Judge before he weighs the evidence of the parties on his proverbial scale of justice. Several decisions of this court are in support of that practice. See: Idahosa v. The Queen (1965) NMLR 85.

This settles issue No. 1.

On issue 2, the learned DPP for the appellant submitted that having regard to the evidence led by the prosecution the Court of Appeal was wrong to have held that the prosecution has failed to prove its case beyond reasonable doubt. The essential legal elements of the offence charged were established by the prosecution before the trial court. Learned counsel argued that the death of one Raufu Balogun was established via evidence of prosecution witnesses which ran through pages 35-37 of the record. The acts of the respondents which caused the death of the deceased were properly established and the roles played by each of the respondents were clearly stated by the prosecution witnesses and the trial court was not in doubt as to the role played by each of the respondents. The learned DPP further argued that where an accused is fixed at the scene of the crime by credible witnesses, the trial court was right to have refused the plea of alibi. He cited and relied on the case of Adele v. The State (1995) 2 NWLR (Pt.277) 269 at 272, Onuoha v. The State (1989) 2 S.C. (Pt. II) 115; (1989) 5 NWLR (Pt.548) 135. Learned DPP urged upon us that it was wrong of the lower court to go into the issue of reassessment of witnesses and credibility of same as that remained within the privilege of the trial court. He cited and relied on Adele v. The State (supra).

In his submissions, learned counsel for the respondents stated that the case of the prosecution is borne out in the evidence of P.W.s 2-4. P.W.2, he said, in his statement at page 6 and evidence at pages 35 – 40 of the record showed clearly that he did not know who shot him or shot the deceased out of the people that came to attack them as he had run away for his life. P.W. 3 said he identified 3rd accused who shot him on the leg and 2nd accused person who shot the deceased on the hand and head. Learned counsel argued that there was no direct evidence made out against the 1st, 3rd, 4th, 5th and 6th accused persons. Further, from the evidence of all the accused persons both in their statements to the police and testimony in court, they all denied the allegation, the onus was therefore on the prosecution to link the accused persons to the death of the deceased. The prosecution had failed to do so and the learned trial Judge was in error to have convicted all the accused persons in the absence of any credible evidence against them.

The six respondents were convicted and sentenced to death by hanging under the provision of Section 221 of the Penal Code.

For the conviction and sentence of the trial court to stand, the law requires the prosecution to prove beyond reasonable doubt that:-

1) The death of a human being has actually taken place.

2) Such death has been caused by the accused person or persons.

3) The act was done with the intention of causing death, or that it was done with the intention of causing such bodily injury as:-

a) The accused knew or had reason to know that death would be the probable and not only the likely consequence of his act; or

b) The accused knew or had reason to know that death would be the probable and not only the likely consequence of any bodily injury which the act was intended to cause.

See: Omini v. State (1999) 9 S.C. 1; (1999) 12 NWLR (Pt.630), Ogba v. The State (1992) 2 NWLR (Pt.222) 164, Nwaeze v. The State (1996) 2 NWLR (Pt.428) 11, Gira v. The State (1996) 4 NWLR (Pt.443) 375. The evidence led before a trial court by the prosecution may be direct or circumstantial. Whether the evidence is direct or circumstantial, it must establish the quilt of the accused beyond reasonable doubt. The onus is always on the prosecution, as a general rule and it never shifts. See: Woolmington v. DPP (1935) A.C 462. The obligation on the prosecution is to prove the whole crime, including the negative of defences which are in issue, such as alibi, raised in the present case. Accordingly, an accused who pleads not guilty, as did all the accused/respondents in this case, casts upon the prosecution the burden of proving the facts in issue and if, when the totality of the evidence has been heard and considered, the court is not satisfied beyond reasonable doubt, it must acquit. And, a reasonable doubt may be created in the mind of the trial Judge either by the evidence given by the defence or by the prosecution. Woolmington v. DPP (supra). All it means is that the prosecution must adduce such evidence, which, if believed, and if left uncontradicted and unexplained, it could be accepted by the trial court as proof. Thus, proof beyond reasonable doubt does not mean proof to a scientific certainty.5 Back to top

In the instant appeal the prosecution relied heavily on the evidence of P.W.s 2, 3 and 4. Their evidence was said to be direct as eye witnesses. Rasheed Abudlsalam Balogun was P.W. 2. His evidence is contained on pages 35 – 40 of the record of appeal. This is what he said, among other things:

“On getting to the farm, we told the machine operator to stay by the fallen trees so as to take his photograph.

Suddenly people came from the bush and these accused also came out of the bush with shot (sic) guns. They were about 12 people that came out from the bush but those I can identify who I had known before are Ganiyu Lasisi, Kareem Shittu, Fatai Azeez, Rasheed Adesoye, Noah Adepoju and Issa Adesoye. We were commanded to raise our hands up. We were surrounded and threatened to shoot us if we refuse to hands up. Raufu Balogun (deceased) raised his hands up. I challenged them that why should we raise our hands up and I just heard the sound of the gun the bullet hit my hand, if I was not raising my hand it would have hit my head. Smoke had taken over the place and I managed to run away. As I was running away I was on the thigh (sic) and as I was running away I kept on hearing the sound of gun shot at the scene and I heard the shout of Raufu Balogun who was killed. I managed to escape and got to the town. Somebody helped to take me to the hospital. I also made a formal report and gave the names of those I can identify among the people who attacked us.”

In answer to questions put to him at cross-examination by learned counsel for the respondents, P.W.2 stated:-

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“It is true I said I heard the sound of gunshot while I was running away and the shout of Raufu Balogun but I cannot say what happened to Mukaila also since I was already running away. I know these accused before this day of incidence. There is a protracted land dispute between my family and accused family. I cannot say whether people do hunt around the area. I saw all these accused that day. I did not fabricate lies against them . . . I don’t know whether the Police recover (sic) guns from them.”

P.W. 3 was Mukaila Balogun. He stated in his evidence as follows:-

“Myself and Rasheed and Raufu Balogun (deceased) who went to bring a photographer with Muritala Balogun went back to the farm with the photographer. We instructed the operator to put the machine on the tress and hold it while the photographer will snap him in that position. That is how some people suddenly emerged from the surrounding bush, there were about 15 of them. I looked up and saw Ganiyu Lasisi (2nd accused); Fatai Adesoye (1st accused); Karimu Shittu (3rd accused); Rasheed Adesoye (4th accused); Noah (6th accused); Issa Kalam Adesoye (5th accused). He (Karimu Shittu) then shot me on my leg. It was Ganiyu Lasisi (2nd accused) who shot the deceased with the gun in his hand. He shot him on the head and Raufu Balogun was wrinkling on the ground, the shoes fell from my leg. Karimu Shittu was speaking to Ganiyu Lasisi that I was too stubborn and, Ganiyu targeted my chest that day with the same gun with which he shot the deceased. The shot missed my chest and hit my left hand along my left side… The Police came to me at the General Hospital and asked what happened and who are the people that did this. I did not know whether I was going to survive or die, so I immediately mentioned names of the perpetrators I mean these accused persons.”

P.W.4 was Muritala Balogun. He stated:-

“on 1/4/2003, I was about operating my shop close to 7.00am when Mukaila Balogun came to say Rasheed said I should come, I followed them I mean (Rasheed, Raufu and Mukaila with the photographer) to the farm. On getting there we just heard “hands up” they have surrounded, Rasheed, Mukaila and Raufu Balogun. The people who surrounded them are Fatai Adesoye, Ganiyu Lasisi, Noah Isiakalam Adesoye, Rasheed Adesoye and Shittu. I know him as K. Shitta. I was behind them. I saw Fatai Adesoye with a gun, as I was asking (sic) them why they were carrying guns when they are not Policemen I heard them shot Raufu Balogun on the head and I took to my heels and ran away. I cannot say precisely who among Raufu Balogun (sic). I ran to the Police Station and reported… They (Police) asked me who are the people that attacked us and I mentioned all these accused. Some Policemen were detailed to accompanied (sic) me to go and arrest them. We met 4 of the accused at Ganiyu Lasisi’s house. They are Fatai Adesoye, Isiakalam Adesoye, K. Shittu and Ganiyu Lasisi himself. The Police arrested the 4 of them.”

On cross-examination, P.W. 4 said:-

“I remember I mentioned one Lekeleke to the Police as one of the people that I saw at the scene. He is not here now. The Police did not conduct a search in the house where the 4 of them were arrested. I may not know whether the Police later conducted a search in their houses. There was no gun found on them when they were arrested. The accused are from the same family and live within same compound but not in the same house. It is true we have a land dispute in the court with accused family but we have never resulted to physical combat if we see each other we will greet.”

I find it pertinent my Lords, to reproduce the above depositions because of the following observations:

(a) the conviction of the 1st, 3rd, 4th and 6th respondents was based by the trial court on common intention to carry out an unlawful act. The learned trial Judge held among others:

“As to the certainty of who shot him, it is immaterial who among the accused shot him, since the accused have common intention the act of one of them amount (sic) to the act of the rest accused common intention need not be proved ………..in this case even if the 2nd accused who shot the deceased, he is no more than the hand by which the other accused persons struck and in that case all must be liable for the murder of the deceased.”

Section 80 of the Penal Code provides:

“Whenever an act, which is criminal only by reason of its being done with a criminal knowledge or intention, is done by several persons, each of such persons who joins in the act with such knowledge or intention is liable for the act in the same manner as if the act were done by him alone with that knowledge or intention.”

See also Section 81 of the same Code.

The fundamental question always asked in an allegation of a joint act is the intention of each of the accused persons. Where there is a joint criminal act, an accused has nothing to rebut until the prosecution has established criminal intention or knowledge on the part of each and every accused person. The measure of liability is the extent of intention or knowledge of each accused. If several persons join in an act each having a different intention or knowledge, each is liable according to his own intention or knowledge and not further. From the record of appeal, there is no evidence to establish that the accused persons had common intention to kill the deceased. Apart from the evidence of P.W. 3, no other witness said that he saw 2nd accused shoot the deceased. In such an allegation of a group or massive attack of a concerted nature, there is need for the prosecution to establish common intention. See the cases of Alarape v. The State (2001) 2 S.C. 114; (2001) 2 SCNJ 162, Ahmed v. The State (1998) 7 S.C. (Pt. I) 96; (1998) 7 SCNJ 560. It was therefore wrong of the learned trial Judge to have lumped all the accused persons, especially the 1st, 3rd-6th respondents, against whom there was no direct evidence of shooting the deceased. It is the duty of the learned trial Judge to properly evaluate the evidence against each of the accused persons separately to enable him arrive at proper conclusion. My learned brother, Oguntade, JCA., (as he then was), made a very sound proposition of the law in the case of Emeka v. State (1998) 7 NWLR (Pt.559) 556 at p. 584 B-D. He stated as follows:-

“where there are more than one accused person, the court should consider the evidence against each of the accused persons separately following this procedure:

a. Firstly, the court must identify the nature and quantum of evidence against each of the accused persons.

b. Secondly, it must determine whether such evidence having regards to its source was legally receivable against each of the accused persons.

c. Thirdly, it must determine whether or not the evidence receivable are credible;

d. Fourthly, it must determine whether the evidence was sufficient and of character that can be relied upon to justify the pronouncement of a guilty verdict on the accused persons.”

I am in full agreement with my learned brother, in his views shown above and I adopt them.

Further, all the accused persons denied the charges. None of them made a confessional statement or any statement implicating the other. The onus of leading direct and positive evidence to show that all the accused had common intention squarely rested on the shoulders of the prosecution. There was need to lead evidence showing that the remaining five respondents knew that the 2nd accused was carrying a gun. There was therefore no evidence of common intention and the conviction of at least the 1st, 3rd – 6th respondents cannot be sustained. See: Akinkumi v. The State (1987) 3 SCNJ 30, Onuegbe v. Queen (1957) SCNLR 130.

(b) The 2nd respondent, according to P.W. 3, was the one who shot the deceased in his statement to the Police. He thereby placed the onus on the prosecution to prove his guilt beyond reasonable doubt. From the totality of the evidence placed before the learned trial Judge, there was the evidence of P.W.3 who said he saw 2nd accused shoot the deceased on one hand. On the other hand, P.W.s 2 and 4 presented evidence that was materially in conflict with that of P.W.3 in that they said they did not know who shot the deceased. This must cast doubt in the mind of the learned trial Judge on the prosecution’s case. The law is well settled that where there is doubt in a criminal trial, such doubt is resolved in favour of the accused person. This court, per Wali, JSC., held in the case of Chukwu v. The State (1996) 7 NWLR (Pt.463) 686 at 701 G-H, as follows:-

“Where prosecution’s evidence is found to be contradictory on a material issue, the court should give the benefit of that doubt to an accused person that stems from the non-credibility of such evidence and discharge and acquit him.”

See further: Adebayo v. Igbodale (1996) 5 NWLR (Pt. 450) 567 at 616, Ibeh v. State (1997) 1 NWLR (Pt.484) 632 at 650, Anehia & Anor. v. The State (1982) NSCC 85, Nasanmu v. The State (1974) All NLR, 193, The State v. Danjumai (1997) 5 SCNJ, 126.

Secondly, although a conviction may be made on the evidence of a single witness, it is always safer that the trial Judge warns himself of the danger of conviction on the uncorroborated evidence of such a witness more so in a case where there existed inter-family disputes. See: Iko v. The State (2001) 7 S.C. (Pt. II) 115; (2001) 35 WRN 1 at 22-23; (2001) 14 NWLR (Pt.732) 221 at 241-242. The essence of the corroborative evidence is to give support or strength to the assertion of the prosecution. That is why, as a matter of practice, a trial court should be very slow to convict on uncorroborated evidence of the prosecution. Thus, in view of the several material contradictions in the evidence led by the prosecution, the conviction of the 2nd accused/respondent cannot stand. I resolve issue No.2 in favour of all the respondents.

Issue No. 3 is on whether the lower court was right in not reviewing all the issues submitted to it for consideration. The concluding part of the lower court’s judgment reads:-

“The decision of the learned trial Judge convicting the appellants as charged cannot stand and it is hereby set aside. The conviction and sentence imposed by the lower court are hereby quashed. The appellants are discharged and acquitted on all the counts.

Having arrived at this conclusion, it will be an exercise in futility to give consideration to the remaining issues formulated by the parties to this appeal.”

It is to be noted that the appellant herein was the respondent at the court below. It was supposed to respond to the issues formulated by the appellants before the court below. However, as there is no law prohibiting a respondent from formulating his own issues for determination within the confines of the grounds of appeal filed by an appellant the issues so formulated by the respondent were thus, competent. Below are the issues formulated by the respondent in the court below:

“Issue 1

Whether the prosecution proved its case beyond reasonable doubt to justify the conviction and sentence of all the appellants for the offences of criminal conspiracy and culpable homicide contrary to Sections 97(1) and 221 of the Penal Code. (This relates to grounds 5 and 7 of the notice of appeal)

Issue 2

Whether the prosecution did established (sic) a case of grevious hurt against the appellants before the trial court. (This relates to grounds 3, 4 and 6 of the notice of appeal.

Issue 3

Whether the trial court was wrong to have overruled the defence of alibi raised by all the appellants (Relates to grounds 1 & 2 of the notice of appeal).”

Issue No 3 was on the defence of alibi which the court below considered and came to the conclusion reached in setting aside the judgment of the trial court. The law is trite that where the defence of alibi succeeds, there is no need for the court to consider other elements involved in the offence charged as the accused were not at the scene of crime and the presumption is that they did not ipso facto, commit the crime charged. See: Ukwunnenyi v. State (1989) 7 S.C. (Pt. I) 64, Udoebre & Ors. v. The State (2001) 6 S.C.1; (2001) 6 SCNJ 54, Dogo & Ors. v. The State (2001) 1 S.C. (Pt. II) 30; (2001) 1 SCNJ 315. So there was no need for the court below to consider issues 1 and 2 which were formulated to cover the burden and standard of proof required in the establishment of the offences charged. A court of law deals with live issues which will have bearing in one way or the other on any of the parties or all the parties before it. A court of law cannot serve as a forum for moot trials or academic exercises. See: Iweka v. SCOA Nig. Ltd. (2000) 3 S.C. 21; (2000) 3 SCNJ 71, Abimbola v. Abatan (2001) 4 S.C. (Pt. I) 64; (2001) 4 SCNJ 73, Bello v. Fayose & Ors. (1999) 7 S.C. (Pt. II) 5; (1999) 7 SCNJ 286.

In the final result, I find no merit in this appeal and it is hereby dismissed. I affirm the decision of the court below which set aside the decision of the trial court by discharging and acquitting all the six accused persons/respondents.


SC.123/2005

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