3PLR – JOHN AJIBO V. THE STATE

POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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JOHN AJIBO

V.

THE STATE

IN THE COURT OF APPEAL OF NIGERIA

ON TUESDAY, THE 7TH DAY OF MAY, 2013

CA/E/349/2009

3PLR/2013/88

 

 

OTHER CITATION

(2013) LPELR-21359(CA)

BEFORE THEIR LORDSHIPS

ABUBAKAR JEGA ABDUL-KADIR, JCA

MOJEED ADEKUNLE OWOADE, JCA

EMMANUEL AKOMAYE AGIM, JCA

 

BETWEEN

JOHN AJIBO – Appellant(s)

AND

THE STATE – Respondent(s)

 

REPRESENTATION

Emeka Uwakwe Esq. – For Appellant

AND

Dr. Barr. Ben. O. Igwenyi, MON Attorney-General of Ebonyi State Ministry of Justice Abakaliki. – For Respondent

 

ORIGINATING STATE

Ebonyi State: High Court

 

MAIN ISSUES

CRIMINAL LAW:– MURDER – Ingredient for proving same – relevant considerations

CRIMINAL LAW AND PROCEDURE – ADMISSION OF GUILT: when accused person exercises the right to remain silent – duty of court is not to treat it as an admission of guilt – need for the case to be decided on the basis of the evidence given by the prosecution – whether accused is under any duty to say anything either by himself or elicit evidence through any other witness that will incriminate him – when the accused chooses to testify or elicit evidence through other witnesses in defence and thereby introduces self incriminating evidence – whether nothing in law prevents the prosecution from relying on such evidence to support or prove its case or the court from relying on such evidence to convict the said accused

CRIMINAL LAW AND PROCEDURE – ARRAIGNMENT OF ACCUSED PERSON: record of arraignment – what it must state so as to comply remove certain fundamental requirements of a fair criminal trial from the realm of assumption and conjecture

CRIMINAL LAW AND PROCEDURE – DEFENCE OF ALIBI: Meaning – In the absence of any evidence that the appellant had raised the plea of alibi earlier during investigation – whether trial court can hold that the defence of alibi which evidence shows was being raised for the first time in court, was not proved and failed – whether a court of law will discharge and acquit an accused person solely on the defence of alibi proffered by him for the first time from the witness box and under cross-examination – When prosecution will assume the duty to investigate or disprove an alibi raised by the accused person – when defence of alibi is deemed to have crumbled – when the prosecution is deemed to have given superior and more believable evidence than that of the accused, by fixing permanently the accused person not only at the scene of the crime, but also in the commission of the crime – duty of the Police to investigate a claim of alibi – whether arises only when the accused raises the plea of alibi unequivocally with sufficient particulars – Where it has been raised and the police investigating officers fail to investigate the claim – whether the facts as disclosed by the accused will be taken as established

CHILDREN AND WOMEN LAW: Women and Crime/Security of lives – Murder – Security of neighbourhood and family lives – Sister as witness to murder of deceased brother – How treated

ETHICS – LEGAL PRACTITIONER:- Commendation of Counsel by Court – for “indefatigable diligence, perseverance and co-operation” in bringing a protracted case to a satisfactory end – Relevant considerations

PRACTICE AND PROCEDURE – EVIDENCE – ADMISSIBILITY OF A PREVIOUS JUDICIAL PROCEEDING: Previous judicial proceedings – whether can be used or admitted in subsequent proceedings to prove the truth of the fact which it states, irrespective of the outcome of the proceedings or how it was concluded – need to comply with S. 46(1) Evidence Act, 2011

PRACTICE AND PROCEDURE – EVIDENCE – BURDEN OF PROOF: S. 135(3) Evidence Act, 2011 – alibi – evidential burden imposed on the accused to prove reasonable doubt in the case of the prosecution against him – evidential burden of eliciting some evidence in support of the plea of alibi the accused had raised during investigation – evidential burden to show that during investigation he informed police of the facts that constitute this plea – whether lies on defendant or prosecution

PRACTICE AND PROCEDURE – EVIDENCE – BURDEN OF PROOF: On whom lies the burden of proof with respect to the defence of alibi – primary and general onus of proving the guilt of an accused person is all through on the prosecution and never shifts – defence of alibi as a matter peculiarly within the knowledge of accused persons – duty of accused person to duly raise the defence of alibi and give such particulars as the prosecution can investigate – whether evidential burden of eliciting some evidence in support of the alibi lies on defendant

PRACTICE AND PROCEDURE – EVIDENCE – BURDEN OF PROOF: Criminal case – burden on the prosecution to prove beyond reasonable doubt the guilt of the accused –  accused presumed innocent until he is proven or has pleaded guilty – whether accused has any duty to prove his innocence – S. 135(3) and S. 137 of the Evidence Act, 2011 – where the evidential burden to prove reasonable doubt on a balance of probabilities has shifted to the accused – whether he has a right to remain silent and refuse to say anything – whether the prosecution has no duty in law to share in the evidential burden of the accused to prove the plea of alibi he had raised at the investigation stage – whether it is only when the accused has successfully discharged his evidential burden, that the evidential burden on the prosecution arises to disprove it by showing that the particulars of the plea were investigated and found to be false – whether accused has the duty to ensure that his extra judicial statement is tendered in evidence – whether accused can call for his extra judicial statement to be tendered in accordance with law if the prosecution has not tendered it in evidence

PRACTICE AND PROCEDURE – EVIDENCE – CREDIBILITY OF WITNESS: Question whether the testimony of a witness on a particular issue should be believed or not – whether can be determined only by reference to the general credibility of the witness – need to base determination of the question on a consideration of the particular evidence in relation to any other evidence of that witness on the same issue and the evidence, if any of other witness on the same side and the evidence, if any, of the witness of the opposite side – Whether it will not be right and realistic and can cause a serious miscarriage of justice to assume that a reputed liar is incapable of speaking the truth – need to distinguish between taking into consideration a witness’ propensity to lie in determining the weight to attach to his testimony and the outright dismissal of his witness with the mindset that he is not likely to speak the truth

PRACTICE AND PROCEDURE – EVIDENCE – CROSS-EXAMINATION: The aim of cross-examination -Twofold aim of cross-examination – to neutralize or demolish the case of the opponent – to establish a party’s own case by means of his opponent’s witnesses – whether through cross-examination a party obtains from one’s adversary facts favourable to a party’s case or to weaken or dilute the strength of the evidence in-chief –  when there is nothing in the evidence in chief incriminating or touching the accused  – whether cross-examination aimed at contradicting a witness to test his or her accuracy, veracity or credibility, in respect of the testimony of the witness in examination-in-chief becomes unnecessary – when evidence adduced in earlier proceedings in subsequent proceedings may be admitted during for the purpose of discrediting the witnesses – Whether previous written statement of a witness in a previous proceeding which was struck off cannot be used to cross-examine such witness for the purpose of contradicting him

PRACTICE AND PROCEDURE – APPEAL – ERROR IN PROCEEDINGS: Whether it is every error in proceedings that can vitiate the proceedings on appeal – errors which are deemed substantial and or occasion a miscarriage of Justice in the sense that but not for the error the decision would have been different – how treated

PRACTICE AND PROCEDURE – EVIDENCE – EXTRA JUDICIAL STATEMENT: Meaning of extra –judicial statement – absence of the extra judicial statement where the accused raised the plea of alibi – whether raises doubt as to whether the accused did raise the plea of alibi before the police – whether the clear result of the absence of such statement in evidence or any other evidence of the plea having been made before the police is that there is no evidence that the appellant raised the plea of alibi at the earliest opportunity, when he was first confronted with the allegation of his complicity in the crime during investigation – whether absence of evidence that the accused discharged his duty to disclose to the police at the earliest opportunity before trial his plea alibi removes the legal basis for holding or presuming that the police had a duty to investigate the alibi

PRACTICE AND PROCEDURE – APPEAL – FINDINGS OF FACT: Where a finding of fact is not appealed against – whether a party who has not appealed against a finding of fact or any decision against him will be regarded as having accepted such finding of fact or decision as correct – Whether a party can, on appeal, argue against an unchallenged finding of fact and holding of a trial court that he has not appealed against

PRACTICE AND PROCEDURE – APPEAL – GROUND OF APPEAL: Implication of a ground of appeal that complains or alleges that the judgment of the trial court in a criminal case “is unreasonable, unwarranted and cannot be supported having regard to the weight of evidence” – whether an invitation to appellate court to review the judgment of the trial court according to the burden and standard of proof in a civil case, that is, on a balance of probabilities or preponderance of evidence – S. 135(1) of the Evidence Act, 2011- where the commission of a crime by a party to any proceeding is directly in issue in any civil or criminal proceedings – whether it must be proved beyond reasonable doubt

PRACTICE AND PROCEDURE – APPEAL – ISSUES FOR DETERMINATION: Issue for determination whether raised by appellant or respondent – whether can be competent and valid for determination if it not derived from a competent ground of appeal – legal effect thereof

PRACTICE AND PROCEDURE – EVIDENCE – WITHOLDING EVIDENCE: Failure to produce extra judicial statement when requested for by the defence – whether can create an impression of withholding relevant evidence by the prosecution and may also give an impression that such material evidence is unfavourable to the case of the prosecution and render the criminal process suspect – attitude of court to evidence that is material to the case of defence and in the custody of the prosecution not being put in evidence to enable the trial court do justice in the case

PRACTICE AND PROCEDURE – EVIDENCE – WRONGFUL EXCLUSION OF EVIDENCE: Section 227(2) Evidence Act Cap 112 (now section 251 Evidence Act, 2011) – wrongful exclusion of evidence – whether shall not of itself be a ground for the reversal of any decision in any case if it appears to the court on appeal that had the evidence excluded been admitted it may reasonably be held that the decision would have been the same

INTERPRETATION OF STATUTE:- Section 227(2) Evidence Act Cap 112 (now section 251 Evidence Act, 2011), S. 135(1) of the Evidence Act, 2011, S. 46(1) Evidence Act, 2011

 

 

 

MAIN JUDGMENT

EMMANUEL AKOMAYE AGIM, J.C.A.(Delivering the Leading Judgment):

Upon an information filed at the Ebonyi State High Court, Abakaliki Judicial Division the appellant and two others, namely Cornelius Obasi and Jeremiah Egboma were in charge No. HAB/5C/92 charged as follows:

STATEMENT OF OFFENCE

“MURDER contrary to section 274(1) Cap. 36 Laws of Anambra State of Nigeria as applicable to Ebonyi State

PARTICULARS OF OFFENCE

CORNELIUS OBASI, JEREMIAH EGBOMA AND JOHN AJIGBO

On the 25th day of September, 1991 at Ogbala Ishieke in Abakaliki Judicial Division murdered Nathaniel Nwaekwo.”

 

The case has a long and chequered history. The appellant and the said two others were first brought on 19th November 1991 on a two counts charge of conspiracy to commit a felony; to wit murder, contrary to S. 494 of the Criminal Code Cap. 36 vol. 1 Laws of Anambra State of Nigeria and murder contrary to S. 274(1) of the Criminal Code Cap. 36 vol. 1 Laws of Anambra State of Nigeria as applicable to Enugu State of Nigeria before the Abakiliki Magistrates Court, which referred the case to the High Court.

 

The criminal proceedings from which this appeal arose was commenced by an information dated 16th January 1992 containing one count of murder filed in the Enugu State High court on 5th February 1992 at Abakiliki Judicial division. Trial commenced and restarted several times before several judges for one reason or the other. Two appeals have come to this court on issues arising from the trial. The trial again started de novo with the arraignment of the accused persons before the High Court, now, Ebonyi State High court (Abakaliki is now in Ebonyi State created out of Enugu State), with Obande Ogbuinya.J now presiding, on the 1st of February 2005 and proceeded to conclusion and judgment for the first time. I therefore find justified the comments of the trial court in its judgment as follows –

“Before I sign off by handing down my verdict in this judgment, I must sincerely commend the two lawyers in this case. Their indefatigable diligence, perseverance and co-operation have brought this age long case to end at long last. The case which is about one and a half (11/2) decades old had been inconclusively heard in many courts so much so that its indeterminacy has almost cast a slur on the competence of the stakeholders in the administration of justice, the bar and the bench in particular. One of the Judges that heard the case has risen to the Supreme Court. These are why the Court is beholden to the two lawyers for their industry they exhibited towards the accomplishment of this case.”

 

I also commend the trial Judge for his expeditious treatment of the case. The record of the proceedings of the trial court on 1st February 2005 on the arraignment of the trio, with due respects, is less than satisfactory. The record reads thus:

“Plea: the one-Count charge or information is read by the clerk of court to the 1st accused person in English Language and the, 1st accused person, understands same to the satisfaction of the court before taking his plea. The 1st accused person pleads not guilty to the one-count charge or information.

The one-count charge or information is read by the clerk of court to the 2nd accused person in English Language and he, the 2nd accused person, understands same to the satisfaction of the court before taking his plea. The 2nd accused person pleads not guilty to the one-count charge or information.

The one-count charge or information is read by the clerk of court to the 3rd accused person in English Language and interpreted him in Igbo Language and he, the 3rd accused person, understands same to the satisfaction of the court before taking his plea. The 3rd accused person pleads not guilty to the one-count charge or information.”

 

The one count charge that was read to the accused persons, which they perfectly understood and pleaded to is not stated. The name of the person who interpreted the charge from English language to Igbo language is not stated. There is also no indication that such interpreter was under oath to interpret correctly. Finally the exact words of the appellant containing his plea is not stated. It is desirable that the record of arraignment should also state the details I have mentioned above to remove compliance with certain fundamental requirements of a fair criminal trial from the realm of assumption and conjecture. As it is, it can only be assumed that the charge in the information filed on 5-2-1992 is the one read to the appellant in court and to which he pleaded and that somebody did interpret the charge to the appellant from English language to Igbo language and that the interpreter was sworn to an oath to interpret correctly. It is assuring that Learned Counsel for the appellant was present during the arraignment of the appellant and has not alleged that the record of the arraignment proceedings is not correct in any respect. It is also clear from the testimony of the appellant and his counsel’s address at the trial court and in this court that he has not been misled, prejudiced, or disabled in any way by the processes and proceedings of the trial court. His counsel was present throughout the entire proceedings of the trial court.

 

Trial of the appellant and two others commenced on 21st February 2005. The prosecution led evidence through three witnesses, namely, Bridget Nwele (PW1), Emmanuel Ogali (PW2) and Igwe Paulinus (PW3). After the closure of the prosecution’s case, a no case submission was made by the defence and was overruled and dismissed for being “wholly bereft of merit.”

 

The three accused persons testified for themselves as follows, Cornelius Obasi 1st accused (DW1), Jeremiah Egboma, 2nd accused (DW2), and the appellant, 3rd accused (DW3). After the closure of the defence case, both Counsel finally addressed the trial court. On the 15th February 2007, the trial court rendered its judgment convicting each of all the accused persons for murder and sentenced each of them to death by hanging.

 

Dissatisfied with this judgment, the appellant commenced this Appeal No. CA/E/349/2009 by a notice of appeal dated 12-3-2007 and filed on 13-3-2007 containing 8 grounds of appeal. The notice of appeal was subsequently amended with leave of court and the Amended notice of appeal was deemed filed on the 7-4-2011.

 

The appellant and the respondent filed, exchanged and adopted their respective briefs of argument. The briefs filed by the appellant include his Amended appellant’s brief of argument which was deemed filed on 7-4-2011 and the appellants reply brief of argument. The respondent’s amended brief of argument was deemed filed on 23-2-2012. The appellant in his amended brief raised the following issues for the determination of this appeal:

1. Whether the learned trial judge was justified in the circumstances of this case in expunging Exhibit D from the proceedings and discountenancing same for the purpose of discrediting the evidence of PW1?
2. Whether it was illegal, unconstitutional, unfair and prejudicial to the Appellant in the circumstances of this case for the learned trial judge to heavily rely on the evidence of PW2 to convict him when the PW2’s name, address and statement to the police were not contained in the proofs of evidence as required by law and when he did not testify for the prosecution in the two previous proceedings in the case?
3. Whether the evidence of PW1 and PW2 were in the circumstances of this case, credible cogent, consistent and free from reasonable doubt to warrant the conviction of the Appellant for the heinous offence of murder?
4. Whether it is permissible in a criminal trial of this nature and in the face of the appellant’s plea of alibi for the prosecution to secure his conviction without tendering his extra judicial statement to the police and without any evidence from the investigating police Officer?
5. Whether the learned trial judge was justified in sifting and using excerpts from the extra judicial statements of PW1 (Exhibit E) which were solely tendered for the purpose of contradicting her oral evidence in court in convicting the Appellant?

 

The respondent in its brief also raised five issues for determination in this appeal as follows:

1. Whether from the totality of evidence as adduced by the prosecutions, the learned trial judge was right in holding that the prosecution established the ingredients of murder against the Appellant.
2. Whether there were any fundamental or material contradictions in the evidence of the prosecution witnesses to render them unreliable and could the expunged Exhibit “D” have made any difference in the assessment of Evidence?
3. Whether the Learned Trial Judge erred in law to have taken into consideration the evidence of PW2 whose name and statement were not contained in the proof of evidence before the court?
4. Whether the defence of Alibi could avail the Appellant and also whether the failure of the prosecution to call a particular witness, in this case an IPO is fatal to its case?
5. Whether the Learned Trial Judge was not justified in making use of the extra judicial statement of a witness tendered in court in the assessment of the entire evidence before the court?

 

The appellant raised no issue for determination from ground 9 of the amended notice of appeal. I will therefore treat the ground as abandoned.  It is hereby struck out. See NGILARI V. MOTEHRCAT LTD (1999) 12 SC (pt 11) 1 and SAPO & ANOR V. SUNMONU (2010) 11 NWLR (pt 1205) 374.

 

In any case the said ground 9 is not the appropriate omnibus ground of appeal in a criminal appeal. The appropriate and proper omnibus ground of a criminal appeal is that the judgment is against the evidence or is not supported by the evidence.

A ground of appeal that complains or alleges that the judgment of the trial court in a criminal case “is unreasonable, unwarranted and cannot be supported having regard to the weight of evidence” is an invitation to this court to review the judgment of the trial court according to the burden and standard of proof in a civil case, that is, on a balance of probabilities or preponderance of evidence. This is contrary to S. 135(1) of the Evidence Act, 2011 which provides that if the commission of a crime by a party to any proceeding is directly in issue in any civil or criminal proceedings it must be proved beyond reasonable doubt. Such a ground of appeal that invites the court to determine an appeal on clearly fundamentally wrong principles is not arguable.

 

In WELLE V. BOGUNJOKO (2007) 6 NWLR (pt 1029) 125 this Court per Galinje JCA following the Supreme Court decision in ATUYEYE & ORS V. ASHAMU (1987) NWLR (pt. 49) 267, restated the distinction between the general or omnibus ground of appeal in criminal cases and that in civil cases and the principle underlying such distinction in the following words – “a civil appeal on the facts is not quite the same as an appeal on the facts in a criminal case. In a criminal appeal the general ground is that the verdict is unreasonable and cannot be supported having regard to the evidence whilst an omnibus ground in civil appeal is that the judgment is against the weight of evidence. While in criminal matters, the prosecution must prove his case beyond reasonable doubt, civil matters are decided on the preponderance of evidence, that is, when the evidence adduced by the appellant is weighted against that which is adduced by the respondent. It is therefore wrong to couch a ground that is not in conformity with this proof.” See also SULU – GAMBARI V. BUKOLA (2004) 1 NWLR (pt.853) 122. In ATUYEYE V. ASHAMU (supra) the supreme court relied on the statement of Ademola CJF in OKEZIE V. QUEEN (1963)1 All NLR 1 at p. 3 that “the words “weight of evidence” are not applicable in criminal appeals. This court would like to stress the point that a criminal appeal on the facts is not quite the same as an appeal on the facts in a civil case. In a civil appeal the general ground is that the judgment is against the weight of evidence, whilst in a criminal appeal it is that the verdict is unreasonable or cannot be supported having regard to the evidence…It is clear that unless there is some evidence to support it, the verdict in a criminal case cannot stand. The other test is whether a reasonable tribunal or jury, if they appreciated the evidence rightly and applied the law appropriate to the case, could have returned the verdict. This is the light in which a criminal appeal on the facts should be argued and approached.”

 

Considering the judgment of the trial court the grounds of appeal, the issues for determination raised by both sides and their argument thereon. I will adopt the issue for determination raised by the appellant.

 

Issue No. 1 of the respondent’s amended brief is not derived from any valid or arguable ground of appeal in the amended notice of appeal. The omnibus or general ground of appeal that would have given rise or sustain such an issue was abandoned by the appellant and as already held herein is inappropriate in a criminal appeal and is therefore unarguable. An issue for determination whether raised by appellant or respondent cannot be competent and valid for determination if it is not derived from a competent ground of appeal. If the ground of appeal on which it is based is invalid or if it is not based on any ground of appeal, then such an issue is incompetent and not valid and no competent argument can be made thereunder. See OJE & ANOR V. BABALOLA & ORS (1991) 5 SC 128

 

The issues remaining for determination are issues Nos. 1, 2, 3, 4 and 5 of the appellants brief and issues Nos. 2, 3, 4 and 5 of the respondent’s brief.
Let me start with issue No. 1 in the appellant’s brief. The question here is whether the trial court was right to have expunged exhibit D from the trial proceedings and refused to rely on same for its judgment.

 

Exhibit D is the Certified True Copy of the judicial proceedings of the trial before Hon. Justice Chukwuma – Eneh J (as he then was). It contains the testimony of the PW1 in examination-in-chief and in cross-examination in the trial before His Lordship. It is clear from the proceedings of the trial court on 21-2-2005 and 9-3-2005 that Learned Counsel for the defence tendered it through PW1 during cross-examination to contradict her answer to his questions.

 

The trial court in its judgment reconsidered the admissibility of exhibit F, G, G1, H, H1, H2, J, J1, K and L for non compliance with S. 34(1) Evidence Act Cap 112 (now S. 46(1) Evidence Act, 2011). After holding that their admission violated the said S. 34(1) of the Evidence Act (now S. 46(1) Evidence Act, 2011), the trial court expunged them from evidence in the proceedings. The trial court then proceeded to find that exhibit D is the exact replica of exhibit F and since in both exhibits the proceedings were struck out by the trial court following a no case submission, it follows therefore that the proceedings never existed and are of no legal consequence. The trial court said “Being non-existent they are not worth the papers they are written in terms of the purposes, contradictions, for which they were put in evidence. Having regard to the foregoing, this court will totally turn a blind eye to exhibits F and D even as all the contradictions hinged on them will come to naught for want of substratum. In other words I hold and declare them invalid and improper before this court for the consideration of this case.”

 

Against this portion of the judgment of the trial court, Learned counsel for the appellant has argued under issue No 1 that –

(i)      The said decision of Hon. Justice Chukwuma-Eneh striking out the proceedings was reversed and set aside by this court in Appeal No. CA/113/96 and that on 24-6-96, this court ordered trial denovo.

(ii)     The trial court should have addressed its mind to the certified true copy of the said decision of this court in its case file, which decision had then been reported as STATE V. OBASI (1998) 9 NWLR 567 page 686.

(iii)    Exhibit D was admissible for the purposes of cross-examining PW1 by virtue of S. 199 of the Evidence Act Cap 112 (now S. 232 Evidence Act, 2011) being PW1’s previous statement reduced into writing.

(iv)    Exhibits D and F were tendered for different purposes.

(v)     The trial court suo motu raised and reconsidered the admissibility of exhibit D and expunged it from the evidence.

(vi)    The judgment of the trial court would have been different if exhibit D was not expunged and disregarded.

 

The Learned Attorney General of Ebonyi State for the respondent replied that:

(i)      The trial court was correct that exhibit D ceased to exist following the said striking out by Hon. Justice Chukwuma – Eneh.

(ii)     This court in STATE V. OBASI reinstated the charge in AB/5C/92 and not the proceedings therein and ordered trial denovo.

(iii)    Assuming exhibit D was not expunged, it would have made no difference.

 

I agree with Learned Counsel for the appellant that it was wrong for the trial court to have suo motu expunged exhibit D from the evidence in the proceedings during judgment without first calling on the parties to address it on whether or not it can expunge it as wrongfully admitted evidence. The need for the trial court to have heard the parties before expunging exhibit D is made more acute by the fact that the appellant had relied heavily on that evidence in his defence.
I also agree with Learned Counsel for the appellant that since this court had reversed and set aside the decision of Hon. Justice Chukwuma-Eneh striking out the proceedings before him, the reason relied on by the trial court for expunging exhibit D had ceased to exist at the time it expunged exhibit D. In any case, I fail to see the basis for the decision of the trial court that because the proceedings of a court was struck out for the reason that the originating process is bad, the statements of the witnesses who testified therein cannot be used in subsequent judicial proceeding as their previous statements reduced into writing for the purpose of contradicting any of such witnesses. S. 199 Evidence Act Cap 112 (now S. 232 Evidence Act, 2011) permits the use of a previous written statement of a witness to cross-examine him or her for the purpose of contradicting such a witness. S. 232 Evidence Act, 2011 provides that ” A witness may be cross-examined as to previous statements made by him in writing or reduced into writing and relative to matters in question in the suit or proceeding in which he is cross-examined without such writing being shown to him or being proved, but if it is, intended to contradict such witness by the writing, his attention must, before such writing can be proved, or such contradictory proof given, be called to those parts of the writing which are to be used for the purpose of contradicting him: provided always that it shall be competent for the court at any time during the trial to require the production of the writing for its inspection, and the court may thereupon make use of it for the purposes of the trial, as it deems fit.”

 

Exhibit D was admitted under this provision for the purpose of contradicting PW1. It is clearly admissible and legal evidence by virtue of that above provisions. Furthermore, previous judicial proceedings can be used or admitted in subsequent proceedings to prove the truth of the fact which it states, irrespective of the outcome of the proceedings or how it was concluded provided that the provisions of S. 46(1) Evidence Act, 2011 is complied with. There is nothing in S. 46(1) of the Evidence Act precluding the admissibility of such previous judicial proceedings in subsequent judicial proceedings because it was struck out, dismissed or terminated in some other way. There is no doubt that Exhibit D was not admissible under S. 46(1) Evidence Act, 2011 because the requirements for its admissibility under those provisions were not complied with.

 

In any case it was not admitted under those provisions. It was admitted under S. 199 Evidence Act Cap 112 (now S. 232 Evidence Act, 2011) to contradict PW1 to impeach her credibility. It satisfies the requirement for admissibility under S. 232 Evidence Act, 2011. See LSPDC V. ADOLD/STAMM INT. LTD. (1994)7-8 SCNJ 625 where the Supreme Court held that the evidence given in an earlier case by persons who also testify in a later case may be used for cross-examination as to credit but it is of no higher value than that. See also IKENYE V. OFUME (1985) 2 NWLR, (pt. 5) 1 at 6-8 ALAKIJA & ORS V. ABDULAI (1998) 5 SC 1 and MADUMERE & ORS V. OKAFOR & ORS (1996) 4 NWLR (pt 445) 632.
For the foregoing reasons, I set aside the decision of the trial court expunging exhibit D from the evidence in the proceedings of the trial Court. Accordingly it is restored as part of the admitted evidence in that proceedings.

 

The appellants issue No.1 as couched did not include the issue that the exclusion of exhibit D occasioned a miscarriage of Justice. Even grounds 1, 2 and 10 of this appeal from which it derives did not so allege. The mere showing that the expunging of exhibit D by the trial court is not justified in law is not sufficient to secure the success of this appeal on grounds 1, 2 and 10 herein. It is trite law that it is not every error in proceedings that can vitiate the proceeding and that only such errors that are substantial and or occasion a miscarriage of Justice in the sense that but not for the error the decision would have been different.

 

In addition to the general law, S. 227(2) Evidence Act Cap 112 (now S. 251(2) Evidence Act, 2011) provides that:

“The wrongful exclusion of evidence shall not of itself be a ground for the reversal of any decision in any case if it appears to the court on appeal that had the evidence excluded been admitted it may reasonably be held that the decision would have been the same.”

 

Learned counsel for the appellant recognized that the appellant’s task was not completely discharged by merely showing that the expunging of exhibit D was wrong. According to counsel “The appellant is not done in the task of getting a favourable resolution of this issue unless he complies with S. 251(2) of the Evidence Act by showing that the judgment of the learned trial court would have been different but for the wrongful rejection of exhibit D.”

 

Learned Counsel for the appellant has argued that there are material contradictions between the testimony of the PW1 in this proceedings and her testimony in the previous proceedings in exhibit D and that exhibit D is required to show those contradictions. The trial court itself recognized that the result of the exclusion of exhibit D is that it cannot be used for the purpose it was meant to show the contradictions in the testimony of PW1.

 

The duty is now that of the appellant to show how and in what respect exhibit D materially contradicts the testimony of PW1 in the proceedings resulting in this appeal. Learned counsel for the appellant has stated in paragraph 4.17 at page 6 under issue No. 1 of the appellant’s brief that “The material contradictions clearly elicited during cross-examination of PW1 with exhibit D are more appositely disclosed under consideration of issue No.3 at paragraph 6.14 pages 15-16 of this brief.”

 

I have read the said paragraph 6.14. This is what it says-

“The contradictions in the evidence of PW1 with Exhibit D are thus outlined:

25. The evidence of PW1 at page 12 Lines 3-6 of the record that she did not go to Benjamin Ewa to report the incident is in contradiction to her evidence in Exhibit D at page 188 Lines 30-31 and page 190 Lines 23-25. It also contradicted her evidence in Exhibit C (page 160 Lines 1-4)
26. The evidence of PW1 at page 19 line 4-15 of the record that she did not ask the 2nd Accused to provide his vehicle for use in going to the house of Benjamin Ewa on the night of the incident is in sharp conflict with her evidence in Exhibit D at page 188 lines 31-33.
27. The evidence of PW1 at page 13 lines 19-21 that the 2nd Accused did not respond to the alarm she raised on the night in question is in conflict with her evidence in Exhibit D at page 190 lines 30-32.
28. The evidence of PW1 at page 13 lines 25-27 denying having previously testified in Exhibit D that she did not know whether or not the 2nd Accused participated in the search for the deceased is in conflict with her evidence in Exhibit D at page 191 lines 1-2.
29. The evidence of PW1 at page 14 lines 12-15 denying that she did not previously testify that it was the time the attackers were quarrelling with her late brother that she recognized the voice of the Appellant is in conflict with her evidence in Exhibit D at page 188 lines 6-8
30. The evidence of PW1 at page 15 lines 18-20 denying having earlier testified in Exhibit D that apart from the Appellant, she did not recognize any other person or voice is in conflict with her previous evidence in Exhibit D at page 189 lines 11-13 and page 207 lines 3-4.
31. The evidence of PW1 at page 15 lines 21-23 that had earlier testified in Exhibit D that her late brother mentioned the names of the 2nd and 3rd Accused while being attacked cannot be justified by a reading of her testimony in Exhibit D at pages 187-191 of the record.”

 

There is nothing in this portion of the appellant’s brief that shows the material contradictions between the testimony of PW1 in this proceedings and her testimony in exhibit D. The above portion of the appellant’s brief contains arguments or allegations that the evidence of PW1 at certain pages and lines of the record of this appeal conflict with her evidence in exhibit D at certain pages and lines in the record of this appeal. Learned Counsel should have gone beyond mere arguments and assertions to highlight the portion of the PW1’s testimony in this proceedings and highlight her exact testimony in exhibit D that contradicts it. The contradiction can only be outlined or shown by a Juxtaposition of the two versions of her testimony. It amounts to mere argument to say for example that PW1’s evidence at page 12 lines 3-6 of the record that she did not go to Benjamin Ewa to report the incident is in contradiction to her evidence in exhibit D at pages 188 lines 30-31 and pages 190 lines 23-25. The exact content of the wordings of each version must be put side by side to show the contradiction. The appellant has failed to demonstrate how exhibit D materially contradicts PW1’s testimony in these proceedings.

 

In dealing with this question of whether the error of the trial court in expunging exhibit D occasioned any miscarriage of justice, it is important to call to mind that:

(i)      the appellant herein was convicted solely on the finding of fact and holding of the trial court that PW1 identified appellant by voice as one of the attackers she heard exchanging words with the deceased in the latter’s bedroom between 1 to 2 am on 25-9-91.

(ii)     There is no ground of appeal against this finding of fact of voice identification of the appellant by PW1.

(iii)    It is trite law that a party who has not appealed against a finding of fact or any decision against him will be regarded as having accepted such finding of fact or decision as correct.

(iv)    Identification of the appellant by PW1 was not given by the PW1 in examination in-chief. It was elicited by Learned Counsel for the defence through cross-examination. It is evidence elicited by the defence. It is not elicited the prosecution.

 

The questions arising here for consideration at this juncture is whether there is any contradiction between the testimony of PW4 in exhibit D and her testimony as PW1 in examination-in-chief in the current trial proceedings as regards the presence of the appellant at the scene of crime.

 

There is none. PW1’s evidence remained consistent in both proceedings. In both proceedings she did not mention the appellant as being present in the scene of crime. In both proceedings she identified only the 1st accused as the person she saw and whose voice she recognized. That was her testimony in exhibit D and in examination-in-chief in this proceedings. In fact that is the case of the prosecution against the appellant because no other witness gave admissible evidence of identifying the appellant as being present at the scene of crime.
It was the defence that introduced some pieces of self incriminating evidences that were never mentioned by PW1 in her testimony in examination-in-chief. This self incriminating evidence was elicited by the defence through its cross-examination of PW1 as follows –

“Qtn. Had you known the accused persons before this incident

Ans. Yes.

Qtn. While you were inside your room, you heard the accused persons quarrelling with your late brother on the night of the incident, on 25/09/1991?

Ans. On that day, I was in my room and heard my late brother in his room asking the 2nd and 3rd accused person what he had done to them as they were brothers. When I wanted to come out, the 1st accused ordered me to get inside my room.

Qtn. Did you recognize the voices of the 2nd and 3rd accused persons when they were quarrelling with your late brother?

Ans. I recognized their voices when the 2nd and 3rd accused persons were quarrelling with my late brother.

Qtn. In exhibit D you told the court that:”Apart from the 1st accused person, I did not recognize any other person or voice but they were many there”?

Ans. It is not true.  It is what I have said that I told the court in exhibit D.

 

A careful reading of the evidence in examination-in-chief reveal that –

(i)      PW1 did not say that the appellant was with others in the bedroom of the deceased.

(ii)     PW1 did not say that the appellant  and others in the bedroom of the deceased were quarrelling in the deceased’s bedroom.

(iii)    PW1 did not say that she heard the appellant and others quarrelling with the deceased.

(iv)    PW1 did not say that she recognized the voice of the appellant.

 

A careful consideration of the above questions in cross-examination shows that they were framed as statements of facts requiring confirmation or refutal by the witness. The question by their nature suggested the evidence. Since the PW1 did not give any incriminating evidence against the appellant, I fail to see the reason for such affirmative and suggestive statement of facts being put to the PW1 for her confirmation or refutation. The questions themselves suggest knowledge of the facts contained therein by the defence. What is the source of that knowledge. How did the defence come by such facts.

 

The aim of cross-examination is twofold, namely, to neutralize or demolish the case of the opponent and to establish a party’s own case by means of his opponent’s witnesses. So through cross-examination a party obtains from one’s adversary facts favourable to a party’s case or to weaken or dilute the strength of the evidence in-chief. See OJIAKO V. STATE (1991) 2 NWLR S. 78 at 588, Phipson on Evidence, 12th Edition para. 1592 and Modern Nigerian Law of Evidence by Fidelis Nwadialo 2nd Edition p. 502-503.

 

Ordinarily, if there is nothing in the evidence in chief incriminating or touching the accused cross-examination aimed at contradicting a witness to test his or her accuracy, veracity or credibility, in respect of the testimony of the witness in examination-in-chief becomes unnecessary. If the cross-examination was meant to demolish the case the prosecution had built against accused, then there was nothing to demolish. If it was meant to elicit facts favourable to the case of the accused, the accused clearly had no case to make because he was under no duty to prove his innocence, and since no case had been made against him he had no evidential burden to prove reasonable doubt in the PW1’s evidence against him. So what was the reason for this kind of cross-examination? Was it aimed at testing the general credibility of PW1. Was that necessary? That was unnecessary in the light of PW1’s evidence-in-chief.

 

The unfortunate situation in this case is that the prosecution led no admissible evidence in exhibit D implicating the appellant in the commission of the crime. Consistent with the evidence in exhibit D, the PW1 has testified in-examination-in-chief in the present proceeding without mentioning the name of the appellant as being present at the scene of crime or mentioning that she heard him quarrel with the deceased or recognized the voice of the appellant as quarrelling with the deceased.

 

The defence has now introduced evidence through PW1 stating that the PW1 recognized the voice of the appellant with others quarrelling with the deceased in the deceased’s bedroom. After this self-incriminating evidence, the defence now seeks to rely on the evidence of PW1 not identifying the appellant in the proceedings in exhibit D to contradict their self incriminating evidence and impeach the veracity of PW1. But the PW1 herein who testified as PW4 in exhibit D was not asked the affirmative and suggestive questions during cross-examination in that proceedings as she was asked in this case. I think that what the defence did was that after it realized that it had on its own for no justifiable reason incriminated itself tried to contradict and discredit the self-incriminating evidence. I do not think it is in the interest of justice to use in this manner a witness’ previous testimony that is reduced in to writing. If the said evidence had been elicited by the prosecution through the witness in examination-in-chief as its case against the appellant, or the PW1 in an independent answer to a question that is not leading, suggestive or affirmative gives such evidence, then the question of contradicting the evidence as prosecution evidence will arise. In that case the employment of a previous testimony that is materially different from such evidence becomes justified. I do not think that such previous testimony that is consistent with the prosecution’s case against the appellant can be employed simply because the defence has incriminated itself. To my mind the use of the previous written statement of a witness can be used only to contradict or discredit the independent evidence against an accused or another party. It cannot be used by a party to contradict or discrete evidence adduced by it. It is trite that in a criminal case the burden is always on the prosecution to prove beyond reasonable doubt the guilt of the accused. The accused who is presumed innocent until he is proven or has pleaded guilty has no duty to prove his innocence. So that even where the evidential burden to prove reasonable doubt on a balance of probabilities by virtue of S. 135(3) and S. 137 of the Evidence Act, 2011 has shifted to the accused, he has a right to remain silent and refuse to say anything.

 

If the accused exercises the right to remain silent, the court is bound not to treat it as an admission of guilt. In that event the case will simply be decided on the basis of the evidence given by the prosecution. The accused is therefore not under any duty to say anything either by himself or elicit evidence through any other witness that will incriminate him. However, where the accused chooses to testify or elicit evidence through other witnesses in defence and thereby introduces self incriminating evidence, nothing in law prevents the prosecution from relying on such evidence to support or prove its case or the court from relying on such evidence to convict the said accused.

 

In any case, the appellant did not appeal against the finding of fact and holding of the trial court relying solely on the said evidence introduced by the defence through PW1, that appellant was identified by voice by PW1 as one of the persons whose voice she heard quarrelling with the deceased in the latter’s bedroom. This unchallenged finding of fact and holding remained binding and final. A party who has not appealed against any finding or decision of a court, cannot competently argue against it. The finding of fact and holding stands rightly or wrongly regardless of the merit of what the trial court might have said on the point. See NWABUEZE V. OBI-OKOYE (supra), ONWUKA V. EDIALA (supra) and OGUNBIYI V. ISHOLA (supra). By failing to challenge the said finding of fact and holding the appellant has accepted it as correct. Having accepted the finding and holding as correct, the effect of the inclusion or exclusion of exhibit D on the trial Court’s judgment is no longer of any moment.
In the light of the foregoing I am inclined to hold that the appellant has not shown that if exhibit D had not been expunged the decision would have been different. It appears to me that if exhibit D had not been expunged it can reasonably be held that the decision would have been the same.

 

I will now consider whether “it was illegal, unconstitutional, unfair and prejudicial to the Appellant in the circumstances of this case for the learned trial judge to heavily rely on the evidence of PW2 to convict him when the PW2’s name, address and statement to the police were not contained in the proofs of evidence as required by law and when he did not testify for the prosecution in the two previous proceedings in the case?

 

This is the second issue in the appellant’s brief of argument. I have carefully read and considered the entire testimony of PW2 and the judgment of the trial court. The testimony of PW2 did not incriminate the appellant in any way. The only part of the testimony of PW2 that mentions the appellant is as follows – “At this point, I heard the deceased asking the 3rd accused person what he had done to warrant them invading him at that time of the night.” This evidence was given in his examination-in-chief. The trial court in its judgment considered if this evidence can be admitted as a dying declaration of the deceased. It held “I, therefore, give a resounding No to the question framed. My finding is that those statements do not amount to dying declarations admissible in this case.”
So the trial court refused to admit this testimony as a dying declaration of the cause of his death under S. 40 of the Evidence Act, 2011. It remained legally inadmissible evidence as hearsay evidence by virtue of S. 37(a) and 38 of the Evidence Act, 2011.

 

In the light of the foregoing, issue No. 2 and the arguments thereon in the appellant’s brief become idle and academic.

 

Let me now consider issue No. 3 of the appellant’s brief which covers the first part of issue No. 2 of the respondent’s brief. Learned Counsel for the appellant commenced the argument of this issue by stating that it is based on grounds 3, 6 and 9 of the amended notice of Appeal. I have earlier held herein struck out ground 6 and 9 of the amended notice of appeal. This ground cannot therefore provide a valid basis for issue No 3 including any argument of that issue. The implication of this situation is that issue No. 3 is now based only grounds 3 and 6 of the amended Notice of Appeal.

 

I have carefully read and considered the arguments of Learned Counsel for the appellant under this issue. The entire argument of Learned Counsel for the appellant under this issue is centered on attacking the general credibility of PW1 except in two or three paragraphs where PW2 is mentioned. The argument was focused on show that PW1 is capable of falsehood on oath so no part of her testimony should be believed. With due respects, I think that his argument show that he has not appreciated that –

1. the PW1 in her extra judicial statements in exhibit D and her testimony in examination-in-chief in the proceedings leading to this appeal did not give any legally admissible evidence incriminating the accused.
2. The only evidence of voice of identification of the appellant as being in the bedroom of the deceased at the material time and quarrelling with the deceased to the hearing of PW1 who recognized his voice thereby was suggested to PW1 by Learned Counsel to the defence during cross-examination. The PW1 answered confirming the suggestion. The evidence was not introduced by the prosecution. It remains the evidence of the defence even though elicited through the cross-examination of the PW1, the prosecutions witness.
3. Since it is the defence that elicited this evidence through their suggestive and leading cross-examination of PW1, it is incongruous for the same defence to contend that the evidence should not be believed because in its opinion PW1 is not credible.
4. The trial court relied solely on this evidence to convict the appellant following its finding of fact of the voice identification of the appellant by the PW1.
5. The appellant did not appeal against this finding of fact and holding, and has thereby accepted the said finding of fact and holding as correct.
6. The failure to appeal against the said finding of fact and holding renders issue No. 3 and the arguments thereon meaningless and idle.

 

I do not think that the question whether the testimony of a witness on a particular issue should be believed or not can be determined only by reference to the general credibility of the witness. The determination of the question should be bases on a consideration of the particular evidence in relation to any other evidence of that witness on the same issue and the evidence, if any of other witness on the same side and the evidence, if any, of the witness of the opposite side. Every human being is capable of telling the truth and telling a lie at one moment or the other. A person with a widely acknowledged reputation for lying can speak the truth sometimes. Even a religious leader can tell lies sometimes. It will not be right and realistic and can cause a serious miscarriage of justice to assume that a reputed liar is incapable of speaking the truth. While his easy inclination to lie and the fact that he has lied severally concerning the facts of the case is a factor to be seriously taken into account in determining the weight to attach to his testimony, it will be wrong to do so with the mindset that he is not likely to speak the truth.

 

In the light of the foregoing, I do not think that it will help the course of justice in this appeal to dwell on the question of whether the PW1 was a credible or believable witness. The relevant question here is whether the trial court was right to have relied on the evidence introduced by the defence through cross examination of PW1 to find as a fact that appellant was identified by voice by PW1. I therefore dismiss issue No. 3 and the arguments therein.
I will now consider whether the finding of the trial court that the defence of alibi did not avail the appellant is correct.

 

Learned Counsel for the appellant has argued under issue No. 4 that it was wrong to have convicted the appellant in spite of his plea of alibi without his extra judicial statement to the police and without any evidence from the investigating police officer.

 

It is obvious that the investigating police officers who investigated this matter did not testify as witnesses at the trial court and the extra judicial statement of the appellant to the police is not tendered in evidence. It is the extra judicial statement that would have shown if the appellant made this plea timeously and at the investigative stage to enable the investigating police officers investigate the alibi. In the proceedings at the trial court, the  extra judicial statements of the appellant were tendered by the prosecution through PW3 as exhibits H and H1 as part of the proceedings in Exhibit F before Hon. Justice Chukwumah Eneh (as he then was). During his final address the Learned Counsel for the appellant urged the trial court to expunge exhibit F along with exhibits G to L for non compliance with S. 34 (1) of the Evidence  Act (now S. 46(1) Evidence Act, 2011). The trial court in its judgment agreed with his submission and expunged exhibits F, G, GI, H, HI, H2, J, JI K and L from the evidence in the proceedings giving rise to this appeal.

 

It is the same defence that argued during the trial proceedings the absence of the extrajudicial statement in the evidence.

 

I do not think that it can do so. The appellant certainly cannot complain of the failure to tender his extra judicial statement. His extra judicial statements, exhibit H, H1, H2 we tendered and admitted in evidence. He got them expunged as evidence from the proceedings. He cannot approbate and reprobate.

 

The trial court considered the consequence of expunging exhibits G to L on the defence of alibi raised by the appellant and his co-accused in their viva voce testimony in court and held that:

“The removal of exhibits G-J from this proceeding, at the instance of the defence, turns out to be an albatross around their defence of alibi. Those exhibits would have shown whether or not they briefed the police on their whereabouts on that day. As it stands, their evidence is totally devoid of any information to the police on where they were on 25/09/1991 for the responsibility of the police to crystallize. That omission, in my considered judgment, is a serious flaw which strikes at the root of that defence.”

 

Learned Counsel for the appellant has attacked this portion of the judgment of the trial court as penalizing the appellant for the failure of the prosecution to successfully tender the appellant’s extra judicial statement. Learned counsel for the appellant pursued this argument further by arguing that:

(i)      the onus is on the prosecution to show that the defence of alibi is not contained in the extra judicial statements and that having expunged them as evidence, the trial court was not in a position to know whether the defence of alibi was raised on them.

(ii)     Having expunged the extra judicial statement, doubt arises as to whether on not the defence of alibi was raised by the appellant before the police during investigation and that such doubt should be resolved in favour of the accused.

(iii)    Therefore a rebuttable presumption that the police did not investigate the plea of alibi inures in favour of the appellant.

 

I do not think that the trial court penalized the appellant in the part of the judgment reproduced above. The trial court merely expressed an opinion as on effect expunging the extra judicial statement will have on the defence of alibi raised by the appellant in his viva voce testimony in examination-in-chief in court. In the view of the trial court if the extra judicial statement had not been expunged, the appellant would have had the benefit of proving that he timeously during the investigation raised his defence of alibi to the police investigating officers. The trial court was perfectly in order to have expressed this opinion considering the content of the expunged exhibit J and J1 and the fact that it was the appellant who objected to its remaining as evidence and thereby had it expunged. It is clear from the submissions of Learned Counsel for the appellant highlighted above that he misdirected himself on who has the duty to show that the appellant informed the police investigating officers during investigation of his alibi, who has the duty to show that the plea is or is not contained in his extra judicial statement, the duty of the prosecution to tender the extra-judicial statement of an accused during trial and the conclusion or inference to be drawn from the absence of the extra judicial statement with regards to whether the plea of alibi was raised by the appellant during investigation. Alibi is a defence in answer to an allegation of commission of a crime. The accused in answer to such an allegation states that he was nowhere at or near the scene of crime, he was rather elsewhere and so could not have committed the crime as it is physically impossible for a human being that he is to be at two different locations at the scene time. See OKON UDOH AKPAN V. THE STATE (1991)5 SCNJ 1 or (1991) 5 SC 1.

 

As the Supreme court held in this case of OKON UDOH AKPAN V. THE STATE (supra) it is settled that although the primary and general onus of proving the guilt of an accused person is all through on the prosecution and never shifts, as the defence of alibi is a matter peculiarly within his knowledge, it was his duty to duly raise it and give such particulars as the prosecution can investigate. The evidential burden of eliciting some evidence in support thereof also lies on him.

Until and unless an accused person duly raised a defence of alibi and gives sufficient particulars of his whereabouts which can be investigated by the police, the prosecution need not assume the duty of investigating or disproving the alibi. As the same court held in OGOALA V. STATE (1991) 3 SC 80 or (1991) 3 SCNJ 61 it is no proper way of raising a defence by alibi for an accused person. See also MUFUTAU AREMU & ANOR V THE STATE (1991) 7 SCNJ 296.
The alibi must be given during the investigation and not during the hearing of evidence in court. See MUFUTAU AREMU V. THE STATE (supra). The duty of the police investigating officers to investigate the claim of alibi arises once it is made with full particulars stating the exact place he was, the exact time he was there, the person or persons with whom he was or who saw him there. As Oputa JSC said in CHRISTOPHER OKOSI V. THE STATE (1989) All NLR 170, “the police are not expected to go on a wild goose chase, in order to investigate an alibi. Any accused person setting up alibi as a defence is also duty bound to give to the police at the earliest opportunity some tangible and useful information relating to the place he was and the persons with whom he also was.”

 

A statement of the accused to the police during investigation explaining that he was not at near the scene of crime but elsewhere at the time of the offence and mentioning the persons with whom he was or who saw him that place is an extra judicial statement. It is usually reduced into writing and signed or thumb impressed by him. Such extra judicial statement included in the summary of evidence and the written statement itself is usually form part of the bundle of documents filed along with the information commencing the criminal case against the accused. The said written extra-judicial statement may or may not be tendered during trial. So who has the duty to tender it? To ensure a fair and transparent criminal process the prosecution should put before the trial court any extra judicial statement made by the accused.

 

Failure to do so especially when the defence asks that it be produced may not only create an impression of withholding relevant evidence but may also give an impression that such material evidence is unfavourable to the case of the prosecution and render the criminal process suspect. Such extra judicial statement, if not confessional can be material to the defence of the accused. It will not be helpful to the course of justice, if evidence that is material to the case of defence and in the custody of the prosecution is not put in evidence to enable the trial court do justice in the case. See FATUI OLAYINKA V. STATE (2007) 9 NWLR (pt. 1040) 561. Be that as it is, the law remains that the evidential burden of eliciting some evidence in support of the plea of alibi the accused had raised during investigation lies on the accused. See OKON UDOH AKPAN V. THE STATE (supra) Part of this evidential burden includes the duty to show that during investigation he informed police of the facts that constitute this plea. The legal duty of the prosecution to prove the guilt of the accused beyond reasonable doubt does not include sharing the evidential burden imposed by S. 135(3) Evidence Act, 2011 on the accused to prove reasonable doubt in the case of the prosecution against him.  The prosecution therefore has no duty in law to share in the evidential burden of the accused to prove the plea of alibi he had raised at the investigation stage. It is only when the accused has successfully discharged his evidential burden that the evidential burden on the prosecution arises to disprove it by showing that the particulars of the plea were investigated and found to be false. Since it is the evidential burden of the accused to elicit evidence to prove the plea he has raised, a fortiori, he has the duty to ensure that his extra judicial statement is tendered in evidence. So that if the prosecution has not tendered it in evidence, the accused can call for it and have it tendered in accordance with law. In our present case, the prosecution tendered the extra judicial statements of the accused. It is the accused who insisted to have it expunged. It is inconceivable that the same defence can now in this court raise arguments that in essence amount to blaming the prosecution for his extra judicial statement not being in evidence. It is wrong to argue that the absence of the extra judicial statement raises doubt as to whether the accused did raise the plea of alibi before the police. The clear result of the absence of such statement in evidence or any other evidence of the plea having been made before the police is that there is no evidence that the appellant raised the plea of alibi at the earliest opportunity, when he was first confronted with the allegation of his complicity in the crime during investigation. In the absence of evidence that the accused discharged his duty to disclose to the police at the earliest opportunity before trial his plea alibi, there will be no basis for holding or presuming that the police had a duty to investigate what is unknown to them.  The police duty to investigate an claim of alibi arises only when the accused raises it unequivocally with sufficient particulars. Once it has been raised and the police investigating officers fail to investigate the claim, then the facts as disclosed by the accused will be taken as established.

 

In the absence of any evidence that the appellant had raised the plea of alibi earlier during investigation, the trial court was right to have held that the defence of alibi which as the evidence shows was being raised for the first time in court, was not proved and failed. The Supreme Court in AREMU & ANOR V. STATE (supra) per Nwokedi JSC held that “Being a matter peculiarly within his knowledge, the accused has a duty to disclose it to the police at the earliest opportunity and before the trial begins for it to be investigated. Proffering a defence of alibi for the first time in the witness box is bad enough, doing so under cross-examination makes it a huge joke, a hoax. There is nothing in it. It is worthless. It becomes more irrelevant when not preferred as a defence during counsel’s address. I cannot readily think of a situation where court of law will discharge and acquit an accused person solely on the defence of alibi proffered by him for the first time from the witness box and under cross-examination.”
The appellant testified as DW2 and gave evidence in examination of chief raising the defence of alibi. As part of his duty to plead and prove that defence he had a duty to show that he informed the police timeously and early enough to afford them time to investigate the alibi. Once he leads that evidence and there is no evidence that his claim of alibi was investigated then his evidence of alibi must be accepted as proof of the alibi. Apart from extra-judicial statement, the appellant had the opportunity to lead such evidence during his testimony in examination in chief by stating that he informed the police in his extra judicial statement which is in their custody. He did not say. Therefore the absence of the extra judicial statement or the failure of the investigating police officers to testify is of no moment. In the absence of such evidence, the reasonable conclusion is that the plea of alibi was raised at this stage to avoid the claim being verified by police investigation such a plea of alibi cannot be credible.

 

The appellant in his evidence in examination-in-chief testified that he attended the burial at Otamu Nkiti with his “older brother, Joseph Ajibo” surprisingly appellant did not call Joseph Ajibo to testify as a witness for the defence to corroborate his testimony on his being away at Otamu Nkiti. The trial court was right to have held that the omission dented the appellant’s defence of alibi. The trial court rightly relied on the Supreme Court decision in ARCHIBONG V. STATE (2006) LPELR 537 in holding that the defence failed. Here the appellant claimed that he was not at the scene of crime on the relevant date and time because he was away at a native doctor’s place where he had taken his sick child for treatment. He said the native doctor was his brother. He failed to call the brother native doctor to corroborate his alibi. The Supreme Court upheld the rejection of his plea of alibi.

 

Finally the voice identification of the appellant by PW1 and PW2 fixed him at the scene of the crime that night thereby neutralizing and defeating his plea of alibi. As Tobi JSC did in DAGAYYA V. STATE (2006) 7 NWLR (pt 980) 637 at 668

“The defence of alibi crumbles the moment the prosecution give superior evidence, that is a more believable evidence that of the accused, by fixing permanently the accused person not only at the scene of the crime, but also in the commission of the crime, in a way that if a photograph was taken at the time, or point of actus reus of the accused, it will clearly show or depict him in ‘romance’ with the crime he is charged with. The matter is as exact as that.”

 

For the above reasons I resolve this issue in favour of the respondent
I will now deal with the last issue, which is issue No. 5 of the appellant’s brief of argument. The question raised by the appellant in this issue is “Whether the learned trial judge was justified in sifting and using excerpts from the extra judicial statements of PW1 (Exhibit E) which were solely tendered for the purpose of contradicting her oral evidence in court in convicting the Appellant?
Let me quickly state that it is the voice identification of the appellant by PW1 that fixed the appellant at the scene of the crime and nothing else. The trial court did not rely on the extrajudicial statements of PW1 to hold that the appellant was among those who were in the bedroom of the deceased at the material time quarrelling with him. This is the centre piece of the case against the appellant. If he was not fixed at the scene of crime by the evidence elicited by the defence through cross-examination of PW1, there would have been no basis to convict him. My decision in respect of issue No.3 applies here with equal force. Since the appellant did not appeal against the trial courts finding of fact and holding a concerning his voice identification by PW1, the sole basis of his conviction, issue No. 5 and the arguments thereon remain idle and meaningless.
I also dismiss issue No 5 and the arguments of same. On the whole, this appeal fails for lack of merit and it is accordingly dismissed. I affirm the decision of the trial court convicting the appellant for murder and sentencing him to death by hanging.

 

 

ABUBAKAR JEGA ABDUL-KADIR, J.C.A.:

I have read the draft of the judgment delivered by Learned brother, EMMANUEL AKOMAYE AGIM, JCA. I agree with his reasoning and conclusions. I also hold that this appeal lacks merit and is accordingly dismissed. I also uphold the decision of the trial court convicting the appellant for murder and sentencing him to death by hanging.

 

MOJEED ADEKUNLE OWOADE, J.C.A.:

I agree