3PLR – ABUGHOR ABGYULUWA AND OTHERS V. THE COMMISSIONER OF POLICE

POLICY, PRACTICE AND PUBLISHING,  LAW REPORTS – 3PLR

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ABUGHOR ABGYULUWA AND OTHERS

V.

THE COMMISSIONER OF POLICE

HIGH COURT (WEST)

W/36.CA/61

24TH NOVEMBER, 1961

3PLR/1961/1 (HC-W)

OTHER CITATIONS

BEFORE:

QUASHIE-IDUN, C.I.

MAIN ISSUES

CRIMINAL LAW: Wilful and criminal destruction of property – defence of alibi – Need to consider the defence of accused person no matter how untenable it looks –

PRACTICE AND PROCEDURE – EVIDENCE: Trial Court – effect of not considering the defence of accused persons – Effect of failure of the accused to call witness to substantiate defence of alibi

MAIN JUDGMENT

QUASHIE-IDUN, C.J.:-

The appellants were convicted by the Magistrate, Sapele (Obileye), on a charge alleging that they on the 29th October, 1960, at Otefe village wilfully and unlawfully destroyed 300 rubber plants the property of one Mayor Atuma.

Against their convictions they have appealed on a number of grounds. Some of the grounds were abandoned. The only ground worth considering is the following:

The learned trial Magistrate misdirected himself in law when he held as follows ‘the defence of absolute denial does not impress me. It will be noted that each accused denied being present at the scene of the incident at the material time, but none called witnesses to substantiate the alibi. I must therefore reject the defence that the accused were not present at the scene and that they did not destroy 1st prosecution witness’s rubber trees’.

The evidence against the appellants before the trial Court was that the appellants had destroyed a quantity of rubber plants in the plantation of the complainant. Each of the appellants denied having committed the offence. The 1st appellant stated in his evidence that he did not know where the complainant’s farm was situated and that he had never been there. The 2nd and 3rd appellants also denied having damaged complainant’s rubber trees.

The learned trial Magistrate rejected the evidence of each of the appellants because they did not call any witnesses to substantiate the defence which he described as alibi. The reason given by the learned trial Magistrate in rejecting the defence put up by the appellants clearly shows that he did not consider the defence. It has been held in R. v. Barimah, 11 W.A.C.A. page 49 that a defence however stupid, should be considered by the Court. The fact that none of the appellants called a witness to substantiate his defence which the Court regarded as alibi is no justification in law for not considering the defence. In the case of the King v. Emilio Rufino, 7 Criminal Appeal Reports page 47, the trial Judge expressed himself forcibly that the defence of alibi put up had no shadow of an alibi from any possible point of view. It was held by the Court of Criminal Appeal that it was a misdirection for the Judge to have ruled it out.

Apart from the 1st appellant who said he did not even know the complainant’s farm, all the appellants denied having damaged the rubber plants. None of the appellants said where he was at the material time when they were alleged to have committed the offence. Neither did they say that they were with other persons. It was therefore wrong on the part of the learned trial Magistrate to have held that each of the appellants had failed to substantiate the defence put up by him.

For the reasons stated, I think that this appeal should be allowed. The convictions are accordingly set aside and the appellants are acquitted and discharged. Fines paid to be refunded.

Appeals allowed: Convictions quashed.

Ogbobine for the Appellants.

Ogwuazor for the Respondent.