➥ CASE SUMMARY OF:
JIMOH ABDULLAHI & Ors. v THE STATE (1995) – CA
by “PipAr” B.C. Chima
Court of Appeal – CA/K/180/C/94
➥ JUDGEMENT DELIVERED ON:
Tuesday, 11th July. 1995
➥ AREA(S) OF LAW
➥ NOTABLE DICTA
⦿ JUDGEMENT WRITING BY A JUDGE IS A MATTER OF STYLE BUT MUST BEAR ESSENTIAL ELEMENTS
I accept the view that writing of a judgment is an art. I also accept the view that in carrying out this art, each Judge is free to follow his own style to produce a good product. But it is very essential that a Judge must show a clear understanding of the facts in that case, the issues involved, the law applicable and from all these to draw the right conclusions and make a correct finding on the credible evidence before him. — Umaru Abdullai, J.C.A.
⦿ FAILURE TO INVESTIGATE ALIBI BY POLICE MAY CREATE DOUBT AGAINST THE PROSECUTION — WHEN ALIBI IS RAISED
I think the law is fairly settled in this field. It is the law that where an accused person has disclosed an alibi before his trial and the prosecution has taken no available steps to verity or disprove it, the court may hold that the prosecution has failed to prove its case beyond reasonable doubt. This is because failure by the police to investigate and check the reliability of an alibi properly and timeously put up by an accused person, would raise reasonable doubt in the mind of the court and must in an appropriate case lead to the quashing of a conviction imposed in disregard of this requirement see State v. Obinga (1965) NMLR 172: Ozaki v.. State (1990) 1 NWLR (Pt.124) 92: Onafowokan v. Stare (1987) 3 NWLR (Pt.611 538). Where however an accused person did not raise the defence of alibi before his trial, but in his evidence at the trial, the prosecution would naturally not be obliged at that late stage of the proceedings to investigate such a plea and would be entitled to rely on the evidence of its witnesses to disprove the alibi. Where the prosecution adduces sufficient, accepted and credible evidence to fix the accused at the scene of crime at the material time, the plea of alibi would logically be demolished. Even where the prosecution failed to investigate an alibi which does not necessary become fatal in every case, the trial Judge has a duty to consider the credibility of the evidence adduced by the prosecution vis-a-vis the alibi. See Fatoyinbo v.A.G. Western Nigeria (1966) NMLR4; Ntam v. State (1968i NMLR 86: Njovens v. State (1973) 1 NMLR 331. see also the recent case of Onyegbu v. The State (1995) 4 NWLR (Pt.391) 510. — Umaru Abdullai, JCA.
⦿ WHERE EVIDENCE IS CONTRADICTING, ALL SHOULD BE REJECTED
It is well settled that where prosecution witnesses have given conflicting conversions of material facts in issue that the trial Judge before whom such evidence as led must make specific findings on the point and in so doing must give reasons rejecting one version and accepting the other. Unless this is done it will be very unsafe for the court to rely on any of the incidence before it. The proper course in the circumstance is to reject both versions of the evidence as unreliable and unsafe for the purpose of determining the material issue before the court. See: Onubogu v. The State (1974) 9 S.C. 1; Albert Ikem v. The State (1985) WLR (Pt. 2) 378. — Opene JCA.
➥ LEAD JUDGEMENT DELIVERED BY:
Umaru Abdullai, J.C.A.
⦿ FOR THE APPELLANT
Yusuf O. AIli Esq.
⦿ FOR THE RESPONDENT
M.A. Sanni. Attorney-General. Kwara State.
➥ CASE HISTORY
Briefly, the facts of the case are that on 21st day of October, 1988 one Abas Akofe’s dead body was found by the road side. The matter was reported to the Police and investigations got underway. In trying to find out the killers of Abas Akofe, the clan Chief of the village summoned a clan meeting on the day of the incident, but no one mentioned any name as being responsible for the killing at the meeting. Two people who were later called by the prosecution as eye witnesses to the killing attended that meeting, but they did not mention anybody’s name at the meeting. The two people gave evidence as P.W.2 and P.W.3 respectively. Information emerged later on with P.W.2 and P.W.3 as the source that it was the appellants who killed Abas Akofe and they were accordingly arrested and H charged for the murder. The prosecution called 8 witnesses, while each of the 4 appellants gave evidence on Oath and called defence witnesses. The 3rd and 4th appellants set up a defence it!’ alibi at the onset of the investigation level by the police, but the alibi was not investigated by the police.
Be that as it may at the end of the day, in a considered judgment, the learned trial Judge found all the four appellants guilty of the charge and convicted them accordingly.
Appellants have appealed to this Court.
➥ ISSUE(S) & RESOLUTION
I. Whether the prosecution had produced credible and cogent evidence before the trial court to meet the standard of proof beyond reasonable doubt to justify the finding of the trial court, particularly having regard to the inconsistencies and material contradictions in the testimonies of the prosecution witnesses, some of which are irreconcilable?
RULING: IN APPELLANT’S FAVOUR.
“A perusal of the record of proceedings clearly shows that there are many contradictions in the case for the prosecution. The star witnesses in this case are P.W. 1. P.W.2 and P.W.3. P.W.8. the brother of the deceased said that he found deep cuts on the head of the deceased and it was P.W.1 that identified the corpse to P.W.8, the medical doctor who performed the post mortem examination on the corpse but P.W.8 and P.W.6, the police sergeant to whom the report was made said that there was only the deep cut on the head of the deceased.”
“P.W.2 and P.W.3 said that they were not arrested in connection with the offence but P.W.6 said that P.W.2 and P.W.3 were arrested in connection with the offence.”
“P.W.2 and P.W.3 stated that it was themselves that reported the incident at Omu-Aran Divisional Police Headquarters on 22.10.88 while P.W.6 said that the report was made by both P.W. and corporal Segun Adelola on 21.10.88. I have just highlighted those few contradictions among others who had been imply stated in the lead judgment.”
“Considering the conflicting and contradictory evidence adduced by the prosecution on material issues as highlighted above, I agree with both the learned counsel for the appellants and the respondent that the learned trial Judge was wrong to hold that the prosecution had proved its case beyond reasonable doubt against the appellants. In the circumstances the conviction of the appellants cannot be F allowed to stand.”
II. Whether the learned trial Judge was right to have reviewed, accepted, believed and acted on the evidence of the prosecution witnesses in particular the star witnesses P.W.2 and P.W. 3; to find the appellants guilty of the serious offence with which they were charged before he attempted to review the defence of the appellants and whether the approach did not lead to a grave miscarriage of justice against the appellants and a truncation of their rights to equal hearing with the prosecution?
RULING: IN APPELLANT’S FAVOUR.
“In this case, it has been clearly shown from the passage of the judgement quoted above that, the learned trial Judge made some serious findings in the middle of his review of the case for the prosecution. At that stage, the learned Judge did not touch the defence evidence at all. It is also clear that as he went along considering the remaining part of the evidence of the prosecution particularly, evidence of P.W.6 and P.W.8 as opposed to the evidence of P.W.2 and P.W.3 on which he based his serious findings, the learned trial Judge had a lot of difficulties in having to pick and choose between the evidence of these two sets of witnesses which resulted into his disbelieving a portion of the evidence given by P.W.I, 1 P.W.2 and P.W.3 after having already made a finding believing the evidence of the same witnesses. Having taken this position, there is tendency that the learned trial Judge would not bother to give adequate consideration to the defence evidence, which would if given adequate consideration alter the finding already made. In my view, this would undoubtedly occasion a miscarriage of justice. It is my view therefore, that the approach adopted by the learned trial Judge in this case is erroneous and had resulted in a miscarriage of justice.”
III. Whether, have (sic) regard to the failure of the police to investigate at all the alibi set up by the 3rd and 4th appellants, the trial Judge was right to have gone ahead to rely on the unreliable testimonies of P.W.2 and P.W.3 to find the alibi not proved when the alibi was not improbable or exaggerated, and same were set up at the earliest opportunity by the appellants.
RULING: IN APPELLANT’S FAVOUR.
“It is my view that the learned trial Judge did not discharge his duty to consider adequately the credibility of the evidence adduced by the prosecution, which is the evidence of P.W.2 and P.W.3 vis-a-vis the alibi raised by the 3rd and 4th appellants. Particularly that the learned trial Judge was himself in doubt as to the veracity of the evidence of those two witnesses, to their claim that they were eye witnesses to the commission of the crime, because he disbelieved their evidence when he found it in conflict with the evidence of P.W.6 and P.W.8 on material Issues, that is the injuries inflicted on the body of the deceased. If the learned trial Judge had discharged his duty properly, he would not have dismissed the alibi with a wave of a hand, the way he did. In the circumstances, I hold the view that the Prosecution had failed to prove its case beyond reasonable doubt and the learned Trial Judge made an error to hold that the prosecution had proved its case beyond reasonable doubt.”
“On the whole, the appeal has merit and it succeeds. The appeal is allowed. The decision of the lower court is set aside. The convictions and sentences of death imposed on the appellants is according quashed. The appellants are discharged and acquitted.”
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
Section 269(1) of the Criminal Procedure Code “Every judgment shall contain the point or points for determination, the decision thereon and the reasons for the decision and shall be dated and signed or sealed by the court in open court at the time of pronouncing it.”
➥ REFERENCED (CASE)
⦿ STAGES IN JUDGEMENT WRITING AS STATED BY OPUTA JSC
Isaac Stephen v. The State (1986) 5 NWLR (Pt.46j 978 in which Oputa J.S.C. set out the stages to be followed in writing a good judgment, particularly in criminal cases. The four stages outlined by the learned Justice are as follows:- “Stage 1: If the plea of the accused is guilty no issues arise and no evidence is required. The trial court can proceed straight to judgment. But if the plea is not guilty (as it is bound to be in murder trials) then all the constituent elements of the offence charged are put in issue. And the onus lies heavily on the prosecution to prove the offence charged beyond reasonable doubt. Stage 2: Issues are thus joined, evidence is led in proof or disproof of each issue. At this stage, the duty of the trial court is merely to record the evidence led and observe the demeanor of the witnesses called by either party. Stage 3: This is the most important and crucial stage as it deals with the perception of facts, evaluation of facts belief or disbelief of witnesses and findings and conclusions based on the evidence accepted by the trial court. At this stage, the trial court will briefly summarize the case of either party. This does not mean producing verbatim the evidence of the prosecution witnesses and of defence witnesses one by one but it does mean using such evidence to tell a coherent and connected story. Having done this, the trial court will then decide which story to believe. Here it is important to emphasize that the over worked expressions “I believe” or “I do not believe” have no extrinsic magic power or potency. There is nothing wrong in believing one side and disbelieving the other if either the belief or disbelief is in consonance with the natural drift of the evidence and the probabilities which on the totality of what evidence it is natural to expect. Stage 4: Having exercised his prerogative to believe or disbelieve having made his findings of fact, the trial court will then draw the necessary inference or conclusion from the facts, would then discuss the applicable law against the background of the facts as found. Any judge that follows the above pattern or something similar to it will be of invaluable help to the Courts of Appeal as well as to parties to the appeal. One would only wish that our trial courts do approach the difficult task of writing judgments in some methodical and orderly fashion.”
➥ REFERENCED (OTHERS)