ABUGHOR ABGYULUWA AND OTHERS (APPELLANTS)
THE COMMISSIONER OF POLICE (RESPONDENT)
(1961) All N.L.R. 879
Division: High Court (West)
Date of Judgment: 24th November, 1961
Case Number: Warri Charge No. W/36.CA/61
Before: Quashie-Idun, C. J.
Appeal from magistrate's court against Conviction and Sentence.
The appellants were convicted in the magistrate's court of wilfully and unlawfully destroying 300 rubber plants belonging to one Mayor Atuma. They had, in their evidence, denied having committed the offence; one of them stated that he did not know where Atuma's farm was and that he had never been there. The Magistrate rejected their defence, which he described as an alibi, giving as his reason the fact that the appellants did not call witnesses to substantiate it.
The appellants appealed stating, inter alia, that
"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 first prosecution witness's rubber trees'."
(1) A defence, however stupid, should be considered by the court.
(2) The fact that an accused person does not call a witness to substantiate a defence of alibi is no justification in law for the court not considering his defence.
Appeals allowed: Convictions quashed.
APPEAL from magistrate's court.
Ogbobine for the Appellants.
Ogwuazor for the Respondent.
Cases referred to:-
R. v. Barimah, 11 W.A.C.A. 49.
King v. Emilio Rufino, 7 Crim. App. R. 47; (1911) 76 J.P. 49.
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 first 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 first 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 second and third 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. at 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 at 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 first 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.