WASARI UMANI (APPELLANT)
v.
THE STATE (RESPONDENT)
(1988) All N.L.R. 145
Division: Supreme Court Of Nigeria
Date of Judgment: February, 5, 1988
Case Number: (SC. 177/1986)
Before: Nnamani, Uwais, Belgore, Wali, Craig JJ.S.C..
The appellant and 5 other persons were charged in the High Court of Kano State with Culpable homicide punishable with death, an offence punishable under section 221 (b) of the Penal code.
The whole incident arose from the turbaning ceremony of the new village head on the 15th of January 1983. Two factions appear to have arisen in the village made up of supporters of the old village head and the supporters of the new village head. According to the testimony of the 3 principal witnesses for the prosecution, i.e. PW1, PW2, and PW3, they saw the 6 accused persons (the 3rd accused; was at large and his name was struck out at the end of the trial) enter the compound of the deceased. While the deceased was sitting in front of his room in the compound these accused persons started beating him with sticks, knife, sword and axe. The beating continued until the deceased was unconscious. When the police later arrived the second prosecution witness assisted them in carrying the deceased into a vehicle that conveyed him to a hospital at Jahun where he later died. From the medical report Exhibit A, the cause of death was said to be due to severe head injury causing coma.
At the close of evidence and addresses of counsel the trial judge upheld the defence of alibi raised by 1st, 2nd, 5th, 6th and 7th accused persons and discharged them. He rejected the defence of alibi raised by the appellant herein, which defence was not raised in his statement to the police but only in his testimony in court. He dubbed it as an after-thought.
The appellant appealed to the Court of Appeal which dismissed his appeal.
He therefore appealed further to the Supreme Court.
HELD:
(1) While I agree that the learned trial Judge was clearly under a duty to consider all possible defences available to the defence even if they were not raised by the defence, I can see nothing suffered by the appellant by his failure to consider those two defences (provocation and self-defence). There was nothing to sustain them. The Court of Appeal, however considered those two defences and arrived at the same conclusion which I reached although for different reasons.
(2) Because of the burden on the prosecution to prove the guilt of the accused person beyond reasonable doubt, once a defence of alibi is set up, there is a duty on the prosecution to investigate it once it was made known to it at the earliest opportunity. A court of trial faced with evidence tending to show that the accused person was somewhere else at the time of commission of the crime is under a duty to test such evidence against the evidence led by the prosecution in rebuttal, and if on the whole the court is in doubt as to the guilt of the accused such accused must enjoy the benefit of such doubt and be acquitted.
(3) The evidence on which the learned trial Judge has based his conclusion on the guilt of the 4th accused (appellant) is the testimony of the PW1, PW2, PW3, testimony which in discharging 5 accused persons he has at the very least cast so much doubt. I find it extremely hard to remove from my own mind doubt as to the guilt of the appellant. It has to be remembered that apart from the testimony of PW1, PW2 and PW3, there is no other evidence linking the appellant with the crime.
(4) From the earliest times, the principle has been, and indeed it is now trite, that the burden is on the prosecution to prove the guilt of the accused person beyond reasonable doubt. If there is any doubt whatsoever, the benefit of it must be given to the accused person and he must be discharged and acquitted. Such a doubt exists in this case and I shall resolve it in favour of the appellant.
Appeal allowed.
Uwais, J.S.C. (dissenting) "It does not always follow that once the prosecution failed to investigate an albi, such failure is fatal to the case of prosecution. The trial judge has a duty, even in the absence of investigation, to consider the credibility of the evidence adduced by the prosecution vis-a-vis the alibi. In the present case there is already the testimonies of PW1, PW2, PW3, which showed that all the accused persons including the appellant were present at the scene of crime and that they participated in the commission. The evidence of those prosecution witnesses could have been properly used in testing the defence of alibi set by the accused persons discharged. This however was not done by the trial judge; instead he said he believed the evidence of the discharged accused persons.
There is therefore a valid ground on which the belief or finding of the learned trial Judge could be interfered with."
Graig, J.S.C. (also dissenting) "I have read the judgment of my learned brother Uwais, J.S.C. and I agree with his views that possibly if the trial judge had made proper use of the evidence of the eye witnesses who positively saw the accused persons at close range at the scene of the crime, he probably would have convicted them."
V. C. O. Achikeh Acting Director-General of legal Aid for the Appellant
A. L. Yakub Solicitor-General Kano state (with him Mrs P.A Mahmoud, Director and Chief Legal Draughtsman for the Respondent
Cases referred to:
(1) Akile Gachi & ors. v. The State (1965) NMLR333
(2) Lawrence Ogbodi Odidika v. The State (1977) 2 S.C 21, 23-24
(3) Obiode & ors v. The State (1970) All NLR 35 at 40
(4) Obinga & ors v. The Police (1965) NWLR 172
(5) Okonji v. The State (1987) 1 NWLR659
(6) Oriese Yanor & ors. v. The State (1965) NMLR 337; (1965) 1 NCNLR 199
(7) Patrick Njovens & ors v. The State (1973) NMLR 331
(8) R. v. Ani Nwokafor & ors (1944) 10 WACA 5
(9) R. v. Harris (1977) 20 C. App. R. 148, 149
(10) R. v. Mohammed Bada & anor (1944) 10 WACA 249
(11) The State v. Usor (1972) NMLR 211
(12) Woolmingtion v. D.P.P. (1935) AC 426, 481
Statute referred to:-
(1) Penal Code
Nnamani, JSC. The appellant was the fourth person in charge No. K/49C/84 in the High Court of Kano State. The charge read as follows:-
"That you Alhaji Dantofa, Hassan Butsatsa Kanye, Kari Galadima Wasari Umani, Mohammadu Amnur Dodo, Jata Barde and Manuwa Sule on or about the 15th day of January, 1983 at Gavando village in Jahun Local Government Area with in the Kano Judicial Division did commit culpable homicide punishable with death in that you caused the death of one Abdul Aziz Dantakake by doing an act to wit: beating him with sticks and iron with the knowledge that his death would he the probable consequence of your acts and thereby committed an offence punishable under Section 221(b) of the Penal Code"
It would appear that the whole incident arose from the turbaning ceremony of the new village head on 15th January, 1983. Two factions appear to have arisen in the village made up of supporters of the old village head and supporters of the new village head. According to the testimony of the 3 principal witnesses for the prosecution, i.e. PW1, PW2, PW3, they saw the 6 accused persons (the 3rd Accused was at large and his name was struck out at the end of the trial) enter the compound of the deceased. While the deceased was sitting in front of his room in the compound these accused persons started beating him with sticks, knife, sword and axe. The beating continued until the deceased was unconscious, When the police later arrived the second prosecution witness assisted them in carrying the deceased into a vehicle that conveyed him to a hospital at Jahun where he later died. From the medical report Exhibit A, the cause of death was said to be due to severe head injury causing coma. The injuries were explained by the doctor as "big lacerated wound in the left side of the scalp, incised wound below right side of the chin about two centimetres long and penetrating deep into the floor of the mouth. Lacerated wound on the left ear-lobe."
The prosecution also tendered as exhibits C-CI a stick, axe and one long knife said to be recovered at the scene of crime. They were said to have been recovered in the house of the deceased. In their defence all the accused persons raised a defence of alibi although as I shall show later in this judgment, the appellant herein raised that defence only during the trial. It is also pertinent to mention that the defence witness I testified to the effect that he was present at the turbaning ceremony of the new village head on 15th January, 1983. He claimed that when the new village head's entourage was coming back they met Abdul Aziz, the deceased and one Kojo holding a stick and an axe respectively. When according to him, PW2 said anybody entering Garado village should be killed, he removed the turban of the new village head, took him to one of the class rooms in the school and locked him there. By the time he returned from lodging a report at the Jahun Police Station the clash had already taken place. According to him the clash took place at the premises of the primary school.
At the close of evidence and addresses of counsel, the learned trial Judge, Fernandez, J. held that the disturbance started somewhere but ended in the house of the deceased. The learned trial Judge upheld the defence of alibi raised by the 1st, 2nd, 5th, 6th and 7th Accused persons and discharged them. He rejected the defence of alibi raised by the appellant herein, which defence was not raised in his statement to the Police but only in his testimony in Court. He dubbed it an afterthought.
The appellant appealed to the Court of Appeal which on the 26th March, 1986 dismissed his appeal. He has now appealed to this Court. Originally, 2 grounds of appeal were filed. During hearing in this Court, however, learned Acting Director-General of Legal Aid, Mr Achikeh who appeared for the appellant abandoned ground one of the original grounds and argued, with leave of this Court, two additional grounds of appeal which he filed. All the grounds complained of the evaluation of evidence by the two lower courts as well as on the Court of Appeal's treatment of alleged defences of self-defence and provocation, and conflicts or contradiction in the evidence of the prosecution witnesses. In his brief of argument Mr Achikeh listed 3 issues for determination. These are:-
"(1) Whether the evidence on the records was not enough for the Court of Appeal to hold that the deceased sustained the injuries from which he died at the place where his group attacked the appellant's group i.e. near the primary school.
(2) Whether the evidence on the records was not enough to raise some doubts about the place where the deceased sustained the injuries from which he died.
(3) Whether the fact that the accused/appellant lied at the trial justified his being denied the defences of self defence and provocation by the trial court and the Court of Appeal."
In his submissions to this Court in amplification of his brief of argument, Mr Achikeh referred to the testimony of the first defence witness to the effect that the fight took place in the school not in the house of the deceased. He submitted that there was only one fight between the supporters and opponents of the new village head and that that fight was in the primary school. During that fight, he further submitted, the deceased and PW2 were present. He also referred to the testimony of PW3 to the effect that it was the PW2 and PW4 who carried the deceased home. After referring to some discrepancies in the evidence of prosecution witnesses, he submitted that the statement of the appellant, Exhibit B4-B5, was not given due consideration by the learned trial Judge and the Court of Appeal. Finally, he submitted that the fact that the learned trial Judge discharged 5 of the accused persons meant that he did not believe PW1, PW2 and PW3, the principal witnesses for the prosecution.
In her reply also in amplification of the respondent's brief, learned Counsel to the respondent, Mrs Mahmoud, submitted that the evidence adduced was properly considered by the trial Court and the Court of Appeal. As to the evidence of DW1, she said that the learned trial Judge was right in not considering it specifically as that witness was not present when the fight actually took place. In reply to the appellant's counsel's submission that the discharge of the other accused persons weakened the case of the prosecution against the appellant, she relied on the case of Obiode & Ors. vs. The State (1970) 1. All N.L.R.35 at 40. She submitted that if the discharge of the accused persons was on a technicality (non-investigation of their defence of alibi) as it was, then it did not affect the belief of the evidence of PW1, PW2 and PW3 by the learned trial Judge. She conceded, however, that trial judge ought to have tested the alibi set up by the discharged accused persons.
With all respect, I think the real issue which arises for consideration in this appeal is the effect, if any, of the discharge of the other accused persons on the evidence of the principal witnesses for the prosecution-PW1, PW2, PW3-which was the evidence on which the appellant was convicted. Put more clearly, the learned trial Judge having accepted, against the positive testimony of PW1, PW2, PW3 that they saw all 6 accused persons attack the deceased in his house, the defence of alibi set up by the 5 accused persons who he therefore discharged, could one rely on the evidence of identification by the same principal prosecution witnesses to convict the appellant or was there a doubt which should ensure to the benefit of the appellant?
Before coming to this issue, perhaps I ought to deal with the other issues which I regard as peripheral and which were raised by Mr Achikeh. As to the venue of the fight, I am inclined to agree with the conclusion of learned trial Judge. He said on this-
"From what I have on record (sic) it appears to me that the disturbance started somewhere but ended in the house of the deceased. This is because the 2nd, P.W. and the 3rd P.W. were already informed by some boys that there was a fight going on"
The story of the PW1, PW2, PW3 which suggested that the accused persons broke the fence of the deceased's house and attacked him seemed unnatural as they never specifically mentioned that anything had happened any where else between the parties. On the other hand too one could not accept the whole testimony of DW1 who claimed that the fight started and ended at the primary school. If one did, what would one make of Exhibit C-C1 which the investigating police officer claimed were collected at the scene of crime which he said was the deceased's house. This evidence which was believed by the learned trial Judge and not disturbed by the Court of Appeal, ought not to be disturbed in this Court. Mr Achikeh also made heavy weather of the fact that the PW2, said he was the only person around at the time of the incident and yet PW1 and PW3 claimed too to be eye witnesses. Having regard to the nature of the incident which certainly could induce fear and did induce fear, was it not possible that each eye witness would think he or she was the only person around? Each of the 3 witnesses was observing the incident from the safety of his own house; infact PW2 said his wife insisted that he must not go out.
As for the defences of provocation and self defence which Mr Achikeh contended ought to have been considered, I am of the view that there is no evidence on which the defences could have rested. Evidence tending to raise such defences can only be found in the testimonies of the appellant and the DW1. In his testimony which I agree the learned trial Judge never specifically considered nor rejected, the DW1 merely said that there was an incident at the primary school premises as the new village head's entourage was approaching. He said that the deceased was holding a stick. He admitted however that the fight had ended before he got back from the Jahun Police Station where he went to lodge a report. There is therefore nothing from his evidence from which one can deduce what part, if any, the deceased played in the fight as to consider possible defences of self-defence and provocation.
As for the appellant, in his statement to the Police which was received in evidence as Exhibits B4-B5, he said in effect that there was a fight between the supporters of the new village head and the old one and that he was one of the supporters of the new one.
He claimed that he was beaten. In part the statement was in these terms:-
"On Saturday the 15/1/83 at about 1600 hrs we the supporters of the newly elected village head of Garado Mallam Sale Galadima were escorting him from Nahuche village into Garado ...
As we were almost entering the village at the school ground, the supporters of the old village head were... They told us not to enter the village with the new village head Sale Galadima. The people were holding sticks and I grab Alhaji Yusufu Na Dabo the man I know and I also saw following people ...
The supporters of the old village head attacked us first with their sticks and we the supporters of the new village head retaliated and we started fighting. I was beaten so well that I became unconscious during the fight. After the fight I later understood that one person died and the other died in the hospital ...
Those that lost their lives in the fight were (1) Ahmadu Marshal and (2) Abdul Azizu ..."
In his testimony in Court the appellant completely changed his story. Although he admitted that there was indeed a fight between the supporters of the new and past village head, he claimed that he was neither at the installation ceremony of the new village head nor was he at the fight.
He said he was in his farm and it was only when he was returning from the farm that some one hit him. He did not see the person. There was thus a clear conflict between the appellant's statement to the Police and his testimony in Court. That is not evidence from which possible defences of provocation and self defence could be considered, for it is well settled that where such a conflict as occurred here exists, the learned Judge can ignore both the statement to the Police and the testimony in Court. There is hardly any probative value in such statement or testimony. See The State v. Usor (1972) N.M.L.R.211; R. v. Harris (1977) 20 Cr App R 148, 149. In the recent case of Oladejo v. State (1987) 3 N,W.L. pt.61 364 at 427 this Court dealt with this matter in greater detail. There I said as follows:-
"Contrary to the conclusion of the learned trial Judge, the law is rather that where a witness (here an accused person) makes a statement which is inconsistent with his testimony such testimony is to be treated as unreliable while the statement is not regarded as evidence upon which a court can act" See pp. 427-428.
While I agree that the learned trial Judge was clearly under a duty to consider all possible defences available to the defence even if they were not raised by the defence, I can see nothing suffered by the appellant by his failure to consider those two defences (provocation and self-defence). There was nothing to sustain them. The Court of Appeal, however, considered those two defences and arrived at the same conclusion which I reached although for different reasons. As Maidama, J.C.A. said at p.51 of the record-
"If it was correct that he (i.e. the appellant) was among the supporters of the new village head at the time they were attacked by the supporters of the old village head, then the defences of self defence and provocation will avail him depending on the circumstances of the case. However, at the trial, the appellant gave a different story and tried to set up an alibi by stating that he was neither at the installation ceremony nor was he present at the time the fight started. His defence of alibi was not accepted by the learned trial Judge. This is because the evidence of PW1, PW2, PW3, which was accepted by the learned trial Judge showed that the appellant and others quite independently of the fight which took place elsewhere went to the house of the deceased and beat him to death. Even if the fight which took place elsewhere was provoked by the supporters of the old village head, that provocative act did not flow from the deceased to justify his being killed by the gang which entered his compound at the material time"
Now to the issue of Alibi. An alibi means nothing more than "elsewhere" i.e. that the accused person was some where also at the time of the crime. It has been settled that since the burden of proving the guilt of an accused person beyond reasonable doubt lies on the prosecution and does not shift, once the defence sets up an alibi, it is for the prosecution to lead evidence to disprove it. But the evidential burden of proof lies on the accused person who sets up such a defence. This burden is no more than a duty on the accused person to adduce evidence which would tend to show that he was somewhere else other than where the prosecution alleges he committed the crime. Akile Gachi and Ors v. The State (1965) N.M.L.R. 333; Oriese Yanor and Ors v. The State (1965) N.M.L.R. 337; (1965) 1 All N.L.R. 199; Lawrence Ogbodi Odidika v. The State (1977) 2 S.C.21, 23-24. See also Patrick Njovens and Ors v. The State (1973) N.M.L.R. 331. Because of the burden on the prosecution to prove the guilt of the accused person beyond reasonable doubt, once a defence of alibi is set up there is a duty on the prosecution to investigate it once it was made known to it at the earliest opportunity See Obinga and Ors vs. Police (1965) N.M.L.R.172. A court of trial faced with evidence tending to show that the accused person was somewhere else at the time of the commission of the crime is under a duty to test such evidence against the evidence led by the prosecution in rebuttal, and if on the whole the Court is in doubt as to the guilt of the accused such accused must enjoy the benefit of such doubt and be acquitted See Yanor's case supra. In that case Idigbe, J.S.C. at page 342 said:-
"While the onus is on the prosecution to prove the charge against an accused the latter has, however, the duty of bringing the evidence on which he relies for his defence of alibi, when such evidence has been adduced the Court should consider it in the light of the evidence adduced by the prosecution in support of the charge against the accused and if in the end the Court is unable to reach a decision on the question whether the evidence in support of the case is stronger than that produced in support of the alibi, the accused must be acquitted."
It is against the background of these principles of law that the decision of the learned trial Judge must be considered. As mentioned earlier, all the accused persons raised a defence of alibi, the appellant's albeit belatedly. While the 1st, 2nd, 5th, 6th and 7th accused persons raised this defence in their statements to the Police which they adopted in support of their defence at the trial, the appellant raised no alibi in his statement to the Police. His defence of alibi was raised in the course of his testimony. The learned trial Judge, as I think he was entitled to do, rejected it in very scathing terms. I shall return to this later.
It might be instructive to examine the nature of the defence of alibi put up by the other accused persons. In his statement to the Police which he adopted as part of his defence, the first accused person said in Exhibit B-B1,-
"I could remember that about five (5) months ago I was at Chadi Republic working for money and I remain there for two (2) month (Sic). From there I went to Ogbomosho Oyo State and stay there for three (3) month (Sic). Then one Semhodi Genu Hardo Tohuwa village came met me at Ogbomosho and told me that some people fought at Garado village"
The other statements are in the same vague terms. Those statements raising this defence of alibi were not investigated by the prosecution as they were obliged to do. Against this defence of alibi, however, was the positive and unequivocal evidence of PW1, PW2, PW3, identifying the accused persons as the persons who entered the deceased's compound and beat him to death. The evidence of the PW2 in this direction is very instructive; the witness said identifying the accused persons-
"One was holding a (sic) axe, the other with a knife and another one with a sword. The axe belongs to 4th accused. The stick belong (sic) to 5th accused. The sword belongs to 1st accused. The accused broke the fence and entered the house ...
They beat the deceased until he was unconscious I was standing in front of my room looking at them. The 1st accused saw me standing threw a wooden postal (pestle?) which fell on my right hand broke my wrist. My house is opposite the house of the deceased" (Italics mine)
The learned trial Judge did not, as he ought to have done, consider this positive evidence of identification against the defence of alibi raised before deciding whether any doubt existed which should ensure to the benefit of the accused persons. He was only concerned with the failure of the prosecution to investigate an alibi which was raised by the 1st, 2nd, 5th, 6th and 7th accused persons at the earliest opportunity. As he put it,-
"the statement made by the accused person i.e. 1st, 2nd, 5th, 6th and 7th were not disproved by the prosecution and to this end I am bound to believe their statements and to hold that they were not around the scene of crime at the time of the incident...
He continued-
"In respect of the 1st, 2nd, 5th, 6th and 7th accused. I am of the view, having regard to their alibi which was not disproved, that the prosecution has failed to discharge the onus placed on it and they are accordingly discharged"
The learned trail Judge believed the statements of the accused persons without testing them against the positive evidence of PW1, PW2 and PW3 set down above. To that extent there is no doubt in my mind that he erred in law. Those accused persons ought not to have been discharged. Luckily for them, however, their case is not before this Court there being no appeal against their discharge. What is therefore, in issue is whether these errors do in any way affect the case of the appellant. The use of the word believe in the passage set down above does introduce problems. It might have been better for the learned trail Judge to give the benefit of any doubt that arose from the non-investigation of the accused persons' statements to them rather than talk of "believe". If he believed the 1st Accused that he was in Chad Republic during the incident and in effect disbelieved P.L.2 who so positively identified him as I have shown above, ought he to believe the same PW2 who said the 4th accused person (appellant) had an axe on the day of the incident?
Mrs Mahmoud has quite forcefully submitted that the learned trial Judge merely discharged the other accused persons on a technicality not that he disbelieved the prosecution witnesses. I am not quite sure that on the record that is what he did even if that was what he intended. Mrs Mahmoud who relied on Obiode (supra) might have gone on to submit that the learned trial Judge could quite rightly believe part of the testimony of the P.W.P or any other prosecution witness for that matter, and disbelieve the other Part. That is infact what this Court decided in that case. Fatayi-Williams, J.S.C. (as he then was) at page 40 of the report said-
"We agree with Mr Gbemudu that a trial Judge can, under certain circumstances, accept part of the testimony of a witness and reject the rest. Moreover, it is not impossible