In The Supreme Court of Nigeria
On Friday , the 12th day of January, 1990
Suit No 130/1988
Between
Ozaki and Another ....... Appellants
And
The State ....... Respondent
Judgement of the Court
Delivered by
Andrews Otutu Obaseki. J.S.C
This criminal appeal raises important issues. The first is the burden of proof or onus of proof and the second is the question of standard of proof required in criminal cases to secure conviction. The other equally important issues raised are whether there is need to give direction on the issue of provocation and the issue of self defence when a defence of alibi is raised unsuccessfully in the light of the evidence on record. Finally, there is the question whether an accused can be convicted on the written statement of a co-accused made to the police in his absence. The formulation of these issues by the appellants' counsel, Chief F.O. Akinrele, S.A.N., runs as follows:
(1) The Court of Appeal having found that there was a misdirection in the assessment of the evidence offered as alibi, was the Court of Appeal right to have dismissed the appeal of the appellants?
(2) Was the learned Judge right that there was no evidence on record to consider the case of provocation or self-defence as the appellants have retracted the story contained in their statements to the police?
(3) Was the Court of Appeal right in holding that there can be no case of provocation for acts done in the absence of the appellants?
This appeal is against the decision of the Court of Appeal sitting in Kaduna on appeal from the High Court of Kwara State holden at Lokoja. The information filed in the High Court of Kwara State charged the two appellants herein to wit:
(1) Danlami Zaki and
(2) Tukura Zaki and 5 others namely
(3) Wamba Bawa;
(4) Peter Waiyam;
(5) Musa Baba,
(6) Yusuf and
(7) Shaba Tukura
with culpable homicide punishable with death under section 221(a) read in conjunction with section 7 of the Penal Code.
The facts of this case accepted by the learned trial Judge are contained in the evidence of P.W.2, PC. No.61732 by name Abayo Abimeka and P.W. 3 No. 62376 Corporal Augustine Garuba.
Briefly, P.W. 2 and P.W. 3 went on patrol duty to Ahoko village. On getting to the village, they saw a crowd of people sad and wailing. On enquiry, accused 4 told them that one fulani man, unknown to them had shot to death their brother and ran away. They then found their way to the main road where they could get a vehicle. On getting to the main road, they stopped a bus going to Koton Karfe. They then saw late Mohammed Dan Mauta alighting from the bus and he came to P.W. 2. He enquired what was happening and as P.W. 2 was trying to explan to him, the enraged villagers (including the 1st, 2nd, 3rd, 4th and 6th accused) pounced on him and attacked him. On seeing 1st appellant armed with a cutlass, the deceased fled shouting for help. P.W. 2 in order to prevent the villagers from killing him, followed to help him but 1St appellant and others ran faster passed him and got hold of the deceased. His effort to save the deceased was unsuccessful and abortive. As he struggled with accused 1, accused 2 got the cutlass from accused 1 and cut the deceased on the head with it. Accused 3 and 4 used the butts of their dune gun to hit the deceased. Accused 6 who held a long knife used it to cut the legs of the deceased. P.W. 2 could not recognise accused 5 and 7. The picture will not be complete without a narration of the facts of events that brought the rage on the crowd.
The day was Christmas day, 25/12/81. The 1St appellant was in his house at Ahoka village enjoying Christmas when his daughter, Felicia brought news to him that Fulani hersdmen and their cows were right inside his farm and that the cows were eating his crops. The 1st appellant then dispatched his brother Philip Ozaki to investigate. He followed soon after. When Philip got to the farm, an altercation ensued between him and a fulani herdsman armed with a dane gun. Soon afier, the fulani man opened fire and shot Philip dead with the dane gun. At this juncture, the fulani herdsman fled and when 1st appellant could not find him, he sought the assistance of the police. The victim was named Mohammed Dan Mauta and the date he was attacked and killed was the 25th day of December, 1981. The scene of crime was at Ahoko village in Osere Local Government Area within Kwara Judicial Division.
This case is a typical example of transferred malice. The appellants were alleged to have mistaken the victim for the person, a cow-herdsman who shot and killed Philip Ozaki, a relation of the appellant sent to ward off the herdsmen and their cattle from their farm, and seriously wounded another person by name Moses.
Seven accused persons were arraigned before Adeniyi, J., and tried for the offence of culpable homicide punishable with death contrary to section 221(a) of the Penal Code. Eight witnesses testified for the prosecution. In addition to the seven accused persons who testified in their own defence, eight defence witnesses were called. D.W. 1, D.W. 2 testified at the instance of 1st accused appellant. D.W. 3 testified on behalf of 2nd accused appellant to corroborate his alibi. D.W. 9 Shenlo Ozaki was the father of accused 1 and the deceased Philip Ozaki who is his eldest son.
After hearing evidence and addresses of counsel, Adeniyi, J., delivered a considered judgment in which he found 1st, 2nd, 5th and 6th accused persons guilty and convicted them and sentenced them to death for culpable homicide punishable with death He then found the 3rd, 4th and 7th accused persons guilty of causing grievous hurt to the deceased contrary to section 242 of the Penal Code and punishable under section 247 of the Penal Code and sentenced each of them to 2 years imprisonment.
Dealing with the defence of alibi set up by 1St appellant, the learned trial Judge said:
It is settled law that the defence of alibi raised by an accused is to be proved by balance of probability. I have duly considered the defence of accused I in this respect and I find it incredible and wholly unacceptable The testimony of P.W. 2 and P.W. 3 whom I believe, destroys such a hollow defence which is devoid of all merit particularly when the farm, the scene of the crime is very close to Ahoko village. It can be seen when one is in that village.
Dealing with the defence of alibi set up by the 2nd appellant, the learned trial Judge observed and commented as follows:
Accused 2, Tukuma Ozaki, testified that he travelled to Abaji on 25/12/81 where he celebrated Christmas and did not return till 5.00 p.m. This was confirmed by D.W. 1 called by accused 1 and by his own wife D.W. 3 called by him. He knew nothing about the death of Mohammed Dan Mauta whereas in his statement, Exhibit 3, he explained that he was at the village that day and that he only joined accused 1 to carry their deceased brother home. He is self contradictory and therefore unreliable.
Commenting generally, the learned Judge said:
After sifting the evidence relating to alibi pleaded by each accused as supported by his witnesses and weighing the same against the evidence proffered by the prosecution witnesses on that point, I find that the weight of evidence or the balance of probability tilts on the side of the prosecution. In consequence, thereof, the respective alibi totally fails. Those pleas must be rejected and having regard to the clear and strong evidence of P.W. 2 and P.W. 3 both of whom also took part in the affest and the identification parade. See the classic case of Ortase Yanor y'. The State 1965 N.M.L.R. 337. The basic law on this point is well stated in Suberu Be/b & Ors. y. Commissioner ofPolice (195941) W.N.L.R. 124 where it was held that the burden of establishing the defence of alibi which lies on the accused is like that which lies on the defendant in a civil case, it is discharged by the balance of probability and not by proof beyond reasonable doubt. I do not see any discrepancies in the evidence of P.W. 2 and P.W. 3 and none is pointed out to me as regards the identities of the accused persons who joined hands to kill the deceased.
Of great concern to me is the statement by the learned trial Judge that:
Out of all the accused persons it was accused 2 who implicated accused I in his statement to the police, Exhibit 3 and to the effect that accused 1 killed or confessed to him that he, accused 1, killed the deceased with his cutlass. The relevant portion of his statement reads:
I also saw Danlami with the cutlass he used in killing the fulani man but blood was not on the cutlass by then again as he washed it away before he reached home.,
The statement was admitted without objection but was later retracted by accused 2... His statement Exhibit 3 will therefore be treated with great caution and used, after duly warning myself, in conjunction with other abundant corroborative evidence available in so far as it incriminates accused 1."
Dealing with the defence of provocation, the learned trial Judge observed and commented as follows:
As all of them had pleaded alibi, a defence which fails in each case, the court has a duty to examine the evidence adduced by the prosecution and see if any defence of provocation or self defence can be deduced and sustained.
I have accordingly cast my mind back upon the totality of the prosecution evidence and am unable to find any evidence of self-defence or provocation. The defence is now nothing but absolute denials. Learned defence counsel only urged these defences of self-defence and provocation in respect of each accused merely on the assumption that Exhibit '2' and '2A', the confessional statement of accused 1, were properly in evidence. As it is now discarded for reasons earlier given, the court has to rely only on oral evidence of the prosecution witnesses together with the remaining uncontroverted statements of the other five accused persons to the police and the oral evidence and the denials of each of the accused persons .
The suspicion by the accused persons that the deceased was the culprit who shot Philip Ozaki dead was unfounded or baseless. At least as at that material time of the attack on the innocent deceased the accused persons should be regarded as aggressors relying on the evidence of P.W. 2 and ........ Accused 1 and 2 were not at that time put in any personal danger of their lives nor was the defence of their private property at stake
They meant to wreak vengeance on any fulanis they might happen to see around the farm and they did so on the deceased in revenge for the death of Philip Ozaki shot dead earlier in the day. Self-defence, it is said, is no revenge.
Turning to the issue of provocation, none of the accused persons was provoked before and at the time accused 1 got hold of the deceased and struck him with a cutlass . . The case borders on or is in line with the decisions in R. v. Afonja (1955) 15 W.A.C.A. 265.
Provocation will not be as a defence for an accused who enraged by the acts of others, kills someone who committed no provoking acts through others.
Indeed, there was no denial that the accused person's brother and village-mate, Philip Ozaki, was in the earlier part of the day killed with a gunshot by unnamed person or fulani and that his dead body was still on the farm at the time the deceased came out of the bus and was mauled down...
All that has been said on provocation so far is putting the case too favourable for the defence. The fact remains that their defence of alibi will no longer make the defence of provocation available to them as thev will either stand or fa II by their plea. They ought not to be heard approbating and reprobating. That is to say, having pleaded alibi, they cannot fall back on the defences of provocation and self defence in the circumstances of this case.
Above all, the statement of accused 2, Tukura Ozaki, neatly links accused 1 with the commission of the offence or killing of the deceased.
As already mentioned, it may be argued that the statement of accused 2 Exhibit 3 and 3A respectively, emanated from an accomplice. This is so by virtue of their being charged and tried together in this case. But it is submitted that accused 1 can be convicted on Exhibit 3 provided the court receives the evidence with caution and duly directs itself as to the danger of convicting accused I on any uncorroborated evidence (i.e. Exhibits 3 and 3A;) of accused 2 as stated in R. v. Lagos (1941) 67 W.A.C.A. 123.1 have however found corroboration in abundance in the evidence of P.W. 5 and P.W. 2 and P.W. 3 together with exhibit 5 where in the types of the wounds states are similar to those inflicted by the accused persons on the deceased.
Accused 2 has fixed accused I in Exhibit 3...
Accused 1 on Exhibit 3 alone without corroboration, I accept it and find that Mohammed Dan Mauta died on 25/12/81 his death having been caused directly by the acts of accused 1, 2, 5 and 6 who gave him cutlass cuts or matcheted him on the head and almost severed his two feet from his body till he died."
Aggrieved by the decision of the learned trial Judge, all the 1st, 2nd, 5th and 6th accused persons appealed to the Court of Appeal against the decision complaining inter a/ia of misdirection in law on the defences of alibi, self defence and provocation, and identification and generally the burden of proof. In a well considered judgment, the Court of Appeal allowed the appeal of the 3rd and 4th appellants and affirmed the conviction of the 1st and 2nd appellants. The 1st and 2nd appellants were still dissatisfied and have brought this appeal to this Court.
The Court of Appeal dealt with the issue of the erroneous consideration of the question of alibi by the learned trial Judge at length. Ogundere, J.C.A. (with whom Wali, J.C.A. and Akpata, J.C.A. concurred) commented on the issue of alibi as follow:
This court in this division, in Chewmeh V. The State (1986) 2 N.W.L.R. (Part 22) page 331 at pages 342-343 expatiated on the law regarding the defence of alibi in my own contribution thus:
In this regard, it is settled law that an accused person whose defence is an alibi, that is he was elsewhere at the time of the commission of offence, has the onus to bring evidence on alibi, which when considered with the case for the prosecution creates a reasonable doubt in the mind of the Judge so as to entitle him to an acquittal. The burden is far less than that in civil case, i.e. balance of probabilities. His mere assertion that he was elsewhere does not, however, discharge the burden unless the prosecution during the investigation found it to be true or is in doubt whether or not it is true. Eze V. The State (1976)1 S.C. p.125 at 130. Gashi & Ors. v. The State (1965) N.M.L.R. p.333 per Brett, J.S.C., at p.334....
The next question is to find out whether or not the police investigated the defence of alibi by all the appellants. The answer is in the negative. The reason could be found in the testimony of two eye witnesses to the killing both being policemen in mufti, who testified to the hearing.
The failure to investigate the defence of alibi must have created a serious lacuna in the evidence led by the prosecution. Without the investigation and evidence thereof, the truth or falsity of the evidence of the two eye witnesses P.W. 2 and P.W. 3 cannot be established. However, the appellants have appealed against the decision of the Court of Apeal and the grounds argued before us are:
(1) That the Court of Appeal erred in law in dismissing the appeal of the appellants when it was patent from their findings that the learned trial Judge misdirected himself in law on the onus of proof by the prosecution on the issue of alibi raised by the appellants and that such misdirection occasioned a failure of justice.
Particulars
The learned trial Judge held as follows:
After sifting the evidence relating to alibi, pleaded by each accused as supported by his witnesses and weighing the same against the evidence proferred by the prosecution witnesses on that point, I find that the weight of evidence or the balance of probability tilts on the side of the prosecution. In consequence therefore the respective pleas of alibi fails.'
Whereas in point of law, the onus on the prosecution is (proof) beyond a reasonable doubt.
(2) The learned trial Judge erred in law in failing to consider the issue of self defence and provocation on the grounds that the statement of the accused raising them deviated from in their testimony in court. Whereas it was obligatory on the court to consider alternative defences on record even if not raised.
(3) That the Court of Appeal erred in law in holding that there cannot be provocation, if the appellant was not present at the time of the firing of the gun. Whereas from the evidence, the appellants were proximate enough and saw the corpse of the deceased - a sequence which makes such a distinction immaterial.
(4) That the decision is unwarranted, unreasonable and cannot be supported having regard to the (weight of) evidence.
Chief F.O. Akinrele, S.A.N., dealt with the issues raised in this appeal in an admirable manner. He was brief and to the point in his submissions.
On the issue of alibi, he submitted quite rightly that as a matter of general propositon of law, it is settled law that there is no burden of proof imposed on an accused to establish an issue affording justification or excuse at common law, such as accident, self defence or alibi as an answer to the charge. He contended, quite justifiably in law, that if an accused puts forward an alibi, the onus is not on him to prove such defence but on the prosecution to disprove it citing in support the case of R. V. Johnson (1961)1 W.L.R. 1478; Yanor V. The State (1965) N.M.L.R. 337 the dictum of Lewis, J.S.C., in Arebamen V. The State (1972) 4 S.C. 35 at 4~l and the dictum of Jkono V. The State (1973) 5 S.C. 231 at page 256.
On the issue of self-defence, he cited in support of his contention that the accused persons have no onus to discharge-the case of R. y,. Abraham, an English case reported in (1973) 3 All E.R. page 694.
On the issue of failure to consider the alternative defences of provocation and self defence, Chief F.O. Akinrele, S.A.N., learned counsel for the appellants contended and emphasised that a trial Judge must consider all alternative defences which appear on the records whatever the line adopted by counsel in the case. He found support in the dictum of Viscount Simon, L.C., in Mancini V. D.P.P. 1942 A.C. 1 at page 1 and the dicta of Lord Reading in R. V. Hopper (1915) 2 K.B. 341.
Learned counsel for the respondent in reply submitted that the learned trial Judge gave adequate consideration to the defence of alibi, provocation and self-defence raised by the appellants in their defence. He submitted further that there was no evidence of acts of provocation offered by the deceased to the appellants to avail them of the defence of provocation and self defence. He described the act of killing of the deceased by the appellants as an act of vengeance on an innocent person for the death of Philip Ozaki.
In view of the seriousness of the charge, these submissions of the counsel deserve careful and meticulous consideration. I cannot say that the statements of law on the pieces or defence of alibi and the value of the confessional statement of a co-accused have been helpful. They have been the source of serious complaints in this appeal.
ALIBI:
What is the meaning of alibi? It is a defence where an accused alleges that at the time when the offence with which he is charged was committed, he was elsewhere. It is the law that notice of intention to raise it must be given. This is normally done at the first possible opportunity by a suspect in answer to a charge by the police at the investigation stage to enable the truth or falsity of the allegation to be established by the police seeR. V. Lewis (1969) 2 Q.B. 1. Adjo V. The State (1986) 3 N.W.L.R. 714; (1986) 2 N.S.C.C. 815; Adedeji V. The State (1971)1 All N.L.R. 75; Gachi V. The State (1965) N.M.L.R. 333 per Brett, J.S.C. at p.334; Fatoymbo V. Attorney-General, Western Nigeria (1966) W.N.L.R. 4 Eze V. The State (1 976) 1 S.C. 125 per Obaseki, J.S.C. at 130.
Once a defence of alibi has been promptly and properly put up, the burden is on the prosecution to investigate it and rebut such evidence in order to prove the case against the accused beyond reasonable doubt. Adedeji V. The Slate (1971)1 All N.L.R. p.75. Failure by the police to investigate and check the reliability of alibi would raise reasonable doubt in the mind of the tribunal and lead to the quashing of a conviction imposed in disregard of this miqrnrement as was done in the case of Onafowakan V. The State (1987) 7 S.C.; (1987) 3 N.W.L.R. (Part 61) page 538; (1987) 2 N.S.C.C. 1101. The accused person only has what is referred to as evidential burden which means the duty of adducing evidence or raising the defence of alibi. Ortese Yanor & Ors. ". The State (1965) N.M.L.R. 337; Patrick Njo"ens & Ors. V. The State (1973) 5 S.C. 17 at 85; Wasari Umani ". The State (1988)1 N.W.L.R. (Pt. 70) 274 Bozim ". The State (1985) 2 N.W.L.R. (Pt. 8) 465; (1985) 7 S.C. 450; (1985) 2 N.S.C.C. 1087.
Once an accused person discharges the evidential burden of adducing evidence of alibi, it is the duty of the prosecution to disprove it. The duty of the learned trial Judge is to test the evidence of alibi against the evidence on the issue adduced by the prosecution and if there is doubt in the mind of the learned trial Judge to resolve it in favour of the accused.
The onus on the prosecution to prove the charge against the accused beyond reasonable doubt never shifts and there is no onus on the accused to prove the alibi beyond that of introducing the evidence of alibi. Bozim". The State (supra). Where the accused person gives conflicting stories as to his whereabouts at the material time under consideration, there is no duty to investigate the alibi. In such a case, no alibi is established. Agu v. The State (supra).
The ipse dixit of the accused, i.e. that he was not present there is not enough. To raise the defence he must give particulars of his whereabout at the particular time. Aga v. The State (supra) Ohiode v. The State (1970)
N.S.C.C. 31.
The learned trial Judge in this matter while considering the duty of the accused person in respect of alibi, held as shown earlier on in this judgment that the accused had the duty to establish the alibi on a balance of probability. This phrase balance of probability was culled from the submission of counsel to the Supreme Court in the case of Ohiode & Ors. v. The State (supra) (1970) N.S.C.C. 31 at 34. Fatayi-Williams, J.S.C. (as he then was) delivering the judgment of the Court said:
It was also contended by learned counsel that since the identification of the 10th accused person by th 1st p.w. did not satisfy the learned trial Judge, this witnesses' identification of the 1st, 2nd, 4th and 9th accused persons could not have been beyond all reasonable doubt and indeed to the extent that these witnesses said they saw the seven accused persons participating in the crime, they could not have been speaking the truth. In the learned counsel's submission, this point is all the more important when it is realised that in order to establish the defence of alibi, it is not necessary to prove the alibi beyond all reasonable doubt it being sufficient to raise a defence on the balance of probabilities. In considering whether the learned trial Judge could have been satisfied with the case against the accused persons, Chief Williams finally submitted that the nature of their defence which was that the prosecution witnesses lied against them was material.
It was therefore not a statement of law by the Supreme Court that the accused persons' duty in relation to the defence of alibi is to establish the defence on a balance of probabilities. Balance of probabilities means preponderance of evidence. In other words, the accused persons adduce evidence which out-weighs the evidence of the prosecution on the issue of alibi. That is not the law. As stated above, the only onus on the accused person is the evidential burden. The effect of such evidence is not dependent upon its preponderance. It may be scanty or minimal but yet very effective in raising reasonable doubt in the minds of the tribunal. It may be abundant yet raise no doubt in the minds of the tribunal.
In the instant appeal, the learned trial Judge erred in his direction on the onus of proof and standard of proof of alibi. The Court of Appeal therefore erred in affirming the conviction based on this misdirection.
What then is the law? In Arebamen V. The State (1972) 4 S.C. 35 at p. 4~ 41; (1972) N.S.C.C. 194 at 197, Lewis, J.S.C. (delivering the judgment of the Supreme Court) said:
In our view though we agree the onus is on the prosecution to disprove the alibi, as the learned trial Judge rightly stated, since we said in Adedeji V. The State S.C. 324/70 (unreported) of the 19th of February, 1971.
We think that what he was intending to say though he might have perhaps more happily phrased it, is that if an accused person wishes to put forward an alibi, it is for him to offer evidence accordingly but if he does put forward evidence then the onus is not on him to satisfy the jury that the alibi on such evidence is established but for the prosecution to disprove the alibi. We must emphasise that there is no onus on the accused to satisfy the jury on the alibi once he has put forward evidence which might establish it (cf R. "Johnson (1961)) 1 W.L.R. 1478 and Yanor V. The State (1965) N.M.L.R. 337).
Again in Ikono & Anor. V. The State (1973) 5 S.C. 231(1973) N.S.C.C. 352, it was held that
(1) The person who puts forward an alibi as an answer to a charge does not assume any burden of proving that answer and that it is a misdirection to refer to any burden as resting on the prisoner in such a case.
Ogundere, J.C.A., in his judgment misdirected himself in law when he said:
In my view as regards accused 1 and 2, 1St and 2nd appellants herein independent and responsible witnesses saw and testified to the commission of the offence and were able to identify the offenders, the rule that alibis must be investigated is therefore inapplicable in the face of credible evidence of two witnesses.
There is no such exception to the rule.
The two policemen, p.w. 2 and p.w. 3 were police witnesses and not the investigating police constables whose duty was to investigate the alibi. It is the evidence of investigating constable on the issue that could have provided the measure by which to test the credibility of p.w. 2 and p.w. 3 on the one hand and the credibility of the appellants on the other if there had been any. It would have enabled the learned trial Judge to deterinine the cogency of their evidence and the proper weight to attach to the evidence of each witness.
The erroneous statement of law by the learned trial Judge and that of the Court of Appeal on the effect of the failure of the police to investigate the alibi of the appellants has occasioned a serious miscarriage of justice. The 2nd apellant set up the alibi from the time of his arrest and maintained it in court but the 1st appellant's alibi was put forward only in court. It is impossible for this Court to say what influence a proper and correct direction would have had on the mind of the learned Judge in regard to the cases made against the 1st and 2nd appellants. But in my opinion, the alibi of the appellants not having been proved false, is bound to create doubt in the mind of the learned trial Judge as to the guilt of the appellants and that doubt must be given in their favour. This, I hereby do.
CONFESSIONAL STATEMENT BY 2ND APPELLANT
I will now proceed to consider the effect of Exhibit 3A the statement of the 2nd appellant, a co-accused of the 1st appellant on the conviction of the 1St appellant.
The 2nd appellant was charged and tried along with the I St appellant. He was therefore a co-accused. The