OZAKI & ANOR (APPELLANT)
v.
THE STATE (RESPONDENT)
(1990) All N.L.R. 94
Division: Supreme Court of Nigeria
Date of Judgment: 12th January, 1990
Case Number: S.C. 130/1988
Before: Obaseki, Uwais, Kawu, Agbaje, Nnaemeka-Agu JJ. S.C.
The appellants (1st and 2nd accused) were amongst five others charged with culpable homicide punishable with death under section 222(A) read in conjunction with section 7 of the penal code.
On Christmas day, in 1981, the 1st accused was in his house when his daughter brought news to him that some Fulani herdsmen 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. When Philip got to the farm an altercation ensued between him and a Fulani herdsman who shot him dead with his dane gun and fled immediately.
Later in the day in the presence of PW 2 and PW3 both police officers who were on patrol, the 1st, 2nd, 3rd 4th and 6th accused persons, mistaking the deceased for the Fulani herdsman that had killed Philip Ozaki, pounced on him and attacked him. The 1st appellant got hold of the deceased while the 2nd appellant cut him on the head with a cutlass. The 3rd and 4th accused persons used the butt of their dane guns to hit the deceased while the 6th accused used a long knife to cut his legs. The 5th and 7th accused persons were not recognized.
The appellants herein testified at the trial that they were not at the scene of the murder of the deceased. The trial Judge after hearing evidence and addresses of counsel found the 1st, 2nd, 5th and 6th accused persons guilty, convicted them and sentenced them to death. He 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 sentenced each of them to two years imprisonment.
On the defence of Alibi set up by the 1st and 2nd appellants, the trial Judge held that the burden of establishing the defence of alibi lay on the accused. In convicting the 1st appellant he relied on an unsworn and unadopted statement made by the 2nd appellant to the effect that the 1st appellant killed or confessed to him that he killed the deceased.
The 1st, 2nd, 5th and 6th accused persons appealed to the Court of Appeal complaining, inter alia, of misdirection of law on generally the burden of proof. That court allowed the appeal of the 5th and 6th accused persons and affirmed the conviction of the 1st and 2nd accused persons where-upon they further appealed to the Supreme Court.
HELD:
(1) Alibi is a defence by which an accused person alleges that at the time when the offence with which he is charged was committed, he was elsewhere.
(2) The mere assertion of the accused that he was not present at the scene of the crime is not enough to raise the defence of alibi. The accused must give particulars of his whereabout at the time of the commission of the crime.
(3) Notice of intention to raise the defence of alibi must be given by a suspect at the first possible opportunity at the investigation stage to enable the truth or falsity of the allegation to be established by the Police.
(4) In a Criminal Code the standard of proof by the prosecution is beyond reasonable doubt while the accused is required to prove a point on the balance of probabilities that is on the preponderance of evidence. The trial Judge was therefore in serious error of misdirection when he held that the burden on the prosecution in relation to the defence of alibi could be discharged on the balance of probabilities.
(5) Any misdirection as to onus of proof is total to a conviction unless it can be shown that on a proper direction the result would have been the same. Since this cannot be shown in this case the misdirection herein is fatal to the case.
(6) 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 beyond reasonable doubt at the trial. Failure to do this could raise reasonable doubt in the mind of the Court.
(7) However it does not always follow that once the Prosecution failed to investigate an alibi such failure is fatal to the case for the Prosecution for even in the absence of investigation the trial Judge has a duty to consider the credibility of the evidence adduced by the Prosecution vis-a-vis the alibi.
(8) When two accused persons are jointly charged and tried they are regarded as co-accused. Therefore an evidence given by one of them which incriminates the other cannot, in view of section 177(2) of the Evidence Act, be treated as that of an accomplice. Since the 1st and 2nd appellants were jointly charged and tried, the trial Judge was in error in holding that the statement of the 2nd appellant was that of an accomplice.
(9) Section 27 of the Evidence Act provides that a confessional statement of a co-accused is no evidence against an accused person unless the latter has adopted the statement either by words or by conduct. In the instant case as the 1st appellant did not adopt or confirm the statement of the 2nd appellant in court but instead denied it, it is no evidence against the 1st appellant upon which he can be convicted.
Appeal allowed.
Cases referred to:
Adedeji v. State, (1971) 1 All N.L.R. 75.
Adio v. State, (1986) 3 N.W.L.R. (Pt. 31) 714.
Arebamen v. State, (1972) 4 S.C. 35.
Atanda v. A.G., (1915) N.M.L.R. 225.
Bello v. C.O.P., (1959-61) W N.L.R. 126.
Bozim v. State, (1985) 2N.W.L.R. (Pt. 8) 465.
Chekumeh v. State, (1986) 2N.W.L.R. (Pt. 22) 331.
Esangbedo v. State, (1989) 4 N.W.L.R. (Pt. 113) 57.
Evbvomwan v. C.O.P., (1961) W.N.L.R. 257.
Eze v. State, (1976) 1 S.C. 125.
Fatoyinbo v. A.G. West, (1966) W.N.L.R. 6.
Gashi v. State, (1965) N.M.L.R. 333.
Ikono v. State, (1923) 5 S.C. 231.
Mancini v. D.P.P., (1962) A.C. 1.
Ntam v. State, (1968) N.M.L.R. 86.
Njovens v. State, (1973) 5 S.C. 17.
Obiode v. State, (1970) 1 All N.L.R. 35.
Onafowokan v. State, (1987) 3 N.W.L.R. (Pt. 61) 538.
Onubagu v. State, (1974) 9 S.C. 1.
Ozulonye v. State, (1981) 1 All N.L.R. 38.
Queen v. Ukpang, (1961) 1 All N.L.R. 25.
R.V. Abraham, (1935) 2 W.A.C.A.
R.V. Adebanja, (1935) 2 W.A.C.A. 315.
R.V. Afonja, (1955) 15 W.A.C.A. 265.
R.V. Ezechi, (1962) 1 All N.L.R. 113.
R.V. Haske, (1961) 1 All N.L.R. 330.
R.V. Happa, (1915), 2 K.B. 361.
R.V. Johnson, (1961) 1 W.L.R. 1478.
R.V. Jonah, (1934-35) 2 W.A.C.A. 120.
R.V. Lagos, (1961) 7 W.A.C.A. 123.
R.V. Lawrence, 11 N.L.R. 6.
R.V. Lewis, (1969) 2 Q.B. 1.
R.V. Plastan, (1910) K.B.D. 496.
Ukwunenyi v. State, (1989) 6 N.W.L.R. (Pt. 116) 131.
Umani v. State, (1984) 1 N.W.L.R. (Pt. 70) 274.
Yanor v. State, (1965) N.M.L.R. 337.
Statutes referred to:
Court of Appeal Act, 1976.
Criminal Procedure (Statements to Police Offenders) Rules, Cap. 30 Laws of Northern Nigeria 1963.
Evidence Act.
Penal Code.
Chief F.O. Akinrele S.A.N. for the Appellant. (with Adams Usman).
Idowu Adewunmi Esq. for the Respondent. (D.P.P. Kwara State Ministry of Justice).
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 PW2, PC. No. 61732 by name Abayo Abimeka and PW3 No. 62376 Corporal Augustine Garuba.
Briefly, PW2 and PW3 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 PW2. He enquired what was happening and as PW2 was trying to explain 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. PW2 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. PW2 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 herdsmen 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 after, 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. DW1, DW2 testified at the instance of 1st accused appellant. DW3 testified on behalf of 2nd accused appellant to corroborate his alibi. DW9 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 1 in this respect and I find it incredible and wholly unacceptable. The testimony of PW2 and PW3 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 DW1 called by accused 1 and by his own wife. DW3 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 PW2 and PW3 both of whom also took part in the arrest and the identification parade. See the classic case of Ortase Yanor v. The State 1965 N.M.L.R. 337. The basic law on this point is well stated in Suberu Bello & Ors. v. Commissioner of Police (1959-61) 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 PW2 and PW3 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 1 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 PW2 and PW3 . . . 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 they will either stand or fall 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 1 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. I have however found corroboration in abundance in the evidence of PW5 and PW2 and PW3 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 1 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 alia 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 PW2 and PW3 cannot be established. However, the appellants have appealed against the decision of the Court of Appeal 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 preferred 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 learn