BALA ATAGUBA v COMMISSIONER OF POLICE (CA/A/90/C/08) [2011] NGSC 12 (13 April 2011)

In The Court of Appeal

(Abuja Judicial Division)

On Thursday, the 14th day of April, 2011

Suit No: CA/A/90/C/08

Before Their Lordships

 Between

 And

REGINA OBIAGELI NWODO, J.C.A. (Delivering the Leading Judgment): The appellant with two other persons were arraigned first before Grade I Area Court Ajaka and the case was later transferred to the Magistrate Court and they were arraigned before the Chief Magistrate Court of Kogi State of Nigeria as accused persons on allegation of committing the offences of Criminal Trespass and mischief contrary to sections 348 and 327 of the Penal Code Law in case No. ICMC/15C/2006. Each of the accused denied the allegations. The prosecution called four witnesses who testified before the court. At the close of the case, the learned Magistrate ruled that a case has been made out against the accused persons and proceeded to frame two count charges against them which read as follows: 

"1. That you Bala Ataguha Godwin Aguda and Wada Abuka all males of Ikare Ajaka within the jurisdiction of this court, on or about the 13th day of February, 2006 unlawfully entered into the landed property then in possession of one Agude Adaji and thereby committed an offence punishable under S.348 of the penal code.

2. That you Bala Ataguba, Godwin Aguda and Wada Abuka, all males of Ikare - Ajaka, within the jurisdiction of this court, on or about the 13th February, 2006 wrongfully damaged or destroyed a mud cement building belonging to one Agude Adaji and thereby committed an offence punishable under S.327 of the penal code.

The reproduced charges were read to each of the accused persons who each understood the charge and each pleaded not guilty. Each of the accused testified and called a witness. The learned counsel addressed the courts respectively.

The Chief Magistrate Hon. M. M Gwatana in a well considered Judgment discharged and acquitted the 2 and 3 accused persons and found the 1st accused who is now the appellant guilty of committing the offence of criminal trespass and mischief punishable under S.348 and S.327 of the penal code respectively. The accused person was sentenced to 12 months imprisonment or option of fine N3,000.00 (Three Thousand Naira) for the offence of criminal trespass and for the offence of mischief he was sentenced to a prison term of six (6) months or a fine of N1,000.00 the sentences to run concurrently.

The convict Bala Ataguba, aggrieved by the decision then appealed against the decision to the High Court of Justice, Kogi State vides a Notice of Appeal filed on 8th February 2007. The notice of appeal contains three (3) grounds of appeal. The High Court after a consideration of the appeal decided that the trial court effectively handled the case and affirmed the conviction and sentence of the appellant, by the trial court. 

The appellant dissatisfied with the decision of the High Court of Justice Kogi State delivered on 26/07/07 filed a notice of appeal containing four grounds of appeal.

In line with the practice and rules of this court, parties filed and exchanged briefs of argument. At the hearing of the appeal on 02/03/2011 learned counsel for the appellant adopted the appellants brief settled by Chief O.J Onoja filed on 17/12/09. The learned counsel for the respondent adopted the respondents' brief of argument settled by Joe A. Abrahams filed 8/6/2010 and deemed filed on 30/9/10 by order of court.

Briefly the facts that lead to the case is as follows: the complainant described as police informant commenced the erection of a building on a disputed land. Sometime in February 2006, he sent his children to pick cashew nuts in the farmland when the children, PW2 and PW3 approached the farm they saw some people destroying the house their father built on the land, when they asked the people why they were breaking their fathers house, they pursued them with cutlasses and stick. The PW2 and PW3 reported that they saw the three accused persons amongst the people destroying the building in the farmland. 

In the appellants brief, 3 issues were distilled for determination from the ground of appeal which reads thus:

"1. Whether the appellant raised the defence of alibi timeously. (Ground: 2)

2. Whether the appellant is not entitled to the defence of bonafide claim of right. (Ground: 3)

3. Whether the appellant was properly convicted and sentenced for the offences of Criminal Trespass and Mischief, (Ground: 1 and 4)."

Whilst in the respondent's brief two issues distilled for determination reads as follows:

"Whether there exists a justifiable ground for disturbing the judgment of the trial chief magistrate court, Idah (which was affirmed by the appellate high court) wherein the appellant was convicted and sentenced for the offences of criminal trespass and mischief (grounds 7, 2 and 4).

Whether the defence of bonafide claim of right can avail the appellant (ground. 3).

I have looked at the issues distilled by the learned counsel for the appellant and the respondent respectively. The three issues formulated in the appellant brief are apt for the determination of the points raised in the grounds of appeal. I will adopt the three issues for the determination of this appeal. 

Under Issue one whether the appellant did not raise the defence of Alibi timeously. The learned counsel for the appellant contended that the oral testimony of PW4 is that the appellant raised the defence of alibi early enough but same was not recorded in his statement by the PW4 who was the investigation officer that recorded the statement of the appellant. It is his submission that the absence of such defence in the recorded statement of the appellant is the fault or sin of the police, particularly the PW4 and same cannot be visited on the appellant in this case. He referred to Oteju v. M.M S. Ltd. (2000) 1 NWLR (Pt.646) 270 where it was held that visiting the sin of counsel on the litigant breeds injustice.

Learned counsel further submitted that PW4's testimony that appellant raised the defence of alibi whereas same is absent in the recorded statement raises a doubt on whether the said defence was not raised at all. He submits that it is the law that where there is a doubt in a criminal trial such doubt must be resolved in favour of the accused person. He referred to State v. Kura (1975) 9 NSCC 25 at 28. He urged the court to resolve the doubt in favour of the appellant as it was the failure of the PW4 to record the defence of alibi that lead to the failure of the police to investigate same in the first place. He urged the court to hold the defence of alibi was raised at the earliest opportunity. 

Learned counsel for the respondent submitted that the appellant had an unfettered opportunity to raise the defence of alibi before the police on apprehension and commencement of investigation and he did not do that, he contends it is too late in the day to complain. He cited Evisi v. State (2000) 15 NWLR (Pt.691) 555 at 596 - 597 Paraeraph G-H. The crux of this issue is whether the testimony of PW4 reflects that the appellant raised the defence of alibi at the state of investigation and when his statement was recorded by PW4. 

On the issue of alibi the chief magistrate in his judgment (see page 43 of the record of appeal) held

"In the instant case, the 1st accused person did not raise such a defence in his statement to the police as such, there is nothing on alibi that the police would have investigated. I hold therefore that the defence of alibi is not available to the 1st accused person."

On appeal to the High Court the court dealing with the plea of alibi held

"The default of the police to effect investigation of the defence of alibi raised by the 2nd and 3rd accused earned each of them the cheap victory. We hold that the appellant could not have been benefited from the glaring default of the police on discharge of their legal responsibility by investigating the defence. The appellant did not invoke it timeously as reqaired by law" 

The word "alibi" is a Latin expression meaning "I was elsewhere" the defence of alibi seeks to persuade the court that the accused person could not have been at the scene of the crime because he was somewhere else, where most probably they are people who could testify that at the time of the alleged act he was not at the scene of the crime. The purport of the defence is that one person cannot be at two places at the same time. See Sowemimo v. State (2004) 11 NWLR (Pt.885) 515.

The defence of alibi must be disclosed with necessary details and particulars at the earliest opportunity so as to put the burden on the police to check on them and deal with them with some finality. In Afolalu v. State (2010) 5 - 7 SC (Pt.11) Pg 93, Mohammed JSC said: 

"With regard to the Appellants' defence of alibi, the law is indeed well settled that where, as against the defence of alibi raised by an accused person there is a visual identification evidence of the accused by the Prosecution witness which the Court accepted and believed, such evidence will effectively destroy the defence of alibi raised."

See also Njovens v. State (1973) 5 SC 17. Madagwa v. State (1988) 5 NWLR (Pt.92) 60

See Esanebedo v. the State (1989) 4 NWLR (Pt. 113) 57.

Ndidi v. State (2005) 17 NWLR (Pt.953) CA 17.

See Onveebu v. State (1995) 4 NWLR (Pt.391) 510 SC.

Okosi v. the state 1989 1 NWLR (Pt.100) 642 at 659.

Ozaki v. the State (1990) 1 NWLR (Pt.124) 92. 

Nwabueze v. the State (1988) 4 NWLR (Pt.80 16.

In Eyisi v. State (2000) 15 NWLR (Pt.691) SC 555 Uwaifo J.S.C said:

"In order to be able to rely on alibi an accused must give a sufficient lead to the police at the earliest opportunity. The facts supporting it are not to be given half - heartedly or sprung upon the prosecution or the court. Alibi is a radical defence and simply means an accused was somewhere else at the material time an office was committed and could not possibly be at the scene to partake in it.

The PW4 the investigating police officer in evidence on oath said

"The accused persons denied the allegations claiming that they were not at home the time and day of incident. They individually mentioned some villages which they claimed they went. I invited them on two occasions for us to go to the said places but they refused to show up. During the investigation, I discovered that the land wherein the house was been built was in dispute."

PW4 in evidence stated that each of the three accused persons maintained they were in some village at the time of the act. The same witness when asked under cross examination that the three accused persons he was investigating were not arrested at the same time and that statements were obtained on different dates agreed that the appellant as 1st accused was arrested on 13/2/06 and his statement recorded that same date. From the testimony of the PW4 the appellant mentioned he was in some village. The appellant's statement to the PW4 did not contain any thing on where he was at the time of the act for which he is alleged to have committed the offence. The other two accused persons charged along with him, each stated specifically with particulars in their statement recorded by the same PW4 where they were at the time of the incident. Each of the 2nd and 3rd accused persons charged with him were acquitted for non investigation of the alibi, which each raised at the time they made their statement stating they were elsewhere on the date of the incident and the name of town. The appellant in his statement recorded 13/2/2006 said as follows: after the cautionary words, I reproduce for emphasis:

"I, of the above named and address, freely wish to state as follows: 

I know the complainant one Agude Adaji 'M' of Ajaka. The building he complaint against me I did not know where he build the house nor to go there destroyed the building. But we have a case on that land, my family and his own family, which the case is now pending in the court. We sit on the 06/02/06 in the court and the case adjoins for hearing again on 13/03/06 that is why he forms this allegation on me. But I did not know anything pertaining to his building. This is all my statement" 

From the contents of the reproduced statement it is absolutely clear that the appellant whilst making his statement did not raise the defence of alibi. The evidence of PW4 that each of the accused persons individually mentioned some villages they claimed they went to is not in the said statement and cannot be the basis for the appellant during trial to claim he raised the defence of alibi. The settled law is that the accused person wishing to raise the defence of alibi must raise it at the earliest opportunity to enable the police to investigate it. The accused must offer evidence as to where he was at the time of the crime. Once an accused person raises the defence of alibi, the onus is on the prosecution to disprove the alibi. The appellant had an evidential burden of eliciting some evidence with all necessary particulars which can be checked to show he was somewhere else. 

See Nwabueze & other v. The State (1988) 7 SC (Pt.11) 157.

Thus the duty to investigate the alibi rest on the police. It has been held by the appellate courts that failure to investigate alibi may be fatal to the prosecution's case.

See Sowemimo v. State (supra) Aiguoragtion v. State (2004) 3 NWLR (Pt.860) 367 SC. However the omission to investigate cannot be a carte blanche to set an accused person free, where there is positive evidence which fixes the accused person at the scene of crime at the material time. Once the court accepts, that evidence the alibi naturally collapses.

See Sunday v. the State (2010) 5-7 SC (Pt.11) pg.156. Adekunle v. The State (1989) 12 SC 203.

Patrick Njovens and Others v. the State (1989) 1.2 SC 203.

It is therefore the appellant that will set up the defence of alibi and the duty shifts to the police to investigate. PW4 in evidence stated that each of the accused persons denied the allegations claiming they were not at home the date of incident. This testimony cannot be construed to mean that the appellant raised the issue of alibi at the earliest opportunity. PW4 said further that they individually mentioned some villages which they claimed they went to and that they were invited on two occasions but they refused to show up. This evidence cannot sustain a defence of alibi. The appellant was the first to be arrested on 13/02/06. The investigating officer had ample time to investigate, if the appellant had given particulars at time of arrest but the appellant from the entire evidence did not. Furthermore during cross examination the appellant cross examined the PW4 but did not cross examine the witness on why he did not record the issue of alibi he raised at time of arrest and recording of statement. The purpose of cross examination is to contradict the evidence of a witness and thus create a doubt on the credibility of this witness. This was not done by the appellant. Furthermore, the appellant's statement under caution did contain any information that he was in any particular place and time at the time of the incident. If he had an oral conversation with PW4 the investigating police officer that he was in another village that information is very vital that he should have insisted on it being recorded in his statement. Appellants claim he told the PW4 is not supported by the contents of his statements nor the testimony of PW4. Inorder for a defence of alibi to be sustained an accused must give adequate particulars of the name of the place where he was and the time. The a