EDWIN v. THE STATE

EDWIN v. THE STATE


The Supreme Court 

Holden at Abuja

On Thursday, the 21st day of February, 2019


Appeal No: SC.63/2015

Citation No:


IBRAHIM TANKO MUHAMMAD JSC

MARY UKAEGO PETER-ODILI JSC

MUSA DATTIJO MUHAMMAD JSC

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN  JSC

AMIRU SANUSI JSC


Between

CHIDI EDWIN 

(Appellant)

AND

THE STATE 

(Respondent)


PRONOUNCEMENTS

A. COURT

  1. Duty of court– On the evaluation of evidence by the trial court

“I think, the role of a trial Court is not only to take evidence and watch the demeanour of witnesses, it has to primarily and fundamentally assess or evaluate the evidence so placed before it. This Court has repeatedly, stated the correct position of the law on evaluation of evidence by trial Courts that before reaching a conclusion, the learned trial judge is required by practice to set up an imaginary scale wherein he places the evidence adduced by the plaintiff or prosecution, as the case may be, on one side of the scale and equally places the evidence adduced by the defendant/accused, as the case may be, on the other side of the scale and weigh both together to consider the probative value in determining where the imaginary scale tilts and preponderates. See: Mogaji v. Odofin (1978) 4 SC 91 at 98; Sanusi v. Ameyogun (1992) 4 NWLR (Pt.237) 527. Thus, the ascription of probative value to the evidence of each witness is a matter solely for the trial Court and it is not the business of the appeal Court to substitute its own views of undisputed facts for views of the trial Court.” Per Muhammad JSC

B. CRIMINAL LAW

  1. Allocutus– On if the court must mandatorily act on the allocutus of an accused person

“Allocutus is not a defence for the accused person neither is it necessary on a trial Court to invoke it. It is only desirable in consideration of factors that may influence the mitigation of heavy punishment to a lighter one. Thus, in this case, the failure of the trial Court to avail the appellant such an opportunity is not sufficient ground to upturn the trial Court’s decision. See the case of Ogbeide v. COP(1964) 2 All NLR 176; State v. Babangida (2013) LPELR 20590. Allocutus is not a right in law. It is not a defence.” Per Muhammad JSC

C. WORDS AND PHRASES

  1. Definition– Meaning of Allocutus

“My noble Lords may wish to recall that this Court, has defined allocutus in many cases, the most recent of which is the case of Lucky v. The State (2016) LPELR 40541 where it was held that allocutus is a plea in mitigation of the punishment richly deserved by appellant for the offence with which he was charged and for which he was tried and found guilty and convicted accordingly.” Per Muhammad JSC


D. CRIMINAL LAW

  1. Alibi– Exception to the applicability of the plea of alibi

“The appellant’s submission that his plea of alibi should stand in good stead to get him off the hook and that because it was not investigated by the prosecution though the defence was raised early enough with details. Indeed, on the face of such proffered alibi made timeously what the appellant contends would represent the law but the exception to that general rule is that where the evidence adduced at the trial pins the accused at the scene of crime at the material time, the later situation automatically demolishes the defence of alibi raised and the duty placed on the prosecution to investigate and dislodge or confirm the alibi is discharged as by the nature of the standard of proof of alibi same has the burden of proof on the balance of probabilities. I place reliance on the cases of Onuchukwu v The State (1998) 4 NWLR (Pt. 547) 576 at 592; Udoebre v The State NSCQLR Vol.6 (2006) page 755 at 766; Odu v State (2001) 10 NWLR (Pt.722) 668; Tanko v State (2008) 16 NWLR (Pt.1114) 591; Ayan v State (2013) 15 NWLR (Pt. 1376) 34; Ntam v State (2003) 11 NWLR (Pt. 830) 142; Agbanyi v The State (1995) 1 NWLR (Pt.369) 1 at 5.” Per Peter-Odili JSC

  1. Allocutus– Whether the right of allocutus can avail an accused person already convicted for an offence with a mandatory statutory sentence

“On the matter whether the fair hearing right of the appellant was compromised by the allocutus not being made on his behalf. That might be the effect of failure of allocutus within a given circumstance because of the facts surrounding. That certainly would not be the case where, upon a conviction with a mandatory sentence of death such as murder as in the case in hand. This is so because allocutus would not mitigate the sentence of death which naturally flows with a conviction in a charge of murder as the penalty is a capital sentence. See Section 247 of the Criminal Procedure Law of Ondo State 2006; Section 319 (1) of the Criminal Code Law of Ondo State Cap.37 Vol 1, 2006; Ogbeide v COP (1964) 2 All NLR 176; State v Babangida (2013) LPELR-20590.

 The point has to be made that by the provisions of Section 36 (6) of the 1999 Constitution of the Federal Republic of Nigeria, allocutus does not constitute a fundamental right guaranteed under the Nigeria Constitution as the right of allocutus cannot avail not being accruable to a person already convicted for an offence with a mandatory statutory sentence as a fundamental right as upon that conviction, the judge’s hands are tied on the impending punishment to pronounce. At that point of sentencing no discretion is left for the judge on the conviction of murder than the only punishment provided mandatorily by the law which is death by hanging. In this, I refer to Cyriacus Ogidi & 3 Ors v The State (2005) 21 NSCQR 302 at 334; NDIC v Okem Enterprises Ltd (2004) 10 NWLR (Pt.880) 107.” Per Peter-Odili JSC


COURT

  1. Duty of court: On the evaluation of evidence by the trial court

“Evaluation of evidence and ascription of probative value to same, it is trite, is the primary function of the trial Court that had the opportunity of observing the witnesses while testifying.” Dattijo Muhammad JSC

CRIMINAL LAW

  1. Allocutus– Whether the non-invocation of allocutus will constitute the breach of the right to fair hearing

“Section 36 of the 1999 Constitution provide requirements non compliance with which by a Court will constitute the breach of the appellant’s right to fair hearing. Allocutus is not one of these requirements. Even Section 247 of the Criminal Procedure Law of Ondo State which is similar to Section 247 of the Criminal Procedure Act Cap C41 Laws of the Federation 2004 does not make an issue out of a Court’s failure of asking an accused, on conviction, what he has to say before sentencing him. The appellant herein cannot, therefore, make a case either by virtue of Section 36(6) of the 1999 Constitution as amended or Section 247 of the trial Court’s Adjectival Law as to the breach of his right to fair hearing.” Dattijo Muhammad JSC


  1. Allocutus– On the nature of an allocutus

“I am inclined to agree with learned counsel for the respondent that after conviction, the procedure of calling upon a convicted defendant for his allocutus, is a mere facility to mitigate the sentence to be imposed where the relevant law gives the Court discretion to do so.” Kekere-Ekun JSC

  1. Reasonable doubt– When no reasonable doubt is created for the benefit of the accused

“Once the Court believes the evidence fixing him at the scene of crime, no reasonable doubt is created for the benefit of the accused. See: Victor Essien Victor Vs The State (2013) 12 NWLR (Pt.1369) 465 @ 483 H; (2013) LPELR – 20749 (SC) @ 19 C-E; The State Vs Usen Okon Ekanem (2016) LPELR – 41304 (SC) @ 10-11 D-A; Ebenehi Vs The State (2009) 6 NWLR (Pt. 1138) 431 @ 448.” Kekere-Ekun JSC


LEAD JUDGMENT DELIVERED BY MUHAMMAD, J.S.C.


The charge against the appellant as accused person at the High Court of Justice, Ondo State, holden at Akure (the trial Court), was murder, contrary to Section 319 of the Criminal Code (Cap. 30, Vol. II, Laws of Ondo State of Nigeria) 1978. The appellant was alleged to have, on or about the 28th of April, 2011, at Wasimi Via Bolorunduro, murdered one Happiness Ndubueze, by striking her with matchet. The appellant pleaded not guilty and the case went into full hearing. At the end of hearing, the learned trial judge found that the prosecution proved beyond reasonable doubt, the guilt of the appellant. The learned trial judge convicted and sentenced the appellant to death by hanging.

Dissatisfied by the trial Court’s judgment, the appellant appealed to the Court of Appeal, Akure (Court below). The Court below found no merit in the appeal and it dismissed same.

The appellant proceeded to this Court on further appeal that the decision of the lower Court was in the circumstance, unwarranted and an error in law.

In this Court, the parties filed and exchanged briefs of arguments as required by this Court’s Rules.

Learned counsel for the appellant formulated the following two issues for the determination of the appeal:

  1. “Whether the lower Court was right in affirming the judgment of the trial Court when it failed to properly evaluate the evidence led and defence put up by the appellant before reaching its decision of convicting the appellant of the offence of murder and thereafter sentenced him to death by hanging (Grounds 1, 2 and 3 of the Notice of Appeal).
  2. Whether the lower Court was right in affirming the judgment of the trial Court when it failed to accord the appellant his right to fair hearing, and proceeded to sentence the appellant to death after conviction without affording him the right of Allocutus. (Ground 4 of the Notice of Appeal).”

In his amended respondent’s brief of argument, learned counsel for the respondent, equally, set out two issues for determination. They are as follows:

  1. “Whether or not the lower Court rightly affirmed the judgment of the trial Court in holding that the learned trial judge in his judgment properly evaluated the evidence led and defence put up by the appellant before reaching his decision convicting the appellant for the offence of murder and thereafter sentencing him to death by hanging.
  2. Whether or not the lower Court rightly affirmed the judgment of the trial Court in holding that the appellant’s right to fair hearing was not contravened and that the trial Court was right in proceeding to sentence the appellant to death after conviction without affording him the right of allocutus.”

I adopt appellant’s issues in considering this appeal.

The 1st issue by the appellant is on evaluation of evidence by the trial Court. Learned counsel submitted that the lower Court failed to consider the explanation and narration made by the appellant at the Police Station where defence of alibi was timeously raised in his statement. One Mr. Babatunde who gave the appellant the Cocoa Farm to brush (Afum Farm) for him at the time the incident occurred, was neither investigated nor called upon to testify as to the truthfulness of the defence of alibi raised by the appellant. Sowemimo v. The State (2004) NQLR Vol. 28, 14 at page 34 was cited in support.

The appellant showed in his statement how he got involved in any available menial jobs like selling Yoghurt, engaging in farming activities with which he was engaged with on the day of the incident. Learned counsel argued that it was inconceivable for the appellant to be in two places at a time; on a farm given to him by Babatunde (Afum Farm) to brush and be at the same time in the bush. The police never investigated or faulted these explanations or alibi, which is tantamount to admission on its part. Learned counsel cited two cardinal principles of the law that (a) a Court must consider all defences raised by the accused, no matter how stupid or unreasonable and (b) no claim of alibi should be disregarded. Learned counsel cited in support the cases of Bolanle v. The State (2010) NCC Vol.5, at pages 1 & 10; Udoebre v. The State (2006) NSCQLR, Vol.6 page 755 at p.766. The explanation of alibi made by the appellant casts whole world of doubt on the respondent and it ought to have raised doubt in the mind of the lower Court which ought to have been resolved in favour of the appellant, resulting in his acquittal. Onuchukwu v. The State (1998) 4 NWLR (Pt. 547) 576 at 592; Ajose v. State (2002) 7 NWLR (Pt. 766) 302 at 319 D – E, were cited.

Learned counsel for the appellant submits further that the trial Court relied on oral evidence of the appellant to convict him and failed to consider the first in time of the statements made at the police station where the defence of alibi was timeously raised and this would lead to miscarriage of justice. PW2 gave evidence that the appellant was brought to the station with sharp cutlass but the trial Court failed to consider that a person returning from the farm where he had worked would definitely be holding the cutlass with which he worked. Learned counsel urged this Court to hold on issue No.1 on the defence of alibi.

Issue No. 2 is on whether the Court below was right when it affirmed the judgment of the trial Court when it failed to accord the appellant right to fair hearing and the right to allocutus.

The submissions of learned counsel for the appellant on issue 2, are that appellant was not asked, before conviction, if he had anything to say and that the trial Court proceeded to sentence him to death by hanging perfunctorily. Learned counsel submitted that the appellant was not allowed allocutus.

Learned counsel argued further, that if the appellant was allowed allocutus. Counsel to the appellant would have had the opportunity of drawing the learned judge’s attention to the record of the appellant in pleading for a lighter sentence for the appellant. The right to allocutus being statutory is provided for in Section 247 of the Criminal Code Law which is similar to Section 247 of the Criminal Procedure Act, Cap. C41, LFN, 2004. Learned counsel argued that the right is constitutional, Section 36 (6)(b) of the Constitution and failure of the trial Court to accord the appellant that opportunity is a deprivation of vital facility to put forward his case which is tantamount to flagrant violation of his right to fair hearing. Learned counsel cited in support, the cases of Ogboh v. FRN, NSCQLR Vol. 10 (2002) 498 at pp. 509 – 511; Ndukauba v. Kolomo, NSQLR Vol. 21 (2005) 16 at p.36, among others.

He urged this Court to set aside the judgment of the Court below by resolving this issue in favour of the appellant.

In his amended brief of argument, learned counsel for the respondent, Mr. Nylander, who formulated two issues, which are similar to the issues formulated by the appellant, submitted on issue one that the submission of the appellant with regard to this issue is misplaced, misdirected and legally unfounded as the appellant has failed to disclose how the alleged unproven miscarriage of justice was occasioned on the appellant. He stated that by the nature and character of the standard of proof of alibi, same does not require proof beyond reasonable doubt but on the balance of probabilities. He referred to the case of Odu v. State (2001) 10 NWLR (Pt. 722) 668. Learned counsel submitted further that it was the duty of the defendant to call Fesi Babatunde to corroborate his alleged alibi and not the duty of the prosecution as the burden of proof of alibi is on the accused person. He referred to the case of Tanko v. State (2008) 16 NWLR (Pt.1114) 591; Ayan v. State (2013) 15 NWLR (Pt.1376) 34.

Learned counsel for the respondent submitted further that in this case, the testimony of the prosecution witnesses and the evidence given by the appellant himself has specifically and unequivocally pinned down the accused person to the scene of crime and as such, failure of the police to investigate the alibi of the appellant will not result in the acquittal of the accused and that defence must fail as it cannot avail the appellant. He supported this submission with the case of Ntam v. State (2003) 11 NWLR (Pt.830) 142. He urged the Court to resolve this issue against the appellant and in favour of the respondent.

On the second issue (issue two), the learned counsel for the respondent submitted that nowhere in Section 247 of the Criminal Procedure Law of Ondo State, 2006, which governs the making of allocutus in a criminal trial, is allocutus made mandatory nor its absence made to invalidate a proceeding. And, that the omission of the registrar to ask an accused to make allocutus or his being so asked by the judge or magistrate, instead of the registrar, shall have no effect on the validity of the proceedings. Learned counsel submitted that the plea of allocutus could not have availed the appellant as held by the lower Court which he urged this Court to affirm as it is no sufficient ground to upturn the decision of the trial Court. He submitted further that any explanation by way of allocutus, if accepted, can only go to mitigate a sentence and cannot avail the accused a defence to the charge. Further, allocutus does not constitute a fundamental right guaranteed under the Nigerian Constitution and such defence cannot avail a person already convicted for an offence with a mandatory statutory sentence as a fundamental right.

Learned counsel urged this Court to affirm the decision of the lower Court and to resolve this issue in favour of the respondent and against the appellant.

My Lords, the first issue by the appellant is on assessment or evaluation of evidence by the trial Court which appellant alleged it failed to do and inspite of that, the Court below affirmed the trial Court’s decision It is glaringly clear from the Record of Appeal (page 152) where the Court below held, inter alia:

“In evaluating the evidence of the prosecution’s witnesses and that of the accused person, the learned trial judge was able to consider the defence of alibi put up by the accused and made it clear in his judgment on page 60 of the record… the spirited efforts by the counsel for the appellant to impeach those findings were exercises in futility. It is obvious from the above excerpts, that the lower Court believed and accepted the evidence of PW1 fixing the appellant at the scene of crime and the oral evidence of the accused person/appellant before the Court fixing himself at the scene of the crime. The accused person admitted in his oral evidence before the Court that the incident occurred at Wasimi Village and he was taken to the scene of crime by the PW2, thereby fixing himself at the locus criminis. These findings are unimpeachable. In my view, the learned trial Court carefully considered and evaluated the evidence in the case and has come to the correct decision that the defence of alibi set up by the accused person has been demolished.” (underlining for emphasis)

I think, the role of a trial Court is not only to take evidence and watch the demeanour of witnesses, it has to primarily and fundamentally assess or evaluate the evidence so placed before it. This Court has repeatedly, stated the correct position of the law on evaluation of evidence by trial Courts that before reaching a conclusion, the learned trial judge is required by practice to set up an imaginary scale wherein he places the evidence adduced by the plaintiff or prosecution, as the case may be, on one side of the scale and equally places the evidence adduced by the defendant/accused, as the case may be, on the other side of the scale and weigh both together to consider the probative value in determining where the imaginary scale tilts and preponderates. See: Mogaji v. Odofin (1978) 4 SC 91 at 98; Sanusi v. Ameyogun (1992) 4 NWLR (Pt.237) 527.

Thus, the ascription of probative value to the evidence of each witness is a matter solely for the trial Court and it is not the business of the appeal Court to substitute its own views of undisputed facts for views of the trial Court. That was why the Court below found that the learned trial judge carefully considered and evaluated the evidence in the case and arrived at correct decision. I find it difficult to fault the decision taken by the Court below on the assessment or evaluation of evidence placed before the trial Court by the parties. This issue is thus, determined against the appellant and in favour of the respondent.

Appellant’s issue No.2 is that the appellant was not afforded the right of allocutus by the trial Court and went ahead to convict and sentence him to death and it was wrong of the Court below to have affirmed the conviction and sentence.

My noble Lords may wish to recall that this Court, has defined allocutus in many cases, the most recent of which is the case of Lucky v. The State (2016) LPELR 40541 where it was held that allocutus is a plea in mitigation of the punishment richly deserved by appellant for the offence with which he was charged and for which he was tried and found guilty and convicted accordingly.

Learned counsel for the appellant drew this Court’s attention to the provision of Section 247 of the Criminal Code Law of Ondo State, 2006, which is similar to Section 247 of the Criminal Procedure Act, Cap C.41 LFN, 2004 to say that allocutus is a statutory right and forms an integral part of hearing procedure in criminal trials and as part of the convict’s defence. He submitted that the right to allocutus is recognized by the Constitution in Section 36 (6) (b) which confers on a person charged with a criminal offence, a right to adequate facilities for the preparation of his defence and thus, allocutus is a facility for defence.

But, permit me my Lords, to start by setting out the provision of Section 247 of the Criminal Procedure Act (supra):

  1. Accused to be asked whether he has anything to say before sentence.

“If the Court convicts the accused person or if he pleads guilty, it shall be the duty of the registrar to ask the accused whether he has anything to say why sentence should not be passed on him according to law, but the omission of the registrar to ask him or his being so asked by the judge or magistrate instead of the registrar shall have no effect on the validity of the proceedings.” (underlining for emphasis).

Learned counsel for the respondent submitted that nowhere in Section 247 of the Criminal Procedure Law of Ondo State, 2006 (which corresponds with same Section in the CPA, Cap. C.41, LFN 2004) which governs the making of allocutus in a Criminal trial, mandatory nor its absence made to invalidate a proceeding. I cannot agree more and that is the correct position of the law. Allocutus is not a defence for the accused person neither is it necessary on a trial Court to invoke it. It is only desirable in consideration of factors that may influence the mitigation of heavy punishment to a lighter one.

Thus, in this case, the failure of the trial Court to avail the appellant such an opportunity is not sufficient ground to upturn the trial Court’s decision. See the case of Ogbeide v. COP(1964) 2 All NLR 176; State v. Babangida (2013) LPELR 20590.

Allocutus is not a right in law. It is not a defence. Learned counsel for the appellant was in my view, overstretching the Constitutional law of fundamental right by attempting to interpret and classify allocutus a fundamental right under the Nigerian law of fair hearing. This issue lacks merit and it is hereby determined in favour of the respondent and against the appellant.

In conclusion, this appeal lacks merit. Further, there is placed before this Court, nothing to make me depart from the concurrent decisions of the two lower Courts. The appeal is accordingly dismissed. I affirm the lower Court’s decision.


PETER-ODILI, J.S.C.

I am in complete agreement with my learned brother, Ibrahim Tanko Muhammad JSC and to register the support in the reasonings from which the decision came, I shall make some remarks.

This is an appeal by the appellant against the judgment of the Court of Appeal, Akure Division or Court below or Lower Court, Coram: Mojeed Adekunle Owoade, Mohammed A. Danjuma and James Shehu Abiriyi JJCA wherein the Court below on 8th December, 2014 affirmed the decision of the trial High Court holden at Akure Per O. O. Akeredolu J., (as he then was) on 17th day of July, 2013 in which the trial Court convicted and sentenced the appellant to death for the offence of Murder contrary to Section 319 (1) of the Criminal Code, Cap.30, Vol. II Laws of Ondo State of Nigeria, 1978.

The detailed facts culminating in this appeal are well captured in the lead judgment and I shall not repeat them unless there comes a need to refer to any part thereof.

On the 6th day of December 2018 date of hearing, learned counsel for the appellant, Mrs. Funmi Quadri adopted the brief of argument filed on 12/3/2015 and in it were identified two issues thus:-

  1. Whether the Lower Court was right in affirming the judgment of the trial Court when it failed to properly evaluate the evidence led and defence put up by the appellant before reaching its decision of convicting the appellant of the offence of murder and thereafter sentenced him to death by hanging. (Grounds 1, 2 and 3 of the Notice of Appeal).

Whether the Lower Court was right in affirming the judgment of the trial Court when it failed to accord the appellant its right to fair hearing, and proceeded to sentence the appellant to death after conviction without affording him the right of Allocutus. (Ground 4 of the Notice of Appeal).

Learned counsel for the respondent, L. A. O. Nylander Esq., adopted its brief of argument filed on 14/3/17 and deemed filed on 1/11/17 in which were distilled three issues for determination which are as follows:-

  1. Whether in view of the evidence led at the trial by the parties, the prosecution proved is case against the appellant beyond reasonable doubt.
  2. Whether in view of the appellant’s right to fair hearing, the trial Court was right in proceeding to sentence the appellant to death after conviction without affording him right of allocutus.
  3. Whether the learned trial judge in his judgment properly evaluated the evidence led and defence put up before reaching his decision to convict the appellant of the offence of murder and thereafter sentenced him to death by hanging.

I find it easier to use the issues as crafted by the respondent which I shall make use of and all together.

ISSUES 1, 2 & 3:

  1. Whether in view of the evidence led at the trial by the parties the prosecution proved its case against the appellant beyond reasonable doubt.
  2. Whether in view of the appellant’s right to fair hearing, the trial Court was right in proceeding to sentence the appellant to death after conviction without affording him right of allocutus.
  3. Whether the learned trial judge in his Judgment properly evaluated the evidence led and defence put up before reaching his decision to convict the appellant of the offence of murder and thereafter sentenced him to death by hanging.

Learned counsel for the appellant contended that he denied matcheting the deceased person in his statement at the police station and the Courts below failed to consider the narration of the appellant and the alibi he raised timeously which ought to have exculpated him from the crime he faced and was convicted on. He cited Sowemimo v The State (2004) NSCQLR Vol.18 page 24 at 34; Bolanle v The State NCC Vol.5 (2010) page 1 at 10; Udoebre v State NSCQLR Vol. 6 (2006) 755 at 766; Onuchukwu v The State (1998) 4 NWLR (Pt. 547) 576 at 592; Ajose v The State (2002) 7 NWLR (Pt.766) 302 at 319.

It was contended for the appellant that if he was allowed allocutus, counsel for appellant would have had the opportunity of drawing the learned trial judge’s attention to the record of the appellant in pleading for a lighter sentence for the appellant. That the right to allocutus being a statutory right is provided for in Section 247 of the Criminal Code Law similar to Section 247 of the Criminal Procedure Act Cap. C41 LFN 2004.

That the flagrant violation of the appellant’s right to fair hearing which renders the proceedings and judgment liable to be set aside as a nullity. He cited Ogboh v FRN NSCQLR Vol. 10 (2002) page 498 at 509-511; Ndukauba v Kolomo NSCQLR Vol. 21 (2005) page 16 at    36; Tsokwa Motors (Nig.) Ltd v UBA PLC NSCQLR Vol.33 (2008) Page 33 at 69 etc.

Learned counsel for the respondent submitted that the plea of alibi by the appellant is not helpful to him as the testimony of prosecution witnesses and the evidence given by the appellant himself specifically and unequivocally pinned the appellant to the scene and as such the failure of the police to investigate the alibi will not result in the acquittal of the accused. He cited Tanko v State (2008) 16 NWLR (Pt. 1114) 591; Ayan v State (2013) 15 NWLR (Pt.1376) 34; Ntam v State (2003) 11 NWLR (Pt.830) 142; Agbanyi v The State (1995) 1 NWLR (Pt.369) 1 at 5.

That the plea of allocutus could not have availed the appellant as upon the finding of guilt for the offence of murder, a mandatory sentence of death by hanging is statutory as prescribed by virtue of Section 319 (1) of the Criminal Code Law of Ondo State Cap.37, Vol.1, 2006; Ogbeide v COP (1964) 2 All NLR 176; State v Babangida (2013) LPELR 20590; Section 36 (6) (b) of the 1999 Constitution of the Federal Republic of Nigeria; Cyriacus Ogidi & 3 Ors v The State (2005) 21 NSCQR 302 page 334; NDIC v Okem Enterprises Ltd (2004) 10 NWLR (Pt.880) 107.

The appellant’s submission that his plea of alibi should stand in good stead to get him off the hook and that because it was not investigated by the prosecution though the defence was raised early enough with details. Indeed, on the face of such proffered alibi made timeously what the appellant contends would represent the law but the exception to that general rule is that where the evidence adduced at the trial pins the accused at the scene of crime at the material time, the later situation automatically demolishes the defence of alibi raised and the duty placed on the prosecution to investigate and dislodge or confirm the alibi is discharged as by the nature of the standard of proof of alibi same has the burden of proof on the balance of probabilities. I place reliance on the cases of Onuchukwu v The State (1998) 4 NWLR (Pt. 547) 576 at 592; Udoebre v The State NSCQLR Vol.6 (2006) page 755 at 766; Odu v State (2001) 10 NWLR (Pt.722) 668; Tanko v State (2008) 16 NWLR (Pt.1114) 591; Ayan v State (2013) 15 NWLR (Pt. 1376) 34; Ntam v State (2003) 11 NWLR (Pt. 830) 142; Agbanyi v The State (1995) 1 NWLR (Pt.369) 1 at 5.

It is difficult not to go along with the stand of learned counsel for the respondent that the prosecution produced evidence that fixed the accused/appellant to the scene of crime at the time the crime was committed and that the appellant set out conflicting versions of his whereabouts at the time under consideration as can be seen in his extra judicial statement and even in his defence in Court

In this regard I shall restate the oral testimony of the appellant at the trial Court as DW1 thus:-

“My name is Chidi Edwin. I lived at Wasimi Village. I did not kill Happiness Ndubueze, I only cut her with cutlass because she stole my things. I cannot remember what happened at Wasimi. What happened at Wasimi took place in April of the year. What happened is that the lady stole my thing, what she stole is my smoke N25,000, groundnut oil, she cut my (sic) neck. She is like smoke. She entered me. She stole my cloth, she stole my slippers. I warned her not to steal my things a period (sic). This person who used to steal my things, her name is Rose. I don’t know her father’s name. I use to do any work business. I sell yoghurt. I also work as a bricklayer, work as Gardner. On the day the incident happened I went to the farm. On my coming, I saw some people they hold me, I did not do anything to them. I told them I cut her. They took me to the station and I said I cut her because she stole my things. My things were with her. I made statement to the police, my statement is that she stole my thins and I cut her finish. It is not police that collected cutlass from me. It is the people that held me that whether it from me (sic). The said it is the knife I used to cut her the people who collected the knife from me did not meet me where I cut her. Police took me to the place I cut the lady. They did not take me to the farm where I was working.”

He stated further under cross-examination thus:

“I said I am the one who cut the deceased. Because she stole my things I cut her neck and hands. I did not count the number of times I cut her. I had smoked hemp and I was annoyed. I did not tender to the police that she stole my things if the mistake I made.

PW2 in his evidence testified on page 17 of the record thus:

… I took him back to the scene of the crime together with the husband of the complainant (sic) because the woman in question was still in the hospital she could met (sic) follow us to the scene. I took the suspect and the husband of the complainant (sic) to the scene.

On getting to the scene I recovered bathroom slippers, blood stained cloths, one polythene bag containing weed suspected to be Indian hemp and one voting identity card…

The evidence of the PW1 at the Court of trial is as follows:

…While I recorded statement of the accused under the words of cause. I later visited scene (sic) of crime at Wasimi Village.”

He stated further under cross-examination stated thus:

…I visited the scene. I did not visit the farm but the incident occurred long the road to the farm… I took the accused to the scene of crime. I did not visit the farm of the accused. He only said his farm is down there.”

The learned trial judge stated thus:-

But the general principle is that the accused must present his alibi and once he had given full particulars of the alibi, the prosecution must investigate it to confirm it or disprove it. Failure to investigate when faced with the full facts of the alibi will vitiate the prosecution.

Prosecution is ordinarily required to investigate the alibi of the accused by visiting the farm of Fesi Babatunde, however, based on the peculiar facts of this case, a visit to the farm would not have added any value to the defence because the evidence of PW1 under cross-examination that the incident occurred on the way to the farm was not controverted. The argument of learned defence counsel has also been defeated by the oral evidence of the accused who said he cut the deceased with a cutlass. The evidence of the accused fixes him to the scene of crime. The charge is that the incident occurred at Wasimi Village and the accused also said it occurred at Wasimi village. The Omission to state the exact time the incident occurred is not fatal. The submission of the learned counsel that the prosecution did not incriminate the accused as (sic) it did not go beyond showing that PW1 visited the scene in company of the accused in unfounded.”

It was easy as affirmed by the Court below why the alibi was despatched without difficulty by the trial Court as nothing useful could be done with a neither here nor there pieces of versions of narration by the appellant at his trial. I shall quote excerpts of the extra judicial statement of the appellant to buttress the point I have made above and it is as follows:-

“I am a native of Ejara Street in Abakaliki of Ejara Primary School in Abakaliki and completed my primary education, but I did not further my studies because of financial problem. I joined casual work after primary school education and later came to Ondo State about fifteen years ago and stayed with my father because my mother died when I was very young. I know the deceased, One Roseline and I know her husband too because we live in the same compound but what pains me most was that whenever I am eating it will always enter Roseline and her husband mouth but I cannot tell her. The husband will turn to black snake while the wife turn to cobra snake and collect all the food I ate to their stomach but I cannot tell anyone because it is spiritual. On the 29th of April at about 7 a.m., I went to a farm which one Fesi Babatunde gave me to brush but I left the farm at about 3 p.m. while some people arrested me that one woman called Roseline died and I am the person that killed her and they took me to Bolorunduro Police Station. I went to the farm alone and it was a cocoa farm and I left alone when they came to arrest me that I killed one woman called Roseline. The second thing that makes me to quarrel with Roseline whenever she washed her cloth finish, she will spread it on top of sink in my house, and I always warn her for that. I am not the person that killed her and did not know anything about her death. My slippers were found at the back of one Cassette Secondary School and not where the deceased was killed. I was only informed that one woman called Roseline was at one hospital for Ondo but they did not tame there, I was not informed when the woman died. This is all my statement.” (Underlining mine).

On the matter whether the fair hearing right of the appellant was compromised by the allocutus not being made on his behalf. That might be the effect of failure of allocutus within a given circumstance because of the facts surrounding. That certainly would not be the case where, upon a conviction with a mandatory sentence of death such as murder as in the case in hand. This is so because allocutus would not mitigate the sentence of death which naturally flows with a conviction in a charge of murder as the penalty is a capital sentence.

See Section 247 of the Criminal Procedure Law of Ondo State 2006; Section 319 (1) of the Criminal Code Law of Ondo State Cap.37 Vol 1, 2006; Ogbeide v COP (1964) 2 All NLR 176; State v Babangida (2013) LPELR-20590.

The point has to be made that by the provisions of Section 36 (6) of the 1999 Constitution of the Federal Republic of Nigeria, allocutus does not constitute a fundamental right guaranteed under the Nigeria Constitution as the right of allocutus cannot avail not being accruable to a person already convicted for an offence with a mandatory statutory sentence as a fundamental right as upon that conviction, the judge’s hands are tied on the impending punishment to pronounce. At that point of sentencing no discretion is left for the judge on the conviction of murder than the only punishment provided mandatorily by the law which is death by hanging. In this, I refer to Cyriacus Ogidi & 3 Ors v The State (2005) 21 NSCQR 302 at 334; NDIC v Okem Enterprises Ltd (2004) 10 NWLR (Pt.880) 107.

The bottom line is that by not asking the appellant or counsel on his behalf to make an allocutus the fair hearing rights of the appellant have not been infringed because what he would have said if he made an allocutus would not change the decision the judge was obligated to deliver in sentencing. The situation is well out cut that the appeal just cannot be seen otherwise than unmeritorious. From the foregoing and the fuller and better reasoned lead judgment.

The appeal is dismissed as I abide by the consequential orders made.


MUSA DATTIJO MUHAMMAD, J.S.C.

I had a preview of the lead judgment of my learned brother IBRAHIM TANKO MUHAMMAD JSC just delivered. I agree entirely with the reasoning and conclusion therein that the appeal lacks merit and that same be dismissed.

Evaluation of evidence and ascription of probative value to same, it is trite, is the primary function of the trial Court that had the opportunity of observing the witnesses while testifying. The lower Court is right to have found that the trial Court had made effective use of the privilege it had in arriving at the findings of guilt of the appellant.

Section 36 of the 1999 Constitution provide requirements non compliance with which by a Court will constitute the breach of the appellant’s right to fair hearing. Allocutus is not one of these requirements. Even Section 247 of the Criminal Procedure Law of Ondo State which is similar to Section 247 of the Criminal Procedure Act Cap C41 Laws of the Federation 2004 does not make an issue out of a Court’s failure of asking an accused, on conviction, what he has to say before sentencing him. The appellant herein cannot, therefore, make a case either by virtue of Section 36(6) of the 1999 Constitution as amended or Section 247 of the trial Court’s Adjectival Law as to the breach of his right to fair hearing.

It is for the foregoing and more so the fuller reasons adumbrated in the lead judgment that I also dismiss the appeal and further affirm the judgment of the trial Court convicting and sentencing the appellant for murder.


KEKERE-EKUN, J.S.C.

I have had a preview of the judgment of my learned brother, Ibrahim Tanko Muhammad, JSC just delivered. I agreed entirely with the reasoning and conclusion reached therein.

On the first issue for determination, not only was there sufficient circumstantial evidence linking the appellant with the commission of the offence, the deceased made a dying declaration to PW2 stating that it was the appellant who cut her with a matchet. The appellant, in his testimony before the Court, confessed to cutting the deceased with a matchet and admitted interalia, that “I cut her neck and hands. I did not count the number of times I cut her” As rightly found by the Court below, there was no intervening event between the time he cut her and when she eventually gave up the ghost to suggest any other cause of death.

Having admitted that he cut the deceased with a matchet, his defence of alibi collapsed, as he had fixed himself at the scene. The alleged failure of the prosecution to investigate the alibi becomes irrelevant. Once the Court believes the evidence fixing him at the scene of crime, no reasonable doubt is created for the benefit of the accused. See: Victor Essien Victor Vs The State (2013) 12 NWLR (Pt.1369) 465 @ 483 H; (2013) LPELR – 20749 (SC) @ 19 C-E; The State Vs Usen Okon Ekanem (2016) LPELR – 41304 (SC) @ 10-11 D-A; Ebenehi Vs The State (2009) 6 NWLR (Pt. 1138) 431 @ 448.

All the ingredients of the offence of murder were proved beyond reasonable doubt by the prosecution. The lower Court was therefore right to have affirmed the appellant’s conviction.

It has also been argued on behalf of the appellant that the failure of the trial Court to call upon him for his allocutus before sentence was passed on him amounts to a breach of his fundamental right to fair hearing.

Section 36 (6) of the 1999 Constitution, as amended, provides:

“36(6) Every person charged with a criminal offence shall be entitled to –

(a) To be informed promptly, in the language that he understands and in detail of the nature of the offence;

(b) To be given adequate time and facilities for the preparation of his defence;

(c) To defend himself in person or by a legal practitioner of his own choice;

(d) To examine in person or by his legal practitioner the witnesses called by the prosecution before any Court or Tribunal and obtain the attendance and carry out the examination of witnesses to testify on his behalf before the Court on the same conditions as those applying to the witnesses called by the prosecution; and

(e) Have, without payment, the assistance of an interpreter if he cannot understand the language used at the trial of the offence.”

The provision sets out in very clear terms the essential elements of fair hearing in a criminal trial. The appellant has not alleged that any of the provision of Section 36 (6) of the Constitution were breached during the course of his trial. I am inclined to agree with learned counsel for the respondent that after conviction, the procedure of calling upon a convicted defendant for his allocutus, is a mere facility to mitigate the sentence to be imposed where the relevant law gives the Court discretion to do so.

Section 319 (1) of the Criminal Code, Cap. 30 Vol. II, Laws of Ondo State of Nigeria, 1978 provides for a mandatory sentence of death for the offence of murder. The Court has no discretion to mitigate the sentence. Furthermore, Section 247 of the Criminal Procedure Law of Ondo State, 2006 (which is in pari materia with Section 247 of the Criminal Procedure Act Cap. C.41 LFN 2004), provides for allocutus in the following terms:

“247 Accused to be asked whether he has anything to say before sentence.

If the Court convicts the accused person or if he pleads guilty, it shall be the duty of the registrar to ask the accused whether he has anything to say why sentence should not be passed on him according to law but the omission of the registrar so to ask him or his being so asked by the Judge or Magistrate instead of the registrar, shall have no effect on the validity of the proceedings.” (Underlining mine for emphasis).

The underlined portion of the section is a complete answer to the appellant’s second issue for determination. It is accordingly revolved against him.

For these and the fuller reasons stated in the lead judgment, I find this appeal to be devoid of merit. I dismiss it and affirm the judgment of the lower Court. Appeal dismissed.


SANUSI, J.S.C.

The Judgment just rendered by my learned brother I. T. Muhammad JSC has been made available to me before now. His Lordship had addressed the issues canvassed by learned counsel to the parties before the conclusion that this appeal is devoid of merit. His reasoning and conclusion are agreeable to me that this appeal lacks merit. I too accordingly dismiss it and affirm the decision of the Court below. Appeal dismissed.


Appearances:

Funmi Quadri (Mrs.) with her, Dayo Odunlami (Mrs.), Seun Quadri and Juliet Chinda For  Appellant(s)

L.A.O. Nylander with him, J. F. Adams For  Respondent(s)