UDO V THE STATE

UDO V THE STATE

IN THE COURT OF APPEAL
IN THE CALABAR JUDICIAL DIVISION
HOLDEN AT CALABAR

ON MONDAY, 22ND JUNE, 2015


Appeal No: CA/C/92C/2014

CITATION:

Before Their Lordships:

CHIOMA EGONDU NWOSU-IHEME

ONYEKACHI AJA OTISI

PAUL OBI ELECHI


BETWEEN

ETIM ETIM UDO
(APPELLANT)

AND

THE STATE
(RESPONDENT)


PRONOUNCEMENT


A. CRIMINAL LAW AND PROCEDURE
1. Defence of Alibi – When the defence of alibi is defeated
At what point will the defence of alibi be deemed unnecessary to investigate

Supreme Court in Ayan vs. The State (2013) 55 NSCQR P.228-229 held that where the presence of an accused person is fixed at the scene of crime, the defence of alibi no matter how beautifully put up is defeated and need no investigation. Once a person is positively identified and pinned to the locus criminis, alibi cannot avail him. Per NWOSU-IHEME, JCA. read in context

2. Defence of Alibi – The burden of proving defence of alibi placed on the accused
How alibi is established and on whom lies the burden of proving alibi

A defence of Alibi by an accused person is a combined defence of lack of “actus reus” and “mens rea”, ie that he was not at the scene of crime and was therefore, neither in a position to have committed the offence alleged nor participated in its commission nor even had the intention of committing the crime. Therefore, being a matter or fact peculiarly within his personal knowledge, an accused who raises it has the burden of leading evidence of the fact of the Alibi even though the primary or general burden of proof of guilt remains throughout on the prosecution and does not shift. See Gachi vs. State (1965) NMLR P.333, Odidika vs. State (1977) 2 SC. 21, Ukwunnenyi vs. State (1989) 4 NWLR (PT.114) 131 at 144. Per NWOSU-IHEME, JCA. read in context

3. Defence of Alibi – When the defence of an alibi will not be successful
Effect of the plea of alibi where there is an eye witness

Where an accused sets up an alibi as a defence, the mere allegation that he was not at the scene of crime is not enough. See Yanor vs. State (1965) 1 All NLR. 193, Salami vs. State (1988) 3 NWLR (Pt.85) 670 at 677. Once the evidence of an eye witness to any crime fixes an accused/Appellant at the scene of crime and identifies him/her as the perpetrator of the crime, there can be no defence of alibi in the circumstances. See Aliyu vs. The State (2013) 54 NSCQR 509 page 515-516. Per NWOSU-IHEME, JCA. read in context

4. Guilt of an Accused Person – Duty of the prosecution to prove the guilt of an accused person

It is well settled that in a criminal trial, the prosecution has a duty to prove the guilt of the accused person for the offence for which he is charged beyond reasonable doubt. Per OTISI, JCA. read in context

5. Offence of Murder – What the success or failure of the prosecution depends on in a murder case
Essential ingredients that must be proved by the prosecution to ground a conviction for murder

Whether this appeal succeeds or fails depends on if the prosecution proved beyond reasonable doubt the death of the deceased, that the act of the Appellant caused the death of the deceased and that the act of the Appellant was intended to cause death or grievous bodily harm. See Okoro vs. The State (2012) Vol.207 LRCN pg.108 at 117. Per NWOSU-IHEME, JCA. read in context

B. EVIDENCE
6. Evidence of an Eye Witness – The importance attached to the evidence of an eye witness in law
When evidence of eyewitness will be considered the best form of evidence

The evidence of the PW1 was very clear, direct and was unequivocal. It clearly proved and laid to rest the ingredients of the offence of murder as spelt out in the case of Okoro vs. The State (supra). Her evidence in law is eye witness evidence which is regarded as the best evidence in criminal trial. See Shurumo vs. The State (2011) vol. 196 LRCN 199 at 208. Per NWOSU-IHEME, JCA. read in context

7. Evidence of a Blood Relation – How evidence given by a blood relation doesn’t it inadmissible
Principles of law on evidence of relatives in criminal prosecution

On the contention by counsel for the Appellant that the PW1 was related to the deceased. The law is that as long as such evidence is credible and relevant, the trial Court is at liberty to accept such evidence.

“The fact that the witness for the prosecution had been relations or friends of the deceased does not make their evidence inadmissible, so long as such evidence had been carefully considered by the trial Court and found to be direct, unassailable and true…” Per NWOSU-IHEME, JCA. read in context

8. Evidence of a Single Witness – How police evidence cannot override the real evidence of an eye witness
Whether a court can convict on the evidence of a single witness

On the contention that the I.P.O did not testify in this case. It should be noted that though the evidence of the I.P.O is most times desirable but criminal proceedings do not include police investigation as an act. Police investigation no matter how articulate cannot override or take the place of real evidence of an eye witness or victim of crime. See IGP vs. FAWEHINMI (2002) 5 SCNJ pg. 103 at 109.

The evidence of an eye witness or eye witnesses depending on the circumstances of a case is enough to ground a conviction. See Ani & Anor vs. The State (2003) 11 NWLR (Pt. 830) 142 at 150. Per NWOSU-IHEME, JCA. read in context

9. Medical Evidence – What a medical evidence being used to prove cause of death must show

For a trial Court to rely on medical evidence to prove the cause of death of the deceased, such medical evidence must show clearly that the injury inflicted on the deceased caused the death without any intervening cause or causes culminating in the death of the deceased. See Oforlete vs. The State (2001) 12 NWLR (Pt.681) P.415 at 420. Per NWOSU-IHEME, JCA. read in context

10. Proof Beyond Reasonable Doubt – What proof beyond reasonable doubt is
Whether proof beyond reasonable doubt means proof beyond all shadow of doubt

The expression proof beyond reasonable doubt however does not mean proof beyond a shadow of doubt. It simply means that there is credible evidence upon which the Court can safely convict, even if it is upon the evidence of a single eye witness; Afolalu v State (2010) 6-7 MJSC 187; Akalezi v. State (1993) 2 SCNJ 19; Akpabio v. State (1994) 7 NWLR (Pt.359) 635. Per OTISI, JCA. read in context


LEAD JUDGMENT DELIVERED BY NWOSU-IHEME, JCA


The Appellant Etim Etim Udo was arraigned before Hon. Justice Stephen Okon of the High Court of Akwa Ibom state, sitting in Ikot Ekpene on a one count charge of murder contrary to Section 326(1) of the Criminal Code Cap. 38 vol.2, Laws of Akwa Ibom State of Nigeria, 2000.

The Appellant who was the 5th accused person at the trial Court was charged along with four other accused persons in Charge No.HT/1c/2013.

The prosecution’s case against the accused person was that on the 5th day of July, 2003 at Abiakpo Edem Idim, Ikot Ekpene Judicial Division murdered one Okon Tom Akpan.

The case was at different times taken by three other Judges before fresh plea was taken on the 16th of July, 2009 before Stephen Okon J. Three witnesses testified for the prosecution and various Exhibits were tendered.

The prosecution’s case against the Appellant Etim Etim Udo as presented by Emem Alphonsus Udo who testified as PW1 at the trial Court was that on 5th day of July, 2003 at about 10.00pm the deceased Okon Tom Akpan, whom she described as a Dry Cleaner was ironing some cloths in his living room, while she Emem Alphonsus Udo slept in her own room close to the living room in the house of the deceased.

At about 10.00pm, someone knocked on the door and the deceased asked who the person was. The person answered that he was Etim Etim Udo the Appellant. The deceased asked what he was looking for at that time of the night to which Etim Udo replied that he came to collect his clothes which he intended to use the following morning. The deceased then told him to come back the following morning. The Appellant persisted in his plea that he needed the cloth the following morning. The PW1 described the deceased as a Dry Cleaner at Ikot Ekpene General Hospital and also does his dry cleaning work at home. The deceased eventually opened the door for the Appellant. She heard the deceased saying ” what have I done to you,” after that, she did not hear the voice of the deceased again. She said because her room was very close to the living room (parlour) she heard all that transpired. When she didn’t hear the voice of the deceased again, she opened the door of her room and came out to the living room. There in the living room, she saw the Appellant and the other four convicts because there was electricity as well as moonlight on that fateful night. When she came out of her room, she pleaded with the Appellant and the other four convicts to leave the deceased alone, the 3rd convict Ofonime Usua Udom pointed a gun at her threatened to kill her if she continued pleading for the deceased. The Appellant and the four convicts then pushed her inside her room and continued beating the deceased whom they eventually took away. She banged on the door and eventually forced the door open. She raised an alarm which attracted a lot of people. The crowd tried to confront the Appellant and his aforementioned group but they scared the crowd away by throwing bottles on them and threatened to kill anybody who dared to come near them. The Appellant and his gang took the deceased to the compound of the father of the 1st convict. There they continued beating the deceased, inflicted cuts all over him until he died. When they saw the crowd, they deposited the deceased by the side of the road and took to their heels.

In a considered judgment delivered on the 24th June, 2013, the Appellant along with four others were found guilty of the offence of murder as charged. They were convicted and sentenced to death by hanging. The Appellant was dissatisfied with that judgement and has appealed to this Court.

The Appellant formulated three issues for determination which read:

“1. Whether or not the plea of alibi put up by the Appellant was properly investigated, rebutted and considered before being outrightly rejected by the learned trial Judge?

2. Considering the state of the evidence particularly the scrappy, unreliable, terse and baseless evidence led by the prosecution, whether or not the learned trial Judge properly evaluated the evidence of PW1 which he utilized in convicting the Appellant?

3. Whether or not the prosecution succeeded in proving the essential ingredients of murder under S.326 (1) of the criminal code of Akwa Ibom state to justify the verdict of guilt entered by the lower Court against the Appellant.”

The Respondent on the other hand formulated two issues for determination thus:

1. “Whether the prosecution has proved the offence of murder punishable under Section 326(1) of the Criminal Code, Cap.38, vol. 2, Laws of Akwa Ibom state of Nigeria 2000, against the Appellant/5th accused person.

2. Whether the defence of alibi raised by the Appellant/5th accused person was properly considered and rebutted by the learned trial Judge.

Taking the issues, learned counsel for the Appellant Nta A. Nta Esq contended in summary that the prosecution did not prove the guilt of the Appellant in the alleged murder of Okon Tom Akpan taking into cognizance the essential ingredients required to prove the offence of murder. The prosecution he argued did not discharge the burden placed on it i.e proving the offence of murder beyond reasonable doubt.

He submitted that the defence of alibi was not investigated. That the Police officer who investigated this case ought to have been called to testify whether the PW1 was locked up in her room during the commission of the offence and whether or not she broke the door to discover that the deceased had been taken away and murdered. On the defence of alibi, counsel cited the following authorities to drive home his points. Nwaemereji vs. The State (1997) 4 NWLR (Pt.499) 65, Yanor vs. The State (1985) NWLR, PG.337, Agu vs. The State (1985) 9 SC 221, ADEDEJI Vs. THE STATE (1971) 1 All NLR 75 among others.

Counsel argued that it was erroneous of the learned trial Judge to have relied on the evidence of PW1 despite the fact that she stated that she was locked up in her room and that the assailants took the deceased away and murdered him elsewhere.

In his reply to the foregoing issues, learned counsel for the Respondent Usen O. Usen Esq posited that there was no contention from the evidence concerning the death of the deceased Okon Tom Akpan. The contention was whether the Appellant or any of the convicts did any act that caused the death of the deceased with intention to cause death or grievous bodily harm. He contended that the evidence of PW1 was very positive, cogent and direct on these issues and point irresistibly to the guilt of the Appellant that he and the other convicts committed the offence charged. He cited the case of JUA vs. THE STATE (2010) 4 NWLR (Pt.1184) P.217.

On the defence of alibi put up by the Appellant, counsel submitted that once a person was positively identified and pinned to the locus criminis, the defence of alibi cannot avail him. He argued further that PW1, Emem Alphonsus Udo testified that when she opened the door upon hearing the commotion, she saw the Appellant and others beating the deceased before she was pushed into a room. He contended, therefore, that PW1 saw the Appellant and the other assailants before she was pushed into a room at gun point. She identified the Appellant and the other assailants very well because she knew them. He cited Ani vs. The State (2003) 11 NWLR (Pt.830) p.142. Aliyu vs. The State (2013) 54 NSCQR 509 page 515 516 and submitted further that once the evidence of an eye witness to any crime fixes an accused/Appellant at the scene of crime and identifies him/her as the perpetrator of the crime, there can be no defence of alibi in the circumstances.

In determining this appeal, I shall make use of the two issues as formulated by the Respondent already set out earlier in this judgement.

Whether this appeal succeeds or fails depends on if the prosecution proved beyond reasonable doubt the death of the deceased, that the act of the Appellant caused the death of the deceased and that the act of the Appellant was intended to cause death or grievous bodily harm. See Okoro vs. The State (2012) Vol.207 LRCN pg.108 at 117.

Emem Alphonsus Udo testified as prosecution witness No.1. She is an eye witness and a relation of the deceased who was with the deceased in the same house when the assailants came. She testified that she was in the house with the deceased who as a dry cleaner. The deceased was ironing cloths in his living room when the Appellant Etim Etim Udo in company of the other assailants knocked on the door calling and pleading with the deceased to open the door for him to collect his cloths for use the following morning. PW1 knew the Appellant and the other assailants very well and was able to see them because there was electricity light.

When eventually the deceased opened the door, PW1 heard the deceased saying “what have I done to you” and she never heard the voice of the deceased again.

PW1 stated that she opened the door of her room and came out. She pleaded with the Appellant and other assailants to leave the deceased, but the 3rd convict Ofonime Usua Udom pushed her inside and pointed a gun on her and threatened to kill her if she talked again. The assailants then locked her inside her room and continued to beat the deceased whom they eventually took away.

She stated that she broke the door and ran out of the room. She raised alarm which attracted people, but the assailants threw dangerous weapons on them and threatened to kill anybody who dared to approach them.

PW1 further testified that the Appellant and his group took the deceased to the compound of the 1st convict’s father where they continued to beat him, inflicted cuts all over his body until he died (see pages 251-253 of the Records).

PW1 stated that the deceased was her in-law. That she grew up in that village and knew the Appellant and the other convicts well, she also knew their names and had no difficulty in identifying them because there was electricity.

The evidence of the PW1 was very clear, direct and was unequivocal. It clearly proved and laid to rest the ingredients of the offence of murder as spelt out in the case of Okoro vs. The State (Supra). Her evidence in law is eye witness evidence which is regarded as the best evidence in criminal trial. See Shurumo vs. The State (2011) vol. 196 LRCN 199 at 208.

On the contention by counsel for the Appellant that the PW1 was related to the deceased. The law is that as long as such evidence is credible and relevant, the trial Court is at liberty to accept such evidence.
“The fact that the witness for the prosecution had been relations or friends of the deceased does not make their evidence inadmissible, so long as such evidence had been carefully considered by the trial Court and found to be direct, unassailable and true…”

It should be noted that this matter was at different time taken by three other Judges before it started de novo before Justice Stephen . Okon on 16th July, 2009.

On the contention that the I.P.O did not testify in this case. It should be noted that though the evidence of the I.P.O is most times desirable but criminal proceedings do not include police investigation as an act. Police investigation no matter how articulate cannot override or take the place of real evidence of an eye witness or victim of crime. See IGP vs. Fawehinmi (2002) 5 SCNJ pg. 103 at 109.

The evidence of an eye witness or eye witnesses depending on the circumstances of a case is enough to ground a conviction. See Ani & Anor vs. The State (2003) 11 NWLR (Pt. 830) 142 at 150.

The evidence of the eye witness in this present appeal PW1 is so direct, strong, compelling, cogent, unequivocal and concrete that it makes the evidence of an IPO a mere surplusage in the determination of the guilt of the Appellant at the trial Court.

The prosecution witness No 3 (pw3) was Dr. Ido Friday a Medical Practitioner who carried out post mortem examination on the body of the deceased Okon Tom Akpan, he issued a medical report Exhibit A. He stated clearly that in his opinion, the deceased died of severe beating and torture. He opined that sharp objects such as knife must have been used in inflicting the injuries found on the body of the deceased.

For a trial Court to rely on medical evidence to prove the cause of death of the deceased, such medical evidence must show clearly that the injury inflicted on the deceased caused the death without any intervening cause or causes culminating in the death of the deceased. See Oforlete vs. The State (2001) 12 NWLR (Pt.681) P.415 at 420.

The evidence of the cause of death by PW3 are in tandem with the evidence of PW1 the Eye witness as to how the Appellant and the other convicts beat the deceased and used sharp objects on him until he died.

Supreme Court in Ayan vs. The State (2013) 55 NSCQR P.228-229 held that where the presence of an accused person is fixed at the scene of crime, the defence of alibi no matter how beautifully put up is defeated and need no investigation. Once a person is positively identified and pinned to the locus criminis, alibi cannot avail him. PW1 the eye witness stated clearly that when she opened the door upon hearing the commotion, she saw the Appellant and the other convicts beating the deceased. Having grown up in the same village as the Appellant and the convicts, she had seen them before she was pushed into her room.

A defence of Alibi by an accused person is a combined defence of lack of “actus reus” and “mens rea”, ie that he was not at the scene of crime and was therefore, neither in a position to have committed the offence alleged nor participated in its commission nor even had the intention of committing the crime. Therefore, being a matter or fact peculiarly within his personal knowledge, an accused who raises it has the burden of leading evidence of the fact of the Alibi even though the primary or general burden of proof of guilt remains throughout on the prosecution and does not shift. See Gachi vs. State (1965) NMLR P.333, Odidika vs. State (1977) 2 SC. 21, Ukwunnenyi vs. State (1989) 4 NWLR (PT.114) 131 at 144.

The evidence led by the prosecution through PW1 the eye witness was that the Appellant at about 10pm on the 5th day of July, 2003 in company of the other convicts came to the house of the deceased beat him up, took him away and continued to beat him with sharp objects until he died.

The evidence of PW1 was detailed and direct on these two essential aspects of the case. PW1 also stated that she knew the Appellant before the date of the incident having been brought up in that same village. He knew the name of the Appellant as well as the other assailants and identified them.

Having led the foregoing evidence fixing the Appellant with the time and date of the crime at the scene, the evidential burden of leading evidence on the alibi on these points at least sufficient to cast doubt in the mind of the trial Judge was on the Appellant.

But in contrast, although the Appellant gave evidence that he was with his brother and their girl friends. It should be noted that the Appellant did not call a single witness at the trial Court.

Where an accused sets up an alibi as a defence, the mere allegation that he was not at the scene of crime is not enough. See Yanor vs. State (1965) 1 All NLR. 193, Salami vs. State (1988) 3 NWLR (Pt.85) 670 at 677. Once the evidence of an eye witness to any crime fixes an accused/Appellant at the scene of crime and identifies him/her as the perpetrator of the crime, there can be no defence of alibi in the circumstances. See Aliyu vs. The State (2013) 54 NSCQR 509 page 515-516.

In the instant case, on the level of evidence adduced by both sides, there was a direct and straight issue of credibility and the learned trial Judge was entitled to weigh both issues and reach a conclusion on which side he believed. He did so at page 313 of the record of appeal where he found, inter alia as follows:

“Furthermore, I hold that though the evidence of the investigating police officer (IPO) was desirable, it was not in the circumstances of this case necessary. The evidence of the PW1 alone was capable of sustaining the charge of murder against the accused persons. The issue of alibi feebly raised by the defence counsel was an afterthought. I dismiss it outright….”

The above is a clear and succinct finding of fact which this Court has no reason to distort or reverse.

The testimony of PW1 is strong, positive, direct, cogent and compelling. It points irresistibly to the fact that the Appellant committed to offence as charged. For the reasons earlier enumerated above, I could not be impressed by the defence of alibi of the Appellant. I see it as a mockery of the defence of alibi. It is my humble but firm view that the evidence of PW1 and W3 were enough to ground a charge of murder against the Appellant.

In the final result, the two issues are resolved in favour of the Respondent against the Appellant.

This appeal is unmeritorious, it fails and is accordingly dismissed. The judgement of the learned trial Judge delivered on the 24th day of June, 2013, convicting the Appellant and the death sentence by hanging passed on him are hereby affirmed.

OTISI, JCA

My learned Brother, C.E. Nwosu-Iheme, J.C.A., made available to me a copy of the Judgment just delivered in draft form, dismissing this appeal. The issues raised in this appeal have been completely resolved. I am in agreement with his reasoning and conclusion which I adopt as mine. For emphasis, I will make few comments.

It is well settled that in a criminal trial, the prosecution has a duty to prove the guilt of the accused person for the offence for which he is charged beyond reasonable doubt.

The expression proof beyond reasonable doubt however does not mean proof beyond a shadow of doubt. It simply means that there is credible evidence upon which the Court can safely convict, even if it is upon the evidence of a single eye witness; Afolalu v State (2010) 6-7 MJSC 187; Akalezi v. State (1993) 2 SCNJ 19; Akpabio v. State (1994) 7 NWLR (Pt.359) 635.

This appeal is also dismissed by me. The conviction and sentence of the Appellant are hereby affirmed.

ELECHI, JCA

I have read in draft the Judgment of my Learned brother Chioma Nwosu – Iheme (Ph.D), J.C.A. in this matter. I agree with the reasoning and conclusion arrived therein. My Learned brother was right that the appeal is unmeritorious as it fails and accordingly dismissed.

I adopt same as mine in dismissing the appeal. Also the Judgment of the Lower Court is hereby affirmed.

Appearances:

NTA A. NTA For Appellant(s)

Absent For Respondent(s)