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In The Supreme Court of Nigeria

On Friday , the 12th day of January, 1990

Suit No 130/1988

 

 

Before Their Lordships

 

Andrews Otutu Obaseki

......

Justice, Supreme Court

Muhammadau Lawal Uwais

......

Justice, Supreme Court

Saidu Kawu

......

Justice, Supreme Court

Abdul Ganiyu Olatunji Agbaje

......

Justice, Supreme Court

Philip Nnaemeka-Agu

......

Justice, Supreme Court

 

Between

 

Ozaki and Another

.......

Appellants

 

And

 

The State

.......

Respondents

 

 

Judgement of the Court

Delivered by

Andrews Otutu Obaseki. J.S.C

 

 

This criminal appeal raises important issues. The first is the burden of proof or onus of proof and the second is the question of standard of proof required in criminal cases to secure conviction. The other equally important issues raised are whether there is need to give direction on the issue of provocation and the issue of self defence when a defence of alibi is raised unsuccessfully in the light of the evidence on record. Finally, there is the question whether an accused can be convicted on the written statement of a co-accused made to the police in his absence. The formulation of these issues by the appellants' counsel, Chief F.O. Akinrele, S.A.N., runs as follows:

 

(1)    The Court of Appeal having found that there was a misdirection in the assessment of the evidence offered as alibi, was the Court of Appeal right to have dismissed the appeal of the appellants?

 

(2)    Was the learned Judge right that there was no evidence on record to consider the case of provocation or self-defence as the appellants have retracted the story contained in their statements to the police?

 

(3)    Was the Court of Appeal right in holding that there can be no case of provocation for acts done in the absence of the appellants?

 

This appeal is against the decision of the Court of Appeal sitting in Kaduna on appeal from the High Court of Kwara State holden at Lokoja. The information filed in the High Court of Kwara State charged the two appellants herein to wit:

 

(1)     Danlami Zaki and

(2)     Tukura Zaki and 5 others namely

(3)     Wamba Bawa;

(4)     Peter Waiyam;

(5)     Musa Baba,

(6)    Yusuf and

(7)     Shaba Tukura

 

with culpable homicide punishable with death under section 221(a) read in conjunction with section 7 of the Penal Code.

 

The facts of this case accepted by the learned trial Judge are contained in the evidence of P.W.2, PC. No.61732 by name Abayo Abimeka and P.W. 3 No. 62376 Corporal Augustine Garuba.

 

Briefly, P.W. 2 and P.W. 3 went on patrol duty to Ahoko village. On getting to the village, they saw a crowd of people sad and wailing. On enquiry, accused 4 told them that one fulani man, unknown to them had shot to death their brother and ran away. They then found their way to the main road where they could get a vehicle. On getting to the main road, they stopped a bus going to Koton Karfe. They then saw late Mohammed Dan Mauta alighting from the bus and he came to P.W. 2. He enquired what was happening and as P.W. 2 was trying to explan to him, the enraged villagers (including the 1st, 2nd, 3rd, 4th and 6th accused) pounced on him and attacked him. On seeing 1st appellant armed with a cutlass, the deceased fled shouting for help. P.W. 2 in order to prevent the villagers from killing him, followed to help him but 1St appellant and others ran faster passed him and got hold of the deceased. His effort to save the deceased was unsuccessful and abortive. As he struggled with accused 1, accused 2 got the cutlass from accused 1 and cut the deceased on the head with it. Accused 3 and 4 used the butts of their dune gun to hit the deceased. Accused 6 who held a long knife used it to cut the legs of the deceased. P.W. 2 could not recognise accused 5 and 7. The picture will not be complete without a narration of the facts of events that brought the rage on the crowd.

 

The day was Christmas day, 25/12/81. The 1St appellant was in his house at Ahoka village enjoying Christmas when his daughter, Felicia brought news to him that Fulani hersdmen and their cows were right inside his farm and that the cows were eating his crops. The 1st appellant then dispatched his brother Philip Ozaki to investigate. He followed soon after. When Philip got to the farm, an altercation ensued between him and a fulani herdsman armed with a dane gun. Soon afier, the fulani man opened fire and shot Philip dead with the dane gun. At this juncture, the fulani herdsman fled and when 1st appellant could not find him, he sought the assistance of the police. The victim was named Mohammed Dan Mauta and the date he was attacked and killed was the 25th day of December, 1981. The scene of crime was at Ahoko village in Osere Local Government Area within Kwara Judicial Division.

 

This case is a typical example of transferred malice. The appellants were alleged to have mistaken the victim for the person, a cow-herdsman who shot and killed Philip Ozaki, a relation of the appellant sent to ward off the herdsmen and their cattle from their farm, and seriously wounded another person by name Moses.

 

Seven accused persons were arraigned before Adeniyi, J., and tried for the offence of culpable homicide punishable with death contrary to section 221(a) of the Penal Code. Eight witnesses testified for the prosecution. In addition to the seven accused persons who testified in their own defence, eight defence witnesses were called. D.W. 1, D.W. 2 testified at the instance of 1st accused appellant. D.W. 3 testified on behalf of 2nd accused appellant to corroborate his alibi. D.W. 9 Shenlo Ozaki was the father of accused 1 and the deceased Philip Ozaki who is his eldest son.

 

After hearing evidence and addresses of counsel, Adeniyi, J., delivered a considered judgment in which he found 1st, 2nd, 5th and 6th accused persons guilty and convicted them and sentenced them to death for culpable homicide punishable with death He then found the 3rd, 4th and 7th accused persons guilty of causing grievous hurt to the deceased contrary to section 242 of the Penal Code and punishable under section 247 of the Penal Code and sentenced each of them to 2 years imprisonment.

 

Dealing with the defence of alibi set up by 1St appellant, the learned trial Judge said:

 

         It is settled law that the defence of alibi raised by an accused is to be proved by balance of probability. I have duly considered the defence of accused I in this respect and I find it incredible and wholly unacceptable The testimony of P.W. 2 and P.W. 3 whom I believe, destroys such a hollow defence which is devoid of all merit particularly when the farm, the scene of the crime is very close to Ahoko village. It can be seen when one is in that village.

 

Dealing with the defence of alibi set up by the 2nd appellant, the learned trial Judge observed and commented as follows:

 

        Accused 2, Tukuma Ozaki, testified that he travelled to Abaji on 25/12/81 where he celebrated Christmas and did not return till 5.00 p.m. This was confirmed by D.W. 1 called by accused 1 and by his own wife D.W. 3 called by him. He knew nothing about the death of Mohammed Dan Mauta whereas in his statement, Exhibit 3, he explained that he was at the village that day and that he only joined accused 1 to carry their deceased brother home. He is self contradictory and therefore unreliable.

 

Commenting generally, the learned Judge said:

 

        After sifting the evidence relating to alibi pleaded by each accused as supported by his witnesses and weighing the same against the evidence proffered by the prosecution witnesses on that point, I find that the weight of evidence or the balance of probability tilts on the side of the prosecution. In consequence, thereof, the respective alibi totally fails. Those pleas must be rejected and having regard to the clear and strong evidence of P.W. 2 and P.W. 3 both of whom also took part in the affest and the identification parade. See the classic case of Ortase Yanor y'. The State 1965 N.M.L.R. 337. The basic law on this point is well stated in Suberu Be/b & Ors. y. Commissioner ofPolice (195941) W.N.L.R. 124 where it was held that the burden of establishing the defence of alibi which lies on the accused is like that which lies on the defendant in a civil case, it is discharged by the balance of probability and not by proof beyond reasonable doubt. I do not see any discrepancies in the evidence of P.W. 2 and P.W. 3 and none is pointed out to me as regards the identities of the accused persons who joined hands to kill the deceased.

 

Of great concern to me is the statement by the learned trial Judge that:

 

        Out of all the accused persons it was accused 2 who implicated accused I in his statement to the police, Exhibit 3 and to the effect that accused 1 killed or confessed to him that he, accused 1, killed the deceased with his cutlass. The relevant portion of his statement reads:

 

         I also saw Danlami with the cutlass he used in killing the fulani man but blood was not on the cutlass by then again as he washed it away before he reached home.,

 

The statement was admitted without objection but was later retracted by accused 2... His statement Exhibit 3 will therefore be treated with great caution and used, after duly warning myself, in conjunction with other abundant corroborative evidence available in so far as it incriminates accused 1."

 

Dealing with the defence of provocation, the learned trial Judge observed and commented as follows:

 

         As all of them had pleaded alibi, a defence which fails in each case, the court has a duty to examine the evidence adduced by the prosecution and see if any defence of provocation or self defence can be deduced and sustained.

 

I have accordingly cast my mind back upon the totality of the prosecution evidence and am unable to find any evidence of self-defence or provocation. The defence is now nothing but absolute denials. Learned defence counsel only urged these defences of self-defence and provocation in respect of each accused merely on the assumption that Exhibit '2' and '2A', the confessional statement of accused 1, were properly in evidence. As it is now discarded for reasons earlier given, the court has to rely only on oral evidence of the prosecution witnesses together with the remaining uncontroverted statements of the other five accused persons to the police and the oral evidence and the denials of each of the accused persons .

 

The suspicion by the accused persons that the deceased was the culprit who shot Philip Ozaki dead was unfounded or baseless. At least as at that material time of the attack on the innocent deceased the accused persons should be regarded as aggressors relying on the evidence of P.W. 2 and ........ Accused 1 and 2 were not at that time put in any personal danger of their lives nor was the defence of their private property at stake

They meant to wreak vengeance on any fulanis they might happen to see around the farm and they did so on the deceased in revenge for the death of Philip Ozaki shot dead earlier in the day. Self-defence, it is said, is no revenge.

 

Turning to the issue of provocation, none of the accused persons was provoked before and at the time accused 1 got hold of the deceased and struck him with a cutlass . . The case borders on or is in line with the decisions in R. v. Afonja (1955) 15 W.A.C.A. 265.

 

Provocation will not be as a defence for an accused who enraged by the acts of others, kills someone who committed no provoking acts through others.

 

Indeed, there was no denial that the accused person's brother and village-mate, Philip Ozaki, was in the earlier part of the day killed with a gunshot by unnamed person or fulani and that his dead body was still on the farm at the time the deceased came out of the bus and was mauled down...

 

All that has been said on provocation so far is putting the case too favourable for the defence. The fact remains that their defence of alibi will no longer make the defence of provocation available to them as thev will either stand or fa II by their plea. They ought not to be heard approbating and reprobating. That is to say, having pleaded alibi, they cannot fall back on the defences of provocation and self defence in the circumstances of this case.

 

Above all, the statement of accused 2, Tukura Ozaki, neatly links accused 1 with the commission of the offence or killing of the deceased.

 

As already mentioned, it may be argued that the statement of accused 2 Exhibit 3 and 3A respectively, emanated from an accomplice. This is so by virtue of their being charged and tried together in this case. But it is submitted that accused 1 can be convicted on Exhibit 3 provided the court receives the evidence with caution and duly directs itself as to the danger of convicting accused I on any uncorroborated evidence (i.e. Exhibits 3 and 3A;) of accused 2 as stated in R. v. Lagos (1941) 67 W.A.C.A. 123.1 have however found corroboration in abundance in the evidence of P.W. 5 and P.W. 2 and P.W. 3 together with exhibit 5 where in the types of the wounds states are similar to those inflicted by the accused persons on the deceased.

 

Accused 2 has fixed accused I in Exhibit 3...

 

Accused 1 on Exhibit 3 alone without corroboration, I accept it and find that Mohammed Dan Mauta died on 25/12/81 his death having been caused directly by the acts of accused 1, 2, 5 and 6 who gave him cutlass cuts or matcheted him on the head and almost severed his two feet from his body till he died."

 

Aggrieved by the decision of the learned trial Judge, all the 1st, 2nd, 5th and 6th accused persons appealed to the Court of Appeal against the decision complaining inter a/ia of misdirection in law on the defences of alibi, self defence and provocation, and identification and generally the burden of proof. In a well considered judgment, the Court of Appeal allowed the appeal of the 3rd and 4th appellants and affirmed the conviction of the 1st and 2nd appellants. The 1st and 2nd appellants were still dissatisfied and have brought this appeal to this Court.

 

The Court of Appeal dealt with the issue of the erroneous consideration of the question of alibi by the learned trial Judge at length. Ogundere, J.C.A. (with whom Wali, J.C.A. and Akpata, J.C.A. concurred) commented on the issue of alibi as follow:

 

         This court in this division, in Chewmeh V. The State (1986) 2 N.W.L.R. (Part 22) page 331 at pages 342-343 expatiated on the law regarding the defence of alibi in my own contribution thus:

 

         In this regard, it is settled law that an accused person whose defence is an alibi, that is he was elsewhere at the time of the commission of offence, has the onus to bring evidence on alibi, which when considered with the case for the prosecution creates a reasonable doubt in the mind of the Judge so as to entitle him to an acquittal. The burden is far less than that in civil case, i.e. balance of probabilities. His mere assertion that he was elsewhere does not, however, discharge the burden unless the prosecution during the investigation found it to be true or is in doubt whether or not it is true. Eze V. The State (1976)1 S.C. p.125 at 130. Gashi & Ors. v. The State (1965) N.M.L.R. p.333 per Brett, J.S.C., at p.334....

 

The next question is to find out whether or not the police investigated the defence of alibi by all the appellants. The answer is in the negative. The reason could be found in the testimony of two eye witnesses to the killing both being policemen in mufti, who testified to the hearing.

 

The failure to investigate the defence of alibi must have created a serious lacuna in the evidence led by the prosecution. Without the investigation and evidence thereof, the truth or falsity of the evidence of the two eye witnesses P.W. 2 and P.W. 3 cannot be established. However, the appellants have appealed against the decision of the Court of Apeal and the grounds argued before us are:

 

(1)    That the Court of Appeal erred in law in dismissing the appeal of the appellants when it was patent from their findings that the learned trial Judge misdirected himself in law on the onus of proof by the prosecution on the issue of alibi raised by the appellants and that such misdirection occasioned a failure of justice.

 

Particulars

The learned trial Judge held as follows:

 

        After sifting the evidence relating to alibi, pleaded by each accused as supported by his witnesses and weighing the same against the evidence proferred by the prosecution witnesses on that point, I find that the weight of evidence or the balance of probability tilts on the side of the prosecution. In consequence therefore the respective pleas of alibi fails.'

 

Whereas in point of law, the onus on the prosecution is (proof) beyond a reasonable doubt.

 

(2)    The learned trial Judge erred in law in failing to consider the issue of self defence and provocation on the grounds that the statement of the accused raising them deviated from in their testimony in court. Whereas it was obligatory on the court to consider alternative defences on record even if not raised.

 

(3)    That the Court of Appeal erred in law in holding that there cannot be provocation, if the appellant was not present at the time of the firing of the gun. Whereas from the evidence, the appellants were proximate enough and saw the corpse of the deceased - a sequence which makes such a distinction immaterial.

 

(4)    That the decision is unwarranted, unreasonable and cannot be supported having regard to the (weight of) evidence.

 

Chief F.O. Akinrele, S.A.N., dealt with the issues raised in this appeal in an admirable manner. He was brief and to the point in his submissions.

 

On the issue of alibi, he submitted quite rightly that as a matter of general propositon of law, it is settled law that there is no burden of proof imposed on an accused to establish an issue affording justification or excuse at common law, such as accident, self defence or alibi as an answer to the charge. He contended, quite justifiably in law, that if an accused puts forward an alibi, the onus is not on him to prove such defence but on the prosecution to disprove it citing in support the case of R. V. Johnson (1961)1 W.L.R. 1478; Yanor V. The State (1965) N.M.L.R. 337 the dictum of Lewis, J.S.C., in Arebamen V. The State (1972) 4 S.C. 35 at 4~l and the dictum of Jkono V. The State (1973) 5 S.C. 231 at page 256.

 

On the issue of self-defence, he cited in support of his contention that the accused persons have no onus to discharge-the case of R. y,. Abraham, an English case reported in (1973) 3 All E.R. page 694.

 

On the issue of failure to consider the alternative defences of provocation and self defence, Chief F.O. Akinrele, S.A.N., learned counsel for the appellants contended and emphasised that a trial Judge must consider all alternative defences which appear on the records whatever the line adopted by counsel in the case. He found support in the dictum of Viscount Simon, L.C., in Mancini V. D.P.P. 1942 A.C. 1 at page 1 and the dicta of Lord Reading in R. V. Hopper (1915) 2 K.B. 341.

 

Learned counsel for the respondent in reply submitted that the learned trial Judge gave adequate consideration to the defence of alibi, provocation and self-defence raised by the appellants in their defence. He submitted further that there was no evidence of acts of provocation offered by the deceased to the appellants to avail them of the defence of provocation and self defence. He described the act of killing of the deceased by the appellants as an act of vengeance on an innocent person for the death of Philip Ozaki.

 

In view of the seriousness of the charge, these submissions of the counsel deserve careful and meticulous consideration. I cannot say that the statements of law on the pieces or defence of alibi and the value of the confessional statement of a co-accused have been helpful. They have been the source of serious complaints in this appeal.

 

ALIBI:

 

What is the meaning of alibi? It is a defence where an accused alleges that at the time when the offence with which he is charged was committed, he was elsewhere. It is the law that notice of intention to raise it must be given. This is normally done at the first possible opportunity by a suspect in answer to a charge by the police at the investigation stage to enable the truth or falsity of the allegation to be established by the police seeR. V. Lewis (1969) 2 Q.B. 1. Adjo V. The State (1986) 3 N.W.L.R. 714; (1986) 2 N.S.C.C. 815; Adedeji V. The State (1971)1 All N.L.R. 75; Gachi V. The State (1965) N.M.L.R. 333 per Brett, J.S.C. at p.334; Fatoymbo V. Attorney-General, Western Nigeria (1966) W.N.L.R. 4 Eze V. The State (1 976) 1 S.C. 125 per Obaseki, J.S.C. at 130.

 

Once a defence of alibi has been promptly and properly put up, the burden is on the prosecution to investigate it and rebut such evidence in order to prove the case against the accused beyond reasonable doubt. Adedeji V. The Slate (1971)1 All N.L.R. p.75. Failure by the police to investigate and check the reliability of alibi would raise reasonable doubt in the mind of the tribunal and lead to the quashing of a conviction imposed in disregard of this miqrnrement as was done in the case of Onafowakan V. The State (1987) 7 S.C.; (1987) 3 N.W.L.R. (Part 61) page 538; (1987) 2 N.S.C.C. 1101. The accused person only has what is referred to as evidential burden which means the duty of adducing evidence or raising the defence of alibi. Ortese Yanor & Ors. ". The State (1965) N.M.L.R. 337; Patrick Njo"ens & Ors. V. The State (1973) 5 S.C. 17 at 85; Wasari Umani ". The State (1988)1 N.W.L.R. (Pt. 70) 274 Bozim ". The State (1985) 2 N.W.L.R. (Pt. 8) 465; (1985) 7 S.C. 450; (1985) 2 N.S.C.C. 1087.

 

Once an accused person discharges the evidential burden of adducing evidence of alibi, it is the duty of the prosecution to disprove it. The duty of the learned trial Judge is to test the evidence of alibi against the evidence on the issue adduced by the prosecution and if there is doubt in the mind of the learned trial Judge to resolve it in favour of the accused.

 

The onus on the prosecution to prove the charge against the accused beyond reasonable doubt never shifts and there is no onus on the accused to prove the alibi beyond that of introducing the evidence of alibi. Bozim". The State (supra). Where the accused person gives conflicting stories as to his whereabouts at the material time under consideration, there is no duty to investigate the alibi. In such a case, no alibi is established. Agu v. The State (supra).

 

The ipse dixit of the accused, i.e. that he was not present there is not enough. To raise the defence he must give particulars of his whereabout at the particular time. Aga v. The State (supra) Ohiode v. The State (1970)

N.S.C.C. 31.

 

The learned trial Judge in this matter while considering the duty of the accused person in respect of alibi, held as shown earlier on in this judgment that the accused had the duty to establish the alibi on a balance of probability. This phrase balance of probability was culled from the submission of counsel to the Supreme Court in the case of Ohiode & Ors. v. The State (supra) (1970) N.S.C.C. 31 at 34. Fatayi-Williams, J.S.C. (as he then was) delivering the judgment of the Court said:

 

         It was also contended by learned counsel that since the identification of the 10th accused person by th 1st p.w. did not satisfy the learned trial Judge, this witnesses' identification of the 1st, 2nd, 4th and 9th accused persons could not have been beyond all reasonable doubt and indeed to the extent that these witnesses said they saw the seven accused persons participating in the crime, they could not have been speaking the truth. In the learned counsel's submission, this point is all the more important when it is realised that in order to establish the defence of alibi, it is not necessary to prove the alibi beyond all reasonable doubt it being sufficient to raise a defence on the balance of probabilities. In considering whether the learned trial Judge could have been satisfied with the case against the accused persons, Chief Williams finally submitted that the nature of their defence which was that the prosecution witnesses lied against them was material.

 

It was therefore not a statement of law by the Supreme Court that the accused persons' duty in relation to the defence of alibi is to establish the defence on a balance of probabilities. Balance of probabilities means preponderance of evidence. In other words, the accused persons adduce evidence which out-weighs the evidence of the prosecution on the issue of alibi. That is not the law. As stated above, the only onus on the accused person is the evidential burden. The effect of such evidence is not dependent upon its preponderance. It may be scanty or minimal but yet very effective in raising reasonable doubt in the minds of the tribunal. It may be abundant yet raise no doubt in the minds of the tribunal.

 

In the instant appeal, the learned trial Judge erred in his direction on the onus of proof and standard of proof of alibi. The Court of Appeal therefore erred in affirming the conviction based on this misdirection.

 

What then is the law? In Arebamen V. The State (1972) 4 S.C. 35 at p. 4~ 41; (1972) N.S.C.C. 194 at 197, Lewis, J.S.C. (delivering the judgment of the Supreme Court) said:

 

         In our view though we agree the onus is on the prosecution to disprove the alibi, as the learned trial Judge rightly stated, since we said in Adedeji V. The State S.C. 324/70 (unreported) of the 19th of February, 1971.

 

        We think that what he was intending to say though he might have perhaps more happily phrased it, is that if an accused person wishes to put forward an alibi, it is for him to offer evidence accordingly but if he does put forward evidence then the onus is not on him to satisfy the jury that the alibi on such evidence is established but for the prosecution to disprove the alibi. We must emphasise that there is no onus on the accused to satisfy the jury on the alibi once he has put forward evidence which might establish it (cf R. "Johnson (1961)) 1 W.L.R. 1478 and Yanor V. The State (1965) N.M.L.R. 337).

 

Again in Ikono & Anor. V. The State (1973) 5 S.C. 231(1973) N.S.C.C. 352, it was held that

 

(1)    The person who puts forward an alibi as an answer to a charge does not assume any burden of proving that answer and that it is a misdirection to refer to any burden as resting on the prisoner in such a case.

 

Ogundere, J.C.A., in his judgment misdirected himself in law when he said:

 

         In my view as regards accused 1 and 2, 1St and 2nd appellants herein independent and responsible witnesses saw and testified to the commission of the offence and were able to identify the offenders, the rule that alibis must be investigated is therefore inapplicable in the face of credible evidence of two witnesses.

 

There is no such exception to the rule.

 

The two policemen, p.w. 2 and p.w. 3 were police witnesses and not the investigating police constables whose duty was to investigate the alibi. It is the evidence of investigating constable on the issue that could have provided the measure by which to test the credibility of p.w. 2 and p.w. 3 on the one hand and the credibility of the appellants on the other if there had been any. It would have enabled the learned trial Judge to deterinine the cogency of their evidence and the proper weight to attach to the evidence of each witness.

 

The erroneous statement of law by the learned trial Judge and that of the Court of Appeal on the effect of the failure of the police to investigate the alibi of the appellants has occasioned a serious miscarriage of justice. The 2nd apellant set up the alibi from the time of his arrest and maintained it in court but the 1st appellant's alibi was put forward only in court. It is impossible for this Court to say what influence a proper and correct direction would have had on the mind of the learned Judge in regard to the cases made against the 1st and 2nd appellants. But in my opinion, the alibi of the appellants not having been proved false, is bound to create doubt in the mind of the learned trial Judge as to the guilt of the appellants and that doubt must be given in their favour. This, I hereby do.

 

CONFESSIONAL STATEMENT BY 2ND APPELLANT

 

I will now proceed to consider the effect of Exhibit 3A the statement of the 2nd appellant, a co-accused of the 1st appellant on the conviction of the 1St appellant.

 

The 2nd appellant was charged and tried along with the I St appellant. He was therefore a co-accused. The learned trial Judge was in this circumstances in error to have classified him as an accomplice. Exhibit 3A is a translation of the statement made by the 2nd accused person now 2nd appellant to the police during the police investigation. It is not a confessional statement in that the 2nd appellant never in that statement made any confession or admission of the offence charged. The only confessional statement was Exhibit "2". It was made by the 1st appellant but was expunged or dispensed with by the learned trial Judge during the consideration of the judgment in the case. The learned trial Judge in his judgment regarded Exhibit '2" as one of the main pillars of the case for the prosecution but the learned Judge held that the circumstances of the making of the statement and attestation by the Upper Area Court Judge, p.w. 7 created doubt as to the voluntariness of the statement and he dispensed with it, i.e. he expunged it from record of admissible evidence to be considered. The statement is a far cry from the facts narrated by p.w. 2 and p.w. 3 the alleged police eye Iwitnesses. The only confession in the statement is that the accused 1 followed Philip Ozaki to his farm and when the fulani herdsman saw them, he, the fulani, opened fire on them with his dane gun. Philip Ozaki was hit on the head and died. On seeing this, he pursued the fulani who took to his heel and killed him in the combat. It was not a case of an innocent fulani being attacked and killed by irate villagers (accused No, 1, 2, 3,4, 5, 6 and 7) at the bus stop on alighting from a motor vehicle.

 

A confession of murder induced by threat is inadmissible in evidence. See R. v. Haske (1961)1 All N.L.R. 330; [1961] 2 S.C.N.L.R. 90.

 

The confessional statement having been expunged no longer constituted evidence for the purpose of the judgment of the court.

 

Turning to Exhibit "3," and "3A", the statement of the 2nd appellant, the learned trial Judge held that it implicated the 1st appellant. In his own words, the learned Judge said:

 

Out of all the accused persons. it was accused 2 who implicated accused I in his statement to the police Exhibit 3 and 3A to the effect that accused I killed or confessed to him that he accused I killed the deceased with his cutlass. The relevant portion of his said statement reads:

 

         I also saw Danlami with the cutlass he used in killing the fulani man but blood was not on cutlass by then again as he washed it away by the before he reached home.' ......

 

His statement Exhibit 3 will therefore be treated with great caution and used after duly warning myself in conjunction with other corroborative evidence available in so far as it incriminates accused 1

 

Above all, the statement of accused ~ Takura Ozaki neatly links accused 1 with the commission of the offence or killing of the deceased .

 

         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 on the uncorroborated evidence (i.e. Exhibits 3 and 3A) of accused 2 as stated in R. v. Lagos (1941) 7 W.A.C.A. 123.1 have however found this corroboration in abundance in the evidence of p.w. 5, p.w. 2 and p.w. 3 together with Exhibit 5 wherein the types of the wounds stated are similar to those alleged inflicted by the accused persons on the deceased. Accused 2 has fixed accused 1 in Exhibit 3...

 

        Accused J 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 matchetted him on the head and almost severed his two feet till he died. They should be found guilty of an offence under section 221(a) of the Penal Code.

 

The second appellant never repeated the statement in his testimony in court. It is an error in law to convict an accused on the statement of another accused to the police. it is a travesty of justice and gross violation of all known rules of evidence. Section 27 of the Evidence Act forbids the use of such statement even when it is confessional. Section 27(3) of the Evidence Act Cap. 62 L/FN. 1958 reads:

 

        Where more persons than one are charged jointly with a criminal offence, and a confession made by one of such persons in the presence of one or more of the other persons so charged is given in evidence, the court or a jury where the trial is one with a july shall not take such a statement into consideration as against such other persons or in whose presence it was made unless he adopted the said statement by word or conduct.

 

The learned trial Judge wrongly, as mentioned earlier, classified the 2nd appellant as an accomplice. As he stood trial along with 1st appellant, he was a co-accused. He did not testify against the 1st appellant. It is settled law by statute and judicial decision that the confessional statement of a co-accused is no evidence against an accused person who has not adopted the statement. See E~'buomwan ~'. Commissioner of Police (1961) W.N.L.R. 257. A close examination shows that the statement Exhibit 3 and 3A is not confessional. It only narrated what 2nd appellant alleged 1st appellant told him. As he did not adopt or confirm it in court but instead denied it, is no evidence against the 1 st appellant upon which the 1st appellant can be convicted. It was therefore a serious error in law to have founded the conviction of I st appellant on it and for the Court of Appeal to have upheld the conviction.

 

It is my opinion that an incriminating statement made even in the hearing of an accused defendant, even on an occasion which could reasonably be expected to call for some explanation from him is not evidence against him on his trial of the fact therein stated save in so far as he has accepted the statement and where the statement is used to found or secure a conviction, the conviction must on appeal be quashed. In the case of Rex V. Philip Jonah & Ors. (l93~35) 2 W.A.C.A. 120, the relevant facts briefly are as follows. The appellant along with others were charged with murder. In order to establish the allegation of murder against the appellant, the learned trial Judge relied on the statement to the police of the 2nd accused, that appellant was a member of the gang which committed the offence. The 2nd accused testified and denied that he ever identified the appellant and went further and sworn that he had never seen him before his arrest.

 

At page 122, Deane, C.J., Gold Coast, delivering the judgment of the West African Court of Appeal consisting of Deane, Webbe, C.JJ. and Butler-Lloyd, Ag. C.J., said:

 

         Now in the case of R. V Norton (1910) K.B.D. 496 it was laid down that when a statement is made in the presence of a prisoner implicating him and the truth of that statement is at once unquivocally denied by the prisoner, it is not evidence against the prisoner and should not be allowed to go to the jury . . . upon this authortity it is clear that the statement of Lasisi implicating the prisoner ought not to have been given in evidence against the appellant.

 

and at page 124, the learned C.J., said:

 

        And lastly, the learned trial Judge was under a complete misapprehension when he stated that Lasisi's evidence that he was a member of the gang was the evidence of an accomplice, since Lasisi had given no such evidence but had, on the contrary, said that he had never seen the accused until after his arrest, and that was the only evidence on the point given by him in the alleged statement not being evidence in any sense.

 

It follows that the only evidence against the accused was the evidence as to the plates and cup. The learned trial Judge misdirected the jury therefore in telling them that they could consider this evidence in connection with the direct evidence of Agbabiaka that accused was a party to the common design and took an active part in carrying it out since there was no such direct evidence, and Agbabiaka could not by repeating a worthless statement by Lasisi make it evidence.

 

The conviction must be quashed."

 

It is surprising to observe that while accepting the portion implicating the 1St appellant, the learned trial Judge failed to accept the other part. He accepted the part implicating the 1St appellant and rejected the part raising the defence of alibi for the 2nd appellant. The portion implicating the 1st appellant is a hearsay, a narration of what the 1St appellant told him, the 2nd appellant. It narrated how he, 1St appellant saw his brother Philip Ozaki killed and how he dealt with the situation that arose. The other portion of the statement clearly exculpated accused 2-2nd appellant from any participation in the murder and establish his alibi. The acceptance of Exhibit 3A by the learned trial Judge case raises serious doubt of the credibility of p~w. 2 and p.w. 3 and the veracity of their testimony. Therefore, the misdirection on the issue of defence of alibi and the misdirection on the probative value of Exhibits 3 and 3A sufficiently disposes of this appeal.

 

The complaint of failure to consider the defences of self-defence and provocation is totally unfounded. The learned trial Judge gave full consideration to them in accordance with the law and his duty as a Judge.

 

The appeal succeeds and is hereby allowed. The decision of the Court of Appeal is hereby set aside and the conviction of the 1St and 2nd appellants quashed. In place of the conviction, a verdict of not guilty is hereby entered and the appellants are hereby aquitted and discharged.

 

This shall be the judgment of the High Court.

 

Judgement Delivered by

Uwais. J.S.C

 

I have had advantage of reading in draft the judgment read by my learned brother, Obaseki, J.S.C. I agree that the appeal has merit and that it should be allowed.

 

When, in respect of the pleas of alibi set up by the appellant, the learned trial Judge stated as follows-

 

         After sifting the evidence relating to alibi, pleaded by each accused as supported by his witnesses and weighing the same against the evidence proferred by the prosecution witnesses on that point, I find that the weight of evidence or the balance of probability tilts on the side of the prosecution. In consequence therefore the respective pleas of alibi fails.

 

he was in serious error of misdirection, because in a criminal case the standard of proof by the prosecution is beyond reasonable doubt and not on "the balance of probability' '-see Section 137(2) of the Evidence Act, Cap. 62. It is the burden of proof by the accused that is on the balance of probabilities. This is more so where there is a plea of alibi. In that respect the prosecution is required to investigate the alibi if it was raised by the accused in his statement in the course of investigation by the police, that is before the commencement of the trial. The burden is on the prosecution to disprove the alibi and it can only be disproved by adducing evidence which establishes beyond reasonable doubt that the accused was not absent from the scene of the crime as alleged-see section 137(2) of the Evidence Act Cap. 62. Where evidence has been adduced by the prosecution to disprove the plea of alibi, then, and only then, the accused has the onus to call evidence to weaken or discredit the evidence called by the prosecution. For section 137(3) of the Evidence Act, Cap. 62 provides-

 

(3)     If the prosecution prove the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted on to the accused.

 

The standard of the proof of the alibi by the accused at that stage is on the balance of probability as was stated by this Court in Obiode & Ors. V. The State (1970)1 All N.L.R. 35 at p.40 where Fatai-Williams, J.S.C. (as he then was) said-

 

        There is one other point when the findings of the trial Judge is looked at from the point of view of the defence. The standard ofpmof required to establish the defence of alibi is one based on the balance of probabilities. (Italics mine)

 

The learned trial Judge acted wrongly therefore when he ascribed the same standard of proof of the defences of alibi on both the prosecution and the accused presons. The Court of Appeal (per Ogundere, J.C.A.) in its consideration of the defences of alibi observed as follows-

 

         Obviously, the learned trial Judge was wrong on the burden of proof on the accused as regard alibi which he said was a balance of probability. From the authorities herein and under section 137(3) of the Evidence Act, the accused needs only establish a reasonable doubt.

 

but went on to dismiss the appeals by the appellants herein on the following grounds-

 

        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 testimony of the two eye witnesses to the killing both being policemen in mufti, who testified at the hearing. They are PC Abayo Abimeku, P.W. 2 and CPL. Augustine Garuba P.W. 3.

 

In my view, as regards accused 1 and 2, 1st and 2nd appellants herein, independent and responsible witnesses saw and testified to the commission of an offence, and are able to identify the offenders, the rule that alibis must be investigated is therefore inapplicable in the face of credible evidence of the witnesses.

 

With respect the Court of Appeal was in error in dismissing the appeal by the 2nd appellant. This is because the 2nd appellant set up the defence of alibi timeously at the time of his arrest and maintained the defence at the trial before the High Court. The failure of the prosecution to investigate the alibi could have rendered the alibi true and thereby created doubt in the mind of the trial Judge as to whether the case for the prosecution had been proved beyond reasonable doubt-see Fatoymbo V. A.-G. Western Nigeria (1966)

W.N.L.R. 4 at p.6 where Coker, J.S.C. stated -

 

        Admittedly, where such a defence (of alibi) is put forward in such a manner and at such a time as to enjoin on the prosecution the duty of investigating it, a failure to do so may cast some doubts upon the probability of the case for the prosecution.

 

There is such doubt in the case for the 2nd appellant and it should have been resolved in his favour. Both the trial court and the Court of Appeal failed to do so.I will, therefore, resolve the doubt in his favour.

 

The case for the 1St appellant is however different, he did not raise the defence of alibi at his arrest but at the trial of the charge against him. The prosecution was not therefore obliged to investigate the plea of alibi and could rely on the evidence of the prosecution witnesses to disprove the alibi-see Fatayinbo's case, (supra) at p.6; Njoven's & Ors. V. The State (1973) N.M.L.R. 331 at p.351; Hemyo Ntam & Anor. V. The State, 1968 N.M.L.R. 86 at pp. 87~88 and Urnani~. The State (1988)1 N.W.L.R. 274 at p.294 where I observed as follows-"It is very clear from the foregoing that it does not always follow that once the prosecution failed to investigate an alibi, such failure is fatal to the case for the prosecution. The trial Judge has a duty, even in the absence of the investigation, to consider the credibility of the evidence adduced by the prosecution vis-a-vis the alibi."

 

However the appeal by the 1 st appellant is bound to succeed, because the evidence relied upon by the learned trial Judge to convict him was based on the statement made by the 2nd appellant to the police~xhibit 3 which implicated him (1st appellant).

 

The learned trial Judge stated thus-

 

         Out of all the accused persons it was accused 2 who implicated accused 1 in his statement to the police exhibit 3 and 3A to the effect that accused 1 killed or confessed to him that the accused 1 killed the deceased with his cutlass. . 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 . . . As already mentioned it may be argued that the statement of Accused 2 Exhibits 3 and 3A respectively emanates 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. Exbiits 3 and 3A) of accused 2 as stated in R. ~'. Lagos (1941) 7 W.A.C.A. 123 have, however, found this corroboration in abundance in the evidence of P.W. 5, P.W. 2 and P.W. 3 together with Exhibit 5 wherein the type of the wounds stated are similar to those alleged inflicted by the accused persons on the deceased.

 

From the foregoing it is clear that the learned trial Judge misunderstood the law as regards the statement of an accused implicating co-accused. First of all the 1st and 2nd appellants were jointly charged and tried together. They were, therefore, co-accused. Any evidence given by one of them which incriminates the other cannot, in view of the provisions of section 177 sub-section (2) of the Evidence Act, Cap. 62 be treated as the evidence of an accomplice. The subsection reads-

 

        177 (2) Where accused persons are tried jointly and any one of them gives evidence on his own behalf which incriminates a co-accused the accused who gives such evidence shall not be considered to be an accomplice.

 

Secondly, the term accomplice has been considered by the Federal Supreme Court in the case of R. y'. E:echie (1962)1 All N.L.R. 113 to include the following but excluding a co-accused-

 

(1)    A participant in the actual crime charged (participes criminis).

 

(2)    A receiver of the property which the accused is charged with stealing:

 

(3)    A participant in any other crimes alleged to have been committed by the accused where evidence of such other crimes is admissible to prove system or intent or to negative accident.

 

Where an accomplice gives evidence against an accused, the trial Judge is required by the provisions of section 177(1) of the Evidence Act, Cap. 62 to warn himself that it is unsafe to convict upon such evidence if it is uncorroborated.

 

Now since the 2nd appellant did not testify as an accomplice but as coacc used, his testimony could not have come within the ambit of section 177 subsection (1) of the Evidence Act, and by virtue of the provisions of subsection (2) of section 177 of the Evidence Act the trial Judge was not under any obligation to warn himself before accepting or acting on the testimony of the 2nd appellant. However, the actual position here is that the 2nd appellant did not incriminate the 1st appellant by testifying. It was his statement to the police, exhibit 3, that was held by the learned trial Judge to have implicated the 1st appellant. On examining the exhibit, it is clear that it is not a confessional statement, for nowhere in the statement did the 2nd appellant admit or state that he committed the culpable homicide charged. By the provisions of section 27 subsection (3) of the Evidence Act, Cap. 62 -

 

(3)    Where more persons than one are charged jointly with a criminal offence and a confession made by one of such persons in the presence of one or more of the other persons so charged is given in evidence, the court, or jury where the trial is one with a jury, shall not take such statement into consideration as against any of such other persons in whose presence it was made unless he adopted the same statement by words or conduct.

 

Since the 2nd appellant made no confession in exhibit 3 and the 1st appellant did not admit its contents by words or confuct, the learned trial Judge was in error when he considered exhibit 3 as incriminating evidence against the 1st appellant. In fact, exhibit 3 is at best a piece of hearsay evidence given against the 1st appellant which the trial Judge should not have acted upon. Furthermore, by the provisions of rule 7 of the Criminal Procedure (Statements to Police Officers) Rules, cap. 30 of the Laws of Northern Nigeria, 1963 applicable to Kwara State -

 

(7)(1) When a police officer has decided to make the same complaint against two or more persons and their statements are taken separately, the police officer shall not read such statements to the other person or persons, but each of such persons shall be given by the police officer a copy of such statements and nothing shall be said or done by the police to invite a reply:

 

         Provided that where such a person is an illiterate, the statement may be read over or interpreted to him apart by some person other than a police officer and anything said to such reader by such person when the statement is read shall not be admissible in evidence against him.

 

(2)     If such person desires to make a statement in reply, a caution shall be administered.

 

 

There is no evidence that the provisions of this rule had been followed by the prosecution after the 2nd appellant made exhibit 3, incriminating the 1st appellant. this is a very serious omission by the police and is fatal to the prosecution's case against the 1st appellant in view of the provisions of rule 9 of the Criminal Procedure (Statement to Police Officers) Rules, Cap. 30 which provides -

 

(9)     Save as provided in the Evidence Law, no Statement made to a police officer by a person against whom he has decided to make a complaint shall be admissible in evidence in a court unless such statement is made in accordance with these rules.

 

It follows that from the point of view of the 1st appellant exhibit 3 was inadmissible by virtue of rule 9 since it was not shown by the police to the 1st appellant as required under rule 7 of the Criminal Procedure (Statements to Police Officers) Rules, Cap. 30. Therefore, the learned trial Judge was wrong in relying on it to convict the 1st appellant of culpable homicide punishable with death.

 

For these reasons I too will allow the appeals by both the 1st and 2nd appellants. The decision of the Court of Appeal is hereby set aside and the convictions and sentences passed against the appellants are hereby quashed. In their place I enter a verdict of not guilty and both the 1st and 2nd appellants are hereby acquitted and discharged.

 

Judgement Delivered by

Kawu. J.S.C

 

I have had the advantage of reading in draft, the lead judgment of my learned brother, Obaseki, J.S.C., which has just been delivered. I entirely agree with his reasoning and also with his conclusion that the appeal has merit and should be allowed. For all the reasons contained in the said judgment, I too would allow the appeal. The appeal is hereby allowed and the conviction of the 1st and 2nd appellant and the sentence of death passed on them are hereby set aside. A verdict of not guilty is entered, and both appellants are hereby acquitted and discharged.

 

Judgement Delivered by

Agbaje. J.S.C

 

I have had the opportunity of reading in draft the lead judgment of my learned brother Obaseki, J.S.C. I agree entirely with him that the appeals of both appellants must succeed.

 

The appellants were two of the seven accused prsons who stood trial at a Kwara State High Court for the murder of one Mohammed Dan Mauta on or about 25/12/81 at Aboko Village within the Kwara Judicial Division contrary to and punishable under S.221A of the Penal Code.

 

The learned trial Judge Adeniyi, J., in his judgment dated 5/9/83 found four of the accused persons including the appellants guilty of the offence charged and sentenced them to death. The remaining three accused persons were found guilty of a lesser offence of causing grievous hurt and each of them was sentenced to two years' imprisonment.

 

The four accused persons convicted of murder appealed against their convictions and sentences to the Court of Appeal, Kaduna Division. In that court the appeals of the present appellants who were the 1St and 2nd accused persons at the trail court failed whilst those of the other two convicted persons succeded. This is a further appeal by the appellants against their convictions and sentences.

 

The thrust of the submissions of counsel for the appellants, Chief F.O. Akinrele, S. A. N., that the convictions of both appellants could not stand was predicated on the recognition by the lower court that the learned trial Judge misdirected himself in law on the standard of proof on the prosecution on the issue of alibi which the appellants undoubtedly raised in this case.

 

As regards the alibi raised by each of the accused persons the learned trial Judge held as follows:

 

        After sifting the evidence relating to alibi pleaded by each accused as supported by his witnesses and weighting the same against the evidence proferred by the prosecution witnesses on that point I find that the weight of evidence or the balance of probability tilts on the side of the prosecution. In consequence thereof the respective plea of alibi totally fails. Those pleas of alibi must be rejected having regard to be (sic) clear and strong evidence of P.W. 2 and P.W. 3 both of whom also took part in the arrest and the identification parade. See the classic case of Oi-tese Yanor V. The State 1965 N.M.L.R. 337. The basic law of this point is well stated in Suberu Be/b & Ors.  Commissioner of Po/ice (~959-196l) 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 a defendant in a civil case: it is discharged by balance of probability and not by proof beyond reasonable doubt.

 

The clear implication from the above is that the learned trial Judge was of the view that the standard of proof required from the prosecution in the onus on it to disprove the alibi of the accused persons was on a balance of probabilities and not on proof beyond reasonable doubt.

 

The Court of Appeal said on this point as follows:

 

                Obviously, the learned trial Judge was wrong on the burden of proof. . . as regard alibi.

 

So, it is clear that the lower court recognised it that the trial court was in error in its view on the point in question.

 

In fact the following cases cited to us by counsel for the appellants to wit.

 

        R. v. Johnson 19611 W.L.R. 1478; Yanor v. The State 1965 N.M.L.R. P.337; Arebameni v.The State (1972) 4 S.C. 35 P.40-4l; ikono v. The State 1973 5 S.C. 231 and R. v. Abraham  (1973) 3 A.E.R. P.694.

 

make it abundantly clear that the onus is on the prosecution to negative any defence properly raised by an accused person on proof beyond reasonable doubt.

 

Because of the following proviso to section 20(1) of the Court of Appeal act 1976 dealing with determination of appeals in criminal cases, namely:-

 

         Provided that the Court may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.

 

I am prepared to hold that this misdirection on the part of the learned trial Judge wil not ipso facto lead to the appeals of the appellants having to be allowed, if in actual fact no substantial miscarriage of justice has been occasioned by it. In other words, I will dismiss their appeals if on the totality of the evidence upon which the learned trial Judge based on the convictions of the appellants, it is clear that any reasonable tribunal properly directed would have ben satisfied beyond reasonable doubt about the guilt of the appellants of the offence charged.

 

First "Quite apart from the eye-witness accounts of the circumstances or event immediately leading to or preceding the death of Mohammed Dan Mauta on the fateful day, one of the main pillars of the case for the prosecution is Exh. 2, the confessional statement of accused I and its English translation or equivalent.

 

.........  the endorsement of Exh. 2 by Rev. Asaju is in direct contradiction of his evidence and of that of P.W. 4 regarding the actual time the confessional statement of accused I was taken down. That endorsement reads:

 

         I certify that the above congested (sic) statement was made and recorded before me. Danladi made the statement voluntarily and that he spoke in Yoruba. It was recorded by Corporal Usman Ejiko of State C.I.D. Ilorin,

 

Signed U.A.C. Judge

Rev. I.A.K. Asaju'

 

        This has undermined or weakened their evidence, thereby creating some doubt in respect of the voluntariness of Exh. 2 as to the material time it was made. Thus, helpful as its content would have been to the case for the prosecution, Exh. 2 cannot be relied upon in convicting accused 1.

 

Second "As it 'Exh. 2' is now discarded for reasons earlier on given, the court has to rely only on the oral evidence of the prosecution witness 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." (words in brackets mine).

 

Third "Above all, the statement of accused 2, (Exh. 3) Tukura Zali, neatly links accused 1 with the commission of the offence or the killing of the deceased." (word in brackets mine).

 

& Fourth "Even shorn of that evidence (Exh. 3) the remaining testimony is sufficient to convict not only accused 1 but also each of the other accused persons.

 

It is clear misdirection in law on the part of the learned trial Judge to use the statement of a co-accused person as he did when he relied on the statement of the 2nd accused to the police, Exh. 3, as evidence against the 1st accused. See Atanda '. A.G. (1965) N.M.L.R. 225. But then later on in his judgment he said that even without that evidence the remaining evidence was sufficient to convict the appellant. The implication of this is that, if the learned trial Judge was right in this regard, this misdirection could not have occasioned a miscarriage of justice.

 

The evidence implicating the appellants besides Exh. 3 is the evidence of P.W. 2 and P.W. 3, Police Officers, who gave eye witness accounts of what, according to them, happened on the fateful day. Their evidence was very damning against the appellants. If the evidence is credible and reliable and seeing that the evidence is an eye witness account of what took place it could constitute stronger evidence against the evidence on which the appellants relied for their defence of alibi. In that event one might say that the misdirection of the learned trial Judge on the standard of proof when the prosecution is negativing a defence of alibi has not occasioned a miscarriage of justice.

 

This takes me to one aspect of this case which, if it had been brought to the notice of the learned trial Judge, as it ought to have been the case by the defence counsel at the trial, would have cast very serious doubts on the credibility of the evidence P.W. 2 and P.W. 3 gave in witness box to the effect that they were both present together at the scene of the crime and witnessed the events culminating in the death of the deceased Mohammed Dan Mauta.

 

In the application by J.T. Adeyemi Esqr. State Counsel II for leave of the High Court to prefer a charge against the accused persons without first holding a preliminary inquiry, there was included proof of evidence of witnesses to be called at the trial. The proof of evidence of P.W. 2 Abayo Abimuku was given. The relevant portions of that evidence for the purposes of the aspect of this case I am now talking about are as follows:

 

        I am a police man serving in Aseni Police Post under Kogi L.G.A. I could remember 25/12/81 at about 1200 hrs. I was on duty at Aseni Police Post as the only person in afternoon duty. After staying at police station for some times I decided to go to Ahoko village under our jurisdiction for patrol or observation with one CPL Augustine Garba. So both of us left for Ahoko village on enquiry. On reaching the village we met some member of Gwaris unknown to me crying bitterly. When I enquired from the Gwaris to know why they were crying. One of them named not known then (now one of the accused) told me that I should assist them, because one fulani man killed their brother by name Phillips Zaki. On hearing the story I and CPL Garba Augustine went straight to the scene of Crime.

 

        On reaching the scene in a certain farm, I met the deceased lying with his face downward. Two of us I and CPL Augustine Garba observed the corpse and we saw where he sustained injury on his head, although we did not touch his body. The injury looked exactly as a gunshot. On seeing this, I decided to look for a transport to come and report the incident at Lokoja Police Station. As I ~'as negotialing ft)~ a tiansport to Lakoja he CPL Augustine Garba left to inform the N.C.O. in (harge Aseni PO/i('e Post in person of Ihrahim Mohammed. I did not get the t'.anspo,~t in time to Lokoja. So while I was standing by the main road looking for vehicle, one man (now deceased) name not known to me but latter. As I had earlier stated I was actually present at the scene or spot where the Deceased Mohammed and Dan Mauta was killed. I could remember it was one Gwari man by name Danlam who first of all marcheted the Deceased with a cutlas on the head . .

 

         I could also remember on that 25/12/81 at about 1400 hrs. the Deceased Mohammed Mauta arrived Ahoko village, in a certain mini Bus Taxi with about other five men, but I can't identify the rest men. Even it was due to my efforts that other five men escaped from Ahoko village to their destination not known to me, otherwise the angry Gwari men would have killed them . . . He Mohamed Mauta then started asking me what happened to the villager as they were still crying by then. As I was trying to explain to him Mohammed Mauta about what happened, the villagers (now Accused persons in the case) but names not known came in group, and one of them attacked Mohammed Mauta with a cutlass. The others now accused persons came and they all started attacking the Deceased with their cutlases, they cut his head and his two legs were also cut off. All efforts made by me to prevent the villagers from killing Mohammed Mauta proved abortive as I was the only Police man present at the scene. The villagers over powered me completely with annoyance due to the brothers killed by the Fulanis. (italics mine).

 

This evidence is clearly contrary to the evidence he, P.W. 2, gave in the witness box to the effect that he and P.W. 3, Augustine Garuba were present at the scene of the crime and saw all that happened there. Unfortunately learned Counsel for the accused persons did not at the trial court cross-examine the witness on his statement, which must have been made available to counsel for the defence and which in fact is part of the record of the proceedings in this appeal. I do not think that this lapse on the part of the defence counsel can prevent this court from doing justice in this case in a serious case of this nature-a capital offence-by paying due regard to all the available material in the appeal record.

 

The case of R. v. Johathan Adebanjo & JO Others 2 W.A.C.A. 315 is an authority for what I am about to do now. For that decision recognises it that an appellate court can give effect to knowledge of additional evidence during the course of hearing a criminal appeal. In this regard I refer to the following passage in the judgment of that court by Aitken, J., at pages 326-7 of the report:-

 

         On the evidence before the learned Judge we certainly could not have arrived at the conclusion that his verdict against the 1st, 2nd, 4th, 5th, 6th, 7th, 8th and 9th accused on the charge of conspiracy were wrong in fact, though we do feel varying degrees of doubt as to whether certain parts of the evidence on which they were founded are not either fabricated or exaggerated. Examples could easily be given in each of these categories, but they would probably serve no very useful purpose and this judgment is already of almost excessive length. On the other hand circumstances have arisen during the hearing of the appeal which compel us to ask ourselves very seriously the question, whether a miscarriage of justice may not have occurred; and those circumstances are the discovery that Ajatu, the principal witness for the Crown, gave three previous statements to the political and police officers at Ijebu Ode, the first two of which are utterly at variance with her evidence before the learned trial Judge and the last of which is materially different therefrom. In point of fact the appeal record only disclosed one such statement, and it is entirely due to the conspicuous fairness of Mr. Sayle, Acting Solicitor-General, that all three statements were produced before us.

 

That court then went on to give effect to the knowledge of the additional evidence in the course of the appeal which turned out to result in the appeals of some of the apellants being upheld and their convictions for conspiracy to kill quashed.

 

It appears to me clear that had learned counsel for the defence cross-examined P.W. 2 on his statement to the police that would have brought it to the notice of the learned trial Judge that the evidence of P.W. 2 in the witness box was at variance with his statement to the police in a very material particularity. In that event it is at least certain that P.W.2's credibility as a witness would have been depreciated if not entirely destroyed. See O'iubogu v. The State (1974) 9 S.C. I and Queen v. Ukpong (1961)1 All N.L.R. 25; [1961] 1 S.C.N.L.R. 53. It is also probable that the attitude of the learned trial Judge towards the evidence of P.W. 3, Augustine Garba, another police officer, that he was present at the scene of the crime with P.W. 2 when everything happened and saw it all would have undergone a decided change.

 

In the light of what I have just been saying above it apears to me that no reasonable tribunal would convict the appellants on the evidence of P.W. 2 and P.W. 3 alone of the offence charged. In the circumstances it cannot even be said that the evidence of P.W. 2 and P.W. 3 constituted stronger evidence against the evidence relied upon by the appellants for their defence of alibi. Accordingly I am in no doubt that the misdirection of the learned trial Judge on the standard of proof required when prosecution is disproving an alibi has occasioned a miscarriage of justice.

 

In the result for the above reasons and the fuller reasons given in the lead judgment of my learned brother Obaseki, J.S.C. I too allow the appeals of both appellants. I hereby set aside their convictions and sentences and in their places I enter a verdict of discharge and acquittal.

 

Judgement Delivered by

Nnaemeka-Agu. J.S.C

 

This appeal highlights in bold relief, one important feature of criminal justice in our courts. It shows that though our judges play the dual role of Judge and jury, yet they still have to direct themselves correctly on the law as well as the material facts of a case.

 

My learned brother, Obaseki, J.5.C., has fully set out the facts that led to the trial, before Adeniyi, J., sitting in a Lokoja High Court, of the two appellants, along with five others with culpable homicide punishable with death under section 221(A) read together with section 7 of the Penal Code; how the two appellants (who were 1st and 2nd accused persons at the trial), were convicted along with accused Numbers 5 and 6; how accused Numbers 5 and 6 were discharged, on appeal, by the Court of Appeal coram; Wali, Akpata and Ogundere, JJ.C.A. I do not intend to repeat those facts in this further appeal to this court by the two appellants. He has also set out the issues for determination so admirably formulated by the learned Senior Advocate for the appellants from the grounds of appeal filed. I shall be content to make some brief comments on those issues.

 

I agree that the courts below were in error to have held that on the appellants' defence of alibi they had a burden to prove it on a balance of probabilities. This court has said it so many times that an accused person who raises a defence of alibi does not assume the burden to prove the alibi. See: Adedeji v. The State (1971)1 All N.L.R. 75; Ozulonye v. The State (1981)1 N.L.R. 38. All that the law imposes on him is an evidential burden to raise the defence of alibi at the earliest possible opportunity and give particulars of that other place where he was at the time of the crime-such particulars that the police can investigate. An evidential burden is generally the burden of introducing, adducing or producing evidence on any particular issue: Esangbedo v. The State (1989)4 N.W.L.R. (Pt. 113) 57 at p.70. As, in criminal cases, the burden is always on the prosecution to prove the case against an accused person beyond reasonable doubt, a burden that never shifts, it is the duty of the prosecution to investigate the alibi and call all necessary evidence in rebuttal thereof. The burden on the prosecution is to negative the defence beyond reasonable doubt: Mancini y'. D.P.P. (1942) A.C. 1. That onus can only be discharged if the prosecution calls evidence of such a quantity and quality as to negative the defence of alibi-beyond reasonable doubt: see Arebamen v. The State (1972) 4 S.C. 35 p. 4(~1; ikono v. The State (1973) 5 S.C. 231; and Yanor v. The State (1965) N.M.L.R. 337. Where they all fail to investigate the alibi once the accused person has discharged his evidential burden, then they have left a room for doubt, the benefit of which ought to be given to the accused: Ukwunnenyi V. The State (1989)4 N.W.L.R. (Pt. 114)131 at p.149. In the instant case, a proper direction should have been that the 2nd appellant who duly raised his defence of alibi as soon as possible in his statement to the police had no duty to prove anything, having discharged his evidential burden; but that the 1st appellant who only raised his alibi in the witness box did not discharge the evidential burden on him and so had to prove it by evidence.

 

Having satisfied myself that there is a misdirection on the issue of onus of proof on the appellant's defences of alibi, I do not think I can rely on the case of Rex V. Jonathan Adebanjo & Ors. (1935) 2 W.A.C.A. 315 at pp. 32~7, to find that the misdirection is substantial. This is because although the previous statement of P.W. 2 is contained in the proof of evidence exhibited by the prosecution while seeking the consent of the learned trial Judge to file an information, it is no legal evidence before us. It was neither tendered in the courts below nor even in this court. For one thing, the statements relied upon by the appellate court in Adebanjo's case were produced in the court of appeal. In the instant case, it is not. We were never addressed on that. A statemet of an accused person which forms part of the documents for seeking the consent of the trial Judge is no legal evidence before this court or the courts below. I am therefore of the view that before we can use the statement it ought first to be made evidence before this court. I shall therefore be content to hold unto the traditional view that any misdirection as to onus of proof is fatal to a conviction unless it can be shown that on a proper direction, the result would have been the same. In Rex v. Basil Ranger Lawrence 11 N.L.R. 6, Lord Atkin delivering the judgment of the Privy Council stated at page 7:

 

         But, speaking generally, it has to be remembered that it is an essential principle of our criminal law that a criminal charge has got to be established by the prosecution beyond reasonable doubt: and it is essential that the tribunal of fact should understand this. Unless the Judge makes sure that the Jury appreciates their duty in this respect his omission is as grave an error as active misdirection on the elements of the offence, and a verdict of guilty by a jury who have not taken this fundamental principle into account is given in a case where the essential forms of justice have been disregarded. In such a case, unless it can be predicated that properly directed the jury must have returned the same verdict a substantial mis-carriage of justice appears to be established.

 

I believe that this encapsulates the law. The position is the same in this country in which the Judge is Judge and jury. In this case, there can be no doubt that the courts below failed in their important duty of making a proper authoritative statement as to ~e onus and standard of proof in such cases, such as could have guided them to approach the facts correctly. Yet, it has not been suggested to us tha~in spite of the clear misdirection on the onus and standard of proof in defence of alibi put forward by the appellants, the result would have been the same upon a proper direction. Besides, the learned trial Judge, having disregarded the other statements Exhs. 2 and 3 of the appellants which appeared confessional, I wonder whether there are other pieces of evidence from which I can affirmatively hold that the apellants would have been properly convicted, in any event. For one thing, the use he made of Exh. 3A, the unsworn and unadopted statement of the 2nd appellant to connect and convict the 1St appellant is wrong for the reason I shall give below.

 

In the above state of the law it appears clear to me that the failure of the learned trial Judge and the Court of Appeal to appreciate that the failure of the prosecution to investigate the defence of alibi raised by the 2nd appellant deprived him of the benefit of doubt to which he was entitled. Their wrong approach to the whole issue of the defence of alibi as one on which the appellant must call evidence and prove beyond a balance of probabilities drastically affected the vital issue of onus of proof. For the reasons I have given, it occasioned a miscarriage of justice.

 

It is also true that the learned trial Judge convicted the 1st appellant substantially on the statements, Exhs. 3 & 3A, of the 2nd appellant, a coaccused, which neither appellant adopted or reaffirmed on oath at the trial. The learned trial Judge's reliance on it is against the letter and spirit of section 27(3) of the Evidence Act. A confessional statement of a co-accused is no evidence against the other accused person, unless he adopted the confession by word or conduct: See Evbuomwan v. Commissioner of Police (1961) W.N.L.R. 257. It follows therefore that, quite apart from what I have said about the defences of alibi by the appellants and their effect on the onus and standard of proof, the 1st appellant was convicted on illegal evidence.

 

For these reasons and the fuller reasons containd in the judgment of my learned brother, Obaseki, J.S.C., which I adopt as my own, I allow the appeal and set aside the judgments of the Court of Appeal and the High Court and make the same orders as have been made in the lead judgment.

 

 

Counsel

 

Chief F.O. Akinrele. S.A.N

With Adams Usman

For the Appellant

Idowu adewunmi Esq

D.P.P. Kwara State Ministry of Justice

For the Respondent