Applying The Doctrine Of Recent Possession To Dislodge The Defence Of Alibi

In the Supreme Court of Nigeria Holden at Abuja On Friday, the 18th day of December, 2020 Before Their Lordships Mary Ukaego Peter-Odili

Olukayode Ariwoola

Kudirat Motonmori Olatokunbo Kekere-Ekun

John Inyang Okoro

Ejembi Eko

Justices, Supreme Court

SC.797/2016

Between

CHIDIEBERE IGWE APPELLANT

And

(Lead Judgement delivered by Honourable Kudirat Motonmori Olatokunbo Kekere-Ekun, JSC)

Facts

The Appellant was charged before the High Court of Lagos State on a two-count charge of conspiracy to commit armed robbery and armed robbery, contrary to Sections 402(2)(a) and 403(a) of the Criminal Code Law of Lagos State. It was alleged that on 22nd May, 2009, the Appellant and others at large conspired to commit armed robbery and did rob one Michael George (PW3) of a Honda Accord Salon Car.

In proof of its case, the Respondent called three witnesses including PW3, who all testified that the Appellant and the two others were found in possession of the car shortly after the robbery. PW3 also identified the Appellant, as one of the people who robbed him.

After the Respondent had closed its case and at the resumed hearing for the defence, the Appellant filed an application seeking to re-call PW3 for further cross-examination. The trial court refused the application, and called on the Appellant to proceed with his defence. The Appellant raised the defence of alibi. He stated that he was at a wake-keeping ceremony and left the venue to ease himself, when he saw two men pushing a vehicle. He stated that he went to assist them in moving the vehicle off the road, when he was arrested. At the conclusion of trial, the court found the Appellant guilty of the lesser offences of conspiracy to rob and robbery. He was sentenced to 21 years imprisonment. Dissatisfied, the Appellant appealed to the Court of Appeal which dismissed his appeal, and upheld the judgement of the trial court. The Appellant filed a further appeal to the Supreme Court.

Issues for Determination

In deciding the appeal, the Supreme Court considered the following issues:

1. Whether the Court of Appeal was right in upholding the conviction of the Appellant, when the evidence adduced at the trial did not show that the Police investigated or verified the Appellant’s defence of alibi.

2. Whether the Court of Appeal was right in its decision to uphold the trial court’s acceptance of the evidence of PW3 identifying the Appellant as one of those who robbed him, in spite of the improper conduct of the identification parade carried out by the Police.

3. Whether the Court of Appeal was right to uphold the trial court’s decision, not to recall PW3 for further cross-examination.

Arguments

On the first issue, counsel for the Appellant submitted that where the defence of alibi is raised by an accused person, the investigating authority has the duty to investigate and verify the alibi, and failure to investigate an alibi would lead to the acquittal of the accused. He cited MOHAMMED v THE STATE (2014) 2 NWLR (Pt. 1421) 387. He submitted that the Court of Appeal erred when it upheld the trial court’s conviction of the Appellant, where there was no evidence on record showing that the alibi was investigated by the Police even though it was raised timeously in his extra-judicial statement. In response, counsel for the Respondent argued that where a defence of alibi is relied upon, the accused person must give sufficient particulars of his whereabouts and who he was with to corroborate the alibi. He referred to the decision in OLAIYA v THE STATE (2010) 3 NWLR (Pt. 1181) 423 in support of his position. He argued further that where there is evidence fixing the accused person at the scene of the crime, the defence of alibi cannot avail him, and the Police is not obliged to investigate the said alibi. He cited AIGUOBARUEGHIAN & ANOR. v THE STATE (2004) LPELR–270 (SC). Counsel argued further that the Appellant did not furnish any particulars of the alibi upon which the Prosecution could effect an investigation to either support or debunk it, and having been caught in possession of the stolen vehicle soon after it was stolen, the doctrine of recent possession as contained in Section 167(a) of the Evidence Act would apply.

On the second issue, counsel for the Appellant argued that the Court of Appeal erred in affirming the trial court’s rejection of the evidence of the Appellant and his witness, DW2, regarding the improper conduct of the identification parade carried out by the Police. Responding to the Appellant’s submission, counsel for the Respondent argued that the testimony of the Appellant and his witness on the identification parade were at variance, and this brought to the fore the lack of credibility of the witnesses. He argued further that there was no difficulty around the identification of the Appellant who was found in possession of the stolen vehicle the same night of the robbery, and whom PW3 identified as one of those who robbed him; hence, making the identification parade unnecessary.

Regarding the third issue, counsel for the Appellant argued that the recall of PW3 was necessary and in the interest of justice, in view of the questions intended to be put to him which were vital. He submitted that the Court of Appeal wrongly upheld the trial court’s refusal to recall him for further cross-examination, and this occasioned a miscarriage of justice to the Appellant. Conversely, counsel for the Respondent argued that the trial court exercised its discretion judiciously and judicially, by not allowing the recall of PW3 in the prevailing circumstances.

Court’s Judgement and Rationale

In its determination of the first issue argued by parties, the court held that a defence of alibi must be raised at the earliest opportunity to enable the Police investigate it and rebut it, in order to prove its case beyond reasonable doubt. The Defendant must also give sufficient particulars of his whereabouts, and the persons he was with. On the other hand, the defence of alibi would crumble, where there is stronger evidence against it. Where the evidence of the Prosecution places him at the scene of a crime or positively, unequivocally and irresistibly points to the guilt of the accused, the defence of alibi becomes of no moment. Reference was made to EBENEHI & ANOR. v THE STATE (2009) 5 NWLR (Pt. 1138) 431 at 448A.

The court held that apart from the Appellant’s oral evidence during the trial, there was no evidence before the trial court to prove that the defence was raised at the earliest opportunity. The extra-judicial statement to the Police in which the Appellant purported to have raised the defence of alibi at the earliest opportunity, was not tendered in evidence. Furthermore, he did not supply sufficient particulars of whom he was with at the said wake-keeping ceremony, to assist the investigating officer in authenticating the alibi. By the doctrine of recent possession under Section 167(a) of the Evidence Act, a man who is found in possession of stolen goods soon after the theft is either the thief, or has received the goods knowing them to be stolen, unless he can account for his possession. The Appellant’s possession of the stolen vehicle shortly after the robbery incident, fixed him to the scene of the crime at the material time. This dislodged the alibi, and discharged the Police of its obligation to investigate the alibi.

On the 2nd issue, the court held that the factors the court must bear in mind in ascribing evidential value to eyewitness identification are: (a) The circumstances in which the eyewitness saw the suspect; (b) The length of time the witness saw the suspect – was it in difficult conditions?; (c) The opportunity of close observation; (d) Previous contact between the two parties; and (e) The lighting conditions – ADESINA & ANOR. v THE STATE (2012) 14 NWLR (Pt. 1321) 429; IKEMSON v THE STATE (1989) 3 NWLR (Pt. 110) 455. The graphic evidence of PW3 as to how he was robbed and identifying the Appellant as one of the robbers, was credible and unimpeached. PW3 testified that after he was robbed, he was driven by the Appellant and his accomplices for a considerable distance with several stops along the way, and the inner light of the car was switched on to enable the robbers search for valuables. He also testified that he was searched by the Appellant who dispossessed him of certain personal items, and also sat beside him in the back seat of the car when the light was switched on. Since the Appellant was the one found in possession of the remotely demobilised car soon after it was stolen, and the Appellant was in his company for a considerable time with an opportunity of close observation, PW3’s identification of the Appellant as one of those who robbed him could not be faulted, and the trial court which had the opportunity of observing him first-hand in the witness box believed him after proper evaluation.

Deciding the 3rd issue, the court held that it is the duty of a party who seeks the exercise of the court’s discretion in his favour, to place sufficient materials before the court to justify the grant of the relief he is seeking. In the instant case, the Appellant in his application to recall PW3, did not state the vital aspect of his case that the recall of PW3 was meant to clarify or assist. The trial court, in refusing the application, gave a dispassionate consideration to the circumstances of the case, and was satisfied that the Appellant had been given ample opportunity to cross examine PW3 and had utilised same. The Appellant did not show any special circumstance to warrant the activation of the trial court’s discretionary power in his favour, and the Court of Appeal rightly found that the trial court exercised its discretion in refusing his application, judiciously and judicially.

Appeal Dismissed.

Representation

Ehis Agboga Esq. for the Appellant.

Oladapo Akinosun Esq. with L. Okocha Esq. and J. Ojelabi Esq. for the Respondent.

Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Report (NMLR)(An affiliate of Babalakin & Co.)