Supreme Court cannot interfere with concurrent finding of lower courts unless appellant shows sufficient reasons (3)


SC. 241/2013

THE STATE…………………………………………………. RESPONDENT

The said defence of alibi is not conceded with levity to an Accused person due to the fact that, as indicated above, when properly established, it has the far-reaching effect of exculpating him from criminal responsibility, Ebre v. The State (supra). Thus, to be entitled to its beneficent effect, such an Accused person must raise it at the earliest opportunity, Hassan v. The State (2001) 7 S.C (Pt. II) 85, which would, preferably, be in his extra-judicial statement. This is to offer the Police an opportunity either to confirm or confute its availability to the Accused person, Ibrahim v. The State (1991) 5 S.C. 171; Nwabueze v. The State (1988) 7 S.C. (Pt. II) 157; Ikemson v. The State (1989) 6 S.C. (Pt. I) 114. Above all, the said defence must be unequivocal as to the particulars of the Accused person’s whereabouts and those present with him, Onyegbu v. The State (1995) 4 SCNJ 275, 285- 286;

It is only where such an Accused person raised the said defence at the earliest opportunity without any ambiguity that a burden is cast on the Prosecution to investigate it, Eyisi v. State (2000) 12 S.C. (Pt. I) 24 and to disprove same, Eke v. The State (supra). Failure to investigate the defence of alibi raised in such circumstance will lead to an acquittal, Yanor v. The State (1965) ANLR (Reprint) 199; In effect, where a defence of alibi consists of vague accounts which are devoid of material facts worthy of investigation, the Police, in the circumstance, would least be expected to embark on a wild goose chase, Ebre v. The State (supra) at 636. In situations, such as was the case at the court of trial, where the Accused person raised the defence of alibi during the trial, it would be availing. Such a strategy would simply be viewed as a ploy, deliberately, contrived to deny the Prosecution its right and duty to investigate the defence, Hassan v. State (2001) 7 S.C. (Pt. II)85. Worse still, where an Accused person was fixed at the

scene of crime, any plea of alibi would be valueless, Obakpolo v. The State (1991) 1 SCNJ 91, 107, 108.4 Now, the category of evidence known as circumstantial evidence, which is, more often than not, the best evidence, Obosi v. State (1965) NMLR 119; Ukorah v. State (1977) 4 S.C. (Reprint) 167; Lori v. State (1980) 8-11 S.C. (Reprint) 52; Onah v State (1985) 12 S.C. (Reprint) 40; Ebenehi v. State (2009) All FWLR (Pt. 486) 1825, 1832-1833;

Ijioffor v. State (2001) 4 S.C. (Pt. II) 1, is the evidence of surrounding circumstances which, by undersigned coincidence, is capable of proving a proposition with the accuracy of mathematics, Ijioffor v. State (supra). This is so for, in their aggregate content, such circumstances lead cogently, strongly and unequivocally to the conclusion that the act, conduct or omission of the Accused person caused the death of the deceased person, Idiok v. State (2008) 4-5 S.C. (Pt. I) 84. Simply put, it means that there are circumstances which are accepted so as to make a complete and unbroken chain of evidence, Omotola and Ors. v. State (2009) 2-3 S.C. (Pt. II) 196. Where such circumstances are established to the satisfaction of the court, they may be properly acted upon, Wills on Circumstantial Evidence (Seventh edition) 324; A. Okekeifere, Circumstantial Evidence in Nigerian Law (Port Harcourt: Law-house Books, 2000) 1; Omotola v. State (supra). Thus, where there is no eye witness account or direct evidence of the commission of an offence, a conviction may be based on circumstantial evidence, Igbale v. State (2004) 15 NWLR (Pt. 896) 314.

However, such circumstantial evidence must point to only one conclusion, namely, that the offence had been committed and that it was the Accused person who committed It, Dick v. C. O. P. (2009) 9 NWLR (Pt. 1147) 530, 551 C.A. For the purpose of drawing an inference of an Accused person’s guilt from circumstantial evidence, there must not be other co-existing circumstances which would weaken or destroy the inference, Igho v. State (1978) 3 S.C. (Reprint) 87: State v. Edobor (1975) 9-11 S.C. (Reprint) 69. Thus, all other factors and surrounding circumstances must be carefully considered for they may be enough to adversely affect the inference of guilt, Lori v. State (1980) 8-11 S.C. (Reprint) 81; Udedibia v. State (1976) 11 S.C. (Reprint) 133; Aigbadion v. State (2000) 4 S.C. (Pt. I) 1.

The explanation for this need for circumspection is simple: evidence that falls within this category may be fabricated to cast aspersion on other people, per Lord Normand in R v. Tepper (1952) 480, 489 approvingly adoptedin State v. Edobor (1975) 9-11 S.C. (Reprint) 69, 77. That is why a court must, properly, appraise the circumstantial evidence adduced by the Prosecution before convicting an Accused person thereon, Adepetu v. State (1998) 7 S.C. (Pt. I) 117; Iko v. State (2001) 7 S.C. (Pt. II) 115; Orji v. State (2008) 3-4 S.C. 198.

It must be noted that there is no yardstick by which any circumstantial evidence can be measured before a conviction can be entered against an Accused person. Thus, each case depends on its own facts. However, one test which such evidence must satisfy is that it should lead to the guilt of the Accused person and leave no degree to possibility or chance that other persons could have been responsible for the commission of the offence, Ijioffor v. State (supra) 385; Ebenehi v State (supra).

With regard to this appeal, I take the view that the lower court, correctly, mapped the nexus of the criminality of the Accused person in the circumstances. His Lordship then proceeded to instantiate the circumstances which favoured the inferences that the Appellant, intentionally, caused the death of the deceased person. Just like the lower court could not fault the findings of the trial court on the guilt of the Appellant, I find that I cannot, equally, fault the lower court in its concurrent finding on the Appellant’s guilt.

One final point: the submission of the Appellant’s counsel in Paragraph 8.02 of the brief bespeaks his misconception of the pungency of the evidence, which the trial court believed and the lower court affirmed, that the deceased person was last seen with the Appellant on the fateful night. The last seen doctrine, a doctrine of global application, Madu v. The State (2012) 6 S.C. (Pt. 1) 80; also, referred to as “the last seen theory,” Rajashkhanna v. State of A.P (2006) 10 SCC 172, is applied in homicide cases in Nigeria, Rabi Ismail v. The State (2011) 6-7 S.C. (Pt. V) 148. It creates a rebuttable presumption to the effect that the person last seen with a deceased personbears full responsibility for his or her death, Ala v. The State (2010) 2 MJSC 152, 186 -187. Thus, where an Accused person was the last person to be seen in the company of the deceased person, he has a duty to give an explanation relating to how the latter met his or her death.

In the absence of such an explanation, a trial court and even an appellate court will be justified in drawing the inference that he (the Accused person) killed the deceased person, Igabele v. State (2006) 2 S.C. (Pt. II) 61; Obosi v. State (1965) NMLR 140; The doctrine has been held to be an exception to the watertight constitutional provision that a person is presumed Nwaeze v State (supra); Obosi v. State (supra); Uguru v. State (supra); The State v. Kalu (1993) 7 SCNJ 113, 124-125; Adepetu v.

The State (supra); Rabi Ismail v. The State (2011) 6-7 S.C. (Pt. V) 148. There was ample evidence before the lower court that the deceased person was last seen in the company of the Appellant. Unfortunately, he (the Appellant) could not give an explanation relating to how the deceased person met his death. The trial court, accordingly, convicted him. The lower court, rightly, affirmed the conviction and sentence on the Appellant. Surely, in the absence of such an explanation, both the trial court and the lower court were justified in drawing the inference that the Appellant killed the deceased, Igabele v. The State (supra); Obosi v. The State (supra); Adepetu v. The State (supra); Adeniji v. The State (supra); Emeka v. The State (supra); Uguru v. The State (supra).

I find no justification for disturbing their concurrent findings. This appeal has no redeeming feature. I, hereby, enter an order dismissing it.
In consequence, I further enter an order affirming the lower court’s affirmation of the trial court’s conviction of, and sentence on, the Appellant. Appeal dismissed.

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