ESANGBEDO V. THE STATE

• Pages: 23-42

ESANGBEDO V. THE STATE

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ESANGBEDO V. THE STATE

BENSON ESANGBEDO

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APPELLANT

V

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THE STATE

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RESPONDENT

SUIT NO. SC 61/1988

SUPREME COURT OF NIGERIA

OBASEKI,

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J.S.C.

NNAMANI,

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J.S.C.

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KARIBI-WHYTE,

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J.S.C.

OPUTA,

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J.S.C.

NNAEMEKA-AGU, J.S.C.

7th July, 1989

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Appeals - Concurrent findings of fact - Attitude of Supreme Court - Re-opening of issues -

Interest reipublicae ut finis sit Own! - Effect.

Criminal Law and Procedure - Robbery - Defence of alibi - Requirements - Burden of proof

- Eye witness account - Credibility of - Extra -judicial statements - Admissibility as

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evidence - Effect.

Evidence - Witnesses - Credibility of witnesses - Contradictory evidence - Whether material

discrepancies - Extra judicial statements - Admissibility of - Effect - Burden of proof -

Criminal cases - Admissibility of additional evidence on appeal - Effect.

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ISSUES:

1.

Whether an appellate court can base its' findings on extra-judicial statements of

witnesses.

2.

Whether it is permissible to adrnit additional evidence on appeal.

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3. What is the judicial implication of the maxim

interest

reipublicae ut finis sit !Mum.

4.

What must be shown before it can be said that two eye witnesses have

contradicted each other.

5.

Whether discrepancies, such as differences in colour of dress worn by accused,

amount to material contradictions to discredit the testimonies of eye witnesses

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to a robbery.

6.

What is the attitude of the Supreme Court to concurrent findings of fact.

7.

What is the nature of the burden of proof in criminal cases.

8.

What is the position of the burden of proof, where the accused has raised a

defence of alibi.

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9. What does the law require in order for a defence of alibi to succeed?

10. What happens where, on investigation, an alibi is found to be false?

11.Whether there is a burden on the prosecution to lead evidence to disprove a

defence of alibi.

FACTS:

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The appellant, along with two others, were charged and tried in the Lagos High

Court, with the offence of armed robbery. The appellant was convicted, while the

other two accused persons were discharged and acquitted. The prosecution

witnesses who gave evidence at the trial, identified the appellant as being part of the

armed robbers, by various distinguishing marks, such as his complexion (albino)

and the fact that his ears were pierced.

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NIGERIAN SUPREME COURT CASES

[19891 3 N.S.C.C.

The appellant pleaded the defence of alibi, stating that he slept with his friend

(P.W.7) on the night in question, in the same room and on the same bed. When P.W.7

was cross-examined on this, he testified that the appellant slept with him in his room,

but not on the same bed. The appellant had slept on a chair, and P.W.7 was unable

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to say whether or not the appellant had left the room during the night. Counsel for

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the appellant urged the court that there were discrepancies in the evidence of the

prosecution witness, and contradictions, which render this testimonies unreliable,

and submitted that the extra-judicial statements of the witness should be admitted

in place of their testimonies.

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The learned trial judge, after considering the evidence in the case, held that the

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appellant's defence of alibi was not made out, and thus convicted the accused as

charged.

The appellant, dissatisfied with the decision, appealed to the Court of Appeal,

which summarily dismissed the appeal.

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The appellant thereupon appealed to the Supreme Court, contending,

inter alia,

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that the prosecution did not prove its' case against the appellant beyond reasonable

doubt in the rebuttal of the defence of alibi set up by the appellant, and that the

conflicts in the evidence of prosecution witnesses were material contradictions as

would occasion a miscarriage of justice if ignored.

HELD:

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1. An appellate court is bound to base it's consideration of every appeal before it

upon legal evidence upon which the court below acted. Even in the court of trial,

the only proper use that could be made of the extra-judicial statements of

witnesses is to use them for cross-examination of those witnesses in order to

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discredit their testimony to show that their testimony is unreliable. In that case,

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it would be necessary to tender the statements to draw the attention of each

witness to the portion of his previous statement that is in conflict with his instant

testimony, and give him the opportunity to explain the inconsistency.

2. On the premises that a party which has obtained judgment in a court of justice

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is not to be deprived of the benefits of the judgment except on very solid grounds,

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admission of further evidence in an appellate court is not allowed as a matter of

course. It is only permissible on settled principles and these are:

(a)

It must be shown that the evidence could not have been obtained and with

reasonable diligence, used at the court of trial;

(b)

The court must be satisfied that the evidence is such that, if given, it would

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probably have an important influence on the result of the case, though it need

not be decisive.

(c)

The evidence must be apparently credible, though it need not be controver-

tible.

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3. The necessary implication of the maxim

interest reipublicae ut finis sit litium

(it

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is in the interest of the State that there should be an end to litigations) is that an

appellate court ought not normally reopen issues of fact laid to rest at the trial

unless they are shown to be perverse, illegal or not a proper exercise of judicial

discretion. Similarly, a party who has won a case at the trial in the case brought

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to court by his adversary ought not normally be confronted with a new case on

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appeal simply because his adversary decided to bring forward his case in

dribbles.

In the instant case, the interest of the appellant must be balanced with the interest

of the victims of the robbery as well as the interest of the state, as the keeper of

public good.

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4. Before it can be said that two eye witnesses called by a party have contradicted

one another it must be shown that both of them observed the particular fact in

issue from the same circumstances and, depending on the nature of the fact, at

the same time. From the evidence before the court in this case, it is clear that

P.W.3 and P.VV.4 observed the appellant at different times and in different

circumstances. Faced with this evidence, it cannot be said that the two