UKWUNNENYI & ANOR. V. THE STATE.

• Pages: 42-63

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NIGERIAN SUPREME COURT CASES

[1989] 3 N.S.C.C.

trial judge did not disregard the evidence of alibi. He considered it fully but in the

end was driven to the conclusion that it was much, much, weaker than the evidence

positively identifying the appellant as the leader of the gang of armed robbers who

robbed the prosecution witnesses, 1,2,3, and 4: See

R. v. Chadwick

(1917) 12 CR.

App.

R.

247;

R. v. Rabbit

(1931/32) 23 CR. App.R.112;

Patrick Njovens v. The State

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5

(1976) 5 S.C. 17.

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•

Now, coming to the complaint in Ground 1 of the Original Grounds of Appeal

I

set out earlier on in this judgment, I do not see why the evidence of the prosecution

witnesses who were believed - why their evidence would have been "incapable of

belief by a fair- minded jury in view of the evidence of P.W. 7" who could not tell

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whether or not the appellant went out of the room that night. I think the opposite is

the case. The evidence of P.W.7 confirmed the evidence of PWs. 1,2,3, and 4. It did

not contradict the evidence of those witnesses. So, Ground 1 of the original grounds

fails. This means that the trial judge's findings of fact having survived, the onslaught

of this ground remains intact and unassailed. With those findings not set aside, it

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will be futile to argue any grounds of fact unless it is a ground of a wrong inference

from those admitted facts. Issue No. 2 formulated in the Appellant's Brief attacking

the so-called "conflicts in the evidence of the prosecution witnesses" becomes a

non-issue. In any event, the two Courts below did not regard those conflicts as

material. As a matter of fact, when witnesses to one incident reproduce the same or

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uniform account of that incident, the danger is that their evidence has been tailored,

tutored and doctored. In actual life, there is bound to be minor variations in the

account of truthful witnesses. But when witnesses

contradict one another on material

particulars,

then, they should not be believed.

"Contradictum"

is the latin version of

"to say exact opposite". The prosecution witnesses did not contradict one another,

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nor was their evidence contradicted by that of P.W. 7.

In the final result and for all the reasons in the lead judgment of my noble and

learned brother, Nnaemeka-Agu, J.S.C. with which I fully agree and which I now

adopt as my own, I, too, will dismiss this appeal, affirm the conviction and sentence

of death passed on the appellant by Obadina, J. and confirm the appeal judgment

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of the Court of Appeal.

Appeal dismissed.

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UKWUNNENYI & ANOR. V. THE STATE

1.

BENSON UKWUNNENYI

2.

ECHENA CH ITO

V

THE STATE

SUPREME COURT OF NIGERIA

OBASEKI,



J.S.C.

NNAMAN I ,



J.S.C.

KARIBI-WHYTE,



J.S.C.

OPUTA,



J.S.C.

NNAEMEKA-AGU, J.S.C.

7th July, 1989

APPELLANTS

RESPONDENT

SUIT NO. SC 185/1988

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45

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Criminal Law and Procedure - Murder - Defence of alibi - Consideration of - Verification

- Onus of proof - Failure of verification - Effect - Rejection of defence of alibi - Disbelief

of alibi - Basis. Provocation - Meaning of - Whether sufficient ground to kill innocent

party - Effect.

UKWUNNENYI & ANOR. V. THE STATE

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43

Evidence - Onus of proof - Defence of alibi - Belief or disbelief of evidence - Basis of -

Children evidence - Corroboration - Medical evidence - Sufficiency as corroboration.

5

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Words and Phrases - Provocation - Meaning of

ISSUES:

1. Whether it is necessary to consider every defence set up by an accused person.

2. Whether the Supreme Court has power to consider issues which were properly

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raised in the lower court.

3. What is the nature of a defence of alibi?

4. On whom lies the burden of leading evidence of alibi?

5. When is the best time to plead a defence of alibi?

6. What is the effect of the failure to investigate an alibi?

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7. When can an alibi be rejected?

8.

Whether a defence of alibi can be disbelieved on the basis of the accused

person's demeanour?

9.

What, in law, amounts to provocation?

10.

Whether provocation offered by one person can be a ground for killing another

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person?

11.0n whom lies the onus of proof in criminal cases?

12.0n what should the belief or disbelief of evidence be based?

13. What is the rational behind the policy of proof beyond reasonable doubt.

FACTS:

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The appellants were tried along with two others, for the murder of one Chukwuma

Okoro. The two others were discharged and acquitted while the 1st and 2nd

appellants were convicted. The first appellant made a statement in which he

confessed to having killed the deceased, but pleaded provocation, in that the

deceased's brother had killed his (the 1st appellant's) brother that morning. The

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learned trial judge rejected the defence and convicted him. The 2nd appellant

pleaded the defence of alibi, contending that he was not even in the village at the

time of the deceased's murder, as the village head had sent him along with others,

to convey the body of his brother to the hospital. The 2nd appellant's defence of

alibi was not investigated, and the learned trial judge, relying on the evidence of the

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two prosecution witnesses (who were the deceased's son and brother) convicted

both the 1st and 2nd appellants.

The appellants thereupon appealed to the Court of Appeal against the conviction,

contending that the defences of provocation and alibi were not considered by the

trial judge. All the contentions were dismissed by the Court of Appeal, and the

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appellants, aggrieved by this, appealed to the Supreme Court, contending

inter alia,

that the defences of alibi for the 2nd Appellant and provocation for the 1st Appellant

were not properly considered, and that the court should not have relied on the

evidence of P.W.4 (son of the deceased) as to the part played by the appellants in

the commission of the offence.

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HELD:

1.

It is well settled that where a defence has been put forward, it must be considered

however improbable or regarded as stupid. In the instant case, the 2nd appellant

put up a defence of alibi. This issue was not considered independently by the

trial court at all.

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2. It is the duty of the Court of Appeal to consider issues properly raised on the

grounds of appeal before it. Where this has not been done, the Supreme Court

can, notwithstanding the fadt that the court below has not made any

pronouncement, consider the grounds of law or fact so raised.

3. It is well settled that the defence of

alibi,

where successful, results in the acquittal

of the accused relying on the defence. It is a claim of absence of both actus: not

only that it is not reus, but also that there was, in fact, no act. It is also a defence