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.)

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.)