Dislodgement of Alibi by Superior Evidence

“In the Supreme Court of Nigeria Holden at Abuja On Friday, the 4th day of July, 2025 Before Their Lordships Mohammed Lawal Garba Adamu Jauro Moore Aseimo Abraham Adumein Obande Festus Ogbuinya Abubakar Sadiq Umar Justices, Supreme Court SC/1008/2017 Between SOLOMON IBORO SANDY APPELLANT And THE STATE RESPONDENT (Lead Judgement delivered by Honourable Moore Aseimo Abraham Adumein, JSC) Fact s The Appellant was charged before the High Court of Akwa Ibom State, for the offence of murder contrary to Section 326(1) of the Criminal Code, Laws of Akwa Ibom State, 2000. The Appellant was accused of murdering one Godwin George Udofia on 1st June, 2014. Following the plea of not guilty by the Appellant, the Respondent called 4 witnesses and tendered the Appellant’s statement to the Police, the Post Mortem Examination Form and Medical Report on the deceased, and the Police Investigation Report dated 25/08/2014, as Exhibits A, B-B3, and C respectively. The Appellant testified in his defence and called 3 witnesses. A cash receipt issued in favour of the Appellant on 1st June, 2014 was tendered through the Appellant’s third witness – DW4. At the close of trial and after taking the addresses of Counsel for the opposing parties, the trial court delivered its judgement in which it found the Appellant guilty as charged. Consequently, the trial court sentenced him to death by hanging. Aggrieved, the Appellant lodged an appeal at the Court of Appeal. However, the Court of Appeal upheld the decision of the trial court and dismissed the appeal. Consequently, the Appellant filed a further appeal at the Supreme Court. Issues for Determination The Supreme Court adopted the issues formulated by Counsel for the Appellant, with slight modifications, as follows: 1. Whether or not the Appellant’s right to fair hearing was breached, when he adopted Exhibit A without the same having been interpreted to him. 2. Whether or not the Appellant’s defence of alibi ought to have been sustained, if the evidence of DW3 and DW4 were not discountenanced. 3. Whether or not the case of murder, levelled against the Appellant, was proved beyond reasonable doubt. Arguments On the first issue, Counsel for the Appellant submitted that the Appellant’s right to fair hearing was breached, because he was misled to adopt Exhibit A which was tendered by the Prosecution as the Appellant’s extrajudicial statement, without the same first being interpreted to the Appellant who is an illiterate. Counsel also argued that the Appellant was not given the opportunity to deny making Exhibit A before he adopted it at the trial court, as it was not interpreted to him to enable him to verify if the content actually represented his statement. Conversely, Counsel for the Respondent argued that the Appellant failed to object to the admissibility of Exhibit A at the point of tendering it, therefore, it was assumed that he was comfortable with it, and it was too late in the day to complain about it. Counsel further submitted that Exhibit A did not in fact, form the basis upon which the Appellant was convicted, but rather the eye witness testimony of PW1 which was corroborated by PW2 and PW3. The Respondent’s Counsel concluded that the evidence of PW1, was enough to convict the Appellant outside Exhibit A. On the second issue, the Appellant’s Counsel argued that the Appellant’s defence of alibi was established by the uncontroverted evidence of DW3 and ought to have been sustained, however, the said evidence was discountenanced thereby, occasioning a miscarriage of justice on the Appellant. In response, Counsel for the Respondent argued that the Respondent, through the testimony of PW1 who was an eyewitness, proved beyond reasonable doubt that the Appellant was at the scene of the crime, and this overrode the Appellant’s defence of alibi. On the 3rd issue, Counsel for the Appellant argued that the Respondent failed to prove the charge of murder against the Appellant beyond reasonable doubt, and that the prosecution failed to tender the statement of deceased in evidence because the content may be exculpatory. Counsel also argued that the other prosecution witnesses apart from PW1 gave hearsay evidence, which the trial court ought not to have been relied on. Responding, Counsel for the Respondent submitted that all the ingredients of the offence of murder were successfully established against the Appellant. Counsel submitted further that there was no controversy on the death of the deceased, and the evidence of the prosecution witnesses and Exhibits B – B3 all established that the Appellant killed the deceased. Court’s Judgement and Rationale Deciding the first issue, the Apex Court held that a party to any judicial proceedings should be consistent in his allegation, claim or defence. The Supreme Court further held that an objection to the admissibility of an extra-judicial statement must be raised at the point when it is being tendered, and a party who consented to a document being admitted in evidence, is not permitted to resile from such comment. The Court held that by Section 169 of the Evidence Act, 2011, such party is estopped from resiling from such consent by the doctrine of estoppel by conduct. Reliance was placed on ORJI v FEDERAL REPUBLIC OF NIGERIA (2019) LPELR-46534(SC). The Supreme Court held that from the facts contained in the records, particularly the proceedings of 27th August, 2015 at the trial court, it was evident that when the Prosecution Counsel sought to tender Exhibit A in evidence, the Appellant’s Counsel stated unequivocally that they were not objecting to its admissibility. The Court held that the Appellant who was represented by his Counsel throughout the trial, cannot be said to have been misled or prejudiced by the fact that the content of his extra-judicial statement in Exhibit A was not read out or interpreted to him, in so far as he had not raised any objection to it when it was tendered. The Supreme Court held that the Appellant was afforded all the opportunity to defend himself, including the right to object to the admissibility of any exhibit or evidence tendered or adduced by the prosecution; therefore, his complaint that he was denied fair hearing was baseless. On the second issue, the Supreme Court held that the basis of the defence of alibi is the physical impossibility of a person being at more than one place at a time, hence, the alibi raised by an accused person must account for the accused person’s whereabouts at the time of the commission of the offence, and eliminate the possibility of the accused being present at the scene of the crime at the time when the offence was committed. The Court held further that the defence of alibi will physically and logically crumble once there is superior, positive and credible evidence fixing the accused to the scene of the crime. The Apex Court relied on its earlier decisions in OKERE v IGP (2021) 5 NWLR (PT. 1770) 537 and IBRAHIM v COP (2020) 15 NWLR (PT. 1746) 122. The Supreme Court held that with the evidence on record, although the Appellant claimed that he was at Edyson Hotel when the offence was committed, the Police Investigation Report – Exhibit C showed that he only lodged at the hotel at around 9pm on the fateful day, whereas his whereabouts at 7pm when the offence was committed could not be accounted for. The Court further held that as a matter of fact, the evidence of PW1 who gave credible detailed eyewitness account of how he saw the deceased being brutally attacked by the Appellant with an axe, conclusively neutralised the defence of alibi set up by the Appellant. The Supreme Court found that the issue of whether the Appellant was at the locus criminis was thus, conclusively resolved by the evidence of the prosecution witnesses which proved beyond reasonable doubt that the Appellant was at the scene of the crime, and not somewhere else when the offence was committed. Deciding the third issue, the Apex Court held that for the prosecution to successfully establish the offence of murder, it must be proved beyond reasonable doubt that: (i) the deceased died; (ii) the death of the deceased was caused by the act of the accused person; (iii) the accused person’s act was intentional or with the knowledge that death or grievous bodily harm was the probable consequence of his act. The Court relied on TINA OKORODUDU v THE STATE (2024) 12 NWLR (PT. 1951) 111. The Apex Court held that, in this case, there is no dispute that the deceased died on 1st June, 2014, which established the first ingredient of the offence of murder. The Court held further that the direct eyewitness testimony of PW1 – the deceased’s brother, on how he saw the deceased being brutally attacked with an axe by the Appellant before he fled into the bush, was consistent with Exhibits B1-B3 – the post mortem medical documents which stated that the deceased died as a result of a head injury from an axe. The Court held that the credible evidence of PW1 conclusively established that it was the deceased’s dastardly act that killed the deceased, and PW1’s direct evidence alone was sufficient to ground the conviction of the Appellant. On the 3rd element, the Supreme Court held that any sane man is presumed by law to intend the natural and probable consequence of his action. The Court held that it was clear from the evidence on record that the Appellant’s violent attack on the deceased was motivated by the urge to avenge an earlier clash between the deceased and the Appellant’s brother, and hitting an axe on the head of a human being is such a violent and callous action which clearly shows that the Appellant intended the natural consequences of his conduct. The Court held that the fact that the Appellant hit the head of the deceased with an axe twice, reveals that there was an intention to either kill or cause grievous harm. The Apex Court found that the Respondent established the offence of murder against the Appellant beyond reasonable doubt, and the Court of Appeal rightly affirmed the trial court’s decision convicting the Appellant accordingly. Appeal Dismissed. Representation G. A. Umoh for the Appellant. F. J. Itim (Director of Public Prosecutions, Akwa Ibom State Ministry of Justice) for the Respondent. Reported by Optimum Publishers Limited, Publishers of the Nigerian Monthly Law Reports (NMLR) (An affiliate of Babalakin & Co.)

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