"On the defence of alibi put forward by the 5th Appellant already reproduced, a look at the said statement reveals how vague that defence is. The 5th Appellant failed to state the area of Lagos where he was. He never stated the date in February when he came back. The offence was committed on the 19th of February, 2014, a defence of alibi which simply stated that the 5th Appellant came back "sometime" in February, is no defence at all.
For a defence of alibi to be worthy of investigation, it should be precise and specific in terms of the place the accused was and the person or persons he was with and possibly what he was doing there at the material time. The police should not be involved on a wild goose chase for the whereabouts of an accused at the time the crime was committed. See OCHEMAJE V. STATE (2008) 15 NWLR (Pt. 1109) Pg. 63. On the alibi presented by the 7th Appellant, it is nothing but making a mockery of the defence of alibi. The 7th Appellant neither stated where he was, the time or the person or persons who were with him nor did he supply the name of any body.
On the other hand, PW1 in his evidence at page 333 lines 15-16 of the records stated thus: "... I heard the voice shouted (sic) kill him, kill him, and I hid in my partly destroyed house and noticed the 8th accused person how he hit Nse Okon Umoren in the head and he fell down. When he attempted to rise up, the 7th accused also hit him and all the accused persons hit him." (Underlining mine for emphasis). The said 7th Appellant was therefore clearly identified by PW1. It is trite that once the evidence of an eye witness to any crime fixes an accused/Appellant at the scene of crime and identifies him/her as the perpetrator of the crime, there can be no defence of alibi in the circumstance. See ALIYU V. STATE (2013) 226 LRCN (Pt. 1) 123 at 149.
On the defence of alibi put up by the 9th Appellant, again it is another caricature of the defence of alibi. I say so because the 9th Appellant in Exhibit 13 never mentioned the name of a single person who was with him or who saw him on that fateful day. There can be no defence of alibi without mentioning a single person who was with the accused/Appellant at the time the offence was committed. The question then remains, who then should the police ask if the Appellant was at the place he mentioned at the time the offence was committed. ?The 9th Appellant's failure to mention anyone whose presence at his residence or workshop at the time material to the crime could be ascertained and authenticated has rendered impotent his defence of alibi. Exhibit 13 therefore failed woefully to meet the required test of a proper defence of alibi. The defence of alibi as presented by the 10th Appellant is on Exhibit 14. The PW1 in his evidence at page 332 lines 38-39 stated thus: "... the 10th accused person used the small axe to stab my head...." It should be noted that the Appellants and the victims come from the same community and therefore knew each other very well. PW1's evidence was direct, positive and unequivocal.
It is trite that where the prosecution supplies evidence fixing the accused/Appellant to the scene of crime, the defence of alibi is extinguished. "If the prosecution adduces sufficient and acceptable evidence to fix the accused person to the scene of crime at the material time, his alibi is thereby logically and physically demolished." See OCHEMAJE V. THE STATE (2008) 15 NWLR (Pt. 1109) pg. 63 at 67. ?A defence of alibi by an accused is a combined defence of lack of "actus reus" and "mens rea" i.e that the accused was not at the scene of crime and was therefore, neither in a position to have committed the offence alleged nor participated in its commission nor even had the intention of committing the crime. Therefore, being a matter of fact peculiarly within his personal knowledge, an accused who raises it has the burden of leading evidence of the fact of the alibi, even though the primary or general burden of the proof of guilt remains throughout on the prosecution and does not shift. See GACHI V. STATE (1965) NMLR 333. ODIDIKA V. STATE (1977) 2 SC. 21 and UKWUNNENYI V. STATE (1989) 4 NWLR (Pt. 114) 131 at 144.
The evidence led by the prosecution was that the 5th, 7th, 9th & 10th Appellants on the 19th of February in company of the 1st, 2nd, 3rd, 4th, 6th and 8th Appellants murdered Nse Okon in addition to the other offences charged. The prosecution was therefore specific as to the date of the commission of the crime. The evidence of the victims PW1, PW2 & PW3 were detailed, direct and positive. PW1-PW3 knew the Appellants very well before the date of the incident. Having led evidence fixing the Appellants with the time and date of the crime at the scene, the evidential burden of leading evidence on the Alibi on these points at least sufficient to cast doubt in the mind of the trial Judge was on the Appellants. But in contrast, although the 5th, 7th, 9th & 10th Appellants in their statements tried to put up what they described as alibi, their defence was worthless as each of them failed to meet the basic requirements of the defence of alibi. Where an accused sets up an alibi as a defence, the mere allegation that he was not at the scene of crime is not enough. He must give some explanation of where he was and who could know of his presence at that other place at the material time of the commission of the crime. See YANOR V. STATE (1965) 1 ALL NLR. 193. SALAMI V. STATE (1988) 3 NWLR (Pt. 85) 670 at 677."
Per NWOSU-IHEME, J.C.A. IN ETUK & ORS v. STATE CITATION: (2018) LPELR-44307(CA)
