ABUGHOR ABGYULUWA AND OTHERS v THE COMMISSIONER OF POLICE (Warri Charge No. W/36.CA/61) [1961] NGHC 44 (24 November 1961)

**ABUG****H****O****R** **ABGY****U****LUW****A** **AN****D** **O****T****HER****S** **(A****P****PEL****L****ANTS****)** **_v_.** **TH****E** **COMMISSIONE****R** **O****F** **POLIC****E** **(RESPONDENT****)** **(1961)** **All** **N.L.R.** **879** **Div****i****si****o****n****:** High Court (West) **D****at****e** **o****f** **Judgment:** 24th November, 1961 **C****as****e** **Num****b****er:** Warri Charge No. W/36.CA/61 **Before:** Quashie-Idun, C. J. Appeal from magistrate's court against Conviction and Sentence. The appellants were convicted in the magistrate's court of wilfully and unlawfully destroying 300 rubber plants belonging to one Mayor Atuma. They had, in their evidence, denied having committed the offence; one of them stated that he did not know where Atuma's farm was and that he had never been there. The Magistrate rejected their defence, which he described as an _alibi,_ giving as his reason the fact that the appellants did not call witnesses to substantiate it. The appellants appealed stating, _inter_ _alia_ , that "The learned trial Magistrate misdirected himself in law when he held as follows: 'the defence of absolute denial does not impress me. It will be noted that each accused denied being present at the scene of the incident at the material time, but none called witnesses to substantiate the _alibi_. I must therefore reject the defence that the accused were not present at the scene and that they did not destroy first prosecution witness's rubber trees'." On Appeal: **_HELD_**** _:_** (1) A defence, however stupid, should be considered by the court. (2) The fact that an accused person does not call a witness to substantiate a defence of _alibi_ is no justification in law for the court not considering his defence. _Ap_ _p_ _e_ _a_ _l_ _s_ _al_ _l_ _o_ _w_ _ed_ _:_ _C_ _o_ _n_ _v_ _ic_ _t_ _i_ _o_ _n_ _s_ _qu_ _a_ _s_ _h_ _e_ _d_ _._ APPEAL from magistrate's court. _Ogbob_ _i_ _n_ _e_ for the Appellants. _Og_ _w_ _u_ _a_ _z_ _o_ _r_ for the Respondent. _C_ _a_ _s_ _e_ _s_ _re_ _f_ _e_ _r_ _r_ _e_ _d_ _t_ _o_ _:__-_ _R_ _._ _v_ _._ _Ba_ _r_ _i_ _m_ _a_ _h_ _,_ 11 W.A.C.A. 49. _K_ _in_ _g_ _v_ _._ _Emili_ _o_ _Rufino_ _,_ 7 Crim. App. R. 47; (1911) 76 J.P. 49. Quashie-Idun, C.J.:-The appellants were convicted by the magistrate, Sapele (Obileye), on a charge alleging that they on the 29th October, 1960, at Otefe Village Wilfully and unlawfully destroyed 300 rubber plants the property of one Mayor Atuma. Against their convictions they have appealed on a number of grounds. Some of the grounds were abandoned. The only ground worth considering is the following:- The learned trial Magistrate misdirected himself in law when he held as follows: "the defence of absolute denial does not impress me. It will be noted that each accused denied being present at the scene of the incident at the material time, but none called witnesses to substantiate the _alibi_. I must therefore reject the defence that the accused were not present at the scene and that they did not destroy first prosecution witness's rubber trees." The evidence against the appellants before the trial court was that the appellants had destroyed a quantity of rubber plants in the plantation of the complainant. Each of the appellants denied having committed the offence. The first appellant stated in his evidence that he did not know where the complainant's farm was situated and that he had never been there. The second and third appellants also denied having damaged complainant's rubber trees. The learned trial Magistrate rejected the evidence of each of the appellants because they did not call any witnesses to substantiate the defence which he described as _alibi_. The reason given by the learned trial Magistrate in rejecting the defence put up by the appellants clearly shows that he did not consider the defence. It has been held in _R._ _v_ _._ _B_ _arimah,_ 11 W.A.C.A. at 49 that a defence however stupid, should be considered by the court. The fact that none of the appellants called a witness to substantiate his defence which the court regarded as _alibi_ is no justification in law for not considering the defence. In the case of the _King_ _v._ _E_ _milio_ _Rufino,_ 7 Criminal Appeal Reports at 47, the trial Judge expressed himself forcibly that the defence of _alibi_ put up had no shadow of an _alibi_ from any possible point of view. It was held by the court of Criminal Appeal that it was a misdirection for the Judge to have ruled it out. Apart from the first appellant who said he did not even know the complainant's farm, all the appellants denied having damaged the rubber plants. None of the appellants said where he was at the material time when they were alleged to have committed the offence. Neither did they say that they were with other persons. It was therefore wrong on the part of the learned trial Magistrate to have held that each of the appellants had failed to substantiate the defence put up by him. For the reasons stated, I think that this appeal should be allowed. The convictions are accordingly set aside and the appellants are acquitted and discharged. Fines paid to be refunded. _Ap_ _p_ _e_ _a_ _l_ _s_ _al_ _l_ _o_ _w_ _ed_ _:_ _C_ _o_ _n_ _v_ _ic_ _t_ _i_ _o_ _n_ _s_ _qu_ _a_ _s_ _h_ _e_ _d_ _._