BABATUNDE AFOLABI v. THE STATE

“Under our adversarial criminal justice system, the Prosecution has the onus of proving the commission of the offence charged. By Section 135 of the Evidence Act, 2011 the standard of proof in a criminal case is proof beyond reasonable doubt. Proof beyond reasonable doubt does not mean that the prosecution must prove the case with mathematical exactitude: Adeboye vs. The State (2011) LPELR (9091) 1. It does not mean proof beyond all shadow of doubt; so, where the evidence adduced is strong as to leave only a remote probability in favour of the accused person, then the case is proved beyond reasonable doubt. In the words of Oputa, J.S.C. (of most blessed memory) in Bakare vs. The State (1987) 3 S.C. 1 or (1987) LPELR (714) 1 at 12 – 13: “Proof beyond reasonable doubt stems out of the compelling presumption of innocence inherent in our adversary system of criminal justice. To displace this presumption, the evidence of the prosecution must prove beyond reasonable doubt, not beyond the shadow of any doubt that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure including the administration of criminal justice. Proof beyond reasonable doubt means just what it says. It does not admit of plausible and fanciful possibilities but it does admit of a high degree of cogency, consistent with an equally high degree of probability. As Denning, J. (as he then was) observed in Miller v. Minister of Pensions (1947) 2 ALL E.R. 373: – ‘The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong as to leave only a remote possibility in his favour which can be dismissed with the sentence – “of course it is possible but not in the least probable” the case is proved beyond reasonable doubt.’” Proof beyond reasonable doubt means proof of an offence with the certainty required in a criminal trial. That certainty is that the offence was committed, which is established by proving the essential ingredients of the offence, and that it is the person charged therewith that committed the offence. More often than not in criminal trials, the crux of the disceptation is not whether the offence was committed, but whether it was the accused person that committed the offence: Ndidi vs. The State (2007) 13 NWLR (PT 1052) 633 at 651. –

“There are three ways or methods by which the Prosecution may prove the guilt of an accused person. These are: 1. By reliance on a confessional statement of an accused person voluntarily made; 2. By circumstantial evidence; and 3. By the evidence of eyewitnesses. See Emeka vs. The State (2001) 32 WRN 37 at 49, Okudo vs. The State (2011) 3 NWLR (PT 1234) 209 at 236 and Eze vs. FRN (2017) 15 NWLR (PT 1589) 433 at 490. –

“There is no appeal against this finding of the lower Court that the prosecution failed in two of the three ways or methods of proving the commission of a crime. The said finding not having been appealed against remains subsisting and binding: Esangbedo vs. The State (1989) 4 NWLR (PT 113) 57, Durugo vs. The State (1992) 9 SCNJ 46 at 54 and Idiok vs. The State (2008) LPELR (1423) 1 at 10-11”. –

“I iterate that the lower Court convicted entirely on the basis of the confessional statements which the Appellant retracted and resiled from at the trial. It is settled law that a Court has a duty to act on only admissible evidence. See Onah vs. The State (1985) LPELR (2668) 1 at 14-15, and Bukola vs. The State (2017) LPELR (43747) 1 at 46. –

“Exhibits M and N are English language translations of the statements said to have been volunteered by the Appellant at the State Criminal Investigation Department. The original language in which the statements were volunteered is Yoruba language. The Yoruba language version of the statements were not tendered in evidence. It is trite law that where a statement is volunteered in a language other than English language and then translated into English language, the two statements must be tendered in evidence in order for the onus of proof beyond reasonable doubt to be discharged. Where, as in the instance case, only the English language translation of the statements made at the State Criminal Investigation Department was tendered, the same has no probative value. Accordingly, the said Exhibits M and N are inadmissible and they are hereby expunged from the evidence. See Adamu vs. The State (2019) LPELR (46902) 1 at 38-48, Olanipekun vs. The State (2016) 13 NWLR (PT 1528) 100 at 117 and Oderinde vs. The State (2018) LPELR (43661) 1 at 16-17. –

“The Appellant retracted the said confessional statement; howbeit, the denial by an accused person that he did not make a statement or the retraction or resiling from the confessional statement does not ipso facto render the statement inadmissible in evidence. See Alarape vs. The State (2001) 14 WRN 1 at 20, Kareem vs. FRN (2001) 49 WRN 97 at 111, Ehot vs. The State (1993) 5 SCNJ 65, Egboghonome vs. The State (1993) 7 NWLR (PT 306) 385 at 431 and Obisi vs. Chief Of Naval Staff (2002) 19 WRN 26 at 38-39. The accused person can still be convicted on the basis of such retracted confessional statement: Hassan vs. The State (2001) 7 SC (PT II) 85 at 93. –

“However, a Court cannot act on such retracted confessional statement without first applying the test for determining the veracity or otherwise of the confessional statement. The law enjoins the Court to seek any other evidence however slight, or circumstances which make it probable that the confession is true. The tests laid down in the case of R. vs. Sykes (1913) 1 Cr. App. R 233 has been applied in numerous cases including Ifeanyi vs. FRN (2018) 12 NWLR (PT 1632) 164 at 191-192, Nwaebonyi vs. The State (1994) 5 NWLR (PT 343) 138, Akinmoju vs. The State (2000) 4 SC (PT I) 64 at 81, Ubierho vs. The State (2005) 7 MJ.S.C. 168 at 188-189 and Alarape vs. The State (supra) to mention a few. The tests which have been laid down to ascertain the weight to be attached to a confessional statement is one that places a duty on the Court to examine the statement in the light of other credible evidence before the Court by inquiring into whether: 1. There is anything outside the confession to show that it is true. 2. It is corroborated. 3. The facts stated in the confession are true as far as can be tested. 4. The accused person had the opportunity of committing the offence. 5. The accused person’s confession is possible. 6. The confession is consistent with the other facts ascertained and proved. –

“The Prosecution did not appeal against the finding that the failure to call the victims to testify was fatal to its case; so, it remains binding: Idiok vs. The State (supra), Durugo vs. The State (supra) and Esangbedo vs. The State (supra). This being so, how then could the purportedly recovered items, which the victims did not testify to identify as items that were stolen from them, afford evidence to show that the Appellant’s confession is true? I am unable to fathom how! Even though the extra-judicial statements of the complainants and the person who allegedly bought the stolen jewelries from the Appellant were admitted in evidence, it is abecedarian law that the extra-judicial statement of a prosecution witness who did not testify is of no evidential value: Ike vs. State Of Lagos (2019) LPELR (47712) 1 at 42-46, Paul vs. COP (2021) LPELR (52489) 1 at 93 and Kasa vs. The State (1994) LPELR (1671) 1 at 18”.-

“At the outset, I stated that proof beyond reasonable doubt is accomplished by proving the essential elements of the offence charged. The conjunctive ingredients which the prosecution has to establish beyond reasonable doubt in order to secure a conviction for armed robbery are as follows: 1. That there was a robbery. 2. That the robbery was an armed robbery. 3. That the accused person was one of the armed robbers. See Bozin vs. The State (1985) 2 NWLR (PT 8) 465, Ikpo vs. The State (2016) LPELR (40114) 1 at 17-18 and Adewunmi vs. The State (2016) LPELR (40106) 1 at 10. –

“As I begin to wind up this judgment, I must observe that there is this penchant for police investigation in criminal cases to consist of no more than obtaining confessional statements from the suspects. Without a doubt, the easiest way to establish the offence charged against an accused person and solve the crime is to get a confession. This is especially so because a confession, if voluntary is a relevant fact against the person confessing. See Ikemson vs. The State (1989) 3 NWLR (PT 110) 455 at 476 and Ihuebeka vs. The State (2000) 13 WRN 150 at 176. However, I daresay that this penchant for the easy way out should not obviate the need for proper investigation to be conducted in criminal cases. As stated by Kazeem, J.S.C. in Onah vs. The State (1985) LPELR (2668) 1 at 18: “The need to investigate criminal cases properly particularly those attracting capital punishment cannot be over-emphasized.” ?The investigation carried out by the Police in this matter was nothing to write home about. The Police could not even assist the Prosecution secure the attendance of the complainants to testify. The Police seemed content to procure a confessional statement as the beginning and end of their investigation. The foibles in the case arising from the poor investigation have been such that their trusted “confessional statement” is not the silver bullet they intended it to be, as there is nothing else outside the confession on which the veracity of the confession can be ascertained. I lend my voice to the exhortation of my learned brother, Omoleye, J.C.A. who stated as follows in Adamu vs. The State (2013) LPELR (20770) 1 at 36-37: “Before I end this judgment, I must not fail to chide the Police the umpteenth time, for the very shoddy manner in which they discharge their constitutional duty of crime investigation in this matter. Indeed, I venture to even state that, they did not investigate this matter at all. This being a capital offence, one would have expected the Police to be very diligent especially, in the gathering of evidence they planned to use in establishing the offence with which the Appellant was charged. I am always amazed at the trend and style of the Police in this country, it is only in this nation that, most people accused of committing crimes end up ‘confessing’ to the commission of crimes vide the so-called ‘confessional statements’. This is very ridiculous and laughable. Therefore, I am using this occasion again to appeal to the Police to please step up and keep pace with the high standards of crime investigation which obtains in all civilized countries of the world and always ensure that they perform their constitutional duty creditably well. They owe Nigeria and Nigerians this duty of care.” –

“It has been held that a judgment which imposes the capital punishment must be arrived at based on analytical reasoning that attracts confidence. The apex Court stated as follows in Ndidi vs. The State (2007) ALL FWLR (PT 381) 1617 at 1650-1651: “In criminal trials, particularly in capital offences, the trial Court must arrive at its decision through a process of reasoning which is analytical and commands confidence. A judgment which sends a man to the gallows and await the hangman to execute him at any single minute, must be punctuated by logical thinking and based on cogent and admissible evidence in which the facts leading to his conviction are clearly found and legal inference carefully drawn. It can hardly be allowed to stand if founded on scraggy reasoning or a perfunctory performance.” See also Ebri vs. The State (2004) 11 NWLR (PT 885) 589 at 605. Additionally, it would appear as though the lower Court did not adequately advert to the consideration which ought to affect the mind of a trial Court when it comes to weigh the effect of evidence in a charge attracting capital punishment. In Nwosu vs. The State (1986) LPELR (2134) 1 at 21, Aniagolu, J.S.C. referred to the case of Egbe vs. The King (1950) 13 WACA 105 where a passage in the 10th Ed. of Best on Evidence was referred to and stated: “The serious consequences of an erroneous condemnation, both to the accused and society, the immeasurably greater evils which flow from it than from an erroneous acquittal, have induced the laws of every wise and civilised nation to lay down the principle, though often lost sight of in practice, that the persuasion of guilt ought to amount to a moral certainty; or, as an eminent Judge expressed it, such a moral certainty as convinces the minds of the tribunal; as reasonable men, beyond all reasonable doubt.” The persuasion of guilt from the evidence adduced in this matter did not amount to a moral certainty as the evidence relied on by the lower Court was not cogent and compelling. The law is now firmly settled by a plethora of authorities that it is better for nine guilty persons to escape than for one innocent person to suffer. More pungently, it is better to acquit nine guilty men than to convict an innocent man: Ukorah vs. The State (1977) 4 SC 167 at 177, Olakaibe vs. The State (1990) 1 NWLR (PT 129) 632 at 644 and Shehu vs. The State (2010) LPELR (3041) 1 at 10. In Saidu vs. The State (1982) 4 SC 41 at 69-70, Obaseki, J.S.C. stated: “It does not give the Court any joy to see offenders escape the penalty they richly deserve but until they are proved guilty under the appropriate law in our law Courts, they are entitled to walk about in the streets and tread the Nigerian soil and breathe the Nigeria air as free and innocent men and women.” That shall be the Appellant’s lot. From the evidence on record, the Prosecution did not prove the offences charged beyond reasonable doubt and the Appellant deserves the full benefit of that doubt (see Omopupa vs. The State (2007) LPELR (8571) 1 at 45).”-