Legalpedia Citation: (2024-02) Legalpedia 07348 (CA)

In the Court of Appeal

Holden At Makurdi

Fri Feb 16, 2024

Suit Number: CA/MK/24C/2021

CORAM

Cordelia Ifeoma Jombo-Ofo Justice, Court of Appeal

Biobele Abraham Georgewill Justice, Court of Appeal

Ibrahim Wakili Jauro Justice, Court of Appeal

PARTIES

BAMAIYI MUSTAPHA

APPELLANTS

ATTORNEY GENERAL, NASARAWA STATE

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONSTITUTIONAL LAW, CRIMINAL LAW AND PROCEDURE, EVIDENCE

 

SUMMARY OF FACTS

The Prosecution before the lower Court against the Appellant claimed that on various days between 2013 and 2016, the Appellant carried out robbery operations while armed with locally made pistol and other dangerous weapons and carted away various sums of money amounting to N2,300,000.00 in the 2013 robbery operation on Igbo Market Women and N70,000.00 in the July 2016 operation from passengers in some Vehicles at a spot along Wamba – Akwanga Road, Nasarawa State. It was also their case that the Appellant voluntarily confessed to the commission of these various acts of armed robbery, which are contrary to Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act, 2004.

On his part, the defense of the Appellant as can be seen from the Record of Appeal inter alia was that he was a victim of random raid by officials of the State Security Services while he was at a Fuel Station trying to refuel his car, where he was arrested along with six persons and detained at the DSS Lafia office. He denied making Exhibit A voluntarily as same was presented to him as a document he needed to sign to enable him secure bail. The content of Exhibit A was not read to him and he does not know what is contained therein.

The Appellant pleaded not guilty to each of the three Count charges. The Respondent called one witness who testified as PW1, and tendered one document, the Extra Judicial Statement of the Appellant, which was admitted in evidence as Exhibit A after a trial within trial, and closed its case. In his defense, the Appellant testified as the sole witness in his defense and closed his case.

The lower Court delivered its judgment, in which it convicted the Appellant for the lesser offence of Robbery of the three Count charges of Armed Robbery contrary to Section 1 (2) a of the Robbery and Firearms Special Provisions Act Cap R11 Laws of the Federation of Nigeria 2004, and sentenced him to 21 years on each of the Charges and for the sentences to run concurrently.

The Appellant was aggrieved by the decision hence the instant appeal.

HELD

Appeal allowed

ISSUES

Considering the specific finding by the trial Court that the Prosecution did not produce any evidence of corroboration to Exhibit A, whether the trial Court was right in relying solely on the selfsame uncorroborated and highly contested Exhibit A to convict the Appellant of the offence of robbery?

RATIONES DECIDENDI

STANDARD OF PROOF – STANDARD OF PROOF IN CRIMINAL PROCEEDINGS – MEANING OF PROOF BEYOND REASONABLE DOUBT

My lords, the sole issue for determination deals with the requirement of the law that an allegation of the commission of a crime must be proved beyond reasonable doubt by the Prosecution in order to secure the conviction of an Accused person. Thus, to succeed the Prosecution must lead credible evidence establishing the essential ingredients of the offence charged. However, in doing so the Prosecution need not call a horde of witnesses since in law the credible and cogent evidence of a sole witness will be sufficient to secure a conviction for an offence no matter the heinous nature of the offences charged in so far as corroboration is not required by law. It follows therefore, once the essential ingredients of the offence charged is sufficiently established by the evidence put forward by the Prosecution, it would be immaterial that a particular witness was not called or that a particular document was not tendered in evidence. See Alhaji Mua-zu Ali V. The State (2015) 5 SCM 26. See also Odili V. The State(1977) 4 SC 1; Oguonzee V. The State (1998) 5 NWLR (Pt. 551) 521; Abeke Onafowokan V. The State (1987) 1 NWLR (Pt. 61) 538. Joy Omoregie Osagie V. People of Lagos (2018) LPELR – 46666 (CA) per Sir Biobele Abraham Georgewill, JCA; Akpabio V. The State (1994) 7 NWLR (Pt. 359) 635; Olayinka V. The State (2007) 4 SCNJ 53 @ p. 73.

Now, the standard of proof in a criminal case is proof beyond reasonable doubt, but proof beyond reasonable doubt does not mean proof beyond all shadow of doubt. Thus, where the evidence adduced is strong as to leave only a remote probability in favor of the accused person, then the case is proved beyond reasonable doubt. But where the evidence led against an Accused person falls short of proving all or any of the essential elements of the offence charged, then such an Accused person is entitled to be discharged and acquitted by the Court. See Bakare V. The State (1987) 3 SC 1. See also Miller V. Minister of Pensions (1947) 2 All ER 373; Lieutenant Idrissa Baba Adamu (NN/2539) V. The Nigerian Navy(2016) LPELR-41484(CA) per Sir Biobele Abraham Georgewill JCA. – Per B. A. Georgewill, JCA

TRIAL COURTS – DUTY OF TRIAL COURTS TO EVALUATE EVIDENCE

My lords, in law a trial Court is the master of the facts but must base his inferences, evaluation or assessment and findings on the available evidence adduced before it and therefore, once its findings are premised on the facts and evidence led by the parties, it must be allowed to stand and cannot be interfered with by an appellate Court, which of course had not seen, heard and watched the witnesses testify in Court but if otherwise, then an appellate Court is under a duty to intervene to re-evaluate the evidence and make proper findings as dictated by the justice of the case. See Mogaji V. Odofin (1978) 4 SC 94. See also UBN Ltd. V. Borini Promo Co. Ltd. (1998) 4 NWLR (Pt. 547) 640; Anyaoke & Ors. V. Aidi & Ors (1986) 3 NWLR (Pt. 751) 1.

I am aware that evaluation of evidence, a very tough turf for the trial Courts, is not merely a review or restatement of the evidence of the witnesses but it is rather a critical appraisal of the evidence in the light of the facts in issue, and determining which evidence is relevant, admissible or inadmissible, and what weight to be attached to such admissible evidence. Put simply, evaluation of evidence is a much more critical and crucial task than mere restatement of or summary of evidence of witnesses. In Onwuka V. Ediala (1989) 1 NWLR (Pt. 96) @ p. 182, it was admonished and clarified inter alia thus:

“Unlike mere review of evidence, its actual evaluation involves a reasonable belief of the evidence of one of the contending parties and disbelief of the other or reasoned preference of one version to the other. There must be an indication on the record as to show how the Court arrived at its conclusion preferring one piece of evidence to the other”

See also Guardian Newspaper Ltd. V. Rev. Ajeh (2011) 10 NWLR (Pt. 1256) 574 @ p. 582; Aregbesola V. Olagunsoye (2011) 9 NWLR (Pt. 1253) 458. – Per B. A. Georgewill, JCA

APPELLATE COURTS – CONDUCT OF APPELLATE COURTS WITH REGARD TO EVALUATION OF EVIDENCE

Now, in criminal trials where not only the liberty of the Accused person is at stake, but his guilt must be proved beyond reasonable doubt, and which onus lies squarely on the Prosecution and never shifts, a Court must consider, and must never fail to do so, every defense raised or available on the evidence to the Accused person. In law, failure to do so would be fatal where any miscarriage of justice results from such wrongful conviction. In such circumstances, an appellate Court would be under a duty as dictated by the ends of justice to intervene to carry out a proper consideration of the defense either raised or available on the evidence and if established to set aside such wrongful conviction and set the wrongfully convicted free! See Olagesin V. State (2013) All FWLR (Pt. 670) 1357 @ p. 1366. See also Maikudi Aliyu V. The State (2013) All FWLR (Pt. 711) 1492 @ p. 1494.

I thought I should proceed with the known position of the law that we sitting here as appellate justices, who have not seen the witnesses testify and observed their demeanor in the witness stand, should respect the views of the lower Court on matters of facts and we are not readily to substitute our own views for that of the lower Court, which saw and heard the witnesses testify and also, but very crucially, observed their demeanor unless and except where it is shown that the conclusion and/or finding reached by the Court below was perverse. SeeSaeed V. Yakowa (2013) All FWLR (Pt. 692) 1650 @ P. 1681. See alsoClement Ofoni V. State (2021) LPELR – 55642 (CA) per Sir Biobele Abraham Georgewill JCA; Obajimi V. Adediji (2008) 3 NWLR (Pt. 1073) 1 @ p. 19; Sogbamu V. Odunaiya (2013) All FWLR (pt. 700) 1249 @ P. 1302. – Per B. A. Georgewill, JCA

ARMED ROBBERY – THE INGREDIENTS OF THE OFFENCE OF ARMED ROBBERY

My lords, on the count alleging armed robbery, for which the lower Court found the Appellant guilty of robbery simpliciter, the law is well settled that in order to prove the offence of armed robbery the following essential ingredients must be established either by direct or confessional or circumstantial evidence, namely,

a: That there was a robbery or series of robbery;

b: That the robbery was an armed robbery, that is the robbers were armed during the robbery;

c: That the accused person was one of those who took part in the armed robbery.

However, where the offence alleged is simply robbery then the second element would not be necessary, that is it need not be proved that the robbery was carried out while the robbers were armed. All and each of these ingredients must be proved by the prosecution to secure conviction of an Accused person for the offence of armed robbery or robbery as the case may be. See Agboola V. State (2013) 11 NWLR (Pt. 1366) 619 @ p. 641. See also Eneche V. People of Lagos (2018) LPELR -45826(CA); Afolalu V. The State (2010) 43 NSCQR 227; Ogudu V. The State (2011) 45 NSCQR (Pt. 1) 278; The State V. Salawu (2011) LPELR – 8252 (SC). – Per B. A. Georgewill, JCA

BURDEN OF PROOF – BURDEN OF PROOF IN CRIMINAL PROCEEDINGS – WAYS OF PROVING THE GUILT OF THE ACCUSED – THE PRIMARY DUTY OF THE EVALUATION OF EVIDENCE

In law it is the Respondent that has the unshifting burden of proving the essential elements of the offence of Armed Robbery as to both the physical elements and the mental elements, as earlier set out, of each and all of the three counts with which the Appellant was charged. It follows therefore, a failure on the part of the Respondent to prove any or all of the essential elements that constitute these offences with which the Appellant was charged would be fatal to the charges, which would then not have been proved as required by law. See Godwin Igabele V. The State (2006) 6 NWLR (Pt. 975) 103. See also Lori V. The State (1980) 11 SC 81; Emeka V. The State (2001) 14 NWLR (Pt. 734) 666; Peter Igho V. The State (1978) 3 SC 87; Archibong V. The State (2006) 14 NWLR (Pt. 1000) 349.

However, in law in proving its case against an Accused person, the Prosecution has open to it three basic types of evidence, each of which is sufficient by itself, with which to prove its case beyond reasonable doubt and to secure the conviction of the Accused person, and they include, A. Direct Eye Witness Account, B. Confessional Statement, and C. Circumstantial Evidence. See Mohammed & Anor V. The State (2007) LPELR – 1894 (SC); See also Deriba V. State (2016) LPELR – 40345(CA), per Sir Biobele Abraham Georgewill JCA; Oko V. The State (2021) LPELR – 56328 (CA) per Sir Biobele Abraham Georgewill JCA; Godwin Igabele V. The State (2006) 6 NWLR (Pt. 975) 103, Lori V. The State (1980) 8 – 11 SC 81; Buba V. The State (2016) LPELR – 40201 (CA); Emeka V. The State (2001) 14 NWLR (Pt. 734) 666; Peter Igho V. The State (1978) 3 SC 87; Archibong V. The State (2006) 14 NWLR (Pt. 1000) 349; Joy Omoregie Osagie V. People of Lagos (2018) LPELR – 46666 (CA) per Sir Biobele Abraham Georgewill JCA.

I am aware and I feel duty-bound by the trite position of the law that evaluation and ascription of probative value to the evidence led is ordinarily the turf of the trial Court, the lower Court and once that Court discharges that duty satisfactorily on the strength of the evidence placed before it, unless it arrives at perverse conclusions or findings not supported by the established evidence before it, an Appellate Court will not interfere once the conclusions reached is correct. See Edman V. The State (2021) LPELR – 55754 (CA) per Sir Biobele Abraham Georegwill JCA. See also Ogunniyi V. The State(2012) LPELR – 8567(CA); Amadi V. FRN (2011) Vol. 9 LRCNCC 177 @ pp. 179 -180; Afolalu V. The State (2012) Vol. 10 LRCNCC 30 @ p. 40; Aiguokhian V. The State (2004) 7 NWLR (Pt. 873) 565; Ubierho V. State (2005) 2 SC (Pt.1) 18 @ pp. 21 – 22; Alhaji Ndayako & Ors V. Alhaji Dantoro & Ors (2004) 13 NWLR (Pt. 889) 187 @ p. 198. – Per B. A. Georgewill, JCA

ILLITERATE PERSON – THE PROCEDURE FOR OBTAINING A STATEMENT FROM AN ILLITERATE PERSON ACCUSED OF COMMITTING A CRIME

In law, the administration of cautionary words in English language to the illiterate Appellant as a suspect does not meet the minimum requirement that a suspect must be cautioned, in the language he understands, before being called upon to make a statement or before his statement is taken.

Thus, where the suspect is an illiterate, the cautionary statement is only reliable where recorded in the language of the Accused, the Hausa Language, and translated into the Court’s language, as otherwise it would render such a statement as having been obtained contrary to law This is a constitutional safeguard of the right of the citizen suspected of having committed an offence and in my view, this infraction alone was enough reason for the lower Court to exercise great caution while considering the weight to attach to Exhibit A, but which it wholly failed to do and to set aside Exhibit A. In Orjiakor V. State (2017) LPELR – 42739 (CA), this Court had stated inter alia thus:

“Be that as it may, it is apt to restate the procedure under our laws when the Police is engaged in obtaining a statement from an illiterate person suspected of a criminal offence. The Judges have been in accord with the view that where the suspect is an illiterate, the cautionary statement is only reliable where recorded in the language of the accused and then translated into the Court’s language. Any irregularity in this regard may mar the case of the prosecution. “

See also Nwede V. State (2018) LPELR – 43787 (CA); Orjiakor V. State (2017) LPELR – 42739 (CA); Johnson Adeyemi V. The State (2012) LPELR – 7956(CA). – Per B. A. Georgewill,JCA

CONFESSIONAL STATEMENT – THE DUTY OF THE TRIAL COURT TO TEST THE TRUTHFULNESS OF A CONFESSIONAL STATEMENT

The lower Court had thus, left unresolved a very crucial issue of whether or not there was anything, even an iota of evidence or facts from the surrounding circumstances as led in evidence before it by the Respondent, outside of Exhibit A, to support the contents of Exhibit A to make it even the least probable that it was true. These are facts which if the lower Court had taken the time and patience to consider would, in my view, have very crucial effect on its findings and conclusions. See Eneche V. People of Lagos (2018) LPELR – 45826(CA).

Honestly, I find myself at a loss trying to comprehend the rationale behind the casual and cavalier manner with which the lower Court had disregarded and ignored this very crucial principle of law, to test the truthfulness or probability of a confessional statement to avoid situations where the alleged confessional statement is foisted on an Accused person and he is without more convicted and punished for offences, sometimes as heinous as armed robbery, which he in truth and in reality did not commit and be sentenced to die by hanging. See Eneche V. People of Lagos (2018) LPELR -45826(CA). – Per B. A. Georgewill, JCA

VITAL WITNESS – WHETHER THE FAILURE TO CALL A VITAL WITNESS CAN BE FATAL TO A CASE

I am aware that in law so long as the evidence adduced by the Prosecution is sufficient to establish the case as required by law, it is immaterial that a particular witness was not called or that only one witness testified for the Prosecution or that a particular document was not tendered in evidence. However, it is the law that vital witness must be called since criminal trials, as well as in civil trials in our Courts, is not a game of hide and seek, but one geared towards the attainment of justice. Thus, the failure to call a vital witness whose evidence would have a crucial effect on the case of the parties is fatal to the case of the prosecution.

Regrettably, in the instant case, not even one of the Igbo Market Women or those in the Vehicles allegedly robbed by the Appellant on three different occasions between 2013 and 2016 was called to testify in support of the charges against the Appellant before the lower Court. Curiously, and even more astonishing, none of them was even interviewed by the PW1 before the Appellant was charged before the lower Court on a supposedly concluded investigation against him by PW1, whose only investigation was to take the statement of the Appellant. What a way to investigate crimes! In Okunade Kolawole V. The State (2015) LPELR- 24400 (SC), Peter – Odili JSC., had poignantly pronounced inter alia thus:

“There is no evidence in the record of appeal that attempt to secure the attendance of those vital witness by the prosecution was frustrated by certain circumstances. This is a criminal trial. The prosecution is bound to call all material witnesses in order that the whole facts may be put before the Court. Although the prosecution need not call a host of witnesses on the same point where there is a vital point in issue and there is a witness whose evidence will settle it one way or the other that witness ought to be called having played prominent role ought to have been called as witnesses.

Failure to call them is fatal to the prosecution’s case.”

See also Idiok v. The State (2008) 13 NWLR (Pt. 1104) 225 @ pp. 250-251; Eneche V. People of Lagos (2018) LPELR -45826(CA); Olayinka v. The State (2007) 4 SCNJ 53 @ p.73; The State v. Ajie (2000) 3 NSCQR 53 @ p.66; Adebayo Rasaki v. The State (2014) 10 NCC 1. See also Onah V. State (1985) 3 NWLR (Pt. 12) 236; Alake V. State (1992) 9 NWLR (Pt. 265) 200; Adio V. State (1980) 12 NSCC 51; Udor V. State (2014) 12 NWLR (Pt. 1422) 548; Afolalu v. The State (2010) 16 NWLR (Pt. 1220) 584. – Per B. A. Georgewill,JCA

EVIDENCE – WHETHER HEARSAY EVIDENCE CAN SERVE TO ASCERTAIN THE TRUTH OF THE CONTENT OF AN EXHIBIT

…the evidence of PW1, which was only of what transpired as he was allegedly told by the Appellant, cannot in law serve as evidence outside of Exhibit A to show the truth of the content of Exhibit A. At best, they were all complete hearsay as to the events that took place at the time of the alleged armed robbery. See Chima Ijioffor V. The State (2001) NWLR (Pt. 718) 371. See also Olayinka Ayeni V. The People of Lagos State (2016) LPELR – 41440 (CA); Eneche V. People of Lagos (2018) LPELR – 45826(CA). – Per B. A. Georgewill, JCA

CONFESSIONAL STATEMENT – THE CONDITIONS TO BE SATISFIED BEFORE A COURT CAN RELY SOLELY ON A CONFESSIONAL STATEMENT TO CONVICT AN ACCUSED PERSON – GUIDELINES FOR CONVICTING AN ACCUSED FOR A LESSER OFFENCE – CONDUCT OF COURTS IN ARRIVING AT CONVICTION IN CRIMINAL PROCEEDINGS

The Apex Court has over the years laid down the conditions to be satisfied before a Court can rely solely on a confessional statement to convict an Accused person. See Afolabi V. State (2013) 10 SCM 40 @ p. 67, where the Supreme Court per Odili JSC, had stated these conditions inter alia thus:

1. Is there anything outside the confession to show that it is true?

1. Is it corroborated?

1. Are the statements made in it of fact so far as we can test them as true?

1. Was the prisoner a man who has the opportunity of committing the offence?

1. Is his confession possible?

1. Is it consistent with the facts which have been ascertained and which have been as in this case proved before us?

See also Ogedengbe V. State (2014) 12 SCM (Pt. 2) 512; Adeleke V. State (2013) 16 NWLR (PT. 1381) 556 @ p. 583, Lasisi V. State (2013) 9 NWLR (Pt 1358) 74.

My lords, most regrettably, the lower Court proffered no basis or reasons for the conviction of the Appellant for the lesser offence of robbery when the offence of armed robbery charged failed woefully rather than simply discharging and acquitting the Appellant. The law does not allow such whimsical conviction for lesser offence without fulfilment of the very stringent conditions as required by law. See Adeyemi V. State (1991) LPELR – 172 (SC), where the Supreme Court per Adolphus Godwin Karibi-Whyte, JSC, (God bless his soul) @ pp. 54 – 55, had stated inter alia thus:

“It is useful to understand that for an accused to be convicted for a lesser offence, the following conditions must be fulfilled. First the elements in the offence charged and those in the lesser offence for which the accused is convicted must be the same. Secondly, the evidence adduced and the facts found must be insufficient for conviction in respect of the offence charged, but at the same time support the lesser offence in respect of which the accused was convicted. See R v. Adokwu 20 NLR. 103, at p.105, where Bairamian J. said, “If he is to be convicted under Section 179 of the Criminal Procedure Ordinance of a lesser offence, this must be on facts embraced in the particulars of the greater offence charged, otherwise he cannot properly be deemed to have notice of the lesser offence.” Thirdly, the lesser offence in respect of which the accused was convicted is usually not charged. This is clearly envisaged by the expression in sub-section (1) italicized waiving the requirement of a formal charge. Finally, the accused must be tried on the more serious offence.”

See also Saliu V. State (2018) LPELR – 44064(SC), where the Supreme Court per Kudirat Motonmori Olatokunbo Kekere-Ekun, JSC @ pp. 31 – 32, had stated inter alia thus:

“The power of a Court to convict an accused person for a lesser offence than the one charged is exercised based on certain guidelines. Where the Court exercises this power, the evidence in support of the lesser offence must consist of a combination of some of the essential elements of the original offence charged. The particulars of the lesser offence must be capable of being subsumed in the original charge such that it is possible to carve out the particulars of the lesser offence from the particulars of the original charge. See: N.A.F. Vs Kamaldeen (2007) 7 NWLR (Pt.1032) 164 @ 190 D – F; Adeyemi v. The State (1991) 6 NWLR (Pt.195) 1; Agugua v. The State (2007) 2 SC 113; Nwachukwu v. The State (1986) 2 NWLR (Pt.250 765. In Nwachukwu’s case (supra), His Lordship Karibi-Whyte, JSC, gave a useful guide on how to determine whether a lesser offence is made out. He suggested that the particulars (or ingredients) of the offence should be set out and the Court (or counsel) should consider whether it is possible to delete some words from the particulars of the offence charged leaving a residue of particulars making up the lesser offence e.g. a person charged with wounding with intent to do grievous harm may be convicted of unlawful wounding where the intent to do grievous harm is not proved. Similarly, a person charged with armed robbery punishable under Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act Cap. R11 LFN 2004 may be convicted of robbery simpliciter where there is no evidence that the accused was armed.”

On the whole therefore, I firmly hold that the Respondent failed woefully to prove, on the paucity of evidence led before the lower Court, as in the Record of Appeal, the offence of armed robbery or robbery simpliciter against the Appellant beyond reasonable doubt as required by law. In law, the conviction of an Accused person must be supported and founded upon credible evidence, which must be cogent and must not create room for speculation or reasonable doubt, and if does then it is liable to be set aside on appeal. See Emeka V. The State (2014) LPELR – 24244 (CA). See also Eneche V. People of Lagos (2018) LPELR – 45826(CA); Afolalu V. The State (16 NWLR (Pt. 1220) 584; Ejeka V. The State (2003) 7 NWLR (Pt. 819) 408); Isibor V. The State (2002) 4 NWLR (Pt. 758) 241.

Truly, in law it is better, and I think it is worth being reiterated here with all the seriousness it deserves, for 99 guilty persons to go scot-free than for one innocent person, such as the Appellant in the instant appeal, to be convicted and punished for an offence he did not commit. So be it! See Abeke Onafowokan v. The State (1987) 7 SCNJ 238. See also Eneche V. People of Lagos (2018) LPELR – 45826(CA); Saidu v. The State (1992) 1 NWLR 49. Ukorah V. The State (1977) 4 SC 167 @ p. 177; Olakaibe V. The State (1990) 1 NWLR (Pt. 129) 632 @ p. 644.

Indeed, this calls to remembrance the evergreen words of his lordship, Obaseki JSC., in Saidu V. The State (1982) 1 NLR 49 @ P. 67, poignantly and poetically capturing as it were the finer principle of law on the need for Courts to refrain from convicting and sentencing innocent persons to prison on evidence not proving their guilt beyond reasonable doubt inter alia thus:

“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 our streets and tread the Nigerian soil and breath the Nigerian air as free as innocent men and women.” – Per B. A. Georgewill, JCA

PROSECUTING ATTORNEYS – CONDUCT OF PROSECUTING ATTORNEYS IN CRIMINAL PROCEEDINGS

I commend to all prosecuting attorneys of these present times the candor of the great Prosecuting Attorneys of yore as displayed in John Mgboko V. The State (1972) LPELR – 1872 (SC), where the Prosecuting Attorney, one L. A. Iyagba Esq., now of blessed memory, found himself unable to support a conviction for murder against the Appellant, while acceding to conviction for the lesser offence of manslaughter. – Per B. A. Georgewill, JCA

APPELLATE COURTS – MEANING OF PERVERSE FINDINGS – DUTY OF APPELLATE COURTS WHEN FACED WITH PERVERSE DECISIONS OF LOWER COURTS

In all the circumstances of this appeal therefore, I hold that the lower Court wholly failed to carry out any proper evaluation of the evidence led before it, misapplied decided cases brought to its attention and arrived at very perverse findings and conclusions in its judgment. In law, such perverse findings and conclusions are liable to be set aside so that proper findings and conclusions, as already made in this judgment, as dictated by the evidence led by the parties and the course of justice are made. See Re: Glaxo Smithkline Consumer Nigeria Plc. (Miss Funmilayo Rotola Ayodele Williams V. Glaxo Smithkline Consumer Nigeria Plc. (2019) LPELR – 47498 (CA), where this Court per Sir Biobele Abraham Georgewill, JCA., had reiterated inter alia thus:

“A decision of a Court is perverse when it ignore the facts or evidence before it which lapse when considered as a whole constitutes a miscarriage of justice. In such a case, an appellate Court is bound to interfere with such decision and set it aside.”

See also Ogunde V. Abdulsalam (2017) LPELR – 41875 (CA) per Georgewill JCA @ pp 35 – 35; Obajimi V. Adediji(2008) 3 NWLR (Pt. 1073) 1 @ p. 19. – Per B. A. Georgewill, JCA

STANDARD OF PROOF – STANDARD OF PROOF IN CRIMINAL MATTERS – INGREDIENTS OF THE OFFENCE OF ARMED ROBBERY

It is no longer a question of peradventure that in criminal matters, the standard of proof is beyond reasonable doubt and the burden of proving the essential ingredients of the offence charged is upon the prosecution throughout the trial and does not shift. See Oforlete vs. The State (2000) 12 NWLR Pt. 681, pg. 415; Olayinka vs. The State (2007) 9 NWLR Pt. 1040, pg. 561; and State vs. Ajie (2000) 7 SCNJ 1 at 14.

Furthermore, in order to ground a conviction in armed robbery charge the prosecution has the heavy task of proving the following ingredients conjunctively and beyond reasonable doubt in order to obtain a conviction:

1. That there was robbery;

1. That the robbery was an armed robbery;

1. That the accused person was one of the armed robbers. –Per C. I. Jombo-Ofo, JCA

CONFESSIONAL STATEMENT – WHERE A FREE AND VOLUNATARY CONFESSIONAL STATEMENT IS SUFFICIENT PROOF OF GUILT

It was succinctly and clearly enunciated by the apex Court in the authority of Alao vs. State (2019) LPELR-47856 that:

“… a free and voluntary confession is sufficient proof of guilt if it is direct, positive and unequivocal with reference to the offence charged. See Osung vs. The State (2012) 18 NWLR Pt. 1332, pg. 276-277 paras. D-E; The State vs. Jimoh Salawu (2011) 18 NWLR Pt. 1279, pgs. 920-921, para. G; and Okoh vs. The State (2014) 2-3 SC 205 Lines 15-23.

Apart from the voluntary and positive confessional statement of the appellant, the guilt of the appellant was equally established by witnesses who squarely fixed him as one of those who committed the robbery.” (Underlining mine for emphasis). – Per C. I. Jombo-Ofo, JCA

ARMED ROBBERY – THE ELEMENTS OF ARMED ROBBERY – CONDUCT OF JUDGES IN ADJUDICATION

In Busari V State (2015) 11 NCC page 43 at 48 the Supreme Court stated that for the elements of armed robbery to be completed there must be robbery, the robbery was carried out with an offensive weapon and the defendant participated therein. See also Afolalu V State (2010) 43 NSCQR 227.

From the records, the investigation was handled from the beginning to the end by the office of the Director State Services, very unusual in a case of armed robbery. In the process even the trial Judge having found himself in a hopeless situation apparently confused and not knowing what to do thereby ended up misapplying the law to the detriment of the innocent individual. As Judges, we must at all times remember that we shall also be judged and therefore we must endeavour to do justice in all situations we find ourselves in. – Per I. W. Jauro, JCA

CRIMINAL JURISPRUDENCE – CONDUCT OF COURTS IN CRIMINAL JURISPRUDENCE

Afterall, it is always better to set free 99 guilty persons than convict a single innocent person for an offence he did not commit. Under our criminal jurisprudence, every accused is presumed innocent until he is proven guilty. – Per I. W. Jauro, JCA

CASES CITED

STATUTES REFERRED TO

Robbery and Firearms Act (Special Provisions) Act Cap 11, Laws of the Federation of Nigeria 2004

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