DEDAYO OLADELE v. STATE

“Our adversary criminal justice system is accusatorial. This is in tune with Section 36 (5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), which provides that every person charged with a criminal offence shall be presumed innocent until he is proved guilty. The necessary corollary of this presumption of innocence is that the Prosecution has the onus of proving the commission of the crime charged beyond reasonable doubt as stipulated in Section 135 of the Evidence Act, 2011. Proof beyond reasonable doubt does not mean that the Prosecution must prove the case with mathematical exactitude: Adeoye 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, JSC (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 pith of the inquiry 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 Olaoye vs. The State (2018) LPELR (43601) 1 at 13”.

“The legal position seems to be that for circumstantial evidence to amount to proof of a case beyond reasonable doubt, such circumstantial evidence must prove the proposition which it seeks to establish with the accuracy of mathematics: Fatoyinbo vs. A-G Western Nigeria (1966) NMLR 4 and Aigbadion vs. The State (2000) 7 NWLR (PT 666) 686. In Nweke vs. The State (2001) LPELR (2119) 1 at 11, the apex Court held that: “Circumstantial evidence is very often the best. It is evidence of surrounding circumstances which, by undesigned coincidence, is capable of proving a proposition with the accuracy of mathematics. It is no derogation of evidence to say that it is circumstantial.” See also Adie vs. The State (1980) 1-2 SC 116 and Ukorah vs. The State (1977) 4 SC 167.

“In order for circumstantial evidence to secure a conviction in a criminal trial, it must be cogent, complete and unequivocal. The evidence must be compelling, conclusive and strong and it must lead to the irresistible conclusion that the accused person and no one else must have committed the crime. Indeed, the facts must be incompatible with innocence of the accused person and incapable of explanation upon any reasonable hypothesis other than that of his guilt: Nweke vs. The State (supra) at 18.”

“We will shortly interrogate, if as held by the lower Court, the Prosecution established the guilt of the Appellant through any one of the three ways or methods and if the lower Court arrived at the correct decision when it held that the offences charged had been proved beyond reasonable doubt and consequently convicted the Appellant. It has to be borne in mind that the evidence, which a Court is to act upon and ascribe probative value to, is legally admissible credible evidence. See Onah vs. The State (1985) LPELR (2668) 1 at 14-15 and Bukola vs. The State (2017) LPELR (43747) 1 at 16.

“Now, it is settled law that proofs of evidence are not pieces of legal evidence on which a Court acts. They are mere summaries of statements of witnesses to be called by the Prosecution: FRN vs. Wabara (2013) LPELR (20083) 1 at 20-21, Idagu vs. The State (2018) LPELR (44343) 1 at 38, Pius vs. The State (2012) LPELR (9304) 1 at 30-31 and Erhadavwe vs. The State (2020) LPELR (52418) 1 at 64. So whatever statement made by a potential witness contained in the proof of evidence and who was not called to testify, or in the case of an accused person any statement volunteered and which was not tendered in evidence, is not legal evidence on which a Court can act.

“The law is settled beyond peradventure that the extra-judicial statement made by a potential witness who was not called to testify in Court cannot be accorded any probative or evidential value. Recently in Afolabi vs. The State (2021) LPELR (53501) 1 at 26-27, I was privileged to state the legal position in the following words: “…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. The State (2021) LPELR (52489) 1 at 93 and Kasa vs. The State (1994) LPELR (1671) 1 at 18.” The legal position remains unchanged. See also Kadiri vs. The State Of Lagos (2019) LPELR (47714) 1 at 41-42, Adisa vs. The State (1964) LPELR (25197) 1 at 6-7 and Ugbogbo vs. The State (2016) LPELR (42225) 1 at 18-23

“It is trite law that the evidence of a police witness on what a prospective witness told him in the course of investigation is hearsay and inadmissible. The admissible evidence of a police witness is the evidence of what he saw, observed and actually did in the course of his investigation. See Ugwumba vs. The State (1993) 5 NWLR (PT 296) 660 at 668 or (1993) 6 SCNJ (PT II) 217 at 224-225 and Ekpo vs. The State (2001) 7 NWLR (PT 712) 292 at 304. The regurgitation by the sole prosecution witness of what the victims of the crime told him and what was done by other police officers, who were not called as witnesses, remains hearsay as it is not direct oral testimony: Opolo vs. The State (1977) 11-12 SC (Reprint) 1 at 7 and Ijioffor vs. The State (2001) LPELR (1465) 1 at 17-19. Hearsay evidence is inadmissible and does not command any probative value: Utteh vs. The State (1992) LPELR (6239) 1 at 11, Arogundade vs. The State (2009) LPELR (559) 1 at 23 and FRN vs. Usman (2012) LPELR (7818) 1 at 19-20.

“The law is that the evidence in chief of a witness who is not produced for cross examination cannot be acted upon by the Court: Isiaka vs. The State (2011) ALL FWLR (PT 583) 1966. It is even more so where it is an extra judicial statement made by a person who was not called as a witness. The veracity of the contents of Exhibits Y2 and Y3 has not been proved since the victims of the crime were not called as witnesses. The statements cannot be used as proof of the truth of what they contain: Adisa vs. The State (supra), Kasa vs. The State (supra), Ugbogbo vs. The State (supra) and Agbanimu vs. FRN (2018) LPELR (43924) 1 at 41-43.

“It is settled law that there is no evidence stronger than a person’s own admission or confession. The confessional statement made by an accused person is potent evidence in the hand of a prosecutor for proving a charge. It is the best and safest evidence on which to convict. See Adebayo vs. A-G Ogun State (2008) 7 NWLR (PT 1085) 201 at 221, Usman vs. The State (2011) 3 NWLR (PT 1233) 1 at 11 and Oseni vs. The State (2012) 5 NWLR (PT 1293) 351 at 387. The free and voluntary confessional statement of an accused person alone is enough to sustain a conviction where such voluntary confession of guilt is direct and positive and the Court is satisfied as to its truth. See Yesufu vs. The State (1976) 6 SC 167 at 173, Idowu vs. The State (2000) 7 SC (PT II) 50 at 62-63, Dibie vs. The State (2007) 9 NWLR (PT 1038) 30 at 51 and 636, Kaza vs. The State (2008) 7 NWLR (PT 1085) 125 at 166, 194 and 195, Oseni vs. The State (supra) at 374 and Egboghonome vs. The State (1993) 7 NWLR (PT 306) 385”.

“The Appellant retracted the said statement at the trial; however, 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 (supra) 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”.

“But 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 (2004) 4 SC (PT I) 64 at 81, Ubierho vs. The State (2005) 7 MJSC 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. –

“It is rudimentary law that a Court is only to act upon and ascribe probative value to legally admissible credible evidence. See Onah vs. The State (supra) and Bukola vs. The State (supra). It is therefore beyond confutation that there were no facts established before the lower Court by credible evidence, no matter how slight, on which the veracity of the confessional statement could be determined.

“The circumstantial evidence on record is therefore not based on evidence that can be accorded probative value. In the absence of any credible evidence, I do not find the circumstantial evidence compelling. It is definitely not such that proves the proposition which it seeks to establish with the accuracy of mathematics: Fatoyinbo vs. A-G Western Nigeria (supra) and Aigbadion vs. The State (supra)”.

“From the totality of the foregoing, it is effulgent that the offence of robbery charged was not proved beyond reasonable doubt. The Appellant was entitled to the full benefit of the doubt. See Omopupa vs. The State (2007) LPELR (8571) 1 at 45 and Abdullahi vs. The State (2008) 17 NWLR (PT 1115) 203 at 224.

“The offence of unlawful possession of firearms requires the prosecution to establish the following ingredients: (i) That the accused person was found in possession of firearms (ii) That the firearms were within the meaning of the Act (iii) That the accused person had no license to possess the firearms See The State vs. Oladotun (2011) LPELR (3226) 1 at 19, Okashetu vs. The State (2016) LPELR (40611) 1 at 16-17, Bille vs. The State (2016) LPELR (40832) 1 at 32 and Momodu vs. The State (2008) ALL FWLR (PT 447) 67”.

“On the third ingredient, even though it has been held that being in possession of a firearm without license is a strict liability offence and that it is for the accused person to prove that his possession was lawful by producing his license: Mohammed vs. The State (2019) LPELR (47044) 1 at 21-22 and Bille vs. The State (supra) at 25-26; the Prosecution having failed to establish by credible evidence that the Appellant was in possession of a firearm, concomitantly, the Appellant had no evidential burden to prove that the possession which was not proved is lawful”.

“Now, conspiracy is a separate and distinct offence independent of the actual offence conspired to commit. Generally, therefore since it is separate and distinct, the failure to prove a substantive offence would not make a conviction for conspiracy inappropriate. See Balogun vs. A-G Ogun State (2002) 2 SC (PT II) 89 or (2002) 2 SCNJ 196, Adoba vs. The State (2018) LPELR (44065) 1 at 16-17, Osetola vs. The State (2012) LPELR (9348) 1 at 27-28 and Kayode vs. The State (2016) LPELR (40028) 1 (SC)”.

“It has been held that the proper approach in considering an information containing conspiracy charge and substantive charges is to deal with the charges for the substantive offence first and then proceed to see how far the conspiracy count has been made out in answer to the fate of the charge of conspiracy: Osetola vs. The State (supra) and Jimoh vs. The State (2014) 10 NWLR (PT 1414) 105 at 135-136. This is so because the proof of the offence of conspiracy is generally a matter of inference and where the substantive offence is established, it can then be inferred that there was a conspiracy. See Oduneye vs. The State (2001) 13 WRN 88, Shodiya vs. The State (2013) LPELR (20717) 1 at 19, Erim vs. The State (1994) 5 NWLR (PT 346) 522 at 538 and Bouwor vs. The State (2016) LPELR (26034) 1 at 17.

“I will like to state that it is not in every case that an accused person who has been acquitted in respect of the substantive offence must be acquitted of the offence of conspiracy… It is not in dispute that there was no direct evidence of acts of conspiracy against the appellants. Admittedly, more often than not it does not require direct evidence to establish conspiracy. The appellants were however acquitted of the charge of stealing… The offence of conspiracy cannot therefore be deduced from either of the alleged substantive offences, which were not proved. In the circumstances such as this it requires very strong evidence, if not direct evidence, which will leave no one in doubt that the appellants indeed conspired …” The decision in Abioye vs. The State (supra) was followed and applied by the apex Court per Onu, JSC in Amadi vs. The State (1993) 3 NWLR (PT 314) 644 at 677. Forgive me for being repetitive, but let me restate that there was no independent direct evidence of acts of conspiracy against the Appellant. It was based on the same evidence on which the lower Court convicted for armed robbery that it inferred and convicted for conspiracy to commit armed robbery. In such circumstances, if the conviction for the substantive offence is set aside on appeal, the conviction for the conspiracy charge will equally be set aside: Njovens vs. The State (1973) 5 SC 17, Amachree vs. Nigerian Army (2003) 3 NWLR (PT 807) 256 at 281, Usufu vs. The State (2006) LPELR (11790) 1 at 33-35, Enahoro vs. The State (1969) NSCC 98, Oseni vs. The State (2017) LPELR (42546) 1 at 60-61, Idowu vs. The State (2011) LPELR (3597) 1 at 83-84 and Balogun vs. The State (2018) LPELR (44215) 1 at 4-5. In Temitope vs. The State (2010) LPELR (3752) 1 at 24, Iyizoba, JCA, stated the legal position in pungent terms as follows: “The law is that where the prosecution did not lead evidence on conspiracy but relies on the commission of the substantive offence to infer conspiracy, the conviction for the conspiracy charge will fail if the conviction for the substantive offence is set aside on appeal… It is consequently advisable for the prosecution in cases such as this, to lead evidence of conspiracy separately so that if a conviction and sentence is secured in respect of that count, it could be saved in the event that the substantive charge suffers the same fate as the instant appeal.” See also FRN vs. Usman (2018) LPELR (43894) 1 at 23-24 and Lateef vs. FRN (2010) LPELR (9144) 1 at 22-23.

“The law is firmly settled that it is better for nine guilty persons to escape than for one innocent person to be made to suffer. Put differently, it is better to acquit nine guilty men than to convict one innocent man: Ukorah vs. The State (supra) at 177, Olekaibe vs. The State (1990) 1 NWLR (PT 129) 632 at 644, Shehu vs. The State (2010) LPELR (3041) 1 at 10, Omoruyi vs. The State (2016) LPELR (40133) 1 at 60 and Musa vs. The State Of Lagos (2018) LPELR (46037) 1 at 29.

“I wish to further emphasize that cross-examination is an inviolable right available to parties in litigation which should not be taken away from them. See Ogunsanya Vs. State (2011) 12 NWLR (pt. 1261) 401, Ogolo Vs. Fubara (2003) 1 1 NWLR (pt. 831) 231, and Ayoade Vs. State (2018) LPELR – 44517 (CA). PER F. A. OJO, J.C.A. S. 36 (6) (d) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) provides that an accused person shall be entitled to examine in person or by his legal practitioner the witnesses called by the prosecution before any Court or tribunal and obtain the attendance and carry out the examination of witnesses to testify on his behalf before the Court or tribunal on the same conditions as those of the witnesses called by the prosecution. It follows therefore that the prosecution should not be allowed to rely on evidence, the veracity of which the accused cannot test under cross-examination.