Legalpedia Citation: (2023-08) Legalpedia 50792 (CA)

In the Court of Appeal

Holden at Yola

Fri Aug 25, 2023

Suit Number: CA/YL/100C/2022

CORAM

MOORE ASEIMO ABRAHAM ADUMEIN JUSTICE OF THE COURT OF APPEAL

HABEEB ADEWALE OLUMUYIWA ABIRU JUSTICE OF THE COURT OF APPEAL

PETER OYINKENIMIEMI AFFEN JUSTICE OF THE COURT OF APPEAL

PARTIES

DENNIS YOHANNA BABA LAAM

 

APPELLANTS

THE STATE

 

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONSTITUTIONAL LAW, CRIMINAL LAW AND PROCEDURE, EVIDENCE, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The Appellant (as 1st Defendant) and his co-defendants (three others) were alleged to have been part of a group that incited a public disturbance at Malele, Pantisawa village in Yorro Local Government Area of Taraba State on or about 23/5/18, which led to the death of six persons. They were consequently arraigned before the lower Court for criminal conspiracy, culpable homicide punishable with death and inciting public disturbance contrary to Ss. 97(1), 221(a) and 114 of the Penal Code Law of Taraba State.

In a reserved judgment delivered on 10/3/21, the trial Court discharged and acquitted the 2nd Defendant [Ishaya Dimas Dillas] but convicted the Appellant and two others, and sentenced each of them to seven years imprisonment for criminal conspiracy, one year imprisonment for inciting public disturbance, and life imprisonment for culpable homicide not punishable with death [in lieu of culpable homicide punishable with death] pursuant to Ss. 97(1), 114 and 222(4) respectively of the Penal Code Law of Taraba State, 2018. This appeal is an expression of the Appellant’s discontent with the judgment.

 

HELD

Appeal dismissed

ISSUES

• In light of the evidence on record, whether the Respondent (qua prosecution) discharged the non-shifting burden of establishing the Appellant’s guilt beyond reasonable doubt, and the lower Court was right to have convicted and sentenced the Appellant for the offences of criminal conspiracy, inciting public disturbance and culpable homicide not punishable with death?

RATIONES DECIDENDI

BURDEN OF PROOF – BURDEN OF PROOF IN CRIMINAL PROCEEDINGS

Our criminal justice system is accusatorial or adversarial in nature and substance, and every person charged with a criminal offence is presumed innocent until he is proved guilty. See S. 36(5) CFRN. A necessary corollary of the presumption of innocence is that in a criminal trial, the burden is always on the prosecution to establish the guilt of the accused person beyond reasonable doubt, and it is not relieved of this burden even where the accused person admitted to the commission of the offence in his statement to the police: AKINWUNMI v THE STATE [2022] 9 NWLR (PT 1836) 553 at 562 (per Nweze, JSC). Quite unlike civil proceedings, this burden is static and never shifts to the accused. It is if, and only if, the prosecution succeeds in proving the commission of a crime beyond reasonable doubt that the burden of establishing that reasonable doubt exists shifts to the accused. See S. 135(3) of the Evidence Act, 2011. – Per P. O. Affen, JCA

 

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

The onus of proving all the essential ingredients of the offences charged beyond reasonable doubt rests squarely on the prosecution: STATE v SADU [2001] 33 WRN 21 at 40. Where the prosecution fails to do so, the charges are not made out and the Court is bound to record a verdict discharging and acquitting the accused: MAJEKODUNMI v THE NIGERIAN ARMY [2002] 31 WRN 138 at 147. Also, if on the totality of the evidence adduced the Court were left in a state of doubt or uncertainty, the prosecution would have failed to discharge the onus of proof cast upon it by law and the accused would be entitled to an acquittal: UKPE v STATE [2001] 18 WRN 84 at 105.

 

However, proof beyond reasonable doubt does not mean proof beyond every shadow of doubt or proof to the hilt, but such proof as would reasonably and/or irresistibly lead to the inference that the accused committed the offence: MILLER v MINISTER OF PENSIONS (1947) 2 ALL E.R. 372 at 373, AKINYEMI v STATE [1996] 6 NWLR (PT 607) 449, ONI v STATE [2003] 31 WRN 104 at 122, AKALEZI v THE STATE [1993] 2 NWLR (PT 273) 1 and EBEINWE v STATE [2011] 1 MJSC 27. What must always be borne in mind is that absolute certainty is impossible in any human adventure, including the administration of justice. Thus, once the prosecution proves that an offence has been committed and that no person other than the accused committed the offence, the prosecution is said to have established its case beyond reasonable doubt: BABARINDE v STATE [2014] 3 NWLR (PT 1395) 568 and ADELEKE v STATE [2013] 16 NWLR (PT 1381) 556. – Per P. O. Affen, JCA

EVIDENTIAL PROOF – THREE MODES OF EVIDENTIAL PROOF IN CRIMINAL TRIAL

The three modes of evidential proof in a criminal trial are: (a) direct evidence of witnesses; (b) circumstantial evidence; and (c) the confessional statement voluntarily made by a criminal defendant. See OKUDO v THE STATE [2011] 3 NWLR (PT. 1234) 209 at 236, ADIO v THE STATE (1986) 5 S.C. 194 at 219 – 220, EMEKA v THE STATE [2001] 14 NWLR (PT 734) 666 at 683, LORI v THE STATE (1980) 8 – 11 SC 81, MAIGARI v THE STATE (2010) FWLR (PT 546) 505, ABIRIFON v THE STATE [2013] 13 NWLR (PT 1372) 587 at 596 and ADEYEMO SEGUN v THE STATE (2021) LPELR-56607(SC). – Per P. O. Affen, JCA

CULPABLE HOMICIDE – ELEMENTS TO ESTABLISH THE OFFENSE OF CULPABLE HOMICIDE

In order to secure conviction in a charge of culpable homicide punishable with death, the prosecution must prove beyond reasonable doubt that: (i) the victim had died; (ii) the death of the victim was caused by the accused; and (iii) the act or omission of the accused which caused the death of the deceased was intentional with knowledge that death or serious bodily harm was its probable consequence. See THE STATE v BABANGIDA JOHN (2013) LPELR-20590(SC), BAKARE v STATE [1987] 1 NWLR (PT. 52) 579, WADATA ISAH v STATE (2017) LPELR-43472(SC), ADEKUNLE v THE STATE (2006) 3 JNSC (PT. 10) 366 at 381, SANI v STATE [2017] LPELR-45375(SC) and ALPHA PAUL v THE STATE (2019) LPELR-47386(SC). – Per P. O. Affen, JCA

 

INCITING PUBLIC DISTURBANCE – ELEMENTS TO ESTABLISH THE OFFENSE OF INCITING PUBLIC DISTURBANCE

In regard to the offence of inciting public disturbance, it must be shown that the accused person did an act intending to cause or which was likely to cause a breach of the peace or disturb public peace [see S. S. Richardson, Notes on the Penal Code, Cap. 89, Laws of Northern Nigeria 1963, 4th ed., 1987 (p. 91)], whilst the gravamen of conspiracy lies in the forming of the scheme or agreement between the parties to do an unlawful act or to do a lawful act by unlawful means, and not in the doing of the act or effectuating the purpose for which the conspiracy is conceived. The offence of conspiracy consists in the meeting of minds for a criminal purpose by proceeding from a secret intention to the overt act of mutual consultation and agreement, and is seldom proved by direct evidence but by circumstantial evidence and inference drawn from certain proved acts. See OBIAKOR v STATE (2002) 6 SC (PT II) 33 at 40, EGUNJOBI v FRN [2001] 53 WRN 20 at 54 and STATE v OSOBA [2004] 21 WRN 113.

Where an indictment entails both conspiracy and a substantive offence, the proper approach is to grapple first with the substantive offence and then proceed to ascertain how far the count of conspiracy has been made out since conspiracy is generally a matter of inference and can be inferred where the substantive offence is established: ERIM v STATE [1994] 5 NWLR (PT. 346) 522 at 538 and ODUNEYE v STATE [2001] 13 WRN 88.  – Per P. O. Affen, JCA

 

EVIDENCE – MEANING OF PERCEPTION OF EVIDENCE AND EVALUATION OF EVIDENCE

Now, perception of evidence and evaluation of evidence are the forte of a trial judge: that a peculiar adjudicator upon whom the heaviest burden of adjudication lies. Perception entails receiving all relevant evidence into the Court’s record, whilst evaluation has to do with weighing the evidence received in the context of surrounding circumstances: OLUFOSOYE & ORS v OLORUNFEMI (1989) LPELR-2615(SC) 1 at 9 (per Oputa JSC). Essentially, a finding of fact by a trial Court entails both perception and evaluation of evidence: WACHUKWU v OWUNWANNE [2011] 14 NWLR (PT 1266) 1 and GUARDIAN NEWSPAPERS LTD v AJEH [2011] 10 NWLR (PT 1256) 574. Indeed, the major preoccupation of a trial Court is to evaluate evidence adduced by the parties, ascribe probative value thereto and ultimately reach a decision; and an appeal against the judgment of a trial Court in a criminal matter will be dismissed once the judgment positively answers the following queries: (i) Did the prosecution prove the essential elements of the offence; (ii) Was the case proved beyond reasonable doubt; and (iii) Was the evaluation of the evidence of the prosecution and defence witnesses properly done. See OSUAGWU v STATE [2013] 5 NWLR (PT 1347) 360. The relevant enquiry therefore is as to whether the above queries were answered positively in the judgment appealed against. – Per P. O. Affen, JCA

 

PROOF – BURDEN AND STANDARD OF PROOF IN CRIMINAL TRIALS

But more often than not, the enquiry in criminal trials is not whether or not an offence was committed, but as to the identity of the person(s) alleged to be the actual perpetrator(s) of the offence charged [see NDIDI v THE STATE [2007] 13 NWLR (PT 1052) 633 at 651]; and because criminal responsibility is always personal, it is imperative for a Court of law to be satisfied that the person charged with an offence before it is the actual offender. In this regard, it is not sufficient for the prosecution to merely prove that the offence was committed. Most importantly, the evidence must prove that the accused person(s) committed the offence: OMOBORIOWO OLUGOROYE v THE STATE (2021) LPELR-54701(CA). The burden is on the prosecution to establish beyond reasonable doubt that the accused person was at the scene of the crime: ADEDEJI v THE STATE (1971) 1 ALL NLR 75 and PETER v THE STATE [1997] 3 NWLR (PT. 496) 625 at 642.  – Per P. O. Affen, JCA

 

ALIBI – WHEN AN APPELLANT CONTENDS THAT HE WAS CONVICTED BASED ON WRONG EVIDENCE AND HIS DEFENCE OF ALIBI WAS NOT INVESTIGATED

In light of the Appellant’s contention that the lower Court convicted him on the basis of evidence that is either hearsay or otherwise unreliable without investigating his plea of alibi, it is needful to examine closely the evidence put forward by the Respondent in proof of its case. – Per P. O. Affen, JCA

WITNESS – WEIGHT OF AN EYE WITNESS ACCOUNT IN CRIMINAL TRIALS

As stated hereinbefore, PW2 gave uncontradicted testimonial evidence fixing the Appellant at the crime scene, which constitutes credible evidence which the lower Court was entitled to rely and act upon. See BOSHALI v ALLIED COMMERCIAL EXPORTERS (1961) 2 SCNLR 322 and HARUNA TIMOTHY v THE PEOPLE OF LAGOS STATE (2015) LPELR-24812(CA). It is hardly necessary to state that the on-the-spot account of what an eyewitness saw at the scene of an alleged offence is sufficient to sustain a conviction. See SHURUMO v STATE [2010] 19 NWLR (PT 1226) 73, AKINMOJU v STATE [2000] 6 NWLR (PT 662) 608 and AGU v STATE [2017] 10 NWLR (PT 1573) 171. Indeed, it is almost impossible to dislodge eyewitness evidence: UDO v THE STATE (2018) LPELR – 43707 (SC) 1 at 22 (per Rhodes-Vivour, JSC). – Per P. O. Affen, JCA

PLEA OF ALIBI – EFFECT OF FAILURE TO INVESTIGATE A PLEA OF ALIBI – CONDUCT OF COURTS AND POLICE TO A PLEA OF ALIBI

There is no gainsaying that the law enjoins the police to investigate a plea of alibi raised timeously by an accused person at the earliest opportunity. Failure to investigate an alibi may cast doubt on the reliability of the case of the prosecution and could prove fatal to conviction: ADAMU v STATE (2019) LPELR-46902(SC). However, there is no rule of the thumb that failure to investigate an alibi would necessarily result in failure of prosecution in all cases: ODU & ANOR v THE STATE (2001) 5 SC (PT I) 153, (2001) LPELR-2231(SC) 1 at 7. Where there is positive evidence that cancels out the alibi, such as an uncontradicted eyewitness account fixing the accused person to the scene of the crime (as in the instant case), the necessity to investigate the plea of alibi is obviated. The prosecution does not have to investigate every alibi raised by the accused person, however improbable, albeit where the story of the accused if believed is capable of providing a defence, there is a duty on the prosecution to investigate the story:HAUSA v THE STATE [1994] 6 NWLR (PT. 350) 281 at 302. What will be investigated is what is not certain, but what is certain needs no further investigation: ASEKERE v THE STATE (2022) LPELR-56863(SC) 1 at 12 (per Abba’Aji, JSC). The defence of alibi is effectively debunked where the prosecution leads credible evidence which falsified the alibi and fixes the accused person at the scene of crime when the offence was committed and he could not have been anywhere else: EGWUMI v STATE [2013] 13 NWLR (PT. 1372) 525 at 531 and AIGUOREGHIAN & ANOR v STATE (2004) LPELR-270(SC) 1 at 20 – 21(per Onu, JSC).

His Lordship, Coker JSC opined in PATRICK NJOVENS & ORS v STATE (1973) 5 SC 17 at 65 that: “There is nothing extraordinary or esoteric in a plea of alibi. Such a plea postulates that the accused person could not have been at the scene of crime and only inferentially that he was not there. Even if it is the duty of the prosecution to check on a statement of alibi by an accused person and disprove the alibi or attempt to do so, there is a flexible and verifiable way of doing this. If the prosecution adduces sufficient evidence to fix the person at the scene of the crime at the material time, surely his alibi is thereby logically and physically demolished”. See also UDO v THE STATE (2023) LPELR- 59741(SC) 1 at 17 (per Kekere-Ekun, JSC), THE STATE v INYAADU (2021) LPELR-56616(SC), HEMYO NTAM v STATE (1968) NMLR 86 at 88, ADEKUNLE v THE STATE [1989] 5 NWLR (PT 123) 505, OLATINWO v THE STATE (2013) 4 SCM 178 at 192 ADEWUNMI v THE STATE [2016] 10 NWLR (PT. 1521) 614, GABRIEL OGOGOVIE v THE STATE (2016) LPELR-40501(SC), as well as HAUSA v THE STATE supra at 309 where the Supreme Court (per Uwais, JSC as he then was) held thusly:

“It appears to me that none of these issues called for wholesale re-evaluation of the evidence adduced at the trial of the appellant. Although the defence of alibi was not investigated by the police it is clear from the testimonies of P.W.2 and P.W.3 that the appellant was seen and identified as the assailant of the deceased… As both P.W.2 and P.W.3 were believed by the learned trial Judge, the defence of alibi set up by the appellant becomes untenable, even though the police failed to investigate it. The absence of the investigation is not in the circumstances of this case fatal to the case of the prosecution.” – Per P. O. Affen, JCA

ALIBI – DUTY OF THE ACCUSED TO BRING EVIDENCE FOR HIS DEFENCE OF ALIBI

The case of YANOR & ANOR v THE STATE (1965) All NLR (Reprint) 199, (1965) LPELR-25255(SC) 1 at 11 – 12 donates the proposition that the accused has the onus of bringing the evidence upon which he relies for his defence of alibi. The Appellant’s failure or neglect to call his aunt or Magaji Ibrahim whom he allegedly visited on 23/5/18 “during the time of the incident” was fatal to the defence of alibi raised by him, which by law he is required to establish on the balance of probabilities. A defence of alibi, except where it is alleged that a person was alone by himself and never interacted with any known or identifiable person, cannot be said to be proved on the mere ipse dixit of the person setting up the defence: MICHAEL ORI v STATE (2020) LPELR-49334(CA) 1 at 43 (per Lokulo-Shodipe, JCA).  – Per P. O. Affen, JCA

COURTS – DUTY OF TRIAL COURTS AND CONDUCT OF APPELLATE COURTS TOWARDS EVIDENCE EVALUATED BY TRIAL COURTS

The role of an appellate Court is not that of a finicky faultfinder raking up non-existent defects in decisions of lower Courts with a view to upturning them. The trial Court is a peculiar adjudicator upon whose shoulder the heaviest burden of adjudication lies. Evaluation of evidence and ascription of probative value are the forte of a trial Court, and an appellate Court will not lightly interfere unless for compelling reasons. Interference with evaluation of evidence carried out by a trial Court is justified only where an appellant demonstrates that the findings made are perverse in that the trial Court (i) made improper use of the opportunity of seeing and hearing the witnesses; or (ii) failed or neglected to appraise evidence before it and ascribe probative value thereto; or (iii) drew wrong inferences from established facts, which occasioned a miscarriage of justice. There is no warrant for an appellate Court to interfere with the findings of the trial Court where the appellant fails so to do. See ADAMU v FEDERAL REPUBLIC OF NIGERIA [2021] 12 NWLR (PT. 1790) 377, UDE v STATE (2016) 14 (PT 1531) 122 and BUSARI v STATE [2015] 5 NWLR (PT 1452) 343 at 373. – Per P. O. Affen, JCA

BURDEN OF PROOF – WHEN BURDEN OF PROOF SHIFTS IN CRIMINAL TRIALS

Where the prosecution proves commission of a crime beyond reasonable doubt (as in the instant case) the burden of establishing that reasonable doubt exists is shifted to the accused. See S. 135(3) of the Evidence Act, 2011.  – Per P. O. Affen, JCA

TRIAL COURTS – DUTY OF TRIAL COURTS IN RESPECT OF EVIDENCE

It is settled law that in every trial, being civil or criminal, a trial Court has two duties in respect of the evidence led by parties in a trial. The first is to receive into its records all the relevant evidence, and this is called perception. The second is to thereafter weigh the evidence in the context of the surrounding circumstances, and this is evaluation. A finding of fact by a trial Court involves both perception and evaluation – Nacenn Nigeria Ltd Vs Bewac Automotive Producers Ltd (2011) 11 NWLR (Pt 1257) 193, Wachukwu Vs Owunwanne (2011) 14 NWLR (Pt 1266) 1, Ogundalu Vs Macjob (2015) LPELR 24458(SC), Eze Vs State (2018) 11 NWLR (Pt 1630) 353.

It is the primary responsibility of a trial Court to evaluate the evidence presented by parties before it, ascribe probative value to the evidence and then come up with a decision. – Per H. A. O. Abiru, JCA

COURTS – CONDUCT OF APPELLATE COURTS IN RELATION TO EVALUATION OF EVIDENCE OF LOWER COURTS – WHEN APPELLATE COURTS INERFERE WITH EVALUATION OF EVIDENCE BY LOWER COURTS

The law is that where the records of proceedings show that a trial Court assessed the evidence produced before it and accorded probative value to them and placed them side by side on an imaginary weighing scale before coming to a conclusion and making a finding of fact on side of the evidence that tilts the scale, such a finding must be accorded due weight so long as it is not unreasonable and not perverse. In other words, an appellate Court will not interfere with the evaluation of evidence carried out by a trial Court and will not substitute its own views for that of the trial Court unless the conclusion reached from the facts is perverse – Olude Vs State (2018) LPELR 44070(SC), Enukora Vs Federal Republic of Nigeria (2018) 6 NWLR (Pt 1615) 355, Idagu Vs State (2018) LPELR 44343(SC), Fulani M. Vs State (2018) LPELR 45195(SC), Edwin Vs State (2019) 7 NWLR (Pt 1672) 551, Ayinde Vs State (2019) 12 NWLR (Pt 1687) 410, State Vs Gbahabo (2019) 14 NWLR (Pt 1693) 522, Tope Vs State (2019) 15 NWLR (Pt 1695) 289.​

Thus, an appellate Court will only interfere with the evaluation of evidence carried out by a lower Court and embark on a re-evaluation of the evidence led by the parties where an appellant visibly demonstrates the perversity of the findings made by the lower Court by showing that the lower Court (i) made improper use of the opportunity it had of seeing and hearing the witnesses; or (ii) did not appraise the evidence and ascribe probative value to it; or (iii) drew wrong conclusions from proved or accepted facts leading to a miscarriage of justice. Where an appellant fails to do so, an appellate Court has no business re-evaluating the evidence and interfering with the findings of the lower Court – Kale Vs Coker (1982) 12 SC 252 at 371, Oke Vs Mimiko (No 2) (2014) 1 NWLR (Pt 1388) 332 at 397-398, Busari Vs State (2015) 5 NWLR (Pt 1452) 343 at 373, Kayili Vs Yilbuk (2015) 7 NWLR (Pt 1457) 26, Ude Vs State (2016) 14 NWLR (Pt 1531) 122, Amadi Vs Attorney General of Imo State (2017) 11 NWLR (Pt 1575) 92. – Per H. A. O. Abiru, JCA

JUDGMENT – THE KIND OF ERRORS THAT CAN LEAD TO REVERSAL OF JUDGMENT

It is settled law that it is not every error committed by a lower Court that will lead to a reversal of the judgment. To justify a reversal, the error complained of must be of such a nature as to cause a real miscarriage of justice – Sani Vs The State (2018) 8 NWLR (Pt 1622) 412, Ogbuji Vs Amadi (2022) LPELR 56591(SC), Usman Vs State (2022) LPELR 57824(SC).  – Per H. A. O. Abiru, JCA

COURTS – CONDUCT OF COURTS TO JUDGMENTS APPEALED AGAINST

By Section 168(1) of the Evidence Act, a judgment appealed against enjoys presumption of regularity which is rebuttable. Once the appellant fails to satisfactorily establish the error in the judgment appealed against, the respondent is entitled to a judgment affirming the judgment – Amadi Vs Attorney General of Imo State (2017) 11 NWLR (Pt 1575) 92. In Oyedele Vs State (2019) 6 NWLR (Pt 1667) 74, the Supreme Court made the point thus:

‘There is a presumption that, on facts, the decision of a trial Court is right and that for the appellant to succeed, he must displace the findings of fact against him. Once an appellate Court finds nothing perverse or capable of occasioning miscarriage of justice to the appellant in the judgment of the trial Court on facts, it has nothing else to do than to affirm the judgment.’ – Per H. A. O. Abiru, JCA

CASES CITED

STATUTES REFERRED TO

• Constitution of the Federal Republic of Nigeria 1999 (as amended)

• Penal Code Law of Taraba State, 2018

• Evidence Act 2011

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