CORAM

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James Gambo Abundaga Justice, Court of Appeal

Muslim Sule Hassan Justice, Court of Appeal

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PARTIES

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HALADU AMINU (A.K.A. NAMALAMA)

APPELLANTS 

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THE STATE

RESPONDENTS 

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AREA(S) OF LAW

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

 

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SUMMARY OF FACTS

PW1, Emmanuel Umoh, a staff of Namax Research Company, was violently disposed of his mobile telephone and his wallet on 30/10/2016, around 10pm by three men who arrived the scene on a motorbike. His girlfriend, Bola, was also violently disposed of her telephone and her handbag. Specifically, PW1 testified that the 2nd defendant, one Ali Abdullahi, held him, putting a knife to his neck, while he was asked to hand over his telephone and wallet to the 1st defendant also took his girlfriend’s telephone and her handbag. His girlfriend ran off, shouting and raising an alarm. PW1 grabbed the 1st defendant while the Appellant and 2nd defendant ran away. Other persons responded to the alarm and also held the 1st defendant.

At the conclusion of trial, the trial Court found the Appellant as well as the 1st and 2nd defendants guilty as charged and sentenced them to death by hanging.

Dissatisfied with his conviction and sentence, the Appellant lodged the instant appeal.

 

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HELD

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Appeal allowed

 

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ISSUES

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1. Whether the prosecution had proved its case beyond reasonable doubt?

2. Whether the Appellant was rightly convicted on a law different from that with which the Appellant was charged?

 

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RATIONES DECIDENDI

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BURDEN OF PROOF – BURDEN OF PROOF IN CRIMINAL PROCEEDINGS – MEANING OF ‘PROOF BEYOND REASONABLE DOUBT’

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It is well settled in our criminal jurisprudence that the burden of proving the guilt of a defendant in a criminal trial must be discharged beyond reasonable doubt; Ogundiyan v. State (1991) LPELR-2333(SC), [19911 1 NSCC 448. While the prosecution must prove the guilt of a defendant, there is no corresponding burden laid on the defendant to prove his innocence; Ayinde v. The State (2018) LPELR-44761(SC); Abokokuyanro v. The State (2016) LPELR-40107(SC) The State v. Musa Danjuma (1997) LPELR-3216(SC). By virtue of the unequivocal provisions of Section 36(5) Constitution of the Federal Republic of Nigeria, 1999, as amended, a defendant is presumed to be innocent until his guilt of the offence is established.

A plethora of judicial pronouncements have established that proof beyond reasonable doubt does not mean beyond any shadow of doubt or that of absolute certainty, as would be found in the realm of heavenly trials, per Acholonu, JSC in Shande v State (2005) 12 MJSC 152; (2005) LPELR- 3035(SC). It also does not mean proof to a scientific certainty, per Muhammad, J.S.C. (CJN rtd) in The State v. Azeez (2008) 4 S.C. 188. The explanation for this expression as proffered by Denning J. in the case of Miller v. Minister of Pensions (1947) 2 All E.R. 372 at 373 and cited with approval in Agbo v. State (2006) 1 S.C. (PT. 11) 73, (2006) LPELR-242(SC) at page 48 of the E-Report, was given in this manner:

“Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. 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 against a man 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, but nothing short of that will suffice”

In Shande v State (supra), an explanation for the phrase proof beyond reasonable doubt was expressed by the noble Lord, Pats-Acholonu, JSC thus, page 19 of the E-Report:

“… proof that excludes every reasonable or possible hypothesis except that which is wholly consistent with the guilt of the accused and inconsistent with any other rational conclusions. Therefore it is safe to assume that for evidence to warrant conviction, it must surely exclude beyond reasonable doubt all other conceivable hypothesis than the accused’s guilt. The accused should be acquitted if the set of facts elicited in the evidence is susceptible to either guilt or innocence in which case doubt has been created.”

See also: Udo v. State (2006) 7 S.C. (PT. 11) 83.

‘Proof beyond reasonable doubt’ therefore simply means that there is credible evidence upon which the Court can safely convict, even if it is upon the evidence of a single witness. The law is quite settled that one solitary witness is enough, if his or her evidence proves the essential issue in dispute, and, if he or she is believed; Adelumola v State (1988) LPELR-119(SC), (1988) 1 NSCC 165; Afolalu v State (2010) 6-7 MJSC 187; Ime Idiok v. State (2008) 6 MJSC 36, (2008) 4-5 S. C. (Pt. 1) 84. The evidence of one witness of truth can result in the conviction of a defendant, unless it is an offence for which corroboration is statutorily required. Thus, where all the ingredients of an offence have been clearly established and proved by the prosecution, then the offence is proved beyond reasonable doubt;Osetola v. State (2012) LPELR-9348(SC); Alabi v. State (1993) 7 NWLR (PT. 307) 511 at 523; Ajayi v. State (2013) 2-3 MJSC (PT. 1) 59. – Per O. A. Otisi, JCA

 

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GUILT – WAYS OF ESTABLISHING THE GUILT OF AN ACCUSED

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The guilt of a defendant can be established by:

1. His direct, positive and voluntary confessional statement;

2. Circumstantial evidence.

3. Direct oral evidence given by a victim or by a witness who saw and watched the act.

See: Mustapha Mohammed v. State (2007) 4 S. C. (PT. 1) 1, Igabele v. State (2006) 5 MJSC 96; Okpulor v. State 1990 7 NWLR (Part 164) 581; Udo v State (supra); Afolalu v State (supra); Emeka v. State (2001) 88 LRCN 234; Ime David Idiok v. The State (supra).

Also instructive are the provisions of Section 135 Evidence Act, Laws of the Federation of Nigeria, 2011, which provide that:

(1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.

(2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to the provision of Section 139 of this Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action.

(3) If the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted on the accused. – Per O. A. Otisi, JCA

 

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ARMED ROBBERY – INGREDIENTS OF THE OFFENCE OF ARMED ROBBERY

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In order to secure conviction for the offence of armed robbery, the prosecution must prove, beyond reasonable doubt, the following elements of the offence:

1. That there was a robbery or series of robberies.

2. That the robbery or each robbery was an armed robbery.

3. That the defendant was the robber or one of those who took part in the armed robbery.

See: Dawai v. State (2017) LPELR-43835(SC); John v. The State (2019) LPELR-46936(SC); State v. Sani (2018) LPELR-43598(SC). All these elements must co-exist to ground a conviction; Ugboji v. State (2017) LPELR-43427(SC). It is now to see if these elements were proved by the Respondent as required by law. – Per O. A. Otisi, JCA

 

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ARMED ROBBERY – MEANING OF ARMED ROBBERY – WHEN AN ARMED ROBBERY IS DEEMED TO HAVE BEEN COMMITTED – DESCRIPTION OF AN OFFENSIVE WEAPON – DEFINITION OF A KNIFE

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Armed robbery simply means stealing plus violence, used or threatened. The offence of armed robbery is committed when the offender is armed with any firearms or any offensive weapon or is in company with any person so armed; or at or immediately before or immediately after the time of the robbery the said offender wounds or uses any personal violence to any person; Aruna v. The State (1990) 6 NWLR (Pt. 155) 125: Tanko v. State (2009) (2009) LPELR-3136(SC).

The prosecution is required to prove that a weapon capable of causing grievous harm was involved in the robbery. An offensive weapon has been described as any article made or adapted for use for causing injury to the person being robbed or intended by the person having it for such use by him; State v. Fadezi (2018) LPELR-44731(SC); Sowemimo v. State (2010) LPELR-4972(CA).

The offensive weapon alleged to have been used here was a knife. The Oxford Advanced Learner’s Dictionary of Current English, 9th Edition, defines a knife as:

“a sharp blade with a handle, used for cutting or as a weapon”

The evidence that a knife, an offensive weapon, was used against PW1 in the robbery was not disputed. Although the knife was not tendered in evidence, it must be emphasized that there is no principle of law requiring that the weapon used in armed robbery must be tendered to prove the offence and secure a conviction; Adisa v The State (2018) LPELR-46340(SC); Awosika v The State (2018) LPELR-44351(SC); Sadiku v The State (2011) LPELR-4912(CA); Esene v The State (2013) LPELR-20699(CA).

If there is compelling evidence that the defendant committed the armed robbery, failure to tender the offensive weapon, cannot be basis of acquittal; Olayinka v The State (2007) LPELR-2580(SC); John v. The State (2019) LPELR-46936(SC). The evidence must be such that there is cogent, reliable and authentic oral and/or documentary evidence which the Court believes and admits; Simon v State (2017) LPELR-41988(SC); Adeyemo v State (2010) LPELR-3622(CA). – Per O. A. Otisi, JCA

 

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PROSECUTION – DUTY OF THE PROSECUTION TO PROVE THAT THE DEFENDANT WAS ONE OF THE ROBBERS

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The prosecution must prove that the defendant was the robber or one of those who took part in the armed robbery. This is a fundamental requirement, because while there may have been a robbery in which the robber(s) was armed, if the defendant is not proved to have been one of the armed robbers, he cannot be lawfully convicted. – Per O. A. Otisi, JCA

 

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DISCREPANCY – WHERE A DISCREPANCY IN EVIDENCE IS DEEMED TO BE ESSENTIAL

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It is trite law that for a discrepancy, inconsistency or contradiction to be essential and affect the decision of a trial Court such discrepancy, inconsistency or contradiction must be material and fundamental in the determination of the guilt of the defendant. The discrepancy, inconsistency or contradiction must create doubt in the mind of the Court to such a degree that the Court believes that the doubt must be resolved in favour of the defendant; Awopejo & Ors v. State (2001) LPELR-656(SC); Galadima v The State (2017) LPELR-43469(SC). – Per O. A. Otisi, JCA

 

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AROUND/ABOUT – MEANING OF THE WORD ‘AROUND’ OR ‘ABOUT’ WHEN USED IN RELATION TO TIME

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The use of the word around is not definitive or absolute. It means approximately, which is a word used to show that something is almost, but not completely accurate or correct. See The Oxford Advanced Learner’s Dictionary of Current English, 9th Edition, pages 64 and 69. See also The Black’s Law Dictionary, 9th Edition at page 1198.

The date of the incident was given as on or about 2nd November, 2016. The evidence of PW1 that the incident actually took place on 30/10/2016, two days earlier, was not totally removed from an approximation. Similarly, stating the time of the incident to be around 9pm means at or around the time specified, which is not totally removed from stating it to be around 10pm. Indeed, this Court, per Amaizu, JCA, in Awopejo & Ors v. State (2000) LPELR-6857(CA) at pages 17-18 made it clear that:

‘One may ask what does the phrase “On or about 29th September, 1993” in the charge means? Does it mean that the offence was committed precisely on 29th day of September, 1993? I do not think so. This is because the word “or” when used in a sentence introduces an alternative and it is some times used to express uncertainty about a thing. On the other hand, the word “about” means a little more or less than”, “a little before or after”. See Oxford Advanced Learners Dictionary. It is because of this that when the phrase ‘On or about’ is used in a charge it is not necessary to prove the precise date the alleged offence was committed. See Rex v. Eronini 14 WACA 366.”

Proof of the exact time that an incident occurred is not one of the elements of the offence required to be proved beyond reasonable doubt; Abah v. FRN (2022) LPELR-56738(CA) at 61-62. I therefore see no calamitous discrepancy here. – Per O. A. Otisi, JCA

 

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PROSECUTION – WHETHER THE PROSECUTION IS OBLIGATED TO CALL A HOST OF WITNESSES – THE NEED FOR THE PROSECUTION TO CALL QUALITY WITNESSES

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It must be emphasized that although the established position of the law is that there is no obligation on the prosecution to call a host of witnesses, the quality of evidence from the witness or witnesses called must be such as can sustain the charge; Odili v The State (1977) LPELR-2221(SC); Olayinka v The State (2007) LPELR-2580(SC); Adamu v The State (2019) LPELR-46902(SC). There was no evidence from any Investigating Police Officer on the arrest and identification of the Appellant. There was no investigation report or extra-judicial statement alleged to have been made by the Appellant tendered in evidence. No independent witnesses were called to confirm the identity of the Appellant as one of the perpetrators of the crime. This is the reason why the evidence of the IPO on the identification and arrest of the Appellant was crucial. Failure to call vital witnesses is fatal to the prosecution’s case; Odeh v. FRN (2018) LPELR-47370(CA). – Per O. A. Otisi, JCA

 

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PROSECUTION – DUTY OF THE PROSECUTION TO PROVIDE COMPELLING EVIDENCE LINKING AN ACCUSED TO THE COMMISSION OF A CRIME – CONDUCT OF COURTS WHERE THE PROSECUTION DO NOT LINK THE ACCUSED TO THE COMMISSION OF A CRIME – CONDUCT OF COURTS WHEN DEALING WITH A CASE OF ARMED ROBBERY

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When a defendant is alleged to have committed a crime, there must be clear, positive unequivocal identification of the defendant, all cogent and credible evidence which fixes him at the scene of the crime must be adduced. Where he is not arrested at the scene of the crime, there must be compelling evidence linking him to the commission of the offence; Olayiwola v. State (2021) LPELR-58288(SC); Yau v State (2020) LPELR-50484(CA).

Armed robbery is a capital offence. Before one is sent to the gallows, the nature of the evidence ought to expose the guilt of the defendant beyond reasonable doubt; Akwuobi v. State (2016) LPELR-41389(SC). There must be no other rational conclusion that could be drawn from the evidence other than the guilt of the defendant. In Nwosu v State (1986) LPELR-2134(SC) at page 20, the Noble Law Lord, Aniagolu, JSC eloquently put it this way:

“A judgment sending a man to the gallows, must be seen to be the product of logical thinking, based upon admissible evidence, in which the facts leading to his conviction are clearly found, and the legal deductions therefrom carefully made. It cannot be allowed to stand if founded upon scraggy reasoning or a perfunctory performance. It is so in all cases, and more so in criminal cases, and particularly more so in capital offences.”

Our explicit Constitutional provisions are unambiguous in the protection of the rights of a defendant. The provisions of Section 6(5) of the Constitution of the Federal Republic of Nigeria, 1999, as amended; and, of Section 135 Evidence Act, Laws of the Federation of Nigeria, 2011, have received judicial interpretation, Williams v State (1992) LPELR-3492(SC); Ajayi v. The State (2013) LPELR-19941(SC); Ogu v. Commissioner of Police (2017) LPELR-43832(SC). One undebatable consequence of these provisions is that until the allegation of the commission of a crime by a defendant is absolutely proved beyond reasonable doubt by the prosecution, the defendant must be presumed to be innocent of the crime. In Williams v. The State (supra), the Apex Court, per Kutigi, JSC (as he then was) stated clearly, page 9 of the E-Report:

“There is no doubt whatsoever that under our system of criminal justice, an accused person is presumed innocent until he is proved guilty. There is therefore no question of an accused proving his innocence before a law Court. For the duration of a trial an accused person may not utter a word, he is not bound to say anything. The duty is on the prosecution to prove the charge against an accused person beyond reasonable doubt.”

In this light, the Court cannot unravel by speculation, evidence which is foggy or vague in any particular in order to declare the guilt or otherwise of a defendant. That would be akin to working from an answer to the question. Indeed, any fogginess or inconsistency in evidence adduced against a defendant ought to be resolved in his favour.

There ought to be cogent and compelling evidence to establish the Appellant’s link to the crime, showing him as one of the perpetrators. – Per O. A. Otisi, JCA

 

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PROOF – BURDEN AND STANDARD OF PROOF IN CRIMINAL PROCEEDINGS – THE UNDERLYING CONSIDERATION IN A CRIMINAL PROCEEDING

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The duty of the prosecution is to prove the guilt of the defendant, for the offence for which he is charged, beyond reasonable doubt, which means that there is credible evidence upon which the Court can safely convict, even if it is upon the evidence of a single witness; Afolalu v State (2010) 6-7 MJSC 187. But when there are doubts created in the mind of the Court as to the culpability of the defendant, having regard to the evidence adduced before the trial Court, such doubts can only be resolved in favour of the Appellant; Ibeh v. State [1997]11 NWLR (Pt. 484) 632; Okonji v State (1987) LPELR-2479(SC); Federal Republic of Nigeria v. Mohammed Abubakar (2019) LPELR-46533(SC); Afolahan v. State (2017) LPELR- 43825(SC); Oforlete v. State (2000) LPELR-2270(SC).

The underlying established consideration has always been that it is better for ten guilty men to escape justice than for an innocent man to be condemned unjustly; Shehu v. The State (2010) LPELR-3041(SC). The Supreme Court, per Obaseki, JSC, in Saidu v The State (1982) LPELR- 2977(SC) at page 28-29, graphically declared:

“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 our streets and thread the Nigerian soil and breathe the Nigerian air as free and innocent men and women.”

It follows therefore that where reasonable doubt in the guilt of the defendant exists, the defendant must be discharged. On this issue, the Apex Court, per Obaseki, JSC in Ogundiyan v. State [1991] 1 NSCC 448, (1991) LPELR-2333(SC) at pages 13-14, said:

‘The standard of proof in all criminal trials is proof beyond reasonable doubt. See Hycienth Egbe v. The King 13 WACA 105 at 106. In that celebrated case, Verity, CJ., (Nigeria) delivering the judgment of the Court on the standard of proof said.

‘As illustration of the required standard of proof and degree of certainty in criminal trials, we wish to refer to a portion of the charge to the jury of Martin, B., in Rex v. White 4 F & F 383 at 384 where the learned Baron said: – In order to enable you to return a verdict against the persons, you must be satisfied beyond any reasonable doubt, of his guilt and this as a conviction created in your minds. not merely as a matter of probability and if it is only an impression of probability your duty is to acquit.’ (Emphasis mine). – Per O. A. Otisi, JCA

 

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MATERIAL DOUBT – WHERE THERE IS MATERIAL DOUBT IN THE EVIDENCE AGAINST THE ACCUSED

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The Appellant is entitled to benefit from the material doubt created as to his identity as one of the armed robbers. I therefore consider it unsafe to convict the Appellant for the offences as charged; Alabi v. State (1993) LPELR-397(SC); Ukpabi v The State (supra); Ikpo v The State (2016) LPELR-40114(SC). Issue 1 is resolved in favour of the Appellant. – Per O. A. Otisi, JCA

 

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EVIDENCE – WHERE THE PROSECUTION FAILS TO CROSS-EXAMINE A WITNESS ON A PIECE OF EVIDENCE

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It is settled that failure to cross-examine a witness on a vital piece of evidence means acceptance of the evidence or fact established by that evidence. See Ebenezer V. State (2016) LPELR-41637 (CA), Joel Ighalo V. The State (2016) LPELR-40840 (SC) at P. 9 Paras A-C. – Per J. G. Abundaga, JCA

 

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CASES CITED

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STATUTES REFERRED TO

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1. Constitution of the Federal Republic of Nigeria 1999 (as amended)

2. Evidence Act, 2011

3. Robbery and Firearm Provision Act, Cap 11, Laws of the Federation, 2005.

4. Kaduna State Penal Code

5. Penal Code Laws of Kaduna State 2017

6. Robbery and Firearms (Special Provisions) Act Cap 389 LFN 1990

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