CORAM

---

Onyekachi Aja Otisi Justice, Court of Appeal

James Gambo Abundaga Justice, Court of Appeal

Onyekachi Aja Otisi Justice, Court of Appeal

James Gambo Abundaga Justice, Court of Appeal

Muslim Sule Hassan Justice, Court of Appeal

Onyekachi Aja Otisi Justice, Court of Appeal

James Gambo Abundaga Justice, Court of Appeal

Muslim Sule Hassan Justice, Court of Appeal

---

PARTIES

---

JIMOH ABDULLAHI

APPELLANTS 

---

THE STATE

RESPONDENTS 

---

AREA(S) OF LAW

---

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

 

---

SUMMARY OF FACTS

PW1 Emmanuel Umoh, a staff of Namax Research Company, was violently robbed of his mobile telephone and wallet on 30/10/2016, around 10 pm by three men who arrived at the scene on a motorbike. His girlfriend, Bola, also had her telephone and handbag forcefully taken from her. Specifically, PW1 testified that the Appellant held him, putting a knife to his neck, while he was asked to hand over his telephone and wallet. The 1st defendant also took his girlfriend’s telephone and handbag. His girlfriend ran off, shouting and raising an alarm. PW1 grabbed the Appellant while the 2nd and 3rd defendants ran away. Other persons responded to the alarm and also held the 1st defendant.

At the conclusion of the trial, the trial Court found the Appellant, as well as the 2nd and 3rd defendants, guilty as charged and sentenced them to death by hanging. Dissatisfied with his conviction and sentence, the Appellant lodged the instant appeal.

 

---

HELD

---

Appeal dismissed

 

---

ISSUES

---

 Whether the prosecution had proved its case beyond reasonable doubt?

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

 

---

RATIONES DECIDENDI

---

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

---

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

 

---

GUILT – WAYS OF ESTABLISHING THE GUILT OF AN ACCUSED

---

The guilt of a defendant can be established by: His direct, positive, and voluntary confessional statement; Circumstantial evidence.

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 onto the accused. – Per O. A. Otisi, JCA

 

---

ARMED ROBBERY – INGREDIENTS OF THE OFFENCE OF ARMED ROBBERY

---

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

 

---

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

---

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 the 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

 

---

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

---

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

 

---

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

---

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 favor of the defendant; Awopejo & Ors v. State (2001) LPELR-656(SC); Galadima v The State (2017) LPELR-43469(SC). – Per O. A. Otisi, JCA

 

---

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

---

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

 

---

LOCUS CRIMINIS – WHETHER THE DEFENCE OF ALIBI AVAILS AN ACCUSED WHO IS FIXED AND ARRESTED AT THE LOCUS CRIMINIS

---

When a defendant, accused of committing a crime, is fixed and arrested at the locus criminis, any defence of alibi must surely collapse, more so when the stolen items are recovered from him. The defence of alibi crumbles the moment the prosecution gives superior evidence fixing the defendant not only to the scene of the crime, but also to his commission of the offence. Ezekwe v. The State (2018) LPELR-44392(SC), Nomayo v. State (2018) LPELR-44729 (SC), Onwuta v. State of Lagos (2022) LPELR-57962(SC), Ayinde v. State (2023) LPELR-60153(SC). – Per O. A. Otisi, JCA

 

---

CONSPIRACY – THE MEANING OF CONSPIRACY – BURDEN AND STANDARD OF PROOF OF CONSPIRACY – HOW CONSPIRACY IS PROVED

---

Generally, conspiracy is an agreement between two or more persons to plan an unlawful act or carry out a legal act through illegal means. It is an agreement by two or more persons acting in concert or in combination to accomplish or commit an unlawful act coupled with intent to achieve the objective of the agreement; State v Salawu (2011) LPELR-8252(SC), Adeleke v State (2013) LPELR-20971(SC), Bouwor v State (2016) LPELR-26054(SC), Kayode v State (2016) LPELR-40028(SC), Oduneye v State (2001) LPELR-2245(SC), Okoh v. The State (2014) LPELR-22589(SC), Adepoju v. The State (2018) LPELR-44355(SC). See also Black’s Law Dictionary, Ninth Edition, page 351.

A charge of conspiracy is a totally separate offence from the completed offence. Thus, the offence of conspiracy may be committed even if the substantive or main offence was not committed or has been abandoned or aborted; Taiye v. State (2018) LPELR-44466(SC). As is the case in all criminal trials, the burden is on the prosecution to prove beyond reasonable doubt that persons accused of conspiracy to commit criminal offence did reach an agreement to commit such offence. The charge can be proved either by leading direct evidence in proof of the common criminal design or it can be proved by inference derived from the commission of the substantive offence. Orisa v State (2018) LPELR-43896(SC).

Recognizing the difficulties that could be encountered in proving conspiracy, Peter-Odili, JSC in Kayode v State (supra) at page 67 of the E-Report commented: “It is because of the uniqueness of conspiracy and the fact that it is near impossible at times to establish it by direct evidence that it is usually proved through inference of the facts and circumstances of each case.” See also Babarinde & Ors v. State (2013) LPELR-21896(SC). – Per O. A. Otisi, JCA

 

---

JUDGMENT – WHERE AN ACCUSED IS CONVICTED/JUDGED FOR AN OFFENCE THAT IS WELL DEFINED AND PRESCRIBED IN WRITTEN EXISTING LAW

---

The offence for which the Appellant was convicted and sentenced is well defined and prescribed in written existing law. The Appellant was in no way misled by any error in stating the law in the Charge. There was no requirement for the trial Court to be formally addressed on this issue by the Appellant. There was no breach of the right to fair hearing or any other rights of the Appellant. No miscarriage of justice has been shown. The ensuing decision of the trial Court was not rendered a nullity. Arguments in this vein would merely be “standing on the pedestal of technicality to knock justice on its face”; David v. CP, Plateau State Command (2018) LPELR-44911(SC). See also Omoju v The Federal Republic of Nigeria (supra), (2008) LPELR-2647(SC), Adonike v. State (2015) LPELR-24281(SC), Yabugbe v. C.O.P. (1992) LPELR-3505(SC), Mohammed v. The State (2022) LPELR-57830(SC). – Per O. A. Otisi, JCA

 

---

ALIBI – WHETHER THE DEFENCE OF ALIBI AVAILS A DEFENDANT FIXED AT THE SCENE OF THE CRIME

---

It is settled law that the defence of alibi will not avail a defendant who is fixed to the scene of crime- Ayodeji V. State (2017) LPELR-42374 (CA) p. 23 Paras C-E, Tonge V. State (2016) LPELR- 41928 (CA) Pp. 18- 19 Paras F-C. State V. Aliyu (2022) LPELR-59477 (SC) Pp. 25-26 Paras C-A. – Per J. G. Abundaga, JCA

 

---

CASES CITED

---

---

STATUTES REFERRED TO

---

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

CLICK HERE TO READ FULL JUDGEMENT