Legalpedia Citation: (2023-07) Legalpedia 37108 (CA)

In the Court of Appeal

Holden at Lagos

Fri Jul 14, 2023

Suit Number: CA/LAG/CR/498/2021

CORAM

OBANDE FESTUS OGBUINYA JUSTICE, COURT OF APPEAL

ABUBAKAR SADIQ UMAR JUSTICE, COURT OF APPEAL

ABDULLAHI MAHMUD BAYERO JUSTICE, COURT OF APPEAL

PARTIES

SOLIU ADENIRAN

APPELLANTS

THE STATE OF LAGOS

RESPONDENTS

AREA(S) OF LAW

APPEAL, CRIMINAL LAW AND PROCEDURE, EVIDENCE

SUMMARY OF FACTS

The Appellant was charged on a 2 counts charge for Conspiracy to commit Robbery and Armed Robbery contrary to Sections 297 and 295 (2) (a) of the Criminal Law of Lagos State, 2011. The victims were on transit when they had a flat tire and stopped to fix same at which point four men armed with a local pistol accosted them. They were dispossessed of certain valuable items and reported same to the police where PW1 (one of the victims) claimed he had seen one of the men and could identify him by his tribal marks. The police took him to the location and he identified the appellant as one of the men who attacked them. The trial judge delivered judgment convicting the Appellant for the offences of Conspiracy to commit Robbery and Armed Robbery and thereby sentenced him to death by hanging. The Appellant being dissatisfied with the judgment filed this appeal.

HELD

Appeal allowed

ISSUES

Whether from the totality of the evidence adduced by the respondent at trial, the guilt of the appellant was proved beyond reasonable doubt to justify his conviction by the trial court?

RATIONES DECIDENDI

BURDEN OF PROOF – BURDEN AND STANDARD OF PROOF IN CRIMINAL CASES

The law is well settled, that the prosecution always has the burden to prove the commission of an offence (see section 138 of the Evidence Act, 2011 (as amended). This tallies with time- honoured principle of law that who asserts must prove. In criminal cases, the law places the burden of proof on the prosecution. The standard of such proof is proof beyond reasonable doubt, in order to establish that an accused person had really committed the offence or the wrongful act. See the case of Ani vs. State (2000) 6 SCNJ 98 at 107; (2009) 16 NWLR (Pt. 1168) 443. All the ingredients of the offence charged must be established or proved in order to obtain a conviction. Failure to prove any of the ingredients of the offence charged, the accused is entitled to acquittal by the trial or appellate court. See Agboola vs. State (2013) 11 NWLR (Pt. 1366) 619 at 641. – Per A. S. Umar, JCA

ARMED ROBBERY – INGREDIENTS THE PROSECUTION MUST PROVE IN A CHARGE OF ARMED ROBBERY

In a charge of armed robbery, the prosecution is expected to prove beyond reasonable doubt, the under mentioned elements:

(i) That there was a robbery

(ii) That the robbers or any of them was armed at the time of the robbery; and

(iii) That the accused person or persons was/were the armed robber(s). See Ikaria vs. State (2012) SCNJ 325 at 34; Aigbadion vs. State (2000) 7 NWLR (Pt. 666) 686; Olayinka vs. State (2007) 9 NWLR (Pt. 1040) 561. All the above ingredients must co-exist. In other words, if any one or more of these ingredients has not been proved, then the offence fell short of being proved beyond reasonable doubt and therefore the court must discharge and acquit the accused person of the offence of armed robbery. See Adeoye vs. State (1999) 6 NWLR (Pt. 605) 74. – Per A. S. Umar, JCA

PROOF – THREE METHODS FOR PROVING AN OFFENCE

It is settled law, that there are three methods for proving an offence by the prosecution in order to obtain conviction. These three methods of proof are as follows:-

(a) By the testimony or testimonies of eyewitness or witnesses.

(b) Through voluntary confessional statement of an accused person

(c) Through circumstantial evidence. – Per A. S. Umar, JCA

CONSPIRACY – INGREDIENTS OF THE OFFENCE OF CONSPIRACY

The ingredient of the offence of conspiracy are as follows:

(a)        That there is an agreement between two or more people

(b)        That the agreement is for the purpose of committing an offence.

In the Erim vs. State (1994) 5 NWLR (Pt. 346) 522 (sc) it was held that the offence of conspiracy is completely committed the moment the two or more persons have agreed that they will do, immediately or at some future time, certain unlawful things. see the case of Bouwon vs. The State (Supra). The problem with proving the offence of conspiracy, one may have look at the commission of the offence itself. Since the intention and agreement to commit the offence culminates into the commission of the offence itself, therefore the offence of conspiracy can be inferred from the circumstances. See Omotola vs. State (2009) 2 – 3 MJSC 76. – Per A. S. Umar, JCA

IDENTIFICATION PARADE – INSTANCES WHERE IDENTIFICATION PARADE IS NECESSARY

This court in the case of Abdullahi vs. State narrated instances where identification parade is necessary as thus:

“it has been held times without number that an identification parade is not necessary in all cases. It is however necessary in the following circumstances where: (i) the accused was not arrested at the scene and he denies taking part in the crime or (ii) the victim did not know the accused person before the commission of the crime. See: James Victor vs. State (2016) LPELR (CA) Okiemute vs. State (2016) LPELR – 40639 (CA). An identification parade is very essential and useful wherever there is doubt as to the ability of the victim to recognise the suspect who participated in carrying out the crime. Where however the identity of the accused person as regard the commission of the offence is not in doubt, the police is not bound to conduct any identification parade. See Ojokwo & Ors. vs. State (2002) 4 NWLR (Pt. 756) 80. As a rule therefore an identification parade is not a sine qua non for the identification of suspect in every case where there has been a fleeting encounter with the victim of the crime, if there is evidence leading to the identity of the perpetrator.” – Per A. S. Umar, JCA

IDENTIFICATION PARADE – THE WAY TO CONDUCT IDENTIFICATION PARADE

The usual way to conduct identification parade is to put the accused with other persons for the witness to pick. The police are not entitled to assist the identification of an accused person or suspect. See Wandi Ajibade vs. the State (1987) 1 NWLR (Pt. 48) pg. 205. – Per A. S. Umar, JCA

COURTS – CONDUCT OF COURTS WHERE THERE IS DIUBT IN CRIMINAL MATTERS

It is trite that where there is doubt in a criminal matter, the doubt should be resolved in favour of the accused. See Ahmad vs. State (1999) 7 NWLR (Pt. 612) Page 641 at Page 673.  

A man may be convicted on the evidence of a single witness. However such must to be credible and cogent. See: State vs. Aibaugbe (1988) 3 NWLR (Pt. 84) page. 548.  – Per A. S. Umar, JCA 

PROOF – MEANING OF PROOF BEYOND REASONABLE DOUBT

It is my humble view that a proof beyond reasonable doubt is not a proof beyond every shadow of doubt. It is a proof to moral certainty and such proof as satisfied the judgment and conscience of the judge as a reasonable man, and applying his reason to the evidence before him that the crime charged has been committed by the Defendant, and so satisfied him as to leave no other reasonable conclusion possible. – Per A. S. Umar, JCA 

IDENTIFICATION – CONDUCT OF COURTS WHEN THE CASE AGAINST THE DEFENDANT WHOLLY OR SUBSTNTIALLY DEPENDS ON IDENTIFICATION OF THE DEFENDANT – CONDUCT OF COURTS IN CRIMINAL MATTERS

I would emphasize that whenever the case against a defendant depends wholly or substantially on the correctness of the identification of the defendant, which the defence alleges to be mistaken, the court must closely examine and receive with caution the evidence alleged before convicting the defendant on the correctness of the identification; Adamu vs. The State (supra); Eyisi vs. The State (supra); Ochiba vs. The State (supra); Yau vs. State (1986) LPELR-2134 (SC) at page 20, the Nobel 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”. 

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 vs. The State (2010) LPELR – 3041 (SC). The Supreme Court, per Obaseki, JSC, in Saidu vs. 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 breath 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 Ogundiya vs. 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 vs. 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 vs. 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 it is only an impression of probability your duty is to acquit”. (Emphasis mine). 

A court cannot sentence a person to death on the basis of speculation and sentiment or empathy with victim. – Per A. S. Umar, JCA 

CASES CITED

STATUTES REFERRED TO

1. Criminal Law of Lagos State, 2011
2. Evidence Act, 2011 (as amended)

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