Areas Of Law
Appeal, Criminal Law And Procedure, Law Of Evidence, Practice And Procedure 

 

The Appellant and two others were charged at the High Court of Cross River State, convicted and sentenced to death for the offence of armed robbery contrary to Section 1(2) (a)(b) of the Robbery and Firearms(special provision) Act, Cap RII Laws of Federation of Nigeria 2004.

The Appellant aggrieved by the conviction and sentence by the trial court, he appealed to the Court of Appeal, Calabar Division, which dismissed his appeal. Further dissatisfied with the decision of the lower court, the Appellant have lodged the instant appeal.

Appeal Dismissed

Was the court below right to affirm the Judgment of the trial court on the ground that the prosecution proved its case beyond reasonable doubt.

“The time honoured principle of law is that an accused person is presumed innocent until he is proved guilty. It is not for the accused to prove, his innocence before the law court. The burden of proving the guilt of an accused person squarely rests on the prosecution and such burden does not shift. See Section 138 (1) of the Evidence Act 2011 as amended”. PER A.SANUSI,J.S.C

“Also, the prosecution, in order to obtain conviction must prove its case beyond reasonable doubt. Where there exists any doubt in the prosecution’s case, such doubt must be resolved in favour of the accused person. See Igabele v State (2006) 6 NWLR (pt 975) 100; Agbo v State (2006)6 NWLR (pt 977) 545; Miller v Ministry of Pension (1947) 2 AER 372.” PER A.SANUSI,J.S.C

“However, I must state here, that even though the burden of proof of the guilt of an accused person lies on the prosecution, where the prosecution had adduced adequate evidence which shows that the accused person had actually committed the offence charged, the burden of proving that he is innocent shifts to the accused in view of the provisions of Section 138 (3) of the Evidence Act 2011 as amended. See Nasiru vs State (1999)2 NWLR (pt 589) 87 at 89“. PER A.SANUSI,J.S.C

“For the prosecution to establish an offence against an accused person, it must present or adduce credible evidence in any of the following modes, namely:

(a)        Through testimony or testimonies of eye witness or witnesses, and/or

(b)        Through confessional statement, voluntarily made by the accusedperson; and/or

(c)        Through circumstantial evidence which clearly point to the sole fact that the accused person and no other person committed the offence charged. – PER A.SANUSI,J.S.C

“For the prosecution to obtain conviction on the offence of armed robbery, it has a duty to establish the following elements beyond reasonable doubt, to wit

(i)        that the accused person in the process had committed theft

(ii)       that the accused person and / or person (s) he was in company of had caused hurt wrongful restraint or caused some fear or appreciation of death or hurt or injury on their victim or victims.

(iii) that the acts complained of were done in the process of committing the theft or in older to commit the theft and’/or carry away the property obtained by the theft

(ivj that the accused person did the acts complained of voluntarily, and

(v) that the accused person or any one in his company was /were armed with dangerous weapons at the time of committing the offence in question during the robbery. See Abdullahi v The State (2008)5 SCNJ 210/211“. PER A.SANUSI,J.S.C

“In a nut-shell the offence of armed robbery simply means stealing plus or accompanied with violence or threat of injury or death. See Aruna v The State (1990)6 NWLR (pt 155) 125; Tanko v The State (2009) 2 SCNJ 19; Ani v The State (2009) 6 SCNJ 105; Bozun v State (1985) 2 NWLR (pt 8) 465; Okori V A.G Bendal State (1989)1 NWLR (pt 100) 442; Nwachukwu v State (1985)1 NWLR (pt 11) 218″. PER A.SANUSI,J.S.C

“The position of the law is that when an accused person retracts a confessional statement on the ground that it was not voluntarily made by him, the trial court has a duty to try the issue of the voluntariness or otherwise of such statement through the conduct of a trial within trial. See Gbadamasi v State (1992) 9 NWLR (pt 266); R vs  Onabayo (1936) 3 WACA 42; R v Igive (1960) SCNLR 158; Olayinka v The State (2007)4 SCNJ 66-67. Failure of a trial court to conduct trial within trial where issue of voluntariness of a confessional statement is raised, renders such statement inadmissible See Obideozo vs State (1987) 4 NWLR (pt 67) 48; See also Emeka vs The State (2001) 6 SCNJ 267, (2001) 14 NWLR (pt 734) 666 where Ogwuegbu JSC stated as below

“The law is that where an accused person contends that a confessional statement sought to be tendered in evidence was not made by him voluntarily, it is the duty of the Judge to test the confession by conducting a trial within trial in order to determine whether in fact, the statement was voluntarily made. – PER A. SANUSI, J.S.C

“Now the next question to consider is whether the prosecution had adduced credible and cogent evidence in proof of the offence of armed robbery against the accused/appellant independent of or apart from the confessional statement wrongly admitted? This question is apt because even if there is no confessional statement relied on in proof of its case against an appellant, the prosecution can still rely on other evidence, be they eye witness account or circumstantial evidence. See Onyeye v State (2012) L PELR 7866 (SC); Emeka v State (supra)“. PER A.SANUSI,J.S.C

“By the provision of Section 138 (1) prosecution has the burden to prove its case beyond reasonable doubt. Such burden can be discharged through the testimony of even a single eye witness account of the commission of the crime by an accused person once such testimony is credible and is believed by the trial court. See Abouge v G P (1959) SCNLR 576; Fotoyunbo vs AG of Western Nigeria (1966) WNLR 4; The State vs  Afolabi (2010) 43 NSCQ 256″. PER A.SANUSI,J.S.C

“It is trite law, that failure to tender the offensive weapon used during a robbery operation cannot result in the acquittal of the accused person because of the strong possibility of accused person to destroy, throw or do away with the offensive weapons after the commission of the crime in order to exculpate himself from criminal responsibility. See Olayinka v State (2007) 9 NWLR (pt 1040) 561; Okosi vs AG Bendel State (supra) .In fact, there is no principle of law, that insists that the prosecution must always tender weapons used during robbery operations in order to obtain conviction. See Olajuka v State (supra)“. PER A.SANUSI,J.S.C

“In refreshment of the memory to what has become trite in law that in criminal trials the guilt of an accused person can be established by any or all of the following:

(a)        Confessional Statement of the accused,

(b)        Circumstantial evidence

(c)        Evidence of an eye witness. See State v Usman Isah (2013) 8 NCC 320 at 325; Igabele v State (2006) 5 MJSC 96 at 100″. PER M.U. PETER-ODILI,J.S.C

 

Evidence Act 2011 as amended

Robbery and Firearms (special provision) Act, Cap R 11 Laws of Federation of Nigeria 2004