By Legalpedia

ABAYOMI ISHOLA v. THE STATEsuit no: CA/G/196C/2017

Legalpedia Electronic Citation: (2021) Legalpedia (CA) 37817

Areas Of Law:

Appeal, Court, Criminal Law And Procedure, Law Of Evidence, Practice And Procedure, Words And Phrases

SUMMARY OF FACTS:

On or about the 2nd day of August 2012, there was an armed robbery incident at Km 14, Idiroko Road, Iju-Ota, Ogun State. The Toyota Camry Car belonging to the PW1 was stolen during the robbery.

Shortly after the robbers made their getaway, the PW1 raised an alarm and a report of the robbery was lodged with the Police.

Subsequently, information filtered to the PW1 that a Toyota Camry Car, which matched the description of his stolen car was recovered by the Police from the Appellant, who was seen driving the car, and was unable to produce the vehicle particulars when the Police stopped him and demanded for the same.

The PW1 proceeded to where the vehicle was said to have been recovered and identified the vehicle as his own, which was stolen at a robbery incident in his house that day.

The Appellant was eventually arraigned before the High Court of Ogun State, on an Information which preferred charges of conspiracy to commit armed robbery and armed robbery contrary to and punishable under Sections 1 (2) (a) 1 and 6 (b) of the Robbery and Firearms (Special Provisions) Act, Cap. R11, Laws of the Federation of Nigeria.

The Appellant pleaded not guilty and the matter went to trial. At the end of the trial, the lower Court, in its judgment convicted the Appellant as charged and sentenced him to death.

Peeved by the trial court’s decision, the Appellant filed an appeal to this Court.

HELD: Appeal Dismissed ISSUES FOR DETERMINATION

Ø Whether having regard to the circumstances of this case and the evidence on record, the lower Court was right in holding that the charges against the Appellant were proved beyond reasonable doubt.

RATIONES

FORMULATION OF ISSUES FOR DETERMINATION – WHETHER AN APPELLATE COURT IS OBLIGE TO REFORMULATE ISSUES FOR DETERMINATION IN AN APPEAL

“It is settled law that an appellate Court can adopt the issues formulated by the parties, but the Court is not only obliged, it is entitled to, in the interest of justice, to reframe or reformulate issues from the grounds of appeal in a manner that would bring out what is really in controversy and for the purposes of accuracy, clarity, brevity and precision that would lead to a proper determination of the appeal. See Okeke vs. The State (2016) LPELR (26057) 1 at 28-31, Kayode vs. The State (2016) LPELR (40028) 1 at 8-9, The State vs. Sani (2018) LPELR (43598) 1 at 10-12 and Salawu vs. FRN (2019) LPELR (50060) 1 at 4-5. . PER U. A. OGAKWU, J.C.A

STANDARD OF PROOF – NATURE OF THE STANDARD OF PROOF IN CRIMINAL TRIALS

“Under our adversarial criminal justice system, the Prosecution has the onus of proving the commission of the crime charged. By Section 135 of the Evidence Act, the standard of proof in a criminal case is proof beyond reasonable doubt. The lower Court held that the said standard of proof was attained, consequent upon which it convicted and sentenced the Appellant to death. Proof beyond reasonable doubt means proof of an offence with the certainty required in a criminal trial. That certainty is that the offence was committed, which is established by proving the essential ingredients of the offence, and that it is the person charged therewith that committed the offence . PER U. A. OGAKWU, J.C.A

PROOF BEYOND REASONABLE DOUBT – WHAT AMOUNTS TO PROOF BEYOND REASONABLE DOUBT?

“There is nothing esoteric in the apothegm that in criminal trials the burden is on the Prosecution to prove the offence charged beyond reasonable doubt. Proof beyond reasonable doubt does not mean proof beyond all shadow of doubt and if the evidence is strong against a man, as to leave only a remote probability in his favour, which can be dismissed with the sentence: “of course it is possible, but not in the least probable”, then the case is proved beyond reasonable doubt. See Miller vs. Minister Of Pensions (1947) 2 ALL E.R. 372, Michael vs. The State (2008) LPELR (1987) 1 at 24 and Bakare vs. The State (1987) 3 SC 1 or (1987) LPELR (714) 1 at 12-13″. PER U. A. OGAKWU, J.C.A

PROOF BEYOND REASONABLE DOUBT – MEANING OF PROOF BEYOND REASONABLE DOUBT

“Proof beyond reasonable doubt does not mean or import beyond any degree of certainty. The term strictly means that within the bounds of the evidence adduced before the Court, no tribunal of justice would convict on it having regard to the nature of the evidence led in the case. It should be a proof that excludes all reasonable inference or assumption except that which it seeks to support. It must have clarity of proof that is readily consistent with the guilt of the accused person. See The State vs. Onyeukwu (2004) 14 NWLR (PT 893) 340 at 379-380 and Onianwa vs. The State (2015) LPELR (24517) 1 at 40-41.

I iterate that proof beyond reasonable doubt means proof of an offence with the certainty required in a criminal trial. That certainty is that the offence was committed, which is established by proving the essential ingredients of the offence, and that it is the person charged therewith that committed the offence. Generally, in criminal trials, the burning issue is not ordinarily whether or not the offence was committed. Most often, the disceptation is on the identity of the person or persons alleged to be the actual perpetrators of the offence charged: Ndidi vs. The State (2007) 13 NWLR (PT. 1052) 633 at 651. PER U. A. OGAKWU, J.C.A

GUILT OF AN ACCUSED PERSON – WAYS OF PROVING THE GUILT OF AN ACCUSED PERSON

“It is settled law that there are three ways or methods of proving the guilt of an accused person, namely:

By reliance on a confessional statement of an accused person voluntarily made. By circumstantial evidence. By evidence of eyewitnesses. See Emeka vs. The State (2001) 32 WRN 37 at 49, Okudo vs. The State (2011) 8 NWLR (PT. 1234) 209 at 236 and Adeyemo vs. The State (2015) LPELR (24688) 1 at 16. PER U. A. OGAKWU, J.C.A

CRIMINAL LAW AND PROCEDURE, LAW OF EVIDENCE, PRACTICE AND PROCEDURE

OFFENCE OF ARMED ROBBERY – INGREDIENTS A PROSECUTION MUST ESTABLISH BEYOND REASONABLE DOUBT IN ORDER TO SECURE A CONVICTION FOR ARMED ROBBERY.

“The law is settled beyond peradventure on the conjunctive ingredients which the prosecution has to establish beyond reasonable doubt in order to secure a conviction for armed robbery. They are:

That there was a robbery. That the robbery was an armed robbery. That the accused person was one of the armed robbers. See Bozin vs. The State (1985) LPELR (799) 1 at 6, Ikemson vs. The State (1998) 1 ACLR 80 at 103 and Ogogovie vs. The State (2016) LPELR (40501) 1 at 10-11.

As stated by Learned State Counsel, the law is settled under the provisions of Section 167 (a) of the Evidence Act is that a man found in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession, and which position the Courts have truly restated in a plethora of cases including Afolabi vs. The State (supra). PER U. A. OGAKWU, J.C.A

“ON OR ABOUT” – MEANING OF “ON OR ABOUT”

“Critical in the resolution of the contention in this regard is the underlined phrase “on or about” employed in the Charge. Happily, there exists judicial decisions on the meaning of this phrase when it is employed in a Charge. In Awopejo vs. The State (2000) 6 NWLR (PT 659) 1 at 13, this Court (per Amaizu, JCA) stated as follows:

“It is common ground that the charge on which the appellants were arraigned alleges that ‘on or about the 29th day of September, 1993, the appellants caused the death of one Alhaji Issa…’

It is suggested that because of the evidence before the Court that the deceased was murdered on 30/9/93… One may ask what does the phrase ‘on or about 29th September, 1993’ in the charge mean. 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 sometimes 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 also Rex vs. Eronini 14 WACA 366 and Akpa vs. The State (2006) LPELR (7603) 1 at 22-23. Recently in Muhammed vs. The State (2020) LPELR (51006) 1 at 10-13, Daniel-Kalio, JCA, forcefully stated the legal position, inter alia, as follows:

“With regard to the argument that the contents of the confessional statements did not reflect the commission of the crime having regard to the time of the commission of the crime as stated in the Charge, a look at the wording of the Charge as regards the time of the commission of the crime shows that it is not very specific as to the time of the crime. The charge reads…

‘on or about the 23rd day of November, 2016…’. Now, the phrase ‘on or about’ has received judicial interpretation in a number of cases. …where the phrase ‘on or about’ is used in a charge, it is not necessary to prove the precise date the alleged offence was committed. It is clear to me that the phrase ‘on or about’ is used to indicate an approximate time or location. When used in a charge, … It is to prevent a variance between the charge and the proof of the charge whether through a confessional statement or some other evidence. Thus, the argument of the Appellant’s Learned Counsel that the lower Court should not have given credence to the confessional statements of the Appellant because their content as to the date of the commission of the crime is not in harmony with the date of the commission of the crime as stated in the charge, is misconceived.”

See also Veepee Industries Limited vs. Cocoa Industries Ltd (2008) LPELR (3461) 1 at 20. PER U. A. OGAKWU, J.C.A

CONFESSIONAL STATEMENT – WHETHER COURTS CAN ACT ON RETRACTED CONFESSIONAL STATEMENT WITHOUT FIRST APPLYING THE TEST FOR DETERMINING THE VERACITY OR OTHERWISE OF THE CONFESSIONAL STATEMENT

“Undoubtedly, the legal position is that a Court cannot act on a retracted confessional statement without first applying the test for determining the veracity or otherwise of the confessional statement. The law enjoins the Court to seek any other evidence, however slight, or circumstances which make it probable that the confession is true: R vs. Sykes (1913) 1 Cr. App. R 233, Nwaebonyi vs. The State (supra), Akinmoju vs. The State (2000) 4 SC (PT. I) 64 at 81 and Ubierho vs. The State (2005) 7 MJSC 168 at 188-189. PER U. A. OGAKWU, J.C.A

CONFESSIONAL STATEMENT – TEST TO DETERMINE THE VERACITY OF A CONFESSIONAL STATEMENT

“It is thus apposite at this stage to consider the confessional statements of the Accused person and consider whether it can pass the tests laid down to ascertain its truth by looking for other evidence outside it, no matter how slight in order to ascribe probative value to it. The tests so laid down which are herewith reproduced are contained in the Supreme Court decision of Dawa & Anor & Vs The State (1980) 8-11 S.C. 147

(1) Is there anything outside the confession to show that it is true?

(2) Is it corroborated?

(3) Are the relevant statements made in it of facts, true as they can be tested?

(4) Was the prisoner one who had the opportunity of committing the offence?

(5) Is his confession possible?

(6) Is it consistent with other facts which have been ascertained and have been proved?

– PER U. A. OGAKWU, J.C.A

OFFENCE OF ARMED ROBBERY – WHETHER A PRINCIPAL OFFENDER IS LIABLE TO BE CONVICTED FOR THE OFFENCE OF ARMED ROBBERY

“The Appellant, by operation of law, is a principal offender and remains liable as such. Section 6 (a) and (b) of the Robbery and Firearms (Special Provisions) Act, the enactment under which the Appellant was charged, tried and convicted provides thus:

“6. Any person who –

(a) aids, counsels, abets or procures any person to commit an offence under Section 1, 2, 3 or 4 of this Act; or

(b) conspires with any person to commit such an offence; or

(c) whether or not he is present when the offence is committed or attempted to be committed, shall be deemed to be guilty of the offence as a principal offender and shall be liable to be proceeded against and punished accordingly under this Act.”

See Adekoya vs. The State (2017) LPELR (41564) 1 at 18, Odewole vs. The State (2021) LPELR (52833) 1 at 24 and Aliu vs. The State (2021) LPELR (53354) 1 at 40-42. PER U. A. OGAKWU, J.C.A

DOCTRINE OF RECENT POSSESSION – OPERATION OF THE DOCTRINE OF RECENT POSSESSION

“Section 167 (a) of the Evidence Act 2011 enacts as follows:

“167. The Court may presume the existence of any fact which it deems likely to have happened, regard shall be had to the common course of natural events, human conduct and public and private business, in their relationship to the facts of the particular case, and in particular the Court may presume that –

(a) a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession.”

The above stipulation, which enacts the doctrine of recent possession, is a rebuttable presumption of fact. Presumptions of fact are logical inference drawn from other known facts. By the provision the presumption that the person in possession of stolen goods soon after the theft is either the thief or the receiver of the stolen goods, is rebutted where the person can account for his possession of the goods. The legal consequence of arriving at a presumption is to call on the Appellant to produce contrary evidence. For the doctrine to operate there ought to be evidence:

1) That the person was found in possession of some goods.

2) That those goods were recently stolen.

3) That the person failed to account for his possession of the goods.

See Eze vs. State (1985) LPELR (1189) 1 at 11-13 or (1985) 3 NWLR (PT. 13) 419 at 436, Ehimiyein vs. The State (2016) LPELR (40841) 1 at 29-30 and Madagwa vs. The State (1988) LPELR (1804) 1 at 49-51. Where there is enough explanation as to how the person came by the property, the presumption will not apply. In State vs. Nnolim (1994) 6 SCNJ 48 or (1994) 5 NWLR (PT. 345) 394 at 410, Adio, JSC stated as follows:

“An explanation by the accused person of the way in which a stolen property came into his possession which might be reasonably true and which is consistent with innocence, although the Court may not be convinced of its truth would displace the presumption.”

Consequently, an accused person may rebut the presumption by giving evidence on the balance of probability and where the explanation is reasonable the onus on the accused person is discharged and the presumption will not apply. See Yongo vs. COP (1990) 5 NWLR (PT. 148) 103 and Omopupa vs. State (2007) LPELR (8571) 1 at 28. PER U. A. OGAKWU, J.C.A

DOCTRINE OF RECENT POSSESSION –WHETHER AN ACCUSED PERSON CAN BE CONVICTED ON THE OFFENCE OF RECENT POSSESSION BASED ON HIS RETRACTED CONFESSIONAL STATEMENT

“The possession of the stolen vehicle was truly recent in light of the proximity of time in the robbery and when the vehicle was recovered from the Appellant; indeed, it was the same day of the robbery. In the circumstances, it was therefore open to the lower Court to convict the Appellant for the offence as there was the further evidence to buttress the application of the doctrine in the eyewitness testimony of the PW1, which put the Appellant at the scene of crime, the circumstantial evidence of the Appellant being apprehended with the vehicle, which is strengthened by the confessional statement of the Appellant that the vehicle was recovered from him; which confessional statement, though retracted, has ample corroboration from the other evidence, outside the confession adduced by the Prosecution and as rightly found and held by the lower Court. See Gbadamosi vs. The State (1992) LPELR (1313) 1 at 18-19, The People Of Lagos State vs. Umaru (2014) LPELR (22466) 1 at 51-52 and Kolawole vs. The State (2015) LPELR (24400) 1 at 50. PER U. A. OGAKWU, J.C.A

PROOFS OF EVIDENCE –WHETHER PROOFS OF EVIDENCE IS A PIECE OF LEGAL OR JUDICIAL EVIDENCE WHICH A COURT CAN ACT UPON

“It is rudimentary law that proofs of evidence are mere summaries of statements of witnesses to be called by the Prosecution and it is settled law that they are not pieces of legal evidence on which the Court acts. They are not pieces of judicial evidence in proof of a crime in the Court. See FRN vs. Wabara (2013) LPELR (20083) 1 at 20-21, Dada vs. FRN (2014) LPELR (24255) 1 at 15, Idagu vs. The State (2018) LPELR (443443) 1 at 38 and Erhadavwe vs. The State (2020) LPELR (52418) 1 at 64. Accordingly, the summaries of statements by a witness in the proof of evidence not being a piece of legal or judicial evidence which a Court can act upon, cannot be equated to the testimony of a witness given in Court under oath and subjected to the crucible of cross examination such that it can be said that there is a contradiction between the testimony of the witness in Court and what is summarised in the proof of evidence. No! That is not the Law as I know it. PER U. A. OGAKWU, J.C.A

CRIMINAL TRIAL – WHETHER THE PROSECUTION IS OBLIGATED TO CALL EVERY AVAILABLE PIECE OF EVIDENCE TO PROVE ITS CASE

“It is abecedarian law that the prosecution is not required to call every available piece of evidence to prove its case. It suffices if sufficient evidence is called to discharge the onus of proof beyond reasonable doubt. See Odili vs. The State (1977) LPELR (2221) 1 at 10, Theophilus vs. The State (1996) LPELR (3236) 1 at 18-19, Afolalu vs. The State (2010) LPELR (197) 1 at 32-33 and Mukoro vs. FRN (2015) LPELR (24439) 1 at 27. The Prosecution has a discretion when it comes to who to call as a witness: Adaje vs. The State (1979) 6-9 SC 18 at 28. Where the Appellant considered that any potential witnesses from Onipanu Police Station was a vital witness, then the Appellant should have called such a witness and not expect the Prosecution to call him, when nothing stopped the Appellant from calling him. See Nwaeze vs. The State (1996) 2 NWLR (PT. 425) 1 at 15, Asariyu vs. The State (1987) 4 NWLR (PT. 67) 709, Ogbodu vs. The State (1987) 2 NWLR (PT. 54) 20 and Eze vs. The State (2013) LPELR 1 at 29″. PER U. A. OGAKWU, J.C.A

FACTS – CONCEPT OF FACTS

“Facts are the fountainhead or arrowhead of the law. The decision in a case is intimately related to the facts that induced the decision. Where the facts of a given matter are different from the decision in an earlier case, it will be pulling the ratio in the earlier case out of context and giving it a general application if it is sought to apply the decision to totally different facts. Therefore, the principle laid down in Ogudo vs. The State (supra) and relied upon by the Appellant will only be applicable where the diacritical facts of this matter are the same as the facts that induced the decision in the said case. See Adegoke Motors Ltd vs. Adesanya (1989) 5 SC 92 at 100, Fawehinmi vs. NBA (NO. 2) (1989) 2 NWLR (PT. 105) 558 at 650, Onwuamadike vs. IGP (2018) LPELR (46039) 1 at 31, Okoye vs. COP (2020) LPELR (50102) 1 at 26 and Ezeogwum vs. COP (2020) LPELR (50103) 1 at 26. PER U. A. OGAKWU, J.C.A

PROOF OF EVIDENCE – WHETHER PROOF OF EVIDENCE IS JUDICIAL EVIDENCE ON THE BASIS OF WHICH A COURT CAN HOLD THAT THE PROSECUTION FAILED TO TENDER THE STATEMENT BY AN ACCUSED PERSON

“The summary of what he is to testify to, contained in the proof of evidence, is not judicial evidence on the basis of which a Court can hold that the prosecution failed to tender the statement volunteered by the Appellant at Onipanu Police Station: Idagu vs. The State (supra), FRN vs. Wabara (supra) and Dada vs. FRN (supra). PER U. A. OGAKWU, J.C.A

Statutes Referred To:

Evidence Act 2011 Robbery and Firearms (Special Provisions) Act, Cap. R11, Laws of the Federation of Nigeria