Proof in criminal trials is attained against the background of burden
So held the Supreme Court holden at Abuja in a unanimous leading judgment delivered by His Lordship, C.C. Nweze JSC with his learned brothers Mohammed S. Muntaka Commasie JSC, Bode Rhodes-Vivour JSC, Nwali S. Ngwunta JSC, and Kumai B. Aka’ahs JSC concurring while allowing the Appeal.
The Appellant in this appeal (as Accused person) was arraigned before the High Court of Oyo State, holden at Ibadan,on a two-count charge of conspiracy to commit armed robbery and armed robbery contrary to Sections 6 (b) and 1(2) (a) of theRobbery and Firearms (Special Provisions) Act, Cap. R. 11, Vol.14, Laws of the Federation of Nigeria, 2004.
He was alleged tohave committed the said offences with others at large on March 7, 2005 at Igouil Petrol Station, Boluwaji, Ibadan. Sequel to his plea (expectedly, he pleaded not guilty), the Prosecution called five witnesses in proof of the allegations against him.
Eighteen exhibits were, equally, tendered through thesaid witnesses. On his part, the Appellant, apart from testifying in his defence, did not call any other witness.
In its judgment of February 27, 2009, the court (hereinafter, simply, referred to as “the trial court”) convicted and sentenced him to death by hanging.
Following the dismissal of his appeal against that judgment by the Court of Appeal, Ibadan Division (hereinafter called “the lower court”), he, then, approached this court, urging it to determine the six issues he formulated from his Grounds of Appeal. These issues were framed thus:
1. Whether, following the fundamental irreconcilable conflict between the charge and the evidence adduced at the trial court, the learned justices of the court of Appeal were right to have affirmed the conviction and death sentence of the Appellant when it passed on the Appellant when it was clear that there was no nexus between the offence charged and the conviction.
2. Whether the learned justices of the Court of Appeal were right to have affirmed the conviction and death sentence passed on the Appellant for conspiracy to commit armed robbery and armed robbery when it was clear, from the record, that the Prosecution failed to prove the offences against the Appellant beyond reasonable doubt as required by law?
3. Whether the learned justices of the Court of Appeal were right in affirming the conviction and death sentence on the Appellant when, given the character of evidence that was led at the trial court, it was clear that the verdict was unreasonable, unwarranted and unsupportable?
4. Whether the decision of the lower court affirming the conviction and death sentence on the Appellant was right when it was evident from the record that both the learned trial judge and the learned justices of the lower court woefully failed in their duty to consider all the defences open to the Appellant before arriving at the said conviction and affirmation?
5. Whether the learned justices of the lower court were right to have affirmed the conviction and death sentence passed on the Appellant by the trial court when, going by the record, it was clear that the defence of duress was available to the Appellant?
On his part, the Prosecution formulated a sole issue which counsel couched in these words: Whether the court below was right to affirm the Appellant’s conviction on the basis that the Respondent proved its case beyond reasonable doubt?
Armed with the far-reaching insights gained from my intimate and painstaking reading of the statements of the said offences and the totality of the testimonies of the Prosecution’s witnesses, I take the view that only Issue One is determinative of this appeal.
In this regard, the sole issue that would guide my consideration of the agitations of the Appellant against the judgment of the lower court, which affirmed his conviction and sentence by the trial court, is the question: Whether, following the fundamental irreconcilable conflict between the charge and the evidence adduced at the trial court, the lower court, rightly, affirmed the trial court’s conviction of, and death sentence on, the Appellant when there was no nexus between the offence charged and the conviction? ARGUMENTS ON THE SOLE ISSUE APPELLANT’S CONTENTION In the main brief, it was contended that in all criminal trials, an Accused person would not be convicted unless the Prosecution proves the offence charged beyond reasonable doubt, citing Section 138 of the Evidence Act (then applicable) and Oteki v A.G., Bendel State (1986) 4 S.C. (Reprint) 167.
Against this background, he maintained that the Prosecution has a duty to establish every particular of the offence charged, failing which a favourable verdict would be entered for the Accused person, Oyebade v. Tiv Native Authority (1967) NNLR 71; Amadi v.
The State (1993) 8 NWLR (Pt. 314) 644, 664 SC. Counsel outlined the ingredients of the offences of conspiracy and armed robbery.
He canvassed the view that the Prosecution’s inability to establish any of the said ingredients would yield a favorable judgment for the Accused person.
He drew attention to the fact that the Appellant (as Accused person) was charged for the offences of armed robbery and conspiracy to rob someone at a place, a petrol station, and the Prosecution specified the location with definite particularity as the Igouil Petrol Station.
He expressedthe view that the sharp discrepancy between the location of thealleged crime (as described in the Charge Sheet) and the Location (established in the evidence led before the trial court) could not have eventuated from a clerical error or illiteracy of the witnesses, Queen v Zakwakwa of Yorro (supra).
He pointed out that, in its attempt to prove the offences, the Prosecution called five literate witnesses, (P.W.1; P.W.2; P.W.3; P.W.4 and P.W.5), who, however, did not, in their respective testimonies, refer to any robbery at any petrol station, much less, any robbery at Igouil Petrol Station He drew attention to the fact that a specific, precise and distinct petrol station, Igouil Petrol Station, was clearly and unambiguously, stated as the locus criminals.
In his view, that was a clear demonstration that the person who drafted the said charge did not entertain any doubt as to the venue of the alleged offence.
Having regard to the circumstances described above, he urged the court to reverse the verdict of the trial court, as affirmed by the lower court. In its place, he implored the court to find and hold that the charge of conspiracy and armed robbery against the Appellant, as far as they related to the incident that, allegedly, took place at one Igouil Petrol Station, was not proved. In consequence, he maintained, the Appellant is entitled to this court’s order discharging and acquitting him.
Respondent’s Submissions In the said brief, reference was made to Sections 166, 167 and 168 of the Criminal Procedure Law on the effect of errors or defects in charges.
He cited several authorities on what an Accused person should do if he has any objection to any error, omission or defect in a charge (Paragraphs 3.1 -3.9, Pages 2-6, of the Respondent’s brief).
He conceded that for the Prosecution to succeed in a charge of robbery, the three ingredients, consistently, highlighted in case law must be proved beyond reasonable doubt.
Although he acknowledged that the trial court had a duty to consider all the defences that availed the Accused person, he maintained that proof beyond reasonable doubt imposes a duty on the Prosecution to prove the main ingredients of the offence charged which, in his submission, the Prosecution did at the trial court.
He pointed out that, being an appeal against concurrent findings, the Appellant must show that the judgment was perverse or cannot be supported having regard to the evidence adduced, Ibukunle v. The State (2007) 1 S.C. (Pt. II) 32; Olaiya v. State (2010) 1 S.C. (Pt. I) 89.
He urged the court to dismiss the appeal. Appellant’s Reply Expectedly, he dismantled the Respondent’s claim that the Appellant did not complain or challenge the so-called defect in the charge.
Accordingly, he contended that Sections 166; 167 and 168 of Oyo State, similarly worded like Sections 166; 167 and 168 of the CPA, do not avail the Respondent.
He reiterated hisearlier submission that what happened at the trial court was thatone incident or robbery was alleged in a particular location but the witnesses for the Prosecution adduced evidence of anotherincident, totally, different from the one charged.
Put differently, he averred that the offence charged was at variance with the evidence tendered in proof, Raymond Nwokedi v. Commissioner of Police (1977) 3 S.C. (Reprint) 35.
He maintained that the Prosecution could not be said to have discharged its burden of proving the offence charged unless it, successfully, proves all the essential ingredients of the offence as stated in the charge, Aruna v. State (1990) 9-10 S.C. 87.
He contended that establishing the locus of an offence (as laid in the charge) is so crucial to its proof that an Accused person would earn his acquittal where such proof is not forthcoming, A.G., Federation v Chanri and Anor (1965) All NLR 338.