Proof in criminal trials is attained against background of burden (3)
Thus the only explanation for his failure to mention the Appellant’s name was that he did not see him (the Appellant) during the robbery incident (if, indeed, there was any such incident in their residence), see, Onuoha and Ors v. The State (supra) at Page 121; Kalu v. The State (1988) 10-11 S.C. 19; Isah v. The State (2008) 4-5 S.C. (Pt. I) 76. Against this background, the Appellant’s counsel urged the court to reverse the concurrent findings of the lower courts to the effect that the Appellant was linked with the said offence. Onuoha and Ors v State (supra); Kalu v The State (supra); Isah v. The State (supra) etc are decisions of this court on the effect of a trial court’s non-direction on a point in favour of the Appellant which occasioned a miscarriage of justice. In the instant case, there was a non-direction, by the trial court, on the effect of P.W.3’s failure to mention the Appellant’s name at the earliest opportunity. Yet the lower court endorsed its (the trial court’s) approach). It is in this context that I hold the view that the submission of the Appellant’s counsel on this point is as forceful as it is unanswerable, As I had noted above, the trial court’s said omission was a non-direction which occasioned a miscarriage of justice, Onuoha and Ors v State (supra); Kalu v The State (supra); Isah v. The State (supra). Thus, notwithstanding the lower court’s concurrent findings, this court is justified in interfering with them, Omoregbe v. Edo (1971) 1 All NLR 282, 289; Fashanu v. Adekoya (1974) 6 S.C. 83; (1974) 6 S.C. (Reprint) 72; Okolo v. Uzoka (1978) 4 S.C. 77, 86. Surely, this court will, readily, upset concurrent findings of lower courts where there are exceptional circumstances, such as, where the findings are perverse; where there was a miscarriage of justice or where a principle of Law or procedure was not followed, Ogbu v. State (1992) 8 NWLR (Pt. 295) 255 SC; Igago v. State (1999) 10-12 S.C. 84.
In the instant case, it has been, demonstrably, shown that the trial court’s non-direction on a point in favour of the Appellant occasioned a miscarriage of justice, Onuoha & Ors. v. State (supra); Kalu v. The State (supra); Isah v. The State (supra). The net effect is that there is nothing in the testimonies of the five witnesses linking the Appellant with the commission of the said offence.
It is true that the Prosecution only has a duty to call witnesses to establish its case beyond reasonable doubt, The State v. Azeez (2008) 4 S.C. 188; Oluwatoba v. The State (1985) 2
S.C. 297; Adamu v. State (1991) 6 S.C. 17; Amuneke v. State (1992) 6 NWLR (Pt. 217) 338 CA.
It, however, has an obligation to place all available relevant evidence before the trial court, The State v. Azeez (supra). Thus, where there is a vital point in issue (as in the instant case where the identity of the Appellant was put in issue by the evidence of the P.W.3) and there is
one witness (again, as in the instant case where the sister of the P.W.2 was alleged to have seen the robbers and even received threats of ravishment from them) whose evidence would settle it one way or the other, that witness ought to be called, The State v. Azeez (supra), approvingly, citing R v. Kuree (1941) 7 WACA 175; In R v. Harris (1927) 2 KB 587; Okonkwo v. Police (1953) 20 NLR 165.
As I had observed elsewhere, in our system of criminal justice, proof is not analogous to the requirement of proof in the Science of numbers, otherwise known as Mathematics. Unlike mathematics, where proof is attained through inflexible formulae and answers are arrived at
with inviolable certitude, proof in criminal trials is attained against the background of the burden codified in Section 138 (1) of the Evidence Act (supra), Ebeinwe v. The State
(2011) 1-2 S.C. (Pt. II) 43.
The law, therefore, does not impose a duty on the Accused person to purge himself of guilt, Onuchukwu v. The State (1998) 4 S.C. 49; Olatinwo. v. The State (2013) 2-3 S.C. (Pt. IV).
Rather, it imposes an obligation on the Prosecution to prove his (the Accused person’s) guilt
beyond reasonable doubt.
This is an offshoot of the impregnable canon ordained in Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). This section guarantees the right to the presumption of innocence.This court has interpreted the section (Section 36 (5)) as
imposing the burden of proving the guilt of an Accused person on the Prosecution, Posu & Anor v. The State (2011)1-2 S.C. (Pt. I) 156; The State v. Azeez & Ors. (2008)
4 S.C. 188; Okoro v The State (1988) 12 S.C. (Pt. II) 83. The duty thus imposed on the
Prosecution is to prove the case beyond reasonable doubt. This is axiomatic. It is, indeed, well-settled under Nigerian criminal jurisprudence, Bello v. State (2007) 10 NWLR (Pt. 1043) 564, 585 CA.
Although, it is not essential to prove the case with absolute certainty, the ingredients of the offence charged must, however, be proved as required by law and to the satisfaction of the court, Obiakor v. State (2002) 6 S.C. (Pt. II) 33; Nwokedi v. COP (1977) 3 S.C. 35, 40; (1977) 3S.C. (Reprint) 20. These authorities constitute a contemporary judicial affirmation of the maxim which was very popular in the latin days of the law, judicis est judicare secundum allegata et probata, which, simply, means that it is the duty of a judge to decide according to facts alleged and proved.
From an examination of the Prosecution’s allegation as evidenced in the charge against the Appellant before the trial court and my meticulous consideration of the totality of the evidence in proof thereof, as per the testimonies of P.W.1; P.W.2; P.W.3; P.W.4 and P.W.5, I harbour grave and genuine doubts about the lame story of the Prosecution. Having failed to lead any scintilla of evidence in proof of the ingredients of the offences which the Appellant, allegedly, committed on March 7, 2005, at Igouil Petrol Station, Boluwaji, Ibadan, I hold the strong view that the Prosecution failed in its duty to discharge the burden of proof which the law vests upon it.
It cannot be gainsaid that the Prosecution, equally, failed to prove the separate and distinct offence of conspiracy, Balogun v. Attorney- General of Ogun State (2002) 2 S.C. (Pt. II) 89.
The Appellant (as Accused person) is, therefore, entitled to the benefit of the doubt, thus, created, Ikhane v C.O.P. (1977) 6 S.C. 119; (1977) 6 S.C. (Reprint) 78; The State v. Aibangbee and Anor. (1988) 7 S.C.(Pt. I) (Reprint) 96; Onuoha and Ors v. The State (1989)2 S.C. (Pt. II) 115; Onafowokan v. The State (1987) 7 S.C. (Pt. II) (Reprint) 198; Ekpe v. The State (1994) 12 SCNJ 131 SC; Namsoh v. The State (1993) 6 SC.
The only verdict, in the circumstance, is that of his discharge and acquittal, Posu and Anor v. The State (2011) 1-2 S.C. (Pt. I) 156; Afolalu v. The State (2010) 5-7 S.C. (Pt. II) 93; Alonge v. IGP (1959) SCNLR 516; The State v Danjuma (1997) 5 NWLR (Pt. 506) 512 SC. The lower court failed in its duty in this regard. This court, on its part, will not brook the subsistence of such a parody of justice. In consequence of all I have said above, I find that I have to, and, I hereby, allow this appeal. I, therefore, enter an order setting aside the judgement of the lower court which affirmed the trial court’s conviction and sentence on the Appellant.
In its place, I order the discharge and acquittal of the Appellant and his release from the custody of the Prison authorities forthwith. Appeal allowed.