Proof in criminal trials is attained against the background of burden (2)

IN THE SUPREME COURT OF NIGERIA
HOLDEN ATABUJA
ON FRIDAY, THE 27TH DAY OF MARCH, 2015
BEFORE THEIR LORDSHIPS
MOHAMMED S. MUNTAKA-COOMASSIE
JUSTICE, SUPREME COURT
BODE RHODES-VIVOUR
JUSTICE, SUPREME COURT
NWALI S. NGWUTA
JUSTICE, SUPREME COURT
KUMAI B. AKAAHS
JUSTICE, SUPREME COURT
CHIMA C. NWEZE
JUSTICE, SUPREME COURT
SC. 255/2012
BETWEEN:
MOHAMMED IBRAHIM……………………………..
APPELLANT
AND
THE STATE ………………..

RESPONDENT

Resolution of the Issue
WITH profound respect, it would appear that the Honourable Attorney General of Oyo State, who appeared for the Respondent, totally, misconceived the substance of the Appellant’s contention. He placed undue reliance on Sections 166, 167 and 168 of the Criminal Procedure Law of Oyo State. Contrary to the above submission, the gist of the Appellant’s argument was that none of the essential ingredients of the offence of armed robbery on March 7, 2005 at Igouil Petrol Station, Boluwaji, Ibadan, was proved. Thus, in order to accentuate the irrelevance of the said submissions (Pages 2-6 of the Respondent’s brief), it has become necessary to adumbrate on the import of those Sections of the Criminal Procedure Law of Oyo State.

By virtue of Section 36 (6) (a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), every person who is charged with any offence shall be entitled to be informed, promptly, in the language he understands, and in detail, of the nature of the offence, Amala v. State (2004) 6-7 S.C. 105; Ezeze v. State (2004) 14 NWLR (Pt. 894) 491; Okeke v. The State (2003) 2 S.C. 63; Madu v. The State (2012) 6 S.C. (Pt. I)80; Solala v. The State (2005) 5 S.C. (Pt. I) 135. Ostensibly, therefore, the statutory prescription that every charge shall state the offence for which the Accused person is standing trial stems from this constitutional mandate. Occasionally, however, charges so drafted may contravene any of the rules of drafting charges, such as the rules against ambiguity; duplicity; mis-joinder of offenders and mis-joinder of offences, see, generally, Bob Osamor, Fundamentals of Criminal Procedure Law in Nigeria (Ojodu, Lagos: Dee-Sage Nigeria Limited, 2004) 188; O. Doherty, Criminal Procedure in Nigeria Law and Practice (London; Blackstone Press Limited, 1999) 227; O. Onadeko, The Criminal Trial Procedure (Lagos: Lannon Nigeria Ltd., 1998). This is the context in which Sections 166, 167 and 168 (supra) have to be viewed. On its part, Section 166 (supra) is designed to salvage charges which exhibit non-material errors in stating the offence or the particulars which ought to be stated and the omission to state the offence unless the Accused person was, in fact, misled by such error or omission, C.O.P. v. Okoye (1964) 1 All NLR 305; Okeke v. State (2000) 10 NWLR (Pt. 675) 423; Ogbomor v. The State (1985) 2 S.C. 289; (1985) 2 S.C. (Reprint) 244, to be misled the defect must be fundamental and misleading, Timothy v. FRN (2012) 6 S.C. (Pt. III) 159.

By Section 167 (supra), on the other hand, any objection to a charge for any formal defect on the face thereof shall be taken immediately after the charge had been read over to the Accused and not later. Put differently, an Accused person is under obligation to raise any objection to any formal defect to a charge before he takes his plea. Where he fails to do so, he is presumed to have understood the charge preferred against him, Ogunye v. The State (1999) 4 S.C. 30; Adeniji v. The State (2001) 5 S.C. (Pt. II) 100; Okeke v. The State (2003) 2 S.C. 63; Solola and Anor v. The State (2005) 5 S. C. (Pt. 135; Okewu above provisions, which the learned Honourable Attorney General relied on, cannot be considered outside their context, namely, as logical corollaries to the rules dealing with drafting of charges, O. Doherty, Criminal Procedure in Nigeria Law and Practice (London; Blackstone Press Limited, 1999) 227.

As shown above, the scenario here is, entirely, different from what transpired at the trial court (as affirmed by the lower court). In the said court, the Prosecution, meticulously, outlined the particulars of the offence charged. In fact, it was specific as to place, (the locus criminis), the Iguoil petrol station and date, March 7, 2005. Thus, having charged the Appellant (as Accused person) with the said offence, the Prosecution had a duty to prove it beyond reasonable doubt.

Now, ever since the evolution of the offence of armed robbery as a species of capital offence in our adversarial criminal justice system, our appellate courts have sagaciously enunciated the specific ingredients of this offence which must be proved to warrant a conclusion that the Prosecution has discharged the burden of proving its commission beyond reasonable doubt. The cases are many, too many indeed, that only a handful of them would be cited here, Suberu v. The State (2010) 3 S.C. (Pt. II) 105; Nwachukwu v. The State (1986) 4 S.C. (Reprint) 285.

These case are unanimous on the point that the three-fold ingredients which the Prosecution must prove in order to secure a conviction for the said offence are: (a) the factual reality of a robbery; (b) the participation of the Accused person in the said robbery operation and (c) that, at the material time when the offence was being committed, he was either armed with firearms or an offensive weapon or that he was in the company of a person who was so armed.

The pertinent question now is: how did the Prosecution fare at the trial court? As, already, indicated above, the Prosecution called five literate witnesses, (P.W.1; P.W.2; P.W.3; P.W.4 and P.W.5). Unfortunately, in their respective testimonies, none of them referred to any robbery at any petrol station, much less, any robbery at Igouil Petrol Station on March 7, 2005. The alleged victim testified as P.W.2. Her son was the P.W.3. The P.W.1 was a block seller. Three of them testified and were cross examined, about a robbery incident involving the P.W.2 at her private dwelling house situate at Nos 1 and 3, Bode Adebimpe Close, Boluwaji, Atagba Road, Boluwaji Area, Ibadan. Even P.W.4 and P.W.5, of the Sanyo Police Station and the Criminal Investigation Department of the Oyo State Police

Command, Iyaganku, Ibadan, respectively, who investigated the case of the alleged robbery, equally, in their testimonies in chief and cross examination, described the roles they played in relation to the robbery incident which occurred at a private dwelling house situate at Nos. 1 and 3, Bode Adebimpe Close, Boluwaji Atagba Road, Boluwaji Area, Ibadan, Pages 49 and 56 of the record. Just like P.W.1; P.W.2 and P.W.3; P.W.4 and P.W.5 did not testify about any robbery incident at any petrol station, much less, any robbery incident at Igouil Petrol Station.

By P.W.3’s testimony at Page 42 of the record, the Appellant was their (that is, P.W.2 and P.W.3’s) houseboy. In other words, the witness knew the Appellant very well. Most curiously, however, it was only during his testimony at the trial court that he, for the first time, raised the issue of his (Appellant’s) involvement in the robbery incident in their private residence. This prompted the submission of the Appellant’s counsel that this witness’s failure to mention the Appellant’s name at the earliest opportunity was fatal to the Prosecution’s case.

I, entirely, agree with this submission. The trial court did not allude to this aspect of the P.W.3’s testimony yet the lower court affirmed its verdict. That was a wrong approach. The trial court’s said omission was a non-direction on a point in favour of the Appellant which occasioned a miscarriage of justice, Onuoha & Ors. v. State (1989) 2 S.C. (Pt. II) 115, 135. If, indeed, he (P.W.3), who knew the Appellant, their former house boy, very well had seen him (the Appellant) in the course of the alleged robbery in their residence, that was the first thing he would have mentioned to the police.