AYOMIDE SHONEKAN v. THE STATE
(2019)LCN/13525(CA)
In The Court of Appeal of Nigeria
On Friday, the 21st day of June, 2019
CA/IB/142C/2018
RATIO
CRIMINAL LAW AND PROCEDURE: DUTY OF THE PROSECUTION
It is settled law that the burden is on the prosecution to prove the guilt of an accused person and to rebut the presumption of his innocence; and the standard that such proof must be beyond reasonable doubt has remained since the evolution of criminal jurisprudence. Section 135 (1) of the Evidence Act 2011 has given recognition to this fundamental principle of criminal law by providing that were the commission of a crime by a party to any proceedings is directly in issue, it must be proved beyond reasonable doubt. See Oseni v. State (2012) 5 NWLR (pt. 1293) 351, Igabele v. State (2006) 6 NWLR (pt. 975) 100, Aigbadion v. State (2000) 7 NWLR (pt. 686); Agbo v. State (2006) 6 NWLR (pt. 545) and Bakare v. State (1987) 1 NWLR (pt. 52) 579.PER ABUBAKAR MAHMUD TALBA, J.C.A.
PROOF BEYOND REASONABLE DOUBT DOES NOT AMOUNT TO PROOF BEYOND REASONABLE DOUBT
However the concept of proof beyond reasonable doubt has in many authorities been translated not to amount to proof beyond all shadows of doubt. See F.R.N v. Iweka (2013) 3 NWLR (pt. 1347) 285, Shande v. State (2005) 12 NWLR (pt. 939) 301 and Onakoya v. F.R.N (2002) 11 NWLR (pt. 779) 595.PER ABUBAKAR MAHMUD TALBA, J.C.A.
THE PROSECUTION HAS THE DUTY TO PROVE ALL THE INGREDIENTS OF AN OFFENCE
The prosecution also has a duty which is an up shifting burden to prove all and not merely some of the ingredients of the offence charged beyond reasonable doubt. The standard of proof is such that any element of doubt in relation to any of the ingredients the doubt is to be resolved in favour of the accused person. Bello v. State (2013) 8 NWLR (Pt. 207), Tanko v. State (2008) 16 NWLR (pt. 1114) 597 and Hassan v. State (2001) 6 NWLR (pt. 709) 286.PER ABUBAKAR MAHMUD TALBA, J.C.A.
CONSPIRACY: INGREDIENTS THAT MUST BE PROVED BEYOND REASONABLE DOUBT
For the offence of conspiracy to be proved beyond reasonable doubt as required by law the prosecution must adduce evidence to establish that:
(a) Two or more persons have entered into an agreement freely to do or commit an illegal act or
(b) Two or more persons have agreed to cause to be done an illegal act or
(c) Two or more persons have agreed freely to do or cause to be done an act which is not illegal but by illegal means.
The actual agreement alone constitute the offence and it is not necessary to prove that the act has in fact been committed. See Obiakor v. The State (2002) 6 SC and Osho v. State (2012) 8 NWLR (pt. 1302) 243.PER ABUBAKAR MAHMUD TALBA, J.C.A.
ARMED ROBBERY: INGREDIENTS TO PROVE BEYOND REASONABLE DOUBT
And for the offence of armed robbery the prosecution must establish beyond reasonable doubt the following ingredients thus:
(a) That there was a robbery or series of robberies
(b) That such robbery was an armed robbery and
(c) That the accused was one of those who took part in the armed robbery.
See Olowoyo v. State (2012) 17 NWLR Pt. 1329) 346, Joshua v. State (2010) 1 WRN 41, Onuoha v. State (1989) 2 NWLR (pt. 101) 23 and Oforlete v. State (2000) 12 NWLR (pt. 681) 415.PER ABUBAKAR MAHMUD TALBA, J.C.A.
CRIMINAL LAW AND PROCEDURE: HOW TO PROVE THE GUILT OF A PERSON UNDER CRIMINAL LAW
The prosecution can establish the guilt an accused person in three ways thus:
(1) By confessional statement of the accused person
(2) By circumstantial evidence or
(3) By evidence of eye witness account of the crime. See Haruna v. A. G. Federation (2012) 9 NWLR (pt. 1306) 419, Igabele v. State (Supra).PER ABUBAKAR MAHMUD TALBA, J.C.A.
CRIMINAL LAW AND PROCEDURE: HOW TO ESTABLISH THE IDENTITY OF AN OFFENDER IN A CRIMINAL TRIAL
There are three ways to establish the identity of the offender in a criminal trial. The first is visual identification of the offender by the victim or a witness to the offence. The second is by circumstantial evidence which proves the identity of the offender. The third is by the opinion of an expert who uses real or documentary evidence to prove the identity of the offender. In this instant case there is the visual identification by the victim. And there is also the confessional statement of the Appellant which shall be discussed later.
In Eyisi v. The State (2000) NWLR (pt. 691) 555 the Court quoted with approval the dictum of Nnaemeka ? Agu JSC in the State v. Aibangbee (1988) NWLR (pt. 84) 548 at 590, he said:
I rather think that an identification is a whole series of facts and circumstances for which a witness or witnesses associate a Defendant with the commission of the offence charged. It may consist or included evidence in the form of fingerprints, handwriting, palm prints voice identification, parade, photographs or the recollection of the features of the culprit by a witness who saw him in the act of commission which is called in question or a combination of two or more of thesePER ABUBAKAR MAHMUD TALBA, J.C.A.
WHEN THE CASE AGAINST AN ACCUSED IS DEPENDENT ON THE CORRECTNESS OF HIS IDENTIFICATION
Where the case against an accused depends wholly or substantially on the correctness of his identification which he alleges is mistaken, the Court has a duty to closely examine the evidence led therein so that if there are weaknesses discovered in such evidence which creates doubts in the mind of the Court, it must be resolved in favour of the accused. In other words, where the identity of an accused person is in issue a trial Court is enjoined to warn itself and meticulously examine the evidence adduced to see whether there are any weaknesses capable of endangering or rendering worthless any allegation that the accused was sufficiently identified or recognized by the witness or witnesses at the time of the commission of the offence charged as a participant. See Rasaki v. State (2011) 16 NWLR (pt. 1273) 251, Ebenehi v. State (2008) 10 NWLR (pt. 1096) 596 and Ndidi v. State (2005) 17 NWLR (pt. 953) 17.PER ABUBAKAR MAHMUD TALBA, J.C.A.
WHAT THE COURT SHOULD TAKE INTO CONSIDERATION IN THE IDENTIFICATION OF AN ACCUSED
As a guide the Courts are enjoined to take into consideration certain factors in ascribing probative value to the evidence of identification.
These are:
(1) The circumstances in which the eye witness saw the suspect or accused.
(2) The length of time the witness saw the suspect
(3) The lighting conditions
(4) The opportunity of close observation and
(5) The previous contacts between the suspect, and the eye witness.
See Rasaki v. State (Supra).PER ABUBAKAR MAHMUD TALBA, J.C.A.
JUSTICES
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria
ABUBAKAR MAHMUD TALBA Justice of The Court of Appeal of Nigeria
FOLASADE AYODEJI OJO Justice of The Court of Appeal of Nigeria
Between
AYOMIDE SHONEKAN Appellant(s)
AND
THE STATE Respondent(s)
ABUBAKAR MAHMUD TALBA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of Oyo State High Court delivered on the 13th day of December, 2017. The Appellant was convicted for the offence of conspiracy to commit armed robbery and armed robbery and was consequently sentenced to death by hanging.
The charge reads:
Count 1 (one)
That you Ayomide Shonekan ?N? of Road 3, Ore ? Ofe Estate, Elewi Odo Ibadan Judicial Division did conspire together to commit felony to wit; Armed Robbery and thereby committed an offence contrary to and punishable under Section 6 (6) of Robbery and Firearms (Special provisions) Act Cap R11 Laws of the Federation of Nigeria 2004.
Count 2 (Two)
?That you Ayomide Shonekan ?M? and others at large on the 11th July, 2015 at about 02:00 hours at House 3 Road 3, Ore ? Ofe Estate, Elewi Odo Ibadan in the Ibadan Judicial Division did arm yourself with a gun and rob the sum of N9,500:00, One Samsung S4 Galaxy Phone valued N75,000:00, one white Blackberry Q10 phone valued at N60,000:00 wedding ring?s valued at N2,000,000, One Gold Chain
1
with Pendant at N80,000:00, 2 (Two) Micheal Kors Wrist Watch valued at N105,000 totaling N529,500:00. Properties of One Funmilola Adeyole ?F? and thereby committed an offence contrary to and punishable under Section 1(2) (a) of the Robbery and Firearms (Special provisions) Act Cap R 11 Laws of the Federation of Nigeria 2004.
The Appellant pleaded not guilty to the two count charge. At the trial the prosecution called two witnesses and tendered seven (7) Exhibits, these are:
1. Statement of the compliant (PW1) Exhibits PA 2.
2. Confessional Statement of the Appellant which he resiled Exhibit PA 3.
3. Red iron cutter Exhibit PA 4.
4. Pair of canvass Exhibit PA 5.
5. Multi coloured red T ? Shirt Exhibit PA 6.
6. Expended cartridge Exhibit PA 7.
In his defence the Appellant testified as DW1 and he did not call any other witness. At the close of hearing the prosecution and the defence counsel filed and adopted their written addresses. In a considered Judgment delivered on the 13th December, 2017, the learned trial Judge concluded as follows:
?In the circumstance, from the totality of the
2
evidence before me, I am of the firm view that the accused person i.e DW1 should be and is hereby deemed a principal offender in the armed robbery incident of 11th July, 2015 with which he is charged and he agreed/conspired with the other 2 (Two) robbers now at large and the three (3) of them including the Accused person were all acting in concert/limity during the armed robbery incident in PW1?s apartment thus having held that the Accused person i.e DW1 is a principal offender pursuant to Section 6 (b) of the Robbery and Firearms (Special Provisions) Act and accordingly the Accused person is hereby found guilty of conspiracy under Section 6 (b) of Robbery and Firearms (Special Provision) Act Cap R. 11 laws of Federation of Nigeria 2004 as contained in count 1 (one) of the charge dated 25th October, 2016 but filed on 1st November, 2016 and is hereby convicted and sentenced to death by hanging on the neck until the Accused person is dead and may the lord have mercy on his soul.?
?Aggrieved with the Judgment which is contained in pages 62 ? 130 of the record, the Appellant filed a Notice of Appeal on 9th March, 2018
3
which is contained in pages 131 -139 of the records. The notice of appeal contain six (6) grounds of appeal. The reliefs sought from the Court of Appeal are as follows:
(1) An Order allowing the appeal and setting aside the judgment of the lower Court delivered on the 13th day of December, 2017.
(2) An Order discharging and acquitting the Accused person.
The brief facts of the case is that Funmilola Adeyole (PW1) was robbed by three people between the hours of 2;00 am and 4:00 am on the 12th July, 2015 at about 2:00 am she noticed some thieves walking around in her compound. And at about 03:55 am one of the armed robbers walked into her room and pointed a torch and a locally made pistol at her, he ordered her to bring out all her valuables. They carted away the sum of N9,500:00 cash, One Samsung S4 Galaxy, one white Blackberry Q10 phone, wedding ring, Gold Chain with Pendant Wristwatches. He was with one other person while she saw the third person waiting in the compound. After they left she opened her kitchen door and one of her neighbours raised an alarm. They escaped through the back fence but the
