BAJO v. FRN
(2020)LCN/14495(CA)
In The Court Of Appeal
(JOS JUDICIAL DIVISION)
On Friday, July 17, 2020
CA/J/419/C/2018
Before Our Lordships:
Adzira Gana Mshelia Justice of the Court of Appeal
Tani Yusuf Hassan Justice of the Court of Appeal
Boloukuromo Moses Ugo Justice of the Court of Appeal
Between
DANJUMA BAJO APPELANT(S)
And
FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)
RATIO
PROVING THE GUILT OF AN ACCUSED PERSON
To find a person guilty of a criminal offence, a causal link showing his responsibility for the offence must be established and proved beyond reasonable doubt. That link, with all due respect, cannot be proved by the mere fact, as alleged by PW3, that appellant and his co-accused were seen at the scene of the said crimes (see Posu v. The State (2010) 193 LRCN 52 @ 67) or were seen running away from the riot scene. In fact there is nothing unusual in persons including even mere onlookers running away from a riot or crime scene once the police, let alone soldiers as in this case, arrive at the scene. That is also the point made by this Court in Dosunmu v. State (1988) 1 QLRN 189; (1986) 5 NWLR (PT 43) 658 @ 662-663 189 when it said that:
“Innocent persons sometimes run away from the scene of a crime as police enquiry is always regarded as harassment, hence most people try to avoid being caught at any scene of an accident and their action is not necessarily indicative of guilt: see Akinsanya v. The Queen (1961) W.R.N.L.R. page 222; Thimma v. State of Mysore (1971) 58 All India Report 1871 at 1877 paragraph 11; In Kishore v. State of Bihar (1971) 58 All India Report 1051 at 1058 the Supreme Court of India has this to say:
‘Mere absconding by itself does not necessarily lead to a firm conclusion of guilty mind. Even an innocent man may feel panicky and try to evade to arrest when wrongly suspected of a grave crime. Such is the instinct of self – preservation. The act of absconding is no doubt, relevant piece of evidence to be considered along with other evidence but its value always depends on the circumstances of each case. Normally the Courts are disinclined to attach much importance to the act of absconding treating it as a very small item in the evidence for sustaining conviction. It can scarcely be held as a determining link in completing the chain of circumstantial evidence which must admit of no other reasonable hypothesis than that of guilt of the accused.” PER UGO, J.C.A.
BOLOUKUROMO MOSES UGO, J.C.A. (Delivering the Leading Judgment): This appeal is from the judgment of the Federal High Court Jos Division of 12/12/2013 convicting appellant and his co-accused person, one John Dalyop, for conspiracy to cause breach of the peace acts of terrorism to wit arson and killing several people in Kuru Jos, contrary to Section 518(6) of the Criminal Code Act, Cap C.38, Laws of the Federation 2004 and Section 15(2) of the Economic and Financial Crimes Commission Act, respectively.
The charges read:
Count 1:
That you John Dalyop ‘m’, Danjuma Bajo ‘m’ on or about the 9th day of March 2010 in Kuru, Jos South Local Government Area of Plateau State within the jurisdiction of this Honourable Court did conspire amongst yourselves and agreed to cause a breach of the peace in Jos and environs and thereby committed an offence contrary to Section 518(6) of the Criminal Code Act, Cap C.38, Laws of the Federation 2004.
Count 2:
That you John Dalyop ‘m’, Danjuma Bajo ‘m’ on or about the 9th day of March 2010 in Kuru, Jos South Local Government Area of Plateau State within the
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jurisdiction of this Honourable Court did commit several acts of terrorism to wit arson and killing several people in Kuru, Jos, contrary to Section 15(2) of the Economic and Financial Crimes Commission Act, 2004.
The prosecution’s case, which it anchored principally on the evidence of its third witness, Captain Bernard Mohammed Zakari (PW3) of the Nigerian Army, is that on the 9th of March 2010 he (PW3) received a phone call from his soldiers stationed opposite Police College Jos informing him that some Fulanis had shot a Berom man to death and had taken refuge in the Police College; that Berom youths then mobilized, insisting that the police must release the Fulani men to them to kill. He said he then went to the Police College and evacuated the Fulani men to his Headquarters. Later on, he received another call from another set of soldiers who informed him that a vehicle was being set ablaze at HBC Road to NIPSS Jos. He said he and his men rushed to the place and saw appellant and his co-accused person running into the community nearby so they ran ahead of them and arrested them and took them back to the point where a vehicle was burning.
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Appellant, he said, was arrested with a dagger. On their way, they saw the corpse of a man who had a cut on his head and was half burnt who they suspected was the driver of the burning vehicle. He took the corpse, appellant and his co-accused together with the weapons recovered from them, which he described as spear-like dagger, recovered from appellant and wooden clubs recovered from his co-accused, and handed them over to the Police at CID office.
When cross-examined, this witness said:
“My soldiers who called about the burning vehicle did not tell me who set the vehicle ablaze. This is because he was about 200 metres from the burning vehicle. It was after arresting the accused persons on our way back that we saw the corpse.”
The other prosecution witnesses were (1) the Investigation Police Officer (PW2) that was assigned by the Police to investigate the case on receipt of the accused persons, corpse and the weapons from the Army Captain. P.W.2 obtained statements from appellant and his co-accused person. Both men pleaded their innocence in their statements.
The other witness of the prosecution is P.W.1 (the father-in-law
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of the burnt driver) who only came to know about the matter when the police recovered a telephone handset from the body of the deceased, saw his name there and called him to come and identify his son-in-law, the deceased. The said deceased was identified by P.W.1 as Mohammadu Bashir.
Appellant and his co-accused defended themselves and denied complicity in the crimes. He admitted that he was arrested by soldiers, but denied that he was arrested with his co-accused person as claimed by PW3. He also denied being arrested with weapons and or being arrested near a car set ablaze or running away from it when he was arrested. He said he was at a drinking joint near his house at Dakyen drinking a local brew called Burukutu and was outside the joint easing himself when he was arrested by the soldiers. After his arrest, he said, he was taken to Police Station and tortured by the police who then brought out knives and asked him to identify them and admit being their owner. He denied making a statement to police and admitting therein that the dagger belonged to him.
I must observe that there was uncontroverted evidence at the trial to the effect that the
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prosecution sent for forensic analysis the weapons allegedly recovered from the accused persons, but failed to tender the result of the analysis at the trial, a point the defence made an issue of and submitted that that result was vital to the prosecution’s case, that the prosecution did not tender it because it would have been unfavourable to it if tendered and the Court should invoke the provisions of Section 167(d) of the Evidence Act to so presume.
In its judgment after receiving addresses of counsel, the trial judge reasoned that the prosecution proved its charges against appellant and his co-accused person beyond reasonable doubt and convicted them accordingly.
Incidentally, this Court has since 12th January 2018 upheld the appeal of appellant’s co-accused person, John Dalyop, and quashed his conviction and sentence. That was in Appeal No. CA/J/115/2014:JOHN DALYOP v. THE FEDERAL REPUBLIC OF NIGERIA.
In this appeal, appellant set out three issues for determination as follows:
1. Whether the learned trial judge was right in convicting the appellant based on conjectures and speculations.
2. Whether the lack of
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proper identification of the deceased is immaterial in the establishment of the appellant’s guilt.
3. Whether the judgment was unreasonable.
The thrust of the argument of Dr. Elachi for appellant on issue 1 is that none of the three witnesses of the prosecution witnessed the conspiracy, arson and killing let alone link appellant with them; that their evidence was at best hearsay. He submitted that the evidence of even P.W.3 was based on suspicion and speculation and on appellant’s alleged presence at the scene of the crime. Calling in aid in Posu v. State (2010) LRCN 193 52 @ 67, counsel submitted that mere presence at the scene of crime without more does not amount to participation in a crime. He submitted that it is not enough to merely say that a man was killed and a vehicle set ablaze, the two acts must be directly traceable to the accused person, which he argued neither PW2 nor PW3 was able to do with their evidence. Circumstantial evidence to ground conviction must be positive, direct and unequivocal which was not the case with the evidence of the prosecution witnesses against appellant, he argued. Counsel
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submitted that there were also contradictions in the evidence of the prosecution witnesses regarding the identity of the deceased and the particular accused person from who the weapons were recovered; he said whereas PW2 testified that the deceased was one Husseini Hassan, PW1 said he was Mohammed Bashir. As regards the weapons, he pointed out that whereas PW2 (I.P.O.) said they were recovered from appellant, P.W.3 stated that it was recovered from his now acquitted co-accused person. It is the duty of the prosecution to explain these inconsistencies and having failed to do it, the trial Court ought to have discharged and acquitted appellant. Learned counsel then reproduced appellant’s testimony in his defence denying complicity in the crimes and submitted that he was not contradicted so the lower Court ought to have believed him, for which counsel cited Okoebor v. Police Council (2003) 12 NWLR (PT 838) 444. Learned counsel then brought up the fact that even though the weapons alleged recovered from the appellant and his co-accused were sent for forensic analysis by the prosecution, it never tendered the result so the presumption in Section 167(d) of the Evidence Act
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that the result would have been unfavourable to the prosecution if it was produced by it hence it should be invoked.
Counsel concluded his arguments on this issue by drawing our attention to the fact that appellant’s co-accused person John Dalyop who was charged on exactly the same evidence as appellant has since been acquitted by this Court on appeal so the same verdict should be returned for appellant.
On issue 2, counsel again argued that the prosecution did not prove that the act of appellant caused the death of the deceased who was not even identified, according to counsel so the lower Court was wrong to find him guilty of it.
On issue 3, appellant’s counsel complained that the trial judge did not give reasons for her judgment convicting appellant so its judgment was perverse and amounts to miscarriage of justice.
The State who framed four not dissimilar issues first conceded, as it must, that it was its duty to prove its case beyond reasonable doubt to secure conviction, but quickly added that proof beyond reasonable doubt does not mean proof by absolute certainty. It then drew our attention to the evidence of P.W.3 that he saw
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appellant and his co-accused running into a nearby community and that this evidence was not objected to nor discountenanced by the lower Court.
On the contradictions in its case identified by the appellant, the prosecution argued that appellant did not show that they were material.
Regarding appellant’s submission that the deceased was not identified, it submitted that the deceased’s father-in-law PW1 properly identified him as his son-in-law and that was sufficient identification.
It submitted that the lower Court carefully evaluated the evidence and an appellate Court is not expected to interfere in such circumstances, especially as appellant has not shown the evidence that was not properly evaluate and how it affected the judgment.
While conceding that the PW3 actually admitted that he did not see appellant set the car ablaze, the State submitted that from the circumstances of the case there was a riot involving a lot of persons and wondered why appellant was the only person picked. That, it submitted is a question only appellant could answer. It finally urged us to dismiss the appeal and affirm the judgment of the lower
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Court.
I think the only live issue in this appeal is whether the lower Court was right in its decision that the prosecution proved its two charges of conspiracy and terrorism against appellant beyond reasonable doubt and so merited the verdict of guilt the Court entered for appellant.
Now the law is settled beyond per adventure that criminal allegations must be proved beyond reasonable doubt and any doubt in the case must be resolved in favour of the accused person and result in his acquittal. Was that threshold reached in the evidence the prosecution presented against the appellant before the trial Court and the Court correct in its decision convicting him as charged? It does not appear to me that it was.
Here is a case where the only evidence against the appellant and his co-accused person who has since been acquitted by this Court is that there was a riot in Jos, that a Fulani man allegedly killed a Berom man and there was reprisal attack where one Mohammed Bashir was alleged killed and his car burnt and soldiers led by P.W.3 were called in, and that upon getting to the scene where the killing took place, appellant and his co-accused upon
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seeing the soldiers tried to run into a nearby village but was overtaken by the soldiers and arrested by them and a dagger and wooden clubs allegedly recovered from them. The soldiers then handed them over to the Police. That is all the evidence upon which appellant and his co-accused were charged and convicted. Now, even if one were to discountenance appellant’s completely different version of the circumstances of his arrest and claim of innocence of the crimes he was charged with, it is clear that the case of the prosecution was based purely on the fact that appellant and his co-accused tried to run away when the soldiers arrived in their vehicle. That is unfortunately a speculation and suspicion-based prosecution which has no place in our criminal justice administration system, just as it was stated by the apex Court (Ayoola, J.S.C.) in Ahmed v. State (2001) 18 NWLR (PT 746) 622 at p.650 that:
“Our criminal justice system loses its essential requirement of proof by evidence beyond reasonable doubt if persons accused of crime are convicted on mere suspicion or on mere speculation, however intelligent that may be, notwithstanding the
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inadequacy of evidence. Whatever the reason for the inadequacy of evidence may be is immaterial to the duty of the Court not to convict an accused of an offence not proved by evidence.” (Italics mine)
To find a person guilty of a criminal offence, a causal link showing his responsibility for the offence must be established and proved beyond reasonable doubt. That link, with all due respect, cannot be proved by the mere fact, as alleged by PW3, that appellant and his co-accused were seen at the scene of the said crimes (see Posu v. The State (2010) 193 LRCN 52 @ 67) or were seen running away from the riot scene. In fact there is nothing unusual in persons including even mere onlookers running away from a riot or crime scene once the police, let alone soldiers as in this case, arrive at the scene. That is also the point made by this Court in Dosunmu v. State (1988) 1 QLRN 189; (1986) 5 NWLR (PT 43) 658 @ 662-663 189 when it said that:
“Innocent persons sometimes run away from the scene of a crime as police enquiry is always regarded as harassment, hence most people try to avoid being caught at any scene of an accident and their action is not
12
necessarily indicative of guilt: see Akinsanya v. The Queen (1961) W.R.N.L.R. page 222; Thimma v. State of Mysore (1971) 58 All India Report 1871 at 1877 paragraph 11; In Kishore v. State of Bihar (1971) 58 All India Report 1051 at 1058 the Supreme Court of India has this to say:
‘Mere absconding by itself does not necessarily lead to a firm conclusion of guilty mind. Even an innocent man may feel panicky and try to evade to arrest when wrongly suspected of a grave crime. Such is the instinct of self – preservation. The act of absconding is no doubt, relevant piece of evidence to be considered along with other evidence but its value always depends on the circumstances of each case. Normally the Courts are disinclined to attach much importance to the act of absconding treating it as a very small item in the evidence for sustaining conviction. It can scarcely be held as a determining link in completing the chain of circumstantial evidence which must admit of no other reasonable hypothesis than that of guilt of the accused.”
It is the same point that was made in The Queen v. Akinsanya & Anor (1961) W.R.N.L.R. 222 when
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Oyemade, J., citing Wills on Circumstantial Evidence, p.140, said:
“Mr. Justice Abbot on a trial for murder where evidence was given of flight, observed in his charge to the jury, that a person, however conscious of innocence, might not have the courage to stand trial; but might, although innocent, think it necessary to consult his safety by flight.”
Circumstantial evidence to ground a conviction must be positive, direct and to no other conclusion than the guilt of the appellant: see Adeniji v. State (2001) FWLR (PT 57) 109. That is not the case here.
And by the way, why did the prosecution not tender the result of its forensic analysis of the weapons it claims to have carried out? The lower Court in answer to that argument said the said weapons, which appellant and his co-accused in any case denied, were tendered and they were actually weapons so that suffices. I am afraid it got it wrong: for the issue is whether the analysis proved that the said weapons were used for the offences as alleged. That was not proved even when it was not disputed that the said forensic analysis was available. In such circumstances the presumption of
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Section 167(d) of the Evidence Act on effect of withholding evidence, that such evidence was not in favour of the prosecution hence it was not produced, should have been invoked.
In conclusion, I resolve in favour of the appellant the sole issue I formulated. I hold that the prosecution did not prove it charges beyond reasonable doubt against him and the lower Court was wrong in convicting him; consequently, this appeal is allowed and appellant’s conviction for the two charges of conspiracy and terrorism are here quashed and set aside and appellant discharged and acquitted of both charges.
ADZIRA GANA MSHELIA, J.C.A.: I read before now the Judgment of my learned brother Ugo, J.C.A just delivered. I entirely agree with the reasoning and conclusion arrived thereat. My learned brother had adequately considered the issues raised for determination by the Appellant and rightly resolved same in favour of the Appellant. The learned trial Judge failed to properly evaluate the evidence adduced before him. I agree that the case against the Appellant was not proved beyond reasonable doubt. I too allow the appeal and the Appellant’s conviction for the two charges
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of conspiracy and terrorism are quashed and set aside. In its place, Appellant is discharged and acquitted of both charges.
TANI YUSUF HASSAN, J.C.A.: I had the privilege of reading before now, the lead judgment just delivered by my learned brother, BOLOUKUROMO MOSES UGO, JCA. I agree with the reasoning and conclusion reached in the lead judgment, discharging and acquitting the accused of charges against him.
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Appearances:
Dr. Agada Elachi For Appellant(s)
Mrs. H.P. Ashasim (Federal Ministry of Justice) For Respondent(s)
