COMMISSIONER OF POLICE V. DONATUS UDE
(2010)LCN/4170(CA)
In The Court of Appeal of Nigeria
On Thursday, the 23rd day of December, 2010
CA/E/200/2007
RATIO
BURDEN OF PROOF: WHETHER THE PROSECUTION HAS A DUTY TO PROVE ANY ALLEGATION OF A CRIME AGAINST AN ACCUSED PERSON BEYOND REASONABLE DOUBT
The law has placed the duty on the prosecution to prove any allegation of a crime against an accused person beyond reasonable doubt. Section 138 of the evidence Act provides:- 138.(1) If the commission of a crime by a party to any proceedings is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt. (2) The burden of proving that any person has been guilty of a crime or wrongful act, is subject to the provisions of section 141 of the Act on the person who asserts it, whether the commission of such act as or is not directly in issue in the action. (3) If the prosecution proved the commission of crime beyond reasonable doubt, the burden of proving reasonable doubt, is shifted on the accused’. See Solola v. State (2005)1 NWLR pt. 937 page 460 at 485 – 496. Agbo v. State (2006) 6 NWLR pt. 977 page 545 at 584. PER ABDU ABOKI, J.C.A.
EFFECT OF SUSPICION: WHETHER SUSPICION CAN AMOUNT TO PRIMA FACIE EVIDENCE
It is trite that suspicion however well placed does not amount to prima facie evidence . See Abacha v. The State (2002) 7 SCNJ page 35. Oliwovoriole, SAN v. FRN & Others 13 NSCQR page 1. In Adeniyi v. Governing Council Yabatech (1993) 6 NWLR pt, 300 page 426 at 432. The Supreme Court held per Karibi Whyte JSC:- ‘Suspicion, however strong cannot support a conducive inference of guilt It is still wavering accusing finger of suspicion, guilt can only be accepted when the wavering finger stops wavering and stand stringent and erect pointing unwaveringly at the accused. Also In Clark v. The State (1986) 4 NWLR pt. 35 page 381 at 394. Kolawole JCA said:- ‘Suspicion may be many and sometimes grave, yet they will amount each a suspicion and no further. Combining them do not elevate them beyond the realm of suspicion. They remain suspicion, See Adio & Anor. v. The State (1986) 2 NWLR pt. 24 page 381 at 395. Onah v. The State (1985) 3 NWLR pt, 12 page 236 at 244. Ben Okafor v. Police (1965) ALL NLR 89 at 90 – 91. In the instant case, the Respondent was linked with the stealing of the microscopes upon a mere suspicion of PW1, the Acting Chief Security Officer of UNTH Enugu. In Sule Ahmed v. The State 1 NSCQR 273 at 290. Ayoola JSC said of the suspicion thus:- ‘Our criminal justice system loses its essential requirement of proof by evidence beyond reasonable doubt if persons accused of crime are connected on mere suspicion or on mere speculation, however intelligent that may be, notwithstanding the inadequacy of evidence. Whatever the reason for the inadequacy of evidence or absence of essential evidence may be is immaterial to the duty of the court not to convict an accused of an offence not proved by evidence. See also Dr. Ola Onaguruwa v. The State (1993) 7 NWLR pt. 303 page 49 at 96. Anazodo v. Audu (1999) 4 NWLR pt. 600 page 530. Oteri v. Okorodudu & Anor. (1970) 1 All NLR 194 at 200 – 201. Igboji Abieke & Anor. v. The State (1975) 9-11 SC 97 at 104. The State v. Ogbubunjo (2001) 13 WRNL. Okafor v. State (2006) 4 NWLR pt. 969 page 1. PER ABDU ABOKI, J.C.A.
POSITION OF THE LAW ON THE DUTY PLACED ON THE COURT AND ON THE PROSECUTION WHERE AN ACCUSED DENIES THE VOLUNTARINESS OF HIS CONFESSIONAL STATEMENT
There is also the fact that the purported confession of the Respondent was denied as having been made voluntarily. The trial court failed to test the voluntariness of the said confessional statement which it admitted in evidence as exhibit 5 despite protest from his counsel. The trial court ought to have conducted a trial within trial on the admissibility of the said statement. Where an accused person denies voluntariness of his statement, the onus is on the prosecution to prove that it was free and voluntary. In the instant case, there was irregularity in admitting exhibit 5 as confessional statement by the trial court. The failure of the trial court to conduct trial within trial rendered the statement inadmissible and it ought to be expunged. See Emeka v. State (supra). PER ABDU ABOKI, J.C.A.
CONFESSIONAL STATEMENT: FACTORS THAT WILL BE CONSIDERED IN DETERMINING WHETHER OR NOT A CONFESSIONAL STATEMENT WAS VOLUNTARILY MADE
In determining whether or not a confessional statement is voluntary, the trial court should consider whether:- (a) ‘There is anything outside the confession to show that it is true. (b) It is corroborated. (c) The facts stated in it are true in so far as can be tested. (d) Accused’s confession is possible. (e) The confession is consistent with other facts which have been ascertained. PER ABDU ABOKI, J.C.A.
CONFESSIONAL STATEMENT: DUTY IMPOSED ON A COURT WHERE A CONFESSIONAL STATEMENT WAS NOT TAKEN TO A SUPERIOR POLICE OFFICER TO ENABLE THE ACCUSED DENY OR ADMIT MAKING THE STATEMENT
Although a confessional statement need not be taken to a superior police officer to enable the accused deny or admit making the statement. It is an acceptable good practice approved by the courts to take a confessional statement to a superior police officer for his endorsement so that the accused will deny or admit making the statement. However where confessional statement is not taken to a superior police officer for endorsement, the court would treat such a confessional statement with considerable caution. See Solola v. State (supra). Queen v. Sopele (1957) 2 FSC 24. PER ABDU ABOKI, J.C.A.
JUSTICES:
ABDU ABOKI Justice of The Court of Appeal of Nigeria
AYOBODE O. LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
Between
COMMISSIONER OF POLICE – Appellant(s)
AND
DONATUS UDE – Respondent(s)
ABDU ABOKI, J.C.A.(Delivering the Leading Judgment): This is an appeal against the decision of Enugu State High Court Appellate Division sitting at Enugu delivered by B.E. Agbata J. on 11/12/2003.
The brief facts of the case is as follows:-
‘The respondent who was a staff of the University of Nigeria Teaching Hospital (UNTH) Enugu, reported to the Chief security officer on the morning of the 26th July, 1994 that the laboratory store of the hospital has been broken into and 26 microscopes stolen after the security men on duty were held and beaten up. The matter was reported to the police who came later to inspect the premises. After investigation, the respondent who was the 1st accused was arrested along with others. The store is located on a storey building. There were no marks on the wall to indicate that someone climbed through the wall and the door was not tampered with. The burglary proof on the window were neatly removed and packed carefully inside the store, the Respondent had the key to the store and there was a counter-locking system for additional security. In order to unlock the door to the store where the laboratory equipment were stored, a security man on duty must first unblock the burglary proof before the store keeper can gain access to use his key to open the store.
The 1st accused/Respondent was not caught in the act nor was he identified by the security men who were held and beaten up.
The 1st accused/Respondent and other co-accused persons were arraigned before a magistrate court on a six count charge. He was specifically charged with :
(1) The conspiracy to commit a felony, to wit store breaking and under section 495(a) of the criminal code cap 36 vol. 1 laws of Anambra State 1985 as applicable to Enugu State.
(2) breaking and entering the laboratory store of the UNTH Enugu with intent to commit a felony punishable section 380 (a) of the criminal code.
(3) breaking out of the laboratory store of UNTH under section 380(b) of the criminal code.
(4) stealing 10 microscopes valued N45.000 (Forty-Five Thousand Naira) an offence punishable under section 353 (12) of the criminal code.
The charge against the 2nd and 6th accused persons were later dropped at instance of the DPP and their names consequently struck out from the charge. At the magistrate court, the 1st accused/Respondent and four other accused persons pleaded not guilty to the charges. After hearing the case for the prosecution and of the defence, the trial magistrate found the 1st accused,/Respondent guilty and sentenced him. Some of the other accused persons were discharged and acquitted on all counts.
The 1st accused/Respondent dissatisfied with the decision of the magistrate court appealed to the Enugu State High Court sitting in its appellate capacity.
After hearing the submissions on behalf of the 1st Accused/Appellant as well that of the DPP, the court, gave its verdict on 11th December, 2003, setting aside the judgment of the trial magistrate court, it discharged and acquitted 1st accused. The prosecution dissatisfied with the decision of the High Court appealed to this court after obtaining leave to appeal on 4th July, 2005.
The Notice of Appeal which contained five grounds of Appeal was dated and filed 19th April, 2005.
The Appellants brief of argument dated 6th July, 2009 was filed on 8th July, 2009. They also adopted and relied on same as the Appellant’s argument in this Appeal.
Learned Senior counsel for the Appellant urged the court to set aside the decision of the High Court and to restore the judgment of the trial magistrate court which convicted and sentenced the Respondent.
The Respondent’s brief of argument dated 2/7/09 was filed on 22/12/09. Learned counsel adopted it and said they were relying on same as the Respondent argument in this Appeal.
The Appellant distilled three issues for determination from the five grounds of Appeal contained in the Notice of Appeal at page 136 – 140 of the Record of Appeal. The issues distilled for determination reads thus:-
1. Whether the charge of stealing was established or proved against the Respondent beyond reasonable doubt and whether the High Court was right in discharging and acquitting the Respondent.
2. Whether the learned judge of the High Court was tight in his failure to consider the principles of recent possession before discharging and acquitting the Respondent.
3. Whether the learned judge of the High Court was right when he conjectured a case for the Respondent on the basis of which he discharged and acquitted him’
4. Whether there were material, inconsistencies or contradictions in the prosecutions case lo create the alleged doubt upon which the Appellate High Court discharged and acquitted the Respondent.
The Appellant’s counsel said issues 1, 2 and 3 raised from ground 1, 3, 4 and 5 of the Notice of Appeal will be argued together, on the part of the Respondent, two issues were formulated for the determination in this Appeal as follows:- 1. Whether the charge of stealing was established against the respondent beyond all reasonable doubt.
2. Whether having regard to the material inconsistencies in the evidence of the prosecution witnesses, the High Court on appeal was right to have discharged and acquitted the Respondent. The Appellant’s issues 1 and 4 are identical to the Respondents issues 1 and 2. The Appellant’s issues 2 and 3 can be accommodated in issue 1 and are therefore subsumed and collapsed into issue 1.
The following two issues are identified and remembered for the determination of this Appeal.
1. Whether the charge of stealing was established or proven against the Respondent beyond reasonable doubt and whether the High Court was right in discharging and acquitting the Respondent.
2. Whether there were material inconsistencies or contradictions in the prosecution’s case to create the alleged doubt upon which the Appellate high court discharged and acquitted the Respondent.
ISSUE 1:
It has been submitted on behalf of the Appellant that by the provisions of section 138 of the Evidence Act, the burden of proof is on the prosecution to prove its case beyond reasonable doubt. The court was referred to the cases of Solola v. State (2005) All FWLR pt. 269 page 1751 at 1771. Agbo v. State (2006) All FWLR pt. 309 page 1380 at 1417.
Learned senior counsel for the Appellant argued that in discharging the burden of proof placed on the prosecution, it called three witnesses’ PW1, PW2 and PW3.
PW1, the acting Head of Security of UNTH Enugu testified that on the 24th of April, 1994, the UNTH main store was broken into after the security men on duty were held and beaten up, and that the incident was later reported at the Central Police Station by one Edwin Eze.
The matter was later formally reported to the police and that during their investigation, the Respondent and others were arrested. PW1 said the store was located on a storey building and that there were no marks on the wall to indicate that some one climbed on the walls from the ground to access the floor on which the store was located. The witness said that the burglary proof on the window was cut from the inside and bent inside the store to create space and that two louvers blade removed were neatly packed inside the store. He maintained that the Respondent was the person having the keys to the door of the laboratory.
Under cross-examination, PW1 stated that the Respondent reported the incident to him three hours after he came to work. He said that the door leading to the store was not tampered with and that the breaking of the window from his observation was done from inside the store. PW1 admitted that the security men that worked in the night did not report to him” that any office or store was broken into neither was there any report from the security men that worked in the morning shift. He stated that there was a counter-locking System at the store in question and that the security men must unlock the burglary proof before the store keeper can get in.
PW1 confirmed that it was possible for one person to carry the nine microscopes at a time. He maintained that there may be conspiracy between the Respondent and the security men, and that it was possible for some one to enter the store from outside. He however said that the absence of mark on the wall suggested that such was not the case in this incident, PW2 Inspector Benedeth Agbaji said a case of store breaking and stealing was reported through a petition to the Commissioner of Police Enugu State by PW1 and that he investigated the case. He stated that he visited the scene of the crime and that from their observation the cutting of the window protector was done from outside and one protector was bent inside the store. He maintained that there was no prints on the wall but that there were prints on the burglary proof that was cut. He confirmed that nine microscopes were missing from the store. He however admitted that he has not seen the finger prints report.
PW3 A.S.P. John Ike Mba said he took over the case file from Inspector Agbaji (PW2) and his team. He said that in the cause of their investigation, they succeeded in recovering four of the missing microscopes at one Mr. Onyeka’s shed at onitsha. He said Mr. onyeka told them that one Nicholas Odinka sold the microscopes to him. And that when Nicholas odinka was arrested, he confessed that he got the microscopes from the Respondent, a staff of UNTH. PW3 said that the Respondent was later arrested and he made a confessional statement admitting the offence.
He maintained that exhibit 5, the statement of the Respondent shown to him was not a confessional statement even though the Respondent admitted the offence. PW3 denied torturing the Respondent in any form. Learned Senior counsel for the Appellant submitted that from the testimonies of the prosecution witnesses, it was very clear that the prosecution had made out a very strong prima facie case’ pointing unequivocally to the guilt of the Respondent. Learned senior counsel maintained that the evidence of the said witnesses both in chief and under cross-examination all go to establish that the Respondent who had access to the laboratory store with the active or possessive collusion of the security men gained entrance into the store and after removing the microscopes, exited the store through the door which he securely locked. Learned senior counsel submitted that the cutting of the burglary proof and removal of some louver blades of the window were all diversionary acts to divert attention from the actual access of the thieves and create the impression of a break-in through the window.
Learned senior counsel argued that the Respondent and the other accused persons in their respective testimonies offered no evidence in rebuttal of the facts established by the prosecution.
A.J. Offiah SAN maintained that the Respondent gave no other credible evidence in rebuttal of the copious evidence which unequivocally implicated him to the theft of the microscopes.
Learned senior counsel submitted that the decision of the trial magistrate who took the evidence of the accused persons and observed the demeanor of the respective witnesses for the prosecution and the defence believed the prosecution witnesses, and returned a correct verdict of conviction against the 1st accused.
A.J. Offiah SAN contended that the judgment of the appellate judge of the High Court did not at all consider or take into account the evidence of resent Possession of the stolen goods and the direct link established between the possession and the Respondent. Learned senior counsel argued that relevant and compelling evidence which the Respondent did not rebut ought to have weighed heavily in the mind of the learned judge of the High Court in deciding the guilt or otherwise of the Respondent and that the learned judge ought not to have set aside the decision of the trial magistrate or acquitted the Respondent.
Learned senior counsel submitted that the prosecution did in fact prove and establish the charge of stealing against the Respondent beyond reasonable doubt before the trial magistrate court as required by law. It was submitted that the appellate high court was in grave error when it departed
from the case of the parties and the evidence before it on record and embarked on a voyage of conjecture of non existence possibilities from which it created the perceived doubt which it purported to resolve in favour of the Respondent.
A.J. Offiah SAN submitted further that for a charge of stealing to be made out the following ingredients must be proved beyond reasonable doubt and that this burden was discharged by the prosecution at the trial court. They are:-
(a) The ownership of the property stolen.
(b) That the property stolen is capable of being stolen.
(c) The fraudulent taking or fraudulent conversion of the property by the accused.
Learned senior counsel cited the case of Ohianngo v State (2002) 2 NWLR pt. 750 page 225.
Learned senior counsel submitted that from the evidence of pw1, pW2 and pW3, the prosecution has discharged the onus placed on it beyond reasonable doubt by proving the ingredients of the offence i.e. that there were microscopes stolen, and that the microscopes belong to UNTH Enugu, that the said microscopes are capable of being stolen. Learned senior counsel argued that the circumstantial evidence and the confessional statements show clearly that the Respondent stole the microscopes. The court was referred to Supreme Court decision in Onwudiwe v. F.R.N. (2006) All FWLR pt. 319 page 774 at 810 where the elements of stealing under section 383 (f) and (2) of the criminal code were outlined. Learned senior counsel submitted that the provisions of section 383 (2) of the criminal code Act, laws of the Federation 1990 are similar to the provisions of section 353 of the criminal code volume I , laws of Anambra State of Nigeria 1986, as applicable to Enugu State, under which section the Respondent was convicted at the trial magistrate court.
A.J. Offiah SAN submitted that the prosecution having proved the elements of stealing in section 383 (2)(a) and (b) of the Criminal Code of Anambra State as applicable to Enugu State, it has discharged the onus of proof beyond reasonable doubt. Learned senior counsel urged the court to so hold.
Learned senior counsel submitted that it is a settled principle of law that there are three ways of proving a crime. They are:-
(a) By an eye witness (b) By confessional statement , and (c) By circumstantial evidence.
The court was referred to the case of Emeka v. State (2001) 14 NWLR pt. 734 page 666.
A.J. Offiah SAN argued that the evidence against the Respondent was circumstantial and submitted that it is trite law that for a circumstantial evidence to support a conviction like in this case, the evidence must be cogent, compelling and direct, and must lead to one conclusion which is the guilt of the accused (Respondent). The court was referred to the cases of Idris v. state (2005) All FWLR pt. 275 page 599 at 605. Nasiru v. State (1999) 2 NWLR pt. 589 page 87. Duvwode v. state (2001) 2 ACCR 524.
It is submitted that from cogent, compelling and direct circumstantial evidence of PW1, PW2 and PW3 the only conclusion or inference is that the Respondent stole the microscopes, having been identified by one Nicholas Odinko as the person who sold the microscopes to him.
Learned senior counsel submitted that it is trite law that where a witness in his statement to the police states that he does not know the name of the suspect but will easily identify him when he sees him and the witness on seeing the suspect spontaneously and without any prompting by any person goes on to identify the person he saw on the faithful day, such a suspect will be held to have committed the offence.
The court was referred to the cases of Igbi v. State (1998) 11 NWLR pt. 574 page 429.
Adamu v. State (1991) NWLR pt. 187 page 530. Adeyemi v. State (1991) NWLR pt. 170 page 679.
Learned senior counsel maintained that in this appeal, the identification of the Respondent by Nicholas Odinka was spontaneous, and that there was therefore no need to have a “parade” before an identification which was spontaneous can be accepted and relied upon by a trial court.
A.J. Offiah SAN urged the court to set aside the judgment of the Appellate High Court and uphold the trial court’s judgment which convicted the Respondent.
It is the submission of learned counsel for the Respondent that it is trite that the onus of proof in criminal trials is on the prosecution which must prove its case against the accused person beyond reasonable doubt. The court was referred to the case of Solola v. State (supra). Learned counsel argued that there is no principle in law which places any burden on an accused person to prove his innocence since by the constitution of Federal Republic of Nigeria 1999 his innocence is always presumed until his guilt is proved.
This principle learned counsel said is enshrined in section 36(5) of the 1999 constitution and section 138 of the Evidence Act Laws of the Federation of Nigeria 2004.
Learned counsel for the Respondent recast the evidence of PW1, PW2 and PW3 as stated by learned senior counsel for the Appellant and reproduced in this judgment.
C.O. Ike (Mrs) for the Respondent however submitted that the only way in which the burden of proof placed on the prosecution in the matter can be discharged is to eliminate every ounce of debt in the mind of the court.
Learned counsel argued that because if there is any lingering doubt in the mind of the court, it will be resolved in favour of the accused, for it is better that a thousand guilty ones be set free than one innocent man receive an unjust conviction. C.O. Ike (Mrs) submitted that it is a fundamental principle of criminal law that once there is doubt about the guilt of the accused, such doubt should be resolved in favour of the accused. Hence such doubt is resolved in favour of the accused, the court has no choice but to discharge and acquit the accused for the offence charged. Learned counsel referred the court to the case of Namsoh v. State (1993) 5 NWLR pt. 293 page 129. Learned counsel for the Respondent contended that a doubt in the mind of the court means that the case against the accused has not been proved beyond reasonable doubt. C.O. Ike (Mrs) maintained that PW1 had admitted under cross-examination that there is counter-locking system to the stores where the stolen microscopes were kept and that before anyone can gain access to them, the security men must come to unlock the burglary proof before the store keeper (i.e. the Respondent) can use the store keys in his possession to go in. PW2 also testified that there were security men on duty 24 hours. PW2 stated that there were no print on the wall but that there were finger prints on the burglary proof of the window which was cut. The door to the store was not tampered with.
Learned counsel for the Respondent invited the court to page 12 line 22 of the Record of proceedings where PW1 said:- ‘At a stage, I told the police that I was suspecting him (…. the Respondent). It “beats my imagination why the 1st accused (now Respondent) waited 3 hours after before he reported the matter to me.
Secondly, the door leading to the store was not tampered with and the first accused was having the keys”.
C.O. Ike (Mrs) for the Respondent submitted that the testimony of PW1 cannot be accorded any weight since it is obvious from his own words (beats my imagination) that his imagination has taken a flight of fancy when he could not produce any solid evidence to link the accused with the crime. Learned counsel for the Respondent argued that the standard of proof beyond reasonable doubt does not admit of tactful possibilities. He maintained that PW1 has only succeeded in infesting the mind of the court with suspicion. C.O. Ike (Mrs) referred the court to the case of Adeniyi v. G.N. council Yabatech (1993) 6 NWLR pt. 300 page 426 at 437.
Learned counsel for the Respondent submitted that since there was no solid evidence linking the respondent to the crime apart from suspicion, the High Court on appeal was right in discharging and acquitting the Respondent. Learned counsel cited the case of Clark v. The State.
Learned counsel contended that there were finger prints on the burglary proof which was cut but that the police did not deem it fit to produce the result of the finger print analysis because it would have exonerated the Respondent.
Learned counsel for the Respondent submitted that the Respondent who testified on his own behalf as DW1 stated that after he reported to work on the day of the incident, he reported the burglary to PW1. He further stated that his finger prints were taken by one cpl. Emmanuel Agbo before he was granted bail and that it is curious that the investigating authorities who were in possession of finger prints on the burglary proof and had taken the finger prints of the suspect (the Respondent) were in a good position to settle the matter with finality by producing the result of finger print analysis and comparison but choose to conveniently ignore it because it would have given a lie to their case. Learned counsel for the Respondent submitted that evidence which could be and is not produced would if produced be unfavourable to the person who withholds it. Learned counsel cited section 149(d) of the Evidence Act Cap E 14 Laws of the Federation of Nigeria 2004.
Learned counsel for the Respondent submitted that the prosecution did not bother to produce the result of the finger prints analysis because it would have exonerated the Respondent. Learned counsel urge the court to so hold.
Learned counsel for the Respondent stated that PW3 ASP John Ike Mba who took over the investigation of the theft testified that when he got information that some of the stolen microscopes were found at the bridge head market Onitsha, he proceeded to Onitsha where he succeeded in recovering four of the microscopes at one Onyeka’s shed at Onitsha. He arrested Onyeka who confessed that Nicholas Odinka (formerly six accused) brought the stolen microscopes to him. When Nicholas Odinka was arrested, he volunteered a statement to PW3 that he got the microscopes from Mr. Ude (the Respondent).
Learned counsel for the Respondent submitted that it is curious how vital witness like Nicholas Odinka whose testimony would have nailed the Respondent was not produced. The Respondent in his testimony as DW1 had stated in his evidence in chief that he did not know Nicholas Odinka before he came to court.
The prosecution instead withdrew the charges against Nicholas Odinka who was the 5th accused in court 5 before the actual hearing commenced on the pretext that Nicholas Odinka was being detained for the more serious offences of armed Robbery at Ebonyi State.
Learned counsel for the Respondent contended that the prosecution in the appeal alluded to the purported guilt of the accused based on the confessional statement of the Respondent. The alleged confessional statement of the Respondent was tendered as Exhibit 5, the defence objected to the admission of Exhibit 5 on grounds of duress and torture. The accused denied conspiracy with anybody, he denied stealing any microscope from UNTH Enugu and also denied supplying Nicholas Odinka with the stolen items. DWI in his evidence in chief explained that they operated a counter-locking system. On the confessional statement Exhibit 5. DW1 testified that when Nicholas Odinka gave his own version of how he came about the microscopes in his possession ie. that he saw the Respondent parading Ogbete main market with the items which he was trying to sell and he bought them from the Respondent, the police immediately embarked on torturing him and that because the torture was too much the Respondent admitted the offence even though he never met Nicholas Odinka before.
Learned counsel for the Respondent submitted that a confessional statement made under duress is inadmissible. Learned counsel submitted that it is a cardinal principle of law practice and procedure that the test for admissibility of a statement made to the police by an accused person is the voluntariness of such statement.
Learned counsel referred the court to the cases of Osukwe v. A.G. Bendel State (1991) I NWLR pt. 167 page 315 at 317.  Nwachukwu v. State (2002) 2 NWLR pt. 721 page 366 at 372.
C.O. Ike (Mrs) for the Respondent argued that since the Respondent denied the statement at the first opportunity he had in his evidence-in-chief, the onus of proof is on the prosecution to establish that the statement was neither made under duress nor indeed by threat and that the prosecution fails to do so.
Learned counsel for the Respondent contended that where the voluntariness of a statement is denied by the maker or his counsel at the material time, a trial court within a trial should be conducted by the trial court. Learned counsel argued that the contention on the admissibility of the statement of an accused person ought to have been resolved before the close of the prosecutions case. He referred the court to the case of Osakwe v. A.G. Bendel State (supra). Learned counsel for the Respondent submitted that since the trial court failed to conduct a “trial within a trial to establish the voluntariness of the accused statement to the police, the trial court should not have admitted it in evidence. Learned counsel for the Respondent urged the court to so hold.
Learned counsel insisted that the prosecution has the duty to place before the court all available relevant evidence. Learned counsel argued that, it does not mean that a whole host of witness must be called upon the same point. The court was referred to the case of Oduneye v. State (2001) 2 NWLR pt. 697 page 311 at 317.
C.O. Ike (Mrs) for the Respondent contended that in the instant case, Nicholas Odinko who is an indispensable witness with regard to the charge of theft was not called on the flimsy excuse that he was involved with a more serious charge of armed robbery. Learned counsel argued that seriousness in this matter is a relative term, especially where the future of the Respondent is at stake.
Learned counsel for the Respondent submitted therefore that the prosecution has failed to establish a vital link between the Respondent and Nicholas Odinko the man who allegedly bought the microscopes from the Respondent.
Learned counsel for the Respondent urge the court to hold that the charge against the Respondent was not proven and that the High Court in its appellate jurisdiction was right to have discharged and acquitted the Respondent.
At the trial magistrate Court, the Respondent who was the 1st accused was charged jointly with five other accused persons on diverse courts which included conspiracy and stealing.
At the conclusion of the hearing of the case of the prosecution and of the defence, the learned trial magistrate as can be gleaned from pages 79-90 of the Record of Appeal containing the judgment, the Respondent who was the 1st accused was only found guilty of the offence of – stealing microscopes and being a first offender who has no criminal record, the trial magistrate court sentenced him to pay a fine of N10,000.00 or imprisonment for four (4) years.
The charge upon which the Respondent as 1st accused was convicted and sentenced reads:-
‘COUNT IV: That you Donatus Ude, Friday Ogbonna, Sylvester Eze and Anthony Ani, on or about the 2nd day of July, 1994 at Enugu, in Enugu Magistrate District did steal ten microscopes valued at N45,000.00 (Forty-Five Thousand Naira) property of UNTH Enugu and thereby committed an offence punishable under section 353(12) of the criminal code, vol. 1, laws of Anambra State of Nigeria, 1986 as applicable in Enugu State of Nigeria’.
The provisions of section 353 of the criminal code of Anambra State vol. 1 Laws of Anambra State of Nigeria 1986 as applicable to Enugu State and under which section the Respondent was convicted and sentenced is similar to the provisions of section 383(2) of the Criminal Code Act, Law of the Federation 1990.
In Onwudiwe v. Federal Republic of Nigeria (2006) All FWLR pt. 774 at 810, the Supreme Court outline the elements of stealing as follows:-
In order to establish a charge of stealing against an accused person, the prosecution must prove the following ingredients of the offence.
1. That the thing stolen is capable of being stolen.
2. That the accused has the intention of permanently depriving the owner of the thing stolen.
3. That the accused was dishonest.
4. That the accused has unlawfully appropriated the thing stolen to his own use. See Onimisi Ukana (Alias Jaguda) v. Commissioner of Police Benue State (1995) 9 NWLR pt. 416 page 705 at 722.
In Michael Alake & Anor v. The State (1991) 7 NWLR pt. 205 page 567 at 59-t. Niki Tobi JCA(as he then was) said of the ingredients of the offence of stealing thus:-
‘For the offence of stealing to be proved, the thing alleged to have been stolen must be capable of being stolen. To constitute stealing, the taking must be fraudulent and with an intention to deprive the person his permanent ownership of the thing.
In a charge of stealing, proof that the goods stolen belong to some person is an essential ingredient of the offence and it is the duty of the prosecution to adduce that evidence. See Clark and Another v. The State (1986) 4 NWLR (pt. 35) 381. It was held by the Supreme Court in Babalolu and other v. The State (1989) 4 NWLR (pt, 115) SC 264 that the mens rea of stealing consist of an intention not only to take away the immovable property in question from the possession of the owner but also an intention to permanently deprive him of such property.
The burden of proof that a movable property is stolen is, like the burden in other offences, on the prosecution. See Yongo and Another v. Commissioner of Police (1990) 5 NWLR (part 148), 103’.
Under the criminal code, the following ingredients must be established before an accused can be said to have committed the offence of stealing. (i) dishonesty. (ii) appropriation. (iii) property belonging to another, and
(iv) the intention of permanently depriving the owner of it.
In the instant case, the evidence before the court was that nine (9) microscopes property of UNTH, Enugu were removed from its laboratory store on the 26th July, 1994 at Enugu, suspicion was pointed at the Respondent and others. There was no direct evidence against the Respondent. PW1 in his evidence-in-chief said that the Respondent was not caught in the act nor was he identified by the security men who were held and beaten up. The evidence against the Respondent was termed circumstantial.
I am of the opinion that it will be prudent to examine these allegations to establish whether the prosecution had at the magistrate court established the offence against the 1st accused.
The law has placed the duty on the prosecution to prove any allegation of a crime against an accused person beyond reasonable doubt. Section 138 of the evidence Act provides:-
138.(1) If the commission of a crime by a party to any proceedings is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.
(2) The burden of proving that any person has been guilty of a crime or wrongful act, is subject to the provisions of section 141 of the Act on the person who asserts it, whether the commission of such act as or is not directly in issue in the action.
(3) If the prosecution proved the commission of crime beyond reasonable doubt, the burden of proving reasonable doubt, is shifted on the accused’.
See Solola v. State (2005)1 NWLR pt. 937 page 460 at 485 -496.
Agbo v. State (2006) 6 NWLR pt. 977 page 545 at 584. It is the evidence of PW1 that the store from which the microscopes were removed was located on a storey building and that there was no marks on the wall indicating that somebody climbed on the walls from the ground to access the floor on which the store was located. He said that the burglary proof on the window was cut from the inside and bent inside the store to create space and that two louver blades removed were neatly packed inside the store. He said that the door leading to the store was not tampered with and that the breaking in from his observation was done from inside the store and not outside. PW1 fixed the offence on the Respondent because he was the one having the keys to the door of the laboratory.
He however admitted that there was a counter-locking system at the store in question and that the security men must unlock the burglary proof before the store keeper can get in. PW1 admitted that neither the security men that worked in the night nor those that worked in the morning shift reported to him that any office or store was broken into. PW1 then came up with the conspiracy theory between the Respondent and the security men. He however admitted that it was possible for some one to enter from the outside into the store but that there was absence of marks on the wall to suggest that such was the case.
However, the theory of PW1 that the breaking of the window was done from the inside was contradicted by the evidence of PW2 Inspector Benedict Agbaji who inherited the case. He said that from the observation of his team, the cutting of the window protector was done from outside and one protector was bent inside.
He said that although, there were no finger prints on the wall, there were however finger prints on the burglary proof which was cut. He concluded that he was convinced that the microscopes were passed through the door entrance.
PW2 however admitted that he had not seen the finger prints result.
There was no evidence from the prosecution that keys with the Respondent got to him unlawfully.
PW1 had admitted under cross-examination that before anyone can gain access to the store where the stolen microscopes were kept, the security men must come to unlock the burglary proof, and that there were security men on duty 24 hours.
PW1 identified the Respondent as a suspect and said at page 112 line 22 -29 of the Record of Appeal thus:-
‘I gave the police the facts available to me. At a stage, I told police that I was suspecting him (meaning the Respondent). It beat my imagination why the 1st accused waited till 3 hours after before he reported the matter to me. Secondly, the door leading to the store was not tampered with and the 1st accused was having the key. Thirdly, the breaking of the window from observation made was from inside the store and not from outside. I don’t know whether it is easier for him to open the store, take away the things and close it, We have security men on duty 24 hours’.
In the ordinary course of human behavior, what could be thought to beat the imagination of PW1 would have been why the security men who were responsible to him as their acting Head of Security of UNTH Enugu, who were held and beaten up and those on morning shifts all failed to inform him about the incident.
PW1 told the police that his reason for suspecting the Respondent was because he waited 3 hours after resuming for work before he made the report of the burglary. He also said that another reason for his suspicion is that the door leading to the store was not tampered with and that the Respondent was having the key.
PW2 said he was convinced that the microscopes were passed through the door entrance and that the person who removed the microscopes gained access through the door and had it securely locked again.
It has been submitted by learned counsel for the Appellant that the evidence of these witnesses both in Chief and under cross-examination all go to establish that the Respondent who had the keys to the laboratory store with the active or passive collusion of the security men gained entrance into the store and after removing the microscopes, exited the store through the door which he securely locked.
It seems very clear that the initial allegation against the 1st accused was based in suspicion. I have earlier said in this judgment that there was no direct or solid evidence linking the Respondent to the crime.
PW1 in order to cover up the lapses of the security men under his control whom he said were on duty 24 hours but could not arrest the person or persons who went into the laboratory store and stole nine microscopes, told the police that he was suspecting the Respondent. The police were so infested by the theory of suspicion planted in their mind by pw1 that they failed to undertake a thorough investigation to discover who actually went into the store and removed the microscopes. It is in evidence that the store in which the microscopes were kept had burglary proof which was usually locked by the security men whilst the main door was locked by the Respondent.
The security men must first unlock the burglary proof before the store keeper can gain access with the key. If the breaking in was done from the inside of the store and not from the outside, then the security men must have opened the burglary proof to allow the person who stole the microscopes go into the store. The first lead in the police investigation should have been the security men on duty in the night shift and those on morning duty.
There is no evidence that they were investigated by the police. PW1 admitted that the security men that worked in the night did not report to him or indicate any store breaking neither was there also any report from the security men on morning shift.
PW1 said that they discovered finger print on the burglary proof and they had also taken the finger print of the Respondent. A scientific analysis of both finger prints which could have produced the thief was not carried out, instead the police choose to point suspicion at the Respondent simply because he had a key to the store.
It is trite that suspicion however well placed does not amount to prima facie evidence . See Abacha v. The State (2002) 7 SCNJ page 35. Oliwovoriole, SAN v. FRN & Others 13 NSCQR page 1.
In Adeniyi v. Governing Council Yabatech (1993) 6 NWLR pt, 300 page 426 at 432.
The Supreme Court held per Karibi Whyte JSC:-
‘Suspicion, however strong cannot support a conducive inference of guilt It is still wavering accusing finger of suspicion, guilt can only be accepted when the wavering finger stops wavering and stand stringent and erect pointing unwaveringly at the accused.
Also In Clark v. The State (1986) 4 NWLR pt. 35 page 381 at 394.
Kolawole JCA said:-
‘Suspicion may be many and sometimes grave, yet they will amount each a suspicion and no further.
Combining them do not elevate them beyond the realm of suspicion. They remain suspicion, See Adio & Anor. v. The State (1986) 2 NWLR pt. 24 page 381 at 395. Onah v. The State (1985) 3 NWLR pt, 12 page 236 at 244.
Ben Okafor v. Police (1965) ALL NLR 89 at 90 – 91.
In the instant case, the Respondent was linked with the stealing of the microscopes upon a mere suspicion of PW1, the Acting Chief Security Officer of UNTH Enugu.
In Sule Ahmed v. The State 1 NSCQR 273 at 290. Ayoola JSC said of the suspicion thus:-
‘Our criminal justice system loses its essential requirement of proof by evidence beyond reasonable doubt if persons accused of crime are connected on mere suspicion or on mere speculation, however intelligent that may be, notwithstanding the inadequacy of evidence. Whatever the reason for the inadequacy of evidence or absence of essential evidence may be is immaterial to the duty of the court not to convict an accused of an offence not proved by evidence. See also Dr. Ola Onaguruwa v. The State (1993) 7 NWLR pt. 303 page 49 at 96. Anazodo v. Audu (1999) 4 NWLR pt. 600 page 530. Oteri v. Okorodudu & Anor. (1970) 1 All NLR 194 at 200 – 201. Igboji Abieke & Anor. v. The State (1975) 9-11 SC 97 at 104. The State v. Ogbubunjo (2001) 13 WRNL. Okafor v. State (2006) 4 NWLR pt. 969 page 1
A voluntary confession or confessional statement of an accused is deemed to be relevant and admissible against its maker and not against another. See Solola v. State (2005) 2 NWLR pt. 937 page 460 at 484. Durigo v. State (1992) 7 NWLR pt. 255 page 525. Ikemson v. state (1989) 7 NWLR pt. 110 page 455. Emeka v. State (2001) FWLR pt. 66 page 682. Ojegede v. State (1988) 1 NWLR pt. 71 page 414.
An exception to the rule is when an accused person is confronted with the confession of another co-accused that he participated in the commission of the offence, but he fails to deny the allegation either before or at the trial. In such circumstance, by the non denial of the commission of the offence he is deemed in law to have adopted by conduct the contents of the confessional statement of the other co-accused. See Oguga v. State (1990) 2 NWLR pt.134 page 539. Helwani and Gouch v. Commissioner of police (1946) 12. R. v. Falay (1949) 12 WACA 492.
There is also the fact that the purported confession of the Respondent was denied as having been made voluntarily.
The trial court failed to test the voluntariness of the said confessional statement which it admitted in evidence as exhibit 5 despite protest from his counsel.
The trial court ought to have conducted a trial within trial on the admissibility of the said statement. Where an accused person denies voluntariness of his statement, the onus is on the prosecution to prove that it was free and voluntary.
In the instant case, there was irregularity in admitting exhibit 5 as confessional statement by the trial court. The failure of the trial court to conduct trial within trial rendered the statement inadmissible and it ought to be expunged. See Emeka v. State (supra).
In determining whether or not a confessional statement is voluntary, the trial court should consider whether:-
(a) ‘There is anything outside the confession to show that it is true. (b) It is corroborated.
(c) The facts stated in it are true in so far as can be tested. (d) Accused’s confession is possible.
(e) The confession is consistent with other facts which have been ascertained.
Although a confessional statement need not be taken to a superior police officer to enable the accused deny or admit making the statement. It is an acceptable good practice approved by the courts to take a confessional statement to a superior police officer for his endorsement so that the accused will deny or admit making the statement. However where confessional statement is not taken to a superior police officer for endorsement, the court would treat such a confessional statement with considerable caution. See Solola v. State (supra). Queen v. Sopele (1957) 2 FSC 24.In the instant case, the purported confessional statement of the Respondent was not taken before a superior police officer for his endorsement to confirm whether he made the statement voluntarily.
The statement exhibit 5 should have been viewed by the trial magistrate with caution, moreso when the admissibility of the statement was objected to on the ground that it was not made voluntarily.
PW2 told the trial court that there was finger print on the burglary proof of the window which was cut.
The Respondent in his testimony said that his finger prints were taken by one cpl. Emmanuel Agbo pw3 before he was granted bail. It is unfortunate that the police who were in possession of both finger prints did not deem it necessary to conduct an analysis and comparison of the finger prints, which if they have done would have settled the matter with finality as to who removed those stolen microscopes from the store of the UNTH laboratory. In the instant case, the withholding of this important and vital piece of evidence by the police is fatal to the case of the prosecution.
Section 149 (d) of the evidence Act provides as follows:-
‘149. The court may presume the existence of any fact which it thinks likely to have happened regards being had to the common cause of material events, human conduct and public and private business in their relation to the facts of the particular case, and in particular the court may presume.
(a) ………..
(b) …………
(c) ………….
(d) that evidence which could be and is not produced would if produced, be unfavorable to the person who withheld it.
(e) ……….
I am of the opinion that the police either failed to conduct the analysis or withheld the result of the finger print analysis because it would have exonerated the Respondent if the analysis was conducted and the result produced is tendered in evidence. See Ajao v. Ademola (2005) NWLR pt. 13 page 638. Adediji v. Kolawole (2004) ALL FWLR pt. 214 page 91 at 108. Akinyemi v. State (1999) 6 NWLR pt. 607 page 449. Okunzha v. Anosu (1992) 7 SCNLR 243.
I am of the opinion that the non production of the report of the finger print analysis which is a vital evidence is fatal to the case of the prosecution in the instant case.
The case of the prosecution at the trial magistrate court was that one Nicholas Odinka alleged in his confessional statement to the police that the Respondent sold the stolen microscopes to him at Ogbete market. The Respondent denied the allegation in his evidence-in-chief before the court. The Respondent told the court that he only met Nicholas Odinka at the police station when he pointed at him. He insisted that he mentioned Nicholas Odinka’s name in his statement in compliance to instruction by police when he was being tortured.
The prosecution not only failed to make Nicholas Odinka available to testify before the trial court, but withdrew the charges against him as the 5th accused before the actual hearing of the case commenced on the pretext that he was being detained for a most serious offence of armed robbery at Ebonyi State.
In the instant case, by not producing Nicholas Odinka before the trial magistrate court to testify and be cross-examined by the Respondent or his counsel on the allegation that he sold the stolen microscopes to him it should be presumed under section 149(d) of the Evidence Act that his allegation was not true and that his evidence would not be favourable to the prosecution’s case if he had testified. See Maj. Amarachi v. Nig. Army (2003) 3 NWLR pt. 807 page 256. Omisade v. Queen (1964) 1 ALL NLR 233.
I have earlier said in this judgment that the allegation against the Respondent was based on suspicion. The trial magistrate erred when upon the challenge of Exhibit 5 by the Respondent it failed to subject the exhibit to the requisite tests to determine its voluntariness before admitting same in evidence. See Balure v, State (1994) 1 NWLR pt. 320 page 267. Mago Amuche v. Nig. Army (supra).
While it is not necessary for the prosecution to call every available evidence to prove its case, it has an obligation to call a particular witness whose evidence is material for the resolution of a vital point in issue. See Archbong v. State (2004) 1 NWLR pt. 853 page 488. Oguonzee v. State (1998) 5 NWLR pt. 551 page 521.
In the instant case, Ncholas Odinka who is an indispensable witness with regard to the charges of theft against the Respondent was not called.
The prosecution had failed to establish a vital link between the Respondent and Nicholas Odinka who alleged he bought the microscopes from the Respondent.
I am satisfied from all the evidence available from the printed Record of Appeal that the charge against the Respondent was not proved.
I hold that the Enugu State High Court, Enugu sitting in its appellate jurisdiction was right to have discharged the Respondent. The issue is resolved in favour of the Respondent.
Having resolved this first issue in favour of the Respondent, there will be no need to examine other issues presented for determination, which in my opinion are no longer relevant, to do otherwise will amount to an academic exercise, a luxury which courts are enjoined not to indulge in.
This appeal fails and it is hereby dismissed.
AYOBODE O. LOKULO-SODIPE, J.C.A: I have read the Judgment delivered by my learned brother, Abdu Aboki, JCA and I am in total agreement with his lordship’s reasoning and conclusions.
I adopt the Judgment as mine. Accordingly, I find the appeal to be lacking in merit and dismiss the same.
SAMUEL CHUKWUDUMEBI OSEJI, J.C.A.: I had the opportunity to read in draft the judgment just delivered by my learned Brother, ABDU ABOKI (JCA). I am satisfied with his reasoning and the conclusion he arrived at. I do not intend to add or subtract anything.
I therefore adopt the conclusion as mine. I also abide by all the orders made therein.
Appearances
Chief (Mrs) A.J. Offiah SAN with O.N. Onwusi (Mrs) For Appellant
AND
C.O. Ike (Mrs) For Respondent
