DOSUMU v. STATE (2022)

DOSUMU v. STATE

(2022)LCN/16382(CA)

In The Court Of Appeal

(ADO-EKITI JUDICIAL DIVISION)

On Friday, February 04, 2022

CA/EK/23C/2021

Before Our Lordships:

Theresa Ngolika Orji-Abadua Justice of the Court of Appeal

Ibrahim Ali Andenyangtso Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Between

AYODELE DOSUMU APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO:

POSITION OF LAW ON BURDEN OF PROOF OF THE PROSECUTION

The standard of proof needed is beyond reasonable doubt, which means that the prosecution must present direct, credible, compelling and sufficient evidence to establish all the ingredients of the offences alleged and that evidence led must point irresistibly to the Appellant as the person that committed the two offences. Of course, the prosecution is not required to prove the ingredients of the offences with scientific certainty, but the evidence presented must be such of high degree of probability. It must also be reiterated that the burden of proof is static on the prosecution and never shifts to the accused because the accused person must be presumed to be innocent of the allegations against him until the prosecution proves otherwise. See Section 36 of the Constitution of Nigeria, 1999 as amended and the cases of DAWAI VS. STATE (2018) 15 NWLR (PT. 1613) 499 (SC), FRN VS. ODUAH (2020) 12 NWLR (PT. 1737) 16 (SC), ADEPOJU VS. STATE (2018) 15 NWLR (PT. 1641) 103 (SC), OKOH VS. STATE (2014) 8 NWLR (PT. 1410) 502 (SC) and DANLADI VS. STATE (2019) 16 NWLR (PT. 1618) 342 (CA). BALKISU BELLO ALIYU, J.C.A.

POSITION OF LAW TO PROVE THE OFFENCE OF STEALING

In order to prove the offence of stealing, the prosecution must call evidence to establish that the accused person stole the six kegs of diesel which is capable of being stolen by taking it away fraudulently with the intention of permanently depriving the Water Corporation of its use and converted it to the use of the accused or to the use of another person. See AYENI VS. STATE (2016) 12 NWLR (PT. 1525) 51 (SC) and SHODIYA VS. STATE (1992) 3 NWLR (PT. 230) 457 (CA). BALKISU BELLO ALIYU, J.C.A.

POSITION OF LAW ON THE LIABILITY OF EACH ACCUSED PERSON IN A JOINT CRIMINAL TRIAL

The extent of the liability of each person, the extent of his or her intention and knowledge in the commission of the crime must be proved, otherwise, that accused must be acquitted. Each of the accused in a joint criminal trial must be held liable only to the extent of his or her knowledge or intention. This means that the trial Judge was duty bound to evaluate the evidence led in a joint criminal trial against each and every accused person separately as directed by the Apex Court while giving guidance to trial Courts on evaluation of evidence in joint trial in the case of STATE VS. AZEEZ (2008) 14 NWLR (PT. 1108) 493 (SC), per I. T. MUHAMMAD, JSC (now CJN) at pages 584, B-D thus:
Where there are more than one accused person, the trial Court should consider the evidence against each of the accused persons separately following this procedure; (a)-firstly, the Court must identify the nature and quantum of evidence against each accused person; (b)-secondly, it must determine whether such evidence having regards to its source was legally receivable against each of the accused persons; (c) – thirdly, it must determine whether or not evidence receivable are credible; (d)-fourthly, it must determine whether the evidence was sufficient and of character that can be relied upon to justify the pronouncement of guilty verdict on the accused person. BALKISU BELLO ALIYU, J.C.A.

BALKISU BELLO ALIYU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of Ekiti State High Court sitting at Ado-Ekiti delivered on the 18th December 2020 in respect of charge No: HAD/39C/2018 by which the Appellant and two others were convicted of the offences of conspiracy and stealing contrary to Sections 516 and 390 of the Criminal Code Law, Cap. C16, Laws of Ondo State, 2012. The Appellant and his co-defendants were alleged to, on or about the 29th March 2017 at Ajilosun, Ado-Ekiti, conspired to commit the offence of conspiracy and stealing of kegs of diesel fuel, property of the Ekiti State Water Works Corporation from its premises. The information containing the allegations against the Appellant is located in pages 1-2 of the record of proceedings. Upon arraignment, the Appellant pleaded not guilty to the two counts and the matter proceeded to trial.

The prosecution called two witnesses and tendered the extra-judicial statement of the Appellant and the kegs of diesel the prosecution said were stolen by the Appellant and his co-defendants. Appellant also testified in his defence denying the allegations against him.

At the conclusion of the hearing evidence, counsel on both sides filed and adopted their final written addresses summing up their respective cases. The learned trial Judge delivered the Court’s judgment and convicted the Appellant of the offences of conspiracy and stealing and sentenced him to seven years imprisonment for each of the two offences to run concurrently.

Aggrieved with his conviction and sentence, the Appellant appealed to this Court against the judgment through his notice of appeal filed on the 13th January, 2021 wherein he relied on six (6) grounds of appeal to pray this Court for the following orders:
a) An order allowing the appeal
b) An order setting aside the judgment of the lower Court
c) An order entering judgment discharging and acquitting the Appellant
d) And for such further order or orders as this Honourable Court may deem fit to make in the circumstances.

The appeal having been entered, the Appellant proceeded to file his brief of argument, settled by T. KOLAWOLE ESQ. and filed on the 25th March, 2021. The learned counsel raised three (3) issues for determination of the appeal from the six grounds of appeal thus:
1) Whether the offences of conspiracy and stealing were established or proved against the Appellant to warrant his conviction.
2) Whether the trial Court considered the defences of the Appellant and properly evaluated the evidence in this case.
3) Whether the Appellant is entitled to an option of fine assuming without conceding that he is guilty of the offences charged.

In opposing the appeal, the Respondent filed its brief of argument settled by GBEMIGA ADARAMOLA ESQ. (DC & CL, MOJ, Ado Ekiti), on 2nd October, 2021 but deemed properly filed and served on the 14th October 2021. The learned counsel distilled a sole issue for the determination of this appeal as:
Whether or not the Respondent proved the case of conspiracy and stealing against the Appellant among other Defendants before the lower Court beyond reasonable doubt.

The Appellant’s reply brief was filed on the 22nd October, 2021. The appeal came up for hearing on the 11th November, 2021 and each party adopted his brief of argument. In the determination of this appeal, I will adopt the Appellant’s three issues as my guide because he is the owner of this appeal.

APPELLANT’S SUBMISSIONS
In arguing issue one, learned counsel for the Appellant submitted that every crime has its ingredients that must be proved by the prosecution beyond reasonable doubt against the defendant before the trial Court. He defined the offence of conspiracy as an agreement to do an unlawful act or a lawful act by unlawful means. That the prosecution in order to prove this offence against the Appellant needed to prove that the Appellant agreed with the others to commit the offence of stealing but it failed to do so because there was no such agreement between the Appellant and the other co-defendants or any person at all. He referred to Exhibit ‘C’ and the oral testimony of Appellant contained in pages 41 and 42 of the record of proceedings.

He submitted that the evidence of prosecution witnesses who testified as PW1 and PW2 did not show any iota of conspiracy between the Appellant and any of the defendants. Rather, the learned trial Judge was carried away by mere suspicion because there was no direct or indirect evidence from which the trial Court could have inferred conspiracy against the Appellant. He argued that the operative word in the crime of conspiracy is the agreement or meeting of the mind to commit an unlawful act. He referred us to the case of GBADAMOSI VS. STATE (1991) 5 NWLR (PT. 192) 182 for support.

Learned Appellant’s counsel also pointed out that the evidence of PW2 in page 27 of the record stating that the 1st Defendant stated that the six kegs of diesel he sold to the 3rd defendant was with the knowledge of the Appellant amounted to evidence of a co-accused person and it is a travesty of justice for the learned trial Judge to believe that evidence since the Appellant did not adopt it. He relied on the case of OZAKI & ANOR VS. STATE (1990) LPELR-2888 where the Supreme Court held that it is an error in law for a trial Court to convict an accused on the statement of a co-accused to the police. He urged the Court to discharge and acquit the Appellant of the offence of conspiracy because it was not proved against him.

With regards to the offence of stealing, the Appellant submitted that the learned trial Judge relied on the extra-judicial statement of his (Appellant’s) co-accused, suspicion and speculation to convict him of the offence, while ignoring Exhibit ‘C’, which contents are simple and direct. Further contended that the learned trial Judge failed to give the Appellant the benefit of the doubt raised in Exhibit ‘C’, rather his lordship “lumped the accused persons together majorly in his pronouncement of guilty while the elements that constitute the offences were not specifically proved against the appellant.” That the confessional statements of the Appellant’s co-defendants were muddled up with the Appellant’s extra-judicial statement, Exhibit ‘C’ which was consistent with his evidence in Court. It was also contended that the learned trial Judge refused to appraise Exhibit ‘C’ and the oral evidence of the Appellant, but only acted on suspicion to convict him.

He further argued that Exhibit ‘C’ (statement of the Appellant) was not a confessional statement and therefore, the learned trial Judge was wrong to hold in page 78 of the record that he found the evidence that the defendants gave in Court was in contrast with their confessional statements to be a volte face. That knowing the co-defendants was not a crime and there was no nexus shown between the Appellant and the stolen kegs of diesel by the prosecution. Learned Counsel quoted the holding of the trial Court in page 79 where his lordship held that the Appellant did not challenge his participation nor controvert the evidence of 1st Defendant that implicated him, and submitted that the learned trial Judge misdirected himself in this holding. He argued that His Lordship speculated and based his finding on the suspicion that led to the arrest of the Appellant. Secondly, the oral evidence of the 1st defendant did not implicate the Appellant and the learned trial Judge did not categorically state the involvement or participation of the Appellant in the offence of stealing the diesel.

With regards to the confession of 1st Defendant in Exhibit ‘B’, the Appellant submitted relying on the case of NSOFOR VS. STATE (2008) 6 ACLR 398 at 412, that a man’s confession is only evidence against him and not his accomplice. The Appellant never adopted the 1st Defendant’s confession as his own, and if this confession ‘Exhibit ‘B’ is excluded from the evidence against the Appellant, the offences of conspiracy and stealing were not established against him. He urged the Court to discharge and acquit the Appellant.

On the Appellant’s issue two, learned counsel submitted that the learned trial Judge did not consider the defence of the Appellant because he failed to evaluate the oral evidence of the Appellant contained in pages 41-42 of the record of appeal. He referred us to the case of OLAYINKA VS. THE STATE (2008) 6 ACLR 194 and submitted that the learned trial Judge was duty bound to consider the defence of the Appellant no matter how improbable or stupid it might me. He quoted Exhibit ‘B’, the confessional statement of the 1st Defendant and submitted that it was not properly evaluated by the trial Court before relying on it to convict the Appellant. He argued that the decision of the trial Court was therefore perverse because it was wrong and completely outside the evidence before the Court, and we are urged upon to so hold and resolve this issue in favor of the Appellant.

On his issue three (3), the learned counsel submitted that by the combined provisions of Sections 516 and 390 of the Criminal Code Law of Ekiti State, the Appellant could not be sentenced for more than three years imprisonment for the offence of stealing. Learned counsel further relied on the decisions of this Court in AYENI VS. STATE (2011) LPELR-4380 (CA) and USHIE VS. THE STATE (2012) LPELR 9705 (CA) in support and to submit that even where an option of fine is not provided for in the law creating the offence, a trial Court may, in its discretion impose a fine in lieu of imprisonment.

Learned counsel also drew our attention to the fact that the Appellant had no record of crime before this case and no allocutus was recorded for him in the record of proceedings of he lower Court. Moreover, the trial Judge did not state the factors that influenced his sentence decision. He urged the Court to resolve Appellant’s issue three in his favor, set aside the judgment of the trial Court and discharge and acquit him of the offences of conspiracy and stealing.

RESPONDENT’S SUBMISSIONS
In response to the argument of the Appellant under issue one, the Respondent’s learned counsel submitted that contrary to the argument of the Appellant, the Respondent had proved the ingredients of the offences of conspiracy and stealing against him. He referred to the evidence of the two prosecution witnesses and the exhibits tendered before the trial Court and submitted that for the offence of conspiracy, it was not necessary that the defendants were caught together committing an offence, but the meeting of their minds is enough to sustain the offence of conspiracy as was held in the case of ADEJUYIGBE VS. FRN (2017) LPELR-43801 (CA). He submitted that the facts of this case show that the Appellant and 1st Defendant stole the diesel oil and sold it to the 3rd Defendant and the three of them were all caught in the web or chain of the stealing by conspiracy.

With regards to the offence of stealing, learned counsel quoted Section 290(a) of the Criminal Code Law of Ekiti State under which the Appellant was charged and he submitted that two cardinal ingredients of the offence are that the thing stolen is capable of being stolen and that the Appellant and other defendants had the intention to permanently deprive the owner of same. Moreover, that the Appellant confessed to the commission of the offences in Exhibit ‘C’, which along with the evidence of PW1 and PW2 together with the kegs of diesel that were stolen, established the ingredients of the offence. He argued that these pieces of evidence could not be overlooked or glossed over, relying on the cases of OGIDI VS. STATE (2001) 15 NWLR (PT. 737) 745 for support and in urging the Court to affirm the decision of the trial Court and hold that the Respondent proved the case against the Appellant.

APPELLANT’S REPLY BRIEF
By way of reply on points of law, the Appellant’s learned counsel quoted and relied on Section 135(1) and (2) of the Evidence Act, 2011 to submit that irrespective of the number of persons standing trial or charged with a criminal offence, the liability of each individual must be established beyond reasonable doubt in order to ground a conviction. He further argued that the evidence of the prosecution was not supposed to be lumped together in arriving at a decision to convict. He insisted that in this case, the guilt of the Appellant was never proved beyond reasonable doubt and his conviction has occasioned a miscarriage of justice.

He further argued that the Respondent’s learned counsel in arguing that they have proved the charges against the Appellant beyond reasonable doubt did not state the particular evidence called to establish the guilt of the Appellant of the offences.

Learned counsel further pointed out that there was no evidence of eyewitness to the commission of the offences charged, and the Appellant’s extra-judicial statement (Exhibit ‘C’) was not a confessional statement. As such, the Appellant did not give evidence that amounted to an afterthought as wrongly argued by the Respondent and held by the trial Court. He finally submitted that all the argument of the Respondent in this appeal cannot justify the conviction of the Appellant by the trial Court. The Court was urged to set it aside and discharge the Appellant.

RESOLUTION
ISSUES ONE
Whether the offences of conspiracy and stealing were established against the Appellant to warrant his conviction.

It is the duty of the prosecution who alleged that the Appellant committed these crimes to prove them beyond reasonable doubt as required by Section 135 (1) and (2) of the Evidence Act.

The Appellant was charged with the offences of conspiracy to commit offence of stealing and stealing six kegs of diesel oil belonging to the Ekiti State Water Corporation, contrary to Sections 516 and 390 of the Criminal Code of Ekiti State.

The complaint of the Appellant under this issue is that there was no evidence linking him with the commission of the offence of stealing the 6 kegs of diesel belonging to the Ekiti State water corporation as alleged by the Respondent/prosecution. That the evidence of the 3rd accused being his co-accused implicating him, which the trial Court used to convict him of the offence was “a travesty and aberration” of justice because the Appellant never adopted the extra-judicial statement of his co-accused that implicated him. To resolve this complaint, I examined the record of appeal to see the evidence led before the trial Court.

The prosecution called two witnesses who testified as PW1 and PW2. The testimony of PW1, Olajide Rachael, a staff of the Ekiti State Water corporation, the owner of the diesel that the Appellant was accused of conspiring with his co-accused to steal and stole. Her testimony is contained in pages 19-23 of the record of appeal. She identified the Appellant as a worker of the Water Corporation and her subordinate. She stated that on the 29th March, 2017, she collected 600 liters of diesel and discharged 325 liters into the generating set of the corporation and then, discharged the remaining 325 litres in a drum. At close of work, she instructed the staff on afternoon duty to inform those on night duty to pump water into the reservoir at night.

The Appellant was on night duty along with 1st Defendant (Oluwasuyi Phillips) on that date. With regards to the stealing of the diesel, she stated in pages 20-21 that:
“Subsequently, I was invited by my General Manager Engineer Agbeyo that some culprits had been arrested at the back fence to our office. They were arrested for stealing diesel. On the next day, when I arrived at the office, I went to the generator house to check the diesel. The drum containing 275 liters was found there. The level of diesel met in the generator set was low. I enquired of the number of hours that the generator was utilized. I was told that the generator was used in pumping water for 3 hours. I cross-checked their record. I found that they used 55 litres per hour. Oluwasuyi Philips and Ayodele Dosumu were on duty. My general manager and my good self went to the police station to make statement. The police officer showed to me 6 kegs of diesel recovered from the culprits, that is the 3rd defendant. When I assumed duty in July 2015, I surveyed the entire area of the Ado Water Works. I observed that the environment was porous. I complained about the porosity of the environment to the management. There was no fencing around the premises.”

I note and observe that the evidence of this officer does not support or prove that any diesel was stolen from the Corporation because the diesel she discharged into the generator was low and this was explained by the fact that it was used for three hours at night. Secondly, 275 liters she discharged in the drum “was found there” i.e. was not missing, at least she did not say it was missing. She only heard from her general manager that some culprits were arrested and on reaching the police station she was shown 6 kegs of diesel. That is all. The only connection to the Appellant to this case or to the stealing of diesel as far as her evidence is concerned is that he was on night duty along with the 3rd defendant.

The evidence of PW2, (Sgt. Akinfolarin Festus), the investigating police officer is contained in pages 25 to 32 of the record of proceedings. He was not the arresting officer, but was called to the Governor’s office at about 8:40 p.m. on the 29th March, 2017 and was informed that two suspects were arrested with 6 kegs of stolen diesel from the Water works area. The then Governor of Ekiti State Ayodele Fayose handed over to him two suspects and the 6 kegs of diesel. The suspects that were handed over to him were Olayiwola the taxi driver and Tope (3rd defendant). Again, it is important to point out the Appellant was not among these suspects handed over to the witness by the Governor. PW2 continued his evidence that he took the suspects to the police division office where he interviewed them. The taxi driver informed him that Tope, i.e. the 3rd defendant called him to “render service as cab driver” to convey diesel for him. It was while conveying the diesel for Tope that the taxi developed fault and the youths of the area arrested them for stealing diesel. Then the 3rd Defendant made a confessional statement to the police. In page 26 of the record, PW2 stated that:
Tope confessed that it was Suyi who sold kegs of diesel to him… Suyi made confessional statement that he sold 40 liters of diesel to Tope about a year ago.

The said confessional statement of Suyi referred to by PW1 was admitted in evidence as exhibit ‘B’ and copied in pages 11 to 12 of the record of appeal. In this statement ‘Suyi’ is Oluwasuyi Philips, the 1st Defendant in the charge, and he stated inter alia in this statement that:
“… I was employed into the Ekiti State Water Corporation in the year 2010 as a craftsman electrical. I am working in the place since that time. I was known (sic) one Tope Oyewumi ‘m’ since about seven years ago and he was selling fish in front of our office but sometimes in the month of November 2017, I steal (sic) 40 liters of keg (sic) from my place of my work and sell (sic) it to the said Tope Oyewumi ‘m’ at the rate of N2000 each covering N4000 for … without the consent of any other person from my place of work. Then later one Dosumu ‘m’ was aware of it and we share the N4000 into two making N2000 for each person. Since then I did not do such a thing again until yesterday being 30th of March, 2017 that I was inside the quarters of water works where I’m living (at) and one of our director (sic) named O. I. Daramola ‘m’ came to the place at about 0950hrs saying he was call (sic) at Governor office that someone was arrested at back of our place of work with some keg (sic) of diesel and the said person named Tope Oyewunmi ‘m’ and he mentioned my name that I am the one that handover those kegs of diesel to him in order to sell it which I don’t know anything about the matter but been (sic) that I have sold something like that to him before that is why he made mention my name (sic) and I was arrested today being 30th March 2017 at about 0900hrs together with other three people and my boss went and checked the diesel in the compound which is still there before we came to … police station. That is all about my statement.” (Underlining supplied for emphasis)

The above-reproduced extra-judicial statement of the co-defendant of the Appellant was the only evidence that implicated the Appellant. But in that statement, it clear that the 1st defendant only admitted to stealing 40liters of diesel in November 2017, which he sold for N4000 and he claimed to share this money with the Appellant whom he said was aware of it. He claimed that the Appellant got N2000 from the sale of that 40 litres of diesel he stole in November 2017. In effect, the 1st Defendant in this exhibit actually denied stealing the diesel that was arrested with the taxi driver and the 3rd Defendant (Tope), which is the subject of this charge, and this is crucial and must be noted.

In any event, this is a joint criminal trial in which the Appellant was charged along with two others. The prosecution is duty bound to establish the ingredients of the offences charged against each accused person separately. That is to say, that prosecution must prove by credible evidence the part played by each accused person that constituted the offence jointly charged. In other words, the fact that an accused is jointly charged with others for a crime, does not mean the evidence must also be joined. No. The extent of the liability of each person, the extent of his or her intention and knowledge in the commission of the crime must be proved, otherwise, that accused must be acquitted. Each of the accused in a joint criminal trial must be held liable only to the extent of his or her knowledge or intention. This means that the trial Judge was duty bound to evaluate the evidence led in a joint criminal trial against each and every accused person separately as directed by the Apex Court while giving guidance to trial Courts on evaluation of evidence in joint trial in the case of STATE VS. AZEEZ (2008) 14 NWLR (PT. 1108) 493 (SC), per I. T. MUHAMMAD, JSC (now CJN) at pages 584, B-D thus:
Where there are more than one accused person, the trial Court should consider the evidence against each of the accused persons separately following this procedure; (a)-firstly, the Court must identify the nature and quantum of evidence against each accused person; (b)-secondly, it must determine whether such evidence having regards to its source was legally receivable against each of the accused persons; (c) – thirdly, it must determine whether or not evidence receivable are credible; (d)-fourthly, it must determine whether the evidence was sufficient and of character that can be relied upon to justify the pronouncement of guilty verdict on the accused person.

Most unfortunately in this case, the learned trial Judge failed to evaluate the evidence of the prosecution against the appellant specifically. This is clear from page 79 of the record where the learned trial Judge held that:
Dosumu Ayodele, the 2nd defendant, who was also employed by the Ekiti State Water Corporation, who claimed that he was on night duty on the fateful day did not challenge his participation, nor controverted the evidence that implicated him by his involvement as stated by the 1stdefendant. He was given share of N2000 from the proceed of sale of diesel oil.
The above finding has no support from the evidence led before the trial Court for the following reasons:
1. The extra-judicial statement of the 1st Defendant did not implicate the Appellant on the theft of the diesel the subject of this charge. There was no evidence that the diesel in the six kegs arrested with the 3rd defendant was sold for N4000.
2. The 1st Defendant in his extra-judicial statement only admitted to stealing of diesel, which quantity he stated as 40liters and sold for N4000 and that the Appellant knew about that incidence not this one. See his statement reproduced supra.
3. In his evidence before the Court, contained in page 39-41, the 1st defendant retracted his extra-judicial statement and did not testify that he sold 40liters of diesel at N4000 and shared the money with the Appellant.
4. This was contained in Exhibit ‘B’ his statement to the police, which is different and distinct from a-co-accused evidence during trial.

But most importantly, this is criminal trial and the Appellant being an accused has no obligation to “challenge” or “controvert” the evidence of the prosecution against him. His plea of not guilty to the offences charged placed the duty of establishing the offences against him on the shoulders of the prosecution. That burden does never shift to him to controvert or challenge as was erroneously held by the learned trial Judge supra.

Further, the trial Judge’s reliance on the extra-judicial statement of the 1st defendant being co-accused of the Appellant as “evidence that implicated” him was a total misdirection of law. This is because there is a distinction between an accused person’s statement to the police and his oral evidence in Court in relation to his co-accused. It is embedded in Section 29(4) of the Evidence Act 2011 that a confession of a co-accused is no evidence against an accused person that did not adopt it by words or conduct. There was no evidence on the record of this appeal that showed that Exhibit ‘B’ (tagged confessional statement of 1st Defendant) was made in the presence of the Appellant or that the Appellant adopted it by words or by conduct. See the case of NWODO VS. STATE (2019) 3 NWLR (PT. 1659) 228 at 240 parag. F-H where My Lord AMINA AUGIE, JSC explained thus: Before I go into the merit or otherwise of the Appellant’s grouse in this case, I must clarify the reference made to the extra-judicial statement of the first defendant to the police (Exhibits B-B1) by the Court of Appeal as if there is no distinction between the statement and his oral testimony, in relation to the appellant. Let me explain. The position of the law is that statement of the co-accused to the police is different and distinguishable from his oral evidence in chief. The statement remains his statement and not his evidence, and it is binding on him only… However, where evidence incriminating an accused comes from a co-accused, the Court is at liberty to rely on it, provided the co-accused, who gave such incriminating evidence, was tried along with that accused…

The learned trial Judge’s decision to convict the Appellant of the offences conspiracy and stealing only on the basis of his mention in the alleged confessional statement of his co-accused was wrong in law. There was no evidence led that linked the Appellant with the offences charged outside the alleged confessional statement of co-accused. I therefore uphold the argument of the learned Appellant’s counsel and return a negative answer to issue one and resolve issue in favour of the Appellant.

ISSUE TWO
Whether the trial Court considered the defences of the Appellant and properly evaluated the evidence in this case.

Having resolved issue one in favour of the Appellant, I adopt all I have stated and hold that it is only when the prosecution discharged the burden of proof placed on it by law that the defence put up by the Appellant as the accused can be considered in order to find if any doubt is raised in the case of the prosecution that can be resolved in his favour. This is provided for in Section 135(3) of the Evidence Act 2011. In this case, I found in my resolution of issue one supra, that there was no credible evidence led by the Respondent that linked the Appellant to the offences of conspiracy and theft outside the so called confessional statement of his co-accused. I adopt all that I stated in my resolution of issue one to also resolve issue 2 in favour of the Appellant.

ISSUE THREE
Whether the Appellant is entitled to an option of fine assuming without conceding that he is guilty of the offences charged.

The resolution of issues 1 and 2 supra in favour of the appellant is to the effect that the Respondent failed to prove the offences of conspiracy to steal and stealing of diesel with which the Appellant was charged. Therefore the resolution of this issue has become unnecessary because it is only when a crime is proved as required by law the question of sentence can arise.

In the final analysis, having resolved issues 1 and 2 in favour of the Appellant, I find this appeal has merit and I allow it. I set aside the judgment of the trial Court, delivered on the 18th December, 2020 in respect of Charge NO: HAD/39C/2018 by which the Appellant was convicted and sentenced of the offences of conspiracy to commit the offence of stealing and stealing, contrary to Sections 516 and 390 of the Criminal Code Law of Ekiti State 2012. In their place, I dismiss the charge for failure of prosecution to prove the offences beyond reasonable doubt against the Appellant. I acquit and discharge the Appellant of the two offences charged. He shall be released immediately.

THERESA NGOLIKA ORJI-ABADUA, J.C.A.: I agree.

IBRAHIM ALI ANDENYANFTSO, J.C.A.: Having read in draft the judgment just delivered by my Lord and brother, B. B. Aliyu, JCA and I have no hesitation in agreeing with his reasoning and conclusion that this appeal has merit and is hereby allowed by me. The learned trial judge transferred the burden of proof to the Appellant in this case which is against the law. The Appellant was presumed innocent until the contrary was proved.

Having so held, I abide by the consequential orders therein contained in the lead judgment.

Appearances:

T. KOLAWOLE, ESQ. For Appellant(s)

GBEMIGA ADARAMOLA, ESQ., DIRECTOR OF COMMERCIAL & CORPORATE LAW, MOJ EKITI STATE For Respondent(s)