EMMANUEL v. STATE (2022)

EMMANUEL v. STATE

(2022)LCN/16476(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Thursday, March 24, 2022

CA/IB/114C/2019

Before Our Lordships:

Folasade Ayodeji Ojo Justice of the Court of Appeal

Muhammad Ibrahim Sirajo Justice of the Court of Appeal

Abba Bello Mohammed Justice of the Court of Appeal

Between

SAMUEL EMMANUEL APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO:

PROOF BEYOND REASONABLE DOUBT DOES NOT MEAN PROOF BEYOND ANY SHADOW OF DOUBT

What then is meant by “proof beyond reasonable doubt?” Proof beyond reasonable doubt does not mean proof beyond any shadow of doubt. It is not proof beyond all possible or imaginary doubt. It is such proof that satisfies the judgment and conscience of the judge as a reasonable man and applying his reason to the evidence before him that the crime has been committed by the defendant. Therefore, if on the whole the Court is left in any doubt, the prosecution would have failed to discharge the onus of proof which the law places on it and the accused person is entitled to a verdict of acquittal. See AJAYI VS. THE STATE (2013) 9 NWLR (Pt. 1360) 589; STATE VS. JOHN (2013) 12 NWLR (Pt. 1368) 337; JUA VS. STATE (2010) 4 NWLR (Pt. 1184) 217; AFOLALU VS. STATE (2010) 16 NWLR (Pt. 1220) 584; UDOSEN VS. STATE (2007) 4 NWLR (Pt. 1023) 125 and BAKARE VS. STATE (1987) 1 NWLR (Pt. 52) 579. FOLASADE AYODEJI OJO, J.C.A.

ALL THE INGREDIENTS OF THE OFFENCE CONTAINED IN A CAHRGE MUST BE PROVED FOR THE CHARGE TO BE VALID

To secure a conviction the prosecution must prove all the ingredients of the offence contained in the charge and the charge must be valid. See Section 204(1) of the Administration of Criminal Justice and other Related Matters Law which provides as follows:
“The charge shall contain only such particulars as to the time, date and place of the alleged offence and the defendant if any, against whom or the object if any in respect of which it was committed as are reasonably sufficient to give the Defendant notice of the offence with which he is charged.”
A valid charge must therefore address or answer the four “Ws” that is, who is being charged? When was the offence committed? Where was the offence committed and what is the offence? See BELGORE VS. FEDERAL REPUBLIC OF NIGERIA (2021) 3 NWLR (PT.1764) 503; ELIAS VS. FEDERAL REPUBLIC OF NIGERIA (2021) 16 NWLR (PT. 1800) 495; IKPA VS. STATE (2018) 4 NWLR (PT. 1609) 175 and FEDERAL REPUBLIC OF NIGERIA VS. MICHAEL (2018) 6 NWLR (PT. 1616) 438. FOLASADE AYODEJI OJO, J.C.A.

EVERY PARTICULAR IN THE CHARGE MUST BE PROVED

The law is settled that every particular in the charge must be proved. See CUSTOMS V. ABUBAKAR 1 LRN380. IN AGUMADU V. QUEEN (1963) 1 SCNLR 379 AT 382; (1963) 1ALL NLR 201 AT 202 – 203 Brett, FJ, emphasizing the point that details of the particulars of the alleged offence stated in the charge are not to be treated as mere surplusage, that such details or particulars “form part of the charge which must be proved with the same strictness as the other parts of the charge”. In other words, such averments in the charge, form part of the charge as they must be proved beyond reasonable doubt by the prosecution. FOLASADE AYODEJI OJO, J.C.A.

THE ONLY OPTION AVAILABLE TO A COURT WHERE THE EVIDENCE ADDUCED BY THE PROSECUTION IS AT VARIANCE WITH THE CHARGE

See AFOLAHAN VS. THE STATE (2018) 8 NWLR (PT. 1621) 223; OKONJI VS. THE STATE (1987) 1 NWLR (PT. 52) 659 AND OKASHETU VS. THE STATE (2016) 15 NWLR (PT. 1534) 126.
It is for all of the above that I resolve the doubt created in the evidence of the prosecution as regards the scene of crime in favour of the Appellant. Furthermore, the law is settled that where the evidence adduced by the prosecution at the trial is at variance with the charge, the only option open to the Court is to acquit the accused person.
Proof of the scene of crime and the time of commission are vital ingredients of the offence that must be established to secure a conviction. I therefore have no hesitation in coming to the conclusion that the Respondent failed to prove the offences for which the Appellant was charged and convicted beyond reasonable doubt. The doubt created in the case of the prosecution must be resolved in favour of the Appellant. FOLASADE AYODEJI OJO, J.C.A.

FOLASADE AYODEJI OJO, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Ogun State High Court, Ota Judicial Division in SUIT NO. HCT/8R/2009 BETWEEN THE STATE VS. (1) KABIRU ALIU (2) SOLOMON UDOKA and (3) SAMUEL EMMANUEL delivered on the 5th of July, 2018.

The Appellant as 3rd defendant with two others were arraigned and tried on a three count charge of conspiracy to commit armed robbery contrary to Section 6(b) of the Robbery and Firearms (Special Provisions) Act Cap R.11 Laws of the Federation of Nigeria 2004 and Armed Robbery contrary to Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap R.11 Laws of the Federation 2004.

Upon his arraignment, the Appellant and his co-accused persons pleaded not guilty to each of the three counts of the charge individually. The case went on to trial. At the trial the prosecution called five witnesses and tendered several Exhibits. The Appellant testified on his own behalf and called no witness. At the close of evidence on both sides the Court ordered for Written Addresses of Counsel. Counsel adopted their respective written addresses and the case was adjourned for judgment.

The learned trial Judge after a careful review of the evidence on record and the submissions of Counsel concluded the prosecution proved the charge against the Appellant and others beyond reasonable doubt and found them guilty as charged. The learned trial judge sentenced the Appellant and others to death. He held at page 161 of the record as follows:
“The punishment for the offences of Armed Robbery and Conspiracy to commit Armed Robbery for which the three accused persons have been convicted carries a mandatory sentence of death penalty. This Court has no discretion in the matter.
I therefore sentence each of the convicts as follows on each of the three counts.
…
On each of counts 1, 2 and 3.
That you Samuel Emmanuel be hanged by the neck until you be dead and may the Lord have mercy on you.”

Aggrieved by the decision, the Appellant who was the 3rd defendant at the trial has appealed to this Court. The Notice of Appeal containing one ground of Appeal was filed on the 2nd of October, 2018. See pages 162 – 163 of the Record. The Record of Appeal transmitted to this Court on the 27th of March 2019 was deemed as properly compiled and transmitted on the 8th of July 2020.

In line with the Rules of this Court, parties filed and exchanged briefs of Argument. The Appellant’s Brief of Argument settled by Aare J.B. Lawson filed on 4th of May, 2020 was deemed properly filed on 8th of July, 2020. Respondent’s Brief of Argument settled by Mrs. F. E. Bolarinwa-Adebowale filed on 7th September, 2020 was deemed properly filed on 25th January, 2022.

Learned counsel to the Appellant formulated the following two issues from the sole Ground of Appeal:
1) Whether the prosecution proved the case against the Appellant beyond reasonable doubt as required by law.
2) Whether the Court below gave reasonable consideration to the defence of alibi put forward by the Appellant.

The Respondent formulated a sole issue for determination to wit:
“Whether, the admission and reliance on the Appellant’s confessional statement and the testimony of PW1 by the trial Court was wrong when convicting the Appellant for the offences of conspiracy to commit armed robbery and armed robbery having considered Section 167(a) of the Evidence Act.”

At the hearing of the appeal on 25th January, 2022 learned counsel on both sides adopted and relied on their respective Briefs of Argument in urging us to allow/dismiss the appeal.

As I stated earlier on, the Notice of Appeal filed by the Appellant contains only one ground of appeal. The sole ground with its particulars read thus:
“1. Whether the learned trial judge of the Court below was right in law to have convicted the Appellant when the counts on the information were not proved beyond reasonable doubt.
PARTICULARS
a) The evidence led against the Appellant did not prove Appellant’s guilt beyond reasonable doubt.
b) The defence of the Appellant was not given sufficient consideration.”

The Appellant’s Counsel formulated two issues from the sole ground of Appeal. Generally, a counsel is not allowed to formulate more than one issue out of a ground of Appeal and where he does, the issues formulated are incompetent.
Even though the Court has condemned in clear terms such act which is termed proliferation of issues, there is no law either substantive or procedural that says such issues must be struck out. The Court is free to adopt any issue arising from the ground of Appeal or formulate its own issues. See STATE VS. MUHAMMAD (2021) 3 NWLR (PT. 1763) 241; NWEZE VS. THE STATE (2018) 6 NWLR (PT. 1615) 197;OLAIYA VS. STATE (2018) 10 NWLR (PT. 1626) 1; DURU VS. FEDERAL REPUBLIC OF NIGERIA (2018) 12 NWLR (PT. 1632) 20 and ORJI VS. STATE (2008) 10 NWLR (PT. 1094). The Appellant formulated two issues from one Ground of Appeal. This is proliferation of issues. The issues are incompetent. I will therefore adopt the sole issue formulated on behalf of the Respondent as the issue for determination in this appeal.

SOLE ISSUE FOR DETERMINATION.
“Whether the admission and the reliance on the Appellant’s confessional statement and the testimony of PW1 by the trial Court was wrong when convicting the Appellant for the offences of conspiracy to commit armed robbery having considered Section 167(a) of the Evidence Act”.
Learned counsel to the Appellant submitted and I agree with him that in our criminal jurisprudence, the prosecution has a duty to prove the guilt of the Accused person beyond reasonable doubt.

That in a charge of armed robbery, the prosecution must prove the three essential ingredients of the offence of armed robbery beyond reasonable doubt to secure conviction. He argued that an accused person is not required to prove his innocence because by Section 36(5) of the Constitution of the Federal Republic of Nigeria (1999) as amended, any person charged with the commission of a Criminal Offence shall be presumed innocent until he is proved guilty and that any doubt in the prosecution’s case should be resolved in favour of the Accused person. He cited the cases of IGABELE VS. THE STATE (2006) 6 NWLR (PT. 975) 100; AGBO VS. THE STATE (2006) NWLR (PT. 977) 545 to support his argument.

He submitted the case of the Appellant is that he was not at the scene of crime at the time the offence was committed but that the alibi raised by him was not investigated by the police. He conceded that the prosecution may rely on confession contained in the extra judicial statement of an accused where it is true, positive and direct pointing to the irresistible conclusion that the accused committed the crime but argued that the extra judicial statement attributed to the instant Appellant was not voluntarily made and as such the trial Court ought not to have relied on it to convict him.

For his part, learned counsel to the Respondent conceded that the onus is on the prosecution to prove its case against an accused person beyond reasonable doubt. She submitted that proof beyond reasonable doubt is however not proof beyond all shadow of doubt and craved in aid of her submission the case of ABIRIFON VS. THE STATE (2013) 9 SCM1. Relying on the case of AJAYI VS. STATE (2013) 3 SCM 1, Respondent’s counsel enumerated the ingredients to be proved to sustain a conviction for the offence of armed robbery. She submitted the standard of proof beyond reasonable doubt is attained where the prosecution has proved all the ingredients. That evidence led through PW1, PW2, PW3 and Exhibit E satisfies the burden placed on the prosecution.

She submitted further that a Court may act on the evidence of a single witness if the witness is believed and where corroboration is not required by law. She cited the case of NKEBISI & ANOR. VS. THE STATE (2010) 3 SCM 170 in support of her submission. She further urged us to hold thatPW3 identified the Appellant as one of those who robbed PW1 and PW2 and also that the stolen item found on the Appellant when he was caught running away from the scene of crime raises the presumption that he was one of the robbers. He relied on the provision of Section 167(a) of the Evidence Act 2011 and the cases of EZE VS. THE STATE (1985) 12 SC 4; EHIMIYEIN VS. THE STATE (2016) LPELR – 40841 (SC);EWUGBA VS. THE STATE (2017) LPELR – 43833 (SC) OMOPUPA VS. THE STATE (2008) ALL FWLR (PT. 445) 1648; SAKIKU VS. THE STATE (2013) 12 SCM 146 and ADESINA VS. THE STATE 6 SCM 82.

She went on to submit that the extra judicial statement (Exhibit E) made by the Appellant is confessional in nature by virtue of Sections 28 and 29(1) of the Evidence Act and was admitted in evidence after the trial Court was satisfied of its voluntariness.

She conceded that the Appellant retracted the confessional but argued that since it was admitted in evidence it became part of the prosecution’s case. She submitted that the confession of guilt made by the Appellant in Exhibit E was sufficient to ground his conviction without any corroboration.

On the defence of alibi raised by the Appellant at the trial, Counsel argued the defence cannot avail him because it was raised for the first time during his trial. She submitted that for the defence of alibi to avail him it must be raised at the earliest opportunity to give room for police investigation. He relied on the cases of TONGO VS. COP. (2007) 9 SCM 113 and OKOLO OCHEMAJE VS. THE STATE (2008) 10 SCM 103and further submitted that the evidence of PW1 and PW2 which fixed the Appellant at the scene of crime destroyed the defence of alibi.

On the offence of conspiracy, she submitted that the evidence of the prosecution witnesses as well as Exhibit E show that there was a meeting of mind between the Appellant and others to carry out the armed robbery.
She finally urged us to dismiss the appeal and affirm the judgment of the lower Court.

Now, the Appellant was charged, tried and convicted along with two others for the offences of conspiracy to commit armed robbery and armed robbery. The law is settled that under our system of criminal justice, an accused is presumed innocent until his guilt is established beyond reasonable doubt. See Section 36(5) of the 1999 Constitution (as amended). In other words, the burden is on the prosecution to prove the guilt of the accused and not for the accused to establish his innocence. See CHIDOZIE VS. COMMISSIONER OF POLICE (2018) 6 NWLR (Pt. 1615) 373; TAIYE VS. STATE (2018) 17 NWLR (Pt. 1647) 115; STATE VS. ZAKARI (2020) 8 NWLR (Pt. 17 27) 484; STATE VS. SHONTO (2019) 12 NWLR (Pt. 1686) 255 and ITODO VS. STATE (2020) 1 NWLR (Pt. 1704) 1. See also Section 135(1) and (2) of the Evidence Act 2011 which provides as follows:
“(1) If the commission of a crime by a party to any proceeding 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 Section 39 of this Act on the person who asserts it, whether the commission of such act is or is not directly in issue in the action.”
Also, it must always be borne in mind that the burden of proof on the prosecution does not shift.

The charge against the Appellant and his co-accused persons is as follows:
COUNT I
Statement of Offence
Conspiracy to commit a felony to wit:
Armed Robbery contrary to Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act Cap. R11 Laws of the Federation of Nigeria 2004.
Particulars of Offence
That you KABIRU ALIU (M), SOLOMON UDOKA (M), SAMUEL EMMANUEL (M) and another now at large on or about the 3rd day of December 2006 at Alagbole Ogunlowo Street, Iju Ajuwon in the Ota Judicial Division conspired together to commit a felony to wit: Armed Robbery.
COUNT II
Statement of Offence
ARMED ROBBERY contrary to Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act (Cap R. 11) Laws of the Federation of Nigeria, 2004.
Particulars of Offence
That you KABIRU ALIU (M), SOLOMON UDOKA (M), SAMUEL EMMANUEL (M) and another at large on or about the 3rd day of December, 2006 at Alagbole Ogunlowo Street, Iju Ajuwon, in the Ota Judicial Division whilst armed with dangerous weapons to wit: cutlass and gun robbed Mudasiru Oseni (m) of wrist watches and the sum of N7,000.
COUNT III
Statement of Offence
ARMED ROBBERY contrary to Section 1(2)(a) of the Robbery and Firearms (Special Provision) Act (Cap R. 11) Laws of the Federation of Nigeria, 2004.
Particulars of Offence
That you KABIRU ALIU (M), SOLOMON UDOKA (M), SAMUEL EMMANUEL (M) and another still at large on or about the 3rd day of December, 2006 at Alagbole Ogunlowo Street to wit: cutlass and gun robbed one Yinka Oseni of the sum of N200,000.00, one Sony Ericson mobile phone, one Sagem mobile phone and a bag containing jewelries.

It is clear from the foregoing that the charge contained in the Information laid against the Appellant and others at the trial Court provided the name of the Accused Persons, the date, place of the alleged offence and the offence committed. It is stated that the place where the offence was committed is Alagbole Ogunlowo Street, Iju Ajuwon.

In the instant appeal, Mudasiru Oseni who was the victim of the offence testified as PW1 at the trial. He testified inter alia as follows:
“My names are Mudasiru Adio Oseni. I am a retired commercial officer. I live at 57 Ayawoele Road, Iju Ajuwon. I know the Accused Persons. On Sunday 3/12/2006 at about 6.30a.m. I heard a noise in my compound I came outside to see what happened. I saw three men who are strangers. They held guns, cutlasses and knives. They asked me to raise my hands and they led me to my room. They took all my wrist watches. They also took my money. They were three, one put on a mask. They ask for all my properties. I told them all I had was on the table. They took all my properties. They led me to the toilet and locked me up there. They asked me for the owner of the red car in my compound. I told them it belonged to my daughter, my neighbors heard the voice of the armed robbers and they raised alarm that robbers were around. The armed robbers took to their heels and they were arrested as they were running away.”
See page 95 of the record.

One Yinka Oseni named as a victim of the crime under Count III of the Information Paper also testified as PW2 at the trial. Part of her testimony contained at page 96 of the record is as follows:
“My name is Olayinka Risikat Oseni. I am a businesswoman. I live at 47 Ayawoele Street before now Alagbole/Ogunlowo Road, Iju Ajuwon. I know the accused persons. On 3/12/2006, the accused persons attacked me and my family at home early in the morning at about 6am-6.30am. There was originally no light but the electricity company brought light so I woke up my younger sister to go out and put on the pumping machine and I heard her shout my name and her voice was panicking, as I turned to answer her, I saw her led by three men, one of them was masked. The three men asked for 500,000 dollars I brought house (sic) last night. I was confused and I starred at them. The three men had guns, cutlasses and knives. As I was looking at them one hit me on my arm with a cutlass. It is the 2nd accused who hit me with the cutlass. We were screaming, pleading and telling the accused persons we did not have the kind of money they were asking for… the accused persons stole all our jewelleries, money as my dresser as I had gone to the bank, we were locked in the toilet. I cannot remember how much they stole… ”

The evidence of Bosede Edun, PW3 is at pages 100 to 101 of the printed Record. She testified as follows: “Accused person: On 3/6/06 I was in my shop when I heard people shouting Thief! Thief! So I came out. The accused I can recognize on the course of running away colluded with me. It is the 3rd Accused I can recognize. I fell down as a result of the collision. I held on to the accused while I was on the ground. The 3rd Accused was then apprehended by those pursuing him.
The 3rd accused was searched and the following items, earrings, wrist watches bangles and new N100 notes which were many. We took the accused to the police station. The police asked the 3rd accused for where he got all the items on him. The 3rd accused said he had other accomplices. The 3rd accused and the police left the arrest of the other two accused persons and they later returned to meet me in the police station. I was asked to go and treat my injured leg. It was one of the 1st or 2nd accused persons that 3rd accused assisted police to arrest. It was the 2nd accused person that 3rd accused assisted police to arrest. It was the 2nd accused the 3rd accused assisted the police to arrest in my presence.”

In answer to questions put to her under cross examination she testified as follows:
“I do not know No. 57 Alagbole Ogunlowo Street IjuAjuwon. I do not know how far the above address from where I sell my wares.”

The evidence of PW3 is that she heard people shouting thief! thief! and when she came out she saw the 3rd accused (the Appellant) running away. The Appellant ran into her and she fell down as a result of the collision. She held on to him until some persons came and she released him to them. According to her this was on 3/6/06. The date of the incident for which the Appellant was charged and stood trial is 3rd of December, 2006. The incident for which PW3 identified the Appellant cannot be the same as that contained in the charge and I so hold. 3/6/06 is not 3rd of December 2006. The evidence of PW3 on the date of the incident she described is at variance with the date of the commission of the offence contained in the charge against the Appellant and the evidence of PW1 and PW2.

The Appellant stood trial with two other persons, KABIRU ALIU (M) and SOLOMON UDOKA (M). The three of them were convicted by the lower Court. Solomon Udoka filed an appeal against the judgment to this Court. His appeal is APPEAL NO: CA/IB/350C/2018 BETWEEN UDOKA SOLOMON VS. THE STATE. Judgment was delivered on the 5th of December 2019 and it is reported as (2019) LPELR – 49434 (CA). In that appeal, I considered the state of the particulars contained in the charge/information vis-a-vis the evidence of PW1 and PW2 and I held as follows:
“It is evident from the charge that the scene of crime is stated to be Alagbole Ogunlowo Street, IjuAjuwon. The evidence of PW1 that the scene of crime is 57, Ayawoele Road, IjuAjuwon is clearly at variance with that in the charge. PW2’s evidence is that she lives at 47, Ayawoele Street before now AlagboleOgunlowo Road, Iju, Ajuwon. This evidence of PW2 as reflected on the record is capable of two meanings. That she lives at Alagbole/Ogunlowo Road, IjuAjuwon or that 47, Ayawoele Street was formerly known as Alagbole/Ogunlowo Road, IjuAjuwon.”
I then concluded as follows:
“In my view, the address of the locus criminis given by PW2 gives room for speculation. The law is settled that the place where the offence was committed must be stated with precision in the charge. Where the nameof the locus criminis has changed, the prosecution is at liberty to amend the charge to which the accused is called upon again to plead. There must not be room for any doubt as to the scene of crime. The evidence of PW1 and PW2 on the scene of crime when considered along with the particulars of the offence of the charge to which the Appellant pleaded it cannot be said that the prosecution proved the locus criminis of the offence and I so hold. The Respondent who had the opportunity to amend the charge to give the Appellant the exact location of the scene of crime did not do so. It is trite that the “charge” in any criminal case must tell the person accused enough so that he may know the case alleged against him to prepare his defence.”
In IBRAHIM VS. STATE (2015) NWLR (PT. 1469) 164 AT 198, PARAGRAPHS B-F, the Supreme Court held, per Ngwuta, JSC as follows:
“The facts of this case clearly demonstrate a variation between the charge and evidence proffered in proof of same. This appears to have been mistaken by the respondent for a challenge to the competence of the charge itself.
Section 258 of the Evidence Act, 2011 defines fact in issue or principal fact. In a criminal trial, the locus criminis is a fact in issue and ought to be proved, along with other facts in issue, beyond reasonable doubt to secure a conviction. This is in conformity with the presumption of innocence in Section 36(5) of the 1999 Constitution of the Federation (as amended).
See WOOLMINGTON V. D.P.P. (1935) AC 462 AT 481 to which the presumption of innocence appears traceable…
The facts of this case create the impression that the prosecuting counsel at the trial Court deliberately scuttled his own case to let the Appellant walk away. And the two Courts below did not appear to have given a thought to the fact that evidence of the place the offence was committed varied with the place alleged in the charge as the place the offence was committed.”
In an attempt to prove the place where the offence was committed PW1 and PW2 who were victims of the offence gave conflicting addresses of the scene of crime. Their evidence is at variance with the particulars given in the charge. The evidence of PW3 on the date of the incident and the venue of the crime is also at variance with the particulars in the charge. There was no attempt to explain the material contradiction in the address of the scene of crime provided in the charge and the address of the scene given by the said prosecution witness. Furthermore, the prosecution did not find it necessary to amend the charge/information paper to accord with evidence adduced by its witnesses. Undoubtedly, the evidence of the prosecution witnesses is at variance with the particulars in the charge.
The scenario in the instant appeal presented in the case of IBRAHIM VS. THE STATE (supra) and his Lordship Rhodes-Vivour JSC at pages 196-197 PARAGRAPHS H-D held thus:
“The place where the offence was committed must be stated with sufficient precision. Where this is not done the prosecution is at liberty to amend the charge, or the Court may alter the charge but this must be done at any time before judgment and all alterations or additions shall be read and explained to the Accused/Appellant. See Sections 162, 163, 164, of the Criminal Procedure Act. Since the appellant was accused of committing the offence of armed robbery at Igouil Petrol Station Boluwaji, Ibadan and the evidence led was for a Robbery committed somewhere else, at (No.1 and 3 Bode Adebimpe Close, Boluwaji Road, Ibadan) and there was no amendment of the charge by the prosecution or the Court, the appellant would be entitled to an acquittal, in view of the fact that no evidence was led to show that he committed the offence of armed robbery at Igouil, Petrol Station Boluwaji Ibadan.
It is only when all the vital ingredients of the offence have been clearly established that the charge is said to have been proved beyond reasonable doubt. See ALABI VS. STATE (1993) 7 NWLR (PT. 307) PG. 511.
In view of the fact that there is no evidence to even remotely suggest that any offence was committed at Igouil Petrol Station Boluwaji Ibadan the venue of the offence in the charge the case has not been proved beyond reasonable doubt”.
The Respondent cannot be said to have proved the locus criminis in this appeal beyond reasonable doubt and I so hold. The locus criminis in a criminal trial is a fact in issue which must be proved alongside other facts in issue beyond reasonable doubt. It is the law that whenever any doubt arise in the case of the prosecution in the course of a criminal trial, such doubt must be resolved in favour of the accused person. See AFOLAHAN VS. THE STATE (2018) 8 NWLR (PT. 1621) 223; OKONJI VS. THE STATE (1987) 1 NWLR (PT. 52) 659 AND OKASHETU VS. THE STATE (2016) 15 NWLR (PT. 1534) 126.
It is for all of the above that I resolve the doubt created in the evidence of the prosecution as regards the scene of crime in favour of the Appellant. Furthermore, the law is settled that where the evidence adduced by the prosecution at the trial is at variance with the charge, the only option open to the Court is to acquit the accused person.
Proof of the scene of crime and the time of commission are vital ingredients of the offence that must be established to secure a conviction. I therefore have no hesitation in coming to the conclusion that the Respondent failed to prove the offences for which the Appellant was charged and convicted beyond reasonable doubt. The doubt created in the case of the prosecution must be resolved in favour of the Appellant.
In the light of all of the above, I find this appeal meritorious and it is accordingly allowed. The conviction of the Appellant and sentence passed on him by the trial Court in the judgment Suit Nos: HCT/8R/2009 delivered on 5th of July 2018 is hereby set aside. I enter a verdict of discharge and acquittal in favour of the Appellant, Samuel Emmanuel.

MUHAMMAD IBRAHIM SIRAJO, J.C.A.: I had a preview of the lead judgment prepared by my learned brother FOLASHADE AYODEJI OJO, JCA, and just delivered. I find myself in agreement with the reasoning and conclusion reached therein, that the appeal is meritorious and deserves to be allowed.

The vexed question of the fundamental nature of proof of locus criminis as an essential ingredient in criminal trial has reared its head again in this appeal. My lord has dispassionately considered and dealt with the issue with the aid of decided authorities, and rightly came to the conclusion, to which I am in agreement that the prosecution having failed to prove the scene of crime with credible evidence due to the conflicting evidence of its witnesses, the conviction of the Defendant cannot be sustained. It is for this reason and the more detailed reasons in the lead judgment that I too allow the appeal and set aside the conviction and sentence passed on the Defendant. In their place, I enter a verdict of discharge and acquittal.

ABBA BELLO MOHAMMED, J.C.A.: I had a preview of the lead judgment just delivered by my learned brother, FOLASADE AYODEJI OJO, JCA. I fully concur with the elaborate reasons and conclusions stated therein.

It must be stressed that for the Prosecution to succeed in proving the guilt of the Defendant beyond reasonable doubt, it must lead evidence which is consistent with the particulars of the charge. One of the most important of such particulars that must be proved in a criminal charge is the place of the commission of the crime, otherwise known as locus criminis. In every criminal trial, the locus criminis is a fact in issue which must be established by the Prosecution beyond reasonable doubt: IBRAHIM v STATE(2015) LPELR-40833(SC) per Ngwuta, JSC at pages 36 – 36, paras. D – A: and SOLOMON v STATE (2019) LPELR-49434(CA), per Ojo, JCA at pages 27 – 32, paras. A – A.
In the instant appeal, the two witnesses for the Prosecution (PW1 and PW2); who are the victims of the offence, gave conflicting evidence as to the place where the offence was committed, and their evidence was also at variance with the locus criminis stated in the Charge. The settled law is that where evidence led by the Prosecution is at variance with the Charge, the Defendant is entitled to an acquittal. In STATE v IBRAHIM (supra), the Apex Court, per Aka’ahs, JSC held at page 38, para. C – D, that:
The law is that where the charge laid is at variance with the evidence tendered, the conviction of the appellant will not stand.
In the circumstance of this case where the Prosecution led inconsistent and contradictory evidence which is also at variance with the locus criminis stated in the Charge, the Prosecution had failed to establish beyond reasonable doubt a vital fact in issue relating to the charge for which the Appellant was convicted and sentenced by the trial Court. The Appellant is therefore entitled to an acquittal. Thus, in concurrence with the lead judgment of my learned brother FOLASADE AYODEJI OJO, JCA, I also allow this appeal, set aside the conviction and sentence of the Appellant and return a verdict of discharge and acquittal in favour of the Appellant.

Appearances:

G. S. ADEGOKE For Appellant(s)

B. A. ADEBAYO, DPP Ogun State Ministry of Justice, with him, O. A. SONOIKI, Asst. DPP and AKAPO, Principal State Counsel For Respondent(s)