FEMI BALOGUN V. THE STATE
(2013)LCN/6299(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 11th day of June, 2013
CA/I/149/2010
JUSTICES
M.B. DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria
ADAMU JAURO Justice of The Court of Appeal of Nigeria
OBIETONBARA DANIEL-KALIO Justice of The Court of Appeal of Nigeria
Between
FEMI BALOGUN Appellant(s)
AND
THE STATE Respondent(s)
RATIO
INGREDIENTS OF THE OFFENCE OF ARMED ROBBERY
It is the law that the prosecution has the responsibility of proving all the essential elements of the offence charged.
It is also trite that the essential ingredients of the offence of armed robbery are-
1. That there must be a robbery or series of robberies;
2. That the robbery or each robbery was an armed robbery; and
3. That the accused was one of those who took part in the armed robbery.
See Bello v. The State (2007) 10 NWLR part 1043 p.564; Bozin v. The State (1985) 2 NWLR part 8 p.465 at 469; Alabi vs. The State (1993) 7 NWLR part 307 p.511 at 523. It is settled law that for the prosecution to succeed in establishing armed robbery there must be proof beyond reasonable doubt of these ingredients. See Afolalu v. The State (2010) 15 NWLR Part 1220 Page 584 at 613. PER DANIEL-KALIO, J.C.A.
WHETHER OR NOT IT IS ALL CASES THAT CONTRADICTIONS IN A PROSECUTION CASE WILL BE ENTITLED TO AN ACQUITTAL
Now, it is the law that it is not in all cases where there are discrepancies or contradictions in the prosecution’s case that an accused person will be entitled to an acquittal. It is only when the discrepancies or contradictions are on material points or point in the prosecution’s case which creates some doubts that the accused will be entitled to benefit therefrom. See Wankey v. State (1993) 5 NWLR Part 295 Page 542 at p.552.I think that the discrepancies in the case of the prosecution with regard to the usage of a cutlass in the commission of the armed robbery falls within the bracket of material discrepancies capable of creating some doubt that the appellant committed the offence. The appellant should therefore be entitled to benefit from such doubt. PER DANIEL-KALIO, J.C.A.
WHETHER OR NOT THE APPELLATE COURT CAN DISTURB THE FINDINGS OF FACT BY THE TRIAL COURT
While findings of facts are within the domain of the trial court and should not normally be disturbed by the appellate court, nothing prevents the Appellate Court from doing so when the evidence in support of such findings of facts does not show that degree of certainty that must be established in a criminal trial. See Queen vs. Ogodo (1961) 12 NSCC 311; State vs. Emine & Ors (1992) NWLR Part 256 P.658 at page 667. PER DANIEL-KALIO, J.C.A.
OBIETONBARA DANIEL-KALIO, J.C.A. (Delivering the Leading Judgment): This appeal is over a conviction and sentence in a case of armed robbery. From the information before the High Court of Ogun State, Ijebu-Igbo Judicial Division in suit No.HCB/8c/2006, the appellant Femi Balogun and one other person were charged with the offences of conspiracy to commit Armed Robbery and Armed Robbery contrary to section 6(b) and section (1) (2) (a) respectively of the Robbery and Firearms (Special provisions) Act Cap R. 11 Laws of the Federation, 2004 and punishable under the said Act. The appellant was accused of robbing his victims of a Sonny Ericson cell phone and the sum of N500 while armed with a cutlass.
The robbery incident took place at No. 3 Topon Road, Ijebu-Igbo, Ogun State.
The trial proper in the lower court began on the 11th of June 2007 with the plea of the appellant. Judgment was delivered roughly two years after, on the 30th of July 2009, to be precise. The trial Judge found that the prosecution had discharged the burden of proof placed by the law on it by proving the guilt of the appellant beyond reasonable doubt in counts II and III preferred against him. He convicted the appellant on both counts and sentenced him to death as the enrolled judgment order indicates.
Dissatisfied with the judgment, the appellant swiftly filed a Notice of Appeal dated 5th August, 2009. On 27/8/2010 he filed an Amended Notice of Appeal after an order of this court authorizing him to file one. The Amended Notice of Appeal was deemed as properly filed and served on 28/10/10 by an order of this court.
Apart from the omnibus ground of appeal that stated that the decision of the High court is unreasonable and cannot be supported having regard to the evidence, the appellant in the Amended Notice of Appeal gave a sole ground of appeal, which is that the learned trial Judge erred in law in holding that the prosecution proved the offence of armed robbery as charged against the appellant. The following were the particulars in substantiation of the sole ground of appeal:-
a. The respondent did not establish conclusively before the lower court that there was any robbery as charged;
b. There was no independent witness of the alleged robbery in a large compound with other tenants including the 2nd accused person at the trial who lived next door and also a night guard residing in the premises;
c. There are too many inconsistencies in the evidence of PW1, PW2 and PW3 (alleged victims of the armed robbery);
d. There was no proof that the appellant was armed in the course of the alleged robbery;
e. The evidence of PW2 (Ayoola Saka) that he got up from the position where he lay down and took hold of a cutlass and the appellant who was armed with a cutlass with which he was beating the victims suddenly took flight is incredible and difficult to believe;
f. The alleged victims of the armed robbery who were beaten with the cutlass did not show or say anything about cuts or marks received from the beating;
g. The cutlass that was purportedly used for the robbery was allegedly recovered from the compound more than one week after the alleged robbery; and
h. PW2 who allegedly pursued the appellant and who cut him in the buttocks as he scaled the compound fence made no mention of the appellant dropping the cutlass and the cutlass remained on the same spot for more than one week until the appellant allegedly told the investigating police officer that he dropped same.
Appellant’s brief of Argument was filed in court on 19/11/2010 and deemed as properly filed and served on 30/3/2011 following an order of this court. On 9/4/2013 I. A. Saka Esq. adopted the brief of argument.
No reply brief was filed. A sole issue for determination was identified in the Brief of Argument. The issue is whether the prosecution proved the offence of armed robbery against the appellant.
In addressing the sole issue, three questions were posed by the appellant’s counsel in the Brief of Argument. He answered all three questions in the negative. The first question was whether the prosecution proved that there was a robbery. In giving a ‘No’ response to that question, appellant’s counsel referred to the evidence of PW1, PW2 and PW3 and contended that there was serious doubt whether there was indeed a robbery as alleged by the prosecution. He submitted that there was no independent witness of the robbery by other tenants in the premises that was robbed. He contended that the night guard of the premises was a vital witness who ought to have been called by the prosecution to confirm the story of Pw1, Pw2 and Pw3. The failure to call the night guard he submitted is fatal to the prosecution’s case. He cited the case of Usufu v. State (2007) 1 NWLR Part 1020 Page 94 at p.118.
The second question which appellant’s counsel also answered in the negative is whether the prosecution proved beyond reasonable doubt that the robbery was an armed robbery. With regard to that question, he contended that it made no sense that someone who was armed with a cutlass and was beating another with it, would allow that other person who was in fact lying down, to get up and grab a cutlass of his own. Such a scenario which the PW2 painted he submitted, was one that was made up in order to justify the allegation that the robbery incident was an armed robbery incident. It was submitted that PW2 did not show any cut or marks that he received to indicate that he was beaten with a cutlass as alleged, counsel submitted that PW2 made no mention of the fact that the appellant dropped his cutlass as he scaled the fence on the day of the incident.
The third and final question which learned counsel answered in the negative is whether the prosecution proved beyond reasonable doubt that the appellant was one of those who took part in the robbery. With respect to his answer in the negative to that question, learned counsel submitted that having regard to his submission that there was no robbery, the question whether the appellant was one of the robbers did not arise. He urged the court that the prosecution did not discharge the burden of proving that the appellant committed the offences beyond reasonable doubt.
The respondent’s brief of argument was settled by J. K. Omotosho Deputy Director of Public Prosecution (DDPP) of the Ogun State Ministry of Justice. The brief was filed on 27/9/11, but deemed as properly filed and served on 8/3/2012. The brief was adopted in this court on 9/4/2013. In formulating the issues for determination in this appeal, respondent’s counsel agreed with and adopted the sole issue as formulated by the appellant’s counsel which as will be recalled, is whether the prosecution has established the offence of armed robbery against the appellant beyond reasonable doubt. He submitted that it is the duty of the prosecution to establish all the ingredients of the offence of armed robbery beyond reasonable doubt.
On whether there was a robbery incident, learned counsel referred to the evidence of PW1, PW2 and PW3 and submitted that their evidence established that there was a robbery on August 31, 2005. Contrary to the submission of the appellant’s counsel that the guard in the premises where the robbery took place was a material witness, respondent’s counsel contended that the guard was not one. He cited the case of Usufu v. State (supra) referred to by appellant’s counsel and submitted that a material witness is one who played a prominent role in a case. The guard he argued, is not a material witness and as such it was not necessary to call him.
With regard to whether the robbery was an armed robbery, respondent’s counsel again referred to the evidence of PW1, PW2 and PW3 concerning a cutlass with which the appellant beat his victims. The cutlass he submitted was tendered as Exhibit H. He urged the court that the prosecution established beyond reasonable doubt that the robbery was an armed robbery.
On whether the appellant was the robber, again counsel referred to the evidence of PW1, PW2 and PW3 which establish that they were able to see the face of the robber. Furthermore he argued, the person that treated the appellant at the clinic i.e., PW4, saw the appellant with the cell phone stolen during the robbery in the course of treating him. The cell phone was also seen with the appellant at the police station after his arrest, he submitted.
The learned Deputy Director of Public Prosecution (DDPP) contended that in addition to the direct evidence linking the appellant with the crime, there was also circumstantial evidence by reason of recent possession which implicates the appellant. He cited Section 149 (a) of the Evidence Act. He contended that it is trite law that where stolen property is found in possession of a person soon after it was stolen, the presumption is that the person in whose possession the property was found is either the thief or the receiver of the stolen property. He cited the case of Aremu v. The State (1991) 17 NWLR Part 201 page 1 at P.16. It was submitted that the fact that the appellant was found with the stolen cell phone soon after the robbery established that the appellant was the robber. He urged the court to dismiss the appeal and affirm the judgment of the lower court.
It is the law that the prosecution has the responsibility of proving all the essential elements of the offence charged.
It is also trite that the essential ingredients of the offence of armed robbery are-
1. That there must be a robbery or series of robberies;
2. That the robbery or each robbery was an armed robbery; and
3. That the accused was one of those who took part in the armed robbery.
See Bello v. The State (2007) 10 NWLR part 1043 p.564; Bozin v. The State (1985) 2 NWLR part 8 p.465 at 469; Alabi vs. The State (1993) 7 NWLR part 307 p.511 at 523.
It is settled law that for the prosecution to succeed in establishing armed robbery there must be proof beyond reasonable doubt of these ingredients. See Afolalu v. The State (2010) 15 NWLR Part 1220 Page 584 at 613.In this case, the learned trial Judge came to the conclusion that the charge of armed robbery against the appellant who was the first accused before him, was proved beyond reasonable doubt. His words at page 95 of the record which contains part of his judgment under reference:
“Having painstakingly considered the evidence before the court, I prefer the evidence of the prosecution witnesses that there was a robbery in the residence of PW1 and PW2 in the midnight of 31st of August, 2005 and that the robbery was an armed robbery, to the evidence of the 1st accused person that he only went to the said house to borrow paper and pen during which time he had an encounter with PW2 whom he alleged bore grudge against him because of an earlier incident which he claimed happened between them.”
It seems to me that by the reasoning of the trial Judge above, the case was decided on preponderance of evidence or balance of probability instead of the higher standard of proof beyond reasonable doubt which is required in a criminal matter.
That a crime must be proved beyond reasonable doubt is an onerous burden placed on the prosecution which the prosecution must unflappably discharge. A court of law much be extra meticulous in arriving at a conclusion that the burden has been discharged by the prosecution. This is because conviction and sentence for a crime is a game changer in the life of a person found guilty. Depending on the gravity of the offence, a person found guilty loses his right to liberty and in cases where the offence is a capital one, the right to life itself.
My take on the concept of proof beyond reasonable doubt is that where in a criminal case, a court considers from the evidence placed before it that a doubt has emerged on a material point, and upon ratiocination concludes that it will be unconscionable to resolve the doubt in favour of an accused person, then there will be proof beyond reasonable doubt. My view therefore is that the doubt must be the subject of rigorous judicial examination before a conclusion can be reached whether there has or has not been proof beyond reasonable doubt, The often cited definition of the term by Denning J, (as he then was) suggests that a judicial examination is critical to arriving at a decision that there has been proof beyond reasonable doubt, said Denning J. in Miller v. Minister of pensions (1947) 2 ALL ER Page 372; 373
“Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence “of course it is possible but not in the least probable”, the case is beyond reasonable doubt, but nothing short of that will suffice”.
See also Moses Jua v. State 5 NCC p. 143 at p. 178 – 178 per Mukhtar JSC now CJN.
I find a definition of the term in an e-dictionary of legal terms which I consider to be rather quaint but nevertheless quite apt. It nicely encapsulates the essence of the phrase when it suggests that it means “you better be damned sure”. That definition may sound rather pedestrian and even simplistic to a legal mind but I think it is refreshingly lucid.
The question now is, from the evidence of the prosecution before the lower court can one be “damned sure” that the appellant committed the offence?
Can one say with regard to the strength of the evidence against the appellant that there is only a remote possibility in his favour which can be dismissed with the sentence “of course it is possible but not in the least probable”? I propose to examine the evidence of the prosecution witnesses a little closely.
PW1 in her evidence stated that the appellant “started using his cutlass to beat us”, She also said the appellant “started using the cutlass to beat my younger sister”, She further said “Mr. Ayoola tried to look at him from where he lied face down, The robber got angry and he started using his cutlass to beat him”. See at page 43 of the Record. On the condition of her room, PW1 said “the light in my room was switched off”. See at Page 44 of the Record.
PW2 Mr. Ayoola Saka on his part stated that the appellant “forced the door open with a cutlass he was holding”. He also said “He started beating me with a cutlass”. He further said that the appellant “started beating me with the flat side of the cutlass he held”. See at page 46 of the Record.
On the state of the room, PW2 said “the light in the room was off but the surrounding light in the premises were all put on”. See also at page 46 of the Record.
On her part, PW3 stated that the appellant “went to Mr. Ayoola and started beating him with the cutlass which he was holding”. See at page 48 of the Record.
The above pieces of evidence allege that the appellant beat his victims with a cutlass, although there is a discrepancy whether all the victims or only PW2 was beaten with the cutlass. Two witnesses, i.e. PW1 and PW2 candidly said that the light in the room was switched off. The question that should naturally agitate the mind is whether in a dark or poorly lit room a robber can beat his victims with a cutlass without causing any injury to any of them, In other words, that the beating of the victims left the victims unscathed. In my humble view, the probability of that happening is highly remote. None of the robbery victims i.e. PW1, PW2 and PW3 reported that they suffered any injury.
With regard to the cutlass allegedly used by the appellant in committing the armed robbery, PW4 Joseph Uzuegbu a police Sergeant who did not carry out the initial investigation but only carried out a further investigation testified that in the course of that further investigation he recovered the cutlass used in committing the offence beside the wall of the fence of the premises where the robbery took place. The cutlass, Exhibit H, according to PW4 was recovered on the 8th of September 2005 i.e. about 7 days after the robbery incident. PW6 Eno Igwe a police Corporal who carried out the initial investigation did not give any evidence of noticing the cutlass anywhere, He affirmed that he visited the scene of crime.
As between PW4 who visited the scene of crime after 7 days and PW6 who visited the scene of crime immediately after the crime was reported, it seems to me that the more likely officer to see a cutlass left behind by the robber would have been PW6. See Ozaki v. State (1990) 1 NWLR part 1.24 p.92 at 111. If as it seems, the trial Judge preferred the evidence of PW4 who said he recovered the cutlass after 7 days of the armed robbery incident, to the evidence of PW6 who did not see it at the scene of crime shortly after the report of the crime, he must give cogent reasons for preferring the evidence of PW4. He cannot pick and choose which of the prosecution witnesses to believe without giving cogent reasons. See (1990) 6 NWLR 6 part 155 at p. 194. That the cutlass was discovered 7 days after the commission of the crime at the very spot it allegedly fell, is most improbable and in my view, quite incredible.
It will be recalled that PW2 said that the door was forced open with a cutlass. If that is the case, there would certainly be tell-tale marks on the door, Neither PW4 nor PW6 who investigated the crime gave evidence that the door suffered any harm.
Now, it is the law that it is not in all cases where there are discrepancies or contradictions in the prosecution’s case that an accused person will be entitled to an acquittal. It is only when the discrepancies or contradictions are on material points or point in the prosecution’s case which creates some doubts that the accused will be entitled to benefit therefrom. See Wankey v. State (1993) 5 NWLR Part 295 Page 542 at p.552.I think that the discrepancies in the case of the prosecution with regard to the usage of a cutlass in the commission of the armed robbery falls within the bracket of material discrepancies capable of creating some doubt that the appellant committed the offence. The appellant should therefore be entitled to benefit from such doubt. While findings of facts are within the domain of the trial court and should not normally be disturbed by the appellate court, nothing prevents the Appellate Court from doing so when the evidence in support of such findings of facts does not show that degree of certainty that must be established in a criminal trial. See Queen vs. Ogodo (1961) 12 NSCC 311; State vs. Emine & Ors (1992) NWLR Part 256 P.658 at page 667.It seems to me that most crimes in this country are hardly investigated thoroughly. In a vast majority of cases it seems to me, investigation begins and ends with the obtaining of a confessional statement. This does no credit to the criminal justice system of this country. It is time that a case is made for the use of dactylography as a mainstream method of investigating crime. In this case, implausible as it is, if indeed the cutlass used by the appellant in committing the crime was found at the scene of crime 7 days after the crime, the cutlass should have been subjected to forensic examination for fingerprints. If fingerprints that match the appellant’s are found on it, then a veritable “smoking gun” would have been found. It is not enough to produce a cutlass and have a feeling of ‘eureka’. The cutlass must be linked to the accused to earn it probative value.
In the final analysis, I hold that there is merit in this appeal. The appeal is allowed. The conviction and sentence of the appellant by the trial court in its judgment dated 30th July 2009 are hereby quashed. The appellant is hereby discharged and acquitted.
MONICA B. DONGBAN-MENSEM J.C.A.: I agree with the lead judgment prepared by my learned brother Daniel-Kalio, JCA. Life is sacred, it should not be condemned except on a very compelling evidence of a dastardly criminal act. That a man all by himself broke into the house of the PW1 and by the use of a cutlass which resulted in on injury what so ever should be condemned to die leaves much to be desired. It is not stated how the Appellant left the premises which he trespassed into, terrorised the inhabitants and then decided to leave his weapon of terror at the scene as evidence against self. The story does not add up.
As rightly stated in the lead Judgment, the cutlass should have been subjected to forensic test to identify the finger prints of the Appellant.
ADAMU JAURO, J.C.A.: I have had the privilege of a preview in advance of the lead judgment just delivered by my learned brother, O. Daniel-Kalio, JCA. I entirely agree with the reasoning and conclusion contained therein, to the effect that the appeal is meritorious.
I adopt the said judgment as mine and hereby allow the appeal, the conviction and sentence of the appellant by the trial court in its judgment dated 30th July, 2009 are hereby set aside. A verdict of discharge and acquittal is hereby entered in favour of the appellant.
Appearances
Ikenna OkoliFor Appellant
AND
J.K. Omotosho
Deputy Director Public Prosecution, Ministry of Justice
Ogun State with E.R. Akpe, E. A. Adenigbagbe and O.V. OladoyinFor Respondent
