ISAH v. STATE
(2022)LCN/16883(CA)
In The Court Of Appeal
(KANO JUDICIAL DIVISION)
On Thursday, February 24, 2022
CA/KN/13/C/2021
Before Our Lordships:
Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal
Abubakar Muazu Lamido Justice of the Court of Appeal
Usman Alhaji Musale Justice of the Court of Appeal
Between
HAMZA ISAH APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
THE BURDEN OF PROOF AND STANDARD OF PROOF IN CRIMINAL MATTERS
Now, it is settled in our jurisprudence that the burden of proving that any person has committed a crime or a wrongful act rests on the person who asserts it. Where the commission of crime by a party is in issue in any proceedings, it must be proved beyond reasonable doubt. In discharging the burden, all the essential ingredients of the crime alleged must be proved beyond reasonable doubt. The burden never shifts. Therefore, if in a criminal trial, on the whole of the evidence before it, the Court is left in a state of doubt, the prosecution would have failed to discharge the burden of proof which the law lays upon it and the defendant will be entitled to an acquittal.
It must, however, be stated that proof beyond reasonable doubt is “not proof to the hilt” and is thus not synonymous with proof beyond all iota of doubt or proof of a mathematical certainty. Thus, 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 will be said to have been proved beyond reasonable doubt – Isah Vs State (2018) 8 NWLR (Pt 1621) 346, Ezeani Vs Federal Republic of Nigeria (2019) 12 NWLR (Pt 1686) 221, Philip Vs State (2019) 13 NWLR (Pt 1690) 209, Sanmi Vs State (2019) 13 NWLR (Pt 1690) 551 and Itodo Vs State (2020) 1 NWLR (Pt. 1704) 1. PER ABIRU, J.C.A.
THE FACTORS TO BE SATISFIED FOR A PROSECUTION TO SECURE A CONVICTION FOR ARMED ROBBERY
It is trite that for a prosecution to secure a conviction for armed robbery, it must establish beyond reasonable doubt the cumulative presence of the following ingredients of the offence: (i) that there was robbery or series of robberies; (ii) that the robbery was an armed robbery carried out with firearms or offensive weapons; and (iii) that the person charged with the offence was one of the robbers or implicated therein. The onus on the prosecution to prove the cumulative presence of the ingredients cannot be compromised in any respect. The onus does not shift at all as it rests squarely on the prosecution throughout the case. Where the prosecution fails to prove any of the ingredients, the offence of armed robbery would not have been established beyond reasonable doubt and the accused person would be entitled to be discharged and acquitted – Dawai Vs State (2018) 5 NWLR (Pt 1613) 499, Orisa Vs State (2018) 11 NWLR (Pt 1631) 453, Amos Vs State (2018) LPELR 44694(SC), John Vs State (2019) LPELR 46936(SC), Ayinde Vs State (2019) LPELR 47835(SC), Iorapuu Vs State (2020) 1 NWLR (Pt 1706) 391. PER ABIRU, J.C.A.
WAYS OF ESTABLISHING THE GUILT OF AN ACCUSED PERSON
It is settled law that in criminal trials, the guilt of an accused person for or the fact of his participation in the commission of the offence charged can be established in any or all the following ways (a) the confessional statement of the accused person wherein he or she admits the commission of the offence and which has been duly tested, proved and is unequivocal and admitted in evidence; (b) circumstantial evidence which is complete, cogent and unequivocal and which leads to the irresistible conclusion that the accused committed the offence; and (c) evidence of an eye witness who saw the accused person committing the offence charged. Any one of the methods is sufficient – Philip Vs State (2019) 13 NWLR (Pt. 1690) 209, Hamza Vs State (2019) 16 NWLR (Pt. 1699) 418, Alao Vs State (2019) 17 NWLR (Pt. 1702) 501, Itodo Vs State (2020) 1 NWLR (Pt 1704) 1 and Iorapuu Vs State (2020) 1 NWLR (Pt 1706) 391. PER ABIRU, J.C.A.
THE DUTY OF AN APPELLANT WHERE HE ASSERTS THAT THE PROSECUTION FAILED TO PROVE HIS GUILD BEYOND REASONABLE DOUBT
The law is that if an appellant asserts that the prosecution failed to prove his guilt beyond reasonable doubt before conviction, it is for him to establish that it is so and it is the duty of an appeal Court to examine the assertion against the whole background of the case and in particular, against the evidence leading to the guilt of the appellant. If at the end of the whole of the case, there is reasonable doubt created by the evidence given either by the prosecution or the appellant, as to whether the offence was committed by him, the prosecution has not made out the case and the appellant is entitled to an acquittal – Oteki Vs AG Bendel State (1986) All NLR 371, Ekpe Vs State (1994) 12 SCNJ 131 and Udosen Vs The State (2007) All FWLR (Pt 356) 669. PER ABIRU, J.C.A.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Jigawa State delivered in Case No. JDU/87C/2017 by Honorable Justice Umar M. Sadiq on the 28th of October, 2020.
The Appellant, as the first accused person, was charged along with one other and others at large with two counts of conspiracy to commit armed robbery and of committing armed robbery contrary to the provisions Sections 97 and 298(1) of the Penal Code of Jigawa State. The Appellant was alleged to have, with the one other and others at large, on or about the 5th day of August, 2016 in Kumbura Fulani Settlement in Birni Kudu Local Government Area of Jigawa State conspired to commit armed robbery and to have committed armed robbery by attacking one Isyaku Abubakar while armed with guns and machetes and making away with the sum of N200,000.00.
The Appellant pleaded Not Guilty to the charge and the matter proceeded to trial. In the course of the trial, the Respondent called two witnesses in proof of its case against the Appellant and the Appellant testified as the sole witness in his defence. At the conclusion of trial and after the rendering of final written addresses by Counsel to the parties, the lower Court found the Appellant guilty as charged and sentenced him to five years imprisonment on the count of conspiracy to commit armed robbery and life imprisonment on the count of armed robbery. The Appellant was dissatisfied with the judgment and he caused a notice of appeal dated the 12th of January, 2021 and containing five grounds of appeal to be filed.
In arguing the appeal, Counsel to the Appellant filed a brief of arguments dated the 26th of July, 2021 on the 30th of July, 2021 and the brief of arguments was deemed properly filed and served by the Court on the 18th of October, 2021. In response, Counsel to the Respondent filed a brief of arguments dated the 25th of October, 2021, on the 18th of November 2021. At the hearing of the appeal, Counsel to the parties relied on and adopted the arguments contained in their respective briefs of arguments as their submissions on the appeal.
Counsel to the Appellant distilled one issue for determination in the appeal and it is:
Whether having regard to the totality of the evidence before the trial Court, the trial Court was right when it held that the Respondent proved its case beyond reasonable doubt against the Appellant.
In arguing the issue for determination, Counsel to the Appellant referred to the cases of Arison Trading Vs Mil. Gov. Ogun State (2009) All FWLR (Pt. 496) 1819 and Adighije Vs Nwaogu (2010) All FWLR (Pt 521) 1521 in reiterating that an appeal is by way of a rehearing of a matter on the printed records and the cases of Oseni Vs State (2012) All FWLR (Pt. 619) 1044, Olagesin Vs State (2013) All FWLR (Pt 670) 1357 and Madu Vs State (2012) All FWLR (Pt. 641) 1416 in restating the established principle that in a criminal trial, the burden is statically on the prosecution to prove the guilt of an accused person beyond a reasonable doubt. Counsel also referred to the cases of Obidike Vs State (2014) All FWLR (Pt 733) 1899, Akawo Vs State (2011) All FWLR (Pt 597) 624 and Okebata Vs State (2013) LPELR-22474(CA) in stressing the point that, in discharging the burden of proof on it, the prosecution must prove all the ingredients of the offence charged beyond reasonable doubt and the case of Shande Vs The State (2004) FWLR (Pt 223) 1955 in asserting that a trial Court must be painstaking in assessing the evidence tendered before it by the parties in a criminal trial.
Counsel reproduced the three ingredients of the offence of armed robbery and stated that apart from proving that a robbery occurred and that it was carried out with arms, the prosecution must prove beyond reasonable doubt that the accused was the robber or one of the robbers and he referred to the cases of Sale Vs State (2015) 12 SCNJ 73, Etisi Vs State (2018) All FWLR (Pt 920) 33 and Aichenabor Vs State (2015) All FWLR (Pt. 763) 1986. Counsel stated that taking all these principles into consideration and looking at the evidence led at trial, the Respondent woefully failed to prove beyond reasonable doubt that Appellant was either a robber or one of the robbers and that the lower Court was in error when it found that the Respondent proved its case against the Appellant beyond reasonable doubt.
Counsel stated that the Respondent failed to call the police officers or the persons who arrested the Appellant, and who are vital witnesses in a case of armed robbery, to testify at the trial and that the evidence of the second prosecution witness was that the Appellant was not arrested by police officers but by the people of Kumbura Village while the Appellant maintained that he was not arrested at the scene of the crime but by police officers when he honored the invitation of the District Head of Birni Kudu and he referred to the case of Etisi Vs State supra. Counsel stated that there was thus nothing upon which to decide which of the evidence on the manner of the arrest of the Appellant to believe and that failure to call a vital witness can be fatal to the prosecution in a criminal trial and he referred to the cases of Akawo Vs State supra, Ibrahim Vs State (2018) LPELR-46391(CA), Sule Vs State (2013) LPELR-22323(CA).
Counsel stated that the Respondent also failed to tender the bullet extracted from the body of the first prosecution witness, the gun allegedly used in shooting the first prosecution witness, the sticks and other weapons used in beating the first and second prosecution witnesses, the sum of money allegedly stolen and the hospital card or medical evidence from the Birni Kudu General Hospital where the first prosecution witness said he was taken to as a result of the injuries he sustained in the course of the robbery. Counsel stated that the testimonies of the first and second prosecution witnesses were riddled with contradictions and he traversed through the evidence of both witnesses and highlighted the said contradictions. Counsel stated that the evidence of the second prosecution witness contained impossible and incredible narrations and that the lower Court ought to have rejected the narrations, rather than embellish them as it did in its deliberations in the judgment, and he referred to the case of Aliu Vs State (2014) LPELR-23253(CA).
Counsel stated further that the lower Court rejected the defence of alibi put up by the Appellant in his evidence on the basis of speculation and conjectures and there was no evidence to sustain or support the grounds upon which the lower Court pooh-poohed the case of the Appellant on the alibi. Counsel stated that the Respondent led no evidence to show that the allegations against the Appellant were investigated by the police and no police officer was called as a witness in the lower Court to tender the outcome of such investigation and that this supports the assertion of the Appellant in his evidence that the whole robbery allegation against him was a frame up. Counsel urged that Court to find that the lower Court was in error when it found that the Respondent proved the case against the Appellant beyond reasonable doubt and to resolve the issue for determination in favour of the Appellant.
Counsel concluded his submissions by praying the Court to find merit in the appeal and to accordingly allow same, set aside the judgment of the lower Court and discharge and acquit the Appellant.
In his response, Counsel to the Respondent adopted the sole issue for determination formulated by Counsel to the Appellant and he traversed through the evidence led by the two prosecution witnesses and by the Appellant. Counsel too reiterated the three ingredients of the offence of armed robbery and conceded that the onus was on the Respondent to prove the three ingredients beyond reasonable doubt, but noted that prove beyond reasonable doubt was not the same as prove beyond all shadow of doubt and he referred to the cases Osetola Vs State (2012) 17 NWLR (Pt 1329) 251, Olayinka Vs State (2007) 9 NWLR (Pt 1040) 561, Osuagwu Vs State (2009) 1 NWLR (Pt. 1123) 523, Alabi Vs State (1993) 7 NWLR (Pt 307) 511 and Michael Vs State (2008) 13 NWLR (Pt 1104) 361. Counsel also referred to the cases of Igabele Vs State (2006) 6 NWLR (Pt. 975) 100 and Ojo Vs FRN (2008) 11 NWLR (Pt 1099) 67 in reiterating the three established ways of proving the guilt of an accused person and noted that the Appellant did not contest the first two ingredients of the armed robbery and that the contest was only in respect of the third ingredient.
Counsel stated that the evidence led by the Respondent through the first and second prosecution witnesses prove the third ingredient, i.e. that the Appellant was one of the robbers who committed the robbery, and the offence of conspiracy beyond reasonable doubt and he traversed through the evidence of the two witnesses and stated that the finding of the lower Court thereon was apposite. Counsel stated that it was incorrect, as asserted by Counsel to the Appellant, that the police officers or the persons who arrested the Appellant, were vital witnesses in the circumstances of this case and that the several case law authorities relied on by the Counsel did not decide as such and that they only listed police officers who made the arrest of an accused person as one of the possible necessary witnesses in a criminal trial. Counsel stated that to hold otherwise will be to defeat the principle established by the Supreme Court that the evidence of a single credible witness was sufficient to establish a case beyond reasonable doubt and he referred to the case of Sule Vs State supra.
Counsel stated that the two prosecution witnesses were eye witnesses and the victims of the robbery and that they had known the accused person in the neighbourhood even before the robbery incident. Counsel stated that the Respondent was not duty bound to call all the persons who knew about the robbery incident in the neighbourhood as witnesses and its duty was to present sufficient credible evidence to prove the offence against the Appellant and he referred to the cases of Olabode Vs State (2009) 11 NWLR (Pt. 1152) 254 and Osuagwu Vs State supra. Counsel considered some of the case law authorities cited by Counsel to the Appellant on the non-calling of the persons who arrested the Appellant to testify and stated that their facts and circumstances were different and they were inapplicable to this case.
Counsel stated that the suggestion of Counsel to the Appellant that the failure to tender the bullet extracted from the body of the first prosecution witness, the gun allegedly used in shooting the first prosecution witness, the sticks and other weapons used in beating the first and second prosecution witnesses was fatal is erroneous. Counsel stated there is no law requiring the tendering of the weapons used in an armed robbery attack before the guilt of the accused person can be established, and that it depends on the facts and circumstances of each case and that where there are clear facts establishing the case against an accused person, the absence of the weapons will not change the course of events and he referred to the cases of Olayinka Vs State (2007) 9 NWLR (Pt 1040) 561, Sakiru Vs The State (2019) LPELR-46865(CA), Simon Vs State (2017) LPELR-41988(SC) and Awosika Vs State (2018) LPELR-44351(SC).
Counsel proceeded to debunk the contentions of Counsel to the Appellant on the presence of contradictions in the evidence of the two prosecution witnesses on material facts and on the presence of impossible and incredulous narrations in the evidence of the second prosecution witness and stated that the contradictions, if any, were not on material facts and were unsubstantial and were thus not fatal and he referred to the cases of Ochemaje Vs State (2008) 15 NWLR (Pt. 1109) 57 and Idiok Vs State (2006) 12 NWLR (Pt 993) 1. Counsel stated that the lower Court was correct in rejecting the defence of alibi put forward by the Appellant as same was raised in his evidence at the trial for the first time and that it was clear from the evidence of all the witnesses that the matter was reported to the Police and who investigated same and that it was the investigation that led to arraignment of the Appellant. Counsel urged the Court to resolve the sole issue for determination in favour of the Respondent.
Counsel concluded his arguments by praying the Court to find no merit in the appeal and to dismiss same and affirm the judgment of the lower Court and the conviction and sentence passed on the Appellant.
The Appellant, as the first accused person, was charged along one other and other persons at large with two counts of conspiracy to commit armed robbery and armed robbery. The Courts have stated that conspiracy as an offence is the agreement by two or more persons to do or cause to be done an illegal act or a legal act by illegal means and that the actual agreement alone constitutes the offence of criminal conspiracy and it is unnecessary to prove that the act has in fact been committed – Ofordike Vs State (2019) LPELR 46411(SC), Shola Vs State (2020) 8 NWLR (Pt 1727) 530, Opeke Vs State (2021) 1 NWLR (Pt 1758) 570, Sani Vs State (2021) 5 NWLR (Pt 1770) 502 and Igwe Vs People of Lagos State (2021) 7 NWLR (Pt 1776) 425. Conspiracy to commit an offence is a separate and distinct offence and it is independent of the actual commission of the offence to which the conspiracy is related. It is based on common intent and purpose and once there is such evidence to commit the substantive offence, it does not matter what any of the conspirators did – Ajuluchukwu Vs State (2014) 13 NWLR (Pt 1425) 641, Akogwu Vs State (2018) 3 NWLR (Pt 1605) 137, Saminu Vs State (2019) LPELR 47622(SC), Martin Vs State (2020) 5 NWLR (Pt 1716) 58 and Fekolomoh Vs State (2021) 6 NWLR (Pt. 1773) 461.
Proof of actual agreement is not always easy to come by and thus a trial Court can infer conspiracy and convict on it if it is satisfied that the actual person pursued, by their acts, the same object one performing one part of the act and the other performing the other part of the same act so as to complete their unlawful design – Tanko Vs State (2008) 16 NWLR (Pt 1114) 597, Adeyemi Vs State (2018) 5 NWLR (Pt 1613) 482, Olakunle Vs State (2018) 6 NWLR (Pt 1614) 91, Ayinde Vs State (2019) LPELR 47835(SC), Ngede Vs Nigerian Army (2021) 3 NWLR (Pt. 1762) 1, Igwe Vs People of Lagos State (2021) 7 NWLR (Pt 1776) 425.
The proper approach to an indictment which contains a conspiracy charge and the substantive charge is to first deal with the latter, that is the substantive charge, and then proceed to see how far the conspiracy count had been made out in answer to the fate of the charge of conspiracy – Osetola Vs State (2012) 17 NWLR (Pt. 1329) 251 and Jimoh Vs State (2014) 10 NWLR (Pt. 1414) 105, Agugua Vs State (2017) 10 NWLR (Pt 1573) 254.
In considering the complaints of the Appellant in this appeal therefore, this Court will start with the findings made by the lower Court on the substantive offence of armed robbery, and from there consider whether the charge of conspiracy was properly sustained by the Respondent.
Now, it is settled in our jurisprudence that the burden of proving that any person has committed a crime or a wrongful act rests on the person who asserts it. Where the commission of crime by a party is in issue in any proceedings, it must be proved beyond reasonable doubt. In discharging the burden, all the essential ingredients of the crime alleged must be proved beyond reasonable doubt. The burden never shifts. Therefore, if in a criminal trial, on the whole of the evidence before it, the Court is left in a state of doubt, the prosecution would have failed to discharge the burden of proof which the law lays upon it and the defendant will be entitled to an acquittal.
It must, however, be stated that proof beyond reasonable doubt is “not proof to the hilt” and is thus not synonymous with proof beyond all iota of doubt or proof of a mathematical certainty. Thus, 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 will be said to have been proved beyond reasonable doubt – Isah Vs State (2018) 8 NWLR (Pt 1621) 346, Ezeani Vs Federal Republic of Nigeria (2019) 12 NWLR (Pt 1686) 221, Philip Vs State (2019) 13 NWLR (Pt 1690) 209, Sanmi Vs State (2019) 13 NWLR (Pt 1690) 551 and Itodo Vs State (2020) 1 NWLR (Pt. 1704) 1.
It is trite that for a prosecution to secure a conviction for armed robbery, it must establish beyond reasonable doubt the cumulative presence of the following ingredients of the offence: (i) that there was robbery or series of robberies; (ii) that the robbery was an armed robbery carried out with firearms or offensive weapons; and (iii) that the person charged with the offence was one of the robbers or implicated therein. The onus on the prosecution to prove the cumulative presence of the ingredients cannot be compromised in any respect. The onus does not shift at all as it rests squarely on the prosecution throughout the case. Where the prosecution fails to prove any of the ingredients, the offence of armed robbery would not have been established beyond reasonable doubt and the accused person would be entitled to be discharged and acquitted – Dawai Vs State (2018) 5 NWLR (Pt 1613) 499, Orisa Vs State (2018) 11 NWLR (Pt 1631) 453, Amos Vs State (2018) LPELR 44694(SC), John Vs State (2019) LPELR 46936(SC), Ayinde Vs State (2019) LPELR 47835(SC), Iorapuu Vs State (2020) 1 NWLR (Pt 1706) 391.
The lower Court found that the Respondent led credible evidence to prove the three ingredients of the offence of armed robbery against the Appellant beyond reasonable doubt. In other words, the lower Court found that on or about the 5th day of August, 2016 in Kumbura Fulani Settlement in Birni Kudu Local Government Area of Jigawa State one Isyaku Abubakar was indeed robbed, that the robbery was carried out with offensive weapons, and that the Appellant participated, with other persons, in the robbery. As rightly pointed out by Counsel to the Respondent, the Appellant has not contended, in this appeal, against the findings of the lower Court that there was a robbery and that the robbery was an armed robbery carried out with offensive weapons. These findings are conclusive and binding on the parties in this appeal and cannot be interfered with by this Court – Daniel Vs Federal Republic of Nigeria (2015) 13 NWLR (Pt. 1475) 119, Ezeani Vs Federal Republic of Nigeria (2019) 12 NWLR (Pt. 1686) 221 and Okeremute Vs State (2021) 16 NWLR (Pt. 1803) 587.
The contention of the Appellant in this appeal is against the finding of the lower Court that he was one of the robbers who participated in the robbery. It is settled law that in criminal trials, the guilt of an accused person for or the fact of his participation in the commission of the offence charged can be established in any or all the following ways (a) the confessional statement of the accused person wherein he or she admits the commission of the offence and which has been duly tested, proved and is unequivocal and admitted in evidence; (b) circumstantial evidence which is complete, cogent and unequivocal and which leads to the irresistible conclusion that the accused committed the offence; and (c) evidence of an eye witness who saw the accused person committing the offence charged. Any one of the methods is sufficient – Philip Vs State (2019) 13 NWLR (Pt. 1690) 209, Hamza Vs State (2019) 16 NWLR (Pt. 1699) 418, Alao Vs State (2019) 17 NWLR (Pt. 1702) 501, Itodo Vs State (2020) 1 NWLR (Pt 1704) 1 and Iorapuu Vs State (2020) 1 NWLR (Pt 1706) 391.
Reading through the records of appeal, it is obvious that the Respondent relied on the eye witness accounts of the two victims of the robbery in proving the fact of the participation of the Appellant in the armed robbery and this was the basis upon which the lower Court found the Appellant guilty and convicted him. The lower Court rejected the defence of alibi put forward by the Appellant in his evidence on the ground that he did not put up the defence at the earliest possible time when he was questioned and arrested. The complaint of the Appellant in this appeal is against the evaluation of evidence carried out by the lower Court. The Appellant desires this Court to hold in this appeal that the finding of the lower Court that he participated in the robbery, based on the evidence adduced at the trial, is perverse and to overturn the finding and to consequently set aside his conviction and sentence.
The contention of the Appellant against the evaluation of evidence carried out by the lower Court was that the lower Court was in error when it found and held that the Respondent led sufficient evidence in proof of the allegation that he participated in the armed robbery beyond reasonable doubt in view the paucity of evidence and contradictions in the evidence led by the Respondent and fact of alibi that he raised in his defence. The law is that if an appellant asserts that the prosecution failed to prove his guilt beyond reasonable doubt before conviction, it is for him to establish that it is so and it is the duty of an appeal Court to examine the assertion against the whole background of the case and in particular, against the evidence leading to the guilt of the appellant. If at the end of the whole of the case, there is reasonable doubt created by the evidence given either by the prosecution or the appellant, as to whether the offence was committed by him, the prosecution has not made out the case and the appellant is entitled to an acquittal – Oteki Vs AG Bendel State (1986) All NLR 371, Ekpe Vs State (1994) 12 SCNJ 131 and Udosen Vs The State (2007) All FWLR (Pt 356) 669.
As stated earlier, the Respondent called the two victims of the armed robbery, the first prosecution witness and his senior sister, the second prosecution witness, as the witnesses by whom it sought to establish its case against the Appellant. The two witnesses identified the Appellant as one of the about fifteen armed robbers that attacked them. The first prosecution witness testified that he knew the Appellant and that the Appellant came along with some other persons to his house armed with gun and sticks and beat him and took away the sum of N350,000.00 and he was shot on his left leg and he was hospitalized at Birni Kudu General Hospital as a result of the robbery incident. Under cross-examination, the witness reiterated that he knew the accused person and that it was him, his two wives and a child that were home at time of the incident and that he was taken to the hospital by the Police.
The second prosecution witness testified that she was in the house when the Appellant in company of other armed with guns came and they started shooting and that when she came out of her room she “got hold” of the Appellant and held him as she recognized him and that other assailants hit her with a stick and this made her loose her grip of the Appellant. She gave evidence that the Appellant took away her money in the sum of N60,000.00 and her hand set and that she went to Kumbura Village where people came to her rescue and the Appellant was arrested and the first prosecution witness was taken to the hospital. Under cross-examination, the witness stated that the first prosecution witness was her junior brother and that she was in the house with him when the incident happened and that she recognized the Appellant and held him. This was the totality of the evidence led by the Respondent in proof of its case against the Appellant.
The Appellant, in his defence, testified that he knew the two prosecution witnesses and they were neighbors and that the two prosecution witnesses were not on good terms with his parents and had promised to take it out on him and his senior brother, no matter the length of time it took and this was why they implicated him in the robbery incident. He gave evidence that he was a farmer and a cattle rearer and that on the date and time of the incident he was at his farm and that the District Head of Birni Kudu sent the Ward Head to call him and that he honored the invitation. He stated that the District Head asked him for him name and that he confirmed that he was Hamza and that the District Head informed him that he had been accused of committing armed robbery against his neighbors. He testified that he denied the allegation and that the District Head told him that if he did not commit the offence, God would exonerate him, and that he was later arrested by police officers from Birni Kudu Police Station and was subsequently transferred to the State Criminal Investigation Department in Dutse. He stated that he was beaten by policemen at both Police Stations and that he maintained his innocence throughout the torture. These pieces of evidence of the Appellant were not discredited or disparaged under cross-examination.
Now, a read through the evidence of the two prosecution witnesses confirm the presence of a contradiction, as asserted by Counsel to the Appellant. The first prosecution witness testified it was only him and his two wives and a child that were in the house at the time of the robbery incident. The second prosecution witness gave evidence under cross-examination that she was neither a wife nor a child of the first prosecution witness, but his elder sister and that she was in the house at the time of the robbery incident. This contradiction was not cleared or explained by either of the two witnesses under re-examination.
On the other side, the evidence of the Appellant of not partaking in the armed robbery or being anywhere near the scene of the crime at the time of its commission was not contested or discredited under cross-examination, thus making it unchallenged. It is settled law that a Court is obliged to treat unchallenged evidence on a material fact as true, cogent and credible and to act on it, unless the evidence is patently incredible – Olude Vs State (2018) LPELR 44070(SC), Lanre Vs State (2018) LPELR 45156(SC), Daniel Vs Ayala (2019) LPELR 49344(SC), Rabe Vs Federal Republic of Nigeria (2019) 4 NWLR (Pt. 1662) 312 and Onyiorah Vs Onyiorah (2019) 15 NWLR (Pt 1695) 227.
What the above means is that the totality of the credible evidence led before the lower Court by the Respondent in proof of the assertion that the Appellant took part in the armed robbery, and on which the lower Court could rely to make a finding, was the oral evidence of the first and second prosecution witnesses, who were victims of the robbery, with its unresolved contradiction and nothing more. And against this was the unchallenged evidence of the Appellant that he was not anywhere near the scene of the robbery and did not participate in the robbery. It was on the basis of these pieces of evidence that the Respondent invited the lower Court to make finding that it proved the allegation of commission of a crime against the Appellant beyond reasonable doubt. The Respondent called on the lower Court to prefer the evidence of its two witnesses over the evidence of the Appellant, without it having made any attempt to dent or disparage the case of the Appellant, and the lower Court did so.
The lower Court, with respect, either forgot or was oblivious of the rudimentary and elementary difference between the evaluation of evidence in a civil matter and the evaluation of evidence in a criminal matter. It is settled law that the burden of proof in a civil matter is discharged on a balance of probabilities or preponderance of evidence, whilst in a criminal matter it is by proof beyond reasonable doubt. The phrase proof ‘beyond reasonable doubt’ means proof that has attained that level of certainty, credibility and assuredness which leaves the Court without any vestige of lingering doubts regarding the culpability or otherwise of the accused person and with regards to the particular offence with which he has been charged – Afolalu Vs State (2010) 16 NWLR (Pt 1220) 584. It means proof of an offence with the certainty of the Criminal Law, i.e. that the offence in question has been committed and that no other person but the accused person on the evidence committed the offence. Where the evidence conclusively establishes these facts, the offence is said to have been proved beyond reasonable doubt – Edwin Vs State (2014) LPELR 24234(CA).
It is not a simple case of preferring the evidence of the prosecution witnesses over that of the defence witness, as obtains in civil matters. In State Vs Gwangwan (2015) 13 NWLR (Pt. 1477) 600, the Supreme Court stated that proof beyond reasonable doubt in the realm of criminal justice connotes such proof as precludes every reasonable hypothesis, except that which it tends to support and it is proof which is wholly consistent with the guilt of the accused person and inconsistent with any other natural conclusions. In Okeremute Vs State (2021) 16 NWLR (Pt 1803) 587, the Supreme Court reiterated that proof beyond reasonable doubt means proof as satisfies the judgment and conscience of a Judge as a reasonable man and applying his reason to the evidence before him, that the crime charged has been committed by the defendant and so satisfies him as to leave no other reasonable conclusion possible.
The normal course of events with any crime is that the victim of a crime, or an eye witness or someone on behalf of the victim, makes a report of the occurrence of the crime to the Police or other authorized body of persons and the Police or the authorized body investigates the report, to establish that the crime did indeed occur, the circumstances of its occurrence and to confirm, identify and arrest the offender or offenders identified by the victim and/or by the eye witness or to whom the evidence discovered during investigation points. The evidence led by the two prosecution witnesses were not better than mere allegations of commission of a crime against the Appellant, and this is particularly more so because of the unchallenged evidence by the Appellant of a long standing feud between his parents and the prosecution witnesses and of the threat made by the prosecution witnesses to take it out on him and his senior brother and that this was why the prosecution witnesses implicated him in the armed robbery incident.
The Respondent led no evidence showing how the Appellant was arrested by the Police and or that the Police carried out any investigation of the allegation made against him by the two prosecution witnesses to ascertain if indeed the Appellant participated in committing the alleged crime. There is a wide difference between allegation of crime and investigation of crime – Dodo Vs Economic and Financial Crimes Commission (2013) 1 NWLR (Pt 1336) 468, Ajayi Vs State (2013) 9 NWLR (Pt 1360) 589. Allegation is the making of the complaint of commission of a crime, with its details, while investigation is the process of undertaking a careful search, study, close inquiry, scrutiny, detailed examination of the allegation to ascertain the true facts of the crime – Dangabar Vs Federal Republic of Nigeria (2014) 12 NWLR (Pt 1422) 575.
In other words, “investigation” is a careful examination, study, inspection, exploration, analysis or appraisal or search in order to discover facts or gain information. It is that process of collecting information, inquiry into the information and a detailed examination of the allegation in order to reach the goal of ascertaining the truth of the allegation. A criminal investigation thus, refers to the process of collecting information (or evidence) about a crime in order to (i) determine if the crime has been committed; (ii) identify the perpetrator; (iii) apprehend the perpetrator; (iv) provide evidence to support a conviction on it – Chedi & Anor Vs Attorney-General of Federation (2006) LPELR-11806(CA), Eyonaowa Vs Commissioner of Police (2014) LPELR-22339(CA) and Liman Vs State (2016) LPELR 40260(CA). It is the process by which sufficient evidence is gathered before an accused person can be prosecuted in Court – Nkemjirika Vs Inspector General of Police (2019) LPELR-47786(CA).
Once criminal allegations are made against a citizen, it is a constitutional and statutory duty of the police to investigate it and investigations of crimes by the Police, particularly of serious capital offences, which are to be prosecuted in law Courts must be professional, thorough and diligent – Jammal Vs State (1999) 12 NWLR (Pt. 632) 582, Aigbadion Vs State (2000) 7 NWLR (Pt. 666) 686, Onah Vs Okenwa (2010) 7 NWLR (Pt. 1194) 512, Atiku Vs State (2010) 9 NWLR (Pt. 1199) 241.
It is incumbent on the prosecution in any criminal trial, particularly more so where the charge involves a capital offence, to lead evidence on the nature and tenure of the investigation carried out and its outcome. This is what determines if a crime was indeed committed and that the accused person was the perpetuator of the crime. It is only after investigations are completed that the prosecuting authority determines whether to prosecute an accused suspect or not – Umoera Vs Commissioner of Police (1977) LPELR-3371(SC).
By not leading any evidence of investigation carried out by the Police into the allegations of the prosecution witnesses, there was nothing before the lower Court showing that the story of the prosecution witnesses transmitted from the state of being a mere allegation to the state of being a possible statement of fact and that the Appellant indeed participated in committing the alleged crime – Liman Vs State (2016) LPELR 40260(CA). It is by the outcome of investigations that the prosecution debunks the presumption of innocence that enures in favour of an accused person. In State Vs Onwueriaku (2017) LPELR-42613(CA), this Court made the point thus:
“…There is a presumption of innocence in favour of the accused… It therefore behooves on the prosecution to present a complete and full picture of the result of investigation in order not to give room for reasonable doubt as to the guilt of the accused. If the accused at the time of his arrest and interrogation points to another person as the culprit who committed the crime, and claims innocence, the police should investigate his side of the story. The constitutional presumption of innocence in favour of the accused has to be dislodged and this can only be done by complete investigation as opposed to haphazard investigation. Every reasonable doubt in the prosecution’s case against the accused has to be resolved in favour of the accused… An incomplete investigation creates room for reasonable doubt as to the guilt of the accused. Such a doubt therefore has to be resolved in favour of the accused.”
There was thus nothing credible presented by the Respondent, outside the allegations of commission of a crime contained in the testimonies of the two prosecution witnesses, to debunk the evidence of the Appellant and to rebut the presumption of innocence that enured in his favour. The voyage embarked upon by the lower Court in his deliberations in the judgment to fault the evidence of the Appellant was propelled by assumptions, speculation and conjectures, and not by proved and ascertained facts. It is elementary that a judicial inquiry is allergic to speculations and conjectures and they cannot be relied upon by a Court of law – Long-John Vs Blakk (1998) 5 SCNJ 68, Orhue Vs NEPA (1998) 7 NWLR (Pt 577) 187. In Ivienagbor Vs Bazuaye (1999) 9 NWLR (Pt. 620) 555, Uwaifo, JSC made the point that “… speculation is a mere variant of imaginative guess which, even where it appears plausible, should never be allowed by a Court of law to fill any hiatus in the evidence before it.”
It is rudimentary that an allegation of crime against a person only raises mere circumstances of suspicion against that person and suspicion does not amount to legal proof of the commission of a crime. This point has been made over and over by the Courts – see for example Abeke Vs The State (1975) 9-11 SC (Reprint) 60, Bozin Vs State (1985) 2 NWLR (Pt. 8) 465, Babalola Vs State (1989) 4 NWLR (Pt. 115) 264, Obiakor Vs State (2002) 10 NWLR (Pt 776) 612, Abacha Vs The State (2002) 11 NWLR (Pt. 779) 437, Dung Vs State (2015) 9 NWLR (Pt 1465) 503, Dike Vs State (2022) 2 NWLR (Pt. 1813) 1. In Adeniyi Vs Governing Council of Yaba College of Technology (1993) 6 NWLR (Pt 300) 426, Karibi-Whyte, JSC stated that “suspicion, however strong, cannot support a conducive inference of guilt. It is still a wavering accusing finger of suspicion, guilt can only be accepted when the wavering finger stops wavering and stands stringent and erect pointing unwavering at the accused.” While an allegation of crime commences the wavering of an accusing finger at an accused person, it is the investigation of the allegation and the ascertainment of facts establishing that the crime was indeed committed and that it was the accused person that committed that crime that makes the wavering finger stand “stringent and erect pointing unwavering at the accused”.
Failure to investigate or an improper investigation of an allegation of crime has been known to be an infamous albatross to the criminal prosecution of the crime – Al-Mustapha Vs State (2013) 17 NWLR (Pt 1383) 350.
It is correct that the prosecution, the Respondent herein, is not required to call a host of witnesses to prove the ingredients of an offence. However, the law compels it to call a vital witness: a witness whose evidence will prove a vital point or ingredient of an offence either way. If the prosecution defaults in calling such a vital/material witness, the failure will be fatal to its case which must be proved beyond reasonable doubt – Sale Vs State (2016) 3 NWLR (Pt. 1499) 392, Itu Vs State (2016) 5 NWLR (Pt. 1506) 443, Smart Vs State (2016) 9 NWLR (Pt. 1518) 447, Abokokuyanro Vs State (2016) 9 NWLR (Pt. 1518) 520, Ayeni Vs State (2016) 12 NWLR (Pt. 1525) 51, Nweke Vs State (2017) 15 NWLR (Pt. 1587) 120. Presenting evidence that an investigation was carried out by the Police into the allegation against the Appellant and the details of the investigation were essential and vital in the circumstances of this case and these constituted either the Investigating Police Officer or a member of the team of investigators into a vital witness. Neither was called by the Respondent.
In view of the failure of the Respondent to lead credible evidence on whether the Police investigated the allegation of the two prosecution witnesses that the Appellant participated in the armed robbery and/or on the outcome of such Police investigation, the finding of the lower Court that the Respondent proved its case against the Appellant on the two counts of offences beyond reasonable doubt on the strength of the evidence of the two prosecution witnesses was baseless. The need for trial Courts to be very circumspect in criminal trials and to exercise great care in convicting an accused person is one of the main signposts of our criminal jurisprudence and it is captured in the aphorism that it is better for ten guilty people to be set free than for one innocent person to be convicted – Odogwu Vs State (2013) 14 NWLR (Pt. 1373) 74.
It settled law that the conviction of a man for an offence must be seen as the product of prudent and logical thinking, based upon admissible evidence, in which the fact leading to his conviction are clearly found and the legal deduction therefrom carefully and rightly made and it cannot be allowed to stand if it is founded upon a misapprehension, misdirection and/or error of law. The conviction of the Appellant by the lower Court was wrongful and it is liable to be set aside.
In conclusion, this Court finds merit in the appeal and it is hereby allowed. The judgment of the High Court of Jigawa State delivered in Case No. JDU/87C/2017 by Honorable Justice Umar M. Sadiq on the 28th of October, 2020 together with the conviction of and sentences passed on the Appellant therein are set aside. In its stead is entered a judgment acquitting and discharging the Appellant on the two counts of offences of conspiracy to commit armed robbery and armed robbery. These shall be the orders of the Court.
ABUBAKAR MU’AZU LAMIDO, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother, HABEEB ADEWALE O. ABIRU, JCA, and I agree with his reasoning and conclusion that the appeal is meritorious and is accordingly allowed. I too allow the appeal and abide by all other consequential orders as contained in the lead judgment.
USMAN ALHAJI MUSALE, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, HABEEB ADEWALE. O. ABIRU, JCA. I am in agreement with the issues considered and resolved by His Lordship. I have nothing more to add. I abide by the conclusions reached therein.
Appearances:
Siaka Danjuma, with him, E. O. Kennedy. For Appellant(s)
Dr. Musa Adamu Aliyu, Attorney General Jigawa State, with him, Jamilu Muhammad, DRPS, Binta Yusuf Abubakar, CSC and A. H. Hassan, PSC, Ministry of Justice, Jigawa State For Respondent(s)