JOHN v. STATE (2020)

JOHN v. STATE

(2020)LCN/14183(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Monday, May 18, 2020

CA/C/296C/2016

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Philomena Mbua Ekpe Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

EMMANUEL JOSEPH JOHN APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

CONVICTION ON CIRCUMSTANTIAL EVIDENCE

It is also correct as contended by the appellant’s counsel that circumstantial evidence which would support conviction must be unequivocal and positive; it must point irresistibly at the guilt of the accused, besides, there must be no other co-existing circumstances throwing doubt on the inference that the accused and no other person is the guilty party. See Stephen Ukorah Vs State (1977) 5 SC 167, Valentine Adie Vs The State (1980) 1-2 SC 116, Joseph Lori Vs The State (1980) 8-11 SC 87 and Gabriel Vs The State (1989) 12 SC 129 at 133. PER SHUAIBU, J.C.A.

THE DOCTRINE OF RECENT POSSESSION

The provision of Section 167 (a) of the Evidence Act, 2011 empower the Court to presume that a man who is in possession of stolen goods soon after the theft to be either the thief or has received the goods knowing them to be stolen unless he can account for his possession. For this doctrine to operate there ought to be evidence;
1. That the accused was found in possession of some goods.
2. That those goods where recently stolen.
3. That the accused failed to account for his possession. SeeEze Vs State (1985) LPELR – 1189 (SC). PER SHUAIBU, J.C.A.

FACTOR TO BE CONSIDERED FOR A CIRCUMSTANTIAL EVIDENCE TO CONSTITUTE SUFFICIENT PROOF OF THE GUILT OF AN ACCUSED PERSON

The law is settled that in drawing an inference and reaching a conclusion of guilt from circumstantial evidence leading to the conviction of an accused, it is necessary to be sure that there are no other co-existing circumstances which would weaken or destroy the inference. Thus, for circumstantial evidence to constitute sufficient proof of the guilt of the accused, the evidence must be conclusive and unequivocal, convincingly accurate as to irresistibly point to no other direction but the guilt of the accused. See Akinmoju Vs State (2000) 6 NWLR (Prt 662) 608 at 618.

In Onah Vs The State (1985) 3 NWLR (Prt 12) 236 at 244, Obaseki, JSC observed as follows:-
“The High Court and all Courts of law are duly bound to give critical examination to evidence adduced before them and ensure that the innocent are not punished or the guilty set free. They should act on evidence and not on hunches, rumours, or suspicion so as to ensure that justice in its purest form is administered in the courts to all the sundry.” PER SHUAIBU, J.C.A.

DUTY OF THE PROSECUTION IN A CRIMINAL TRIAL

It is common ground that in all criminal prosecution, it is the duty of the prosecution to prove its case beyond reasonable doubt. It is not essential to prove the case with absolute certainty but the ingredients of the offence charged must be proved as required by law and to the satisfaction of the Court. See Agbachom Vs The State (1970) 1 ALL NLR 69 a5 76, Okpunor Vs The State (1990) 7 NWLR (Prt 1643) 581 at 593 and Obiakor Vs State (2002) 6 SC (Prt 11) 33 at 38. PER SHUAIBU, J.C.A.

THE CRIMINAL OFFENCE OF RAPE

A man is said to commit rape when he has sexual intercourse with a woman in any of the following circumstances: –
(a) Against her will
(b) Without her consent
(c) With her consent when her consent has been obtained by putting her in fear of death of or hurt,
(d) With her consent when the man knows that he is not her husband and that her consent was given because she believes that he is another man to whom she is or believes herself to be lawfully married,
(e) With her consent when she is under fourteen years of age or of unsound mind.
Learned counsel of the respondent has correctly submitted that the most important and essential element of the offence of rape is penetration. Thus, the Court will deem that sexual intercourse is complete upon proof of penetration of the penis into the vagina. Even the slightest penetration is sufficient to constitute the act of sexual intercourse. See Aliyu Vs State (2019) 11 NWLR (Prt 1682) 108 at 136-137, Isa Vs State (2016) 6 NWLR (prt 1508) 243 and Lucky Vs State (2016) 13 NWLR (Prt 1528) 126. PER SHUAIBU, J.C.A.

MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Akwa Ibom State, sitting at Etinan Judicial Division delivered on 27th June, 2016 wherein the appellant was convicted and sentenced to death by hanging on count one and ten years imprisonment in count two.

The appellant and others at large were arraigned before the lower Court on two counts charge of armed robbery with offensive weapons and rape contrary to and punishable under Sections 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act Cap R 11 Vol. 14 of the Laws of the Federation, 2004 and 367 of the Criminal Code Cap 38 Vol. 2 Laws of Akwa Ibom State 2000. The trial commenced on 30th January, 2013 in which the prosecution fielded 4 witnesses and tendered several exhibits. The appellant on his part, testified in his defence and called two other witnesses. At the close of the case, both learned counsel addressed the Court. The learned trial judge thereafter delivered his judgment on 27th June, 2016 whereupon he convicted and sentenced the appellant on both counts.

Dissatisfied with the judgment, the appellant appealed to this Court on 4th August, 2016. The said notice of appeal contains five grounds of appeal out of which the learned counsel for the appellant has distilled three issues for the determination of this appeal.

On 18th March, 2020 when this appeal was argued, learned counsel for the appellant S. U. Ndah. Esq identified and adopted the appellant’s brief of argument filed on 30th October, 2017 but deemed on 18th March, 2020 in which the three issues for determination are as follows:-
1. Whether the prosecution had proved the charge of armed robbery against the accused person beyond reasonable doubt to warrant the conviction of the accused person in count one? (Distilled from ground 1 and 2)
2. Whether the learned trial judge properly evaluated the evidence before coming to its conclusion convicting the appellant of armed robbery.
3. Whether the prosecution has proved the charge of rape against the appellant beyond reasonable doubt to warrant his conviction of same.

In the respondent’s brief of argument filed on 19th November, 2018 but further deemed on 18th March, 2020. Learned

Attorney-General of Akwa Ibom State, Uwemedimo Nwoko, Esq. identified and adopted the respondent’s brief of argument wherein two issues were identified for the determination of this appeal. These issues are:-
1. Whether the offence of Armed Robbery in count 1 of the information was not proved beyond reasonable doubt against the appellant.
2. Whether the offence of rape in count 2 of the information was not proved beyond reasonable doubt against the appellant?

A careful perusal of the two sets of issues reveals that they are identical except that the two issues formulated by the respondent are apt and concise. I shall therefore determine this appeal based on the said two issues formulated for the respondent.

On the first issue, learned counsel for the appellant submitted that the prosecution has failed to prove the essential elements required to establish the offence of armed robbery as the ownership of both the stolen money and three phones were not linked to the persons they purport to be. Although, the prosecution is not required to call a particular witness but it is incumbent on the prosecution to call one Elder Etoidem Asuquo

Umoh being the alleged victim of the armed robbery. Thus, the failure to call this vital witness is fatal to the prosecution’s case. He referred to Archibong Vs The State (2004) NWLR (Pt 853) 488.

Learned counsel submitted further that none of the evidence led sufficiently link the appellant with the offence of armed robbery. The appellant was not seen by either PW1 or PW2. That being the position, the findings of the trial Court to the effect that the appellant was in possession of a Nokia Handset allegedly stolen during the armed robbery operation is perverse. Thus, the doctrine of recent possession as provided in Section 167 of the Evidence Act, 2011 is inappropriate in the circumstance. And since the evidence led is at variance with the charge, it leaves room for reasonable doubt as to the guilt of the appellant which doubt ought to have been resolved in his favour.

He finally submitted that there was no direct evidence against the appellant and the evidence been relied on in convicting the appellant for the alleged armed robbery being circumstantial in nature, same according to the learned counsel must be cogent, complete and unequivocal. It must

be compelling and lead to the irresistible conclusion that the accused is the culprit. He referred toOrji Vs The State (2008) Vol. 163 LRCN 58 to the effect that the facts must be incompatible with the innocence of the accused and also incapable of explanation upon any other reasonable hypothesis than that of his guilt.

In response, learned counsel for the respondent submitted that the trial Court was right in convicting the appellant for the offence of armed robbery. He referred to the evidence of PW1, PW2, PW3 and PW4 in contending that the prosecution had established that there was robbery incident and that Exhibit C qualifies as an offensive and or dangerous weapon. Also the evidence of PW1, PW2 and PW3 shows that the appellant was in possession of one of the phone stolen during the robbery incident of 22/11/2011. He conceded the fact that there was no direct evidence fixing the appellant to the scene of the crime, but relied on the doctrine of recent possession. He referred to Alufohai Vs The State (2015) Vol. 1 at 19; Olayinka Vs The State (2007) 9 NWLR (Prt 1040) 561 and Alabi Vs The State (1993) 7 NWLR (Prt 307) 551 to contend that the

prosecution had established the essential ingredients of the offence of armed robbery against the appellant.

Still in argument, learned counsel submitted that in exhibits B and G, the appellant admitted being in possession of the Nokia Phone and that his feeble attempt to deny being in possession of the said Nokia phone orally in Court was punctured by Exhibit K, a bail application tendered through DW3. It was thus submitted that the appellant having been found with one of the phones stolen during the robbery incident and in the absence of any cogent explanation as to how he came by the phone, it was safe for the trial Court to involve the doctrine of recent possession against the appellant. He referred to Okoro Vs The State (2012) Vol. 207 LRCN 108 at 137.

Under issue I, the gist of the question that calls for consideration is whether the offence of armed robbery laid against the appellant was proved beyond reasonable doubt by the prosecution as to warrant his conviction by the trial Court. Let it be said straightaway that after a careful perusal of the record of appeal, it is a common ground that there was no direct evidence against the appellant

that he took part in the alleged armed robbery. Learned trial judge has emphatically stated at page 165 of the record of appeal as follows:-
“I will begin with the offence of armed robbery. It must be emphasized on the onset that from the evidence adduced by the prosecution none of the prosecution witnesses saw the accused person commit the offence. The accused person did not also confess to the commission of the crime. The principal offence against the accused person is that he was caught with the phone stolen during the commission of the offence. This is known in law as the doctrine of recent possession.”

In the light of the above, the case turned on circumstantial evidence. It is also correct as contended by the appellant’s counsel that circumstantial evidence which would support conviction must be unequivocal and positive; it must point irresistibly at the guilt of the accused, besides, there must be no other co-existing circumstances throwing doubt on the inference that the accused and no other person is the guilty party. See Stephen Ukorah Vs State (1977) 5 SC 167, Valentine Adie Vs The State (1980) 1-2 SC 116, Joseph Lori Vs The State

(1980) 8-11 SC 87 and Gabriel Vs The State (1989) 12 SC 129 at 133.

The question is did the evidence in this case reach that standard? The trial Court said it did at page 169 of the record of appeal thus:-
“I have also carefully perused Exhibits H and I which are the extra judicial statement of the accused person’s sister and father. The said Exhibits H and I are not helpful to the case of the defense as they do not explain satisfactorily how the accused came about the stolen phone or why he attempted to escape from the police if actually the stolen phone was innocently picked up from the bush as alleged.”

The evidence which the trial Court accept as the basis of convicting the appellant for armed robbery was that PW1 spoke with the appellant through one of the stolen phones. PW3 told the Court that she placed a call to her husband’s Nokia phone line while the police mounted surveillance. And when the call was picked, the voice told her to wait. She said two boys came to pick her up but she insisted that the person who picked the call should come by himself. The two boys went back and when the receiver of the call

came out, he said “baby, sorry to keep you waiting” and he started romancing her. That it was at that point that she saw her husband’s phone in his hand.

PW3, the police who arrested the appellant gave evidence that two young men told him that they were sent by Emmanuel Joseph John and that the two boys were advised to go back and tell him that a young girl was looking for him and that the girl is alone and himself and his team went back to their hiding. While in their hiding, he saw when PW1 was trying to get the phone from the accused who resisted giving the phone to PW1. That PW1 gave them signal and they came out of hiding. When the accused sighted them, he took to his heals but was pursued and got arrested. It was in the process of pursuing the accused that he removed his T-Shirt and the Nokia phone were thrown into the crowd.

From the testimonies of the PW1 and PW3, and the cumulative effect of what they told the trial Court seemed to suggest that the Nokia phone seen with the accused person and which was thrown into the crowd was the phone belonging to her husband Ebong Asuquo Umoh, not the one robbed from Elder Etoidem

Asuquo Umoh on the charge sheet. PW1 did not tell the trial Court her husband also bears Elder Etoidem Asuquo Umoh or that the two person’s jointly own the said Nokia phone allegedly traced to the accused (now appellant). Again the description of the stolen phone was not given nor the ownership established as the purported owner(s) was not called to give evidence. It is thus, my view that the circumstantial evidence in this case is neither complete nor compelling as to lead to the irresistible consideration that the appellant commit the offence of armed robbery as charged. I therefore agree with the submission of the respondent’s counsel that the conviction of the appellant for armed robbery was based on mere suspicion which cannot however strong sustain the conviction.

Both the trial Court and the learned counsel for the respondent relied heavily on the doctrine of recent possession as the basis of convicting the appellant for armed robbery. The provision of Section 167 (a) of the Evidence Act, 2011 empower the Court to presume that a man who is in possession of stolen goods soon after the theft to be either the thief or has received the goods

knowing them to be stolen unless he can account for his possession. For this doctrine to operate there ought to be evidence;
1. That the accused was found in possession of some goods.
2. That those goods where recently stolen.
3. That the accused failed to account for his possession. SeeEze Vs State (1985) LPELR – 1189 (SC).

In the present case, the trial Court found the appellant guilty because he was unable to contradict the evidence of PW1 and PW3 which was to the effect that he resisted PW1 from taking back the phone from him. I have stated that the evidence of the prosecution which tend to show that the phone seen with the appellant was stolen during the armed robbery incident of 22/11/2011 was far from been cogent and compelling. Again, the bail application regarding a stolen phone found in possession of the appellant and which the trial Court said was at variance with the appellant’s oral evidence that he instantly picked up the phone from the bush.

The law is settled that in drawing an inference and reaching a conclusion of guilt from circumstantial evidence leading to the conviction of an accused, it is

necessary to be sure that there are no other co-existing circumstances which would weaken or destroy the inference. Thus, for circumstantial evidence to constitute sufficient proof of the guilt of the accused, the evidence must be conclusive and unequivocal, convincingly accurate as to irresistibly point to no other direction but the guilt of the accused. See Akinmoju Vs State (2000) 6 NWLR (Prt 662) 608 at 618.

The evidence of the prosecution aside from not conclusively linking the appellant to the stolen phone, the totality of the evidence was not sufficiently strong and irresistibly implicate him with the armed robbery incident of 22/11/2011. Issue 1 is therefore resolved against the

respondent.

On the second issue, learned counsel for the appellant submitted that the evidence of the prosecution particularly that of PW2 is grossly bereft of proof of the essential ingredients of the offence of rape. He contended that there was no evidence that any of the alleged armed robbers had unlawful carnal knowledge with PW2.

Still in argument, learned counsel submitted that having rightly found that there was no admission of the offence of rape, it was therefore wrong for the trial judge to find that the offence of rape was proved against the appellant in the absence of any evidence connecting him with the said offence.

In response to the above, learned counsel for the respondent referred copiously to the evidence of PW2 and the medical report Exhibit A in submitting that the prosecution was raped. And that the statements of the appellant in Exhibits G and B reveals evidence of complicity of the appellant in the offence of rape. Thus, the offence of rape was satisfactorily proved by the prosecution.

It is common ground that in all criminal prosecution, it is the duty of the prosecution to prove its case beyond reasonable doubt. It

is not essential to prove the case with absolute certainty but the ingredients of the offence charged must be proved as required by law and to the satisfaction of the Court. See Agbachom Vs The State (1970) 1 ALL NLR 69 a5 76, Okpunor Vs The State (1990) 7 NWLR (Prt 1643) 581 at 593 and Obiakor Vs State (2002) 6 SC (Prt 11) 33 at 38.

the slightest penetration is sufficient to constitute the act of sexual intercourse. See Aliyu Vs State (2019) 11 NWLR (Prt 1682) 108 at 136-137, Isa Vs State (2016) 6 NWLR (prt 1508) 243 and Lucky Vs State (2016) 13 NWLR (Prt 1528) 126.

In the case at hand, the evidence adduced by the prosecution was that on 22/11/2011, armed robbers entered the house of the prosecuterix’s father at Ikot Osong Imun in Etinan Local Government Area wherein they raped the prosecutrix while she was sleeping in her room at about 2:00 am. That in the morning of the incident, she was taken to the police station and from there to the Leprosy Hospital at Ekpene Obom where she was examined and treated. When cross examined at pages 95 and 96 of the record of appeal PW2 said she did not see the appellant as one of the armed robbers that came to their house.

As with the allegation of armed robbery, the appellant also denied raping the prosecutrix i.e. PW2. The learned trial judge however held that even though there is no evidence that the appellant was identified by PW2 as the one who raped her but having earlier found that the appellant participate in the robbery incident

he is equally guilty for the offence of rape. At page 170 of the record of appeal it was held thus: –
“On the offence of rape in count II, there is no evidence before this Court that the accused person was identified as the one who raped PW2. However, I have held that the accused person participated in the armed robbery based on proof and establishment of the recent possession by the accused person of a phone that was stolen during the armed robbery incident and based on the incredible and insufficient defence put up by the accused person, it is also a fact established by the evidence before me that the offence of rape was committed by the armed robbers who struck on 21/11/2011 and during the armed robbery incident.”

I have also considered the provision of Section 7 (1) of the Criminal Code Cap. 38 Vol. 2 Laws of Akwa Ibom State which the learned trial judge relied in convicting the appellant for rape. The section provides that a person is deemed to have taken part in committing the offence if: –
(a) The person actually does the act or makes the omission which constitutes the offence.
(b) The person does or omits to do any act

for the purpose of enabling or aiding another person to commit the offence,
(c) The person who counsels or procure any other to commit the offence.

The question here is, is there any evidence showing that the appellant conspired, aids or abets in the raping of PW2? The answer is no. It is well established that the onus of proof is firmly rested on the prosecution and the onus is only discharged upon proof of all the essential ingredients of the offence charged.

In count II of the charge in the case on appeal, the appellant was charged for raping Pw2. And I have stated that unless penetration is proved, the prosecution must fail but penetration however slight is sufficient without the necessity of proving any injury or rapture of the hymen. See Iko Vs State (2001) 7 SC (Prt 115) at 127.

Learned trial judge also relied on the appellant’s extra-judicial statements, Exhibits G and B as what he described as “accused complicity” in the offence of rape. He concluded at page 171 of the record of appeal that:-
“The question to ask is why would the accused person offer to make atonements for the rape if he were not to be

guilty of rape. Furtherance in the statement of the accused person to the police, the accused freely narrated how he went to the house where the armed robbery and rape took place.”

And I ask myself whether by the above, the appellant unequivocally admitted raping the prosecutrix without any shadow of doubt? I think not. I must stress that suspicion, no matter how high, cannot ground criminal responsibility. In my view, the prosecution did not prove the essential ingredients of the offence of rape with which the appellant was charged. Thus, the trial Court was in error to have convicted the appellant based on the evidence of PW2 vis-a-vis the purported complicity of the appellant in the offence of rape. Issue 2 is also resolved against the respondent.

Having resolved the two issues in favor of the appellant, the appeal is meritorious and is accordingly allowed. The judgment of the lower Court in Charge No. HET/8C/2012 delivered on 27/06/2016 is hereby set aside and the appellant is discharged and acquitted.

MOJEED ADEKUNLE OWOADE, J.C.A.: I agree.

PHILOMENA MBUA EKPE, J.C.A.: I was given the privilege of reading in advance the draft copy of the judgment just delivered by my learned brother, Muhammed Shuaibu, JCA. I agree that the appeal is meritorious and it is hereby allowed.
I also abide by the orders made in the lead judgment.

Appearances:

…For Appellant(s)

Godwin Udom, (PSC, MOJ, AKS) For Respondent(s)