KEHINDE AJUMOBI v. THE STATE
(2014)LCN/7265(CA)
In The Court of Appeal of Nigeria
On Thursday, the 10th day of July, 2014
CA/IL/C.7/2013
RATIO
WHETHER PROSECUTION CAN SEEK CONVICTION WHEN THE GUILT OF THE ACCUSED IS YET TO BE PROVEN
The prosecution is under a duty not to ask for conviction where it is obvious that it has not succeeded in proving the guilt of an accused. In Oforlette vs State (2000) FWLR (Pt.12) 2009 para F Achike JSC (of blessed memory) puts the law thus:
“It is the law that the prosecution are not irrevocably committed to ask for conviction in the fact of unexplained aspects of their case that are transparently contradiction or unsatisfactory” learned counsel went further to say that in all the extra judicial statement of the appellant be it the one he made at Adewole police Station (i.e exhibit p7) or the one he made at SAAS (i.e exhibit p4) the substance of the appellant’s defence is that he was a victim of mistaken identity.
In response on behalf of the respondent the learned counsel replied same issue I and submitted that the appellant traversed the realm of criminal prosecution and the onus of responsibility on the prosecution to establish its case beyond reasonable doubt. Prove beyond reasonable doubt, as a cardinal principle of our law does not and cannot mean prove beyond every shadow of doubt. per MUSA HASSAN ALKALI, J.C.A.
JUSTICES
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
MUSA HASSAN ALKALI Justice of The Court of Appeal of Nigeria
Between
KEHINDE AJUMOBI Appellant(s)
AND
THE STATE Respondent(s)
MUSA HASSAN ALKALI, J.C.A. (Delivering The Leading Judgment): This is an appeal against the judgment of Kwara State High Court of Justice, Ilorin delivered on the 11th day of July 2012 by Hon. Justice H. O. Ajayi whereby the appellant and one Raheem Ayinde were convicted for the offence of armed robbery and sentenced to 14 years imprisonment without an option of fine.
The appellant and one Raheem Ayinde were arraigned before the Kwara State High Court of Justice sitting at Ilorin (herein referred to as the Court below) on a Six-Court charge of conspiracy to commit armed robbery contrary to sections 97 of the penal code and Section 1 (2) (a) of the robbery and fire arms (special provision) Act Cap R.11 Laws of the Federation of Nigeria 2004.
The appellant and other Raheem Ayinde were in court from the beginning to the end of the trial. Each count of the charge was read translated into English, Yoruba and Vice Versa. The appellant and other Raheem Ayinde pleaded not guilty to the charge.
The 6 counts read as follow:-
COUNT-ONE
That you Kehinde Ajumobi and Raheem Ayinde on or about the 12th August 2009 at No 74 Olorine Compound, Budo-Nuru area Ilorin Kwara State within the jurisdiction of this Honorable Court, agreed to do illegal act wit to rob one Ismaila Kolawole, Rashidat Ismaila, Idris Afanda and Popoola Shade with gun, Cutlass and broken bottle with dangerous weapon and you hereby committed an offence punishable under Section 97 of the penal code.
COUNT-TWO
That you Kehinde Ajumobi and Raheem Ayinde on or about the 12th August 2009 at No.74 Olorine Compound, Budo-Nuru area Ilorin Kwara State within the jurisdiction of this Honorable Court, while armed with gun, Cutlass and broken bottle robbed one Ismaila and carted away his wallet containing the sum of N3,400,00 vo6m, as double Sim GSM Handset valued N9,000,00 a wrist watch valued N3,000,00 and you hereby committed an offence punishable under Section 1(2) of robbery and fire arms (special provision) Act Cap R11 Laws of the federation of Nigeria 2004.
COUNT- THREE
That you Kehinde Ajumobi and Raheem Ayinde on or about the 12th August 2009 at No 74 Olorine Compound, Budo-Nuru area Ilorin Kwara State within the jurisdiction of this Honorable Court, while armed with gun, Cutlass and broken bottle robbed Rashidat Ismaila and carted away her Nokia handset valued N21,000.00 and you hereby committed an offence punishable under Section 1(2) of robbery and fire arms (special provision) Act Cap R11 Laws of the federation of Nigeria 2004.
COUNT-FOUR
That you Kehinde Ajumobi and Raheem Ayinde on or about the 12th August 2009 at No. 74 Olorine Compound, Budo-Nuru area Ilorin Kwara State within the jurisdiction of this Honorable Court, while armed with gun, cutlass and knife robbed one Saadu Garuba the sum of N5,000,00 and Nokia 1110 handset valued 1(2) of robbery and fire arms (Special Provision) Act Cap R11 Laws of the Federation of Nigeria 2004.
COUNT-FIVE
That you Kehinde Ajumobi and Raheem Ayinde on or about the 12th August, 2009 at No. 74 Olorine Compound, Budo-Nuru area Ilorin Kwara State within the jurisdiction of this Honorable Court, while armed with gun, cutlass and knife robbed one Popoola Shade the sum of N22,000,00 One VCD and DVD player, Two Nokia handset valued N35,000,00 and One Motorolla GSM handset valued N20,000,00 and you hereby committed an offence punishable under Section 1(2) of robbery and fire arms (special provision) Act Cap R11 Laws of the federation of Nigeria 2004.
COUNT- SIX
That you Kehinde Ajumobi and Raheem Ayinde on or about the 12th August, 2009 at No.74 Olorine Compound, Budo-Nuru area Ilorin Kwara State within the jurisdiction of this Honorable Court, while armed with gun, cutlass and knife robbed one Idiris Atanda the sum of N37,000. At gun point and you hereby committed an offence punishable under Section 1(2) of robbery and fire arms (special provision) Act Cap R11 Laws of the federation of Nigeria 2004.
Nine witnesses testified for the prosecution Cutlass, broken bottle, wood and also the extra-judicial statement of the appellant to the police were marked as exhibit. At the close of the defence written addresses were filed by counsels on both sides.
In convicting the appellant the trial Court said inter-alia thus:
“the evidence of the prosecution in my view is direct, cogent and corroborative and has proved or fulfilled the ingredients of the offence of armed robbery charged and hereby hold that the prosecution has proved its case beyond reasonable about and the two accused persons are hereby convicted accordingly”.
Sentence. In view of the allocutus relatively young age of the convicts. The two convicts are hereby sentenced to a prison term of 14 years imprisonment each without option of fine.
Aggrieved by this judgment of the lower court, the appellant who is now at prison filed a notice of appeal pursuant to leave granted him by this court. The appellant’s notice of appeal filed 15/4/2013 contained only 3 ground granted on 18/11/2013. With leave of this court the appellants’ amended notice of appeal has 10 grounds. Appellants’ brief of argument was settled by Musibau Adetumbi Esq. He adopted the same brief as the appellants’ argument in this appeal and urged the court to allow the appeal.
Parties to this appeal exchanged their respective brief in accordance with the Rules of the court. The Respondents’ brief of argument was settled by Kamaldeen Ajibade Esq. Honorable Attorney-General and Commissioner for Justice, Ministry of Justice Ilorin. He adopted the said brief of argument in this appeal and urged the court to dismiss the appeal and affirm the judgment of the court below.
The learned Counsel for the appellant raised four issues for determination from ten grounds of appeal contains in this notice of appeal. The issues read as follows:-
ISSUE 1
Whether on calm review of the appellant’s extra-judicial statements on one hand and his entire oral testimonies before the Honorable Court below on the other hand, the Learned trial judge came to a just and fair conclusion in law and equity when His Lordship rejected the defence of mistaken identity put forward by the appellant on the ground that the two are contradictory to each other and thereafter convicted the appellants (Ground 5).
ISSUE 2
Whether from the entire evidence adduced at the trial before the court below, the identity of the appellant as one of the robbers that raided the complainants’ homes has been established beyond reasonable doubt such that your Lordships ought not to interfere with the finding of guilt of the appellant by the Honorable Court below.
ISSUE 3
Taking into consideration the quality and nature of the purported oral confession allegedly made by the appellant to PW8, was it proper for the learned trial judge to have relied on such a confession that the appellant was guilty as charged. (Ground 6)
ISSUE 4
Taking into consideration the fact that the prosecution led evidence which shows that the appellant was already in the custody of the police prior to the hours of 9 pm – 9.30 pm of 12/8/2009 that the said offence were allegedly committed, is it not obvious that this piece of evidence created a serious doubt in the case of prosecution such that it could not have been proper and just for the Learned trial Judge to hold as His Lordship did that the appellant was guilty as charged.
The legal submissions in support of ISSUE 1 by both counsels are hereby stated thus:-
The learned counsel for the appellant submitted that the need for the prosecution to prove the guilt of an accused beyond any reasonable doubt forms the foundation of our criminal jurisprudence. The prosecution is under a duty not to ask for conviction where it is obvious that it has not succeeded in proving the guilt of an accused. In Oforlette vs State (2000) FWLR (Pt.12) 2009 para F Achike JSC (of blessed memory) puts the law thus:
“It is the law that the prosecution are not irrevocably committed to ask for conviction in the fact of unexplained aspects of their case that are transparently contradiction or unsatisfactory” learned counsel went further to say that in all the extra judicial statement of the appellant be it the one he made at Adewole police Station (i.e exhibit p7) or the one he made at SAAS (i.e exhibit p4) the substance of the appellant’s defence is that he was a victim of mistaken identity.
In response on behalf of the respondent the learned counsel replied same issue I and submitted that the appellant traversed the realm of criminal prosecution and the onus of responsibility on the prosecution to establish its case beyond reasonable doubt. Prove beyond reasonable doubt, as a cardinal principle of our law does not and cannot mean prove beyond every shadow of doubt.
In Miller Vs Minister of Pension (1947) 2 ALL ER 371 at 373 H. DENNING J (As he then was) reflected on the meaning and import of prove beyond reasonable doubt in relation to the protection of the community when the commission of a crime is in issue.
His Lordship said:-
“The degree is well settled, it needs not reach certainty but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The Law would fail to protect the community if it admitted fanciful possibility to defeat the course of justice. If the evidence is as 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 proved beyond reasonable doubt but nothing short of that will suffice”.
He went further to submit that a careful perusal of the extra judicial statement of the appellant with his oral testimony in court will no doubt lead this Honorable Court to the following salient conclusion:-
(a) While in exhibit p4, the appellant gave the impression that he was attacked by a mob for no just cause and for standing a look while the 2nd accused person was advised to run by him, in his testimony in court, he gave the impression that he was arrested while escorting the 2nd accused person to board a taxi, beaten to a point of unconsciousness and treated by nurse with stitches at his back. And that it was the nurse that treated him that told him why he was in the hospital because of his state the previous night.
(b)The appellant by his extrajudicial statement alleged that rather than being the armed robber, the prosecution witness robbed him of his personal belongings while he was beaten. This was a abandoned in his testimony in court.
(c) At one breath the appellant alleged that the 2nd accused was with while him the beaten lasted at another breath he said he asked the 2nd accused to go away while the people were shouting Ole! Ole!! And that he was the only person that was beaten into a state of comma-which of these will the court believe? Certainly none!
Learned counsel for the respondent went further and submitted that the duty of the prosecution is to prove the guilt of the accused person beyond reasonable doubts. But in cases where the accused proffers a reason or reasons why some evidence pertinent to the prosecution’s case should not be admitted due to some irregularity known to him, then that is within the knowledge of the accused and it is then’ the burden shifts to him to prove those facts. This is because whosoever assert must prove-Per Belgore JSc (as he then was) in Emeka vs The State (2001) 14 NWLR (Pt.734) 666 at 680.
After perusal of submissions of both counsel on issue 1. I hereby resolved that there was commission of armed robbery by the appellant and 2nd accused person In Nwatruocha vs The State in suit No.S.C, 197/2010 delivered 11/3/11 the Supreme Court held that where the appellant was identified by the prosecution witness, without any equivocation, a straight issue of credibility will arise, that is to say where an alibi has been raised and there is visual positive identification of the accused’ which is believed by the trial court, the appellant court should not disturb such a finding i.e where there is more credible evidence fixing the accused person with commission of the crime, the defence of alibi will not avail him. Per J. A. Fabiyi JSC His Lordship went further to say that proof beyond reasonable doubt is not proof beyond all iota of doubt, and not be stretched beyond reasonable limit, otherwise it will cleave.
In the State Vs Jimoh Salawu (2012) 22 WLR page 8 1-180 the Supreme Court said- thus-
“The trite position of the law is still that once a statement which was made by an accused was made in a free atmosphere and it is direct, unequivocal, positive and properly proved, it alone, can sustain a conviction without any corroborative evidence ”
In the State Vs Jimoh Salawu (2012) 22 WLR page 9 the Supreme Court said
“The cardinal principle of law is that inconsistency or contradictions in evidence will be substantial only if such contradiction and or inconsistencies are material to an issue of fact”.
Ayoola JSC in a majority judgment expounded the position of such evidence thus:-
“Discrepancies or contradictions in the evidence of a witness or witnesses may be said to be material where they go to an issue of fact which must be determined before a proper verdict can be arrived at in a case or where in the circumstances in which they occurred that were such as to cast a doubt on the credibility of the witness or witnesses”.
Accordingly issue I has no merit in this appeal as well as ground 5.
Legal submissions in support of issue 2 by both counsels are hereby stated thus:-
On behalf of the appellant the learned counsel submitted that in considering the offence of robbery at page 100 of the record, his Lordship was conscious of the requirement of the law that the prosecution must prove that the two accused persons before the court committed the robbery. However the pertinent question which his Lordship failed to answer correctly is whether the prosecution succeeded in proving that the appellant was one of the robbers that committed the robbery in issue. Learned counsel cited the decision of Supreme Court in state Vs Isiaka (2012) 16 NWLR (Pt.1327) 613 at 630, Arioola JSC aptly stated the law thus:-
“In a charge of armed robbery the following vital witnesses are expected to give evidence for the prosecution and where the prosecution fails in that regard very serious doubts arise as to whether the accused person really committed the offence.
(1) The victim of the armed robbery if still alive
(2) The police officer who arrested the accused persons.
(3) The evidence of the circumstances in which the accused persons were arrested.
(4) Eye witnesses or any witness who should give credible evidence of the armed robbery.
(5) If reliance is placed on circumstantial evidence, it must be compelling and lead to only one conclusion, and that is that the accused persons were responsible for the armed robbery.”
In response on behalf of respondent the learned counsel submitted that the entire circumstances of a case determines the type of identification necessary. The identification parade becomes a matter of necessity only where the arrest and circumstances of same is based purely on suspicious as opposed to prompt identification of the accused by the victim immediately after the commission of a crime Learned counsel cited the case of Adamu Vs the state (1991) 4 NWLR (pt.187) 530 at 537-538 per Belgore JSC (as he then was) elucidated the position thus:-
“The entire circumstances of a case determines the type of identification necessary. In some cases when there is more concrete evidence against an accused person, an identification parade may be necessary. Whereby the accused-person is lined up among other persons or even suspects and the victim or witnesses is asked to identify the culprit. But such method is not necessary if the victim of the crime or a witness thereof promptly identifies the criminal without prodding has happened in this case. The case time lapse between 13th-14th October when the attack and Kidnap took place and 16th October 1978 when the victim of the crime identified the appellants was not long enough to dampen his memory as to the identity of the accused persons. I see no substance in this complaint as to identification of 3rd, 4th and 5th appellant”
Learned counsel further submit supra that court not only identifies prompt identification by the victim as the best form of identification it held that an identification of all accused therein done by the victim 3 days after the crime was proper in law.”
What was brought before the lower court were charges for conspiracy and commission of armed robbery. The trial court based on prosecution witnesses, evidences, exhibits, extra-judicial statement of appellant to the police beyond reasonable doubt without undue technicality. All findings were on record that the appellant has been convicted and sentenced to 14 years imprisonment without option of fine. The trial court has weighted the addresses of the learned counsels before it with mercy.
I accordingly perused the issue 2 with care and attention in this appeal to have said that it has no merit based on natural justice. In State vs Jimoh Salawu (2012) vol 22 WRN page 8 the Supreme Court said:
“This court has emphasized again and again the dangers of technicalities to the cause of justice”.
In the case of Sylvester Ogbonor Vs The State (1955) 1 NSCC 224 at 239, (1985) 1 NWLR (pt.2) 223, this court Per Ariagolu JSC re-emphasized the ultimate aims of the law at doing substantial justice as opposed to technical justice when he said:
“the dictates of justice which command that the guilty be punished and the unconcern set free after a fair hearing under procedural regularity, do not permit the acquittal of all otherwise guilty person upon fanciful errors contained in the charge. The law always aims at substantial justice”.
And in Bature vs State (1994) 1 NWLR (pt-320) 267 at 283, (1994) 1 SCNJ 19, this court Per Onu, JSC re-emphosized:
“Rather, what I mean is that mere technicalities (as opposed to substantial justice upon which the law looks with seriousness) as depicted in the instant case ought not to be allowed to defeat the ends of justice.”
Therefore issue 2 as well as grounds 2, 3, 4, 9 and 10 in view of the above decisions failed in this appeal.
ON ISSUE 3 AND 4.
On behalf of the appellant the learned counsel argued 3 and 4 together where he submitted that the prosecution tendered all the extra-judicial statements of the appellant. The defence contends at the Honorable court-below that the case of the prosecution that the appellant was arrested for the offence committed on 12/08/09 in the hours of 8.00 pm to 9.00 pm is contestable because the appellant had written exhibit P7 prior to the time of committing the crime which shows clearly that as at the time he was said to have committed the offence he was already in custody.
He went further submitted that the learned trial judge was wrong in law when he was of the view that the appellant did not contradict the purported confession. PW 8 said the appellant confessed to him. Appellant said he was not the robber and that he was wrongfully arrested as the robber. With profound respect to his Lordship, the appellant has adduced contradictory evidence. The task before his Lordship is to assess in between the two pieces of this contradictory evidence which is credible. To examine the credibility or otherwise of the oral confession alongside other circumstantial evidence. Learned counsel cited Egboghonome Vs State (1993) 7 NWLR (Pt.306) 383 at 436 paragraphs B, the Supreme Court held that-:
“These extra-judicial statements, (including confessions) are invariably part of the evidence adduced by the prosecution to prove the case against the accused. The statements must therefore be assessed and evaluated by the trial court together with other relevant evidence in order to reach a just decision.
It is our humble submission that the summary of our argument are as follows-
1. It is highly probable that the appellant was in advertently arrested as contended by him.
2. The prosecution led inconsistent evidence on how the appellant was arrested and failed to lead cogent evidence to identify the appellant as one of the robbers.
3. The purported oral admission of guilt led by the prosecution of no probative value and it is obvious that the prosecution misled the appellant on the actual time that the offence was allegedly committed. That the prosecution failed to prove beyond reasonable doubt that the appellant was one of the robbers robbed Pw2, Pw3 and Pw4 of their belongings. The contention of the prosecution that appellant was in custody when the said offences were committed creates a big doubt in the case of the prosecution.
In response on behalf of the respondent the learned counsel submitted that because circumstances are not alike, it will be inappropriate for counsel as attempted to be done by counsel to the appellant herein to introduce into the Evidence Act circumstantial exceptions borne out of a particular case for the purpose making an oral statement inadmissible in evidence law. On page 75 of the record, Pw8, the investigating police officer who was the primary IPO in this case narrated how the appellant and his partner confessed to him on how they came to commit the crime and that luck ran against them. He further submitted that there is nothing inhibiting the learned trial judge from accepting this piece of evidence as same was not denied by neither the appellant nor his partner. The trial judge has committed no error of judgment in accepting the version of the prosecution on the oral confession of the appellant same having not been impugned under cross-examination nor expressly denied even in the evidence of the appellant before it. See Per Nnomani JSC in Oduola and others Vs Nabham and others (1981) 12 NSCC 180 at 212-213.
Learned counsel went further that eye witness account of the robbery incident and the peculiarity of the circumstances under which the appellant and his partner were arrested certainly put this issue to rest. The issue of mistaken identity does not arise here as no break in chain of ever occurred between the commission of the offence and the arrest of the appellant.
In any criminal case as in this, the prosecution is not bound to call every witness who are present at the Locus criminies. It is only to call witness who would give relevant evidence in proof of its case. See Iziren Vs The state (1995) 9 NWLR (pt-420) page 385 at 390. Calling or non calling of the neighbours who aided in the arrest of the appellant will not and does not add any value to the established facts before the trial court in view of;-
(a) Lack of break in the sequence of events leading to the arrest of the appellant
(b) Immediate identification of the appellant by the victims.
(c) The recovery of the cutlass used in the robbery operation by the appellant. Learned counsel further submitted that it is mischievous on the part of the appellant to suggest that his statement was taken before he committed the crime for which he was convicted. There was nothing in the evidence of the prosecution witnesses that suggest that the appellant had been arrested before the complaint was made against.
I have carefully perused both counsel on issue 3 and 4 in this appeal. I rest my resolution in Uwagboe Vs State (2005) 12 NWLR part 1102 pate 621 the Supreme Court on Ayo Gabriel Vs State (1959) NWLR part 122 page 457 opined that “two pieces of evidence contradict one another when they are by themselves stops short of or contains a little more than what the other piece of evidence says or some minor differences in details. In expounding these terms the Supreme Court in Isibor vs The State (2002) 4 NWLR part 758 page 741 Per Uwaifo JSC stated thus-;
“in considering a case where contradictions have been recorded in the evidence of witnesses, it is always important to assess the materiality of these contradictions of the case presented. Contradictions which do not affect the substance of the issue to be decided are irrelevant. The contradictions must be shown to amount to a substantial disparagement of the witnesses or witness.”
In Nwaturuocha vs State supra the Supreme Court held that where the appellant was identified by the prosecution witness, without any equivocation, a straight issue of credibility will arise that is to say where an alibi has been raised and there is visual positive identification of the accused, which is believed by the trial court, the appellate court should not disturb such a finding i.e where there is more credible evidence fixing the accused person with the commission of the crime, the defence of alibi will not avail him, Per J. A. Fabiyi JSC His Lordship went further to say that proof beyond reasonable doubt is not proof beyond all iota of doubt and it not be stretched beyond reasonable limit, otherwise it will cleave.”
Based on the above Supreme Court judgments, I found no merit in the appellant’s appeal and accordingly dismissed it affirmed the conviction and sentence of the appellant by the trial High Court of Justice Ilorin Kwara State.
HUSSEIN MUKHTAR, J.C.A.: I have had the advantage of reading in draft the lead judgment of my learned brother, Musa Hassan Alkali, J.C.A, which has just been delivered. I am in complete agreement with him that for the reasons set out in the said judgment, this appeal should be dismissed.
I also therefore dismiss this appeal on the reasons ably advanced in the lead judgment.
UCHECHUKWU ONYEMENAM, J.C.A.: I have read in advance the judgment delivered by my learned brother, MUSA HASSAN ALKALI, JCA. I agree with his conclusion. I therefore dismiss the appeal.
Appearances
Musibau Adetunbi Esq.For Appellant
AND
Kamaldeen Ajibade Esq. Honorable Attorney General and Commissioner for Justice Ministry of JusticeFor Respondent
