LUCKY v. STATE
(2021)LCN/15124(CA)
In The Court Of Appeal
(ASABA JUDICIAL DIVISION)
On Monday, May 31, 2021
CA/AS/473C/2017
Before Our Lordships:
Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal
Joseph Eyo Ekanem Justice of the Court of Appeal
Abimbola Osarugue Obaseki-Adejumo Justice of the Court of Appeal
Between
ONYEKA OSSAI LUCKY APPELANT(S)
And
STATE RESPONDENT(S)
RATIO
WHETHER THE GUILT OF AN ACCUSED PERSON CHARGED MUST BE PROVED BEYOND REASONABLE DOUBT
When it comes to criminal prosecution, the Law is trite that the Accused is presumed innocent until his guilt is proved by the prosecution. To attain conviction by the erosion of the presumption of innocence, guaranteed by Law, the Law requires that the guilt of an accused person charged must be proved beyond reasonable doubt. See Miller Vs Minister of Pensions. PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
POSITION OF THE LAW WHERE EVIDENCE OF THE PROSECUTION IS CONTRADICTORY
The Law is that where the evidence of the prosecution is contradictory, it is unreliable and therefore unsafe to convict thereon. See Olayiwola Vs State (2018) ALL FWLR (Pt. 918); Emeka Vs State (2014) ALL FWLR (Pt. 751) 1480 and Agbo Vs State (2006) ALL FWLR (Pt. 309) 1380 which aptly applies to render worthless the evidence of PW3 and thus making the prosecution’s case unreliable and weakly unsafe to ground any conviction. PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
WHETHER THE TRIAL COURT CAN DIRECT THE MODE OF EXECUTION OF A DEATH SENTENCE UNDER THE ROBBERY AND FIREARMS (SPECIAL PROVISIONS) ACT CAP 398
… by a proper construction of the provisions of the Section 1(3) of the Robbery and Firearms (Special Provisions) Act Cap 398, the duty of directing the mode of execution of a death sentence under the Act, does not lie with the trial Judge, but with the Governor of Delta State under the afore mentioned Section. See Albert Ikem Vs State (1985) 1 NWLR (Pt 2) 378, 398; See also Tanko vs State (2009) 169 LRCN 65 Per Aderemi, JSC. PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
MOHAMMED AMBI-USI DANJUMA, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Justice Asaba, Delta State delivered on 1st day of June, 2016 whereat the Appellant was convicted and sentenced to terms of imprisonment and Death (concurrently) at the Obiary Judicial Division, thereof. By an information filed on 23rd February, 2012 the Appellant was charged for conspiracy to commit murder, attempted murder, armed robbery and illegal possession of fire arms.
The facts succinctly put are that the Appellant conspired to commit murder and attempted to commit murder, armed robbery and did rob one Chukwunalu Animan along Ulogwe Isumpe Road, Obiaruku Judicial Division on the 1st day of May, 2011 by cutting off his hand and inflicting matchet cuts on other parts of his body and illegal possession of firearms.
The prosecution, Respondent called six (6) witnesses. The 1st witness being the victim himself testified that he was a commercial motor bike rider and while on his way along Isumpe road with a passenger named Florence Iyama, a red Jetta car driven by the Appellant double crossed and accused him (PW1) for
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giving information to the police which led to the killing of one of their friends. That he was beaten with axe and cutlass and his right hand cut off, his head cut with battle axe and he was dragged to the cementary. That he only woke up to find himself at the General Hospital, Agbor, Delta State.
Upon the exchange of briefs of argument and adoption at the hearing, the Appellant relying on the Appellant’s Brief of Argument filed on 9/2/2020 and deemed on 24-6-2020 urged this Court to allow his Appeal. The Respondent relying on the Respondent’s Brief of Argument filed on 22-6-2020 and also deemed on 24-6-2020 urged that this appeal be dismissed and the conviction and sentence on all the counts including the death sentence be affirmed.
The Appellant raised a lone issue thus;
Whether having regard to the circumstances of this case and the totality of the evidence on record, the learned trial Judge was right in holding that the prosecution proved the charges of conspiracy to commit murder, attempted murder, armed robbery and illegal possession of firearms against the Appellant beyond reasonable doubt.
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The Respondent’s Issue is to the same effect and reads thus;
Whether the trial Judge was right in holding that the prosecution proved the charges against the Appellant beyond reasonable doubt.
Arguing this issue, the Appellant argued that the evidence of the PW1 on the identity of the Appellant was suspect and that inconsistency existed. Such that it was errorneous to rely on it to prove conviction beyond reasonable doubt.
The Appellant’s counsel referred this Court to the evidence of PW1 on the 10th October, 2012 on pages 122 and 123 of the record on the incident thus:
“I know the Appellant as Anini and had a passenger on my commercial motor bike called Florence Iyama and that the Appellant was the one driving the red Jetta car they were six of them in the car, I was beaten by the said men, led by the Appellant, my right hand was cut off, my head was cut with battle axe and then collected my mobile phone, money and motor bike.”
Counsel also referred to the cross examination on the 19th day of June 2013 where the PW1 stated thus; “I do not know the Appellant and have never met the Appellant before that day which was the day the
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incident happened. See page 126 of the record of appeal.
The learned counsel submitted that the credibility of the evidence of PW1 on the identification of the Appellant has to do with whether he properly identified the Appellant to the police at the earliest opportunity and not his demeanour from the witness box.
It was argued that the Court should examine closely the circumstances in which the identification by the witnesses were made. That identification evidence as to who was seen committing the offence is essential. Bolu Vs State (2018) ALL FWLR (Pt. 967) 380 SC; Ndidi Vs State (2007) ALL FWLR (Pt. 381) 1617. It was submitted that where the prosecution’s case is saddled with contradictions and inconsistencies, the Court will be slow to rely on and to convict the accused person. Olayiwola Vs State (2018) ALL FWLR (Pt. 918) 1CA, Emeka Vs State (2014) ALL FWLR (Pt. 751) 1480; Agbo Vs State (2006) ALL FWLR (Pt. 309) 1380.
Picking from the offence Armed Robbery upon which the Appellant was convicted, the learned counsel restated the ingredients thereof of the offence and submitted that all the ingredients to wit
(i) There must have
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been a robbery
(ii) The robbery was armed
(iii) The Appellant is the robber or one of the robbers must be shown to co-exist, in the absence of (any) of which ingredients an acquittal of the Appellant must be entered. Etisi Vs State (2018) ALL FWLR (Pt. 649) 1020; Okanlawon Vs State (2015) 17 NWLR (Pt. 1489) 445
The learned counsel referred to the fact that PW1 was not alone but carried a passenger, who was strangely not called to testify. The evidence of PW2 on page 128 also alluded to as hearsay as he said he was informed that PW1 carried one Florence Iyama. That though not under a duty to call all manner of witnesses, but the failure to call a vital witness is fatal to the prosecution’s case.Etisi Vs State (2018) ALL FWLR (Pt. 920) 43.
That from the evidence, there was no shred of it to show that Appellant ever conspired with anybody to attempt or indeed committed murder or armed robbery of PW1. On the charge relating to the count of illegal possession of firearms, the evidence of the Appellant on the 8th March, 2016 as found on page 142 of the record of appeal thus;
“I took my car to a well for washing while I was there
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policemen, Vigillante and PW3 arrested me alongside Onyeka Odigili, the young man who was washing my car. We were taken to the police station kwale. I was not told why I was arrested. PW3 and Kess Okpayene asked me to give them my car key so that they could go and bring my car and secure my bail. I gave them the key so that they could drive my car and secure my bail. I did not see them on that day. The next day my car was brought to the station. I was them transferred to Obiaruku police station.”
That the above evidence of the Appellant was not challenged, controverted or attacked in cross-examination. That there was no shred of evidence linking the Appellant to any possession of firearms, and yet this evidence was not considered nor weight attached to it. Securities Solutions Ltd Vs Adamu-Oladiran & Ors (2016) LPELR 40068(CA) referred and that the Law is that such unchallenged evidence is relevant to the issue joined and ought to be considered. Nnaji Vs Madaki & Anor (2012) LPELR (2009) 7 Per Nimpar, JCA that the trial Judge did not evaluate the unchallenged evidence of the Appellant and that if it had done, it would have arrived at a
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different decision.
RESOLUTION
This appeal is on a narrow compass relating to the credibility of evidence led at the trial Court. When it comes to criminal prosecution, the Law is trite that the Accused is presumed innocent until his guilt is proved by the prosecution.
To attain conviction by the erosion of the presumption of innocence, guaranteed by Law, the Law requires that the guilt of an accused person charged must be proved beyond reasonable doubt. See Miller Vs Minister of Pensions.
In the trial herein on appeal, no such standard of proof was approximated let alone met. The identity of the Appellant herein as the culprit in the offences of conspiracy to murder, attempted murder and robbery was not established; there was the complete absence of any reliable evidence that it was the Appellant as charged that committed any of the acts alleged as relating the murder and robbery offences. Aside the fact that there was no direct evidence of an eye witness to the alleged offences, there was also no circumstantial evidence that pointed irrestibly to the fact that the Appellant herein was doer or participant in the acts alleged. By the evidence
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of the PW1 the alleged victim, he could not have identified the Appellant whom he admitted not knowing him before the date of incident. No wonder, therefore, that he (PW1) stated that he did not know the Appellant and have never met the Appellant before that day of the incident. See page 126 of the record being victim’s evidence in cross-examination.
This clearly contradicts his evidence in Chief of having known him as Anini and that he was beaten by men led by the Appellant and his right hand cut off, head cut with battle axe and mobile phone, money and motor bike collected. And all in the presence of Florence Iyama whom he stated was carried by him as a passenger on his Motor bike. This eye witness, who would have been the best witness of the incident was not called. No attempt is shown to have been made at calling at all such a vital and material evidence mentioned by the Appellant by name; and who cannot be said to be a ghost that could not be traced. The omission or refusal to call him amounts to withholding of evidence. See Section 167(d) of the Evidence Act 2011; the Section provides as follows:
”The Court may presume the existence of any
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fact which it thinks likely to have happened, regard shall be had to the common course of natural events, human conduct and public and private business, in their relationship to the facts of the particular case, and in particular may presume that:
(a) …….
(b) ……
(c) ……
(d) Evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it; and
(e) ……..”
Clearly therefore, the trial Court ought to have presumed and failing which this Court does presume in the circumstances that evidence of identity would have been led through Florence Iyama and more appropriately by an identification parade. No such evidence was forth coming.
In the state of having a hand cut off and cut on the head, I wonder what serene state of mind the Appellant would have been to maintain the ability of identifying his assailant, even if he had known him before in a fleeting moment. A lot of doubt is raised in the scenario of proof by identity in this situation where there is no evidence of one person that ‘retrieved’ the Appellant, who had been attacked brutally and neither
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was there a medical report in proof of the grave injuries said to have been inflicted. I am by no means suggesting that a medical report must exist before the charges are proved. Far from that. All I am saying is that a shoddy investigation or no discreet investigation was conducted in this case to trap with certainty, the culprits in the dastardly and viscious attack. Indeed, even as relating the charge of unlawful possession of firearms, the uncontradicted and uncontroverted evidence of the Appellant suggesting a set up is all I see. Why was the Appellant and the car washer who were both arrested not taken along with the Appellant’s car and for an immediate search of the vehicle? Why was the car left behind to be brought later upon receiving the key from the Appellant and even then after a day? This was the uncontroverted evidence of the Appellant, on the record. The Court is bound by such evidence of facts which are direct and not inadmissible. Strangely, there was no cross examination of the Accused Appellant such as to bring out any evidence that on the stated or alleged date of the offences, he was driving with a number of persons in his car along
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the area of the crime alleged, so as to illicit the evidence that he was truly with co-passenger assailants or conspirators, who could be called or have evidence elicited from them and against the Appellant or the others. Nothing was done in any effort at arresting or discovering the other alleged co-conspirators.
There is no doubt a burden on the prosecution to prove crimes and a concomitant duty to ensure the safety of society. However, the sanctity of life dictates that it is better for a guilty person to go unpunished than for one innocent one to be condemned; this is a philosophy of great anti-quity. See “The quantum of proof” in the book: The Burden of proof, Granville Williams: The Hamlyn lectures; A study of English criminal trial pages 186 – 190. If the trial Court had properly evaluated the evidence and also given a thought to the break in the prosecution evidence as to the absence and reason for the abrupt transfer of the Appellant from one Police Division to the another and the total absence of evidence and report and action as to what offences was said to have been committed in the other Police Division, it would have seen
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the investigation and prosecution suspect.
It appears to have been embarked upon with desperation rather than a product of meticulous, judicious and due administration of criminal justice which ought be the sine qua non of all Administration of the Criminal Law Agencies. PW4 testified as a police officer who testified on a report made at the Kwale Division in May 2011 by PW2 and that the accused Appellant was arrested on 1st August, 2011. That a case of robbery was reported in July, 2011 by PW3. He stated his role but that the investigation was incomplete.
The said PW3 in his evidence on page 9 of the record of appeal. There in the evidence, PW3 said he perched in the bush near his house and electricity was on while he saw the Appellant with 8 others, two of whom he mentioned their names in his compound. That the Appellant was talking to his wife and later they shot guns and moved away. That he then came to his house and in the morning; he went to report at the Police Station on 1-8-2011. That he was arrested and in the boot of his car, was found a pump action gun; this same PW3 who said the gun was recovered in his presence prevaricated when from
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both sides of the mouth he said he can identify the pump action gun and that though the other gang member held an AK47 rifle he cannot identify an AK47 Rifle if he saw one.
The evidence of PW3 was suspect and unreliable. The PW3 clearly stated that “nothing was taken from my house” see page 10 of the record of appeal; yet and strangely, PW4 testified at page 11 of the record that a case of Robbery was reported by the PW3 against the Appellant on 31-7-2011. PW3 said he reported on 1-8-2011 and even then nothing was stolen or taken from his house. So which case of robbery was reported by PW3 who denied any such offence relating to property? But the PW4 insisted that he did. The Law is that where the evidence of the prosecution is contradictory, it is unreliable and therefore unsafe to convict thereon. See Olayiwola Vs State (2018) ALL FWLR (Pt. 918); Emeka Vs State (2014) ALL FWLR (Pt. 751) 1480 and Agbo Vs State (2006) ALL FWLR (Pt. 309) 1380 which aptly applies to render worthless the evidence of PW3 and thus making the prosecution’s case unreliable and weakly unsafe to ground any conviction.
The presumptive submission of the Respondent
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in its brief of argument belied the evidence led at the trial and has in no way swerved this Court from applying the settled position of the Law that the guilt of an Accused person though not proved beyond every shadow of doubt, but must where it involves a sentence of death, be proved beyond reasonable doubt and upon evidence which must have been given a merciless scrutiny. See Shande Vs State; 2005 LPELR 3035 (SC).
The reliance on the evidence of PW1, PW3 and PW4 for the conviction had no legal justification either on the evidence led or the Law. The rejection of the evidence of the Accused/Appellant herein amounted, in that circumstance, to placing the burden of proof of innocence on the Appellant, when criminal cases are never proved on the preponderance of evidence. Accordingly, this appeal has merit.
What is more, by a proper construction of the provisions of the Section 1(3) of the Robbery and Firearms (Special Provisions) Act Cap 398, the duty of directing the mode of execution of a death sentence under the Act, does not lie with the trial Judge, but with the Governor of Delta State under the afore mentioned Section. See Albert Ikem Vs State
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(1985) 1 NWLR (Pt 2) 378, 398; See also Tanko vs State (2009) 169 LRCN 65 Per Aderemi, JSC. Aside the above, which alone may not have occasioned a miscarriage of justice if the convictions were right, all being wrong herein, I allow the appeal on all the convictions on the counts charged; inclusive of the death sentence passed. The judgment delivered in suit NO: HOB/6C/2012 of 1-6-2012 is set aside and quashed.
In its place, I enter a verdict allowing the appeal and order the discharge and acquittal of the Accused/Appellant therein.
JOSEPH EYO EKANEM, J.C.A.: I read in advance the lead judgment of my learned brother, DANJUMA, JCA, which has just been delivered, I agree with the reasoning and conclusion therein that the appeal has merit.
The PW1, the victim of the crime, identified the applicant along with others as the persons who attacked him. In his evidence, he stated that he knew the appellant as Anini. However, in cross examination he testified that he did not know the appellant and had never met him before the day of the incident. These pieces of contradictory evidence go to the root of the case of the respondent as they weaken the case of the
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prosecution in respect of the identification of the appellant. The quality of the identification evidence offered by prosecution was poor and it was therefore dangerous to convict the appellant on that Basis. See ABUDU v. STATE (1985) 1 NWLR (PT. 1) 55, 61 – 62.
An account of the forgoing, and the more comprehensive reasons set out in the lead judgment of my learned brother, I also allow the appeal, set aside the judgment of the trial Court, I discharge and acquit the appellant.
ABIMBOLA OSARUGUE OBASEKI – ADEJUMO, J.C.A.: I have had the advantage of reading in draft the judgment delivered by my learned brother MOHAMMED AMBI – USI DANJUMA, JCA in this appeal and I have no hesitation in agreeing with the reasoning and conclusion arrived at by my learned brother.
I also abide by all consequential order(s) in the lead judgment.
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Appearances:
G.O. Okoro, Esq. For Appellant(s)
E.E. Erebe, Esq, Assistant Director, Ministry of Justice, Delta State For Respondent(s)
