MICHAEL v. STATE (2020)

MICHAEL v. STATE

(2020)LCN/13994(CA)

In The Court Of Appeal

(BENIN JUDICIAL DIVISION)

On Friday, March 13, 2020

CA/B/167C/2018

Before Our Lordships:

Tunde Oyebanji Awotoye Justice of the Court of Appeal

Moore Aseimo Abraham Adumein Justice of the Court of Appeal

Biobele Abraham Georgewill Justice of the Court of Appeal

Between

ADIM OKOLIE MICHAEL APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

BURDEN AND STANDARD OF PROOF IN CRIMINAL PROCEEDINGS

My lords, in law an allegation of the commission of a crime must be proved beyond reasonable doubt by the Prosecution in order to secure the conviction of an Accused person so charged. See Section 135 of the Evidence Act, 2011 (as amended). See Godwin Igabele V. The State (2006) 6 NWLR (Pt. 975) 103. See also Lori V. The State (1980) 8 – 11 SC 81; Emeka V. The State (2001) 14 NWLR (Pt. 734) 666; Peter Igho V. The State (1978) 3 SC 87; Archibong V. The State (2006) 14 NWLR (Pt. 1000) 349.
To succeed therefore, the Prosecution must lead credible evidence establishing the essential ingredients of the offence charged. In doing so the Prosecution need not call a horde of witnesses since in law the credible and cogent evidence of a sole witness will be sufficient to secure a conviction for an offence no matter the heinous nature of the offences charged in so far as corroboration is not required by law. Thus, once the essential ingredients of the offence charged is sufficiently established by the evidence put forward by the Prosecution, it is immaterial that a particular witness was not called or that a particular document was not tendered in evidence. SeeAlhaji Muadzu Ali V. The State (2015) 5 SCM 26. See also Odili V. The State (1977) 4 SC 1; Oguonzee V. The State (1998) 5 NWLR (pt. 551) 521; Alonge V. IGP. (1959) 4 FSC 203;Ibodo V. The State (1975) 9 – 11 SC (Reprint) 80; Abeke Onafowokan V. The State (1987) 1 NWLR (Pt. 61) 538. See also Akpabio V. The State (1994) 7 NWLR (Pt. 359) 635; Idiok V. The State (2008) 13 NWLR (Pt. 1104) 225 @ Pp. 250 ?? 251. See alsoOlayinka V. The State (2007) 4 SCNJ 53 @ p. 73; The State V. Ajie (2000) 3 NSCQR 53 @ p. 66; Adebayo Rasaki V. The State (2014) 10 NCC 1. PER GEORGEWILL, J.C.A.

TYPES OF EVIDENCE TEH PROSECUTION CAN USE TO PROVE THE COMMISSION OF AN OFFENCE

In law, the Prosecution has open to it three basic types of evidence with which to prove the commission of an offence charged against an Accused person beyond reasonable doubt, namely: a: Direct eye witness evidence; b: Confessional statement and c: Circumstantial evidence. See Godwin Igabele V. The State (2006) 6 NWLR (Pt. 975) 103. See also Lori V. The State (1980) 8 – 11 Sc 81; Emeka V. The State (2001) 14 NWLR (Pt. 734) 666; Peter Igho V. The State (1978) 3 Sc 87; Archibong V. The State (2006) 14 NWLR (Pt. 1000) 349. PER GEORGEWILL, J.C.A.

THE PRIMARY DUTY OF THE TRIAL COURT

In considering the conclusions and findings reached by the Court below, I am aware that it is the prerogative of a trial Court which sees and hears the witnesses to choose which to believe and to ascribe probative value to such evidence, either oral or documentary. Thus, a trial Court being the master of the facts, must base his inferences, evaluation or assessment and findings on the available evidence adduced before it and therefore, if its findings must stand it must not be premised on extraneous facts or matters or conjectures outside the evidence given at the trial. See Emeka V. The State (2014) LPELR 23030 (SC); Afolalu V. The State (2010) 16 NWLR (Pt. 1220) 584; Ejeka V. The State (2003) 7 NWLR (Pt. 819) 408; Isibor V. The State (2002) 4 NWIR (Pt. 758) 241; Iko V. The State (2001) 14 NWLR (Pt. 732) 221; Buba V. The State (1994) 7 NWLR (Pt. 355) 195; The State V. Musa Danjuma (1997) 3216 (SC) 1; Arehia V. The State (1982) NSCC 85. PER GEORGEWILL, J.C.A.

WHEN THE DECISION OR FINDING OF THE COURT IS SAID TO BE PERVERSE

In law, a decision or finding or conclusion reached is perverse amongst other grounds if it does not flow from the established facts from the evidence before the Court or it takes into consideration matters extraneous to the issues placed before the Court in evidence by the parties. See C.S.S Book Shop Ltd. V. The Regd. Trustees of Muslim Community in Rivers state (2006) 4 SCM 310, where it was pointed out succinctly thus:
“A decision of a Court is perverse when ii ignores the facts or evidence adduced and admitted before it and when considered as a whole amount to miscarriage of justice. In such a case, an appellate Court is bound to interfere with such a decision and to set it aside”
See also Obajimi V. Adeobi (2008) 3 NWLR (Pt. 1075) 1 @ p. 19. PER GEORGEWILL, J.C.A.

TUNDE OYEBANIJI AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the judgment in respect of the appeal filed by the appellant who was the accused at the lower Court. This appeal is against the decision of Delta State High Court delivered on 14/07/2017 in Suit No. HCI/7C/2015.

The appellant filed a two count charge of setting fire on crops of Okowi family punishable under Section 445 of the Criminal Code and willful damage to survey and boundary marks punishable under Section 458 of the Criminal Code Cap 21 Volume 1 Laws of Delta State.

The appellant and PW are from Issele-Azagba in Delta State where they both share common boundary on a disputed land PW’s case against the appellant was that on 3/2/2013 he saw the appellant and his junior brother Simeon Okolie at the site of the burning fence. He claimed to have seem them as they ran away on a red power-bike after seeing him.

The appellant raised a defence of alibi that he was in Lagos on the said dated when the offence was committed.

After hearing the parties the learned trial Judge found the appellant guilty and convicted him on each of counts 1 and 2 of the charge.

Aggrieved by the said decision the appellant filed Notice of appeal containing two Grounds of Appeal .

After transmission of Record of Appeal to this Court, parties filed and exchanged briefs of argument.

SUBMISSION OF COUNSEL.
The Appellant’s brief of Argument was settled by Comm (Barr) I.W. Agholor, PNM and filed on 21/8/19.

The Appellants herein in their Brief of argument formulated a two issues for determination as follows:
1. Whether the prosecution proved its case against the appellant beyond reasonable doubt to warrant conviction of the appellant (GROUND 1).
2. Whether the trial Judge was right for convicting the appellant in the face of positive evidence of the defence of ablibi and appellants uninvestigated alibi. (GROUND 2)

The Respondent in their brief of argument also formulated two issues for determination as follows:
1. Whether the Court below erred in law when it held that the Respondent proved the 2 (two) count charge beyond reasonable doubt against appellant.
2. Whether the Court below failed to consider the defence of Alibi raised by the Appellant at the trial.

ISSUE ONE
On this

issue, learned counsel to the appellant submitted that the principle of Law in criminal trials, the burden of proof is always on the prosecution and the standard of proof must be beyond reasonable doubt as provided in Section 36 (5) of the 1999 Constitution as amended and Section 135 (2) of the Evidence Act. He added that there is a serious doubt as to who actually committed the offences on 3rd February, 2013 as stated in the charge sheet.

It was further submitted that the Court cannot pick and choose” which evidence to be believe as to who actually committed the offence thus creating serious doubt and that the trial Court erred in law from the evidence adduced, when it failed to resolve this obvious doubt in favour of the appellant.

With particular reference to the IDI V STATE (2017) LPELR-42587 (SC), he contended that the prosecution has a discretion to call on those witness that it requires to establish its case. He added that for the prosecution to prove its case beyond reasonable doubt, it must call vital witness whose evidence may determine the case one way or the other. Failure to call such vital witness as in this instant case is fatal to

prosecution’s case.

ISSUE TWO
It was argued that the Appellant disclosed an alibi at the earliest time but the prosecution failed to take any valid steps to verify or disprove it. He added that the prosecution failed to investigate the alibi raised by the Appellant.

He further argue that it is the Law that once the prosecution fails to investigate the alibi, the accused has discharged his evidential burden and left a room for doubt, the benefit which ought to be given to the accused. On this he relied on the case of IKUMONIHAN V STATE (2018) LPELR-44362 PP. 50-52 Paras E-C, UKWUNNENYI V THE STATE (1989) 4 NWLR (Pt 1.14) 131 at 149.

While flowing from the above principles, it was submitted that on this premise the prosecution has failed to prove its case and the Appellant ought to have been discharged and acquitted by the trial Court.

It was therefore urged on this Court to allow the appeal and set aside the judgment of the trial Court.

RESPONDENT’S BRIEF OF ARGUMENT
The Respondent’s Brief of Argument was settled by A.O. ORHORHORO ESA,. Ch. MC. and filed on 15/7/2019. The learned Respondent’s counsel

formulated two (2) issues for determination to wit:

ISSUE ONE
Learned counsel to the Respondent submitted that the Court below was perfectly right to have convicted the Appellant on the 2 (two) growing plants, punishable under Section 445 of the Criminal Code Law, Cap. C21, Volume 1, Laws of Delta State of Nigeria, 2006 and willful damage to survey and boundary marks, punishable underSection 458 of the Criminal Code Law, Cap. C21, Volume 1, Laws of Delta State of Nigeria, 2006. He added that the Court below also rightly sentenced him to 3 years and 3 months imprisonment respectively without an option of fine and in addition, directed the Appellant to replace all the removed survey beacons.

It was further submitted that the Respondent sufficiently led evidence to prove the fact that the Appellant wilfully and unlawfully damaged the survey and boundary marks of the Okowi family and tendered the pieces of the damaged survey and boundary mark as exhibits.

He contended that the Respondent proved beyond reasonable doubt this second count of the charge against the Appellant. He placed reliance on IGABELE V. THE STATE (2006) 6 N.W.L R. (Part

975) 100; UDOR V. THE STATE (2014) LPELR- 23064 (SC); SHONUBI V. PEOPLE OF LAGOS STATE (2015) LPELR – 24807 (CA).

ISSUE TWO
It was argued that the Appellant’s extra judicial statement, dated 02/08/2013 was not put in evidence before the Court below and this Honourable Court is not entitled to look at, nor consider the said Appellant’s extra judicial statement when such statement was not put in evidence before the Court below. He relied on the case of MATTHEW OBAKPOLOR V. THE STATE (1991) 2 L. R. C.
N. 314, AT 324, MR. SUNDAY IKENNE V. THE STATE (2018) 284 L. R. C. N. 161, AT 180 P-U.

He further argued that the Court below properly considered the defence of Alibi raised by the Appellant at the trial and that the Appellant woefully failed to put his alibi across timeously or at the earliest opportunity, with details, for the Police or the Prosecution to investigate to confirm the truth thereof.

In their response, the learned counsel to the appellant in their reply brief submitted that the submission of Respondent’s counsel on sentencing the wrong person is a mere irregularity is whipping sentiments. He added that the Court can

only act in accordance with the law and procedure since the Court can only do what the law permits. He relied on the case of ADIGUN V AYINDE (1993) 8 NWLR (PR. 313) 5166.

He further submitted that it is not for an accused to prove his alibi, rather the onus is on the prosecution to disprove the alibi and once there is the slightest defence of alibi, the plea must be investigated and failure of the prosecution therefore to investigate alibi raised, is fatal to the prosecution’s case. He cited the case of FRIDAY AIGUOREGHIAN V. THE STATE (2004) 3 NWLR (PT 868) 367.

I have carefully considered the submission of learned counsel on both sides.

I have deeply considered both issues formulated by either counsel which are essentially the same.

I find the two issues formulated by learned counsel for the Respondent very apt, concise and adequate for the just determination of this appeal.

These are the two issues:
1. WHETHER THE COURT BELOW ERRED IN LAW WHEN IT HELD THAT THE RESPONDENT PROVED THE 2(TWO) COUNT CHARGE BEYOND REASONABLE DOUBT AGAINST THE APPELLANT.
2. WHETHER THE COURT BELOW FAILED TO CONSIDER THE DEFENCE OF ALIBI RAISED BY

THE APPELLANT AT THE TRIAL.

The above two issues in my respectful view can be compressed into one sole issue. Issue one in my view is wide enough to accommodate the two issues.

I shall therefore determine this appeal based on a sole issue i.e. issue No. one.

SOLE ISSUE
WHETHER THE COURT BELOW ERRED IN LAW WHEN IT HELD THAT THE RESPONDENT PROVED THE 2 (TWO) COUNT CHARGE BEYOND REASONABLE DOUBT AGAINST THE APPELLANT.

I have carefully combed through the evidence adduced at the lower Court. The following points are very clear from the record.
a) The appellant and the PW1 ‘s family know one another. In fact their families share common boundaries on a land in dispute. In other words the appellant and PW1 know each other very well.
b) The PW1 in his statement to the police at Issele-Uku Police Station explained what happened on the day of the incident thus:
“On February 3rd 2013, Adunabua and Simeon Okolie burnt the rubber plantation fence of a compound of blocks removed and destroyed registered beacons in the rubber plantation and burning of rubber plantation.”

Again on 12/6/2013, PW1 made a different

statement at the Area command Asaba as follows:
“On the Feb this year 2013, Admin Okotie and his other brother Pumika Simoen Okotie entered into my father’s rubber plantation with fuel and poured it on the wall of the fence and blocks.”

It becomes more puzzling when one discovers that PW1 failed to mention the power bike which he claimed to have seen the appellant with and with which according to him the appellant escaped from the scene on the day of the incident. Could the PW1 have made a mistake in the identification of the culprit? Could he have honestly and sincerely, failed to positively identify his boundary man?

Pw1 Claimed to have seen Simeon Okolie and Adunabua in one breath and in another breath claimed to have seen Admin Okolie and Pumika Simeon Okolie committing the same offence on the same February 30, 2013. There are serious doubts in the evidence of PW1 which have caused an indelible vitiating stain in the prosecutor’s case. The doubt is on whether or not the identification of the appellant as the culprit was correct or it was a case of an attempt to criminate him in view of the land dispute between their

two families. This being a criminal case, any doubt in the prosecution’s case should be resolved in favour of the accused seeIDEMUDIA V STATE (2015) LPELR -24835 (SC): IBEH VS THE STATE (1997)1 NWLR PART 484 p.632 where Belgore J.S.C. Explained this principle thus;
“The proper role of the Court in a criminal trial is to evaluate all the evidence before it and be sure that the case for prosecution has been proved beyond reasonable doubt and convicted: but if there is doubts whether based on material contradiction or lack of sufficient evidence the benefit of that doubt must be given to the accused person.”
It is also important to add that the law leans against the evidence of a witness who gives inconsistent statement. Such a witness does not deserve to be believed. See AKANBI ENITAN & ORS V THE STATE (1986) INWLR PART 30 p 604.
Having regard to the aforesaid the evidence of PW1 cannot be believed. It has unfortunately also impacted negatively on the entire evidence of the prosecution.
I wonder why the learned trial judge did not observe this inconsistency and taken note that there was a land dispute between the

families and also that their respective evidence might not have been given in good faith being laced with vendetta.
I resolve this sole issue in favour of the appellant. There are serious doubts in the prosecution’s case which should have been resolved in favour of the appellant.

This appeal has merit and it is hereby allowed.

The judgment of the High Court in Suit No HCI/7C/2015 DELIVERED on 14/7/2017 is hereby set aside in its place I hereby discharge and acquit the appellant (accused) on each of the counts of the charge.

MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: I agree with my learned brother, Tunde Oyebamiji Awotoye, JCA; that this appeal has merit. For the reasons advanced in the leading judgment, I also allow the appeal.

BIOBELE ABRAHAM GEORGEWILL, J.C.A.: I have been afforded the privilege of reading in advance a draft of the Judgment just delivered by my noble lord, Tunde Oyebamiji Awotoye JCA., with which I am in complete agreement with both the reasoning and inescapable conclusion reached therein to the effect that the Court below fell into grave error when, on the face of the very serious doubts occasioned by the many irreconcilable contradictions in the Respondent’s case presented before it, proceeded to convict the Appellant on the evidence falling far short of threshold

requirement of the law that his guilt should be proved beyond reasonable doubt.

was not called or that a particular document was not tendered in evidence. SeeAlhaji Muadzu Ali V. The State (2015) 5 SCM 26. See also Odili V. The State (1977) 4 SC 1; Oguonzee V. The State (1998) 5 NWLR (pt. 551) 521; Alonge V. IGP. (1959) 4 FSC 203;Ibodo V. The State (1975) 9 – 11 SC (Reprint) 80; Abeke Onafowokan V. The State (1987) 1 NWLR (Pt. 61) 538. See also Akpabio V. The State (1994) 7 NWLR (Pt. 359) 635; Idiok V. The State (2008) 13 NWLR (Pt. 1104) 225 @ Pp. 250 ?? 251. See alsoOlayinka V. The State (2007) 4 SCNJ 53 @ p. 73; The State V. Ajie (2000) 3 NSCQR 53 @ p. 66; Adebayo Rasaki V. The State (2014) 10 NCC 1.
In law, the Prosecution has open to it three basic types of evidence with which to prove the commission of an offence charged against an Accused person beyond reasonable doubt, namely: a: Direct eye witness evidence; b: Confessional statement and c: Circumstantial evidence. See Godwin Igabele V. The State (2006) 6 NWLR (Pt. 975) 103. See also Lori V. The State (1980) 8 – 11 Sc 81; Emeka V. The State (2001) 14 NWLR (Pt. 734) 666; Peter Igho V. The State (1978) 3 Sc 87; Archibong V. The State (2006) 14 NWLR (Pt. 1000) 349.

and disguised as a crime by the Complainant leading to the wrongful conviction of the Appellant by the Court below. Right from the true names of the Appellant, to the identity of the person who escaped the scene of crime on a scooter bike to the perennial conflict over land between the parties, it is clear to me, and ought to have been clear to the Court below, that this case not a case founded on any consistent facts that could amount to proof beyond reasonable doubt. Worse still, even on a balance of probability, the lower standard of proof in civil proceedings, the case against the Appellant would still have failed.

My lords, there were too many inconsistencies and contradictions to be ignored by any dispassionate arbiter and all the resultant doubts ought in law and as required by law to have been resolved in favor of the Appellant. From the word go, at the very beginning of his arrest, the Appellant professed and maintained his innocence. In law he need not prove his innocence. It was left for the Respondent to prove his guilt beyond reasonable doubt as required by law. The Respondent failed to do this and the Appellant was entitled to a discharge

and acquittal by the Court below without much ado! It is the law! Thus, the judgment of the Court below convicting him on the face of lack of proof of his guilt beyond reasonable doubt as required by law is perverse and liable to be set aside. In law, a decision or finding or conclusion reached is perverse amongst other grounds if it does not flow from the established facts from the evidence before the Court or it takes into consideration matters extraneous to the issues placed before the Court in evidence by the parties. See C.S.S Book Shop Ltd. V. The Regd. Trustees of Muslim Community in Rivers state (2006) 4 SCM 310, where it was pointed out succinctly thus:
“A decision of a Court is perverse when ii ignores the facts or evidence adduced and admitted before it and when considered as a whole amount to miscarriage of justice. In such a case, an appellate Court is bound to interfere with such a decision and to set it aside”
See also Obajimi V. Adeobi (2008) 3 NWLR (Pt. 1075) 1 @ p. 19.

It is the light of the above and for the fuller reasons so adroitly marshaled out in the lead judgment that I hold that the appeal has merit and

ought to be allowed. I too hereby allow the appeal. The judgment of the Court below convicting and sentencing the Appellant is hereby set aside. In its stead, I too hereby discharge and acquit the Appellant of each and all the Counts. Free at last!

Appearances:

I.W. AGHOLOR with him, O.J. EKPEWU For Appellant(s)

O.A. ORHORHORO Deputy Director DPP Delta State Ministry of Justice, with him, C.E. EREBE Assistant Director For Respondent(s)