MOHAMMED SANI v. THE STATE
(2015)LCN/7933(CA)
In The Court of Appeal of Nigeria
On Thursday, the 2nd day of July, 2015
CA/B/249C/2012
RATIO
EVIDENCE: PROOF BEYOND REASONABLE DOUBT; THE MEANING OF PROOF BEYOND REASONABLE DOUBT
The burden on the prosecution of proving a charge beyond reasonable doubt does not mean or import beyond any degree of certainty. The term strictly means that within the bounds of the evidence adduced, no tribunal of justice would convict having regard to the nature of the evidence led. Evidence which is susceptible to doubt as in the instant case cannot be said to have attained the standard of proof that is beyond reasonable doubt. Proof beyond reasonable doubt should be a proof that excludes all reasonable inference or assumption except that which it seeks to support. It must have clarity of proof that is readily consistent with the guilt of the accused person. See THE STATE vs. ONYEUKWU (2004) 14 NWLR (PT 893) 340 at 379 – 380. The doubts occasioned in the case of the prosecution must be resolved in favour of the Appellant: EDET vs. THE STATE (1988) LPELR (1008) 1 at 21 and ORJI vs. THE STATE (2008) 10 NWLR (PT 1094) 31 at 50. per. UGOCHUKWU ANTHONY OGAKWU, J.C.A.
COURT: THE CONSIDERATION THAT SHOULD AFFECT THE MIND OF A TRIAL COURT WHEN IT COMES TO WEIGHING THE EFFECT OF EVIDENCE ADDUCED
In NWOSU vs. THE STATE (1986) LPELR (2134) 1 at 21, Aniagolu, JSC dealing with the considerations that should affect the mind of a trial court when it comes to weigh the effect of evidence adduced referred to the case of EGBE vs. THE KING (1950) 13 WACA 105, where a passage in the 10th Ed. of Best on Evidence was referred to that:
“The serious consequences of an erroneous condemnation, both to the accused and society, the immeasurably greater evils which flow from it than from an erroneous acquittal, have induced the laws of every wise and civilised nation to lay down the principle, though often lost sight of in practice, that the persuasion of guilt ought to amount to a moral certainty; or, as an eminent Judge expressed it, such a moral certainty as convinces the minds of the tribunal; as reasonable men, beyond all reasonable doubt.” per. UGOCHUKWU ANTHONY OGAKWU, J.C.A.
JUSTICES
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
HAMMA AKAWU BARKA Justice of The Court of Appeal of Nigeria
UGOCHUKWU ANTHONY OGAKWU Justice of The Court of Appeal of Nigeria
Between
MOHAMMED SANI Appellant(s)
AND
THE STATE Respondent(s)
UGOCHUKWU ANTHONY OGAKWU, J.C.A. (Delivering the Leading Judgment): On the 20th day of March, 2012, the Appellant herein was convicted by the High Court of Delta State on a charge of armed robbery and sentenced to death. This judgment is in respect of the Appeal lodged against the said decision of the lower court. The Notice of Appeal was filed on 11th June, 2012. The brief background facts, as can be gleaned from the records, disclose that on the night of 1st February, 2003, the Appellant, a herdsman, while armed with a dagger and cutlass was said to have entered the house of PW2 and robbed her of the sum of N4,350.00. After the Appellant left, the PW2 raised an alarm leading to the eventual apprehension of the Appellant by members of the vigilante group early the next morning. The PW2 duly identified the Appellant as the person who robbed her. There is concordance in the facts as presented by the Appellant except that the Appellant claims that he went to buy food from the PW2 but that he left when the PW2 raised an alarm.
The scarified judgment is at pages 30 – 39 of the Records, while the Notice of Appeal is at pages 40 – 42 of the original Records of Appeal and pages 2 – 4 of the Supplementary Records of Appeal. The original Record of Appeal was transmitted on 4th September, 2012 while the Supplementary Record of Appeal was transmitted on 25th August, 2014. The parties filed and exchanged briefs of argument. The Appellant’s brief is dated 7th September, 2012 but filed on 10th September, 2012. The Respondent’s brief is dated 7th May, 2013, filed on 9th May, 2013 and deemed as properly filed and served on 23rd May, 2013.
The Appellant formulated a sole issue for determination as follows:
“Whether on the evidence on record, the prosecution proved the charge against the appellant beyond reasonable doubt.”
The Respondent equally distilled a sole issue for determination, namely:
“Whether the learned trial Judge was right in law when he held that the prosecution proved its case against the accused person in the one count charge beyond reasonable doubt.”
At the hearing of the appeal, Ayo Asala, Esq., learned counsel for the Appellant adopted the submissions in the Appellant’s Brief and he urged the Court to allow the appeal and discharge and acquit the Appellant. In the same vein, O.F. Enenmo Esq., learned Deputy Director of Public Prosecutions, Ministry of Justice, Delta State, learned counsel for the Respondent, adopted and relied on the Respondent’s brief and he urged the Court to dismiss the appeal.
There is nothing to choose in the respective issues for determination formulated by the parties. Even though differently worded, they are six and one half dozen of the other. Their intent and purport is the same. Accordingly, it is on the basis of the issue as distilled by the Appellant that I will consider the submissions of learned counsel and resolve this matter.
ISSUE FOR DETERMINATION
Whether, on the evidence on record, the prosecution proved the charge against the appellant beyond reasonable doubt.
SUBMISSIONS OF THE APPELLANT’S COUNSEL
The Appellant contends that the offence charged was not proved reasonable doubt as all the ingredients of the offence were not proved. The cases of BELLO vs. THE STATE (2012) 8 NWLR (PT 1302) 207 at 231D-G and FRN vs. USMAN (2012) 8 NWLR (PT 1301) 141 at 157B-F were referred to. The Appellant maintained that the prosecution did not prove that he robbed the PW2 of the sum of N4,350.00 subject of the charge or any sum at all as the prosecution failed to prove that the specific amount stated in the charge was stolen. The case of ONAGORUWA vs. THE STATE (1993) 7 NWLR (PT 303) 49 at 91 was cited in support. It was posited that while the amount stated in the charge was N4,350.00, the prosecution tendered the sum of N640.00 as Exhibits E – E2(a) as what was found on the Appellant when he was arrested. It was argued that the PW2 never identified Exhibits E – E2(a) as part of the money stolen from her and there was no explanation from the prosecution if the N640.00 was part of the N4,350.00 allegedly stolen from the PW2.
The Appellant forcefully argued that Exhibits E – E2(a) could not have been money recovered from the Appellant in 2003 when the offence was allegedly committed as the said Exhibits bear the years of printing as 2007, 2008, 2007 and 2006 respectively, thus making it impossible that they were recovered from the Appellant in 2003. It was opined that this fact raised a serious doubt which must be resolved in favour of the Appellant. It was submitted that the Appellant should not have been convicted since the prosecution failed to prove the particulars stated in the charge. The case of ADEOSUN vs. THE STATE (1975) 9-11 SC 1 at 8 and 10 was referred to. It was opined that the lower court wrongfully summarised the evidence in its judgment at page 31 of the Records leading to a wrong evaluation of the evidence and which occasioned a miscarriage of justice when it wrongly stated that the evidence of the PW1 was that the sum of N4,350.00 was among the exhibits transferred with the Appellant as opposed to the actual testimony that it was the sum of N640.00. This court was therefore urged to set aside the conviction of the Appellant since the prosecution failed to prove that the Appellant robbed the PW2 of the sum of N4,350.00.
It is the further submission of the Appellant that the prosecution failed to prove that the Appellant was armed with cutlass and knives when he visited the house of the PW2. It was stated that it was not in dispute that Appellant visited the house of the PW2 on the day in question but that the issue was whether the Appellant broke into the house of the PW2 and robbed her of the sum of N4,350.00 while armed with cutlass and knives. The reason adduced by the lower court for preferring the evidence of the PW2 to that of the Appellant at page 37 of the Records was referred and it was posited that the said reasoning was faulty since it was not for counsel to the Appellant to controvert evidence. It was stated that the duty of counsel was to discredit evidence adduced while cross examining the witness and that this was duly done at pages 22 – 23 of the Records, leading to its being elicited that there was contradiction as to whether the Appellant broke into the house of the PW2. It was therefore concluded that the testimony of the PW2 cannot be described as assertive, fluent, positive and unshaken as held by the lower court. The prevarication in the testimony of the PW2 as to the amount stolen from her was referred to and it was maintained that her testimony was not fluent and assertive. It was stated that where a piece of evidence is capable of two interpretations, the one favourable to the accused is to be adopted by the court. The cases of ANYIAM vs. THE QUEEN (1961) ALL NLR 50, JOHN vs. THE STATE (2012) 7 NWLR (PT 1299) 336 and IFEJIRIKA vs. THE STATE (1999) 3 NWLR (PT 593) 59 at 79B-C were cited in support.
It was contended that the testimony of the PW2 that the Appellant held a torchlight which he flashed at her, held cutlass and dagger and that while holding all these in his hands still slapped her was not credible especially as it was already dark and it was not possible for the PW2 to see what the Appellant was holding in the circumstances. This Court was urged to find that the facts were consistent with the defence of the Appellant that he came to the house of the PW2 to buy food and that when he knocked and the PW2 opened the door and raised an alarm, he ran away out of fear.
Referring to the case of ONYEACHIMBA vs. THE STATE (1998) 8 NWLR (PT 563) 587 at 599, the Appellant argued that the trial Court had a duty to evaluate evidence properly, which it failed to do as it did not suffice to state that it did not believe the testimony of a witness and make findings of facts without giving reason for its conclusion. The case of THE STATE vs. AJIE (2000) FWLR (PT 16) 2831 at 2844A was referred to and it was stated that an appellate court can interfere with the findings of fact of a trial court where there has been misapplication of the law or where the finding is unsupportable by the evidence such that there is no evidence on which the appellate court can justify the judgment of the lower court. The cases of IFEJIRIKA vs. THE STATE (supra) at 79F-G and OKEKE vs. THE STATE (1999) 2 NWLR (PT 590) 246 at 269G-H were relied upon.
It was maintained that the testimony of the Appellant that he left his dagger and cutlass in the hut where he put up was not contradicted and that it was the words of the PW2 against that of the Appellant that was before the lower court as there was no independent evidence to corroborate the testimony of the PW2 who was the only eyewitness called by the prosecution. It was posited that the cutlass, daggers, torchlight and charms recovered from the Appellant were instruments of his profession as a herdsman and that his being arrested in a bush was not unusual because of the nature of his work. It was contended that the sum of N640.00 recovered from the Appellant was not linked to the N4,350.00 allegedly stolen from the PW2 and that none of the exhibits were recovered at the scene of crime, thereby lending credence to the unchallenged testimony of the Appellant that he left the cutlass and dagger in the hut before going to look for food to buy, thus showing that the lower court failed to evaluate or properly evaluate the defence of the Appellant. It was further contended that the testimony of the PW4 at page 24 of the Records shows that the case reported to the police was burglary and stealing and that the lower court should have proceeded under Section 179 of the Criminal Procedure Act to convict the Appellant for a lesser offence. The case of NWACHUKWU vs. THE STATE (2009) 7 ACLR 405 was referred to. Conclusively, the court was urged to set aside the decision of the lower court and discharge and acquit the Appellant or alternatively convict the Appellant for a lesser offence.
SUBMISSIONS OF THE RESPONDENT’S COUNSEL
The Respondent submits that the lower court was right to have held that the prosecution proved the offence charged beyond reasonable doubt since the prosecution had adduced credible evidence proving the ingredients of the offence. The cases of THE STATE vs. DANJUMA (1997) 50 LRCN 1161 at 1178 and EDAMINE vs. THE STATE (1996) 3 NWLR (PT 38) 530 at 531 were referred to. It was further submitted that the prosecution proved the ingredients of there having been a robbery and that the robbery was an armed robbery and that the accused took part in the robbery. The case of SEBRU vs. THE STATE (2010) ALL FWLR (PT 520) 1263 at 1286 C-D was relied upon. It was contended that the Appellant in his statement, Exhibit F, stated that he forced his way into the house of the PW2.
The prosecution maintained that the evidence established that the Appellant robbed the PW2 of the sum of N4,350.00 while armed with a cutlass and that the sum of N640.00 was tendered in evidence as part of the items recovered from the Appellant and not as money stolen from the PW2 since the PW2 never identified the said N640.00 as part of the money stolen from her. It was conceded that the lower court wrongly summarised the evidence of PW1 when it stated that the sum of N4,350.00 was recovered instead of N640.00, but that the error did not affect the findings made by the court and therefore did not occasion a miscarriage of justice. The case of OGBUNBUJO vs. THE STATE (2001) ACLR 558 or (2001) FWLR (PT 370) 1097 was cited in support. The Court was urged not to interfere with the findings made by the lower court as the said findings were not perverse nor erroneous in substantive or procedural law. The cases of UBANI vs. THE STATE (2002) FWLR (PT 95) 211 and WANKI vs. THE STATE (1993) 5 NWLR (PT 295) 542 were referred to. The court was finally urged to affirm the decision of the lower court and dismiss the appeal because the evidence on record supported the findings of the lower court that the PW2 identified the appellant as the robber that robbed her and that there was credible evidence that the Appellant robbed her of the sum of N4,350.00 while armed with a cutlass.
RESOLUTION OF THE ISSUE
The particulars of offence on which the Appellant stood trial and was convicted allege that he robbed PW2 of the sum of N4,350.00 while armed with an offensive weapon to wit: cutlass and knives. By our adversary criminal justice system which is accusatorial, the constitutional presumption of innocence enshrined in Section 36(5) of the 1999 Constitution (as amended) inures in favour of the Appellant. Accordingly, the prosecution had the onus of proving the commission of the crime charged as depicted in the particulars of offence, beyond reasonable doubt as stipulated in Section 135 of the Evidence Act, 2011. The law is that where a state of doubt exists, the doubt should be resolved in favour of the accused person as it presupposes that the case has not been proved beyond reasonable doubt. See BASSEY vs. THE STATE (2012) LPELR (7813) 1 at 26, NAMSOH vs. THE STATE (1993) LPELR (1937) 1 at 25 – 26 and KALU vs. THE STATE (1988) LPELR (1654) 1 at 16.
The Appellant was charged with the offence of armed robbery. Armed robbery has been defined to simply mean stealing plus violence, used or threatened. See ARUNA vs. THE STATE (1990) LPELR (568) 1 at 14, EKE vs. THE STATE (2011) LPELR (1133) 1 at 15 and FRN vs. USMAN (2012) LPELR (7818) 1 at 14. Therefore in order to establish the charge of armed robbery against the Appellant, the evidence has to show that the Appellant stole something capable of being stolen and threatened to use violence or actually employed violence immediately before or immediately after stealing the item. See ARUNA vs. THE STATE (supra) at 13 – 14, UTUYORUME vs. THE STATE (2010) LPELR (4710) 1 at 21 and Section 15(1) of the Robbery and Firearms (Special Provisions) Act. It therefore behoved the prosecution to adduce evidence which would establish beyond reasonable doubt that the Appellant stole the sum of N4,350.00 from the PW2 and at the time of the theft, used actual violence or threatened to use violence.
The PW2 was the only witness called by the prosecution who gave eyewitness testimony of the incident. In her testimony at page 21 of the Records she, inter alia, stated as follows:
“On the 1/2/2003, I was in my house in the night when the accused knocked at my door and the door opened and the accused person entered the house. As I came out of the house I saw a touch light in the hands of the accused; I also saw a dagger and a cutlass with him which he held. The accused person at that point in time asked me for money.
At that point I brought waist band where I kept money. I brought out money which I gave to him. The amount of the money was N2,350.00. I made mistake in mentioning the amount of money I gave the accused person. I now say that the money was N4,350.00.
After taking the money the accused went out of the house; I thereupon raised alarm. As I raised alarm the people on guard ran to the scene and asked me why I raised alarm.
When the accused entered the house he slapped me; it was due to fear that I produced the money which I gave to him.”
From the testimony of the PW2, I struggle to fathom how the Appellant while holding a torchlight, dagger and cutlass in his hands was still able to slap the PW2. Was the slap with the torchlight or was the slap with the dagger and cutlass? I still strive to understand how the Appellant was able to do so. Even though the PW2 testified that it was “due to fear” that she “produced the money” which she gave to the Appellant, the paramount question is whether the evidence established beyond reasonable doubt that the Appellant stole the sum of N4,350.00 from the PW2. The PW2 prevaricates in her testimony, first stating that it was the sum of N2,350.00 and later saying that it was the sum of N4,350.00. The prosecution has the onus of proving that the sum of N4,350.00 was stolen and also provide evidence linking the Appellant with the specific sum of N4,350.00, subject of the charge. See ONAGORUWA vs. THE STATE (supra).
The learned counsel for the Respondent argued that the Appellant admitted committing the offence in his extra-judicial statement, Exhibit F. Now, I have already stated that for the offence charged to be proved it has to be, inter alia, established that something capable of being stolen was stolen by the accused person. In the statement, Exhibit F, the Appellant stated:
“I know that woman yesterday night time. I only know this woman that yesterday night as I go to her door and push it open by force and I enter there because of hungery [sic]. I have never done like that before and I don’t know the time but it was night as I forced that woman’s door open and entered. I saw the woman inside her house sitting down. As I enter her house and immediately the woman saw me she starts to shout and I never ask her anything I have to run away. I did not see that woman’s husband is only the woman I first see, although I have not enter the whole rooms. I ran away because of fear. That woman did not give me any money and I did not force her to collect her four Thousand three hundred and fifty naira (N4,350.00). I did not slapped that woman that night.”
It is apparent that the Appellant did not admit stealing anything from the PW2. This he maintained in his testimony in court and it was not shaken under cross-examination. A confessional statement in criminal law is a statement which admits of the crime. It must admit of the commission of the crime both in fact and in law. It must admit of the doing of an act or the making of an omission which constitutes an offence in law. The confession must admit of all the ingredients of the crime or offence confessed: NWOBE vs THE STATE (2000) 15 WRN 133 at 141, YUSUF vs. FRN (2010) LPELR (5118) 1 at 17 and NWACHUKWU vs. THE STATE (2007) ALL FWLR (PT 390) 1380. Contrary to the contention of the Respondent’s counsel, the Appellant did not admit of all the ingredients of the offence as he never admitted stealing anything from the PW2.
Perhaps in a bid to link the Appellant with the money allegedly stolen from the PW2, the prosecution tendered Exhibits E, E1, E2 and E2(a) as moneys recovered from the Appellant when he was apprehended. Even though the prosecution rightly submitted that the money was not tendered as part of what was stolen from the PW2 since the PW2 did not identify the money as part of what was stolen from her, a close examination of the said Exhibits leaves plenty of doubt as to whether they could have been recovered from the Appellant. It has to be remembered that the offence was said to have been committed on the night of 1st February, 2003, and early the next morning the Appellant was arrested and Exhibits E, E1, E2 and E2(a) were recovered from him.
Exhibit E is a N500 note. It shows clearly thereon that it was printed in the year 2007. Exhibit E1 is a N100 note which bears year 2008 as the year it was printed; while Exhibits E2 and E2(a),being two N20 notes, bear the year 2006 and 2007 respectively as their year of printing. The perduring question is whether Exhibits E, E1, E2 and E2(a) could have been recovered from the Appellant in 2003. The answer is obvious and it leaves one askance and in doubt as to whether they were actually recovered from the Appellant or if they were perjured in a bid to hang the guilt on the Appellant. The prevaricating testimony of the PW2 cannot be relied upon as establishing beyond reasonable doubt that the sum of N4,350.00 was stolen from her. Accordingly, I am unable to find evidence available on the record establishing that the sum of N4,350.00 as charged or indeed anything capable of being stolen was stolen by the Appellant.
In its review of the evidence, the lower court at page 31 of the Records stated that the PW1 testified that the sum of N4,350.00 was recovered from the Appellant. As conceded by the Respondent, the testimony of the PW1 at page 18 of the Records was that the sum of N640.00 was among the exhibits recovered from the Appellant. As already demonstrated in this judgment, the said sum of N640.00 which were tendered as Exhibits E, E1, E2 and E2(a) could not have been recovered from the Appellant as they were all printed after 2003 when they were purportedly recovered from the Appellant, which cannot be. Perhaps if the review of the evidence by the lower court had not been coloured by the wrong representation that there was evidence that the sum of N4,350.00 allegedly stolen from the PW2 was recovered from the Appellant, the lower court would have found that there was nothing in the evidence establishing that the prosecution proved beyond reasonable doubt that the Appellant stole anything capable of being stolen in order to prove an essential element of the offence charged. In the circumstances, the conclusion of the lower court that the prosecution succeeded in proving beyond reasonable doubt that the Appellant robbed PW2 of the sum of N4,350.00 does not find support in the Records.
It is agreed on all sides that the Appellant is a herdsman. It is equally not in dispute that the Appellant went to the house of the PW2 on the day of the incident. However, the Appellant’s story is that he went to the house of the PW2 to buy food, but that when the PW2 saw him, she raised an alarm and he ran away out of fear. Even though the Appellant testified that he left his dagger and cutlass at the hut where he put up before going to the PW2’s house; it will not be unusual that as a herdsman, the Appellant carries his dagger and cutlass at all times. Equally evident from the Records is that because it was night time, the Appellant had a torchlight with him. Having demonstrated in the course of this judgment that the evidence on record did not establish that the Appellant stole the sum of N4,350.00 from the PW2 as charged, the testimony of the Appellant that the PW2 raised an alarm when she saw him and that he ran away out of fear is quite plausible. Given the entire circumstances, the natural reaction of the PW2 upon seeing the Appellant with dagger, cutlass and torchlight in her house at night would have been to raise an alarm. Equally natural was the reaction of the Appellant, who was not an indigene of the community, by running away. Accordingly, it does not appear to me that on the evidence available on record it could be said that the prosecution proved the offence charged beyond reasonable doubt.
The burden on the prosecution of proving a charge beyond reasonable doubt does not mean or import beyond any degree of certainty. The term strictly means that within the bounds of the evidence adduced, no tribunal of justice would convict having regard to the nature of the evidence led. Evidence which is susceptible to doubt as in the instant case cannot be said to have attained the standard of proof that is beyond reasonable doubt. Proof beyond reasonable doubt should be a proof that excludes all reasonable inference or assumption except that which it seeks to support. It must have clarity of proof that is readily consistent with the guilt of the accused person. See THE STATE vs. ONYEUKWU (2004) 14 NWLR (PT 893) 340 at 379 – 380. The doubts occasioned in the case of the prosecution must be resolved in favour of the Appellant: EDET vs. THE STATE (1988) LPELR (1008) 1 at 21 and ORJI vs. THE STATE (2008) 10 NWLR (PT 1094) 31 at 50.
The Appellant was charged with an offence attracting capital punishment, an offence for which he had to pay the supreme price with his life upon conviction. In NWOSU vs. THE STATE (1986) LPELR (2134) 1 at 21, Aniagolu, JSC dealing with the considerations that should affect the mind of a trial court when it comes to weigh the effect of evidence adduced referred to the case of EGBE vs. THE KING (1950) 13 WACA 105, where a passage in the 10th Ed. of Best on Evidence was referred to that:
“The serious consequences of an erroneous condemnation, both to the accused and society, the immeasurably greater evils which flow from it than from an erroneous acquittal, have induced the laws of every wise and civilised nation to lay down the principle, though often lost sight of in practice, that the persuasion of guilt ought to amount to a moral certainty; or, as an eminent Judge expressed it, such a moral certainty as convinces the minds of the tribunal; as reasonable men, beyond all reasonable doubt.”
The persuasion of guilt from the evidence adduced in this matter clearly did not amount to a moral certainty. Therefore the conviction and sentence of death imposed on the Appellant cannot be allowed to stand. The same must be reversed.
Even though the Appellant had submitted in the alternative that the lower court should have convicted for a lesser offence based on the provisions of Section 179 of the Criminal Procedure Act, I must take into consideration that the Appellant has been in prison custody for the past twelve years, since 2003, as he was never admitted to bail. In the circumstances, I do not think justice would be served if the Appellant were to be convicted for any lesser offence after having spent so many years in prison custody, especially in the light of the fact that the prosecution failed to prove the charge which landed him in prison custody. In the circumstances, the appeal succeeds and the judgment and orders of the lower court in Charge No. HCK/14C/2005 delivered on 20th March, 2012 convicting the Appellant for armed robbery and sentencing him to death is hereby set aside. In its stead I make an order discharging and acquitting the Appellant.
Appeal allowed.
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.: I had the privilege of reading, before now, the leading judgment just delivered by my learned brother, the Hon. Justice U.A. Ogakwu, JCA. Having equally read the briefs of argument of the respective leanred counsel vis-Ã -vis the records of appeal, I cannot but concur with the reasoning and conclusion reached in the said judgment, to the effect that the instant appeal succeeds.
Hence, I equally allow the appeal, set aside the judgment of the High Court of Delta State delivered on 20/03/2012 in Charge No.HCK/14C/2005. Consequently, the conviction and sentence to death passed on the Appellant for armed robbery, are hereby set aside by me. Thus, the Appellant is discharged and acquitted.
HAMMA AKAWU BARKA, J.C.A.: I have been privileged to have read in advance the judgment just delivered by my learned brother UGOCHUKWU ANTHONY OGAKWU, JCA.
It is trite that the prosecution in a criminal trial bears the onerous task of proving any alleged offence against an accused person beyond reasonable doubt. This is by virtue of Section 138(1) and (2) of the Evidence Act 2011. The burden can only be discharged upon the prosecution eliciting and forwarding cogent, credible and compelling evidence. This is against the background of the accused person’s presumption of innocence enshrined in Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999.
It follows therefore that where a doubt is created in the mind of the judge about the guilt of the accused person, no matter how slight, such doubt enures in favour of the accused person. Ahegede vs. The State (1996) 5 NWLR (Pt.448) p.270.
Having read the records in this appeal and the submissions made, I am left in no doubt that alleged offence was not proved as required by law.
For this and the much fuller and better reasons articulated in the lead judgment, which I adopt as mine, I too would allow this appeal and thereby set aside the conviction and sentence of the Lower Court in charge No.HCK/14C/2005: The State vs. Mohammed Sani, delivered on the 20th of March, 2012. In its place, an order is hereby made discharging and acquitting the Appellant.
Appearances
Ayo Asala, Esq. (with Mrs. B. E. Onwuemele)For Appellant
AND
O. F. Enenmo, Esq., Deputy Director of Public Prosecutions, Ministry of Justice, Delta State (with Mrs. R. N. Emekpe, Senior State Counsel)For Respondent
