MOHAMMED v. STATE
(2022)LCN/17131(CA)
In The Court Of Appeal
(AKURE JUDICIAL DIVISION)
On Wednesday, June 29, 2022
CA/AK/89C/2020
Before Our Lordships:
Ayobode Olujimi Lokulo-SodipeJustice of the Court of Appeal
Habeeb Adewale Olumuyiwa AbiruJustice of the Court of Appeal
Yusuf Alhaji BashirJustice of the Court of Appeal
Between
ALLI MOHAMMED APPELANT(S)
And
STATE RESPONDENT(S)
RATIO
THE POSITION OF LAW ON THE BURDEN OF PROVING THAT ANY PERSON HAS COMMITTED A CRIME OR WRONGFUL ACT
This is a criminal trial and it is axiomatic in our jurisprudence that the burden of proving that any person has committed a crime or a wrongful act rests on the person who asserts it. Where the commission of crime by a party is in issue in any proceedings, it must be proved beyond reasonable doubt. In discharging the burden, all the essential ingredients of the crime alleged must be proved beyond reasonable doubt. The burden never shifts. Therefore, if in a criminal trial, on the whole of the evidence before it, the Court is left in a state of doubt, the prosecution would have failed to discharge the burden of proof which the law lays upon it and the defendant will be entitled to an acquittal.
It must, however, be emphasized that the burden of proof of the guilt of an accused person beyond reasonable doubt by the prosecution in criminal cases should not be taken to mean that the prosecution must sustain its case beyond every shadow of doubt. This is due to the aphorism that absolute certainty is impossible in any human venture, inclusive of administration of justice. Thus, once the prosecution has been able to prove that an offence has been committed and that no person other than the accused committed the offence, the prosecution is said to have established its case beyond reasonable doubt – Shola Vs State (2020) 8 NWLR (Pt 1727) 530, Olayiwola Vs State (2021) 17 NWLR (Pt 1806) 579, Akinlade Vs State (2022) 7 NWLR (Pt 1828) 129, State Vs Egwu (2022) 8 NWLR (Pt 1832) 195. In other words, proof beyond reasonable doubt is “not proof to the hilt” and is thus not synonymous with proof of a mathematical certainty. Once the evidence is so 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 will be said to have been proved beyond reasonable doubt –Ezeani Vs Federal Republic of Nigeria (2019) 12 NWLR (Pt 1686) 221, Phillip Vs State (2019) 13 NWLR (Pt 1690) 209, Sanmi Vs State (2019) 13 NWLR (Pt 1690) 551, Itodo Vs State (2020) 1 NWLR (Pt 1704) 1, Ibrahim Vs Commissioner of Police (2020) 15 NWLR (Pt 1746) 122, Fekolomoh Vs State (2021) 6 NWLR (Pt 1773) 461. PER ABIRU, J.C.A.
THE POSITION OF LAW ON ESTABLISHING THE GUILT OF AN ACCUSED PERSON
The law recognizes that in criminal trials, the guilt of an accused person for or the fact of his participation in the commission of the offence charged can be established in any or all the following ways (a) the confessional statement of the accused person wherein he or she admits the commission of the offence and which has been duly tested, proved and is unequivocal and admitted in evidence; (b) circumstantial evidence which is complete, cogent and unequivocal and which leads to the irresistible conclusion that the accused committed the offence; and (c) evidence of an eye witness who saw the accused person committing the offence charged. Any one of the methods is sufficient –Ogunjimi Vs State (2021) 9 NWLR (Pt 1782) 551, Kushimo Vs State (2021) 16 NWLR (Pt 1801) 147, Bala Vs State (2021) 18 NWLR (Pt 1809) 576, Archibong Vs State (2022) 1 NWLR (Pt 1811) 239, Asekere Vs State (2022) 7 NWLR (Pt 1829) 259, Olatayo Vs State (2022) 8 NWLR (Pt 1832) 301. PER ABIRU, J.C.A.
THE POSITION OF LAW ON HEARSAY EVIDENCE
Now, hearsay evidence, in very simple terms, is any statement made out of Court but offered in Court to prove the truth of the facts asserted in Court. It is testimony or documents quoting people who are not present in Court, making it difficult to establish its credibility or to test it by cross-examination. It is hearsay if the evidence seeks to establish the truth of a statement and not merely the fact that it was made. When a third party relates a story to another as proof of contents of a statement, such story is hearsay. Hearsay evidence is all evidence which does not derive its value solely from the credit given to the witness himself, but which rests, also, in part, on the veracity and competence of some other person. A piece of evidence is hearsay if it is evidence of the contents of a statement made by a witness who is himself not called to testify – Mohammed Vs State (2021) 3 NWLR (Pt 1764) 397, Samaila Vs State (2021) 4 NWLR (Pt 1767) 528, Okeremute Vs State (2021) 16 NWLR (Pt 1803) 587, Yahaya Vs Federal Republic of Nigeria (2022) 8 NWLR (Pt 1831) 109. The principle of hearsay evidence or what may be called “a tale retold”, is a rule of evidence that evolved from the common law rules of evidence, but which has now been provided for in Section 37 of the Evidence Act. PER ABIRU, J.C.A.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Ondo State, sitting in Akure Judicial Division, delivered in Suit No AK/27C/2017 by Honorable Justice S. A. Bola (as he then was) on the 9th of July, 2018.
The Appellant was arraigned before the lower Court on a two count charge of armed robbery contrary to and punishable under Section 1(2) (a) of the Robbery and Firearms (Special Provision) Act, Cap R 11, Vol. 14, Laws of the Federation of Nigeria, 2004 and attempted kidnapping contrary to Section 1 of the Ondo State Anti-Kidnapping and Anti Abduction Law, 2010. The Appellant was alleged to have, on or about the 11th of October, 2016, at along Igbonla/Supare Road in Ondo State robbed one Mr. Bello Ibrahim of the sum of N10,000.00 while armed with guns and other dangerous weapons and to have on the same date and at the same location attempted to kidnap the said Mr. Bello Ibrahim to an unknown destination with the intention to compel his family to pay ransom for his release.
The Appellant pleaded Not Guilty to the two counts and the matter proceeded to trial and in the course of which the Respondent called one witness and tendered documentary and real evidence in proof of its case against the Appellant while the Appellant called two witnesses in proof of his defence. At the conclusion of trial, Counsel to the parties filed and adopted their final written addresses. The lower Court thereafter entered judgment discharging and acquitting the Appellant of the offence of armed robbery, but convicting him for the offence of attempted kidnapping and sentenced him to a term of imprisonment of twenty years.
The Appellant was dissatisfied with the judgment and he caused his Counsel to file a notice of appeal containing four grounds of appeal and dated the 27th of January, 2020 against it. The Appellant was granted an extension of time to appeal against the judgment of the lower Court on the 16th of September, 2020 by this Court and the notice of appeal filed on 27th of January, 2020, was deemed properly filed on the same date. In arguing the appeal, Counsel to the Appellant filed a brief of arguments dated the 14th of July, 2020 on the 15th of July, 2020 and the brief of arguments was deemed properly filed on the 16th of September, 2020. The Respondent, in response, filed a brief of arguments dated the 29th of November, 2021 and the brief of arguments was deemed properly filed on the 30th of November, 2021. At the hearing of the appeal, Counsel to the parties relied on and adopted the arguments in their respective briefs of arguments.
Counsel to the Appellant distilled one issue for determination in the appeal and it was:
Whether the holding of the Honorable trial Court was in error when it held that Respondent succeeded in establishing the offence of attempted kidnapping by relying solely on the hearsay evidence of the sole prosecution witness?
In arguing the issue for determination, Counsel to the Appellant noted that the Respondent called one witness in proof of its case, a Police Officer, ASP Oloyede Abayomi, and stated that the entire testimony of the witness was hearsay evidence premised on the fact that the evidence did not derive its value from what the witness saw and experienced but on the veracity and competence of some other person’s information and who was not called as a witness to give evidence in Court and be cross-examined in line with the principles of fair hearing. Counsel referred to the case of Subramaniam Vs Public Prosecutor (1956) 1 WLR 965 and the provisions of Sections 37 to 39 of the Evidence Act on what amounts to hearsay evidence and stated that the Respondent gave no reason why the other witnesses, including the alleged victim of the crime, who were said to have given information to the sole prosecution witness were not called to testify.
Counsel noted that the burden of proving the allegation of commission of a crime is on the person making such allegation and that the standard of proof is beyond reasonable doubt as provided in Section 135 of the Evidence Act and stated that the hearsay evidence of the sole prosecution witness adduced by the Respondent was unreliable in discharging the burden and standard of proof and he referred to the cases of Ifegwu Vs UBN Plc (2011) 16 NWLR (Pt 1274) 555, FRN Vs Usman (2012) 8 NWLR (Pt 1301) 141 and Aina Vs State (2018) LPELR 45566(CA). Counsel reproduced the relevant provisions of the Ondo State Anti-Kidnapping and Anti Abduction Law, 2010 and stated that the elements required to be established in a case of kidnapping were (i) that the victim was seized and taken away by the accused person; (ii) that the victim was taken away against his consent; and (iii) that the victim was taken away without lawful excuse. Counsel stated that the victim of the alleged offence, who is central to the ingredients, was not called as a witness, without any explanation, and that this omission created an air of uncertainty around his identity.
Counsel stated that the lower Court was in total error in according probative value to the testimony of the sole prosecution witness, which evidence, apart from being hearsay, was not corroborated by any other evidence, over the corroborated evidence of the two defence witnesses on the non-participation of the Appellant in the crime and that the finding of the lower Court that the Appellant took part in the alleged attempted kidnapping was perverse and occasioned a miscarriage of justice. Counsel urged the Court to resolve the issue for determination in favour of the Appellant and to find merit in the appeal, allow same, set aside the judgment of the lower Court and discharge and acquit the Appellant.
In response, Counsel to the Respondent similarly formulated one issue for determination in the appeal and this is:
Whether or not the learned trial Judge was right in holding that the Respondent proved the case of attempted kidnapping beyond reasonable doubt against the Appellant?
In arguing the issue for determination, Counsel to the Respondent reproduced the relevant provision of the Ondo State Anti-Kidnapping and Anti Abduction Law, 2010 and referred to the case of Gbadamosi Ebenezer Vs The State (2014) LPELR 23791(CA) in reiterating the ingredients of the offence of attempted kidnapping as (i) intention to kidnap; (ii) manifestation of the intention by overt act; and (iii) inability to fulfill his intention. Counsel also referred to the cases of Ojigbo Vs Commissioner of Police (1976) All NLR 109 and Shurumo Vs The State (2010) 19 NWLR (Pt 1226) 73 on the surrounding circumstances that must be established in a case of attempt to commit an offence. Counsel stated that from the adduced facts, the Respondent proved all the ingredients of attempted kidnapping beyond reasonable doubt through the evidence of the sole prosecution witness who testified that the Appellant orally confessed to him at the Police Station during investigation that he carried out the act of the kidnap of the victim and following which his confessional statement was recorded.
Counsel reproduced the text of the evidence of the sole prosecution witness and espoused on it and stated that the witness testified on how they traced and arrested the Appellant using his phone and his UBA ATM card bearing the Appellant’s names which were in the bag brought to them by the alleged victim of the attempted kidnapping. Counsel stated that these pieces of evidence were cogent, sufficient and credible evidence which fixed the Appellant at the scene of the crime and that the reliance placed on the evidence by the lower Court in convicting the Appellant was proper. Counsel referred to the case of Fatilewa Vs State (2007) 5 ACLR 630 in reiterating the three recognized ways of proving the guilt of an accused person and stated that there was credible circumstantial evidence and confessional statement in the instant case to prove the guilt of the Appellant. Counsel stated that there was ample evidence before the lower Court, including the Appellant’s phone and ATM card said to have been found at the scene of crime, his oral confession which the Appellant subsequently corroborated by his confessional statement, which proved beyond reasonable doubt that the Appellant and others planned the kidnap and executed same with the active participation of the Appellant.
Counsel stated that the assertion of the Counsel to the Appellant that the evidence of the sole prosecution witness was hearsay evidence is absolutely unfounded and runs contrary to the established facts on record with regard to the cogent, credible and unchallenged evidence of the witness and the confessional statement, Exhibit A, and the phone and ATM card of the Appellant, Exhibits B and B1. Counsel referred to the cases of Otiokale Vs The State (1968) NMLR 261 and Uche Vs R (1964) All NLR 195 in reiterating that an oral confession carries the same weight as a written confession and stated that the fact that the confession was subsequently retracted did not mean that the trial Court could not act on it and convict accordingly and he referred to the cases of Edamine Vs The State (1996) 3 NWLR (Pt 438) 530 and Gira Vs The State (1996) 6 NWLR (Pt 443) 375. Counsel stated that it is settled law that the evidence of an Investigating Police Officer on what he actually saw or had witnessed, or discovered in the course of investigation, including the information gathered from people, does not amount to hearsay evidence and it is admissible and he referred to the case of Arogundade Vs The State (2009) All FWLR (Pt 469) 423.
Counsel stated that the evidence adduced by the Appellant in refutation of the case against him was unbelievable, self-contradictory and was controverted by the evidence of the sole prosecution witness and it was willful or corruptly false, ludicrous and implausible. Counsel referred to the provisions of Section 136 of the Evidence Act and stated that the Appellant failed to discharge the onus of proof that shifted to him after the Respondent had led cogent evidence in discharge of its burden of proof and that as such the lower Court was right in rejecting the case of the Appellant and he referred to the cases of Abadom Vs State (1997) 9 NWLR (Pt 479) 1 and Emeka Vs State (2001) 14 NWLR (Pt 734) 666. Counsel urged the Court to resolve the issue for determination in the favour of the Respondent and to find no merit in the appeal and to dismiss same and affirm the judgment of the lower Court.
The Court agrees with Counsel to the parties that there is only one issue for determination in this appeal and the issue for determination formulated by two Counsels is the same.
This is a criminal trial and it is axiomatic in our jurisprudence that the burden of proving that any person has committed a crime or a wrongful act rests on the person who asserts it. Where the commission of crime by a party is in issue in any proceedings, it must be proved beyond reasonable doubt. In discharging the burden, all the essential ingredients of the crime alleged must be proved beyond reasonable doubt. The burden never shifts. Therefore, if in a criminal trial, on the whole of the evidence before it, the Court is left in a state of doubt, the prosecution would have failed to discharge the burden of proof which the law lays upon it and the defendant will be entitled to an acquittal.
It must, however, be emphasized that the burden of proof of the guilt of an accused person beyond reasonable doubt by the prosecution in criminal cases should not be taken to mean that the prosecution must sustain its case beyond every shadow of doubt. This is due to the aphorism that absolute certainty is impossible in any human venture, inclusive of administration of justice. Thus, once the prosecution has been able to prove that an offence has been committed and that no person other than the accused committed the offence, the prosecution is said to have established its case beyond reasonable doubt – Shola Vs State (2020) 8 NWLR (Pt 1727) 530, Olayiwola Vs State (2021) 17 NWLR (Pt 1806) 579, Akinlade Vs State (2022) 7 NWLR (Pt 1828) 129, State Vs Egwu (2022) 8 NWLR (Pt 1832) 195. In other words, proof beyond reasonable doubt is “not proof to the hilt” and is thus not synonymous with proof of a mathematical certainty. Once the evidence is so 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 will be said to have been proved beyond reasonable doubt –Ezeani Vs Federal Republic of Nigeria (2019) 12 NWLR (Pt 1686) 221, Phillip Vs State (2019) 13 NWLR (Pt 1690) 209, Sanmi Vs State (2019) 13 NWLR (Pt 1690) 551, Itodo Vs State (2020) 1 NWLR (Pt 1704) 1, Ibrahim Vs Commissioner of Police (2020) 15 NWLR (Pt 1746) 122, Fekolomoh Vs State (2021) 6 NWLR (Pt 1773) 461.
The Appellant was convicted of attempted kidnapping. He was alleged to have, on or about the 11th of October, 2016, along Igbonla/Supare Road in Ondo State attempted to kidnap one Mr. Bello Ibrahim to an unknown destination with the intention to compel his family to pay ransom for his release. As rightly pointed by the Counsel to the Respondent, this Court in the case of Ebenezer Vs State (2014) LPELR 23791(CA) stated the elements of this offence to be: (a) intention to kidnap (b) manifestation of the intention by overt act (c) inability to fulfill his intention. The onus on the Respondent to prove the cumulative presence of the ingredients cannot be compromised in any respect. The onus does not shift at all as it rests squarely on the Respondent throughout the case. Where the Respondent fails to prove any of the ingredients, the offence of attempted kidnapping would not have been established beyond reasonable doubt and the Appellant would be entitled to be discharged and acquitted – Orubo Vs State (2021) 16 NWLR (Pt 1803) 549.
The law recognizes that in criminal trials, the guilt of an accused person for or the fact of his participation in the commission of the offence charged can be established in any or all the following ways (a) the confessional statement of the accused person wherein he or she admits the commission of the offence and which has been duly tested, proved and is unequivocal and admitted in evidence; (b) circumstantial evidence which is complete, cogent and unequivocal and which leads to the irresistible conclusion that the accused committed the offence; and (c) evidence of an eye witness who saw the accused person committing the offence charged. Any one of the methods is sufficient –Ogunjimi Vs State (2021) 9 NWLR (Pt 1782) 551, Kushimo Vs State (2021) 16 NWLR (Pt 1801) 147, Bala Vs State (2021) 18 NWLR (Pt 1809) 576, Archibong Vs State (2022) 1 NWLR (Pt 1811) 239, Asekere Vs State (2022) 7 NWLR (Pt 1829) 259, Olatayo Vs State (2022) 8 NWLR (Pt 1832) 301.
Counsel to the Respondent stated that the Respondent relied on the circumstantial evidence in the testimony of the sole prosecution witness and oral confession as well as the written confession of the Appellant in proving his guilt. In his deliberations in the judgment, the lower Court stated thus:
“The second count is on the offence of attempted kidnapping. It is to the effect that on or about the 11th of October, 2016, along Igbonla/Supare Road in Ondo State attempted to kidnap the said Mr. Bello Ibrahim to an unknown destination with the intention to compel his family to pay ransom for his release.
In respect of this offence, no direct evidence was placed before this Court by the prosecution. The alleged victim Bello Ibrahim did not testify to narrate his experience, neither did his son who was said to have witnessed the incident place his evidence before this Court. There is therefore no direct evidence in this regard. What we have are Exhibits B–B5 said to have been found at the scene of crime particularly Exhibit B – Nokia phone and ATM card belonging to the Defendant at the scene of crime.
This Court had earlier found as of fact that the items were found at the scene of crime. These exhibits in the opinion of this Court do not constitute direct evidence but circumstantial evidence. It is circumstantial evidence because there was no evidence of a witness before this Court fixing the defendant at the scene of crime.”
The lower Court thereafter proceeded to define what amounts to circumstantial evidence and continued thus:
“Now the question is: Is the evidence placed before this Court by the Prosecution that is Exhibits B – B3 especially Exhibit B and B1 (Nokia phone and ATM card) belonging to the Defendant found at the scene of crime credible, cogent, consistent and unequivocal and leads on or about the 11th of October, 2016, at along Igbonla/Supare Road in Ondo State attempted to kidnap the said Mr. Bello Ibrahim to an unknown destination with the intention to compel his family to pay ransom for his release to no conclusion other than the guilt of the defendant charged with the offence of attempted kidnapping?
The recovery of these items – Exhibit B and B1 at the scene of crime clearly links the Defendant with the attempt to kidnap the said Bello Ibrahim on 11/10/2016. This Court is very sure that the exhibits are circumstantial evidence which leads irresistibly to the conclusion that the defendant was one of the others now at large who attempted to kidnap the said Bello Ibrahim.
Invariably, Exhibits B and B1 lead to and establish the guilt of the defendant. It establishes the charge of attempted kidnapping against the defendant beyond reasonable doubt. They are credible circumstantial evidence. The evidence is incompatible with the innocence of the defendant. It displaces suspicion …
The fact of this case in our hand reveals that the victim – Bello Ibrahim was seized and taken away by the Defendant and others at large along Igbonla/Supare Road, Supare, Ondo State on 11/10/2016. The victim was taken at the spot against his consent. He was taken away without lawful excuse. He was rescued by villagers where the victim was abandoned by the Defendant and others at large. That Exhibit B–B5 were found at the spot he was abandoned.
Upon the Exhibit B – Nokia phone and Exhibit B1 – ATM card belonging to the Defendant, facts placed before this Court, particularly by the discovery of Exhibit B and B1 (Nokia phone and the ATM card) belonging to the Defendant at the spot, it establishes clearly that the Defendant is connected with the attempt to kidnap the victim. He was one of the participes criminis. He took part in the commission of the crime. Exhibits B and B1 gave him away. It led to his arrest. The defendant, a Fulani man, participated fully in the attempted kidnapping of his fellow Fulani man.
Flowing from the above premises, this Court holds that the prosecution has succeeded in establishing the offence of attempted kidnapping …”
It is obvious from the above reproduced deliberations of the lower Court that it did not rely on the alleged oral confession and/or confessional statement of the Appellant tendered as Exhibit A in finding him guilty. This was a wise move by the lower Court because the written confessional statement was tendered for identification purpose only and also, according to the evidence of the sole prosecution witness, the Appellant, upon his arrest, was interrogated through an interpreter, Corporal now Sergeant Julius Sunday, and that the statements he made, both oral and written, were made through the interpreter. The interpreter was not called as a witness. The law is that where the interpreter of a confessional statement, whether oral or written, is not called as a witness, the confessional statement becomes hearsay evidence and should not be accorded any value by a trial Court – Adelani Vs State (2018) 5 NWLR (Pt 1611) 18, Oloye Vs State (2018) 14 NWLR (Pt 1640) 509, Hamza Vs State (2019) 16 NWLR (Pt 1699) 418, State Vs Usman (2021) 16 NWLR (Pt 1801) 73, Obaro Vs State (2022) 3 NWLR (Pt 1816) 105, Sokoto Vs Independent National Electoral Commission (2022) 3 NWLR (Pt 1818) 577.
The lower Court relied on the oral evidence given by the sole prosecution witness and the items he tendered in finding the Appellant guilty. The witness testified thus:
“I am Olotu Adesina. I am a Sergeant. My Force No is 447842, attached to the Special Anti Robbery Squad (SARS) Ondo State. I know the Defendant. On 13/10/16, a case of armed robbery and kidnapping was reported at the SARS Akure by one Fulani man Alhaji Bello Ibrahim that on 11/10/2016, he was on his way from Akungba to Igbola Camp in Supare Akoko, Akoko South West, Ondo State. He was on his motorcycle with his son Amidu Ibrahim along Ugbanla Road and suddenly 4 Fulani men came out from the bush with arms and some dangerous weapons, stopped him with force. He was kidnapped and taken to the bush. His son Amidu Ibrahim escaped from them and ran to the village, to inform the villages that his father had been kidnapped.
The people in the village came out. They entered into the bush where they saw Alhaji lying down and tied with a rope. When the kidnappers saw the people run after them, they abandoned their victim and ran away. They forgot their bag containing 1 Nokia handset, one live cartridge ammunition, a wallet designed with the N1000 note. Inside the wallet was UBA ATM card bearing Alli Mohammed and one charm tied with a black nylon with two ropes and one N500 note. These items were brought to the Anti Kidnapping section for investigation. In the bush the kidnappers had collected the sum of N10,000 from Alhaji Ibrahim, their victim.
Based on our investigation, on 22/10/2016, a team of policemen led by ASP Oloyede Ayobami which included me left for Aviele in Auchi in Edo State. There we arrested the defendant and brought him to Ondo State.
… A bag containing some items were recovered at the scene of crime and were brought to our station. Shown to me are the items (1) Nokia handset with 2 sim cards inside – of MTN and AIRTEL (2) UBA ATM card inside the wallet designed with N1000 currency. The ATM card has Alli Mohammed on it (3) live cartridge ammunition (4) Black mask (5) rope (6) charm tied in a black nylon. … Through the ATM card and the Nokia phone recovered from the scene, we were able to arrest the Defendant Alli Mohammed.”
The items in the bag were admitted in evidence by the lower Court as Exhibits B – B5. It was from this evidence of the sole prosecution witness that the lower Court made the above reproduced findings in the judgment. Counsel to the Appellant berated the lower Court for relying on the evidence of the witness and stated that the evidence of the witness as to the occurrence of the crime was hearsay evidence.
Now, what is obvious from the above reproduced excerpt of the evidence of the sole prosecution witness is that it was on the 13th of October, 2016, two days after the 11th of October, 2016 when the attempted kidnap was alleged to have occurred, that the alleged victim came to their office to tell them the story of him and his son being attacked by some four Fulani men with weapons and of how he was robbed and kidnapped and taken into the bush and of how his son escaped and alerted people in the nearby villages and of how the village people chased his attackers into the bush and rescued him and the attackers ran off leaving a bag containing some items and he brought the bag containing the items to them in their office as having been recovered from the scene of the incident. It was not the evidence of the witness that it was the Police that recovered the bag containing the items from the scene of the crime. The witness thereafter stated that they used the items in the bag brought by the alleged victim to trace and arrest the Appellant and they brought him to their station.
The witness gave no evidence that the Police upon receipt of the report from the alleged victim confirmed the truth of the story told to them and what steps or investigation the Police carried out to confirm that the incident as narrated to them by the victim indeed took place. The witness gave no evidence of the steps taken by the Police to confirm that the bag brought to them by the victim was indeed recovered from the scene of the crime. All that the Police did by way of investigation was to use the Nokia phone and the ATM card in the bag brought to them to trace and arrest the Appellant and to thereafter interrogate the Appellant.
Now, hearsay evidence, in very simple terms, is any statement made out of Court but offered in Court to prove the truth of the facts asserted in Court. It is testimony or documents quoting people who are not present in Court, making it difficult to establish its credibility or to test it by cross-examination. It is hearsay if the evidence seeks to establish the truth of a statement and not merely the fact that it was made. When a third party relates a story to another as proof of contents of a statement, such story is hearsay. Hearsay evidence is all evidence which does not derive its value solely from the credit given to the witness himself, but which rests, also, in part, on the veracity and competence of some other person. A piece of evidence is hearsay if it is evidence of the contents of a statement made by a witness who is himself not called to testify – Mohammed Vs State (2021) 3 NWLR (Pt 1764) 397, Samaila Vs State (2021) 4 NWLR (Pt 1767) 528, Okeremute Vs State (2021) 16 NWLR (Pt 1803) 587, Yahaya Vs Federal Republic of Nigeria (2022) 8 NWLR (Pt 1831) 109. The principle of hearsay evidence or what may be called “a tale retold”, is a rule of evidence that evolved from the common law rules of evidence, but which has now been provided for in Section 37 of the Evidence Act.
Applying the above definition to the portion of the evidence of the sole prosecution witness wherein he related the information told the Police by the alleged victim of the attempted kidnap on the occurrence of the incident and the finding of a bag containing some items at the scene of the crime, it is obvious that it is hearsay evidence. The story was told to establish the fact that the alleged kidnap incident did occur and that the bag containing the items was found at the scene of the incident. This was the story that the lower Court believed, used and relied on in making its several findings in the judgment. It is correct as submitted by Counsel to the Respondent that the evidence of an Investigating Police Officer in a criminal trial is ordinarily not treated as hearsay evidence, but this is where the evidence consists of what he saw, witnessed or discovered in the course of his work as an investigator – Arogundade Vs State (2009) 6 NWLR (Pt 1136) 165, Olaoye Vs State (2018) 8 NWLR (Pt 1621) 281, Ilyasu Vs State (2021) 1 NWLR (Pt 1756) 1, Ugoala Vs State (2021) 3 NWLR (Pt 1763) 263. The above story told on the occurrence of the incident and the recovery of a bag containing items from the scene of crime was not discovered by the witness in the course of his investigation.
It is settled law that hearsay evidence is not admissible evidence – Offor Vs State (2021) 18 NWLR (Pt 1807) 31, Obaro Vs State (2022) 3 NWLR (Pt 1816) 105. There was thus indeed no credible evidence led by the Respondent to support the assertion that any alleged attempted kidnap took place on the 11th of October, 2016 and/or that there was any scene of crime for such incident and/or that any bag of items was recovered at any such scene of crime. The findings made by the lower Court on the evidence of the sole prosecution witness were predicated on inadmissible evidence and it is trite that a conviction based on such evidence cannot be allowed to stand – Federal Republic of Nigeria Vs Usman (2012) 8 NWLR (Pt 1301) 141, Ali Vs State (2019) 14 NWLR (Pt 1692) 314, Sokoto Vs Independent National Electoral Commission (2022) 3 NWLR (Pt 1818) 577.
From the totality of the case presented by the parties, what the lower Court had before it was the testimony of the sole prosecution witness, as related above, and the evidence of the two defence witnesses, one Abubakar Baleri as the first witness and the Appellant as the second witness. The case of the Appellant in his defence was a total denial of the case of the Respondent. The Appellant stated that he lived in Lokoja and had never met the alleged victim of the attempted kidnap and did not know him and that he did not know the place called Ugbonla, Supare Road in Akoko and that he had never been to the place. It was his case that he sells provisions in Lokoja and that he was arrested from his shop in Lokoja and not in Auchi and that he did not drop any bag at any scene of crime and that his Nokia phone and ATM card were taken from him by the Police when they arrested him in Lokoja and brought him to Akure. It was his case that the person he was alleged to have kidnapped was brought to identify him and that the alleged victim said he did not know him.
These were the two versions of evidence presented to the lower Court for evaluation at the conclusion of the trial. In carrying out the evaluation, the lower Court stated in the judgment thus:
“Were Exhibits B – B1 ATM card and phone set belonging to the Defendant found at the scene of crime or recovered from him when he was arrested? Was he arrested in Lokoja as claimed by the defendant or in Auchi as testified by the PW1 the Investigation Police Officer. The DW1 testified that he knew the defendant in Lokoja but he would not know his movement.
I have no doubt the defendant was arrested in Auchi. I prefer the evidence of the Investigation Police Officer (PW1) who was part of the team that investigated the alleged crime and arrested the defendant. I do not believe the evidence of the defendant that he was arrested in Lokoja. Observing his demeanour, he did not appear to this Court that he is a witness of truth. I prefer the evidence of the PW1 – the Investigation Police Officer that the defendant was arrested in Auchi. I therefore find as a fact that the defendant was arrested in Auchi.
The PW1 testified that he found at the scene of crime a nylon bag containing Exhibits B – Nokia handset Exhibit B1 – ATM card, both belonging to the defendant. Also found in the bag were 1 live cartridge as Exhibit B2, one black mask – Exhibit B3, rope – Exhibit B4 and charm tied in a black cloth – Exhibit B5 respectively. That it was through the ATM card and Nokia phone recovered at the scene that they were able to trace and arrest the defendant. The defendant denied that the Nokia phone and ATM card were recovered at the scene of crime, but that they were recovered from him when he was arrested.
The defendant admitted that the ATM card and the phone set (Nokia) belong to him. He could not deny them because they bear his names. However, I do not believe his denial that the phone sets and ATM card were not found at the scene of crime. These Exhibits (B – B1) were found together with other items (Exhibits B2 – B5) at the scene of crime. I have no doubt and do believe the evidence of the PW1 that the items including B – B1, Nokia phone ad ATM card belonging to the defendant were found at the scene of crime. I also believe the PW1 (IPO) that it was the card and the phone that provided the necessary clues to track down the defendant and his eventual arrest by the police. I so find as of fact.”
It is evident from the above excerpt of the evaluation of evidence that the lower Court read words into the testimony of the sole prosecution witness. The witness never said that he or the Police recovered the bag containing the said items, Nokia phone, ATM card, etc, at the scene of the crime. The witness testified that the bag containing the items was recovered at the scene by the alleged victim of the crime and brought to their office. It is also evident that the lower Court, with respect, either forgot or was oblivious of the rudimentary and elementary difference between the evaluation of evidence in a civil matter and the evaluation of evidence in a criminal matter. It is settled law that the burden of proof in a civil matter is discharged on a balance of probabilities or preponderance of evidence, whilst in a criminal matter it is by proof beyond reasonable doubt. The phrase proof ‘beyond reasonable doubt’ means proof that has attained that level of certainty, credibility and assuredness which leaves the Court without any vestige of lingering doubts regarding the culpability or otherwise of the accused person and with regards to the particular offence with which he has been charged – Afolalu Vs State (2010) 16 NWLR (Pt 1220) 584. It means proof of an offence with the certainty of the Criminal Law, i.e. that the offence in question has been committed and that no other person but the accused person on the evidence committed the offence. Where the evidence conclusively establishes these facts, the offence is said to have been proved beyond reasonable doubt – Edwin Vs State (2014) LPELR 24234(CA).
It is not a simple case of preferring the evidence of the prosecution witnesses over that of the defence witness, as obtained in civil matters, and this is what the lower Court did throughout the above reproduced excerpt of the judgment. In State Vs Gwangwan (2015) 13 NWLR (Pt 1477) 600, the Supreme Court stated that proof beyond reasonable doubt in the realm of criminal justice connotes such proof as precludes every reasonable hypothesis, except that which it tends to support and it is proof which is wholly consistent with the guilt of the accused person and inconsistent with any other natural conclusions. In Okeremute Vs State (2021) 16 NWLR (Pt 1803) 587, the Supreme Court reiterated that proof beyond reasonable doubt means proof as satisfies the judgment and conscience of a Judge as a reasonable man and applying his reason to the evidence before him, that the crime charged has been committed by the defendant and so satisfies him as to leave no other reasonable conclusion possible.
It is clear that the Respondent did not lead admissible, credible and sufficient evidence to prove the allegation of attempted kidnap against the Appellant beyond reasonable doubt. The finding of the lower Court that the Respondent proved its case against the Appellant beyond reasonable doubt on the strength of the evidence of the sole prosecution witness is baseless. The need for trial Courts to be very circumspect in criminal trials and to exercise great care in convicting an accused person is one of the main signposts of our criminal jurisprudence and it is captured in the aphorism that it is better for ten guilty people to be set free than for one innocent person to be convicted – Odogwu Vs State (2013) 14 NWLR (Pt 1373) 74.
The law is that if an appellant asserts that the prosecution failed to prove his guilt beyond reasonable doubt before conviction, it is for him to establish that it is so and it is the duty of an appeal Court to examine the assertion against the whole background of the case and in particular, against the evidence leading to the guilt of the Appellant. If at the end of the whole case, there is reasonable doubt created by the evidence given either by the prosecution or the Appellant, as to whether the offence was committed by him, the prosecution has not made out the case and the Appellant is entitled to an acquittal – Oteki Vs State (1986) All NLR 371, Ekpe Vs State (1994) 12 SCNJ 131 and Udosen Vs The State (2007) All FWLR (Pt 356) 669. The conviction of a man for an offence must be seen as the product of prudent and logical thinking, based upon admissible evidence, in which the fact leading to his conviction are clearly found and the legal deduction therefrom carefully and rightly made and it cannot be allowed to stand if it is founded upon a misapprehension, misdirection and/or error of law.
In conclusion, this Court finds merit in the appeal and it is hereby allowed. The judgment of the High Court of Ondo State, sitting in Akure Judicial Division, delivered in Suit No AK/27C/2017 by Honorable Justice S. A. Bola (as he then was) on the 9th of July, 2018 is hereby set aside along with the conviction of and the sentence passed on the Appellant. The Appellant is hereby discharged and acquitted of the offence of attempted kidnapping. These shall be the orders of the Court.
AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in draft, the leading judgment prepared by my learned brother HABEEB ADEWALE ABIRU, JCA; in this appeal.
I agree with the reasons stated by his lordship in coming to the conclusion that there is merit in this appeal.
The prosecution in my considered view failed to discharge the onus on it to prove beyond reasonable doubt the ingredients of the offence of attempted kidnapping in respect of which the lower Court convicted the Appellant. I do not have anything more to add to what my learned brother has said in the leading judgment. Accordingly, I too allow the appeal and set aside the conviction and sentence passed on the Appellant by the lower Court in its judgment appealed against. The Appellant is hereby acquitted and discharged of the offence for which he was convicted and sentenced by the lower Court.
YUSUF ALHAJI BASHIR, J.C.A.: I have been afforded the opportunity to read in advance, the judgment ably prepared and delivered by my learned brother Habeeb Adewale O. Abiru JCA.
In any criminal trial, the burden of proof is always on the prosecution.
The starting point is the provision of Section 135(1) (2) of the Evidence Act, 2011. By which the position of the law has been made manifestly clear that the burden of proving any crime or crime related matters is placed squarely upon the prosecution who must lead credible and cogent evidence to prove the allegation beyond reasonable doubt; in view of the constitutional presumption of innocence in favour of the Accused person. See Segun Adelodun v. F. R. N. (2017) LPELR-42356; Okashetu v. State (2016 15 NWLR (pt 1534) 126.
In this case, only one witness testified for the prosecution during the trial at the lower Court, his evidence unfortunately is not sufficient or credible enough to prove the allegation levelled against the Appellant. Attempted kidnapping, the conviction of the Appellant is therefore unwanted as rightly argued by the Appellant’s counsel.
In the final analysis, I agree entirely with my learned brother in the leading judgment that this appeal is meritorious. It is accordingly hereby allowed. The judgment of the High Court of Ondo State, sitting in Akure, delivered in Suit No. AK/27C/2017 by Hon. Justice S. A. Bola (as he then was) dated 9th of July, 2018 is hereby set aside; along with the conviction and sentence imposed on the Appellant. The Appellant is hereby discharged and acquitted.
So shall it be.
Appearances:
Oluwaseun Alabo with him B. O. T. Omojola. For Appellant(s)
Leonard Ologun, DPP, with him Ebere Anyanwu, SLO, Ministry of Justice, Ondo State. For Respondent(s)
