MRS. OPEYEMI OMOLARA BAJULAIYE v. THE STATE
(2012)LCN/5275(CA)
In The Court of Appeal of Nigeria
On Thursday, the 29th day of March, 2012
CA/L/231/2008
RATIO
EVIDENCE: DUTY BEFORE DRAWING INFERENCE OF THE ACCUSED’S GUILT FROM CIRCUMSTANTIAL EVIDENCE
I agree with the submission of the learned counsel for the Appellant when at page 5, paragraph 3.02 of his brief of arguments, he referred to the case of EME ORJI VS THE STATE (2008) 10 NWLR (Pt.1094) 31 at 35 where Aloma Mariam Mukhtar J.S.C had this to say
“…It is also necessary before drawing the inference of the Accused’s guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference.” PER RITA NOSAKHARE PEMU, J.C.A.
JUDGMENT: WHETHER SUSPICION CAN SECURE A CONVICTION
It is no gainsaying that in law, suspicion, no matter how strong can secure a conviction – SHEHU VS. THE STATE 2010. PER RITA NOSAKHARE PEMU, J.C.A.
EVIDENCE: MEANING OF CIRCUMSTANTIAL EVIDENCE
“Circumstantial evidence” has been defined in the Blacks’ Law Dictionary 8th Edition as “evidence based on inference and not on personal knowledge or observation”
Again it is described as “indirect evidence”. That which is applied to the principal fact, indirectly or through the medium of other facts, by establishing certain circumstances or minor facts, already described as evidentiary, from which the principal facts is extracted and gathered by a process of special inference ” – ALEXANDER M. BURRILL. A Treatise on the Natural Principles and Rules of Circumstantial Evidence. 4 (1868).
Again, it is defined by Williams P. Richardson, The law of Evidence III at (3rd Edition 1928) as
“Evidence of some collateral fact from which the existence or non-existence of some fact in question may be inferred as a probable consequence, is termed circumstantial evidence”. PER RITA NOSAKHARE PEMU, J.C.A.
CRIMINAL LAW: NATURE OF THE DEFENCE OF ALIBI
In Aremu v. State (1991) 7 NWLR Pt.201 Pg. 1 At Pg., it was held as follows:
“Alibi is a defence that places the accused person at the relevant time of crime in a different place from the scene of crime and so removed therefrom as to render it impossible for him to have committed the offence.”
see also AKPAN v. STATE (1991) 3 NWLR (pt.182); AIGUOREGHIAN V. STATE (2004) 3 NWLR (Pt.860). PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
SIDI DAUDA BAGE Justice of The Court of Appeal of Nigeria
RITA NOSAKHARE PEMU Justice of The Court of Appeal of Nigeria
Between
MRS. OPEYEMI OMOLARA BAJULAIYE Appellant(s)
AND
THE STATE Respondent(s)
RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This Appeal is a fallout of the final Judgment of Hon. Justice A. A. Oyebanji in Charge No.ID/76C/01 of the Lagos High Court, holden at Ikeja Division delivered on the 7th of December 2007, convicting and sentencing the Appellant to 4 (four) years imprisonment with hard labour.
The Appellant, Opeyemi Omolara Bajulaiye was the Manager of the International Department of the Eko International Bank as at year 2000 when the offence was committed. She was charged along with two others for the offences of Conspiracy and Stealing contrary to Sections 515 and 390(5) respectively of the Criminal Code Act. The other accused persons were Suleiman Ajao Jimoh as 1st accused person and Bakare Omololu Adewale as 3rd accused person.
The offences for which they were charged is stated hereunder
“STATEMENT OF OFFENCE – 1ST COUNT”
Conspiracy, contrary to Section 516 of the Criminal Code.
PARTICULARS OF OFFENCE
Suleiman Ajao Jimoh (M), Opeyemi Omolara Bajulaiye (F) and Bakare Omololu Adewale (M) on or about the 21st day of November 2000, at Eko International Bank Plc Ikeja in the Ikeja Division conspired to commit a felony to wit: Stealing.
“STATEMENT OF OFFENCE – 2ND COUNT”
Stealing, contrary to Section 390(6) of the Criminal Code.
PARTICULARS OF OFFENCE
Suleiman Ajao Jimoh (M), Opeyemi Omolara Bajulaiye (F) and Bakare Omololu Adewole (M) on or about the 21st day of November 2000, at Eko International Bank Plc Ikeja in the Ikeja Judicial Division, stole the sum of $210,000 dollars (Two Hundred and Ten Thousand U.S. Dollars) from the Safe of Eko International Bank Plc…”
This charge is reflected at page 2 of the Record of Appeal.
The 1st and 3rd accused persons were discharged and acquitted by the learned trial Judge, of the offences of Conspiring and Stealing – pages 320-321 of the Record of Appeal.
The facts of the circumstances culminating in this appeal as gleaned from the Record of Appeal is that the Appellant, and two others, worked as employees of Eko International Bank, Alausa, Ikeja. The Appellant was the Manager of the International department of Eko International Bank as at the time of the committing of the offence in 2000. The Appellant, it was, who headed the department that sells foreign exchange to customers.
Between the night of the 21st of November 2000 and the early hours of 22nd of November 2000, a case of stealing occurred at the International Department of the Eko International Bank Plc, Ikeja. The sum of $210,000 U.S. Dollars (Two Hundred and Ten Thousand U.S. Dollars), was allegedly stolen from the fire proof cabinet safe of the bank, where foreign currencies such as travelers’ cheques and U.S. Dollars were being kept. Upon examination of the cabinet safe where the alleged stolen money was kept, it was found that the cabinet safe, had been forcibly opened, and damaged with several marks on it.
There is nothing in the case file and record of appeal to show that Police investigated the matter, apart from statement of persons which were from records taken down at the Force C. I. D. There is no Police Investigation Report stating the facts of the incidence reflecting any investigation by the police.
What can be gleaned from the record is that one Josephine Kehinde Obasanya a Manager with Eko International Bank on the 22nd of November 2000, received a call from Chief Inspector of the International Department of the Bank. She was at the time auditing the computer room at Alausa. She was instructed to go upstairs to International Services, with another Inspector, following the report she got, that the Safe of the bank had been broken into. She immediately proceeded upstairs. Mr. Jimoh, the main key holder of the Safe, confirmed that the Safe had been broken into and money stolen. When she immediately asked how much was stolen, Mr. Jimoh said it was much, but that they needed to count the travelers cheques to determine the exact cash stolen. After some calculations, they arrived at the sum of $210,000 dollars as having been stolen. She then asked for the second key holder, one Wale Bakare, holder of the combination, but he was not around. When he finally came at about 9.30am, she asked Jimoh and Mr. Bakare why cash was left upstairs, but they told him, that that was the usual practice.
It is not usual that cash be kept there, but she discovered that cash transaction started on the 3rd of November 2000. She requested that the Appellant be invited to the Bank. When she asked the Assistant General Manager if he was aware that cash was left upstairs, he said that the first day cash was brought to the Bank, he asked them to take it downstairs. Mr. Jimoh said such value was left for customers, but that the customers did not come. She then collected a list of the customers, which list was earlier on handed over to Mr. Jimoh by the Appellant.
The Appellant had commenced her leave on the 21st of November 2000. She asked who locked the door and found that it was one Cregg, but Mr. Jimoh signed for the keys and handed it over to the Security. She found out that Mr. Jimoh, Yede Durosimi and Cregg were the last persons to leave the bank building at 7.50pm. That Wale Bakare left before others at 7.17pm. This information was got from the register of the Bank.
When she saw the Appellant the next day, she asked her about the cash check between her and Mr. Jimoh, and who witnessed it. She said it was done in the presence of staff. That she said however that it was the travelers cheques that was brought out, and that the cash was counted inside without bringing it out. She carried out some calculation to determine if they had been leaving cash upstairs and she discovered that at various time Dollars were kept upstairs. She asked the Appellant if cash was normally kept upstairs, but she said that the Safe had combination and key. She reminded the Appellant about the policy and insurance cover but she said that it was only she and Jimoh that knew about this practice of leaving such cash upstairs, and nothing had happened in the past.
When she showed the Appellant the list of customers who were expected to come and collect the money, she agreed to it, but that she left the list with Mr. Jimoh.
She proceeded to take statements from the staff except the three security staff who were taken away without making statements. She asked if Mr. Adegbusi counted the cash before taking over, but the Appellant said no. It was on the 21st of November, 2000 that the A.G.M asked him to count the money which he confirmed correct to the A.G.M. Mr. Adegbusi however did not give the figures to the A.G.M.
Notably is that these facts are gleaned from the statement of PW1, Kehinde Obasanya, as there was no Police Investigating Report.
The Appellant has, according to her evidence in Court worked for the bank since 26th of January 1988 – a period of thirteen years before the incident took place. She was employed as a researcher/confidential secretary and rose to the level of Manager and at the time of the incident was the Manager of International department. She had about seven subordinates in the department which she headed. They included the 1st and 3rd accused persons at the lower court – Sulaimon Ajao and Wale Bakare.
She had applied for leave, to proceed on same on the 20th of November 2000. On the 17th of November 2000, she handed over the key to Mr. Jimoh Sulaimon who was in charge of travelers cheques. She instructed him to check the balance on the register. Mr. Wale had the combination lock. The key and combination lock were meant for the fire proof cabinet where the travelers cheques, U.S. Dollars and other valuables were kept. Indeed Mr. Jimoh and herself checked the register on the 17tth of November 2000 before she gave him the key to the cabinet. They balanced and closed for the day.
On Monday 20th November 2000 she came to work to hand over her handling over note. As she was in the process of doing so, some persons called to indicate their desire to purchase some U.S. Dollars. She told them that she was on leave, but that she would arrange for the cash to be ready for collection the following day. She then called on Mr. Suleimon Jimoh and Mr. Wale Bakare (1st and 3rd accursed persons in the lower court) and ordered them to go and pick up the sum of $210,000 from the vault, which was downstairs.
Mr. Suleimon and Mr. Wale Bakare and herself, checked the cash, and put it in the fire proof cabinet.
She did not follow them to the vault. She concluded her handling over note and passed same over to her superior office Felix Akahome who minuted on same. Mr. Felix Akahome initialed on the handling over notes that the travelers cheques should be checked by Mr. Adegbusi. It was already getting fate in the day when she got back the handling over note that had been initialed. She told Mr. Jimoh to see if Mr. Adegbusi was on seat, but she was told that he was not. She could not wait and she told Mr. Jimoh that they should meet on the next day which is 21st November 2000, check that the cash and everything was complete and correct, and she left the office.
On the 21st of November 2000, she phoned Mr. Jimoh at about 9.am who told her that neither Mr. Adegbusi nor Mr. Wale Bakare were in the office. There was infact a note addressed to her from the 1st accused person confirming that there was safe of forex in the department on the 21st of November 2000.
She told the 1st and 3rd accused persons not to disclose the amount in the cabinet to Mr. Adegbusi until they were about to self for security reasons. About a month to the incident, she lost a key to the Safe and she reported same to Mr. Felix Akahome who instructed her to write a memo to the general services department for them to do duplicate. She drafted the memo, which she presented to him, but he did not accept same. She re-drafted another and forwarded it to him.
She got to know about the cash that was stolen on the evening of the 22nd of November 2000, but went to the office on the 23rd of November 2000. This is because she had not been home. She came back to meet notes and messages from her co-tenants. She went directly to the inspectorate division where she made a statement.
Evidence was elicited from witnesses between the year 2001 to the year 2007. The hearing of the case was indeed protracted with the prosecution calling two witnesses, PW1 and PW2 respectively. PW1 is Kehinde Obasanya, a Manager with Eko International Bank, and PW2 – Felix Ogemhede Akahome, a banker. The Appellant testified and two witnesses DW1 and DW2 were called for the defence.
Exhibits “A” and “B” were tendered, At the conclusion of hearing, the learned trial Judge convicted the Appellant for the offence of stealing on the 7th of December 2007 while discharging and acquitting her on the first count of conspiracy.
She was accordingly sentenced to 4 (four) years imprisonment with had labour only on the count of stealing-page 321 of the Record of Appeal.
The 1st and 3rd accused persons were however discharged and acquitted on both counts – page 320 of the Record of Appeal.
The Appellant is desirous of prosecuting this appeal, being dissatisfied with the Judgment, and has consequently initially filed Notice of Appeal on the 28th of January 2008, encapsulating 4(four) grounds of Appeal. The Notice of Appeal was amended vide process filed on the 9th of June 2009. Application to do same was granted on the 15th of June 2009.
The Grounds of Appeal, shorn of its particulars, as evident in the Amended Notice of Appeal are:-
Ground 7
The learned trial judge erred in law in convicting the Appellant for the offence of stealing on the basis of circumstantial evidence that is not cogent and compelling.
Ground 2
The learned trial judge erred in law in holding that the Appellant did not raise the defence of alibi thereby failing to properly consider the effect of the said defence.
Ground 3
The trial judge erred in low in holding that the charge of stealing has been proved beyond reasonable doubt.
Ground 4
The decision of the Honourable Court is unreasonable, unwarranted and cannot be supported having regard to the evidence adduced.
The Appellant seeks an order of this Honourable Court setting aside the conviction and sentence of the Appellant of stealing on the 7th of December 2007, and to discharge and acquit the Appellant of the offence of stealing.
Learned counsel filed their respective briefs of argument.
The Appellant’s brief settled by Ahmed Akanbi Esq dated 31st of July 2009 was filed on same day. He also filed a reply brief of argument on the 7th of December 2010.
The Respondent had applied for enlargement of time within which to file his brief of argument, out of time and same was granted on the 27th of November 2010.
A motion on notice to amend the Respondent’s brief of argument was granted on the 23rd of November 2010. The Respondent brief is settled by R.T. Oluwole (Mrs) – Deputy Director of Public Prosecutions, Lagos State Ministry of Justice, Lagos.
Learned counsel adopted their respective briefs of argument on the 19th of January 2012.
The Appellant had proffered 4(four) issues for determination. They are:
(i) Whether there was enough circumstantial evidence against the Appellant, cogent and compelling enough, to lead to the irresistible conclusion that the Appellant committed the offence of stealing.
(ii) Whether the Prosecution’s failure to investigate and/or call as vital witnesses, the security guards on duty on the said day the offence was committed, could not be regarded as a fundamental defect/flaw in the investigation process such that would vitiate the entire trial and render the conviction of the Appellant liable to be set aside.
(iii) Whether the defence of alibi raised by the Appellant was properly investigated and/or evaluated by the trial Court.
(iv) Having regard to the facts of this case, whether the prosecution fully discharged the burden of proof placed upon it and also proved the guilt of the Appellant beyond reasonable doubt,
The Respondent is his amended brief of argument proffered 2 (two) issues for determination. They are
(1) Whether from the totality of the evidence led before the trial judge, the Respondent had proved the charge of Stealing beyond reasonable doubt against the Appellant.
(2) Whether the defence of Alibi con avail the Appellant.
A cursory look at the issues for determination proffered by the counsel to the respective parties, show that these issues coalesce as it were, as they overlap and speak more or less of the same issues that call for determination in this appeal.
In considering this appeal, it is pertinent in my view, to merge the issues of both parties in order to cover the field of dispute between them.
I, however with respect hereby distill the issues for determination as follows:-
(1) Has the charge of stealing against the Appellant been proved beyond reasonable doubt as required by law?
(2) It the answer to No 1 is in the affirmative, where is the proof, direct or circumstantial?
(3) Was any alibi raised by the Appellant? And if the answer is in the affirmative, then, was the alibi investigation?
I am of the humble view that this is the fulcrum of this case. My issues (1) and (2) can safely be taken together, and I shall do just that. Now, the Appellant was charged with the offence of Stealing contrary to Section 350(6) of the Criminal Code Act.
Section 383 (1) of the Criminal Code, stipulates that if the prosecution must establish Stealing against an accused person it must prima facie show that:
(a) There was in existence, a sum of money belonging to the Respondent.
(b) The Appellant took or converted either for her use or to the use of any other person, the sum.
Thus, there has to be evidence of ”TAKING” and the taking must have been fraudulent.
STEALING as defined in Section 390 of the Criminal Code Law has this to say:
“Any person who steals anything capable of being stolen, is guilty of a felony and is liable, if no other punishment is provided to imprisonment for three years.”
In Section 390(6) it says
“If the offender is a clerk or servant, and the thing stolen is the property of his employer or come into the possession of the offender or account of his employer, he is liable to imprisonment for seven years”
In BLACK’S LAW DICTIONARY, 8th Edition at page 1453, stealing is defined as “To take (personal property) illegally with the intent to keep it unlawfully… To take (something by larceny, embezzlement or false pretences.”
The OXFORD ADVANCED LEARNER’S DICTIONARY 7TH EDITION, defines Stealing as “To take from a person, shops without permission and without intending to return it or pay for it”
It is obvious that the word that pervades these definitions is “TAKE”. Therefore it stands to reason that the taking must be proved by cogent and compelling evidence against an accused person, charged with the offence of stealing.
Now, there is evidence from the prosecution witnesses who testified, that the Appellant was not in the office on the date the theft was committed. Indeed there is evidence that she handed over the keys to Jimoh before she proceeded on leave, while Adewale had the combination to the Safe where the money was kept.
None of the prosecution witnesses gave evidence, that the Appellant took from the Safe Cabinet the money belonging to the bank or any other person. It is an elementary principle of law, that where there is no sufficient evidence or evidence, linking the accused with the statutory elements and ingredients of the offence with which he is charged, a Court of trial must as a matter of law, discharge him and it has no business searching and scouting for evidence that is nowhere, and therefore cannot be found. That will not be consistent with our adversary system of administration of Justice – ONAGORUWA VS STATE (1993) 7 NWLR Part 303, 49 at 81-82.
One important thing that pervades the evidence adduced by the prosecution witnesses is that there is possibility that anyone else, apart from the Appellant, could have taken the cash. None of the witnesses linked the accused to the offence throughout the entire gamut of the evidence adduced.
Now Josephine Kehinde Obasanya’s statement at the Force C.I.D was to the intent that she took Mr. Jimoh, Wale Bakare (who were 1st and 3rd accused persons respectively) and Cregg Ogunyinka to the station to make statements. She discovered that Cregg locked the door, while Mr. Jimoh signed for the key and handed it over to the Security. Three of them left before others at 7.17p.m, while others left at 7.50p.m.
Suleimon Jimoh Ajao had testified that on the 20th of November 2000, the Appellant gave him one of the keys to the Safe to ensure banking dual control of the keys to the Safe. That the Appellant ensured that the combination lock only, controlled by Mr. Wale Bakare which means that the Safe can only be opened by the two authorized persons which are Wole Bakare and Suleimon Ajao Jimoh. He said that on the 21st of November 2000, after close of business, the two authorized key holders locked the Safe without, but on the 22nd of November 2000, they met the Safe broken and the sum carted away.
He said he locked the door on the 21st of November 2000, and gave the keys to the Security at the Reception who signed for it. That keeping money in the Safe has been a usual practice in the International department.
In his statement of 28th of November 2000, he said that the key to the fire proof cabinet was given to him by the Appellant on the 17th of November 2000, fact confirmed by the Appellant in her examination in Chief at the lower court. Before then, the key had been with the Appellant.
He says that the key was with him for only four days namely 17/11/2000, 20/11/2000, 21st and 22nd of November 2000 respectively.
He admitted that before the Appellant proceeded on leave, she told him to draft a memo for reproduction of a key and the memo would be signed by her and their Assistant General Manager (International) Mr. Felix Akahome.
PW2 Felix Ogemhede Akahome did say in his examination in chief that the 1st accused person took instructions from the Appellant and that the 1st accused person was instructed by the Appellant to hold on to the key to the Safe while the 3rd accused person had the combination to the Safe.
P.W.1 Kehinde Obasanya did say under Cross-examination that the three people that closed last were the 1st accused, the Secretary and the 3rd accused person.
He testified that the 1st accused had one key, handed over the combination to the 3rd accused because she had reported the loss of the keys – pages 88 – 90 of the Record of Appeal.
P.W.2 said that six weeks into his resumption of work in that bank, he asked the Appellant for the duplicate key to the Safe – page 94 of the Record of Appeal. That the Appellant did not write reporting the loss of the key.
It is trite that where there are gaps, indeed gaping gaps in the evidence of prosecution, it affects the case of the prosecution materially. Failure of the Appellant to report the loss of the key to the cabinet, is not an ingredient of the offence of stealing. There has to be a nexus between the Appellant and the offence of stealing to secure a conviction.
The law is elementary, that in criminal matters, proof of an offence against an accused person must be beyond reasonable doubt. It is against the tenets of Justice to do otherwise. Section 138(1) of the Evidence Act 1990; OGIDI VS. STATE (2003) 9 NWLR Pt.824.
In interpreting the phase “beyond reasonable doubt” the Courts in OGUNBAYO vs. STATE (2002) 15 NWLR Pt.789, 76 at 101 held thus:-
“in Criminal case, the onus is on prosecution to prove its case beyond reasonable doubt. “proof beyond reasonable doubt”,… In other words, the commission of a crime by a person must be proved beyond reasonable doubt. The burden of proof lies on the prosecution and it never shifts. If on the entire evidence, the court is left in a state of doubt, the prosecution would have failed to discharge the onus of proof and the accused will be entitled to an acquitted.”
On a careful and painstaking perusal of the Record of Appeal, encapsulating the proceeding at the lower court, I cannot but notice the following
(1) There is no Police investigating report latent or potent,
(2) The Appellant’s statement to the Police is not complete. At page 23 of the Record of Appeal, the Appellant made a statement on the 26th of November, 2000 where she said inter alia
“In addition to my previous statement of 23/11/2000”
Evidently her statement of the 23rd of November 2000 was not reflected in the Record of Appeal and was never produced by the Police. This point had been brought to the attention of the counsel to the respective parties when they were calld upon to re-address court on the 19th of January, 2012.
Exhibit “B” shows that there was forex transaction at the bank on the 21st of November 2000 – the date the offence was allegedly committed.
There is no evidence to show that the Appellant was sighted at the scene of crime on the date of the alleged commission of the crime.
Interestingly or should I say amazingly, none of the Security guards of the bank was interrogated by the Police.
I agree with the submission of the learned counsel for the Appellant when at page 5, paragraph 3.02 of his brief of arguments, he referred to the case of EME ORJI VS THE STATE (2008) 10 NWLR (Pt.1094) 31 at 35 where Aloma Mariam Mukhtar J.S.C had this to say
“…It is also necessary before drawing the inference of the Accused’s guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference.”
At page 321 of the Judgment, the learned trial Judge had this to say inter alia
“However, the prosecution, though failed to prove the 1st count of the charge against the 2nd accused, has to my mind proved by circumstantial evidence, the guilt of the 2nd accused in respect of the charge of Stealing”
I wonder, really wonder, how she arrived at this hypothesis.
Yes, the Appellant may have been faulty of dereliction of duty, reckless negligence, in the cause of her duties, but where is the evidence of she, taking the cash, whether direct or circumstantial? I can find none.
Sub section (6) of Section 383 of the Criminal Code provides thus:
“A person shall not be deemed to take a thing unless he moved the thing or causes it to move”
It is no gainsaying that in law, suspicion, no matter how strong can secure a conviction – SHEHU VS. THE STATE 2010.
There is even a doubt on my mind, that the alleged amount of money was stolen as there is evidence that forex transaction was carried out on the 21st November, 2000, the date the offence was allegedly committed. Two persons apart from the Appellant had the key and combination to the cabinet.
“Circumstantial evidence” has been defined in the Blacks’ Law Dictionary 8th Edition as “evidence based on inference and not on personal knowledge or observation”
Again it is described as “indirect evidence”. That which is applied to the principal fact, indirectly or through the medium of other facts, by establishing certain circumstances or minor facts, already described as evidentiary, from which the principal facts is extracted and gathered by a process of special inference ” – ALEXANDER M. BURRILL. A Treatise on the Natural Principles and Rules of Circumstantial Evidence. 4 (1868).
Again, it is defined by Williams P. Richardson, The law of Evidence III at (3rd Edition 1928) as
“Evidence of some collateral fact from which the existence or non-existence of some fact in question may be inferred as a probable consequence, is termed circumstantial evidence”.
In the instant case, the prosecution had the burden of proving that the Appellant by, direct, or circumstantial evidence, stole the money, the subject matter of the charge which is $210,000 (Two hundred and ten United States Dollars).
As earlier stated, and at the expense of repetition, it is now firmly established, and the corpus of legal authorities point to the fact, that suspicion, however strong, cannot and will not found or lead to a conviction. In other parlance, it cannot take the place of legal proof. OKAFOR VS. COMMISSIONER OF POLICE (1965) NMLR 89 @ 90; ABIEKE & ANR VS. THE STATE (1975) 9-11 S.C; 97 @ 110; IKHAME VS. POLICE (1977) 6 S.C. 119 @ 122; R.V. WALLACE 23 CAR 52; IDOWU VS. THE STATE (1998) 9 SCNJ 40 A @ 56. No matter how minute the misdemeanor or how large the felony, the onus of proof placed on the prosecution does not shift. I submit, with humility, that it is decidedly better for ten guilty persons to escape, than for one innocent person to, or should suffer. – STEPHEN UKORAH VS, THE STATE (1977) 4 S.C. 167 AT 177; OLAKAIBE V. THE STATE (1990) 1 NWLR. Pt.129 at 632.
In SAIDU VS. THE STATE (1982) 4 S.C 47 at 69-70, Obaseki J.S.C stated inter alia as follows:
“It does not give the Court any joy to see offenders escape the penalty they richly desire, but until they are proved guilty under the appropriate law in our law Courts, they are entitled to walk about in the streets and tread the Nigerian soil and breathe the Nigerian air as free and Innocent men and women
On his part, Sir Mathew Hale is quoted as once remarking that
“it is better that 5 criminals escape justice rather than one innocent person to be punished for an offence he did not commit”
To my mind, there has been established, no compelling, cogent and positive evidence direct or circumstantial, relied upon, that can sustain the conviction of the Appellant.
The evidence before the trial court, in my view was utterly hollow.
I must also say that the investigation of the matter was not carried out by the relevant authority which is the Police. No explanation was proffered for this lapse by the prosecution.
I hold that the charge of stealing has not been established, by any iota of evidence, against the Appellant. And assuming she stole the money, the charge has not been proved by the prosecution beyond reasonable doubt.
These two issues of mine are therefore resolved in favour of the Appellant and against the Respondent.
On the issue of Alibi. In a criminal trial, where an accused puts forth a defence of ALIBI, that he was somewhere else at the relevant time, and not at the scene of the crime, when the offence for which he is charged was committed, he is said to have raised the defence of alibi. The duty is on the prosecution to prove the guilt of the accused person beyond reasonable doubt. Thus, the only duty which the accused person has, is to raise the defence promptly. – YACOR VS. THE STATE (1965) NMLR, 3371; NJOVENS VS. THE STATE (1973) 5 S.C. 17; SALAMI VS. THE STATE (1988) 3 NWLR Pt. 85 at 670; GACHI VS. THE STATE, (1965) NMLR 333.
An accused person is duty bound to furnish the necessary information from which his where about at the crucial time can be checked, and where there is more credible evidence believed by the trial Judge, fixing the accused persons at the scene of the crime, where he is seen committing the offence, the defence of alibi will collapse. AKPAN VS. THE STATE (1991) 5 SCNJ 1; IHEMSON VS. THE STATE (1989) 20 NSCC (Part 11) 471.
Thus, once the defence of alibi has been promptly and properly put up, the burden is on the prosecution to investigate it and rebut such evidence in order to prove the case against the accused person beyond reasonable doubt – ADEDEJI VS. THE STATE (1971) 7 ALL NLR 75; ATTAH & ANOR VS. THE STATE (2010) NMLR 392 at 406.
The Appellant, while testifying at Pages 185-185 of the Record of Appeal, did say that she was not in the office on the 21st of November 2000, the date the money was allegedly stolen.
It seems to me that there is no evidence to show if the prosecution investigated this alibi. No investigating Police Officer testified, and there was no Police Report.
This lacunae, is however without prejudice to the fact that the prosecution has failed to prove its case against the Appellant, beyond reasonable doubt as required by law.
The Appellant did say that she was not in the office at the time of the commission of the offence, as she was on leave and was at home. This fact was never investigated.
The answer to this issue is therefore, that assuming alibi was raised, same was not investigated by the Police, neither did the prosecution prove its case against the Appellant beyond reasonable doubt. This is fatal to the case of the prosecution.
This issue is therefore resolved in favour of the Appellant and against the Respondent.
I am profusely convinced, that I should interfere with the Judgment of the learned trial Judge and I hereby so do.
He was wrong in law to have convicted the Appellant as he did.
It is necessary for me to chastise the Police in this Judgment.
A criminal allegation or trial, in all its ramifications, has to do with the liberty of the subject.
It was imperative for the Police to have investigated this matter, but regrettably they did not do this I wonder why and how the learned trial Judge did not notice this lacuna at the trial.
It is the duty of law enforcement agents, to bond with the judiciary in the due administration of Justice. Afterall, that is why they are called law enforcement agents. It is woeful if the Police is guilty of dereliction of their duties. This would amount to invitation of chaos in the society. I also wonder why the prosecutor in the Ministry of Justice did not deem it proper to have in his possession an important tool as the Police report and an Investigating police officer to testify, in the prosecution of this matter.
These lapses is fatal to the case of the prosecution.
In all, the Appeal succeeds and accordingly the conviction of the Appellant for the offence of stealing, contained in the Judgment of Oyebanji J of the High Court of Lagos State on the 7th of December, 2007, in Charge No. ID/76C/2001 – THE STATE VS. SULEIMAN AJAO JIMOH, OPEYEMI OMOLARA BAJULAIYE, BAKARE OMOLOLU ADEWALE is hereby set aside. The conviction is hereby quashed.
HELEN MORONKEJI OGUNWUMIJU, J.C.A.: I have read the judgment just delivered by my learned sister RITA NOSAKHARE PEMU JCA and I agree with her reasoning and conclusion that the appeal be allowed. I will add a few words.
This appeal is against the judgment of Oyebanji J. of the High Court of Lagos State sitting in Ikeja delivered on the 7th day of December 2007. The 2nd accused person now Appellant was charged at the trial court along with two other persons for conspiracy to commit a felony contrary to section 516 of the Criminal Code and stealing contrary to section 390 (6) of the Criminal Code. The Appellant pleaded not guilty to both offences. At the end of the trial, the learned trial judge found the appellant not guilty of conspiracy to steal, but convicted her of stealing. The Appellant being dissatisfied with the conviction and sentence brought this appeal.
I have decided to consolidate both sets of issues. It seems to me that Appellant’s issue 1 can be subsumed under her issue 4 and as such the issues up for determination in this appeal are distilled by me as follows:
1. Whether the Prosecution’s failure to call vital witnesses can be regarded as a fundamental flaw
2. Whether the defence of alibi can avail the Appellant and whether the failure of the trial court to consider the defence occasioned a miscarriage of justice
3. Whether from the totality of evidence led at the trial court, the Respondent has proved against the Appellant the crime of stealing beyond reasonable doubt.
ISSUE ONE
The Appellant’s counsel Ahmed Akanbi argued that even though it is settled law that the prosecution is not bound to call a particular witness or a host of witnesses to establish its case, failure to call the Bank security guards who were on duty the day the theft took place should have weighed on the mind of the trial judge especially since they had custody of the keys to the office. Counsel argued that the security guards, being vital witnesses ought to have been called by the prosecution. He cited ASAKE VS. NIGERIAN ARMY COUNCIL (2007) 1 NWLR Pt.1015 Pg. 408 at 416; USUFU VS. STATE (2007) Pt.1020 Pg.94 at 109
On the other hand, counsel to the Respondent emphasized that the law is settled under section 129 (1) of the Evidence Act that the prosecution is not obliged to call a host of witnesses and also that the court can convict on the evidence of a single witness where the evidence is cogent, compelling and capable of being believed. Counsel cited USUFU VS. STATE (2007) 1 NWLR Pt.1020 Pg.94.
Counsel then urged this court to hold that the evidence of the security guards is not sine qua non to the determination of the case and as such is not fatal to the prosecution’s case.
There is no doubt that the prosecution is obliged to place before the court all available relevant evidence. If there is a vital point in issue and there is a document or vital witness whose evidence could settle the point one way or another, the evidence ought to be adduced. In STATE V. FATAI AZEEZ & ORS (2008) 14 NWLR Pt.1108 Pg.439/ 4 SC 188 at 209/4 SCNJ 325 at 343- 344, the Supreme Court stated as follows:
“The general law pertaining to calling of witnesses in favour of a party in a criminal trial especially the prosecution is that it is not the requirement of the law that the prosecution must call all conceivable witnesses. The duty on the prosecution as place by Section 138 (1) of the Evidence Act, (Cap 112, LFN, 1990), is to call witnesses to establish their case beyond reasonable doubt… However, in the discharge of that burden, it is the duty of the prosecution to see that it places before the trial court all available relevant evidence. This may not mean that a whole host of witnesses must be called upon the same point, but it does mean that if there is a vital point in issue and there is one witness whose evidence would settle it one way or the other, that witness ought to be called…”
See also OGOALA V. STATE (1991) 2 NWLR Pt 175 Pg 509; USUFU VS. STATE (2007) 1 NWLR Pt.1020 Pg.94. The calling of the security guards would have cast same light on the special circumstances of this case. If the Appellant claimed alibi – that is she was nowhere near the bank when the money was stolen, then the security guards would have been relevant to prove that she indeed had access to the bank or came at anytime within the time frame relevant to the theft and the safe deposit bose or rather that no one else except the Appellant or anyone sent by her had access to the money.
Let us look at the circumstances of this case. The Appellant was convicted mainly on circumstantial evidence. The other two persons charged with her were acquitted. None of them was found guilty of the offence of conspiracy to steal. If as she claimed, she was not at the scene of crime, it was essential for the prosecution to call the security guards to prove that she had the opportunity to have stolen the money. In other words, the failure of the prosecution to call the security guards would be an issue to the extent that they were not called to confirm whether or not the Appellant came back to the premises during the time the theft occurred. I would resolve this issue in favour of the Appellant.
ISSUE TWO
Appellant’s counsel, in this regard, submitted that once a defence of alibi has been promptly and properly raised, the burden is on the prosecution to investigate it and rebut such evidence in order to prove its case beyond reasonable doubt. Counsel cited ADEDEJI V. STATE (1971) 7 ALL NLR 75. Counsel then argued that the facts at the trial court deducible from the evidence led by the prosecution and the defence suggested that the Appellant commenced her leave on the 20th of November 2000 and was not at any time sighted within the premises of the bank on the 21st of November.
Counsel argued that though the defence was not specifically pleaded, the trial court had the duty to consider any defence that arises from the totality of evidence led by both sides, Counsel further argued that in the instant case, the failure of the trial court to consider the defence of alibi especially since it was not refuted by the prosecution, has occasioned a miscarriage of justice. Counsel cited ISAH VS. STATE (supra); NWUZOKE VS. STATE (1988) 1 NWLR Pt. 72 Pg.529; UNUOHA VS. STATE (1983) 3 NWLR Pt 83 Pg.460; SHADE vs. STATE (2005) 12 NWLR Pt.939 Pg.301
In reply, Respondent’s counsel submitted that the defence of alibi raised by the Appellant cannot avail or exonerate the Appellant Counsel relied on the provisions of Section 7 of the Criminal Code Law of Lagos State 2003.
(a) When an offence is committed, each of the following persons is deemed to have committed the offence and to be guilty of the same and may be charged with actually committing same, that is to say:
(b) Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence
(c) Every person who aids another person in committing the offence
Counsel submitted that the import of this provision is that when a person facilitates the commission of an offence, he cannot exonerate himself because he was not caught red-handed and would be charged with the offence as if he had personally and physically committed the offence. Counsel then averred that there was enough evidence before the trial court to show that the Appellant had either committed the offence of stealing or had facilitated it and that when facts are not contradicted and challenged, the court is bound to believe and act on it. He cited OFORTETTE V. THE STATE (2000) 12 NWLR Pt 681 Pg.415.
There is no doubt in my mind that the defence of alibi where acceptable is an absolute defence to any crime.
In Aremu v. State (1991) 7 NWLR Pt.201 Pg. 1 At Pg., it was held as follows:
“Alibi is a defence that places the accused person at the relevant time of crime in a different place from the scene of crime and so removed therefrom as to render it impossible for him to have committed the offence.”
see also AKPAN v. STATE (1991) 3 NWLR (pt.182); AIGUOREGHIAN V. STATE (2004) 3 NWLR (Pt.860). Immediately the Appellant denied the allegation and the charge and insisted that she had proceeded on leave at the time of the theft, she had raised the defence of alibi – thus it was the duty of the trial judge to consider the defence of alibi even if it was not formally raised by the defence. This is because it is the duty of the court to carefully consider all defences raised by the evidence on record even if the defence does not raise it specifically regardless of whether it is weak or stupid. See Abdullahi Ada v. The State (2008) 4 SCNJ 285; Usman Kaza v. The State (2008) 2 SCNJ 373. For the defence of alibi to avail an accused, the accused has a duty to bring forward the facts relating to the defence to enable the prosecution investigate the facts. It is not the duty of the accused to prove the defence. See Friday Aighoreghian & Anor v. The State (2004) 1 SCNJ 65
It is conceded that section 7 of the Criminal Law of Lagos State made the accessory before the fact and an accessory to the crime equally liable and guilty of the offence. That would have been the case here is there was direct evidence that the Appellant aided anyone to commit the offence by her presence on the premises at the time the money was stolen. Taken further, if the prosecution had proved that she gave the key to the safe to a third party or made it accessible to that person. Other people including those charged with her all had access to the safe while she was on leave. I believe her explanation that the money was transferred from the vault to the safe because it would make it accessible the next day to prospective customers. It may have been an error of judgment but people are always wiser with hind sight. In any event I am of the firm view that if there was no evidence of conspiracy and there is no evidence that other people apart from the original accused persons could have been facilitated by the Appellant, the defence of alibi is available to her as an absolute defence to the crime and she cannot be convicted under section 7 of the Criminal Law of Lagos State. This issue is resolved in favour of the Appellant.
ISSUE THREE
Appellant’s counsel argued that mere suspicion no matter how strong cannot ground a conviction and that in the absence of cogent and compelling evidence to forcibly suggest the accused had committed the offence, the trial court was wrong in convicting the appellant. He cited STATE VS. EDOBOR (1975) 9-11 SC 69 at 77; ISAH VS. STATE (2007) 12 NWLR Pt 1049 Pg.582 at 585; ADENIJI V. STATE (2001) 13 NWLR Pt.730 Pg.375; ADEPETU VS. STATE (1988) 9 NWLR Pt.565 Pg.185.
Counsel pointed out the fact that the Appellant had commenced her annual leave on the 20th of November, 2000 and on that same day had ordered that a sum of money be moved from the vault to the fireproof safe because some customers of the bank were supposed to pick up the said money the following day (21st of November). Counsel further pointed out that the money was stolen between the 1st and 22nd of November, two days after the Appellant had commenced her annual leave. Counsel then argued that it was not possible by any stretch of imagination that the Appellant could have ordered the money moved so that she could return to steal it two days later and as such the inference drawn by the learned trial judge to this effect was premised on gross suspicion and not borne out of any evidence before the trial court. He cited UNOKA VS. AGITI (2007) 11 NWLR Pt 1044 Pg.122 @ 130; ADEKUNLE VS. STATE (2006) 14 NWLR Pt.1000 Pg.717 @ 737; ESAM vs STATE (1976) 11 SC 49; NAMSOH VS. STATE (1993) 5 NWLR Pt.292 Pg.129.
Counsel submitted that in a criminal trial, it is the duty of the prosecution to prove its case beyond reasonable doubt and as such where there are inconsistencies and contradictions in the prosecution’s case, it is not the function of the trial court to offer explanations unless the prosecution provides answers. He cited AKALEZI vs. STATE (1993) 2 NWLR Pt.273 pg.1; PRINCENT VS. STATE (2002) 18 NWLR Pt.798 Pg.49; NAMSOH VS. STATE (1993) 5 NWLR Pt.292 Pg.129.
Counsel then submitted that the prosecution had failed to establish the guilt of the Appellant beyond reasonable doubt especially since the evidence of PW2, DW1 & DW2 revealed that other persons had access to the safe where the stolen money was kept.
In response, counsel to the respondent submitted that there are three methods of proving the guilt of an accused person as stated by the Supreme court in Emeka vs. state (2001) 6 SC 277. They are by confessional evidence, circumstantial evidence and evidence of an eye witness’ counsel argued that since there is no confessional statement or any eye witness in this case, it was enough for the prosecution to adduce cogent and sufficient circumstantial evidence which irresistibly points at the guilt of the Appellant. Counsel further submitted that circumstantial evidence is based on inference and not personal knowledge and an accused person can be convicted of cogent circumstantial evidence counsel highlighted the case against the Appellant. He pointed out that the Appellant by her own admission had both the combination lock of the safe as well as the original and duplicate keys and that when the original key allegedly got missing, she started using the duplicate which she handed over to the 1st accused on commencement of leave without properly reporting the loss of the original key. Counsel also pointed out the fact that the appellant who was already on leave on the 20th of November ordered money to be moved from the vault to the safe when the practice of the bank was not to keep cash in the safe overnight. Counsel argued that the Appellant had enough time to ensure that the money was moved but never bothered to officially report the missing key to the safe. Counsel further pointed out that the Appellant had called the 1st accused to confirm that the money was indeed in the safe on the 21st of November and the money was discovered missing by 7am on the 22nd of November. Counsel also pointed out that only the money ordered to be moved by the Appellant was stolen, other valuables were left intact.
Counsel then submitted that the evidence at the trial court pointed at the Appellant as the one who either stole of facilitated the stealing of the money. Counsel averred that proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. Counsel cited the case of HASSAN v. STATE (2001) 6 NWLR Pt.709 Pg.286
I am of the firm view having read the evidence on record that there are minor different items or events that may appear suspicious when taken as a whole but cannot constitute hard evidence on which the Appellant could be convicted
In Abacha v. The State (2002) 7 SCNJ 35, the Supreme Court held that suspicion however well placed does not amount to prima facie evidence. In Adeniyi v. Governing Council Yabatech (1993) 6 NWLR Pt.300 Pg 426 at 432 the Supreme Court held as follows per Karibi Whyte JSC.
“Suspicion however showing cannot support inference of guilt. It is still wavering accusing finger of suspicion, guilt can only be accepted when the wavering finger stops wavering and stand stringent and erect pointing unwaveringly at the accused.”
Combining different incidents of suspicion do not elevate them beyond the realm of suspicion. They remain suspicion. See Adio & Anor v. The State (1986) 2 NWLR Pt 24 Pg.381 at 395. In Sule Ahmed v. The State 1 NSCOR 273 at 290 Ayoola JSC said of suspicion thus:
“Our criminal justice system loses its essential requirement of proof by evidence beyond reasonable doubt if persons accused of crime are connected on mere suspicion or on mere speculation, however intelligent that may be, notwithstanding the inadequacy of evidence whatever the reason for the inadequacy of evidence or absence of essential evidence may be is immaterial to the duty of the court not to convict an accused of an offence not proved by evidence.”
The Appellant may be proved to have been careless about the Bank’s money and failed in her duty of care, but I do not think carelessness is one of the mens rea or mental element to prove the offence of stealing.
I am of the firm view that the evidence adduced by the prosecution amount to strong suspicion but cannot constitute evidence beyond reasonable doubt on which to convict the Appellant of the offence of stealing. I set aside the conviction of the trial court, I hereby discharge and acquit the Appellant. I abide by all orders in the lead judgment.
SIDI DAUDA BAGE, J.C.A.: I have read in draft the judgment just delivered by my learned brother PEMU, JCA and I am in complete agreement with him that the appeal succeeds.
Appearances
Ahmed Akanbi Esq.For Appellant
AND
R. T. Oluwole (MRS) – Deputy Director of Public Prosecutions, Lagos State Ministry of Justice with her M. B. Olaniyi – Director in the Department of Public Prosecutions and Mrs. C. R. Odutola – Attorney General Chambers, Directorate of Public Prosecutions, Ministry of Justice, Lagos State.For Respondent
