MUFUTAU OWOLABI v. THE STATE
(2014)LCN/7518(CA)
In The Court of Appeal of Nigeria
On Friday, the 7th day of November, 2014
CA/I/358/13
RATIO
CRIMINAL LAW: CONVICTION; THE CONDITIONS THAT MUST BE FULFILLED FOR AN ACCUSED TO BE CONVICTED FOR A LESS OFFENCE
In Adeyemi vs. State (1991) 6 NWLR part 195 p.1 also reported in (1991) 7 SC part 11 p.1, the Supreme Court stated the position of the law as follows:
“It is useful to understand that for an accused to be convicted for a lesser offence, the following conditions must be fulfilled. First, the elements in the offence charged and those in the lesser offence for which the accused is convicted must be the same.
Secondly, the evidence adduced and the facts found must be insufficient for convicting in respect of the offence charged, but at the same time support the lesser offence in respect of which the accused was convicted”. per. OBIETONBARA DANIEL-KALIO, J.C.A.
EVIDENCE: BURDEN OF PROOF; THE BURDEN OF PROOF IN CRIMINAL TRIALS
In all Criminal trials, the burden or onus of proof is always on the prosecution to prove its case beyond reasonable doubt. If the judge has any doubt at all, he must give the accused person the benefit of that doubt. See Okputu Obiode & Ors. vs. The State (1970) ALL NLR 36; Kalu vs. State (1988) NWLR part 90. p. 503. per. OBIETONBARA DANIEL-KALIO, J.C.A.
JUSTICES
OBIETONBARA DANIEL-KALIO Justice of The Court of Appeal of Nigeria
MUDASHIRU NASIRU ONIYANGI Justice of The Court of Appeal of Nigeria
NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria
Between
MUFUTAU OWOLABI Appellant(s)
AND
THE STATE Respondent(s)
OBIETONBARA DANIEL-KALIO, J.C.A. (Delivering the Leading Judgment): On appeal before us is the judgment of the lower court in a criminal matter. The appellant was arraigned before the lower court, that is, the High Court of Oyo State, on a two count charge as follows:-
COUNT I: That you MUFUTAU OWOLABI ‘M’ aged 28 years and one other at large on the 29th day of January, 2009 at about 10pm at Shasha Ojoo area, Ibadan in the Ibadan Judicial Division did conspire together to commit a felony to wit: armed robbery and thereby committed an offence contrary to and punishable under Section 6(b) of the Robbery and Firearms (Special Provisions) Act Cap. R.11 Laws of the Federation of Nigeria, 2004.
COUNT II: That you MUFUTAU OWOLABI ‘M’ aged 28 years and one other at large on the same date, time and place in the Ibadan Judicial Division while armed with dangerous weapon such as a big rod did rob one Alhaji Abubakar Mustapha of the sum of N2, 000,000 (Two Million Naira) and thereby committed an offence contrary to and punishable under Section 1(1) and (2)(b) of the Robbery and Firearms (Special Provisions) Act Cap. R.11 Laws of the Federation of Nigeria, 2004″.
After hearing four witnesses from the prosecution and the same number of witnesses for the defence and considering the closing arguments of counsel on both sides, the learned trial judge came to the following verdict. His words:
“From the evidence before the court the accused person is found guilty of robbery and convicted accordingly”.
He then proceeded to hand down his sentence: Again, his words:
“Since the provision of Section 1(1) of the Robbery and Firearms (Special Provisions) Act Cap R. 11 Laws of the Federation of Nigeria is mandatory, the accused person is sentenced to 21 years imprisonment. The sentence shall start to run from the date of his detention in prison custody”.
Dissatisfied with the conviction and sentence, the appellant filed a Notice of Appeal against the judgment on 22/7/2013. The judgment was delivered on 3/7/2013. The appellant sought in the Notice of Appeal, to overturn the judgment on four grounds. In each of the grounds he gave particulars of the errors made by the trial judge in the judgment. The grounds of appeal, excluding the particulars of error are as follows:-
1. The decision of the learned trial judge is wrong in law because the prosecution did not prove the commission of the offence of Robbery under Section 1(1) of the Robbery and Firearms (Special Provisions) Act Cap R. 11 Laws of the Federation of Nigeria beyond reasonable doubt against the Appellant.
2. Having regard to the evidence on record, the decision of the trial court is unwarranted and unreasonable.
3. That the learned trial judge erred in law when he held that the appellant had a common intention with persons unknown, to rob; and
4. The conviction of the appellant by the learned trial judge for conspiracy to rob is wrong in that the charge of conspiracy to rob was not established against the appellant beyond reasonable doubt.
In the Appellant’s Brief of Argument settled by Adekunle Ojo Esq. filed in court on 20/11/13 and argued on 16/10/14, three issues for determination were formulated. They are –
1. Whether the trial judge did not err in law when he held the appellant guilty of the offence of robbery when in fact the prosecution did not prove the commission of the offence of robbery under Section 1(1) of the Robbery and Firearms (Special Provisions) Act Cap R. 11 Laws of the Federation of Nigeria beyond reasonable doubt against the appellant. (This issue is predicated on ground 1 of the grounds of appeal).
2. Whether the trial judge did not err in law when he held the appellant guilty of conspiracy to commit a felony in view of the fact that the prosecution failed to establish the offence of conspiracy against the appellant beyond reasonable doubt. (This issue emanated from grounds three and four of the grounds of appeal).
3. Whether the failure of the learned trial judge to properly evaluate all the evidence on record did not occasion a miscarriage of justice to the appellant. (This issue is based on ground two of the grounds of appeal).
The Respondent’s Brief of Argument was settled by F.B. Segun-Olakojo (Mrs.) the Director, Legal Drafting and Parliamentary Counseling in the Ministry of Justice of Oyo State. The Brief of Argument was filed on 22/9/14 but by an order of this court, deemed as properly filed and served on 22/9/14. The Respondent’s Counsel identified two issues for determination in this appeal, to wit:
1. Whether from the evidence adduced by the Respondent at the trial court it had proved the offences of conspiracy to commit armed robbery beyond reasonable doubt; and
2. Whether the trial judge was right in convicting the Appellant for the lesser offence of Robbery and not Armed Robbery.
Although the Respondent identified two issues for determination as against three issues identified by the Appellant, the issues formulated by both of them are not too different. I will consider this appeal by following the issues identified in the Appellant’s Brief of Argument. I choose to begin with issue 2 for reasons that will be made clear shortly. That issue as will be recalled is whether the trial judge did not err in law when he held the appellant guilty of conspiracy to commit a felony in view of the fact that the prosecution failed to establish the offence of conspiracy against the appellant beyond reasonable doubt. Clearly the issue is anchored on the premise that the appellant was found guilty or to use the language used in formulating the issue “held” guilty of conspiracy. No doubt, the learned trial judge considered the issue of conspiracy and came to a finding. In his judgment particularly at page 62 of the Record of Appeal, the learned trial judge stated as follows:-
“PW1 was the victim when the incident happened. The evidence he gave was that somebody emerged from nowhere when the accused person hit him on the head the second time and ran away with his money contained in the nylon bag. PW2 stated that he saw the second person running away when he got to the scene with the money.
Judicial authorities have held that conspiracy is usually a matter of inference from surrounding facts and circumstances. See Clark vs. The State (1986) 4 NWLR part 35 p.86 (2) Gbadamosi vs. The State (1991) 6 NWLR part 196 p.182.
From the available evidence on record, there was no other person at the material time within the vicinity of the incident apart from the accused person, PW1 and the person at large who allegedly went away with PW1’s money in the nylon bag when the accused person hit PW1 on the head the second time.
The inference to be drawn from the surrounding circumstances is that the accused person was in agreement with the person at large to rob PW1 of his money. This is because if they had not conspired, how come that it was when PW1 was hit on the head that somebody emerged who snatched the money?
It is therefore my respectful view that the first count has been proved against the accused person”.
Having concluded that the first count was proved against the appellant as shown in the above passage, the question that arises is whether the learned trial judge convicted and sentenced the appellant on that count. For an answer to this poser, it is necessary to look at the conviction and sentencing order of the trial judge. It reads:
“From the evidence before the court, the accused persons is found guilty of robbery and convicted accordingly.
Sentence
Since the provision of Section 1(1) of the Robbery and Firearms (Special Provisions) Act Cap R. 11 Laws of the Federation of Nigeria is mandatory the accused person is sentenced to 21 years imprisonment…”
Clearly from the above, inspite and despite the finding of the learned trial judge that the count of conspiracy was proved against the appellant he failed to convict and sentence him on account of conspiracy. That being the case, I see no reason other than a purely academic one, to challenge the finding of the trial judge or to make an issue out of the finding. I say so because dwelling on the finding of the trial judge on the question of conspiracy and deciding on it in this court will not entitle the appellant to any particular favour of this court. I am guided in this regard by the words of the Supreme Court in the case of Chief Onwuka Kalu vs. Chief Victor Odili & Ors. (1992) NWLR part 340 p.130 at p.167 thus:
“As we have said before on several occasions, an issue for determination in an appeal must not only arise from and relate to the grounds of appeal filed and no more, but also must be such a proposition of law or of fact or both so cogent, weighty and compelling that a decision on it in favour of a party to the appeal will entitle him to the judgment of the court.”
I will disregard issue 2.
I think that issue 1 and 3 can be considered together. As will be recalled, issue 1 is whether the learned trial judge did not err in law when he held the appellant guilty of the offence of robbery when that offence was not proved beyond reasonable doubt. Issue 3 as will be recalled is whether the failure of the learned trial judge to properly evaluate all the evidence on record did not occasion a miscarriage of justice.
Arguing the issues separately, appellant’s counsel Adekunle Ojo Esq. submitted that there are many unanswered questions in the testimony of the prosecution witnesses which raise doubts about the involvement of the appellant in the attack on PW1. It was submitted that whenever a doubt is created in the mind of the court, the case against an accused person is said not to have been proved beyond reasonable doubt. We were referred to Onuoha vs. State (1989) 2 NWLR part 101 p.23 at p.38; Chukwu vs. The State (1996) 7 NWLR part 463 p.686.
On the identity of those who robbed PW1, learned counsel pointed out that the alleged robbery attack took place at night in a condition where there was no light and wondered how PW1 could have seen his attackers in the darkness. Learned Counsel argued that PW1 apparently held on to the next passer-by that he saw after the attack on him and that person unfortunately, happened to have been the appellant.
On the weapon (a stick) used in committing the robbery, learned counsel submitted that it was not produced in evidence and it was also not recovered from the scene of crime when the PW4 visited the scene.
With regard to the money allegedly stolen, learned counsel argued that only the shop attendants of PW1 knew that PW1 was taking the money home.
Learned Counsel submitted that PW1 and PW2 were not credible witnesses but that the evidence of the appellant on the other hand was credible and believable. He urged that the prosecution failed to prove the essential elements of the offence of robbery.
Learned Counsel submitted that the lower court relied on doubtful, equivocal and unconvincing circumstantial evidence in convicting the appellant, and that it was wrong for the lower court to have done so. He relied on the case of Joseph Lori vs. State (1980) 8 – 11 SC 81 and submitted that the lower court acted based on the reasoning disapproved of in that case that since the court did not know who committed the offence, and since the appellant had some evidence against him, the appellant would be found guilty. Learned Counsel referred us to pages 19 – 21 of the judgment of the lower court where the trial judge disbelieved the prosecution as to the weapon used in the commission of the offence. Learned Counsel could not understand why having held that the second count of the charge against the appellant was not proved, the trial judge still went ahead to convict him.
Learned Counsel referred us to the medical reports. Exhibits B, C and C1 and submitted that they were merely indicative of the fact that PW1 was attacked, and not that it was the appellant that attacked him.
Learned Counsel submitted that throughout the judgment of the lower court, there was no evaluation of the elements of the offence of robbery. The conviction of the appellant for the offence he argued was based on speculation. We were urged to reverse the decision of the lower court and discharge and acquit the appellant.
In her argument on the issue under consideration, F.B. Segun-Olakojo (Mrs.) submitted that the conviction of the appellant for the offence of robbery was based on the evidence before the court. Learned counsel referred to the case of Otti vs. State (1991) 8 NWLR part 207 p.103 at 118 for the ingredients of the offence of Robbery. Learned Counsel referred to the evidence of PW1 at page 19 to 20 of the Record of Appeal and submitted that the evidence shows that the only person with the PW1 when he was hit with the stick was the appellant. According to learned counsel, the evidence of the appellant as to what transpired before the commission of the crime, conflicted with the evidence of DW2, his girlfriend or wife.
Learned Counsel referred us to Exhibit B the medical report and Exhibit C and C1 a photograph and negative and submitted that they confirm that PW1 was attacked with a weapon at the scene of crime.
Learned Counsel submitted that the doubt created in the mind of the judge was only in respect of the nature of the weapon used by the appellant and did not affect the evidence sufficiently given that linked the appellant to the commission of the crime. We were urged to dismiss the appeal for lacking in merit.
I have carefully read the judgment of the learned trial judge and I really cannot see the reason that justifies the finding that the appellant was guilty of the offence of robbery. In order to appreciate why I find it difficult to see the reason that justified the conviction, it is necessary to state in extenso the finding of the learned trial judge at page 19 – 21 of the judgment contained in page 65 – 67 of the Record of Appeal. This is what his lordship said:
“The crucial question to be answered in this case is what is the offensive weapon used by the accused person on PW1 on that day?
From the evidence before the court, the prosecution maintained that what the accused person used on PW1 was a stick or wood as stated in the charge while the accused person maintained that he did not hit PW1 on the head with any stick or wood.
As earlier stated, it is the duty of the prosecution to prove the case against the accused beyond reasonable doubt.
The evidence before me shows that when PW1 held on to the accused person at the time he said he was hit on the head, his shout attracted PW2 and other people within the vicinity of Shasha Market.
Throughout the evidence of the prosecution, the said stick or wood was not produced in court. In fact there is no evidence that the said stick or wood was even recovered from the scene or taken to the police station.
I believe since the accused person was arrested immediately at the scene of the attack, the said stick or wood ought to have been taken to the police station…….
…………………….
From what has been said above, I have my doubt on what was the offensive weapon said to have been used on PW1. There are authorities to the effect that where there are doubts in the mind of the court, the doubts ought to be resolved in favour of the accused……..
An offence of Robbery with Firearms is said to have been committed when at the time of the commission of the robbery the accused is proved to have been armed with “firearms” or “offensive weapons” within the meaning of the Robbery and Firearms Act. See Ikemson vs. The State (1989) NWLR part 110 p.455.
Also the Supreme Court in Dibie & Ors v. The State (2007) 9 NWLR part 1038 p.30 defines offensive weapon as “object made use of and the manner it is made use of that qualifies it to be an offensive weapon”.
Since I have held that I have my doubts as to whether the accused person was armed with an offensive weapon, it means in effect that the second count of the charge has not been proved.
From the evidence before the court, the accused person is found guilty of robbery and convicted accordingly.” (underlining supplied by me).
From the above passage, it is clearly non-sequitur that because the second count (it is actually the 1st count) of armed robbery has not been proved, then robbery has been proved. Such a conclusion is perverse.
Robbery as defined in Section 11 of the Robbery and Firearms (Special provisions) Act means-
“Stealing anything and at or immediately before or after the time of stealing it, using or threatening to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained”.
The case of the prosecution in the lower court is that the appellant while armed with a dangerous weapon such as a big wood robbed Alhaji Abubakar Mustapha (PW1) of the sum of N2 Million. See count II of the charge before the lower court at page 2 of the Record of Appeal. The wood or stick was therefore clearly identified as the weapon used by the appellant. From the judgment of the lower court quoted above, the trial judge clearly stated that “throughout the evidence of the prosecution, the said stick or wood was not produced in court”. He also said “I have my doubts on what was the offensive weapon said to have been used on PW1. He further said quite rightly, that “there are authorities to the effect that where there are doubts in the mind of the court, the doubts ought to be resolved in favour of the accused”.
Having been satisfied that the prosecution raised doubts about the appellant using a big stick or wood, there is no basis for convicting the appellant of robbery because even the offence of robbery has “actual violence” as an element and that element in this case could only have been carried out by the stick or wood, which the learned trial judge had doubts about.
In Adeyemi vs. State (1991) 6 NWLR part 195 p.1 also reported in (1991) 7 SC part 11 p.1, the Supreme Court stated the position of the law as follows:
“It is useful to understand that for an accused to be convicted for a lesser offence, the following conditions must be fulfilled. First, the elements in the offence charged and those in the lesser offence for which the accused is convicted must be the same.
Secondly, the evidence adduced and the facts found must be insufficient for convicting in respect of the offence charged, but at the same time support the lesser offence in respect of which the accused was convicted”.
Having found that there were doubts about the weapon (wood/stick) used for the commission of armed robbery, the same doubt should also apply to the element of “actual violence” required to support the commission of the offence of robbery since that element in this case as earlier noted is nothing other than the alleged use of the wood or stick. The doubt about the stick could not have been insufficient for a conviction for armed robbery but sufficient for a conviction for a crime of robbery. The doubt should apply in this case, not only to the weapon allegedly used in the offence of armed robbery but also the weapon that amounted to actual violence sufficient to convict for robbery which weapon is the self same wood or stick.
In all Criminal trials, the burden or onus of proof is always on the prosecution to prove its case beyond reasonable doubt. If the judge has any doubt at all, he must give the accused person the benefit of that doubt. See Okputu Obiode & Ors. vs. The State (1970) ALL NLR 36; Kalu vs. State (1988) NWLR part 90. p. 503.
Did the prosecution prove the case against the appellant beyond reasonable doubt? I think that the evidence led before the lower court was so porous that one could drive a horse and coaches through it. The evidence of PW1 was that at about 9.30pm on the day of the incident he saw the appellant coming towards him on a narrow path that could take only one pedestrian at a time. The evidence received under cross-examination of PW1 was that there was no electric power at the place. In the circumstances, identification of who actually committed the offence cannot be straight forward or made of iron. If the path was as narrow as described by PW1 how come that people from the nearby Shasha market were able to gather and squeeze in there after the appellant shouted for help? Such a gathering of people there is not consistent with the evidence that the path was so narrow that it could only take one pedestrian at a time. The trial court appeared to have readily accepted that the appellant was one of the robbers without pondering about these implausible conditions. The only incontrovertible evidence was that the appellant was at the scene of crime. Did the learned trial judge discountenance mere happenstance? There was no evidence that the appellant knew that the PW1 was carrying a large sum of money. There was no evidence that the appellant was a mere street urchin or one described in Nigerian parlance as “area boy” engaged in carrying out an opportunistic crime. Instead, the PW1 himself gave evidence that was quite revealing and material. He stated that his shop attendants knew that he had the sum of Two Million Naira on him. Surely, the shop attendants were material witnesses that should have been called.
While it is true that the prosecution has discretion as to who to call as a witness, it is equally clear that where a vital and or material witness is not called, such a failure would be fatal to the case of the prosecution. See per Kutigi JSC (as he then was) in the case of Alake vs. State (1992) NWLR part 265 p.260. I think the failure to call the shop attendants of the PW1 is also fatal to the case of the prosecution.
Denique censeo the conclusion that the appellant committed the offence of robbery is perverse. It is also my conclusion that the case against the appellant has a surfeit of doubts and therefore was not proved beyond reasonable doubt. In the final analysis, the appeal is allowed. The conviction and sentence of the appellant are hereby set aside and instead, the appellant is hereby discharged and acquitted.
MUDASHIRU NASIRU ONIYANGI, J.C.A.: I have read in draft the judgment just delivered by my learned brother OBIETONBARA DANIEL-KALIO, JCA and I agree entirely with the reasoning conclusion and the consequential order.
Let me add, the standard of proof in criminal cases is proof beyond reasonable doubt. See Section 135 (1) of the Evidence Act 2011 as amended. That is to say that the requirement of proof beyond reasonable doubt is a policy of our law, which is derived from the fact that human justice has its human limitations. It is not given to human justice to see and know as the great external knows the thought and actions of all men. Human justice has to depend on evidence and inferences hence the court gives the benefit of any reasonable doubt to an accused person – See the case of Ukwumnenyi v. The State (1989) 7 SC (pt. 1) 64 at 88 para 10-20.
The learned trial court having reached the conclusion at pages 19-20 of its judgment contained in pages 65-67 of the Record of Appeal, ought to have resolved its doubt in favour of the appellant. Making a “U” turn or rather an up step and jump to come to the conclusion of a finding of guilt constitutes a miscarriage of justice in the case at hand. See the case of Osuolale v. State (1991) 8 NWLR (pt. 212) 770 at 773.
In view of the foregoing and the sound and fuller reasons given by my learned brother I cannot but also allow this appeal. The appeal be and is hereby allowed. The conviction and sentence of the appellant be and is hereby set aside and the appellant is discharged and acquitted.
NONYEREM OKORONKWO, J.C.A.: In criminal trials, particularly those involving life and long terms of imprisonment, extreme care should be taken to ensure that the prosecution proves its case beyond reasonable doubt. Not even a lingering doubt should be discountenanced.
As my lord Daniel-Kalio JCA, found upon a calm review of this appeal, there are numerous circumstances particularly that of identification that should have evinced the doubt or suspicion or inquiry of the trial Judge that would have been resolved in favour of the accused notwithstanding that he could have been guilty.
I agree with his Lordship Daniel-Kalio JCA that such extenuating circumstances exist in this case to justify a different finding by the trial Judge. I agree with the lead judgment.
Appearances
ADEKUNLE OJO with OLUWATOSIN ADEGUNFor Appellant
AND
MRS F.B. SEGUN OLAKOJO (Director Legal Drafting and Parliamentary counseling) Oyo State Ministry of Justice with MRS N. I. SHITTU (State Counsel)For Respondent
