NANGI DOKUBO v. THE STATE
(2011)LCN/5069(CA)
In The Court of Appeal of Nigeria
On Monday, the 18th day of July, 2011
CA/PH/157/2007
RATIO
ON WHOM LIES THE BURDEN TO PROVE THE GUILT OF AN ACCUSED
Firstly, it is certainly the cardinal principle of our criminal law that in all cases the burden of proving that any person is guilty of a criminal act, subject to certain exceptions, is on the prosecution. Again, the law requires that the guilt of an accused person must be proved beyond reasonable doubt and where there is any doubt as to the guilt of the accused benefit of the doubt must be given to the accused. See Onafowokan v. The State (1937) 3 NWLR (Pt. 61) 536 at 545, Onubogu v. State (supra) Okagbue v. Commissioner of Police (1965) NMLR 232 and R v. Lawrence (1932) 11 NLR 6. PER. MUSA DATTIJO MUHAMMAD, J.C.A.
THE POSITION OF THE LAW WHERE THERE ARE INCONSISTENCIES IN THE EVIDENCE OF THE PROSECUTION ON MATERIAL FACTS
Secondly, once there are inconsistencies in the evidence of the prosecution on material facts these must be resolved by the prosecution and it is not the duty of the judge to provide explanation for the inconsistencies. The judge is an independent and impartial arbiter whose duty is limited to acting on the evidence presented before him. See Mohammed v. State (1991) 5 NWLR (Pt. 192) 438, Ibrahim v. State (1991) 4 NWLR (Pt. 136) 399, State v. Emine (1992) 7 NWLR (Pt. 256) 658 v.667 and Onubogu v. State (supra). PER. MUSA DATTIJO MUHAMMAD, J.C.A.
THE DUTY OF THE PROSECUTION TO DISCLOSE ALL IMPORTANT AND MATERIAL EVIDENCE
Thirdly, learned appellant counsel is also right that in a criminal trial the prosecution is duty bound to disclose all important and material evidence and where it deliberately withholds such evidence, section 148 (d) of the evidence Act will be involved in favour of the accused person and against the prosecution. See Apayemi v. State (1985) 2 NWLR (Pt. 5) 101, and Abudu v. State (1985) 1 NWLR (Pt. 1) 55. PER.MUSA DATTIJO MUHAMMAD, J.C.A.
Before Their Lordships
MUSA DATTIJO MUHAMMADJustice of The Court of Appeal of Nigeria
EJEMBI EKOJustice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYEJustice of The Court of Appeal of Nigeria
Between
NANGI DOKUBOAppellant(s)
AND
THE STATERespondent(s)
MUSA DATTIJO MUHAMMAD, J.C.A. (Delivering the Leading Judgment): The Appellant, Nangi Dokubo alias Hassan, was tried and convicted by the Rivers State High Court coram Ogbuji J. for armed robbery contrary to section 1(2) (a) of the Robbery and Firearms (special provisions) Act Cap 398 Laws of the Federation 1990.
The appellant was arraigned and charged for the robbery he committed on 21st February 2002 while armed with a gun and a machete. He is said to have robbed PW3 a double 75 HP Yamaha out board Engine boat. The prosecution relied on six witnesses four of whom, PW1, PW2, PW3 and PW4, were eye witnesses while PW5 and PW6 are the investigating police officer and the doctor who treated PW3 following the injury inflicted on him by the appellant during the robbery. The appellant gave evidence in his own defence. At the end of trial the lower court decided that the prosecution had proved its case beyond reasonable doubt and convicted the appellant accordingly. Aggrieved by the conviction and sentence, the appellant has appeared against the court’s judgment dated 10th October 2006 vide his Notice of Appeal containing six grounds.
Following the order of this court, the appeal was heard on the appellant’s brief alone. The respondent though put on Notice was absent at the hearing of the appeal. The lone issue distilled in the appellant’s brief for the determination of the appeal reads:
“Whether the trial court was right to conclude by its finding that from the totality of the evidence by the prosecution it proved its case beyond reasonable doubt as required by law.”
Arguing the lone issue in the appellant’s brief which was adopted and relied upon at the hearing of the appeal, learned counsel submits that the prosecution did not prove the elements of the offence Appellant was convicted for beyond reasonable doubt as the law required. He contends that the lower court had ignored contradictions in the testimonies of the prosecution witnesses on material facts. The lapse, it is argued has occasioned miscarriage of justice, learned counsel supports his submissions with Majekodunmi v. The Queen 14 WACA 64 at 65, COP v. Adeyemi (1961) 1 All NLR (pt.2) 387 and Ejurin v. C.O.P. (1961) 1 All NLR (Pt.2) 387 and Ejurin v. C.O.P. (1961) All NLR (Pt.3) 478 at 479.
More particularly, learned appellant counsel has further argued, the prosecution witnesses neither agreed on the scene of crime nor the date the offence was committed. PW1, it is contended, never mentioned nor described the scene. PW2, PW3 and PW4, on the other hand, differ from each other as to the scene of the crime. Again, learned appellant counsel submits, whereas PWI and PW2 and PW4 told the court that the offence was committed on 2’d February 2002, PW3 in Exhibits 5 and 6 gave 1/6/2002 and 2/2/2002 respectively as the dates the crime was committed. These very witnesses also gave, as to the date they reported the case, 21212002 while Exhibit 5 the police report shows that the case was reported on 24/6/2002. The court’s resolution of these contradictions leaves much to be desired. Learned counsel submits that the prosecution witnesses who had contradicted themselves on these material points are unworthy of being believed. The court was in no position of picking and choosing whose evidence amongst these witnesses it should believe and has erred when it so did. Convictions based on such contradictory testimonies arc liable to be set aside on appeal. Relying on Onubogu v. the State (1974) 1 All NLR (Pt. 2) 5, Ankwa v. The State (1969) 1 NLR 133, The State v. Emine (1992) 7 NWLR (Pt. 256) 658, Anka v. Lokoja (2001) 4 NWLR (Pt. 702) 178, Yusuf v. Obasanjo (2005) 18 NWLR (Pt. 596) 96 and Okeke v. The State (1995) NWLR (Pt. 392) 678, learned Appellant submits, the lower court’s decision arrived at inspite of the contradictions in the prosecution’s witnesses on material points cannot be sustained. He urges that their lone issue be resolved against the respondent and the appeal allowed.
The submissions made by learned appellants counsel are glaringly portent and unassailable.
Firstly, it is certainly the cardinal principle of our criminal law that in all cases the burden of proving that any person is guilty of a criminal act, subject to certain exceptions, is on the prosecution. Again, the law requires that the guilt of an accused person must be proved beyond reasonable doubt and where there is any doubt as to the guilt of the accused benefit of the doubt must be given to the accused. See Onafowokan v. The State (1937) 3 NWLR (Pt. 61) 536 at 545, Onubogu v. State (supra) Okagbue v. Commissioner of Police (1965) NMLR 232 and R v. Lawrence (1932) 11 NLR 6.
Secondly, once there are inconsistencies in the evidence of the prosecution on material facts these must be resolved by the prosecution and it is not the duty of the judge to provide explanation for the inconsistencies. The judge is an independent and impartial arbiter whose duty is limited to acting on the evidence presented before him. See Mohammed v. State (1991) 5 NWLR (Pt. 192) 438, Ibrahim v. State (1991) 4 NWLR (Pt. 136) 399, State v. Emine (1992) 7 NWLR (Pt. 256) 658 v.667 and Onubogu v. State (supra).
Thirdly, learned appellant counsel is also right that in a criminal trial the prosecution is duty bound to disclose all important and material evidence and where it deliberately withholds such evidence, section 148 (d) of the evidence Act will be involved in favour of the accused person and against the prosecution. See Apayemi v. State (1985) 2 NWLR (Pt. 5) 101, and Abudu v. State (1985) 1 NWLR (Pt. 1) 55.
The question the appeal raises and requires to be answered is whether indeed there are contradictions in the testimonies of the prosecution witnesses and if there are whether the contradictions are material enough to warrant the conclusions other than the ones reached by the lower court.
An examination of the record of appeal reveals that the prosecution witnesses are neither agreed on the scene of the crime nor the date the crime was committed. The record clearly bears out learned appellant counsel that PW1 completely omitted to state where the crime occurred. At page 24 lines 2-3 of the Record of Appeal, PW2 testified that the robbery the appellant committed took place at Boro Creek. PW3, at page 29 lines 25-26 of the record told the court that the robbery took place at Ekulama Creek. PW4 said the crime took place between Ekulama and Darima. Yet all these witnesses were travelling together in one boat, the very boat they were robbed and dispossed of by the appellant and his gang. Inspite of their knowledge of the terrain, they were unable to state with precision the scene of crime.
Also, PW1, PW3 and Pw4 variously told the court that the robbery took place on 2/2/2002 and 1/6/2002. Exhibit I the police report dated 26/6/2002 has it that the robbery incident was reported on 24/6/2002. The lower court’s findings on these and other aspects of the prosecution’s case fall in breach of the legal principles on contradictory testimonies on material facts. The court’s resolution of the inconsistencies in the evidence of the prosecution witnesses as to where the robbery took place is at page 111 lines 8-20 of the record thus:
“As for the venue of the robbery, the prosecution witnesses are divided. PW1 said it was along the sea, PW2 said it was when they were returning from Boro Creek -from clearing of pipeline. PW3 said it was at Ekulama creek. The PW4 said it took place between Ekulam and Darima. Exhibit 1 which was tendered by pw5 stated that it happened at Darima………My finding is that the evidence of PWS 1, 2, 3 and 4 are in conflict on the scene. Additionally, the police Investigation Report – Exhibit I stated that it was at Darima. By the evidence of PW5, in which he tendered exhibit 1, the inconsistencies have been cleared or explained. I accept that the incident occurred at Darima Fishing Port. I believe the evidence of PWI, 2, 3 and 4 and exhibit 1.” (underlining -for emphasis)
PW3 while testifying as to the date the robbery occurred and in contrast to what is contained in the police report among which is exhibit I relied upon by the court in resolving the contradiction as to venue of the robbery, stated under cross examination at page 31 of the record thus:
“I do not know the day of the week this incident happened. But I remember that it was on 2/2/2002. I do not know the actual time because we were not with time piece. I did not give any time to the police. The police made a mistake and put time. All of us were in the boat before the incident took place. I did not tell the police in my statement that I had dropped the workers and was going back to pick them before the incident happened. I did not give any statement to the police that I dropped two (2) workers and was going back to pick them before the incident occurred. But if the police had recorded that I had dropped the workers before the incident, I did not make such statement. It may be police mistake. ”
PW3 is easily the prosecution’s star witness, the person who had direct physical encourters with and was injured by the appellant. When shown the statement he made to the police, he again owned up. The lower court noted at page 32 of the record thus:
“Accused person’s counsel confronts the witness with his statement to the police. Witness said he could not read……made statement to the police….the police recorded the statement. ”
The same PW5 who recorded PW3’s statement also recorded exhibit I the court relied upon to resolve the contradictions in the evidence of PW1, 2, 3 and 4 as to the venue of the crime. It is not idle to suggest that a reasonable tribunal would not have found the conflicting testimonies of these witnesses safe enough to convict the appellant on. In sum, the contradictions in the evidence of PW1, 2, 3, and 4 as to the scene of crime still abide and being on material point should have been resolved in appellant’s favour.
The charge against the appellant is that along with others he robbed PW3 and others their boat. The robbery took place at Darima Fishing Port. Even if it is accepted that appellant is involved in the robbery pertaining PW3 and others of the boat, is it the very robbery he stands charged for that is established to have taken place or a different one? Each robbery in a series of robberies is a robbery in itself and conviction for a particular robbery depends on proof of all its ingredients beyond all reasonable doubt. In the instant case where prosecution’s evidence linking the appellant with the robbery at Darima Fishing Port is manifestly inconsistent on that material point, it occasions miscarriage of justice to convict him. The evidence that has failed to particularly place the appellant at the scene of crime cannot secure his conviction. Certainly the Appellant could not have been at all the scenes of the other robberies the very time the robbery at Darima Fishing Port was taking place. See: Bosim v. State (1985)2 NWLR (PT 8) 465 at 467 Alabi v. State (1993) 7 NWLR (Pt. 307) 511 at 523, Ogoala v. State (1991) 2 NWLR (PT.175) 509 at 525-526 and Gabriel v. State (1989) 5 NWLR (PT. 122) 457.
At pages 110- 112 of the record, the lower court recounts its further dilemma as to the quality of evidence led by the prosecution firstly thus:
“one Dr. Ogbugba John Chimankpam (PW6) told the court that between 1/2/2002 to July, 2002, he was working qt Abonnema general Hospital. And that on 1/2/2002, the PW3 (Golden Orlu) was referred to him from another hospital. The question is how can robbery incident occur on the 2/2/2002 in which the PW3 was given q machete cut and the said PW3 be referred to pW6 from another hospital on 1/2/2002?…. I have my doubt. It means that PW3 was referred or taken to the hospital before the robbery incident. This is inconceivable. Another conclusion that can be drawn from the evidence of PW6 is that he may have treated the PW3 on another day or never for any injury at all. And I so hold. The PW6 is not reliable and credible witness… it is my finding that by this PW6’s evidence that he never treated the PW3 at all. The medical report Exhibit 2 and his testimony are rejected. ”
The court also held as follows:-
“PW2 told the court that he saw the accused person cut PW3 with a machete as well as saw him with a gun. Under cross examination on 5/4/2005, he somersaulted and said he saw accused with riffle but never saw him with q machete. Furthermore, when defence counsel demanded for his statement, it was not produced by the prosecution…..I reject the evidence of PW2 with regard to the weapon which the accused was in possession on the date of the incident. Having rejected the evidence of PW2, I am entitled to act on the rest of evidence of PWS 1, 3 and 4 that the accused person and his group were shooting guns indiscriminately and succeeded in scaring away the prosecution witnesses before taking away their boat.”
The essence of the date PW3 was admitted and treated for the injuries he received from the machete cut inflicted on him by the Appellant as well as the type of weapon used to cause the injury all relate to the fact of the commission of the robbery by the appellant and his gang. The lower court, from the foregoing, has not succeeded in concealing its doubt on the probative value of the evidence on the basis of which this inference is to be drawn. We must remind ourselves here that in criminal cases all doubts are necessarily resolved in favour of the accused, the appellant in the instant case.
It must also be answered whether PW3 is particularly worthy of any credit. The law has not changed that a witness who gives oral evidence that contradicts his previous statement in writing is to be treated as unreliable. See: Ogoala v. State (supra) and Atano v. AG Bendel State (19ss) 2 NWLR (Pt. 75) 201. In the instant case, from the totality of the evidence adduced by the prosecution, contradictions abound on the essential facts required to justify conviction of the appellant for the offence of robbery.
The point must indeed be stressed that conviction based on the testimonies of witnesses unworthy of credit does not endure. It is set aside on appeal. I agree with learned appellant counsel in this regard and find his reliance on the decisions in Ankwa v. The State (supra) The State v. Emine (supra) Okeke v. The State (supra) and Yusuf v. Obasanjo 18 NWLR (supra) in support his position apposite.
The lone issue in the appeal is resultantly resolved in appellant’s favour and the appeal allowed. The conviction and sentence of the appellant by the lower court is, accordingly, hereby set-aside.
EJEMBI EKO, J.C.A.: I read in draft, the judgment just delivered by my learned brother, M. D. MUHAMMAD (OFR), JCA. I am in complete agreement with him that a conviction in criminal trial based on testimonies of discredited prosecution witnesses is a travesty of justice.
In this case there were contradictions or inconsistencies in the evidence of prosecution witnesses on very material issues in the allegations against the appellant. It is for the witnesses to proffer satisfactory explanations for such inconsistencies or contradictions. The law is trite that where no explanation has been furnished by any witness for any inconsistency in the evidence of the witnesses called by the prosecution, it is not for the court to pick and choose which witness to believe and which not to believe among such witnesses. It can not, in the circumstance, accredit one witness and discredit the other. The trial court must evaluate the totality of the evidence called by the prosecution in order to determine whether the prosecution have proved their case beyond reasonable doubt. See BOY MUKA v. THE STATE (1976) 9 10 SC 305 at 325-326. In such a situation, where prosecution witnesses contradict one another on a material point, the prosecution can not be said to have discharged the onus of proving the guilt of the accused for the offence charged beyond reasonable doubt. See ONUBOGU v. THE STATE (1974) 9 SC 1. The consequence of this failure to discharge the basic burden of proof in a criminal proceeding is that the accused has earned the right to be discharged and acquitted on the allegation against him.
The lone issue in this appeal is hereby resolved in favour of the appellant. I allow the appeal. And like my learned brother, I hereby set aside the conviction and sentence imposed on the appellant by the trial court. I enter in his favour an order of discharge and acquittal.
T. O. AWOTOYE, J.C.A.: I have had the opportunity of reading the draft of the judgment just delivered by my learned brother M. D. MUHAMMAD (OFR) JCA.
I am in full agreement with the reasonings and conclusion therein.
I have nothing more to add.
I abide by the consequential orders (including costs) made in the lead judgment.
Appearances
T. I. Graham Douglass Esq. holding the brief O. T. K. D. Amachree Esq.For Appellant
AND
For Respondent
