SOTUBO v. STATE
(2021)LCN/15579(CA)
In The Court of Appeal
(IBADAN JUDICIAL DIVISION)
On Monday, September 13, 2021
CA/IB/359C/2020
Before Our Lordships:
Onyekachi Aja Otisi Justice of the Court of Appeal
Ugochukwu Anthony Ogakwu Justice of the Court of Appeal
Folasade Ayodeji Ojo Justice of the Court of Appeal
Between
ADEKOYA SOTUBO APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO:
REPLY BRIEF NOT FOR THE PURPOSE OF RESTATING THE ARGUMENTS ALREADY CANVASSED IN AN APPELLANT’S BRIEF OF AGREEMENT
By the provision of Order 19 Rule 5 (1) of the Court of Appeal Rules 2016, the purpose of a Reply Brief is to enable the Appellant deal with new points which arise from the Respondent’s Brief. It is not meant to give the Appellant a second chance to improve on his arguments in his Brief of Argument. Where there are no new or fresh points raised by the Respondent, a reply brief is unnecessary and where filed should be discountenanced. See DOGO VS. STATE (2013) 10 NWLR (PT. 861) 160; ONWUDIWE VS. FEDERAL REPUBLIC OF NIGERIA (2006) 10 NWLR (PT. 988) 382; GODGIFT VS. STATE (2016) 13 NWLR (PT. 1530) 444 and OLAFISOYE VS. FEDERAL REPUBLIC OF NIGERIA (2004) 4 NWLR (PT. 864) 580. PER FOLASADE AYODEJI OJO, J.C.A.
BURDEN OF PROOF AND THE STANDARD OF PROOF IN CRIMINAL PROCEEDINGS
It is therefore a firmly established principle of law that the prosecution has a duty to prove its case beyond reasonable doubt. The burden does not shift. The prosecution has the burden to rebut the presumption of innocence constitutionally guaranteed on the accused person.
Proof beyond reasonable doubt does not however mean proof beyond any shadow of doubt. It means just what it says. It imposes a duty on the prosecution to prove the ingredients of the offence charged against the accused person by credible evidence and to the satisfaction of the trial Judge. Once all the ingredients of the offence charged are proved, the charge is proved beyond reasonable doubt. See STATE VS. JOHN (2013) 12 NWLR (PT. 1368) 337; BAKARE VS. STATE (1987) 1 NWLR (PT. 52) 579; AJAYI VS. STATE (2013) 9 NWLR (PT. 1360) 589 and JUA VS. STATE (2010) 4 NWLR (PT. 1184) 217.
Now, proof beyond reasonable doubt stems out of the compelling presumption of innocence in favour of an accused person inherent in our adversary system of criminal justice. Section 36 (5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) invests on every accused person a presumption of innocence. An accused person is not obliged to prove his innocence. He is assumed innocent until the contrary in proved. See ALABI VS. STATE (1993) 7 NWLR (PT. 307) 511; STATE VS. ZAKARI (2020) 8 NWLR (PT. 1727) 484; COMMISSIONER OF POLICE VS. AMUTA (2017) 4 NWLR (PT. 1586) 379; ADEKOYA VS. STATE (2012) 9 NWLR (PT. 1306) 539 and NWATURUOCHA VS. STATE (2011) 6 NWLR (PT. 1248) 470. See also Section 135 (1) and (2) of the Evidence Act 2011 which provide as follows:
“Section 135
(1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt.
(2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to Section 139 of this Act, on the person who asserts it, whether the commission of such act is or is not directly in issue on the action.” PER FOLASADE AYODEJI OJO, J.C.A.
MEANING OF PROOF BEYOND REASONABLE DOUBT
Our adversarial criminal justice system is not inquisitorial. It is accusatorial. This is in tune with Section 36 (5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), which provides that every person charged with a criminal offence shall be presumed innocent until he is proved guilty. The necessary corollary of this presumption of innocence is that the Prosecution has the onus of proving the commission of the crime charged beyond reasonable doubt as stipulated in Section 135 of the Evidence Act, 2011.
Though the law is that proof beyond reasonable doubt does not mean proof beyond all shadow of doubt; it however connotes proof of the crime charged with the certainly required in a criminal trial. This certainty is accomplished by proving the essential elements of the offence charged and establishing that it is the accused person that committed the crime. Put differently, proof beyond reasonable doubt does not mean or import beyond any degree of certainty. It should be a proof that excludes all reasonable inference or assumption except that which it seeks to support. It must have clarity of proof that is readily consistent with the guilt of the accused person. See STATE vs. ONYEUKWU (2004) 14 NWLR (PT 893) 340 at 379- 380. PER UGOCHUKWU ANTHONY OGAKWU, J.C.A.
INGREDIENTS OF THE OFFENCE OF RECEIVING STOLEN PROPERTY BY MEANS OF ARMED ROBBERY
To ground a conviction for the offence of receiving stolen property obtained by means of armed robbery, the prosecution is required to prove the following ingredients:
1. That the property was in fact stolen or the proceeds of a robbery.
2. That the accused received or was found in possession of the property.
3. That the accused received or was in possession of the property with the guilty knowledge at the time of receiving it, that the property was stolen or the proceeds of a robbery.
See OLUWASEYI VS. STATE (2019) 3 NWLR (PT. 1658) 108; STATE VS. NNOLIM (1994) 5 NWLR (PT. 345) 394; NJOVENS & 3 ORS. VS. STATE (1973) 5 SC (Reprint) 12 and YONGO VS. COMMISSIONER OF POLICE (1992) NWLR (PT. 237) 36.
For a Court to convict for the above offence, all the ingredients must be proved beyond reasonable doubt. Where any of the ingredients is not proved, the offence would not have been proved beyond reasonable doubt, and the accused would be entitled to an acquittal. PER FOLASADE AYODEJI OJO, J.C.A
FOLASADE AYODEJI OJO, J.C.A. (Delivering the Leading Judgment): The instant appeal is against the judgment of the Ogun State High Court sitting in the Sagamu Judicial Division BETWEEN THE STATE AND (1) USADAMEN GODGRANT (2) FESTUS EDEGWA (3) OWOLABI IDOWU (4) IDOWU MATHEW (5) TAOFIK ISHOLA (6) ADEKOYA SOTUBO delivered on 24th of August 2020.
The Appellant was arraigned alongside five others as the 6th Defendant before the lower Court. The 1st to 5th Defendants were charged for offences ranging from conspiracy to commit armed robbery to armed robbery. The sole count against the Appellant was Count IV of the charge.
Count IV of the Amended Charge/Information reads as follows:
“COUNT IV
STATEMENT OF OFFENCE
RECEIVING STOLEN PROPERTY OBTAINED BY MEANS OF ARMED ROBBERY contrary to Section 5 of the Robbery and Fire Arms (Special Provisions) Act Law of the Federal Republic of Nigeria 2004.
PARTICULARS OF OFFENCE
ADEKOYA SOTUBO on or about the 26th day of March, 2017 received a Lexus Jeep with Registration Number KRD 14 EF, property of Salawu Fatai from Festus Edegwa knowing same to have been obtained by means of armed robbery. ”The Appellant pleaded not guilty to the charge. The case went on to trial. At the end of the trial, the learned trial Judge found the Appellant guilty of the offence alleged in count IV of the charge, convicted him and sentenced him to ten (10) years imprisonment with hard labour.
Dissatisfied with the judgment, the Appellant filed a Notice of Appeal containing five Grounds on the 5th of October 2020. The record of appeal was transmitted to this Court on the 27th of October 2020.
In line with the Rules of this Court, parties filed their respective briefs of argument. The Appellant’s brief of argument settled by Temiloju Adamolekun of counsel filed on 29th January, 2021 was deemed as properly filed on the 21st of June 2021. The Respondent’s brief of argument settled by Bukola Durojaiye of counsel filed on 26th February 2021 was deemed as properly filed on 21st of June 2021. The Appellant’s reply brief of argument filed on 7th of June 2021 was deemed as properly filed on the 21st of June 2021.
The five Grounds of Appeal without their particulars are as follows:
Ground One
The learned trial Judge erred in law in convicting the Appellant of the offence of Receiving Stolen Property obtained by means of Armed Robbery on circumstantial evidence that was not positive, cogent and has no bearing with the Appellant thereby coming to a perverse decision, occasioning miscarriage of justice to the Appellant.
Ground Two
The learned trial Judge erred in law when he held at page 47 of the judgment thus:
“I believe most assuredly that he made Exhibit K and that Exhibit K is good evidence against him. I believe the prosecution’s case as regards Count 6, I believe PW1 that 6th Defendant volunteered Exhibit K.”
Ground Three
The learned trial Judge misdirected himself when he held at page 47 of the judgment that:
“Though the 6th Defendant denied making Exhibit K, yet the facts contained in Exhibit K earlier referred to are not facts which can be within general knowledge to PW1 who is a police officer. Facts I reiterate like where the vehicle was parked after PW3 was robbed of it and the number plate removal by the 6th Defendant. Only the one who committed the above acts in respect of the vehicle can be ceased with such facts.”
Ground Four
The learned trial Judge erred in law when he failed to resolve the identity of the exact statement made by the Appellant upon his arrest, despite the clear inconsistency of the testimony of PW1 as regards the statement.
Ground Five
The decision of the trial Court is unreasonable and cannot be supported having regard to the evidence.
See pages 134 – 138 of the Record.
Premised on the five grounds of appeal, learned counsel to the Appellant distilled the following sole issue for the determination of this appeal:
“Whether on the strength of the evidence before the trial Court, the prosecution was able to prove the charge of receiving stolen property obtained by means of armed robbery against the Appellant beyond reasonable doubt.”
Learned counsel to the Respondent also formulated a sole issue for determination as follows:
“Whether the prosecution has proved the offence of receiving stolen property obtained by means of armed robbery against the Appellant beyond reasonable doubt.”
At the hearing of this appeal before us on the 21st of June 2021, learned counsel to the Appellant adopted the Appellant’s brief of argument and the Appellant’s reply brief of argument as his oral arguments, urged us to allow the appeal and set aside the judgment of the trial Court. Learned counsel for the Respondent adopted the Respondent’s brief as his oral argument, urged us to dismiss the appeal and affirm the judgment of the trial Court.
The issues formulated by counsel on both sides are the same. I shall therefore adopt the sole issue formulated on behalf of the Appellant as the issue for determination in this appeal.
ISSUE FOR DETERMINATION
“Whether on the strength of the evidence before the trial Court, the prosecution was able to prove the charge of receiving stolen property obtained by means of armed robbery against the Appellant beyond reasonable doubt”.
In arguing this issue, learned counsel to the Appellant laid emphasis on the presumption of innocence which enures in favour of an accused person and that the burden of proof is always on the prosecution. He further argued that the standard of proof required of the prosecution is proof beyond reasonable doubt. He called in aid of his submissions the cases of WOOLMINGTON VS. DIRECTOR OF PUBLIC PROSECUTION (1935) AC 462; OFORLETE VS. THE STATE (2000) FWLR (PT. 12) 2081; OSENI VS. THE STATE (2012) 5 NWLR (PT. 1293) 351 and ADEKOYA VS. THE STATE (2012) 9 NWLR (PT. 1306) 539. He further referred us to the provisions of Section 5 of the Robbery and Fire Arms (Special Provision) Act and itemized the ingredients to be proved to ground a conviction for the offence of receiving stolen property obtained by means of armed robbery.
He submitted the trial Court erred when it placed reliance on the purported confessional statement (Exhibit K) credited to the Appellant. He argued that the trial Court failed to test the veracity of the statement even though the Appellant retracted it at his trial. He submitted there was no evidence from the Respondent to establish its truth or corroborate it. He argued there was no evidence on why the Appellant was in company of Chidi Martins at the time of his arrest and also no evidence that it was Chidi Martins that received the stolen property. This omission he said cast serious doubt on the case of the prosecution and which doubt should have been resolved in favour of the Appellant. He submitted further that the Respondent failed to prove that Exhibit K was the statement signed by the Appellant.
He finally urged us to hold that the prosecution did not discharge the burden of proof placed on it by law and urged us to resolve the sole issue in favour of the Appellant.
Arguing per contra, learned counsel to the Respondent urged us to hold that the prosecution proved its case against the Appellant beyond reasonable doubt and cited the cases of EZE VS. THE STATE (2019) LPELR–47984 (CA); ANKPEGHER VS. STATE (2018) LPELR–43906 (SC) and STATE VS. ONYEUKWU (2004) 14 NWLR (PT. 813) 340 in support. He argued that there is sufficient evidence before the trial Court to establish all the ingredients of the offence with which the Appellant was charged. He submitted the Appellant admitted in his statement that he received the stolen vehicle and the fact that he retracted the statement would not make it inadmissible. He relied on the cases of AFOLABI VS THE STATE (2016) 10 SCM 32, ALARAPE VS. STATE (2001) 5 NWLR (PT. 705) 79; UBIERHO VS. STATE (2005) 5 NWLR (PT. 919) 644 and USMAN VS. STATE (2015) LPELR – 40855 (CA) to support his argument.
He finally urged us to dismiss the appeal in its entirety and uphold the judgment of the trial Court.
The Appellant filed a reply brief of argument. By the provision of Order 19 Rule 5 (1) of the Court of Appeal Rules 2016, the purpose of a Reply Brief is to enable the Appellant deal with new points which arise from the Respondent’s Brief. It is not meant to give the Appellant a second chance to improve on his arguments in his Brief of Argument. Where there are no new or fresh points raised by the Respondent, a reply brief is unnecessary and where filed should be discountenanced. See DOGO VS. STATE (2013) 10 NWLR (PT. 861) 160; ONWUDIWE VS. FEDERAL REPUBLIC OF NIGERIA (2006) 10 NWLR (PT. 988) 382; GODGIFT VS. STATE (2016) 13 NWLR (PT. 1530) 444 and OLAFISOYE VS. FEDERAL REPUBLIC OF NIGERIA (2004) 4 NWLR (PT. 864) 580.
A careful examination of the Appellant’s reply brief reveal that it is a rehash of the arguments already canvased in his main Brief of Argument. This is not in consonance with the purpose of a reply brief. It should therefore not be allowed and it is for this reason that I will not countenance the arguments therein in the resolution of this Appeal.
Let me recall that the Appellant was charged, tried and convicted for the offence of receiving stolen property obtained by means of armed robbery contrary to Section 5 of the Robbery and Firearms (Special Provisions) Act. CAP. R11 Laws of the Federation of Nigeria 2004 which provide thus:
“Any person who receives anything which has been obtained by means of any act constituting an offence under this Act shall be guilty of an offence under this Act and shall be liable upon conviction to be sentenced to imprisonment for life”.
The allegation against the Appellant is that he received a Lexus Jeep with Registration Number KRD 14 EF the property of one Salawu Fatai from Festus Edegwa knowing that the said car was obtained by means of armed robbery. Festus Edegwa was the 2nd Defendant at the trial. The complaint of the Appellant in the main is that the Respondent failed to prove the charge against him beyond reasonable doubt.
Now, proof beyond reasonable doubt stems out of the compelling presumption of innocence in favour of an accused person inherent in our adversary system of criminal justice. Section 36 (5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) invests on every accused person a presumption of innocence. An accused person is not obliged to prove his innocence. He is assumed innocent until the contrary in proved. See ALABI VS. STATE (1993) 7 NWLR (PT. 307) 511; STATE VS. ZAKARI (2020) 8 NWLR (PT. 1727) 484; COMMISSIONER OF POLICE VS. AMUTA (2017) 4 NWLR (PT. 1586) 379; ADEKOYA VS. STATE (2012) 9 NWLR (PT. 1306) 539 and NWATURUOCHA VS. STATE (2011) 6 NWLR (PT. 1248) 470. See also Section 135 (1) and (2) of the Evidence Act 2011 which provide as follows:
“Section 135
(1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt.
(2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to Section 139 of this Act, on the person who asserts it, whether the commission of such act is or is not directly in issue on the action.”
It is therefore a firmly established principle of law that the prosecution has a duty to prove its case beyond reasonable doubt. The burden does not shift. The prosecution has the burden to rebut the presumption of innocence constitutionally guaranteed on the accused person.
Proof beyond reasonable doubt does not however mean proof beyond any shadow of doubt. It means just what it says. It imposes a duty on the prosecution to prove the ingredients of the offence charged against the accused person by credible evidence and to the satisfaction of the trial Judge. Once all the ingredients of the offence charged are proved, the charge is proved beyond reasonable doubt. See STATE VS. JOHN (2013) 12 NWLR (PT. 1368) 337; BAKARE VS. STATE (1987) 1 NWLR (PT. 52) 579; AJAYI VS. STATE (2013) 9 NWLR (PT. 1360) 589 and JUA VS. STATE (2010) 4 NWLR (PT. 1184) 217.
To ground a conviction for the offence of receiving stolen property obtained by means of armed robbery, the prosecution is required to prove the following ingredients:
1. That the property was in fact stolen or the proceeds of a robbery.
2. That the accused received or was found in possession of the property.
3. That the accused received or was in possession of the property with the guilty knowledge at the time of receiving it, that the property was stolen or the proceeds of a robbery.
See OLUWASEYI VS. STATE (2019) 3 NWLR (PT. 1658) 108; STATE VS. NNOLIM (1994) 5 NWLR (PT. 345) 394; NJOVENS & 3 ORS. VS. STATE (1973) 5 SC (Reprint) 12 and YONGO VS. COMMISSIONER OF POLICE (1992) NWLR (PT. 237) 36.
For a Court to convict for the above offence, all the ingredients must be proved beyond reasonable doubt. Where any of the ingredients is not proved, the offence would not have been proved beyond reasonable doubt, and the accused would be entitled to an acquittal.
The prosecution may discharge the onus of proof placed on it through any or a combination of the following methods:
(1) Direct evidence.
(2) Confessional Statement/Statement made by the accused and
(3) Circumstantial Evidence.
See UGBOJI VS. STATE (2018) 10 NWLR (PT. 1627) 346; ILODIGWE VS. STATE (2012) 18 NWLR (PT. 1331) 1; AKPAN VS. STATE (2016) 9 NWLR (PT. 1516) 110 and BILLE VS. STATE (2016) 15 NWLR (PT. 1536) 363. The Respondent who was the prosecutor at the trial relied on the testimony of its witnesses particularly PW1 and PW3 as well as the extra judicial statement made by the Appellant. PW3 is the owner of the stolen Lexus Jeep with Registration number KRD 14 EF. His testimony is that on the 26th of March 2017 some persons robbed him of his car and that in the course of police investigation, the Appellant was one of those arrested for the robbery. The Appellant was said to have made a statement to the police which statement was admitted in evidence as Exhibit K and K1. Premised on the evidence of PW1 and that of the Appellant the learned trial Judge held Exhibit K was made by the Appellant and constitute good evidence against him.
A confession is an admission made at any time by a person accused of a crime stating or suggesting he committed the crime. Where an accused person confesses to a crime he may be convicted on his confession alone even in the absence of an eye witness. The confession must however be positive, direct and properly proved. It must be a free and voluntary confession of guilt, direct and positive.
To ground conviction, without any corroborative evidence, the Court must be satisfied of its truth. See Section 28 of the Evidence Act 2011 and the cases of ADEBAYO VS. STATE (2014) 12 NWLR (PT. 1422) 613; NKIE VS. FEDERAL REPUBLIC OF NIGERIA (2014) 13 NWLR (PT. 1424) 305; JOHN VS. STATE (2016) 11 NWLR (PT. 1523) 191 and AKIBU VS. STATE (2019) 11 NWLR (PT. 1684) 433.
The Appellant in his extra judicial statement (Exhibit K) at his trial stated amongst others as follows:
“… I know Chidi Martins about three years ago and he is my friend. I know Chidi through Osasi and “Osasi” is also an armed robber. I also know that Chidi Martins is an armed robber because he told me that the Lexus Jeep 330 I kept for him is stolen vehicle. Chidi actually brought the Lexus Jeep to me that day that I should keep it for him pending the time he will perfect the paper. And I parked the Lexus somewhere in my area at Sagamu. I was even the one that removed the plate number of the Lexus and it was with my friend one Gbenga alias ….. Gentle at Sagamu in my area. This was the first time I will involved (sic) myself in this kind of shit.”
It is evident from the above that the Appellant admitted receiving the Lexus Jeep from Chidi Martins who he knew was an armed robber. He also knew the Lexus Jeep was stolen. He removed the plate number of the vehicle. The only inference that can be drawn from all of these is that the Appellant aided his armed robber friend to prevent easy identification of the stolen vehicle while it was in his custody. Exhibit K is confessional in nature and I so hold. It contains a positive, direct and unequivocal admission by the Appellant that he committed the offence for which he has been tried, convicted and sentenced. The law is settled that where a Court comes to the conclusion that a statement made by an accused person satisfied all the legal requirements of a confessional statement it may convict solely on it. See OLADAPO VS. STATE (2020) 7 NWLR (PT. 1723) 238; TOPE VS. STATE (2019) 15 NWLR (PT. 1695) 289; STATE VS. AHMED (2020) 14 NWLR (PT. 1748) 1 and FATAI VS. STATE (2013) 10 NWLR (PT. 1361) 1.
I have no hesitation in coming to the conclusion that the extra judicial statement of the Appellant admitted at his trial as Exhibit K contains positive, directive and unequivocal admission that he committed the offence for which he has been tried, convicted and sentenced. Learned counsel to the Appellant has made a heavy weather of the fact that the Appellant retracted the statement at the trial. The law is well settled that once a statement was made in compliance with the law and rules governing the method of taking it and tendered and admitted as Exhibit, it is good evidence. Where such a statement is retracted at the trial, the retraction will not vitiate its admission as a voluntary statement. The Court is still at liberty to act upon it notwithstanding its retraction. See WOWEM VS. STATE (2021) 9 NWLR (PT. 1781) 295; AKINRINLOLA VS. STATE (2016) 16 NWLR (PT. 1537) 73; OLUWASEYI VS. STATE (2019) 3 NWLR (PT. 1658) 108; EDHIGERE VS. STATE (1996) 8 NWLR (PT. 464) 1; IKPO VS. STATE (2016) 10 NWLR (PT. 1521) 501. In FEDERAL REPUBLIC OF NIGERIA VS. IWEKA (2013) 3 NWLR (PT. 1341) 285 AT 336 PARAS A-C, the Supreme Court held, Per Ngwuta JSC as follows:
“… a Court can convict on a confessional statement alone without corroboration once it is satisfied with the truth of the confession. See EDAMINE VS. THE STATE (1996) 3 NWLR (PT. 438) 530 AT 533. The U-turn made by the Respondent is of no avail. See EGBOGHONOME VS. STATE (1993) 7 NWLR (PT. 306) 383. Once the trial Court is satisfied, as the trial Court was in this case, that the statement is free, voluntarily made, unambiguous, true, direct and positive with reference to the offence charged, it can convict on it.”
It cannot therefore be overemphasized that once the Court is satisfied of its truth, a proved confessional statement alone is sufficient to ground and support conviction without corroboration.
In the instant case, the trial Court was satisfied of the truth of the statement, tested its veracity before relying on it to ground the conviction of the Appellant. It subjected the statement to the following tests:
1) Whether the confession is the truth.
2) Whether it was corroborated.
3) Whether the confession was free.
4) Whether the Appellant had the opportunity to commit the crime.
5) Whether the confession was possible and
6) Whether the confession is consistent with other proved or ascertained facts.
See SAMINU VS. STATE (2019) 11 NWLR (PT. 1683) 254; IFEANYI VS. FEDERAL REPUBLIC OF NIGERIA (2018) 12 NWLR (PT. 1632) 164; ADEBANJO VS. STATE (2019) 13 NWLR (PT. 1688) 121 and AGBOOLA VS. STATE (2013) 11 NWLR (PT. 1366) 619.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
The learned trial Judge in his judgment evaluated the facts contained in Exhibit K particularly those relating to where the stolen vehicle was parked and the fact that the Appellant removed the plate number and came to the conclusion that such facts can only be within the knowledge of the Appellant. He found them not to be those that can be within the knowledge of PW1, a police officer. He further found the confession to be corroborated. He relied on the evidence of PW1, one Corporal Jamiu Salawudeen who was part of the team of police men that arrested the Appellant. PW1’s evidence is that the police had information that one Chidi Martins was a recipient of proceeds of robbery operations and had received the stolen Lexus Jeep. Based on this information, PW1 said he put a call through to Chidi Martins and informed him he had a Highlander vehicle for sale. They agreed to meet up. On the day Chidi Martins turned up to purchase the purported stolen highlander he came in company of the Appellant. The Appellant was arrested at this point.
The learned trial Judge drew an inference from the above evidence to arrive at the conclusion that the confession in Exhibit K is possible. He considered the circumstances of the arrest of the Appellant in arriving at his conclusion.
Under our criminal jurisprudence, circumstantial evidence is defined as evidence of surrounding circumstances which by their nature is capable of establishing a proposition such as the criminality of an accused person with exactitude. It consists of various pieces of evidence which in themselves alone cannot ground conviction but when put together can constitute a solid case for the prosecution. See STATE VS. SUNDAY (2019) 9 NWLR (PT. 1676) 115; OMOREGIE VS. THE STATE (2018) 2 NWLR (PT. 1604) 505; ILIYASU VS. STATE (2015) 11 NWLR (PT. 1469) 26 and OKETAOLEGUN VS. THE STATE (2015) 13 NWLR (PT. 1477) 538.
PW1’s further testimony is that the confession of the Appellant led to the arrest of Edegwa Francis (the 2nd Defendant at the trial) and who confessed he gave the details of PW3 (the victim of the offence) to the other robbers. This is evidence that the Appellant had a strong link with the robbers who stole PW3’s Lexus Jeep on 26th March 2017 and makes the Appellant’s confession in Exhibit K possible. The Appellant also had the opportunity to be a receiver of the stolen vehicle. It is therefore my firm view that the learned trial Judge tested the veracity of the Appellant’s statement before relying on it to convict him.
Now, it is further the law, that the onus is on an accused person to cast reasonable doubt on the case of the prosecution by preponderance of evidence. See JUA VS. STATE (2010) 4 NWLR (PT. 1184) 217 and ALLI VS. STATE (2015) 10 NWLR (PT. 1466) 1. In IGABELE VS. STATE (2006) 6 NWLR (PT. 975) 100 at 131 pages D – E, the Supreme Court Per Onnoghen JSC held as follows:
“I agree that on a criminal trial, the burden is always on the prosecution to prove the guilt of the accused person beyond all reasonable doubt. Generally speaking therefore, there is no duty on the accused to prove his innocence. However, where circumstances arise as in this case some explanation may be required from the accused person as the facts against him are strong. Where he fails to offer such explanations as happened in this case, his failure will support an inference of guilt by him”.
Furthermore, in IKENNE VS. STATE (2018) 18 NWLR (PT. 1650) 157 at 169 PARAGRAPH E, the Supreme Court held Per Kekere – Ekun JSC as follows:
“Once the prosecution has adduced credible and convincing evidence of the commission of the offence, the onus shifts to the defence to cast reasonable doubt on the prosecution’s case. The standard of proof in the circumstance is upon a preponderance of evidence.”
The Appellant testified in his own defence and called no witness. I have gone through his evidence and I am of the view that he was unable to rebut the presumption of guilt against him. He failed to cast any doubt on the case of the prosecution. On the evidence of the Appellant the learned trial Judge at pages 131 to 132 of the Record found as follows:
“The defence of the 6th Defendant in Court that the only reason he was arrested is because he got involved in telling the police they were in a power show for splashing mud on him and some persons, I find that to be a tall tail. He must have believed the Court can be deceived by such fairy tale. I observed the demeanour of the 6th Defendant while giving evidence. He was so shifty in the witness box while answering questions under cross examination, he did not answer question promptly. I do not believe him to be a witness of truth. I believe most assuredly that he made Exhibit K and that Exhibit K is good evidence against him. I believe the prosecution’s case as regards Count 6, I believe PW1 that 6th Defendant volunteered Exhibit K. I believe the prosecution’s case as regards Count 6 and hold that Count 6 is proved against the 6th Defendant.”
The trial Judge who had the opportunity to watch the Appellant testify gave his assessment of his demeanour in the witness box and came to the conclusion that he is not a witness of truth. I have no reason to interfere with the finding. The law is settled that where the credibility of a witness becomes an issue an Appellate Court is handicapped. See STATE VS. ORAY (2020) 7 NWLR (PT. 1722) 130; POPOOLA VS. THE STATE (2018) 10 NWLR (PT. 1628) 485; OCHIBA VS. STATE (2011) 17 NWLR (PT. 1277) 663 and AMADI VS. ATTORNEY GENERAL, IMO STATE (2017) 11 NWLR (Pt. 1575) 92.
From the totality of the evidence at the trial I find the decision of the learned trial judge to be based on the evidence on record. It is not perverse and I so hold. The learned trial Judge did a proper evaluation of the evidence before him and I find no reason to disturb the findings made by him. The prosecution proved its case against the Appellant beyond reasonable doubt. The lone issue distilled for determination in this Appeal is therefore resolved in favour of the Respondent and against the Appellant.
In conclusion, I find this Appeal devoid of merit and it is accordingly dismissed. The decision of the Ogun State High Court in Charge Nos: HCS/478/2018 delivered on 24th August, 2020 is hereby affirmed.
ONYEKACHI AJA OTISI, J.C.A.: I read before now, a draft copy of the lead Judgment just delivered by my Lord, Folasade Ayodeji Ojo, JCA, in which this appeal has been dismissed. I agree that the appeal is completely unmeritorious. I will only make few comments in support.
The assessment of the credibility of a witness remains the privilege of the trial Judge. An appellate Court would be reluctant to interfere with such assessment by the trial Judge who watched the demeanour of the witness in the witness box and assessed the quality of their evidence before accepting or rejecting it; Adele v The State (1995) LPELR-111(SC); FRN v Iweka (2011) LPELR-9350(SC). On the demeanour of the Appellant, who was the 6th defendant at the lower Court, the learned trial Judge said:
“I observed the demeanour of the 6th defendant while giving evidence. He was so shifty in the witness box while answering questions under cross examination, he did not answer questions promptly. I do not believe him to be a witness of truth, I believe most assuredly that he made Exhibit K and that Exhibit K is good evidence against him.”
The Appellant’s statement, which was confessional, was admitted in evidence by the lower Court as Exhibit K and K1.
The law is clear and settled on the point that for a confessional statement to attract and support a conviction. It must be proved to be free, voluntary, unambiguous, true, direct and positive to ground a conviction. A free and voluntary confession by a person if direct and positive, duly made and satisfactorily proved, was described in Mustapha Mohammed v. State (2007) 11 NWLR (PT 1045) 303, (2007) LPELR-1894(SC), (2007) 4 S.C. (PT. 1) 1, per Tobi, JSC, at page 14 of the E-Report, as occupying: “…the highest place of authenticity when it comes to proving beyond reasonable doubt.”
See also Stephen v The State (2013) LPELR-20178(SC).
The lower Court was mindful of the need to have outside the Appellant’s confession to the police, some evidence no matter how slight, of the circumstances which made it probable that the confession was true, as advocated inR v Sykes (1913) 8 Cr. App R 233 and approved in Kanu v R (1962/55) 14 WACA 30. See also Emeka v. State (2019) LPELR- 48810(SC); Adisa v The State (2018) LPELR-46340(SC); Akpan v. State (2008) 4-5 S. C (PT. 11) 1. These circumstances were given due consideration by the learned trial Judge. I therefore see no reason to impeach the conclusions reached against the Appellant.
For these reasons and for the more comprehensive reasons already given by my learned brother, I also dismiss the appeal and affirm the decision of the lower Court.
UGOCHUKWU ANTHONY OGAKWU, J.C.A.: I was privileged to read in draft, the leading judgment of my learned brother, Folasade Ayodeji Ojo, JCA, which has just been delivered. I am allegiant to the reasoning and conclusion reached in the leading judgment on the sole issue for determination.
Our adversarial criminal justice system is not inquisitorial. It is accusatorial. This is in tune with Section 36 (5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended), which provides that every person charged with a criminal offence shall be presumed innocent until he is proved guilty. The necessary corollary of this presumption of innocence is that the Prosecution has the onus of proving the commission of the crime charged beyond reasonable doubt as stipulated in Section 135 of the Evidence Act, 2011.
Though the law is that proof beyond reasonable doubt does not mean proof beyond all shadow of doubt; it however connotes proof of the crime charged with the certainly required in a criminal trial. This certainty is accomplished by proving the essential elements of the offence charged and establishing that it is the accused person that committed the crime. Put differently, proof beyond reasonable doubt does not mean or import beyond any degree of certainty. It should be a proof that excludes all reasonable inference or assumption except that which it seeks to support. It must have clarity of proof that is readily consistent with the guilt of the accused person. See STATE vs. ONYEUKWU (2004) 14 NWLR (PT 893) 340 at 379- 380.
As translucently portrayed in the leading judgment, the circumstantial evidence adduced by the Prosecution and the confessional statement of the Appellant, Exhibit K, established the essential ingredients of the offence of receiving stolen property for which the Appellant was convicted. Where the evidence adduced by the Prosecution conclusively points to the accused person as the perpetrator of the offence charged and the evidence has been accepted by the Court, as in this case, the duty on the Prosecution is discharged. The accused person then has the duty to put up any defence to rebut the presumption of guilt or to cast a reasonable doubt on the case of the Prosecution by a preponderance of probabilities. This is so because the law does not impose on the Prosecution the burden or function of both the prosecution and the defence: see OGBODU vs. THE STATE (1987) 2 NWLR (PT 54) 20, AKINMOJU vs. THE STATE (2000) 6 NWLR (PT 662) 608 at 629 and KALU vs. THE STATE (1993) 6 NWLR (PT 300) 385 at 397.
The lower Court, which had the unparalleled advantage of seeing the witnesses and observing their demeanour, evaluated the evidence and the accounts of the incident as presented by the Prosecution and the Appellant. It was not in any doubt that the Appellant was no truthful witness; indeed at pages 131-92 of the Records, it described the Appellant’s story as a tall tale and a fairy tale which did not deceive the Court. Such evidence which is not believed can therefore not rebut the presumption of guilt or cast a reasonable doubt on the case of the Prosecution by a preponderance of probabilities. Since there exists no reasonable doubt on the evidence, the decision of the lower Court cannot be faulted. See BAKARE vs. THE STATE (1987) 1 NWLR (PT 52) 579, IGABELE vs. THE STATE (2006) 6 NWLR (PT 975) 100 at 131 and AYINDE vs. THE STATE (2018) LPELR (44761) 1 at 37-39.
It is predicated on the foregoing that I avow my concurrence with the indubitable conclusion in the leading judgment that this appeal is devoid of merit. Therefore, I equally join in dismissing the appeal. The judgment of the High Court of Ogun State in CHARGE NO. HCS/478/2018 delivered on the 24th day of August, 2020 is hereby affirmed. Appeal dismissed.
Appearances:
TEMILOLU ADAMOLEKUN, WITH HIM, MOHAMMED USMAN AND ZAINAB OLOWOYO For Appellant(s)
BUKOLA DUROJAIYE For Respondent(s)
