Oloruntosin Bello V. The State (2006)

LawGlobal-Hub Lead Judgment Report

AUGIE, J.C.A.

This is an appeal against the conviction and sentence of death passed on the appellant by the High Court, Abeokuta, Ogun State, wherein he was arraigned on a three-count charge of conspiracy and armed robbery. He was alleged to have conspired with two others at large to rob Regina Idididi and Satus Igho of large sums of money at Itoku Market, Abeokuta while armed with cutlass. The case against the appellant to which he pleaded not guilty, is that he and two other men came into the shop where Regina (PW1) and Satus (PW2) sold rice and beans and demanded money from PW 1. She handed over the uncounted takings of the day and another N250,000.00 to the appellant who passed it on to his accomplices outside. As they left the shop, PW1 & PW2 raised an alarm and pursued the appellant who fell down after he was hit with a rechargeable lantern thrown by Blessing Akatu (PW3). He was then apprehended and taken back to the shop, where he was later arrested and taken to the police Station. The appellant gave evidence in his defence and did not call any other witness. He denied being at the scene of the robbery, and testified that he was on a motorbike when someone cut the strap of his bag and the knife also sliced him in the abdomen, that bleeding from the tummy, he fell to the ground where he was accosted by PW1 & PW2 who accused him of robbing them earlier, then he was later arrested by the police.

At the close of trial, learned counsel addressed the court and in his Judgment delivered on the 29th of March 2004, the learned trial Judge, Hon. Justice Ayobude Lokulo-Sodipe, found the appellant guilty as charged on all three counts, and sentenced him to death by hanging. Aggrieved by the decision of the lower Court, the appellant has appealed to this court with an amended notice of appeal containing two grounds of appeal. Briefs of arguments were duly filed and served and in the appellant’s brief prepared by Messrs. Dipo Okpeseyi & Co, two issues for determination were formulated as follows:-

1. Whether the appellant was sufficiently linked with the crime to justify the finding of the learned trial Judge that the prosecution has proved its case beyond reasonable doubt?
2. Whether the learned trial Judge was right in his consideration of the defence available to the appellant before conviction?

In the respondent’s brief prepared by A.O. Asenuga (Mrs.), the following two issues were formulated as arising for determination in this appeal:-

1. Whether from the totality of the evidence adduced at the trial, the prosecution had proved the charge as preferred against the appellant beyond reasonable doubt in accordance with section 138 of the Evidence Act (Cap 14) Laws of the Federation of Nigeria, 2004.
2. Whether the trial Judge duly and properly considered the defence raised by the appellant.

To me, the issues formulated by the appellant and the respondent raise the same questions – whether the prosecution proved its case beyond reasonable doubt? And whether the lower court considered the appellant’s defence? However, looking at the complaints in the appellant’s grounds of appeal, and the arguments canvassed in the briefs, I am of the view that the crux of the issue in this appeal can be narrowed down to whether the lower court did a proper evaluation of the evidence before it before convicting the appellant.

To this end, the appellant submitted that by section 138 of the Evidence Act, the burden of proof required in a criminal trial is that proof beyond reasonable doubt; that this burden, which does not shift is on the prosecution; and that section 36(5) of the 1999 Constitution presumes an accused person innocent until he is proved guilty, citing Idemudia v. The State (1999) 7 NWLR (Pt.610) 202 at 215 & Esangbedo v. State (1989) 4 NWLR (Pt.113) 57. The appellant further submitted that the lower court failed to follow the principle of law laid down in Bozin v. The State (1985) 2 NWLR (Pt.8) 465, that where the identity of the accused person is punctured with improbabilities and so many questions remain unanswered and unexplained, the trial court is to give the accused the benefit of doubt, and pointed out that the lower court based its finding that he was guilty on the evidence of PW1, PW2 and PW3, and went on to say at page 52 of the record:-

“… as his bare denial has not created any reasonable doubt in the case of the prosecution.”

It was further argued, citing Bozin v. State (supra); Idemudia v. State (supra) & Esangbedo v. State (supra), that this approach by the lower court is a clear misdirection that has occasioned a miscarriage of justice, since the appellant was called upon to prove his innocence contrary to section 36(5) of the 1999 Constitution and section 138 of the Evidence Act. Furthermore, that the lower court did not resolve material contradictions in the evidence before it, and where he did, he did so without proper evaluation or stating the reason for accepting one and not the other. The court was referred to the evidence adduced by the prosecution, itemized as follows:-

1. The appellant fled the scene of the crime and was pursued.
2. The appellant was armed with a machete.
3. The scene of the crime was a market wherein the victim had a shop.
4. That the day, 10/3/2000, was the day of the egungun (masquerade) festival in the town.
5. The appellant while fleeing was hit by a rechargeable lamp and fell down before he was arrested.
6. PW1, PW2 and PW3 inflicted injury on the tummy of the appellant.
7. Because of the state of the appellant, bleeding, battered, bruised and injured, the police rejected him until the victims took him to the hospital for treatment.
8. The appellant was arrested at about 8.30pm and was only reported to the police at about 10.00pm.
9. The machete was recovered.
10. All monies collected by the appellant were handed over to his alleged accomplices waiting outside the shop.

It was further argued that the above summary of the prosecution’s evidence raised other unanswered or unexplained questions which were also itemized:-

1. Since both parties agreed the shop was inside Itoku market, was the shop of the PW1, PW2 and PW3 the only one open?
2. Was the victim’s shop the only shop attacked in the whole market?
3. At about 8.00 – 8.30pm was the whole market properly lit and the adjoining street with streetlight?
4. The appellant was allegedly arrested at a refuse dump at Odo-Oyo outside the Itoku market. What is the distance between the Itoku market and the refuse-dump at Odo-Oyo? What is the location of the shop within Itoku market vis-a’-vis the exit point used by the appellant when fleeing the crime scene?
5. Is the court not to presume that the market had people buying and selling and the fact that a festival was being celebrated make the street at least to have more people than usual?
6. Is the court not entitled to see the re-chargeable lamp thrown at the appellant that caused him to fall down in the face of denial?
7. Who recovered the machete (exhibit B) allegedly held by the appellant? Where was it recovered? Was the injury on the appellant’s tummy consistent with that caused by a machete or penknife? Was there bloodstain on the machete? What about the doctor’s report for treating and stitching the appellant’s wound?
8. Was it for the purpose of torture that the PW5 refused to invite the police immediately and waited at least two hours?
9. Was there nobody in the market that could testify about the robbery, or the alarm raised or the chase and arrest of the appellant?
10. Is it that PW1, PW2, and PW3 who lived and or trade in the area where they were robbed, raised the alarm, chased the robbers, arrested one, tortured him and sent him to the police station knew nobody who assisted them? Or was it that the street was too busy with strangers?
11. In the whole market was there no other trader to give evidence as to whether there was power failure or not or to confirm the robbery?

It was further submitted that the lower court gave no reason for not accepting the appellant’s story or for believing the prosecution witnesses, and since it had not directed itself properly or evaluated the evidence before it, the judgment is perverse and should be set aside, citing Daniels v. State (1991) 8 NWLR (Pt.212) 715; Bozin v. State (supra); & Abudu v. State (1985) 1 NWLR (Pt.1) 55. Furthermore, that the witnesses could have conspired to steal the money, because it is the Prosecution’s evidence that:-

1. PW1, PW2 and PW3 were all present at the time of the robbery.
2. It was only PW1, PW2 and PW3 that raised alarm in a market.
3. They were the only ones who ran after and arrested the appellant in a crowded street.
4. PW1, PW2 and PW3 alone tortured the appellant and wounded him to a point that the police rejected the appellant when he was brought to the police station.
5. The monies stolen belong to someone else – the owner of the shop.
6. All the prosecution witnesses were dependants of the said owner.
7. All three prosecution witnesses had knowledge and knew where the N250,000.00 was kept in the shop by the owner.
8. Apart from them no other person could testify in a robbery case that took place in the market and on a festival day?
9. That they all had the opportunity to steal the money is a possibility more so when they alone saw, pursued and arrested the appellant.

It was further submitted that the lower court was searching for evidence from the appellant to show that he was not the one who committed the robbery, instead of searching for evidence led by the prosecution to dispel or disprove his defence of mistaken identity, and that it is trite law that no matter how worthless an accused person’s defence may be, the trial court still has a duty to consider the defences dispassionately before dismissing same, citing Ogunye v. State (1999) 5 NWLR (Pt.604) 548; Bozin v. State (supra); & Onuolza v. State (1988) 3 NWLR (Pt.83) 460. Furthermore, that if the lower court had directed itself properly and dispassionately evaluated the evidence before it, it would have found that the prosecution was unable to provide answers or explanation as to whether or not the appellant:-

(a) Is a barber;

(b) Came in from Akure that same day;

(c) That he had a wife, mother and father-in-law in Abeokuta

(d) That the father-in-law is at Odo-Oyo;

(e) That you pass through Itoku market on your way from – to Odo-Oyo;

(f) That indeed there was robbery in the market from an independent source;

(g) That the appellant fell off a motorbike and was injured and beaten by a crowd;

(h) The PW1, PW2 and PW3 indeed arrested the appellant by throwing a rechargeable lamp while fleeing;

(i) Whether or not he had a bag that was snatched with a knife cutting him;

(j) That the appellant’s tummy injury is consistent with machete cut and not pen knife?

(k) Was the doctor’s report consistent with machete cut or pen knife?

(l) Was there enough distance and opportunity from the scene of the crime to where the appellant was arrested to create opportunity to the “real robbers” to be lost in the crowd of the market and those involved in the masquerade festival?

(m) Was the masquerade festival inside the market?

(n) Was it 6pm or 8pm that the robbery took place?

(o) Are there no neighbors or other traders in the market that could confirm the incident at least the alarm raised; the pursuit from the market to the street to the refuse dump at Odo-Oyo?

(p) Is there nobody on the street who assisted PW1, PW2 and PW3 in the pursuit that they can identify in an area where they do business daily?

(q) Was the robber arrested with the machete? Or did he drop the machete at the scene of the crime?

(r) Would the presence of a fleeing armed robber with a cutlass in a market place and a busy street not be so spectacular sight for just anybody to remember?

(s) Why did police investigation not cover all these areas?

(t) Why did the prosecution not tender the statement of the complainant or PW1, PW2 and DW3?

The appellant argued that it is the duty of the prosecution to provide answers to these questions to dispel the defence of mistaken identity and prove its case beyond reasonable doubt, and submitted that when crucial evidence in a criminal trial are overlooked or misunderstood by a trial court, it is likely to lead to a miscarriage of justice, as on appeal, an appellate court may be unable to say what the decision would have been had the trial court given proper consideration to such evidence, which creates a reasonable doubt that the evidence was correct, citing Lado v. State (1999) 9 NWLR (Pt.619) 369.

It is the respondent’s contention however that the lengthy list of questions itemized in the appellant’s brief implies that the prosecution is required to prove the guilt of the appellant beyond all shadow of doubt, which is not the position of the law; that the onus of proving a criminal case beyond reasonable doubt does not require the prosecution to prove the guilt of the accused beyond all shadow of doubt; that it is enough if the Judge is satisfied that the evidence before him has proved the ingredients of the offence and is sufficient to establish the guilt of the appellant, citing Otti v. The State (1991) 8 NWLR (Pt.207) page 103 at 118; and that there was overwhelming evidence from the prosecution to sufficiently establish the guilt of appellant, which was clearly stated in the judgment of the lower court as follows:-

“I find sufficient justification to ascribe credibility to the evidence adduced by the prosecution through the said PWs’ 1 – 3 fixing the accused person with two others now at large at the scene of the robbery and the accused person as being the actual person who dispossessed PW1 of the taking for 10/3/2000 and also the person to whom PW2 handed over a sum of N250,000.00 on the said 10/3/2000. I accordingly hold that the prosecution has established beyond reasonable doubt that the accused person who relieved PW1 and PW2 of the day’s taking for 10/3/2000 and N250,000.00 respectively was one of those who took part in the armed robbery that occurred in the shop at Itoku market on 10/3/2000 as his bare denial has not created any reasonable doubt in the case of the prosecution”.

It was further submitted that the lower court properly evaluated the evidence adduced by the prosecution vis-a’-vis the appellant’s defence of mistaken identity and alibi and arrived at the right conclusion; that it is trite law that when an offence has been committed and the offender is being hotly pursued and in full view of the victim, the issue of his identification can be conclusively settled by the victim who engaged in the pursuit, citing Uwumba v. State (1993) 5 NWLR (Pt.296) 660 at 671; that the appellant was caught in hot pursuit after the robbery, and PW1 – 3 had opportunity to see the appellant very well as there was no power failure; and that it is trite law that there is nothing extra-ordinary or esoteric in a plea of alibi, and even if it is the duty of the prosecution to check on a statement of alibi by the accused person and disprove the alibi or attempt to do so, there is no inflexible and/or invariable way of doing this, citing Patrick Njovens & Ors. V. The State (1973) 5 SC 17 at 65, where the Supreme Court considered its judgment in Hemyo Atam & Ors. V. State SC 632/66 decided on the 11th January 1967 –

“… but in a case such as this where the appellants were identified by three witnesses there was a straight issue of credibility and we are not able to say that the Judge’s findings of -fact were unreasonable or cannot be supported having regard to the evidence. If the alibi had been true it would have been open to the appellants to call witnesses in support of them and neither of them did so.”

This court was therefore urged to hold that the conclusion of the lower court was not perverse nor has it occasioned any miscarriage of justice, since the appellant did not call any evidence in proof of his defence of alibi, and was properly identified by PWs’ 1-3. It was pointed out that findings of facts are squarely within the exclusive competence of the trial courts who saw, heard and believed the witnesses, who testified and ascribed probative value to such evidence, so this court would not interfere with the lower court’s findings of fact except the decision is perverse and lead to miscarriage of Justice, and citing Agbanyi v. State (1995) 1 NWLR (Pt.369) 22; Igago v. State (1999) 6 NWLR (Pt.608) 568; and Bashaya v. State (1998) 5 NWLR (Pt.550) 351, the point was again made that an appellate court must show the utmost restrain, resist and reject any temptation to interfere with well considered findings made by a trial Judge who had the singular opportunity of not only hearing the evidence but also watching the demeanour of the witnesses.

Yes, findings on primary facts are matters within the province of the court of trial and there is a rebuttable presumption that a Judge’s findings and conclusions on the facts are correct, however, where a trial Judge fails to properly examine and evaluate the evidence before the court, the duty of an appellate court to interfere with any improper findings or correct any erroneous conclusions would, come into play – See Sanni v. State (1993) 4 NWLR (Pt.285) 99; and Nwankwoala v. State (2005) 12 NWLR (Pt.940) 637. As I pointed out earlier, the end result of this appeal will depend on whether the learned trial Judge properly evaluated the evidence received by the court.

Evaluation of evidence entails the assessment of evidence so as to give value or quality to it. In other words, the mere recital of the evidence called is not tantamount to assessment and evaluation of such evidence, there must be on record how the court arrived at its conclusion of preferring one piece of evidence to the other – See Alake v. State (1992) 9 NWLR (Pt.265) 260 Sc. I must point out though that the order in which a trial Judge considers the evidence is a matter of style, and totally within his discretion. He may begin with the case of the defence or the prosecution. He may compare the evidence of one witness as against the other. What is important is that the learned trial Judge evaluates all the evidence before the court in respect of both the prosecution and the defence before coming to his decision – See Igago v. State (supra); and Solola v. State (2005) 11 NWLR (Pt.937) 460 Sc. In this case, after setting out the various testimony of the prosecution witnesses and the appellant, the trial Judge referred to evidence from PW1, PW2 and PW3, which he accepted were consistent, then stated as follows:-

“The accused conveyed the impression that it was while he laid on the ground or road at Odo-Oyo after having fallen off a motorbike that he was apprehended by some people, one of whom alleged that he was one of the ‘Ibo people’ that robbed them and later dragged him to Itoku Market. Now, I do not understand the denial by the accused person of his involvement or participation in what occurred in the shop at Itoku Market on 10/3/2000 or his denial of being at the scene as controverting the case of the prosecution – This is because it is my view that it is someone that was at the scene and who testifies to the effect that all that PW1, PW2, & PW3 have testified to, never happened or who was at a vantage position and testifies to the contrary of what the – witnesses testified to, that can be said to controvert the evidence of the said witnesses as it relates to the events …” (Italics mine)

The learned trial Judge also stated as follows at page 48 of the record:-

“As earlier stated, the accused person who in his evidence never admitted being at the scene of the incident of 10/3/2000 cannot be said to controvert all that PW1 – 3 testified to concerning how three men invaded the shop at Itoku Market in which they were, and forcibly relieved PW1 of that day’s taking and an additional sum of N250, 000.00 kept in the said shop before that date. Suffice it to say also that the evidence of these witnesses in this regard was not challenge under cross-examination. In the circumstances, there is no justifiable reason for the court not to believe PWs’ 1-3 who no doubt gave consistent eye-witness accounts to what occurred in the shop at Itoku market in which they were on 10/3/2000 and for evidence of any doubt (sic) I hereby state that I believe and accept same.” (Italics mine)

He further stated as follows at page 50 of the record:-

“The evidence of PW1 and PW2 to the effect that at least two of the men (i.e. the ones who remained outside) were armed with gun and machete respectively, I must say was not controverted or successfully challenged under cross-examination. Indeed the evidence of these two witnesses was reinforced with cross-examination. I accordingly find the same credible and believe it.” (Italics mine)

And he concluded as follows at page 52 of the record:-

“Now, I am in no doubt that the evidence of PWs’ 1-3 fixing the accused person at the scene of the crime and as being the actual person who dispossessed PW1 of the day’s taking for 10/3/2000 as well as being the very person to whom PW2 handed over the sum of N250,000.00 was not challenged with any measure of success by the accused person. Given the evidence in this regard from PWs’ 1-3 and the total absence of evidence adduced by the accused person to discredit the said evidence, I find sufficient justification ascribe credibility to the evidence adduced by the prosecution through the said PWs’ 1-3 … I accordingly hold that the prosecution has established beyond reasonable doubt that the accused person who relieved PW1 and PW2 of the day’s taking for 10/3/2000 and N250,000.00 respectively was one of those who took part in the armed robbery that occurred in the shop at Itoku market on 10/3/2000 as his bare denial has not created any reasonable doubt in the case of the prosecution.”

Sadly, and I must say that I am horrified at the thought of it, but there is no gainsaying the fact that the appellant has every reason to cry out against the conviction and sentence to death imposed on him by the learned trial Judge. To stand with, the learned trial Judge crossed the distinct line between criminal and civil proceedings and lost sight of the trite law that an accused person is presumed innocent until he is proved guilty. There is therefore no question of an accused person proving his innocence before a law court.

In fact, in a criminal trial, an accused person does not have to utter a word. The duty is on the prosecution to prove the charge against the accused person beyond reasonable doubt – See Williams v. State (1992) 8 NWLR (Pt.261) 515 SC; Igabele v. State (2006) 6 NWLR (Pt.975) 100 SC; and Kim v. State (1992) 4 NWLR (Pt.233) 17 where Nnaemeka-Agu, JSC observed:-

“… In civil cases, the only way to decide which of the evidence called by the plaintiff and the defendant is more probable is by putting each of them on either side of an imaginary balance and weighing them together … This derives from the fact not only that in civil cases the onus of proof keeps on shifting, but also that in civil cases it is discharged on a balance of probabilities. In criminal cases, the position is different. Because, except in limited exceptions … the onus is all through on the prosecution – a very high onus at that – the prosecution may still fail if the accused person does not utter a word in his defence if the prosecution fails to prove its case beyond reasonable doubt”.

Certain words are crucial and pertain to or are limited to certain proceedings. In this case, the learned trial Judge believed the evidence adduced by the prosecution witnesses because the appellant did not “controvert” or “successfully challenge” their evidence, but such words have no place in a judgment on a criminal case; they only enjoy relevance in a judgment on a civil case, where the burden of proof would shift to the defendant to rebut the plaintiff’s case, and if the defendant cannot lead any credible evidence to tilt the scale to his side, the judgment will be for the plaintiff – See Dabo v. Abdullahi (2005) 7 NWLR (Pt.923) 181 Sc. That is clearly not the situation in a criminal case, where the issue of preponderance of evidence does not really arise. The question in a criminal case is whether there is evidence of such a quality on every material ingredient or issue in the case that it ought to be believed. If there is and it is believed by the trial Judge, that is the end of the matter, provided it is manifest on the record that the trial Judge has given due consideration to the evidence by and on behalf of the defence – See Ibrahim v. State (1991) 4 NWLR (Pt.186) 399 SC & State v. Onveukwu (2004) 14 NWLR (Pt.893) 340 where Pats-Acholonu, JSC said:-

“Care must be taken that the court should not be bamboozled in taking a course of action that produces miscarriage of justice. In a criminal case, every item of evidence must be scrupulously examined, analyzed and weighed to assess the substantiality of the testimony and statements proffered and made.” (Italics mine).

In this case, the learned trial Judge did not even bother to consider the evidence adduced by the appellant. He merely narrated the evidence adduced by the prosecution and believed it only because the appellant did not controvert or challenge it under cross-examination, which is an indirect way of saying that the appellant did not prove his innocence. If there is any argument that was not his underhand conclusion, his statement that the appellant’s “bare denial has not created any reasonable doubt in the case of the prosecution” clinches it. It is not for the appellant to adduce evidence to create a reasonable doubt in the case of the prosecution; it is for the prosecution to prove its case against the appellant beyond reasonable doubt. That is what the law says and that is what it has always been; it is not a new legal concept that has just emerged and the learned trial Judge cannot claim ignorance of this very elementary and time-tested principle of law. Obviously, the learned trial Judge had made up his mind that the appellant was guilty, and was not prepared to envisage any other outcome, so shifted the burden that is statutorily on the prosecution to prove the offence charged beyond reasonable doubt, and transferred it to the appellant to produce evidence to prove that he did not commit the offence he was alleged to have committed. That in itself has occasioned a grievous miscarriage of justice, not to mention the failure to consider the evidence adduced by the appellant in his defence, which is a travesty of justice that has also occasioned a miscarriage of justice. In my view, this is more than sufficient reason for this court to interfere with the judgment of the trial court. The appellant has definitely discharged the onus placed on him to justify such interference – See Sanni v. State (supra). The appeal will have to be allowed and I so hold. The appeal thus succeeds and is therefore allowed. The appellant’s conviction and sentence to death are hereby set aside.

The appellant is accordingly discharged and acquitted.

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Other Citations: (2006)LCN/2133(CA)