The second issue is whether the court below was right when it held that the taking of the plea of the appellant in chambers by the learned trial Judge is not unconstitutional. It is clear from the record that the plea of the appellant who was the 5th accused person was taken on the 19th of January 1998 in Chambers. He pleaded not guilty to the charge. He was represented by his counsel J. S. Okutepa, Esq. These facts are recorded at pages 37 and 38 of the record. There is therefore no dispute that the plea of the appellant was taken in chambers. The question is the legal effect of this plea on the entire trial. This issue was raised at the court below which after detailed consideration of the submissions of counsel for the parties and section 150(1) of the Evidence Act opined at page 263 of the record: "Much as I fully subscribe to the view that pleas should be taken in open court, and that it is good practice and desirable my understanding of the authorities is no that except the court sits in the court hall to take plea as is now being urged upon us by the learned appellant's counsel such plea automatically are invalid null and void and of no effect whatsoever." The court then went on to examine three previous decisions of this court and section 187 of the Criminal Procedure Code and concluded thus: "From the foregoing analysis I think this court in the absence of contrary evidence, is entitled to assume that the correct procedure was adopted by the trial court on the issue of the appellants' plea having been taken in chambers. The learned counsel has not been able to establish any irregularities on the part of the trial court on the arraignment of the appellants. I therefore find myself unable to accept the view of the learned counsel for the appellants that the proceedings, conviction and sentence of the appellants was null and void and of no effect whatsoever." EDIBO V...
It is indeed the law that where an accused person is charged under several counts of charge, separate verdicts are required to be passed on each head/count of charge. Section 296(2) of the Criminal procedure Code provides as follows 269 (1) Every judgment shall contain the point or points for determination, the decision thereon and the reasons for the decision and shall be dated and signed or sealed by the Court in open Court at the time of pronouncing it. (2) If the judgment is a judgment of conviction it shall specify the offence of which and the section of the Penal Code or other law under which the accused is convicted and the punishment to which he is sentenced. The law has been reiterated and reinforced by several judicial pronouncements from the apex Court as well as from this Court. Nonetheless, since the ultimate objective of every Court is to do substantive justice and as much as possible, not to sacrifice justice on the altar of technicalities, the Supreme Court in giving recognition to this policy and philosophy of justice, has held that it is not in all cases that such an error will be fatal to the case. For instance, in the case of Solola V State (2005) LPELR-3101(SC) 20, paras D-G, the Supreme Court per Edozie, JSC held as follows Where several persons are tried together, separate verdicts must be returned in respect of each of the accused persons and where there are several counts of information, separate verdicts must be delivered in respect of the several counts. However, the error in failing to return a separate verdict on each count against each accused will not result in quashing of the verdict, where as in the instant case, no miscarriage of justice has occurred. See City Engineering (Nig.) Ltd V NPA (1999) 11 NWLR (Pt. 625) 76 at 89; Eyisi V State (2000) 15 NWLR (Pt. 691) 555 to 574. (Emphasis supplied) Again in Onyejekwe V State (1992) LPELR-2731(SC) 12-13;(1992) NWLR (PT. 230) 444 at 453 SC, the Supreme Court per Omo, JSC, held Once it is...
The Courts have consistency held that the record of proceedings in a criminal trial is not admissible in civil matters. In Abubakar v. Joseph (2008) 13 NWLR (Pt. 1104) 307 at 353-354 the Apex Court held that:
Record of proceedings in a criminal proceeding is inadmissible as evidence in a civil proceeding. In the instant case, the admission of the record of criminal case in which the 1st respondent was convicted was wrong notwithstanding that there was no objection to is admission in evidence.
Also, in the case of ALI V. UGWU (2012) ALL FWLR (Pt 619) 1078 @ 1111, the Court held that:
Record of proceedings in a criminal proceeding is inadmissible as evidence in a civil proceeding."
The demand for the statement wholly dissipated the effect of the caution administered by the Police. See The State v Mati Audu (1971) NNLR 91 at 92 and Nakumde v Jos NA (1966) NNLR 52 at 58-59. Even the words of caution have been held to be an inducement to speak to the Police for the Accused cannot be expected to keep mute after the caution. See Queen v Viaphony (1961) NNLR 47 at 47- 48. In Onobu v IGP (1957) NNLR 25, it was held that when a person is under arrest in a criminal charge, it is not the duty of the police to obtain evidence in the form of a statement from him.
The duty of the police, after the Accused has been charged and cautioned, is to take or record the statement of the Accused, if he makes any.
The police have no authority to obtain a statement from him, having told him he is not obliged to say anything. The judges rules, though rules of practice, are designed to leave it open to the arrested person to say nothing and to prevent police officers from trying to get the arrested person to say anything.
It is trite law, that there are three methods of proof of criminal cases which are in either of the under mentioned methods namely:-
(a) Through eye witness account of the commission of the offence by the accused person or Persons; or
(b) Through a direct and voluntary confessional statement; or
(c) Through circumstantial evidence pointing positively to the guilty of the accused person and to no other person.
See Adekoya v State (2012)9 NWLR (pt.1305)539; Akpa v State (2009)39 WRN 27; Haruna v AG Federation (2012)9 NWLR ( pt. 1306)419.
Now the next question to consider is whether the prosecution had adduced credible and cogent evidence in proof of the offence of armed robbery against the accused/appellant independent of or apart from the confessional statement wrongly admitted? This question is apt because even if there is no confessional statement relied on in proof of its case against an appellant, the prosecution can still rely on other evidence, be they eye witness account or circumstantial evidence. See Onyenye v State (2012) LPELR 7866 (SC) ; Emeka v State (supra).
Terlumen Giki v. State LGC(19/1/2018)E
Failure of a trial Court to conduct trial within trial where issue of voluntariness of a confessional statement is raised, renders such statement inadmissible. See Obidiozo vs State (1987) 4 NWLR (pt 67) 48; See also Emeka vs The State (2001) 6 SCNJ 267, (2001) 14 NWLR (pt 734) 666 where Ogwuegbu JSC stated as below
"The law is that where an accused person contends that a confessional statement sought to be tendered in evidence was not made by him voluntarily, it is the duty of the Judge to test the confession by conducting a trial within trial in order to determine whether in fact, the statement was voluntarily made.
Therefore, by refusing to conduct trial within trial in the circumstance of this instant case, the trial Court was wrong and it was also wrong for it to admit the statement in question in evidence.
Terlumen Giki v. State LGC(19/1/2018)D – E
The position of the law is that when an accused person retracts a confessional statement on the ground that it was not voluntarily made by him, the trial Court has a duty to try the issue of the voluntariness or otherwise of such statement through the conduct of a trial within trial. See Gbadamosi v State (1992) 1 NWLR (Pt 266); R vs Onabayo (1936) 3 WACA 42; R v Igwe (1960) SCNLR 158; Olayinka v The State (2007) 4 SCNJ 66-67.
Terlumen Giki v. State LGC(19/1/2018)D
In a nut-shell the offence of armed robbery simply means stealing plus or accompanied with violence or threat of injury or death. See Aruna v The State (1990)6 NWLR (pt 155) 725; Tanko v The State (2009) 2 SCNJ 19; Ani v The State (2009) 6 SCNJ 105; Bozin v State (1985) 2 NWLR (pt 8) 465; Okosi V A.G Bendel State(1989)1 NWLR (pt 100) 442; Nwachukwu v State (1985)1 NWLR (pt 11) 218.
Terlumen Giki v. State LGC(19/1/2018)C
For the prosecution to obtain conviction on the offence of armed robbery, it has a duty to establish the following elements beyond reasonable doubt, to wit
(i) that the accused person in the process had committed theft
(ii) that the accused person and/or person(s) he was in company of had caused hurt, wrongful restraint or caused some fear or appreciation of death or hurt or injury on their victim or victims.
(iii) that the acts complained of were done in the process of committing the theft or in order to commit the theft and/or carry away the property obtained by the theft
(iv) that the accused person did the acts complained of voluntarily and(v) that the accused person or any one in his company was/were armed with dangerous weapons at the time of committing the offence in question during the robbery.
See Abdullahi v The State (2008) 5 SCNJ 2101277.
Terlumen Giki v. State LGC(19/1/2018)C
For the prosecution to establish an offence against an accused person, it must present or adduce credible evidence in any of the following modes, namely,
(a) Through testimony or testimonies of eye witness or witnesses, and/or
(b) Through confessional statement, voluntarily made by the accused person; and/or
(c) Through circumstantial evidence which clearly point to the sole fact that the accused person and no other person committed the offence charged.
Terlumen Giki v. State LGC(19/1/2018)C
Also, the prosecution, in order to obtain conviction must prove its case beyond reasonable doubt. Where there exists any doubt in the prosecution's case, such doubt must be resolved in favour of the accused person. See Igabele v State (2006) 6 NWLR (Pt 975) 100; Agbo v State (2006) 6 NWLR (pt 977) 545; Miller v Ministry of Pension (1947) 2 AER 372
Terlumen Giki v. State LGC(19/1/2018)C
Also, the prosecution, in order to obtain conviction must prove its case beyond reasonable doubt. Where there exists any doubt in the prosecution's case, such doubt must be resolved in favour of the accused person. See Igabele v State (2006) 6 NWLR (Pt 975) 100; Agbo v State (2006) 6 NWLR (pt 977) 545; Miller v Ministry of Pension (1947) 2 AER 372
Terlumen Giki v. State LGC(19/1/2018)C
However, I must state here, that even though the burden of proof of the guilt of an accused person lies on the prosecution, where the prosecution had adduced adequate evidence which shows that the accused person had actually committed the offence charged, the burden of proving that he is innocent shifts to the accused in view of the provisions of Section 138 (3) of the Evidence Act 2011 as amended. See Nasiru vs State (1999)2 NWLR (pt 589) 87 at 89.
Terlumen Giki v. State LGC(19/1/2018)C
The burden of proving the guilt of an accused person squarely rests on the prosecution and such burden does not shift. See Section 138 (1) of the Evidence Act 2011 as amended.
Terlumen Giki v. State LGC(19/1/2018)C
The time honoured principle of law is that an accused person is presumed innocent until he is proved guilty. It is not for the accused to prove his innocence before the law Court.
Terlumen Giki v. State LGC(19/1/2018)C
The doctrine, simply means that the law presumes that the person last seen with the deceased, bears full responsibility for his death, if it turns out that the person last seen with him is dead. See Godwin Nwakerendu & 3 Others (1973) 3 ECSLR (pt. II) 87; Nwaeze v. The State (1996) SCNJ 47 at 61/62.
Anyasador v. State LGC(9/2/2018)G
Evidence of an IPO is never to be tagged as hearsay. This Court in a plethora of its decided authorities had adjudged such evidence as direct and positive evidence and therefore not hearsay evidence. See Arogundade vs. The State (2009) All FWLR (pt. 469) (SC) 423.
Anyasador v. State LGC(9/2/2018)G
Circumstantial evidence is as good and sometimes even better than any other sort of evidence and what is meant by it is that there is a number of circumstances which are accepted so as to make a complete and unbroken chain of evidence. If that is established to the satisfaction of the trial Court, it may properly act upon such circumstantial evidence. See Olutola v. The State (2009) 2 SCNJ 135. I must however add here, that the nature of circumstantial evidence that a trial Court will consider and act on in order to convict an accused person must be cogent, complete, unequivocal and compelling leading to the irresistible conclusion that it was the accused under trial and no other person, was responsible in committing the offence charged. See cases of Peter Eze v. The State (1976) 1 SC 125; Uwe Ideghi Esai and Others vs. The State (1976) 11 SC 39. Similarly, the circumstantial evidence to be used in convicting an accused must also be incompatible with the innocence of the accused.
Anyasador v. State LGC(9/2/2018)F
The law is trite and well settled too, that where there is dispute on whether or not an accused person made the statement sought to be tendered made same voluntarily, it is the duty of the trial Court to try the voluntariness of such statement by conducting, a "trial within trial" otherwise known as 'mini trial'. See Olayinka v State (2007)9 NWLR [pt.1040)5; Obasi v State[1965) NWLR 119.
Perhaps it is apt to kick-start the resolution of this issue by reiterating that there are three modes of proof of criminal cases. These methods or modes of such proof are:
(a) By testimonies of eye witness or witnesses who watched, heard or witnessed the commission of the crime by the accused person(s).
(b) Through confessional statement voluntarily made by the accused.
(c) Through circumstantial evidence which clearly points to the sole fact that the accused and no other person committed the offence charged.
In order to prove the offence of murder against an accused person, the prosecution has the onus to establish beyond reasonable doubt, the following ingredients of the offence, namely: –
(i) That the death of a human being was caused
(ii) That it was caused by the act of the accused; and
(iii) That the act or acts was/were done with the intention that death was to be caused; or
(iv) The accused knew that death would be the probable consequence of his act or acts.
See Sunday Omini vs. The State (1999) 12 NWLR (pt.630) 68 or (1999) 9 SC 1 or (1999) LPELR 2638 SC.
Anyasador v. State LGC(9/2/2018)E
This Court in a plethora of its decided authorities had approved or endorsed three methods or modes of proof in criminal cases which include the followings: –
(a) Evidence of eye witness or witnesses account who had witnessed the commission of the offence(s) by the accused person charged.
(b) Through confessional statement of the accused made voluntarily by the accused wherein he categorically owned up the commission of the offence by him.
(c) Through circumstantial evidence.
See Emeka v. State (2001) 6 SC 227 or (2001) 14 NWLR (pt.734) 666; Ohunyon v. State (1996) 3 NWLR (pt.436) 264; Bright Chibuike & Anor vs. The State (2010) LPELR – 3911; Igri v. The State (2010) 7 WRN 47; Ogba v. State (1992) 2 MLR (pt.222) 146.
Anyasador v. State LGC(9/2/2018)E
The prosecution also has the onus to prove the guilt of the accused person beyond reasonable doubt through credible and reliable evidence in proof of the case against the accused person. The burden therefore, does not shift. This is borne out from the fact that our Constitutions had entrenched adequate provisions to the effect that an accused person is always presumed innocent until he was otherwise proved to have committed that offence. Therefore, once the prosecution succeeded in proving the elements or ingredients of the offence or offences, the burden thereupon, shifts to the accused person to prove that he was not responsible in committing the offence(s) charged. If he succeeds in doing so, the trial Court then must acquit the accused person promptly.
Anyasador v. State LGC(9/2/2018)E
The prosecution also has the onus to prove the guilt of the accused person beyond reasonable doubt through credible and reliable evidence in proof of the case against the accused person. The burden therefore, does not shift. This is borne out from the fact that our Constitutions had entrenched adequate provisions to the effect that an accused person is always presumed innocent until he was otherwise proved to have committed that offence.
Anyasador v. State LGC(9/2/2018)E
The prosecution also has the onus to prove the guilt of the accused person beyond reasonable doubt through credible and reliable evidence in proof of the case against the accused person. The burden therefore, does not shift. This is borne out from the fact that our Constitutions had entrenched adequate provisions to the effect that an accused person is always presumed innocent until he was otherwise proved to have committed that offence. Therefore, once the prosecution succeeded in proving the elements or ingredients of the offence or offences, the burden thereupon, shifts to the accused person to prove that he was not responsible in committing the offence(s) charged. If he succeeds in doing so, the trial Court then must acquit the accused person promptly.
Anyasador v. State LGC(9/2/2018)E
It is trite law that the burden of proof in criminal cases is always on the prosecution which must prove all the elements of the offence charged in order to secure conviction of the accused person. See Section 138(1) of the Evidence Act Cap 112 Laws of the Federation of Nigeria 2004 (as amended). See also the cases of Duru v. The State (1993)3 NWLR (pt.281) 290; Amadi vs Federal Republic of Nigeria (2008) 12 SC (pt. III) 55; Abdullahi Vs State (2008) 5-6 SC (pt. 1) 1.
Anyasador v. State LGC(9/2/2018)E
It is trite law that the burden of proof in criminal cases is always on the prosecution which must prove all the elements of the offence charged in order to secure conviction of the accused person. See Section 138(1) of the Evidence Act Cap 112 Laws of the Federation of Nigeria 2004 (as amended). See also the cases of Duru v. The State (1993)3 NWLR (pt.281) 290; Amadi vs Federal Republic of Nigeria (2008) 12 SC (pt. III) 55; Abdullahi Vs State (2008) 5-6 SC (pt. 1) 1.
Anyasador v. State LGC(9/2/2018)E
It is to be reiterated that in criminal matters such as the one we are faced with the standard of proof is beyond reasonable doubt. This is a Principle that is fundamental and sacrosanct and in establishing that required standard of proof, all the essential elements or ingredients must be proved on that standard. This is because the ingredients are cumulative and none should be found lacking before the Proof beyond reasonable doubt is said to have been met. Therefore once all those vital ingredients are established altogether beyond reasonable doubt the Court is enabled to convict the accused.
Adekoya v. The State. LGC(13/1/2017) C
What a Court usually considers where a no-case submission is made, is whether the Prosecution has made out a prima facie case requiring, at least, some explanation from an Accused – see Tongo V. C.O.P 12 NWLR (Pt. 1419) 525 SC. A prima facie case in a criminal trial is one that has proceeded up to where it will support findings if evidence to the contrary is disregarded, and prima facie evidence means evidence, which on the face of it, is sufficient to sustain the charge against the Accused – see Abacha V. State (2002) 11 NWLR (Pt. 779) 437 SC, and Ajidagba V. Inspector General of Police (1958) SCNLR 60,
see Abacha V. State (2002) 11 NWLR (Pt. 779) 437 SC, and Ajidagba V. Inspector General of Police (1958) SCNLR 60, where this Court quoted with approval the definition in the Indian case of Star Sigh v. Jitendrana-thsen (1931) I.L.R. 59, as follows-
What is meant by prima facie (case)? It only means that there is ground for proceeding – – But a prima facie case is not the same as proof, which comes later, when the Court has to find whether the Accused is guilty or not guilty, and the evidence discloses a prima facie case when it is such that if uncontradicted and if believed it will be sufficient to prove the case against the Accused.
The interpretation of those Sections was made by this Court in Ogunye v. State (1999) 5 NWLR (Pt.604) 548 at 565 paras A – E, Iguh JSC captured the requirements of a valid arraignment in Court as follows:-
"For there to be a valid arraignment of an accused person. These steps are (a) the accused person must be placed before the Court unfettered unless the Court shall see cause otherwise to order; (b) the charge or information must be read over and explained to the accused to the satisfaction of the Court by the registrar or other officer of the Court; and (c) the accused must be called upon to plead thereto unless there exists any valid reason to do otherwise such as objection to want of service where the accused is entitled by law to service of a copy of the information and the Court is satisfied that he has in fact not been duly served therewith.
The above stated requirements of the law are mandatory and not directory and must therefore be strictly complied with in all criminal trials. Since these requirements have been specifically provided to guarantee the fair trial of an accused person and to safeguard his interest at such a trial, failure to satisfy any of them will render the whole trial incurably defective and null and void." (Emphasis mine).
Court procedures are done in a methodical manner and not in a lackadaisical way or as the whim takes a party thus producing a confused untidy atmosphere which would not augur well for our adjudicatory system. See Durwode v. State(2000) 15 NWLR (Pt.6) 467 at 488; Nnakwe v. State (2014) 10 NCC 189; Ogunye v. State (1999) 5 NWLR (Pt.604) 518.
There are several decisions of this Court warning against the discharge of accused persons after a submission of no case to answer particularly when it is clearly from the evidence adduced that the facts disclose some explanation which the accused has to make in view of what the prosecution has so far established from the evidence.In THE QUEEN V. OGUCHA (1959) 1 FSC 64 Abort F. J. stated that:-
"It is the judge's duty however, when a submission of no case to answer is made to discharge an accused where the evidence adduced by the prosecution does not disclose the necessary minimum evidence establishing the facts of the crime charged. In doing so, the judge does not write judgment.
It is not the judge's job, at that stage, to weigh and evaluate evidence or decide who is telling the truth or who is lying and is not to conclude that the prosecution is unreliable."
In ABOGEDE V. THE STATE (1996) NWLR (Pt.118) page 270 at 280 the Supreme Court held that:-
"When a Court is giving consideration to a submission of no case, it is not necessary at that stage of the trial for the learned trial judge to determine if the evidence is sufficient to justify conviction. The trial Court only has to be satisfied that there is a prima facie case requiring at least some explanation from the accused person."
See alsoR. V. OGUCHA (1959) 4 FSC pg 64.
In SHATTA V. FRN (2009) 3 NCC 527 the Court of Appeal held that:-
"Without going into the credibility of the witnesses called by the prosecution, but based on the evidence presented before the trial Court, it is my view that the Court does not have to believe the evidence adduced by the prosecution at this stage but the issue to be determined is that if the case for the prosecution is believed, is there anything for the appellant to explain."
In ADUKU V. FRN (2009) 4 NCC 350. On the meaning of prima facie case the Court of Appeal has this to say:-
"What is meant by Prima Facie case? It only means that there is a ground for proceedings ... but a prima facie case is not the same as proof which comes later when the Court has to find whether the accused is finally guilty or not..... and the evidence discloses a prima facie case when it is such that un-contradicted and if believed it will be sufficient to prove the case against the accused."
See on thisDR. OLU ONAGORUWA V. THE STATE, (1993) 7 NWLR (Pt.303) 49 at 80 – 83.
The law is settled that if at the close of the evidence in support of the charge, it appears to the Court that a case is not made out against the defendant sufficient to require him to make a defence, the Court shall, as to that particular charge discharge him.
In AJULUCHUKWU V. THE STATE (2012) 7 WCC 281 the Court of Appeal on when a no submission will be upheld, stated that:-
"Where there has not been any evidence to establish the essential ingredients of the alleged offence, or the evidence of the prosecution has become manifestly unreliable after cross-examination, that it cannot reasonably be basis for conviction, the respondents should be discharged without being called upon for defence."
Without doubt, it would have been preferable for the learned trial judge to have recorded the plea of each of the accused persons separately in the direct speech. However, failure to do this cannot be fatal to their plea so long as the charge was read over and over and explained to them, whether jointly or separately, and they both understood the same and each of them individually entered his plea thereto. It would not matter, whether the Court's record which described the event was written in direct or reported speech. See UDEH V. STATE (1999) 7 NWLR (Pt.609). Anthony Okoro v. The State (Supra). National Revenue Mobilization Allocation and Fiscal Commission V. Johnson (Supra).
The authorities do not say that it must be recorded that the charge was read and explained to the accused to the satisfaction of the Court (as claim by the appellant) before proceeding to record his plea thereto.
Without doubt it is good practice for the trial Court to record that "the charge was read and fully explained to the accused to the satisfaction of the Court" but I do not think the failure to record will render the trial a nullity. SeeEYISI VS STATE(2000) 15 NWLR (Pt.691)555
The object of arraignment in terms of Section 215 of the Criminal Procedure Law is to ensure that justice is done to the accused by ensuring that he understands the charge against him and so as to enable him to make his defence.
In CHIKAODI MADU V. THE STATE (2012) NCC at 553 this Court on the essential requirement of valid arraignment enumerated conditions for valid arraignment:
"(a). The accused must be placed before the Court unfettered unless the Court shall see cause otherwise to order
(b). The charge or information shall be read over and explained to the accused to the satisfaction of the Court by the registrar or other officer of the Court; and
(c). The accused shall then be called upon to plead instantly thereto unless course, there exist any valid reason to do otherwise such as objection to want of service where the accused is entitled by law to service of a copy of the information and the Court is satisfied that he has in fact not been duly served therewith."
See also OLABODE V. STATE (2009) 4 NCC 199, OGUNYE v. STATE (1999) 5 NWLR (Pt.604) 518; MONSURU SOLOLA & ORS V. STATE, 22 NSCQR 254 at pp. 289-290.
However, in JOV V. DOM (1999) NWLR (pt.620) 538 at 541, this Court held that a question of law and jurisdiction can be raised at any time in the proceedings, but it is not on a free for all procedure. Per BELGORE JSC at P. 547 para C. F. has this to say:-
"This is so in order to avail the other side every opportunity to advert to that issue.
But to contend that issue of law or the Constitution can be raised at anytime and do nothing more than to raised it in argument is like laying a disrupting ambush for the opponent. This is not the spirit of our practice of adjudication of holding the even balance. Proper application must be made so that the other side will know clearly what he has to meet.
Indeed the Court of Appeal has no jurisdiction to quash any information or count unless there has been an application to quash it at the trial."
In ADEJOBI V. STATE (2011) 12 NWLR at page 351 this Court held that:-
"A question of law and jurisdiction can be raised at anytime in the proceedings, but it is not a free for all procedure, where a statute under which an issue or matter is to be raised has provided a procedure for raising such issue or matter, that procedure and no other, must be followed.
the duty to evaluate and consider the weight of evidence is principally that of the trial Court that had the opportunity of seeing and hearing the witnesses and observing their demeanour and not the Court of Appeal.
There is therefore no doubt at all that the mode of instituting criminal proceedings before the High Court for the offence of armed robbery is by summary trial procedure, i.e by Prefering a charge.
If the commission of a crime by a party to any proceeding is directly in issue in any proceeding it must be proved beyond reasonable doubt. In determining whether there has been a proof beyond reasonable doubt the Court evaluates the totality of the evidence called by the prosecution. See BOY MUKA v. THE STATE (1976) 9 – 10 Sc 193.
Where from the evidence furnished a witness has been inconsistent, without explanation, or when one witness discredits another, it is not for the Court to pick and choose which witness to believe and which not to believe among such witnesses. It cannot accredit one witness and discredit the other in such circumstance. See ONUBOGU v. THE STATE (1974) 9 SC 1 at 20; ATEJI v. THE STATE (1976) 2 SC 79 at 83 – 84.
This Court has also stated in PAUL AMEH v. THE STATE (1978) NSCC 308 that the prosecution cannot be said to have proved an allegation of criminal offence beyond reasonable doubt if they put before the Court two versions of the same incident. This happens when the prosecution put before the Court evidence pointing at his guilt and another set of evidence establishing his defence or innocence.
The law is that it is not enough for an accused to raise the defence of Alibi at the stage of trial. He must give adequate particulars of his whereabouts at the time of the commission of the offence to assist the police to make a meaningful investigation of the Alibi. If the Appellant said he was in a particular place, he must give a lead as to the specific place, names and/or addresses of who to contact and the relevant period he was away from the scene of crime.
Therefore, where an accused person raises an Alibi, the defence must be unequivocal and must be given during investigation and not during the hearing of the defence. The mere allegation that he was not at the scene is not enough, the accused person must give some explanation of where he was, and who could know of his presence at that other place at the material time of the commission of the offence in question. See:- YANOR VS THE STATE (1965) 1 All NLR 193, and OBIODE VS THE STATE (1970) 1 All NLR 35.
It is trite that where a trial Court evaluates the evidence and makes a proper appraisal thereof, it is not the business of an appellate Court to substitute its views for the views of the trial Court. A trial Court, which had the opportunity of watching the demeanour of the witnesses who testified before it is entitled to believe or disbelieve such witness. See Onwugbufor Vs Okoye (1996) 1 NWLR (Pt.424) 252; Busari Vs The State (Sup
It must also be borne in mind that where the evidence before the Court depends mainly on the credibility of the witnesses, no Court is in as good a position as the trial Court, which had the opportunity of seeing and hearing the witnesses testify and of observing their demeanour in the witness box, to determine the credibility of those witnesses. See: EKPA VS. UFONG(1991) NWLR (PT.197) 258; ONUOHA V. THE STATE (1989) NWLR (PT.101) 23; BUSARI VS. THE STATE (2015) LPELR 24279 (SC).
In a charge of murder, the onus is on the prosecution to prove the following beyond reasonable doubt:
a. That the deceased died;
b. That the death of the deceased resulted from the act of the accused; and
c. That the act of the accused was intentional with knowledge that death or grievous bodily harm was its possible consequence.
See: Akpan Vs The State (1994) 9 NWLR (Pt.368) 347; Jimoh Vs The State (2014) 3 SC 1; (2014) LPELR – 22464(SC); Sunday Udor Vs The State (2014) 5-6 SC (Pt.II) 177; (2014) LPELR-23064 (SC).
In Agip (Nig) Ltd V. Agip Petroli International (2010) 5 NWLR (Pt.1187) 348 at 413 paragraphs B -D, this Court said:-
"It is trite principle also that a Court should not decide a case on mere conjecture or speculation. Courts of Laws are Courts of facts and laws. They decide issues on facts established before them and on laws. They must avoid speculation."See Ohue v. NEPA (1998) 7 NWLR (Pt.557) 187;Oguanzee V. State (1998) 5 NWLR (Pt.551) 521; Animashaun V. UCH (1996) 10 NWLR (Pt.476) 65; Adefulu V. Okulaja (1996) 9 NWLR (Pt.475) 668.
For the prosecution to establish its case on murder, it must prove the following ingredients:-
1. That the death of Theophilus Afolabi has actually occurred.
2. That the death was caused by the Appellant.
3. That the act that led to the death of the deceased was done with the intention of causing death.
4. That the Appellant knew or had reason to know that death would be the probable consequence of his act.
See Ogumo v The State (2011) NWLR (Pt.1246) 314; Giwa V. The State (1996) 4 NWLR (Pt.443) 375 at 337; Akpan V. The State(1994) 25A LRCN 137 at 146; Adekunle v The State (2006) 43 WRN 1 at 24; Edwin Ogba v The State (1992) 2 NWLR (Pt.222)164 at 198 paragraph G; Onah v The State (1985) 3 NWLR (Pt. 12) 236.
Although the burden on the prosecution is to prove its case beyond reasonable doubt, the prosecution has a discretion to call on those witnesses it requires to establish its case. The law does not impose on the prosecution, the duty or function of both the prosecution and the defence. I have also not come across any rule of law which imposes an obligation on the prosecution to call a host of witnesses in proof of its case. See Adaje v The State (1979) 6 – 9 SC 18: Okonofua v State (1981) 6 – 7 SC 1; Saidu v State(1982) 4 SC 41; Okpulor v State (1990) 7 NWLR (Pt. 164) 581; Ugwumba v State (1993) 5 NWLR (Pt. 296) 660; Udo v State (2006) 15 NWLR (Pt. 1001) 179.
However, the law is settled that for the prosecution to prove its case beyond reasonable doubt, it must call vital witnesses whose evidence may determine the case one way or the other. Failure to call such vital witnesses is fatal to the prosecution's case.
On the question whether the essential ingredients of the offence of armed robbery had been established beyond reasonable doubt. It is to be stated that the elements of the said offence are:
(a) That there was a robbery or a set of robberies;
(b) That the robbers were armed;
(c) That the accused participated in the robbery.
See Bozin v State (1985) 2 NWLR (Pt. 8) 465; Ikemson v State (1989) 3 NWLR (Pr. 110) 455.
It is to be said that proving the offence beyond reasonable doubt is not synonymous with the number of witnesses called by the prosecution. This Court had restated what is required in meeting the standard of proof beyond reasonable doubt in the case of Akalezi v State (1993) per Ogwuegbu JSC at page 13 as follows:
"Proof beyond reasonable doubt is not attained by the number of witnesses fielded by the prosecution. It depends on the quality of evidence tendered by the prosecution. In the case of Miller v Minister of Pensions (1947) 2 ALL ER 372, it was held that Proof beyond reasonable doubt does not mean proof beyond all shadow of doubt and if the evidence is strong against a man, as to leave only a remote probability in his favour; of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt."
The learned Supreme Court jurist further stating that:
"The Court can act on the evidence of a single witness if that witness can be believed given all the surrounding circumstances. One single credible witness can establish a case beyond reasonable doubt."
What is expected of the prosecution is to exercise of discretion on who to call to testify and is not bound to utilize those named in the proof of evidence. This is so since the Court can convict on the evidence of only one witness if that witness is not an accomplice in the commission of the offence and his evidence sufficiently probative of the offence charged. see Ofoke Nwambe v State (1995) 3 NWLR (Pt.384) 385 at 408; Onafowokan v State(1987) 3 NWLR (Pt.61) 538; Ogbodu v State (1987) 2 NWLR (Pt.54) 20; Adaje v State(1979) 6-9 SC18.
The law is settled that the question whether an accused person is properly identified as one of those who participated in the commission of the criminal act is a question of fact to be considered by the trial Court on the evidence adduced for that purpose. See: Ukpabi vs The State (2004) 11 NWLR (Pt.884) 439.
It is also trite that whenever the case against an accused person depends wholly or substantially on the correctness of the identification of the accused, and the defence alleges that the identification was mistaken, the Court must closely examine the evidence and in acting on it must view it with caution, so that any real weakness discovered about it must lead to giving the accused the benefit of the doubt. See: Ukpabi Vs The State (supra); R V. Turnbull (1975) 3 All ER 549: Abudu Vs The State (1985) 1 NWLR (Pt.1) 55 @ 51 – 62; Mbenu vs The State (1988) 3 NWLR (Pt.84) 615 @ 628; Ikpo Vs The State (2015) 2 – 3 SC (Pt.III) 88 @ 111 lines 6 – 21 per Kekere-Ekun, JSC.
However, if the evidence of a lone witness is believed, his identification of an accused person can sustain a conviction, even on a charge of murder.
See: Ochiba Vs The State (2011) 12 SC (Pt.IV) 79.
It is settled law that the evidence of a single witness, if believed by the Court can establish a criminal case, even if it is a murder charge. see Effiong Vs The State (1998) 8 NWLR (Pt.562) 362 SC.
There is no law which imposes an obligation on the prosecution to tender as evidence the weapons used to commit an offence. Most often at times the culprits do discard the weapons after committing the offence. Similarly stolen items are rarely recovered. And where they are recovered, it is not absolutely necessary that they must be tendered in evidence in order to secure a conviction.
The law imposed no obligation on the prosecution to call a host of witnesses to prove its case. All it needs to do is to call enough material witnesses to prove its case, and in so doing it has a discretion in the matter. It does not lie in the mouth of the defence to urge the prosecution to call a particular witness. See Olayinka Vs The State (2007) 9 NWLR (Pt 1040) 561. And for the sake of emphasis the evidence of a single witness, if believed by the Court can establish a criminal case. See Effiong Vs The State (supra).
It is settled law that in order to discharge the burden of establishing the guilt of an accused person beyond reasonable doubt in a charge of armed robbery, the prosecution must prove the following:
1. That there was a robbery or series of robberies.
2. That each of the robberies was an armed robbery.
3. That the appellant was the robber or one of those who participated in the armed robbery.
See: Bozin vs The State (1985) 2 NWLR (Pt.8) 465; Suberu Vs. The State (2010) 8 NWLR (Pt.1197) 586; Ani V. The State (2003) 11 NWLR (Pt.830) 145; Attah V. The State (2010) 10 NWLR (Pt.1201) 190 @ 244 B D; Olayinka Vs The State (2007) 9 NWLR (Pt.1040) 551.
Section 187 (1) of the Criminal Procedure Code (applicable in Northern Nigeria) and Section 215 of the Criminal Procedure Act (applicable in Southern Nigeria) contain similar provisions relating to the procedure for the arraignment of an accused person. The requirements are as follows:
1. The accused person shall be brought before the Court unfettered (unless the trial Judge otherwise directs).
2. The charge shall be read and explained to the accused person to the satisfaction of the Court in the language he understands.
3. The accused person shall then be called upon to plead thereto instantly.
The requirements are mandatory, as they ensure that the accused person's right to fair hearing, as enshrined in Section 36 (6) of the 1999 Constitution, is protected. Failure to comply with these requirements would render the trial a nullity for lack of fair hearing. See: Kajubo v. The State (1988) 1 NWLR (Pt.73) 721 @ 732 E – F: Eyorokoromo v. The State (1979) 6 9 SC 3; Josiah v. The State (1985) 1 SC 406 @ 416; Torri v. National Park Service of Nigeria (2011) 6 – 7 SC (Pt.III) 171 @ 200 lines 4 – 31.
An accused person charged for an offence can only be charged under the law that creates the offence. Such a law must be in force at the time the offence was committed.
There is no provision in our Constitution to charge an accused person under a law that was not in existence at the time the conduct complained of manifested, or to create an offence to crirnimalise a conduct after the act.
A trial conducted under a law that has been repealed, no matter how well conducted and decided is a nullity. See Ogbomor v. State (1985) 1 NWLR (Pt.2) p.223.
"felony' means an offence on conviction for which a person can, without proof of his having been previously convicted of an offence, be sentenced to death or to imprisonment for three years or more, or which is declared by law to be a felony."
Dokubo-Asari v. F.R.N, LGC(8/6/2007) E
It is to be reiterated that in criminal matters such as the one we are faced with the standard of proof is beyond reasonable doubt. This is a Principle that is fundamental and sacrosanct and in establishing that required standard of proof, all the essential elements or ingredients must be proved on that standard. This is because the ingredients are cumulative and none should be found lacking before the Proof beyond reasonable doubt is said to have been met. Therefore once all those vital ingredients are established altogether beyond reasonable doubt the Court is enabled to convict the accused.
Adekoya v. The State. LGC(13/1/2017) C
Section 215 of the Criminal Procedure Law of Ondo State lays down the conditions to be fulfilled before there is a valid and proper arraignment of an accused person. The following conditions must be satisfied.
1. the accused person shall be placed before the Court unfettered unless the Court otherwise directs e.g. he may be fettered if the judge is satisfied that the accused shows signs of being violent;
2. the charge shall be read over and explained to the accused person to the satisfaction of the Court in the language he understands by the Registrar or other officer of the Court;
3. the accused person shall be called upon to plead to the charge.
See John Timothy v. FRN (2012) 6SC (Pt.iii) p.159
Effiom v. State (1995) 1 NWLR (Pt.373) p.507
Kojubo v. State (1988) 1 NSCC 19 NSCC P.475
Madu v. State (2012) 6SC (pT.1) p.80
Failure to comply with any of these conditions renders the trial a nullity.
I will not be breaching any law if I take us back to an undergraduate criminal law class to refresh our memory on the established criminal law principles. It is a settled principle of criminal law as stated by the Appellant that for an accused to be convicted for an offence, the burden to prove the guilt lies with the prosecution, in this instance, the Respondent.
The point I am trying to make is that the burden of proof in criminal cases is clearly and squarely rest on the prosecution (the Respondent in this appeal), and this burden does not shift and the standard required is beyond reasonable doubt. See Kanu vs. A.G. Imo State (2019) 10 NWLR (Pt. 1680) 369, Almu vs. State (2009) 10 NWLR (Pt. 1148) 31, Charles Egbirika vs. State NSCQR Vol. 57 2004 p. 457, Chukwuemeka Agugua vs. The State (2017) 10 NWLR (Pt. 1573) 254, State vs. Yahaya (2019) NWLR (Pt. 1690) 397 @ 416.
I must hasten to also add that when the Appellant makes an assertion the burden to prove that assertion falls on him. This does not mean that the Appellant has a duty in law to prove his innocence. He certainly does not. That is why the fact that an accused lied cannot be leveraged by the prosecution to establish his case. See Okereke vs State (2016) 5 NWLR (pt. 1504) 107. PER TOBI, J.C.A.
T he standard of proof unlike civil cases is not a balance of probability but a very high probability which the law refers to as proof beyond reasonable doubt. Proof beyond reasonable doubt does not mean beyond all shadow of doubt or beyond all reasonable doubt but rather, proof that any reasonable man will be right to agree with the fact that the accused committed the offence because it is compelling and convincing with no room for any serious or substantial doubt.
If the doubt is just a fanciful doubt, that is, doubt that does not affect any of the ingredients of the offence, the prosecution would not be said to have proved the case beyond reasonable doubt. I will just refer to one or two cases here. In Ankpegher vs.
The State (2018) 1 NWLR (Pt. 1631) 484, the apex Court per Okoro, JSC held: “Both counsel representing the appellant and respondent respectively have admirably stated in their respective briefs of argument the legal meaning of the phrase proof beyond reasonable doubt and I commend them for this agreement even though they disagree on the quantum and quality of evidence to reach that standard. For the avoidance of doubt, I shall restate, though briefly the meaning of proof beyond reasonable doubt.
In all criminal trials, the burden is on the prosecution to establish or prove the essential ingredients of the offence which an accused person is charged with beyond reasonable doubt, and the prosecution will readily achieve this if it can assemble credible, cogent and believable/or reliable evidence against the accused person. Thus, proof beyond reasonable doubt does not mean proof beyond all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence. It does not mean proof beyond all shadow of doubt or proof to the tilt.
As was stated by Lord Denning J, in Miller v Minister of Pensions (1947) 2 All ER 372, a case which has been severally relied upon by Courts in Nigeria, it does not mean proof beyond the shadow of doubt. The distinguished and revered jurist observed: The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong as to leave only a remote possibility in his favour which can be dismissed with one sentence – of course it is possible but not in the least probable the case is proved beyond reasonable doubt.
See also Nwaturuocha v. The State (2011) 6 NWLR (Pt.1242) 170, Smart v. The State (2016) 1-2 SC (Pt.11) 41, (2016) 9 NWLR, (Pt.1518) 447, Oseni v. The State (2012) LPELR-7833 (SC), (2012) 5 NWLR (Pt.1293) 351, Hassan v.The State (2016) LPELR-42554 (SC). PER TOBI, J.C.A.
It is further settled that the presumption of innocence enures in favour of a Defendant/Accused Person. See Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and the cases of STATE VS. ZAKARI (2020) 8 NWLR (PT. 1727) 484, BOTU VS. STATE (2018) 3 NWLR (PT. 1607) 410, AJAYI VS. STATE (2013) 9 NWLR (PT. 1360)589 and ADEKOYA VS. STATE (2012) 9 NWLR (PT. 1306) 539.
The fact of a pending criminal charge against a person for which he has not been found guilty would not deny him access to a Court to enforce his fundamental rights where he feels same has been infringed. Whether or not the action would succeed is a different matter entirely. He still enjoys his fundamental right until he is proven guilty. The presumption of innocence enures in his favour until found guilty. The fact that a person has been accused of a crime no matter how serious will not deny him access to Court to enforce his fundamental right if these rights have been violated. See IHIM VS.
MADUAGWU (2021) 5 NWLR (PT. 1770) 584 at 616, Paragraphs C-D and DURUAKU VS. NWOKE (2015) 15 NWLR (PT. 1483)417 at 473-474, Paragraphs G-A . PER OJO, J.C.A.
To sustain a conviction for charge of murder, the following ingredients must be proved: (1) That the deceased had died (2) That the death of the deceased had resulted from the act of the accused person; (3) That the act of the accused which caused the death or grievous bodily harm was its probable consequences. See the following cases: Mayaki v. The State (2008) U SCM 49 at 59–60, Afosi v. The State (2013) 12 SCM (Pt. 2) 28 at 41 paras G–I. PER ABUNDAGA, J.C.A.
But it is instructive at this juncture to restate the ingredients which the prosecution must prove in order to sustain a valid conviction for the offence of murder. The ingredients, as settled in law are: (i) That the deceased had died, (ii) That the death of the deceased had resulted from the act of the accused person, (iii) That the act which caused the death or grievous bodily harm was its probable consequences. See the following cases: Maiyaki v. The State (2008) 11 SCM 49 at 39 – 60, Afosi v. The State (2013) 12 SCM (Pt. 2) 28 at 41 paras. G – I. PER ABUNDAGA, J.C.A.
I will not be breaching any law if I take us back to an undergraduate criminal law class to refresh our memory on the established criminal law principles. It is a settled principle of criminal law as stated by the Appellant that for an accused to be convicted for an offence, the burden to prove the guilt lies with the prosecution, in this instance, the Respondent.
The point I am trying to make is that the burden of proof in criminal cases is clearly and squarely rest on the prosecution (the Respondent in this appeal), and this burden does not shift and the standard required is beyond reasonable doubt. See Kanu vs. A.G. Imo State (2019) 10 NWLR (Pt. 1680) 369, Almu vs. State (2009) 10 NWLR (Pt. 1148) 31, Charles Egbirika vs. State NSCQR Vol. 57 2004 p. 457, Chukwuemeka Agugua vs. The State (2017) 10 NWLR (Pt. 1573) 254, State vs. Yahaya (2019) NWLR (Pt. 1690) 397 @ 416.
I must hasten to also add that when the Appellant makes an assertion the burden to prove that assertion falls on him. This does not mean that the Appellant has a duty in law to prove his innocence. He certainly does not. That is why the fact that an accused lied cannot be leveraged by the prosecution to establish his case. See Okereke vs State (2016) 5 NWLR (pt. 1504) 107. PER TOBI, J.C.A.
T he standard of proof unlike civil cases is not a balance of probability but a very high probability which the law refers to as proof beyond reasonable doubt. Proof beyond reasonable doubt does not mean beyond all shadow of doubt or beyond all reasonable doubt but rather, proof that any reasonable man will be right to agree with the fact that the accused committed the offence because it is compelling and convincing with no room for any serious or substantial doubt.
If the doubt is just a fanciful doubt, that is, doubt that does not affect any of the ingredients of the offence, the prosecution would not be said to have proved the case beyond reasonable doubt. I will just refer to one or two cases here. In Ankpegher vs.
The State (2018) 1 NWLR (Pt. 1631) 484, the apex Court per Okoro, JSC held: “Both counsel representing the appellant and respondent respectively have admirably stated in their respective briefs of argument the legal meaning of the phrase proof beyond reasonable doubt and I commend them for this agreement even though they disagree on the quantum and quality of evidence to reach that standard. For the avoidance of doubt, I shall restate, though briefly the meaning of proof beyond reasonable doubt.
In all criminal trials, the burden is on the prosecution to establish or prove the essential ingredients of the offence which an accused person is charged with beyond reasonable doubt, and the prosecution will readily achieve this if it can assemble credible, cogent and believable/or reliable evidence against the accused person. Thus, proof beyond reasonable doubt does not mean proof beyond all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence. It does not mean proof beyond all shadow of doubt or proof to the tilt.
As was stated by Lord Denning J, in Miller v Minister of Pensions (1947) 2 All ER 372, a case which has been severally relied upon by Courts in Nigeria, it does not mean proof beyond the shadow of doubt. The distinguished and revered jurist observed: The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong as to leave only a remote possibility in his favour which can be dismissed with one sentence – of course it is possible but not in the least probable the case is proved beyond reasonable doubt.
See also Nwaturuocha v. The State (2011) 6 NWLR (Pt.1242) 170, Smart v. The State (2016) 1-2 SC (Pt.11) 41, (2016) 9 NWLR, (Pt.1518) 447, Oseni v. The State (2012) LPELR-7833 (SC), (2012) 5 NWLR (Pt.1293) 351, Hassan v.The State (2016) LPELR-42554 (SC). PER TOBI, J.C.A.
It is further settled that the presumption of innocence enures in favour of a Defendant/Accused Person. See Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and the cases of STATE VS. ZAKARI (2020) 8 NWLR (PT. 1727) 484, BOTU VS. STATE (2018) 3 NWLR (PT. 1607) 410, AJAYI VS. STATE (2013) 9 NWLR (PT. 1360)589 and ADEKOYA VS. STATE (2012) 9 NWLR (PT. 1306) 539.
The fact of a pending criminal charge against a person for which he has not been found guilty would not deny him access to a Court to enforce his fundamental rights where he feels same has been infringed. Whether or not the action would succeed is a different matter entirely. He still enjoys his fundamental right until he is proven guilty. The presumption of innocence enures in his favour until found guilty. The fact that a person has been accused of a crime no matter how serious will not deny him access to Court to enforce his fundamental right if these rights have been violated. See IHIM VS.
MADUAGWU (2021) 5 NWLR (PT. 1770) 584 at 616, Paragraphs C-D and DURUAKU VS. NWOKE (2015) 15 NWLR (PT. 1483)417 at 473-474, Paragraphs G-A . PER OJO, J.C.A.
To sustain a conviction for charge of murder, the following ingredients must be proved: (1) That the deceased had died (2) That the death of the deceased had resulted from the act of the accused person; (3) That the act of the accused which caused the death or grievous bodily harm was its probable consequences. See the following cases: Mayaki v. The State (2008) U SCM 49 at 59–60, Afosi v. The State (2013) 12 SCM (Pt. 2) 28 at 41 paras G–I. PER ABUNDAGA, J.C.A.
But it is instructive at this juncture to restate the ingredients which the prosecution must prove in order to sustain a valid conviction for the offence of murder. The ingredients, as settled in law are: (i) That the deceased had died, (ii) That the death of the deceased had resulted from the act of the accused person, (iii) That the act which caused the death or grievous bodily harm was its probable consequences. See the following cases: Maiyaki v. The State (2008) 11 SCM 49 at 39 – 60, Afosi v. The State (2013) 12 SCM (Pt. 2) 28 at 41 paras. G – I. PER ABUNDAGA, J.C.A.
The offence of conspiracy is established once it is shown that the criminal design alleged is common to all the suspects. Proof of how the suspects are connected with or among themselves is not necessary. As a matter of fact, the conspirators need not know each other. They also need not have started the conspiracy at the same time. The foundation of the offence is the meeting of minds of the conspirators. The offence of conspiracy is not specifically defined in our Penal or Criminal Code. Consequently, a direct positive evidence of the plot among the conspirators is hardly provable.
The Courts therefore tackle the offence of conspiracy as a matter of inference to be deduced from certain acts or omissions of the parties concerned. All the same conspiracy constitutes an agreement by two or more persons to do an unlawful act or to do a lawful act by unlawful means. See: Nwosu v. The State (2004) 15 NWLR (PT 897)466; Obiakor v. The State (2002) 10 NWLR (PT 776) 612. It is also trite that the Conspirators need not know themselves and need not have agreed to commit the offence at the same time.
But conspiracy can be inferred from the facts of doing things towards a common goal, where there is no direct evidence in support of an agreement between the accused persons. See: Aituma vs. State 2006 10 NWLR (PT 989) 452. Innocent v. State (2013) LPELR-21200. ABDU ABOKI, J.S.C
It is now well settled that in our criminal jurisprudence, the onus is on the prosecution to establish its case beyond reasonable doubt. See Josiah Orungua & Ors v. The State (1970) All NLR 266; (1970) LPELR 2780 (SC) – Olayinka Afolalu v. The State (2010) 16 NWLR (PT 1220) 584 – Miller v. Minister of Pensions (1947) 2 All ER 372 – Yongo v. Commissioner of Police (1992) 4 SCNJ 113; (1992) 8 NWLR (pt. 257)36 – Alonge v. IGP (1959) 4 FSC 203; (1959) SCNLR 516 – Babuga v. State (1996) LPELR-701 SC; (1996) 7 NWLR (PT. 460) 279 – Sections 135 and 138 of the Evidence Act, 2011 (as amended).
JOHN INYANG OKORO, J.S.C.
It is now settled that criminal guilt of an accused person could be established either by confessional statement of the accused person, circumstantial evidence or evidence of an eyewitness otherwise known as direct evidence. See Ikemson v. State (1989) 3 NWLR (Pt. 110) 455; Edamine v. The State (1996) 3 NWLR (Pt. 438) 350. PER JOHN INYANG OKORO, J.S.C.
It is settled that a Court has power, under Section 163 of the Criminal Procedure Act (which is im pari materia to Section 163 of the Criminal Procedure Law, applicable to Ekiti State) to alter or add to any charge before judgment is given and every such alteration or addition must be read and explained to the accused. The procedure on alteration of a charge as prescribed by Section 164 of the Criminal Procedure Law of Ekiti State is set out under Subsections (1), (2) (3) and (4) thereof.
The provisions of the Section are as follows:- “(1) If a new charge is framed or alteration made to a charge under the provisions of Section 162 or Section 163 the Court shall forthwith call upon the accused to plead thereto and to state whether he is ready to be tried on such charge or altered charge. (2) If the accused declares that he is not ready the Court shall consider the reasons he may give and if proceeding immediately with the trial is not likely in the opinion of the Court to prejudice the accused in his defence or the prosecutor in his conduct of the case the Court may proceed with the trial as if the new or altered charge had been the original charge. (3) If the new or altered charge is such that proceeding immediately with the trial is likely, in the opinion of the Court, to prejudice the accused or the prosecutor the Court may either direct a new trial or adjourn the trial for such period as the Court may consider necessary. (4) Where a charge is so amended, a note of the order for amendment shall be endorsed on the charge, and the charge shall be treated for the purpose of all proceedings in connection therewith as having been filed in the amended form.” Compliance by the Court strictly with the provisions of Section 164 of the Criminal Procedure Law, quoted above, is essential.
Therefore, failure to request the accused to plead to the amended charge will result in the whole proceedings being declared null and void. See: AMAKO v. STATE (1995) LPELR 451 SC. ABDU ABOKI, J.S.C
Both the appellant and the respondent are adidem on the three essential elements to be established in a charge of armed robbery. These are: 1. That there was a robbery or series of robberies 2. The robbery was an armed robbery and 3. The accused participated in the robbery. See Musa v. State (supra) FRN v. Dairo (supra) and Saminu v. State (supra). The prosecution must lead cogent and positive evidence that leaves no room whatsoever for any other conclusion other than that it was the appellant who committed the offence.
Where there is any slightest doubt on the case of the prosecution, the benefit of doubt must be resolved in favour of the accused person. In other words, the doubt must be genuine and reasonable arising from evidence before the Court. See The State v. Aibangbee (1988) 7 SC (Pt. 1) 96 at 132-133 and Mbenu v. The State (1988) 7 SC (Pt. 111) 71 at 87 Para 10-20. PER TALBA, J.CA.
The Federal High Court (Civil Procedure) Rules 2009 deals with civil cases in the Federal High Court. It was not made to apply in criminal trials and does not apply in criminal trials. The Administration of Criminal Justice Act, 2015 applies to criminal trials. It does not envisage the use of motion on notice under the Federal High Court Civil Procedure Rules in a criminal trial.
The learned counsel for the Appellant submitted that the law and practice before the trial Court is that hearing of notice of preliminary objections are governed by the provision of Order 26 of the Federal High Court Civil Procedure Rules 2009 now 2019. Counsel did not furnish the Court with either the statutory authority or the case law in support of the use of the provisions of the Federal High Court Civil Procedure Rules 2009 now 2019 in a criminal procedure.
Therefore I am of the considered view that the provisions of the Federal High Court Civil Procedure Rules 2009 now 2019 are inapplicable in any manner or form in the proceedings relating to charge no FHC/KT/23C/2018 or any other criminal proceedings before the trial Court, and I so hold. Therefore all arguments of the Appellant based on the said Federal High Court Civil Procedure Rules 2009 now 2019 in this matter go to no issue and are consequently discountenanced. PER AMADI, J.C.A.
The Appellant was charged under Section 14 and 19 of the NDLEA Act for conspiracy and unlawful possession of 41 kilograms of Tramadol. While there is no dispute as to the provision of Section 19 of the NDLEA Act. The said Section provides thus: Any person who without lawful authority, knowingly possesses the drugs popularly known as cocaine, LSD, Heroin or any other similar drugs, shall be guilty of an offence under this Act and liable on conviction to be sentenced to imprisonment for a term not less than fifteen years and not exceeding 25 years.
The argument of the Appellant is that Tramadol was not specifically named under the said Section 19 of the NDLEA Act Cap N40 LFN 2004. In the case of Okewu v. Federal Republic of Nigeria (supra), the trial Judge defined Indian hemp that is Cannabis Sativa as a narcotic drug because it alters perception or consciousness therefore under prohibition by law. The Court equally reached the same decision in Mohammed v FRN (Supra).
In this case, the learned trial Court Judge held thus: “It is well settled principle of law in recent times that any drug substance which if found in the possession of a person and if the content after being tested in any recognised Government Laboratory and if proves positive of Cocaine, heroin, LSD or any similar drugs is described as psychotropic substance and narcotic drug, most especially where if taking in excess can cause stupor, coma, drowsiness or convulsion that alters a person perception and tramadol falls within that category if taking in excess”.
See page 10 of the ruling at page 47 of the record. The use of the phrase “or any other similar drugs” clearly means that the list is not exhaustive. The learned Judge was therefore right in relying on the aforesaid cases in her ruling. These issues are equally resolved in the favour of the Respondent and against the Appellant. PER AMADI, J.C.A.
Section 364 of the Criminal Code Law of Delta State under which the appellant was charged for the offence of kidnapping provides that: Any person who….. (1) Unlawfully imprisons any person, and takes him out of Nigeria, without his consent; or (2) Unlawfully imprisons any person within Nigeria in such a manner as to prevent him from applying to a Court for his release or from discovering to any other person the place where he is imprisoned, or in such a manner as to prevent any person entitled to have access to him from discovering the place where he is imprisoned, is guilty of a felony, and is liable to imprisonment for ten years.” It has been firmly established by a long line of cases that for the prosecution to secure a conviction for the offence of kidnapping, it has to prove the following facts beyond reasonable doubt. (i) That the victim was seized, and taken away by the accused person. (ii) That the victim was taken away against his consent. (iii) That the victim was taken away without lawful excuse.
See OKASHETU V. STATE (SUPRA), (2016) LPELR- 40611(SC) AT 15-16 (F-B). PER BOLAJI-YUSUFF, J.C.A.
It is important to reproduce the provision of Sections 2(2), (7) and (14) of the Secret Cult and Secret Societies Prohibition Law of Kwara State as follows: Section 2(2) provides thus: No person shall – (a) Associate with a secret cult or secret society; or (b) Join a secret cult or secret society as a member; or (c) Give financial or material support to a secret cult or secret society; or (d) Participate in any activity of a secret cult or secret society.
Section 7 provides thus: Any person who – (a) Keeps in his possession or custody, or under his control any insignia, document or other property of a secret cult or secret society; or (b) Wears any insignia or is marked with any sign or symbol or tattoo of a secret cult or secret society; or (c) Uses any other object associated with a secret cult or secret society shall be presumed to be a member of the secret cult or secret society, unless the contrary is proved. Section 14 provides thus: Any person who contravenes the provisions of Section 2 or 8 commits an offence and is liable on conviction to imprisonment for a term of not less than 10 years but not exceeding 14 years and also to a fine of N50,000.00.
PER AMADI, J.CA.
I make haste to state here that the criminal trial of every accused person begins with arraignment and culminates with conviction and sentence in judgment. In the precedent relied upon by the Respondent’s learned Counsel, STATE V. LAWAL (2013) 7 NWLR (FT. 1354) AT PP.586, Mohammad, JSC, defined criminal trial to mean “the whole of the proceedings including the judgment and sentence” This therefore has been the constitutionally inalienable right enjoyed by every accused person.
It is the Respondent’s constitutional right to be heard through his written/oral address or Counsel’s address on his behalf.
Section 294(1) of the 1999 Constitution (as amended) contemplated written address or Counsel’s address to be part of the criminal trial or proceedings, when it provides that: Section 294 (1) Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof. Per NNAEMEKA-AGU, JSC in NDU V. STATE (1990) LPELR-1975(SC) (P. 45, PARAS.
A-C) relying on Obodo v. Olomu & Anor (1987) 3 N.W.L.R. (Pt.59) 111, at p. 123-124, re-iterated this point thus: …this Court has stated before, the addresses of Counsel are an essential part of the trial. That can be the only possible inference from the fact that the constitution itself used the conclusion of addresses as a very important determinant of the time limit for delivery of judgments under Section 258 of the Constitution of 1979. See also STATE V.
LAWAL (2013) 7 NWLR (PT. 1354) AT PP.585, wherein this Honourable Court held that “addresses by parties or their Counsel are an integral part of the hearing or trial of an accused person.” The trial Court having conducted the proceedings of 20/11/2015 in the absence of the Respondent jumped the guns and breached his constitutional right.
The essence of the presence of an accused throughout his trial is to afford him an adequate opportunity to play his statutory role and liberty to respond at every stage of the proceedings personally or through a legal practitioner of his own choice for the purpose of ensuring fair hearing. PER AJI, J.S.C.