Crimes not proved beyond reasonable doubt must be resolved in favour of accused (2)

IT is trite that where an alleged crime has not been proved beyond reasonable doubt, any lingering doubts must be resolved in favour of the accused person so held the Court of Appeal holden at Lagos in a unanimous leading judgment delivered by His Lordship, Justice Amina Adamu Augie, JCA with His Learned brothers, Tijani Abubakar And Abimbola Osarugue Obaseki-Adejumo JJCA concurring while allowing the appeal.

The parties were represented by E.A Oyebanji, Esq, with M.A. Olarewaju, Esq. for The Appellant And Obafemi Adamson, Esq., with Hafeez F. Owokoniran, Esq. for Respondent. The facts are as contained in the body of the judgment.

On its part, the Respondent submitted that it is a trial Court’s duty to evaluate evidence before it in reaching a just conclusion and since it is a master of facts, this Court will not ordinarily upturn its decision except where it is perserve, citing Akinisade vs. State (2006) 17 NWLR (Pt. 1007) 184, Gboko vs. State (2007) 17 NWLR (Pt.1063) 272; that Defendant can be convicted of a lesser offence where the elements of offence/offences charged are not proved, citing Adava vs. State (2006) 9 NWLR (pt. 984) 152; that it is the law that were there is an uncontroverted and unchallenged evidence that the stolen property was found in possession of a Defendant, the court is bound to believe the testimony adduced in proof of this fact in the absence of contrary evidence, citing Oforlete v. State (2000) 12 NWLR (Pt. 681) 415.

In this case, we can be break down the lower Court’s decision into the following-The Prosecution failed to prove the offences of conspiracy to commit armed robbery and armed robbery beyond reasonable doubt since PW2, the only eye witness to the crime, never said to the Court in a positive manner that the Appellant he was looking at in the dock was either the person he identified at the Police Station that morning of 16/9/2009 or was one of the men that robbed he and his wife on the day in question.

The decision would have been different if the machete allegedly found with the Appellant had been adduced in evidence ‘’then the presumption would have been so strong (notwithstanding PW2’s ambivalence) that it would have led to the practically irrefutable conclusion that he was one of the 3 men that had actually engaged in the armed robbery incident’’.

However, as no much machete was produced before it, and ‘’as PW2 did not categorically link him to the man identified at the Police Station, all that there is, is that he is somewhat connected to the armed robbery incident-even if he was not a direct participant in the said incident’’

‘’Even if the evidence is rather cloudy as to whether or not he actually took part in the crime, the evidence remains very clear that he was caught red-handed with the stolen telephones within the locality The Appellant failed to discharge the evidential burden that shifted onto him to disprove this fact because contrary to his defence that he was nowhere near the scene where a suspect was arrested by the Police, who were acting on a tip-off,

‘’he was arrested within the territorial jurisdiction of the Gowon Estate Police Post and was, therefore, not far away from the scene of the crime’’, and he gave contradictory testimony ‘’when questioned on his defence of being far removed from the scene’’.

‘’Obanla’’, who was a crucial witness for the Defence, was never called, and by Sectioin 167(d) of the Evidence Act, it is presumed that if called, ‘’his evidence would have been unfavorable to the defence case’’.

The Appellant’s demeanor did not portray him as a truthful witness- ‘’There were instance when he would pause for a few seconds before responding as if looking to ‘’construct’’ a convenient response that would not give the game away.

There were signs of discomfort at some questions. There were times that he would mutter to himself as if not bold enough to answer the probing questions properly. I became convinced that he was, in truth, quite, quite economical with the truth’’.

The Appellant is ‘’guilty of the lesser offence of receiving stolen property, contrary to the provision of S.427 of the Criminal Code Law of 2003 (The law then in force), as the evidence to this effect stands incontrovertible.

He is, therefore, convicted of the latter offence’’. I have gone through the Grounds of Appeal against the lower Court’s decision and naturally, the Appellant has no grouses with his acquittal for the charge of conspiracy to commit armed robbery and armed robbery alleged against him.

The Respondent did not appeal against the decision to acquit the Appellant for the offences as charged, and that aspect is, therefore, not an issue before us.

There is also no grouse regarding the substitution for a lesser offence, which the lower Court is allowed to do anyway – see Nwachukwu vs. The State (1986) 2 NWLR (Pt.25) 765, where the Supreme Court held that a conviction can lie in respect of a lesser offence either on a trial of the offence charged or by an accused pleading guilty to such lesser offence.

So, a Court has power to convict for a lesser offence, although not charged, if it is of the view that facts proved by the Prosecution do not establish the offence charged but constitute the lesser and related offence – Ndukwu vs. The State (1999) LPELR-CA/PH/96.

In this case, the Appellant’s main grouse is that the lower Court erred in convicting him for the said lesser offence of receiving stolen property when the phones allegedly stolen and received by him were not tendered in evidence, nor were they proved to be in his possession.

It is trite that where an alleged crime has not been proved beyond reasonable doubt, any lingering doubts must be resolved in favour of the accused person- see Kalu vs. the State (1988) 4 NWLR (Pt. 90) 503 SC, and Okonji vs. The State (1988) 1 NWRL (Pt. 52) 659 SC.

Any doubts in the mind of the Court should always be resolved in favour of the Accused, and I will add – across the board. Any doubts as whether the Appellant was actually one of the three men that robbed PW2, and his wife on the day in question, which resulted in his being acquitted by the lower Court of offences charged – armed robbery included, should have been the end of the matter.

To processed with the doubts in place, and convict for a lesser offence not charged, in the same judgment, is out of it. The bottom line is that the lower Court relied on different standards to acquit for the offences charged on the other hand.

It used the non-production of the ‘’machete’’ in evidence to justify its resolve to acquit the Appellant of armed robbery, and failed to address its mind to the fact that phones were also not produced it also said that Appellant was caught red-handed with the stolen phones, but there is no clear-cut evidence to that effect.

The Respondent submitted that the trial Court is the master of facts, and this Court should not ordinarily upturn its decision except where it is perverse, but it cited Akinsade vs. State (supra), where kalgo,JSC, very aptly observed- ‘’While I agree with the Court of Appeal that a trial Court judge is the master of the facts of evidence given before him, and inference, evaluation or assessment of evidence should not ordinarily be faulted by an appeal Court, such inference, assessment or evaluation of the evidence must be properly based on the available evidence given before him and not outside it—it is also necessary to ensure that there are no co-existing circumstances which would weaken or destroy the inference, evaluation or assessment—‘’.

The Appellant latched onto that last sentence and countered in his Reply brief that there were indeed co-existing circumstances that weaken and destroy the inference that he is the receiver of any stolen telephone or any property at all.

In the circumstances of this case, I have to agree with the Appellant that this is one of those cases, where this Court has to intervene, and set aside the conviction of the Appellant for the lesser offence of receiving stolen property.

The doubts expressed by the lower Court that resulted in his acquittal for the offences charged, has to be resolved in his favour for the said lesser offence.

The Appellant also challenged the sentence of 14 years imprisonment imposed on him by the lower Court. This is more or less an academic exercise, in view of what I have said earlier, however, it is weighty, and I will address it.

The Appellant submitted that it is trite that where sentence prescribed upon conviction is a term of imprisonment, the trial court has discretion to employ extenuating factors, such as whether the convict is a first offender and the age of the convict, to reduce the years of sentence, and he referred us to- Aminu Tanko vs. The State (2009) 4 NWLR (Pt. 430) 26 SC, Adejobi vs. State (2007) vol.22 WRN1, Anastatius Uwakwe vs. The State (1974) 9 SC 5.

However, the Prosecution failed to prove its case against the Appellant beyond reasonable doubt. He had no reason to explain anything to the Court, and the lower Court surely had no reason to pass any kind of sentence on him.

The end result is that the appeal succeeds and is allowed. The decision of the lower Court, including his conviction and sentence, is hereby set aside, and in its place, I do hereby enter a discharge and acquittal for the Appellant.