Effect of offences proved beyond reasonable doubt

Emmanuel Joseph v. The State
CITATION: (2020) LPELR-49635 (CA)
 
In the Court of Appeal
In the Calabar Judicial Division
Holden at Calabar
ON MONDAY, 18TH MAY, 2020
Suit No: CA/C/296C/2016
 
Before Their Lordships:
 
MOJEED ADEKUNLE OWOADE, JCA
PHILOMENA MBUA EKPE, JCA
MUHAMMED LAWAL SHUAIBU, JCA

THE STATE                                                                                                     
Respondent(s)
 
LEAD JUDGMENT DELIVERED BY MUHAMMED LAWAL SHUAIBU, J.C.A.

ISSUES FOR DETERMINATION
The Court determined the appeal on the following issues:
1. Whether the offence of Armed Robbery in count 1 of the information was not proved beyond reasonable doubt against the appellant.
2. Whether the offence of rape in count 2 of the information was not proved beyond reasonable doubt against the appellant?

APPELLANT’S SUBMISSION
Arguing the first issue, counsel for the appellant submitted that the prosecution failed to prove the essential elements required to establish the offence of armed robbery as the ownership of both the stolen money and three phones were not linked to the persons they purport to be. Counsel conceded that the prosecution is not required to call a particular witness but, in this instance, it is incumbent on the prosecution to call one Elder Etoidem Asuquo Umoh being the alleged victim of the armed robbery. Thus, failure to call this vital witness is fatal to the prosecution’s case. He referred to Archibong Vs The State (2004) NWLR (Pt 853) 488.
    
Learned counsel submitted further that none of the evidence led sufficiently linked the appellant with the offence of armed robbery. The appellant was not seen by either PW1 or PW2. That being the position, the findings of the High court to the effect that the appellant was in possession of a Nokia handset allegedly stolen during the armed robbery operation is perverse. Thus, the doctrine of recent possession as provided in Section 167 of the Evidence Act, 2011 is inappropriate in the circumstance. Since the evidence led is at variance with the charge, it leaves room for reasonable doubt as to the guilt of the appellant, which doubt ought to have been resolved in his favour.
   
Counsel finally submitted that there was no direct evidence against the appellant and the evidence been relied on in convicting the appellant for the alleged armed robbery being circumstantial in nature, same must be cogent, complete and unequivocal. It must be compelling and lead to the irresistible conclusion that the accused is the culprit. He referred to Orji Vs The State (2008) Vol. 163 LRCN 58 to the effect that the facts must be incompatible with the innocence of the accused and also incapable of explanation upon any other reasonable hypothesis than that of his guilt.
  
On the second issue, learned counsel for the appellant submitted that the evidence of the prosecution particularly that of PW2 is grossly bereft of proof of the essential ingredients of the offence of rape. He contended that there was no evidence that any of the alleged armed robbers had unlawful carnal knowledge with PW2. Further on the issue, learned counsel submitted that having rightly found that there was no admission of the offence of rape, it was therefore wrong for the trial judge to find that the offence of rape was proved against the Appellant in the absence of any evidence connecting him with the said offence.

RESPONDENT’S SUBMISSION
On issue one, learned counsel for the respondent submitted that the High court was right in convicting the Appellant for the offence of Armed Robbery. He referred to the evidence of PW1, PW2, PW3 and PW4 in contending that the prosecution had established that there was a robbery incident and that Exhibit C qualifies as an offensive and/or dangerous weapon. Also the evidence of PW1, PW2 and PW3 shows that the appellant was in possession of one of the phone stolen during the robbery incident of 22/11/2011. He conceded the fact that there was no direct evidence fixing the appellant to the scene of the crime but relied on the doctrine of recent possession. Further arguing, learned Counsel submitted that in exhibits B and G, the appellant admitted being in possession of the Nokia Phone and that his feeble attempt to deny being in possession of the said Nokia phone orally in Court was punctured by Exhibit K, a bail application tendered through DW3. It was thus submitted that the appellant having been found with one of the phones stolen during the robbery incident and in the absence of any cogent explanation as to how he came by the phone, it was safe for the High court to involve the doctrine of recent possession against the appellant. He referred to Okoro Vs The State (2012) Vol. 207 LRCN 108 at 137.
  
On issue two, counsel for the respondent referred copiously to the evidence of PW2 and the medical report Exhibit A in submitting that the PW2 was raped. Also, the statements of the appellant in Exhibits G and B reveals evidence of the complicity of the Appellant in the offence of rape. Thus, the offence of rape was satisfactorily proved by the prosecution.

RESOLUTION OF THE ISSUES
In resolving the first issue, the court noted that it was common ground that there was no direct evidence against the appellant. The appellant was therefore convicted on circumstantial evidence. Agreeing with appellant’s counsel, the court held that circumstantial evidence which would support conviction must be unequivocal and positive; it must point irresistibly at the guilt of the accused. There must be no other co-existing circumstances throwing doubt on the inference that the accused and no other person is the guilty party. See Stephen Ukorah Vs State (1977) 5 SC 167, Valentine Adie Vs The State (1980) 1-2 SC 116, Joseph Lori Vs The State (1980) 8-11 SC 87 and Gabriel Vs The State (1989) 12 SC 129 at 133.
    
Applying the above to the instant case, the court held that the testimonies of the PW1 and PW3 at the High court seemed to suggest that the Nokia phone seen with the accused person was the phone belonging PW1’s husband, Ebong Asuquo Umoh, not the one robbed from Elder Etoidem Asuquo Umoh on the charge sheet. PW1 did not tell the High court her husband also bears Elder Etoidem Asuquo Umoh or that the two persons jointly own the said Nokia phone allegedly traced to the appellant. Again the description of the stolen phone was not given nor the ownership established, as the purported owner was not called to give evidence. The circumstantial evidence in the instant case, according to the Court, was neither complete nor compelling as to lead to the irresistible conclusion that the appellant committed the offence of Armed Robbery as charged. The Court stated the settled law that in drawing inference and reaching a conclusion of guilt from circumstantial evidence leading to the conviction of an accused, it is necessary to be sure that there are no other co-existing circumstances which would weaken or destroy the inference. Thus, for circumstantial evidence to constitute sufficient proof of the guilt of the accused, the evidence must be conclusive and unequivocal and irresistibly point to no other direction but the guilt of the accused. See Akinmoju Vs State (2000) 6 NWLR (Prt 662) 608 at 618 and Onah Vs The State (1985) 3 NWLR (Prt 12) 236 at 244.
   
On the doctrine of recent possession, the court held that the evidence led on the issue failed to satisfy the provision of Section 167 (a) of the Evidence Act, 2011 which empowers the court to presume that a man who is in possession of stolen goods soon after the theft to be either the thief or has received the goods knowing them to be stolen unless he can account for his possession. The court held that the conviction of the appellant was wrong as the High court found the appellant guilty because he was unable to contradict the evidence of PW1 and PW3 which was to the effect that he resisted PW1 from taking back the phone from him. However, the evidence of the prosecution which tend to show that the phone seen with the Appellant was stolen during the Armed Robbery incident of 22/11/2011 was not cogent and compelling.
  
On issue two, the Court began by stating the trite position of law that in all criminal prosecution, it is the duty of the prosecution to prove its case beyond reasonable doubt. It is not essential to prove the case with absolute certainty but the ingredients of the offence charged must be proved as required by law and to the satisfaction of the Court. See Agbachom Vs The State (1970) 1 ALL NLR 69 a5 76, Okpunor Vs The State (1990) 7 NWLR (Prt 1643) 581 at 593 and Obiakor Vs State (2002) 6 SC (Prt 11) 33 at 38. Going further, the Court stated that a man is said to commit rape when he has sexual intercourse with a woman in any of the following circumstances:
(a) Against her will
(b) Without her consent
(c) With her consent when her consent has been obtained by putting her in fear of death of or hurt,
(d) With her consent when the man knows that he is not her husband and that her consent was given because she believes that he is another man to whom she is or believes herself to be lawfully married,
(e) With her consent when she is under fourteen years of age or of unsound mind.
  
Agreeing with counsel to the respondent, the court stated that the most important and essential element of the offence of rape is penetration. The court will deem that sexual intercourse is complete upon proof of penetration of the penis into the vagina. Even the slightest penetration is sufficient to constitute the act of sexual intercourse. See Aliyu Vs State (2019) 11 NWLR (Prt 1682) 108 at 136-137, Isa Vs State (2016) 6 NWLR (prt 1508) 243 and Lucky Vs State (2016) 13 NWLR (Prt 1528) 126.
  
In convicting the appellant of rape, the High court held that although the offence was not proved against the appellant, it was an established fact that the rape was committed by the robbers. As one of the people that took part in the robbery, he is deemed to have committed the offence of rape by virtue of Section 7 (1) of the Criminal Code Cap. 38 Vol. 2 Laws of Akwa Ibom State. Also, the High court reasoned that the appellant must have committed the offence of rape which is why he offered to atone for the said offence in his extra judicial statements. In resolving issue two against the respondent, the court held that the offence of rape was not proved and the High court convicted the appellant on mere suspicion. This is because the prosecution did not lead any evidence showing that the appellant conspired, aided or abetted in the raping of PW2 pursuant to Section 7 (1) of the Criminal Code Cap. 38 Vol. 2 Laws of Akwa Ibom State. Suspicion, no matter how high, the Court held cannot ground criminal responsibility and since the appellant did not unequivocally admit raping PW2, the High court convicted him on mere suspicion, which conviction cannot stand in law.
 
HELD
In conclusion, the court held that the appeal was meritorious and allowed the same. The appellant was therefore discharged and acquitted.

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