Crimes not proved beyond reasonable doubt must be resolved in favour of accused (1)

IN THE COURT OF APPEAL LAGOS JUDICIAL DIVISION HOLDEN AT LAGOS ON FRIDAY THE 17TH DAY OF MARCH 2015 BEFORE THEIR LORDSHIPS: AMINA ADAMU AUGIE JUSTICE, COURT OF APPEAL TIJANI ABUBAKAR JUSTICE, COURT OF APPEAL ABIMBOLA OSARUGUE OBASEKI-ADEJUMO JUSTICE, COURT OF APPEAL Appeal No. CA/L/593/2012 BETWEEN EMMANUEL ZACHEOUS ————— APPELLANT AND PEOPLE OF LAGOS STATE ————- RESPONDENT

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. The Appellant was arraigned before the Lagos State High Court on 7/3/2011, and he pleaded not guilty to a charge of conspiracy to commit armed robbery and armed robbery against him.

To prove its case, the Prosecution called- PW1, Corporal Joseph Ogunmiloro of the Gowon State Police Station, who testified that a complainant lodged a complainant that he and his wife were robbed at ‘’shasha’’, and dispossessed of their belongings, including mobile phones.

They got information that armed robbers were sharing their loot, and went to the place in question where they rounded them up. The Appellant was arrested but two others escaped.

They recovered a cutlass and the mobile phones, and transferred the matter to the Special Anti-Robbery Squad for further investigation. PW2, Keize Gregory Nwachinemere, the Complainant, who testified that the incident occurred when he was escorting his wife to the Bus Stop at about 5:30 to 5:45am in the morning of 16/9/2009 at ‘’shasha’’.

They were accosted by two men; one was short in stature and held a machete while the other man acted as if he was about to pull a gun.

They were made lie on the ground, and were dispossessed of mobile phones, jewelry, bank debit cards and money. The robbers jumped on a motorcycle and left. Later that same morning, his son received a call from his brother-in-law, who told him to pass a message to PW2 that he should go to Gowon Estate Police Station, as someone had called his brother-in-law to say that their mobile phones had been recovered.

He quickly left for the Station, where he identified the stolen phones and one of the robbers as the face he saw; the one with the long knife.

He went back with his wife but they were told that the case had been transferred to the State Headquarters. He further testified as follows- ‘’We drove there and met the officer in charge.

There they brought out the phones, the culprit and the knife that he raised on us. I identified my phone – a Samsung XJ 700. My wife identified 2 of hers, which were Nokia.

I cannot remember the particular type. We made our Statements and left. They released the phones to us, and we signed for them’’. PW3, Inspector Charles Onwuka with the Special Anti-Robbery Squad, who said that he was a member of the team that investigated the case.

To SARS form Gowon Estate Police Station with the original case file, the cutlass and the stolen telephones that had been recovered from him. PW4, Sergeant Famous Erin, also with Special Anti-Robbery Squad, who testified that PW2 and his wife, told him of how they were robbed of their valuables by the Appellant and the two other men still at large.

He also said that their mobile phones were released on bond to them. In his defence, the Appellant testified as DW2, and called one other witness, Mrs. Omowunmi Omolaye, as DW1.

Upon the close of trial, Counsel on both sides filed Written Addresses, which they adopted on 26/1/2012. The learned trial judge, L.A Okunnu, J delivered his judgment on 16/4/2012 wherein he concluded as follows- ‘’In the final analysis, I state thus, PW2, whilst testifying before the Court, never positively identified the Defendant, and never confirmed to the Court that he was the very same person that he had recognized and identified at the Police State.

The Defendant, however, was arrested a short time after the robbery incident, and within the same locality, with some of the stolen properties of the Nwachinemeres – all their mobile telephones. At best, the Defendant is guilty of receiving those stolen goods.

See, here, S.167 (a) of the Evidence Act. In the event, I hereby acquit the Defendant of the charge of armed robbery, and by necessity, of the charge of a conspiracy to commit the said armed robbery.

The Prosecution did not prove the commission of those two offences to the requisite standard in criminal proceedings. I however find him guilty of lesser offence 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, hereby convicted of the latter offence. This is the Judgment of the Court’’. The Appellant appealed to this Court with a Notice of Appeal containing three Grounds of Appeal.

He distilled two Issues for Determination. 1. Whether the Honouable trial Court was right in convicting the Appellant for the offence of receiving stolen property when there is no evidence before the Court to prove the offence beyond reasonable doubt. 2.

Whether or not in the circumstances of this case the terms of imprisonment to which the Appellant was sentenced are not excessive. The Respondent adopted the two Issues as formulated by the Appellant in its brief of Argument.

The Appellant submitted under Issue 1 that it is an elementary principle of law that a Court cannot rely in its Judgment on evidence not before it, citing Shekete vs. The Nigeria Air Force (2000) 15 NWLR (Pt. 692) 868, Kasimu Vs. NNPC (2008) 3 NWLR (Pt 1075) 569, and Ehirim vs. Imo State Independent Electoral Commission & Ors. (2012) LPELR-SC.139/2008.

He further argued that the stolen telephones and other items allegedly found in his possession, were never tendered or proved to exist, and the Prosecution failed to tender the said bond that could show beyond reasonable doubt that they existed and were released to the Complainants; that PW1, did not give any categorical or positive evidence that they were found in his possession, and the lower Court found that he carried out no real investigation;

That PW2’s evidence was not cogent, positive and reliable to establish that they were found in his possession as he did not witness his arrest and their recovery from him; that his testimony that it was phones stolen from him and his wife that the police showed him, did not prove they were in his possession at the time of his arrest; that if PW1 did not give any categorical, cogent, positive evidence that they were found in his possession, then the evidence of PW3 and PW4 that they were recovered from him will not stand, as the lower Court righty found that their evidence could not stand on their own but could only shore up PW1’s evidence that he was one of the men suspected of having robbed the complainants, and their belongings were stolen and nothing more; and that its findings and evidence of the witnesses cannot sustain his conviction in the absence of strong, credible, direct, cogent and positive evidence that there was stolen property, which ought to have tendered in evidence, and which were found in his possession at the time of his arrest, citing Omopupa vs. State (2007) LRELR-CA/IL/C.79/2006.

Furthermore, that before it could draw the presumption of receiving stolen property as the lower Court did, the evidence must be cogent, conclusive and positive as the Prosecution has a duty to tender the said stolen phones and/or tender the bond signed by Complainants; that mere oral evidence of witnesses who did not witness his arrest or recovery of the stolen item from him will not suffice as cogent, conclusive and positive evidence to prove that any property were recovered from him; that the lower Court found that the failure to tender the machete allegedly found with him seriously affected the Prosecution’s case of armed robbery against him, and so it was wrong to convict him of receiving stolen property allegedly recovered from him when they were never tendered along with the bound to prove that they were released to the Complainant; that it is trite that every ingredient of an offence must be established to that standard of proof so as to leave no reasonable doubt of the guilt of an accused, citing Aiguoreghian vs. The State (2004) 3 NWLR (Pt 860) 367.