IN THE COURT OF APPEAL OF NIGERIA
IN THE IBADAN JUDICIAL DIVISION
HOLDEN AT IBADAN
ON THURSDAY, THE 7TH DAY OF APRIL, 2022
BEFORE THEIR LORDSHIPS:
FOLASHADE AYODEJI OJO JUSTICE, COURT OF APPEAL
MUHAMMAD IBRAHIM SIRAJO JUSTICE, COURT OF APPEAL
ABBA BELLO MOHAMMED JUSTICE, COURT OF APPEAL
APPEAL NO: CA/IB/46C/2020
BETWEEN:
IKECHUKWU NJOKU ------------------------- APPELLANT
AND
THE STATE ------------------------------------ RESPONDENT
JUDGMENT
(DELIVERED BY MUHAMMAD IBRAHIM SIRAJO, JCA)
This appeal was lodged against the judgment of the High Court of Ogun State, Sagamu Judicial Division (the lower court) delivered on 28/11/2019 by Hon. Justice C.C. Ogunsanya, wherein the Appellant, as Defendant, was found guilty on a two count Information of Criminal Conspiracy to commit Armed Robbery and Armed Robbery contrary to sections 6 (b) and 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap R.11, Laws of the Federation of Nigeria, 2004. See pages 57 – 80 of the Record of Appeal.
The facts leading to this appeal can be summarized as follows: On 22/10/2012, while one Emmanuel Oladipupo Ojo who live at 10, Amubiola Street, Oke Aro, Ogun State, was driving his Toyota Sienna Bus with Registration No. LA IJR 859 AS at 5.30 AM on his street trying to approach the main road, the Appellant and two other persons riding on a Motorcycle crossed his vehicle. The Appellant came down from the Motorcycle and pointed a gun at him, asking him to pull over, and he obeyed. The Appellant and the other persons entered the car with the Appellant dragging the nominal complainant to the back seat while the others drove the vehicle. At the back seat the Appellant, with a gun pointed at the complainant’s head asked him to lie down at the floor of the vehicle with his head down, and he complied. The Appellant sat down with his legs resting on the back of his victim. The Appellant removed the victim’s clothing and tried to remove his boxers while dropping the gun on the chair. The victim picked the gun and attempted to break the rear windscreen of the car with it in order to attract attention. The gun fell in the car and there was struggle between them. The accomplice of the Appellant continued driving the vehicle. When the Appellant wanted to push the victim out of the car, the victim held onto him tightly and both of them fell from the moving vehicle into a ditch around a place called Chinese Bus stop after Lagos -Ibadan road long bridge. The person driving the car did not stop even though the Appellant called him to render help. The duo of the victim and the Appellant had a struggle in the ditch with the Appellant biting the victim on his chest and left ear while the victim was shouting that the Appellant was a thief. Passersby came to his rescue and stripped the Appellant naked. That was when the victim’s Blackberry phone was found in the pocket of the Appellant’s trouser. A Police patrol vehicle took them to Ibafon Police Station and from there they were taken to Ajuwon Police Station where they made statements, and finally to Eleweran Police Station. The vehicle, together with Laptop computer, tools bag, Nokia phone, ATM Card and a bag of clothing inside it, were not recovered. The Appellant and the person that drove the vehicle were not wearing mask. The two count Information preferred against the Appellant on 18/12/2015 at page 2 of the Record of Appeal, reads:
“COUNT 1:
STATEMENT OF OFFENCE
CONSPIRACY TO COMMIT ARMED ROBBERY, contrary to section 6 (b) and punishable under section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act, (Cap R.11), Laws of the Federation of Nigeria, 2004.
PARTICULARS OF OFFENCE
IKECHUKWU NJOKU (M) and others now at large on or about the 22nd of October, 2012 at No.10, Anubioye Street, Oke-Aro, via Akute, Ajuwon in the Ota Judicial Division conspired to commit a felony to wit: Armed Robbery.
COUNT II:
STATEMENT OF OFFENCE
ARMED ROBBERY, contrary to and punishable under section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap R.11, Laws of the Federation of Nigeria, 2004.
PARTICULARS OF OFFENCE
IKECHUKWU NJOKU (M) and others now at large on or about the 22nd of October, 2012 at No. 10 Anubioye Street, Oke-Aro,via Akute, Ajuwon in the Ota Judicial Division while armed with gun robbed Oladipupo Ojo of his Toyota Sienna Bus with Reg no: FST 856 AS, Apple Laptop, Blackberry phones and Nokia mobile phone.”
On arraignment, the Appellant pleaded not guilty to the Information. In proof of its case, the prosecution called a total of three witnesses and tendered exhibits marked A – F, with exhibits A, E and F being statements made by the Appellant to the Police. The Appellant testified for himself and did not call any other witness. At the conclusion of trial, the lower court found the Appellant guilty and sentenced him to death by hanging or by any other mode as may be directed by the Governor of Ogun State.
Dissatisfied by his conviction and sentence, the Appellant approached this court with a Notice of Appeal against the said decision, predicated on three grounds of appeal, pages 81 – 83 of the Record. The Notice of Appeal was filed on 23/01/2020. With the leave of court, the Appellant filed an Amended Notice of Appeal containing three grounds of appeal on 18/03/2020, and same was deemed properly filed and served on 25/01/2022.
As required by the Rules of this court, parties filed and exchanged written Briefs of Argument. The Appellant’s Brief of Argument, settled by Oluwatosin Ajose Popoola (Mrs.) was filed on 18/03/2020. Abimbola O. Akisanya (Mrs.), Chief State Counsel, Ministry of Justice, Ogun State, settled and filed the Respondent’s Brief of Argument on 20/09/2021 and same was deemed properly filed and served by an order of court made on 25/01/2022. The Appellant’s Reply Brief filed on 22/10/2021 was also deemed on 25/01/2022. In the Appellant’s Brief of Argument, a sole issue was crafted for determination in the following words:
“Considering the fact that the Respondent herein failed woefully to prove by credible evidence the particulars of the offences engraved on the face of Information filed by the Respondent, could it be said that the Respondent had proved the offences contained on the face of the Information against the Appellant beyond reasonable doubt, which will thereby preclude this eminent court from setting aside the conviction and sentence of death passed on the Appellant by the Trial Judge.”
The Respondent also presented before the court a single issue for determination, couched thus:
“Whether the Appellant had suffered a great loss in view of the discrepancy in the locus criminis, when the trial court relied on the evidence of PW1 when convicting the Appellant for the offences of conspiracy to commit Armed Robbery and Armed Robbery.”
There is a clear case of inelegance in the drafting of the issues for determination by the parties. Reading through the issues submitted by the parties, I am not in any doubt that each of the issues submitted by the parties arose from grounds 1 and 2 of the Notice of Appeal even though none of them made any reference to the said grounds. Having satisfied myself that the grounds of appeal and the issues formulated by the parties, borders on the question of proof, I reframe the issue for determination as follows:
Whether the lower court was right in holding that the prosecution has proved the
particulars and ingredients of the offences contained in the Information beyond reasonable doubt as to lead to the Appellant’s conviction and sentence.
Arguments
In the Appellant’s Brief, learned counsel for the Appellant submitted that the Respondent was duty bound not only to prove the ingredients of the offences charged but also the particulars contained on the face of the Information against the Appellant, citing Abidoye vs. F.R.N. (2013) LPELR-21899 (SC) @ 20-21. After a verbatim reproduction of the Information preferred against the Appellant in the Appellant Brief, counsel drew the court’s attention to note that the locus criminis given in the Information is No. 10, Anubioye Street, Oke-Aro, via Akute, Ajuwon, while the Registration No. of the Toyota Sienna Bus allegedly carted away is FST 856 AS. She submitted that the locus criminis and the vehicle Registration number given as particulars of the Information preferred against the Appellant are matters that must be proved beyond reasonable doubt alongside the ingredients of the offences as the particulars cannot be presumed, citing and relying on Ibrahim vs. The State (2015) 4 SCM 184 @ 208, where the Supreme Court held, inter alia; “…In a criminal trial, the locus criminis is a fact in issue and ought to be proved, along with other facts in issue, beyond reasonable doubt to secure a conviction…” Relying on the case of Oluyede vs Access Bank (2013) LPELR-20481 (CA), counsel noted that since vehicles in this country are identified majorly by their Registration numbers, the Respondent must prove by credible evidence the identity of the vehicle carted away, being a fact in issue, especially as the Respondent identified the Bus by its Registration number and made same one of the particulars of the offence on the face of the Information. Counsel proceeded to demonstrate how the Respondent has failed to prove beyond reasonable doubt the particulars stated on the face of the Information against the Appellant. Starting with the locus criminis, she stated that the Appellant was only called upon to answer for the allegation of Conspiracy and Armed Robbery that took place at No. 10, Anubioye Street, Oke-Aro, via Akute, Ajuwon on 22/10/2012, and no other place. Learned counsel submitted that the evidence led by the Respondent as regards the locus criminis was at variance with the particulars provided in the Information. The court’s attention was drawn to the testimonies of all the three witnesses that testified for the prosecution where they all stated the locus criminis to be diametrical to the one given in the Information against the Appellant. At page 18 lines 1-5 of the Record, PW1 stated that he lives at No. 10 Amubiola Street, Oke-Aro, Ogun State and that the offence was committed at his Street as he was “trying to approach the main road.” Learned counsel argued that the locus criminis contained on the Information and the address where PW1 lives are not the same and there is no evidence suggesting that the two places are one and the same. With respect to PW2, his evidence at page 31 lines 17-19, was that the incident took place at Lambe Oke-Aro at a junction. Appellant’s counsel submitted that Lambe Oke-Aro is not the locus criminis given on the face of the Information against the Appellant. It was contended that there is no iota of agreement between the locus criminis described on the face of the Information and the evidence of these witnesses, just as the respective evidence of PW1 and PW2 are at war with one another with regards to the locus criminis. That evidence was not adduced to show that Anubiola Street and Lambe Oke-Aro are one and the same, neither was evidence adduced to show that Anubiola and Lambe Oke-Aro are one and the same with No. 10 Anubioye Street, Oke-Aro, via Akute, Ajuwon, which is the given locus criminis. In continuation of his evidence, PW2 further said that he visited the scene of crime with his team members at Ajuwon junction, no longer at Lambe Oke-Aro as testified earlier by him. Mrs. Popoola submitted that these different pieces of evidence cannot be said to have established the locus criminis in this case beyond reasonable doubt as none of them agrees with the one named on the Information. She also drew the court’s attention to the evidence of PW3 who placed the scene of crime at Ifesowapo Junction Lange, page 38, lines 21-29 and page 39 lines 1-3 of the Record, and submitted that where contradictory evidence is adduced in proving a particular point, that point cannot be said to have been proved beyond reasonable doubt. It was her argument that the Respondent did not adduce any evidence to prove that the crimes charged were committed at No. 10, Anubioye Street, Oke-Aro, via Akute, Ajuwon. Learned counsel relied heavily on the cases of Ibrahim vs. State (supra) and Bello vs. C.O.P. Plateau State (2017) 5 SC (Pt.111) 117, where similar situation came up for determination by the Apex Court, as well as the cases of Patrick vs State (2018) ALL FWLR (Pt.948)1430 @ 1458-1459; Lekan Ajani vs. State (Unreported) Appeal No. CA/IB/233C/2015; Udoka Solomon vs. The State (Unreported) Appeal No. CA/IB/350C/2018, and urged the court to hold that the failure of the Respondent to prove the locus criminis is fatal to its case.
On exhibits A, E and F, which are statements made by the Appellant to the Police, Mrs. Popoola argued that these exhibits will only amount to confessional statements, if the Appellant admits to the commission of the offence charged. With reference to pages 3-4 of exhibit A contained at pages 9-10 of the Record and page 1 of exhibit E contained at page 13 of the Record, counsel demonstrated that the crime the Appellant purportedly admitted in these two exhibits were committed at Lambe area and Olambe area, areas distinct from the locus criminis stated on the face of the Information against the Appellant. She submitted that these exhibits along with exhibit F made pursuant to exhibit E, are not confessional statements in this case, as they did not confess to the commission of the offence(s) on the charge sheet, citing in support the case of Gbadamosi vs State (1992) 9 NWLR (Pt.266) 465 @ 478-479. That since the confessional statements in exhibits A and E relate to offence not charged in this case, as their contents are at variance with the Information, the court should discountenance them, relying on Patrick vs. State (supra). Counsel contended that the issue here is not whether the Appellant did commit the offence which he confessed to, rather, the issue is, whether he did commit the offence he was charged for. Counsel referred again to the case of Lekan Ajani vs The State (supra) where the accused person confessed to committing series of robbery in a place other than the place where he was charged to have committed the robbery in question. The court was urged to hold that the said exhibits A and E do not amount to confession of the crime charged on the Information.
On the Registration number of the Toyota Sienna Bus that was carted away, given as one of the particulars of count two, learned counsel noted that the number given by PW1 in his testimony at page 18, lines 2-5 of the Record, i.e., LA IJR 859 AS is at variance with the number given on the face of the Information, which is: FST 856 AS. It was argued that the evidence does not support the charge as the two vehicles are not the same. The court was urged to resolve the doubt created by the discrepancy in the particulars of the charge and the evidence led in favour of the Appellant by allowing the appeal and discharging and acquitting him, citing the dictum of Obaseki, JSC in Saidu vs State (1982) LPELR-2977 (SC).
On her part, learned Chief State Counsel conceded in the Respondent’s Brief that the locus criminis is a fact in issue and ought to be proved along with other facts in issue, beyond reasonable doubt in order to secure a conviction. She admitted that the issue of locus criminis is a major contradiction in the case of the prosecution, but submitted that what is material is the effect of the misnomer of locus criminis on the Appellant concerning the charge against him. Learned Chief State counsel argued that even though the address of the locus criminis on the Information differs from what the prosecution witnesses provided in their testimonies, the position cannot vitiate the case of the prosecution since all the prosecution witnesses have agreed to the fact that the crime was committed at No. 10, Anubiola Street, Oke-Aro, Ogun State. It was contended that the evidence of PW1 is direct, cogent, credible to the fact that the crime was committed at No. 10, Anubiola Street, Oke Aro as against the locus criminis inserted in the charge sheet, and that there is no inkling that the Appellant was misled by the error as to the locus criminis. She submitted that the Appellant had sufficient knowledge of the charge and understood it clearly, hence the defence of alibi raised by him during his testimony. The court was urged to take judicial notice that both No. 10, Anubiola Street, Oke Aro, Lambe, Ogun State and No. 10, Anubioye Street, Oke Aro, via Akute, Ajuwon, Ogun State, are the same place, the difference being only in nomenclature based on clan or administrative usage, citing Adamu Yakubu vs. The State (2018) LPELR-45044 (CA). She urged the court to discountenance the contention of the Appellant that he suffered great loss or miscarriage of justice in view of the discrepancy in the locus criminis. Learned counsel noted that the duty of the prosecution in a criminal trial is to prove its case beyond reasonable doubt not beyond all shadow of doubt – Abirifon vs State (2013) 9 SCM 1 @ 5; Otti vs. State (1991) 8 NWLR (Pt.207) 103 @ 118. Referring to the case of Osuagwu vs The State (2013) LPELR-19823 (SC), where the ingredients of the offence of Armed Robbery were stated by Rhodes-Vivour, JSC, counsel submitted that through the evidence of PW1, the victim of the robbery, the Respondent has been able to establish beyond reasonable doubt that there was a robbery by the Appellant and others on 22/10/2012 during which the Appellant was armed with a gun, thereby satisfying the first two ingredients of the offence. It was the further submission of counsel that from the evidence of PW1 at pages 17 – 20 of the Record, together with exhibits A and E wherein the Appellant placed himself at the scene of crime, the identity of the Appellant as a participant in the crime has been clearly established beyond reasonable doubt in view of the direct struggle the Appellant had with PW1 from inside the vehicle up to the time they fell into the canal around 7.00am, where the struggle continued for about 40 minutes before passersby came to the rescue of PW1. With this evidence on Record, counsel submitted that the necessity for conducting identification parade is obviated, placing reliance on Isah vs. The State (2017) LPELR-43472 (SC); Adebayo vs. The State (2014) 8 SCM 34 @ 55; Omopupa vs. The State (2007) LPELR-8571 (CA). We were urged to hold that the 3rd ingredient of the offence of Armed Robbery has been proved by the Respondent beyond reasonable doubt and not to disturb the finding of the lower court.
Learned counsel argued, with the aid of section 167 (a) of the Evidence act, 2011 and the cases of Ehimiyein vs. The State (2016) LPELR-40841 (SC); Ewugba vs. The State (2017) LPELR-43833 (SC); Sadiku vs. The State (2013) 12 SCM 146 @ 153; Adesina vs. The State (2012)6 SCM 82, that the doctrine of recent possession has caught up with the Appellant who was found in possession of the Blackberry phone belonging to PW1 soon after the robbery, especially that the evidence of PW1 in that regard was neither challenged nor contradicted during cross examination. The court was urged to affirm the conviction of the Appellant even on his confessional statements alone, one of which was admitted after trial within trial (Exhibit A), and the others without objection (Exhibits E and F), as the trial court has determined their veracity before convicting the Appellant, citing Akpa vs. State (2008) 8 SCM 68 @ 70; Oseni vs. State (2012) 4 SCM 150 @ 153; Ogudu vs. The State (2011) 11-12 (Pt.1) SCM 209 @ 212; Lasisi vs. The State (2013) 6 SCM 97 @ 113.
On the offence of Conspiracy, learned Chief State Counsel contended that from a careful perusal of exhibits A, E and F, conspiracy can be inferred as the exhibits have shown that there was a meeting of the minds of the Appellant and some others now at large. She urged the court to dismiss the appeal and affirm the decision of the lower court.
By way of Reply Brief, Appellant’s counsel submitted that the Appellant’s contention is not one of mere discrepancy, but that the particulars shown of the face of the Information with respect to locus criminis was not proved. She submitted that the case of Adamu Yakubu vs. The State (supra) relied upon by the Respondent is not applicable here in view of the clear pronouncements of the Apex Court in the cases cited in the Appellant’s Brief. It was further argued that the said case of Adamu Yakubu, a decision of this court decided in 2018 must, on the doctrine of stare decisis, give way to the most recent decision of this Division of the court in Udoka Solomon vs. The State (supra). On the Respondent’s argument on the doctrine of recent possession, learned counsel contended that the doctrine will not apply here because the prosecution at the trial court led evidence that is at variance with the charge, and until that issue is resolved, the doctrine of recent possession cannot apply. Counsel argued that failure to state the correct locus criminis has displaced the applicability of the doctrine of recent possession. Concerning the Respondent’s submission on the confessional statements of the Appellant, the Reply by the Appellant’s counsel amounts to rearguing the point and there is no need for me to recap here.
Resolution of the sole issue
I will start by reproducing the issue formulated by me for the resolution of this appeal:
Whether the lower court was right in holding that the prosecution has proved the particulars and ingredients of the offences contained in the Information beyond reasonable doubt as to lead to the Appellant’s conviction and sentence.
The Appellant was convicted for the offences of Conspiracy to commit Armed Robbery and Armed Robbery. He was sentenced to death. His contention in this appeal is that the lower court was wrong in convicting and sentencing him to death, when the prosecution has not been able to prove beyond reasonable doubt the particulars of the offences as engraved on the face of the Information preferred against him. I have already summarized the facts leading to the filing of the Information and the conviction and sentence of the Appellant at the commencement of this judgment.
Because of the constitutional presumption of innocence enjoyed by every person accused of the commission of crime, it has become the bounden duty and responsibility of the prosecution, in all criminal trials, to prove the guilt of the defendant (the person accused) beyond reasonable doubt in order to secure a conviction. See Shehu vs. The State (2010) LPELR-3041 (SC); Oseni vs. The State (2012) LPELR-7833 (SC); People of Lagos State vs. Umaru (2014) LPELR-22466 (SC); Obidike vs. The State (2014) LPELR-22590 (SC); Adegbite vs. The State (2017) LPELR-42585 (SC); The State vs. Yahaya (2019) LPELR-47611(SC). This position of the law enjoys statutory backing in section 135 (1) of the Evidence Act, 2011, which provides:
“If the commission of a crime by a party to any proceeding is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable.”
The law is that proof beyond reasonable doubt would only be achieved when all the ingredients of the offence(s) charged are proved or established. See Ajiboye vs. F.R.N. (2018) LPELR-44468 (SC); Tobi vs. The State (2019) LPELR-46537 (SC). The prosecution can establish the guilt of a defendant through one or a combination of any of the three established methods of proof in criminal cases, i.e., (a) By testimonies of eye witness or witnesses who watched, heard or witnessed the commission of the crime by the defendant(s) or person(s) accused. (b) Through confessional statement voluntarily made by the defendant(s) or person(s) accused. (c) Through circumstantial evidence which clearly points to the sole fact that the defendant(s) or person(s) accused and no other person committed the offence charged. See Olaoye vs. The State (2018) LPELR-43601 (SC); Anyasodor vs. The State (2018) LPELR-43720 (SC).
At this juncture, it is apposite to consider the originating process in the case leading to this appeal, that is to say, the charge or Information upon which the Appellant was arraigned, tried, convicted and sentenced, vis-a-vis the method of proof employed by the Respondent before the lower court. It will not be out of place to reproduce the charge here again:
“COUNT 1:
STATEMENT OF OFFENCE
CONSPIRACY TO COMMIT ARMED ROBBERY, contrary to section 6 (b) and punishable under section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act, (Cap R.11), Laws of the Federation of Nigeria, 2004.
PARTICULARS OF OFFENCE
IKECHUKWU NJOKU (M) and others now at large on or about the 22nd of October, 2012 at No.10, Anubioye Street, Oke-Aro, via Akute, Ajuwon in the Ota Judicial Division conspired to commit a felony to wit: Armed Robbery.
COUNT II:
STATEMENT OF OFFENCE
ARMED ROBBERY, contrary to and punishable under section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap R.11, Laws of the Federation of Nigeria, 2004.
PARTICULARS OF OFFENCE
IKECHUKWU NJOKU (M) and others now at large on or about the 22nd of October, 2012 at No. 10 Anubioye Street, Oke-Aro,via Akute, Ajuwon in the Ota Judicial Division while armed with gun robbed Oladipupo Ojo of his Toyota Sienna Bus with Reg no: FST 856 AS, Apple Laptop, Blackberry phones and Nokia mobile phone.”
In the particulars of the offence in both the first and second counts, the Appellant was alleged to have committed the offences charged therein on 22/10/2012. The scene of crime, expressed in Latin as locus criminis, was stated to be No. !0, Anubioye Street, Oke-Aro, via Akute, Ajuwon in the Otta Judicial Division. In the particulars of the offence contained in Count II, the Registration number of the Toyota Sienna Bus robbed from Oladipupo Ojo (PW1) was stated to be or given as FST 856 AS. These are the particulars of the two count Information to which the Appellant pleaded not guilty, leading to the commencement of trial.
Now, the law is trite that every charge to which an accused person or a defendant is called upon to answer must be certain, unambiguous and must state the following:
See Elias vs. F.R.N. & Anor (2016) LPELR-40797 (CA).
The whole essence of a charge in a criminal trial is to give the accused person/defendant good and sufficient notice of the totality of the allegation(s) against him to enable him prepare for his defence. See Ifeanyi vs. F.R.N. (2018) 1 NWLR (Pt.1632) 164 SC; Odeh vs. F.R.N. (2008) 13 NWLR (Pt.1103) 1 SC.
In proof of the two-count charge contained in the Information preferred against the Appellant, the Respondent called three witnesses, the nominal complainant and two Police Officers, and also tendered two statements made by the Appellant, which are confessional in nature, together with his additional statement. On the basis of the evidence of the three witnesses and the confessional statements of the Appellant, the lower court found the Appellant guilty of the two-count charge. The Appellant picked hole with his conviction with regards to prove of the following particulars of the charge:
I will deal with the Appellant’s concern, listed above, seriatim.
It was submitted for the Appellant that the scene of the offence (locus criminis) as testified to by all the three prosecution witnesses are totally at variance with the locus criminis given in the particulars of offence contained in the Information. Counsel argued that while the locus criminis stated in the Information is No. 10, Anubioye Street, Oke-Aro, via Akute, Ajuwon, PW1 testified that the offence was committed at No. 10, Anubiola Street, Oke Aro, Ogun State. PW2 on the other hand, said the crime was committed at Lambe Oke-Aro. PW2 further testified that he visited the scene of crime at Ajuwon junction. According to the Appellant’s counsel, PW3 at page 38 of the Record gave his own locus criminis as Ifesowapo Junction, Lange under Akute. It was contended that none of the different locus criminis stated by the prosecution witnesses matches the locus criminis in the particulars of the charge the Appellant was called upon to answer and therefore the locus criminis was not proved. On the part of the Respondent’s counsel, while admitting that the locus criminis is a fact in issue, she submitted that the discrepancy in the evidence of the prosecution witnesses is a matter of nomenclature in administrative and clannish usage and that the court should take judicial notice of the fact that all the names of the places used by the witnesses are the same with the locus criminis given in the particulars of the offences charged, relying on the decision of this court in the case of Adamu Yakubu vs. The State (supra). The law is that among the requirements of a charge is that it must contain particulars of the date and place the offence was allegedly committed. It is also the law, as conceded to by the Respondent in its Brief, that in a criminal trial the locus criminis is a fact in issue that must be proved. The question now is whether the locus criminis given or stated in the particulars of offence was proved during trial. The locus criminis given by all the three prosecution witnesses in their respective evidence before the lower court are distinct and at variance with the one stated in the particulars of offence in support of the Information. For example, No. 10 Anubiola Street, Oke-Aro, Ogun State, stated by PW1 to be the locus criminis, is not the same as No. 10, Anubioye Street, Oke-Aro, via Akute, Ajuwon, as stated on the particulars of the charge. No evidence was led to show that they are one and the same place. This court cannot speculate that the two places are the same, as speculation is outside the realm of the law. See Martins vs. The State (2019) LPELR-48889 (SC); Addo vs. The State (2020) LPELR-55521(SC). Again, Lambe Oke-Aro and Ajuwon Junction, two distinct names of the locus criminis as testified to by PW2 are not the same with No. 10, Anubioye Street, Oke-Aro, via Akute, Ajuwon being the scene of crime given on the face of the Information. The prosecution did not make any attempt either through PW2 or any other witness to explain the discrepancy in the two names of the locus criminis given by PW2 and whether or not the two names are one and the same thing or place with the scene of crime stated on the face of the Information as constituent of the particulars of the offences charged. Further to the foregoing, PW3 gave evidence of the locus criminis as Ifesowapo Junction Lange, contrary to the locus criminis not only as engraved on the charge but as separately and variously stated by PW1 and PW2 in their respective testimonies. The prosecution witnesses have themselves failed to agree on the locus criminis. The testimonies of the prosecution witnesses on the scene of crime are violently in conflict with themselves. This is one of the distinguishing features of this case from the case of Adamu Yakubu vs. The State (supra), where all the prosecution witnesses are agreed that the scene of crime was Ejika-Adagu and not Nugazi Nwete as contained in the charge. The situation here is more than a discrepancy, rather, it is a contradiction and a conflict. Throughout the proceedings at the lower court, no attempt was made by the prosecution to explain away the variation or the distinction in the places named by the witnesses as the locus criminis or to show that they all meant one and the same place as the locus criminis stated on the charge. There was also no attempt by the prosecution to amend the particulars of the Information in line with the evidence on Record. See Ibrahim vs. The State (2015) LPELR-40833 (SC). Being a fact in issue, the locus criminis in this case must be proved with certainty. The evidence before the lower court has not achieved that feat. The locus criminis has not been proved beyond reasonable doubt by the prosecution, and I so hold. In so holding, I am fortified by the decision of the Supreme Court in the case of Ibrahim vs. The State (supra). In that case, the Appellant was charged for Robbery at a Petrol Station in Ibadan. None of the witnesses called by the prosecution named the Petrol Station as the locus criminis. In resolving the appeal, the court, per Ngwuta, JSC, held:
“Section 258 of the Evidence Act defines fact in issue or principal fact. In a criminal trial, the locus criminis is a fact in issue and ought to be proved, along with other facts in issue, beyond reasonable doubt to secure a conviction.”
His lordship proceeded to castigate the prosecution for deliberately scuttling his case and letting the Appellant off the hook. In the said case, Rhodes-Vivour, JSC, emphasized the need for locus criminis to be stated in a criminal charge with sufficient precision. See also Bello vs. C.O.P. Plateau State (2017) 5 SC (Pt.111) 117. In the case of Solomon vs. The State (2019) LPELR-49434 (CA), this court, per Ojo, JCA, had this to say at pages 28-29 of the E-Report, when confronted with a similar case of identity of locus criminis in a criminal charge:
“It is evident from the charge that the scene of crime is stated to be Alagbole Ogunlowo Street, Iju, Ajuwon. The evidence of PW1 that the scene of crime is 57, Ayawoele Road, Iju Ajuwon is clearly at variance with that in the charge. PW2’s evidence is that she lives at 47, Ayawoele Street before now Alagbole Ogunlowo Road, Iju Ajuwon. This evidence of PW2 as reflected on the record is capable of two meanings. That she lives at 47, Ayawoele Street but now lives at Alagbole/Ogunlowo Road, Iju Ajuwon or that 47, Ayawoele Street was formerly known as Alagbole/Ogunlowo, Road, Iju Ajuwon. In my view the address of locus criminis given by PW2 gives room for speculation. The law is settled that the place where the offence was committed must be stated with precision in the charge. Where the name of the locus criminis has changed, the prosecution is at liberty to amend the charge to which the accused is called upon again to plead. There must not be room for any doubt as to the scene of crime.” (Underlining, mine).
In the case at hand, a reasonable doubt has been created by the evidence of the prosecution witnesses with respect to the locus criminis, and the lower court ought to have resolved that doubt in favour of the Appellant. See Bello vs. C.O.P., Plateau State (supra).
Another grouse of the Appellant is the lower court’s acceptance and reliance on exhibits A, E and F, the Appellant’s confessional statements, to convict him. It was contended for the Appellant that exhibits A, E and F, which are statements allegedly made by him to the Police, will only amount to confessional statements, if the Appellant admits to the commission of the offence as charged. With reference to the evidence of PW2, it was argued that the crime the Appellant purportedly admitted in these two exhibits were allegedly committed at Lambe area and/or Olambe area, areas distinct from the locus criminis stated on the face of the Information against the Appellant, and therefore do not amount to confessional statements in this case. The said exhibits, according to the Appellant’s counsel, do not confess to the commission of the offence(s) charged, rather, they relate to offence(s) not charged in this case, as their contents are at variance with the particulars of the charge contained in the Information. Counsel contended that the issue here is not whether the Appellant did commit the offence which he confessed to, rather, the issue is, whether he did commit the offence he was charged for. Counsel referred again to the case of Lekan Ajani vs. The State (supra) where the accused person confessed to committing series of robbery in a place other than the place where he was charged to have committed the robbery. The court was urged to hold that the said exhibits A and E do not amount to confession of the crime charged on the Information.
I have taken a careful study of exhibits A, E, and F. My finding reveals that they are indeed confessional statements. In exhibits A and E, the Appellant had confessed to the commission of previous robberies and another one on 22/10/2022 at Lambe area towards Akute/Olambe area, Ogun State. See pages 9 and 13 of the Record of Appeal. The offences charged were said to have taken place at No. 10, Anubioye Street, Oke-Aro, via Akute, Ajuwon and not at Lambe area towards Akute/Olambe area, Ogun State, as stated in exhibits A and E. Therefore, exhibits A and E cannot be said to be confessional statements in the present charge, subject matter of this appeal, in view of the variation and discrepancy in the locus criminis coupled with the inability of the prosecution to clear the ambiguity during trial or amend the charge, as the case may be.
The Registration number of the vehicle allegedly robbed from PW1 by the Appellant and others now at large is another area that the Appellant hinged his attack on the judgment of the lower court. Learned counsel for the Appellant noted that the Registration number of the robbed Toyota Sienna Bus given by PW1 in his testimony at page 18, lines 2 - 5 of the Record as LA IJR 859 AS is at variance with the Registration number given on the face of the Information, which is: FST 856 AS. It was argued that the evidence on Record does not support the charge as the two vehicles are not the same. The court was urged to resolve the doubt created by the discrepancy in the particulars of the charge with respect to the Registration number of the vehicle in favour of the Appellant. Learned Chief State Counsel for the Respondent, either due to inadvertence or lack of what to say or due to tacit admission of the obvious, did not, in the Respondent’s Brief of Argument, respond to this attack.
Looking at the charge sheet or Information preferred against the Appellant at page 2 of the Record, the Registration number of the Toyota Sienna Bus snatched away from PW1 at gun point was given as FST 856 AS. In the cause of his evidence before the lower court, at page 18 of the Record, PW1 gave the Registration number of the vehicle snatched from him as LA IJR 859 AS. It is clear as crystal that the evidence of PW1 did not support the particulars given in count II of the charge concerning the vehicle that was robbed, rather, it contradicted the particulars given in the Information. Out of curiosity, I took another excursion into the testimonies of PW2 and PW3 with a view to discovering which of the two contradictory vehicle registration numbers was referred to by them. My findings? None of them referred to the number of the robbed vehicle. The effect of this contradiction in the Registration number of the vehicle is that the allegation that PW1 was robbed of a Toyota Sienna Bus at gun point has not been proved or established beyond reasonable doubt. I dare say, not even on the preponderance of evidence, which is not the case in a criminal trial.
The cumulative effect of all the discrepancies/contradictions in the evidence adduced by the Respondent during trial, vis-à-vis the particulars of the offences stated on the face of the Information, is that the particulars of the two-count charge against the Appellant have not been proved beyond reasonable doubt. As a matter of fact, not only did the evidence led failed to prove the charges, the evidence actually derogated from two important particulars in the Information, the locus criminis and the Registration number of the vehicle that was allegedly robbed.
Let me observe that the glaring discrepancies in the particulars of the offences embedded on the face of the Information against the Appellant and the evidence adduced in proof are, in my candid view, more than just mere inadvertence or mistake. If it was inadvertence, the prosecution would have taken step to amend the charge to align with the evidence on Record or adduce cogent and credible evidence to explain the discrepancy concerning the locus criminis. That step was not taken. How about the violent contradiction in the Registration number of the vehicle snatched at gun point from PW1? Interestingly, the particulars of the vehicle were not tendered in evidence to assist in determining which of the given numbers is the correct one. At least that would have enabled the court to ascertain who, between the prosecution and PW1, was responsible for this unpardonable blunder. I think strongly, as did Ngwuta, JSC, in Ibrahim vs. The State (supra), that this pit of inconsistencies, discrepancies and contradictions was dug by the prosecution with a view to scuttling its own case and letting the Appellant off the hook. I pray I am wrong.
The net result of all my analysis of the evidence and findings made therefrom is that the lower court was wrong in convicting and sentencing the Appellant for the offences of Conspiracy to commit Armed Robbery and Armed Robbery on the basis of evidence that failed to prove beyond reasonable doubt the particulars of the offences as engraved on the Information preferred against the Appellant. I set aside the conviction and sentence of the Appellant. In their place, I enter a verdict of discharge and acquittal.
MUHAMMAD IBRAHIM SIRAJO
JUSTICE, COURT OF APPEAL
APPEARANCES:
1. O. A. Popoola for the Appellant.
2. B. A. Adebayo, DPP, Ogun State, with O.A. Sonoiki, ADPP and
A. O. Akapo, PSC, for the Respondent.
CA/IB/46C/2020 M.I. SIRAJO, JCA | PAGE OF |
