(2016) LPELR-40260(CA)

Transcription

1 LIMAN v. STATE CITATION: In the Court of Appeal In the Kaduna Judicial Division Holden at Kaduna ON FRIDAY, 26TH FEBRUARY, 2016 Suit No: CA/K/266/C/2009 HABEEB ADEWALE OLUMUYIWA ABIRU Before Their Lordships: OLUDOTUN ADEBOLA ADEFOPE-OKOJIE AMINA AUDI WAMBAI MANNIR LIMAN (ALIAS MANGWASO) Between And THE STATE - Respondent(s) RATIO DECIDENDI Justice, Court of Appeal Justice, Court of Appeal Justice, Court of Appeal - Appellant(s)

2 1 APPEAL - FORMULATION OF ISSUE(S) FOR DETERMINATION: Whether an issue must be formulated for each ground of appeal "It is trite that issues for determination in an appeal are not synonymous with the grounds of appeal and should not be formulated to coincide with the number of grounds of appeal. Grounds of appeal allege the complaints of errors of law and fact or mixed law and fact against the judgment on appeal while issues for determination are short questions raised from one or more grounds of appeal and are meant to guide the arguments or submissions to be advanced in support of the said grounds of appeal. Hence, the Courts have stated that it is undesirable to formulate an issue in respect of each ground of appeal - Buraimoh Vs Bamgbose (1989) 3 NWLR (Pt.109) 352, Anie Vs Uzorka (1,993) 8 NWLR (Pt.309) 1, G. Chitex Industries Ltd Vs Oceanic Bank International (Nig) Ltd (2005) 14 NWLR (Pt.945) 392 and Akpan Vs Udoh (2008) 3 NWLR (Pt 1075) 590."Per ABIRU, J.C.A. (Pp. 4-5, Paras. C-A) - read in context 2 APPEAL - ISSUE(S) FOR DETERMINATION: Purpose of issues for determination "The purpose of issues for determination is to enable the parties narrow the issues in the grounds of appeal filed. An issue for determination is simply a combination of facts and circumstances including the law applicable thereto which when decided one way or the other by the Court affects the fate of the appeal - Ali Vs Osakwe (2011) 7 NWLR (Pt.1245) 68, Nadabo Vs Dabai (2011) 7 NWLR (Pt.1245) 155, Daniel Tayar Transport Enterprises Nigeria Company Ltd Vs Busari (2011) 8 NWLR (Pt.1249) 387. It is a point which is so critical that if it is decided in favour of a party, such a party is entitled to win the appeal - Okoye Vs Nigerian Construction and Furniture Co Ltd (1991) 6 NWLR (Pt.199) 501 and G. Chitex Industries Ltd Vs Oceanic Bank International (Nig) Ltd (2005) 14 NWLR (Pt.945) 392."Per ABIRU, J.C.A. (P. 5, Paras. A-E) - read in context

3 3 EVIDENCE - BURDEN OF PROOF/STANDARD OF PROOF: On whom lies the burden of proof in criminal cases and on what standard "It is settled in our jurisprudence that the burden of proving that any person has committed a crime or a wrongful act rests on the person who asserts it and this is, more often than not, the prosecution. By virtue of Section 138 (1) of the Evidence Act, where the commission of crime by a party is in issue in any proceedings be it civil or criminal, it must be proved beyond reasonable doubt. In discharging the burden, the essential ingredients of the crime alleged must be proved beyond reasonable doubt. The burden never shifts. Therefore, if in a criminal trial, on the whole of the evidence before it, the Court is left in a state of doubt, the prosecution would have failed to discharge the burden of proof which the law lays upon it and the defendant will be entitled to an acquittal."per ABIRU, J.C.A. (Pp , Paras. D-B) - read in context 4 EVIDENCE - PROOF BEYOND REASONABLE DOUBT: Whether proof beyond reasonable doubt means proof beyond all shadow of doubt "It must be stated that proof beyond reasonable doubt is "not proof to the hilt" and is thus not synonymous with proof beyond all iota of doubt and this is because the law will fail to protect the community if it admits fanciful possibilities to deflect the course of justice â??uzoka Vs Federal Republic of Nigeria (2010) 2 NWLR (Pt.1177) 118, Jua Vs State (2010) 4 NWLR (Pt.1184) 217, Ike Vs State (2010) 5 NWLR (Pt.1186) 41 and Gabriel Vs State (2010) 6 NWLR (Pt.1190) 280."Per ABIRU, J.C.A. (P. 12, Paras. B-D) - read in context

4 5 CRIMINAL LAW AND PROCEDURE - ELEMENT OF AN OFFENCE: Position of law as regards actus reus and mens rea "It is also trite that criminal responsibility for the commission of a crime is premised on the satisfactory proof of the two pillars of actus reus and mens rea, the doing of the act that constitutes the offence and the requisite mental capacity and the duty is always on the prosecution to prove the commission of a crime by proving the act done and the requisite guilty mind of the accused person beyond reasonable doubt. In other words, in a criminal trial, before an accused person is asked to undergo any sort of sentence, there must be a finding by the trial Court on the concurrence of the two main elements of any crime; that is, the actus reus and the mens rea. Actus reus is taken to be the wrongful deed that comprises the physical components of a crime and that generally must be coupled with mens rea. Mens rea is the criminal intent or guilty mind of the accused. For the prosecution to establish a criminal act against an accused person, it must go beyond establishing the commission of the unlawful criminal act by the accused and establish that the accused had the correct legal criminal mind of committing the act. The two must coexist, whether explicitly or by necessary implication - Njoku Vs State (2013) 2 NWLR (Pt 1339) 548."Per ABIRU, J.C.A. (Pp , Paras. E-D) - read in context 6 WORDS AND PHRASES - "INTENTION": Meaning of "intention" "In Nwokearu Vs State (2013) 16 NWLR (Pt 1380) 207, the Supreme Court, while discussing the concept of guilty mind in committing a crime, defined intention as: "... the purpose or design with which an act is performed. It is the foreknowledge of the act coupled with the desire to do the act. The foreknowledge and desire form the cause of the act, in so far as they fulfill themselves through the operation of the will. An act is intentional if, and in so far as it exists in idea before it exists in the realm of facts; the idea realizing itself in the fact because of the desire by which it is accompanied."per ABIRU, J.C.A. (Pp , Paras. E-A) - read in context

5 7 CRIMINAL LAW AND PROCEDURE - ATTEMPT TO COMMIT AN OFFENCE: How to prove offence of attempted armed robbery "The offence against the Appellant is attempted armed robbery brought pursuant to Section 2 (1) of the Robbery and Firearms (Special Provisions) Act. The section reads that any person who, with intent to steal anything, assaults any other person and at or immediately after the time of assault, uses or threatens to use actual violence to any other person or any property in order to obtain the thing intended to be stolen shall upon conviction under this Act be sentenced to imprisonment for not less that fourteen years and not more than twenty years. To sustain a charge of attempted robbery, the prosecution must prove the acts perpetuated by the accused person which must be so proximate and closely connected to the robbery, something more than mere preparation for the commission of the robbery, that were he not somehow interrupted, would have resulted in the commission of the robbery - Ozigbo Vs Commissioner of Police (1976) 2 SC 67, Ibrahim Vs State (1995) 3 NWLR (Pt.381) 35, Jegede Vs State (2001) 14 NWLR (Pt 733) 264, Shurumo Vs State (2011) All FWLR (Pt 568) 864. Additionally, the prosecution must prove that the steps taken by the accused had reached the point when they indicate beyond reasonable doubt that the end to which they were directed was robbery. The prosecution must prove the mental ingredients to commit the offence of robbery, i.e. an intention to rob, steal or remove property - Etim Vs State Q013) LPELR- CA/OW/223/2010."Per ABIRU, J.C.A. (Pp , Paras. D-E) - read in context

6 8 EVIDENCE - PROOF BEYOND REASONABLE DOUBT: What proof beyond reasonable doubt connotes "Now, it is elementary that the evaluation of evidence in a civil matter differs from evaluation of evidence in a criminal matter because the burden of proof in a civil matter is discharged on a balance of probabilities or preponderance of evidence, whilst in a criminal matter it is by proof beyond reasonable doubt. The phrase proof beyond reasonable doubt means proof that has attained that level of certainty, credibility and assuredness which leaves the Court without any vestige of lingering doubts regarding the culpability or otherwise of the accused person and with regards to the particular offence with which he has been charged - Afolalu Vs State (2010) 16 NWLR (Pt.1220) 584. It means proof of an offence with the certainty of the Criminal Law, i.e. that the offence in question has been committed and that no other person but the accused person on the evidence committed the offence. Where the evidence conclusively establishes these facts, the offence is said to have been proved beyond reasonable doubt - Edwin Vs State (2014) LPELR- CA/AK/256/2013. In State Vs Gwangwan (2015) 13 NWLR (Pt.1477) 600, the Supreme Court stated that proof beyond reasonable doubt in the realm of criminal justice connotes such proof as precludes every reasonable hypothesis, except that which it tends to support and it is proof which is wholly consistent with the guilt of the accused person and inconsistent with any other natural conclusions."per ABIRU, J.C.A. (Pp , Paras. F-A) - read in context 9 CRIMINAL LAW AND PROCEDURE - ALLEGATION OF CRIME: Distinction between allegation of crime and investigation of crime "There is a wide difference between allegation of crime and investigation of crime - Dodo Vs Economic and Financial Crimes Commission (2013) 1 NWLR (Pt.1336) 468, Ajayi Vs State (2013) 9 NWLR (Pt.1360) 589. Allegation is the making of the complaint of commission of a crime, with its details, while investigation is the process of undertaking a careful search, study, close inquiry, scrutiny, detailed examination of the allegation to ascertain the true facts of the crime - Dangabar Vs Federal Republic of Nigeria (2014) 12 NWLR (Pt.1422) 575. Once criminal allegations are made against a citizen, it is a constitutional and statutory duty of the police to investigate it - Onah Vs Okenwa (2010) 7 NWLR (Pt 1194) 512."Per ABIRU, J.C.A. (Pp , Paras. E-C) - read in context

7 10 EVIDENCE - SUSPICION: Whether suspicion can amount to proof of crime "It is rudimentary that an allegation of crime against a person only raises mere circumstances of suspicion against that person and suspicion does not amount to legal proof of the commission of a crime. This point has been made over and over by the Courts - see, for example, Abeke Vs The State (1,975) 9-11 SC (Reprint) 60, Bozin Vs State (1985) 2 NWLR (Pt.8) 465, Babalola Vs State (1989) 4 NWLR (Pt 115) 264, Obiakor Vs State (2002) 10 NWLR (Pt.776) 612, Abacha Vs The State (2002) 11 NWLR (Pt.779) 437, Dung Vs State (2015) 9 NWLR (Pt.1465) 503. In Adeniyi v. Governing Council of Yaba College of Technology (1993) 6 NWLR (Pt 300) 426, Karibi-Whyte, JSC stated that??suspicion, however strong, cannot support a conducive inference of guilt. It is still a wavering accusing finger of suspicious, guilt can only be accepted when the wavering finger stops wavering and stands stringent and erect pointing unwavering at the accused.while an allegation of crime commence the wavering of an accusing finger at an accused person, it is the investigation of the allegation and the ascertainment of facts establishing that the crime was indeed committed and that it was the accused person that committed that crime that makes the wavering finger stand "stringent and erect pointing unwavering at the accused. Failure to investigate or an improper investigation of an allegation of crime has been known to be an infamous albatross to the criminal prosecution of the crime - Al-Mustapha Vs State (2013) 17 NWLR (Pt.1383) 350."Per ABIRU, J.C.A. (Pp , Paras. D-F) - read in context 11 COURT - DUTY OF COURT: Duty of trial Court to be circumspect in criminal trials "The need for trial Courts to be very circumspect in criminal trials and to exercise great care in convicting an accused person is one of the main signposts of our criminal jurisprudence and it is captured in the aphorism that it is better for ten guilty people to be set free than for one innocent person to be convicted - Odogwu Vs State (2013) 14 NWLR (Pt.1373) 74."Per ABIRU, J.C.A. (Pp , Paras. E-A) - read in context

8 12 CRIMINAL LAW AND PROCEDURE - ALLEGATION OF CRIME: Distinction between allegation of crime and investigation of crime "I agree with his reasoning and conclusion that there is a world of difference between allegation of crime and investigation of crime. An allegation is a mere statement stating that someone has done something wrong or illegal. It is an assertion by a party to a legal action of what the party undertakes to prove. In relation to criminal investigation and trial, it is a positive assertion or statement made by a person to the police against another, accusing the other of the commission of a crime and for the purpose of having the statement investigated by the Police.?The word "Investigation" has been defined as a careful examination, study, inspection, exploration, analysis or appraisal or search in order to discover facts or gain information. It is that process of collecting information, inquiry into the information and a detailed examination of the allegation in order to reach the goal of ascertaining the truth of the allegation. A criminal investigation thus, refers to the process of collecting information (or evidence) about a crime in order to, (1) Determine if the crime has been committed (2) Identify the perpetrator (3) Apprehend the perpetrator (4) Provide evidence to support a conviction on it. According to Willmer on information theory, the criminal investigation process resembles a battle between the Police and the perpetrator over crime related information. The more information the police is able to gather from the signals emitted or information left behind by the perpetrator of the crime, the more successful the prosecution becomes in winning the battle. According to Bryan A. Garner Black's Law Dictionary, 9th Edition, Thomas Reuters USA at page 902, to investigate means:- 1. To inquire into (a matter) systematically; to make (a criminal) subject of a Criminal inquiry. 2. To make an official inquiry. See Eyonaowa v. Commissioner of Police (2014) LPELR (CA) Per OGUNWUMIJU, JCA (P. 61, Paras C-E) and Chedi & Anor v. A.G.F. (2006) LPELR (CA) per Muhammad JCA.?Criminal investigation therefore denotes the act of systematic enquiry into a matter, or to make a suspect the subject of a criminal inquiry. See also Blacks Law Dictionary 8th Edition."Per WAMBAI, J.C.A. (Pp , Paras. F-F) - read in context

9 13 CRIMINAL LAW AND PROCEDURE - ALLEGATION OF CRIME: Effect of failure to investigate allegation of crime "In Law, the failure to investigate the allegation against the Appellant is tantamount to the failure of the Police to discharge its constitutional responsibility of investigating the alleged crime."per WAMBAI, J.C.A. (P. 31, Paras. B-C) - read in context

10 HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Katsina State High Court in Charge No KHT/DM/15C/2004 delivered by Honorable Justice A. A. Abukur on the 16th of June, The Appellant was charged with attempted armed robbery contrary to the provisions of Section 2 (1) of the Robbery and Firearms (Special Provisions) Act, Cap 398 Laws of the Federation The Appellant was alleged to have broken into house of one Hauwa Musa on the 27th of July, 2002 in Gachi in Kankia Local Govemment Area of Katsina State while armed with a stick in an attempt to rob her of her money and in the process to have beaten her up. The Appellant pleaded Not Guilty to the charge and the matter proceeded to trial and in the course of which the Respondent called one witness and the Appellant testified as the sole witness in his defence. At the conclusion of trial and after the final addresses of Counsel, the Lower Court found the Appellant guilty of attempted robbery and sentenced him to fourteen years imprisonment. The Appellant was dissatisfied with the judgment of the Lower Court and he 1

11 caused his Counsel to file a notice of appeal against it. The notice of appeal is dated the 11th of September, 2009 and it contained six grounds of appeal. In canvassing the case of the Appellant in this appeal, his Counsel filed an amended brief of arguments dated the 3rd of October 2012 on the 10th of October, In response, Counsel to the Respondent filed a brief of arguments dated the 24th of April, 2014 and the brief of arguments was deemed properly filed and served by this Court on the 27th of April, At the hearing of the appeal, Counsel to the Appellant was absent from Court without any explanation, despite service of hearing notice on him. On the application of the Counsel to the Respondent, the brief of arguments of the Appellant was deemed argued by this Court pursuant to the provisions of Order 18 Rule 9 (4) of the Court of Appeal Rules, Counsel to the Respondent relied on and adopted the arguments contained in his brief of arguments as the oral submissions of the Respondent in this appeal. Counsel to the Appellant formulated six issues for determination in this appeal and these were: i. Whether the entire evidence

12 adduced before the Lower Court is sufficient to support and warrant the conviction of the Appellant. ii. Whether the Lower Court was not in error of law by shifting the burden of proving his innocence on the Appellant. iii. Whether the Lower Court was not in error of law by failing to properly evaluate and consider the crossexamination of the prosecution witness, i.e. PW1 and the defence of the Appellant. iv. Whether the Lower Court was right to hold that the ingredients of the offence, mens rea and actus reus, had been properly proved when there was no evidence to that effect. v. Whether the Lower Court was not in error of law by asking the Appellant to proceed with his defence without his Counsel. vi. Whether the Lower Court was right in convicting the Appellant on the uncoroborated and unreliable evidence of PW1. Counsel to the Respondent adopted the six issues for determination formulated by the Counsel to the Appellant. A look at the issues for determination formulated by the Counsel to the Appellant and a read through the segmented manner that the Counsel presented the arguments in the Appellant's brief show that the 3

13 skills of the Counsel in drafting and preparation of a brief of arguments in the appellate Court are less than adequate. Counsel formulated an issue for determination from every ground of appeal; in fact, Counsel practically converted each ground of appeal into an issue for determination and he presented arguments on each issue for determination separately such that the core of the Appellant's case in this appeal was presented in a haphazard manner, devoid of proper articulation. It is trite that issues for determination in an appeal are not synonymous with the grounds of appeal and should not be formulated to coincide with the number of grounds of appeal. Grounds of appeal allege the complaints of errors of law and fact or mixed law and fact against the judgment on appeal while issues for determination are short questions raised from one or more grounds of appeal and are meant to guide the arguments or submissions to be advanced in support of the said grounds of appeal. Hence, the Courts have stated that it is undesirable to formulate an issue in respect of each ground of appeal - Buraimoh Vs Bamgbose (1989) 3 NWLR (Pt.109) 352, Anie Vs Uzorka (1,993) 8 4

14 NWLR (Pt.309) 1, G. Chitex Industries Ltd Vs Oceanic Bank International (Nig) Ltd (2005) 14 NWLR (Pt.945) 392 and Akpan Vs Udoh (2008) 3 NWLR (Pt 1075) 590. The purpose of issues for determination is to enable the parties narrow the issues in the grounds of appeal filed. An issue for determination is simply a combination of facts and circumstances including the law applicable thereto which when decided one way or the other by the Court affects the fate of the appeal - Ali Vs Osakwe (2011) 7 NWLR (Pt.1245) 68, Nadabo Vs Dabai (2011) 7 NWLR (Pt.1245) 155, Daniel Tayar Transport Enterprises Nigeria Company Ltd Vs Busari (2011) 8 NWLR (Pt.1249) 387. It is a point which is so critical that if it is decided in favour of a party, such a party is entitled to win the appeal - Okoye Vs Nigerian Construction and Furniture Co Ltd (1991) 6 NWLR (Pt.199) 501 and G. Chitex Industries Ltd Vs Oceanic Bank International (Nig) Ltd (2005) 14 NWLR (Pt.945) 392. Reading through the judgment of the Lower Court, the notice of appeal of the Appellant and the arguments contained in the respective briefs of arguments of the Appellant, it is the view of this Court that there is only

15 one issue for determination in this appeal. It is: Whether the Lower Court was correct when it found that the Respondent led credible and cogent evidence to prove the elements of the offence of attempted robbery against the Appellant beyond reasonable doubt? This appeal will be resolved on this sole issue for determination and all the arguments of the Counsel to the parties in the appeal will be considered under this issue for determination. In arguing the issue for determination, Counsel to the Appellant stated that the decision of the Lower Court was unreasonable and unwarranted as the Lower Court based its decision on the insufficient and/or unreliable evidence of the sole witness for the prosecution and that it was trite that insufficient evidence or evidence lacking in credibility cannot ground a conviction and he referred to the case of Archibong Vs. The State (2006) 28 NSCQR 118. Counsel stated that in a criminal prosecution, the burden of proof is always on the prosecution to prove the guilt of an accused person and there was no duty on an accused person to prove his innocence and that the Lower Court fell into error when it shifted the 6

16 onus of proof in the instant case on the Appellant to prove his innocence and he referred to the case of Igabele Vs State (2006) NSCQR 327. Counsel stated that the trial Court was obliged to adequately consider every defence raised by an accused person, no matter how stupid or weak it may appear and that the Lower Court thus fell into error when it failed to consider the evidence led in the course of cross-examination of the sole prosecution witness and in the course of the testimony of the Appellant in his defence and he referred to the cases of Namsoh Vs State (1993) 5 NWLR (Pt.292) 129 and Uwakwekweghinya Vs State (2005) INCC 369. Counsel stated that in discharging the burden of proof on it in a criminal trial, the prosecution must prove all the essential elements of the offence contained in the charge beyond reasonable doubt and it must do so by producing cogent evidence and that in the instant case, there was nothing in the testimony of the sole prosecution witness establishing the elements of the offence charged to warrant the conviction of the Appellant and he referred to the case of Oden Vs FRN (2005) INCC 303. Counsel stated further that it 7

17 is a constitutional provision that every person charged with a criminal offence shall be given adequate time and facility for the preparation of his defence and shall be entitled to defend himself or by a legal practitioner of his choice and that the Lower Court fell into error when it directed the Appellant to proceed with his defence in the course of trial in the absence of his Counsel without asking the Appellant if he wanted to do so or not and it thus violated the right of the Appellant to a fair hearing. Counsel concluded his arguments by urging this Court to allow the appeal, set aside the judgment of the Lower Court and to discharge and acquit the Appellant. In his response arguments, Counsel to the Respondent stated that the law has long been settled that a trial Court can convict on the sole evidence of a single witness if the Court believed the testimony of the witness and that the success or failure in a criminal trial is not tied to the number of witnesses called or not called by the prosecution, but to the quality of the evidence led by the prosecution at the trial to discharge its burden of proof and he referred to the case of Akindipe Vs 8

18 State (2012) 6 SCNJ (Pt.1) 278. Counsel stated that the Appellant failed to challenge the credibility and/or competence of the sole prosecution witness and that the evidence of the witness was relevant and having not been challenged or debunked, it ought to have been relied on by the Lower Court and he referred to the case of The State Vs Oludotun (2011) 5 SCNJ 149. Counsel stated that it was evident from the record of proceedings that the Lower Court properly evaluated the evidence of the sole prosecution witness, who was the victim of the attempted robbery and an eye witness, and that the Appellant failed to highlight the areas of deficiency in her evidence. Counsel stated that it was not evident from the record that the Lower Court at anytime in the course of trial placed the burden on the Appellant to prove his innocence and that the submission of the Counsel to the Appellant on the point had no foundation in the records of appeal and should be discountenanced. Counsel stated that it was incorrect that the Lower Court did not consider the evidence elicited from the prosecution witness under cross-examination and the evidence of the Appellant in his defence, 9

19 because the Lower Court did comprehensively evaluate all the evidence led at the trial before arriving at its decision convicting and sentencing the Appellant. Counsel stated that Counsel to the Appellant failed to show that the findings of the Lower Court were perverse or that there was a miscarriage of justice or a violation of the substantive procedure to warrant the interference by this Court with the decision of the Lower Court. Counsel stated that the testimony of the prosecution witness was very cogent, straightforward, truthful and it successfully established the ingredients of the offence of attempted robbery against the Appellant and it discharged the burden of proof on the prosecution to prove the presence of actus reus and the mens rea on the part of the Appellant and he referred to the case of Ibrahim Vs The State (1995) 5 NWLR (Pt.381) 35. Counsel stated that the records of appeal did not support the assertion that the Lower Court compelled the Appellant to proceed with his defence in the matter in the absence of his Counsel as such occurrence did not appear anywhere on the records, but rather the records show that it was the Lower Court 10

20 that got a Counsel assigned to defend the Appellant because of the serious nature of the offence. Counsel stated that it was obvious from the records that it was the Appellant himself that chose to proceed with his defence in the absence of his Counsel, as he was at liberty to do, and at no time did he insist that his Counsel must be present before he could proceed despite all the opportunity he had to do so and that the offence against the Appellant was not a capital offence attracting the death penalty. Counsel concluded his arguments by urging this Court to dismiss the appeal and affirm the judgment of the Lower Court and the conviction and sentenced passed on the Appellant therein. It is settled in our jurisprudence that the burden of proving that any person has committed a crime or a wrongful act rests on the person who asserts it and this is, more often than not, the prosecution. By virtue of Section 138 (1) of the Evidence Act, where the commission of crime by a party is in issue in any proceedings be it civil or criminal, it must be proved beyond reasonable doubt. In discharging the burden, the essential ingredients of the crime alleged must

21 be proved beyond reasonable doubt. The burden never shifts. Therefore, if in a criminal trial, on the whole of the evidence before it, the Court is left in a state of doubt, the prosecution would have failed to discharge the burden of proof which the law lays upon it and the defendant will be entitled to an acquittal. It must be stated that proof beyond reasonable doubt is "not proof to the hilt" and is thus not synonymous with proof beyond all iota of doubt and this is because the law will fail to protect the community if it admits fanciful possibilities to deflect the course of justice âuzoka Vs Federal Republic of Nigeria (2010) 2 NWLR (Pt.1177) 118, Jua Vs State (2010) 4 NWLR (Pt.1184) 217, Ike Vs State (2010) 5 NWLR (Pt.1186) 41 and Gabriel Vs State (2010) 6 NWLR (Pt.1190) 280. It is also trite that criminal responsibility for the commission of a crime is premised on the satisfactory proof of the two pillars of actus reus and mens rea, the doing of the act that constitutes the offence and the requisite mental capacity and the duty is always on the prosecution to prove the commission of a crime by proving the act done and the requisite guilty 12

22 mind of the accused person beyond reasonable doubt. In other words, in a criminal trial, before an accused person is asked to undergo any sort of sentence, there must be a finding by the trial Court on the concurrence of the two main elements of any crime; that is, the actus reus and the mens rea. Actus reus is taken to be the wrongful deed that comprises the physical components of a crime and that generally must be coupled with mens rea. Mens rea is the criminal intent or guilty mind of the accused. For the prosecution to establish a criminal act against an accused person, it must go beyond establishing the commission of the unlawful criminal act by the accused and establish that the accused had the correct legal criminal mind of committing the act. The two must co-exist, whether explicitly or by necessary implication - Njoku Vs State (2013) 2 NWLR (Pt 1339) 548. In Nwokearu Vs State (2013) 16 NWLR (Pt 1380) 207, the Supreme Court, while discussing the concept of guilty mind in committing a crime, defined intention as: "... the purpose or design with which an act is performed. It is the foreknowledge of the act coupled with the desire to do the act. 13

23 The foreknowledge and desire form the cause of the act, in so far as they fulfill themselves through the operation of the will. An act is intentional if, and in so far as it exists in idea before it exists in the realm of facts; the idea realizing itself in the fact because of the desire by which it is accompanied." Thus, the question before the Lower Court was whether the Respondent proved beyond reasonable doubt the specific acts of the Appellant that constituted the offence with which he was charged and that he did those acts with the requisite mental capacity; whether the Respondent proved the essential elements of the offence charged against the Appellant. The offence against the Appellant is attempted armed robbery brought pursuant to Section 2 (1) of the Robbery and Firearms (Special Provisions) Act. The section reads that any person who, with intent to steal anything, assaults any other person and at or immediately after the time of assault, uses or threatens to use actual violence to any other person or any property in order to obtain the thing intended to be stolen shall upon conviction under this Act be sentenced to imprisonment for

24 not less that fourteen years and not more than twenty years. To sustain a charge of attempted robbery, the prosecution must prove the acts perpetuated by the accused person which must be so proximate and closely connected to the robbery, something more than mere preparation for the commission of the robbery, that were he not somehow interrupted, would have resulted in the commission of the robbery - Ozigbo Vs Commissioner of Police (1976) 2 SC 67, Ibrahim Vs State (1995) 3 NWLR (Pt.381) 35, Jegede Vs State (2001) 14 NWLR (Pt 733) 264, Shurumo Vs State (2011) All FWLR (Pt 568) 864. Additionally, the prosecution must prove that the steps taken by the accused had reached the point when they indicate beyond reasonable doubt that the end to which they were directed was robbery. The prosecution must prove the mental ingredients to commit the offence of robbery, i.e. an intention to rob, steal or remove property - Etim Vs State Q013) LPELR-CA/OW/223/2010. In proof of its case against the Appellant, the Respondent called only one witness, a Hauwa'u Musa, the alleged victim of the attempted armed robbery, and she testified that in the night of the 27th of July, 15

25 2002 at about 01:30 hours, while sleeping in her room, she heard a noise at the entrance into her house and that she sat up and opened the door of her room and looked out through the door and saw a man sitting on the wall wearing only knickers and no shirt and that the man used his toes to open the door into the house. She stated that the man thereafter used a block stone to hold the door ajar and took a stick from outside the door and came inside the house and was coming towards her room and whereupon she took her torch light, came out of her room and shone the torch light unto the face of the man and asked in Hausa language, "what is the problem" and the man replied in Hausa that "I will deal with you if you flash your torch at me again". The witness gave evidence that she recognized the man as the Appellant and that the Appellant was her cousin and she had known him for a long time, and that the Appellant started abusing her as she continued to shine the torch light in his face and that the Appellant then asked her, again in Hausa language, "where is the money being kept by your husband" and that she replied in Hausa too that "he has not given me 16

26 any money to keep." She testified that the Appellant at that point used the stick he was holding to hit the back of her right hand and she sustained an injury and that when she realized that the Appellant was going to hit her again, she countered his attack by hitting him on the head with the torchlight. She stated that she thereafter grabbed him firmly by his knickers and that the Appellant started struggling to free himself from her grip and she began shouting, in Hausa language, "thief, thief, thief'. She said that she was an asthma patient and that she suffered an asthma attack in the course of the struggle and shouting and that this enabled the Appellant to loosen her grip on his knickers and escape before her neighbours arrived on the scene. Under cross-examination, the witness stated that she could not state the precise time of the incident as she was not wearing a wrist watch and she thereafter described the stick that the Appellant was holding and said she was in a state of confusion when she saw the Appellant at the material time. The Appellant testified in his defence and he stated that he was sleeping in his house one Saturday morning 17

27 around 6.30am when the prosecution witness, who is his cousin, and her mother, Hajia Kwaidi, came to his house and that his wife woke him up to attend to them and that Hajia Kwaidi asked him what transpired between him and Hauwa. He stated that he directed the question to Hauwa and whereupon the prosecution witness stated that she saw someone who resembled him in her house around 9pm of the previous day and who demanded for money with a threat to kill her if she failed to oblige and that he told Hauwa to fear Allah against what she was alleging against him and Hajia Kwaidi intervened and advised Hauwa to forget about the incident and they departed. He stated that he thereafter went to the Police Station at Kanti, Kankia to report what transpired in his house between himself and Hauwa and her mother and that the Police invited Hauwa and her mother and Hauwa repeated the same allegation she made against him in his house in front of the Police. He said that he demanded Hauwa to take an oath with the Noble Qur'an that he was the person she saw in her house in the night of the previous day at about 9pm demanding for money and threatening to kill her, but that Hauwa 18

28 declined swearing with the Noble Qur'an because she was not sure it was him she saw. The Appellant gave evidence that the Divisional Police Officer in charge of the Police Station, Mr. Aliyu WutaWuta said that since the prosecution witness said that the person she saw looked like him, he had a case to answer and that he would not be allowed to go and he was detained pending further investigation. He stated that after a week in the Police cell, DPO Aliyu demanded the sum of One Hundred Thousand Naira from him as bribe to effect his release unconditionally from the allegation made against him and that when he refused to oblige, the DPO ordered that his case be transferred to the State Criminal Investigation Department in Katsina for further investigation and that he spent three days at the State CID before he was arraigned in the Chief Magistrate Court. Under cross-examination, the Appellant reiterated that the prosecution witness was his cousin and that he knew her well, though he seldom saw her and that the prosecution witness also knew him well and could recognise him anywhere. These were the entire evidence led before the Lower Court in this 19

29 matter. In its deliberations on the matter, the Lower Court weighed the testimony of the prosecution witness against the evidence of the Appellant and stated that he believed the evidence of the prosecution witness because it was direct and positive and truthful and he disbelieved the evidence of the Appellant because it was contradicted by the evidence of the prosecution witness and he stated that he did not find the evidence of the defence cogent and credible enough to challenge or discredit the overwhelming evidence adduced by the prosecution in proof of the offence of attempted robbery against the Appellant. The Lower Court discountenanced the evidence of the Appellant that the Police only set the law in motion against him because he refused to pay the bribe of N100, demanded by the Divisional Police Officer, saying that the evidence looked and sounded unbelievable and unattractive. The Lower Court found that the evidence of the prosecution witness established the twin pillars of the commission of an offence, actus reus and mens rea, against the Appellant and proceeded thereon to convict and sentence the Appellant. Now, it is elementary that the 20

30 evaluation of evidence in a civil matter differs from evaluation of evidence in a criminal matter because the burden of proof in a civil matter is discharged on a balance of probabilities or preponderance of evidence, whilst in a criminal matter it is by proof beyond reasonable doubt. The phrase proof beyond reasonable doubt means proof that has attained that level of certainty, credibility and assuredness which leaves the Court without any vestige of lingering doubts regarding the culpability or otherwise of the accused person and with regards to the particular offence with which he has been charged - Afolalu Vs State (2010) 16 NWLR (Pt.1220) 584. It means proof of an offence with the certainty of the Criminal Law, i.e. that the offence in question has been committed and that no other person but the accused person on the evidence committed the offence. Where the evidence conclusively establishes these facts, the offence is said to have been proved beyond reasonable doubt - Edwin Vs State (2014) LPELR- CA/AK/256/2013. In State Vs Gwangwan (2015) 13 NWLR (Pt.1477) 600, the Supreme Court stated that proof beyond reasonable doubt in the realm of criminal justice

31 connotes such proof as precludes every reasonable hypothesis, except that which it tends to support and it is proof which is wholly consistent with the guilt of the accused person and inconsistent with any other natural conclusions. Thus, the question before this Court in this appeal is whether the Lower Court was correct when it found that the Respondent led consistent and credible evidence that conclusively established (i) that an offence of attempted robbery was indeed committed; and (ii) that the Appellant and no one else, committed the offence. Now, the normal course of events with any crime is that the victim of a crime, or an eye witness or someone on behalf of the victim, makes a report of the occurrence of the crime to the Police or other authorized body of persons and the Police or the authorized body investigates the report, to establish that the crime did indeed occur, the circumstances of its occurrence and to confirm, identify and arrest the offender or offenders identified by the victim and/or by the eye witness or to whom the evidence discovered during investigation points. It was not in contest in this matter that the prosecution 22

32 witness, the alleged victim of the offence of attempted robbery, did not report the occurrence of the offence to the Police. Rather, she chose to go, in the company of her mother, to confront the Appellant, her alleged assailant, in his house. When the Appellant denied the allegation, the prosecution witness did not again go to report the matter to the Police and her mother advised her to forget the allegation. It was not in contest that it was the Appellant who reported the prosecution witness and her mother to the Police at Kanti Police Station, presumably for wrongful accusation of commission of a crime, and in consequence of which the Police invited the prosecution witness and her mother. It was in course of questioning the prosecution witness that she repeated to the Police the allegation she made against the Appellant and the Appellant, the person who made a report, was detained by the Police for the purposes of investigating the allegation of the prosecution witness. There was no evidence that the Police carried out any investigation of the allegation of the prosecution witness to ascertain if indeed the alleged crime did occur and whether the 23

33 manner of its occurrence was as told by the prosecution witness. The Appellant led unchallenged evidence that rather than investigate the allegation, the Divisional Police Officer of the Police Station, a Mr. Aliyu WutaWuta, demanded a bribe of N100, to effect his release unconditionally from the allegation made against him and that it was when he refused to oblige, that the DPO ordered that his case be transferred to the State Criminal Investigation Department in Katsina for further investigation. The Appellant led unchallenged evidence that he spent three days at the State Criminal Investigation Department before he was charged to Court. There was no evidence that the Sate Criminal Investigation Department carried out any investigation of the allegation of the prosecution witness against the Appellant. Obviously, it was this same uninvestigated allegation that the prosecution witness recanted before the Lower Court in her testimony, possibly in more detail. There is a wide difference between allegation of crime and investigation of crime - Dodo Vs Economic and Financial Crimes Commission (2013) 1 NWLR (Pt.1336) 468, Ajayi Vs State (2013) 9 24

34 NWLR (Pt.1360) 589. Allegation is the making of the complaint of commission of a crime, with its details, while investigation is the process of undertaking a careful search, study, close inquiry, scrutiny, detailed examination of the allegation to ascertain the true facts of the crime - Dangabar Vs Federal Republic of Nigeria (2014) 12 NWLR (Pt.1422) 575. Once criminal allegations are made against a citizen, it is a constitutional and statutory duty of the police to investigate it - Onah Vs Okenwa (2010) 7 NWLR (Pt 1194) 512. By not investigating the allegations of the prosecution witness of the commission of crime against the Appellant, the Police failed to transmit the story of the prosecution witness from the state of being a mere allegation to the state of being a possible statement of fact. It is rudimentary that an allegation of crime against a person only raises mere circumstances of suspicion against that person and suspicion does not amount to legal proof of the commission of a crime. This point has been made over and over by the Courts - see, for example, Abeke Vs The State (1,975) 9-11 SC (Reprint) 60, Bozin Vs State (1985) 2 NWLR (Pt.8) 465, 25

35 Babalola Vs State (1989) 4 NWLR (Pt 115) 264, Obiakor Vs State (2002) 10 NWLR (Pt.776) 612, Abacha Vs The State (2002) 11 NWLR (Pt.779) 437, Dung Vs State (2015) 9 NWLR (Pt.1465) 503. In Adeniyi v. Governing Council of Yaba College of Technology (1993) 6 NWLR (Pt 300) 426, Karibi-Whyte, JSC stated that suspicion, however strong, cannot support a conducive inference of guilt. It is still a wavering accusing finger of suspicious, guilt can only be accepted when the wavering finger stops wavering and stands stringent and erect pointing unwavering at the accused.while an allegation of crime commence the wavering of an accusing finger at an accused person, it is the investigation of the allegation and the ascertainment of facts establishing that the crime was indeed committed and that it was the accused person that committed that crime that makes the wavering finger stand "stringent and erect pointing unwavering at the accused. Failure to investigate or an improper investigation of an allegation of crime has been known to be an infamous albatross to the criminal prosecution of the crime - Al-Mustapha Vs State (2013) 17 NWLR (Pt.1383) 350. The

36 testimony of the prosecution witness did not thus constitute credible evidence upon which the Lower Court could have, without more, predicated its conviction and sentence of the Appellant. The apparent error that the Lower Court fell into in this matter was its inability to give full effect to the distinction between proof by preponderance of evidence in civil cases and proof beyond reasonable doubt in criminal cases. The Lower Court approached the matter in its evaluation of evidence as one whose resolution laid in deciding which evidence, between the prosecution witness' and the Appellant's, was better and more credible; an approach for resolution of civil matters. The Lower Court therefore made a big blunder when it found that the Respondent led credible and cogent evidence to prove the elements of the offence of attempted robbery against the Appellant beyond reasonable doubt. The need for trial Courts to be very circumspect in criminal trials and to exercise great care in convicting an accused person is one of the main signposts of our criminal jurisprudence and it is captured in the aphorism that it is better for ten guilty people to be set free than for 27

37 one innocent person to be convicted - Odogwu Vs State (2013) 14 NWLR (Pt.1373) 74. The conviction of the Appellant by the Lower Court was wrongful and it is liable to be set aside. In conclusion, this Court finds merit in the appeal and it is hereby allowed. The judgment of the Katsina State High Court in Charge No KHT/DM/15C/2004 delivered by Honorable Justice A. A. Abukur on the 16th of June, 2009, along with the conviction and sentence of the Appellant contained therein, is hereby set aside. The charge of attempted robbery against the Appellant is hereby dismissed. The Appellant is discharged and acquitted. These shall be the orders of this Court. OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have had the privilege of reading in advance the Judgment of my learned brother Habeeb Adewale O. Abiru JCA and I am in agreement that there is merit in this appeal. I also allow it and set aside the conviction and sentence of the Appellant by the Lower Court. AMINA AUDI WAMBAI, J.C.A.: I had the benefit of reading in draft the lead Judgment of my learned brother, Habeeb Adewale Olumuyiwa Abiru, JCA, I agree with his 28

38 reasoning and conclusion that there is a world of difference between allegation of crime and investigation of crime. An allegation is a mere statement stating that someone has done something wrong or illegal. It is an assertion by a party to a legal action of what the party undertakes to prove. In relation to criminal investigation and trial, it is a positive assertion or statement made by a person to the police against another, accusing the other of the commission of a crime and for the purpose of having the statement investigated by the Police. The word "Investigation" has been defined as a careful examination, study, inspection, exploration, analysis or appraisal or search in order to discover facts or gain information. It is that process of collecting information, inquiry into the information and a detailed examination of the allegation in order to reach the goal of ascertaining the truth of the allegation. A criminal investigation thus, refers to the process of collecting information (or evidence) about a crime in order to, (1) Determine if the crime has been committed (2) Identify the perpetrator (3) Apprehend the 29

39 perpetrator (4) Provide evidence to support a conviction on it. According to Willmer on information theory, the criminal investigation process resembles a battle between the Police and the perpetrator over crime related information. The more information the police is able to gather from the signals emitted or information left behind by the perpetrator of the crime, the more successful the prosecution becomes in winning the battle. According to Bryan A. Garner Black's Law Dictionary, 9th Edition, Thomas Reuters USA at page 902, to investigate means:- 1. To inquire into (a matter) systematically; to make (a criminal) subject of a Criminal inquiry. 2. To make an official inquiry. See Eyonaowa v. Commissioner of Police (2014) LPELR (CA) Per OGUNWUMIJU, JCA (P. 61, Paras C-E) and Chedi & Anor v. A.G.F. (2006) LPELR (CA) per Muhammad JCA. Criminal investigation therefore denotes the act of systematic enquiry into a matter, or to make a suspect the subject of a criminal inquiry. See also Blacks Law Dictionary 8th Edition. It is therefore strange and indeed preposterous that without any formal complaint made to 30