JOHN IDO V. THE STATE

JOHN IDO V. THE STATE

 final
In The Court of Appeal
Ibadan Judicial Division
On Wednesday, the 30th day of March, 2011
Suit No: CA/I/251/06
 
Before Their Lordships
 
STANLEY SHENKO ALAGOA    ……. Justice, Court of Appeal
MODUPE FASANMI    ……. Justice, Court of Appeal
JOSEPH SHAGBAOR IKYEGH    ……. Justice, Court of Appeal
    
 
 Between
JOHN IDO   – Appellant
            
 
      And
                   
THE STATE    -Respondent
        

 


COUNSEL:
                              
A. Ogunsanya Esq. with S. C. Ukairo Esq.    =For the Appellant

                              
F. F. Fakolade (Miss) State Counsel Ogun State M.O.J.   – For the Respondent


JUDGMENT:
    

STANLEY SHENKO ALAGOA, J.C.A.: (Delivering the Leading Judgment): This is an appeal against the judgment of Oduntan J. of the High Court of Justice Abeokuta, Ogun State of Nigeria in Charge No. RFT/5/96 delivered on the 28th April, 2000 convicting the Appellant and sentencing him to life imprisonment for Attempted Armed Robbery under Section 2(2) (a) of the Robbery and Firearms (Special Provisions) Act Cap 398 Laws of the federation of Nigeria 1990.

The case for the prosecution briefly is that on the 21st September, 1993, one Adeyemi Adetoro, a driver with a Company known as Sundere (Nigeria) Ltd. Lagos Nigeria was driving his employer's trailer with registration number LA 2808 SF loaded with about one thousand six hundred crates of stout from Lagos to Ado Ekiti in the company of a motor attendant by name Edun when along the Lagos/Ibadan Expressway at a point after Ogere toll gate their trailer was stopped by the Appellant and two other persons now at large. All three persons were dressed in army and mobile police uniforms. The driver Adeyemi Adetoro henceforth, referred to as PW1 as he indeed was in the trial High Court said he noticed that they carried guns. Upon inquiry by them as to what he was carrying in his trailer, he informed them that it was Guinness stout which they said was rice. They demanded the waybill of the consignment of Cargo he was carrying and he showed it to them. The Appellant then opened the door of the trailer where the motor attendant was sitting and pulled him down. At that point in time PW1 saw a Danfo bus reversing towards them which stopped as it got to them. The Appellant who was dressed in Army uniform began to beat his attendant and ordered him to lie face down. While this was going on PW1 said he managed to put on the security device in the trailer to immobilize it and had hardly finished doing this when the Appellant and the others pounced on him and pulled him down from the trailer. The other two who were dressed in army and mobile police uniforms held PW1 and started to push him around. They bundled him into the Danfo bus where three other men were seated. He pleaded with them to allow him to go and get the ignition key inside the trailer removed and they allowed him to do so. When he got out of the Danfo bus, he started to run away and succeeded in reaching a nearby toll gate without being caught where he raised an alarm.

Later the Appellant and the others also arrived at the toll gate and told the police man at the toll gate that they were after PW1 for drenching them with water at Ojota earlier that day which allegation was denied by PW1 as he did not go through Ojota. PW1, Appellant and the other two persons with him were then taken to Iperu station. PW1 stated further that while the Appellant and his companions travelled in the police vehicle to Iperu, he was allowed to drive his own vehicle to Iperu police station. That was the evidence of PW1 in court. Two other witnesses PW2 and PW3 also gave evidence for the prosecution. The Appellant gave evidence in self defence.

After addresses of counsel, the learned trial Judge in its considered judgment delivered on the 28th April 2000 found the Appellant guilty of Attempted Armed Robbery and accordingly sentenced him to imprisonment for life. It is against this conviction and sentence that the Appellant has appealed to this court. To the sole ground in the original Notice of Appeal that the decision of the High Court is unreasonable and cannot be supported having regard to the weight of evidence, the following additional grounds of appeal have by leave of this Court been added viz -

GROUND 2: ERROR IN LAW

The learned trial Court erred in law when it held that the prosecution has proved the essential ingredients of Attempted Armed Robbery against the Appellant.

PARTICULARS OF ERROR

(i) The prosecution failed to show that the act of the Appellant was sufficiently proximate to the crime with which he was accused of.

(ii) There is no evidence before the learned trial Judge to show that the accused person had the intention to rob manifested by clear cut acts.

(iii) The prosecution failed woefully to show that the accused person was trying to rub.

GROUND 3: ERROR IN LAW

The learned trial Judge erred in law and fact by failing to properly evaluate and pronounce on the material evidence of the Appellant which created doubt in the evidence of the prosecution and the failure has occasioned a miscarriage of justice to the Appellant.

PARTICULARS OF ERROR

(i) The Appellant gave evidence that it was because of the dangerous driving of PW1 in Ojota Lagos State that prompted the Accused/Appellant and his colleagues to chase PW1 to Ogere toll gate.

(ii) The trial court did not make specific findings of fact on vital issues raised at the trial by the defence.

This appeal came up for hearing on the 16th February, 2011. A. Ogunsanya Esq. Counsel for the Appellant adopted and relied on the Appellant's Brief of Argument dated the 19th January, 2009 and filed same day but deemed properly filed on the 31st March, 2010 following the grant by this Court on that day of a Motion on Notice dated the 14th December, 2009 for an order for the Appellant to extend time to file his Brief of Argument and to deem the Brief of Argument already filed and served on the Respondent as properly filed and served. Counsel urged this Court to allow the appeal and set aside the Judgment of the High Court.

Miss F. F. Fakolade State Counsel Ogun State Ministry of Justice and counsel for the state, also adopted the Respondent's Brief of Argument dated the 6th July, 2010 and filed same day but deemed properly filed on the 7th July, 2010 following the grant on that day by this Court of a motion on Notice brought pursuant to Order 7 Rule 10 of the Court of Appeal Rules which motion is dated the 6th July, 2010 and filed same day. She urged this court to dismiss the appeal and affirm the judgment of the trial High Court.

From the original Notice of Appeal and the Additional Grounds of Appeal, the Appellant has in paragraph 3.1 at page 5 of the Appellant's Brief of Argument distilled the following sole issue for the determination of this Court vis -

"Whether the Prosecution proved the offence of Attempted Armed Robbery beyond reasonable doubt to warrant the conviction and sentence of the Appellant to life imprisonment."

The Respondent has in paragraph 3.01 at page 4 of the Respondent's Brief of Argument adopted the sole issue formulated by the, Appellant in the Appellant's Brief of Argument as appropriate to effectively determine this appeal.

I consider that issue broad based and adequate to deal with all the grounds in the original Notice of Appeal and the Additional grounds. An account of what transpired on the day of the incident has been recanted in the evidence of PW1 who is the star witness for the prosecution. PW2 and PW3 are the other prosecution witnesses. I however consider it befitting to consider the evidence of the Appellant next, because PW2 and PW3 are investigating police officers who were not at the scene of the incident. DW1 John Ido is the Appellant and his evidence is at pages 54-57 of the Record of Appeal. At the time of the incident he was a Lance Corporal in the Nigerian Army and worked at the Mechanical and Engineering section, Bonny Camp Lagos and attached to one Colonel Ekwo as an orderly who was then out of the country on official assignment.

On the day of the incident he went to work as usual and later took permission to go in search of Kerosene for his domestic use as there was kerosene scarcity then in the country. Upon information that there was kerosene at Ojota Lagos, he went to Ojota and indeed found a petrol station selling kerosene there. At the petrol station there were a lot of people including some soldiers who were waiting to buy kerosene. One of the soldiers waiting to buy kerosene was Lance Corporal Olaniyi Balogun. Olaniyi Balogun in attempting to cross the road from the filling station to the other side was almost knocked down by a passing trailer but for his smartness.

In doing so he ended up in a gutter and sustained some injury.  He also got soaked up in mud. Corporal Olaniyi Balogun then picked up himself, stopped a Danfo bus and got inside. At that point in time the Appellant decided to also get into the Danfo bus.

Meanwhile the trailer driver (PW1) who failed to stop after the incident also failed to stop at the nearby road block. The Danfo driver chased the trailer until he got to Ogere toll gate where the police-man on duty stopped him. The trailer driver was about leaving after finishing with the policeman at the toll gate when the Appellant and Corporal Olaniyi arrived at the scene in the Danfo bus. As injured Corporal Olaniyi Balogun stepped out of the Danfo bus, the trailer driver (PW1) also came down from his trailer and began to run toward the shed of a woman selling food in the area. The policeman on duty then sent for him to come back and when he did the policeman on duty asked him if he knew what happened between him (PW1) and Lance Corporal Olaniyi Balogun at Ojota and he said he remembered and that he was afraid. Lance Corporal Balogun then told him to follow him back to where the accident took place but PW1 did not want to go. At this point in time the Police Inspector in charge of the toll gate intervened and suggested that they all go with him to Iperu Police Station to see his boss who would settle the matter. At Iperu Police Station the police boss instructed a policeman to obtain their statement. During the statement taking the I.P.O. started to beat the Appellant after which the matter was transferred to Eleweran without bothering to follow them to Ojota to cross-check their story regarding the accident. At Eleweran they were taken before the 2 I/C who after listening to them told the policeman who brought them that the matter was a trivial one and that PW1 should foot the medical bills of wounded Corporal Olaniyi Balogun after which the whole incident should be forgotten.

However they were at the bus stop when another policeman came and told them that A.S.P. Agidiomo wanted them brought back and they followed the policeman back to Eleweran where their statements were taken after which they were locked up in the cell. Efforts by his office in Lagos to get him released failed. At Eleweran about five identification parades were carried out but in none of them did anybody identify either the Appellant or Lance corporal Olaniyi Balogun as having done anything wrong. Later the matter was charged to court.

Under cross-examination, the Appellant stated that due to the accident which he witnessed, he had to make the journey to Ogere although that journey did not cover the permission granted him by the army. He also said he did not know that one of them collected the ignition key and waybill from the trailer driver PW1.

PW2 is one Sgt. Sunday Joseph and his evidence is at pages 49 and 50 of the Record of Appeal. He referred to how he was on duty at Divisional crime Branch Iperu when this case was referred to him for investigation along with three suspects, two of whom were in army uniform while the third was in mobile police uniform. The Appellant was one of the two in army uniform. A rifle, hand grenade and a trailer loaded with Guinness products and invoices were also referred to him. He re-arrested the Appellant who volunteered a statement after the necessary caution. Later the Appellant and others were transferred to the State C.I.D. Eleweran. Under cross-examination by Mr. Iwu PW2 said the Appellant told him that he was attached to one Lt. Col. Ekoh a soldier but that he did not find out whether or not the claim of the Appellant was true as he only carried out preliminary investigation. PW2 also said that he knew Balogun Olaniyi who was one of the suspects in this case. He too was dressed in military uniform. He admitted that Olaniyi Balogun made a statement to him in which he stated that PW1 (the trailer driver) nearly hit him with his trailer and efforts to get him (PW1) to stop failed and so he (Olaniyi Balogun) had to chase PW1 with the help of a Danfo bus.

PW3 is one Sunday Ukpo a police corporal attached to criminal Investigation Bureau Eleweran. He said this case was referred to him for investigation after being transferred from Iperu Police Division. Also referred to him were three suspects including the Appellant? Also referred to him were a rifle with live ammunition and a trailer loaded with crates of Guinness stout. After the necessary caution, the Appellant volunteered a statement which was countersigned by him. The statement was admitted without objection as Exhibit A. He tendered a hand grenade which was admitted as Exhibit B. He said he also charged and cautioned the 2nd and 3rd accused persons and obtained statements from them which were admitted without objection as Exhibits C and C1. He later wrote to the Nigerian Army Electrical and Mechanical Engineers Bonny Camp to inform them of the Appellant's arrest and he got a reply from them to say that the Appellant was attached to one Lt. Col. Ekwo at Bonny Camp as a back-man. Under cross-examination this witness said he did not know what had happened to the 2nd and 3rd accused persons after they were charged to Court.

I have taken pains to highlight in some great detail the evidence of all the witnesses that gave evidence in this case leading up to this appeal. How well do these pieces of evidence lend themselves to or fit into the allegation of Attempted Armed Robbery against the Appellant leading to his conviction and sentence to imprisonment for life?

What is Attempted Robbery? Attempted Robbery under the Robbery and Firearms (Special Provisions) Act is defined thus -

"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 be sentenced to imprisonment for not less than fourteen years but not less than twenty one years."

Section 2 sub 2(a) of the Act simply provides that if such an offender as has just been described above is armed with any firearms or any offensive weapon such an offender shall upon conviction be sentenced to life imprisonment.

The offence of Attempted Armed Robbery is a criminal offence and must be proved beyond reasonable doubt by the prosecution.

 

To that end section 138 of the Evidence Act Laws of the Federation of Nigeria 2004 provides as follows -

"(1) If the commission of a crime by a party to any proceedings is directly in issue in any proceedings – civil or criminal, it must be proved beyond reasonable doubt.

(2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to section t4t of this act on the person who asserts it whether the commission of such is or is not in issue in the action."

The burden on the shoulders of the prosecution to prove the commission of a crime never shifts. Failure of the prosecution to establish even one of the ingredients of the offence amounts to failure to prove the guilt of the accused beyond reasonable doubt. Any doubt arising in the circumstance must be resolved in favour of the accused person. See the following cases -

AIGBEDION V. STATE (2000) 7 NWLR (PART 666) 686 at 704; (2000) 4 SCNJ 1; TANKO V. STATE (2008) 31 WRN 117; (2008) 16 NWLR (PART 114) 597 at 636; UMEH V. STATE (1973) 2 SC; ARUMA V. STATE (1990) 66 NWLR (PART 153) 125; HASSAN V. STATE (2001) 6 NWLR (PART 709) 246; NWEKE V. STATE (2001) 15 WRN 96; (2001) 4 NWLR (PART 704) 588.

It is a notorious principle of law and the list of judicial authorities on this subject matter is inexhaustible. The purport of this legal principle in the appeal before us is that it is the duty of the prosecution and not that of the Appellant which burden never shifts to prove that the Appellant attempted to commit Armed Robbery on the 21st September 1993 along the Lagos – Ibadan Expressway. A corollary to this is the legal aphorism that has gained notoriety in the Nigerian Criminal justice system as in other common law countries that an accused person (in this case the Appellant) is presumed innocent unless and until adjudged guilty by a Court of competent jurisdiction. See KIM V. STATE (1992) 4 NWLR (PART 233) 17 where Nnaemeka JSC of blessed memory stated thus,

"The prosecution may still fail if the accused person does not utter a word in his defence if the prosecution fails to prove its case beyond reasonable doubt against the accused."

See also IGABELE V. STATE (2006) 6 NWLR (PART 975) 100; WOOLMINDTON V. DPP (1935) AC 462.

Appellant is not here charged with the offence of Armed Robbery but that of an Attempt to Commit Armed Robbery. Appellant's counsel has submitted that an attempt to commit an offence means the doing of an act so proximate to and or immediately connected with the substantive offence that if not interrupted will result in the commission of that offence. Reference was made to the following cases – JEGEDE V. STATE (2001) 14 NWLR (PART 733) 264 at 282-283; SANI v. THE STATE (1993) 4 NWLR (PART 285) 99; YAKUBU IBRAHIM V. STATE (1995) 3 NWLR (PART 381) 35 at page 45-46; GEOFFREY OZIGBO V. COMMISSIONER (1976) 2 S.C. 67 at 74. While I agree with that definition it should always be borne in mind that an attempt to commit an offence is in its own right a substantive offence requiring an "actus reus' and a "mens rea'. An attempt to commit an offence while falling short of the culmination of the final act is nevertheless criminal once proved that the accused had a guilty mind. There must be an overt act in manifestation of the criminal intent. We have examined all the available evidence notably the evidence of PW1 the trailer driver and the Appellant who are the principal dramatis personae in the case at the High Court leading up to this appeal. We have also examined the evidence of the police officers PW2 and PW3 who investigated this case in the High Court. What does one make of all this evidence vis a vis the judgment of the High Court convicting and sentencing the Appellant behind bars for life?

The learned trial Judge in appreciation of his understanding of the law of attempt to commit an offence relied in his judgment on the Appeal Court decision in ALHAJI YAKUBU SANNI V. THE STATE (1993) 4 NWLR (PART 285) 99 at 199 where that court stated thus,

"It is the law that in every crime, there is first an intention to commit it; secondly the preparation to commit it; and thirdly the attempt to commit it. If the third stage – the attempt – is successful, then the crime is complete. The test for determining whether the acts constitute an attempt or preparation is whether the overt acts already done are such that if the offender changes his mind and does not proceed further in its progress, the acts already done would be completely harmless. But where the thing done is such that if not prevented by an extraneous cause would fruitify into the commission of the offence. It would amount to an-attempt to commit an offence."

The Learned trial Judge having appreciated this authority on attempt to commit an offence should equally have appreciated the fact that the onus the commission of an offence and the onus on the attempt to commit an offence still rests with the prosecution and does not shift to the accused (in this case the Appellant) to establish that the offence or crime was indeed committed. Indeed as stated in KIM V. THE STATE (supra) the accused does not even have to say anything. The learned trial Judge stated in his judgment at page 70 lines 17-18,

"Now is there anything in favour of the accused to raise any doubt why the evidence of PW1 should not be believed?"

Need the Appellant have established his innocence? It is not the bits and pieces of hiccups in the Appellant's evidence that should have been of so much interest to the learned trial Judge but whether the prosecution on whose burden it lies had established the Appellant's guilt. In his summation of the prosecution's case in his judgment at page 65 lines 8-11 of the Record of Appeal, the learned trial Judge fully appreciated the point made by PW1 when he stated as follows,

"PW1 begged his captors to allow him to go and fetch the ignition key inside his lorry. He was permitted but when he got out of the bus he started running away towards the policemen at the Ogere toll gate plaza while his captors pursued him."

This point is brought out more succinctly by reference to the evidence of PW1 at page 47 lines 7-12 of the Record of Appeal thus -

"They bundled me into their Danfo bus. I saw three other men inside the said Danfo bus. I pleaded with them to allow me tell my sister at Ogere before they drove me away but they refused. I then told them that they should allow me to get the ignition key inside my vehicle removed. They allowed me."

(Underling mine for emphasis)

In evaluating the evidence of PW1 on this aspect the learned trial judge in his judgment at page 69; lines 29-31 of the Record of Appeal stated as follows,

"They stopped PW1 and after finding out what he was carrying they ordered him to surrender the way bill, the vehicle particulars and the ignition key in his Possession." (Underlining mine of emphasis)

PW1 in his evidence never said he was ordered to surrender the ignition key in his possession. His evidence is that he begged to be allowed to go to his trailer to collect the ignition key. That the learned trial judge was undoubtedly swayed by this wrong belief in arriving at his judgment is further buttressed in lines 18-22 of the judgment at page 73 of the Record of Appeal where he stated as follows,

"On the other hand I believe the evidence of PW1 that he was stopped by the accused and his accomplices (still at large) on the day in question (2/9/93) at a point after the Ogere toll gate plaza, that they beat him and his motor assistant and took from him the way bill of his Cargo, the evidence particulars and the ignition key."

(Underlining mine for Emphasis.)

If the learned trial Judge was labouring under the mistaken belief that the Appellant and Lance Corporal Olaniyi Balogun had demanded and were in possession of the Ignition keys to the trailer then his evaluation of the evidence of PW1 was to say the very least faulty. Also at page 70 of the Record of appeal the learned trial Judge had stated in lines 6-9 as follows,

"The accused and his uniform accomplices ran after PW1 in pursuit while the three men in mufti escaped with the Danfo bus. The accused and his two uniformed colleagues were later rounded up by the policemen on duty at the Ogere toll gate plaza."

PW1 never gave that piece of evidence at the trial court below. The evidence of PW1 is at page 47 of the Record of Appeal lines 11-16,

"When I got out of their bus I started running away and I succeeded in reaching the nearby toll gate without being caught and there I raised alarm. As I was explaining to a policeman at the said toll gate what had happened to me the two members of the accuser's gang also came. They told the policeman that they were after me for drenching them with water at Ojota earlier that day."

The impression given by the learned trial Judge was that the Appellant and his colleague were apprehended while in a bid to escape. This faulty evaluation of the Evidence of PW1 by the learned trial Judge undoubtedly led to a wrong finding on the part of the Judge. All these lapses in evaluation undoubtedly led to a miscarriage of justice. The learned trial Judge disbelieved the evidence, of the Appellant while believing the evidence of PW1 the trailer driver. A lot of questions in PW1's evidence beg for answers. The evidence of PW1 is that the Appellant and his colleagues intended to or attempted to rob PW1 of the trailer and its consignment of Guinness products while armed. If that is the true position could the Appellant and his colleagues not have been more interested in taking possession of the ignition keys to the trailer and making good their escape since there was ample opportunity and time for them to do so? Could they (Appellant and his Colleagues) have abandoned any interest in the ignition keys to the trailer and concentrated their attention more on bundling PW1 into the Danfo bus and taking him away? Is the action of the Appellant and Corporal Olaniyi in bundling the PW1 into their Danfo bus and taking him away not more consistent with the evidence of PW1 himself at page 47 lines 15-16 that,

"They told the policeman that they were after me for drenching them with water at Ojota earlier that day?"

If the Appellant and Corporal Olaniyi were indeed robbers who wanted to rob PW1's trailer and its contents, why did they, having distanced themselves from PW1's trailer and its contents chose to pursue the PW1 and his colleague to the toll gate when they knew or ought to have known that there were armed police or military personnel who could easily apprehend them? These are very crucial questions which beg for answers. The fact that the Appellant and Corporal Olaniyi were armed as the evidence suggests did not by itself mean that they were armed robbers. The evidence of PW2 and PW3 shows that the identity of the Appellant as a soldier was not in doubt, that fact having been verified by PW3. While the possession of a gun or other firearm by a civilian may cause apprehension and fear in the mind of the average person that the possessor is an armed robber the same is not true for a member of the armed forces or the police.

I have at this point in time to say a word or two about the investigation or lack of it purportedly carried out by PW2 and PW3. PW2 Sergeant Sunday Joseph had said under cross-examination at page 50 of the Record of Appeal that the Appellant told him that he was attached to Lt. Col. Ekoh but he did not find out whether that claim was true or not. He also said he knew Corporal Olaniyi Balogun who in his statement stated how PW1 nearly hit him with his lorry and how PW1 failed to stop and was chased with the help of a Danfo bus. Did he carry out any further investigation to ascertain the veracity of the claim of Appellant? He preferred to say he was only carrying out "preliminary investigation"' PW3 Corporal Sunday Ukpo's evidence at page 52 of the Record of Appeal is that he wrote to the Nigerian Army Electrical and Mechanical Engineers informing them of the Appellant's arrest and got a reply that the Appellant was attached to one Lt. Col. Ekwo at Bonny Camp as a batman. He did not even know, he said under cross-examination, "What has happened to the 2nd and 3rd accused after I charged them to Court." It can thus be seen that, no serious effort was made by the prosecution to investigate the very elaborate account given by the Appellant in his statement to the police and in his evidence. There are yawning gaps in the prosecution's case which have not been bridged creating serious concern and doubt about the Appellant's guilt not least of which is the faulty evaluation of the evidence in this case. In our Criminal Jurisprudence there is the legal aphorism that it is better for ten guilty men to go scot free than for one innocent man to remain behind bars for an offence he is not likely to have committed. This is most befitting to be applied here. I find the Appellant John Ido not guilty of the offence of Attempted Armed Robbery for which he is charged and I hereby discharge and acquit him.

I also set aside the judgment of Oduntan J. of the High Court of Abeokuta Ogun State of Nigeria in Charge No. RFT/5/96 delivered on the 28th April, 2000.

 

 

MODUPE FASANMI, J.C.A.: I had the advantage of reading in advance the judgment of my learned brother, S. S. Alagoa, J.C.A, just delivered.

I agree that the appeal has merit and should be allowed and I allow same. I abide by the consequential orders made in the said judgment

 

 

JOSEPH SHAGBAOR IKYEGH, J.C.A.: I read before now the thorough judgment of my learned brother, Alagoa, J.C.A., with which I am in absolute agreement.

This is a pathetic a case. The facts before the court below should not have led to the conviction and sentence of the appellant to life imprisonment by the court below, if the court below had approached the case dispassionately and with the requisite care expected of it to bring to bear on the determination of criminal cases, particularly serious criminal allegation of attempted armed robbery attracting the fearful sentence of life imprisonment.

The facts in the record of appeal were adroitly summarized and dealt with by my learned brother, Alagoa, J.C.A. I need not rehash them save to sketchily restate that appellant's case that the P.W.1, one Adeyemi Adetoro, had in the course of driving a trailer motor-vehicle drenched appellant and his colleagues with water at Ojota on a previous occasion without stopping; which made appellant and his colleagues to stop them on the fateful day over the drenching incident, was not given adequate consideration by the court below.

The fact that appellant pursued P.W.1 to a police check-point where he caught up with him and the appellant explained to the policeman at the check-point why they were after the P.W.1 – for drenching water on them on a previous occasion – was, also, not properly addressed by the Court below.

In the normal course of things, an armed robber would not act the way appellant did as stated above. I think it was amazing that the court below did not see the element of innocence in the said conduct of the appellant. This is a clear case of putting an innocent man on trial contrary to the entrenched constitutional provision of the presumption of innocence of an accused person under section 36 (5) of the Constitution of the Federal Republic of Nigeria, 1999, as amended.

If the appellant was said to have attempted robbing P.W.1 of the motor-vehicle, then the ignition key of the motor-vehicle should have been in appellant's possession and appellant's attempt to drive the motor-vehicle away would have completed the offence of attempt. No such evidence was before the court below.

An objective appraisal of the evidence before the court below showed the full picture or pieces of the jig-saw had not completed to constitute attempted armed robbery – see Ozigbo v. C.O.P (1976) 2 S.C.67. Where the Supreme Court held per Darnley Alexander, C.J.N., that to constitute an attempt, the act must be immediately connected with the commission of the particular offence charged and must be more than preparation for the commission of the offence.

The court below made a finding that appellant took the ignition key of the motor vehicle from the p.w.1, when there was no such evidence to ground the finding. It was not the duty of the court below to speculate on the evidence by substituting its own supposition for the testimony of witnesses given on oath before it in my view – see Adelenwa v. The State (1971) 10 S.C.13.

The trial of appellant was, in my view, unfair. The court below never gave him a chance. It was bent on convicting him at all cost. It was, in my view, more of an inquisition than an accusatorial trial; quite contrary to our established system of criminal justice founded on fairness and the presumption of innocence of an accused person.

The appellant ought not to have been put on criminal trial in the first instance. And having tried him for what the evidence before the court below did not measure to proof beyond reasonable doubt, the court below should have acquitted him – see Ukorah v. The State (1977) N.S.C.C. 218 at 223 as follows:

"The Romans had a maxim that it is better for a guilty person to go unpunished than for an innocent one to be condemned, and this maxim later re-echoed with greater emphasis in the mouth of Sir Edward Seymour speaking on behalf of Fenwick upon a Bill of Attainder in 1696 when he said:

"I am of the same opinion with the Roman, whom, in the case of Cataline, declared, he had rather ten guilty persons should escape, than one innocent should suffer."

 

It is for the above stated reasons and the exhaustive reasons rendered by my learned brother Alagoa, J.C.A., that I too find merit in the appeal and hereby allow it and quash the conviction and sentence imposed on the appellant by the court below. An order of acquittal is entered for the appellant in consequence.