In The Court of Appeal of Nigeria
On Thursday, the 6th day of July, 2017
Before Their Lordships
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
CHINWE EUGENIA IYIZOBA Justice of The Court of Appeal of Nigeria
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria
SAHEED ADESINA –Appellant
FEDERAL REPUBLIC OF NIGERIA-Respondent
CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment): The Appellant, Saheed Adesina along with 14 others was arraigned at the Federal High Court Abeokuta on a three count charge of conspiracy and tampering with NNPC Oil Pipeline contrary to Section 1 (7) of the Miscellaneous Offences Act Cap M17 Laws of the Federation of Nigeria 2004 in Charge No FHC/AB/28C/2006.
The Prosecution’s case was that the Appellant and 14 others as indicated in the Charge Sheet with others still at large, on the 22nd day of December, 2005 at a point near Kara market in Ode Remo, Ogun State wilfully broke an NNPC Oil Pipeline and siphoned refined petroleum products from it. The Appellant, a truck driver by profession was the 8th accused person at the trial. A truck usually driven by him was found at the scene near Kara market in Ode-Remo along with other trucks filled with petroleum products. The Appellant pleaded not guilty and claimed he had gone to wash a friend’s truck at the car wash and that his own truck had broken down at Kara Trailer Park in Ogun State. The prosecution in proof of the case called 13 witnesses and tendered 109 Exhibits. At the close of the prosecution’s case, Appellant’s counsel along with Counsel for all the other accused persons made a No Case Submission. The Learned Trial Judge upheld the No Case Submission in respect of count 1, the conspiracy count but overruled it on counts 2 & 3. The Appellant then gave evidence on his own behalf and called no other witness. Learned counsel on both sides exchanged written addresses which were duly adopted in Court. The learned trial judge Olatoregun J. found the Appellant guilty on counts 2 & 3 and sentenced him to 20 years imprisonment with hard labour but with an option of a fine of N500,000.00 (five hundred thousand Naira). The Appellant dissatisfied with the conviction filed a Notice of Appeal on the 24th of January, 2012 which was subsequently amended with the leave of Court. The parties filed and exchanged briefs of argument. Olakunle Agbegbi Esq Appellant’s counsel from the three grounds of appeal in the Amended Notice of Appeal, distilled three issues for determination as follows:
1. Whether the learned trial judge was right to have overruled the no case submission of the Appellant at the trial?
2. Whether the failure of the learned trial judge in not considering the final address of the Appellant’s counsel at the close of the case is not a derogation of the rights of fair hearing of the Appellant?
3. Whether the learned trial judge was right in holding that the prosecution proved a case of tampering with NNPC oil pipeline and siphoning refined petroleum products against the Appellant beyond reasonable doubt particularly in the light of the evidence adduced?
Onyeka E. Ohakwe Esq Assistant Chief State Counsel DPP’s Office, Federal Ministry of Justice Abuja, in the Respondent’s brief adopted the issues formulated by Appellant’s counsel.
WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT TO HAVE OVERRULED THE NO CASE SUBMISSION OF THE APPELLANT AT THE TRIAL?
Mr. Agbebi on this issue submitted that the learned trial judge erred in overruling the no case submission made by the Appellant. He submitted that the Appellant is a truck driver by profession and would be known and seen to drive one truck or the other around the area of his operation. He
argued that such evidence cannot be sufficient to prove his guilt on the two counts he was convicted of. Counsel examined the totality of the evidence adduced by the prosecution against him and submitted that the only evidence linking him to the crime is that of PW6 a representative of Petroleum Tanker Drivers Association (PTD) who identified Exhibit Q5 one of the tankers in which the petroleum product was found as belonging to him. Yet the mode of identification was merely an AP Emblem on the truck when there are over 700 trucks registered with the Petroleum Tanker Drivers Association in Sagamu. Learned counsel submitted that the prosecution did not lead evidence on the ownership of the vehicle beyond the uncorroborated evidence of PW6. He argued that there was no confessional statement to link the Appellant to the crime. He further argued that since the Learned Trial Judge had upheld the No Case Submission with regard to Count 1 of the charge relating to conspiracy that he ought to have done the same for the other counts. He submitted that the burden on the prosecution was proof beyond reasonable doubt that the Appellant himself formed an intention to tamper with NNPC pipelines and to siphon fuel from them. He submitted that evidence of ownership of a vehicle used in the commission of the crime is not evidence of such guilty intent. Counsel cited the case of AGBOPA V STATE(1981) 2 NCR 59 and submitted that the mere presence of a vehicle the ownership of which was ascribed to the Appellant at the scene of the crime does not make the Appellant a party to the offence nor cause him to be guilty of the offence. He further submitted that all the prosecution witnesses in their testimony on oath admitted that the Appellant was not arrested by the police at the scene of the crime but was brought to the police by the Petroleum Tanker Drivers Association members. He opined that there was nothing in their testimony connecting the Appellant to the crime in any way save the uncorroborated and unreliable testimony of PW6 that the Appellant is the owner of Exhibit Q5. Counsel submitted that it is a matter of common knowledge in Nigeria that African Petroleum (AP) is a major petroleum oil marketing company which deploys a huge fleet of petroleum trucks daily in its operations. He argued that the truck found at the scene could easily have been any one of the trucks if the entirety of the evidence of PW6 to tie Q5 to the Appellant is that it had an AP emblem. Learned counsel submitted that the Appellant was not arrested at the scene of the crime but was arrested several days later at a car wash several kilometres away from the crime scene. Counsel submitted that the prosecution failed to make out a case sufficient to call on the Appellant to enter a defence. He argued that the finding of the Learned Trial Judge at Page 89 Line 3-4 of the Record of Appeal that “there is also evidence that some of the accused persons are either drivers or owners of some of the petrol tankers, recovered from the vicinity of the crime, loaded with fuel and that they belong to the PTD members of Mosinmi Depot” amounts to calling on the Appellant to prove his innocence even when the prosecution had failed woefully to make out a case against him. Counsel submitted that it has been settled by a long line of authorities that a submission of No Case to answer may be properly upheld when there has been no evidence to prove an essential element of the alleged offence either directly, circumstantially or inferentially. He cited the case of IBEZIAKO V COMMISSIONER OF POLICE (1963) 1 ALL NLR 61 AT 69.
Learned counsel submitted that the evidence adduced by the prosecution could not sustain any of the elements of the alleged offence and was also manifestly unreliable such that no reasonable Tribunal would have convicted on it. He urged us to so find and hold.
Learned counsel finally submitted relying on the case of QUEEN V. ASABA & ORS. (1961) 2 NSCC 299 AT 303 that when a No Case Submission (which is made on the basis that the prosecution has not proved a case against the Appellant) is wrongly overruled and the continuation of trial leads to the conviction of the Appellant, an appeal resulting from the proceedings ought to succeed. He urged us to set aside the ruling of the Learned Trial Judge delivered on the 8th of February, 2007 and in its place rule that the Appellant had no case to answer and thereupon discharge the Appellant.
Mr. Ohakwe in reply referred to Sections 286 and 287(1) of the Criminal Procedure Act and the case of EMEDO & ORS V STATE (2002) 11 NSCQR 288, GODWIN IGABELE V STATE
(2005) 1 NCC 59 and submitted that once the Court is satisfied that prima facie case is established against the Accused person, it shall call on such an accused person to enter his defense. Counsel submitted that the Supreme Court in the case of AJIDAGBA VS I.G.P (1958) SCNLR quoted with approval the holding in SHER SINGH VS JITEHNDDNANTHEN (1931) 1 L.R CA LE 275 that prima facie simply means that there is a ground to proceed but. that prima facie case is not same as proof by evidence which comes later when the Court has to find out whether the Accused is finally guilty or not…And that the evidence discloses a prima facie case when it is such that if not in dispute, and if believed it will be sufficient to prove the case against the accused”. Learned counsel submitted that the Trial Judge delivered a ruling on 8/2/07 that having taken into consideration, the totality of evidence adduced before it; it was convinced that a prima facie case was established against the Accused person. He opined that the law empowers the judge when so convinced, to call upon the Accused person to defend himself. He cited ABACHA VS STATE (2002) 32 WRN 1 AT 9 and submitted that this ground is misconceived and should be discountenanced.
RESOLUTION OF ISSUE 1:
Section 286 of the Criminal Procedure Act provides that “If at the close of the evidence in support of the charge it appears to the Court that a case is not made out against the defendant sufficiently to require him to make a defense the Court shall, as to that particular charge discharge him”. Further Section 287 (1) provides that at the close of the evidence in support of the charge, it appears to the Court that a prima facie case is made out against the defendant sufficiently to require him to make a defense, the Court shall call upon him to make a defense. The position of the law therefore is that a submission that there is no case to answer by an accused person means that there is no evidence on which even if believed by the Court, it can convict. In other words, certain essential elements of the offence for which the accused stands charged was not proved by the prosecution. At this stage of the proceedings, the question whether or not the Court believes the evidence does not arise. AJIBOYE V. STATE (1995) 8 NWLR (PT.414) 408; AGBO & ORS V STATE (2013) LPELR-SC.164/2010. A submission of no case to answer could therefore only be properly made out and upheld when (1) there has been no evidence to prove an essential element of the offence; and/or (2) the evidence adduced by the prosecution has been so discredited as a result of cross-examination or so manifestly unreliable that no reasonable Tribunal can convict on it. OWONIKOKO V. STATE (1990) 7 NWLR (PT. 162) 381; ADEYEMI V. THE STATE (1992) 6 NWLR (PT.195) 1.
The factor to consider at this stage is whether the prosecution has made out a prima facie case requiring at least some explanation from the accused person. A prima facie case is made out where the evidence adduced by the prosecution is such that if un-contradicted would be sufficient to prove the case against the accused. In IBEZIAKO V C.O.P. (1963) 1 ALL NLR 61 it was held that however slight the evidence linking an accused person with the commission of the offence is, the case ought to proceed for the accused to explain his own side of the matter.TONGO V. C.O.P. (2007) 12 NWLR (PT 1049) 525.
The key witnesses in the case at the lower Court were PW1 and PW6. PW1, Inspector Innocent Opara attached to Divisional Headquarters Isara Remo testified that at about 11pm on 22/12/03 he was on patrol when he saw a bus patrolling suspiciously within the axis of Ibadan-Lagos-Ibadan Express Way. His team became suspicious and followed the bus. The bus entered Kara market through a dirt road back to the Express Road. A tanker driver emerged and when they stopped the tanker, the driver abandoned the tanker and ran into the bush. While they were at the spot, a man emerged to claim ownership of the Tanker saying they were carrying petrol. The man appealed to them not to take the matter to the Police Station and two other men joined him. PW1 testified that they heard noises from the bush and so telephoned their DPO for reinforcement. One of the men the 2nd accused offered them a bribe of N30,000.00 but they refused. The 1st and 2nd Accused persons were arrested at the spot but one man escaped. As they went near the area where the tanker emerged from, they heard gun shots. They returned the shot and they heard people running into the bush. They pursued them into the bush and came across a hut built with planks. There, they arrested the
3rd, 4th and 5th accused persons, found and took away a single barrel gun with one expended cartridge, and 8 unspent cartridges. They also recovered 4 saloon cars from the premises around the hut which were taken to the police station. On the way back to the scene with the DPO, they saw nine Petrol Tankers, seven loaded with petrol and two empty. This was in addition to the full Tanker earlier abandoned by the driver who absconded. PW1 testified that they were unable to get to the scene of the crime that day because it was a foot path and the road was blocked by the Tankers. When they eventually got to the scene, they saw that two NNPC Pipe lines were dug up and punctured. They also saw the hose with which fuel was being siphoned from the hole to the tankers. They saw the cleared bush where the Tankers normally turned. All the Tankers were taken to the Station with the accused persons so far arrested. The IPO PW2 testified that when he visited the scene of the crime he recovered a sledge hammer and a wrench. He found two impacts on the pipeline and called NNPC to effect repairs. He testified that the 7th, 8th, 10th and 13th accused persons were arrested by the Tax Force from NNPC Sagamu. PW6, Aderemi Koledoye was the Secretary to Petroleum Tanker Drivers (PTD) branch of NUPENG, Mosinmi Depot NNPC. He identified the 6th, 7th, 10th, 11th, 12th and 15th accused persons as members of PTD. He told the Court that all the Petrol Tankers they saw at the scene of the crime near Kara were from Mosinmi Depot. He saw the Gauge Valves and the Hose. The PTD were told to fish out the drivers of the arrested Tankers. He testified that even though some of the Plate numbers had been removed from the Tankers, he was able to identify the Tankers by their colours since the trucks had been operating with them at Mosinmi for years. He testified that it is his job to register all trucks operating at Mosinmi and that the drivers must pass through him because he had to issue Identity cards for NNPC. It was from this knowledge that he was able to identify the drivers of the arrested Tankers as follows: Tanker Exhibit Q belonged to the 6th accused person; Tanker Exhibit Q1 to the 15th accused person; Tanker Exhibit Q2 to the 12th accused person; Tanker Exhibit Q3 to the absconded man; Tanker Exhibit Q4 to the 11th accused person; Tanker Exhibit Q5 to the 8th accused person (Appellant). He did not know the owners of Tankers Exhibits Q6 Q9. From the evidence of PW1 and PW6 as set out above, it can reasonably be inferred that the owners or drivers of the abandoned Tankers found at the scene of the crime filled with petrol siphoned from the NNPC Pipeline have a case to answer. There is clearly a prima facie case against the Appellant. The learned trial judge cannot at this point concern himself with the truthfulness or otherwise of the allegation against the Appellant. The learned trial judge was right in his conclusion that at the stage of no case submission he did not need to comment on the facts. All he needed to ascertain was whether there was any evidence at all, no matter how small linking the accused persons to the offence charged. He found no evidence linking any of the accused persons to the conspiracy count and discharged all of them with respect to that count. The learned trial judge overruled the no case submission made on behalf of the 8th accused, the Appellant on counts 2 and 3 based on the evidence that he was the driver/owner of Exhibit Q5. Whether right or wrong, he has a case to answer. A prima facie case had been made out against him as required by law. The learned judge was right in overruling the no case submission made for the Appellant and in calling on him to present his defence. Issue 1 is resolved against the Appellant and in favour of the Respondent.
Whether the failure of the learned trial judge in not considering the final address of the Appellant’s counsel at the close of the case is not a derogation of the rights of fair hearing of the Appellant?
Learned counsel on issue 2 relying on the cases of JOSIAH V STATE (1985) 1 NWLR 125; GALOS HIRED V THE KING(1944) A. C. 149; GOKPA V INSPECTOR-GENERAL OF POLICE (1961) ALL NLR 423 submitted that the Learned Trial Judge failed to give the Appellant equal opportunity to present his case by completely ignoring the final address of his Counsel. Counsel submitted that the failure derogated from the Appellant’s constitutional right to defend himself by Counsel of his choice and was in breach of the basic principles of natural justice that a judge should hear both sides of the case. He submitted that the Record of
Appeal is replete with references made to the final address of the Respondent with nothing on record to indicate that the Appellant’s Final Address was also considered. Counsel urged us to resolve issue 2 in favour of the Appellant and to set aside the conviction and sentence passed on him.
Mr. Ohakwe in response to Appellant’s argument on issue 2 relying on the case of SABURI ADEBAYO V A.G. OGUN (2008) 3 NCC 305 submitted that the trial judge was not bound to lift counsel’s submissions and was at liberty to write his judgment the way he saw fit. Counsel submitted that the question is whether the failure to refer to the final written submission of the defence counsel occasioned any miscarriage of justice? Counsel cited the cases of ADIGUN V A.G. OYO STATE (1998) 1 NWLR (PT.53) 628; SABURI ADEBAYO V A.G OGUN (SUPRA);NDUKWE V STATE (2009) 4 NCC 1; OMOTOLA V STATE (2009) 4 NCC 90; AND OGBA V ONWUZO (2005) 14 NWLR (PT.945) 331 @ 334-335 to contend that what is important is whether all the evidence adduced was considered and whether all elements expected in a good judgment were incorporated as each judge has his own peculiar style. Counsel submitted that the judgment of the lower Court was well written and contained all the elements expected in a good judgment. He urged us to resolve the issue against the Appellant.
RESOLUTION OF ISSUE 2:
Learned counsel’s argument on issue 2 seems compelling in view of the judgment of the Supreme Court in the case of OBODO V OLOMU & ANOR (1987) NWLR (PT.59) 111. In that case, the Plaintiff/Appellant did not file any written address. The learned trial judge after the close of hearing wrote in the Record book: Parties will send their address (sic) to me in writing. Order: Adjourned to 2nd August 1983 for judgment. The judge delivered the judgment on 14/9/83. The Defendant/Respondent apparently filed in the trial Court on an unknown date a document headed WRITTEN ADDRESS SUBMITTED BY COUNSEL IN SUPPORT OF DEFENDANT’S CASE. The document was not served on the Plaintiff/Appellant nor his counsel. As it was not dated one could only tell that it was filed before judgment was written because the learned trial judge seemed to have relied heavily on it, notwithstanding the absence of a written address from the Plaintiff/Appellant. The Appellant’s appeal to the Court of Appeal was dismissed by a majority of 2 to 1 on the grounds inter alia that even without the address by both parties the decision arrived at by the learned trial judge would not have been different. The Supreme Court upturned the judgment of the Court of Appeal and the trial Court holding as follows:
The hearing of a case under our system is that every party must not only be heard but also must be afforded the opportunity of being heard. Without the opportunity of one side being heard, there can be no facts for the Court to fully assess as in Mogaji v. Odofin, (1978) 4 SC 91. Addresses form part of the case and failure to hear the address of one party, however overwhelming the evidence seems to be on one side, vitiates the trial; because in many cases, it is after the addresses that one finds the law on the issues fought not in favour of the evidence adduced. Order 26 Rule 17 is mandatory and as the Appellant was not aware of what was contained in the defendants’ address and the judgment of the trial Court was based almost solely on that address, there is a miscarriage of justice which was not mitigated by the approach of Court of Appeal to the issue.
In the instant appeal, at page 115 of the Record, after the proceedings of 5/4/2007, the learned trial judge recorded that the Defence had now effectively closed its case and adjourned further hearing to 15/5/07 when all counsel will address the Court. On 15/5/07, the record of the Court read as follows:
The 11 accused persons present.
P.I. Erhabor prosecuting
Mr. Muyiwa Obanewa for the 1st, 2nd, 3rd and 5th accused persons.
Aremo Yusufu for the 4th accused person.
M.J. Haruna for the 6th accused person.
E.I. Ikwugbado for the 7th accused person.
George Oyeniyi for the 11th accused person.
Mr. Yemi Giwa for the 15th accused person.”
No representation was recorded for the 8th accused person (the Appellant). On that day, all counsel present addressed the Court, that is to say, Obanewa, Yusufu, Haruna, Ikwugbado, Oyeniyi and Giwa for their respective clients as shown in the representation above. The addresses covered pages 116 121 of the Record. No address was delivered on
behalf of the 8th Accused (Appellant). At the end at page 121, it was recorded that all counsel agree on adjournment to 22/5/07 for further hearing. At pages 122 ,124 of the Record of Appeal, there is a written address on behalf of the Appellant prepared by his counsel Mr. Olatunji. It was filed on 21/5/07. There is no evidence on record that the address was ever adopted. Learned counsel for the Prosecution Mr. Erhabor’s address is at pages 124, 126 delivered during the proceedings of 5/6/07. Judgment was on that date reserved till 3/7/07 but was eventually delivered on 11/7/07. The judgment is at pages 128 , 186 of the Record. From pages 147, 157 of the Record, the learned trial judge referred to and considered the addresses of counsel exactly as presented by the respective defence counsel on 15/5/07 and that of the prosecuting counsel on 5/6/07. No reference was made to any address by learned counsel for the 8th accused (Appellant). This leaves me with the impression that the written address by the 8th accused was never adopted in Court. But then, this is speculation. The learned trial judge ought to have said something about this. Courts of Record are duty bound to place on record all matters of importance that transpired in the course of the proceedings to avoid disputes and uncertainties. That is precisely why they are referred to as Courts of Record. On 15/5/07 when there was no representation for the 8th accused, learned trial judge ought to have recorded that there was no representation for the 8th accused and indicated whether or not his counsel was duly served. Again after summarizing the addresses of all the counsel that appeared before him on 15/5/07, learned trial judge ought to have indicated that 8th Respondent’s counsel was absent on the day counsel addressed the Court, hence no address was delivered on his behalf. The learned trial judge did none of the above, and now counsel for the Appellant is claiming that their address was completely sidelined and ignored by the trial judge. The prosecuting counsel, Mr. Ohakwe who could have thrown more light on exactly what transpired, in his brief of argument reacted to the issue in a way that gave the impression that the Appellant’s written address was indeed brought to the attention of the Court. If the Appellant filed his written address on 21/5/07 after all other counsel had addressed the Court and there was no order from the trial Court permitting him to file belatedly and the written address was indeed never adopted, then the Appellant has no one to blame for the complete blackout of his address from the judgment but himself. But in the circumstances when doubt has been created by the failure of the trial judge to record what actually transpired, we have no choice but to give the Appellant the benefit of the doubt. We are bound to follow the judgment of the Supreme Court in OBODO V OLOMU & ANOR (SUPRA) and to hold that the failure of the trial judge to hear and consider the address of the Appellant has vitiated the trial. Issue 2 is resolved in favour of the Appellant.
Whether the learned trial judge was right in holding that the prosecution proved a case of tampering with NNPC oil pipeline and siphoning refined petroleum products against the Appellant beyond reasonable doubt particularly in the light of the evidence adduced?
Learned counsel on this issue adopted his submissions in respect of issues 1 & 2 and further submitted that the prosecution failed to prove beyond reasonable doubt the charge against the Appellant. Learned counsel cited the case of DANIELS V STATE (1991) 8 NWLR (PT 212) 715 @ 732 D-E where it was held:
“It is not the law that an accused person should be convicted because the Court regarded him as a liar or because he was seen running away from the scene of the commission of the crime with the weapon. What the Court should consider is whether the prosecution has proved its case beyond reasonable doubt against the accused.”
Counsel submitted that the prosecution’s case against the Appellant rested entirely on the testimony of PW6 who merely identified a truck as the truck usually driven by the Appellant. Counsel submitted that there was no evidence on record that the Appellant was the owner of the truck which would then imply that he could deploy the truck in whatever manner he pleased. Counsel submitted that the entire identification was recorded to have been by virtue of an “AP Emblem”. Counsel argued that a vehicle that plies the road regularly must be registered and that the identification of the
truck by AP Emblem was not known to law and ought to have been discountenanced. Counsel submitted that there was no evidence that the Appellant drove the truck on the day in question and he was not arrested at the scene of the crime. He further submitted that there was no evidence on record that the learned trial judge properly considered the Appellant’s defence. Counsel submitted that the prosecution failed to carry out a proper investigation of the case and that based on the evidence presented at the trial, the lower Court ought to have discharged and acquitted the Appellant. Counsel urged us to resolve issue 3 in favour of the Appellant, to set aside the conviction and sentence passed on him and to discharge and acquit him.
Learned counsel for the Respondent while conceding that the prosecution bears the burden of proving the case beyond reasonable doubt submitted that proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. He cited and relied on several authorities. Counsel submitted that the prosecution through its witnesses testified that following a suspicious movement of a bus while the police was on patrol they discovered that there was an illegal activity involving the oil pipelines. A tanker loaded with PMS was seen coming out of a bush track and on sighting the police the driver ran into the bush. The Exhibits (Tankers) were recovered at the scene of crime by PW1. PW6 Secretary to the PTD branch NUPENG Mosinmi Depot NNPC, one Koledoye Aderemi whose duty it was to register both the tankers and drivers loading from their depot. Counsel submitted that through his position he was able to identify Exhibit Q5 found at the scene of crime as a truck belonging to the appellant. He argued that upon this information linking the Appellant fully to the crime, the Court over-ruled his No-Case Submission and called upon him to testify in his own defence. Counsel submitted that the Appellant’s evidence was at variance with the statement he made to the police at the time of his arrest. He argued that the Appellant and other accused persons were clearly identified before the Court as the owners of petrol tankers Exhibits Q-Q9. He further submitted that the trial Court had the opportunity of observing the demeanour of the Appellant and of evaluating the evidence placed before it and was satisfied that enough materials were placed before it in proof beyond reasonable doubt of the guilt of the Appellant. He urged us to dismiss the appeal as lacking in merit and to affirm the judgment of the Court below.
RESOLUTION OF ISSUE 3:
There is a long line of cases on the incidence of burden of proof in criminal cases. In fact the law is so trite that it requires no authority. It is one of the first and basic principles learnt by students of Criminal Law. Nonetheless authorities must still be cited. In the case of OMOREGIE V STATE (2017) LPELR-SC.334/2012 GALINJE JSC observed:
The law is settled that in criminal cases the burden of proof that the accused committed the offence for which he is charged lies squarely on the prosecution, who must prove its case beyond reasonable doubt and has a general duty to rebut the presumption of innocence constitutionally guaranteed to the accused person. This burden never shifts. See Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria, Section 135(2) of the Evidence Act, Alabi v. The State (1993) 7 NWLR (Pt.307) 511 @ 531 paras. A-C, Solola v. The State (2005) 5 SC (Pt. 1) 135
See also ALONGE V. INSPECTOR-GENERAL OF POLICE (1959) MLR 516; AFOLALU V. STATE (2010) ALL FWLR (PART 538) 812 @ 828; POSU & ANOR V THE STATE (2011) LPELR.SC.134/2010; OZAKI V STATE (1990) 1 NWLR (PT. 124) 92 @ 125C-D; UCHE V. THE STATE (2015) LPELR-SC.167/2013.
The bare truth is that the burden is on the prosecution and never shifts.
The two counts the Appellant was convicted of read as follows:
2. That you………………..and others now at large on the said date, time and place within the aforementioned jurisdiction did tamper with NNPC Oil Pipeline by wilfully breaking and unlawfully siphoning refined petroleum products from the said pipelines and thereby committed an offence punishable under Section 3(7) of the Special Tribunal (Miscellaneous Offences) Act Cap 410 Laws of the Federation of Nigeria, 1990 as amended by Tribunal (Certain Consequential Amendments, etc) Decree 1990.
3. That you ………………and others now at large on the said date, time and place within the aforementioned jurisdiction without lawful authority or an appropriate licence, did
deal in Petroleum Products by siphoning petroleum products into Tanker Trucks and thereby committed an offence punishable under Section 3(17) of the Special Tribunal (Miscellaneous Offences) Act Cap 410 Laws of the Federation of Nigeria, 1990 as amended by Tribunal (Certain Consequential Amendments, etc) Decree 1990. Proof of the offence charged could be by direct evidence, circumstantial evidence or confessional statement. There was no direct evidence against the Appellant. He was not seen by anybody committing any of the offences. He did not confess to committing the offence. The only evidence against him was that he was the owner/driver of one of the Tanker Trucks found at the scene of the crime. He was not seen driving the truck. He was not arrested at the scene of the crime. He was arrested through PW6 the Secretary to Petroleum Tanker Drivers (PTD) branch of NUPENG, Mosinmi Depot NNPC. PW6 claimed he knew the owners of the arrested Tankers. He had identified the Tankers whose registration numbers had been removed through their colours because the trucks had been operating with them at Mosinmi for years. He claimed he was able to identify the owners/drivers because his job included registering all trucks operating at Mosinmi and their drivers whom he had to issue Identity cards for NNPC. This of course is circumstantial evidence. Circumstantial evidence necessary to support a conviction in a criminal trial must be cogent, complete and unequivocal. The facts must be incompatible with innocence of the accused and must lead irresistibly to only one logical conclusion, the guilt of the accused. See R V. TAYLOR (1975) ILORI & ANOR V. STATE (1980) 8-11 SC 81; 21 CR.APP 20; IGBIKIS V STATE(2017) LPELR-SC.316/2014. Is it possible that the evidence against the Appellant that he is the owner/driver of the Tanker Truck lead to the logical conclusion that he committed the crimes above? I think not, especially when the Appellant denied being the owner/driver of the vehicle. Most confounding is the uncertainty in the evidence of PW6 linking the Appellant to one of the Tanker Trucks. PW6 initially testified on 15/6/2006. His evidence is at pages 26 30 of the Record of Appeal. The Appellant was in Court on that day and in the dock. PW6 recognised 15th, 12th, 11th, 7th, 6th and 10th as their members. He did not mention the Appellant (8th accused). On that day he gave no evidence at all against the Appellant. He concluded his evidence and was cross-examined by all the counsel present. On 30/10/06, PW6 was recalled for the sole purpose of identifying the Tanker Trucks marked Exhibits Q-Q9. It was at that point that PW6 testified that AP emblem Exhibit Q5 belonged to the 8th accused. But in his evidence at page 95 of the Record, the appellant testifying for himself denied driving any Tanker to siphon fuel illegally. He denied being the owner of Exhibit Q6. He tendered the particulars of his Truck, the number of which is XH 443 LSR. Under cross-examination he said his own Truck was faulty and was parked at Kara Trailer Park. At page 174 of the Record, the learned trial judge found the Appellant guilty on counts 2 & 3 in the following words:
In the case of the 8th Accused person, I found his statement to the Police at variance with his evidence on oath. He told the Court that he was arrested at the Carwash with a friend’s Truck. His own truck he stated was faulty and at the Kara Trailer Park. He mentioned his Truck to be the one with Registration number XH 443 LSR. He also tendered documents to support the Registration Number of his truck.
Whereas in his statement to the Police he stated that he went to wash his own vehicle on the day he was arrested. This inconsistency was not resolved. He also admitted under cross-examination that he had driven other trucks in the past.
PW6 identified Exhibit Q5 as the truck driven by the 8th accused and he recognized the truck even in spite of the plate number having been removed. He was able to identify the Truck by its colour. This evidence was never controverted. I am satisfied that the prosecution was able to identify the 8th accused with Exhibit Q5. The 8th accused failed to raise any doubt in the prosecution’s case.
I find him guilty as charged in Counts 2 and 3 and he is accordingly convicted on each of the counts.
One of the reasons given by the learned trial judge for finding the Appellant guilty was the inconsistency in his testimony in Court and his statement to the Police. The learned trial Judge opined that the inconsistency was not resolved. Whose duty was it to follow up on that inconsistency in order
to substantiate the allegation that the Appellant was indeed the driver of the Trailer Q5 on the day of the incident? The friend’s Trailer the Appellant claimed he was washing ought to have been detained. The Police should have taken the Appellant to Kara Trailer Park to show them his own faulty truck parked there. Most importantly, at page 185 of the Record, the Registration No of the Trailer Q5 was shown as XC 178 AGL. If the Registration No was known what was the difficulty in tracing the owner to compel him tell the Police in whose custody he left his Trailer. These are the steps the Prosecution should have taken in order to prove the crime beyond reasonable doubt. For the learned trial judge to say that the 8th accused failed to raise any doubt in the prosecution’s case is surely shifting the burden of proof to the Appellant. The Appellant had denied being the owner of the Trailer or being the driver of the vehicle on that day, the burden remained on the Prosecution to adduce convincing evidence that he was indeed the driver of the Trailer on that day. The circumstantial and weak evidence of PW6; the fact that the Appellant lied and the fact that he admitted under cross-examination that he had driven other Trucks in the past do not point to only one logical conclusion the guilt of the accused. Count 2 is that the Appellant tampered with NNPC Oil Pipeline by wilfully breaking and unlawfully siphoning refined petroleum products from the said pipelines. Count 3 is that the Appellant without lawful authority or an appropriate licence did deal in Petroleum Products by siphoning petroleum products into Tanker Trucks. The prosecution surely requires a lot more than the evidence adduced against the Appellant to be able to prove the charges beyond reasonable doubt. The Police did not do a good job in the investigation of this case. The NNPC turned on the executive of Petroleum Tanker Drivers Association and accused them of vandalizing their pipelines. The Executive in their anxiety to find people to blame bungled the entire investigation. How can they resort to identifying Trailers by their colour when actual Registration numbers of the Trailers can be identified even where the plate numbers of the vehicles have been removed? Once the real owners of the vehicles were identified, it should then be easy for them to disclose the drivers to whom they had entrusted the vehicles. Again, PW6 who claimed that it was part of his job to register vehicles and their drivers; what stopped him from using his Records if he had any? If he was able to identify the Trailers and their drivers from his Log book, then it would have been more difficult for the drivers to escape conviction. There is no doubt that the activities of these unscrupulous bad citizens who take actions that sabotage the economy of the country are most offensive and deserve the severest punishment; but we must not in our anxiety to put a stop to their nefarious activities derail from the sacred duty imposed on us by our oaths of office to ensure that convictions are based on proof of the offences beyond reasonable doubt. Our security agencies must put more effort into investigation of crimes to ensure that criminals do not escape punishment due to lack of evidence.
Issue 3 is resolved in favour of the Appellant. Having resolved issues 2 and 3 in favour of the Appellant, I hold that this appeal is meritorious. It is hereby allowed. The conviction and sentence of the Appellant is set aside. He is discharged and acquitted.
MODUPE FASANMI, J.C.A.: I had a preview of the draft of the lead judgment of my learned brother Chinwe Eugenia Iyizoba, JCA.
The standard of proof in criminal cases is as set out in Section 135 Sub Section 1 of the Evidence Act 2011 which stipulates:
“If the commission of a crime by a party to any proceeding is directly in issue in any proceedings civil or criminal, it must be proved beyond reasonable doubt.”
Thus, for a charge to result in a conviction, the prosecution must prove its case beyond reasonable doubt. See the cases of Solola v. The State (2005) 5 SC (pt. 1) pg. 135 and Alabi v. The State (1993) 7 WLR (pt. 307) pg. 511 at 531 paras A-C.
For the learned trial judge to say that the Appellant failed to raise any doubt in the prosecution’s case i.e. the Respondent is surely shifting the burden of proof to the Appellant. The Respondent has failed in its duty to substantiate the allegation that the Appellant was the driver of the trailer Q5. It is not the duty of the Appellant to prove his innocence.
For this reason and the other reasons ably set out in the lead judgment, I also allow the appeal and abide by the consequential orders contained therein.
HARUNA SIMON TSAMMANI, J.C.A.: I had the privilege of reading in advance the judgment delivered by my learned brother, C. E. Iyizoba, JCA.
My learned brother has ably and admirably and firmly considered and resolved the material issues that came up for determination in this appeal. I agree entirely with his reasoning and conclusion on those issues. I have nothing else to add. This appeal therefore has merit, and is hereby allowed.
C. U. MOLOKWU, ESQ. –For Appellant
O. E. OHAKWE ESQ., CHIEF STATE COUNSEL, FEDERAL MINISTRY OF JUSTICE, ABUJA. –For Respondent