"In criminal cases, the norm is for the Appellant to keep within the bounds of the burden of proof which is proof beyond reasonable doubt. The standard of proof in criminal cases is higher than that of the civil cases that can only be determined on the balance of probabilities. It is within this context that one can talk of the weight of evidence since the evidence is weighed to determine where the balance is. In criminal matters, it is the quality of evidence and not the quantum that is required. This point was eminently made in the case of DAGAYYA VS. THE STATE (2006) 7 NWLR (PT. 980) 637 where Ogbuagu, JSC held that: "It needs be stressed and this is settled, that in a criminal appeal, the point, is not the preponderance of evidence on one side which outweighs the evidence on the other side. See ALADESURU & ORS. VS. THE QUEEN (1956) A.C. 49 and ENITAN & 2 ORS. VS. THE STATE (1986) 3 NWLR (PT. 30) 604 SC.
But in the case of MBAM IBOKO & ORS. VS. B. POLICE (1965) NMLR 384 this Court (per incurriam), stated that High Court Judges should see this as a pardonable mistake to frame a ground of appeal as provided in a rule of Court, and delete the words 'weight of evidence' and invite Counsel to argue the appeal from conviction on the facts with the right approach as laid down in QUEEN VS. OMISADE & ORS. (1964) NMLR 67 @ 78. It must also be borne in mind that this ground, is all about the omnibus ground of appeal and it's the way, or manner it is couched. It is judicially recognized that an omnibus ground of appeal in a criminal case, is differently drafted/couched from such a ground of appeal, i.e., in a criminal case, it is framed as follows: "The judgment is unreasonable and cannot be supported having regard to the evidence." See also B. P. (WEST AFRICA) LTD. VS. ALLEN (1969) 2 SCNLR 388 in a civil case, it is:
"The judgment is against the weight of evidence". See AKIBU VS. OPALEYE & ANOR. (1974) 11 SC 189. I was minded to strike out the said ground because, the couching is also verbose. But being a pardonable mistake and in view of the said decision in IBOKO & ORS. VS. POLICE (supra), I will tolerate it in that the said mistake, is that of Counsel and not that of the Appellant". Wali, JSC in the case of WANKEY VS. THE STATE (1993) 5 NWLR (PT. 295) 542 held that:
"There is no doubt that to frame a ground of appeal in a criminal case that "the decision is against the weight of evidence" is improper, as the preponderance of evidence on one side which outweighs the evidence on the other side is not the issue". See also the case of ABASI VS. THE STATE (1992) 8 NWLR (PT. 260) 383.
This policy of our criminal law and procedure forbidding grounds of appeal in criminal from being laid as if the appeal is against the civil rights of the Appellant is remarkably a long one and has not yet changed. The only consideration is that the error of such wrong drafting is that of the Legal Practitioner and not the Appellant in person. Since what is at stake is the life of the Appellant, necessity is laid upon this Court to take a deep breath and pardon the lapses. This will subject the Court to looking at the overall complaint of the Appellant in the case and see if there is any doubt created as to the guilt of the Appellant to enable the Court properly review the conviction and the sentence complained of in this appeal."
Per ADAH, J.C.A. IN UDOFIA v. STATE CITATION: (2018) LPELR-44311(CA)
