ABOLORE ISIAKA v. THE STATE
(2010)LCN/4125(CA)
In The Court of Appeal of Nigeria
On Monday, the 13th day of December, 2010
CA/IL/C.44/2008
RATIO
NOTICE OF APPEAL : EFFECT OF THE FAILURE OF THE APPELLANT TO SIGN THE NOTICE OF APPEAL BY HIMSELF IN CRIMINAL CASES
I am in tandem with the respondent’s counsel that if a notice of appeal is not signed by the appellant himself in criminal cases the appeal will be incompetent and will be dismissed. Salami JCA (as he then was) In ADEKANYA Vs FRN (2005) 5 WLR (pt 949) 443 held inter-alia “In criminal matters, by virtue of Order 4 Rule 4(7) of the court of Appeal Rules, every notice of Appeal or notice of application for extension of time within which such notice shall by given, shall be signed by the appellant himself except under the provisions of paragraph (5) rule (6) of Rule 4(10) of the Court of Appeal Rules….” It is similarly noticed in plethora of judicial authorities that a notice of appeal in criminal appeal signed by counsel and not the appellant himself is defective. By virtue of Order 4 Rule (1) of the Court of Appeal Rules, the notice of Appeal must be signed by the appellant himself and not the counsel. PER SOTONYE DENTON-WEST, J.C.A.
CONSEQUENCE OF THE FAILURE OF THE PROSECUTION TO PROVE ITS CASE BEYOND REASONABLE DOUBT
On these issues that is merged into one, on whether the learned trial Judge was right in holding that the Prosecution proved its case beyond reasonable doubt, the learned Counsel to both parties has rightly stated the position of the law on the burden and standard of proof in criminal cases as encapsulated in Sections 36(5) of the 1999 Constitution of the Federal Republic of Nigeria, and 138 of the Evidence Act. By these provisions, an accused is presumed innocent until proven guilty, and the burden is always on the prosecution to prove the essential ingredients of the offence for which he is charged beyond reasonable doubt with credible and reliable evidence juristic words of Lord Sankey in WOOLMINGTON VS. DIRECTOR OF PUBLIC PROSECUTTON (1935) AC 402 (2). Where the Prosecution fails to discharge this burden and onerous duty, a Court of Law before whom such an accused is arraigned shall have no other choice than to discharge and acquit him, and if the Court proceeds to convict the accused upon the failure of the Prosecution to establish the guilt of the accused beyond reasonable doubt, the Appellate Court shall quash such conviction, and discharge and acquit the accused. See the Cases of OCHEMAJE VS. THE STATE (2008) 36 NSCQR (pt.2) 826 @ 881 per ADEREMI JSC, NDUKURE VS. THE STATE (2009) 37 NSCQR 425 @ 459 – 460, AROGUNDADE VS. THE STATE (2009) ALL FWLR (pt. 469) 409, ABINFON VS. THE STATE (2009) ALL FWLR (pt. 471) 873 @ OMOLOLA Vs. THE STATE (2009) ALL FWLR (pt.464) 1490 @ 1603 – 1604 and ONACHUKWU VS. THE STATE (1998) 4 SCNJ 36 49. In the recent case of ALAMU VS. THE STATE (2009) 10 NWLR (Pt. 1148) 31 @ pages 46 paragraphs E – F, the Eminent Jurist MUKHTAR JSC opined thus inter-alia. “In a criminal case, where it is encumbered on the prosecution to prove it’s case beyond reasonable doubt all surrounding circumstances and the credible unchallenged evidence before the Court must be perused carefully. The Law is settled that in a situation where the Court entertains even the slightest of doubt, that should be resolved in favour of the accused person. See OFARLETE VS. THE STATE (2000) 12 NWLR (Pt. 681) 415” PER SOTONYE DENTON-WEST, J.C.A.
CROSS-EXAMINATION : WHETHER AN ACCUSED CAN BE CONVICTED ON THE EVIDENCE OF A WITNESS WHO WAS REPRODUCED AT THE TRIAL COURT FOR CROSS-EXAMINATION AFTER BEING EXAMINED IN CHIEF BY THE PROSECUTION
It is worthy to Note that the Appellant was convicted by the trial Court based on the evidence of Pw.3 and Exhibit 5 that was tendered through him. Shun of any embellishment, Pw.3 was not reproduced at the trial Court for cross-examination after being examined in chief by the Prosecution now Respondent for the Appellant to cross examine Pw.3. This singular act of the Respondent in breaching the provision of Section 36 (6) (d) which provides that: “Every person who is charged with criminal offence shall be entitled to:- Examine in person or by his legal practitioners the witness called by the prosecution before any Court of Tribunal”. and Section 189 of the Evidence Act which provides thus: “witness shall be first examined in chief then if any other party so desired cross examined”, then Section 190 “In criminal proceedings where more than one accused is charged at the same time, each accused shall be allowed to cross examine a witness called by the Prosecution before the witness is re-examined”. With all sense of responsibility, the platform on which the Lower Court placed his reasoning for the conviction is weak and unjustifiable. A court or Tribunal should never act on the evidence of a witness whom the other party want to cross examine, but cannot be reproduced or located for cross examination after he must have been examined in chief. The most honourable thing for the Lower Court would have been that of the evidence of PW3, who tendered Exhibit 5 should have been expunged from the record of the court or the Lower court should not have attached any weight to it. Because the essence of cross examination is to test the veracity and accuracy of the witness and not just a jamboree or merry making. A witness who fails to make himself available for cross examination should know that all his evidence goes to naught. PER SOTONYE DENTON-WEST, J.C.A.
WHETHER THE COURT CAN NOT CONVICT AN ACCUSED BASED IN THE ABSENCE OF ANY CREDIBLE EVIDENCE AGAINST HIM
From the evidence of the Prosecution witnesses, the onus as bestowed on the Prosecution to establish, they have failed to do this, and the learned trial Judge was in error to have convicted the Appellant in the absence of any credible evidence against him. See THE STATE VS. AZEEZ (2008) 4 SC, 188 @ 219. To buttress this view, the apex court in the case of Eme Orji vs The State reported in (2008) 10 NWLR (part 1094) & (2008) 3-4 S.C 198, Per ONNOGHEN JSC had this to say “it is settled law that it is the duty of the prosecution to prove the charge against an accused person by calling or producing credible admissible evidence to establish the ingredients of the offence with which the accused person stands charged. Also a settled principle of law is with respect to the standard of proof required of the prosecution in proving the charge against the accused person, the principle being that the prosecution must establish the guilt of an accused person beyond reasonable doubt. In order for the trial court to determine whether the legal duty imposed on the prosecution has been duly discharged, the trial court must consider the totality of the evidence before the court after which the court determines the issue as to whether or not the case against the accused person was made out or established beyond reasonable doubt – see Obue vs. State (1976) All NLR 139. PER SOTONYE DENTON-WEST, J.C.A.
CIRCUMSTANTIAL EVIDENCE :PRINCIPLE GUIDING THE CONVICTION OF AN ACCUSED BASED ON CIRCUMSTANTIAL EVIDENCE
…in the instant case, the case of the prosecution against the appellant is based on circumstantial evidence. It is however, settled law that for circumstantial evidence to ground a conviction in a criminal trial, especially a trial for a charge of murder as in the instant case on appeal, the circumstantial evidence must be cogent, complete and unequivocal. It must be compelling and lead to the irresistible conclusion that the prisoner or in the instant case, appellant, and no one else is the murderer. The facts must therefore be incompatible with the innocence of the accused and, also, incapable of explanation upon any other reasonable hypothesis than that of his guilt. It is also trite law, that where circumstantial evidence is capable of two possible interpretations, one of which is against while the other in favour of the accused, then in that circumstance, there has been no proof beyond reasonable doubt and as such the charge is said not to have been proved in which case the accused person is entitled to be found not guilty, discharged and acquitted of the offence charged – See State vs Kura (1975) 2 S.C 83.” PER SOTONYE DENTON-WEST, J.C.A.
CORROBORATION: WHETHER THE COURT CAN USE THE EVIDENCE OF THE ACCUSED TO CORROBORATE HIS CONFESSIONAL STATEMENT; PURPOSE OF CORROBORATION
It is not proper for the Judge to use the evidence of the accused to corroborate his confessional statement more especially when the accused person maintains a firm denial of the facts leading to his conviction. In order to secure a conviction, a corroboration of his alleged confessional statement is required. In all cases where the law provides that corroboration is necessary, a conviction of an accused can only be valid when there is such corroboration evidence. See IKO vs THE STATE (2001) 14 NWLR (PT 732) (2001) 7 S.C. (PT. 11) 115, R V BASKERVILLE (1916-1917) ALL E.R Reprint 38 @ 43. See also D.P.P. vs HESTER (1973) AC 296 @ 315 where LORD MORRIS said “The purpose of corroboration is not to give validity or credence to evidence which is deficient or suspect or incredible but only to confirm and support that which as evidence is sufficient and satisfactory and credible: and corroborative evidence will only fill its role if it itself is completely credible evidence.” See also Ogunbayo v. State (2007) 8 NWLR (Pt.1035), (2007)3 S.C. (Pt II) 1, (2007) 3 FWLR 374, Mbele v. State (1990) NWLR (Pt.145) 2, (1990) 7 S.C. (Pt I) 1, Nwankwoala v. State (2005) 12 NWLR Pt. (940) P.637 @ 679, Para G, Sanni v. State (1993) 4 NWLR (Pt.285) p.99 @ 119, para A. PER SOTONYE DENTON-WEST, J.C.A.
RIGHT OF AN ACCUSED PERSON : WHETHER AN ACCUSED PERSON CAN BE FOUND GUILTY OF A CRIMINAL OFFENCE WITHOUT ENSURING THAT HE HAD OPPORTUNITY OF CONFRONTING HIS ACCUSERS BY WAY OF CROSS EXAMINATION OF THEIR EVIDENCE BEFORE A COURT OF LAW
Unless there is cogent evidence before a court of law it is not permissible under a civilized democracy such as ours as to find the person guilty of criminal offence without ensuring that he had opportunity of confronting his accusers by way of cross examination of their evidence before a court of law. Section 36(1), (2), (3), (4) & (5) of 1999 Constitution of Federal Republic of Nigeria. PER SOTONYE DENTON-WEST, J.C.A.
JUSTICES
TIJJANI ABDULLAHI (PJ) Justice of The Court of Appeal of Nigeria
SOTONYE DENTON-WEST Justice of The Court of Appeal of Nigeria
IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria
Between
ABOLORE ISIAKA Appellant(s)
AND
THE STATE Respondent(s)
SOTONYE DENTON-WEST, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Kwara State Holden at Ilorin Division and presided over by Hon. Justice M.A. Folayan, which judgment sentenced the appellant to Ten years imprisonment and a fine of N50,000.00. The appellant was arraigned on a one count charge of belonging to, engaging in and associating with secret cult within and outside institution of learning in the state contrary to Section 11 of the Secret Cult and Secret Societies in Educational Institution (Prohibition) Law 2004 of Kwara State.
When the charge was read to the appellant he pleaded not guilty. In proof of their case the prosecutor called three witnesses and tendered six exhibits, this include exhibit 5, (the appellant’s extra judicial statements made to the police in the course of the investigation).
The facts of the case are stated in the judgment of the lower court. At the close of the case of the prosecution, the learned counsel for the appellant opened his defense.
On 11/11/2010 parties however, filed their written addresses which they adopted. Respectively the learned trial Judge found the appellant guilty and sentenced him accordingly.
Dissatisfied with the decision of the learned trial judge, the appellant has appealed to this court on three grounds as can be found on page 87 of the record of Proceedings.
In line with the rules of this court, briefs were exchanged by the respective parties and in the brief settled on behalf of the appellant, three issues were formulated for determination, on the other hand, the learned Director of Public Prosecutions, Ministry of Justice, Kwara State on behalf of the State raised a preliminary objection and deduced two issues.
The three issues adumbrated by the appellant as calling for determination are reproduced hereunder inter-alia.
1. Whether exhibit 5 i.e. the purported confessional statement of the appellant could be a safe plank to have anchored the conviction of the appellant by the trial court. This issue relates to ground 1
2. Whether corroboration of a purported confessional statement can be found in the oral testimony of its maker. This issue relates to Grounds 1, 2 and 3.
3. Whether the prosecution proved its case beyond reasonable doubt against the appellant. The issue relates to Ground 2.
The Respondents on their own deduced two issues in its respondent brief of argument dated 26/7/2009 and deemed properly filed and served on 11/11/2010 as follows:
1. Whether from the circumstance of this case, the trial judge was right to have convicted the appellant based on his confessional statement before the court.
2. Whether the learned trial judge was right to have used the evidence of the accused to corroborate his confessional statement.
The appellant thereafter filed an appellant reply brief dated and filed 27/6/2009.
On 11/11/2010 the appellant and respondent counsel adopted their written addresses accordingly. The learned Counsel to the respondent J. A. MUMINI Esq., made an oral application to deem the respondent brief dated 26/06/2009 the notice of respondent intention to rely upon the preliminary objection dated 12/10/2009 and filed on 14/10/2009 as properly filled and served. Same was granted by the court. The appellant counsel A.B. Edun adopted the brief of argument dated 25/01/2010 and filled on 23/02/2010 but deemed filled on 24/03/2010 and his reply brief dated 29/05/2010 and filed same date, and prayed this court to allow his appeal.
The learned DPP adopted his respondent brief dated and filled 26/06/2010 and the respondent notice of intention to raise the preliminary objection dated on 12/10/2009 and filed 14/10/2009. He prayed the court to dismiss the appeal.
Before delving into the determination of the issues as set out by the parties the respondent’s preliminary objection will be considered. Arguing the preliminary objection, the respondent argued the preliminary objection on the ground that the notice of appeal purportedly filed by the appellant herein was not signed by the appellant but by his counsel in violation of the provision of Section 243 of the 1999 Constitution and order 16 Rule 4(1) of the Court of Appeal Rules 2007.
He argued further that, it is clear that it is only the accused that has the right to sign his Notice of Appeal in person and that this was not complied with by the appellant, he thereafter submitted that, failure of the appellant to sign the Notice of Appeal has rendered it incompetent, he cited the cases of STATE VS. JAMAAL (1998) 2 NWLR (pt 473) 383 & 399 and ADEKANYE Vs FRN (2005) 5 NWLR (pt 949) 433 and IKPASA Vs BENDEL STATE (1981) 9 SC to buttress his position.
He finally urged the court to dismiss the Appellant appeal.
The appellant in his reply brief argued that the appellant in person signed the Notice of Appeal as ABOLORE ISIAKA TEWOGBOLA as contained as No. 2 under Commissioner for Justice and Attorney- General, Kwara State and he urged this court to dismiss the preliminary objection as incompetent, an abuse of court process and a flagrant display of a confused house of public prosecution. He argued further that Section 243 of the 1999 Constitution is not apposite in this case and he prayed that this court should dismiss the preliminary objection. In considering the preliminary objection raised by the respondent it will be apt to reproduce the alleged provisions breached.
Section 243 of the 1999 Constitution provides thus:
“Any right of Appeal to the Court of Appeal from the decisions of Federal High Court or a High Court conferred by this Constitution shall be-
(a) exercisable in the case of civil proceedings at the instance of a party thereto, or with the leave of the Federal High Court or High Court or the Court of Appeal at the instance of any other person having an interest in the matter, and in the case of criminal proceedings at the instance of an accused person or, subject to the provisions of this Constitution and any powers conferred upon the Attorney-General of the Federation or the Attorney-General of a State to take over and continue or to discontinue such proceedings, at the instance of such other authorities or persons as may be prescribed.
While Order 16 Rule 4(1) of the Court of Appeal Rules provides inter alia.
“Every notice of Appeal or notice of application for leave to appeal or notice of application for extension of time within which such notice shall be given shall be signed by the appellant himself, except under the provision of paragraph (5) and (6) of the Rule.”
On the preliminary objection filed by the respondent, Edun Esq., argued that authorities cited by the respondent in his preliminary objection was misconceived. He finally prayed this court to overrule the preliminary objection.
I am in tandem with the respondent’s counsel that if a notice of appeal is not signed by the appellant himself in criminal cases the appeal will be incompetent and will be dismissed.
Salami JCA (as he then was) In ADEKANYA Vs FRN (2005) 5 WLR (pt 949) 443 held inter-alia
“In criminal matters, by virtue of Order 4 Rule 4(7) of the court of Appeal Rules, every notice of Appeal or notice of application for extension of time within which such notice shall by given, shall be signed by the appellant himself except under the provisions of paragraph (5) rule (6) of Rule 4(10) of the Court of Appeal Rules….”
It is similarly noticed in plethora of judicial authorities that a notice of appeal in criminal appeal signed by counsel and not the appellant himself is defective. By virtue of Order 4 Rule (1) of the Court of Appeal Rules, the notice of Appeal must be signed by the appellant himself and not the counsel.
I have carefully looked at the notice of Appeal on pages 85-87 of the record of appeal especially the last page i.e. 87 it is written.
Person directly affected by the appeal
NAME ADDRESS
1. Commissioner for Ministry of Justice,
Justice and Ilorin.
Attorney-General of Kwara State SIGNED.
2. Appellant/2nd Accused Edun A. B. & Co.
I/c Edun A.B. & Co. I/c Edun A.B. & Co.
No. 50, Fate Road, No. 50 Fate Road,
Ilorin, Kwara State Ilorin, Kwara State
From the above extract it is observed that Edun A.B, counsel to the appellant signed the notice of Appeal and similarly Abolade Isiaka Tewogbade the Appellant signed the notice of Appeal.
It is crystal clear that the appellant signed the notice of Appeal as provided for by the necessary provision of the law. The signature of the appellant’s counsel is at best a surplusage and not an abuse nor a defect.
In view of the above findings, I hereby dismiss the respondent’s preliminary objection and hold that the judicial authorities as cited by the respondent’s counsel does not assist them.
Now to the main issues for determination, issues 1 & 3 of the appellant and issue 1 of the respondent will be considered together: Arguing issue number one, the learned Counsel for the appellant referred to Sections 36(6) d of the 1999 Constitution, and Sections 189 and 190 of the Evidence Act to the extent that the testimony of Pw.3 at the Lower Court ought to have be expunged by the trial Court from the records in its entirety, because Pw.3 gave evidence at the Lower Court, but refused to come back to Court for cross examination by the accused now appellant. His argument went further that failure of the PW. 3 who tendered the statement of the appellant which was as admitted, but who failed to come to Court to be cross examined is fatal to the party that was denied access to cross examine on the evidence given under examination In chief. He later submitted that the trial Court ought to have expunged from the records, the testimony of Pw.3 essentially with regards to admission of exhibit 5. He referred this Court to the cases of AKPAN VS. STATE (2001) 6 SCNJ 54 and AROGUNDADE VS. THE STATE (2009) January – February Pt. 2.
He further submitted that exhibit 5 was wrongfully admitted as an exhibit, and thus it amounts to procedural irregularity which was fundamental, and has occasioned miscarriage of Justice. Arguing on another terrain, he argued that exhibit 5 which was of three versions as contained on pages 10 -16 should have been expunged or marked rejected or be given no weight at all by the Trial Court. He cited UCHE OBIDIOZO VS. THE STATE (1978) SCNJ 103 to buttress his position that admission of more than one confessional statement at a time is improper and prejudicial.
He further submitted that the non compliance with Section 36(6) (d) of 1999 Constitution, Section 189 and 190 of the Evidence Act wherein the appellant was denied the right to cross examine a witness brought by a Prosecution who tendered Exhibit 5 which the court acted upon to convict the appellant should be rejected or expunged. He referred this Court to the Sister Case of KAZEEM FOLORUNSHO VS. THE STATE (2009) All FWLR (pt. 465) which was decided by this Court. Finally, he prayed this Court to resolve issue one in his favour.
On the appellant’s issue three, he argued that the prosecution called three witnesses and tendered 6 exhibits and that it was only Exhibit 5 that relates to the appellant. He thereafter submitted that the prosecution failed woefully to establish the guilt or link the Appellant to the commission of any crime, and that the respondents failed woefully to prove its case against the Appellant beyond reasonable doubt as required under Section 138(1) of the Evidence Act.
The Appellant further submitted that the Respondent cannot be said to have proved his Case beyond reasonable doubt, and that the evidential burden placed on the Prosecution was not discharged, he buttressed his submission by stating that the Prosecution now Respondent never called any witness to state what transpired on 11.00 hours, and neither was any evidence led to buttress that position. He referred to the case of TAJUDEEN ALABI VS. THE STATE (1993) 9 SCNJ 109 @ 117 – 118 to support his argument that the essential ingredient of the alleged offence was not proved. And that the Lower court should have discharged and acquit the Appellant. He further cited the Cases of IDEMUDIA VS. THE STATE (1999) 5 SCNJ 217, AUTA VS. THE STATE (1975) ANLR 163 2 169, UCHE EDU VS. THE STATE (1993) 8 NWLR (pt. 309) 89 2 100 and NMA DOGO Vs. THE STATE (2001) 1 SCNJ 315 to buttress his position.
The Appellant conceded that an accused can be convicted on his confessional statement alone if positive, proved and direct, but that where the accused denied being the maker, the statement must be tested in accordance to laid down rules as in IDOWU VS. THE STATE and SAMORA MUSTAPHA Vs. THE STATE (2007) 12 NWLR (pt. 1049) 637 where courts were admonished not to act on confessional statement when it is retracted or denied by the accused without first testing it.
He submitted that the authority of SHANDE VS. THE STATE (2004) 4 AFWLR (pt. 223), which the Trial Court relied upon to anchor the Appellant’s conviction have since been overturned by the Supreme Court as reported in (2005) 6 SC pt. 11) 1 – 10 @ 11, and he prayed the Court to resolve issue three in the appellant’s favour.
The Respondent Counsel in his issue 1 argued that the Appellant was convicted based on his confessional statement alone, and submitted that confessional statement if truly made are admissible and relevant, and a conviction can be grounded on same. He cited the Cases of SHANDE VS. THE STATE (2004) ALL FWLR (pt. 223) (1955) @ 1970 – SILAS IKPO VS. THE STATE (1995) 12 SCNJ 64 @ 65.
The Respondent Counsel argued that it is not in dispute that the conviction of the Appellant was based solely upon his confessional statement. He thereafter submitted that it is not erroneous to convict solely on confessional statement, but that it will be very convenient to seek other independent evidence outside the confession, particularly where the Appellant attempted to challenge the confessional statement. He thereafter prayed this court to resolve this issue in favour of the Respondent.
Before delving into the argument of Counsel on the first and third issue of the Appellant and the Respondent issue 1, it is pertinent to note that the crux of all the arguments and submission of learned Counsel is on Pw.3 and Exhibit 5, with which the Appellant was convicted.
On these issues that is merged into one, on whether the learned trial Judge was right in holding that the Prosecution proved its case beyond reasonable doubt, the learned Counsel to both parties has rightly stated the position of the law on the burden and standard of proof in criminal cases as encapsulated in Sections 36(5) of the 1999 Constitution of the Federal Republic of Nigeria, and 138 of the Evidence Act. By these provisions, an accused is presumed innocent until proven guilty, and the burden is always on the prosecution to prove the essential ingredients of the offence for which he is charged beyond reasonable doubt with credible and reliable evidence juristic words of Lord Sankey in WOOLMINGTON VS. DIRECTOR OF PUBLIC PROSECUTTON (1935) AC 402 (2).
Where the Prosecution fails to discharge this burden and onerous duty, a Court of Law before whom such an accused is arraigned shall have no other choice than to discharge and acquit him, and if the Court proceeds to convict the accused upon the failure of the Prosecution to establish the guilt of the accused beyond reasonable doubt, the Appellate Court shall quash such conviction, and discharge and acquit the accused. See the Cases of OCHEMAJE VS. THE STATE (2008) 36 NSCQR (pt.2) 826 @ 881 per ADEREMI JSC, NDUKURE VS. THE STATE (2009) 37 NSCQR 425 @ 459 – 460, AROGUNDADE VS. THE STATE (2009) ALL FWLR (pt. 469) 409, ABINFON VS. THE STATE (2009) ALL FWLR (pt. 471) 873 @ OMOLOLA Vs. THE STATE (2009) ALL FWLR (pt.464) 1490 @ 1603 – 1604 and ONACHUKWU VS. THE STATE (1998) 4 SCNJ 36 49.
In the recent case of ALAMU VS. THE STATE (2009) 10 NWLR (Pt. 1148) 31 @ pages 46 paragraphs E – F, the Eminent Jurist MUKHTAR JSC opined thus inter-alia.
“In a criminal case, where it is encumbered on the prosecution to prove it’s case beyond reasonable doubt all surrounding circumstances and the credible unchallenged evidence before the Court must be perused carefully. The Law is settled that in a situation where the Court entertains even the slightest of doubt, that should be resolved in favour of the accused person. See OFARLETE VS. THE STATE (2000) 12 NWLR (Pt. 681) 415”
It is against this background that we shall now determine whether the Prosecution discharged the burden cast upon it under the Constitution and Evidence Act to establish the guilt of the accused person thereby warranting his conviction and eventually sentence for belonging to Secret Cult contrary to Section 11 of the Secret Cult and Secret Societies in Educational Institution (Prohibition) Law 2004 of Kwara State.
It is worthy to Note that the Appellant was convicted by the trial Court based on the evidence of Pw.3 and Exhibit 5 that was tendered through him.
Shun of any embellishment, Pw.3 was not reproduced at the trial Court for cross-examination after being examined in chief by the Prosecution now Respondent for the Appellant to cross examine Pw.3. This singular act of the Respondent in breaching the provision of Section 36 (6) (d) which provides that:
“Every person who is charged with criminal offence shall be entitled to:- Examine in person or by his legal practitioners the witness called by the prosecution before any Court of Tribunal”.
and Section 189 of the Evidence Act which provides thus:
“witness shall be first examined in chief then if any other party so desired cross examined”, then Section 190
“In criminal proceedings where more than one accused is charged at the same time, each accused shall be allowed to cross examine a witness called by the Prosecution before the witness is re-examined”.
With all sense of responsibility, the platform on which the Lower Court placed his reasoning for the conviction is weak and unjustifiable. A court or Tribunal should never act on the evidence of a witness whom the other party want to cross examine, but cannot be reproduced or located for cross examination after he must have been examined in chief. The most honourable thing for the Lower Court would have been that of the evidence of PW3, who tendered Exhibit 5 should have been expunged from the record of the court or the Lower court should not have attached any weight to it. Because the essence of cross examination is to test the veracity and accuracy of the witness and not just a jamboree or merry making. A witness who fails to make himself available for cross examination should know that all his evidence goes to naught.
In view of the above reasoning, there is nothing before the court to act on to secure the conviction of the Appellant.
From the evidence of the Prosecution witnesses, the onus as bestowed on the Prosecution to establish, they have failed to do this, and the learned trial Judge was in error to have convicted the Appellant in the absence of any credible evidence against him. See THE STATE VS. AZEEZ (2008) 4 SC, 188 @ 219.
To buttress this view, the apex court in the case of Eme Orji vs The State reported in (2008) 10 NWLR (part 1094) & (2008) 3-4 S.C 198, Per ONNOGHEN JSC had this to say “it is settled law that it is the duty of the prosecution to prove the charge against an accused person by calling or producing credible admissible evidence to establish the ingredients of the offence with which the accused person stands charged. Also a settled principle of law is with respect to the standard of proof required of the prosecution in proving the charge against the accused person, the principle being that the prosecution must establish the guilt of an accused person beyond reasonable doubt. In order for the trial court to determine whether the legal duty imposed on the prosecution has been duly discharged, the trial court must consider the totality of the evidence before the court after which the court determines the issue as to whether or not the case against the accused person was made out or established beyond reasonable doubt – see Obue vs. State (1976) All NLR 139.
As stated earlier in this judgment, in the instant case, the case of the prosecution against the appellant is based on circumstantial evidence. It is however, settled law that for circumstantial evidence to ground a conviction in a criminal trial, especially a trial for a charge of murder as in the instant case on appeal, the circumstantial evidence must be cogent, complete and unequivocal. It must be compelling and lead to the irresistible conclusion that the prisoner or in the instant case, appellant, and no one else is the murderer. The facts must therefore be incompatible with the innocence of the accused and, also, incapable of explanation upon any other reasonable hypothesis than that of his guilt. It is also trite law, that where circumstantial evidence is capable of two possible interpretations, one of which is against while the other in favour of the accused, then in that circumstance, there has been no proof beyond reasonable doubt and as such the charge is said not to have been proved in which case the accused person is entitled to be found not guilty, discharged and acquitted of the offence charged – See State vs Kura (1975) 2 S.C 83.”
In the light of the above, the first and third issue of the Appellant and the first issue of the Respondent which were taking together are hereby resolved in favour of the Appellant to the extent that the confessional statement upon which the Appellant was convicted is expunged, and I therefore hold that the Prosecution has failed to prove its case beyond reasonable doubt.
ISSUE TWO
On Appellant issue two respondents issue two on “whether corroboration of a purported confessional statement can be found in the oral testimony of its maker” or as carved by the Respondents thus “whether the learned trial Judge was right to have used the evidence of the accused to corroborate his confessional statement.”
The appellant argued this issue at length, but the Respondent conceded to this, and admitted that the position has been laid to the rest in the sister case of KAZEEM VS. THE STATE (2009) ALL FWLR 465. He admitted that it was wrong for the learned trial Judge to have corroborated the confessional statement of the appellant with his evidence in Court. The Director of Public Prosecution – J.A. MUMINI ESQ., should be commended for his great sense of responsibility and hard work. He is a worthy Prosecutor, and not a Persecutor for not re-arguing this issue thus did not misdirect the court nor did he constitute himself as a clog in the wheel of justice.
At this juncture, I need to let it be known for the umpteenth time that the fact that an offence is rampant, and causes harm to the community will not mean that a court will close its eyes to justice, rather the constitution which presume an accused person innocent until proven guilty should be handled with all sacredness. The mere fact that a trial Judge thinks an accused has committed grievous offence, but as a Judge, he can only act based on direct positive and credible evidence to secure conviction.
It is not proper for the Judge to use the evidence of the accused to corroborate his confessional statement more especially when the accused person maintains a firm denial of the facts leading to his conviction. In order to secure a conviction, a corroboration of his alleged confessional statement is required. In all cases where the law provides that corroboration is necessary, a conviction of an accused can only be valid when there is such corroboration evidence. See IKO vs THE STATE (2001) 14 NWLR (PT 732) (2001) 7 S.C. (PT. 11) 115, R V BASKERVILLE (1916-1917) ALL E.R Reprint 38 @ 43. See also D.P.P. vs HESTER (1973) AC 296 @ 315 where LORD MORRIS said “The purpose of corroboration is not to give validity or credence to evidence which is deficient or suspect or incredible but only to confirm and support that which as evidence is sufficient and satisfactory and credible: and corroborative evidence will only fill its role if it itself is completely credible evidence.”
See also Ogunbayo v. State (2007) 8 NWLR (Pt.1035), (2007)3 S.C. (Pt II) 1, (2007) 3 FWLR 374, Mbele v. State (1990) NWLR (Pt.145) 2, (1990) 7 S.C. (Pt I) 1, Nwankwoala v. State (2005) 12 NWLR Pt. (940) P.637 @ 679, Para G, Sanni v. State (1993) 4 NWLR (Pt.285) p.99 @ 119, para A.
This court frowns seriously at the menace that cultism has created in our institution of higher learning. Though it may seem, that the accused/appellant is walking away scot free having succeeded in this appeal due to the prosecution’s inability to prove one or more elements of the offence. Cultism must be eradicated in our society for it is a cankerworm that is destroying the fabric of our very existence. It has hampered the growth of our Nation and destroyed many promising lives. This court uses this medium to warn would be cultist or existing cultist that the long arm of the law would catch up with them one day. A word is enough for a wise.
Unless there is cogent evidence before a court of law it is not permissible under a civilized democracy such as ours as to find the person guilty of criminal offence without ensuring that he had opportunity of confronting his accusers by way of cross examination of their evidence before a court of law. Section 36(1), (2), (3), (4) & (5) of 1999 Constitution of Federal Republic of Nigeria.
It is a great setback for justice, for an accused’s extra judicial statement which was objected to at the earlier time, but which the witness that tenders same refuses to make himself available for trial/cross-examination was later relied upon to convict the appellant is absurd and unimaginable. Sometimes I feel upset in instances where it is clear an offence could have been committed by an accused person yet still, the fact before the court may not warrant the conviction. It is clear that the onus placed on the prosecution is indeed very high and sometimes the law being an ass would allow a criminal to go scot free because of the onus placed on the prosecution to prove the guilt of accuse beyond reasonable doubt. That is our law enshrined even in the constitution and so we are bound by it.
Accordingly, I am in total agreement with the submission of learned Counsel for the appellant that the Prosecutor had failed to prove any of the essential ingredients of the offence of engaging in, belonging to, and associating with cultism as charged. He ought to be discharged and acquitted.
It is for this reason and fuller reasons I articulated above, that I shall allow this Appeal and set aside the decision of the Lower Court convicting and sentencing the appellant to 10 (ten) years imprisonment.
I hereby order that the appellant be discharged and acquitted.
IGNATIUS IGWE AGUBE, J.C.A.: I agree.
TIJJANI ABDULLAHI, J.C.A.: I have read in advance the lead judgment of my learned brother, Denton-West, JCA, just delivered in this appeal. I entirely agree with the reasoning and conclusion reached in the judgment that the appeal is pregnant with a lot of merit and should be allowed. However by way of emphasis, I add a few words.
It is settled beyond peradventure that a witness cannot corroborate himself. This is to say the least is contrary against self incrimination to found corroboration of the statement of the accused in his oral testimony. Corroborative evidence apart from being independent must conform in particular material, not only that an offence has been committed but irresistibly point or associate the accused person with the commission of the crime.
Again, I am of the view that compliance with the provisions of the law negates the appraisals of the trial court at pages 76 – 79. See the cases of Udediba vs. The State (1996) 11 SC 133 at 141; Bolakale vs. The State (2006) 1 NWLR (Pt.962) 507 and Idowu vs. The State (2007) 7 SCNJ 245 at 360.
I am also of the firm view that the oral testimony of the appellant and Exhibit 5 are at variance and since a witness cannot corroborate himself, this appeal must succeed.
For these reasons and the more detailed one in the lead judgment, I too allow the appeal and set aside the conviction dished out by the trial judge.
Appearances
Edun A. B.
Adeyi AbdulwasiuFor Appellant
AND
Jimoh Adebimpe Mumini (DPP);
A. A. Daibu (SSC)For Respondent
