SEGUN ODUNAYO v. THE STATE
(2013)LCN/6333(CA)
In The Court of Appeal of Nigeria
On Monday, the 24th day of June, 2013
CA/I/112/2011
JUSTICES
MONICA B. DONGBAN-MENSEM Justice of The Court of Appeal of Nigeria
ADAMU JAURO Justice of The Court of Appeal of Nigeria
OBIETONBARA DANIEL-KALIO Justice of The Court of Appeal of Nigeria
Between
SEGUN ODUNAYO Appellant(s)
AND
THE STATE Respondent(s)
RATIO
WHETHER OR NOT AN ATTORNEY-GENERAL OF THE STATE CAN PROSECUTE OFFENCES UNDER THE ROBBERY AND FIREARMS DECREE
The position of the law directly on the issue under consideration has been adumbrated by the Supreme Court in Emelogu v. The State (1988) 1 NWLR (pt. 78) 524. In the aforementioned case, the Apex Court held that the Attorney General of Imo State is competent to prosecute offences under the Robbery and Firearms Decree and the High Court of Imo State had the jurisdictional competence to try the offences. In the lead judgment, Eso, JSC (of blessed memory) on pages 539 and 540 stated thus:
“I agree with learned Attorney-General of the Federation when he said in his Brief that the amendment to the Robbery and Firearms (Special Provisions) 1970 No.47 by the constitution of the Federation of Nigeria (Certain Consequential Repeals etc) Decree 1979 No.105, by repeal of section 6 of the former Decree, did not in fact remove from the Attorney-General of the State the power to institute proceedings under the 1970 No.47 Decree having regards to section 191 of the 1979 Constitution.”
In his contribution, Nnamani, JSC on page 543 stated thus:
“It follows from my view that Decree No.47 of 1970 as amended, being now state Law, is a law which can be made by the state House of Assembly. As earlier mentioned. Decree No.105 of 1979 had made provision for all offences of armed robbery to be tried in the High Court of a State.”
Karibi-Whyte, JSC in his contribution on page 554 said:
“My answer to the second question again is that the Attorney-General of Imo state has locus standi to institute criminal proceedings under the Robbery and Firearms (Special Provisions) Act No.47 of 1970. The offence being a law of the House of Assembly of the state, the question of delegation of authority from the Attorney-General of the Federation did not arise. The cases cited by counsel for the appellant are therefore inapplicable.”
My Lord Nnaemeka-Agu, JSC had this to say on page 599:”By Decree No.48 of 1971 the Attorney-General of the state replaced the D.P.P. as the highest decision making authority in the state on the matter. By Decree No.29 of 1974 the initiation of prosecution by the Attorney-General of the State reaffirmed S.6(2) and (3). But the Attorney-General of the Federation was, with approval of the Federal Executive council, by section 6(1) of the Decree empowered to make Rules as to the procedure for the conduct of the prosecution. This he did by promulgating the Robbery and Firearms Tribunal (Procedure) Rules, 1975 published as L.N.56 of 1975. It is noteworthy that by rule 19, the prosecution is by the Attorney-General of the State, where the tribunal is constituted or where there is no Attorney-General, the Solicitor-General or an officer in the Ministry of Justice in the State authorized on their behalf by the Attorney-General. Thus, it can be said that all through, by all the relevant legislation substantive and adjectival, an Armed Robbery and Firearms from 1970 although passed by the Federal Government and its functionaries, it was intended that the institution of proceedings under the Decree shall be done by State functionaries by or at the instance or directive of the Attorney-General. ” PER JAURO, JC.A.
THE MEANING OF THE TERM “ALLOCUTION”
Etymologically, to allocute in law means “to speak out formally.” In the field of apologetics, allocution is generally done in defence of a belief. Blacks Law Dictionary, 7th Edition, defined allocution as an unsworn statement from a convicted defendant to the sentencing judge or jury in which the defendant can ask for mercy, explain his or her conduct, apologise for the crime, or say anything else in an effort to lessen the impending sentence. In Nigeria the term “allocutus” is used, and simply put, it is a plea in mitigation of sentence. It is normally made after conviction but before sentence is passed, the court will inquire from the convict whether he has anything to say in mitigation of sentence or why sentence should not be passed on him according to law. See Akoma Yougreen v. State (1978) 11 FCA. The plea can be made by the convict in person or through a witness to give evidence of previous good character and good works of the convict. Where evidence of good character is given by way of allocutus, the prosecution is also at liberty to produce evidence of previous conviction.The contention of the appellant is that the failure of the trial court to calf for allocutus has infringed on the appellants right to fair hearing and his defence. Section 247 of the Criminal Procedure Law of Oyo State, Cap. 39, Laws of Oyo State of Nigeria 2000, made provision for allocutus as follows:“If the court convicts the accused person or if he pleads guilty, it shall be the duty of the registrar to ask the accused whether he has anything to say why sentence should not be passed on him according to law but the omission of the registrar so to ask him or his being so asked by the judge or magistrate instead of the registrar shall have no effect on the validity of the proceedings.”
(Emphasis mine). PER JAURO, JC.A.
WHETHER OR NOT THE FAILURE OF THE COURT TO CAK FIR ALLCTUS HAS EFFECT ON THE VALIDITY OF THE CRIMINAL PROCEEDINGS
By section 247 of the Criminal Procedure Law earlier reproduced, the failure to call for allocutus shall have no effect on the validity of the proceedings. In State v. Babangida John (2013) LPELR-20590 (SC), the Apex Court per Rhodes-Vivour JSC on page 25 paragraphs D-G stated thus:
“Once a judge finds an accused person guilty of culpable homicide under section 221 of the Penal Code, the only sentence he can pronounce is death. A judge has no jurisdiction to listen to allocutus and no discretion to reduce death sentence to a term of years once the accused person has been found guilty under section 221 of the Penal Code. The sentence of 14 years imprisonment after finding the accused/respondent guilty of culpable homicide contrary to section 221 of the Penal code was wrong, it is a material irregularity in the proceedings of the trial court and this court could remedy it so that substantial justice might be done.” PER JAURO, JC.A.
CONDITION TO BE FULFILLED TO DETERMINE IF A CONFESSIONAL STATEMENT IS TRUE
Where a confessional statement is denied or retracted, it is desirable to have corroborative evidence no matter how slight before convicting on such statement. The court has a duty to test the veracity or otherwise of the statement by comparing it with other facts outside the statement to see whether they support, confirm or correspond with the statement, In a way, the court must scrutinize the statement to test its truthfulness or otherwise in line with available evidence. See R v. Sykes (1913) 18 CAR 233, Kazeem v. State (2009) All FWLR (pt. 465) 1749, Dawa v. State (1980) 8-11 SC 236, Ikpasa v. A-G Bendel (1981) 9 SC 7, Bolanle v. State (2005) 7 NWLR (pt. 925) 431 at 498, Obisi v. Chief of Naval Staff (2002) 2 NWLR (pt. 751) 400 at 418-419.
In determining whether a confession is true, the test as laid down in R v. Sykes (supra), to the following effect is adopted:
i. Is there anything outside the confession to show that it is true?
ii. Is the statement corroborated?
iii. Is the statement of fact made in the confession, so far as can be tested, true?
iv. Does the accused person have the opportunity to commit the offence charged?
v. Was the confession possible?
vi. Is the confession consistent with other facts which have been ascertained and proved at trial? PER JAURO, JC.A.
ADAMU JAURO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Ogun State, Ota Judicial Division delivered on 21st December, 2010 by Hon. Justice A. O. Asenuga in Suit No. HCT/12R/2007.
A resume of the facts culminating in this appeal is hereby made as follows: The appellant Segun Odunayo and two others, namely Kazeem Akintunde and Ahmed Salami were arraigned before the Ogun State High Court, Ota Judicial Division on a three count charge of Conspiracy to commit armed robbery and armed robbery. The said offences being contrary to Section 6 (b) and 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap. R. 11, Laws of the Federation of Nigeria, 2004. Trial commenced in earnest on 21st November, 2008 with the appellant and the two other accused persons pleading not guilty to the charges. The prosecution called four witnesses and tendered exhibits in support of its case. The appellant opened his defence on 9th November, 2009 and testified as DW1, while his mother Ajike Odunayo testified as DW2. Upon the conclusion of hearing written addresses were ordered on 5th May, 2010 and same adopted on 18th October, 2010. In an eight paged judgment delivered on 21st December, 2010 the appellant and the other two accused persons were found guilty as charged and sentenced to death by hanging, as follows:
“It is therefore my findings that in all the circumstances of this case, all the accused persons are guilty of the offences of conspiracy to commit armed robbery and armed robbery as charged. The punishment for the offence under the law is death. All the accused persons are hereby sentenced to death by hanging.
See page 123 of the record of appeal.
The appellant evidently displeased and dissatisfied with the aforementioned decision of the lower court challenged same vide a notice of appeal dated and filed 30th December, 2010. See page 125 of the record. By leave of court granted on 12th February, 2013 the original notice of appeal was amended and the amended notice of appeal is anchored and predicated upon ten grounds of appeal. In strict compliance with the Rules of Court, briefs of argument were filed and exchanged. The appellant’s brief of argument was filed on 12th November, 2012 but deemed properly filed and served on 12th February, 2013. The Respondent’s brief of argument is dated 14th March, 2013 and filed on l8th March, 2013. Mr. A. A. Olatunji leading Mrs. O. E. Ige and A. Abas Olisa Esq. for the appellant adopted the appellant’s brief of argument in urging the Court to allow the appeal. Mr. B.A. Adebayo, DDPP Ogun State leading Mr. W. A. Onawale, State Counsel, for the respondent adopted the respondent’s brief in urging the Court to dismiss the appeal in its entirety and affirm the decision of the trial court.
The appellant distilled five issues for determination from the grounds of appeal filed. The said issues as contained on pages 3 and 4 of the appellant’s brief are hereby reproduced:
“1. Whether having regard to the offences alleged against the Appellant and the other co-accused persons, being federal offences, the entire proceedings and Judgment (including the convictions and sentences contained therein) are not a nullity. (Ground 10 of the Amended Notice of Appeal)
2. Whether the trial court was right in relying on Exhibits C, C1 and G and the other alleged confessional statements of the 2nd and 3rd accused persons in convicting the appellant. (Grounds 2, 3 and 4 of the Amended Notice of Appeal)
3. Whether in view of the evidence led at the trial by the parties, the Prosecution proved its case against the Appellant beyond reasonable doubt.
(Grounds 5, 6 and 7 of the Amended Notice of Appeal)
4. Whether given the approach adopted by the learned trial Judge in his Judgment, he evaluated or properly evaluated the evidence before him in reaching his decision to convict the Appellant of conspiracy and armed robbery. (Grounds 1 and 8 of the Amended Notice of Appeal)
5. Whether in view of the Appellant’s right to fair hearing, the trial Court was right in proceeding to sentence the appellant to death after conviction without affording him right of allocutus. (Ground 9 of the Amended Notice of Appeal.)
The respondent on its part, nominated four issues for determination in response to the appellant. The said issues as contained on page 2 of the Respondent’s brief are as follows:
“(i) Whether the Attorney-General of Ogun State can prosecute offences under the Robbery and firearms Act 2004 without a fiat or delegation from the Attorney-General of the Federation.
(ii) Whether prosecution has proved its case against the Appellant beyond reasonable doubt.
(iii) Whether the learned trial judge properly and adequately evaluated the evidence led at the trial.
(iv) Whether the sentence of the Appellant to death without allocutus was a breach of his right to fair hearing which vitiate the trial”
The issues for determination submitted by both parties to this appeal are similar in effect and content, hence the issues as postulated by the appellant will be adopted in the resolution of this appeal. The serial order of treating the issues in this judgment will be as follows: Issue one will be treated first, followed by issue five and thereafter issue two, three and four will be treated together.
Issue One
The appellant stated that the offences for which he was charged are punishable under the Robbery and Firearms (Special Provisions) Act. It was contended that the said Act is a Federal legislation deemed to have been made by the National Assembly, pursuant to Section 4 (1) to (4) and paragraph 2 of Part I of the Second Schedule of the 1999 Constitution (as amended). The appellant posited that the said Robbery and Firearms Act is one which the National Assembly could make as it falls within its exclusive legislative competence under paragraph 2 of Part I of the Second Schedule to the constitution. The appellant made reference to Section 174 (1) (a) and Section 211 of the 1999 Constitution on the powers of the Attorney General both Federal and State. The appellant posited that the aforementioned Constitutional provisions are very clear and unambiguous, hence must be given their natural and ordinary meaning. In support, reference was made to the following cases: FRN v. Osahon (2006) 5 NWLR (Pt. 973) 361 at 436, Lawal v. G.B. Ollivant (1972) 3 SC 124 at 137, Nnonye v. Anyichie (2005) 1 SCNJ 306 at 316.
Based on the aforementioned constitutional provisions, it was contended that the Robbery and Firearms Act being a Federal Legislation, only the Attorney General of the Federation or any officer under him could competently prosecute any offence thereunder. It was further submitted that where a state Attorney General purports to prosecute without fiat or delegation of powers, such proceedings and or judgment will be unconstitutional, null, void and of no effect whatsoever. In support, reference was made to the following cases: A. P. Anyebe v. State (1986) 1 NWLR (pt. 14) 39 at 42-46, Attorney-General Kaduna State v. Mallam Umaru Hassan (1985) 2 NWLR (pt. 8) 483. The appellant argued that the instant case was instituted by the DPP Ogun State and there was nothing to show that there was fiat from the Attorney General of the Federation. The appellant therefore urged the court to hold that there was no legal basis for the prosecution of the appellant and to declare the proceedings and judgment a nullity.
The respondent submitted that armed robbery is not a matter on the exclusive or concurrent legislative list but is a residual matter. It was contended that the Robbery and Firearms (Special Provisions) Act, was made by the Federal Government of Nigeria for the use of the states. In support, reference was made to Sections 7, 9 and 10 of the Act and the following cases: Emelogu v. State (1988) 2 NWLR (pt. 78) 524, Aminu Tanko v. State (2009) 4 NWLR (Pt. 1131) 430. The respondent urged the Court to hold that the Attorney General of Ogun State can prosecute the appellant and the trial was not a nullity.
The complaint of the appellant in a nutshell under this issue is that the Attorney General of Ogun State lacks competence to prosecute offences under the Robbery and Firearms Act. The said complaint is anchored on the belief of the appellant that armed robbery is a federal offence within the exclusive legislative competence of the National Assembly, hence only the Attorney General of the federation can prosecute such offences, alternatively where he delegates such authority to an Attorney General of a state. I have gone through the Exclusive Legislative
List as contained in Part I of the Second schedule to the Constitution, the offence of Armed Robbery is however not within the listed items. Paragraph 2 of Part 1 of the Second Schedule referred to by the appellant, does not say anything about armed robbery but rather provides for “Arms, Ammunition and Explosives”. To my mind, what has been listed in paragraph 2, namely “Arms, Ammunition and Explosives” cannot by any stretch of imagination be extended to cover armed robbery. There is therefore nothing in the exclusive Legislative List that gives the National Assembly exclusive power to legislate on armed robbery.
The position of the law directly on the issue under consideration has been adumbrated by the Supreme Court in Emelogu v. The State (1988) 1 NWLR (pt. 78) 524. In the aforementioned case, the Apex Court held that the Attorney General of Imo State is competent to prosecute offences under the Robbery and Firearms Decree and the High Court of Imo State had the jurisdictional competence to try the offences. In the lead judgment, Eso, JSC (of blessed memory) on pages 539 and 540 stated thus:
“I agree with learned Attorney-General of the Federation when he said in his Brief that the amendment to the Robbery and Firearms (Special Provisions) 1970 No.47 by the constitution of the Federation of Nigeria (Certain Consequential Repeals etc) Decree 1979 No.105, by repeal of section 6 of the former Decree, did not in fact remove from the Attorney-General of the State the power to institute proceedings under the 1970 No.47 Decree having regards to section 191 of the 1979 Constitution.”
In his contribution, Nnamani, JSC on page 543 stated thus:
“It follows from my view that Decree No.47 of 1970 as amended, being now state Law, is a law which can be made by the state House of Assembly. As earlier mentioned. Decree No.105 of 1979 had made provision for all offences of armed robbery to be tried in the High Court of a State.”
Karibi-Whyte, JSC in his contribution on page 554 said:
“My answer to the second question again is that the Attorney-General of Imo state has locus standi to institute criminal proceedings under the Robbery and Firearms (Special Provisions) Act No.47 of 1970. The offence being a law of the House of Assembly of the state, the question of delegation of authority from the Attorney-General of the Federation did not arise. The cases cited by counsel for the appellant are therefore inapplicable.”
My Lord Nnaemeka-Agu, JSC had this to say on page 599:
“By Decree No.48 of 1971 the Attorney-General of the state replaced the D.P.P. as the highest decision making authority in the state on the matter. By Decree No.29 of 1974 the initiation of prosecution by the Attorney-General of the State reaffirmed S.6(2) and (3). But the Attorney-General of the Federation was, with approval of the Federal Executive council, by section 6(1) of the Decree empowered to make Rules as to the procedure for the conduct of the prosecution. This he did by promulgating the Robbery and Firearms Tribunal (Procedure) Rules, 1975 published as L.N.56 of 1975. It is noteworthy that by rule 19, the prosecution is by the Attorney-General of the State, where the tribunal is constituted or where there is no Attorney-General, the Solicitor-General or an officer in the Ministry of Justice in the State authorized on their behalf by the Attorney-General. Thus, it can be said that all through, by all the relevant legislation substantive and adjectival, an Armed Robbery and Firearms from 1970 although passed by the Federal Government and its functionaries, it was intended that the institution of proceedings under the Decree shall be done by State functionaries by or at the instance or directive of the Attorney-General. ”
In Tanko v. State (2009) 4 NWLR (pt. 1131) 430 the Apex Court further re-affirmed the position of the law as expounded in Emelogu v. The State (supra), to the effect that the Attorney General of Niger State is competent to prosecute offenders under the Robbery and Firearms (Special Provisions) Act. The Apex Court in Tanko v. State (supra) on pages 454 to 455, Per Aderemi, JSC stated thus:
“The grouse of the appellant in this appeal, as I have pointed out, is that the officials of the Ministry of Justice of a State cannot prosecute a case of armed robbery in a State High Court. Let me quickly say that I have had a close study of the contents of second schedule Parts I and II, and I agree with the submission of the respondent that the offence of armed robbery is neither in the exclusive list of the concurrent list. It therefore can be at other places other than the realm of residuary matters which is within the competence of a State Assembly to legislate on. Niger state has in sections 296 to 307 of its Penal Code, Cap.94 legislated on robbery. Before I come to the logical conclusion which ought to be reached from the combination of all the provisions of the Constitution and Act which I have reproduced supra, I wish to make reference to section 211(1) of the constitution of the Federal Republic of Nigeria, 1999 dealing with public prosecutions, it reads:
“211(1) The Attorney-General of a State shall have power –
(a) To institute and undertake criminal proceedings against any person before any court of law in Nigeria other than a court martial in respect of any offence created by or under any law of House of Assembly.”
From the provisions quoted supra, the only conclusion which must be reached and which I now reach is that not only does a State High Court have the jurisdiction to try cases relating to armed robbery, the officials of the Ministry of Justice of a State are eminently qualified to prosecute the offence of armed robbery in any High court of a State. Let me also add that it will even be incongruous to the concept of federalism, which we practice, to contend otherwise.”
Consequent upon the foregoing, the Hon. Attorney General Ogun State is eminently qualified to prosecute offenders under the Robbery and Firearms (Special Provisions) Act. Issue one fails and is resolved in favour of the respondent.
Issue Five
The complaint of the appellant under this issue is that the trial court was wrong, in proceeding to sentence the appellant to death after conviction without affording him right of allocutus. The appellant submitted that the allocutus stage of a criminal trial is one which affords a convict the opportunity to state extenuating or mitigating circumstances which could assist the court in arriving at a just sentence. It was contended that the right to allocutus is statutory, as it is provided in Section 247 of the Criminal Procedure Law which is identical to Section 197 (1) of the Criminal Procedure Act Cap. 41 LFN 2004. The appellant posited that by the aforementioned Section 247 CPA, the law recognizes allocutus as an integral part of hearing procedure in criminal trial and sees it as being part of the convicts defence. It was submitted that the grant of right to allocutus is one of the envisaged right by Section 36(6) of the 1999 Constitution.
It was further submitted that in view of Section 36(6) of the Constitution, the right to allocutus is not only statutory but constitutional.
Hence it was argued that the failure to accord the appellant that right is a deprivation to the appellant of a vital facility to put forward his case before the trial court. It was contended that it was a flagrant violation of the appellant’s right to fair hearing, more so as right to fair hearing includes right to be heard at any stage of the proceedings. In support, reference was made to the following case: Ndudauba v. Kolomo (2005) 2 MJSC 1 at 23 paragraph B, Agbahomovo v. Eduyebe (1999) 3 NWLR (pt. 594) 170. It was further argued that a breach of fair hearing is fatal to the proceedings and judgment of the court and renders them liable to be set aside or declared a nullity. In support, reference was made to the following cases: Salu v. Egeibon (1994) 6 NWLR (Pt. 348) 23 at 44, Ndukauba v. Kolomo (2005) 2 MJSC 1 at 14 paragraphs A-F, Oyeyemi v. Commisioner for Local Government Kwara State (1992) 2 NWLR (Pt. 226) 661 at 685, Tsokwa Motors (Nig.) Ltd. v. UBA Plc (2008) 2 MJSQ 104 at 123 paragraph A, Olumesan v. Ogundepo (1996) 2 NWLR (Pt. 433) 628. The appellant urged the court to resolve the issue in his favour and set aside the judgment of the trial court.
The respondent stated that allocutus is a plea by the convict in mitigation of punishment. It was submitted that allocutus may be relevant in a situation where the punishment is discretionary. It was however argued by the respondent that where the punishment is strict and admits no discretion like murder and armed robbery which are capital offences, failure of the court to allow allocutus has no effect on the judgment. It was further argued that even where the court allows allocutus, it cannot reduce the sentence, the appellant having been found guilty of the offence that carries capital punishment. It was contended that failure to allow allocutus cannot amount to a denial of fair hearing as allocutus can only be made after conviction. The respondent urged the court to resolve the issue in its favour.
Etymologically, to allocute in law means “to speak out formally.” In the field of apologetics, allocution is generally done in defence of a belief. Blacks Law Dictionary, 7th Edition, defined allocution as an unsworn statement from a convicted defendant to the sentencing judge or jury in which the defendant can ask for mercy, explain his or her conduct, apologise for the crime, or say anything else in an effort to lessen the impending sentence. In Nigeria the term “allocutus” is used, and simply put, it is a plea in mitigation of sentence. It is normally made after conviction but before sentence is passed, the court will inquire from the convict whether he has anything to say in mitigation of sentence or why sentence should not be passed on him according to law. See Akoma Yougreen v. State (1978) 11 FCA. The plea can be made by the convict in person or through a witness to give evidence of previous good character and good works of the convict. Where evidence of good character is given by way of allocutus, the prosecution is also at liberty to produce evidence of previous conviction.The contention of the appellant is that the failure of the trial court to calf for allocutus has infringed on the appellants right to fair hearing and his defence. Section 247 of the Criminal Procedure Law of Oyo State, Cap. 39, Laws of Oyo State of Nigeria 2000, made provision for allocutus as follows:
“If the court convicts the accused person or if he pleads guilty, it shall be the duty of the registrar to ask the accused whether he has anything to say why sentence should not be passed on him according to law but the omission of the registrar so to ask him or his being so asked by the judge or magistrate instead of the registrar shall have no effect on the validity of the proceedings.”
(Emphasis mine)
As earlier said in this judgment, allocutus is a plea in mitigation of sentence and never a defence. Hence the contention of the appellant that failure to call for allocutus has obstructed his defence is therefore of no moment. The stage at which allocutus is made is after conviction before sentence hence I do not see how the failure to call allocutus would have affected the appellant’s right to fair hearing. The appellant was charged and convicted. The punishment for the said offence is fixed by law and admits no discretion, being death penalty. In such a circumstance, the failure of the court to allow for allocutus, has no effect on the judgment, because the court cannot reduce the sentence. By section 247 of the Criminal Procedure Law earlier reproduced, the failure to call for allocutus shall have no effect on the validity of the proceedings. In State v. Babangida John (2013) LPELR-20590 (SC), the Apex Court per Rhodes-Vivour JSC on page 25 paragraphs D-G stated thus:
“Once a judge finds an accused person guilty of culpable homicide under section 221 of the Penal Code, the only sentence he can pronounce is death. A judge has no jurisdiction to listen to allocutus and no discretion to reduce death sentence to a term of years once the accused person has been found guilty under section 221 of the Penal Code. The sentence of 14 years imprisonment after finding the accused/respondent guilty of culpable homicide contrary to section 221 of the Penal code was wrong, it is a material irregularity in the proceedings of the trial court and this court could remedy it so that substantial justice might be done.”
The failure of the court to call for allocutus has no effect on the validity of the proceedings. See Section 247 CPL and also page 821 of “Practical Approach to Criminal Litigation in Nigeria” 1st Edition, 2011 by J. A. Agaba. Consequent upon the foregoing, this issue also fails and is hereby resolved in favour of the respondent.
Issues Two, Three and Four
The complaint under issue two is that the trial court was wrong in convicting the appellant based on the purported confessional statements made by him, and other accused persons. The purported confessional statements made by the appellant were admitted in evidence as exhibits C, C1 and G. It was contended that the lower court made a fatal misdirection by concluding that the appellant and other accused persons merely challenged the voluntariness of exhibits C, C1, D, D1 and E, E1 and retracted the contents of exhibits G, H and K. It was argued that from the evidence of the appellant, it was a clear case of denial of authorship of exhibits C, C1 and G and not an issue of involuntariness of the statements. It was posited that the appellant having denied authorship, the trial court has a duty to determine whether the statements were made by the appellant. In the instant case it was submitted that the trial court failed to determine whether the accused actually made the statement before using same to convict him. In support, reference was made to the following cases: Nsofor v. State (2002) 10 NWLR (Pt. 775) 274 at 289, Okoro v. State (1993) 3 NWLR (pt. 282) 425 at 437, Ehot v. State (1993) 4 NWLR (pt. 290) 644 at 659, Ogunye v. State (1999) 5 NWLR (Pt. 604) 548 at 570.
It was submitted that the appellant was never said to have participated in the robbery nor arrested at the scene of crime. In support, reference was made to the evidence of PW1, to the effect that he was in a Youth meeting of their political party with the appellant when they got the news of the robbery. It was contended that in appropriate cases conviction can be based on a confessional statement, where same is voluntary, direct, positive and unequivocal. In support, reference was made to the following cases: Edhigere v. State (1996) 8 NWLR (pt. 464) 1 at 13-14, Queen v. Itule (1961) 2 SCNLR 183, Bature v. State (1994) 1 NWLR (pt. 320) 267 at 285-286, Ubigrho v. State (2005) 5 NWLR (pt. 919) 644. It was argued that it is always desirable to have some corroborative evidence outside the confession that makes it probable that the confession is true.
The appellant stated that courts are not generally disposed to act on a confession without testing the truth thereof. In support, reference was made to the following cases: Onochie & Ors v. The Republic (1966) 4 NMLR 307, R v. Kanu (1952) 14 WACA 30, Tafiyakpa v. State (1971) 1 All NLR 150, Re: Osakwe (1994) 2 NWLR (pt. 326) 273 at 300, Kareem v. FRN (No.1) 2002 8 NWLR (Pt. 770) 636 at 656. It was contended that the contents of exhibits C, C1 and G, having been recanted they ought to have been subjected to relevant tests to determine their truth. It was argued that the trial court ought not to have retied on the confessional statements, as the appellant resiled from the statements and proffered no explanation as to why his evidence in court is different from the content of the statement. In support, reference was made to the following cases: Kareem v. FRN (No. 2) (2002) 8 NWLR (Pt. 776) 664 at 892, Edamine v. State (1996) 3 NWLR (pt. 438) 530 at 541, Onwumere v. State (1991) 4 NWLR (pt. 186) 248.
It was contended that the appellant raised the defence of alibi which was neither investigated by the police nor acted upon, by the court. It was argued that a court has a duty to consider all defences raised by an accused person. In support, reference was made to Ojo v. State (1973) 8 NSCC 590 at 594, Nse Udo Ntita v. State (1993) 3 SCNJ 28 at 35, Bolanle v. State (2005) 7 NWLR (pt. 925) 431, Rasaki Oladipupo v. State (1993) 6 SCNJ 233 at 239-241. It was submitted that the alibi raised by the appellant must have created doubt in the prosecution’s case, the benefit of which goes to the accused person. In support reference was made to the following cases: Agbanyi v. State (1995) 1 NWLR (pt. 369) 1 at 27, Ozulonye v. State (1981) 1 NCR 38 at 50-51, Onuchukwu v. State (1998) 4 NWLR (pt. 547) 576 at 592, Ankwa v. State (1969) 1 All NLR 133 at 136.
It was argued that the lower court failed to adopt the standard test of determining the truth of the purported confessional statement but just concluded that the truth of the confessional statement has been tested. As to the procedure for testing a confessional statement, reference was made to the following cases: Obisi v. Chief of Naval Staff (2002) 2 NWLR (Pt. 751) 400 at 418-419, R v. Sykes (1913) 18 CAR 233, Dawa v. State (1980) 8-11 SC 236, Ikpasa v. A.G. Bendel State (1981) 9 SC 7, Bolanle v. State (2005) 7 NWLR (Pt. 925) 431 at 498. It was argued that the trial court did not refer to the aforementioned tests, let alone apply same, before accepting the contents of the purported statements and relying on same in convicting the appellant. It was urged that the issue be resolved in favour of the appellant.
On issue three, it was stated that section 36 (5) of the constitution made provision for presumption of innocence, hence the burden of proof is on the prosecution and the standard is beyond reasonable doubt. In support, reference was made to section 138 (1), (2) and (3) of the Evidence Act Section 135 (1), (2) and (3) of the Evidence Act 2011. The following cases were also cited, namely: Akalezi v. State (1993) 2 NWLR (Pt. 273) 1 at page 13, R v. Basil Ranger Lawrence (1932) 12 NLR 6 at 7, R v. Ann Nwokarajor & Ors (1944) 10 WACA 5. It was contended that beside tendering the purported confessional statement the prosecution failed to adduce evidence in proof of the offences. In support, reference was made to Aigbadion v. State (2000) 7 NWLR (pt. 666) 686m at 704. It was submitted that for conspiracy the prosecution failed to establish common intention or agreement between the appellant and the other accused persons. In support reference was made to the following cases: Oyakhere v. State (2005) 15 NWLR (pt. 947) 159 at 160, Obiakor v. State (2002) 6 SC (Pt. 11) 33 at 39-40
It was argued that the appellant stated that he met the 2nd and 3rd accused for the first time inside a cell at Sango and that evidence was never contradicted or challenged under cross examination, hence must be deemed admitted as true. In support, reference, was made to the following cases: Gaji v. Paye (2003) 8 NWLR (Pt. 823) 583, Offorlette v. State (2000) 12 NWLR (pt 681) 415 at 436, Aigbadion v. State (supra)
As for the offence of armed robbery, it was contended that the prosecution failed to establish the ingredients for the offence beyond reasonable doubt. In support of what the ingredients are, reference was made to the following cases: Bolanle v. State NCC Vol. 1 page 342 at 345, Olayinka v. State NCC Vol. 2 page 505 at 523, Alabi v. State (1993) 7 NWLR (Pt. 307) 511 at 523, Bozin v. State (1985) 2 NWLR (pt. 8) 465 at 469.
It was contended that there was no evidence to show that appellant participated in the robbery. The appellant argued that beside the purported confessional statement, PW1 was not an eyewitness to the robbery incident, while PW2 and PW3 stated that they could not recognize the armed robbers. It was urged that this issue be resolved in favour of the appellant.
On issue four it was contended that the trial court failed to discharge its primary duty of evaluating the evidence, hence decision cannot stand. In support reference was made to the following cases: Bassil v. Fajebe (2001) 11 NWLR (725) 592 at 608-609, Lagga v. Sarhuna (2008) 16 NWLR (Pt. 114) 427 at 460-461, Odofin v. Mogaji (1978) 4 SC 91; Adediji & Anor v. Kolawole & Ors (2006) 2 EPR 87. It was argued that the trial court did not even evaluate the evidence of PW2 and PW3 which it referred to in order to ascertain whether they linked the appellant with the offence. It was submitted that the trial court closed its eyes to the totality of the evidence led by the appellant and refused to consider the defence raised by the appellant. In support, reference was made to the following cases: Ojo v. State (supra), Bolanle v. State (supra). This Court was also urged to resolve this issue in favour of the appellant.
In response and on requirements for the offence of armed robbery, the respondent relied on the following cases: Bozin v. State (1985) 2 NWLR (pt. 8) 465, Alabi State (1993) 7 NWLR (pt. 307) 5, Aminu Tanko v. State (2009) 4 NWLR (pt. 1131) 430. It was contended that PW2 and PW3 in their evidence stated how they were robbed by 2nd and 3rd accused persons, and that the robbery was armed robbery, hence satisfying the 1st and 2nd requirement. The respondent posited that PW1 in his evidence stated that the 1st and 2nd accused on being arrested confessed to the crime and admitted that they were sent by the appellant to commit the robbery. It was submitted that exhibits C, C1 and G confirmed the involvement of the appellant in the said robbery. It was argued that the evidence of PW1, PW2, PW3 and PW4 with the exhibits tendered confirmed the confessional statements as true. In support reference was made to the following cases: R v. Sykes (1913) 8 CAR 233, Ubierho v. State (2005) 5 NWLR (pt. 919) 644, Saidu v. State (1982) 4 SC 41.
It was further submitted that an accused person can be convicted solely on his confessional statement alone. In support reference was made to the following cases: Ojegele v. State (1988) 1 NWLR (pt. 71) 414, Udedibia v. State (1976) 11 SC 133, Kareem v. FRN (No.1) (2002) FWLR (pt. 104) 555. This Court was urged to hold that the prosecution proved the charges against the appellant.
On evaluation of evidence, it was submitted that it is the primary responsibility of the trial court which was properly discharged in the instant case. It was contended that the duty of an appellate court is to see whether there was evidence upon which the trial court acted and not to substitute its own views for the trial court. In support, reference was made to the following cases: Bashaya v. State (1998) 5 NWLR (pt. 550) 351, Igbago v. State (1999) 14 NWLR (pt. 637), Ohvoha v. State (1998) 5 NWLR (pt. 548) 118. In the absence of evidence indicating erroneous appraisal of facts, this Court was urged not to interfere with the findings of the lower court. In support, reference was made to the case of Agbanyi v. State (1995) 4 NWLR (pt. 369) 22.
The presumption of innocence which is an essential foundation in our adversary adjudicatory system has a secured place in our criminal jurisprudence, which is the constitutionally guaranteed. Section 30 (5) of the 1999 constitution (as amended), provides thus:
“Every person charged with a criminal offence shall be presumed to be innocent until he is proved guilty”
By the aforementioned constitutional provision, the accused person is presumed innocent, until proved guilty. The said provision squarely and clearly places the burden of establishing the guilt of an accused person on the prosecution. Hence the burden of proving the guilt of the accused is always on the prosecution and the standard of proof in criminal cases is proof beyond reasonable doubt. See Section 135 (1) of the Evidence Act 2011, which provides thus:
“If the commission of crime by a party to any proceedings is directly is issue in any proceedings civil or criminal, it must be proved beyond reasonable doubt”.
See the following cases: Akalezi v. State (1993) 2 NWLR (pt. 273) 1 at 13. Nwosu v. State (1998) 8 NWLR (pt. 562) 433 at 444, Woolmington v. DPP (1935) AC 462, Bakare v. State (1987) 3 SC 1, Okoro v. State (2010) 16 NWLR (pt. 1220) 584, Agbiti v. Nigerian Navy (2011) LPELR 2944, Oduneye v. State (2001) 2 NWLR (pt. 697) 311, Dibie v. State (2007) 9 NWLR (pt. 1038) 30, Oteki v. A-G Bendel State (1986) 2 NWLR (pt. 24) 648, Emeka v. State (2011) FWLR (pt. 66) 682, R v. Lawrence (1932) 12 NLR 6 at 7, R v. Nwokarajor & Ors (1944) 10 WACA 5.
The prosecution therefore owes a duty to prove every ingredient of the offence charged, as provided for in the substantive law beyond reasonable doubt. Where the standard of proof is not attained, any lingering doubt will be resolved in favour of the accused. See Onafowokan v. State (1987) 3 NWLR (pt. 61) 531, State v. Danjuma (1997) 5 NWLR (pt. 809) 1 at 35-36, Abdullahi v. State (2008) All FWLR (pt. 432) 1047.
A good and convenient starting point is from the ingredients or requirements for the offences of conspiracy and armed robbery. Simply put and briefly defined conspiracy is an agreement between two or more persons to do an unlawful act or a lawful act by an unlawful means. Essentially what is central to the ingredients for the offence of conspiracy is common intention or that the accused persons had an agreement to commit an act which in itself is an offence. See Oyakhere v. State (2005) 15 NWLR (pt. 947) 159 at 160, Obiafor v. State (2002) 6 SC (pt. 11) 33 at 39-40. The requirements for the offence of armed robbery on the other hand, the prosecution must establish beyond reasonable doubt the following:
“(i) That there was robbery or series of robberies.
(ii) That the robbery was an armed robbery
(iii) That the accused was one of those who took part in the armed robbery.”
See the following cases: Samuel Bozin v. State (1985) 2 NWLR (pt.8) 465 at 469, Alabi v. State (1993) 7 NWLR (Pt. 307) 511 at 523, Aminu Tanko v. State (2009) 4 NWLR (Pt. 1131) 430, Bolanle v. State NCC Vol. 2 pg.505 at 523.
A consideration of the aforementioned requirements of the offences will be made vis a vis the evidence before the lower court to determine this appeal. Indeed from the evidence of PW2 and PW3, (the victims of the crime), it is clearly not in dispute that there was a robbery incident in their house on 21st December 2006 at about 7:45 p.m. The said robbers were armed and PW2, Elder Azeez Salawu Omowamiwa was shot with a gun on his left hand. See page 84 of the record where the said witness stated thus:
“On 21st day of December 2006 at about 7:45 p.m. I saw about five people, they entered into my sitting room while I was watching the T.V. with my wife and my children. My residence is on the 1st floor. One of them said “You are under arrest, everybody face the ground” the next thing I knew was that my left hand was shot with a gun. I fainted and I did not know what happened again. I later met myself in the hospital called Ajike Medical Centre AMJE, Alakuko, Ogun State. I recovered about an hour in the hospital.”
Under cross examination on page 86, the said witness stated inter alia as follows:
“I saw the five armed robbers who entered my house. I have never met any of the five armed robbers before. 1st accused person was not in their midst…. It was the 2nd and 3rd accused persons that mentioned the name of the 1st accused…….”
In her evidence in chief part of which is hereby reproduced, PW3 Mrs. Fisayo Azeez Omowamiwa a wife to PW2, stated thus on page 86 of record:
“On 21st December, 2006 I was at home with my husband and my children, some people entered and said “You are under arrest”. I heard a gun shot we were all asked to lie on the floor. My husband shouted, I looked up and I saw one short person and one tall person. They asked me where my husband kept his money. They went to our room and broke the door. They searched everywhere including the wardrobes and they stole some money. I was pushed downstairs by the robbers from the 1st floor veranda. The veranda has no guard i.e. railings, I did not notice whether the robbers had any other weapon apart from the gun which they fired.”
From the foregoing excerpts from the evidence of PW2 and PW3, it is clear that there was robbery in their house on 21st December, 2006. It is also clear that the robbers were armed with a gun. Hence, requirements 1 and 2 for the offence of armed robbery had been established. The third however, is to the effect, whether the accused (now appellant) was one of those who took part in the robbery. A consideration of the third requirement will be made anon. PW2 under cross examination clearly stated that the 1st accused (appellant) was not amongst the robbers that entered his house on 21st December, 2006. See the earlier reproduced portion of his evidence under cross examination. The appellant in his evidence in chief on page 104 maintained the same position to the effect that he was not at the venue of the robbery.
On the third ingredient for the offence of armed robbery as it relates to the appellant, the lower court had this to say on page 123 of the record:
“The third ingredient the prosecution must prove that the accused person participated in the armed robbery……………… The 1st accused person was however not at the scene of crime when the offence was committed. His confessional statement however showed that he was the one who procures the 2nd and 3rd accused persons together with those at large to commit the offence.”
Aside from the statements credited as such to the appellant in exhibits C, C1 and G there was no evidence whatsoever linking the appellant. The statements of the two other accused persons to the effect that appellant directed them to commit the offence, is only relevant against them. The position of the law on this is trite, that a confession is relevant fact against the maker only and not against any other person unless the other person has adopted the statement. See Section 27 (2) of the Evidence Act and Emeka v. State (2001) 6 SCNJ 259, Igago v. State (199) 11 & 12 SCNJ 140.
It is apparent, that the appellant was convicted based on exhibits C, C1 and G which were retracted in court. A court no doubt can convict on a free and voluntary confession of guilt by an accused person whether judicial or extra-judicial if it is direct, positive and is duly made and satisfactorily proved. See Ehigere v. State (1996) 8 NWLR (pt. 464) 1 at 13-14, Bature v. State (1994) 1 NWLR (Pt. 320) 267 at 285-286, Olabode v. State (2007) All FWLR (pt. 389) 1301, Nwachukwu v. State (2002) FWLR (pt. 123) 312, Arogundade v. State (2009) All FWLR (pt. 469) 409, Queen v. Itule (1961) 2 SCNLR 183 Ubierho v. State (2005) NWLR (pt. 919) 644. Though the retraction of a statement does not affect admissibility, but at the end of the case the court should determine whether the accused made the statement. See Nsofor v. State (2002) 10 NWLR (pt. 775) 274 at 289, Ikpasa v. Bendel State (1982) 9 SC 1, Ehot v. State (1993) 5 SCNJ 65, Oguno v. State (2011) 7 NWLR (pt. 1246) 314, Okoro v. State (1993) 3 NWLR (pt. 282) 425 at 437. In the instant case, the lower court failed to determine whether the accused person actually made the statement before using same to convict him. The Apex Court stated the position of the law in Ogunye v. State (1999) 5 NWLR (pt. 604) 548 at 572 per Igu, JSC as follows:
“With greatest respect to the learned trial Judge, it was nothing short of a gross misdirection to have relied on exhibit A and S in convicting the 5th appellant without making a specific finding as to whether or not these confessions were in fact made by him, it was equally erroneous on the part of the court below to have relied on the contents of such unproved statements in affirming the conviction of the 5th appellant.
The case as presented by the prosecution was the appellant procured the alleged robbers to rob PW2 and PW3. The court relied on the retracted statements in convicting the appellant. Where a confessional statement is denied or retracted, it is desirable to have corroborative evidence no matter how slight before convicting on such statement. The court has a duty to test the veracity or otherwise of the statement by comparing it with other facts outside the statement to see whether they support, confirm or correspond with the statement, In a way, the court must scrutinize the statement to test its truthfulness or otherwise in line with available evidence. See R v. Sykes (1913) 18 CAR 233, Kazeem v. State (2009) All FWLR (pt. 465) 1749, Dawa v. State (1980) 8-11 SC 236, Ikpasa v. A-G Bendel (1981) 9 SC 7, Bolanle v. State (2005) 7 NWLR (pt. 925) 431 at 498, Obisi v. Chief of Naval Staff (2002) 2 NWLR (pt. 751) 400 at 418-419.
In determining whether a confession is true, the test as laid down in R v. Sykes (supra), to the following effect is adopted:
i. Is there anything outside the confession to show that it is true?
ii. Is the statement corroborated?
iii. Is the statement of fact made in the confession, so far as can be tested, true?
iv. Does the accused person have the opportunity to commit the offence charged?
v. Was the confession possible?
vi. Is the confession consistent with other facts which have been ascertained and proved at trial?
The lower court did not refer to, let alone apply the above tests to the statements before relying on them in convicting the appellant. The conclusion of the trial court that PW2 and PW3 confirmed the truth of the confessional statement is perverse. It was wrong to have convicted the appellant on the alleged confessional statement when none of the tests in R. Sykes were positive. The third ingredients for the offence of armed robbery has not been established.
It is trite law that evaluation of evidence and ascription of probative value is the primary duty of trial court, which must have seen and heard the witnesses and observed their demeanour. See Adekunle v. Aremu (1998) 1 NWLR (pt. 533) 203 at 229. In deciding a case, a court is bound to consider all the evidence presented before it, be it oral or documentary. In the instant case the evaluation was lopsided, as the court gave no consideration whatsoever to the evidence by the appellant. This indeed is a serious error. See Shell Dev. Co. Ltd. v. Ofoko (1990) 6 NWLR (pt. 159) 693 at 707, Nwaezema v. Nwaiyedo (1990) 3 NWLR (pt. 157) 230, Millar v. State (1997) 1 SCNQR 100 at 189, Adeleke v. Iyanda (2001) 13 NWLR (pt. 729) 1, Awudu v. Daniel (2005) 2 NWLR (pt. 109) 199 at 727. As for the offence of conspiracy, no evidence whatsoever was adduced to establish any agreement or common purpose. See Dr. Segun Odunneye v. State (2201) 5 NSCQR 1 at 11-12, Ogbu & Anor v. State (2007) All FWLR (pt. 361) 1651 at 1674, Ikonne v. State (1981) 2 NCR 264 at 268, Garba v. C.O.P. (2007) 16 NWLR (pt. 1060) 378, Ishola v. State (1972) 10 SC 63 at 76-72. Issues 2, 3 and 4 succeed and are hereby resolved in favour of the appellant.
Consequent upon the foregoing, the appeal succeeds on issues 2, 3 and 4 and it is hereby allowed. The judgment of the High Court of Ogun State, Ota Judicial division delivered on 21st December, 2010 in Suit No. HC/12R/07 is hereby set aside. A verdict of discharge and acquittal is hereby entered in favour of the appellant.
MONICA B. DONGBAN-MENSEM, J.C.A.: The lead Judgment prepared by my learned brother Adamu Jauro, JCA, finds this appeal estimable of success. I concur.
I however wish to contribute briefly on issues 1 and 2 for the peculiar arguments raised therein.
Issue one.
I adopt the summary of the arguments made by both parties as reflected in the lead judgment.
The Appellant challenges his prosecution by the Hon. Attorney-General of Ogun State. The basis of the challenge is that the Act creating the offence is a Federal Legislation and that by the provisions of section 174 (1)(a) & 211 of the 1999 Constitution of the Federal Republic of Nigeria 1999 (as amended), the State Attorney-General required the fiat of the Attorney-General of the Federation to prosecute the Appellant. The case of FRN v. Osahon (2009) 5 NWLR (Pt. 793) 361 @ 436 fully addressed this issue.
The Apex court has in a long line of cases over the years consistently maintained that the federal system of Government adopted in Nigeria is one of loose federalism. (Refer FRN v. Osahon (supra)). See also Mandara v. A-G Federation SC.152/83 where the Apex court per Irikefe, JSC held inter alia that the Constitutional arrangement in regards to separation of powers is porous and there is constant interaction between the Federal and State organs of government.
This perhaps explains why the federal Police maintain law and order in the states and by that, although a federal agency, effectively prosecute cases before the Magistrate Courts in the State. The Police also is the organ which carries out most investigations in the State and submits its findings to the Hon. Attorney-General of the State for legal advise and subsequent prosecution by the Police, or the office of the Attorney-General, which also has the powers by the provisions of section 211 (1)(a)-(c ) of the Constitution to take over and either continue or discontinue any criminal proceedings initiated in the state except that before a Court Martial.
The Constitution has conferred a right of prosecution on the Attorney-General of the state and such right cannot be subjected to any form of qualification by an Act of the National Assembly. The reason is that the same National Assembly by its enactment of the Constitution as the Supreme law of the land renders all other laws subject to the provisions of the Constitution. (Section 1(1) of the Constitution).
By the decision in FRN v. Osahon (supra) the Supreme Court held that by the provisions of section 174(7) of the Constitution, the fiat of the Federal Attorney-General is presumed and any citizen of Nigeria can initiate prosecution. This decision reserves the power of the Federal Attorney-General to take over and continue or discontinue any such criminal prosecution which is deemed initiated with the Hon, Attorney-General’s fiat is however reserved. The same situation applies in the case of all the States of the Federation by the provisions of section 211 (1)(a)-(c ) of the Constitution.
Issue two
The Prosecution either totally ignored or misunderstood nature of the defence put up by the Appellant. By the testimony of PW2, the Appellant impliedly put up a defence of alibi. A defence of alibi was perhaps rightly discountenanced having not been timeously raised. However, the Appellant, in his denial said he never made a confessional statement to the prosecution.
This allegation of the Appellant raise two questions:-
(1) Was the Appellant in anyway interrogated by the Prosecution.
(2) Did the Appellant make any statement at all to the Prosecution and if he did,
(3) Where is the said statement?
These are questions that should have been raised and determined at a trial within trial. I find in the record for this appeal at pages 55-59 and 60-62, the written addresses of the learned Counsel in respect of an order of a trial within trial but could not find within the records, what was the pronouncement of the court on the said written addresses of both learned Counsel. The final decision of the learned trial Judge however clearly disclosed that his lordship was not impressed by the submission of the learned Counsel for the defence. This was a fatal error because the accused person made a serious allegation of a statement of being imposed on him. The Appellant as an accused person maintained throughout the trial that he made no statement to the Police.
The Prosecution totally ignored the allegation of the Appellant that he made no confessional statement to them. In the circumstances, the learned trial Judge fell into serious error by not condemning the silence of the prosecution and failing to address the serious issue in the evaluation and ascription of value to the evidence adduced by the parties. I have read the judgment of the learned trial Judge and find a fundamental lacuna on this aspect. The learned trial Judge did not at any point address the defence of the Appellant, My learned bother Jauro, J.C.A. has reproduced part of the Judgment of the learned trial Judge which repeatedly referred to the Prosecution’s argument and none of the Appellant’s.
The decision of the learned trial Judge has indeed inflicted injustice which this Court must redress forthwith by an order of reversal of the conviction and sentence of the Appellant. It is hereby so ordered as in the lead Judgment.
OBIETONBARA DANIEL-KALIO, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my brother Adamu Jauro, J.C.A. I agree with the reasoning and conclusions reached and have nothing extra to add. The judgment of the trial Judge is hereby set aside. The appellant is hereby discharged and acquitted.
Appearances
A. A. Olatunji Esq. with O. E. Ige Mrs. and A. Abas Olisa Esq.For Appellant
AND
B. A. Adebayo Esq. DDPP Ogun State Ministry of Justice with W. A. Onawole Esq. State CounselFor Respondent
