STATE v. OLADEJO OGUNKANMI & ORS
(2013)LCN/6335(CA)
In The Court of Appeal of Nigeria
On Monday, the 24th day of June, 2013
CA/I/102/2010
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
STATE Appellant(s)
AND
1. OLADEJO OGUNKANMI
2. TIMOTHY OLAYIWOLA
3. ILUFOYE ATANDA
4. OKUNLOLA ALAMU
5. OLUSOJI ADEGBOYEGA ALAMU Respondent(s)
RATIO
WHETHER OR NOT THE EVIDENCE OF A WITNESS WILL HOLD WEIGHT WHERE A WITNESS SAYS OR WRITES CONTRARY TO WHAT HE SAID IN EVIDENCE UNDER OATH
Where a witness has formerly said or written the contrary of that which he said in evidence under oath, his evidence should not have much weight, the facts is almost conclusive against his credibility unless the reason for his having done so is satisfactorily accounted for. See Dogo & Ors v. The State (2001) 5 NSCQR 307 @ 325, Onubogu v. The State (1974) 9 SC 1. PER DOGBAN-MENSEM, J.C.A.
WHETHER OR NOT MERE SUSPICION CAN JUSTIFY A CONVICTION
It is trite law that mere circumstances of suspicion are not sufficient to justify a conviction; suspicion however strong cannot take the place of legal proof. See Ahmed v. The State (2001) 8 NSCQR 273, Iko v. The State (2001) 7 NSCQR 277, Orji v. The State (2008) 4 SCNJ 85 @ 98.
There is also the doubt raised by the evidence of the defence that the farm was set on fire Tobi Salako and Mayowa Idowu on their way from school on 20/1/2005 when the court entertain doubt on the guilt of an accused the law demands that such doubt should be resolved in favour of the accused. See Orji v. the State (2008) 4 SCNJ 85 @ 100, Nnolim v. The State (1993) 3 NWLR (Pt. 283) 569.” PER DOGBAN-MENSEM, J.C.A.
STANDARD OF PROOF IN CRIMINAL CASES
Also as rightly held by the learned trial Judge, the Respondents pointed fingers at other people as culprits but rather than investigate them, they were used as prosecution witnesses. The evidence of such person cannot also be relied upon. The law does not operate like that. Suspicion, no matter how strong, does not take the place of legal proof (Ahmed v. The State (2001) 8 NWLR (Pt. 746) p.622, Babalola v. The State (1989) 4 NWLR (Pt. 115) p. 264, Bozin v. State (1985) 2 NWLR (Pt. 8) p.465).
The feeble legal proof put before the court was punctured by unbelief, the value of the evidence fell far below the required standard.
Section 138 of the Evidence Act, 2004 (135 (1) Evidence Act, 2011) requires that proof must be beyond reasonable doubt. Beyond reasonable doubt is not necessarily beyond a shadow of doubt but must certainly be sufficient to unmask the monster behind the iron cast. It is not enough to say if they did not do it who could have done it? Nor is it good to say they must have done it because they have a grudge against the victim/complainant. (Refer Musa Ikaria v. The State (2013) All FWLR (Pt. 671) page 1463 @ 1482). PER DOGBAN-MENSEM, J.C.A.
WHETHER OR NOT A JUDGE HAS THE DISCRETION TO DISALLOW EVIDENCE IF THE STRICT RULES OF ADMISSIBILITY WOULD OPERATE UNFAIRLY AGAINST AN ACCUSED PERSON
Generally, in criminal trials, the Judge has the wide discretion to disallow evidence if the strict rules of admissibility would operate unfairly against the accused person.
In the case of Sadau & Anor. v. The State (1968) ANLR 125 the Supreme Court cited with approval the case of Karuma v. R (1955) 1 All ER 236 @ 239 to summarise the position thus-
“there is no general rule of law in civil as well as criminal cases that evidence which is relevant is excluded merely by the way in which it has been obtained…,the Judge can, where the interest of justice demand it, exclude evidence which otherwise would be relevant considering the circumstances of its discovery and production”. PER DOGBAN-MENSEM, J.C.A.
MONICA B. DONGBAN-MENSEM, J.C.A. (Delivering the Leading Judgment): The Appellant who was the prosecution at the trial court is dissatisfied with the judgment of Hon. Justice Boade J. of the Oyo State High Court of Justice holden at Ogbomoso Judicial Division delivered on Tuesday the 31st day of March, 2009. The Respondents/accused persons were charged with two counts of charge to wit: Conspiracy to commit Arson contrary to Section 516 of the Criminal Code, Cap. 38 Vol. 11 Laws of Oyo State of Nigeria and Arson contrary to and punishable under Section 445 of the criminal Code, Cap.38 vol. II Laws of Oyo State of Nigeria. The accused persons were discharged and acquitted by the trial court for the failure of the prosecution to proof the allegations against the accused persons.
The Appellant raised two grounds of appeal (pages 115-116 of the records of proceedings) and formulated three issues for determination as follows:-
1. Whether Exhibit 1 was properly received in evidence having regard to the provisions of Sections 199 and 209 of the Evidence Act,Cap.E 14 Law of the Federation of Nigeria,2004.
Whether learned trial Judge was not wrong in using Exhibit 1 which was wrongly admitted to discredit the sworn oral evidence of PW1.
3. Whether or not the trial Judge properly and correctly evaluated the evidence and came to the right decision by holding that the prosecution had failed to prove its case against the accused persons beyond reasonable doubt.
The Respondents formulated two issues for determination as follows:-
1. Whether Exhibit 1 was inadmissible notwithstanding the provision of Sections 199 and 209 of the Evidence Act Cap. E 14 Laws of the Federation of Nigeria 2004.
2. Whether prosecutions at all proved their case beyond reasonable double with or without Exhibit 1.
Issue One
The learned Counsel for the Appellants N. O. Okeniyi (DPP) submits that Exhibit 1 is not a legal evidence, as same was wrongly admitted without compliance with Section 199 and 209 of the Evidence Act and therefore should expunged from the record in spite of the fact that the admissibility of the statement was not opposed by the prosecution. (Refer Arehia v. The State (1982) 4 S.C. 78 @ 90, Adisa v. The State (1964) 1 All NLR 200 @ 202, Ekang v. The State (2001) 11 NWLR (Pt. 773) p.1 @ 25)
Counsel further submits that in criminal trials unlike in civil trials, a party who did not object to the admissibility of a piece of evidence at the trial court is not barred from raising such an objection at appeal. Unity Life & Fire Insurance Co. Ltd. v. IBWA (2001) 7 NWLR (Pt. 713) p.610 @ 626-627, Hausa v. The State (1992) 1 NWLR (Pt. 219) p.600 @ 613, Adele v. The State (1995) 2 NWLR (Pt. 377) p.269 @ 284.
The learned counsel maintains that the learned trial Judge erred in law by relying on the said Exhibit 1 upon which the Respondents were discharged and acquitted.
The learned Counsel for the Respondent Olusegun Oyewo Esq. submits that a court of law is a court of justice and must always strive to do substantial justice and not a technical justice. That section 199 does not prevent the admissibility of a written statement of a witness on the ground that proper procedure is not followed but that proper foundation must be laid before the statement could be used to contradict the witness. See Section 199 of the Evidence Act.
Counsel also submits that all the authorities cited by the learned Counsel for the Appellant are not relevant as Exhibit 1 was rightly admitted by the court. That the Exhibit needs not be tendered by the defence, as the court on its own could call for it for proper determination of the case. See Section 209 of Evidence Act.
Counsel further submits that Exhibit 1 is the detailed complaint made by the Appellants to the Police and the back bone of his case and wonders why the Appellant is withholding the said Exhibit 1? Urges this court to interprete the intention of a party withholding a piece of evidence in light of the provisions of Section 149 (d) of the Evidence Act and the cases of Akinyemi v. State (1999) 6 NWLR (Pt. 607) @ 449, Okunzua v. Amosu (1992) 7 SCNJ 243.
Issues two & three
The learned counsel for the Appellant urges that the test to be applied in determining a wrongfully admitted piece of evidence on a judgment is, whether the learned trial Judge would have come to the same decision if the inadmissible evidence had not been admitted. (Refer Section 227 (1) Evidence Act & Okoro v. The State (1998) 14 NWLR (Pt. 584) p.181 @ 208)
Counsel also submits that where a matter or document has been improperly received in evidence in the court below, even when no objection has been raised, it is the duty of the court of appeal to reject it and decide the case on legal evidence. That this court can expunge Exhibit 1 from the records, and use the “discounted” evidence of PW1 which is sufficient to establish the offences the Respondents were charged tried a convicted for. (Refer Adenuga v. Ilesanmi Press (1991) 5 NWLR (Pt. 189) p.82 @ 95)
The Respondents submits that the Appellant failed to meet the requirement of the law in Section 138 of the Evidence Act and where there is doubt in the mind of the Judge as to the commission of the offence by the accused persons such doubt must be resolved in favour of the accused person(s). (Refer Augustine Onuchukwu & 2 Ors v. State (1998) 4 NWLR (Pt. 547) @ 590, Umani v. State (1998) 1 NWLR (Pt. 70) 274).
Counsel also refers this court to the trial court’s decision at page 110-111 of the records of proceedings and submits that with or without Exhibit 1 the charges proffered against the Respondents by the Appellant was just an afterthought which raised serious doubt as to the veracity of the case against the Respondents. That the evidence of the Appellant at the trial court was mere suspicion and that suspicion no matter how strong it might be cannot grant a conviction of the accused person(s). (Refer Ahmed v. The State (2001) 8 NSCQR 273, Amadi v. State (1993) 8 NWLR (Pt. 314) @ 644, Adie v. State (1980) ANLR 39 @ 49, State v. Ogbunjo (2001) 2 ACLR 527 @ 538-540)
Counsel further submits that where the totality of the evidence in criminal trial is equivocal, the prosecution cannot be said to have proved its case beyond reasonable doubt against the accused person(s). (Refer Augustine Onuchukwu v. State (supra), Umani v. State (supra), State v. Kura (1975) 2 SC 83)
Like the learned trial Judge, I am of the humble opinion that this appeal can be determined on one issue. I find the two issues formulated by the Respondents as representing two sides of the same coin. This appeal shall be on the second issue formulated for Respondents which is whether the prosecution at all proved this case beyond reasonable doubt, with or without Exhibit I.
The learned trial Judge approached the serious charges preferred against the Respondents as accused persons with judicious circumspection. A reproduction of same portion of the judgment of the trial court conveys this point better. In upholding the principal of law as to the standard of the prosecution’s case, the learned trial Judge found and held at page 110-111 of the records that:-
Contrary to the statement the P.W.1 made to the police that himself and his younger brother, Adebowole Aderinto, were together in his farm on 20/1/2005 at the time the five accused persons allegedly set his farm on fire, the evidence of PW1 and that of Adebowole Aderinto (PW2) clearly shows that only the PW1 was on his farm and allegedly met the five accused persons setting his farm on fire. The PW2 specially stated in evidence that he was not there when the farm was on fire but was informed of what happened on the farm by the PW1.
Where a witness has formerly said or written the contrary of that which he said in evidence under oath, his evidence should not have much weight, the facts is almost conclusive against his credibility unless the reason for his having done so is satisfactorily accounted for. See Dogo & Ors v. The State (2001) 5 NSCQR 307 @ 325, Onubogu v. The State (1974) 9 SC 1. There is no iota of evidence why there is that material difference between the statement of P.W.1 to the Police and his evidence in court on the presence of P.W.2 with the P.W.1 on his farm on 20/1/2005 at the time his farm was set on fire. This renders the evidence of P.W.1 unreliable on the point. The P.W.1 is the only witness who claimed to have seen the accused persons on his burnt farm. Having found his evidence unreliable, I cannot believe his evidence that while he was working on the farm on 20/1/2005 the five accused persons walked pass and about 10 minutes he saw smoke coming from his other farm and when he went there he saw the farm had been burnt and he saw the five of them on the burning farm holding cutlasses and clubs and threatened to beat him.
There is one other important point which affects the credibility of the evidence of PW1. His farm was burnt on 20/1/2005 and he did not make any report of the incident to the Police until he wrote a letter of complaint to the Area Commander of 1/2/2005. His explanation on this under re-examination is that he was not sure of the Police attending his complaint because they always ignored his complaint in the past. I find it very strange that PW1 would see the five accused persons on his burning farm on 20/1/2005 and would fail to report to the Police until 1/2/2005, a period of 12 days. This also raised doubt on the veracity of the P.W.1 who said in evidence that the value of his cash and economic trees burnt is about N285,000.00. This attitude of the P.W.1, in my view, does not indicate that PW1 initially had a case against the accused persons.
There is no doubt that there has been dispute between the PW1 and five accused persons and they had taken each other to court and, definitely, the relationship between them is not cordial. The PW2 even said in evidence that on 20/1/2005 when he accompanied the bailiff of the Chief Magistrate’s court to serve the court’s processes on the five accused persons, the 1st accused person, Oladejo Ogunkanmi, then said in his presence that having being serve with the court process they would do worse things than they had already done before the court action against them. There is evidence that the case in the Chief Magistrate Court against five accused persons and others is in respect of vanilla trees on the farm of PW1 that were allegedly cut down by the accused persons. In my view, all these pieces of evidence merely raised suspicion against the accused persons that they set the farm on fire.
It is trite law that mere circumstances of suspicion are not sufficient to justify a conviction; suspicion however strong cannot take the place of legal proof. See Ahmed v. The State (2001) 8 NSCQR 273, Iko v. The State (2001) 7 NSCQR 277, Orji v. The State (2008) 4 SCNJ 85 @ 98.
There is also the doubt raised by the evidence of the defence that the farm was set on fire Tobi Salako and Mayowa Idowu on their way from school on 20/1/2005 when the court entertain doubt on the guilt of an accused the law demands that such doubt should be resolved in favour of the accused. See Orji v. the State (2008) 4 SCNJ 85 @ 100, Nnolim v. The State (1993) 3 NWLR (Pt. 283) 569.”
It is clear the judgment of the learned trial judge that the case of the prosecution was adequately evaluated in the light of acceptable legal evidence in a criminal trial. His lordship clearly declined to act on evidence shrouded with doubt and uncertainty. The PW1 who is the complainant victim, whose farm was burnt down allegedly almost under his watchful eyes, waited 12 days to report the incident. When he finally decided to report, his prime suspects turned to be people he had some issues with.
Also as rightly held by the learned trial Judge, the Respondents pointed fingers at other people as culprits but rather than investigate them, they were used as prosecution witnesses. The evidence of such person cannot also be relied upon. The law does not operate like that. Suspicion, no matter how strong, does not take the place of legal proof (Ahmed v. The State (2001) 8 NWLR (Pt. 746) p.622, Babalola v. The State (1989) 4 NWLR (Pt. 115) p. 264, Bozin v. State (1985) 2 NWLR (Pt. 8) p.465).
The feeble legal proof put before the court was punctured by unbelief, the value of the evidence fell far below the required standard.
Section 138 of the Evidence Act, 2004 (135 (1) Evidence Act, 2011) requires that proof must be beyond reasonable doubt. Beyond reasonable doubt is not necessarily beyond a shadow of doubt but must certainly be sufficient to unmask the monster behind the iron cast. It is not enough to say if they did not do it who could have done it? Nor is it good to say they must have done it because they have a grudge against the victim/complainant. (Refer Musa Ikaria v. The State (2013) All FWLR (Pt. 671) page 1463 @ 1482)
Thus, contrary to the argument of the prosecution that the learned trial the Judge relied solely on inadmissible evidence, his lordship considered the entire evidence and circumstances of the case in arriving at the decision by refraining from holding that it must have been the accused persons who set the fire because they had threatened to do worse things to the PW1. If such a threat was held out to the PW1, he did not take it seriously otherwise he would have reported to the Police. Further in spite of the alleged threat, the PW1 waited for 12 days to make a complain even though he caught the alleged culprits in the very act of arson.
Before I put finish this appeal, I will briefly addresses the issue of Exhibit 1.
The Appellant is unnerved by the fact that the learned trial Judge acted upon Exhibit 1 even though the said Exhibit was wrongfully admitted in evidence. The point against the said Exhibit is that the provisions of Sections 199 & 201 of the Evidence Act 2004 (now Sections 232 & 224 respectively of the 2011 Act) were not complied with. We have shown in the course of this judgment that the learned trial Judge did not rely solely on Exhibit 1 to arrive at the decision to discharge and acquit the Respondents.
The provisions of the Evidence Act not complied with require that the attention of be drawn to a previous written statement made by the witness which is sought to be used to impeach his veracity with an oral statement he made different from the previous written statement. This said statement is the complaint of the PW1 made to the Police. It appears to me in the circumstances, the foundation for the use of the statement already exists. The trial of the accused persons is the requisite foundation for use of the said previous statement which is made in respect of the trial put in motion by the written statement. Even if that is not the case, then the principal of law which says that the test of the admissibility of evidence is relevance application both to the Prosecution as well as the defence. (See Privy Council case of Karuma Son of Kania v. The Queen (1955) A.C. 197 @ 203).
Generally, in criminal trials, the Judge has the wide discretion to disallow evidence if the strict rules of admissibility would operate unfairly against the accused person.
In the case of Sadau & Anor. v. The State (1968) ANLR 125 the Supreme Court cited with approval the case of Karuma v. R (1955) 1 All ER 236 @ 239 to summarise the position thus-
“there is no general rule of law in civil as well as criminal cases that evidence which is relevant is excluded merely by the way in which it has been obtained…,the Judge can, where the interest of justice demand it, exclude evidence which otherwise would be relevant considering the circumstances of its discovery and production”
I find the appeal as lacking in merit and it is hereby dismissed.
ADAMU JAURO, J.C.A.: I have had the benefit of reading in draft the lead judgment of my learned brother, M. B. Dongban-Mensem, J.C.A., just delivered.
I agree with his reasoning and conclusion that the appeal lacks merit. I adopt the said judgment as mine and hereby dismiss the appeal.
OBIETONBARA DANIEL-KALIO, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my lord M. B. Dongban-Mensem, J.C.A. I agree with the reasoning and conclusions reached. The appeal is bereft of merit, it is dismissed.
Appearances
Kofo Oguntoyinbo (DDPP) Oyo State MOJ with Shiphiah Lawrence (SC)For Appellant
AND
Wale AdeyemoFor Respondent
