AZUKA IYESELE v. THE STATE
(2016)LCN/8233(CA)
In The Court of Appeal of Nigeria
On Thursday, the 3rd day of March, 2016
CA/I/13C/2014
RATIO
APPEAL: THE DUTY OF A MINISTER IN THE TEMPLE OF JUSTICE NOT TO TAKE SIDES AGAINST ARITHMETIC
My humble contention is that a honest assessment of the totality of the evidence on record made it extremely difficult for me to have anything to urge in favour of this Appellant. In ADELU v. STATE (2014) 13 NWLR (Pt.1425) at 490 PARA E, Rhode Vivour JSC observed thus:
‘Turning to defence counsel, I must observe that it is the duty of counsel representing an accused person, especially one facing a capital offence to use all resources at his disposal, by that I mean his knowledge of the law to ensure that the accused person has the best defence possible’. Emphasis Supplied. My Noble Lords, within my little knowledge of law, I have done everything reasonable to see whether I can urge something in favour of the Appellant but I cannot find any. Afterall the Apex Court has warned that a minister in the temple of justice should not take ?sides against arithmetic?. In ENITAN V. STATE (1986) 3 NWLR (PT.30) 604 at 612 PARAS C ? D, that great jurist of inestimable value, Oputa JSC rebuked a minister in the temple of justice in a position such as which I find myself thus: Finally, I must commend Mr. Akinrele, S.A.N. for not hitting his head against a brick wall as Mr. Lardner, S.A.N. seemed to have done. If really there is nothing to urge in favour of an appellant, learned counsel has a right and owes the Court a duty to say so. There is nothing wrong in accepting the obvious but there is everything wrong in taking sides against arithmetic.?
As hard as I labored to find something reasonable to say in favour of this Appellant, I cannot find any without taking sides against arithmetic. per. ALI ABUBAKAR BABANDI GUMEL, J.C.A.
JUSTICES
ALI ABUBAKAR BABANDI GUMEL Justice of The Court of Appeal of Nigeria
HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria
OBIETONBARA O. DANIEL-KALIO Justice of The Court of Appeal of Nigeria
Between
AZUKA IYESELE Appellant(s)
AND
THE STATE Respondent(s)
ALI ABUBAKAR BABANDI GUMEL, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Ogun State High Court holden at Abigi delivered on 20th June, 2013 in charge No.AB/9R/2009, convicting and sentencing the Appellant to death by hanging for conspiracy to commit armed robbery, armed robbery etc. contrary to Sections 6(b) and 1(i) (b) of the respectively of the Robbery and Firearms (Special Provisions) Act CAP. R11, Laws of the Federation of Nigeria, 2004 (LFN, 2004).
According to the Respondent, the Appellant on or about at 13th February, 2008 at 12.00noon, the Appellant along with other persons entered the house of the complainant (PW1) at No.3 Kuforiji Olubi Crescent, Adigbe, Abeokuta, and while armed with guns robbed PW1 of 2 Nokia Mobile phones, cash and jewellery. Other occupants of the house, including PW5 were robbed of mobile phones and cash. To prove its case against the Appellant the Respondent relied on the oral evidence of 6 prosecution witnesses, and the extra-judicial statements of the Appellant to the police etc. The Appellant adduced oral evidence to defend the 4 count
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charge against him.
After all the evidence, including a trial within-trial, respective learned counsel addressed the Court. In its judgment, the Court found the Appellant guilty on counts 1, 2, 3, of the 4 count charged and proceeded to convict and sentence him accordingly. He was however found not guilty on count 4 and was accordingly discharged and acquitted on it. The Appellant was dissatisfied with the decision to convict and sentence him on counts 1, 2 and 3. He appealed to this Court in a notice of appeal filed on 3/09/13. It contains 7 grounds of appeal. They are as follows:
1. The Learned Trial Judge erred in law, when he held thus:
“Let me say here that the ingredient of the offence of conspiracy has been establish by the prosecution. I believe the evidence of PW1, PW2 and PW5 who all identified the accused person as one of the robbers who came to the house of Pw1 on that day.?
PARTICULARS OF ERROR
a. By the evidence of the pW2, the appellant was arrested at a quarry where the pw2 testified that any attempt by a robber to jump into would be suicidal. PW1 said she identified appellant at a police station in an
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identification parade. The Appellant said there was no identification parade. It is the duty of the Learned Trial Judge to resolve whether or not there was any identification parade where the appellant was identified by the PW1 but the Court failed in that solemn duty. More so, the prosecution corroborated the evidence of the Appellant that there was no identification parade.
b. The identification of the Appellant by the Pw2 in the dock is a mockery of legal art of identification known to law because of the faces that the PW2 allegedly saw in the compound were ?strange faces? unknown to him.
c. The identification of the Appellant in the dock by the PW5 who cannot give any description of their attackers is a loose form of identification unacceptable in law.
d. It is therefore wrong for the Learned Trial Judge to believe that the Appellant was properly identified in the robbery, on the basis of which the Learned Trial Judge found the applicant culpable for the charge of conspiracy to commit burglary.
2. The Learned Trial Judge erred in law when he held that Exhibit A is a confessional statement of the Appellant sufficient in law
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to convict him of the offences charged.
PARTICULARS OF ERROR
a. The Appellant set up a defence of non est factum to Exhibit A which would require the Learned Trial Judge to admit the document as an exhibit but duty bound to decide whether or not from available evidence, the Appellant actually made the said statement before considering the issue of retraction. But the Learned Trial Judge failed to make that important finding before relying on same as a confessional statement of the appellant.
b. Exhibit A is not certain statement of the Appellant.
3. The Learned Trial Judge erred in law when he admitted Exhibit B in his ruling of trial within trial as a voluntary statement of the Appellant despite the clear evidence of torture of the appellant by the police; and relied on same to convict the Appellant.
PARTICULARS OF ERRORS
a. The evidence on record glaringly supports the Appellant?s contention that he was grievously tortured by the police and was made to sign the statement under duress; hence it is not a voluntary statement of the Appellant.
b. The conclusion of the Learned Trial Judge that the statement was voluntarily
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made was erroneous on a proper evaluation of the totality of evidence adduced at the proceeding of trial within trial within trial.
c. Exhibit B which is a product of inconclusive evidence of PW6 who was not produced for cross examination by the defence lacks probative value and ought to be expunged from the record.
4. The Learned Trial Judge erred in law when he held thus:
?PW4 in her evidence mentioned a Mercedes Benz with Reg. No. BU 999 AAA which was used for the operation and that during the search of the car a wallet and an identity card belonging to the Accused was found and the Accused person identified the wallet and the identity card to be his own. Exhibits A and B contain the issue of a green Mercedes Benz with Reg. BU 999 AAA with which the Accused person was carried along with others to PW1?s house. The issue of the identity card was also mentioned and the Accused person in Exhibit B explained how he got this. The Benz car and the identity card that were recovered corroborated Exhibits A and B. I am satisfied that the offence of conspiracy as contained in count 1 of this charge has been proved beyond reasonable doubt by the
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prosecution against the Accused person and I hereby find him guilty on this count.?
PARTICULARS OF ERROR
a. There was no proof that any identity card and wallet of the Appellant were found in the Mercedes Car other than the mere ipse dixit of the PW4 that those items found in the card belong to the Appellant.
b. The Appellant’s evidence of how his own identity card got into the hand of the police which identify card was not tendered in evidence was however not taken into consideration as the totality of the evidence on record on the issue was not properly evaluated by the Learned Trial Judge.
c. The circumstantial evidence before the Court below purportedly linking the appellant to the charge was not certain and proved.
5. The Learned Trial Judge erred in law when he held thus:
“Let me say here that I watched the Accused person whilst testifying on oath and under cross examination. He did not impress me as a witness of truth. In fact I considered his evidence as a cooked up story and an afterthought story deliberately cooked up to deceive the Court. For example the Accused person in his evidence in Chief said he was
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arrested by vigilante O.P.C. men whilst he was running helter skelter amongst other people. Under cross examination, he said he was arrested by the Policemen at Adigbe and that he was on top of a motor bike when he was stopped. I am not unmindful of the fact that a lie is no evidence of guilt but truth will always remain constant.?
PARTICULARS OF ERROR
a. There is nothing in the evidence of the Appellant that portrayed his story in, evidence as cooked up and an afterthought as the fact that he is a dealer in electronics has not been disputed at all by any available evidence on record.
b. Lying is not an index of guilt.
c. It is the duty of the prosecution to prove the way and manner in which the Appellant was arrested and the Prosecution failed to so do.
6. The Learned Trial Judge erred in law when he held that the charge of armed robbery preferred against the Appellant has been proved.
PARTICULARS OF ERROR
a. The oral testimonies of the prosecution witnesses identifying the Appellant as one of the persons that did the robbery are weak and not sufficient in law to prove the charge against the Appellant beyond reasonable doubt.
b. Exhibit A and B relied upon by the Court below as confessional
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statements lack probative value to prove the charge and ought to be expunged from record.
c. There is no sufficient evidence on record proving the charge beyond reasonable doubt against the appellant.
7. The learned trial judge erred in law when is Lordship failed and/or neglected to take a clear and define position in respect of the testimony of PW1 and the exhibit tendered through him (i.e. PW6).
PARTICULAR OF ERRORS
a. The prosecution called PW6 and duly led him in examination-in-chief but failed to produce him for cross examination by the defence.
b. The Learned trial judge in one breath claimed to expunge the evidence adduced through PW6 by the Prosecution but in another breath utilize same evidence in convicting the Appellant.
c. The failure of the Prosecution to produce PW6 for cross examination renders the totality of his evidence( i.e his testimony and the exhibits tendered through him) useless such that same ought not to be used against the Appellant because the usage of same will automatically result in breach of the fundamental right of the Appellant to fair trial since the Appellant was deprived the right to cross examine him by the prosecution.
?To
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argue the appeal, learned counsel Mr. Musibahu Adetumbi filed a brief of argument on 30/04/2015 but same was deemed properly filed and served on 15/02/2016. According to the Appellant?s brief there is a single issue for determination in this appeal. He formulated and identified it as follows:-
– Whether an honest assessment of the totality of evidence on record justify the conviction of the Appellant by the Honourable Court below.
On behalf of the Respondent, learned counsel Mrs. Adedoyin Rhodes-Vivour filed a brief of argument on 23/02/2016. From the 7 grounds of Appeal, learned counsel on behalf of the Respondent, also formulated and argued her own sole issue for determination in this appeal. The lone issue is:-
– Whether the Respondent proved its case against the Appellant beyond reasonable doubt.?
While looking at the lone issue formulated by learned counsel Mr. Adetumbi, I said that it was irrelevant or even inappropriate in the circumstance because how are matters decided by the Courts other than by way of honest and proper assessment of the totality of evidence before them. In my humble view the formulation of that issue
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on behalf of the Appellant appears to me to be an improper and unwarranted attack on the approach of the Lower Court in the determination of the guilt or otherwise of the Appellant. I hope learned counsel Mr. Adetumbi will avoid the formulation of issues for determination in an appeal in a similar manner. The lone issue for determination formulated on behalf of the Respondent appears to me more appropriate in the circumstance. All these by the way, and notwithstanding a very interesting feature in this appeal must not go unnoticed or unreported. At paragraphs 4.8 to 4.13, pages 8 to 9 of the Appellant brief of argument, learned counsel can be taken to have done what in popular parlance is called ?throwing in the towel? by also maintaining and strongly suggesting that there is really nothing in law to urge on the Court that could favour the Appellant in the circumstances of this appeal. This is a commendable approach. He did not wish to take side against Arithmetic. He elected to drink from the wealth of experience of his elders in form of the well-established and settled principles of law in the decisions of the Supreme Court and this Court.<br< p=””
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Specifically learned counsel on behalf of the Appellant had this to say at pages 7 to 8 paragraphs 4.8, 4.9, 4.10 and 4.11 of his brief of argument.
?In the case at hand, the testimony of PW1 and PW2 are more than sufficient to corroborate Exhibit A. the contention of the prosecution at page 129 of the record that all factors that ought to be considered when an accused retracted his confessional statement are present in the case at hand appears to be too obvious such that it is difficult to contend the contrary.
My humble contention is that a honest assessment of the totality of the evidence on record made it extremely difficult for me to have anything to urge in favour of this Appellant. In ADELU v. STATE (2014) 13 NWLR (Pt.1425) at 490 PARA E, Rhode Vivour JSC observed thus:
?Turning to defence counsel, I must observe that it is the duty of counsel representing an accused person, especially one facing a capital offence to use all resources at his disposal, by that I mean his knowledge of the law to ensure that the accused person has the best defence possible.? Emphasis Supplied.
?My Noble Lords, within my little
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knowledge of law, I have done everything reasonable to see whether I can urge something in favour of the Appellant but I cannot find any. Afterall the Apex Court has warned that a minister in the temple of justice should not take ?sides against arithmetic?. In ENITAN V. STATE (1986) 3 NWLR (PT.30) 604 at 612 PARAS C ? D, that great jurist of inestimable value, Oputa JSC rebuked a minister in the temple of justice in a position such as which I find myself thus:
?Finally, I must commend Mr. Akinrele, S.A.N. for not hitting his head against a brick wall as Mr. Lardner, S.A.N. seemed to have done. If really there is nothing to urge in favour of an appellant, learned counsel has a right and owes the Court a duty to say so. There is nothing wrong in accepting the obvious but there is everything wrong in taking sides against arithmetic.?
As hard as I labored to find something reasonable to say in favour of this Appellant, I cannot find any without taking sides against arithmetic.?
By the foregoing bold and courageous surrender of counsel to the glory of the law, this appeal has become a no contest and rendered
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academic. It will serve no good purpose.
In consequence of that, it is hereby accordingly dismissed. The judgment of the Ogun State High Court is hereby affirmed.
HARUNA SIMON TSAMMANI, J.C.A.: I had read before now the judgment delivered by my learned brother, A. A. B. Gumel, JCA.
The Appellant’s learned counsel clearly saw no merit in this appeal, in view of the cogency of the evidence adduced at the trial against the Appellant. He did what is required of counsel in the circumstances. The conduct of counsel is commendable. On that note, I too, see no practical purpose to be gained or achieved by this appeal. It is accordingly dismissed. The judgment of the Court below is accordingly affirmed.
OBIETONBARA DANIEL-KALIO, J.C.A.: I have had the privilege of having a preview of the judgment of my learned brother Ali Abubakar Babandi Gumel JCA and I cannot agree more with the reasoning and conclusions reached therein.
The Appellant’s learned counsel honourably “threw in the towel” so to speak, having found that there is no redeeming feature in the Appellant’s case on appeal.
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That being the case, both the Appellant and Respondent’s learned counsel are on the same side with regard to the fate of the appeal and consequently there is really nothing to do here other than to play the role of an undertaker which in this instance means to dismiss the appeal.
The appeal is accordingly dismissed and the judgment of the lower Court is hereby affirmed.
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Appearances
Mr. Musibahu AdetumbiFor Appellant
AND
Mrs. Adedoyin Rhodes VivourFor Respondent
