BAMIDELE MOSES v. THE STATE
(2018)LCN/12241(CA)
In The Court of Appeal of Nigeria
On Thursday, the 6th day of December, 2018
CA/AK/229CA/2017
RATIO
EVIDENCE: WHO IS A VITAL WITNESS
“It is trite that the prosecution is not bound to call a host of witnesses but only such witnesses as are sufficient to prove its case. See the case ofAYENI V. THE STATE (2011) LPELR 4380. This Court and indeed the Supreme Court have also held in a plethora of cases that failure to call a vital witness is fatal to the prosecution’s case. See OCHIBA V. STATE (2011) 17 NWLR PT. 1277, 663 and EGBERE TAMU V. THE STATE (2014) LPELR 22615. What remains to be determined now in my view is whether Mr. Victor Ojo was a vital witness and what is the effect of Exhibit F, his statement to the Police vis-a-vis the failure to have him testify. In the case of OCHIBA V. STATE (SUPRA), ADEKEYE, JSC as he then was has defined a vital witness as “a witness whose evidence may determine the case one way or the other, and failure to call a vital witness is fatal to the prosecution’s case. In other words, a witness who knows something significant about a matter is a vital witness.'” PER PATRICIA AJUMA MAHMOUD, J.C.A.
EVIDENCE: WHERE THERE IS CONTRADICTION IN EVIDENCE
“It is therefore of no moment in this appeal. It is elementary in law that it is only material contradictions in the evidence of the prosecution which goes to the root of the case as to raise doubt in the mind of the Court that will warrant such doubt being resolved in favour of the appellant. See the decision of this court in the case of AKEREYELI V. STATE (2015) LPELR 25811.” PER PATRICIA AJUMA MAHMOUD, J.C.A.
JUSTICES
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
RIDWAN MAIWADA ABDULLAHI Justice of The Court of Appeal of Nigeria
PATRICIA AJUMA MAHMOUD Justice of The Court of Appeal of Nigeria
Between
BAMIDELE MOSES Appellant(s)
AND
THE STATE Respondent(s)
PATRICIA AJUMA MAHMOUD, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of the High Court of Justice, Akure presided over by HON. JUSTICE D. I KOLAWOLE, delivered on the 7th day of July, 2017, wherein the appellant together with three other co-accused were charged and tried on a four count charge of Conspiracy to commit Armed Robbery and Armed Robbery contrary to Sections 6(b) and Section 1 (2) (b) of the Robbery and Firearms (Special Provisions) Act, respectively.
The case of the prosecution was that on or about the 26th day of April, 2010 the appellant (2nd defendant) and his three co-defendants, armed with offensive weapons connived and robbed one Victor Ojo of his Toyota Camry car and in a desperate bid to escape with the vehicle, they had a head on collision with another vehicle, thereby facilitating their arrest by the Police patrol team. That prior to this, on the 7th day of April, 2010, the appellant with his constable co-accused and colleague and two others, also armed with offensive weapons conspired and robbed one Pastor Ayodele Joseph also of a Toyota Camry car.
In proof of its case, the prosecution called four witnesses and tendered seven (7) exhibits, marked as Exhibits A, A1, B, C, D, E, & F. The appellant on the other hand, testified in his defence and called no other witness.
At the conclusion of hearing, the trial Court in its judgement delivered on the 7th day of July, 2017 discharged and acquitted the appellant and the other co-accused persons on the charge of Conspiracy and Armed Robbery of the 7th day of April 2010 against one pastor Ayodele Joseph of Osa Quarters. He however found them guilty of conspiracy to commit armed robbery and armed robbery of the robbery of the 26th day of April, 2010 against one Mr. Victor Ojo and convicted them accordingly. The learned trial judge discharged and acquitted the 4th accused person, Manfred Aduku for want of evidence.
Dissatisfied with the conviction and sentence, the appellant approached this Court vide a Notice of Appeal dated the 21st day of September, 2017 and filed on the 22nd day of September, 2017 containing six (6) grounds of appeal:
1) The learned trial judge erred in law when he held that the prosecution had proved the guilt of the appellant beyond reasonable doubt.
2) The learned trial judge erred in law when His Lordship relied on the contradictory/hearsay testimonies of PW1, PW3 & PW4.
3) The learned trial judge erred in law when he held that Section 167(d) of the Evidence Act deals with suppression of evidence and not suppression of witnesses.
4) The learned trial judge erred in law and facts when he failed to properly evaluate the claims that Exhibit ‘D’ which was the gun allegedly used for the robbery had not been fired for the past three months prior to the day of the incident.
5) The learned trial judge erred in law when he placed much reliance on Exhibit ?B? the extra-judicial statement credited to the Appellant after same had been objected to on ground of involuntariness.
6) The learned trial judge erred in law when he speculated and held as follows; The victim of the robbery, Victor Ojo in his statement, Exhibit F said that there was shooting that night but his adjective that it was ‘shooting sporadically’ maybe an exaggeration.
At the hearing of the appeal, the appellant’s brief dated on the 8th day of December, 2017 but filed on the 11th day of December, 2017 was adopting by MR. ADEDEFE ONI of counsel as their legal arguments in support of their appeal. In it, counsel formulated three issues for the resolution of this appeal as follows:
1) Whether the trial Court was right to have admitted and relied on the uncorroborated Exhibit ‘B’ against the appellant, the prosecution having failed to call vital witness to prove the voluntariness of same against the contention of the appellant that same was not voluntarily made by him. (Ground 5).
2) Whether from the circumstances of this case, the failure of the prosecution to call vital witnesses during trial-within-trial and in the main trial was fatal to the case of the prosecution before the trial Court. (Ground 3).
3) Whether from the facts and evidence available before the trial Court coupled with obvious material contradictions in the evidence of the prosecution witnesses, the trial Court was right to have held that the prosecution proved beyond reasonable doubt the charge of conspiracy to commit armed robbery and armed robbery to warrant the conviction and sentence.(Grounds 1 2 & 4).
Arguing issue one, learned counsel to the appellant, Mr. ADEDEFE ONI submitted that the trial judge erred in law when he admitted and relied on the uncorroborated Exhibit B to convict the appellant. He further submitted that failure of the prosecution to call Corporal Wale Ojesola and Inspector Micheal Isichei, who the appellant alleged joined forces with PW3 to torture him before Exhibit B was obtained from him and failure to call as a witness ASP Jimoh Ayinde, to whom same was allegedly taken for attestation was fatal to the case of the prosecution during the trial-within-trial.
Learned counsel contended that the evidence extracted from the testimony of the appellant during the trial-within-trial was never discredited which was in violation of Section 29(2) of the Evidence Act 2011. Counsel relied on the case of EBEINWE V STATE (2011) 7 NWLR PT 1246, 402 AT 416 PARA D to submit that the law is trite that undiscredited evidence is always taken to be true. Counsel referred this Court to pages 54-55, lines 7-26 and lines 1-2 respectively of the printed records. Learned counsel submitted that one Mr. Moses Marakinyo testified before the Court of the pathetic condition he met the appellant in at SARS, Akure which was not discredited and counsel relied on the case of MAJOR AMACHREE V NIG. ARMY (2003) 3 NWLR PT. 807, 256 to further submit that the Court will presume Section 167(d) of the Evidence Act 2011 where the prosecution fails to call the investigating officer against whom an accusation of inducement or threat was made in respect of a confessional statement, noting that the prosecution must call a particular witness whose evidence is material for the resolution of a vital point in issue.
He placed reliance on the case of ARCHIBONG V STATE (2004) 1 NWLR PT 853, 488 RATIO 8. Counsel relied on the case of HARUNA V KOGI STATE HOUSE OF ASEMBLY (2010) 7 NWLR PT. 1194, 604 AT 636-637 to further submit that this honorable Court can expunge the wrongly admitted evidence. Learned counsel to the appellant further contended that the trial judge failed to show how the confessional statement passed the veracity test before he acted on it. That failure of the learned trial judge to subject the confessional statement to the veracity test as stipulated by the apex Court in the case of GABRIEL V THE STATE (2010) 6 NWLR PT. 1190, 280 AT 326 PARAS A-D has occasioned a miscarriage of justice against the appellant. He humbly urged this Court to so hold.
In arguing issue two, Mr. ADEDEFE ONI of counsel contended that the failure of the prosecution to call the investigating officer Mr. Wale Ojesola and the superior officer ASP Jimoh Ayinde before Exhibit B was admitted is incurably fatal to the case of the prosecution.
He relied on the case of FOLARIN V THE STATE (1995) 1 NWLR PT 371, 314 to contend that whenever there is any doubt in the case of the prosecution, such doubt should be resolved in favor of the accused person. Counsel canvassed that the failure of the prosecution to call Mr. Victor Ojo, the alleged victim of the robbery who was a vital witness was fatal, being unable thereby to be cross examined on his extra-judicial statement, Exhibit F. Counsel further drew the attention of the Court to page 143 lines 19-21 of the printed records where the prosecution admittedly conceded that they were not able to call their vital witnesses.
Counsel relied on the case of FRAMO NIG. LTD V DAODU (1993) 3 NWLR PT 281 Ratio 3 and further submitted that the trial Court failed to appreciate that its judgment was heavily based on Exhibits F and B. Learned counsel finally submitted that failure of the prosecution to call the victim amounts to withholding of evidence contrary to Section 167(d) of the Evidence Act 2011. He relied on the decision of the apex Court in the case of AKU NMECHA TRANSPORT SERVICE NIG LTD (ANTS) and ORS V S. D ATOLOYE (1993) 6 NWLR PT. 298, 233 Ratio 21 and humbly urged this Court to hold that the failure to call Mr. Victor Ojo, CPL Wale Ojesola and ASP Jimoh Ayinde was fatal to the case of the prosecution and to resolve this issue in favor of the appellant.
On issue three, learned counsel to the appellant, relied on the case of KOLAWOLE V THE STATE (2015) ALL FWLR PT. 778, 590 PARAS G-H to submit that the prosecution relied on the inadmissible hearsay evidence of PW3 and PW4 and the uncorroborated confessional statement ascribed to the appellant which was objected to on the ground of involuntariness. Learned counsel also referred the Court to the case of SUNDAY V THE STATE (2013) ALL FWLR PT. 682 1821 AT 1821 PARAS G-H which stipulates the ways in which the prosecution can prove the ingredients of the alleged offence.
He pointed out that the trial Court was wary to rely on Exhibit F and he referred this Court to page 182 Lines 8-9 of the printed records. He relied on the case of AMADI V NWOSU (1992) 5 NWLR PT 241, 273 to submit that the law is trite that the purpose of cross examination is to test the veracity of a witness. Learned counsel further contended that the prosecution failed to prove that there was an armed robbery against Mr. Victor Ojo and there was nowhere in the evidence of the two police officers to show that they visited the scene of crime, tendered the robbed car nor the release bond to establish that the car was released to him after it was recovered.
Counsel further submitted that the appellant was arrested in company of the 1st defendant and that a police rifle and 20 ammunitions recovered in the car of the 1st defendant was lawfully issued to the 1st defendant by the Oda Police clerk. He further submitted that there was a material contradiction between the evidence of PW3 and PW4 which the Court ought to have taken into consideration. Counsel referred this Court to page 69 lines 11-14 of the printed records and page 71 lines 5-12 and 18-23 of the printed records. He placed reliance on the case of NWOSU V STATE (1986) CLR 7 (F) SC.
Counsel further argued that Mr. Victor Ojo stated that the assailants shot sporadically to scare him and this was not in tandem with Exhibit A credited to the 1st defendant as the 20 live ammunitions allocated to him were still intact at the time of his arrest. He referred this Court to page 75 line 10 of the printed records. Learned counsel contended that the 1st defendant stated in his evidence before the trial Court that the appellant was detained because he was with him and also that the DPO, Ijapo wanted to suffer him because he has interest in his fiance who was a police woman and the said fiance had not agreed to his (DPO) advances.
Learned counsel further contended that the 3rd defendant testified at the trial Court that he did not know the appellant that it was Corporal Wale Ojesola that forced him to sign Exhibit C. He relied on the case of AWOSIKA V STATE (2010) 9 NWLR PT. 1198, 96 to submit that the evidence of PW3 is hearsay as he did not see the robbed car and there was no evidence to show that he visited the crime scene.
Counsel referred this Court to page 46 lines 12-27 of the printed records. He placed reliance on the case of OKEJI V OLOKOBA (2000) 4 NWLR PT. 654, 515 AT 530 PARAS D-E to submit that it is not for the trial judge to find explanations for the material contradictions in the evidence of prosecution witnesses.
Learned counsel to the appellant further submitted that the law is trite that a trial Court is to exercise utmost care and caution before convicting for an offence that carries the death penalty. That the evidence that will ground conviction must be unwavering, solid and unequivocal. He placed reliance on the cases of RASAKI V THE STATE (2011) 16 NWLR PT 1273, 251 AT 284 and SHELL PETROLEUM DEV. CO. LTD V OLAREWAJU (2008) 18 NWLR PT. 7118 1 AT 21.
The appellant’s reply brief on points of law dated and filed on the 18th day of October, 2018, but deemed properly filed on the 22nd day of October, 2018, was also adopted by MR. ADEDEFE ONI of counsel to the appellant as part of his argument in support of this appeal. In it counsel reacted to the issues raised by the respondent’s counsel on points of law. Mr. ADEDEFE ONI relied on the case of IFARAMOYE V THE STATE (2017) 4 SCM AT 36 PARAS A-C to submit that a member of the police investigation team who was not the person that took down the statement of the accused cannot tender same in evidence. He further submitted that the facts in AWOSIKA V THE STATE (2010) 9 NWLR PT. 1198, 96 are not the same in the instant case.
He further contended that OGUNO V STATE (2016) 6 SCM 145 was not reported in 2016 SCM nor 2015 SCM and urged this Court to ignore same. Learned counsel canvassed that the fact that a police officer was present when the statement was being recorded would not qualify him to tender the statement in evidence because whatever he heard from the transaction will amount to hearsay, noting that the recorder or interpreter of the statement must be called to testify for the purpose of being cross examined on the veracity or other wise of his evidence.
He further canvassed that the decisions in OGUNO V STATE (2016) 6 SCM 145 assuming it was reported, is bound to follow the latter or last decision of the Supreme Court. He placed reliance on the case of OSAKUE V F.C.E ASABA (2010) 10 NWLR PT 1207, 1 AT 29, PARAS G-H, 34 PARA B and humbly prayed this Court to hold that the evidence of PW3 is hearsay and that Exhibit B is inadmissible in line with the recent judgment of the Supreme Court in IFARAMOYE V THE STATE (SUPRA).
On the correctness of the record of appeal, counsel relied on the case of NDAYAKO V MOHAMMED (2006) 17 NWLR PT. 1009, 655 to submit that where records have been compiled and transmitted to the appellate Court, there is a presumption that the record is correct and anyone who intends to challenge the correctness must file an affidavit. And since none was filed, it must be assumed that the respondent admitted the record as stated on page 163 lines 19-20 and page 187 lines 28-31. He further placed reliance on the case ofRAPHEAL ONWUANUMKPE V REUBEN ONWUANUMKPE & ORS (1993) 8 NWLR PT 310, 186 R 13.
On the meaning of corroboration, learned counsel relied on the apex Court case of OKABICHI V STATE (1975) 3 SC, 96 to contend that if this Court expunges Exhibit B, the alleged confessional statement of the appellant, there is no evidence against the appellant in connection with the alleged conspiracy to commit armed robbery and armed robbery upon which the appellant was convicted. He humbly prayed the Court to allow this appeal.
Counsel finally submitted that the prosecution having failed to prove beyond reasonable doubt the robbery of 26/4/10 against the appellant, it has no case against him. He therefore urged this Court to discharge and acquit the appellant. He placed reliance on the admonition of his lordship, ESO, JSC in NWOSU V THE STATE (1986) 4 NWLR PT. 35, 348 AT 359 and urged this Court to allow this appeal.
The Respondent’s brief of argument dated the 11th day of September, 2018, filed on 12th day of September,2018, but was deemed properly filed on the 22nd day of October, 2018 was settled by Mrs G.A OLOWOPOROKU (DPP), MOJ Akure, Ondo State. In adopting the brief the learned DPP formulated two issues for the determination of the Court as follows:
i. Whether from the voluntary confessional statement of the appellant and other pieces of strong circumstantial evidence in this case, the trial Court was right in convicting the appellant. (Grounds 1, 5 & 6 of the Notice of Appeal)
ii. Whether the trial Court was right in convicting the appellant in the light of minor contradictions in the prosecution’s case and its inability to call some of its material witnesses (Grounds 2, 3 and 4 of the Notice of Appeal).
In arguing issue one, the learned DPP relied on the case of SALAWU V THE STATE (2011) 10 SCM, 91 PARAS H-I to submit that once a confessional statement is admitted in evidence, the Court is bound to act on it. She further submitted that a mini-trial was conducted in order to resolve the objections of the appellant’s counsel. She contended that Exhibit B was taken before a superior officer and further contended that any member of the police investigation team can tender statements made by an accused person, provided he was present when the statement was recorded. She placed reliance on the case of OGUNO V STATE (2016) 6 SCM 145.
Learned counsel relied on Section 88 of the Evidence Act 2011 to submit that the evidence of the victim who was not cross examined is admissible. She placed reliance on the case of OKONJI & ORS V GEORGE NJOKANMA (1999) 12 SCNJ 254 AT 273. She contended that the evidence of Pastor Ayodele Joseph Asekere and Victor Ojo were never controverted nor contradicted and urged this Court to hold that it was proved that there were robberies on 7th and 26th April 2010. Learned counsel relied on Exhibits A and B to submit that the robbery in question was armed robbery. The learned DPP further submitted that the assessment and ascription of probative value to a piece of evidence is the primary duty of the trial Court. She placed reliance on the case of AFOLALU V THE STATE (2010) 11 SCM, 22 PARAS E- G to further submit the Exhibit B speaks volumes of the active participation of the appellant in the robbery incident. Counsel referred this Court to Page 19 lines 24-28 of the printed records.
Learned counsel contended that corroboration is only desirable and not a mandatory requirement for confessional statements. She further contended that the 1st-3rd accused persons’ confessional statements scaled all the hurdles which made the trial Court to act upon them. Counsel referred this Court to page 183 lines 29 -31 and page 184 lines 1-5 of the printed records. The learned DPP submitted that dismissing the police investigation evidence as hearsay evidence will amount to jeopardizing the fabric of our criminal justice administration system and urged this Court to discountenance the appellant’s contention in this regard. She also placed reliance on the doctrine of recent possession as was decided in the case of OKIEMUTE V THE STATE (2016) 12 SCM, 113 PARAS A-E
The learned DPP of counsel for the respondent, canvassed that the inability of the prosecution to produce the vehicle which was robbed cannot prejudice its case and urged this Court to hold that the trial Court was right in holding that the appellant was active during the commission of the crime and this was sufficiently established.
On issue two, the learned DPP relied on the case of SUNDAY V THE STATE (2013) ALL FWLR PT. 682, 1821 PARAS G-H to submit that where a material witness cannot be brought to Court, such will not accord to the defendant a blank cheque to freedom if there are other pieces of evidence with which the element of the offence can be proved. Learned counsel relied on the case of OLAYINKA V THE STATE (2007) 9 NWLR PT. 1040 561 to further submit that the appellant’s counsel can also call the vital witness if he thinks he has the magic wand. She contended that the alleged contradictions border on the evidence of the two police prosecution witnesses (PW3 & PW4) as to the number of ammunition recovered from the appellant, noting that the contradiction did not affect any important element of the offence. She placed reliance on the case of DIBIE & ORS V THE STATE (2008) 6 ACLR 307 AT 329.
Counsel also contended that the objection raised by the appellant on the failure to produce the maker of Exhibit F should only affect the weight to be attached to it which is the prerogative of the trial Court to determine in the light of other pieces of evidence that have been adduced and admitted. He placed reliance on the case of DAWA & ANOR V THE STATE (1980) NSCC 334.
The learned DPP finally submitted that where a nominal complainant loses interest in the prosecution of a case, the Court can use the available evidence in order to meet the justice of the case, noting that the appellant?s confessional statement having passed the requisite test is sufficient to establish the ingredients of the offences without Exhibit F since it is voluntarily made and believed to be true by the trial Court. The learned DPP urged this Court to uphold the decision of the trial Court and dismiss the appeal.
From the respective briefs in this appeal, the appellant formulated three issues for the determination of the Court. The respondent on its part raised two issues. The respondent’s issue (2) on material contradiction in the prosecution’s case can be subsumed in the appellant’s issues 3 and 1 while issue (1) of the respondent can be adequately considered under the appellant’s issue (3). Before I go into the merit of the issues formulated by the parties,
I should observe on the style often adopted by parties especially the respondent in reaction to issues for determination by the appellant. It should be noted that issues arise from the grounds of appeal. Any issue not arising from the grounds of appeal will be discountenanced. It is therefore logical that where a respondent has not crossed appealed it should as a matter of practice and for a more proper determination of the appeal adopt the issues raised by the appellant. It could then add more issues if it wants to. This practice of the respondent formulating entirely different issues from those of the appellant is a modern practice which should be discouraged.
It not only creates unnecessary work for the Court but more often than not makes it difficult for the respondent to answer adequately to the issues raised by the appellant which constitute the appeal. After all it is the appellant who appealed and the role of the respondent is simply to respond to the issues raised by the appellant after satisfying it’s self that they arise from the grounds of appeal. While still on this issue, I would also like to comment on another style of counsel, this time the appellant’s. There is this practice of appellant’s counsel when formulating issues for determination to write the ground(s) of appeal besides each issue.
What happens if like in this case the appellant?s counsel forgets to write a ground of appeal against an issue?
There are six grounds of appeal in this appeal. Under issue (1) the appellant has indicated ground 5, issue (2) ground 3 and issue (3) grounds 1, 2 and 4. Ground 6 is deemed abandoned, it not having been indicated under any issue. There lies the danger of this style which can sometimes be an innocent omission. It is a much better practice in my view where the litigant wants to abandon a ground of appeal to clearly do so and formulate its issues to come within the grounds of appeal it is proceeding with.
Issue (a), the first issue raised by the appellant is said to arise from ground 5 of the grounds of appeal. It appears to me to be an attack on the ruling of the learned trial judge delivered on the 27th day of November, 2014 pursuant to the trial within trial in which he admitted the confessional statement of the appellant in evidence as Exhibit B having found that same was made voluntarily. The arguments of counsel at page 6 from line 5.5 of his brief of argument confirm this contention. For the avoidance of doubt, I quote from line 5.4:
“My Lords, PW3 who testified for the prosecution during the trial within trial was not the police officer who took the alleged confessional statement from the appellant, … My Lords, it is submitted that failure of the prosecution to call CPL Wale Ojesola and Inspector Michael Isichei who the appellant alleged joined forces with PW3 to torture him before Exhibit B was obtained from him and failure to call as a witness ASP Jimoh Ayinde to whom same was allegedly taken to for attestation was fatal to the case of the prosecution during the trial within trial. The learned trial judge ought to have rejected the statement as the offence… This trend of argument against the ruling in the trial within trial continues up to page 9 para 10.4.
The ruling of the trial Court in admitting the confessional statement of the appellant is a valid decision of the Court. That I or another judge would have come to a different decision given the same facts is clearly irrelevant to the validity or competence of the said ruling. The decision therefore subsists and learned counsel with all due respect cannot question the validity or competency of the decision in the manner he seeks to do in his brief. This is for the simple reason that there was no interlocutory appeal against the said decision or ruling. Neither is there a ground of appeal against the said ruling even now in this appeal. Ground 5 of the grounds of appeal is not an appeal against the ruling of the Court admitting Exhibit B in evidence for being voluntary. I reproduce ground 5 for a better appreciation of the contention at hand:-
“The learned trial judge erred in law when he placed much reliance on Exhibit ‘B’ the extra-judicial statement credited to the Appellant after, same had been objected to on ground of involuntariness.”
This ground is clearly not an appeal against the ruling of the learned trial judge in which he determined the voluntariness of Exhibit B. Learned counsel should not be misconceived on the position of the law in respect of confessional statements. By Section 29(2) of THE EVIDENCE ACT, 2011, only a voluntary confession is admissible. Once the voluntariness of a confessional statement is challenged by an accused person when same is sought to be tendered in evidence by the prosecution the trial Court’s responsibility lies only in conducting a trial-within-trial to determine the voluntariness or otherwise of the said statement.
Once this is done and the trial judge is satisfied of its voluntariness and admits the statement as was done in this case, the issue of voluntariness is foreclosed safe the appellant appeals against the decision on the grounds that it is perverse and not based on evidence before the Court. Or like in this appeal for the appellant for the appellant to raise a ground of appeal against the admission, voluntaries not having been satisfactorily proved in the trial within trial. It is only then that the Court can look into such issues as to whether a witness in the trial within trial was a competent witness and whether or not the trial judge rightly believed the evidence or not.
In other words, I find that the jurisdiction of this Court can only be properly invoked to review the ruling of the Court in the face of an appeal against the said ruling or a ground of appeal challenging the said ruling. There being no such ground of appeal issue (a) and all the arguments on it that seek to attack the competence of the ruling are incompetent and I accordingly discountenance them.
What remains and competent of the arguments on issue (a) is as contained on pp 9-10 from para 10.5. This is to the effect that assuming without conceding that Exhibit B was voluntarily made, whether the learned trial judge subjected it to the veracity test as set out by the appellate Courts in the case of GABRIEL V. THE STATE (SUPRA) and three other cases as more particularly detailed at page 10, lines 1-6 from the top of the brief.
The six point veracity test being canvassed by learned counsel is:
1) Is there anything outside the confession to show it is true?
2) Is it corroborated?
3) Are the relevant statements made in it of facts true as far as they can be tested?
4) Was the defendant one who had the opportunity of committing the offence?
5) Is his confession possible?
6) Is the confession consistent with other facts which have been ascertained and have been proved?
These six points are not mutually exclusive. Indeed they are more or less different sides of the same coin. For example if there is anything outside the confession to show that it is true is nothing short of whether the confession is corroborated, etc. In the recent Supreme Court case of OKPAKO V. STATE (2018) 9 NWLR, PT 1624, 213 AT 226 PARAS E-G, after considering the six point veracity test the Court held that:
“In the instant case, the trial Court relied on the independent evidence outside the confession which corroborated the story in it.”
It follows that any one of the six points is sufficient to satisfy the test.
The learned trial judge found and placed reliance on corroborative evidence. He did not just convict the appellant on his confessional statement, Exhibit B alone. I refer to page 185 lines 4-19 of the printed records where the learned trial judge held as follows: –
“… The statement of the 1st defendant, though not binding on the 2nd defendant, showed that the 2nd defendant was part of the criminal gang that snatched the vehicle of Mr. Victor Ojo. The Supreme Court in the case of ADELEKE V. THE STATE (2013) 7 SCNJ (PT III) 745 AT 770 gave a situation where the statement of an accused can be binding on his co-accused. The Court per ODILI JSC said as follows:
‘that the evidence of a co-accused is not admissible against other accused persons is not a general rule that is taken hook line and sinker without exception. This is because where as in this case, there is a link or nexus from the contents of the statement of a co-accused or even his extra-judicial statement with a strong connection from other independent evidence then the exception is accepted as making the general rule aforesaid give way for the reality on ground.’
Furthermore, Mr Ojo’s statement, Exhibit F was clear that he identified two persons at the ‘A’ Division on 27th April, 2010 as part of those that robbed him and the two persons identified were Policemen. The 1st and 2nd defendants were Policemen and they were at ‘A’ Division Akure on 27th April, 2010.
The trial Court found two pieces of evidence to corroborate the confessional statement of the appellant, Exhibit B. It must be borne in mind that this corroborative evidence is not required to be one that establishes the guilt of the appellant beyond reasonable doubt. The requirement is to have some evidence no matter how slight outside the confession that makes it probable that the confession is true. These two pieces of evidence according to the trial judge are the testimonies of the 1st defendant in the trial Court as contained in Exhibit A. In Exhibit A which the learned trial judge properly admitted in evidence after a trial within trial the 1st defendant stated that:
“On 26/4/2010 at about 18.20, I went to the station officer to booked (sic) a rifle which he said he will collect his share of the deal which I took PC Bamidele Moses and pick Ige from Oda town which we move down to my girlfriends moreso when I could not find her I left to Plaza area where we collected a Toyota Camry from one Mr. Ojo… The Camry which expose us the role I played was that we flash with touch while the owner of the said stopped. PC Moses demanded for his particulars which I ask to open the boot which I ordered him to run away which he comply. I was in possession of AK2 rifle which I fire shot into the air to scare the owner which I called the station officer on phone and he brought one life ammunition to me…”
The learned trial judge did also use Exhibit F. This is the statement of the victim, Mr. Victor Ojo. The prosecution could not trace him. So they had to tender in evidence the complaint (statement) that he made to the Police. I agree with the learned trial judge that he could properly use Exhibit F to corroborate the confessional statement of the appellant Exhibit B. I would come to this later in the judgement. In Exhibit F, Mr Ojo said that he was stopped by four people who pretended to be Policemen for checking.
That he was asked to open the booth of his car and to give them his particulars. That he opened the booth and was about to go and get the particular when he was ordered to drop his key turn back and run. This account is similar to Exhibit A and corroborates Exhibit B. I so hold. I therefore resolve issue (1) against the appellant and in favour of the respondent.
The appellant’s issue two is whether from the circumstances of this case before the trial Court, the failure of the prosecution to call vital witnesses during the trial-within-trial and in the main trial is fatal to the case of the prosecution. I have already found in this judgment that there is no appeal against the ruling of the learned trial judge in the trial within trial in which he admitted the confessional statements of the appellant and his co-accused in the Court below and that there is also no ground of appeal in this appeal challenging that process of the trial within trial.
Therefore the propriety of the trial within trial and whether the ruling resulting there from is perverse or not is not a life issue in this appeal. And to borrow the words of the learned trial judge, I refuse to be ‘sucked into that issue’.
Consequently I discountenance all arguments on this issue that pertain to the trial within trial. This brings us naturally to the main or substantive trial. And the question to answer is whether the failure of the prosecution to call Mr. Victor Ojo, the complainant/victim, a vital witness was not fatal to their case. There is no dispute between the parties that the prosecution has no responsibility to call a given number of witnesses but only such witnesses sufficient to prove its case. In the instant case there is no evidence of failure of the prosecution to call Mr. Victor Ojo. This instant case has had a chequered history. The alleged offence was committed in 2010.
The trial commenced in 2011 before Hon. Justice F. O Aguda-Taiwo who was appointed president of the Ondo State Customary Court of Appeal before he could conclude the case. Sadly, vital prosecution witnesses including Mr. Victor Ojo had testified. When the matter started de novo in 2013 before the current judge some of the vital witnesses including Mr. Victor Ojo had lost interest in the matter understandably so as he had collected his Toyota Camry car, the subject matter of the robbery. After all efforts to get the said Mr. Victor Ojo to testify proved abortive, the prosecution tendered his statement to the Police.
The lower Court admitted it as Exhibit F in the proceedings.
The appellant’s counsel had argued that failure to call Mr. Victor Ojo amounts to withholding evidence contrary to SECTION 167(a) of the EVIDENCE ACT, 2011. He urged the Court to make a presumption that this amounted to suppression of evidence within the meaning of the Section. This issue was raised by counsel in the lower Court during their address. My humble view is that the learned trial judge adequately dealt with it and I agree with him that SECTION 167(d) of the EVIDENCE ACT deals with suppression of evidence and not exclusion of witnesses. It is trite that the prosecution is not bound to call a host of witnesses but only such witnesses as are sufficient to prove its case. See the case ofAYENI V. THE STATE (2011) LPELR 4380. This Court and indeed the Supreme Court have also held in a plethora of cases that failure to call a vital witness is fatal to the prosecution’s case.
See OCHIBA V. STATE (2011) 17 NWLR PT. 1277, 663 and EGBERE TAMU V. THE STATE (2014) LPELR 22615. What remains to be determined now in my view is whether Mr. Victor Ojo was a vital witness and what is the effect of Exhibit F, his statement to the Police vis-a-vis the failure to have him testify. In the case of OCHIBA V. STATE (SUPRA), ADEKEYE, JSC as he then was has defined a vital witness as “a witness whose evidence may determine the case one way or the other, and failure to call a vital witness is fatal to the prosecution’s case. In other words, a witness who knows something significant about a matter is a vital witness.”
Mr. Victor Ojo was the complainant in this case. He was the one robbed of his Toyota Camry car. The appellant made a confessional statement to the Police which the trial Court found to be direct and positive and sufficient to ground his conviction. There are plethora of authorities including the more recent decision of the Supreme Court in the case of OKPAKO V. STATE (SUPRA) AT 224 PARAS H-A where it was held that an accused person can be convicted on his confessional statement alone. The Court however pointed out that it is desirable to
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have, outside the confession, some evidence which makes it probable that the confession was true. This the learned trial Court found in Exhibits A, C and F. I hold that these constitute sufficient evidence outside the confession that make it probable that the confession is true. It follows from the case of OCHIBA V. THE STATE (SUPRA) that since the evidence of Mr. Victor Ojo alone would not have determined this case one way or the other he was not a vital witness in the circumstances of this case. He may have been an important or material witness but not a vital witness. This is especially true as the conviction was secured without his testimony. I hold therefore that his failure to testify or the failure of the prosecution to call him is not fatal to the prosecution?s case as the trial judge properly convicted the appellant on his confessional statement and got corroborative evidence in Exhibits A, C and F. In these types of cases corroboration is only as a matter of rule of practice and not as a statutory requirement. Where this is the case Niki Tobi, JSC (as he then was) in OGUNBAYO V. STATE (2007) 3 SC, PT III, 29 held that such corroboration needs
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not consist of direct evidence that the accused did commit the offence alleged nor must it amount to a confirmation of the whole account given by the witness. The only important requirement is that the evidence corroborates the evidence in some respect material to the charge. See also the decision of this Court in NWANKWOALA V. STATE (2005) 12 NWLR, PT. 940, 637 AT 679, PARAS E-F. I hold that Exhibits A, C and F, even just one of them has satisfied this condition as set out by the Supreme Court and I so hold.
Then there is the nutty question of Exhibit F, the extra judicial statement of Mr. Victor Ojo which the Court below admitted and used as corroborative evidence for Exhibit B. The appellant counsel had contended also in the Court below that since the complainant could not be cross examined, the admission was wrongful and ought to be expunged. I have not seen any statutory or case law that guides the admission of the extra judicial statement of a complainant when the prosecution is unable as in this case to secure his attendance for the purposes of giving evidence. The closest I got was the decision of this Court in the case of CHUKWU V. THE STATE (2012) LPELR-15360.
In that case, my learned brother Tsammani, JCA relied on the Supreme Court case of ESANGBEDO V. STATE (1989) 4 NWLR PT. 113, 57 AT 66 PARA F where the Court held that they cannot ‘look at the extra judicial statements of PW1, PW2 PW4 and PW9 which were not tendered as exhibits during the trial, because those statements cannot be legal evidence. An appellate Court is bound to base its consideration of every appeal before it upon legal evidence upon which the Court below acted. Even in the Court of trial, the only proper use that could have been made of those extra-judicial statements of witnesses was to have used them for cross examination of those witnesses in order to discredit their testimony …”
I can make bold to infer from the decision of the Supreme Court in ESANGBEDO V. STATE (SUPRA) that in the instant case the extra judicial statement of Mr. Victor Ojo having been admitted in evidence and therefore become legal evidence, the Court below properly acted upon it, not as a basis for the conviction of the appellant but only to show that the complainant made a complaint to the Police about being robbed of his Toyota Camry car on the night in question and thereby used Exhibit F to corroborate the confessional statement of the appellant.
Assuming that I am wrong in this assumption and the learned trial judge did indeed wrongfully admit Exhibit F, the situation is saved by SECTION 251(1) OF THE EVIDENCE ACT, 2011. It provides as follows:
(1) The wrongful admission of evidence shall not of itself be a ground for the reversal of any decision in any case where it shall appear to the Court on appeal that the evidence so admitted cannot reasonably be held to have affected the decision and that such decision would have been the same if such evidence had not been admitted.
See the Supreme Court case of ARCHIBONG V. THE STATE (2006) 14 NWLR PT 1000 349 and its more recent decision in ITU V. THE STATE (2016) LPELR 26063. It is clear from the decision of the trial Court particularly at page 182 of the printed records that his decision was not based on Exhibit F. Exhibit F was at best used to corroborate Exhibit B. The learned trial judge also found on the same page of the records that Exhibits A and C also corroborate Exhibit B.
In other words, the decision would be the same even if you take out Exhibit F on the grounds that it was wrongfully admitted. I therefore find no reason to interfere with the judgment of the lower Court even on the basis that Exhibit F was wrongfully admitted in the circumstances of this case.
Before concluding on this issue, it is pertinent to consider the contention of the appellant’s counsel in his reply brief. Counsel contended that the case of OGUNO V STATE (SUPRA) cited by his learned friend for the respondent either has a wrong citation or it does not exist at all. Learned counsel to the Appellant is right that the learned DPP for the respondent put a wrong citation for the Supreme Court case which in fact does exist. The correct citation for the case is (2013) 15 NWLR, PT 1376, 1. It may well have been reported in the SCM but the year would definitely be 2013. This case, which is a Supreme Court decision is authority for the proposition that any member of a police investigation team can tender the recorded statement made by an accused person provided that he was present when the alleged statement was recorded.
The appellant’s counsel on the other hand referred to the Supreme Court case of IFARAMOYE V. THE STATE (2017) 4 SCM as authority for the principle that where the confessional statement is tendered through a Police officer other than the maker, it is inadmissible and is hearsay. That this decision being a latter decision of the Supreme Court in conflict with the earlier decision of OGUNO V THE STATE (SUPRA), I am bound by it. That Exhibit B having been wrongfully admitted should be expunged from the records. That this would leave the prosecution with no evidence to sustain the conviction of the appellant. That the Court should allow the appeal, discharge and acquit the appellant.
I am in agreement with learned counsel to the appellant that where a lower Court is faced with two decisions of a superior Court, the latter in time is to be preferred. See the decision of this Court in FABUNMI V UNIVERSITY OF IBADAN & ANOR (2016) LPELR 41132 which followed and applied the decision of the Supreme Court in IKENI V. EFAMO (2001) 10 NWLR PT. 720, 1. I must take a moment to observe, firstly that the citation of IFARAMOYE V. THE STATE (SUPRA) is incomplete.
Secondly I saw the Court of Appeal decision but could not see the Supreme Court decision on Law Pavillion Prime. More importantly even from the quoted portion of the alleged judgment, it is apparent that the authority is distinguishable from the instant case. It talks of Police Officer who recorded the statement and the interpreter or translator who acted as interpreter (translator) when the said statement was obtained did not testify, the confessional (emphasis mine) statement is hearsay evidence and the accused person is entitled to an acquittal. In the instant case, the appellant was a police man. CPL Wale Ojesola did not record the statement of the appellant.
The appellant wrote down his statement by himself as clearly discernable from the printed records. No officer interpreted or translated anything to him. This case is not on all fours with the cited case. We are then confronted with case of OGUNO V. THE STATE (SUPRA) which held that the confessional statement of the appellant was properly admitted when it was tendered through another Police Officer who was not the maker. Drawing from this authority, I hold that the tendering of Exhibit B through PW3 who was a member of the investigation team did not without more make the said Exhibit B hearsay and inadmissible. From my findings thus far I hold that this issue is resolved in favour of the respondent and against the appellant.
Issue 3 of the appellant is whether the prosecution has proved its case beyond reasonable doubt in view of material contradictions in the evidence of the prosecution to warrant the conviction and sentence of the appellant. The main contradiction that the learned counsel made heavy weather of is the discrepancy in the quantity of live ammunitions given to the appellant?s co-accused; whether it was 20 or 21. The learned counsel also made reference to Exhibit F in which he contended that the victim stated that his assailants shot sporadically into the air. In one breath counsel referred to Exhibit F as inadmissible. In another breath he is using the same exhibit to allege contradiction in the evidence of the prosecution. Learned Counsel cannot approbate and reprobate at the same. I find that most of the arguments of counsel on this issue are a rehash of his arguments on the preceding issues for which I have already made findings.
The contradictions complained about in my view are not material contradictions. The offence of armed robbery is complete once the perpetrator is armed either with a firearm or other offensive weapon(s) or in the company of someone so armed. There need be no shooting of any gun. There is no doubt that the appellant’s co-accused Henry Ubogu was carrying a K2 rifle on the day of the robbery. That himself and the appellant were in Police uniform. The combination of the rifle and the uniform would put fear into the victims and it is irrelevant whether the gun was fired once, at all or sporadically. That does not add anything to the offence. It is surplus age. It is therefore of no moment in this appeal. It is elementary in law that it is only material contradictions in the evidence of the prosecution which goes to the root of the case as to raise doubt in the mind of the Court that will warrant such doubt being resolved in favour of the appellant. See the decision of this court in the case of AKEREYELI V. STATE (2015) LPELR 25811.
There is the ancillary issue that the appellant’s co-accused was legally given the rifle or firearm in question.
I hold that even if the appellant’s co-accused carried the firearm they used to aid the robbery lawfully, their using it for an unlawful purpose does not exempt them from the long arm of the law.
The issue was also raised that the appellant was not taken before a Superior Police Officer with his confessional statement. Although it is not the requirement of the law in Nigeria, the practice of taking an accused person along with his confessional statement to a superior police officer where the accused confirms the statement has been highly commended and gives extra assurance of fairness to the accused person and the voluntariness of his confessional statements not so treated should not necessarily be viewed with suspicion. See the case of DIBIE V. STATE (2007) 9 NWLR PT 1038, 30. I find that issue 3 is also resolved against the appellant and in favour of the respondent. Consequently this appeal fails. Same is accordingly dismissed.
The conviction and sentence of the appellant by the learned trial judge on the 7th day of July, 2017 is hereby affirmed.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: I agree that the appeal be dismissed. The extra Judicial statement of a witness made in the prosecution of an offence may be used in cross-examining the witness with a view to testing his veracity or impeaching his testimony in Court; it cannot be used as corroborative evidence in proof of a charge.
However, it can be used to corroborate the fact of a report of the incident or the fact that what the victim has testified to was the same as the maker of the extra judicial statement.
Aside the few remarks above, I associate wholly with the resolution of all the Issues against the Appellant and also dismiss the appeal.
RIDWAN MAIWADA ABDULLAHI, J.C.A.: I had the privilege of reading before now the judgment of my learned brother, PATRICIA. A. MAHMOUD, JCA. just delivered. His lordship has meticulously resolved the issues in this appeal. I agree entirely with the reasoning and conclusion of my learned brother that this appeal is lacking in merit and that it should be dismissed.
The law is settled that in a charge of armed robbery, what is required of the prosecution is to prove that there was an armed robbery and the accused person was one of the robbers.
The prosecution is not bound to call a host of witnesses before it can be said to have discharged its duty of proof beyond reasonable doubt. A single credible witness can establish a case beyond reasonable doubt and a Court is entitled to act on the evidence unless where the law requires corroboration. See EFFIONG V. STATE (1998) 8 NWLR (PT. 562) 367.
In the case of ALI & ANOR. V. THE STATE (1988) 1 SC 35. His Lordship Oputa, JSC stated the law on this issue succinctly, where he stated thus:
“As far back as 1848 in the case of REG V. EDWARDS UNDERWOOD & EDWARDS (1848) 3 COX C. C. 82 the law has been that counsel for the prosecution is not bound to call all the witnesses whose names appear at the back of the bill of indictment.
In 1941 the West African Court of Appeal in R V. GEORGE KUREE (1941) 7 WACA 175 AT P. 177 noted that the duty of the prosecution is to place before the Court all available and relevant evidence. Unless and except in cases where corroboration is needed by law or by practice one solitary relevant and credible witness can establish the case for the prosecution on an essential point. ?
The need to call witnesses at all arises from the duty the law imposes on the prosecution to prove the essential ingredients of the offence charged.”
With regard to the issue that the appellant was not taken before a superior police officer with his confessional statement. The attestation of an accused person confessional statement before a superior police officer is in compliance with the judge’s rule. It is not a legal requirement and non-compliance with it would not render inadmissible the confessional statement, as it is not the requirement of any law to do so. See EHIMIYEIN V. STATE (2016) 16 NWLR (PT. 1538) 173; DAIRO V. FRN (2012) 16 NWLR (PT. 1325).
It is for these and the more detailed reasoning of his Lordship, PATRICIA. A. MAHMOUD, JCA that I concur that this appeal should fail. I also dismiss the appeal and affirm the lower Court’s judgment.
Appeal dismissed.
Appearances:
Mr. John Olowookere with him, Mr. Opeyemi OmoboyeFor Appellant(s)
Mrs. G.A Olowoporoku (DPP, Ministry of Justice, Akure) with her, Mr. D. C. Olafimihan (ACLO)For Respondent(s)
