ALABA AJEWOLE v. THE STATE
(2019)LCN/13636(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 10th day of July, 2019
CA/AK/132CB/2013
RATIO
FAIR HEARING: TEST TO DETERMINE WHETHER THERE WAS FAIR HEARING IN A CRIMINAL TRIAL
The test of determining whether there was a fair hearing in criminal cases is always the impression of reasonable people present in the open Court and listening to the proceedings. See the cases of: (1) Mohammed V. Kano N. A. (1968) 1 All NLR p. 424; (2) Gaji V. State (1975) 1 All NLR p. 266; (3) Effiom V. State (1995) 1 NWLR (Pt. 373) p. 207; (4) Uguru V State (2002) 9 NWLR (Pt. 771) p. 90 and (5) Ogunsanya V. State (2010) 14 NWLR (Pt. 1213) p. 349 at p. 362. PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.
FAIR HEARING: THE PROVISIONS OF THE LAW AS REGARDS FAIR HEARING
Section 36 (4) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides that a person charged with a criminal offence, unless the charge is withdrawn, is entitled to a fair hearing in public within a reasonable time by a Court or Tribunal and by virtue of Section 36 (6) of the same Constitution he, the accused, is entitled to adequate time and facility for the preparation of his defence and to defend himself in person or by a legal practitioner of his own choice.PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.
FAIR HEARING : THE RULE OF FAIRNESS MUST CONSIDER BOTH SIDES
It is a rule of fairness and a Court or Tribunal cannot be fair unless it considers both sides of the case as presented by both of them
Thus, the very essence of fair hearing under Section 36 of the 1999 Constitution (Supra) is a hearing which is fair to both parties, that is, the prosecution and defence. The Section does not contemplate a standard of justice which is biased in favour of one party and to the prejudice of the other party. Indeed, patience and gravity of hearing is an essential part of justice. See the cases of: (1) Adamu V. Sadi (1997) 5 NWLR (Pt. 504) p. 205; (2) Ndu V. State (1990) 7 NWLR (Pt. 164) p. 550; (3) Amadi v. Thomas Aplin & Co. (1972) 4 SC p. 228; (4) Offor V. State (1999) 12 NWLR (Pt. 632) p. 608; (5) Isamade V. Okei (1998) 2 NWLR (Pt. 538) p. 455; (6) Onuoha V. State (1989) 2 NWLR (Pt. 101) p. 23; (7) Akinfe V. State (1988) 3 NWLR (Pt. 85) p. 729 and (8) F.R.N. V. Akabueze (2010) 17 NWLR (Pt. 1223) p. 525. PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.
FAIR HEARING: EFFECT OF BREACH
Undoubtedly, the right to fair hearing is at the root of a just and fair administration of criminal justice. The absence of fair hearing always amounts to grave injustice in a matter in which the liberty of the citizen is very much in issue. Thus, its breach in any trial nullifies same. See the cases of: (1) Kim V. State (1992) 4 NWLR (Pt. 233) p. 17; (2) Onagoruwa V. State (1992) 2 NWLR (Pt. 221) p. 33; (3) Mohammed V. Kano N. A (1968) 1 All NLR p. 424; (4) A. G. Rivers State V. Ude (2006) 17 NWLR (Pt. 1008) p. 435 and (5) FRN V. Akabueze (Supra) at p. 544. PER OYEBISI FOLAYEMI OMOLEYE, J.C.A.
JUSTICES
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
RIDWAN MAIWADA ABDULLAHI Justice of The Court of Appeal of Nigeria
Between
ALABA AJEWOLE Appellant(s)
AND
THE STATE Respondent(s)
OYEBISI FOLAYEMI OMOLEYE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Justice, Osun State, sitting at Ikirun per I. O. Adeleke, J. (hereinafter referred to as ?the trial Court?) delivered on the 27th day of June, 2013 in Suit No. HIK/1C/2007.
The Appellant was one of five accused persons arraigned before the High Court of Osun State at Ikirun for the offences of Conspiracy to commit Armed Robbery and Armed Robbery contrary to Section 6 (B) and 1 (2) (a) and (b) respectively of the Robbery and Firearms Act, Cap R-11, Laws of the Federation of Nigeria, 2004. The charges were read over and explained to the Appellant and other accused persons. They pleaded not guilty to the two count charge.
The prosecution called six witnesses including the Investigating Police Officer and tendered the statements of the Appellant and the other accused persons. The Appellant and the other accused persons gave evidence in defence but called no witnesses.
?The case of the prosecution is that on 13th March, 2006, a gang of armed robbers who were armed with dangerous weapons
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including guns and cutlasses invaded and robbed a new site at Obagun via Ikirun. The robbers fired shots at and wounded some vigilante men. The Appellant was arrested and he named the other members of the gang which led to their arrest.
None of the prosecution witnesses was able to identify the Appellant or any of the other accused persons as the perpetrator(s) of the crime on the day of the incident. The learned trial Judge however, based essentially on purported confessional statements convicted the Appellant and other accused persons as charged.
The Appellant dissatisfied with the decision of the trial Court filed this appeal against it to this Court vide his Notice of Appeal, containing four grounds appeal, dated and filed on 11th of July, 2013. For clear understanding and easy referencing, the Appellant?s four grounds of appeal are hereunder reproduced unedited as follows:
GROUND ONE: ERROR OF LAW
1. The Learned trial Judge erred in Law when he relied on the evidence of prosecution witnesses to convict the accused persons.
PARTICULARS
(i) All the purported eye witnesses called by the prosecution i.e. PW1, PW2,
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PW3, PW4, and PW5 both in their statements to the Police as contained in the proof of evidence, their evidence in chief and under cross-examination said they could not identify any of those who participated in the alleged armed robbery if seen.
(ii) The prosecution witnesses infact maintained in the witness box that they could not identify any of the accused persons as part of the robbery gang.
(iii) The Learned trial judge however in his judgement while reviewing both the evidence in chief and under cross-examination of PW1 said:
?He stated further that he did not known any of the accused persons in the dock but that the robbers did not cover their faces. Under cross-examination by learned Counsel for the 1st, 3rd and 5th Accused, he said that he did not know any of the accused in the dock and identify them as being responsible for robbery attack at his house. He maintained that the said Armed Robbers did not cover their faces.”
(Underlining ours for emphasis).
(iv) The underlined portion of the above quoted trial Judge’s judgement did not form part of the evidence given by PW1.
(v) The Judgement was therefore
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perverse as the trial Judge deliberately imported what is not on record into his judgement so as to convict the accused persons at all cost.
GROUND TWO: ERROR OF LAW
2. The Learned trial Judge erred In Law when, despite Counsel’s and Accused’s Objection to the admissibility of Exhibits A, B, C, D, and E, (i.e. 1st ? 5th Accused Statements respectively) on the ground that the said statements were obtained under duress, he failed to conduct trial-within-trial before admitting the said statements in evidence as required by Law.
PARTICULARS
(i) When the Prosecuting State Counsel sought to tender the statements of each of the accused persons in evidence, he trial Judge hurriedly admitted them without allowing the accused persons (the alleged Makers of the Statements) or their Counsel to see the Statement.
Even, when the Counsel raised objection, the trial Judge deliberately and perversely failed or refused to record the objection during trial.
?(ii) However, since the truth and facts of the objection raised by Counsel was in the mind and sub-conscience of the learned trial Judge, he himself admitted in his judgment that
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the defence counsel raised objection to the admissibility of the accused statements on ground that they were obtained by duress when he held as follows:
?The defence also objected to the tendering of the confessional statements made by the accused persons mainly on the basis that it was obtained by Force. They were not contesting the contents of the statements. This objection was overruled and the confessional statements were admitted as Exhibits A-E.”
(iii) There was no trace of trial-within-trial in the Record of Proceedings despite the above quoted portion of the trial Judge?s judgment.
(iv) The trial Judge made up his mind from the word ?go? to convict the accused persons at all cost.
(v) The trial Judge convicted the accused persons relying on their purported confessional statements.
GROUND THREE: ERROR OF LAW
3. The trial Judge erred in Law when he failed to give the accused persons fair hearing.
PARTICULARS
(i) The admission of the purported confessional statements of the accused persons in evidence as Exhibits A-E without conducting trial-within-trial has denied the accused
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persons fair trial.
(ii) The Statements were hurriedly admitted without more by the trial Judge.
(iii) The trial Judge would have rejected the statements if a trial-within-trial had been conducted.
(iv) The trial Judge erroneously based his conviction of the accused persons on their purported confessional statements.
GROUND FOUR
4. The Learned trial Judge was perversed in the conduct of the entire trial of the accused persons.
PARTICULARS
(i) The trial Judge deliberately doctored the record of proceedings during trial when he refused or failed to record the objection raised by both the accused persons and their Counsel to the admissibility of Exhibits A-E (i.e the purported confessional statements of the accused persons respectively) on the ground that the said Statements were obtained by Force.
(ii) The trial Judge deliberately did not write the objection in order to paint a picture that no objection was raised by Counsel.
?(iii) But as fate would have it and due to the existence of its truth in the trial Judge?s subconscious mind, the trial Judge in his judgment admitted the fact that Counsel raised
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objection to the admissibility of Exhibits A-E on ground that they were obtained by duress. He however held that, the objections were simply overruled and the confessional statements admitted as Exhibits A-E.
In tune with the rules of practice of this Court, the parties in the appeal duly filed and exchanged briefs of argument in substantiation of their opposing stances. The Appellant?s Brief of Argument was settled by Mr. Tunde Adeoye of the law firm of Babatunde Adeoye & Co. The brief, dated and filed on 24th of February, 2017 was deemed properly filed on 16th of April, 2019. In the brief, the three issues identified for determination state unedited as follows:
(i) Whether on the facts of this case and evidence before the Court the trial Court was not in error by convicting the Appellant who was not identified by the victims of crimes committed and who did not in their evidence link the Appellant with the commission of any of the crimes?
(ii) Whether the confessional statement allegedly made by the Appellant satisfied the requirement of law for admissibility as to allow the trial Court convict the Appellant on same?
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(iii) Whether the entire trial against the Appellant is not a nullity, the trial having been conducted against the Appellant in clear breach of fundamental right to fair hearing?
On the other part, the Brief of Argument of the Respondent was settled by Mr. Dapo Adeniji, Director of Public Prosecutions, Ministry of Justice, Osun State. The brief was filed on 29th of March, 2018 but also deemed properly filed on 16th of April, 2019. In the brief, the two issues donated for the resolution of the appeal are hereunder set out unedited as follows:
1. On the fact of this case, and evidence before the Court, the trial Court was not in error by convicting the Appellant who was not identified by the victims of crimes and did not link the appellant with the crime of robbery.
2. Whether the confessional statement made by the appellant satisfy the requirement of the law for the admissibility as to allow the trial Court to convict the appellant on the same and whether the entire trial against the appellant was not a nullity the trial having been conducted against the Appellant in clear breach of fundamental right to fair hearing?
?At the oral hearing of
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the appeal on 16th of April, 2019. The learned counsel for the Appellant, Mr. Tunde Adeoye identified, adopted and relied on the brief of argument of the Appellant in urging upon this Court to allow the appeal, set aside the decision of the trial Court and discharge and acquit the Appellant. Counsel further referred to an earlier decision of this Court in Appeal No. CA/AK/132CC/2013 between Ayodeji Sunday and The State delivered on the 27th day of May, 2016. The Appellant in that appeal was a co-accused of the present Appellant at the trial Court. Counsel thence urged upon this Court to make an order of retrial in the instant appeal as it did in the said earlier appeal.
For the Respondent, Mr. Adedapo Adeniji, Solicitor General and Permanent Secretary, Ministry of Justice, Osun State equally identified, adopted and relied on the Respondent?s brief of argument in advocating for the dismissal of the appeal and affirmation of the judgment of the trial Court being appealed against by the Appellant.
?
It is crystal clear from their contents that the Appellant?s issues two and three, responded to under the Respondent?s issue two, raise the
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very fundamental question of fair hearing. It is therefore important to start the consideration of this appeal with the said issues two and three. It is also pertinent to state that the outcome of the resolution of the two issues will ultimately be the determinant factor of the appeal in the main.
ISSUE II AND III
Whether the alleged confessional statement of the Appellant satisfied the requirement of law for admissibility as to allow the trial Court convict the Appellant on same?
Whether the entire trial of the Appellant is not a nullity, the trial having been conducted in clear breach of his fundamental right to fair hearing?
SUBMISSIONS OF APPELLANT?S COUNSEL
The crux of the contention of the Appellant?s counsel under this head is that the learned trial Judge was in grave error to base the conviction of the Appellant on his alleged confessional statement Exhibit C, the only evidence available to the prosecution at the trial of the Appellant. According to him, the said evidence, the so-called confessional statement of the Appellant was not properly admitted in evidence before the trial Court solely relied on
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it to convict the Appellant. The said alleged statement of the Appellant was admitted as Exhibit C at page 113 of the Record of Appeal.
He submitted that the alleged statement of the Appellant was wrongly admitted in evidence by the trial Judge and this has occasioned a miscarriage of justice as the Appellant was denied fair hearing in that regard. For despite the objection raised by the Appellant?s counsel to the admissibility of the statement, the trial Judge failed to conduct a trial-within-trial, to confirm the voluntariness or otherwise of the statement before admitting it in evidence. Counsel referred on the procedure to the cases of: (1) The State v. James Gwangwan (2015) All FWLR (Pt. 801) p. 1470 at pgs. 1480 ? 1481; (2) Michael Taiye v. The State (2015) All FWLR (Pt. 805) p. 42 and (3) Okunade Kolawole v. The State (2015) All FWLR (Pt. 778) p. 864. He further submitted that where a confessional statement is challenged on ground of involuntariness or that it was obtained by force, a trial-within-trial must be held and ruled upon by the trial Court. He opined that, there was nothing upon which the counts of both conspiracy and armed
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robbery with which the Appellant was charged could stand, the alleged statement of the Appellant Exhibit C having become voided. On this position, he relied on the case of: Macfoy v. UAC Ltd. (1962) AC p. 152.
Furthermore, Appellant?s counsel referred to the provisions of Section 36(1) and (5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) to demonstrate that, an accused person like the Appellant herein is entitled to fair hearing. That is, there must be strict adherence to due process of law and procedure throughout his trial. Counsel submitted that the refusal of the trial Judge to test the voluntariness of Exhibit C the alleged confessional statement of the Appellant and allow the Appellant to examine Exhibit C and record the objection raised by the Appellant?s counsel to its admissibility before it was admitted in evidence against the Appellant?s interest are tantamount to a denial of fair trial which occasioned a miscarriage of justice to the Appellant.
SUBMISSIONS OF RESPONDENT?S COUNSEL
?Learned Counsel for the Respondent submitted in response to the Appellant?s issues two and
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three that a trial-within-trial is necessary only where a confessional statement is effectively challenged and not where all the opportunities offered for such were not utilized by an accused person in the place of the Appellant.
He submitted that a confessional statement having been admitted in evidence and marked as an exhibit could no longer be made the subject of any trial-within-trial. On this, Counsel referred to the cases of Nwachukwu V. State (2004) All FWLR (Pt. 206) p. 525 and (2) Ogudo V. State (2011) 48 NSCC p. 377 at p. 430.
The appropriate question that must be posed and resolved in this matter according to Counsel is: when is the appropriate time to raise involuntariness of a confessional statement? His answer is that, the appropriate point to raise the involuntariness of a confessional statement is when it is about to be tendered in evidence, especially as in this case, the accused person is represented by Counsel and it is assumed the latter ought to know what to do at every stage of the proceedings. He argued that parties and their Counsel as well as the Courts are bound by the record of the Court. He referred to page 113 of the
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record of proceedings where it is recorded that no objection was raised as to involuntariness of the Appellant’s confessional statement at the point it was sought to be tendered in evidence by the prosecution. He referred on this position to the cases of: (1) Okaroh V. The State (1988) 3 NWLR (Pt. 81) p. 214 and (2) Alarape V. State (2001) FWLR (Pt. 41) p. 1872. He contended that the confessional statement of the Appellant was tendered in evidence without an objection from the defence. That it was not until the prosecution had closed its case and the Appellant was testifying in defence that the issue of the voluntariness or otherwise of the statement was belatedly raised.
He submitted that the learned trial Judge was right to have dismissed this aspect of the case of the defence as an afterthought, having regard to the qualitative evidence tendered by the prosecution and accepted by the trial Court on the subject.
RESOLUTION
There are three sets of excerpts from the record of appeal that are particularly relevant in the determination of this heading of the appeal. The first is an excerpt from page 113 of the record, that is, at the point the
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Appellant?s confessional statement was admitted. The second is at pages 122 to 123 of the record which is a portion of the Appellant’s sworn evidence at trial while defending the charge against him. The third is at page 135 of the record which is part of the findings of the trial Court in its judgment being appealed against. The three sets of excerpts are hereunder set out respectively as follows:
Page 113 lines 33 – 34
The Statement made by the 3rd accused Alaba Ajewole was tendered and admitted as Exhibit C …?
Page 122 lines 35 ? 36 and page 123 lines 1- 2
“… I volunteered a statement. Police recorded it for me and I wrote my name below it. What I dictated was different from what was recorded. I was handcuffed when they were obtain (sic) answer (sic) to the questions put to me by the police (sic). I did not participate in armed robbery…?
Page 135 paragraphs 2 and 3
?”The defence also objected to the tendering of the confessional
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statements by the Accused Persons mainly on the basis that it was obtained by force. They were not contesting the contents of the statements.
Confessional statements were admitted as Exhibits ‘A- E?. …?
I have compared the contents of Exhibits A – E- and the replied (sic) of the 1st to 4th Accused persons to questions put to them under cross examination by the prosecuting Counsel (Mrs. Fola. Akinrujomu) and it is my observation that most of the information in their confessional statements about all the Accused persons tally with their evidence-in-chief. The differences are just their denial to committing the offence of conspiracy and Armed robbery, their places of arrest and knowing one another at Police station. The question to ask; Did I.P.O (PW6) manufactured (sic) these facts? Or how would I.P.O know all the information included in Exhibits A – E, if such information had not been supplied by all the Accused. I believed (sic) they made their confessional statement voluntarily
It can clearly be
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deduced from the above set out portions of the proceedings of the trial Court that the learned trial Judge did not record any suggestion that the alleged confessional statement of the Appellant was shown by the prosecution either to the Appellant or his Counsel at the point of tendering same in evidence. Hence, it is unclear whether the Appellant through his Counsel was afforded the opportunity to object to the admissibility of the alleged confessional statement, as the learned trial Judge did not record any such reactions. However, it became obvious in the judgment of the trial Court that indeed the learned Counsel for the Appellant objected to the admissibility of the Appellant?s alleged confessional statement on the ground that it was not made voluntarily. ?
Furthermore, the learned trial Judge in his judgment stated that he found the alleged confessional statement of the Appellant credible sequel to the evidence elicited from two of his co-accused during their cross-examination. This is notwithstanding the fact that the learned trial Judge did not record any cross-examination of the Appellant. What is more, the Appellant in his
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examination-in-chief clearly denied making the said alleged confessional statement voluntarily and there is no record that he adopted the so-called evidence of the two co-accused regarding the commission of the alleged crime as required by law.
Still on the findings of the learned trial Judge, he referred to a ruling or order in which he overruled the objection of the Appellant to the admissibility of the alleged confessional statement of the Appellant thereby admitting same as Exhibit C. Again, there is no recording of either the objection or ruling/order anywhere in the printed record of the proceedings of the trial Court. Most importantly, although the learned trial Judge clearly stated in his judgment that the defence, that is, Appellant?s counsel, objected to the admissibility of the alleged confessional statement of the Appellant on the ground that it was not voluntarily obtained, a trial-within-trial was not ordered or conducted and ruled upon as required by law before it was admitted in evidence by the learned trial Judge. ?
Consequent upon the foregoing, the fact that the Appellant was recorded by the trial Court to have accepted
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volunteering Exhibit C does not in my view cure the fundamental defects in this case. In a nut-shell, the defects are (i) the failure of the learned trial Judge to allow the Appellant and/or his Counsel to view the Appellant’s statement at the point of tendering it, (ii) the failure of the learned trial Judge to record the objection to the admissibility of the confessional statement raised by the Appellant’s Counsel and (iii) the failure of the learned trial Judge in the circumstances to order a trial-within-trial prior to the admissibility of the confessional statement as well as his failure to rule on it. From the above lapses in the trial, there is no question in my mind that the Appellant was denied his right to a fair hearing. Fair hearing and fair trial are synonymous concepts. The test of determining whether there was a fair hearing in criminal cases is always the impression of reasonable people present in the open Court and listening to the proceedings. See the cases of: (1) Mohammed V. Kano N. A. (1968) 1 All NLR p. 424; (2) Gaji V. State (1975) 1 All NLR p. 266; (3) Effiom V. State (1995) 1 NWLR (Pt. 373) p. 207; (4) Uguru V State (2002)
19
9 NWLR (Pt. 771) p. 90 and (5) Ogunsanya V. State (2010) 14 NWLR (Pt. 1213) p. 349 at p. 362.
Section 36 (4) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) provides that a person charged with a criminal offence, unless the charge is withdrawn, is entitled to a fair hearing in public within a reasonable time by a Court or Tribunal and by virtue of Section 36 (6) of the same Constitution he, the accused, is entitled to adequate time and facility for the preparation of his defence and to defend himself in person or by a legal practitioner of his own choice. Hearing could not be said to be fair when, at the point of tendering an accused’s confessional statement, the statement was neither shown to the Appellant nor his Counsel, especially if the Counsel was either not granted the opportunity to ventilate his views on the admissibility of the statement or for the Court to adequately record the objection of Counsel. ?Fair hearing incorporates a trial done in accordance with the rules of natural justice and must include giving a party or a legal practitioner of his choice the opportunity to present his case before an
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impartial Court and free from fear or intimidation. Furthermore, the rule of audi alteram partem postulates that the Court or other Tribunal must hear both sides at every material stage of the proceedings before handing down a decision at that stage. It is a rule of fairness and a Court or Tribunal cannot be fair unless it considers both sides of the case as presented by both of them.
Thus, the very essence of fair hearing under Section 36 of the 1999 Constitution (Supra) is a hearing which is fair to both parties, that is, the prosecution and defence. The Section does not contemplate a standard of justice which is biased in favour of one party and to the prejudice of the other party. Indeed, patience and gravity of hearing is an essential part of justice. See the cases of: (1) Adamu V. Sadi (1997) 5 NWLR (Pt. 504) p. 205; (2) Ndu V. State (1990) 7 NWLR (Pt. 164) p. 550; (3) Amadi v. Thomas Aplin & Co. (1972) 4 SC p. 228; (4) Offor V. State (1999) 12 NWLR (Pt. 632) p. 608; (5) Isamade V. Okei (1998) 2 NWLR (Pt. 538) p. 455; (6) Onuoha V. State (1989) 2 NWLR (Pt. 101) p. 23; (7) Akinfe V. State (1988) 3 NWLR (Pt. 85) p. 729 and (8)
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F.R.N. V. Akabueze (2010) 17 NWLR (Pt. 1223) p. 525.
Clearly and in all the given circumstances of this case, the Appellant was denied fair hearing at the stage of tendering his confessional statement and also for the failure of the learned trial Judge to have decreed the procedure of a trial-within-trial when the defence raised an objection to the admissibility of the Appellant?s confessional statement on the ground that it was not voluntarily made.
Undoubtedly, the right to fair hearing is at the root of a just and fair administration of criminal justice. The absence of fair hearing always amounts to grave injustice in a matter in which the liberty of the citizen is very much in issue. Thus, its breach in any trial nullifies same. See the cases of: (1) Kim V. State (1992) 4 NWLR (Pt. 233) p. 17; (2) Onagoruwa V. State (1992) 2 NWLR (Pt. 221) p. 33; (3) Mohammed V. Kano N. A (1968) 1 All NLR p. 424; (4) A. G. Rivers State V. Ude (2006) 17 NWLR (Pt. 1008) p. 435 and (5) FRN V. Akabueze (Supra) at p. 544.
In the instant case, there have been fundamental irregularities in procedure employed by the trial Court of such character that I am able to say
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without equivocation that there has been a miscarriage of justice.
Sequel to the above stated reasons, issues two and three are accordingly resolved in favour of the Appellant and against the Respondent.
Having resolved those two all important issues in favour of the Appellant, I do not find it necessary any longer to consider the remaining issue one in this appeal, as to do that will amount to an academic exercise which the Courts do not engage in. For an academic exercise will not serve any useful purpose in such a situation as the instant matter, having regard to the consequential order that will necessarily be made at this juncture.
Based on issues two and three this appeal is meritorious and it is hereby allowed.
In the circumstances, the trial, conviction and sentence of the Appellant on 27th of June, 2013 by I. O. Adeleke J., in Suit No. HIK/1C/2007 are hereby set aside and quashed respectively.?
However, as the trial of the Appellant was only vitiated by unfairness, I consider it proper, for that is what the law behoves me, to make an order of a re-trial in the overall interest of justice to the victims of the alleged crime and
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indeed the society at large. See the cases of: (1) Okafor V. State (1976) 5 SC p. 13 and (2) FRN V. Akabueze (supra) at pgs. 540-541. What is more, the learned counsel for the Appellant consented to an order of retrial as rightly applied for by him at the oral hearing of the appeal on the 16th of April, 2019.
Consequently, Suit No. HIK/1C/2007 is accordingly remitted to the Hon. Chief Judge of Osun State for expeditious trial ?de novo? before another Judge of the High Court of Osun State other than Hon. Justice I. O. Adeleke.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: I concur that the conviction and sentence of the Appellant in this appeal be set aside quashed and the judgment set aside for the breach of the right of fair hearing as there was no compliance with the law as relating to the admission of a cautionary statement that was objected to as involuntary or obtained by force or duress.
The consequential order for a retrial as made by my learned brother Oyebisi F. Omoyele, JCA, (PJ) in the lead judgment which I concur in is apt and meets the justice of the case.
?The Suit No. HIK/1C/2007 is accordingly
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re-opened and shall be heard de novo and expeditiously by another judge of the High Court of Osun State other than justice I. O. Adeleke, as ordered in the lead judgment.
RIDWAN MAIWADA ABDULLAHI, J.C.A.: My learned brother, OYEBISI FOLAYEMI OMOLEYE, PJCA served on me the lead judgment delivered which I holistically went through and found the reasoning and conclusion agreeable to me with nothing to add thereto.
The determination of ISSUES TWO and THREE of the Appellant and their resolutions in favour of the Appellant against the Respondent resulted in the appeal being meritorious and should be allowed. Appeal allowed, the trial, conviction and sentence of the Appellant by the trial Court hereby set aside as done in the lead judgment.
In the overall interest of justice, the need to make an order of retrial of the matter. Therefore, Suit No. HIK/1C/2007 is accordingly remitted to the Hon. Chief Judge of Osun State for retrial expeditiously and to be assigned to another Judge other than Hon, Justice I. O. Adeleke.
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Appearances:
Tunde AdeoyeFor Appellant(s)
Adedapo Adeniji (Solicitor General & Permanent Secretary, Ministry of Justice, Osun State) with him, K.A. Tijani (Assistant Director of Public Prosecutions)For Respondent(s)
Appearances
Tunde AdeoyeFor Appellant
AND
Adedapo Adeniji (Solicitor General & Permanent Secretary, Ministry of Justice, Osun State) with him, K.A. Tijani (Assistant Director of Public Prosecutions)For Respondent
