ABIODUN YINUSA v. THE STATE (2016)

ABIODUN YINUSA v. THE STATE

(2016)LCN/8332(CA)

In The Court of Appeal of Nigeria

On Monday, the 21st day of March, 2016

CA/I/60C/2011

RATIO

PRACTICE AND PROCEDURE: TRIAL WITHIN TRIAL; SITUATION WHERE A TRIAL WITHIN TRIAL IS CONDUCTED

A trial within trial is conducted when there is a challenge to the admissibility of a statement made to the police by an accused person on the ground that the statement was not made voluntarily, that is to say, that the statement was actually the product of oppression (torture, inhuman or degrading treatment and the use of threat of violence whether or not amounting to torture) or the consequence of anything said or Cone which was likely in the circumstances existing at the time, to render the confession unreliable. See the provisions of Section 29 of the Evidence Act 2011. Where the trial Court finds that the statement sought to be tendered as a confessional statement is not one made voluntarily, it will, after the trial within trial, reject it. On the other hand, if after the said trial within trial the trial Court finds that the allegation of oppression etc. by the accused was not made out, it will Rule that the confessional statement made by the accused person is admissible and will admit it in evidence. An accused person sometimes makes more than one statement to the police. He can own up to all of them or resile from them all, or own up to some and resile from some. lt is those that he resiles from that will form the need for a trial within trial. At the time of the tendering of the statement or statements is the time when the accused person can raise an objection to the admissibility of the statement or Statements. Each of the statements made must undergo its own probationary test or scrutiny to determine its admissibility under the trial within trial procedure. See Moses Jua v State (2007) LPELR – 8759 (CA). per. OBIETONBARA O. DANIEL-KALIO, J.C.A.

COURT: FUNTUS OFFICIO; WHEN DOES A COURT BECOME FUNTUS OFFICIO AND THE MEANING OF FUNTUS OFFICIO

After that first Ruling, the Court had become functus officio with regard to the order on the admissibility of the said statement. As stated by the Supreme Court in the case of Alor v. Ngene (2007) 17. NWLR Part 1062 at P.163. “A final order envisages that it is a permanent order made by the Court and the parties in respect of whom or against whom the order is made cannot go back to the same Court to challenge or change that order. That Court by virtue of the order is functus officio and the only option open to the parties is by way of appeal against the order. This means that the rights of the parties have been determined to finality, and they cannot go back to the same Court on those rights.” In John Andy Sons & Co Ltd v NCR (1997) 3 NWLR part 491 at p.1, the Supreme Court put it this way; ”Once an issue or issues have been raised and determined by the Court between litigating parties the Court become functus officio.” Functus officio here means that the lower Court had discharged its duties as far as the admissibility of the Appellant’s statement to the police at the Sanyo Police Station was concerned, on 4/12/2006 and therefore no longer had any authority over that issue. I think the maxim acturn re agas – do not do again what has already been done – applies here also. Sub-issue 1 of issue 1 is resolved in the Appellants favour. per. OBIETONBARA O. DANIEL-KALIO, J.C.A.

COURT; WHAT IS A PERVERSE FINDING

It has been held that a perverse finding is a finding of fact which inter-alia is merely speculative. See lwacha v NIPOST Ltd (2003) 8 NWLR Part 822 P.308 per. OBIETONBARA O. DANIEL-KALIO, J.C.A.

JUSTICES

HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria

OBIETONBARA O. DANIEL-KALIO Justice of The Court of Appeal of Nigeria

NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria

Between

ABIODUN YINUSA – Appellant(s)

AND

THE STATE – Respondent(s)

OBIETONBARA O. DANIEL-KALIO, J.C.A. (Delivering the Leading Judgment): This is an appeal in a Criminal matter. The Appellant Abiodun Yinusa along with one Wasiu Yinusa, was charged with conspiracy to commit Armed Robbery contrary to Section 5 (b) and punishable under Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act Cap. 398 Laws of the Federation of Nigeria, 1990, and armed robbery contrary to and punishable under Section 1 (2) of the Robbery and Firearms (Special Provisions) Act, Laws of the Federation of Nigeria, 1990.

?The particulars of offence in the charge show that the Appellant along with the said Wasiu Yinusa conspired together to rob one Titus Okoye and indeed robbed the said Titus Okoye of the Sum of N230,000 (Two Hundred and Thirty Thousand Naira), precious stones worth N16,000 (Sixteen Thousand Naira) and other valuables while armed with a gun and a cutlass. According to the said particulars of offence, the crime took place on or about the 7th day of July 2004 along Aba Ayegun via Olode Village, Ibadan in the Ibadan Judicial Division of the High Court of Oyo State.

The Appellant pleaded not guilty to the charge. After

trial which included two trials within trial, the learned trial judge on 4/1/2011 delivered his judgment. He found the Appellant guilty on both counts in the charge and sentenced him to death.

Dissatisfied and disconcerted, the Appellant quickly filed a Notice of Appeal on 21/1/11. He amended the Notice of Appeal by filing an Amended Notice of Appeal on 1/3/13. The said Amended Notice of Appeal was deemed properly filed and served on 25/11/14 by an order of this Court made on that date. In the Amended Notice of Appeal the Appellant marshaled 11 grounds on which he felt dissatisfied with the judgment of the lower Court.

Both parties filed and exchanged Briefs of Argument. The relevant Appellant?s Brief of Argument is the one dated and filed on 30/12/14. It was by an order of this Court, deemed properly filed and served on 11/11/15. The Respondents Brief of Argument was promptly filed on 11/11/15. A Reply Brief by the appellant was filed on 16/11/15.

Appellant’s Learned Counsel Musibau Adetunbi Esq. settled the Appellant’s Brief of Argument and also argued the appeal on the Appellant?s behalf on 20/1/16. The Respondent’s Brief was

settled by the learned Director of Public Prosecutions (DPP) of the Oyo State Ministry of Justice, T.M. Abdulganiyu Esq. He also argued the appeal on the Respondent’s behalf.

The Appellant distilled three issues for determination in this appeal. Tie issues as shown in the Appellant’s Brief of Argument are the following:

1. Taking into consideration the entire circumstances of this case, more particularly the issue of admissibility or otherwise of Exhibit 1, was it proper for the honourable Court below to have conducted trial within trial twice taking into consideration his lordship’s finding of fact that the accused persons were tortured at the particular Police Station where the second confessional statement sought to be tendered was taken? (This issue was distilled from grounds 2, 9 and 11 of the grounds of appeal).

2. With or without Exhibits 1 and 2, could it be reasonably held that the totality of evidence led by the prosecution established the entire ingredients that must be proved in a case of armed robbery such that the two accused persons may be convicted for armed robbery on the ground that the prosecution proved its case beyond

reasonable doubt? (This issue was distilled from grounds 3,4,7,8,9 and 10 the grounds of appeal); and

3. Taking into consideration the peculiar circumstances of this case, was it proper for the learned trial judge to have come to the conclusion that the release of certain exhibits to the complainant on bond to produce and its eventual disposal by the complainant were normal and justifiable in equity and law (This issue was distilled from grounds 5 and 6 of the grounds of appeal)

The Respondent in its Brief of Argument also identified three issues for determination. The issues are:-

1. Whether the release of certain exhibits on bond and eventual sale by PW3 was right;

2. Whether the lower Court was right to have conducted trial within trial twice in the circumstances of this case and whether Exhibit 1 was rightly admitted and relied upon by the lower Court; and

3. Whether or not the prosecution proved the offence of conspiracy to commit armed robbery and armed robbery against the Appellant beyond reasonable doubt.

A close look at the issues formulated above, reveals that the issues are actually the same. The only real difference

in them is the order in which they are formulated and the language of choice. The Appellant tended towards verbosity while the Respondent was more taciturn. I must also note that the Appellant in formulating his issues particularity issues 1 and 2 referred to accused persons as though the appeal here is an appeal by the accused persons and not necessarily the Appellant only. We are here concerned with the appeal of the Appellant Abiodun Yinusa. All said, I prefer the issues as formulated by the Respondent as I find them more direct to the point or shall I say, more directly related to the issues for determination.

I will begin with the Respondent?s issue 2 which is essentially the same as the Appellant’s issue 1. The issue as will be recalled, is whether the lower Court was right to have conducted trial within trial twice in the circumstances of this case and whether Exhibit 1 was rightly admitted and relied upon by the lower Court. In arguing this issue, Appellant’s Learned Counsel sub-divided his argument into two parts, the first focusing on the conduct of trial within trial twice by the lower Court and the second concentrating on the question of

the admissibility or otherwise of Exhibit 1.

On the issue of the conducting of a trial written trial twice by the lower Court, Musibau Adetunbi Esq. for the Appellant, referred us to the first trial within trial which commenced on 4/12/2006. Learned counsel submitted that the Ruling of the lower Court after that trial within trial was that the statement credited to the Appellant and his co-accused were not admissible in evidence as they were contrary to the provisions of Section 28 of the Evidence Act. It was submitted that the lower Court in that Ruling made a finding that the Appellant and his co-accuse were tortured.

It was submitted that when PW2 testified, another statement purportedly made by the Appellant was sought to be tendered and same was objected to on the ground that it was not made voluntarily. The objection, it was submitted, led the learned trial judge to order another trial within trial. It was then contended by learned counsel that since the learned trial judge had made a finding that the Appellant’s statements were contrary to the spirit of Section 28 of the Evidence Act, his Lordship of the Lower Court was precluded from

conducting another trial within trial for the propose of determining the admissibility or otherwise of the confessional statements.

Learned Counsel argued that the second trial within trial was uncalled for. Our attention was drawn to page 25- 26 of the Record of appeal for the first Ruling on the trial written trial, and to page 127 – 145 of the Record of Appeal for the Second Ruling on the trial within trial. Learned Counsel argued that the intention of the prosecution with regard to the Second Ruling was to get the Court to set aside its First Ruling. By so doing he urged, the prosecution was out to persecute and not to prosecute the Appellant, something that the law frowns at. We were referred to Omopupa v State (2008) FWLR part 448 p.1648 at 1684; Onagoruwa v State (1993) 7 NWLR Part 303 P.49 at P.107. It was submitted that what the learned trial judge did was to sit on appeal over his earlier Ruling, a thing he tacked jurisdiction to do. The case of Nigerian Army v. Iyela (2008) 18 NWLR Pt .1118 P.115 was cited in support. We were urged to set aside the Ruling of the learned trial judge in the second trial within trial and also reject the

confessional statement admitted pursuant to that Ruling.

In his response to this argument, T.M. Abdulganiyu: Esq. the learned DPP of the Oyo State Ministry of Justice argued that a particular trial within trial is different, distinct and distinguishable from another trial within trial. It was submitted that if different confessional statements are retracted on different occasions each of the retracted confessional statements in those circumstances will be separately considered via trial within trial. It was submitted that the lower Court adopted the correct procedure by subjecting the admissibility of the Appellant’s second statement made at Sanyo Police Station to another trial within trial instead of relying on the earlier trial within trial to determine its admissibility. Learned Counsel submitted that evidence adduced in a previous trial within trial to determine the admissibility of a statement cannot be used to determine the admissibility of another statement that is tendered later. We were referred to Jua v State (2008) All FWLR Para. 440 P. 781.

A trial within trial is conducted when there is a challenge to the admissibility of a statement

made to the police by an accused person on the ground that the statement was not made voluntarily, that is to say, that the statement was actually the product of oppression (torture, inhuman or degrading treatment and the use of threat of violence whether or not amounting to torture) or the consequence of anything said or Cone which was likely in the circumstances existing at the time, to render the confession unreliable. See the provisions of Section 29 of the Evidence Act 2011. Where the trial Court finds that the statement sought to be tendered as a confessional statement is not one made voluntarily, it will, after the trial within trial, reject it. On the other hand, if after the said trial within trial the trial Court finds that the allegation of oppression etc. by the accused was not made out, it will Rule that the confessional statement made by the accused person is admissible and will admit it in evidence. An accused person sometimes makes more than one statement to the police. He can own up to all of them or resile from them all, or own up to some and resile from some. lt is those that he resiles from that will form the need for a trial within

trial. At the time of the tendering of the statement or statements is the time when the accused person can raise an objection to the admissibility of the statement or Statements. Each of the statements made must undergo its own probationary test or scrutiny to determine its admissibility under the trial within trial procedure. See Moses Jua v State (2007) LPELR – 8759 (CA).

The question that we are asked to answer here is whether Exhibit 1 which was admitted in evidence in the second trial within trial was considered and formed the subject of the Ruling in the first trial within trial.

Now Exhibit 1 on the face of it, is a statement made by the appellant Abiodun Yinusa at the Sanyo Police Station. It was admitted in Evidence and marked as Exhibit 1- 2 in the Ruling of the learned trial judge delivered on 31/5/2007 pursuant to the second trial within trial. See at page 126- 144 of the Record of Appeal. The First Ruling after a trial within trial was delivered on 4/12/2006. In that Ruling the learned trial judge stated as follows:

?I have listened to the arguments of the parties on trial within trial. While PW1 for the prosecution submits

both accused statements were taken without threat, the 1st and 2nd accused persons showed otherwise. Both showed where they were shot for the Court to see. The State Counsel refused to tender the statement during the trial within trial for the Court to accept temporarily before the Court finally holds the admissibility or otherwise.

In view of the accused (sic) I hold that the statement credited to each of the accused is not admissible and against the spirit of Section 28 of the Evidence Act.?

Evidently from the above, the learned trial judge felt satisfied that the statement made by the Appellant who was shot in the leg and whose gunshot injury he saw was inadmissible in evidence. The question now is, which statement exactly was that that the learned trial judge found to be inadmissible? The learned trial Judge lamented that the statement was not produced before him. He lamented that the State Counsel refused to tender the statement during the trial within trial. However, it is not hard to know the statement that the learned trial judge was referring to in his Ruling. It was clearly the statement of the Appellant made at the Sanyo Police

Station because it was in that station that the Appellant claimed he was shot in the leg, a claim that the learned judge believed and which was the basis of his finding on the inadmissibility of the statement. At page 24 of the Record of Appeal, the Appellant as the 1st accused in the first trial within trial stated on follows “I was shot in the right leg at Sanyo”. Clearly therefore the statement found to be inadmissible in the first trial within trial is the Statement which was later admitted by the same judge in the second trial within trial as Exhibit 1.

After considering the surrounding facts in the first and second Rulings, I am inclined to the view that a “fast one” if I may be permitted to be a bit colloquial, was played on the learned trial judge. If the State Counsel had produced the statement made at the Sanyo Police Station before the Court at the first trial within trial, the lower Court without a doubt would have marked it as rejected. But the statement was hidden from the Court for reasons best known to the State Counsel. Perhaps capitalizing on the failure of the trial judge to mark the statement, it was produced before him at the second

trial within trial. Obviously oblivious of the position he had earlier taken on the matter, the learned trial judge admitted the statement and marked it as Exhibits 1 – 2 in his second Ruling. The attention of the learned trial judge was not drawn to his earlier Ruling on the statement. No doubt about it, the prosecuting State Counsel mislead the lower Court. As a minister in the temple of justice, he had a duty to assist the Court to do justice in the matter. He abdicated that responsibility and seemed to have followed the path of persecution instead of prosecution.

Having regard to the second Ruling it is clear to me in view of my analysis above, that the lower Court was incompetent to give that Ruling having made a final order rejecting the admissibility of the same statement in its first Ruling. After that first Ruling, the Court had become functus officio with regard to the order on the admissibility of the said statement. As stated by the Supreme Court in the case of Alor v. Ngene (2007) 17. NWLR Part 1062 at P.163.

“A final order envisages that it is a permanent order made by the Court and the parties in respect of whom or against whom the order is

made cannot go back to the same Court to challenge or change that order. That Court by virtue of the order is functus officio and the only option open to the parties is by way of appeal against the order. This means that the rights of the parties have been determined to finality, and they cannot go back to the same Court on those rights.”

In John Andy Sons & Co Ltd v NCR (1997) 3 NWLR part 491 at p.1, the Supreme Court put it this way;

”Once an issue or issues have been raised and determined by the Court between litigating parties the Court become functus officio.”

Functus officio here means that the lower Court had discharged its duties as far as the admissibility of the Appellant’s statement to the police at the Sanyo Police Station was concerned, on 4/12/2006 and therefore no longer had any authority over that issue. I think the maxim acturn re agas – do not do again what has already been done – applies here also. Sub-issue 1 of issue 1 is resolved in the Appellants favour.

Sub-issue 2 of issue 1 as will be recalled, has to do with the admissibility of Exhibit 1. appellant’s learned counsel submitted that the evidence of PW1 and the

Appellant at the first trial within trial established that Exhibit 1 was obtained under duress. Even the evidence of PW2 at the said trial within trial learned counsel submitted, leads to that same conclusion. The PW2 learned counsel contended, stated that ?he obtained’ the statement. ‘The word ‘obtained’ it was argued connotes a demand. Several authorities were referred to including State v Salawu (2011) NWLR Part 1279 P.580 at 604. It was submitted that Exhibit 1 was inadmissible and that same should be expunged from the record. I expunged as urged, it was submitted that there would be nothing that would support the judgment of the lower Court.

In his submission in Reply, the Respondent?s learned counsel contended that the learned trial judge in his Ruling in the first trial within trial made a mistake in interpreting the evidence of PW1 before him but that the mistake made by the trial judge did not occasion any miscarriage of justice. Learned counsel cited the case of Nwosu v Imo State Environmental Sanitation Authority (1990) 4 SC 72 in support of his contention that no miscarriage of justice was occasioned. On the evidence of PW2 that

he obtained the statement under caution, learned counsel submitted that the word ‘obtained’ used by PW2 should not be read out of con and that the use of the word could not have connoted the application of force or duress before the statement was made. Exhibit 1 learned counsel submitted, was rightly admitted in evidence. The lower Court he argued, was also right to have relied on it in convicting the Appellant.

I have earlier found, in considering the first segment of this issue that upon a careful reading of the first Ruling of the lower Court on the admissibility of a statement made to the police by the Appellant at the Sanyo Police Station the trial Court felt satisfied that the statement was not made voluntarily and therefore held it to be inadmissible. I also noted that the statement that was found to be inadmissible in that Ruling turned out to be the statement that was admitted as Exhibit 1 – 2 in the second Ruling in another trial within trial. Having come to those conclusions, the admissibility of Exhibit 1 was incapable of being decided again the Court having earlier decided it and thus becoming functus officio in respect thereof. The

arguments on Exhibit 1 therefore serve no useful purpose. To consider them will amount to dare pondus fume- to give weight to smoke. This sub-issue is also resolved in the Appellant’s favour.

I will now turn to the Respondent issue 3 which is the Appellant?s issue 2. That issue as will be recalled, is whether the prosecution proved the offences of conspiracy to commit armed robbery and armed robbery against the Appellant, beyond reasonable doubt.

Appellant’s Learned Counsel submitted that apart from the confessional statement of the Appellant, no other piece of credible evidence linked the Appellant to the robbery. Learned Counsel referred us to the evidence of PW2 at page 46 – 48 of the Record of Appeal which is on the evidence on the identity of the Appellant and submitted that the evidence did not portray PW2 as a witness of truth but as one desperate to “nail” the Appellant for the crime. Learned Counsel wondered why, it indeed PW3 lived in the same village as the Appellant as claimed by him he could not remember his name or lead the police to the appellant?s house at the earliest opportunity.

Appellant’s Learned Counsel

drew our attention to the PW3’s account of how the Appellant was arrested in the course of his evidence during the second trial within trial (page 2A ? 2B of the Record of appeal) and urged us to compare that evidence with the evidence he gave on 11/3/2008. The two pieces of evidence he submitted, lacked consistency. Learned Counsel also referred us to Exhibit 10, the statement made to the police on 14/7/2004 and submitted that it is self-contradictory. A look at another statement of PW3 (Exhibit 11) be submitted, indicates that there is nothing in it that shows that PW3 (the complainant) knew the Appellant, a position quite different from his stated position in his evidence on oath. Learned Counsel submitted that any fair minded person who reviews the evidence of the prosecution would come to the conclusion that the arrest of the Appellant was based on mere suspicion on account of the fact that he purchased a new motorcycle. It was submitted that the evidence of the three prosecution witnesses were unreliable particularly as they relate to the identity of the Appellant. Furthermore it was submitted, Exhibits 10 and 11 contradicted the evidence on oath

of PW3 substantially. Learned Counsel urged also that the evidence of PW1 and PW2 were hearsay and inadmissible. We were urged to expunge their evidence. Learned Counsel submitted that even if the confessional statement is not expunged, the statement will not be sufficient to secure the conviction of the Appellant as it was not corroborated by any credible and independent evidence. Learned Counsel submitted that the police failed to interrogate one Mukaila or call him to give evidence about how he came by his conclusion that the Appellant committed the crime other than by reason of his suspicion that he must have committed it because he purchased a new motorcycle. While agreeing that the prosecution is not under any duty to call every witness, learned counsel submitted that where the prosecution fails to call a vital witness, its case is bound to fail. The case of State v Nnolim (1994) 5 NWLR part 345 p. 394 was cited in support.

In his submission in reply, the Respondent’s learned counsel argued that there was sufficient evidence of conspiracy to commit armed robbery and armed robbery against the appellant to warrant his conviction for the offences

by the lower Court. The prosecution he submitted, proved its case beyond reasonable doubt adding that all the ingredients of the offence of armed robbery as set out in the case of Bozin v State (1985) 2 NWLR Part 8 P.465 469 were proved against the Appellant beyond reasonable doubt. Taking the ingredients of armed robbery one after me other, learned counsel on the ingredient that there must be a robbery or series of robberies, referred us to the evidence of PW3 at page 46 -48 of the Record of Appeal. The evidence he contended was corroborated by Exhibit 10 and the evidence of PW1, PW2 and PW3. On the ingredient that the robbery must be an armed robbery, we were referred again to the evidence of all three prosecution witnesses. We were also referred to Exhibits 1,2,8, 9, 10 and 11. On the ingredient that the accused must be one of those that took part in the armed robbery, we were once again referred to the evidence of ail the three prosecution witnesses. We were also referred to Exhibit: 2, 9 and 10. It was submitted that the confessional statement of the Appellant was direct, positive and unequivocal. We were urged to affirm the judgment of the lower

Court.

There is no doubt that the learned trial judge believed the evidence of PW3 on the identity of the Appellant. At page 105 of the Record of Appeal, the learned trial judge made the following findings.

“In the light of the evidence of PW3 and PW2 who did the investigation, I believe PW3 knew the accused persons as labourers at the mining site and he was able to identify their voice and saw their eyes at the scene of crime. Question of identity of the two accused persons were not in doubt as the act occurred at 4 p.m.?

At page 106 – 107 of the Record of Appeal, the learned trial judge also made the following findings:

”Complainant was able to see him facially and could recognize the voice of the accused persons. I hold that irrespective of where the complainant got further information, he was able to recognize the accused persons and their recognition was not in doubt to the extent that he was able to say that one is a bit taller than the other.”

From the above findings of the learned trial judge it is not clear to me whether the basis of the recognition of the Appellant as a participant in the robbery was based on facial

recognition, voice recognition or height recognition. The basis of the finding of the learned trial judge was not clear cut. It was rather speculative; in which case it is perverse. It has been held that a perverse finding is a finding of fact which inter-alia is merely speculative. See lwacha v NIPOST Ltd (2003) 8 NWLR Part 822 P.308

The complainant (PW3) made two statements to the police. They were admitted as Exhibits 10 and 11. I have closely studied the two statements and I find that they contradict each other and are conflicting. The following are what the two statements say as regarding the identity of the Appellant. Exhibit 10 states:

“On the 2nd of July 2004 at about 4 p.m I was going to my site at Olode Area. While on my way going, two boys whom I don?t know their names but known to me before came out from the bush.”

In Exhibit 11, he stated thus:

“On 7/7/2004 at about 4 p.m on my way back home from site along Olode Road very close to Olode Village when I entered into the bad road with my vehicle one Toyota Corolla car with registration No. Oyo AA 412 TNT red in colour, suddenly two boys came out of the bush with gun

and cutlass in their hands. The one with gun stopped me with the gun before the other boy came out of the bush with cutlass. They both covered their faces with white cloth. The taller one among them carried the gun and I can recognize and sighted the gun to be a shot dane gun. The other one with the cutlass searched my vehicle and carried the polythene bag?.?

It is clear from the two Exhibits that while in Exhibit 10 the complainant (PW3) said he knew the boys that robbed him but not their names and made no mention of any covering of the face, Exhibit 11 did not indicate anywhere that he knew the boys or that he saw their races. Coming to his evidence in Court, the complainant (PW3) gave a third account with regard to recognition of the robbers, which account is different from the one in Exhibit 10 and Exhibit 11. This is what he said on the identity of those who robbed him.

?I remember 7/7/2004. On the 7/7/04 at 4pm when I was going to the Mining site, I slowed down at the area where there are potholes. I put my car into gear one. One boy came from the bush. He covered his face. He removed what he used to cover his face again

but I saw his face. The person from the left covered his face.? (See page 46 of the Record of Appeal).

Here, we have an account that says one of the robbers covered his face and then removed the cover and then tried to cover his face again. The big question is: which of the three accounts is true? which one should be picked over the other? Surely the contradictions are not trivial contradictions. They are material contradictions. It is the law that where there are conflicting versions of material facts, the trial judge must make specific findings and must give reasons for rejecting one version and accepting another. See Onabogu & Anor v. The State (1974) 9 Pt 1 at page 20. The learned trial judge did not give any reason for preferring one version to another version. Indeed the finding by the learned trial judge on the identity of the appellant can be described as a cocktail of facts selected randomly from the evidence before him. The proper thing that the learned trial judge should have done was to have rejected all the versions as being unsafe for the purpose of determining the material issue which material issue in this case, is the identity

of the appellant. SeeBature v. The State (1991) 5 NWLR Part 194 P.697 at 706. PW3 having thoroughly contradicted himself in his evidence on the identity of the appellant, the learned trial judge should have outrightly rejected his evidence. The maxim allegans contraria non est audiendus (one whose statements contradict each other must not be listened to) applies here.

It is clear that the evidence of the prosecution raised a lot of doubts about the commission of the offences alleged against the appellant; doubts that are reasonable doubts and not fanciful or imaginary doubts. A criminal matter is one that needs to be considered very painstakingly by the judge. The Court must ensure that the standard of proof beyond reasonable doubt is not one that is a mere mantra but one that is strictly applied. The standard of that proof must be such that the evidence adduced is one that is solid and virtually fool-proof. Indeed the watchword should be in crimin probationes debent esse juca clariores in criminal cases proofs must be clearer than daylight.?

In this case, the learned trial judge ought to have given the appellant the benefit of the doubt that arose

from the various contradictions and conflicts in the evidence, some of which have been highlighted above. As held by the Supreme Court in Chukwu v. State (1996) 7 NWLR 980 463 p. 686, “where the prosecution’s evidence is found to be contradictory on a material issue, the Court should give the benefit of that doubt to an accused person that stems from the non-credibility of such evidence and discharge and acquit him? Issue 2 is resolved in favour of the appellant.

I now turn to the third and final issue. That issue as will be resiled is whether the release or certain exhibits on bond to PW3 and the eventual sale of same by him is right. This issue which is issue 3 in the Appellant?s Brief, is issue 1 in the Respondent’s Brief. Appellant?s Learned Counsel submitted on this issue that the lower Court took a casual position on the release of certain Exhibits to PW3. It was submitted that the charge against the appellant, at the lower Court remained an allegation until proved beyond reasonable doubt. Learned Counsel noted that one of the Exhibits released to PW3 was a motorcycle and yet the appellant was not alleged to have robbed PW3 of his

motorcycle. It was submitted that the power granted to a Magistrate under Section 270 of the Criminal Procedure Law, to release an Exhibit is only available after a pronouncement of a judgment: of guilt. It was contended that the release of the exhibit was based on an assumption that the appellant was guilty, an assumption, which it was argued, is unconstitutional. Learned Counsel submitted that by releasing the precious stones found in the possession of the appellant to PW3 and the selling of the stones by PW3, the appellant had been denied the opportunity of showing that the precious stones were his.

In his argument in reply, on this issue, the respondent?s learned counsel conceded that the release of some exhibits on bond to PW3 and the eventual sale of those exhibits by PW3 was wrong. The Learned Magistrate, learned counsel argued, had no jurisdiction to entertain an application in a matter in which, he had no jurisdiction. It was conceded by learned counsel that the sale of the exhibits was illegal. Learned Counsel however argued that the appellant suffered no injustice as a result of the release of the Exhibits and their eventual sale since

the lower Court did not make any specific findings on the said exhibits.

Obviously, both learned counsel agreed that the release of the Exhibits to PW3 and the eventual sale of the Exhibits by him was wrong. While a trial Court is not bound as a matter of law to make a finding as to the probative value or all the exhibits before a conviction can be grounded, (See Haruna v. AG of the Federation 2012 LPELR – 782 (SC) it will not be proper for Exhibits to become unavailable to the Court for further consideration, evaluation, or appraisal by reason of their disposal before the end of a case. In this case, the unavailability of the precious stones imposed a handicap on the defence in the sense that it removed an opportunity for the defence to demonstrate that the precious stones did not belong to the complainant but were the property of the appellant. Perhaps if the stories were available to the Court an entirely different perception as to their ownership might have been taken by the Court. Any doubt that might have arisen as a result of the non-availability of the exhibits in the circumstances will have to be resolved in favour of the appellant. Issue 3

is also resolved in the appellants favour.

In conclusion, I am satisfied that the appeal has merit. Where the prosecution does not prove its case the defendant is acquitted ? actore non probante, absolivitur. The appeal has merit and is allowed.The judgment of the lower Court is hereby set aside and instead, the appellant is discharged and acquitted.

HARUNA SIMON TSAMMANI, J.C.A.: I had the advantage of reading before now, the draft of the judgment just delivered by my learned brother, O. DANIEL-KALIO, JCA.

It is not in dispute that the prosecution had tendered a purported confessional statement of the Appellant in the course of the trial. A trial within trial was conducted to determine whether or not the statement complied with requirements of admissibility, under Section 28 of the Evidence Act, 2011.

The learned trial Judge ruled on it and determined that the statement was inadmissible on the ground that force was applied on the Appellant before he made the statement. Alas, as pointed out by the learned trial Judge, that statement was represented before the Court, as the law requires that the statement which was rejected

should have been so marked. Since it was never presented before the Court, it was never so marked as rejected.

Upon the above scenario, the prosecution practiced an unethical and unconscionable act on the Court and indeed the defence by representing that same statement that had been rejected. This is surely an attitude that should be seriously deprecated, especially in a serious charge like Armed Robbery when the life of a human being is involved. The prosecution should not strive at all cost to have the life of another human being terminated judiciously. That attitude is not prosecution but persecution, bothering on wickedness.

Clearly, the case against the Appellant was not proved by the evidence presented at the trial Court. The statement relied on is clearly inadmissible and the fact of the identity of the Appellant as one of the robbers is clearly contradictory. It is established law that evidence on a material element or ingredient of an offence that is contradictory must be discarded. Such evidence will not be sufficient to secure a conviction, especially where a capital offence ls involved.

It is for the above reason and the detailed

reasons articulated in the lead judgment that I agree that the appeal has merit. It is accordingly allowed. The conviction and sentence meted out on the Appellant is hereby set aside. He is discharged and acquitted.

NONYEREM OKORONKWO, J.C.A.: Wherever any doubt arises as to the culpability of an accused person, such doubt is resolved in favour of the said accused by a discharge, the law does not speculate on this point.

It is in relation to discrepancies or perhaps contradictions in the prosecutions account that these doubt arose which his Lordship on appeal resolved them in favour of the appellant.

?I agree with the reasoning and conclusions reached.

Appearances

Musibau Adetunbi with him, Kingsley Onu and O. B. AlukoFor Appellant

AND

T. M. Abudulganiyu, Director Public Prosecution, Oyo Stare Ministry of Justice with him, Mrs shukrah Adeleke, state counselFor Respondent