ADEYEYE OLUMUYIWA v. THE STATE
(2019)LCN/12517(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 15th day of January, 2019
CA/AK/35C/2017
RATIO
EVIDENCE: CATEGORIES OF INADMISSIBLE EVIDENCE
“It should be borne in mind that there are two categories of inadmissible evidence. Evidence which is absolutely in law, not within the competence of the parties to admit by consent or otherwise. The second class of inadmissible documents is for example, a document which is inadmissible in law but admissible upon fulfillment of certain conditions E.g admission of unstamped instrument required to be stamped. See the case of SHITTU & ORS V FASHAWE (2005) 14 NWLR, PT 946, 671. In the former category of inadmissible evidence, the evidence cannot be acted upon by the trial Court and where he does act upon it such evidence will be expunged. See the case of JOHN & ANOR V STATE (2011) 18 NWLR, PT 1278, 353.” PER PATRICIA AJUMA MAHMOUD, J.C.A.
EVIDENCE: WHETHER EXTRA JUDICIAL STATEMENT OF A WITNESS IS ADMISSIBLE
“It has been undoubtedly settled that in a criminal case, a previous statement, especially an extra judicial statement of a witness who is available to testify is not admissible in evidence except in cross examination for the purpose of impeaching his testimony. See the case of WANKEY V STATE (1993) LPELR-3470. Indeed Brett JSC puts it more aptly in the case of ADISA V STATE (1964) ANLR, 193 also reported in (1964) LPELR-25197 when he held that:
‘In a criminal case, a previous statement made by an ordinary witness is admissible only as affecting the credibility of his evidence and not as proof of the truth of what it says.'” 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
ADEYEYE OLUMUYIWA Appellant(s)
AND
THE STATE Respondent(s)
PATRICIA AJUMA MAHMOUD, J.C.A.(Delivering the Leading Judgment):
The appellant was charged and tried for the offence of armed robbery contrary to Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap R.11, Vol. 14, Laws of the Federation of Nigeria, 2004. It was the case of the prosecution that on the 25th day of September, 2010 at about 10:30am, the appellant while armed with a gun robbed a pathfinder jeep belonging to Elder Shile Ajetumobi. In proof of their case, the prosecution called three witnesses and tendered five exhibits marked as Exhibits A1 -A5.
The appellant in his defence testified as DW1 and denied all the allegations against him. The Appellant’s mother (Dupe Adeyeye) also testified as DW2 in his defence.
At the conclusion of hearing, the trial Court presided over by Hon. Justice O.O Akeredolu of the Ondo State High Court of Justice, Akure Division in its judgement delivered on the 10th day of August, 2010 found the appellant guilty as charged and sentenced him to death by firing squad.
It is against this conviction that the appellant has by an amended notice of appeal dated 30th of May, 2017, filed on 21st of June, 2017 which was deemed properly filed on the 12th day of February, 2018 now appealed to this Court on five (5) grounds:
GROUND ONE
The lower Court erred in law when it stated that:
“Even though PW2 did not state categorically that there was identification parade from his evidence he went to the police station shortly after the defendant was caught and taken to the police station. His memory is his assailant must still be fresh. Failure of the police to conduct formal identification parade is inconsequential.”
PARTICULARS OF ERROR
a) Causes are decided based on cogent and credible evidence and not on assumption and guess work
b) There is no cogent and credible evidence before the lower Court to the effect that the memory of PW2 is still fresh to recognize the appellant at the police station without formal identification parade being conducted.
c) Failure of the police to conduct formal identification parade to ensure that the appellant was/is the one who stole a pathfinder Jeep is fatal to the Respondent’s case
d) The decision of the lower Court that the memory of PW2 of his assailant must still be fresh is unsupported by the available evidence in the record of appeal as same was based on assumption.
e) The judgement of the lower Court has occasioned miscarriage of justice against the appellant.
GROUND TWO
The lower Court erred in law when it held that:
“It is not mandatory for the prosecution to call all the police men that were involved with investigation therefore prosecution cannot be penalized for failure to call Corporal Olubu.”
PARTICULARS OF ERROR
a) Although, the prosecution is not bound to call a host of witnesses to prove its case, but a vital witness must be called to prove its case as required by the law.
b) Corporal Olubu is a vital witness whose evidence is material to decide the validity or otherwise of the evidence of the appellant that one sergeant Kayode Olubu, (One of the I.P.Os threatened to send the appellant to prison if the appellant refused to cooperate with the police.)
c) Failure to invite/call Seargeant (sic) Kayode Olubu as witness by the Respondent is fatal to the Respondent’s case and the presumption of law is that, doubt has been created reasonable enough to discharge and acquit the appellant.
d) The Respondent did not prove its case beyond reasonable doubt as required by law.
GROUND THREE
The lower Court erred in law when it held that:
“The case of Alabi V State (supra) does not support the submission of defence counsel that the robbed item must be tendered.”
PARTICULARS OF ERROR
a) The Appellant was alleged to have committed an offence of armed robbery in this case in respect of a pathfinder Jeep.
b) The pathfinder Jeep allegedly robbed by the appellant was not tendered at the lower Court for the Court to see and ascertain same.
c) Failure of the Respondent to tender the said pathfinder Jeep allegedly robbed/stolen by the Appellant is fatal to the Respondent’s case.
d) Failure of the lower Court to follow the decision in Alabi V State (1993) 7 NWLR PT 307, 511 is fatal and same has occasioned a great miscarriage of justice against the Appellant.
GROUND FOUR
The lower Court erred in law when it hold (sic) that:
“The learned defence counsel consistently argued that there are doubts which must be resolved in favour of the defendant but I have not been able to find any…I find that the evidence of the prosecution witnesses coupled with the confessional statements of the defendant have proved beyond reasonable doubt the identity of the defendant as the culprit.”
PARTICULARS OF ERROR
a)It is trite law that doubt, no matter how slight must be resolved in favour of the accused person.
b) It is also trite law that the prosecution must prove its case beyond reasonable doubt and until that is done, the accused person need not enter any defence.
c) There is material contradictions/inconsistencies in the evidence of the prosecution witnesses, the accused person will be accorded the benefit of doubt arising from such contradiction in consistencies.
d) The judgement other lower Court is perverse.
GROUND FOUR (sic)
The judgement of the lower Court is unreasonable, unwarranted and cannot be supported by evidence.
Whereof the appellant urged this Court to allow this appeal and set aside the judgement of the lower Court.
The appellant prosecuted this appeal through his counsel Mr. O.M Atoyebi vide a brief of argument dated 25th day of October, 2017, filed on the 18th day of November, 2017 which was deemed properly filed on the 12th day of February, 2018. In it, Counsel formulated two (2) issues for determination. They are:
1. Whether the respondent could be said to have proven its case beyond reasonable doubt as required by the law. (Grounds 1, 2 & 3)
2. Whether the appellant is entitled to discharge and acquittal (Grounds 4 and 5)
In adopting the brief as his legal argument, learned counsel for the appellant referred this Court to the cases of INUSA SAIDU V STATE (1982) 4 SC, 26 AT 42; OFORLETE V STATE (2000) 12 NWLR, PT 681, 415 and OLAYINKA V STATE (2007) 9 NWLR, PT 1040, 561 to submit that the prosecution has failed to prove its case beyond reasonable doubt. That the prosecution carries the burden throughout the trial and it never shifts. Counsel argued that the law is trite that an uncontroverted evidence is deemed admitted. That the appellant testified on oath that he was a student of Ekiti State University, Ado Ekiti and this was not controverted by the prosecution. Counsel referred this Court to the case of NACENN (NIG) LTD V B.A.P LTD (2011) NWLR, PT 1257, 193 and others as detailed more particularly on page 7, lines 16-18 of his brief.
On whether the robbed items must be produced, Counsel relied on the cases of ALABI V STATE (1993) 7 NWLR, PT 307, 511; MARTINS V STATE (1997) NWLR, PT 481, 355 and FATAI OLAYINKA V STATE (2007)9 NWLR, PT 1040, 561 to submit that the prosecution’s failure to produce the pathfinder allegedly robbed was fatal to its case. That the lower Court erred in law when it held that ALABI V STATE (SUPRA) does not support his submissions on producing the robbed items.
On the involuntariness of Exhibits A1 and A2, learned counsel for the appellant submitted that both confessional statements were extracted from the appellant. That the appellant was tortured by one Mr. Kayode Olubu. That this was never controverted by the prosecution throughout the trial. Learned counsel referred this Court to pages 75-76 of the printed records to further submit that the lower Court erred in law when heavy reliance was placed on the said Exhibits A1 and A2 to convict the appellant. He placed reliance on the case of OKOEBOR V POLICE COUNCIL (2003) 12 NWLR, PT 834, 444 and OLALEKAN V THE STATE (2001)18 NWLR , PT 746, 793.
On failure to call vital witnesses, referring to the cases of IMHANRIA V NIGERIAN ARMY (2007)14 NWLR, PT 1053, 76; EDOHO V THE STATE (2004)5 NWLR, PT 865, 17 and THE STATE V NNOLIM (1994)5 NWLR, PT 245, 394, learned counsel to the appellant contended that the prosecution’s failure to call CPL Kayode Olubu was fatal to their case. That the appellant’s allegations on the involuntariness of Exhibits A1 and A2 was never controverted. That same has created a doubt that ought to be resolved in favour of the appellant.
On identification parade, Counsel argued that the appellant was wrongly accused of the crime. That there was no evidence on record to show that the police selected persons of similar physical stature to line up with the appellant. That the identification purportedly made by the police was wrong. Counsel referred this Court to the cases of OKOSI V THE STATE (1989) 1 NWLR, PT 100, 642; ALIYU V THE STATE (2007) AFWLR, PT 388, 1123 and THE STATE V AJIE (2000) 7 SCNJ, 1 and urged this Court to uphold this appeal and set aside the judgement of the lower Court, discharge and acquit the appellant.
The respondent’s brief of argument dated and filed on 12th day of February, 2018 was settled by Mr. Adekola Olawoye of counsel for the respondent. In adopting the brief counsel formulated a sole issue for the determination of the Court as follows:
‘Whether from the nature, circumstances, substance and situations of this case, the learned Hon. trial Judge was not right when he held that ?I find that the evidence of the prosecution witnesses coupled with the confessional statements of the defendant have proved beyond reasonable doubt the identity of the defendant as the culprit.’
In adopting the brief as his legal argument in support of his opposition to this appeal, counsel referred this Court to the cases of AYENI V STATE (2016) 11 SCM, 1; EYO V STATE (2016) 6 SCM, 58 and OKIEMUTE V STATE (2016) 15 NWLR, PT 1535, 297 to submit that the prosecution adequately linked the appellant to the commission of the offence. He further submitted that the onus was discharged appropriately. Learned counsel for the respondent referred to pages 74-75 of the printed records to submit that the trial Court evaluated the evidence of both parties and came to the right decision.
That the appellant’s argument that he was not cross examined as to his involvement in the offence for which he was tried is a falsehood that has no root. Counsel referred this Court to page 8 of the printed records to support his submissions.
On failure to produce the robbed items, relying on page 75, lines 24-34 of the printed records, learned counsel contended that there was enough evidence to show that a pathfinder jeep was robbed. That the trial Court dealt with this when it held that the failure to produce the items was immaterial. Counsel referred this Court to the case of ADAMU V STATE (2017)1 SCM, 1.
On the involuntariness of both confessional statements, learned counsel referred to page 45 and pages 51 -52 of the printed records to submit that the records contradict the allegations of the appellant as to the involuntariness of Exhibits A1 and A2. That parties are bound by the records of Court. He placed reliance on the case of OGORO V SEVEN-UP BOTTLING CO. PLC (2016) 13 NWLR, PT 1528, 1. Counsel further submitted that the right time to raise objections to the admissibility of a document is when the prosecution seeks to tender same in evidence. Counsel referred this Court to the case of DIDA V STATE (2017) 5 SCM, 25 and IFARAMOYE V THE STATE (2017) 4 SCM, 1.
On the absence of the investigator, learned counsel to the respondent submitted that Exhibit A1 had been made before the said investigator (Mr. Kayode Olubu) came into the matter. That the prosecution has the discretion to call whatever number of witness(es) it deems necessary. He referred the Court toOCHIBA V THE STATE (2011) 17 NWLR, PT 1277, 663.
On identification parade, learned counsel referred to page 47, line 26 of the printed records to contend that PW2 spent a reasonable time with the appellant. That the appellant was arrested with the vehicle at the scene of crime, hence there was no need for identification parade. Counsel referred this Court to the case of OLANIPEKUN V THE STATE (2016) 13 NWLR, PT 1528, 100 and others as more particularly detailed in the brief. Learned counsel to the respondent submitted that the prosecution has established that the appellant was among the robbers and that they were armed with offensive weapons. That this fact was not in any way challenged and it is always open to the Court seized of the proceedings to act on such unchallenged evidence. He referred the Court to the case of MOHAMMED V STATE(2015) LPELR- 25916, 22, PARAS D-F. Learned counsel finally submitted that the Court can convict on the evidence of a single witness if it is believed by the Court. That PW1 was graphic and cogent in his evidence. He referred this Court to NWOKOCHA V A.G IMO STATE (2016) 8 SCM,99 AT 123, PARAS F-H and urged the Court to resolve this issue against the appellant.
From the briefs of both parties, the two issues raised by the appellant for the determination of the Court are:
1) Whether the respondent could be said to have proved its case beyond reasonable doubt as required by law.
2) Whether the appellant is entitled to a discharge and an acquittal.
These two issues are two sides of one coin really. Whether the appellant is entitled to a discharge and an acquittal is a function of whether the respondent has proved its case beyond reasonable doubt and vice versa. In other words, if the respondent has not proved its case beyond reasonable doubt, the appellant automatically is entitled to a discharge and an acquittal. This means, the sole issue for determination as formulated by the appellant is whether the respondent has proved its case beyond reasonable doubt. The issue submitted by the respondent on the other hand is:
‘Whether from the nature, circumstances, substance and situations of this case, the learned trial judge was not right when he held that, I find that the evidence of the prosecution witness coupled with confessional statement of the defendant have proved beyond reasonable doubt the identity of the defendant as the culprit.’
Apart from the verbosity there is no difference between this issue and the adopted issue for the appellant, which is ‘Whether the respondent has proved its case beyond reasonable doubt’. This makes me to wonder why the respondents think they must raise issues different from the issues raised by the appellant only to make them appear to be properly in opposition’. First of all, it is the appellant who appealed, through grounds of appeal. It is settled law that issues for determination arise out of grounds of appeal. And when not so derived, they are incompetent. See the case of IBRAHIM V MOHAMMED (2003) 6 NWLR, PT 817, 615 AT 647, PARAS A-C.
Where a respondent is not a cross appellant, whose grounds of appeal provide the foundation for his issues? Secondly, the role of the respondent in an appeal is to answer to the issues raised by the appellant. And so if the respondent does not adopt the issues raised by the appellant but focuses on raising his own, he stands the risk of failing to effectively answer to the issues raised by the appellant. In the good old days, respondents would adopt the issues raised by the appellant and if they feel the issues raised do not effectively cover the dispute to be resolved vis-a-vis the evidence led or if they have crossed appealed then, they could raise additional issues. This novel practice of the two parties competing as to who uses better jargon in formulating issues create unnecessary and avoidable work for the Court. The Court still has to determine all the issues raised by the parties seriatim or harmonize them or select the issues that will adequately determine the dispute between the parties.
Having let out the steam, I find that the seven point summary contained in the respondent’s brief of argument would provide a useful guide as to whether the prosecution has proved its case beyond reasonable doubt. The first point is whether the respondent adduced enough evidence to prove armed robbery against the appellant.
Both parties agreed on what ingredients need to be proved for the offence of armed robbery to be deemed established or proved:
1) The fact that there was a robbery or series of robbery;
2) That the accused person participated in the said robbery or robberies and
3) That at the time of the robbery, the accused person was armed with a firearm or some offensive weapon or in the company of a person so armed.
See the case of EYO V STATE (SUPRA) cited by the respondent’s Counsel.
I must commend the learned trial judge for setting out in detail, the evidence that was led by the prosecution to prove these essential elements of the offence of robbery. These include the testimonies of PW1, PW2, PW3 and Exhibits A1, A2, A3, A4 and A5. Exhibits A1 and A2 are the confessional statements of the appellant at the Police station and SARS respectively. Exhibit A3 is the statement of the complainant Elder Shile Ajetumobi who was alleged to be out of the country for medical treatment at the time of trial. Exhibit A4 is the gun that was used for the robbery while Exhibit A5 is the investigation report written by CPL Olubu Kayode, a member of the five man team that investigated the case at SARS Akure. There was no explanation from PW3 through whom Exhibit A5 was tendered why the said CPL Olubu Kayode could not come to testify in Court.
I find it rather curious that the learned trial judge admitted Exhibits A3 and A5 as a matter of course. The explanation of his Lordship is that there was no objection. Admissibility of a document is not governed by objection or lack of it by the opposition side. This is more so in criminal cases where the rules governing ‘Fair Hearing’ have to be religiously guarded to favour the accused person. It has been undoubtedly settled that in a criminal case, a previous statement, especially an extra judicial statement of a witness who is available to testify is not admissible in evidence except in cross examination for the purpose of impeaching his testimony. See the case of WANKEY V STATE (1993) LPELR-3470. Indeed Brett JSC puts it more aptly in the case of ADISA V STATE (1964) ANLR, 193 also reported in (1964) LPELR-25197 when he held that:
‘In a criminal case, a previous statement made by an ordinary witness is admissible only as affecting the credibility of his evidence and not as proof of the truth of what it says.’
The question then may be asked, what was the purport of admitting Exhibit A3, the statement of the complainant, Elder Shile Ajetumobi? He was not a witness in the proceedings in the lower Court so it could not have been to test the credibility of his testimony. The explanation given by the witness, PW3 through whom Exhibit A3 was admitted was that the complainant was unavailable as he had gone for medical treatment abroad. How long has he gone for and why couldn?t the prosecution seek an adjournment to accommodate his testimony if it was important to their case? It is beyond question that the aim of admitting Exhibit A3 in evidence is as proof of what it says. This is confirmed by the fact that the trial Court relied and acted upon it. That being the case and on the authority of ADISA V STATE (SUPRA) it is inadmissible. See also the case of THE STATE V JOHN OGBUBUNJO & ANOR (2001) 2 NWLR, PT 698, 576. It is on record in these proceedings that the defence counsel took no objection to the admission of this document. (See pages 48-49 of the printed records).
It should be borne in mind that there are two categories of inadmissible evidence. Evidence which is absolutely in law, not within the competence of the parties to admit by consent or otherwise. The second class of inadmissible documents is for example, a document which is inadmissible in law but admissible upon fulfillment of certain conditions E.g admission of unstamped instrument required to be stamped. See the case of SHITTU & ORS V FASHAWE (2005) 14 NWLR, PT 946, 671. In the former category of inadmissible evidence, the evidence cannot be acted upon by the trial Court and where he does act upon it such evidence will be expunged. See the case of JOHN & ANOR V STATE (2011) 18 NWLR, PT 1278, 353.
This is a criminal case. Any evidence that is admitted without giving the accused an opportunity to challenge same either by way of cross examination or otherwise in my view would amount to a denial of the accused’s right to fair hearing. In a trial, if a witness testifies and he is not available for cross examination, his testimony would be expunged. Conversely, this inadmissible evidence (Exhibit A3) even though admitted without objection of the defence is hereby expunged from the records of the Court.
This takes us to Exhibit A5, the investigative report of IPO at SARS who was alleged to have taken the statement of the appellant at SARS, Akure. This is CPL Olubu Kayode. His report was tendered through PW3. PW3 never gave any explanation why CPL Olubu Kayode could not come to Court. Under SECTION 49 OF THE EVIDENCE ACT, 2011, it is provided that, where in the course of any criminal trial, the Court is satisfied that for any sufficient reason, the attendance of the Investigating Police Officer (IPO) cannot be procured, the written signed statement of such officer may be admitted in evidence by the Court if:
a) the defence does not object to the statement being admitted and
b) the Court consents to the admission of the statement.
Conditions (a) & (b) may have been fulfilled as the defence counsel at Page 50 line 14 of the printed record did not object to it.
The Court by allowing it consented to its admission. I find however that the condition precedent has not been fulfilled. The Court has not been satisfied as to why the said CPL Olubu Kayode could not come to testify in person. In other words, no reason was given and the law requires sufficient reason to be given. I am in great difficulty to accept that this evidence is admissible and was properly admitted. This is because of the grave allegations made against the said CPL Olubu Kayode, by DW2. It is greatly troubling that this kind of serious allegations against an officer who investigated a crime is not only glossed over but that the Court would rely on his evidence to convict the appellant. This to me will be a travesty of justice. For a better appreciation of my position in this matter, I reproduce the testimony of DW2 the mother of the appellant at page 53 lines 11-14 of the printed records:
‘On 29th September, 2010, it was the day my phone rang, I asked for my caller. He said he is Corporal Kayode Olubu from Akure that my son was at SARS Office. When I arrived there, I was told I should look for N150,000 so that we could be released. I gave him N100, 000’.
This witness was never cross examined by the prosecuting counsel. Neither was any question put to her by the Court to clear this rather grave and weighty allegations. In the face of this unresolved allegation and coupled with the failure to comply with SECTION 49 of the EVIDENCE ACT, 2011 as well as on the authority of ADISA V STATE (SUPRA), I find that Exhibit A5 is admissible. Having wrongly admitted it, I hereby expunge same from the record of the Court.
I am fortified in this position by the decision of the SUPREME COURT in the case of ARCHIBONG V STATE (2006) 14 NWLR, PT 1000, 349 where it was held:
‘Now in any trial where evidence has been improperly received by the trial Court even where no objection is raised, it is the duty of the appellate Court to reject such evidence and decide the case on the available legal evidence’.
Having expunged Exhibits A3 and A5 from the records, is there sufficient evidence in the records to sustain the conviction of the appellant for armed robbery? What is left of the admissible evidence consists of Exhibits A1, A2, and the testimonies of PW1, PW2 and PW3. Exhibits A1 and A2 are the confessional statements of the appellant. At the time of admission of the document, the defence counsel in respect of A1 said the appellant did not sign it. In respect of A2, counsel said the appellant did not make it. For both statements, the defence counsel never questioned the voluntariness of the statements. The learned trial judge in my view was perfectly right to have admitted them in evidence. In ISONG V THE STATE (2016) LPELR-40609, the Supreme Court Per Kekere-Ekun, JSC held as follows:
?it is trite that the stage at which to challenge the voluntariness of a confessional statement is at the point when the prosecution applies to tender it in evidence. When Exhibit A2 was sought to be admitted in evidence, there was no objection to its voluntariness. The objection raised was that it was not endorsed before a Superior Police Officer. The Court was therefore correct in admitting it in evidence.
It was during his evidence in chief that the appellant not only retracted the statement but also raised the issue of its involuntariness. It is in the nature of an accused person to retract his confessional statement. The question is, is it enough for an accused person to retract his statement without leading evidence to show that the retracted story is possible and believable? Once a confessional statement is validly admitted in evidence, it becomes part of evidence of the prosecution. The trial judge is therefore at liberty to use it. Where there is a feeble retraction like in the instant case in respect of Exhibit A1 where the appellant through his Counsel simply said he did not sign Exhibit A1 and full stop. There was nothing the trial judge could have done differently. If however the contention of the appellant, like I understand it is that the signature on Exhibit A1 is not his own, applied and wrote his signature a couple of times and the trial Court made a comparison and satisfied itself that the signature of Exhibit A1 could not have been made by the appellant, it would have discountenanced it and placed no weight on it.
In respect of Exhibit A2, the retraction was more wobbled. In one breath, the appellant said CPL Olubu Kayode dictated to him what to write; in another, he said he threatened/ tortured him to extract the statement. Neither of these allegations was supported by evidence by the appellant. The learned trial judge properly considered the retractions vis-a-vis the other evidence to hold that the retractions were afterthoughts. For instance, Exhibit A1 was made at the Police Station in Ondo town where the appellant was arrested. CPL Olubu Kayode was not in the picture at that point. How did he know the details of what the appellant stated in Exhibit A1 in Exhibit A2? And even if for any unjustifiable reason at this time, Exhibit A2 is expunged, the Court could still have properly acted on Exhibit A1 to convict the appellant. In the case of DIBIE & ORS V THE STATE (2007) 9 NWLR, PT 1038, 30 the Supreme Court held that the retraction of a confessional statement by an accused person in his evidence on oath during trial does not adversely affect the situation once the Court is satisfied of its truth, it can rely solely on the confessional statement to ground a conviction. See also the more recent case of the apex Court in MUSA V STATE (2018) LPELR-43846.
The other issue raised by the appellant’s counsel is as to the identification of the appellant. Counsel had argued that since PW2 did not know the appellant before the arrest and arraignment, the Police ought to have conducted an identification parade to ensure that the wrong person was not arraigned. An identification parade is not the only way of establishing the identity of an accused person in relation to the offence charged. Where the witness has ample opportunity to identify the accused person, a parade is not necessary. Recognition of an accused may be more reliable than identification. See the Supreme Court case of EYISI V THE STATE (2000) 15 NWLR, PT 691, 555. In the instant case, the evidence on record is that PW2 had interacted with the appellant who had gone to their shop to buy a car. He had chosen a car and requested a test drive which they embarked on with PW2 before he lured the witness to a road where he showed him a gun. This made the witness to jump out of the car which the appellant was driving away before nemesis caught up with him and he had an accident. I find that the witness, PW2 spent enough time with the appellant to have easily recognized him soon after the way he did considering the circumstances of being shown a gun by someone he had relaxed with all along as a good customer buying a big car. Besides, as held by this Court in the case of ARCHIBONG V STATE (2004) 1 NWLR, PT 855, 488, where an accused person by his confession has identified himself, there will be no need for any further identification parade. I hold therefore that the learned counsel to the appellant is misconceived in this contention and I discountenance it.
The issue was also raised by the appellant?s counsel of the failure of the prosecution to tender in evidence the pathfinder Jeep robbed by the appellant as being fatal to the case. Counsel cited three cases of ALABI V STATE (SUPRA); MARTINS V STATE (SUPRA) and OLAYINKA V STATE (SUPRA). Regrettably and quite unfortunately, none of the authorities relate to non tendering of product of the crime. The case of Alabi was on improper identification of the accused who was not arrested at the scene of crime. This is the distinction the lower Court sought to make when it held that, The case of ALABI V STATE (SUPRA) does not support the submission of defence Counsel that the robbed item must be tendered.? (See page 75 of the printed records, lines 26-27).
There the learned trial judge relied on the holding of Bello, JSC (as he then was) in the case of OLUWATOBA V STATE (1985) 2 SC, 357 AT 359 thus:
‘I find the complaint against the non-production of the car not material. Production of a subject matter of a robbery is not mandatory in all cases.’
See also the case of THE PEOPLE OF LAGOS STATE V. UMARU (2014) 7 NWLR, PT 1407, 584 where Muhammad, JSC held that non tendering of weapons used in the commission of a crime is not fatal to the prosecution’s case. At best it goes to the weight. Drawing inspiration from this, I dare hold that the non-production in evidence of the pathfinder jeep is not fatal to the prosecution?s case. This is in view of Exhibit A1 and the evidence of PW2.
Was CPL Olubu Kayode a vital witness of which failure to call him is fatal to the prosecution’s case? In answering the question who is a vital witness, the Supreme Court in the case of OGUDO V. STATE (2011) 18 NWLR, PT 1278, I, defined a vital witness as a witness whose evidence is fundamental in that it determines the case one way or the other. That failure to call a vital witness is fatal to the prosecution. See also the judgment of this Court in the case of OWOLABI V. THE STATE (2014) LPELR 24039. CPL Olubu Kayode was not called as a witness but his investigation report was admitted in evidence as Exhibit A5. I expunged it from the record together with Exhibit A3. Still there is enough evidence with which to sustain the conviction of the appellant. I can say therefore with all sense of confidence that CPL Olubu Kayode is not a vital witness and failure to call him is not fatal to the prosecution?s case. I so hold.
The last point for consideration would appear to be lack of corroboration of the confessional statements of the appellant. PW2, was Olajide Ayo a staff of Shile Motors. He was the one from whom the appellant robbed the car when they went to test drive. His evidence corroborates Exhibits A1 and A2. It is settled law that even though evidence of corroboration must be an independent testimony, it needs not consist of direct evidence that the accused person committed the offence nor does it need to amount to a confirmation of the whole account given, in this case by Exhibits A1 and A2. See the case of OGUNBAYO V. STATE (2007) 8 NWLR, PT 1035, 157.
In the instant case the evidence of the witness PW2 is direct evidence. If believed by the trial Court, it is sufficient to prove the case of the prosecution beyond reasonable doubt. I find therefore, that the evidence of PW2 sufficiently corroborates Exhibits A1 and A2.
From all my findings in this judgment it is apparent that the sole issue adopted for determination in this appeal ought to be resolved against the appellant. I so resolve. Consequently I hold that this appeal fails. I accordingly dismiss it. The judgment of the lower Court delivered on the 10th day of August, 2016 is hereby affirmed.
While doing so I would wish to comment on the sentence passed by the lower Court on the appellant and I quote:
‘I hereby sentence you Adeyeye Olamuyiwa to death by firing squad.’
By SECTION 1 (2)(a) of the Robbery and Firearms (SPECIAL PROVISIONS) Act, CAP RII LAWS OF THE FEDERATION, 2004, any person who commits the offence of robbery while armed with any firearms or any offensive weapon or is in company with any person so armed shall upon conviction under this Act be sentenced to death.
Sub SECTION (3) provides:
‘The sentence of death imposed under this section may be executed by hanging the offender by the neck till they be dead or by causing such offender to suffer death by firing squad as THE GOVERNOR MAY DIRECT.’ (Emphasis provided).
Clearly the method of executing the sentence is at the pleasure of the governor. It will serve us all very well if trial judges in convicting and passing sentences keep within the ambit of the law. This would minimize the frivolous appeals emanating from the Court. It is not beyond some frivolous lawyers to appeal against this type of sentence on the grounds that it is illegal. It pays to act strictly within the law.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: I had read in draft, the lead Judgment prepared and delivered by my learned brother, Patricia Ajuma Mahmoud, JCA in this appeal; and I do endorse that the appeal has no merit.
The Evidence of PW2 – an eye witness account of the robbery of the car robbed was clearly corroborated by the confessional statements Exhibits A and A2. Appellant could, upon either of the evidence of PW2 alone or any of A1 and A2 be convicted.
It is sad that the investigation thrusted into the case the bad taste of attempting to use the statement of CPL Olubu Kayode (Exhibit A5) and Exhibit A3 – being the inadmissible evidence i.e. statements of persons whose absence had not been shown to have been sufficiently explained and accepted by the Court and without an objection by the Defence. The expungement of the said Exhibits A5 and A3 had not affected the fact of the proof of guilt amply shown. I endorse the dismissal of the appeal as in the lead made.
RIDWAN MAIWADA ABDULLAHI, J.C.A.: I read in draft the lead judgment of my learned brother, PATRICIA. A. MAHMOUD, JCA. just delivered. I agree entirely with the reasoning and conclusion that this appeal is unmeritorious and should be dismissed. My learned brother has admirably considered and ably resolved the issues in contention in this appeal and I have nothing more to add. I too dismiss the appeal. The judgment of the trial Court is hereby affirmed.
Appearances:
Mr. O.M Atoyebi For Appellant(s)
Mr. Taiwo Olubodun (DDCL, Ministry Of Justice, Akure, Ondo State)For Respondent(s)
