GBENGA ORIYOMI ADEBOYE v. THE STATE
(2011)LCN/4732(CA)
In The Court of Appeal of Nigeria
On Friday, the 15th day of July, 2011
CA/IL/C.62A/2010
RATIO
INTERPRETATION OF STATUTE: INTERPRETATION OF 36 (6) (B) AND (C ) OF THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA AS IT REGARDS RIGHT OF AN ACCUSED PERSON TO BE AFFORDED ADEQUATE TIME AND FACILITIES FOR THE PREPARATION OF HIS DEFENCE AND TO BE REPRESENTED BY A LEGAL PRACTITIONER AT EVERY STAGE OF THE PROCEEDINGS IN A TRIAL FOR A CAPITAL OFFENCE
A perusal of section 36 (6) (b) and (c ) of the Constitution of the Federal Republic of Nigeria would reveal that this matter goes beyond legal technicalities. The net effect of the sections is that an accused person must be afforded adequate time and facilities for the preparation of his defence and to defend himself in person or by a legal practitioner of own choice. Indeed, such is the robust corpus of case law on this question that one may, legitimately, speak of the jurisprudence of legal representation in capital offences. Our survey of these cases reveals that the following broad principles crystallise from them: An accused person must be represented by counsel at every stage of the proceedings in a trial for a capital offence, Udo v The state (1988) 6 SCNJ 181, 199; Udofia v. State (1988) 7 SCNJ (pt 1) 118, 123; the provisions are mandatory and not directory, Udo v The State (1988) 6 SCNJ 181, 199; the emphasis here is that such an accused person must be represented by counsel throughout the proceedings, Josiah v State (1985) 1 NWLR(pt.1) 125; (1985) I NSCC (Vol. 16) 132; Saka v State (1981) 11-12 SC 65; (1981) NSCC (Vol.12) 474. Thus, where, as in this case, the accused person was unrepresented by counsel, the trial court had no choice than to adjourn the matter “as the counsel whether briefed or assigned must be present and defend such an accused person. Indeed, it is the accused person’s right to get an adjournment once the counsel briefed by, or assigned to, him is absent”, see per Nnaemeka-Agu JSC in Udo v. State (supra) 187; also, Udofia v State (1988) 7 SCNJ (pt 1) 118, 123; this is so because the representation of any person accused of the commission of an offence by a legal practitioner at the trial is one of the fundamental rights guaranteed by section 36 of the 1999 Constitution: a section which introduces or perpetuates what Lord Denning referred to as “the fundamental principle of a fair trial”, Tameshwar v The Queen (1975) AC 476, 486, approvingly cited in Udo v State (supra) 189 ; thus, if the charge is for a capital offence and the accused person is unrepresented by counsel of his choice, the court has a statutory duty to provide such representation, Nemi v State (tgg4) 10 SCNJ 1, 29. A trial involving a capital offence cannot be said to be fair when an accused person, standing trial for his life, has to conduct the case himself, at any stage of the trial, as against the counsel for the prosecution, who is, almost always, the Director of public Prosecutions, Udo v State (supra). To permit such an accused person to “slug out his defence…against the prosecution” would be contrary to the spirit of section 36 (6) (c) and (d) of the Constitution, Udo v State (supra); The State (Hearly) v Donoghue (1976) 1 R 325 (decision of the Irish Supreme Court), adopted approvingly in Udo v State (supra) 189. In all, the weight of judicial authorities preponderates in favour of the view that an accused standing trial for a capital offence must be defended by counsel at every stage of the trial. Unarguably, the arraignment of an accused person in court is a crucial stage of the trial process. Hence, counsel must be present when his plea is being taken, Udo v State (supra). Against the background of these weighty authorities, I have no choice than to err on the side of these prescriptions: prescriptions firmly anchored on a proactive construction of the constitutional right to a fair trial. Thus, with respect, as between Effiong v State (1995) 28 LRCN 320; 1995) 1 NWLR (pt 373) 507 to the effect that the absence of counsel on the day of arraignment does not vitiate the trial and the above decisions which hold a contrary position, I prefer to err in favour of  Udo v State (supra); Udofia v Stare (supra); Josiah v State (supra); Saka v State (supra) etc; see, also, I. O. Smith, The Constitution of the Federal Republic of Nigeria Annotated (Lagos: Ecowatch Publications Ltd, 1999) 61. After all, it is settled that where there are conflicting decisions of the Supreme Court, this court can choose any of them, see GTII Plc v FADCO (2007) 7 NWLR (pt 1033) 307, 325. I, therefore, hold that the absence of counsel on March 18, 2008, when the plea of the appellant was taken, vitiated the entire trial. PER CHIMA CENTUS NWEZE, JCA
PROOF BEYOND REASONABLE DOUBT: WHAT PROOF BEYOND REASONABLE DOUBT ENTAILS
…the legal prescription on proof beyond reasonable doubt is one formulation that has remained immutable ever since its eloquent enunciation in Woolmington v DPP ( 1935) AC 462. only recently, Mukhtar JSC held that “by virtue of the provision of section 138 of the Evidence Act, for a crime to result in a conviction, the prosecution must prove its case beyond reasonable doubt”, see Ebeinwe v state (2011) 7 NWLR (pt.1246) 402, 417 It is when the prosecution discharges this burden, that is, proves the commission of the offence beyond reasonable doubt, that the evidential burden then shifts to the accused person to adduce evidence of other facts which may raise reasonable doubt on the case of prosecution, see, section 138 (3) Evidence Act; Folorunsho Kazeem v state (); also , per Idigbe ISC in Okogbue v. C.O.O, (1965) NMLR 232. As this court observed in Folorunsho Kazeem v state [supra), “The Act acknowledges this fluctuation of the evidential burden to the accused person, see, sections 138 (3), 139, 141 and 143 of the Evidence Act; Nasiru v. State [supra) p.215. Where the court is left in doubt, the effect is that the prosecution failed to discharge the onus laid by law and the accused person will be acquitted, Ugbeneyovwe v. State [supra) pp. 652 – 653”. Although, it is conceded that the expression, “reasonable doubt” does not lend itself to a precise meaning or definition, the Nigerian Supreme Court approvingly adopted the opinion of Denning J (as he then was) in Miller v. Minister of Pensions (1947) 2 ALLER 372. In that case, His Lordship, speaking of the degree of cogency required for the conviction of an accused person, explained that: It need not reach certainty but it must carry a high degree of probability. Proof beyond a reasonable doubt does not mean proof beyond the shadow of a doubt. The Law would fail to protect the community if it permitted fanciful possibilities to deflect the course of justice. This dictum has been endorsed over and over by the Supreme Court, Bakare v. state (1987) l NWLR (pt. 52) 579,587; Akalasi y. state (1993) 2 SCNJ 19. – 30; Adekunle v. State (1989) 12 SCNJ 184, 198; Brown v. State (2005) 31 WRN 13, 158. In Bakare (supra) p. 587 oputa JSC paraphrased the above opinion of Denning I in these words: Absolute certainty is impossible in any human adventure including the administration of criminal justice. Proof beyond peasonable doubt…. does not admit of plausible and fanciful possibilities but it does admit of a high degree of cogency, consistent with an equally high degree of probability. see, also, Oputa JSC in Omorhirhi v. Enatevwere (1988) 1 NWLR (pt 73) 746 In one sentence, proof beyond reasonable doubt does not mean that the prosecution must prove its case with mathematical exactitude. In plain terms, the prosecution is said to prove its case beyond reasonable doubt when it has proved all the ingredients of the particular offence the accused person is charged with, Jamani v. State (2005) 21 WRN 191, 212. Where, therefore, there is a lingering doubt, the accused person is given the benefit of that doubt, Ekpe v. State (1994) 12 SCNJ 131; Namsoh v. State (1993) 6 SCNJ (pt. 1) 55, 69. Consistent with this rule, a court cannot draw an inference of guilt from mere suspicion. PER CHIMA CENTUS NWEZE, JCA
BURDEN OF PROOF: DUTY OF THE PROSECUTION TO PROVE THE GUILT OF AN ACCUSED PERSON BEYOND REASONABLE DOUBT
The prosecution had a duty to establish the ingredients of the offence. Thus, before even considering the defence of the accused person the prosecution must have marshalled such evidence as to shift the burden to the accused person “to say anything in defence about the commission of the offence”, (page 124 of the record), see, section 138 (3), Evidence Act; Folorunsho Kazeem v State (); also, per Idigbe ISC in Okogbue v. C.O.P. (1965) NMLR 232. As we held in Folorunsho Kazeem v State (supra) proof in criminal trials is attained against the background of the burden codified in section 138 (1) of the Evidence Act. This section does not impose a duty on the accused person to purge himself of guilt. Rather, it imposes an obligation on the prosecution to prove the guilt of the accused person beyond reasonable doubt. PER CHIMA CENTUS NWEZE, JCA
INTERPRETATION OF STATUTE : INTERPRETATION OF SECTION 36(5) OF THE CONSTITUTION AS REGARDS THE PRESUMPTION OF INNOCENCE OF THE ACCUSED UNTIL HE IS PROVED GUILTY
This section guarantees the right to the presumption of innocence, a fundamental principle of most just penal laws, often couched in the ancient maxim in dubio pro reo. This maxim dictated the constitutional principle in the said section 36[5) of the 1999 Constitution. It provides that: Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty; provided that nothing in this section shall invalidate any law by reason only that the law imposes upon any such person the burden of proving particular facts. The courts have interpreted the section as imposing the burden of proving the guilt of an accused person on the prosecution, obiakor v. state (2002) 10 NWLR (pt.776) 612. PER CHIMA CENTUS NWEZE, JCA
JUSTICES:
TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria
SOTONYE DENTON WEST Justice of The Court of Appeal of Nigeria
CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria
Between
GBENGA ORIYOMI ADEBOYE – Appellant(s)
AND
THE STATE – Respondent(s)
CHIMA CENTUS NWEZE, JCA (Delivering the Leading Judgment): The appellant herein and two other persons were arraigned before the Kwara State High Court, holden at Ilorin (coram judice: Afolayan J) (hereinafter referred to “the lower court”) on March 18, 2008. They were charged with the offences of, criminal conspiracy to commit armed robbery; armed robbery and giving information to armed robbers as to who and where to rob contrary to sections 6 (6); 1 (2) (a) and 6 (a), respectively, of the Robbery and Fireams Act Cap R 11 Laws of the Federation of Nigeria 2004.
At the close of evidence, the appellant was found guilty of the offences of criminal conspiracy and armed robbery. The lower court convicted him, accordingly.
Aggrieved by that decision, he appealed to this court. He formulated three issues for the determination of this appeal from his six grounds of appeal. They were couched thus:
(1) whether the failure of the learned trial Judge to ensure a legal representation on the day of arraignment i.e. 18th March, 2008 has not denied the appellant his right to fair hearing.
(2) whether the appellant is bound to prove his innocence on the commission of the alleged offences against him.
(3) whether the learned trial Judge was right in relying on (sic) evidence of the pw2 without tendering the alleged confessional statement of the 1st accused Person/appellant.
(a) whether failure to provide the appellant the opportunity to cross examine PW4 has not robbed the appellant of his defences.
The respondents adopted the above issues: issues which will guide this court in the determination of this appeal, first issue one.
ISSUE ONE
(1) Whether the failure of the learned trial Judge to ensure a legal representation on the day of arraignment i.e. 18th March, 2008 has not denied the appellant his right to fair hearing.
Learned counsel for the appellant, first, pointed out that on March 18, 2008, the three charges were read to the appellant and the other two accused persons. They pleaded not guilty to the charges. He explained that although the appellant (as the first accused person) as well as the second accused person were not represented by any counsel on the date of their arraignment, the lower court failed and or refused to oblige them with the services of counsel. In effect, the lower court proceeded with the proceeding of the day even in the absence of their counsel. He, further, observed that on the same day, that is, March 18, 2008, the prosecution moved an application dated February 28, 2008 and filed on 3rd March, 2008, asking for the leave of the Court to supply additional exhibit and evidence in support of the charges. The said application, which was taken on that day, was brought pursuant to section 237 of the Criminal Procedure Code. He explained that during the final addresses, counsel pointed out this anomaly to the lower court but it still went ahead and convicted the accused Persons, citing page 121 of the record for the court’s findings in this respect.
Counsel submitted that the court’s position was unjustifiable against the background of the surrounding circumstances of the case. He, further, submitted that in a criminal proceeding, particularly, in capital offences as in the instant case, it is a fundamental right of an accused person to be provided with counsel where he is unrepresented, citing Rule 5 of the Robbery and Firearms Tribunal (Procedure) Rules 1975 and section 36 (6) of the 1999 constitution of the Federal Republic of Nigeria.
He canvassed the view that apart from violating the appellant’s right contained in Section 36 (6) (b) (supra), the proceedings of that day, also, contravened section 36 (c),of the said Constitution. He noted the operative phrases in the latter provision, namely , to “defend himself in person” and (b) “or by legal practitioners of his own choice.” He took the view that since it was not on record that the appellant opted to defend himself during the proceedings of the said 18th March, 2010 it was the duty of the lower court to ensure that the accused person was, duly, represented by counsel. This is so for the word “shall” use in section 36 (6) of the Constitution connotes a command which must be given a compulsory meaning, Bamaiyi v Attorney General of the Federation (2001) 12 NWLR (pt.727) 480.
He, further, contended that on that day, when the appellant was unrepresented in court, the court ought to have granted the appellant an adjournment to secure the service of the Legal Practitioner of his choice. He observed that in the trial of capital offences, the court must, as a matter of fact, grant an adjournment once the accused person’s counsel is absent. Accordingly, the absence of any legal representation for the appellant on the said day, though a partial non-representation, had, substantially, affected the trial. In a word, it occasioned a miscarriage of Justice, Udo v The State ( 1988) 3 NWLR (pt. 82) 316; also , Nemi v The state (1994) 10 SCNJ 1, 31 particularly paragraph 10.30.
He, therefore, submitted that the failure of the lower court to adjourn the proceedings to enable the accused person brief counsel to represent him, particularly, on the said day, had vitiated the proceedings ab initio, notwithstanding the fact that he was, subsequently, represented by counsel in the proceedings.
Counsel explained that when an accused person is charged with a capital offence, as in the instant case, the court must, where the accused person is not defended by counsel, assign a counsel to him, citing section 186 of the Criminal Procedure Code, Laws of Kwara, 1994. He submitted that the lower court ought to have availed itself the opportunity of the above provision on the 18th March,2008 when the appellant as well as other accused persons were arraigned in court. In his view, the significance of the proceedings of that particular day lay in the fact that it marked the beginning of the road to the trial. Secondly, the application by the prosecution for leave of the court to supply additional exhibits and evidence in support was an attempt by the prosecution to smuggle in evidence against the appellant. If he had been assigned a counsel that particular day, there is every likelihood of an objection to the said application. This proceeding is at best, a breach of the right to fair hearing on the part of the accused person.
He, further, noted that the court was duty bound to assign counsel to the appellant, especially, when the charges against him were capital in nature. The court did not have to consult him or seek his consent before appointing counsel to defend him.
Once counsel does not represent him, the court ought to have appointed one for him, citing Okon v. The State (1995) 1 NWLR (pt. 372) 382; also, Josiah v The State (1985) I NSCC 132. He urged the court to declare the entire proceedings void and the conviction a nullity.
Counsel, also, urged the court to hold that failure of the lower court to assign counsel to the appellant on the said date had breached his right to fair hearing. He contended that the duty to observe the rules of fair hearing is as old as jurisprudence itself. Nowadays, it is codified as a fundamental right under section 36 of the 1999 constitution of the Federal Republic of Nigeria. Fair hearing, in the context of this section, encompasses the plenitude of natural justice in the narrow technical sense of the twin pillars of natural Justice: audi alteram partem and nemo judex in causa sua.The principle of audi alteram partem, which is relevant in the instant case, means that the other party must be heard. He submitted that the proceeding of 18th March, 2008, which was the floor gate for the conviction of the appellant herein, had, fundamentally, negated this principle for the following reasons:
(1) The Accused Person was not represented by any counsel and none was assigned to him by the Court as mandated by the law as ably amplified earlier in this brief. Therefore the Appellant could not have been assumed to have understood the nature of the proceeding of that day thus; he could not offer any preparation thereof.
(2) The Application by the prosecution for the leave of the Court to supply additional exhibit and evidence could not have been understood by the Appellant. If the Appellant had been represented that day, there is likelihood or possibility of objection by the Appellant Counsel.
The above illustration and or explanation captured the futility of the proceedings of 18th March, 2008, this in effect, renders the proceedings a nullity, Baba v NCATC (1991) 5 NWLR (pt.191) 388,403; also, Adigun v A.G. Oyo Stare (1987) 1 NWLR (pt. 53) 678. He observed that the decision of the lower court not to assign counsel to the appellant on 18th March, 2008 had negated the above principle laid down by the apex Court, Adigun v A.G. Oyo State (supra); Ekuma v Silver Eagle Shipping Agencies (1987) 4 NWLR (pt 65) 472,486. He observed that at every stage of proceeding in this case includes the proceeding of 18th March, 2008, citing Olufeagba v Abdulraheem ( 1010) ALL FWLR (pt. 5 12) 1034, 1085 PAR A. In view of the foregoing, he urged the court to hold that failure of the lower court to assign counsel to the appellant on 18th March, 2008 had breached the Appellant’s right to fair hearing.
For the respondent, it was pointed out that the grouse of the appellant is that on the 18th of March 2008 when the plea of the appellant was taken and the prosecution moved an ex parte application to call additional witness and additional exhibits, there was no counsel representing the appellant yet learned trial judge went ahead to grant the application. Attention was drawn to 119 of the record where the lower court rationalised its approach on the day in question from the perspective of the Criminal Procedure Code. Counsel observed that the said findings of the trial court, it was clear that the lower court, adequately, considered this issue and came to the right conclusion.
He noted that the grouse of the appellant under their issue was the complaint bordering on fair hearing. He proceeded to examine the concept of fair hearing in relation to the grouse of the appellant, citing Duke v Government of Cross River State (2009) ALL FWLR (pt. 488) 252,273-274.
Counsel canvassed the view that the appellant’s contention that he was not given fair, hearing premised on the court proceeding of 18th of March, 2008 was an overstatement and an attempt to expound the boundary of legal technicalities as opposed to substance of the case. He explained that the application which the prosecution brought was an ex parte application similar in form and content with the application for direct trial which, by virtue of section 185(b) of the Criminal Procedure Code and Rule 3(1) (2) of the Criminal Procedure (Application to prefer a charge in the High Court) Rules 1970 must be ex parte.
He explained that the additional list of witnesses and the exhibits were neither tended nor admitted on that date. What the learned trial judge did was to allow the prosecution to list them as facts which are to be proved before the court. These additional witnesses were called and cross examined by the counsel to the appellants. He observed that a careful perusal of this proceeding at the lower court would reveal the following:
i) That the appellant knew very well the case made against him;
ii) The appellant was given all opportunity to present his case as his counsel was allowed to cross examine the witnesses called by the prosecution except the one that died before he was cross-examined.
The appellant presented his defence unfettered.
iii) The appellant addressed the court in support of his case.
He submitted that, with all the above, the appellant cannot complain of having not been given fair trial solely on what transpired in court on the 18th day of March 2008. He, further, submitted that the lower court could not have assigned counsel to the appellant based on the proceedings of 18th day of March 2008. The appellant on that day said he had counsel who, of course, was absent in court. In his view, the issue of assigning counsel to him could only have been logical if he had said he had no counsel to represent him. He contended that all the cases cited above, were inapposite. He observed that in Josiah v The State (supra), the appellant therein was never represented by counsel at any stage of the proceeding.
So that case could not have been apposite.
RESOLUTION OF ARGUMENTS
The events that prompted the above contentions trace their root to what transpired at the lower court on March 18, 2008. The appellant and two others were arraigned before the said court for the offences of conspiracy to commit armed robbery contrary to section 6 (b) of the Robbery and Firearms Act; armed robbery contrary to section 12 (a) of the Act and giving information to armed robbers as to who and where to rob contrary to 6 (a) of the same Act.
The charges were read to the accused persons. As can be gleaned from the record, “The three accused persons pleaded not guilty to the charges after they were read and explained to them in Yoruba Language. The prosecution listed eight witnesses and one exhibit. First and Second accused persons were yet to be represented by counsel…” [page 105 of the record]. Indeed, there is even an entry in the record which showed that on that day counsel for the appellant was indisposed: “first accused- Mr Tunde Olomu is our lawyer (1st and 2nd) and he is sick”, page 63 of the record.
While learned counsel for the appellant impugned the trial and conviction that resulted from this arraignment, the learned DPP canvassed the view that any such challenge was an attempt “to expound the boundary of legal technicalities as opposed to [the] substance of the case”, paragraph 3.08 of the Respondent’s Brief of Argument.
Thus the main question here is whether the lower court was right to have permitted the appellant to take his plea to the said offences when he was unrepresented by counsel. With profound respect to the learned DPP, this issue transcends the “boundaries of legal technicalities”. It verges squarely on the fundamental question of fair trial which does not fall into the genre of technical doctrines but rather belongs to the domain of substantive law, Ogundoyin v Adeyemi (2001) 33 WRN 1, 14-15.
A perusal of section 36 (6) (b) and (c ) of the Constitution of the Federal Republic of Nigeria would reveal that this matter goes beyond legal technicalities. The net effect of the sections is that an accused person must be afforded adequate time and facilities for the preparation of his defence and to defend himself in person or by a legal practitioner of own choice. Indeed, such is the robust corpus of case law on this question that one may, legitimately, speak of the jurisprudence of legal representation in capital offences. Our survey of these cases reveals that the following broad principles crystallise from them:
An accused person must be represented by counsel at every stage of the proceedings in a trial for a capital offence, Udo v The state (1988) 6 SCNJ 181, 199; Udofia v. State (1988) 7 SCNJ (pt 1) 118, 123; the provisions are mandatory and not directory, Udo v The State (1988) 6 SCNJ 181, 199; the emphasis here is that such an accused person must be represented by counsel throughout the proceedings, Josiah v State (1985) 1 NWLR(pt.1) 125; (1985) I NSCC (Vol. 16) 132; Saka v State (1981) 11-12 SC 65; (1981) NSCC (Vol.12) 474.
Thus, where, as in this case, the accused person was unrepresented by counsel, the trial court had no choice than to adjourn the matter “as the counsel whether briefed or assigned must be present and defend such an accused person. Indeed, it is the accused person’s right to get an adjournment once the counsel briefed by, or assigned to, him is absent”, see per Nnaemeka-Agu JSC in Udo v. State (supra) 187; also, Udofia v State (1988) 7 SCNJ (pt 1) 118, 123; this is so because the representation of any person accused of the commission of an offence by a legal practitioner at the trial is one of the fundamental rights guaranteed by section 36 of the 1999 Constitution: a section which introduces or perpetuates what Lord Denning referred to as “the fundamental principle of a fair trial”, Tameshwar v The Queen (1975) AC 476, 486, approvingly cited in Udo v State (supra) 189 ; thus, if the charge is for a capital offence and the accused person is unrepresented by counsel of his choice, the court has a statutory duty to provide such representation, Nemi v State (tgg4) 10 SCNJ 1, 29.
A trial involving a capital offence cannot be said to be fair when an accused person, standing trial for his life, has to conduct the case himself, at any stage of the trial, as against the counsel for the prosecution, who is, almost always, the Director of public Prosecutions, Udo v State (supra). To permit such an accused person to “slug out his defence…against the prosecution” would be contrary to the spirit of section 36 (6) (c) and (d) of the Constitution, Udo v State (supra); The State (Hearly) v Donoghue (1976) 1 R 325 (decision of the Irish Supreme Court), adopted approvingly in Udo v State (supra) 189. In all, the weight of judicial authorities preponderates in favour of the view that an accused standing trial for a capital offence must be defended by counsel at every stage of the trial.
Unarguably, the arraignment of an accused person in court is a crucial stage of the trial process. Hence, counsel must be present when his plea is being taken, Udo v State (supra). Against the background of these weighty authorities, I have no choice than to err on the side of these prescriptions: prescriptions firmly anchored on a proactive construction of the constitutional right to a fair trial. Thus, with respect, as between Effiong v State (1995) 28 LRCN 320; 1995) 1 NWLR (pt 373) 507 to the effect that the absence of counsel on the day of arraignment does not vitiate the trial and the above decisions which hold a contrary position, I prefer to err in favour of  Udo v State (supra); Udofia v Stare (supra); Josiah v State (supra); Saka v State (supra) etc; see, also, I. O. Smith, The Constitution of the Federal Republic of Nigeria Annotated (Lagos: Ecowatch Publications Ltd, 1999) 61. After all, it is settled that where there are conflicting decisions of the Supreme Court, this court can choose any of them, see GTII Plc v FADCO (2007) 7 NWLR (pt 1033) 307, 325. I, therefore, hold that the absence of counsel on March 18, 2008, when the plea of the appellant was taken, vitiated the entire trial. I therefore, resolve this issue in favour of the appellant.
ISSUE TWO
Whether the Appellant is bound to prove his innocence on the commission of the alleged offences against him.
It was submitted for the appellant that in criminal cases, the onus is on the prosecution to prove the elements which make up the offence charged, citing section 138 (2) of the Evidence Act. He contended that consistent with the above provision, the standard of proof required is beyond reasonable doubt and not beyond all shadow of any doubt. He drew attention to page 124 of the record where the lower court said inter alia it watched the demeanour of the accused persons and they did not say anything in defence about the commission of the offence. It was contended that the lower court’s findings in this regard cannot be supported by any iota of evidence led before it. The appellant (as the first accused person) before the lower court, apart from denying ever committing the offence, gave evidence that he saw the other accused persons and the complainant for the first time at the Police station counsel pointed out this piece of evidence was neither shaken nor contradicted during cross-examination yet the lower court held that “They do not say anything in defence about the commission of the offence.” He called attention to the evidence of the appellant on page 100 of the record.
Counsel observed that apart from the evidence of the pw2 (the complainant), who allegedly identified the accused person; no other witnesses called by the prosecution linked the appellant to the commission of the crime. He recalled that when the complainant was being cross-examined, his evidence was shaken. For example, he said he did not have a night guard. Worse still, none of his neighbours came out when the robbers were breaking his gate. What is more, he said he first suspected one man called Idowu Sanda, citing pages 85-86 of the record. Counsel observed that the PW1 was only an exhibit keeper. He, only, tendered exhibits without more and did not give evidence to link the appellant to the commission of the offences charged. Counsel, also, referred to the testimony of Pw3 [PC Joseph Oluwatosin]. During his examination in chief he said he only took the statement of the third accused person, pages 87-88 of the record. Counsel noted that the said PW3 only gave evidence that she was among the team of policemen detailed to investigate the case. She was, only, instructed by the team leader to record the statement of the third accused person. She never gave evidence linking the appellant (as the first accused person) to the commission of the offence. What is more, during cross-examination she denied knowing when the appellant (as the first accused person) was arrested. She stated that she did not know when the first and second accused persons were arrested. She, equally, did not know how the exhibits were recovered. She, indeed, did not do anything again apart from recording the statement of the third accused person, page 89 of the record.
He turned to PW4’s testimony on page 89. He observed that the most fundamental flaw in the proceeding before the lower court was that this principal witness, who personally investigated the appellant, was never produced for cross-examination.
He identified another fundamental anomaly before the lower court as the failure of the prosecution to tender the alleged confessional statement of the appellant. He explained that when it was the time for the appellant to cross-examine PW4, that is, Inspector Matthew Adinor, he was alleged to have died. Worse still, ASP Towose Bamidele, who endorsed the alleged confessional statements of the appellant, had been transferred to Kiama. He could not be reached to confirm or deny the alleged confessional statement of the appellant. Thus the court was robbed the opportunity of confirming whether or not the appellant made the statement, citing page 98 of the record.
Counsel submitted that, from the totality of the analyses of the witnesses’ evidence above, the duty of proving the guilt of the accused person had not been discharged by the prosecution. He urged the court to hold that the appellant was not duty bound to prove his innocence to the commission of the offences. He cited R v Veka (1945) 11 WACA 39 as authority for the proposition that the onus is upon the prosecution to prove the elements which make up the offence charged. If it fails to prove any of them the accused person is entitled to an acquittal and if in spite of that he is convicted he is entitled to have the conviction quashed.
He listed the ingredients of the charge of armed robbery thus: (a) that there was a robbery; (b) that the accused was armed with dangerous weapon at the time of commission of the offence (c) that the accused person, before the court, committed the robbery, citing Ikemson v The State (1989) NSCC 471,481. He submitted that from the totality of evidence led before the lower court, as reproduced above under this issue, the prosecution had failed to discharge the onus placed on them by the Law and it is not the duty of the appellant to prove his innocence, citing Kinnani v Bauchi Native Authority (1957) NRNLR 42; Obiode v The State (1970) 1 All NLR 35. He contended that where; as in the instant case, the prosecution failed to prove all the ingredients of the charge, the burden was not discharged. It is immaterial that the accused person admitted the commission of the crime. In effect, notwithstanding the alleged confessional statement of the appellant which was not tendered by the prosecution, the onus of proof has not been discharged by the prosecution Uchegbu v The State (1993) 8 NWLR (pt.309) 89, 105H; Auta v The State (1975) A NLR 163, 169; section 36 (5) 1999 Constitution of the Federal Republic of Nigeria.
He conceded that the only exception to section 138 (2) of the Evidence Act is contained in subsection (3) thereof which shifts the burden on the accused person.
However, since the prosecution had failed to discharge the burden in this case, subsection (3) of section 138 would not apply, Alabi v The State (1993) 7 NWLR (pt. 307) 511, 523; Okogbue v COP (1965) NMLR 232. He urged the court to allow the appeal, discharge and acquit the appellant because it is not his duty to prove his innocence, Nwankwo v The State (1990) 2 NWLR (pt. 134) 627,639; Kinnani v Bauchi N.A (1957) NRNLR 40.
Learned counsel for the respondent, in response, contended that the argument of the appellant under this issue does not display a clear understanding of the peculiarity of the offence charged and the background to the way and manner the appellants were arrested. He drew attention to paragraphs 7 .03 to 7.05 of the appellant’s brief where the appellant impugned the findings of the lower court as contained on page 124 of the record. He observed that the findings of the court were based on its assessment of the demeanour of the appellant. The said findings were founded on the evidence led by both the prosecution and the defence. He submitted that the trial court that saw and heard the witnesses was in a better position than this appellate court to assess the credibility of the witnesses. He maintained that the finding on page 124 of the record was based on the evidence led before the court.
He contended that the evidence of PW2, the victim of the robbery, not only fixed the appellant at the scene of crime but gave a vivid account of the role played by the appellant in the commission of the crime. He submitted that the contention that the appellant saw the complainant for the first time at the Police station cannot be supported by the evidence before the trial court.
He took the view that the story which the appellant narrated in his defence, even though not subject to cross extermination because of the absence of prosecuting State counsel in court, was most incredible in the circumstances and the trial court who had all the opportunity of seeing and watching the appellant’s demeanour was right to have come to the conclusion that the appellant’s defence was a farce in the circumstances]
He drew attention to paragraph 7.04 of the appellant’s brief of argument where it was contended that the evidence of PW2 was shaken under cross examination. He maintained that the appellant missed the point here. In his view, pW2’s evidence at page 86 of the record was of paramount importance here. He reproduced his evidence in cross examination on page 86. He explained that the responses obtained via cross examination did not shake the main evidence given by the appellant before the trial court in his examination in chief. He submitted that, apart from the evidence of PW1, the other circumstantial evidence led by the prosecution in relation to how the appellant and his cohort were arrested pointed, irresistibly, to the fact that the appellant and his cohorts were responsible for the robbery operation at the house and premises of pw2.
He submitted that the circumstantial evidence of the arrest of the appellants who were caught with the handset robbed from the house of pw2 through the aid of the call rolls on the handset through MTN, the service provider, was a clear circumstantial evidence that spoke for itself, citing Adio and Anor v The State (1986) 4 SC 219-220; Ogunbayode and Ors v The Queen (1954) 14 W.A.C.A 458(otherwise known as the Apalara case). He, further, submitted that the evidence of PW2 alone is sufficient to convict the appellants as charged since the trial court believed same, Okosi v The State ( 1989) 2 SC (pt.1) 126, 144.
Counsel drew attention to paragraph 7.05 of the appellant’s brief where it was contended that because PW3 said she was part of the team that investigated the case and the role she played was limited to statement taking amounted to a flaw in the prosecution’s case. He submitted that the evidence of this witness was neither shaken nor rebutted under cross examination. In his view, the most important consideration is whether the statement which she tendered was, properly, taken in line with the law or not. And the answer to that poser is in the positive.
He noted that the appellant made a heavy whether of the inability of the prosecution to bring. PW4 who was deceased before being cross examined. He submitted that even without the evidence of this witness, who died before he could be cross examined, the learned trial judge had enough evidence both oral and circumstantial, upon which the appellant could be convicted. He took the view that from the totality of evidence before the trial court, the following salient issues were established at the trial of the appellant: that there was robbery at the premises of PW2 on 30/6/2007; that the appellants and his cohorts, including the one that died while on bail in another gun battle with the police, were the robbers; that the appellants and his cohorts were armed at the time of the robbery, citing Ikemson v The state (1989) NSCC 471, 481. He submitted that proof beyond reasonable doubt is not, and must not be equated with, proof beyond every shadow of doubt, citing Bakare v The state (1987) 3 SC 1, 5. He maintained that okogbue v cop (supra) is inapposite as no reasonable doubt was created by the evidence of pW2 and the circumstantial evidence led by the prosecution in this case and the prosecution, sufficiently, established all the ingredients of the offences charged.
He submitted, further, that to interpret the findings of the trial judge on page 124 of the record to mean that the lower court shifted the burden of proving his innocence on the appellant is a misinterpretation of the findings because the underlined statement by the appellant on page 20 paragraph 7.1 3 of his brief of argument was not made in isolation’ The findings were borne out of an objective consideration of the evidence led by the prosecution vis a vis the defence of the appellant which was not only incoherent but lacked any evidential value worthy of withstanding the cogent, direct, reasonable and substantial evidence of the prosecution.
RESOLUTION OF THE ARGUMENTS
Both appellant’s counsel and the learned DPP rightly summed up the legal position with regard to proof- beyond reasonable doubt. Indeed, the legal prescription on proof beyond reasonable doubt is one formulation that has remained immutable ever since its eloquent enunciation in Woolmington v DPP ( 1935) AC 462. only recently, Mukhtar JSC held that “by virtue of the provision of section 138 of the Evidence Act, for a crime to result in a conviction, the prosecution must prove its case beyond reasonable doubt”, see Ebeinwe v state (2011) 7 NWLR (pt.1246) 402, 417
It is when the prosecution discharges this burden, that is, proves the commission of the offence beyond reasonable doubt, that the evidential burden then shifts to the accused person to adduce evidence of other facts which may raise reasonable doubt on the case of prosecution, see, section 138 (3) Evidence Act; Folorunsho Kazeem v state (); also , per Idigbe ISC in Okogbue v. C.O.O, (1965) NMLR 232.
As this court observed in Folorunsho Kazeem v state [supra), “The Act acknowledges this fluctuation of the evidential burden to the accused person, see, sections 138 (3), 139, 141 and 143 of the Evidence Act; Nasiru v. State [supra) p.215. Where the court is left in doubt, the effect is that the prosecution failed to discharge the onus laid by law and the accused person will be acquitted, Ugbeneyovwe v. State [supra) pp. 652 – 653”.
Although, it is conceded that the expression, “reasonable doubt” does not lend itself to a precise meaning or definition, the Nigerian Supreme Court approvingly adopted the opinion of Denning J (as he then was) in Miller v. Minister of Pensions (1947) 2 ALLER 372. In that case, His Lordship, speaking of the degree of cogency required for the conviction of an accused person, explained that:
It need not reach certainty but it must carry a high degree of probability. Proof beyond a reasonable doubt does not mean proof beyond the shadow of a doubt. The Law would fail to protect the community if it permitted fanciful possibilities to deflect the course of justice.
This dictum has been endorsed over and over by the Supreme Court, Bakare v. state (1987) l NWLR (pt. 52) 579,587; Akalasi y. state (1993) 2 SCNJ 19. –
30; Adekunle v. State (1989) 12 SCNJ 184, 198; Brown v. State (2005) 31 WRN 13, 158. In Bakare (supra) p. 587 oputa JSC paraphrased the above opinion of Denning I in these words:
Absolute certainty is impossible in any human adventure including the administration of criminal justice. Proof beyond peasonable doubt…. does not admit of plausible and fanciful possibilities but it does admit of a high degree of cogency, consistent with an equally high degree of probability.
see, also, Oputa JSC in Omorhirhi v. Enatevwere (1988) 1 NWLR (pt 73) 746
In one sentence, proof beyond reasonable doubt does not mean that the prosecution must prove its case with mathematical exactitude.
In plain terms, the prosecution is said to prove its case beyond reasonable doubt when it has proved all the ingredients of the particular offence the accused person is charged with, Jamani v. State (2005) 21 WRN 191, 212.
Where, therefore, there is a lingering doubt, the accused person is given the benefit of that doubt, Ekpe v. State (1994) 12 SCNJ 131; Namsoh v. State (1993) 6 SCNJ (pt. 1) 55, 69. Consistent with this rule, a court cannot draw an inference of guilt from mere suspicion.
In this case, counsel for the appellant has called attention of the finding of the lower court at page 124 of the record where the court made the following findings: I have watched the witnesses as they testified in the witness box the complainant (PW2) evidence as to the identity of 1st Accused Person leaves no doubt in my mind that he actually saw 1st Accused. He said they were not wearing masks. He identified 1st Accused as Person carrying gun and he used the gun to lift him up from the floor… I have watched the demeanour of the accused while giving evidence and they do not appear to me as witness of truth. They do not say anything in defence about the Commission of the offence. ” (italics supplied)
Learned counsel for the appellant endeavoured to show that this finding “cannot be supported by any iota of evidence led before it”, [paragraph 7.03 of the Appellant’s Brief of Argument]. Counsel devoted paragraphs 7.03-7.08 of the Brief to the analyses of the quality of evidence adduced by the prosecution. He drew attention to the inherent flaws in these testimonies, pointing out that PW1 was merely the exhibit keeper. On her Part, PW3 merely recorded the statements. Worse still, PW4, who investigated the appellant, was not produced for cross examination.
What is more, as the alleged confessional statement was not even tendered, there was no way of testing its voluntariness. Against this background, in our humble view, there is considerable force in the submission that “it is not the duty of the appellant to prove his innocence”, citing Kinnani v Bauchi NA ( 1957) NRNLR 42; Obiode v State (1970) 1 All NLR 35; Nwankwo v State (1990) 2 NWLR (pt 134) 627,639, [paragraph 7.09 of the Brief). The prosecution had a duty to establish the ingredients of the offence. Thus, before even considering the defence of the accused person the prosecution must have marshalled such evidence as to shift the burden to the accused person “to say anything in defence about the commission of the offence”, (page 124 of the record), see, section 138 (3), Evidence Act; Folorunsho Kazeem v State (); also, per Idigbe ISC in Okogbue v. C.O.P. (1965) NMLR 232.
As we held in Folorunsho Kazeem v State (supra) proof in criminal trials is attained against the background of the burden codified in section 138 (1) of the Evidence Act. This section does not impose a duty on the accused person to purge himself of guilt. Rather, it imposes an obligation on the prosecution to prove the guilt of the accused person beyond reasonable doubt.
This is an offshoot of the impregnable canon ordained in section 36 (5) of the Constitution of the Federal Republic of Nigeria, 1999. This section guarantees the right to the presumption of innocence, a fundamental principle of most just penal laws, often couched in the ancient maxim in dubio pro reo. This maxim dictated the constitutional principle in the said section 36[5) of the 1999 Constitution. It provides that:
Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty; provided that nothing in this section shall invalidate any law by reason only that the law imposes upon any such person the burden of proving particular facts.
The courts have interpreted the section as imposing the burden of proving the guilt of an accused person on the prosecution, obiakor v. state (2002) 10 NWLR (pt.776) 612. In all, we agree with the appellant’s counsel that the lower court’s finding that “They do not say anything in defence about the Commission of the offence” “cannot be supported by any iota of evidence led before it.” This is quite apart from the fact that section 138 (1) of the Evidence Act (supra) does not impose a duty on the accused person to purge himself of guilt. As already shown above, the section imposes an obligation on the prosecution to prove the guilt of the accused person beyond reasonable doubt, Folorunsho Kazeem v state [supra) ‘ The answer to this second issue, therefore, is that the appellant had no obligation to prove his innocence with regard to the commission of the offences alleged against him.
ISSUE NO 3
whether the learned trial Judge was right in relying on the evidence PW2 without tendering the alleged confessional statement of 1st accused person/appellant. It was submitted for the appellant that it was wrong for the lower court to have relied on the evidence of PW2, the complainant, without further requiring the alleged confessional state of the appellant. He referred to page 109 where the court found that PW4 was on the team that investigated the case and that he confirmed the evidence of PW2. Counsel, equally, referred to page 110 where the court, paraphrasing the testimony of the said Pw4, noted that the first accused person who was said to be the leader of the gang was arrested on Gambari oja-Gboro Road, Ilorin. The court re-iterated PW4’s testimony that the complainant was with them when they went to arrest the first accused person. Counsel noted the reference to the first accused person was a reference to the appellant. He observed that in spite of the incriminating evidence given by Pw4, the appellant herein was denied the right of cross-examining him. Even the alleged confessional statement, purportedly, given by the appellant was not tendered by the prosecution, citing page 111 of the record for the court’s findings on these points. He canvassed the view that against the background of the above findings, the appellant could not be said to have been given a fair trial.
Counsel urged the court to note that though Pw2, who was the complainant in the case, gave evidence incriminating the accused person, it was wrong for the lower court to have relied solely on that piece of evidence when a supposedly independent party, that is, Pw4, who investigated the matter and whose evidence seemed to have corroborated the evidence of PW2 was never presented to the appellant for cross-examination in the face of his incriminating evidence against the appellant’ Again, the alleged confessional statement which pw4 said was given by the appellant was not tendered in evidence to enable the appellant deny or confirm same’ To that extent, the appellant was not given a fair trial. He drew attention to the view which the court expressed on page 127 of the record to the effect that only PW4 was not cross examined and that without the evidence of Pw4 there was enough evidence against the first accused person given by the complainant.
counsel submitted that the above finding of the lower court had occasioned a grave miscarriage of justice to the appellant in that it nor only prejudiced his defence, but, actually, rendered the said defence in effectual. He submitted that the lower court ought to have treated the evidence of PW2 (who happened to be the complainant) with caution before convicting the accused person. He submitted further that a finding of fact by a court of law must be founded on credible evidence on a reasonable trial. It was, therefore, unsafe to found a conviction on speculative findings which were not based on what the accused person did but on what he ought to have done, citing Idowu v The State (1998) 11 NWLR (PT.574) 354.
It was conceded that although no particular number of witnesses was required for the proof of any fact, section 179 (l) of the Evidence Act, yet the lower court ought to have cautioned himself on relying on the evidence of PW2 who was the complainant in the case, Agih v Ejinkeonye and Bros Ltd (1992) 3 NWLR (pt. 228) 200, 211 G. He contended that a finding of fact must be founded on credible evidence or reasonable trial. It was, therefore, unsafe to base a conviction on speculative findings.
Similarly, it is trite that in criminal cases, particularly in capital offences, the court must arrive at its decision through a process of reasoning which is analytical and commands confidence, citing Nwosu v The State (1986) 4 NWLR (pt.35) 348. It was submitted that the decision of the lower court relying only on the evidence of PW2 without more, amounted to a perfunctory performance, citing Idowu v state (1998) 11 NWLR (pt. 574) 354, 363. He urged the court to set aside the conviction of the appellant based on speculative findings of the lower court. He, finally, submitted that the conviction of the appellant based on the evidence of PW2 alone, without considering the inability of the appellant to cross-examine PW4, which evidence if it had been allowed would have been capable of casting some doubt on the prosecution’s case, was without basis, olasoji and Anor v Attorney-General (1965) NMLR III, 112,Brett, JSC. He urged the court to resolve this issue in favour of the appellant and set aside his conviction.
The respondent noted that the gravamen of the appellant’s argument herein was the reliance the learned trial court placed on the evidence of PW2 without corroborating same with that of PW4, the deceased witness, before relying on same. Counsel submitted that the prosecution was not bound to call any and every witnesses who were present at the locus criminis. It only had a duty to call witnesses who would give relevant evidence in proof of its case, Iziren v The State (1995) 9 NWLR (pt. 420) 385,390.
He submitted further that the law does not require corroboration of the evidence of PW2 in cases of this nature. The testimony of one witness, if believed by the trial court, was enough to secure a conviction, citing Okosi v The State (supra) at page 144. Counsel pointed out that, in the case at hand, the learned trial judge had cause to believe the evidence of PW2 and came to the conclusion that the appellant was guilty as charged.
He noted that no evidence of malice was led by the defence to insinuate any ulterior motive for which PW2 was acting. There was, therefore, nothing suspect or anything that warranted the trial judge cautioning himself before believing the evidence of PW2
In his view, therefore, the argument of the appellant on paragraphs 8.01 to 8.06 of his brief of argument goes to no issue. He drew attention to page 123 of the record for the lower court’s evaluation of the evidence of PW2 vis a vis that of the appellant, that is, the first accused person. He, equally, referred to the court’s findings on page 125. He observed that the learned trial judge, adequately, gave sufficient consideration to the evidence led on both sides before coming to the logical conclusion that the appellants were guilty as charged.
Counsel submitted that in Criminal Law, the test of credibility in relation to a witness’s evidence is not a wholesale abstract theory devoid of reasonable and unascertainable variables, citing Okosi v The State ( 1989) 2 SC (pt. 1 ) 126, 142 paragraph 40; also, Onuoha v The State (1989) 2 SC (pt. 11) 125, 123. He maintained that the testimony of PW2 met all the tests stated in the above cases which, over the years, have been recognised as the tests of credibility in the testimony of a witness. In his view, the evidence of PW2, having met the above requirements, qualifies for reliance even without any further corroboration since it is credible.
He maintained that the situation in Otadeji v A/G (supra) which the appellant cited in paragraph 8.09 of his brief is not apposite to this and cannot, by any stretch of imagination, be likened to this instance because the complainant in that case did not see his attacker and no evidence was led to show that there was light to enable him identify his attackers. So, the Supreme Court came to the conclusion that there was doubt as to identification of the accused person therein.
In this case, conversely, PW2 identified his attackers and narrated the role played by each of them as they were not masked. The item stolen from him was recovered from them after the robbery and no explanation was offered as to how they got same. He wondered what else the prosecution was expected to show to prove its case.
ISSUE 4
whether failure to provide the appellant the opportunity to cross-examine pw4 has not robbed the appellant of his defence.
Counsel for the appellant first drew attention to page 109 of the record where the lower court pointed out that pw4, Inspector Mathew Adinor, in his testimony, disclosed that the case was transferred from the “C” Division police station to the state CID and that he was a member of the team that investigated the case. In addition, the court noted that the witness confirmed the evidence of pw2. He, further, drew attention to page 110 of the record where the court referred to the incriminating evidence of pw4 against the appellant. He submitted that in spite of PW4’s incriminating evidence against the appellant, he [the appellant] was denied the right of cross-examining the said witness: a denial of his constitutional right. He, also, observed that the so-called confessional statement which the appellant, purportedly, gave was not tendered by the prosecution, citing the trial court’s confirmation of this fact on page 111 of the record and section 36 (6) (d) of the 1999 Constitution of the Federal Republic of Nigeria.
Learned counsel read a mandatory requirement into the word “shall” in the above constitutional provision. Hence, the failure on the part of the lower court to allow the appellant cross-examine pw4 had breached the above mandatory provisions, citing Tulu v Bauchi Native Authority (1965) N.M.L.R.’ 343. In his further submission’ the failure to allow the appellant cross-examine pw4 had breached his right to fair hearing. He urged the court to allow this appeal; set aside the decision of the lower court and discharge and acquit the accused person.
For the respondent, it was submitted that the only argument of the appellant herein is whether the failure of the deceased pw4 to be cross examined robbed the appellant of his defence. Counsel drew attention to the approach of the rower court to the evidence of PW4 in relation to its finding of a guilty verdict, citing page 127 of the record. There the court acknowledged the unavailability of, pW4 for cross examination because he had died. It, however, still held that even without the evidence of this witness there was enough against the appellant given by the complainant, PW2.
Counsel, contended that it was apparent that the learned trial judge did not rely on the evidence of the deceased PW4 either as basis for conviction or as corroborative evidence to the evidence of PW2 in this case. He submitted that it was not the failure or fault of the learned trial judge not to have disallowed the appellant to cross examine PW4 rather the failure of the witness to be in court was purely by an act beyond the power of any body or institution. He was deceased. The learned trial judge therefore did not rely on the uncross examined testimony of the witness to convict rather she relied on the evidence of the victim which was direct, cogent and plausible as basis for convicting the appellants so the question of faulting the trial judge on this issue does not arise.
He submitted that the case of Tulu v Bauchi Native Authority (supra) was inapposite as PW2 was adequately cross examined here by the counsel to the appellant and his evidence was found to be unassailable. He submitted that the complaint under this issue did not arise from the trial as there was nothing from the record to show that it was the trial court that disallowed pw4 from being cross examined. Having not arisen from trial this complaint goes to no issue. He urged the court to dismiss the appeal.
RESOLUTION OIT ISSUES THREE AND FOUR
It is surprising that the learned DPP did not concede to the two main points canvassed in these issues, namely, the references the court made to the testimonies of the PW4: a witness who gave incriminating evidence against the appellant, and yet he (the appellant) did not have the privilege of cross examining him. The simple implication of the loss of that privilege is that he was robbed of the opportunity of utilizing that potent juridical tool, namely, cross examination, whose general aim is to enable the adverse party to demolish or weaken the case of the party being-cross examined and also to afford the cross examining party the opportunity of stating or presenting its case through the witness of its opponent, Iwuoha v Okoroike (1996) 2 NWLR (pt 429) 231, 247.
True, indeed, in a manner of speaking, it may be permissible to assert that the entire trial process revolves around this art of cross examination which Achike JSC, graphically, described as “a lethal legal weapon in the hands of the adversary to enable him effect the demolition of the case of the opposing party” Oforlette v. State (2002) 12 NWLR (pt 681) 415,436.
The Evidence Act, actually, underscores the purposes of cross-examination in section 200 which provides inter alia that:
When a witness is cross-examined, he may, in addition to the questions referred to, be asked any questions which tend —
(a) to test his accuracy, veracity or credibility, or
(b) to discover who he is and what is his position in life; or
(c) to shake his credit, by injuring his character …
By not being allowed to cross examine the said witness, the appellant was, in effect, denied the opportunity of testing the said witness’s accuracy; the veracity or credibility of his story in examination in chief or discovering who he was. What is more, the appellant could not employ the art of cross examination to shake the witness’s credit or to injure his character as envisaged by the above section of the Evidence Act. Worse still, the appellant’s alleged confessional statement was not tendered to enable him deny or confirm it. This is, particularly, worrisome having regard to the potency of a true confession. Hassan v State (2001) 6 NWLR (pt 709) 286, 301. I entirely agree with learned counsel for the appellant that these lacunae evident in the proceedings [see, pages 109; 110; 111 ; 127 of the record] demonstrate, in unequivocal terms, that the appellant was not given fair trial.
We have to observe here that the rationale of all authorities on the matter is that fair hearing imposes an ambidextrous standard of justice in which the court must be fair to both sides, Ndu v state ( 1990) 7 NWLR (pt 164) 550, 578. The touchstone for determining the observance of fair hearing in trials is not the question whether any injustice has been occasioned on any party due to want of hearing. It is rather the question whether an opportunity of hearing was afforded to parties to be heard, in this case, the appellant, Ogundoyin v Adeyemi (supra) 14-15.
Thus, in order to be fair, “hearing” or “opportunity to be heard” must inter alia encompass a party’s right: to cross examine or otherwise confront or contradict all the witnesses who testified against him; to have disclosed to him the nature of all relevant material evidence, including documentary evidence, prejudicial to him except in exceptions, Durwode v state (2001) 7 WRN 50. In the circumstance, I find substantial merit in the complaint of the appellant here.
Having thus resolved all the issues canvassed in favour of the appellant, question is the nature of the order to be made. From my reading of the extant authorities, I entertain no doubt that the proper consequential order to be made is an order for re-trial, see. Gokpa v IGP (1961) All NLR 423; Kajubo v state (1961) 1 NWLR 721; Josiah v stare (supra); Udo v state(supra) 199 200. Accordingly, I hereby enter an order allowing this appeal. The conviction and sentence on the appellant are hereby set aside. In their place, I hereby order that the appellant be re- tried before another Judge of the High court of Kwara state. Appeal allowed.
TIJJANI ABDULLAHI, J.C.A.; I have had the privilege of reading in draft the lead judgment of my learned brother, C, C, NWEZE J,C.A., just delivered. His Lordship has admiringly dealt with all the live issues that call for determination in this appeal. I cannot agree more with him when he held on Issue No. 1 for determination thus:
“This issue transcends the “boundaries of legal technicalities”.
It verges squarely on the fundamental question of fair trial which does not fall into the genre of technical doctrines but rather belongs to the domain of substantive law, Ogundoyin v. Adeyemi (2001) 33 WRN 1, 14-15″
For this reason and the more detailed ones contained in the lead judgment, I too allow the appeal and abide by the consequential order therein contained.
SOTONYE DENTON WEST, J.C.A.: I have the privilege of reading the draft of this lead judgment. I agree with the judgment just delivered by my learner brother CHIMA CENTUS NWEZE JCA, and more especially with the reasoning enunciated therein.
From a close scrutiny and study of the appeal, I find that it is not lacking in merit, and I therefore allow the appeal and endorse the order made in thereof. I accordingly also set aside the decision by the lower court, sentencing and convicting the 1st and 2nd accused persons as charged.
Although a retrial order usually poses its peculiar problems of starting de novo prosecution especially as regards the availability of witnesses etc, lam however constrained in the interest of justice to abide by this consequential order of retrial made in the judgment of my learner brother, in view of the fact that justice must be done and be seen to be done.
Appearances
Dr. Akin Onigbinde with T. Falola For Appellant
AND
J.A. Mumini, DPP, Kwara state For Respondent
