IDOWU OKANLAWON v. THE STATE
(2012)LCN/5483(CA)
In The Court of Appeal of Nigeria
On Friday, the 22nd day of June, 2012
CA/I/31A/2006
RATIO
CRIMINAL LAW AND PROCEDURE: CONTRADICTIONS THAT GO TO THE ROOT OF PROSECUTION’S CASE
As for contradictions in the prosecution witnesses’ evidence, the principles governing this have always been well explained. If a contradiction in the evidence of the prosecution goes to the root of the case, that is to say, the substance of the case, as to raise doubt in the mind of the court, the court should not convict.
It is clear that if there is contradiction in evidence as to a material fact, that then goes to the root of the prosecution’s case as to raise doubt the benefit of which must be given to the accused person. See Ejigbadero vs. State (1978) 9 & 10 SC 81; Nwosisi vs. State (1976) 6 SC 109. In the case where the contradictions are not as to material facts to the charge against the accused person such contradictions should not disturb the findings of guilt, if sufficient evidence has been led on the material facts to the charge. See Atano us. A.G. Bendel (1988) 2 NWLR (Pt. 75) 201 at 207, Kalu vs. State (1988) 4 NWLR (Pt.90) 503, Archibong vs. The State (2001) 1 NWLR (Pt. 855) 488 and Bolanle vs. State (2005) 7 NWLR (Pt. 925) 431.PER ADZIRA GANA MSHELIA, J.C.A
CRIMINAL LAW AND PROCEDURE: PROSECUTION HAS DISCRETION TO CALL AND TENDER EVIDENCE WHICH WILL ESTABLISH GUILT OF AN ACCUSED IN ITS CASE
As a rule of practice, the prosecution has discretion to call and tender any evidence which will establish the guilt of the accused in the prosecution of its case. The failure of the prosecution to call the said Alhaji from whose house the guns were stolen by the 4th accused is not fatal to the prosecution’s case. The prosecution was not duty bound to call the Alhaji to testify if it had other credible evidence to rely on. See Bolanle vs. State (2005) 7 NWLR (Pt. 925) 431 at 464 paras C-F, Ejiofor vs. The State (2006) 6 NSCQR (Pt.1) 209 at 237 and Hausa vs. State (1994) 6 NWLR (Pt. 350) 281 at 307 paras E-F. In Ejiofor v. State (Supra) 209 at 237 the apex court stated:
“The prosecutorial responsibility is to establish its case beyond reasonable doubt. How they get around achieving this is entirely their responsibility. Whether they field one, two or more witnesses in satisfaction of such proof will surely depend on the circumstances of each case. But under no circumstances will the accused person dictate to the prosecution regarding the person or the number of persons that they should field as witnesses.”
The contention of appellant’s counsel that Exhibit K the confessional statement of the appellant is a fabrication cannot be accepted as the truth bearing in mind other bits and pieces of evidence earlier highlighted which lend credence to the fact that the said Exhibit K was the confessional statement of the appellant.PER ADZIRA GANA MSHELIA, J.C.A.
JUSTICES
ADZIRA GANA MSHELIA Justice of The Court of Appeal of Nigeria
MODUPE FASANMI Justice of The Court of Appeal of Nigeria
JOSEPH SHAGBAOR IKYEGH Justice of The Court of Appeal of Nigeria
Between
IDOWU OKANLAWON Appellant(s)
AND
THE STATE Respondent(s)
ADZIRA GANA MSHELIA, J.C.A (Delivering the Leading Judgment): At the High Court of Ogun State, Abeokuta Judicial Division, the appellant as 2nd accused was charged with the following offences:
Count 1- That you, Lukman Olufeko (M), Idowu Okanlawon (M), Akeem Jimoh (M), Isikilu Olanipekun (M) and others now at large on or about the 18th day of August 2002 at Ewi’s compound, Oke-Efon area of Abeokuta in the Abeokuta Judicial Division conspired together to commit a felony to wit:
Armed Robbery contrary to section 5(b) and punishable under section 1(2)(a) of the Robbery and Firearms (Special provisions) Act (cap 398) Laws of the Federation of Nigeria, 1990 as amended by the Tribunals(Certain Consequential Amendments etc) Act, 1999.
Count II- That you, Lukman Olufeko (M), Idowu Okanlawon (M), Akeem Jimoh (M), Isikilu Olanipekun (M) and others now at large on or about the the day 18th day of August, 2002 at Ewi’s compound, Oke-Efon area of Abeokuta in the Abeokuta Judicial Division while armed with firearms to wit: guns and other offensive weapons did rob one Evangelist Oluseye Ogunremi of a Nokia mobile handset and Sagem mobile handset valued at N65000.00 and a cash of N80,000.00 and thereby committed an offence contrary to section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act (cap 398) Laws of the Federation of Nigeria, 1990 as amended by (Certain Consequential Amendments etc) Act, 1999.
They all pleaded not guilty to the two count charge and were tried, convicted and each sentenced to death, It is against this conviction and sentence that the 2nd accused person Idowu Okanlawon is appealing against. The case for the prosecution was that on the 18th day of August, 2002 the appellant, and three accused persons whose names are contained in the charge and others still at large armed with firearms to wit: Guns and other offensive weapons conspired together and robbed one Evangelist Seye Ogunremi (PW2) of a Nokia mobile handset and a Sagem mobile handset all valued at N65,000.00 and a cash sum of N80,000,00. Prosecution called 9(nine) witnesses in proof of its case. While appellant Idowu Okanlawon gave evidence on his own behalf. It was alleged by PW2 the complainant that in the course of the robbery operation, the 4th accused used an iron on his (PW2’s) head and asked him to lie down. The robbers were holding guns and cutlasses and after a search of his house, they left with N80,000.00 and two handsets a Nokia and Sagem. It is the prosecution’s case that one Bola Alausa an electronic repairer (PW1) was approached by the 1st accused person to look for a buyer or himself buy the handsets. 1st Accused neither knew the numbers of the handsets nor had a receipt of purchase of them and a request that they be sold for a mere N3,000.00 aroused PW1’s suspicion and in the course of operating the handsets PW2 answered revealing all the details of the armed robbery attack on him by the accused persons which eventually led to the arrest of the 1st accused who revealed the identities of the other accused persons including the appellant as his partners in crime on the day of the incident which led to the arrest, prosecution conviction and sentence of the 1st, 2nd, 3rd and 4th accused persons.
This appeal is with respect to the 2nd accused person only and will simply be referred to as the appellant.
The appellant filed a notice of appeal dated the 30th June, 2005.
Having sought and obtained leave of this court appellant filed an amended notice of appeal on 20/3/12 and same was deemed properly filed on 26/3/2012.The amended notice of appeal contained five grounds of appeal.
The appellant in his brief of argument dated 15/01/08 and filed on 16/01/08 but deemed properly filed on 20/11/08 formulated five issues for the determination of this court. The issues are:-
(i) Whether the learned trial Judge was right when he held that:-
“This case does not require an identification parade. The 2nd PW right from the beginning said he could recognize each of the accused persons because his light was on……” (See page 40 lines 36 to 37 of the Records).
(ii) Whether the learned trial Judge was right to have convicted on the alleged confessional statement of the Appellant without more.
(iii) Whether Exhibit K could be legally said to be the statement of the Appellant and therefore as his confession to the crime charged.
(iv) Whether the Appellant received a fair and just representation by his counsel who was an employee of the Ministry of Justice.
(v) Whether the Judgment of the court is against the weight of evidence.
The Respondent’s brief of argument contained one issue for the determination of this court which read as follows:-
“Having regard to the grounds of appeal the following issues arise for determination in this appeal. Whether from the totality of the evidence adduced at the trial, the prosecution had proved the charge as preferred against the appellant beyond reasonable doubt in accordance with section 138 of the Evidence Act (cap E14) Laws of the Federation of Nigeria, 2004.”
When the appeal came up for hearing on 18/4/12 appellant’s brief of argument filed on 16/1/08 and deemed properly filed on 20/11/08 as well as the reply brief dated 25/10/10 and filed on 27/10/10 were adopted and relied upon by Tunde Onakoya Esq who urged the court to allow the appeal. While Respondent’s brief filed on 23/9/09 but deemed properly filed on 21/10/10 was adopted by J. K. Omotosho Deputy Director Public Prosecution Ogun State Ministry of Justice who urged the court to dismiss the appeal.
I have examined the issues formulated by parties. I will adopt the issues formulated by the appellant in the determination of this appeal.
Issue 1 was distilled from ground 1 of the Notice of Appeal. The complaint of the appellant under this issue relates to his identification as one of the armed robbers that robbed PW2 on 18th August 2012.
While arguing this issue in the brief of argument Appellant’s counsel submitted that there is a burden on the prosecution by law to bring evidence of proper identification of the culprits for identification. It was submitted that the identity of the Appellant goes to the root of this action so that where his identity is in issue it becomes a fundamental requirement for that issue to be resolved, otherwise, the whole process will be a nullity. Reference was made to the testimony of PW2 and the submission is that PW2’s evidence did not satisfy the essential conditions of a proper identification as stated in Ikemson v. State (1989) 3 NWLR (pt.110) 472 paras G-H and page 479, P. 455 paragraph A. The position of Counsel is that PW2 based on his own testimony had a fleeting encounter with the armed robbers and considering the hour of the day he stated and the kind of threat and intimidation he faced, he could not have identified the appellant as one of the persons who attacked and robbed him. Relying on Ikemson vs. State (supra) 472 paras G-H and P.455 paras A, counsel contended that PW2 has not and did not satisfy the essential conditions of a proper identification. Counsel stated the essential conditions as set out by the supreme court in Ikemson’s case which requires identification parade thus:-
a) Where the victim did not know the accused before his first acquaintance with him is during the commission of the offence.
b) Where the victim was confronted with the accused for a very short time, and
c) Where the victim due to time and circumstance might not have had a good opportunity of observing the features of the accused.
It was argued that despite the fact that the essential conditions have not been satisfied, the Police failed to conduct identification parade. Relying on the dictum of Oputa JSC in Okosi vs. State (1989) 1 NWLR (Pt. 100) 642 at 665 paras D-E Counsel urged the court to hold that appellant was mistakenly identified by PW2 and the failure of the police to conduct identification parade had occasioned miscarriage of justice. That appellant should be discharged and acquitted on this ground.
The respondent’s reply to this issue is reflected in paragraphs 5.04 and 5.05 of its brief of argument. Respondent’s counsel submitted that the position of the law is very clear on the issue of identification parade. The question of whether an accused is properly identified as one who was a party to the commission of the criminal act is a question of fact to be considered by the trial court on the evidence adduced for that purpose. Reliance was placed on Ukpabi vs. State Vol. 2 C A C page 282 at 291 paragraph B. It was argued that identification parade is not sine qua non to conviction. See Ikemson v. The State (supra). Counsel submitted that the trial Judge found that identification was not necessary especially when the PW2 had at the first earliest opportunity stated in his extra Judicial evidence before the court that the accused and others were not masked and as such he could recognize them if seen. PW2 also gave the description of the cloth worn by the appellant and others on the day of the incident. PW2 Evangelists Oluseye Ogunremi’s uncontroverted evidence is to the effect that the appellant was one of a gang of four armed robbers who broke into his house on the 18th August, 2002. His evidence is that he could recognize the robbers not only because the room was lit but also more importantly that they were not even masked. Appellant’s counsel’s submission is that the failure on the part of the police to conduct an identification parade is fatal to the prosecution’s case. That is not necessarily always true as it is not in all instances that apprehended accused persons are subjected to an identification parade. In Ukpabi vs. The State (2004) 11 NWLR (Pt.884) 439 the Supreme Court stated that an identification parade is not a sine qua non to conviction of an accused person. See also, Ikemson v. The State (supra) 455; Abubakar Ibrahim v. The State (1991) 4 NWLR (Pt. 18b) 399 and Okosi vs. State (supra) 642. In Bolanle vs. State (2005) 7 NWLR (Pt. 925) 431 at 453 paras G-H per Adekeye J.C.A. (as she then was) stated thus:-
“It is however noteworthy that it is not in all criminal Cases that an identification parade is necessary. Where there is good and cogent evidence linking the accused person to the crime on the day of the incident a formal identification may be unnecessary. Furthermore where an accused person by his confession has identified himself there would be no need for any further identification parade.”
In the instant case PW2 recollects that the robbers wore no hood or mask just as the lights in the room were on. PW2 also told the police that he could identify the armed robbers if he saw them. The identification of the appellant and the bits and pieces of evidence adduced by the prosecution witnesses and the confessional statements of the other accused persons are harmoniously consistent with one another and give no room for doubt that the appellant was positively identified as one of the robbers on the 18th August, 2002 in PW2’s residence.PW2 even stated under cross-examination that they all dressed in two jeans and only the 1st accused had cap on. There was no question of mistaken identity as submitted by appellant’s counsel. The learned trial Judge was perfectly right to have dismissed the need for identification parade. Issue 1 is therefore resolved in favour of the respondent and against the appellant.
Issues 2 & 3 are covered by grounds 2 and 3 and same were argued together by the appellant. The complaint of the appellant is that he volunteered statement in Yoruba but same was recorded in English. Learned counsel submitted that appellant in his evidence in chief has vehemently denied making the statement exhibit ‘K’ credited to him in English language, It was submitted that a retraction of the confessional statement if indeed appellant made a confessional statement in the first place must pass through the litmus test highlighted in the case of Ubierhor vs. State (2005) 7 MJSC 168 – 189 para A-B. The contention of counsel is that appellant presented before the trial court facts which made a trial within a trial expedient for the court to establish and put to rest the voluntariness or otherwise of the said confessional statement and whether same was made in English or Yoruba language. Counsel submitted that the prosecution coerced and forcefully procured the confessional statement from the appellant. That the mode of obtaining the confessional statement is procedurally defective as such it should be rendered inadmissible though its admissibility was not objected to at the trial. That trial court ought to have subjected the confessional statement to a trial within a trial. See James v. Mid Motors SC 308/76 reported in the Digest of S.C. cases vol.2 by Chief Gani Fawehinmi at PP23-24. It was further submitted that the failure of the trial Judge to conduct trial within a trial had occasioned miscarriage of justice. That since the case against the appellant is based on the confessional statement, the charge must fail and appellant should be discharged and acquitted.
In reply respondent’s counsel submitted that there is a long line of Judicial authorities which establish that in Nigeria, a free and voluntary confession by a person if direct and positive, duly made and satisfactorily proved is sufficient to ground conviction. It is desirable to have outside the appellant’s confession to the police some evidence however slight of the circumstance which made it probable that the confession was true. See Emeka v. State (2004) 7 Criminal Appeal cases 55 paragraph D-E. Learned counsel submitted that the appellant’s confessional statement was admitted as Exhibit ‘K’ without objection by his counsel Miss A. O. Oluwole. See page 25 of the record. Counsel contended that it is only when the appellant’s counsel has objected that the appellant’s statement was not voluntarily taken or made, the trial Judge must order a trial within a trial. The position of the law is very clear on this issue. In the case of Olalekan v. The State (2004) 1 CAC Page 221 paragraph B-C the Supreme Court held: “It is trite law that when an accused person alleges that a confessional statement credited to him is not voluntary, objection must be raised to its admissibility when the statement is sought to be tendered in evidence and not after it had been admitted in evidence”. It was argued that in the instant case, neither the appellant nor his counsel objected to the admissibility of Exhibit ‘K’ at the trial court. That the appellant cannot on appeal challenge the admissibility, the voluntariness or otherwise of Exhibit ‘K’. That it is too, late for the appellant to contend that the statement was not voluntarily made or not made at all when he did not object at the trial.
Furthermore, Counsel submitted that the confessional statement of the appellant was corroborated by the evidence of PW2 who was able to recognize him because light was on and the appellant and his gang were not masked. It was further submitted that the statement of the 1st accused person at the trial court mentioned the name of the appellant that he participated in the armed robbery. Counsel contended that the testimony of the appellant at the trial court was an afterthought. It was argued if in truth the appellant did not make Exhibit ‘K’ as claimed by him he should have objected to the tendering of his statement at the trial in the lower court.
The position of the law as settled on the authorities is that an accused person can be convicted solely on his confessional statement. See the following cases, Nwachukwu v. The State (2007) 12 SCM 2 at 447 especially at 455, Ikemson v. State (1989) 3 NWLR (pt.110) 455 at 468 – 469, Gbadamosi v. State (1991) 6 NWLR (pt.196) 182 at 202 paragraph H and Akinge v. State (1988) 3 NWLR (Pt.85) 729.
The appellant’s confessional statement was admitted as Exhibit ‘K’ without the objection by the appellant or his counsel. Resort to the record of proceedings of the 18th March, 2005 at page 25 at the lower court when the appellant’s statement was sought to be tendered by PW9 Inspector Patrick Ujang shows that there was no objection by the appellant or his counsel to the tendering of the said statement and its admission in evidence. Reproduced from the record on that day is the following:-
“This is the statement of the accused sought to be tendered. No. Objection, Statement of 2nd accused person dated 3/09/2002 is admitted and marked Exhibit K.”
As rightly submitted by the respondent’s counsel the issue of trial within a trial would only arise where appellant’s counsel objected to the admissibility of the confessional statement on the ground that same was not voluntarily made by the appellant. The objection should be taken at the time the statement was being tendered before the trial court. Where an objection was not raised as in this case, there is no basis to order a trial within a trial.
As earlier stated a confessional statement proved to have been voluntarily made, and is positive and not equivocal, and amounts to an admission of guilt, may well suffice to ground a finding of guilt. The fact that the accused has retracted the confession may not necessarily make it inadmissible. See R vs. Itule (1961) All N.L.R. 462 at 465. But before a conviction can be properly founded on such retracted confession, it is desirable to have some evidence outside the confession which would make it probable that the confession was true. See Sule Iyanda Salawa v. The State (1971) NMLR 249, and Akinge vs. State (Supra) 746 Ozare Ubierho vs. State (Supra) Nsofor vs. State (2005) 4 WRN 29, 18 NWLR (Pt.905) 292 at 310-311, Ikemson v. State (1989) 3 NWLR (Pt. 110) 455 at 468-469 and Nwachukwu v. The State (Supra) at 447 especially at 955 and Shade v. State (2005) 1 NWLR (pt.218) 218. In Ozare Ubierho v. State (supra) the court enumerated the six tests as follows:-
1. Is there anything outside the confessional statement to show that it is true?
2. Is it corroborated?
3. Are the relevant statements of facts made in it most likely to be true as far as they can be tested?
4. Is his confession Possible?
5. Is it consistent with other facts which have been ascertained and which have been proved?
I find it necessary at this stage to examine the alleged confessional statement of the appellant Exhibit ‘K’, compare them with other bits and pieces of evidence adduced and see how they fit into these outlined six tests. The appellant stated in his confessional statement Exhibit ‘K’ that on 18/08/02 they robbed three houses and that they went with two guns and machets. Appellant said they collected two GSM phone and N80,000.00. Appellant also admitted being in company of the other co-accused persons. It was in this same operation that the two mobile handsets a Nokia and Sagem were recovered. That is the evidence of PW4 Inspector Titus Ogbonna of the State CID Eleweran Abeokuta, anti-robbery section. The gang in which the appellant was part of was armed with gun and cutlass. PW2 recognized the appellant and his co-armed robbers because they were not masked and his light was put on as he normally does while in bed. The robbers searched his house and took away the sum of N80,000 and two mobile handsets – a Nokia and a Sagem. PW1’s evidence is as to how the 1st accused brought two handsets to him a Nokia and a Sagem to buy or help him sell and how he was able to operate a set and link up with PW2 the owner of the mobile sets. The handsets were taken to PW1 on the 19th August, 2002 the next day after the robbery operation on PW2.1st accused in his statement gave the name of the appellant as one of his armed robbery gang. When this bits and pieces of evidence obtained from the witnesses and the confessional statements of other accused persons are assembled and analysed, they tell a consistent and harmonious story that the confessional statement of the appellant was indeed what happened on the 18th August, 2002 when PW2 was robbed.
As regards the six tests earlier highlighted, there is a lot outside the confessional statement of the appellant to attest to its veracity as borne out by the evidence of other witnesses and the confessional statements of the other accused persons which statements are corroborative of the confessional statement of the appellant. That the appellant had the opportunity to commit the crime is not in doubt being armed and in the company of his partners in crime. That appellant’s confessional statement is consistent with other facts which have been ascertained and proved is not in doubt. The other accused persons had fingered him as one of their own. It is in evidence that the Nokia and Sagem handsets removed from PW2’s house were recovered from 1st accused who attempted to sell them to PW1. It is clear from the evidence adduced that the learned trial Judge did not convict the appellant solely on his confessional statement but relied on other pieces of evidence adduced by the prosecution witnesses. The fact that the appellant retracted his confessional statement when he testified in his defence at the trial would not render the said statement inadmissible. I will therefore resolve issues 2 & 3 in favour of the respondent and against the appellant.
Issue 4 is whether the appellant received a fair hearing and just representation by counsel who was an employee of the Ministry of Justice, Ogun State.
Before I determine this issue on merit I would first of all resolve the point raised by respondent’s counsel in the brief of argument which appears to be an objection to the competence of appellant’s ground 4 and issue 4 distilled there from. The contention of Respondent’s counsel is that appellant by that issue is challenging the competence of the counsel that represented the appellant at the trial court. Counsel argued that the issue of legal representation was not raised at the court below and there is nothing on record to show that leave was sought and obtained by the appellant. Being fresh issue appellant ought to have sought leave of this court. Reliance was placed on Olayinka Adefolaku vs. The State (2009) vol. 13 WRN Page 51 at 71 lines 30-49 wherein the court held that “a fresh point not taken in the lower court is incompetent unless prior leave is obtained. The only exception being when it concerns an issue of Jurisdiction.”
Appellant’s counsel responded in the reply brief that the requirement to obtain leave is misleading as the fair hearing principle is one of the exceptions to this rule. See Ndukauba vs. Kolomo (2005) 2 MJSC 10 paragraph D-E where the apex court held:
“A denial of fair hearing is a serious matter which justifies a departure from the established procedural rule that an issue not agitated in the Court of Appeal would be raised in the Supreme Court.”
In essence the issue of fair hearing does not require the appellant to seek leave of this court, counsel argued.
A fair trial is fair hearing. A fair trial of a case consists of the whole hearing. See Mohammed v. Kano N.A (1968) 1 All NLR 424 at 426 lines 10-15. No leave is therefore required to raise the issue of fair hearing. In Ndukauba v. Kolomo (2005) 4 NWLR (pt. 915) 411 at 428 the apex court per Oguntade J.S.C state:
“In the appeal before the Court of Appeal, the appellant did not raise the question of fair hearing as he has now done before us. This court has however elected to consider the point because the denial of fair hearing is considered a serious matter justifying a departure from established procedural rule that a matter not agitated before the court below could not be raised before this court.”
Parties have in their briefs dealt with this issue as such I find it appropriate to consider the point raised. The submission of learned counsel that appellant requires no leave before raising the complaint under issue 4 is therefore in order, I hold that ground 4 and issue 4 are competent.
I now consider issue 4 on merit. The complaint of the appellant is that the office of the Public defender and the Ministry of Justice of Ogun State that prosecuted the appellant are fused together.
Appellant accused the Public Defender of compromising the case at the court below. He alleged that he was denied fair hearing. It was argued that appellant could have been represented by counsel from legal Aid Department or the Nigerian Bar Association who also provides Pro Bono Services in respect of impecunious accused person especially capital offence. It was further argued that the representation of the appellant by counsel from Ministry of Justice creates a likelihood of bias. Counsel referred to the case of Menekenom v. Tekam (2001) 9 MJSC 114 at 132 paras D-G wherein the Supreme Court distinguished between procedural unfairness and substantive unfairness of a trial. The contention of the Appellant is that the Ministry of Justice of Ogun State not only prosecuted the Appellants, but also acted as the Defence counsel.
Counsel submitted that the law attaches great importance to the rule of fair hearing. The effect of the breach of the rule of audi alteram parterm or of fair hearing is to render the hearing liable to be set aside or declared invalid by the court. See Ndukauba v. Kolomo (supra) at 438 paras E-F. Counsel urged the court to treat the situation as if such a hearing never took place.
Respondent’s counsel in reply submitted that counsel who represented the appellant at the trial court was from the citizens right Department. That the Department is a separate department established by the Ogun State Government for the purpose of assisting indigent people in the society. They offer free services to inmates who would not afford services of private legal practitioner.
That it was appellant who applied for legal representation to the citizens right Department in compliance with section 36 (6) (c) of the constitution of the Federal Republic of Nigeria, 1999 which enjoins every person who is charged with a criminal offence to defend himself in person or by legal practitioner of his own choice. It was argued that there is nothing on record to show that the counsel that represented the appellant at the trial court did not perform their duties diligently. That a counsel has unlimited right and discretion to decide the manner his client’s case would be conducted, including whether or not to object to tendering any document or cross examine a witness. See Alor v. The State (1996) 4 NWLR (pt.445) 726 at 738. That appellant engaged the services of a counsel on his own volition at the trial court.
There is nothing on record to substantiate the allegation of bias levelled against the counsel that represented the appellant at the trial court. According to respondent’s counsel it was the appellant who applied for assistance from the Citizens Right Department as such he cannot be heard to complain that he was not represented by a counsel of his choice. Appellant did not also substantiate the allegation that both Public defender and Ministry of Justice are fused. There is also no evidence to show that the counsel who represented the appellant at the lower court did not show diligence in the performance of his duty. The mere fact that counsel representing the appellant failed to object to the tendering of appellant’s statement is not sufficient to conclude that he was biased or that he compromised the case. A counsel has a discretion to decide the manner his client’s case would be conducted. See Alor vs. State (1996) 4 NWLR (pt.445) 726 at 738. I am therefore of the humble view that appellant failed to substantiate the allegation of want of competence as regards the legal representation and denial of fair hearing. I will therefore resolve issue 4 against the appellant.
The fifth issue is whether the Judgment of the trial court is against the weight of evidence. Appellant’s counsel contended in the brief of argument that a careful perusal and thorough combing of the evidence beginning from the period of investigation, the taking down of the alleged confessional statement, the evidence of the various witnesses, the role played by counsel, especially those allegedly representing the 2nd and 3rd accused persons at the trial, the misdirection of the learned trial Judge all point to just one thing, namely that the evidence before the court cannot support a conviction of guilty against the appellant. Learned counsel expressed surprise as to how a case that was reported to the police as one of burglary and stealing suddenly graduated into a case of robbery. Learned counsel also referred to what he considered as contradictions in the evidence of the prosecution witnesses as to the time when the armed robbery was reported to the police. PW2 said it was on the 18th August 2002, while PW7 said it was on the 28th August, 2002. Counsel was also of the view that one Alhaji the owner of the two stolen guns used by the accused persons was a material witness but the prosecution failed to call him to shed more light on the true state of events. Counsel also referred to the confessional statement of the appellant as a complete fabrication. Counsel submitted that on the whole, the prosecution did not discharge the burden placed on them by law of proving the culpability of the appellant beyond reasonable doubt and urged the court to so hold.
Respondent’s counsel in reply submitted that the prosecution had proved the ingredients of the offence to establish the guilt of the appellant. Reliance was placed on OHi vs. The State (1991) 8 NWLR (Pt.207) 103 at 118. Counsel submitted that there is overwhelming evidence that:
(i) There was a robbery incident at PW2’s house on the 18th day of August, 2002.
(ii) That the said robbery was an armed robbery.
(iii) That the Appellant took part in the said armed robbery.
Learned counsel further submitted that there are three ways of proving the guilt of an accused person. They are:
(a) Eye witness account
(b) Confessional statement
(c) Circumstantial evidence
See Emeka v. The State (2004) 1 Cr. Appeal Cases Page 55 Paragraphs E-F.
It was further contended that the evidence adduced by the prosecution against the appellant consisted of eye witness account and confessional statement. See the evidence of PW1, PW2 and PW3 on record.
As for contradictions in the prosecution witnesses’ evidence, the principles governing this have always been well explained. If a contradiction in the evidence of the prosecution goes to the root of the case, that is to say, the substance of the case, as to raise doubt in the mind of the court, the court should not convict.
It is clear that if there is contradiction in evidence as to a material fact, that then goes to the root of the prosecution’s case as to raise doubt the benefit of which must be given to the accused person. See Ejigbadero vs. State (1978) 9 & 10 SC 81; Nwosisi vs. State (1976) 6 SC 109. In the case where the contradictions are not as to material facts to the charge against the accused person such contradictions should not disturb the findings of guilt, if sufficient evidence has been led on the material facts to the charge. See Atano us. A.G. Bendel (1988) 2 NWLR (Pt. 75) 201 at 207, Kalu vs. State (1988) 4 NWLR (Pt.90) 503, Archibong vs. The State (2001) 1 NWLR (Pt. 855) 488 and Bolanle vs. State (2005) 7 NWLR (Pt. 925) 431.The contradiction as regards to the time the armed robbery was reported to the police in my humble view is not material. What is important is that there was robbery and a report of the robbery was made to the police so soon thereafter. As to the quantity and quality of the evidence led by the prosecution to establish its case, this does not lie with the defence. As a rule of
practice, the prosecution has discretion to call and tender any evidence which will establish the guilt of the accused in the prosecution of its case. The failure of the prosecution to call the said Alhaji from whose house the guns were stolen by the 4th accused is not fatal to the prosecution’s case. The prosecution was not duty bound to call the Alhaji to testify if it had other credible evidence to rely on. See Bolanle vs. State (2005) 7 NWLR (Pt. 925) 431 at 464 paras C-F, Ejiofor vs. The State (2006) 6 NSCQR (Pt.1) 209 at 237 and Hausa vs. State (1994) 6 NWLR (Pt. 350) 281 at 307 paras E-F. In Ejiofor v. State (Supra) 209 at 237 the apex court stated:
“The prosecutorial responsibility is to establish its case beyond reasonable doubt. How they get around achieving this is entirely their responsibility. Whether they field one, two or more witnesses in satisfaction of such proof will surely depend on the circumstances of each case. But under no circumstances will the accused person dictate to the prosecution regarding the person or the number of persons that they should field as witnesses.”
The contention of appellant’s counsel that Exhibit K the confessional statement of the appellant is a fabrication cannot be accepted as the truth bearing in mind other bits and pieces of evidence earlier highlighted which lend credence to the fact that the said Exhibit K was the confessional statement of the appellant.
The evidence adduced by the prosecution against the appellant clearly consisted of eye witness account and confessional statement.
The testimonies of PW1, PW2, PW3 and the confessional statement Exhibit ‘K’ are relevant. The learned trial Judge was satisfied that the evidence before him has proved the ingredients of the offence and was sufficient to establish the guilt of the accused (appellant). Contrary to the submission of appellant’s counsel the learned trial Judge properly evaluated the evidence adduced before finding the appellant guilty of the offence charged. It is pertinent at this stage to note the finding of the learned trial Judge appearing at page 40 of the record lines 24-36 and page 41 lines 1-7 and 22-26.
He had this to say:-
“I hold that in this case there was robbery and that the robbers were armed on the day of the robbery. The evidence of the 1st PW to me is that of a good citizen. After suspecting the genuineness of the source of the two handsets, reported the matter to the police hence the beginning of the case. There is no doubt that the 2nd PW was robbed and that his two handsets were found with the 1st accused person who after interrogation mentioned the names of the 1st, 2nd and 3rd accused persons though each of the accused persons in their defence denied knowing each other having been arrested on various spurious charges. The learned defence counsel all of them dwell so much on the issue of identification and they all agreed that the failure to conduct an identification parade is fatal to the Case of the prosecution. They relied on the Case of Ojukwu v. The State I agree with them to the extent that it will be fatal to the prosecution’s case only when identification is in issue. This case does not require identification parade. The 2nd PW right from the beginning said he could recognize each of the accused person because his light was on and under cross-examination he gave detail action taken by each of the accused person and the dress worn by each of the accused person. It should not be forgotten that it was the accused persons who took the police to where the guns were recovered and at the scene of the crime the accused persons described to the police the strategic position taken by each one of them therefore putting themselves to the scene and fixing themselves to the crime in question. The accused persons denied but they confessed in their statements admitted as Exhibits. They did not however deny other actions taken by them connecting them to this crime… The totality of this evidence in my view is that all the accused persons made confessional statements and I accept the confessional statements as true. Their denial notwithstanding having regard to other facts emanating from the accused persons and the circumstances of the case.”
The findings of the learned trial Judge cannot be faulted based on the available evidence adduced before him by the prosecution.
From the totality of the evidence adduced I am of the humble view that prosecution proved the essential ingredients of the offences charged beyond reasonable doubt. The Learned trial Judge was justified to have convicted the appellant for the offences of conspiracy and armed robbery. I have no reason to disturb the findings of the learned trial Judge as same are not erroneous or perverse.
This appeal is devoid of merit and same fails. It is accordingly dismissed. The Judgment of G.O. Shoremi, J, (as he then was) delivered on the 21st June, 2005 in charge No AB/14R/2003 is hereby affirmed as it affects the appellant Idowu Okanlawon.
MODUPE FASANMI, J.C.A: I am in agreement with the judgment prepared by my learned brother Mshelia J. C. A., which I had the privilege of reading in advance.
The appeal lacks merit and it is accordingly dismissed by me.
I abide by the consequential order contained therein.
JOSEPH SHAGBAOR IKYEGH, J.C.A.: I am in complete agreement with the judgment just pronounced by my learned brother, Mshelia, J.C.A., which I had the honour of reading in advance and most respectfully add by way of emphasis that the accusation that the public Defender compromised the case at the court below was not substantiated by the appellant, nor did the appellant establish satisfactorily that the office of public Defender and the Ministry of Justice of Ogun State that prosecuted the appellant are fused together, consequently the allegations of incompetence and bias made against the Public Defender and lack of fair hearing are not justified.
Rather the case against the appellant was insurmountable in light of his confession of the crime of conspiracy and armed robbery and the discovery of the robbed items with him a couple of days after the robbery which sufficiently nailed the appellant to the offences charged and obviated the necessity for an identification parade to fish out the culprit vide Eze v. State (1985) 12 SC. 4, Salami v. State (1988) 3 NWLR (pt.85) 671, Madagwa v. State (1988) 5 NWLR (pt.92) 60 at 84-85.
It is for these reasons and the more comprehensive reasons given in the lead judgment of my learned brother, Mshelia, J.C.A., that I too see no substance in the appeal and hereby dismiss it and affirm the conviction and sentence of the appellant by the court below.
Appearances
Tunde OnakoyaFor Appellant
AND
J.K. Omotosho DDPP (Deputy Director Public Prosecution Ministry of Justice Ogun State with W.A. Onawole State Counsel for Respondent.For Respondent
