KAYODE BABARINDE & ORS. v. THE STATE
(2012)LCN/5170(CA)
In The Court of Appeal of Nigeria
On Thursday, the 23rd day of February, 2012
CA/IL/C.18/2010
RATIO
CRIMINAL LAW: WHETHER THE NON-CONFORMITY OF THE CONFESSIONAL STATEMENT WITH THE USUAL CAUTIONARY WORDS MAKES IT INADMISSIBLE
On the premise of facts differentials, therefore, I will decline to employ the principle enunciated in that case, Namsoh’s, to the instant case at least not in the glaring absence of infraction of the stipulation in Order 6 of the Rules. At any rate, I have my doubts if the provisions of those Rules, offshoots of Judges’ Rules, are mandatory at all cost as pressed upon by the learned counsel for the appellants. To bear me out in my doubts, I will take parties through some judicial authorities on this critical point. In the case of Ojegele vs. The State (1988) NSCC 276 at 282, Oputa, JSC, lucidly said of the Judges’ Rules, the forerunners or forefears of the Rules, that: Nobody, however, disputes the wisdom behind those Rules. But having said that, it is necessary to add that they are Rules of administrative practice. They are rules made for the mere efficient and effective administration of Justice and therefore should never be used to defeat Justice. Even in England the Court of Appeal felt bound to observe that the court must take care not to deprive themselves by new artificial rules of practice of the best enhances of learning the truth…. The aim of the Judges Rules is to ensure that confessions are voluntary. That practice should never be stretched too far, for the protection of guilt. In the case of Nwaebonyi v. State (1992) 5 NWLR (Pt.244) 698, it was held that the fact that a confessional statement did not contain the usual cautionary words, as required by the Judges’ Rules, orders 3, 4 and 5 of the Rules, was not enough reason not to admit it in evidence. Also, see Nwigboke V.R. (1959) 4 FSC 26 08 (1959) SCNLR 248. Recently, in the case of Igago v. State (2001) 2 ACLR 104 at 120, Karibi-Whte, JSC, opined: Learned counsel to Applicant has referred to the breach by PW5, 6 and 7 of the Judges’ Rules in the manner the statements were recorded. There is no evidence that the statements were in breach of the rules, as counsel did not refer to evidence of any breach. However, there is evidence that the statements Exhibits “A” and “B” were taken down after the usual caution had been administered. In any event there are rules of caution the non-observance of which is not necessarily fatal to the admissibility of the statement – see Uche vs. Queen (1964) 1 ALL NLR 195. It flows or stems from these ex cathedra authorities, particularly Igago’s case, which is latter in time to Namsoh’s case, that non-conformity which the Rules is not at all times inimical to the admissibility of pre-trial statements to the police. Being rules of procedure, albeit criminal procedure, where their strict observance is in collusion course with the need to do justice, a court of law will bend towards dispensation of justice, especially if the former will be “for the protection of guilt”. PER. OBANDE OGBUINYA, J.C.A.
CONFESSIONAL STATEMENTS: ON WHOM LIES THE BURDEN TO PROVE THE PRE-TRIAL CONFESSIONS OR STATEMENTS OF AN ACCUSED PERSON
In law, it is incumbent on the prosecution to establish that pre-trial confessions or statements are made voluntarily in any trial within trial proceeding, see Gbadamosi v. The State (1992) 11/12 SCNJ 209, Eke v. State (2011) 3 NWLR (pt.1235) 589. Those pieces of evidence, proffered by the prosecution/respondent in that proceeding, were not successfully challenged under cross-examination in the lower court. But, I hasten to add that they were clearly controverted by the defence as shall be seen anon. The law compels the appellants to puncture the unchallenged evidence of the prosecution/respondent by demonstrating that their statements were products of involuntariness, see Nwangbomu vs. The State (1994) 2 SCNJ 107. PER. OBANDE OGBUINYA, J.C.A.
ON THE DIFFERENCES BETWEEN THE TWO WORDS ‘ UNCHALLENGED AND UNCONTROVERTED EVIDENCE’.
That, is not all. The unchallenged evidence of the respondent were properly and adequately controverted by those of the appellants. This brings me to the wide chasm between unchallenged and uncontroverted evidence. Although the two expressions have the same overall effect that a challenged or controverted evidence does not attract any judicial weight and credibility, they are far from being coterminous. The former arises during cross-examination of witnesses whereas the latter occurs during the defence of the adversary. The dichotomy between the two symmetrical expressions was brought to the limelight in the case of Oforlete v. State (2000) 3 NSCQR 243 at 261 or (2000) 12 NWLR (pt.681) 415 at 440 when Ayoola, JSC, succinctly observed: However, it does appear to me that a distinction had always been drawn in the manner in which evidence is challenged or controverted. “Unchallenged” and “uncontroverted” have mostly been used as meaning the same thing. See, for instance, Egwunike vs. ACB Ltd. (1995) 2 NWLR (pt.357) 34 SC. In a strict sense “unchallenged” and “uncontroverted” may not mean the same thing. To challenge is to object or except to something or to put it in dispute or render doubtful. To controvert is to dispute or deny oppose or contest. (For both definitions see Blacks law Dictionary 6th edition). Challenging a witness is more appropriate in cross-examination while controvesting his evidence is more appropriate in leading contrary evidence. Notwithstanding the distinction in most cases the consequence would be the same whether evidence as unchallenged or whether it is uncontroverted. Whether evidence is challenged and rendered doubtful or without weight by class-examination, the fact that it is not controverted by contrary evidence will not render it cogent or weighty. On the other hand, the fact that contrary evidence has not been adduced to controvert the evidence of a witness on a particular matter weakens and suggestion that that evidence is not true. PER. OBANDE OGBUINYA, J.C.A.
THE LEGAL CONSEQUENCE OF OBTAINING EXTRA-JUDICIAL STATEMENTS BY THE POLICE
What then is the legal consequence of that untoward mode of obtaining extra-judicial statements by the police? The answer is embedded in the provision of Section 29 (2) (3) and (5) of the Evidence Act, 2011 (the erstwhile section 28 of the defunct Evidence Act, 2004) which provides:
29 (2) If in any proceedings where the prosecution proposes to give in evidence a confession made by a defendant, it is represented to the court that the confession was or may have been obtained-
(A) by oppression of the person who made it, or
(B) in consequence of anything said or done which was likely, in the circumstances existing at the time, to tender unreliable any confession which might be made by him in such consequence the court should not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained in manner contrary to the provisions of this section.
(3) In any proceedings where the prosecution proposes to give in evidence a confession made by a defendant, the court may if its own motion require the prosecution, as a condition of allowing it to do so, to prove that the confession was not obtained as mentioned in either paragraph (a) or (b) of subsection (2) of this section”
(5) In this section “oppression” includes torture, in human or degrading treatment, and the use or threat of violence whether or not amounting to torture. PER. OBANDE OGBUINYA, J.C.A.
THE POSITION OF THE LAW WHERE A FINDING OR DECISION IS PERVERSE
A finding or decision is perverse when it runs counter to the evidence; when a court takes extraneous matter into account to shuts its eyes to the obvious or when it occasions miscarriage of justice, the last being such departure from the rules which permeate all judicial process as to make what happened not in the proper sense of the word judicial procedure at all, see Ahmed v. State (supra); State v. Ajie (2000) 3 NSCQR 53; Abeke v. State (2007) 9 NWLR (Pt.1040) 411. A ratio decidendi is the reason for a decision, the principle of law upon which a court’s decision is based. A ratio decidendi is diametrically opposed to Obiter dictum which is something said in passing, & judicial comment made by a judex in the course or process of delivering judgment, but not necessary to the decision. Thus, it can be garnered, from the above explanations, that the two statements qualify as obiter dicta. The ratio decidendi in that proceeding was the admission of the appellants’ pre-trial statements to the police, as exhibits 4, 5 and 6, on the ground that they were voluntarily made. PER. OBANDE OGBUINYA, J.C.A.
THE POSITION OF THE LAW ON ROBBERY AND SECURING A CONVICTION FOR THE OFFENCE OF ARMED ROBBERY
By virtue of the prescription of section 11, the interpretation clause, of the Robbery and Firearms (Special Provision) Act, Cap, R 11, Laws of the Federation of Nigeria, 2004 (hereunder abridged to “the Act”), “robbery” means stealing anything and, at, or immediately before or after the time of staling it, using or threatening to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained.” where the robbery is accompanied by the use of firearm or offensive weapon which causes or attempts to cause any person’s death or hurt or unlawful restrant or fear, it metamorphoses into armed robbery, see Ebeinwe vs. State (supra); The State vs. Yamusissika (1974) 6 SC 63 at 62. To secure a conviction for the offence of armed robbery, the prosecution, the respondent herein, is required to prove, beyond reasonable doubt, that: there was robbery or series of robberies; each robbery was an armed robbery and the accused was one of those who took part in the armed robbery. Each of the three ingredients must be proved beyond reasonable doubt, see Bozin v. State (supra); Eke v. State (supra); Afolalu v. State (supra); Nwaturocha v. State (2011) 6 NWLR (pt.1242) 170; Abdullahi v. State (supra); Attah v. State (2010) 10 NWLR (pt.1201) 190. PER. OBANDE OGBUINYA, J.C.A.
JUSTICES
IGNATIUS IGWE AGUBA Justice of The Court of Appeal of Nigeria
IGWE GEORGE MBABA Justice of The Court of Appeal of Nigeria
OBANDE OGBUINYA Justice of The Court of Appeal of Nigeria
Between
1. KAYODE BABARINDE
2. AKEEM HARUNA
3. YUSUF NURUDEEN Appellant(s)
AND
THE STATE Respondent(s)
OBANDE OGBUINYA, J.C.A. (Delivering the Leading Judgment): This appeal sprang from the judgment of the Kwara state High Court, corm, Hon. Justice I. R. Garba, delivered on 29/09/2009 in which the appellants were convicted of criminal conspiracy and armed robbery.
Flowing from the processes filed, the facts of that case, leading to this appeal, are not complex. The respondent alleged that the three appellants, while armed with a locally made pistol, 18/08/2007, attacked and robbed one Mrs. Ruth Alabi, the complainant, of the sum of N50,000 at Baba Oloya Area, Jebba in Moro local Government Area of Kwara State. After the robbery attack, the victim, Mrs. Ruth Alabi, raised alarm which attracted her husband and her grown-up son who pursued them. The first appellant was arrested on the same day and his arrest led, to the arrest of the second and third appellants the following day. The police, who arrested them, took them to Jebba Police station whence they were later transferred to the Special Anti- Robbery squad (SARS), at the police Headquarters, Ilorin, Kwara State. The police, via the special Anti-Robbery Squad (SARS) team, later arraigned the appellants in the High Court of Kwara State on a two-count charge of criminal conspiracy and armed robbery contrary to section 97 of the Penal Code and section 1(2) of the Robbery and Fire Arms (Special Provisions) Act, Cap. R 11 Laws of the Federation of Nigeria, 2004 respectively. The appellants took their plea on 06/03/2008 and each of them pleaded not guilty to the two counts of the charge. Sequel to that not guilty plea, the case went into a full-scale trial in which the prosecution fielded three witnesses, PW1 – PW3, and tendered eight (8) exhibits, exhibits 1-7A. On the appellants’ part, each of them gave evidence in his defence without calling any other witness. Each of them denied committing the alleged offences.
In the course of the PW1 giving evidence, in examination-in-chief, the respondent sought to tender the extra judicial statements made by the appellants to the police in evidence. The appellants raised objection to their voluntariness which led the lower court to conduct trial within trial over their voluntariness or otherwise called two witnesses, PW1 and PW2, while each of the appellants gave evidence in rebuttal without calling any other witnesses.
After the addresses of counsel for the prosecution and the defence in that proceeding, the lower court, in considered rulings delivered, on 30/07/2008 and 29/01/2009, on pages 64-72 and 86-92 respectively, overruled, the objections. It, consequently, admitted the confessional statements of the second, third, and, first appellants as exhibits 4, 5 and 6 respectively.
Thereafter, the lower court concluded the evidence of prosecution and defence witnesses and took the written addresses of their learned counsel. On 29/09/2009, it delivered its 17 – page judgment, contained on pages 108 – 125 of the printed record, wherein it found the appellants guilty of the two offences, convicted them of same and sentenced them thus: “For the charge of criminal conspiracy, each of the convicts is sentenced to 2 years imprisonment.
On the charge of armed robbery, each of the convicts is sentenced to death by hanging until pronounced dead. There is right of appeal available to the convicts as allowed by law”.
In consonance with the law, the appellants lodged three separate notices of appeal on 05/11/2009, located on pages 126-181 of the printed record of appeal. Subsequently, precisely on 23/11/2011, this court, on the behest of the appellants, granted them leave to amend their different notices of appeal, each of which hosted six grounds of appeal and deemed them as properly filed and served on the respondent on that date, 23/11/2010.
As required by law, parties, via their learned counsel, filed and exchanged their briefs of argument in this appeal. The appeal was heard on 05/12/2011. On that day 05/12/2011, the learned appellants’ Counsel, Ikenna Okoli, Esq., adopted the appellants’ brief of argument filed on 14/01/2011, but deemed filed on 13/04/2011, as representing his arguments in support of the appeal. He urged the court to allow the appeal. Similarly, on that date, 05/12/2011, the learned respondent’s counsel, J.A. Mumini, Esq., adopted the respondent’s brief of argument filed on 24/06/2011, but deemed filed on 26/10/2011, as representing his submissions against the appeal which he prayed the court to dismiss.
In their brief of argument, the appellants crafted three issues for determination of the appeal as follows:
(i) Whether the trial court was right in admitting in evidence Exhibits 4, 5 and 6 (alleged) confessional statements of the appellants) and/or attaching any or much weight to the said Exhibits 4, 5 and 6 and convicting the appellants based on the said Exhibit 4, 5 and 6?
(ii) Whether the trial court had not presumed the appellants guilty before trial thereby occasioning a miscarriage of justice?
(iii) Whether the prosecution proved the offences of criminal conspiracy and armed robbery against the appellants beyond reasonable doubt?
Exultantly, the respondent adopted those three issues for determination of the appeal as formulated by the appellants.
ARGUMENTS ON ISSUES
On issue one, learned counsel for the appellants drew the court’s attention to the testimonies of the appellants on pages 57, 59 and 80 of the record to the effect that they did not make exhibits 4, 5 and 6 voluntarily rather they were written by the police at the Special Anti-Robbery Squad (SARS) office and given to them to sign after they had been mercilessly beaten and tortured. Learned counsel then submitted that a statement to the police would be deemed confessional and voluntary if it was voluntarily narrated by the maker and not procured as a result of questions from the police to an accused. He insisted that exhibits 4, 5 and 6 were procured from a question and answer session between the police and the appellants contrary to the procedure (Statement to the Police Officers) Rules, Cap C 23, Laws of Kwara State, 2007. He relied on the case of Namsoh vs. State (1993) 5 NWLR (pt. 292) (129 at 144 and the contents of exhibits of 4, 5 and 6.
He further submitted that exhibits 4, 5 and 6 which were recorded separately and which each separately implicated the appellants were not given to them by the police as required by law under Order 7 (1) of the Criminal Procedure (Statements to Police Officers) Rules, Cap C23, Laws of Kwara State, 2007. He added that the police failure to follow the procedure laid down by that Order 7 (1) of the above Rules was fatal and that the lower court should have rejected exhibits 4, 5 and 6 in line with the Provisions of the Order 9 of the Rules.
Learned, Counsel intimated the court that the second and third appellants did not understand English Language and took the view that their statements, exhibits 4 and 5 respectively, were wrongly written in English Language and the same rendered unreliable. He placed reliance on the cases of. Ahmed v. State (1999) 7 NWLR (Pt.612) 641 at 685 and Ajidahun v. State (1991) 9 NWLR (pt.213) 33 at 41. He stated that the statements, though made in Yoruba language, were not recorded in that language and so their Yoruba versions were not tendered in evidence so that the lower court should not have placed reliance on them. It was learned appellants’ counsel’s further submission that the lower court overlooked or did not properly evaluate the evidence of torture, meted out to the appellants by the police at the Special Anti-Robbery Squad (SARS) office, given by them during the trial within trial proceedings. He noted that it was a notorious fact that the Nigeria Police routinely use torture to extract confessional statements from persons accused of armed robbery, citing Human Rights Watch Report of August, 2010 on Nigerian Police on page 42. He posited that, a confession induced by threat was inadmissible and cited the case of Ozarki vs. State (1990) NWLR (pt. 124) 92 at 112. He concluded that the lower court was wrong to have admitted and used exhibits 4, 5 and 6 in convicting the appellants. He urged the court to resolve the issue in favour of the appellants.
On the contrary, learned respondent’s counsel, on that issue one, maintained that the lower court was right to have admitted exhibits 4, 5 and 6 and relied on them in its judgments since they were confessional statements made by the appellants to the police after their arrest. He contended that there was nothing on record that those statements, exhibits 4, 5 and 6, were products of questions and answers session as prohibited by ‘the Provision of Order 7 (1) of the Rules. He noted that the prosecution witnesses, PW1 and PW2, during the trial within trial proceedings gave narrations of how the statements were taken and there was nowhere it could be deduced that questions were asked and answers supplied. He called the court’s attention to the finding of the lower court, on page 71 of the record, that the statements were not products of selected questions from the police to make the case of Namsoh vs. State (supra) applicable and urged the court to uphold that finding Learned Counsel further contended that the issue of the failure of the investigating police officers showing the appellants’ statement to each other, contrary to the provision of section 7 (1) of the Rules, did not arise from the proceedings in the lower court as there was nothing on the record to substantiate that point. He stated the law that grounds upon which issues would be formulated must arise from the proceedings before a trial court and cited the case of Awoniyi vs. Council of Yaba College of Technology (2006) All FWLR (pt. 500) 1675 at 1655 in support.
He took the view that the failure to record exhibits 4 And 5 in Yoruba Language did not make them inadmissible.
He relied on the finding of the lower court, the record, in which it relied on the case of Udo v. Police (1964) 1 ALL NMLR 21 on the point.
Learned Counsel disagreed that the lower court did not consider the allegation of torture raised by the appellants in the trial within trial proceedings. He referred to the findings of the lower court as contained on pages 69-71 of the record and persisted that they were unassailable hence the appellants could not fault them in their brief of arguments.
It was his further contention that direct and positive confessional statement was enough to sustain conviction notwithstanding their retraction by an accused person. In support of that he cited the case of Alarape vs. The State (2001) FWLR (Pt.41) 1893. He added that there were sufficient corroborative evidence, from the prosecution witnesses, to give value to exhibits 4, 5 and 6 and given the facts that the appellants had the opportunity to commit the offences and the quality of defence they offered. He prayed the court to resolve the issue in favour of the respondents.
Regarding issue two, learned appellants’ Counsel referred the court to the ruling of the lower court, on the trial within trial, on the voluntariness or otherwise of exhibits 4 and 5, where it, inter alia, held: “The accused in their tutored position of wandering around their adhered style of telling lies in a desultory fashion…” He then, stoutly, argued that that pronouncement touched on the substantive charge when it was the voluntariness of those statements that was under consideration and not the character and guilt of the appellants. He took the view that that pronouncement was unwarranted, unjustified and did not guarantee the fair trial of the appellants.
He further attached the portion of that ruling which branded the appellants as comrades in crime thereby pronouncing on their guilt without a substantive trial. He added that at the time of that pronouncement, evidence was yet to be taken on their guilt over the offences. He maintained that the lower court was biased against the appellants, by those statements made by the lower court, contrary to their presumption of innocence of those offences as provided in Section 36 (f) of the 1999 Constitution, as amended. He placed reliance on the case of Kenon vs. Tekam (2001) 14 NLR (Pt.732) 12 at 41 – 42 and maintained that the lower court was baised against the appellants which occasioned a miscarriage of justice to them. He prayed the court to resolve the issue in the appellants’ favour.
For the respondent, on issue two, its learned counsel took a different view that the trial within trial proceeding was an independent and distinct trial from the substantive trial in criminal proceedings adding that observations, conclusions and findings made in the former must not be viewed in the con of the latter. He referred to the case of Garba vs. University of Maiduguri (1986) 2 SC 128 at 268 wherein trial was defined as a step in an action, prosecution or other judgment proceedings by which questions of facts were decided. He argued that those observations arose in relation to the lower court’s findings in the trial within trial, a complete trial so that to ascribe bias to it was unfair.
Alternatively, learned counsel argued that in view of the cogent and compelling evidence led by the prosecution, the lower court could, not have arrived at a different conclusion.
He urged the court to resolve the issue in favour of the respondent.
On issue three, learned appellants’ counsel contended that the essential ingredients of criminal conspiracy were not proved against the appellants to warrant their conviction for the offences. He reasoned that there was no evidence before the lower court, apart from exhibits 4, 5 and 6 which he urged the court to discountenance, to show beyond reasonable doubt that the appellants committed that offence. He insisted that the prosecution could not establish that there was agreement among the appellants to do or cause to be done an illegal act or a legal act by illegal means.
He cited the case of Obiakor vs. State (2002) 10 NWLR (Pt.776) 612 in support of his contention with regard to the offence of armed robbery, learned Counsel stated that for the prosecution to succeed on it, it must prove beyond reasonable doubt that there was robbery or series of robberies; each robbery was armed robbery and the appellant was one of those who took part in it or them.
He reminded the court that failure to prove one of the ingredients was fatal to the prosecution’s case. He relied on the case of Bozin v. State (1985) (Pt.465) 469.
On the first ingredient, learned counsel submitted that the prosecution failed to prove it beyond reasonable doubt as it was its duty to so do even where an accused had made a voluntary statement, citing the case of Shande vs. State (2005) 1 NWLR (Pt.907) 218 at 240. He noted that the prosecution merely relied on exhibits 4, 5 and 6, which were denied, and the evidence of pw3, the alleged victim of the crime. He attacked the evidence of PW3 as not cogent and reliable because it contained too many contradictions in her evidence in court and extra-judicial statements to the police. He referred to the evidence of PW3 where she stated that she was attacked with one gun, exhibit 2, and later two guns. He, also, referred to the evidence of PW3 in court wherein she stated that on the day of incident she collected N40,000 = from one co-operative society whilst in her extra judicial statement to the police she said that the bag snatched from her contained N50,000 = which she collected from Co-operative Society.
He took the view that it was strange that the prosecution did not call any independent witness, like the son of PW3 and other people, who apprehended the first appellant on that day. He insisted that, there was reasonable doubt about the guilt of the appellants which doubt should have been resolved in their favour. He cited the cases of Edoho vs. State (2004) 5 NWLR (pt.865) 27 at 51 and Usufu v. State (2007) NWLR (pt.1020) 94 at 118. He added that the appellants denied robbing PW3 and that the prosecution should have called at least an independent witness to corroborate their story. He concluded that the prosecution failed to call material witnesses and adduce material evidence to show that there was robbery.
Regarding the second ingredient, he persisted that the prosecution did not prove, conclusively, that the robbery was armed robbery. He stated that in coming to the conclusion that there was armed robbery, the lower court wrongly relied on the uncorroborated and unsubstantiated evidence of PW1, PW2 and PW3 and the involuntary statements, exhibits 4, 5 and 6. He alluded to the evidence of PW3 wherein she testified that it was when Sunday Alabi pursued the first appellant that exhibit 2 dropped down from him which attracted people to the scene, yet neither Sunday Alabi nor any of those people was called to give evidence about the gun.
On the third ingredient, learned counsel contended that since there was no robbery, the issue of whether the appellants were robbers became moot in the circumstance; adding that the prosecution did not prove the offence of armed robbery against the appellants. He placed reliance on the cases of Udosen vs. State (2007) 4 NWLR (pt.1023) 125 at 150 and Alonge vs. IGP (1959) 5 FSC 203 at 204 08 (1959) SCNLR 516 to support his contention. He maintained that the lower court, in the whole evidence, should have been in doubt as to the guilt of the appellants and acquitted them. He prayed the court to resolve the issue in favour of the appellants. Finally, he urged the court, on the bases of his submissions on the three issues, to allow the appeal set aside the lower court’s decision, discharge and acquit the appellants.
On behalf of the respondents, on issue three, learned Counsel referred the court to the finding of the lower court, on pages 120 – 122 of the record, on the offence of conspiracy. He then submitted that the prosecution must not establish that conspirators met before carrying out their illegal act and that it would only prove the inchoate or rudimentary nature of the offence and the inference of meeting of their minds. He added that conspirators need not be in direct communication in respect of the offence charged. He stated, that the offence of conspiracy would be sustained if the court could, from the evidence, deduce inference of certain criminal acts between the accused persons including evidence of complicity. He cited the cases of Iwuneve v. State (2000) 5 NWLR (pt. 658) 550 at 560 – 661; Osondu v. FRN. (2000) 12 NWLR (Pt.682) 483 at 501 – 502. He persisted that the evidence of PW3 on the way and manner she was robbed by the appellants showed all the necessary ingredients of conspiracy and urged the court to so hold.
On the offence of armed robbery, learned counsel stated that the prosecution proved its essential ingredients. He submitted that proof beyond reasonable doubt, as a cardinal of criminal liability, did not mean beyond shadow of doubt. He referred, to section 138 (1) of the Evidence Act, 2004 and opined that that provision was satisfied where there was evidence that an offence was committed by no other person than the accused person. He added that beyond reasonable doubt did not mean certainty of truth, but a high degree of probability that the accused committed the offence. He relied on the case of Miller vs. Minister of Pension (1947) 2 ALL E.R. 371 of 373; Ilori vs. State (1980) 8-11 SC8 1 at 99; Akelazi v. State (1993) 2 NWLR (pt.273) 1 at 13. He PW3, established that the offence was committed and by the appellants. He drew the court’s attention to how the lower court resolved the issue on pages 114-120 which excerpts he copiously reproduced. He persisted that the finding of the lower court was unassailable on the ingredients armed robbery.
It was counsel’s further submission that the evidence of PW3 and that of PW2 who followed the first appellant to where the PW3’s bag was kept established beyond reasonable doubt that there was robbery. He branded the case of Usufu v. State (supra) as irrelevant on grounds of different facts and circumstances. He took the view that there was cogent and compelling evidence of armed robbery which the lower court drew inference and the onus shifted to the appellants to rebut their guilt based on the direct evidence. He cited, the case of Adeniji vs. The State (2001) FWLR (Pt.57) 809 at 820. He referred the court to the evidence of pw3 in her examination-in-chief. He argued that despite the damning revelations from the evidence of the prosecution witnesses, the three appellants gave tact, jiffy and intangible evidence that it was not true that they robbed the complainant, pw3, and that the lower court was right to convict them. He sought in aid the case of Adepetu vs. State (1998) NWLR (Pt.565) 185 at 207.
He contended that the prosecution’s case was direct, cogent and reasonable and left no room for any doubt. He concluded that the case of Udosen v. State (supra) was a case, with two conflicting versions of how the deceased was kitted and inapplicable to the case in hand where the prosecution created no such absurdity. He urged the court to resolve the issue in favour of the respondents. Finally, based on the above arguments, he prayed the court to dismiss the appeal.
RESOLUTION OF ISSUES
In resolving the three issues framed for determination, I will attend to them one by one and sequentially as argued.
To this end, I will deal with issue one first. The hub of the appellants’ grouse on this issue is that exhibits 4, 5 and 6 were inadmissible extra-judicial statements on account of involuntariness arising from the prosecution’s (the police officers’) violation of Orders 6 and 7 (1) of the Criminal Procedure (Statement to Police Officers) Rules, Cap C23 Laws of Kwara State, 2007. To keep the record straight, the learned appellants’ counsel, in paragraph 4.08 on page 4 of the appellants’ brief of argument, swapped the two orders. He cited Order 7 (1) of the Rules and quoted the provision of Order 6 thereof. I believe that the order learned counsel meant to refer to is Order 6 of the Rules having quoted same ipsissima verba. I will, therefore, approach the resolution of the tangential point raised on them from that perspective.
Having rectified that foggy mix-up in the citation, let me place on record that procurement of pre-trial statements, such as exhibits 4, 5 and 6, from accused persons by the police in Kwara State is governed by the Provisions of the Criminal Procedure (Statement to Police Officers) Rules (hereunder abridged to “the Rules”). The Rules trace their Roots to the Judges’ Rules which, in turn, were Rules made by the English Judges, in 1912, for the guidance of English Police Officers at the behest of the Home Secretary. Those Judges’ Rules were revised in 1964. Nowadays, in and outside the police circle, the Rules have acquired the sobriquet “Judges’ Rules” which have unwittingly dominated the legal parlance. The Judges’ Rules have been codified into Rules in some parts of Northern Nigeria, as in Kwara State, while in other parts they are still procedural practice predicated on the ones of 1912 of England, see Egboghonome v. State (1993) 7 NWLR (Pt.306) 38 at 431. In view of the genealogy of the rules, it will not be out of con to allude to them interchangeably with the Judges’ Rules their progenitors.
The Provisions of Orders 6 and 7(1) of the Rules, which the appellants accused the respondent of their breach, state as follows:
6. Person making statement not to be cross-examined.
A person against whom a police officer has decided to make a complaint and who makes a voluntary statement shall not be cross-examined and no question shall be put to him about such statement except for the purpose of removing ambiguity in what he has actually said
7. Statements by two or more persons:
(1) When a police officer has decided to make the same complaint against two or more person and their statements are taken separately, the police officer shall not read such statements to the other person or person, but each of such persons shall be given by the police officer a copy of such statements and nothing shall be said or done by the police to invite a reply:
Provided that where such a person is an illiterate, the statement may be read over or interpreted to him apart by some person other than a police officer and anything said to such reader by such person when the statement is read shall not be admissible in evidence against him.
The appellants held tenaciously to the stance that the lower court ought not to have admitted exhibits 4, 5 and 6 in evidence because they were products of question and answer session between the police and the appellants in contravention of the provision of order 6 of the Rules. Generally, there is no doubt that any extra-judicial statement made to police officers, arising from question and answer session, is an aberrant breach of the provision of order 6 of the Rules and would be rendered inadmissible. In the case of Namsoh vs. state (supra), on which learned appellants’ Counsel placed high premium, a superior police officer prepared questions on a sheet of paper and, handed over to an investigating police officer to ask the appellant. That statement was admitted as exhibit H. The Supreme Court, Pet Kutigi, JSC, as he then was, declared the statement, exhibit H, inadmissible as an aftermath of a question and answer in flagrant violation of the provision of order 6 of the (Criminal Procedure (Statement of Rules, 1960, Cap 30 Laws of Northern Nigeria, 1963.
Nevertheless, in the case in hand, I have given a microscopic examination to the entire gamut of evidence tendered during the trial within trial proceedings, encapsulated on pages 51-61 and 76 – 83 of the printed record, and I cannot fish out, either in the evidence of the prosecution or the defence, where what transpired in Namsoh’s case (supra) occurred. In order words, there is no tinge of evidence depicting a scenario whereby the police officer outlined questions in advance and elicited answers from the appellants from those questions. No questionnaire method was adopted by the police in obtaining the pre-trial statements of the appellants so as to make exhibits 4, 5 and 6 run foul of the prescription of Order 6 of the Rules. On this premise, I endorse, in toto, the finding of the lower court, on page 72, lines 17-18 of the cold record, that it was not shown that there were selected questions by the police officers which produced those exhibits sought to be impugned.
I am not oblivious of the testimony of the second appellant, DW2 in his examination-in-chief, on pages 59 and 60 of the record, to the effect: “That I should be answering this questions…. That was how they loosened the rope and started asking me questions which I answered… They asked me questions and I answered. them.” Nonetheless, those pieces of evidence fall short of the mode of already prepared questions as happened in the case of Namsoh vs. State (supra) which the apex Court frowned upon and discountenanced it. The net effect of the foregoing is that the facts of Namsoh’s case (supra) sharply contrast with those of this case. On the premise of facts differentials, therefore, I will decline to employ the principle enunciated in that case, Namsoh’s, to the instant case at least not in the glaring absence of infraction of the stipulation in Order 6 of the Rules. At any rate, I have my doubts if the provisions of those Rules, offshoots of Judges’ Rules, are mandatory at all cost as pressed upon by the learned counsel for the appellants. To bear me out in my doubts, I will take parties through some judicial authorities on this critical point. In the case of Ojegele vs. The State (1988) NSCC 276 at 282, Oputa, JSC, lucidly said of the Judges’ Rules, the forerunners or forefears of the Rules, that:
Nobody, however, disputes the wisdom behind those Rules. But having said that, it is necessary to add that they are Rules of administrative practice. They are rules made for the mere efficient and effective administration of Justice and therefore should never be used to defeat Justice. Even in England the Court of Appeal felt bound to observe that the court must take care not to deprive themselves by new artificial rules of practice of the best enhances of learning the truth…. The aim of the Judges Rules is to ensure that confessions are voluntary. That practice should never be stretched too far, for the protection of guilt.
In the case of Nwaebonyi v. State (1992) 5 NWLR (Pt.244) 698, it was held that the fact that a confessional statement did not contain the usual cautionary words, as required by the Judges’ Rules, orders 3, 4 and 5 of the Rules, was not enough reason not to admit it in evidence. Also, see Nwigboke V.R. (1959) 4 FSC 26 08 (1959) SCNLR 248. Recently, in the case of Igago v. State (2001) 2 ACLR 104 at 120, Karibi-Whte, JSC, opined:
Learned counsel to Applicant has referred to the breach by PW5, 6 and 7 of the Judges’ Rules in the manner the statements were recorded. There is no evidence that the statements were in breach of the rules, as counsel did not refer to evidence of any breach. However, there is evidence that the statements Exhibits “A” and “B” were taken down after the usual caution had been administered. In any event there are rules of caution the non-observance of which is not necessarily fatal to the admissibility of the statement – see Uche vs. Queen (1964) 1 ALL NLR 195.
It flows or stems from these ex cathedra authorities, particularly Igago’s case, which is latter in time to Namsoh’s case, that non-conformity which the Rules is not at all times inimical to the admissibility of pre-trial statements to the police. Being rules of procedure, albeit criminal procedure, where their strict observance is in collusion course with the need to do justice, a court of law will bend towards dispensation of justice, especially if the former will be “for the protection of guilt”. That is the only way those rules will be accorded their rightful place or status of being subservient handmaids to justice. They can never rise to omnipotent masters ready to wrestle down justice, see Okaroh vs. State (1988) 3 NWLR (pt.81) 214 at 220. In sum, the minor or minute deviations from the prescription of Orders 6 and 7 (1) of the Rules, highlighted in the appellants’ brief of argument, are not potent enough as to have pernicious effect of not admitting exhibits 4, 5 and 6 by the lower court.
The appellants, also, picked holes in exhibits 4 and 5 on the ground that they were recorded in English Language when their makers, the second and third appellants, were illiterates. I have again, meticulously, burrowed or browsed through the evidence as presented during the trial within trial proceedings. Again, I fail to trace out any testimonies that demonstrate that the second and the third appellants wear the toga of illiteracy in English Language. The evidence of PW1, under cross-examination, found on page 53 of the record, merely showed that “When I asked them what happened they explained in Yoruba and I recorded it in English”. Also, at the dawn or threshold of the second and third appellants’ evidence-in-chief, as DW1 and DW2, or pages 57 and 59 of the record respectively, the lower court recorded for them as those who spoke Yoruba Language. The mere fact that they spoke Yoruba language was not conclusive that they were illiterates in English Language. This is because a person may be very literate in English language and other local language or dialects and may decide to settle for the latter for convenience and fluency. Short of clear, unambiguous and categorical evidence that they are illiterates in English Language, I cannot see my way clear to tag them with the pejorative stigma of illiteracy. By the same token of void or of paucity of evidence, this case falls outside the perimeter of the facts of the cases of Ahmed vs. State (supra) and Ajidahun vs. State (supra) on which learned appellants’ counsel pegged his submission. Even then, the recordings in the excoriated exhibits, being automatic or direct translation to English Language from the appellants dialects, were properly done in first person singular and not in reported speech in keeping with the decree of Kalgo, JSC in Ahmed’s case (supra). I will, therefore, not invoke those cases on this peripheral point on account of factual differences, see Onafowokan v. State (1987) 3 (Pt.61) 338.
Besides, there is another intractable albatross around the view point of learned counsel for the appellants on this side issue. It is my, humble, view that his submission, as inviting as it appears, unwittingly overlooks the crucial or written in the official language of Nigerian superior courts of record. The law is settled that the lingua franca for adjudication in the Nigerian courts is English Language, inherited and imposed on Nigerians by our colonial masters – the English men. It is a cold fact that Yoruba vernacular has never been the official language in the Nigerian courts. A court of law is presumed to be an illiterate in any document written in any Nigerian local language as it cannot comprehend its content no matter the dexterity of the Judex in that language, see Damina v. The State (1995) 9 SCNJ 254 or (1995) 8 NWLR (Pt.415) 513. It is for these reasons that I hold the, considered, view that the recording of exhibit 4 and 5 in the official language of the courts cannot, by any stretch of imagination and dazzling arguments of counsel, constitute any hiccups in the terrain of their admissibility as voluntary extra – judicial statements.
One outstanding side issue, begging to be resolved, is the appellants’ quarrel that the lower court did not properly look into the evidence of those tortures by the police before obtaining exhibits 4, 5 and 6. The kernel of their grievance and invitation is that the evidence be re-evaluated so as to redress or douse the miscarriage of justice they suffered by the lower court’s poor evaluation.
In acceding to the appellants’ request, I have read, with a fine tooth comb, the testimonies, from the prosecution the defence, on the point during the trial within trial proceedings. The resume of the evidence of the prosecution witnesses, offered in the two sets of that proceeding, is that the appellants volunteered their statements to them and that they were never brutalized, tortured, threatened, intimidated or induced before making them. These are staggered on pages 52, 53, 54 76 and 78 of the cold record.
In law, it is incumbent on the prosecution to establish that pre-trial confessions or statements are made voluntarily in any trial within trial proceeding, see Gbadamosi v. The State (1992) 11/12 SCNJ 209, Eke v. State (2011) 3 NWLR (pt.1235) 589.
Those pieces of evidence, proffered by the prosecution/respondent in that proceeding, were not successfully challenged under cross-examination in the lower court. But, I hasten to add that they were clearly controverted by the defence as shall be seen anon. The law compels the appellants to puncture the unchallenged evidence of the prosecution/respondent by demonstrating that their statements were products of involuntariness, see Nwangbomu vs. The State (1994) 2 SCNJ 107. To this end, I will now cull or extract, from the printed record of appeal, the evidence offered by the appellants.
The synopses of testimonies of the second appellants, as DW1, in that proceeding were that the police told him to see the blood on the wall slapped and hanged him in the torture chambers that had no light and he sustained injuries and scars on his head. He denied volunteering his statement. see pages 57 – 58 of the record of appeal. Similarly, on pages 59 – 61, of the printed record, the third appellant testified that the police told him that they do kill and then slapped, him on the check and blood gushed out. That the police tied his hands and leg with a rope, beat and tortured him to sign his statement in a small room In the same vein, the appellant, DW1, in his own separate proceeding, testified that he was tied with a rope and cut with cutlass. The police told him that they do kill people and they threatened to kill him. He “was handcupped, chained and hanged on the ceiling” which injured his hand. He was beaten with gun butt by PW1, Insp. Agene. He stated that: “My statement was not voluntary. All what they wrote down was not what I voluntarily told them” These pieces of evidence dot his testimonies spanning from pages 80 -83 of the record.
Interestingly, the testimonies of the appellant’s on the point at stake, also, remained unchallenged by the respondents in that proceeding. That is to say, the evidence presented by the respondent and the appellants on this seminal point run paripassu. Given that parity in their testimonies, doubt ought to be created in the mind of the lower court as to the voluntariness or otherwise of those extra-judicial statements – exhibits 4, 5 and 6. The reason is not far-fetched. The lower court ought to be bewildered and confused as to which of the set of evidence it would be believe, the respondent’s or the appellants’, particularly in the absence of any documentary evidence that would be used as a hanger. A doubt presupposes that the respondent was unable to establish the voluntariness of those statement in the glaring face of the evidence of the appellants, see Namsoh v. State (supra) (1993) 6 SCNJ (pt.1) 55. By law, once there is doubt in any criminal proceedings, such doubt enures to the benefit of an accused person, see Architong vs. State (2006) 14 NWLR (pt.1000) 349; Edoho vs. State (supra). In the instant case, it follows, and I so hold, that the appellants should be the beneficiaries of the doubt that arose from the testimonies of both the respondent and them in that proceeding.
That, is not all. The unchallenged evidence of the respondent were properly and adequately controverted by those of the appellants. This brings me to the wide chasm between unchallenged and uncontroverted evidence.
Although the two expressions have the same overall effect that a challenged or controverted evidence does not attract any judicial weight and credibility, they are far from being coterminous. The former arises during cross-examination of witnesses whereas the latter occurs during the defence of the adversary. The dichotomy between the two symmetrical expressions was brought to the limelight in the case of Oforlete v. State (2000) 3 NSCQR 243 at 261 or (2000) 12 NWLR (pt.681) 415 at 440 when Ayoola, JSC, succinctly observed:
However, it does appear to me that a distinction had always been drawn in the manner in which evidence is challenged or controverted.
“Unchallenged” and “uncontroverted” have mostly been used as meaning the same thing. See, for instance, Egwunike vs. ACB Ltd. (1995) 2 NWLR (pt.357) 34 SC.
In a strict sense “unchallenged” and “uncontroverted” may not mean the same thing. To challenge is to object or except to something or to put it in dispute or render doubtful. To controvert is to dispute or deny oppose or contest. (For both definitions see Blacks law Dictionary 6th edition).
Challenging a witness is more appropriate in cross-examination while controvesting his evidence is more appropriate in leading contrary evidence. Notwithstanding the distinction in most cases the consequence would be the same whether evidence as unchallenged or whether it is uncontroverted. Whether evidence is challenged and rendered doubtful or without weight by class-examination, the fact that it is not controverted by contrary evidence will not render it cogent or weighty. On the other hand, the fact that contrary evidence has not been adduced to controvert the evidence of a witness on a particular matter weakens and suggestion that that evidence is not true.
So, the contrary evidence produced by the appellants, on what happened to them in the course of taking their statements by the police, had amply demolished the respondent’s unchallenged evidence. To top it all, the appellants’ testimonies during their examination-in -chief, on how the Police officers manhandled them in the course of giving their extra-judicial statements, were not cross-examined upon by the respondent. In law, the failure of an adverse party to cross-examination a witness on evidence he has presented to a court is taken as an admission by that opposing party, see Oforlete vs. State supra; Azeez vs. State (1986) 2 NWLR (pt.23) 541. When these highlighted reasons are pooled together, the total effect is that the appellants were able to show, before the court below, that they were tortured and intimidated in the course of making exhibits, 4, 5 and 6 before the police who had since dissolved into the respondent. What then is the legal consequence of that untoward mode of obtaining extra-judicial statements by the police? The answer is embedded in the provision of Section 29 (2) (3) and (5) of the Evidence Act, 2011 (the erstwhile section 28 of the defunct Evidence Act, 2004) which provides:
29 (2) If in any proceedings where the prosecution proposes to give in evidence a confession made by a defendant, it is represented to the court that the confession was or may have been obtained-
(A) by oppression of the person who made it, or
(B) in consequence of anything said or done which was likely, in the circumstances existing at the time, to tender unreliable any confession which might be made by him in such consequence the court should not allow the confession to be given in evidence against him except in so far as the prosecution proves to the court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained in manner contrary to the provisions of this section.
(3) In any proceedings where the prosecution proposes to give in evidence a confession made by a defendant, the court may if its own motion require the prosecution, as a condition of allowing it to do so, to prove that the confession was not obtained as mentioned in either paragraph (a) or (b) of subsection (2) of this section”
(5) In this section “oppression” includes torture, in human or degrading treatment, and the use or threat of violence whether or not amounting to torture.
There is no gainsaying the fact that the above highlighted acts, which the Police Officers, and by extension the respondent, inflicted on the appellants wholly qualify and come within the four walls of oppression as defined in section 29 (5) of the Evidence Act, 2011. I make bold to say that those acts are oppression par excellence. Nothing can be more dehumanizing or debasing to the appellants in hands of the prosecution. Indeed, those acts of oppression and torture make mincemeat of and impinges on the appellants’ inviolable right to dignity of human persons as entrenched in section 34 of the 1999 Constitution, as amended, which inheres in them as human beings. Those oppressive acts make those pre-trial statements, exhibits 4, 5 and 6, to be mired in the miasma of involuntariness and they cease to be confessions as envisaged by the provision of section 28 of the Evidence Act, 2011. Since those exhibits were not made by the appellants in their own volition, they ought not to have been admitted by the lower court and their admission is an affront to the law, see Igago v. State (supra); Egboghonome v. State (supra); Eke v. State (supra); Ozarki v. State (supra).
Curiously, the lower court, on page 72 of the record, reached the following finding to wit:
In summary, I find the statement of the 2nd and 3rd accused persons made on 20/8/2007 quite voluntary and devoid of any torture and coercion.
They are admitted in evidence and marked as follows: statement of the 2nd accused exhibit 4 statement of the 3rd accused exhibit 5
On page 92 of the record of appeal, it, also, found:
The effect of all the above finding, is that the prosecution witness can be believed as their consistent testimony that the 1st accused was not coerced, tortured or brutalized before making his statement. I therefore admit the statement of the 1st accused made on 20/08/2007 in evidence and mark it as exhibit 6.
With the greatest respect to the learned trial Judge, those findings, regarding those exhibits, fly in the face of the unrefuted evidence presented by the appellants in that trial within trial proceeding. I am quite conscious of the law that an appellate court should not interfer with findings of lower courts which had the rare and singular opportunity of seeing and watching the demeanor of witnesses giving evidence before them. Be that as it may, I am, also, mindful of the fact that that hallowed principle of law is appreciated more in its exception than in the rule. Put simply, that principle is riddled with qualifications. One of such riders, relevant here, is that the rule looses steam when the findings of the lower court are perverse. A finding or decision is perverse when it runs counter to the evidence; when a court takes extraneous matter into account to shuts its eyes to the obvious or when it occasions miscarriage of justice, the last being such departure from the rules which permeate all judicial process as to make what happened not in the proper sense of the word judicial procedure at all, see Ahmed v. State (supra); State v. Ajie (2000) 3 NSCQR 53; Abeke v. State (2007) 9 NWLR (Pt.1040) 411.
A juxtaposition of the solemn findings reached by the lower court, reproduced above, with the appellants’ evidence before it, it is obvious that they did not in the least flow from the evidence staring in the face of that court. In other words, those findings ignored the evidence presented before it, the lower court. The lower court, with due reverence, having turned a blind eye to those pieces of oppressive evidence vis-a-vis those findings, I have the unbridled licence of the law to crown them, alongside their concomitant miscarriage of justice, with the ignoble toga of perverse decision. Exultantly, the law allows me to tinker, by dint of interference, with those perverse findings. I will not hesitate to set them aside on account of perversion.
Having done away with those perverse findings, the admission of the appellants extra-judicial statements exhibits 4, 5 and 6, turns into an orphan in that there is no substratum upon which it, the admission, would be predicated. It stands on a quicksand, waiting to expunged from the proceedings. In the light of the foregoing, exhibits 4, 5, and 6 become inadmissible evidence on the footing of involuntariness. Although they were wrongly admitted by the lower court, they ought to have been excised at the judgment stage. Having failed to wake up to that responsibility, the law gives me the mandate to jettison them from this appeal on ground of inadmissibility, see Namshoh vs. State (supra); Olayinka vs. State (2007) 9 NWLR (pt. 1040) 561; Archbong vs. State (supra). Taking sanctuary or refuge under the above positions of the law, I am impelled to weed out the appellants’ extra-judicial statements made to the police on 20/08/2007, admitted as exhibits 4, 5 and 6, for being unwholesome and unwelcome documents to this proceeding. Accordingly, exhibits 4, 5 and 6 are expunged from this appeal. In effect, I resolve issue one in favour of the appellants.
That brings me to the resolution of issue two. The fulcrum of that issue is that the appellants’ right of
presumption of innocence was violated during the trial within trial proceeding. To begin with, I must place on record that the issue has nexus with the first issue just determined. This is because it is still a vitriolic attack on the observations or comments made by the lower court in the trial within trial proceeding. In the light of this affinity, the resolution of issue one dovetails with it. In this wise, my finding or conclusion on issue one rears its head here and becomes relevant. It will be recalled that exhibits 4, 5 and 6 were dispensed with, as unwanted documents from the appeal for reason of involuntariness. Having removed them, the undoubted end products of that trial within trial proceeding, it seems clear to me that this issue, which is hosted or warehoused in that mini-trial adjudication, becomes totally nude. It has no pedestal to stand or proceeding to be anchored to, exhibits 4, 5 and 6, the desiderate in that proceeding, having been removed as in admissible. Indubitably, the lower court’s comments that: “The accused in their tutored position of wandering around their adhered style of telling lies in a desultory fashion…”
and comrades in crime, contained on page 70 of the record of appeal, form part and parcel of that proceeding, since they were parts of the ruling of the lower court. In short, with the excision of those exhibits, the end results of that proceeding, it the proceeding, becomes empty or hollow signifying nothing worthy of further consideration.
In any event, those two observations, on which the issue is predicated, are more comments that are miles away from being classified as the rationes decidendi of that trial within trial proceeding. At worst, they come squarely within the realm of obiter dicta. A ratio decidendi is the reason for a decision, the principle of law upon which a court’s decision is based. A ratio decidendi is diametrically opposed to Obiter dictum which is something said in passing, & judicial comment made by a judex in the course or process of delivering judgment, but not necessary to the decision. Thus, it can be garnered, from the above explanations, that the two statements qualify as obiter dicta. The ratio decidendi in that proceeding was the admission of the appellants’ pre-trial statements to the police, as exhibits 4, 5 and 6, on the ground that they were voluntarily made. Those comments, being passing remarks uttered by the learned trial Judge in the course of his ruling, do not offend the appellants’ right to presumption of innocence as enshrined in section 36(5) of the 1999 Constitution, as amended, as canvassed by learned appellant’ counsel. For this, I drum up support from the age-long principle of law that a ground of appeal, and an issue germinating from it, must attack the ratio decidendi, not an obiter dictum, in a judgment else it will be impotent to nullify the judgment, see Adelekan vs. Ecu-line NV (2006) 12 NWLR (pt.993); 33; Dairo v. UBN Plc (2007) 16 NWLR (pt.1059) 99.
The appellants took a serious swipe against the entire trial in the lower court branding it as unfair to them because of those two comments which they categorized as bias. I am not in the least persuaded by this inviting argument in the sense that it does not cut ice with the law.
Those two observations attach to that trial within trial proceedings so that even if they were obnoxious and unwarranted, their vitiating elements will not be contagious to contaminate the whole criminal trial. The reason is obvious. The trial within trial was restricted to a particular object – determination of the voluntariness or otherwise of the appellants’ extra-judicial statements and no more. To bear me out, I draw on the case of Gbadamosi v. The State (supra). In that case, in the trial within trial proceeding conducted by the High court of Lagos State, the first appellant testified first before the prosecution. His statement was admitted as exhibit H. The case meandered to the Supreme Court which declared that procedure as irregular and set aside exhibit H as a confessional statement. On the point at stake, Omo, JSC, on page 278 thereof, stated:
On whether this irregularity should result in the whole trial being pronounced a nullity, no serious argument had been advance by appellant’s Counsel. The irregularity attaches to only an aspect of the trial designed for a specific purpose. The aspect is the test of the voluntariness of a confessional statement. The specific purpose is the admission in evidence of the document. The only effect of this irregularity cannot possibly go beyond its specific purpose; and lead to the vitiating of the whole trial. The irregularity therefore does not make the whole trial null and void.
I will borrow a leaf from that decision as stare decisis will not allow me to do otherwise. In all, I resolve the issue (two) against the appellants.
I now proceed to thrash out issue three, whether the prosecution proved the offences of criminal conspiracy and armed robbery against the appellants beyond reasonable doubt.
The meat of the appellants’ complaint on the issue was that the prosecution, against the findings and conclusions of the lower court, never established the offences to the standard required by law. They castigated or carpeted the lower court’s evaluation of the evidence and invited this court to intervene.
For orderliness, I will kick off with the offence of criminal conspiracy whether it was proved beyond reasonable doubt against the appellants before the lower court. The provision of section 96 of the Penal Code Law, Cap. P4, Laws of Kwara State of Nigeria, 2006, defines the offence of Criminal Conspiracy thus:
96 (1) When two or more persons agree to do or cause to be done.
(a) an illegal act; or
(b) an act which is not illegal by illegal means, such an agreement is called a criminal conspiracy.
Conspiracy is a confederacy or agreement between at least two persons with the object of committing unlawful or criminal act or doing lawful act by illegimate means. Since it is an agreement, express or implied, it takes at least two to conspire, one person cannot be guilty of conspiracy. The actual agreement by the conspirator, owing to the fact that it is invariably shrouded in secrecy, constitutes the offence without any necessity to prove that the criminal act has been committed. Due to the usual clandestine nature of the offence, it is invariably not provable by direct evidence, but by circumstantial evidence and inferential evidence deducible from proved acts of the conspirators in evidence.
Such circumstantial evidence, which is often times as good and sometimes better, than direct evidence, must be cogent, impregnable, consistent, unequivocal and irresistibly lead to the guilt of the accused conspirators. In other words, the offence could be committed by the action, conduct or concert of the conspirators. To secure conviction of an accused person on a charge of conspiracy, there must be established, beyond reasonable doubt by the prosecution, that there is a meeting of the minds of the conspirators with a joint or communal effort at committing a crime. These meanings and ingredients of the offence of criminal conspiracy have been given a seal of approval and re-echoed in a flood of judicial authorities, see Obiakor vs State (supra); Kaza vs. State (2008) 7 NWLR (pt. 1085) 125; Abdullahi vs. State (2008) 17 NWLR (pt. 1115) 203; Omotola vs. State (2009) 7 NWLR (pt.1139) 148; Sule vs. State (2009) 17 NWLR (pt.1169) 33; Psu v. State (2011) 2 NWLR (pt.1234) 393.
Against the background of these elements of criminal conspiracy, did the prosecution establish the offence against the appellants? In order to elicit a plausible answer to this query, it is germane to pluck out the evidence of the prosecution relevant to the offence. At the dawn of the examination-in-chief of PW3, the prosecution’s star witness, on page 77 of the record, she testified as follows: “I know the accused persons. On 18/5/07 at about 9.30p.m. I was coming from my shop to my house when I took a motor bike home being ridden by a motor cyclist. As I came down on the motor cycle, I moved 2 (two) steps on the stair case and I saw the attackers with gun pointed at me. They asked if I will surrender my bag with money or my life. The people who attacked me are the accused persons standing trial.
They snatched the bag from me and I started shouting as I ran to the door … “Under cross-examination, she answered:
“It was the 1st accused who was first arrested before he mentioned the names of the other accused persons.
(underlining mine)
It can be gleaned from these pieces of evidence, particularly the underlined portions, that the appellants had an agreement or confederacy, overt or covert, to attack or rob the victim, PW2. This is demonstrable from the meteoric manner they swooped on the victim contemparenoushy with their lethal club or weapon to dispossess her of her bag.
It heir joint or communal attack on their prey, the victim Indicated that they were consensus ad idem – prior to the onslaught on her. Their concurrent close in for the PW3 was not spontaneous nor a fluke. Moreover, the bald fact, based on the evidence, that the first appellant, mentioned the names of the other appellants shows that they had a previous unlawful pact over the attack on PW3 otherwise he would not have mentioned their names. Although they are not direct evidence of conspiracy, they consist of circumstantial evidence which are impregnable and point irresistibly to the guilt of the appellants vis-a-vis the crime evidence, they are both unchallenged and uncontroverted viva voce testimony. The law gives the court the latitude to act and rely on an unchallenged evidence to arrive at a decision, see Tanko v. State (2009) 4 NWLR (pt.1131) 430; Ebeinwe v. State (2011) 7 NWLR (pt.1246) 402.
With these undebunked testimonies, the prosecution, contrary to the contention of the appellants, established the appellants’ commission of the offence of criminal conspiracy beyond reasonable doubt as enjoined by section 135 (1) of the Evidence Act, 2011. After all, the expression, proof beyond, reasonable doubt, a mantra in criminal justice system, does not import proof beyond all shadow of doubt. It simply connotes that there are credible and cogent evidence which show that there is a high probability that the accused charged, and no other, committed the crime, see Afolalu vs. State (2010) 16 NWLR (pt. 1220) 584; Eke vs. State (supra).
Indisputably, the attainment of this standard of proof, beyond reasonable doubt, by the prosecution/respondent is less difficult in this specie of crime, criminal conspiracy, where ordinary or inferable agreement, the mens rea, not the acteus reus regarding the main charge, constitutes sufficient commission of it.
On the count of criminal conspiracy the lower court, on page 122 lines 5 – 7 of the printed record, after evaluating the intertwined evidence found: “I therefore find as a fact that the accused persons conspired to rob PW3 and they are convicted, having found them guilty as charged.” Given the unchallenged circumstance evidence, x-rayed above, I fully fall in with the finding of the lower court on the count of criminal conspiracy. I make bold to christen it as unimpeachable and I will desist from disturbing it in order not to incur the wrath of the law.
Having done away with the offence of criminal conspiracy, I now move to consider that of armed robbery. By virtue of the prescription of section 11, the interpretation clause, of the Robbery and Firearms (Special Provision) Act, Cap, R 11, Laws of the Federation of Nigeria, 2004 (hereunder abridged to “the Act”), “robbery” means stealing anything and, at, or immediately before or after the time of staling it, using or threatening to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained.” where the robbery is accompanied by the use of firearm or offensive weapon which causes or attempts to cause any person’s death or hurt or unlawful restrant or fear, it metamorphoses into armed robbery, see Ebeinwe vs. State (supra); The State vs. Yamusissika (1974) 6 SC 63 at 62. To secure a conviction for the offence of armed robbery, the prosecution, the respondent herein, is required to prove, beyond reasonable doubt, that: there was robbery or series of robberies; each robbery was an armed robbery and the accused was one of those who took part in the armed robbery. Each of the three ingredients must be proved beyond reasonable doubt, see Bozin v. State (supra); Eke v. State (supra); Afolalu v. State (supra); Nwaturocha v. State (2011) 6 NWLR (pt.1242) 170; Abdullahi v. State (supra); Attah v. State (2010) 10 NWLR (pt.1201) 190.
Did the respondent prove these ingredients of armed” robbery against the appellants in the lower court? In this wise, the relevant testimonies of the respondent’s witness will be on hand to determining this all important question.
At the tail ends of the examination-in-chief of PW2, Insp. Agne, on page 95 of the record he testified that: “I visited the scene of crime with both complainant accused persons. At the scene of crime I discovered that the house of the accused is very very close to the house of the complainant corroborating the evidence of the statement, of the 1st accused that the 3rd accused withdraw to avoid recognition.
The 2nd accused took us to where he abandoned the bag he collected from the victim when he was running away… My investigation revealed that the 3 accused persons did rob the complainant on gun point.”
I had earlier on reproduced some portions of the evidence of PW3, the respondent’s star witness. I will, at the risk of prolixity or repetition, borne out of necessity, extract them again. On page 97 of the record, PW3, under evidence-in-chief, stated: “I know the accused person. On 18/8/07 at about, 9.30pm I was coming from my shop to my house when I took a motor bike home being ridden by a motor cyclist. As I came down on the motor cycle, I moved 2 (two) steps on the stair case and I saw the attackers with gun pointed at me. They asked if I will surrender my bag with money or my life. The people who attacked me are the accused person standing trial. They snatched the bag from me…There was light in the environment. .. . The gun pointed at me was small… They pursed the accused persons to a point where one of them was arrested and taken to the police station.”
In the crucible of cross-examination, on pages 98-99 of the record, she answered:” I don’t know the 3 accused person before this incident. I knew the accused persons on the day they were arrested. As there was light reflection on the day of the attack I was able to identify them again at the police station …. There was extream (sic) illumination of light in the surrounding (sic) Buildings that made me identify them. On the day of the incident there was reflection of florescent tube on my house and other neighbouring buildings… .On that day of the incident I collected N40,000 from co-operative society. My bag was black colour…. I have never seen gun at close range before…. it is true I was afraid when they pointed gun at me. I obeyed the accused who pointed gun at me because I don’t want to lose my life. I was not asked to face down.
They pointed 2 guns at me from both sides. While the 3rd accused was standing at my back other faced me directly and asked me if knew them and I said I don’t them. I shouted after they collected the bag from me and left… It was only one (1st accused) that was arrested at Idi-Agbon Area, Jebba and not the three of them…. I was already at the police station before the accused persons were arrested. It was the 1st accused who was first arrested before he mentioned the names of the other persons… Three persons came to attack me with guns on that day. I saw the accused persons on the day of the incident. I can’t remember the colour of the cloth worn on that day by the accused. One of them wore white, another had red colour attire on but not long sleeve” Under re-examination, she tersely replied:
“What I said in Jebba was that two accused persons had guns with them. Three (3) accused persons robbed me on the day of the incident”.
Flowing from the above excerpts of the evidence of PW2 and PW3, it is crystal clear that the PW3, a food vendor, was robbed by the appellants on 18/08/2007 around 9.30 p.m. in front of her house at Baba Oloya, Jebba and dispossessed of her bag containing some money. There is no better evidence of robbery than the ones offered by the respondent.
Furthermore, the testimonies showcase that the robbery or larceny was armed robbery in the sense that theft on the PW3, the victim, was actuated by the use of a locally-made pistol, received in evidence as exhibit 2. No doubt, exhibit 2, the locally made pistol, falls with the four walls of “firearms” which by section 11 of the Act “includes any canon, gun riffle, carbine, machine-gun cap-gun, flint lock gun, revolver, pistol, explosive or ammunition or other firearm, whether whole or in detached pieces,” see State vs. Olatunji (2003) 13 NWLR (pt.539) 138. The pointing of the locally made pistol on PW3, by the appellants, from her evidence, rattled and instilled fear of losing her life in her.
Hence, PW3, who was a stranger to the likes of exhibit 2, since her girth, was scared and obeyed the appellants in order to preserve her precious and priceless life.
Above all, the evidence amply demonstrate that each the appellants partook in committing the heinous offence armed robbery. From the evidence, PW3 saw the appellants who pointed gun at her and snatched her bag at Baba Olaya, Jebba, the locus criminis. She identified them because the locus criminis was lit or illuminated by the electric light in her house and her surrounding milieu which made her recognize them at the Jebba police station. There is evidence that the first appellant was arrested and handed over to the police Divisional Headquarters, Jebba, and he acted as a pointer to the apprehension of the second and third appellants. That confirmed that the appellants were associates-in-the crime regarding the armed robbery. She was never shaken on her evidence that it was the appellants that robbed her with a gun on 19/8/2007. Her evidence further unveiled the colour of the dresses two of the appellants wore on that fateful day – one wore white while the other was clad in red colour attire, short sleeve. PW2 I gave unchallenged evidence of how the second appellant took them to where he kept the bag they collected from PW3.
These visual identification, evidence visual is very strong and further made more credible by the bright nature of the scene of the crime, see Ndukwe vs. State (2009) 7 NWLR (pt. 1139) 43; Afolalu vs. State (2010) 16 NWLR (pt. 1220) 584. I dare say, from the evidence, PW2 and PW3 were cock sure that it was the appellants that robbed her on that day 18/8/2007. In the case of Adeyemi v. State (1991) 1 NWLR (pt.9170) 679 at (1991) 693 or 2 SCNJ 60 at 71 Olatawura JSC, opined:
It is fallacious to think that the only identification of an accused person acceptable when an issue of identification is raised in an orchestrated identification parade. Identification depends on mental ability and perception of individuals. Where a witness who gave evidence of visual identification was not cross-examined nor shaken under cross-examination, nothing stops a trial judge from accepting his evidence. See, also, Otti vs. State (1993) 5 SCNJ 143 or (1993) 4 NWLR (Pt. 290) 675; Archbong vs. State (2006) 14 NWLRR (Pt.1000) 349; Ukpabi v. State (2004) 11 NWLR (pt. 880) 439. The PW3, under the crucible of cross-examination, was totality unshaken as to the identity of the appellants. If anything, she threw more light on the lighting conditions of the scene of the crime which made her to recognize them including their dresses.
One of the appellants’ complaints was that there was contradiction in the evidence of PW3 regarding exhibit 2.
That during her examination-in-chief she testified that she was attacked with only one gun, exhibit 2, while under cross-examination, she said that the robbers used two guns at her both sides. To start with, the etymology of the word “contradiction” is traceable to two Latin words to wit:
“contra” and “dictum” which imply “to say the opposite” Incontestably, the law abhors a witness contradicting himself by speaking from both sides of the mouth. However, for a contradiction to be fatal to any case or evidence, it must be on material points. Put the other way round, discrepancies do not negative an otherwise crecible evidence of a witness, see Ebeinwe vs. state (supra);Eke vs. State (supra); Olayinka vs. State (2007) NWLR (pt. 1040) 561; Akpa v. State (2008) 14 NWLR (pt. 1106) 72; Attah vs. State (supra).
In my humble view, the fact that PW3 mentioned one gun, exhibit 2, and two guns during her examination-in-chief and cross-examination respectively is not a material contradiction in her testimonies. It is of no moment whether it was one gun or two guns that the appellants used to steal the PW3’s bag. The bottomline is that they used a gun to execute and actualize the dastardly act of robbing PW3. It would have been a different ball game if PW3 had stated, under cross-examination, that no gun or offensive weapon was used after testifying that a gun was used. The mention of one and two guns is trifling, not substantial and inconsequential to have a telling effect on the evidence of PW3. In the end, I hold that the appellants contention on this point holds no water.
The appellants further carpeted the evidence of PW3 in court as being contradictory to that in her extra-judicial statements to the police regarding the sum stolen from her in the former she stated that on that day, she collected N40,000 from one co-operative society while in the latter, exhibits 7 and 7A, she said that the bag snatched from her was containing N50,000.00 she collected from co-operative society.
Unarguably, where the viva voce evidence of a witness before a court is irreconcible with his extra-judicial statement to the police, his subsequent testimony is regarded as unreliable while his prior pre-trial testimony is no evidence for which a court can act upon. This is the position of the law, see Asanya vs. State (1991) 4 SCNJ 1; Akpabio vs. State (1994) 7-8 SCJN (pt. 111) 429; Nwankwoala vs. State (2006) 14 NWLR (pt. 1000) 663; The only acclaimed snag to the application of this cardinal rule, in criminal proceedings, is where the witness concerned is an accused person, see Egboghonome v. State (supra), (1993) 7 NWLR (Pt.306) 383; Akpan v. State (2001) 15 NWLR (Pt.737) 745.
Nevertheless, this inconsistency rule, as it is nicknamed, is totally inapplicable here. The reason is simple. The alleged inconsistency in the amount of money stolen from PW3, whether it, is N40,000.00 or N50,000.00, is not in the least substantial as to create doubt in the mind of any court. The important fact is that PW3 was robbed, by the appellants, of some sum of money. It does not make any material difference if the sum stolen was N40,000.00 or N50,000.00 as the sum will not make the nefarious act of the appellants derogate from the foul crime of armed robbery.
The sum differentials is insufficient to dent or douse the evidence of PW3. As already observed, for contradiction to weaken and annihilate evidence, it must be fundamental to the issues at stake, see Ebeinwe vs. State (supra) Akpa vs State (supra)l Eke vs. State (supra); Olayinka vs. State (supra). The central issue is that the appellants robbed PW3, with gun or firearm, of some amount of money on 18/8/2007. The exact amount stolen is minor and” peripheral. In effect, I endorse the finding of the lower court, on page 124 of the record, that the so called contradiction did not cause or inflict any miscarriage of justice on the appellants.
Not only that, I have given an intimate reading to the cross-examination of PW3 under which the PW3’s extra- judicial statements were admitted as exhibits 7 and 7A.
There is no place on record where PW3’s attention was called to the portion relating to the alleged contradictions or any portions at all for the purposes of contradicting her previous written pre-trial statements. That is to say, the provision of section 232 of the Evidence Act, 2011, which operates to the benefit of PW3 as a witness, was not adhered to. Perhaps, were the provision observed to the letter, PW3 might have explained away any seeming conflicts in the sums of money and number of guns. By law, the only purpose for which an extra-judicial statement of a witness can be put to is to discredit or contradict his evidence in examination-in-chief. The extra-judicial statements of PW3, exhibits 7 and 7A, are quite amendable to this cardinal principle of law, see Hausa v. State (1994) 7 -8 SCNJ 144; Attah v. State (supra).
Also, the appellants chastised the case of the respondent in that no independent witness, like Sunday
Alabi and others who apprended the first appellant, was called to buttress its case. In the first place, the offences of criminal conspiracy and armed robbery, with which the appellants were charged with, do not require corroboration or corroborative evidence under sections 197 and 198 of the Evidence Act, 2011, See Afolalu vs. State (2010) 16 NWLR (pt. 1220) 584.
The above reason apart, the said Sunday Alabi, the son of PW3, and others, were persons who responded to the alarm raised by PW3. They did not witness the incident of theft on PW3 by the appellants using exhibit 2. The failure of the respondent to call them as witnesses is not a costly one that will be harmful to this case. On this rare principle of law, I draw on the case of Hausa vs. The State (supra), at page 161, wherein Onu, JSC, stated:
Hence, in the instant case, failure on the part of the prosecutions… to call such witnesses as German Ubogu (d.w.1) or any other named witnesses, is not in my view fatal to the prosecution’s case. This is because the latter were not eye-witnesses to the commission of the crime but only re-acted to the alarm raised by PW2 see… Ukwunenyi & Anor vs. The State (1987) 7 SCNJ 34.
The corollary of that pronouncement, in Hausa’s case it (supra), is that the said Sunday Alabi and others are not vital witnesses required to be called by the respondent so as to prove the offences charged. In law, a vital witness is one whose testimony is crucial and will determine the fate of a case one way or the other. Failure to call a vital witness has the ominous effect on the case of the prosecution for then it will be taken not to have discharged the herculean burden of proof beyond reasonable doubt, see State vs. Azeez (2008) 14 NWLR (pt.1108) 439; State v. Nnolim (1994) 5 NWLR (pt.545) 894; Afolalu vs. State (Supra). The above highlight renders the court of Appeal decision in Usufu vs. State (supra), on which the appellants pagged this point, totally irrelevant and inapplicable here.
Even then, it is trite law that there is no bounden duty on the prosecution, the respondent here, to call a galaxy or volley of witnesses in order to prove a case beyond reasonable. One witness, whose evidence is cogent, dependable and credible, will suffice in proof of a charge; see State is. Azeez (supra); Sule v. State (supra); Nwaturuocha v. State (supra).
I must add, pronto, that the facts of the case of Udosen State (supra), on which appellants pinned their conclusion, sharply contrast with those of the case in hand.
In that case the respondent presented two conflicting versions on how the appellants, Sunday Udosen, was murdered. There are no such contrasting versions in this case. The case, Udosen’s, is distinguishable and, de jure, inapplicable hereto.
It curious that cross-examination, a noble art which constitutes a lethal legal instrument in the arm of an adversary for demolition of an opponent’s case was negatively utilized by the learned appellant’s counsel in the evidence of PW3. The answers elicited from PW3, under the furnace of cross-examination, instead of consolidating their case nailed them for the commission of the offence. It was during cross-examination that PW3 unveiled and emphasized damning evidence on the identity of the appellants and the manner exhibit 2 was used on her. What an incongruous use of cross-examination when the evidence tapped from it is as potent as the one from examination-in-chief in any proceedings. This is why it is sometimes golden not to ask too much questions during cross-examination.
When the foregoing analyses are aggregated, it seems clear to me that the respondent discharged, through and through, the burden of proof of the offence of armed robbery laden on it by law. To my mind, it proved each ingredients of the commission of the offence against appellants beyond reasonable doubt as ordained by the prescription of section 135(1) of the Evidence Act, 2011. It is now settled law that proof beyond reasonable doubt does not entail proof beyond iota of doubt otherwise it wilt be akin to allowing fanciful possibilities to defeat the course of justice. It is attained when evidence against accused persons, like the appellants, is strong and compelling leaving only a remote possibility in their favour which can be dismissed with the aphorism “of course it is possible, but not in the least probable” that they committed the offence charged. I make bold to observe that the appellants’ right to presumption of innocence of the offence, which is ingrained in section 36 (5) of the 1999 Constitution, as amended, has been completely drowned or swallowed by the credible evidence offered by the PW3. The appellants are the undoubted owners of the mens rea and actus reus via-a-vis the armed robbery charge levelled against them, see Ilori vs. The State (supra); Akalezi vs. State (supra); Afolalu vs. State (supra); Nwaturaocha vs. State (supra); Bolanle v. State (2009) 18 NWLR (Pt.2 1172) 1;
By virtue of the provision of section 135 (3) of the Evidence Act, 2011, “If the prosecution prove the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted to the defendant” see Akinmogu vs. The State (2000) 6 NWLR (pt. 662) 608 set 629 where Igu, JSC stated-
Where, as in the Present case, the evidence conclusively points at the accused as the perpetrator of the crime for which he is charged, and the evidence is duly tested, scrutinized and accepted by the court, the onus is on the accused to rebut the presumption of guilt or to cast a reasonable doubt on the case of the prosecution by preponderance of probabilities. See, also, Arogundade vs. State (supra) (2009) 6 NWLR (pt. 1136) 165; Adeniji vs- The State (supra); Adepetu vs. State (supra).
Did the appellants satisfy this provision? The evidence proffered by the appellants was a total denial of robbing PW3′ as manifested on pages 101- 102 of the printed record.
In my view, this terse evidence of denial has not met the requirement of this provision. The meagre evidence is insufficient to neutralize the unchallenged and uncontroverted testimony of PW3, the victim of the armed robbery offence, who gave an eye witness account of what transpired on that fateful day. I return a negative answer to the above query, id est, the appellants woefully failed to establish reasonable doubts.
After a careful appraisal of the evidence, the lower court, on pages 124-125 of the record, found or concluded thus:
Having considered the totality of the evidenced from the court, the submissions of counsel with the authorities cited, I am of the view that the accused persons participated and robbed the PW3 on the day of the incident (i.e. 18th August, 2007) at Jebba. I therefore find the accused persons, guilty of the offence of armed robbery and they are convicted as charged.
I cannot agree more with that finding. It radiated from the unchallenged and uncotroverted evidence before the lower court. It is quite impeccable. It will, therefore, be insulting the law to tamper with it since it is totally divorced from perverse. All in all, I resolve this issue (three) against the appellants.
In summing up this appeal, it will be recalled that I had, at the cradle of this judgment, resolved issue one in favour of the appellants on the reason that exhibits 4, 5 and 6 were inadmissible documentary evidence. Nevertheless, the appellants’ merely scored a pyrrhic victory over the respondent by that favourable resolution. The reason is not far-fetched. It is true that the lower court goofed by admitting and relying on those exhibits in convicting the appellants. However, not every error that leads to reversal of a decision. For an error to occasion a reversal of a judgment of a lower court, it must be so substantial or material as to affect the props of the matter, see Sule vs. State (supra); Tanko vs. State (supra). Going by the prescription of section 251 (1) of the Evidence Act, 2011 (then section 227 (1) of the Evidence Act, 2004), wrongful admission of evidence shall not of itself be a ground to upturn a decision or judgment, where it appears to the appellate court that the evidence cannot reasonably have affected the decision which would have been the same without that wrongly admitted evidence, see Archibong vs. State (2006) 14 NWLR (pt.1000) 349. When those improperly received exhibits are excluded from the case, the unchallenged, uncontroverted and credible eye witness evidence of PW3 clearly demonstrated and fixed the appellants as the perpetrators of the heinous and rampant offences of criminal conspiracy and armed robbery levelled against them. Put starkly, the absence of exhibits 4, 5 and 6 does not exculpate the appellants when the direct testimonies of PW3 establish, beyond reasonable doubt, their culpability for those offences of criminal conspiracy and armed robbery that are menaces to the fragile Nigerian society. In the circumstance, I will be loath to upset the judgment of the lower court since the expunction of those exhibits has left it, the judgment, unscathed.
On the whole, given the reasons advanced in this judgment, I hold that there is no jot of merit in the appeal. It is ill-fated. Consequently, I dismiss the appeal. For the avoidance of doubt, I affirm the decision of the lower court convicting and sentencing each of the appellants to two years imprisonment and death sentence for the offences of criminal conspiracy and armed robbery respectively.
AGUBE, J.C.A.: I have been privileged to read the draft of the judgment just delivered by my learned brother O.F. Ogbuinya JCA; and am in total agreement with his reasonings and conclusion hat this Appeal lacks merit and should be accordingly dismissed.
My Lord has competently and assiduously dealt with all the issues that arose at the hearing of the appeal and appropriately held that from all ramifications, the prosecution had proved its case beyond reasonable doubt particularly with the cast-iron evidence of the PW3 which alone could ground the conviction of the Appellants.
The Appellants’ presumption of innocence was debunked and they had the bounding duty to proffer evidence to establish reasonable doubt in the mind of the court, which they failed to do. The learned trial Judge therefore was right in line with Section 135 (3) of the Evidence Act, 2011, the cases of Arogundade v. The State (2009) 6 NWLR (pt.1136) at 165; Akinmogun v. The State (2006) 6 NWLR (Pt.662) 608 at 639 per Igu, JSC; Adeniyi v. The State and Adepetu v. The State; all cited by my learned brother, to find the Appellants guilty and sentenced them to death accordingly.
In the light of the foregoing and the more elaborate reasons given in my learned brothers illuminating and analytical lead Judgment, I also shall dismiss the appellants’ appellant and hold the judgment of the lower court convicting and sentencing the Appellants to the terms of imprisonment and to death for the offences of criminal conspiracy and armed robbery.
MBABA, J.C.A.: I have had the privilege of reading, in draft, the lead judgment by my learned brother Obande F. Ogbuinya JCA, just delivered, and I agree with his reasoning and conclusions, that the prosecution had established the offences against the Appellants as required by law.
Even where the manner with which the Police obtained the alleged voluntary confessional statements (exhibits 4, 5 and 6) from the Appellants was faulted for being induced, the bare facts and evidence of commission of the crime, as told by the PW3 and collaborated by the acts of the 1st Appellant, who, when arrested, mentioned the names of his partners in crime (the other Appellants) and led the Police to the recovery of the bag of the PW3 which they snatched at gun point, was enough to pin the Appellants to the spot of crime and the offence.
For this and the fuller reasons elaborately marshalled out in the rich and flowery judgment of my learned brother in the lead judgment, I, too, dismiss the appeal and affirm the judgment of the learned trial court I also abide by the consequential orders in the lead judgment.
Appearances
Ikenna Okoli, Esq (With him, A. S. Ishola, Esq.)For Appellant
AND
J. A. Mumini, Esq., DPP, Ministry of Justice, Kwara State (with him, A. A. Daib (PSC) and Mrs. B.A. Baraje (PSC)For Respondent
