MICHAEL v. STATE (2021)

MICHAEL v. STATE

(2021)LCN/15120(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Wednesday, May 26, 2021

CA/IB/153C/2019

Before Our Lordships:

Jimi Olukayode Bada Justice of the Court of Appeal

Ugochukwu Anthony Ogakwu Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Between

CHIKWADO MICHAEL APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

BURDEN PLACED ON THE PROSECUTION IN A CRIMINAL TRIAL TO PROVE ITS CASE AGAINST THE ACCUSED PERSON BEYOND REASONABLE DOUBT

It is trite law that the Prosecution in a Criminal trial is required to prove its case against the accused person beyond reasonable doubt. See Section 135 (1) of the Evidence Act 2011 and the following cases:- – FRN VS ABUBAKAR (SUPRA). – ABIRIFON VS STATE (2013) 13 NWLR PART 1372 PAGE 619. – SMART VS STATE (2016) 9 NWLR PART 1517 PAGE 447. PER JIMI OLUKAYODE BADA, J.C.A.

WAYS BY WHICH THE ONUS OF PROOF PLACED ON THE PROSECUTION MAY BE DISCHARGED

In the discharge of the onus of proof there are three ways by which the Prosecution can prove the commission of a crime. (i) By Confessional Statement (ii) By evidence of eye witness or witnesses (iii) By circumstantial evidence where Confessional Statement is lacking. PER JIMI OLUKAYODE BADA, J.C.A.

ESSENTIAL INGREDIENTS OF THE OFFENCE OF ARMED ROBBERY THAT MUST BE PROVED BEYOND REASONABLE DOUBT

The position of the law is that whenever an accused person is charged with the offence of Armed Robbery, the burden of proof is on the Prosecution to prove the following ingredients of the offence of Armed Robbery beyond reasonable doubt. (i) That there was a robbery or series of robberies (ii) That the said Robbery was an Armed Robbery. (iii) That the Appellant was one of those who took part in the Armed Robbery. See the following cases:- – AJAYI VS STATE (Supra) – ATTAH VS STATE (2010) 10 NWLR PART 1205 PAGE 190. – OSUAGWU VS THE STATE (2013) 5 NWLR PART 1347 PAGE 360, (2013) 1-2 S.C. PART 1 PAGE 37. PER JIMI OLUKAYODE BADA, J.C.A.

NATURE OF A CONFESSIONAL STATEMENT THAT CAN BE SUFFICIENT TO CONVICT AN ACCUSED

In the case of – AKPA VS STATE (2008) 14 NWLR PART 1106 PAGE 72 it was held among others that an accused person can be convicted on his Confessional Statement alone when same is positive, direct and proved. See also the case of – NWEZE VS STATE (2018) 6 NWLR PART 1615 PAGE 197 AT 210 PARAGRAPHS E-F. PER JIMI OLUKAYODE BADA, J.C.A.

WHETHER A JUDGE CAN RELY UPON ON A CONFESSIONAL STATEMENT NOT TENDERED AS EXHIBITS DURING TRIAL

In the case of – ESANGBEDO VS STATE (1989) 4 NWLR PART 113 PAGE 57 AT 66 PARAGRAPH F it was held by the Supreme Court among others as follows:- “We cannot look at the extra – judicial statements of PW1, PW2, PW4 and PW9 which were not tendered as Exhibits during trial, because those statements cannot be legal evidence. An Appellate Court is bound to base its consideration of every appeal before it upon legal evidence upon which the Court below acted. Even in the Court of trial the only proper use that could have been made of those extra-judicial statements of witnesses was to have used them for cross-examination of those witnesses in order to discredit their testimony.” As stated earlier in this Judgment, the Learned trial Judge relied on a Confessional Statement which was not tendered in evidence to convict the Appellant. This is wrong because a Judge is not entitled to convict an accused person on a Confessional Statement not proved before him to have been made by the accused person voluntarily. See the case of:- PEOPLE OF LAGOS STATE VS MOHAMMED UMARU (2014) 7 NWLR PART 1407 PAGE 584. PER JIMI OLUKAYODE BADA, J.C.A.

JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of High Court Ogun State, Ijebu-Ode Judicial Division in Charge NO. HCJ/2C/2014: THE STATE VS (1) EJIOFOR JOSHUA (2) CHIKWADO MICHAEL delivered on 7/4/2017 wherein the Appellant was found guilty of the offence of Armed Robbery contrary to Section 1 (2)(a) of the Robbery and Firearms (Special Provision) Act Cap R 11 Laws of the Federation of Nigeria 2004 and sentenced to death by hanging.

Briefly the facts of the case according to the Prosecution is that PW1 Ariyo Alade Ibinu a commercial driver stopped for his passengers on 22/11/2012 to eat at Ijebu-Ode toll gate when the Appellant and others accosted and robbed him of his handset while armed with a gun. He raised alarm which attracted the vigilante personnel around. The Appellant was apprehended and handed over to the Police.
The case was later charged before the trial Court where he denied the charge.

At the conclusion of hearing, the Learned trial Judge in a Judgment delivered on 7/4/2017 relying on the Confessional Statement of the Appellant which was not

tendered in evidence convicted the Appellant and sentenced him to death.
The Appellant who is dissatisfied with the Judgment of the trial Court appealed to this Court.

The Learned Counsel for the Appellant formulated three issues for the determination of the appeal. The said issues are reproduced as follows:-
“(1) Whether the trial Judge was right to have relied on a Confessional Statement not tendered in evidence (Distilled from grounds 1 and 5 of the Notice of Appeal).
(2) Whether the Learned trial Judge was right to have relied on the evidence of PW1 to convict the Appellant (Distilled from grounds 3, 4 and 7 of the Notice of Appeal).
(3) Whether the trial Court was not in breach of the principle of fair hearing when it discountenanced the evidence of the Appellant. (Distilled from ground 2 of the Notice of Appeal).”

In her own case, the Learned Counsel for the Respondent formulated a sole issue for the determination of the appeal. The said issue is reproduced as follows:-
“Whether the trial Court was right to have relied on the testimony of PW1 when convicting the Appellant for the offence of conspiracy

to commit Armed Robbery and Armed Robbery.”

At the hearing of this appeal on 15/3/2021, the learned Counsel for the Appellant stated that the appeal is against the Judgment of Ogun State High Court delivered on 7/4/2017. Two Notices of Appeal were filed on 7/4/2017 and 7/6/2017 respectively. Learned Counsel for the Appellant relied on the Notice of Appeal filed on 7/6/2017. The Notice of Appeal filed on 7/4/2017 is therefore struck out.

The record of appeal was transmitted on 17/4/2019 and deemed as properly transmitted on 9/7/2020. The Appellant’s brief of argument was filed on 7/7/2020 and deemed as properly filed on 9/7/2020. The Appellant’s Reply brief was filed on 27/10/2020 and deemed as properly filed on 15/3/2021.

The Learned Counsel for the Appellant adopted and relied on the said Appellant’s brief as well as appellant’s reply brief as his argument in urging that the appeal be allowed.

The Learned Counsel for the Respondent on the other hand also referred to the Respondent’s brief of argument filed on 7/9/2020 but deemed as properly filed on 8/9/2020.
She adopted and relied on the said

Respondent’s brief as her argument in urging that the appeal be dismissed.

I have gone through the issues formulated for the determination of the appeal by Counsel for both parties and I am of the view that the issues formulated on behalf of the Appellant encapsulates the issue formulated on behalf of the Respondent.
I will therefore rely on the issues formulated on behalf of the Appellant in the determination of this appeal.

ISSUE NUMBERS 1, 2 AND 3 (Taken Together)
“(1) Whether the trial Judge was right to have relied on a Confessional Statement not tendered in evidence. (Distilled from grounds 1 and 5 of the Notice of appeal).
(2) Whether the trial Judge was right to have relied on the evidence of PW1 to convict the Appellant. (Distilled from grounds 3, 4 and 7 of the Notice of Appeal).
(3) Whether the trial Court was not in breach of the principle of fair hearing when it discountenanced the evidence of the Appellant. (Distilled from ground 2 of the Notice of Appeal).”

The Learned Counsel for the Appellant submitted that an accused person is presumed innocent until he is proved guilty by credible evidence

during trial. He went further that the duty is always on the Prosecution to prove beyond reasonable doubt the guilt of the accused person. He relied on the following cases – IDEH VS STATE (2019) 6 NWLR PART 1669 PAGE 479 AT 505 PARAGRAPHS A-C.
– FRN VS ABUBAKAR (2019) 7 NWLR PART 1670 PAGE 113 AT 130 PARAGRAPHS D-E.

It was contended on behalf of the Appellant that the Confessional Statement relied upon was not tendered in evidence. The case of – THE PEOPLE OF LAGOS STATE VS UMARU (2014) 7 NWLR PART 1407 PAGE 584 AT 611 TO 613 was relied upon.

The Learned Counsel for the Appellant referred to the testimony of PW1 who stated that the incident happened at night and there was no light. He went further that from the evidence of PW1, it is obvious that he was not the person that identified the armed robbers.
He therefore submitted that it is unsafe for the evidence of PW1 to be relied upon in convicting the Appellant.

Apart from the foregoing, the Confessional Statement of the Appellant not being an evidence before the Court cannot serve the purpose of corroboration, he therefore urged that the first issue be resolved in favour

of the Appellant.

On the second issue, the Learned Counsel for the Appellant submitted that the evidence of PW1 is too remote to be solely relied upon to convict the Appellant. He went further that there is need for the Prosecution to have called vital witnesses like the people who identified the robbers at the scene of robbery, the vigilante group that arrested the robbers and the Police officer who investigated the robbery. He relied on the following cases-
– OKOROJI VS STATE (2005) 1 NCC PAGE 279 AT 294-295.
– FRN VS ABUBAKAR (SUPRA) AT 129 PARAGRAPHS E-F.
– BOLANLE VS STATE (2005) 1 NCC PAGE 342 AT 354-355.
– GBADAMOSI VS STATE (2019) 4 NWLR PART 1661 PAGE 29 AT 57-58 PARAGRAPHS H-C.
– YAHAYA VS STATE (2005) 1 NCC PAGE 120 AT 134.

The Learned Counsel for the Appellant submitted that the evidence of PW1 lacks any evidential value and cannot be solely relied upon to convict the Appellant. Concerning the third issue whether the trial Court was not in breach of the Principle of fair hearing when it discountenanced the evidence of the Appellant.

The Learned Counsel for the Appellant submitted that the trial Court has a

duty to evaluate the evidence adduced by the parties. He relied on the case of – LAGGA VS SARHUNA (2008) 16 NWLR PART 1114 PAGE 427 AT 461.

He argued that both parties adduced evidence before the trial Court but that the Court evaluated the evidence of the Respondent, while that of the Appellant was discountenanced, and as a result the Principles of fair hearing was not observed.

Again, he referred to the extra-judicial statement of the Appellant which was not tendered in evidence. It was contended that the Appellant was not given the opportunity of stating whether he made the statement in the first place or whether the statement was made voluntarily. He relied on the following cases- IGWE VS STATE (2019) 3 NWLR PART 1660 AT PAGE 417 AT 427.
– UWAZURIKE VS A. G. FEDERATION (2008) 10 NWLR PART 1096 PAGE 444 AT 463 PARAGRAPHS G-B.

It was also argued on behalf of the Appellant that the Appellant raised the defence of Alibi but that the Respondent failed to investigate same. It was therefore submitted that the Appellant ought to have been acquitted by the trial Court.
The learned Counsel for the Appellant finally urged that this issue

be resolved in favour of the Appellant.

The Learned Counsel for the Respondent in her response to the submission of Appellant’s Counsel submitted that the onus of proof is always on the Prosecution to prove its case against an accused person beyond reasonable doubt, but that the onus of proof placed on the Prosecution is not beyond all shadow of doubt. She relied on the case of – ABIRIFON VS THE STATE (2013) 9 SCM PAGE 1 AT 5.

She submitted that in the case of AJAYI VS STATE (2013) 3 SCM PAGE 1 the ingredients of the offence of Armed Robbery were enumerated as:-
(a) That there was a robbery or series of robberies.
(b) That the robbery was an Armed Robbery.
(c) That the accused was one of the armed robbers.

It was contended on behalf of the Respondent that with the testimony of PW1, the Respondent proved all the three ingredients of the offence of Armed Robbery.

The Learned Counsel for the Respondent submitted that identification parade is unnecessary in this case since there is eye witness account that fixed the Appellant to the scene of crime. He referred to the case of – ADEYEMI VS THE STATE (2014) 11 SCM page 1.

– ADEBAYO VS THE STATE (2014) 8 SCM PAGE 34 AT 55 PARAGRAPHS C-G

She submitted that PW1 the victim of the Armed Robbery that occurred on 22/11/2012 testified and that his evidence established that the Appellant and 1st accused person robbed PW1. She urged this Court not to disturb the findings of the trial Court. It was submitted that Court can act on the evidence of a single witness if the witness is believed to convict an accused. She relied on the following cases:-
– NKEBISI & ANOTHER VS THE STATE (2010) 3 SCM PAGE 170 AT 174.
– AKINLOLU VS THE STATE (2015) LPELR – 25986 SC.
– USMAN VS THE STATE (2018) LPELR – 46568 CA.
– ABDULLAHI VS THE STATE (2018) LPELR – 44455 (CA)
She finally urged this Court to dismiss the appeal.

The Learned Counsel for the Appellant in his brief submitted that PW1 being a victim to robbery is a vital witness whose sole evidence can sustain a conviction, provided the Court warns itself of the danger of relying on the evidence of such witness. He relied on the case of:-STATE VS AZEEZ (2008) 35 NSCQR PAGE 426 AT 475 PARAGRAPHS C-F.

It was also submitted on

behalf of the Appellant that the Prosecution is duty bound to call other witnesses.

On the issue of breach of fair hearing, it was submitted that since the Respondent failed to respond to that issue, the implication in law is that such issue has been conceded by the Respondent. Learned Counsel for the Appellant relied on the case of:- EJIOFOR VS UZORDIKE (2008) 17 NWLR PRT 1117 PAGE 470 AT 480.
He finally urged this Court to allow the appeal and set aside the conviction of the trial Court.

RESOLUTION
It is trite law that the Prosecution in a Criminal trial is required to prove its case against the accused person beyond reasonable doubt. See Section 135 (1) of the Evidence Act 2011 and the following cases:-
– FRN VS ABUBAKAR (SUPRA).
– ABIRIFON VS STATE (2013) 13 NWLR PART 1372 PAGE 619.
– SMART VS STATE (2016) 9 NWLR PART 1517 PAGE 447.

In the discharge of the onus of proof there are three ways by which the Prosecution can prove the commission of a crime.
(i) By Confessional Statement
(ii) By evidence of eye witness or witnesses
(iii) By circumstantial evidence where Confessional Statement is lacking.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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The Appellant in this case was charged and convicted for the offence of Armed robbery and sentenced to death.

The position of the law is that whenever an accused person is charged with the offence of Armed Robbery, the burden of proof is on the Prosecution to prove the following ingredients of the offence of Armed Robbery beyond reasonable doubt.
(i) That there was a robbery or series of robberies
(ii) That the said Robbery was an Armed Robbery.
(iii) That the Appellant was one of those who took part in the Armed Robbery.
See the following cases:-
– AJAYI VS STATE (Supra)
– ATTAH VS STATE (2010) 10 NWLR PART 1205 PAGE 190.
– OSUAGWU VS THE STATE (2013) 5 NWLR PART 1347 PAGE 360, (2013) 1-2 S.C. PART 1 PAGE 37.

In proof of the charge against the Appellant, the Prosecution called only one witness i.e PW1 Ariyo Alade. He testified among others as follows:-<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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“…As I went to eat and returned to the vehicle, I then asked my junior and the person we were carrying his load on that day to go and eat, before they came back from where they went to eat, armed robbers accosted me where I was lying on top of the trailer. I thought maybe they needed my help that very day. When I saw that they pulled out guns I realized it is not help they came for and they were asking for money. When I was shouting the one in the middle dragged me down from where I was lying and they started beating me, so I started shouting, so some vigilante people came to my rescue. It is the 2nd accused person who dragged me down and the third accused put his gun on me. They took my phone and beat me up seriously. The people that came to rescue me pursued them and recognized one of the robbers. We reported the case to vigilante in the area, so the 2nd

accused was apprehended. He is well known for such acts in the area. The 2nd and 3rd accused were arrested. I saw both of them after their arrest. The vigilante handed them over to the Policemen. They even went with us to the Police Station.
Under Cross Examination
…The incident happened at night. It was on the road side …… There was no light in the area…”

A careful reading of the testimony of PW1, the only witness and victim of the robbery showed that the incident happened at night and there was no light.

The Learned trial Judge sensing the inadequacy of the evidence of PW1 relied on the Confessional Statement of the Appellant to lend credence to the evidence of PW1 and subsequently convicted the Appellant.

Section 28 of the Evidence Act 2011 defined Confession as an admission made at any time by a person charged with a crime

stating or suggesting the inference that he committed the offence.
In the case of – AKPA VS STATE (2008) 14 NWLR PART 1106 PAGE 72 it was held among others that an accused person can be convicted on his Confessional Statement alone when same is positive, direct and proved.
See also the case of – NWEZE VS STATE (2018) 6 NWLR PART 1615 PAGE 197 AT 210 PARAGRAPHS E-F.

In this case under consideration, the Confessional Statement relied upon by the Trial Court was not tendered in evidence by the Respondent at the Trial Court.
In the case of – ESANGBEDO VS STATE (1989) 4 NWLR PART 113 PAGE 57 AT 66 PARAGRAPH F it was held by the Supreme Court among others as follows:-
“We cannot look at the extra – judicial statements of PW1, PW2, PW4 and PW9 which were not tendered as Exhibits during trial, because those statements cannot be legal evidence. An Appellate Court is bound to base its consideration of every appeal before it upon legal evidence upon which the Court below acted. Even in the Court of trial the only proper use that could have been made of those extra-judicial statements of witnesses was to have used

them for cross-examination of those witnesses in order to discredit their testimony.”
As stated earlier in this Judgment, the Learned trial Judge relied on a Confessional Statement which was not tendered in evidence to convict the Appellant. This is wrong because a Judge is not entitled to convict an accused person on a Confessional Statement not proved before him to have been made by the accused person voluntarily.
See the case of:- PEOPLE OF LAGOS STATE VS MOHAMMED UMARU (2014) 7 NWLR PART 1407 PAGE 584.
The alleged Confessional Statement relied upon by the trial Court is not a legal evidence and cannot be acted upon by the trial Court. It is also not eligible for purpose of corroborating PW1’s evidence.
There is no doubt that an accused person can be convicted based on the evidence of a single witness. It is also the law that a Confessional Statement once admitted in evidence becomes part of the case for the Prosecution which the trial Court is bound to consider in determining the probative value of the totality of the evidence adduced by the Prosecution. However, the alleged Confessional Statement relied upon by the Trial

Court failed the necessary test because it was not tendered in evidence.

Furthermore, in this case the PW1, a victim of the robbery testified that the incident happened at night and there was no light. All these point to the fact that the evidence of PW1 cannot totally be relied upon since the charge carries the weight of a death sentence as penalty.

A careful reading of the testimony of PW1 would also reveal that he was not the person that identified the armed robbers, he only saw the two accused persons after they were arrested by the people who came to rescue him. The vigilante people who assisted in arresting the accused persons were not called as witnesses and unfortunately, the Confessional Statements that could have been used to corroborate the testimony of PW1 was not tendered in evidence.

Furthermore, there are two pieces of evidence before the Trial Court (1) the evidence of PW1 (2). The testimony of the Appellant.

I am of the view that the evidence of the PW1 i.e. the victim is not strong enough to secure a conviction. This is because according to PW1 the robbery happened in the night and it was those who came to rescue him that

arrested the robbers but none of them was called as a witness.

The Learned Trial Judge accepted the evidence of PW1 and convicted the Appellant and rejected the testimony of the Appellant as an attempt to create Alibi. (On page 149-150 of the Record of Appeal), the Trial Court held among others as follows:-
“…an Alibi cannot avail the two (2) accused persons as it was not contained in their extra-Judicial Statements attached to the proofs of evidence such that it can be investigated by the Prosecution nor was the Alibi sustainable at all.”

It is clear from the findings above that the Trial Court evaluated the evidence of the Appellant against a non-existing document i.e. the extra-judicial statement which was not tendered in Court. The extra-judicial statement not yet tendered in evidence cannot in my view be used to measure the veracity of the Appellant testimony.

It is therefore my view that the testimony of PW1 is not strong enough to secure conviction in an offence that carries death sentence as penalty. As for the Extra Judicial Statement i.e. the Confessional Statement of the Appellant, it was not tendered in

evidence at the trial Court, therefore it is not a legal evidence to be relied upon. The procedure adopted by Learned Trial Judge is wrong.

Consequent upon the foregoing, Issue Numbers 1, 2, and 3 are resolved in favour of the Appellant and against the Respondent.

That is not the end of the matter. What is the appropriate order to be made in the interest of justice to the parties concerned in this case? Should it be to remit the case to the trial Court for fresh trial? A decision on whether a fresh trial is to be ordered is determined by the peculiar facts and circumstances of each case.
A retrial would be ordered if the Appellant was charged for a capital offence and the evidence reveals a likely conviction. See

– MOHAMMED VS STATE (2019) LPELR – 47632 (SC)
– VUYOR VS THE STATE (2014) 2 NWLR PART 1390 PAGE 196.
– MOHAMMED VS STATE (2013) 5 NWLR PART 1347 PAGE 315.
In ABODUNDE VS THE QUEEN (1959) 4 FSC PAGE 70 the applicable principles to be taken into account where a fresh trial or retrial is to be ordered were stated as follows:
“Although the Rules guiding an Appeal Court in ordering a retrial are not

exhaustive and may be added or modified from time to time, an Appeal Court would order a retrial if it is satisfied as to the following:-
(1) That there has been such an error in law or an irregularity in procedure which neither renders the Trial a nullity nor makes it possible for the Appeal Court to say there has been no miscarriage of justice.
(2) That apart from the error of law or irregularity in procedure the evidence before the Court discloses a substantial case against the accused.
(3) That there are no special circumstances which would make it unjust to put the accused on Trial a second time.
(4) That the offence for which the accused is charged and their consequences are serious in nature and
(5) That to refuse an Order of retrial would occasion a greater injustice than to grant it.”
The Appellant in this case was charged with Armed Robbery which carries death penalty. He was convicted by the Trial Court based upon a wrong procedure. As soon as a fresh Trial is ordered, the appropriate procedure would be followed and this will be in the interest of Justice to both parties concerned in the case.

Consequent upon the foregoing, I am of the view that a fresh Trial would not occasion any injustice to the Appellant.
See –YAHAYA VS. THE STATE (2002) 3 NWLR PART 734 PAGE 289 AT 305.

In the result, this Appeal is meritorious and it is allowed. The Judgment of the Trial Court in charge No – HCJ/2C/2014 – THE STATE VS. (1) EJIOFOR JOSHUA (2) CHIKWADO MICHAEL delivered on 7/4/2017 is hereby set aside because of the wrong procedure adopted by the Trial Court. In its place it is hereby ordered that the case is remitted to the High Court of Justice, Ogun State for a fresh Trial by another Judge to be assigned by the Chief Judge of Ogun State, not being Akinbiyi J.
Appeal allowed.

UGOCHUKWU ANTHONY OGAKWU, J.C.A.: The leading Judgment of my learned brother, Jimi Olukayode Bada, JCA, which has just been delivered was made available to me in draft.
I am allegiant to the reasoning and conclusion in the said Judgment. I adopt the same as mine. I have nothing further to add.

FOLASADE AYODEJI OJO, J.C.A.: I have read before now the judgment just delivered by my learned brother,

JIMI OLUKAYODE BADA, JCA. In his judgment, the learned trial Judge relied on a confessional statement allegedly made by the Appellant to corroborate the evidence given by the Prosecution’s sole witness. Now, corroboration is an independent testimony, direct or circumstantial that support or strengthen the assertions of the complainant not only that an offence has been committed but that it was committed by the accused person. Such corroborative evidence must however be credible. It is trite that the judgment of a Court must be based on credible evidence adduced at the trial. See Iko Vs. State (2001) 14 NWLR (Pt. 732)195; Isah vs State (2007) 12 NWLR (Pt. 1049) 582; Ugheneyovwe vs. State (2004) 12 NWLR (Pt. 888)626.

In the instant appeal, the confessional statement relied upon by the learned trial Judge was not admitted in evidence. It was not before the Court. By relying on it, the learned trial Judge committed a grievous procedural error. It was not based on evidence before him.

It is for the above and the fuller reasons marshalled in the lead Judgement that I agree with my learned brother that the appropriate order to make is to order fresh trial

before the High Court of Ogun State by another Judge of the Court other than Akinbiyi, J.

Appearances:

ADEREMI OGUNTOYE with him, MR. ABRAHAM OLADIPUPO For Appellant(s)

MRS. F. E. BOLARINWA ADEBOWALE For Respondent(s)