OBA OLOWOOKERE & ANOR V. THE STATE (2011)

OBA OLOWOOKERE & ANOR V. THE STATE

(2011)LCN/4472(CA)

In The Court of Appeal of Nigeria

On Thursday, the 14th day of April, 2011

CA/IL/C.62/2010

RATIO

BURDEN OF PROOF: WHETHER THE BURDEN OF PROOF IN CRIMINAL CASES IS BEYOND REASONABLE DOUBT AND WHETHER ANY DOUBT RAISED IN FAVOUR OF THE ACCUSED MUST BE RESOLVED IN HIS FAVOUR WHICH OUGHT TO LEAD TO HIS DISCHARGE AND ACQUITTAL

TRIAL WITHIN TRIAL: CIRCUMSTANCE WHERE THE COURT MUST CONDUCT A TRIAL WITHIN A TRIAL

In the case of Onyejekwe v. The State (1992) 3 NWLR (part 230) 444, the apex Court, per Onu, J.S.C. the erudite Emeritus jurist held thus: “Where a confessional statement is sought to be tendered in evidence and counsel to the accused who is alleged to have made the confessional statement objects to its being tendered in evidence on the ground that the confessional statement is not voluntarily made the court must conduct a trial within a trial to determine whether it is voluntarily made. Obidiozo v. State (lgg7) 3 NWLR (pt. 67) 748 referred to.) (p. 453, para. H).” PER TIJJANI ABDULLAHI, JCA

CROSS-EXAMINATION: CONSEQUENCE OF THE FAILURE OF THE COUNSEL TO THE ACCUSED PERSON TO CROSS EXAMINE A PROSECUTION WITNESS

In the case of Alor v. The State (1996) 4 NWLR (Part 445) 726 at 739, the Enugu Division of this Court held that where a Counsel for an accused person fails to cross examine a prosecution witness, the evidence of the cross-examined witness remains unchallenged to the extent that it may incriminate the accused. The Court is powerless to reject such evidence merely because it was not challenged. On the contrary, it must act on it unless it is otherwise controverted by other pieces of evidence. Although, the above quoted dicta was in respect of a prosecution witness, I am of the firm that it can and should equally be extended to the defence. In the instant case, the prosecution herein failed to cross examine the Appellant thereby rendering his evidence unchallenged to the extent that it may exculpate the 1st Appellant. PER TIJJANI ABDULLAHI, JCA

UNCHALLENGED AND UNCONTROVERTED EVIDENCE: WHETHER THE COURT HAS A DUTY TO ACT ON AN UNCHALLENGED AND UNCONTROVERTED EVIDENCE

…in the case of Magaji v. Nigerian Army (2008) 8 NWLR (Part 1089) 338, at 393 it was held that where there is unchallenged and uncontroverted evidence, a Court has a duty to act on it where it is credible. PER TIJJANI ABDULLAHI, JCA

FAIR HEARING: ESSENCE OF THE RIGHT OF A PARTY TO FAIR HEARING BEFORE THE DETERMINATION OF HIS CIVIL RIGHTS OR OBLIGATIONS

…the well-known principle of law pertaining to fair hearing as reiterates in the case of Lambert Iwuoha v. Felix Okoroihe (1996) 2 NWLR (part 429) P.231, Rowland, JCA (of blessed memory) herd thus: “It is a fundamental requirement of our adversary system of administration of justice that a party to the litigation before the court must be heard before the court can determine his civil rights or obligations before it. The right to be heard is so fundamental a principle of our adjudicatory process that it cannot be compromised on any ground. Nwokoro v. Onuma (1990) 3NWLR (Part 136) 22 at 35, referred to and applied.” PER TIJJANI ABDULLAHI, JCA

FAIR HEARING/FAIR TRIAL: WHETHER THERE IS A DIFFERENCE BETWEEN FAIR HEARING AND FAIR TRIAL; WHAT CONSTITUTE THE TEST OF FAIR HEARING

It has also been held that a fair hearing must involve a fair trial, and a fair trial of a case consists of the whole hearing. There is no difference between the two. The true test of fair hearing, is the impression of a reasonable person who was present at the trial, whether from his observation, justice has been done in the case. See Muhammed v. Kano N. A. (1968) 1 All NLR, 424 at 426. PER TIJJANI ABDULLAHI, JCA

CROSS-EXAMINATION: THE AIM OF CROSS-EXAMINATION

JUSTICES

TIJJANI ABDULLAHI Justice of The Court of Appeal of Nigeria

SOTONYE DENTON-WEST Justice of The Court of Appeal of Nigeria

CHIMA CENTUS NWEZE Justice of The Court of Appeal of Nigeria

Between

1. OBA OLOWOOKERE
2. GBENGA ORIYOMI ADEOYE Appellant(s)

AND

THE STATE Respondent(s)

TIJJANI ABDULLAHI, JCA, (Delivering the Leading Judgment): The appeal under consideration is against the judgment of M.A. Folayan (J) of the High court of Justice, Ilorin Division, Kwara State, delivered on the 22nd day of April, 2010 convicting the Appellant, Oba Olowookere for giving information to armed robbers contrary to Section 6(a) of the Robbery and Firearms special Provision Act, Cap. R II laws of the Federation of Nigeria, 2004.
By an application dated 9th day of January, 2008 brought pursuant to Section 185(9b) of the Criminal Procedure (Application) for leave to prefer a charge in the High Court Rules, 1970, leave was sought to prefer a charge against Gbenga Oriyomi Adeoye (1st Accused person), Abdulrauf Agboola (the deceased 2nd Accused) and the 1st Appellant herein, Oba Olowookere (3rd Accused person) on a three counts charge of:
(a) Conspiracy to commit armed robbery;
(b) Armed Robbery; and
(c) Giving information to armed robbers under Sections 6(a), 1(2)(a) and 6(b) of the Armed Robbery & Firearms (special Provisions) Act respectively.
The Appellant as can be gleaned from the records was charged for the offences of conspiracy to commit robbery and giving information to armed robbers under the relevant section of the Act as stated above.
The case proceeded to hearing in the course of which the 2nd accused whilst on bail was killed by police in a shoot out during another armed robbery operation. The case therefore continued against the 1st accused and the Appellant at the end of which the learned trial judge found the Appellant guilty as charged wherein she held thus:
“On this charge against the 2nd accused (Olowookere) under Section 6(a) of the Robbery and Firearms Special Provision ) Act, considering all the facts in evidence before this Court and my view on the confessional statement of 2nd accused tendered and admitted as exhibit s in this case
I found him guilty under Section 6(a) of the Robbery and Firearms (Special provision) Act Cap R II 2004 and he is accordingly convicted as charged.
The 1st accused for all my considered view in this judgment I hereby found him guilty of the 1st count charge under Section 6(b) of the Robbery and Firearms (Special Provision) Act Cap R II 2004 and he is hereby convicted as charged.
On the 2nd charge also under Section 1(2)(a) of Robbery and Firearms (Special provision) Act Cup R II Laws of the Federation of Nigeria. For all the reasons and considered facts in this judgment, I find 1st accused guilty and he is accordingly convicted as charged.”
It is instructive to note at this stage that though the trial judge convicted the Appellant on the charge of giving information under Section 6(a) of the Robbery and Firearms (Special Provisions) Act, Cap II nothing was said in respect of count one, along with the charge of conspiracy. It is also noteworthy to observe that the learned trial judge was silent on pronouncement as to the prescribed sentence if any imposed on the Appellant (see pages 103 – 135 of the Records).
Aggrieved with the decision of the learned trial judge outlined supra, the Appellant filed a notice of Appeal on 11th June, 2010 which carries three grounds of appeal. The said grounds shorn of their particulars read thus:
GROUND ONE
The learned trial Judge erred in law when he held that the prosecution has proved the offence of armed robbery beyond reasonable doubt against the Appellant.
GROUND TWO
The learned trial judge erred when he relied on exhibit P5, referred to as the Appellant’s confessional statement to the Police as the solely (sic) in convicting the Appellant.
GROUND THREE
The learned trial Judge erred in law when he found the appellant guilty of the offence charged regardless of the fact the prosecution failed to make its material witness available to enable the appellant cross examine him.”
Parties, in compliance with the rules of this court, filed and exchanged briefs. In a brief settled by Olalekan Yusuf, Esq, learned counsel distilled two issues for determination from the grounds as follows:
“1. Whether the learned trial judge was right to have found the appellant guilty in the light of the evidence adduced at the trial, particularly the appellant’s extra judicial statement. (Related to Grounds 2 and 1)
2.Whether the proceedings that transpired at the trial does not violate the appellant’s right to fair hearing and fair trial. (Related to Ground 3)’
Learned counsel for the Respondent, in a brief settled by J.A. Mumuni, Director public prosecution, Ministry of Justice, Kwara State, the two issues distilled by the Appellant were adopted as their own issues for determination.
Learned Counsel for the Appellant adopted his brief dated and filed on 30th day of July, 2011 and urged us to allow the appeal and set aside the judgment of the lower Court. Learned Counsel for the Respondent equally adopted his brief of argument dated and filed on the 1st day of September, 2010 and urged us to dismiss the appeal.
Issue No. 1 is whether the learned trial judge was right to have found the Appellant guilty in the light of the evidence adduced at the trial, particularly the Appellant’s extra-judicial statement. In arguing this issue, learned Counsel for the Appellant contended that, under the Nigeria Criminal System, on accused person has a fundamental right to presumption of his innocence by virtue of the provisions of Section 36(5) of the 1999 Constitution. It is his further contention that the burden is on the prosecution to prove the guilt of an accused person and it never shifts. The slightest of any doubt shall be resolved in favour of an accused person. For this submission, learned Counsel relied on the case of Aroyewan vs. C.O.P. (2004) 16 NWLR (899) 414 at 432, paras D – E.
Learned Counsel then submitted that in the instant case, the prosecution failed to discharge this onerous burden placed on it against the Appellant. The guilt of the Appellant, learned Counsel went on, was not established to merit the conviction imposed on the Appellant by the learned trial judge.
Learned Counsel after summarizing the evidence adduced by the prosecution in support of their case against the Appellant, submitted that none of the testimonies of the prosecution witnesses as can be gathered from the record of proceedings convincingly linked the Appellant with the offence he was charged with. Learned Counsel took the view that the confessional statement relied upon by the learned trial judge in convicting the Appellant was objected to on the ground that it was not voluntary but yet the learned trial judge erroneously admitted same in evidence.
It is the submission of the learned Counsel that the Appellant gave evidence of torture before his statement was obtained by the police and he (Appellant) further testified that he did not know the complaint or his house. Though this piece of evidence was never challenged at the Court below by cross-examining the Appellant to ascertain its veracity, the learned trial judge, surprisingly, the learned Counsel went on, convicted the Appellant. This, learned Counsel went on, is contrary to the decision of this Court, Enugu Division in the case of Alor vs. The State (1996) 4 NWLR (Part 445) 726 at 739, paras F G. Learned Counsel also placed reliance on the case of Magaji vs. Nigerian Army (200s) 8 NWLR (Part 1089) 338 at 393 and argued that where there is unchallenged and uncontroverted evidence, o Court, has a duty to act on it where it is credible. Learned Counsel further argued that, the learned trial judge relied on this authority in favour of the prosecution and there is no reason why the same discretion ought not have been extended to the unchallenged evidence of the Appellant.
Learned Counsel took the view that the core piece of evidence that the trial Court relied upon to convict the Appellant was Exhibit 5, the so-called confessional statement of the Appellant. Though confessional statement when proved to be positive and direct, could ground a conviction, in the case in hand, the statement having been timeously and aptly objected to as not being voluntarily made the trial Court ought to have ordered for trial-within trial to determine the merit or otherwise of the objection raised by the learned Defence Counsel. In support of this view learned Counsel relied on the cases of Tanko v. The State (2008) 16 NWLR (Part 1114) 591 at 628, paras, D – E; Nwachukwu vs. The State (2007) 17 NWLR (Part 902) 266 at 273, paras B – E; Nnabo v. The State (1992) 2 NWLR (Part 226) 716 at 727, paras G – H and Onyekwe v. The State (1992) 3 NWLR (Part 230) 444 at 453.
Learned Counsel for the Appellant also took the view that the statement of the Appellant, Exhibit 5, admitted and relied upon by the learned trial Court to erroneously convict the Appellant, is the only link that connected the Appellant with the offence charged. Learned Counsel is of the view that what is contained in that statement cannot be called in aid of the prosecution for the statement was not tendered in evidence before the Court. The trial-within-trial ordered by the Court to determine the voluntariness of the said statement before same could be admitted in evidence was aborted by the death of the 2nd accused person.
It is the submission of the learned Counsel that the presumption that if the trial had been conducted that the statement would have been inadmissible as a result of involuntariness and not otherwise ought to have been construed in favour of the Appellant. Alternatively, learned Counsel went on, this is a point that raises a reasonable doubt in favour of the Appellant. It is well established that where there is doubt in the evidence of the prosecution, the doubt should be resolved in favour of an accused person, leaned counsel further opined. In support of this submission, learned Counsel relied on the case of Edoho v. The State (2004) 5 NWLR (Part 865) 17 at 51, paras G – H.
Learned Counsel referred to the judgment of the learned trial judge on page 132 of the Record wherein the learned trial judge held thus:
“In Nigeria today if one has not committed any wrong and he is not apprehensive of being on the search list of the police, it is not a common scene for people to start running away merely because the police arrives and park their vehicle by the road side. See page 132 of the Records.”
Learned Counsel strongly submitted that the above conclusion of the learned trial judge is grossly erroneous. Learned Counsel opined that it is not in doubt that the larger percentage of the nation’s citizenry is illiterate and hence most are ignorant of their rights. The 1st Appellant falls in this category. It is not unusual for persons of his station in life to be apprehensive and sometimes make a dart from the police not because they have committed any wrong but simply because they are either unsure or totally oblivious of their rights under the law. This is especially so when a squad of armed police officers abruptly parked their vehicle in an intimidating manner.
Learned Counsel urged us to resolve this issue in favour of the Appellant and against the Respondent.
For his part, learned Director of Public Prosecution, Counsel for the Respondent, alluding to paragraph 4.03 of the brief of the Appellant relating to the burden of proof which the Appellant canvassed not to have been discharged by the prosecution, submitted that the word proof beyond reasonable doubt does not and should not be mistaken for proof beyond every shadow of doubt. The indefatigable Director of Public Prosecution further submitted that, what the prosecution is expected to prove in order to succeed is to prove its case beyond reasonable doubt. Once the prosecution has proved the offence with the certainty of the law, he went on, that is, that an offence has been committed and that no other person, other than the accused person committed the offence, then the prosecution has established its case beyond reasonable doubt. For this submission, learned Counsel relied on the case of Mufutai Bakare v. The State (1987) 3 SC 1 at 5, per Obaseki JSC.
The learned Director, submitted that the Appellant confessed to the commission of the offence as can be seen in Exhibit 5, and that from the said Exhibit 5, the Appellant not only described the house of PW 2 to the gang of robbers but took them to the premises. Learned Counsel opined that, a clinical examination of the Appellant’s statement as contained in Exhibit 5 before the Court and the confession of the gang leader revealed that the learned trial judge’s conviction of the Appellant was the most proper in the circumstance.
Alluding to paragraph 4.4 of the Appellant’s brief, learned Counsel argued that, the Appellant wrongly asserted that none of the evidence of the prosecution witnesses indicted the Appellant. He went on to contend that the learned Counsel for the Appellant wrongly propounded theory of unchallenged evidence and held the view, wrongly that since the prosecution was not available to cross-examine him (Appellant) his evidence given in Court should be regarded as unchallenged. It is the submission of the learned Counsel that before a piece of evidence is regarded as unchallenged such evidence must be credible, positive, direct, cogent and of course reasonable. I however, learned Counsel went on the evidence led by the Appellant though not subjected to cross-examination remains incredible, unreasonable and unwarranted. The trial Court, learned Counsel went on, was right to have refused to be moved by it.
Learned Counsel for the Respondent contended that, for the trial Court to conduct trial-within-trial as canvassed by the Appellant, it is not enough merely to assert as done by the Appellant’s Counsel that the statement sought to be tendered is involuntary without more. It is his further contention that he (Appellant’s Counsel) must proffer before the trial Court facts or reasons which make such statements involuntary, which may either be inducement, threat or promise. The trial Court, learned Counsel went on, is not bound to assume reasons for its involuntariness but proceed to admit same in evidence. Learned Counsel for the Appellant also placed reliance on the case of Nnabo v. The State (1992) 2 NWLR (Pt. 226) 716 at 722 per Oguntade JCA (as he then was) to buttress his contention on this point.
On the submission that the said Exhibit 5 was not corroborated, learned Counsel submitted that the evidence of PW4, the statement of the first accused person on page 9 of the record and the peculiar circumstances of the case provide sufficient corroborative evidence for Exhibit 5. Reliance is placed on the case of Ikonne v. The State (2005) 5 NWLR (Pt. 658) 550 at 563 per Niki Tobi JCA (as he then was).
Learned Counsel took the view that much as it is the law that the onus of proof is on the prosecution, but where the prosecution as in this case, has led sufficient evidence fixing the accused at the scene of crime and stating the specific role played by the accused, then the burden of proof shifts from the prosecution to the accused to enter his defence no matter how weak. In the instant case the evidence of PW2 fixes the first and second accused persons at the scene of the crime at a specific time and date. It would not be out of place for the appellant and his cohorts to set a defence commensurate with the prosecution’s evidence and this was the thinking of the learned trial judge in making the observation copiously quoted in paragraph 4.16 of the appellant brief of argument.
It is the submission of the learned Counsel that the Appellant’s Counsel is wrong to have submitted that the statement of the 2nd accused person who was deceased remains the only link between him and the offence alleged. Learned Counsel submitted that, this assertion is not supported by the evidence before the Court. This is because the statement of the 1st accused person on page 9 of the record clearly stated the role played by the Appellant as their informant, who not only described the scene of the crime but followed them to the premises before the operation was conducted. It is therefore not correct to assert as done by the appellant that, it is only the evidence of the deceased co-accused that indicted him.
Alluding to paragraph 4.19 of the Appellant’s brief, on non cross-examination of PW4, learned Counsel submitted that PW4 was always available for cross-examination before his death but for the Appellant’s lackadaisical attitude the witness could not be cross-examined before his death.
On the submission of the learned Counsel for the Appellant that, the Appellant being an illiterate, he has every reason to be apprehensive of the Nigeria Police, learned Counsel took the view that, the advancement of the Democracy and the subsequent enlightenment of’ the constituent of human right makes this submission a no issue. Furthermore, the appellant was not the only person who was at the scene of the arrest. There were several other passers by who were not disturbed by the ongoing scenario.
Learned counsel concluded his submissions on this issue by submitting that, the learned trial Judge was right to have convicted the Appellant therein as charged and we were urged to resolve this issue in favour of the Respondent.
RESOLUTION OF THE ISSUE
In resolving this issue, my first port of call is section 36(5) of the constitution of the Federal Republic of Nigeria which provides thus:
“3 6(5) Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty.
Let me right away say that the provisions of the said section are very clear and unambiguous and require no aid for their interpretation. By the provisions of the said section, an accused person is absolutely presumed to be innocent till the prosecution proved otherwise. It is not the duty of an accused person to prove his innocence. Far from it. The prosecution must establish the guilt of an accused person. See the case of Chianugo v. The state (2002)2 NWLR (pt. 750) 225.

It is also trite law that the burden of proof in criminal cases is beyond reasonable doubt. Any slightest doubt raised in favour of the accused must be resolved in his favour which ought to lead to his discharge and acquittal. See the case of Aroyemun v. C.O.P. (2004) 16 NWLR (899) 414 at 432, paras D – E. Now, having stated the law and all that, the question that must be asked and answered is, whether it can be said that the prosecution has established the guilt of the Appellant beyond reasonable doubt? To answer this question, recourse had to be made to the evidence adduced by the prosecution in support of their case against the Appellant.
As can be gleaned from the records of the trial Court, the evidence adduced by the prosecution in support of the case against the Appellant cannot by any stretch of imagination be said to have linked the Appellant with the commission of the offence for which he was found guilty and convicted. The evidence of PWI was in respect of the exhibits gathered from the scene of crime and he told the Court that apart from recording and keeping the exhibits, he took no further part in the case. The evidence of PW2 did not in any link the Appellant with the commission of the offence.
Throughout his testimony, no reference was made by him, connecting the Appellant to the commission of the offence neither did he identify him in any way as one of those who robbed him on the day, he was robbed. The learned trial judge in my view, wrongly admitted the so-called confessional statement of the Appellant and placed reliance on the same in convicting the Appellant. It is on record that when the statement was being tendered, the learned Counsel for the Appellant objected to its admissibility on the ground that it was not voluntarily obtained from the Appellant.
Instead of the learned trial judge to order for trial with trial, he overruled the objection of the learned Counsel on the ground that the Appellant’s Counsel was unable to tell the Court the facts that make the statement involuntary.
Learned Director of Public Prosecution, with respect due to him made heavy whether of the fact that the learned trial judge was right in admitting the statement because the learned Counsel for the Appellant merely objected to the statement on the ground of involuntariness without more. I am of the considered view that though it is desirable for the Appellant’s Counsel to specify the facts that make the statement involuntary in view of the provision of Section 36(5) of the Constitution of Nigeria, 1999 which presumes an accused person to be innocent till proved otherwise, the trial judge should have ordered for trial-within-trial to determine the voluntariness or otherwise of the co-called confessional statement of the Appellant.
In the case of Onyejekwe v. The State (1992) 3 NWLR (part 230) 444, the apex Court, per Onu, J.S.C. the erudite Emeritus jurist held thus:
“Where a confessional statement is sought to be tendered in evidence and counsel to the accused who is alleged to have made the confessional statement objects to its being tendered in evidence on the ground that the confessional statement is not voluntarily made the court must conduct a trial within a trial to determine whether it is voluntarily made. Obidiozo v. State (lgg7) 3 NWLR (pt. 67) 748 referred to.) (p. 453, para. H).”
Let me pause at this juncture and state that though the statement in the case of Onyejekwe was rightly held to be admitted by the apex Court despite objection of its not being voluntarily obtained, it was for a different reason that the apex court held so. Hear the learned law Lord:
“The submission of the appellant that they were not voluntarily made is a belated afterthought because counsel did not object to their being tendered in evidence when prosecuting counsel sought to do so, which would have necessitated a trial within a trial vide Obidiozo v. The State (1987) 4 NWLR (Pt. 67) P.748). (underlining supplied for emphasis).
However, in the case in hand, needless to say, the objection raised by the learned Counsel was raised when the statement was sought to be tendered by the prosecution hence same was raised aptly and timeously and the learned trial judge should have ordered for trial within a trial and his failure to do so, is fatal to the prosecution’s case.
Again, learned Director of Public Prosecution, called in aid of the prosecution’s case, the case of Nnabo v. The State (1992) 2 NWLR (Pt. 226) 716 at 727 but with due respect to the learned Counsel, the facts of that case are not apposite with the facts of the case in hand. In that case, as held by our erudite Emeritus Justice, Oguntade, JSC, the Appellant disputed the contents of the statement. Hear him:
“The lower Court has been misled into conducting an unnecessary trial within trial by the objection of the defence that the statement of the appellant was not voluntarily made. It turned out however that the
Appellant was only disputing the contents of Exhibit “A”. It is clear therefore that the lower court correctly received exhibit ‘A’ in evidence”. (Underlined for emphasis).
It is instructive to note that when the Appellant testified before the learned trial judge, the prosecuting Counsel for reason which is very difficult to comprehend, in view of the seriousness of the offence, the rampancy with which same is being committed and the need to apprehend and prosecute such offenders with a view to deterring others, refused or neglected to come to Court at the critical stage of prosecuting the Appellant, i.e. at the stage of opening the defence of the Appellant.
In the case of Alor v. The State (1996) 4 NWLR (Part 445) 726 at 739, the Enugu Division of this Court held that where a Counsel for an accused person fails to cross examine a prosecution witness, the evidence of the cross-examined witness remains unchallenged to the extent that it may incriminate the accused. The Court is powerless to reject such evidence merely because it was not challenged. On the contrary, it must act on it unless it is otherwise controverted by other pieces of evidence. Although, the above quoted dicta was in respect of a prosecution witness, I am of the firm that it can and should equally be extended to the defence. In the instant case, the prosecution herein failed to cross examine the Appellant thereby rendering his evidence unchallenged to the extent that it may exculpate the 1st Appellant.
That aside, in the case of Magaji v. Nigerian Army (2008) 8 NWLR (Part 1089) 338, at 393 it was held that where there is unchallenged and uncontroverted evidence, a Court has a duty to act on it where it is credible. Though the learned Director of Public Prosecution insisted that before a piece of evidence is regarded as unchallenged, such evidence must be credible, positive, direct, cogent and of course reasonable and in the case in hand, the unchallenged evidence, learned Counsel went of, though not subjected to cross-examination, remains incredible, unreasonable and unwarranted and the trial Court, he further insisted was right to have refused to be moved by it. With due respect, the learned Counsel has not adduced reasons for the position he has taken on the testimony of the Appellant. Let me quickly say that the learned Director has alluded to the statement of the 1st accused at page 9 of the record wherein he took the view that from that statement, the Appellant not only described the house of PW2 to the gang of robbers but took them to the premises where they robbed PW2. It is my considered view that this piece of evidence cannot be used to assess the credibility or otherwise of the testimony of the Appellant. This is because this evidence corning from a co-accused, it is only evidence against him (1st accused) but cannot be evidence against the Appellant. (See section 27(3) of the Evidence Act, 2004 Again, the learned trial judge was absolutely wrong to have held that they (1st and 2n” Appellants) did not say anything in their defence and that one would expect that they would give evidence however weak about their whereabouts on the night of 1st Ju1y, 2007. I am of the considered view that by this holding, the learned trial judge was shifting the burden of proof to the Appellants which is against the spirit and letter of the Constitution of the Federal Republic of Nigeria, 1999.
The learned trial judge was also not right to have relied on the so called confessional statement of the Appellant which did not go into the rigours of trial within a trial as I have held elsewhere in this judgment.
Similarly, learned trial judge was also wrong to have used the evidence of PW4 which was not subjected to cross-examination by the Appellant. Last but not the least error of the learned trial judge was her comment on page 132 of the Records, wherein she stated thus:
“In Nigeria today if one has not committed any wrong and he is not apprehensive of being on the search list of the police, it is not a common scene for people to start running away merely because the police arrives and park their vehicle by the road side”. See page 132 of the Records.
Responding to this holding of the learned trial judge, the learned Counsel for the Appellant, at the risk of being repetitive held thus:
“We respectfully submit that the above conclusion of the learned trial judge is grossly erroneous. It is not in doubt that the larger percentage of the nation’s citizenry is illiterate and hence most are ignorant of their basic rights. The 1st Appellant falls in this category. It is not unusual for persons of his station in life to be apprehensive and sometimes make a dart from the police not because they have committed any wrong but because they are either unsure or totally oblivious of their rights under the law. This is especially so when a squad of armed police officers abruptly parked their vehicle in an intimidating manner.”
I am in complete agreement with the submission of the learned Counsel on this aspect of the case. The learned Counsel has said it all. I could not have put it better.
In the light of the foregoings, the question raised in this issue is answered in the negative. This issue for avoidance of doubt is resolved in favour of the Appellant and against the Respondent.
The 2nd issue for determination is whether the proceedings that transpired at the trial Court do not violate the Appellant’s right to fair hearing and fair trial. Learned Counsel began his consideration of this issue by referring to the case of Ebe v. Ebe (2004) 3 NWLR (Pt. 860) 215 at 24l, paras A – B; 245, paras E -H where it was held inter-alia thus:
“One of the basic requirement of natural justice is that a party should be given an opportunity to state his case without let or hindrance. The rule of audi alteram partem postulates that courts must hear both sides at every material stage of the proceedings before given a decision…………….”
Learned Counsel alluded to section 36(6) of the 1999 Constitution which provides that:
Every person who is charge with a criminal offence shall be entitled to examine, in person or by his legal practitioners, the witness called by the prosecution before any court or tribunal and obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court or tribunal on the same conditions as those applying to the witnesses called by the prosecution”. Emphasis mine.
Learned Counsel then contended that, it goes without saying that an accused person no matter the gravity of his offence is entitled to the constitutionally guaranteed right of fair hearing. The first Appellant, the learned Counsel went on, has a right of not only putting up his defence in person but also the right to debunk the case put forward by the prosecution.
The main avenue opened to him to accomplish the latter is through the cross-examination of the prosecution witnesses, learned Counsel further submitted.
Learned Counsel alluded to the testimony of PW2 (the complainant) and took the view that the testimony has no reference to the Appellant as the witness did not say that the Appellant was among the robbers. The learned Counsel is of the view that in view of the testimony of this witness (PW2), the prosecution is only left with the evidence of PW4, who testified to the identity, mode of arrest and the connection between the Appellant and the offence he was charged. This line of evidence, learned Counsel went on, was held by the trial judge to be ‘germane’ to the guilt or otherwise of the Appellants.
Learned Counsel also took the view that the Appellant was denied the right of cross-examining the witness on this germane piece of evidence but yet the trial Court went ahead to convict the Appellant. Learned Counsel opined that one’s innate curiosity is suddenly awakened as to whether the same conclusion would have been reached if the entire evidence of PW 4 is expunged or if the witness has been subjected to the test of cross examination.
It is the submission of the learned Counsel that, by not cross- examining PW4, the Appellant was denied the right at the trial Court and the prejudicial import of this denial on the right of the Appellant should not be treated with levity simply because it was fated to be so. The consequence on this presumption of innocence of the Appellant is as much grievous as where it was foisted directly by the trial Court. For this, learned Counsel urged us to hold that the Appellant’s right to fair hearing has been breached and he urged us to resolve this issue in favour of the Appellant.
For his part, learned Counsel for the Respondent contended that the grouse of the Appellant is that the death of PW4 has robbed him of fair trial but learned Counsel submitted that the death of PW4 has not deprived the Appellant of his constitutional right to fair hearing. Learned Counsel though conceded that PW4 was not cross-examined on his evidence before his death but the failure to cross-examine though blamable on death was partly due to the attitude of the Appellant and his cohorts.
Learned Counsel after recounting instances which frustrated the smooth hearing of the case before the death of PW4, caused by the Appellant opined that the Appellant and his cohorts partly contributed to the frustration of this case, all in their bid to run from the course of justice. It is the submission of the learned Counsel that be that as it may, it would be wrong to submit that the Appellant, by the death of PW4 was deprived fair hearing and that the only evidence linking him with the crime was the oral testimony of PW4. This is because the first accused person in his statement before the Court narrated unequivocally the role played by the Appellant as not only an informant but the man who described and took them to the scene of crime for a perfect operation.
Learned Counsel went on to contend that aside from the above, the Appellant himself in Exhibit 5 before the trial Court stated the role he played as an informant. He further contended that the evidence of PW4 only corroborated the unequivocal evidence adduced by the prosecution. It would therefore be wrong, learned Counsel went on, to assert as done by the Appellant in his brief of argument that he was not given fair hearing.
It is the submission of the learned Counsel that not withstanding the absence of the prosecution, the learned trial judge allowed the Appellant to state his defence before the trial court, the learned trial judge as a neutral arbiter placed before herself evidence on both sides before coming to the conclusion of guilt of the Appellant. How then does the Appellant come to the conclusion that he was not offered fair hearing?
Learned Counsel urged us to resolve this issue in favour of the Respondent and against the Appellant.
RESOLUTION OF THE ISSUE
Let me begin my consideration of this issue by restating the well-known principle of law pertaining to fair hearing as reiterates in the case of Lambert Iwuoha v. Felix Okoroihe (1996) 2 NWLR (part 429) P.231, Rowland, JCA (of blessed memory) herd thus:
“It is a fundamental requirement of our adversary system of administration of justice that a party to the litigation before the court must be heard before the court can determine his civil rights or obligations before it. The right to be heard is so fundamental a principle of our adjudicatory process that it cannot be compromised on any ground. Nwokoro v. Onuma (1990) 3NWLR (Part 136) 22 at 35, referred to and applied.”
It is instructive to note that our erudite Emeritus Justice of the apex Court, Edozie, JCA (as he then was) speaking in the same vein pointedly held thus:
“The overriding question germane to this appeal is whether there was a fair hearing in the court below.
A careful perusal of the record of proceedings including the short judgment of three pages reveals that although the appellant was present throughout the proceedings, he neither gave nor called evidence, nor did his counsel address the court. This according to the appellant was due to the manner in which the learned trial Judge conducted the case which includes making statements prejudicial to the appellant’s case, pontificating on the conduct of the defence thereby muzzling the defence counsel from adequately presenting the appellant’s case and also refusing applications for adjournment at the instance of the appellant.”
It has also been held that a fair hearing must involve a fair trial, and a fair trial of a case consists of the whole hearing. There is no difference between the two. The true test of fair hearing, is the impression of a reasonable person who was present at the trial, whether from his observation, justice has been done in the case. See Muhammed v. Kano N. A. (1968) 1 All NLR, 424 at 426.

The aim of cross-examination is to enable the cross-examining party to demolish or weaken the case of the party being cross-examined and also to afford the cross-examining party the opportunity of stating or representing its case through the witness of its opponent. See Iwuoha v. Okoroike (supra) p. 250, para. D.
It is pertinent at this stage to pause and state that having stated the law and all that pertaining to fair hearing, I will now closely examine what transpired in the lower Court with a view to finding out whether the proceedings conducted in the court below had violated the Appellant’s right to fair hearing.
A closer look at the evidence adduced by the prosecution would reveal the fact that after PW4 testified in the proceedings, he took ill and died before he was cross-examined by the learned Counsel for the Appellant.
As stated a while ago, the general aim of cross-examination is to enable the adverse party to demolish or weaken the case of the party being cross-examined and also to afford the cross-examining party the opportunity of stating or presenting its case through the witness of its opponent. See Iwuoha v. Okoroike (supra) p. 231 at 247, B.D.
Learned Counsel for the Respondent has made heavy weather of the fact that the Appellant contributed to the delay which resulted to the non cross- examination of PW4. They held the view that taking into consideration what transpired in the Court below, there was a deliberate effort on the part of the Appellant to frustrate the course of justice. With due respect to the learned Director of Public Prosecution, by virtue of Section 36(5) of the 1999 Constitution, every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty beyond reasonable doubt. And that the right to fair hearing we have talking about is constitutionally guaranteed and protected.
Let me also say that the Appellant’s right to fair hearing was infringed upon, albeit, by a stroke of fate. PW4, whose evidence in-chief gravely impacted on the innocence of the 1st Appellant, was made unavailable by the cold hands of death. The consequence of fair hearing as to whether it was induced by an act of God or an act of man remains unchanged. This unforeseen event cannot be called in aid of the prosecution.
It is pertinent to note that a breach of fair hearing induced by a force majevre should entitle the Appellant to the well established safeguard against, such, that is, any person standing trial or engaged in litigation is entitled to fair hearing and any proceeding in which the rule is not observed ought to be declared a nullity. See Aroyewun v. C.O.P. (1996) 4 NWLR (Part 445) 726.
In the light of all that has been said, this issue, like the previous one, is resolved in favour of the Appellant and against the Respondent.
In conclusion, the two issues having been resolved in favour of the Appellant, this appeal succeeds. The appeal is pregnant with a lot of merit. It must be and is hereby allowed. The judgment of the trial Court dished out to the Appellant is set aside. The conviction imposed is equally quashed. The Appellant is discharged and acquitted forthwith.

SOTONYE DENTON-WEST, JCA: My learned noble lord Tijjani Abdullahi, (PJ) had given a deep insight to the issues raised in this appeal. I am in absolute attunement with his reasoning on all the issues raised. However, I may further dilate my views in support on pertinent issues like fair hearing and sentencing which are dear to my mind, since they constitute recurring decimals in our jurisprudence. Aside from this, I also agree that the appeal is meritorious and therefore succeeds.
There is no doubt whatever that the relevant and applicable law in the dispute between the parties is whether the Respondent proved his case beyond reasonable doubt to warrant the conviction of the Appellant’ under the Nigeria Legal system, an accused is presumed innocent until when a court of competent jurisdiction pronounces his guilt, see section 36 (5) of the 1999 constitution. It is trite law that an accused person is presumed innocent until he is proven guilty. There is therefore no question of an accused person proving his innocence before a law court. In fact, in a criminal trial, an accused person does not have to utter a word. The duty is on the prosecution to prove a charge against the accused person beyond reasonable doubt. See OLORUNTOSIN V THE ATATE (2008) 3 NCC 39.
Similarly, the burden of proof is always on the Prosecution and once the prosecution fails to disburse the onus on it the accused will be left off the hook.
It is trite that confessional statement only without anything more can ground conviction- See section 27 Of the Evidence Act. However, before such confessional statement will ground conviction, it must be positive and direct. The Apex court has held that for capital offences, there must be Page some other corroborative evidence before a conviction can be grounded see EDOHO V THE STATE (2004) 5 NWLR (PT865) 17 @ 51, DIBIE V. STATE (2007) NCC 275, OYAKHIRE V STATE (2007) 2 NCC 15.
However, in the present case, the trial court convicted the Appellant based on his confessional statement, Exhibit 5, which was timorously objected to, it never completed the process of baptism of trial within trial and that alone remove the potency of the Respondent’s case.
For emphasis, a witness that makes himself absent either intentionally, unintentionally or by a stroke of faith has punctured all his evidence and same cannot be acted upon by the law court.
The terra firma on which the lower court placed his ruling for convicting the Appellant is weak, feeble, and porous and it is in light of this and other findings of my learned brother that I too will allow the appeal set aside the judgment of the lower court and hereby acquit and discharge the Appellant.

CHIMA CENTUS NWEZE, JCA. I had the advantage of reading the draft of the leading judgment which my noble Lord Abdullahi JCA, just delivered now. Dealing with the second issue, my Lord observed that after PW4 had “testified in the proceedings, he took ill and died before he was cross examined by the learned counsel for the appellant”. I, entirely, agree with my Lord that this lacuna in the case of the prosecution adversely affected outcome of the trial. It is true, indeed, that the general aim of cross examination is to enable the adverse party to demolish or weaken the case of the party being cross examined and also to afford the cross examining party the opportunity of stating or presenting its case through the witness of its opponent, Iwuoha v. Okoroike (1996) 2 NWLR (pt 429) 231, 247.
In a manner of speaking, therefore, it may be permissible to assert that the entire trial process revolves around this art of cross examination which Achike JSC, graphically, described as “a lethal legal weapon in the hands of the adversary to enable him effect the demolition of the case of the opposing party “, Oforlette v. State (2002) 12 NWLR (pt 61) 415. 436.
The Evidence Act, actually, underscores the purposes of cross-examination in section 200 which provides inter alia that:
When a witness is cross-examined, he may, in addition to the questions referred to, be asked any question which tend-
(a) to test his accuracy, veracity or credibility, or
(b) to discover who he is and what is his position in life: or
(c) to shake his credit, by injuring his character…..
by not being allowed to cross examine the said witness, the appellant was, in effect, robbed of the opportunity of testing his accuracy, veracity or credibility or discovering who he was or shaking his credit or injuring his character. The impact of this situation becomes manifest when considered against the background of the rationale of all binding authorities: authorities which have held that fair hearing imposes an ambidextrous standard of justice in which the court must be fair to both sides, Ndu v. State (1990) 7 NWLR (pt 164) 550. 578.
Instructively, the touchstone for determining the observance of fair hearing in trials is not the question whether any injustice has been occasioned on any party due to want of hearing. It is rather the question whether an opportunity of hearing was afforded to parties to be heard, in this case, the appellant, Ogundoyin v. Adeyemi (2001) 33 WRN 1, 13-14. Thus, in order to be fair, “hearing” or “opportunity to be heard” must inter alia encompass a party’s right: to cross examine or otherwise confront or contradict all the witnesses who testified against him; to have disclosed to him the nature of all relevant material evidence, including documentary evidence, prejudicial to him except in exceptions, Durowode v. State (2001) 7 WRN 50.
It is against this background that I subscribe to the finding of the leading judgment that the “appellant’s right to fair hearing was infringed upon, albeit, by a stroke of fate.”

Appearances

Olalekan Yusuf Esq. with Adeyemi Ogunluwoye and MotunrayoFor Appellant

AND

J. A. Mumini (D.P.P) with A. A. Daib (S.S.C.)For Respondent