OLUWATIMILEHIN IFARAMOYE V. THE STATE
(2013)LCN/6153(CA)
In The Court of Appeal of Nigeria
On Friday, the 3rd day of May, 2013
CA/B/168C2/09
RATIO
CRIMINAL LAW: BURDEN OF PROOF ON THE PROSECUTION IN CRIMINAL CASES
We will only be stating the obvious if we said that in criminal trials the burden of proof placed on the shoulders of the prosecution is proof beyond reasonable doubt. That burden remains constant and never shifts. Even where the accused in his statement to the police admits committing the offence, the prosecution is not relieved of the burden of proving the case beyond reasonable doubt. Failure to do so will lead to the discharge of the accused. See Ameh vs. The State (1978) 6-7 SC.27.PER CORDELIA IFEOMA JOMBO-OFO, J.C.A
SERVICE OF PROOF OF EVIDENCE: PURPOSE
This underscores the holding of the apex court in Abacha vs. The State (supra) regarding the relationship of a trial on information and proof of evidence that:
“The purpose of serving proofs of evidence upon an accused person is to give him the opportunity of knowing what the prosecution witnesses will state in court against him.”PER CORDELIA IFEOMA JOMBO-OFO, J.C.A
EVERY CHARGE AND PLEADING MUST BE CLEAR
The Supreme Court per Belgore JSC (as he then was) went further to say at pages 498-499 that:
“Every charge on an indictment must be clear so that the person to be tried will understand the complaint against him. In civil cases, the pleadings must be clear as to what the other party is to face at the trial. A fortiori, in criminal matters the accused must not be left in doubt as to what he is to face on trial, more so when criminal trial involves the liberty of the citizen being indicted. There is no need to speculate what is not on the face of the indictment.”PER CORDELIA IFEOMA JOMBO-OFO, J.C.A
JUSTICES
KUDIRAT M. O. KEKERE-EKUN Justice of The Court of Appeal of Nigeria
ALI ABUBAKAR B. GUMEL Justice of The Court of Appeal of Nigeria
CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria
Between
OLUWATIMILEHIN IFARAMOYE Appellant(s)
AND
THE STATE Respondent(s)
CORDELIA IFEOMA JOMBO-OFO, J.C.A (Delivering the Leading Judgment): The appellant alongside 3 (three) other accused persons were on the 17th of February, 2004 charged by way of information before the High Court of Ondo State sitting at Okitipupa on a one count charge of the murder of one Maria Joseph Erhiyore.
Statement of Offence
Murder: contrary to section 316(6) and punishable under section 319(1) of the Criminal Code Cap. 30 vol. 11 Laws of Ondo State of Nigeria, 1978.
Particulars of Offence
Ayodele Ikuemonihan, Francis Omosaye, Oluwatimilehin Ifaramoye, Sunday John on or about the 2nd day of June, 1995 at Ode-Erinje in the Okitipupa Judicial Division murdered one Maria Joseph Erhiyore (f).
On their arraignment while the 3rd accused herein the appellant and the 1st and 4th accused persons each pleaded not guilty the 2nd accused pleaded guilty to the charge. The case proceeded to trial in the course of which the prosecution called four (4) witnesses (PW1-PW4) while the appellant did not call any witness but testified on his own behalf. In all the prosecution tendered eight (8) exhibits marked A, A1, B-B1, C1-C2, D, D1, E and F-F5.
SUMMARY OF FACTS
The case for the prosecution at the trial was that on the 2nd of June, 1995 one Maria Joseph Erhiyore, a palm oil trader, left her house at Okitipupa with some empty palm oil kegs and the sum of N13,500 to go to the village of Ode-Erinje to purchase palm oil. The 1st accused who was to supply her with palm oil was to meet with her at the Community Bank in Ode-Erinje. Unknown to the said Maria Joseph Erhiyore hereinafter referred to as the deceased, the 1st accused (Ayodele Ikumonihan) had arranged with the other accused persons namely: Francis Omosaye (2nd accused person), Oluwatimilehin Ifaramoye (appellant herein) and Sunday John (4th accused) to dispossess her of her money without supplying her with palm oil. Upon the arrival of the deceased at the Community Bank the 1st accused took her to the house of the 2nd accused seemingly for the sale of the palm oil. It was there that the four accused persons pounced on the deceased, tied up her hands and mouth and throat with rope and pieces of cloth. The deceased was raped in turn by each of the four accused persons and she died in the process. Her sum of N13,500.00 was removed from her wrapper and shared amongst the four of them. The appellant got N4,000.00 as his own share. The deceased was subsequently thrown into a shallow pit toilet behind the house of the 2nd accused.
Following a report by the husband of the deceased and a search conducted by the police, the body of the deceased was found and exhumed. The accused persons including the appellant were later arrested in connection with the murder and apprehended before the trial court.
The appellant in his defence at the trial said that on that 2nd June, 1995 he was at Ugboran village assisting his mother with her farm work. He only returned to the village at about 5:00 p.m. and went to the house of a deceased relation. The next day at about 5:00 p.m. the town crier announced to the entire town that the king of the community had requested the presence of all at his palace. It was there that the king informed all and sundry of the missing deceased. The king directed that all should search for the deceased but that he went home and did not take part in the search. Later the corpse of the deceased was found.
On 20th June, 1995 he was arrested in connection with the death of the deceased. He denied involvement. He was forced to sign a statement under duress.
At the close of evidence from both sides and the filing and exchange of written addresses by counsel the learned trial judge in a considered judgment delivered 29th September, 2006 found the appellant guilty of murder and convicted him accordingly.
On being dissatisfied with his conviction and sentence the appellant on 13th of May, 2010 filed an Amended Notice of Appeal dated 10th May, 2010 but deemed properly filed and served on 2nd February 2011 containing two grounds of appeal.
The parties duly filed and exchanged briefs of argument in compliance with the rules of this court.
At the hearing of the appeal on 19th February 2013 OLAKUNLE AGBEBI Esq. learned counsel for the appellant while relying on the Appellant’s Brief of Argument dated 8th March, 2011, filed 22nd March, 2011, but deemed properly filed on 3rd November, 2011 adopted same as their argument in the case. Learned counsel urged the court to allow the appeal and set aside the trial, conviction and sentence passed on the appellant.
MR. TAIWO OLUBODUN, Deputy Director Civil Litigation, Ministry of Justice Ondo State for the respondent adopted and relied on their Brief of Argument dated 18th September, 2012, filed 19th September, 2012 and deemed properly filed 3rd December, 2012. Learned counsel urged the court to dismiss the appeal.
The appellant formulated two issues which said issues were adopted by the respondent for determination of the appeal and they are:
1. Whether wrongly admitting exhibits B-B1 and relying on same did not occasion a grave miscarriage of Justice against the appellant.
2. Whether admitting exhibits F-F5 in evidence and relying on same did not amount to an infringement on the appellant’s right to fair hearing and thus occasion a grave miscarriage of justice.
ISSUE 1
Whether wrongly admitting exhibits B-B1 and relying on same did not occasion a grave miscarriage of justice against the appellant.
In his contention on this issue, the learned counsel for the appellant referred to section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 hereinafter referred to simply as the Constitution which presumes an accused innocent until he is proven guilty. The burden placed on the prosecution is not discharged until the guilt of the accused person is properly established and he referred to Idemudia vs. the State (1999) 7 NWLR (Pt. 610) 202 at 215 F-G; Esangbedo vs. The State (1989) 4 NWLR (Pt. 113) 57. Also referred to by the learned counsel is section 138(1), (2) and (3) of the Evidence Act Cap 112 which stipulates the standard and burden of proof required in a criminal trial. The learned counsel further referred to Nwosu vs. State (1998) 8 NWLR (Pt. 562) 433 at 444 para. B; and Aigbagbon vs. State (2000) 7 NWIR (Pt.666) 686 at 704 para. B. where the Supreme Court pronounced that:
“In a criminal trial, the onus lies throughout upon the prosecution to establish the guilt of the accused beyond reasonable doubt. Even where an accused in his statement to the police admitted committing the offence, the prosecution is not relieved of that burden”.
Against this backdrop the learned counsel contended that at the trial of the case the prosecution did not adduce any other evidence whatsoever of any direct act of the appellant that caused the death of the deceased and that this was because there was none. He submitted that it is the law that the confession of a co-accused person cannot be held to work against another accused person at the same trial. He referred to the case of Kasa vs. State (1994) 6 SCNJ 1 and the provision of section 27(3) of the Evidence Act and went on to say that the admission of guilt by the 2nd accused (Francis Omosaye) at the trial cannot be held against the appellant particularly as the prosecution failed to call the said 2nd accused as a witness in the case despite the fact that he was available to be called. He conceded that the prosecution need not call a host of witnesses but that they are required to call material witnesses. See Adepetu vs. State (1996) 6 NWLR (Pt. 452) 90 as well as the case of State vs. Nnolim (1994) 5 NWLR (Pt. 345) 394.
Appellant’s counsel noted that Francis Omosaye (2nd accused) having admitted committing the crime of murder and at page 41 lines 2-4 of the Record of Appeal, on allocutus said that he did not know what led him to kill. The entirety of the prosecution’s case against the appellant herein was therefore based on the alleged extra judicial confessional statement of the appellant – Exhibits B-B1; and that the judgment of the learned trial judge was in the same vein based largely on the extra judicial confessional statement of the appellant. The appellant according to counsel never admitted to the offences charged neither did he adopt the extra judicial statement as his own rather he resiled from it. Further in his argument the learned counsel for the appellant submitted that the learned trial Judge wrongly admitted the alleged confessional statements (Exhibits B-B1) and that he did so when he exhibited transparent bias against the appellant. This submission according to counsel, is based on the statement made by the learned trial Judge as it appears at page 52 lines 10-18 of the Record of Appeal and it reads:
“I have listened to the argument of counsel on both sides on the admissibility of the statements of the 2nd Accused person in this case. While I agree that this witness may tender the statements in law as stated by the Learned DDPP, I hold the view that proper foundation should be laid as to reasons why the makers of this (sic) statements are not called. The learned DDPP argued further that this Court is a Court of Justice and technicalities should not be allowed to prevail over justice. I hold the view that since the defences of the Accused persons are likely to be based on these statements i.e. whether or not they are voluntarily made, it will be in the interest of justice that the statements are admitted at this stage”. (Underlining supplied).
Learned counsel submitted that the above quoted portion is a clear indication that the learned trial Judge was biased. That having found that proper foundation was not laid for the admissibility of the documents by law, he went ahead to still admit the same knowing fully well as he said that this might well be the defence of the appellant. Counsel saw this as a travesty and a grave miscarriage of justice and he urged this court to so find and hold.
In further contention, learned counsel for the appellant referred to the provisions of sections 34(3), 35 and 36 of the Evidence Act as well as the cases of I.I.T.A. vs. Amrani (1994) 3 NWLR (Part 332) 296; A. A. Chanchangi & Sons Ltd vs. N.R.C. Ltd. (1996) 5 NWLR (Pt. 446) 46; Abolade Agboola vs. Salawu Jagun Olukade (1976) 2 SC 183 and Hausa vs. State (1994) 6 NWLR (Part 350) 281.
Counsel placed reliance on the case of Legal Practitioners Disciplinary Committee vs. Chief Gani Fawehinmi (1985) 2 NWLR (Pt. 7) 300 to submit that the reference by the Learned Trial Judge to “interest of justice” as the basis for admitting the documents, having qualified his reference with the statement loaded with bias to the effect that that would likely be the defence of the accused persons, was perverse. He cited the case of Morka vs. State (1998) 2 NWLR (Part 537) 294 where this Court held that:
“A trial court has no duty to offer any explanation on behalf of the prosecution as it is not its duty to bridge the yawning gaps in the case of the prosecution”.
To further underscore their case of bias counsel for the appellant referred to page 101 lines 13 – 18 of the Record of Appeal where in the course of delivering his judgment, the learned trial Judge held as follows:
‘The Court overruled the Defence Counsel’s objection and admitted the Statements of the 2nd accused persons (sic) at this stage on the ground that, though, no evidence was laid as to the whereabouts of the two Police Officers, it was obvious to the court that the only defence of the accused persons would be on the voluntariness or otherwise of the statements”. (Emphasis supplied)
Arising from the foregoing the learned counsel concluded that the statement by the Learned trial Judge that he knew that the voluntariness or otherwise of the alleged confessional statements were likely to be the defence of the appellant and the other co-accused persons amounted to him doing the job of the prosecution. He referred to Nsofor vs. State (2004) 18 NWLR (Pt. 905) 292 where Aniagolu JSC held that:
“A judgment sending a man to the gallows must be seen to be the product of logical thinking based upon admissible evidence in which the facts leading to his conviction are clearly found and deductions therefore carefully made. It cannot be allowed to stand if found upon scraggy reason or perfunctory performance. It is so in all cases and more so in criminal cases and particularly more so in capital offence.”
The appellant’s counsel urged further that the bias had operated in the mind of the learned trial Judge and he stepped in to counter any defence available to the appellant and the other accused persons at the trial and for this the appellant cannot be said to have had a fair trial in the circumstances. Counsel concluded his submission by saying that there is no legally admissible evidence against the appellant which can sustain the conviction of the trial court and as such the same ought to be set aside. He relied on the cases of Okoro vs. State (1993) 3 NWLR (Part 282) 425; and Babalola vs. State (1989) 4 NWLR (Part 119) 264. Consequently the counsel for the appellant urged the court to resolve issue 1 in the appellant’s favour, allow this appeal and set aside the conviction and sentence passed on the appellant and in its place enter a verdict of discharged and acquitted.
In reaction to issue 1 which in recap is whether wrongly admitting exhibits B-B1 and relying on same did not occasion a grave miscarriage of justice against the appellant, TAIWO OLUBODUN Esq. for the respondent argued that Exhibits B – B1 were not wrongly admitted by the court and thus no miscarriage of justice was occasioned. He went on to say that relevance is what governs admissibility and that the relevance of Exhibits B – B1 cannot be overemphasized since either by themselves or in connection with other facts they make the issue of the murder of the deceased in this case probable or improbable. He relied on section 12(5) of the Evidence Act cap 112, Laws of the Federation, 1990.
Further in his submission, learned counsel stated that the submission of the counsel for the appellant that necessary foundation was not laid before the trial court admitted Exhibits B – B1 is a classic attempt to mislead this court to sacrifice justice on the altar of legal technicality which has been deprecated enough by the courts’ He argued that the (PW3) that is Inspector Omojeje John’s explanation of his relationship with the case and familiarity with the handwriting and signature on the statements which are Exhibits B – B1 are enough to satisfy the requirement of necessary foundation. Counsel stressed the point that the appellant did not disown Exhibits B – B1. That the IPO who recorded and the one that translated that is Sgt. Mogaji and Inspector Rufus Ibitoye merely assisted the appellant to write and translate his statement. Ordinarily therefore, these officers are not the makers of the Exhibits rather the substantive maker at all times remains the appellant who did not deny making the statements and that as such the lower court correctly held that the appellant was the maker of Exhibits B – B1 as shown on page 116 of the records. Learned respondent’s counsel called on the court to take notice of the fact that in the course of the trial that PW4 (the Assistant Commissioner of Police) told the lower court that Mr. Rufus lbitoye, who translated Exhibit B-B1 had left the Police Force and his whereabouts unknown. He submitted that the decision of the lower court to admit Exhibits B-B1 finds strength and comfort under section 83(2) of the Evidence Act Cap, E14, 2011 which section empowers the court at any stage of the proceedings, where it is satisfied that undue delay or expense would otherwise be caused to order that a statement be admitted notwithstanding that it is not tendered by the maker. This according to counsel is to ensure that the interest of justice is not defeated. Notwithstanding his foregoing argument, the learned counsel for the respondent urged that this court can still uphold the verdict of guilt entered against the appellant based on the Form for Admission of Confessional Statement which was prepared, read over to the appellant and he signed and the PW4 countersigned. This Form was tendered and admitted without objection and marked Exhibit E. To further underscore the import of Exhibit E learned counsel referred to section 28 of the Evidence Act, 2011 and urged this court to appraise and give probative value to this Exhibit E arguing that this court is in as good position as the lower court to do this.
Back on Exhibit B-B1 learned counsel for the respondent noted that the provision of the Evidence Act, Cap 112 Laws of the Federation of Nigeria,2004was the one that governed the proceedings before the lower court in 2005 and that that law by virtue of its section 91(1) dispenses in a criminal case with the condition that the maker of a document must be called and that the section begins thus: “In any civil proceedings where direct oral evidence of a fact………” (Emphasis supplied). Thus the lower court was not wrong in admitting Exhibit B-B1 in evidence.
Counsel referred to pages 38 – 41 of the record in submitting that the appellant’s conviction by the trial court was not based on the conviction and confessional statement of the 2nd accused person (one Francis Omosaye) who pleaded guilty and was convicted and sentenced accordingly upon the trial court’s discovery that his plea of guilt was not only consistent with but also supported by evidence on record. Counsel also touched on the established principle that failure to consider and examine a defence by the trial judge does not only raise reasonable doubt in the case of the prosecution but also amounts to a failure to perform a vital duty imposed on the trial judge and such will amount to a miscarriage of justice which must result in the decision appealed against to be set aside. See the cases of Olayinka vs. The State (2008) 6 ACLR 194, 202; and Ayo vs. The State (2008) 6 ACLR 220, 228 ratio 5. It is in the light of the foregoing principle that the respondent submitted finally that the following extract from the trial court’s judgment on page 57, lines 15-18 of the record should be regarded as a fulfillment of a legal requirement rather than a demonstration of bias as canvassed by the appellant and it reads:
“I hold the view that since the defences of the accused persons are likely to be based on these statements i.e. whether or not they are voluntarily made it will be in the interest of justice that the statements are admitted at this stage…….”
RESOLUTION OF ISSUE 1
We will only be stating the obvious if we said that in criminal trials the burden of proof placed on the shoulders of the prosecution is proof beyond reasonable doubt. That burden remains constant and never shifts. Even where the accused in his statement to the police admits committing the offence, the prosecution is not relieved of the burden of proving the case beyond reasonable doubt. Failure to do so will lead to the discharge of the accused. See Ameh vs. The State (1978) 6-7 SC.27.
The prosecution in establishing its case at the lower court relied to a large extent on Exhibit B-B1 being statement purportedly made by the said appellant at the S.I.I.B. Akure. It is in the evidence of the PW3 (Inspector Omojeje John) that he was part of the team that carried out the investigation of the case of murder involving the appellant. The other team mates are Sergeant Felix Mogaji and Sergeant Augustine Abaye while Inspector Rufus Ibitoye led the team. PW3 said that he worked together with these Police Officers for about three or four years and that each of the accused persons including the appellant volunteered statements in Yoruba and which statements were translated into English. Before the translation the Yoruba versions were read over to each of them who agreed that the statements were correct and they signed and he the witness signed as the Recorder. PW3 went on to state that the Yoruba version of the statements of the 2nd accused was recorded by Sergeant Mogaji while the translation into English language was done by Inspector Ibitoye. He identified the handwriting and signature on the statements as those of Sergeant Mogaji and Inspector Ibitoye respectively.
Now at the point of tendering the statement in question before the lower court, an objection was raised to its admissibility by Chief Kuewumi for the appellant arguing that the statements were not being tendered by their makers and that no proper foundation was laid as to the reasons why the makers were not called. Mrs. Uche Anabuyi learned counsel for the State in response to the objection referred the trial court to sections 215(2) and (3) and 216 of the Evidence Act and argued that the statements were admissible in view of the evidence on record that the witness i.e. PW3 worked with the makers of the statements and can recognize their handwritings and signatures. In a considered ruling on these submissions of counsel on both sides the learned trial Judge at page 52 of the Record held as follows:
“I have listened to the argument of counsel on both sides on the admissibility of the statements of the 2nd accused person in this case. While I agree that this witness may tender the statements in law……..I hold the view that proper foundation should be laid as to reasons why the makers of this (sic) staements are not called. The learned DDPP argued further that this court is a court of justice and technicalities should not be allowed to prevail over justice. I hold the view that .since the defences of the Accused persons are likely to be based on these statements i.e. whether or not they are voluntarily made, it will be in the interest of justice that the statements are admitted at this stage. The statements of the 3rd Accused person are admitted in evidence and marked Exhibits B-B1.” (Emphasis supplied).
In his brief of argument in the instant appeal, the learned counsel for the appellant contended that the above quoted portion of the proceedings is a clear indication of bias in that the learned trial Judge having found that proper foundation was not laid for the admissibility of the documents by law still went ahead to admit the same knowing full well as he said that this might well be the defence of the appellant. Counsel opined that a grave miscarriage of justice occurred here and he urged the court to so hold.
Now, in appraising the finding of the trial court as reproduced above this court appreciates the fact that in the absence of the maker of a document that proper foundation ought to be laid as to why the maker is not available before such can be made admissible in evidence. The overall essence of having the maker of a document present in court is for purposes of answering questions arising from the document in issue. The PW3 being the witness through whom Exhibit B-B1 was tendered in evidence made it clear that he was part of the investigating Police team that obtained statements including Exhibit B-B1 from the appellant and his co-accused. By that piece of evidence he had put himself on the line as a witness competent enough to take questions arising from the document if the need arose. He also said that he had worked with Sergeant Mogaji the recorder of the Yoruba version and Inspector Rufus Ibitoye the translator into English language for a period of three to four years and that he was in a position to identify and recognize their respective handwriting and signature. We indeed find that these pieces of evidence put forward by the PW3 form sufficient and proper foundation for the said Exhibit B-B1 to be admitted in evidence through him. Be that as it may the PW3 ought to have gone a step further to tell the trial court the whereabout of the said Sergeant Mogaji and Inspector Rufus Ibitoye. To our mind though the witness did not state as much, that omission is not fatal to the admissibility of the statements in evidence. The learned trial court was right in not allowing technicality to obfuscate the interest of justice when it ruled inter alia that:
“…….., it will be in the interest of justice that the statements are admitted at this stage…..”
By the provision of section 12(5) of the Evidence Act Cap 112, Laws of the Federation, 1990 which is the same as section 9(b) of the Evidence Act 2011, facts which otherwise are not relevant become relevant if by themselves or in connection with other facts they make the existence or non existence of any fact in issue or relevant fact probable or improbable. Thus Exhibits B-B1 if not by themselves alone will in connection with other facts make the issue of the murder of the deceased in this case probable or improbable. Aside from this, evidence obtained improperly or even in contravention of a law shall be admissible pursuant to section 14 of the Evidence Act, 2011 unless the court is of the opinion that the desirability of admitting the evidence is out-weighed by the undesirability of admitting evidence that has been obtained in that manner. In this regard and as spelt out in section 15 of the Evidence Act supra, the court shall take into account:
(a) The probative value of the evidence;
(b)The importance of the evidence in the proceeding;
(c) The nature of the relevant offence, cause of action or defence and the nature of the subject-matter of the proceeding;
(d) ……………
(e) ……………..
(f) ……………..
(e) ……………..
We are satisfied that Exhibit B-B1 was found to be relevant and legally admissible pursuant to the foregoing statutory provisions hence the trial court allowed same in evidence. Moreover the learned counsel for the respondent submitted and which submission we so hold that the appellant did not disown Exhibit B-B1 at the trial court. The IPO who recorded and the one that translated i.e. Sgt Mogaji and Inspector Rufus Ibitoye merely assisted the appellant to write and translate the statement. Ordinarily therefore these officers are not the makers of the statement. The substantive maker of the statement remains the appellant. To this extent the trial court was obliged to rely on the exhibits same having been properly and statutorily admitted in evidence. We hold that Exhibit B-B1 was neither wrongly admitted in evidence nor did it occasion a miscarriage of justice as the appellant is calling upon this court to hold. To this end Issue 1 as formulated above is hereby resolved against the appellant.
ISSUE 2
Whether admitting Exhibits F-F5 in evidence and relying on same did not amount to an infringement on the appellant’s right to fair hearing and thus occasion a grave miscarriage of justice?
In arguing issue 1 the learned counsel for the appellant is contending that the learned trial judge erred in law when he admitted Exhibits F-F5 (photographs of the deceased) in evidence when same were not listed in the proofs of evidence nor was it tendered by the photographer who took them and same amounted to a breach of the fundamental rights of the appellant as guaranteed by the Constitution of the Federal Republic of Nigeria, 1999 (hereinafter referred to as the Constitution). He relied on section 35 of the Constitution wherein it is provided that every one charged with an offence shall be informed in detail of the nature of the offence. He also cited the authority of Abacha vs. State (2002) 11 NWLR (Part 779) 437 where the apex court held regarding the relationship of a trial on information and proof of evidence that:
“The purpose of serving proofs of evidence upon an accused person is to give him the opportunity of knowing what the prosecution witnesses will state in court against him”.
To further expatiate their case counsel said that in the judgment at page 96 particularly at page 121 lines 17-30 of the Record of Appeal, the learned trial Judge relied on Exhibits F-F5 in considering whether the prosecution at the trial had proved a case of murder against the appellant. This in the counsel’s view is an infringement of the rights of the appellant and same being constitutional in nature can be raised at any time. He therefore urged the court to find and hold that the photographs were wrongly admitted and the learned trial Judge ought not to have relied on same in his judgment as it was expressly prejudicial to the appellant and an infringement of his fundamental right to fair hearing. To reinforce their submission on issue 2, learned counsel sought to rely on the arguments earlier proffered by him in issue 1 particularly as to bias exhibited by the learned trial Judge against the appellant upon which he surmised that the said appellant was denied fair hearing. Counsel urged us to hold that there was no fair hearing in the trial and to set aside the trial and conviction and sentence passed on the appellant.
In opposition on issue 2 the learned counsel for the respondent submitted that the proof of evidence at page 5 of the record shows clearly that the prosecution intended to present Lasco Photos of No. 7 Lisa Street, Okitipupa as the 4th prosecution witness in order to tender the negatives and pictures as exhibits through him. Counsel reiterated that the basic statutory requirements of an information other than the proof of evidence to be adduced by the prosecution are provided in sections 151-180 and 337- 339 of the Criminal Procedure, Cap 31, Vol. 11 Laws of Ondo State, 1978. He said that it is when a law or statute has laid down a procedure of doing a thing that compliance with that procedure is a condition precedent to doing that thing. Counsel relied on Kayode & Anor. vs. The State (2008) 6 ACLR 255 at 261, ratio 6 in submitting that stating all exhibits in information is more of a rule of conventional practice than a statutory requirement. It was in the light of the foregoing that the learned counsel went on to say that where the conviction of the accused is based on the voluntary confessional statement made by him, an Appellate Court will not be prepared to hear submission on technicalities as to procedure like in the instant case on appeal which do not materially affect the entire process as to make the trial a nullity. He referred to Gozie Okeke vs. The State (2003) 15 NWLR (Part 842) 25.
On whether proper foundation was laid for the admissibility of Exhibits F-F5 the learned respondent’s counsel was emphatic that it was so laid. He referred the court to page 54, lines 8-13 containing the oral testimonies of the PW3 in respect of the maker of Exhibits F-F5 as well as the holding of the trial court thereon on pages 64, lines 23-31 and 65, lines 1-3 of the Record. Counsel submitted that under the Evidence Act, Cap 112, Laws of the Federation, 2004 which governed the trial in 2005, that section 91 thereof did not make it mandatory that the maker of a statement is the only one who can tender same in criminal proceedings. Counsel went further to state that Exhibits F-F5 (the deceased’s photographs and their negatives) were tendered essentially, to establish one of the ingredients of murder i.e. the death of the deceased. The other ingredients are that the intentional act or omission of the accused which caused the death was with the knowledge that death or grievous bodily harm was its probable consequence. Counsel placed reliance on the decision of this court in Haruna Isah vs. The State (2007) 12 NWLR (Pt. 1049) 582, 602-604 paras. B-B1.
Further in their submission counsel said that the medical report (post mortem report) tendered and admitted without objection as Exhibit A on page 42, lines 21-23 of the record was purposely to establish the death of the deceased (which Exhibit F-F5 was also meant to establish) and the cause as there was no conflict as to the identity of the deceased’s corpse. See Amayo vs. The state (2008) 6 ACLR 416, 422 ratio 13. Counsel pointed out that either Exhibit A (autopsy report) or Exhibits F-F5 (the deceased’s photographs and their negatives) can sufficiently establish the death of the deceased while the other ingredients of murder highlighted above had been sufficiently established by the confessional statements (Exhibits B-B1) of the appellant which the trial court admitted after being tested for their truth, possibility and consistence with other facts already proved and ascertained. See pages 11 – 119 of the record. Counsel added that assuming without conceding that Exhibits F-F5 were wrongly admitted, the trial court could still have sustained the conviction of the appellant if it was expunged from the records since Exhibit A which was also tendered to establish the death of the deceased was admitted without any objection whatsoever. See Olayinka vs. The State (2008) 6 ACLR 194,196 ratio 2.
Counsel finally urged the court to resolve this issue in favour of the respondent.
RESOLUTION OF ISSUE 2
The main contention of the appellant under issue 2 is that the learned trial Judge erred in law when he admitted Exhibits F-F5 (photographs of the deceased) in evidence when same were not listed in the proofs of evidence and that by so doing the appellant’s right to fair hearing was breached thus occasioning a grave miscarriage of justice.
Section 36 of the Constitution undoubtedly guarantees the appellant the right to fair hearing. This underscores the holding of the apex court in Abacha vs. The State (supra) regarding the relationship of a trial on information and proof of evidence that:
“The purpose of serving proofs of evidence upon an accused person is to give him the opportunity of knowing what the prosecution witnesses will state in court against him.”
The Supreme Court per Belgore JSC (as he then was) went further to say at pages 498-499 that:
“Every charge on an indictment must be clear so that the person to be tried will understand the complaint against him. In civil cases, the pleadings must be clear as to what the other party is to face at the trial. A fortiori, in criminal matters the accused must not be left in doubt as to what he is to face on trial, more so when criminal trial involves the liberty of the citizen being indicted. There is no need to speculate what is not on the face of the indictment.”
Again by virtue of the provisions of section 338(1) of the criminal procedure Laws of Ondo State:
(1) Where an information is exhibited to the High Court under the provisions of this Law-
(a) a description of the offence charged in such information or, where more than one offence is so charged, shall be set out in the information in a separate paragraph called a count;
(b) a count of an information shall commence with a statement of the offence charged, called the statement of offence;
(c) the statement of offence shall describe the offence shortly in ordinary language, avoiding as far as possible the use of technical terms and without necessarily stating all the essential elements of the offence, and, if the offence charged is one created by a written law, shall contain a reference to that written law;
(d) after the statement of offence, particulars of that offence shall be set out in ordinary language:
Provided that where any written law limits the particulars of an offence which are required to be given in an information nothing in this paragraph shall require any more particulars to be given than those so required;
(e) ……………….
It was in pursuance of the foregoing provisions that we took a close look at the information and the proof of evidence contained at pages 1-10 of the record. Notwithstanding that the pages particularly page 5 thereof have become slightly illegible due to photocopying, we were still able to see that the prosecution made it clear that it intended to invite as the 4th prosecution witness one Mesco Photos of No. 7 Lisa street to take photograph of a deceased woman who was removed from a pit latrine and to tender the negatives and the pictures as exhibits. This in our humble view is enough notice to the appellant that he was going to be confronted at the trial with photographs of a deceased woman who was removed from a pit toilet. Moreover, there is nothing in the above reproduced law which is suggestive of the fact that items to be tendered as exhibits are to be specifically listed in an information. As rightly submitted by the learned counsel for the appellant all that is basically required is the clarity of the offences to be preferred against the accused person so that his plea thereto is not out of ignorance. We are obviously of the view that the law has not set out a clear or specific format to be followed in an information. It is when a law or statute has a laid down procedure for doing something that compliance with that procedure becomes a condition precedent for doing that thing. See Kayode & Anor. vs. The State supra. Regarding the admissibility of the photographs of the deceased marked Exhibits F-F5 which the appellants contend to be wrongly admitted and relied upon by the learned trial Judge; the extract from the oral testimonies of the pW3 (Inspector Omojeje John) through whom the same was admitted in evidence contained on page 64 particularly at lines 1-13 of the Records needs to be brought into con. It reads:
“It was one Corporal Ogedengbe who brought the report and the accused persons to Akure from Okitipupa. I don’t know the whereabout of the said Ogedengbe I don’t know if he has retired from Police Force. Is a long time ago now. As part of the investigating team at Akure, I know the contents of the Report that was brought to Akure from Okitipupa.
Among other things in the file is a black and white photograph of the deceased and the negative, a Medical Report and a comprehensive report written from the Police at Okitipupa. I studied very well the case file from Okitipupa. The name of the photographer is one Mesco photos an Ibo man. He has no business address in the file. Mesco Photo has relocated to the Eastern part of Nigeria being an Ibo man. I have tried to locate him several time when I was served with the witness summons but all efforts proved abortive. These are the pictures and the negatives of the deceased in this case.”
Premised on the foregoing testimony of the PW3, the learned trial judge ruled as follows at pages 64 lines 23-31 and 65 lines 1-3:
“…….it is my view that the photographs are being tendered to show that someone died or was killed particularly that the person killed, and which is the subject matter of this case actually died. There is nothing as (sic) the face of the photographs that show any of the accused persons as the killer of the deceased. I cannot therefore see how the admissibility of the photographs and the negatives will prejudice the case of the Accused persons, moreso when the witness had laid a foundation as why the photographer cannot be located. I hold the view that with the foundation laid by this witness who is one of the investigating Police Officers and other reasons stated above the interest of justice demands that the photographs and their negatives be admitted in evidence. The photographs and the negatives are admitted and marked Exhibits F-F5.”
Given the above extracts and taking cognizance of the provisions of section 91 of the Evidence Act being the Act that governed the trial in 2005, we are of the strong view that not only did the Act not make it mandatory that the maker or producer of a document is the only one through whom same can be admitted in evidence, but also that proper foundation was laid in the instant appeal before the photographs were admitted by the trial court as Exhibits F-F5. Suffice it to say that the ruling of the trial court therein remains unassailable more so as it was not appealed against.
Our reaction on issue 2 is that Exhibits F-F5 were duly admitted and relied upon in evidence by the trial Judge. The said admission of and reliance upon them did not amount to an infringement on the appellant’s right to fair hearing neither did it occasion a miscarriage of justice as is contended by the appellant. Issue 2 is therefore resolved in favour of the respondent.
Having found the admitted Exhibits B-B1 and F-F5 to be proper it is now imperative for the court to determine their material import on the case of the prosecution vis-a-vis the burden of proof placed on them.
It is the finding of the trial judge that the defendant (appellant herein) did not dispute the fact that Exhibits B-B1 were voluntarily made by the said appellant. In support of this finding is the evidence of the PW3 as contained at page 51 lines 13-14 of the record wherein he said that because the statements (Exhibits B-B1) were confessional statements the appellant who was the 3rd accused before the trial court was taken to ACP. S. A. Adetuyi for attestation. On the part of Mr. Samuel Ayodele Adetuyi being the PW4 he testified as contained on page 62 lines 23-31 of the record, that each of the accused persons was brought to his office for the attestation of their confessional statement. He read over the confessional statement of the appellant (Oluwatimilehin Ifaramoye) to him and he admitted making and signing same. Consequent upon this admission the PW4 prepared the form for confessional statement, read it over to the appellant who signed and he the PW4 countersigned. The form was thus admitted in evidence without objection and marked Exhibit E.
With the finding of the trial court and which we so hold, that Exhibits B-B1 are the voluntary confessional statements of the appellant it follows that by virtue of section 27 of the Evidence Act, 2004, the said statements are relevant facts against him. As rightly submitted by the learned respondent’s counsel a court can convict on a confessional statement alone even where the accused resiles from it. See Sule vs. The State supra; Obidiozo & Ors. vs. The State (1987) 1 NWLR (Pt.67) 748; and Ejinsima vs. The State (1991) 6 NWLR (Pt. 200) 637. Further more in Olabode vs. The State supra it was held that:
“……a confessional statement made by an accused and properly admitted in law is the best guide to the truth of the role played by him and upon which alone the court can convict.”
See also Ogoala vs. State (1991) 2 NWLR (Pt. 175) 509 at 534.
Guided by the foregoing authority it is our humble view that the trial court could convict on Exhibits B-B1 alone being the voluntary and confessional statements of the appellant notwithstanding the other surrounding circumstances which make the confession probable. Aside from the voluntary confession of the appellant, the prosecution in order to establish the death of the deceased tendered Exhibit A i.e. the Autopsy Report which exhibit was admitted in evidence without any objection whatsoever. See page 42 lines 21-23 of the record. Either of Exhibits A and F-F5 is conclusive evidence that the deceased died. Exhibit B-B1 duly admitted in evidence contains the voluntary confession of the appellant that he partook in the act that led to the death of the deceased.
Having regard to the circumstances of the instant appeal we have come to the conclusion that the prosecution discharged the burden of proof placed upon it beyond reasonable doubt. I hold that the appeal lacks merit. It is hereby dismissed. The trial, conviction and sentence of death imposed on the appellant by the High Court of Ondo State sitting at Okitipupa in suit No. HOK/1C/96 in the judgment delivered 29th September, 2006 are hereby affirmed.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.C.A.: I have read in draft the judgment of my learned brother, Jombo-Ofo, JCA just delivered. I agree with the reasoning and conclusion therein.
I agree that the appeal lacks merit and ought to be dismissed. The conviction and sentence imposed upon the appellant by the trial court is hereby affirmed.
ALI ABUBAKAR B. GUMEL, JCA: I have had a preview of the read judgment of my learned brother,
Jombo-Ofo, JCA in this appeal. I fully agree with all the reasonings and conclusions set out therein. I adopt them as mine. I too would dismiss this appeal for totally being devoid of merit. I abide by all the consequential orders of my learned brother.
Appearances
Olakunte Agbebi Esq.For Appellant
AND
Taiwo Olubodun Esq. Deputy Director Civil Litigation with Charles Olafimihan Esq. Senior Legal Officer and Miss E.T. Ganranwoi Senior Legal OfficerFor Respondent
