TAYE SAMUEL v. THE STATE
(2019)LCN/13478(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 11th day of June, 2019
CA/AK/190C/2016
JUSTICES
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
RIDWAN MAIWADA ABDULLAHI Justice of The Court of Appeal of Nigeria
PATRICIA AJUMA MAHMOUD Justice of The Court of Appeal of Nigeria
Between
TAYE SAMUEL Appellant(s)
AND
THE STATE Respondent(s)
RATIO
WHETHER OR NOT THE COURT CAN IMPOSE A LESSER SENTENCE IN A CAPITAL OFFENCE
This is premised on the legal principle that in a capital offence like this one where the law prescribes a mandatory death penalty, the Court cannot impose a lesser sentence. See BALOGUN V A. G. OGUN STATE (2002) 6 NWLR, PT 763, 512 (SC) and AMANCHUKWU V FRN (2007) 6 NWLR, PT 1029, 1 (CA). PER MAHMOUD, J.C.A.
THE DEFENCE OF ALIBI
The word Alibi is a latin expression which means ?I was elsewhere?. The defence seeks to persuade the Court that the accused could not possibly be at the scene of the crime as he was elsewhere, most probably there were people who could testify that at the time of the alleged incident or act he was not at the scene. However where an accused person is unequivocally pinned to the locus in quo as the one who committed the offence the defence no longer avails him. See SOWEMIMO V STATE (2004) 11 NWLR, PT 885, 515 (SC). PER MAHMOUD, J.C.A.
PATRICIA AJUMA MAHMOUD, J.C.A. (Delivering the Leading Judgment): The appellant, Taye Samuel was initially charged on a six count charge of armed robbery together with one Muyiwa Ariyo who was charged with unlawful possession of firearms. The said Muyiwa Ariyo who had been granted bail, jumped bail and could not be re-arrested. The prosecution in the circumstances had to file a new information dated 25/04/2016 against only the appellant. He was charged and tried for the offence of armed robbery contrary and punishable under Sections 1(2) (a) and (b) of the Robbery and Firearms (Special Provisions) Act, Cap RII, Vol. 14 LFN, 2004.
The case for the prosecution was that the defendant in the Court below sometimes in October 2012, 21st November, 2012 and 13th January, 2013 at Owo while armed with a gun robbed one Sunday Ogunmoalawa (PW1), Gafari Akanbi Benson, (PW2) and Rasidi Mohammed (PW3) of their monies and other valuables. In proof of its case the prosecution called four witnesses and tendered one exhibit (statement of the appellant at SAR), marked as Exhibit A. The defendant on his part testified on his own behalf, called no other
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witness and tendered no exhibit.
At the close of evidence from both sides and addresses by both counsel, the learned trial Judge, Hon. Justice D. I Kolawole of the Ondo State High Court sitting at Akure in a judgment delivered on the 14th day of April, 2016 convicted and sentenced the appellant to death.
The appellant aggrieved by this conviction and sentence approached this Court by an amended notice of appeal filed on the 30/04/2018 but deemed on the 22/10/2018. The Notice of Appeal contains the following five grounds:-
1. The lower Court erred in law when it proceeded with entertaining the information and tried the case against the Appellant when the information did not contain the extrajudicial statement of the prosecution witnesses and failed to disclose a prime facie case against the Appellant.
2. The learned trial judge erred in law when he held at page 12 of the judgment (page 59 of the Record) that:
?Although Exhibit A did not relate to any of the robberies charged in the case but I believe it is relevant for it properly describe the defendant. It forms part of the res gesta (sic) in this matter at hand and it can find
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relevance and admissibility under Sections 4, 5 and 7 of the Evidence Act, 2011. It was admitted without objection which means that the defendant claim the document as his own. He also by not objecting conceded that the signed it. A person?s signature on a document is conclusive evidence that he agrees with everything in the document. See: JOSEPH v THE STATE (2011) 16 N.W. L.R. (pt. 1273) 226 @ 243
3. The learned trial Judge erred in Law when he held, at page 12 of the judgment (page 59 of the Record) thus:
?Although none of the robbery escapades and murders stated in Exhibit A is before me but Exhibit A is relevant to the extent that I have to ascribe credibility to the prosecuting witnesses and the defendant .. on the other hand, the defendant is a self confessed (sic) armed robber and murderer.?
4. The learned trial Judge erred in law when he held at page 12 of the judgment (page 59 of the Record of Appeal) that:
?Having given a deep thought to the evidence before the Court, I have no doubt that the evidence of identification before the Court is pristine. I believe PW1, PW2 and PW3 that it was the
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defendant that attacked them and robbed them as charged and as given in evidence in the Court.?
5. The learned trial Judge erred in Law when he held that all the elements of the offence charge were proved beyond reasonable doubt and went on to state at page 13 of the judgment (page 60 of the Record) that:
?Flowing from the conclusion that the prosecution has been able to prove all the essential elements of the offence of armed robbery the defendant is charged with, the concomitance of that the Court is obligated to convict the defendant. The defendant is hereby convicted of armed robbery ?
Whereof the appellant sought the order of this Court allowing the appeal, setting aside the judgment of the lower Court and discharging and acquitting the appellant.
The appellant in compliance with the Rules of Court filed their brief on the 30/04/2018. It was however deemed on the 22/10/2018. In arguing the appeal, Mr. G. C. Ugochukwu of counsel for the appellant formulated three issues for the determination of Court as follows:-
i. Whether the information (i. e. the Amended Information, dated 22 February, 2016)
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upon which the Appellant was tried, was competent and disclosed a prima facie case against the Appellant to warrant the lower Court proceeding to entertain it. (Ground 1.)
ii. Whether the trial Court was not wrong to have held Exhibit A to be relevant, form part of the resgestae and heavily relied on same to ascribe probative value to the respective evidence of the parties and to convict and sentence the Appellant. (Grounds 2 and 3)
iii. Whether the lower Court was right to hold that the prosecution succeeded in proving the guilt of the Appellant on three counts of armed robbery beyond reasonable doubt. (Grounds 4 and 5.)
On issue (1) counsel referred to the case of FRN V IBORI & ORS (2014) LPELR ? 23214 (CA) to submit that the information upon which the appellant was tried and convicted was incompetent as it did not disclose a prima facie case. That the failure of the prosecution to annex the extra judicial statements of the prosecution witnesses and the accused person was fatal to the charge and rendered the information incompetent. That it was also oppressive to the defendant who did not know in advance what the prosecution witnesses
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would state against him in Court. Counsel referred to the cases of ABACHA V THE STATE (2002) II NWLR (PT. 799, 437 AT 511 AND EDE V THE STATE (1977) I FCA, 95 AT 115. Counsel urged the Court to resolve this issue in favour of the appellant.
On issue (2) counsel submitted that Exhibit A did not relate to any of the robberies the appellant was charged with in the lower Court. That the holding of the lower Court that Exhibit A forms part of the ?res gestae? of the case and therefore relevant lacks legal basis and is misconceived. That it was irrelevant whether or not the appellant objected to the tendering of Exhibit A. Counsel contended that the lower Court having found that Exhibit A had no connection with the offences for which the appellant was being charged or tried ought to have expunged it from the records for being irrelevant. That Exhibit A was prejudicial to the appellant in the trial as the lower Court at pages 46-47 of the records heavily relied on it to convict and sentence the appellant. Counsel referred to the case of IGBINOVIA V THE STATE (1981) LPELR ? 1446 (SC).
?
The learned counsel to the appellant in the written
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address made heavy weather of the effect of confessional statement and its retraction. I do not see the relevance of this to this case in view of his earlier submission. I may touch on this in the course of this judgment but for the fact that Exhibit A was not admitted as a confessional statement in respect of the instant case, I find the submissions irrelevant and I do not deem it necessary to summarize same in this judgment. Counsel urged the Courts to resolve issue (2) in favour of the appellant.
On issue (3) Mr. Ugochukwu submitted that the case of the prosecution was based largely on suspicion. Counsel relied on the cases of ABIEKE V THE STATE (1975) LPELR 8042 (SC) and ONAH V THE STATE (1985) 3 NWLR, PT 12, 236 AT 244 to submit that suspicion no matter how strong cannot take the place of legal proof.
?
On evidence of identification, counsel argued that the prosecution?s evidence on identification as given by PW1, PW2 & PW3 was that they had not known the culprit before the robbery. That the circumstances under which PW1, PW2 & PW3 saw the alleged armed robber at gun point instilled fear in them. That the encounter with the robber
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was very brief and it was months after the incident before the so called identification took place. That none of the witnesses mentioned or relied on distinctive features like complexion, height, voice etc. That the witnesses only gave evidence of an alleged scar on the armed robber, without giving details of the nature or distinctiveness of the alleged scar. Counsel contended that all these issues raised make the identification of the appellant by the three prosecution witnesses/victims unreliable. The appellant?s counsel concluded that these issues show that the witnesses were tutored to give the evidence of identification of the appellant.
?Counsel also referred to a number of authorities, as contained in the brief to submit that the prosecution withheld evidence which would have been unfavourable to the police. That these pieces of evidence include the statement of the appellant at the Owo police station and the extrajudicial statements of the prosecution witnesses. That these pieces of evidence were withheld because they were exculpatory of the appellant. That this suppression of evidence denied the appellant a fair trial. Counsel also submitted
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that the prosecution failed to investigate the defences of the appellant to disprove them. That the investigation of this case by the police was incomplete, inconclusive, half-hearted and shoddy. That the conviction and sentence of the appellant based on all these inadequacies and shortcomings cannot be proof beyond reasonable doubt and is improper and wrongful. Counsel therefore urged the Court to allow this appeal and to discharge and acquit the appellant.
The Respondent filed their brief on the 21/11/2018 in opposition to the appeal. Mr. Leonard Ologun, DDPP, of counsel for the respondent adopted same as his legal arguments in opposition to the appeal. In it the respondent also formulated three issues for the determination of the appeal:-
(A) Whether or not the amended information dated 22nd February, 2016 upon which the Appellant was tried and convicted was competent.
(B) Whether the trial Court relied heavily on Exhibit ?A? to ascribe probative value to the evidence before it in convicting the Appellant and thereby occasioning miscarriage of justice.
(C) Whether from the totality of the evidence adduced by the prosecution,
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the guilt of the Appellant was proved beyond reasonable doubt to justify his conviction by the trial Court.
In answering issue (1) in the negative, Mr. Ologun submitted that the prosecution complied with SECTION 349(1)(a) of the Administration of Criminal Justice Law of Ondo State, 2015 by providing adequate facilities for the defence of the accused person. That the proof of evidence filed by the prosecution consisted of the summary of the evidence the prosecution witnesses will adduce at the trial. Counsel contended that there is no legal requirement for the prosecution to file extra-judicial statements of prosecution witnesses as wrongly submitted by the appellant?s counsel. Counsel also further submitted that the appellant was represented throughout the trial from 20/03/2014 ? 10/03/2016 by a counsel, Mr. Omotayo. That the appellant neither made any request for facilities nor complained of oppression at the trial Court. That it is not open to them to complain now on appeal that they were oppressed or the non filing of statements of prosecution witnesses had occasioned a miscarriage of justice to them. Counsel referred to NWEKE V STATE
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(2017) LPELR ? 42103 (SC).
On prima facie case, counsel submitted that the contention of the appellant on this issue is clearly misplaced. That the information and proof of evidence of 22/02/2016 discloses a prima facie case against the defendant. That by SECTION 196 of the Administration of Justice Law of Ondo State (Supra) every objection to a charge, shall be taken immediately after the charge is read to the accused and not later. That it is therefore not open to the appellant to raise the issue on appeal and for the first time. That this is moreso as the appellant has failed to show how he was misled by the information and proof of evidence as filed and that it occasioned a miscarriage of justice. Mr. Ologun urged the Court to resolve this issue in favour of the respondent.
On issue (2), counsel contended that the appellant?s counsel is misconceived in his submissions on this issue. That it is the law that a properly admitted extrajudicial statement forms part of the case for the prosecution. Counsel referred to the case of EGBOGHONOME V THE STATE (1993) 7 NWLR, PT 306, 383, PARAS A-B. Counsel also submitted that the trial Court did
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not rely on Exhibit A to convict the appellant but on the undiscredited evidence of PW1, PW2 & PW3. That these three witnesses positively identified the appellants as the person who robbed them while armed with a gun. Counsel referred to NDIDI V THE STATE (2007) 13 NWLR, PT 1052, 633. That the appellant?s counsel misconstrued the position of the learned trial who in no way ascribed any probative value to Exhibit A. That assuming, that he did, no miscarriage of justice was established to have been occasioned. Counsel urged the Court to also resolve this issue in favour of the respondent.
?
On issue (3), Mr.Ologun submitted that the evidence of PW1, PW2 and PW3 who were the victims amounts to eye witness evidence and has established all the ingredients of the offence of armed robbery. That their unchallenged evidence was that the three of them were robbed by the appellant while he was armed. They positively identified him because of the scar on his hand and they had opportunity to see him clearly. That the evidence of the three witnesses was neither challenged nor controverted. Counsel relied on the case of OSUAGWU V THE STATE (2013) AFWLR, PT 672,
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1605 AT 1611 PARAS E-F to submit that proof beyond reasonable doubt does not mean proof beyond all shadow of doubt. That in the face of the evidence before the lower Court, the Court was right to have held that the prosecution proved the case beyond reasonable doubt. He urged this Court to so hold, dismiss this appeal and uphold the conviction and sentence of the appellant by the trial Court.
The appellant?s counsel filed a reply brief on the 19/03/2019 which was deemed on the 25/03/2019. I have considered this reply brief and found that rather than respond to new issues raised by the respondent?s brief as provided for in ORDER 19 (5) (1) of the Rules of this Court. It is merely a repetition of the issues already raised by the appellant, like mandatory content?s of an information and identification of a witness, etc. A reply brief is not a ?second bite at the cherry? as it were which is what the appellant turned it into. It is incompetent being offensive to the Rules of Court. I accordingly discountenance it.
?
I do not see any material difference between the three issues raised by both parties. Indeed they are the same.
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It would have been tidier in my view for the respondent to have adopted the issues formulated by the appellant instead of a pretence at formulating distinct issues.
On whether the information upon which the appellant was tried was competent, I have considered the submissions of both counsel. The main grouse of the appellant is that the prosecution did not front load the extrajudicial statements of the prosecution witnesses as to sufficiently arm the appellant as to the case he is going to meet in order to adequately prepare his defence. That this would have enabled the Court determine whether there was a prima facie case. The respondent?s counsel has in my view sufficiently answered to this issue in his submissions. The amended information in respect of this matter is contained at pages 18-24 of the printed records. Pages 18-20 contain the statements of the offences while pages 21-24 contain proof of evidence, i.e list of the prosecution witnesses and a summary of the evidence that each witness will give. I am unable to see how this is not sufficient to establish whether or not there is a prima-facie case. In any event it should be remembered that
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the offence with which the appellant was charged and tried is a capital offence. In such serious felonies even if an accused/defendant pleads guilty the law requires that a ?not guilty? plea must be entered for the prosecution to prove their case by hard evidence. In like manner, this is not an offence in which the Court would base its consideration solely on the proof of evidence without hearing evidence from the witnesses. This position makes sense in view of the fact that the accused/defendant has an opportunity to make a ?no case submission? if he is of the view that the evidence adduced by the prosecution is so weak that he does not require to be called to enter his defence. In the instant case the accused/defendant did not make ?a no case submission?. Can the inference then be made that it is because they accept that there is a prima facie case?
The Criminal Procedure that regulates this case is the Administration of Criminal Justice Law of Ondo State 2015. SECTION 349(1)(a) of this law provides as follows:
?An information shall be filled in the registry of the Court before whom the prosecution seeks
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to prosecute the offence, and may include:
(a) The proof of evidence consisting of:
(i) list of witnesses
(ii) the list of exhibit(s) to be tendered
(iii) copies of statement(s)
(iv) any other document, report or material that the Prosecution intends to use in support of its case At the trial;
(v) particulars of place of custody where known;
(vi) particulars of plea bargain arranged with the Defendants, if any
(vii) any other document as may be directed by Court.
The expression ?may? as used in this section is permissible and not mandatory. This section shows clearly that there is no requirement to frontload the extrajudicial statements of witnesses. Neither did the decision of this Court in FRN V IBORI (SUPRA) which learned counsel relied heavily on. This is as it should be because the extra judicial statement of a witness (unlike that of an accused) is inadmissible in evidence except if it is to contradict the witness as to the evidence he gave in Court vis a vis his previous statement to the police. See the cases of THE STATE V OGBUBUNJO & ANOR (2000)13 NWLR, PT 685, 446; ESANGBEDO V THE STATE
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(1989) 4NWLR, PT 113, 57 and UKPE V THE STATE (2001) 18 WRN, 84 AT 114. What is more, subsection (a) (vii) of the law takes care of this. It provides thus:-
?any other document as may be directed by the Court.?
The law in my view is deliberately permissible. This ensures that the discretion of the prosecution to call such number of witnesses as are enough to prove its case is not curtailed. At the time of this last quoted provision, the law guarantees that the defendant has access to any document, report or material in possession of the prosecution which they have not front loaded. All the defendant has to do is make the necessary application to the trial Court. It is evident therefore that there is no merit in this submission of counsel. Besides this is not the proper venue to make a complaint on the information upon which the appellant was tried. This complaint is caught up by SECTION 196 of the Administration of Criminal Justice Law which provides that:-
?Any objection to a charge for any formal defect on the face thereof shall be taken immediately after the charge has been read over to the accused and NOT
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LATER.? (Emphasis provided).
This provision makes this submission of counsel incompetent. What is more the appellant was represented throughout the proceedings by counsel. They never raised any of these procedural defects before the trial Court. There is no evidence on record that they made an application to Court for the prosecution to furnish them with any material which application was refused. There is no contention that this failure(s) affected the jurisdiction of the trial Court in any way or that it has occasioned a miscarriage of justice to the appellant and what that miscarriage of justice is. I find that there is no merit in this submission. I therefore resolve this issue in favour of the respondent and against the appellant.
On issue (2) I have gone through the judgment of the lower Court again as contained at pages 48-60 of the printed records. I have seen the reference made to Exhibit A in terms of it ascribing credibility to the prosecution witnesses and the defendant. I concede that the learned trial judge may not have been as dispassionate as he should have been but this comment made per incuriam in my view does not
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negatively affect the entire proceedings sufficient to jeopardize the judgment. This comment is contained at page 59 of the records at the tail end of the judgment. It has to do with identification of the appellant by the prosecution witnesses and the additional reasons why he would believe the witnesses. There is nothing to show that the trial judge relied on Exhibit A to convict the appellant. In other words I find that the admission of Exhibit A in evidence even if wrongful is not fatal to the case of the prosecution. In the cases of ONOCHIE V ODOGWU (2006) 6 NWLR (PT 975) and DAGACI OF DERE V DAGACI OF EBWA (2006) 7 NWLR, PT 979, 382, the Supreme Court held that if a piece of evidence is wrongly received in evidence by the trial Court, an appellate Court has the inherent jurisdiction to exclude it or expunge it from the records notwithstanding that counsel at the trial Court did not object to the admissibility of the piece of evidence. Pursuant to this authority I hereby exclude Exhibit A and I find that it has no negative affect whatsoever on the case. There is no finding of fact that was based on Exhibit A which I can interfere with and set aside for
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being perverse. See OLAYINKA V STATE (2007) 9 NWLR, PT 1040, 561 (SC). Like I pointed out earlier the judgment of the Court is found at pages 48-60. This comment is contained at page 59 more like an observation and conclusions of the Court as the Court had already made all its findings. Again this issue was never raised in the address of the accused person to the lower Court. If the Court had been guided that the document even though admitted without objection was inadmissible the trial Court may have followed the authority of AGBI V OGBEH (2006) 11 NWLR, PT 990, 65 (SC) and discountenanced it when writing its judgment.
The ancillary question to ask and answer is whether this alleged wrongly admitted Exhibit A influenced the trial judge in passing sentence. I will answer this question without hesitation that it did not. This is premised on the legal principle that in a capital offence like this one where the law prescribes a mandatory death penalty, the Court cannot impose a lesser sentence. See BALOGUN V A. G. OGUN STATE (2002) 6 NWLR, PT 763, 512 (SC) and AMANCHUKWU V FRN (2007) 6 NWLR, PT 1029, 1 (CA). It is of no moment therefore that in sentencing the
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appellant the learned trial Judge added this phrase
?.. I think the convict richly deserves his punishment as he confessed by his own month (sic) the killing of someone while they were robbing and the killing of a police officer for dating the same girl with their gang leader.?
While these comments may appear prejudicial and even inappropriate, they are not capable of influencing and could not have influenced the trial judge in passing sentence on the appellant. This is for the simple reason as stated earlier that he has no discretion to exercise in the matter. From the foregoing I resolve this issue also in favour of the respondent and against the appellant.
In issue (3) the relevant consideration is first the issue of identification of the appellant. The Supreme Court in the case of EYISI V THE STATE (2001) 8 WRN 1 AT 9-10 has held that identification parade is not the only way of establishing the identification of an accused person in relation to the offence charged. Where the witness has ample opportunity to identify the accused a parade is not necessary. The Court held specifically that.<br< p=””
</br<
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?Recognition of an accused may be more reliable that identification.?
In the instant case, all the three witnesses were robbed by the appellant. Their evidence is that it was day light or if dark there was electricity. The robber was not masked. He did not order them to lay face down in which case they may not have been able to see him. The robber was alone. All the victims are men. They probably sized him up to decide whether they could overpower him! The evidence of PW1, PW2 & PW3 is very clear, direct and positive that they recognized the appellant. According to PW1 this incident happened in the morning around 10 am. He stated that he hesitated in giving the robber his handset and purse but for his sister who was pleading with him. He said:
?I was looking at him. I looked at the defendant very well that day. He had scars on his two arms. On the day he was arrested and I was invited to the police station; I recognized him immediately as the robber who attacked me and my sister some two months earlier.?
?
PW1 remained unshaken in cross examination regarding the fact that he recognized the appellant very well as the
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person who robbed him and his sister. Even PW2 under cross examination said he saw the appellant?s face and he did not have mask on. That even though a little dark around 5 am but there was electricity where the appellant robbed him in the mosque. Indeed PW3 stated in his evidence that not only did he recognize the appellant as the man who robbed him and his wife but he arrested him and called the police who took him to the station. He too said he saw the man very well and he had scars on his arms. I find that these three witnesses properly identified the appellant and the identification could not be mistaken. I so hold.
?
On suppression of evidence I have already made a finding that in respect of the extra judicial statements of witnesses these are clearly not admissible where the witnesses are present to testify except for the purposes of contradicting their testimony. The practice is that the prosecution will list out the witnesses it wishes to call. It may call all the listed witnesses and it may not. Like in this case the prosecution has listed eight witnesses as contained at pages 22-24 of the printed records. It called only four. It explained
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why it could not call the 5th one, CPL Tanko Salihu who the prosecutor counsel explained was on a course in Jos and he did not know the duration of the course.
The prosecuting counsel had analysed his case and perhaps evaluated the situation and decided to close his case. It was now open to the defence whether they wanted to call this witness and the two others who were not called but listed on the proof of evidence for cross examination. There is nowhere on the record that the defence made this request and the prosecution refused to honour it or the Court failed to direct the prosecution to produce such witness for cross examination. I quite agree with the appellant?s counsel that in a criminal trial, the defence is entitled to see any written statement in possession of the prosecution for the purpose of cross examining such a witness and to tender it to impeach his credit. This does not mean the prosecution has an obligation to frontload all the witness statements as wrongly contended by counsel. What it means is what I have explained that the defence is free to request for any such statement or document in possession of the prosecution. It is
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only then and if there is a failure or refusal to accede to such a request that counsel could talk of suppression of evidence. In the circumstances I hold that the submissions on suppression of evidence are made out of con, misconceived and accordingly set aside.
The learned counsel to the appellant at pages 25-26 of his brief dwelled quite a lot on the failure of the prosecution, especially the police to investigate the defence raised by the appellant. He quoted copiously from OLAYINKA V THE STATE (2007) 9 NWLR, PT 1040, 561 AT 587. That case talks of alibi. From the records here I am unable to see where the appellant raised the defence of alibi. I do not see how a denial of involvement in the crime or the fact that the appellant was a bricklayer and was working at a site for some time prior to his arrest, or the fact that there is a gang which specializes in robbing people in his area with the gang leader looking like him amount to defenses which the police or prosecution should investigate. The appellant has not raised alibi which is what if he raised at the earliest opportunity the police has an obligation to investigate. The word
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?Alibi? is a latin expression which means ?I was elsewhere?. The defence seeks to persuade the Court that the accused could not possibly be at the scene of the crime as he was elsewhere, most probably there were people who could testify that at the time of the alleged incident or act he was not at the scene. However where an accused person is unequivocally pinned to the locus in quo as the one who committed the offence the defence no longer avails him. See SOWEMIMO V STATE (2004) 11 NWLR, PT 885, 515 (SC).
In the instant case the unchallenged and uncontroverted evidence of PW3 is unequivocal that the appellant was the one who robbed him. PW3 is Rashidi Mamidu of Isuadu Layout, Osokia, Owo. He testified in part at Page 41 of the printed records as follows:-
?The incident happened during the day. The man also removed my DVD. I saw the man very well. He had scar on his arms. After he left me I raised alarm. We searched the nearby bush but we did not get him. The man did not have any mask on. Later I saw the man who robbed me at Owo. I was not able to get him arrested that first time. I saw him again and with the assistance
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of people. I was able to arrest him we call in the police and he was taken to the police station. The man who robbed me that Sunday morning is the defendant.?
It is crystal clear that the appellant was fixed at the house of PW3 on Sunday 13th January, 2013 when he robbed him and his wife. He was the one who arrested the appellant and invited the police to take him away. The summary of evidence of CPL Tanko Salihu at page 23 of the records confirms that the matter was transferred to them at ?B? Division of the NPF Owo from Isuadu Police outpost on 24th January 2013. This corroborates PW3?s testimony. From the records, no defence was available or raised in favour of the appellant that was available to him. This issue also fails and is resolved against the appellant and in favour of the respondent.
Before ending this judgment I feel compelled to comment on the attitude of counsel towards their client?s cases. The case of an accused or defendant is to be fought principally in the trial Court and not this Court. This is an appellate Court which most often than not is guided by the evidence on record. We cannot resort to
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conjectures in the absence of supporting evidence as being urged on me by learned counsel to the appellant. It is an unnecessary tasking on this Court. Whereas in this case the appellant only testified in his own behalf, called no other witness and tendered no exhibit, he wrote a 31 pages single spacing 10 font size brief and another 6 pages of the same characteristics in the reply brief. I have said it repeatedly (but maybe not often enough) and it is very well settled that a brief no matter how well written and how voluminous can never take the place of evidence. It is indeed counterproductive and a disservice to the litigant for his counsel to engage in writing this brief. The danger is that more often than not the fine points of the arguments are lost in this mace of unnecessary legal jargons and semantics. Counsel should remember that a brief is neither a thesis nor a lecture. If the Court were to be a lecture theatre then the judge and not the counsel is the adjudged lecturer! A good brief should be brief and to the point. It should point out the complaint, show from the record where and how it occurred and point out the law that deals with it. To be
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reeling out issues of law and citing authorities without marrying them to the facts of the case is not only a big irritation that the Court can do without but a big waste of ample judicial time.
On the whole and having resolved all the issues against the appellant this appeal is hereby dismissed for being unmeritorious. The judgment of the lower Court presided over by Hon. Justice D. I. Kolawole and delivered on the 14/04/2016 is hereby affirmed including the order for conviction and sentence of the appellant.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: Having read in draft before now the lead judgment just delivered by my learned brother, Patricia Mahmoud JCA, in this case, I do concur that this appeal has no merit. The evidence at the trial Court against the Appellant herein as an accused person, thereat the trial, was overwhelming such that this Court cannot interfere with the findings of facts based on undiscredited evidence.
I concur with the affirmation of the conviction and sentence, leading to the dismissal of the appeal.
?RIDWAN MAIWADA ABDULLAHI, J.C.A.: I have had the privilege of reading in draft the
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lead judgment delivered by my learned brother, Patrica Ajuma Mahmoud, JCA. the three (3) issues formulated by the learned counsel (or the Appellant which have common features with those three (3) issues raised by the Respondent were property dwelled into and considered in the lead judgment with the consequence agreeable determination by my lord.
I therefore adopt the reasoning and conclusion reached in the lead judgment. The appeal as provided by the Appellant lacks the required merit and woefully failed, As such equally dismissed by me.
I affirmed the judgment of the Court of trial as delivered by Hon. Justice D. I. Kolawole on the 14 of April, 2016 in Charge No. AK/102C/2013
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Appearances:
Mr. G. C. Ugochukiwu with him, Messrs L. C. Ohineme and O. OdumadeFor Appellant(s)
Mr. Leonard Ologun (DDPP, Ondo State MOJ) with him, Mr. B. V. Falodun (ACLO)For Respondent(s)
Appearances
Mr. G. C. Ugochukiwu with him, Messrs L. C. Ohineme and O. OdumadeFor Appellant
AND
Mr. Leonard Ologun (DDPP, Ondo State MOJ) with him, Mr. B. V. Falodun (ACLO)For Respondent