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TOSIN v. STATE

TOSIN v. STATE

(2021)LCN/15644(CA)

In the Court of Appeal

(AKURE JUDICIAL DIVISION)

On Thursday, June 24, 2021

CA/AK/61C/2017

Before Our Lordships:

Rita Nosakhare Pemu Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

James Gambo Abundaga Justice of the Court of Appeal

Between

OTUYEMI TOSIN APPELANT(S)

And

THE STATE RESPONDENT(S)

 

RATIO

WHETHER OR NOT PARTIES ARE ALLOWED TO FILE MANY INTERLOCUTORY APPEALS

​Decidedly, it is desirable that parties should refrain from filing appeals piecemeal. In other words, filing many interlocutory appeals where such rulings can be heard together with the final decision. However, the proper procedure to follow in doing so is to seek leave of Court to file such interlocutory appeal with its final decision once it is out of time. Failure to do so would make such grounds(s) of appeal and issues formulated therefrom incompetent. OGIGIE & 3 ORS. V. OBIYAN (1997) 10 SCNJ 1 AT 4; EKEMEZIE V. IFEANACHO (2019) LPELR-46518 SC; OKPARA V. ANOZIE & ORS. (2020) LPELR-49296 (CA). 
In the circumstance, the Appellant having failed to seek leave to appeal the ruling of the Court below delivered on 2/12/2016, he cannot now appeal same. The effect is that ground 2 and issue 2 of the Appellant’s issues for determination are hereby struck out.  PER PEMU, J.C.A.

RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Ondo State holden in Akure delivered on the 17th day of April, 2018 in Charge No. AK/7C/2016 whereby the Appellant was convicted for the offence of rape and sentenced to life for rape and seven years imprisonment for cultism.

BRIEF FACTS OF CASE
The Appellant with others were arraigned before the Court below on a four counts charge of rape of the following persons viz: Amuda Damilola, George Omolola and Akintolayo Abigail respectively an offence contrary to Section 257 of the Criminal Code Law Cap. 37, Vol. 1, Laws of Ondo State 2006.

In count 4, the Appellant was charged with the offence of being a member of a secret cult contrary to Section 1 of the Cultism, Secret Cult and Similar Activities (Prohibition) Law, Cap. 39, Vol. 2 Laws of Ondo State, 2006. – pages 28 and 29 of the Record of Appeal.

​Upon his arraignment on the 29th of July, 2016, he pleaded not guilty to all four counts. Trial commenced on that day, with the Prosecution calling six (6) witnesses, and tendered Exhibits P1, P2, P3, P4, P5, P6, P7 and P8 respectively. 
On the 2nd day of December 2016, there was a trial within trial and Exhibit P4 was tendered and admitted through PW1. 

The Appellant testified himself and at the close of the case in its judgment delivered on the 17th day of April, 2018, convicted and sentenced the Appellant to life imprisonment for rape and cultism – pages 226-234 of the Record of Appeal.

The Appellant is dissatisfied with the decision of the Court below and being desirous of appealing same, filed a Notice of Appeal on the 4th day of July, 2018 with one Ground of Appeal (page 235 of the Record of Appeal) which was subsequently amended by an order of this Honourable Court dated 26th September, 2019 encapsulating three (3) additional Grounds of Appeal dated 8th October, 2019. 

The Record of this appeal was deemed compiled and transmitted to this Honourable Court on the 26th day of September, 2019. 

The Appellant filed his brief of argument on the 17th day of September, 2020, but same was deemed filed on the 22nd day of February, 2021. It is settled by Omotayo Olofinbinu Esq. 

The Respondent filed his brief of argument on the 8th day of February, 2021 but same was deemed filed on the 22nd day of February, 2021. It is settled by Stella Adegoke (Mrs.) 

The Appellant filed his reply brief of argument on the 23rd day of March, 2021 but same was deemed filed on the 25th day of March, 2021. 

The Appellant distilled three (3) issues for determination from the Grounds of Appeal. 
They are:
1. WHETHER THE APPELLANT’S RIGHT TO FAIR HEARING AS GUARANTEED UNDER THE CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA, 1999 (AS AMENDED) WAS INFRINGED UPON BY THE LOWER COURT, WHEN THE APPELLANT WAS DIRECTED TO CONDUCT HIS CASE BY HIMSELF ON 31ST OCTOBER, 2016, IN THE ABSENCE OF COUNSEL RPRESENTING HIM TO WHICH THE LOWER COURT RELIED ON TO CONVICT HIM?
2. WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT OR JUSTIFIED IN THE DECISION OF THE LOWER COURT THAT EXHIBIT P4, ALLEGED CONFESSIONAL STATEMENT OF THE APPELLANT WAS RIGHTLY ADMITTED THROUGH TRIAL-WITHIN-TRIAL?
3. WHETHER THE LEARNED TRIAL JUDGE WAS RIGHT TO HAVE CONVICTED THE APPELLANT FOR CULTISM ON THE STRENGTH OF EXHIBIT P4 WHICH WAS HELD TO BE CONFESSIONAL STATEMENT IN SPITE OF THE FACT THAT THE APPELLANT SAID HE WAS FORCED TO SIGN IT AFTER IT WAS WRITTEN BY SERGEANT IBITOYE KOLE WITH FORCE NO. 357375 AND THE TRIAL JUDGE CONFIRMED THAT CULTISM WAS NOT INVESTIGATED BY PW4 AND PW6?

The Respondent distilled four (4) issues from the Grounds of Appeal which are an adoption of the issues for determination distilled by the Appellant from the Grounds of Appeal. 

I shall consider this appeal based on the issues for determination distilled by the Appellant on the 25th day of March, 2021, the parties adopted their respective brief of arguments. 

ISSUE NO. 1 
It is the Appellant’s contention that the principle of fair hearing was contravened that the Appellants’ Counsel did not appear before the Court below on the 31st day of October, 2016. But the Court compelled the Appellant to cross-examine PW2. That the fact that the Appellant has expressed his intention not to continue with the defence ought to have led to adjournment of proceeding of 31st October, 2016. 

He submits that even though the Court below expressed displeasure about how the case was going on, adjourning the proceeding of 31st day of October, 2016, would have served end of justice – MOHAMMED V. OLAWUNMI & ORS. (1990) 2 NWLR (PT. 133) SC.

That non-appearance of Counsel for defence on 31st October, 2016 should not have led to the lower Court compelling the Appellant to conduct his case by himself. That the Prosecuting Counsel had prayed Court for the continuation of proceeding of 31st October, 2016 without considering the future of the Appellant who was 24 years old. The Court acceded to that request. Submits that the sum total is that the Appellant was denied fair hearing. ODESSA V. FRN (2006) ALL FWLR (PT. 295) 738 CA. 

That assuming (but without conceding) that the Court below was right in allowing the Prosecution Counsel to lead PW2 in evidence on 31st day of October 2016, the Court below should have adjourned the proceeding after examination in chief, in order to allow Defence Counsel to cross-examine PW2 on the next adjourned date – 17th November, 2016, in the interest of justice. –SANI V. STATE (2017) LPELR-43475 SC. That the Court below should have adjourned proceeding of 31st day of October, 2016, for cross-examination to take place later. 

​He submits that the Court below did not allow the Appellant to make use of his right to fair hearing. Urging Court to resolve this issue in favour of the Appellant. 

ISSUE NO. 2 
The Appellant submits that the Appellant wrote Exhibit P4 (Confessional Statement) voluntarily. That the cross-examination of the Appellant by the Respondent did not discredit the Appellant’s examination in chief especially on the issue of torture by Mr. Kole Ibitoye.

Submits that the Court below merely placed premium on the fact that Sgt. Kole Ibitoye did not write statement for the Appellant and that Exhibit P3 did not support Appellant without adverting itself to the uncontroverted effect of evidence of the Appellant that “PW1 tortured him that he was a victim of electric shock”

That the extra-judicial statement of the Appellant as confessional statement before the Court below was not made voluntarily by the Appellant. 

The Appellant submits that a careful perusal of Exhibit P8 cannot occasion the conviction of the Appellant for rape. 

ISSUE NO. 3 
Submits that the Prosecution failed to prove the offence of cultism against the Appellant beyond reasonable doubt, but the Court below went ahead to convict him for the offence of Cultism on the strength of Exhibit P4. 

He submits that the Appellant had stated in Exhibit P8 that he did not belong to any secret cult. This statement was not investigated. Yet, the Court below convicted him for the offence of cultism. That no investigation was carried out on cultism. Submits that the offence of cultism was not proved beyond reasonable doubt. 

RESOLUTION 
ISSUE NO. 1 & 2 
I shall resolve issues 1 & 2 together. 

From records, at the proceedings of Court of the 31st day of October, 2016, the Court below observed thus:
“At the last adjourned date, defence Counsel was absent. Defendants undertook to contact their Counsel. It is on record that on that date, their relatives were in Court. They ought therefore to have ensured their Counsel appears today. If Mr. Olomimoyo or his Counsel is briefed to take up defence either or both of them should be in Court today… the interest of justice is not a one-way affair. I agree with Adegoke that this is an effort to frustrate Prosecution. In the circumstances, I will not adjourn the case. I will take the 2 witnesses that are available. Defendants are at liberty to cross-examine each witness thereafter.” Pages 143-144 of the Record of Appeal. 

Earlier on, the Court below had observed thus:
“On the 17th of August, 2016, D.C. Olafimihan P.L.O. appeared for the State. Femi Omoleye Esq. appeared for defence. By agreement of both Counsel, the case was adjourned to 20th October 2016 for further hearing. On 20th October, 2016, neither Mr. Omoleye nor O. S. Olomimoye of Counsel who initially appeared for defence was in Court hence, the case was adjourned to today for further hearing. I have waited for either of the defence Counsel to be in Court from 9 am to 10:10 am but none has shown up. I hereby direct the Registrar of this Court Mrs. Bello to ask the Defendants where their Counsel is. 
Mrs. Bello – 1st Defendant where is your Counsel Otuyemi Tosin: I have not seen him…” 

​Otuyemi Tosin is the Appellant in this appeal. The offences for which he is charge do not carry capital punishment. 

It is my view that upon resumption of hearing and the appearance of Counsel for the Appellant, he had the opportunity of recalling the Prosecution witnesses and putting relevant questions to them. But he did not. This simply means that Counsel for the Appellant was satisfied with the questions put to PW1 and PW2 by the Appellant. 

On the 31st day of October, 2016, the Appellant was afforded the opportunity to cross-examine PW3. 

There is no breach of the right of fair hearing of the Appellant and I so hold.

On the issue of trial-within-trial, I have carefully perused the argument of the Appellant in Paragraph 2.08–2.11 of his reply brief filed on the 23rd day of March, 2021, deemed on the 25th day of March, 2021, I must say that the Court below on the 2nd of December, 2016, conducted trial-within-trial. Counsel on both sides made submission before the Court and the Court ruled in favour of the Prosecution (Respondent). It is my view that the Appellants’ right of appeal was activated by that ruling.

​Decidedly, it is desirable that parties should refrain from filing appeals piecemeal. In other words, filing many interlocutory appeals where such rulings can be heard together with the final decision. However, the proper procedure to follow in doing so is to seek leave of Court to file such interlocutory appeal with its final decision once it is out of time. Failure to do so would make such grounds(s) of appeal and issues formulated therefrom incompetent. OGIGIE & 3 ORS. V. OBIYAN (1997) 10 SCNJ 1 AT 4; EKEMEZIE V. IFEANACHO (2019) LPELR-46518 SC; OKPARA V. ANOZIE & ORS. (2020) LPELR-49296 (CA). 
In the circumstance, the Appellant having failed to seek leave to appeal the ruling of the Court below delivered on 2/12/2016, he cannot now appeal same. The effect is that ground 2 and issue 2 of the Appellant’s issues for determination are hereby struck out. 

The result is that issue No. 2 is resolved in favour of the Respondent and against the Appellant. 

ISSUE NO. 3 
In Exhibit P4, the Appellant confessed exhaustively to the offence of cultism. The allegation by the Appellant that the offence of cultism against the Appellant was not investigated by the Police is misconceived. This is because, the Appellant confessed to belonging to a cult – Eiye Confraternity. 
PW6, Sgt. Orisanmi Samuel testified thus:
“I am a member of the team that investigated case of rape and cultism.” 

Exhibit P4 and P8 (extra-judicial confessions of the Appellant) shows that he confessed to being a member of Eiye Confraternity. Answering questions put to him in re-examination, PW4 said that he found tattoo marks on the right hand of the Appellant – page 196 of the Record of Appeal. This does not prove cultism, but it is a vestige of occultic tendencies. 

These all amount to circumstantial evidence and coupled with the confessional statement of the Appellant, same is compelling enough to nail him to the offence of cultism. And that beyond reasonable doubt. 

Exhibit P4 having been admitted in evidence, and Ruling on the trial-within-trial having found for the prosecution, the Court below was right to have relied on Exhibit P4 in convicting the Appellant. A trial-within-trial in a criminal matter forms part of the final judgment. This is because, it is only put in place to test the veracity of the allegation by an accused person that the statement he made to the Police was procured under duress. 
Thus, a ruling one way or the other by the Court below does not stop that ruling from becoming a part of the main judgment of Court. The decision in a trial-within-trial would determine whether the alleged confessional statement should be admitted in evidence or jettisoned.

I am of the view that the offence of cultism is proved against the Appellant.

The issue is resolved against the Appellant and in favour of the Respondent.

The appeal fails and same is dismissed. The judgment of the High Court of Ondo State holden in Akure delivered on the 17th day of April, 2018, in Charge No. AK/7C/2016 is hereby affirmed.

HAMMA AKAWU BARKA, J.C.A.: The judgment just delivered was made available to me in draft. I agree with the reasoning and conclusion reached to the effect that this appeal is bereft of any merit and accordingly dismiss the same.

JAMES GAMBO ABUNDAGA, J.C.A.: I have been availed a draft of the judgment delivered by my learned brother, Rita Nosakhare Pemu, JCA which I have perused.

​I agree that the appeal fails and thus dismissed.

Appearances:

Olajide Italoye Esq. For Appellant(s)

Stella Adegoke, Director Legal Drafting and Law Review, Ministry of Justice Ondo State, with him, Blessing Oluwaniyi, Senior Legal Officer, For Respondent(s)