UGOALA v. STATE OF LAGOS
(2020)LCN/15703(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Friday, September 25, 2020
CA/L/1108C/2019
Before Our Lordships:
Obande Festus OgbuinyaJustice of the Court of Appeal
Tijjani AbubakarJustice of the Court of Appeal
JamiluYammama TukurJustice of the Court of Appeal
Between
STANLEY UGOALA APPELANT(S)
And
THE STATE OF LAGOS RESPONDENT(S)
RATIO:
CONFESSION BEING THE BEST AND STRONGEST EVIDENCE THAN THAT OF EYE-WITNESS
Indeed, the kingly position of confession in criminal jurisprudence cannot be over-emphasised. Under our procedural law, confession has been classified as the best and strongest evidence, stronger than that of an eye-witness. See Smart v. State (2016) All FWLR (Pt. 826) 548, (2016) 9 NWLR (Pt. 1518) 447; Asuquo v. State (2016) 14 NWLR (Pt. 532) 309; Dibia v. State (2017) 12NWLR (Pt. 1579) 196; FRN v. Barminas (2017) 15 NWLR (Pt. 1588) 177; Akpa v. State (2008) 14 NWLR (Pt. 1106) 72. By a confession, an accused surrenders himself to the law and becomes his own accuser, see Adeleke v. State (2013) 16 NWLR (Pt. 1381) 556. The appellant’s confessional statements, Exhibits P(2) and P(4), drown his right to presumption of innocence, which is entrenched in Section 36(5) of the 1999 Constitution (as amended), as well as make him the undoubted owner of the requisite mens rea and actus reus in relation to the offence of conspiracy preferred against him. Their contents are a classic evidence of pure admission. OBANDE FESTUS OGBUINYA, J.C.A.
THE COURT DID NOT DEFILE THE LAW WHEN IT ADMITTED AND ACTED ON THE CONFESSIONAL STATEMENT
In the light of this expansive juridical survey, done in due allegiance to the law, the lower Court did not defile the law when it admitted and acted on the appellant’s confessional statements, ExhibitsP2 and P4, in the trial and conviction of the appellant. I therefore with due respect, dishonour the learned appellant’s counsel’s salivating invitation to crucify the decision of the lower Court on the undeserved shrine of wrongful admission and reliance on the confessional statements, Exhibits P2 and P4, for want of legal justification. I will not hesitate to resolve issue 2 against the appellant and in favour of the respondent. OBANDE FESTUS OGBUINYA, J.C.A.
THE COURT AND THE PARTIES ARE BOUND BY THE RECORD
It is a settled elementary law beyond any peradventure of doubt, that the Court and the parties are bound by the record. Neither of them can factor into a record what is not there nor subtract from its content. An appellate Court must read the record in its exact content. See Udo v. State (2006) All FWLR (Pt. 337) 456, (2006) 15 NWLR (Pt. 1001) 179; Bassey v. State (2012) All FWLR (Pt. 633)1816, (2012) 12 NWLR (Pt. 1314) 209; Osung v. State (2012) All FWLR (Pt. 650) 1226, (2012) 18 NWLR (Pt. 1332) 256; Mohammed v. State (2015) All FWLR (Pt. 793) 1926, (2015) 13 NWLR (Pt. 1476) 276; Offor v. State (2012) 18 NWLR (Pt. 1333) 421; State v. John (2013) All FWLR (Pt. 696) 516, (2013) 12 NWLR (Pt. 1368) 337.
THE INFLEXIBLE POSITION OF THE LAW AND THE ABUSE OF COURT PROCESS
It will be tantamount to a flagrant transgression of this inflexible position of the law for this Court to hold that a charge was pending in the Magistrates’ Court when no charge sheet is located in the record. For an abuse of Court process to thrive in the firmament of duplicity of cases, there must co-exist two actions which a Court will use their dates of commencement as the major barometer to measure/gauge their chronological judicial ages to determine the one that is later-in-time and liable to vacation. The conspicuous absence of a charge sheet in the record drains this Court of the jurisdiction to make such comparison which is a desideratum in the, domain of abuse of Court process. The appellant’s accusation of abuse of Court process against the case which mothered the appeal is without evidence of a pending charge sheet, devoid of any legal parentage to perch and command any potency. The net effect is obvious. It will be hostile to the law to vacate the case as an abuse of Court process. It is not guilty of the allegation. In sum, I resolve the issue 3 against the appellant and in favour of the respondent. OBANDE FESTUS OGBUINYA, J.C.A.
ASCERTAINMENT OF THE PIECE OF EVIDENCE BEING SOILED BY CONTRADICTIONS
I have in total allegiance to the dictate of the law, situated this highlighted area in the respondent’s evidence with the harmful incidents of contradiction x-rayed above. The raison d’etre for the juxtaposition is plain. It is to ascertain if the piece of evidence is soiled by contradictions. Let me place on record, pronto, that the evidence offered by PW2 and PW3, on the gun were not events that occurred concurrently. The PW2 gave account of events, which precipitate the arrest of the appellant, on 28 February, 2012, anterior to the release of the victim, PW1, when the appellant was not armed with a gun. The evidence of PW3, which was in March 2012, posterior to the release of the victim was on the locus criminis where he found a gun used by the culprits. So, the evidence of each of them on the point of gun was tailored alongside their different investigative activities. OBANDE FESTUS OGBUINYA, J.C.A.
THE CONCEPTS OF CONTRADICTIONS AND HEARSAY EVIDENCE
This legal anatomy conducted on the concepts of contradictions and hearsay evidence is an eloquent testimony that the lower Court did not run foul of the law in its utilisation of the evidence of PW1 – PW3. It will smell of judicial sacrilege to tinker with a judicial exercise that is not injudicious or hostile to the law. In the aggregate, I resolve issue 4 against the appellant and in favour of the respondent. OBANDE FESTUS OGBUINYA, J.C.A.
OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the Leading Judgment): This appeal probes into the correctness of the decision of the High Court of Lagos, holden at Ikeja (hereinafter addressed as ‘the lower Court), coramjudice; K. A. Jose J., in suit no. ID/51c/2013, delivered on 19 April, 2018. Before the lower Court, the appellant and the respondent were the defendant(accused) and the complainant respectively.
The facts of the case which transformed into the appeal are amenable to brevity and simplicity. On 27 February, 2012, one Mrs. Mercy Olufowose was robbed with gun and kidnapped in her poultry farm in Mowonla in Ikorodu by the appellant and his cohorts at about 3:00pm. They took her into a bush. They opened negotiation with the husband of the victim – Mrs Mercy Olufowose. They demanded for a ransom of N50M from her husband – Ebenezer Olufowose. Her husband arranged with the police who took the agreed ransom to the nominated place. Eventually, the police got them arrested. After due investigation, the appellant and one Bright Nwakpa were arraigned before the lower Court in a 4-count amended charge/information for the offences of conspiracy to commit kidnapping, conspiracy to commit armed robbery, and armed robbery contrary to the provisions of Sections 409, 269, 297 and 295(2)(b) of the Criminal Code Law of Lagos State, 2011. The appellant pleaded not guilty to the information.
Following the plea of not guilty, the lower Court had a full-scale determination of the case. In proof of the case, the respondent fielded three witnesses, PW1 – PW3. In disproof of the case, the appellant testified in person as DW1. Tons of documentary evidence were tendered as exhibits. At the closure of evidence, the parties, through their respective counsel, addressed the lower Court in the manner required by law. In a considered judgment delivered on 19 April, 2018, found at pages 81-103 of the main record, the lower Court found the appellant guilty on all the counts, convicted him and sentenced him to terms of imprisonment and death. The appellant was aggrieved by the decision. Hence, on 18 July, 2018, the appellant lodged a 10-ground notice of appeal found at pages 104 – 114 of the main record, wherein he prayed this Court for:
(a) An order allowing the appeal and setting aside the judgment of the Honourable Justice, K. A. JOSE delivered on 19 April, 2018.
(b) An order quashing all the four (4) counts charges contained in the amended information dated 22 May, 2013 in charge no: ID/51c/2013.
(c) An order discharging and acquitting the appellant on all counts of the charge no: ID/51c/2013.
Thereafter, the parties through counsel filed and exchanged their respective briefs of argument in line with the procedure governing the hearing of criminal appeals in this Court. The appeal was heard on 9 September 2020.
During its hearing, learned appellant’s counsel, O. E. Ogungbeje, Esq., adopted the appellant’s brief of argument filed on 27 May, 2020 but deemed properly filed on 28 May, 2020 and the appellant’s reply brief filed on 10 August, 2020 but deemed properly filed on 9 September, 2020, as representing his arguments for the appeal. He urged the Court to allow it. Similarly, learned respondent’s counsel, Abiola Adeyinka, Esq., adopted the respondent’s brief of argument filed on 3 July, 2020 but deemed properly filed on 9 September, 2020, as forming his reactions against the appeal. He urged the Court to dismiss it.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
In the appellant’s brief of argument, learned counsel distilled five issues for determination to wit:
1. Whether the learned trial judge was right when he tried and convicted the appellant based on an amended information/charge filed by the respondent on 22 May, 2013 without an attached or accompanying proof of evidence as required by law.
2. Whether the learned trial judge was right when he admitted Exhibits P2 and P4 and held that Exhibits P2 and P4 were voluntarily made by the appellant and relying on Exhibits P2 and P4 in convicting the appellant when the mandatory, legal condition precepts and requirements of law were violated and not met by the respondent.
3. Whether the learned trial judge had jurisdiction when he entertained and assumed jurisdiction on the charge/information filed by the respondent against the appellant during the pendency of another charge on the same offence against the appellant being an abuse of Court process.
4. Whether the learned trial judge was right when he relied and acted upon the contradictory and conflicting testimonies of the respondent’s 1st, 2nd and 3rd witnesses in convicting the appellant.
5. Whether the learned trial judge was right when he delivered judgment, convicted and sentenced the appellant in his absence.
In the respondent’s brief of argument, learned counsel crafted five issues for determination, namely:
1. Whether the learned trial judge was right in law to have tried and convicted the appellant on the amended information/charge which has the proofs of evidence.
2. Whether the learned trial judge was right in law to have admitted Exhibits ‘P2’ and ‘P4’ and relied on same during judgment.
3. Whether there was another pending charge against the appellant before another Court of competent jurisdiction for the same offences as under the charge at the lower Court.
4. Whether there were material contradictions and conflicts which occasioned miscarriage of justice in the testimonies of the 1st, 2nd and 3rd prosecution witnesses at the lower Court.
5. Whether the appellant was absent on the day of delivery of judgment at the lower Court.
A close look at the two sets of issues show that they are identical in substance. In fact, the respondent’s issues can beconveniently subsumed under the appellant’s. For this reason of sameness, I will decide the appeal on the issues formulated by the appellant, the undoubted owner of the appeal.
Arguments on the issues:
Issue 1:
Learned counsel for the appellant submitted that the lower Court wrongly tried and convicted the appellant when the amended charge of 22 May, 2013 was not accompanied by proof of evidence as required by Section 251(1)(f) of the Administration of Criminal Justice Law of Lagos State (ACJL). He noted that the provision used “shall” which made it mandatory. He relied on Ogidi v. State (2005) All FWLR (Pt. 251) 202, (2005) 5 NWLR (Pt. 918) 327; Dada v. FRN (2016) 15 NWLR (Pt. 1506) 564. He described the amended charge as incompetent. He reasoned that procedure was an offshoot of the right to fair hearing as guaranteed in Section 36 of the Constitution (as amended). He cited Uwazurike v. Attorney-General, Federation (2008) 10 NWLR (Pt. 1096) 444. He observed that the amended charge was a new charge, which required a fresh plea, as it wiped off the earlier order. He referred to Amanambu v. Okafor (1966) All NLR 205; Federal Republic of Nigeria v. Adewunmi (2007) All FWLR (Pt. 368) 978, (2007) All NWLR (Pt. 368) 978; Rotimi v. Macgregor (1974) IISC 133; JC Ltd v. Ezenwa (1996) 4 NWLR (Pt. 443) 391; Okegbu v. State (1979) All NLR 200, (1979) 11 SC I; R. v. Ogunyomi (1961) All NLR 467; Okosun v. State (1979) 3 – 4 SC 24; Attorney-General, Western Region v. Adisa (1966) NMLR 144. He maintained that the lack of proof of evidence was tied to fair hearing as there was no basis for the lower Court to try the appellant. He cited Macfoy v. UAC (1962) AC 150. He concluded that the trial caused miscarriage of justice to the appellant as it prejudiced his right of fair hearing.
For the respondent, learned counsel contended, per contra, that the amended charge was accompanied by proof of evidence. He enumerated the contents of proof of evidence and its inexhaustible nature. He relied on Nweke v. State (2017) All FWLR (Pt. 899) 323, (2017) LPELR – 42103 (SC). He stated that it was the defence that tendered PW1’s statement. He said that the appellant’s complaint was not that he was not served with the proofs of evidence in the original charge. He persisted that the respondent complied with Section 251(1) (f) of the ACJL. He asserted in the alternative that the complaint was late as the appellant should have applied for the proof of evidence. He cited Nweke v. State.
On points of law, learned appellant’s declared the case of Nweke v. State as inapplicable and it was not late to raise such mandatory legal requirement of law.
Issue 2:
Learned appellant’s counsel submitted that the lower Court wrongly admitted the appellant’s confessional statements (Exhibits P2 and P4) when they were not video recorded or made in the presence of a lawyer as require by Section 9 (3) of the ACJL. He relied on John v. Igbo-Etiti LGA (2013) 7 NWLR (Pt 1352) 1; Eneche v. People of Lagos State (2018) LPELR – 45826 (CA); Zhiya v. People of Lagos State (2016) LPELR – 562 (CA); Fatoki v. State (unreported) appeal No. CA/L/1125/2011 delivered on 11 December, 2015; Matthew v. State (unreported) Akhabue v. State (unreported) both delivered on 11 December, 2015. He stated that the lower Court wrongly relied on Exhibits P2 and P4 in convicting the appellant.
On behalf of the respondent, learned counsel argued that theconfessional statements were inadmissible without video recording or presence of a lawyer. He relied on Kadiri v. People of Lagos State (2019) LPELR – 47714 (CA). He took the view that admission of confessional statement is an issue of evidence which falls within the exclusive legislative competence of the National Assembly and not the House of Assembly of Lagos State. He cited Okondo v. People of Lagos State (2016) All FWLR (Pt. 851) 131; Emmanuel v. FRN (unreported) appeal No. CA/L/1371c/2016. He noted that the lower Court conducted trial-within-trial and found that they complied with Section 29 of the Evidence Act, 2011.
On points of law, learned appellant’s counsel declared the case of Kadiri v. People of Lagos as inapplicable. He relied on Awelle v. People of Lagos State (2016) LPELR – 41395 (CA).
Issue 3:
Learned appellant’s counsel posited that the charge against the appellant was an abuse of Court process because there was another charge against him in the Magistrates’ Court that was not discontinued. He opined that the issue of abuse was jurisdictional. He stated that a Court should prevent abuse of its process.
He relied on Apugo v. FRN (2017) 8 NWLR (Pt. 1568) 416; Carribbean Trading & Fidelity Corporation v. NNPC (1991) 6 NWLR (Pt. 197) 35. He persisted that the charge was an abuse of Court process which robbed the lower Court of its jurisdiction to hear it.
On the part of the respondent, learned counsel argued that there was nothing before the lower Court to show that a charge was pending before a Magistrates’ Court. He claimed that the appellant had the burden to prove that assertion. He referred to Section 131 of the Evidence Act, 2011. He reasoned that the evidence of PW3 on the charge in the Magistrates’ Court, was not a confirmation of it as the Attorney-General of Lagos State, who arraigned the appellant filed no such charge. He urged the Court to take judicial notice of the law that Magistrates’ Court had no jurisdiction to try armed robbery. He cited Section 29 (5) of the Magistrates’ Court Law, Cap. M 1, Vol. 8, Laws of Lagos State, 2015.
Issue 4:
Learned appellant’s counsel contended that the PW2 and PW3 gave contradictory evidence on recovery of gun from the appellant. He added that PW1 made three contradictory statements to the police. He explained that a Court would not act on hearsay and conflicting testimonies. He cited Ifaramoye v. State (2017) All FWLR (Pt. 917) 1551, (2017) 8 NWLR (Pt. 1568) 457; Commissioner of Police v. Amuta (2017) All FWLR (Pt. 879) 760, (2017) 4 NWLR (Pt. 1556) 379.
For the respondent, learned counsel submitted that the lower Court convicted the appellant based on the unchallenged evidence of PW1, the victim who identified him with a gun. He relied on Shurumo v. State (2010) All FWLR (Pt. 551) 1406, (2010) LPELR – 3069 (SC). He claimed in the alternative, that if there were contradictions they were not material to cause miscarriage of justice. He referred to Okanlawon v. State (2015) LPELR- 24838 (SC). He stated that the respondent, based on the unchallenged evidence of PW1, proved the case beyond reasonable doubt. He cited Nwaturuocha v. State (2011) LPELR SC 197/2010; Woolmingtoon v. DPP (1935) AC 485; Miller v. Minister of Pensions (1947) 3 All PR 373; Nasiru v. State (1999) 2 NWLR (Pt. 589) 87; Alabi v. State (1993) 7 NWLR (Pt. 307) 511. He concluded that the evidence of PW3 on the recovery of gun was in line with the law.On points of law, learned appellant’s counsel stated that the suspects mentioned by PW1 in her statement were not the appellant and others mentioned in her evidence in Court. He maintained that a Court would not rely on hearsay and conflicting evidence. He cited C.O.P v. Amuta.
Issue 5
Learned appellant’s counsel argued that the lower Court delivered judgment, convicted and sentenced the appellant in his absence and without allocutus which made the decision a nullity. He cited State v. Lawal (2013) All FWLR (Pt. 679) 1024, (2013) 7 NWLR (Pt. 1354) 565; Audu v State (2016) 1 NWLR (Pt. 1494) 557.
He took the view that the conviction and sentence contravened Section 36 of the Constitution (as amended). He cited Audu v. State.
On the side of the respondent, learned counsel submitted that the appellant was present on the day of the judgment as shown on page 57 of the additional record. He declared the cases of State v. Lawal and Audu v. State as inapplicable.
On points of law, learned appellant’s counsel posited that pages 81-103 of the main record did not show the presence of the appellant on the judgment day.
Resolution of the issues
An indepth scrutiny of the issues amply, discloses that each of them evinces a jurisdictional question. This is because each alleges one defect or the other against the competence of the proceedings which in turn impinges on the jurisdiction of the lower Court to entertain the case against the appellant. Given this common mission exuded by the issues, I will attend to them in their numerical sequence of presentation by the feuding parties. To this end, I will kick start with the consideration of issue 1. The issue though appears seemingly stubborn, is canalised within a narrow compass. It queries the propriety of the lower Court’s conviction of the appellant on an amended charge that was not supported by proof of evidence. It is a subtle invitation to the Court to x-ray the connotation, essence and features of proofs of evidence.
Proofs of evidence denote summaries of the statements of witnesses which the prosecution intend to call at the criminal trial. They are not the same as statements of witnesses an accused would call at the trial. They are to criminal trials what pleadings are to civil actions. Proofs of evidence are not themselves pieces of judicial or legal evidence upon which a Court of law acts on. They serve as notice to an accused person of the nature of the case against him in satisfaction of the command of his inalienable right to fair hearing. The proofs of evidence, inter alia, consist of videlicet: statement of charge against an accused, names, addresses and statements of prosecution witnesses, medical report, records of conviction, if any, of the witnesses, an inventory of exhibits, any relevant statements or document. Errors in them can be rectified. They usually accompany a charge/information and, ipso facto, should disclose prima facie case to sustain the charge or allegation against an accused person, see FRN v. Wabara (2013) 5 NWLR (Pt. 1347) 331; Akwuobi v. State (2017) All FWLR (Pt. 893) 1169, (2017) 2 NWLR (Pt. 1550) 421; Amadi v. Attorney – General, Imo State (2017) All FWLR (Pt. 907) 1652, (2017) 11 NWLR (Pt 1575) 92; Nweke v. State (2017) All FWLR (Pt. 899) 323, (2017) 15 NWLR (Pt. 1587) 120; Idoko v. State (2018) All FWLR (Pt. 957) 764, (2018) 6 NWLR (Pt. 1614) 117; Alex v. Federal Republic of Nigeria (2018) All FWLR (Pt. 970) 869,(2018) 7 NWLR (Pt. 1618) 228; Shema v. FRN (2018) 9 NWLR (Pt. 1624) 337; Madukaegbu v. State (2018) 10 NWLR (Pt. 1626) 26; Massala v. IGP (2018) 11 NWLR (Pt. 1630) 224; Ukiri v. FRN (2018) 12 NWLR (Pt. 1632) 1; Idagu v. State (2018) 15 NWLR (Pt. 1641) 127; Usman v. State (2018) 15 NWLR (Pt. 1642) 320; Olasehinde v. State (2019) 1 NWLR (Pt. 1654) 555; Lawali v. State (2019) 4 NWLR (Pt. 1663) 457; Mathew v. State (2019) 8 NWLR (Pt. 1673) 461.
The appellant erected his grudge on the provision of Section 251(1)(f) of the ACJL. Being the cynosure of the complaint, it is imperative to pluck it out, where it is domiciled in the statute book, ipsissima verba, thus:
(1) Where an information is exhibited in the High Court under the provisions of this law, it shall set out… (f) proof of evidence.
This provision is submissive to easy appreciation. To this end, the law mandates the Court to accord it its ordinary grammatical meaning without any embellishments, see FRN v. Osahon (2006) 5 NWLR (Pt. 973) 361; Nigerian Army v. Brig. Gen. Maude Aminun-Kano (2010) All FWLR (Pt. 523) 1805, (2014) 5 NWLR (Pt. 1188) 429; Agbiti v. Nigerian Navy (2011) 14 NWLR(Pt. 1236) 175; Nyame v. F.R.N. (2010) All FWLR (Pt. 527) 618, (2010) 7 NWLR (Pt. 1193) 344; Amoshima v. State (2011) All FWLR (Pt. 597) 601. (2011) 14 NWLR (Pt. 1268) 530; Federal Republic of Nigeria v. Mohammed (2014) All FWLR (Pt. 730) 1234, (2014) 9 NWLR (Pt. 1413) 551; Martins v. Commissioner of Police (2013) All FWLR (Pt. 666) 446, (2013) 4 NWLR (Pt. 1343) 25; Dahiru v. State; (2018) 14 NWLR (Pt. 1640) 567; Komolafe v. FRN (2018) 15 NWLR (Pt. 1643) 507; Babade v. FRN (2019) 1 NWLR (Pt. 1652) 100; Mamudu v. State (2019) 5 NWLR (Pt. 1664) 128. I will use this literal rule as the yardstick for the interpretation of the provision. In addition, the draftsman of the provision employed the word “shall” which in this context implies compulsion/mandatoriness. See Agbiti v. Nigerian Navy (2011) 4 NWLR (Pt. 1236) 175. I will obey these legal commandments in the interpretation of this provision in order not to insult the law.
Now, the key to the appellant’s grouse is tucked away in the record of appeal, the spinal cord of every appeal. On this premise, I am compelled in due loyalty to the dictate of the law to consult the record. I have perused therecords, the main and additional with the finery of a tooth comb. I am able to locate “proofs of evidence”. They monopolise pages 6 – 40 of the additional record. They contain seven witnesses who the respondent listed as those it intended to field in proof of the case. The list of witnesses is wrapped in page 6 of the additional record. It is followed by copies of their extra-judicial statements which occupy pages 7 – 40 of the additional record. Thus, the connotations, contents, object and hallmarks of proofs of evidence catalogued earlier were complied with. Indisputably, the proofs of evidence followed the original charge/information that was amended by excision of Hope Akatobi as one of the accused persons. In other words, the proofs of evidence were anterior not posterior to the amended charge/information of 23 May, 2013 which has its residence at pages 46 and 47 of the additional record. However, the site/location of the proofs of evidence is of no moment. The bottom line is that they are domiciled in the record, the bedrock of the appeal. After all, in the eyes of the law, an amended process relates back to the original date of the process amended. In this wise, the amended charge takes its root back to the date of the original charge and occupies its position as it has lost relevance in the proceedings. It stems from the foregoing that the sacrosanct provision of Section 251(1)(f) of the ACJL, upon which the appellant pegged his complaint was obeyed by the respondent to the letter. In fact, the presence of the proofs of evidence in the record, the touchstone of the appeal with due reverence exposes the poverty of the learned appellant counsel’s dazzling submission thereon. It is disabled from birth!
The appellant branded the trial as one smacked/smeared with a miscarriage of justice against him. A miscarriage of justice connotes/signifies: A grossly unfair outcome in judicial proceedings as when a defendant is convicted despite lack of evidence on an essential elements of crime”, see Adeyemi v. State (2014) 13 NWLR (Pt. 1423) 132; Itu v. State (2016) All FWLR (Pt. 823) 1983, (2016) 5 NWLR (Pt. 1506) 446; Gazzali v. State (2019) All FWLR (Pt. 976) 1022, (2019) 4 NWLR (Pt. 1661) 98; Abebe v. FRN.
I had found after due consultation with the record, that the amended charge was accompanied by proofs of evidence. In view of that solemn and indefeasible finding which is borne out by the record, the appellant was not smeared/inflicted with any negative incidents of miscarriage of justice. Indeed, in face of the existential proofs of evidence the allegation of miscarriage of justice against the lower Court’s proceedings snowballs into a pseudo accusation, uncharitable and unsustainable. By the same token, the appellant’s complaint of erosion of his right to fair hearing, as enshrined in Section 36(6) of the Constitution (as amended) is rendered idle. The appellant cannot harvest from the beneficent sanctuary of fair hearing when the proofs of evidence kept him notified and abreast of the nature of the charge against him. On this score, all the diatribes which the learned appellant’s counsel rained against the proceeding, with due respect, paled into insignificance. In the end, I have no choice than to resolve issue one against the appellant and in favour of the respondent.
Having dispensed with issue 1, I proceed to settle issue 2. The issue is a double-barreled one. The first limb centres on the admission of the appellant’s confessional statements as Exhibits P2 and P4. It chastises their admissibility by the lower Court in disobedience to the provision of Section 9(3) of the ACJL. A resume of the provision is that a police officer shall ensure that a confessional statement of an accused person be recorded in a video or made in the presence of a legal practitioner of his choice in the absence of video facility. The appellant’s worry is that the Exhibits P2 and P4 were admitted without conformity with the provision.
In the first place, the provision of Section 4 of the Constitution (as amended), the fons et origo of our laws, shares/distributes legislative powers to the bicameral National Assembly and the unicameral House of Assembly of a State, see Fasakin Foods (Nig.) Ltd v. Shosanya (2006) All FWLR (Pt. 320) 1059, (2006) 10 NWLR (Pt. 987) 126; Attorney-General, Lagos State v. Attorney-General, Federation (2004) 18 NWLR (Pt. 904) 1; Eze v. Governor, Abia State (2014) 14 NWLR (Pt. 1426) 192; Governor, Ekiti State v. Olubunmo (2017) All FWLR (Pt. 873) 1592, (2017) 3 NWLR (Pt. 1551) 1. Each legislative body is restricted to matters assigned to it in the provision and in Part 1 of the 2nd Schedule appurtenant to them and any law germinating from one invading legislative territory of the other is unconstitutional, see Attorney-General, Abia State v. Attorney-General, Federation (2002) FWLR (Pt. 101) 1419, (2002) 6 NWLR (Pt. 763) 264; Attorney-General of Abia State v. Attorney-General, Federation (2006) All FWLR (Pt. 338) 604, (2006) 16 NWLR (Pt. 1005) 265; Attorney-General of Lagos State v. Eko Hotels Ltd (2006) All FWLR (Pt. 342) 1398, (2006) 18 NWLR (Pt. 1011) 378; Attorney-General, Ondo State v. Attorney-General, Federation (2002) FWLR (Pt. 111) 1972, (2002) 9 NWLR (Pt. 772) 222; Min. for Justice & Attorney-General, Federation v. Attorney-General, Lagos State (2013) All FWLR (Pt. 704) 1, (2013) 16 NWLR (Pt. 1380) 249; Mohammed v. FRN (2018) 13 NWLR (Pt. 1636) 229; Benjamin v. Kalio (2018) All FWLR (Pt. 920) 1, (2018) 15 NWLR (Pt. 1641) 38.
In the Exclusive Legislative List in the 2nd Schedule to the Constitution (as amended), evidence is listed as item 23 thereof. Matters in the Exclusive Legislative List are exclusively reserved for the National Assembly to make laws relating to them. It is its prerogative right in our constitutional democracy.
It admits of no argument, that admissibility of documents or evidence is regulated by the provision of the Evidence Act, 2011 – an Act of the National Assembly. The National Assembly, on the footing of the provisions displayed above enjoys the monopoly of promulgating statutes touching on evidence. In view of this olympian legislative status, the provision of Section 9(3) of the ACJL, a law enacted by the House of Assembly of Lagos State, cannot govern the admissibility of evidence in the criminal proceedings in the lower Court. See Benjamin v. Kalio. In other words, the lower Court did not fracture the adjectival law when it admitted the appellant’s extra-judicial confessional statement without reference to the provision of Section 9(3) supra. This inelastic position of the law with due reverence, punctures the learned appellant counsel’s dazzling submission on the point. It is lame.
It flows from these ex-cathedra authorities, that the lower Court did not fracture the adjectival law when it admitted the appellant extra-judicial confessional statement.
That is not all. In Ajiboye v. F.R.N (2019) All FWLR (Pt. 987) 848, (2018) 13 NWLR (Pt. 1637) 430 at 452 and 453, Sanusi JSC, speaking for the apex Court insightfully and incisively, proclaimed:
“On the alleged absence of his counsel when it was recorded, I think that reason is not cogent as it is not incumbent upon the prosecution to record an accused statement only in the presence of his defence counsel. The important and essential thing is that words of caution must be administered to the accused person to his understanding and to endorse same before he decides to make the statement.”
Another limb of the issue quarrels with the lower Court’s reliance on the Exhibits P2 and P4 in convicting the appellant. I had just demonstrated that the lower Court was not in contempt of the procedural law when it admitted Exhibits P2 and P4 after a voir dire proceedings. To do justice to this limb, it is germane to scoop up/extract out relevant positions of those exhibits. In Exhibit P2, the appellant partly volunteered:
“Sometimes two weeks ago, I came to Lagos to visit my brother Elijah and I met one boy, I don’t know his real name but I know him asOkrigbor and he told me that there is something he will like to introduce to me and he later told me that I will go and collect money from one madam but when we got there he changed his mind that we should kidnap the woman. We kidnap the woman we were five that went for the kidnap but we are six that were involved. Our name are Bright, Okrigbor, Okpowa, John, Hope and myself, Stanley. When I kidnapped her we took her to one bush, I do not know the place because I am a stranger in Lagos. We used two guns for the operation. It was Okrigbor that brought the guns. It was local made pistol, the guns are with Okrigbor, the other boys ran away with it. I have never robbed.”
In Exhibit P4, the appellant professed in part:
“I join the kidnapping gang this year 2012 in Lagos State through Mr. Kpokrikpo at Gberigbe in Ikorodu Lagos. The names of our kidnapping syndicate are: myself, Stanley Ugoala, Mr. John, Mr. Obi, Mr. Hope, Kpokrikpo and Mr. Elijah also known as bright. I remember that sometimes ago, Mr. Kpokrikpo called to informed me that the gang is going to collect money from Mrs. Mercy Olufowoise a poultry operator in a village at IkoroduLagos. The gang went to the poultry farm and kidnapped Mrs. Mercy Olufowoise on gun point. I was not armed but two of my colleagues namely; Kpokrikpo and Elijah were armed with shot guns. I and Elijah were armed with shot guns. I and the rest members of the gang kidnapped the woman, Mrs. Mercy and took her to unknown destination with her Prado Jeep. The sum of N150,000,000.00 (one hundred and fifty million Naira) was demanded from her husband as ransom of which the sum of N60,000,000.00 (Sixty million Naira) was offered. The whole syndicate were rounded up by the police as we were trying to collect the money. I decided to join this kidnapping syndicate as a result of my inability to pay school fees. The woman, Mrs. Mercy was held inside the bush for only one night. All the allegation on the woman’s petition are true.”
Nota bene, the law gives the prosecution three avenues/means to prove ingredients of an offence. They are through: a confessional statement or circumstantial evidence; or evidence of eye witnesses, see Igri v. State (2012) All FWLR (Pt. 653) 1826, (2012) 16 NWLR (Pt. 1327) 522; Oguno v. State (2013) All FWLR (Pt. 690) 1291,(2013) 15 (Pt. 1376) 1; Ibrahim v. State (2014) All FWLR (Pt. 721) 1410, (2014) 3 NWLR (Pt. 1394) 305; Ogedengbe v. State (2014) All FWLR (Pt. 752) 1724, (2014) 12 NWLR (Pt. 1421) 338; Umaru v. State (2016) All FWLR (Pt. 853) 1645, (2016) 13 NWLR (Pt. 1425) 497; Itu v. State (2016) 5 NWLR (Pt. 1505)443; Ude v. State (2016) All FWLR (Pt. 853) 1785, (2016) 14 NWLR (Pt. 1531) 122; Okashetu v. State (2016) All FWLR (Pt. 861) 1262, (2016) 15 NWLR (Pt. 1534) 126; Igbikis v. State (2017) All FWLR (Pt. 883) 1405, (2017)11 NWLR (Pt. 1575) 126; State v. Ibrahim (2019) All FWLR (Pt. 1007) 704, (2019) 8 NWLR (Pt. 1674) 294; Itodo v. State (2020) 1 NWLR (Pt. 1704) 1; Lorapuu v. State (2020) 1 NWLR (Pt. 1706) 391.
I have situated the two exhibits; P(2) and P(4). In the first place, when those pre-trial statements, Exhibits P(2) and P(4) were admitted in evidence even though the appellant was their owner, they deserted the defence and metamorphosed into the respondentâ™s case, see Egboghonome v. State (1993) 7 NWLR (Pt. 306) 385; Musa v. State (2013) All FWLR (Pt. 692) 1688, (2013) 9 NWLR (Pt. 1359) 214; Ikumonihan v. State (2018) 14 NWLR (Pt. 1640) 456;Ayinde v. State (2018) 17 NWLR (Pt. 1647) (Pt. 1647) 140; Ifedayo v. State (2019) 3 NWLR (Pt. 1659) 265; Mohammed v. State (2019) All FWLR (Pt. 1017) 521, (2019) 6 NWLR (Pt. 1668) 203; State v. Ibrahim; State v. Buhari (2019) 10 NWLR (Pt. 1681) 583; State v. Shonto (2019) 12 NWLR (Pt. 1686) 255; Edun v. FRN. It flows from the evidential transfiguration/migration, that their contents became part and parcel of the respondent’s case. Remarkably, they amply disclose the appellant’s undiluted admission of the offences preferred against him.
According to Section 28 of the Evidence Act, 2011.
A confession is an admission made at anytime by a person charged with a crime stating or suggesting the inference that he committed that crime.
Once a confession is relevant, it is admissible against an accused who made it save it is excluded in the manner stipulated by the provision of Section 29(2) of the Evidence Act, 2011. Unarguably, it is within the province of the law for a Court to solely base conviction on free, cogent and positive confession. See Sule v. State (2009) All FWLR (Pt. 481) 809, (2009) 17 NWLR (Pt. 1169) 33; Omoju v. FRN (2008) 9 NWLR(Pt. 1055) 381; Shalla v. State (2007) 18 NWLR (Pt. 1168) 240; Dibia v. State (2017) 12 NWLR (Pt. 1579) 196; Egharevba v. State (2016) All FWLR (Pt. 829) 1071, (2016) 8 NWLR (Pt. 1515) 433; Okoh v. State (2016) 10 NWLR (Pt. 1521) 455; Lawal v. State (2016) 14 NWLR (Pt. 1531) 67; Akinrinlola v. State (2016) 16 NWLR (Pt. 1537) 73; Akwuobi v. State (2017) 2 NWLR (Pt. 1550) 421; Kolo v. Commissioner of Police (2017) All FWLR (Pt. 886) 2028, (2017) 9 NWLR (Pt. 1569) 118; Federal Republic of Nigeria v. Barminas (2017) All FWLR (Pt. 882) 1256, (2017) 15 NWLR (Pt. 1588) 177; John v. State (2017) All FWLR (Pt. 901) 620, (2017) 16 NWLR (Pt. 1591) 304; Agugua v. State (2017) 10 NWLR (Pt. 1573) 254; Ajiboye v. FRN (2018) 13 NWLR (Pt. 1637) 430; Umar v. FRN (2019) 3 NWLR (Pt. 1660) 549; Lorapuu v. State.
Indeed, the kingly position of confession in criminal jurisprudence cannot be over-emphasised. Under our procedural law, confession has been classified as the best and strongest evidence, stronger than that of an eye-witness. See Smart v. State (2016) All FWLR (Pt. 826) 548, (2016) 9 NWLR (Pt. 1518) 447; Asuquo v. State (2016) 14 NWLR (Pt. 532) 309; Dibia v. State (2017) 12NWLR (Pt. 1579) 196; FRN v. Barminas (2017) 15 NWLR (Pt. 1588) 177; Akpa v. State (2008) 14 NWLR (Pt. 1106) 72. By a confession, an accused surrenders himself to the law and becomes his own accuser, see Adeleke v. State (2013) 16 NWLR (Pt. 1381) 556. The appellant’s confessional statements, Exhibits P(2) and P(4), drown his right to presumption of innocence, which is entrenched in Section 36(5) of the 1999 Constitution (as amended), as well as make him the undoubted owner of the requisite mens rea and actus reus in relation to the offence of conspiracy preferred against him. Their contents are a classic evidence of pure admission.
The two Exhibits; P2 and P4 clearly revealed that the offences preferred against the appellant, were midwifed and hatched by him with his confederates some of whom are fugitive from justice. Those indelible documentary confessions constitute serious coup de grace to the chances of the appellant’s appeal.
In the light of this expansive juridical survey, done in due allegiance to the law, the lower Court did not defile the law when it admitted and acted on the appellant’s confessional statements, ExhibitsP2 and P4, in the trial and conviction of the appellant. I therefore with due respect, dishonour the learned appellant’s counsel’s salivating invitation to crucify the decision of the lower Court on the undeserved shrine of wrongful admission and reliance on the confessional statements, Exhibits P2 and P4, for want of legal justification. I will not hesitate to resolve issue 2 against the appellant and in favour of the respondent.
That brings me to issue 3. The meat of the issue which falls within a lean scope, is plain. It queries the jurisdiction of the lower Court to entertain the case which parented the appeal, when it was an abuse of Court process. In a bid to castrate the issue, the respondent invented the defence of absence of pending charge in the Magistrates’ Court in the lower Court.
In due fidelity to the desire of the law, I have revisited the records, the keystone of the appeal. I have given a clinical examination to main and additional records. Incidentally, I am unable to find even with prying eagle-eye of a Court, where a pending charge in the Magistrates’ Court resides in either of them. It is my view that aconcrete evidence of such a pending charge should be a charge sheet showing; the name of the Court, the registration number of the case, the configuration of the parties, the offences charged and the signatures of the officer who drafted it. My view point is staked on the fact that the appellant anchored his charge of abuse of Court process on multiplicity of pending charges. In the glaring absence of a charge sheet housing the chronicled contents, the evidence of PW3 on the arraignment at the Magistrates’ Court sounds as an echo in ipse dixit. Such a bare/barren assertion is impotent to persuade this Court to infer that a charge was pending in the Magistrates’ Court to stimulate/compel this Court to expel the one upon which the appellant was tried on.
It is a settled elementary law beyond any peradventure of doubt, that the Court and the parties are bound by the record. Neither of them can factor into a record what is not there nor subtract from its content. An appellate Court must read the record in its exact content. See Udo v. State (2006) All FWLR (Pt. 337) 456, (2006) 15 NWLR (Pt. 1001) 179; Bassey v. State (2012) All FWLR (Pt. 633)1816, (2012) 12 NWLR (Pt. 1314) 209; Osung v. State (2012) All FWLR (Pt. 650) 1226, (2012) 18 NWLR (Pt. 1332) 256; Mohammed v. State (2015) All FWLR (Pt. 793) 1926, (2015) 13 NWLR (Pt. 1476) 276; Offor v. State (2012) 18 NWLR (Pt. 1333) 421; State v. John (2013) All FWLR (Pt. 696) 516, (2013) 12 NWLR (Pt. 1368) 337. It will be tantamount to a flagrant transgression of this inflexible position of the law for this Court to hold that a charge was pending in the Magistrates’ Court when no charge sheet is located in the record. For an abuse of Court process to thrive in the firmament of duplicity of cases, there must co-exist two actions which a Court will use their dates of commencement as the major barometer to measure/gauge their chronological judicial ages to determine the one that is later-in-time and liable to vacation. The conspicuous absence of a charge sheet in the record drains this Court of the jurisdiction to make such comparison which is a desideratum in the, domain of abuse of Court process. The appellant’s accusation of abuse of Court process against the case which mothered the appeal is without evidence of a pending charge sheet, devoidof any legal parentage to perch and command any potency. The net effect is obvious. It will be hostile to the law to vacate the case as an abuse of Court process. It is not guilty of the allegation. In sum, I resolve the issue 3 against the appellant and in favour of the respondent.
I proceed to handle the penultimate issue 4. The issue parades two facets/prongs. The first arm orbits around the appellant’s allegation of contradiction in the respondent’s evidence. It was contended that the respondent’s evidence were infested/tainted with contradictions which rendered them unusable.
By way of prefatory remarks, etymologically, contradiction, like most legal terminologies, traces its paternity to the Latin word, “contradictum”, an amalgam of “contra” and “dictum”; which denotes “to say the opposite”. Two pieces of evidence of a witness or witnesses are contradictory when they are incompatible and one affirms the opposite of the other. Indisputably, the law frowns upon witness contradicting themselves by giving divergent views on a point. However, for contradiction to be fatal to any case,it must be so material to the extent that it casts serious doubts on the entire case presented by a party against whom it is raised. Put the other way round, collateral contradiction will not constitute dents on a party’s case. See Ebeinwe v. State (2011) All FWLR (Pt. 566) 413, (2011) 7 NWLR (Pt. 1246) 402; Attah v. State (2010) All FWLR (Pt. 540) 1224, (2010) 10 NWLR (Pt. 1201) 190; Olayinka v. State(2007) All FWLR (Pt. 373) 163, (2007) 9 NWLR (Pt. 1040) 561; Akpa v. State (2008) All FWLR (Pt. 420) 644, (2008) 14 NWLR (Pt. 1106) 72; Eke v. State (2011) All FWLR (Pt. 566) 430, (2011) 3 NWLR (Pt. 1235)589;Babarinde v. State (2011) 3 NWLR (Pt. 1235) 568; Olatinwo v. State (2013) All FWLR (Pt. 685) 312, (2013) 8 NWLR (Pt. 1355) 126; Mohammed v. State (2014) All FWLR (Pt. 747) 663, (2014) 12 NWLR (Pt. 1421) 387; Emeka v. State (2014) All FWLR (Pt. 751) 1480, (2014) 13 NWLR (Pt. 1425) 614; Bello v. C.O.P.(2018)2 NWLR (Pt. 1603) 267; Idi v. State (2018) 4 NWLR (Pt. 1610) 359; Adegbite v. State (2018) All FWLR (Pt. 951) 1855, (2018) 5 NWLR (Pt. 1612) 183; Ogu v. C.O.P; Anyasodor v. State (2018) 8 NWLR (Pt. 1620) 107; Idagu v. State (2018) 15 NWLR (Pt. 1641) 127.Amazingly, the learned appellant’s counsel identifiedonly one piece of evidence of the respondent’s witnesses, PW3 and PW2; that was plagued by contradiction, id est, the possession and non-possession of gun by the appellant respectively.
I have in total allegiance to the dictate of the law, situated this highlighted area in the respondent’s evidence with the harmful incidents of contradiction x-rayed above. The raison d’etre for the juxtaposition is plain. It is to ascertain if the piece of evidence is soiled by contradictions. Let me place on record, pronto, that the evidence offered by PW2 and PW3, on the gun were not events that occurred concurrently. The PW2 gave account of events, which precipitate the arrest of the appellant, on 28 February, 2012, anterior to the release of the victim, PW1, when the appellant was not armed with a gun. The evidence of PW3, which was in March 2012, posterior to the release of the victim was on the locus criminis where he found a gun used by the culprits. So, the evidence of each of them on the point of gun was tailored alongside their different investigative activities.
In any event, whether a gun was recovered or not by either of the Investigating Police Officers (IPOs) at different stages is of no moment. The bottom-line is that gun was recovered. It matters not by who, the PW2 or PW3, which rendered the two pieces of evidence as discrepancy.
It flows to my mind that these pockets of infinitesimal differences in evidence do not in the least qualify as material contradictions. They are rather discrepancies that are impotent to ruin the pungent evidence of the respondent professed by PW2 and PW3. The law embraces discrepancies in evidence of witnesses in that “minor variations in their testimonies merely imbue their evidence with imprimatur of truth”. See Eke v. State at 665, per Fabiyi JSC, Muh’d v. State (2018) All FWLR (Pt. 936) 1428, (2018) 5 NWLR (Pt. 1613) 405; Isah v. State (2018) 8 NWLR (Pt. 1621) 346. It follows that the minute differences in the narration of evidence attest to the veracity of the witnesses on the point.
At any rate, the law gives witnesses the liberty to recount events with slight differences not in a robotic manner. It means that witnesses are not expected, being human andnot automatic machines, to proffer parol evidence with regimented accuracy. Human memories fade with the passage of time even in hours, vis-a-vis events. Where witnesses give evidence on the same matter to the exact minutest details, their testimonies will be treated with circumspection as they will be guilty of evidential tutorage. See Egwumi v. State (2013) 13 NWLR (Pt. 1372) 525; Galadima v. State (2017) All FWLR (Pt. 899) 302, (2017) 14 NWLR (Pt. 1585) 187. On this premise, I am not armed with any legal justification to ostracise those pieces of evidence from the appeal on account of phantom or non-existent contradictions.
In the other arm, the appellant nursed the grudge that the lower Court relied on inadmissible hearsay evidence. In our adjectival law, a witness is expected to testify on oath or affirmation on what he knows personally. Where a witness gives evidence on what another person told him about events, then it is not direct evidence which has acquired the nickname, hearsay or second hand evidence. In the view of the law, hearsay evidence can only be used to inform a Court about what a witness heard another say and not establish the truthof an event. See Sections 37, 38 and 126 of the Evidence Act, 2011; Kasa v. State (1994) 5 NWLR (Pt. 344) 269; F.R.N. v. Usman (2012) All FWLR (Pt. 632) 1639, (2012) 8 NWLR (Pt. 1301) 141; Theophilus v. State (1996) 1 NWLR (Pt. 423) 139; Opara v. Attorney-General, Federation (2017) 9 NWLR (Pt. 1569) 61; State v. Masiga (2018) 8 NWLR (Pt. 1622) 383; Simeon v. State (2018) 13 NWLR (Pt. 1635) 128; Saraki v. FRN (2018) 16 NWLR (Pt. 1646) 405; Idi v. State (2019) 15 NWLR (Pt. 1696) 448.
It cannot be gainsaid that the lower Court placed high premium on the viva voce evidence of PW1 regarding the proof of the heinous crimes: kidnapping and armed robbery. The act of reliance on them is, deeply, rooted in the corpus of our criminal jurisprudence. Indisputably, the PW1 was the victim of those crimes. The law now treats and ascribes to the evidence of a victim as that of an eye witness. See Giki v. State (2018) 6 NWLR (Pt. 1615) 237; Chidozie v. C.O.P. (2018) All FWLR (Pt. 962) 1579, (2018) 6 NWLR (Pt. 1615) 373; Ogu v. Commissioner of Police (2018) All FWLR (Pt. 928) 31, (2018) 8 NWLR (Pt. 1620) 134. In the mind of the law, an eye witness connotes a person who cantestify as to what he has seen from personal observation. See Ude v. State (2016) 14 NWLR (Pt. 1531) 122. The evidence of an eye-witness as already noted, qualifies as one of the three ways to prove commission of a crime. An eye-witness testifies to what he has seen or observed personally from any of his senses. It ranks second in the methodical ladder of proof of crimes. It concedes the first rung to a confession. Thus, the evidence of PW1, the victim a classic exemplification of eye-witness evidence is totally, divorced from the province of hearsay evidence. The classic evidence fixed the appellant as one of the participescriminis in all the loci in quo of the dastard crimes.
Again, the appellant stigmatised the evidence of PW2 and PW3 as inadmissible hearsay. It is decipherable from the record, the fulcrum of the appeal, that PW2, Cpt. UlokoObiako, and PW3, Kpoughui Francis, were the Investigating Police Officers (IPOs) who investigated the case prior to the arraignment of the appellant in the lower Court. In Anyasodor v. State (2018) 8 NWLR (Pt. 1620) 107 at 125 Sanusi JSC, incisively, declared:
“On the appellant’s counsel’ssubmission that the testimony of PW3 was hearsay, I am also at one with the lower Court’s conclusion that such testimony as given by the PW3 was not and cannot be described as hearsay evidence. To my mind, all that the PW3 (IPO) did was to give evidence on what he actually saw or had witnessed or discovered in the course of his work as an investigator. His testimony on what the appellant told him was positive and direct which was narrated to him by the appellant and other witnesses he came into contract (sic) within the course of his investigation of the case. Evidence of an IPO is never to be tagged as hearsay. This Court in a plethora of its decided authorities had adjudged such evidence as direct and positive evidence and therefore not hearsay evidence. See Arogundade v. State (2009) All FWLR (Pt. 469) 409, (2009) 6 NWLR (Pt. 1136) 165.”
See also Olaoye v. State (2018) All FWLR (Pt. 961) 1532, (2018) 8 NWLR (Pt. 1621) 281. It stems from this magisterial pronouncement, that the law has totally severed the evidence of an Investigating Police Officer (IPO) of a case from hearsay and coronated it with the toga of admissible evidence.
These ex cathedra authorities with due respect, wholly castrate the appellant counsel’s elegant contention on the point. The contention is disabled in their presence. I therefore refuse the appellant’s request to expunge the evidence of PW2 and PW3 on the ground of hearsay. Contrariwise, I welcome the evidence as usable evidence in the appeal.
This legal anatomy conducted on the concepts of contradictions and hearsay evidence is an eloquent testimony that the lower Court did not run foul of the law in its utilisation of the evidence of PW1 – PW3. It will smell of judicial sacrilege to tinker with a judicial exercise that is not injudicious or hostile to the law. In the aggregate, I resolve issue 4 against the appellant and in favour of the respondent.
It remains to thrash out issue 5. The kernel of the issue is slim. The marrow of the appellant’s chief grievance, indeed his trump card on the lean issue is that the appellant was absent on the date of judgment that convicted him. It is trite law, that an accused person cannot be tried and/or convicted in his absence. See State v. Lawal (2013) All FWLR (Pt. 679) 1024, (2013) 7 NWLR (Pt. 1354)565; Audu v. State (2016) 1 NWLR (Pt. 1494) 557. I have made another excursion into the records, the bible of the appeal. In the twilight of the additional record precisely at page 57 thereof, the lower Court’s minutes amply showcase that the appellant was present on 19 April, 2018 when the judgment, which convicted and sentenced him was delivered. As already noted, it is rudimentary law that a Court of law of any cadre is bound by the record. In this wise, it will amount to subjecting the law to ridicule and mockery to ignore the content of the record. That minute manifested at page 57 of the additional record, reveals that the appellant was not convicted and sentenced in absentia. It clearly with due deference, demolished the learned appellant’s alluring argument on the issue and rendered it a footnote. I am not armed with the law to enable me cast my lot for the appellant. In all, I resolve the issue 5 against the appellant and in favour of the respondent.
On the whole, having resolved the five issues against the appellant, the destiny of the appeal is obvious. It is devoid of any ray of merit and liable to the waiting penalty ofdismissal. Consequently, I dismiss the appeal. I affirm the decision of the lower Court delivered on 19 April, 2018.
TIJJANI ABUBAKAR, J.C.A.: My Lord and learned brother, Ogunsanya JCA granted me the honour of reading in draft the comprehensive illuminating judgment prepared and rendered in this appeal. My learned brother completely covered the field after firmly holding on to the issues in controversy in this appeal. I completely agree that appellant’s appeal is devoid of a jot of merit and therefore deserves to be dismissed. I endorse the entire reasoning and conclusion and adopt the Judgment as my own. I also dismiss the appeal and affirm the judgment of the lower Court delivered on 19 April, 2018.
JAMILU YAMMAMA TUKUR, J.C.A.: I read in advance a draft copy of the judgment just delivered by my learned brother, Obande Festus Ogbuinya JCA and I adopt the judgment as mine with nothing further to add.
Appearances:
O. E. Ogungbeje, Esq.For Appellant(s)
Abisola Adeyinka, Esq. D, LSMOJFor Respondent(s)