VICTOR AKPOYIBO v. THE STATE
(2014)LCN/6813(CA)
In The Court of Appeal of Nigeria
On Friday, the 31st day of January, 2014
CA/AK/94C/2011
RATIO
WHETHER A POLICE STATION’S CRIME BOOK IS A PUBLIC DOCUMENT
Now as is common ground to both sides, a Police Station’s Crime diary is a book or a bank containing all entries made in respect of complaints made at the Police Station by other members of the public. Legally it is a public document pursuant to the provisions of section 102 of the Evidence Act, 2011. It seems to me and I so hold that for all such document or the bulk of it to be produced in court for the use by or benefit of any body, there shall be a specific order to that effect by the court. Per CORDELIA IFEOMA JOMBO-OFO, J.C.A.
EFFECT OF NON-COMPLIANCE WITH PROCEDURE AT ANY STAGE OF ADJUDICATION
It is trite that a non-compliance with or a defect or an irregularity in procedure at any stage of adjudication from preferment of charges, arraignment, trial, conviction to the sentencing of an accused person is fatal to adjudication. It is indeed tantamount to a denial of justice to an accused. Per CORDELIA IFEOMA JOMBO-OFO, J.C.A.
JUSTICES
SOTONYE DENTON WEST Justice of The Court of Appeal of Nigeria
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria
Between
VICTOR AKPOYIBO Appellant(s)
AND
THE STATE Respondent(s)
CORDELIA IFEOMA JOMBO-OFO, J.C.A.:(Delivering the Leading Judgment): This is an appeal against the judgment of Hon. Justice W. O. Akanbi sitting at Ikire Judicial Division of Osun State High Court, delivered on Thursday, the 22nd day of July, 2010.
The accused, herein the appellant stood charged at the High Court, on a two-count charge of Armed Robbery contrary to section 1(1) and 2(a) of the Robbery and Firearms (Special Provisions) Act, Cap. 398, Vol. XXII, Laws of the Federation of Nigeria, 1990; and Attempted Armed Robbery, contrary to section 2(1) and (2a) of the Robbery and Firearms (Special Provisions) Act, Cap. 398, Vol. XXII, Laws of the Federation of Nigeria, 1990.
It was the case of the prosecution (herein the respondent) that the appellant on 25th November, 2001 at about 8.00a.m. at Apomu Junction on Ibadan-Ife express road, while armed with an offensive weapon, to wit: a Kalashinicol rifle gun, robbed one Rasheed Folorunsho of the sum of N4,500.00k.
The appellant on his part denied being at the scene of the robbery at the time. He claimed that he was in his house from around 7.45am till he resumed work at the police station which was opposite his house around 8.40am on that day of the incident.
In an attempt to prove their respective cases, the respondent called two witnesses, while the appellant alone testified in his defence. In a considered judgment delivered 22nd July, 2010, the appellant was found guilty of the offence of armed robbery and was sentenced to death.
Being dissatisfied with his conviction and sentence to death, the appellant has appealed vide his Notice of Appeal dated and filed 28th July, 2010 containing 8 (eight) grounds of appeal from which counsel on his behalf has distilled the following two issues for determination of the appeal. The issues read thus:
1. Whether the appellant was denied fair hearing as enshrined in section 36(6) 1(b) of the Constitution of the Federal Republic of Nigeria, 1999. (Grounds 2, 3 and 5).
2. Whether the learned trial Judge was right to have held that the offence of armed robbery was proved against the appellant beyond reasonable doubts. (Grounds 1, 4, 5, 7 and 8).
The respondent adopted wholly the two issues raised for determination and thus the appeal shall be determined based on the foregoing two issues.
ISSUE 1 (ONE)
In arguing issue 1 (one) which is whether the appellant was denied fair hearing as enshrined in section 36(6)(b) of the Constitution of the Federal Republic of Nigeria, 1999 (hereinafter referred to simply as the Constitution), the learned, counsel for the appellant relying on the said provision of the Constitution and the decision of this court in Uwazurike v. A.G. Federation (2008) 10 NWLR (Pt. 1096) C.A., submitted that the findings and judgment of the learned trial Judge are in flagrant violation of them.
Counsel went on to contend that the appellant denied being present at the scene at the time; also that the prosecution’s “star witness”/PW1 had earlier in his original complaint at Apomu Police station, recorded in the crime diary that the alleged crime was committed between the hours of 06hrs and 9.40hrs. See page 76, lines 1-19 of the record. Counsel submitted that the prosecution failed to produce the crime diary in issue in spite of the order granted by the trial court to compel the said prosecution to produce it. He contended that the production of that crime diary would have afforded the appellant the adequate facilities guaranteed him under section 36(6)(b) but which the prosecution denied him for no just cause. According to the learned counsel, the non-production of the said crime diaries had denied the appellant “adequate facilities” for his defence, and a fortiori, occasioned a denial of fair hearing to the said appellant. The learned counsel referred to The Longman Dictionary of Contemporary English, edited by Paul Procter 1978, at page 390 which defined “facilities” as means to do things; that which can be used.
Counsel argued that since the prosecutions were in possession of the said crime diaries and which they failed to produce that the learned trial Judge ought to have held that if such crime diaries had been produced their contents would have been unfavourable to the prosecution. Counsel relied on section 149(d) of the Evidence Act Cap. 112, LFN, 1990, as well as the cases of Ukpe v. State (2001) 18 WRN 84; and Emenegor (2010) All FWLR (Pt. 511) C. A. 884, 931, paras. F-G, 931 – 932, H-A.
Counsel not yet done on this aspect of non-production of the crime diary submitted that where the consideration of documentary evidence to resolve a relevant issue (the exact time the alleged armed robbery took place) in a case is principally involved, the demeanour of witnesses can hardly play any part. See Olujinle v. Adeagbo (1988) 2 NWLR (Pt. 75) 238; and Ukpe v. The State (supra) page 113, lines 25-30 referred.
He argued further that the learned trial Judge was wrong to have made use of Exhibits H, H1, H2 and H3 which constitute “some documents” to the prosecution instead of insisting on strict compliance with the courts orders for production of crime diaries made 23rd February, 2009. Thus the learned trial Judge wrongly used his judicial authority to deny the appellant fair hearing because his findings based on such irrelevant documents were based on speculation. Counsel referred us to Isiaku Mohammed v. Kano Native Authority (1908) 1 All NLR 426 where it was stated that:
“The true test of fair hearing is the impression of a reasonable person who present at the trial whether from his observation, justice has been done in the case.”
Counsel also proffered that the learned trial Judge misdirected himself when he held that the defence counsel did not challenge nor make an issue of the time of the offence as contained in Exhibits H, H1, H2 and H3 at the point of tendering them.
Counsel went on to suggest that the learned trial Judge stood on a shaky and doubtful ground to convict the appellant and thereby operated below the expected standard. To buttress this point he referred to Gambo Garba v. The State (2011) All FWLR (Pt. 584) C.A. 148 at 167-168, paras. E-A where Mbaba, J.C.A. said inter alia:
“…. I believe that it was in pursuit of that noble objective that the rules of criminal justice and evidential burden on the prosecution were required to be strict, loaded and demanding, which clearly shows the stance of the law, that in its bid to ensure that one innocent person if not punished unjustly, the law would not mind if ten criminals exploited the existing loopholes and escaped justice. See the case of Onafowokan v. The State, per Aniagolu, J.S.C. at page ….244, who said:
“…… Even though the effect would be that none of the two accused…. will be found guilty in respect of the death of that man, the laws of all civilized nations maintain that it is better that ten guilty persons should go scot-free than one innocent person should be found guilty.”
Such is the burden of a Judge.”
Against this backdrop the learned counsel for the appellant concluded that the learned trial Judge was in flagrant violation of the above-quoted immortal and notable pronouncements of both this Honourable court and the Supreme court of Nigeria; consequent upon which he urged on us to strike down the judgment of the trial court and allow this appeal by resolving issue 1 in favour of the appellant.
In reaction to issue one, the learned counsel for the respondent noted that the basic grouse of the appellant is that he was not furnished with the crime diaries as requested by them, the production of which according to them would have helped have helped to clarify contradictions (alleged) in the case of the prosecution, as to the time of the robbery etc.
Counsel for the respondent conceded the constitutional right of an accused person to “adequate time and facilities” for the preparation of the defence. In trying to figure out whether that right was infringed or not he relied on Eke v. Ogbonna (2006) 18 NWLR (Pt. 1012) 506 at 532-533 paras. H-D where the Supreme Court, per NIKI TOBI, JSC had this to say on the principles of fair hearing:
“I have said it in the past and I will say it here again that the provision of fair hearing in the Constitution and as adumbrated by the courts in the cases is for both parties in the litigation….. And so the Judge in the application of the principles of fair hearing must ensure that the pendulum tilts in favour of the party really aggrieved by the court’s conduct of violating the principles. The duty of a court is to create the environment for fair hearing in an egalitarian manner for the benefit of the parties. Once the court creates the environment, its duty stops and the parties are at liberty to take advantage of the environment created by the court.”
Learned counsel went on to enumerate in this case, that after series of adjournments at the instance of the appellant for him to open his defence and in order for him to lay hand on some documents to prepare his defence, he appellant later opted to make a no case submission. With the failure of the no case submission appellant came up with an application which in part requested for the production of crime dairies the subject matter of this issue. The learned trial Judge granted the prayers sought as it appears at page 69 of the record. Counsel labored on that it complied with the said order of the trial judge requesting the prosecution to produce crime diaries “relating to the charge” before the trial court and concerning this case. To this end the prosecution/respondent produced Exhibits H, H1, H2 and H3 which when shown to the said accused/appellant testifying as the DW1, he said:
“These are not the crime diaries that were in the file which I saw in 15/2/2002 on the way to the Magistrate Court which extract does not contain serial number neither time in the body of the extract.”
Counsel for the respondent went on again to highlight the contention of the appellant which includes that the PW1’s original complaint in the crime diary at Apomu Police Station which he the appellant said he saw was to the effect that PW1 was robbed between the hours of 06.00hrs and 09.40hrs. That the failure to produce the crime diary prevented the trial court from being able to resolve the conflicts in the evidence of the prosecution (PW1) as to the time the alleged robbery took place.
Learned counsel submitted that the above-stated contention of the appellant is misconceived and untrue. He urged the court to hold that the respondent fully complied with the court’s order when they produced in court the certified true copy of the entries in the crime diary. That Exhibits H, H1, H2 and H3 being public documents by the provisions of section 102 of the Evidence Act, 2011 were duly admitted in evidence and pursuant to the provisions of sections 105 and 146 of the Evidence Act, the contents shall be presumed to be true by the court unless disproved.
Counsel contended that there is no conflict as to the time the armed robbery took place. Relying on the case of Ogoala v. State (2009) 7 ACLR 357 at 388, he submitted that in criminal cases, except where an accused person confessed and admitted the charge the defence and prosecution are not expected to state identical facts and it is only when there is a material conflict or contradiction in the case of the prosecution alone that such contradiction may result in acquittal.
Submits that section 149(d) (now section 167(d) of Evidence Act, 2011 is not apposite in the instant case. That before the section can be invoked it must be shown that:
a. Such evidence existed.
b. The evidence in question could be produced.
c. The evidence in question was not produced.
d. The evidence in question was with held by the party who could have produced it.
Counsel also relied on Onwujuba v. Obienu (1991) 4 NWLR (Pt. 183) 16; and NSC (Nig.) Ltd v. INNIS-PALMER (1992) 1 NWLR (Pt. 218) 422, to say that section 149(d) supra does not cover imagined or concocted evidence but evidence that is in existence. What existed was produced by the prosecution and the presumption cannot be made against the prosecution for not producing what never existed, (a crime diary that concerned the appellant’s case at Apomu Police station that state that PW1 was robbed between 0.6hrs – 9.40hrs). He urged on us to hold that the prosecution did not hide anything from the defence. Counsel also urged on us to hold that the appellant was not denied fair hearing as enshrined in section 36(6)(b) of the 1999 Constitution of the Federal Republic of Nigeria in that the “facilities” requested for and ordered by the trial court and with the prosecution was made available to the appellant for his defence.
RESOLUTION OF ISSUE 1 (ONE)
Issue 1 (one) as it were derives from grounds 2, 3 and 6 of the Grounds of Appeal. Under the issue the appellant is claiming that he was denied fair hearing at the trial court as enshrined in section 36(6)(b) of the Constitution which provides thus:
“Every person who is charged with criminal offence shall be entitled to –
a) …………;
b) To be given adequate time and facilities for the preparation of his defence;
c) ………..;
d) ………..;
e) ……….. ”
It is trite that a non-compliance with or a defect or an irregularity in procedure at any stage of adjudication from preferment of charges, arraignment, trial, conviction to the sentencing of an accused person is fatal to adjudication. It is indeed tantamount to a denial of justice to an accused.
Once again, the appellant’s grouse is that he was denied the benefit of the crime diary which according to him contained the original complaint of the prosecution’s “star witness” (PW1) and which complaint was lodged at Apomu Police Station stating that the alleged armed robbery was committed between the hours of 06.00hrs and 9.40hrs.
Now, it is evident that at some point in the course of the trial the appellant sought the order of the trial court inter alia:
“2. An order of this Honourable Court compelling the prosecution to produce the following documents relating to the charge before this Honourable Court in this case namely:
i. Crime Diary of Apomu Police Station concerning entries of 25/11/01
ii. Crime Diary of Area Commander’s office, Ile Ife between 25th – 28th November or thereabout.
iii. Crime Diary of the State Criminal Investigation Department (CID) Osogbo of 28/11/2001 or thereabout concerning this case.
iv. The Routine Diary of Ikire Police Station concerning 25/11/2001.”
In granting the foregoing application the learned trial court ordered as follows:
“Prayers 2 and 4 relating to the production of documents are hereby granted as prayed since they are not opposed.” (See page 69 of the record).
It is apparent from the foregoing that the documents sought and prayed for and which was duly granted by the trial court, are the documents containing entries relating to the charge being entries made at (i) the Apomu Police Station on 25th November, 2001, (ii) the Area Commander’s office, Ile-Ife between 25th and 28th November, or thereabout, (iii) the State Criminal Investigation Department (CID), Osogbo of 28th November, 2001 or thereabout and (iv) the Routine Diary of Ikire Police Station respectively. It follows clearly and I so hold that any other entry not concerned with or related to the instant appeal was obviously not prayed for.
From the records, Exhibits H, H1, H2 and H3 were produced by the prosecution before the trial court. Exhibit H, to my satisfaction contains an extract from crime diary of entries made 25th November, 2001 in relation to this case at the Apomu Police Station. Exhibit H1 is an extract from crime diary of the State CID with serial nos. 321 made 30th November, 2001 at about 0830 hrs, while Exhibits H2 and H3 are extracts from the office of the Nigeria Police, Apomu in connection with this case. These exhibits were tendered in evidence by the prosecution in due compliance with the order of the trial Judge, but the appellant as DW1 in reaction to the documents said:
“These are not the crime diaries that were in the file which I saw in 15/2/2002 on the way to the Magistrate Court which extract does not contain serial number neither time in the body of the extract.”
Appellant instead tendered a document which according to him was the particular document and the same was admitted in evidence as Exhibit H. The contention of the appellant is that Exhibit H was used to replace the original entry made at Apomu Police Station by one Dickson Elumaro, the IPO at Area Commander’s Office. That that original crime diary which the appellant said he saw was to the effect that the PW1 was robbed at between the hours of 06.00 to 09.40hrs. Appellant’s further contention is that failure to produce the original crime diary has prevented the trial court from being able to resolve the conflicts in the evidence of the PW1 as to the actual time the alleged armed robbery took place.
Now as is common ground to both sides, a Police Station’s Crime diary is a book or a bank containing all entries made in respect of complaints made at the Police Station by other members of the public. Legally it is a public document pursuant to the provisions of section 102 of the Evidence Act, 2011. It seems to me and I so hold that for all such document or the bulk of it to be produced in court for the use by or benefit of any body, there shall be a specific order to that effect by the court.
As rightly applied for by the appellant before the lower court, was the entries related or concerned with the appellant’s case. The trial court in line with the application granted the prayers as made. This is to say that the documents to be produced are those related to the charge before the trial court as opposed to the whole diaries containing other entries not connected to the instant case. Those other entries not connected or related to the charge were not asked for and so ought not be produced. It seems to me and I so hold that the prosecution complied with the trial court’s order when it produced the certified true copies of appropriate entries made in the respective police crime diaries and connected with the charge. The contents of Exhibit H in particular and H1, H2 and H3 in general are presumed by the court to be true, correct and genuine subject to the provisions of sections 105 and 146 of the Evidence Act, 2011. It is therefore for the appellant who alleged that Exhibit H was a forged document to prove same. With no proof to the contrary, the said Exhibits H, H1, H2 and H3 remain valid being the genuine, true and correct copies of the entries as they relate to the instant appeal.
Aside from questioning the legal validity of those exhibits, the appellant appears pained by the fact that the alleged time of the robbery was varied in Exhibit H. His defence of alibi has brought about the controversy over time as specified in the exhibits. Appellant’s contention is that he was in his house on the date of the incident from about 7.45am till he resumed duty at the police station opposite his house around 8.40am. PW1 (complainant) in his original complaint at the Apomu Police Station which the appellant said he saw, stated that the alleged crime occurred between the hours of 06hrs. and 9.40hrs. of the same day, while it is contained in Exhibit H that the robbery occurred at 08.10hrs of the same day. It seems to me and I so hold that the time differential in Exhibit H and the so-called original entry is of no consequence at alt with regards to the time of the robbery incident. Be that as it may, what is acceptable to the court as the time of the robbery is 08.10hrs as is contained in Exhibit H which herein and as already stated is a valid and genuine copy of the entries made at the Apomu Police Station as it relates to this case.
I am undoubtedly convinced, given the facts on record that the respondent at the trial court produced the requisite extracts/documents from the respective police crime diaries such as Exhibits H, H1, H2 and H3 in compliance with the order of the trial court.
As rightly submitted by the learned counsel for the appellant the business of the state is fairly and impartially to exhibit all facts before the court of trial as the state has no special interest in convicting an accused person at all cost but to know the right person and do justice. Indeed the respondent; is absolved of hiding material facts having produced the documents (crime diaries) being facilities demanded by the appellant and in line with the order of the trial court. Therefore the findings of the trial based on Exhibits H, H1, H2 and H3 are founded on law or evidence as opposed to speculation. It follows that as far as the production of the respective and relevant police crime diaries is concerned, the accused/appellant’s right to fair hearing as enshrined in section 36(6)(b) of the Constitution was observed to the letter. Issue one is accordingly resolved in favour of the respondent and against the appellant.
ISSUE 2 (TWO)
On issue two which derives from grounds 1, 4, 5, 7 and 8 of the Grounds of Appeal, the learned counsel for the appellant submits that the prosecution failed woefully to prove the offence of armed robbery against the appellant beyond reasonable doubt.
Counsel recapped what the prosecution must prove to establish the offences of armed robbery as provided for under section 1(1) & (2) of the Robbery and Firearms (Special Provision) Act, 1990 as well as the authorities of Nwachukwu v. State (1985) 3 NWLR (Pt. 11) C.A. 218 at 224 para. G; and Emenegor v. State (supra) and went on to submit that the prosecution failed woefully to prove any of the ingredients of armed robbery in this case.
He contended that the prosecution, throughout the totality of its evidence failed to establish either that there was robbery or that the accused person, on 25-11-2001 was armed with firearms or any offensive weapon. Counsel wondered why:
i. The PW1 (Rasheed Folorunsho) who claimed to have been robbed at about 8.00am had to wait till 10.30 or so before reporting the incident at Ikire police station when Ikire and Apomu townships are close neighbours.
ii. The PW1 had to go to Ikire township to look for the accused person before heading for the police station to lodge complaint.
iii. If truly the PW1 had earlier reported the incident at Apomu Police Station and his complaint was entered into the crime diary why did the prosecution refuse to produce the crime diary as ordered by the court.
iv. If truly PW1 was robbed at Apomu junction why was it that investigation of the police did not cover the scene of the alleged crime on the same day (25-11-2001).
v. If the appellant had been armed with a Kalashincol rifle gun as alleged by the PW1 why was that gun not found in the house of the appellant which was searched immediately after the alleged armed robbery? And if the gun was not found in his house why did the dragnet of the police investigation not extend to the scene.
vi. of the crime or the house of Blessing Okafor (appellant’s girlfriend) about whom the appellant informed the investigating police officer timeously?
vii. If truly the appellant had allegedly robbed another person on that day, why was the appellant not charged with that other crime as well or if he was not charged why did the prosecution not call that other alleged victim as a witness.
viii. And if the prosecution had not established that the appellant was armed with a gun, what is the ‘firearm’/’offensive weapon’ he allegedly used to threaten the PW1.
ix. If the Kalashincol rifle gun was not recovered from the appellant on what basis did the learned trial Judge hold that the second ingredient of the offence of armed robbery was proved.
The learned counsel’s contention is that all the above-stated posers have cast a lot of doubts on the evidence of PW1 (who is the star witness) and that the doubts should have been resolved in favour of the appellant.
Learned counsel conceded that though Exhibit C (38mm life ammunition) which was recovered from the house of the appellant can be said to be a firearm or an offensive weapon but it could not have been used alone without a gun to threaten the PW1. He submitted that there was no proper evaluation of the exhibit by the learned trial Judge. Rather the trial Judge just accepted it as it was dumped on it by the prosecution thereby falling into a serious error which has occasioned a miscarriage of justice. Counsel contended that the appellant’s story of why he was caught in possession of Exhibit C remained uncontradicted by the prosecution. Also Exhibit C was neither recovered from the person of the appellant nor at the purported scene of crime (Apomu junction) nor at the Ikire Police Station where the appellant was arrested.
Learned counsel for appellant also submits that Exhibits H, H1, H2 and H3, either taken individually or together have not established any case against the appellant. According to counsel all these documents are mere purported “extracts from crime diaries and NOT CRIME DIARIES” [emphasis supplied] as requested for by the accused person/appellant and ordered by the court. Counsel opined that the learned trial Judge was in error when he agreed with the prosecution that Exhibits H1, H2 and H3 were Certified True Copies of the crime diaries ordered to be produced and the said error has occasioned a miscarriage of justice which learned counsel has urged upon us to disturb.
Appellant’s counsel also urged on us to take judicial notice of the fact that pursuant to a Motion on Notice dated and filed 25th September, 2008 that the trial court on 23rd March, 2009, granted (among others) the following orders:
i. “An order compelling the prosecution to produce the following documents relating to the charge before this Honourable Court in case:
ii. Crime Diary of Apomu Station concerning entries of 25-11-2001
iii. Crime Diary of Area Commander’s Office at Ile-Ife, between 25th – 28th November, 2001 or thereabout.
iv. Crime Diary of the State CID., Osogbo of 28-11-2001 or thereabout concerning this case.” (Pages 61 and 69 of the record).
Counsel contends that the prosecution deliberately and without qualms, disobeyed the above-stated order of the trial court by refusing to produce those Crime Diaries which if they had been produced would have enabled the trial court determine the actual time that the PW1 originally stated in his complaints at the police station that the alleged armed robbery took place. If the prosecution had produced those crime diaries their content would have been unfavourable to the said prosecution by virtue of section 149(d) of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990. And on the other hand, the non-production of those crime diaries had denied the appellant a fair hearing contrary to section 36(6)(b) of the Constitution of the Federal Republic of Nigeria.
Counsel urged that refusal to produce the crime diaries has created doubts in the case of the prosecution and such doubts are to be resolved in favour of the appellant, more so when the appellant stated in his evidence that a crime diary is an 80-leave notebook. This is to say that the crime diary is not a bulky object; it is easily movable. This piece of evidence according to counsel was also not contradicted by the prosecution. See Modupe v. State (1988) 4 NWLR (Pt. 87) 130 at 137; and Azeez v. State (1986) 2 NWLR (Pt. 23) 541 at 545, para. B.
The learned counsel for the appellant pressed on that notwithstanding the learned trial Judge’s impression of the PW1 as a witness of truth, the said trial court lost sight of the hallowed principle of law that ‘I saw and heard’ or ‘I believe’ or ‘l am satisfied’ in reaction to the testimony of a witness does establish a fact in the absence of satisfactory reasons or facts justifying such assertion. Against this background, counsel submits that the learned trial Judge’s clean bill of health which he gratuitously granted PW1, who did not merit same in the least in the circumstances of this criminal case lacks basis. He relied on:
1) Alli Akibu v. Joseph Opaleye (1974) 11 SC 189 at 203;
2) Oladehin v. Continental ile Mills Ltd. (1972) 2 SC 23, 32;
3) Bhojsons Plc. v. Daniel Kalio (2000) FWLR (Pt. 14) C.A. 2356 at 2363 – 2365, paras. E – E; and
4) Bozin v. The State (1935) 2 NWLR (Pt. 8) 456 at 471, paras. C – E.
On the 3rd ingredient, as to whether the appellant was in company of any person so armed, the learned counsel for the appellant contends while adopting his submissions earlier made, that this ingredient has not been proved because throughout the case of the prosecution there was no allusion to any thing of the sort.
On the alibi raised by the appellant, learned counsel contends that it was timeously raised in his statements to the police. (See Exhibits D, E, F and F1). Yet there is no evidence by the prosecution that the alibi was investigated and if it was, that it was found to be true, thus the prosecution did not give evidence to challenge the alibi. Counsel continued that aside from introducing the evidence of alibi which is the much burden placed on it the appellant also led some circumstantial evidence tending to support the alibi. Such is that (1) no gun was found on him when he was arrested and neither was any found in his house which was searched immediately after his arrest; and (2) the sum of N4,500:00 (Four Thousand Five Hundred Naira) allegedly robbed off the PW1 by the appellant was neither found on the appellant upon his arrest, nor was it found in his house which was searched immediately after his arrest. According to counsel, the above doubts arising from the circumstantial evidence ought to have been resolved in favour of the appellant but the trial court failed to do so. Bozin v. State (supra); and Ozaki v. State (1998) 1 ACLR. 27, 46, 47, para. 20 referred.
On inconsistencies, discrepancies and contradictions in the evidence of prosecution, the learned counsel for the appellant submitted that same are full in the prosecution’s case and which case has been discredited under cross-examination to the extent that no reasonable tribunal should convict on it. Counsel relied on:
a) Offorlette v. (2000) 7 WRN 86 SC;
b) Ikem v. State (1985) 1 NWLR (Pt. 2) SC. 378 A -E;
c) Muka v. State (1970) 9-10 SC. 305 at 325; and
d) Onubogu v. (1974) 4 NWLR (Pt. IV) 538 at 545, para. 3.
It was the further submission of the learned counsel for the appellant that it was most inappropriate that the PW1 (as the complainant) was not only on the team that searched the house of the accused but that he actually played a leading role by being the one combing the appellant’s kitchen and who recovered Exhibit B the purported substances suspected to be cocaine. See Exhibit G1. Counsel went on to expatiate by saying that the PW1 is an interested party. That the fact of his being a police officer did not confer on him a higher status than any other complainant; more so when no other member of the team came to give evidence in the case. That PW2 featured only in respect of Exhibit G1. He urged for a resolution of the doubt created herefrom in favour of the appellant.
Counsel also stressed on the need for corroboration of the evidence of PW1. He conceded that only one witness whose evidence is of high probative value can secure a conviction but that in the present circumstance neither the evidence of the PW1 and the PW2 nor of both of them can secure a conviction of the appellant because according to him they lack probative value. He submits that the evidence of the PW2 rather than improve on that of the PW1 derogates from it. Counsel forged on that their evidence put together as a whole merely raises suspicion and that the fact of suspicion cannot give them the quality of corroborative evidence needed. See Abieke v. State (1975) 9-10 SC. 97, 104; and Onah v. State (1985) 3 NWLR (Pt. 12) 235 at 243, paras. A – B
He further argued that the learned trial Judge fell into a serious error when he held that Exhibit D (a statement of the appellant) constituted a corroborative evidence to PW1’s evidence. For one, Exhibit D is neither a confessional statement nor does it contain an admission of any of the ingredients of the offence of armed robbery. He said that there cannot be corroboration of evidence that does not exist or if it exists, is completely devoid of credibility as the evidence of PW1 herein. Relying on Macfoy v. U.A.C. Ltd. (1962) A.C. 152; and Utuk v. State (supra) 573, paras. G-H; the learned counsel for the appellant re-echoed that one cannot corroborate what is not in existence much the same way as one cannot add, improve and/or take away from nothing.
Counsel finally urged on the court to resolve this issue in favour of the appellant and allow the appeal, set aside the conviction and sentence of the trial court; acquit and discharge the appellant.
In reaction to issue two, the learned counsel for the respondent stated the obvious which is that by the nature of this case the burden placed on the prosecution is proof beyond reasonable doubts pursuant to the provisions of section 135 (1) of Evidence Act (?). Counsel was quick to add that “proof beyond reasonable doubt” is not “proof beyond every shadow of doubt”. See John Agbo v. The State (2006) 2 SCM 1, 29; and Adebayo v. State (2008) 6 ACLR 372 at 395.
Counsel submitted that by the evidence of the PW1 as led before the trial court that same remained unshaken throughout by way of cross-examination. He urged on us to hold that the prosecution was able to prove that there was robbery and that the robber was armed with a firearm at the time of the robbery.
On whether the accused is the armed robber or among the robbers, learned counsel relying on the evidence of the PW1 who said that he was robbed at about 8:00am, in the broad daylight; that he looked at the robber and saw the clothe (Exhibits A and A1) he was wearing and that he saw that the robber was carrying a gun and that he instantaneously recognized the appellant as the culprit when he saw him later all go to satisfy proper identification of the accused who did not disguise himself in any way. Counsel referred to Otti v. State (1993) 4 NWLR (Pt. 290) 675 at 681 para. B – C and 682 paras. E-F; and Orimoloye v. The State (1984) NSCC 654 at 657, where the robbery took place 1:00am and following morning at police station the victim that was shot saw and recognized the accused as the one who fired at him. On question of identification parade, the Supreme Court held that:
“spontaneous reaction towards the recognition of appellant in respect of an offence committed less than six hours earlier is a more acceptable identification of the appellant than a programmed identification.”
Counsel in line with the foregoing authorities urged on us to accept the PW1’s evidence of recognition of the accused which happened within the hour and which evidence was not shaken during cross-examination. See Tajudeen Adeyemi & Ors. v. The State (1991) 1 NWLR (Pt. 170) 679 at 694 upon which he urged us to hold that the PW1’s mental perception as it relates to the identification/recognition of the culprit at the time of the robbery was high.
Regarding the posers raised by the learned counsel for the appellant, learned counsel for the respondent submits that they are pure conjectures with no factual or evidential foundation upon which they can stand.
On possession of Exhibit C, the learned counsel for the respondent submits that the appellant’s explanation of it in court is at variance with the explanation he gave in his extra judicial statement Exhibit E. With reliance on Egbeghonome v. The State (2001) 2 ACLR 262 at 283-284 where it was held that where the extra judicial statement of the accused is at variance with his testimony in court, the court is to treat both evidence as unreliable, the learned counsel urged us to treat both evidence of the appellant in this regard as unreliable.
Learned counsel on the issue of whether or not Exhibits H, H1, H2 and H3 established any case against the appellant and that they are mere extracts from crime diaries and not crime diaries, submitted that they are adopting their earlier submission as made on it in issue one.
Regarding the issue of alibi learned counsel for the respondent relying on the authorities of Umani v. State (2005) 4 ACLR 67 at 77; Ogoala v. State (2009) 7 ACLR 357 at 378 – 389; and Sowemimo & Anor v. The State (2004) 1 C.A.C. 311 at 318 para. G – H, submitted that in the defence of alibi the accused must discharged the evidential burden of stating particulars of that other place, time and names of persons who can testify of his being there. Furthermore, counsel submitted that where an accused is fixed to the scene of the crime, alibi no longer avails him. See also Afolalu v. The State (2010) 11 SCM 1 at 14 para H-I; Njovens v. State (1973) 5 SC 17; and Madagwa v. State (1988) 5 NWLR (Pt. 92) 60.
On the issue of alleged inconsistencies in the prosecution’s case, the learned counsel for the respondent on the authority of Ogoala v. The State (supra) drew a distinction between contradiction and discrepancy and submitted that no contradiction has been identified by the defence in the facts as stated at pages 21 – 22 of the appellant’s brief of argument. He urged on us to discountenance the appellant’s argument on alleged contradictions, as immaterial discrepancies.
With respect to propriety or otherwise of the PW1 being on the team that conducted search in the house of the appellant, learned counsel for the respondent submitted that the PW1 both in his evidence-in-chief and in the course of cross examination never admitted either being on the team or played leading role in the team but that he was there when the police conducted their search.
On the need for corroboration of the PW1’s evidence, learned counsel contended that the case of armed robbery does not fall within the class of offences where corroboration is required by statute. He referred to Afofalu v. The State (supra) at pgs. 22-23. The court was urged to hold that the trial court was right when it held that Exhibit D corroborated PW1’s evidence to the effect that another person aside from PW1 also identified the appellant as the culprit in the presence of both the appellant and Police officers at Ikire Police Station.
Finally counsel urged that issue two be resolved in favour of the respondent and the court to also hold that the prosecution by credible evidence proved the offence of armed robbery against the accused person beyond reasonable doubt. He further urged that we uphold the decision of the trial court in its entirety.
RESOLUTION OF ISSUE 2 (TWO)
Much as the law is that in criminal cases the burden placed on the prosecution is to prove its case beyond reasonable doubt it does not state that the proof shall be beyond every shadow or iota of doubt. See section 135(1) of the Evidence Act, 2011 and the authorities of John Agbo v. State (2006) 2 SCM 1; and Alabi v. The State (1993) 7 NWLR (Pt. 307) 511 at 523 F – H. In discharging the burden the prosecution as it relates to the offence of armed robbery must satisfy the following ingredients:
i. That there was robbery;
ii. That the robber(s) was/were armed with firearms or offensive weapon; and
iii. That the accused was the robber or among the robbers.
Recourse is had to the cases of Olayinka v. State (2007) 8 SCM 193, 208; Ikemson v. The State (1998) 1 ACLR 80 at 103; Ogidi v. The State (2003) 26 WRN 61 at 81-82; and Nwachukwu v. State (supra).
The evidence of PW1, who testified not just as the victim/complainant but apparently as the only eye witness, was direct and unequivocal as it touches on the first and second ingredients aforestated. He testified that he was in his car at about 8:00am on 25th November, 2001, driving from Ibadan through Apomu at Apomu roundabout when he saw a man jump unto the road carrying an AK 47 rifle. Thinking that the armed man was a police officer on duty, the PW1 drove up and stopped only for the armed man to bring put the nuzzle of the gun on the PW1’s left ear and ordered him to bring everything on him. PW1 brought out his purse and offered him N1,000:00 believing him to be the usual Nigeria Police Officer, but he turned it down demanding for everything on him otherwise he would blow the PW1’s head off his body. PW1, while emptying his purse cleverly hid his own Id. Card for fear of exposing his identity to the robber. However, PW1 threw all the money in his purse at the robber. PW1 was then ordered to go and he drove straight from the scene to the Apomu Police Station and lodged complaint (See pages 21 – 22 of the record).
As a matter of fact, no aspect of the foregoing piece of evidence as led by the PW1 was disturbed under cross-examination. Accordingly the prosecution has been able to establish in line with the first and second legs of the necessary ingredients, that there was robbery and that the robber was armed with an offensive weapon i.e. AK 47 rifle.
As to whether the accused is the armed robber or was one of the armed robbers, PW1 being the victim had it in his evidence that the incident occurred at about 8:00am; that he sighted the man, had a close look at him and saw that he was carrying an AK 47 rifle. PW1 also observed that the robber was wearing a pair of blue jeans trousers and a multi-coloured T-shirt. PW1 further said that he looked at the robber with confidence, believing that he must be a policeman.
Nothing can be more obvious from the foregoing PW1’s evidence than that he spent a spell of agonizing time or moment with the robber when he had him in that tight but dangerous fix. Albeit, there was no evidence that the robber in issue was in any way masked hence the PW1 was able to absorb the looks and or appearance of the robber. After the robbery PW1 made straight to the Apomu police station and with policemen from there they accompanied him to the scene in search of the robber but he was not there. PW1 and the policemen went back to the Apomu police station where he made his statement. From the Apomu police station, the PW1 made for Ikire police station. On leaving the Ikire police station PW1 headed to town with a view to going to borrow some money. At the Sango Roundabout, the PW1 sighted the robber this time in a police uniform with corporal rank. Still with the belief that he is a policeman, the PW1 drove up to him, greeted him and offered him a drive to the Police Station if he was heading that way.
Again, all the above facts as led in evidence by the PW1 remained undisturbed under cross-examination thereby implying that they are true. There is no iota of doubt that an incident which occurred at about 8:00am obviously happened in broad day light and devoid of darkness. PW1’s evidence is direct and unequivocal as to who he saw and had a deadly brush with at the time hence when he ran into him a short while after he instantly recognized him irrespective of the fact that he the robber had changed clothes. It is pertinent to recall at this point the case of Otti v. The State (supra); wherein the victim was robbed on 21/6/82 and 8 days after she accosted a taxi driver and raised alarm that the driver was the same person that drove when she was robbed.
The court held that:
“instantaneous recognition of the appellant and his car by the complainant and the fact that the offence took place in broad day light and the appellant and his companion were not masked or disguised made identification parade unnecessary and superfluous.”
See also Attah v. State (2010) 10 NWLR (Pt. 1201) 190 SC.
It is crystal clear in the instant appeal, when placed side by side with the foregoing authorities that the instantaneous identification and recognition of the accused/appellant as the person who while armed robbed him on the date of the incident leaves no doubt in the mind of the court more so as it place in broad daylight and the robber was not masked. To lend credence to the stance of the court regarding the PW1’s evidence of identification is the Supreme Court’s holding in Tajudeen Adeyemi & Ors. v. The State (1991) 1 NWLR (Pt. 170) 679 at 694 that:
“Identification depends on mental ability and perception of individuals. Where a witness who gave evidence of visual identification was not cross-examined nor shaken under cross-examination nothing stops a trial Judge from accepting his evidence.”
Added to my finding above, it is noteworthy that the PW1’s evidence touching on the identification and recognition of the accused/appellant was not even broached in the course of his cross-examination. Thus the trial Judge had nothing to stop him from accepting the evidence to wit: that the accused was the same person who robbed the PW1 while armed with an AK 47 rifle.
Now, the appellant; had raised some posers as to why (one) the PW1 had to wait till 10:30am before reporting the incident at the Ikire Police Station.
It is manifest from this question that the appellant is not in doubt that the incident was eventually reported to the Ikire police station albeit at 10:30am. Although it is hard for me to see or perceive the evidential value of this question but I need to bring out the fact that there was no time wasted or lost between the time of the commission of the offence and the lodging of complaint by the PW1. The PW1 in his uncontroverted evidence testified that the robbery occurred at the APOMU junction, about 2 electric poles to the express. The victim said he drove straight from the scene to the APOMU police station and lodged complaint. Thereafter he went to the Ikire police station. It seems to me irrelevant in the circumstances of this case whether the PW1 went to Ikire Police Station immediately after the robbery or later on as he did. The point still remains that he went to a police Station directly after and lodged complaint and Apomu junction where the incident occurred from every indication falls under the Apomu Divisional Police station and as such the proper place for him to lodge the complaint first and from there he went to the Ikire police station.
The appellant’s second poser is why the PW1 had to go to Ikire township to search for the accused before heading for the Ikire police station to lodge complaint. On the contrary the lodging of complaint at the Ikire Police Station was first in time before the sighting and or his coming in contact again with the suspect as the assailant was at the time. Moreover, the PW1 as already noted was heading to Ikire town to go and borrow some money when he sighted the assailant. It’s therefore unfounded of the appellant to claim that the PW1 was heading to Ikire town in search of the appellant. See evidence of the PW1 as contained at page 22, particularly lines 13 – 20 thereof.
About the production or non-production of the crime diary by the prosecution, that issue has earlier been determined in this judgment consequent upon which I found and held that the prosecution pursuant to the order sought of and obtained from the trial court, produced before it Exhibits H, H1, H2 and H3 being the extracts or entries in the respective police crime diaries relevant to this case. I may have to add here that the Police crime diary whether a document of 80-leaves or not and as such movable or immovable is neither here nor there. The issue involved here is that the appellant did not ask for and was not granted an order for the bulk document to be produced in court. What the appellant asked for and which was granted was “entries concerning and or relating to the charge.” It was therefore going to be ultra vires of the trial court to order a production of the note book/crime diary containing other entries not related or concerned with this case.
The appellant’s fourth poser is “if truly the PW1 was robbed at Apomu junction why was it that investigation of the police did not cover the scene of the alleged crime on the same day (25-11-2011) (sic to read 25-11-2001).”
PW1 again in his evidence-in-chief contained at page 22 of the record testified to the effect that after the robbery he drove straight to the Apomu police station and lodged his complaint. Policemen from the Apomu police station got into their vehicle and followed him to the scene in search of the robber. On getting there they did not see him. However, they saw a vehicle that fell into the gutter. Hence, the investigation by the Apomu policemen took off immediately upon receiving complaint on that day and they went to the scene of the incident.
The fifth poser by the appellant reads:- if the appellant had been armed with a Kalashincol rifle gun as alleged by PW1 why was that gun not found in the house of the appellant which was searched immediately after the alleged armed robbery. And if the gun was not found in his house why did the dragnet of the police investigation not extend to the scene of the crime or the house of one Blessing Okafor (appellant’s girlfriend) about whom the appellant informed the investigating police officer timeously?
Starting from the last aspect of the question, I must point out that it is totally at the discretion of the police how they conduct their investigation. Thus, they reserve the right to extend their investigation to whoever or wherever they choose. To my mind the question of going to the house of the Blessing Okafor to search for the gun is uncalled for. This is because from the statements of the appellant to the police, he was at Blessing’s residence the night prior to the incident as opposed to the day of the incident. Searching the house of Blessing therefore need not arise given that the complaint regarding the act of robbery occurred after the appellant’s visit to her house. Moreover there was nothing in the statements (Exhibits D, E, F and F1) as made by the appellant to suggest that he had the opportunity immediately after the act to go to Blessing’s residence.
As to why the Kalashincol rifle was not found in the house of the appellant when same was searched leaves room for speculation as to where it was hidden. Not only is the court forbidden from engaging in speculation, it also does not alter the evidential proof already proffered by the prosecution to wit- (a) that there was a robbery; (b) that the robber was armed with an AK 47 rifle being an offensive weapon; and (c) that the appellant was the armed robber.
The sixth poser that the appellant raised is thus: “If truly the appellant had allegedly robbed another person on that day, why was the appellant not charged with that other crime as well or if he was not charged why did the prosecution not call that other alleged victim as a witness.
All I can say on this is that if truly the appellant was involved in another robbery incident on that day that other robbery incident is obviously different from and independent of the instant case. There is nothing on record to show me that the alleged other robbery was taking place simultaneously or within the same transaction or circumstance with the one PW1 is involved in. Since the other alleged robbery is independent of the instant appeal, it was again within the preserve of the police to charge or not to same to court. Also being a victim of another robbery does not qualify the said victim to be a necessary or material witness in the case at hand. Finally and granted that that other victim witnessed the current incident, a party reserves the right to pick and choose who to testify in its case. The issue as raised by the appellant is therefore of no moment.
Taking both the seventh and eighth posers together, my finding is that the prosecution did establish that the appellant was armed with a firearm/offensive weapon at the time he accosted him at the Apomu junction. That the Kalashincol rifle gun was not recovered from the appellant does not mitigate or remove from the fact that he was armed with it earlier that day. Exhibit ‘C’ (38mm life ammunition) which though an offensive weapon has no benefit to the prosecution’s case. This is because it was not the specific weapon that was used for the robbery. Hence, the passing remark made about it by the learned trial Judge at page 147, paragraph 2 of the record was all that it deserved. Exhibit “C” had no evidential value and as such the learned trial Judge was right when he failed to evaluate it.
One more aspect of the appeal which I need to touch on before ending this judgment is the issue of alibi as raised by the appellant’s counsel. Learned counsel’s argument is that it was raised timeously by the appellant in his statement to the police to wit: that he slept over the previous night at his girlfriend’s.
The relevant part of appellant’s statement (Exhibit F1) which he made to the police on 26th November, 2001 being a day after the incident reads:
“…. I slept with my lady friend Blessing and she washed my police uniform on the 24/11/2001 in the night time. I left her house in the early hour of 25/11/2001 after listen to the National News broadcast and I went to Ojale to iron my uniform….. I left to the police barrack which is my house and I started preparing for duty. One of the newly pass out constable saw me in the Barrack before I finally left my house for duty.” [Emphasis mine].
It is decipherable from the above statement to the police that the appellant had left his girlfriend’s before the criminal act took place. Obviously where he slept the previous night is immaterial and therefore did not call for any confirmation or otherwise by the police. The appellant in his defence at the trial court stated that the following day being Sunday which also is the date of the incident that he arrived his house from Blessing’s place at about 7:45am and started preparing for duty. He said he left his house for Police Station for duty at 8:40am. See page 73 of the record. Going by this evidence it then follows that between the hours of 7:45am and 8:40am that the appellant was in his room at the barracks. Meanwhile the PW1 on his part testified that he was robbed by the said appellant at Apomu junction at about 8:10am. As I earlier noted where the appellant was before the incident makes no difference. His where about at between 8:00am and 8:40am on the date of the incident is what matters. The evidence of PW1 which I have had no cause to doubt has it that the appellant was at the scene of the robbery at the time. In Sowemimo & Anor. v. State (supra), the Supreme Court enunciated thus:
“It is elementary law that where an accused person is unequivocally pinned to the locus in quo as one committing the offence the defence of alibi no more avails the accused. This is because the defence…. that he was elsewhere at the material time the offence was committed is destroyed by the unequivocal evidence of the witness … tying him to the locus in quo as one who committed the offence.”
See also Onuchukwu v. The State (1998) 4 SCNJ, 36; and Muhammed v. The State (2011) LPELR-4557 (CA).
The appellant in the instant appeal cannot hide under the defence of alibi as the evidence of the PW1 who saw him at about 8:00am on the date of the incident jump out of the bush armed, identified him a short while after as the person that robbed him. That direct and unwavering identification of the appellant by the PW1 soon after the robbery left no room for doubt as to the said appellant being the culprit as well as his where about at between 8:00am to 9:40am on the day in question. Consequently I hold that the appellant’s defence of alibi is of no moment and therefore not worth investigating.
In all I find the evidence of the PW1 despite being a lone eyewitness to be of high probative value and enough to secure the conviction of the appellant for the offence of armed robbery. Notwithstanding the one or two innocuous discrepancies spotted here and there such as the colour of jeans the appellant wore at the time of the incident being blue as against the khaki coloured pair of jeans tendered in evidence as Exhibit A, there seems to be no such inconsistency to warrant our overturning the findings of the learned trial Judge. After all both the PW1 and the appellant in their respective testimony in court described the pair of jeans as blue in colour. Perhaps this is a matter of being colour blind as well as the fallible nature of the human mind I would say. The material point here is that the appellant wore a pair of jeans on the day of the incident. On the whole the prosecution has been able to discharge the burden of proof placed on it beyond reasonable doubt. Accordingly issue 2 (two) is resolved in favour of the respondent and against the appellant.
May I quickly observe that as was correctly submitted by the learned counsel for the appellant, throughout the proceedings that gave rise to this appeal, the prosecution never led any evidence nor alluded to the 2nd count of attempted robbery. The inference to be drawn herefrom is that the said count two was abandoned, consequent upon which only the count on armed robbery was pursued here on appeal.
Finally, I need to register that it is rather unfortunate that the appellant who was legally armed as a policeman for him to use same and protect the citizenry out of his wicked and selfish desire turned same into a weapon of robbery and terror against innocent citizens.
In sum this appeal fails for being unmeritorious. The judgment conviction and sentence of the learned Hon. Justice W. O. Akanbi sitting at the Ikire Judicial Division of the Osun State High Court and delivered on Thursday the 22nd of July, 2010 in charge Nos: HRE/1C/2003 are hereby affirmed.
SOTONYE DENTON WEST, J.C.A.: The facts and the law in this appeal here has been so profoundly dealt with in the judgment of my learned brother, Cordelia Ifeoma Jombo-Ofo, JCA and which I am in entire agreement that I need no further descant thereof.
However, I feel constrained by the universal clamour against passing the death penalty. In as much as the provisions of the law in Nigeria are clear as in this instant case, which naturally would be to pass a sentence of death on the appellant. As the world daily evolves into a global village, I humbly feel our criminal administrative system should be geared towards that direction as well; after all developed climes have been agitating for an abolition of death sentence having proven not to reduce the solution to the high rate people involved in crime overtime.
It is in the light of this, that I order that the appellant’s death sentence be commuted to life imprisonment.
MOJEED ADEKUNLE OWOADE, J.C.A.: I read in draft the judgment delivered by my learned brother Cordelia Ifeoma Jombo-Ofo, J.C.A. I agree with the reasoning and conclusion. I am also of the view that the appeal lacks merit and ought to be dismissed. I also affirm the conviction and sentence of the appellant.
Appearances
Awoniyi Alabi, Esq. with
R. U. Nwogu, Esq.For Appellant
AND
Adewale Afolabi, Esq. Attorney-General with
Dr. J. O. Anwo, (Senior State Counsel),
Biodun Badiora (Assistant Chief State Counsel) and
Adekunle Adeniyi (State counsel) for the StateFor Respondent
