WASIU YINUSA v. THE STATE
(2019)LCN/13517(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 11th day of June, 2019
CA/IB/41C/2018
JUSTICES
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
NONYEREM OKORONKWO Justice of The Court of Appeal of Nigeria
ABUBAKAR MAHMUD TALBA Justice of The Court of Appeal of Nigeria
Between
WASIU YINUSA – Appellant(s)
AND
THE STATE – Respondent(s)
RATIO
WHETHER OR NOT IT IS ONLY DOCUMENT RECEIVED IN EVIDENCE AND PROPERLY LABELLED THAT CAN BE USED IN FINDING AN ACCUSED PERSON GUILTY
It is only a document received in evidence and properly labeled that can be used in finding an accused person like the Appellant herein guilty. Therefore the said document cannot be relied upon in convicting the Appellant. See the following cases:- MANGAI VS. STATE (1993) 3 NWLR part 279 Page 108 at 123 PARAGRAPHS D-F.
In – SAIDU VS THE STATE (1982) 4 S,C (REPRINT) PAGE 26, it was held among others that:- “To be of any value, a confessional statement must be admissible, and properly, and legally admitted in evidence. It is of no value if it is not in evidence.” PER BADA, J.C.A.
WHEN A TRIAL WITHIN TRIAL IS NECESSARY
It is trite that trial within trial is necessary when a Confessional Statement is objected to on grounds of duress, coercion, promise etc. which may be alleged when the statement is tendered. The onus is on the prosecution to prove that it was made freely and voluntarily. It is only when the Prosecution has proved this that the statement is admitted in evidence. See the following cases:-
– EMEKA VS THE STATE (2011) 9 SCM PAGE 39
– DANIEL MADJEMU VS THE STATE (2001) 6 SCM PAGE 16.
I am of the view that trial within trial is a mini trial within the con of the main trial to try to determine the veracity of the account of the accused person as to whether his statement to police was voluntarily made or not. See
– ADELARIN VS F.R.N (2010) 37 WRN Page 85
– JUA VS STATE (2008) ALL FWLR part 440 Page 781. PER BADA, J.C.A.
JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the Judgment of High Court of Oyo State, Ibadan Judicial Division in CHARGE NO:- I/6C/2006 – BETWEEN: THE STATE VS. (1). ABIODUN YINUSA, (2). WASIU YINUSA, delivered on the 4th day of January 2011. Wherein the Appellant (i.e. 2nd Defendant) was convicted and sentenced to death by hanging.
Briefly the facts of the case are that the Appellant who was the 2nd Defendant at the lower Court was charged along with another person for the following offences:-
(a). Conspiracy to commit felony to wit: Armed Robbery contrary to Section 5(b) and punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act Cap 398 Vol. XXII Laws of the Federation of Nigeria 1990 (as amended), and
(b). Armed Robbery contrary to and Punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act Cap 398, Volume XXII Laws of the Federation of Nigeria 1990 (as amended).
At the trial before the lower Court, three witnesses testified for the Prosecution while each of the two accused persons personally gave evidence to
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defend themselves without calling any witness.
At the end of trial, the learned trial Judge in a Judgment delivered on the 4th day of January 2011 convicted both the Appellant, the other accused person and sentenced them to death by hanging.
The Appellant who is dissatisfied with the Judgment of the lower Court appealed to this Court.
The learned Counsel for the Appellant formulated four issues for the determination of the appeal. The issues are set out as follows:-
?(i). Considering the fact that the statements of the Appellant was temporarily marked as IDX3-4 during the course of trial within trial but not eventually received and labeled in the main trial, is it proper in law and equity to use the same to convict and sentence the Appellant to death at the conclusion of the main criminal trial.
(ii). Considering the specific finding of fact made by the Honourable trial Court on the statements made at Sanyo Police Station is it proper for His Lordship of the trial Court to conduct another trial within trial on the same statement when in law His Lordship has become functus officio. (Distilled from Grounds 2, 9 and 11).
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(iii). With or without the purported Exhibit 2 and 2A, can it be said that the Prosecution established the basic element of the offences of Conspiracy to commit Armed Robbery and Armed Robbery beyond reasonable doubt. (Distilled from Grounds 3, 4, 7, 8, 9 and 10).
(iv). Whether the release of certain Exhibits on bond and eventual sale by PW3 was right in law and equity. (Distilled from Grounds 5 and 6).?
The learned Counsel for the Respondent in his own case formulated three issues for the determination of this appeal. The said issues are set out as follows:-
?(1). Whether the release of certain exhibits on bond and eventual sale by PW3 affects the justice of this case.
(2). Whether the lower Court was right to have conducted trial within trial twice in the circumstance of this case and whether Exhibit 2 was rightly admitted and relied upon by the lower Court.
(3). Whether or not the Prosecution proved the offences of Conspiracy to commit Armed Robbery and Armed Robbery against the Appellant beyond reasonable doubt.?
?
At the hearing of this appeal on 21/5/2019, the learned Counsel for the Appellant stated that the appeal
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is against the Judgment of Oyo State High Court delivered on 4/1/2011. The Notice of Appeal was filed pursuant to the leave of Court granted on 16/1/2018. The record of appeal was transmitted on 8/2/2018.
The Appellant?s Brief of Argument was filed on 8/2/2018 while the Appellant?s Reply Brief was filed on 29/3/2018, but it was deemed as properly on 3/4/2018.
The learned Counsel for the Appellant adopted and relied on the two briefs as his argument in urging that the appeal be allowed.
The learned Counsel for the Respondent on the other hand also referred to the Respondent?s Brief of Argument filed on 14/3/2018 and deemed as properly filed on 3/4/2019.
He adopted and relied on the said brief as his argument in urging that the appeal be dismissed.
?
I have carefully gone through the issues formulated for the determination of this appeal by Counsel for the parties. I am of the view that the issues formulated by Counsel for the Respondent did not cover the grounds of appeal but nonetheless it is encapsulated in the issues formulated on behalf of the Appellant. In the circumstance, I will therefore rely on the issues
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formulated for determination of the appeal on behalf of the Appellant.
ISSUE NO 1
Considering the fact that the statements of the Appellant was temporarily marked as IDX3-4 during the course of Trial within Trial but not eventually received and labeled in the main trial, is it proper in law and equity to use same to convict and sentence the Appellant to death at the conclusion of the main criminal trial.
The Learned Counsel for the Appellant referred to the record of Appeal pages 29 to 30 which showed that at the point the prosecution wanted to put in the statements of the Appellant and his case-mate in evidence through PW2, there was opposition from the defence on the ground of involuntariness, this prompted the trial court to order for trial within trial.
The prosecution therefore put the statements of the Appellant before the Court and same were temporarily marked as IDX3-4, while statements of the Appellant?s case-mate were marked as Exhibits IDX1-2. And at the conclusion of the Trial within Trial, the learned trial Judge stated thus:
“In my view the statement is direct, positive and equivocal and not taken by duress, there
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was nothing on the face of Exhibits IDX1-2 sought to be tendered in this case to indicate that the two accused persons in this case were induced, threatened or even forced to make IDX1-2. It is therefore part of the evidence before the court. In the final analysis and having regard to the above discourse, I hold that the temporary IDX1-2 is received in evidence and marked Exhibits 1-2, I so hold.”
The Learned Counsel for the Appellant pointed out that the trial court only received the temporary IDX1-2 as Exhibits 1-2. It follows therefore that IDX3-4 which were statements of the Appellant were never received in evidence by the trial Court. The two statements therefore remained temporary statements.
The Learned counsel for the Appellant now referred to page 103 of the record of appeal where the trial Judge in the comfort of his chambers received and labeled IDX3-4 as Exhibits 2 and 2A.
The Learned counsel for the Appellant therefore submitted that Exhibits 2 and 2A were never received in evidence and as such cannot form the basis of conviction of the Appellant.
?
The Learned counsel for the Respondent either deliberately or inadvertently
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failed to respond to the issue under consideration i.e ISSUE 1 which was based upon ground 12 of the Notice and ground of appeal.
In the circumstance I am of the view that a Respondent who files a brief of argument and ignores some grounds of appeal and like in this case, ground 12 of the Notice and grounds of appeal upon which Appellant?s Issue No.1 is based, is deemed to have adopted the said Issue No. 1.
The Legal effect of failure of the Respondent to react to the Appellant?s Issue No. 1 is that the Respondent is deemed to have conceded and admitted the Issue. See the following cases -NITEL LTD VS. SANI (2011) LPELR – 4604 (CA) PAGE 3.
-AGBAI VS. OKOGBUE (1991) 7 NWLR part 204 PAGE 391 AT 403.
– OSSAI VS. WAKWAH & OTHERS (2006) LPELR – 2813 SC PAGE 11.
Let me now go back to the substance of the issue under consideration in this appeal. The Appellant?s statement was received in evidence during trial within trial as IDX3-4. The attempt made by the learned trial Judge to receive and label IDX3-4 as Exhibits 2 and 2A is not acceptable. This is because a document not received in open Court cannot be
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received in chambers since at that point the Appellant had no opportunity to cross examine the PW2 who wanted to put in the statement.
In my view the act of receiving and labeling IDX3-4 as Exhibits 2 and 2A in chambers of the learned trial Judge while writing his Judgment violates the fair trial of the Appellant.
It is only a document received in evidence and properly labeled that can be used in finding an accused person like the Appellant herein guilty. Therefore the said document cannot be relied upon in convicting the Appellant. See the following cases:- MANGAI VS. STATE (1993) 3 NWLR part 279 Page 108 at 123 PARAGRAPHS D-F.
In – SAIDU VS THE STATE (1982) 4 S,C (REPRINT) PAGE 26, it was held among others that:-
“To be of any value, a confessional statement must be admissible, and properly, and legally admitted in evidence. It is of no value if it is not in evidence.”
In view of the foregoing, this Issue No.1 is therefore resolved in favour of the Appellant and against the Respondent.
ISSUE NO 2
Considering the specific finding of fact made by the Honourable trial Judge on the statement made at Sanyo police station, is
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it proper for the learned trial Judge to conduct another Trial within Trial on the same statement when in law His Lordship has become functus officio (Distilled from grounds 2, 9 and 11).
The Learned counsel for the Appellant referred to 3rd day of April 2006 i.e the date of commencement of trial when PW1 Olanrewaju Olanipekun a Police Officer serving at the State CID Iyaganku, Ibadan testified.
He gave evidence that after the Appellant was arrested, that he was taken to Sanyo Police Station and he confessed to the commission of crime charged. The Appellant?s case-mate also made a Confessional Statement. The PW1 wanted to put the Confessional Statement in evidence but there was objection from Counsel for the Appellant at the trial court.
Trial within trial was eventually ordered. At the conclusion the Court ruled as follows:-
“The IPO told the Court that the two accused persons were not shot at state CID but he saw evidence of shot on them properly at the police station where they were 1st arrested. Taken both accused persons statement translated in Yoruba language was not put before the Court to see whether the translation from
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English Language to Yoruba language which is the language of the accused persons were correct, in view of this I hold the statement credited to each of the accused is not admissible and against the spirit of Section 28 of the Evidence Act.?
The learned Counsel for the Appellant stated that the Appellant was first taken to Sanyo Police Division from where he was transferred to the State Criminal Investigation Department. PW1 under Cross Examination testified at page 23 of the record of appeal that the accused persons were brought to SCID with wounds on their body.
It was submitted on behalf of the Appellant that it ought to have been obvious to the trial Judge that the statement being sought to be tendered was made at Sanyo Police Station and in view of the testimony of PW1 that the Appellant brought wounds from the said Sanyo Police Station, the conclusion that they were tortured at the station is obvious. So the statement ought not to have been admitted.
Reference was also made to the testimony of PW2 one Olusola Akinola who was a serving Police Officer at Sanyo Police Division at the material time.
?
The learned Counsel for the
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Appellant stated that PW2 wanted to put it another statement of the Appellant which was objected to on the ground that it was not voluntarily made.
It was submitted on behalf of the Appellant that the earlier ruling of the trial Judge on a statement which the Prosecution brought forward earlier and which the Court ruled that it was made contrary to the spirit of Section 28 of the Evidence Act, therefore that the trial Judge is precluded in law from conducting another trial within trial to determine admissibility of the Confessional Statement emanating from Sanyo Police Station.
He submitted that the 2nd trial within trial was uncalled for. He relied on the cases of ?BERLIET NIG. LTD. VS. KACHALLA (1995) 9 NWLR PART 420 PAGE 78.
– NIGERIAN ARMY VS. IYELA (2008) 18 NWLR PART 118 PAGE 115.
The learned Counsel for the Appellant also made reference to the contradictory testimony of how Appellant was arrested from the testimony of PW3 in the 2nd trial within trial and his testimony at the main trial. He went further that in one breath, the complainant was in the bush where he witnessed what happened but in another breath he was called by
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his brother that the boy he described to him had been arrested by the Police.
He submitted that the learned trial Judge ought to have rejected the testimony of PW3. He relied on the case of:-
-NWOKEARU VS. STATE (2010) 15 NWLR PART 1215 PAGE 1 AT 27 PARAGRAPH B.
– NIGERIAN ARMY VS. IYELA (SUPRA).
Learned Counsel for the Appellant finally urged that the Ruling of the learned trial Judge in the second trial within trial be set aside and reject the purported Confessional Statement.
The learned Counsel for the Respondent in his response stated that the two accused persons upon their arrest were taken to Sanyo Police Station, there, they made Confessional Statement. Thereafter they were transferred to SCID where they also made Confessional Statements. He stated that the investigation Police Officer at SCID was first called as PW1 and when the statement made at his station SCID was sought to be tendered, it was objected to and the first trial within trial was conducted after which the statement was not admitted.
?
The PW2 was called, this time to tender the Confessional Statement made at Sanyo Police Station, it was objected to and
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the second trial within trial was conducted.
He contended that a trial within trial is distinct from another trial within trial.
The learned Counsel for the Respondent submitted that the contention of learned Counsel for the Appellant that since there was evidence at the first trial within trial that the Appellant brought wounds from Sanyo (the first) Police Station and that it has establish torture cannot be true. He now referred to the testimony of PW1 on page 31 lines 1 to 4 which showed that the accused persons had the wounds before they were brought to Sanyo Police Station.
He therefore concluded that it was in order for the trial Court to hold trial within trial twice since Confessional Statements were tendered and objected to twice.
The question that comes to mind at this junction in the determination of this issue is:
– Could the Court use the evidence in an earlier trial within trial to decide the fate of another statement tendered after the Ruling? I do not think so.
In other to appreciate the issues involved, it would be necessary to look at the facts in the record of appeal.
In the first place, the two accused
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persons upon their arrest were taken to Sanyo Police Station. There, they made Confessional Statements. Thereafter they were transferred to the State CID where they also made Confessional Statements.
The Investigation Police Official of the SCID was called first as the PW1 and when the statement made at his station was sought to be tendered, it was objected to and the first trial within trial was conducted after which the statement was not admitted.
Then PW2 was called, this time the Confessional Statement made at Sanyo Police Station was sought to be tendered, it was objected to and second trial within trial was ordered. After the trial the statement was admitted. The contention of the learned Counsel for the Appellant is that the second trial within trial should not have been conducted in view of the evidence of the IPO of the SCID on wound injuries brought to that station (i.e. SCID).
?
It is trite that trial within trial is necessary when a Confessional Statement is objected to on grounds of duress, coercion, promise etc. which may be alleged when the statement is tendered. The onus is on the prosecution to prove that it was made freely and
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voluntarily. It is only when the Prosecution has proved this that the statement is admitted in evidence. See the following cases:-
– EMEKA VS THE STATE (2011) 9 SCM PAGE 39
– DANIEL MADJEMU VS THE STATE (2001) 6 SCM PAGE 16.
I am of the view that trial within trial is a mini trial within the con of the main trial to try to determine the veracity of the account of the accused person as to whether his statement to police was voluntarily made or not. See
– ADELARIN VS F.R.N (2010) 37 WRN Page 85
– JUA VS STATE (2008) ALL FWLR part 440 Page 781.
It is therefore clear that evidence adduced during trial within trial can only be used in the determination of the admissibility of the confessional statement concerned, it cannot be relied upon for the determination of any issue at the main trial.
Furthermore, a trial within trial is also different or distinct from another trial within trial where there are more than one retracted confessions made on different days and at different times or occasions, then their admissibility must be tested one after the other.
See ? JUA VS. STATE (SUPRA).
?The lower Court is
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therefore right in the procedure it adopted by subjecting the admissibility of the Confessional Statements of the Appellant made at Sanyo Police Station to another trial within trial rather than relying on the earlier trial within trial to determine the admissibility of another statement.
Concerning the issue of torture being complained about by learned Counsel for the Appellant, the record of appeal did not support the contention that the Appellant brought injuries from Sanyo Police Station. On Page 31 line 1 to 4 of the record of appeal, the PW1 testified thus:-
?Yes the accused person brought wound to Sanyo Nigeria Police Force. They must had (sic) wounded them before they were brought to Nigeria Police Force, Sanyo.?
A careful reading of the testimony set out above did not say that the injuries were inflicted on the Appellant at Sanyo Police Station. See the case of ? GAMBO VS. STATE (2011) ALL FWLR PART 602 PAGE 1609.
In the circumstance, this issue No. 2 is therefore resolved in favour of the Respondent and against the Appellant.
ISSUE NO. 3
?With or without the purported Exhibit 2 and 2A, can it be
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said that the Prosecution established the basic elements of the offences of Conspiracy to commit Armed Robbery and Armed Robbery beyond reasonable doubt. (Distilled from Grounds 3, 4, 7, 8, 9 and 10 of the Notice and grounds of appeal).”
The learned Counsel for the Appellant stated that the settled principle of law is that it is the duty of the Prosecution to prove the guilt of an accused i.e. Appellant in this case beyond reasonable doubt. He relied on the case of: – ALABI VS. STATE (1993) 7 NWLR PART 307 PAGE 511 PARAGRAPHS F-H.
It was submitted on behalf of the Appellant that for the Prosecution to succeed in proof of the offence of Armed Robbery, there ought to be proof beyond reasonable doubt of the following ingredients of the offence:-
(i). That there was a robbery or a series of robberies.
(ii). That each robbery was an Armed Robbery.
(iii). That the accused was one of those who took part in the Armed Robberies.
?
The learned Counsel for the Appellant submitted that apart from the Confessional Statement, which he stated not to have been received in open Court, no other piece of evidence linked the Appellant to the alleged robbery.
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He referred to the evidence of PW3 at the lower Court and submitted that a critical examination of the testimony of PW3 could not portray him as a witness whose testimony is credible to identify the Appellant.
He went further that PW3 claimed to live in the same village with the Appellant but ? he could not recollect his name.
– he did not lead Police to the house of the Appellant at the earliest opportunity. He relied on the case of:
– ABUDU VS. STATE (1985) 1 NWLR PART 1 PAGE 55.
It was contended that the motorcycle purchased by the Appellant strolled him into the hands of already suspecting mind of PW3, He relied on the following cases:-ADISA VS STATE (1991) 1 NWLR PART 168 PAGE 490
– BOZIN VS STATE (1985) 3 NWLR PART 8 PAGE 465 AT 469.
He argued further that if truly PW3 knew the Appellant so much as he claimed in his evidence in chief he ought to have remembered to put it in either Exhibit 10 or 11 that he lived in the same village with the Appellant.
?
It was also submitted on behalf of the Appellant that PW3 is a witness that ought not to be believed at all because PW3?s extra judicial statement was contrary to his testimony on Oath.
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Learned Counsel for the Appellant urged this Court to apply the inconsistency rule to the evidence of PW3 and expunge both the extra judicial statement and his testimony on Oath.
He relied on the following Cases:-
-UBANI VS. STATE (2003) 18 NWLR PART 851, PAGE 224 AT 245 PARAGRAPHS D-H.
– MAIYAKI VS. STATE (2008) 3 NWLR PART 1075 PAGE 429 AT 448 PARAGRAPHS B-D.
He also urged that this Court should hold that the Confessional Statement in this case is not reliable.
He relied on the case of:-
– OMOPUPA VS. STATE (2008) FWLR PART 445 PAGE 1648 AT 1684 PARAGRAPHS E-F.
The learned Counsel for the Respondent in is response submitted that to establish an offence of Conspiracy there must be agreement between two or more persons to do an illegal act or a legal act by illegal means. He relied on the case of ? OBIAKOR VS. THE STATE (2002) 10 NWLR PART 776 PAGE 617 AT 628 PARAGRAPHS C-E.
?
He referred to the statement made by the Appellant and the evidence of PW1, PW2 and PW3 and submitted that the trial Court was right to have convicted and sentenced the Appellant.
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On the offence of Armed Robbery it was submitted that the standard required is that of proof beyond reasonable doubt. He referred to the following cases:-OBIAKOR VS. STATE (SUPRA).
– KALU VS. STATE (1988) 4 NWLR PART 90 PAGE 503.
– UGBAKA VS. STATE (1994) 8 NWLR PART 354 PAGE 581.
He contended that the essential ingredients of the offence of Armed Robbery are:
(a). That there was a robbery or series of robberies.
(b). That each robbery was an Armed Robbery.
(c). That the accused person was one of those who took part in the armed robberies.
On the 1st ingredient the learned Counsel for the Respondent referred to the testimony of PW3 on pages 65 to 69 of the record where he stated as follows:-
?I am a miner, I remember 7/7/2004. On the 7/7/2004 at 4pm when I was going to the mining site, I slowed down at the area where there are pot holes. I put my car into gear one. One boy came from the bush, he covered his face. He removed what he used to cover his face but tried to cover his face again but I saw his face. The 2nd person came out with gun by the left side, first person came by the right side. The person
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from the left covered his face. The one that came from the left side of the bush is taller than the 1st (sic) told the 2nd person to move and collect the money inside the car. I heard ?Owo? because he spoke in Yoruba Language. I am Igbo man, the person with matchet hit my bonnet with the matchet in his hand and the one with gun stood with me facing me with the gun. At that time I had N230,000.00 cash with me in the car. I also have with me a scale worth about N16,000.00 and Calculator of about N150.00. I gave it to the man with the matchet, I gave out bag containing N230,000.00, scale ? N16,000.00, calculator ? N150,00 and stone worth N23,000.00. One with gun asked me to reverse back, when I did, I ran for my dear life. Both accused persons entered the bush. I complained to the villagers around what happened to me. I was going to the Police to report, I met the Police at the road block. I told them what happened. About five (in number) Police followed me with their vehicle.?
?
The learned Counsel for the Respondent submitted that the evidence of PW3 was corroborated by Exhibit 10 before the lower Court, and also the evidence of PW1 and PW2.
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On the second ingredient, that the robbery was an Armed Robbery. Learned Counsel referred to the evidence of PW1, PW2 and PW3 together with Exhibits 1,2,8,9,10 and 11, which remained unchallenged and un-contradicted.
On the third ingredient that the accused was one of those who took part in the Armed Robbery, learned Counsel referred to Exhibits 1 and 2, the evidence of the Prosecution witnesses and also Exhibits 9 and 10.
Learned Counsel also referred to the testimony of PW3 that he recognized the Appellant and the other accused person during the incident.
He relied on the following cases:- NWACHUKWU VS. STATE (2004) 17 NWLR PART 902 PAGE 262.
-ADIO VS STATE (1986) 2 NWLR PART 24 PAGE 592.
Learned Counsel therefore urged that the Judgment of the lower Court be affirmed and to dismiss the appeal.
I held earlier in this Judgment that if a statement of an accused is not admitted in evidence it is of no value.
Exhibits 2 and 2A are the Confessional Statements of the accused person i.e. the Appellant. It was initially marked as IDX3-4 during the course of trial within trial but not eventually received and
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labeled at the main trial. The learned trial Judge upon discovery of the mistake decided to mark the statements in chambers as Exhibits 2 and 2A while writing Judgment. But I am of the view that it is not proper in law and equity to use such a statement not received and labeled at the main trial to convict the Appellant to death at the conclusion of the main trial. Exhibits 2 and 2A are therefore of no value in this case.
The question under this issue is that with or without Exhibits 2 and 2A can it be said that the Prosecution established the basic elements of the offences of Conspiracy to commit Armed Robbery and Armed Robbery beyond reasonable doubt.
It is settled law that in criminal Prosecution the standard of proof required is that of proof beyond reasonable doubt.
See ?SECTION 135(1) OF THE EVIDENCE ACT 2011.
It is also trite that wherever an accused is charged with the offence of Armed Robbery, the burden of proof is on the Prosecution to prove the following elements of the offence beyond reasonable doubt.
(a). That there was a robbery or series of robberies.
(b). That the said robbery was Armed Robbery.
(c). That the Appellant was one of those who took part in the robbery.
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See the following cases:-
-ALABI VS. STATE (SUPRA).
– ATTAH VS. STATE (2010) 10 NWLR PART 1201 PAGE 190 AT 224 PARAGRAPHS B-F.
– BOZIN VS. STATE (SUPRA)
In order to establish the ingredients of the offence of Conspiracy to commit Armed Robbery and Armed Robbery, PW1 testified among others as follows:
one boy came from the bush, he covered his face. He removed what he used to cover his face but tried to cover again. I saw his face. The second person came out with gun by the left side, the first person came by the right side. The person from the left covered his face.
?I told the Police not to arrest the people at the village because I saw the people that robbed me and I knew them well I instructed to let the Police know anytime I see the accused persons. I described the two boys to my junior living at the mining site. On 14/7/04 my brother called me and said he saw the boy I described to him with a new machine and the Police at the road block arrested them. On coming to the road block the two boys in the dock who saw me ran away
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and leaved (sic) their machine. The road block is at Ayegun.
yes, I saw the face of the accused with the matchet being the armed robber. The accused is in court now. He recognized 1st accused as the person with matchet that the 2nd came out with gun. I know them before. I heard his voice. I am living in their village, hence I have met them before the robbery incident
(See pages 65 to 67 of the record of Appeal)
Issues arising from the testimony of PW3 set out above are that:
– PW3 who claimed to live in the same village with the Appellant could not recollect his name.
– he did not lead police to the house of the Appellant at the earliest opportunity
– PW3 did not lead villagers to the house of the Appellant at the earliest opportunity.
– He waited until the Appellant bought motorcycle before he was arrested.
?
After carefully examining the testimony of PW3 set out above, I am of the view that the testimony is not credible because he ought to have reported the incident and make statement
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to police on the day of the incident. He should also have led police to the house of the Appellant if truly he knew him.
The testimony of PW3 set out earlier was given on 11/3/2008.
But prior to the above date/ on 6/12/2006 PW3 testified at the lower Court (see page 35 of the record of appeal lines 20?28) as follows:-
?I know the two accused persons. I was not around when the accused persons were arrested. I was in the bush and when I saw the accused persons arrested, I raised my voice and went to the scene. Accused persons wanted to run but people surrounded them. Police put the Accused persons into the vehicle. One of the policemen drove the motorcycle. I did not beat the accused persons when the accused persons wanted to run away both of them fell down.?
The testimony of the PW3 above was that he was in the bush at the time the Appellant was arrested. He said he raised his voice. But contrary to the testimony of 6/12/2006. On 11/3/2008 he testified that it was his junior brother who called him and told him that he had seen the Appellant and that he had been arrested by police.
?
As I said earlier the PW3 is not a credible witness.
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The police officers who testified earlier as PW1 and PW2 relied on what PW3 told them. There was no independent investigation by the police officers i.e. PW1 and PW2. Therefore the evidenced led by PW1 and PW2 are hearsay evidence which is not admissible. See ? MAIYAKI VS STATE (SUPRA).
A careful review of the testimony of PW3 showed that it lacked credibility, I am of the view that the Appellant was arrested based upon suspicion.
The evidence of PW3 fell short of what is required to establish the basic elements of the offences of conspiracy to commit Armed Robbery and Armed Robbery. See – ABIEKE VS. STATE (1975) SC 9-11 PAGE 61 AT 65.
Consequent upon the foregoing this issue No 3 is hereby resolved in favour of the Appellant and against the Respondent.
ISSUE NO. 4
?Whether the release of certain exhibits on bond and eventual sale by PW3 was right in law and equity. (Distilled from Grounds 5 and 6).”
The learned Counsel for the Appellant submitted that the lower Court took a casual position on the release of the following Exhibits ?
(1). Jincheng Motorcycles.
(2). Two Crown Acer Tape Recorder
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(3). Some quantity of precious stones ? to PW3 who eventually sold same.
He contended that Exhibit 2(b) was said to have been written on 11th February 2004 but that it appeared it was a mistake as it was signed on 11th February 2005. He stated that as at the time PW3 got the items the allegation against the Appellant was that they robbed PW3 of (N230,000.00) Two Hundred and Thirty Thousand Naira only and used same to purchase motorcycles.
He submitted that until same is proved beyond reasonable doubt it still remains a mere allegation. He argued further that it is not every error of trial Court that will lead to the reversal of its decision. And for such error to lead to a reversal it must be shown that the party complaining has been adversely affected. He relied on the case of:-
– JESSICA TRADING CO. LTD VS. BENDEL INSURANCE CO LTD (1996) 10 NWLR PART 476 PAGE 17.
It was also submitted that the trial of the Appellant was based upon suspicion which ought not to ground a conviction. He relied on the following cases:-
-ABIEKE VS. THE STATE (SUPRA).
-BALOGUN VS. A. G. FEDERATION (1994)
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5 NWLR PART 345 PAGE 442.
– ABIODUN YINUSA VS. THE STATE UNREPORTED DECISION OF THIS COURT IN CA/I/60C/2011.
-ADELE VS. STATE (1995) 2 NWLR PART 337 PAGE 269 AT 293 PARAGRAPHS E-F.
Learned Counsel for the Appellant urged that the conviction and sentence of the Appellant be set aside and to discharge and acquit him.
In his response to the submission of learned Counsel for the Appellant, the learned Counsel for the Respondent stated that the release of the Exhibits was wrong but that the office of the Attorney General of Oyo State could not be blamed. He went further that the order of the Magistrate Court for the release of the Exhibits was dated 1/12/2004 while the office of Attorney General of Oyo State filed an information for a formal charge of the accused persons on 23/2/2006.
He submitted that he order of release was void since same was made by a Court lacking jurisdiction, however since the conviction of the Appellant and his case-mate was not based on the exhibits released the Appellant did not suffer any injustice by reason of non-availability of the Exhibits in Court. He relied on the case of:-
– IGBI VS. STATE
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(2000) 75 LRCN PAGE 303.
In this appeal under consideration there is no doubt that the Exhibits in the case were released by the Magistrates Court before the case file was sent to the office of the learned Attorney General of Oyo State.
This is very unfortunate because the trial Magistrate who released those exhibits lacked the jurisdiction to try robbery cases. The proper Court to handle such an application should be the High Court of Justice.
Furthermore, in situations where there are Exhibits as in this case, the lower Court is not bound as a matter of law to make a finding as to the probative value of all the Exhibits before a conviction can be secured. Although it will not be decorous for Exhibits to have been sold before a Court could make further consideration or evaluation towards the end of the trial. If the Exhibits were not sold it would have given the parties the opportunity to determine who actually owns them.
My conclusion on this issue is that it is not right for the Magistrate Court to release the Exhibits to PW3 who eventually sold them.
?
This issue No. 4 is therefore resolved in favour of the Appellant and against the
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Respondent.
Before I conclude on this appeal, it is on record that the learned Counsel for the Appellant conceded that no issue was formulated from Ground 13 of the Notice and Grounds of Appeal. In the circumstance the said ground 13 of the Notice and grounds of appeal is hereby struck out.
In the result, with the resolution of issue numbers 1, 3 and 4 in favour of the Appellant and issue No. 2 in favour of the Respondent, this appeal succeeds in part.
The above notwithstanding the Judgment of the lower Court in CHARGE NO:- I/6C/2006 – BETWEEN: THE STATE VS. (1). ABIODUN YINUSA, (2). WASIU YINUSA, delivered on the 4th day of January 2011 is hereby set aside as far as the Appellant (i.e. Wasiu Yinusa) is concerned.
The Appellant is discharged and acquitted.
Appeal allowed.
NONYEREM OKORONKWO J.C.A.: In the lead Judgment of my brother Jimi Olukayode Bada, JCA at page 6-7 the following passage was poignant.
The prosecution therefore put the statements of the Appellant before the Court and same were temporarily marked as IDX3-4, while statements of the Appellants case-mate were marked as
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Exhibits IDXI-2. And at the conclusion of the Trial within Trial, the learned trial Judge stated thus:
“In my view the statement is direct, positive and equivocal and not taken by duress, there was nothing on the face of Exhibits IDXI-2 sought to be tendered in this case to indicate that the two accused persons in this case were induced, threatened or even forced to make IDX1-2. It is therefore part of the evidence before the Court.
In the final analysis and having regard to the above discourse, I hold that the temporary IDXI-2 is received in evidence and marked Exhibits 1-2, I so hold.”
The Learned Counsel for the Appellant pointed out that the trial Court only received the temporary IDXI-2 as Exhibits 1-2. It follows therefore that IDX3-4 which were statements of the Appellant were never received in evidence by the trial Court. The two statements therefore remained temporary statements.
The Learned counsel for the Appellant now referred to page 103 of the record of appeal where the trial Judge in the comfort of his chambers received and labeled IDX3-4 as Exhibits 2 and 2A
?The Learned counsel for the Appellant therefore submitted
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that Exhibits 2 and 2A were never received in evidence and as such cannot form the basis of conviction of the Appellant.
The Learned counsel for the Respondent either deliberately or inadvertently failed to respond to the issue under consideration i.e ISSUE I which was based upon ground 12 of the Notice and ground of appeal.
In the circumstance I am of the view that a Respondent who files a brief of argument and ignores some grounds of appeal and like in this case, ground 12 of the Notice and grounds of appeal upon which Appellants Issue No.1 is based, is deemed to have adopted the said Issue No. I
The Legal effect of failure of the Respondent to react to the Appellants Issue No. 1 is that the Respondent is deemed to have conceded and admitted the Issue. See the following cases – NITEL LTD VS. SANI (2011) LPELR ?4604 (CA) PAGE 3.
-AGBAI VS. OKOGBUE (1991) 7 NWLR part 204 PAGE 391 AT 403.
-OSSAI VS. WAKWAH & OTHERS (2006) LPELR 2813 Sc PAGE 11.
Let me now go back to the substance of the issue under consideration in this appeal. The Appellants statement was received in evidence during trial within trial as IDX3-4. The
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attempt made by the learned trial Judge to receive and label IDX3-4 as Exhibits 2 and 2A is not acceptable. This is because a document not received in open Court cannot be received in chambers since at that point the Appellant had no opportunity to cross examine the PW2 who wanted to put in the statement.
It is therefore obvious that having apparently omitted to receive IDX3-4 in open Court the learned trial Judge again apparently thinking it was a mere omission proceeded to admit IDX3-4 as Exhibit 2 and 2A ?in the comfort of his chambers?.
As the lead judgment of my lord Bada JCA, has demonstrated. It was in violation of the fair hearing of the appellant and such violation of fair hearing Provisions and norms vitiate a trial. The conduct of the trial Judge in continuing proceedings in Chambers all alone to include materials he thought he omitted was what can be described as cloistered justice ? done in private. The Law is against such practice Apparently such vitiating error may taint and affect the entire trial.
?
For the above reason. I agree with the lead judgment and adopt the orders therein.
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ABUBAKAR MAHMUD TALBA, J.C.A.: I have had the privilege of reading in draft the Judgment just delivered by my learned brother Jimi Olukayode Bada JCA, my Lord has sufficiently dealt with all the issues for determination in this appeal. Issues No: 1, 3 and 4 were resolved in favour of the Appellant while issue No: 2 is resolved in favour of the Respondent. In the end this appeal succeed in part.
?
I abide by the consequential order In the lead Judgment)the Appellant is discharged and acquitted.
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Appearances:
Mr. M. O Folorunso with him, I. W. Omoneukanrin, Esq. and A. M. Abass, Esq.For Appellant(s)
Mr. A. W. Gbadegeshin (Solicitor General and Permanent Secretary, Oyo State Ministry of Justice) with him, Kayode Babalola, Esq. (Assistant Director-Public Prosecutions Department, Ministry of Justice Oyo State)For Respondent(s)
Appearances
Mr. M. O Folorunso with him, I. W. Omoneukanrin, Esq. and A. M. Abass, Esq.For Appellant
AND
Mr. A. W. Gbadegeshin (Solicitor General and Permanent Secretary, Oyo State Ministry of Justice) with him, Kayode Babalola, Esq. (Assistant Director-Public Prosecutions Department, Ministry of Justice Oyo State)For Respondent