YINKA ADESHINA v. THE PEOPLE OF LAGOS STATE (2019)

YINKA ADESHINA v. THE PEOPLE OF LAGOS STATE

(2019)LCN/13006(CA)

In The Court of Appeal of Nigeria

On Friday, the 29th day of March, 2019

CA/L/797C/2016

RATIO

CRIMINAL LAW AND PROCEDURE: THE DEFENSE IS ENTITLES TO SEE ANY WRITTEN STATEMENT IN THE POSSESSION OF THE PROSECUTION
The Supreme Court, in Akpabio v. The State (1994) 7-8 SCNJ (pt. III) 429 at 454, per Iguh, JSC., held that:
“It seems to me well established that in a criminal trial, the defence is entitled to see any written statement in the possession of the prosecution which was made by a witness called by the prosecution and which relates to any matter on which the witness had given evidence, and to cross – examine the witness on it and tender it solely to impeach his credit.”PER TOM SHAIBU YAKUBU, J.C.A.

COURTS: COURTS MUST MAKE DECISIONS STRICTLY BASED ON EVIDENCE PLACED BEFORE IT

It is trite that the decision of a Court of law on any disputed point or fact must be on evidence legally before it. Accordingly, a fact neither in the body of the legal evidence nor forming part of the legally admitted evidence cannot be used to contradict any evidence validly before the Court. See THE STATE v. OGBUBUNJO (2001) FWLR (pt.37) 1097 at 1115 – 1116; (2001) 2 NWLR (pt.698) 576 at 598 – 599.PER TOM SHAIBU YAKUBU, J.C.A.

THE COURT OF LAW IS NOT PERMITTED TO ACT ON FACTS EXTRANEOUS TO THE PROCEEDINGS

It is not permissible for Courts of law to act on facts extraneous to the proceedings, which though may be relevant.
His Lordship, further continued on the same principle at pp.13-20, thus:
A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant matters in question in the suit or proceeding in which he is cross-examined without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.”
It is only by this procedure that the credibility of a witness whose previous statement in writing, which forms part of the proofs of evidence, contradicts his testimony in Court can be impeached. See SAMUEL THEOPHILUS v. THE STATE (1996) 1 NWLR (pt.423) 139.PER TOM SHAIBU YAKUBU, J.C.A.

JUSTICES:

TOM SHAIBU YAKUBU Justice of The Court of Appeal of Nigeria

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO Justice of The Court of Appeal of Nigeria

JAMILU YAMMAMA TUKUR Justice of The Court of Appeal of Nigeria

Between

YINKA ADESHINA – Appellant(s)

AND

THE PEOPLE OF LAGOS STATE – Respondent(s)

TOM SHAIBU YAKUBU, J.C.A. (Delivering the Leading Judgment): The appellant along with three other accused persons were arraigned and prosecuted for the offences of Conspiracy to commit Robbery contrary to Section 403(A) of the Criminal Code Law Cap. C17 Vol. 2 Laws of Lagos State, 2003 and also Armed Robbery contrary to Section 402(2) (A) of the Criminal Code Law Cap. C17 Vol. 2 Laws of Lagos State, 2003 at the Lagos State High Court of Justice, holden at Ikeja, Lagos. The four accused persons were convicted for the offence of Conspiracy to commit Robbery and on the second count for a lesser offence of Robbery. They were each sentenced to 21 years imprisonment for both offences and for the said sentences to run concurrently. The appellant’s appeal is against the ruling rendered by the learned trial judge on 27th October, 2015 and the judgment rendered by the same judge on 28th January, 2016. Hence there are two separate notices of appeal in this matter. However, with the leave of this Court, both the interlocutory and the substantive appeals were argued together. This judgment, is with respect to the interlocutory appeal vide the

Notice of Appeal filed on 27th October, 2015.

The appellant in order to activate the prosecution of the appeal, filed the Appellant’s brief of argument, on 2nd May, 2018. On its part, the respondent’s brief of argument which was filed on 30th May, 2018 was deemed filed by this Court on 4th December, 2018. The appellant’s reply brief filed on 7th November, 2018 was also deemed filed on 4th December, 2018.

In the appellant’s brief of argument, prepared by Dr. Olawoyin, SAN., Wole Omisade, Esq., and Mrs. Oluwaseyi Omotaje, a sole issue was nominated for the resolution of the interlocutory appeal filed on 27th October, 2015, to wit:
Whether or not the lower Court ought to have considered the earlier proceedings of 6 December, 2011 and 9 February, 2012 before Justice Abiru (as he then was) which forms part of the Court Records for the purpose of discrediting PW 1 when writing/delivering its judgment.

Akinkunmi Idowu, Esq., (Director) and Adebayo Haroun, Esq., (A/D) – who settled the respondent’s brief of argument, reframed the sole issue nominated by the appellant’s counsel, thus:
Whether the Learned Trial Judge was right to have

declined to consider the proceedings before Hon. Justice Abiru (then of the High Court of Lagos State) for the purpose of discrediting PW1 in the course of writing judgment.

In my consideration of this appeal, I shall be guided by the sole issue nominated by the appellant’s counsel for its comprehensiveness. The appellant’s contention is to the effect that since the PW 1 had earlier given evidence in this case on 6 December, 2011 and 9 February, 2012 before Justice Abiru, J., as he then was, the learned trial judge who started the case de novo after the former judge of the Lagos State High Court, who had been elevated to the Court of Appeal, ought to consider the earlier proceedings of 6 December, 2011 and 9 February, 2012 when he wrote his judgment.

The appellant’s learned counsel submitted that the reference to the PW 1’s evidence in the earlier proceedings was not intended to prove or disprove any relevant and material fact, but to discredit PW 1’s evidence at the later proceedings and that if any discrepancy is established in the two testimonies of PW 1, in question, no weight ought to be placed on his evidence, pursuant to

Sections 232 and 233 (c) of the Evidence Act, 2011. He further submitted to the effect that the learned trial judge in his ruling whereof he said he would not review the earlier proceedings before Abiru, J., was in error for relying on Section 34(1) of the Evidence Ordinance, Section 46(1) of the Evidence Act, 2011 and the decision of the Supreme Court in Alade v. Aborishade (1960) 1 NSCC 111 @ 115, per Abbot, FJ. The appellant’s counsel relied on the decisions of this Court in Ajibo v. State (2013) LPELR- 21359 ( CA ); Egboma v. State (2013) LPELR-21358 ( CA) and the Supreme Court decisions in Amadi v. A.G. Imo State (2017) LPELR- 42013 (SC); Alakija & Ors v. Abdulai (1998) 5 S.C. 1 – all to the effect that the evidence given in an earlier proceedings by a witness is not relevant in a later trial, except for the purpose of discrediting such a witness in cross examination and it is for that purpose only.

Arguing per contra, the respondent’s learned counsel, submitted to the effect that when a matter starts de novo before a Court, it means that such a matter starts afresh. That is, the matter starts all over again. Therefore, according to him, the

learned trial judge was on a sound legal footing when he declined to review the PW 1’s evidence which he gave in the earlier proceedings before Abiru, J. He further submitted that any evidence given in a previous proceeding is inadmissible in a later proceedings, except for the purpose of cross – examination where the witness would be confronted with the piece of his earlier evidence, in order to test his credibility. He relied on Francis Omosaye v. The State (2014) LPELR- 22059 (SC); Cletus Okwuchukwu Iche v. The State (2013) LPELR-22035 (CA) @ 48-49; Cyracus Ezeama v. The State (2014) LPELR- 22504 (CA).

Resolution:
The trial of the appellant had started before Abiru, J., as he then was, at the Court below. The PW 1 had testified in the case on 6 December, 2011 and 9 February, 2012. Thereafter, Abiru, J., was elevated to the Court of Appeal. Hence the case was re-assigned to S.S. Ogunsanya, J., (hereinafter referred to as the learned trial judge). The case started de novo before the latter on 24 February, 2014. The prosecution’s case was opened on 7 April, 2014 with the testimonies of PW 1 and PW 2. Thereafter, the appellant testified in his

defence for himself on 18 November, 2014 and closed his case. The learned trial judge ordered the parties to file and exchange their final written addresses which were to be adopted by learned counsel to the respective parties on 17 December, 2014. In the appellant’s final written address, he made some references to the inconsistency in the testimony of the PW1 which he gave in the earlier proceedings before Abiru, J., vis a vis his testimony before the learned trial judge on 7 April, 2014. His Lordship then wondered if he could review the PW 1’s evidence in the earlier proceedings. He therefore directed learned counsel for the parties to file and exchange written addresses on the new development in the case. The directive was complied with by learned counsel to the parties. In his ruling, he opined that he had no power to review the PW 1’s evidence given in the earlier proceedings. That was what gave birth to this interlocutory appeal. Now, Sections 231, 232 and 233(c) of the Evidence Act, 2011 which are relevant to the resolution of this matter, say:
“231. If a witness upon cross-examination as to a former statement made by him relative to the

subject matter of the trial which is inconsistent with his present testimony, does not distinctively admit that he has made such statement, proof may be given that he did in fact make it; but before such proof can be given the circumstances of the supposed statement sufficient to designate the particular occasion must be mentioned to the witness, and he must be asked whether or not he has made such statement.”
“232. A witness may be cross – examined as to previous statements made by him in writing or reduced into writing and relative to matters in question in the suit or proceedings in which he is cross-examined without such writing being shown to him or being proved, but if it is intended to contradict such witness by the writing, his attention must, before such writing can be proved or such contradictory proof given, be called to those parts of the writing which are to be used for the purpose of contradicting him;
Provided always that it shall be competent for the Court at any time during the trial to require the production of the writing for its inspection, and the Court may thereupon make use of it for the purpose of the trial, as it deems fit.”

Furthermore, Section 233(c) of the same Evidence Act provides, thus:
“233 (C) The credit of a witness may be impeached in the following ways by any party other than the party calling him or with the consent of the Court by the party who calls him-
(a)——–
(b)———-
(c) by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted.”
The learned appellant’s counsel, rightly submitted to the effect that by virtue of Sections 232 and 233(c) of the Evidence Act, 2011, reproduced above, the earlier evidence proffered by the PW 1 could be used for the purpose of discrediting the PW1’s evidence at the later proceedings before the learned trial judge. This Court’s decisions inAjibo v. State, supra and Egboma v. State, supra, are quite apposite. And as the learned appellant’s counsel submitted at paragraph 4.12 of the appellant’s brief of argument, the Supreme Court’s decision in Alade v. Aborishade, supra, at page 115 thereof, per Abbot, FJ., it was clearly stated that:
“—— the evidence given in an earlier case by persons who testify in a later case may be used for

cross-examination as to credit but is no higher value than that.”
Now, against the backdrop of the foregoing, what did the appellant do in order to take benefit of the law? OR put differently, what was in the mind of the appellant’s learned counsel when he submitted in his Final written address at the Court below to the effect that there was the need for the learned trial judge to peruse the earlier evidence adduced by the PW 1 which he (the appellant’s learned counsel) must have known was not in tandem with the PW1’s evidence at the later trial? And if the appellant’s learned counsel knew that the previous pieces of evidence and the later pieces of evidence adduced in the case by the PW1, were contradictory and he needed to impeach or discredit the PW 1, what did he do at that stage? Why did he wait till the end of the trial and raised the issue lately in his Final written address? The principle of the law relating to the right of an accused person to activate the provisions of Sections 231, 232 and 233(c) of the Evidence Act, 2011 in order to discredit a witness for the prosecution whose later evidence contradicts a former statement either made in an

earlier proceedings or in an extra judicial statement to the Police have severally been espoused by this Court and the Supreme Court. I recall what I said on the principle in Eyonaowa v. Commissioner of Police (2014) LPELR- 22339 (CA) at pp. 42-44 of the report, thus:
I am mindful of the submissions of appellant’s learned counsel, touching on some alleged contradictions and/or inconsistencies in the extra-judicial statements made by the PW1 to the police and her evidence at the trial. However, as rightly contended by the learned Deputy Director, for the respondent, the said extra-judicial statements, made by the PW1 were not admitted into evidence as exhibits.
Learned counsel for the appellant, at the trial Court, had ample opportunity to have taken advantage of the law and impeached the evidence of the PW1 through cross-examination. Perhaps he was ignorant of Section 199 of the Evidence Act, Cap. 112 Laws of the Federation of Nigeria, 1990 (which was applicable at the time of the trial at the Court below), with respect to previous statements made by a witness in relation to an offence to which he is testifying vis a vis his evidence

in Court. The said Section 199 of the Evidence Act, Cap. 112 of 1990 says:
199. A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question in the suit or proceeding in which he is cross-examined without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.
Cf: Section 231 of the Evidence Act. No. 18 of 2011.
Therefore, where the defence discovers that there are inconsistencies in the evidence in open Court of a witness for the prosecution, is at variance with an extra judicial statement earlier made by that witness to the police in the course of the latter’s investigation, on the case, the defence would then call the attention of the witness to those parts of the earlier statement which contradict the evidence in Court. This is done under cross-examination of the witness by the defence and where the witness has been demonstratingly shown to be

inconsistent or contradictory in the earlier statement and his piece of evidence in Court, learned counsel to the defence, could then apply to tender in evidence, the earlier extra-judicial statement of the witness, for the Court to see the inconsistencies or contradictions between the evidence proffered in Court and his extra-judicial statement made during the investigation of the case. Olayinka V. The State (2007) All FWLR (pt. 373) 163; (2007) 9 NWLR (pt. 1040) 516; Ozaki V. The State (1990) 1 NWLR (pt.124) 92.
The apex Court more recently, re-echoed the same principle in Ajayi V. The State (2014) All FWLR (pt. 711) 1457 at 1478, per Akaahs, JSC, thus:
None of the prosecution witnesses was confronted with the fact that the evidence they gave contradicted the statements they made to the Police. If such suggestions had been put to the witnesses under cross- examination which they denied, learned counsel could then apply either to tender the statements or invite the trial judge to order the production of the case diary for his inspection to enable him ascertain if there are discrepancies between the evidence and the statements made

during investigation. In Gaji v. The State (1975) 1 All NLR (Pt. 1) 266, (1975) 9 NSCC 294, (1975) 5 SC 61 the defence applied for the production of the statements made to the police by prosecution witnesses but the applications were opposed by the prosecution contending that no foundation was laid for the compulsory production of those statements. The learned trial judge refused the applications because Section 122 of the Criminal Procedure Code prohibits the production but he did not deal with the objections as to the absence of foundation. On appeal, this Court held that the trial Court has a discretionary power to order the production of documents including such statement, if such production is necessary in the interest of justice. As I have observed, the submission of learned counsel for the appellant was made without any basis since no statements of the witness were ever produced by counsel in cross-examination to contradict the witnesses. The submissions of counsel in the brief can never take the place of evidence.
To my mind, the submission of the learned appellant’s counsel touching on the alleged inconsistencies and/or contradictions in

the evidence of the PW1 at the trial vis a vis her extra-judicial statements to the Police, is tantamount to crying wolf after the head had been cut off. Indeed those submissions go to no issue and they are consequently discountenanced by me.
The Supreme Court, in Akpabio v. The State (1994) 7-8 SCNJ (pt. III) 429 at 454, per Iguh, JSC., held that:
“It seems to me well established that in a criminal trial, the defence is entitled to see any written statement in the possession of the prosecution which was made by a witness called by the prosecution and which relates to any matter on which the witness had given evidence, and to cross – examine the witness on it and tender it solely to impeach his credit.”
Furthermore, the Supreme Court, more recently in Amadi v. Attorney General, Imo State (2017) LPELR- 42013 @ pp. 9-11 thereof, per Eko, JSC., succinctly reiterated the same principle, inter alia:
“Appellant’s Learned counsel submits that the extra-judicial statement of the PW.1 made on 3rd May, 1998 does discredit his testimony particularly that at the earliest opportunity the PW.1 failed or refused to mention the names of his

assailants. He, however, concedes that this previous statement of the PW.1 is not in evidence. lf the Appellant had desired to impeach the credit of PW.1 with the previous statement he would have followed the procedure and put in evidence the previous statement in writing. He must, under the Evidence Act, Section 199 of the 1990 (Now Section 232 of the Evidence Act 2011), draw the attention of the witness to his previous statement in writing and thereafter tender it in evidence for purposes of contradicting the witness. The previous statement in writing made by the PW.1 on 3rd May, 1998 is not in evidence. The Appellant, therefore, cannot smuggle the contents of that statement by oral evidence. The Court cannot also speculate on the content of a document not before it. The proofs of evidence, like in pleadings in civil proceeding, are themselves not evidence. The averments therein must be proved.
Appellant’s counsel, trying to wriggle out of the mess, submits on authority of AGBAREH v. NIMRA (2008) 2 NWLR (pt.1071) 308 at 411 – 412 and AGBO v. THE STATE (2006) ALL FWLR (pt.309) 1380 at 1409-410, that “a Court is entitled to look at a document or

documents in its file including the record of appeal before the Court”. This principle does not entitle the Court to descend into the arena and scoop for vital evidence that would discredit or impugn the credit of a material witness for one party. Section 36(1) of the Constitution, 1999, as amended, enjoins every Court of law to be independent and impartial. On this note, it is my firm view that the failure of the Appellant to put in evidence the written statement of the PW.1 dated 3rd May, 1998 is fatal to their contention now that the said statement has the effect of discrediting, and had in fact discredited the PW.1. The case of UDO EBRE v. THE STATE (2001) 6 SC 1 at 10, cited by the Appellant’s counsel is of no moment. It does not advance nor support their present stance. In the UDO EBRE case (supra) the extra-judicial statement of the PW.2, which discredited her evidence, was before the trial Court and in the admitted evidence. It is trite that the decision of a Court of law on any disputed point or fact must be on evidence legally before it. Accordingly, a fact neither in the body of the legal evidence nor forming part of the legally admitted evidence

cannot be used to contradict any evidence validly before the Court. See THE STATE v. OGBUBUNJO (2001) FWLR (pt.37) 1097 at 1115 – 1116; (2001) 2 NWLR (pt.698) 576 at 598 – 599. It is not permissible for Courts of law to act on facts extraneous to the proceedings, which though may be relevant.
His Lordship, further continued on the same principle at pp.13-20, thus:
A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant matters in question in the suit or proceeding in which he is cross-examined without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.”
It is only by this procedure that the credibility of a witness whose previous statement in writing, which forms part of the proofs of evidence, contradicts his testimony in Court can be impeached. See SAMUEL THEOPHILUS v. THE STATE (1996) 1 NWLR (pt.423) 139. A Court of law, not being a Don Quixote, cannot in the course of

doing justice, go all out on its own to scoop from the proofs of evidence, facts which discredit a witness called by a party. The proofs of evidence are not themselves pieces of judicial or legal evidence on which the Court of law acts on. The proofs of evidence contain the statements or abridged statements made extra judicially to the police or the investigator by the complainant, witnesses and/or the accused person which prima facie sustain the charge or the allegation against the accused person. For purposes of audi alteram partem, proofs of evidence give the accused person notice of the case he is going to meet at the trial. See: S.T. HON: THE LAW OF EVIDENCE IN NIGERIA and also the Court of Appeal adoption of the definition inIBEKWE v. FRN (2004) ALL FWLR (pt.213) 1780: GODWIN PIUS v. THE STATE (2012) LPELR- 9304 CA.
The proofs of evidence, contrary to the submission of Appellant’s Learned counsel, are not themselves judicial or legal evidence. When any portion of the proofs or the previous statement of a witness is tendered in evidence pursuant to Section 209 of the Evidence Act, 2004 (in pari material) with Section 232 of the 2011 Evidence

Act, the purpose is merely to contradict or impeach the credibility of the witness being cross-examined. In any case, the issue being over flogged here by the Appellant’s Learned counsel is one of the credibility of the PW.1. This Court has stated in UDOFIA v. DPP – SC. 64/1984 of 7th December, 1984 (see Digest of Supreme Court Cases Vol. 10 Pp. 566-567) that issues of credibility should be left to the Judge who saw, heard and believed the witness and that generally an appellate Court is bound by the findings of the trial Court especially when the findings relate to credibility of witnesses. The flaw in the stance of the Appellants Learned counsel before us is the fact that the previous statement of the PW.1, in writing dated 3rd May, 1998 which he relies on to make these submissions on the credibility of the PW.1 vis a vis his oral evidence in Court, is not any piece of evidence in law that the Court can act on.”
I do not think that I should any longer flog a dead horse on this matter. From all the foregoings, it is as clear as crystal that although the appellant’s learned counsel knew the law with respect to the provisions of

Sections 232 and 233(c) of the Evidence Act, 2011 which could have been appropriately activated against the PW1’s previous and later pieces of evidence on this matter, at the trial when he was cross-examining him at the later proceedings, freaked and lost that opportunity. It was too late in the day when he raised the issue in his Final written address, at the end of the trial, that is, after the appellant had closed his defence. It is tantamount to bolting the stable after the horses had escaped. In the circumstances, the learned trial judge was not entitled to scrounge for the PW1’s evidence in the previous proceedings in order for the PW 1 to be discredited. That was not his Lordship’s duty but of the learned appellant’s counsel, which he failed to do, as analyzed earlier in this judgment. I say no more, than to conclude that the sole issue in this appeal, is resolved against the appellant.

In effect, the ruling delivered by S. S. Ogunsanya, J., at the High Court of Lagos State, Ikeja Division, in re – Charge No: ID/61C/2011, on 27th October, 2015 is hereby affirmed.

ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I have had the

advantage of reading in draft the judgment delivered by my learned brother, TOM SHAIBU YAKUBU, JCA in this appeal, he has covered the field and I have nothing more to add.

Therefore I agree that the appeal lacks merit, it is hereby dismissed. The judgment rendered by the trial Court is hereby affirmed.

JAMILU YAMMAMA TUKUR, J.C.A.: My learned brother TOM SHAIBU YAKUBU JCA, afforded me the opportunity of reading before today a draft copy of the lead judgment just delivered.
I adopt the judgment as mine with nothing further to add.

Appearances:

J. A. Omisade, Esq. For Appellant(s)

For Respondent(s)

Appearances

J. A. Omisade, Esq. For Appellant

AND

For Respondent