Akanbi Enitan Vs. The State (1986)

LawGlobal-Hub Lead Judgment Report

OPUTA, J.S.C. 

This appeal came up for hearing on Thursday, 13th March, 1986. After a careful perusal of the records of proceedings and the Briefs filed and after listening to learned counsel in elaboration of the major points taken up in their respective Briefs, I dismissed the appeal as completely lacking in merit and substance. I then said I would give my Reasons for Judgment on Friday, 6th June 1986.

Hereunder are those reasons. The three Appellants were in the court of first instance charged with Armed Robbery punishable by death under Section 1(2)(a) of the Robbery and Firearms (Special provisions) Act No. 47 of 1970. The learned trial Judge, Oduwole, J., on 13/4/84 found each guilty as charged, convicted each accordingly and sentenced each to death by hanging.

The 3 Appellants then appealed to the Court of Appeal Ibadan Division Coram Uche Omo, Dosunmu and Omololu-Thomas, J.J.C.A. In a lead judgment, Omololu Thomas (with Uche Omo and Dosunmu. JJC.A. concurring) dismissed the appeals of the 3 Appellants holding that:- “The conclusions of the trial Judge are justifiable in the circumstances ….In my view the guilt of the Appellants had been established with the necessary degree of certainty; and nothing had been urged on all the grounds of appeal to fault the judgment and accordingly, the grounds of appeal fail. The appeal is dismissed and the judgment of Oduwole, J. is hereby affirmed.”

Dissatisfied with the above judgment of the Court of Appeal the Appellants have further appealed to this Court: The original ground filed by each Appellant was the omnibus ground – “that the decision of the lower court is altogether unreasonable, unwarranted and cannot be supported having regard to the weight of evidence.” This has been held not to be a proper ground of Appeal in criminal cases where proof is beyond reasonable doubt.

The weight of evidence will become material where the evidence on one side weighed against the evidence on the other side and the case is decided on the balance of probability as happens in civil cases. In criminal case, there is either evidence to support the conviction or there is not.

An Appellant appealing against a conviction in a criminal case on the facts has therefore, to allege that the verdict is unreasonable and cannot be supported having regard to the evidence. In the leading case of Samuel Aladesuru & Ors. v. The Queen (1955) 3 WLR 515; (1956) A.C. 49: Olisah Chukura’s Privy Council , Judgment p. 598, it was held that it is not a sufficient ground of appeal to allege that the verdict is against the weight of evidence. The phrase “against I the weight of evidence” was there held to be “inaccurate and cannot properly be substituted for the words of the statute.

The Ordinance gave no appeal on such ground and the Court of Appeal was entitled to require strict observance of its provisions, but that did not mean that in a proper case, the Court of Appeal would not give leave to appeal or review the evidence if a prima facie case was shown that the verdict appealed from was one which no reasonable tribunal could have arrived.”

I, on purpose, set out in some details the decision of the Privy Council in the case of Aladesuru supra because an application to file and argue additional grounds as was made in this appeal presupposes the existence of a valid ground of appeal to which the additional grounds are additional and can therefore be added to or, or can attach. There must first of all be a principal to which an accessory can attach. The same argument holds true of an application to file amended grounds of appeal. One cannot amend or add something to nothing just as one cannot make something out of nothing for ex nihilo nihil fit. The Court has been very liberal in allowing additional grounds or Amended grounds of appeal in cases of this nature where the principal or original ground is not even a ground of appeal. I appreciate that the Appellants are each appealing against a conviction carrying a death sentence but all the same it is my view that it is only in proper cases namely:-

1. if a prima facie case is shown that the verdict appealed from was one which no reasonable tribunal could have arrived at,

Or

2. if substantial points of law or procedure are raised in the additional grounds;

then in such proper cases the Court would give leave to appeal or review the evidence but not otherwise. If this procedure is followed many appeals that really have no merit whatsoever (as the present appeal) would be disposed of speedily.

The 1st Appellant obtained leave of Court to file and argue two Amended Grounds of Appeal namely:-

“1. That the conviction of the 1st accused/appellant is wrong in law and on the facts and the same ought to be quashed in that the Court of Appeal in affirming the conviction failed to observe:-

(1) that the learned trial Judge did not direct himself as to what evidence on record was admissible against each accused and in particular that in so far as the 1st accused is concerned the Statements of the 2nd and 3rd accused (who did not give evidence) is not evidence against the 1st accused.

2. The decision of the Court of Appeal is wrong in law and on the facts in that, it not only failed to consider the case of each accused separately but fell into the same error as did the trial court of condemning the 1st appellant on inadmissible evidence.”Nothing was urged by Akinrele, S.A.N. in favour of the 2nd Appellant. Mr. Agbu for the 3rd Appellant did not file any amended grounds of appeal. In Court he associated himself with the submissions of Mr. Lardner, S.A.N. learned counsel for the Appellant. Now what are the facts and what were the learned trial Judge’s findings of fact It is from these that one can gather whether or not in his judgment the trial Judge considered the case of each Appellant separately and whether he used EX.D, the Statement of the 2nd accused, in finding the 1st accused guilty. The facts of this case are quite simple and straightforward and were carefully summarised and properly assessed by the learned trial Judge. Sunday Solomon (P.W.1) and key witness for the prosecution was on the 23/6/82 hired by the 2nd Appellant. He drove the 2nd Appellant to Wasimi Village where the 2nd Appellant directed him to branch off the main road. After half a kilometre from the main road, the 2nd Appellant who was sitting in front beside the P.W.1 switched off the engine and attempted to wrest the steering wheel from the P.W.1. During the struggle, the taxi cab of the P.W.1 OG.1363W came to a halt. There and then, 1st and 3rd Appellants emerged from a nearby bush armed with a heavy U.T.C. axe and a knife.
   
   The 1st and the 3rd Appellants ordered the P.W.1 not to shout. The P.W.1 was then pushed into the bush by the 1st Appellant who also robbed the 1st P.W. of N40 and his day’s takings. After this, the 1st, 2nd and 3rd Appellant left the P. W.1 helpless ‘in the bush and drove away in his taxi cab. The P.W.1 later went to Lafenwa Police Station, Abeokuta where he made a report and Corporal Anthony Nwaelue No. 66729 called as P.W.2 was detailed to follow P.W.1 in search of his stolen taxi cab. They travelled first to Wasimi where the P.W.1 was robbed of his taxi cab and from there they headed towards Idiroko. On getting to Ajegunle check point, a taxi No. OG.7109T pulled up. The P.W.1 recognised the Appellants and shouted “thieves, thieves.” The 3 Appellants jumped out of the taxi and took to their heels. They were chased by men of the Customs. The 2nd and 3rd Appellants were arrested and were there and then identified by the P.W.1. This was on the 23/6/82, the same day of the robbery. The 1st Appellant was later arrested and put on parade by the P.W.7, Inspector Obagunle. The P.W.1 identified the 1st Appellant during this Identification Parade. The stolen vehicle of the P.W.1, was later recovered on 30/ 6/82 at Ifonyin in the Republic of Benin by the P.W.9, Sergeant Nwegbu, No. 14606. This is the summary of the Prosecution’s case.

What was the defence of each Appellant. The 1st Appellant gave evidence in his own defence. He called no further witnesses. He denied “Snatching from P.W.1 his vehicle at Wasimi on 23/6/82” but he admitted that “the 2nd accused told me that it was the 1st P.W.’s vehicle (EX.N) that we were going to use to carry goods from Ifonyin market in Benin Republic.” Under cross-examination, he admitted “It is true I ran away at Ajegunle at the sight of a vehicle which I thought was carrying Customs top officer.” The fact that the 1st Appellant did run away at Ajegunle check point is therefore common ground. The reason for the admitted running away becomes the only issue to be resolved by the learned trial Judge on the totality of the evidence.

The 2nd and 3rd Appellants did not give evidence apart from their extra judicial Statements to the Police. Each made a No Case Submission and rested on that submission.

The main complaints in this appeal are two, namely :-

1. That the learned trial Judge did not consider the case of or against each Appellant separately.
2. That the trial Court used the Statements – extra judicial Statements made to the Police by the 2nd and 3rd Appellants who did not give evidence at the trial – against the 1st Appellant.

The learned trial Judge regarded the question of credibility as the main and substantial issue in the case. What side would he believe – the story of robbery as told by P.Ws or the story of a conspiracy by all the Appellants and the P.W.1 to use his vehicle, EX.N, to convey contraband goods from the Republic of Benin to Nigeria. I dare say that if the testimonies of P.W.1, P.W.3, P.W.7 and P.W.9 are all believed the verdict against each Appellant cannot be anything but guilty. At p.63 of the record in lines 5 to 11, the learned trial Judge concluded:-

“I believe the evidence of the prosecution witnesses which is clear and straightforward I therefore reject the defence of each of the accused persons which is nothing short of a concocted story and afterthought to save their necks.”

The learned trial Judge was “censured” for “not considering the case of each accused separately”. That complaint cannot be made against a judgment which specifically rejected the defence of each of the accused persons. To consider and reject the defence of each accused presupposes prior consideration of the case against each such accused. This was done by the learned Judge. Ground 2 of the Amended Grounds of Appeal filed on behalf of the 1st Appellant therefore fails.

Ground 1 deals with the use the learned trial Judge was purported to have made of the Statements (to the Police) of the 2nd Appellant and the 3rd Appellant. The law here is quite clear. A Statement made to the Police during the investigation of a case may amount to an admission. Such a statement is evidence against the maker on that score. But such a Statement is definitely not evidence against a co-accused. In fact it is inadmissible against a co-accused:- R. v. Akinpelu Ajani & Ors. (1936) 5 W.A.C.A. 3 at p.4.

But if a co-accused goes into the witness box and repeats on oath what he told the Police in his Statement, that evidence becomes evidence for all purposes including being evidence against a co-accused. But even there, such evidence should be and is always suspiciously regarded: Hamuzat Badmos v. Commissioner of Police (1948) 12 W.A.C.A. 361: see also R. v. Rufai Alii & Mumuni Bello (1949) 12 W.A.C.A. 432 and Rex v Augustine Ume & 2 Ors. re Vincent Egejuru (1942) 8 W.A.C.A. 123.

In this appeal, it will be definitely wrong if the learned trial Judge used the Statements of the 2nd and 3rd Appellants to convict the 1st Appellant. But he did not, he did nothing of the sort. At p.82 of the record, the learned trial Judge considered the case against each Appellant. In thus considering the ease against the 1st Appellant, the only Statement mentioned was EX.K, credited to the 1st Appellant. The trial Judge’s argument was that whether or not the 1st Appellant made EX.K, there are other pieces of evidence of his admission:- that he was in company of the 2nd and 3rd Appellants on the day in question; that he saw the car of the P.W. 1, EX.N; that he ran away at the Ajegunle check point. These were strong circumstantial evidence against the 1st Appellant. The trial court added to that the evidence of the P.W.1. P.W.3 and P.W.4. The result was the conviction of the 1st Appellant, and rightly in my view.

The only use the trial Judge made of the Statements of the 2nd and 3rd Appellants was to resolve the issue introduced by the defence that EX.A, the Statement of the P.W. 1 to the Police destroyed his evidence in court and “knocked the bottom out of the prosecution’s case.” It is trite law that if a witness is proved to have made a Statement, though unsworn, in direct conflict with his evidence on oath, then it is proper for the court to hold that his evidence in court is negligible and the case must otherwise and by other witnesses be proved: R. v. Lenard Harris (1927) 20 CR App. R. 144. The learned trial Judge then at pages 60/61 of the record compared EX.A, the Statement of the P. W.1 to the Police with the Statements the 2nd Appellant and the 3rd Appellant made to the Police and found that the alleged contradictions, if any, between EX.A. (the Statement of P.W.1) and his evidence on oath were not material. In fact the learned trial Judge found that the facts stated by P.W.1 in his Statement, EX.A were even borne out by the contents of EX.D, the Statement of the 2nd Appellant. All through, the issue was whether P.W.1 will be regarded as a reliable or an unreliable witness in view of the contents of his Statement, EX.A. The learned trial Judge did not use EX.D in convicting the 1st Appellant. No. He used the evidence of P.W.1, P.W.3, P.W.4, P.W.7 and P.W.9. It will be a stronger case if, on the totality of the evidence of all these witnesses, the trial court could not still have convicted the 1st Appellant. No such case was urged before us.

Finally, I must commend Mr. Akinrele, S.A.N. for not hitting his head against a brick wall as Mr. Lardner, S.A.N. seemed to have done. If really there is nothing to urge in favour of an Appellant, learned counsel has a right and owes the court a duty to say so. There is nothing wrong in accepting the obvious but there is everything wrong in taking sides against arithmetic. The above were my reasons for dismissing this appeal on 13/3/86.

OBASEKI, J.S.C. (Presiding): After reading the briefs of argument and hearing arguments of counsel in this appeal on the 13th day of March, 1986, I found the appeals of the three appellants devoid of merit, dismissed them and reserved my reasons for the judgment till today. Since then, I had the advantage of reading in draft the Reasons for Judgment just delivered by my learned brother, Oputa, JSC. I agree with them and those reasons formed the basis of my dismissal of the appeals of the three appellants.

Chief F.O. Akinrele, SAN, had nothing that could be urged usefully on behalf of the 2nd appellant for whom he appeared as counsel. His opinion is borne out of a wise and reasoned judgment after a close and thorough study of the record of proceedings.

The spirited attack on the judgment of the court below by H.A. Lardner, SAN, learned counsel for the first appellant and Mr. Chuka Agbu, learned counsel for the third appellant arose out of a misconception that the learned trial Judge did not consider the case of each appellant separately and that he made use of the statements of the second and third appellants to the police to convict the first appellant. My reading of the record did not disclose this fact and more than anything else, the oral testimony of the first P.W., second P.W., third P.W., fourth P.W., seventh P.W., and ninth P.W. proved the case of armed robbery contrary to section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act No. 47 of 1970 against all the three appellants beyond reasonable doubt. The robbery was carried out in broad daylight in the morning when the 1st appellant whom P.W.1 picked up as a passenger at Abeokuta turned an armed robber at Wasimi Village struggled with P.W.1 for the car and with the aid of 2nd and 3rd appellants who were armed with a heavy V.T.C. axe and knife succeeded in overpowering him pushing him out of his taxi cab OG 1363 and into the bush. They then drove off with the car. P.W.1 wasted no time in making a report to the police who took prompt action and by evening had spotted the 3 appellants at Ajegunle village and succeeded in arresting 2nd and 3rd appellants while 1st appellant escaped. Subsequently, the 1st appellant was apprehended and identified at an identification parade.

There is no basis whatever for the submission that the learned trial Judge did not consider the case of each appellant separately and or that he used the contents of the statements made by the 2nd and 3rd appellants to the police to arrive at his verdict of guilty passed on the 1st appellant. There is similarly no basis for the submission of Mr. Chuka Agbu, learned counsel for the 3rd appellant that the statement of the 2nd appellant provided the material evidence on which the conviction of the 3rd appellant was founded. It is the law that where there are several persons standing trial for an offence, the case against each accused must at the conclusion of the evidence and addresses be considered separately. It is also the law that the statement to the police of a co-accused confessional or otherwise, is no evidence against his co-accused unless the truth of the statement is adopted by him. The learned trial Judge and the Court of Appeal have acted within the provisions of these laws and I reject counsel’s submissions that they committed an error of law.

It was for the above reasons that I dismissed the appeals of the three appellants on 13th day of March, 1986.

ANIAGOLU, J.S.C.: This is one of the clearest armed robbery cases on record. The appellants had designed to rob the complainant of his motor vehicle. They, in fact, succeeded in taking by robbery the said motor vehicle. There was immediate report to the police who immediately went in search for the appellants. The three appellants were seen, and two of them, (2nd and 3rd appellants) caught, the same day, namely, 13th June 1982. The 1st appellant who ran into the bush when the three appellants were first sighted, was later captured and properly identified at an identification parade.

I had read in draft the ‘Reasons for Judgment’ just delivered by my learned brother, Oputa, J.S.C., and I entirely agree with them. A fortiori, I also agree with Messrs. Akinrele, S.A.N. for the 2nd Appellant and the Assistant Director of Public Prosecutions, Ogun State, R.A. Bello, of Counsel, for the Respondent, that nothing useful could possibly be urged in favour of the Appellants in this appeal. It was for that reason that I had stated in my interim judgment on 13th March 1986 that this appeal was “absolutely and completely unmeritorious” and reserved today for giving further reasons for that conclusion. Nothing has since affected my conclusion to that effect.

It was for the above and the more elaborate reasons given by Oputa, J.S.C., which 1adopt, that I dismissed this appeal on 13th March, 1986.

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Other Citation: (1986) LCN/2270(SC)