Fatai Busari Vs The State (2015)

LAWGLOBAL HUB Lead Judgment Report

M.S. MUNTAKA-COOMASSIE, J.S.C.

The accused person, now Appellant, was arraigned before the High Court of Justice, Ibadan with 5 others for the offences of conspiracy to commit felony to wit, Armed Robbery and thereby committed an offence contrary to and punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions)Act. Cap R.11, Vol. 14 Laws of the Federation, 2014.

The Appellant and others stood charged as follows:

1. On or about 18th day of November, 1994 at Mobil Petrol Station, Challenge, Ibadan, Oyo State of Nigeria conspired together to commit a felony to wit, Armed Robbery and thereby committed an offence contrary to and punishable under Section 1(2)(a) of the Laws of the Federation of Nigeria,1990.
2. On or about 18th of November, 1994 at Mobil Petrol Station, Challenge, Ibadan while armed with offensive weapons to wit: Pistol and Riffle robbed Alhaji Nurudeen Kolawole of the sum of one Hundred and Fifty Thousand Naira (N150,000.00) and in the process of the robbery operation, killing him and hereby committed an offence contrary to and punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, 398 volume XXII, Laws of the Federation of Nigeria, 1990 as amended.

The Appellant and those co-accused persons pleaded not guilty to the charges read by the court. The prosecution called a total of nine (9) prosecution witnesses who testified for the prosecution. It is to be noted that four accused persons Mumini Adisa, the Appellant herein, inclusive, each and every one made what the prosecution considered as confessional statement.

The defence made a no case submission on behalf of Fatai Busari. Mumini Adisa (the Appellant and Wahabi Alao). The trial court however accepted the no case submission in favour of Sunday, Okafor the 4th Accused only and accordingly discharged and acquitted him under Section 286 of the Criminal Procedure Law, (CPL). It, the trial court, in addition, called upon the other accused persons to defend themselves.

The three (3) accused persons, namely:

1. Fatai Busari – Appellant herein;
2. Mumini Adisa; and
3. Wahab Alao defended themselves. Not called any witness.

Appellant testified as Dw1 and called no witness. Mumini Adisa testified in his defence and called no witness. The 3rd accused person, Wahab Alao testified in his defence and called no witness.

The trial court allowed the defence counsel to address it. The defence counsel relied heavily on the confessional statements said to be made by the accused persons. The defence, in a nutshell, stated that the confessional statements of the accused persons retracted their statements. In addition they highlighted the fact that the “identification parade” conducted by the prosecution was a sham and baseless. It was submitted that the 3rd accused person, Wahab Alao was never identified during the identification parade. This submission goes further to say that the 3rd accused person was not even identified by anybody even in court. The learned counsel for the 3rd accused person, Mr. N. Dike, further submitted that none of the prosecution witness has testified to the effect that the accused persons, all of them, particularly the 3rd accused person was in Ibadan on the day of the incident i.e. 18/11/1994. He was therefore pleading Alibi. He then urged the trial court to hold that there is no evidence against the 3rd accused person, and that Exhibit P cannot be a confessional statement. All in all, the defence, through their respective counsel urged the trial court to discharge and acquit all the accused persons.

The trial court in its considered judgment at pages 88-108, delivered its judgment in which FATAI BUSARI, MUMINI ADISA and WAHAB ALAO were found guilty of the offences charged and convicted. However, before sentence, Osuolale Tijani the 2nd accused person charged was reported dead and his name was accordingly struck out.

On page 108, the trial court, Adeniran J, finally sentenced the three accused persons to death. He has this to say:-

“I have earlier held that the accused persons made confessional statements admitting the commission of the offence. I am convinced beyond any iota of doubt in the light of what I have said above that the three accused persons are guilty of the two counts as charged and they are accordingly convicted. In accordance with Section 1(3) of the Robbery and Firearms (special provisions) Act Cap.398 the sentence of this court upon you, FATAI BUSARI, MUMINI ADISA and WAHAB ALAO is that each of you will be hanged by the neck or executed by firing squard until you be dead. May the Lord have mercy on your soul”

The three (3) convicted persons were not satisfied with the judgment and sentences of the trial court, Adeniran J, appealed to the Court of Appeal, Ibadan Division, and filed a Notice of Appeal containing two (2) grounds of appeal, after the Notice of Appeal was granted in a motion. The grounds are hereby without their particulars, reproduced hereunder as follows:

“1. The learned trial judge erred in law when he convicted the 1st and 4th accused persons/appellants for the offences of conspiracy and armed robbery when the prosecution has failed to prove its case beyond reasonable doubt.

2. The learned trial judge erred in law in failing to properly convict the 1st, 3rd and 4th accused persons (Appellants) as charged.
3. The learned trial judge erred in law and in fact in convicting the accused persons as charged in view of the inherent materials (Sic) contradiction in the evidence of the prosecution witnesses.
4. The learned trial judge erred in law in failing to hold that the failure of the prosecution to produce the case file of the investigation of the incident of 30/1/95 of Crown Chemist by the Challenge Police Station occasioned a miscarriage of justice.
5. The judgment is un-reasonable, unwarranted having regard to the weight of evidence.
6. The learned trial judge erred in law when he admitted the statement of the accused persons made at the Police Station as Exhibit.”

The whole purpose of the appeal by the Appellants is to set aside the conviction and death sentence and to enter an acquittal for the 1st, 2nd and 3rd Appellants.

After the ruling of Alagoa JCA, (as he then was), on 23/3/2011, the grounds of appeal were reduced to two (2) to be thrashed out in the Court of Appeal, hereinafter called lower court. They are hereby reproduced without their particulars on behalf of the Appellants herein:-

GROUND 1:

The learned trial judge erred in law and in fact in convicting the Appellant of the offence of conspiracy and armed robbery and sentencing him to death when the prosecution filed to prove the case against the Appellant.

GROUND 2:

The learned trial judge erred in law in failing to properly evaluate the evidence adduced at the trial before convicting the Appellant for the offences of conspiracy and armed robbery and sentencing him to death.

After thorough consideration of the appeal, in a reserved judgment the court below, in a unanimous decision, found the appeal before it lacking in merit and was therefore dismissed. In a nutshell the court below affirmed the judgment of the trial court which convicted and sentenced the Appellant to death for the offences of Conspiracy and to commit armed robbery.

The Appellant dissatisfied with the judgment of the court below delivered on 5th day of July, 2012 filed an appeal to the Supreme Court of Nigeria on the following grounds.

As can be seen from pages 208 to 212 of the record, the ground of appeal are hereby reproduced without their particulars:-

GROUND 1

The courts below erred in affirming decision of the trial court convicting the Appellant based on involuntarily obtained evidence through torture without verifying the reason adduced by the defence for its retraction.

GROUND 2

The presumption of innocence of the Appellant was a right violated to the Appellant’s detriment contrary to the constitutional provision on fair hearing in judicial trial.

GROUND 3

The lower courts erred in holding that the prosecution proved its case beyond reasonable doubt.

GROUND 4

That the judgments of the courts below cannot be supported by the totality of proof of evidence and the weight of evidence adduced by the prosecution so as to sustain the verdict of guilt pronounced on the Appellant.

At the risk of repetition but for the sake of clarity, I shall reproduce the two count charges framed against the Appellant herein by the trial court thus:

COUNT 1

On or about 18th day of November,1994 at Mobil Petrol Station, Challenge, Ibadan, Oyo State of Nigeria conspired together to commit a felony to wit:

Armed Robbery and there (Sic) committed an offence contrary to and punishable under Section 1(2)(a) of the Robbery and Firearms (special provisions) Act, 398 volume XXII, Laws of the Federation of Nigeria, 1990.

COUNT 2

On or about 18th day of November, 1994 at Mobil Petrol Station, Challenge, Ibadan while armed with offensive weapons to wit, Pistol and rifle robbed Alhaji Nurudeen Kolawole of the sum of one Hundred and Fifty Thousand Naira (N150,000.00) and hereby committed an offence contrary to and punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, 398 volume XXII, Laws of the Federation of Nigeria, 1990 (as amended).

After filling of the grounds of appeal, the parties through their respective counsel filed and exchanged briefs of argument. On 25th day of September, 2014, both parties adopted their briefs before us. The appellant in its brief formulated three (3) issues for the determination of the appeal thus:

“1. Whether the court below was right in affirming the trial court’s decision which was based on untested extra-judicial statements, and the contents of which the Appellant fully retracted. (Ground 1 of the Notice of Appeal).

2. Whether the court below was right in holding that the prosecution proved its case against the Appellant beyond reasonable doubt. (Ground 3 and 4 of the Notice of Appeal).
3. Whether to the Appellant was given fair hearing having regard to the manner he was denied access to materials required for him to properly defend himself. (Ground 2 of the Notice of Appeal).

Let me say a word or two on this appeal. This appeal is similar in all material respects to Appeal No. SC/359/2012 in which judgment was delivered by this court on 19th December, 2014. The appeal herein was based on the same grounds and issues as grounds and issues in SC/359/2012.

In our judgment in SC/359/2012, we dismissed that appeal in a considered judgment. It is therefore, of no useful purpose to dissipate too much energy on the appeal. However, to fulfill all righteousness, let me deal with the issues again.

On issue 1 distilled by the Appellant, it was clearly stated that the issue is formulated from ground 1 of the Notice of Appeal. After reviewing the evidence of the witnesses and reproducing the submissions of counsel, the learned trial court in its judgment at pages 104-107 of the record proceeded to paraphrase the contents of the said statements. For the 1st accused, for example, he summarized the contents of Exhibit O and did the same analysis in respect of the Exhibit for the 3rd accused person. Specifically for the Appellant, the trial court stated at page 106 of the record thus:-

“The statement of the 2nd accused person is Exhibit O and that statement contains the following facts:-

1. He knows the 1st (Appellant herein) and 3rd accused person and Osuolale (now dead).
2. They had come to Ibadan two times on robbery operations.

The first time they snatched from one man at Challenge Area, a bag containing N150,000.00 at gun point and shared the money equally (four of them that is himself, 1st accused, 3rd accused and Osuolale).

3. On 30/11/95 they came to Ibadan against for robbery operation at Challenge Area, Ibadan.
4. They were arrested by a policeman at Chemist shop.
5. In the other operation at Ibadan they robbed at gun point and collected N150.000.00 which the four of them shared.”.

In Exhibit N1, the Appellant had stated thus:-

“I wish to state that sometime last year 1994, in the month of October, myself, Sunday Okafor, Osuolale and Wahab came from Lagos to Ibadan with a 504 Saloon car driven by one Sunday Okafor, then by reaching at Mobil Petrol Station, Challenge, we entered and bought fuel in the sum of N200.00 myself and Osuolale came down from the vehicle and entered in the petrol supermarket Osuolale in possession of the money in a bag containing N150,000.00 I fired at the owner of the bag, about two times I fired twice at his chest. After firing we then rush to the vehicle with the money and drove away to Lagos at Sunday shop at Idumota and we share the money N75,000.00 two each.” (Underlining supplied).

The above quoted Appellant’s confessional statement was corroborated by his co-convict-Mumini Adisa in his own statements made before the police during investigation of the offences. Mr. Adisa statements were tendered into evidence as exhibits J and O. (see page 47 of the record of Appeal).

In addition, Wahabi Alao, another co-convict also said the same thing in his statement which was tendered into evidence by PW9 (Jacob Ademuyiwa- Deputy Superintendent of Police) as Exhibit P.

At page 16, lines 24-40 of the record of Appeal, the aforementioned Wahabi Alao stated as follows:-

“On our way coming from Lagos, we came with one 504 Saloon car which was driven by Sunday. On getting to Lagos Challenge end of Express way, there is Mobil filling station to a right hand side when coming from Lagos, Sunday pointed to a man who I thought was the owner of the filling station, that he conveniently say that that’s the man having money with him. It was where we parked the vehicle at the road side and then Fatai und Osuolale came down from the vehicle while Sunday was on steering and the engine was on. Immediately, Fatai and Osuolale went direct to the man and later on we heard a gunshot of which at that time the man fell down. This was where Fatai and Osuolale remove the polythene bag containing N150,000.00 which the victim was holding. They urgently came into the awaiting vehicle where we immediately rushed back to Lagos. It was Fatai that was in possession of the pistol on our trip from Lagos and back. It was the very Fatai that shot the victim of the filling station,….., …….out of this N150,000.00 the money was shared into N75,000,00 was taken by myself and Mumini while the rest N75,000.00 was shared by Fatai and Osuolale respectively.”

Having seen as above the learned trial judge stated thereafter that:-

“It is pertinent to observe that the facts contained in the statements of the accused persons which I have analyzed above agree in many respects. I am also of the view that those facts agree substantially in some material particulars with the evidence of PW1, PW2 and PW4 as regards the operation at Mobil Petrol Station Challenge, Ibadan.”

The Appellant (sic) Mr. A.A Olatunji, Esq., is of the view that the learned trial judge relied heavily on the statements of the accused persons, which are confessional in nature, to convict and sentence the Appellant and other accused persons, relying on Exhibit O and N, and Exhibit P respectively. The learned counsel added that the reference the trial court made to the evidence of Pw1, Pw2 and Pw4 was just to find external support to corroborate the confessional statement.

Learned counsel to the appellant submitted in this court as he did in the court below that it is the duty of the prosecution to prove the case against the appellant beyond reasonable doubt and that this burden does not shift until it is discharged. Reliance was placed on the cases of IDEMUDIA VS STATE (1997) 7 NWLR Part 610 page 202 at 215 Paras F-G and ESANGBEDO VS STATE (1989) 4 N.W.L.R. Part 113 at 57.

Learned counsel seemed to suggest that the court below which just confirmed the decision of the learned trial judge merely compared the extra-judicial statement of the Appellant and the other accused persons at the trial and came to the conclusion that the facts contained in the statements of the accused persons agree substantially in some materials with the evidence of PW1, PW2 and PW4 as regards the operation at Mobil Petrol Station, challenge, Ibadan. He contended that the learned trial judge did not evaluate the evidence adduced at the trial at all before coming to the decision as he did in convicting the Appellant and sentencing him to death.

Submitted further that the apex court adopted a standard safety valve for the reliance on confession statements in the case of DAWA VS. STATE (1980) 8-11 SC. Page 236. The Supreme Court applied the test which laid down in R v. SYKES (1913) 18 C.R APP. R233 and cited with the approval in KANU VS R. 14 W.A.C.A for the verification of confessional statement before applying any evidential weight to them. The six tests are:-

1. Is there anything outside it to shows that it is true;
2. Is it corroborated
3. Are the statements made in it of facts, true as far as they can be tested;
4. Was the prisoner one who had the opportunity of committing the murder (offence);
5. Is his confession possible;
6. Is it consistent with other facts which have been ascertained and which have been proved

Counsel argued that it was wrong for the court to have acted on the confessional statements without testing the truth thereof. He submitted that the statements contained in the alleged confessional statement cannot be true. He argued that the prosecution at the trial left very many gaping holes which create reasonable doubt as to the authenticity of the alleged confessional statement.

Learned counsel argued further that the learned trial judge failed to properly evaluate the evidence placed before him.

Reliance was placed on the case of LAGGA VS. SARHUNA (2008) 16 NWLR Parts 1114 at 427 and ODOFIN & ORS VS. MOGAJI & ORS (1978) N.S.C.C. page 275. Submitted that the comparison made of the extra-judicial statements cannot pass proper evaluation. He urged the court of evaluate the evidence placed before the trial court as contained in the record of appeal and resolve the doubts in favour of the Appellant.

Learned counsel for the Respondent in reply submitted that the appellant made a statement before the police upon his arrested in connection with the offences of Conspiracy and Armed Robbery. Same were admitted as Exhibit N and N1 during trial. Appellant tried to deny the content that the exhibits are admissible against him and can be convicted on the basis of same, submitted that the conviction of the appellant for the offences of conspiracy and armed robbery by the learned trial judge is proper and valid in law. He referred to the cases of R. VS. KANU (1952) 14 WACA. PAGE 30. MUMINI VS STATE (1975) 6 SC. at 79, EJINIMA VS. STATE (1991) 6 NWLR. Part 200 at 627 and AKPAN VS. STATE (1992) 6 NWLR Part 248 at 439.

Submitted further that the material contradictions in the oral testimony of the appellant with his statement made before the police on 31/1/95 which was admitted during trials as exhibit N1 and the testimony of PW4 Adewuyi Musibau Abiodun who gave an eye witness account of the conspiracy and the robbery operation point to the irresistible conclusion that the Appellant conspired with his co-conspirators to rob the Late Alhaji N.O A. Kolawole the Director of Mobil Petrol Station at Challenge, Ibadan on 18/11/94.

He contended further that the offence of armed robbery was established through credible evidence of the witness that the appellant and his co-accused were responsible for the robbery operation carried out by them with use of gun through which substantial sum of money was carted away from the Late Alhaji N.O.A. Kolawole and was killed in the process, submitted that the prosecution has proved the offence of robbery beyond reasonable doubt through credible evidence. Reliance was placed on MUHAMMAD VS. STATE (1991) 5 NWLR. Part 192 page 438.

On the evaluation of the evidence by the learned trial judge, counsel submitted that the decision of the learned trial court, which the court below confirmed, was based on findings of the trial judge which are in conformity with proper analysis of the evidence before the court. Counsel urged the court not to disturb the findings since they are not perverse. He referred to the cases of UBANI VS. STATE (2004) FWLR. Part 191 paqe 1533 at 1552 paras A-B and FANNAMI VS. BUKAR (2004) ALL F.W.L.R. part 198, page 1210 at 1270 paras A-E.

Submitted that the Appellant’s position that the learned trial judge did not properly evaluated the evidence before him is baseless and an afterthought. He urged the court to resolve issue 1 and 3 against the Appellant.

Section 138 (1) of the Evidence Act states that:

“If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.”

See also the case of AIGBABON VS. STATE (2000) 7 NWLR part 666, page 686 at 704 para B where the Supreme Court opined thus:

“in criminal trial, the onus lies throughout upon the prosecution to establish the guilt of the accused beyond reasonable doubt. Even where an accused in his statement to the Police admitted committing the offence, the prosecution is not relieved of that burden.

In the case at hand, PW1, PW2 and PW4 testified as eye witnesses to the commission of the offences of conspiracy to commit robbery and armed robbery. Appellant made exhibits N on 30/1/95 and exhibit N1 on 31/1/95. He stated materially in exhibit N1 that he came from Lagos to Ibadan in company of Sunday Okafor, Osuolale and Wahabi. They entered Mobil petrol station Challenge. Appellant and Osuolale came down from the vehicle and entered the petrol Supermarket. Osuolale was in possession of the bag containing sum of N150,000.00k while Appellant fired at the owner of the bag two times. They rushed back to the vehicle and drove to Lagos.

For the avoidance of doubt, Exhibit N1 the extra judicial confessional statement of the Appellant made on 21/1/95 at page 11 of the record is reproduced as follows:

“In addition to my first statement O made to police on the 30/1/95, I wish to state that, sometime last year 1994, in month of October, myself, Sunday Okafor, Osuolale and Wahabi came from Lagos to Ibadan with a 504 Saloon car driven by one Sunday Okafor, then by reaching at Mobil petrol station, Challenge, we entered and bought fuel in the sum of N200.00 myself and Osuolale came down from the vehicle and entered to the petrol supermarket, while Osuolale in possession of the money in the bag containing N150,000.00k I fired at the owner of the bag, about two times I fired him twice at chest, After the firing we then rush to the vehicle with the money and drove away to Lagos at Sunday shop at Idumota, where we shared the money N75,000.00 two each, of which I gave N3,000.00 to Julius while the others settle same when I left. Then I left to my house. It’s Sunday that brought us to the filling station, which he previously targeted the man who normally carried money frequently outside, the vehicle used on that day belongs to Sunday which I cannot remember the registration number but the colour is white.”

The facts contained in the statement of the Appellant agree in some material particulars with the evidence of Pw1, Pw2 and Pw4 as regards the operation at Mobil Petrol Station Challenge, Ibadan. There is nothing before the court to suggest otherwise than they were voluntarily made. The confessional statement is direct, positive and unequivocal of facts that satisfy the ingredients of offence, the offence which the appellant confesses to have committed. See R VS. OMOKARO (1974) W.A.C.A. Page 146, ACHABUA VS. STATE (1976) N.S.C.C. at 74 and YUSUF VS. STATE (1976) 6 S.C. at 167 or (1988) 4 N.W.L.R. part 86 at 96.

I confirm that it is a good law that a court can convict on the retracted confessional statement of an accused person but it is desirable to find outside the confession some evidence be it slight of circumstances which make it probable that the confession was true. See QUEEN VS. ITULE (1961) 2 NSCC at 183 and EDHIGERE VS STATE (1996) 8 NWLR Part 464 at page 1. The desirable evidence have been supplied by Pw1, Pw2 and Pw4. The evidence on the record showed that:

1. There was robbery;
2. It was carried out with use of offensive weapon;
3. That the Appellant participated in the robbery

See the cases of BOZIN VS. STATE (1985) 2 NWLR Part 8 page 465 at 469 and ALABI VS. STATE (1993) 7 NWLR Part 307 page 511 at 523 paras F-H.

Conspiracy is an agreement of two or more persons to do an act which is an offence to agree to. Evidence of direct plot between conspirators is hardly capable of proof. The bottom line of the offence is the meeting of the minds of the conspirators to commit an offence and meeting of the minds need not be physical. Offence of conspiracy can be inferred by what each person does or does not do in furtherance of the offence of conspiracy. See NWOSU VS. STATE (2004) 15 NWLR Part 897 page 466; ODUNEYE VS STATE (2001) 2 NWLR Part 697 page 311, ADEJOBI VS. STATE (2001) Part 1261 at 347.

It is established on printed record from the evidence of Pw1, Pw2 and Pw4, as well as the confessional statements of the Appellant and the other co-accused persons that they were acting in concert and an inference of conspiracy can safely be drawn. See OYAKHIRE VS. STATE (2007) ALL FWLR Part 344 page 1 at page 12 – 14.

Appellant admitted participating in the alleged armed robbery in his statement to the police which was tendered and admitted in evidence as Exhibit N1 though appellant retracted same in his evidence. Once confessional statement is proved to have been made voluntarily, as in this case and it is direct, positive, unequivocal and clearly amounts to an admission of guilt, it can still ground conviction regardless of the fact that the maker resiled therefrom or retracted the same completely at the trial, as such retraction does not make it admissible or that the court should not act on it. See IDOWU VS STATE (1998) 13 NWLR Part 582 page 391, OBISI VS. CHIEF OF NAVAL STAFF (2002) 2 NWLR Part 751 page 400 at 418 and SHADE VS STATE (2005) 1 NWLR Part 218 at page 218.

I readily accept the position of the court below which confirmed the view of the learned trial judge that Exhibit ‘N1′ being a confessional statement as well as the evidence of Pw1, Pw2 and Pw4 as credible and probable it is also real from the evidence adduced it is clear that the appellant was one of those who took part in the armed robbery. The contradictions referred to by the learned counsel to the appellant are not material and as such has not occasioned any miscarriage of justice in view of the evidence of eye witnesses. In any case, appellant has not demonstrated how a miscarriage of justice has been occasioned.

The evaluation of the learned trial judge is unassailable which the court below rightly accepted. It is settle law that the primary duty of a trial court is to evaluate and ascribe probative value to the evidence before it. A trial court had the opportunity of watching the demeanor of witnesses who testified before it is entitle to believe or disbelieve such witness. See ADELUMOLA VS. STATE (1988) 1 NWLR Part 73 page 683 Ratio 1. The evidence led before the court had been rightly evaluated as there is nothing on record to show that the evaluation of evidence done by the learned trial judge was in any way perverse. In the circumstances, this court will not disturb the finding and evaluation of the evidence carried out by the learned trial judge which the court below accepted. That being the case, Issues I and 2 are thereby resolved against the appellant.

ISSUE THREE

Issue three (3) deals with fair hearing. Appellant took the position that he was not accorded fair hearing. In fact his position is that he was not given even a hearing, not to talk of fair hearing. Appellant’s position in this regard spans about three and half pages out of which two (2) were on analysis of the concept of fair hearing. Only a page was devoted to actually locating his situation.

It is not useful merely to quote principles without applying them to the peculiar facts and circumstances of the party’s case.

Be that as it may, I have decided to examine the issue, all because life is involved and not necessarily the seeming passing remark of the appellant.

The appellant’s counsel hinged his argument on alleged denial of fair hearing both at the trial court and the court below on the ground that alleged non-production of the statements made at the Challenge Police Station.

Records however reveal that during the trial of the appellant and his co-convicts before the trial court, all pieces of evidence relevance to the prosecution of offences for which he and other convicts were charged were tendered by the prosecution. What evidence to tender and witness to call, to prove the charge preferred against the appellant, solely lies at the discretion of the prosecution and not the defence. The latter cannot force the prosecution to call or adduce particular witness or tender particular evidence.

However, the wrong impression being created by the appellant in relation to the alleged non-production of the purported statements made by the appellant at challenge Police Station was unequivocally debunked by pw8-Thomas Oden, during his cross-examination by the defence counsel. His testimony in this regard, which is contained at page 42-43 of the record, run thus:

“The case was not reported to our station on 18/11/94 but it was reported at Challenge Police Station. The case of robbery was transferred to our station but the case file was transferred to state C.I.D. it was sent from Challenge Police Station to State C.I.D on 30/1/95. I know the reason why the accused were transferred to us. This is because we deal with robbery cases. I have not signed the file which was transferred to state C.I.D, Iyaganku despite all efforts made by me. I disagree with the suggestion that the 1st and 2nd accused persons were arrested at Challenge for a case of stealing originally. I disagree with the suggestion that we concocted the case of robbery against the 1st and 2nd accused persons to cover up our investigation into the death of Alhaji Kolawole. This is not true, we started the compilation of the case file on 30/1/95 when the accused persons were transferred to us. The 1st and 2nd accused persons made confessional statements. I confirm saying we receive a signal from Abeokuta. The signal is hereby reproduced.I disagree with the suggestion that we arrested the wrong people in connection with the robbery of Mobil Petrol Station.

There were about twelve men on the identification parade including the accused persons. Five accused persons were paraded; Pw1 identified the 1st accused person. Pw1 also identified the 2nd accused person. The identification parade was carried out in front of Mokola Police Station……………………………………….”

It is crystal clear from the above that the alleged concealment of statements made by the appellant and his co-convicts by the prosecution is founded. It is clear that the evidence relied on by the prosecution to prove its case against the appellant emanated from a record which the Police started compiling since January, 1995.

Moreover, if the appellant felt strongly about his alleged statement made by him at challenge Police station, which ought to be tendered by the prosecution but was concealed and/or not tendered as alleged, the onus was on the appellant to compel the prosecution to tender same during trial. He could have filed the appropriate application before the trial court, for example, Notice of produce, subpoena etc. none of these applications was filed by the appellant throughout the trial of the case before the trial court. It is far too late in the day to now complain about those things.

In the finally analysis on this issue, the prosecution adduced the evidence the felt sufficient to prove their case beyond reasonable doubt. The appellant’s complaints are misguided. The rules of procedure provide ample method by which a concerned party can compel his or her opponent to produce material evidence that he or she feels will favour him. It is only when the methods have been employed and the opponent fails to produce the evidence that “withholding evidence” can be mentioned. The appellant did not bother to employ those methods and should now be stopped from complaining.

Having dealt with all the issues in this appeal, I hold that the same are lacking in merit. The appeal is accordingly dismissed without more.

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SC.364/2012