Ganiyu Wahab V. The State (2016)
LawGlobal-Hub Lead Judgment Report
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.
This is an appeal against the judgment of the Lagos State High Court per D. O. OLUWAYEMI, J., delivered on 2nd July, 2007 wherein the Appellant was convicted for Murder contrary to Section 319 of the Criminal Code Law of Lagos State 2003 and sentenced to death by hanging.
A brief fact of the dispute leading to this appeal will suffice. The Appellant was charged on one count charge contained in information, to wit:
STATEMENT OF OFFENCE:
Murder, contrary to Section 319 of the Criminal Code Law, Cap C17 Vol. 11 Laws of Lagos State, 2003.
PARTICULARS OF OFFENCE
Ganiyu Wahab (M) on or about the 23rd day of January, 2005 at Agboyi/Alapere in the Ikeja Judicial Division murdered one Kolawole Lateef Alaran by stabbing him with a broken bottle.
Appellant pleaded not guilty. The prosecution called three (3) witnesses while the Appellant testified for himself. Upon conclusion of trial, the Appellant was found guilty and was convicted him accordingly.
Being dissatisfied with the judgment of the lower Court, the Appellant
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appealed vide an amended Notice of Appeal dated and filed 31st March, 2010 but deemed properly filed and served on 21st April, 2010 based on 11 grounds of appeal.
Appellant’s Brief of Argument dated and filed 13th October, 2010 but deemed properly filed on 1st April, 2012 and a reply brief dated 10th November, 2012, filed 11th November, 2011 and deemed properly filed on 7th March, 2014 was settled by Edmund
Chinonye Obiagwu, Esq. of Legal Defence & Assistance Project (L.E.D.A.P.).
Four issues were formulated for determination in the Appellants’ Brief thus:
1 “Whether the unexplained differences between the two main pieces of evidence relied upon by the prosecution, namely, the evidence of PW1 and Exhibit A, cast doubt on the guilt of the Appellant.
2. Whether Exhibits A and E, the statements of the Appellant to the police were inadmissible because the Yoruba version in which the statements were given were not tendered in evidence and PW2 who tendered Exhibit A was not the recorder or interpreter of the statement into English.
3. Whether PWI was a tainted witness whose evidence required corroboration, and if the answer
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is in the affirmative, whether there is any evidence in the case that corroborated her evidence.
4. Whether the concluding finding of the learned trial judge on the guilt of the Appellant at the interlocutory stage of trial within trial was not fatal to his Lordship’s subsequent proceedings and judgment, and thereby occasioned a miscarriage of justice.”
The Respondent brief on the other hand was settled by E. I. Alakija (Mrs.) and Olaide Eboda (Mrs.) both of the Lagos State Ministry of Justice dated and filed on 3rd November, 2011 but deemed properly filed on 1st March, 2012, wherein four issues were settled for determination thus:
1. “Whether the failure to call all the witnesses listed on the list of witness amounts to withhold of evidence and to miscarriage of justice. (This issue relates to ground two, seven, nine and ten).
2. Whether failure to cross-examine the recorder of Appellant’s confessional statement amounts to unfair trial and denial to fair hearing. (Relates to grounds three and eight).
3. Whether the prosecution discharged the burden of proving the Appellant’s case beyond reasonable doubt. (Relates to ground one and
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four).
4. Whether ground eleven of the Appellant’s Amended Notice of Appeal is competent. (Relates to ground eleven).”
On the part of this Court, I have carefully examined the issues formulated by the respective parties in this appeal. I believe issues formulated by the Appellant and the Respondent is a fragmentation of a sole issue, to wit, whether the lower Court was right to hold that the Appellant is guilty of the offence in view of the nature and quality of evidence adduced by the prosecution? However, the issues and arguments of the counsel as put forward in the briefs shall be comprehensively enumerated and considered.
Submitting on the Appellant’s issue one, counsel on his behalf submitted that the two main evidence upon which the Appellant was convicted i.e. oral evidence of PW1 and Exhibit A were at variance with each other based on the account of events that led to the death of the deceased. He referred to the judgment of the lower Court at pages 95 and 99 of the record where the trial Court relied on both evidence and further submitted that both evidence could not have been true at the same time, as reading through the entire
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evidence appeared as though there were two separate events. He cited AHMED v. STATE [1999] 7 NWLR (Pt. 612) 641 at 68; ASANYA v. STATE [1991] 3 NWLR (Pt 180) 422; OGUONZEE v. STATE (1998) 58 LECN 3553 at 3555.
He contended further that no other evidence in the entire case would have corroborated Pw1’s evidence as they were all hearsay including the evidence of PW1 and PW2, the policemen who investigated the crime. There are also other fact in the case that suggests the untrue nature of Exhibit A namely; the evidence of PW1 which is at variance with the said Exhibit; the first statement of the Appellant; the evidence of PW3 who obtained the said Exhibit A, he referred to the evidence of PW3 at page 65 of the records.
He concluded on the settled fact of law that when the evidence of prosecution is at variance with each other on the essential issues, the prosecution is required to explain the reason for such difference and upon his failure; there is a possibility that either or both evidence are not true and that would raise doubt as to the guilt of the accused person. He finally submitted that the inconsistencies in the prosecution’s case raise a
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doubt, and he urged the court to resolve this issue in his favour.
On issue two, Appellant argued that the statement of the Appellant was taken in Yoruba language, and that both versions of Yoruba and the English were not tendered; only the English version was tendered, thus making the statement inadmissible. He referred to the evidence of PW2 at page 24 of the record.
He argued that the law is settled on the fact that a statement of the accused should be recorded in the original language in which he is giving it, read and then translated into the language of the Court, and both should be tendered in evidence. He cited AJIDAHUN v. STATE [1991] 9 NWLR (Pt. 213) 33; BROWNSON ETUK UDO v. THE STATE (1964) 1 ALL NLR 261; R v. JOHN OGBUEWU (1949) 12 WACA; NNANA OKORO v. QUEEN (1960) SCNLR 292.
He further itemized the rules that must be followed where an accused person is only literate in other language but English and submitted that the rules were not followed in this particular case. He further submitted that Exhibit A was not admissible because the Yoruba version was not tendered in evidence. He cited AHMED v. STATE [1999] 7 NWLR (Pt. 612)
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641; NWAEZE v. STATE [1996) 2 NWLR (Pt. 428) 1; OLALEKAN v. STATE [2001] 18 NWLR (Pt. 746) 793; OJENGBEDE v. ESONG (2002) FWLR (Pt. 90) 1406; R v. ZAKWAKWA (1960) 5 FSC 12; IGELE IYU v. THE STATE (1965) 1 ALL NLR 203 at 209; SHIVERO v. STATE (1976) 3 SC 63.
It is also the submission of counsel that PW2 who tendered Exhibits A was not the person who interpreted or recorded the statement either in both languages; his statement was hearsay even though he said he was in the room where the statement was taken. He contended that since the Appellant gave his statement in a language other than English, it is mandatory that it is the recorder that should give evidence of the statement in order to prove its authenticity. Appellant submitted that the failure to call the recorder of the statement denied the Appellant the opportunity of an effective cross examination which is fundamental to the right of fair hearing as enshrined in Section 36 of the Constitution.
He finally submitted on this issue that expunging Exhibit A from the record would mean that the only evidence left will be that the statement of PW1, which as previously submitted needs
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corroboration being the evidence of a tainted witness.
On issue three, Appellant defined who a tainted witness is and cited OKORO v. STATE [1998] 14 NWLR (Pt. 584) 181 at 215-216; OGUONZEE v. STATE (supra). He further gave reasons for the conclusion that pw1 was an accomplice in the matter. He therefore submitted that the learned trial judge was wrong to have held that PW1 was not a tainted witness, and that the evidence of PW1 alone cannot sustain the conviction.
On the fourth issue, Appellant contended that it is fatal to the whole proceedings for the trial Court to delve into the substance of the case at the interlocutory stage, while giving his interlocutory ruling. He referred to page 54 of the records were the learned trial judge gave concluding remarks on the guilt or otherwise of the accused at the interlocutory stage. He submitted that the law is clear on the fact that a judge is not allowed to delve into the substantive issues at the interlocutory stage. The guilt of an accused person in a criminal charge can only be determined by the Court after hearing both sides, and a proper evaluation of all evidences before it. The Court is
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however not expected to do so during trial within trial as in the instant case.
He finally submitted that the action of the trial Court runs contrary and against the old cardinal principle of justice: audi alterem partem, and also contrary to the Appellant’s right of fair hearing. He referred to Section 36 of the Constitution of the Federal Republic of Nigeria 1999 as amended. He then urged the Court to resolve the issue in favour of the Appellant.
Submitting in response on the first issue formulated in the Respondent’s brief, counsel to the Respondent submitted on the first issue that in criminal case, the prosecution is not bound to call all witnesses on the list, that the Court can act based on the evidence of a single witness provided the witness can be believed based on the circumstances of the case. He cited OLABODE v. STATE (2009) 5-6 SC 29 at 43; SULE v. STATE (2009) 6-7 SC 28 at 46-47; AROGUNDADE v. STATE (2009) 1-2 SC (Pt. II) 24 at 40; SUBRAMANIAN v. PUBLIC PROSECUTOR [1956] 1 WLR 965 at 969. Respondent further submitted that the conclusion of the learned trial judge has cleared all argument by the Appellant’s counsel, and he urged
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the Court to hold same. Counsel finally submitted that no evidence was withheld and thus there was no miscarriage of justice, the Appellant’s counsel had all the opportunity at the lower Court but did not object to the admissibility of the evidence.
On the second issue, Respondent submitted that fair hearing as envisaged by Section 36 of the Constitution of the Federal Republic of Nigeria 1999 as amended means a trial conducted in accordance with all legal rules formulated to ensure that justice is done to both parties. He therefore submitted that the argument of the Appellant on fair trial and hearing are misconceived, lacks merit and is not worthy of consideration.
Submitting on the third issue, Respondent’s counsel argued that the law is settled that the main ingredients of the offence of culpable homicide punishable with death must be proved beyond reasonable doubt by the prosecution. He cited MILLER v. MINISTER OF PENSIONS (1947) 2 ALL ER 372.
Counsel while enumerating the ingredients to be established by the prosecution in the offence of culpable homicide referred to the case of USMAN KAZA v. STATE [2008] 7 NWLR (Pt. 1085) 125 at
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163. He further submitted that once it was found that the man actually died, the death of the deceased must be directly traceable to the act of the accused. He referred to pages 90-101 where the trial judge held that the prosecution has proved 3 essential ingredients of murder, and submitted further that this is a finding of fact that the Court will not interfere with except if it has reasons to so do which in this case such reasons are not present.
Arguing issue four which bothers on ground eleven of the Appellant’s Amended Notice of Appeal, Respondent referred to same and submitted that in criminal trials, the burden of proof is always on the prosecution who is expected to prove beyond reasonable doubt. He cited EBENEHI & ANOR v. STATE [2009] 2-3 SC (Pt. II) 109 at 119; IBRAHIM v. THE STATE (1991) 4 NWLR (Pt. 186) 399 at 424 and submitted that ground eleven in the notice of Appeal is not a proper ground of appeal in criminal appeal. He finally urged this Court to strike out ground eleven as same only exists in civil matters and not criminal matters and resolve this issue in favour of the Respondent.
?In the Appellant’s Reply Brief,
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Appellant’s counsel adopted the submissions contained in the Appellant’s brief but further submitted in reply to the Respondent’s issue four that the issues in grounds 5 and 6 relate to jurisdiction of the lower Court and that it was a complaint on error in the proceeding that the lower Court of its jurisdiction to judicially and judiciously decide the case and same can be raised at any time, hence, Appellant needs not seek leave of Court to raise the issues in the said grounds.
In Reply to the Respondent’s contention that the evidence of PW2 and PW3 were not to establish the truth of what are contained in the statements were made by the Appellant, but to establish that the statements were made by the Appellant and therefore not hearsay, Appellant’s counsel submitted that this distinction relates to oral evidence of a witness about the evidence of a statement made to a witness and that in cases of documentary, it is admissible if tendered by a witness who could be cross-examined on it, otherwise it is a documentary hearsay and therefore inadmissible. That in so far as PW2 and PW3 did not record the statement of the Appellant, none of them could
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tender it in evidence, especially where the Appellant denied making the statement. He further reiterated that PW1 is a tainted witness, whose evidence requires corroboration as she was an accomplice who has in interest to serve in the case.
As earlier noted, the sole issue to be determined herein is, whether the lower Court was right to hold that the Appellant is guilty of the offence in view of the nature and quality of evidence adduced, by the prosecution?
Let me say here that the appraisal of evidence is the primary duty of a trial Court and an Appellate Court would not readily interfere with the finding of the trial Court unless it had failed to draw the right conclusions from proved facts. This position of the law was aptly captured by MOHAMMED, JSC, in AHMED v. THE STATE [1999] 7 NWLR (Pt. 612) 641, 669, paras. A – C, when the Learned Justice of the Supreme Court held:
“In considering the issues formulated for the determination of this appeal I do recognize that the appraisal of oral evidence and the ascription of probative values to such evidence is the primary duty of a trial Court and a Court of Appeal would only interfere with
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the performance of that exercise if the trial Court had made imperfect or improper use of the opportunities of hearing and seeing the witnesses or drawn the wrong conclusions from accepted or proved facts which those facts do not support. If the trial judge draws mistaken conclusions from indisputable facts or wrongly arranges or presents the facts on which the foundation of the case rests, the appeal Court should not abdicate its own responsibility and rubber-stamp the error, but should intervene and do what Justice requires….”
After going through the submissions of both counsels in their respective briefs, I find it pertinent to re-appraise the evidence adduced before the trial Court in order to establish whether the conclusions reached by the trial Court from the facts and evidence available before the Court had established beyond reasonable doubt that the Appellant was guilty of the murder of the Late Kolawole Lateef. This no doubt is the standard required of the prosecution in criminal matters.
The case of the State/Respondent and the basis of the conviction of the Appellant by the trial Court are hinged on the evidence of PW1 as well
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Exhibit A, the alleged extra judicial statement made by the Appellant to the Police at State CID, Lagos. It is instructive to note that Exhibit A was admitted by the trial Court, after conducting a trial within trial, in its Ruling of 29th September, 2006. Appellant’s counsel had argued that the learned trial judge made a conclusive finding on the guilt of the Appellant while determining the voluntariness or otherwise of Exhibit A. At page 54 of the record, the trial judge made the following findings:
“I also believe the Accused person had the opportunity to commit the offence PW1 in her evidence said the Accused fought with the deceased when he went to ask for his empty bottles of stout bear (sic) from him as per the evidence given to him those who were around when they were sight.
This was corroborated by the only witness Ibrahim who said “Brother Ganiyu moved near Lateef and took the bottle from him and hit him on his left hand.”
I agree with the Appellant’s counsel that the above finding of the trial judge is no doubt prejudicial to the right of the Appellant to be presumed innocent until proven guilty. See Section 36 (5) of the
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1999 Constitution of the Federal Republic of Nigeria (as amended). See also AGBITI v. NIGERIAN ARMY (2011) LPELR-2944 (SC); AFOLALU v. THE STATE [2010] 16 NWLR (Pt. 1220) 584 SC; OSENI v. THE STATE (2012) LPELR-7833 (SC). At the stage of trial within trial, what the Court is called upon to consider is as to the voluntariness or otherwise of the extra-judicial statement of an accused person and not his guilt as per the offence charged. This is akin to a judge in a civil trial, making pronouncement on the merit of the case at an interlocutory stage of the proceedings. It appears that the trial judge had already made up his mind that the Appellant is guilty of unlawful killing of the deceased. Therefore, I am of the firm view the learned trial judge erred in this regard.
?Nonetheless, it is appropriate for me to say that the approach adopted by the trial judge in conducting a trial within trial when it was that the Appellant merely denied making the statement, hence retraction and not that the statement was not by him voluntarily. From the proceedings of 5th July, 2006, when Exhibit A was sought to be tendered by the prosecution through PW2, Inspector
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Nnadi, the Appellant stated at page of 27 of the record thus; “I cannot read it. This is not what I told I.P.O. The man started to beat me and wanted to kill me.” To my mind, the Appellant in clear terms denied making the statement, as the content of Exhibit A is not what he told the Investigative Police officer. The statement of the Appellant is akin to the Appellant saying that he did not make the statement, Exhibit A and that he was beaten and forced to sign the statement. In other words, he denied ever making the statement. Therefore, as done by the trial Court, the statement was admissible in evidence without conducting a trial within trial and the Court would have to determine at end of the trial, if the Appellant indeed made the statement and also assess the probative value of the evidence therein. See SAIDU v. THE STATE (1982) 4 SC 41. I am therefore of the view that the trial Court rightly admitted Exhibit A, but contrarily, on the ground that Appellant merely denied making it and not that he did not voluntarily make same. In a recent decision of this Court in FRIDAY CHRISTOPHER v. THE STATE (2015) LPELR-24714 (CA) 19, paras B-D, per ABIRIYI, JCA held
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in similar circumstances as in the instant case that:
“The lower Court was also wrong in testing the statement in its ruling on the admissibility or otherwise of the statement in evidence. That test was to have been done as shown earlier in this judgment of the end after the hearing and addresses of learned counsel and at judgment stage where the Court would have first determined if the Appellant made the statement and then assess its probative value worth or value.”
The question to be asked herein, did the Appellant make the statement contained in Exhibit A and what is its probative worth? It is instructive to note that the Appellant made two statements to the police at the Alapere police station, where the Appellant was first held. These are the statements made on the 24th January, 2005 and 28th January, 2005 recorded by PC Okpe Reuben and PC Abolarin respectively. Both statements, for reasons unknown, were attached together, tendered and admitted as Exhibit E by the trial Court. In both statements, which the Appellant made at the earliest opportunity after his arrest, he denied stabbing the deceased but that it was one Taiye Jaiyesola that
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fought and stabbed the deceased with broken bottle, leading to his untimely death. The statement of 24th January, 2005 reads thus:
“I of the above name and address hail from Agboyi I in Agboyi-Ketu local government area of Lagos State. I attended Abulo Kuta primary school in Bariga, and I resided in the above address since the year 1993, But presently, I am operating a beer parlour at were I lived. On the 23rd January, 2005 at about 12 midnight one unknown person came to celebrate carnival with us, then one of the gangs requested for two small stout, while I sent the drinks through one kehinde ‘f’ and she put the drinks at her jeans pocket at the back, while the victim came from behind and removed those drinks, than the boyfriend grow annoyed. When I asked the girl in questioned the who collected the drinks from you, she told me that is the victim, so the boyfriend to kehinde who is one, taiye ‘m’ and the surname unknown to me, (and) who is residing at ojuogun compound (with) Agboyi I with his girlfriend “f”, than all of a sudden Mr. taye and kehinde rushed him and I don’t know how it happened. Suddenly I saw blood rushing out of his left hand. Than
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(sic) I and some of his friends took him the victim to hospital at Agboyi first, while we are told that they cannot treat him, then we took him to lake from hospital Agboyi road, and when they intend giving him drip, they were unable to locate the vein, and as they were unable to see the vein the nurse asked use to take the victim to another hospital, as we are carring (sic) him we discovered that he is dead and I don’t know the names of those that (I was) assisted in carring him. Am not the one that sturb (sic) him but I suspected one mr taiye because he was the one arguing him before other people joined him.”
The above narration was re-echoed by the Appellant in his statement of 28th January, 2005.
On the other hand, Exhibit A relied heavily upon by the prosecution and which the trial Court also relied upon with evidence of PW1 in reaching its conclusion was allegedly made (though the Appellant denied making same as noted earlier) on 2nd February, 2005 upon the transfer of the Appellant from the Alapere Police station to the Lagos state CID Unit. Same was recorded by one Cpl. Ralph Aladetoyinbo and it reads as follows:
“I, Ganiyu Wahab
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‘m’ having been duly cautioned in English Language that I am not obliged to say anything unless I wish to do so but whatever I say will be taken down in writing and will be given in evidence. I voluntarily elect to state as follows:
I am a native of Agboyi 1 and I am 35 yrs old, I attended Abule-Okuta Primary School, Bariga where I finished in the year 1979 and I then proceeded to learnt driving. At present I am a beer seller and I have my shop at Agboyi Alapere. On the 23rd January, 2005 I was in my shop at Agboyi doing my normal job as a beer seller. On that 23rd January, 2005 at about 7:00pm the Youth of the Community organized Carnival which they were doing opposite my shop. When the carnival was on deceased ? Kolawale Lateef Alaran came to my shop and buy some bottles of beer. After some times they left my shop and came back again and they entered my shop I discovered that two bottles of beer were missing, I then conductored search from there I recovered the beer from there I recovered the beer from the Late Kolawole Lateef Alaran and from there fight ensued between Late Kolawole Lateef Alaran group and Agboyi’s boys. Actually I was the
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person that used broken bottle to stabbed the Late Kolawole Alaran (of his) on his left hand but I don’t know that it will lead to his death. After stabbing him myself and the friends of Late Kolawole Lateef Alaran rushed him to Lake front hospital, Agboyi but the Doctor rejected him but before we could get to our house Kolawole Lateef Alaran has give up the ghost. This is my first time of fighting with person, I have not kill before. I was not the only person that fought with the Late Kolawole Lateef Alaran. Others are Taiye Jawoshola, Kehinde Oluwo and Others whom I can not remember their names now but if seen will be able to recognise them.”
At page 99 of the record of appeal, the learned trial judge held:
“From Exhibits “A” and Exhibit “E”, to my mind, as they have gone through Trial within Trial, Exhibit “A” is voluntarily made and I believe the evidence there that the evidence put forward by the DW1 in the Examination in Chief, he went all the way to tell lies, he had forgotten he made Statements at both Alapere and Panti State C.I.D. which statements were confessional. He must have been told by his inmates to tell lies and he came here
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instead of saying like he said in Exhibit “A” that he did not intend to kill; he said he did not kill at all. He shifted the blame on Taiye, that Taiye killed whereas he admitted and at the police Station that he did kill…”
With respect and contrary to the above erroneous finding of the learned trial judge that the Appellant lied before the Court after being told by inmates to so do, the evidence of the Appellant as DW1 is consistent with the two statements he made to the Police at the Alapere Police station wherein he denied stabbing the deceased and that he suspected that it was Taiye that killed him. The Appellant at the earlier opportunity told the Police that it was Taiye that fought with the deceased and stabbed him with a broken bottle. These statements made at different times were consistent with the evidence of the Appellant at trial. Perhaps, if the learned trial judge had taken time to carefully read through the contents of the two statements admitted as Exhibit ‘E’, he would have indeed noticed the material contradiction between Exhibit ‘A’, which the Appellant denied making but was forced to sign and ‘Exhibit ‘E’. Appellant as DWI
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maintained in his defence that he was not the one that stabbed the deceased but merely joined other people in taking the deceased to the hospital. See pages 67 to 72 of the records. It is apparent from Exhibits ‘A’ and ‘E’ that there were material contradictions therein and the lower Court is not entitled to prefer one of the exhibits as against the other. Whereas Exhibit ‘A’ renders the Appellant culpable of the offence charged, the two statements admitted as Exhibit ‘E’ are exculpatory. The latter tends to exonerate the Appellant of guilt regarding the offence charged. No doubt, the statement of an accused person made to the police, if not confessional, is the very foundation of his defence; it ought not be glossed over and handed lightly by the Court. See FATAI OLAYINKA v. THE STATE [2007] ALL FWLR (Pt. 373) 163.
Another disturbing issue relating to Exhibit ‘A’ which to my mind affect its probative worth is the fact that PW2 stated in his evidence that the Appellant’s statement was made in Yoruba language but recorded in English language. The recorder, Cpl Raphael/Ralph Adetoyinbo was not called as a witness for him to be cross-examined as to
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ascertain that it was what the Appellant told him that was recorded in the statement. While I recognize that a Police officer other than the recorder of an Accused person’s statement can properly tender documents that forms the official records of another police officer made in the course of his employment, I must say that where the statement of an accused was made in another language other than the one in which it was recorded, it is necessary that the prosecution call the recorder of such statement. In the instant case, PW2, through whom Exhibit ‘A’ was tendered by the prosecution, was not the recorder. The statement was recorded by Cpl Raphael Adetoyinbo, who was not called as a witness and the Appellant had denied making the statement and alleged that he was forced to sign same after he was beaten. Only Cpl Adetoyinbo can give evidence and be cross-examined to shed light as to whether or not the Appellant was indeed made the statement credited to him, that is, Exhibit ‘A’ herein. See AWOSIKA v. THE STATE [2010] 9 NWLR (Pt. 1198] 49; ADOGA v. THE STATE (2014) LPELR-22944 (CA); F.R.N. v. USMAN (2012) LPELR-7818 (SC).
Notwithstanding the foregoing,
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the learned trial judge did not only rely on Exhibit ‘A’ in reaching his conclusion, he also relied and believed the testimony of PW1, whom the Court said was the only eye witness to the crime. I shall come to the issue of PW1 being the only eye witness later.
The trial Court believed the evidence of PW1, who was the person that was sent by the deceased to buy ‘small stout’ from the Appellant. Appellant’s counsel had argued that PW1 is a tainted witness, as her husband was the one that killed the deceased and not him, the Appellant. It must be noted that a tainted witness, is one who is either an ‘accomplice, or, by the evidence he gives, whether as witness for the prosecution or defence may and could be regarded as ‘having some purpose of his own to serve’. The Apex Court had warned in a plethora of cases against the tendency to label a witness as ‘tainted’, merely because he had given evidence against the accused person or is related to the victim of the alleged crime. In AKPAN v. THE STATE (1992) LPELR-381 (SC), OMO, JSC at 21 paras C-G, held:
“The submission was made in the Court below where that Court considered it in some detail and came to
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the conclusion that the prosecution witnesses could not be described as tainted witnesses. This Court has considered this matter on several occasions and warned against the tendency to create special category of “tainted witnesses” vide Garba Mailayi & Ors. v. The State (1969) 1 All NLR 116 at 123. In Ishola v. The State (1928) 9/10 S.C. 81 at 100. It was held that this category must be confined to a witness “who is either an accomplice or by the evidence he gives (whether as witness for the prosecution or defence) may and cloud be regarded as having some purpose of his own to serve.”
In the instant appeal, the evidence on record shows that because PW1, Kehinde Ibrahim is the wife of ‘Taiye Jaiyesola’, whom the Appellant at the earliest opportunity upon his arrest and during his evidence-in-chief was alleged to have stabbed the deceased. In BEN v. THE STATE (2006) LPELR-770 (SC), the Apex Court, per OGBUAGBU, JSC, stated:
“It is now settled that blood relationship with a deceased person does not make a witness a tainted witness or an accomplice in a murder or homicide case. Of course, such a witness is a competent (sic), in fact, a compellable
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witness by virtue of Section 154(1) or 155(1) of Evidence Act even if he is an accomplice by virtue of Section 177 or 178 of the Act….”
See also AKALONU v. THE STATE (2002) LPELR-314 (SC); ISHOLA v. THE STATE (1978) LPELR-8043 (SC). In OJO v. GHAHORO & ORS [2006] 10 NWLR (Pt. 987) 173; (2006) LPELR-2383 (SC), 31-32, paras F – A, TOBI, JSC (of blessed memory) held:
“A Court of law must be reluctant in disbelieving a witness on the ground that he is a tainted witness, because the expression is not only fluid but large and bogus? Can it be the law that a wife gives evidence in favour of the husband should be automatically be branded as a tainted witness without more? If so, why should it be so? In criminal law, a wife is a competent witness for the husband. The Evidence Act does not brand a wife a tainted witness for all times and without more.”
Considering the circumstances of this case, can PW1 be regarded as a tainted witness? What purpose does she seek to serve by giving evidence against the Appellant? I must say the fact that PW1 is the wife of ‘Taiye Jaiyesola’ (who can at best be regarded as an accomplice) without more is
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not sufficient enough to deem PW1 as a tainted witness. PW1 is not a tainted witness as she was merely a spectator who from the testimony elicited during trial is merely a witness to the commission of the crime, hence her evidence.
Moreover, it is evident from the evidence on record that she was at the centre of the fight that led to the stabbing of the deceased. According to PW1, she was the one sent by the deceased to buy the ‘small stout’. It is therefore safe to conclude that evidence of PW1 is of such nature that requires corroboration.
The meaning and nature of corroboration was aptly stated by LORD READING C.J., in the old English case of R. v. BASKERVILLE [1916] 2 K.8.658 at 667 in the following words:
“We hold that evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him, that is, which confirms in some material particular not only the evidence that the crime has been committed, but also that the prisoner committed it. The test applicable to determine the nature and extent of the corroboration
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is thus the same whether the case falls within the rule of practice at common law or within that class of offences for which corroboration is required by statute. The language of the statute, ‘implicate the accused’, compendiously incorporates the test applicable at common law in the rule of practice. The nature of the corroboration will necessarily vary according to the particular circumstances of the offence charged. It would be in high degree dangerous to attempt to formulate the kind of evidence which would be regarded as corroboration, except to say that corroborative evidence is evidence which shows or tends to show that the story of the accomplice that the accused committed crime is true, not merely that the crime has been committed, but that it was committed by the accused….”
The essence of corroboration is not to affirm that an offence has been committed but to give support to the assertion of the prosecution that it is the accused person that committed the offence he is charged with. See OGUGU v. THE STATE [1994] 9 NWLR (Pt. 366) 1. In the words of KALGO, JSC in IKO v. THE STATE [2001] 14 NWLR (Pt. 732) 195; (2001) LPELR-1480, 13, paras
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F-G, “the purpose of corroboration is not to give validity or credence to evidence which is deficient or suspect or incredible but only to confirm and support that which as evidence is sufficient and satisfactory and credible; and corroborative evidence will only fill its role if itself is completely credible evidence.”
Indeed, there are persons who witnessed the commission of the crime and who ought to have been called as witness. Contrary to the finding of the trial Court, PW1 is not the only eye witness to the crime alleged. It is obvious from the record that there were other eye witnesses to the crime. Indeed, one Kayode Isiaka, who was listed as one of the witnesses for the prosecution, made statement to the Police barely two days after the commission of the crime on 25th January, 2005. His statement can be found at pages 6 to 7. He was however not called as a witness and his statement not tendered by the prosecution. A fortiori, PW3 stated in evidence that he took the statement of Taiye Jaiyesola, the husband of PW1, who was initially arrested but later released. The statement, which was not included in the record, was not tendered and Taiye was
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not called as a witness by the prosecution. With respect to the trial Court, the evidence of PW2 and PW3 does not corroborate the evidence of PW1 that it was the Appellant that committed the crime, their evidence at best sought to establish that a crime was committed. The evidence of both the PW2 and PW3 as to the culpability of the Appellant are at best hearsay, being what they were told by other persons. In the words of PW2 during cross-examination by the Appellant’s counsel, at page 61 of the record “I was not there when it happened but I was informed that that was what happened…” while at page 65 of the record, PW3 also stated during cross-examination thus: “I am not an eye witness to this murder. What I know about this matter are what I gathered from other witnesses.”
I am of the firm view that contrary to the findings and conclusion of the trial Court regarding the evidence of PW1, the Court ought to have exercised restraint and wary in relying and believing wholesomely the evidence of PW1, Kehinde Ibrahim, who as earlier noted is not the only eye witness to the crime. The prosecution ought to have made efforts to adduce other credible evidence
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to corroborate the evidence of PW1 as to the fact that it was the Appellant that stabbed the deceased. Although, the law is that the prosecution is not bound to call every eye witness to a crime or put differently, unless where the law prescribes otherwise, there can be conviction of an accused person based solely on the evidence of a sole witness; however, where as in the instant case, the evidence of the only eye witness, PW1, called as witness by the prosecution is such that will require other credible evidence before a conviction can be reached, it is incumbent on the prosecution to call other witness or lead other credible evidence in proof of the case against the Appellant. I believe the evidence of Kayode Isiaka and Taiye Jaiyesola, would have helped in this regard.
The summation of the foregoing is that while it may be said that the prosecution was able to show that Kolawole Lateef Alaran died and his killing was unlawful, the prosecution, I must firmly say failed to establish beyond reasonable doubt that it was the Appellant that killed the deceased. Proof beyond reasonable doubt as required in criminal trials of this sort is predicated on the
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constitutional presumption of innocence. Ipso facto, it does not admit of any fanciful plausibilities, the proof must be of such high degree of cogency that it leaves only a remote possibility it is not the accused person that committed the crime alleged. See BAKARE v. THE STATE (1987) LPELR-714 (SC). Where doubt exists in the mind of the Court in a criminal matter, it ought and indeed must be resolved in favour of the accused person. See ABEKE v. THE STATE [2007] 9 NWLR (Pt. 1040) 411 SC; EDET v. THE STATE (1988) LPELR-1008 (SC).
Evidently, the lower Court erred in the approach adopted in reaching the conclusion that the Appellant was guilty of the offence charged. The learned trial judge had indeed failed to consider the apparent and material contradictions in the three statements made by the Appellant to the Police at various times and the denial of the Appellant that he did not make Exhibit ‘A’, failure of the prosecution to call the recorder of Exhibit ‘A’, the premature finding of the trial Court as to the guilt of the Appellant at the stage of trial within trial prejudicing the constitutional presumption of innocence in favour of the Appellant,
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the evidence of PW1 which to my mind, requires corroboration as well as the hearsay evidence of PW2 and PW3 that it was the Appellant that stabbed the deceased, and finally, the error of the trial Court in attaching probative value to Exhibit ‘A’ and failing to consider the effect of Exhibit ‘E’. No doubt, the irregularities in the prosecution and proceedings at the lower Court create doubts which ought and is hereby resolved in favour of the Appellant.
Therefore, the sole issue adopted for the resolution of this appeal is resolved in favour of the Appellant.
On the whole, this Appeal succeeds and is hereby allowed. The conviction and sentence of the Appellant by the trial Court, per OLUWAYEMI, J., on the 2nd day of July, 2007 are hereby quashed and the Appellant is hereby discharged and acquitted.
Other Citations: (2016)LCN/8926(CA)
