Olayinka Afolalu V. The State (2007)
LawGlobal-Hub Lead Judgment Report
JUMMAI HANNATU SANKEY, J.C.A.
Olayinka Afolalu, the Appellant herein, was arraigned on a two count charge of armed robbery before the High Court, Ado Ekiti, Ekiti State. The charge against him, as contained at page 2 of the record, of proceedings of the Court below, reads as follows:
”That you Olayinka Afollalu (M) on or about the 27th day of April, 2002 at Igede road, Ilawe-Ekiti, Ekiti State of Nigeria robbed one Idowu Fanikun (F) of the sum of Two Hundred and Twenty Five Naira (N225.00) and at the time of the robbery, they were armed with offensive weapons to wit: guns and thereby committed an offence contrary to section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act Cap. 390 Vol. XXII Laws of the Federation of Nigeria, 1990 as amended by Tribunals (Certain Consequential Amendment) Decree No. 62 of 1999.
COUNT II
That you Olayinka Afolalu (M) on or about the 22nd day of April, 2002 at Igede road, Ilawe-Ekiti in Ekiti State of Nigeria robbed one Mary Ogunsakin (f) of the sum of One Thousand Seven Hundred and Fifty Naira (N 1750.00) and at the time of the robbery you were armed with offensive weapons to wit: guns and thereby committed an offence contrary to section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act Cap. 398 Vol. XXII Laws of the Federation of Nigeria, 1990 as amended by Tribunals (Certain Consequential Amendments, etc) Decree No. 62 of 1999. At the trial, four witnesses testified for the prosecution. The Appellant in turn testified in his defence and called three other witnesses. Both learned Counsel for the prosecution and the defence addressed the Court on the facts and the law arising in the case. Thereafter, the learned trial Judge entered Judgment wherein he discharged and acquitted the Appellant on Count one of the charge while he convicted him on Count two of the charge. Following the conviction, the Appellant was sentenced to death by hanging. Being dissatisfied, the Appellant has appealed his conviction and sentence. In this regard, the Appellant filed his Grounds of Appeal along with his Notice of Appeal on the 31st August, 2005. In addition, by an application dated 29th January, 2007, he filed an Additional Ground of Appeal with the leave of Court. The original Grounds and the Additional Ground, shorn of their particulars, state as follows:
“GROUND 1
The verdict or the Judgment of the trial Court is unreasonable and cannot be supported having regard to the evidence before the Court.
GROUND 2
The learned trial Judge erred in law when he held that there were contradictions and inconstancies (sic) between the statements of the accused person to the Police and the evidence on oath in support of alibi.
GROUND 3
The learned trial Judge erred in law when he held that “I am of the view that prosecution have established their case against the accused person beyond reasonable doubt. I find no material contradiction in the evidence of PW1 and PW2to warrant the Court to hold that same is sufficient to be equated to substantial or sustainable disparagement to weaken the case of the prosecution.”
GROUND 4
The learned trial Judge erred in law when he held that “In the instance (sic) case considering the evidence of PW1, PW2 and PW4, I am of the view that their evidence pins the accused person to the armed robbery incident of 27/4/2005.”
GROUND5
The learned trial Judge erred in law by convicting the Appellant on the evidence of prosecution witnesses based on mere suspicion.”
ADDITIONAL GROUND OF APPEAL
The trial Court erred in law on the ground that the charge was not read over to the accused nor a plea obtained from him before the commencement of trial.
At the hearing of the Appeal on the 16th October, 2007, the Appellant’s Counsel, Mr. Abiodun Dada, adopted the Appellant’s Brief of Argument dated 19th February, 2007 and filed on the same date. He also adopted the Appellant’s Supplementary Brief of Argument dated 2nd and filed on 4th October, 2007. He urged the Court to allow the Appeal and set aside the Judgment of the trial Court, quash the sentence and discharge and acquit the Appellant. Mr. Gboyega Oyewole, the Attorney General of Ekiti State, also adopted the Respondent’s Brief dated 8th and filed on 9thOctober, 2007. Concerning the submissions of the Appellant in the Supplementary Brief stating that the Supplementary Record should not be countenanced, the learned Attorney General submitted that the Supplementary Record filed with the leave of this Court is a certified true copy of the proceedings of the lower Court on the 13th March, 2003. This being so, there is a presumption of genuineness of the record pursuant to Sections 114 and 115 of the Evidence Act. Secondly, on the matter of an identification parade raised under issue number three of the Appellant’s Brief, learned Counsel submitted that it was not necessary to have conducted such a parade because the witness positively identified the Appellant before he was arrested. He relied on the case of Balogun VA.G. Ogun State (2002)6NWLR (Pt. 763) 512 at 534. He urged the Court to dismiss the Appeal. The Appellant, in his Brief of Argument, identified three issues for the determination of the Court in this Appeal thus:
- Whether the failure to properly arraigned (sic) the Appellant in court, and his pleas taken is not germine (sic) to the entire proceeding upon which the Appellant was convicted and subsequently sentenced. Additional Ground of Appeal.
- Whether the prosecution proved its case against the Appellant beyond reasonable doubt. Grounds 1, 3 and 5.
- Whether, by the circumstances of this case, identification parade is not a necessity to determine the culprit in the case. Grounds 2 and 4. Mr. Oyewole, Learned Attorney General appearing for the Respondent, agreed with the Appellant’s Counsel on the issues arising for determination in this Appeal and as a consequence adopted same.
On an assessment of the issues formulated vis a vis the Grounds of Appeal before the Court, I also agree that the issues formulated substantially address all the matters that arise for determination in this Appeal. I shall therefore take them as addressed.
Issue One.
Whether the failure to properly arraign the Appellant in court, and his pleas taken is not germane to the entire proceeding upon which the Appellant was convicted and subsequently sentenced. Additional Ground. Under this issue, it is submitted that on the 8th October, 2003, when trial commenced, the plea of the Appellant was not taken and this state of affairs persisted right to the end of the trial on the 9th June, 2005. By failing to take the plea of the Appellant before the trial, learned Counsel submitted, the learned trial Judge contravened Section 215 of the Criminal Procedure Law Cap 31 Vol. 11 Laws of Ondo State of Nigeria applicable in Ekiti State. Learned Counsel further submitted that this non-compliance has rendered the entire proceedings a nullity. He relied on the cases of Nworie V AG Ogun State (2004) 4 FR 159; Kajubo V the State (1988) 1 NWLR (Pt. 73) 791; Josiah V the State (1985) 1 NWLR (Pt. 9) 125; Ere Kanure V The State (1993) 5 NWLR (Pt. 294) 385; Kalu V The State (1998) 13 NWLR(Pt. 583) 531 at 561-563 and Hussaini Barma V The State (2000) NWLR (Pt. 641) 424 at 437-438. Learned Counsel urged the Court to resolve this issue in favour of the Appellant and declare the trial at the lower Court null and void, and so to quash the conviction and sentence based thereon. Furthermore, he urged the Court not to order a re-trial as such would work injustice on the Appellant who has already spent five years in prison custody and it would be oppressive for the him to be tried a second time. He relied on Yesufu Abodunde V The Queen (1959) 4 JSC 70 at 73-74; Awka V The State (1969) 1NWLR 133; Kajubo V The State (Supra); Joseph Okosun V the State (1979) 3 & 4 SC 36. On this issue, the learned AG was in agreement with the Appellant’s Counsel that an accused person standing trial for any criminal offence must be validly arraigned before his trial can stand in law. Such a valid arraignment consists of charging the accused and reading over and explaining the charge to him to the satisfaction of the court followed by taking of the plea. He equally referred to Kajubo V The State (Supra); Tobby V The State (2001) 4 SC (Pt. 11) 160 at 165 and Yahaya V The State (2002) 3 NWLR (Pt. 754) 289 at 291-292. He agreed that the arguments of the Appellant’s Counsel and the authorities cited by him on this point represent the correct position of the law. He however contended that the Appellant’s arguments on this go to no issue as they are not relevant and applicable to the instant Appeal in that the plea of the Appellant was properly taken and recorded by the Court on the 13th March, 2003. It is submitted that the Record of Proceedings where the plea of the Appellant was taken by the trial Court was inadvertently omitted during the compilation of the record of Appeal in this case. The proceedings of 13th of March, 2003 has since been compiled and filed before this Court as the Supplementary Record of Appeal with the leave of this Court granted on the 27th September, 2007. He therefore submitted that there was a valid arraignment of the Appellant. Learned AG referred us to the Supplementary Record of Appeal already filed and properly forming part of the record before this Court. In consequence of this, he urged the Court to discountenance all the submissions bf the Appellant on this issue.
For the arraignment of an accused person to be valid and proper, the following conditions contained in Section 215 of the Criminal Procedure Act, Cap. 80 Laws of the Federation of Nigeria, 1900, which is in pari materia with Section 215 of the Criminal Procedure Law Cap 31 Vol. 11 Laws of Ondo State of Nigeria applicable in Ekiti State, must be complied with:
(i) The accused shall be placed before the court unfettered unless the court shall see cause to otherwise order;
(ii) The charge and information shall be read over and explained to him to the satisfaction of the court by the registrar or other officer of the court; and
(iii) he shall then be called upon to plead instantly thereto (unless there are valid reasons to do otherwise/as provided for in section 100 of the criminal procedure Act). It is worthy of emphasis that any failure t observe strictly the above provision will render the whole trial a nullity. See Olabode V The State (2007) ALL FWLR (Pt. 389) 1301; Kajubo V The State (1988) 1 NWLR (Pt. 73) 721; Eyoro Koromo V The State (1979) 6-9 SC 3. Therefore, it is the law that before any person is tried before our Courts of law, he must be properly arraigned. In other words, he must be informed in a language he understands of the charge against him. Section 36 (6) (a) of the Constitution of the Federal Republic of Nigeria. Thereafter, he is required to plead to the charge. Where such is not done, it is a fundamental breach of the tenets 1of fair hearing as entrenched in our Constitution, and any resultant trial based on this defect is a complete nullity. In the instant case, it is true that nowhere in the original record of proceedings filed before this Court is it indicated that the Appellant was arraigned charged and his plea taken. However, the Supplementary record of proceedings duly certified and subsequently filed on the 9th October, 2007 with the leave of Court confirm that the Appellant was actually arraigned before the trial Court on the 13th March, 2003. Both learned Counsel for the Respondent and the Appellant are named on the record. The charge was read and explained to the Appellant both in English language and in Yoruba, a language he was said to understand. The record goes on to show that the Appellant pleaded not guilty on both counts of charge. Where upon the Court adjourned the matter to certain fixed dates for hearing.
In the Appellant’s supplementary Brief of Argument, learned Counsel has sought to impugn the integrity of the Supplementary Criminal Appeal Record by alleging in essence that it was forged in the name of the learned trial Judge, was signed by the Higher Registrar of Court instead of the learned trial Judge and that same is not certified. He contends that the Supplementary Criminal Appeal Record contains two pages numbered pages 38 and 39. He referred to the Original Record of Appeal which is numbered pages 1 to 95. He posits that since the Original Record of Proceedings compiled and forwarded to this Court contains its own pages 38 and 39 which are quite different in content to the two pages now filed as the Supplementary record, there is no nexus between the two. It is further his submission that from the Original Case file of the trial Court I transferred to this Court and from where he purports that the Supplementary Record was extracted, there is only the endorsement of the Higher Registrar at the back of the file, which is dated and signed by him as “H/R”. Learned Counsel I submits that this notation at the back of the Original Case File is not the trial Judge’s Record of Proceeding, is not signed by the Judge and cannot be taken as the Record of Proceedings. He further contends that the Higher Registrar who signed cannot double as a Judge and it is not his duty to take the plea of the accused person. He went on to contend that the endorsement of the Higher Registrar of the 13th March, 2003 on the said, file is materially different from what is contained at page 39 of the Supplementary Criminal Appeal Record. He therefore concluded that the content of page 39 of the Supplementary Criminal Appeal Record is a figment of the imagination of the prosecution to secure the conviction of the Appellant at all costs.
For a start, alteration of a public record such as the Record of Proceedings of a court of record is a very serious allegation. For this Court to act on such a grave allegation, it must be established to the standard required by law. Learned Counsel should know better ,than to make such weighty allegations flippantly without going the whole hog Ito prove same. I have taken time to examine the Supplementary Criminal Appeal Record filed with the leave of this Court on the 9th October, 2007 in the light of these weighty allegations. It is said to be the compiled record of the lower Court which was omitted in the compilation of the Original Record of Proceedings forwarded to this Court. The copies in this Court’s file, (by which we are bound), do not bear the numbering , “38” and “39” as alleged in the Appellant’s Supplementary Brief of Argument. Indeed, they contain no numbering at all. Secondly, contrary to the assertion in the Brief, they are duly certified as a ,true copies of their original by one Owolabi, K.A., Higher Registrar Litigation Department, High Court Registry, Ado-Ekiti and the certification is dated 5th October, 2007. As to the signature on the said Supplementary Criminal Record, just like in the Original Record of Proceedings, it is indicated therein that the proceedings of 13th March, 2003 were presided over by His Lordship Hon. Justice M.O. Abodunde and duly signed by him. There is therefore a presumption of genuineness; of the Supplementary Record pursuant to Sections 114 and 115 of the Evidence Act. In addition, due to the critical nature of the very grave allegations contained in the Supplementary Brief of Argument, we have proceeded to examine the Original Case File of the lower Court forwarded to this Court and referred to by learned Counsel to the Appellant in his Supplementary Brief of Argument, in order to ascertain the legitimacy of the allegations made therein. indeed, the first minute at the front cover of the file contains the endorsement of the Higher Registrar which the learned Counsel to the Appellant has alluded to. With the greatest respect, from my very modest experience on the Bench these notations are made, not by the Higher Registrar, but by the Clerk of Court at the end of each day’s proceedings giving a synopsis or summation of what transpired in Court on the said date. For clarity and ease of argument, I will reproduce the said offensive notation hereunder:
”13-03-03:- Hon. justice M.O. Abodunde – judge
Accused in court S.O.Akinwumi for the State.
Miss Udevbore holding brief of Ch. Idowu Ayenimo for the accused person.
Seen- Plea of the accused person was taken.
H/R – Accused pleaded not guilty for both Count I & II Ct. Case is adj to 22nd and 23rd of April, 2003.
CR.R.BK. VOL I Folio 135″
After this notation, there a numerous similar notations covering the front cover, the inside front cover, the inside back cover, the back cover, etc, recording the happenings in Court on each subsequent adjournment of the court. Each of these notations contains the following endorsement at the side: “Seen. H/R.” From the above, it is clear, at least to me, that this is evidently the minute of the Clerk of Court and the endorsement of his supervising officer, the Higher Registrar who has the acronym “H/:’R”. For the actual record of the proceedings of the 13th March, 2003, the Appellant would need to go to the Criminal Record Book Volume 1 page 135 as indicated in the minute of that day. If the Appellant therefore has issues with the Supplementary Criminal Appeal Record forwarded to this Court, he would need to go to the actual Record of Proceedings of the Court below and not to the Original Case file. It is a matter of public knowledge, of which we take judicial notice, that most Superior Courts of Record take down their proceedings in Record Books and not in Case files. Therefore, in order to attack any record of the Court below, the Appellant would necessarily have to attack the actual record of Proceedings of the Court as contained in its record book, which record has not been forwarded to this Court, and not go to the Original case file, which contains only Court processes and the typed Judgment of the trial Court.
In the face of all these, I find all the allegations in respect of the alteration of the Supplementary Criminal Appeal Record before the Court highly spurious and not established. It is therefore discountenanced. Consequently,there being sufficient proof that the Appellant was duly arraigned before the trial Court and his plea properly taken on the 13th March, 2003, this issue is resolved against the Appellant. The Additional Ground of Appeal therefore fails.
Issue Two.
Whether the prosecution proved its case against the Appellant beyond reasonable doubt. Grounds 1, 3 and 5. Under this issue, it is submitted by learned Counsel for the Appellant that the prosecution failed to discharge the burden on it to prove the case beyond reasonable doubt because of the material contradictions in its case. This has created doubt in the mind of the Court which the Appellant asks should be resolved in his favour. The first contradiction highlighted is in respect of the evidence adduced by the prosecution through the PWI and PW2 as to date of the incident. Whereas the PWI first testified that the Appellant came to their house on the 22nd April, 2002, she later testified that it was on the 27th April, 2002. PW2 on the other hand stated that it was on the 27th April, 2002 that the Appellant robbed them in the house. He contended that this contradiction in the evidence of the PWI and PW2 has created a doubt as to whether there was I another allegation of robbery against the Appellant apart from this one. He urged the Court to resolve the doubt in favour of the Appellant.
The second contradiction is in respect of the venue of the robbery. Learned Counsel referred to the testimony of the PWl wherein she testified that she lives at 5 Aiyegunle Street, Eyio Ekiti and that the Appellant came to rob them at their house. It is his understanding that this presupposes that the robbery took place at that address yet the charge against the Appellant stated I that the robbery took place at Igede road, lIawe-Ekiti Ekiti State of Nigeria.
Furthermore, it is submitted by learned Counsel that the testimonies of PW3 and PW4 completely exonerated the Appellant in that they testified that the Appellant, upon his arrest, denied the allegation of robbery and a search at his house revealed nothing incriminating such as a weapon. Learned Counsel identified other evidence of contradictions allegedly in the evidence of PW1 and PW2cencerning who, among the PW2 and the landlady answered the robbers when they inquired about the Councilor and whether or net the PW1 was locked up in the toilet with her mother. He asked that these contradictions, which he termed material, be resolved in favour of the Appellant.
The final submission on this issue is that the Exhibit A, the statement of the Appellant is inadmissible in law because, after it was admitted in evidence, the Appellant alleged as follows: ‘The statement was read to me after I made it. I signed it after I was beaten.” He contended that the trial Court acted contrary to, Section 28 of the Evidence Act in admitting the document in evidence. However, be that as it may, it cannot be acted upon even if the litigants consented to, its admission without raising any objection since litigants cannot by consent, waiver or acquiescence confer jurisdiction on a court where none exists. He therefore urged the Court to, resolve this, issue in favour of the Appellant and set aside the conviction and sentence of the Appellant.
In his response, the learned AG for the Respondent submitted that the submission on the purported contradiction en the issue of the date of the offence is grossly misconceived. The date on which the offence took place is clearly spelt out in the charge. All the evidence adduced by the prosecution is agreed an the date of the offence being an 27th April, 2002. In addition, the Appellant himself made reference to the same date while being cross examined. It is further submitted that, assuming without conceding that there was a contradiction in dates, such a contradiction is net so, material as to, warrant a reversal of the verdict of the trial Court, as it is not all contradictions in the testimony of the prosecution’s witnesses that are fatal to its case or that entitles an accused to an acquittal. For a contradiction/to be fatal to the prosecution’s case, it must be material to the main issue in the case or touching on the ingredients of the offence charged. He relied on Ndike V The State (1994) 8 NWLR (Pt. 360) 36; Sele V The State (1993) 1 NWLR (Pt. 269) 156. He contended that the prosecution, having proved the ingredients of the offence, the one time in which the PW1 mentioned the 22nd April, 2002, cannot be a material contradiction which is fatal to the prosecution’s case. In addition, it is submitted that this issue of date was never raised at the lower Court by the Appellant and so is being raised for the first time in this Court and without leave. Learned Counsel submitted that he cannot do so He relied on Offorlete V The State (2000) 7 SCNJ 17; Bamaiyi V AG Federation (2001) 11 SCNJ 80.
In respect of the contradiction concerning where the offence took place, learned Counsel submitted that all the prosecution witnesses testified that the armed robbery incident took place at Igede road in IIawe Ekiti in Ekiti State of Nigeria. He submitted that where the PW1 lives, i.e. No. 5 iyegunle Street, Eyio Ekiti, does not necessarily in law connote where the offence occurred except where so testified to by such witness and supported by other facts and circumstances of the case. On the authority of INC V Nobil Nig. Plc (1999) 5 NWLR (Pt. 601) 1 at 14, a court of law, is enjoined to do justice and not to allow itself to be entangled in the web of legal technicality.
In respect of the testimony of the PW1that she was raped yet she was locked up in the toilet, learned Counsel submitted that the scenario painted by learned counsel for the Appellant I constituted a gross misconception and distortion of the sequence of events that occurred during the robbery.
On the issue of the Exhibit A, the extra judicial statement of the Appellant to the police learned Counsel submitted that it was rightly admitted in evidence by the trial Court as no objection was raised to its admission. Assuming without conceding however that Exhibit A was inadmissible on the ground of involuntariness, and that the objection now being raised before this Court is proper, the task of doing justice will necessarily involve a mini trial to determine the voluntariness or otherwise of the statement. He contended that this does not fall within the purview of an appellate court in a case of this nature as an appeal is not an initiation of a new case but rather a continuation of the existing one. He contended that the facts and circumstances of this case reject the principle of law enunciated in the case cited by learned Counsel for the Appellant on this issue and should not be forced on this appeal. Learned Counsel further argued that even if Exhibit A is left out, there are still credible pieces of evidence which establish the participation of the Appellant in the robbery.
Learned counsel submitted further on this point that it is the law that wrongly admitted evidence will not necessarily lead to a reversal of the judgment complained against, especially where, leaving out the evidence complained against, there are other, pieces of evidence which will still sufficiently establish the guilt of the accused person. It is further submitted that for an Appellant to get a reversal of the judgment appealed against, he must show that that the error of the lower court against which he now complains has led to a miscarriage of justice or that, had the error not been made, the judgment would have been different from what if is. Madagali L.G. V N.N.P.C (1998) NWLR (Pt. S72) 66 at 73. He urged the Court to hold that this is not the case in the instant appeal. He therefore submitted that it is not every contradiction in the prosecution’s case that is fatal except where such contradiction is material to the ingredients of the offence charged. The question of materiality of a contradiction depends on how crucial the point in issue is. Oduneye V The State (2000) FWLR (Pt. 13) 2289. He contended that all the instances chronicled by the Appellant do not meet the requirements of material contradictions. Learned Counsel finally urged that this issue be resolved against the Appellant.
On this issue of contradictions, it is pertinent to establish from the onset how the law treats same with a view to determining what, if anything, should be done should the Court find substance in this ground. Contradictions are fatal to the prosecution’s case only when they are material, substantial and fundamental
to the main issue or issues in controversy thus creating doubt that the accused is entitled to benefit from. Dominic Princent & Another V The State (2002) 12 SCNJ 280. Contradictions which do not affect the substance of the issue to be decided are irrelevant. Anthony Isibor V The State (2002) 2 SCNJ 162. It is only those contradictions which raise doubt/about the guilt of the accused person that will be considered adequate to affect convictions in criminal cases. Edet Okon Iko V The State (2001) 7 SCNJ 382. It is therefore not every contradiction, that will result in upsetting a judgment. Ifeanyichukwu Ejeka V The State (2003) 4 SCNL 161.
I have therefore examined the instances of the contradictions enumerated the Appellant in the light of these decisions. On the issue of the date the offence was committed, it is true that at the onset of the PW1’91s testimony, she stated that the Appellant came to their house to rob them on the 22nd April, 2002. In the very next breath, she stated that it was on the 27th April, 2002 that the Appellant came and she went on to give a graphic description of what transpired thereafter. PW2 in her own testimony clearly stated that the incident occurred on the 22nd April, 2002. PW4, the Police Officer detailed to investigate the incident stated that on the 28th April, 2002. PW2and PW1 reported a case of robbery and rape against the Appellant. He confirmed that PW1 confirmed to him that she could identify the people who came to heir house on the night of the 27th April, 2002. Based on all these pieces of evidence, the Appellant was charged to court for trial. A close look at the two count charge reveals that he Appellant was duly charged for the offence of armed robbery committed on the 27th April, 2002. Therefore, even though it is true that the PW1 initially mentioned that the Appellant came to their house on the 22nd April, 2002, the subsequent evidence before the Court and the charge against the Appellant clearly showed that the incident occurred on the 27th April, 2002. This is therefore a minor inconsistency in the evidence of the PW1 and not a contradiction, and the Appellant was in/no way misled thereby. This is more so that the Appellant in his testimony is DWI made specific reference to the robbery incident of 27th April, 2002 and all three witnesses called by him made extensive explanations as to the Appellant’s movements on 27th April, 2002 and no other date. It is therefore quite apparent that the inconsistency in the testimony of the PW1 was not material or substantial such that could cast doubt over the guilt of the Appellant.
Ancillary to this, I agree with learned Counsel for the Appellant that the issue of dates was never raised at the lower court by the Appellant and so it is being raised for the first time in this Court and Without the requisite leave. This is patently wrong. The Appellant cannot do so. See Offorlete V The State (Supra); Bamaiyi V AG Federation (Supra). A fresh point not taken in the lower court is incompetent unless prior leave is obtained. The only exception being when it concerns an issue of jurisdiction. See Benson obiakor V The State (2002) 6 SCNJ 193.
The next alleged contradiction highlighted concerns the venue of the robbery incident. The Appellant has alleged that a contradiction is implicit in the evidence of the PW1 concerning this. I have looked at the evidence of the PW1 referred to and I am very hard put to see/such a contradiction as referred to by the Appellant. For clarity, it may be pertinent to briefly reproduce the portion of the testimony of PW1 on the point raise. At page 6 of the record of the lower Court, this is what the PW1 said:
“My name is Ogunsakin Ifedayo I am a student, I live at No 5 Aiyegunle Street Eyio Ekiti… ”
Subsequently, the PW4 testified as to how the incident at lIawe Ekiti was reported at his Divisional Crime Office and he was detailed to investigate. It was after his investigation that the Appellant was subsequently charged. The two count charge against the Appellant/ at page 2 of the record clearly set out the venue of the robbery as Igede road. IIawe Ekiti. I agree with learned Counsel for the Respondent that nowhere in the testimony of the PWI did she say that the incident occurred at her present address which she gave the Court as No. 5 Aiyegunle Street, Eyio Ekiti. It would seem that learned Counsel for the Appellant has imported facts by drawing conclusions of , what is not contained in the witness’ testimony. The fact that she gave her address as Aiyegunle Street, Eyio Ekiti, is no reason to jump to the wrong conclusion that the incident occurred there, in the absence of any express testimony to that effect. It must be borne in mind that whereas the incident occurred on 27th April, 2002, the witness testified on 8th October, 2003. I therefore agree that the Appellant’s submission on this score is totally misconceived.
On the contradiction in the evidence of PW1 and PW2concerning who between the PW2 and the landlady responded to the question of the armed robbers on the Councilor, I find that whatever contradiction may have been between the evidence of the PW1 and PW2on this point is entirely immaterial to the case. In the normal course of events, it is to be expected that witnesses may not always speak of the same facts and events with equal and regimented accuracy. This is so particularly when they speak from fairly faded memories in respect of a matter they consider from Slightly different perspectives and with unequal emphasis. One should not expect that the evidence of the PW1 and PW2 as to details should be perfectly the same. If it were to be so, it would be both unnatural and suggestive of the fact that they had actually been schooled as to what to say in court. The law does not insist that there must be no contradictions in the evidence of witnesses called by a party on any issue in contention. The principle is that the contradictions between witnesses should not be material to the extent that they cast serious doubts on the case presented as a whole by the prosecution or as to the reliability of its witnesses. See Nwokoro V Onuma (1999) 9 SCNJ 63. The contradictions in the evidence in question are not only insubstantial but are also immaterial.
In respect of the testimony of the PW1 that she was raped and yet she was locked up in the toilet, I agree with learned counsel for the Respondent that the scenario painted by learned Counsel for the Appellant is a gross misconception and distortion of the sequence of events that occurred during the robbery. A cursory glance at the testimony of the PWI at page 7 of the record will settle this:
“… The children and my mother were locked inside the toilet. I was then asked to lead them to our flat and to give them money…I gave them N1,750.00 inside my mother’s bag so I gave it to them… Three of the men now raped me, the accused standing before the court was the very right person who raped me. I was now locked with my mother in the toilet I said I know the three out of them… When it was very late at about 4 hours later, it was obvious they had gone we came out of the toilet…” There is clearly no contradiction implicit in this evidence. Rather, with the greatest respect, it is an utter failure by the learned Appellant’s Counsel to grasp the import of the evidence.
Finally on this issue is the point raised by the Appellant that the Exhibit A, the statement of the Appellant is inadmissible in law because, after it was admitted in evidence, the Appellant in his evidence in defence of the charge alleged that he signed it after he was beaten. He contended that the trial Court acted contrary to Section 28 of the Evidence Act in admitting the document in evidence. A look at page 14 of the record of the lower Court reveals that when all the statement was sought to be tendered through the PW4, the Appellant, who all along had been represented by Counsel, raised no objection. The trial Court therefore proceeded to admit same in evidence as Exhibit A. At this point, I must find that it was rightly admitted in evidence by the learned trial judge, there being no objection raised to its admission It is to be noted that this issue was never canvassed at the trial Court and the Appellant has once again merely, taken the liberty to raise same without the leave of this Court being sought and obtained. I have already found earlier in the body of this judgment that this is improper as the lower Court must have been given an opportunity to pronounce on the issue before it can be the subject matter for review by an appellate court.
The exception of course is where the issue raised is one of jurisdiction which can be raised at any time, even for the first time at the Supreme Court. Since this is clearly not an issue of jurisdiction but an issue of fact which would, as a matter of fact, require the holding of a trial within trial to determine the Voluntariness or otherwise of the said Exhibit A, the Appellant is not allowed to canvass it at this stage of the proceedings without leave. Besides, even if Exhibit A is left out, there are still credible pieces of evidence which establish the participation of the Appellant in the, robbery, such as the PW1’s prompt identification of the Appellant at the earliest opportunity which can, alone in law, ground the conviction of the Appdlant even in the absence of the Exhibit A. See Adeniran V Alao (2002) 1 SCNJ 1 25 -27 and Olalekan V The State (2002) 2 SCNJ 104 at 113. Wrongly admitted evidence will not necessarily lead to a reversal of the judgment complained against, especially where, leaving out the evidence complained against, there are other pieces of evidence which will still sufficiently establish the guilt of the accused person. For an Appellant to get a reversal of the judgment appealed against, he must show that that the error of the lower court against which he now complains has led to a miscarriage of justice or that, had the error not been made, the judgment would have been different from what it is. Madagali L.G. V N.N.P.C (1998) NWLR (Pt. 572) 66 at 73. I hold that this is not the case in the instant Appeal.
In the result, I find that there is no reason to tamper with the finding of the learned trial Judge at page 74 of the record where he found thus:
”I do not agree with the learned Defence Counsel that there are contradictions and inconsistencies which affect the fact that indeed there was a robbery, that the accused person was one of the robbers and that he was armed during the robbery though both witnesses said no gunshot I was fired because they cooperated.”
A thorough evaluation and appraisal of the evidence adduced before the trial Court shows that the learned trial Judge arrived at the justifiable and unimpeachable conclusion that the contradictions pointed out by the Appellant were not material contradictions. Whether evidence is material or not depends on the issues in the case. In this case, the issue is whether the Appellant was one of the robbers on the date in question and whether they were armed. It will not be of any help to the Appellant to ignore the substance of this case and to go chasing shadows. The second issue is consequently resolved against the Appellant. Grounds 1, 3 and 5 fail.
Issue Three.
Whether by the circumstances of this case identification parade is not a necessity to determine the culprit in the case. Grounds 2 and 4. Learned Counsel for the Appellant submits on this issue that since the Appellant was not arrested at the scene of crime and considering the time the allege offence was committed, proving the Appellant’s identity became mandatory. He submitted that in view of the totality of the evidence before the Court, the proper and only valid procedure by which the prosecution could have proved the identity of the Appellant and so proved its case beyond reasonable doubt was to, have conducted an identification parade. Archibong V The State (2004) 1 NWLR (Pt. 855) 488 at 509-510. From the PW1’s evidence, he deduced that the offence was committed between about 8.25pm am 1.00am, there was no electricity and the place was dark except for the moonlight. PW2 stated upfront that she could not identify the robbers. DW1, DW2, DW3 and DW4 testified as to, where the Appellant was between 8.25pm and 10.00pm. The prosecution failed to, investigate the Appellant’s alibi. It is his submission that this therefore discredits the prosecution’s case. He contended that there is no evidence to, corroborate the testimony of the PW1 and to, link the Appellant to the scene of crime. There was therefore no identification of the Appellant. Ukpabi V the State (2004) ALL FWLR (Pt. 218) 815. In respect of rape, he contended that the prosecution failed to prove the allegation. He submitted that since the Appellant is not the rapist and was discharged and acquitted an the first count of charge, he is equally not guilty on the second count of charge. He urged the Court to so hold and to resolve this issue in favour of the Appellant. In conclusion, learned Counsel urged the Court to, allow the Appeal, set aside the Judgment of the trial Court, quash the conviction and sentence of the Appellant and discharge and acquit him.
In responding to this issue, learned Counsel for the Respondent submitted that an identification parade is not conducted as a matter of course in all cases where an offence is committed in the night. It is only conducted where a witness claims to, have seen an unfamiliar person escaping from the crime scene in circumstances which require putting to test the power of recognition I based upon the physical features and/or other peculiarities of the person he claims to have seen. Balogun V AG Ogun State (2006) NWLR (Pt. 763) 534; Ogoala V the State (1991) 1NSCC 366. He submitted that from the PW1’s testimony at page 7 of the record, it is obvious that she was not in darkness at the time of the incident since she was reading. She also testified at page 6 of the record that the Appellant had tried on several occasions to establish a relationship with her. The Appellant was therefore not a stranger to her. Also taking into consideration the length of time of the sexual abuse from 8.25pm – 1.00am, PW1 had sufficient opportunity to identify the Appellant, especially as there was no evidence to say the armed robbers were masked. In fact, of the three robbers, PW1 identified the Appellant as the person who raped her first.(See Pages 7-8 of the record). Learned counsel submitted that the encounter between the PW1 and the Appellant was not a fleeting one and coupled with the regularity with which they had been seeing each other prior to the date of the incident, it would not have been difficult for the Appellant to identify the Appellant. The identification of the Appellant therefore did not call for an identification parade of what had been identified with precision. She later confirmed this identification by identifying his clothes and shoes worn on the night of the incident. This is unchallenged and uncontroverted evidence which is deemed to be true and admitted.
On the issue of corroboration of the PW1’s testimony. learned Counsel submitted that the law under which the Appellant was charged and tried does not make corroboration of evidence mandatory. He relied on the principle of law, which says that a Court can and is entitled to act on the evidence of a single credible witness. Ugumba V the State (1993) 5 NWLR (Pt. 296) 660 at 674; Ogoala V The State (Supra) 533.
Learned Counsel further submitted that the failure of the first count of charge has no bearing on the second count of charge. He submitted that the prosecution proved its case against the Appellant beyond reasonable doubt. He urged the Court to refuse the Appeal and to affirm the Judgment of the lower Court.
In general, identification evidence is evidence which tends to show that the person charged with an offence is the same person who was seen committing the offence. Therefore, whenever the Court is faced with identification evidence, it should ensure and be satisfied that the evidence proves beyond reasonable doubt that the accused before the Court was the person who actually committed the offence with which he is charged. See Ikemson V The State (1989) 1 CLRN 1 AT 24. Usually, an identification parade is not a sine qua non for identification in all cases where there has been a momentary encounter with the victim of a crime, especially where there are other pieces of evidence leading conclusively to the identity of the perpetrator of the offence. An identification parade only becomes obligatory in the following situations of visual identification:
(i) where the victim did not know the accused person before and his first acquaintance with him is during the commission of the offence;
(ii) where the victim was confronted by the offender for a very short time; and
(iii) where the victim, due to time and circumstances, might not have had the full opportunity of observing the features of the accused.
Whenever any of these situations occur, it is vital that a proper identification parade takes into account the following:
(a) the description of the accused given to the police shortly after the commission of the offence;
(b) the opportunity the victim had of observing the accused; and
(c) the features of the accused noted by the victim and communicated to the police which marks the accused from other persons.
See R V Turnbull (1976) ALL ER 549; Ikemson V The State (Supra); Maikudi Aliyu V The State (2007) ALL, FWLR (Pt. 388) 1123.
In the instant case, evidence abounds that PW1 knew the Appellant before the incident. She stated in her testimony that she had seen him several times outside Mogambo’s shop and several times he attempted to speak to her. Indeed this explains why, on the morning after the robbery incident, she went to look for him at the same place and predictably he was there. She then invited the police to arrest him. Secondly, the evidence of both PW1 and her mother PW2 is that the robbers were in the house from about 8.25pm to 1.00am, within this period. whereas they locked up the PW2 in the toilet with the little children, they took the PWI to another part of the house where three out of the four robbers took turns in raping her She had sufficient presence of mind to even identify the Appellant as the first person who raped her. Therefore it is safe to say that the PW1 was confronted by the Appellant for an appreciable length of I time as opposed to a short time. Finally, from the evidence of the PW1 and PW2, after the robbers locked up the PW2 in the toilet, they took the PW1 to their flat where she was forced to give them the sum of N1, 750.00 from her mother’s bag. Thereafter, they had their way with her, With the Appellant taking the pride of place as the first to sexually violate her. It is therefore obvious that due to the time and circumstances of the incident, the PW1 had ample opportunity to observe keenly the features of the Appellant. Indeed, his features, as well as those of his co-travellers in crime, must be indelibly sketched in her mind’s eye for all the wrong reasons. Their actions were despicable. This is the most traumatic thing that could ever happen to a 19 year old girl. From all this, it is clear that none of the situations when it would be imperative to hold an identification parade arose in this case. The PW1 was familiar with the Appellant before the incident and made a positive and unequivocal identification of him. In fact, right from the time she was taken back to be locked up in the toilet with her mother, she kept on harping on the fact that she knew the robbers. The PW2 testified that she was constrained to caution her to keep quiet so that the robbers would not hear her and do worse to her. An identification parade in the circumstances of this case had become superfluous. In the event, I am well. I am well satisfied that the Appellant was validly identified by PW1 as one of the armed robbers who came to their house on the night of the 27th April, 2002.
As to the matter of alibi raised subsequently by the Appellant, it is clear from the Exhibit A, the extra judicial statement of the Appellant to the police, which was admitted in evidence without any form of objection from him, that this was not raised at the earliest opportunity upon his arrest to enable the police to investigate same. It was only canvassed in his defence through his testimony and that of the DW2, DW3 and DW4. I am therefore not impressed by the attempt to import the defence of alibi at such a late stage in the proceedings. Hewart, RCJ in the case of R V Liddle (1930) 21 CAR 3 at 13 defines alibi in the following graphic terms:
“When a person charged with an offence says ”I was not at the scene at the time the alleged offence was
committed. I was somewhere else, therefore I was not the one who committed the offence. Alibi is a radical defence and it simply means an accused was somewhere else at the time of the commission of the offence and could not have possibly been on the scene to partake of it. Akpan V The state (2002) 5 SCNJ 301; Ozaki V The State (1990) 1 NWLR (Pt. 124) 92; Nwabuze V The State (1998) 4 NWLR (Pt. 86)16. The facts of the alibi are peculiarly within the Appellant’s knowledge and such witnesses as may be available. He therefore has the onus to disclose such I facts with necessary details and particulars at the earliest opportunity so as to transfer the burden to the police to check them out and deal with them with some finality. See Eyisi V The State (2000) 12 SCNJ 104; (2000) 15 NWLR (Pt. 691) 555. If he does not do so, as in this case, the police cannot be expected to go on a wild goose chase. It is manifestly evident that the defence of alibi was not raised at the earliest opportunity. In addition, the evidence of the Appellant that he was not one of the robbers who robbed the PW1and PW2 on the night in question is sham and watery. As has been well catalogued by the learned trial judge, the evidence of the defence witnesses on this was simply incoherent and plagued with a whole lot of contradictions. This is as opposed to the graphic manner the PW1 described in a detailed form the night she was robbed and raped. I really fail to see how this Court would seriously consider the so-called defence of alibi when:
(a) the Appellant never raised this defence at the earliest opportunity he had; and
(b) during his evidence, he tried to disclaim the voluntariness of his statement to the police which he had hitherto no objection to.
This was too little too late in the day. I reject the Appellant’s attempt to raise this defence of alibi at this late stage. Had the Appellant wanted the police to investigate his purported defence of alibi, he should have, at the earliest opportunity, furnished the police with full details of the alibi to enable the police check on the details. Failure of the Appellant to furnish the particulars of alibi, in my view, weakens this defence. To my mind there is nothing to fault the Judgment of the trial Court in rejecting this most puerile defence of alibi set up as a ruse. See Otunba Sowemimo V The State (2004) 4 SCNJ s146.
On the issue of corroboration of the PW1’s testimony and the submission that because the allegation of rape was not pursued and Count one of the charge failed, the Appellant should have been discharged and acquitted on Count Two also, I hold that this is a submission totally without basis. It is ridiculous and merely diversionary of the main issues arising in this Appeal. I discountenance them. I resolve issue three again in favour of the Respondent. Grounds 2 and 4 fail.
In conclusion, I find this Appeal completely lacking in merit. There is no reason to disturb the findings of the trial Court. The Appeal is dismissed.
Consequently, I affirm the Judgment of the trial Court as well as the conviction and sentence of the Appellant herein.
Other Citations: (2007)LCN/2572(CA)
