“the settled prIncIple of laW Is that, Where, In a crImInal trIal, a statement alleGedly made By an accused person Is souGht to Be tendered In evIdence, and the accused person challenGes It By denyInG ever makInG It, there Is no Issue of admIssIBIlIty raIsed thereBy, and the court WIll Be at lIBerty to admIt It”
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In the Supreme Court of Nigeria
Holden at Abuja
on Friday, the 12th day of April, 2019
Before Their Lordships
Olabode Rhode-Vivour
Kudirat Motonmori olatokunbo kekere-ekun
Chima Centus Nweze
Amina Adamu Augie
Paul Adamu Galinje
Justices, Supreme Court
SC.653/2016
Between
Ogunleye Sanmi………Appellant
And
The State………..Respondent
(Lead Judgement delivered by Hon. Justice Paul Adamu Galinje, JSC)
FACTS
On 9th September 2010, the Appellant and a certain Blessing Idowu (who is at large), allegedly broke into the room of one Opeyemi Obanigba and forced her to take them to her father’s room. The Appellant and Blessing Idowu robbed Opeyemi Obanigba’s father (Mukaila Obanigba), and also forced him to take them to the rooms of his wife and mother. They similarly robbed Mukaila Obanigba’s wife and mother, on entering their rooms.
Subsequently, the Appellant was arrested and arraigned before the High Court of Ondo State, on a two count charge of conspiracy to commit armed robbery and armed robbery pursuant to Section 6 (b) and 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap. R. 11 Vol. 14, Laws of the Federation of Nigeria 2004. During the trial, the Prosecution tendered the Appellant’s extra-judicial statement (Exhibit A), but the Appellant resiled from same.
The Prosecution’s first witness, Mukaila Obanigba (PW1), testified that his mother’s room was illuminated, and he was able to identify the Appellant. On the conclusion of trial, the trial court found the Appellant guilty on both counts, and sentenced him to death by hanging. Dissatisfied with the decision of the trial court, the Appellant unsuccessfully appealed to the Court of Appeal, and the decision of the said Court, led to a further appeal to the Supreme Court.
Issues
The Appellant’s counsel formulated four issues for determination by the Supreme Court. The Appellant’s fourth issue, was apparently formulated from a ground which does not arise from the judgement of the Court of Appeal.
The Appellant’s second issue was a complaint against the decision of the trial court, which is not derivable from the Appellant’s grounds of appeal. These two issues were thus, struck out, for being incompetent.
Consequently, the Court considered the Appellant’s first and third issues, for determination: (i) Whether Exhibit A was validly relied upon by the Court of Appeal, in upholding the conviction of the Appellant; (ii) Whether the defence of alibi raised by the Appellant was properly considered by both the trial court and the Court of Appeal, and same availed the Appellant.
Arguments
In arguing the first issue, the Appellant’s counsel stated that, the Prosecution failed to prove the ingredients of the offence of armed robbery. He argued that, despite the fact that the Appellant denied making the extra-judicial statement (Exhibit A), same was admitted in evidence, even when it was not corroborated in any material particular. He further argued that, Exhibit A was a photocopy, and the Court of Appeal was wrong, by not comparing the signature on Exhibit A with the Appellant’s signature on his Notice of Appeal. He relied on Section 101 (1) and (2) of the Evidence Act.
Also, he contended that, the first police officer who investigated the case, was not called as a witness; the evidence of the Respondent’s witnesses at the trial court was contradictory, and that Mukaila Obanigba (PW1) could not have identified the Appellant, since he stated in his statement to the police, that he had switched off the lights in his room.
The Appellant’s counsel urged the Court, to resolve the issue in the Appellant’s favour. In response, the Respondent’s counsel stated that, the Court of Appeal was right in affirming the decision of the trial court, on the ground that the Prosecution proved all the ingredients of the offence of armed robbery beyond reasonable doubt. On the third issue, the Appellant submitted that, the Court of Appeal did not consider the defence of alibi that the Appellant raised at the trial court.
Court’s Judgement and Rationale On the first issue, the Apex court opined that, in a criminal trial, where a statement allegedly made by an accused person, is sought to be tendered in evidence, and the accused person challenges it by denying ever making it, no issue of admissibility is raised, and the court is at liberty to admit it. The court’s duty is to determine at the conclusion of the case, whether or not the accused person made the statement. The Supreme Court held that, since the Appellant in the instant case did not complain that the statement was made under duress, threat or some form of inducement, the trial court was right when it admitted the confessional statement, and the issue of whether the statement was corroborated or not, was to be decided at the conclusion of the case.
Further, in respect of the Appellant’s argument that Exhibit A was a photocopy, the Court relied on Section 89 of the Evidence Act, in holding that, secondary evidence may be given of the existence, condition or content of a document, when the original has been destroyed or lost, and in the latter case, all possible searches have been made for it. The Court also relied on Section 105 of the Evidence Act, in stating that copies of documents certified in accordance with Evidence Act, may be produced in proof of the contents of a public document. The Supreme Court therefore, held that, the Court of Appeal was on a firm ground when it refused to disturb the procedure adopted by the trial court, which admitted a certified photocopy of Exhibit A.
In respect of the Appellant’s argument, that the Court of Appeal should have compared the signature on Exhibit A with Appellant’s signature on the Notice of Appeal, the Supreme Court held that, before a court can exercise it discretion in this regard, the parties to a case must have presented a request to the court for comparison of signatures. The Court held that, there is no evidence that the trial court was called upon to embark on such an exercise by any of the parties, and the Court of Appeal was also not urged to compare the Appellant’s signature. The Court of Appeal did not hear evidence from any of the parties, and was therefore, not in a position to direct for signature comparison. In addition, the Court of Appeal had no jurisdiction over same, as there was no appeal on it before the Court. The Supreme Court cited Abdulkareem v Incar Nigeria Ltd. (I984) 15 NSCC 603 at 617, paragraph 5, amongst other cases.
On the Appellant’s argument that the Prosecution failed to call the initial police officer who investigated the case, the Supreme Court opined that, the fact that the initial investigating police officer was not called, is not fatal to the Prosecution’s case, as the Nigerian Police is an institution where any of its officers can take over the investigation of a case from another officer, and produce documents that were executed by previous officers.
As regard the Appellant’s argument, that PW1 could not have identified the Appellant and that PW1’s evidence was contradictory, the Supreme Court found that, there was no contradiction in the Prosecution’s case. In resolving the Appellant’s third issue, the Apex Court opined that, alibi means that when an offence was committed, the accused person was elsewhere, and it was impossible for him to have committed the offence. However, alibi is within the personal knowledge of the accused person, and so, it is his duty to give full particulars of where he was, and with whom he had been, to enable the police investigate his claims of being elsewhere. In the instant case, the Appellant claimed he was in Lagos, but there was no way the police could have initiated an investigation, in order to ascertain the truth or otherwise of his claim. Also, his defence of alibi was not timeously raised when he was arrested, as nothing of such was reflected in Exhibit A. The Court cited Ebenchi & Another v The State (2009) ALL FWLR (Pt. 486) 1825 at 1833 Para C-E.
Based on the foregoing, the Supreme Court affirmed judgement of the Court of Appeal and Dismissed the appeal.
Appeal Dismissed.
Representation: Patrick E. Oganwu, Esq. with Usman O. Sule, Esq., Agada Glachi, Esq., Johnson Oko Ochai,Esq. and Hafsat I. Usman for the Appellant.
R. P. Olatubora, Esq. for the Respondent.
Reported by Optimum Publishers Limited (Publishers of Nigerian Monthly Law Reports (NMLR)
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