COA Cases: The Nature And Concept Of Trial Within Trial

By Legalpedia

EMEKA OBODOCHINA v. THE STATE

APPEAL NO: CA/AS/232C/2019

Areas Of Law:

Appeal, Constitutional Law, Criminal Law And Procedure, Evidence, Judgement, Practice And Procedure.

Summary Of Facts:

The Appellant, who was the 2nd Accused Person before the Court trial court, was convicted on Counts 1, 2, 3, 4, and 5 for the offences of Armed Robbery and sentenced to death, and Conspiracy to Commit Kidnapping and Kidnapping and sentenced to ten years imprisonment but was acquitted and discharged on Counts 6 and 7.

The Respondent as the Prosecution alleged that all the offences with which the Appellant and his Co – Accused persons were charged occurred during the same transaction and that the evidence led by the Respondent’s witnesses covered all the offences charged and that in Counts II and III the Appellant and his Co – Accused persons cohort and others at large kidnapped one Ese Ekong Abasi, whose whereabouts remain unknown and one Hygenious Nwadike who testified as PW2.

The Respondent relied on the confessional statement of the Appellant and his Co – accused persons which were tendered in evidence as Exhibits C and C1 in respect of the Appellant; Exhibits A, A1 and A2 in respect of the 1stAccused person, and Exhibits E and E1 in respect of the 3rdAccused person.

The Respondent also relied heavily on the evidence of PW2 as well as other documents and items tendered in evidence as Exhibit G, a Search Warrant; Exhibit H, a Nokia Handset said to belong to Ese Ekong Abasi; Exhibit J, a Michael Kors Wrist Watch said to belong to the PW2; Exhibit K, a Shirt said to belong to Ese Ekong Abasi, and all of which were said to have been recovered from the Appellant and his Co – Accused persons.

The accused was convicted accordingly.

Dissatisfied, the Appellant appealed to this court.

HELD:

ISSUES FOR DETERMINATION

Ø  Whether or not the Court below was right when it affirmed the conviction of the Appellant in view of the admission of the evidence tending to show the Appellant’s bad character at the trial.

Ø  Whether or not the Court below was right when it affirmed the holding of the trial Court, that the prosecution proved the case of conspiracy and armed robbery beyond reasonable doubt against the Appellant, having regards to the variance on the date and venue of the offence, as contained in the particulars of the offence, date and venue proved at the trial.

Ø  Whether or not the Court below properly evaluated the conviction and sentence of the Appellant for the offence of illegal possession of firearms under Section 3(1) of the Robbery and Firearms (Special Provisions) Act. 2004 (Supra), when the prosecution did no prove that the possession of the gun (Exhibit 2) allegedly found on him was prohibited under Sections 3, 4 and 5 of the Firearms Act CAP 28 Laws of the Federation, 2004.

Ø  Whether or not the Court below understood and considered the complaint raised in issue No. 1 before it, and if not, whether the non-consideration of the issue occasioned a miscarriage of justice.

RATIONES

CONFESSIONAL STATEMENT – MEANING OF A CONFESSIONAL STATEMENT AND WHEN A CONFESSIONAL STATEMENT CAN PROVE GUILT OF THE MAKER AND SUSTAIN A CONVICTION:

“A confession is an admission made at any time by a person charged with a criminal offence stating or suggesting that he committed the alleged offence. Consequently, if a confession is free and voluntary it becomes a relevant fact against the maker and thus once a confessional statement is shown to have been made freely and voluntarily, without any threat, inducement or promise, and is direct, positive and properly established, it is sufficient on its own without any other outside corroborative evidence to sufficiently prove of the guilt of the maker and to sustain a conviction.” – Per B. A. Georgewill JCA

CONFESSIONAL STATEMENT- WHETHER A CONFESSIONAL STATEMENT CEASES TO BE ONE UPON RETRACTION:

“It is very pertinent to note at once that in law a confessional statement does not cease being a confessional statement merely because it was retracted by its maker at his trial. See Solola V. State (2005) All FWLR (Pt. 269) 1751. See also Bassey V. State (2012) 12 NWLR (Pt. 1314) 209”. – Per B. A. Georgewill JCA

TRIAL WITHIN TRIAL- MEANING AND NATURE OF TRIAL WITHIN TRIAL; WHEN SAME WILL/WILL NOT BE CONDUCTED:

“My lords, in criminal proceedings certain procedures have become so basic and crystalized in our administration of criminal justice that they should no longer pose any difficulty to Courts of trial. One of those procedure, a Trial within Trial is informed by the presumption of innocence of an Accused person coupled with the devastating legal implication of a confessional statement on the guilt of an Accused person and as dictated by the law is where an Accused person objects to the admissibility of a statement allegedly made by him to the Police on the ground that it was not made voluntarily by him either by reason of threat, duress, inducement or promise from a person in authority. Thus, for a Trial within Trial to be conducted the objection to admissibility of the extra judicial statement must be on the ground that it was not made voluntarily. If the ground of objection is that it was not made at all or that the Accused person is retracting it, then there would be no need for the conduct of a Trial within Trial as such extra judicial statement is admissible in evidence and the issue would only be as to the weight to be attached to such extra judicial statement in the judgment of the Court. See Section 29 (1) and (2) of the Evidence Act 2011. See also Solola V. State (2005) All FWLR (Pt. 269) 1751. See also Bassey V. State (2012) 12 NWLR (Pt. 1314) 209; Jimoh V. State (2014) 235 LRCN 199.” – Per B. A. Georgewill JCA

TRIAL WITHIN TRIAL- WHETHER THE DECISION GIVEN IN TRIAL WITHIN TRIAL CAN BE LUMPED WITH THE SUBSTANTIVE TRIAL:

“A Trial within Trial is a mini trial of its own and whose decision cannot even been lumped together with the judgment in the substantive criminal trial. See The State V. Sani (2018) LPELR – 234 (SC).’’ – Per B. A. Georgewill  JCA

COURT- DUTY OF COURT TO BE CONSISTENT IN IT’S FINDINGS:

“The Court below was, regrettably and with due deference, most inconsistent in its decision to abort the Trial within Trial and in the way it conducted the proceedings in relation to the issue of admissibility or otherwise of the extra judicial statements credited to the Appellant by the Police. Here is a trial Court which had earlier held that there was need for a Trial within Trial because the admissibility of the confessional statement of the Appellant as 2nd Accused person had been put in issue by the prompt challenged on the ground that it was not made voluntarily and had even commenced a Trial within Trial, and while in the course of the Trial within Trial, had without any reason or justification discernible on the printed Record of Appeal, sought once again to know the reason for the objection to the admissibility of the extra judicial statements and even when the reason was repeated to be amongst other ground of its having been obtained under duress, the Court below had made a complete 360 degree turn around and summersaulted to hold, and quite contrary to its earlier decisions, that the Appellant’s objection was not that the extra judicial statements were not made voluntarily to the Police but that of denial of making the extra judicial statements to the Police and thereby obviating the necessity for the continuation of the Trial within Trial. These two positions and or finding by the Court below are, in my finding and with due deference, clearly inconsistent and indeed violently contradictory. In Gov. Lagos State &Ors .V. Ohaigo Nig Ltd &Anor(2018) LPELR – 45552(CA), this Court per Georgewill JCA, had reiterated the need for not only parties to be consistent but also for the Court to be consistent inter alia thus:

“My lords, the rule against inconsistency operates ordinarily to guard against parties presenting at trial cases different from the cases as pleaded in their pleadings. I think that, and I so hold, this rule also applies with equal force to the courts in considering and arriving at findings in their judgments. The Courts, though not infallible and thus susceptible at times to err, do not enjoy a lower level of compliance with the rule against inconsistency. Thus, a Court cannot in one breadth make one finding and in another breadth on the same evidence and in the same judgment summersault to make an inconsistent finding to its earlier finding. It must lead by example by being consistent before being in a prime position to require of litigants compliance with the rule of consistency in the conduct and presentation of their cases.”

– Per B. A. Georgewill JCA

COURT – DUTY OF COURT NOT TO MAKE A CASE DIFFERENT FROM THE ONE MADE BY THE PARTIES:

“I find the subsequent intervention of the Court below, as unwarranted and obtrusive as it was, when it enquired of the learned counsel for the Appellant at the conclusion of the evidence of PW1 in the Trial within Trial that ‘Mr. Elikwu, am I to understand that your Client said he did not make the statements?’ to be grossly erroneous, gravely wrong and legally impermissible of a Court of law, which is as well a Court of justice. See Nigeria Air Force V. Shekete (2002) 18 NWLR (Pt. 188) 129 @ p. 151, where the Supreme Court had per Niki JSC (God bless his soul) admonished the Courts against entering into the arena of conflicts between the Parties inter alia thus:

“The litigation is for the parties and not for the court therefore the court has no jurisdiction to extend or expand the boundaries of the litigation beyond what the parties have indicated to it. In other words, the Court has no jurisdiction to set up a different or new case for the parties.”

– Per B. A. Georgewill JCA

JUDGEMENT AND ORDER – GUIDING PRINCIPLES FOR SETTING ASIDE AN ORDER:

“However, notwithstanding my finding as above, I am aware that in appropriate and deserving cases unless and until a Court has pronounced a judgment or ruling on the merit or by consent, it reserves the power to revoke the expression of its coercive power, where for instance such order has been obtained by failure to follow the rules of procedure or was made in want of jurisdiction. See Edokun V. State (2018) All FWLR (Pt. 936) 1522 @ p. 1532.” – Per B. A. Georgewill JCA

RIGHT TO FAIR-HEARING- EFFECT OF PROCEEDINGS CONDUCTED IN BREACH OF RIGHT TO FAIR HEARING:

“In law an allegation of breach of the right to fair hearing, whether in civil or criminal trial, is so grave that if made out against a proceedings and or a Court, it would invariably renders such a judgment and or proceedings a nullity. See Abdu Mohammed V. The State (1991) 7 SCNJ 114 @ pp. 129 – 130. See also Ekpenetu V. Ofegobi (2012) 15 NWLR (Pt. 1323) 276; Amadi V. INEC ( 2013) 4 NWLR (Pt. 1345) 595; Ovunwo & Anor. V. Woko & Ors ( 2011) 17 NWLR (Pt. 1277) 522; Pan African Incorporation & Ors. V. Shoreline Lifeboat Ltd & Anor. (2010) All FWLR (Pt. 524) 56; Action Congress of Nigeria V. Sule Lamido & Ors (2012) 8 NWLR (Pt. 1303) 560 @ p. 593; Judicial Service Commission of Cross River State Anor. V. Dr (Mrs) Asari Young (2013) 11 NWLR (Pt. 1364) 1.” – Per B. A. Georgewill  JCA

RECORD OF APPEAL- WHETHER PARTIES AND APPELLATE COURS ARE BOUND BY RECORD OF APPEAL:

“In law the Parties as well as the Court are bound by the Record of Appeal” – Per B. A. Georgewill JCA

ENDERING OF CONFESSIONAL STATEMENTS/CALLING OF WITNESS(ES) – DISCRETION OF THE PROSECUTION IN TENDERING CONFESSIONAL STATEMENTS AND CALLING OF WITNESS(ES):

“In law the Prosecution is expected to tender all statements made by an Accused person whether denying or admitting the charges made against him but it is not under any duty either to call every witness or produce every material since in law an Accused person who is aware of any material, including any of his statements made to the Police, in possession of the Prosecution has the right to call for its production. He also enjoys the same right in respect of every witness who is listed by the Prosecution but was not called.” – Per B. A. Georgewill JCA

RIGHT TO FAIR HEARING- WHETHER BREACH OF RIGHT TO FAIR HEARING CAN AMOUNT TO DISCHARGE AND ACQUITTAL OF THE ACCUSED PERSON:

“Interestingly, contrary to the contention by the learned counsel for the Appellant that the Appellant is entitled to a discharge and an acquittal if this Court finds that the alleged l and not necessarily the discharge and acquittal of an Appellant in the absence of the suppressed evidence before the appellate Court, and who may have to go back before the trial Court to face his trial de – novo, unless if the suppressed evidence is produced before the appellate Court and in its wisdom considers and finds such produced evidence as exculpating the Appellant and may so order his discharge and acquittal in such failure of the Respondent to tender the alleged first statement of the Appellant in evidence is true and amounted to suppression of evidence and or breach of the Appellant’s right to fair hearing is made out, in law an allegation and proof of a breach of fair hearing and or suppression of facts in a criminal trial can only result at best into the setting aside of the triacircumstances. See Abdu Mohammed V. The State(1991) 7 SCNJ 114 @ pp. 129 – 130, where the Supreme Court had per Olatuwara JSC., reiterated inter alia thus:

“Suppression of evidence in any trial civil or criminal is a violation of the principle of fair hearing entrenched in our constitution.  It is a serious allegation which must not be taken lightly. Suppression of evidence is a denial of justice.  Once it is established that evidence in a trial has been suppression, such a trial should be set aside.”

– Per B. A. Georgewill JCA

ONUS OF PROOF IN CRIMINAL TRIAL- DUTY OF PROSECUTION TO ESTABLISH ESSENTIAL INGREDIENTS OF AN OFFENCE:

“To succeed therefore, the Prosecution, which carries the onus of proof in a criminal trial and which onus does not shift at all, must lead credible evidence establishing all the essential ingredients of the offence (s) charged. See Section 135(1) of the Evidence Act, 2011. See Godwin Igabele V. The State (2006) 6 NWLR (Pt. 975) 103; Lori V. The State (1980) 8 – 11 SC 81; Emeka V. The State (2001) 14 NWLR (Pt. 734) 666; Peter Igho V. The State (1978) 3 SC 87; Archibong V. The State (2006) 14 NWLR (Pt. 1000) 349; Akpabio V. The State (1994) 7 NWLR (Pt. 359) 635; Idiok V. The State (2008) 13 NWLR (Pt. 1104) 225 @ pp. 250 ?? 251; Olayinka V. The State (2007) 4 SCNJ 53 @ p. 73; The State V. Ajie (2000) 3 NSCQR 53 @ p. 66; Adebayo Rasaki V. The State (2014) 10 NCC 1. In law conviction for any offence can only be secured based on proof by sufficient, credible and cogent evidence in satisfaction of all the essential elements of the offence(s) charged, failing which an Accused person is entitled to be discharged and acquitted. However, in proving the guilt of an Accused beyond reasonable doubt, the law does not impose on the Prosecution any greater duty than it simply entails, which is proof of all the essential ingredients of the offence(s) charged and not proof beyond all shadow of doubt or proof to the hilt.See Ajose V. FRN (2011) 6 NWLR (Pt. 1244) 465 @ p. 470. See also Emmanuel Eke V. The State (2011) 200 LRCN 143 @ p. 149; Deriba V. State (2016) LPELR- 40345 (CA).” – Per B. A. Georgewill JCA

OFFENCE OF CONSPIRACY- ESSENTIAL INGREDIENTS OF THE OFFENCE OF CONSPIRACY:

“In a Count alleging the offence of Conspiracy as in Count I, the essential ingredients of the offence of Conspiracy which must be established beyond reasonable doubt by the Prosecution either by direct or confessional or circumstantial evidence, are:i. An agreement between two or more persons to do or cause to be done, some illegal act or some act which is not illegal but by illegal means; ii. Where the agreement is other than an agreement to commit an offence that some act besides the agreement was done by one or more parties in furtherance of the agreement, and iii. Specifically that each of the accused individually participated in the conspiracy. See Tanko V. State (2009) All FWLR (Pt. 456) 2013 @ p. 2014” – Per B. A. Georgewill JCA

OFFENCE OF KIDNAPPING- ESSENTIAL INGREDIENTS OF THE OFFENCE OF KIDNAPPING:

“In a Count alleging the offence of Kidnapping as in Counts II and III, the essential ingredients of the offence of Kidnapping which must be established beyond reasonable doubt by the Prosecution either by direct or confessional or circumstantial evidence, are:  i. That the victim was forcefully seized and taken away by the accused; ii. That the victim was taken away against his or her consent, and iii. That the victim was unlawfully detained or imprisoned. See Okshetu V. State (2016) LPELR – 4001 SC, See also the English case of R V. Cort (2004) 4 All ER 137.” – Per B. A. Georgewill JCA

OFFENCE OF ARMED ROBBERY- ESSENTIAL INGREDIENTS OF THE OFFENCE OF ARMED ROBBERY:

“In a Count alleging the offence of Armed robbery as in Counts IV and V,the essential ingredients of the offence of Armed robbery which must be established beyond reasonable doubt by the Prosecution either by direct or confessional or circumstantial evidence, are:i. That there was a robbery or series of robbery; ii. That the robbery was an armed robbery, that is the robbers were armed during the robbery, and iii. That the Accused person was the person or one of the persons who took part in the armed robbery. See Agboola V. State (2013) 11 NWLR (Pt. 1366) 619 @ p. 641. See also Bozin V. The State (Supra); Ani V. The State (Supra) @ p. 142; Afolalu V. The State (2010) 43 NSCQR 227; Ogudu V. The State (2011) 45 NSCQR (Pt. 1) 278; The State V. Salawu (2011) LPELR – 8252 (SC).”

– Per B. A. Georgewill JCA

CALLING OF WITNESSES- WHETHER THE PROCECUTION TO CALL A HORDE OF WITNESSES TO SUCCEED IN A CRIMINAL TRIAL:

“Now, for the Prosecution to succeed in a criminal trial, it need not call a horde of witnesses since in law the credible and cogent evidence of even a single witness will be sufficient to secure a conviction for an offence no matter the heinous nature of the offences charged in so far as corroboration is not required by law. Thus, once the essential ingredients of the offence charged is sufficiently established by the evidence put forward by the Prosecution, it is immaterial that a particular witness was not called or that a particular document was not tendered in evidence. See Alhaji Muadzu Ali V. The State (2015) 5 SCM 26. See also Odili V. The State (1977) 4 SC 1; Oguonzee V. The State (1998) 5 NWLR (pt. 551) 521; Alonne V. IGP. (1959) 4 FSC 203; Ibodo V. The State (1975) 9 – 11 SC (Reprint) 80; Abeke Onafowokan V. The State (1987) 1 NWLR (Pt. 61) 538. See also Akpabio V. The State (1994) 7 NWLR (Pt. 359) 635; Idiok V. The State (2008) 13 NWLR (Pt. 1104) 225 @ Pp. 250 ?? 251. See also Olayinka V. The State (2007) 4 SCNJ 53 @ p. 73; The State V. Ajie (2000) 3 NSCQR 53 @ p. 66; Adebayo Rasaki V. The State (2014) 10 NCC 1.” – Per B. A. Georgewill JCA

EVIDENCE-TYPES OF EVIDENCE TO PROVE COMMISSION OF AN OFFENCE:

“The Prosecution has open to it three basic types of evidence with which to prove the commission of an offence charged against an Accused person beyond reasonable doubt, namely: A: Direct eye witness evidence; B: Confessional statement and C: Circumstantial evidence.See Godwin Igabele V. The State (2006) 6 NWLR (Pt. 975) 103. See also Lori V. The State (1980) 8 – 11 SC 81; Emeka V. The State (2001) 14 NWLR (Pt. 734) 666; Peter Igho V. The State (1978) 3 SC 87; Archibong V. The State (2006) 14 NWLR (Pt. 1000) 349.” – Per B. A. Georgewill JCA.

COURT- DUTY OF COURT TO BASE ITS FINDINGS ON EVIDENCE ADDUCED BEFORE IT AND NOT ON EXTRANEOUS FACTS OUTSIDE EVIDENCE GIVEN AT TRIAL:

“My lords, in considering the conclusions and findings reached by the Court below, I am aware that it is the prerogative of a trial Court which sees and hears the witnesses to choose which to believe and to ascribe probative value to such evidence, either oral or documentary. Thus, a trial Court being the master of the facts, must base his inferences, evaluation or assessment and findings on the available evidence adduced before it and therefore, if its findings must stand it must not be premised on extraneous facts or matters or conjectures outside the evidence given at the trial. See Emeka V. The State (2014) LPELR 3472011 (SC); Afolalu V. The State (2010) 16 NWLR (Pt. 1220) 584; Ejeka V. The State (2003) 7 NWLR (Pt. 819) 408; Isibor V. The State (2002) 4 NWLR (Pt. 758) 241; Iko V. The State (2001) 14 NWLR (Pt. 732) 221; Buba V. The State (1994) 7 NWLR (Pt. 355) 195; The State V. Musa Danjuma (1997) 3216 (SC) 1; Arehia V. The State (182) NSCC 85.”

– Per B. A. Georgewill JCA

EVIDENCE- ONUS OF PROOF IN CRIMINAL TRIAL- WHETHER THE ACCUSED PERSON HAS A DUTY TO ESTABLISH HIS INNOCENCE:

“My lords, I have taken time to reproduce and review the legally admissible evidence as in the Record of Appeal and I bear in mind that the onerous duty to prove the guilt of the Appellant on each and every of the offences alleged against him beyond reasonable doubt is that fixed by law on the Respondent, and thus the Appellant carries no duty to prove his innocent. He is by law constitutionally presumed to be innocent until the contrary is proved by the Respondent.  ” – Per B. A. Georgewill JCA

OFFENCE OF CONSPIRACY- MEANING OF CONSPIRACY AND HOW IT MAYBE INFERRED:

“Now, conspiracy is an agreement between two or more persons to do an unlawful act or to do a lawful act by an unlawful means. In law, a conspiracy consists not merely in the intention of two or more but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means and thus so lng as a design rests in intention only it is not indictable. But, when two or more agree to carry it into effect, the very plot is an act in itself, and the act of each of the parties, promise against promise, actus contra actum, capable of being enforced if lawful, punishable if for a criminal object or for the use of criminal means. See Odunayo V. State (2014) 12 NWLR (Pt. 1420) 1. See also Oduney V. State (2001) 2 NWLR (Pt. 697) 311; Mulcahy V. R (1868) 3 H.L. @ p. 317; Patrick Njovens &Ors. V. The State (1973) 5 S.C. 17; Daboh &Anor V. The State (1977) 5 SC.197.The offence of conspiracy is complete when it is shown that there was a formation of a scheme or agreement between the parties, but before the doing of the act for which the conspiracy is formed. Thus, in most cases the proof of conspiracy is generally a matter of inference deduced from certain criminal acts of Accused persons done in pursuance of an apparent criminal purpose in common between them. In law, since direct evidence of conspiracy is rare to find in most cases, though possible to find in some few cases, the following guide may be used in arriving at whether or not the evidence led by the Prosecution established the offence of conspiracy, namely: a: The conspirators may all directly communicate with each other at a particular place and time and enter into an agreement with a common design; b: There may be one person who is the hub around whom the others resolve,c: A person may communicate with “A” and “A” with “B”, who in turn communicates with another and so on. This is called the chain conspiracy. See Black’s Law Dictionary, Ninth Edition @ p. 351. See also  Taofeek Adeleke V. State (2013) 16 NWLR (Pt. 1381) 556 @ p. 584; Kaza V. State (2008) 7 NWLR (Pt. 1085) 125.Thus, in order to establish the offence of conspiracy it is not necessary that the conspirators should or must know each other so long as they know of the existence and the intention or purpose of the conspiracy. However, it must be pointed out at once that the facts to be relied upon by the Court for conviction for conspiracy must be consistent, cogent and must irresistibly lead to the guilt of the Accused persons. See Erin V. The State (1994) 5 NWLR (Pt. 346). See also Oladejo V. The State (1994) 6 NWLR (Pt. 348) 101; Alegba&Ors V. The King (1950) 19 NLR 129; Francis Tole Lawson &Ors. V. The State (1975) 1 All NLR 175 @ pp. 181 – 182; Silas Sule V. The State (2009) 17 NWLR (Pt. 1169) 33; Benson Obiakor&Anor V. The State (2002)10 NWLR (Pt. 776) 612.” – Per B. A. Georgewill JCA

OFFENCE OF KIDNAPPING- MEANING OF THE OFFENCE OF KIDNAPPING AND HOW IT MAYBE INFERRED:

“On the other hand, the offence of kidnapping occurs where any person unlawfully imprisons any person within Nigeria in such a manner as to prevent him from applying to a Court for his release or from discovering to any other person the place where he is imprisoned, or in such a manner as to prevent any person entitled to have access to him from discovering the place where he is imprisoned. Thus, the gist of the offence of kidnapping lies in the taking or carrying away of one person by another with force, fraud or deception without the consent of the person so taken or carried away and without lawful excuse.” – Per B. A. Georgewill JCA

OFFENCE OF ARMED ROBBERY- MEANING OF THE OFFENCE OF ARMED ROBBERY AND HOW IT MAYBE INFERRED:

“While, the offence of Armed Robbery, which upon conviction carries the death penalty, occurs when there has been a robbery or series of robbery in which the robber or robbers were armed and the Accused person was the person or one of the person who took part in the Armed robbery.” – Per B. A. Georgewill JCA

EVIDENCE- UNCHALLENGED EVIDENCE-WHETHER A COURT CAN ACT ON UNCHALLENGED EVIDENCE:

“In considering the totality of the legally admissible evidence led by the Parties it must be borne always in mind by trial Courts, as well as appellate Courts, that in law evidence that remained unchallenged is good evidence on which a Court can act to make relevant findings of facts as such unchallenged evidence is deemed to be true and or accepted by the adverse party. See Okoebor V. Police Council (2003)12 NWLR (Pt. 834) 448. See also Iriri V. Erhurhobora (1991) 2 NWLR (Pt. 173) 252; Asafa Food V. Alraine Nig. Ltd4 (2002) 12 NWLR (Pt. 781) 353; Charles IkechiOkike V. The Legal Practitioner Disciplinary Committee &Ors (2005)15NWLR (Pt. 949) 471 SC; Dennis Ivienagbor V. H. O. Bazuaye (1999) 4 NWLR (Pt. 620) 552.”

– Per B. A. Georgewill JCA

EVIDENCE- CONTRADICTION IN EVIDENCE- EFFECT WHERE EVIDENCE OF THE PROSECUTION WITNESS IS NOT CONTRADICTED IN MATERIAL PARTICULARS:

“I have also calmly reviewed the evidence of PW1, PW2, PW3, PW4 and PW5 both in Chief and under cross – examination and in their statement in the proof of evidence, and contrary to the heavy weather made of the very minor discrepancies, I cannot find any material contradictions in the their evidence as presented in support of the charges of Armed Robbery, Conspiracy to Commit Kidnapping and Kidnapping as laid against the Appellant as vehemently but erroneously contended by counsel for the Appellant. In law, where the evidence of Prosecution witnesses in Court are not in any material particulars contradicted under cross examination or not so contradictory with their statement in the proof of evidence or is not at variance with same, as in the instant case, the issue of contradictions weighty enough to taint their evidence and thereby rendering it unreliable does not arise and I so hold in respect of the unchallenged evidence of PW2. See Iortim V. State (1997) 2 NWLR (Pt. 490) 711 @ pp. 728 – 729.” – Per B. A. Georgewill JCA

IDENTIFICATIO PARADE- WHETHER AN IDENTIFICATION PARADE MUST HOLD WHEN IDENTITY OF AN ACCUSED PERSON IS NOT IN DOUBT:

“I have considered the facts and circumstances of this case on the admissible evidence, particularly the direct eye witness account of the PW2, who was himself one of the victims and who spent at least a day in the captive of the Appellant and his co – Accused persons and two others at large, and there is no evidence that the PW2 was blindfolded or that the Appellant and his cohorts were masked. I am aware that in law, proper identification of an Accused person who is alleged to be a party criminis in the commission of a criminal offence is a question of fact to be considered by the trial Court on the evidence adduced by the Prosecution. However, where there is no doubt as to the identity of an Accused person, either by reason of eye witness account fixing him to the scene of crime or prior knowledge of the Accused person by the victim of the crime, it would appear that an identification parade would not be necessary. This is so because there is no rule of law or practice of general application which requires the holding of identification parade on every occasion before liability for commission of a criminal offence can be ascertained when the identity of an Accused person is not in doubt or not in issue. Thus, each case must be considered based on the evidence adduced by the Prosecution.” – Per B. A. Georgewill JCA

IDENTIFICATION PARADE-CIRCUMSTANCES WHEN ESSENTIAL:

“Aliyu V. State (2007) All FWLR (Pt. 388) 1123 @ p. 1147, where it was stated inter alia thus:

“An identification parade is not sine qua non to a conviction for a crime alleged, it is essential in the following instances – a. Where the victim did not know the accused before and his first acquaintance with him was during the commission of the offence. b. Where the victim or witness was confronted by the offender for a very short time. c. Where the victim due to time and circumstances might not have had full opportunity of observing the features of the accused.”

– Per B. A. Georgewill JCA

INTERFERENCE WITH FINDING(S) OF A TRIAL COURT- WHEN AN APPEALLATE COURT WOULD NOT INTERFERE WITH FINDINGS OF A TRIAL COURT:

“In law, once the conclusions and findings reached by a trial Court is correct an appellate Court would have no business interfering with it. See AlhajiNdayoko&Ors. V. AlhajiDantoro&Ors. (2004) 13 NWLR (Pt. 889) 187 @ p. 198. See also Abaye V. Ofili (1986) 1 NWLR (Pt. 15) 134; Ukejianya V. Uchendu 18 WACA 46.” – Per B. A. Georgewill JCA.

TRIAL WITHIN TRIAL- WHETHER THE COURT CAN TERMINATE PROCEEDINGS BEFORE RULING UPON A CONFESSIONAL STATEMENT:

“After parties had agreed that there is an allegation of involuntariness and the court ordered a trial within trial proceedings, there could never have been a termination of proceedings even if the accused agrees that he voluntarily made the said statement, the court must proceed to rule upon it either admitting or rejecting the said statement. See; NWAGBOMU v STATE (1994) 2 NWLR (PT 327) 380, AT 395; DAWA v STATE (1980) 8 – 11 SC P. 236 AT 258 – 259.Therefore, the importance of a trial within trial cannot be wished away nor trivialized in admission of confessional statement. The lower court was wrong when he aborted proceedings midway on a wrong premise and admitted the statement suo moto.”

-Per A. O. Obaseki-Adejumo, JCA.

Statutes Referred To:
Constitution of the Federal Republic of Nigeria 1999

Criminal Code Law, Cap C21, Vol. 1, Laws of Delta, 2006

Delta State Anti-Kidnapping and Anti-terrorism Laws, No. 8, 2013

Evidence Act, 2011

Robbery and Firearms {Special Provisions} Act Cap R11 Vol. 14, Laws of the Federation of Nigeria, 2010