Benson Esangbedo Vs The State (1988)

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NNAEMEKA-AGU, J.S.C. 

This is a further appeal by Benson Esangbedo against the confirmation by the Court of Appeal, Lagos Division, of his conviction by the Lagos High Court. The appellant and two others, who were discharged and acquitted at the conclusion of the trial, were charged on a three count information that on or about the 23rd day of April, 1983, at various addresses in Okota Village, Isolo, they and other persons unknown, armed with offensive weapons – pistol, cutlasses and axes – robbed Muyibatu Apena (P.W.1), Lizzy George Okon (P.W.2) and Lawal Amizu (P.W.3) of various sums of money and jewelry contrary to section 402(2)(a) of the Criminal Code, Laws of Lagos State, 1973.

At the conclusion of the trial, Obadina, J., discharged and acquitted the 2nd and 3rd accused persons, found the appellant not guilty on the 3rd count but guilty on two counts of the information and sentenced him to death. His appeal to the Court of Appeal was summarily dismissed by Ademola, J.C.A., (Babalakin and Awogu concurring) on the 8th day of February, 1988. The reasons for the judgment were given on the 2nd of March, 1988.

Four grounds of appeal were filed with his notice of appeal to this court dated the 7th day of March, 1988. His counsel, Chief C.J. Okoli, sought and obtained leave to file and argue two additional grounds of appeal in place of the original grounds 2 and 3. At the end of the day, the following issues were framed for determination by learned counsel for the appellant as arising from the grounds of appeal:

“(1) Whether the prosecution proved its case against the appellant beyond all reasonable doubts in the rebuttal of the defence of alibi set up by appellant. (Ground 1 of the Grounds of Appeal) (2) Whether the conflicts in the evidence of prosecution witnesses were material contradictions as would occasion miscarriage of justice if ignored. (Grounds 2 & 3).”

I think it is better to deal with the second issue first. Learned counsel for the appellant submitted that the evidence of the 1st, 2nd, 3rd and 4th prosecution witnesses upon which the learned trial Judge and the court below relied contained material contradictions which were sufficient to destroy their probative value. They differ in material particulars from the untendered statements which those witnesses made to the police.

The court should, in the interest of justice either look at those statements, as they have been copied in the record, or grant to the appellant leave to tender them as additional evidence in this appeal. In his brief, he drew attention to what he believed to be the conflicts between the statements and the evidence of those witnesses. Furthermore, he pointed out, there were some discrepancies in the evidence of P.W.3 and P.W.4 for, whereas P.W.3 testified that on the night of the robbery the appellant was wearing the same dress as he wore in court during the trial, that is, a yellow safari suit, P.W4 testified that the appellant was wearing a light blue shirt with trousers during the robbery.

Also, he submitted, there were contradictions among the police witnesses as to the circumstances of the appellant’s arrest. The investigating police officers said nothing about how he was arrested and this, in counsel’s contention, confirms the appellant’s story that he was arrested by a mob near his house and taken to the police station. P.W.9, Nuremi Bashiru, contrary to his extra-judicial statement, stated that a search party led by two police men surrounded a bush and were searching when appellant came out of the bush and was arrested. But there was no bush near where the appellant lived. The Divisional Police Officer, who admittedly never took part in the arrest, on the other hand, said that he was informed that the appellant was arrested at the scene of the robbery.

The learned counsel for the respondent replied to the above submissions. In the first place, he submitted that it is illegitimate to compare the testimonies of witnesses in court with their extra-judicial statements which were not tendered. Also, that P.W.3 did not observe any ear-rings on the appellant whereas P.W4 did cannot be regarded as a contradiction because the places and circumstances in which the two witnesses observed the appellant were different. He also submitted that the alleged contradictions, if proved at all, were not material.

In my opinion, the learned counsel for the respondent is correct. None of the two courses which the learned counsel for the appellant has urged onus can lawfully be undertaken. We cannot look at the extra-judicial statements of P.W.1, P.W.2, P.W4 and P.W.9, which were not tendered as exhibits during the trial because those statements cannot be legal evidence. An appellate court is bound to base its consideration of every appeal before it upon legal evidence upon which the court below acted. Even in the court of trial, the only proper use that could have been made of those extra-judicial statements of witnesses was to have used them for cross-examination of those witnesses in order to discredit their testimony – to show that their testimony in court was unreliable. In that case, it would have been necessary to tender the statements, to draw the attention of each witness to the portion of his previous statement that is in conflict with his instant testimony, and give him the opportunity to explain the inconsistency. See Christopher Onubogu v. The State (1974) 9 S.C. 1, at pp. 17-19; R. v Fraser & Anr. (1956) 40 Cr. App. R. 160, p.163. As that is the position, short of reopening the trial and recalling all the witnesses for cross-examination, I cannot agree that this court can put those statements to the use counsel has urged on us. It cannot properly compare the testimonies of those witnesses in court with their previous statements to the police which were not tendered. Even if it can, it would be impossible to recapture the situation wherein the witnesses could be cross-examined on those statements.

The alternative submission of the learned counsel for the appellant, that is, that this court should admit those untendered extra-judicial statements as additional evidence in this court is also subject to a valid objection. This is because assuming, but not agreeing, that they could be admitted under the undoubted powers of this court to admit additional evidence on appeal, they cannot now be cross-examined upon unless this court assumes the whole role of the court of trial. But even so, on the premises that a party which has obtained judgment in a court of justice is not to be deprived of the benefits of the judgment excepting on very solid grounds, admission of further evidence in this court is not allowed as a matter of course: it is only permissible on settled principles.

First: it must be shown that the evidence could not have been obtained and, with reasonable diligence, used at the court of trial. Secondly: the court must be satisfied that the evidence is such that, if given, it would probably have an important influence on the result of the case, though it need not be decisive. Thirdly: the evidence must be apparently credible, though it need not be uncontrovertible. See on these: Asaboro v Aruwaji (1974) 4 S.C. 119, at pp.123-125; Chairman, Board of Inland Revenue v Rezcallah; Federal Board of Inland Revenue v Joseph Rezcallah & Sons Ltd. (1962) 1 All N .L.R. 1. It appears clear to me that learned counsel’s submissions are founded on the first of the above pre-requisites.

In Turnbull v Duval (1902) A.C. 429, the Privy Council held that a new trial will not be ordered where the fresh evidence is a document which could have been obtained by discovery during the trial proceedings.

Learned counsel has suggested in terms that this being a criminal, in fact a capital offence, this court should be liberal and in the interest of justice accede to the above requests. In my view, this appears to be a misconception of the essence of justice – to be another example of looking at justice from the point of view of the appellant alone, without any regard to the interests of the State and those of the victims of appellant’s wanton acts of terrorism which have led to the charge, trial and conviction. The interest of the appellant must be balanced with the interest of the victims of the robbery as well as the interest of the State as the keeper of public good. For, a necessary implication of the maxim interest reipublicae ut finis sit litium (it is in the interest of the State that there should be end to litigations) is that an appellate court ought not normally reopen issues of fact laid to rest at the trial unless they are shown to be perverse, illegal or not a proper exercise of judicial discretion. Similarly, a party who has won a case at the trial on the case brought to court by his adversary ought not normally be confronted with a new case on appeal simply because his adversary decided to bring forward his case in dribbles. See the Queen v Ohaka (1962) All N. L. R. 505. I do not think there is any difference in principle between civil and criminal appeals in the matter particularly as, in this case, the appellant was represented by counsel at the trial. I cannot accede to either request.