Femi Afolabi V. The State (2016)

LawGlobal-Hub Lead Judgment Report

MOJEED ADEKUNLE OWOADE, J.C.A.

 This is an appeal against the judgment of Hon. Justice I. O. Adeleke of the High Court of Justice, Osun State sitting at Ikirun delivered on 27th June, 2013.The Appellant was one of the five (5) accused persons arraigned before the High Court of Osun State at Ikirun for the offences of conspiracy, to commit Armed Robbery and Armed Robbery contrary to Section 6 (B) and 1 (2) (a) and (b) respectively of the Robbery and Firearms Act, Cap R-11 Laws of the Federation of Nigeria 2004. The charges were read over and explained to the Appellant and the other accused persons. They pleaded not guilty to each count of the charge.

The prosecution called six (6) witnesses including the Investigating Police Officer and tendered the statements of the Appellant and the other accused persons. The Appellant and the other accused persons gave evidence in defence but called no witnesses.

The case of the prosecution is that on 13th March, 2006, a gang of Armed Robbers armed with dangerous weapon including guns and cutlasses invaded and robbed a new site at Obagun via Ikirun, the robbers fired shots at and wounded some

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vigilante men who pursued them. The Appellant was arrested and he named the other members of the gang which led to their arrest.

None of the prosecution witnesses was able to identify the Appellant or any of the other accused persons as a perpetrator of the crime on the day of the incident. The learned trial Judge however, based essentially on the purported confessional statements convicted the Appellant and the other accused persons as charged.

Dissatisfied with the judgment, the Appellant, at first filed a Notice Appeal containing four grounds of appeal on 11/7/2013. And later filed Amended Notice of Appeal on 1/4/2015.

The Appellant’s grounds of appeal together with their particulars contained in the Amended Notice of Appeal are as follows:-
GROUNDS OF APPEAL:
GROUND ONE: ERROR OF LAW
1. The Learned trial Judge erred in law when he relied on the evidence of prosecution witnesses to convict the 5th Accused/Appellant.
PARTICULARS
(i) All the purported eye witnesses called by the prosecution i.e. PW1, PW2, PW3, PW4 and PW5 both in their statements to the Police as contained in the proof of evidence, their evidence in chief and under cross-examination said they could

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not identify any of those who participated in the alleged armed robbery if seen.
(ii) The prosecution witness infact maintained in the witness box that they could not identify any of the accused persons including the 5th Accused/Appellant herein as part of the robbery gang.
(iii) The learned trial Judge however in his judgment while reviewing both the evidence in chief and under cross examination of PW1 said:
“He stated further that he did not know any of the accused persons in the dock but that the robbers did not cover their faces. Under cross-examination by Learned Counsel for the 1st, 3rd and 5th Accused, he said that he did not know any of the accused in the dock and identify them as being responsible for robbery attack at his house, He maintained that the said Armed Robbers did not cover their faces”. (underlining ours for emphasis).
(iv) The underline portion of the above quoted trial Judge’s judgment did not form paft of the evidence given by PW1.
(v) The Judgment was therefore perverse as the trial Judge deliberately imported what is not on record into his judgment so as to convict the 5th Accused/Appellant at all cost.
GROUND TWO: ERROR OF LAW
2. The Learned

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trial Judge erred in Law when, despite the Counsel’s and Accused’s Objection to the admissibility of Exhibit E, (i.e. 5th Accused/Appellant’s Statement) on the ground that the said statement was obtained under duress, he failed to conduct trial within trial before admitting the said statement in evidence as required by Law.
PARTICULARS
(i) When the Prosecuting State Counsel sought to tender the statement of the 5th Accused/Appellant in evidence, the trial Judge hurriedly admitted it without allowing the 1st Accused/Appellant (the alleged Maker of the Statement) or his Counsel to see the statement.
(ii) Even, when the Counsel raised objection, the trial Judge deliberately and perversely failed or refused to record the objection during trial.
(iii) However, since the truth and facts of the objection raised by Counsel was in the mind and sub-conscience (sic) of the learned trial Judge, he himself admitted in his judgment that the defence Counsel raised objection to the admissibility of the statement on ground that it was obtained by duress when he held as follows:
“The defence also objected to the tendering of the confessional statements made by the accused persons

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mainly on the basis that it was obtained by force. They were not contesting the contents of the statements. This objection was overruled and the confessional statements were admitted as Exhibits A – E”.
(iv) There was no trace of trial-within-trial in the Record of Proceedings despite the above quoted portion of the trial Judge’s Judgment.
(v) The trial Judge made up his mind from the word ‘go’ to convict the 5th Accused/Appellant at all cost.
(vi) The trial Judge convicted the 5th Accused/Appellant relying on his purported confessional statement.
GROUND THREE: ERROR OF LAW
3. The trial Judge erred in law when he failed to give the 5th Accused/Appellant fair hearing.
PARTICULARS
(i) The admission of the purported confessional statement of the 5th Accused/Appellant in evidence as Exhibit E without conducting trial-within-trial has denied the 5th Accused/Appellant fair hearing.
(ii) The statement was hurriedly admitted without more by the trial Judge.
(iii) The trial Judge would have rejected the statement if a trial within-trial had been conducted.
(v) The trial Judge erroneously based his conviction of the 5th Accused/Appellant on his purported confessional

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statement.
GROUND FOUR
4. The Learned trial Judge was perversed in the conduct of the entire trial of the 5th Accused/Appellant.
PARTICULARS
(i) The trial Judge deliberately doctored the record of proceedings during trial when he refused or failed to record the objection raised by both the 5th Accused/Appellant and his Counsel to the admissibility of Exhibit E (i.e. the purported confessional statement of the 5th Accused/Appellant) on the ground that the said Statement was obtained by Force.
(ii) The trial Judge deliberately did not write the objection in order to paint a picture that no objection was raised by Counsel.
(iii) But as fate would have it and due to the existence of its truth in the trial Judge’s subconscious mind, the trial Judge in his judgment admitted the fact that Counsel raised objection to the admissibility of Exhibit E on ground that it was obtained by duress. He however held that:  This objection was overruled and the confessional statements were admitted as Exhibits A-E.

The relevant briefs of argument for this appeal are:
(a) Appellant’s Amended brief of argument dated and filed 1/4/2015 – Settled by Abiodun Olaide Esq.
(b)

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Respondent’s brief of argument filed on 1/2/2016 and deemed filed on 21/3/2016 – Settled by Fola Akinru Jomu (Mrs.) Director, Legal Drafting, Osun State.

Learned Counsel for the Appellant nominated three (3) issues determination. They are:
”1. Whether the learned trial Judge was right to have relied on the evidence given by all the prosecution witnesses (particularly PW1 – PW5 who were eye witnesses) in finding the Appellant guilty of armed robbery. (Ground one).
2. Whether considering the way and manner the so-called “Confessional Statement” of the 1st Accused/Appellant was admitted by the trial Judge of the deliberate omission of the objection raised by the Defence to its admissibility from the record during trial, the 1st Accused/Appellant was given fair hearing. (Grounds 2 and 3).
3. Whether the learned trial Judge did not perversely doctor the record of proceeding through deliberate omissions from and additions to the Record. (Ground 4)”

Learned Counsel for the Respondent adopted the issues formulated by the Appellant. It is important to start a consideration of this appeal from Appellant’s Issue 2. This is because issue 2 raises a question of fair hearing and

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may ultimately turn out to be the determinant factor in the appeal.

On the said Issue 2, Learned Counsel for the Appellant submitted that the only evidence left upon which the trial judge could base the conviction of the Appellant was the so-called “Confessional Statement” – Exhibit E. That the statement was admitted as Exhibit E at page 113 of the Record.

He submitted that the statement of the Appellant was wrongly admitted in evidence by the trial Judge and this has occasioned a miscarriage of justice as the Appellant was denied fair hearing. When despite the objection raised to the admissibility of the statement, the trial judge failed to conduct a trial within trial to confirm the voluntariness or otherwise of the statement before admitting it to evidence.

Counsel referred to the cases of Ogudo v. State (2011) 11 – 12 (Pt. 1) SCM P. 209 at 222 and Eke v. State (2011) 1 SCM P. 155 at 162 and submitted that where a confessional statement is challenged on ground of involuntariness or that it was obtained by force, “a trial within trial must be held”.

Appellant’s Counsel referred to the provision of Section 36 (4) of the Constitution of the Federal Republic of

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Nigeria 1999 (as amended) to demonstrate that an accused person is entitled to fair hearing and submitted that the refusal of the trial judge to test the voluntariness of Exhibit’E’, his failure to allow the Defence to see the confessional statement as well as his failure to record the objection raised to its admissibility before admitting it in evidence as well as the trial of the Appellant between January 2007 and June 2013 (a period of over six years) have denied the Appellant of fair trial and occasioned a miscarriage of Justice.

Learned Counsel for the Respondent submitted on Issue Two that a trial within trial is necessary only where a confessional statement is effectively challenged and not where all the opportunity offered for such were not utilized. He referred to page 113 of the record.

He submitted that a confessional statement having been admitted in evidence and marked as an exhibit could no longer be made the subject of any trial within trial. On this, Counsel referred to the cases of Nwachukwu v. State (2004) ALL FWLR (Pt. 206) 525 and Ogudo v. State (2011) 48 NSCC 377 at 430.

The question, according to Counsel is when is the appropriate time to

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raise involuntariness of a confessional statement? He answered that the appropriate point to raise the involuntariness of a confessional statement is when it is about to be tendered in evidence especially as in this case, the accused person is represented by Counsel and it is assumed they ought to know what to do at every stage of the proceedings. He argued that both Counsel and the Court are bound by the record of the Court. That it was stated at page 113 of the record of proceedings that No objection was raised as to involuntariness of the Appellant’s confessional statement.

He referred to the case of Okaroh v. The State (1900) 3 NWLR (Pt. 81) 214 and Alarape v. State (2001) FWLR (Pt. 41) 1872 and concluded on the issue that the confessional statement was tendered without objection from the defence. That none of the prosecution witnesses was cross-examined as to their voluntariness. And, that it was not until the prosecution had closed its case and the Appellant was testifying in defence that the issue was belatedly raised.

He submitted that the learned trial Judge was right to have dismissed this aspect of the defence case as an afterthought, having regard to

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the qualitative evidence tendered by the prosecution and accepted by the trial Court on the subject.

There are three sets of excerpts from the record of proceedings that are particularly relevant in the determination of Issue Two in this appeal. The first is an excerpt from page 116 of the record at the point the Appellant’s confessional statement was admitted. The second is at page 125 of the record which is a portion of the Appellants statement in defence. And the third is at page 135 of the record which is part of the judgment of the trial Court.
Page 116
6^TH pw. (I.P.O) Continuation. The witness recognized the statement made by Femi Afolabi, the 5th accused.
Mrs. Akinrujomu sought to tender it.
Court:- Statement of Femi Afolabi dated 15/3/06 admitted and marked Exhibit ‘E’. The Court was informed that that was the case of the prosecution against the accused.
Cross-Examination by L. S. Bello. No. I was not at the scene when the offence was being committed as I am not part of the robbery gang.
Yes a complaint was lodged in our station for us to know. The statement was obtained in English Language. I recorded the statement of the accused. The accused was

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encouraged to state his own side of the story. No. I did not forward the statement to the accused. He sat beside me when I was recording him. I did not torture the accused to obtain the statement.
Cross Examination by Mr. Jimoh.
I am not the leader of the investigation team. We investigated the complaints. The statements of the 1st – 4th accused were objected by Counsel. I did not know why, since I obtained them voluntarily.
Court: The trial is adjourned to Thursday 8/12/11 for defence to open”.
Page 125
“DW5: Sworn with the holy bible and elect to testify in Yoruba language. I am Afolabi Oluwakemi. I lived at lkirun before my arrest. I came from Ilesa Prison today. I went to the Police Station myself. The witness identified Exhibit’E’ the statement which he signed but added he was forced to sign it. I did not rob.
Cross Examination Nil.
Re Examination Nil.”
Page 135 Paragraph 2 and 3
“The defence also objected to the tendering of the confessional statements by the Accused Persons mainly on the basis that it was obtained by force. They were not contesting the contents of the statements. This objection was overruled and confessional statements were admitted as

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Exhibits’A- E.. I have compared the contents of Exhibits ‘A – E- and the replied (sic) relies of the 1st to 5th Accused persons to questions put to them under cross examination by the prosecuting Counsel (Mrs. Fola Akinrujomi) and it is my observation that most of the information in their confessional statement about all the Accused persons tally with their evidence-in-chief. The differences are just their denial to committing the offence of conspiracy and Armed robbery, their places of arrest and known one another at Police Station.
The information on their background, what they did for a living, the facts that 5th Accused person learnt bricklaying from Gbenga Coker and formal education he had was primary five (5) before he went to learn bricklaying work.
The question to ask; Did I.P.O (PW6) manufactured these facts? Or how I would I.P.O know all the information included in Exhibits A -E, if such information had not been supplied by all the Accused. I believe they made their confessional statement voluntarily ———-”.

On the above, it would be recalled that the learned Counsel for the

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Appellant further submitted from Paragraph 4.07 – 4.11 of his brief of argument that the objection to the admissibility of Exhibit’E’ (5th accused) statement was raised at the point of tendering same as later admitted by the learned trial Judge in the above quoted passage. That the learned trial Judge deliberately and perversely failed to record the objection raised at the point of tendering and he also failed to record his ruling wherein he overruled the said objection.

In any event it is obvious from page 135 of the record that indeed the learned Counsel for the Appellant objected to the admissibility of the Appellant’s confessional statement, that the learned trial Judge referred to a ruling which was not so recorded. And, that all through the proceedings in spite of the ground of objection to the admissibility of the statement by the defence that the statement was not voluntarily obtained as stated by the learned trial Judge on the same page 135 of the record, a trial within trial was not ordered or conducted.
In the instant case, the failure of the learned trial Judge to order a trial within trial for the admissibility of the Appellant’s confessional

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statement and the failure to rule on such are lapses which point out irregular procedures occasioning a miscarriage of justice.
Miscarriage of justice has been variously defined in the case of Total (Nigeria) Limited & Anor v. Wilfred Nwako & Anor (1978) 5 S.C. 1 at P. 14 where the Supreme Court adopted its definition as:-
——– such a departure from the rules which permeate all judicial processes as to make what happened not in the proper sense of the word judicial procedure at all” vide. Devi v. Roy (1946) A. C. 508 at 521″ see also Nnajiofor v. Ukonu (1986) 4 NWLR (Pt. 36) 505 at page 516 – 517 where the above definition was approved.”
What will constitute a miscarriage of justice may vary, not only in relation to particular facts, but also with regard to the jurisdiction which has been invoked by the proceedings in question, and to reach the conclusion that a miscarriage of justice has taken place does not require a finding that a different result necessarily would have been reached in the proceedings said to be affected by the miscarriage.
See Adigun v. A.G. of Oyo State (1988) 1 NWLR (Pt. 53) 628. It is enough if what is done is not justice

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according to law.
See Okonkwo v. Udo (1997) 9 NWLR (Pt. 519) 16 at page 20.

In this instant case, there has been fundamental irregularities in procedure of such character that we are unable to say that there has been no miscarriage of justice.
Unfortunately, the issue of trial within trial which ought to have been resolved in the proceedings in the Court below could not be resolved by the Court of Appeal.
Issue No. Two is accordingly resolved in favour of the Appellant.

Having resolved this all important issue in favour of the Appellant, I do not find it any longer necessary to consider the other issues in this appeal.

Based on Issue Two alone, this appeal is meritorious and it is allowed.

In the circumstance, the trial conviction and sentence of the Appellant on 27/6/2013 by I.O. Adeleke J. in Charge No. HIK/1C/2007 is hereby set aside.

However, as the trial of the Appellant was only vitiated by procedural irregularity, I consider it proper to make an order of re-trial. See Okafor v. State (1976) 5 SC 13; FRN v. Akabueze (2010) 17 NWLR (Pt. 1223)525 at 540 – 541.
Suit No. HIK/1C/2007 is accordingly remitted to the Hon. Chief Judge of Osun State for trial de novo before

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another Judge of the High Court of Osun State other than Hon. Justice I. O. Adeleke.

Other Citations: (2016)LCN/8689(CA)