Iliyasu Suberu V The State (2010)
LAWGLOBAL HUB Lead Judgment Report
A. FABIYI: J.S.C.
This is an appeal against the judgment of the court of appeal, Abuja Division (hereafter referred to as ‘the court below’) delivered on 30th April, 2009 which upheld the decision of Olusiyi, J. of the High Court of Justice, Okene, Kogi State on 28th May, 2007.
The appellant was charged along with three (3) other accused persons with the offences of criminal conspiracy and armed robbery contrary to section 97(1) and 298 (c) of the Panel Code. The prosecution called three (3) witnesses and closed its case. A no-case submission was made on behalf of the appellant. The trial judge overruled it. The appellant appealed to the court below which dismissed same. The appellant has further appealed to this court.
It is apt to state the facts of this matter briefly. P.W.1 came from Port Harcourt to visit his family in Okene on 30th April, 2003. At about 11.00 pm, he heard a noise on the deck of his house. When he opened the door to find out the source of the noise, he was confronted by the 2nd accused who had a gun with him. The 2nd accused ordered P.W.1 to produce the money he had on him. P.W.1 said he gave him N25,000.00 which he said was not enough. He further gave the 2nd accused N15,000.00. When the 2nd accused left, P.W.1 said he raised an alarm with P.W.2 and neighbours came to sympathize with him. P.W.1 said the 2nd accused fell into a well in his premises from which he was brought out with a rope. The 2nd accused told P.W.1 that it was the 1st accused who led him to the house of PW1 to rob.
P.W.1 did not see the appellant who was the 3rd accused at the time of the commission of the crime. The P.W.2, the sister-in-law of PW1 did not say anything about the 3rd accused. Under cross-examination, she agreed that she did not see the 3rd accused. The PW3, the investigating Police Officer (IPO) recorded the statement of the 4th accused, to with, Exhibit 1. He did not state any role played by the appellant.
Based on the above evidence, Mr. Aliyu, learned counsel for the appellant, made a no-case submission on behalf of the appellant in that no evidence connected him to the offence. He submitted that by section 27(3) of the Evidence Act, Exhibit 1 is not evidence against the 3rd accused who denied committing the offence. He urged that the 3rd accused be discharged.
Mr. Jamil, the Chief Legal Officer for the prosecution, at page 46 line 6 – 7 of the transcript record of appeal commendably stated thus:-
“We agree with the no-case submission of learned counsel for the 3rd accused.”
On 28/5/2007, the learned trial judge, in his ruling, overruled the no-case submission relying particularly on Exhibit ‘1’, statement of the 4th accused person wherein the name of the 3rd accused was mentioned.
As stated earlier on in this judgment, the court below dismissed the appellant’s appeal. It placed reliance on the evidence adduced by the prosecution; especially Exhibit ‘1’.
In the appeal before this court, briefs of argument were filed and exchanged. On the 28th January, 2010, learned counsel for the parties adopted their respective brief of argument. The sole issue formulated on page 3 of the appellant’s brief reads as follows:-
“Whether the learned justice of the court of appeal were right to hold that a prima facie case had been established against the appellant.”
Learned counsel for the respondent adopted the issue decoded by the appellant as reproduced above.
Learned counsel for the appellant submitted that there is no evidence which linked the appellant with the offences alleged against him from the totality of the evidence adduced by the three witnesses called by the prosecution. He asserted with force that since Exhibit 1 is a statement made by the 4th accused, such a confession statement of a co-accused is no evidence against the appellant who did not adopt the statement. He referred to section 27 (3) of the Evidence Act, Cap E 14 LFN 2004, as well as Rule 7 (1) of the Criminal Procedure (Statement to Police Officers) Rules, 1960 and cited the a cases of R. v. Afose & Ors. (1934) 2 WACA 118; Ozaki & Anr. v. The State (1990) All NLR 94 at 116 – 117; Yongo v. C.O.P. (1992) 8 NWLR (Pt.257) 36 at 58 – 59.
Learned counsel submitted that the court below wrongly treated Exhibit 1 as if it were evidence given by a co-accused which is governed by section 178 (2) of the Evidence Act as against an extra judicial statement as herein made by a co-accused which is governed by section 27(3) of the Evidence Act. He felt that a statement of a co-accused remains a statement and not his evidence. He cited Ogiri & Anr v. The State (1978) NNLR 1 at 5; Chukwueke v. The State (1991) 7 NWLR (Pt.205) 604 at 616.
Further, learned counsel observed that the court below held that Exhibit ‘1’ was admissible against the appellant because it was relevant. He submitted, with respect to the court below, that relevancy is not the only test for admissibility as a document may be relevant and still be excluded if there is in existence a law that renders it inadmissible. He gave an example of a deed of conveyance which may be relevant in an action for declaration of title and yet, excluded because it had not been registered.
Learned counsel also observed that the court below held that it was premature for the appellant to have contended that Exhibit ‘1’ could not be used against him at the stage of no-case submission. Again, he submitted with respect, that such is not correct law. He felt that at the stage of a no case submission, the court is called upon to consider the case against an accused person and determine whether a prima-facie case had been made out against him and as at that stage, the court can only act on legally admissible evidence. He cited Chianugo v. The State (2002) 2 NWLR (Pt.750) 225 at 233 – 234, Emedo v. The State (2002) 15 NWLR (Pt.789) 196 at 205; Kankia v. Maigemu (2003) 6 NWLR (Pt.817) 496 at 518.
Learned counsel submitted that if the evidence is inadmissible, the court cannot make used of it at any stage and that it is even so where no objection has been raised against it at the trial. He cited Alade v. Oludade (1976) 2 FNR 10 at 13. He urged the court to hold that Exhibit 1 is inadmissible against the appellant and that it should be excluded from the consideration of the case preferred against the appellant by the prosecution.
Learned counsel noted it that the court below, on page 108 of the record, made reference to the confessional statement allegedly made by the appellant. He felt that since it was not tendered at the trial court, it could not be considered by the court below as it was not an exhibit in the case. He urged that same be disregarded as it only formed part of the proof of evidence which was not tendered by the prosecution.
Finally, learned counsel submitted that since none of the prosecution witnesses gave evidence incriminating the appellant and Exhibit 1 was not legally admissible against the appellant, there is no evidence linking him with the commission of any crime alleged against him. He urged that the appeal be allowed and that the appellant should be discharged.
On behalf of the respondent, learned counsel cited the cases of Ibeziako v. Police (1963) SCNLR 99 and Gabriel Aituma v. The State (2006) 10 NWLR (Pt.989) 452 at 473. He observed that a no-case submission means no more than that there is nothing in the evidence adduced by the prosecution that would persuade the court to compel the accused to put up his defence. He felt that the question whether the court believes or does not believe the evidence adduced does not arise at that stage.
On the meaning of a prima facie case, learned counsel cited Fidelis Ubanatu v. COP (1999) 10 NWLR (Pt.611) 512; Sunny Tongo & Anr. V. Police (2007) 12 NWLR (Pt.1049) 525 at 539; 548.
Learned counsel submitted that the trial court did not say that the appellant should prove his innocence but that there is uncontradicted evidence that is sufficient which linked him with the offence(s) charged. He observed that the appellant did not cross-examine PW3 when he tendered Exhibit 1 – the confessional statement of the 4th accused. He finally submitted that the below was right in dismissing the appellant’s appeal.
It is certain that a submission that there is no-case to answer should only be upheld if any of the two situations stated hereunder prevails at the end of the prosecution’s case:-
(1) When there was been no evidence connecting the accused person with the alleged offences(s).
(2) When the evidence adduced by the prosecution has been so discredited as a result of cross-examination or is manifestly unreliable but no reasonable tribunal could safely convict on it.
The above is as pronounced by this court in Ibeziako v. Police (supra). See also Gabriel Aituma v. The State (2006) 10 NWLR (Pt.989) (supra) at page 473. A no-case submission only means that there is nothing in the evidence adduce by the prosecution that would persuade the court to compel the accused to put up his defence.
In this appeal it is apt that a no-case submission was made on behalf of the appellant after the close of the prosecution’s case. The learned trial judge, in overruling the no-case submission, had this to say at page 47 lines 13-17 of the record of appeal:-
“After carefully considering the evidence adduced by the prosecution, particularly exhibit 1 wherein the name of the 3rd accused was mentioned, I am satisfied that a prima facie case has been made out against the 3rd accused person.”
The appellant appealed to the court below. In dismissing the appeal, the court below at page 102 – 103 of the record stated as follows:-
“Having considered all I have before us including the evidence of the prosecution, the documents especially Exhibit ‘1’ the statement of the co-accused and finally the Ruling or Decision of the trial judge, and bearing in mind that at this stage the less said, the better in order not to jeopardize the trial which is still with the possibility of being on-going. I see nothing before me upon which I can place disagreement in the decision of the trial judge which conclusion I am satisfied was properly reached. Therefore the trial in the court below ought not to be further delayed as I am of the same mind that indeed the prosecution has made as prima facie case for which the appellant as 3rd accused should be called to defend the charge against him.”
I need to point it out here without any equivocation that none of the three witnesses called by the prosecution said anything negative against the appellant. None of them mentioned his name to connect him with the commission of the offences. The two courts below clung tenaciously to the contents of Exhibit 1, the extra judicial statement of the 4th accused person. The said exhibit is a statement made by a co-accused. Section 27(3) of the Evidence Act in respect of same provides as follows:
“27(3) – Where more persons than one are charged jointly with a criminal offence and a confession made by one of such persons in the presence of one or more of the other persons so charged is given in evidence the court, or a jury where the trial is one with jury, shall not take such statement into consideration as against any of such other person in whose presence it was made unless eh adopted the said statement by words or conduct.”
In this matter, P.W3 – the Investigating Police Officer (IPO) did not say that Exhibit 1 was made in the presence of the appellant. As well, P.W3 did not say that when the statement was made by the 4th accused, the appellant adopted it by words or conduct. In a similar situation in the case of The State v. Onyeukwu (2004) 7 SCNJ 1, this court held that the confession of Olatunji is not evidence against the respondent (co-accused) in that case but is a relevant fact against only Olatunji, the maker, by virtue of section 27(3) of the Evidence Act. It is therefore clear to me that Exhibit 1, the statement of the 4th accused, cannot therefore be taken into account against the appellant when his no-case submission was considered.
It is imperative to state it that the court below wrongly treated Exhibit 1 as if it were evidence given by a co-accused at the trial. There is a gulf of difference between an extra judicial statement made by a co-accused which is governed by section 27(3) of the Evidence Act and evidence given by a co-accused on oath which is governed by section 178(2) of the Evidence Act. An extra judicial statement by a co-accused remains a statement and not his evidence. It is binding on the maker only. See: Ogiri & Anor v. The State (supra) at page 5; Chukwueke v. The State (supra) at page 616 both cited by learned counsel for the appellant.
The above is still not the end in respect of the said Exhibit 1 under fire. The Criminal Procedure (Statement to Police Officers) Rules, 1960 which is applicable to Kogi State regulates the manner in which Police Officers are to record extra judicial statements made by accused persons. Rule 7 (1) provides as follows:-
“When a police office has decided to make the same compliant against two or more persons and there statements are taken separately, the police officer shall not read such statement to the other person or persons, but each of such persons shall be given a copy of such statements and nothing shall be said or done by the police to invite a reply.”
It is not on record that P.W.3 gave the appellant opportunity to react to the statement of the 4th accused – Exhibit 1. If the prosecution intended to employ Exhibit 1 against the appellant, a copy of same should have been made available to him. Since it was not made available to him, it ought not to have been used against him. Exhibit 1, in the prevailing circumstance is not a legally admissible evidence against the appellant when considering his case. The case of R. V. Afosa & ors (Supra). Ozaki & Anr. V. The State (supra) and Yongo v. Cop (supra) are all in point here.
The court below held that Exhibit 1 was admissible against the appellant because it was relevant. With due respect, relevancy is not the only yardstick or test for admissibility. A document may be relevant and still be excluded if there is in existence a law, like the provision of section 27(3) of the Evidence Act, which renders Exhibit 1 inadmissible as against the appellant. it is akin to a deed of conveyance though relevant in an action for declaration of title and yet may be excluded because it had not been registered. This is not a ‘spurious correlation’; if I am employ the Economist’s terminology. I am of the considered opinion that the court below goofed in the stance taken by it in this respect.
The court below also held that it was premature for the appellant to have contended that Exhibit 1 could not be used against him at the stage of a no-case submission. I feel that such is no correct. This is because at that stage, the court is called upon to consider the evidence on ground and determine whether a prima facie case had been made out against the appellant. The court, at that stage, can only act on legally admissible evidence. See: Chianugo v. The State (supra) at 233 and Emedo v. The State (supra) at 205.
It is the law that if evidence is inadmissible, the court cannot make use of it at any stage. This is even so where no objection has been raised against it at the trial. See: Alade v. Oludade (supra) at page 13; (1976) 10 NSCC 34. The court below ought to have discountenanced Exhibit 1. It is hereby excluded from the consideration of the case preferred against the appellant by the prosecution. After all, a court is expected in all proceedings before it to act only on evidence which is admissible in law.
At page 108 of the record of appeal, the court below made reference to the confessional statement allegedly made by the appellant. The Statement was not tendered at the trial. It was not exhibit in the case. The prosecution did not make out such a case both at the trial court and at the court below. A court should not set up for parties a case different from the one set up by the parties themselves. See: Oniah v. Onyiah (1989) 1 NWLR (Pt.99) 514; Ojo-Osagie v. Adonri (1994) 6 NWLR (pt.349) 131.
Not only that. It appears as if the point was raised suo motu without hearing from the appellant’s counsel. A judge should not descend into the arena. A court has no duty to bridge the yawning gap in the case of a party. This is more so since this is a criminal matter. Refer to Ajuwon v. Akanni (1993) 9 NWLR (Pt.316) 182; Salubi v. Nwariaku (1997) 5 NWLR (Pt.505) 422; Olorunfemi v. Ors. v. Asho & Ors. (1999) 1 NWLR (Pt.585) 1 at 9.
I strongly feel that since none of the prosecution witnesses gave any evidence incriminating the appellant and since Exhibit 1 was not legally admissible against him, there is no evidence linking him with the commission of any crime. I have no iota of doubt in my mind that the appellant is entitled to a discharge order. For the above reasons, I answer the only issue formulated in this appeal in the negative.
In conclusion, I find that the appeal is very meritorious. It is hereby allowed. The judgment of the court below is hereby set aside. I order that the appellant is hereby discharged as the no-case submission made on his behalf is rooted on a rock.
SC.199/2009