Kehinde Olude V. The State (2018)

LAWGLOBAL HUB Lead Judgment Report

CHIMA CENTUS NWEZE, J.S.C.

The appellant herein was arraigned before the High Court of Lagos State for the offence of the murder of the deceased, R. A. Adisa. One Julius Adeniran Adeloye was charged with him. The Charge was subsequently, amended.

In the amended Charge, the appellant alone, was charged for the offence of the murder of the said deceased person, R. A. Adisa. Upon his arraignment on the amended Charge on May 9, 2005, the appellant pleaded not guilty. The respondent’s case was presented by five witnesses, namely, PW1; PW2; PW3; PW4 and PW5. On his part, the appellant, (as accused person], testified in his own defence.

Having heard the evidence of the witnesses for the Prosecution and the accused person [the appellant], the learned trial Jugde, Oyewole, J., (as he then was), convicted the appellant and sentenced him to death by hanging. His appeal against the judgment of the trial Court, having been dismissed by the Court of Appeal, Lagos Division, the appellant has approached this Court imploring it to set aside the concurrent findings of the lower Courts.

1

The appellant submitted the following four issues for the determination of this appeal, namely:

1. Whether in the absence of a Respondent’s Notice, the Court of Appeal had the jurisdiction in law to affirm the decision of the learned trial Judge on grounds other than the sole ground relied upon by the learned trial Judge
2. Whether by ignoring and giving no consideration whatsoever to the appellant’s arguments and submissions in his reply brief of argument, the Court of Appeal denied the appellant’s constitutional right to fair hearing
3. Whether from the facts and circumstances of this case, the Court of Appeal was right to hold that the respondent laid the legal foundation for the admission of exhibit P4 pursuant to Section 50 of the Evidence Act, 2011
4. Whether the Court of Appeal was right to hold that exhibit P4 was properly tendered and admitted in evidence

On the other hand, the respondent framed only one issue for the determination of this appeal. The sole issue was couched thus:

Whether considering the state of the evidence on record before the Court of Appeal, the lower Court’s judgment should be affirmed by this honourable

2

Court

Against the background of the principal agitations of the appellant in the Notice and Grounds of Appeal, I take the view that the respondent’s concise, albeit, commodious sole issue, neatly, encapsulates the four issues which the appellant put forward. This appeal would therefore, be determined based on this sole issue, that is-

Whether, considering the state of the evidence on record before the Court of Appeal, the lower Court’s judgment should be affirmed by this honourable Court

SUBMISSIONS OF THE PARTIES

APPELLANT’S CONTENTION

At the hearing of this appeal on January 11, 2018, Emmanuel Umoren, learned counsel for the appellant, adopted the Amended appellant’s brief filed on April 4, 2017. He also adopted the Reply brief filed on April 6, 2017. He urged the Court, based on the arguments in these briefs to allow the appeal.

In a nutshell, his arguments may be summed up thus. Since the appellant was charged with the offence of murder, the Prosecution had a duty to prove it beyond reasonable doubt. He cited the ingredients of the offence of murder. He contended that the trial Court found in favour of the

3

respondent based solely on the application of Section 164 (1), Evidence Act, 2011.

He contended that the trial Court did not rely on the testimonies of PW1 – PW 5 and the contents of exhibit P4, in arriving at the conclusion that the deceased person died, being the first ingredient of the offence of murder.

He maintained that the lower Court ignored submissions advanced in favour of the appellant. In his submission, this amounted to denial of fair hearing, Bayol v Ahemba [1999] 10 NWLR (pt 623) 3B1; Okafor v AG, Anambra State [1991] 6 NWLR (pt 200) 659, 678; Adigun v AG, Oyo State [1987] 1 NWLR (pt 53) 678; Obodo v Olomu [1987] 3 NWLR (pt 59) 111.

He canvassed the view that exhibits P1 – P4, appellant’s extra judicial statements to the Police were inadmissible, Section 34 (3) of the Evidence Act, 1990 [now, Section 50, Evidence Act, 2011]. He pointed out that, whereas the said exhibits were recorded by the IPO, Cpl Francis Ewemade, they were tendered at the trial by PW5, ASP Michael Oluelu, (Retd). He noted that Francis Ewemade’s absence was not explained,Njoku v State (1992) 8 NWLR (pt 262) 724 – 725. He urged the Court to expunge the said exhibits, Saidu

4

v The State [1982] NSCC (Vol 13) 70, 82. He observed that the appellant resiled from them, page 203 of the record.

Citing Section 34 (3) of the Evidence Act, he pointed out that the lower Court found that the exhibits were properly admitted in evidence, [page 279 of the record]. He complained that the respondent did not lay any foundation prior to the tendering of the said exhibits, page 156 of the record.

He maintained that the foundation for tendering exhibit P4 ought to be laid by the respondent before its admission in evidence, Olayinka v The State [2007] 9 NWLR (pt 1040) 561, 577 – 578. He urged the Court to hold that the lower Court, wrongly affirmed the admissibility of exhibit P4 and the same should be expunged.

He contended that the Prosecution’s evidence raised doubts as to the guilt of the appellant, Almu v State [2009] 10 NWLR (pt 1148) 31, 50; Ukwunnenyi v The State [1989] 4 NWLR (pt 114) 131, 156. He urged the Court to acquit and discharge the appellant.

RESPONDENT’S ARGUMENTS

On his part, the respondent’s counsel adopted the brief of argument filed on January 18, 2017, although, deemed filed on January 11, 2018. The

5

main thrust of the submissions may be summed up.

He referred to pages 203 – 204 of the record and contended that the ingredients of the offence of murder were clearly set out in those pages. He pointed out that this was a simple case of confession by the appellant to have murdered the deceased as per exhibit P4. He pointed out that, outside the said exhibit P4, the trial Court relied on other circumstantial evidence. Simply put, independent of the seven year rule, the trial Court relied on the appellant’s affirmation of the deceased person’s death together with all the other circumstantial evidence, including exhibit P4 to come to the conclusion that:

(a) The deceased was dead;

(b) His death was a result of the act of the appellant; and

(c) The act of the appellant was intended to cause the death of the deceased person.

He referred to pages 158 and 160 of the record for the appellant’s affirmation of the death of the deceased person.

He canvassed the view that the state of the evidence before the lower Courts points to the fact that deceased person was dead and it was the appellant who caused his death – he [appellant] killed

6

him [the deceased person] and did away with his corpse. He pointed out that Section 150 of the Evidence Act does not debar the preferment of a charge against a defendant when there is sufficient evidence pointing to the fact that he killed the deceased even in the absence of the corpse, Attah v State 1993 NWLR (pt 288) 406, 420 – 421. In the instant case, the appellant’s testimony was positive evidence of the death of the deceased person, Nwachukwu v State [2002] 12 NWLR (pt 782) 543, 569.

He submitted that the trial Court rightly relied on circumstantial evidence in coming to the conclusion about the deceased person’s death. Such circumstantial evidence, he pointed out, includes the fact that the appellant was the last person seen with the deceased person; the appellant was later established to be in possession of the deceased person’s newly-acquired car; the appellant procured PW3 to assist in disposing the deceased person’s newly-acquired car; the appellant admitted that the deceased person was actually dead while he offered no satisfactory explanation as to an alternative cause of death.

He drew attention to exhibits P1 – P4. In

7

Exhibit p4, the appellant confessed to killing the deceased person, Princewill v The State [1994] 6 NWLR (pt 353) 703, 713; Archie v State [1993] 6 NWLR (pt 302) 752, 770; Obidike v State (2014) 10 NWLR (pt1414) 53, 96 -97; Jua v The State [2010] 4 NWLR (pt 1184) 217, 258.

He pointed out that, in the instant appeal, the appellant’s confessional statements established a nexus between him and the commission of the offence charged, Section 28 of the Evidence Act, 2011; Torri v NPSN [2011] 13 NWLR (pt 1264) 365, 380 – 381; Hassan v The State [2011] 6 NWLR (pt 709) 286, 300 – 301; Shurumo v State [2010] 12 SC (pt 1) 73, 92; Amina Musa v State [2014] 25 WRN 101, 136 – 137.

Citing Section 30 of the Evidence Act, 2011, he drew attention to the concurrent findings of the lower Courts to the effect that the uncontradicted evidence derived from the testimonies of the Prosecution witnesses was sufficiently unequivocal as to the death of the deceased person and above all, that the appellant killed the deceased person. He referred to page 200 of the record for the trial Court’s findings on the un-discredited testimonies of the Prosecution’s witnesses. He contrasted

8

these with the trial Court’s findings that the appellant’s testimony was sly and calculated to deceive the Court, page 200 of the record. He pointed out that the trial Court had the primary duty to receive admissible evidence, Millitary Govt of Lagos State and Ors v Adeyiga and Ors [2012] SC (pt 1) 30, 114; Adeleke v Iyanda [2001] 13 NWLR (pt 729) 1, 20.

He drew attention to the lower Court’s affirmation of the above findings, [page 282 of the record]. These concurrent findings, in his submission, can only be tampered with if they are perverse, Obueke v Nnamchi (2012) 12 NWLR (pt 1314) 327, 355 -356; NP Plc v B. P. PTE Ltd (2012) 3 NWLR (pt 1333) 454, 487. He maintained that it was not enough for the appellant to allege perversity. He must show in what manner it has occasioned injustice, Onu v ldu (2006) 12 NWLR (pt 995) 657, 676.

He derided the submission on the inadmissibility of Exhibit P4, citing page 140 of the record. He maintained that Cpl Ewemade’s absence was explained [page 156 of the record. Above all, PW5 was the head of the team that investigated the matter. He distinguished Njoku v . The State (supra). He observed that PW5, apart from

9

being Ewemade’s boss, had personal knowledge and intimate relationship with the document in question, Ojo v Gharoro [2006] 10 NWLR (pt 987) 173, 203.

He contended that the appellant’s argument on fair hearing was irrelevant as the trial Court did not solely rely on the seven year rule to establish the death of the deceased person, F. M. H v C. S. A. Ltd [2009] 9 NWLR (pt 1145) 193, 222.; Wilson v Oshin [2000] 9 NWLR (pt 673) 442, 462 – 463 and Ntuks v NPA [2000] 1 NWLR (pt 654) 639, 650. He urged the Court to discountenance the submission on this point and affirm the concurrent findings of the lower Courts.

APPELLANT’S REPLY

As indicated earlier, the appellant’s counsel, equally adopted the Reply brief of April 6, 2017 which was deemed properly filed on January 11, 2018. He devoted paragraphs 2.01 – 2.18, pages 2-6 thereof to issues that are both relevant and otherwise.

RESOLUTION OF THE SOLE ISSUE

My Lords, as shown at the outset of this judgment, the appellant was charged with the offence of murder: an offence whose ingredients have been so frequently, commented upon that both the Prosecution and defence ought to be familiar with

10

the decisions at the tip of their fingers. For instance, in Tajudeen Iliyasu v The State [2015] LPELR – 24403 (SC) 25; B -G, this Court [per Nweze, JSC] held that:

Under the said section, the prosecution is obliged to prove: (1) that the deceased died; (2) that his/her death was caused by the accused; (3) that she/he intended to either kill the victim or cause her/him grievous bodily harm. These ingredients … have witnessed consistent espousal in many jurisdictions, for example, by English Courts, R v Hopwood(1913) 8 Cr. App. R. 143; Hyan v DPP (1974) 2 All ER 41; Woolmington v DPP (1935) AC 462; by Nigerian Courts, Madu v State [2012] 15 NWLR (pt 1324) 405, 443, citing Durwode v State [2000] 15 NWLR (pt 691) 467; Idemudia v State [2001] FWLR (pt 55) 549, 564; [1999] 7 NWLR (pt 610) 202; Akpan v State [2001] FWLR (pt 56) 735; [2000] 12 NWLR (pt 682) 607 and by Courts in other Commonwealth jurisdictions, see for example, R. v Nichols (1958) QWR 46; R v Hughes (1958) 84 CLR 170; Timbu Kolian v The Queen (1968) 42 A. L. J. R.; R. v. Tralka (1965) Qd, R. 225, (Queensland, Australia).

Now, at pages 203 – 204 of the record, the learned trial Judge, Oyewole,

11

J (as he then was), with reference to the appellant’s extra-judicial confessions, proceeded thus:

In each of the said statements, the defendant [now, appellant] supposedly gave various accounts of how the deceased [person] met his death and in exhibit P4 exonerated the various individuals to which (sic) he ascribed roles in the earlier statements. In the said exhibit P4, the defendant allegedly made direct confession to (sic) the crime and gave an account of how he murdered the deceased [person].

[page 203 of the record; italics supplied for emphasis]

The trial Court, then turned to the legal effect of the appellant’s resiling from exhibit P4. The Court correctly, stated the position of the law thus:

Having resiled from this statement, the position of the law is that the said statement, exhibit P4, will be considered and evaluated alongside other available evidence in reaching a decision notwithstanding that the defendant has resiled therefrom in his testimony in open Court, Egbohonome v State [1993] 7 NWLR (pt 306) 383; Ibina v State [1989] 5 NWLR (pt 120) 238, 248 and Nwosu v State [1998] 8 NWLR (pt 562) 433, 442.

12

Emboldened by these authorities, the trial Court went on to evaluate the said exhibit P4 with the other available evidence. These were the Court’s findings sequel to this exercise:

A cursory examination of the said statement, exhibit P4, alongside the testimonies of the Prosecution witness (sic) reveals that the account given in exhibit P4 is consistent with the testimonies of PW1, the defendant’s father and PW3, his friend who kept the car of the deceased [person] from (sic) him and also disposed it on his behalf. There is no doubt in my view of the accepted testimony of PW2 that the defendant had the opportunity to commit the alleged offence. In the entire circumstances therefore, I shall give evidential value to exhibit P4 as a direct confession of the defendant.

On the crucial first ingredient of the offence of murder, this was the trial Court’s finding:

It may be instructive to point out that while PW2 and PW4, who knew the deceased [person] in his lifetime did not refer to him as dead in their testimonies before the Court, the defendant in the witness box had no inhibition in referring to him as deceased indicating knowledge of the unfortunate situation

13

of the said gentleman.

Against the background of the above findings, the trial Court came to the conclusion that:

In totality therefore I hold that sufficient evidence exists before the Court to the inevitable conclusion beyond any reasonable doubt that the defendant murdered the named deceased [person], Mr R. A. Adisa, as alleged by the Prosecution, the defendant is not availed of any defence in respect thereof and I therefore find him guilty as charged and I hereby convict him accordingly.

[pages 203 – 204 of the record; emphases by the trial court]

The trial Court’s further findings on the probative force of the testimonies of the Prosecution’s witnesses vis–vis the probative value of the testimony of the appellant [as defendant] are worthy on note. Listen to this comparison:

None of the Prosecution witnesses was discredited under cross-examination. Their testimonies stand before the Court unshaken and shall be accorded necessary evidential value…

[page 200 of the record; italics supplied for emphasis]

On the contrary, the trial Court found that:

The defendant in his testimony was sly and obviously

14

out to deceive the Court. His posture that PW1, his father and PW3, his stated friend, lied against him hold no water. These are witnesses who were not subjected to any form of cross-examination thereby indicating an acceptance of all they stated, Offorlette v State (2000) (sic) FWLR (pt 12) 20181, 1202.

I find the testimony of the defendant unacceptable, it is riddled with lies and I totally reject it.

[page 200 of the record; italics supplied for emphasis]

The appellant’s appeal, as indicated earlier, was unsuccessful. Indeed, the lower Court affirmed the findings of the trial Court at pages 282 -283 of the record. Hear this:

The unchallenged evidence of the PW1 PW5 relied upon by the Court below put together and also disclosed that Mr R. A. Adisa was last seen alive with the appellant on 29 – 11 – 2000 and the appellant who is to explain what happened to Mr R. A. Adisa admitted in his confessional statement in exhibit P4 that he killed the deceased in cold blood and robbed him of his motor vehicle, a Honda saloon car, Exhibit P4, the confessional statement of the appellant, coupled with the evidence of the PW1 – PW5 were

15

therefore rightly relied upon by the Court below in its judgment in pages 202 – 203 of the record to convict the appellant….

My Lords, it would appear that the learned counsel for the appellant approached his duty most perfunctorily. If he had read the judgment of the lower Court in a fastidious manner, he would have realised that he had a herculean task at hand. Let me elucidate.

In the first place, the lower Courts made concurrent findings on the unchallenged testimonies of the PW1 – PW5. It is well-known that where evidence of a witness is uncontradicted or unchallenged, the Court would relate it to the applicable law, State v Oka (1975) 9 -11 SC 17; Aigbadion v State [2000] 7 NWLR (pt 666) 686; Pius v State (2015) LPELR – 24446 (SC) 1s -16; G -A; Ayeni v State (2016) LPELR- 40105 (SC).

Above all, this Court does not lightly interfere with the concurrent findings of lower Courts unless such findings are shown to be perverse or not the result of a proper exercise of discretion. Counsel for the appellant, thus, had a duty to demonstrate the perversity of those concurrent findings. Having failed to do so, there is no basis for this Court’s interference

16

with them,Sokwo v Kpongbo (2008) All FWLR (pt 410) 680, 695 – 696; H – A; Braimah v Abasi (1998) LPELR – 801 (SC) 34; C – E; Okonkwo v Okagbue [1994] 9 NWLR (pt 368) 301.

Simply put, if learned counsel wanted this Court to upset those concurrent findings of lower Courts he should have shown that there were exceptional circumstances for doing do. Thus, he had a duty to show that the findings are perverse; there was a miscarriage of justice or that a principle of Law or procedure was not followed, Ogbu v. State (1992) 8 NWLR (pt. 295) 255; Igago v State [1999] 14 NWLR (pt. 637) 1; Adeyemi v The State [1991] 1 NWLR (pt. 170) 679; Adeyeye v The State (2013) LPELR – 19913 (SC) 46; Akpabio v State (1994) 7 NWLR (pt 359) 635; Ejikeme v Okonkwo [1994] 8 NWLR (pt 362) 266. He failed in all respects.

Quite apart from the above, as the lower Court found, from:

The unchallenged evidence of the PW1 – PW5 relied upon by the Court below put together and also disclosed that Mr R. A. Adisa was last seen alive with the appellant on 29 – 11 – 2000 and the appellant who is to explain what happened to Mr R. A. Adisa.

[pages 283 -284 of the record; italics

17

supplied for emphasis]

The appellant failed to explain what happened to R. A, Adisa. The lower Court was thus right in invoking the last seen doctrine against the appellant. As this Court held in Iliyasu v State (2015) LPELR – 24403 (SC) 44 -46; E F, [per Nweze, JSC]:

The last seen doctrine, a doctrine of global application, Madu v The State (2012) LPELR -7867 (SC) 51-52; [2012] 15 NWLR (pt 1324) 405; [2012] 6 SCNJ 129; (2012) 6 SC (pt 1) 50; [2012] 50 NSCQR 67, also referred to as ‘the last seen theory’ Ralashkhanna v State of A.P (2006) 10 SCC 172, is applied in homicide cases in Nigeria, Rabi Ismail v The State (2011) MJSC 20, 77. It creates a rebuttable presumption to the effect that the person last seen with a deceased person bears full responsibility for his or her death, Jua v The State [2010] 2 MJSC 152, 186 -187.

Thus, where an accused person was the last person to be seen in the company of the deceased person, he has a duty to give an explanation relating to how the latter met his or her death. In the absence of such an explanation, a trial Court and even an appellate Court will be justified in drawing the inference that he

18

[the accused person] killed the deceased person, Igabele v State [2006] 6 NWLR (pt.975) 100; Obosi v State (1965) NMLR 140; Nwaeze v The State [1996] 2 SCNJ 47, 61- 62; Gabriel v. State [1989] 3 NWLR (pt122) 457; Adeniji v. State (2001) 87 LRCN 1970; Madu v The State(supra); Igho v The State (1978) 3 SC 87,254; [1978] 3 SC 61, 63.

In view of the said doctrine therefore, it is the duty of the accused person to give an explanation relating to how the deceased met his or her death, Surely, in the absence of such an explanation, a trial Court and even an appellate Court, will be justified in drawing the inference that the accused person killed the deceased, Igabele v The State (supra); Obosi v. State (supra); Adepetu v The State (1998) 7 SCNJ 83; [1998] 9 NWLR (pt. 565) 185; Adeniji v The State (supra); Emeka v The State (2001) 14 NWLR (Pt 734) 666, 683; (2001) 6 SCNJ 259; Uguru v The State (2002) 4 SCNJ 282, 293 (2002) 9 NWLR (Pt. 771) 90.

The doctrine has been held to be an exception to the watertight constitutional provision that a person is presumed innocent until proved guilty, Madu v The State (supra) 84, A-D, citing lgho v. State (1978) 35

19

SC 57, 62 – 63; Igabele v State (supra); Nwaeze v State (supra); Obosi v State (supra); Uguru v. State (supra); The State v. Kalu (1993) 7 SSCNJ 113, 124 125; Adepetu v. The State (supra); Rabi Ismail v. The State (2011) MJSC 28, 77.

Apart from his failure to explain R. A. Adisa’s whereabout, he even “admitted in his confessional statement in exhibit P4 that he killed the deceased in cold blood and robbed him of his motor vehicle, a Honda saloon car,” (pages 283 of the record). In effect, the fact that he resiled from exhibit P4 in Court did not affect its admissibility.

It is no longer open to conjecture that a free and voluntary confession of guilt, whether judicial or extrajudicial, if it is direct and positive and, properly, established, is sufficient proof of guilt. As such, it is enough to sustain a conviction so long as the Court is satisfied with the truth thereof, Yesufu v The State [1976] 6 SC 167, 173; Okegbu v The State [1984] 8 SC 65; Kim v The State [1992] 4 SCNJ 81, 110; (1992) 4 NWLR (pt. 233) 17; Ikpo and Anor v. The State [1995] 2 SCNJ 64, 75; [1995] 9 NWLR (Pt. 421) 540.

Other cases include:Igago v The State [1999] 12 SCNJ

20

140; [1999] 6 NWLR (pt. 608) 568; Hassan v The State [2001] 7 SCNJ 643; [2001] 7 NSCQR 107, 109; [2001] 15 NWLR (pt.735) 184; Olalekan v State [2002] 4 WRN 146; [2001] 18 NWLR (pt.746) 793, 824; Salawu v. State (1971) NMLR 249; Nwachukwu v The State (2007) LPELR -8075 (SC) 34, 36.

However, outside the confession, it is desirable to have some corroborative evidence, no matter how slight, of circumstances which make it probable that the said confession is true and correct. The reason for this prescription is simple: Courts are not generally disposed to act on a confession without testing the truth thereof, Onochie and Ors v The Republic (1966) NMLR 307; R v. Sykes (1913) 8 CAR 233,236.

For the purpose of the test, the Court would be expected to consider the question: whether the accused person had the opportunity of committing the offence charged and whether the confession was consistent with other facts which have been ascertained and proved at the trial

There are actually several cases on this point. However, only a handful will be cited here, Queen v. Obiasa (1962) 1 ANLR 65; [1962] 2 SCNLR 402; Ikpasa v. Attorney-General of Bendel State

21

[1981] 9 SC 7; Akpan v The State (1992) 6 NWLR (pt. 248) 439, 460; [1992] 7 SCNJ 22; Kanu v The King (1952) 14 WACA 30; The Queen v. Obiasa (1962) 1 All NLR 651; [1962] 1 SCNLR 137; Obosi v The State (1965) NMLR 129; Jafiya Kopa v. The State (1971) 1 All NLR 750, Dawa v The State [1980] B -11 SC 236; Ejinima v The State [1991] 5 LRCN 1640, 1677; Arthur Onyejekwe v The State (1992) 4 SCNJ 1, 9; [1992] 3 NWLR (Pt. 230) 444; Aiguoreghian and Anor. v. The State (2004) 3 NWLR (pt 860) 367; (2004) 1 SCNJ 65; [2004] 1Sc (pt.1) 65.

From its above findings, it is not in doubt that the trial Court, rigorously and meticulously, observed these prescriptions. Little wonder then why the lower Court had no hesitation in affirming its approach. For the avoidance of any doubt, this was how the trial Court approached the issue. At pages 203 – 204 of the record, the learned trial Judge, Oyewole, J (as he then was), with reference to the appellant’s extra-judicial confessions, proceeded thus:

In each of the said statements, the defendant [now, appellant] supposedly gave various accounts of how the deceased [person] met his death and in exhibit P4 exonerated the various

22

individuals to which (sic) he ascribed roles in the earlier statements. In the said exhibit P4, the defendant allegedly made direct confession to (sic) the crime and gave an account of how he murdered the deceased [person]

[page 203 of the record; italics supplied for emphasis]

His Lordship then, turned to the legal effect of the appellant’s resiling from exhibit p4. The Court correctly stated the position of the law thus:

Having resiled from this statement, the position of the law is that the said statement, exhibit p4, will be considered and evaluated alongside other available evidence in reaching a decision notwithstanding that the defendant has resiled therefrom in his testimony in open Court, Egbohonome v State [1993] 7 NWLR (Pt 306) 383; Ibina v State [1989] 5 NWLR (pt 120) 238, 148 and Nwosu v State (1998) 8 NWLR (pt 562) 433, 442.

The trial Court fully armed with these authorities, went on to evaluate the said exhibit P4 with the other available evidence. These were the Court’s findings sequel to this exercise:

A cursory examination of the said statement, exhibit P4, alongside the testimonies of the Prosecution witness (sic)

23

reveals that the account given in exhibit P4 is consistent with the testimonies of PW1, the defendant’s father and PW3, his friend who kept the car of the deceased [person] from (sic) him and also disposed it on his behalf. There is no doubt in my view of the accepted testimony of PW2 that the defendant had the opportunity to commit the alleged offence. In the entire circumstances therefore, I shall give evidential value to exhibit P4 as a direct confession of the defendant.

Learned counsel for the appellant, in what would appear to be the last attempt to drum up a defence for the appellant, raised the question of fair hearing at page 4.39 of the appellant’s brief of argument. With respect, this approach of the appellant’s counsel reminds me of the eloquent formulation in Adebayo v AG, Ogun State (2008) LPELR -80 (SC) 23- 24. For its bearing on the fortune of the appellant’s case, I crave Your Lordships’ indulgence to quote this Court’s view in extenso:

I have seen in recent times that parties who have bad cases embrace and make use of the constitutional provision of fair hearing to bamboozle the adverse party and the Court, with a view to moving

24

the Court away from the live issues in the litigation. They make so much weather and sing the familiar song that the constitutional provision is violated or contravened.

They do not stop there. They rake the defence in most inappropriate cases because they have nothing to canvass in their favour in the case. The fair hearing provision in the Constitution is the machinery or locomotive of justice; not a spare part to propel or invigorate the case of the user. It is not a casual principle of law available to a party to be picked up at will in a case and force the Court to apply it to his advantage. On the contrary, it is a formidable and fundamental constitutional provision available to a party who is really denied fair hearing because he was not heard or that he was not properly heard in the case. Let litigants who have nothing useful to advocate in favour of their cases, leave the fair hearing constitutional provision alone because it is not available to them just for the asking.

[Italics supplied for emphasis]

From all indications, the appellant has nothing useful to advocate in favour of [his appeal]…. [Accordingly, he is advised to]

25

leave the fair hearing constitutional provision alone because it is not available to [him] just for the asking,”

Lastly, learned counsel for the appellant cited Section 50 of the Evidence Act, 2011 in an attempt to disrobe exhibit P4 of any probative value. The question is: does this section avail the appellant In my view, it does not. In Ikpo and Anor v The State [1995] 9 NWLR (pt 421) 540; (1995) LPELR – 1488 (SC) 13; B -D, this Court held that Section 34 (3) of the Evidence Act [now, Section 50 of the Evidence Act, 2011), simply makes provision to the effect that the absence of a public servant required to give evidence in a judicial proceeding is sufficiently accounted for by the production of a Gazette, or a telegram or letter purporting to emanate from his head of department sufficiently explaining his absence to the satisfaction of the Court.

In the instant case, it is in evidence that PW5 was the head of the Investigating team. He read the statement, exhibit p4 and supervised its recording. Above all, PW5 testified in Court that CPL Ewemade could not attend the Court session because he had been dismissed from the Police Force. I therefore,

26

do not see how this Section could avail the appellant.

In all, I find no merit in this appeal. I have no option than to enter an order dismissing it as most unmeritorious. Appeal is hereby dismissed. I affirm the conviction of and sentence on the appellant by the lower Courts. Appeal dismissed.

SC.288/2014