Posu V. State (2020)

LAWGLOBAL HUB Lead Judgment Report

EJEMBI EKO, J.S.C.

The Appellant, convicted and sentenced accordingly for the murder of Abel Afolabi has further appealed to this Court following the dismissal of his appeal at the Lower Court (the Court of Appeal, Ibadan Division). This appeal is thus against the concurrent decisions of the two Courts below.

Only one issue has been proposed for the determination of this appeal. That is –

Whether the learned Justices of the Court of Appeal were right when they affirmed the decision of the High Court of Ogun State sitting at Ilaro convicting and sentencing the Appellant for murder?

The only eye witness called by the prosecution was the PW.1 – one Alani Oderinde. His extra-judicial statement, Exhibit A, dated 7th June, 2009, was put into the proceedings ostensibly for the purpose of contradicting his testimony in Court. He testified on 21st March, 2012. Exhibit A rather reinforcing the Pw.1’s testimony was admitted in evidence unopposed.

The substance of Pw.1’s evidence is: on 3rd June, 2009, he attended a naming ceremony/party. There at the naming ceremony, a fellow “commercial motorcycle operator”, Fatiu phoned and informed him that he was involved in an accident and hospitalised. The PW. 1, conveyed the deceased, Abel, the Chairman of the Commercial Motor Cycle Riders Association on his motor cycle and together they went to the hospital to see Fatiu and others involved in the accident. The deceased, Abel, paid Fatiu’s bills and he was taken home.

Pw.1 further narrated: he conveyed the deceased on his motorcycle. On the way, Samuel Posu, the Appellant, and his friend, Lawale, accosted the PW.1 and the deceased. He further slapped the deceased; on alighting from the motorcycle the deceased wanted to fight the Appellant back. As the Pw.1 was stepping off the motorcycle, the Appellant “removed a knife from his pocket and stabbed Abel (the deceased) on the chest”. It is clear from Pw.1’s evidence that only the Appellant attacked and stabbed the deceased with knife.

In the course of his evidence, the extra-judicial statement of the Pw.1 dated 7th June, 2009 was admitted in evidence as Exhibit A without objection. The PW.1, under cross-examination, insisted that his oral evidence was not in conflict with Exhibit A. It does not clearly appear that the defence tendered Exhibit A under Section 232 of the Evidence Act, 2011 for the purpose of contradicting the Pw.1. The proceeding at page 17 does not show that the defence counsel, who was cross-examining the Pw.1, had drawn the attention of the PW.1 to that portion of Exhibit A he intended to use to contradict the PW. 1 with. That is the sine qua non for the operation of Section 232 of the Evidence Act. That is: “if it is intended to contradict such witness by the writing (as Exhibit A), his (witness) attention must, before such … contradictory proof is given, be called to those parts of the writing which are to be used for the purpose of contradicting him:” – Exhibit A is not prima facie inadmissible in evidence under the Evidence Act.

The purpose of Section 232 of the Evidence Act is to checkmate double speaks by witnesses in order to obtain truthful testimonies from them: S. Tamunowari – Annotation of The Nigerian Evidence Act 2 Ed, P. 520. I should think that Exhibit A is not an illegal piece of evidence merely because the defence failed in the purpose they wanted it for; particularly that the two Courts below found that it sharpened the consistency and credibility of the witness, Pw.1.

The defence generally had no obligation to prove either the guilt or innocence of the accused person. I agree as submitted by the Appellant’s counsel that the prosecution at all times must proffer evidence in proof of the guilt of an accused person. See UDOSEN v. THE STATE (2007) 4 NWLR (pt. 1023) 125 at 150. The Court, however, will not shut its eye against a piece of evidence introduced into the prosecution’s case that materially supports the prosecution’s case against the defendant.

The Appellant seems to prevaricate profusely on Exhibit A. It was tendered by his counsel purporting that it materially contradicted the Pw.1. It turned out, rather, that Exhibit A establishes Pw.1’s consistency for purposes of his credibility. Its purpose having failed, Appellant’s counsel now turns around to attack the admissibility of the same Exhibit A. He cannot do that. The rule that a party must be consistent in his pleading or argument does not permit the prevarication of the Appellant herein.

In any case, the sole issue proposed for the determination of this appeal, earlier reproduced, does not accommodate or admit any legal challenge to the admissibility of Exhibit A and its use by the two Courts below. The principle of audi alteram partem – one of the twin pillars of fair hearing, does not also permit an appellant arguing an issue not caught or subsumed in the grounds of appeal. Notwithstanding the lower Court finding specifically –

Exhibit A consequently left no doubt as to what cause the death of the deceased – the stab wounds inflicted (on him) by the Appellant;

no ground of appeal attacks this specific holding or finding of fact, as adverse, as it is, to the Appellant’s case.