State V. Oladejo Ogunkanmi & Ors (2013)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

MONICA B. DONGBAN-MENSEM, J.C.A. (Delivering the Leading Judgment)

The Appellant who was the prosecution at the trial court is dissatisfied with the judgment of Hon. Justice Boade J. of the Oyo State High Court of Justice holden at Ogbomoso Judicial Division delivered on Tuesday the 31st day of March, 2009. The Respondents/accused persons were charged with two counts of charge to wit: Conspiracy to commit Arson contrary to Section 516 of the Criminal Code, Cap. 38 Vol. 11 Laws of Oyo State of Nigeria and Arson contrary to and punishable under Section 445 of the criminal Code, Cap.38 vol. II Laws of Oyo State of Nigeria.

The accused persons were discharged and acquitted by the trial court for the failure of the prosecution to proof the allegations against the accused persons.

The Appellant raised two grounds of appeal (pages 115-116 of the records of proceedings) and formulated three issues for determination as follows:-

1. Whether Exhibit 1 was properly received in evidence having regard to the provisions of Sections 199 and 209 of the Evidence Act,Cap.E 14 Law of the Federation of Nigeria,2004.

Whether learned trial Judge was not wrong in using Exhibit 1 which was wrongly admitted to discredit the sworn oral evidence of PW1.

3. Whether or not the trial Judge properly and correctly evaluated the evidence and came to the right decision by holding that the prosecution had failed to prove its case against the accused persons beyond reasonable doubt.

The Respondents formulated two issues for determination as follows:-

1. Whether Exhibit 1 was inadmissible notwithstanding the provision of Sections 199 and 209 of the Evidence Act Cap. E 14 Laws of the Federation of Nigeria 2004.
2. Whether prosecutions at all proved their case beyond reasonable double with or without Exhibit 1.

Issue One

The learned Counsel for the Appellants N. O. Okeniyi (DPP) submits that Exhibit 1 is not a legal evidence, as same was wrongly admitted without compliance with Section 199 and 209 of the Evidence Act and therefore should expunged from the record in spite of the fact that the admissibility of the statement was not opposed by the prosecution. (Refer Arehia v. The State (1982) 4 S.C. 78 @ 90, Adisa v. The State (1964) 1 All NLR 200 @ 202, Ekang v. The State (2001) 11 NWLR (Pt. 773) p.1 @ 25)

Counsel further submits that in criminal trials unlike in civil trials, a party who did not object to the admissibility of a piece of evidence at the trial court is not barred from raising such an objection at appeal. Unity Life & Fire Insurance Co. Ltd. v. IBWA (2001) 7 NWLR (Pt. 713) p.610 @ 626-627, Hausa v. The State (1992) 1 NWLR (Pt. 219) p.600 @ 613, Adele v. The State (1995) 2 NWLR (Pt. 377) p.269 @ 284.

The learned counsel maintains that the learned trial Judge erred in law by relying on the said Exhibit 1 upon which the Respondents were discharged and acquitted.

The learned Counsel for the Respondent Olusegun Oyewo Esq. submits that a court of law is a court of justice and must always strive to do substantial justice and not a technical justice. That section 199 does not prevent the admissibility of a written statement of a witness on the ground that proper procedure is not followed but that proper foundation must be laid before the statement could be used to contradict the witness. See Section 199 of the Evidence Act.

Counsel also submits that all the authorities cited by the learned Counsel for the Appellant are not relevant as Exhibit 1 was rightly admitted by the court. That the Exhibit needs not be tendered by the defence, as the court on its own could call for it for proper determination of the case. See Section 209 of Evidence Act.

Counsel further submits that Exhibit 1 is the detailed complaint made by the Appellants to the Police and the back bone of his case and wonders why the Appellant is withholding the said Exhibit 1? Urges this court to interprete the intention of a party withholding a piece of evidence in light of the provisions of Section 149 (d) of the Evidence Act and the cases of Akinyemi v. State (1999) 6 NWLR (Pt. 607) @ 449, Okunzua v. Amosu (1992) 7 SCNJ 243.

Issues two & three