The State V. Femi Oladotun (2011)

LAWGLOBAL HUB Lead Judgment Report

M. MUKHTAR, JSC

This is an appeal against the decision of the Ilorin Division of the Court of Appeal allowing the appeal of the accused/respondent and quashing his conviction by the High Court of Justice of Kwara State. On 3/11/2008, an amended charge was read to the accused/respondent. The amended charge reads as follows:-

“That you, Femi Oladotun, and others now at large on or about the 2nd day of May, 2006 at about 1210 hours at Baboko area, Ilorin within the jurisdiction of this court was found to be in illegal possession of a foreign made double barrel cut to size gun and nine live cartridges and you thereby committed an offence contrary to Section 3(1) of the Robbery and Firearms (Special Provisions) Act Cap R 11, 2004.”

The accused said he understood same and pleaded not guilty to the charge. There was originally a charge that was read to the accused on 24/7/2008, but it was later amended to the above charge, with the leave of the court. Witnesses gave evidence for the prosecution and there was even a trial within a trial to determine the voluntariliness of the accused’s caution statement to the police. Briefly put, the case for the prosecution is that the accused was arrested at Eruda whilst he was driving a Toyota Corolla car at about 0145 a.m. by the Police night patrol team. As the team sighted the car with registration No. Kwara AE708FUF, they pursued it, and on seeing them, the accused drove faster until it ran into a gutter and stopped. Three other occupants in the car ran away. The team searched the vehicle and found foreign made double barrel gun cut to size with seven cartridges. The caution statements of the accused were recorded by him after being cautioned.

The accused gave evidence in his defence and denied that he was in possession of a gun in his car. He said he and his three friends were going to a party when they were stopped by the policemen about 8p.m. He denied most of the contents of his caution statements, alleging that he was tortured when he wrote the statements.

The learned trial Judge after evaluating the evidence before him, and consideration of the submissions of learned counsel found the prosecution’s case proved and convicted the accused thus:-

“On the whole, I am satisfied from the overwhelming and believable evidence adduced against the accused that the prosecution has proved the charge of illegal possession of firearms against him to the standard required in criminal cases, that is, beyond reasonable doubt and I find him guilty of the offence as charged. The accused is accordingly convicted.”

The accused was not happy with the above decision, so he appealed to the Court of Appeal, which set aside the decision and held thus:-

“In conclusion, I hold that the prosecution did not discharge the burden which the law placed on it. The lower court should have made this finding. It failed to do so. It erred. That is why its judgment cannot be allowed to stand” I therefore enter an order quashing the conviction and sentence passed on the appellant.”

Aggrieved, the prosecution has appealed to this court on three grounds of appeal. Learned counsel exchanged briefs of argument, which were adopted at the hearing of this appeal. The appellant in its brief of argument formulated the following issues for determination:-

1. Whether the Court of Appeal was right to have held that the trial court placed reliance on the Saka Oladejo v. The State (1987) 3 NWLR part 61 as basis for convicting the respondent.
2. Whether the Court of Appeal was right to have held that the prosecution failed to establish the guilty knowledge of the respondent before the trial court.
3. Whether the Court of Appeal was right to have held that the trial court failed to consider the defence of the respondent before convicting him as charged.

The above issues were adopted by the respondent in his brief of argument. In arguing issue (1) above, the learned Director of Public Prosecution of Kwara State for the appellant, referred to the following excerpt of the judgment of the lower court:-

“In effect, by invoking Saka Oladejo (supra) the lower court was nibbling at the impregnable authority of the Supreme Court in the said Egbohonome v. State (supra) and even the latter authority of Aiguoreghian v. State (supra). Even on the ground alone, I am bound to vacate its findings with regard to the so called inconsistency between exhibit C and the oral testimony of the accused person/appellant in his oral evidence during his defence.”

The learned Director of Public Prosecution conceded that Saka Oladejo’s decision on the inconsistency rule has been overruled by this court in Egboehonome v. The State 1993 9 SCNJ 1, but his submission is that the learned justice carried the decision in Egboghonome’s case too far to have occasioned miscarriage of justice in this case. He submitted that the impression given by the lower court on this rule was that the trial court, acting on the decision in Saka Oladejo case refused and/or neglected to consider the defence raised by the respondent in his confessional statement as it was inconsistent with his oral testimony in court. The learned Director of Public Prosecution argued that though the learned trial Judge restated the inconsistency rule as applied in Saka Oladejo’s case, he did not make the decision the basis for resolving that issue against the respondent. What the learned trial Judge did was to evaluate the confession and the testimony of the respondent with the totality of the evidence in order to reach a decision as expounded by this court in the Eghoghonome case supra. The learned Director Public Prosecution further argued that exhibit C is for all intent and purpose a confessional statement of the respondent, and notwithstanding its retraction, the law allows the trial judge to make use of same. He placed reliance on the cases of Ikemson v. State 1989 3 NWLR part 110 page 455, and Edoho v. State 2010 All FWLR part 530 page 1262 at page 1297 .

In reply to the above submissions, the learned counsel for the respondent has contended that the correct position of the law as regards the inconsistency rule has been stated in Egboghonome’s case supra to the effect that the rule is to be applied to extra judicial statements which are not confessional. It does not apply to retracted extra-judicial confession of an accused. He referred to Akpan v. State 2001 15 NWLR part 737 page 745, which according to him binds every lower court by the doctrine of stare decisis. According to the learned counsel, the lower court merely re-stated the correct position of the law as it relates to the inconsistency rule formulated in Eghoghonome’s case to rebut the wrong notion of the state of the law held by the learned trial judge, as a dispassionate look at the judgment would only reveal that the lower court did not hold the reliance (or lack of it) by the learned trial Judge as the basis for reversing the judgment of the trial court. The learned counsel, on the heavy weather made of the inconsistency in the two extra judicial statements and the testimony of the accused in court has argued that the mere fact that an accused person told lies is not by itself sufficient to ground his conviction for an offence. It does not relieve the prosecution of its duty of proving the guilt of the offence with which he is charged beyond reasonable doubt. He placed reliance on the cases of Agbo v. State 2006 6 NWLR part 977 page 545, and Okpere v. State 1971 1 ANLR 1.