The State V. Olashehu Salawu (2011)

LAWGLOBAL HUB Lead Judgment Report

NWALI SYLVESTER NGWUTA, J.S.C.

The Respondent was arraigned before the Kwara State High Court of Justice, Ilorin Judicial Division on a two count amended charge, hereunder reproduced:

“COUNT ONE: That you Ola Shehu Salawu and five others at large on or about 8/5/2007 at Adeta round about in Ilorin, Kwara State, within the jurisdiction of this Honourable Court conspired to commit a criminal offence, to with (sic) rob one Mr. Soleman Alafara while armed with dangerous weapon at Adeta round about Ilorin and you thereby committed an offence contrary to Section 97 of the Penal Code.

COUNT TWO: That you Ola Shehu Salawu and five others at large on or about 8/5/2007 at Adeta round about in Ilorin Kwara State within the jurisdiction of this Honourable Court while armed with dangerous weapon did rob one Mr. Suleman Alafara of his car Honda bullet with dealer number KWD 142 AL Nurus Motors and you thereby committed an offence contrary to Section 1 (2)(a) of Robbery and Fire Arms (Special Provision) Act Cap R11 Law (sic) of the Federation of Nigeria 2004.”

The Respondent pleaded not guilty to the amended charge on 11/04/08 and the appellant opened its case, calling a total of four witnesses. The Appellant sought to tender the Statement allegedly made by the Respondent through PW4 but learned Counsel for the Respondent objected to the admissibility of the Statement on the following two grounds:

“(1) This is not the primary evidence of the accused person because the accused speaks and understands Yoruba alone and its only the Yoruba version coupled with the English version that can be admitted in this Honourable Court.

(2) Secondly, on the voluntariness of the Statement, the accused in conjunction with his counsel will be raising an objection to the admissibility of the Statement on ground that it was not voluntarily made. Finally, the Statement of the accused being a public document but coming from proper custody should have been certified in line with the Evidence Act.”

In reaction to the objection to the admissibility of the Statement credited to the Respondent, the learned trial Judge Garba, J ruled as follows:

“Court: In view of the objection to the Statement of the accused on ground of not being voluntary, the best thing to do is to conduct trial within trial to determine its voluntariness or otherwise.” (See pages 41-42 of the record of the trial Court).

In the ensuing trial within trial the Appellant called two witnesses while the Respondent testified as the only witness for the defence.

Learned counsel for the parties addressed the trial Court. In its ruling of 22/05/08, the learned trial Judge held:

“… that I find the confessional statement of the accused voluntary and it is accordingly admitted in evidence and marked Exhibit 4.”

At the conclusion of the evidence of the PW4, the Appellant rested its case the only witness for the defence was the Respondent who testified as PW1. The defence closed its case on 23/06/08 and the trial Court adjourned to 14/07/08 for Counsel’s addresses.

On 14/07/08, learned counsel for the parties adopted their written addresses and the case was adjourned to 23/9/08. However, the case did not come up again until 10/10/08 from which date it was adjourned to 14/10/08 for judgment after learned Counsel at the instance of the trial Court, had resolved some issues relating to the number of those at large referred to in the Charge and the numbering of the Exhibit 4, i.e. the alleged Statement of the Respondent.