3PLR – LATEEF SHOFOLAHAN V. THE STATE
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS 3PLR
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LATEEF SHOFOLAHAN
V.
THE STATE
IN THE COURT OF APPEAL
(LAGOS JUDICIAL DIVISION)
ON FRIDAY, THE 12TH DAY OF JULY, 2013
SUIT NO: CA/L/469B/2012
3PLR/2013/100
OTHER CITATIONS
(2013) LPELR-20998(CA)
BEFORE THEIR LORDSHIPS
AMINA ADAMU AUGIE, JCA
RITA NOSAKHARE PEMU, JCA
FATIMA OMORO AKINBAMI, JCA
BETWEEN
LATEEF SHOFOLAHAN – Appellants
AND
THE STATE – Respondents
REPRESENTATION
Olalekan Esq., Abdul-Fatai Alao-Thomas Esq., Abimbola Laoye Esq., J. A. Olofindana Esq., Abimbola Fakeye Esq., Olayinka O. O. (Mrs.) and K. Adudu Esq. – For the Appellants
Femi Adamson (ACSC), C.R. Odutola (ACSC), Mikhail Kadiri (S. C.) – For the Respondents
ORIGINATING STATE
Lagos State: High Court Hon. Justice (M. A. Dada J-Presiding)
MAIN ISSUES
CRIMINAL LAW AND PROCEDURE – CONSPIRACY TO COMMIT MURDER:- The offence of conspiracy as the meeting of minds of the – ways by which the offence may be established – whether necessary that the conspirators should know each other – whether conspiracy is complete upon an agreement by the conspirators – whether in most cases agreement is inferred or presumed – need for court to be satisfied with evidence of complicity of the accused person in the offence
CRIMINAL LAW AND PROCEDURE – WITNESSES: Duty of prosecution to only field witnesses relevant to the prosecution of his case – attitude of court to failure thereto
CRIMINAL LAW AND PROCEDURE – INCONSISTENT STATEMENT OF A WITNESS: Effect of prosecution’s failure to proffer a reasonable and satisfactory explanation for the inconsistency of a witness’ statement – previous statement made by a witness which is inconsistent with the testimony of the witness before the Court – bounden duty of the court to reject both the previous statement and the evidence given by the witness on oath as unreliable where the prosecution fails to proffer any reasonable and satisfactory explanation for the inconsistency – duty of the Court to refrain from proffering any explanation if the prosecution fails to do so
CRIMINAL LAW AND PROCEDURE – STANDARD OF PROOF: Duty of the prosecution to prove its case beyond reasonable doubt in order to secure a conviction – whether any piece or pieces of evidence which has or have been discredited or disparaged, cannot be relied upon by the trial Court in the consideration of the crucial question as to whether the guilt of the accused has been established beyond reasonable doubt, and the question of partial reliance on such evidence does not arise
CRIMINAL LAW AND PROCEDURE – EXTRA-JUDICIAL STATEMENTS:- incriminating extra-judicial statement or confession of the accused which is inconsistent with his testimony in Court – Six Tests courts must consider
CHILDREN AND WOMEN LAW: Women in Politics – Assassination of woman/spouse of a leading politician (MKO Abiola) – Failure of prosecution to provide credible witnesses – effect – Attitude of court thereof
PRACTICE AND PROCEDURE – EVIDENCE – CIRCUMSTANTIAL EVIDENCE:- Guilt of accused person – whether can be established beyond reasonable doubt by circumstantial evidence – need for such circumstantial evidence to link the accused person to the commission of the crime alleged – duty of the trial Court to set out the circumstances, established by cogent, evidence which makes the accused bound to be convicted
PRACTICE AND PROCEDURE – COURT – DUTY OF A JUDGE:- Need for a Judge in the due dispensation of Justice, to be above board and an impartial Judge – Need to restrict himself to the evidence before him – whether it is the function of a judge to proffer reasons for the recantation by witnesses, and acting on their recanted evidence
PRACTICE AND PROCEDURE – EVIDENCE – CORROBORATION:- Nature of corroboration – whether a witness cannot corroborate himself – whether evidence of a witness which requires corroboration cannot be used to corroborate the evidence of another witness – whether decidedly must be external and independent evidence
PRACTICE AND PROCEDURE – EVIDENCE – CROSS-EXAMINATION:- the evidence of a witness that cannot be reproduced for cross-examination after he had been examined-in-chief – whether a Court can act on same – need to expunge such evidence from the record of the Court or decline an invitation to attach any weight to it because the essence of cross-examination is to test the veracity and accuracy of the witness – aim of cross-examination – whether to deprive an accused person of the opportunity to cross-examine evidence given against him amounts to gross violation of his constitutional right to fair hearing
PRACTICE AND PROCEDURE – JUDGMENT AND ORDER – FINDING OR DECISION OF A TRIAL COURT:- Where the trial Court took into consideration extraneous matters or where it shut its eyes to cogent facts before it – whether such finding or decision is perverse – duty of the Judge to hold the balance between the contending parties, and to decide the case on the evidence brought by both sides, and in accordance with the rules of the particular court and the procedure and practice chosen by the parties in accordance with those rules – need for trial court not to base decision to convict on unreliable evidence – need to uphold the standard of proof in criminal matters as proof beyond reasonable doubt: not one on a balance of probabilities, or preponderance of evidence
PRACTICE AND PROCEDURE – EVIDENCE – WITNESS: Effect of a witness contradicting himself in evidence – whether any witness who reneges under cross-examination from evidence he has earlier given, or contradicts himself by falsifying his earlier evidence ought not to be regarded as a credible and reliable witness by the Court – ways by which the credit of a witness may be impeached – Section 230 and 231 of the Evidence Act – extent to which a party is allowed to discredit his own witness – proof of contradictory statement of hostile witness – need for an application to treat a witness as hostile to be made as soon as it is obvious that he is hostile or that his testimony will be adverse to the interest of the party
WORDS AND PHRASES:- “BEYOND REASONABLE DOUBT” – Meaning
MAIN JUDGMENT
RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment):
This appeal is against the Judgment of Hon. Justice M. A. Dada of the High Court of Justice, Lagos State on the 30th of January, 2012, wherein he convicted the Appellant on a two count charge of conspiracy to murder and murder of Alhaja Kudirat Abiola and was consequently sentenced to death.
FACTS
The Appellant had been charged with one Mohammed Rabo Lawal, Major Hamza Al-Mustapha on a two count charge of conspiracy to commit murder and murder of Late Alhaja Kudirat Abiola, wife of Late M.K.O. Abiola on the 4th of June, 1996.
Mohammed Rabo Lawal was discharged on a no case submission. The Appellant had worked as Protocol Officer under the Hope 93 Campaign Organization established by the Social Democratic Party for the actualization of the presidential ambition of Late M.K.O. Abiola.
When the presidential election of June 12th was annulled, Hope 93 Campaign Organisation was disbanded and the Appellant went back to his usual business.
At the trial three witnesses were called. They are PW1, PW2 and PW3.
At the close of the case for the Prosecution, the Appellant denied the charge. That he did not meet PW2 and PW3 at the National Theatre Iganmu, Lagos. He met PW2 for the 1st time at the Special Investigation Panel. The Appellant is dissatisfied with the decision of the lower Court.
The Appellant filed his brief of argument on the 28th of March, 2013 with four issues for determination predicated on a Notice of Appeal filed on the 27th of April, 2012, and containing eighteen Grounds of Appeal – pages 1924-1928 of the Record of Appeal Volume 4. The Brief of Argument is settled by Olalekan Ojo Esq. He proffered three issues for determination of this appeal.
The three issues for determination are:
(1) “Whether or not the learned trial Judge was right in law in treating the contents of the 2nd Appellant’s statement admitted as Exhibit A6 as true and relying on the said Exhibit A6 to convict the 2nd Appellant when the evidence of the 2nd Appellant is a retraction of the contents of Exhibit A4 without subjecting the said Exhibit A6 to the six tests laid down in the case of R V SKYES (1931) 8 C.A.R. Pg. 233 at 236.”
(Issue distilled from Grounds 7 and 8 of the Record of Appeal).
(2) “Whether or not the learned trial Judge was right in holding that the 2nd appellant was working in the house of Late Chief M.K.O. Abiola as Protocol Officer to Alhaja Kudirat Abiola between 1994 and 1996 and that it was one Sarkin Shasa that took the 2nd Appellant to the 1st Appellant in Abuja in 1995 when the 1st Appellant was the Chief Security Officer to the Late General Sanni Abacha.”
(This Issue is distilled from Ground 9 of the Notice of Appeal)
(3) “Whether or not the learned trial Judge acted in accordance with his duties to remain an impartial umpire and to act on credible evidence in the determination of the guilt of the 2nd Appellant by proffering reasons for the recantation by PW2 and PW3 and acting on the recanted evidence of PW2 and PW3 to convict the 2nd Appellant.”
(This issue is covered by Grounds 10, 12 and 13 of the Notice of Appeal).
(4) “Whether or not the learned trial Judge was right in coming to the decision that the guilt of the 2nd Appellant had been established beyond reasonable doubt by the Prosecution having regard to
(i) the quality, quantity and nature of the evidence adduced by the Prosecution in support of its case.
(ii) the totality of the evidence adduced by the Appellant in trial Court and the manner in which the learned trial Judge considered or dealt with the case of the Prosecution and the 2nd Appellant.
(This issue is covered by Grounds 2, 3, 4, 5, 6, 11, 13, 14, 15, 16, 17 and 18 of the Notice of Appeal).
Notably is that the Appellant in this appeal is regarded as 2nd Appellant because one Hamza Al-Mustapha and others were charged with him in the present charges but while the 3rd Appellant Rabo Lawal was discharged on a no case submission, the 1st and 2nd Appellant decided to file their respective appeals separately, and had filed separate Notices of Appeal in consequence.
I shall therefore refer to the 2nd Appellant in this appeal as simply “the Appellant”, with a separate Notice of Appeal before this Court. This Appeal shall be determined on that.
I shall also to a very large extent adopt my reasoning in Appeal No CA/L/469A/2012 Hamza Al-Mustapha v. State because the facts are the same and the circumstances. But I deem it pertinent to consider the Issues for determination in this present appeal as they express.
On the part of the Respondent, who filed his Amended Brief of Argument on the 16th of May, 2013 but same was deemed filed on the 30th of May, 2013, he proffers four issues for determination and they are:
(i) “Whether having regard to the evidence before the Court, the learned trial Judge was right to have found the Appellant guilty of the offence of conspiracy to commit a felony and to have sentenced him to 14 years imprisonment.” (Grounds 2-6 of the Notice of Appeal).
(ii) “Whether having regard to the available circumstantial evidence, the learned trial Judge was right to have found the Appellant guilty of the offence of murder of Alhaja Kudirat Abiola and to have sentenced him to death.” (Grounds 14-18 of the Notice of Appeal).
(iii) The Respondent adopts the Appellant’s Issue No. 1 as its Issue No. 3.(Grounds 7, 8 and 9 of the Notice of Appeal).
(iv) The Respondent adopts the Appellant’s Issue No. 3 as its Issue No 4 (Grounds 10, 12 and 13 of the Notice of Appeal)
The Brief of Argument is settled by Lawal Pedro (SAN) Solicitor-General of Lagos State.
On the 10th of June, 2013, learned counsel for the respective parties adopted their briefs of arguments.
Arguing Issues 1 and 2 together, the Appellant submits that Exhibit A4 was the Appellant’s extra-judicial statement which he admitted after a trial within trial. But in his defence he retracted same. Although the learned trial Judge did say that Exhibit A4 is not a confession, he however held that it contained some incriminating admission including
(i) That he was protocol officer to the Late Mrs. Abiola and by virtue of his being an insider, he sold out to the Abacha authorities.
(ii) That three men came to ask after Alhaja Kudirat Abiola from Aso Rock, one of which included Major Ado and
(iii) That the 2nd Appellant was introduced to the 1st Appellant by Sarkin Sha-Sha.
He submits that Exhibit A2 was tendered by PW4 who was not cross-examined, so learned counsel was not afforded the opportunity to ask the witness about how the investigating officers investigated the contents of Exhibit A2.
He submits that the Appellant disowned Exhibit A4 in the course of his defence.
That in R V SKYES (1913) C.A.R. 133 – it was held that where an incriminating extra-judicial statement or confession of the accused is inconsistent with his testimony in Court, the Court before acting on the contents of the extra-judicial statement, must subject the statement to the six tests laid down in the case of R V SKYES supra. That the principles were restated by Oguntade J.S.C (as he then was) in NSOFOR & ANOR v. THE STATE (2004) 18 NWLR Pt. 905 Pg. 292 at 320-327 as follows:-
“In DAWA v. STATE (1980) 8-11 S.C. 236 at 267-268, this Court per Obaseki J.S.C. discussed the test to be applied in determining the weight to be given to a retracted confessional statement thus:
“On the issue of weight to be attached to confessional statements retracted or not retracted, the tests to be applied and or followed were laid down in RV SKYES (1913) 8 C.A.R. Appeal Report 233 and approved by the West African Court of Appeal in KANU v. THE KING (1952/55) 14 WACA. 30 and I regard them as sound and golden. The questions a Judge must ask himself are:
(1) Is there anything outside the confession to show that it is true?
(2) Is it corroborated?
(3) Are the relevant statements made in it of facts, true as far as they can be tested?
(4) Was the prisoner one who had the opportunity of committing the murder?
(5) Is his confession possible?
(6) Is it consistent with other facts which have been ascertained and have been proved?”
If the confessional statement passes these tests satisfactorily, a conviction founded on it is invariably upheld unless other grounds of objection exist. If the confession fails to pass the tests, no conviction can properly be founded on it, and if any is founded on it, on appeals, it will be hard to sustain.
Here the learned trial Judge believed the contents of Exhibit A4 disbelieved the testimony of the Appellant. The contents of Exhibit A4 were relied upon by the learned trial Judge in coming to the conclusion that the Appellant and one Hamza Al-Mustapha were guilty as charged.
Submits that the learned trial Judge failed to take into consideration the absence of any independent evidence that
(i) The Appellant worked as Protocol Officer to the deceased at all times material.
(ii) The person called Sarkin Sha-Sha took the Appellant to the other accused person Al-Mustapha in 1995 when he was the Chief Security Officer to the former Head of State, General Sanni Abacha.
That such independent evidence would have been available, if and only if the investigating officers had obtained, and tendered statement from Sarkin Sha-sha, to the effect that he took the Appellant to Al-Mustapha in Abuja in 1995. Such independent evidence would have been available if any Member or associate of the Abiola’s family had made statement or given evidence to, show that the Appellant was indeed Protocol Officer to Late Chief Kudirat Abiola between 1994-1996.
On Issue No 3, the Appellant submits that the consideration of this issue brings into focus the essence of the adversary system of administration of Justice, particularly the role of a Judge.
He submits that the learned trial Judge in the present case descended into the arena of the conflict, when he raised the issue as to why PW2 and PW3, recanted their evidence they had earlier given, in their examination-in-chief, during cross-examination and concluded, based on nothing but sheer conjecture that PW2 and PW3 recanted, because the defence team had conversed with PW2 and PW3 and that PW2 and PW3 had been intimidated by the defence.
That the learned trial Judge was making a case for the Prosecution by raising the issue of recantation and proffering reasons for same, when the Prosecution had not made any suggestion that effect during the re-examination of PW2 and PW3.
He submits that the Courts have frowned on the acts of Judges concocting evidence in aid of the case of the defence citing THE STATE V. AIBANGBEE & ANOR (1988) 2 NSCC Vol. 19 Pg. 192 at 214.
He submits that in the present case, the Prosecution did not solicit any form of assistance from the learned trial Judge concerning the reasons for the recantation of PW2 and PW3, as the Prosecution had accepted the unfortunate and damaging recantation by PW2 and PW3.
Arguing that the word “RECANT” means
“To withdraw or renounce prior statements or testimony formally or publicly under grueling cross-examination”
he submits that recanted evidence had ceased to exist, as such has wiped out or cancelled the prior testimony. Therefore he argues, that the Court cannot rely on recanted evidence in coming to any decision, as to the guilt or otherwise of the accused person.
On Issue No. 4, he submits that the Prosecution has failed to prove its case beyond reasonable doubt as to the guilt of the accused person.
He submits that it is not enough for a trial Judge to state that he has no reasonable doubt as to the guilt of the accused, without stating how he came to the conclusion that he has no reasonable doubt. Cites EGBE v. THE KIND (1950) 13 WACA 5; DOGO & ORS v. THE STATE (2001) 2 SCM. P. 39 at 52.
He submits that the Respondent conceded in his written address that PW2 and PW3 repudiated and retracted their evidence in chief during cross-examination, and that robbed their evidence of any credibility or reliability – citing DENSA ENG. WORKS LTD v. UBN PLC (1999) 1 NWLR pt. 585 Page 162; EBANG v. STATE (2010) 1 NWLR Pt. 1176, Pg. 565 at 576.
Submits that any piece of evidence which has been discredited cannot be relied upon by the trial Court in the consideration of whether the guilt of the accused person has been established beyond reasonable doubt, and therefore the question of partial reliance does not arise. It cannot be partially credible and partially incredible when the evidence comes from the same source. Cites GEZOJI v. KULERE (2012) 4 NWLR Pt. 1291 at 497 at 495-496, citing EYO v. ONUOHA (2011) 11 NWLR Pt. 1257 of Pg. 1 at 21.
Submits that where a witness makes previous statement which is inconsistent with his testimony before the Court, the Court is mandated to reject both the previous statement, and the evidence given by the witness on oath, as unreliable, unless the Prosecution offers reasonable and satisfactory explanation for the inconsistency. It is not for the Court to explain the inconsistency – ONUBOGU & ANOR v. STATE (1974) 9. S.C. 1; EKPENYONG v. STATE (1991) 6 NWLR Pt. 200 683 at 696; OKONKWO v. STATE (1998) 4 NWLR Pt. 544 Pg. 148 at 160-161.
He argues that the grounds upon which the credibility of PW2 and PW3 were attached before the trial Court are that
(i) PW2 recanted his evidence in chief during cross-examination
(ii) PW2 admitted under cross-examination to have voluntarily made a previous statement Exhibit D1 in which he had said that he knew nothing about the murder of Alhaja Kudirat Abiola and that the 1st Appellant did not instruct him to kill anybody.
(iii) PW2 admitted under cross-examination that he is a loyalist to the State and he would say anything he is asked to say by the State (the authority) regardless of the truth.
PW2 admitted under cross-examination that;
(i) All that he had told the Court concerning the alleged involvement of the Appellant and Hamza Al-Mustapha in his evidence in Chief is what he had been told by the authority to say.
(ii) He was given promises including house and foreign posting by the authority for agreeing to give evidence against the Appellant.
(iii) The government authority bought a house for PW3 in Jos.
(iv) He had been induced by the authority to make his statement Exhibit A2 dated 29th September, 1999 while in the custody of the government.
(v) That he had denied knowing anything about the murder of Alhaja Kudirat Abiola in Exhibit D1 which was a voluntary statement.
Surprisingly, the learned trial Judge held that PW2 and PW3 are credible and reliable witnesses whose evidence can be safely relied upon by the trial Court to convict the Appellant as charged.
Urges Court to reverse the finding as being perverse.
He submits that there is absence of corroboration of the evidence of PW2 and PW3. That the said PW2 and PW3 were the principal witnesses of the prosecution.
That it is trite that corroboration is to lend support to sufficient, satisfactory and credible evidence and not meant to give credence to evidence which is deficient, suspect or incredible.
Settled that a witness cannot corroborate himself, and evidence of a witness which requires corroboration cannot be used to corroborate the evidence of another witness. Corroboration must be external and independent evidence outside what obtains from contested confessional statements – OBI v. STATE (1972) 1 S.C. 1 at 11; JAMES GWANGWAN v. STATE (2012) 1 W.R.N. 57 at 85; AKINLEMIBOLA v. C.O.P. (1976) NSLC 345 at 355.
Submits that the learned trial Judge failed to adhere to the requirements of Section 198 of the Evidence Act 2011 relating to the warning or direction that it is unsafe to convict the Appellant on the uncorroborated evidence of PW2 and PW3.
Submits that the learned trial Judge committed a grave misdirection in law in treating the evidence of PW2 and PW 3 as constituting corroboration of the evidence of PW1 which evidence does not require corroboration.
That in this case, the evidence of PW1 about the uncommon and spent nature of the bullet is inadmissible opinion evidence, on which the learned trial Judge ought not to have acted, PW1 having not been shown to be a ballistician by the Prosecution.
Submits that the mere extraction of the allegedly special and uncommon bullet from the head of the deceased, does not implicate the Appellant or show that he was a party to the commission of the offence with which he was charged.
Submits that PW1 spoke about the nature or type of the extracted bullet about eleven years after he had made his statement.
That the failure of PW1 to have said anything about the nature or type of the bullet in his statement made three or four days, after 4th June, 1996 renders his evidence on the issue suspect.
Submits that there is no circumstantial evidence before the trial Court on which it could convict the Appellant.
The prosecution had urged Court to take judicial notice of the spate of killings and clampdown on opposition under the regime of General Sanni Abacha when 1st Appellant was the Chief Security Officer.
That the learned trial Judge agreed but failed to get out the facts from which the Court made the inference.
He submits that circumstantial evidence upon which the conviction of an accused can be based must be cogent, compelling, positive and unequivocally referable to the accused as the perpetrator of the offence.
He submits that it not enough for the learned trial Judge to merely state in his Judgment that there is sufficient circumstantial evidence before the Court which has established the guilt of the accused beyond reasonable doubt. There must be reasons for his decision, that the guilt of the accused has been established beyond reasonable doubt by circumstantial evidence.
The Respondent’s argument in his brief accorded with that in Appeal No. CA/L/469A/2012 the case in respect of which Judgment I had just read. I do not see any reason to repeat same and I also adopt my views in respect of the said arguments.
I shall determine this appeal on the issues proffered by the Appellant, and the Respondent adopts the Appellant’s Issues No. 1 and 3.
ISSUE No. 1
Decidedly, where an incriminating extra-judicial statement or confession of the accused is inconsistent with his testimony in Court, the Court, before acting on the contents of the extra judicial statement must subject same to the SIX TESTS LAID DOWN in the case of R V SKYES (supra) – NSOFOR & ANOR v. THE STATE (2004) 18 NWLR Pt. 905 Pg. 292 at 320; EBHOMIEN & ORS v. THE QUEEN (1963) 1 ALL NLR 365.
The six tests are:
- Is there anything outside the confession to show that it is true?
- Is it corroborated?
- Are the relevant statements made in it of facts, true as far as they can be tested?
- Was the prisoner one who had the opportunity of committing the murder?
- Is his confession possible?
- Is it consistent with other facts which have been ascertained and have been proved?
Looking at the facts in Exhibit A4, there is no independent evidence adduced to make it probable if the content of the Exhibit are true.
There is no corroboration of the contents of Exhibit A2. There is nothing outside the confession to show that the contents of Exhibit A2 is true. It was never tested.
The contents of Exhibit A2 were never corroborated by any independent evidence.
There is nothing to show that the statement are of true facts, because whatever allegation that was made in that statement was never established by way of investigation by the Police for the benefit of the Prosecution.
There is nothing to show that the Appellant had the opportunity of committing the murder alleged against him, neither is it established with specificity, whether PW2 really pulled the trigger that killed Alhaja Kudirat Abiola on the 4th of June, 1996, as he claimed.
The Statement of PW2 is not consistent with the facts which have been ascertained, and have been proved.
The learned trial Judge, was wrong to have convicted the Appellant, when these six tests had not been established.
This issue is resolved in favour of the Appellant and against the Respondent.
ISSUE No. 2.
It is pertinent to note that at Page 5 of the Record of Appeal Vol. 1, are listed witnesses numbering twelve (12). Amazingly, only four of them were called. Indeed at page 6 of the Record of Appeal Vol. 1 witnesses 9, 10, 11 and 12 were to give evidence of their investigation and tender necessary exhibits, but they were not fielded. They are Police Officers. Only PW4 was called, but he resiled from cross-examination. No reason was proffered.
Yes the prosecution is not mandated to call a lot of witnesses, but it must field witnesses relevant to the Prosecution of the case.
His failure to bring before Court relevant witnesses, smacks of lack of diligence. It is the duty of the prosecution to prosecute his case and that prudently.
At Page 6 of the Record of Appeal Vol. 1 is listed list of Exhibits. None of the Exhibits listed therein were tendered in the prosecution of this gruesome crime except the statements of PW2 and that of the Appellant and indeed that of Al-Mustaphar.
Sarkin Sha-sha who allegedly took the Appellant to Al-Mustapha in Abuja in 1995 when he was the Chief Security Officer to the late General Sanni Abacha was not called. His name was not even listed as a potential witness on the proof of evidence.
Nobody came forward to testify that the Appellant worked as Protocol officer to Alhaja Kudirat Abiola between 1994 and 1996.
One wonders how and why the learned trial Judge could come to the conclusion which he did, that the Appellant worked in the house of Late Chief M.K.O. Abiola as Protocol Officer to Alhaja Kudirat Abiola between 1994 and 1996. Where is the evidence to buttress that fact?
Interestingly, one Dr. Mark Adesina whose name is listed on the back of the information at Page 5 of the Record of Appeal Vol. 1 and who made statement as A4, was an eyewitness to the shooting incident. He was never called as a witness, but he was more or less a member of the Abiola household as reflected in his statement to the Police. Now in his statement, he had this to say viz, that the vehicle driven by the culprit on that day was a Blue 504 Peugeot Saloon car with heavy duty bumper. That he was sitting in the front seat of the white Mercedes Benz in which the deceased was driven. In that statement, he did say, that before the deceased’s death, no cordial relationship existed between the deceased and the extended family of Chief M.K.O. Abiola because of who and who to represent Chief M.K.O. Abiola in Court, for instance, people like Mudashiru Abiola, Musa Abiola, Baba Agba and Kola Abiola the eldest son of Chief M.K.O. Abiola. That one day he overheard Baba Agba complaining about the deceased when he was in the telephone room making calls.
With this statement, it was incumbent on the Police to investigate these members of the Abiola family whose names were mentioned, just by way of eliciting information, that may lead to the apprehension of the culprit who carried out this dastardly act. But the Police just did not.
Indeed, the investigation of this case leaves much to be desired, as it is fraught with the lack luster attitude of the Police.
For good measure, PW1 in his statement to the Police did say that he identified the corpse of the deceased before post mortem examination was carried out. That one Dr. Gbolahan Adebule come to him with blood soaked hands – the blood of the deceased and told him what he saw.
However, testifying in Court, PW1 did not allude to any of these facts. The prosecution saw nothing wrong in that!
If indeed Lateef i.e. the Appellant was taken to the Appellant by one Sarken Sha-sha in 1995, the crime was committed in June 1996. (4th of June, 1996 to be precise). What is the connection of the Appellant with this crime? We are left to speculate.
I am of the view that the learned trial Judge erred in law when he relied on allegation which lacked foundation, and no evidence in arriving at conclusion which he did, in order to convict the Appellant.
This issue is resolved in favour of the Appellant and against the Respondent.
ISSUE No. 3.
The law is trite, and indeed it is an elementary principle of law, that a Judge in the due dispensation of Justice, must be above board and an impartial Judge. He cannot afford to be otherwise. His tool is the evidence before him. The facts of the evidence is his guiding light. His eyes must be single. The facts before him is what determines which way the ship sails. It is not his function to proffer reasons for the recantation by witnesses, and acting on their recanted evidence.
In this case the recanted evidence of PW2 and PW3
The Prosecution has a duty to prove its case beyond reasonable doubt in order to secure a conviction. Therefore as rightly contended by the Appellant, any piece or pieces of evidence which has or have been discredited or disparaged, cannot be relied upon by the trial Court in the consideration of the crucial question as to whether the guilt of the accused has been established beyond reasonable doubt, and the question of partial reliance on such evidence does not arise – page 15 paragraph 6.06 of the Appellant’s Brief of Argument.
Where a witness makes a previous statement which is inconsistent with the testimony of the witness before the Court, the court is mandated (not a matter of discretion) to reject both the previous statement and the evidence given by the witness on oath as unreliable. Where the prosecution fails to proffer any reasonable and satisfactory explanation for the inconsistency, it is fatal to the prosecution’s case. The Court cannot proffer or offer this explanation. It has no business to so do, because it is not his business – ONUBOGU & ANOR v. THE STATE (1974) 9 S.C. 1 at Pg. 19; STATE v. AKPABIO (1993) 4 NWLR 286; IBE v. STATE (1993) 7 NWLR (pt. 304) 185 at 146.
Let me see the attitude of the learned trial Judge regarding the recanted, evidence of PW2. Indeed PW2 recanted his evidence in Chief during cross-examination.
First and foremost, PW2 admitted under-cross-examination that he made a voluntary statement previously as reflected in Exhibit D1. In that statement, he said he knew nothing about the murder of Alhaja Kudirat Abiola and that Alhaji Al-Mustapha did not instruct him to kill anybody. That was the crux of his statement.
Second of all, PW2 admitted under cross-examination that he is a loyalist to the State and he would say anything he is asked to say by the State (the authority) regardless of the truth.
He admitted under cross-examination the following –
(a) He had been induced by the authority to make his statement Exhibit A2 dated 29th September, 1999 while in the custody of the Government.
(b) Alhaji Al-Mustapha never gave him any instruction to kill or assassinate anybody.
(c) All that he did told the Court concerning the alleged involvement of the Alhaji Al-Mustapha and the present Appellant in his evidence in chief is what he had been told by the authority to say.
(d) He was offered promises, including the gift of a house, foreign posting by the authority for agreeing to give evidence against the Appellant.
(e) The Government authority bought a house for PW3 at Jos.
(f) He had denied knowing anything about the murder of the deceased in Exhibit D1 which was a voluntary statement.
Now these are pieces of evidence of PW2 and indeed under cross-examination. This pieces of evidence is what the learned trial Judge based on, to convict the Appellant by terming PW2 and PW3 credible and reliable witnesses. Even in view of the facts that the Prosecution conceded that these two witnesses evidence were far from being reliable and credible, for the court to base the conviction of the Appellant on such evidence is alarming, and this Court is entitled to reverse same without much ado.
This is because where the trial Court took into consideration extraneous matters or where it shut its eyes to cogent facts before it, such finding or decision is PERVERSE – SAPO v. SUNMONU (2010) 5 SCNJ 1 @ 25 and same must be reversed on appeal.
In our adversary system of administration of Justice, and in the CASE of AKINFE v. STATE (1988) 7 S.C. 11 @ 131 @ 136. Nnaemeka Agu, J.S.C. warned that parties, with their counsel and the Judge have their respective roles to play. And it is the role of the Judge to hold the balance between the contending parties, and to decide the case on the evidence brought by both sides, and in accordance with the rules of the particular court and the procedure and practice chosen by the parties in accordance with those rules.
In the present case, the learned trial Judge descended into the arena of the conflict and got his vision beclouded by the dust of the conflict. He it was who raised the issue as to why PW2 and PW3 recanted their evidence which they had earlier given in their examination-in-chief, during cross-examination, and concluded based on nothing but sheer conjecture, that PW2 and PW3 recanted, because the defence team had conversed with PW2 and PW3 and that PW2 and PW3 had been intimated by the defence. He explained it away. The Court is not the prosecution.
I agree with the submission of the Appellant that the act of raising the issue of recantation by the learned trial Judge, and going further to proffer reasons for the recantation, when the Respondent had not made such suggestion to that effect during the re-examination of Pw2 and PW3, amounted to the learned trial Judge making a case for the prosecution, an act which the law frowns at.
It was Eso, J.S.C. that had this to in THE STATE v. AIBANGBE & ANOR (1988) 2 NSCC Vol. 19 Page 192 at page 214
“A Judge of first instance decides on evidence led by the parties to a case before him. He does not, with respect, concoct evidence. He does not imagine evidence. He interprets a situation per the cold facts before him, not as per what he would have preferred the facts to be. It is unfortunate that the trial Judge in this case went on trial voyage, even unsolicited by the defence. It is more unfortunate that a court of Appeal should permit such fancy to thrive”
It is apparent that the prosecution did not solicit any assistance from the learned trial Judge, and I wonder why reasons were given by him for the recantation by PW2 and PW3. Moreso, he used the recanted evidence of PW2 and PW3 to convict the Appellant. It is a decision that is worthy of reversal by this Court, as it cannot stand by any standard of the law and equity.
The learned trial Judge, in my view did not act in accordance with his duties to remain an impartial umpire, neither did he act on credible evidence in the determination of the guilt of the Appellant. The retraction of their respective statements by PW2 and PW3, made their evidence incredible and unreliable, and one that should not have been convicted upon. The entire evidence should have been rejected by the learned trial Judge. The standard of proof in criminal matters is one that cannot be compromised. It is proof beyond reasonable doubt. It is not one a balance of probabilities, or preponderance of evidence.
This issue is resolved in favour of the Appellant and against the Respondent.
ISSUE No. 4
A painstaking look at the quality, quantity and nature of the evidence adduced by the Prosecution in support of this case, leaves much to be desired. I had dealt with this exhaustively in my earlier Judgment in CA-L-469A-2012, just delivered this morning. This is because the evidence adduced in respect of the two is the same. The witnesses are the same and the exhibits rendered are the same. I adopt my reasoning with regard to the failure of the prosecution, in a woeful manner to prove the guilt of the Appellant beyond reasonable doubt.
I may add here, that the Appellant was never said to have ordered that the deceased be murdered. There is no nexus between him and the commission of the offence of conspiring to murder the deceased, and the murder and I so hold.
There is no credible, cogent and reliable evidence linking the Appellant with the murder of the deceased. Indeed, at the expense of repetition, the Respondent conceded that PW2 and PW3 repudiated and retracted their evidence-in-chief during cross-examination and that robbed their evidence of any credibility or reliability – DENSA ENG. WORKS LTD. v. UBN PLC (1999) 1 NWLR. PT. 585 162; EBANG v. STATE (2010) 1 NWLR PT. 1176 Pg. 565 at 576.
I adopt the authority cited by the Appellant in the Supreme Court case of EYO v. ONUOHA (2011) 11 NWLR Pt. 1257. 1 at 27, where it was held, that any witness who reneges under cross-examination from evidence he has earlier given, or contradicts himself by falsifying his earlier evidence ought not to be regarded as a credible and reliable witness by the Court.
A witness cannot corroborate himself and evidence of a witness which requires corroboration cannot be used to corroborate the evidence of another witness. Corroboration, decidedly must be external and independent, evidence, outside what obtains from contested, confessional statements – OBI v. STATE (1972) 1. S.C. 1 at 11; JAMES GWANGWAN v. STATE (2012) Vol. 1 WRN 57 at 85.
At Pages 1839 and 1843 of the Record of Appeal, it is apparent that the learned trial Judge convicted the Appellant on the uncorroborated evidence of PW2 and PW3, indeed, he indicated that the PW2 and PW3 are accomplices and that their evidence corroborate to a large extent the evidence of PW1 (Dr. Ore Falomo) and that the evidence of PW1 that the bullet that was extracted from the head of the deceased was a special one, that was not commonly seen, corroborates the evidence of PW2, and it was the Appellant that gave PW2 the gun that was used.
This was a gross error in law and evaluation of the evidence before the learned trial Judge. PW1’s evidence in the first place require no corroboration as he has not been treated as an accomplice, by the lower Court.
The evidence of PW1 (who is not a ballistician but, a gynecologist) – (words from his own lips) under cross-examination is of no moment. Neither is his evidence that the bullet was a special bullet. PW1 even under cross-examination said he did not say anything about the type of the bullet that was extracted from the head of the deceased in his statement to the Police.
It is my view, in the circumstances of this Appeal that the learned trial Judge failed to properly direct himself to the unsafety of convicting on the un-corroborated evidence of an accomplice. PW2 and PW3’s evidence remain uncorroborated as required by law and therefore lack probative value. And such a conviction based on such uncorroborated evidence must be quashed without much ado.
Even on the issue of circumstantial evidence, which must be compelling and unequivocal, the Respondent cannot boast of establishing same. When the prosecution had conceded that PW2 and PW3’s evidence are unreliable, I wonder how he is able to allude to the issue of circumstantial evidence.
The prompting by the Prosecution that the trial Court takes judicial notice of the spate of killings and clampdown on opposition under the regime of General Sanni Abacha when the 1st Appellant was the Chief Security officer, amounts to extraneous issues that find no place in the prosecution of criminal matters, as all that the prosecution is required to do is to prove its case beyond reasonable doubt. Yes, the guilt of the accused can be established beyond reasonable doubt by circumstantial evidence. But where such circumstantial evidence (if any) does not link the accused person to the commission of the crime alleged, then it is of no moment, and the accused person is entitled to be discharged and acquitted – SHEHU v. STATE (2010) 22 WRN 1; MUSTAPHA MOHAMMED & ORS v. THE STATE 2007, 37 WRN 1.
It is the duty of the trial Court to set out the circumstances, established by cogent, evidence which makes the accused bound to be convicted. For it is not enough for the learned trial Judge to merely say that there is sufficient circumstantial evidence. Those circumstances must be clearly elucidated. Because it is not all those that are guilty that are committed to the gallows. Some innocent ones go.
In an appellate court such as this, the Court would as a matter of review, look to see the circumstances laid before the lower Court and decide how credible it is. In this present case, there is no circumstantial evidence proved.
This issue is resolved in favour of the Appellant and against the Respondent.
In all, there was no basis for the conviction of the Appellant for the offence of conspiring to murder, and murder the deceased. The charges have not been proved against the Appellant beyond reasonable doubt, as there is nothing connecting him with the commission of the offences.
The totality is that the Appeal, succeeds and same is allowed. The Judgment of the lower Court Coram M. A. Dada of the High Court of Lagos State, delivered on the 30th day of January, 2012 is hereby set aside. The conviction and sentence of the Appellant Lateef Shofofahan is hereby quashed.
He is hereby discharged and acquitted.
AMINA ADAMU AUGIE, J.C.A.:
I have read in draft the lead Judgment just delivered by my learned brother, Pemu, JCA, and I agree with him that the appeal must be allowed because the Prosecution clearly failed to prove its case beyond reasonable doubt. He dealt extensively with all the issues raised, and I have nothing useful to add but will simply adopt my reasoning and conclusion in the Judgment I delivered earlier in Appeal No. CA/469A/2012 – Major Hamza Al-Mustapha v. The State, thus –
“It is an elementary principle of criminal law that the Prosecution has a duty to prove its case “beyond reasonable doubt, and reasonable doubt is the “doubt that prevents one from being firmly convinced of a Defendant’s guilt or the belief that there is a real possibility that the Defendant is not guilty” – see Black’s Law Dictionary 9th Ed., where it was further explained that –
“Reasonable doubt is a term often used, probably pretty well understood, but not easily defined. It is not a mere possible doubt; because everything relating to human affairs, and depending on moral evidence, is open to some possible or imaginary doubt. It is that state of the case, which after the entire comparison and consideration of all the evidence, leaves the minds of jurors in that condition that they cannot say they feel an abiding conviction, to a moral certainty, of the truth of the charge” –
Beyond reasonable doubt is the standard used to determine whether an accused person is guilty; it stems out of the compelling presumption of innocence inherent in our adversary system of criminal justice – see Bakare v. The State (1987) 3 SC 1… It is settled that a trial Court interprets a situation as per the cold facts before it – see The State v. Aibangbee (1988) 3 NWLR (pt.84) 548, wherein Eso, JSC, held –
“- – A Judge of first instance decides on evidence led by the parties to a case before him. He does not, with respect, concoct evidence. He does not imagine evidence. He interprets a situation as per the cold facts before him not as per what he would have preferred the facts to be”.
The learned trial Judge fell far short of this standard because he closed his eyes to the cold facts – – and allowed himself to be swayed by sentiments and political insinuations in his own interpretation of the evidence before him. My learned brother has eloquently addressed this point in the lead Judgment, and I share his view that the learned trial Judge should not have relied on the evidence of the Prosecution witnesses – – -. The gist of the offence of conspiracy is the meeting of minds of the conspirators – see Patrick Njovens v. The State (1973) NWLR 76 and Osuagwu v. State (2013) 5 NWLR (pt.1347) 360, where the Supreme Court per Rhodes-Vivour, JSC, elaborated as follows –
“In Oyediran v. Republic (1967) NMLR 122, (1966) 2 SCNLR 173, Coker, J.S.C. explained conspiracy as follows
- Conspiracy may be formed in one of the following ways –
(a) The conspirators may all directly communicate with each other at a particular place and time and enter into an agreement with a common design.
(b) There may be one person who is the hub around whom the others resolve, like the centre of a circle and the circumference.
(c) A person may communicate with A and A with B, who in turn communicates with another and so on. This is what is called the chain conspiracy.
- In order to establish conspiracy therefore, it is not necessary that the conspirators should know each other. They do not have to know each other so long as they know of the existence and the intention or purpose of the conspiracy. See State v. Salawu vol. 408 NSCQLR p.290, (2011) 8 NWLR (pt.1279) 580, Erim v. State (1994) 5 NWLR (pt.346) p.522, Oladejo v. State (1994) 6 NWLR (pt.348) p.101.
Conspiracy is complete upon an agreement by the conspirators and in most cases agreement is inferred or presumed. In all cases – – the court must be satisfied with evidence of complicity of the accused person in the offence”.
In other words, there must be some link between each and every one of the conspirators in this case with the evil plan or plot to assassinate Kudirat Abiola. PW1, Dr. Oluwatamilore Faloma, is out of it because his evidence added nothing to the case. His testimony about a special bullet that is not commonly seen goes to nothing because the bullet was not even produced in evidence. PW2, Sgt. Rogers, who confessed to shooting Kudirat Abiola, testified under cross-examination that all that he had said in his examination in chief was what he had been told to say by the authorities. …. When he was re-examined, Sgt. Rogers re-affirmed what he said under cross-examination that what he had said was what he was told by the authorities. PW3, Mohammed Abdul (alias Katako), who confessed that he drove PW2 on the day of the shooting, also rejected his testimony under cross-examination, and divulged that he was given a house in Jos. His replies read…
“… I said I was offered promises including the gift of a house by the authorities. – – The promises were offered to me in 1999. – – – The authorities that I was with made the promises to me. The officials of the Lagos State Ministry of Justice also visited me in detention. – – The former Attorney-General Lagos State and Solicitor General visited me. – – The Federal Attorney-General too visited me. He is late, Chief Bola Ige – – This promise that was made, I was given a house in Jos. The authority I was staying with gave me the house. — It was during the visits of the officials that the promise of the house gift was fulfilled. I was told at the time of my arrest that they were looking for money from Alhaji Mohammed. – – I was told that I would get a percentage of whatever could be recovered from Mohammed Abacha. – – They said 10%. The promises were made before I made my statement”.
Obviously, the testimony of PW2 and PW3 left room for more questions than answers, and yet, the Prosecution did not think to solicit that they be declared hostile witnesses. In addition to Section 230 and 231 of the Evidence Act, which deal with how far a party may discredit his own witness, and proof of contradictory statement of hostile witness, Section 210 of the same Act says –
“The credit of a witness may be impeached in the following ways by any party other than the party calling him or with the consent of the Court by the party who calls him –
(a) By the evidence of persons who testify that they, from their knowledge of the witness, believe him to be unworthy of credit;
(b) By proof that the witness has been bribed, or has accepted the offer of a bribe, or has received any other corrupt inducement to give his evidence;
(c) By proof of former statements inconsistent with any part of his evidence which is liable to be contradicted.
It is settled that an application to treat a witness as hostile should be made as soon as it is obvious that he is hostile or that his testimony will be adverse to the interest of the party. In this case, PW2 and PW3 made serious allegations against the “authorities”, which suggests that they were induced to tell lies against the Appellant but they later repented. PW3 further stated as follows –
“The people who made these promises to me before I made my statement were the Federal Government officials and the SSS authorities. The officials of the Federal Government who told me 10%, he is dead, the former Attorney-General and the former D.G. SSS. Yes former attorney General was the late Bola Ige, the former DG, SSS was Col. Kayode Are. There were others there. Sometimes they will be three. After the promises, yes, I was happy. The promises were made on the 18th of September. (At this stage, the witness broke down weeping profusely). Yes, my statement of 19th September was as a result of the promises of 18th September”.
Under re-examination, PW3 stood by all that he said during cross-examination, which is totally at variance with what he had said in his examination in chief, but the learned trial Judge did not see or refused to see anything wrong with the testimony of PW2 and PW3 and declared them to be reliable witnesses. Then there is PW4, Ahmed Fari Yusuf, the Police officer, who tendered statements of the accused person, and took part in the trial-within-a-trial that lasted for over a year, but disappeared before he could be cross-examined. – – [His] evidence also amounts to nothing because it is settled law that a Court cannot act on the evidence of a witness that cannot be reproduced – – for cross-examination after he had been examined-in-chief – see Isiaka v. The State (2011) All FWLR (pt. 583) 1966, wherein it was held –
“- – The platform on which the lower70741 Court placed his reasoning for the conviction is weak and unjustifiable. A Court or Tribunal should never act on the evidence of a witness whom the other party wants to cross-examine, but cannot be reproduced or located for cross-examination after he must have been examined-in-chief. The most honourable thing for the lower Court would have been that the evidence of PW3, who tendered Exhibit 5 should have been expunged from the record of the Court or the lower court should not have attached any weight to it because the essence of cross-examination is to test the veracity and accuracy of the witness and not just a jamboree or merry making. A witness who fails to make himself available for cross-examination should know that all his evidence goes to naught.”
See also the unreported Judgment of this Court delivered on 10/12/12 in Appeal No. CA/J/71C/2009 – Shehu Shegun v. The State, wherein it was held –
“The aim of cross-examination is to enable the cross-examining party to demolish or weaken the case of the party being cross-examined to also allow the cross-examining party the opportunity of stating or representing its case through the witness of its opponents. In ensuring that an accused person’s right to fair hearing is manifestly protected, such accused person must be given the opportunity to examine either in person or by his legal practitioner the witnesses called by the Prosecution. The entire trial process revolves around this art of cross-examination. The Evidence Act actually underscores the purposes of cross-examination in Section 200, which provides inter alia
“When a witness is cross-examined, he may in addition to the questions referred to be asked any questions which tend –
(a) To test his accuracy, veracity or credibility, or
(b) To discover who he is and what is his position in life, or
(c) To shake his credit by injuring his character.
To deprive an accused person of this opportunity amounts to gross violation of his constitutional right to fair hearing”. (Per Mshelia, JCA)
It is clear that none of the witnesses added anything to the Prosecution’s case, and a 326-paged Judgment cannot provide any evidence where there is none. Therefore, I also allow the appeal and set aside the decision of the lower Court”.
I adopt the above reasoning and conclusion and do hereby allow this appeal. The decision of the lower Court, including the conviction and sentence passed on the Appellant by the lower Court, is set aside. The Appellant is, therefore, discharged and acquitted. I abide by the orders in the lead Judgment.
FATIMA OMORO AKINBAMI, J.C.A.:
My learned brother, Pemu, JCA., afforded me the opportunity of reading in draft the judgment just delivered with which I agree and adopt as my judgment in the case with nothing useful to add.
