SC Cases: Wrongful Admission Of Evidence

By Legalpedia

IDOWU MAKANJUOLA VS. THE STATE

 suit no: SC.119C/2019

Areas Of Law:  

Appeal, Evidence, Criminal Law, Constitutional Law, Practice And Procedure, Words And Phrases

Summary Of Facts:

The Appellant was found guilty for illegal possession of firearm, and for the offence of Armed Robbery. He was convicted accordingly and sentenced (to death) by the trial High Court of Kwara State.

Dissatisfied with the said conviction and sentence passed thereupon, the Appellant appealed to the Court of Appeal, Ilorin Judicial Division.

The court of appeal found that the prosecution was able to establish all three ingredients for the offence of illegal possession of firearm and all three ingredients of the offence of Armed Robbery, affirmed the decision of the trial High Court and dismissed the Appeal.

Dissatisfied, The Appellant proceeded further to file the instant appeal, predicated on 8 (eight) grounds, thereby urging this Court to allow the appeal and set aside the conviction and sentence passed thereupon by the trial Court and affirmed by the Court below.

HELD:

Appeal Dismissed

ISSUES FOR DETERMINATION

Ø  Whether or not the Court below was right when it affirmed the conviction of the Appellant in view of the admission of the evidence tending to show the Appellant’s bad character at the trial.

Ø  Whether or not the Court below was right when it affirmed the holding of the trial Court, that the prosecution proved the case of conspiracy and armed robbery beyond reasonable doubt against the Appellant, having regards to the variance on the date and venue of the offence, as contained in the particulars of the offence, date and venue proved at the trial.

Ø  Whether or not the Court below properly evaluated the conviction and sentence of the Appellant for the offence of illegal possession of firearms under Section 3(1) of the Robbery and Firearms (Special Provisions) Act. 2004 (Supra), when the prosecution did no prove that the possession of the gun (Exhibit 2) allegedly found on him was prohibited under Sections 3, 4 and 5 of the Firearms Act CAP 28 Laws of the Federation, 2004.

Ø  Whether or not the Court below understood and considered the complaint raised in issue No. 1 before it, and if not, whether the non-consideration of the issue occasioned a miscarriage of justice.

RATIONES

WORDS AND PHRASES – CHARACTER – MEANING

“Invariably, the noun ‘Character’ means the qualities that aggregate to make an individual human being distinctive from others, most especially in regard to morality and behaviour. In the case of FRANKLIN VS. LYNAUGH (1988) 487 USA 164, 174, 108 SC 1 2320 @ 2327, the US Supreme Court aptly defined character as the disposition, reputation, or collective traits of a person as they might be gathered from close observation of that person’s pattern of behaviour.” – Per SAULAWA, J.S.C.

WORDS AND PHRASES – GOOD CHARACTER – MEANING

“Thus, a ‘good character’ invariably denotes an individual person’s tendency to engage in lawful and moral (virtuous) behaviours. Contrariwise, the term ‘bad character’ denotes an individual person’s propensity for, or tendency toward, unlawful or immoral behaviour. See BLACK’S LAW DICTIONARY 11th edition (2019) @ 291” – Per SAULAWA, J.S.C.

EVIDENCE – EVIDENCE OF BAD CHARACTER

“In the instant case, apart from the evidence viva voce of the Appellant, Exhibit DWC1 was equally tendered by the prosecution vide the 1st Defendant under cross-examination. The said Exhibit DWC1 was in regard to another criminal charge (KWS/7C/2014) against the Appellant and Co-accused persons facing armed robbery prosecution. The position of the law is very much unequivocal on the issue. As copiously alluded heretofore, evidence of the fact that a defendant is of bad character is generally inadmissible in a criminal proceeding. However, there are some exceptions to this general principle. The fact that a defendant is of bad character becomes admissible:

1. a)     When the bad character of the defendant is a fact in issue; or
2. b)     when the defendant (unwittingly) has given evidence of good character thereof. A defendant may equally be asked questions to show that he is of bad character in the circumstances mentioned in paragraph (c) of the proviso to Section 180 of the Evidence Act.

The hallmark of these exceptions is that whenever evidence of bad character is admissible, evidence of previous conviction becomes equally admissible. See Section 82 (2), (3) & (4) of the Evidence Act (supra); ODOGWU VS THE STATE (2013) LPELR – SC 1221 2009 @ 33 – 34; CHUKWUEKE VS THE STATE (1991) 7 NWLR (Pt. 205) 607 @ 618 Paragraphs E – F.

Most particularly, in the case of ODOGWU VS THE STATE (Supra), it was aptly held by this Court that “the character of the Appellant was not at all relevant or in issue. That what was in issue was whether or not she killed the deceased person. And that the Appellant – had not testified at the time the witnesses gave evidence and so she could not have made her character an issue in the trial, nor did she do so in her statements other than a denial of the charge. See Section 82 (a) and (b) of the Evidence Act”. Per Ngwuta, JSC (of blessed memory) @ 33 – 34 paragraphs B-B.

EVIDENCE – INADMISSIBLE EVIDENCE – WHERE WRONGLY ADMITTED

“The law is equally well settled that where inadmissible evidence is admitted, it behoves the trial Court to expunge such evidence from the record and consider if there is any viable evidence upon which the charge could be sustained. In essence, the wrongful admission of an evidence ought not to totally affect the decision of the Court unless the use of such evidence has resulted in occasioning a miscarriage of justice. See UGBALA VS. OKORIE (1975) 22 SC 1; OKAROH VS. THE STATE (1990) LPELR 2423; OKEGBU VS. THE STATE (1979) 11 SC. In the instant case, there is no doubt that even if the evidence allegedly given under cross examination by the Appellant is expunged from the record of proceedings, there would still be other pieces of veritable evidence to sustain the conviction of the Appellant”. – Per SAULAWA, JSC.

EVIDENCE – WRONGFUL ADMISSION OF EVIDENCE

“In resolving this question, it has to be stated that the admission of an inadmissible evidence simpliciter does not fatally affect a case without none. The inadmissible evidence has to be considered in context, that is to say that the appellate Court would take a look at it to see if indeed it is inadmissible and if it is what would happen to the rest of the case where it to be expunged. That is if there is any remaining legal evidence to sustain the charge or the claim before the trial Court, this is in consonance with the principle that the wrongful admission of evidence shall not necessarily or totally affect the decision of the Court unless the use of the alleged evidence occasioned a miscarriage of justice. See Ugbala v Okorie (1975) 12 SC 1 at 22 per Musdapher, JSC (as he then was); Shittu v Fashawe (2005) LPELR – 3057 (SC).

… However, where such evidence not objected to and not stopped from being admitted by the trial Court has been admitted, the appellate Court has to be careful in allowing an appeal on the ground of reception of inadmissible evidence since the appellate Court has to weigh how the inadmissible evidence has impacted the case and if it had caused a miscarriage of justice. This is because there may be other independent, cogent and credible evidence upon which the conviction of the appellant would be affirmed by the lower Court outside the inadmissible evidence which, supports and establish the case of the respondent beyond reasonable doubt. See Lawal v The State (1966) 1 All NLR 107 at 110 – 113

The dictum of this Court in a similar situation settled the issue. See NNAEMEKA AGU JSC in OKAROH V THE STATE (1990) LPELR 2423, held thus: –

“I believe that the complain in this case can be more appropriately described and categorised as a wrongful reception of evidence. The principle applicable in such cases is settled. I should, as it were, run a blue pencil line cross the piece of evidence which has been wrongfully admitted and see whether, if the learned trial Judge has disregarded it, he could have reached the same conclusion. If I can positively say that he would have reached the same conclusion, then the wrongful admission of evidence is not one upon which an appeal should be allowed. See Section 226 (1) of the Evidence Act; R V THOMAS (1958) 3 FSC 8.”

This is yet another particular illustration of the general principle emphasised in OKEGBU VS THE STATE (1979) 11 SC 1, that a mere technical error by the Lower Court which has not embarrassed or prejudiced the Appellant or caused a miscarriage of justice is not a ground for which an appeal should be allowed.” – Per Odili, JSC.

CRIMINAL LAW – ONUS AND STANDARD OF PROOF

“It is a fundamental principle of criminal law, that every person who is charged with a criminal offence shall be presumed to be innocent until he is duly proved guilty beyond reasonable doubt. See Section 36 (5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). A fortiori, by virtue of Section 138(1) of the Evidence Act, if the commission of an offence by a party is directly in issue in any criminal or civil proceeding, it must be proved beyond reasonable doubt. See CHUKWU VS THE STATE (2007) 13 NWLR (Pt. 1052) 430; ALAKE VS THE STATE (1991) 7 NWLR (Pt.205) 567; UKPE VS THE STATE (2001) 18 WRN 84; AYUBKHAN VS THE STATE (1991) 2 NWLR (Pt. 172) 127 @ 144; BAKARE VS THE STATE (1987) 1 NWLR (Pt. 52) 579; EDE VS. FRN (2000) 18 WRN (Pt. 13); ITU VS THE STATE (2016) 5 NWLR (Pt. 1506) 443 @ 465 et al.

By the combined effect of the provisions of Section 36(5) of the 1999 Constitution (Supra) and Section 138 (1) of the Evidence Act (supra). The prosecution must prove its charge against the Appellant beyond reasonable doubt, otherwise, the Appellant ought to be acquitted and discharged” – Per Saulawa, JSC

“In answer to the question raised in the issue under discourse, it was to be said that whenever anybody is charged with the commission of a criminal offence, the onus is on the prosecution to prove the guilt of the accused beyond reasonable doubt by virtue of Section 138 of the Evidence Act.” – Per Odili, JSC

CRIMINAL LAW – ONUS OF PROOF – WHETHER SHIFTS

“It must be reiterated, that the heavy burden squarely placed upon the prosecution under Section 36(5) of the 1999 Constitution (Supra), and Section 138 (1) of the Evidence Act (Supra), does not shift. It is as constant as the ‘Northern Star’, or to borrow the words of the Court of Appeal “as constant as the June/July rains of Nigeria.” See ALAKE VS. THE STATE (1991) 7 NWLR (Pt. 205) 567 Per Niki Tobi, JCA (as the learned Lord then was) @ 591 paragraph Q. In the case of CHUKWU VS THE STATE, the trite fundamental doctrine was aptly re-echoed:

“In ensuring that the prosecution proves its case beyond reasonable doubt against an accused person, the trial Court, nay the Appellate Court, is enjoined to ensure that nothing is taken for granted.” See Martins Vs. The State (1997) 1 NWLR (Pt. 481) page 355 at 365 paragraphs E — F; Bakare Vs The State (1988) 3 NWLR (Pt. 52) 579; (1987) 3 SC at 33; Mbenu vs. The State (1988) 3 NWLR (Pt. 84) page 615 at 626 paragraphs C — D, in which the Supreme Court held emphatically, inter alia, that –

“Besides, this being a capital offence, the onus on the prosecution throughout is to establish the guilt of the accused persons beyond all reasonable doubt though not beyond any shadow of doubt. Per Nnamani, JSC (of remarkable memory).” See CHUKWU VS. THE STATE (2006) LPELR – 77 (CA)” – Per Saulawa, JSC.

“The burden on the prosecution to prove the offence against the accused is one that does not shift and includes the duty to prove all the ingredients of offence beyond reasonable doubt.” Itu v The State (2016) 5 NWLR pt. 1506, 443, at 465f, Eromosele V. F.R.N (2017) 1 NWLR pt. 1545, p.55 at 89f, Ibrahim v The State (2008) 17 NWLR pt.1115, 203 at 221e, Famakinwa V The State (2016)11 NWLR pt.1524, 538 at 560c”

– Per Odili, JSC

CRIMINAL LAW – INGREDIENTS OF THE OFFENCE OF ARMED ROBBERY AND FIREARMS

“Under the provisions of Section 6(a) of the Robbery and Firearms (Special Provisions) Act (Supra), the Prosecution (Respondent) has the onus of proving beyond reasonable doubt the following ingredients:

(i) The existence an agreement between two or more persons to do an illegal act or an act which is not illegal by illegal means;

(ii) That the illegal act was done in furtherance of the agreement and that each of the defendants (accused) participated in the illegality.

See ABDULLAHI VS THE STATE (2008) 17 NWLR (Pt. 115) 203 @ 221 Paragraph F; GBADAMOSI VS. THE STATE (1991) 6 NWLR (Pt. 196) 182; AWOSIKA VS THE STATE (2010) 8 NWLR (Pt. 1198) 49 @ 78. …

In the case of R. VS. GNANGO Appeal No. (2011) UKSC.59, the Supreme Court aptly postulated on the fundamental doctrine of Parasitic Accessory Liability (which is akin to the principle of Criminal Conspiracy):

“The ingredients for parasitic accessory liability are that two parties participate in the commission of crime A and B in the course of committing it, D1 commits crime B which D2 foresees that he might commit … There is no reason in general why the parasitic accessory liability principle cannot be applied where crime A is affray and Crime B is murder. All that is required is proof of (i) a common purpose to commit an affray which is shared by D1 and D2 in the sense that they agreed to commit the offence, and (ii) a murder committed by D1 in the course of the affray commission of which is foreseen as a possibility … All the members of the group who foresee … that he might use the knife to commit a murder would also be liable for murder. The fact that they were also guilty of an affray would be no bar to their liability for murder.”

See R. VS. GNANGO (2011) UKSC 59; (2011) LPELR – 17863 (UKSC), Per Lord Dyson @ 67 – 68 paragraphs F – E.

For a conviction for the charge of armed robbery to creditably be sustained, the prosecution is equally required to prove beyond reasonable doubt the following ingredients:

(i)     That there was a robbery or series of robberies;

(ii)    That the robbery was armed robbery; and

(iii) That the Defendant participated in the said armed robbery.

See – THE STATE VS SALAWU (2011) 17 NWLR (Pt. 1279) 883; IKPO VS. THE STATE (2016) 10 NWLR (Pt. 1521) 501 @ 519.”

CONSTITUTIONAL LAW – RIGHT OF ACCUSED TO BE INFORMED OF HIS OFFENCE

“The first point that must be made is that it is a constitutional duty imposed on the prosecution to inform an accused promptly of the nature and details of the offence he is alleged to have committed by virtue of Section 36(6) of the Constitution of the Federal Republic of Nigeria 1999. This duty is one imposed to enable the accused adequately prepare for his defence and to guarantee the accused a fair hearing in the defence of the offence allegedly committed by him. … It is true that an accused is entitled to be furnished with the time, date and place of the offence and the count and the parties bound by the charge laid against the appellant and to which he pleaded.” See Sani v The State (2015) 15 NWLR (pt.1482) 522 at 550.” Per Odili, JSC.

WORDS AND PHRASES – DEFINITION OF ‘FIREARM’

“Invariably, the term “firearm” denotes a weapon that expels a projectile (such as a bullet or pellets by the combination of gun powder or other explosive). Also termed gun. See BLACK’S LAW DICTIONARY 11th edition 2019 @ 778.

Thus, by the foregoing definition, ‘a firearm’ is any kind of gun specifically designed to be readily carried and used by a person. … A firearm is a barrelled ranged weapon that inflicts damages on targets by launching one or more projectiles driven by rapidly expanding high pressure gas produced by exothermic combustion (deflagration) of chemical propellant, historically black powder, now smokeless powder.

According to the United Nations International Protocol on Firearms:

“Firearm” shall mean any portable barrelled weapon that expels, is designed to expel or may be readily converted to expel a shot, bullet or projectile by the action of an explosive, excluding antique firearms or their replicas. Antique firearms and their replicas shall be defined in accordance with domestic law”.” – Per SAULAWA JSC

“From the provision of Section 2 of the Firearm act referred to above, any lethal barrelled weapon of any description qualifies as a firearm provided it can shoot a pellet. That provision of the law only expanded the realm of prohibition to include muzzle loading firearm of any of the categories referred to in parts I, II, III respectively of the schedule to the Act.” – Per Odili, JSC

WORDS AND PHRASES – MEANING AND NATURE OF ‘ALIBI’

“The term ‘alibi’ is derivatively Latin, denoting ‘elsewhere’. It is essentially a defense predicated upon the physical impossibility of a defendant’s guilt by placing the defendant in (an entirely) different location other than the scene of the crime at the relevant point in time. Alibi invariably denotes the quality, state or condition of having been elsewhere at the material time an offence was committed.” See BLACK’S LAW DICTIONARY 11th edition, 2019 @ 90. Per Saulawa, JSC

“Alibi means the fact or state of having been elsewhere when an offence was committed. It also means, I was not present when what is complained about happened.” See AYAN vs. THE STATE (2013) 15 NWLR (PT. 13766) 34.

DEFENCE OF ALIBI – DUTY OF ACCUSED

“In raising the defence, appellant was obligated to meeting the legal requirements of such a plea which entails that he had to furnish the necessary particulars to the police who would embark on the investigation of either confirming the alibi or debunking it. Therefore, failure to make available those needed details translated to be alibi in the first place was within his personal knowledge and the details must be furnished at the earliest opportunity.” See Sani v The State (2015) 15 NWLR (pt. 1483) 522 at 546. – Per Odili, JSC.

DEFENCE OF ALIBI – DUTY OF PROSECUTION WHEN RAISED BY ACCUSED

“plethora of veritable authorities by this Court, that it is the duty of the prosecution to check on a statement of alibi by an accused person and disprove or attempt to disprove same. Nevertheless, there is so far no particular inflexible or invariable way of disproving an alibi. If the prosecution adduces cogent, sufficient evidence to fix a person at the scene of crime at the material time the offence was committed, his alibi is thereby logically and physically crushed, thus rendering such a plea ineffective as a defence. See PATRICK NJOVENS VS THE STATE (1973) 1 NMLR 331; GACHI VS. STATE (1965) NMLR 333; BELLO VS. THE STATE (1959) WRNLR 124; R. VS. TURNER (1957) WRNLR 34; NWABUEZE VS. THE STATE (1988) 7 SCNJ (Pt. 71) 248 @ 260.

Most interestingly, all these authorities were followed by this Court in the latter case of CHRISTIAN NWOSU VS. THE STATE (1976) 6 SC 109 and a plethora of other cases, to the extent that the defence of alibi was ceased to be: The type of cheap panacea that it used to be in the hands of criminals. Now not only has the accused an evidential burden of eliciting some evidence with all necessary particulars which can be checked to show that she was somewhere else at the time the offence charged was committed at the locus of the crime but also, if the prosecution investigates the alibi and call some evidence in disproof of it, the Judge not disregarding the defence of alibi, is yet entitled to consider it from the backgrounds of other stronger evidence, if any, linking the accused person with the crime charged.” See NDUKWE VS THE STATE (2009) LPELR 1979 (SC) Per Ogbuagu, JSC @ 49 — 50 paragraphs E — F

APPEAL – WHETHER COURT OF APPEAL CAN FORMULATE ITS OWN ISSUES OR ADOPT ISSUES FORMULATED BY PARTIES

“… it needs be restated that the Court of Appeal has a wide unfettered discretionary power to formulate its own issues in the interest of Justice, provided they relate to the grounds of appeal and flow therefrom. Stated in other words, an Appeal Court can formulate its own issues where in its opinion, the issues formulated by the parties would not justify or equitably dispose off the appeal before it. Further still, an Appeal Court can also with in the same manner, prefer or adopt the issue or issues formulated by any of the parties to an appeal where same would enable it do justice to the appeal.” See OMOWORARE VS. ONWORE (2010) 3 NWLR (PT. 1180), 58 AT 80; AGBARE VS. MIMRA (2008) 2 NWLR (PT. 1071) 378 – Per Odili, JSC

CRIMINAL LAW – DEFECT OR OMISSION IN A CHARGE

“This Court has held in a number of decided cases that a defect, error or omission that does not prejudice the defence would not lead to the quashing of a conviction on a charge for a known offence. The emphasis is not on whether or not there were defects, errors or omissions in the charge, but on whether or not those defects, errors or omissions could and did infact mislead the defence.” See Ogbomor v State (1985) 1 NWLR (pt. 2) 223 at 242 – Per J. Okoro, JSC.

CRIMINAL LAW – PURPOSE OF A CHARGE

“In the case of IDI V STATE (2019) 15 NWLR (pt. 1696) 448 at 478 – 479 my learned brother, Galumje, JSC observed as follows:-

“The main purpose of a charge is to give the accused person notice of the case against him. Once the charge discloses an offence with the necessary particulars that should be brought to the notice of the accused person in order to save him from being prejudiced or embarrassed, such a charge will be good in law.” I agree that the above represents the correct position of the law. See also John v State (2019) 9 NWLR (pt. 1676) 160; Umar v Federal Republic of Nigeria (2019) 3 NWLR (pt. 1660) 549; David v Commissioner of Police (2019) 2 NWLR (Pt. 1655) 178.” – Per J. Okoro, JSC

Statutes Referred To:
1999 Constitution of the Federal Republic of Nigeria (as amended)
Administration of Criminal Justice Act, 2015
Evidence Act, 2011
Firearms Act Cap 146 Law of the Federation 1990
Firearms Act Cap F28 Laws of the Federation of Nigeria 2004
Robbery and Firearms (Special Provisions) Act, 2004.
Penal Code.