Azeez Okoro v. The State

I have had the opportunity of reading in draft the judgment read by my learned brother Ogundare, J.S.C. I agree with him that this appeal has merit and that it should be allowed.

The facts of the case are fully stated in the said judgment. The appellant formulated three questions for us to determine, viz;-

“1. Whether the Court of Appeal was right to hold that the appellant was properly arraigned in accordance with the

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rule in Kajubo’s case and if not should the appellant be retried or discharged?

2. Whether the prosecution proved its case, i.e. that the appellant murdered the deceased, with the necessary standard of proof?
3. Whether section 319(1) of the Criminal Code is inconsistent with section 31(1)(a) of the Constitution of the Federal Republic of Nigeria and therefore null and void, and if so whether affirmation of the death sentence by the Court of Appeal was correct”

As no respondent’s brief had been filed, these are the only issues before us. Issues Nos. 1 and 3 are identical to the appellants issues No. 1 and 2 respectively in the case of Onuoha Kalili v. The State, suit No. SC. 24/1996 which was heard on the same day (24th September, 1998) as this case and the judgment therein (unreported) was delivered earlier today. Both counsel for the parties herein – Mr. Agbakoba, SAN for the appellant and Mrs. Wonu Folami, learned Attorney-General of Lagos State, for the respondent, submitted at the hearing of this case that the court’ s decision in Onuoha Kalil’s case (supra) should apply to this case. In that case we answered both questions in the negative. The answers therefore to issues Nos. 1 and 3 herein are both in the negative for the reasons given in Onuoha’s Kalu’s case.

It remains now to answer issue No. 2 which in essence is whether the prosecution has proved its case at the trial beyond reasonable doubt. The charge against the appellant in the trial court was for murder. The deceased died of a gun shot which was allegedly inflicted on him by

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the appellant. There were two eye-witnesses to the incident – PW 1 (a half brother of the appellant) and appellant’s wife. In his evidence PW1 clearly testified that the appellant shot the deceased with his (appellant’s) gun. The wife of the appellant, who was not called as witness, made a statement to the police in the course of their investigation of the incident which led to the death of the deceased. The investigating police officer testified for the prosecution as PW3. In the course of his testimony, under cross-examination, the statement made to the police by the appellants wife was introduced by counsel for the defence who tendered the statement as evidence and it was admitted by the learned trial Judge as Exhibit E.

At the conclusion of the trial the evidence available before the trial court consisted of the eye-witness account of PW 1 and Exhibit E on one hand and the denial by the appellant in both his statement to the police under caution Exhibit C1 and his testimony, on the other hand. The appellant alleged that it was PW1 who shot the deceased.

The learned trial Judge rejected the defence of the appellant and accepted the testimony of PW1 together with the evidence in Exhibit E. The question is: did the totality of the evidence believed by the learned trial Judge prove the case against the appellant beyond reasonable doubt? In answering the question, it is obvious that the admission of Exhibit E was wrong, even if admitted under cross-examination, because the appellant’s wife who made it .was not called as a witness. The learned trial Judge could have not rightly admitted it in evidence

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because its contents were hearsay.

Now section 227 subsection (1) of the Evidence Act, Cap. 112 of the Laws of the Federation or Nigeria, 1990 provides:-

“227(1) The wrongful admission of evidence shall not of itself be a ground for the reversal of any decision in any case where it shall appear to the court on appeal that the evidence so admitted cannot reasonably be held to have affected the decision and that such decision would have been the same if such evidence had not been admitted,”

As stated earlier in this judgment, apart from the eye-witness account by PW 1 of the incident that led to the death of the deceased, there was Exhibit E, in which the appellant’s wife stated –

“My husband Azeez Okoro fired at Rafiu Ikoyi (deceased) with his dane gun in the room and Rafiu died on the spot. This incident made me and our neighbours to run away to various places.”

In making his findings, the learned trial Judge remarked thus:-

“I am satisfied upon evidence in this case that it was the act of the accused in firing his gun into the room that directly caused the death of Rafiu Ikoyi … Evidence abounds, which I believe that the accused fired his gun into the room at PW1 where PW1, the three man (sic) brought by the accused and the deceased were.

The deceased was thereby hit and he died therefrom.”

There is no doubt that the statement made in Exhibit E which was inadmissible by virtue of its being hearsay, was prejudicial to the appellant. The question to be asked is: Could Exhibit E be excluded from the evidence believed

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by the learned trial Judge and thereafter the conviction of the appellant of the offence charged be upheld if I had been the trial Judge, I certainly would have convicted the appellant on the testimony of PW1 who was an eye-witness. I would not have needed the statement in Exhibit E to convict him. This would have been in accordance with the provisions of section 227 subsection (1) of the Evidence Act. But then would the learned trial Judge have taken the same stand with me? This is an objective test, the answer to which has been provided in the decision of the Federal Supreme Court in the case of The Queen v. Olubunmi Thomas, 3 FSC 8; (1958) SCNLR 98, where de Lestang, Ag. FCJ (as he then was) held as follows at p. 10 thereof:-

“The question which must be posed therefore is, would the learned trial Judge have reached the same decision if the inadmissible evidence had not been admitted. It is impossible for us to say what effect that evidence may have had on the mind of the learned trial Judge and although we think that there was sufficient evidence without the inadmissible evidence to convict the appellant, we cannot say with certainty that the learned trial Judge must inevitably have come to the same conclusion. That being so we have no alternative but to allow this appeal, quash the conviction and sentence and order a verdict of acquittal to be entered.”

What strengthens my feeling that it could not be said with certainty that the learned trial Judge would have convicted the appellant if the evidence in Exhibit E were excluded, are the facts that there was evidence that the relationship between PW 1 and the appellant was strained and the

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learned trial Judge found it necessary to look for corroborative evidence in Exhibit E and had to warn himself about the danger of admitting the evidence of PW 1 without corroboration. Furthermore, under the doctrine of precedent, the decision in The Queen v. Olubunmi Thomas (supra) is binding on this court. I therefore have no alternative but to give the benefit of the doubt to the appellant by allowing the appeal and setting aside the decisions of the lower courts. The conviction and sentence are quashed and I enter a verdict of not guilty. The appellant is hereby acquitted and discharged.

Our law of evidence, still a colonial heritage, is biased in favour of monogamous marriage as special privilege. It is however not for court to amend the law, as that is the function of the legislature. But be that as it may, the statement made to police by the wife of the accused, even if admissible for the reason that she is his polygamous wife, is just another piece of evidence that must be tendered viva voce by the person who made it. The wife of the appellant was not called as a witness and no reason was proffered for this. Her statement to the police, Exhibit E, at the very best is hearsay and therefore inadmissible. This Exhibit E is the corroboration learned trial Judge used to believe the evidence of PW.1, whose evidence leaves many loopholes unfilled. Inadmissible evidence cannot corroborate any weak evidence. The case for the prosecution has not been proved beyond reasonable doubt. PW1, with all his antagonism towards the appellant, cannot be said to be disinterested party. I find merit in this appeal and I therefore allow it. The

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conviction and sentence of death passed by the trial court and affirmed by the Court of Appeal is set aside. I enter a verdict of discharge and acquittal.

I have been privileged to have a preview of the load judgment of my learned brother Ogundare, J.S.C with which I entirely agree.

The appellant was tried and found guilty of murder of Rafiu Ikoyi, his brother, by shooting him with a gun. He was accordingly convicted and sentenced to death by hanging. His subsequent appeal to the Court of Appeal, Lagos Division was dismissed. He has now further appealed to this court.

In compliance with the rules of this court, parties filed and exchanged briefs of argument.

Learned counsel for the appellant, Mr. Agbakoba SAN, raised the following three issues in his brief for this court’s determination-

“1. Whether the Court of Appeal was right to hold that the appellant was properly arraigned in accordance with the rule in Kajubo’E2’80’99s case and if not should the appellant be retried or discharged and acquitted?

2. Whether the prosecution proved it’s case, i.e., that the appellant murdered the deceased, with the necessary standard of proof?
3. Whether section 319(1) of the Criminal Code is inconsistent with section 31(1)(a) of the Constitution of the Federal Republic of Nigeria and therefore null and void, and if so whether the affirmation of the death sentence by the Court of Appeal was correct.”

Issues 1 and 3 supra are virtually identical in purport and

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substance to issues 1 and 2 in SC 24/1996: Onuoha Kalil v. The State the judgment of which has just been delivered. I have already signified by concurrence with the reasoning in that judgment in my concurring judgment.

I shall comment on the 1st issue by way of emphasis which is related to the arraignment of the appellant at the commencement of the trial. It was the argument and submission of Chief Agbakoba, learned Senior Advocate counsel for the appellant that the trial of the appellant was vitiated by the non-compliance with section 215 of the CPL Cap. 32 Laws of Lagos Slate and the principles laid down by this court in Kajubo v. The State (1988) 1 NWLR (Pt. 73) 721 and Erekanure v. The State (1993) 5 NWLR (Pt.294) 385.

Was the provision of section 215 CPL Lagos State complied with?

To answer this question, I have to make excursion into the trial court’s record of proceedings of 26th May, 1986, the date the accused was formally arraigned for taking is plea. It reads thus:

“Accused present.

Mrs. Onyeabo for the State

No appearance for the accused

Court: What language does accused speak.

He speaks Yoruba

Read charge and interpret to Yoruba and explain to the accused.

Plea: Accused pleads.

Not Guilty to the charge”

I have no hesitation in saying that section 215 of the Criminal Procedure Law of Lagos State was substantially

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complied with. The section reads-

“215. The person to be tried upon any charge or information shall be placed before the court unfettered unless the court shall see cause otherwise to order, and the charge or information shall be read over and explained to him to the satisfaction of the court by the registrar or other officer of the court, and such person shall be called upon to plead instantly thereto, unless where the person is entitled to service of a copy of the information he objects to the want of such service and the court finds that he has not been duly served therewith.”

The provision is to intimate the accused with the contents of the charge he is to stand trial for. The court’s proceeding of 26-5-86 clearly shows that the charge was read, interpreted and explained to the appellant in Yoruba, the language he understood. It was after the learned trial Judge was satisfied that he fully understood the charge that he recorded his plea of not guilty. The provision of the Law should not be stretched to a point of absurdity by reading into it that the judge must record that the charge was explained to the accused to his satisfaction before taking his plea. It will be impeaching the integrity of the judge to do that as no judge will take the plea of an accused if he is not satisfied that the charge was read and explained to the accused to his satisfaction. It is my view that the principles laid down in both Kajubo v. The State and Erekanure v. The State (supra) have been substantially, if not fully, complied with resulting in no miscarriage of justice. There was no contravention of or derogation from section 33(6)(a) of the Constitution of Nigeria, 1979 as the charge

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was read, interpreted and explained to the appellant in Yoruba, the language he said he understood.

Issue 1 is therefore answered in affirmative.

On issue 3, I would also say that the death penalty and its method of execution is lawful and valid as same is sanctioned by both sections 30(1) and 31(1)(a) of the Constitution of Nigeria, 1979. In support of this conclusion I adopt the reasoning contained in the lead judgment in SC. 24/96 just delivered this morning by my learned brother Iguh, J.S.C. and with which I have already signified my agreement in my concurring judgment.

Issue 3 must be answered in the negative.

Issue 2 deals with the facts and the substance of the evidence adduced by the prosecution in proof of the charge against the appellant.

Exhibit ‘”E” is the statement made by Alhaja Taibatu Olawore, the wife of the appellant, to the police. It was admitted in evidence through PW3 a Police Sergeant who was assigned to conduct further investigation into the case. In Exhibit E Taibatu Olawore made a damaging and incriminating statement against the appellant. She was not produced by the prosecution to testify and be cross-examined on her statement. There was no iota of explanation why she was not called. That notwithstanding the learned trial Judge made use of and was influenced by the contents of Exhibit E in concluding that appellant was guilty. The learned Judge said in his judgment-

“The statement of the wife of the accused, Exhibit ‘E’ said the accused came into the house with three men, who started fighting with PW1 while the accused stood by

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looking. It stated Rafiu Jimo fired into the room and shot one of the three men, wounding him. Rafiu then entered.

Exhibit ‘E’ stated further:

‘As he (Rafiu) entered into his room, hence, my husband Azeez Okoro fired at Rafiu with his dane gun.’

The statement of the wife of the accused contravened {sic} the assertion of the accused, that it was PWI who shot at Rafiu Ikoyi.

Exhibit ‘E’ further stated:

‘My husband Azeez Okoro fired at Rafiu Ikoyi with his dane gun in the room and Rafiu died on the spot. This incident made me and our neighbours to run away to various places.’

I am satisfied upon evidence in his case that the gun shots that killed the deceased came from the gun of the accused.

Exhibit ‘E’, the statement of the wife of the accused, was tendered during cross-examination of prosecution witness, by the defence.

If, that is Exhibit ‘E’, stated that accused fired his gun at the people in the room where the fight was going on.

I am satisfied upon evidence in this case that it was the act of the accused in firing his gun into the room that directly caused the death of Rafiu Ikoyi.”

The learned trial Judge having made reference to the evidence including Exhibit E, went on to state that-

“I have had the opportunity of seeing and hearing PW 1 testify. He impressed me as a witness of truth.

Having fully warned myself, I am of [he firm view that his testimony was truthful and reliable.”

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In the first place Exhibit E is inadmissible as evidence against the appellant as its maker was not called nor was any explanation proffered in that regard.

It is nothing but a piece of hearsay evidence. See section 227(1) of the Evidence Act and Ozude v. I.G.P. [1965] 1 All NLR 102 and Minister of Lands Western Nigeria v. Azikwe & Ors. [1968] 1 All NLR 49.

Now coming back to the evidence of PW 1, the learned trial Judge had no duty to warn himself before accepting that evidence if there was no agitation in his mind that PW1 was a tainted witness who might have his own purpose to serve, particularly when the relationship between the appellant and PW1 is critically considered vis-a-vis the facts in this case. No law says that an accused person cannot be convicted on the clear and unimpeachable evidence of a single witness. Such evidence does not require any corroboration.

Even when this court disregards the inadmissible evidence contained in Exhibit E, there is still left to be answered what influence such evidence might have had on the mind of the learned trial Judge as regards his conclusion on the guilt of the appellant. This all important point in this case was dealt with by this court in the Queen v. Thomas (1958) SCNLR 98; (1958) 3 FSC 8 particularly at page 10 where de Lastang Ag FCJ said-

“The question which must be posed therefore is, would the learned trial Judge have reached the same decision if the inadmissible evidence had not been admitted? It is impossible for us to say what effect that evidence may have had on the mind of the learned trial Judge and although we think that there was sufficient evidence

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without the inadmissible evidence to convict the appellant, we cannot say with certainty that the learned trial Judge must inevitably have come to the same conclusion. That being so we have no alternative but to allow this appeal, quash the conviction and sentence and order a verdict of acquittal to be entered.”

With these elements of doubt in this case which were fully discussed and commented upon in the lead judgment of my learned brother Ogundare, J.S.C. and with which I have already signified my agreement, there is no alternative for me other than to give the benefit of the doubt to the appellant and enter a verdict of acquittal and discharge in his favour.

The appeal succeeds. The judgments of the trial court and the Court of Appeal are hereby set aside. The appellant is acquitted and discharged.

I have had the privilege of reading in draft the judgment just delivered by my learned brother Ogundare, J.S.C. and I agree with him that this appeal should be allowed.

The issues for determination are:

“1. Whether the Court of Appeal was right to hold that the appellant was properly arraigned in accordance with the rule in Kajubo’s case and if not should the appellant be retried or discharged and acquitted?

2. Whether the prosecution proved its case, i.e., that the appellant murdered the deceased, with the necessary standard of proof?
3. Whether section 319(1) of the Criminal Code is inconsistent with section 31(1)(a) and if so whether the

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affirmation of the death sentence by the Court of Appeal was correct.”

Issues 1 and 3 are similar to issues 1 and 2 in SC.24/1996 (Onuoha Kalil v. The State) which was heard the same day before the hearing of the present appeal. Learned counsel for the parties in SC.24/1996 are the same as in this appeal. They agreed that the decision of this court on issues 1 and 3 in this appeal will abide the resolution of issues 1 and 2 in SC.24/1996. Having regard to the resolution of those issues against the appellant in SC.24/1996, issues 1 and 3 herein are accordingly resolved against the appellant in this appeal. The only issue left is issue 2 which I will now consider.

The wife of the appellant (Alhaja Taibatu) made a statement to the investigating police sergeant (PW3) in the course of his investigation. Alhaja Taibatu was not called as a witness but the defence tendered her statement through PW3. It was admitted in evidence as Exhibit “E” without any objection. Exhibit “E” is hearsay evidence which was wrongly admitted in evidence. The learned trial Judge should have stopped the statement from being admitted in evidence when the prosecuting counsel failed to object to it.

The learned trial Judge referred to this exhibit in his judgment. Immediately after referring to Exhibit “E” he held as follows:

“I am satisfied upon evidence in this case that it was the act of the accused in firing his gun into the room that

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directly caused the death of Rafiu Ikoyi.”

The only eye witnesses to this crime were PW1 and the wife of the accused. Exhibit “E” was part of the evidence which the learned trial Judge considered and it was very prejudicial to the appellant.

On wrongful admission of evidence, section 227(1) of the Evidence Act Cap. 112 Laws of the Federation of Nigeria 1990 provides:

“227(1) The wrongful admission of evidence shall not of itself be a ground for the reversal of any decision in any case where it shall appear to the court on appeal that the evidence so admitted cannot reasonably be held to have affected the decision and that such decision would have been the same if such evidence had not been admitted,”

In this case the admission of Exhibit “E” was unfair to the appellant. Even though there was sufficient evidence without Exhibit “E” to convict the appellant, I am not convinced that the inadmissible evidence did not affect the mind of the learned trial Judge. That being so, the only course open to the court is to allow the F appeal. See The Queen v. Thomas (1958) 3 FSC 8: (1958) SCNLR 98; The Queen v. Haske (1961) 2 SCNLR 90; (1961) 1 All NLR (Pt. 2) 330; Ajayi v. Fisher (1956) 1 FSC 90; (1956) SCNLR 279 and Stirland v. D.P.P. (1944) AC 315.

I will allow the appeal, quash the conviction and sentence and a finding of acquittal and discharged is hereby entered.

I have had the privilege of reading in draft the leading judgment just delivered by my learned brother, Ogundare, J.S.C. and I agree that there is merit in this appeal.

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The facts of this case, as found by the trial court and affirmed by the court below would appear to be straight forward. These, simply put, are that the appellant, without any legal justification whatever, shot at and killed the deceased on or about the 14th day of July, 1984 at Ifatedo village, Alagbado in the Ikeja Judicial Division of Lagos State. This is the evidence of PW1, Jimo Oseni, the brother of the appellant, who witnessed the incident. Although the appellant claimed that the deceased died as a result of gun shot injuries he received from PW 1, both courts below dismissed this allegation as untruthful. Said the trial court-

“In this case, PW1 vividly testified as to how the deceased met his death from injuries he received from gun shot wounds from the gun of the accused. The accused prevaricated in his testimony and said it was the gun shots from the gun of the deceased that killed him, having been tired by P.W.1.

I have no hesitation in preferring and believing the testimony of the witness, PW 1 on the issue. I disbelieve the evidence of the accused that it was PW1 who fired at the deceased. I am satisfied upon evidence in this case that the gun shots that killed the deceased came from the gun of the accused.

The accused did not deny he had a gun on the day of the incident. He testified he took the gun away from his house, the scene of the crime, and that the said gun could no longer be seen. It is not in dispute that the gun, Exhibit

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P, belonged to the deceased, I believe PW1 that Exhibit F was not the gun that killed the deceased …” (Italics supplied)

The above are clear findings of fact which, with regard to the offence charged, do not in law require any corroboration. Additionally, they were affirmed by the court below and, unless, therefore, they are found to be perverse or unsupported by the evidence or reached as a result of a wrong approach to the evidence or a wrong application of a principle of substantive law or procedure, this court, even if disposed to come to a different conclusion upon the printed evidence, cannot do so. See Enang v. Adu (1981) 11-12 SC 25 at 42; Igwego v. Ezeugo (1992) 6 NWLR (Part 249) 561 at 574, Woluchem v. Gudi (1981) 5 SC 291 at 326 etc. It is clear to me that in the event of the above findings of fact being unimpeachable, then of course no option would be  left to this court than to uphold the conviction and sentence of the trial court against the appellant as affirmed by the Court of Appeal.

The learned trial Judge however went on to justify his findings thus-

“Exhibit E, the statement of the wife of the accused was tendered during cross-examination of a prosecution witness by the defence. If, (sic) that is Exhibit E, stated that accused fired his gun at the people in the room where the fight was going on. I am satisfied upon evidence in this case that it was the act of the accused in firing his gun into the room that directly caused the death of Rufai Ikoyi. I have carefully considered the role of PW1 in this

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case. I have warned myself of the danger of relying heavily on his testimony. I have had the opportunity of seeing and hearing PW.1 testify. He impressed me as a witness of truth.

Having fully warned myself, I am of the firm view that his testimony was truthful and reliable.” (Italics supplied).

It is indisputable that Exhibit E, the written statement of the appellant’s wife who was not called as a witness at the trial was inadmissible in evidence except in proof of the fact that it was made to PW3. There was clearly no basis on the part of the appellant’s learned counsel for tendering the exhibit in evidence when this was not for the purpose of contradicting the maker or impugning her credibility as a witness. It was also an error on the part of the respondent not to have objected to the admissibility of Exhibit E in evidence and a more serious error on the part of the trial court to have admitted and used the exhibit in evidence against the appellant.

The law is well settled that the wrongful admission of evidence shall not of itself be a ground for the reversal of a decision where it appears on appeal that such evidence cannot reasonably be held to have affected the decision and that such decision would have been the same if such evidence had not been admitted. See Ezeoke v. Nwagbo (1988) 1 NWLR (Pt.72) 616 at 630; Umeojjiako v Ezenamuo B (1990) 1 NWLR (Pt. 126) 253 at 270; Monier Construction Co. Ltd. v. Azubuike (1990) 3 NWLR (Pt.136) 74 at 88 etc. And I ask myself whether the contents of the inadmissible document, Exhibit E, cannot reasonably be held to have affected the decision and that

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the judgment would have been the same if such evidence had not been received. I ask myself whether the learned trial Judge would certainly have reached the same decision if he had excluded the inadmissible evidence, Exhibit E, from the proceedings. I think it is in the answer to these questions that my entire difficulty in this appeal hinges.

In the first place, it is plain that the contents of Exhibit E are very much prejudicial to the appellant and corroborative of the damnifying testimony of the star witness for the prosecution in all essential and material particulars. That statement, in a nutshell, is to the effect that it was the appellant who fired his gun at the people in the room where the deceased and others were and as a result of which the deceased was hit and thereby killed. I have given this matter very anxious consideration and I confess that I find myself unable to state with any degree of certainty whether or not the contents of Exhibit E might have affected the mind of the learned trial Judge in arriving at his findings of fact against the appellant. It is clear to me that there seems to be sufficient evidence from PW 1 upon which the appellant could be convicted as charged. I am however unable to say with any degree of certainty that the learned trial Judge would necessarily have arrived at the same conclusion on the facts as he did without the influence of Exhibit E. I think the court below was in error to have overlooked the inadmissibility of Exhibit E in evidence and its possible effects on the findings of the trial court.

It is for the above and the more detailed reasons contained in the judgment of my learned brother that I,

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too, allow this appeal, set aside the judgments of the two courts below and acquit and discharge the appellant of the charge of murder of Rufai Ikoyi preferred against him.