Legalpedia Citation: (2015-03) Legalpedia (SC) 10963

In the Supreme Court of Nigeria

HOLDEN AT ABUJA

Thu Mar 5, 2015

Suit Number: SC. 299/2012

CORAM

PARTIES

ISRAEL PIUS APPELLANTS

THE STATE RESPONDENTS

AREA(S) OF LAW

SUMMARY OF FACTS

The Accused/Appellant was convicted for armed robbery and sentenced to death by the trial court. Aggrieved by this, he appealed to the Court of Appeal, Ibadan Judicial Division where his appeal was dismissed. The Court of Appeal however found that robbery without firearms or offensive weapon was proved by the Prosecution/Respondent against the Accused/Appellant and thus substituted the conviction of the Accused/Appellant for a lesser offence of robbery without firearms or offensive weapon under section 1(1) of the Robbery and Firearms (Special Provisions) Act Cap. 398 Laws of the Federation of Nigeria 1990 (as amended), and consequently sentenced him to 21 years imprisonment. Still dissatisfied by the decision of the Court of Appeal, the Accused/Appellant has further appealed to the Supreme Court.

HELD

Appeal dismissed.

ISSUES

1.Whether, after expunging the evidence of use of arm or force from record, the remaining evidence of the prosecution could support appellant’s conviction for robbery?

2. Whether P.W.3 and P.W.4 were tainted witnesses whose evidence required corroboration or caution, and if the answer is in the affirmative, whether the reliance on their evidence by the trial court and the Court of Appeal without corroborative evidence or caution was in grave error?

 

RATIONES DECIDENDI

TAINTED WITNESS – A TAINTED WITNESS IS EITHER A WITNESS WHO IS AN ACCOMPLICE OR A WITNESS WHO HAS A PURPOSE OF HIS OWN IN GIVING THE EVIDENCE. “A tainted witness should be limited to a witness who is either an accomplice or by the evidence he gave, whethe

TAINTED WITNESS – A TAINTED WITNESS IS EITHER A WITNESS WHO IS AN ACCOMPLICE OR A WITNESS WHO HAS A PURPOSE OF HIS OWN IN GIVING THE EVIDENCE.
“A tainted witness should be limited to a witness who is either an accomplice or by the evidence he gave, whether as witness for the prosecution or defence, may and could be regarded as having some purpose of his own to serve.” PER O. RHODES-VIVOUR, J.S.C

TAINTED WITNESS – DEFINITION OF A TAINTED WITNESS

“A tainted witness is a witness who may not, in the strict sense, be an accomplice but who, in giving his evidence, is established to have some purpose of his own to serve and in respect of whom it is desirable that warning, as to the corroboration of his evidence, may appropriately be given, Idahosa v The State [1978] 2 LRN 111; (1965) NMLR 85; Ishola v The State [1978] 9 – 10 SC 81; Mailaiyi & Anor. v. The State (1968) 1 All NLR (pt. 1) 116, 123; Ifejirika v The State [1999] 3 NWLR (pt. 593) 59; Ogunlana v The State [1995] 5 NWLR (pt. 395) 266.” PER C. C. NWEZE, J.S.C.

EVIDENCE OF A TAINTED WITNESS AND AN ACCOMPLICE – THE COURT MUST WARN ITSELF BEFORE ADMITTING THE EVIDENCE OF A TAINTED WITNESS WHILE THE EVIDENCE OF AN ACCOMPLICE MUST BE CORROBORATED.

“Another category of tainted witnesses is an accomplice. Where a witness is shown to be a tainted witness the court must warn itself before admitting his evidence and if he is an accomplice, his evidence requires corroboration. See: Adetola v. The State (1992) 4NWLR (Pt. 235) 267 at 273. Akpan v. The State (1992) 6 NWLR (Pt. 248) 439 at 461-462.” PER K. B. AKA’AHS, J.S.C.

UNCHALLENGED EVIDENCE – WHERE EVIDENCE ADDUCED IS NOT CONTESTED BY THE OTHER PARTY, THE COURT OUGHT TO ACCEPT SUCH EVIDENCE AS PROOF OF THE ISSUE IN CONTEST.

“When evidence is unchallenged, the Court ought to accept same as proof of the issue in contest. See Okupe v. Ifemechi (1974) 3 SC p.97 at 103, Alagbe v. Abimbola (1978) 2 SC p.39 at p.40, Odulaia v. Haddad (1973) 11 SC 35.” PER O. RHODES-VIVOUR, J.S.C

TAINTED WITNESS – A TAINTED WITNESS IS ONE WHO HAS AN ULTERIOR MOTIVE IN GIVING HIS EVIDENCE.

“In Okoro v. The State (1998) 14 NWLR (Pt. 589) 181 at 215-216 a, tainted witness was defined as:”—a witness who might have his own purpose to serve in giving evidence.” PER K. B. AKA’AHS, J.S.C.

EVIDENCE OF TAINTED WITNESS AND AN ACCOMPLICE – EVIDENCE OF A TAINTED WITNESS SHOULD BE ADMITTED WITH CAUTION WHILE THAT OF AN ACCOMPLICE MUST BE CORROBORATED.

“Evidence of a witness categorized as tainted can only be admitted with extreme caution after the trial judge warns himself. There must be corroboration before evidence of an accomplice is admitted. See Enahoro v. R (1965) ANLR p.125 Ishola v. State (1978)9-lSC p&l Akoan v. State (1992) 6NWLR M.248) p.439.” PER O. RHODES-VIVOUR, J.S.C

OFFENCE OF ROBBERY AS AGAINST THAT OF ARMED ROBBERY – THE OFFENCE OF ROBBERY CAN BE COMMITTED WITHOUT THE USE OF ARMS. ROBBERY IS THEFT BY THE USE OF FORCE OR THREAT OF FORCE.

“Armed robbery is an aggravated form of robbery and the offence of robbery can be committed without the use of arms. The offence of robbery is theft or extortion by force or fear of force. See: Kerenku v. Tiv N. A. (1965) All NLR 570 at 571.” PER K. B. AKA’AHS, J.S.C.

OFFENCE OF ROBBERY AS AGAINST THAT OF ARMED ROBBERY – THE OFFENCE OF ROBBERY CAN BE COMMITTED WITHOUT THE USE OF ARMS. ROBBERY IS THEFT BY THE USE OF FORCE OR THREAT OF FORCE

“Armed robbery is an aggravated form of robbery and the offence of robbery can be committed without the use of arms. The offence of robbery is theft or extortion by force or fear of force. See: Kerenku v. Tiv N. A. (1965) All NLR 570 at 571.”

TAINTED WITNESS – A TAINTED WITNESS IS ONE WHO HAS AN ULTERIOR MOTIVE IN GIVING HIS EVIDENCE

“In Okoro v. The State (1998) 14 NWLR (Pt. 589) 181 at 215-216 a, tainted witness was defined as:”-a witness who might have his own purpose to serve in giving evidence.”

EVIDENCE OF A TAINTED WITNESS AND AN ACCOMPLICE – THE COURT MUST WARN ITSELF BEFORE ADMITTING THE EVIDENCE OF A TAINTED WITNESS WHILE THE EVIDENCE OF AN ACCOMPLICE MUST BE CORROBORATED

“Another category of tainted witnesses is an accomplice. Where a witness is shown to be a tainted witness the court must warn itself before admitting his evidence and if he is an accomplice, his evidence requires corroboration. See: Adetola v. The State (1992) 4NWLR (Pt. 235) 267 at 273. Akpan v. The State (1992) 6 NWLR (Pt. 248) 439 at 461-462.”

TAINTED WITNESS – A TAINTED WITNESS IS EITHER A WITNESS WHO IS AN ACCOMPLICE OR A WITNESS WHO HAS A PURPOSE OF HIS OWN IN GIVING THE EVIDENCE

“A tainted witness should be limited to a witness who is either an accomplice or by the evidence he gave, whether as witness for the prosecution or defence, may and could be regarded as having some purpose of his own to serve.”

EVIDENCE OF TAINTED WITNESS AND AN ACCOMPLICE – EVIDENCE OF A TAINTED WITNESS SHOULD BE ADMITTED WITH CAUTION WHILE THAT OF AN ACCOMPLICE MUST BE CORROBORATED

“Evidence of a witness categorized as tainted can only be admitted with extreme caution after the trial judge warns himself. There must be corroboration before evidence of an accomplice is admitted. See Enahoro v. R (1965) ANLR p.125 Ishola v. State (1978)9-lSC p&l Akoan v. State (1992) 6NWLR M.248) p.439.”

UNCHALLENGED EVIDENCE – WHERE EVIDENCE ADDUCED IS NOT CONTESTED BY THE OTHER PARTY, THE COURT OUGHT TO ACCEPT SUCH EVIDENCE AS PROOF OF THE ISSUE IN CONTEST

“When evidence is unchallenged, the Court ought to accept same as proof of the issue in contest. See Okupe v. Ifemechi (1974) 3 SC p.97 at 103, Alagbe v. Abimbola (1978) 2 SC p.39 at p.40, Odulaia v. Haddad (1973) 11 SC 35.”

EVIDENCE ELICITED DURING CROSS-EXAMINATION – EVIDENCE ELICITED DURING CROSS-EXAMINATION HAS THE SAME PROBATIVE VALUE AS EVIDENCE ELICITED DURING EXAMINATION-IN-CHIEF

“Evidence elicited during cross-examination, if it relates to a fact in issue, has the same probative value, and is as valid and authentic, as evidence elicited during examination-in-chief. See Gaji v. Paye (2003) 8 NWLR (Pt. 823) 583, Daggash v. Bulama (2004) 14 NWLR (Pt. 892) 114.”

TAINTED WITNESS – DEFINITION OF A TAINTED WITNESS

“A tainted witness is a witness who may not, in the strict sense, be an accomplice but who, in giving his evidence, is established to have some purpose of his own to serve and in respect of whom it is desirable that warning, as to the corroboration of his evidence, may appropriately be given, Idahosa v The State [1978] 2 LRN 111; (1965) NMLR 85; Ishola v The State [1978] 9 – 10 SC 81; Mailaiyi & Anor. v. The State (1968) 1 All NLR (pt. 1) 116, 123; Ifejirika v The State [1999] 3 NWLR (pt. 593) 59; Ogunlana v The State [1995] 5 NWLR (pt. 395) 266.”

CASES CITED

NONE|

STATUTES REFERRED TO

Robbery and Firearms (Special Provisions) Act Cap. 398 Laws of the Federation of Nigeria 1990 (as amended)|

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