OJO AINA v. THE STATE

“Now, it is rudimentary law that where an objection to the admissibility of a statement is premised on an outright denial of having made the statement, it amounts to a retraction of the statement since it raises the question of non est factum and the statement will be admissible in evidence without the necessity of conducting a voir dire; the only issue will be the weight to attach to such a retracted statement: Ibeme vs. The State (2013) LPELR (20138) 1 at 5, Odeh vs. FRN (2008) ALL FWLR (PT 424) 1590 at 1618 and Lasisi vs. The State (2013) LPELR (20183) 1 at 28-29. The objection to a statement on the basis of non est factum is a question of fact which is determined at the conclusion of the trial as the statement even though retracted is admissible in evidence vide Aiguoreghian vs. The State (2004) 3 NWLR (PT 860) 367 at 402, Madjemu vs. The State (2001) 25 WRN 1 at 12-13, 23 and 25, R vs. Igwe (1960) 5 FSC 55 or (1960) SCNLR 158, Ehot vs. The State (1993) 5 SCNJ 65, Obisi vs. Chief Of Naval Staff (2002) 19 WRN 26 at 38-39, Egboghonome vs. The State (1993) 7 NWLR (PT 306) 385 at 431, Alarape vs. The State (2001) 14 WRN 1 at 20 and Kareem vs. FRN (2001) 49 WRN 97 at 111.

“It is equally abecedarian law that an accused person can still be convicted on the basis of such retracted confessional statement: Hassan vs. The State (2001) 7 SC (PT II) 85 at 93.

“However, the law enjoins the Court not to act on such retracted confessional statement without first applying the test for determining the veracity or otherwise of the statement and to seek any other evidence, however slight, which makes it probable that the confession is true. The tests enjoin the Court to examine the statement in the light of other credible evidence by enquiring into whether: 1. There is anything outside the confession to show that it is true. 2. It is corroborated. 3. The facts in the confession are true as far as can tested. 4. The accused person had the opportunity of committing the offence. 5. The accused person’s confession is possible. 6. The confession is consistent with other facts ascertained and proved. See R vs. Sykes (1913) 1 Cr. App R 233, Ifeanyi vs. FRN (2018) 12 NWLR (PT 1632) 164 at 191-192, Akinmoju vs. The State (2000) 4 SC (PT I) 64 at 81 and Ubierho vs. The State (2005) 7 MJ.S.C. 168 at 188-189”.

“It is hornbook law that the evaluation of evidence and ascription of probative value thereto is the primary duty of the Court of trial which has the unparalleled advantage of hearing, seeing and watching the witnesses testify and observing their demeanour. See Kim vs. The State (1992) 4 NWLR (PT 233) 17, and Okoh vs. Nigeran Army (supra) at 187.

“It is trite law that the writing of a judgment is an art and that there are several ways of going about it. Indeed, there could be as many variations as there are Judges. Whatever variation adopted, the important thing is that all the evidence adduced must be considered. There are no legal prescriptions as to any particular format to adopt in writing a judgment. See Onuoha vs. The State (1988) 3 NWLR (PT 83) 460 at 464, Awopejo vs. The State (2001) 12 SCNJ 293 at 302 and Ndukwe vs. The State (2009) LPELR (1979) 1 at 53-56. In Adamu vs. The State (1991) LPELR (73) 1 at 11-12, Belgore, J.S.C. (later CJN) stated: “(A) trial Judge has a duty to consider all the evidence before him, the more so in a criminal case where the guilt of the accused must be proved beyond reasonable doubt… The justice of a case and statutory requirements will not be met if the trial Court considers one side of the case only. Adequate consideration must be given to both sides. In discharging this duty, the Judge must evaluate all the evidence. It is not the justice of a case if a Judge without evaluating the evidence just holds that he believes one side and disbelieves the other, only evaluation will logically lead to his reasons for believing or disbelieving. Judges, being rational and objective persons must differ in style. Some evaluate the evidence witness by witness; others issue by issue with the link of each witness with the issue, and then arrive at the conclusion. Whichever style a Judge is used to or adopts, the essential thing is that he considers all the evidence before him by evaluation before arriving at his conclusion which is the finding. The mere fact that he first evaluated the evidence of the prosecution before adverting to that of the defence is not evidence of bias or wrong evaluation.” See also Ndenujuo vs. The State (2020) LPELR (49844) 1 at 12-14, Adenekan vs. The State (2020) LPELR (50406) 1 at 23-26 and Abubakar vs. The State (2020) LPELR (50443) 1 at 10-20.

“Let me iterate that the complaint under this issue is the evaluation of evidence by the lower Court. In Ezeani vs. FRN (2019) LPELR (46800) 1 at 17, evaluation of evidence was defined by the apex Court (per Okoro, J.S.C.) as follows: “Evaluation of evidence which is in the province of the trial Court is the appraisal of both oral and documentary evidence and the ascription of probative value to the evidence resulting in the findings of facts.”

“The law remains that where a trial Court properly discharges its primary duty in the appraisal of the facts and evaluation of the evidence before it, an appellate Court would have no justification and no business to interfere with the evaluation by substituting its own views of the evidence for that of the trial Court. It is only where it is shown on appeal, and the appellate Court is satisfied, that a trial Court failed to properly evaluate the evidence before it, that the appellate Court would have the duty to intervene to re-evaluate or evaluate the evidence for the purpose of ascription of the appropriate probative value and reaching the proper decision. It is not the function of an appellate Court to retry the case on the evidence on record and set aside the decision of the trial Court merely because it would have reached a different conclusion of the evidence, so long as the trial Court fully and properly, no matter the style used, appraised and evaluated the evidence before it: Ali vs. The State (1988) ALL NLR 1, Gabriel vs. The State (2010) 6 NWLR (PT 1190) 280, Igago vs. The State (1999) 12 SCNJ 140 and Adenekan vs. The State (supra). Now, are the diacritical circumstances of this matter such for an appellate Court to interfere with the evaluation of evidence and conclusions arrived at by the lower Court? We will find out in a trice.

“This is criminal matter. The law is ensconced like the Rock of Gibraltar that, in criminal cases, the burden is on the prosecution to prove its case beyond reasonable doubt.

“This legal burden, coupled with the constitutional presumption of innocence which enures in favour of an accused person necessarily connotes that there is a distinction between evaluation of evidence in civil cases and evaluation of evidence in criminal cases. Civil cases are determined on the preponderance of evidence, while criminal cases are based on proof beyond reasonable doubt. The legal position was explicitly stated by Nnaemeka Agu, J.S.C. in these words in Kim vs. The State (1992) LPELR (1691) 1 at 28-29: “… in civil cases the only way to decide which of the evidence called by the plaintiff and the defendant is more probable is by putting each of them on either side of an imaginary balance and weighing them together … This derives from the fact not only that in civil cases the onus of proof keeps on shifting, but also that in civil cases it is discharged on a balance of probabilities. In criminal cases, the position is different. Because, except in limited exceptions…, the onus is all through on the prosecution – a very high onus at that – the prosecution may still fail if the accused person does not utter a word in his defence if the prosecution fails to prove its case beyond reasonable doubt.” Learned counsel in this matter and on both sides of the divide have proffered their submissions as though the evaluation of evidence in this matter is the same as in a civil matter, with their submission that the evidence is placed on the imaginary scale of justice to see which side of the evidence outweighs the other on the scale and in whose favour the balance of the scale tilts. To boot, they have relied on decisions of the apex Court which so decided as though criminal cases were decided on how the evidence preponderates on the scale of justice. See for instance Edwin vs. The State (supra) and Okoh vs. Nigerian Army (supra). In Ebenehi vs. The State (2009) LPELR (986) 1 at 14, Ogebe, J.S.C. relying on the earlier decision of the Supreme Court in Ibrahim vs. The State (1991) 4 NWLR (PT 186) 399 at 424 asseverated: “In civil cases, the question is as to weight of evidence. The inquiry is which of the two sets of evidence on an issue outweighs the other. To ascertain this, they are put on an imaginary scale and weighed together to find which of them preponderates. But in criminal cases, the issue of preponderance of evidence does not really arise. The question is whether there is evidence of such a quality on every material ingredient or issue in the case that it ought to be believed. If there is and it is believed by the trial Judge, that is the end of the matter, provided, of course that it is manifest that he has given due consideration to the evidence by or on behalf of the defence. He needs not weigh them on a balance.” Let me hasten to state that the extract from Ibrahim vs. The State (supra) redacted in Ebenehi vs. The State (supra) is from the dissenting judgment of Nnaemeka-Agu, J.S.C. Instructively however, the dissent in the case was not on the distinction between evaluation of evidence in criminal and civil cases. It was only on the very narrow question of whether a horsewhip, which was used for robbery in the said case, is an offensive weapon.

“In Okoh vs. Nigerian Army (supra), which was a rape case, Eko, J.S.C. stated inter alia at page 188: “The procedure for the evaluation of evidence on any issue before ascribing a probative value to it … (is that) the Judge considers the totality of the evidence of the parties on an issue. He puts the evidence on either side of an imaginary scale to see which side of the evidence outweighs the other on the imaginary scale.” In Edwin vs. The State (supra) at 10-11, Muhammad, J.S.C. (now CJN) quipped: “… the correct position of the law on evaluation of evidence by trial Courts that before reaching a conclusion, the learned trial Judge is required by practice to set up an imaginary scale wherein he places the evidence adduced by the plaintiff or prosecution, as the case may be, on one side of the scale and equally places the evidence adduced by the defendant/accused, as the case may be, on the other side of the scale and weigh both together to consider the probative value in determining where the imaginary scale tilts and preponderates.” It is instructive that in the restatement of the law reproduced above in both Okoh vs. Nigerian Army and Edwin vs. The State, the case of Mogaji vs. Odofin (supra) was referred to. Apposing the dicta in Kim vs. The State (supra) and Ebenehi vs. The State (supra), with the dicta in Okoh vs. Nigerian Army (supra) and Edwin vs. The State (supra); it is effulgent that there is some uncertainty as to whether Courts of trial in evaluation of evidence in criminal cases are to proceed on the basis of considering how the evidence preponderates on the imaginary scale of justice, or if the Court needs not weigh the evidence on the scale of justice. Without a doubt, the apex Court, will at the earliest opportunity when the opportunity presents itself clear the air on this uncertainty. Let me festinate and make an advance apology if it transpires that there is actually no uncertainty and that I may merely be crying wolf where there is none!

“Having insightfully considered the judgment of the lower Court, I am not in any doubt whatsoever that the lower Court, in its own peculiar style, duly evaluated the evidence of the Appellant in defence of the action. There was consequently no breach of the principles of fair hearing. I iterate that the evaluation of evidence and ascription of probative value thereto is the primary duty of the Court of trial. The lower Court having properly discharged this duty and arrived at findings, which are not perverse, it is not the business of this Court to substitute its own views for the views of the trial Court. See Edwin vs. The State (supra) at 11, Bashaya vs. The State (1998) LPELR (755) 1 at 32-33 and FRN vs. Iweka (2011) LPELR (9350) 1 at 59.

“Prefatorily, in the resolution of issue number one, I held that the lower Court evaluated the defence raised by the Appellant in his evidence and in consequence held that the alibi raised by the Appellant during trial was an afterthought or belated. Now, alibi simply means elsewhere other than the scene of crime at the relevant time: Attah vs. The State (2010) 10 NWLR (PT 1201) 190.

“In criminal trials, where the defence of alibi is raised at the earliest opportunity, the prosecution has the burden to investigate it and disprove the same. It is not for the defendant to establish his alibi to the satisfaction of the Court; it is for the prosecution to disprove the alibi vide Osuagwu vs. The State (2013) LPELR (19823) 1 at 20-21”.

“In aliis verbis, alibi is a defence based on the physical impossibility of the guilt of an accused person by placing the accused person in a location other than the scene of crime at the relevant time, such that the accused person could not be the person who committed the offence. See Okosi vs. The State (1989) CLRN 29 at 48 and Olatinwo vs. The State (2013) LPELR (19979) 1 at 30-31”.

“The law is that notice of intention to raise an alibi must be given. This is normally done at the first possible opportunity by a suspect in answering to a charge by the Police at the investigation stage to enable the truth or falsity of the allegation to be established by the Police: Eze vs. The State (1976) 1 SC 125 at 130, Ozaki vs. The State (1990) LPELR (2888) 1 at 17 and Nomayo vs. The State (2018) LPELR (44729) 1 at 16-17”.

“In Njovens vs. The State (1973) LPELR (2042) at 52, Coker, J.S.C. held: “There is nothing extraordinary or esoteric in a plea of alibi. Such a plea postulates that the accused person could not have been at the scene of the crime and only inferentially that he was not there. Even if it is the duty of the prosecution to check on a statement of alibi by an accused person and disprove the alibi or attempt to do so, there is no inflexible and/or invariable way of doing this. If the prosecution adduced sufficient and accepted evidence to fix the person at the scene of crime at the material time, surely his alibi is thereby logically and physically demolished.” See also Madagwa vs. The State (1988) LPELR (1804) 1 at 56-57, Adebiyi vs. The State (2016) LPELR (40008) 1 at 19-20, Nomayo vs. The State (supra), Njoku vs. The State (2021) LPELR (53076) 1 at 42 and The State vs. Ekanem (2016) LPELR (41304) 1 at 10-11.