NADABO ENERGY LIMITED & ANOR THE FEDERAL REPUBLIC OF NIGERIA
April 11, 2025SULE MUSA VS THE STATE
April 11, 2025Legalpedia Citation: (2018) Legalpedia (CA) 31617
In the Court of Appeal
HOLDEN AT LAGOS
Sun Feb 25, 2018
Suit Number: CA/L/628C/2017
CORAM
PARTIES
SULAIMON OLALEKAN APPELLANTS
THE STATE OF LAGOS RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The deceased, a lady, was in the sex trade or prostitution. The Appellant met her in a brothel, they later became lovers and decided to marry, which union produced a child. The deceased informed the Appellant that she would relocate to College of Education Enugu for studies. She subsequently came back to Ijesha in Surulere, Lagos, to continue prostitution. The Appellant found out, and was distraught. Giving the impression that he needed to see her for both of them to meet the deceased’s family, the deceased came to meet the Appellant. He hired a motor-bike. While on the motor-bike at Ikotun the Appellant poured acid on the deceased and one Sunny Daniel, the motorcyclist (okada man) and fled the scene. He was chased by passers-by who caught him and handed him over to the police at Ikotun police station. The deceased was taken to Lagos State University Teaching Hospital (LASUTH) Ikeja, for medical treatment, her statement was taken by the police there. She later died from the acid attack. The motorcyclist sustained severe injuries from the acid attack. He almost lost his eyes from the said acid attack. The Appellant while giving a statement denied committing the offence, he rather maintained that the murder was done by the deceased’s boyfriend. The Appellant was arraigned before a Lagos State High Court for murder, he was convicted and sentenced to death by hanging for causing the death of the deceased. Dissatisfied with the decision of the court below, the Appellant has filed an appeal before this court.
HELD
Appeal Allowed
ISSUES
Whether the learned trial judge was right when he convicted the appellant on a charge/information filed by the respondent/prosecution in violation of a court order. Whether the learned trial judge was right when he failed to order and conduct a trial within trial on the two (2) statements tendered by the respondent and objected to by the appellant on ground of having being obtained under duress. Whether the learned trial judge had jurisdiction when he entertained and assumed jurisdiction on the charge/information filed by the respondent during the pendency of another charge on the same offence against the appellant being an abuse of court process. Whether the learned trial judge was right when he rely and acted upon on the testimony of the respondent’s 1st prosecution witness being hearsay without any corroboration. Whether the learned trial judge was right when he replied and acted on Exhibit P8 tendered by the respondent when same was not frontloaded as part of the proof of evidence and not made available to the appellant’s counsel. Whether the learned trial judge was right when he relied and acted on the oral testimony of the respondent’s 2nd prosecution witness being hearsay when the maker of Exhibit P8 was not called to testify in evidence. Whether the learned trial judge was right in his evaluation of evidence before arriving at his holding at page 18 of the judgment.
RATIONES DECIDENDI
CHARGE – EFFECT OF A FAILURE TO OBJECT TO A CHARGE TIMEOUSLY
“Not having objected to the charge contained in the information immediately after it was read over to the appellant before his plea was taken it was late in the day for the appellant to raise the matter in his final address vide Okpa v. State (2017) 15 NWLR (pt.1587) 1 at 32, Egunjobi v. F.R.N. (2013) 3 NWLR (pt.1342) 534 at 579 following Ndukwe v. L.P.D.C. (2007) 5 NWLR (pt.1026) 1, Amadi v. F.R.N. (2008) 18 NWLR (pt.1119) 259, Okewu v. F.R.N. (2012) 9 NWLR (pt.1305) 327.
At any rate, the appellant pleaded to the charge and evidence was led by the prosecution in respect of the charge against which the appellant gave sworn evidence. The appellant was therefore not misled or prejudiced as to occasion a substantial miscarriage of justice; consequently, I invoke the proviso to section 19(1) of the Court of Appeal Act, 2004 which provides that notwithstanding that the Court is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal on the point if it considers that no substantial miscarriage of justice has actually occurred. See also Agbo v. State (2006) 6 NWLR (pt.977) 545. I resolve issue 1 (supra) against the appellant.”
CONFESSIONAL STATEMENT- ON WHOM LIES THE BURDEN TO LEAD EVIDENCE AS TO THE VOLUNTARINESS OF A CONFESSIONAL STATEMENT
“Page 126 of the record indicates that the respondent sought to tender in evidence through 1st P.W. (the I.P.O.), the confessional statements of the appellant, but the appellant’s learned counsel objected that the statements were obtained under duress. The court below stated in page 127 of the record that evidence of duress was not given by the appellant and thus overruled the objection and admitted the statements in evidence as Exhibits P7(A) and P7(B). I think it was enough that the appellant objected that the confessional statements were given under duress. He was not obliged to give evidence or particulars of the duress. The burden was on the respondent to lead evidence in a trial-within-trial showing the confessional statements were voluntarily given by the appellant then the onus would have shifted to the appellant to show on the balance of probability that the confessional statements were obtained by duress.”
ADMISSIBILITY OF A CONFESSIONAL STATEMENT- APPROPRIATE PROCEDURAL STEPS TO BE TAKEN BY COURT WHERE THE ADMISSIBILITY OF A CONFESSIONAL STATEMENT IS CHALLENGED ON THE GROUND THAT IT WAS MADE UNDER DURESS
“The court below was therefore wrong in admitting the two confessional statements of the appellant to the police in evidence without conducting a trial-within-trial vide Eke v. State (2011) 3 NWLR (pt.1235) 589 where a similar scenario occurred and was captured in pages 608 – 609 of the law report and the Supreme Court held unanimously that when a confessional statement is challenged on the ground that it was made by duress or force or inducement or involuntarily the procedural step of ordering a trial-within-trial by the trial court must be taken at the point when the objection is raised to determine if the confessional statement is voluntary following Agholor v. A.-G., Bendel State (1990) 6 NWLR (pt.155) 141, Eguabor v. Queen (No.1) (1962) 1 SCNLR 409, Olabode v. State (2009) 11 NWLR (pt.1152) 254, Igwe v. Queen (1960) SCNLR 158, Ikpasa v. A.-G., Bendel State (1981) NSCC (vol.12) 300, Ogoala v. State (1991) 2 NWLR (pt.175) 509, R. v. Omokaro 7 WACA 146, Adekanbi v. A.-G., Western Nigeria (1966) 1 SCNLR 75, Auta v. State (1975) NNLR 60, Ashake v. State (1968) 2 All NLR 198, R. v. Francis and Murphy (1959) 43 Cr. App. R. 174. See also Ujang v. State (2017) 18 NWLR (pt.1597) 281 and sections 28 and 29 of the Evidence Act, 2011 (Evidence Act).”
ABUSE OF COURT PROCESS – INSTANCE WHEN AN ABUSE OF COURT PROCESS WILL ARISE
“Abuse of process of the court should normally arise where multiple complaints of the same nature are pending in a court or more than one court concurrently with malicious intention to pervert justice and obtain an unwarranted result in bad faith which was not the case here.”
EVIDENCE OF AN EXPERT – WHO MAY TENDER A REPORT IN EVIDENCE WHERE TWO OR MORE EXPERT PRODUCED SAME?
“It is acceptable that where two or more experts prepared or produced a report through joint assignment either of them is competent to tender the report in evidence as an Exhibit vide S.P.D.C. (Nig.) Ltd. v. Ademkue (2003) 11 NWLR (pt.832) 533 following Shell Petroleum Development Co. Ltd. v. Farah (1995) 3 NWLR (pt.382) 148.”
DYING DECLARATION – DETERMINANTS OF A DYING DECLARATION
“In the persuasive old English case of R. v. Bernadotti (1869) 11 Cox CC 316 a dying declaration of the deceased was held admissible, notwithstanding that she was still alive until after 7 days after the assault on him by the defendant. As held by the Supreme Court in Okoro v. State (2012) 4 NWLR (pt.1290) 351 at 372 , the fact of being in hospital for the injury as was the condition of the deceased in this case may give one the prospect of recovery but that does not remove the fear or belief that the deceased had of dying, so it would be a dying declaration of the cause of his death and who was responsible for his death as in the case there was evidence that the deceased was shot and bleeding profusely and was rushed to hospital in that condition where he made a statement on his hospital bed that “if I die you caused it” showing the statement was made at the time the deceased subjectively believed he was in danger of imminent death (per the lead judgment prepared by his lordship, Rhodes-Vivour, J.S.C.).
There is also the judgment prepared by Ngwuta, J.S.C., in page 396 of the law report inter alia that the nature and gravity or severity of the injury and the part of the body on which it was inflicted could be taken into account in determining whether what the deceased said in relation to the cause of the injury from which he later died was a dying declaration or not without necessarily requiring an expression from the deceased that he made the statement in fear of death as the nature and extent of the wound and/or cause of death may be enough to infer that the deceased believed he was dying at the time he made the statement.”
UNTESTED EVIDENCE- STATUS OF UNTESTED EVIDENCE
“Exhibits P2, P3 and P4 are statements to the police of prospective witnesses. These are not evidence to act upon vide Queen v. Akanni (1960) NSCC 78. The makers should have testified and their evidence tested under cross-examination. Untested evidence is of no probative value vide Ikaria v. State (2014) NWLR (pt.1389) 639. At the best Exhibits P2 – P4 may be used to test the consistency and veracity of the makers as witnesses in the witness-box under sections 232 and 233(c) of the Evidence Act (previously sections 199, 208 and 209 of the Evidence Act) read with the case of Aigbe and Ors. v. The State (1976) NSCC 487 per the judgment of the Supreme Court prepared by the great jurist, Bello, J.S.C., (later CJN, now of blessed memory).”
PROOF BEYOND REASONABLE- WHETHER PROOF BEYOND REASONABLE DOUBT ENTAILS PROOF BEYOND ALL SHADOW OF DOUBT
“Indeed, the gruesome act arising from crime of passion that brought the 25 year old female deceased to her untimely death (Exhibit P8) was firmly established by the evidence of 2nd P.W. and Exhibit P8 vide Esene v. State (2017) 8 NWLR (pt.1568) 337 following Onafowokan v. State (1987) 3 NWLR (pt.61) 538, Ikemson v. State (1989) 3 NWLR (pt.110) 455, Jua v. State (2010) 4 NWLR (pt.1184) 217and Bakare v. State (1987) 2 NWLR (pt.52) 579 at 595, for the proposition that proof beyond reasonable doubt in a criminal trial does not entail proof beyond shadow of doubt or proof beyond all reasonable doubt but high degree of proof in offences carrying death penalty, for the law would fail to protect society if it admitted fanciful possibility to deflect the course of criminal justice vide Miller v. Minister of Pensions (1947) 2 All E.R. 373 per Denning, J.”
OFFENCE OF MURDER – ELEMENTS OF THE OFFENCE OF MURDER
“The elements of the offence of unlawful killing or murder under section 221 of the Criminal Law of Lagos State 2011 upon which the appellant stood trial at the court below are given in section 222 thereof thus-
(1)Subject to the provisions of this law, a person who unlawfully kills another –
(a)With intention to kill that person or some other person; or
(b)With intention to do grievous bodily harm to the person killed or to some other person; Commits a felony called murder
The Supreme Court restated in Okoro v. State (supra) at 376 and 392 following Bwashi v. State (1972) 6 SC 93 and R. v. Abengowe (1936) 3 WACA 85 that in a crime of murder the prosecution must prove beyond reasonable doubt that the deceased died; that the death of the deceased was not natural; that the act of the accused caused the death of the deceased and/or the deceased died as a result of injury caused by the accused person. In addition, the intention to cause grievous bodily harm to the person killed is also one of the elements of murder.”
CONCEPT OF JUSTICE – WHETHER JUSTICE IS TRIPARTITE
“Justice is tripartite. It is for the accused; for the victim of the crime; and for the society vide Josiah v. State (1985) 1 NWLR (pt.1) 125 followed in Ganiyu v. State (2013) 10 NWLR (pt.1361) 29 at 43 – 44; and Okegbu v. State (1979) 11 S.C. 1, Kalu v. State (1988) 4 NWLR (pt.90) 503 at 513”.
TRIAL WITHIN TRIAL- CONSEQUENCES OF THE FAILURE OF COURT TO CONDUCT A TRIAL WITHIN TRIAL TO ASCERTAIN THE VOLUNTARINESS OF A CONFESSIONAL STATEMENT WHERE SAME IS OBJECTED TO
“There are legion of authorities on the legal principle that once there is an objection to the voluntariness of a confessional statement, it becomes mandatory for the trial judge to conduct a trial within trial to determine the said objection. In this case, failure to follow the procedural requirements of the law by conducting a trial within trial before admitting the confessional statement of the Appellant into evidence amounts to a big blunder on the part of the trial court. What is then the consequence of the failure of the court in this wise? See the case of Emeka v State (2001) 13 NWLR (Pt 734) 666 where Ogwuegbu, JSC said:
The law is that when an accused person contends that a confessional statement sought to be tendered in evidence was not made by him voluntarily, it is the duty of the judge to test the confession by conducting a trial within trial, in order to determine whether in fact the statement was voluntarily made. Failure of the learned trial judge to do so renders the statement inadmissible and all evidence admitted by virtue of the statement should be expunged, see Obidiozo v The State (1987) 4 NWLR (Pt 67) 48.”
CONFESSIONAL STATEMENT – PROPER ORDER TO BE MADE UPON THE WRONGFUL ADMISSION OF AN ALLEGED CONFESSIONAL STATEMENT
“Consequently, having wrongly admitted into evidence the purported confessional statements of the Appellant. i.e. Exhibits P7 (A) and (B), I too find that the statements have to be expunged for failure to conduct a trial within a trial. More so, considering the fact that the evidence discloses a substantial case which the Appellant must answer to, an order of retrial is the proper order to make in the circumstances, see the case of Ganiyu v The State(2013)LPELR-20334(SC) where Muhammad, JSC stated thus:
“Generally, it is the consensus that an appellate court will order a retrial in the sense that the procedural requirements of the law are not complied with the trial Court and the appeal is allowed on that ground and it is clear from the record of proceedings as a whole that the evidence discloses a substantial case for a proper trial of the accused: Edache v Queen(1962) 1SCNLR 22, Adisa v A,G Western Nigeria(1965) 1 All NLR 412 and Ewe v The State(1992)6 NWLR(pt. 264) 147@157
CASES CITED
None
STATUTES REFERRED TO
Administration of Criminal Justice Law (ACJL) 2011|
Constitution of the Federal Republic of Nigeria 1999, as amended|
Criminal Law of Lagos State 2011|
