Appellate court has power to reject inadmissible evidence – SC

The appellant dissatisfied with the judgment of the trial court appealed to the Court of Appeal or court below for short, which in turn dismissed the appeal and affirmed the conviction and sentence of the court of trial. Further dissatisfied the appellant appealed to the Supreme Court on four grounds of appeal.Background facts:The appellant was […]

The appellant dissatisfied with the judgment of the trial court appealed to the Court of Appeal or court below for short, which in turn dismissed the appeal and affirmed the conviction and sentence of the court of trial. Further dissatisfied the appellant appealed to the Supreme Court on four grounds of appeal.
Background facts:
The appellant was arraigned and tried before Justice AlabaOmolaye-Ajileye of Kogi State High Court on a two count charge of conspiracy and armed robbery punishable under sections 97(1) and 298(c) of the Penal Code.
The position of things put forward by the prosecution is that on or about the 16th day of June, 2007 at about 7.15 pm in the evening, the appellant in conjunction with others at large went to Phase 1 of Lokogoma Extension, Lokoja and stormed the sitting room of one Raphael Olajide Sabo who later testified as PW1 and who at the time was eating with his wife, PW2 and their daughter in the sitting room.
The appellant and the others who were armed with guns, on entering PW1’s sitting room introduced themselves as assassins on a mission to kill PW1. They demanded for money and when PW1 told them he had five thousand naira (N5,000.00) in his car parked outside, they collected the car key from him and went to the car and collected the money.
The appellant and the others at large held PW1 and PW1’s family hostage for a long time while they ransacked the whole house searching for money. Appellant took PW2 to her room, demanded for and took her jewelleries, handsets and money. Also the appellant and his colleagues made away with the Honda car along with five thousand naira in the car, First Bank current and savings account passbook, a pair of glasses, jewelleries, handsets, some cassettes, personal and national identity cards belonging to PW1 and PW2.
After the robbery operation, PW1 and PW2 went to ‘A’ Division Police Station to report the incident and they were referred to the Police Headquarters where they made a report. Two months later PW1 was informed by the Criminal Investigation Department (C.I.D) that some thieves had been caught in Abuja and brought to Lokoja upon which PW1 and PW2 were asked to come and identify them.
The Honda Halla Car was later recovered at Suleja by the Police with the aid of a confessional statement furnished by the appellant.
The car was released to the PW1 who entered into a bond to produce the vehicle whenever required which bond was tendered and admitted as Exhibit P1. ASP Obochi Christopher gave evidence as PW3 and he had led a team of detectives upon information that some suspects were arrested in Abuja and after investigation, two suspects including the Appellant who were found to be connected with the robbery incident in Lokoja were released to PW3 and his team for further investigations.
Appellant confessed that he was one of those who came to the house of PW1 and PW2 to rob them. When the confessional statement was sought to be tendered by the prosecution at the trial, the defence raised an objection as to its admissibility on the ground that it was not voluntary and after trial-within-trial, it was admitted as Exhibit P2.
At the trial, the Appellant pleaded not guilty to the charge and the prosecution called four witnesses, PW1, PW2, PW3 and PW4 and tendered two exhibits, Exhibits P1, the bond entered into by PW1 to produce the Honda Halla and Exhibit P2 – the confessional statement of the appellant.
The Appellant gave evidence in his defence and called no witnesses. He denied committing the offence and ever coming to Lokoja on the 16th of June, 2007. That he was residing in Abuja as an automobile mechanic at the time of the crime and was in his house at No.35, Road 35 opposite Federal Government Gwarimpa Estate, Abuja on the 16th of June, 2007. The counsel on either side addressed the court at the close of evidence at the end of which the court of trial convicted the appellant for the offences of conspiracy and armed robbery under sections 97(1) and 298(e) of the Penal Code and the subsequent appeal to the court below and now at this court.
Learned counsel for the appellant identified three issues for determination as follows:-
(1) Whether the learned Justices of the Court of Appeal did not err in law when they dismissed the Appellant’s appeal, held that the reliance and utilization by the learned trial court of the evidence of the Prosecution’s first and second witnesses (PW1 and PW2 daughter, an individual being a person) who did not give evidence in the matter at all to convict the appellant and sentence him to three and five years prison terms is one that bothers on typographical error, or mere observation or at most amount to a wrongful admission of evidence by the trial court under Section 227 of the Evidence Act that did not influence the decision of the trial court.
(2) Whether the learned Justices of the Court of Appeal did not err when rather than address properly and fully the breach of the appellant’s fundamental right to fair hearing and consequences of the breach being a relevant issue for determination consigned the relevant issue to one of shadow and held that the appellant’s case is a bad one that cannot be saved even where there is breach of the principle of fair hearing?
And/or whether a party’s constitutional right to fair hearing can be sacrificed on the altar of a court’s impression that in spite of a typographical error at the instance of a court against the interests of a party, “where a case is bad, it is bad, there is nothing that can change it, not even resorting to breach of fair hearing can resolve it.”
(3) Whether the learned Justices of the Court of Appeal did not err and occasioned a miscarriage of justice when in spite of the facts and circumstances surrounding the trial court’s foreclosure that an identification parade was not necessary considering that the appellant was not arrested at the scene of the crime relied on the confessional statement as sufficient to make an identification parade not necessary?
The issues as crafted by the appellant seem straight forward and simple and I shall utilize them in the determination of this appeal.
ISSUES 1, 2 & 3:
These issues in the main question the rightness of the Court of Appeal in agreeing with the trial court’s using the evidence emanating from the daughter of PW1 and PW2 when she did not testify in court and thereby an infringement of Section 227 of the Evidence Act was made. Also, if the appellant’s constitutional right to fair hearing was not infringed when that evidence of the daughter of the complainants was utilized on the basis that, what the record showed in that regard was a mere typographical error.
I must state that the third issue of the appellant questioning whether the lack of an identification parade was not fatal to the case of the prosecution was not argued by them, since appellant had that issue withdrawn in his brief and it is hereby struck out.
The thrust of the argument of the learned counsel for the appellant along the line of his Brief of argument is that the principle of fair hearing in regard to the appellant was compromised when the trial court and affirmed by the court below utilized the extra judicial statement of the daughter of the complainants, PW1 and PW2 without the appellant being availed of the testimony of that daughter in court and the cross-examination that the appellant would have subjected her testimony to. That the situation throws up the application under Section 36 of the Constitution of the Federal Republic of Nigeria 1999. In this wise, I shall cite the case of Alabi v Lawal (2004) 2 NWLR (Pt.852) 134 at 147 – 148 wherein the Court of Appeal held thus:-
“The attributes of fair hearing presupposes that the court or tribunal shall hear both sides not only in the case but also in all the material issues before reaching decision in the case which may be prejudicial to any party in the case. The court shall give equal treatment, opportunity and consideration to all concerned. Accordingly, natural justice demands that a party must be heard before the case against him is determined.”
The appellant is insisting that the use of the extra judicial statement of the daughter of the PW1 and PW2 without her coming to testify on oath and be cross-examined by him or counsel on his behalf denied him the right of fair hearing which renders the entire proceedings including the decision, conviction and sentence a nullity and the appellant entitled to have the proceedings set aside in the interest of justice. To consider the submission of the appellant on this lack of fair hearing is to go back to the Record to see if indeed his right was denied him by a person whose evidence was crucial to settle a critical point in examination in chief and cross-examination was not produced, while the trial court went ahead to consider the extra judicial statement of such a person and utilizing it came to a decision adverse to the appellant.

To be continued