Continued from last week
It is clear from the foregoing that the Appellant was saying that he did not make the statement but that he was forced to sign. In other words, he denied ever making the statement. In the circumstances, the statement was admissible in evidence.
If it was admitted, the lower court would at the end determine if the Appellant made it and if it so holds to assess the probative value of the evidence therein. If however, the Appellant had admitted making the statement but went further to allege that he made it under duress or any form of inducement or promise, the statement would have been inadmissible, unless a trial within trial was conducted to test the voluntariness, or otherwise, of the statement and not its truthfulness. See Saidu v. State (1982) 4 SC 41.
In my view Exhibit B was admissible because the Appellant denied making it. It was not admissible for the reasons stated by the lower court in its ruling one of which is contained at page 20 of the record of appeal being the truthfulness of the statement. This is what the lower court stated: “I am satisfied with the truth of the statement sought to be tendered in evidence and I hereby admit it as Exhibit B.”
The lower court was also wrong in testing the statement in its ruling on the admissibility or otherwise of the statement in evidence. That test was to have been done as shown earlier in this judgment at the end after the hearing and addresses of learned counsel and at judgment stage where the court would have first determined if the Appellant made the statement and then assess its probative worth or value.
It is instructive to note that the Appellant made two statements to the police. On the 3rd December, 2005 at Olofin Police Station, Idanre the Appellant made a statement (Exhibit A) which the prosecution did not tender.
However, it was tendered through PW1 under cross-examination. In this statement which the Appellant made at the earliest opportunity, he said that it was one Olu who stabbed the deceased with a broken bottle. Exhibit A reproduced in part hereunder reads as follows: “So on 2nd Dec. 2005 between 9:00-10:00p.m. I and Olu were coming from one man called NEPA. Mainwhile this Olu, now at large, and the deceased known as Teacher have had a quarrel before on that very day. So as Olu saw the deceased coming in front of Aina’s house who is a beer seller, Olu broke the bottle of beer he was drinking and used it to stab the deceased. After stabing the deceased, Olu took to his heels.
The deceased was shouting that (Christopher) “Friday you have killed me, Friday you have killed me. This is because the deceased does not know the name of Olu that stabbed him. Aina is a beer seller at Aponmu Okemaye. I am not the person that stabbed the deceased. The deceased by name Teacher is my friend. I and the deceased have known ourselves for the past 8 months.”
Exhibit B relied heavily upon as evidence on which the Appellant was convicted reproduced extensively immediately hereunder reads as follows: “On 2nd December, 2005 at about between 9.00p.m. (and) 10.00p.m. I came back from Owena where I went to brush some cocoa plantations for one man called Party. When I came back I went straight to Mama Aina beer palour. I and Olumide were sitting outside the beer palour and Olumide requested for two bottles of 33 beer. I took one bottle of 33 beer. When Teacher came out from NEPA house and called me, I told him to leave me alone but he came to me where I was drinking and touched my head, and I swear for him.
Teacher now pushed me and I took the 33 empty bottles and stabbed him on the neck. Teacher now shouted that Friday has killed me, I know Teacher has dead. I do not know the original name of Teacher. Aina sold the drinks for me and Olumide. Actually, I took some palm wine from one party at Owena, we were up to seven people that drank palm wine at Owena. Olumide is a Yoruba boy and he is my friend; he was the only one who witness the fight. Stephen was inside mama Aina house he did not witness the fight. Immediately Aina gave the drinks she left us outside where we sat on one bench. I did not know anything about dog meat and there was no fight on dog meat. I know I stabbed (sic) Teacher. Aina did not know I was drunk. But I knew in me that I was drunk. I killed Teacher.”
How did the lower court handle the above pieces of evidence? At page 41 of the record of appeal the lower court stated thus: “Learned counsel for the defence has made a heavy weather of the statements of the accused exhibits A and B, I have gone through the statement in the course of writing this judgment.
Exhibit B seem (sic) more probable to me than exhibit A …..” It is trite law that contradictions in the evidence adduced by the prosecution on material issues must be resolved in favour of the accused person. See Igbo v. State (1975) 11 SC 129, State v. Emine & Ors (1992) NWLR (Pt 256) 628 and Ononuju v. State (2013) 6 SCNJ 458.
It is crystal clear from Exhibits A and B that there were material contradictions in the evidence of the prosecution and the lower court was not entitled to prefer one of the exhibits as against the other.
The two exhibits were violently contradictory. In Exhibit B the Appellant was damnified while Exhibit A was xculpatory. The unanswered question on the available evidence still is who stabbed the deceased? It was not for the court to pick and choose from either Exhibits A and B who stabbed the deceased.
The case of R v. Itule (1961) ALL NLR 462 relied upon by the learned counsel for the Respondent is not applicable to this case. The Appellant at the earliest opportunity told the police in Exhibit A that it was one Olu who stabbed the deceased. In that statement the Appellant said it was one Olu that stabbed the deceased. There is no evidence the police bothered to look for the said Olu. From what PW1 said under cross-examination, they did not look for the said Olu. The lower court had taken into consideration the failure of the Respondents to investigate the contents of Exhibit A it would have been slow to find that it was the Appellant that stabbed the deceased.
It is also instructive to note that the Appellant in his defence in court maintained that it was Olu that stabbed the deceased. It was not enough for the police to merely claim that they were not sure if Olu was with the others at the time of the incident when none of the people who was there was called to testify. There was therefore no basis for the PW1 saying that he was not sure if Olu was at the scene.
PW1 himself was not there. Investigation is a very serious undertaking and should not be taken with the levity with which the police investigated this case. The police should also not find ready company in the courts. Evidence of any crime particularly serious crimes of this nature should be meticulously scrutinized by the courts before finding accused persons guilty at the slightest opportunity.
As no evidence was led by the prosecution to prove that it was the Appellant and not Olu that stabbed the deceased, the Respondent in my view failed to prove, not only the offence of murder for which the Appellant was charged but also the offence of manslaughter for which he was convicted and sentenced to 10 years imprisonment.
In my view, the lone issue formulated by the Respondent should be resolved in favour of the Appellant. I accordingly resolve it in favour of the Appellant.
The conviction and sentence of the Appellant are hereby quashed by me and the Appellant discharged and acquitted.
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