Judgment
AMINA ADAMU AUGIE, J.S.C. (Delivering the Leading Judgment): The Appellant, who was arraigned before the Kwara State High Court, on a two-count charge of conspiracy and armed robbery, was alleged to have conspired with “two others at large” and robbed “Abdulrasaq Abubakar”, while armed with firearms and other dangerous weapons.
At the trial, the said “Abdulrasaq Abubakar” testified as PW3 and the other witnesses called by the Prosecution included his brother, Bakare Muideen LPW2J, who was also a victim; a Vigilante member, Edungbola Adeniyi (PW41 who narrated how the Appellant was caught after the said robbery, and a mask, 3 handsets and money (new notes) were found on him and Saka Adetoro (PW51, who is PW3’s neighbour.
PW1 Corporal Opaluwa, a Police Officer and an Exhibit-Keeper, identified the sum of N23, 150 in fifty Naira denomination, iron cutter, a black knitted mask cap, and a Techno GSM handset, as the items he registered in connection with the case against the Appellant, and the said items were admitted in evidence as Exhibits P1, P2, P3 and P4.
The Investigating Police Officer, Bunmi Abdulrasheed Adegoye, attached to ‘F’ Division, Tanke, Ilorin, who testified as PW6 identified Exhibits P3 P2 and P4 and he also testified that a Photographer took pictures of the scene, and that he recorded the Appellant’s Statement.
The Defence Counsel objected to the admissibility of the photographs and the said Statement of the Appellant recorded by PW6 in evidence, and in its ruling on the objection, the trial Court concluded as follows: “Mere retraction of the Statement – – does not ipso facto render the Statement inadmissible – – – The accused, apart from thumb printing, also signed the Statement.
The Court will, however, concede to trial within trial to test the voluntariness of the Statement – – The tendering of the photographs without notifying the defence amounts to taking the defence by surprise and amounts to denial of fair hearing – – For this reason, the photographs and negatives sought to be tendered are hereby rejected in evidence.”
After the trial within trial in which two Police Officers, including PW6 as T.P.W1 testified, the trial Court held in its Ruling of 25/3/2013 that: “In the absence of voluntariness in the Statement allegedly made by the accused due to some doubts created in the mind of the Court as a result of discrepancies in the statement and accused’s evidence in trial within trial which doubt must and is resolved in favour of the Accused, coupled with (his) assertion that he was made to sign an already prepared Statement, Statement sought to be tendered by the Prosecution is hereby rejected and shall be marked tendered but rejected.”
