Whether Proofs Of Evidence Is A Piece Of Legal Or Judicial Evidence Which A Court Can Act Upon

By Legalpedia

ADEDAYO OLADELE v. STATE

suit
no: CA/IB/496C/2017

Legalpedia Electronic Citation: (2021)
Legalpedia (CA) 14181

Areas Of Law:  

Appeal, Court, Criminal Law And Procedure, Law Of Evidence,
Practice And Procedure, Words And Phrases

Summary Of Facts:

The Appellant herein, Adedayo Oladele, was the 2nd accused
person and was charged before the High Court of Ogun State on five
counts for the offences of conspiracy commit a felony to wit: armed
robbery contrary to Section 6(b) and Punishable under Section
1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap.
R.11, Laws of the Federation of Nigeria, 2004; armed robbery
contrary to Section 1(2)(a) of the Robbery and Firearms (Special
Provisions) Act, Cap. R11, Laws of the Federation of Nigeria, 2004;
and unlawful possession of firearms contrary to Section 4 and
Punishable under Section 27(b)(1) of the Firearms Act, (Cap.F.28)
Laws of the Federation of Nigeria, 2004.

It was the Prosecution’s case that at about 2.00am on 11th
November, 2010 there was an armed robbery incident at No. 10
Owakumudy Street, Ijebu Ode and the victims were robbed of their
money and other valuables at gunpoint.

At daybreak, the victims heard that the Police arrested some
persons with some items, which they could not account for. They
therefore went to the Police Station and identified the Appellant
and his co-accused as among the robbers who robbed them.

The Appellant denied the offence charged and retracted the
confessional statement he made. In proof of its case, the
Prosecution called one witness, the Investigating Police Officer
(IPO), who investigated the matter at the State CID Eleweran,
Abeokuta, after the matter had been transferred there from the
Police Station where the Appellant was arrested.

The Prosecution tendered several exhibits in evidence, including
the extra-judicial statements of the victims of the robbery, who
were not called as witnesses. The Appellant testified in his
defence and did not call any other witness. At the conclusion of
trial, the lower court convicted the Appellant as charged and
sentenced him to death.

The Appellant being dissatisfied with the judgment appealed
against the same by Notice of Appeal.

HELD:

Appeal Allowed

ISSUES FOR DETERMINATION

Nil

RATIONES

PROOF BEYOND REASONABLE DOUBT – NATURE OF THE
REQUIREMENT OF PROOF BEYOND REASONABLE DOUBT
“Our adversary criminal justice system is accusatorial. This is in
tune with Section 36 (5) of the Constitution of the Federal
Republic of Nigeria 1999 (as amended), which provides that every
person charged with a criminal offence shall be presumed innocent
until he is proved guilty. The necessary corollary of this
presumption of innocence is that the Prosecution has the onus of
proving the commission of the crime charged beyond reasonable doubt
as stipulated in Section 135 of the Evidence Act, 2011. Proof
beyond reasonable doubt does not mean that the Prosecution must
prove the case with mathematical exactitude: Adeoye
vs. The State (2011) LPELR (9091) 1. It does not mean
proof beyond all shadow of doubt; so where the evidence adduced is
strong as to leave only a remote probability in favour of the
accused person, then the case is proved beyond reasonable doubt. In
the words of Oputa, JSC (of most blessed memory)
in Bakare vs. The State (1987) 3 S.C. 1 or (1987)
LPELR (714) 1 at 12 – 13: “Proof beyond reasonable
doubt stems out of the compelling presumption of innocence inherent
in our adversary system of criminal justice. To displace this
presumption, the evidence of the prosecution must prove beyond
reasonable doubt, not beyond the shadow of any doubt that the
person accused is guilty of the offence charged. Absolute certainty
is impossible in any human adventure including the administration
of criminal justice. Proof beyond reasonable doubt means just what
it says. It does not admit of plausible and fanciful possibilities
but it does admit of a high degree of cogency, consistent with an
equally high degree of probability. As Denning, J. (as he then was)
observed in Miller v. Minister of Pensions (1947) 2
ALL E.R. 373: –

‘The law would fail to protect the community if it admitted
fanciful possibilities to deflect the course of justice. If the
evidence is so strong as to leave only a remote possibility in his
favour which can be dismissed with the sentence – “of course it is
possible but not in the least probable” the case is proved beyond
reasonable doubt.’”

–         PER U.
A. OGAKWU, J.C.A.

PROOF BEYOND REASONABLE DOUBT – MEANING OF PROOF BEYOND
REASONABLE DOUBT
Proof beyond reasonable doubt means proof of an offence with the
certainty required in a criminal trial. That certainty is that the
offence was committed, which is established by proving the
essential ingredients of the offence, and that it is the person
charged therewith that committed the offence. More often than not
in criminal trials the pith of the inquiry is not whether the
offence was committed, but whether it was the accused person that
committed the offence: Ndidi vs. The State (2007) 13
NWLR (PT 1052) 633 at 651″. PER U. A. OGAKWU,
J.C.A

GUILT OF AN ACCUSED PERSON – WAYS OF PROVING THE GUILT
OF AN ACCUSED PERSON
“There are three ways or methods by which the Prosecution may prove
the guilt of an accused person. These are:
1. By reliance on a confessional statement of an accused person
voluntarily made;
2. By circumstantial evidence; and
3. By the evidence of eyewitnesses.
See Emeka vs. The State (2001) 32 WRN 37 at 49, Okudo vs.
The State (2011) 3 NWLR (PT 1234) 209 at 236 and Olaoye vs. The
State (2018) LPELR (43601) 1 at
13″. PER U. A. OGAKWU,
J.C.A

CIRCUMSTANTIAL EVIDENCE – REQUIREMENT FOR CIRCUMSTANTIAL
EVIDENCE TO AMOUNT TO PROOF OF A CASE BEYOND REASONABLE
DOUBT
“The legal position seems to be that for circumstantial evidence to
amount to proof of a case beyond reasonable doubt, such
circumstantial evidence must prove the proposition which it seeks
to establish with the accuracy of
mathematics: Fatoyinbo vs. A-G Western Nigeria (1966)
NMLR 4 and Aigbadion vs. The State (2000) 7 NWLR (PT 666) 686. In
Nweke vs. The State (2001) LPELR (2119) 1 at 11, the apex
Court held that:

“Circumstantial evidence is very often the best. It is evidence
of surrounding circumstances which, by undesigned coincidence, is
capable of proving a proposition with the accuracy of mathematics.
It is no derogation of evidence to say that it is
circumstantial.”

See also Adie vs. The State (1980) 1-2 SC 116 and Ukorah
vs. The State (1977) 4 SC
167. PER U. A. OGAKWU,
J.C.A

CIRCUMSTANTIAL EVIDENCE – REQUIREMENT FOR CIRCUMSTANTIAL
EVIDENCE TO SECURE A CONVICTION IN A CRIMINAL TRIAL
“In order for circumstantial evidence to secure a conviction in a
criminal trial, it must be cogent, complete and unequivocal. The
evidence must be compelling, conclusive and strong and it must lead
to the irresistible conclusion that the accused person and no one
else must have committed the crime. Indeed, the facts must be
incompatible with innocence of the accused person and incapable of
explanation upon any reasonable hypothesis other than that of his
guilt: Nweke vs. The State (supra) at 18.” PER U. A.
OGAKWU, J.C.A

EVIDENCE – NATURE OF EVIDENCE A COURT IS TO ACT UPON AND
ASCRIBE PROBATIVE VALUE TO
“We will shortly interrogate, if as held by the lower Court, the
Prosecution established the guilt of the Appellant through any one
of the three ways or methods and if the lower Court arrived at the
correct decision when it held that the offences charged had been
proved beyond reasonable doubt and consequently convicted the
Appellant. It has to be borne in mind that the evidence, which a
Court is to act upon and ascribe probative value to, is legally
admissible credible evidence. See Onah vs. The State
(1985) LPELR (2668) 1 at 14-15 and Bukola vs. The State (2017)
LPELR (43747) 1 at 16. PER
U. A. OGAKWU, J.C.A

PROOFS OF EVIDENCE –WHETHER PROOFS OF EVIDENCE IS A
PIECE OF LEGAL OR JUDICIAL EVIDENCE WHICH A COURT CAN ACT
UPON
“Now, it is settled law that proofs of evidence are not pieces of
legal evidence on which a Court acts. They are mere summaries of
statements of witnesses to be called by the
Prosecution: FRN vs. Wabara (2013) LPELR (20083) 1 at
20-21, Idagu vs. The State (2018) LPELR (44343) 1 at 38, Pius vs.
The State (2012) LPELR (9304) 1 at 30-31 and Erhadavwe vs. The
State (2020) LPELR (52418) 1 at 64. So whatever
statement made by a potential witness contained in the proof of
evidence and who was not called to testify, or in the case of an
accused person any statement volunteered and which was not tendered
in evidence, is not legal evidence on which a Court can
act. PER U. A. OGAKWU, J.C.A

EXTRA-JUDICIAL STATEMENT – STATUS OF EXTRA-JUDICIAL
STATEMENT BY A POTENTIAL WITNESS WHO WAS NOT CALLED TO TESTIFY IN
COURT
“The law is settled beyond peradventure that the extra-judicial
statement made by a potential witness who was not called to testify
in Court cannot be accorded any probative or evidential value.
Recently in Afolabi vs. The State (2021) LPELR (53501)
1 at 26-27, I was privileged to state the legal
position in the following words:

“…it is abecedarian law that the extra-judicial statement of a
prosecution witness who did not testify is of no evidential
value: Ike vs. State Of Lagos (2019) LPELR (47712) 1
at 42-46, Paul vs. The State (2021) LPELR (52489) 1 at 93 and Kasa
vs. The State (1994) LPELR (1671) 1 at 18.”

The legal position remains unchanged. See
also Kadiri vs. The State Of Lagos (2019) LPELR
(47714) 1 at 41-42, Adisa vs. The State (1964) LPELR (25197) 1 at
6-7 and Ugbogbo vs. The State (2016) LPELR (42225) 1 at
18-23 PER U. A. OGAKWU,
J.C.A

HEARSAY EVIDENCE – STATUS OF HEARSAY
EVIDENCE
“It is trite law that the evidence of a police witness on what a
prospective witness told him in the course of investigation is
hearsay and inadmissible. The admissible evidence of a police
witness is the evidence of what he saw, observed and actually did
in the course of his investigation. See Ugwumba vs.
The State (1993) 5 NWLR (PT 296) 660 at 668 or (1993) 6 SCNJ (PT
II) 217 at 224-225 and Ekpo vs. The State (2001) 7 NWLR (PT 712)
292 at 304. The regurgitation by the sole prosecution
witness of what the victims of the crime told him and what was done
by other police officers, who were not called as witnesses, remains
hearsay as it is not direct oral testimony: Opolo vs.
The State (1977) 11-12 SC (Reprint) 1 at 7 and Ijioffor vs. The
State (2001) LPELR (1465) 1 at 17-19. Hearsay
evidence is inadmissible and does not command any probative
value: Utteh vs. The State (1992) LPELR (6239) 1 at
11, Arogundade vs. The State (2009) LPELR (559) 1 at 23 and FRN vs.
Usman (2012) LPELR (7818) 1 at
19-20. PER U. A. OGAKWU,
J.C.A

EVIDENCE – WHETHER THE EVIDENCE-IN-CHIEF OF A WITNESS
WHO IS NOT PRODUCED FOR CROSS EXAMINATION CAN BE ACTED UPON BY THE
COURT
“The law is that the evidence in chief of a witness who is not
produced for cross examination cannot be acted upon by the
Court: Isiaka vs. The State (2011) ALL FWLR (PT 583)
1966. It is even more so where it is an extra judicial
statement made by a person who was not called as a witness. The
veracity of the contents of Exhibits Y2 and Y3 has not been proved
since the victims of the crime were not called as witnesses. The
statements cannot be used as proof of the truth of what they
contain: Adisa vs. The State (supra), Kasa vs. The
State (supra), Ugbogbo vs. The State (supra) and Agbanimu vs. FRN
(2018) LPELR (43924) 1 at 41-43. PER U. A.
OGAKWU, J.C.A

CONFESSIONAL
STATEMENT – CONFESSIONAL
STATEMENT IS THE BEST AND SAFEST EVIDENCE ON
WHICH TO CONVICT AN ACCUSED PERSON
“It is settled law that there is no evidence stronger than a
person’s own admission or confession. The confessional statement
made by an accused person is potent evidence in the hand of a
prosecutor for proving a charge. It is the best and safest evidence
on which to convict. See Adebayo vs. A-G Ogun State
(2008) 7 NWLR (PT 1085) 201 at 221, Usman vs. The State (2011) 3
NWLR (PT 1233) 1 at 11 and Oseni vs. The State (2012) 5 NWLR (PT
1293) 351 at 387.

The free and voluntary confessional statement of an accused
person alone is enough to sustain a conviction where such voluntary
confession of guilt is direct and positive and the Court is
satisfied as to its truth. See Yesufu vs. The State
(1976) 6 SC 167 at 173, Idowu vs. The State (2000) 7 SC (PT II) 50
at 62-63, Dibie vs. The State (2007) 9 NWLR (PT 1038) 30 at 51 and
636, Kaza vs. The State (2008) 7 NWLR (PT 1085) 125 at 166, 194 and
195, Oseni vs. The State (supra) at 374 and Egboghonome vs. The
State (1993) 7 NWLR (PT 306) 385“. PER U. A.
OGAKWU, J.C.A

CONFESSIONAL STATEMENT – WHETHER A RETRACTED
CONFESSIONAL STATEMENT IS INADMISSIBLE IN EVIDENCE
“The Appellant retracted the said statement at the trial; however,
the denial by an accused person that he did not make a statement or
the retraction or resiling from the confessional statement does not
ipso facto render the statement inadmissible in evidence.
See Alarape vs. The State (2001) 14 WRN 1 at 20,
Kareem vs. FRN (2001) 49 WRN 97 at 111, Ehot vs. The State (1993) 5
SCNJ 65, Egboghonome vs. The State (supra) at 431 and Obisi vs.
Chief Of Naval Staff (2002) 19 WRN 26 at 38-39. The
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“. PER U. A.
OGAKWU, J.C.A

CONFESSIONAL STATEMENT – TESTS TO ASCERTAIN THE WEIGHT
TO BE ATTACHED TO A CONFESSIONAL STATEMENT
“But a Court cannot act on such retracted confessional statement
without first applying the test for determining the veracity or
otherwise of the confessional statement. The law enjoins the Court
to seek any other evidence however slight, or circumstances, which
make it probable that the confession is true. The tests laid down
in the case of R. vs. Sykes (1913) 1 Cr. App. R
233, has been applied in numerous cases
including Ifeanyi vs. FRN (2018) 12 NWLR (PT 1632) 164
at 191-192, Nwaebonyi vs. The State (1994) 5 NWLR (PT 343) 138,
Akinmoju vs. The State (2004) 4 SC (PT I) 64 at 81, Ubierho vs. The
State (2005) 7 MJSC 168 at 188-189 and Alarape vs. The State
(supra) to mention a few. The tests which have been
laid down to ascertain the weight to be attached to a confessional
statement is one that places a duty on the Court to examine the
statement in the light of other credible evidence before the Court
by inquiring into whether:
1. There is anything outside the confession to show that it is
true.
2. It is corroborated.
3. The facts stated in the confession are true as far as can be
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 the other facts ascertained
and proved.
– PER U. A. OGAKWU, J.C.A

EVIDENCE – NATURE OF EVIDENCE A COURT ACTS ON AND
ASCRIBE PROBATIVE VALUE TO
“It is rudimentary law that a Court is only to act upon and ascribe
probative value to legally admissible credible evidence.
See Onah vs. The State (supra) and Bukola vs. The
State (supra). It is therefore beyond confutation
that there were no facts established before the lower Court by
credible evidence, no matter how slight, on which the veracity of
the confessional statement could be determined. PER U.
A. OGAKWU, J.C.A

CIRCUMSTANTIAL EVIDENCE – STATUS OF CIRCUMSTANTIAL
EVIDENCE NOT BASED ON EVIDENCE THAT CAN BE ACCORDED PROBATIVE
VALUE
“The circumstantial evidence on record is therefore not based on
evidence that can be accorded probative value. In the absence of
any credible evidence, I do not find the circumstantial evidence
compelling. It is definitely not such that proves the proposition
which it seeks to establish with the accuracy of
mathematics: Fatoyinbo vs. A-G Western Nigeria (supra)
and Aigbadion vs. The State (supra)”. PER U. A. OGAKWU,
J.C.A

OFFENCE OF ROBBERY – EFFECT OF FAILURE TO PROVE THE
OFFENCE OF ROBBERY BEYOND REASONABLE DOUBT
“From the totality of the foregoing, it is effulgent that the
offence of robbery charged was not proved beyond reasonable doubt.
The Appellant was entitled to the full benefit of the doubt.
See Omopupa vs. The State (2007) LPELR (8571) 1 at 45
and Abdullahi vs. The State (2008) 17 NWLR (PT 1115) 203 at
224. PER U. A. OGAKWU, J.C.A

OFFENCE OF UNLAWFUL POSSESSION OF FIREARMS – INGREDIENTS
A PROSECUTION MUST ESTABLISH IN THE OFFENCE OF UNLAWFUL POSSESSION
OF FIREARMS
“The offence of unlawful possession of firearms requires the
prosecution to establish the following ingredients:
(i) That the accused person was found in possession of firearms
(ii) That the firearms were within the meaning of the Act
(iii) That the accused person had no license to possess the
firearms
See The State vs. Oladotun (2011) LPELR (3226) 1 at
19, Okashetu vs. The State (2016) LPELR (40611) 1 at 16-17, Bille
vs. The State (2016) LPELR (40832) 1 at 32 and Momodu vs. The State
(2008) ALL FWLR (PT 447) 67″. PER U. A. OGAKWU, J.C.A

OFFENCE OF UNLAWFUL POSSESSION OF FIREARMS – EFFECT OF
FAILURE TO ESTABLISH THAT AN ACCUSED PERSON IS IN POSSESSION OF
FIREARM
“On the third ingredient, even though it has been held that being
in possession of a firearm without license is a strict liability
offence and that it is for the accused person to prove that his
possession was lawful by producing his
license: Mohammed vs. The State (2019) LPELR (47044) 1
at 21-22 and Bille vs. The State (supra) at 25-26; the
Prosecution having failed to establish by credible evidence that
the Appellant was in possession of a firearm, concomitantly, the
Appellant had no evidential burden to prove that the possession
which was not proved is lawful”. PER U. A. OGAKWU,
J.C.A

OFFENCE OF CONSPIRACY – WHETHER FAILURE TO PROVE A
SUBSTANTIVE OFFENCE WOULD MAKE A CONVICTION FOR CONSPIRACY
INAPPROPRIATE
“Now, conspiracy is a separate and distinct offence independent of
the actual offence conspired to commit. Generally, therefore since
it is separate and distinct, the failure to prove a substantive
offence would not make a conviction for conspiracy inappropriate.
See Balogun vs. A-G Ogun State (2002) 2 SC (PT II) 89
or (2002) 2 SCNJ 196, Adoba vs. The State (2018) LPELR (44065) 1 at
16-17, Osetola vs. The State (2012) LPELR (9348) 1 at 27-28 and
Kayode vs. The State (2016) LPELR (40028) 1 (SC)”. PER U. A.
OGAKWU, J.C.A

OFFENCE OF CONSPIRACY – PROPER APPROACH IN CONSIDERING
AN INFORMATION CONTAINING CONSPIRACY CHARGE AND SUBSTANTIVE
CHARGES
“It has been held that the proper approach in considering an
information containing conspiracy charge and substantive charges is
to deal with the charges for the substantive offence first and then
proceed to see how far the conspiracy count has been made out in
answer to the fate of the charge of
conspiracy: Osetola vs. The State (supra) and Jimoh
vs. The State (2014) 10 NWLR (PT 1414) 105 at 135-136.
This is so because the proof of the offence of conspiracy is
generally a matter of inference and where the substantive offence
is established, it can then be inferred that there was a
conspiracy. See Oduneye vs. The State (2001) 13 WRN
88, Shodiya vs. The State (2013) LPELR (20717) 1 at 19, Erim vs.
The State (1994) 5 NWLR (PT 346) 522 at 538 and Bouwor vs. The
State (2016) LPELR (26034) 1 at 17. PER U. A. OGAKWU,
J.C.A

OFFENCE OF CONSPIRACY – WHETHER AN ACCUSED PERSON WHO
HAS BEEN ACQUITTED IN RESPECT OF THE SUBSTANTIVE OFFENCE MUST ALSO
BE ACQUITTED OF THE OFFENCE OF CONSPIRACY
“I will like to state that it is not in every case that an accused
person who has been acquitted in respect of the substantive offence
must be acquitted of the offence of conspiracy…
It is not in dispute that there was no direct evidence of acts of
conspiracy against the appellants. Admittedly, more often than not
it does not require direct evidence to establish conspiracy. The
appellants were however acquitted of the charge of stealing… The
offence of conspiracy cannot therefore be deduced from either of
the alleged substantive offences, which were not proved. In the
circumstances such as this it requires very strong evidence, if not
direct evidence, which will leave no one in doubt that the
appellants indeed conspired …”
The decision in Abioye vs. The State
(supra) was followed and applied by the apex Court
per Onu, JSC in Amadi vs. The State (1993) 3 NWLR (PT
314) 644 at 677. Forgive me for being repetitive, but let
me restate that there was no independent direct evidence of acts of
conspiracy against the Appellant. It was based on the same evidence
on which the lower Court convicted for armed robbery that it
inferred and convicted for conspiracy to commit armed robbery. In
such circumstances, if the conviction for the substantive offence
is set aside on appeal, the conviction for the conspiracy charge
will equally be set aside: Njovens vs. The State
(1973) 5 SC 17, Amachree vs. Nigerian Army (2003) 3 NWLR (PT 807)
256 at 281, Usufu vs. The State (2006) LPELR (11790) 1 at 33-35,
Enahoro vs. The State (1969) NSCC 98, Oseni vs. The State (2017)
LPELR (42546) 1 at 60-61, Idowu vs. The State (2011) LPELR (3597) 1
at 83-84 and Balogun vs. The State (2018) LPELR (44215) 1 at
4-5.
In Temitope vs. The State (2010) LPELR (3752) 1 at 24,
Iyizoba, JCA, stated the legal position in pungent terms
as follows:

“The law is that where the prosecution did not lead evidence on
conspiracy but relies on the commission of the substantive offence
to infer conspiracy, the conviction for the conspiracy charge will
fail if the conviction for the substantive offence is set aside on
appeal… It is consequently advisable for the prosecution in cases
such as this, to lead evidence of conspiracy separately so that if
a conviction and sentence is secured in respect of that count, it
could be saved in the event that the substantive charge suffers the
same fate as the instant appeal.”

See also FRN vs. Usman (2018) LPELR (43894) 1 at
23-24 and Lateef vs. FRN (2010) LPELR (9144) 1 at 22-23. PER
U.A.OGAKWU, J.C.A
CRIMINAL LAW AND PROCEDURE, LAW OF EVIDENCE, PRACTICE AND
PROCEDURE
CRIMINAL TRIAL – POSITION OF THE LAW ON THE FAILURE OF THE
PROSECUTION TO ESTABLISH THE GUILT OF AN ACCUSED PERSON BEYOND
REASONABLE DOUBT
“The law is firmly settled that it is better for nine guilty
persons to escape than for one innocent person to be made to
suffer. Put differently, it is better to acquit nine guilty men
than to convict one innocent man: Ukorah vs. The State
(supra) at 177, Olekaibe vs. The State (1990) 1 NWLR (PT 129) 632
at 644, Shehu vs. The State (2010) LPELR (3041) 1 at 10, Omoruyi
vs. The State (2016) LPELR (40133) 1 at 60 and Musa vs. The State
Of Lagos (2018) LPELR (46037) 1 at 29. PER
U.A.OGAKWU, J.C.A

CROSS-EXAMINATION – RIGHT OF PARTIES TO CROSS-EXAMINE
WITNESSES
“I wish to further emphasize that cross-examination is an
inviolable right available to parties in litigation which should
not be taken away from them. See Ogunsanya Vs. State
(2011) 12 NWLR (pt. 1261) 401, Ogolo Vs. Fubara (2003) 1 1 NWLR
(pt. 831) 231, and Ayoade Vs. State (2018) LPELR – 44517
(CA). PER F. A. OJO, J.C.A.
S. 36 (6) (d) of the 1999 Constitution of  the Federal
Republic of Nigeria (as amended) provides that an accused person
shall be entitled to examine in person or by his legal practitioner
the witnesses called by the prosecution before any Court or
tribunal and obtain the attendance and carry out the examination of
witnesses to testify on his behalf before the Court or tribunal on
the same conditions as those of the witnesses called by the
prosecution.

It follows therefore that the prosecution should not be allowed
to rely on evidence, the veracity of which the accused cannot test
under cross-examination. PER F. A. OJO,
J.C.A.

Statutes Referred To:
Constitution of the Federal Republic of Nigeria 1999 (as
amended)
Evidence Act, 2011
Firearms Act

By Legalpedia

ADEDAYO OLADELE v. STATE

suit
no: CA/IB/496C/2017

Legalpedia Electronic Citation: (2021)
Legalpedia (CA) 14181

Areas Of Law:  

Appeal, Court, Criminal Law And Procedure, Law Of Evidence,
Practice And Procedure, Words And Phrases

Summary Of Facts:

The Appellant herein, Adedayo Oladele, was the 2nd accused
person and was charged before the High Court of Ogun State on five
counts for the offences of conspiracy commit a felony to wit: armed
robbery contrary to Section 6(b) and Punishable under Section
1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap.
R.11, Laws of the Federation of Nigeria, 2004; armed robbery
contrary to Section 1(2)(a) of the Robbery and Firearms (Special
Provisions) Act, Cap. R11, Laws of the Federation of Nigeria, 2004;
and unlawful possession of firearms contrary to Section 4 and
Punishable under Section 27(b)(1) of the Firearms Act, (Cap.F.28)
Laws of the Federation of Nigeria, 2004.

It was the Prosecution’s case that at about 2.00am on 11th
November, 2010 there was an armed robbery incident at No. 10
Owakumudy Street, Ijebu Ode and the victims were robbed of their
money and other valuables at gunpoint.

At daybreak, the victims heard that the Police arrested some
persons with some items, which they could not account for. They
therefore went to the Police Station and identified the Appellant
and his co-accused as among the robbers who robbed them.

The Appellant denied the offence charged and retracted the
confessional statement he made. In proof of its case, the
Prosecution called one witness, the Investigating Police Officer
(IPO), who investigated the matter at the State CID Eleweran,
Abeokuta, after the matter had been transferred there from the
Police Station where the Appellant was arrested.

The Prosecution tendered several exhibits in evidence, including
the extra-judicial statements of the victims of the robbery, who
were not called as witnesses. The Appellant testified in his
defence and did not call any other witness. At the conclusion of
trial, the lower court convicted the Appellant as charged and
sentenced him to death.

The Appellant being dissatisfied with the judgment appealed
against the same by Notice of Appeal.

HELD:

Appeal Allowed

ISSUES FOR DETERMINATION

Nil

RATIONES

PROOF BEYOND REASONABLE DOUBT – NATURE OF THE
REQUIREMENT OF PROOF BEYOND REASONABLE DOUBT
“Our adversary criminal justice system is accusatorial. This is in
tune with Section 36 (5) of the Constitution of the Federal
Republic of Nigeria 1999 (as amended), which provides that every
person charged with a criminal offence shall be presumed innocent
until he is proved guilty. The necessary corollary of this
presumption of innocence is that the Prosecution has the onus of
proving the commission of the crime charged beyond reasonable doubt
as stipulated in Section 135 of the Evidence Act, 2011. Proof
beyond reasonable doubt does not mean that the Prosecution must
prove the case with mathematical exactitude: Adeoye
vs. The State (2011) LPELR (9091) 1. It does not mean
proof beyond all shadow of doubt; so where the evidence adduced is
strong as to leave only a remote probability in favour of the
accused person, then the case is proved beyond reasonable doubt. In
the words of Oputa, JSC (of most blessed memory)
in Bakare vs. The State (1987) 3 S.C. 1 or (1987)
LPELR (714) 1 at 12 – 13: “Proof beyond reasonable
doubt stems out of the compelling presumption of innocence inherent
in our adversary system of criminal justice. To displace this
presumption, the evidence of the prosecution must prove beyond
reasonable doubt, not beyond the shadow of any doubt that the
person accused is guilty of the offence charged. Absolute certainty
is impossible in any human adventure including the administration
of criminal justice. Proof beyond reasonable doubt means just what
it says. It does not admit of plausible and fanciful possibilities
but it does admit of a high degree of cogency, consistent with an
equally high degree of probability. As Denning, J. (as he then was)
observed in Miller v. Minister of Pensions (1947) 2
ALL E.R. 373: –

‘The law would fail to protect the community if it admitted
fanciful possibilities to deflect the course of justice. If the
evidence is so strong as to leave only a remote possibility in his
favour which can be dismissed with the sentence – “of course it is
possible but not in the least probable” the case is proved beyond
reasonable doubt.’”

–         PER U.
A. OGAKWU, J.C.A.

PROOF BEYOND REASONABLE DOUBT – MEANING OF PROOF BEYOND
REASONABLE DOUBT
Proof beyond reasonable doubt means proof of an offence with the
certainty required in a criminal trial. That certainty is that the
offence was committed, which is established by proving the
essential ingredients of the offence, and that it is the person
charged therewith that committed the offence. More often than not
in criminal trials the pith of the inquiry is not whether the
offence was committed, but whether it was the accused person that
committed the offence: Ndidi vs. The State (2007) 13
NWLR (PT 1052) 633 at 651″. PER U. A. OGAKWU,
J.C.A

GUILT OF AN ACCUSED PERSON – WAYS OF PROVING THE GUILT
OF AN ACCUSED PERSON
“There are three ways or methods by which the Prosecution may prove
the guilt of an accused person. These are:
1. By reliance on a confessional statement of an accused person
voluntarily made;
2. By circumstantial evidence; and
3. By the evidence of eyewitnesses.
See Emeka vs. The State (2001) 32 WRN 37 at 49, Okudo vs.
The State (2011) 3 NWLR (PT 1234) 209 at 236 and Olaoye vs. The
State (2018) LPELR (43601) 1 at
13″. PER U. A. OGAKWU,
J.C.A

CIRCUMSTANTIAL EVIDENCE – REQUIREMENT FOR CIRCUMSTANTIAL
EVIDENCE TO AMOUNT TO PROOF OF A CASE BEYOND REASONABLE
DOUBT
“The legal position seems to be that for circumstantial evidence to
amount to proof of a case beyond reasonable doubt, such
circumstantial evidence must prove the proposition which it seeks
to establish with the accuracy of
mathematics: Fatoyinbo vs. A-G Western Nigeria (1966)
NMLR 4 and Aigbadion vs. The State (2000) 7 NWLR (PT 666) 686. In
Nweke vs. The State (2001) LPELR (2119) 1 at 11, the apex
Court held that:

“Circumstantial evidence is very often the best. It is evidence
of surrounding circumstances which, by undesigned coincidence, is
capable of proving a proposition with the accuracy of mathematics.
It is no derogation of evidence to say that it is
circumstantial.”

See also Adie vs. The State (1980) 1-2 SC 116 and Ukorah
vs. The State (1977) 4 SC
167. PER U. A. OGAKWU,
J.C.A

CIRCUMSTANTIAL EVIDENCE – REQUIREMENT FOR CIRCUMSTANTIAL
EVIDENCE TO SECURE A CONVICTION IN A CRIMINAL TRIAL
“In order for circumstantial evidence to secure a conviction in a
criminal trial, it must be cogent, complete and unequivocal. The
evidence must be compelling, conclusive and strong and it must lead
to the irresistible conclusion that the accused person and no one
else must have committed the crime. Indeed, the facts must be
incompatible with innocence of the accused person and incapable of
explanation upon any reasonable hypothesis other than that of his
guilt: Nweke vs. The State (supra) at 18.” PER U. A.
OGAKWU, J.C.A

EVIDENCE – NATURE OF EVIDENCE A COURT IS TO ACT UPON AND
ASCRIBE PROBATIVE VALUE TO
“We will shortly interrogate, if as held by the lower Court, the
Prosecution established the guilt of the Appellant through any one
of the three ways or methods and if the lower Court arrived at the
correct decision when it held that the offences charged had been
proved beyond reasonable doubt and consequently convicted the
Appellant. It has to be borne in mind that the evidence, which a
Court is to act upon and ascribe probative value to, is legally
admissible credible evidence. See Onah vs. The State
(1985) LPELR (2668) 1 at 14-15 and Bukola vs. The State (2017)
LPELR (43747) 1 at 16. PER
U. A. OGAKWU, J.C.A

PROOFS OF EVIDENCE –WHETHER PROOFS OF EVIDENCE IS A
PIECE OF LEGAL OR JUDICIAL EVIDENCE WHICH A COURT CAN ACT
UPON
“Now, it is settled law that proofs of evidence are not pieces of
legal evidence on which a Court acts. They are mere summaries of
statements of witnesses to be called by the
Prosecution: FRN vs. Wabara (2013) LPELR (20083) 1 at
20-21, Idagu vs. The State (2018) LPELR (44343) 1 at 38, Pius vs.
The State (2012) LPELR (9304) 1 at 30-31 and Erhadavwe vs. The
State (2020) LPELR (52418) 1 at 64. So whatever
statement made by a potential witness contained in the proof of
evidence and who was not called to testify, or in the case of an
accused person any statement volunteered and which was not tendered
in evidence, is not legal evidence on which a Court can
act. PER U. A. OGAKWU, J.C.A

EXTRA-JUDICIAL STATEMENT – STATUS OF EXTRA-JUDICIAL
STATEMENT BY A POTENTIAL WITNESS WHO WAS NOT CALLED TO TESTIFY IN
COURT
“The law is settled beyond peradventure that the extra-judicial
statement made by a potential witness who was not called to testify
in Court cannot be accorded any probative or evidential value.
Recently in Afolabi vs. The State (2021) LPELR (53501)
1 at 26-27, I was privileged to state the legal
position in the following words:

“…it is abecedarian law that the extra-judicial statement of a
prosecution witness who did not testify is of no evidential
value: Ike vs. State Of Lagos (2019) LPELR (47712) 1
at 42-46, Paul vs. The State (2021) LPELR (52489) 1 at 93 and Kasa
vs. The State (1994) LPELR (1671) 1 at 18.”

The legal position remains unchanged. See
also Kadiri vs. The State Of Lagos (2019) LPELR
(47714) 1 at 41-42, Adisa vs. The State (1964) LPELR (25197) 1 at
6-7 and Ugbogbo vs. The State (2016) LPELR (42225) 1 at
18-23 PER U. A. OGAKWU,
J.C.A

HEARSAY EVIDENCE – STATUS OF HEARSAY
EVIDENCE
“It is trite law that the evidence of a police witness on what a
prospective witness told him in the course of investigation is
hearsay and inadmissible. The admissible evidence of a police
witness is the evidence of what he saw, observed and actually did
in the course of his investigation. See Ugwumba vs.
The State (1993) 5 NWLR (PT 296) 660 at 668 or (1993) 6 SCNJ (PT
II) 217 at 224-225 and Ekpo vs. The State (2001) 7 NWLR (PT 712)
292 at 304. The regurgitation by the sole prosecution
witness of what the victims of the crime told him and what was done
by other police officers, who were not called as witnesses, remains
hearsay as it is not direct oral testimony: Opolo vs.
The State (1977) 11-12 SC (Reprint) 1 at 7 and Ijioffor vs. The
State (2001) LPELR (1465) 1 at 17-19. Hearsay
evidence is inadmissible and does not command any probative
value: Utteh vs. The State (1992) LPELR (6239) 1 at
11, Arogundade vs. The State (2009) LPELR (559) 1 at 23 and FRN vs.
Usman (2012) LPELR (7818) 1 at
19-20. PER U. A. OGAKWU,
J.C.A

EVIDENCE – WHETHER THE EVIDENCE-IN-CHIEF OF A WITNESS
WHO IS NOT PRODUCED FOR CROSS EXAMINATION CAN BE ACTED UPON BY THE
COURT
“The law is that the evidence in chief of a witness who is not
produced for cross examination cannot be acted upon by the
Court: Isiaka vs. The State (2011) ALL FWLR (PT 583)
1966. It is even more so where it is an extra judicial
statement made by a person who was not called as a witness. The
veracity of the contents of Exhibits Y2 and Y3 has not been proved
since the victims of the crime were not called as witnesses. The
statements cannot be used as proof of the truth of what they
contain: Adisa vs. The State (supra), Kasa vs. The
State (supra), Ugbogbo vs. The State (supra) and Agbanimu vs. FRN
(2018) LPELR (43924) 1 at 41-43. PER U. A.
OGAKWU, J.C.A

CONFESSIONAL
STATEMENT – CONFESSIONAL
STATEMENT IS THE BEST AND SAFEST EVIDENCE ON
WHICH TO CONVICT AN ACCUSED PERSON
“It is settled law that there is no evidence stronger than a
person’s own admission or confession. The confessional statement
made by an accused person is potent evidence in the hand of a
prosecutor for proving a charge. It is the best and safest evidence
on which to convict. See Adebayo vs. A-G Ogun State
(2008) 7 NWLR (PT 1085) 201 at 221, Usman vs. The State (2011) 3
NWLR (PT 1233) 1 at 11 and Oseni vs. The State (2012) 5 NWLR (PT
1293) 351 at 387.

The free and voluntary confessional statement of an accused
person alone is enough to sustain a conviction where such voluntary
confession of guilt is direct and positive and the Court is
satisfied as to its truth. See Yesufu vs. The State
(1976) 6 SC 167 at 173, Idowu vs. The State (2000) 7 SC (PT II) 50
at 62-63, Dibie vs. The State (2007) 9 NWLR (PT 1038) 30 at 51 and
636, Kaza vs. The State (2008) 7 NWLR (PT 1085) 125 at 166, 194 and
195, Oseni vs. The State (supra) at 374 and Egboghonome vs. The
State (1993) 7 NWLR (PT 306) 385“. PER U. A.
OGAKWU, J.C.A

CONFESSIONAL STATEMENT – WHETHER A RETRACTED
CONFESSIONAL STATEMENT IS INADMISSIBLE IN EVIDENCE
“The Appellant retracted the said statement at the trial; however,
the denial by an accused person that he did not make a statement or
the retraction or resiling from the confessional statement does not
ipso facto render the statement inadmissible in evidence.
See Alarape vs. The State (2001) 14 WRN 1 at 20,
Kareem vs. FRN (2001) 49 WRN 97 at 111, Ehot vs. The State (1993) 5
SCNJ 65, Egboghonome vs. The State (supra) at 431 and Obisi vs.
Chief Of Naval Staff (2002) 19 WRN 26 at 38-39. The
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“. PER U. A.
OGAKWU, J.C.A

CONFESSIONAL STATEMENT – TESTS TO ASCERTAIN THE WEIGHT
TO BE ATTACHED TO A CONFESSIONAL STATEMENT
“But a Court cannot act on such retracted confessional statement
without first applying the test for determining the veracity or
otherwise of the confessional statement. The law enjoins the Court
to seek any other evidence however slight, or circumstances, which
make it probable that the confession is true. The tests laid down
in the case of R. vs. Sykes (1913) 1 Cr. App. R
233, has been applied in numerous cases
including Ifeanyi vs. FRN (2018) 12 NWLR (PT 1632) 164
at 191-192, Nwaebonyi vs. The State (1994) 5 NWLR (PT 343) 138,
Akinmoju vs. The State (2004) 4 SC (PT I) 64 at 81, Ubierho vs. The
State (2005) 7 MJSC 168 at 188-189 and Alarape vs. The State
(supra) to mention a few. The tests which have been
laid down to ascertain the weight to be attached to a confessional
statement is one that places a duty on the Court to examine the
statement in the light of other credible evidence before the Court
by inquiring into whether:
1. There is anything outside the confession to show that it is
true.
2. It is corroborated.
3. The facts stated in the confession are true as far as can be
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 the other facts ascertained
and proved.
– PER U. A. OGAKWU, J.C.A

EVIDENCE – NATURE OF EVIDENCE A COURT ACTS ON AND
ASCRIBE PROBATIVE VALUE TO
“It is rudimentary law that a Court is only to act upon and ascribe
probative value to legally admissible credible evidence.
See Onah vs. The State (supra) and Bukola vs. The
State (supra). It is therefore beyond confutation
that there were no facts established before the lower Court by
credible evidence, no matter how slight, on which the veracity of
the confessional statement could be determined. PER U.
A. OGAKWU, J.C.A

CIRCUMSTANTIAL EVIDENCE – STATUS OF CIRCUMSTANTIAL
EVIDENCE NOT BASED ON EVIDENCE THAT CAN BE ACCORDED PROBATIVE
VALUE
“The circumstantial evidence on record is therefore not based on
evidence that can be accorded probative value. In the absence of
any credible evidence, I do not find the circumstantial evidence
compelling. It is definitely not such that proves the proposition
which it seeks to establish with the accuracy of
mathematics: Fatoyinbo vs. A-G Western Nigeria (supra)
and Aigbadion vs. The State (supra)”. PER U. A. OGAKWU,
J.C.A

OFFENCE OF ROBBERY – EFFECT OF FAILURE TO PROVE THE
OFFENCE OF ROBBERY BEYOND REASONABLE DOUBT
“From the totality of the foregoing, it is effulgent that the
offence of robbery charged was not proved beyond reasonable doubt.
The Appellant was entitled to the full benefit of the doubt.
See Omopupa vs. The State (2007) LPELR (8571) 1 at 45
and Abdullahi vs. The State (2008) 17 NWLR (PT 1115) 203 at
224. PER U. A. OGAKWU, J.C.A

OFFENCE OF UNLAWFUL POSSESSION OF FIREARMS – INGREDIENTS
A PROSECUTION MUST ESTABLISH IN THE OFFENCE OF UNLAWFUL POSSESSION
OF FIREARMS
“The offence of unlawful possession of firearms requires the
prosecution to establish the following ingredients:
(i) That the accused person was found in possession of firearms
(ii) That the firearms were within the meaning of the Act
(iii) That the accused person had no license to possess the
firearms
See The State vs. Oladotun (2011) LPELR (3226) 1 at
19, Okashetu vs. The State (2016) LPELR (40611) 1 at 16-17, Bille
vs. The State (2016) LPELR (40832) 1 at 32 and Momodu vs. The State
(2008) ALL FWLR (PT 447) 67″. PER U. A. OGAKWU, J.C.A

OFFENCE OF UNLAWFUL POSSESSION OF FIREARMS – EFFECT OF
FAILURE TO ESTABLISH THAT AN ACCUSED PERSON IS IN POSSESSION OF
FIREARM
“On the third ingredient, even though it has been held that being
in possession of a firearm without license is a strict liability
offence and that it is for the accused person to prove that his
possession was lawful by producing his
license: Mohammed vs. The State (2019) LPELR (47044) 1
at 21-22 and Bille vs. The State (supra) at 25-26; the
Prosecution having failed to establish by credible evidence that
the Appellant was in possession of a firearm, concomitantly, the
Appellant had no evidential burden to prove that the possession
which was not proved is lawful”. PER U. A. OGAKWU,
J.C.A

OFFENCE OF CONSPIRACY – WHETHER FAILURE TO PROVE A
SUBSTANTIVE OFFENCE WOULD MAKE A CONVICTION FOR CONSPIRACY
INAPPROPRIATE
“Now, conspiracy is a separate and distinct offence independent of
the actual offence conspired to commit. Generally, therefore since
it is separate and distinct, the failure to prove a substantive
offence would not make a conviction for conspiracy inappropriate.
See Balogun vs. A-G Ogun State (2002) 2 SC (PT II) 89
or (2002) 2 SCNJ 196, Adoba vs. The State (2018) LPELR (44065) 1 at
16-17, Osetola vs. The State (2012) LPELR (9348) 1 at 27-28 and
Kayode vs. The State (2016) LPELR (40028) 1 (SC)”. PER U. A.
OGAKWU, J.C.A

OFFENCE OF CONSPIRACY – PROPER APPROACH IN CONSIDERING
AN INFORMATION CONTAINING CONSPIRACY CHARGE AND SUBSTANTIVE
CHARGES
“It has been held that the proper approach in considering an
information containing conspiracy charge and substantive charges is
to deal with the charges for the substantive offence first and then
proceed to see how far the conspiracy count has been made out in
answer to the fate of the charge of
conspiracy: Osetola vs. The State (supra) and Jimoh
vs. The State (2014) 10 NWLR (PT 1414) 105 at 135-136.
This is so because the proof of the offence of conspiracy is
generally a matter of inference and where the substantive offence
is established, it can then be inferred that there was a
conspiracy. See Oduneye vs. The State (2001) 13 WRN
88, Shodiya vs. The State (2013) LPELR (20717) 1 at 19, Erim vs.
The State (1994) 5 NWLR (PT 346) 522 at 538 and Bouwor vs. The
State (2016) LPELR (26034) 1 at 17. PER U. A. OGAKWU,
J.C.A

OFFENCE OF CONSPIRACY – WHETHER AN ACCUSED PERSON WHO
HAS BEEN ACQUITTED IN RESPECT OF THE SUBSTANTIVE OFFENCE MUST ALSO
BE ACQUITTED OF THE OFFENCE OF CONSPIRACY
“I will like to state that it is not in every case that an accused
person who has been acquitted in respect of the substantive offence
must be acquitted of the offence of conspiracy…
It is not in dispute that there was no direct evidence of acts of
conspiracy against the appellants. Admittedly, more often than not
it does not require direct evidence to establish conspiracy. The
appellants were however acquitted of the charge of stealing… The
offence of conspiracy cannot therefore be deduced from either of
the alleged substantive offences, which were not proved. In the
circumstances such as this it requires very strong evidence, if not
direct evidence, which will leave no one in doubt that the
appellants indeed conspired …”
The decision in Abioye vs. The State
(supra) was followed and applied by the apex Court
per Onu, JSC in Amadi vs. The State (1993) 3 NWLR (PT
314) 644 at 677. Forgive me for being repetitive, but let
me restate that there was no independent direct evidence of acts of
conspiracy against the Appellant. It was based on the same evidence
on which the lower Court convicted for armed robbery that it
inferred and convicted for conspiracy to commit armed robbery. In
such circumstances, if the conviction for the substantive offence
is set aside on appeal, the conviction for the conspiracy charge
will equally be set aside: Njovens vs. The State
(1973) 5 SC 17, Amachree vs. Nigerian Army (2003) 3 NWLR (PT 807)
256 at 281, Usufu vs. The State (2006) LPELR (11790) 1 at 33-35,
Enahoro vs. The State (1969) NSCC 98, Oseni vs. The State (2017)
LPELR (42546) 1 at 60-61, Idowu vs. The State (2011) LPELR (3597) 1
at 83-84 and Balogun vs. The State (2018) LPELR (44215) 1 at
4-5.
In Temitope vs. The State (2010) LPELR (3752) 1 at 24,
Iyizoba, JCA, stated the legal position in pungent terms
as follows:

“The law is that where the prosecution did not lead evidence on
conspiracy but relies on the commission of the substantive offence
to infer conspiracy, the conviction for the conspiracy charge will
fail if the conviction for the substantive offence is set aside on
appeal… It is consequently advisable for the prosecution in cases
such as this, to lead evidence of conspiracy separately so that if
a conviction and sentence is secured in respect of that count, it
could be saved in the event that the substantive charge suffers the
same fate as the instant appeal.”

See also FRN vs. Usman (2018) LPELR (43894) 1 at
23-24 and Lateef vs. FRN (2010) LPELR (9144) 1 at 22-23. PER
U.A.OGAKWU, J.C.A
CRIMINAL LAW AND PROCEDURE, LAW OF EVIDENCE, PRACTICE AND
PROCEDURE
CRIMINAL TRIAL – POSITION OF THE LAW ON THE FAILURE OF THE
PROSECUTION TO ESTABLISH THE GUILT OF AN ACCUSED PERSON BEYOND
REASONABLE DOUBT
“The law is firmly settled that it is better for nine guilty
persons to escape than for one innocent person to be made to
suffer. Put differently, it is better to acquit nine guilty men
than to convict one innocent man: Ukorah vs. The State
(supra) at 177, Olekaibe vs. The State (1990) 1 NWLR (PT 129) 632
at 644, Shehu vs. The State (2010) LPELR (3041) 1 at 10, Omoruyi
vs. The State (2016) LPELR (40133) 1 at 60 and Musa vs. The State
Of Lagos (2018) LPELR (46037) 1 at 29. PER
U.A.OGAKWU, J.C.A

CROSS-EXAMINATION – RIGHT OF PARTIES TO CROSS-EXAMINE
WITNESSES
“I wish to further emphasize that cross-examination is an
inviolable right available to parties in litigation which should
not be taken away from them. See Ogunsanya Vs. State
(2011) 12 NWLR (pt. 1261) 401, Ogolo Vs. Fubara (2003) 1 1 NWLR
(pt. 831) 231, and Ayoade Vs. State (2018) LPELR – 44517
(CA). PER F. A. OJO, J.C.A.
S. 36 (6) (d) of the 1999 Constitution of  the Federal
Republic of Nigeria (as amended) provides that an accused person
shall be entitled to examine in person or by his legal practitioner
the witnesses called by the prosecution before any Court or
tribunal and obtain the attendance and carry out the examination of
witnesses to testify on his behalf before the Court or tribunal on
the same conditions as those of the witnesses called by the
prosecution.

It follows therefore that the prosecution should not be allowed
to rely on evidence, the veracity of which the accused cannot test
under cross-examination. PER F. A. OJO,
J.C.A.

Statutes Referred To:
Constitution of the Federal Republic of Nigeria 1999 (as
amended)
Evidence Act, 2011
Firearms Act