➥ CASE SUMMARY OF:
Makanjuola v. State (2021)
by PipAr Chima
Supreme Court – SC.119C/2019
➥ JUDGEMENT DELIVERED ON:
Friday, June 04, 2021
➥ AREA(S) OF LAW
➥ NOTABLE DICTA
⦿ WHAT IS CHARACTER OF A PERSON?
Invariably, the noun ‘Character’ means the qualities that aggregate to make an individual human being distinctive from others, most especially in regard to morality and behaviour. In the case of FRANKLIN VS. LYNAUGH (1988) 487 USA 164, 174, 108 SC 1 2320 @ 2327, the US Supreme Court aptly defined character as the disposition, reputation, or collective traits of a person as they might be gathered from close observation of that person’s pattern of behaviour. Thus, a ‘good character’ invariably denotes an individual person’s tendency to engage in lawful and moral (virtuous) behaviours. Contrariwise, the term ‘bad character’ denotes an individual person’s propensity for, or tendency toward, unlawful or immoral behaviour. – Saulawa, JSC. Makanjuola v. State (2021)
⦿ WHEN BAD CHARACTER OF A DEFENDANT BECOMES ADMISSIBLE
The position of the law is very much unequivocal on the issue. As copiously alluded heretofore, evidence of the fact that a defendant is of bad character is generally inadmissible in a criminal proceeding. However, there are some exceptions to this general principle. The fact that a defendant is of bad character becomes admissible: (a) When the bad character of the defendant is a fact in issue; or (b) when the defendant (unwittingly) has given evidence of good character thereof. A defendant may equally be asked questions to show that he is of bad character in the circumstances mentioned in paragraph (c) of the proviso to Section 180 of the Evidence Act. The hallmark of these exceptions is that whenever evidence of bad character is admissible, evidence of previous conviction becomes equally admissible. – Saulawa, JSC. Makanjuola v. State (2021)
⦿ AN OFFENCE MUST BE PROVED BEYOND REASONABLE DOUBT
A fortiori, by virtue of Section 138(1) of the Evidence Act, if the commission of an offence by a party is directly in issue in any criminal or civil proceeding, it must be proved beyond reasonable doubt. – Saulawa, JSC. Makanjuola v. State (2021)
⦿ INGREDIENTS TO PROVE ARMED ROBBERY
For a conviction for the charge of armed robbery to creditably be sustained, the prosecution is equally required to prove beyond reasonable doubt the following ingredients: (i) That there was a robbery or series of robberies; (ii) That the robbery was armed robbery; and (iii) That the Defendant participated in the said armed robbery. – Saulawa, JSC. Makanjuola v. State (2021)
⦿ WHAT IS A FIREARM
Invariably, the term “firearm” denotes a weapon that expels a projectile (such as a bullet or pellets by the combination of gun powder or other explosive). Also termed gun. See BLACK’S LAW DICTIONARY 11th edition 2019 @ 778. – Saulawa, JSC. Makanjuola v. State (2021)
⦿ THE DEFENCE OF ALIBI
The term ‘alibi’ is derivatively Latin, denoting ‘elsewhere’. It is essentially a defense predicated upon the physical impossibility of a defendant’s guilt by placing the defendant in (an entirely) different location other than the scene of the crime at the relevant point in time. Alibi invariably denotes the quality, state or condition of having been elsewhere at the material time an offence was committed. – Saulawa, JSC. Makanjuola v. State (2021)
⦿ AN APPEAL COURT CAN FORMULATE AN ISSUE – RELATEABLE GO THE GROUND OF APPEAL
From the furore of the complaints of the appellant which seem more academic than based on legal principles, it needs be restated that the Court of Appeal has a wide unfettered discretionary power to formulate its own issues in the interest of Justice, provided they relate to the grounds of appeal and flow therefrom. Stated in other words, an Appeal Court can formulate its own issues where in its opinion, the issues formulated by the parties would not justify or equitably dispose off the appeal before it. Further still, an Appeal Court can also with in the same manner, prefer or adopt the issue or issues formulated by any of the parties to an appeal where same would enable it do justice to the appeal. – M. Peter-Odili, JSC. Makanjuola v. State (2021)
⦿ WHAT ALIBI MEANS?
Alibi means the fact or state of having been elsewhere when an offence was committed. It also means, I was not present when what is complained about happened. – M. Peter-Odili, JSC. Makanjuola v. State (2021)
⦿ AN ERROR THAT DID NOT MISLEAD IS NOT FATAL
This Court has held in a number of decided cases that a defect, error or omission that does not prejudice the defence would not lead to the quashing of a conviction on a charge for a known offence. The emphasis is not on whether or not there were defects, errors or omissions in the charge, but on whether or not those defects, errors or omissions could and did infact mislead the defence. – J.I Okoro, JSC. Makanjuola v. State (2021)
➥ LEAD JUDGEMENT DELIVERED BY:
Ibrahim Mohammed Musa Saulawa, J.S.C.
⦿ FOR THE APPELLANT
– M. I. Hanafi Esq.
⦿ FOR THE RESPONDENT
– Jimoh Adebimpe Mumini Esq.
➥ CASE HISTORY
The case of the prosecution is that on the 5th of March 2014, the Appellant together with three other persons at about 11.30pm at Awolowo Road, Tanke Junction, Ilorin, Kwara State flagged down their victim, one Kamaldeen Shittu with a torch light. At the material time, the said Kamaldeen Shittu was driving a Kia Rio with registration number FFA 626 AA. Thinking that he was coming across policemen on duty Kamaldeen stopped the vehicle. As soon as he stopped the vehicle, one of the Defendants pointed a gun on his head and the other slapped him. They requested for his car key which he surrendered to them at gun point. The complainant was sitting in the middle of the road when some policemen on patrol saw him and enquired from him why he was on the road sitting at that time of the night. He told them the story of how his car was snatched from him by the gang of robbers. The policemen sent a radio message to their office and other officers on patrol were informed. Barely 45 minutes after the incident, some officers on patrol duty saw a Kia Rio at the Sawmill Garage packed with four men inside the vehicle. They accosted them and in the course of which one of them pulled a trigger but he was shot by one of the officers. The policemen arrested all of them and they were charged to the Court. The Appellant herein was initially charged as the 3rd Defendant but ended up as the 2nd Defendant upon the withdrawal of the charge against the initial 2nd Defendant who was confirmed insane and unable to stand his trial.
According to the Appellant, he is a DJ at Bovita Hotels and a wrist watch repairer. He was on an Okada (bike) going to Bovina hotels when he was arrested on the Okada (commercial motorbike). He was almost at the hotel when the police stopped them and asked them to come down. The police seized the bike and put the Appellant in the police vehicle and drove him to the station. On the second day, the police asked if he had relation in Ilorin and he said yes. They gave him his phone and asked him to call his relatives to come for his bail. On the arrival of his sister at the station, the police demanded for the sum of N100,000 and informed her that if she refused to pay they would charge him to Court. The sister could not pay and hence the charge. In effect, the Appellant denied knowing anything about the robbery incident and relied on a case of extortion against the police.
The present appeal has emanated from the judgment of the Court of Appeal, Ilorin Judicial Division, delivered on May 18, 2018 in appeal NG. CA/IL/C.19/2017. By the judgment in question, the Court below, Coram C. N. Uwa, K. A. Barka, and B. M. Ugo, JJCA affirmed the conviction and sentence (to death) of the Appellant by the trial High Court of Kwara State.
Dissatisfied with the said conviction and sentence passed thereupon, the Appellant appealed to the Court below.
➥ ISSUE(S) & RESOLUTION
I. Whether the Court of Appeal rightly affirmed the conviction of the Appellant in view of the admission of the evidence tending to show the bad character of the Appellant at the trial.
RULING: IN RESPONDENT’S FAVOUR.
I.A. The law is equally well settled that where inadmissible evidence is admitted, it behooves the trial Court to expunge such evidence from the record and consider if there is any viable evidence upon which the charge could be sustained. In essence, the wrongful admission of an evidence ought not to totally affect the decision of the Court unless the use of such evidence has resulted in occasioning a miscarriage of justice.
In the instant case, there is no doubt that even if the evidence allegedly given under cross examination by the Appellant is expunged from the record of proceedings, there would still be other pieces of veritable evidence to sustain the conviction of the Appellant. In the circumstance, the first issue ought to be and same is hereby resolved against the Appellant.
II. Was the Court of Appeal right when it affirmed the holding of the trial Court that the prosecution proved the case of conspiracy and armed robbery beyond reasonable doubt having regard to the variance on the date and the venue of the offence as contained in the particulars of the offence and the date and venue proved at the trial.
RULING: IN RESPONDENT’S FAVOUR.
II.A. It was aptly found by the Court below (at pages 294 — 295 of the record) in regard to the instant issue, that the Appellant’s grouse was not that the armed robbery for which he stood trial did not take place at all, or that he was not involved therein. The only Appellant’s grouse was that the prosecution defectively claimed the incident took place at Sawmill Garage Area instead of Awolowo Road, Tanke Area, both in Ilorin. Likewise, the Appellant raised the issue of the date on the charge sheet being different (15/03/14) from the date given in evidence by the prosecution witnesses. As copiously alluded to above, the Court below conclusively stated: Also, it is noted that the prosecution witnesses were consistent as to the incident having taken place on 5th March, 2014. There was no contradiction as to the date of this incident amongst the prosecution witnesses. I hold that the place of the incident being Awolowo Road, Tanke Area, Ilorin as opposed to Sawmill Garage, where the Appellant and his colleagues were arrested with the robbed car and other items and the date given in evidence as opposed to the date on the charge sheet are not enough reasons to absolve the appellant of the offences charged. I hold that there was a nexus between the offences charged and the conviction of the appellant by the trial Court.
III. Whether the Court of Appeal properly affirmed the conviction and sentence of the Appellant for the offence of illegal possession of Firearm under Section 3 (1) of the Robbery and Firearms (Special provision Act) 2004 when the prosecution did not prove that the possession of the gun, exhibit 2, allegedly found on the Appellant is prohibited under the provisions of Sections 3, 4 and 5 of the Firearms Act Cap 28 Laws of the Federation 2004.
RULING: IN RESPONDENT’S FAVOUR.
III.A. Hence, in my considered view, the concurrent findings of the Court below (at pages 303 lines 8 — 14 of the Record), to the effect that the trial Court rightly convicted the Appellant for the offence of being in possession of firearms are very much apt, cogent, unassailable, and duly supported by the evidence on record.
IV. Whether the Court of Appeal understood and considered the complaint raised in issue 1 before it and if not whether the non-consideration of the issue occasioned a miscarriage of justice.
RULING: IN RESPONDENT’S FAVOUR.
IV.A. Most ironically, in the instant case, there is no doubt that the defence of alibi raised by the Appellant is baseless and a sheer after thought. The Appellant not only raised the purported alibi for the first time in Court, but he woefully failed to furnish the Court with particulars thereof.
➥ MISCELLANEOUS POINTS
➥ REFERENCED (STATUTE)
Section 82 of the Evidence Act.
Sections 6 (a) and 1 (2) of the Armed Robbery and Firearms (Special Provisions) Act, 2004.
➥ REFERENCED (CASE)
⦿ DOCTRINE OF PARASITIC ACCESSORY LIABILITY
In the case of R. VS. GNANGO Appeal No. (2011) UKSC.59, the Supreme Court aptly postulated on the fundamental doctrine of Parasitic Accessory Liability (which is akin to the principle of Criminal Conspiracy): The ingredients for parasitic accessory liability are that two parties participate in the commission of crime A and B in the course of committing it, D1 commits crime B which D2 foresees that he might commit… There is no reason in general why the parasitic accessory liability principle cannot be applied where crime A is affray and Crime B is murder. All that is required is proof of (i) a common purpose to commit an affray which is shared by D1 and D2 in the sense that they agreed to commit the offence, and (ii) a murder committed by D1 in the course of the affray commission of which is foreseen as a possibility … All the members of the group who foresee ….. that he might use the knife to commit a murder would also be liable for murder. The fact that they were also guilty of an affray would be no bar to their liability for murder.
➥ REFERENCED (OTHERS)
⦿ UN DEFINITION OF FIREARM
According to the United Nations International Protocol on Firearms: “Firearm” shall mean any portable barrelled weapon that expels, is designed to expel or may be readily converted to expel a shot, bullet or projectile by the action of an explosive, excluding antique firearms or their replicas. Antique firearms and their replicas shall be defined in accordance with domestic law.”