CHIKAODILI v. STATE (2020)

CHIKAODILI v. STATE

(2020)LCN/14612(CA)

In The Court Of Appeal

(ENUGU JUDICIAL DIVISION)

On Friday, September 25, 2020

CA/E/123C/2018

RATIO

PLEADINGS: AN APPELLATE COURT IS BOUND BY THE RECORD OF APPEAL.

The law is settled that an appellate Court is bound by the record of appeal. The Court is not allowed to read into the record what is not there. See PML (NIG.) V. FRN (2017) LPELR-43480 (SC) AT 22 (C-F). ONWUKA V. ONONUJU & ORS. (2009) LPELR-2721 (SC) AT 28 (E-F). As regards the assertion of the appellant that the Court below abandoned the trial within trial midway and failed to deliver a ruling, this Court must examine the record of appeal to discover what transpired at the Court below in respect of the trial within trial. In PML (NIG.) LTD V. FRN (SUPRA), the Supreme Court per AUGIE, JSC held as follows:
“As the Appellant rightly submitted, an appellate Court is bound by the record of appeal, which means that this Court is not allowed to venture outside the perimeter of its contents – see Orugbo V. Una (2002) 16 NWLR (Pt. 792) 175 at 206-207, where Tobi, JSC, observed “An appellate Court has no jurisdiction to read into the record what is not there and it equally has no jurisdiction to read out of the record what is there. Both are forbidden areas of an appellate Court – – – An appellate Court must read the Record in its exact content and interpret it. Of course, it has the jurisdiction to decide whether on the face of the record and on the cold facts the decision was proper or not.” Per MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

RATIO

PLEADINGS: THE LAW IS SETTLED THAT WHERE THERE IS NO APPEAL AGAINST A SPECIFIC FINDING OF THE TRIAL COURT, THE PARTIES ARE DEEMED TO HAVE ACCEPTED IT AS CORRECT.

There is nothing in the record suggesting even remotely that the Court placed the burden of proving that the statements sought to be tendered by the prosecution were not made voluntarily on the appellant as wrongly asserted by the appellant’s counsel. The clear finding and ruling of the Court was that the appellant was not tortured to make his extra-judicial statements to the police as alleged. There is no appeal against that finding and ruling. The law is settled that where there is no appeal against a specific finding of the trial Court, the parties are deemed to have accepted it as correct. The finding remains conclusive and binding on the parties. See IPIGANSI & ANOR V. INEC & ORS (2019) LPELR-48907 (CA) AT 42-43 (C-A). ADEJOBI & ANOR. V. STATE (2011) LPELR-97 (SC). The Court below having conducted a trial within trial as required by law to determine whether or not the appellant’s statements were voluntarily made and having specifically ruled that the appellant was not tortured to make the statements, the issue of whether or not the statements are confessional statements are irrelevant. It is not the law that only a confessional statement can be used to contradict the evidence of an accused person. Section 48 of the Evidence Act provides that any statement made by a defendant at a preliminary investigation or at a coroner’s inquest may be given in evidence. Section 83(1) (a) of the Evidence Act provides that:
83. (1) “In any proceedings where direct oral evidence of a fact would be admissible, any statement made by a person in a document which seems to establish that fact shall, on production of the original document, be admissible as evidence of that fact if the following conditions are satisfied:
(a) If the maker of the statement either-
(i) Had personal knowledge of the matters dealt with by the statement; or
(ii) Where the document in question is or forms part of a record purporting to be a continuous record, made the statement (in so far as the matters dealt with by it are not within his personal knowledge) in the performance of a duty to record information supplied to him by a person who had, or might reasonably be supposed to have personal knowledge of those matters; and
(b) If the maker of the statement is called as a witness in the proceedings:
Provided that the condition that the maker of the statement shall be as a witness needed not be satisfied if he is dead, or unfit by reason of his bodily or mental condition to attend as a witness, or if he is outside Nigeria and it is not reasonably practicable to secure his attendance, or if all reasonable efforts to find him have been made without success.”
Section 232 of the Evidence Act also provides that:
“232. A witness may be cross-examined as to previous statements made by him in writing or reduced into writing and relative to matters in question in the suit or proceeding in which he is cross-examined without such writing being shown to him or being proved, but if it is, intended to contradict such witness by the writing, his attention must, before such writing can be proved or such contradictory proof given, be called to those parts of the writing which are to be used for the purpose of contradicting him; Provided always that it shall be competent for the Court at any time during the trial to require the production of the writing for its inspection, and the Court may thereupon make use of it for the purposes of the trial, as it deems fit.”
A combined reading of the provision of Sections 48, 83 (1) (a) and 232 of the Evidence Act is to the effect that any statement made by a witness may be used to establish a contradiction between his evidence in Court and his previous statement whether in civil or criminal proceedings and whether the statement contains an admission or a confession. See OLAOYE V. STATE (2018) LPELR-43601 (SC) AT 45-46 (B-A). The Court below having admitted the appellant’s statements in evidence was right to look into the statements and compare same with his oral evidence before the Court whether the statement is a confessional statement or not. The law is settled that in order to secure a conviction for murder, the prosecution must prove beyond reasonable doubt that (a) the deceased died, (b) that the death of the deceased was caused by or resulted from the act of the accused person, (c) the act of the accused person was intentional with the knowledge that death or bodily harm was a probable and not a likely consequence. See SHAIBU V. STATE (2017) 16 NWLR (PT.1592) 396 AT 432 (F-H). Per MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

RATIO

PLEADINGS: DEFENCE OF ALIBI

A defence of alibi postulates that the accused was somewhere else at the time the crime was committed. That is to say that it was impossible for the accused to commit the offence because he was at another location at the time of the commission of the offence and could not have travelled from that location from the time he was seen and the time the crime was committed or vice versa. In ILODIGWE V. STATE (SUPRA), the Supreme Court per CHUKWUMA ENEH held that:
“For a plea of alibi to be successful the defence must show inter-alia that:
a. The accused is so separated by distance that ordinarily he cannot have travelled from that place where it is alleged he was to the scene of crime;
b. That even if he has been staying within a short distance he has been seen by people there at the time the alleged crime was said to have been committed or that he has been physically prevented from approaching the scene of crime by an external force or may be by ill-health and so certified by a medical doctor.”
The law is trite that a plea of alibi must be timeously raised to enable the police to investigate it. In order for the police to embark on an investigation of the plea of alibi, the accused must give the particular place or address he was at the time of the commission of the crime and the people who were with or saw him there. See SANMI V. STATE (2019) LPELR-47418 (SC) AT 32-34 (G-D) where the Supreme Court per AUGIE, JSC held that as follows:
“The Appellant claimed that he was elsewhere, and alibi is Latin for “elsewhere”. The defence of alibi is based on the physical impossibility of an Accused being guilty by placing him in another location at the relevant time. It also means – “the fact or state of having been elsewhere when an offence was committed”- see Black’s Law Dictionary, 8th Ed. Once the defence of alibi is properly raised during investigations, it is the duty of the Police to investigate it and for the Prosecution to disprove it. But for the defence of alibi to be worthy of investigation, it must be precise and specific in terms of the place that the accused was and the person or persons he was with and possibly what he was doing there at the material time – see Shehu V. State (2010) 8 NWLR (Pt. 1195) 112 and Ochemaje V. State (2008) 15 NWLR (Pt. 1109) 57, wherein this Court, per Tobi, JSC expatiated on the issue as follows – It is not the law that the Police should be involved in a wild goose chase for the whereabouts of the Accused person at the time the crime was committed. No. That is not the function or role of the Police. The accused must give specific particulars of where he was at the time of the material time to enable the Police move straight to that place to carry out the investigation required by law – Investigation is not a necessity if the evidence unequivocally points to the guilt of the accused person, either in the evidence of the witnesses or under cross-examination of the accused or his witness. In this case, the Appellant said he was in Lagos, but he did not give any details of his. Per MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

RATIO

PLEADINGS: A PARTY WHO FAILS TO UTILISE AN OPPORTUNITY TO HEARD CANNOT TURN ROUND TO CLAIM LACK OF FAIR HEARING

The law is sacrosanct that a party who fails to utilise an opportunity to heard cannot turn round to claim lack of fair hearing, see FEDERAL HOUSING AUTHORITY V. KALEJAIYE (2010) LPELR)-1267 (SC) AT 27 (A-D) where the Supreme Court per ONNOGEN, JSC held that:
“It must be pointed out that the role of the Court in adjudication is to maintain a level playing field for the parties by offering them equal opportunity to present their case or grievances; if they so wish. Once the opportunity is offered, it is the duty of a party to litigation or his counsel to utilize same in accordance with the rules of procedure and substantive law. Where however, he or his counsel fails or neglects to utilize the opportunity so offered, he cannot turn round to blame the Court for the loss of the opportunity as the Court will not allow a party to hold the opponent or the Court to ransom under the guise of the desire to protect the principles of fair hearing. To me the right to fair hearing remains the right to opportunity to be heard on any matter affecting one’s right(s). Once that opportunity is offered, the duty of the Court ends there.”
See also BILL CONSTUCTION CO. LTD V. IMANI & SONS LTD./SHELL TRUSTEES LTD. (2006) LPELR-782 (SC) AT 12-13 (D-A). The submission of the appellant’s counsel that the Court should have asked the appellant’s counsel why he failed to file a written address as it may be due to failure to pay legal fee is not only ridiculous and nonsensical, it is unethical. Where a counsel has nothing to urge or canvass in favour of a party he has a duty to so inform the Court and not to resort to raking up ridiculous issues and allegations against the Court. In ADEBAYO V. A. G. OGUN STATE (2008) 7 NWLR (PT.1085) 201, (2008) LPELR- 80(SC) AT 23-24(C-F). The Supreme Court per TOBI, JSC held that:
“Learned counsel for the appellant roped in the fair hearing principle. I have seen in recent times that parties who have bad cases embrace and make use of the constitutional provision of fair hearing to bamboozle the adverse party and the Court, with a view to moving the Court away from the live issues in the litigation. They make so much weather and sing the familiar song that the constitutional provision is violated or contravened. They do not stop there. They rake the defence in most inappropriate cases because they have nothing to canvass in their favour in the case. The fair hearing provision in the Constitution is the machinery or locomotive of justice; not a spare part to propel or invigorate the case of the user. It is not a casual principle of law available to a party to be picked up at will in a case and force the Court to apply it to his advantage. On the contrary, it is a formidable and fundamental constitutional provision available to a party who is really denied fair hearing because he was not heard or that he was not properly heard in the case. Let litigants who have nothing useful to advocate in favour of their cases, leave the fair hearing constitutional provision alone because it is not available to them just for the asking.”
See also GOV. OF IMO STATE & ORS. V. E.F. NETWORK (NIG.) LTD & ANOR. (2019) LPELR-46938 (SC) AT 31-33 (B). The contention of the appellant that he was not given enough opportunity to address the Court is unmeritorious. Per MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

Before Our Lordships:

Ignatius Igwe Agube Justice of the Court of Appeal

Misitura Omodere Bolaji-Yusuff Justice of the Court of Appeal

Abubakar Sadiq Umar Justice of the Court of Appeal

Between

OKENYI CHIKAODILI APPELANT(S)

And

THE STATE RESPONDENT(S)

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Ebonyi State delivered in charge no. HNK/5C/2013 on 20/12/2017. The appellant herein was arraigned along with one other person on a one count charge of murder of one Monday Moses Ovu Uwunna-contrary to Section 319(1) of the Criminal Code Law, Cap.33 Volume 1, Laws of Ebonyi State of Nigeria, 2009. The prosecution’s case was that on 22/12/2011 a fight broke out at a drinking joint at a market square. The deceased and other persons ran away from the scene of the fight. After the fight subsided, two of the women who operated drinking joints there returned to their shops to carry their properties. They saw the appellant and one Udoka Orife beating the deceased who also returned there to carry his motorcycle which he had abandoned at the scene. The deceased sustained several injuries but managed to leave for his home after resting a while. He was taken to the hospital by his mother and wife and he died next day, 23/12/2011.

The prosecution called a total of six (6) witnesses to establish its case against the appellant.

The appellant and the other accused testified in their own defence and called no other witness. The appellant was found guilty and sentenced to death. The 2nd accused was found not guilty. He was discharged and acquitted.

The appellant was aggrieved by the judgment. He filed a notice of appeal against the judgment on 10/8/2018. Pursuant to an application filed on 24/4/20, an amended notice of appeal filed on 24/4/20 was deemed as properly filed and served on 28/4/20. The six (6) grounds of appeal in the amended notice of appeal without their particulars are as follows:
GROUND ONE
“The learned trial judge erred in law when he suspended the trial within trial for being abandoned by the appellant and proceeded to admit the appellant’s statement as Exhibits P4, P4A and P4B.
GROUND TWO
The learned trial judge misdirected himself when he held as follows:
“..From the above, it is clear that the evidence of 1st accused in this case is self contradictory and in itself contradicts his extra-judicial statements. The law is trite that in such a situation, the evidence of accused is unreliable and extra judicial statement not

evidence. See the case of Ayo Gabriel v. The State (1989) 5 NWLR (pt.122) 457 and Umani v. State (1988) 1 NWLR (pt.70) 274. The implication therefore to my mind is that 1st accused has no defence to the charge against him.”
GROUND THREE
The learned trial judge erred in law when he found the appellant guilty without considering the alibi he raised in his extra-judicial statement to the police.
GROUND FOUR
The learned trial judge misdirected himself when he held at pages 19-20 of his judgment as follows:
“…A look at the contents of exhibits P4 and P4A clearly shows that 1st accused never told the police that he stopped at the market square on that date of the incident to separate a fight between any persons as he testified in Court. In the said exhibits he stated that he was not aware that there was any fight at all and he was not part of the fight. From the above, it is clear that the evidence of 1st accused in this case is self contradictory and in itself contradicts his extra judicial statements. The law is trite that in such a situation, the evidence of the accused is unreliable and his extra judicial statement not

Appellant’s brief of argument was filed on 24/4/20. It was deemed as properly filed and served on 28/4/20. The respondent’s brief was filed on 26/6/20. It was deemed as properly filed and served on 30/6/20. The appellant formulated the following issues for determination:
1. “Whether or not the learned trial judge was right when he rejected the evidence of the appellant on ground of contradiction after suspending trial within trial and went ahead and convicted him based on unchallenged evidence of the PW1 and PW2.

(Culled from grounds, 1, 2 and 4 of the amended notice of appeal)
2. Whether or not the learned trial judge was right when he found the appellant guilty without considering the alibi he raised in his extra-judicial statement to the police. (Culled from ground 3 of the amended notice of appeal)
3. Whether or not the learned trial judge was right when he foreclosed the appellant from filing a written address at the conclusion of evidence in the case. (Culled from ground 5 of the amended notice of appeal)”.

The respondent formulated the following issues for determination:
1. “Whether the prosecution successfully proved its case beyond reasonable doubt as to have warranted the conviction of the appellant.
2. Whether Exhibits P4, P4A and P4B are confessional in nature as to warrant embarking on trial within trial by the Trial Court by virtue of the provision of Section 29 of the Evidence Act, 2011.
3. Whether the Exhibits P4, P4A and P4B are contradictory to the appellant’s evidence in chief during the trial as to have warranted their rejection as done by the Trial Court; and
4. Whether in view of the

visual identification of the appellant at the scene of crime by the PW2 and PW3, the plea of Alibi by the appellant was not demolished.”

None of the parties formulated an issue in respect of ground 6 of the appeal. The law is settled that a ground of appeal from which no issue is formulated is deemed abandoned and ought to be struck out by the Court. See DAKOLO & ORS. V. REWANE-DAKOLO & ORS. (2011) LPELR-915(SC) AT 29(C-E). MATHEW V. STATE (2019) LPELR-46930 (SC) AT 4-5 (E-B). Since no issue is formulated from ground 6 of the amended notice of appeal, that ground of appeal has been abandoned and is accordingly struck out. ADEJUMO & ORS. V. OLAWAIYE (2014) LPELR-22997 (SC) AT 25 (A-C).

I have considered grounds 1-5 of the appeal and the issues formulated by counsel. I find the issues formulated by the appellant to be apt for the determination of this appeal.

On issue 1, the appellant’s counsel submitted that when an accused raised objection to admissibility of a statement on ground of involuntariness, the onus is on the prosecution to prove that the statement was voluntarily made. He referred to Section 29(2) of the Evidence Act, 2011.

He further submitted that the abandonment of trial within trial half way by the Court below on the ground that the appellant failed to adduce evidence after the prosecution had called its witnesses amounts to a denial of fair hearing guaranteed under Section 36 of the Constitution and the outcome of the trial ought to be nullified. He referred to F.B.N. PLC V. T.S.A. IND. LTD. (2010) 15 NWLR (PT.1216) 247 (12). UKWUYOK V. OGBULU (2010) 5 NWLR (PT.1187) 316. Counsel argued that the Court below erred when it admitted the appellant’s statement as an exhibit without a ruling on whether or not it was voluntarily made or signed because if the statement was not voluntarily made, there would be no justification to use it to contradict the oral evidence of the appellant. He further argued that there is no contradiction between exhibits P4 and P4A and the oral evidence of the appellant as the oral evidence of the appellant is not expected to be an accurate repetition of the contents of his extrajudicial statements. He referred to SHURUMO V. THE STATE (2010) 16 NWLR (PT.1218) 65 (21). OSADIM V. TAWO (2010) 6 NWLR (PT.1189) 155.

In response, the respondent’s counsel submitted that for a trial within trial to be conducted, the statement sought to be tendered must be confessional in nature. He referred to Sections 28 and 29 of the Evidence Act, 2011. MUSA UMARU KASA V. STATE (1994) 5 NWLR (PT.344) 269. GBADAMOSI V. STATE (1992) 11/12 SCNJ 269. He further submitted that the contents of exhibits P4, P4A and P4B did not disclose any admission or an inference that the appellant committed the offence for which he was charged. Therefore, the Court below was right to discontinue the trial within trial upon the discovery that the statements were not confessional statements. He further submitted that the Court below was right when he held that the extrajudicial statements of the appellant were unreliable and his evidence in Court not worthy of being acted upon because the appellant admitted being at the scene of the crime in exhibit P4 while in exhibit P4A, he denied knowledge of the incident and in exhibit P4B he admitted that he witnessed the crime. However in his evidence in Court, he only admitted that he stopped at the joint where the crime was committed to stop a fight between the 2nd

accused and another person and thereafter, he left for Onueke. On contradiction in evidence, he referred AYO GABRIEL V. THE STATE (1989) 5 NWLR (PT.122) 457. SALE DAGAYYA V. STATE (2006) NSCQLR (VOL.25) 780 AT 797-798.

RESOLUTION:
The law is settled that an appellate Court is bound by the record of appeal. The Court is not allowed to read into the record what is not there. See PML (NIG.) V. FRN (2017) LPELR-43480 (SC) AT 22 (C-F). ONWUKA V. ONONUJU & ORS. (2009) LPELR-2721 (SC) AT 28 (E-F). As regards the assertion of the appellant that the Court below abandoned the trial within trial midway and failed to deliver a ruling, this Court must examine the record of appeal to discover what transpired at the Court below in respect of the trial within trial. The record at page 152 shows that when the prosecution sought to tender the statements of the accused persons in evidence, the appellant’s counsel raised objection to the admissibility of the appellant’s statements on the ground that the appellant was forced to sign the statements at gun point. The 2nd accused person’s counsel informed the Court that he had no objection to the

admissibility of the 2nd accused person’s statement and the statement was admitted as exhibit P3. The record shows that the Court below ordered that a trial within trial be conducted in respect of the statements of the appellant in view of the objection raised by the appellant’s counsel. The record of appeal at pages 154-156 shows that the prosecution called one witness who testified that the appellant was not tortured to make the statement and that he wrote the statements himself in the presence of other police officers. The witness was cross-examined by the appellant’s counsel and the prosecution closed its case in the trial within the trial. The matter was adjourned for the appellant to open his case in the trial within trial. When the appellant failed to open his case after two adjournments granted to enable him do so, the prosecution applied that the defence in the trial within trial be foreclosed. There is nothing on the face of the record to suggest that the appellant opposed the prosecution’s application. After the grant of the prosecution’s application, the prosecuting counsel delivered a short address and the Court gave

a short ruling. The relevant portion of the record at pages 157-158 reads:
“Court: The 1st accused for two adjournments since the prosecution closed its case in the mini trial has not opened his defence and for no reason at all to the court. The dates are 21/1/2016 and today. The prosecution closed its case on 10/12/2015. I am of the view that the 1st accused has no defence to the case of the prosecution in the mini-trial. Consequently, the application of prosecuting counsel is hereby granted.
The 1st accused is therefore hereby foreclosed from testifying in the mini-trial.
F. N. Nteoma (Esq) for the state applies that the Court rules in favour of the prosecution in the trial within trial, the defence having been foreclosed. He further states that the prosecution by evidence in the trial within trial succeeded in establishing that the 1st accused was not tortured to make the statement sought to be tendered. He also referred to Section 29(2) of the Evidence Act 2011 and submitted that the statement of 1st accused sought to be tendered is not a confessional statement.
Court: I uphold the submission of prosecuting counsel in the

circumstances of this case to hold that the 1st accused was not tortured to make his extra-judicial statements to the police as alleged. Consequently, the said extra-judicial statements of the 1st accused dated 24/12/2011, 25/12/2011 and 30/12/2011 are both received in evidence and marked exhibits “P4”, “P4A” and “P4B”.

In PML (NIG.) LTD V. FRN (SUPRA), the Supreme Court per AUGIE, JSC held as follows:
“As the Appellant rightly submitted, an appellate Court is bound by the record of appeal, which means that this Court is not allowed to venture outside the perimeter of its contents – see Orugbo V. Una (2002) 16 NWLR (Pt. 792) 175 at 206-207, where Tobi, JSC, observed “An appellate Court has no jurisdiction to read into the record what is not there and it equally has no jurisdiction to read out of the record what is there. Both are forbidden areas of an appellate Court – – – An appellate Court must read the Record in its exact content and interpret it. Of course, it has the jurisdiction to decide whether on the face of the record and on the cold facts the decision was proper or not.”

It is clear on the face of

the record that the assertion of the appellant that the Court below suspended the trial within trial midway and failed to deliver a ruling is false. There is nothing in the record suggesting even remotely that the Court placed the burden of proving that the statements sought to be tendered by the prosecution were not made voluntarily on the appellant as wrongly asserted by the appellant’s counsel. The clear finding and ruling of the Court was that the appellant was not tortured to make his extra-judicial statements to the police as alleged. There is no appeal against that finding and ruling. The law is settled that where there is no appeal against a specific finding of the trial Court, the parties are deemed to have accepted it as correct. The finding remains conclusive and binding on the parties. See IPIGANSI & ANOR V. INEC & ORS (2019) LPELR-48907 (CA) AT 42-43 (C-A). ADEJOBI & ANOR. V. STATE (2011) LPELR-97 (SC).

The Court below having conducted a trial within trial as required by law to determine whether or not the appellant’s statements were voluntarily made and having specifically ruled that the appellant was not tortured to make

the statements, the issue of whether or not the statements are confessional statements are irrelevant. It is not the law that only a confessional statement can be used to contradict the evidence of an accused person. Section 48 of the Evidence Act provides that any statement made by a defendant at a preliminary investigation or at a coroner’s inquest may be given in evidence. Section 83(1) (a) of the Evidence Act provides that:
83. (1) “In any proceedings where direct oral evidence of a fact would be admissible, any statement made by a person in a document which seems to establish that fact shall, on production of the original document, be admissible as evidence of that fact if the following conditions are satisfied:
(a) If the maker of the statement either-
(i) Had personal knowledge of the matters dealt with by the statement; or
(ii) Where the document in question is or forms part of a record purporting to be a continuous record, made the statement (in so far as the matters dealt with by it are not within his personal knowledge) in the performance of a duty to record information supplied to him by a person who had, or might

reasonably be supposed to have personal knowledge of those matters; and
(b) If the maker of the statement is called as a witness in the proceedings:
Provided that the condition that the maker of the statement shall be as a witness needed not be satisfied if he is dead, or unfit by reason of his bodily or mental condition to attend as a witness, or if he is outside Nigeria and it is not reasonably practicable to secure his attendance, or if all reasonable efforts to find him have been made without success.”
Section 232 of the Evidence Act also provides that:
“232. A witness may be cross-examined as to previous statements made by him in writing or reduced into writing and relative to matters in question in the suit or proceeding in which he is cross-examined without such writing being shown to him or being proved, but if it is, intended to contradict such witness by the writing, his attention must, before such writing can be proved or such contradictory proof given, be called to those parts of the writing which are to be used for the purpose of contradicting him; Provided always that it shall be competent for the Court at any

time during the trial to require the production of the writing for its inspection, and the Court may thereupon make use of it for the purposes of the trial, as it deems fit.”
A combined reading of the provision of Sections 48, 83 (1) (a) and 232 of the Evidence Act is to the effect that any statement made by a witness may be used to establish a contradiction between his evidence in Court and his previous statement whether in civil or criminal proceedings and whether the statement contains an admission or a confession. See OLAOYE V. STATE (2018) LPELR-43601 (SC) AT 45-46 (B-A). The Court below having admitted the appellant’s statements in evidence was right to look into the statements and compare same with his oral evidence before the Court whether the statement is a confessional statement or not.

The law is settled that in order to secure a conviction for murder, the prosecution must prove beyond reasonable doubt that (a) the deceased died, (b) that the death of the deceased was caused by or resulted from the act of the accused person, (c) the act of the accused person was intentional with the knowledge that death or bodily harm was a

probable and not a likely consequence. See SHAIBU V. STATE (2017) 16 NWLR (PT.1592) 396 AT 432 (F-H). There is no controversy in respect of the death of Monday Moses Ovu Uwunna. There is also no controversy on the fact that he was attacked and beaten by some people at the joint where fighting took place when he went back to take his motorcycle from the scene after the fight. There is also no controversy on the fact that he died as a result of the injuries he sustained from the beating. The only controversy is whether the appellant was one of those who attacked and beat the deceased. PW2 and PW3 were categorical in their evidence that they saw the appellant and one other person beating the deceased. In exhibits P4 and P4A, the appellant stated that he went to the market square on the day of the incident to buy drinks and went back to his house and he was not aware of the fight. In exhibit P4B, he stated that he was there when the fight broke out. He mentioned the people who were involved in the fight and that he witnessed the fighting. In his evidence before the Court, he said he merely stopped there to separate the people fighting and left immediately

thereafter. In respect of the evidence of the appellant and his extra judicial statements, the Court below at page 196-197 of the record held that:
“Apart from exhibit P4B which he denied that he was not a maker, a look at the contents of exhibits P4 and P4A clearly shows that 1st accused never told the police that he stopped at the market square on that date of the incident to separate a fight between any persons as he testified in Court. In the said exhibits he stated that he was not aware that there was any fight at all and he was not part of the fight. From the above, it is clear that the evidence of 1st accused in this case is self contradictory and in itself contradicts his extra judicial statements. The law is trite that in such a situation, the evidence of the accused is unreliable and his extra judicial statement not evidence. See the case of Ayo Gabriel v. The State (1989) 5 NWLR (pt.122) 457 and Umani v. State (1988) 1 NWLR (pt.70) 274. The implication therefore to my mind is that 1st accused has no defence to the charge against him.
A look further at exhibit P4B, statement of 1st accused at state CID Abakaliki dated 30/12/011 which

the Court had held was not confessional, 1st accused stated that while he was drinking on the shade of Ukamaka Nwonu, with other people which included Iruka Nworie, Okwudili Alegu ,Nwaelem Nwonu, Egede Chinedu, Nwafor Chidiebere and Udoka Orife, Iruka Nworie and Okwudili Alegu started fighting the deceased. This again contradicted his testimony in Court that he separated someone in a fight with the 2nd accused other than the deceased and his 1st two extra judicial statements that there was no fight.”

I agree with the appellant’s counsel that the oral evidence of a witness need not be an accurate repetition of the contents of his extra-judicial statement. However, the salient points or facts must remain the same if the witness tells the truth. Where a witness changes his story from one point to another, the Court must be wary of attaching credibility to the witness or giving probative value to his evidence. In the instant case, the appellant first stated that he went to the market square to buy drinks and he returned to his house immediately after buying the drinks. The story then changed in exhibit P4B where he admitted that he sat down and was

drinking when the fighting started and that he was an eye witness to the fighting. Then in his evidence before the Court, he said he was passing by when he saw the fighting and after separating the people fighting he left for onueke, not his house this time. The Court below was on a firm ground when it refused to rely on the evidence of the appellant as to whether or not he was present at the scene of the crime.

The Court below having considered the evidence of PW2 and PW3 on the presence of the appellant and the part played by him in the beating of the deceased and the appellant’s evidence held as follows at pages 197 of the record:
“In the light of the manifest contradictions contained therein and its material contradictions with his extra judicial statements, the question that is to be resolved in this case is whether the prosecution through evidence linked the death of the deceased to the act of the 1st accused.
From the evidence of prosecution witnesses, particularly the two eye witnesses (PW2 and PW3) which has been severally reproduced and analysed at the course of this judgment I make bold to resolve the said ingredient of the

offence of murder in the affirmative as the evidence of the two eye witnesses clearly pinned the 1st accused to the scene of crime. I therefore hold that the prosecution in this case has satisfactory linked the act of the 1st accused to the death of the deceased, viz, the beating of the deceased with stick which resulted in the head injury as contained in the evidence of PW2 and confirmed in exhibit “P1” ( the medical report).”

The finding of the Court below cannot be faulted. PW2 vividly described the incident and how people ran away from the scene. How the deceased ran away from the scene and she ran behind him, how they came back to the scene and the appellant and one Udoka Orife started beating the deceased, how they came after her when she shouted that they should leave the deceased. PW3 stated that the appellant and a group of boys came to her shop on the day of the incident and sat there drinking when fighting broke out. She ran away because the fighting was heavy. When she returned to the scene, she saw the appellant and Udoka Orife beating the deceased and the deceased was shouting that he was not among the people fighting but

they continued beating him with stick. She said the deceased returned to the scene to carry his motorcycle when the appellant and Udoka Orife attacked him. Under cross-examination, she said the deceased was not among the people fighting on the day of the incident. PW2, PW3 and the appellant knew each other before the day of the incident. Under cross-examination the appellant said he knew PW2 and PW3, they are all from the same village. An unbiased reading and consideration of the evidence of PW2 and PW3 leaves no one in doubt that they are witnesses of truth and they saw the appellant beating the deceased. In the face of the evidence of PW2 and PW3 which was not shaken or discredited, the Court below had no choice but to believe and rely on it to convict the appellant. Issue 1 is resolved against the appellant.

On issue 2, the appellant’s counsel submitted that the failure of the prosecution to disprove the alibi timeously raised by the appellant in his statements entitles the appellant to acquittal. He referred to AIGUOREGHIAN V. THE STATE (2004) 3 NWLR (PT.860) 367 AT 410 (E-G). IDEMUDIA V. STATE (2015) 17 NWLR (PT.1488) 375 AT 399 (B-D).

In response, the respondent’s counsel referred to exhibits P4A and P4B, he submitted that the inability of the appellant to supply the particulars of the alibi as required by the law and the virtual identification of the appellant by PW2 and PW3 destroyed the plea of Alibi. He referred to ODU V. STATE (2001) 10 NWLR (PT.722) 668 AT 674 (B-C). ILODIGWE V. STATE (2012) 18 NWLR (PT. 1331) 1 AT 40 (A-D). AFOLALU V. STATE (2010) 16 NWLR (PT.1220) 584 AT 605 (E-F). IKECHUKWU SUNDAY V. STATE (2010) 44 NSCQR1.

RESOLUTION:
A defence of alibi postulates that the accused was somewhere else at the time the crime was committed. That is to say that it was impossible for the accused to commit the offence because he was at another location at the time of the commission of the offence and could not have travelled from that location from the time he was seen and the time the crime was committed or vice versa. In ILODIGWE V. STATE (SUPRA), the Supreme Court per CHUKWUMA ENEH held that:
“For a plea of alibi to be successful the defence must show inter-alia that:
a. The accused is so separated by distance that ordinarily he cannot have travelled

from that place where it is alleged he was to the scene of crime;
b. That even if he has been staying within a short distance he has been seen by people there at the time the alleged crime was said to have been committed or that he has been physically prevented from approaching the scene of crime by an external force or may be by ill-health and so certified by a medical doctor.”
The law is trite that a plea of alibi must be timeously raised to enable the police to investigate it. In order for the police to embark on an investigation of the plea of alibi, the accused must give the particular place or address he was at the time of the commission of the crime and the people who were with or saw him there. See SANMI V. STATE (2019) LPELR-47418 (SC) AT 32-34 (G-D) where the Supreme Court per AUGIE, JSC held that as follows:
“The Appellant claimed that he was elsewhere, and alibi is Latin for “elsewhere”. The defence of alibi is based on the physical impossibility of an Accused being guilty by placing him in another location at the relevant time. It also means – “the fact or state of having been elsewhere when an offence was committed”- see

Black’s Law Dictionary, 8th Ed. Once the defence of alibi is properly raised during investigations, it is the duty of the Police to investigate it and for the Prosecution to disprove it. But for the defence of alibi to be worthy of investigation, it must be precise and specific in terms of the place that the accused was and the person or persons he was with and possibly what he was doing there at the material time – see Shehu V. State (2010) 8 NWLR (Pt. 1195) 112 and Ochemaje V. State (2008) 15 NWLR (Pt. 1109) 57, wherein this Court, per Tobi, JSC expatiated on the issue as follows – It is not the law that the Police should be involved in a wild goose chase for the whereabouts of the Accused person at the time the crime was committed. No. That is not the function or role of the Police. The accused must give specific particulars of where he was at the time of the material time to enable the Police move straight to that place to carry out the investigation required by law – Investigation is not a necessity if the evidence unequivocally points to the guilt of the accused person, either in the evidence of the witnesses or under cross-examination of the accused or

his witness. In this case, the Appellant said he was in Lagos, but he did not give any details of his address in Lagos at the time, and those that he was with. Thus, there was no way the Police could have investigated whether he was actually in Lagos or not, at the time the crime was committed. Besides, there was more than enough evidence adduced by the Prosecution to support the concurrent findings of the lower Courts, and it is for this and the other reasons in the lead Judgment that I also dismiss this Appeal and affirm the decision of the Court of Appeal.”
See also OPEYEMI V. STATE (2019) LPELR-48764 (SC) AT 14-15 (D). In this case, the appellant stated in exhibit P4 that he went to the market square, bought drinks and went back to his house. He repeated same in exhibit P4A. In exhibit P4B, he stated that he bought a bottle of palm wine and while he was there taking his drink, a group of boys sitting on another table started fighting and breaking bottles. In his evidence before the Court, he said he entered Okada from Nwaffia Oga to his own compound greeted his parent and the same Okada was taking him back to Onueke where he resided when they saw a

crowd at the market. They stopped, separated the people fighting and he joined the same Okada to a junction where he entered a vehicle to Onueke. By exhibits P4, P4A and P4B and his evidence in Court, the appellant placed himself at different locations at the relevant time the crime was committed. It is a very good example of sending the police on a wild goose chase for the where about of the appellant at the time of the commission of the crime. In any case, the alibi was not worthy of investigation because PW2 and PW3 were not in any doubt that the appellant was the person they saw with Udoka Orife beating the deceased. The prosecution successfully disproved the defence of alibi by the evidence of PW2 and PW3 which fixed the appellant at the scene of the crime and established beyond reasonable doubt that he participated in beating the deceased. Issue 2 is resolved against the appellant.

On issue 3, I find it necessary to reproduce the argument of the appellant’s counsel in his own words. It reads:
“At the close of trial in the case, the Court adjourned for adoption of written addresses to 6th December, 2017. On the said date, counsel

except counsel to the 2nd accused person defaulted in complying to the order of Court. However, the Court further adjourned to 20th December, 2017 and the prosecution and the counsel to the appellant still failed or neglected to file any final address leading the learned trial judge to foreclose them and adjourned the case for judgment.
Surprisingly, no reason was given for failure by the appellant’s counsel to file a final address on behalf of the appellant. We are of the persuasion that the learned trial judge ought to have asked counsel why he failed to file a final address on behalf of the appellant who was charged with the capital offence. If the learned trial judge had enquired, he would have known why counsel refused to file an address for the appellant. It might be due to failure of the appellant to pay legal fee.
Furthermore, it is wrong for the learned trial judge to foreclose the appellant as one more adjournment in the circumstances of the case and in view of the nature of the charge preferred against the appellant would not have been an overindulgence. In the circumstances, it can rightly be said that the case was determined

without the appellant’s final address which violated his right to fair hearing as guaranteed under Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Section 294(1) of the same Constitution.”

In response, the respondent’s counsel submitted that the appellant who had the opportunity to file a written address but chose not to do so cannot claim lack of fair hearing as the Court cannot wait for a party. He referred to EKARA V. TAKIM (1995) 5 NWLR (PT.394) 242 AT 252 (H-A).

RESOLUTION:
Parties are ad idem that the appellant had ample opportunities to file a final written address but failed and neglected to do so. The defence closed their case on 8/11/2017. Parties were given time to file their respective written addresses. The case was adjourned to 6/12/2017 for adoption of addresses. By that date, only the 2nd accused filed a written address. It is not on record that the appellant’s counsel sought for an adjournment to enable him file a final address and was refused. As rightly submitted by the respondent’s counsel, it is not the duty of the Court to wait or conduct a case at the

pleasure of a party. Justice is not a one way traffic. All the parties in the matter are entitled to justice and equal opportunities to be heard. The duty of the Court does not extend beyond creating a conducive environment and given all the parties ample opportunities to present their case including filing of final written addresses. The law is sacrosanct that a party who fails to utilise an opportunity to heard cannot turn round to claim lack of fair hearing, see FEDERAL HOUSING AUTHORITY V. KALEJAIYE (2010) LPELR)-1267 (SC) AT 27 (A-D) where the Supreme Court per ONNOGEN, JSC held that:
“It must be pointed out that the role of the Court in adjudication is to maintain a level playing field for the parties by offering them equal opportunity to present their case or grievances; if they so wish. Once the opportunity is offered, it is the duty of a party to litigation or his counsel to utilize same in accordance with the rules of procedure and substantive law. Where however, he or his counsel fails or neglects to utilize the opportunity so offered, he cannot turn round to blame the Court for the loss of the opportunity as the Court will not allow a party to

hold the opponent or the Court to ransom under the guise of the desire to protect the principles of fair hearing. To me the right to fair hearing remains the right to opportunity to be heard on any matter affecting one’s right(s). Once that opportunity is offered, the duty of the Court ends there.”
See also BILL CONSTUCTION CO. LTD V. IMANI & SONS LTD./SHELL TRUSTEES LTD. (2006) LPELR-782 (SC) AT 12-13 (D-A). The submission of the appellant’s counsel that the Court should have asked the appellant’s counsel why he failed to file a written address as it may be due to failure to pay legal fee is not only ridiculous and nonsensical, it is unethical. Where a counsel has nothing to urge or canvass in favour of a party he has a duty to so inform the Court and not to resort to raking up ridiculous issues and allegations against the Court. In ADEBAYO V. A. G. OGUN STATE (2008) 7 NWLR (PT.1085) 201, (2008) LPELR- 80(SC) AT 23-24(C-F). The Supreme Court per TOBI, JSC held that:
“Learned counsel for the appellant roped in the fair hearing principle. I have seen in recent times that parties who have bad cases embrace and make use of the

constitutional provision of fair hearing to bamboozle the adverse party and the Court, with a view to moving the Court away from the live issues in the litigation. They make so much weather and sing the familiar song that the constitutional provision is violated or contravened. They do not stop there. They rake the defence in most inappropriate cases because they have nothing to canvass in their favour in the case. The fair hearing provision in the Constitution is the machinery or locomotive of justice; not a spare part to propel or invigorate the case of the user. It is not a casual principle of law available to a party to be picked up at will in a case and force the Court to apply it to his advantage. On the contrary, it is a formidable and fundamental constitutional provision available to a party who is really denied fair hearing because he was not heard or that he was not properly heard in the case. Let litigants who have nothing useful to advocate in favour of their cases, leave the fair hearing constitutional provision alone because it is not available to them just for the asking.”
See also GOV. OF IMO STATE & ORS. V. E.F. NETWORK (NIG.) LTD & ANOR.

(2019) LPELR-46938 (SC) AT 31-33 (B). The contention of the appellant that he was not given enough opportunity to address the Court is unmeritorious. Issue 3 is resolved against the appellant.

In conclusion, I find that this appeal has no merit. It is hereby dismissed. The judgment of the High Court of Ebonyi State delivered in charge no. HNK/5C/2013 on 20/12/2013 is hereby affirmed. The conviction and sentence passed on the appellant is hereby affirmed.

IGNATIUS IGWE AGUBE, J.C.A.: I have had the benefit of reading the Judgment of my learned brother MISITURA OMODERE BOLAJI-YUSUFF, JCA before now and he has characteristically dealt with the Issues raised in this Appeal with utmost clarity and resolved them in accordance with decided authorities of the Supreme Court and indeed this Court. I agree therefore with his reasoning and conclusion that the Appeal is unmeritorious and should fail. I too dismiss same.

The Judgment of the High Court of Ebonyi State delivered in Charge No. HNK/5C/2013 on 20th day of December 2013 is hereby affirmed. The conviction and sentence passed on the Appellant is hereby affirmed.

ABUBAKAR SADIO UMAR, J.C.A.: I had the opportunity of reading in advance, the well-considered judgment of my learned brother, MISITURA OMODERE BOLA.JI-YUSUFF, JCA just delivered. I agree with the reasoning and conclusion contained therein.

This appeal lacks merit and is hereby dismissed. The judgment of the High Court of Ebonyi State delivered in Charge No: HNK/5C/2013 ON 20/12/2013 is hereby affirmed.
I also affirm the conviction and sentence passed on the Appellant.

Appearances:

Chidi Nwankwo with S.O. Okoye For Appellant(s)

N. Nteoma, Deputy Director with S. C. Chukwu (Mrs) P. S. C. Ministry of Justice, Ebonyi State For Respondent(s)