ALTINE v. STATE (2020)

ALTINE v. STATE

(2020)LCN/14900(CA)

In The Court Of Appeal

(SOKOTO JUDICIAL DIVISION)

On Friday, December 04, 2020

CA/S/21C/2020

RATIO

JUDGMENT: CONTENTS OF A GOOD JUDGMENT

There is no universal rule as to the style of writing Judgment. All that is required is that the Judgment should meet the standard laid down by the Courts. See OMOLOLA VS STATE (2009)4 NCC 89 and ANYANKPELE VS NIGERIAN ARMY (2000) 2 CLRN 264, where the Court stated the contents of a good Judgment thus;
a. A resume of the type of action or charge.
b. The claim or charged well set out.
c. A review of the totality of the evidence led.
d. Perception and evaluation of the whole evidence.
e. A consideration of the legal submission made and/or arising and findings of law on them.
Conclusion. See also UMEANIA Vs EMODI (1996)2 NWLR (Pt. 430)348 and STEPHEN Vs STATE (1986)5 NWLR (Pt. 46) 978. PER TALBA, J.C.A.

APPEAL: WHETHER EVERY ERROR OF LOWER COURT WILL WARRANT THE SUCCESS OF AN APPEAL

And in the case of CHUKWUMA Vs FEDERAL REPUBLIC OF NIGERIA (2007)2 NCC 628 the Court of Appeal Kaduna Division held that it is not every error by a Lower Court that will warrant the success of an appeal. For an error to lead to the reversal of a Judgment it must be grave and crucial to the extent that it has occasioned a miscarriage of Justice. See also FADLALLAH Vs AREWA TEXTILE LTD (1997)8 NWLR (Pt. 518)546 and EZEOKE Vs NWAGBO (1988)1 NWLR (Pt. 72)616. PER TALBA, J.C.A.

JUDGMENT: IMPORTANT ASPECT OF JUDGMENT WRITING

Every Judge has his own style of writing a Judgment. What is important is that a Judgment should contain the essential ingredients of a good Judgment. Therefore, the Appellate Court is not concerned with any particular style of writing a Judgment. But what the Appellate Court is concerned with is whether the Judgment captures the issues before the Trial Court and there was proper application of the Law to the facts of the case. See ONUOHA V STATE (1988)3 NWLR (PT.83)460, IGAGO VS STATE (1999)12 SCNJ 140, NKADO VS OBIANO (1997)5 SCNJ 33, AWOPEJO VS STATE (2001)12 SCNJ 293. PER TALBA, J.C.A.

CRIMINAL: MEANING AND NATURE OF A CONVICTION

A conviction is no more than a finding of guilt. To convict someone of an offence is to find him guilty of the offence charged. It is a common practice for a Court to use the phrase: “I find you guilty of the offence of culpable Homicide contrary to Section 221 of the Penal Code and I convict you accordingly”. But it is settled law that where such express term are not used, the Judgment of the Trial Court will not be impugned on that ground provided it is apparent from the record that the verdict of the Court upon the accused is that of guilty. See INAJO Vs STATE (1980)1 NCR 170. PER TALBA, J.C.A.

Before Our Lordships:

Ali Abubakar Babandi Gumel Justice of the Court of Appeal

Frederick Oziakpono Oho Justice of the Court of Appeal

Abubakar Mahmud Talba Justice of the Court of Appeal

Between

MOHAMMED RABO ALTINE APPELANT(S)

And

THE STATE RESPONDENT(S)

ABUBAKAR MAHMUD TALBA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of High Court of Justice Kebbi State, Birnin Kebbi Judicial Division Coram Justice Isma’il Haruna Bashir delivered on the 27th day of June, 2018, in Suit No.: KB/HC/9C/2016.

On the 6th day of June, 2016, the Learned Trial Judge granted leave to the prosecution (hereinafter referred to as the Respondent) to prefer a charge against the Appellant pursuant to Section 185(b) of the Criminal Procedure Code. Subsequently the Appellant was arraigned before the Trial Court on one count charge which reads:
“That you Muhammadu Rabo Altine ‘M’ on or about the 27th day of September, 2014 at about 1500 hrs at Laga Village in Bagudo Local Government Area of Kebbi State within the Jurisdiction of Kebbi State High Court of Justice committed the offence of Culpable Homicide in that you use your Cutlass and Matched one Mohammad Altine ‘M’ on his neck and hand while rearing his Cattle’s as a result he died on the spot and thereby committed an offence contrary to Section 221 of the Penal Code.”
Dated this 18th day of May, 2016.

Upon his arraignment, the Appellant pleaded not guilty having understood the charge read to him on the 27th day of October, 2016. The case proceeded to Trial and the prosecution called four witnesses Pw1 – Pw4, in order to prove its case against the Appellant. Four exhibits were tendered and admitted in evidence. The cutlass and its sheath marked as exhibits A and A1. The statement of the Appellant at the Divisional Police Headquarters and the Criminal Investigation Department (C. I. D) marked as exhibits B and B1 respectively. At the close of the case for the prosecution, the Appellant testified alone in his defence, and closed his case. The Trial Court adjourned for adoption of final written address. The prosecution filed its final written address on the 12th day of June, 2018, when the defence failed to file its written address after several adjournments at the instance of the defence.

In his Judgment delivered on the 27th day of June, 2018, the Learned Trial Judge sentenced the Appellant to death by hanging.

The Appellant upon being dissatisfied with the Judgment of the Lower Court, he appealed to this Court vide a Notice of Appeal filed

on the 9th day of July, 2018, with two Grounds of Appeal which reads:
GROUND ONE:
The Learned Trial Judge erred in Law when he held that:
“The mere retraction of the statement will not stop me from convicting him. I am also convinced based on the facts placed before me that the statement of the accused which I scrutinize effectively that it was the accused and only the accused that killed his father in order to get control over the cows.”

The Court erred further in law when it held that:
“In passing the sentence there taken into consideration accused prayer for leniency but the offence is a mandatory one. More over convict deserves no mercy for killing his father for the sake of getting cows only that are not his, secondly, there was no attempt of his life by his father instead his father advised him to stay till they have a family meeting and have collective opinion on it. Convict is sentenced to death by hanging till he dies. Soul rest in peace”.
PARTICULARS OF ERRORS:
1. The Trial Court sentenced the accused to death by hanging without first convicting him;
2. The Law is settled that an accused who has been tried

before a Court for a crime must be convicted before he can be sentenced;
3. The accused was denied his right to fair hearing as enshrined in the Constitution of the Federal Republic of Nigeria 1999, thereby occasioning a failure of Justice;
4. A sentence passed on a Court by which no verdict is recorded is a nullity.
GROUND TWO:
The Learned Trial Court erred in law when he held that:
“In the light of all said I am of the considered view that the confessional statement of the accused person and the testimonies of Pw2, 3 and 4 are strong and shows that it was the accused and nobody else committed the act…..”

The Learned Trial Court erred further when he held that:
“I adopt their reasoning and conclusions as I am bound by them. It is to be noted accused denied the charge and he forwarded defense in that he did not commit the offence and that he did not confess to the killing. Thereby in retracting the confessional statement, still accused has the presumption of innocent and he is not duty bound to prove his innocence as it was donated to him by the constitution of the Federal Republic of Nigeria. In my own

part, I am satisfied with the evidence added. It is settled law that an extra – Judicial Statement of an accused person can be considered and used by the Court even where the accused testify in his defense.”
PARTICULARS OF ERRORS:
1. The Learned Trial Judge failed to independently evaluate the evidence before him before arriving at a verdict;
2. The guilt of the accused must be established and proved beyond reasonable doubt by the prosecution before it would be safe for a Court to convict.

At the hearing of the appeal on the 5th day of September, 2020 Chris Ohene adopted the Appellant Brief of Argument filed on the 22nd July, 2020. Ostia Mbamalu also adopted the Respondent’s Brief of Argument filed on the 23rd September, 2020.

The Appellant distilled a sole issue for the determination of this appeal, from Ground One of the Grounds of Appeal. The Respondent equally distilled a sole issue for the determination of the appeal. The Appellants issue is thus:
Whether the Appellant was duly and properly convicted by the Trial Court before he was sentenced (Ground One).

The Respondents issue is thus:
Whether considering the facts

and circumstances of this case the Trial Court was right in sentencing the Appellant to death by hanging.

I wish to observe that there is no issue raised from Ground Two. It is settled law that any ground not covered by an issue is deemed abandoned and bound to be struck out hence it is no longer valid. Accordingly Ground Two is hereby struck out.

I have examined the two issues formulated by the Appellant and the Respondent. I am of the firm view that the issue formulated by the Appellant is more apt for the determination of this appeal and I adopt same as the issue for the determination of this appeal.

However, before I go into considering the issue for determination, it is important to look at the facts of this case. In summary on the 27th day of September, 2014 at about 1500 hours at Laga Village in Bagudo Local Government Area of Kebbi State one Mohammed Altine ‘M’ (deceased) was marcheted with a cutlass on his neck and head while he was rearing his cattle and he died on the spot. The Appellant wanted to sell some cow belonging to his father (the deceased) but his father refused to allow him to sell the cow. His purpose of wanting to sell

the cow is to enable him get married. A hot argument ensued between the Appellant and his father (the deceased). The deceased thereafter took his cow for rearing. The Appellant followed the deceased with stick and machete. Later in the day, the Appellant came back without the cow and he remained in the hut. Umaru Altine the Appellants brother saw the cow coming home without their late father and he queried the Appellant. Umaru Altine went to the bush to look for their father and he found his dead body. The Appellant was then arrested in connection with the death of the deceased Mohammed Altine.

The sole issue is whether the Appellant was duly and properly convicted by the Trial Court before he was sentenced. In arguing the issue for determination, Learned Counsel to the Appellant Mr. Chris Ohere cited the Provision of Section 221 of the Penal Code and he submitted that to prove the offence of Culpable Homicide, the prosecution must prove the following facts beyond reasonable doubt
1. That the deceased died.
2. That his/her death was caused by the accused.
3. That he/she intended to either kill the victim or cause him/her grievous bodily harm.

Learned Counsel relied on the case of ANSELEM AGU V. THE STATE (2017) 10 NWLR (PT. 1573) 191 to buttress his argument. Learned Counsel referred to the portion of the Judgment of the Trial Judge at Page 59, it reads:
“The mere retraction of the statement will not stop me from convicting him. I am convinced based on the facts placed before and the statement of the accused which I scrutinized effectively that it was the accused that killed his father in order to get control over the cows” — “In passing the sentence there taking into consideration accused prayer for leniency but the offence is a mandatorily one moreover convict deserves no mercy for killing his father for the sake of getting cows only that are not his, secondly there was no attempt of his life by his father instead his father advised him to stay till they have family meeting and have collective opinion on it. Convict is sentence to death by hanging till he dies. Soul rest in peace.”

Learned Counsel submitted that from the above excepts, the Trial Court adopted a procedure unknown to our law by not pronouncing its findings of guilt on the Appellant.

What the records show is not a verdict but an introspection of what the Trial Judge intends to do. He cited Section 272(1) of the Constitution of the Federal Republic of Nigeria 1999 on the Jurisdiction of the High Court to hear and determine Civil and Criminal Matters. He submitted that by the clear provisions of Section 272 (1) above, the fate of the Appellant was not determined by the Trial Court. The fate of any person in a criminal proceeding in respect of an offence is only determined where a finding of guilt or acquittal is made by the Court if the Trial Court found the Appellant guilty, it must say so in clear terms before sentencing. And failure to do that is fatal and cannot be remedied except by way of retrial. The Learned Counsel further submitted that the failure to convict is not a mere irregularity but the omission of a vital part of a Trial and in its absence, a sentence cannot be lawfully recorded or carried out. He relied on the following cases; OBENE MOORE V. AKESSEH TAYE 1 W. A. C. A 242 and POLICE V. MARTEIFIO 9 W. A. C. A. 40 at 43.

Learned Counsel submitted that throughout the printed record there is nowhere the Appellant was

convicted of the charge which he stood Trial. He said Section 272(1) of the 1999 Constitution is a mandatory provision where a verdict of conviction is not made by a Trial Court as in instant case, the Trial is nul abinitio. He relied on the case of ENGR. GOODNEWS AGBI & ANOTHER VS. CHIEF AUDU OGBEH & 4 ORS (2003)15 NWLR (Pt. 844)530 where Oguntade JCA stated thus:
“In my respectful view to speak of a conviction there must be a determination of guilt by an act of a competent Court and this is irrespective of whether or not a sentence is imposed even though the sentence normally follows a determination.”

See also ALHAJI SULEIMAN MOHAMMED VS. OLAWUNMI (1993)4 NWLR (Pt. 287)254, Learned Counsel further relied on Section 269(1) of the Criminal Procedure Code (C.P.C) which provides:
1. Every Judgment shall contain the point or points for determination, the decision thereon and the reasons for the decision and shall be dated and signed or sealed by the Court in open Court at the time of pronouncing it.
2. If the Judgment is a Judgment of conviction it shall specify the offence of which and the Section of the Penal Code or other law under

which the accused is convicted and the punishment to which he is sentenced.
3. If the Judgment is a Judgment of acquittal it shall state the offence of which the accused is acquitted and direct that he be set at liberty.

The Learned Counsel submitted that going by the aforementioned Section 269 (1) & (2) of the CPC and the Supreme Court decision in ALHAJI SULEIMAN MOHAMMED V. OLAWUNMI (Supra), the trial and sentence of the Appellant cannot stand as it is a nullity.

Before responding to the Appellant brief of argument, the Respondents Counsel strenuously dealt with the issue of prove beyond reasonable doubt vis a vis the requirements of Section 221(b) of the Penal Code. The Learned Counsel equally considered the evidence of the prosecution witnesses particularly Pw3 and Pw4. And the confession statement of the Appellant which was tendered in evidence without objection. He concluded that the prosecution had proved its case against the Appellant beyond reasonable doubt.

It is important to stress a point here, that is the fact that this appeal is not related to whether or not the prosecution had proved its case beyond reasonable doubt.

Rather it has to do with whether or not the Appellant was duly and properly convicted by the Trial Court before he was sentenced. The vexed issue here is the conviction and sentence of the Appellant, whether there was a conviction before sentence.

The Respondents Counsel submitted that the arguments of Counsel to the Appellant is not supported by any known legislation and he urged the Court to discountenance same and sustain the flawless conviction of the Appellant. He submitted further that there is no known, legislation in Nigeria which requires that a Court must make a pronounce thus;
“I find the accused guilty” before sentencing. He submitted that the operative word of Section 272(1) of the Constitution are “to hear and determine”.

He argued that what the Constitution requires the Trial Court to do was to hear and determine the charge against the Appellant, which he did. He said the prosecution witnesses testified at the Trial and the Appellant also testified. See Pages 26, 27, 29, 30, 33 and 34 of the record. The Trial Court made a determination of the issues raised showing that the accused was guilty as charged. The Judgment of the Trial

Court must be read as a whole and not in bits to arrive at the conclusion as to whether the Learned Trial Judge made a determination of the fate of the accused in relation to the charge against him. Learned Counsel submitted that each Trial Court has its own style of writing Judgments. There is no universal rule as to the style of writing Judgment. All that is required is that the Judgment should meet the standard laid down by the Courts. See OMOLOLA VS STATE (2009)4 NCC 89 and ANYANKPELE VS NIGERIAN ARMY (2000) 2 CLRN 264, where the Court stated the contents of a good Judgment thus;
a. A resume of the type of action or charge.
b. The claim or charged well set out.
c. A review of the totality of the evidence led.
d. Perception and evaluation of the whole evidence.
e. A consideration of the legal submission made and/or arising and findings of law on them.
Conclusion. See also UMEANIA Vs EMODI (1996)2 NWLR (Pt. 430)348 and STEPHEN Vs STATE (1986)5 NWLR (Pt. 46) 978.

Learned Counsel submitted that none of the above ingredients is lacking in the Judgment of the Lower Court to warrant an interference by this Court. And that the

conclusion of the Judgment of the Lower Court before it sentenced the accused person, reveal a finding that the Appellant was guilty of culpable homicide which he was charged with. He referred to Page 59 of the record which was earlier produced in this Judgment and he concluded that it is obvious and certain that the Trial Court found the Appellant guilty of culpable homicide for killing his father as charged.

The Respondents Counsel submitted that in the unlikely event that this Court finds merit in the Appellant’s Contention in his Brief of Argument that, “It is clear that throughout the entire proceedings or trial which lead to the sentence of the Appellant there is nowhere on the printed record that the Appellant was convicted of the charge which he stood trial” then he urged the Court to treat same as a slip which is a mere irregularity incapable of vitiating the sentence. He relied on Section 382 of the CPC which provides that no sentence passed by a Court of competent Jurisdiction can be reversed or altered on appeal on account of any error, omission or irregularity in the summons, warrant, Judgment etc. or other proceedings before or during the

trial under the criminal procedure code unless the Appeal Court think failure of Justice has in fact been occasioned by such error or irregularity.

The Learned Counsel submitted that the Appellant has not shown that an error in the Judgment caused a failure of Justice in any manner. And the entire Judgment does not reveal a failure of Justice to warrant an interference with the Judgment of the Trial Court. The Learned Counsel cited the Supreme Court case of ONYEJEKWE Vs STATE (1992)4 SCNJ 1 where the Court declared the trite position of our criminal law that once it is clear from evidence led and/or finding of a Trial Court that the Appellant has been found to have committed the offence charged, the failure to record the conviction should not prevent the Appellate Court from so holding. It should be regarded as an irregularity or slip and not an illegality.

that it has occasioned a miscarriage of Justice. See also FADLALLAH Vs AREWA TEXTILE LTD (1997)8 NWLR (Pt. 518)546 and EZEOKE Vs NWAGBO (1988)1 NWLR (Pt. 72)616.

Learned Counsel concluded that there is no such grave error occasioning a miscarriage of Justice to warrant a reversal of the guilt of the accused as found by the Lower Court.

I have critically considered the argument and submissions with statutory authorities and decided case cited and referred to in the briefs of the respective Learned Counsel, and I must say that the issue in contention is crystal clear. This is because having read the entire printed record and in particular the Judgment of the Trial Court at Page 50 to 59, it is not in doubt that the Judgment contain all the essential ingredients of a good Judgment as enunciated in the case of ANYANKPELE Vs NIGERIAN ARMY (SUPRA), UMEANIA VS EMODI (Supra) and STEPHEN Vs STATE (SUPRA).
The Judgment contain the resume of the charge levelled against the Appellant i.e. Culpable Homicide, the charge is well set out and a review of the evidence led by the prosecution and the Appellant himself. It also contains an evaluation of the evidence

and consideration of the legal submissions made by the prosecution Counsel. There is also findings of law and conclusion. From the evidence led and the findings of the Trial Court, it is clear that the Appellant has been found to have committed the offence charged i.e. culpable Homicide contrary to Section 221 of the Penal Code. I am in agreement with the submission of the Respondent’s Counsel that there is no required format of writing a Judgment. Every Judge has his own style of writing a Judgment. What is important is that a Judgment should contain the essential ingredients of a good Judgment. Therefore, the Appellate Court is not concerned with any particular style of writing a Judgment. But what the Appellate Court is concerned with is whether the Judgment captures the issues before the Trial Court and there was proper application of the Law to the facts of the case. See ONUOHA V STATE (1988)3 NWLR (PT.83)460, IGAGO VS STATE (1999)12 SCNJ 140, NKADO VS OBIANO (1997)5 SCNJ 33, AWOPEJO VS STATE (2001)12 SCNJ 293.

Like I mentioned earlier in this Judgment, the vexed issue is the conviction of the Appellant before sentence. A conviction is no more than a

finding of guilt. To convict someone of an offence is to find him guilty of the offence charged. It is a common practice for a Court to use the phrase: “I find you guilty of the offence of culpable Homicide contrary to Section 221 of the Penal Code and I convict you accordingly”. But it is settled law that where such express term are not used, the Judgment of the Trial Court will not be impugned on that ground provided it is apparent from the record that the verdict of the Court upon the accused is that of guilty. See INAJO Vs STATE (1980)1 NCR 170.
In this instant appeal at Pages 57 – 58 of the record, the Learned Trial Judge stated thus;
“In this light of all said I am of the considered view that the confessional statement of the accused person, the testimonies of Pw2, 3 and 4 had strong each other and shows that it was the accused and nobody else committed the act…”
And at Page 59 of the record the Learned Trial Judge stated thus;
“There mere retraction of the statement will not stop me from convicting him, I am also convinced based on the facts placed before me and the statement of the accused which I scrutinized

effectively that it was the accused that killed his father on order to get control over the cows” ———“In passing the sentence there taken into consideration accused prayer for leniency but the offence is a mandatory one, moreover convict deserve no mercy for killing his father for the sake getting cows only that are not his, secondly there was no attempt of his life by his father instead his father advised him to stay till they have family meeting and have collective opinion on it. Convict is sentenced to death by hanging till he dies. Soul rest in peace.”
From the portion of the Judgment quoted above there is no any iota of doubt that the verdict of the Court upon the Appellant is guilt. More so, the Learned Trial Judge stated thus;
“The mere retraction of the statement will not stop me from convicting him…” and he also states that “moreover the convict deserved no mercy for killing his father for the sake of getting cows only that are not his …”
There is therefore a clear finding of guilt and a conviction of the Appellant. In EKPO VS R (1947)12 WACA 153 which is on all fours with the instant case, the Appellant was sentenced to death

for murder. His appeal was predicted mainly on the ground that the Court did not convict him before sentencing him. It was held that although no verdict of guilty of murder was seen on the record, evidence and findings show conviction for murder, see ONYEJEKWE Vs THE STATE (Supra).
Similarly, in this instant appeal evidence and findings show clearly a conviction for the offence of Culpable Homicide contrary to Section 221 of the Penal Code. There is therefore no reason to disturb the findings and sentence imposed on the Appellant. There is equally no complaint that a miscarriage of Justice have been occasioned to the Appellant, consequently it is of no use to resort to mere technicalities, see OKONJO Vs DR. ODJE & ORS (1985)10 SC 267 @ 268 and NISHIZAWA LTD Vs JETHWANI (1984)12 SC 234 @ 279. On this note, the sole issue is resolved against the Appellant and the Appeal is accordingly dismissed for lacking in merit. The Judgment of High Court of Justice Kebbi State Birnin Kebbi Judicial Division delivered on the 27th day of June, 2018 in suit No: KB/HC/9C/2016 is hereby affirmed.
Before I conclude, let me refer to the dictum of the Learned Jurist Oputa

JSC (of blessed memory) in the case of JOSIAH Vs THE STATE (1985)1 NWLR (Pt. 1)125 @ 141-142, he stated thus:
”In deciding whether to allow the appeal and acquit and discharge an Appellant, the Court must consider the surrounding circumstances in the interest of Justice. Any order allowing this Appeal and also acquitting and discharging the Appellant will not be an order made in the interest of Justice. And Justice is not a one-way traffic. It is not Justice for the Appellant only. Justice is not even only a two-way traffic. It is really a three-way traffic, Justice for the Appellant accused of a heinous crime of murder, Justice for the victim, the murdered man, the deceased, whose blood is crying to heaven for vengeance, and finally, Justice for the society whose social norms and values had been desecrated and broken by the Criminal Act complained of. It is certainly in the interest of Justice that the truth of this case should be known and that if the Appellant is properly tried and found guilty that he should be punished. That Justice which seeks only to protect the Appellant will not be even-handed Justice. It will not even be Justice tempered with

mercy.”

ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the privilege of reading in draft the lead judgment of my learned brother, Talba, JCA. I fully agree with his reasonings leading to his conclusion that there are significant signposts to allow a reasonable finding that the Appellant was or ought to be deemed to have been convicted before the pronouncement of the imposed sentence of the lower Court on him. For all the other admirable and elaborate findings of my learned brother, which I hereby adopt, I too dismiss this appeal for being devoid of any merit. I also abide by all the consequential orders.

FREDERICK OZIAKPONO OHO, J.C.A.: I had the opportunity of reading the draft of the Judgment just delivered by My Learned Brother, ABUBAKAR M. TALBA – JCA and I am in agreement with his reasoning and conclusions in dismissing the Appeal as Lacking in Merit. I abide by all other consequential orders made thereto.

Appearances:

Chris Ohene, Esq. For Appellant(s)

Ostia Solomon Mbamalu, Esq. For Respondent(s)