FABIAN NWATURUOCHA v. THE STATE
(2010)LCN/3578(CA)
In The Court of Appeal of Nigeria
On Thursday, the 18th day of February, 2010
CA/A/251c/2008
RATIO
EVIDENCE: WHEN WILL A CONTRADICTION IN EVIDENCE BE FATAL TO THE CASE OF THE PROSECUTION
To contradict means to speak or affirm the contrary. In the law of evidence therefore, two pieces of evidence contradict each other when they are by themselves inconsistent, not just when there is a minor discrepancy between them. For a contradiction to be fatal to the prosecution’s case, it must be such that it goes to the substance and materiality of a fact or facts in issue in the charge as to raise doubt in the mind of the court about the quilt of the accused person. See IGBI V. STATE (2000) 3 NWLR (PT.648) 169; and OGOALA V. STATE (1991) 2 NWLR (PT.175) 509; ALANI V. STATE (1993) 1 NWLR (PT.303) 113. PER UWANI MUSA ABBA AJI, J.C.A.
CRIMINAL LAW: NATURE OF THE DEFENCE OF ALIBI
Alibi is a radical defence and simply means that an accused was somewhere else at the material time an offence was committed and he could not possibly be at the scene to partake in it. If it succeeds, it would mean that the accused was in no way involved in the crime unlike other defences which may still have implicated or connected him with a particular offence. PER UWANI MUSA ABBA AJI, J.C.A.
CRIMINAL LAW: DEFENCE OF ALIBI; DUTY OF THE ACCUSED TO DISCLOSE THE DETAILS OF THE ALIBI TO THE POLICE FOR INVESTIGATION
The facts of alibi are known to the accused and such witnesses as may be available to him. The accused therefore has a duty to disclose to the police the necessary details and particulars at the earliest opportunity so as to put the burden on the police to check on them and deal with same with finality. If he does not disclose this, the police cannot be expected to go on a wild goose chase. See NWABUEZE v. STATE (1988) 4 NWLR (Pt.86) 16, OZAKI v. STATE (1990) 1 NWLR (Pt.124) 92; ESANGBEDO v. STATE (1989) 4 NWLR (PT.113) 57 EYISI V. STATE (2000) 15 NWLR (PT.691) 555; and ANI V. STATE (2009) 16 NWLR (PT.1168) 443. PER UWANI MUSA ABBA AJI, J.C.A.
APPEAL: WHERE SHOULD AN ISSUE FORMULATED FOR DETERMINATION BE DERIVED FROM
Issues formulated for the determination of an appeal are derived from the Grounds of Appeal challenging the decision appealed against, PER UWANI MUSA ABBA AJI, J.C.A.
JUSTICES
UWANI MUSA ABBA AJI (Presided) Justice of The Court of Appeal of Nigeria
ABDU ABOKI Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO-SODIPE Justice of The Court of Appeal of Nigeria
Between
FABIAN NWATURUOCHA Appellant(s)
AND
THE STATE Respondent(s)
HON. JUSTICE UWANI MUSA ABBA AJI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of Hon. Justice I.O. Bello of the High Court of the federal Capital territory, Abuja, delivered on the 24th day of January, 2008, wherein the learned trial judge convicted and sentenced the Appellant to 11 years imprisonment and a fine of N250,000.00 for the offence of robbery punishable under Section 298 (b) (i) of the panel Code.
The case of the Respondent before the trial court was that the Appellant robbed one Taye Musa (PW1) a commercial driver of his commercial vehicle, Toyota Starlet car with Registration No AA445ABJ at gun point around 6.30pm on the 22nd October, 2008. The Appellant pleaded not guilty to the charge. To substantiate the case against the Appellant, the Respondent called two witnesses. The Appellant testified in his own defence and called two other witnesses. In a considered judgment delivered on the 24th day of January, 2008 the learned trial judge found the Appellant guilty and sentenced him to 11 years imprisonment and a fine of N250,000.00
Aggrieved by the said judgment, the Appellant appealed to this court vide a Notice of Appeal filed on the 10th April, 2008 on a lone ground of appeal. The Appellant filed two Additional Grounds of Appeal that was deemed properly filed by order of court on the 19th March, 2009.
The Appellant’s original and the two Additional Grounds of Appeal shorn of their particulars are hereby reproduced:
GROUNDS OF APPEAL
1.)Error in Law
2.)The learned trial Judge erred in law and proceeded on wrong principles of law in holding that the Respondent proved its case beyond reasonable doubt.
3.)The learned trial Judge erred in law in holding that the ingredients of the offence of Alibi were not satisfied by the Appellant and Judge proceeded on wrong principles of law in convicting the Appellant.
As is the practice in this Court, parties filed and exchanged briefs of argument. In the Appellant’s brief settled by Sam T. Ologunorisa, Esq., learned Counsel formulated two issues for the determination of the appeal, to wit:’
i)Whether in the circumstances of this case, the Respondent proved its case beyond reasonable doubt.
ii)Whether the ingredients of the defence of Alibi were satisfied by the Appellant and the learned trial Judge proceeded on wrong principles of law in convicting the Appellant.
iii)In the Respondent’s brief of argument settles by S. Aliyu, learned Director, Public Prosecution of the federation, for the Honourable Attorney General of the Federation and Minister of Justice, Federal ministry of Justice, Abuja, the following two issues were formulated:-
1.Whether from the facts and circumstances of this case, the learned trial Judge was right in convicting the Appellant for the charge against him.
2.Whether the Appellant’s sole Ground of Appeal is of facts to which leave of court is required and whether the Appellant’s brief flow from the sole Ground of Appeal filed before this Honourable Court.
At the hearing of the appeal, learned Counsel for the Appellant adopted and relied on the Appellant’s brief of argument dated and filed on the 24th/9/2008, and the Appellant’s Reply Brief filed on the 30th/4/2009 and urged the Court to allow the appeal and to set aside the conviction and sentence of the Appellant. The Respondent also adopted and relied on the Respondent’s brief of argument dated 19th/2/2009, and filed on the 23rd/2/2009, but deemed properly filed by order of court on the 19th/3/2009. He urged the court to dismiss the appeal.
I have carefully considered the issues as formulated by both the learned counsel for the Appellant and the Respondent. It appears to me that the issues formulated by the Appellant are apt as it encapsulates the Appellant’s complain in the appeal. The issues will be considered in the determination of this appeal. The Respondent’s issue 1 will be subsumed into the Appellant’s two issues. Issue 2 as formulated by Respondent attacked the Appellant’s sole ground of appeal and whether the issues formulated by the Appellant can be said to flow from such a Ground of Appeal. This issue does not strictly speaking flow from any of the Grounds of Appeal filed by the Appellant and its effect will be considered in the judgment.
Issue 1
Whether in the circumstances of this case, the Respondent proved its case beyond reasonable doubt.
In arguing this issue, Ologunorisa, Esq., for the Appellant submitted that a scrutiny of the facts of the case as admitted by the Respondent’s sprouts some puzzling issues that bother on proper identification of the Appellant and that, the answer to this question will determine whether the Respondent could be said to have proved their case beyond reasonable doubt. Learned Counsel produced the ingredients of the offence of robbery under Section 296 of the Penal Code, and submitted that the most essential element of the offence of robbery is that, the offender is said to be sufficiently near to put the other person in fear of instant death, or instant hurt or instant wrongful restraint. That the offender must of necessity be present at the scene of crime to have committed the offence of robbery. It is his view that from the circumstances of this case, the issue of identification of the Appellant will be a deciding factor as to whether the prosecution proved its case beyond reasonable doubt.
Learned Counsel for the Appellant referred to the evidence of PW1 both in chief, when he stated that ‘it was already dark’ and under cross examination when he stated that ‘it was not extremely dark’ and submitted that there exist a material contradiction in the evidence of PW1 about the time of the commission of the offence as PW1 was undecided whether it was already dark or not extremely dark. It is his view that this issue bothers on a positive identification of the Appellant.
He opined that, if it was already dark, how did PW1 see clearly to memorize and recognize the face of the Appellant a month later. It is also his view that, whether in the circumstances there was proper identification of the Appellant and whether there was need for an identification parade to have been conducted to ascertain the identity of the Appellant as the perpetrator of the alleged crime. He cited and relied on the case of DANLADI ABDULLAHI v. STATE (2005) ALL FWLR (PT. 263) 698.
On the test of contemparaneity, it is submitted that one month cannot be said to be contemporaneous or immediate enough for PW1 to recognize the Appellant as to dispense with the need for identification, parade as required by law and that failure to conduct same is fatal to the case of the prosecution. It is also his view that an identification parade is crucial in a charge of robbery when the scene of the robbery is dark citing the cases of WILFRED OKAFOR V. THE STATE (2006) ALL FWLR (PT.318) 719 AND ALMO V. STATE (2005) ALL FWLR (Pt.283) 63. It is further submitted that the proper and only valid by which the Respondent could have proved the identity of the Appellant as the person guilty of committing the robbery for which he was charged to the exclusion of every other reasonable hypothesis is through an identification parade, and referred to the case of OJUKWU v. THE STATE (2002) FWLR (Pt.98) 943. Learned Counsel urged the Court to resolve any doubt created in the identification of the Appellant in his favour, as the Respondent has not proved its case against the Appellant beyond reasonable doubt.
In his response, the learned Director of Public Prosecution for the Respondent submitted that the trial Court properly considered, evaluated and appraised submitted before arriving at its decision to convict the Appellant of the charge against him and he urged the court not to interfere with the findings of the trial court, citing in support, the cases of YAHAYA FAROUK CHEDI & 1 ORS V. ATTORNEY GENERAL OF THE FEDERATION (2006) 13 NWLR (Pt.997 308 AT 376; ALHAJI LASISI GBADAMOSI V. GOVERNOR OF OYO STATE & ORS 92006) 13 NWLR (Pt.997) 363 AT 274; and HILARY FARMS LTD & 2 ORS V. MV MAHTRA’ (SISTER VESSEL TO MV KADRINA) & 2 ORS (2007) 30 NSCQR 566 at 587.
It is submitted that the evidence of PW1, the victim of the robbery evidently points to the Appellant. That his evidence clearly stated how the Appellant boarded his vehicle from Dutse junction to Ushafa in Abuja, and how the Appellant suddenly pointed a gun at him and pushed him out of the car before driving the car away. That the witness (PW1) clearly identified the Appellant as the person who robbed him and maintain so even under cross examination. On the issue of alibi, it is submitted that PW1 stated that the Appellant went to the house of Kingsley Ehejirika around 8:pm while the crime took place around 6:30pm. It is his view that the police did investigate the alibi and arrived at the conclusion that the Appellant was in Kingsley Ehejirika’s house around 8:pm.
Learned Counsel referred to Section 298 of the Penal code and submitted that the Respondent proved the guilt of the Appellant beyond reasonable doubt. He referred to the cases of FATAI OLAYINKA V. BOLANLE V. THE STATE (2005) 1 NCC 221 AT 249. He submitted that driving with the Appellant in the front seat with PW1 from Dutse Junction to Ushafa was enough time for PW1 to have recognize the Appellant even before the incident took place. That the Appellant was properly identified by PW1.
It is view of learned Counsel that the issue of alibi being alleged by the Appellant was investigated by the police and found not to be true. That the Appellant went to his brother’s house at 8:pm while the crime took place around 6:30pm. It is also his view that the implication is that, it was after the robbery that the Appellant went to his brother’s house and that the Appellant did not deem it fit to call his said brother, Kingsley Ehejirika to butrass his defence of alibi. The case of FATAL SAKA V. THE STATE (2008) 3 NCC 145 at 162 was referred to and the court was urged to resolve the issue in favour of the Respondent.
The bone of contention on this issue as argued by the Appellant is that the Appellant was arrested about one month after the offence was committed without any identification parade being conducted to identify the Appellant. The issue of identification evidence was extensively considered by the Supreme Court in the case of SUNDAY NDIDI V. THE STATE (2007) ALL FWLR (Pt.381) 1617. The point made is that in criminal cases generally, the crucial is not ordinarily whether or not the offence was committed. The controversy more often rages over the identification of the person or persons alleged as the actual perpetrators of the offence charged. It therefore follows that identification evidence is that evidence which tends to show that the person charged is the same person who was seen committing the offence. In the case of SEGUN BALOGUN V. ATTORNEY GENERAL OF OGUN STATE (2002) 6 NWLR (Pt.763) 512, the Supreme Court per Uwaifo, J.S.C, made it clear that an identification parade will be useful when a witness claims to have seen an unfamiliar person who escaped from a crime scene in circumstances which require putting to test the witness’s power of recognition based on the physical features and/or other peculiarities of the person he claims to have seen. There must be real doubt as to who was seen in connection with the offence to require identification parade. An identification parade, his lordship further disclosed was absolutely unnecessary when the witness claims to have a familiar or definite person whom the perhaps names or knows his abode or family connection. In such a situation, it is the credibility of the witness that will be open to be tested at the appropriate time rather than the staging of a farcical identification parade for a person whose mind has been firmly fixed upon a particular suspect.
From what has been said above in relation to identification parade, it is clear that it is not conducted in vacuo or for no cause at all. Before the conduct of an identification parade is embarked upon in the cause of police investigation, the need for same must have arisen from information given to the police by an eye witness to the commission of the crime showing that he had same encounter no matter how brief with the perpetrator(s) of the crime, who the eye witness did not know before, and who the eye witness must have at least told the police he could identify if seen again or must have told the police his features that he noted and which marks him out from other persons.
In the instant case, the prosecution witness that qualified as eye witness in respect of the robbery is the victim himself that is, PW1 Taye Musa. He testified as follows:
”…, when the accused met me within Dutse Junction in Abuja and said he needed to charter my vehicle to Ushafa, we bargained and I agreed to carry him, and I was carrying him to the agreed destination, he asked me to park at given place because he wanted to ease (pass urine) himself, I said, it was already dark and he should (sic) patient till we reach an open hill area where there were people. The accused brought out a gun and placed it on my neck and asked me to stop. I parked the car, the accused opened the door of the car, pushed me out and asked me to run into a bush, the accused drove the car, and later I was able to get a vehicle that carried me and whereupon, I went and lodged complain with the police at Bwari Police Station, I also made the same complaint both at Dutse and Kubwa Police Station (sic). The incident took place around six pm and I recognize the accused very well…”
PW1 stated further under cross examination as follows:
”… The accused took my vehicle on Sharfa to Ushafa from Dutse Junction at an agreed cost of N700.00 at the up-hill of Usman Dam, accused asked me to stop and when I refused, he pulled out a gun and place same on my neck that was around after 6pm. It was not extremely dark and the accused was seated with me in front and I could clearly see his face. That is the reason why I can always recognize his face… It was a month after the incident that I saw him (accused) again at Dutse Junction, and that afternoon time”.
PW1 is the only eye witness and the victim of crime. There is no other person. PW2 was the investigation police officer.
It is settled law that identification evidence is the evidence tending to show that the person charged with an offence is the same person who was seen committing the offence. See BASSEY AKPAN ARCHIBONG V. THE STATE (2006) 14 NWLR (Pt.1000) 349; MAIKUDI ALIYU V. STATE (2007) ALL FWLR (Pt.399) 1123 and AMONSHIMA V. STATE (2009) 32 WRN 47.
Given the evidence of PW1 as highlighted above and the circumstances of this case, is identification parade necessary to identify the Appellant who was together with the PW1 and that the Appellant was the … who robbed him of his Toyota Starlet car under gun point? …, lack of evidence of identification linking the Appellant to the commission of the crime with which he has charged is not vital or necessary at all. Identification parade is basically conducted to enable an eye witness to the commission of a crime who never knew the person accused of a crime properly before, but had some degree of encounter with the said person during the commission of the crime and/or at the scene of crime pick him out from amongst other people in a line up.
The Appellant’s counsel in treating this issue under consideration stated that:
‘A scrutiny of the facts of the case as admitted by the Respondent’s witness sprouts some puling issues. These issues bother on proper identification of the Appellant. The answer to the above nagging question will determine whether the Respondent could be said to have proved their case beyond reasonable doubt”.
From the facts and circumstances of this case, I agree with submission of the Respondent’s counsel that the evidence of PW1, who is the victim of the said robbery evidently points to the Appellant. The witness clearly stated how the Appellant boarded his vehicle from Dutse Junction to Ushafa in Abuja; and how the Appellant suddenly pointed a gun at him and pushed him out of the car before driving the car away. That the witness clearly identified the Appellant as the person who robbed him.
PW1 testified that the Appellant met him and said he needed to charter his vehicle to Ushafa and they bargained and agreed to carry him. The Appellant sat with PW1 in front of the car and PW1 drove the car with the Appellant up to the point when Appellant asked him to stop and brought out a gun. He stated that the incident took place around 6pm and could recognize the accused very well. PW1 maintained his testimony under cross-examination and stated that, it was not extremely dark and the Appellant was seated with him in front and could clearly see his face and that is why he could always recognize him. Now therefore, given this background, fact, does the evidence of PW1 require identification parade of the Appellant? I think not.
The evidence of PW1 was such that no formal identification was necessary. The witness, (PW1) was able to spontaneously recognize the Appellant as the person who robbed him of his Toyota Starlet car, for the first time after the robbery when he (Appellant) boarded another vehicle and PW1 went and informed the Police who came and arrested the Appellant. There is or was nothing to support that PW1 was prompted or guided to pick on the Appellant as to make identification of the Appellant necessary. Recognition as in the instant case may or could be more reliable than identification of a stranger and I so hold.
See EYISI V. STATE (2000) 15 NWLR (PT.691) 555.
It is also contended by the Appellant that there exist material contradictions in this testimony of PW1 about the time of the commission of the crime when he testified as follows:-
”…he asked me to park at a given place because he wanted to ease (pass urine) himself. I said, it was already dark and he should be patient…”
Under cross examination he testified as follows:-
“…at the uphill of Usman Dan (sic) it was not extremely dark and the accused was seated with me in front….’
It is argued that PW1 was undecided whether it was already dark or not extremely dark. The contradiction alleged is not in the evidence of the prosecution witness. It is on the evidence of PW1 simplicer by the use of the words ‘It was dark’ and the adjective ‘not extremely dark’. Given the words used, is there such a contradiction in the testimony of PW1 that is fatal to the prosecution’s case? I think not. To contradict means to speak or affirm the contrary.
In the law of evidence therefore, two pieces of evidence contradict each other when they are by themselves inconsistent, not just when there is a minor discrepancy between them. For a contradiction to be fatal to the prosecution’s case, it must be such that it goes to the substance and materiality of a fact or facts in issue in the charge as to raise doubt in the mind of the court about the quilt of the accused person. See IGBI V. STATE (2000) 3 NWLR (PT.648) 169; and OGOALA V. STATE (1991) 2 NWLR (PT.175) 509; ALANI V. STATE (1993) 1 NWLR (PT.303) 113.
In the instant case, the words ‘already dark’ and ‘not extremely dark’ are not contradictory of each other. The later qualifies the former as to the extent of the darkness which means in the early park of the night, not deep into the night which is suggestive of the time when the crime was committed between 6:30 pm or thereabout. There is therefore no contradiction and I so hold.
From all that has been said before now, issue 1 as formulated in the Appellant’s brief is accordingly resolved against the Appellant I agree with the submission of learned Counsel for the Respondent that this is not a case in which identification evidence is necessary given the circumstances of the case.
Issue 2
Whether the ingredients of the defence of Alibi were satisfied by the Appellant and the learned trial judge proceeded on wrong principles of law in convicting the Appellant.
It is submitted by the learned Counsel for the Appellant, that the Appellant in his defence at the trial pleaded the defence of alibi in evidence that:
”I made statement to the police and in which I said I was at my working place. And I stated in the statement that I don’t know anything about the incident On the day the car was alleged snatched I was with my brother throughout after I close from the office after 6:pm.”
This the Appellant’s Counsel submitted means the accused was somewhere other than where the prosecution alleged he was at the time of the commission of the offence alleged. It is submitted that the duty of a Respondent where a defence of alibi is furnished by the Appellant is to investigate the alleged alibi. It is his view that the Appellant has given sufficient particulars of his where about and the duty on the Respondent is to investigate the defence of alibi. The Appellant’s counsel referred to the evidence of PW2, that the Appellant went to the house of Kingsley around 8:pm while the offence took place around 6:30pm and posed the following questions:’
a) If the Appellant was not at the house of his brother, where was he?
b) What was the closing hour of the Appellant from his established place of work (SCC NIG. LTD)?
c) What amount of time is required for the Appellant to leave his place of work at Bwari …arrive at junction, where he allegedly charted the vehicle of PW1?
d) What is the definition of around 6pm and around 8:pm? Appellant’s counsel referred to the evidence of DW2 Pius Okpara, that:
”I know the accused, he is my colleague at SCC Nig Ltd and worked under me as a welder, he is a very hardworking man. On 18th/11/04 the accused came to work and signed in a 7am and signed out at 6:pm.”
The underlying is for emphasis only.
Learned Appellant’s Counsel did not proceed to answer the posers as enumerated by him, but submitted that the Appellant was not anywhere than his place of work between 7:am and 6:pm on the day the crime was committed. He also submitted that the burden is on the Respondent, once alibi is raised to investigate and rebut such evidence in order to prove its case beyond reasonable doubt and that failure to investigate the story of the Appellant is tantamount to an admission on the part of the prosecution, citing the cases of MOHAMMED V. THE STATE (2005) ALL FWLR (Pt.266) 1342; ADEDEJI V. STATE (1971) ALL NLR 75.
It is submitted that the Appellant admitted going to Kinsley’s house as from 6pm at the close of work. That the prosecution did not adduce as from evidence to show the required time needed by the Appellant to move from his place of work to his brother’s house. He referred to the case of BASSEY V. THE STATE (2003) FWLR (PT.164) 292. It is submitted that there exist doubt in the evidence of the prosecution as to the exact time the Appellant left work and when he arrived at the house of his brother, Kingsley. He urged the court to resolve such doubt in favour of the Appellant, citing in support the case of THE STATE V. OGBUBUNJO (2001) FWLR (PT.1097). He urged the Court to resolve this issue in favour of the Appellant. It is submitted for the Respondent that the evidence of PW2 the investigating Police Officer clearly stated that the Appellant went to the house of Kingsley Ehejirika around 8pm while the crime took place around 6pm. It is submitted that the alibi presented by the Appellant that he was with his brother throughout after he closed from work after 6.30pm is clearly ruled out by the evidence of PW2, who investigated and found that the Appellant went to his brother Kingsley Ehejirika at about 8pm while the crime took place around 6:30pm, and that one hour thirty minutes is enough time for one to travel even out of Abuja and the implication is that it was after the robbery that the Appellant went to his brother’s house.
It is also submitted that the Appellant in his evidence before the lower court only succeeded in narrating to the court what transpired on the day he was arrested being 18th/11/2004 and did not tell the Court where he was on the day the crime took place being 22nd/10/2004.
That the date in issue is not 18th/11/2004 when the accused was arrested but the 22nd/10/2004 when the crime was committed.
Alibi is a radical defence and simply means that an accused was somewhere else at the material time an offence was committed and he could not possibly be at the scene to partake in it. If it succeeds, it would mean that the accused was in no way involved in the crime unlike other defences which may still have implicated or connected him with a particular offence.
The facts of alibi are known to the accused and such witnesses as may be available to him. The accused therefore has a duty to disclose to the police the necessary details and particulars at the earliest opportunity so as to put the burden on the police to check on them and deal with same with finality. If he does not disclose this, the police cannot be expected to go on a wild goose chase. See NWABUEZE v. STATE (1988) 4 NWLR (Pt.86) 16, OZAKI v. STATE (1990) 1 NWLR (Pt.124) 92; ESANGBEDO v. STATE (1989) 4 NWLR (PT.113) 57 EYISI V. STATE (2000) 15 NWLR (PT.691) 555; and ANI V. STATE (2009) 16 NWLR (PT.1168) 443.
In the instant case, the Appellant testified as follows:-
”…On the day the car was alleged snatched, I was with my brother throughout after I close form the office after 6:pm.”
Investigation by PW2, the Investigation police and PW1 the victim of the robbery incident indicate that the crime was committed between 6.30pm while according to PW2, the Appellant was with the brother Kingsley Ehejirika around 8:pm. PW2 testified as follows:-
”I discovered that accused went to the house of Kingsley around 8:pm and the alleged crime took place around 6:30pm…’
Between 6:30pm when the crime was alleged to have been committed and 8:pm when the Appellant was said to be with his brother, there is a time lapse of about one hour and thirty minutes. The timing is not in dispute and were stated by the Appellant and both PW1 and PW2. There is therefore nothing to speculate. I therefore agree with the Respondent’s Counsel that one hour, thirty minutes is enough time for one to travel out of the Federal Capital Territory; so the only logical deduction is that the Appellant was at his brother’s house around 8:pm after the robbery incident.
The evidence of PW2 is of no moment as he only told the court the whereabouts of the Appellant from 7:am to 6:pm on the 18th/11/2004 when he was arrested by the police and not when the robbery was committed on 22nd/10/2004. Even then, the witness did not know what happened when they closed from work after 6:pm.
It is trite law that where an accused person raises the defence of alibi, he must give a detailed particularization of where he was and what transpired in such places. This, the Appellant has not been able to do. Merely stating that ‘on the day the car was alleged snatched, I was with brother throughout after 6pm is not enough”. The Appellant also did not deem fit to call his brother Kingsley Ehejirika whom he said he was together to establish his defence of alibi.
In the circumstances therefore, the defence of alibi raised by the Appellant has been rebutted by the Respondent and have proved beyond reasonable doubt that it was the Appellant that robbed PW1 of his Toyota Starlet car on the 22nd October, 2004. His alibi is not well placed and does not therefore avail him. This issue is also resolved against the Appellant.
Issue No.2 formulated by the Respondent
Whether the Appellant’s sole Ground of Appeal is of facts to which leave of court is required and whether the Appellant’s brief flow from the sole Ground of Appeal filed before this Honourable Court.
Learned Counsel for the Respondent referred to the Appellant’s original sole ground of appeal which stated only Error in Law and then proceeded to state particulars which according to him “only complains about the evidence before the trial Court and evaluation of evidence, which he submitted is not an error in law”. He referred to Section 241 and 242 of the Constitution of the Federal Republic of Nigeria 1999 and the case of MRS. MATILDA ADERONKE BANK OF NIGERIA PLC (2007) 31 NSCQR 475 at 501 submitted that no single ground of appeal was even formulated from the Notice of Appeal.
It is further submitted that Notice of Appeal is the initiating process at the Appellate Court and once it is discovered to be incompetent or defective, just like the instant one, then there is no valid appeal, thus depriving the court of jurisdiction to entertain the matter and the only option for the court is to strike it out. Reference was made to the case Of CO-OPERATIVE AND COMMERCE BANK PLC v. JONAH DAN OKORO EKPERI (2007) 29 NSCQR 175 at 192.
The Court was thus urged to strike out the lone ground of appeal as it is defective and incompetent.
Learned Counsel also urged the Court to strike out or discountenance the two issues formulated by the Appellant as the issues do not flow or relate to any ground of appeal filed before the Court. He cited the following cases: ALHAJI GANIYU MARTINS v. COMMISSIONER OF POLICE (2005) 1 NCC 601 at 620; OWNER OF M/V GONGOLA HOPE & 1 OR v. SMURFIT CASES NIGERIA LTD & 1 OR (2007) 30 NSCQR 534 at 549 and DALEK NIGERIA LTD v. OMPADEC (2007) 29 NSCQR 1706 at 1738.
In his response, Ologunrisa, Esq., for the Appellant submitted by virtue of Sections 241 (1) (a) of the Constitution of the Federal Republic of Nigeria, 1999, an appeal shall lie from the decisions of the Federal High Court or a High Court to the Court of Appeal as of right in cases of final decisions in any civil or criminal proceedings before the Federal High Court or High Court sitting at first instance. He submitted that the judgment of the learned trial Judge delivered on the 24th day of January, 2008, in which he convicted and sentenced the appellant to 11 years imprisonment and to a fine of N250, 000.000k is a final judgment and therefore no leave of court is required to appeal against the said judgment.
On what constitute a final judgment within the con of Section 241 (1) (a) of the 1999 Constitution, it is submitted that once a party affected is stopped per rem judicata from bringing once again the claim already determined by the trial court before the same Court, the jurisdiction of the trial Court to entertain the same issue again is equally ousted. In other words, the trial court is rendered functus officio in reopening the issue or issues so settled. It is his view that the judgment of the trial Court is complete absolute and conclusive and is no longer subject to review or variations or setting aside by the same Court or tribunal which made the order. He cited in support the case of AFRICAN CONTINENTAL BANK LTD v. PACKO PLAST NIGERIA LTD (2004) ALL FWLR (Pt.234) 863 and further submitted that by virtue of the provisions of Section 241 (1) (a) of the 1999 Constitution, appeal is of right against final judgment and no leave of court is required before same can be filed, whether on points of law, mixed law and facts as well as interlocutory decision on point of law are as of right to the Court of Appeal. The following cases were cited in support; ETHIOPIAN AIRLINES v. ONU (2005) 1 NWLR (PT.936) 214, UBA v. SAMBA PETROLEUM CO (2003) FWLR (Pt.137) 1199; and IDAKULA v. ADAMU (2001) 1 NWLR (Pt.694) 322.
On the contention of the Respondent that no additional grounds of appeal were filed by the Appellant, it is submitted that the appellant filed additional grounds of appeal with leave of the court granted on the 19th March, 2009.
In fact, let me say that this issue No.2 as formulated by the learned Counsel for the Respondent should not have been an issue in the real sense of the word. Learned Counsel should have come by way of preliminary objection to the Appellant’s ground of appeal to contend that the ground of appeal is defective or incompetent and to urged the court to decline jurisdiction on the incompetent ground of appeal. What the Respondent did in the instant appeal was to formulate an issue which does not flow or relate to any of the Grounds of Appeal filed by the Appellant.
Issues formulated for the determination of an appeal are derived from the Grounds of Appeal challenging the decision appealed against, while objection to the grounds of appeal do not and could not relate to a matter decided in the judgment appealed against.
In the instant case, issue for determination formulated by the Respondent is not from the judgment appealed against. It is therefore a ground of objection.
In fact, it is now settled that a Respondent who has not cross appealed or filed a Respondent’s Notice of Contention, has no business formulating issue (s) for determination outside the grounds of appeal filed by the Appellant.
In the instant case, the Respondent has not cross appealed or filed a Respondent’s Notice of Contention, he therefore has no business formulating issues for determination.
Consequently, issue 2 formulated by the Respondent is hereby discountenanced with the arguments of counsel thereon.
Learned Counsel for the Respondent is under a misconception that the Appellant’s sole ground of appeal as contained in the Notice of Appeal filed on the 10th/4/2008 is the only subsisting ground of appeal.
The Appellant vide a motion on notice dated and filed on the 5th/11/2008, sought the leave of the Court to file and argue two additional grounds of appeal. The application was granted on the 19th/3/2009 and the Amended Notice of Appeal filed on the 5th/11/2008 was deemed properly filed and served on the 19th/3/2009.
Be that as it may having resolved all the issues against the Appellant, it follows therefore that, this appeal is unmeritorious, and same shall be and it is hereby dismissed. The judgment of the lower Court delivered on the 24th January, 2008 is hereby affirmed.
ABDU ABOKI, J.C.A.: I had the privilege of reading in advance the Judgment just delivered by my learned brother, Uwani Musa Abba Aji, J.C.A. I agree with the reasoning and conclusion contained therein. I also dismiss the Appeal and affirm the Judgment of the lower Court delivered on the 24th day of January, 2008.
AYOBODE O. LOKULO-SODIPE, J.C.A.: I agree.
Appearances
S.T. Ologunorisha, Esq., with E.O. Onyeme, Esq.For Appellant
AND
George Gang (SSC), FMOJFor Respondent
