CHRISTIAN IGBA V. THE STATE
(2013)LCN/6220(CA)
In The Court of Appeal of Nigeria
On Thursday, the 23rd day of May, 2013
CA/MK/73A/2011
JUSTICES
JA’AFARU MIKA’ILU Justice of The Court of Appeal of Nigeria
SAMUEL C. OSEJI Justice of The Court of Appeal of Nigeria
MOHAMMED A. DANJUMA Justice of The Court of Appeal of Nigeria
Between
CHRISTIAN IGBA Appellant(s)
AND
TH E STATE Respondent(s)
RATIO
WHETHER OR NOT IT IS THE DUTY OF THE APPELLATE COURT TO CHOOSE WHICH ARGUMENT TO ACCEPT OR REJECT IN AN INCOHERENT ARGUMENT
It is not the duty of an appellate court to choose which argument to accept or reject in an incoherent argument. Ideally, when an appeal is against the decision of a trial court the appellant is presumed to be opposing the decision appealed against, while the respondent is supportive of the decision of the lower court unless there is a cross-appeal”.
See also the Supreme Court case of N.B.C.I. vs INTERGRATED GAS (NIG) LTD (2005) ALL FWLR (PT 250) 1 at 20 where the court also confirmed that the role of a respondent is to support a judgment appealed against and not to criticize it. See AJOMALE vs YADUAT (NO 2) (1991) 5 NWLR (PT 191) 266 or (2003) FWLR (PT 182) 1902. PER OSEJI, J.C.A.
SAMUEL C. OSEJI, J.C.A.: (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Justice Benue State, Makurdi Division, delivered by Hon. Justice Tine Tur on the 17th day of June 2010 wherein the appellant was convicted with two other persons for the offence of Criminal Conspiracy and Armed Robbery.
The charge against the appellant and three others as shown at page 71-73 of the record reads thus:-
HEAD ONE
“That you Owoicho Brown Innocent, Christian Igba, Solomon Gbaji Ayoosu and Kingsley Orjime who is now at large on 9/6/2006 at about 7.00pm at P2, 2nd Avenue, Federal Housing Estate North Bank, Makurdi within the jurisdiction of this Honourable Court conspired to do on illegal act to wit; attack and rob one Barrister Peter S. Abaagu and his family and to rape Miss Mwuese Anshase at the said address making use of guns and other dangerous weapons to prosecute the said agreement and the same was carried out pursuant to your conspiracy. You thereby committed an offence punishable under section 5 of the Armed Robbery and Firearms (Special Provision)Act and Section 79 of Penal Code Law.
HEAD TWO
That you Owoicho Brown Innocent, Christian Igba, Solomon Gbaji Ayoosu and Kingsley Orjime who is now at large on 9/6/2006 of about 7.00pm at P2, 2nd Avenue, Federal Housing Estate North bank, Makurdi within the jurisdiction of this Honorable Court did an illegal act to wit; attacked barrister Abaagu and his family at gun point and other dangerous weapons and robbed him of the sum of N50,000.00 and various items including Nokia 9500, Nokia 6600 Nokia 7650 and a Philips Stereo set. You thereby committed an offence punishable under Section 1(2)(b) of the Robbery and Firearms (Special Provision) Act.
HEAD THREE
That you Christian Igba on 9/6/2006 at about 7.00pm at P2, 2nd Avenue, Federal Housing Estate North Bank, Makurdi in the residence of Barrister Peter S. Abaagu and within the jurisdiction of this Honourable Court had sexual intercourse with Miss Mwuese Anshase against her will by coercing her to act by the use of guns and other dangerous weapons-handled by you and members of your robbery syndicate. You thereby committed an act punishable under Section 283 of the Penal Code law of Northern Nigeria applicable to Benue State
The facts are that one Barrister PS Abaagu (PW1) lives with his family at No B2, 2nd Avenue, Federal Housing Authority Estate, North Bank, Makurdi Benue State, on 9-6-2006, he returned home at about 7pm- 8pm where he met his sister in-law and daughter in the sitting room. He proceeded to his bedroom and settled down to watch the opening ceremony of the world cup match and while doing so he heard a scream from the sitting room and as he opened his bedroom door to know what was happening, he met the appellant standing there with a pistol in his hand. Half of his face was masked with handkerchief and he was wearing a round neck polo shirt. At the sitting room there were two other men and the one with a rifle used the butt to hit him on the face as he tried to look at him and he fell down. The appellant marched him on the head and told him not to move. By then one of them (2nd accused) was busy raping his sister in law. They then led him to his bedroom where he gave them the N50.000 he had at home. They also took his Nokia N9500 communicator, Nokia, 7650 and Nokia 6600. They also took away his Phillips Stereo DVD Player, Seiko wrist watch and a bottle of perfume. Thereafter the robbers herded him, his daughter, sister in law and the gateman into the bedroom before they left. He reported the matter to the police that same night. Subsequently, he was invited by the police to identify some recovered stolen items during which he identified his phones and the stereo set. While he was in the office of the commissioner of police, the appellant was brought and he immediately recognized him. The appellant also started shaking when he saw the PW1. Also, through the calls made with his phone after the robbery, the other accused persons were arrested. The appellant denied the charge at the lower court. He said he had nothing to do with the robbery at the PW1’s house. The Nokia N9500 linked to him was bought from one Kingsley for N35,000 and he paid N9000 deposit he later sold the same phone to Christian Igba (2nd accused) for (N50,000).
At the hearing which commenced in the lower court on 4-7-2007. The prosecution called three witnesses through whom exhibits were tendered and admitted in evidence. The appellant and two others charged with him testified in their own defence but called no witness.
Thereafter, both counsel for the prosecution and the defence in their address made oral submissions to the court. In the judgment delivered on 17-6-2010 the appellant with two others were convicted on counts 1 and 2 for the offence of conspiracy and armed robbery. Aggrieved with the decision of the lower court, the appellant filed a notice of appeal on 5-7-2010.
Aggrieved with the decision of the lower court the appellant filed a notice of appeal containing 6 grounds on 19-8-2010. The 6 grounds shorn of their particulars read thus:-
GROUNDS OF APPEAL
(1). The trial court erred in law and proceeded in that error to convict and sentence the appellant to death on count one and two based on circumstantial evidence and this error occasioned a miscarriage of justice. (2). The trial court erred in law when it convicted and sentenced the appellant to death for criminal conspiracy and armed robbery and went ahead to discharge and acquit the appellant on charge of rape even though the facts giving rise to the three count charges were from one and the same incident which was not proved beyond reasonable doubt by the prosecution and this occasioned a miscarriage of justice.
(3)The trial court erred in law and proceeded in that error to convict and sentence the appellant to death and this occasioned a miscarriage of justice when it held thus:
“The defence counsel never cross examined PW1, PW2 and PW4 to show that the 1st, 2nd and 3rd accused persons could not have been at the scene of crime as alleged on 9/6/2006 at 7pm”
(4)The trial court erred in law and proceeded in that error when it convicted and sentenced the appellant to death as it held that:-
“Learned counsel should have exposed PW1 and PW2’s error of observation, recognition, resemblance or reconstruction of the events of 9/6/2006 which, I am afraid they did not. The fact that PW2 could not recall whether the parade was held at the Police Headquarters, inside or outside a room etc to me does not discredit the evidence of PW2 regarding the identity of the 2nd and 3rd accused persons”. ‘
(5) The trial court erred in law when it convicted and sentenced the appellant to death even though the prosecution did not establish the allegations of criminal conspiracy and armed robbery against the appellant and this occasioned a miscarriage of justice.
(6) The trial court erred in law when it convicted and sentenced the appellant to death based on circumstantial evidence which was not strong and positive enough to warrant such conviction and sentence.
It suffices to note that by a motion on notice filed on 14/2/13 the appellant prayed for leave of this court to rely on the record of appeal compiled in respect of Appeal No CA/MK/73C/2011 BROWN OWOICHO & 2 ORS. VS. STATE and the said leave was granted on 4-3-13. (BROWN OWOICH & 2 ORS VS STATE)
Briefs of argument were subsequently filed and exchanged by the parties. The appellant’s brief dated and filed on 7-7-2011 was settled by John Ioryina Esq. while the respondent’s brief dated 30-11-12 and filed on 4/12/12 was settled by J.S. Tarpav, Esq. principal state counsel, Ministry of Justice, Benue State. At the hearing of the appeal on 4-03-2013 both parties duly adopted and relied on their respective briefs of argument.
In the appellant’s brief of argument two issues were formulated for determination from the six grounds of appeal as follows:-
(1) “Whether the appellant was properly identified and linked to the alleged robbery of 9/6/2006 as one of the robbers that robbed PW1 and raped PW2 to warrant the honourable court to pronounce a sentence of death to the appellant.
(2) Whether the prosecution proved his case beyond reasonable doubt to warrant the trial High Court to pronounce o sentence of death on the appellant.
The respondent on the other hand formulated one issue for determination. To wit:-
Whether the involvement of the appellant in this case by being in possession of Exhibit E2 (one of the stolen phones) Nokia 95 communicator which he brought from 1st accused (Brown Owoicho) would warrant or sustain a verdict of death sentence against him.
In the consideration of this appeal I will invariably deal with the two issues raised by the appellant in his brief of argument as well as the respondent’s sole issue.
ISSUE 1
Dwelling on this issue, John Ioryina of counsel for the appellant submitted that it is a fact that the appellant was not arrested at the scene of crime of the alleged robbery on 9-5-2006 and it was only the evidence of PW1 and PW2 that attempted to describe him.
Learned counsel went ahead to review the evidence of PW1 and PW2 on the issue and submitted that, since the evidence of the prosecution is not cogent enough to point at the guilt of the appellant, he ought to be discharged. He cited NDUKWE VS THE STATE (2009) ALL FWLR (PT.464) 2447 at 1451; IKEMSON VS. THE STATE (1989) 1 CCRN 1 AND OTTI VS. THE STATE (1993) 6 SCNJ (PT.11) 217.
Learned counsel further submitted that the alleged identification parade was arranged with undue advantage to the appellant because he alone was exposed to PW2 for the purpose of identification hence the PW2 stated that she did not do anything concerning identification parade for the 1st accused. He added that PW2 contradicted herself when in her examination in chief she stated that the “rapist was dark in complexion and not too tall but slim” but under cross-examination she stated that “the man I identified at the parade was tall and dark in complexion”
Learned counsel contended that such inconsistency creates doubt which should be resolved in favour of the appellant. Also citing OSUAGWU VS. THE STATE (2009) ALL FWLR (PT.460) 700 at 705 he submitted that the lower court did not properly take in to consideration the relevant factors to be addressed in an identification parade.
He also referred to the evidence of PW4 to contend that the prosecution did not properly link the appellant to the alleged robbery.
On issue 2, that is whether the prosecution has proved her case beyond reasonable doubt against the appellant to warrant the court to pronounce a sentence of death on the appellant.
Herein, learned counsel for the appellant submitted that the prosecution failed to prove her case beyond reasonable doubt to warrant a conviction and sentence of death on the appellant. He added that the 1st accused had consistently maintained in his statement and his evidence in court that he sold the phone to the appellant and this was no where controverted but the lower court went ahead to convict the appellant despite its own finding that the 1st accused was in possession of PW1’s Nokia 9500 Exhibit ‘A’ which Fidelis Attah used in calling his girl friend, Agnes in Lagos.
Learned counsel then submitted that since the appellant was discharged for the offence of rape by the lower court he ought not to be convicted for armed robbery and doing so amounts to miscarriage of Justice. He further submitted that the material witnesses allegedly linking the police to the arrest of the appellant, that’s Agnes and Fidelis Attah were not called to testify and failure to do so renders the evidence of the prosecution speculative and without foundation and the lower court ought not to have convicted the appellant based on such evidence.
In the respondent’s brief of argument there was no reply to the two issues raised in the appellant’s brief. Rather dwelling on the sole issue raised in her own brief of argument, J.S. Tarpav of counsel made a one paragraph submission which l am compelled to reproduce below:-
It reads,
LEGAL ARGUMENT/SUBMISSION
“As earlier submitted in the respondent’s brief of argument in respect of 1st accused/appellant at paragraph 4.04, we hereby restate that 2nd accused/appellant (Christian Igba) during the trial at the lower court clearly established that he did not take part in the said robbery of 9-6-2006. He testified that he bought one of the stolen phones (Exhibit F2) unknowingly from 1st accused/appellant (Brown Owoicho). See the testimonies of PW4, DW1 and DW2. The corroboration and the testimonies of the above witnesses all point to the fact that 2nd accused/appellant only bought Exhibit E2 from the 1st accused/appellant. This piece of evidence was not contradicted and we thus pray your lordships to terminate the prosecution of 2nd accused/appellant at this stage having considered the number of years he has already spent in prison since 2006”.
CONCLUSION
Conclusively, my lords, we urge this Hon. Court to terminate the prosecution of the 2nd accused /appellant”‘
This stance taken by the respondent is not only strange but rather novel to me. Bearing in mind that the position of a respondent, to all intents and purposes is to defend the judgment being challenged in the appeal. This status can only change where there is a cross appeal. See FEDERAL MORTGAGE FINANCE LTD VS EKPO (2005) ALL FWLR (PT 248) 1667 at 1686 where this court held inter alia that:-
“The argument of learned counsel for the respondent is neither here nor there. He cannot blow hot and cold at the same time. It is not the duty of an appellate court to choose which argument to accept or reject in an incoherent argument. Ideally, when an appeal is against the decision of a trial court the appellant is presumed to be opposing the decision appealed against, while the respondent is supportive of the decision of the lower court unless there is a cross-appeal”.
See also the Supreme Court case of N.B.C.I. vs INTERGRATED GAS (NIG) LTD (2005) ALL FWLR (PT 250) 1 at 20 where the court also confirmed that the role of a respondent is to support a judgment appealed against and not to criticize it. See AJOMALE vs YADUAT (NO 2) (1991) 5 NWLR (PT 191) 266 or (2003) FWLR (PT 182) 1902.
To my mind, the least the respondent would have done was to have conceded to the submissions or arguments in the appellants brief or at best not file any brief at all. This I believe would have been a greater path of honour rather than having gone through the rigours of trial at the lower court with all the facts of the case at the disposal of the prosecution who at that stage had the option of withdrawing the charge against the appellant only to now assume the position of discrediting the decision of the lower court. This is no doubt is a case of blowing hot and cold.
Nonetheless, it is to be borne in mind that the Appellant was tried with two others in the lower Court in charge No. MHC/106C/2006, (BROWN OWOICHO & 2 ORS VS STATE) where they were all found guilty of the offence of conspiracy and Armed Robbery. They were accordingly convicted and sentenced to death. The Appellant was however discharged and acquitted on the charge of rape.
Being dissatisfied with the said judgment each of the accused person filed a separate Notice of Appeal. Appeal No. CA/73C/2011 (BROWN OWOICHO INNOCENT) VS STATE) and Appeal No. CA/73B/2011 (SOLOMON YOOSU GBAJI VS STATE) had earlier been heard and determined by this Court wherein the whole trial in the lower Court was declared a nullity and their appeals were allowed on the ground that the PW4 being a vital witness for the prosecution was not made available for cross-examination by the defence counsel which thus resulted in a breach of fair hearing pursuant to Section 36(6)(d) of the Constitution of the Federal Republic of Nigeria 1999.
Having thus declared the whole trial in which the Appellant was convicted and sentenced a nullity. It will be naive and puerile to embark on a review of the proceedings and evidence adduced thereat by considering the issues raised in the Appeal and thus paint the picture of someone chasing the wind. Things were indeed fallen apart and the centre cannot be expected to hold anymore.
Consequently having allowed the other two appeals on the above stated ground, it follows that this appeal has no reason to be an exception.
This appeal is therefore allowed and the judgment of the High Court of Justice Makurdi, Benue State in charge No. MHC/106C/2006 delivered on 17-06-2010 convicting and sentencing the Appellant to death is hereby set aside, for being a nullity.
Accordingly the Appellant, Christian Igba is hereby discharged.
JA’AFARU MIKA’ILU, J.C.A.: I have perused the lead judgment of my learned brother Oseji JCA. I agree with the entire reasons given in it. The appeal is therefore allowed and the judgment of the High Court of Justice Makurdi delivered on 17/06/2010 in charge No: MHC/106C/2006 convicting and sentencing the appellant to death is hereby set aside as a nullity. The appellant Christian Igba is hereby discharged.
MOHAMMED A. DANJUMA, J.C.A.: Having had a preview of the lead Judgment just delivered by my brother, Oseji, JCA, I am persuaded to agree with my Lord that this appeal deserves to succeed.
The Appellant herein, whose conviction by the learned trial Judge was based on circumstantial evidence of being in possession of a hand phone said to have been part of the exhibit recovered from the Accused persons (being part of the proceeds of an alleged robbery) cannot have the conviction against him sustained by this court. There was no contrary proof or rebuttal that the phone was not in the innocent possession by purchase for value without knowledge that it was a stolen phone or an object obtained by his named vendor by force of arms or threat thereof.
Even then, for a conviction to have been had as done, there ought to have been proof of conspiracy, abetment, aiding or actual participation in the alleged robbery that culminated in the robbery involving the alleged phone. There was none.
In any case, the Appellant, who was not merely charged with being in possession of property reasonably suspected to have been stolen, was convicted for a heinous offence of robbery. A life snuffing conviction! The evidence of the recovery and tender of the phone, however, came through PW4 – who was not tendered for cross-examination and his evidence was inchoate, therefore.
For the myriads of yawning gap that existed in the proof of the charge against the Appellant herein, the presumption of his innocence must be protected. See, SHADE vs. THE STATE (2006) 5 LRCN 127 at 139 JJ – 149. This is more inevitable as his alleged co-travellers in the voyage or escapade of criminality in the joint trial in case MHC/106C/2006 have been acquitted by this court in Appeals No. CA/MK/73C/2011 and CA/MK/73B/2011 delivered today.
I must say that nemesis has its dry, even if the tardiness of the prosecutorial exercise of powers truncate Justice.
Appeal allowed and conviction and sentence quashed.
Appellant discharged.
Appearances
John Ioryina with A.M. TijahFor Appellant
AND
J.S. Tarpav PSC (MOJ) BenueFor Respondent
