JOHN ETIM & ANOR. V. THE STATE
(2013)LCN/6465(CA)
In The Court of Appeal of Nigeria
On Thursday, the 10th day of January, 2013
CA/OW/223/2010
Before Their Lordships
MOJEED ADEKUNLE OWOADEJustice of The Court of Appeal of Nigeria
HARUNA SIMON TSAMMANIJustice of The Court of Appeal of Nigeria
TIJJANI ABUBAKARJustice of The Court of Appeal of Nigeria
Between
1. JOHN ETIM
2. LAWRENCE I. NWOGUAppellant(s)
AND
THE STATERespondent(s)
RATIO
DISTINCTION BETWEEN THE CONCEPT OF IDENTIFICATION IN LAW AND RECOGNITION
In the case of Ndidi vs. State (supra), a valid distinction was made between the concept of identification in Law and Recognition. Recognition presupposes prior knowledge of an accused person, while identification connotes knowledge of the accused from the date of the incident. PER OWOADE, J.C.A.
REQUIREMENT TO SUCCEED IN RAISING THE DEFENCE OF ALIBI
In the case of Esangbedo vs. State (1998) 1 ACLR 109 at 114 the Supreme Court stated that:
“The law requires that for his defence of alibi to succeed in raising the doubt in his favour he ought to do certain things. He ought to raise that defence at the earliest possible opportunity. In that defence, he ought to give such details and particulars of his whereabouts that the police can investigate. This is the evidential burden of him in his defence of alibi.” PER OWOADE, J.C.A.
REQUIREMENT TO SUSTAIN A CONVICTION FOR ATTEMPTED ROBBERY
To sustain a conviction for Attempted Robbery, the intention to steal must be specifically proved or inferred from the conduct of the accused persons and/or the surrounding circumstances. The intention to steal could not be inferred in the circumstances of this case.
The position of the criminal law is that whenever the definition of the crime requires that some consequence be brought about by (the defendant’s) conduct, it must be proved, on a charge of attempting to commit that crime, that (the defendant) intended that consequence, and this is so even if, on a charge of committing the complete crime, recklessness as to that consequence or even some lesser degree of mens rea – would suffice. See R. vs. Mohan (1976) Q.B 1. PER OWOADE, J.C.A.
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of F.I. Duroha – Igwe J. in the Owerri Judicial Division of the High Court of Imo State delivered on 1/11/07 .
The Appellants were charged with the offence of armed robbery contrary to Section 1(2)(a) of the Robbery and Firearms Act Cap. 398 Vol. XXII Laws of Federation of Nigeria 1990.
In the court below, John Etim, 1st Appellant was the 1st Accused person. Ifeanyi Chikere (now late) was the 2nd Accused person and the 3rd Appellant Lawrence Ihenacho Nwogu (alias Acho was the 3rd Accused person.
The particulars of the offence were as follows:
“John Etim ‘M’, Ifeanyi Chikere ‘M’ and Lawrence Iheanacho Nwogu (alias Acho) ‘M’ on the 5th day of August 1999 at Federal Housing Estate, Owerri in the Owerri Judicial Division while armed with firearms did rob (sic) one Racheal Nsofor Ndulue the sum of N1,000 (One Thousand Naira)”.
The case of the prosecution is that on 5/8/99, at about 6.20 am, PW2 Rachael Chinyere Nsofor – Ndulue (Mrs), the complainant went to pick her car from her neighbour’s compound where she normally packs for security reasons. She stopped infront of her gate in preparation to alight and open her gate. At that moment, she saw a navy blue Peugeot 504 Saloon Car which looked like that of the Police. The number plate was hooded and the music emanating from the car was loud.
PW2 looked and saw the 2nd Accused person driving and 3rd Accused person sitting beside him. They stopped right behind her making an escape impossible. PW2 was still inside her car when 3rd Accused person walked up to her with a long gun. He pointed the gun to her and ordered her not to look at him. It dawned on her that armed robbers were visiting and she promptly complied with their instructions. They were not masked. By this account, 1st Appellant had a blue trouser on with ash coloured top. The 1st and 3rd Appellants had long rifles while 3rd Appellant had a chain of bullets hung round his chest, 2nd Accused was carrying a silver coloured short gun.
PW2 was ordered to drive into her house and she did so. 1st Appellant ordered her to go into the house and she obeyed while the 3rd Appellant followed behind. Inside the house, 1st Appellant asked to know the whereabout of her husband. PW2 replied that her husband was not in. The noise woke up the children and two of them walked into the sitting room and confirmed when asked by the Accused persons that their father traveled.
The three Accused persons pointed their guns at PW2 and asked her to lie face down. 1st and 2nd accused persons led her children at gun point away from the parlour to the kitchen area where they were held hostage. At this point, all the Accused persons were in the kitchen area. Her third son emerged and saw his mother alone in the sitting room. PW2 got up and ran out towards the gate and out to her neighbour’s (Chief Nathan Udogwu) and found his gate wide open she ran into the premises and raised alarm.” Armed robbers, armed robbers” 3rd Appellant rushed out and shot his gun in her direction. He missed and the police guard in Chief Odogwu’s house, PW3 replied with a gunshot. PW2 ran right inside her neighbour’s house as the door was open. Shortly after, she heard the vehicle with which the Accused came zoom off with reverse gear. PW2 used the telephone in Chief Udogwu’s house to phone men of “operation smash”. She heard another big bang as if something had fallen into the gutter followed by several shots. When PW2 emerged from Udogwu’s house, she saw that it was the Peugeot car belonging to the Accused persons that fell into the gutter. On going into her house, she discovered that the N1,000 (one thousand Naira) which she kept on her table was no longer there. The Registration number of the Peugeot Car is BX 889 LND. PW3 later recovered the car (Peugeot 504) and took it to the Police Station where he incidented the report. PW2 later lodged a report with the police. On 11/8/99, the Officer in – Charge Monitoring Unit informed PW2 that some arrests had been made and that she was to identify the robbers who attacked her. She waited in his office until she was asked to come out. Outside, she saw a formation of men and she was asked to identify her attackers. She was able to identify the 1st and 2nd Accused persons. She did not see 3rd Accused/Appellant in the formation of men on that day. Sometime in 2002, the 3rd Accused was arrested and the police again asked her to come and identify him. PW2 was able to identify the 3rd Accused person. Seven witnesses testified for the prosecution while all the Accused persons testified in their own defence and called three other witnesses.
Each of the Accused person put up different versions of alibi. In a considered judgment, the learned trial Judge rejected defence of alibi set up by each of the Accused. First, on the ground that particulars of the alibi was not supplied and second, that the eye witness account of PW2 and PW3 pinned each of the Accused persons to the scene of crime.
The learned trial Judge also found as a fact in favour of the Accused persons, that there was no evidence that the complainant’s PW2’s N1,000 was taken away by any of the Accused persons.
Consequent on the above finding, the learned trial Judge invoked the provision of Section 179 of the Criminal Procedure Law and convicted each of the Accused persons for the lesser offence of attempted armed robbery and accordingly sentenced each of them to imprisonment for life.
Dissatisfied with the judgment, the Appellants filed a Notice of Appeal containing three grounds of appeal before this court on 15/1/2008.
The 2nd Appellant, Ifeanyi Chikere was reported dead on the date the appeal was heard.
Appellants brief of argument dated 9/6/11 was filed on the same day. Respondent’s brief of argument dated 31/5/2012 was filed on 8/6/2012 but deemed filed on 10/10/12.
Learned counsel for the Appellants nominated three (3) issues for determination to wit:
“1. Whether the finding of the learned trial Judge that the appellants attempted to commit armed robbery is not perverse.
2. Whether the raising and application of Section 179 of the Criminal Procedure Act by the learned trial Judge without affording Appellants any opportunity to address her on same did not deprive Appellants of their right of fair hearing.
3. Whether upon the totality of the evidence led, the lower court was right to have concluded that Appellants were the assailants that went to the house of complainant on the day of the incident.
Learned counsel for the Respondent adopted the issues as formulated by the Appellants counsel. In deciding this appeal, I will re-arrange the issues formulated by the Appellants in this new order. Issue No. 3, as 1, Issue No. 1 as 2 and finally Issue No. 2 as 3. On lssue No. 1, that is evaluation of evidence, learned counsel for the Appellant reminded us that the duty of the prosecution is to prove every ingredient of the offence charged beyond reasonable doubt. That, on the identity of the appellant, the evidence relied on by the prosecution are those of the prosecutrix who testified as PW2 and Inspector Akwu Omede, PW3, both of whom identified Appellants in an identification parade.
Counsel referred to the case of Ndidi vs. State (2007) All FWLR (Pt 381) 1617 at 1638 where the Supreme Court cautioned that to ascribe value to the evidence of an eye witness in the matter of identification of a criminal, the courts in guarding against the case of mistaken identity must meticulously consider the following:
(a) Circumstance in which the eye-witness saw the suspect or defendant.
(b) The length of time the witness saw the subject or defendant,
(c) The lighting conditions
(d) The opportunity of close observation
(e) The previous contacts between the parties.
In this respect, learned counsel for the appellants re-enacted the scenery on the day of the incident between the PW2 and the appellants and wondered how the PW2 was able to make the explicit observation and how she could in her circumstance pinpoint their faces and features so clearly that she was able to identify them differently attired several days later.
Appellants counsel pointed out discrepancies in the evidence of the prosecution witnesses as to the time of the incident that, while PW2 claimed that she woke up by 6.20 am; PW3 said she came to take her car at 5.30 am. PW6 gave the time he received the distress call at about 6.20 am. Based on the above, Appellants counsel opined that the incident would have taken place between 5.55 am and 6.05 am.
Appellants counsel further pointed out that there was discrepancy in the evidence of PW2 as to whether it was 1st or 3rd Appellant that ordered her to drive through the gate. These discrepancies, according to counsel should have cast PW2’s story of identifying the Appellants as the assailants with very serious doubt.
Counsel submitted that given the circumstances of the situation, and applying a little knowledge of human frailties, capabilities and probable rational reaction, the vivid descriptions given by the prosecutrix were only couched, or at the very most embellished in her imagination. They are wild, rather out landish exaggerations that should not at all be elevated to the status of truthful assertions. The Supreme court, said counsel, has severally held that: when the testimony of a witness had reached or attained the height of insipid or impotent exaggerations it should be disregarded as mere petulance and treated with ignominy.
He referred to the cases of C & C Ltd. Vs. Okhai (2003) 12 S.C.N.J. 33 at 43, Patunbi vs. Olanloye (2004) 6 S.C.N.J 34 at 46, Ezemba vs. Ibeneme (2004) 7 S.C.N.J 136 at 152 – 153.
Counsel recalled that 6 days after the incident, on 11th August, 1999 PW2 a lawyer of many years standing was still so traumatized that she could not record her own statement (Lines 14 – 17 page 44, and Line 14 page 45 Additional Records) Counsel wondered how the PW2 could have remained calm in the very Heat of the Trauma to minutely record in our memory the details supplied to the court.
Learned counsel for the Appellants referred to the meaning of ‘Credible evidence” as enunciated by the Supreme Court in the case of Agbi vs. Ogbe (2006) All FWLR (Pt.329) 941 at 969 as “… the evidence worthy of belief and credit.
It must not only proceed from credible sense, it must be credible in itself in the sense that it should be neutral, reasonable and probable in view of the entire circumstances.
Appellants counsel submitted that PW2’s story is bereft of the quality that can ground a proof of her certainty of the identity of her assailants beyond reasonable doubt.
Appellants counsel pointed out that there were also discrepancies in between the evidence of PW2 and PW3 as to whether the driver of the assailant’s vehicle was 1st or 2nd Appellant.
Appellants counsel reiterated the story of the defence that 1st and 2nd Appellants claim that the prosecutrix saw them several times in police custody before the so called identification parade arranged by the police.
Counsel submitted that the story told by Appellants that the prosecutrix had viewed them in custody and in the office of the Police Commissioner as her assailants before the identification parade is a lot more probable than that of the prosecution.
Learned counsel for the Appellants referred to the evidence of DW1, Luke Onwu that 1st Appellant was with him between the hours of 6.00 am to 7 .00 am on the fateful day. That, the evidence of DW4 Ngozi Anyanwu also fixed the 2nd Appellant at her shed in the morning hours of the day of the incident.
Counsel submitted that the learned trial Judge did an evaluation of these pieces of evidence, but only as they relate to the plea of alibi raised by the Appellants at the trial. That, His Lordship bore down heavily on the evidence and statements of 1st and 2nd Appellants, Ngozi Anyanwu DW4 and Luke Onwu DW1, and found discrepancies as to time which she held were material enough to reject those evidence.
However, said counsel, the discrepancy in the times stated between complainant, PW1, PW3 and PW6 did not receive any mention.
He submitted that the Appellants have on preponderance of evidence, established not only that they were not the assailants that went to the house of the prosecutrix, but equally explained away how their car came to be at the scene of the incident.
Counsel submitted further that the conclusion that Exhibit Q was brought in after the matter was charged to court is perverse being contrary to the evidence on record. That, in the first place, PW1 did not say so.
Secondly, that statement was dated 26th August 1999, only twenty days after the incident and information to the High Court was prepared on 28th March 2000. Also, that Exhibit Q was produced from the custody of the prosecution. Counsel argued that if the mischief of the police has created a doubt in the prosecution’s case, the accused persons and not the prosecution should be given the benefit of doubt.
Counsel submitted that the reasonable conclusion to be drawn from this is that the trial court misplaced the onus of proof in this case.
And, that the law is settled that once onus of proof is misplaced, such judgment is unconstitutional, null and void and the accused person does not even have to prove any miscarriage of justice to have such judgment set aside.
He referred to the case of Alabi vs. State (1993) 9 S.C.N.J. (Pt. 1) 109 at 127 and urged that this issue be resolved in favour of the Appellants.
On issue No. 1, learned counsel for the Respondent submitted that PW2 gave account of the identification parade conducted by the police whereby she was able to identify the Appellants as those she saw during the incident. The evidence of PW2 was not contradicted.
Furthermore, said counsel, Exhibits N – N7 and the evidence of the photographer during the trial, proved to the court that the identification parade was well conducted.
Learned counsel for the Respondent further referred to the evidence of PW1 at page 161 of the original record where she said “the 3rd Accused person walked up to me with long gun resembling the gun used by policemen … .” And at Line 19, she said, “they were not masked”
The PW2, according to counsel was able to account for what each of the accused persons did from her observations.
Counsel submitted that there was no evidence to show that PW2 was blindfolded by the Appellants. That, from the time the assailants accosted the victim (PW2) to the time they shepered her into her compound and later to the palour was quite a reasonable period for a person to make a remarkable observation that can enable her identify the assailants, notwithstanding any amount of fear, her mind could interpret what was happening within her.
Learned counsel for the Respondent referred to the case of Ndidi vs. State (2007) 10 SCM 101 and said that the evidence of prosecution in this case was that of identification and not recognition. That, while Recognition presupposes prior knowledge of the accused person, identification connotes knowledge of the accused from the date of the incident.
It is in evidence, said counsel, that PW2 and PW3 have never seen the Appellants before the incident than during the incident and the identification parade.
In the instant case, the prosecutrix PW2 was not only able to vividly recollect and identify the Appellants on the day of the incident but also identified them in well conducted identification parades that were not faulted in any form during the trial.
In this respect, I agree with the learned counsel for the Respondent that in between the prosecutrix (PW2) and the Appellants, a case of proper identification in conformity with the law was proved and that contrary to the suggestion of the learned counsel for the appellants, it was not a case of recognizing a person that has been previously seen.
In the case of Ndidi vs. State (supra), a valid distinction was made between the concept of identification in Law and Recognition. Recognition presupposes prior knowledge of an accused person, while identification connotes knowledge of the accused from the date of the incident.
Also, the learned trial Judge was right in this case to have denied the defence of alibi to the Appellants on the ground either that the particulars and detail of their whereabouts on the day of the incident was not supplied in their earliest statements to the police and even where the particulars are inadequate were found to be false.
In the case of Esangbedo vs. State (1998) 1 ACLR 109 at 114 the Supreme Court stated that:
“The law requires that for his defence of alibi to succeed in raising the doubt in his favour he ought to do certain things. He ought to raise that defence at the earliest possible opportunity. In that defence, he ought to give such details and particulars of his whereabouts that the police can investigate. This is the evidential burden of him in his defence of alibi.”
In any event, the eye witness accounts of PW2 and PW3 fixed the Appellants at the scene of crime and thereby successfully dislodge their defences of alibi put up by the Appellants.
See Onyegbu vs. The State (1998) 1 ACLR 286 at 392, Njovens & Ors. vs. The State (1973) 1 NMLR 331 .
Issue No. 1 is resolved against the Appellants.
Appellants Issue No. 2 queries the conviction of the Appellants for the lesser offence of attempted robbery in the absence of specific evidence to support that conviction.
In arguing this issue, learned counsel for the Appellants reviewed the evidence of PW2 and submitted that in the entire evidence there was no suggestion that the assailants demanded any property, ransacked the house or properties of the complainant nor that they took any property at all but abandoned same in their bid to escape.
According to counsel, nothing at all suggests any intention to take, remove or go away with any property of the victim or any other person in the premises.
Counsel submitted that all that the appellants did was to ask for the whereabouts of the victim’s husband. This conduct, according to counsel is subject to several interpretations, none of which relates to an intention to commit armed robbery. The assailants, said counsel could have come to kill complainant’s husband, they could have had a score to settle with him, they could have wanted to assault him, kidnap him, threateningly deliver a message to him etc. No evidence, said counsel was led of any previous or subsequent conduct of the assailants suggesting any intention to forcefully remove property. It could therefore not be certainly said that the Appellants went into the victim’s house to commit robbery or to steal even though they were armed.
Learned counsel for the Appellants referred to the cases of State vs. Ajie (2000) 7 S.C.N.J. 1 at 12, Uka vs. Irolo (2000) 7 S.C.N.J. 137 at 168 and Adenugba vs. Okelola (2008) All F.W.L.R. (Pt. 398) 292 at 355 and concluded that the finding by the learned trial Judge that the Appellants went to the house of the complainant to rob is perverse being not supported by any evidence.
Learned counsel for the Respondent urged us to resolve Issue No. 2 in the negative and hold that the trial court did not err in law by convicting the Appellants for the lesser offence of Attempted Armed Robbery.
Counsel referred to the provision of Section 169 of the Criminal Procedure Law (CPL) Cap. 30 Vol. 2 Laws of Eastern Nigeria and submitted that where an accused person is charged with an offence and the evidence established an attempt to commit the offence he may be convicted as having attempted to commit that offence although the attempt is not separately charged.
Counsel submitted further that the trial court has powers to convict for a lesser offence where such offence is not expressly charged. He referred to the cases of Babalola vs. The State (1989) 4 NWLR (Pt. 115) 251, Ibrahim vs. State (1991) 4 NWLR (Pt. 186) 397, Younq Ukanwa Uguru vs. The State (2002) 9 NWLR (Pt. 771) 90.
Counsel added that evaluation of evidence and ascription of probative value remains the primary duty of a trial Judge and that the appellate court would not ordinarily interfere when such findings are supported by evidence on record.
He referred to the cases of Onwubuariri vs. Igboasoiyi (2011) 11 FWLR 1059 at 1073, Edoho vs. The State (2010) 6 SCM 52 at 63, Iwuoha & Anor. Vs. Nig. Postal Services & Anor. (2003) 4 SCNJ 258 at 278.
In deciding Issue No. 2, the point made by the learned counsel for the Appellants cannot be disregarded as being merely legalistic.
As a matter of fact, from the evidence on record, the intention of the assailants could not be pinned down to an intention to steal that is to take away the property belonging to the victim or any other person.
In law, when there is actually robbery, the intention to steal is assumed and consequently deemed proved. The situation is slightly different in the case of the offence of Attempted Robbery. In that case, the prosecution must still prove the mental ingredients of the completed offence, that is all the ingredients of the offence of Robbery including the intention to rob or to steal or remove property.
Therefore a conviction for the offence of Attempted Robbery as a lesser offence when Robbery is charged is not automatic. It would all depend on the state of evidence on record.
In the instant case, PW2 claimed that the Appellants removed a sum of N1,000 from her table but the learned trial Judge found to the contrary and there is no appeal by way of cross-appeal on that finding.
All that we are left with therefore from the record especially the account of PW2 is evidence of house breaking, burglary assault, threat to life and perhaps attempted murder. The learned counsel for the Appellants was right to have said that the conviction for Attempted Robbery as a lesser offence was in error. The conviction for Attempted Robbery could not in these circumstances be supported by evidence on record. The reason for this is that Attempt is an offence in its own right. To sustain a conviction for Attempted Robbery, the intention to steal must be specifically proved or inferred from the conduct of the accused persons and/or the surrounding circumstances. The intention to steal could not be inferred in the circumstances of this case.
The position of the criminal law is that whenever the definition of the crime requires that some consequence be brought about by (the defendant’s) conduct, it must be proved, on a charge of attempting to commit that crime, that (the defendant) intended that consequence, and this is so even if, on a charge of committing the complete crime, recklessness as to that consequence or even some lesser degree of mens rea – would suffice. See R. vs. Mohan (1976) Q.B 1. In the instant case, stealing, theft or taking away is part of the definition of the offence of Robbery, consequently the intention to steal or take away property must be proved to sustain the lesser offence of Attempted Robbery.
This is because, where the attempt charged is an attempt to commit a crime which in itself involves a specific state of mind (as in the instant case) then to prove the attempt, the prosecution must prove that the accused had that specific state of mind. In a charge of attempted robbery, the prosecution must proof intent to steal.
The case of Mohan (supra) itself demonstrates the point. M drove his car straight to a policeman, who managed to jump out of the way. M was convicted of attempting by wanton driving to cause bodily harm to the police man. The jury were directed that it was sufficient for the prosecution to prove that he was reckless as to whether bodily harm would be caused by his driving. M appealed.
In allowing the appeal, the Court of Appeal (England) found support in the words of Lord Goddard C.J. in R. V. Whybrow (1951) 35 Cr. App R. 141 at 146, that:
“Therefore, if one person attacks another, inflicting a wound in such a way that an ordinary, reasonable person must know that at least grievous bodily harm will result, and death results, there is the malice aforethought sufficient to support the charge of murder. But, if the charge is one of attempted murder, the intent becomes the principal ingredient of the crime. It may be said that the law, which is not always logical, is somewhat illogical in saying that, if one attacks a person intending to do grievous bodily harm and death results, that is murder, but that if one attacks a person and only intended to do grievous harm and death does not result, it is not attempted murder, but wounding with intent to do grievous harm. It is not really illogical because, in that particular case, the intent is the essence of the crime while, where the death of another is caused, the necessity is to prove malice aforethought, which is supplied in law by proving intent to do grievous bodily harm.”
Section 2(1) of the Robbery and Firearms Act, Cap. 398 LFN 1990, defines the offence of attempted robbery thus:
“Any person who, with Intent to steal anything assaults any other person and at or immediately after the time of the assault, uses or threatens to use actual violence to any other person or any property in order to obtain the thing intended to be stolen shall upon conviction under this Act———“. (Underlined emphasis supplied).
The essential ingredients in the above provision as concerns this case are the phrases “with intent to steal anything” and “in order to obtain the thing intended to be stolen.”
In the instant case, the conviction for the offence of Attempted Robbery cannot be sustained as there is no evidence on record of an intent to steal which is a vital ingredient of the offence.
Issue No. 2 is resolved in favour of the Appellants.
The complaint of the Appellant in Issue No. 3 is that the application of the provision of Section 179 of the Criminal Procedure Act by the learned trial Judge without affording Appellants any opportunity to address her on same did amount to a breach of fair hearing.
Counsel referred to the cases of Oje vs. Babalola (1991) 5 S.C.N.J 110 at 121, and Tinubu vs. IMB (2001) 10 S.C.N.J 1 at 12 – 13 and submitted that once a Judge raises an issue suo motu, he must give the parties an opportunity to address him on that new issue, particularly the party who would be adversely affected by the issue raised. That, where this is not done and the Judge goes ahead to decide the issue raised there is denial of fair hearing occasioning a miscarriage of justice.
Learned counsel for the Respondent on the other hand submitted that a party who alleges that he was denied fair hearing must prove specific act or acts of such denial and not a mere agglomeration of conducts which are merely cosmetic and vain.
Counsel referred to the case of Ejeka vs. The State (2003) 6 SCM 1 at 3 and submitted that the mere exercise of judicial powers in accordance with the law cannot be interpreted to mean denial of fair hearing.
Fair hearing, in essence, said counsel, means given equal opportunity to the parties to be heard in the litigation before the court. Where this opportunity is created, how any party used its own chance concerns him alone. Such party cannot turn back to complain of breach of the fair hearing principle.
After referring to the case of INEC vs. Musa & Ors (2003) 1 SCM 62 at 69, counsel argued that it is not enough to say that the right to fair hearing was breached in a matter, it must be shown by the evidence available the circumstances of such breach. The evidence must be that the party was not given an opportunity to state his case which he wanted to state in his own way.
Learned counsel for the Respondent submitted that a fair hearing is not a cut and dry principle which parties in the abstract always apply to their comfort and convenience. That, rather, it is a principle which is based and must be on the facts of the case before the court. Only the facts of the case can influence and determine the application or applicability of the principles of fair hearing.
He submitted that the powers of a court to convict on a lesser offence where possible and necessary did not and could not make a room for the court to return to the court hall for further argument of a party or parties before final judgment.
I think the learned counsel for the Appellants is in gross misconception in relation to Issue No. 3.
Clearly, the application of the provision of Section 179 of the C.P.A to convict an accused of a lesser offence as disclosed from the evidence on record has nothing to do with the opportunity given to the parties to present their cases freely before the court. The application of the provision by a learned trial Judge after the close of hearing in his final judgment has nothing to do with the principles of fair hearing. As rightly pointed out by the learned counsel for the Respondent , the exercise of the procedural power of the trial Judge to convict of a lesser offence under the provision of Section 179 C.P.A. is an exercise of judicial powers in accordance with the law which cannot be interpreted to mean denial of fair hearing. It is not as suggested by the learned counsel for the appellants raising an issue suo motu which would have required addresses or further addresses by counsel to the parties. No. new issue or issue suo motu is raised by the exercise of the judicial discretion vested in a trial Judge to convict for a lesser offence by the provision of Section 179 of the C.P.A.
Accordingly, Issue No. 3 is resolved against the Appellants.
In this appeal I have resolved Issues Nos. l and 3 against the Appellants but Issue No. 2 in favour of the Appellants.
The consequence of resolving Issue No. 2 in favour of the Appellant is that the appeal is allowed in part. From the evidence on record, especially that of PW2 which showed that the Appellants armed with offensive weapons entered her house in the early hours of the morning on 5/8/99 threatened her family with guns and shot guns even after they had left the house of the PW2 but without any evidence of an intent to steal captures in the minimum the felony of serious assault, house breaking and burglary.
In this respect, the intended felony is serious assault and the offence committed is House breaking – burglary.
Section 411 of the Criminal Code provides for the offence of House breaking: Burglary in these terms:
411 Any person who – (1) breaks and enters the dwelling-house of another with intent to commit a felony therein – or (2) having entered the dwelling house of another with intent to commit a felony in the dwelling house of another, breaks out of the dwelling house; is guilty of a felony and is liable to imprisonment for fourteen years.
In view of the above, I substitute the conviction and sentence of the Appellants for the offence of Attempted Robbery to a conviction of each of the Appellants for the offence of House breaking; burglary under the provision of Section 411 of the Criminal Code Act.
The second Appellant in this appeal Ifeanyi Chikere has been reported dead.
I hereby sentence the 1st Appellant John Etim and the 3rd Appellant Lawrence I. Nwogu to a term of 14 years imprisonment each for the offence of House breaking – burglary committed in the house of the complainant Mrs. Racheal Chinyere Nsofor- Ndulue on 5/8/99.
Each of the term of imprisonment of the Appellants shall start to run from the date of judgment in the court below that is 1/11/2007.
That shall be the judgment of the court.
HARUNA SIMON TSAMMANI, J.C.A.: I was privileged to read in advance, the lead Judgment delivered by my learned brother, M.A. Owoade; JCA.
I agree with the reasoning and conclusion arrived at in the lead judgment. I have nothing else useful to add.
TIJJANI ABUBAKAR, J.C.A.: I had the privilege of reading before now, the judgment just delivered by my learned brother, M. A. Owoade, JCA.
I agree with the reasoning and conclusion arrived at by my learned brother, and abide by the consequential orders made thereon.
Appearances
Chidi B. Nworka, Esq,For Appellant
AND
S.A. Njoku, A-G Imo State with O.N. Akowundu
D.P.P., M.C. Ijezie, Chief State Counsel and P. Nwanyanwu, Esq, Senior State CounselFor Respondent
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