CHINEDU EZE v. THE STATE
(2015)LCN/8065(CA)
In The Court of Appeal of Nigeria
On Friday, the 20th day of March, 2015
CA/L/1198/2010
RATIO
CRIMINAL LAW: SELF DEFENCE; WHAT A DEFENDANT MUST SHOW TO AVAIL HIMSELF OF SELF DEFENCE
Self defence is a complete answer to a charge of murder. To avail himself of the defence, the appellant must show that his life was so endangered by the act of the deceased that the only option left for him to save his own life was to kill the deceased. He must show that he did not want to fight and was prepared to withdraw. But the appellant did not in his evidence in Court or in his statement to the police say that it was in a bid to preserve his life from imminent danger of death from a concerted attack by the deceased and his brother that he took reprisal attack that resulted in the death of the deceased. Rather the Appellant maintained that he did not attack the deceased. Learned counsel for the respondent is right that the address of Counsel no matter how beautifully written cannot take the place of evidence. BUHARI VS. OBASANJO (2005) 13 NWLR (PT. 941) @ 286. per. CHINWE EUGENIA IYIZOBA, J.C.A.
APPEAL: WHETHER AN APPELLANT CAN PRESENT A CASE DIFFERENT FROM WHAT HE PRESENTED AT THE LOWER COURT
The appellant surely cannot, on appeal, present a case different from what he presented at the lower court. In the case of ALHASSAN MAI YAKI VS. THE STATE (2008) 7 SC 128 at 145 cited by respondent’s counsel, OGBUAGU JSC observed:
“I have perused the records including the said statements of the appellant and his evidence at the trial, I have not seen therein, where the appellant or his witness or even the evidence of the Prosecution witnesses, where the plea of defence of self-defence or provocation was ever raised except in the address or submissions of the learned counsel for the appellant in their said Brief. But assuming there was such evidence, then, it will be that the appellant on that ground, “visited” the crowd or mob that were not armed with any gun, with a Police rifle or gun loaded with bullets which red to the death of the deceased.” per. CHINWE EUGENIA IYIZOBA, J.C.A.
EVIDENCE: BURDEN AND STANDARD OF PROOF; THE BURDEN AND STANDARD OF PROOF IN CRIMINAL CASES AND WHETHER THEY CAN BE DISCHARGED BY HEARSAY, ORAL OR DOCUMENTARY EVIDENCE
The presumption of innocence in Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 places a very heavy burden on the prosecution not only to prove the guilt of the accused but to prove it beyond reasonable doubt. Section 138(1) of the Evidence Act. The burden rests throughout on the Prosecution and does not shift. In discharging the burden on it, the Prosecution cannot rely on hearsay evidence, oral or documentary except as is provided under the Evidence Act. per. CHINWE EUGENIA IYIZOBA, J.C.A.
EVIDENCE: HEARSAY EVIDENCE; THE MEANING OF HEARSAY AND WHETHER IT IS ADMISSIBLE
Section 37 of the Evidence Act 2011 provides: “Hearsay means a statement –
a. Oral or written made otherwise than by a witness in a proceeding: or
b. Contained or recorded in a book, document or any record whatever, proof of which is not admissible under any provision of this Act, which is tendered in evidence for the purpose of proving the truth of the matter stated in it”.
Section 38 provides that hearsay evidence is not admissible except as provided in this Part or by or under any other provision of this or any other Act. The hearsay rule was also aptly stated by the Privy Council in the case of Subrananiam vs. Public Prosecutor (1956) 1 WLR 965-969:
“Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the evidence but the fact that it was made.” per. CHINWE EUGENIA IYIZOBA, J.C.A.
EVIDENCE: SUSPICION; WHETHER SUSPICION CAN REPLACE PROOF OF GUILT
Suspicion, no matter how strong or even evidence of opportunity to commit the offence charged cannot replace legal proof of guilt. See ONAH V. STATE (1985) 3 NWLR (PT.12) 236; AJOSE V. THE STATE (2002) 7 NWLR (pt.766) 302 @ 319 D-E. per. CHINWE EUGENIA IYIZOBA, J.C.A.
Before Their Lordships
CHINWE EUGENIA IYIZOBAJustice of The Court of Appeal of Nigeria
TIJJANI ABUBAKARJustice of The Court of Appeal of Nigeria
ABIMBOLA O. OBASEKI-ADEJUMOJustice of The Court of Appeal of Nigeria
Between
CHINEDU EZEAppellant(s)
AND
THE STATERespondent(s)
CHINWE EUGENIA IYIZOBA, J.C.A. (Delivering the Leading Judgment): On the 29th day of March 2010, Oluwayemi J. of the High Court of Lagos State Ikeja Judicial Division convicted the appellant, Chinedu Eze and his brother Chukwudi Eze of the murder of Ndubuisi Nwawe contrary to Section 319(1) of the Criminal Code Cap C17, Vol 2 Laws of Lagos State 2003 and sentenced them to life imprisonment.
The facts of the case were that on or about 20th day of March, 2007 at Isheri Olofin, Isale Aro in the Ikeja Judicial Division of Lagos State, the daughter of the deceased claimed that she was beaten by the Appellant and his brother when she went to their shop to buy cups of rice. The wife of the deceased (Joy Nwawe) came out to inquire the cause but the Appellant denied beating the daughter. As they were arguing, the deceased came and challenged the Appellant to re-measure the cups of rice but the Appellant refused and in the process a fight ensued. It was alleged that the Appellant and his brother attacked the deceased and hit him on the head with a pestle mortar and an iron rod. The deceased was taken to the hospital where he died eight days later. An interim post mortem report stating the cause of death was issued by the Lagos University Teaching Hospital but was tendered in evidence as Exhibit G by the prosecution’s sole witness, the police investigator and not the doctor who prepared the report.
The prosecution had listed five witnesses Joy Nwawe, Innocent Nwawe, ASP Anibule Zedwick, Insp. Patrick Nnadi, and W/SGT Sadiat Ogundifo in the proof of evidence but eventually called only W/Sgt. Sadiat Ogundifo after all effort to get the other witnesses failed. The witness gave evidence that she was attached to the Homicide Section of State C.I.D. Panti, Yaba and on the 24th of March, 2001 a case of attempted murder was reported by one Joy Nwawe through a petition written to the Deputy Commissioner of Police, Panti, admitted in evidence as Exhibit A. The matter was referred to their team led by ASP, Zedwick Anibule while she was detailed to investigate and she contacted the Isheri Olofin Police Station where the matter was first reported. The Appellant and his brother Chukwudi Eze were brought to State C.I.D. Panti where they were interviewed and their statements taken and admitted in evidence as Exhibits B and C. She also gave evidence that ASP Zedwick Anibule recorded the statement of Joy Nwawe which was admitted as Exhibit D while the statement of Innocent Nwawe was admitted as Exhibit E. The pestle mortar and Iron rod which were the objects used in attacking the deceased that led to his death were admitted as Exhibits F & F1.
The Appellant and his brother (Chukwudi Eze) gave evidence and tendered no exhibit. The case of the appellant was that on the material day, he was in the shop where he and his brother (Chukwudi Eze), the 2nd Defendant at the trial, were doing their apprenticeship, when the deceased’s daughter, Nkechi came to buy some cups of rice. In the course of the transaction, a dispute ensued between them and the said Nkechi over a sachet of pure water, which attracted the parents of the said Nkechi. First, the mother of Nkechi (Joy Nwawe) came to the shop (based on the complaint of her daughter that the Appellant and his brother drank her pure water), and without waiting for explanation, she slapped the Appellant. Immediately, a neighbour of the Appellant (mama Emeka) intervened in a bid to settle the matter but the deceased’s wife would not allow her, she followed the Appellant back to his shop, held him at his shirt which tore as a result. Appellant then pushed her away and in the cause of the struggle the deceased arrived at the scene and attacked the Appellant with broken bottle, while Innocent Nwawe, deceased brother stabbed the Appellant with a knife at the side of his stomach. Thereafter someone took the Appellant to a hospital at Kara Market where the bleeding associated with the injury was stopped. While he was coming back from the hospital, he was informed that they have killed his brother but on getting to the scene he saw that his brother had been revived, and from there they were taken to the police. At the close of the case for the defence, the parties filed and exchanged written final addresses which were duly adopted. The learned trial judge in his judgment convicted the appellant and his brother of murder and sentenced them to life imprisonment.
Dissatisfied with the judgment, the appellant filed his notice of appeal with three grounds of appeal. With the leave of the Court he filed an amended notice of appeal with ten grounds of appeal. The parties filed and exchanged briefs of argument. At the hearing on 12/2/15, the Respondent was not represented but was duly served. The briefs were deemed duly adopted.
From the ten grounds of appeal, the appellant formulated four issues for determination as follows:
1. Whether the Appellant’s arraignment at the trial Court was improper and consequently nullified the entire trial at the lower Court?
2. Whether the defence of self defence availed the Appellant in the circumstance?
3. Whether the prosecution proved its case beyond reasonable doubt?
4. Whether the learned trial judge properly evaluated the evidence in the case?
The Respondent adopted the four issues formulated by the Appellant’s Counsel.
ISSUES NO 1
Whether Appellant’s arraignment at the trial Court was improper and consequently nullified the entire trial at the lower court?
APPELLANT’S ARGUMENTS:
Learned counsel for the appellant, Mr. Chino Edmund Obiagwu in his brief submitted on issue 1 that the appellant’s arraignment was not in compliance with Section 211 of the Administration of Criminal Justice Law No. 10 2007 Laws of Lagos State because the charge was not explained to the appellant before he was asked to plead to it, as required by the law.
Counsel relied on the cases of KAJUBO VS. STATE (1998) 1 NWLR (PT 73) 721, EREKANURE VS. STATE (1993) NWLR (PT.294) 385; KALU VS. STATE (1998) 5 NWLR (PT 604) 548 at 565. Counsel also cited CHRISTOPHER TOBI VS. STATE (unreported CA/L/385/2007 judgment delivered 8th February, 2011), in which he claimed the arraignment followed the same mode as in this case and this Court held the arraignment irregular and nullified the trial.
RESPONDENTS ARGUMENTS:
In reply, learned counsel for the respondent, M.B. Olaniyi (Mrs) in her brief submitted that an arraignment in a criminal trial is a procedure whereby the accused is brought before the Court to plead to the criminal charge preferred against him in the information. She conceded that an arraignment consists of charging the accused and reading over and explaining the charge to the accused in the language he understands to the satisfaction of the Court then followed with a plea in line with the provisions of Section 215 of the Criminal Procedure Act, Cap 80 LFN and Section 36(6) of the 1999 Constitution of Federal Republic of Nigeria. She submitted that the plea as recorded by the trial Judge at page 48 of the record substantially complied with the provisions of the law as regard arraignment. She relied on the following cases: Emmanuel Olabode v. The State (2009) 11 N.W.L.R (Pt.1152) 254 @ 268-269; Sunday Amala v. The State (2004) 12 N.W.L.R. (Pt.888) 520 at 560.
RESOLUTION:
Section 215 of the CPL provides:
“The person to be tried upon any charge or information shall be placed before the Court unfettered unless the Court shall see cause otherwise to order, and the charge or information shall be read over and explained to him to the satisfaction of the Court by the registrar or other officer of the Court, and such person shall be called upon to plead instantly thereto, unless where the person is entitled to service of a copy of the information he objects to the want of such service and the Court finds that he has not been duly served therewith.
From the above, a valid and proper arraignment of an accused person must satisfy the following conditions:
1. He must be placed before the court unfettered unless the court shall see cause to otherwise order;
2. The charge or information shall be read over and explained to him to the satisfaction of the court by the registrar or other officer of the court; and
3. He shall then be called upon to plead instantly thereto (unless there are valid reasons to do otherwise as provided in Section 100 of the Criminal Procedure Law).
In the case of Ewe v. The State (1992) 6 NWLR (Pt.246) 147, the recording merely said “Accused in court, pleads not guilty to charge”. Although the appellant pleaded “not guilty” there was nothing on the printed record to show that the charge was read and explained to him as required by Section 215 of the CPA. The Supreme Court which suo motu took up the issue but invited addresses from counsel on the point held that strict compliance with the mandatory provision of Section 215 of the Criminal Procedure Act is a prerequisite of a valid trial and where a trial Court proceeds to try an accused person without strictly complying with the provision of the section, the trial will be declared null and void. See also Eyorokoromo v. The State (1979) 6-9 SC 3; Kajubo v. The State (1988) 1 NWLR (Pt.73) 721; Effiom v. The State (1995) 1 NWLR (Pt.373) 507; Ogunye vs. State (1999) 5 NWLR (Pt.604) 548; Tobby v. The State (2001) 10 NWLR (Pt.720) 23; Adeniji v. The State (2001) 13 NWLR (Pt.730) 375; Debie v. State (2007) 9 NWLR (Pt.1038) 30; Okolie v. The State (2012) 1 NWLR (Pt.1281) 385.
In this appeal, the learned trial judge at page 48 of the record of appeal recorded the plea of the Appellant as follows:
PLEA
“1st Accused Person: Charge read to him in English language, he said he understood the charge to the satisfaction of the Court, he pleaded ‘Not Guilty’ to the charge.
2nd Accused Person said he understood the charge read to him in English language to the satisfaction of Court. He pleaded ‘Not Guilty’ to the charge”
The second condition in the arraignment procedure is that the charge or information shall be read over and explained to the accused to the satisfaction of the Court by the registrar or other officer of the Court.
From the above, while the charge was read to the accused in English, there is no indication that it was explained to him or that the explanation was to the satisfaction of the Court. The recording here is that the accused said he understood the charge read to him to the satisfaction of the Court. It is not for the accused to say so. It is for the Court itself to be satisfied that the explanation was in order. Mr. Obiagwu had referred us to the case of OKOLIE VS. STATE (unreported CA/L/385/2007 judgment delivered 8th February 2011) now reported in [2012] 1 NWLR (Pt. 1281) 385 and argued that the arraignment there followed the same mode as in this case. There, the plea taking as in the present case was a mere paraphrase of the proceedings and recorded thus:
“PLEA
The charge was read to the accused in English Language. The accused says he understands the charge and pleads not guilty to the one count charge”
Mukhtar JCA who delivered the lead judgment observed:
“Although the lower court might be satisfied that the charge was read over to the appellant and he understood it, his plea ought to have been recorded in the words used by him. The appellants plea is so important that it cannot be reduced to mere story-telling. The plea must be recorded exactly in the accused’s own words after reading and explaining the charge to him.”
But in the Supreme Court case of Idemudia v State (1999) 7 NWLR (Pt.610) 202 (where the record of arraignment read thus: “The accused present in court. Esowe (Mrs) for the State. Charge read to the accused. On the 1st count the accused pleads as follows: I am not guilty. Accused says his counsel is not in court.”) Karibi-Whyte JSC at page 222 A – F observed:
“There appears to be a fairly rigid and inflexible approach to the question of non-compliance with the enabling provisions for arraignment. It is conceded that the conditions have been designed and formulated for the protection of the accused and preservation of the constitutional rights of the citizen. Equally, the courts should not ignore the nature of the rights protected and the preservation of the courts in their solemn and sacred duty to do justice. There is clearly observable the distinction between a matter of procedure that affects the substantial justice in the trial of a case and a matter of procedure which in no way affects the justice of the trial of the case. In the latter case, if will not affect the trial. It would seem to me that the mandatory provision of Section 215 of the Criminal Procedure Law which requires that the charge be read and explained to the accused is complied with if there is evidence on the record to show that the accused understood the charge and was in no way misled by the absence of explanation ex facie. It is conceded that the subsequent validity of the procedure rests on the validity of the plea on arraignment. However, where there is counsel in the case defending an accused person, the taking of the plea by the Court it ought to be presumed in favour of regularity, namely that even if it was not stated on the record, the charge had been read and explained to the accused on arraignment before the plea was taken. Omnia praesumuntur rite es solemniter esse acta. Accordingly in the absence of proof to the contrary, the presumption prevails. See also Section 150(1) Evidence Act.
It does not seem to me that the requirement that the judge should be satisfied that the charge has been read and explained to the accused is one which need to appear in the record and the non-appearance of which affects the justice of the case. It is good practice to so indicate. It is sufficient on the record as a whole if it could be gathered that the accused understood the nature of the charge…”
It seems therefore that each case must be considered based on the peculiarities of the particular case. For example in the case of Okolie v The State (Supra), instead of immediately taking the plea of the appellant, the Court embarked on a protracted argument about bail and other issues, before taking the plea. Further, the proceedings of the day where the plea was taken were not signed by the trial Judge rendering it null and void. It was therefore inevitable that the trial be declared a nullity. In the appeal before us, while one may not worry overly about the fact that it was not recorded that the charge was explained to the accused since it was recorded that he said he understood the charge to the satisfaction of the Court. The recording as is may be construed as substantial compliance, given that the accused was represented by counsel. There is also nothing on record to show that the accused did not understand the nature of the charge. On the contrary, it can be gathered from the records that he did understand the nature of the charge. Issue 1 is therefore resolved in favour of the respondent.
ISSUE NO. 2
Whether the defence of self defence availed the Appellant in the circumstance?
APPELLANTS ARGUMENTS:
On this issue, Mr. Obiagwu submitted that the evidence led by the Prosecution disclosed that the deceased and members of his family first slapped and attacked the appellant with a broken bottle. Counsel argued that the learned trial judge failed to consider whether the defence of self defence was open to the appellant. He submitted that the law is that a trial Court while evaluating the evidence adduced before it must consider all the defences open to the accused person by virtue of the circumstances of the case. Learned counsel submitted that to succeed, all the appellant needed to do was to lead evidence to show that:
a. He is free from fault in bringing about the fight in which the deceased was injured or met his death.
b. There was an impending peril to his life or of great bodily harm either real or so apparent as to create honest belief of an existing necessity.
c. There was no safe or reasonable mode of escape by retreat; and
d. There was necessity of taking a retaliatory attack to secure him from imminent death.
He cited the following authorities LIYA VS. STATE (1998) 2 NWLR (PT.538) 397, KWAGHSHIR VS. STATE (1995) 3 NWLR (Pt 386) 651, NWAMBE VS. STATE (1995) 3 NWLR (PT 384) 385 AND NWACHUKWU VS. STATE (2002) 12 NWLR (Pt.782) 543.
Counsel submitted that there is overwhelming and uncontroverted evidence at the trial that both the deceased and his brother were armed with broken bottle and knife respectively in the course of the unprovoked fight which they used to attack the Appellant as corroborated by the account of the Appellant in Exhibit B to the police which was given when the incident was still fresh in his mind. Counsel relying on CHUKWU VS. STATE (1992) 1 NWLR (PT 217) 255 further submitted that the Appellant believed on reasonable grounds that he could not have preserved himself from death or grievous bodily harm except by using such reprisal attack and force. Counsel submitted that it was not necessary that the reasonable ground be proved by the appellant. The law is that the Appellant is not required to prove his innocence by whatever standard, rather the burden always lies on the Prosecution to prove his guilt. Counsel cited the case of UWAEKWEGHINYA vs. STATE (2005) 23 WRN 1.
RESPONDENTS’ ARGUMENTS:
Mrs. Olaniyi in reply submitted that there is a difference between self defence and fighting. She argued that self-defence is where a person who is threatened in an unprovoked assault which caused a reasonable apprehension and fear of possible death or grievous bodily harm needs not run away but shows that he did not want to engage in a fight. The test to determine the difference between self-defence and fighting is that a man defending himself does not want to fight and defends himself solely to avoid fighting. Counsel referred to the case of THE STATE VS. FATAI BAIYE WUNMI (1980) 1 NCR 183 where the Supreme Court held that the person threatened needs not run away but should show that he did not want to engage in the fight.
counsel submitted that the Appellant’s counsel in his brief of argument attempted to give evidence on behalf of the Appellant as there is nowhere in the record of appeal either in the Appellant’s statement to the police admitted as Exhibit B or in the course of trial where evidence was given that the deceased with his brother Innocent Nwawe attacked the Appellant. The Appellant testifying as 1st Defendant in the lower Court at page 67 of the record of appeal under cross examination admitted that the father (deceased) choked him in the mouth and the crowd separated the fight. However, the 2nd Defendant in the lower Court also on page 67 of the record of appeal admitted under cross examination that he did not know the person who stabbed him with knife. Counsel submitted that the above pieces of evidence did not support the claim of the Appellant’s counsel that the murder of the deceased was in self-defence as the Appellant never claimed to have attacked the deceased in self-defence of his own life. Counsel submitted that the issue of self-defence raised by the Appellant at this stage is an afterthought as the issue was never canvassed before the lower Court and urged the court to discountenance same.
RESOLUTION
Self defence is a complete answer to a charge of murder. To avail himself of the defence, the appellant must show that his life was so endangered by the act of the deceased that the only option left for him to save his own life was to kill the deceased. He must show that he did not want to fight and was prepared to withdraw. But the appellant did not in his evidence in Court or in his statement to the police say that it was in a bid to preserve his life from imminent danger of death from a concerted attack by the deceased and his brother that he took reprisal attack that resulted in the death of the deceased. Rather the Appellant maintained that he did not attack the deceased. Learned counsel for the respondent is right that the address of Counsel no matter how beautifully written cannot take the place of evidence. BUHARI VS. OBASANJO (2005) 13 NWLR (PT. 941) @ 286. I am surprised that Mr. Obiagwu is raising this defence in his brief of argument given the facts put before the learned trial judge. There is nothing whatsoever in the facts as presented by the Prosecution or the appellant to suggest a possible defence of self defence. The appellant surely cannot, on appeal, present a case different from what he presented at the lower court. In the case of ALHASSAN MAI YAKI VS. THE STATE (2008) 7 SC 128 at 145 cited by respondent’s counsel, OGBUAGU JSC observed:
“I have perused the records including the said statements of the appellant and his evidence at the trial, I have not seen therein, where the appellant or his witness or even the evidence of the Prosecution witnesses, where the plea of defence of self-defence or provocation was ever raised except in the address or submissions of the learned counsel for the appellant in their said Brief. But assuming there was such evidence, then, it will be that the appellant on that ground, “visited” the crowd or mob that were not armed with any gun, with a Police rifle or gun loaded with bullets which red to the death of the deceased.”
The learned trial judge cannot in the circumstances be expected to consider the defence as the evidence led did not disclose the possibility of any such defence. Issue 2 is resolved against the appellant.
ISSUE 3
Whether the Prosecution proved its case against the appellant beyond reasonable doubt?
APPELLANT’S ARGUMENTS:
On issue 3, Mr. Obiagwu submitted that Exhibits A, D, E, F1, F2 and G were wrongly admitted in evidence, and that if they are expunged from the record, what is left (Exhibits B and C, together with oral evidence of appellant), would not sustain the conviction of the appellant. Counsel submitted that Exhibit A, the petition written by Joy Nwawe, the complainant, was inadmissible as she was not called to give evidence. PW1 who tendered the exhibit was not the maker or recorder and could not be cross examined on it. Exhibit A was documentary hearsay and inadmissible. Exhibit D, the statement of Joy Nwawe to the police was recorded by ASP Anibule. He was not called to testify. No one could be cross examined on the statement or its contents. Exhibit E, the statement of Innocent Nwawe was not received by PW1, and she was not the maker. Mr Nwawe was not called to testify and the policeman who received the statement from him did not testify or tender the statement. Exhibit F – F1, the mortar and Iron-rod were wrongly admitted in evidence. PW1 testified at page 52 lines 25 – 26 of the record that “the petitioner Joy Nwawe brought (to the police station) an exhibit, pistol mortar and iron rod that the Defendants used them to hit her husband on the head.” PW1 was not present when the said Exhibits F – F1 were used. The exhibits were not given to her by Ms Nwawe. PW1’s evidence in this regards was hearsay and inadmissible. Exhibit G the interim post mortem report signed by Dr. Irene Ikponwaso on 11/04/2007 was tendered and admitted through PW1, who was neither the maker nor qualified to be cross-examined on it. Learned counsel submitted that as the learned trial judge had relied solely on these inadmissible exhibits in convicting the appellant, when they are expunged and struck out; there would be nothing left to sustain the conviction. There was no other Prosecution witness apart from PW1. There was no other evidence from the prosecution apart from the exhibits which are clearly inadmissible through PW1. The essential elements of the offence of murder would not have been proved.
RESPONDENTS ARGUMENTS:
On this issue, Mrs Olaniyi submitted that the law as laid down in Section 138(1) of the Evidence Act (as amended) is that the commission of a crime must be proved beyond reasonable doubt and that it is the duty of the Prosecution to prove its case by evidence of such quality as to leave the Court in no reasonable doubt as to the guilt of the accused person. Counsel submitted that the learned trial judge in his judgment at page 110 of the record of appeal held that the Prosecution has proved by the contents of all the Exhibits tendered by PW1 that the Defendants Chinedu Eze and Chukwudi Eze caused the death of Ndubusi Nwawe on the 20th of May, 2007. Counsel relying on the case of BELLO SHURUMO VS. THE STATE (2010) 19 NWLR (PT 1226) 73 at 94 submitted that the Prosecution in proving its case need not call every person that was linked to the scene of the crime by physical presence or otherwise to give evidence on what he or she perceived. Once persons who can testify to the actual commission of the crime and the other relevant ingredients have done so, it will suffice for the satisfaction of the principle of proof beyond reasonable doubt. Counsel further submitted that the evidence of PW1 cannot amount to hearsay as the evidence was given based on the report of investigation carried out by the said witness. The evidence will only be hearsay and inadmissible when the object is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made. Counsel relied on the case of OSUOHA VS THE STATE (2010) 16 NWLR (PT. 1219) 364 AT 400. Counsel referred to Section 34(3) of the Evidence Act (as amended) and submitted that it is on record that the Prosecution made attempts to bring the wife of deceased to Court to testify but same proved abortive as it was confirmed by PW1 that she had packed out of the address. Counsel further submitted that the evidence given by PW1 in the instant case complied substantially with the provisions of the law and that there was nothing procedurally wrong in it. She referred to the case of OKON NSIBEHE EDOHO VS. THE STATE (2010) 14 NWLR (PT 1214) 651 at 678 (concurring judgment of Adekeye JSC). Learned counsel relying further on the case of ISIEKWE VS STATE (1999) 9 NWLR (PT. 617) 43 submitted that it is not mandatory for the medical officer who performed an autopsy on a deceased to be present in Court in order to give evidence during the trial and that production by either party of certificate signed by the medical officer may be taken as sufficient evidence of the facts. Also relying on the cases of EZOMO VS. N.B.C. PLC (2007) ALL FWLR (PT.368) 1032 at 1065 and ALADE VS. OLUKADE (1976) 2 SC 183, Counsel submitted that all the Exhibits in the case were admitted by the learned trial judge without any objection by Counsel to the Appellant and that he cannot now be heard to complain and object to the Exhibits at the appellate Court.
RESOLUTION
The presumption of innocence in Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 places a very heavy burden on the prosecution not only to prove the guilt of the accused but to prove it beyond reasonable doubt. Section 138(1) of the Evidence Act. The burden rests throughout on the Prosecution and does not shift. In discharging the burden on it, the Prosecution cannot rely on hearsay evidence, oral or documentary except as is provided under the Evidence Act.
Section 37 of the Evidence Act 2011 provides:
“Hearsay means a statement –
a. Oral or written made otherwise than by a witness in a proceeding: or
b. Contained or recorded in a book, document or any record whatever, proof of which is not admissible under any provision of this Act, which is tendered in evidence for the purpose of proving the truth of the matter stated in it”.
Section 38 provides that hearsay evidence is not admissible except as provided in this Part or by or under any other provision of this or any other Act. The hearsay rule was also aptly stated by the Privy Council in the case of Subrananiam vs. Public Prosecutor (1956) 1 WLR 965-969:
“Evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the evidence but the fact that it was made.”
The above home truth was acknowledged by learned counsel for the respondents at page 6 paragraph 6.3 of their brief when they observed:
“….the evidence of PW1 cannot amount to hearsay as the evidence was given based on the report of investigation carried out by the said witness. The evidence will only be hearsay and inadmissible when the object is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made.”
Learned counsel for the respondents had cited Section 34(3) of the Evidence Act 2004 and the case of OKON NSIBEHE EDOHO VS. THE STATE (Supra) as authority to justify the admission of the evidence of PW1 and all the exhibits. The Section provides:
“34(1) Evidence given by a witness in a judicial proceeding, or before any person authorised by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding the truth of the facts which it states, when the witness is dead or cannot be found, or incapable of giving evidence, or is kept out of the way by the adverse party, or when his presence cannot be obtained without an amount of delay or expense which, in the circumstances of the case, the Court considers unreasonable:
Provided –
(a) That the proceeding was between the same parties or their representatives in interest;
(b) That the adverse party in the first proceeding had the right and opportunity to cross-examine; and
(c) That the questions in issue were substantially the same in the first as in the second proceeding.
(2) A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this Section.
(3) In the case of a person employed in the public services of the Federation or a State who is required to give evidence for any purpose connected with a judicial proceeding, it shall be sufficient to account for his non-attendance at the hearing of the said judicial proceedings if there is produced to the Court, either a Federal Gazette, or a telegram or letter purporting to emanate from the head of his department, sufficiently explaining to the satisfaction of the Court his apparent default.”
It is quite obvious that the above Section is not applicable as it appears to concern mainly evidence given in an earlier proceeding; and there must have been opportunity for the adverse party to cross-examine before such evidence is admitted in the subsequent proceedings. In the appeal before us, the exhibits were tendered by PW1 who knew nothing about its contents and the Appellant had no opportunity to cross-examine on them contrary to Section 36(6)(d) of the 1999 Constitution which provides that:
“Every person who is charged with a criminal offence shall be entitled to – (d) Examine in person or by his legal practitioners, the witnesses called by the Prosecution before any Court or tribunal and obtain the attendance and carry out the examination of witnesses to testify on his behalf before the Court or tribunal on the same conditions as those applying to the witnesses called by the Prosecution…”
Exhibit D, statement of Joy Nwawe to the police was recorded by ASP Anibule. He was not called to tender the statement and no explanation was given for his non-attendance. Even if the statement could be admitted under Section 36 of the Evidence Act 2004, it will be for the purpose of proof that the statement was made; and cannot be used in proof of the truth of the contents of the statement. OSUOHA VS THE STATE (Supra)
As stated earlier in this judgment, the Prosecution called only one witness PW1 W/Sgt Sadiat Ogundifo out of the five witnesses listed in the proof of evidence. None of the eye witnesses to the fracas that led to the death of the deceased was called as a witness. Through the sole witness PW1 all the exhibits were tendered. Mr. Obiagwu in his brief, made the following observations in respect of the exhibits:
Exhibit A, petition written by Joy Nwawe, the complainant, was inadmissible. She was not called to give evidence. PW1 who tendered the exhibit was not the maker or recorder. She could not be cross examined on whether or not and how it was made, as well as the truth of its content. Exhibit A was documentary hearsay and inadmissible.
Exhibit D, statement of Joy Nwawe to the police. It was recorded by ASP Anibule. PW1 Sgt Sadiat Ogundifo who tendered it did not receive the evidence. The witness was not called to testify. No one could be cross examined on the statement or its content. That exhibit is again inadmissible.
Exhibit E, statement of Innocent Nwawe; PW1 did not receive the statement, and she was not the maker. Mr Nwawe was not called to testify and the policeman who received the statement from him did not testify or tender the statement. No cross-examination on the statement.
Exhibits F-F1 mortar and Iron-rod were wrongly admitted in evidence. PW1 testified at page 52 lines 25 – 26 of the record that “the petitioner Joy Nwawe brought (to the police station) an exhibit, pistol, mortar and iron rod that the Defendants used them to hit her husband on the head.” PW1 was not present when the said Exhibits F-F1 were used. The exhibits were not given to her by Mrs Nwawe. PW1’s evidence in this regards was hearsay and inadmissible. Exhibits F & F1 were wrongly admitted as they are of doubtful origin. The deceased’s wife who brought them to the station was not called at the trial to be cross examined or to explain the origin of the Exhibits. The trial Court therefore admitted the Exhibits in error contrary to the provisions of Section 77 of the Evidence Act.
Exhibit G does not qualify as opinion of an expert upon which the trial Court could have resorted to under Section 57 of the Evidence Act based on the following grounds:
a. The maker was not called to give evidence during trial.
b. The maker was not cross examined in respect of his qualification or experience as required by Section 57 of the Evidence Act.
c. The Court will rely on opinion of an expert only if it complies with the provisions of Section 57 of the Evidence Act.
d. The failure of the Prosecution to call the purported pathologist who allegedly made Exhibit G violates applicant’s right to fair hearing under Section 36(6)(d) of the 1999 Constitution.
e. Exhibit G is legally inadmissible and bound to be expunged.
I agree with learned counsel for the appellant that none of the exhibits is admissible in proof of the truth of their contents. Exhibits A and D may be admissible as evidence that the report and statement were made to the Police but that is where it ends. No weight can be attached to their contents. The content of a document can only be proved by someone who can give direct oral evidence of the contents of such a document. PW1 who tendered the documents cannot give direct oral evidence of their contents. It is immaterial that the appellant did not object to the tendering of the documents. This is one of the exceptions where failure to object at the lower Court will not stop the appellant from objecting on appeal. See Etim & Ors vs. Ekpe & Anor (1983) NSCC 86 @ 95-96 per Aniagolu JSC:
“It is a cardinal rule of evidence, and of practice, in civil as well as in criminal cases that an objection to the admissibility of a document sought by a party to be put in evidence is taken when the document is offered in evidence. Barring some exceptions where by law certain documents are rendered inadmissible (consent or no consent of the parties notwithstanding) for failing to satisfy some conditions or to meet some criteria, the rule still remains inviolate that where objection has not been raised by the opposing party to the reception in evidence of a document (or other evidence… the document will be admitted in evidence and the opposing party cannot afterwards be heard to complain about its admission…”
The exhibits being documentary hearsay are exempt from the rule and objection can be taken on appeal.
Learned counsel for the appellant is right that lower Court relied on these exhibits in convicting the appellant. At page 108 line 25 – page 109 line 10 of the printed record, the lower Court found as follows:
“By Exhibit A which is the Petition written by the wife of the deceased to Commissioner of Police of attempted murder of her husband Ndubuisi Nwawe; the Statement of Defendant Exhibit B & C with the deceased who slapped and injured them with broken bottle. Together with Exhibit D Statement of the wife of the deceased that they used iron rod and pestle mortar to injure the deceased, Exhibit F – F1, accompanied with Medical Report Exhibit G which confirmed that the deceased died as a result of multiple tissue injuries and fractures of the base of the skull with severe cerebrate hemorrhage and torsular harmator indicated and clearly show that:
1. Mr. Ndubuisi Nwawe died on the 28/3/07
2. That he died as a result of the injuries he sustained from the use of iron rod and pestle mortar by the two Defendants.
3. That the Defendants knew that death or grievous bodily harm would be consequences of their act from the contents of Exhibit A, B, C, D and G.
I hold that the Defendants caused the death of the deceased.”
It is obvious that the lower Court relied heavily on these exhibits in respect of which the appellant had no opportunity to cross-examine their makers in finding the appellant guilty of murder. In Omega Bank Nigeria Plc vs. OBC Ltd (2005) 8 NWLR (Pt.928) 541 @ 582 B to 583 A-B, Niki Tobi JSC observed:
“It is a general principle of law that the maker of a document is expected to tender it in evidence. There are two basic exceptions to this principle of law; (1) the maker is dead. (2) The maker can only be procured by involving the party in so much expense that could be outrageous in the circumstances of the case. The rationale behind this principle of law is that while a maker of a document is in a position to answer questions on it, the non-maker of it is not in such a position. In the latter situation, a Court of law will not attach any probative value to the document and a document that a Court does not attach any probative value is as good as the mere paper on which it is made. After all probative value is the root of admissibility of evidence…”
See also Onwe v. The State (1975) NSCC 375 @ 381-382; Aigbe & Anor. V. The State (1976) NSCC 487 @ 480.
The point is that admissibility of a document and weight to be attached to the document are two different matters. Some of the exhibits may be legally admissible but in so far as the appellant had no opportunity to cross-examine on them, no weight whatever can be attached to them. See the cases of Isiaka v. The State (2011) All FWLR (Pt.583) 1966, Mustapha v. State (2013) 17 NWLR (Pt.1383) 350 @ 423 – 424.
Apart from Exhibits A, D & G, the rest of the exhibits ought not to have been admitted in evidence in the absence of their maker being called as witnesses. Exhibits A and D may be admissible to show that the petition and the statement were made but that alone will not get the prosecution anywhere near proving their case. Exhibit G, autopsy report may be admissible for the purpose of proving cause of death pursuant to Section 55(1) of the Evidence Act. See Isiekwe v. State (1999) 9 NWLR (Pt.617) 43; State v. Ajie (2000) 11 NWLR (Pt. 678) 434. But Exhibit G does not in any way link the appellant to the death of the deceased. In other words, it does not help the prosecution in proving that the appellant indeed inflicted the injuries that caused the death of the deceased. These Exhibits, that is A, D and G even though admissible through PW1 are not of any use in proving beyond reasonable doubt that the appellant caused the death of the deceased. All that is now left are Exhibits B and C, statements of the appellant and 2nd accused to the police, which, read together with the oral statements in Court of PW1 and the Appellant would not sustain the conviction. In a charge of Murder, the Prosecution must cumulatively prove the following:
1. That the deceased died.
2. That it was the act of the accused that resulted in the death of the deceased, and
3. That the act of the accused was intentional with knowledge that death or grievous bodily harm will be the natural consequences.
See ONYENAKEYA V. THE STATE (1964) NMLR 34; OMONUJU V. STATE (1976) 5 SC 1; AKINFE V. STATE (1983) 3 NWLR (Pt.85) 729; STATE VS. DANJUMA (1997) 5 NWLR (PT 506) 512, G – H; Ubani v. State (2003) 18 NWLR (PT.851) 224 @ 241.
With what is left of the prosecution’s case has it been able to establish the above essential elements of the offence of Murder? The answer is definitely in the negative.
The first element that the deceased died was established with PW1’s oral evidence that she saw the corpse of the deceased in the hospital. The second element that the act of the appellant caused the injury that resulted in the death of the deceased was not proved. Learned counsel for the appellant is right that there was no evidence linking the cause of death of the deceased to the act or omission of the appellant. The interim post mortem report (Exhibit G) showed the cause of the death of the deceased but did not supply the necessary link to the appellant as the person who definitely inflicted the fatal wound on the deceased. There could have been other intervening circumstances that caused the death. Conviction for murder requires proof beyond reasonable doubt, whether by direct or circumstantial evidence. Learned counsel for the appellant is also right that Exhibits A and E, as well as F and F1 emanated from a person who, if she had given evidence, would have been regarded as a tainted witness, and the trial Court would have had to find corroborating evidence or at least warn itself, before relying on them; assuming they were admissible. Counsel reasoned that Joy Nwawe was the person who started the fight and participated actively in it. In the case of OKORO VS. STATE (1998) 14 NWLR (PT 584) 181 @ 215 – 216 H – A, the Supreme Court observed that:
“A tainted witness is a witness who might have his own purpose to serve in giving evidence. The court must warn itself before admitting his evidence if it agitates the mind of the court that a witness might be a tainted witness.”
See also the cases of ISHOLA V. THE STATE (1978) 9-10 SC (REPRINT) 59; OGUNYE V. THE STATE (1999) 4 SC 30; AKALONU V. THE STATE (2002) 6 SC (PART 11) 107.
The third element of the offence is that the appellant’s said action or omission was intentional with knowledge that death or grievous bodily harm would result therefrom. The statement of the appellant, Exhibit B is the only exhibit left. Therein, the Appellant denied causing the injury on the deceased. The learned trial judge ought to have given the appellant benefit of the doubt, given the inability of the prosecution to get the witnesses to come forward and testify as to what actually transpired on the fateful day.
Exhibit B (statement of the appellant to the police) did not admit any ingredient of the offence as charged but rather ran contrary to the totality of the Prosecution’s evidence in Court. Exhibits B & C once admitted in evidence formed part and parcel of prosecution’s case, and the learned trial judge did not carry out any evaluation of the exhibits. Counsel is right that the said Exhibits, which corroborated the uncontroverted oral evidence of the Appellant at trial, created material contradiction to the meagre evidence adduced by the prosecution. The Appellant’s oral evidence and the contents of Exhibit B ought to have created doubt in the mind of the Court. I agree with learned counsel for the appellant that the failure of the prosecution to call vital witnesses to give evidence at the trial was fatal to its case. Issue 3 is resolved in favour of the Appellant.
ISSUE 4:
1. Whether the learned trial judge properly evaluated the evidence in the case?
APPELLANT’S ARGUMENTS:
Learned counsel on issue 4 submitted that the learned trial judge did not properly evaluate all the evidence in the case. In particular counsel argued, his Lordship did not consider and evaluate the evidence of the appellant contained in Exhibits B and C, as well as his oral evidence in Court, which clearly contradicted the case of the prosecution and showed appellant was innocent of the charges.
Counsel submitted that the conclusion of the learned trial judge that the Appellant “caused the death of the deceased” was too hasty and without proper appraisal and evaluation of the evidence led before the Court at trial.
Counsel further submitted that at page 109 lines 20 – 24 of the Record, the learned trial judge also hastily concluded on defence evidence thus:
“I believe the evidence of the Prosecution witness and their exhibits tendered against the evidence of the Defendants who denied using anything to defend themselves when the deceased broke a bottle and used it on them and they sustained few injuries. It is a lie and an afterthought.”
Counsel submitted that the learned trial judge did not give reason for disbelieving evidence of the Appellant and that if the learned trial judge had properly considered and evaluated all the evidence in the case, the learned trial judge would have arrived at a different conclusion. Counsel urged the Court to acquit and discharge the Appellant.
RESPONDENT’S ARGUMENTS:
Counsel on issue 4 submitted that the principle for evaluation and appraisal of evidence has been laid down by the Supreme Court in the case of MOGAJI & ORS VS. ODOFIN & ORS (1978) 4 SC 373 which was also followed in the case of KOLO VS. LAWAN (2010) LPELR 4406 (CA) to the effect that:
“In the evolution of evidence, the trial Courts are guided by the following principles, namely:
(a) Whether the evidence is admissible;
(b) Whether the evidence is relevant;
(c) Whether the evidence is credible;
(d) Whether the evidence is conclusive and;
(e) Whether the evidence is more probable than that given by the other party.
Counsel submitted that in the instant appeal, the learned Trial Judge after considering and analyzing the facts and the evidence before the Court held in her judgment at page 109 of the record of appeal:
“I believe the evidence of the Prosecution witness and their Exhibits tendered against the evidence of the Defendants who denied using anything to defend themselves when the deceased broke a bottle and used it on them and they sustained injuries;
It is a lie and on afterthought.”
Learned counsel urged the Court to discountenance the argument of Appellant’s counsel as the learned Trial judge properly evaluated the evidence before convicting the Appellant.
RESOLUTION
Learned counsel for the respondent had cited the case of OGUONZEE VS. STATE (1998) 5 NWLR (Pt.551) 521 @ 544 A-C where Iguh JSC dealt with the attitude of appellate Court to evaluation of evidence and findings of fact by the trial Court in the following words:
“Where a Court of trial unquestionably evaluates the evidence and justifiably appraises the facts and arrives at a conclusion on the credible evidence, the appellate Court will not interfere with such findings of fact nor is it the business of such appellate Court to substitute its own views of the facts for those of the trial Court.
What the appellate Court ought to do is to scrutinize the record carefully and find out whether there is evidence on which the trial Court could have acted. Once there is such evidence on record from which the trial Court arrived at its findings of fact, the appellate Court cannot interfere with such findings.”
The learned trial judge in the case at hand cannot be said to have unquestionably evaluated the evidence and justifiably appraised the facts and arrived at conclusion on the credible evidence before it. The truth is that there was no credible evidence before it to evaluate. The exhibits he relied on were tendered by an IPO who did not receive the exhibits and knew nothing about their contents. The appellant consequently did not cross-examine on any of the exhibits. It is only where there has been proper cross-examination that a trial judge would be able to carry out an evaluation and appraisal of the facts of the case. Learned counsel for the appellant is right that the learned judge did not take a hard look at Exhibit B, the appellant’s statement to the police and his oral evidence in Court and to evaluate them viz a viz the exhibits tendered in respect of which there were no cross-examination. There is no evidence, direct or circumstantial to prove beyond reasonable doubt that the appellant murdered the deceased.
Suspicion, no matter how strong or even evidence of opportunity to commit the offence charged cannot replace legal proof of guilt. See ONAH V. STATE (1985) 3 NWLR (PT.12) 236; AJOSE V. THE STATE (2002) 7 NWLR (pt.766) 302 @ 319 D-E.
The learned judge did not consider dispassionately and did not evaluate properly the meagre evidence led by the prosecution in the matter. The exhibits were not credible and could not be relied on to convict for the simple reason that the appellant had no opportunity to cross-examine on them. The Prosecution ought to have endeavoured to call some eye witnesses who saw the fight between the appellant, his brother and the family of the deceased. Indeed the fact that the injury on the deceased occurred during a brawl made it expedient to get to the root of who did what during the fight and not to rely on Exhibits A and D, the statements of the wife of the deceased who participated in the brawl and had an interest to protect which statements were not subjected to cross-examination to test their credibility. Whilst it is true that it is not the function of an appellate Court to substitute its own views for those of the trial Court, but where the trial Court failed to properly evaluate the material before it, an appellate Court will, in the interest of justice, set aside its decision. OKUNZUA v. AMOSU (1992) 6 NWLR (Pt.248) 416 @ 430 – 431 H-A. Issue 4 is resolved in favour of the appellant.
In the final result, I find merit in the appeal and hereby allow it and quash the conviction and sentence imposed on the appellant by the Court below. Accordingly I enter a verdict of not guilty for the appellant and hereby acquit and discharge him of the offence charged.
TIJJANI ABUBAKAR, J.C.A.: My learned brother Iyizoba, JCA granted me the privilege to read in draft the Judgment just delivered. I entirely agree with the reasoning and conclusion.
I join my brother in allowing the appeal. I also set aside the conviction and sentence, and order that the Appellant be discharged and acquitted.
ABIMBOLA OSARUGUE OBASEKI-ADEJUMO, J.C.A.: I had a preview of the judgment just delivered by my learned brother, Chinwe Eugenia Iyizoba, J.C.A. and entirely agree with his reasoning and conclusions. However, I wish to reiterate that it is the duty of the trial judge to evaluate the evidence and to make primary findings of fact – OYIBO IRIRI & ORS. V. ERHURHOBARA & ANOR. (1991) LPELR-1536 (SC).
The appellant contended in his argument that his evidence contained in Exhibits B and C which contradicted the case of the Prosecution was not considered and evaluated. These are material facts which the trial Court ought to have considered before reaching its verdict. The failure of the trial judge to allow the above mentioned Exhibits to be examined and cross examined is fatal to the entire trial.
The Supreme Court in the case of FAGBENRO V. AROBADI & ORS. (2006) LPELR-1227, Per Onnoghen, JSC states:
“The law is therefore settled that where a trial judge abdicates the sacred duty of evaluation of evidence and approbation of weight thereto, or when he demonstrates that he had not taken proper advantage of his having heard and seen a witness testify, the matter becomes at large for the appellate court or better put, in such a situation an appellate court is in as good a position as the trial court to evaluate the evidence provided the exercise does not involve credibility of the witnesses who testified at the trial.”
Also in, ROYAL ADE NIG. LTD & ANOR. V. N.O.C.M. CO. PLC. (2004) LPELR-2959, Per Edozie, J.S.C. states;
“It is common place that where a trial judge has failed to properly evaluate the evidence adduced before him, an appeal court may be free to draw its own inferences from the facts.”
See also FATOYINBO V. WILLIAMS (1956) SCNLR 274; MOGAJI V. ODOFIN; MUSA V. YERIMA (1997) 7 NWLR (PT.511) 27.
It is material in this appeal that the appellant should have been accorded fair hearing by examining him on his statement before the trial Court reached its decision. In the event of this ineptitude, I hold that this appeal is meritorious.
For this reasons and the more comprehensive reasoning contained in the judgment delivered by my learned brother, this appeal is meritorious and it is hereby allowed. The conviction of the trial Court is erroneous and is hereby set aside. I too order that the appellant is discharged and acquitted.
Appearances
E.C. OBIAGWU ESQ., with P. OKOROIGWE (MRS.) and A. OGUNDEYI (MISS)For Appellant
AND
RESPONDENT not represented.For Respondent
