CHRISTIAN NWABUNIKE v. THE STATE (2019)

CHRISTIAN NWABUNIKE v. THE STATE

(2019)LCN/13361(CA)

In The Court of Appeal of Nigeria

On Monday, the 27th day of May, 2019

CA/J/279CA/2017

RATIO

CROSS EXAMINATION: DEFINITION AS PROVIDED FOR UNDER SECTION 214(2) OF THE EVIDENCE ACT LFN 2004

By Section 214 (2) of the Evidence Act (as amended), the examination of a witness by a party other than the party that called him is cross examination.PER UCHECHUKWU ONYEMENAM, J.C.A

CROSS- EXAMINATION: LIMITATIONS IN CROSS EXAMINATION

The trite phrase that the sky is the limit of cross examination is only but a myth. The Law itself is smacked of limitations and the law of cross examination is definitely not an exception in our law of procedure. Certainly, relevancy is a limitation in all the three types of examination, including cross examination. See: ISHENO V. JULIUS BERGER (NIG.) PLC. (2008) LPELR 1544 (SC).PER UCHECHUKWU ONYEMENAM, J.C.A

CROSS EXAMINATION: THE REASON WHY A PARTY WILL ENTITLED TO CROSS EXAMINE ON A DOCUMENT

For a party to be entitled therefore to cross examine on any document it must be shown that the document is relevant to the case and there is no how a Court can ascertain whether a document is relevant in a matter when the document is not before it.PER UCHECHUKWU ONYEMENAM, J.C.A

JUDGMENT: THERE IS NO SPECIFIC STYLE TO HOW A JUDGE SHOULD WRITE HIS JUDGMENT

It is trite that there is no hard and fast Rule or set standard in the style of a Courts decision. Every Judge has the freedom to use the peculiar method suitable for his purpose or which enables him perform his duty of judgment writing without undue stress. In doing that however a Judge must remind himself that the components of a proper decision ought to be present and must equally show that the judgment is a fair, impassionate consideration of how the verdict came to be from his evaluation of the evidence put forth by the parties. See MBANEFO V. MOLOKWU & ORS. (2014) LPELR – 22257 (SC); TRADE BANK PLC V. CHAMI (2003) 13 NWLR (PT. 836) 158; DURU V. NWOSU (1989) 4 NWLR (PT. 13) 24; CIROMA V. ALI (1999) 2 NWLR (PT. 590) 317; N.B.C PLC V. BORGUNDU (1999) 2 NWLR (PT. 591) 408; SANUSI V. AMEYOGUN (1992) 4 NWLR (PT. 237) 527. The apex Court in DURU V. NWOSU (SUPRA) 24 AT 55 per Nnaemeka Agu, JSC: said;
“This is why I think it is not too late to say that there is no set standard or set approach to the writing of judgments. For over the years, not only have definite parts of good judgment emerged although they remain usually unnamed, but in particular, there is now only one for evaluating of evidence in a civil case. Every good judgment begins with an introduction of the parties and the nature of the action, states the issues in controversy, summons up the evidence called by each party, resolves the issues in controversy, and based upon such resolution of issues, reach a verdict and makes consequential orders.PER UCHECHUKWU ONYEMENAM, J.C.A

FAIR HEARING: THE PROVISION OF SECTION 36 (6) (B) OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA

In ADEOYE V. STATE (2011) LPELR 9091 (CA); this Court reproduced the position of the law as stated by the Apex Court thus:
“A perusal of Section 36 (6) (b) and (c) of the Constitution of the Federal Republic of Nigeria would reveal that this matter goes beyond legal technicalities. The net effect of the sections is that an accused person must be afforded adequate time and facilities for the preparation of his defence and to defend himself in person or by a legal practitioner of his own choice. Indeed, such is the robust corpus of case law on this question that one may, legitimately, speak of the jurisprudence of legal representation in capital offences. Our survey of these cases reveals that the following broad principles crystallize from them: An accused person must be represented by counsel at every stage of the proceedings in a trial for a capital offence, UDO V. THE STATE (1988) 6 SCNJ 181, 199; UDOFIA V. STATE (1988) 7 SCNJ (PT. 1) 118, 123; the provisions are mandatory and not directory, UDO V. THE STATE (1988) 6 SCNJ 181, 199; the emphasis here is that such an accused person must be represented by counsel throughout the proceedings, JOSIAH V. STATE (1985) 1 NWLR (PT. 1) 125; (1985) 1 NSCC (VOL. 16) 132; SAKA V. STATE (1981) 11-12 SC 65; (1981) NSCC (VOL.12) 474.PER UCHECHUKWU ONYEMENAM, J.C.A

THE DUTY OF A COURT WHEN AN ACCUSED IS UNREPRESENTED BY A COUNSEL

Thus, where, as in this case, the accused person was unrepresented by counsel, the trial Court had no choice than to adjourn the matter “as the counsel whether briefed or assigned must be present and defend such an accused person. Indeed, it is the accused person’s right to get an adjournment once the counsel briefed by, or assigned to him is absent” Per Nnaemeka-Agu JSC in UDO V. STATE (SUPRA) 187; ALSO, UDOFIA V STATE (1988) 7 SCNJ (PT. 1) 118, 123; this is so because the representation of any person accused of the commission of an offence by a legal practitioner at the trial is one of the fundamental rights guaranteed by Section 36 of the 1999 Constitution: a section which introduces or perpetuates what Lord Denning referred to as “the fundamental principle of a fair trial”, TAMESHWAR V. THE QUEEN (1975) A-C 476, 486, approvingly cited in UDO V. STATE (SUPRA) 189; thus, if the charge is for a capital offence and the accused person is unrepresented by counsel of his choice, the Court has a statutory duty to provide such representation, NEMI V. STATE (1994) 10 SCNJ 1, 29. A trial involving a capital offence cannot be said to be fair when an accused person, standing trial for his life, has to conduct the case himself, at any stage of the trial, as against the counsel for the prosecution, who is, almost always, the Director of public Prosecutions, UDO V. STATE (supra). To permit such an accused person to “slug out his defence…against the prosecution” would be contrary to the spirit of Section 36 (6) (c) and (d) of the Constitution, UDO V. STATE (SUPRA); THE STATE (HEARLY) V DONOGHUE (1976) 1 R 325 (decision of the Irish Supreme Court), adopted approvingly in UDO V. STATE (SUPRA) 189.PER UCHECHUKWU ONYEMENAM, J.C.A

CRIMINAL LAW AND PROCEDURE: WHERE A PIECE OF EVIDENCE CAN BE INTERPRETED IN MIRE THAN ONE WAY

Where in a criminal trial, a piece of evidence is capable of more than one interpretation; the Court is mandated to adopt the interpretation that is more favorable to the accused person. See: BELLO V. THE STATE (2018) LPELR 43977 (CA); CLARK EJUREN V. COMMISSIONER OF POLICE (1961) ALL NLR 478; UDO AKPAN ESSIEN V. STATE (1961) NMLR 229.PER UCHECHUKWU ONYEMENAM, J.C.A

JUSTICES

UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria

Between

CHRISTIAN NWABUNIKE Appellant(s)

AND

THE STATE Respondent(s)

UCHECHUKWU ONYEMENAM, J.C.A.(Delivering the Leading Judgment): This appeal is against the decision of the High Court of Yobe State, presided over by Ali Garba, J. sitting at Potiskum/Damaturu in which he convicted and sentenced the Accused Person – Christian Nwabunike (now Appellant) to death by hanging until certified dead for the offence of armed robbery contrary to and punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act Cap 398 Laws of the Federation of Nigeria 1990.

Dissatisfied with the said judgment, the Appellant herein with the other Accused Persons at the trial Court filed a joint Notice and Grounds of Appeal on 10th April, 2017. The referred joint Notice and Grounds of Appeal being irregular, by the order of this Court made on 27th June, 2018, the Appellant?s Amended Notice of Appeal dated 10th April, 2018 but filed 20th April, 2018 was deemed properly filed and served.

?The Appellant and the co-convicts at the trial Court in Case No. YBS/DT/HC/28C/2008 on 26th July, 2008, pleaded not guilty to the charge and the case went to trial. The Prosecution called four witnesses who

testified. There was trial within trial to establish the voluntariness of the extra judicial statement of the Appellant. At the end of the trial within trial, the learned trial Judge found that the extra judicial statements of the Appellant and the co convicts were made voluntarily. The extra judicial statement of the Appellant at the trial Court was admitted in evidence as Exhibit “A?, while Exhibit “D” is the statement of PW4 (the victim). The Prosecution thereafter closed its case and the Appellant was called upon to enter his Defence.

The trial Court adjourned the case for Defence to 14th July, 2014 but no record is available as to why Defence could not commence till 7th March, 2016. The Appellant testified without calling any witness. The case was adjourned for addresses and counsel addressed the Court orally on 20th April, 2016. The trial Court adjourned its judgment to 31st May, 2016 but eventually Judgment was not delivered till 14th February, 2017 wherein the Appellant was found guilty, convicted and sentenced to death by hanging until certified dead.

?On 7th March, 2019 this appeal was heard. A. U. THEOPHILUS Esq. appeared for the

Appellant while U. ISMAILA Esq. Chief State Counsel Ministry of Justice Yobe State appeared for the Respondent. Mr. Theophilus referred to the Appellant?s Amended Notice of Appeal filed 20th April 2018 but deemed properly filed and served 27th June, 2018, and the Appellant?s brief filed 27th July 2018. He adopted the brief in urging the Court to allow the appeal. Mr. Ismaila adopted Respondent?s brief filed 16th November, 2018 in urging the Court to dismiss the appeal.

In the Appellant?s brief, Mr. B.P. Ndam distilled 3 issues for the determination of the appeal. The issues are:
ISSUE 1: Whether the Prosecution proved beyond reasonable doubt that the statement of the Appellant tendered and marked as EXH. “A? was voluntarily made?
ISSUE 2: Whether the Prosecution proved the offence of armed robbery against the Appellant beyond reasonable doubt to warrant his conviction and sentence to dead by hanging?
ISSUE 3: Whether the learned trial judge was in a position to properly recollect his impression of those who testified before him and the evidence adduced during the trial in view of the lapse of precisely eight

months and fourteen days from the adoption of the oral address to the delivery of judgment. Specifically whether oral address can substitute the position of written address in Superior Courts of Record in Nigeria?

Mr. Saleh Dibbo Gadaka, of the Attorney General?s Chambers, Yobe State who prepared the Respondent?s brief adopted the issues for determination as formulated by the Appellant.

That being the case, I adopt the issues raised by the parties for the determination of this appeal. However I will resolve them in order of Issue 1, Issue 3 and Issue 2.

SUBMISSIONS ON ISSUE 1
?Whether the Prosecution proved beyond reasonable doubt that the statement of the Appellant tendered and marked as EXH. ?A? was voluntarily made? (Ground Three of the Amended Notice of Appeal)?
Mr. Ndam submitted that the ruling of the trial Court delivered 19th December, 2011 overruling the objection of the Appellant’s counsel and admitting the extra judicial statement of the Appellant in evidence and marking same as Exhibit ?A? is wrongful. He noted that in the trial-within-trial which commenced on 30th November,

2010, the PW1 testified and during cross-examination, counsel to the Appellant applied to have the statement of the Appellant for cross-examination but the Prosecution objected on the basis that the document was not yet before the Court and that same had been served on counsel to the Appellant and the trial Court overruled the application of the counsel to the Appellant. The learned counsel contended on this, that the refusal of the application of the counsel to the Appellant to have access to the original copy of the extra judicial statement of the Appellant to compare and cross examine PW1 thereon was a fundamental error by the trial Court which affected the Appellant’s right to fair hearing. He urged the Court to expunge Exhibit “A? from the records as the same was wrongly admitted.

It was the learned counsel?s further contention that the trial Court did not properly evaluate the evidence of PW1 during the trial-within-trial arguing that from the evidence of PW1 in chief and under cross-examination, the Appellant never made or signed his statement as he was not physically present. He also argued that the evidence of PW2 in the

trial-within-trial was contradictory as PW2 stated in examination in chief and during cross-examination that Exhibit “A” is a product of question and answer.

Mr. Ndam also submitted that at the conclusion of the trial-within-trial, in the learned trial Judge?s considered ruling on the voluntariness or otherwise of the extra judicial statement of the Appellant; he failed to adduce any reason as to why he was satisfied that the extra judicial statement of the Appellant was voluntarily made. He pointed out that the law imposes a duty on the Prosecution to prove the voluntariness of an extra judicial statement by credible and substantial evidence and to contradict the accused person’s allegation of having been forced to make the statement. He cited: EMEKA V. STATE (2001) 14 NWLR (PT. 734) 666. He highlighted the evidence of the Appellant in the trial within trial to submit that the Prosecution did not contradict his evidence under cross-examination.

He urged the Court to find that the Prosecution did not prove beyond reasonable doubt that the extra judicial statement of the Appellant was voluntarily made and to accordingly expunge same, and resolve

issue 1 in favour of the Appellant.

In a negative reaction to the Appellant?s position, Mr. Gadaka in the Respondent?s brief summarized the evidence of the 3 witnesses called by the prosecution during trial within trial as opposed to the Appellant who called no witness to submit that the prosecution proved that the Appellant made his extra judicial statement (Exhibit A) voluntarily and that the trial Court was right to so hold. He referred to: SAUNDERS V. ANGLIA BUILDING SOCIETY (1971) A – C: 1004; EGBASE V. ORIAREGHAN (1985) LPELR- 1030 (SC).

On the refusal of the application of counsel to the Appellant to have access to the original copy of the extra judicial statement of the Appellant to compare and cross examine PW1, Mr. Gadaka submitted that it was apt and did not affect the Appellant?s right to fair hearing as the photocopy of his extra judicial statement as recorded by the police during investigation was transmitted to the Appellant’s counsel before trial commenced. He referred to the holding of the trial Court at page 67 lines 20-25 of the record of proceedings. The learned counsel for the prosecution also argued that the

refusal of the said application had nothing to do with the spirit of fair hearing as the application was made during trial within trial when the prosecution was trying to prove the voluntariness of the statement and not during main trial in determining its admissibility. He again referred to lines 17-20 at page 67 of the record of proceedings in urging the Court to hold that the admission of the Appellant?s extra judicial statement as Exhibit ?A” did not infringe on the fundamental right of the Appellant since it did not occasion a miscarriage of justice to the content. He cited: Section 251 (2) of the Evidence Act.

?Furthermore the learned legal officer noted that the Appellant after giving his statement to the IPO Sgt. Garba Musa he signed and the said IPO signed too but at the office of Asp. Emmanuel Yakubu the Appellant signed and at the same time thumb printed the statement after it was read to him by Asp. Emmanuel Yakubu in the presence of Sgt. Garba Musa the IPO. He argued that there was nothing wrong in law for a literate person to affix his thumb print on and or sign a document as both are one and the same method of authenticating a

document emanating from a maker. He cited:UBA PLC. V. MUSTAPHA (2004) 1 NWLR (PT. 855) 443. He urged the Court to hold that Exhibit “A” was obtained from the Appellant by the police voluntarily.

On whether the learned trial Judge gave reasons for admitting Exhibit A, the learned counsel for the Prosecution referred to page 77 lines 22?26 of the Trial Court record of proceedings to answer in the positive.

On the absence of legal representation for the Appellant when the ruling for the trial within trial was delivered, Mr. Gadaka submitted that the absence of Appellant?s counsel when a ruling was delivered on trial within trial to ascertain the voluntariness of the Appellant?s extra judicial statement did not occasion any miscarriage of justice. He argued that the scenario was not fatal to the merit of the case as it did not occasion a miscarriage of justice. He urged the Court to hold that mere delivery of ruling in trial within trial in the absence of counsel to the Appellant did not breach any of the fundamental rights of the Appellant.

The learned counsel accordingly, urged the Court to resolve the issue in favour of the Respondent.

RESOLUTION OF ISSUE 1
By Section 214 (2) of the Evidence Act (as amended), the examination of a witness by a party other than the party that called him is cross examination. In the case at hand the Appellant?s counsel applied to cross examine the Prosecution witness on a document which was not before the Court. The Prosecution had sought to tender the extra judicial statement of the Appellant in evidence while PW1 the IPO testified and the Appellant?s counsel objected on ground that the extra judicial statement was not voluntarily made by the Appellant whereupon a trial within trial was conducted. In the trial within trial the Appellant?s counsel applied to make use of the Appellant?s extra judicial statement to cross examine PW1. The application was refused by the learned trial Judge for the reasons that the document was not before the Court, it was premature to cross examine the witness on a document which the Court had not decided its voluntariness, and that it was trial within trial and not the main trial.

?The trite phrase that the sky is the limit of cross examination is only but a myth. The Law itself is

smacked of limitations and the law of cross examination is definitely not an exception in our law of procedure. Certainly, relevancy is a limitation in all the three types of examination, including cross examination. See: ISHENO V. JULIUS BERGER (NIG.) PLC. (2008) LPELR ? 1544 (SC). For a party to be entitled therefore to cross examine on any document it must be shown that the document is relevant to the case and there is no how a Court can ascertain whether a document is relevant in a matter when the document is not before it. Herein, the extra judicial statement of the Appellant in question was not before the trial Court and the proceedings wherein the Appellant?s counsel applied to make use of it under consideration for cross examination was in a trial within trial to ascertain its voluntariness and thereby its relevancy. I hold that since the statement was not before the Court and its relevancy not ascertained, the learned trial Judge was right when it refused the Appellant?s counsel application to cross examine the PW1 on the statement.

?On this issue the learned counsel for the Appellant also contended that the learned trial Judge

did not properly evaluate the evidence of PW1 and PW2 before arriving at the conclusion that the extra judicial statement of the Appellant was voluntarily made. In trying to prove that Exhibit “A” was made voluntarily a trial within trial was ordered by the trial Court and three (3) witnesses who were present when the Investigating Police Officer recorded the statement of the Appellant all testified to the effect that the statement of the Appellant which was made in their presence was made voluntarily without duress, threat, promise or otherwise.

?PW1 – Sgt. Garba Musa who was the IPO, in the trial within trial stated that he recorded the confessional statement of the Appellant voluntarily in the presence of Insp. Habu Mohammed, Sgt. Hamidu Magaji and Cpl. George Abot in the State CID Damaturu, interrogation room. See: lines 13-16 at page 66 of records. He further testified that the Appellant was fine and had no problem as he was well and comfortably seated when he took his statement (Exhibit “A”). See: page 66 lines 16 and 17 of the record of proceedings. In the PW1?s evidence he equally stated that he first cautioned the Appellant in English

language to his understanding before recording the Appellant?s statement in English as the Appellant spoke in English. He then read it over to him in the same English language after which he signed same to be his statement and PW1 as a recorder counter signed it. See: lines 17-20 at page 66 of the record of proceedings. PW1 continued that after the Appellant signed his confessional statement he took him to his superior officer Asp. Emmanuel Yakubu for endorsement. That he was with the Appellant in his superior officer’s office when he admitted that he made (Exhibit “A”) before he thumb printed it and Asp. Emmanuel Yakubu signed it. See: page 66 lines 21-23 of the record of proceedings.

The PW2 – Insp. Habu Mohammed in the trial within trial told the Court that he was together with CpI. George Obot when Sgt. Garba Musa recorded the statement of the Appellant which was made voluntarily. See: lines 1-10 at page 68 of the record of proceedings.

Again PW3 – Lukong Patrick of the Nigerian Police in the trial within trial testified that he shared the same office with Asp. Emmanuel Yakubu the superior officer to Sgt. Garba Musa the IPO in the matter.

Refer to page 72 lines 1-3 of the record of proceedings. He stated that Asp. Emmanuel Yakubu read the statement of the Appellant in his presence and in the presence of the Appellant who agreed to have made it voluntarily and signed it and Asp. Emmanuel Yakubu endorsed the statement (Exhibit “A”). See lines 30-33 at page 72 and lines 1-4 at page 73 of the record of proceedings.

The Appellant testified and called no witness. He gave evidence of how he was tortured for days for him to sign a statement he did not make.

In his ruling the learned trial Judge simply said ?I have considered the evidence of both the prosecution and defence witnesses and I am of the opinion that the statement was voluntarily made. Accordingly the objection is hereby overruled.?

It is trite that there is no hard and fast Rule or set standard in the style of a Court?s decision. Every Judge has the freedom to use the peculiar method suitable for his purpose or which enables him perform his duty of judgment writing without undue stress. In doing that however a Judge must remind himself that the components of a proper decision ought to be present and must

equally show that the judgment is a fair, impassionate consideration of how the verdict came to be from his evaluation of the evidence put forth by the parties. See MBANEFO V. MOLOKWU & ORS. (2014) LPELR – 22257 (SC); TRADE BANK PLC V. CHAMI (2003) 13 NWLR (PT. 836) 158; DURU V. NWOSU (1989) 4 NWLR (PT. 13) 24; CIROMA V. ALI (1999) 2 NWLR (PT. 590) 317; N.B.C PLC V. BORGUNDU (1999) 2 NWLR (PT. 591) 408; SANUSI V. AMEYOGUN (1992) 4 NWLR (PT. 237) 527. The apex Court in DURU V. NWOSU (SUPRA) 24 AT 55 per Nnaemeka Agu, JSC: said;
“This is why I think it is not too late to say that there is no set standard or set approach to the writing of judgments. For over the years, not only have definite parts of good judgment emerged although they remain usually unnamed, but in particular, there is now only one for evaluating of evidence in a civil case. Every good judgment begins with an introduction of the parties and the nature of the action, states the issues in controversy, summons up the evidence called by each party, resolves the issues in controversy, and based upon such resolution of issues, reach a verdict and makes consequential orders.?

From these guides stated above as mirrored in the judicial authorities I have set out, the Appellant herein is correct that the ruling of the trial Court in the trial within trial is everything short of a good ruling, but the Appellant was not able to show how he was prejudiced or how a miscarriage of justice was occasioned by the failure of the learned trial Judge to write an elegant ruling. While Judges are encouraged to write elegant judgments or rulings that shall contain definite parts of a good decision, I must state however that it is not every default in the style of judgment writing that would vitiate a judgment once what the Court has done meets the minimum standard of a good judgment and nothing shows that a miscarriage of justice had taken place, the peculiar style utilized by the judge notwithstanding. Having said that, I hold the ruling in question met the balance of justice irrespective of the fact that it is not an embodiment of a good decision. See:UDE V. STATE (2016) LPELR ? 40441 (SC); ARIORI V. ELEMO (1983) 1 SC 13; NDUKWE V. THE STATE (2009) 2-3 SC (PT. II) 34 AT 78; ADAMU V. STATE (1991) 6 SC 17; ONUOHA V. THE STATE (1988) 3 NWLR (PT. 83) 460.

Furthermore, I hold that the evidence of the Prosecution in the trial within trial is cogent and credible as to the manner and procedure the Appellant?s statement was recorded by the PW1 at the Police State CID?s interrogation room in the presence of other police officers and also how the statement was endorsed by a superior officer in the presence of PW3. I am unable to fault the Prosecution?s evidence herein despite the lone evidence of the Appellant that he was threatened and tortured to sign the statement he did not make. I therefore agree with the learned trial Judge that the Appellant?s statement was voluntarily made.

On the absence of legal representation for the Appellant when the ruling for the trial within trial was delivered, Mr. Gadaka submitted that the absence of the Appellant?s counsel when the ruling was delivered on the trial within trial to ascertain the voluntariness of the Appellant?s extra judicial statement did not occasion any miscarriage of justice. Mr. Theophilus for the Appellant contended that an accused person must be represented by a counsel at all material time and the

delivery of the ruling in the absence of all the defence counsel despite the fact that G. Onoja Esq. who was instructed to hold brief for the Appellant?s counsel was sick, was in breach of the principle of fair hearing of the Appellant herein. In ADEOYE V. STATE (2011) LPELR 9091 (CA); this Court reproduced the position of the law as stated by the Apex Court thus:
“A perusal of Section 36 (6) (b) and (c) of the Constitution of the Federal Republic of Nigeria would reveal that this matter goes beyond legal technicalities. The net effect of the sections is that an accused person must be afforded adequate time and facilities for the preparation of his defence and to defend himself in person or by a legal practitioner of his own choice. Indeed, such is the robust corpus of case law on this question that one may, legitimately, speak of the jurisprudence of legal representation in capital offences. Our survey of these cases reveals that the following broad principles crystallize from them: An accused person must be represented by counsel at every stage of the proceedings in a trial for a capital offence, UDO V. THE STATE (1988) 6 SCNJ 181, 199;

UDOFIA V. STATE (1988) 7 SCNJ (PT. 1) 118, 123; the provisions are mandatory and not directory, UDO V. THE STATE (1988) 6 SCNJ 181, 199; the emphasis here is that such an accused person must be represented by counsel throughout the proceedings, JOSIAH V. STATE (1985) 1 NWLR (PT. 1) 125; (1985) 1 NSCC (VOL. 16) 132; SAKA V. STATE (1981) 11-12 SC 65; (1981) NSCC (VOL.12) 474. Thus, where, as in this case, the accused person was unrepresented by counsel, the trial Court had no choice than to adjourn the matter “as the counsel whether briefed or assigned must be present and defend such an accused person. Indeed, it is the accused person’s right to get an adjournment once the counsel briefed by, or assigned to him is absent” Per Nnaemeka-Agu JSC in UDO V. STATE (SUPRA) 187; ALSO, UDOFIA V STATE (1988) 7 SCNJ (PT. 1) 118, 123; this is so because the representation of any person accused of the commission of an offence by a legal practitioner at the trial is one of the fundamental rights guaranteed by Section 36 of the 1999 Constitution: a section which introduces or perpetuates what Lord Denning referred to as “the fundamental principle of a fair trial”, TAMESHWAR V. THE QUEEN

(1975) A-C 476, 486, approvingly cited in UDO V. STATE (SUPRA) 189; thus, if the charge is for a capital offence and the accused person is unrepresented by counsel of his choice, the Court has a statutory duty to provide such representation, NEMI V. STATE (1994) 10 SCNJ 1, 29. A trial involving a capital offence cannot be said to be fair when an accused person, standing trial for his life, has to conduct the case himself, at any stage of the trial, as against the counsel for the prosecution, who is, almost always, the Director of public Prosecutions, UDO V. STATE (supra). To permit such an accused person to “slug out his defence…against the prosecution” would be contrary to the spirit of Section 36 (6) (c) and (d) of the Constitution, UDO V. STATE (SUPRA); THE STATE (HEARLY) V DONOGHUE (1976) 1 R 325 (decision of the Irish Supreme Court), adopted approvingly in UDO V. STATE (SUPRA) 189. In all, the weight of judicial authorities preponderates in favour of the view that an accused standing trial for a capital offence must be defended by counsel at every stage of the trial.” Per CHIMA CENTUS NWEZE, J.C.A
The word at every stage of the trial is

unambiguous and the literal meaning is that the Court has a legal duty not to proceed at any stage or any point of the proceedings involving a trial of an accused person in a capital offence without the accused person?s counsel presence in the Court. It does not matter whether or not there was a miscarriage of justice by such a procedure as the rule of technicality does not apply to it. Thus, once an accused standing trial for a capital offence is denied an opportunity to be represented at any stage of the trial, the right to fair hearing of the accused person under Section 36 (1) of the Constitution will be held violated meaning the trial no matter how well conducted becomes a nullity. See UDOFIA V. STATE (1988) LPELR ? 3305 (SC) where the Supreme Court held:
?It is fundamental to a fair trial of a serious criminal charge that the accused person should not be left unrepresented at any stage of the trial?. ALO R. V. MARY KINGSTON (1948) 2 CR. APP R. 183.
In the instant case, the Appellant?s counsel was not present in Court and instructed another counsel to hold his brief. Unfortunately, Mr. Onoja fell sick and

communicated the Court why he was not present in Court to represent the Appellant in the proceedings of the day howbeit for the ruling of the trial within trial of the case. The sacrosanct nature of the strict requirement of legal representation for an accused standing trial for a serious criminal charge as capital offence, was echoed in MUHAMMED V. STATE (2014) LPELR ? 24623 (SC); thus:
?Our law is strict and seems to favour the accused person especially with regards to the fairness and transparency of his trial. Lack of legal representation is even stricter when it has to do with the trial of a person accused of an offence punishable with death as in the instant appeal. This is so abundantly safeguarded by our laws and is sacrosanct that it cannot be waived” See also JOSIAH V. STATE (1985) 1 SC 406; wherein the Supreme Court added that the trial of such an accused without a legal representation is a denial of his right to fair hearing.? Per Abbah Aji, JCA (as she then was) Now JSC.
In the instant case it is more curious that the learned trial Judge was not meticulous in his recording of the non-appearance of the

Appellant?s counsel. He did not state whether the counsel by reason of his sickness applied for adjournment or obliged the Court to go ahead with its ruling. Where in a criminal trial, a piece of evidence is capable of more than one interpretation; the Court is mandated to adopt the interpretation that is more favorable to the accused person. See: BELLO V. THE STATE (2018) LPELR ? 43977 (CA); CLARK EJUREN V. COMMISSIONER OF POLICE (1961) ALL NLR 478; UDO AKPAN ESSIEN V. STATE (1961) NMLR 229. Where if the Appellant?s counsel applied for adjournment to be able to represent the Appellant for a particular reason and the learned trial Judge did not rule either way nor asked the Appellant if he was ready to proceed without his counsel, that still amounts to denial of the Appellant of legal representation and his ensuing right to fair hearing. From the proceedings, the state of the trial at which the learned trial Judge proceeded to deliver his ruling in trial within trial without a legal representation for the Appellant makes for more than one interpretation, one in the Appellant?s favour and the other against him. And since there was no

detailed recording of the trial Court, it will be presumed that the Appellant?s counsel who was sick wrote for adjournment to be present in Court for specific reasons which the trial court refused to oblige without reason and thereby denied the Appellant legal representation for the day?s proceedings. I insist that from the sacrosanct nature of the law on requirement of legal representation for an accused person standing trial for a capital offence, it is immaterial what the day?s proceedings was set down for as what is paramount is whether the Appellant had and was allowed legal representation or not. In the absence of evidence that the presence of the Appellant?s counsel was excused by him or his counsel, I hold that the Appellant?s right to fair hearing was breached.
?For this sole reason, I accept the Appellant?s contention that the ruling of the trial Court rendered in the absence of the Appellant?s counsel being a breach of his right to fair hearing to wit; right to legal representation in all proceedings or stages of his trial in a capital offence; there is therefore merit in the submissions of the

Appellant in that regard. In view of the above, I hold that the ruling of the trial Court on the trial within trial is null and void.

Having said that, I must note at this point that trial-within-trial is only used to test the voluntariness of a confessional statement; not what value or weight that will be attached to evidence. Accordingly, the issue of voluntariness is kept distinct and separate from the issue of guilt. After all, the guilt of an accused person can be established without recourse to his extra judicial statement where there is cogent credible evidence of Prosecution witnesses. In trials therefore the enquiry into voluntariness of an extra judicial statement abides in a confine that is separate from the main trial. See: IDAGU V. THE STATE (2018) LPELR – 44343 (SC); IFARAMOYE V. THE STATE (2017) LPELR-42031 (SC). For this position of the law, I shall not conclude this judgment based on my holding that the ruling in the trial within trial was a nullity. I shall proceed to resolve the other 2 issues.

SUBMISSIONS ON ISSUE 2
?Whether the learned trial judge was in a position to properly recollect his impression of those who

testified before him and the evidence adduced during the trial in view of the lapse of precisely eight months and fourteen days from the adoption of the oral address to the delivery of judgment.?

Mr. Ndam the learned counsel for the Appellant submitted that the trial Court was wrong in its judgment delivered on 14th February, 2017 when it convicted the Appellant and sentenced him to death by hanging as a result of lost of impression of those who testified before it in view of the lapse of precisely eight months and fourteen days from the adoption of the oral address to the delivery of judgment and this occasioned a miscarriage of justice to the Appellant.

The learned counsel noted that hearing of the case commenced on 3rd June, 2008 and evidence was concluded on 7th March 2016. Written addresses were adopted on 20th March, 2016 and judgment was eventually delivered on 14th February, 2017 which is precisely eight months and fourteen days from the adoption of the oral address contrary to the provisions of Section 294(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).

Mr. Ndam invited the Court to observe that the

record of the trial Court went blank from 23rd June, 2014 till 7th March, 2016 when the trial Court adjourned for addresses of counsel. He noted that, that was a period of nineteen months seven days to address the Court. He referred to the record of appeal at pages 101-109. The learned counsel submitted that: the two prolonged adjournments that is from 23rd June, 2014 till 7th March, 2016 when the trial Court adjourned for addresses of counsel; and from 20th April, 2016 to 14th February, 2017 when judgment was delivered coupled with the prolonged trial from 3rd June, 2008 to 14th February, 2017 drastically affected the ability of the learned trial Judge to properly recollect his impression of those who testified before him and the evidence adduced during the trial in view of lapses of the above stated period of time and this seriously occasioned a miscarriage of justice to the Appellant; and the same offends Section 294(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) which makes it mandatory for judgment to be delivered within three months from the date of final addresses.

?He went further to highlight some instances of the

effect of the delay on the appraisal of evidence by the trial Court to submit that from the errors highlighted, it is obvious that an objective and thorough appraisal of the issues of law and facts was not done thus occasioning a grave miscarriage of justice to the Appellant.

The learned counsel urged the Court to hold that the judgment of the trial Court is a nullity as same was delivered without jurisdiction having been delivered outside the constitutionally prescribed period. He cited: MADUKOLU V. NKEMDILIM (1962) 1 ALL NLR 587; J.C. LTD. V. EZENWA (1996) 4 NWLR (PT. 443) 391.

He also quarreled with the procedure adopted by the trial Court, to wit: oral address without a formal written address. He contended that this procedure is unknown to superior Courts of record in Nigeria. He submitted that the breach of the procedure of filing written addresses by counsel and the substitution of same with oral addresses is a dangerous precedent which robed the trial Court of its jurisdiction. He urged the Court to so hold and to resolve issue 2 in favour of the Appellant.

Mr. Gadaka in the Respondent?s brief submitted that the trial Court was

properly in a position to recollect his impression of those who testified before it during the trial notwithstanding the lapse of time from the adoption of oral addresses to the delivery of judgment as the elapsed time in question was not much and so not fatal to the judgement since it did not occasioned a miscarriage of justice. He cited: INTERNATIONAL BANK OF WEST AFRICA V. FOLA SASEGBON (2007) 16 NWLR (PT. 1059) 195; SECTION 294 (1) OF 1999 CONSTITUTION

He contended that the Appellant’s submission did not show any miscarriage of justice that adversely affected the Appellant. His reason that the prolonged trial from 3rd June, 2008 to 14th February, 2017 drastically affected the ability of the learned trial judge to properly recollect his impression of those who testified before him was a mere assumption. He further submitted that the delay made by the trial Court in delivering its judgement did not occasion miscarriage of justice as it gave reasons for the delay. He urged the Court to hold that the trial Court delivered its decision within its jurisdiction.

?The learned counsel for the Respondent also submitted that PW2 Asp. Habu Mohammed told the

trial Court that the investigation showed that the Appellant and 2 other convicts were in the house of one Alhaji Lawan Madugu on 20th August, 2008 and robbed his family of some money, jewelleries and cell phone and never stated that they robbed one Mohammed Nawaita as the Appellant submitted. He referred to page 84 lines 11-21 of the Records.

Again it was also the Respondent?s submission that the trial Court was right to have relied on the oral addresses of both the prosecution and defence to arrive at its judgment as there was no irregularity with the procedure as alleged by the Appellant. He argued that the trial Court had the right to even dispense with the oral addresses of parties and yet arrive at a just and fair judgement once the facts are straight forward as are in the instance case. He submitted that it is a settled law that an accused person who acquiesced to an irregular procedure that did not lead to a miscarriage of justice cannot complain about the procedure on appeal. UWAEKWEGHINYA V. THE STATE (2005) LPELR – 3442 (SC).

The learned counsel finally urged the Court to resolve the issue in favour of the Respondent.<br< p=””

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RESOLUTION OF ISSUE 2
I would like to resume the resolution of this issue by addressing the contention of the Appellant?s counsel that the trial Court was robbed of its jurisdiction when it adopted the procedure which allowed for the counsel to the parties to make oral addresses at the close of evidence as against written addresses as required in superior Courts. There is no gainsaying that the procedure adopted by the trial Court was irregular but whether such irregularity robbed the trial Court of its jurisdiction is another issue. The state of the law is settled that addresses of counsel no matter how well written cannot take the place of evidence placed before the Court. This is to say that the Court cannot rely on a sound address of a counsel to determine a case before him in that the essence of final addresses of counsel at the close of evidence is to assist the Court by providing the Judge with a clear mental opinion to see through the veneer and discover the hard core of the parties case. That is not to say that without written addresses a Judge cannot deliver a sound judgment as there are instances where the addresses of counsel are mere

formalities in that they do not add value or strength to the parties? case. The irregularity herein does not touch on either the merit, justice or fair hearing of the case since counsel on both sides were given equal opportunity to make their final addresses orally. In the circumstance, the mere fact that a superior trial Court ordered oral final addresses as opposed to written addresses will not rob the said Court of its jurisdiction except it is shown that there was a miscarriage of justice. In the instant case, the Appellant did not in any way allude to the fact that there was injustice meted on him by reason of the oral final address which his counsel made. In the event that there was no miscarriage of justice as a result of the irregularity of the trial Court adopting the procedure of oral final addresses as against written addresses, I hold that the trial Court was not robbed of its jurisdiction.

Relevant to the determination of the next dispute of this issue is principally the provisions of Section 294 (1) and (5) of the Constitution of the Federal Republic of Nigeria which provides:
Section 294 (1)
“Every Court established under

this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of delivery thereof”
Section 294 (5)
“The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of Subsection (1) of this section unless the Court exercising jurisdiction by way of appeal or review of the decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.”
The general interpretation given to the combined reading of Section 294 (1) and (5) of the Constitution of the Federal Republic of Nigeria is that, a Court?s decision cannot simply be nullified for the fact that the decision was delivered outside the ninety day period allowed by the Constitution. The party seeking such nullification must forge ahead to state facts that will satisfy the appellate Court that he has suffered a miscarriage of justice by reason of the failure of the lower Court to deliver its

decision within the time frame as provided by the Constitution. Where he so fails to establish a miscarriage of justice in the decision delivered, the appellate Court will not declare the judgment a nullity. The Courts have therefore placed more emphasis on the effect the failure to deliver judgment within the constitutional time frame has on the decision than the length of time it took the Court to deliver its decision outside the constitutional stipulated time. See: SAVANNAH BANK OF NIGERIA LTD V. STARITE INDUSTRIES OVERSEAS CORPORATION (2009) 8 NWLR (PT. 1144) 491, INTERNATIONAL BEER AND BEVERAGES INDUSTRIES LTD V. MUTUNCI COMPANY (NIG.) LTD. (2012) 6 NWLR (PT. 1297) 487, KOLAWOLE INDUSTRIAL COMPANY LTD. V. ATTORNEY GENERAL, FEDERATION (2012) 14 NWLR (PT. 1320) 221; PEOPLES DEMOCRATIC PARTY V. OKOROCHA (2012) 15 NWLR (PT. 1323) 205; NNPC V. ZARIA & ANOR. (2014) LPELR ? 22362 (CA).
Notably, the insertion of a provision in the Constitution stipulating a time frame for delivery of judgment in a case after final addresses is in recognition of the fact that human memory is circumscribed by time and space. It loses its impressions or knowledge of

persons, things, with the stretch of time and such loss increases with length of time and pre-occupations. See: IFEZUE V. MBADUGHA (1984) 5 SC. 79. Therefore, where the delay in the delivery of judgment is unconscionable, undue, immoderate in that it exceeds reasonable time limit, then, it will be beyond peradventure that it will, without more, affect the memory of the trial Judge and his impressions of the facts and evidence led in the matter such that whichever way the decision goes, it cannot be, and would not be seen to be justice according to law.
In a more recent decision of the Supreme Court, the apex Court emphasized Section 294 (5), stating that notwithstanding its decision in IFEZUE V. MBADUGHA (supra); delay alone will not lead to setting aside a judgment unless there is evidence of miscarriage of justice. See: AKOMA & ANOR V. OSENWOKWU & ORS (2014) LPELR ? 22885 (SC); DALYOP V. MADALLA (2017) LPELR – 43349 (CA). In legion of authorities, the decisions have echoed that in deciding whether a party has suffered a miscarriage of justice as a result of inordinate delay between the conclusion of evidence and written addresses; and the

delivery of judgment, the emphasis is not simply on the length of time but on the effect it produced in the mind of the Court. Still in the said circumstance it remains the duty of the Appellant to show how the delay has affected the perception, appreciation and evaluation of the evidence by the judge or justices as the case may be or how the delay eroded the confidence in the entire judicial process which produced the judgment. In AKOMA & ANOR V. OSENWOKWU & ORS. (supra); the apex Court sounded that:
?In cases where the delay involves the judgment of a trial Court which is to hear and see witnesses, I will readily agree that a delay of about 17 months after final addresses was so inordinate to affect the outcome of the proceedings. However, when it concerns an Appellate Court as in this case, I will be very slow to so declare because Appellate Courts’ functions are based on printed records only which involved the reading and appreciation of written briefs of argument and oral amplifications of such Briefs which are recorded by the justices. They cannot be said to have lost touch with the contents of the printed reviews placed before them

such that it would affect their perception and evaluation of the Appeal which is based on printed records only. I think that this section applies more to trial Courts than Appellate Courts.?
The contention of the Appellant herein is duo in nature, which are, the prolonged trial and the untimely delivery of the judgment of the Court. From the records, the hearing of the case commenced on 3rd June, 2008 and evidence was concluded on 23rd June, 2014 that is about 6 years. Thereafter, the record of the trial Court went blank from 23rd June, 2014 till 7th March, 2016 when the trial Court adjourned for oral addresses of counsel. That is to say the oral addresses were made about 21 months after the close of evidence. Oral addresses were made on 20th March, 2016 and judgment eventually delivered on 14th February, 2017 which is precisely eight months and fourteen days from the date of the oral addresses. The learned counsel for the Appellant submitted that: the two prolonged adjournments that is from 23rd June, 2014 till 7th March, 2016 when the trial Court adjourned for addresses of counsel; and from 20th April, 2016 to 14th February, 2017 when judgment

was delivered coupled with the prolonged trial from 3rd June, 2008 to 23rd June, 2014; had diminishing effect on the Judge?s perception and impressions of the witnesses who testified before him.
Emphasis must be placed here that Section 294(1)and (5) of the Constitution concerns itself with failure to deliver judgment within 90 days after conclusion of evidence and written addresses of counsel and the miscarriage of justice it occasions on the judgment delivered by the Court. Clear from Section 294 (1) of the Constitution is that the 90 days within which judgment must be delivered counts from the conclusion of evidence and addresses. Emphasis has always been wrongly placed on the fact that the 90 days counts solely from the date of written addresses of counsel.
Also, I want to remark that delay between the commencement of evidence and conclusion of evidence though not reckoned with by Section 294 (1) of the Constitution, has great effect on the distinct clear impressions and perceptions of the trial Court of the witnesses who testified, at the point of judgment delivery. It is no longer novel that the primary role of the trial Court is the

evaluation of evidence based on the credibility and demeanour of the witnesses he had observed and watched as they gave evidence. For this reason and for the fact that the human brain and memory tend to lose facts observed and stored therein with loss of time, the trial Courts must of necessity manage the case flow in their Courts in such a way that once evidence is commenced on a matter, its conclusion should be within a reasonable time frame where the trial Judge would still have fresh recollections of the demeanour and credibility of the witnesses otherwise the inability of the human brain to retain facts for too long will sway the Judge to miscarry justice. This is greatly the reason why the constitution has placed the burden on the Courts to deliver their judgments 90 days after the conclusion of evidence and written addresses so that the Courts would still retain the clear picture of the credibility and demeanour of the witnesses who testified and who are referred to in the addresses.
There is no controversy that the learned trial Judge violated Section 294 (1) of the Constitution, what remains to be examined is whether in the instant case, the

Appellant proved any miscarriage of justice based on the said delay in accordance with the spirit of Section 294 (5) of the Constitution. To establish this, the learned counsel for the Appellant, Mr. Ndam contended that while PW1, PW3 and PW4 testified that it was one Alhaji Lawal Madugu’s household that was robbed by the Appellant and his co convicts; PW2 an IPO contradicted this by testifying that it was the household of one Alhaji Mohammed Nawaita in Damaturu that was robbed by unknown gun men. He highlighted the testimony of PW4 as another instance where the trial Court lost perception and impressions of the evidence led and therefore came to a wrong conclusion. The alleged victim of the crime categorically made it clear in her testimony on oath during cross-examination that the accused persons were sitting at the back of a vehicle when the robbers struck. See page 89 of the records. This suggests that the Appellant and the co convicts may not have been the armed robbers who robbed PW4.
Furthermore, from the records, the learned trial Judge in his judgment at pages 112 to 113 particularly his summary of the evidence of PW2 and PW4 from where he

drew his impressions, perceptions and made his evaluations, missed material evidence of the witnesses which led to his wrongly arriving at the conclusion to convict the Appellant. At page 91 of the records, the PW2 one of the Investigating Police Officers under cross examination gave evidence that the complainant of the case was Alhaji Mohammed Nawaita in Damaturu whose house the Appellant and 2 others allegedly robbed as opposed to the evidence of the other Prosecution witnesses. The learned trial Judge did not evaluate such vital evidence nor address the issue of whose house if any there was robbery because he had lost touch of the evidence that was placed before him owing to the undue delay in delivering his judgment after conclusion of evidence and addresses. PW4 in her evidence, particularly Exhibit D at page 20 and evidence on oath at pages 88 to 89 of the records respectively, stated that at about 20:15hours and or between 7pm to 8pm respectively; unknown gunmen attacked them in the house and robbed them. In Exhibit D, she said they robbed her of her gold ear rings valued N14,000.00 and assaulted her and that she did not have money to give them. She

further testified that she could recognize the person that collected her ear rings because ?he was giant among them all?. In her statement in Court she said it was her husband that made a report to the police as opposed to the evidence of PW2. She maintained that she had never seen the Appellant before the robbery. She added ?The robbers collected money from me. The accused (sic) were sitting at the back of the vehicle when the robbers struck I hold that the testimony of the PW4 (the alleged victim of the armed robbery) is contradictory in material particulars. Her testimony that the Accused persons were sitting at the back of the vehicle when the robbers struck implies that the Accused persons were different from the armed robbers who robbed the victim.
The learned trial judge completely lost recollection of these important testimonies and contradictions thereby losing the advantage of having heard the witnesses as a result of poor memory and loss of impressions of the trial and testimonies of the witnesses due to failure to deliver judgment within 90 days after conclusion of evidence and addresses which delay occasioned

a miscarriage of justice to the Appellants. See: AKPAN V. UMOH (1999) 7 SC (PT. II) 13; ATUNGWU & ANOR. V. OCHEKWU (2013) LPELR 20935 (SC).
I must note that even when they are good reasons for failure to abide by Section 294 (1) of the Constitution, once it can be shown that the delay occasioned a miscarriage of justice, the decision would be declared a nullity. The delay of about 28 months from conclusion of evidence and addresses before judgment delivery is definitely an inordinate delay which obviously from the analysis made above affected the trial Judges perception, appreciation and evaluation of the evidence leading to loss of impressions of the witnesses particularly PW2 and PW4 which occasioned a miscarriage of justice for which this Court must of necessity interfere to nullify the judgment. See: DIBIAMAKA V. OSAKWE (1989) 3 WLR (PT. 107) 101.
For all I have said above, I hold that the judgment of the trial Court delivered more than 90 days after conclusion of evidence and addresses which occasioned a miscarriage of justice is a nullity.
I therefore resolve issue 2 in favour of the Appellant.

Having come to this conclusion, I would have gone ahead to order a retrial but, this Court being an intermediary Court is enjoined to consider and resolve all issues distilled in an appeal. The apex Court has now affirmed the position of the law that even where the law fundamental to criminal proceedings and capable in appropriate cases of rendering a trial a nullity has not been complied with, the Court of Appeal will not jump at the exercise of its discretion to order a retrial. Although it is its discretionary power, that power must be exercised judicially and judiciously, and not whimsically or capriciously. See: ONWE V. STATE (2017) LPELR ? 42589 (SC). In ONWE V. STATE (supra); the Court of Appeal only, in effect, considered whether the trial Court complied with Section 215 of the Criminal Procedure Law. Upon finding that Section 215 CPL was not complied with the Court of Appeal quashed the trial, conviction and sentence, and ordered fresh trial. The Court did not consider or resolve the first issue in the appeal suggesting that the evidence on which the Appellant was tried was full of material contradictions. The apex Court held that the order for retrial or fresh

hearing made by the Court of Appeal was wrongly made as the Court of Appeal ought to have determined the appeal on its merit even after finding that the arraignment did not comply with Section 215 CPL. The position of the law therefore is that before the Court of Appeal can order fresh trial, it ought to consider whether the evidence at the trial High Court justify the order for fresh trial. In other words, the order for fresh trial is not automatic once the Court of Appeal holds that the trial Court did not comply with the law fundamental to criminal proceedings. The Court of Appeal therefore can only make an order for a retrial where after it has arrived at a conclusion that the trial Court did not comply with the law fundamental to criminal proceedings and upon considering the record of proceedings as a whole satisfies itself that the evidence disclosed a substantial case for proper trial of the accused person. The rationale behind this position of the Supreme Court is that, the order for fresh trial in the face of evidence which prima facie cannot sustain conviction, is oppressive, preposterous and a travesty of Justice. See: GANIYU V. THE STATE (2013)

LPELR-20334 (SC); EDACHE V. QUEEN (1962) 1 SCNLR 22; ADISA V. A.G. WESTERN NIGERIA (1965) 1 ALL NLR, 412; AND EWE V. THE STATE (1992) 6 NWLR (PT. 264) 147 AT 157.
In the instant appeal, issue 3 is not trivial. I have gone through the records and I view that it will better serve the interest of justice to determine the appeal on its merit than order a retrial at this point which I hold will occasion a greater miscarriage of justice. See: STATE V. MATHEW (2018) LPELR ? 43712 (SC). I shall therefore proceed to consider Issue No. 3.

SUBMISSIONS ON ISSUE 3
Whether the Prosecution proved the offence of armed robbery against the Appellant beyond reasonable doubt to warrant his conviction and sentence to death by hanging
Mr. Ndam learned counsel for the Appellant submitted that the trial Court was wrong in its judgment delivered on 14th February, 2017 when it convicted the Appellant and sentenced him to death by hanging. He contended that the Prosecution did not prove the ingredients of the offence of armed robbery. He cited: ANI V. STATE [2001] 5 SC (PT. 1) 33; [2003] 11 NWLR (PT 830) 142 AT 161 PARAGRAPHS C-E. The learned

counsel noted that the offence was committed in Yobe State but the Appellants were arrested in Gombe State forty one clear days after the robbery. The learned counsel faulted the mode of identification of the Appellant by the victim and argued that the flaw made it impossible for the Respondent to link the Appellant with the crime. He relied on: ARCHIBONG V. THE STATE (2006) 14 NWLR (PT. 1000) 349 AT 371. The learned counsel noted that the Appellant was never at any point identified as the one who committed the robbery. He referred to the evidence of the victim at page 87 of the records where she said she had never seen the Appellant before to contend that identification parade was necessary and that failure of the Prosecution to have an identification parade to identify the Appellant was fatal to their case. He leaned on: IKEMSON V. STATE (1989) 3 NWLR (PT. 110) 455.

The learned counsel further submitted that the testimony of the PW4 the victim of the armed robbery is contradictory in material particular, he referred to page 89 of the records where she testified during cross-examination that the Accused persons were sitting at the back of the vehicle

when the robbers struck and argued that by implication the Accused persons were different from the armed robbers who robbed the victim.
He urged the Court to resolve issue 3 in favour of the Appellant and to accordingly discharge and acquit the Appellant.

In opposition reaction, Mr. Gadaka of counsel to the Respondent submitted that the learned trial Judge was right to have held that the Respondent proved the offence as charged against the Appellant. He noted the ingredients of the offence and cited: AFOLALU V. THE STATE (2010) 16 NWLR (PT. 1220) 584. He rehashed the evidence of the Prosecution to submit that there was robbery which took place on 20th August, 2008 in the house of Alhaji Lawan Madugu at Damaturu, Yobe State. He referred to: page 101 lines 11-15; page 63 lines 14-25; page 84 at lines 5-20 of the records and Exhibit A the confessional statement of the Appellant.

The Respondent in his contention that the Appellant and others took part in the commission of the said robbery referred to the evidence of PW4 Adama Ma’azu a victim of the said robbery. PW1 Insp. Garba Musa testified that the Appellant made a confessional statement which

he recorded. He also stated that identification parade was conducted and PW4 Adama Ma’azu identified the Appellant and his co convicts. The learned counsel submitted that where there is a proper identification as a result of the opportunity a witness had the Court can rely on that identification and convict the Appellant. He cited: OLALEKAN V. THE STATE (2001) 18 NWLR (PT. 746) 793.

He therefore urged the Court to resolve issue 3 in favour of the Respondent and to hold that the prosecution proved the offence of armed robbery against the Appellant beyond reasonable doubt which warranted his conviction and sentence by the trial Court.

RESOLUTION OF ISSUE 3
The question to be answered herein is whether the evidence adduced by the Prosecution at the trial Court can sustain the establishment of the ingredients of the offence of armed robbery which are: (a) That there was a robbery or series of robberies; (b) That the robbery or each robbery was an armed robbery; (c) That the accused took part in the armed robbery or robberies. See: STATE V. SANI (2018) LPELR – 43598 (SC); AYINDE V. THE STATE (2018) LPELR 44761 (SC); EBBA V. OGODO (1984) 1

SCNLR 372; SUBERU V. THE STATE (2010) 8 NWLR (PT. 1197) 586. It is important to note the prescription under Section 135 of the Evidence Act on the Standard of Proof in criminal proceedings and it is thus:
Section 135
1. If the commission of a crime by party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.
2. The burden of proving that any person has been guilty of a crime or wrongful act is, subject to Section 139 of this Act, on the person who asserts it whether the commission of such act is or is not directly in issue in the action.
3. If the prosecution proves the commission of the crime beyond reasonable doubt the burden of proving reasonable doubt is shifted to the defendant.
Expounding the above referred section, the apex Court in CHUKWUMA V. FRN (2011) 13 NWLR (PT. 1264) 391 AT PAGE 408; per Muhammad JSC (as he then was) at page 408, paras D – H held thus:
“The burden of proof in our adversarial system of criminal justice is for the prosecution to prove its case beyond reasonable doubt. In the process the requirement of the Law is that the prosecution

has the duty to prove all the essential elements of an offence as contained in the charge. The law places the burden on the prosecution to produce vital material evidence and witnesses to testify during the proceedings before a trial Court comes to the conclusion that an offence had been committed by an accused person. The prosecution does not require a magic wand in order to attain to its proof to be beyond reasonable doubt”. All the prosecution is required to do simply is to put forward to the Court evidence which is so strong, compelling and convincing against the accused such that it leaves no reasonable man in doubt as to the probability of the accused person committing the alleged offence.” (Underlining mine).
Emphasizing the yardstick on the standard of proof well set out in the Law and as expatiated in the case of CHUKWUMA V. FRN (Supra); His Lordship Peter-Odili in STATE V. SANI (supra) stated that, where the victims of the crime by their evidence has difficulty with identifying the Appellant as one of the assailants on the night of robbery, that linkage between the Appellant and the offence being absent it can be said that an essential element of

the offence of armed robbery is missing which is fatal to the case of the prosecution. See: SUBERU V. THE STATE (2010) 8 NWLR (PT. 1197) 586 AT 614 – 615: ABOKOKUYANRO V. THE STATE (2016) LPELR – 40107 (SC); OSUAGWU V. THE STATE (2016) LPELR- 40836 (SC); STATE V. DANJUMA (1997) 5 NWLR (PT. 506) 512: FATOYIBO V. A.G. WESTERN NIGERIA (1966) WNLR 4; PEOPLE OF LAGOS STATE V. UMARU (2014) LPELR – 22466 (SC).
In contesting that the Prosecution failed to prove its case against the Appellant, the learned counsel for the Appellant stemmed firmly on the fact that the PW4 the victim did not properly identify the Appellant to link him up with the robbery. The Prosecution counsel made reference to the evidence of the PW4 on record and the fact that the PW4 in identification parade identified the Appellant as one of the robbers to urge the Court to uphold the conviction and sentence of the Appellant.
Identification evidence relates to the evidence which tends to show that the person charged for an offence is the same as the person who was seen committing the said offence. To guard against cases of mistaken identity, before a Court can ascribe any value to the

evidence of an eye-witness in identification of a criminal, the Court must carefully consider the following issues: –
(1) circumstances in which the eye-witness saw the suspect or defendant.
(2) the length of time the witness saw the subject or defendant
(3) The lighting conditions
(4) The opportunity of close observation.
(5) The previous contacts between the two parties.
See: NDIDI V. STATE (2007) LPELR ? 1970 (SC). The PW4 herein in her extra judicial statement at page 20 of the record said, ?I can identify the one that collected the set of gold Earings (sic) ? because he was giant among them all?. In her evidence under cross examination she said, ?I have never seen the accused person in my life. The robbers collected money from me. The accused (sic) were sitting at the back of the vehicle when the robbers struck.? The evidence of PW4 on the identity of the Appellant does not without reasonable doubt link the Appellant to the robbery. From her statement to the police the only person among the robbers she could identify was the one who collected her gold ear rings because he was bigger than

the others yet she did not at any point give evidence that it was the Appellant that ?was the giant among them all? who collected her ear rings. She did not link the Appellant as either the ?giant among them all? or the robber that collected her ear rings. Again she said she had never seen the Appellant, and the accused persons the Appellant inclusive were sitting at the back of the vehicle when the robbers struck. The doubt raised by the evidence of PW4 is that the Appellant and his co convicts would have been different from the robbers that struck especially since through the traverse of the Respondent?s evidence, it was not stated that the robbers who attacked the PW4 in her home came in a vehicle. The question is, how did the PW4 identify the Appellant after about 41 days, since the only time she saw him was when he was sitting in the vehicle while she was in the house frightened at gun point? The Prosecution did not give evidence as to the light condition in the house where the victim was and in the vehicle where the Appellant and the other convicts were sitting. The PW4 and the entire Prosecution witnesses left the Court to

grope as to how the PW4 was in a position to identify the Appellant given the circumstances of the case. I am in tune that PW1 said there was identification parade and the PW4 identified the Appellant and his co convicts as the robbers, but, the PW4 in her statement said the only person she could identify was the person that took her gold ear rings and did not at any time link the Appellant as the one she identified. It is contradictory therefore, for PW1 to say the PW4 identified the Appellant and the other 2 convicts as the robbers contrary to her statement made after the arrest of the alleged robbers. Again there was no clue given as to the procedure of the identification parade. Accordingly, considering the circumstances PW 4 saw the Appellant if at all, lack of opportunity of close contact or observation of the Appellant, absence of previous contact with the Appellant; I find the weak evidence of PW4 (victim) poor in identifying the Appellant as one of the robbers, the same being capable of different meanings, the Appellant must be given the benefit of the doubt. See: UKPABI V. THE STATE (2004) LPELR ? 3346 (SC); ATTAH V. STATE (2010) LPELR ? 597 (SC).

Where the case of an accused person depends wholly or substantially on the correctness of his identification, a trial Judge must weigh the victim?s evidence on the identity of the accused with other evidence adduced by the prosecution before convicting the accused in reliance on the correctness of the identification. See: R V. TURNBULL & ORS (1976) 3 A.E.R 549; IKEMSON V. THE STATE (1989) 3 NWLR (PT. 110) 455. From the records as I can gather, there is no other Prosecution evidence in support of the weak evidence of the victim on the identity of the Appellant. The Respondent tried to lean on Exhibit A in support of the poor evidence of PW4 but in view of my resolution of Issue 1, Exhibit A cannot support the poor evidence of PW4 on the identity of the Appellant. All I can conclude here is that there is serious doubt as to the identity of the Appellant as one of the armed robbers that robbed the PW4?s home.

?There is also reasonable doubt as to the truthfulness of the alleged robbery. The doubtful scenario records that the alleged offence was committed on 20th August, 2008; the only victim who testified (PW4) made a statement

to the police on 1st October, 2008 (Exhibit D) which is exactly 43 days after the alleged robbery incident and two days after the arrest of the Appellant. There is no record in the proof of evidence of the alleged complaint made to the police by Alhaji Lawan Madugu whose household was allegedly robbed and who the Prosecution witnesses said is the nominal complainant; he was not even called as a witness. The picture painted above also raises serious doubt as to whether there was robbery and which doubt must be resolved in favour of the Appellant.

Again from the Respondent?s evidence, there are contradictions on whose house the Appellant and the co convicts allegedly robbed. While the victim said the robbery took place on 20th August, 2008 in her house that is, Alhaji Lawan Madugu home at Damaturu, Yobe State; and that it was her husband Alhaji Lawan Madugu that was the complainant, the PW2 one of the Investigating Police Officers said the robbery took place in the house of Alhaji Mohammed Nawaita in Damaturu who was the complainant. When as in this case the Prosecution gives contradictory evidence as to the complainant and the house that was

allegedly robbed; then there is serious doubt as to whether there was any robbery at all. It was held in PAUL AMEH V. THE STATE (2018) LPELR ? 44463 (SC); that when the prosecution places two versions of one incident before the trial Court then they would have failed to prove the guilt of the accused person beyond reasonable doubt. The case of the prosecution is considered as a whole, therefore where pieces of prosecution’s evidence contradict another piece, the Court is not permitted to pick and choose which piece to believe or disbelieve. See also:BOY MUKA V. THE STATE (1976) 10-11 SC 305.
In the circumstance therefore I hold that the Respondent did not prove beyond reasonable doubt that there was robbery and that the accused took part in the robbery. I accordingly, resolve issue 3 in favour of the Appellant.
The failure of the prosecution to prove the guilt of the accused person beyond reasonable doubt earns the accused an order of discharge and acquittal. See: ONWE V. STATE (2017) LPELR 42589 (SC); JUA V. THE STATE (2010) 4 NWLR (PT. 1184) 217 SC.
The appeal therefore succeeds and is hereby allowed. I quash the conviction and

sentence of the Appellant by the High Court of Yobe State delivered on 14th February, 2017, in Case No. YBS/DT/HC/28C/2008. In its place I enter the order of discharge and acquittal of the Appellant.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Uchechukwu Onyemenam, JCA. His Lordship has considered and resolved the issues in contention in the appeal. I agree with the reasoning and abide the conclusion reached therein, save on one issue.

?The records of the lower Court showed that when the Respondent sought to tender the confessional statement of the Appellant, the Appellant and his Counsel objected thereto on the ground of involuntariness and consequent on which the lower Court conducted a trial within trial. At the conclusion of the trial, the lower Court delivered a Ruling wherein it overruled the objection of the Appellant and it found that the confessional statement was made voluntarily and it admitted the confessional statement. The records of appeal show that on the date of the delivery of the Ruling of the lower Court on the trial

within trial, the Appellant was in Court but his Counsel was absent. The Registrar of Court made a statement to the effect that Counsel to the Appellant instructed one G. Onoja to hold his brief but that the said G. Onoja was sick. The lower Court delivered the Ruling and thereafter adjourned the matter for further trial.

Counsel to the Appellant submitted in his brief of arguments than an accused person must be represented at all times material to a trial and that the delivery of the Ruling in the trial within trial in the absence of the Counsel to the Appellant was in breach of the right of the Appellant to a fair hearing and that the entire trial within trial proceedings and Ruling be declared a nullity. Counsel to the Respondent countered that the absence of the Counsel to the Appellant at the delivery of Ruling did not occasion a miscarriage of justice and was not fatal to the merit of the case and did not amount a breach of the right of the Appellant to fair hearing.

The Appellant was charged with armed robbery and which, by our criminal statutes, is a capital offence. It is not in dispute that part of the facilities that an accused person

facing a capital offence is entitled to by the provisions of Section 36(6)(a) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) is the right to legal representation at every stage of his trial -Udo Vs The State (1988) 6 SCNJ 181, Udofia Vs State (1988) 7 SC J (Pt 1) 118. Indeed, it is the law that where such an accused person cannot afford the services of a Counsel, one must be assigned to him by the State – Nemi Vs State (1994) 10 SCNJ 1. This is one of the fundamental rights of such an accused person guaranteed under the provisions of the 1999 Constitution. These said, however, the concept of fundamental rights is not a technical or straight-jacketed doctrine that the question of its breach is determined by one single isolated incident. Rather it is one of substance and the question of its breach depends upon a careful consideration of the facts and circumstances of each case and the test to be applied in each case is an objective one based on the impression of a reasonable and fair minded observer at the trial – Action Congress of Nigeria Vs Lamido (2012) 8 NWLR (pt 1303) 560 and Eastern Breweries Plc, Awo Omamma Vs Nwokoro (2012) 14

NWLR (pt 1321) 488.
The records of appeal show that at every stage in the trial within trial, the Appellant was represented by Counsel and that his Counsel heard the evidence of the Respondent’s witness in the trial within trial and duly cross examined them without any hindrance. The records showed that in one instance, on the 1st of December, 2011 when the Counsel to the Appellant was absent from Court, the matter was adjourned and the lower Court directed that hearing notice of the next date be served on the Counsel. The records showed that Counsel to the Appellant duly led the Appellant in evidence in his defence in the trial within trial without any hindrance. The records show that on the date fixed for Ruling, the Appellant was in Court, but his Counsel was absent and the Registrar informed the lower Court that the Counsel designated to hold the brief of Counsel to the Appellant on the date was sick.
There was nothing on the records of the day showing that Counsel to the Appellant or the Counsel he designated to hold brief sought for an adjournment of the Ruling to another date and it will wrong to read the making of such a request into the

records. It is settled law that, until amended, this Court, the parties and their counsel are bound by the records of appeal duly compiled, authenticated and transmitted by the lower Court to the Registry of this Court, nothing can be read into or out of the records – Oseni Vs Bajulu (2009) 18 WLR (pt 1172) 164, Ojiogu Vs Ojiogu (2010) 9 WLR (pt 1198) 1 and Garuba Vs Omokhodion (2011) 15 WLR (pt 1269) 145. The records show that lower Court proceeded to deliver the Ruling on the trial within trial and thereafter adjourned the matter for continuation of the main trial and directed that the adjourned date be communicated to the Counsel to the Appellant. The records show that the Appellant understood the English language and that, apart from the lower Court delivering the Ruling, no other proceedings took place on the day of the Ruling.
Now, in the face of all these facts, can it be said that the delivery of the Ruling in the absence of the Counsel to the Appellant amounted to a breach of Appellant’s fundamental right as to render the entire the proceedings and the Ruling on the trial within trial a nullity? I do not think so. In the case of Olanrewaju Vs State

(2014) LPELR 23811 (CA) where, more fundamentally, it was the accused that was absent at the reading of the Ruling on a trial within trial, this Court opined thus:
” … no cross examination is expected before or after the ruling and no evidence is tendered. In fact, parties do not partake in ruling other than to listen and unlike in judgment, no allocutus is required.
The essence of the presence of an accused throughout his trial is to afford him an adequate opportunity to play his statutory role and liberty to respond of every stage of the proceedings personally or through a legal practitioner of his own choice for the purpose of ensuring fair hearing. In a situation, such as in the instant case, where the entire proceedings were conducted not only in the appellant’s presence but with his full and active participation, one hardly sees what aspect of his right to fair hearing could have been impaired. His only right against the ruling delivered being to appeal against it if he feel dissatisfied is not in any way whittled down by his absence in Court when it was delivered … The requirement for the accused person to be present throughout the

proceedings emanates from the need to allow him respond appropriately to all issues affecting his right during the trial proceedings inclusive of delivery of judgment where he may plead an allocutus. Where no injustice has occasioned from the procedure adopted by the trial Court, as in this case, the appellate Court has no business in interfering with the findings of the learned trial judge.”
Juxtaposing this statement of law with the position in the present case, it my view that it was necessary for the Appellant to show that he suffered a particular or peculiar miscarriage justice by reason of the reading by the lower Court of the Ruling in the absence of his Counsel, before this Court can come to a conclusion that a breach of Appellant’s fundamental right occurred which rendered the entire the proceedings and the Ruling on the trial within trial a nullity. To hold otherwise will be tantamount to turning the concept of fair hearing into an abstract term, a magic wand, that is available to a party to nullify proceedings of Court in all circumstances. This is not the aim of the doctrine of fair hearing – Okotcha Vs Herwa Ltd(2000) 15 NWLR (Pt 690) 249,

Newswatch Communication Ltd Vs Atta (2006) FWLR (Pt 318) 580. The Appellant did not show that he suffered any miscarriage of justice and as such the contention of his Counsel that the reading of the Ruling by the lower Court in the absence of his Counsel amounted to a breach of his fundamental right, in the circumstances, is totally misconceived.
Apart from this issue on which I differ in opinion, I agree with the lead judgment that the justice of this case, on its peculiar facts, is that the judgment of the lower Court be set aside and that an order of discharge and acquittal be made in favour of the Appellant who had been incarcerated since 2008, rather than making an order for the retrial matter.

BOLOUKUROMO MOSES UGO, J.C.A.: I had a preview of the lead judgment of my learned brother UCHECHUKWU ONYEMENAM, J.C.A., and I am in agreement with him that the inordinate lapse of time between taking of evidence in the charge, the adoption of addresses and the judgment of the trial Court in this case was such that it cannot be said with any degree of confidence that the trial judge did not lose his advantage of seeing witnesses testify

and that appellant had a fair trial/hearing. At any rate, my learned brother has in his very meticulous review of the evidence shown that that inordinate lapse of prosecution who had the burden to prove its case against the appellant time actually affected the trial judge’s appreciation of the evidence of the beyond reasonable doubt. That threshold of proof beyond reasonable doubt, I also agree with my learned brother, the prosecution did not meet and the trial judge is wrong in holding otherwise. In the event, I also allow the appeal, set aside the conviction of the appellant and in its place enter an order discharging and acquitting him of the offence of armed robbery for which the appellant was charged.

Appearances:

A. U. THEOPHILUSFor Appellant(s)

U. ISMAILA (CSC MOJ Yobe State)For Respondent(s)

Appearances

A. U. THEOPHILUSFor Appellant

AND

U. ISMAILA (CSC MOJ Yobe State)For Respondent