OBINNA IWUOHA v. THE STATE
(2019)LCN/13838(CA)
In The Court of Appeal of Nigeria
On Friday, the 1st day of November, 2019
CA/B/475CA/2014
RATIO
THE MANDATORY NATURE OF SECTION 164(1) OF THE CRIMINAL PROCEDURE LAW
This appeal among other things raises the issue of the mandatory nature of S. 164 (1) of the criminal procedure law which reads thus:-
“If a new charge is framed or alteration made to a charge under the provisions of Section 162 or Section 163 of this Act, the Court shall forthwith call upon the accused to plead thereto and to state whether he is ready to be tried on such charge or altered charge.”
This provision of the criminal procedure law has been interpreted to be mandatory. Strict compliance with its provision is required. This was the decision of the Apex Court in NOSIRU ATTAH v. THE STATE (1993) 1 NWLR (PT 305) 257. one of the cases relied on in ATTAR’s case is JONES V POLICE (1960) 5 FSC. 38. In JONES’s case, the Federal Supreme Court, even though agreed that the provision of S. 164(1) of the Criminal Procedure Ordinance was mandatory went ahead to invoke the provision of S.38 of the High Court of Lagos Ordinance to whittle down the effect of non- compliance with its provision Ademola C. J. F. (of Blessed memory) be opined thus.
“We do not doubt the decision in BISIRIYU SHOAGA: we agree with it but like the learned Chief Justice who heard the appeal in the High Court, we are of the view that it is not in every case that the irregularity in trial issued by not recalling witnesses results in adverse effect on the defendant’s case; the omission does not in every case occasion a miscarriage of justice. Where a judge on hearing an appeal is satisfied as in this case that the omission does not occasion a miscarriage of justice, we think under Section 38 of the High Court of Lagos Ordinance, it is competent for him to dismiss an appeal staked on that issue.” PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.
SECTION 19 OF THE COURT OF APPEAL ACT 2014
Now, in respect of the case on appeal, the provision of S. 19 of the Court of Appeal Act 2014 can be invoked as it is quite apparent from the proceedings at the lower Court that the omission to recall witnesses or inform the accused of his right did not occasion miscarriage of justice.
Section 19(1 ) of the Court of Appeal Act states thus;
1. The Court of Appeal on any appeal under this part of this Act against conviction or against an order of acquittal. Discharge or dismissal, shall allow the appeal if it thinks that the verdict should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the Court below should be set aside on the ground of a wrong decision on any question of Law or that on any ground there was a miscarriage of justice and in any other case, the Court of appeal shall, subject to the Provision of Subsection (3) of this Section and Section 20 of this Act, dismiss the appeal.;
?Provided that the Court of Appeal may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if is considers that no substantial miscarriage of justice has actually occurred.
2. Subject to the provisions of this Act. The Court of Appeal shall, if it allows an appeal against conviction, quash the conviction and direct a judgment and verdict of acquittal to be entered or order the appellant to be re-tried by a Court of competent jurisdiction.
3. On an appeal against sentence or, subject to the provisions of this Act, or on an appeal against conviction, the Court of Appeal shall, if it thinks that a different sentence should have been passed, quash the sentence passed at the trial and pass such other sentence warranted in law (whether more or less severe) in substitution as it thinks ought to have been passed, and if not of that opinion shall, in the case of an appeal against sentence, dismiss the appeal.
4. Subject to the provisions of this Act, the Court of Appeal shall, if it allows an appeal against acquittal, discharge or dismissal, direct a judgment and verdict of conviction to be entered and pass such sentences as the Court below could have passed, or order the Appellant to be re-tried by a Court of competent jurisdiction. PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.
JUSTICES
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
MOORE ASEIMO ABRAHAM ADUMEIN Justice of The Court of Appeal of Nigeria
Between
OBINNA IWUOHA Appellant(s)
AND
THE STATE Respondent(s)
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.: The appellant was the 3rd accused in Charge No. B/68C/2010 which was tried and determined by the High Court of Edo State, holden at Benin City. In its judgment, delivered on the 24th day of November, 2014 the appellant was convicted and sentenced to life imprisonment for the offence of kidnapping. This appeal is against the said decision. Learned counsel for the appellant formulated the following four issues for determination:-
?1. Whether the learned trial judge was right in law when he held that the prosecution has proved the case of kidnapping against the appellant beyond reasonable doubt. Arising from ground 2 of further amended notice of appeal.
2. Having regards to the constitutional right of fair hearing guaranteed by the Constitution of the Federal Republic of Nigeria whether the learned trial judge was constitutionally right when he refused to order trial- within-trial when the appellant raised the issue of how he was shot on the leg when the statement was about to be taken. Arising from ground 4 of the further amended notice of appeal.
3. Whether the learned
1
trial judge was right when he failed to take the plea of the appellant after the amendment of charge and call upon the appellant to state whether the appellant is ready to be trial on the amended charge after the amendment (sic).
4. Having regard to the importance of identification parade in any criminal trial and the principle laid down in IKEMSON V. STATE (1989) 3 NWLR (Pt. 110) 455 coupled with the facts that the PW2 has never known the appellant before, whether the appellant, was properly identified by the PW2 (the victim of the kidnap). Arising from ground two of the further amended brief of argument.?
Four issues were also distilled by the learned counsel for the respondent who couched them thus:-
?1. Whether the prosecution has proved the case of kidnapping against the accused person beyond reasonable doubt.
2. Whether the extra judicial statement of the appellant Exhibit ?P2? was duly admitted in evidence as a confessional statement.
3. Whether the learned trial judge sufficiently complied with the provisions of Section 164 of the Criminal Procedure Act after the charge was amended.
2
4. Whether identification parade is a sine qua non in all criminal cases.?
The issues identified by the parties are essentially the same. I shall take all the issues and treat them together.
Learned counsel for the appellant argued that the only evidence relied on by the prosecution in proving the case against the appellant was the testimony of PW3 and since the appellant was not arrested at the scene of crime and the fact that PW1 (the victim of the crime) ?never identified the appellant?, there ought to be an identification parade, in view of the Supreme Court decision in Ikemson v. State (1989) 3 NWLR (Pt. 110) 455.
Olayiwola Afolabi, Esq., learned counsel who settled the appellant?s brief, contended that the trial Court was wrong to have ?refused to order trial-within-trial when the appellant raised the issue of how he was shot on the leg when the statement was about to be taken.” In support of this contention, learned counsel relied on the cases of Kabiru v. A.G., Ogun State (2009) 5 NWLR (Pt. 1134) 209; Emeka v. State (2001) 4 NWLR (Pt. 737) 666; Bello v. State (2012) 8 NWLR (Pt. 1302)
3
207 and Alozie v. Commissioner of Police (2013) 13 NWLR (Pt. 1372) 601.
Relying on several cases, including Joves v. Inspector General of Police (1960) 5 FSC 38; Ogudo v. The State (2012) All FWLR (Pt. 629) 1111 and Attah v. The State (1993) NWLR (Pt. 305) 257, learned counsel for the appellant submitted as follows:-
“From the foregoing therefore, though the trial Court asked the appellant to plead to the three counts charge read to him, the Court failed in not inviting the appellant to state whether he was ready to be tried on the amended charge and to ask, whether the appellant intends to recall any of the witnesses that testified and to ask both the prosecution and the appellant if they wish to examine or cross-examine any of the witnesses that gave evidence.?
According to the learned counsel, the failure to strictly comply with the provisions of Section 164 (1) of the Criminal Procedure Law rendered the proceedings liable to be set aside.
In response, O. Otokunrin, Esq., learned counsel who settled the respondent?s brief referred to the case of Ogoala v. The State (1991) 2 NWLR (Pt. 175) 509 and argued that
4
?the law is clear that to require an identification parade, there must be real doubt as to who was seen at the locus-criminis or in connection with the offence.? Counsel argued that the appellant?s identity was established by the appellant?s confession and cogent circumstantial evidence.
The respondent?s counsel argued that since the appellant did first ?own up to making? the confession under duress, the question of trial-within-trial did not arise.
It was submitted that the trial Court complied with the provisions of the Civil Procedure Law, after the charge was amended. In support of this submission, learned counsel referred to the proceedings of the trial Court on the 31st day of July, 2012 as contained in the supplementary record of appeal.
On the proof of the offence with which the appellant was charged, the learned counsel for the respondent argued that the crime was proved beyond reasonable doubt by the appellant?s confession and circumstantial evidence.
?I agree with the view of the learned counsel for the respondent that the appellant?s statement was properly admitted
5
in evidence by the trial. When the appellant?s statement was sought to be tendered, he merely denied signing the statement. The statement of the appellant?s counsel that: ?Accused person also says that he was shot on the leg? was not tied to any specific thing, thereby leaving many unanswered questions, for example: When was the appellant shot on the leg? Who shot the appellant and under what circumstances was the appellant shot?
A trial Court does not order a trial-within-trial for the fun of it. If a confessional statement is retracted, as in this case where the appellant denied signing the statement, the retraction or purported retraction does not ipso facto render the statement inadmissible. SeeR. V. Itule (1961) All NLR 462; Akpan Ben Akpan v. The State (2001) 15 NWLR (Pt.737) 745; Golden Dibie v. The State (2007) 9 NWLR (Pt. 1038) 30 and Wole Akindipe v. The State (2016) 15 NWLR (Pt. 1536) 470.
Since the appellant did not say that he made the statement in issue involuntarily or under duress, there was no need for a trial-within-trial to have been conducted before the statement could be admitted. See
6
Chibuike Ofordike v. The State (2019) 5 NWLR (Pt. 1666) 395.
The appellant?s extra-judicial statement to the police ? Exhibit P2 is a confessional statement, which is direct and positive. The confession was also corroborated by the evidence of Iriagbonse Osunde, who was the 1st accused person in the trial Court. The trial Court was amply justified and right by holding, inter alia, as follows:-
?In Exhibit P2 he state how he was invited by the 2nd accused to help to tie the PW2. He state how they tied and blind folded the PW2 placed her in the 2nd accused person?s car, sat with her at the back seat of the car and took her to the 1st accused person?s house. He admitted that he had carnal knowledge of the PW2 twice without her consent while in the first house of the 2nd accused who later took the PW2 along with him to his new apartment.?
The appellants confession and the circumstances of his arrest by PW3 ? Inspector Sunday Okunrobo, then attached to the Police Anti-Kidnapping Team ?C?, Benin City, rendered identification of the appellant immaterial and unnecessary.
The law is now settled that a criminal accusation can be proved in any of the following three ways:-
1. Circumstantial evidence;
2. Confession of the accused person; and
3. Direct evidence.
See Michael Adeyemo v. The State (2015) 16 NWLR (Pt. 485) 311; Joseph Bille v. The State (2016) 15 NWLR (Pt. 1536) 363 and Ifeanyichukwu Akwuobi v. The State (2017) 2 NWLR (Pt. 1550) 421.
The prosecution proved, by the appellant?s confession and circumstantial, that beyond any reasonable doubt the appellant committed the offence he was accused of. Learned counsel for the respondent referred to the proceedings of the trial Court, especially those of the 17th day of April, 2012 on pages 1 and 2 of the additional record of appeal, compiled and transmitted on 28/06/2017 but which was deemed as properly compiled and transmitted on 16/11/2017, and submitted, inter alia, that the trial Court complied with the provisions of Section 215 of the Criminal Procedure Act.
The substance of the appellant?s arguments in this appeal is that the trial Court failed to take his plea before the commencement of his trial and that it also failed to strictly comply with
8
the provisions of Section 164 (1) of the Criminal Procedure Law, after the charge was amended.
A perusal of the complimentary record of appeal, compiled and transmitted to this Court on 28/06/2017 but which was deemed as properly compiled and transmitted on 16/11/2017, shows clearly that the respective plea of the appellant and each of his co-accused persons was duly taken by the trial Court on the 17th day of April, 2012, before the case was adjourned to 03/05/2012 for hearing or trial ?on the agreement of all counsel?. See pages 1 and 2 of the complimentary record of appeal.
In respect of the second leg of the appellant?s complaint, the record of the proceedings on the 31st day of July, 2012 shows clearly that after the charge was amended, the trial Court called upon each of the accused persons, including the appellant herein, to plead to the amended charge. For the avoidance of doubt, the relevant record on pages 7-8 of the complimentary record of appeal is hereunder reproduced:
?Mrs. Adekanmbi: I apply to amend the charge substituting the two count charge filed this morning for the three count charge before
9
the Court.
Erhabor Esq: No objection.
Miss Owie: No objection.
Omatseye Esq: No objection.
Court: Following the oral application to amend the charge by substituting the two count charge filed this morning for the three count charge on which the accused persons have been standing trial, which is not opposed, leave is accordingly granted as prayed to amend the charge by replacing the existing charge with the two count charge filed on 31/7/2012. The accused persons are called upon to take plea to the two count charge.
P L E A: of the accused persons:
Court: Count one of the charge is read and explained to each of the 1st, 2nd and 3rd accused persons in English language by the Registrar of the Court and they each appear perfectly to understand and plead as follows:-
1st accused: ?I am not guilty.”
2nd accused: ?I am not guilty.”
3rd accused: ?I am not guilty.”
Court: Count 2 of the charge is read and explained to the 4th accused person in English language by the Registrar of Court in English language and he appears perfectly to understand and pleads
10
as follows:-
4th accused: ?I am not guilty?.”
In its judgment, the trial Court, on page 129 of the record of appeal also stated as follows:-
?The 1st, 2nd and 3rd accused persons in this case were initially charged in counts 1 and 2 of the charge with conspiracy and kidnapping contrary to the provisions of the kidnapping (Prohibition) Law 2009, while the 4th accused person was charged with being an accessory after the fact under Section 519 of the Criminal code. The charge was subsequently amended. Each of the 1st, 2nd and 3rd accused persons pleaded not guilty to count one of amended charge on 31/7/12, while the 4th accused pleaded not guilty to count two thereof.?
The appellant?s argument is that there is nothing on record to show that he was asked ?to state whether he is ready to be tried on such charge or altered charge? as stipulated by Section 164 (1) of the Criminal Procedure Law. For this sole reason, the appellant is asking the Court to declare his trial as ?null and void.”
?I am of the opinion that the cases heavily relied upon by the appellant are not
11
applicable to the facts and circumstances of this case. The cases relied upon by the appellant essentially flow from and/or re-echo the decision of the Supreme Court in the case of Nosiru Attah v. The State (1993) 7 NWLR (Pt. 305) 257, especially the dissenting opinion of Karibi-Whyte, JSC.
It should be noted that in the case of Nosiru Attah v. The State (supra), there was in fact no record of the appellant?s plea in respect of the amended counts. See page 259 of the Law Report. Secondly, the amendment to the charge in this case was essentially to remove the initial first count of conspiracy to commit the offence of kidnapping and leave the initial second and third counts, respectively, of the offence of kidnapping and which offence the appellant and his co-accused had even earlier pleaded to on the 17th day of April, 2012 before the amendment made on the 31st day of July, 2012.
By way of a little digression, the Supreme Court stated in the case of Nosiru Attah v. The State (supra) at 275, per Uthman Mohammed, JSC as follows:-
It is settled that failure to comply strictly with the
12
provisions of Section 164 (1) of the Criminal Procedure Law is fatal, and renders any conviction in the proceedings invalid as regards the counts, the amendment of which is the occasion of the non-compliance. In other words, if a charge contains several counts and, after an amendment, the trial Court fails to permit the accused to enter a fresh plea to the counts which have been altered or to new counts which have been added to the charge, the conviction against the unamended counts may not necessarily be quashed. In such a situation the nullity decision will affect only the new and altered counts. The earlier plea entered to the counts which were not amended is still valid.”
Assuming that there were slight adjustments in the counts of kidnapping, to which the appellant had pleaded to prior to the amendment and even after the amendment in issue, since the record of the trial court shows clearly that a fresh plea was taken by the appellant, there is a presumption that the trial Court complied with the formal requisites for a valid plea after the alteration or amendment of the charge. See Section 168 (1) of the Evidence Act, 2011 and the case of Federal Republic of Nigeria v. Mohammed Abubakar
13
(2019) 7 NWLR (Pt. 1670) 113.
In any case, the appellant?s objection in this Court borders on an invitation to the Court to uphold technical justice instead of substantial justice. The record of the trial Court, as can be gleaned from the complimentary record of appeal, shows that the amendment was made after the prosecution had fielded its last witness ? PW4, who was duly cross-examined. After the fresh plea was taken subsequent to the amendment, the prosecution closed its case and, thereafter, the learned counsel for the appellant opted to make a no case submission. The case was then adjourned to 04/10/2012 for the appellant?s no case submission. See page 8 of the complimentary record of appeal. The appellant, technically speaking, had already been tried on the charge as amended and to ask him whether or not he was ready to be tried on the charge as altered would be a mere exercise of surplussage by the trial Court. The omission, if any, did not occasion a miscarriage of justice against the appellant.
All that I am saying is that, even in criminal cases, our Courts have departed and moved away from the era of
14
technical justice to that of doing substantial justice. See Obinna John v. The State (2019) 9 NWLR (Pt.1676) 160 at 174, per Okoro, JSC.
In the case of Obinna john v. The State (supra), the appellant’s main complaint was that the charge was not signed by any known legal practitioner, but the Supreme Court held that:
?It has become trite that our Courts have long departed from the era of technicalities to doing substantial justice?.?
It is for all the reasons I have given in this judgment that I resolve the issues in this appeal against the appellant.
The appeal is hereby dismissed. The judgment of the trial Court, per Hon. Justice P.I. Imoedemhe, delivered on the 24th day of November, 2013 is hereby affirmed.
CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I had the advantage of reading before now the judgment of my learned brother, M. A. A. ADUMEIN, JCA in this Criminal appeal.
I am in agreement with the reasoning and the conclusion arrived at in the lead judgment that there is no merit in this appeal.
?As a corollary, I also dismiss this appeal and uphold the judgment of the trial
15
Court. I also affirm the sentence and conviction of the Appellant i.e. Life Imprisonment in Charge No. B/68C/2010 in the Judgment delivered on the 24th day of November, 2013 by P. I. Imoedemhe, J.
TUNDE OYEBANJI AWOTOYE, J.C.A.: I had the privilege of reading the draft of the judgment just delivered by my learned brother, MOORE ASEIMO ABRAHAM ADUMEIN, JCA.
I am in full agreement with the reasoning and conclusion herein.
This appeal among other things raises the issue of the mandatory nature of S. 164 (1) of the criminal procedure law which reads thus:-
“If a new charge is framed or alteration made to a charge under the provisions of Section 162 or Section 163 of this Act, the Court shall forthwith call upon the accused to plead thereto and to state whether he is ready to be tried on such charge or altered charge.”
This provision of the criminal procedure law has been interpreted to be mandatory. Strict compliance with its provision is required. This was the decision of the Apex Court in NOSIRU ATTAH v. THE STATE (1993) 1 NWLR (PT 305) 257. one of the cases relied on in ATTAR’s case is JONES V POLICE (1960)
16
5 FSC. 38. In JONES’s case, the Federal Supreme Court, even though agreed that the provision of S. 164(1) of the Criminal Procedure Ordinance was mandatory went ahead to invoke the provision of S.38 of the High Court of Lagos Ordinance to whittle down the effect of non- compliance with its provision Ademola C. J. F. (of Blessed memory) be opined thus.
“We do not doubt the decision in BISIRIYU SHOAGA: we agree with it but like the learned Chief Justice who heard the appeal in the High Court, we are of the view that it is not in every case that the irregularity in trial issued by not recalling witnesses results in adverse effect on the defendant’s case; the omission does not in every case occasion a miscarriage of justice. Where a judge on hearing an appeal is satisfied as in this case that the omission does not occasion a miscarriage of justice, we think under Section 38 of the High Court of Lagos Ordinance, it is competent for him to dismiss an appeal staked on that issue.”
The attention of His Lordships in ATTAH’s case was not drawn to this part of JONE’s case (Supra).
Now, in respect of the case on appeal, the provision of S. 19 of the Court of Appeal Act 2014 ?
17
can be invoked as it is quite apparent from the proceedings at the lower Court that the omission to recall witnesses or inform the accused of his right did not occasion miscarriage of justice.
Section 19(1 ) of the Court of Appeal Act states thus;
1. The Court of Appeal on any appeal under this part of this Act against conviction or against an order of acquittal. Discharge or dismissal, shall allow the appeal if it thinks that the verdict should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the Court below should be set aside on the ground of a wrong decision on any question of Law or that on any ground there was a miscarriage of justice and in any other case, the Court of appeal shall, subject to the Provision of Subsection (3) of this Section and Section 20 of this Act, dismiss the appeal.;
?Provided that the Court of Appeal may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if is considers that no substantial miscarriage of justice has
18
actually occurred.
2. Subject to the provisions of this Act. The Court of Appeal shall, if it allows an appeal against conviction, quash the conviction and direct a judgment and verdict of acquittal to be entered or order the appellant to be re-tried by a Court of competent jurisdiction.
3. On an appeal against sentence or, subject to the provisions of this Act, or on an appeal against conviction, the Court of Appeal shall, if it thinks that a different sentence should have been passed, quash the sentence passed at the trial and pass such other sentence warranted in law (whether more or less severe) in substitution as it thinks ought to have been passed, and if not of that opinion shall, in the case of an appeal against sentence, dismiss the appeal.
4. Subject to the provisions of this Act, the Court of Appeal shall, if it allows an appeal against acquittal, discharge or dismissal, direct a judgment and verdict of conviction to be entered and pass such sentences as the Court below could have passed, or order the Appellant to be re-tried by a Court of competent jurisdiction.
There is also the need to refer to S 164 (2) of the Law.
19
It reads thus “If the accused declared that he is not ready the Court shall consider the reasons he may give and if proceeding immediately with the trial is not likely in the opinion of the Court to prejudice the accused in his defence or the prosecutor in his convict of the case, the Court may proceed with the trial as if the new or altered charge had been the original charge.”
The essence of the provision of S. 164 of the Criminal Procedure Law is attainment of justice, as can be gathered from the above.
I therefore for the above reason and the other reasons ably adduced in the lead judgment leave no hesitation in dismissing this appeal and abiding by the consequential orders in the lead judgment.
20
Appearances:
E.O. Afolabi, Esq. with him, P.O. Osanebi, Esq. and I.I. Irele-Ifijeh, Esq.For Appellant(s)
Mrs. G.E. Adekanmbi (Director for Public Prosecution, Edo State Ministry of Justice) with him, O. Otokunrin, Esq. (Assistant Chief State Counsel)For Respondent(s)
Appearances
E.O. Afolabi, Esq. with him, P.O. Osanebi, Esq. and I.I. Irele-Ifijeh, Esq.For Appellant
AND
Mrs. G.E. Adekanmbi (Director for Public Prosecution, Edo State Ministry of Justice) with him, O. Otokunrin, Esq. (Assistant Chief State Counsel)For Respondent
