ARCHIBONG GEORGE USEN v. THE STATE
(2015)LCN/7993(CA)
In The Court of Appeal of Nigeria
On Monday, the 31st day of August, 2015
CA/C/422C/2014
RATIO
CRIMINAL PROCEDURE: THE DUTY OF THE COURT TO ENSURE THAT THE ACCUSED PERSON IS AVAILED EVERY OPPORTUNITY TO DEFEND HIMSELF
In a criminal trial albeit one involving a capital offence, everything must be done to ensure that the accused person or criminal defendant is availed every opportunity to defend himself and fight for his life. This duty enjoins the Court to appoint counsel for him where he does not have one. The right to counsel must be ensured at every stage of the trial which necessarily includes the final address stage. Failure to do this detracts from the quality of fairness the trial should have and definitely vitiates it. Shutting out the appellant was tantamount to punishing him for the inappropriate conduct of his counsel. A step repeatedly frowned upon by the Courts, See BELLO AKANBI & 3 ORS V MAMUDU ALAO ANOR (1989) 3NWLR (PART 108) 118 and OGUNDOYIN V. ADEYEMI (2001) 13 NWLR (PART 73O) PAGE 403. per. JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.
EVIDENCE: WHETHER THE COURT SHALL TAKE INTO CONSIDERATION A STATEMENT MADE BY A PERSON IN THE PRESENCE OF ONE OR MORE OF THE PERSON HE IS CHARGED JOINTLY WITH
Section 29 (4) of the Evidence Act, 2011 provides as follows: “Where more persons than one are charged jointly with an offence and a confession made by one of such persons in the presence of one or more of the other persons so charged is given in evidence, the Court shall not take such statement into consideration as against any of such other persons in whose presence it was made unless he adopted the said statement by words or conduct.” This position of the law has been re-affirmed in a number of judicial decisions including OZAKI VS STATE (1990) 1 NWLR (PT 124) 92, GBADAMOSI VS STATE (1991) 6 NWLR (PT 196) 182, IREGU VS STATE (2013) 12 NWLR (pr 1367) 92, ADELEKE VS STATE (2013) 16 NWLR (pr 1381) 556, ADISA VS STATE (2013) L4 NWLR (PT 1375) 567, ADEBOWALE VS STATE (2013) 16 NWLR (PT 1379) 104 and KAYODE IDOWU VS THE STATE (1999) 11 NWLR (PT 574) 354. per. JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.
EVIDENCE: CONFESSION; WHETHER THE DUTY OF THE PROSECUTOR TO PROVE THE GUILT OF AN ACCUSED IS MADE EASIER BY THE CONFESSION OF AN ACCUSED NOT SUPPORTED BY ANY ADOPTION OF THE SAID CONFESSION BY THE CO-ACCUSED OR ANY INDEPENDENT PIECE OF EVIDENCE LINKING THE CO-ACCUSED WITH THE CONFESSION
It is the duty of the prosecution to prove the guilt of the accused and this duty is not made easier by the confession of an accused not supported by any adoption of the said confession by the co-accused or any independent piece of evidence linking the co-accused with the confession. per. JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.
CRIMINAL LAW: THE DEFENCE OF ALIBI; THE MEANING OF ALIBI
Alibi has been described as a defence which seeks to persuade the Court that the accused could not possibly be at the scene of the crime as he was somewhere else where most probably there were people who could testify that at the time of the alleged incident or act he was not at the scene of the crime unless he is capable of being in two places at the same time. See SOWEMIMO VS THE STATE (2004) 18 NSCQR 24 at 94 per ACHOLONU JSC. per. JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A.
JUSTICES
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria
JOSEPH OLUBUNMI KAYODE OYEWOLE Justice of The Court of Appeal of Nigeria
Between
ARCHIBONG GEORGE USEN – Appellant(s)
AND
THE STATE – Respondent(s)
JOSEPH OLUBUNMI KAYODE OYEWOLE, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the judgment of the High Court of Akwa-Ibom State, Uyo Judicial Division, delivered on the 23rd day of June, 2014.
The appellant was co-accused at the trial for the murder of a local trader in Mbioto 11 Village, Etinan Local Government of Akwa Ibom State.
The evidence at trial was that the 1st accused was arrested while rummaging through the shop of the deceased who had gone missing a few days before then. He was taken to the police station and confessed that the deceased was murdered in the course of a burglary committed by him and some others which included the appellant. A search of his premises revealed items taken away from the scene of the alleged crime some of which belonged to PW1 and the rest to the deceased. The 1st accused led the police investigators to the residence of the appellant who was promptly arrested. Appellant insisted on his innocence and gave an alibi which was refuted at trial by those named by him. He gave evidence from the witness box denying the allegation and was duly cross-examined. In his considered
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judgment at the end of the trial, the learned trial Judge found the appellant guilty of the alleged murder, convicted and sentenced him accordingly.
Obviously dissatisfied, the appellant invoked the Appellate jurisdiction of this Court via a notice of appeal dated 16th September, 2014 but filed on 22nd September, 2014 containing 4 grounds.
At the hearing of the appeal, Mr. Omoaka the learned counsel for the appellant adopted his appellant’s brief filed on 4th November, 2014 as his arguments in respect of this appeal.
Therein, he identified and argued 3 issues for determination as follows:
(i) By proceeding to bar or preclude the appellant from submitting his final written address on the ground that counsel to the appellant failed to take advantage of opportunities given to him so to do, did the learned trial Judge not infringe on the appellant’s right to a fair hearing as guaranteed under the constitution of the Federal Republic of Nigeria (as amended).
(ii) Was the learned trial Judge right to have convicted the appellant on the strength of Exhibit 3, the confessional statement of the 1st accused person in
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spite of the fact that the appellant neither adopted nor confirmed the contents of Exhibit 3 and after the learned trial Judge had correctly found that Exhibit 3 was not legal evidence against the appellant.
(iii) On the evidence, can it be said that the prosecution proved its case beyond reasonable doubt as to justify the appellant’s conviction for murder.
For the respondent, Mr. Umoren adopted the respondent’s brief filed on 10th April, 2015 but deemed properly filed on l8th June , 2015 as his arguments in opposing the appeal. Therein he adopted the issues for determination formulated by the appellant.
That being so, they said issues shall be considered seriatim.
Issue 1 is: By proceeding to bar or
preclude the appellant from submitting
his final written address on the ground
that counsel to the appellant failed to
take advantage of opportunities given to
him so to do, did the learned trial Judge
not infringe on the appellant’s right to a
fair hearing
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as guaranteed under the
Constitution of the Federal Republic of
Nigeria (as amended). By proceeding to bar
or preclude the appellant from submitting
his final written address on the ground
that counsel to the appellant failed to
take advantage of opportunities given to
him so to do, did the learned trial Judge
not infringe on the appellant’s right to a
fair hearing as guaranteed under the
Constitution of the Federal Republic of
Nigeria (as amended).
Arguing this issue, Mr. Omoaka submitted that although the learned trial Judge adjourned a number of times for the defence counsel to make his final address, he acted in error and violated the appellant’s right to fair hearing by concluding the case without the said address thereby occasioning failure of justice. He referred to OBODO VS OLOMU (1987) 3 NWLR (PT 59) 111 at 120.
He urged the Court to declare the trial a nullity.
?For the
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respondent, Mr. Umoren submitted that opportunities were granted to the appellant to present the final address which opportunities went unutilized and which failure could not be blamed on the trial Court. He referred to NEWSWATCH COMMUNICATIONS LTD VS ATTA (2006) 12 NWLR (PT 993) L49, KUBAU VS RILWANU (2014) 4 NWLR (PT 1397) 292, OKORIE VS EFCC (2008) 5 NWLR (PT 1081) 511 and UMA VS EFFIOM (2014) ALL FWLR (PT 731) 1631.
He further submitted that the learned trial Judge duly complied with the law in ensuring that the appellant was represented by Court appointed counsel throughout the trial and that once the said counsel absconded at the address stage, the Court had no duty to appoint another counsel as cases are not decided based on address. He referred to NEWSWATCH COMMUNICATIONS LTD VS ATTA (supra).
He urged the Court to hold that there was no denial of fair hearing.
The facts of what transpired at trial are not in contention. The prosecution solely addressed the Court while the appellant did not present a final address before the learned trial Judge preceded to judgment. The reason for this was that the
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defence counsel ceased appearing without any explanation and after several adjournments for him to show up and do the needful, the trial Court decided to shut the appellant out.
Even in a civil proceeding, a final address is not to be trifled with.
ALAGOA, JSC stated the position of the law thus:
“The need for Counsel to sum up his case and
address Court cannot be over-emphasized. For
one, it is of immense value to the judge in his
appreciation of facts and summing up of
evidence before him. This is made explicitly
clear in the case of Mogaji V. Odofin (1978) 4
SC 91 at Page 94 where the Supreme Court
held as follows:-“In short, before a Judge before
whom evidence is adduced by the parties in a
Civil case comes to a decision as to which
evidence he believes or accepts and which
evidence he rejects, he should first of all put
the totality of the testimony adduced
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by both parties on that imaginary scale;
he will put the
evidence adduced by the plaintiff on one side
of the scale and that of the defendant on the
other side and weigh them together. He will
then see which is heavier not by the number of
witnesses called by each party, but by the
quality of the probative value of the testimony
of those witnesses.”The Court can only
properly evaluate evidence adduced when
counsel in a matter have properly summed
up.”See MPAMA VS FIRST BANK OF NIGERIA PLC (2013) 53 NSCQR 190 at 212.
In a criminal trial albeit one involving a capital offence, everything must be done to ensure that the accused person or criminal defendant is availed every opportunity to defend himself and fight for his life. This duty enjoins the Court to appoint counsel for him where he does not have one. The right to counsel must be ensured at every stage of the trial which necessarily
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includes the final address stage.
Failure to do this detracts from the quality of fairness the trial should have and definitely vitiates it. Shutting out the appellant was tantamount to punishing him for the inappropriate conduct of his counsel. A step repeatedly frowned upon by the Courts, See BELLO AKANBI & 3 ORS V MAMUDU ALAO ANOR (1989) 3NWLR (PART 108) 118 and OGUNDOYIN V. ADEYEMI (2001) 13 NWLR (PART 73O) PAGE 403.
The proper course for the learned trial Judge to have taken the moment it was certain that the defence counsel had taken the unprofessional step of absconding from the trial was to appoint a new counsel to continue from where he stopped.
In the circumstances, I resolve this issue in favour of the appellant.
I shall now proceed to the next issue which is; was the learned trial Judge right to have convicted the appellant on the strength of Exhibit 3, the confessional statement of the 1st accused person in spite of the fact that the appellant neither adopted nor confirmed the contents of Exhibit 3 and after the learned trial Judge had correctly found that Exhibit 3 was not legal evidence against the
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appellant.
Arguing the said issue Mr. Omoaka submitted that having correctly observed that the confession of an accused does not bind the co-accused, the learned trial Judge proceeded to convict the appellant based on Exhibit 3, the confessional statement of his co-accused despite the fact that the said confession was not adopted by the appellant. He referred to Section 29(4) of the Evidence Act, OZAKI VS STATE (1990) I NWLR (VR 124) 92, GBADAMOSI VS STATE (1991) 6 NWLR (PT 196) 182,IREGU VS STATE (2013) 12 NWLR (PT 1367) 92, ADELEKE VS STATE (2013) 16 NWLR (PR 1381) 556, ADISA VS STATE (2013) 14 NWTR (PT 137S) 562 and ADEBOWATE VS STATE (2013) 16 NWLR (PT 1379) 104.
For the respondent, Mr. Umoren submitted that the evidence of a co-accused incriminating another is reliable and credible evidence. He referred to IDAHOSA VS QUEEN (1965) NMLR 85.
He further submitted that the confession of a co-accused could be adopted by conduct especially as the appellant did not protest when the said statement was read in open Court. He referred to Section 29 (4) of the Evidence Act, R VS DIBBLE (1908) 1 CAR 155, R VS
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CAMPELL AND WILLIAMS (1993) CLR 448 and R VS MYERS (1966) TIMES 23.
The learned counsel further submitted that evidence of an accused is admissible against the co-accused in exceptional circumstances where there is independent corroborative evidence linking the co-accused from the said statement. He referred to ADELEKE vs THE STATE (2014) 230 LRCN 161 at 167.
He also submitted that there was evidence of common intention, that the Court could convict on the evidence of an accomplice and that there was cogent and convincing evidence from PW4, PW5 and PW7 corroborating Exhibit 3 upon which the Court could safely convict.
Section 29 (4) of the Evidence Act, 2011 provides as follows:
“Where more persons than one are charged
jointly with an offence and a confession
made by one of such persons in the
presence of one or more of the other
persons so charged is given in evidence,
the Court shall not take such statement
into consideration as against any of such
other persons in whose
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presence it was
made unless he adopted the said statement
by words or conduct.”
This position of the law has been re-affirmed in a number of judicial decisions including OZAKI VS STATE (1990) 1 NWLR (PT 124) 92, GBADAMOSI VS STATE (1991) 6 NWLR (PT 196) 182, IREGU VS STATE (2013) 12 NWLR (pr 1367) 92, ADELEKE VS STATE (2013) 16 NWLR (pr 1381) 556, ADISA VS STATE (2013) L4 NWLR (PT 1375) 567, ADEBOWALE VS STATE (2013) 16 NWLR (PT 1379) 104 and KAYODE IDOWU VS THE STATE (1999) 11 NWLR (PT 574) 354.
The facts adduced before the trial Court included the confessional extra judicial statement of the co-accused of the appellant admitted as Exhibit 3 at the trial.
The said Exhibit 3 was admitted without objection and was obtained prior to the arrest of the appellant by the police investigator PW7. The said statement implicated the appellant and ascribed roles to him in the criminal enterprise which led to his arrest by PW7 assisted by the 1st accused who made the said confession.
The extra judicial statement of the appellant made upon his arrest dated 27/1/2005 admitted as
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Exhibit 5 is contained on pages 30-31 of the record of appeal. In the said statement the appellant denied being involved in either the burglary or the subsequent murder of the deceased. At trial, he testified on oath and reiterated his earlier denial.
While various items belonging to the deceased and PW2 were recovered from the premises of the 1st accused who was also the person arrested by PW1 in the shop of the deceased trying to further steal therefrom, the search conducted on the premises of the appellant did not yield anything incriminating.
The confession of the 1st accused was admitted as Exhibit 3. It was made on 26/1/2005 and it is contained on pages 24-25 of the record of appeal. The initial 2nd accused, who died in the course of the trial, did not also make any confessional statement.
It was contended by the respondent that the appellant did not distance himself from the confession of his co-accused in the course of the trial. I find it difficult to comprehend this submission.
While counsel has a duty to vigorously canvass his position, the responsibility of the public prosecutor is on higher pedestal. Chivalry is a necessary
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virtue to be displayed by every prosecutor otherwise he becomes a persecutor.
An accused person who made a statement at the investigation stage denying every aspect of an offence earlier confessed to in his absence by his co-accused and followed this up by giving similar evidence from the witness box during the trial maintaining his innocence even under cross-examination has done everything expected of him. Counsel must see this as a consistent denial of the alleged offence and is not permitted to misrepresent the facts to the Court.
I have repeatedly perused the record of appeal herein and it is evidently glaring that the confession of the 1st accused was made before the arrest of the appellant as it in fact led to his arrest. The appellant denied his said involvement in the alleged offence to the police in his extra judicial statement and in his evidence on oath before the trial Court. It is erroneous to conclude that he adopted the said confession by conduct or in any form or manner.
It is the duty of the prosecution to prove the guilt of the accused and this duty is not made easier by the confession of an accused not supported by any
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adoption of the said confession by the co-accused or any independent piece of evidence linking the co-accused with the confession.
Unlike the plethora of decided cases referred to by the Mr. Umoren for the respondent, the prosecution did not adduce any corroborative piece of evidence linking the appellant with the confessed crime. None of the prosecution witnesses located him at the scene of crime and the investigation failed to appropriately incriminate him.
Counsel raised the issue of alibi.
Alibi has been described as a defence which seeks to persuade the Court that the accused could not possibly be at the scene of the crime as he was somewhere else where most probably there were people who could testify that at the time of the alleged incident or act he was not at the scene of the crime unless he is capable of being in two places at the same time. See SOWEMIMO VS THE STATE (2004) 18 NSCQR 24 at 94 per ACHOLONU JSC.
The alibi provided by the appellant was displaced by the testimonies of PW4 and PW5 which suggests that the appellant lied about his whereabouts on the night of the incident which raises suspicions about his
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innocence. The alleged statement said to have been uttered by him when PW7 made to arrest him that he had no hand in the death of the deceased could possibly heighten the suspicion.
However, suspicion ought to fuel investigation and result in proof, Suspicion not turned to proof by proper investigation remains suspicion and cannot be elevated to the status of proof beyond reasonable doubt as required by law. Anything to the contrary would detract from the quality of justice envisaged by the Constitution as a prerequisite for the conclusion of guilt. See KAYODE IDOWU VS THE STATE (supra).
Mr. Umoren as part of his fishing expedition made allusions to the present facts justifying the invocation of the doctrine of common intention into the facts adduced by the prosecution.
Before common intention can be invoked there must be evidence of some joint activities between the appellant and his co-accused relating to the criminal enterprise but this was not the case here as nothing outside the confession of the co-accused which the appellant distance himself from, located him at the scene of the crime.
Learned counsel, Mr. Umoren
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also submitted that Courts do convict on circumstantial evidence. The submission is valid in law. However, for the Court to convict on the basis of circumstantial evidence it must consist of the existence of a number of circumstances which are accepted so as to make a complete unbroken chain of evidence upon which the Court may properly act. It is evidenced of surrounding circumstances which, by undersigned coincidence, is capable of proving a proposition with the accuracy of mathematics. In order to secure a conviction in a criminal trial, circumstantial evidence available must be cogent, complete and unequivocal. Such evidence must be compelling and must lead to the irresistible conclusion that the accused and no one else must have committed the crime. See UKORAH v STATE (1977) a SC177; PIUS NWEKE V STATE (2001) 4 NWLR (PT 704) 588; OBIAKOR v STATE (2002) 10 NWLR (PT 776) 612 at 629 and AIGBADION v STATE (2000) 4 SCNJ1 at 11.
The circumstantial evidence adduced at trial by the respondent against the appellant herein is not of the quality to justify his being convicted by the trial Court.
I therefore resolve this issue in favour of
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the appellant and against the respondent.
The remaining issue is on the evidence, can it be said that the prosecution proved its case beyond reasonable doubt as to justify the appellant’s conviction for murder.
Arguing the issue Mr. Omoaka outlined the essential ingredients of the alleged offence of murder and reiterated his earlier arguments on issue 2 and urged the Court to resolve the issue in favour of the appellant.
On his part, Mr. Umoren equally went through the evidence adduced by the prosecution at trial and urged the Court to affirm the judgment of the learned trial Judge.
In all criminal cases, onus of proof is on the prosecution as the defendants are pursuant to Section 36 (5) of the Constitution presumed innocent until proven guilty.
Proof beyond reasonable doubt is proof that precludes every reasonable hypothesis except that which it tends to support and it is proof, which is wholly consistent with the guilt of the defendant and inconsistent with any other rational conclusion. Therefore, in a criminal trial, for evidence to warrant or shore up conviction, it must exclude beyond all reasonable doubt every other conceivable,
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imaginable state of affair other than that of the guilt of the defendant as he shall be entitled to acquittal of crime charged if conclusion for conviction is not the only reasonable interpretation of which the facts adduced against him are susceptible. See UBANI VS STATE (2003) 4 NWLR (PT 809) 51 at 64 and NWANKWO VS FRN (2003) 4 NWLR (PT 809) 1 at 35-36.
From the analysis made earlier in consideration of issue 2, it is evident that the case presented by the prosecution in this case falls far short of the quality as could justify a criminal conviction especially conviction for a capital offence.
It is incumbent on the trial Judge to keep fidelity with the cold facts as presented and not permit a desire for justice which runs ahead of the legal requirements for justice is such if only it is done according to law. Otherwise it adorns the cloak of arbitrariness which is antithetical to the rule of law. In conclusion therefore, I find merit in this appeal and I allow it.
The judgment of the trial Court delivered on the 23rd day of June, 2014 is hereby set aside. I hereby discharge and acquit the appellant while quashing
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his conviction and sentence as contained in the said judgment.
CHIOMA EGONDU NWOSU-IHEME J.C.A.:
I had the opportunity of reading in advance, a draft copy of the judgment just delivered by my learned brother, J. O. K. OYEWOLE, JCA, in which the appeal has been allowed. The issues raised in this appeal have been completely resolved. I am in complete agreement with his reasoning and conclusion, which I adopt as mine. I also allow the appeal and set aside the conviction of the Appellant.
The Appellant is accordingly discharged and acquitted.
PAUL OBI ELECHI J.C.A. :
I read in advance the draft of the Judgment just delivered by my Learned brother Joseph Olubunmi Kayode Oyewole, JCA . The issues for determination have been well considered and conclusion arrived meritoriously.
I therefore agree with the decision arrived at and also adopt same as mine. I also allow the appeal. Consequently, the Judgment of the trial Court delivered on the 23rd day of June 2014 is hereby set aside. The accused person is discharged and acquitted while the conviction and Sentence
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of the Appellant are hereby quashed. Appeal allowed.
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Appearances:
G. Omoaka, Esq.For Appellant(s)
J. Umoren, Esq.For Respondent(s)
Appearances
G. Omoaka, Esq.For Appellant
AND
J. Umoren, Esq.For Respondent
