BASSEY EDIBI v. THE STATE
(2009)LCN/3486(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 18th day of March, 2009
CA/C/51/2004
RATIO
JUDGMENT: WHETHER A JUDGE WHO DID NOT CONDUCT THE ENTIRE TRIAL WRITE OR DELIVER JUDGMENT
it is a fundamental principle of law and practice that a judge who did not conduct the entire trial in a case cannot write and/or deliver judgment in the case, subject to a judge reading a judgment written by a Judge who heard the case and indicating so in the records. In the same vein a member of a panel of Judges who did not hear the entire case cannot sign the judgment in the case. See EGBA N. A. v. GBADAMOSI (1937) 13 NLR 119; RUNKA v KATSINA N. A. (1950) 13 WACA 98; RAJI v BAUCHI N.A. (1957) NRNLR 31. PER NWALI SYLVESTER NGWUTA, J.C.A
EVIDENCE: BURDEN OF PROOF IN CRIMINAL TRIAL
In a criminal trial the prosecution has a duty to prove the guilt of the accused beyond reasonable doubt. See Section 138(1) of the Evidence Act 2004. This means that every element constituting the crime allegedly committed by the accused must be established beyond reasonable doubt. PER NWALI SYLVESTER NGWUTA, J.C.A
CRIMINAL LAW: CRUCIAL ELEMENT IN A CHARGE
A crucial element in a charge of murder as defined in Section 316(1) of the Criminal Code and punishable under Section 319(1) of the same Code is the death of a person. Therefore, in a prosecution for murder the prosecution must prove the death of a person as a starting point, and the easiest but not the only way is the body of the victim. In this case the body of the alleged victim was not seen, there was no eyewitness to the alleged killing and the evidence upon which the trial Court relied was merely circumstantial. PER NWALI SYLVESTER NGWUTA, J.C.A
EVIDENCE: REQUIREMENT FOR CIRCUMSTANTIAL EVIDENCE TO PROVE THE GUILT OF AN ACCUSED PERSON
However, for circumstantial evidence to constitute sufficient proof of the guilt of an accused person, it must be conclusive, unequivocal and convincing as to lead irresistibly to no other conclusion than the guilt of the accused person. Such circumstantial evidence should be cogent and compelling as to convince the court that no rational hypothesis other than murder can the facts be accounted for. A conviction of murder on circumstantial evidence must point to the guilt of the accused with the accuracy of mathematics and not when the evidence points in more than one direction.
Mustapha Mohammed & 1 Or vs. The State (2007) 11 NWLR (Pt. 1045) 303 at 318. PER MOJEED ADEKUNLE OWOADE J.C.A.
Before Their Lordships
NWALI SYLVESTER NGWUTAJustice of The Court of Appeal of Nigeria
JEAN OMOKRIJustice of The Court of Appeal of Nigeria
MOJEED ADEKUNLE OWOADEJustice of The Court of Appeal of Nigeria
Between
BASSEY EDIBIAppellant(s)
AND
THE STATERespondent(s)
NWALI SYLVESTER NGWUTA, J.C.A (Delivering the Leading Judgment): This appeal is against the Judgment delivered by the High Court of Justice, Cross River State, Obubra Judicial Division on 19/4/97.
The appellant (as 1st accused) was arraigned with four other accused persons on a Charge of Murder on 25/5/95. Each accused pleaded not guilty before Obasse, J in the High Court, Obubra. The matter proceeded to trial and at the end of the prosecution’s case the learned trial Judge found that no prima facie case was made out against either of the 3rd, 4th and 5th accused persons. Each of the said 3rd, 4th and 5th accused persons was accordingly discharged. See page 21 of the records. The trial continued with the appellant as the 1st accused and Ukpai Obu as the second accused.
The defence rested its case on 2/12/96 and on 17/12/96 learned Counsel for the defence addressed the Court. On 29/1/97 the learned prosecuting Counsel replied before Obasse, J. who adjourned the case “to 17/3/97 for judgment at Obubra.” See page 81 of the records. On page 82 of the record the following appeared:
“Resumed at Obubra Before His Lordship Honourable Justice F. U. Ilok – Judge On Wednesday the 9th day of April 1997” In its judgment, running from page 82 – page 101 of the records the trial Court held
“The 2nd accused is hereby acquitted and discharged.”
See page 101 of the records. The trial Court found the appellant (1st accused) guilty of murder and sentenced him to death by hanging.
Aggrieved, Appellant filed a notice of appeal on seven grounds. Appellant was granted leave to amend his notice and grounds of appeal and the amended notice containing 9 grounds of appeal was deemed filed on 22/11/06.
From the 9 grounds of appeal learned Counsel for the appellant distilled the following three issues for the Court to determine:
(i) Whether the entire proceedings and or judgment of the lower Court are not a nullity, having regards to the point that the Honourable Justice F. U. Ilok who did not hear, listen to or watched the demeanour of the parties and their witnesses delivered and/or signed the judgment of the lower Court –
Ground 1.
(ii) Considering the state of evidence, particularly the scrappy, unreliable, terse, baseless and contradictory evidence led by the prosecution, whether or not the prosecution has proved the guilt of the appellant, thereby discharging the burden placed on it under our Laws – Grounds 3, 4, 5, 6, 7 and 9.
(iii) Whether or not the prosecution succeeded in proving the essential ingredients of murder under section 319(1) of the Criminal Code to justify the verdict of guilt entered by the lower Court against the appellant – Ground 2″
In his brief of argument learned Counsel for the Respondent identified the following three issues for the Court to resolve:
(i) Is the judgment of the lower Court a nullity?
(ii) Did the prosecution proof (sic) the Charge of Murder against the appellant?
(iii) Can the Court of Appeal in the circumstances order a retrial of the appellant?
Appellant’s issues are unnecessarily wordy and issues 2 and 3 are the same.
Appellant’s issues one and two are concisely reframed in the Respondent’s issues 1 and 2.
The Respondent did not cross-appeal and can only formulate issues from the appellant’s grounds of appeal or as in this case adopt and/or reframe appellant’s issues. Respondent’s issue 3 does not relate to any ground of appeal. It is therefore incompetent and is hereby struck out. See UCHE OMO v. JSC, DELTA (2000) 7 SC (PT. 11). I will adopt the Respondent’s issues 1 and 2 to determine the appeal.
In issue one in his brief of argument learned Counsel for the appellant referred to the records of the lower Court from page 33 for the plea of the appellant before Obasse, J. to page 81 where the same learned Judge adjourned the case to 17/3/97 for judgment at Obubra. He argued that Obasse, J. presided over the case from page 33 for the plea of the appellant to page 81 on 29/1/97 when the learned Judge having taken addresses from Counsel for the parties, adjourned for judgment. Counsel further argued that though Obasse, J. started and concluded the trial in the case and adjourned same for judgment, the judgment was delivered by Ilok, J. on 9/4/97. Counsel contended that it was constitutionally wrong for Ilok, J. who did not try the case to deliver judgment without any explanation whatsoever. He said his argument is in line with a plethora of decisions of appellate Courts. He relied on EGHOBAMIEN v. F. M.G.N. (2002) 17 NWLR (PT. 797) 488 among others. He made particular reference to the SHANU v AFRIBANK (NIG.) PLC (2002) 17 NWLR (PT. 795) 185 wherein he said the Supreme Court condemned the practice of a Judge other than the one who heard a case delivering judgment therein. He cited CHAPMAN vs CFAO (1943) 7 WACA 181 where it was held that a judgment given by a set of Chancellors, all of whom did not sit to hear evidence throughout the trial is a nullity. Further he referred to WESTERN STEEL WORKS LTD vs IRON STEEL WORKERS UNION (1986) 3 NWLR (PT. 30) 617 for the decision that consent of parties to any irregularity arising from incompetence of a Court cannot invest the Court with the jurisdiction it lacks. Learned Counsel characterized the judgment delivered by Ilok, J. who did not hear the case as a mockery of justice. He referred to section 294(2) of the 1999 Constitution and said the law does not perm it even an appellate Court Justice to write or sign a judgment in a case in which he did not sit. He urged the Court to resolve issue one in favour of the appellant.
In issue 2 learned Counsel referred to section 138 of the Evidence Act, OKEKE v. STATE (2003) 15 NWLR (PT. 842) and WAZIRI v THE STATE (1997) 3 NWLR (PT. 496) 689 on the burden of proof in criminal cases. He relied on a plethora of authorities in his contention that the State did not prove a charge of murder against the appellant. He referred to the evidence and said that none of the witnesses, especially Pw6 and Pw7 who said they were at the scene of the incident and the Police Sergeant who said he investigated the case saw the body of the man Michael Chukwu allegedly murdered.
Learned Counsel impugned the conviction of the appellant under section 317(1) of the Criminal Code even though he was charged under Section 319(1) of the said Code. He urged the Court to resolve issue 2 in favour of the appellant. He urged the Court to allow the appeal, set aside the decision of the lower Court and in its place discharge and acquit the appellant.
In issue one in his brief learned Counsel for the Respondent conceded that from the heading of the proceeding on 9th April, 1997 Ilok, J. presided at the delivery of judgment in the High Court Obubra. However, Counsel argued that the heading of the Record Book is done by the Clerk or Registrar of the Court and that a Judge sitting to deliver a judgment would read the judgment and sign it. He argued that the Clerk of the Court, used Ilok, J. as the presiding Judge, headed the record in the Judge’s name. He argued further that there is nothing in the record, apart from the heading on 9/4/97 to show that Obasse, J. did not sign the judgment. He referred to page 101 where it was stated “Sgd.” “Judge”. In issue 2 as to whether the prosecution proved its case he referred to IGABALI v STATE (2006) 6 NWLR (PT. 975) 100 AT 120 PARA D – H and said that the case against the appellant was proved. He said proof of guilt can be by direct evidence or circumstantial evidence. He relied on ARUMA v STATE (1990) 6 NWLR (PT. 155) 125, ADEKUNLE v STATE (2006) 10 MJSC 107 AT 121 PARA D – E, NIGERIA NAVY v LT. COMM. IBE LAMBART (2007) 7 MJSC 1 AT 10 PARA B. He referred to the evidence of Pw1 and Pw3 who said they saw blood stains in the room of Michael Chukwu the alleged victim and blood stains on the alleged victim’s mattress (foam) found under the bridge over Oyadama River, as well as the subsequent conduct of the appellant at the disappearance of the alleged victim. He said the appellant shared a room with the alleged victim, went away with some of the victim’s property and forged a receipt to show the property was his own. According to learned Counsel appellant was the last person to see the deceased and he must have killed the deceased as stated in Exhibit ‘C’ or he knows who killed the deceased. He urged the Court to dismiss the appeal.
It is not in dispute that Obasse, J. started, conducted and ended the trial of the appellant and adjourned the case for judgment. It is also not in dispute that Ilok, J. read the judgment without any explanation for so doing.
In a deserving circumstance one judge may read the judgment written by another judge who is unavoidably not available to deliver it. See RASAKI YUNUSA v MADAM SUWEBATU OTUN (1967) L.L.R. 34. However, there must be an indication that the judge is reading the judgment written by another Judge who is unavailable to deliver it in person. There was no such indication in the records in this case. Learned Counsel for the Respondent argued that the Clerk of Court having been used to the new Judge in the Division headed the record book in the Judge’s name. This is idle speculation based on nothing in the records. And even if the record book was headed in the name of Obasse, J. that by itself would not be enough to show that the judgment read by Ilok, J. without more was written by Obasse, J. With reference to the words “Sgd.” And “Judge” at the end of the judgment, Counsel for the Respondent contended that apart from the heading in the name of Ilok, J. there is nothing to show that Obasse, J. did not sign the judgment. With respect to learned Counsel, I am not impressed. The record book is headed in the name of Ilok, J. His Lordship read the judgment. In absence of any indication to the contrary there is a presumption of regularity that Ilok, J. whose name appeared in the heading of the record book and who read the judgment also signed it. See Section 150(1) of the EVIDENCE ACT, 2004. See also UDEH v. STATE (1999) 16 NWLR (PT. 609) 1 (SC); LOCKNAM v STATE (1972) 5 SC 22; EDUN v IGP (1966) 1 ALL NLR 17. The inevitable conclusion is Ilok, J. wrote, read and signed the judgment he delivered on 19/4/97 in the High Court, Obubra, Cross River State.
Learned Counsel for the Respondent argued that contrary to the records of the Court below the judgment read by Ilok, J. was signed by Obasse, J. He argued, “that apart from the said heading, there is nothing in the record of proceedings to the contrary that Honourable Justice J. U. Obasse did not sign the judgment.” From learned Counsel’s view it is not material who wrote the judgment. Be that as it may the other side of the coin is that there is nothing in the records to suggest that Obasse, J. whose name did not appear in the heading of the record book did sign the judgment. The view that accords with common sense and judicial practice is that Ilok, J. whose name appeared in the heading of the record book, who actually sat and read the judgment, not only signed, but also wrote it.
Counsel for the respondent limited himself to the tenuous argument that the judgment was signed by Obasse, J. without a thought to nullity vel non of the judgment if shown to have been written and signed by Ilok, J. who delivered it. My Lords, it is a fundamental principle of law and practice that a judge who did not conduct the entire trial in a case cannot write and/or deliver judgment in the case, subject to a judge reading a judgment written by a Judge who heard the case and indicating so in the records. In the same vein a member of a panel of Judges who did not hear the entire case cannot sign the judgment in the case. See EGBA N. A. v. GBADAMOSI (1937) 13 NLR 119; RUNKA v KATSINA N. A. (1950) 13 WACA 98; RAJI v BAUCHI N.A. (1957) NRNLR 31.
At the appellate level the Court gives judgment based on the cold records of appeal and argument of Counsel in the brief and a member of a panel who did not hear the entire appeal cannot sign the judgment. A judge of a trial Court cannot write a judgment based on the recorded evidence of witnesses in a case he did not try from the beginning to the end.
In my humble view the ends of justice cannot be met by reliance exclusively on the recorded testimony in the trial Court. The witness’ demeanour is material and a trial judge needs to interpret the unarticulated response or body language of the witness, an aid available only to the judge who sees and hears the witness give evidence. The entire proceedings in this case is a constitutional disaster of monumental dimensions. Obasse, J, tried the case and adjourned same for judgment. The trial was aborted as the judgment was not delivered and no reason was given for the default.
Ilok, J. did not try the case. He did not hear the prosecution, nor did he hear the appellant in his defence, yet His Lordship came up with a judgment from the blues as it were. The judgment so delivered is a violation of the appellant’s constitutional right to a fair hearing guaranteed in Section 36(1) of the Constitution of the Federal Republic of Nigeria 1999. It is a rape of the rules of natural justice. I declare that a judgment, as in this case, written and signed and delivered by a judge who did not see and hear the witnesses testify is a nullity. I resolve issue one in favour of the appellant.
Assuming, but not conceding that my decision in issue one is wrong I will determine the appeal on the merit.
In a criminal trial the prosecution has a duty to prove the guilt of the accused beyond reasonable doubt. See Section 138(1) of the Evidence Act 2004. This means that every element constituting the crime allegedly committed by the accused must be established beyond reasonable doubt. A crucial element in a charge of murder as defined in Section 316(1) of the Criminal Code and punishable under Section 319(1) of the same Code is the death of a person. Therefore, in a prosecution for murder the prosecution must prove the death of a person as a starting point, and the easiest but not the only way is the body of the victim. In this case the body of the alleged victim was not seen, there was no eyewitness to the alleged killing and the evidence upon which the trial Court relied was merely circumstantial. Pw1 did not know the appellant. His grandmother told him the tenant Michael Chukwu had not been seen for about 2 days. He saw Michael’s foam under Onyadama River Bridge with some bloodstains.
Pw2 saw the appellant who was arrested for carrying a standing stove. Pw3 saw blood stains in the front of Michael Chukwu’s room. He saw the appellant enter the room and take a stove. He took part in search for Michael Chukwu from Ediba to Unwana Afikpo, Ebonyi State. He said appellant lived with Michael Chukwu. Pw4 said “I know Michael Chukwu when he was living at Onyadama, do not know where he is now. I am the Village Head of Onyadma.” Pw5 could not remember when last he saw Michael Chukwu. He said he does not know where he is. Pw6 saw a mattress on top of which was a pair of shoes. Pw7 who investigated the case did not see the body of the alleged victim. No witness said he saw Michael Chukwu killed, rather no one knows where he was, including the village head Pw4. There was no evidence that the alleged bloodstain in front of Michael Chukwu’s room or on the foam was human blood and if so there was no evidence it was the blood of Michael Chukwu, the alleged victim. A search for him was conducted from Ediba to Unwana but those were not the only places he could have gone to. The whole incident could be a hoax created by Michael Chukwu with the aid of his friends, especially as he was not seen for two days before the incident. The circumstantial evidence adduced by the prosecution must point to an irresistible inference that the said Michael Chukwu was dead before any other element of murder can be relevant. The evidence is subject to several interpretations – see ESI v STATE (1976) 1 SC 39, EZE v STATE (1976) 1 SC 125, OMOGODO V STATE (1981) 5 SC 5. It is not necessary to inquire whether or not the appellant caused the alleged death when no death was established. Even if the evidence of the prosecution witness is believed, the evidence does not prove that Michael Chukwu is dead. Above notwithstanding the Court at page 100 of the record held:
“It is to be noted that although the 1st accused denied taking part directly in the killing of Michael Chukwu, Exhibits P, Q and C are to the effect that he was in the conspiracy to kill the deceased. He cannot therefore be exonerated from the murder of Michael Chukwu”
At page 101 the Court said “The 2nd accused is hereby acquitted and discharged”. Appellant and his co-accused were not charged with conspiracy even if there was a case of murder. And if there was a charge of conspiracy the Court cannot discharge one of the alleged conspirators and convict one of them on the same charge for no one can conspire with himself. Appellant was convicted and sentenced to death on a charge of conspiracy for which he was neither charged nor tried. He was convicted even after his alleged co-conspirators had been discharged on a charge of murder with none being tried and/or convicted on a charge of conspiracy to murder. I resolve issue two in favour of the appellant.
In issue one I allow the appeal and declare the judgment a nullity. In issue two, in the alternative I allow the appeal and set aside the conviction of, and sentence passed on the appellant.
JEAN OMOKRI, J.C.A.: I have read, in advance, the judgment just delivered by my learned brother, N. S. Ngwuta, JCA. I agree with his reasoning and conclusions that the appeal be allowed. I also allow the appeal. I abide by the consequential order.
MOJEED ADEKUNLE OWOADE J.C.A.: I read in advance the judgment just delivered by my learned brother Ngwuta JCA. I agree with the reasoning and the conclusions. I also allow the appeal and unhesitatingly quash the conviction of the Appellant for the offence of murder.
The judgment of the lower court in this case was faulted in two important respects.
First, the records of the court show that the trial was commenced and conducted by Obasse, J. in the High Court, Obubra while the judgment was written, signed and delivered by Ilok, J. of the same High Court. The Respondent’s argument on this fundamental observation as having arose from a mistake by the clerk of court cannot be countenanced. This is because, Records of proceedings/appeal bind the parties and the court until the contrary is proved. The simple rational for this rule is the presumption, though rebuttable of the genuineness of records of court. Chief S. O. Agbareh & 1 Or vs. Dr. Anthony Mimra & 2 Ors (2008) 2 NWLR (Pt. 1071) 370 at 411.
Secondly, while it is possible in law for the judgment of a trial Judge who has heard, concluded and written a judgment in a case to be read by another Judge with an explanation for delivering the judgment in the absence of a Judge who wrote the judgment, it is totally unacceptable, even from the face of the record, for one Judge to hear a case and for another Judge to write, sign and deliver the judgment in the same case.
For this reason alone, my learned brother Ngwuta JCA who read the lead judgment was not only right to have declared the judgment in this appeal as a nullity but also right to have described the judgment as a charade and a mockery of justice.
I will add that it is a reckless and total breach of all the tenets of adjudication.
Second, the body of the deceased in this case was not found. The prosecution then sought to prove both the fact of death and the guilt of the accused by circumstantial evidence. Unfortunately, the circumstantial evidence tendered in prove of the instances were scanty, vague, unconvincing and unreliable. Of the seven (7) witnesses called by the Prosecution, their unreliable best was the evidence of PW3, who saw blood stains in the front of Michael Chukwu’s room and saw the Appellant enter the room to take a stove. He said Appellant lived with Michael Chukwu and he (PW3) took part in the search for Michael Chukwu from Ediba to Unwana Afikpo, in Ebonyi State.
Truly, both the fact of death and indeed the guilty of the accused in cases of murder can be proved by circumstantial evidence. However, for circumstantial evidence to constitute sufficient proof of the guilt of an accused person, it must be conclusive, unequivocal and convincing as to lead irresistibly to no other conclusion than the guilt of the accused person. Such circumstantial evidence should be cogent and compelling as to convince the court that no rational hypothesis other than murder can the facts be accounted for. A conviction of murder on circumstantial evidence must point to the guilt of the accused with the accuracy of mathematics and not when the evidence points in more than one direction.
Mustapha Mohammed & 1 Or vs. The State (2007) 11 NWLR (Pt. 1045) 303 at 318.
In the instant case, the quality of the circumstantial evidence offered by the prosecution was neither sufficient to prove the fact of death nor the guilt of the Appellant for the offence of murder.
For these reasons and the fuller reasons contained in the judgment of my learned brother Ngwuta JCA I also allow the appeal.
Appearances
NTA A. NTA ESQ.For Appellant
AND
UBA EGBE ESQ, DPPFor Respondent
