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CHIKWE v. STATE (2022)

CHIKWE v. STATE

(2022)LCN/16269(CA)

In The Court Of Appeal

(OWERRI JUDICIAL DIVISION)

On Thursday, March 17, 2022

CA/OW/215C/2020

Before Our Lordships:

James Gambo Abundaga Justice of the Court of Appeal

Ibrahim Wakili Jauro Justice of the Court of Appeal

Ademola Samuel Bola Justice of the Court of Appeal

Between

ANTHONY CHIKWE APPELANT(S)

And

THE STATE RESPONDENT(S)

 

RATIO:

AN EXTRA JUDICIAL STATEMENT OF WITNESSES IS ADMISSIBLE WHERE A PARTY SEEKS TO USE IT TO CONTRADICT EVIDENCE         

On the failure of the prosecution to tender all the extra-judicial statements of the Appellant in evidence in Court at the trial, counsel submitted that it is not compulsory for the prosecution to tender the statements made by the parties before it could have been held to have proved its case as required by law. See ORANIKA V. STATE LPELR 45481(CA).
“Recently and emphatically in AFAM OKEKE V THE STATE (2016) LPELR 40024 (CA) held per Helen Ogunwumiju, JCA in his lead judgment; ‘that the extra judicial statement of witnesses in a criminal trial is inadmissible as evidence for either the prosecution or the defence. The admissible evidence is the evidence on oath in open Court by the witness which is subject to cross-examination by the adverse party. The only time when an extra judicial statement of a party is admissible is where a party seeks to use it to contradict the evidence of a witness already given on oath; For the avoidance of doubt on what an extra-judicial statement is; at page 148 of Babalola’s Law Dictionary, “it is defined as; a statement written or made outside the Court.” See also Ajudua V. FRN (2017) 2 NWLR (pt. 1548)1. IBRAHIM WAKILI JAURO, J.C.A

THE POSITION OF THE LAW OF MAKIMG USE OF AN EXTRA – JUDICIAL STATEMENT MADE BY PROSECUTION WITNESS

The position of law is that before the Court can admit and make use of an extra-judicial statement made by prosecution witness or defence witness, the witnesses must have been confronted with the statement under cross-examination in order to discredit such statement. See ESANGBEDO V STATE  (1989)4 NWLR (PT. 113) at 66 para F. IBRAHIM WAKILI JAURO, J.C.A

THE PRINCIPLE OF THE LAW ON TENDERING ALL THE EXTRA – JUDICIAL STATEEMENTS MADE BY AN ACCUSED

It Is not law that the failure to tender all the extra-judicial statements made by an accused at all events can lead to aquittal. In the case of Iliyasu v. The state (2020) LPELR – 50325 (CA), PP. 33 – 35 paras A – E, it was held that before the failure to tender at trial all extra-judicial statements made by an accused person in the course of investigation in evidence can amount to withholding evidence and thus raise a presumption in favour of the accused person there must be evidence that the accused person made a demand of the prosecution by a subpoena or otherwise for production of those and the request was turned down or refused. See also Adekoya v. The State (2010) LPELR – 3604 (CA). In this appeal, it has not been shown that the appellant applied for the production of the statements allegedly not tendered and it was refused. Therefore, this argument is unavailing to the appellant. IBRAHIM WAKILI JAURO, J.C.A

IBRAHIM WAKILI JAURO, J.C.A. (Delivering the Leading Judgment): This appeal is against the Judgment of the High Court of Abia State (hereinafter referred to as the “lower Court”) delivered on 19th day of April, 2010 by Hon. Justice I. N. Akanos (hereinafter referred to as the “trial Judge”).The Appellant and one other were arraigned on a two Court information of conspiracy to commit murder and murder of one Chidiebere Onwudebe. Both accused pleaded not guilty. The prosecution in the course of trial called five witness and each of the accused person testified in his defence.

At the end of trial, the Appellant was convicted and sentenced to death by hanging. Dissatisfied with the Judgment the Appellant sought leave to appeal out of time which was granted and the Appellant filed an Amended Notice of appeal containing four grounds on 9th September 2020 but which was deemed properly filed on the 1st day of March 2021.

ISSUES FOR DETERMINATION
The Appellant amended brief settled by Chuks L. Ugwu Esq., was filed on the 12/3/21 and deemed on 26/1/22. From the four grounds of appeal, the Appellant formulated the following two issues for determination:
1. Whether having regard to the evidence led by the parties and the judgment in this case, there was not a failure, neglect or omission on the part of the learned trial judge to properly, scrupulously and fairly evaluate the evidence, particularly that of the appellant before arriving on the guilty verdict of the appellant? (Distilled from Grounds 1, 2 and 3).
2. Whether failure of the prosecution to tender all the extra-judicial statements of the appellant in evidence in Court at the trial did not render the trial unfair? (Distilled from Ground 4).

The Respondent’s brief of argument settled by N. J. Obioma Esq., learned Director of Public Prosecution, Abia State was filed on 22/1/21 and deemed on 1/3/21. Upon the receipt of the Respondent’s brief the Appellant’s Counsel filed their reply brief on 1/3/21.

Learned D.P.P. for the Respondent distilled a lone issue for determination and that is:-
“Whether the lower Court was right in convicting the Appellant to death for conspiracy and murder contrary to Sections 324, 319(1) of the Criminal Code, Vol. 11, Cap. 30 Laws of the Eastern Nigeria 1963.”

The two issues formulated by the Appellant in my view are adequate to deal with this appeal and I so adopt them as mine.

Submissions of Appellant
Issue one
Whether having regard to the evidence led by the parties and the judgment in this case, there was not a failure, neglect or omission on the part of the learned trial judge to properly, scrupulously and fairly evaluate the evidence, particularly that of the Appellant before arriving on the guilty verdict of the Appellant?

Learned Counsel for the Appellant submitted that the trial Judge did not give proper consideration to the evidence of the Appellant. And that to prove murder the following three ingredients must be established:-
a. “That the deceased is dead;
b. That the death of the deceased resulted from the act of the Appellant; and
c. That the act or omission of the Appellant, which caused the death of the deceased was intentional with the full knowledge that death or grievous bodily harm was its probable consequences.
See Maiyaki v. State (2008) 15 NWLR (Pt. 1109) p. 173, State v. Azeez (2008) 14 NWLR (Pt. 1108) P. 439.” Counsel for the Appellant conceded that the 1st ingredient was indeed proved but certainly not the 2nd and 3rd ingredients. On evaluation of evidence counsel cited Akinbade v. Bolatunde (2018) 7 NWLR (Pt. 1618) pg. 366 at 395 paragraphs D – E where the apex Court held as follows:
“Evaluation of evidence entails the trial Judge examining all the evidence before him before making his findings. This is done by putting all the evidence on an imaginary scale to see which side outweighs the other… Evaluation involves reviewing and criticizing as well as estimating the evidence, and it is by this process that the Court can arrive at the proper decision of who to believe and who to disbelieve. The belief must be a reasoned preference of one piece or version of evidence to the other”
And in Maiyaki v State (Supra) it was held-
“Proper evaluation of evidence involves the consideration of evidence adduced by parties by determining their credibility and ascribing productive value to them.”

The Learned trial Judge at page 79 of the Records observed as to the position of the 1st accused (Appellant) which is one of total denial of the commission of the crime and he stated viz-
“I shall against this background examine the evidence adduced by the prosecution in proof of the charge. Mr. Obike – Chief State Counsel in his written submission urged me to accept the unchallenged evidence of PW1, PW2 and PW4. I have painstakingly reproduced in detail the evidence of all the prosecution witnesses above …”

Counsel submitted further that, it was the testimony of the prosecution witnesses that was given primacy by the learned trial Judge. In fact, at page 80 of the records, the learned trial Judge after considering the evidence of the prosecution witnesses stated as follows:
“From the evidence of PW1, PW2 and PW4, it cannot be said that there is nothing to show that 1st accused took part in the assault on the deceased, which eventually led to his death as contended by Mr. Ezeudu.”

At page 81 of the records, the learned trial Judge further stated thus:
“In the instant case from the evidence adduced by the prosecution, the accused persons with those at large were involved or participated in the arrest, beating and setting the deceased ablaze with tyre and fuel thereby causing his death on 21/6/2005 at Umumba market square. The accused persons and those at large acted in concert. The act of beating and setting the deceased ablaze by the accused persons and those at large constitute Illegal acts done in furtherance of their agreement to murder Chidiebere.”

The learned trial Judge then concluded at page 24 of the records as follows:
“In the light of the foregoing I hold that the prosecution has discharge (sic) the burden of proof placed on it by law with respect to conspiracy in count 1 of the information.”

Counsel submitted that the trial judge was pre-occupied with the testimonies of prosecution witnesses mainly without giving due consideration to the defence. The only fact established by the testimony of the ‘PW1’ and ‘PW2’ is that the Appellant was seen at the market square where Chidiebere was killed. The Appellant himself had explained that he was at the market square and under what circumstances he was there. The Appellant had stated under oath:
“I know why I am in Court. On 21/6/2005 in the morning, I took my motor-cycle and went to work. I normally return home by 2.00p.m for my lunch after which I go back to work. On the said 21/6/2005 as  I was returning about 2.00p.m, I saw a group of people gathered at the market square – Umumba market square. As a leader of the vigilante group, I went there to find out what happened. On getting there I saw Chidiebere Onwudebe tied with rope on his hands and legs and was being beaten by the group of people. Because the crowd was much I could not do anything but ran to Chidiebere’s parents and informed them of the incident. The mother confirmed that she was called and informed that the son stole. Thereafter I returned to the market square and saw that Chidiebere had been set ablaze or burnt. At about 5.00p.m after Chidiebere was burnt, the father and brother carried, his corpse and buried.” (pages 13 – 14 of the supplementary records).

In conclusion, counsel urged the Court to hold that there has been a failure on the part of the trial Judge to properly evaluate the evidence before him which has occasioned a miscarriage of Justice and the conviction of the Appellant wrongful and ought to be set aside. He added that the trial Court failed to take into consideration the exculpatory testimonies of prosecution witnesses and that the mere presence of an accused person at the scene of crime will not incriminate him. He referred to Posu V. State (2011) 2 NWLR Pt. 1234 pg. 393 at 402.

Counsel was emphatic that the prosecution did not counter the Appellant on his evidence by way of cross-examination and it is trite law that where an adversary fails to cross-examine a witness on a material testimony, same will be taken as admitted.

He urged the Court to hold that there was a failure of the Court to evaluate the evidence before him which has occasioned a miscarriage of justice.

Issue Two
Whether failure of the prosecution to tender all the extra-judicial statements of the Appellant in evidence in Court at the trial did not render the trial unfair?

Counsel submitted that the non-finding of the extra-judicial statements made by the Appellant at various Police Stations or formation, rendered the trial unfair. He added that the position of the law is that all statements made by the accused before the police must be tendered in evidence during trial. The prosecution has no prerogative or discretion in the matter. See Ogudo v. State (2011) 18 NWLR (Pt. 1278) p. 1 at pp. 31 paras E -G; 52 -53 paras. G – A. per Rhodes- Vivour thus:
“The Appellant made a statement at Birnin Gwari Police Station, Buruku. That was the station to which he was taken after he was arrested. That statement was never tendered in Court. The prosecution is expected to tender all the statements made by the accused person to the Police whether at the time of his arrest or subsequently. In this case, the Appellant made a statement at Birnin Gwari Police Station (the first station he was taken to after he was arrested). The prosecution did not tender the statement at the trial. To deprive the Appellant standing trial for an offence which carries the death penalty the use of his statement made to the Police to my mind renders the trial unfair” (underlining mine for emphasis).”

In Ogudo v. State (supra), the prosecution failed to tender the first statement made by the accused person when he was first arrested at the first Police Station he was taken to. Allowing his appeal, the Supreme Court, held that the failure to tender that single statement in the midst of so many other statements tendered by the prosecution rendered the trial unfair.

He added that only the additional statement made by the Appellant on 13/12/2005 was tendered by the prosecution. He therefore submitted that the lapse by the prosecution in failing to tender all the statements made by the Appellant to the Police, the trial and conviction of the Appellant amounted to no more than sailing in an uncharted sea without a compass and a fortiori same cannot stand the acid test of fair hearing. He urged the Court to resolve this issue in favour of the Appellant.

Submission of the Respondent
Learned D. P. P. for the Respondent in his submission on the lone issue distilled submitted that the guilt of an accused can be established by evidence in three different ways relying on the case of Ogedengbe v. State (2014) NWLR Part 1421 at 379 para C where the Supreme Court Per PETER-ODILI, J.S.C. held:
“The guilt of an accused can be established by:
(a) a confessional statement,
(b) circumstantial evidence or
(c) evidence of eye witnesses.”
See Emeka v. The State (2001) 14 NWLR (pt. 734) 666 at 683, Igabele v. The State (2006) 2 SC (pt. 11) 61 at 69.”

Counsel then cited a plethora of cases on proof required of the prosecution such as Bolanle V. State (2009) 18 NWLR (pt. 1172) 1 at pg. 10-11.

He proceeded and examined the testimonies of the prosecution witness whom most were eye-witnesses. Counsel referred to the finding of the trial Court in its judgment at page 82 of the Record of Appeal thus:
“(1) That Chidiebere Onwudebe was murdered by being set ablaze with tyre and fuel on the 21/6/2005 at Umumba Market Square in Osisioma Ngwa Local Government Area.
(2) That the 1st and 2nd accused persons with those at large acting in concert on 21/6/2005 arrested the said Chidiebere Onwudebe from their compound, took him to Umumba Market Square where they placed tyre on his neck, poured fuel and set him ablaze thereby causing his death.
(3) That the 1st and 2nd accused persons and those at large are members of Iyiukwu Autonomous community vigilante group headed by 1st accused.
(4) That the death of Chidiebere Onwudebe was the direct consequence of the illegal acts of the 1st and 2nd accused persons and other at large.
(5) That PW1, PW2 and PW4 were eye witnesses to the events the culminated to the death of the said Chidiebere Onwudebe.
(6) That Chidiebere Onwudebe is the same as Chidiebere Ogbonna – the rather being called Onwudebe Ogbonna.
(7) That the evidence of the said PW1, PW2 and PW4 are substantial and they impressed me as truthful witnesses.
From the above findings I hold that prosecution has proved his case against the accused persons beyond reasonable doubt.”

In the case of Ndidi v. State (2007) 13 NWLR (Pt.1052) 633 at 657-658 paras G-B; (2007)5 S.C 175. Muhammad, J.S.C., stated the duty of the trial Court when coming to a decision in criminal cases especially capital offences to be:
“… in criminal trials, particularly in capital offences, the trial Court must arrive at its decision through a process of reasoning which is analytical and commands confidence. A judgment which sends a man to the gallows and awaits the hang man to execute him at any single minute, must be punctuated by Logical thinking based on cogent and admissible evidence in which the facts leading to his conviction are clearly found and legal inference carefully drawn. It can hardly be allowed to stand if founded on scraggy reasoning or a perfunctory performance. See Aniagolu, J.S.C.’s dictum in the case of Nwosu v. State (1986)4 NWLR (Pt. 35) 3-18 at 359.”

On the failure of the prosecution to tender all the extra-judicial statements of the Appellant in evidence in Court at the trial, counsel submitted that it is not compulsory for the prosecution to tender the statements made by the parties before it could have been held to have proved its case as required by law. See ORANIKA V. STATE LPELR 45481(CA).
“Recently and emphatically in AFAM OKEKE V THE STATE (2016) LPELR 40024 (CA) held per Helen Ogunwumiju, JCA in his lead judgment; ‘that the extra judicial statement of witnesses in a criminal trial is inadmissible as evidence for either the prosecution or the defence. The admissible evidence is the evidence on oath in open Court by the witness which is subject to cross-examination by the adverse party. The only time when an extra judicial statement of a party is admissible is where a party seeks to use it to contradict the evidence of a witness already given on oath; For the avoidance of doubt on what an extra-judicial statement is; at page 148 of Babalola’s Law Dictionary, “it is defined as; a statement written or made outside the Court.” See also Ajudua V. FRN (2017) 2 NWLR (pt. 1548)1.

The position of law is that before the Court can admit and make use of an extra-judicial statement made by prosecution witness or defence witness, the witnesses must have been confronted with the statement under cross-examination in order to discredit such statement. See ESANGBEDO V STATE (1989)4 NWLR (PT. 113) at 66 para F.

Counsel submitted that the lower Court rightly evaluated the evidence before it and that the Appellant has not been able to show which piece of evidence was wrongly evaluated and the non-tendering of extra-judicial statement did not render the trial unfair. And that the trial Court was right in convicting the Appellant for the offence and sentencing the Appellant to death for Conspiracy and Murder contrary to Sections 324, 319(1) of the Criminal Code, Vol 11, Cap 30 Laws of the Eastern Nigeria, 1963 and urged the Court to so hold and resolve the issue in favour of the Respondent.

Appellants Reply Brief
Learned Counsel for the Appellant in his reply brief to the submission of Counsel for the Respondent on evaluation of evidence as a mere technicality submitted that it is not an issue of technicality that can be waived and that evaluation of evidence is a matter of legal duty imposed on a Court not a discretion of the trial judge.

Counsel therefore submitted that failure of the prosecution to tender those extra-judicial statements made by the Appellant to the Police amounts to an error.

Resolution
Issue One
The complaint of the Appellant here is that of failure to evaluate the evidence of the Appellant before convicting him.

The Appellant at pages 13-14 of the supplementary record stated on oath thus:
“I know why I am in Court. On 21/6/2005 in the morning, I took my motor-cycle and went to work. I normally return home by 2.00p.m. for my lunch after which I go back to work. On the said 21/6/2005 as I was returning about 2.00p.m. I saw a group of people gathered at the market square – Umumba market square. As a leader of the vigilante group, I went there to find out what happened. On getting there I saw Chidiebere Onwudebe tied with rope on his hands and legs and was being beaten by the group of people. Because the crowd was much I could not do anything but ran to Chidiebere’s parents and informed them of the incident. The mother confirmed that she was called and informed that the son stole. Thereafter I returned to the market square and saw that Chidiebere had been set ablaze or burnt. At about 5.00p.m. after Chidiebere was burnt, the father and brother carried, his corpse and buried.”

In his judgment at page 79 of the Record of Appeal, the learned trial Judge gave a thorough consideration of the testimony of the Appellant in the following ways:
“The position of the 1st accused or DW1 is that of total denial. Mr. Ezeudu learned Counsel for the accused persons took part in the assault on the deceased which eventually led to his death.
I shall against this background examine the evidence adduced by the prosecution in proof of the charge. Mr. Obike – Chief State Counsel in his written submission urged me to accept the unchallenged evidence of PW1, PW2 and PW4. I have painstakingly reproduced in detail the evidence of all the prosecution witnesses above. It is however important at this stage to observe that out of the five prosecution witnesses – PW1, PW2, PW3 PW4 and PW5; three, PW1, PW2 and PW4 witnessed the incident at different stages, there being no evidence that they were all at the scene at the same time.”
The Judge went further at page 80 to say –
“From the evidence of PW1, PW2, PW4 it cannot be said that there is nothing to show that the 1st accused took part in the assault on the deceased, which eventually led to his death…”
And he concluded at pg. 81 – 82.
“In the instant case from the evidence adduced by the prosecution, the accused persons with those at large were involved or participated in the arrest, beating and setting the deceased ablaze with tyre and fuel thereby causing his death on 21/6/2005 at Umumba market square. The accused persons and those at large acted in concert. The act of beating and setting the deceased ablaze by the accused persons and those at large constitute Illegal acts done in furtherance of their agreement to murder Chidiebere.”

Taking into consideration the above examination of the Appellant’s statement and the other evidence by the Court, I do not agree with counsel for the Appellant that there was failure or neglect on the part of the judge in evaluating the evidence before him. After all in criminal trials the burden is on the prosecution to prove its case beyond reasonable doubt. The Appellant did not raise any defence and there was none to be canvassed for him by the Court as his case was one of total denial. I therefore find the trial judge indeed evaluated the evidence before him and arrived at the decision he made and I find no reason to interfere with same. Issue one is resolved against the Appellant.

Issue Two
On the non-tendering of all the extra-judicial statements of the Appellant in evidence, counsel for the Appellant submitted that it was only the additional statement of the Appellant of 13/12/2005 that was tendered by the prosecution. I find both Exhibits ‘C’ and ‘D’ been statements of the Appellant were received in evidence without objection. See pages 66 and 69 of the record of appeal.

Furthermore, in the light of judicial authorities that made extra-judicial statement not compulsory for the prosecution to tender before it could be held to have proved its case the submission of counsel for the Appellant in this regard cannot stand. See Afam Okeke V. The State (2016) LPELR 40024 (CA), The State V. Ogbubunjo (2001) LPELR – 3223 (SC). Accordingly issue two is equally resolved against the Appellant.

Thus, the two issues having been resolved against the Appellant, I find this appeal lacking in merit and must fail. It is hereby dismissed. The judgment of Hon. Justice I. N. Akanos delivered on 19th day of April, 2010 is hereby affirmed.

JAMES GAMBO ABUNDAGA, J.C.A.: I have read the draft of the judgment delivered by my learned brother, Ibrahim W. Jauro, JCA. I am in agreement with the reasoning and conclusion reached therein that the appeal lacks merit.

One of the issues contended by the appellant’s counsel is that the prosecution only tendered the extra-judicial statement which the appellant made on 13/12/05 in evidence, though he made several other statements at various police stations which were not tendered in evidence. Counsel contended that this failure entitles the appellant to acquittal. It Is not law that the failure to tender all the extra-judicial statements made by an accused at all events can lead to aquittal. In the case of Iliyasu v. The state (2020) LPELR – 50325 (CA), PP. 33 – 35 paras A – E, it was held that before the failure to tender at trial all extra-judicial statements made by an accused person in the course of investigation in evidence can amount to withholding evidence and thus raise a presumption in favour of the accused person there must be evidence that the accused person made a demand of the prosecution by a subpoena or otherwise for production of those and the request was turned down or refused. See also Adekoya v. The State (2010) LPELR – 3604 (CA). In this appeal, it has not been shown that the appellant applied for the production of the statements allegedly not tendered and it was refused. Therefore, this argument is unavailing to the appellant.

It is for this and the fuller reasoning in the lead judgment that I too dismiss this appeal as lacking in merit.

ADEMOLA SAMUEL BOLA, J.C.A.: I read in advance the judgment of my learned brother, IBRAHIM WAKILI JAURO, JCA. I do agree with his reasons and conclusions and I adopt them as mine.

I abide by the conclusion that this appeal lacks merit, The judgment of the lower Court is affirmed.

​I abide by the consequential orders made.

Appearances:

Chuks l. Uguru, Esq. For Appellant(s)

Ngozi J. Obioma DPP, Abia State with him E.O. Kalu Asst. Dir., E.I. Ubani SSC, and F. O. Ugwumadu SSC. For Respondent(s)