CHINEDU OKUDO v. THE STATE
(2010)LCN/3691(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 13th day of April, 2010
CA/E/27/2007
RATIO
CRIMINAL PROCEDURE: HOW DOES HEARING COMMENCE IN A CRIMINAL CASE
Hearing in a criminal case commences with the arraignment of an accused person before a court or Tribunal of competent jurisdiction. PER AYOBODE OLUJIMI LOKULO SODIPE, J.C.A.
CRIMINAL PROCEDURE: WHAT DOES ARRAIGNMENT CONSIST OF
Arraignment in turn consists of the charging of the accused person or reading over the charge to the accused person and taking his plea thereto in accordance with the provisions of the relevant law governing criminal procedure. See LUFADEJU & ANOR V. JOHNSON 2007 All FWLR Pt.371 1532 at 15558 – 1559. PER AYOBODE OLUJIMI LOKULO SODIPE, J.C.A.
PROCEDURE: PURPOSE OF ARRAIGNMENT IN A CRIMINAL TRIAL
It is settled law that arraignment is most fundamental to a criminal prosecution and that it is only a valid arraignment that can sustain a criminal trial including judgment delivered therein. See the case of LUFADEJU & ANOR V. JOHNSON (supra). It is also the law that where a court has no jurisdiction to hear or entertain a cause or matter, the proceedings therein are and remain a nullity ab initio no matter how well conducted and decided it may be, This is because jurisdiction as to defect in competence is not intrinsic but rather extrinsic to the entire adjudication. See ALINTAH & ORS V. THE FEDERAL REPUBLIC OF NIGERIA (2008) All FWLR (pt. 436) 1999 at 2010; and ORPIN V. THE STATE (2008) All FWLR (pt. 426) 2008 at 2020. PER AYOBODE OLUJIMI LOKULO SODIPE, J.C.A.
EVIDENCE: HOW SHOULD THE TRIAL COURT DETERMINE WHETHER THE LEGAL DUTY ON THE PROSECUTION HAS BEEN DISCHARGED
In order for the trial court to determine whether the legal duty imposed on the prosecution has been discharged, it must consider the totality of the evidence before it, after which it then determines whether or not the case against the accused person is made out or established beyond reasonable doubt. See ORJI V. THE STATE (2008) All FWLR (Pt. 422) 1093 at 1118. Also, the position of the law is that where it is suggested that a piece of evidence casts some doubt on the case of the prosecution, it is necessary to show, unless such is manifest or evident from the records, what aspects of the case becomes doubtful by reason of the evidence. See OYEBOLA V. THE STATE [2008] All FWLR (pt.402) 1175 at 1188-1189. PER AYOBODE OLUJIMI LOKULO SODIPE, J.C.A.
CRIMINAL LAW: OFFENCE OF ARMED ROBBERY; INGREDIENTS OF PROVING THE OFFENCE OF ROBBERY
The essential ingredients of the offence of armed robbery and each of which the Respondent is by law enjoined to prove beyond reasonable doubt are: –
- That there was a robbery;
- That the robbery was an armed robbery; and
- That the accused took part in the robbery.
See the case of OYEBOLA V. THE STATE (supra) in which the case of BOZIN V. THE STATE (1985) 2 NWLR (Pt. 8) 465 was applied. PER AYOBODE OLUJIMI LOKULO SODIPE, J.C.A.
CRIMINAL LAW: WAYS OF ESTABLISHING THE GUILT OF AN ACCUSED PERSON
The law is clear as to how the guilt of an accused person can be established.
This can be done by: (i) evidence of an eyewitness; (ii) by circumstantial evidence; and (iii) by confessional statement. See the case of NIGERIAN NAVY V. LAMBERT (2007) All FWLR (Pt.396) 574 at 585 – 586. PER AYOBODE OLUJIMI LOKULO SODIPE, J.C.A.
JURISDICTION: IMPORTANCE AND EFFECT OF JURISDICTION TO ANY PROCEEDINGS
The aspect of jurisdiction is relevant for the validity of any proceedings before a court or tribunal. See Madukolu & Ors V. Nkemdilim (1962) 1 All NLR 5S7 at 595. After all, jurisdiction is the foundation of an action and once the foundation of a structure has crumbled the structure is bound to collapse.
If the Court/Tribunal is incompetent, it would have no jurisdiction to adjudicate. Jurisdiction is a radical and crucial question of competence. A defect in competence snuffs out the life of adjudication from the Court/Tribunal. Where a Court/Tribunal lacks jurisdiction over a matter, it lacks the vine to entertain and deliberate on it. Jurisdiction therefore is the life time of every judicial proceeding before my Court/Tribunal, without which the entire proceedings, trials, findings, orders or pronouncements are rendered futile, invalid null and void ab-nitio, however brilliant they must have been conducted. See Matari v. Dangaladima (1993) 3 NWLR (Pt.281) 266.
A decision that emanates from a court/tribunal that has no jurisdiction is bound to nought. See Madinde v. Ojeyinka (1997) 4 NWLR (Pt.497) 80 at 87 para G-H. PER MOHAMMED L. TSAMIYA, J.C.A.
JUSTICES
AMIRU SANUSI Justice of The Court of Appeal of Nigeria
MOHAMMED LADAN TSAMIYA Justice of The Court of Appeal of Nigeria
AYOBODE OLUJIMI LOKULO SODIPE Justice of The Court of Appeal of Nigeria
Between
CHINEDU OKUDO Appellant(s)
AND
THE STATE Respondent(s)
AYOBODE OLUJIMI LOKULO SODIPE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment delivered on 22/1/2003 by Honourable Justice B.C. Nosike of the High Court of Justice, Enugu State in Charge No. E/14ART/98. The learned trial Judge in the judgment found the Appellant guilty of the offence of armed robbery and sentenced him to death by hanging.
The facts of the case as presented by the prosecution (hereinafter, simply referred to as “the Respondent”) are that at about 9 p.m. on 11/12/1995, some men armed with guns invaded and raided one Jide Supermarket situated at 38A, Nanka Street, New Haven, Enugu. The armed men robbed the Supermarket of some bottles of perfumes, tins of power steering oil or fluid, some knock-out fireworks and about N12,000.00. The Appellant was apprehended at the scene and later handed over to the police when they arrived at the scene of the incident. The Appellant made a confessional statement to the police in the course of their investigation into the case. After the conclusion of police investigation into the case, the Appellant and one other were charged before the Robbery and Firearms Tribunal, Enugu State, upon Information filed by the Attorney-General of the State.
The case against the Appellant and his co-accused having regard to the record of appeal first came up before the First Robbery and Firearms Tribunal, Enugu State (hereinafter, simply referred to as “the Tribunal”) on 3/5/1999 and was adjourned till 9/6/1999 due to the non-production before the Tribunal of the accused persons, On 9/6/1999 the Appellant and his co-accused were again not produced before the Tribunal and the case was adjourned till 6/7/1999 for “plea and hearing”. On 6/7/1999 the Appellant and his co-accused respectively, pleaded to the charge preferred against them.
They respectively pleaded not guilty to the said charge. The prosecution called 4 witnesses in the proof of its case and tendered the confessional statement of the Appellant and a toy gun recovered from the Appellant at the scene of the robbery. At the conclusion of the case of the prosecution, the Appellant defended himself. In his defence, the Appellant denied knowledge of the crime and claimed that he was arrested as he was walking along the street at New Haven, Upper Chime. He also alleged that he confessed to the commission of the crime due to the torture he suffered at the hands of the police. The learned trial Judge in his judgment delivered on 22/1/2003 convicted the Appellant of the offence of armed robbery and sentenced him to death by hanging. The Appellant’s co-accused was found not guilty by the learned trial Judge and accordingly discharged and acquitted.
The Appellant being dissatisfied with his conviction and sentence appealed against to the same to this Court by a Notice of Appeal dated 14/2/2003 and filed on 14/3/2003. The Notice of Appeal contains six grounds of appeal. This Notice of Appeal was superseded by the Amended Notice of Appeal dated 21/6/2007 and filed on 25/6/2007. The Amended Notice of Appeal contains four grounds of appeal and the said grounds shorn of their respective particulars read:-
“Ground No.1
The learned trial judge erred in law when he convicted the Appellant of armed robbery even though His Lordship lacked the necessarily (sic) jurisdiction to continue the hearing of the case pursuant to which the Appellant was tried and convicted.
Ground No.2
The Learned Trial Judge (sic) in Law when he convicted the Appellant even though the prosecution did not prove its case against the Appellant beyond reasonable doubt.
Ground No.3
The Learned Trial Judge erred in law when in convicting the Appellant, he admitted and relied upon his confessional statement without giving any reason for disbelieving the evidence of torture before the trial Court.
Ground No.4
The Learned Trial Judged (sic) erred in law when he convicted the Appellant and discharged and acquitted his Co-accused even though the evidence against them was the same.”
In compliance with the rules of this Court parties filed and exchanged briefs of argument. Appellant’s brief of argument dated 21/6/2007 and filed on 25/6/2007 was settled by Segun Fowowe Esq. while Respondent’s amended brief of argument dated 13/5/2009 and filed on the same day but deemed as properly filed and served on 22/6/2009 was settled by C.N. Malu, Asst. Chief Legal Officer, Ministry of Justice, Enugu State. The appeal was entertained on 9/2/2010 and Segun Fowowe and C.N. Malu, learned counsel to the Appellant and Respondent respectively, relied on and adopted the briefs of argument they filed on behalf of their respective clients as their arguments in the appeal.
Three Issues are formulated for the determination of the appeal in the Appellant’s brief of argument. They read thus:-
“1. Whether the judgment of the Tribunal delivered on 22/1/2003 was a nullity having regard to the fact that the Tribunal had been earlier dissolved on 28/5/1999 by the Tribunal (Certain Consequential Amendments etc,) Decree No. 62 of 1999.
2. Whether the prosecution proved its case beyond reasonable doubt to warrant the conviction and sentence of the Appellant by the trial court.
3. Whether the learned trial Judge was right to convict the Appellant but discharge and acquit his co-accused even though the evidence against them was the same.”
Four Issues are formulated for the determination of the appeal in the amended brief of argument of the Respondent. The Issues read thus:-
“1. Whether the Judgment of the High Court was a nullity having regard to the fact that the same Judge who sat as the Chairman of the defunct Robbery and Firearm (Special) Tribunal continued to hear the case as a High Court Judge without taking a fresh plea regard being had to Decree No. 62 of 1999?.
2. Whether there was a miscarriage of justice in the circumstances of this case?.
3. Whether the prosecution has proved its case beyond reasonable doubt?
4. Whether the learned trial Judge was right to convict the Appellant and discharge his co-accused when the evidence against them are (is) different?
The appeal will be determined upon the Issues formulated by the Appellant as the said Issues actuate the complaints of the Appellant better having regard to the grounds of appeal.
ISSUE 1
Dwelling on the Issue, learned counsel for the Appellant said that the case against the Appellant and his co-accused who was subsequently discharged and acquitted) was instituted before the Robbery and Firearms Tribunal, Enugu on 5/3/1996 when the Attorney-General of Enugu State preferred a one count information of armed robbery against the said Appellant and his co-accused. That for a period of about three years, two months and eight days after the commencement of the case but before the conclusion thereof, the Tribunals (Certain Consequential Amendments etc.) Decree No. 62 of 1999 (hereinafter to be simply referred to as Decree No. 62 of 1999) was promulgated on 28/5/1999. That from the date of the commencement of Decree No. 62 of 1999 which is 28/5/1999, the Decree pursuant to the provision of its Section 2(1), vested the jurisdiction to try the offence of armed robbery amongst others in the Federal High Court or the High Court of a State as the case may be. That the said Decree by its Section 2(2) also dissolved Robbery Tribunals set up under or pursuant to the provisions of the Armed Robbery and Firearms (Special Provisions) Act amongst others. It is the submission of learned counsel that it is manifestly clear from the provisions of Decree No. 62 of 1999 that not only does the High Court of Enugu State have jurisdiction to try armed robbery cases to the exclusion of any other tribunal from 28/5/1999 but that the Decree also dissolved the tribunals which hitherto had jurisdiction in that regard from the said date. Learned counsel said that notwithstanding the provisions of Decree No. 62 of 1999, the Tribunal before which the Appellant and his co-accused were arraigned continued to hear the case against them and delivered its judgment therein on 22/1/2003. Referring to Section 3(1) of Decree No. 62 of 1999, learned counsel submitted to the effect that the trial of the Appellant and his co-accused which legally and lawfully commenced before the Tribunal when it first sat over their charge on 3/5/1999 with a Chairman presiding ought to have started afresh or de novo upon the commencement of Decree No. 62 of 1999 on 28/5/1999 before the learned trial Judge as a Judge of the High Court and not as Chairman of the Tribunal. Learned counsel said that it was the Tribunal which stood dissolved from 28/5/1999 that took the plea of the Appellant on 6/7/1999 and illegally sat over the case on 35 occasions from 9/6/1999 to 20/1/2003. It is the submission of learned counsel that the trial of the Appellant presided over by ‘Chairman’ after the Tribunal had been dissolved is null and void and of no effect whatsoever.
That both the Ruling and judgment delivered in the case on 22/1/2003 in the circumstances, are also null and void and of no effect whatsoever, notwithstanding that the proceeding wherein they were delivered were presided over by a “Judge” for the first time in the case. Learned counsel stressed that at no time during the entire proceedings did the learned trial Judge re-commence proceedings de novo before the High Court that was vested with the jurisdiction to try the case after Decree No. 62 of 1999 came into effect. The case of Gyang v. State (2002) 33 WRN 127 at 136 was cited in aid of the submission that the trial in the instant case is a nullity. In consequence of the trial being a nullity, learned counsel urged the Court to discharge and acquit the Appellant.
Issue 1 as formulated in the Appellant’s brief of argument was dealt with under Issues 1 and 2 in the amended brief of argument of the Respondent. In the Respondent’s amended brief of argument learned Asst. Chief Legal Officer (hereinafter to be simply referred to as “Asst. C.L.O.”) did not dispute the position of the law as stated by learned counsel to the Appellant that upon the commencement of Decree No. 62 of 1999 on 28/5/1999 it is the High Court of Enugu State that had the exclusive jurisdiction to try armed robbery cases. Learned Asst. C.L.O though conceding that by virtue of Section 3(b) of Decree No. 62 of 1999, the case against the Appellant ought to have been commenced de novo upon the coming into force of the Decree, stated the crux of this appeal to be whether the trial of the Appellant could be a nullity because the trial Judge though the same person as the Chairman of the Tribunal did not take a fresh plea. It is the contention of learned Asst. C.L.O. that the omission to commence the trial of the Appellant de novo was a mere irregularity which did not go to the root of the case. In this regard, learned Asst. C.L.O. said to the effect that the essence of the abolition the Robbery Tribunal as can be discerned from the entire provisions of the Decree is the quest to accelerate proceedings. That it was in the quest to accelerate proceedings that the learned trial Judge/Ex-Chairman of the Tribunal proceeded without a fresh plea which was in compliance with Section 6 of the Decree. Learned Asst. C.L.O referred to Section 4 of Decree 62 of 1999 as still clothing the learned trial Judge with jurisdiction in respect of armed robbery cases after the dissolution of Tribunals. It was submitted that an ouster of jurisdiction is a condition which exists when a court which once had jurisdiction over a matter ceases to retain that jurisdiction and the case of Attorney-General of Lagos v. Dosumo (1989) 3 NWLR (pt.111) 552 at 567 was cited in aid. It is further submitted by learned Asst. C.L.O. that as Decree 62 of 1999 vested the judicial powers in respect of armed robbery cases in the State High Court, the personal jurisdiction of the Judge still existed during the trial and conviction of the Appellant.
It is also the submission of learned Asst. C.L.O. that the non-taking of a fresh plea before the same Judge while acting as a High Court Judge was a mere irregularity and not a nullity because this amounted to no more than a breach of the rule of practice and the case of Saude v. Abdulahi (1989) 4 NWLR (Pt.116) 387 at 425 was cited in aid. This is particularly so as the Appellant was defended by counsel throughout the trial. That the appropriate time the Appellant should have raised the objection based on procedural irregularity is at the commencement of the proceedings or when the irregularity occurred.
That the Appellant having slept on his right to object to the irregularity, he cannot now be heard to complain at the concluding state of the proceedings or on appeal and to rely on the irregularity to vitiate the proceedings. It is also submitted that the non-compliance with the rules of court as in the instant case was on the part of the court. In the circumstance, that the defect is merely administrative and cannot render subsequent proceedings a nullity.
It is the submission of learned Asst. C.L.O. that there is no miscarriage of justice in the instant case as the learned trial was right in finding the Appellant guilty given the overwhelming evidence of guilt against the Appellant who was caught in the act as well as his confessional statement. It is submitted that the Appellant is merely relying on technicality to escape from the law as he has not established any miscarriage of justice resulting from the irregularity in question (i.e. non-taking of a fresh plea before the same Judge who acted as both the Tribunal Chairman and High Court Judge). It is the submission of learned Asst. C.L.O. that the irregularity complained of by the Appellant has not occasioned him any miscarriage of justice and the cases of Udeh v. State (2001) 2 ACLR page 356; Durwode v. State 2 ACLR 503 at 519 were cited on the need for the Appellant to have established the miscarriage of justice he has suffered as a result of the irregularity complained of. In the same vein the case of Uwaekweghnya v, State 4 ACLR 1 at page 15 was cited in aid of the submission that an accused person who acquiesced to an irregular procedure that did not lead to a miscarriage of justice cannot complain on the procedure on appeal.
It is clear from a painstaking scrutiny of the record of appeal before the Court that Han. Justice B.C. Nwosike sat or presided over the case involving the Appellant and his co-accused on all the dates it came up from 3/5/1999 – 20/1/2003 (both dates inclusive) as Chairman of the Tribunal and exercised the judicial powers vested in him as such Chairman. The learned trial Judge in signing off at the end of the proceeding on each of the occasions consistently described himself as Chairman of the Tribunal, and not as Judge of the High Court.”
Decree No. 62 of 1999 came into force on 28/5/1999. It is indisputable in my considered view that by virtue of the provisions of Section 2(1) and (2) of the Decree, the jurisdiction to try or entertain armed robbery cases was not only vested in the High Court of Enugu State from 28/5/1999 but also that the Robbery Tribunals established by the State under and by virtue of the Robbery and firearms (Special Provisions) Act, by force of law stood dissolved on the said 28/5/1999. It is therefore clear that with effect from 28/5/1999, whether or not it pleased the members of the Tribunal and the Chairman, or the Chairman sitting alone, or persons charged before the Tribunal, or indeed anyone having any matter before the Tribunal, the Tribunal ceased to exist as from 28/5/1999 by force of law.
As earlier stated the case involving the Appellant and his co-accused first came up before the Tribunal on 3/5/1999 but had to be adjourned till 9/6/1999 as the accused persons were not produced before the Tribunal on the said 3/5/1999. It is my considered view that it is a complete misapprehension of when hearing in a criminal case starts, to argue that the case against the Appellant and his co-accused was part-heard as at 3/5/1999 simply because it came up before the Tribunal on the said date. Hearing in a criminal case commences with the arraignment of an accused person before a court or Tribunal of competent jurisdiction. Arraignment in turn consists of the charging of the accused person or reading over the charge to the accused person and taking his plea thereto in accordance with the provisions of the relevant law governing criminal procedure. See LUFADEJU & ANOR V. JOHNSON 2007 All FWLR Pt.371 1532 at 15558 – 1559. This case therefore could only have been part-heard before the Tribunal if the Appellant and his co-accused had been arraigned before the Tribunal and their pleas taken on 3/5/1999 when it first came up. As already stated, the pleas of the Appellant and his co-accused were taken on 6/7/1999 before the learned trial Judge presiding over the case as the Chairman of the Tribunal entertaining the case. The Tribunal as at 6/7/1999 no longer had any existence in law, the same having been dissolved by force of law on 28/5/1999. It is therefore clear that in law, the arraignment of the Appellant arid his co-accused took place before a Tribunal that had no legal existence cum jurisdiction to entertain the case and which was also presided over by a Judge of the High Court as Chairman.
Learned Asst. C.L.O. has tenaciously argued that the non-taking of the plea of the Appellant afresh after the coming into force of Decree No. 62 of 1999 is not only an irregularity but that the Appellant has not shown what miscarriage of justice the irregularity has occasioned him.
Learned Asst. C.L.O. in my considered view would appear to have completely missed the situation in this case and which as earlier said is that the arraignment of the Appellant and his co-accused was before a non-existent Tribunal that lacked the jurisdiction to entertain the case and which was equally presided over by a Judge of the High Court as the Chairman.
By the provision of Section 3(1)(b) of Decree No. 62 of 1999, it is a part-heard armed robbery case that the trial Judge being the Chairman of the Tribunal is to try de novo as a Judge of the High Court. The case against the Appellant and his co-accused was not part heard as at 28/5/1999 when Decree No. 62 of 1999 came into force; the question of the case starting de novo with the taking of the plea of the Appellant afresh therefore has no basis. What the learned trial Judge ought to have done on subsequent dates the case came up after 3/5/1999 particularly on 6/7/1999 when the pleas of the Appellant and his co-accused were taken, was to have entertained the same as a Judge of the High Court and not as a Judge of the High Court presiding over the Tribunal as a Chairman. To the extent therefore that the record of appeal glaringly shows that the Appellant was on 6/7/1999 arraigned before the Tribunal presided over by the trial Judge as a Chairman, the arraignment of the Appellant in the circumstances cannot be said to be proper or valid in law.
In other words there was no proper and valid arraignment of the Appellant on 6/7/1999, the same having been undertaken before a Tribunal that had been divested of the jurisdiction to entertain armed robbery case and which Tribunal was equally presided over by a High Court Judge as the Chairman.
It is settled law that arraignment is most fundamental to a criminal prosecution and that it is only a valid arraignment that can sustain a criminal trial including judgment delivered therein. See the case of LUFADEJU & ANOR V. JOHNSON (supra). It is also the law that where a court has no jurisdiction to hear or entertain a cause or matter, the proceedings therein are and remain a nullity ab initio no matter how well conducted and decided it may be, This is because jurisdiction as to defect in competence is not intrinsic but rather extrinsic to the entire adjudication. See ALINTAH & ORS V. THE FEDERAL REPUBLIC OF NIGERIA (2008) All FWLR (pt. 436) 1999 at 2010; and ORPIN V. THE STATE (2008) All FWLR (pt. 426) 2008 at 2020.
In the light of all that has been said in relation to this Issue, the same is accordingly resolved in favour of the Appellant. The resolution of Issue 1 in favour of the Appellant ordinarily should put an end to this appeal; but as this Court is an intermediate appellate court and is enjoined to consider and make a pronouncement on all Issues submitted for its consideration by parties, I will now proceed to consider the other Issues formulated by the Appellant for the determination of the appeal.
ISSUE 2
Dwelling on this Issue, learned counsel for the Appellant submitted that the Respondent did not prove its case that the Appellant committed the offence of armed robbery beyond reasonable doubt given the contradictions and inconsistencies which a painstaking evaluation of the facts of the case reveals. Learned counsel said that the contradictions and inconsistencies are as highlighted in a total of 11 paragraphs constituting the combined particulars of grounds 2 and 3 of the grounds of appeal. Learned counsel specifically dwelled upon the contradiction in the evidence of PWs 1, 2 and 3 that only the Appellant was apprehended by them at the scene and subsequently handed over to the police; while PW4 the police officer to whom the Appellant was handed over testified that both the Appellant and his co-accused were caught at the scene and handed over to him. Learned counsel said that ordinarily there is no room for inconsistency or contradiction in the evidence of a factual event or occurrence as to whether one or two human beings were arrested and handed over to the police; and as to whether or not the police received one or two persons from those who initially carried out the arrest. It is the submission of learned counsel that to the extent that there is conflict in the readily verifiable evidence as to how many robbers were caught and handed over to the police; doubt has been raised in the case of the prosecution as to whether any robber at all was caught at the scene. That this is more so as the Appellant testified to the effect that he was not arrested at the scene but along the road. The case of Gabriel v. The State (1989) 5 NWLR (Pt.122) 457 at 468 was cited as to the meaning of contradiction.
Other instances of contradictions which were not resolved in the judgment of the learned trial Judge as highlighted by learned counsel for the Appellant include (i) the contradiction in the evidence of PWs 1 and 2 in which they respectively said that the robbers were three in number while PW 1 in his further testimony on 29/3/2000 said that the robbers were four in number; (ii) whether or not a gun was shot inside or outside the Supermarket as disclosed in the evidence of PW 2 and PW1 respectively; and (iii) whether or not it was a toy gun that the robbers possessed or it was knock out that was blown at the scene. Learned counsel submitted that these unresolved facts have left a lingering doubt as to whether or not the gun used at the scene was a real one or a toy gun. It is the further submission of learned counsel that the doubt in this respect ought to have been resolved in favour of the Appellant. This is because the Appellant could not be guilty of armed robbery if it was a toy gun that was used at the scene. In aid of the submission, reference was made to the definition “firearms or offensive weapon” as envisaged by Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap. 398 LFN, 1990.
Learned counsel also dwelled on the statement of the Appellant admitted at his trial. Notwithstanding that learned counsel stated that the position of the law is that non-observance of Judges’ Rules is not necessarily fatal to the admissibility of statements made in breach thereof, and cited in aid the case of Igago v. The State (1999) 4 NWLR (Pt. 637) 1 at 17, he still submitted that the refusal of PW 4 to take the Appellant and his statement before a superior police officer gave credence to the evidence of the Appellant that his statement was extracted or obtained under duress. Learned counsel accused the lower court of failing to consider the evidence of the Appellant that he was tortured to make the confessional statement. He said that the stab wounds on the Appellant were inconsistent with the evidence of PW 4 that the Appellant was not tortured. Learned counsel submitted to the effect that all the contradictions/inconsistencies highlighted by him, have derogated from the standard of “proof beyond reasonable doubt” imposed by law on the Respondent and that the doubts which persisted in the case ought to have been resolved in favour of the Appellant. The cases of Ankwa v. The State (1969) 1 All NLR 129; and Onafowokan v. The State (1987) 3 NWLR (Pt.61) 538 at 546 – 547 amongst others were cited in aid.
Dwelling on the Issue as to whether or not the Respondent proved its case beyond reasonable doubt, learned Asst. C.L.O. set out the ingredients of the offence of armed robbery which must be established beyond reasonable doubt in order to sustain a conviction and cited the cases of Bello v. State (2007) 10 NWLR (pt. 1043) 588-589; and Oguntade v. State 12 NWLR (pt. 1049) 617 at 635 in aid. Stating that the guilt of an accused person can be established by (i) the evidence of an eyewitness; (ii) circumstantial evidence; and (iii) by confessional statement; learned Asst. C.L.O. submitted to the effect that the evidence adduced by the Respondent established the offence of armed robbery against the Appellant beyond reasonable doubt. It is the further submission of learned Asst. C.L.O. that proof beyond reasonable doubt does not mean proof beyond a shadow of doubt and the case of Obiakor v. The State (2002) 10 NWLR (Pt.776) at page 612 was cited in aid. Learned Asst. C.L.O. also submitted that a contradiction or inconsistency in the evidence of the prosecution’s witnesses that does not go to the substance of the case cannot be fatal to the prosecution’s case and the cases of Yaki v. State 11 MJSC 1 at 15; and Ogunlana v. State (2003) 3 ACLR 445 at 465 were cited in aid. It is the further submission of learned Asst. C.L.O. (i) that the number of robbers arrested at the scene is not substantial or fundamental to the case of the prosecution but that the material issue is whether the Appellant was amongst those that robbed Jide Supermarket. In the same vein it was submitted by learned Asst. C.L.O. that the fundamental issue in the case was not whether the gun was fired in the shop but whether the Appellant and the other robbers while armed with guns and other offensive weapons robbed the Jide Supermarket. The principle of common intention as defined in the Criminal Code and the cases of Adio v. State (2005) 4ACLR and Oyahkire v. State of MJSC as well as the provisions of Section 1(2)(a) and (b) of the Robbery and Firearms Act Cap. R 11 LFN 2004 were relied upon. Learned Asst. C.L.O citing the case of Egbghonome v. State 2ACLR at page 262 submitted that the fact that the Appellant was not taken before a superior police officer to attest to his statement does not vitiate the judgment of the trial court.
It is indeed settled law that it is not every inconsistency or contradiction in the case of the prosecution that will derogate from the standard of proof beyond reasonable doubt imposed on it by law. Proof beyond reasonable doubt is not tantamount to proof beyond all shadow of doubt or to the hilt. The duty of the prosecution is to prove the charge against an accused person by calling or producing credible admissible evidence to establish the ingredients of the offence with the accused person stands charged. In order for the trial court to determine whether the legal duty imposed on the prosecution has been discharged, it must consider the totality of the evidence before it, after which it then determines whether or not the case against the accused person is made out or established beyond reasonable doubt. See ORJI V. THE STATE (2008) All FWLR (Pt. 422) 1093 at 1118. Also, the position of the law is that where it is suggested that a piece of evidence casts some doubt on the case of the prosecution, it is necessary to show, unless such is manifest or evident from the records, what aspects of the case becomes doubtful by reason of the evidence. See OYEBOLA V. THE STATE [2008] All FWLR (pt.402) 1175 at 1188-1189.
The Appellant was tried and convicted for the offence of armed robbery by the learned trial Judge. The essential ingredients of the offence of armed robbery and each of which the Respondent is by law enjoined to prove beyond reasonable doubt are: –
1. That there was a robbery;
2. That the robbery was an armed robbery; and
3. That the accused took part in the robbery.
See the case of OYEBOLA V. THE STATE (supra) in which the case of BOZIN V. THE STATE (1985) 2 NWLR (Pt. 8) 465 was applied.
It is obvious from the contradictions or inconsistencies in the evidence led by the Respondent as highlighted by learned counsel for the Appellant, that he is in effect alleging that the Respondent did not prove beyond reasonable doubt that there was an armed robbery at Jide Supermarket on 11/12/1995 and also that the Appellant was one of the robbers or that the Appellant participated in the robbery.
The provisions of the Robbery and Firearms (Special Provisions) Act under which the Appellant and his co-accused were charged in Section 1 (1) provide the punishment for the offence of robbery. The Act in Section 1(2)(a) and (b) provides for the circumstances when robbery metamorphoses into armed robbery. The circumstances are (i) when any person who commits the offence of robbery is armed with any firearms or any other offensive weapon or is in company with any person so armed; and/or (ii) if the person who commits robbery at or immediately before or immediately after the time of the robbery wounds or uses any personal violence to any person. The punishment prescribed for the offence of armed robbery is death sentence.
Having regard to the provisions of the law that provide for the situations when robbery metamorphoses into armed robbery, it is obvious that it is not required of the prosecution when it anchors its case of armed robbery on possession of firearms by an accused person, to produce evidence of the use of the firearm by its having been fired at the time of the commission of the robbery. It is sufficient if the prosecution establishes that the accused person was armed with a firearm or was in the company of any person so armed at the time of the commission of the offence.
At the trial before the trial Judge, the Respondent adduced evidence through eye witnesses that Jide Supermarket was on 11/12/1995 invaded by some robbers numbering three or four, PW1 in his evidence was definite that the Appellant who was among the robbers pulled a gun on him. Under cross examination y learned counsel for the 2nd accused (now discharged and acquitted), PW1 equally disclosed that the robbers on leaving the Supermarket shot into the air and this made the people around to run away for their dear lives. PW 2 also gave evidence to the effect that the three men that entered into the Supermarket (one of them being the Appellant who was apprehended at the scene) at a point in time pulled out their pistols and later demanded for money. The evidence of these two witnesses was not successfully challenged under cross-examination. It was not shown that the witnesses could not know a gun/pistol if they saw one and/or that they were incapable of knowing the sound of a gunshot. It is therefore clear that there was nothing before the trial Judge that rendered the evidence of these witnesses that the robbers who invaded the Supermarket were armed with guns/pistol incredible, All the eyewitnesses to the robbery were not only emphatic that the Appellant was one of the robbers that invaded and raided Jide Supermarket but also that he was apprehended as he was about to escape with the other robbers that succeeded in escaping. It is clear as crystal from the evidence adduced by the Respondent that it was established that the robbers who invaded and raided Jide Supermarket were at least armed with guns/pistols and that the Appellant was one of them. This clearly makes the Appellant to have at least been in company with the other robbers at the time of the commission of the offence. The fact that it is a toy gun that was recovered from the Appellant does not derogate from the evidence that the other robbers were armed with guns/pistols. There is no principle of law requiring the prosecution to tender in evidence the weapon used in a robbery in order to establish the guilt of the accused person. See OLAYINKA V. THE STATE (2007) All FWLR (pt. 373) 163 at 173 – 174. What the evidence adduced by the Respondent in the instant case disclosed is that the robbers that escaped and in whose company the Appellant was at the time of the commission of the armed robbery at Jide Supermarket escaped with their own guns/pistols. This being the situation, the Respondent can hardly be expected to tender what was never recovered.
The fact that the gun recovered from the Appellant was later found to be a toy gun however does not derogate from the fact that the robbers that escaped were armed with guns/pistols as testified to by PW2. It would have been totally different if the case of the Respondent was that only the Appellant was armed with a gun at the time of the commission of the offence and the gun was later discovered to be a toy gun.
From all that has been said before now, the learned trial Judge definitely had credible evidence before him that not only established the fact that the robbery at Jide Supermarket on 11/12/1995 was an armed robbers but also cogent evidence establishing that the Appellant was one of the robbers and that he actively participated in the robbery.
Accordingly I do not find any of the contradictions or inconsistencies highlighted by learned counsel for the Appellant to derogate from the evidence adduced by the Respondent as shown above and which established beyond reasonable doubt (i) that the robbery at Jide Supermarket on 11/12/1995 was an armed robbery; and (ii) that the Appellant participated in the robbery. Issue 2 is accordingly resolved against the Appellant.
ISSUE 3
Dwelling on this Issue learned counsel for the Appellant said that the prosecution’s case against the Appellant and his co-accused was based on their respective confessional statements, thereby making the evidence led in the proof of the charge against the Appellant and his co-accused person to be the same.
He further said that both the Appellant and his co-accused testified at the trial that their respective confessional statements were extracted from them by the police under torture. It is the submission of learned counsel that the learned trial Judge nevertheless convicted the Appellant and acquitted the co-accused on the ground that the evidence fixing the co-accused to the scene was contradictory.
The case of Ebri v. State (2006) WRN 1 (SC) was cited in aid of the submission that the Appellant ought to have been acquitted as the evidence against him and his co-accused was the same.
Dwelling on this Issue, learned Asst. C.L.O. in the main submitted that the evidence against the Appellant to the extent that it overwhelmingly fixed him at the scene of the crime and which evidence was corroborated by the Appellant’s confessional statement was not the same as the evidence against the co-accused. In the circumstances, that the lower court was right in convicting Appellant; while it discharged and acquitted the co-accused. The case of Idiok v. State (2008) 6 MJSC 36 at 61 was cited in aid.
I am of the considered view that it is clearly a complete misapprehension of the evidence adduced by the Respondent in the proof of its case against the Appellant for learned counsel for the Appellant to argue that the case of the Respondent against the Appellant and his co-accused was based on their respective confessional statements. Learned Asst. C.L.O. in the amended brief of argument of the Respondent clearly brought out the fact that the evidence establishing the guilt of the Appellant in respect of the armed robbery for which he was charged consists of evidence of eyewitnesses and that his confessional statement was only used as corroboration.
The law is clear as to how the guilt of an accused person can be established.
This can be done by: (i) evidence of an eyewitness; (ii) by circumstantial evidence; and (iii) by confessional statement. See the case of NIGERIAN NAVY V. LAMBERT (2007) All FWLR (Pt.396) 574 at 585 – 586. It is not in doubt that the evidence adduced by the Respondent through the eyewitnesses to the robbery at Jide Supermarket on 11/12/1995 on its own sufficiently established the case of armed robbery against the Appellant without his confessional statement. This being the position, the evidence against the Appellant and the co-accused was clearly not based solely on his confessional statement. The contention of learned counsel for the Appellant that the evidence against the Appellant and the co-accused is the same; and that the Appellant should have been discharged and acquitted like his co-accused in the circumstances has no evidential or factual basis. This Issue is accordingly resolved against the Appellant.
Having regard to the resolution of Issues 2 and 3 against the Appellant, it is obvious that his conviction for the offence of armed robbery by the learned trail Judge is impeccable. However, this would appear to be of no moment given the earlier resolution of Issue 1 in favour of the Appellant.
In the Appellant’s brief of argument, learned counsel urged this Court to discharge and acquit the Appellant upon the success of Issue 1. It would appear that there is no jurisdiction in this Court to discharge and acquit the Appellant as urged. The resolution of Issue 1 is that the proceedings and judgment in this case was predicated or founded upon an improper and invalid arraignment. It therefore follows that there has been no lawful trial of the Appellant. It would therefore be illogical to make an order which assumes that the Appellant has been lawfully absolved from criminal liability for his action. See THE STATE V. YAMUSISSIKA (1974) 6 SC 49; and ORPIN V. THE STATE (supra) at page 2021. In the circumstances, the only and proper order the Court can make given the success of Issue 1, is an order nullifying and setting aside the proceedings and judgment delivered in this case on 22/1/2003 and consequently discharging the Appellant. It is left for the Respondent to decide if it is worth it, to still proceed against the Appellant.
In conclusion, the instant appeal is meritorious to insofar as Issue 1 has succeeded. Accordingly, the proceedings and judgment delivered in this case Charge No. E/14ART/98 on 22/1/2003 are set aside. The Appellant is consequently discharged.
AMIRU SANUSI J.C.A.: I had the advantage of reading in advance the judgment just delivered by my learned brother Lokulo-Sodipe JCA. I entirely agree with the 1999 Constitution of the Federal Republic of Nigeria on 29th day of May 1999, all trials or proceedings under the Robbery and Fire Arms Decree abate.
The purported trials or proceedings conducted by the learned trial Judge is therefore a nullity. The appellant had, legally speaking, not undergone any valid trial at all. The appellant is therefore simply entitled to discharge order only and NOT acquittal order.
I abide by the consequential order made in the lead judgment.
MOHAMMED L. TSAMIYA, J.C.A.: I have had the advantage of reading in draft the lead judgment of my learned brother LOKULO-SODIPE, JCA, I agree with it. I also want to add that by issue 1 of the Appellant’s issues, the relevant facts are that at the time material to the case, the tribunal saddled with the trials of Armed Robbery was abolished via Decree No.62 of 1999. In other words, from the Date of the commencement of Decree No.62 of 1999 which is 28/5/1999, the said Decree pursuant to the provision of its Section 2(1), vested the jurisdiction to try offence Robbery amongst other things in either Federal State High Courts. That by its section 2(2) also dissolved Robbery Tribunal set up to try such offences. Notwithstanding the provisions of the said Decree dissolving the Armed robbery Tribunals, the Tribunal before which the Appellant and his co-accused were arraigned, continued to hear the case against them and delivered its judgment on 22/1/2003 without starting the trial de-novo upon the commencement of the said Decree. The case now on appeal both originated from, continued and finally determined by the said abolished tribunal. The pith of the argument of the counsel is that, jurisdiction to hear the case of Armed robbery was dissolved by virtue of section 2(2) of the said Decree No. 62 of 1999, and consequently, the 1st Robbery and Firearms tribunal, Enugu State wrongly assumed jurisdiction to hear the instant case and as such its decision on the case is a nullity.
The aspect of jurisdiction is relevant for the validity of any proceedings before a court or tribunal. See Madukolu & Ors V. Nkemdilim (1962) 1 All NLR 5S7 at 595. After all, jurisdiction is the foundation of an action and once the foundation of a structure has crumbled the structure is bound to collapse.
If the Court/Tribunal is incompetent, it would have no jurisdiction to adjudicate. Jurisdiction is a radical and crucial question of competence. A defect in competence snuffs out the life of adjudication from the Court/Tribunal. Where a Court/Tribunal lacks jurisdiction over a matter, it lacks the vine to entertain and deliberate on it. Jurisdiction therefore is the life time of every judicial proceeding before my Court/Tribunal, without which the entire proceedings, trials, findings, orders or pronouncements are rendered futile, invalid null and void ab-nitio, however brilliant they must have been conducted. See Matari v. Dangaladima (1993) 3 NWLR (Pt.281) 266.
A decision that emanates from a court/tribunal that has no jurisdiction is bound to nought. See Madinde v. Ojeyinka (1997) 4 NWLR (Pt.497) 80 at 87 para G-H.
My learned brother, LOKULO-SODIPE, JCA wasted no time in his reasoning and conclusion that the issue of the challenge to the jurisdiction of the court was primus to any other matter. The conclusion of my learned brother in all the remaining issues were impeccable given me no option than to adopt the conclusions as my own.
Appearances
Segun FowoweFor Appellant
AND
C.N. Malu (Mrs.) Asst. Chief Legal Officer, Ministry of Justice, Enugu State with U.J. Chime Legal Officer, Ministry of Justice, Enugu StateFor Respondent
