CLETUS OKWUCHUKWU ICHE v. THE STATE
(2013)LCN/6179(CA)
In The Court of Appeal of Nigeria
On Friday, the 10th day of May, 2013
CA/PH/541/08
JUSTICES
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
Between
CLETUS OKWUCHUKWU ICHE Appellant(s)
AND
THE STATE Respondent(s)
RATIO
THE FUNDAMENTAL RIGHT TO A FAIR HEARING
By Section 36 (4) of the 1999 Constitution of the Federal Republic of Nigeria 1999 (as amended), wherever any person is charged with a criminal offence, he shall unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable time by a court or tribunal. The expression “fair hearing” in Section 36 (4) of the 1999 Constitution means the trial of a case or conduct of proceedings according to all relevant rules for ensuring justice for all the parties. This right lies in the procedure followed in the determination of a case and not in the correctness of the decision arrived at in the case. See SALU vs. EGEIBON (1994) 6 NLWR (Pt.348) 23; OTAPO vs. SUNMONU (1983) 2 NWLR (Pt.58) 587. Right to fair hearing as enshrined in Section 36 of the 1999 Constitution is so fundamental to the adjudicatory process to the extent that a breach thereof leads to the nullification of any such proceedings. Where there is a breach of fundamental right to fair hearing, it does not lie in the mouth of a party in breach to canvass that there was no miscarriage of justice arising from the breach. The breach of fundamental right being fundamental overrides and overtakes the common law principle of “no miscarriage of justice”. This is so because, by the breach, the doctrine of technicality is gone as the adherence to technicality is receptive of the concept of miscarriage of justice. In other words, a breach of a mandatory constitutional provision is more than a mere technicality, it is fundamental. See EDIBO vs. STATE (2007) 13 NWLR (Pt.1051) 306; N.A.B. LTD vs. BARRI ENGINEERING NIG. LTD. (1995) 8 NWLR (Pt.413) 257; SEYO vs. TUMFURE (2007) 8 NWLR (Pt.1035) 45; ZIIDECH vs. R.S.C.S.C. (2007) 3 NWLR (Pt.1022) 554; NTUKUDEM vs. OKO (1986) 5 NWLR (Pt.45) 909; UNTHMB vs. NNOLI (1994) 8 NWLR (Pt.363) 376; BAMGBOYE vs. UNIVERSITY OF ILORIN (1999) 10 NWLR (Pt.622) 290.
A summary of all I have stated above is that the consequence of a breach of the rules of natural justice as enshrines in Section 36 of the 1999 Constitution of the Federal Republic of Nigeria is that the decision reached thereby will be a nullity and liable to be set aside. See ADIGUN vs. A.G. OYO STATE (1987) 1 NWLR (Pt.53) 678; OLATUNBOSUN vs. NISER (1988) 3 NWLR (Pt.80) 25; FCSC vs. LAOYE (1989) 2 NWLR (Pt.106) 652. PER OKORO, J.C.A.
WHETHER OR NOT WHERE A COURT OF COMPETENT JURISDICTION HAS GIVEN JUDGMENT OR MADE AN ORDER, SUCH JUDGMENT OR ORDER REMAINS VALID AND EFFECTIVE UNLESS AND UNTIL IT IS SET ASIDE BY AN APPELLATE COURT OR BY THE LOWER COURT ITSELF IF IT FINDS THAT IT HAD NO JURISDICTION TO GIVE THE JUDGMENT OR MAKE THE ORDER
It is now well settled that where a court of competent jurisdiction has given judgment or made an order, such judgment or order remains valid and effective unless and until it is set aside by an appellate court or by the lower court itself if it finds that it had no jurisdiction to give the judgment or make the order. See OGUEZE vs. OJIAKO (1962) 1 SCNLR 112; MELIFONWU vs. EGBUYI (1982) 9 SC 145; AJAO vs. ALAO (1986) 5 NWLR (Pt.45) 802. In WITT & BUSH LTD. vs. DALE POWER SYSTEMS PLC (2007) 17 NWLR (Pt. 1062) 1, it was held by the Supreme Court that in the absence of statutory authority or where the judgment or order is a nullity, one judge has no power to set aside or vary the order of another Judge of concurrent and co-ordinate jurisdiction. That the rationale or reason for this position is that there is only one High Court in a State. In other words, a court of co-ordinate jurisdiction has no jurisdiction to set aside the judgment of another court of similar jurisdiction. But where an order of a court is a nullity, such an order could be set aside by another court of similar jurisdiction without much ado. See WIMPEY NIG. LTD vs. BALOGUN (1986) 3 NWLR (Pt.28) 324; ORTHOPAEDIC HOSPITAL MANAGEMENT BOARD vs. B. B. APUGO & SONS LTD. (1990) 1 NWLR (Pt.129) 652; SKENCONSULT (NIG.) LTD vs. UKEY (1981) 1 SC.6; UKPAI vs. OKORO (1983) 2 SCNLR 380. PER OKORO, J.C.A.
JOHN INYANG OKORO, J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment of the Imo State High Court holden at Mgbidi in Charge No. HOU/8C/2001 delivered on the 3rd day of April, 2008 by Hon. Justice Nonyerem Okoronkwo wherein the appellant was convicted of the murder of one Godwin Ezike and sentenced to death by hanging.
The appellant was charged with murder contrary to Section 319 (1) of the Criminal Code Act, Cap. 30 Vol. II Laws of Eastern Nigeria 1963 as applicable to Imo State. The prosecution called a total of five witnesses and tendered exhibits in proof of the charge. The appellant testified in his defence and denied the charge. In a considered judgment delivered on 3rd April, 2008, the learned trial judge found the appellant guilty of murder and accordingly sentenced him to death. The facts of the case are as hereunder summarized.
Sometime in April, 2000, one Sunday Iche, a brother of the appellant died in Lagos. The circumstances that led to his death were not given but his corpse was brought home to Ngwulobi Village, Akuma, Oru East Local Government Areas of Imo State and was buried on 18th April, 2000. Believing that the said Sunday Iche did not die a natural death and that he was poisoned, there was so much animosity in the bereaved family such that it was thought that their relation Godwin Ezike who also lived in Lagos must have been responsible for the death of the said Sunday Iche by poisoning. After the burial of Sunday Iche, the grief and animosity over his death persisted.
On 20th April, 2000, Godwin Ezike, the deceased, his wife Rose Ezike and their last infant son Ebuka visited their home town which is the same as that of the appellant presumably to join in the funeral rites of Sunday Iche who had been buried on 18/4/2000. They were advised to refrain from going to the funeral of late Sunday Iche because the family of Sunday Iche believed that Godwin Ezike was responsible for the death of their son. In view of this caution, Godwin Ezike and his wife refrained from visiting the family of late Sunday Iche whose father Joseph Iche was said to be threatening death for Godwin Ezike if he had returned with the corpse of Sunday Iche.
On the following day being the 21st day of April, 2000, at about 11a.m., Godwin Ezike, his wife Rose Ezike ad their seven year old son Ebuka strolled over to the village market Afor Awaka. They stopped by the shop of one Anna Nwokeji and bought some mangoes. As Godwin Ezike was paying for the fruits, the appellant and another person Ada Iche who was also charged along with him, emerged and a quarrel ensued about the cause of death of Sunday Iche who was the elder brother of the appellant and Ada. The quarrel led to a scuffle between the appellant and the deceased Godwin Ezike. In the process, the appellant stabbed the deceased with a pen knife on his upper back chest and another one on the front chest. Godwin Ezike slumped and died there in the presence of his wife and seven year old son. When Felix Odumgbe, a senior brother of the deceased Godwin heard about what happened, he immediately headed towards Afor Itutu Market. He testified as PW2. On his way he met the appellant and his sister and one of their younger one Pontain Iche as they were boasting that they had accomplished their mission as instructed. PW4 and PW5 were police officers who investigated the matter while PW3 was the medical doctor who tendered the autopsy report conducted by one Dr. Jonathan Osuji.
The appellant, in his testimony said that he was returning from school on the fateful date and met the deceased near Afor Market. According to him, he thanked the deceased for killing his brother. He stated that the deceased chased him, caught him and started beating him. He further stated that the deceased picked a bamboo to hit him but he struggled to wriggle himself from the grip of the deceased. He stated that both of them fell down and as they fell on the ground the deceased fell on the bamboo and got wounded. He then ran to their house.
At the conclusion of evidence by both the prosecution and the defence, the learned trial judge preferred the evidence of the prosecution over and above that of the defence. The appellant was convicted of murder and sentenced to death.
Dissatisfied with the said conviction and sentence, the appellant filed notice of appeal on 21st April, 2008. The said notice is also dated 21st April, 2008. Ten grounds of appeal are raised in the notice. Thereafter the appellant filed 16 additional grounds of appeal on 16/11/09 out of which the learned counsel for the appellant Chief E. C. Onumajuru formulated four issues for the determination of this appeal. K. A. Leweanya (Mrs.) Principal State Counsel who settled the brief of the respondent distilled five issues as listed in her brief of argument. When this appeal was heard on 18th February, 2012 both counsel adopted and relied on their respective briefs.
The four issues decoded by the appellant are as follows:
“(i) Whether the lower court infringed upon the appellant’s fundamental human right to fair hearing in the determination of the matter before the lower court. (Distilled from Ground of Appeal No. 2) in the Notice of Appeal and Grounds of Appeal Nos. 12, 13, 15, 16, 17, 18 & 25 in the Notice of Additional grounds of appeal.
ii) Whether the lower court was right when in its ruling on the trial within trial, it admitted the alleged confessional statements of the appellant as Exhibit C & D respectively? Distilled from Grounds of Appeal Nos. 7 and 8 in the Notice of Appeal and Ground of Appeal No. 19 in the Notice of Additional grounds of appeal.
iii) Whether the lower court was right when it re-opened the issue of the age of the appellant and held that the appellant was not under the age of 17 years at the time of the commission of the alleged offence? Distilled from Grounds of Appeal Nos. 1 & 3 in the Notice of Appeal and from Grounds of Appeal Nos. 11 & 12 of the Notice of Additional Grounds of Appeal.
iv) Whether the lower court was justified in convicting the appellant for the murder of Godwin Ezike and consequently sentencing the appellant to death? Distilled from Grounds of Appeal Nos. 4, 5, 9 & 10 in the Notice of Appeal and Grounds of Appeal Nos. 20, 22, 23 & 24 in the Notice of Additional Grounds of Appeal.”
On the other hand, the five issues formulated by learned Principal State Counsel, Mrs. Leweanya, K. A. are hereunder reproduced as:
“1. Whether the trial court infringed on the appellant’s right to fair hearing in the determination of the matter before it.
2. Whether the learned trial judge was right in admitting the confessional statements of the appellant as Exhibits C and D after the trial within trial.
3. Whether the lower court was right in reopening and holding that the appellant had attained the age of 17 years at the time of committing the offence.
4. Whether the trial court was right in holding that the case against the appellant was proved beyond reasonable doubt.
5. Considering the state of evidence, whether or not the learned trial judge adequately considered the defence of provocation and self defence raised in Exhibit F before reaching the decision of conviction of the appellant for murder.”
The appellant who is appealing against the judgment of the learned trial judge submitted four issues for the determination of this appeal. The respondent who is not fighting the judgment of the court below has distilled five issues. Is this a case of crying more than the bereaved? Be that as it may, I shall determine this appeal based on the four issues distilled by the appellant.
On the first issue, the learned counsel for the appellant referred to Section 36 of the 1999 Constitution of the Federal Republic of Nigeria and the case of OCHE vs. STATE (2007) 5 NWLR (Pt.1027) page 214 and submitted that all parties to any pending legal proceedings are entitled to be given fair hearing in the determination of their civil rights and obligations. According to him, any breach thereof renders the proceedings and judgment generated from it a nullity, referring to SEYO vs. TAMFURE (2007) 8 NWLR (Pt.1035) 45; ZIIDEH vs. RSCSC (2007) 3 NWLR (Pt.1022) 554.
The learned counsel for the appellant gave the following reasons to support his argument that the appellant was not given fair hearing at the lower court. First, he argued that when the learned trial judge cancelled the bail of the appellant granted him by the judge who heard the matter earlier just after PW1 testified, the judge had believed the evidence of PW1 before hearing the case for the defence. That the subsequent conviction for murder was a mere confirmation of the decision of the court which the court had taken immediately after hearing the evidence of PW1. This action of the court, according to him prejudiced the merits of the substantive matter, citing the case of GTB PLC vs. FEDCO INDUSTRIAL LTD. (2007) 7 NWLR (Pt.1033) 307 at 332.
The second reason given by the appellant is that the court called CW1 Anna Nwokeji to testify after the defence had closed its case. He argued that neither the prosecution nor the defence applied for CW1 to be called as witness of the court but that the only application made by the prosecution was that she be called as witness of the prosecution. It is his submission that the said conduct of the court in suo motu calling the said Anna Nwokeji and leading her in evidence amounts to the court descending into the arena and taking side with the prosecution. Learned counsel opined that the calling of the said witness cannot be justified under Section 200 of the Criminal Procedure Law. He refers to the cases of R vs. EGWUATA (1940) 6 WACA 79; EJUHOLEM vs. POLICE (1952) 14 WACA 161 and QUEEN vs. ADEROGBA (1960) NSCC Vol. I pg. 140 at 142.
Thirdly, it was argued that there was no evidence as to who inflicted the third laceration on the body of the deceased as found by the medical doctor (PW3), as PW1 only alleged in her evidence that the appellant stabbed the deceased twice. Learned Counsel submitted that it was the learned trial judge who attributed the 3rd stab to the appellant.
This, according to appellant’s counsel, was unfair to the appellant.
Again, learned counsel argued that the lower court showed bias and absence of fair hearing when it tried to find explanation for the conflict between the shirt the appellant said the deceased wore on the day of the incident and Exhibit E which was tendered by the prosecution as the shirt which the deceased allegedly wore on the day in question.
It was the further contention of the appellant’s counsel that in view of the fact that the learned trial judge directed that the trial should take place in camera on the grounds that the appellant and 2nd accused were juveniles, and the same court convicting and sentencing the appellant to death in its judgment on the ground that the appellant was not under the age of 17 years at the time of the commission of the offence, the entire trial and conviction of the appellant for murder constitutes a grave violation of Sections 33 and 36 of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
The final submission of counsel on this issue is that a substantial breach of the appellant’s right to fair hearing occurred in the course of the proceedings when the court allowed the appellant to testify in Igbo language without any interpreter interpreting the evidence to the court from Igbo to English language which is the language of the court. The case of OGUNYE vs. STATE (1999) 5 NWLR (Pt.604) 548 was cited and relied upon. According to counsel, by reason of the absence of interpretation of the appellant’s evidence to the court, the court did not hear the appellant in his defence and thus denied him fair hearing. He urged this court to resolve this issue in favour of the appellant.
In her response, the learned Principal State Counsel, Mrs. K. A. Leweanya submitted that the right to fair hearing is a right which lies in the procedure followed in the determination of a case and not in the correctness of the decision arrived at in the case, citing the case of OTAPO & ORS vs. SUNMONU & ORS. (1983) 2 NWLR (Pt.58) 587 at 605. She further submitted that the lower court was very fair and the conduct of the case was in accordance with the relevant laws and rules in order to ensure justice and fairness as held in SALU vs. EGEIBON (1994) 6 NWLR (Pt.348) 23.
On the issue of revoking the bail of the appellant already granted by a former judge, she submitted that the trial judge is not bound by the decision of a former judge and bail formerly granted by one High Court judge can be reviewed by another judge hearing the substantive matter relying on the case of OKPE vs. STATE (1994) 5 NWLR (Pt.345) page 490. She contended that the decision to grant or refuse bail is at the discretion of the trial judge having regard to the circumstances of the case. It is her view that the decision of the former trial judge to grant bail to the appellant was not binding on the judge whom the matter began de novo. She relies on the case of EMORDI vs. C.O.P. (1995) 2 NWLR (Pt.376) 44.
Reacting to the submission on the calling of Anna Nwokeji as witness, she submitted that both the PW1 and the 2nd accused had mentioned the said witness as being present during the scuffle and so her attendance to testify would help in the just determination of the case especially as learned counsel for the appellant described her as the only “disinterested eye witness but whom the prosecution is reluctant to call but later testified as court witness.” According to her, the learned counsel for the appellant cannot refer to the evidence of this witness as a breach or violation of the appellant’s right to fair hearing when he fully represented the appellant and he described her evidence in the words recorded above.
On the allegation that the hearing was done in camera, she submitted that the hearing was not done in chambers, but in the open court which both counsel and the appellant and witnesses attended. That no member of the public was stopped from watching the proceedings.
That the learned counsel for the appellant accepted the procedure of not exposing the appellant unduly when it was alleged that he was a juvenile. She opined that if a party or counsel treats a document or procedure or matter as admissible or regular etc, then he cannot be heard or be at liberty to object or complain later or before an appellate court relying on the case of CHIEF BRUNO ETIM & ORS. vs. CHIEF OKON UDO UKPE & ANOR. (1983) 3 S.C. 12 at 36-37; EGBARAM & 2 ORS vs. AKPOTO & 3 ORS. (1997) 7 NWLR (pt.514) 559 at 574; S.P.D.C. NY. LTD. vs. EDAMUKUE (2009) ALL FWLR (Pt.489) 429.
On the submission that the evidence of the appellant was not interpreted into English since the appellant testified in Igbo language, she queried the reason behind the submission when the court never complained that it had difficulty in understanding the language of the appellant moreso, when the appellant, the learned trial judge and the counsel representing the appellant were all Igbos including the prosecuting counsel. Also, that since the appellant was represented by counsel and they did not complain at the trial, it is not open to them to do so now, referring the case of OGUNYE vs. STATE (1999) 5 NWLR (Pt.604) 548.
Learned Principal State Counsel submitted on the issue of trial within trail that the learned trial judge looked at all the issues raised, properly evaluated same and gave his ruling. That the fact that the ruling did not favour the appellant does not make the trial unfair. That the essence of fair hearing is that the parties are given equal opportunity to be heard throughout the trial relying on the case of OJO vs. FEDERAL REPUBLIC OF NIGERIA (2009) ALL FWLR (Pt.494) 1471.
On the issue of the shirt recovered from the appellant, she submitted that there was no conflict whatsoever on the shirt the deceased wore and the one tendered by the prosecution. That PW4 stated that a search warrant was conducted and the deceased’s shirt was found in the house of the appellant and this was done in the presence of the appellant. That the white shirt was tendered in evidence as Exh. E while the search warrant was tendered as Exh. G. It is her submission that learned counsel for the appellant did not raise any objection to the tendering of the shirt. That PW5 stated that Exh. E is the shirt recovered from the search and it was found in the room of the appellant. Her conclusion on this is that the learned trial judge found as a fact that Exh. E recovered from the room of the appellant was indeed the shirt worn by the deceased on the date of the incident. She urged the court to resolve this issue in favour of the respondent.
By Section 36 (4) of the 1999 Constitution of the Federal Republic of Nigeria 1999 (as amended), wherever any person is charged with a criminal offence, he shall unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable time by a court or tribunal. The expression “fair hearing” in Section 36 (4) of the 1999 Constitution means the trial of a case or conduct of proceedings according to all relevant rules for ensuring justice for all the parties. This right lies in the procedure followed in the determination of a case and not in the correctness of the decision arrived at in the case. See SALU vs. EGEIBON (1994) 6 NLWR (Pt.348) 23; OTAPO vs. SUNMONU (1983) 2 NWLR (Pt.58) 587. Right to fair hearing as enshrined in Section 36 of the 1999 Constitution is so fundamental to the adjudicatory process to the extent that a breach thereof leads to the nullification of any such proceedings. Where there is a breach of fundamental right to fair hearing, it does not lie in the mouth of a party in breach to canvass that there was no miscarriage of justice arising from the breach. The breach of fundamental right being fundamental overrides and overtakes the common law principle of “no miscarriage of justice”. This is so because, by the breach, the doctrine of technicality is gone as the adherence to technicality is receptive of the concept of miscarriage of justice. In other words, a breach of a mandatory constitutional provision is more than a mere technicality, it is fundamental. See EDIBO vs. STATE (2007) 13 NWLR (Pt.1051) 306; N.A.B. LTD vs. BARRI ENGINEERING NIG. LTD. (1995) 8 NWLR (Pt.413) 257; SEYO vs. TUMFURE (2007) 8 NWLR (Pt.1035) 45; ZIIDECH vs. R.S.C.S.C. (2007) 3 NWLR (Pt.1022) 554; NTUKUDEM vs. OKO (1986) 5 NWLR (Pt.45) 909; UNTHMB vs. NNOLI (1994) 8 NWLR (Pt.363) 376; BAMGBOYE vs. UNIVERSITY OF ILORIN (1999) 10 NWLR (Pt.622) 290.
A summary of all I have stated above is that the consequence of a breach of the rules of natural justice as enshrines in Section 36 of the 1999 Constitution of the Federal Republic of Nigeria is that the decision reached thereby will be a nullity and liable to be set aside. See ADIGUN vs. A.G. OYO STATE (1987) 1 NWLR (Pt.53) 678; OLATUNBOSUN vs. NISER (1988) 3 NWLR (Pt.80) 25; FCSC vs. LAOYE (1989) 2 NWLR (Pt.106) 652.
Having laid down the general principles of law governing Section 36 (4) of the 1999 Constitution, I shall now bring this to bear on the specific complaints of the appellant which he says constitute acts of unfair trial by the court below.
The first of such complaint is that the learned trial judge revoked his bail which was granted by another judge. This action by the learned trial judge is what the appellant contend was unfair to him. I need to say straightaway that the grant or refusal of bail in a murder charge is at the discretion of the learned trial judge. It is not granted as a matter of course. This is so because the unfettered discretion in the grant of bail depends on a number of factors which include but not limited to the following:
i) The magnitude of the crime;
ii) The quality of the evidence in support of the charge. This must be so strong so as to have an effect of inducing the accused to flee from justice if released on bail.
iii) The extent of the punishment for the offence;
iv) The probability of delay in the trial of the case.
See OKPE vs. STATE (1994) 5 NWLR (Pt.345) 490.
A trial judge confronted with issue of bail of an accused person has to bear the above factors in mind while considering whether to grant bail to an accused person or not. Even where bail has been granted and it becomes evident that the accused may not be found at the end of the trial, the court is at liberty to exercise his discretion to cancel such a bail. In all cases, the exercise of discretion by a judge must be done judicially and judiciously. Also, a judge of the High Court trying an accused person has unfettered discretion to review the bail given by another judge of the High Court since they both have co-ordinate jurisdiction. See OKPE vs. STATE (supra). In the instant case therefore, the bail granted by Duruoha-Igwe J. is not binding on Nonyerem Okoronkwo, J who subsequently heard the matter. In other words, Okoronkwo J is competent in law and has the jurisdiction to review the bail earlier granted to the appellant by Duruoha-Igwe, J when he (Okoronkwo, J) took over the hearing of the substantive case. It is my well considered opinion that after hearing the evidence of PW1 which was direct and cogent, the learned trial judge was entitled to review the bail earlier granted the appellant. This has nothing to do with issue of fair hearing.
It is trite that where judicial discretion is exercised bona fide by a lower court uninfluenced by irrelevant considerations and not exercised arbitrarily or illegally, but judicially and judiciously on sufficient materials, the general rule is that an appellate court will not ordinarily interfere. It is my view that the discretion was absolutely properly exercised. See UNIVERSITY OF LAGOS vs. AIGORO (1985) 1 NWLR (Pt.1) 145. Finally on this, I am satisfied that the learned trial judge exercised his discretion judicially and judiciously when he cancelled the bail of the appellant. There is no element of bias shown and there is nothing to justify allegation of unfair trial or hearing. Yes, the former judge took into consideration the age of the appellant in granting bail in a charge of murder but that was in the exercise of his discretion and not that it was to be granted automatically. See EMORDI vs. C.O.P. (1995) 2 NWLR (Pt.376) 244.
The next complaint was the calling of Anna Nwokeji as CW1 by the court. I wish to state that by virtue of Section 200 of the Criminal Procedure Act, the court at any stage of the trial, inquiry or other proceedings under the Act, may call and examine any person as a witness or recall and re-examine any person already examined if his evidence appears to be essential to the just decision of the case. However, the power under Section 200 of the Criminal Procedure Act must not be exercised in a manner to assist the prosecution to establish its case or to use it as an engine to take over the prosecution of the case by the trial court thereby failing in its duty as an impartial arbiter. Thus the overriding concern of an appellate court when dealing with matters under Section 200 of the Criminal Procedure Act is to see to it that no miscarriage of justice was or had been occasioned by the wrongful use of the section by the trial court. The trial court as an umpire is not expected to descend into the arena. In the instant case, the prosecution had applied to call this witness because the witness was not available when the prosecution needed her to testify. Moreover, the name of this witness Anna Nwokeji was listed in the proof of evidence together with her statement to the police. Again, the said witness was mentioned by both the PW1 and the 2nd accused as being present during the scuffle leading to the death of Godwin Ezike. Even the learned counsel for the appellant in his address described this witness as the only “disinterested eye witness but whom the prosecution is reluctant to call but later testified as court witness.” The evidence of such a witness, to my mind was germane in the just determination of the case. It is unfair to refer the evidence of this witness as a breach or violation of the appellant’s right to fair hearing especially when he was represented by counsel and the same counsel described her evidence in the words as recorded above. Counsel did not mention any part of the evidence of CW1, which was prejudicial to the appellant. I have carefully perused the evidence of CW1, and it is my view that the said evidence had no negative undertones against the appellant. See ONUOHA vs. STATE (1989) 2 NWLR (Pt.101) 23; USO vs. C.O.P. (1972) 11 S.C. 37; R vs. ADEROGBA (1960) 1 NSCC 14; IMHANRIA vs. NIGERIAN ARMY (2007) 14 NWLR (Pt.1053) 76
The next complaint is that the trial was held in camera. This is far from the truth. On page 40 of the record, the learned trial judge said as follows:
“Case is for plea. As the accused persons are said to be juveniles, this case would be better heard on a day when only the accused persons, the prosecution, counsel for accused would be the only ones in court. This case would accordingly be heard on Fridays.”
The facts show that Okoronkwoo J was not the first judge who tried this case. The matter went before him to be tried de novo. He was informed that the accused persons (including the appellant) were juveniles. He then invoked Section 36 (4) of the 1999 Constitution and directed that the case be heard on Fridays in the open court when not many people come to court. Now, Section 36 (a) of the 1999 Constitution states:
“36 (4) whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable time by a court or tribunal.
Provided that –
(a) A court or such tribunal may exclude from its proceedings persons other than the parties thereto or her legal practitioners in the interest of defence, public safely, public order, public morality, the welfare of persons who have not attained the age of eighteen years, the protection of the private lives of the parties or to such extent as it may consider necessary by reason of special circumstances in which publicity would be contrary to the interest of justice.
(b) …”
The trial of the appellant herein was done in the open court and there is no evidence that anybody came to witness the proceedings but was disallowed. When the learned trial judge was told that the appellant and his co-accused were juveniles, he invoked the proviso to section 36 (a) of the 1999 Constitution of the federal Republic of Nigeria and directed that the matter be heard on Fridays when not many people come to court in order to protect the appellant who was said to be a juvenile. The case of SIMON EDIBO vs. THE STATE (2007) 13 NWLR (Pt.1051) relied upon by the learned counsel for the appellant is inapplicable. In that case, the plea of the appellant was taken in the chambers of the learned trial Judge and the Supreme Court held that the chambers of a judge is not a public place. In the instant case, both the plea and trial of the appellant were conducted in the open court. There was therefore no breach of the right to fair hearing guaranteed by the Constitution.
As regards the argument that the evidence of the Appellant who testified in Igbo language was not interpreted to the learned trial judge, my view is that it is not borne out from the record. And in any case, the appellant is an Igbo man, the learned trial judge, Justice Okoronkwo is an Igbo man, counsel for the prosecution is an Igbo lady and even the appellants’ counsel is an Igbo man. So assuming that there was no interpretation into English, who should complain among the persons listed above? At least the court is not complaining that it did not understand the evidence of the appellant. It is trite that although it is a constitutional requirement that there shall be adequate and free interpretation to the accused of anything said in a language he does not understand, the procedure may be dispensed with where the accused so wishes and the trial judge is of the opinion that the accused does not require any interpretation of the proceedings. Where an accused does not ask for an interpreter, the failure to supply one would be treated as a matter of procedure and his conviction may only be set aside if the failure to supply an interpreter led to a miscarriage of justice. If the accused is represented by counsel, the objection must be taken at the trial in the first instance and not on appeal.In the instant case, since the appellant and his counsel at the trial court did not raise the issue of non provision of an interpreter for his benefit or that of the court, he is not entitled to raise same on appeal. See SUNDAY UDOSEN v. THE STATE (2007) 4 NWLR (Pt. 1023) 125; UWAEKWEGHINYA v. STATE (2005) 9 NWLR (Pt. 930) 227; OGUNYE v. STATE (1999) 5 NWLR (Pt. 604) 548.
The argument on the shirt worn by the deceased on the date of the incident is neither here nor there. The wife of the deceased who testified as PW1 identified the shirt worn by her late husband as a white shirt and not blue stripped shirt as stated by the Appellant. The said white shirt was the one recovered from the room of the Appellant. PW4 stated clearly that a search warrant was conducted and the deceased’s shirt was found in the house of the Appellant and this was done in the presence of the Appellant. The said white shirt was received in evidence as Exhibit E while the search warrant was exhibit G. Counsel for the Appellant did not raise any objection to the tendering of the white shirt or the search warrant. PW5 also stated that Exhibit E is the shirt recovered from the search and it was found in the room of the appellant. There was no conflict as to the shirt worn by the deceased and the one recovered from the house of the Appellant. The learned trial judge found as a fact that it was Exhibit E that the deceased wore on the date of the incident and not a blue stripped shirt as stated by the appellant in his evidence. And in any case I have not seen how this is related to issue of fair hearing.
I believe I have treated all the complaints which make up this issue on fair hearing. From all I have said above, it is crystal clear that the Appellant or his counsel failed woefully to show that the appellant was denied fair hearing in this case. Accordingly, this issue is resolved against the appellant.
The second issue for consideration is whether the lower court was right, when, in its ruling on the trial within trial, it admitted the alleged confessional statements of the Appellant as Exhibits C and D respectively. Learned counsel for the appellant submitted that the lower court breached the Appellant’s fundamental human right to fair hearing when it failed or refused in its ruling in the trial within trial to consider the case of torture and inducement put forward by the Appellant in the trial within trial before admitting the alleged confessional statements of the appellant as exhibits C and D respectively. It was learned counsel’s further submission on this issue that the non-consideration of a party’s case before arriving at a decision against such a party amounts to a breach of such a party’s right to fair hearing. On page 75 lines 10-11 of the record of appeal, the court below held that:
“For me going through the evidence it is difficult to accredit or discredit any side without prejudging the ultimate issues in this case.”
To the above expression by the learned trial judge, learned counsel for the appellant submitted that the implication of this is that there exists some doubt as to whether or not the statements were made voluntarily by the Appellant. That if it were otherwise, it would not have been difficult for the court to take a decision one way or the other, particularly as to whether or not the statements were made voluntarily. Learned counsel opined that in a criminal proceedings, where doubts occur, such doubts must be resolved in favour of the accused person citing the case of MAKWE v. COP (1989) 1 CLRN 92 at 99. He argued further that the court was only expected to determine whether or not the statements were obtained voluntarily or otherwise and not any other issue in the matter and that such determination will not prejudice the merits of the substantive trial. He cites and relies on the case of OBIDIOZO v. STATE (1987) 4 NWLR (Pt. 67) 748 at 760-761.
Finally, on this issue, learned counsel submitted that on a dispassionate consideration of the respective cases of the prosecution and the defence on the issue of the voluntariness or otherwise of the disputed confessional statements, especially as the appellant led graphic and convincing evidence of torture and inducement by the investigating police officers which the prosecution did not controvert by way of cross examination, the effect of not challenging the evidence of the Appellant by way of cross examination is that the prosecution admitted that evidence. He relies on these cases: AGBO v. STATE (2006) 6 NWLR (Pt. 977) 645; WAEC v. OSHIONEBO (2006) 12 NWLR (Pt. 994) 258 and NIGERIA CUSTOMS SERVICE v. BA ZUAYE (2006) 3 NWLR (Pt. 967) 303. He urged this court to resolve this issue in favour of the appellant.
In her response, the learned Principal State counsel for the Respondent submitted that in a trial within trial, the onus is on the Appellant to establish evidence whereby it will be shown either by inducement, threat or promise having regard to the charge the accused person faces and proceeding from a person in authority as to give him reason to believe that he will gain advantage from the evil now confronting him. Drawing the attention of this court to specific areas of the record showing how the learned trial judge resolved this issue, she submitted that the learned trial judge painstakingly analyzed the various issues as stated in the Ruling and came to the finding of fact that the two statements were voluntarily made and accordingly admitted them as Exhibits C & D. She urged this court to resolve this issue in favour of the Respondent relying on the cases of JOSEPH v. STATE (2011) FWLR (Pt. 599) 1018 and NWANGBOMU v. THE STATE (2001) ACLR 12.
It is trite that where on the production of a confessional or any statement, it is challenged that the accused did not make it at all, such an objection does not go to the admissibility of the statement and the trial court is entitled to admit the confession in evidence as a statement the prosecution claims to have obtained from the accused person and thereafter to decide or find as a matter of fact whether or not the accused person in fact made the statement at the conclusion of the trial. See GODWIN IKPASA v. BENDEL STATE (1931) 9 SC 7 at 28. The position will however be different where the admissibility of a statement is challenged on the ground that it was not made voluntarily. In the later case, it will be incumbent on the trial court to call upon the prosecution to establish the voluntariness of the statement by conducting a trial within a trial. See PELE OGUNYE v. THE STATE (1999) 5 NWLR (Pt. 604) 518, (1999) 4 SC (Pt. 1) 30; JOSHUA ADEKANBI v. A.G WESTERN NIGERIA (1966) 1 ALL NLR, 47; PAUL ASHAKE v. THE STATE (1968) 2 ALL NLR 198; OGUALA v. THE STATE (1961) 2 NWLR (Pt. 175) 509, R v. OMOKARO, 7 WACA, 146.
The pith and substance of this issue is that the learned trial judge failed to consider the evidence of the appellant at trial within trial before holding that the statements of the appellant at the police station i.e. Exhibits C & D were voluntarily made. Although the learned counsel for the Appellant argued that the Appellant was not given fair hearing while arguing this issue, I think he may be forgiven because he had just concluded argument on issue of fair hearing in issue one. Argument on issue of fair hearing was still fresh in his mind and so he incorporated it in this issue. Be that it may, I have had opportunity to read the Ruling of the learned trial judge on the trial within trial which ruling is on pages 74 to 77 of the record. After summarizing the evidence of both the prosecution and the defence at the trial within trial, the learned trial judge on page 75 of the record states:
“For me, upon going through the evidence, it is difficult to accredit or discredit any side without prejudicing the ultimate issues in the case.”
The above is the aspect of the Ruling which the learned counsel for Appellant has picked holes. But that was not all. The learned trial judge went ahead to appraise the statement and other surrounding circumstances to arrive at a conclusion. It must be noted that at the trial within trial, the only evidence for the defence was that of the appellant who told the court that he was threatened and he had to sign the statement whereas the prosecution called witnesses to say that the appellant’s first statement made on 26/4/2000 was recorded by PW4 while the one made on 27/7/2000 was written by the Appellant himself, thereby he was taken before a superior police officer where the appellant admitted the two statement and he (the SPO) counter signed. This is what PW2 said at the trial within trial on page 62 of the record. It states:
“The accused offered to write by himself, I gave him the pen and he wrote the statement himself. After he recorded his statement, he read it to me and I asked him to sign it which he signed. I took him to my team leader Inspector Eugine Egwuekwe. The Inspector and I then took him to Livinus Tor, Deputy Superintendent of Police at the time. In accused was introduced to me (sic) and the confessional statement.
In accused made was given to him. The Superior Police officer asked him if he was forced to make the statement or if any promise was made to him. The 1st accused said no; then the Superior Police Officer read the statement to him. 1st accused admitted writing the statement. The SPO signed and the 1st accused counter signed. The 1st accused was physically well when he mode the statement. He was not induced to make the statement. It is not true that the 7th accused made the statement under duress; torture and coercion. It is not true that I hung the accused on a ceiling while obtaining his statement. I did not urge the accused to make statement while he was in cell with a promise of release for 1st accused.”
The above was part of the evidence of the prosecution at the trial within trial to counter that of the appellant that he was induced and tortured to make the statement. In view of the above scenario, the learned trial judge then stated his difficulty of resolving the matter without prejudicing the main case which evidence was not yet concluded. The learned trial judge then set out to resolve the matter notwithstanding. In the process, I shall quote in extenso part of Ruling of the learned trial judge on the issue to drive home the point that the court did its best in resolving the issue before admitting the two statements as Exhibit C and D. From page 75 of the Record, this is what the lower court said:
“For this reason, I read the two statements in question over and over again and tried to relate the contents therein to the evidence so far led in the case. Part of the statement of 1st accused of 26/5/2000 (sic) recorded by PW4 reads thus:
“In view of this challenge, he held me by the neck of my shirt saying if I am his mate? I then held his own shirt too. This resulted in fighting between both and during this fighting was when he picked Indian bamboo hit on my head. It was this Indian bamboo I forced from him I used stabbed on his stomach. As soon as I had done this, I ran away to our house. As I was lighting with him his wife Rose Ezike equally used the same Indian bamboo one me…….
The Indian bamboo was dropped at the scene of crime. I did not ran (sic) away with it”
The statement of 27/4/200 which the accused made himself reads in part thus:
“He held me on my neck asking whether I am his mate I held him back resulting to fighting, he picked Indian bamboo and struck me on the head before I brought out pen knife from my pocket and stabbed him twice and ran away to our house…”
One item that is characteristically common to both statements is the Indian bomboo and the use of it.”
Thereafter, the learned trial judge considered the cross examination by the learned counsel for the appellant on PW1 which the said counsel also introduced the object of Indian bamboo to the case. This shows clearly that the words “Indian bamboo” first surfaced in the two statements of the Appellant and also from learned counsel for the appellant during cross examination of PW1. Any wonder why the learned trial judge made the following conclusions. He held thus:
“I have here reproduced the relevant parts of the two statements of the 1st accused and part of the cross examination of PW1 by the lawyer of the 1st accused.
A comparison between the facts put in cross examination on PW1 by the 1st accused and the facts of the physical engagement between the 1st accused and the deceased Godwin Ezike and the use of Indian bamboo – bereft of the fact of stabbing either with Indian bamboo or pen knife, reveal a striking similitude that compel me to believe that the statements of 26/4/2000 and 27/4/2000 were indeed the statements of the 1st accused and that they were made voluntarily. See R. SKYES (1913) at App. R. 233. Accordingly I receive the statement in evidence as Exhibits C & D respectively.”
It is noteworthy that even after the trial within trial, the Appellant gave evidence in his defence and also made reference to the Indian bamboo. This is what the Appellant said on page 90 of the record during his evidence – in – chief:
“As he tried to lift me I held a table that was chained to a chair. As he tried to lift me and could not we both fell down and the bamboo strike wounded him. I then ran out because he is bigger than me and older. I ran to our house.”
The two statement exhibits C & D talk about Indian bamboo. The Appellants’ counsel during cross examination of PW1 talked about Indian bamboo. The Appellant in his evidence in chief talked about the same Indian bamboo. The prosecution witness never talked about this Indian bamboo. The only difference in all this is the use to which the said bamboo was put to. In one breath, the appellant said the deceased used it on him and he collected it and used it to stab the deceased and in another breath he said that the deceased fell on it and he was wounded. For me, I think the learned trial judge painstakingly found as a fact that the Appellant voluntarily made the two statements for there is nothing unusual about those statements. After all, it is the defence which talked about the bamboo.
It is trite that, in law a voluntary confession of guilt if fully consistent and probable, and is coupled with a clear proof that a crime had been committed by some persons, is usually accepted as satisfactory evidence on which the court can convict. See KENNETH OGOALA v. STATE (1991) 2 NWLR (pt. 175) 509, (1991) 3 SCNJ 61, (1991) 3 SC 80. More so, a confessional statement is admissible if it is direct and positive and relates to his own acts, knowledge or intention, stating or suggesting the inference that he committed the crime charged. See AKPAN v. STATE (1992) 7 SCNJ 22; YUSUF vs. STATE (1976) 6 S.C. 167; OBASI vs. STATE (1965) 129.
On the whole, it is my well considered opinion that in view of the evidence before the court below at the trial within trial, the learned trial judge did his best in the circumstance to resolve the issue of voluntariness or otherwise of Exhibits C & D. I think instead of vilifying the learned trial judge, he ought to be commended for his efforts. Accordingly, this issue is hereby resolved in favour of the respondent.
The next and 3rd issue is whether the lower court was right when it reopened the issue of the age of the appellant and held that the appellant was not under the age of 17 years at the time of the commission of the alleged offence. The appellant’s complaint on this issue is hinged on the fact that after Justice Duruoha-Igwe who first heard this case, held that the appellant herein was a juvenile at the time this offence was committed, Justice Nonyerem Okoronkwo who heard the matter de novo held that the appellant was 20 years old at the time of the commission of the offence. In his argument, the learned counsel for the appellant submitted that once a court of competent jurisdiction such as the Imo State High Court presided over by Duruoha-Igwo, J has made a decision on any particular issue, such decision remains valid and binding until such a decision is set aside by an appellate court or other competent court of law. Refers to the case of AJAO vs. ALAO (1986) 5 NWLR (Pt.45) 802 at 823. According to him, the decision of Justice Duruoha-Igwe is binding on Justice Nonyerem Okoronkwo and that Okoronkwo, J has no power to set aside the decision of Duruoha-Igwe, J relying on the case of WITT & BUSCH LTD. vs. DALE POWER SYSTEMS PLC (2007) 17 NWLR (Pt.1062) 1 at 25.
It was learned counsel’s further contention that Justice Okoronkwo has earlier in the proceedings held that the appellant was a juvenile at the time of the commission of the offence and treated him as such. He then submitted that the learned trial judge had no jurisdiction to set aside his decision that the appellant was a juvenile, citing the case of ODUTOLA vs. LAWAL (2001) 1 NWLR (Pt.749) 633 at 655.
Submitting further, learned counsel argued that assuming that the learned trial judge had the jurisdiction to interfere with his previous decision and the decision of Duruoha-Igwe, J on the issue of the age of the appellant, there was no material lawfully before the court that the appellant was 20 years old at the time of the commission of the offence. According to him, the lower court in coming to that conclusion relied on an affidavit deposed to by one Kingsley Uhachukwu on behalf of the prosecution and a certain West African School Certificate entry schedule which is Exhibit A to the said affidavit. That the court also relied on Exhibit D tendered before it which is one of the confessional statements of the appellant. In respect of Exhibit A attached to the motion, he submitted that the said affidavit was filed in respect of the issue of the age of the appellant which was exhaustively argued and determined by Duruoha-Igwe, J. That it was no longer open to the lower court to have relied on the same affidavit in its judgment to hold that the appellant was not under the age of 17 years at the date of the commission of the offence. According to him, the said affidavit along with the attachments thereto are worthless hearsay and unsubstantiated evidence which the court ought not to rely on. He cites and relies on the cases of EDU vs. COMMISSIONER FOR AGRICULTURE, WATER RESOURCES AND RURAL DEVELOPMENT (2000) 12 NWLR (pt.681) 316; CEDAR STATIONARIES LTD vs. IBWA LTD (2000) 12 NWLR (Pt.690) 338.
It was his contention that throughout the duration of the case, the prosecution did not draw the appellant’s attention to the said Exhibit A which was allegedly signed by him. He submitted that the lower court could not lawfully rely on such affidavit and document purportedly signed by him. He relies on the case of KUTI vs. ALASHE (2005) 17 NWLR (Pt.955) 625.
Relying also on the case of ESANGBEDO vs. THE STATE (1989) 3 NSCC 23 at 28, learned counsel submitted that extra-judicial statements of a witness can only be used for the purpose of cross-examining the witness who made it and cannot be admitted in evidence and relied upon by the court in proof of the truth of its contents. In conclusion, he submitted that though Exhibit D was tendered and admitted as a confessional statement, the portion of the statement relied upon by the lower court which relates to the age of the appellant is not part of the confession. He then urged the court to resolve this issue in favour of the appellant.
Responding, learned counsel for the State submitted that Justice Okoronkwo was not bound by the decision of Justice Duruoha-Igwe because courts that are of concurrent jurisdiction are not bound to follow the decision of each other, relying on the case of Prof. A. D. ODUTOLA vs. UNIVERSITY OF ILORIN (2005) ALL FWLR (Pt.245) 1151. That since the present lower court had the opportunity of hearing the witness, seeing the witness and even observing their demeanour, it was open to the learned trial judge to make up his mind on issues raised before him and not to rely on what his learned brother did since the matter started de novo.
Learned Principal State Counsel submitted further that the learned counsel for the appellant failed to properly make the age of the appellant an issue before the trial court. That even in his address he merely stated that the appellant was a juvenile without putting concrete evidence to that effect before the court. That even the previous decisions of Duruoha-Igwe, J was never placed before the learned trial judge even though he is not bound by it. She relies on Section 34 (1) of the Evidence Act and the cases of NAHMAN vs. ODUTOLA (1953) 14 WACA 381; ALADE vs. ABORISHADE (1960) NLR 398 and UGURU vs. STATE (2005) 4 ACLR 534. She referred this court to page 138 of the record where the learned trial judge asked the appellant’s counsel if he led evidence on the age of the appellant, the learned counsel for the appellant replied that the issue was settled by Duruoha-Igwe, J. She then drew the attention of this court to analysis of the issue by the learned trial judge in his judgment and submitted that the appellant gave conflicting figures relating to his age and as such he is not a witness of truth. She relies on the case of SOWEMIMO vs. THE STATE (2004) ALL FWLR (Pt.208) 951. She urged this court to resolve this issue in favour of the State.
It is now well settled that where a court of competent jurisdiction has given judgment or made an order, such judgment or order remains valid and effective unless and until it is set aside by an appellate court or by the lower court itself if it finds that it had no jurisdiction to give the judgment or make the order. See OGUEZE vs. OJIAKO (1962) 1 SCNLR 112; MELIFONWU vs. EGBUYI (1982) 9 SC 145; AJAO vs. ALAO (1986) 5 NWLR (Pt.45) 802. In WITT & BUSH LTD. vs. DALE POWER SYSTEMS PLC (2007) 17 NWLR (Pt. 1062) 1, it was held by the Supreme Court that in the absence of statutory authority or where the judgment or order is a nullity, one judge has no power to set aside or vary the order of another Judge of concurrent and co-ordinate jurisdiction. That the rationale or reason for this position is that there is only one High Court in a State. In other words, a court of co-ordinate jurisdiction has no jurisdiction to set aside the judgment of another court of similar jurisdiction. But where an order of a court is a nullity, such an order could be set aside by another court of similar jurisdiction without much ado. See WIMPEY NIG. LTD vs. BALOGUN (1986) 3 NWLR (Pt.28) 324; ORTHOPAEDIC HOSPITAL MANAGEMENT BOARD vs. B. B. APUGO & SONS LTD. (1990) 1 NWLR (Pt.129) 652; SKENCONSULT (NIG.) LTD vs. UKEY (1981) 1 SC.6; UKPAI vs. OKORO (1983) 2 SCNLR 380.
The learned counsel for the appellant relied heavily on the case of WITT BUSH LTD vs. DALE POWER SYSTEMS PLC (supra). With due respect to the learned counsel, the said case is authority for what it decides. It is inapplicable in this case. A distinction has to be drawn between a situation where a court of co-ordinate jurisdiction without any lawful excuse sets aside the judgment or order of another court of equal jurisdiction and a situation, as in this case, where the learned trial judge had to try this case de novo. To start a case de novo means to start all over again. See OBIUWENLRI vs. CBN (2011) 7 NWLR (Pt.1247) 465. What this means is that even though plea was taken before Justice Duruoha-Igwe, a new plea must be taken before Okoronkwo, J who heard the case de novo. The prosecution has to call all his witnesses to prove the case afresh, so also the defence. All the exhibits tendered before the previous judge, must be re-tendered at the de novo trial. If there is any objection to the tendering of any document, the de novo trial judge has to consider and rule on it. If a party had laid foundation to tender a document which is a photocopy before the previous judge, he has to do so again before the trial judge hearing the matter de novo. A party seeking to tender such a document cannot just point out to the de novo trial judge that since this document was tendered or rejected by the former judge, he (the new judge) should be bound by it. It is not the law that a judge trying a matter de novo must go outside the evidence led before him to fish for evidence in the previous trial to take a decision. Where a party fails to lead evidence to prove or defend his case before the new judge, wishing that the new judge should rely on the evidence led before the former judge, he has shot himself on the foot.
In the instant case, the issue that the appellant was a juvenile at the time he committed this offence was not properly raised at the court below. No evidence was led in respect of this; at least there is none on the record. On page 138 of the record is clearly seen that the defence did not lead any evidence on the age of the appellant before the learned trial judge. Issue of the age of the appellant only surfaced in the address of his counsel. After adopting his address, the counsel for the appellant, Mr. B. C. Iheka Esq. who represented the appellant at the court below was asked the following question by the court on page 138 of the record:
“Court to B. C. Iheka – In this case, did you lead any evidence as to age of the accused persons?”
To the above question by the court, the learned counsel for the appellant answered as follows:
“Ans: Issue of the ages of accused persons has already been determined by the court presided by F. I. Duruoha-Igwe (Judge) while this case was before her. Says the decision is in the record of this court and by law whoever judge is presiding can make reference to the decision.”
The above question and answer clearly show that evidence that the appellant was a juvenile was never ted before the learned trial judge. In fact that issue, as I said earlier surfaced in the address of counsel on pages 119 – 120 of the record thus:
“2. The 1st and 2nd juvenile offenders respectively 15 years and 16 years old 21/4/2000 when the alleged offence was committed. They are therefore young persons under Section 2 of the CHILDREN AND YOUNG PERSONS LAW CAP. 19 LAWS of Eastern Nigeria applicable to Imo State.”
It is now firmly settled that address of counsel however brilliant, cannot take the place of evidence particularly where there is no evidence, as in this case in support of the fact that the appellant was a juvenile at the time of the commission of this offence. See ODUWOLE vs. WEST (2010) 10 NWLR (Pt.1203) 598; NEKA G.B.B. MANUFACTURING CO. LTD. vs. A.C.B. (2004) 1 SCNJ 193 at 2005; OKWEJIMINOR vs. GBAKEJI (2008) 5 NWLR (Pt.1079) 172; (2008) 1 SC (Pt.111) 263; IGWE vs. AICS (1994) 8 NWLR (Pt.363) 459 at 481.
It was argued by the learned counsel for the appellant that the learned trial judge had earlier held that the appellant was a juvenile and as such cannot reverse himself. With due respect to the learned counsel for the appellant, there is nowhere in the record that the learned trial judge held that the appellant was a juvenile. On page 40 of the record is recorded a statement made by the learned trial judge in respect of the status of the appellant. This is what he said –
“Case is for plea. As the accused persons are said to be juveniles, this case would be better heard on a day when only the accused persons, the prosecution, counsel for accused, would be the only ones in court.”
The learned trial judge did not hold that the appellant was a juvenile. He only stated that “as the accused persons are said to be juveniles.” It was the duty of the learned counsel for the appellant to lead credible evidence to confirm the allegation. If the learned trial judge had so held that the appellant was a juvenile, why then did he ask the learned counsel for the appellant whether he had led evidence to prove that the appellant was a juvenile?
Based on the insinuation by the learned counsel for the appellant in his address that the appellant was a juvenile, the prosecution in its address on page 136 of the record stated thus:
“…… Exhibit H dated 22/4/2000, appellant list and put his age at 15 years. Exhibit C he put his age at 16 and in Exhibit F (sic) he put his age at 20.”
In view of the above submissions of both counsel, the learned trial judge had to resolve this matter one way or the other. As I said earlier the defence did not lead evidence on the age of the appellant. However, the learned trial judge found as a fact that in Exhibit C which is the first statement the appellant made to the police, he gave his age as 16 years. But in Exhibit D, the confessional statement of the appellant, he gave his age as 20 years. In this kind of situation, the learned trial judge was at a fix but had to find a solution. He then looked into the record of proceedings and the papers filed so far and found that in an affidavit filed by the prosecution in support of the fact that the appellant was not a juvenile, Exhibit A attached thereto is a WAEC entry schedule signed by the appellant which was obtained from the secondary school the appellant attended. In the said schedule “Exht. A” the appellant’s date of birth was put at 6th March, 1979. The learned trial judge then concluded thus:
“That WAEC entry signed by the 1st accused shows that 1st accused was 20 years old by 2000 when the offence was committed. What is more, the date of birth given by the 1st accused agrees with the age on Exhibit D. In my opinion, the 1st accused person is not under the age of 17 years at the time of the commission of the act and so Section 319 (2) of the Criminal Code and Section 368 (2) of the Criminal Procedure Law do not apply.”
Learned counsel for the appellant had argued that it was wrong for the learned trial judge to have looked at Exht. A annexed to the affidavit filed earlier in the case in the process of determining the age of the appellant. But I think it is well settled that a court will take judicial notice of its records and proceedings. All processes and documents filed in a case are for the consumption of the court. A party cannot urge the court not to look at papers already filed before it. See GBANIYI OSAGILE & ANOR. vs. PAUL ODI & ANOR. (1990) 2 NWLR (pt. 137) 130, (1990) 5 SC (Pt.11) 1; MILITARY GOVERNOR OF LAGOS STATE & ORS. vs. ADEBAYO ADEYIGA & ORS. (2012) LPELR 7836 (SC); DAGGASH vs. BULAMA (2004) 14 NWLR (Pt.892) 144; SBM SERVICES (NIG.) LTD. vs. OKON (2004) 9 NWLR (Pt.879) 529.
My view is that the appellant and his legal team are to blame. First, they never led evidence to show the age of the appellant before the learned trial judge. Secondly, the appellant gave conflicting figures regarding his age. In Exhibit C, he gave his age as 16 years and in Exhibit D, he gave his age as 20. So, the learned trial judge found something in the record to show that the age on Exhibit D was authentic and had to rely on it. Where a party or witness gives contradictory claims on an issue, he has only exposed himself as a witness whose evidence cannot be trusted or relied upon. See SOWEMIMO vs. THE STATE (2004) ALL FWLR (Pt.208) 951.Learned counsel for the appellant had argued that the age of the appellant on Exht. D, the confessional statement was not part of the confession. According to learned counsel only the aspect relating to the commission of the offence could be said to be confessional and not the age given by the appellant in the statement. What an ingenious argument? However, I regret to say that I am not persuaded by it at all. For me, all the information contained in the said exhibits are relevant. The appellant cannot own part of the statement and disown the others he thinks are not favourable to him.
On the whole, I am of a firm believe and I so hold, that the learned trial judge having been saddled with the responsibility of hearing this matter de novo, was entitled to hear the case in full. He had jurisdiction to take the plea, hear witnesses, admit or reject documents, rule on contentious issues and at the end, write and deliver his judgment in the best tradition of the court based on evidence adduced before him. He is fully responsible for every step taken in the matter. He is not bound by the opinion of any other judge who is not hearing the case with him. That is my humble view on this matter. This issue, as it turns out, is resolved against the appellant.
The fourth and last issue for determination is whether the lower court was justified in convicting the appellant for murder. Learned counsel for the appellant submitted that the prosecution failed to prove its case against the appellant as there were very grave doubts in the case of the prosecution. It was his contention that the PW1, in her evidence said that the appellant stabbed the deceased twice whereas the PW3, a medical doctor, in his evidence stated that he found three deep lacerations on the body of the deceased. According to him, there was no evidence how the third wound was inflicted. Again, he submitted that the PW1 was unable to describe the nature of the knife used in stabbing the appellant. Learned counsel also submitted that whereas the PW1 and CW1 testified that the deceased was stabbed with a knife, the prosecution also tendered Exhibits C & D which show that the deceased was stabbed with Indian bamboo. This, according to him is contradictory, relying on the case of AGBO vs. STATE (2006) 6 NWLR (Pt.977) 545. Learned counsel argued that looking at the case of the prosecution, there is no clear and straight forward evidence as to the instrument used in killing the deceased. He asked, was it by dagger, knife or Indian bamboo? It is his contention that in a charge of murder, the prosecution is to prove that it was the act of the accused that caused the death of the deceased but that in this case, the prosecution has failed to prove it. He relies on the cases of UDOSEN vs. STATE (2007) 4 NWLR (Pt.1023) 125; ONUBOGU vs. STATE (1974) 9 S.C. 1; IKENSON vs. STATE (1988) 1 LCRN page 1.
The learned counsel also argued on the admissibility of Exhibits C & D and also on the issue of the age of the appellant which have already been determined in this judgment. I shall therefore discountenance same.
In her response, the learned counsel for the State stated the essential ingredients of the offence of murder and submitted that the prosecution was able to prove all the ingredients of that offence, citing the cases of OMONGA vs. STATE (2006) ALL FWLR (Pt.30) 93; OGBA vs. STATE (1992) 2 NWLR (Pt.222) 164 and EYO vs. STATE (2010) ALL FWLR (Pt.583) 1928.
It is her contention that all the parties herein including the appellant testified to the fact that Godwin Ezike died. On the issue as to who caused the death of the deceased, she submitted that PW1 & CW1 were eye witnesses who saw when the appellant stabbed and killed the deceased. Learned counsel also drew the attention of the court to the confessional statement of the appellant where he admitted stabbing the deceased with pen knife. She submitted that the prosecution was able to prove beyond reasonable doubt that it was the act of the appellant that killed the deceased. She relies on the cases of ALABI vs. STATE (1993) 9 SCNJ 109; UYO vs. A.G, BENDEL STATE (1986) 1 NWLR (Pt. 17) 48.
With regard to proof of intent, learned counsel submitted that the court may rely on the presumption that a man intends the natural consequence of his act. She relies on the cases of R vs. NWUGU (1953) 14 WACA 379; R vs. ADI (1955) WACA; HYAN vs. DPP (1974) ALL ER 42; ALHASSAN MAIYAKI vs. THE STATE (2008) ALL FWLR (Pt.44) 628; MOHAMMED GARBA vs. STATE (200) 77 LRCN page 1126.
Learned Principal State Counsel further submitted that in view of the animosity already created by the death of the brother of the appellant, the field was ripe for the offence to be committed and when it happened, the intent was glaring. On the issue of the number of wounds inflicted, learned counsel submitted that it is immaterial how many cuts were inflicted so far it is the appellant’s cut which killed the deceased. She also submitted that there are no inconsistencies in the evidence of the prosecution. She urged this court to resolve this issue in favour of the respondent.
The burden of proving that any person is guilty of a crime rests on the prosecution which alleges it. Also, the cardinal principle of law is that the commission of a crime by a party must be proved beyond reasonable doubt. This is the law as laid down in Section 135 of the Evidence Act, 2011. See also UDOSEN vs. STATE (2007) 4 NWLR (pt.1023) 125. YONGO & ANOR. vs. C.O.P. (1992) 4 SCNJ 113; UCHE WILLIAMS vs. THE STATE (1992) 10 SCNJ 74; OKPUTUOBIODE & ORS. vs. THE STATE (1970) ALL NLR 36; SUNDAY OMINI vs. THE STATE (1999) 12 NWLR (Pt.630) 168, (1999) 9 S.C. 1.It has to be noted that this burden never shifts. Therefore, if on the totality of evidence before the court, it is left in a state of doubt, then the prosecution would have failed to discharge the onus of proof which the law places on it and the accused person would be entitled to an acquittal. In other words, any such doubt is usually resolved in favour of the accused person.
In consequence of the above, it is incumbent on the prosecution to prove its case by evidence of such quality and quantity as to leave the court in no doubt as to the guilt of the accused person. Thus, where the prosecution fails to prove an essential element in a criminal charge, an appellant convicted in such a trial is entitled to have his appeal allowed and the conviction quashed.
It is now well settled that in a charge of murder, the prosecution must prove the following ingredients beyond reasonable doubt, that is to say:
1. The death of a human being;
2. That it was caused by the act of the accused;
3. That the act or acts were done with the intention of causing death or grievous bodily harm.
4. The accused knew that death would be the probable consequence of his act or acts.
See OMINI vs. STATE (1999) 12 NWLR (Pt.630) 168, (1999) 9 S.C.1; UDOSEN vs. STATE (supra); LORI vs. STATE (1980) 8-11 S.C. 95; EDOHO vs. THE STATE (2010) 14 NWLR (Pt.1214) 651; AUDU vs. STATE (2003) 7 NWLR (Pt.820) 516.
In the instant case, there is sufficient evidence that one Godwin Ezike, the victim of this murder charge, died on 21st April, 2000. The PW1 stated clearly that the said Godwin Ezike her husband was stabbed with a knife by the appellant on 21/4/2000 at Afor Awaha Market Square on the upper back chest and front chest in her presence and his seven year old son and he slumped and died on the spot. PW2, PW3, PW4 and CW1 all testified that Godwin Ezike died on 21/4/2000. Even the appellant in his statement to the police (Exhibit C) admitted that Godwin Ezike died. Therefore, there is more than enough proof that Godwin Ezike died.
The second ingredient of the offence of murder which the prosecution must prove beyond reasonable doubt is that it was the act or acts of the appellant which caused the death of Godwin Ezike. The prosecution has one evidence against the appellant in this regard and that is as vividly given by PW1 who was present when the appellant killed her husband. That evidence is as found by the learned trial judge on page 167 of the record which contains part of the judgment. It states:
“Having regard to the evidence of PW1, Rose Ezike, Anna Nwokeji CW1, the medical doctor PW3 and his findings and Exhibit D statement of the 1st accused. I have no doubt whatsoever that the 1st accused stabbed the deceased Godwin Ezike on the back chest and on the front chest and that he (Godwin Ezike) died of the stab wounds.”
I agree completely with the above finding and conclusion of the learned trial judge. The reason is that evidence shows that the deceased died on the spot after being stabbed by the appellant. Medical evidence shows that the deceased died of stab wounds. I am satisfied that the prosecution proved this aspect beyond reasonable doubt.
The learned counsel for the appellant had contended that there are inconsistencies in the evidence of the prosecution witnesses on this matter. With due respect to him, I see it differently. All the prosecution witnesses particularly PW1 and CW1 are united that the appellant stabbed the deceased with pen knife. None of them testified that the deceased was stabbed with Indian bamboo. The issue of Indian bamboo was introduced by the appellant. The fact that the prosecution tendered the said statements of the appellant does not make it a contradiction by a prosecution witness. For me, the learned counsel for the appellant failed to show any concrete contradiction in the evidence of prosecution witnesses. For any contradiction, conflict or mix-up in the evidence of the prosecution witness to be fatal to a case, the conflict, contradiction or mix-up, must be substantial and fundamental. See UDOSEN vs. STATE (supra) and MAIYAKI vs. STATE (supra).But as I said, there is no iota of contradiction in this case. Evidence before the lower court is that after the appellant stabbed the deceased, he ran away with the knife he used which was later recovered in his house by police. I am therefore not surprised that the PW1 was unable to describe the entire features of the knife. The learned counsel for the appellant made heavy weather on this aspect but I think his argument on it is misplaced and inconsequential.
The next ingredient which must be proved is that the act of the accused which caused the death of the deceased was intentional with knowledge that death or grievous bodily harm was its probable consequence. It has been held that if a man, in full knowledge of the danger involved and without lawful excuse, deliberately does that which exposes a victim to the risk of probable grievous bodily harm, or death and the victim dies, the perpetrator of the crime is guilty of murder and not manslaughter to the same extent as if he had actually intended the consequences to follow and irrespective of whether he wished it. See HYAM vs. DPP (1974) ALL E.R. 42; GARBA vs. THE STATE (2000) 77 LRCN 1126.
In the concluding part of the judgment of the learned trial judge on page 171 of the record, the court states as follows:
“I find instead that the 1st accused person, filled with hate and o motive for revenge set out to kill the deceased Godwin Ezike on the supposition that the deceased Godwin Ezike was responsible for the death of the accused person’s elder brother Sunday Iche in Lagos.”
I can’t fault the above finding and conclusion. I agree with the court below that when the appellant met the deceased on the fateful day, he had made up his mind to kill the deceased or at least to cause him grievous bodily harm. There can be no doubt that when the appellant stabbed the deceased with a pen knife at such sensitive position of the body such as the chest, he must be deemed to have intended to cause such bodily injury as he knew that death would be the probable consequence of his act, moreso, when he was already filled with hate and a motive for revenge arising from the suspicion that the deceased killed the appellant’s brother in Lagos.
I am therefore satisfied even as found and held by the court below that the prosecution proved beyond reasonable doubt the essential ingredients of the charge of murder against the appellant. I also agree that the quality and quantity of evidence against the appellant by the prosecution is such that it was more than enough to convict the appellant for the murder of Godwin Ezike. This issue, as it turns out, does not avail the appellant at all.
Having resolved the four issues submitted by the appellant for the determination of this appeal against the appellant, I hold that this appeal lacks merit and is hereby dismissed. I affirm the judgment of the Imo State High Court in Charge No. HOU/8C/2001 delivered on 3rd April, 2008 by Hon. Justice Nonyerem Okoronkwo where the appellant was convicted for the murder of one Godwin Ezike and sentenced to death.
UWANI MUSA ABBA AJI, J.C.A: This appeal is against the judgment of the Imo State High Court, holding at Mgbidi delivered on the 3rd day of April, 2005 by Honourable Justice Nonyerem Okworonkwo wherein the Appellant was convicted for the murder of one Godwin Ezike and sentenced to death by hanging.
I have had the privilege of reading in advance the lead judgment of my learned brother J. I. Okoro, JCA just delivered.
The facts of the case were concisely stated. I do not have to reconsider them again. I accept the facts as stated by learned brother.
My Learned brother J. I. Okoro, JCA, critically examined albeit dispassionately the case of the parties and left no stone unturned. He has treated all the issues presented to us for determination of the appeal. I adopt the reasons and conclusions ably stated in the lead judgment in dismissing this appeal. I also dismiss the appeal as most unmeritorious and affirm the conviction and sentence of death on the Appellant for the murder of Godwin Ezike.
PHILOMENA MBUA EKPE, J.C.A: I have been privileged to have a preview of the lead judgment just delivered by my learned brother JOHN I. OKORO, JCA. I entirely agree with his Lordship’s decision on all the issues raised. For the reasons and conclusions very neatly and as usual stylishly and painstakingly adumbrated herein, I too hold that this appeal lacks merit and is hereby dismissed. The judgment of the Imo State High Court in charge No. HOU/8C/2001 delivered on the 3rd day of April 2008 where the Appellant was convicted for murder and sentenced to death is hereby affirmed.
Appearances
E. C. Onumajuru Esq.For Appellant
AND
S. A. Njoku Esq. Attorney General, Imo State (with him K. A. Leweanya (Mrs.), Principal State CounselFor Respondent
