EZE v. STATE (2020)

EZE v. STATE

(2020)LCN/14475(CA)

In The Court Of Appeal

(KADUNA JUDICIAL DIVISION)

On Friday, July 03, 2020

CA/K/108A/C/2019

Before Our Lordships:

Hussein Mukhtar Justice of the Court of Appeal

Obietonbara O. Daniel-Kalio Justice of the Court of Appeal

Oludotun Adebola Adefope-Okojie Justice of the Court of Appeal

Between

CHRIS EZE APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

PRESUMPTION OF MISCARRIAGE OF JUSTICE

Now, the position of the law previously was that a presumption arises from the failure of a judge to perform the public duty of adjudication within the time prescribed in the Constitution. That presumption is that of miscarriage of Justice. See ODI & ANOR V. OSAFILE & ANOR (1985) LPELR-2212 (SC). However that position has changed. The position now as held by the Supreme Court is that a judgment delivered after 90 days is valid except an appellant can satisfy the Court that the non-delivery of the judgment within the stipulated time has occasioned a miscarriage of justice to him. See AKOMA & ANOR V. OSENWOKWU (2014) LPELR-22885 (SC); OWOYEMI VS. ADEKOYA (2003) 18 NWLR (Pt. 852) 307. This position is in consonance with Section 294 (5) of the 1999 Constitution (as amended) which says that the decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of subsection (1) of Section 294 unless the Court exercising jurisdiction by way of appeal from or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof. It is now for this Court being the Court exercising jurisdiction by way of appeal, to see if the appellant who is the party complaining, has suffered a miscarriage of justice by reason of the non-delivery of the judgment within 90days of the delivery of addresses of counsel. To establish this, it is not enough to show that there has been a miscarriage of justice. The complainant must go further be show that the failure to deliver the judgment within the 90 days prescribed in the Constitution caused the miscarriage of justice. To establish that is certainly not a stroll in the park. PER DANIEL-KALIO, J.C.A.

FACTORS TO BE CONSIDERED BY THE COURT BEFORE A RETRACTED CONFESSIONAL STATEMENT OF AN ACCUSED PERSON IS ADMITTED

The law is that when a statement has been admitted as a confessional statement and the accused later retracts it in his evidence, the Court when considering the weight to be attached to it must consider the following: (1) is there anything outside the confessional statement to show that it is true or real?; (2) is it corroborated?; (3) are the relevant statements made in it of facts true as far as can be tested?; (4) did the prisoner have the opportunity of committing the offence?; (5) is his confession possible; and (6) is it consistent with other facts which have been ascertained and have been proved? If the confessional statement passes these tests a conviction founded on the confessional statement will be upheld. SeeOGUDO V. STATE (2011) LPELR-860 (SC); DAWA V. THE STATE (1980) 8-11 SC 236. PER DANIEL-KALIO, J.C.A.

WHETHER OR NOT AN UNCORROBORATED RETRACTED CONFESSIONAL STATEMENT SHOULD BE TAKEN WITH CAUTION

Since the six tests designed to ensure that the retracted confessional statement was reliable were never considered or applied, the lower Court was wrong to have convicted the Appellant based on his retracted confessional statement. Surely, a retracted confessional statement that is uncorroborated should be taken with some caution and a conviction on it should be upheld when the six tests in DAWA V. THE STATE (1980) 8 – 11 SC 236 have been passed. See OGUDO V. THE STATE (Supra). This will be when proof beyond reasonable doubt can best be seen. As Denning J (as he then was) stated in the case of MILLER V. MINISTER OF PENSIONS (1947) 2 ALL ER 372, 373 cited in LORI & ANOR V. STATE (1980) FNLR 475 at 483-484 “if the evidence is so strong against a man as to leave only a remote possibility in his favor which can be dismissed with the sentence ‘of course it is possible, but not the least probable’ the case is proved beyond reasonable doubt but nothing short of that will suffice.” PER DANIEL-KALIO, J.C.A.

OBIETONBARA O. DANIEL-KALIO, J.C.A. (Delivering the Leading Judgment): At the High Court of Kaduna State (the lower Court) before Bilikisu Mohammed J, the Appellant and three others were charged with two counts. The first was that on or about the 3rd day of July, 2013 the Appellant, Chris Eze and the others named in the charge sheet, agreed among themselves to commit the offence of Armed Robbery against one Mr. John Tabat and thereby committed the offence of conspiracy to commit armed robbery under Section 6 (b) of the Robbery and Firearms (Special Provisions) Act Cap R 11 Laws of the Federation, 2004. The second was that the Appellant and the others named in the charge sheet, on or about the 3rd day of July, 2013, at about 9pm, armed themselves with a gun, attacked one Mr. John Tabat and his family at his residence in Kaduna and robbed them of three mobile phones, the sum of N6,000,00, three ATM Cards and a Toyota Camry car with Reg. No. BQ 629 GWA and thereby committed the offence of Armed Robbery, punishable under Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap R 11 Laws of the Federation, 2004. Of the four persons named in the

charge, only the Appellant who was the first accused and the second and fourth accused persons, stood trial. The third accused person was not found. The learned trial judge after hearing the evidence of three prosecution witnesses comprising the victim of the crime Mr. John Tabat who testified as PW1 and two policemen who investigated the crime and who testified as PW2 and PW3 respectively, and also after hearing from the Appellant and the two others who stood trial and further, after considering the submissions of learned counsel for the prosecution and the defence, gave judgment on the 19th day of November, 2018. The learned trial judge found the 4th accused person not culpable and therefore discharged and acquitted him. He however found the Appellant and the 2nd accused person guilty as charged and therefore sentenced them to death. Dissatisfied with the judgment, the Appellant filed a Notice of Appeal in which he appealed against the judgment on six grounds.

Briefs of Argument were filed by both parties in this Appeal. In the Appellant’s Brief of Argument settled by Dele Oye, Esq. three issues were distilled for the Court to consider and determine.

The three are-
(1) Whether the failure of the trial judge to deliver the judgment within the constitutionally prescribed timeframe did not occasion a miscarriage of justice against the Appellant;
(2) Whether the learned trial judge was right in convicting and sentencing the Appellant primarily on the uncorroborated and retracted confessional statement of the Appellant especially when the Respondent failed to prove the elements of the offences beyond reasonable doubt; and
(3) Whether the decision of the learned trial judge can be sustained taking into consideration the failure of the trial Court to consider the defence raised by the Appellant.

The Respondent’s Brief was settled by Chris A. Umar, Esq. Solicitor-General of Kaduna State. The Respondent, in the said Brief, agreed with the issues formulated by the Appellant. The issues as couched by the Appellant were however slightly modified by the Respondent. I do not see the need to reproduce the issues as modified by the Respondent. Suffice it that they are very much the same as those formulated by the Appellant except that the wordings of the issues by the Respondent are slightly

different.

On issue 1 which has to do with miscarriage of justice on account of the delivery of the judgment by the lower Court outside the constitutionally prescribed period for judgment delivery, the Appellant referred to Section 294 (1) of the Constitution of the Federal Republic of Nigeria (as amended). He submitted that by virtue of that Constitutional provision, the learned trial judge was expected to deliver his judgment within 90 days after adoption of final written addresses by learned Counsel. The learned trial judge he contended, delivered the judgment now on appeal, one year and five months after adoption of final written addresses. He noted that the lower Court adjourned the matter to the 27th of April, 2017 for adoption of written addresses and that it was not until the 19th of November, 2018 that the learned judge delivered his judgment. He contended that the trial judge did not offer any explanation for the inordinate delay in delivering the judgment. It was submitted that the judgment, having been delivered way beyond the period prescribed in the Constitution, was a nullity. While accepting that a judgment delivered outside the period

prescribed by the Constitution will not be readily declared a nullity if such a judgment did not occasion a miscarriage of justice, learned Counsel submitted that in this instance, the failure of the lower Court to deliver judgment within the time prescribed by the Constitution, occasioned a miscarriage of justice. Explaining why he came to this view, the Appellant’s learned Counsel contended that at the time the judgment was delivered the trial judge no longer had a clear recollection of the demeanor of the witnesses. As a result of the long passage of time between the adoption of the written addresses of Counsel and the delivery of the judgment, the lower Court, it was submitted, lost touch with the details of the case. Learned Counsel referred to the judgment of the lower Court at pages 83 to 103 of the Record of Appeal, and submitted that the lower Court failed to consider some vital issues raised by the Appellant’s learned Counsel in his final address. Such vital issues he submitted, included the issue of the non-tendering of the statement of the Appellant made to the Police at the Sabo Division of the Police Station and the issue of the lower

Court not linking Exhibits P4, P5, P6, P6A and P6B to the Appellant as well as the others arrested and charged to Court with him. Such failure, he submitted, led to a miscarriage of justice. We were urged to set aside the judgment of the lower Court.

In his argument in response, the Respondent’s learned Counsel agreed that the judgment of the lower Court was delivered outside the period prescribed in the Constitution. He contended that the judgment was delivered eight months after the final addresses of Counsel instead of being delivered within 90 days of the final addresses as prescribed by the Constitution in Section 294 (1) of the 1999 Constitution (as amended). Learned Counsel referred however to Section 294 (5) of the Constitution which states that “the decision of a Court shall not be set aside or treated as a nullify on the ground of non- compliance with the provisions of subsection (1) of this section unless the Court exercising jurisdiction by way of appeal from or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof”. It was submitted that from this Constitutional provision, a

judgment delivered outside the prescribed period of 90 days, can only be rendered a nullity where the judgment is shown to have occasioned a miscarriage of justice by reason of the delay in delivering the judgment within the 90 days period. The burden of establishing that a miscarriage of justice has been occasioned as a result of the delay in delivering the judgment he submitted, is on the party alleging the miscarriage of justice. Learned Counsel cited a number of cases including OGUNDELE V. FASU (1999) 12 NWLR (Pt. 632) 662 at 633, 676 & 689 SC; WALTER V. SKY II (NIG.) LTD (2001) 3 NWLR (Pt. 701) p.438; IGWE V KALU (2002) 5 NWLR (Pt. 761) 678 SC. It was submitted that the Appellant has not shown that a miscarriage of justice occurred by reason of the judgment having been delivered outside the period of 90 days prescribed in the Constitution. It was further submitted that the main complaint of the Appellant was not that facts were incorrectly remembered or summarized but rather, that the wrong inferences or conclusions were drawn from the facts. Learned Counsel contended that the same decision could have been arrived at regardless of whether the judgment

was delivered within or outside the period of 90 days prescribed in the Constitution. Submitting further, it was argued that the submission of the Appellant’s learned Counsel was a mere criticism of the findings of the lower Court and that it did not in any way show how the delay in delivering the judgment resulted in a miscarriage of justice.

Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of subsection (1) of Section 294 unless the Court exercising jurisdiction by way of appeal from or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof. It is now for this Court being the Court exercising jurisdiction by way of appeal, to see if the appellant who is the party complaining, has suffered a miscarriage of justice by reason of the non-delivery of the judgment within 90days of the delivery of addresses of counsel. To establish this, it is not enough to show that there has been a miscarriage of justice. The complainant must go further be show that the failure to deliver the judgment within the 90 days prescribed in the Constitution caused the miscarriage of justice. To establish that is certainly not a stroll in the park. In the matter on appeal, the complaints of the Appellant with regard to miscarriage of justice are that (1) the delay in delivering the judgment was such that the learned trial judge no longer had a clear recollection of the demeanor of the witnesses; and

(2) the Court lost touch of the details of the case and was unable to link the Appellant to the Exhibits tendered in Court. It seems to me that these complaints about miscarriage of justice even if they exist, have not been linked to any delay in the delivery of the judgment of the lower Court. An appellant in trying to persuade the Court that there has been a miscarriage of justice by reason of a failure to deliver judgment within the period prescribed by the Constitution, must not stop at merely complaining that there has been a miscarriage of justice, but must go further to show that it was the inordinate delay in delivering the judgment that resulted in the miscarriage of justice complained about. The Appellant failed to so establish that in this case.

I now turn to issue 2. On issue 2 which is whether the learned trial judge was right in convicting and sentencing the Appellant primarily on the uncorroborated and retracted confessional statement of the Appellant especially when the Respondent failed to prove the elements of the offences beyond reasonable doubt, the Appellant’s learned Counsel submitted that for a confessional statement to be reliable,

it must conform with the provisions of Sections 28 and 29 of the Evidence Act, 2011. Learned Counsel submitted that the lower Court failed to test the truth of the Appellant’s confessional statement through reference to any evidence outside the confessional statement and that the lower Court also failed to caution itself about whether the confessional statement was indeed the confessional statement of the Appellant. On the need to ensure that the confessional statement was made by the Appellant, learned Counsel cited the case of OGUNYE V. STATE (1999) 5 NWLR (Pt. 604) 548 at 578. On the question of tests for the truth of the confessional statement, the Appellant’s learned counsel submitted that the six tests in R v. SYKES 18 CR APP 233 which tests have been approved and applied in numerous cases including KANU V. R 14 WACA 30; DAWA V STATE (1980) 8-11 SC 236 were never applied by the lower Court before that Court relied on the Appellant’s confessional statement in convicting him. It was contended that the prosecution witnesses relied on mere speculation in their evidence in Court as to the commission of the offences by the Appellant. Learned Counsel

argued that the confessional statement was not made in the presence of a Legal Practitioner of the Appellant or in the presence of an officer of the Legal Aid Council or an official of a Civil Organization as now desirable. He cited the case of NWAKUCHE JERRY NNAJIOFOR V F.R.N. (2018) LPELR-43925. It was also submitted that the lower Court did not look at the defences of the Appellant before convicting and sentencing him.

In his argument in response, the Respondent’s learned Counsel submitted that when the confessional statement of the Appellant was about to be tendered, the Appellant’s learned counsel raised no objection to the tendering of the statement. It was submitted that the confessional statement of the Appellant was corroborated by the evidence of PW1. He referred to the evidence of PW1 at p. 99-100. As regarding the submission that a confessional statement should be taken in the presence of an accused person’s legal practitioner, it was submitted that the Appellant never asked for the presence of his Legal Practitioner or Counsel from the Legal Aid Council. While acknowledging that the Administration of Criminal Justice Law, 2017 of Kaduna State

in Section 39 (2) thereof provides that a statement by a suspect be taken in the presence of his Legal Practitioner or in the presence of an official of a civil organization or any other person chosen by the suspect, that law he submitted, did not make such a practice compulsory considering the use of the word ‘may’ used in the wording of the said Section 39 (2) of the Administration of Criminal Justice Law. Besides, he argued, the Administration of Criminal Justice Law of Kaduna State only came into force in 2017 which is long after the 3rd of July, 2013 when the Appellant and the others committed the offences for which they were charged and long after the filing of the charge against the Appellant and the others on 16th June, 2014.

After reading the judgment of the lower Court, it is clear that the judgment of that Court was based on the retracted confessional statement of the Appellant. The law is that when a statement has been admitted as a confessional statement and the accused later retracts it in his evidence, the Court when considering the weight to be attached to it must consider the following: (1) is there anything outside the confessional

statement to show that it is true or real?; (2) is it corroborated?; (3) are the relevant statements made in it of facts true as far as can be tested?; (4) did the prisoner have the opportunity of committing the offence?; (5) is his confession possible; and (6) is it consistent with other facts which have been ascertained and have been proved? If the confessional statement passes these tests a conviction founded on the confessional statement will be upheld. SeeOGUDO V. STATE (2011) LPELR-860 (SC); DAWA V. THE STATE (1980) 8-11 SC 236. The question now is: did the lower Court subject the Appellant’s retracted confessional statement to these tests and did the confessional statement pass the tests? Looking at the judgment, the simple answer is NO. The Respondent’s learned Counsel argued that the Appellant’s confessional statement was corroborated by the evidence of PW1. That however was not the finding of the learned trial judge. As a matter of fact, the lower Court did not subject the confessional statement to any of the six tests mentioned above. Even if one was to consider the submission of the Respondent’s learned Counsel that the confessional statement was

corroborated by the evidence of PW1 one would find that the evidence of PW1 did not provide the required corroboration. The evidence of PW1 did not link the Appellant to the crime as he never said in his evidence that he saw the Appellant during the robbery. Rather, his evidence was that it was his wife that saw the robbers. This is the evidence of PW 1 at page 63 of the Record of Appeal: “My wife looked at them while she was seated in the parlor and one of them said ‘ if you look at us again I will waste you’. …”At page 65 of the Record of Appeal, PW1 testified that at the Police Station, it was his wife who identified those that carried out the robbery. The evidence of PW1 at best, shows that a robbery took place in his house. He never said he saw the Appellant as one of the robbers. He also never said he recognized the Appellant at the Police Station. He therefore did not link the Appellant to the commission of the offence as to make his evidence to be corroborative of the retracted confessional statement of the Appellant. Why the wife of PW 1 who was said to have seen the robbers that came to the PW1’s house on that fateful day was not called to

testify, remains a puzzle. Since the six tests designed to ensure that the retracted confessional statement was reliable were never considered or applied, the lower Court was wrong to have convicted the Appellant based on his retracted confessional statement. Surely, a retracted confessional statement that is uncorroborated should be taken with some caution and a conviction on it should be upheld when the six tests in DAWA V. THE STATE (1980) 8 – 11 SC 236 have been passed. See OGUDO V. THE STATE (Supra). This will be when proof beyond reasonable doubt can best be seen. As Denning J (as he then was) stated in the case of MILLER V. MINISTER OF PENSIONS (1947) 2 ALL ER 372, 373 cited in LORI & ANOR V. STATE (1980) FNLR 475 at 483-484 “if the evidence is so strong against a man as to leave only a remote possibility in his favor which can be dismissed with the sentence ‘of course it is possible, but not the least probable’ the case is proved beyond reasonable doubt but nothing short of that will suffice.” The confessional statement of the Appellant was not so strong as to have left only a remote possibility in his favour. On the contrary, the

retracted and uncorroborated confessional statement of the Appellant constituted a very weak evidence against him. All said, I agree with the Appellant’s learned Counsel that the confessional statement was not corroborated and that the lower Court neither referred to nor applied the six tests mentioned above which tests were first laid down in the English case of R V SYKES (1913) 1 CR APP. R. 233. The lower Court ought not to have relied on the said confessional statement in convicting the Appellant. It was very unsafe to have relied on it.

On issue 3 which is that the lower Court did not consider the defence of the Appellant, the Appellant’s learned Counsel referred to page 75 of the Record of Appeal where the Appellant gave evidence that he was at home on 3/7/13. It was submitted that the defense of alibi was never investigated by the Respondent. It was contended that the lower Court ought to have considered the defence of the Appellant no matter how weak or mundane. Learned Counsel cited KALU V. STATE (2017) 14 NWLR (Pt. 1586) p. 522 at 559-560; OKO V. STATE (2018) 1 NWLR (Pt. 1600) p. 216 at 238.

In his argument in response, the Respondent’s

learned Counsel submitted that the evidence of the Appellant at page 75 of the record of Appeal referred to by the Appellant’s learned Counsel could not have assisted his case as the Appellant ought to have raised his alibi at the first opportunity, which would have been when he wrote his statement, and not during his trial. He contended that the alibi raised by the Appellant is an afterthought. He cited the case of ILODIBE UCHE V. STATE (2015) 11 NWLR (Pt. 1470) page 380 at 396-397. I agree with the Respondent’s learned Counsel. The proper time to raise an alibi is at the earliest opportunity such as when the accused person makes his statement to the Police. The alibi will state where he was and other relevant particulars such as those who were with him at that place. When that is done, the Police will have a duty to check out his alibi to see if it can disprove it. See ABUDU V. STATE (1985) 1 NWLR (Pt. 1) p. 55 at p. 59. Raising the alibi during trial was too late because at that stage, it was impossible for the Police to investigate it. The alibi was therefore worthless and an afterthought. See SMART V STATE (2016) LPELR- 40827 (SC).

Let me in closing say that it is not for nothing that the standard of proof in criminal cases is proof beyond reasonable doubt and not on a balance of probability. This is because a verdict in a criminal case where it goes against an accused, is capable of depriving him of his liberty and depending on the gravity of the offence, depriving him even of his very life. Therefore, a judge must act with utmost circumspection in deciding a criminal matter. He must weigh every piece of evidence carefully and critically. In short, he must leave no stone unturned. Where there are any doubts, he must give the accused the benefit of such doubt. I think it was Benjamin Franklin that said “it is better 100 guilty persons should escape than that one innocent person should suffer”. There was nothing aside the confessional statement that tended to show that the Appellant committed the offences. The wife of the PW1 who was said to have seen the accused persons during the commission of the crime was not called to testify. In my view, the judgment of the lower Court left much to be desired. The case against the Appellant was not proved beyond reasonable doubt. I am therefore of the firm view that

the appeal has merit, in spite of the fact that issues 1 and 3 were resolved against the Appellant. Consequently, I allow the appeal. The judgment of the lower Court is set aside. In its place, the Appellant is hereby discharged and acquitted.

HUSSEIN MUKHTAR, J.C.A.: I was privileged to preview the judgment rendered by my learned brother. Obietonbara O. Daniel- Kalio, JCA. I agree with and adopt the eloquent reasoning and conclusion therein.

The prosecution’s failure to call victim of the alleged offence, an eye witness to testify and identify the Appellant has shortened the adduced evidence to fall below the required standard in criminal cases of proof beyond reasonable doubt. The Appellant was therefore entitled to resolution of such doubt in his favour.

It therefore follows that the appeal has merit, the fact that issues 1 and 3 were resolved against the Appellant notwithstanding. I fully agree that the appeal should be and is hereby allowed.
I subscribe to the consequential orders made in the judgment.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have had a preview of the judgment of my learned brother O. O. DANIEL-KALIO JCA, where

the facts and issues in contention have been succinctly set out. I agree with my learned brother’s reasoning and conclusions and also allow the appeal, with the consequential orders made.

Appearances:

DELE OYE, ESQ. For Appellant(s)

CHRIS A. UMAR. ESQ. For Respondent(s)