FRANK IYARE v. THE STATE
(2019)LCN/13294(CA)
In The Court of Appeal of Nigeria
On Friday, the 17th day of May, 2019
CA/B/151C/2017
JUSTICES
CHIOMA EGONDU NWOSU-IHEME Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
FRANK IYARE Appellant(s)
AND
THE STATE Respondent(s)
RATIO
WHETHER OR NOT IT IS EVEY FAILURE BY THE POLICE THAT IS FATAL TO THE CASE OF THE PROSECUTION
Again the Appellant?s belated story of his arrest for a traffic offence does not avail him of a defence of alibi and failure of the I.P.O. to give evidence in that regard is not fatal to the Respondent?s case. See OLATINWO V THE STATE (2013) 8 NWLR (Pt. 1355) 126 @ 146 C? F. where the Court thus held:
?It is settled law that it is not every failure by the Police to investigate an alibi by an accused person that is fatal to the case of the prosecution.? Again the police are not expected to go on a wild goose chase in order to investigate an alibi. Any accused person setting up alibi as a defence is also duty bound to give the police at the earliest opportunity some tangible and useful information relating to the place he was and the persons with whom he also was. PER EKPE, J.C.A.
PHILOMENA MBUA EKPE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of Honourable Justice J. U. Oyomire of the Edo State High Court at the Benin Criminal Division Court 3 delivered on the 29th of September, 2016, wherein the Appellant, along with 4 others, was arranged on a two-count charge of conspiracy to commit armed robbery and armed robbery punishable under Section 1(2)a of the Robbery and Firearms (Special Provisions) Act Cap 398, Laws of the Federation of Nigeria 1990.
The charge reads as follows:
COUNT I:
That you Frank Iyare (m), Godspower Evbohimen (m), Ikechukwu Owuoha (m), Mike Samuel (m) and Akhere Bright (m) on or about the 31st day of July, 2007 at No. 10, Osarieme Street, Urora Quarters, Ikpoba Hill, Benin City, in the Benin Judicial Division conspired with one another to commit a felony to wit: Armed Robbery and thereby committed an offence contrary to Section 5(b) and punishable under Section 1(2)a of the Robbery and Firearms (Special Provisions) Act Cap 398 Laws of the Federation of Nigeria 1990.
COUNT II:
That you Frank Iyare (m), Godspower Evbohimen (m), Ikechukwu
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Owuoha (m), Mike Samuel (m) and Akhere Bright (m) on or about the 31st day of July, 2007 at No. 10, Osarieme Street, Urora Quarters, Ikpoba Hill, Benin City in the Benin Judicial Division did rob one Abdul Azeez of the sum of N38,000, recharge card valued at N80,000, Nokia 1860, Nokia 1100, Nokia 3315 handsets and Motorola razor G.S.M. handset and at the time of the robbery you were armed with offensive weapons to wit: gun and battle axe and thereby committed an offence contrary to Section 1(2)a of the Robbery and Firearms (Special Provisions) Act Cap 398 Laws of the Federation of Nigeria 1990.
The Prosecution called 3 witnesses while the Defendant produced no witnesses.
In the Appellant?s defence, he stated that sometime in the year 2007, he took a passenger from 2nd East Circular Road, Benin City to Ramat Park for a fare of N50 while working as a commercial motor cyclist. As he dropped the passenger, a Traffic Warden arrested him for dropping the passenger on an unauthorized place. His attempt to bribe the Traffic Warden with N120 was rebuffed by the Traffic Warden who ordered his assistant to take the Appellant to the Police Station. The
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attempt of the Appellant to escape was frustrated by 2 policemen who pursued and apprehended him.
He was taken to Oregbeni Police Station where he was told that he had injured the Traffic Warden while trying to escape from him. When the Traffic Warden came to the Station, the Appellant noticed injuries on his leg and hand. The Appellant made a statement to the Police at Oregbeni Police Station. The owner of the motor cycle the Appellant was using produced its particulars to the Police.
The Appellant was later transferred to another Police Station where a Police Officer recorded his name and locked him up in a cell. The next morning, he was taken to an office where he met 3 policemen. He was asked to explain what led to his arrest. He did but it was not recorded. A paper was brought out and he was ordered to sign the statement contained therein. When he refused to do so, he was tied like a crocodile and hit on the chest with something. He fainted but regained consciousness in the cell.
?
That night he was again taken out of the cell to, where he was ordered to sign the statement. He initially refused to do so but when he was shown 2 corpses covered
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with zinc, he quickly signed same. He was later charged to Court. He denied robbing anyone or taking the police to arrest the 2nd accused person.
At the close of defence, learned counsel for the contending parties were given time (limit) to file their respective written addresses but A. O Egbulem for the Appellant failed to do so.
The Appellant however was positively identified by PW2 (Abdul Azeez) as one of the robbers when he met him at his compound and also at the police station premises after the robbery.
When the Appellant?s statement was tendered in Court on 14/2/2013, his counsel raised no objection to the admissibility of the statement but objected to the fact that the statement was not made by the Appellant. However, the story of the Appellant was not given to the Police timeously or at all in order for it to be investigated.
The Appellant was found guilty of the offences of conspiracy to commit armed robbery and armed robbery and was accordingly sentenced to death.
Dissatisfied with the said Judgment, the Appellant has hereby filed a Notice of Appeal.
NOTICE OF PRELIMINARY OBJECTION:
The Respondent filed a
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Notice of Preliminary Objection dated and filed on 8/12/2017 and 11/12/2017 respectively with 3 major prayers:
1. AN ORDER STRIKING OUT the Appellant?s Notice of Appeal filed on 22nd December, 2016 for lack of a valid signature.
IN ALTERNATIVE TO PRAYER ONE:
2. AN ORDER STRIKING OUT Grounds One and Two in the Appellant?s Notice of Appeal filed on 22nd December, 2016 as they do not arise from the ratio decidendi of the Judgment.
IN ADDITION TO PRAYER ONE OR PRAYER TWO:
3. AN ORDER DISMISSING this appeal in its entirety.
Respondent canvassed two issues for determination in its Notice of Preliminary Objection thus:
1. Whether the Notice of Appeal is competent; and
2. Whether the Notice of Appeal contains any competent ground to sustain it.
ISSUE ONE:
Learned counsel for the Respondent argued that the Notice of Appeal fell short of Order 17 Rule 4(4) of the Court of Appeal Rules 2016 such that the mark made by the Appellant on his Notice of Appeal was not attested to by any witness, thus making the Notice of Appeal liable to be struck out. IKUEPENIKAN V. STATE (2015) 9 NWLR (PT. 1465) 518 at 541 H, 542
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C and 543 F.
The Appellant on the other hand argued that the Appellant?s Amended Notice of Appeal was deemed properly filed and served on the Respondent without any objection. And furthermore that the mark or signature of the Appellant was duly attested to by the Prison Authority and thus the argument canvassed in support of this issue is of no moment.
Opinion
I hereby align myself with the submission of the Appellant on this issue. The Amended Notice of Appeal was indeed attested to by a witness ? the Deputy Controller of Prisons on the 26th of February, 2018. The Issue is thus resolved in favour of the Appellant.
ISSUE TWO:
Respondent submitted that the grounds of appeal contained in the Notice of Appeal do not arise from the Judgment of the trial Court and are therefore liable to be struck out.
Counsel referred to the second to the last paragraphs in Pages 136 and 132 of the Record of Appeal where it was stated by the trial Judge that the testimony of PW3 and the Exhibits tendered are of no relevance to the Court and would not be relied on and that the learned counsel for contending parties were given time to file
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their respective written address which the counsel for the Appellant failed to do.
Page 133 of the Record of Appeal was also referred to where the trial Judge stated that in determining the issue, recourse would be had to the oral and written submissions of contention including the Reply on Points of Law by learned defense counsel of first accused person.
Counsel thus submitted that the Judgment of the Court was based on other grounds which formed the ratio decidendi and not on the testimonies and exhibits from PW3 nor was the Appellant prejudiced for failure of his counsel to file a written address.
In conclusion Counsel stated that this appeal is liable to be struck out on the grounds of (i) incurable defect as to endorsement (ii) failure to contain at least one competent ground of appeal.
Learned counsel for the Appellant on his part contended that there are valid grounds captured in the extant amended Notice of Appeal to sustain this appeal.
?
Counsel stated that the amended Notice of Appeal contained an omnibus ground ? Ground 3 which suo motu was sufficient to sustain an appeal even if the other grounds were adjudged
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incompetent or invalid. ABUBAKAR V. WAZIRI & ORS. (2008) 14 NWLR (PT. 1108) 507 at 533, PARAS. D-E Per Niki Tobi.
Counsel stated that a Motion on Notice rather than a Preliminary Objection should have been filed against any offending ground of appeal. NWAOLISAH V. NWABUFOH (2011) 14 NWLR (PT. 1268) 600 at 625. This is because even if the Preliminary Objection succeeds, the appeal can still not be terminated. Appellant contended that a Preliminary Objection should only be filed against the hearing of an appeal and not against one or more grounds of an appeal.
Counsel also stated that the Preliminary Objection was out rightly misconceived as the scope of a ground of appeal is not necessarily limited to the of the decision complained of or the reason of the decision complained about, since a ground of appeal can arise from other extrinsic factors inherent in the case tried at the Court below. OSADOLOR V. THE STATE (2017) All FWLR (Pt. 895) 1581 at 1624, Paras. C-H.
Opinion:
It is worthy of note to state that the Respondent failed to take into contemplation Ground 3 of the amended Notice of Appeal, thus it may not be far-fetched
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to infer that the Respondent failed to take into cognizance the Amended Notice of Appeal which was filed by a motion dated the 26th of February, 2018 and granted on the 22nd of June, 2018.
Referring to Order 6, Rule 2 of the Court of Appeal Rules 2016 which deals on the contents and requirement of Notice of Appeal and Form 3 which is the Notice of Appeal form, the Appellant is indeed compliant with the Court of Appeal Rules regarding the form of a Notice of Appeal.
Furthermore, as the Appellant rightly submitted, Ground 3, which is an omnibus ground of appeal is enough to sustain this appeal even if the other grounds of appeal are defective.
There is no defect in Ground 3 of the Amended Notice of Appeal and by virtue of those two points and the point highlighted in Issue One above, it is my humble opinion that this Preliminary Objection be struck out and the appeal heard. The preliminary objection is accordingly struck out.
?
The Appellant raised the following as issues for determination:
1. Whether in the face of the inconclusive, inchoate and ineffective evidence of PW3 (the supposed Investigating Police Officer) in this case, the
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Respondent (the Prosecution) can be said to have proved its case beyond reasonable doubt against the Appellant as required by law. GROUNDS ONE AND THREE.
2. Since counsel?s address cannot take the place of evidence on record, was the Court below not duty-bound to consider all defence(s) and evidence which favourably avails the Appellant? GROUND TWO.
The Respondent on the other hand, formulated the following issues for determination:
1. Whether the conviction of Appellant (as charged) by the Trial Court was warranted upon the finding that the Respondent proved its case against the Appellant beyond reasonable doubt. GROUND ONE OF THE NOTICE OF APPEAL.
2. Whether the Appellant suffered any prejudice in the course of the trial particularly with regard to a denial of his right to fair hearing. GROUND 2 OF THE NOTICE OF APPEAL.
I have considered both sets of issues as raised by learned counsel and I have decided to adopt the issues raised and couched by the Appellant to be used in the discourse.
ISSUE ONE:
Learned counsel for the Appellant submitted that it is settled law that it is for the Prosecution to prove its case
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beyond reasonable doubt, and until that is done, the accused person has no duty to call evidence in rebuttal as there is no obligation on him in law to prove his innocence, and the failure of the prosecution to do so will lead to the discharge of the accused person. ONUBOGU V. THE STATE (1974) 9 S.C. 1; (1974) 9 NSCC 358; AIGBADION V. THE STATE (2000) 7 NWLR (PT. 666) 686 at 690 RATIO 6 (S.C.). Counsel also stated that the reason for this is enshrined in Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria (as Amended) and Section 135(1) of the Evidence Act 2011.
Counsel stated that the Respondent never discharged this evidential burden.
He further pointed out that the Court is duty-bound to evaluate the entire evidence adduced by the prosecution in order to come to the conclusion that the Prosecution?s case has been proved beyond reasonable doubt.
?
Counsel stated that from the totality of the evidence adduced in this case on appeal at the trial stage, and the fundamental flaws inherent therein most especially on the part of the learned trial Judge in his findings of facts, there are lingering doubts in the
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Respondent?s case that ought to have been resolved in favour of the Appellant which the Court below failed to do. See R. V. LAWRENCE (1932) 11 N.L.R. 6.
Counsel stated that PW3, the supposed IPO, was not called upon by the Respondent in the main trial for him to be cross-examined by the Appellant, meanwhile Exhibits A and B were tendered and admitted in evidence through PW3 before the Respondent closed its case at the Court below.
Counsel also stated that PW3 gave inconclusive, inchoate and ineffective evidence, and that PW3 was still in the witness box when the Respondent closed its case.
Counsel submitted that it is settled law that a Court or Tribunal should not act on the evidence of a witness whom the other party wanted to cross-examine, but could not be produced or located for cross-examination after the witness must have been examined-in-chief. Counsel stated that the law is that untested evidence of a witness ought to be discountenanced. He cited Section 36(6) d of the 1999 Constitution of the Federal Republic of Nigeria (as Amended); Section 215(1), 216 and 223 of the Evidence Act 2011.
?
Counsel thus submitted that the
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evidence of PW3 and Exhibits ?A? and ?B? tendered through him to the detriment of the Appellant go to naught and ought to have been expunged by the Court.
Counsel referred to the Supreme Court?s dictum in THE STATE V. AIBANGBEE & ANOR. (1988) 3 NWLR (Pt. 84) 548 at 584, Paras. G-H, thus?
?Cross-examination is a powerful and invaluable weapon for the purpose of testing the veracity of a witness and the accuracy and completeness of his story.?
Counsel submitted that to ensure that the tenets of fair hearing is adhered to, the Appellant must be given the opportunity to examine either in person or by his legal practitioner, the witness(s) called by the prosecution.
Counsel again stated that failure of PW3 to present himself for cross-examination was indeed fatal to the Respondent?s case since he was supposed to be the Investigating Police Officer that did the investigation in this instant case now on appeal. The necessary implication was that there was no evidence from PW3 before the Court below. See ISIAKA V. THE STATE (supra) at pages 1971-1972 RATIONES 4-7 (C.A.); AL-MUSTAPHA V. THE STATE ?
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(supra) at pages 364-365, RATIO 23 (C.A.); SHOFOLAHAN V. THE STATE (supra) at pages 296-297 RATIONES 26 &27 (C.A.); OLOMO V. THE STATE (supra) at pages 1032-1033 RATIO 6 (C.A.).
Counsel opined that flowing from the necessary implication above, it also follows therefore that there was no investigation of the two-count charge tried at the Court below. Counsel stated that this thus cast a shadow of doubt as to whether the Appellant?s guilt was actually established beyond reasonable doubt by the Respondent in the trial Court, which doubt must be resolved in favour of the Appellant.
Flowing from the above, Counsel stated that the logical questions to be asked are: Who investigated the two-count charge tried at the Court below? Is it true that what PW1 and PW2 told the Court below was actually the true state of this case as per all that transpired? Are you sure this case was actually reported to the police station? Was there ever a case of this kind reported to the police? Which police station was it reported to? To which police officer? From all said by PW1 and PW2 against the Appellant, and vice versa, which one of these pieces of
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evidence is the Court going to believe without the investigative evidence of the IPO?
Counsel stated that the presumption of the law is that the evidence of PW3 would have been more favourable to the Appellant.
He further submitted that since the Court below fell short of the above requirement, the Appellant was denied his right to fair hearing especially his right to cross-examine PW3.
Counsel stated that the principle of fair hearing entrenched in the Constitution is so fundamental and substantial that a breach of it can nullify the entire proceedings.
Counsel then urged that this issue be resolved in favour of the Appellant.
Learned Respondent?s counsel on the other hand conceded that the failure of a witness to be present for cross-examination renders his testimony unusable by a Court of law. Counsel stated that there was no need to contest the duty of the prosecution to prove its case beyond reasonable doubt as it is not the responsibility of an accused person to prove his innocence but that of the Prosecution to prove the accused person?s guilt.
?
However Counsel stated that the duty of the prosecution to prove a
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case beyond reasonable doubt does not amount to a duty to prove beyond any iota of doubt. OLATINWO V. STATE (2013) 8 NWLR (Pt. 1355) 126 at 149 D-F.
Counsel stated that from the evidence before the Court, the Respondent proved the three ingredients of armed robbery against the Appellant to wit:
a. That there was a robbery or series of robberies.
b. That the robberies were armed robberies.
c. That the accused person was one of the people that committed the armed robbery.
Counsel noted that the Appellant had not argued that any of these specific ingredients were not established by the Respondent but rather made heavy weather of the absence of PW3 for cross-examination. Counsel stated that the trial Court did not rely on the evidence of PW3 in reaching its decision, rather the Court relied on other pieces of evidence before it to decide the fate of the Appellant.
?
Counsel reproduced the holding of the trial Court captured in Page 136 on the Record of Appeal thus:
if the PW4 is juxtaposed with the PW3 the scenario will be the same in the present case and would have the same result. This means that the evidence of
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the PW3 at this trial and the attendant exhibits ? Exhibits A, B, C and D tendered by him are of no relevance to the Court and must be disregarded and discountenanced. They are therefore, of no moment.?
Counsel stated that it was clear that the trial Court did not rely on PW3?s evidence or exhibits tendered by him in reaching its conclusion, but rather placed reliance on the evidence of PW2 who was a direct victim of the armed robbery and who positively and unequivocally identified the 1st Accused person as one of the armed robbers (Page 138 of the Record of Appeal).
Counsel therefore humbly submitted that the failure to call the IPO was not fatal to the case of the prosecution. The case of UTTEH V. THE STATE (1992) 2 NWLR (Part 223) at 257 was referred to where the Appellant contended that the failure to call the complainant as a witness was fatal to the case of the prosecution but OMO JSC held thus:
?Since there was enough evidence to support the pivot charge of demanding with menaces in the absence of the complainant Dante Noaro, the answer to the first issue posed must be in the affirmative. It is not correct as
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submitted by Appellant?s counsel that there was a gap in the evidence that only Dante can fill.?
OPINION:
After considering the contentions of both parties, it is observed that the learned trial Judge indeed placed no reliance on the testimony of PW3 or the exhibits tendered through him.
From the Record of Appeal, the learned trial Judge placed reliance on the testimony of PW2, the victim who positively identified the Appellant as the perpetrator of the offences contained in Counts 1 and 2.
I shall however endeavour to reproduce an excerpt from the decision of the learned trial Judge at page 136 of the record as follows:
?If the PW4 is juxtaposed with the PW3 the scenario will be the same in the present case and would have the same result. This means that the evidence of the PW3 at this trial and the attendant exhibits ? Exhibits A, B, C and D tendered by him are of no relevance to the Court and must be disregarded and discountenanced. They are therefore, of no moment.?
From the above passage, it can be deduced that the trial Court did not place any reliance on the evidence of PW3 and the attendant
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exhibits tendered by him; rather the Court relied heavily on the evidence of PW2 who was a direct victim of the armed robbery and who ?positively and unequivocally identified the 1st Accused Person as one of the armed robbers?. In his evidence, he stated that he was able to identify him that night as there was electricity on that night during the armed robbery. When he saw the 1st Accused Person later in the premises he alerted the Police and this led to the arrest of the 1st Accused Person.
It is also worthy of note that PW2 gave direct positive and unequivocal evidence identify the Appellant as one of the two armed robbers who robbed him of his phones, recharge cards and money. This overwhelming piece of evidence was neither rebutted nor controverted. Again, this Court cannot wish away the fact that the Appellant made a confessional statement which failed the test of the trial within trial conducted at the lower Court. However, the law is quite settled on the point that the evidence of even one convincing witness is sufficient to ground a conviction if the said piece of evidence is accepted and believed by the Court. See MAGAJI V THE NIGERIAN ARMY
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(2008) LPELR 1814 (SC) at Page 65 P ? F.
Failure by the prosecution to call the Investigating Police Officer was therefore not fatal to the case. PW2 had put a nail to the Appellants coffin when he again identified him on his visit to his premises and thus alerted the Police who subsequently arrested him.
Appellant?s position that he was denied the right of fair hearing by his inability to cross-examine PW3 goes to naught as the testimony obtained from PW3 along with the Exhibits tendered through him were not considered by the court in its decision.
The Respondent?s position is also valid to the extent that it confirmed that the trial Court placed no reliance on the testimony and Exhibits of PW3.
This thus implies that the evidence upon which the learned trial Judge arrived at a guilty verdict was the testimony of PW1 and PW2.
?
The Appellant?s defense to the allegation was that he never robbed the victim and that the victim only stated he was the armed robber who robbed him because he saw him at the police station. He stated that the reason he was at the police station was on a totally unrelated issue.<br< p=””
</br<
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The Appellant however, failed to render more details lending credence to his denial of the crimes. The Complainant stated that he had closed for the day and was counting the recharge cards sold and generally taking stock of the sales for the day. Those actions would not have been possible without the presence of illumination. It was in this state that the armed robbers robbed the complainant as alleged. The faces of the robbers were thus illuminated for mental capture on the part of the complainant. Seeing as the Appellant had his day in Court outside the statement he alleged was not his, he ought to have advanced further evidence in his denial. The Appellant also never raised the defence of alibi as the Respondent postulated because an alibi is a form of defence used in criminal procedure wherein the accused attempts to prove that he or she was in some other place at the time the alleged offense was committed. This issue is therefore resolved in favour of the Respondent.
The late learned jurist Niki Tobi JSC espoused this in the case of ADEBAYO V. THE REPUBLIC (1967) NMLR 391 at 393, LINES 37-40.
ISSUE TWO: Since counsel?s address
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cannot take the place of evidence on record, was the Court below not duty-bound to consider all defence(s) and evidence which favourably avails the Appellant? GROUND TWO.
Learned counsel for the Appellant contended that addresses or submissions of counsel no matter how brilliantly done can never take the place of unchallenged evidence be it oral or by affidavit already before the Court. Counsel stated that no amount of advocacy can change the existence of cold, solid facts already before the Court in the form or evidence. See EKPEYONG V. ETIM (1990) 3 NWLR (PT. 140) 594.
Counsel argued that the Court below had no justification for not considering the defence(s) on record which are in favour of the Appellant with or without the Appellant counsel?s address. Counsel stated that the sin of counsel cannot and should not be visited on the client. Counsel stated that this right of the Appellant to have his defense considered has been expanded to include the consideration of defence available to the Appellant even though not raised by Appellant. ADEBAYO V. THE REPUBLIC (1967) NMLR 391 at 393, LINES 37-40.
?
Counsel argued that the Appellant?s
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defence remains uninvestigated since the supposed IPO (PW3) in this instant case never resurfaced for cross-examination; and that such a failure of the Respondent and the trial Court to consider and examine the aforesaid uninvestigated defence of the Appellant is a failure to perform a vital duty which is likely to lead to a miscarriage of justice which would definitely result in the decision being set aside. OPAYEMI V. THE STATE (1985) 2 NWLR (PT. 5) 101 at 112, Paras. E-F.
Counsel submitted that if the foregoing are apposite and germane, how did the Court below arrive at its finding of facts to justify the conviction of the Appellant in this instant case on appeal. Counsel stated that a finding of fact must be based on credible evidence or reasonable inference drawn from the facts presented by the prosecution in a criminal case or the parties in a civil action.
Counsel submitted that same was the case in the instant matter as the Court wrongly gave its Judgment against the Appellant based on faulty findings of fact, and so the Judgment is completely at variance with the evidence led before the Court.
Counsel stated that an appellate Court can
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only interfere with the findings of fact of the trial Court where the circumstances are such that the findings of facts of the trial Court are patently erroneous and would amount to a travesty of justice to allow the findings to stand.
Learned counsel for the Respondent stated that the Prosecution did in fact prove its case against the Appellant beyond reasonable doubt to warrant a conviction, and that it was probably the Appellant who failed to take into cognizance Section 135(3) of the Evidence Act 2011 thus:
?If the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted on to the defendant.?
Counsel stated that their Lordships would find that the evidence in support of his defence as presented by the Appellant at the trial Court was most feeble, lacking in authenticity and apparently an afterthought. The trial court had this to say:
?The story of the 1st Accused Person in Court in his defence was not given to the Police timeously or at all in order for it to be investigated?
In such a case where the Police was not given the opportunity to
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investigate the new version of what offence he committed to my mind, is of no help to the 1st Accused Person. His defence cannot, in the circumstances induce belief.?
Counsel referred this Court to OPARA V. D.S. (Nig.) LTD. & Anor. (supra) at 362-363 B-B where the Appellant, like the Appellant in this case, failed to appeal against specific findings of the Court of Appeal. The Supreme Court prior to striking out the appeal explained thus:
?The above is one of the two basis on which the learned trial Judge dismissed the case of the appellant?there is no ground of appeal directly attacking the finding on the claim for specific performance. I hold the view that by the Appellant not objecting to that finding by way of an appeal before this Court, Appellant is deemed not to contest that finding and cannot now contend that the finding was contrary to the issues before that Court allegedly arising from the omnibus ground. The above notwithstanding, it is settled law that an appellant challenging a specific finding of Court, as in the instant case, must raise a specific ground of appeal against the decision of the trial Court refusing
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an order of specific performance is that that decision remains binding and conclusive between the parties.?
Counsel stated that it was important to note that the Appellant failed to use the opportunity to discredit the evidence of PW2 under cross-examination neither did he elicit any evidence from PW2 which could be favourable to his case. (Pages 139 to 140 of the Record of Appeal).
Counsel stated that the trial Court in no way prejudiced the Appellant by the failure of his Counsel to file a Written Address, and as such there therefore arises no need for the visitation of the sin of the counsel upon the litigant.
Counsel argued that the contention of the Appellant rather works against his interest. Counsel referred the Court to OLATINWO V. STATE (2013) 8 NWLR (PART 1355) 126 at 149 C where the Court per Ngwuta JSC reiterated the imperativeness of presenting relevant evidence thus:
?Counsel?s address, no matter how erudite, is not substitute for hard evidence of fact established or admitted before the Court. Learned counsel had the opportunity to impeach the credit of any of the witnesses but he failed or neglected to do
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so. See Section 237 of the Evidence Act, 2011.?
Counsel stated that the right of an accused to defend himself as a desideratum of fair hearing is that of opportunity. That opportunity once provided; it is totally at the election of the accused to either exercise or forego it through a counsel of his choice as happened in the instant case. NWEKE V. STATE (2017) 37 WRN 1 (SC) at 24 Lines 5-45.
Counsel stated that they were unaware of any judicial backing for the Appellant?s bare-faced assertion that a Court must look for defences for an Appellant, and that the defense of alibi does not avail the Appellant. Counsel also pointed out that the Police is not expected to investigate every assertion of an alibi but that it rather behooves the defendant to give the police at the earliest opportunity, some tangible and useful information relating to the place he was and the persons with whom he also was.
Counsel stated that the Appellant failed to give the date he was allegedly arrested by the police for the so-called traffic offence.
Counsel thus urged this Court to resolve this issue in favour of the Respondent.
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OPINION:
The question here is: what are the exact defences raised and available to the Appellant? The Appellant has however asserted that it behooves the Court to supply him with any defence available in order to fortify his stance. The Appellant has also cited the case of ADEBAYO V THE REPUBLIC (1967) NMLR 391 AT 393, LINES 37-40 to hold that the Court is duty bound to consider any defence available even if not raised by him. I beg to differ from this point of view as it would amount to the trial Court delving into the arena of justice to search for defences for the Appellant. There is indeed no judicial backing for such an assertion.
Again the Appellant?s belated story of his arrest for a traffic offence does not avail him of a defence of alibi and failure of the I.P.O. to give evidence in that regard is not fatal to the Respondent?s case. See OLATINWO V THE STATE (2013) 8 NWLR (Pt. 1355) 126 @ 146 C? F. where the Court thus held:
?It is settled law that it is not every failure by the Police to investigate an alibi by an accused person that is fatal to the case of the prosecution.?
?Again the police are not expected to go on a wild
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goose chase in order to investigate an alibi. Any accused person setting up alibi as a defence is also duty bound to give the police at the earliest opportunity some tangible and useful information relating to the place he was and the persons with whom he also was.
In sum, failure of the prosecution to call the I.O.P. was not detrimental to the Appellant as he had raised no defence of alibi early enough to warrant or activate any form of investigation by the Police. In conclusion, it is my arden view that there was sufficient cogent evidence before the trial Court as presented by the Respondent to justify the decision reached therein even in the absence of the evidence of PW3. I must also add that failure of the Appellant?s counsel to file a written address did not jeopardize the case of the Appellant in any way neither did the absence of PW3 deny the Appellant the opportunity to make a proper defence.
It is noteworthy that the Appellant failed to object to the testimony of PW2 which to my mind reveals a tacit acceptance of the cold facts as presented by PW2.
?
The learned trial Judge however, at the conclusion of his judgment had this to
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say:
?There is one thing more and I am done. A. O. Egbulem of Learned Defence Counsel failed to come to Court to defend the 1st Accused Person with the required degree of diligence. He failed to file a written address as ordered by Court in line with the extant rules of Court. It is rather unfortunate that a serious case of conspiracy to commit armed robbery was handled by Learned Defence Counsel with such levity. One will wish that counsel defending a man on the gravest of all charges ? both capital offences punishable with death will take their assignment more seriously and diligently, realizing that the very life of their clients well depends on their performance.”
From the totality of all the above summation, this issue is also resolved in favour of the Respondent.
In conclusion, this Court holds that there is indeed no scintilla of merit in this appeal. It fails and is hereby dismissed in its entirety. Accordingly, the judgment and sentences of the trial Court delivered on the 29th day of September 2016 in Suit No. B/53C/2008 is hereby affirmed.
Appeal Dismissed.
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?CHIOMA EGONDU NWOSU-IHEME, J.C.A.: I had the advantage of reading before now, the judgment of my learned brother, P.M.EKPE, JCA in this Criminal appeal just delivered.
I am in agreement with the reasoning and the conclusion arrived at in the lead judgment that this appeal lacks merit and substance.
As a corollary, I shall also dismiss the appeal and uphold the judgment of the trial Court. In doing so, I also affirm the sentence and conviction of the Appellant i.e. death by hanging in Charge No. B/53c/2008, delivered on the 29th of September, 2016.
TUNDE OYEBANJI AWOTOYE, J.C.A.: I entirely agree.
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Appearances:
O.T. Okeke Esq., Legal Aid Officer (P.D.S.S.)For Appellant(s)
O. KeshinroFor Respondent(s)
Appearances
O.T. Okeke Esq., Legal Aid Officer (P.D.S.S.)For Appellant
AND
O. KeshinroFor Respondent
