GOMINA PETER v. THE STATE
(2019)LCN/13565(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 25th day of June, 2019
CA/B/305C/2017
RATIO
PARTIES ARE NOT ALLOWED TO APPROBRATE AND REPROBRIATE IN LAW
The law is settled that litigation, whether civil or criminal, is not a hide and seek game and a party must be consistent as he will not be allowed to approbate over an issue. See Emmanuel Olamide Larmie v. D.P.M.S. Ltd (2005) 18 NWLR (Pt. 958) 438 at 471 472, per Niki Tobi, JSC; Hon. Muyiwa Inakoju & Ors. v. Hon. Abraham Adeolu Adeleke (2007) 4 NWLR (Pt. 1025) 423 at 627; Intercontinental Bank Ltd. v. Brifina Ltd. 2012 3 NWLR (Pt. 1316) 1 at 22, per Mukhtar, JSC (as he then was) and Iliyasu Suberu v. The State (2010) 1 NWLR (Pt. 1176) 494. PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.
COURTS: COURTS ARE NOT ALLOWED TO DETERMINE SENTIMENTS
When a Court is seised of any cause or matter, its duty as a Court of law is only to decide on the facts and the law presented by the parties before it and not on sentiments. See Federal Republic of Nigeria v. Adolphus N. Wabara (2013) 5 NWLR (Pt. 1347) 331 at 357, per Ibrahim Tanko Muhammed, JSC (as he then was), now Ag. CJN). PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.
BIAS: DECISIONS SHOULD BE FREE FROM BIAS AND SUSPICIONS OF BIAS
It has long been recognised and specifically stated that judicial contests or proceedings should not only be free from actual bias of Judges, but must be free from suspicion of bias. See the case of Leeson v. General Council of Medical Education (1889) LR 43 CD; 390, where Fry, L.J. stated as follows:-
I think that it is a matter of public policy that, so far as is possible, judicial proceedings shall not only be free from actual bias or prejudice of the Judges, but that they shall be free from the suspicion of bias or prejudice. PER MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A.
JUSTICE
CHIOMA EGONDU NWOSU-IHEMEJustice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPEJustice of The Court of Appeal of Nigeria
MOORE ASEIMO ABRAHAM ADUMEINJustice of The Court of Appeal of Nigeria
Between
GOMINA PETERAppellant(s)
AND
THE STATERespondent(s)
MOORE ASEIMO ABRAHAM ADUMEIN, J.C.A. (Delivering the Leading Judgment): The appellant was the 2nd accused in charge No. O/IC/2014 wherein he and one Shino Nwoko (M) were charged with the following offences:-
STATEMENT OF OFFENCE: COUNT 1
Conspiracy to commit felony to wit: Kidnapping, punishable under Section 516 of the Criminal Code Law, Cap C21 Vol. 1, Laws of Delta State 2006.
PARTICULARS OF OFFENCE:
Shino Nwoko (m) and Gomina Peter (m) aka Shacool on or about the 8th day of September, 2013, at Ubulu Okiti/Otulu Express way within the Ogwashi-Uku judicial Division, conspired with others now at large to commit a felony to wit: Kidnapping.
STATEMENT OF OFFENCE: COUNT II
Kidnapping punishable under Section 4 (1) of the Delta State Anti-Kidnapping and Anti-terrorism Law, No. 8 Laws of Delta State 2013.
PARTICULARS OF OFFENCE:
Shino Nwoko (m) Aka Shacool on or about the 8th day of September, 2013, at Ubulu Okiti/Otulu Express way within the Ogwashi-Uku judicial Division, unlawfully imprisoned one Eze Obuzome (m) in such a manner that those entitled to have access to him will not know the place
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where he is imprisoned.
STATEMENT OF OFFENCE COUNT III
Demanding with menace punishable under Section 406 of the Criminal Code Law, Cap C21, Vol. 1 Laws of Delta State, 2006.
PARTICULARS OF OFFENCE
Shino Nwoko (m) and Gomina Peter (m) Aka Shacool on or about the 8th day of September, 2013, at Ubulu Okiti/Otulu Express way within the Ogwashi-Uku judicial Division, unlawfully imprisoned one Awele Monye (f) in such a manner that those entitled to have access to her will not know the place where she is imprisoned.
STATEMENT OF OFFENCE COUNT IV:
Kidnapping punishable under Section 4 (1) of Delta State Anti-Kidnapping and Anti-terrorism Law, No. 8 Laws of Delta state 2013.
PARTICULARS OF OFFENCE:
Shino Nwoko (m) and Gomina Peter (m) Aka Shacool on or about the 8th day of September, 2013, at Ubulu Okiti/Otulu Express way within the Ogwashi-Uku judicial Division, unlawfully imprisoned one Isioma Outime (f) in such a manner that those entitled to have access to her will not know the place where she is imprisoned.
STATEMENT OF OFFENCE: COUNT V
Armed Robbery punishable under
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Section 1 (2) (a) of the Robbery and Firearms(Special Provisions) Act, Cap R. 11, Vol. 14, Laws of the Federation of Nigeria, 2004.
PARTICULARS OF OFFENCE:
Shino Nwoko (m) and Gomina Peter (m) Aka Shacool on or about the 8th day of September, 2013, at Ubulu Okiti/Otulu Express way within the Ogwashi-Uku judicial Division, robbed Isioma Outime of her handset with Sim number 08085961486 and at the time of the robbery, you were armed with a gun.
STATEMENT OF OFFENCE: COUNT VI
Armed Robbery punishable under Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap R. 11, Vol. 14, Laws of the Federation of Nigeria, 2004.
PARTICULARS OF OFFENCE:
Shino Nwoko (m) and Gomina Peter (m) Aka Shacool on or about the 8th day of September, 2013, at Ubulu Okiti/Otulu Express way within the Ogwashi-Uku judicial Division, robbed Uche Dike (m) of his handset and at the time of the robbery, you were armed with a gun.
STATEMENT OF OFFENCE: COUNT VII
Rape punishable under Section 358 of the Criminal Code Cap C21 volume 1 Laws of Delta State 2006.
PARTICULARS OF OFFENCE:
Shino Nwoko (m) and Gomina Peter (m) Aka Shacool on or about the 8th day of September,
3
2013, at Otulu within the Ogwashi-Uku judicial Division have carnal knowledge of Peace Awele Monye (f) without her consent.
STATEMENT OF OFFENCE: COUNT VIII
Rape punishable under Section 358 of the Criminal Code Cap C21 volume 1 Laws of Delta State 2006.
PARTICULARS OF OFFENCE:
Shino Nwoko (m) and Gomina Peter (m) Aka Shacool on or about the 8th day of September, 2013, at Otulu within the Ogwashi-Uku judicial Division have carnal knowledge of Isioma Outime (f) without her consent.
STATEMENT OF OFFENCE: COUNT IX
Demanding with menace punishable under Section 406 of the Criminal Code Law, Cap C21, Vol. 1 Laws of Delta State, 2006.
PARTICULARS OF OFFENCE
Shino Nwoko (m) and Gomina Peter (m) Aka Shacool on or about the 8th day of September, 2013, at Otulu within the Ogwashi-Uku judicial Division, with intent to steal, demanded the sum of N30,000,000.00 (Thirty Million naira) from Mrs Eze Rose (f) with threat to kill her husband Eze Obuzome (m) if the money is not paid to you.
At the end of trial, the trial Court High Court of Delta State, per Hon. Justice M.O. Omovie, convicted and sentenced the appellant as
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follows:
SENTENCE: counts 2, 3 and 4 of the information carries a mandatory sentence. The Accused person is accordingly sentenced as follows:-
COUNT 1 5 years imprisonment without an option of fine I.H.L.
COUNT 2 The sentence of this Court upon you Gomina Peter Aka Shacool is that you be hanged by the neck until you be dead. May the Lord have mercy on your soul.
COUNT 3 The sentence of this Court upon you Gomina Peter Aka Shacool is that you be hanged by the neck until you be dead. May the Lord have mercy on your soul.
COUNT 4 The sentence of this Court upon you Gomina Peter Aka Shacool is that you be hanged by the neck until you be dead. May the Lord have mercy on your soul.
COUNT 9 3 years imprisonment without an option of fine I.H.L.
Being dissatisfied, the appellant lodged an appeal to this Court and distilled, in his brief filed on 16/08/2017, the following issues for determination:-
1. Whether the learned trial judge was not right to have convicted the appellant on counts 1, 2, 3, 4 and 9 based on the hearsay evidence of PW1 and PW2 as well as the
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evidence of the Chachoal contained in Exhibit D as the appellants Alias.
2. Whether the judgment of the trial Court as it affects the appellants conviction in counts 1, 2, 3, 4 and 9 is unreasonable, unwarranted and cannot be supported by weight of evidence.
Learned counsel for the respondent identified a sole issue for determination, in the respondents brief filed on 09/03/2018 but deemed filed on 14/03/2018, as follows:-
Whether the learned trial judge was right in law when he held that the prosecution proved the case of conspiracy to commit kidnapping, kidnapping and demanding with menace against the appellant beyond reasonable doubt?
I agree that a single issue is sufficient to determine this appeal and the issue can be framed thus:-
Whether or not the offences of conspiracy to commit kidnapping, kidnapping and demanding with menaces, of which the appellant was convicted, were proved beyond reasonable doubt.
The learned counsel for the appellant argued that the trial Court was wrong to have convicted the appellant on the hearsay evidence
6
of PW1 and PW2 as well as the evidence of a name Charchoal contend (sic) in Exhibit D as the appellants Alias. It was contended that the evidence of PW1 and PW2, relied on by the trial Court did not establish the presence of the person known as Shacool at the scene or the truth of the fact that Eze Obuzome who hitherto, was not a witness during trial, actually mentioned the name of Shacool as one of the criminals present at the scene of their hostage. The appellant further contended that assuming, without conceding that the name Shacool was actually mentioned by Eze Obuzome, does it mean or sound the same as Charchoal?
Learned counsel for the appellant urged the Court to set aside the judgment of the trial Court because it was predicated upon the following:-
a. Hearsay evidence of PW1 and PW2
b. A portion of Exhibit A which is a retracted extra judicial statement of PW2, wherein she said that she had (sic) Eze saying Shacool please help us.
c. A portion of Exhibit D, being the appellant extra judicial statement with
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special emphasis in his Alias CHACHOAL.
On the meaning of hearsay evidence, learned counsel referred the Court to Section 37 of the Evidence Act, 2011 and the case of Sylvester Utteh v. The State (2019) 9 ACLR 448 at 472.
Relying on the cases of Fatai Olayinka v. The State (2008) 6 ACLR 194 and Agbaje v. Adigun (1993) 1 NWLR (Pt. 169) 261, learned counsel for the appellant argued thus:-
The appellant submits that it is trite in law that when an evidence has been wrongly admitted like in this present case, it is not a legal evidence and the Court has not only a duty to expunge it from the record but has a duty also not to rely on it in reaching its ultimate decision. The same law it is, that any finding or decision based on hearsay or inadmissible evidence would be perverse and an Appellate Court faced with such a situation has a duty to intervene.
Counsel contended that the appellants conviction was not based on admissible, competent and credible evidence but on the speculation and suspicion of the trial Court which misconceived the appellants alias CHARCHOAL which though was
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denied by the appellant to mean the same as SHACOOL alleged to have been mentioned by Eze from the evidence of PW1 and PW2. After referring to the cases of Nweke Onah v. The State (1985) 3 NWLR (Pt. 12) 236 and Michael Adebayo v. The State (2008) 6 ACLR 372, learned counsel argued that suspicion, however, cannot ground a conviction.
Mr. O.F. Enenmo (Director of Appeals, Delta State Ministry of Justice) who settled the respondents brief, analysed the facts of the case and the judgment of the trial Court and submitted that the appellant was not properly identified by the prosecution witnesses as one of the persons who committed the offences with which he and his co-accused were charged. He then comprehensively stated on pages 7 9 of the respondents brief inter alia, as follows:-
I have taken time to study the records of appeal, I do not fault the evidence of facts stated by the appellant counsel in his brief. I also agree with the principles as stated in the cases cited in the appellant brief of argument. The learned trial judge was also right in law when she stated that: if an accused person is pinned
9
to the scene of crime whatever alibi the accused is raising is constructively demolished. See the cases of ESANGBEDO VS. STATE (1989) 7 SCNJ 6 NJOVENS V. STATE (1973) NMLR 331 OGOGOVIE V. STATE (2016) LPELR SC 598/2014.
In adopting this principle of law, the lower Court failed to apply the principles of law enunciated by this Court and the apex Court when identification of the culprit in a crime is made an issue as it is in this case.
The apex Court has held in a number of cases that when the issue has to do with the identification of the culprit in a crime, the issue has to be either that:
a. The prosecution witness knew the accused before the incident leading to the offence was committed a case of recognision (sic) of the accused for the first time when the crime was being committed a case of identification of the accused. In this case depending on how long the crime took place and the circumstances which he saw the accused the Court requires the police to conduct an identification parade to enable the witness identify the persons he said he saw. For the principles of law, see the following cases:-
ISIBOR V. STATE
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(2002) 3 NWLR (PT. 754) 250
IKEMSON V. STATE (1989) 3 NWLR (PT. 110) 455
BALOGUN V. A.G. OGUN STATE (2002) 6 NWLR (PT. 763) 512
AGBOOLA V. STATE (2013) LPELR 20652 (SC).
In this case, there was no evidence from the prosecution witnesses that they knew the appellant before the crime was committed or in the cause of committing the crime. All the prosecution witnesses PW1 and PW2 knew and gave in evidence was that one Eze one of the victim of the crime mentioned what the prosecution referred to here as the appellant Aka name Shacool. Eze did not give evidence in this case.
In view of the aforementioned analysis we find it difficult to agree with the learned trial judge that there was proper identification of the appellant at the scene of crime. We do not want to be seen to be arguing the case for the appellant. All we have done here is to state the position of the law as it is our duty to. He did not file a cross appeal in this case and we are not in a position to attack the judgment of the lower Court.
At the hearing of the appeal, however, Mr. Enenmo urged the Court to dismiss the appeal. This request was completely
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inconsistent with his arguments, contentions and submissions in his brief filed on the 12th day of March, 2016 of which a reasonable portion is reproduced above.
The law is settled that litigation, whether civil or criminal, is not a hide and seek game and a party must be consistent as he will not be allowed to approbate over an issue. See Emmanuel Olamide Larmie v. D.P.M.S. Ltd (2005) 18 NWLR (Pt. 958) 438 at 471 472, per Niki Tobi, JSC; Hon. Muyiwa Inakoju & Ors. v. Hon. Abraham Adeolu Adeleke (2007) 4 NWLR (Pt. 1025) 423 at 627; Intercontinental Bank Ltd. v. Brifina Ltd. 2012 3 NWLR (Pt. 1316) 1 at 22, per Mukhtar, JSC (as he then was) and Iliyasu Suberu v. The State (2010) 1 NWLR (Pt. 1176) 494.
When a Court is seised of any cause or matter, its duty as a Court of law is only to decide on the facts and the law presented by the parties before it and not on sentiments. See Federal Republic of Nigeria v. Adolphus N. Wabara (2013) 5 NWLR (Pt. 1347) 331 at 357, per Ibrahim Tanko Muhammed, JSC (as he then was), now Ag. CJN).
I think that it is unreasonable or even wrong in a case, where one of the parties, has accepted as
12
correct and true of his supposed adversary or opponent, it will not be justified for the Court to ferret out facts or reasons why the admitted claim or relief should not be granted. The Court should always remain the impartial and unbiased umpire that it is and should be. For example, it will be wrong for a referee in a boxing match to insist that a boxer who has retired or in the course of the contest, thrown in the towel, thereby openly conceding defeat to his opponent, has not lost the boxing match. Where the referee so insists, in the absence of any legal or justifiable reason, reasonable spectators watching the match away or at home with the impression that the referee was ab initio biased.
It has long been recognised and specifically stated that judicial contests or proceedings should not only be free from actual bias of Judges, but must be free from suspicion of bias. See the case of Leeson v. General Council of Medical Education (1889) LR 43 CD; 390, where Fry, L.J. stated as follows:-
I think that it is a matter of public policy that, so far as is possible, judicial proceedings shall not only be free from actual bias or prejudice of
13
the Judges, but that they shall be free from the suspicion of bias or prejudice.
I do not think that I will be justified in belabouring the issue. By the respondents opinion, reproduced above, the respondent has unequivocally conceded that the appeal is meritorious and that it should be allowed. In view of the respondents concession, I resolve the lone and live issue identified in this appeal in favour of the appellant.
This appeal is, therefore, allowed.
The judgment of the trial Court delivered in Charge No. O/1C/2014 on the 21st day of February, 2017 is hereby set aside. The appellant is, accordingly, discharged and acquitted.
CHIOMA EGONDU NWOSU-IHEME, J.C.A.: My Lord MOORE. A. A. ADUMEIN, JCA obliged me with the draft of the lead judgment just delivered. I agree with the conclusion that the judgment of the trial Court be set aside.
I agree that there is merit in this appeal and it is therefore allowed. The Appellant is accordingly discharged and acquitted.
PHILOMENA MBUA EKPE, J.C.A.: I have read in draft the lead judgment just delivered by my learened brother, MOORE
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ASEIMO ABRAHAM ADUMEIN, JCA.
I too resolve the lone issue in the appeal in favour of the Appellant and also allow the appeal.
I agree with the conclusion that the judgment of the trial Court delivered in Charge No. O/1C/2014 on 21st day of February, 2017 be set aside and the appellant is accordingly, discharged and acquitted.
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Appearances:
N.N. Nnaji, Esq.For Appellant(s)
O.F. Enenmo, Esq., (Director of Appeals, Delta State Ministry of Justice) with him, E.O. Aghoja, Esq. (Chief State Counsel) and P.A. Okoh, Esq. (Chief State Counsel)For Respondent(s)
Appearances
N.N. Nnaji, Esq.For Appellant
AND
O.F. Enenmo, Esq., (Director of Appeals, Delta State Ministry of Justice) with him, E.O. Aghoja, Esq. (Chief State Counsel) and P.A. Okoh, Esq. (Chief State Counsel)For Respondent
