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IBE v. A.G OF IMO STATE (2022)

IBE v. A.G OF IMO STATE

(2022)LCN/16813(CA)

In The Court Of Appeal

(OWERRI JUDICIAL DIVISION)

On Thursday, March 31, 2022

CA/OW/252A/2010

Before Our Lordships:

James Gambo Abundaga Justice of the Court of Appeal

Ibrahim Wakili Jauro Justice of the Court of Appeal

Ademola Samuel Bola Justice of the Court of Appeal

Between

CHIBUIKE IBE APPELANT(S)

And

THE ATTORNEY GENERAL OF IMO STATE RESPONDENT(S)

 

RATIO

WHETHER OR NOT THE COURT MUST CONSIDER ALL ISSUES BROUGHT BEFORE IT BY PARTIES

The respondent did not respond to the appellant’s argument on the issue. Could that be a concession or oversight? Whatever the reason, this Court has a duty to consider it since it is settled law that the Court has a duty to consider all issues properly brought before it. See the following cases – Chukwuekezie v. APGA & Anor. (2019) LPELR–47240 (CA) pp. 25–26, paras F–C, Monkom & Ors v. Odili (2009) LPELR–3927 (CA), pp. 27–28, paras B–A, Maiborkono v. Abubakar (2017) LPELR–44413 (CA), pp. 33–35, paras. F–C. PER ABUNDAGA, J.C.A.

THE MEANING OF THE LATIN MAXIM “STARE DECISIS ETEM QUELA MOVERE”

In the course of arguing this appeal, the appellant’s counsel copiously cited this authority, and urged this Court to hold itself bound by that decision since it is the decision of the Supreme Court going by the doctrine of stare decisis, otherwise known as Judicial precedent. In Latin, it is “stare decisis et em quela movere” It is interpreted in English language to mean, “to stand by what has been decided and not to disturb and unsettle things which are established”. The term stare decisis means to abide by former precedents where the same points come again in litigation. In the case of PDP v. Oranezi & Ors. (2017) LPELR – 434 (SC) the apex Court further explained the doctrine thus:
“In NEPA V. Onah (1997) LPELR-1959 (SC) this Court has stated as follows: “It is a cardinal principle of law under the doctrine of stare decisis that an inferior Court is bound by a decision of a superior Court, however sure it may be that it has been wrongly decided.” See also Usman V. Umaru (1992) 7 SCNJ 388, Ngwo & Ors V. Monye & Ors (1970) LPELR-1991 (SC) and CBN & Ors V. Okojie (2015) LPELR-24740 (SC).”
Per MUHAMMAD, JSC (Pp. 9-10, paras. E-A).
See also the case of Oyewunmi & Anor v. Ogunesan (1990) LPELR–2880 (SC) p. 61 paras E – F. PER ABUNDAGA, J.C.A.

THE PRINCIPLE OF STARE DECISIS

I find the illustration of the operation of the principle of stare decisis given in the case ofA. G. Lagos State v. Eko Hotels Limited & Ors. (2017) LPELR–4371 (SC), encompassing and very instructive. Therein it was stated:
“Stare decisis” is defined in Black’s Law Dictionary, 8th edition as follows: “To stand by things decided.” The doctrine of precedent under which it is necessary for a Court to follow earlier judicial decision when the same points arise again in litigation. “The rule of adherence to precedents finds its expression in the doctrine of stare decisis. The doctrine is simply that, a point or principle of law which has been once officially decided or settled by the ruling of a competent Court in a case in which it is directly and necessarily involved, will no longer be considered as open to examination or to a new ruling by the same tribunal, or by those which are bound to follow its adjudication, unless it be for urgent reasons and in exceptional cases.” William M. Lile et al. Brief Marking and the use of Law Books 321 (3rd ed. 1914).” (Underlining mine for emphasis) The rationale for the doctrine was stated by His Lordship, Onnoghen, JSC (as he then was) in Ardo Vs Nyako (2014) LPELR-22878 (SC) thus: “… the principle of judicial precedent or stare decisis is designed to ensure orderliness, certainty and discipline in the judicial process. The principle holds inferior Courts to the Supreme Court of Nigeria bound by the previous decision(s) of the Court on similar facts in the consideration and determination of matters before them. …It is settled that the way open to the Courts to avoid the doctrine/principle of judicial precedent/stare decisis is by distinguishing the previous decision(s) from the facts and/or circumstances of the case under consideration.”
Per KEKERE-EKUN, JSC (Pp. 13-15, paras. F-B)
It is important to note that for the application of the doctrine, the issues or points decided by the higher Court must be the same issues or points that have come up for determination in the Court that is enjoined to follow the decision of the higher Court. As held by Eko, JSC, in the case of Mailantarki v. Tango & Ors. (2017) LPELR–42467 (SC), pp. 17–18 paras D–A:
”Agreed no two cases have identical facts. Where, however, the facts of the decided case are substantially the same with the case at hand, the principle of stare decisis enjoins a Court to follow the earlier judicial decisions when the same points arose again in litigation. It is also a rule of law that ensures certainty in the state of the law and its application.”
PER ABUNDAGA, J.C.A.

THE BURDEN AND STANDARD OF PROOF IN CRIMINAL MATTERS

I think it is appropriate at this stage to consider the burden borne by the prosecution in order to succeed in proving its case against the appellant.
The standard of proof is proof beyond reasonable doubt, and the burden is on the prosecution and never shifts except in cases such as insanity. See Section 135(1) of the Evidence Act, 2011. See the following cases: Shehu v. The State (2010) LPELR–3041 (SC). P. 25 para E, Ofordike v. State (2019) LPELR–46411 (SC), pp. 8–9, paras C–B, Abdullahi v. State (2008) LPELR–28 (SC), p. 12, paras E-F, Akpakpan v. State (2021) LPELR–56220 (SC), p. 12, paras A–B.

In a charge of armed robbery, the prosecution is required to prove the following ingredients beyond reasonable doubt –
(a) That there was robbery or series of robberies,
(b) That the robbery or robberies was an armed robbery,
(c) That the accused person was one of those who took part in the armed robbery –
Emeka v. The State (2014) LPELR–23020 (SC), p. 12, paras B–C, Afolalu v. The State (2010) LPELR–197 (SC), p. 26, paras B–C, Eze v. FRN (2017) LPELR–42077 (SC), p. 63 paras A–C. PER ABUNDAGA, J.C.A.

JAMES GAMBO ABUNDAGA, J.C.A. (Delivering the Leading Judgment): The appellant in this appeal and three other persons were arraigned at the High Court of Imo State, Ahiazu Mbaise Judicial Division, on information in which they were charged with the following:
COUNT 1
STATEMENT OF OFFENCE
Conspiracy contrary to Section 516 of the Criminal Code Act Cap. 77 LFN (sic) 1990 applicable to Imo State;
PARTICULARS OF OFFENCE
Onyedikachi Osauagwu, Chimezie Ogu, Michael Anyanwu and Chibuike Samuel Ibe on the 15th day of December, 2005, at Umuduruji Elekenaowari Obohia Azuazu, Mbaise in the Aboh, Mbaise Judicial Division, conspired among yourselves to rob with guns one Cosmas Azodiro of the sum of N1,827,000 (One Million, Eight Hundred and Twenty Seven Thousand Naira) belonging to him.
COUNT 2
STATEMENT OF OFFENCE
Armed Robbery, contrary to Section 402 (2) (a) of the Criminal Code Act, Cap. 77 Laws of the Federation, 1990, as applicable to Imo State.
PARTICULARS OF OFFENCE
Onyedikachi Osuagwu, Omezie Ogu, Michael Anyanwu and Chibuike Samuel Ibe on the 15th day of December, 2005 at Umuduruji Elekenaowari Obohia Azuazu Mbaise in the Aboh Mbaise Judicial Division, armed with short guns robbed one Cosmas Azodiro of the sum of N1,827,000 (One Million Eight Hundred and Twenty Seven Thousand Naira) belonging to him.
(Italics supplied for emphasis)

Sequel to their plea of “Not guilty” on June 4th, 2008, trial commenced. In proof of their case, the prosecution called five witnesses. The Court (hereinafter, simply, referred to as “the trial Court”), also, admitted certain documents as Exhibits, A; B; C; D; E; F and G. At the end of the case of the prosecution, counsel for the appellant entered and relied on his No Case submission.

In its judgment of September 23rd, 2009, the trial Court (Coram Duruoha Igwe J), overruled the said submission, convicted and proceeded to sentence him to death upon finding him guilty “as charged”.

Dissatisfied with the outcome of his trial, he appealed to the Court of Appeal, Owerri Division.

​The Notice of appeal was filed on 22/10/2009. With leave of this Court obtained the Notice of appeal was amended. The amended Notice of appeal which has 9 grounds of appeal was filed on 3/3/17 and deemed properly filed and served on 31/1/18. The record of appeal was compiled and transmitted on 24/9/10 and deemed properly compiled and transmitted on 31/7/20.

With due compilation and transmission of the record of appeal, the appellant’s brief of argument settled by J. C. Okafor, of counsel was filed on 3/7/20 and deemed properly filed and served on 9/7/20. On receipt of appellant’s brief of argument, the respondent filed its brief of argument settled by Mrs. J.U. Iwuagwu of counsel on 6/8/20. The appellant filed his reply brief on 20/8/20.

In the appellant’s brief of argument, the following issues were formulated:
(i) Whether the learned trial Judge was right in holding that the prosecution proved its case against the Appellant beyond reasonable doubt even when the prosecution’s case is based on mere suspicion. (Distilled from Grounds 1, 4, and 8).
(ii) Whether the learned trial Judge was right in convicting the Appellant of conspiracy and armed robbery and sentencing him to death in the absence of the evidence of the Investigating Police Officer who is a material or vital witness. (Distilled from Ground 7).
(iii) Whether the learned trial Judge was right in convicting the Appellant for conspiracy and armed robbery when the Appellant was not identified as one of the alleged armed robbers and the purported identification parade conducted fell far short of the minimum standard required in law. (Distilled from Grounds 3A and 6.
(iv) Whether the learned trial Judge was right in dismissing the no case submission made by the Appellant in spite of the fact that the evidence of the prosecution witnesses were totally discredited under cross-examination and the learned trial Judge ought to have upheld the no-case submission and discharge and acquit the Appellant accordingly. (Distilled from Ground 9).
(v) Whether the learned trial Judge was right in holding that the trial Court had the requisite jurisdiction to try the Charge/Information when the consent of the trial Judge was not first sought and obtained before filing the Information as provided by Section 340(2)(a) and 3 of the Criminal Procedure Law of Eastern Nigeria applicable to Imo State. (Distilled from Ground 2).
(vi) Whether the learned trial Judge was right in believing the evidence of the prosecution witnesses (PW1, PW2, PW3, PW4 and PW5) in spite of the fact that the evidence of the prosecution witnesses are riddled with material contradictions and has no probative value. (Distilled for Grounds 3 and 5).
The appellant proffered the following arguments on the issues.

ISSUE ONE
Whether the learned trial Judge was right in holding that the prosecution proved its case against the Appellant beyond reasonable doubt even when the prosecution’s case is based on mere suspicion.
It is submitted that the prosecution did not establish its case beyond reasonable doubt, but that the prosecution’s case was hinged on mere speculation. Counsel reminds the Court of the burden on the prosecution to prove the guilt of the appellant beyond reasonable doubt, which burden counsel posits does not shift. The Court is referred to Section 139(1) of the Evidence Act, 2011, and the case of Njoku v. The State. It is further submitted with strong force that whereas the allegation as contained in the charge is that the victim of the armed robbery was one Cosmas Azodiro, the whole of the evidence points to the fact that the said Cosmas who testified as PW1 was not at scene of the robbery but was at the market. Both he and his wife who testified as PW2 gave evidence to this fact, counsel to the appellant submits. Counsel therefore submits that since PW1 (Cosmas Azodiro) was not anywhere near the alleged locus criminis and neither saw the armed robbers nor did the armed robbers threaten him with violence, he could not have been robbed on the 15th December 2005, the date of the robbery. Counsel thus submits that the prosecution’s case runs contrary to the charge against the accused, and that in that instance it is settled law that the accused would be entitled to discharge and acquittal. The case of Abacha v. The State (2002) 11 NWLR (Pt. 779) 437, (2002) 7 SC (Pt. 1), amongst several other cases were cited. Also cited is the case of Onyedikachi Osuagwu v. The State (2016) 16 NWLR (Pt. 1537) 31. This case counsel points out is a sister case to the instant case and the facts are on all fours with the facts of the present case. He further points out that the appellant in that case (Onyedikachi Osuagwu) was the 1st accused in charge No. HAM/64C/2006 from which the present appeal emanated and was convicted with the appellant in the instant appeal. Counsel therefore commended Onyedikachi’s case to this Court for consideration and application.

Submits that it was held in the case of Onyedikachi Osuagwu v. The State (supra) that it is only an eye witness of an armed robbery attack that can be a victim. Further submits that it is settled that for an act to constitute robbery there must be that experienced by the victim of fear and intimidation brought about by apprehension of possible violence to the person before robbery. That in this case it was not shown that there was any threat of violence on PW1 who was nowhere near the locus crimins on the fateful day (15/12/05).

Further submitted that the 2nd accused person who was charged along with the appellant was set free but the appellant was convicted. That having been charged together, the appellant also ought to have been set free – cited in support is the case of Corporal Desmond Omoniyi v. The State (2014) 8 NWLR (Pt. 1409) 345 at 396 paras C – E.

Counsel ran through the evidence of the prosecution witnesses (PW1, PW2, PW3, PW4 and PW5), and submits that they failed to prove the prosecution’s case having not proved that the appellant robbed PW1.

It is also submitted that PW4 admitted under cross-examination that a motorcycle was recovered but same was not tendered. This counsel submits casts a doubt on the prosecution’s case, which doubt must be resolved in the appellant’s favour. The case of Nwomukoro v. The State (1995) INWLR (Pt. 372) 432 was cited in support.
Counsel further points out what he sees as contradictions in the prosecution’s case.

Next, Counsel submits that the appellant was not identified as one of the armed robbers that committed the offences with which they were charged and convicted that what the prosecution sees as evidence against the appellant is based on suspicion as the appellant was not caught at the locus criminis.

Now looking at the ingredients of the offence of armed robbery, it is submitted that reasonable doubt is created in the evidence of the prosecution witnesses which ought to have been resolved in favour of the appellant.

ISSUE TWO
Whether the learned trial Judge was right in convicting the Appellant of conspiracy and armed robbery and sentencing him to death in the absence of the evidence of the Investigating Police Officer who is a material or vital witness.
It is submitted for the appellant that the learned trial Judge was in error in convicting the appellant in the absence of the evidence of the investigating police officer because he is material or vital witness. It is pointed out that the I.P.O – S. Aligbe CSP of the State CID Owerri was listed in the information as one of the witnesses for the prosecution but was not called. It is noted that he was the one that arrested the appellant and some of the accused persons, and again, it was he who conducted the “so–called” identification parade at the State CID, Owerri. In the case of Onyedikachi Osuagwu v. State (supra) it was held that the failure to call him raises the presumption that his evidence would have been unfavourable to the prosecution, so counsel further submits. The adjunct to the failure to call the IPO is that because he was not called his police report was not also tendered in evidence.

​Referring to the evidence of PW5, it is submitted that he did not investigate this case at all. Reference is made to his evidence at page 78, lines 24 – 27 that as the investigation was on, the case was transferred to the State CID for further investigation. The case of Opeyemi Omolara Bajulaiye v. The State (2012) LPELR–7995 (CA), PP. 34–35 paras F–C was cited in support of counsel’s argument on the fatality of failure to call the IPO. Also on who is a vital witness, the case of Ogudo v. The State (2011) LPELR–860 (SC), PP. 28–29, paras E–A is relied on.

The Court is referred to the case of Onyedikachi Osuagwu v. The State (supra), urged to apply it to resolve issue two in favour of the appellant.

ISSUE THREE
Whether the learned trial Judge was right in convicting the Appellant for conspiracy and armed robbery when the Appellant was not identified as one of the alleged armed robbers and the purported identification parade conducted fell far short of the minimum standard required in law.
This issue earlier briefly referred to in issue one is once again reiterated, perhaps because of its importance to the appellant’s case. Reliance is placed on the case of Wasiu Ganiyu v. The State (2014) LPELR – 23404 – (CA) PP. 21 – 23. Also cited is the case of Onyedikachi Osuagwu v. The State (supra). It is submitted that there is no evidence shown from the record that the appellant was identified as the actual person who committed offence. Counsel faulted the evidence of PW1, PW2 and PW3 which evidence counsel submits is riddled with material contradictions, it is submitted for the appellant. It is necessary that all the robbers must be positively identified. The essence, counsel submits is to ensure that an innocent person is not convicted for an offence he did not commit.

Counsel faulted the identification process carried out at the police station where just the four accused persons were brought out and PW2 asked to identify them. It is argued that this mode of identification is not in tandem with the law which requires that police assembles a group of persons of identical size and common physical features from whom a witness would then be required to identify a suspect or suspects unaided and untutored – Abdullahi v. State (2005) All FWLR (Pt. 263) PP. 716–716 per Adamu, JCA.

Counsel again commends to this Court the decision in Oyedikachi Osuagwu v. The State (supra) for application.

Submits further that the evidence of prosecution witnesses on identification is based purely on suspicion, which counsel further points out cannot take the place of legal proof. It is therefore submitted by counsel that where the evidence of identification is poor as in the instant case the trial Court should return a verdict of not guilty.

ISSUE 4
Whether the learned trial Judge was right in dismissing the no case submission made by the Appellant in spite of the fact that the evidence of the prosecution witnesses were totally discredited under cross-examination and the learned trial Judge ought to have upheld the no-case submission and discharge and acquit the Appellant accordingly.
The dismissal of the no case submission is faulted by appellant’s counsel on the bases of the fact that the evidence of the prosecution witnesses was thoroughly discredited under cross-examination that no reasonable tribunal would convict on it. Reference is made to the evidence of the prosecution witnesses and to what counsel holds firmly to be contradiction in such evidence. It is submitted that in view of material contradictions in the evidence of the prosecution witnesses the trial Court ought to have upheld the no case submission which was rightly made by counsel.

The Court is urged to resolve issue four in favour of the appellant.

ISSUE FIVE
Whether the learned trial Judge was right in holding that the trial Court had the requisite jurisdiction to try the Charge/Information when the consent of the trial Judge was not first sought and obtained before filing the Information as provided by Section 340(2)(a) and 3 of the Criminal Procedure Law of Eastern Nigeria applicable to Imo State.
It is submitted that the trial Court was supposed in law to have sought and obtained the consent of the Judge to prefer the information being an indictable offence, and that having not obtained the said consent the charge is incompetent and deprived the trial Court the vires to hear the case based on the charge. Section 340 (2)(a) (b) and (3) of the Criminal Procedure Law is relied on. On lack of jurisdiction, the cases of Madukolu & Ors. v. Nkemdilim (1962) 1 All NLR 587 at 594 and Sken Consult (Nig) Ltd & Anor. v. Ukey (1981) 1 SC 18 are relied upon.

On the need for consent, the case of Coporal Livinus Ugwu v. The State (2013) LPELR–20177 (SC) PP. 20–21, paras G–E is relied on.

ISSUE SIX
Whether the learned trial Judge was right in believing the evidence of the prosecution witnesses (PW1, PW2, PW3, PW4 and PW5) inspite of the fact that the evidence of the prosecution witnesses are riddled with material contradictions and has no probative value.
Here counsel submits that the learned trial Judge was in error to have believed the evidence of the prosecution witnesses inspite of the fact that the evidence is riddled with material contradictions and has no probative value. He refers to both the oral and extra judicial statements of the witnesses. Counsel refers as perverse the holding of the trial Court at page 103 of the record that where there is uncontroverted evidence as in the evidence of PW1, PW2, PW3, PW4 and PW5, a Court has a duty to act on it. Submits that the holding is perverse because the prosecution witnesses were thoroughly discredited under cross-examination.

​Counsel therefore holds that there is no basis at all for the learned trial Judge to believe the evidence of the prosecution witnesses. The Court is urged to resolve issue 6 (six) in favour of the appellant, and on the whole to allow the appeal and set aside the conviction and sentence and discharge and acquit the appellant.

The respondent argued the appeal on five issues which were thus framed:
1. Whether the prosecution proved its case beyond reasonable doubt against the appellant. (Ground One).
2. Whether the appellant was properly identified as one of the robbers that robbed the victims on 15/12/2005. (Ground Two).
3. Whether failure to call the investigating police officer is fatal to the case of the prosecution. (Ground Three).
4. Whether the learned trial Judge was right in law to convict the appellant on the “No Case Submission” which they relied upon. (Ground Four).
5. Whether the trial Judge properly evaluated the evidence adduced before it by the witnesses. (Ground Five).
The issues are argued as recapped below:

ISSUE ONE
Whether the prosecution proved its case beyond reasonable doubt against the appellant.
The submission on this issue is commenced with a restatement of the Court on the ingredients of the offence of armed robbery, to wit:
(1) That there was a robbery,
(2) That the accused person took part in the robbery.
(3) That it was an armed robbery.

The case of Sunday v. The State (2010) FWLR (Pt. 548) 874 at 913 is referred to.

Counsel submits that the prosecution proved its case beyond reasonable doubt, and refers to the evidence of PW2 at pages 65-67 of the record of appeal. Submits that from the evidence of PW1, the offence of armed robbery was proved beyond reasonable doubt and that the appellant was properly identified by PW2 as one of the robbers that accosted her in her room at about 9.00am on 15/12/05. Further submits that she was never cross-examined on her evidence, and the appellant did not put up a defence to it. Therefore, counsel submits, the evidence remains uncontroverted. He further submits that the best identification of an accused is by the victim to a crime or a witness to the crime. It is further submitted for the respondent that the prosecution proved its case beyond reasonable doubt.

​Submits that it has been proved that the accused used actual force to a person in order to obtain the stolen property from the person that was robbed. That it is not the requirement of the law that the owner of the item must witness the robbery. Submits that evidence of someone who witnessed the robbery suffices. Further submitted that there is no requirement that the owner of the property stolen must be the person who was threatened or upon whom the violence was meted.

It is further contended contrary to the submission of the appellant’s counsel that the finding of the trial Court that armed robbery was proved is perverse, that there was robbery in the house of PW1 and his wife, PW2, that robbery was armed robbery and that the appellant was one of the armed robbers. Relies on the case of Sylvester Utteh v. The State (1992) 2 NWLR (Pt. 223) 57 where it was held that where an accused person exercises his right to remain silent and the prosecution calls credible evidence which remains unrebutted the Court is entitled to accept it. That an accused person who chooses to remain silent does so at his own peril.

Counsel therefore urged the Court to resolve issue one in favour of the respondent.  

ISSUE TWO
Whether the appellant was properly identified as one of the robbers that robbed the victims on 15/12/2005.
It is submitted for the respondent that the appellant was properly identified by PW2. The Court is referred to the evidence of PW2 on pages 66–67 of the record of appeal. It is further submitted that in ascribing probative value to the evidence of identity the Court will take into consideration the following factors: – (a) the circumstances in which the eye witness saw the accused (b) the length of time the witness stayed with the accused (c) the lighting conditions at the scene of the incident (d) the opportunity the witness had of close observation; and (e) the previous contacts between the accused and the eye witness. Counsel relied on the case of Amoshima v. The State (2009) 3 WRN 47. It is pointed out that the identification of the accused can be either by visual identification or by voice identification or through identification parade. That in the instant case the PW2 is the eye witness and also the victim. Further submitted that there was no mistake in the identification of the appellant by PW2. Identification parade, respondent’s counsel further submits is one of the numerous ways of identification of an accused person, but it is not a sine qua non in all cases, especially where the accused is known to the victim. That it is also necessary where the encounter between the victim and the suspect was only for fleeting moment – The case of Afolabi v. The State (2009) 3 NWLR (Pt. 1127) PP. 189–190 is referred to. Counsel relied on the description of the appellant by PW2, and submitted that her evidence was not challenged by the appellant who did not enter his defence. It is further submitted that the evidence against the appellant is overwhelming, and calls for some explanations but he elected not to testify.

The Court is therefore urged to resolve issue two in favour of the respondent.

ISSUE THREE
Whether failure to call the investigating police officer is fatal to the case of the prosecution.
It is submitted for the respondent that the failure to call the IPO is not fatal to the prosecution’s case, the law being that the prosecution is only required to call those witnesses who can prove the ingredients of the offence charged. Section 179(1) of the Evidence Act, 2011 is referred to. Submits that the prosecution called five witnesses including the PW2 who is an eye witness, who also identified the appellant and pinned him to the scene of crime. Therefore, counsel submits, the absence of the IPO did not weaken the credibility of the evidence adduced by the prosecution.

ISSUE FOUR
Whether the learned trial Judge was right in law to convict the appellant on the “No Case Submission” which they relied upon.
It is submitted that the no case submission was rightly refused and the appellant rightly convicted. It is contended for the respondent that at the close of the prosecution’s case all the essential ingredients of the offence were established against the appellant who instead of entering his defence decided to rely on a no case submission. That having entered the no case submission the implication is that the trial Court will be entitled to rely on the uncontroverted evidence of the prosecution witnesses in finding the appellant guilty.

​ISSUE FIVE
Whether the trial Judge properly evaluated the evidence adduced before it by the witnesses.
It is submitted that the learned trial Judge in his judgment gave an in-depth analysis of the evidence before he arrived at a conclusion in the case. That it is the law that an appellate Court must respect the opinion of the trial Judge who saw and heard the witnesses. The case of Joseph v. The State (2011) All FWLR (Pt. 599) 1018 and the case of Onuoha v. The State (1998) NWLR (Pt. 548) 118 are referred to. Counsel therefore submits that the judgment of the trial Court is supported by credible evidence.

The Court is therefore urged to resolve issue five in favour of the respondent.

In the appellant’s reply brief he dwelt on preliminary issues which do not in my view fall within the purview of a reply brief, for the purpose of reply brief is to deal with new points arising from the respondent’s brief, and where a reply brief is not restricted to such new points but raises fresh issues not tended to in the respondent’s brief of argument, the Court has a duty to discountenance it. See the following cases: –
Ogunleye v. State (2016) LPELR–40090 (CA), Okenwa v. Military Gov., Imo State & Ors (1996) LPELR 2440 (SC), P.31 paras D–E, Anuka Community Bank (Nig) Ltd. & Anor v. Olua & Anor (2000) LPELR–1067 (CA), PP. 17–18 paras D–C.

Therefore the appellant’s argument that the respondent filed no cross–appeal and yet, instead of adopting his issues, proceeded to formulate its own issues are not issues that can be accommodated in a reply brief.

The appellant’s counsel also went to great length to lecture this Court on the importance of doctrine of stare decisis in judicial adjudication. That too did not arise as a new issue in the respondent’s brief of argument and therefore has no accommodation in a reply brief. It is therefore discountenanced.

On issue one, the only issue he replied to that can be accommodated in a reply brief is the respondent’s argument in paragraph 4.12 on pages 9–10 which is that:
“There is no requirement that the owner of the item stolen must witness the robbery. The fact that someone who was a witness to the robbery has given evidence that the robbers were armed satisfied the requirement. It is on the premise of the above definitions that I call upon this Court to re-define the concept of victim which although has no particulars impact (sic) of the definition of robbery according to the law will put in perspective the use of violence. It is submitted that there is no requirement that the owner of the property stolen must be the person who was the threatened or upon whom the violence was melted (sic). To do so will mean expanding the scope of escape route for violent crime perpetrators who might attack in the absence of the owner. Somebody can be robbed of is (sic) property in his absence as long as there is evidence of the robbery with violence the offence will be proved. PW1 need not witness the robbery for the offence to be established. He was the victim whose property was taken away by the accused. That he did not witness the robbery cannot defeat the charge against the accused person when the essential ingredients of the offence have been properly established.”

​Appellant’s submission is that the argument is a misconception of the nature of armed robbery. That it is settled law that for an act to constitute robbery, there must be that experienced by the victim of fear and intimidation brought about by misapprehension of possible violence to his person before the robbery, and cites in support the case of Fatai Olayinka v. The State, 30 MSCQR 149, 172–173, and the case of Onyedikachi v. The State (2016) NWLR (Pt. 1537) 31 at 69 paras B – D.

On issue two, the appellant’s counsel points out that in paragraph 5.06 of the respondent’s brief, the respondent erroneously referred to PW2 as the victim of the attack. Counsel submits that the charge before the Court is that the appellant and others conspired and robbed one Cosmas Azodiro (PW1). That no reference was made to the name of the PW2 whatsoever in the charge and therefore she cannot be a victim.

​It is also counsel’s submission that apart from the ipse dixit of PW2 there is no evidence whatsoever that the alleged motorcycle allegedly recovered at the scene actually belonged to the appellant. Counsel further points out that the particulars of the alleged motorcycle was not tendered in Court to prove that it belongs to the appellant, and this in addition to the fact that it was not tendered in evidence. All the submissions on identification are re-argument and cannot come within the purview of a reply brief, and are therefore discountenanced.

What appellant’s counsel refers to as reply to issues 3, 4 and 5 are in my respectful view, re-argument of arguments already canvassed in the appellant’s brief of argument and cannot properly be accommodated in the forum of a reply brief of argument, and are hereby discountenanced. Surely, a reply brief should not serve as a forum for reopening the appellant’s case over again – Yaro v. Arewa Construction Ltd. & Ors. (2007) LPELR–3516 (SC) pp. 36–37 paras E–B, King v. INEC & Ors. (2008) LPELR–4403 (CA), p. 19 paras A–E.


With the exception of issue 6 raised in the appellant’s brief of argument, all the issues raised and argued in the appellant’s and respondent’s briefs of argument gravitate to the broad issue:
“Whether the learned trial Judge did not err when he found that the charge of armed robbery was proved beyond reasonable doubt by the prosecution and accordingly convicted and sentenced the appellant to death.”

​I shall quickly dispose of appellant’s issue 5 first. For avoidance of doubt, the issue is:
“Whether the learned trial Judge was right in holding that the trial Court had the requisite jurisdiction to try the charge/information when the consent of the trial Judge was not first sought and obtained before filing the information as provided by Section 340 (2) (a) and (b) and 3 of the Criminal Procedure Law of Eastern Nigeria, applicable to Imo State.”

The respondent did not respond to the appellant’s argument on the issue. Could that be a concession or oversight? Whatever the reason, this Court has a duty to consider it since it is settled law that the Court has a duty to consider all issues properly brought before it. See the following cases – Chukwuekezie v. APGA & Anor. (2019) LPELR–47240 (CA) pp. 25–26, paras F–C, Monkom & Ors v. Odili (2009) LPELR–3927 (CA), pp. 27–28, paras B–A, Maiborkono v. Abubakar (2017) LPELR–44413 (CA), pp. 33–35, paras. F–C.

​The record of appeal shows that on 4/6/08, the appellant and the other accused persons were arraigned before the trial Court. They were represented by counsel and took their plea of not guilty to the charge. The case was then adjourned to 15/7/08 for hearing. See page 6 of the record of appeal. It is therefore evident that none of them raised any objection to the competence of the charge at the time they took their plea. Can the appellant competently raise it on appeal? The Supreme Court gave an emphatic answer to this question in the case of Samuel Attah v. The State (2010) LPELR 597 (SC) where it held:
“In any event, the appellant ought to have complained against the exercise of the discretion by the trial Judge to grant the application to prefer the charge before the trial and not when the trial was concluded and on an appeal to the last Court of resort, the Supreme Court. At the trial, evidence was adduced by the prosecution witnesses which was believed by the trial Judge that the appellant(s) committed the offences charged. In my view, such a complaint can only be valid before the trial and accordingly, where an accused person consented to his trial after even a faulty exercise of discretion to prefer a charge, he cannot after the conclusion of the trial raise the complaint.

In my view, it is too late, where there is an irregularity in the initiation of the procedure for a criminal trial, the defence has a duty to object timeously and not when the trial is concluded. See AGBO VS. THE STATE (2006) 6 NWLR (Pt. 977) 545. ADEKUNLE VS. THE STATE (2006) 14 NWLR (Pt. 1000) 717.”
Per MUSDAPHER, JSC (Pp. 10-11, paras. F-D)
See also the following: – Shehu v. State (2009) LPELR–3578 (CA), pp. 11–12, paras F–D, Mozie v. State (2012) LPELR–14353 (CA), pp. 21–23 para E, Okewu v. FRN (2012) LPELR–7834 (SC), p. 20 paras A–F.
The clear position of the law is that any objection to the competence of a charge must be raised at the time the plea is to be taken, and not after the plea had been taken, trial concluded and judgment delivered.

This issue is therefore resolved in favour of the respondent.

And now, the determinant issue in this appeal as framed by me as arising from all the issues and submissions and the appellant’s and respondent’s briefs of argument.

​It is instructive to state that from the record of appeal and submission of appellant’s counsel (deemed conceded by the respondent’s counsel since he failed to respond to the issue in the respondent’s brief of argument) the appellant herein was jointly charged with three others in a charge in which the appellant was the 4th accused person, while one Onyedikachi Osuagwu was the first accused person. The 1st, 3rd and 4th accused persons were convicted on the charge while the 2nd accused person was discharged and acquitted. The 1st accused person (Onyedikachi Osuagwu) was not satisfied with his conviction and appealed to the Court of Appeal where he lost. Yet not satisfied, he appealed to Supreme Court and succeeded and had his conviction quashed on several grounds. The decision of the apex Court allowing the appeal was unanimous. The case is reported in Nigerian Weekly Law Report as: Onyedikachi Osuagwu v. The State (2016) NWLR (Pt. 1537) page 31. It is also reported in the Law Pavilion Electronic Law Report as: Onyedikachi Osuagwu v. The State (2016) LPELR–40836 (SC).

In the course of arguing this appeal, the appellant’s counsel copiously cited this authority, and urged this Court to hold itself bound by that decision since it is the decision of the Supreme Court going by the doctrine of stare decisis, otherwise known as Judicial precedent. In Latin, it is “stare decisis et em quela movere” It is interpreted in English language to mean, “to stand by what has been decided and not to disturb and unsettle things which are established”. The term stare decisis means to abide by former precedents where the same points come again in litigation. In the case of PDP v. Oranezi & Ors. (2017) LPELR – 434 (SC) the apex Court further explained the doctrine thus:
“In NEPA V. Onah (1997) LPELR-1959 (SC) this Court has stated as follows: “It is a cardinal principle of law under the doctrine of stare decisis that an inferior Court is bound by a decision of a superior Court, however sure it may be that it has been wrongly decided.” See also Usman V. Umaru (1992) 7 SCNJ 388, Ngwo & Ors V. Monye & Ors (1970) LPELR-1991 (SC) and CBN & Ors V. Okojie (2015) LPELR-24740 (SC).”
Per MUHAMMAD, JSC (Pp. 9-10, paras. E-A).
See also the case of Oyewunmi & Anor v. Ogunesan (1990) LPELR–2880 (SC) p. 61 paras E – F. 

I find the illustration of the operation of the principle of stare decisis given in the case ofA. G. Lagos State v. Eko Hotels Limited & Ors. (2017) LPELR–4371 (SC), encompassing and very instructive. Therein it was stated:
“Stare decisis” is defined in Black’s Law Dictionary, 8th edition as follows: “To stand by things decided.” The doctrine of precedent under which it is necessary for a Court to follow earlier judicial decision when the same points arise again in litigation. “The rule of adherence to precedents finds its expression in the doctrine of stare decisis. The doctrine is simply that, a point or principle of law which has been once officially decided or settled by the ruling of a competent Court in a case in which it is directly and necessarily involved, will no longer be considered as open to examination or to a new ruling by the same tribunal, or by those which are bound to follow its adjudication, unless it be for urgent reasons and in exceptional cases.” William M. Lile et al. Brief Marking and the use of Law Books 321 (3rd ed. 1914).” (Underlining mine for emphasis) The rationale for the doctrine was stated by His Lordship, Onnoghen, JSC (as he then was) in Ardo Vs Nyako (2014) LPELR-22878 (SC) thus: “… the principle of judicial precedent or stare decisis is designed to ensure orderliness, certainty and discipline in the judicial process. The principle holds inferior Courts to the Supreme Court of Nigeria bound by the previous decision(s) of the Court on similar facts in the consideration and determination of matters before them. …It is settled that the way open to the Courts to avoid the doctrine/principle of judicial precedent/stare decisis is by distinguishing the previous decision(s) from the facts and/or circumstances of the case under consideration.”
Per KEKERE-EKUN, JSC (Pp. 13-15, paras. F-B)
It is important to note that for the application of the doctrine, the issues or points decided by the higher Court must be the same issues or points that have come up for determination in the Court that is enjoined to follow the decision of the higher Court. As held by Eko, JSC, in the case of Mailantarki v. Tango & Ors. (2017) LPELR–42467 (SC), pp. 17–18 paras D–A:
”Agreed no two cases have identical facts. Where, however, the facts of the decided case are substantially the same with the case at hand, the principle of stare decisis enjoins a Court to follow the earlier judicial decisions when the same points arose again in litigation. It is also a rule of law that ensures certainty in the state of the law and its application.”

Applied to the instant case, the evidence against the appellant in the case cited (that’s Onyedikachi v. The State) and the appellant herein in respect of identification are not the same. However, in the consideration of the general evidence in proof of the offence of armed robbery, the apex Court noted that while the charge is that on the material date the accused persons robbed one Cosmas Azodiro, the evidence of PW1 and PW2 shows that Cosmas Azodiro was at the material time nowhere near the scene of the robbery. In actual fact, the person who was allegedly robbed was Assumpta Azodiro (PW2). Both Cosmas Azodiro (PW1) and Assumpta Azodiro (PW2) testified to this fact.

I think it is appropriate at this stage to consider the burden borne by the prosecution in order to succeed in proving its case against the appellant.
The standard of proof is proof beyond reasonable doubt, and the burden is on the prosecution and never shifts except in cases such as insanity. See Section 135(1) of the Evidence Act, 2011. See the following cases: Shehu v. The State (2010) LPELR–3041 (SC). P. 25 para E, Ofordike v. State (2019) LPELR–46411 (SC), pp. 8–9, paras C–B, Abdullahi v. State (2008) LPELR–28 (SC), p. 12, paras E-F, Akpakpan v. State (2021) LPELR–56220 (SC), p. 12, paras A–B.

In a charge of armed robbery, the prosecution is required to prove the following ingredients beyond reasonable doubt –
(a) That there was robbery or series of robberies,
(b) That the robbery or robberies was an armed robbery,
(c) That the accused person was one of those who took part in the armed robbery –
Emeka v. The State (2014) LPELR–23020 (SC), p. 12, paras B–C, Afolalu v. The State (2010) LPELR–197 (SC), p. 26, paras B–C, Eze v. FRN (2017) LPELR–42077 (SC), p. 63 paras A–C.

​From the evidence adduced by the prosecution, there is no doubt that there was an armed robbery. Not even the appellant disputes this. However, while the evidence shows that the person robbed was Assumpta Azodiro (PW2), the charge against the appellant and the other accused persons was that the accused persons (inclusive the appellant) robbed one Cosmas Azodiro (PW1). Who then was the victim in this case – was it Assumpta Azodiro who was robbed or Cosmas Azodiro who was not robbed but named as victim in the charge? Could the appellant have robbed the person who was not charged? This question was answered by Ngwuta, JSC in his concurring opinion in the case of Onyedikachi Osuagwu v. The State (supra) in the following language:
“PW1 cannot be a victim of robbery by proxy. The victim is a crucial element of the offences charged and in the absence of evidence to show who was robbed, the prosecution cannot be said to have proved the elements of the offence beyond reasonable doubt” Ngwuta, JSC, p. 40 paras C – D.
​Lending his voice in his concurring contribution, Akaa’ahs, JSC, stated inter alia:
“PW1 was not at home when the robbers entered the house and forced PW2 at gun point to show them PW1’s room. For an act to constitute robbery, there must be that experience by the victim of fear and intimidation brought about by apprehension of possible violence to his person before the robbery. The fear of possible injury instilled on the victim must of necessity precede taking. It was PW2 who was at the scene of the robbery. She and not PW1 saw the robbers and they threatened the violence. If the charge had been framed to state that the robbery had been committed in the residence of Mr. and Mrs. Cosmas Azodiro in which the robbers made away with N1,827,000.00 belonging to PW1 the charge would have stuck.”
In his leading judgment, Nweze, JSC, held:
“With profound respect, that incongruous and absurd approach betrayed their Lordships’ misconception of the nature of the offence in question. Contrariwise, it is the experience of the victim, embodied in the fear and intimidation which eventuates from the dread of potential aggression to his person prior to the robbery/ that defines the offence of robbery. It is against this background that I, entirely, endorse the contribution of Tobi JSC in Fatai Olayinka v. The State 30 NSCQR 149, 172-173, Tobi JSC that: What makes an offence under the Act, in which the accused persons are charged, one of the armed robbery is the use of firearms as offensive weapon. Now the proof of corpus delicit (sic) in an armed robbery case consist (sic) of proof that property has been fraudulently taken by an assault or by putting the fear of life or bodily injury into the victim. It may be proved by both direct and circumstantial evidence. For an act to constitute robbery, there must be that experience by the victim of fear and intimidation brought about by apprehension of possible violence to (sic) person before the robbery. The fear of possible injury instilled on the victim must of necessity precede the taking. I believe that intimidation or constructive force by which what is commonly described as fear of God is put in a person and in which a crime of robbery is committed shall include all administration of force or menace and other means by which the victim is put in fear sufficient to sustain at the material time free exercise of his will power as to make it awfully difficult or near impossible for him to offer any resistance to anyone taking his property. (Italics supplied for emphasis). The point being made here is not that the assailants should have perpetrated or inflicted violence on the victim. The main consideration is the threat of the use of violence if only such a threat conduced to fear in the mind of the victim that non-compliance would impel the infliction of violence on him, Otti v. State [1991] 8 NWLR (pt. 207) 103, 118; Nwomukoro v. The State (1995) 1 NWLR (pt.372) 432, 443; Ajiloye v. State (1983) 6 SC 11; Okobi v. State [1990] 6 NWLR (pt 155) 125.”
Per NWEZE, JSC (Pp. 31-33, paras. F-E)
This issue is common to all the accused persons, and must necessarily be the same for the appellant herein on the application of the doctrine of stare decisis.
​The submission of the respondent’s counsel that somebody can be robbed of his property in his absence is a profound misconception of the point made by their Lordships of the apex Court, and the nature of the offence of robbery. The learned Justices did not say that a person cannot be robbed of his properties in his own absence, and it is also not the point being made by me in this appeal. Not at all. The point being made is that the charge must be drafted to reflect the name of the victim who experienced the threat and intimidation by the armed robbers and who must also testify to his experience in their hands.
The point to be made in a single sentence to put finality to this appeal is that the evidence adduced by the prosecution is incongruous with the charge, and therefore cannot sustain the charge.

This issue renders the other issues argued otiose, for even if they are resolved in favour of the respondent, the Court cannot possibly return a finding allowing the appeal. If for instance a finding is returned that the appellant was properly identified as one of the armed robbers, who attacked and robbed PW2 on 15th December, 2005, the question will now turn to whether there is a charge against him for robbing Assumpta Azodiro before the Court?

On the other hand, whether there is any evidence before the Court that the appellant Cosmas Azodiro whose name appears in the charge sheet is the person that was robbed on 15/12/05.

​The answer to either of the questions is No. In that case, delving into those matters becomes an academic exercise. It would have been otherwise if the decision in Onyedikachi Osuagwu v. The State (supra) was a decision of an intermediate Court like the Court of Appeal on which lies the duty to consider all issues committed to it for determination.

What then is an academic or hypothetical questions/issues, and whether Court can entertain such issues or questions.
The case of APC & Ors. v. Enugu State Independent Electoral Commission & Ors. (2021) LPELR 55337 (SC), pp. 43 – 44, para A, defines the concept as follows:
In Ardo vs INEC (2017) LPELR-41919 (SC), this Court per Augie, JSC gave an in-depth analysis of what an academic or hypothetical suit is, to wit: “What is an academic question? It is simply an issue that does not require answer or adjudication by a Court; hypothetical or moot question. See Agbakoba vs INEC (2008) 18 NWLR (Pt. 1119) 489, where this Court, per Chukwuma Eneh further explained that- ‘An action becomes hypothetical or raises mere academic point when there is no live matter in it to be adjudicated upon or when the determination holds no practical or tangible value for making a pronouncement upon it; it is otherwise an exercise in futility. When an issue has become defunct, it does not require to be answered or controvert about and leads to making of bare legal postulations, which the Court should not indulge in; it is like the salt that has lost its seasoning. And like salt in that state, it has no practical value to anybody and so also a suit in that state has none.” In simple terms, an academic issue or question does not relate to the live issues in the litigation because it is spent as it will not ensure any right or benefit on a successful party.”
Per KEKERE-EKUN, JSC (Pp. 43-44, para A).

It is settled law that Courts do not indulge in wasteful and futile exercise by giving judgment in respect of academic or hypothetical questions:- Kubor & Anor v. Dickson & Ors. (2012) LPELR–9817 (SC), p. 72, para A, Dr. Tunde Bamgboye v. University of Ilorin (1999) LPELR–737 (SC) pp. 37–38 paras E–C, Anyagham v. FBN Plc (2021) LPELR–55905 (CA), pp. 32–34, paras B–A.

With this I resolve the sole issue distilled for determination in favour of the appellant.

​The appeal is therefore meritorious, and is hereby allowed. Consequently, the judgment of the trial Court delivered in Suit No. HAM/64C/2006 is hereby set aside. The conviction and sentence are therefore quashed, and the appellant is ordered to be released from the Correctional Service forthwith.

IBRAHIM WAKILI JAURO, J.C.A.: I have had the privilege of reading before now, the draft judgment just delivered by my learned brother James G. Abundaga, JCA. His Lordship has dealt with all the issues raised in this appeal such that I have nothing to add other than to agree with his reasoning and conclusions. I equally allow the appeal and abide by the orders made by his Lordship in the lead judgment.

SAMUEL ADEMOLA BOLA, J.C.A.: I have read the draft of the judgment just delivered by my learned brother, JAMES GAMBO ABUNDAGA, JCA. I have no cause to disagree with the reasons and conclusion of my learned brother as embodied in the judgment.

​By reason of the foregoing, I abide by the conclusion and the consequential orders made.

Appearances:

J. C. Okafor. For Appellant(s)

C. N. Akowundu, P.S/S.G., MOJ, Imo State, with him, G. Eguagu, E. U. Nwachukwu-Oke, V. E. Ekemgba, and J. U. Iwuagwu. For Respondent(s)