IFEANYI MADUAKO v. THE STATE
(2019)LCN/13590(CA)
In The Court of Appeal of Nigeria
On Friday, the 28th day of June, 2019
CA/K/151/C/2017
JUSTICES
SAIDU TANKO HUSSAINI Justice of The Court of Appeal of Nigeria
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria
JAMES GAMBO ABUNDAGA Justice of The Court of Appeal of Nigeria
Between
IFEANYI MADUAKO Appellant(s)
AND
THE STATE Respondent(s)
RATIO
BURDEN OF PROOF IN CRIMINAL CASES
The burden duty is on the prosecution to prove the guilt of an accused person. He does so by leading credible evidence pointing to the guilt and culpability of the accused person. If he failed to lead any evidence or for any reason at all, evidence led by the prosecution was expunged from the record, the case of the prosecution is for that reason, rendered barren, bare and unfulfilled. The accused, in those circumstances is entitled to an order of discharge and acquittal. PER HUSSAINI, J.C.A.
JAMES GAMBO ABUNDAGA, J.C.A. (Delivering the Leading Judgment): The Appellant and one other were charged before the High Court of Justice of Katsina State Presided over by Hon. Justice Sanusi Tukur for offences of Criminal Conspiracy to commit Armed Robbery contrary to Section 6(b) of the Robbery and Firearms (Special Provision) Act, Cap. R11 LFN, 2004, and attempt to commit Armed Robbery contrary to Section 2(2)(b) of the Robbery and Firearms (Special Provision) Act, Cap. R11 LFN, 2004. They pleaded not guilty and therefore the case proceeded to trial in which the prosecution called witnesses and tendered Exhibits while the defence also testified. At the end of the trial, the trial judge found them guilty and convicted them as charged, and sentenced them to death.
Not satisfied with the Judgment, the appellant who was the 2nd accused person filed a notice of appeal containing 8 grounds of appeal. The Appellant subsequently sought and obtained leave of this Court to amend his notice of appeal. The amended Notice of appeal containing 9 grounds of appeal was filed on 26th March, 2018.
?The grounds of appeal without their particulars (even though,
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save for ground 8 (the omnibus ground) supplied) are as hereunder reproduced for case of reference;
GROUND 1
The judgment delivered by the Court is a nullity as it was delivered contrary to the mandatory provision of Section 269 Criminal Procedure Code, in that it was not signed before being delivered.
GROUND 2
The learned trial judge erred in law and misdirected himself which occasioned miscarriage of justice when His Lordship held that the Appellant did not have a defence to the charge.
GROUND 3
The learned trial judge erred in law when his Lordship sentenced the Appellant to death under Section 6(b) of the Robbery and Firearms (Special Provisions) Act, Cap. R11 Laws of the Federation of Nigeria, 2004.
GROUND 4
The learned trial judge erred in law when his Lordship held that the Appellant did not prove his innocence for his failure to call his customer one Obinna as a witness to corroborate his evidence.
GROUND 5
The learned trial judge erred in law having held and agreed that the Appellant has sufficiently given account or established where he was arrested, but made a summersault when his Lordship
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held that:-
more damaging is why the 2nd accused who was coming from Kano and heading to D/ma Road which is where the Kano Motor Park is situated, where was he arrested in his words ?along Mani Road? which is quite a vicinity within the area of the Robbery incidence
GROUND 6
The learned trial judge erred in law when his Lordship ignored and disregarded the decision of this Honourable Court in Onafowokan v. State (1986) 2 NWLR (Pt. 23) 496 which is to the effect that unless there is a stronger evidence, the trial Court ought not to disregard defence of alibi.
GROUND 7
The learned trial judge erred in law when he admitted Exhibit 5 being the purported confessional statement of the Appellant, which exhibit was relied upon by the Court in convincing the Appellant.
GROUND 8
The judgment is against the weight of evidence adduced during trial.
GROUND 9
The learned trial judge erred in law when his Lordship assumed jurisdiction over the matter.
?
The record of appeal was compiled and transmitted on 17th March, 2018. Thereafter briefs of argument were filed. The
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appellant?s brief of argument settled by J. J. Usman, Esq., was filed on 19th April, 2018.
Therein, five issues were formulated for determination. The issues are:
?(1) Whether the lower Court lacked jurisdiction to entertain the matter (Ground 9).
(2) Whether a judgment that is unsigned is not a nullity (Ground 1).
(3) Whether the learned trial judge was right when his Lordship held that the prosecution has proved its case beyond reasonable doubt against the Appellant (Grounds 3, 5, 7 and 8).
(4) Whether the defence of alibi raised by the Appellant was sustainable (Grounds 2 and 6).
(5) Whether the learned trial judge was right in law when his Lordship held that the appellant did not prove his innocence for his failure to call his customer, one Chika Obinna as a witness to corroborate his evidence (Ground 4).”
Arguments were canvassed on the issues. The Respondents? brief of argument, settled by Abu Umar, Esq, (Senior State Counsel) Ministry of Justice Katsina State was filed on 1st April, 2019 and deemed properly filed on 2nd April, 2019. The learned Senior State counsel distilled three issues for
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determination, on which he canvassed arguments in the Respondent?s brief of argument. The issues are as follows: ?(1) Whether the trial Court (lower Court) had not complied with Sections 185 and 265 of the Criminal Procedure Code, Cap 37, Laws of Katsina State, 1991, warranting this Honourable Court to set aside the decision of the lower Court.
(2) Whether, going by the prosecution (Respondent) before the lower Court, the Respondent had proved beyond reasonable doubt against the appellant.
(3) Whether the defence of Alibi could avail the Appellant.?
The issues formulated by both the Appellant and the Respondent are comprehensive enough to dispose of all the complaints raised in the grounds of appeal. However, the Appellants issues are more specific. I therefore adopt them for the determination of the appeal.
RESOLUTION OF ISSUES
ISSUE ONE
Whether the lower Court lacked the jurisdiction to entertain the matter.
The argument of learned counsel for the appellant on this issue is predicated on the provision of Section 185 of the Criminal Procedure Code which requires leave of the High Court before a
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charge can be preferred against an accused person. However, arguing the same issue under the Respondents issue one Learned Respondents? counsel submitted that Katsina State has its own Criminal Procedure Code, known as the Criminal Procedure Code (CPC), Cap. 37, Laws of Katsina State 1991, section 185 of which provides:
?No person shall be tried by the High Court unless:
(a) A charge is preferred against him; or
(b) A charge of contempt is preferred against him in accordance with the provisions of Section 314 or 315.?
Counsel therefore submitted that unlike the Criminal Procedure Code law which is of general application in the whole of the Northern States, which requires leave, the above provision does need require leave, and therefore all the cases relied on and cited by the Appellant are not applicable in the instant appeal. The Appellant filed no reply to this submission, and I take it to be a concession. And as can be seen in Section 185 of the Criminal Procedure Code, Cap. 37 Laws of Katsina State, 1991 no leave of the High Court is required to prefer a charge against an accused person at the High Court. Therefore
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the Appellant was properly arraigned, and the lower Court rightly assumed jurisdiction over the matter. I therefore resolve issue one in favour of the Respondent.
ISSUE TWO
Whether a judgment that is unsigned is not a nullity.
This issue is attended to by the Respondent in issue one in the Respondent?s brief of argument. That an unsigned judgment is a nullity has not been disputed by the Respondent. What in essence, the Respondent?s counsel is contending is that the judgment was actually signed. He referred this Court to pages 122-123 of the record of appeal which shows that the judgment was signed. Under Section 269 of the Criminal Procedure Code, every judgment must amongst other things be dated and signed, and being mandatory renders an unsigned judgment a nullity. See Awoniyi v. Aleshinloye (1998) 9 NLWR (Pt. 564) 71 @ 76, Paras C-D.
However, in the instant appeal, the record of appeal at pages 122-123 shows that the judgment was signed and dated. It should be noted that what is normally forwarded as record of appeal is a certified true copy of the judgment, and not being the original, it cannot bear the signature of the
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Judge, but the ?signed? referred to is to show that the Original Copy was signed. The Appellant has not produced the original before this Court to show that the trial judge did not sign it. Therefore there is no substance in the complaint. This leads me to the resolution of issue two in favour of the Respondent.
ISSUE THREE
Whether the learned trial judge was right when his Lordship held that the prosecution has proved its case beyond reasonable doubt against the Appellant.
The Respondent?s reaction and argument on this issue is accommodated in the Respondent?s issue two. However, the Respondent is silent on certain salient issues raised and argued by the Appellant under the issue. I think it is instructive to commence my consideration of this issue with those salient issues the Respondent decided to keep mute on.
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It was contended for the Appellant that the evidence of the Prosecution witness goes to no issues on the ground that all the Prosecution witnesses PW1, PW2, PW3, PW4, PW5, PW6 and PW7 have no written statements annexed to the charge, and this, counsel submitted is contrary to law. He submitted that it
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is settled law that failure to attach the statement of Prosecution witnesses to the charge renders the proceedings a nullity. On this submission, counsel placed reliance on the following cases Ugwu v. State (2013) 14 NWLR (Pt. 1374) 257 @ 276-277, Paras F-A, Ohwovoriole v. FRN (2003) 2 NWLR (Pt. 803) 176 @ 189, Paras F-H, Olowoyo v. State (2012) 17 NWLR (Pt. 1329) 346 @ 371 Paras F-G,(2012) LPELR-7965 (SC), Gboko v. State(2012) LPELR-7965 (SC),, Grange v. FRN (2010) 7 NWLR (Pt. 1192) 1351 (2009) LPELR-8853 (CA), Gboko v. State (2007) 17 NWLR (Pt. 1063) 272 @ 304-305, Paras G-E.
Counsel therefore went further to submit that the evidence of PW1, PW2, PW3, PW4, PW5, PW6, and PW7 ought to be expunged from the record since these witnesses do not have their written statements attached to the charge. It is his further submission that if the evidence of these witnesses is set aside or expunged from the record the charge becomes hollow and has no hanger upon which to stand. He thus urged this Court to set aside the decision of the lower Court and to discharge and acquit the appellant. As I have earlier stated the Respondent?s counsel is mute on this submissions and must deemed to
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have conceded them.
Indeed the charge is without the written statements of the prosecution witnesses attached to it. I am therefore bound by the decisions relied on by the Appellant. The evidence of the prosecution witnesses are hereby expunged from the record.
The expunge of the evidence of the prosecution witnesses appears to settle the other submissions on issue three. These submissions are based on the burden and standard of proof required in proof of the offence of armed robbery; whether Exhibit 5 (the confessional statement) was proved to be voluntary, whether the lower Court properly directed itself on the principle of law on the assessment of the quality of the confessional statement before convicting the appellant based on it.
The evidence of the prosecution witnesses, having been expunged, considering those other issues will amount to an academic exercise without any utilitarian value since the said submissions are hinged on the evidence of the prosecution witnesses and the Exhibits including Exhibit 5 (the Confessional Statement) which was tendered through the prosecution witnesses. Without much ado, issue three is hereby resolved
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in favour of the Appellant.
ISSUE FOUR
Whether the defence of alibi raised by the Appellant was sustainable.
The Respondent dealt with this issue on his issue three. Learned Appellant?s counsel approached this issue by first defining what an alibi is by reference to the case of Silas Sule Mohammed v. State (2014) 12 NWLR (Pt. 1421) 387 @ 430 and the case of Ozaki v. State (1990) 1 NWLR (Pt. 124) 92 @ 109 Paras C-G. It was submitted for the Appellant that in an offence requiring physical presence, an alibi set up by the accused person must be investigated thoroughly by the police. In support of this submission, counsel relied on Chukwu v. State (1996) 7 NWLR (Pt. 463) 686 @ 702. It was contended that the Appellant informed the police of his where about as at the time of the commission of the alleged crime, and thereby raising the defence of alibi at the earliest possible time but the police refused to investigate it, and this occasioned miscarriage of justice on the appellant. It was further contended for the appellant that unless there is stronger evidence, the trial Court ought not to disregard the defence of alibi set up by the
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Appellant. Counsel placed reliance on the case of Onafowokan v. State (1987) NWLR (Pt. 61) 538 @ 553 Para G.
For the Respondent, it was contended that the Appellant raised the defence of alibi for the first time during his evidence in Court. It was submitted that the defence of alibi must be raised at the earliest time with sufficient particulars of the accused person?s whereabout to enable the police disprove it, failure of which the accused person will be entitled to an acquittal. Reliance for this submission is placed on the case of Nwaturuocha v. State (2011) 3 SCNJ 148 @157. Respondent?s counsel further submitted that having not raised the defence at the appropriate time its rejection by the Court was right in law.
The Appellant allegedly made a confessional statement (Exhibit 5). This can be found at pages 134-135 of the record of appeal. I have taken time to carefully read the statement. Nowhere did he say he was somewhere else at the material time he was alleged to have committed the offence. It is therefore unarguable that the defence of alibii set up by him was made for the first time when testifying in his own defence. It was
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thus not raised at the time prescribed by law to enable the police investigate and disprove it. I am therefore in agreement with the Respondent that it was rightly rejected by the Court. I so hold. Issue four is hereby resolved in favour of the Respondent.
ISSUE FIVE
Whether the learned trial judge was right in law when his Lordship held that the appellant did not prove his innocence for his failure to call his customer, one Chika Obinna as a witness to corroborate his evidence.
The defence of alibi if raised at the earliest possible time and if it is believed by the Court is a complete defence. In this case, as earlier resolved by this court under issue 4, it was not raised by the Appellant at the earliest time to enable the police to investigate it. It was therefore rightly rejected by the Court. Issue five is hereby resolved in favour of the Respondent.
My conclusion on this appeal is that notwithstanding the resolution of issues 1, 2, 4 and 5 in favour of the Respondent, the appeal succeeds on issue 3 which was resolved in favour of the Appellant.
?
The appeal is hereby allowed. The conviction and sentence of the Appellant is
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hereby set aside.
SAIDU TANKO HUSSAINI, J.C.A.: I have read the lead judgment just delivered by my Lord, JAMES GAMBO ABUNDAGA, J.C.A, and I agree with the reasoning and conclusion that the appeal be allowed.
The burden duty is on the prosecution to prove the guilt of an accused person. He does so by leading credible evidence pointing to the guilt and culpability of the accused person. If he failed to lead any evidence or for any reason at all, evidence led by the prosecution was expunged from the record, the case of the prosecution is for that reason, rendered barren, bare and unfulfilled. The accused, in those circumstances is entitled to an order of discharge and acquittal. I am one with the reasoning and conclusion in the lead judgment hence an order of discharge and acquittal is entered for the Appellant. Ordered accordingly.
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have read in draft the judgment of my learned brother, James Gambo Abundaga, JCA, where the facts in contention and the issue arising have been set out.
?
I am in agreement with my learned brother that notwithstanding the resolution of issues Nos. 1, 2, 4 and 5 in favour
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of the Respondent that the appeal succeeds on the 3rd issue for determination which complains of the absence of written statements of the prosecution or witnesses annexed to the charge.
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While I also allow the appeal and set aside the conviction and sentence of the Appellant, I go further to order a retrial of this case, as the success of this appeal is merely on a technical ground, unrelated to the merits of the case before the lower Court.
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Appearances:
J. J. Usman, Esq.For Appellant(s)
Abu Umar, Esq. (Senior State Counsel, Ministry of Justice Kastina State)For Respondent(s)
Appearances
J. J. Usman, Esq.For Appellant
AND
Abu Umar, Esq. (Senior State Counsel, Ministry of Justice Kastina State)For Respondent
