JAMES PETER v. THE STATE
(2019)LCN/12764(CA)
In The Court of Appeal of Nigeria
On Thursday, the 28th day of February, 2019
CA/L/1037A/2017
RATIO
CRIMINAL LAW: WHETHER A PERSON CAN BE CONVICTED OF AN OFFENCE HE HAS NOT BEEN CHARGED
“…the law is well settled that a person cannot be convicted of an offence with which he was not charged. See OKABICHI & ORS. Vs. STATE (1975) LPELR 2406 (SC). In OKONOFUA & ANOR Vs. STATE (1981) LPELR 2489 (SC), the Supreme Court of Nigeria, per BELLO, JSC (Later CJN of blessed memory) held that it is just and fair that whenever it is anticipated that an accused person may be convicted of an offence other than the one with which he has been charged, such possibility should be brought to his notice and that he should be given the opportunity to meet that particular offence. See also NGGILARI Vs. STATE & ORS (2017) LPELR 42985 (CA); FELIX Vs. C.O.P. (2017) LPELR 43313 (CA).” PER TIJJANI ABUBAKAR, J.C.A.
EVIDENCE: EVALUATION OF EVIDENCE AND SUMMARY RE-STATEMENT OF EVIDENCE
“It must be said the evaluation of evidence is not the same as summary or restatement of evidence presented by the prosecution and the defense. See ANYANWU & ORS Vs. UZOWUAKA & ORS (2009) LPELR 515 (SC); MKPINANG & ORS Vs. NDEM & ORS (2012) LPELR 15536 (SC), of particular relevance is the decision of the Supreme Court in ADAMU & ORS Vs. STATE (1991) LPELR 73 (SC), where BELGORE, JSC (later CJN) held as follows: ‘Trial judge has a duty to consider all the evidence before hum, the (sic) more so in a criminal case where the guilt of the accused must be proved beyond reasonable doubt. S. 138 (1) of the Evidence Act Cap 112, Laws of the Federation of Nigeria, 1990. The justice of a case and statutory requirements will not be met if the trial Court considers one side of the case only. Adequate consideration must be given to both sides. In discharging this duty the Judge must evaluate all the evidence. It is not the justice of a case if the Judge without evaluating the evidence just holds that he believes one side and disbelieves the other, only evaluation will logically lead to his reasons for believing or disbelieving. Judges, being rational and objective persons, must differ in style. Some evaluate the evidence witness by witness; others issue by issue with the link of each witness with the issue, and then arrive at the conclusion. Whichever style a judge is used to or adopts, the essential thing is that he considers all the evidence before him by evaluating before arriving at his conclusion which is the finding…'” PER TIJJANI ABUBAKAR, J.C.A.
JUSTICE
TIJJANI ABUBAKARJustice of The Court of Appeal of Nigeria
ABIMBOLA OSARUGUE OBASEKI-ADEJUMOJustice of The Court of Appeal of Nigeria
JAMILU YAMMAMA TUKURJustice of The Court of Appeal of Nigeria
Between
JAMES PETERAppellant(s)
AND
THE STATERespondent(s)
TIJJANI ABUBAKAR, J.C.A. (Delivering the Leading Judgment):
This is an appeal against the Judgment of the High Court of Lagos State delivered by KASALI J. on the 22nd day of January, 2014 in Charge No: LCD/12/2006 found at pages 312 322 of the records of appeal wherein the learned trial Judge found the Appellant guilty of the two Counts charge of conspiracy to commit robbery contrary to Section 403 (A) of the Criminal Code Law of Lagos State, Cap C17, Vol. 2, Laws of Lagos State, 2003; and armed robbery contrary to Section 401 of the same Criminal Code Laws of Lagos State, 2003 as contained in the Information at Pages 2 3 of the records of appeal.
The Respondent in the instant appeal made an oral application at the Court below on the 3rd day of June, 2009 to withdraw the charges against the 1st and 3rd Defendants in the Information at Pages 2 3 of the Records of Appeal and that the Appellant herein and one Frank Anegbode remained the only defendants in the information. The Appellants held no objection to the oral application to withdraw against the 1st and 3rd Defendants. The Application was therefore accordingly granted, thereafter the Appellant alongside the other accused person pleaded not guilty when the Charge was read to them. Trial commenced and the Prosecution called three witnesses PW1 PW3 and tendered Exhibits P1 and P2; the Appellant and the other defendant, Frank Anegbode testified as DW1 and DW2. At the conclusion of trial, the learned trial Judge found the Appellant and the 2nd Defendant guilty of the 2 Counts Charge and sentenced both of them to 21 years imprisonment each.
Aggrieved by the judgment, the Appellant filed Notice of Appeal dated 25th of March, 2014 as contained at pages 324 327 of the Records of Appeal. The Appellants Brief of Argument was then filed by learned Counsel Osayaba Giwa-Osagie on the 28th day of October, 2018. The Respondents Brief on the other hand was filed on the 31st day of October, 2018 by learned Counsel T. K. Shitta-Bey. The Appellants counsel thereafter filed a Reply Brief on the 29th day of November, 2018 which was deemed as properly filed and served on the 3rd day of December, 2018. The Appellant through learned Counsel crafted three issues for determination, the three issues are set out as follows:
1. Whether the trial Judge was right in sentencing the Appellant on Count 1 of the charge when he is not named on the charge (Ground 1).
2. Whether the trial Courts failure to deliver a verdict in respect of each count of the alleged offences and separately for each of the Appellant and the co-accused person who stood trial alongside the Appellant was not a serious error of law invalidating the conviction of the Appellant (ground 2).
3. Whether there exits sufficient evidence of ground of conviction of the Appellant (Ground 3, 4 & 5).
In the Respondents brief of argument, learned Counsel for the Respondent adopted the issues crafted by the Appellant as its issues in the determination of this appeal.
SUBMISSIONS OF COUNSEL
ISSUE ONE
Learned counsel for the Appellant referred to Count 1 on the Charge Sheet at page 2 of the Records of Appeal to contend that the Appellant herein was not mentioned in the particulars of Count 1 of the Charge Sheet; and that he was convicted on an offence for which he was not charged at all. Counsel referred to Section 147 of the Criminal Procedure Law, Cap C18, Laws of Lagos State to argue that the Appellant herein cannot come under the umbrella of person unknown as contained in the law; and that the Appellant is not a person unknown. Learned counsel referred to Section 36 (6) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) to contend that an accused person must be informed promptly and in details of the offence he is alleged to have committed and that such information must be given to the accused person at the time of his arrest and not later than when he is arraigned for trial.
Learned counsel cited NJOKWU Vs. STATE [2013] 9 NWLR (Pt. 1360) Pg. 417 at 448; NWAIGWE Vs. OKERE (2008) LPELR-2095 (SC); NATIONAL UNION OF ELECTRICITY EMPLOYEES & ANOR Vs. BUREAU OF PUBLIC ENTERPRISES (2010) LPELR-1966 (SC) and Section 1(3) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) to submit that the Constitutional safe-guard prescribed for the Appellant (or an accused person) to know the nature and details of his offence in order not to be prejudiced at the trial as in the instant case at the lower Court. Counsel further cited AOKO Vs. FAGBEMI (1964) 1 All NLR 400; OLUFEMI BABALOLA & ORS Vs. THE STATE [1989] 7 SC (Pt. 1) Pg. 94 and OYEDIRAN & ORS Vs. THE REPUBLIC (1957) NMLR 122 at 125 to submit that although in some circumstances, an accused person may be convicted of an offence with which he was not charged, but such other offence must be kindred to the offences for which the accused person is charged and in respect of which proof has been made; and that ordinarily, it is illegal to convict an accused person for an offence for which he was not expressly charged.
Learned counsel for the Appellant relied on MAJOR A. A. ADEBAYO Vs. NIGERIAN ARMY & ANOR (2012) LPELR-79029 (CA) Pg. 15 16, Paras. E A and MATHIA GARUBA IDOKO Vs. THE STATE SC. 594/2014 to submit that there is no legal basis for the learned trial Judge to have imported the provisions of Section 401 of the Criminal Procedure Law, Cap C18, Laws of Lagos State into Section 403 (A) of the same law when the offence of robbery for which the Appellant was convicted is not lesser than the main charge or offence. Counsel submitted that the conviction and sentence of the Appellant should be set aside because of the failure to inform the Appellant of the allegations of conspiracy to rob. Learned counsel referred to pages 232 233 of the Records of Appeal to submit that in the instant case, the learned Counsel for the Prosecution only made an oral application in Court for the Charge to be amended but that no amendment of the Charge sheet was filed to include the Appellant on the second count for which he was found guilty.
Learned counsel cited ADEJOBI Vs. THE STATE [2011] 12 NWLR (Pt. 1261) Pg. 347 at 365, Para. D to contend that the purported amendment to the Charge in the instant case is a flagrant breach of the applicable law because contrary to Section 164 (4) of the Criminal Procedure Law, Cap C18, Laws of Lagos State, there was no endorsement on the Charge Sheet to reflect the purported amendment. Counsel urged this Court to declare the trial a nullity and set aside the conviction of the Appellant.
The learned Counsel for the Respondent while reacting to the submissions of the learned Counsel for the Appellant relied on KAYODE Vs. THE STATE (2016) LPELR-40028 (SC) to argue that by virtue of Section 403 (A) of the Criminal Procedure Law, Cap C18, Laws of Lagos State, any person who conspires with any other person to commit an offence under Section 402 of the Law is deemed to be guilty of the offence as a principal offender and shall be punished accordingly. Learned counsel cited AKINLOLU Vs. STATE (2017) LPELR-42670 (SC) Pg. 58-59, Para. D A to argue that to prove the offence of conspiracy, the Prosecution needs not establish direct evidence of meeting between the conspirators; that the Court can draw inference from the substantive offence; and that in this case, PW1 and PW2 who testified as eye witnesses gave evidence that the robbers were four in number and that the Appellant was the one who held the gun.
Learned counsel for the Respondent referred to the Information at page 2 of the Records of Appeal which was also relied upon by the learned Counsel for the Appellant; counsel relied on OGUDO Vs. STATE (2011) LPELR-860 (SC) Pg. 57-58, Para. F B and further referred to page 233 of the Records of appeal to submit that the learned Counsel for the Appellant did not object to the oral application by the prosecution to amend the Charge at the lower Court; and that the Appellant and one James Peter who were named as 1st and 2nd Defendants in the new charge pleaded not guilty after the Charge was read to them in English language. Counsel further referred to PML LTD Vs. FRN (2017) LPELR-43480 (SC) Pg. 26-29 Para. C to submit that the learned trial judge was right to have convicted and sentenced the Appellant of the offence of conspiracy which is Count 1 of the amended Charge which takes precedence over the original charge in the Information at page 2 of the Records of Appeal. Learned counsel cited OKPA Vs. STATE (2017) LPELR-42205 (SC) Pg. 33-34, Para. D A and urged this Court to discountenance the authorities relied upon by the Appellant and to resolve this issue in favour of the Respondent.
In the Reply Brief, learned Counsel for the Appellant relied on AKINLOLU Vs. STATE (Supra) to argue that the Respondent in the instant failed to prove the essential ingredients of the offence of conspiracy which is an agreement between two or more persons to do an unlawful act or an act which is legal by an unlawful means. Counsel further referred to THE STATE Vs. OLASHEHU SALAWU (2011) LPELR-8252 (SC) Pg. 40, Para. B G to contend that the Respondent failed to show that the trial Judge made any specific findings on the ingredients of conspiracy.
Learned counsel cited OJASANMI Vs. FGN (2018) LPELR-44331 (CA) and AWOTE Vs. OWODUNNI [1986] 5 NWLR (Pt. 46) Pg. 941 to submit that there was no amendment to the Counts in the Charge; that the amendment that was made was the removal/withdrawal of two Defendants from the Charge; and that the Respondent did not address the issue of the fact that the Appellant was not named in Count 1 yet was convicted of same. Counsel referred to OGUNSANYA Vs. STATE [2011] 12 NWLR (Pt. 1261) Pg. 401; ODUNLAMI Vs. NIGERIAN NAVY [2013] 12 NWLR (Pt. 1367) Pg. 20; OPARA Vs. A.G. FED. [2017] 9 NWLR (Pt. 1509) and KALU Vs. THE STATE [2017] All FWLR 1745 to contend that convicting the Appellant for an offence for which he was not charged is not a mere irregularity but a breach of the Appellants right to fair hearing in Section 36 (6) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).
ISSUE TWO
Learned counsel for the Appellant referred to the sentence at page 322 of the Records of Appeal and relied on ADEYEYE & ANOR Vs. THE STATE [1968] NMLR Pg. 87; STATE Vs. HASSAN AUDU [1972] 1 All NLR (Pt. 2) Pg. 197; ANOWELE Vs. THE STATE [1965] All NLR Pg. 100; AIGBE SAMSON & ANOR Vs. THE STATE [1976] NMLR Pg. 84; OYEDIRAN & ORS Vs. THE REPUBLIC (Supra); YESUFU Vs. THE INSPECTOR GENERAL OF POLICE (1960) LLR 140 and BANKOLE Vs. THE STATE [1980] 1 NCR Pg. 334 to submit that the said sentence is legally invalid. Counsel argued that where one or more defendants are charged for one or more counts of alleged offences, the trial Court must deliver a verdict in respect of each count and in respect of each accused person as the case may be; that a judgment shall specify the offence for which, and the section of the law under which the appellant was charged; and that the trial Court must pronounce its sentence separately on all the Courts of the offences in the Charge.
The learned Counsel for the Appellant contended that the there is no specific and unequivocal pronouncement of conviction for conspiracy to rob which was the offence contained in Count 1 of the Information before the learned trial Judge; and that the lower Court did not state the section of the law under which the Appellant could be said to have been convicted and sentenced of conspiracy to rob. Counsel further argued that the learned trial Judge erred by lumping the two Counts of the Information together and convicting the two accused persons jointly as charged. Relying again on OYEDIRAN & ORS Vs. THE REPUBLIC (Supra), learned counsel for the Appellant contended that the convictions should have been tied to each of the charge and to specific section of the law under which the accused is convicted and sentenced; and that the sentence should also be separate for each of the accused persons just as they entered their pleas.
Learned counsel argued that the Appellant was arrested on the 16th of January, 2015; arraigned on the 3rd day of January, 2009; and convicted on the 22nd of January, 2014. It was further argued that, assuming without conceding that the verdict and sentence by the trial Court was right; the said verdict and sentence is excessive because the trial Court failed to take into consideration the number of years the Appellant spent in custody before his conviction; learned counsel relied on DANIEL OKWEJI Vs. FEDERAL REPUBLIC OF NIGERIA (2003) LPELR-12387 (CA) to urge this Court to so hold.
Responding to the submissions of learned Counsel for the Appellant on the second issue for determination, the learned Counsel for the Respondent referred to the decision of this Court in APPEAL NO: CA/L/551C/2016 CHRISTOPHER EGOWA Vs. STATE delivered on the 2nd day of March, 2018 and the definition of verdict and sentencing and punishment in the Blacks Law Dictionary, 8th Ed. Counsel contended that it is the law that failure to pronounce sentence on a valid verdict cannot affect the validity of properly conducted proceedings. Learned counsel referred to PETER ILIYA AZABADA Vs. THE STATE (2014) LPELR-23017 (SC) and EJELIKWU Vs. STATE [1993] 7 NWLR (Pt. 307) Pg. 554 at 583 to submit that Appellant has not shown how the failure to pronounce sentence on the two counts adversely affected the right of the Appellant and thereby leading to a miscarriage of justice.
Learned counsel for the Respondent submitted that it is not every error committed by the lower Court that results in the decision being set aside by an Appellate Court; and that for an error to qualify as one that will inevitably lead to the setting aside of the decision/judgment, it must be substantial in nature and must have resulted in a miscarriage of justice to the Appellant. Counsel contended that where the error complained of is not substantial and likely to lead to a miscarriage of justice or has in no way resulted in an injustice to the Appellant as in the instant case, an Appellate Court will not set aside the Judgment because to do so will result in injustice to the Respondent representing the society at large. On the argument that the sentence was excessive and failed to take into consideration the number of years the Appellant spent in custody; learned counsel for the Respondent submitted that the punishment for armed robbery under the law is death and not years of imprisonment and yet, the Appellant herein, who ought to count himself lucky, was sentenced to 21 years imprisonment having been convicted of the two Count charge. Counsel urged this Court to resolve this issue in favour of the Respondent.
In the Reply Brief, Counsel for the Appellant relied on ALI MOHAMMED Vs. FEDERAL REPUBLIC OF NIGERIA (2016) LPELR-40471 (CA) to submit that convicting and sentencing the Appellant for a crime which he was not charged is not a mere irregularity as argued by the Respondent but a violation of Section 36 (6) (a) (e) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). Learned counsel relied on ATT-GEN., LAGOS STATE Vs. EKO HOTELS [2006] NWLR (Pt. 1011) Pg. 378 and DANIEL OKWEJI Vs. FEDERAL REPUBLIC OF NIGERIA (Supra) to submit that morality, sentiments and emotions have no place in judicial discussions; counsel reiterated that the trial Court erred when it failed to take into consideration the number of years the Appellant already spent in custody before his conviction.
ISSUE THREE
The Appellants contention under issue is that the Prosecution did not prove its case beyond reasonable doubt. Learned counsel for the Appellant referred to page 315 of the Records of Appeal to contend that the Trial Court placed heavy reliance on the testimony of PW3, Inspector Jimoh Lasisi who tendered Exhibits P1 and P2; counsel argued that the trial Judge refused the Prosecutions application for an adjournment because of the absence of PW3 thereby denying the Appellant the right to cross-examine PW3. Learned counsel referred to GARBA Vs. UNIVERSITY OF MAIDUGURI [1986] 1 NWLR (Pt. 18) Pg. 550 at 558, Ratio 51 to submit that the lower Court erred by relying on the Exhibits tendered by PW3 who was not cross-examined and consequently so doing occasioned miscarriage of justice, learned Counsel said Appellants right to fair hearing was breached. Counsel submitted further that the trial Judge ought to discountenance the evidence of PW3; and urged this Court to set aside the conviction of the Appellant on this ground.
Learned counsel further contended that the Written Statement of PW1 which is contained in the proof of evidence was not tendered in evidence; that PW1 in the said statement implicated his gateman and driver who were not called to testify; and that the Prosecution failed to tender the Written Statement of PW1 because it would weaken their case. Counsel referred to COP Vs. UDE [2011] 12 NWLR (Pt. 1260) Pg. 189 to submit that the failure by the prosecution to produce the gateman, the driver and the 1st and 3rd Defendants in the original charge should be taken that their evidence would not be favorable to the case of the prosecution. Learned counsel further referred to USUFU Vs. THE STATE [2007] 1 NWLR (Pt. 1020) Pg. 94 at 103, Ratio 16 to argue that the identity of the persons who purportedly robbed the Complainant was in issue throughout the trial and remains unresolved because the Appellant, at page 281 of the Records of appeal unequivocally denied the allegations of robbery and testified that he was arrested at the bus stop with other people when the police raided the place.
Learned counsel further referred to the Statement of PW1 at page 25 of the records of appeal to submit that PW1 stated that the Appellant and two others were arrested at the scene of the crime; counsel contended that if it were so, the weapons with which accused committed the purported crime would have been recovered and that the non-recovery of the weapons is an indication that the Appellant was arrested in line with the oral evidence of PW1. Learned counsel submitted that since the Appellant was not arrested at the scene of crime and PW1 did not name her attackers at the earliest opportunity, the proper identification of those arrested ought to have been conducted; counsel submitted that the Police did not follow this procedure and therefore, the benefit of doubt is in favor of the Appellant. Counsel urged this Court to so hold.
Responding on this issue, learned counsel for the Respondent referred to IFEANYICHUKWU AKWUOBI Vs. THE STATE (2016) LPELR-41389 (SC) to contend that in criminal prosecution, the guilt of a Defendant could be established before the Court through the confessional statement; the account of a direct eye witness and/or circumstantial evidence. Counsel submitted that in the instant case, two eye witnesses, PW1 and PW2 gave an account of the armed robbery as well as the role played by each of the Defendants and the Appellant herein was said to be the person who held the gun; counsel referred to the findings of the learned trial Judge at page 321 of the Records of Appeal to submit that this evidence was not controverted. Learned counsel referred to MATHEW NWOKOCHA Vs. ATTORNEY GENERAL OF IMO STATE (2016) LPELR-40077 (SC) Pg. 33, Paras. B D which is to the effect that evidence of a single witness if believed can be acted upon by the Court to establish a case beyond reasonable doubt except where the law requires corroboration.
Learned counsel further relied on KAMILA Vs. STATE (2018) LPELR-43603 (SC) Pg. 43, Paras. A F to submit that it is not the law that the Prosecution must tender the statement of a witness; rather, the defense had the opportunity to use the Statement to attack the veracity and credibility of the witness which the defense failed to do. Counsel further referred to AYINDE Vs. STATE (2018) LPELR-44761 (SC), Pg. 51, Paras. C E to submit that where an offender is arrested at the scene of crime, the need for identification parade is dispensed with. Learned counsel urged this Court to resolve this issue in favour of the Respondent; dismiss this appeal.
In the Reply Brief, the Appellants counsel urged this Court to discountenance the Respondents argument on this issue. Counsel referred to AYENI Vs. THE STATE (2011) LPELR-2095 CA/AE/C.27/2010 to submit that the Prosecution is bound to call a witness whose testimony or evidence will settle a vital issue; and that the failure of the Prosecution to call PW1s gateman and driver as witnesses to resolve the vital issue of conspiracy raises a presumption that their evidence would have been unfavorable to the Prosecution; and that PW1s statement which was not tendered is vital. With respect to the issue of identification, learned counsel for the Appellant argued that there was serious doubt as to the identity of the offender because the Appellant denied being arrested at the scene of the crime. Counsel further argued that the case of the Prosecution is fraught with manifest inconsistencies which rendered it doubtful; and that those doubts ought to be resolved in favor of the Appellant.
Learned counsel referred to KHALEEL Vs. THE STATE [1997] 8 NWLR (Pt. 516) Pg. 237 at 247; STATE Vs. DANJUMA [1997] 5 NWLR (Pt. 506) Pg. 512 at 528-529; GIRA Vs. STATE [1996] 4 NWLR (Pt. 443) Pg. 375 at 382; ONUBOGU Vs. STATE [1974] 9 SC 1; IBEH Vs. THE STATE [1997] 1 NWLR (Pt. 484) Pg. 632 at 649-650 and SHANDE Vs. THE STATE [2005] 22 NSCQR Pg. 756.
Learned counsel relied on OKEREKE & ANOR Vs. IBE & ORS (2008) LPELR-4714 (CA) and EZE Vs. FRN (2017) LPELR-42097 (SC) to submit that it is fundamental that an opportunity is given for cross-examination because it is the constitutional right of an accused person to cross examine a witness; and that where the Court fails to grant the Appellant the right to cross-examine the witness called by the Prosecution and proceeds to rely on same, it would amount to a breach of the Appellants right to fair hearing. Learned Counsel again urged this Court to allow the appeal.
RESOLUTION
It is the complaint of the Appellant in this appeal that he was convicted of an offence he was not charged with. I have no doubt at all that, the law is well settled that a person cannot be convicted of an offence with which he was not charged. See OKABICHI & ORS. Vs. STATE (1975) LPELR 2406 (SC). In OKONOFUA & ANOR Vs. STATE (1981) LPELR 2489 (SC), the Supreme Court of Nigeria, per BELLO, JSC (Later CJN of blessed memory) held that it is just and fair that whenever it is anticipated that an accused person may be convicted of an offence other than the one with which he has been charged, such possibility should be brought to his notice and that he should be given the opportunity to meet that particular offence. See also NGGILARI Vs. STATE & ORS (2017) LPELR 42985 (CA); FELIX Vs. C.O.P. (2017) LPELR 43313 (CA).
In the instant case, the prosecution/Respondent maintained that the Appellant was rightly convicted by the trial Court. According to learned Director of Public prosecutions, although the Appellant was not named in the 1st count of the original charge, this charge was later amended by the prosecution orally, which was not objected to by the Appellant, as reflected at page 233 of the records. It is also the case of the Respondent that having amended the original charge, the amended charge takes precedence over the original charge contained in the information at page 2 of the records of appeal.
Having regard to the foregoing therefore, I find it expedient to reproduce the original charge contained in the Information at page 2 of the records of appeal as well as the purported amendment made by the Prosecution found at page 233 of the records. The relevant part of the Information reads as follows and I quote:
At the Criminal Division of the High Court of Lagos State holden on the … day of 2006, the Court is informed by the Attorney-General on behalf of the state that:
PETER JOHNSON (M)
JAMES PETER (M)
JOHN KADIRI (M)
FRANK ANIEGBODE (M)
are charged with the following offences
STATEMENT OF OFFENCE 1st COUNT
Conspiracy to commit robbery Contrary to Section 403(A) of the Criminal Code Law, Cap C17, Vol. 2, Laws of Lagos State, 2003.
PARTICULARS OF OFFENCE
John Kadiri, Frank Anegbode with others now at large on or about the 16th day of January, 2005 at No. 24, Tawa Badiru Close, Lamgbasa, Ajah, in the Lagos Judicial Division conspired with yourselves to commit a felony to wit, armed Robbery.
STATEMENT OF OFFENCE 2nd COUNT
Armed Robbery contrary to Section 403(2)(a) of the Criminal Code Law, Cap C17, Vol. 2, Laws of Lagos State, 2003.
PARTICULARS OF OFFENCE
Peter Johnson, James Peter with others now at large, on or about the 16th day of January, 2005 at No. 24, Tawa Badiru Close, Lamgbasa, Ajah, in the Lagos Judicial Division while armed with offensive weapons to wit: A gun robbed one Alhaja Ayisat Badiru of the sum of (N300,000) Three Hundred Thousand Naira, 3,000 (Three Thousand Pounds Sterling), 2 new Nokia Handsets, one Gold wrist watch, one leather wrist watch, one long chain with pendant rings and two pairs of earrings.
Now, the Prosecution purportedly, by oral application in open Court, amended the above Information, during the proceedings of the Court held on the 3rd day of June, 2009 and captured at pages 232 to 233 of the records of appeal as follows:
Parties: 2nd & 4th defendant present.
Appearance: C.R. Odutola (Mrs.) for State A.O. Muheeb for defendants.
Odutola 1st & 3rd defendants are no longer parties. We have two witnesses in Court.
Muheeb The 2nd & 4th defendants have not been arraigned before in the Court.
Court Search the file, they have not been arraigned.
Registrar read and explain the charge to the defendant.
Registrar read and explain the charges to the 2nd & 4th defendants.
Odutola I apply to amend the charges to read James Peter and Frank Aniegbode.
Muheed No Objection.
Court Ordered as prayed.
Court Read the amended charge and explain same to the defendants.
Registrar Read the amended charge and explain the charge in English Language.
Court I am satisfied that the two count charge was read to the 1st and 2nd defendants by the Registrar of the Court in English Language and explained to the 1st & 2nd defendant pleaded not guilty to the two count charge.
From the above proceedings it is clear to me that the prosecution charged four defendants in Court from what is found at page 2 of the records of appeal, the defendants are: Peter Jonson, James Peter, John Kadiri and Frank Anegbode. The Prosecution at page 231 of the records of appeal through Counsel Odutola now informed the Court that 1st and 3rd Defendants are no longer parties, by implication meaning the charge against them had been dropped. The Registrar was then directed to read and explain the charge against the 2nd and 4th Defendants. The above proceedings of 3rd June 2009, gave me the impression that there were four defendants and others at large. Interesting enough, the 1st Court only mentioned John Kadiri, Frank Anegbode and others at large, while the 2nd Count only mentioned Peter Johnson, James Peter the Appellant and others at large. There is obvious mix up on the part of the prosecution.
Apparently realizing that it goofed, the prosecution on the 3rd day of June 2009 made an application through Counsel Odutola who said I apply to amend the charge to read James Peter and Frank Aniegbode. The learned trial Judge granted the application and ordered the amendment, the learned trial Judge said Ordered as prayed. The learned trial Judge went a step further to state as follows Read the amended charge and explain the charge in English language after the charge was read, the learned trial Judge then said as follows: I am satisfied that the two count charge was read to the 1st and 2nd defendants by the Registrar of the Court in English Language and explained to the 1st & 2nd defendant pleaded not guilty to the two count charge. The grievance of the Appellant in this appeal is that he was not charged in the 1st Count and therefore there was no trial and conviction, because the so called amendment of 3rd June 2009 was just a sham, the order for amendment and order that the amended charge be read to the Appellant made by the Court was just made for the records, this is because the amended charge did not show in the records of the Court, trial went on the basis of the old and defective information. The law is well settled that an accused person must enter his plea to an amended charge, failure to enter a fresh plea automatically renders the trial a nullity sees: SUMANYA ISSAH TORRI V. THE NATIONAL PARK SERVICE OF NIGERIA 2011 LPELR-8142 (SC).
I conducted further search into the records of the lower Court and form the view that it is true, there was no amendment to the charge, the proceedings of 3rd June 2009 did not in my view amount to proper amendment of charge, the charge was in fact not amended. Appellant was tried and convicted without a formal charge against him. It is interesting to note that at page 312 of the records of appeal, trial, conviction and sentence were still on the basis of the information. The learned trial Judge on the 22nd day of January 2014 delivered his Judgment and at pages 312 -313, the learned trial Judge said as follows:
JUDGMENT
The defendants are charged with the following offence:
STATEMENT OF OFFENCE 1st COUNT
Conspiracy to commit robbery Contrary to Section 403(A) of the Criminal Code Law, Cap C17, Vol. 2, Laws of Lagos State, 2003.
PARTICULARS OF OFFENCE
John Kadiri, Frank Anegbode with others now at large on or about the 16th day of January, 2005 at No. 24, Tawa Badiru Close, Lamgbasa, Ajah, in the Lagos Judicial Division conspired with yourselves to commit a felony to wit, armed Robbery.
STATEMENT OF OFFENCE 2nd COUNT
Armed Robbery contrary to Section 403(2)(a) of the Criminal Code Law, Cap C17, Vol. 2, Laws of Lagos State, 2003.
PARTICULARS OF OFFENCE
Peter Johnson, James Peter with others now at large, on or about the 16th day of January, 2005 at No. 24, Tawa Badiru Close, Lamgbasa, Ajah, in the Lagos Judicial Division while armed with offensive weapons to wit: A gun robbed one Alhaja Ayisat Badiru of the sum of (N300,000) Three Hundred Thousand Naira, 3,000 (Three Thousand Pounds Sterling), 2 new Nokia Handsets, one Gold wrist watch, one leather wrist watch, one long chain with pendant rings and two pairs of earrings.
The Defendants pleaded not guilty to the charge when they were arraigned before the Court.
As may be seen clearly from the charge, the learned trial Judge referred to the charge filed before him, the prosecution failed to properly amend the charge, Appellant was not charged in Count 1. At page 322 of the records of appeal the learned trial Judge in finding the Appellant guilty said as follows:
‘…I hold that the prosecution has been able to establish the guilt of the defendants by cogent, positive and reasonable evidence. The prosecution has proved the guilt of the defendants beyond reasonable doubt. And therefore the defendants are each found guilty of each of the 2 counts as charged…’
With all due respect to the learned trial Judge, the Appellant was not charged for conspiracy to commit armed robbery in count 1, this is evident from the count as reproduced in this Judgment. The learned trial Judge could not have found the Appellant guilty and sentenced him to imprisonment when there was no charge against him. Every citizen has the right to be tried under a written law, a citizen cannot be tried and convicted without a formal charge against him, he has the right to know the charge against him in substantial details and is entitled to sufficient facilities and materials to prepare his defense. Appellant in the instant appeal was not charged for robbery but the lower Court found him guilty and sentence him to 21 years, this is certainly wrong.
Section 36 (12) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) provides as follows: Subject as otherwise provided by this Constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefor is prescribed in a written law, and in this subsection, a written law refers to an Act of the National Assembly or a Law of a State, any subsidiary legislation or instrument under the provisions of a law. The Appellant was tried, convicted and sentenced without a formal charge, this is obviously an infraction on the right of the Appellant to fair hearing and without more this alone is sufficient to invalidate the trial at the Court below. Consequent upon the purported amendment, Peter Johnsons name was removed, with the implication that the first count will reflect that the Appellant committed armed robbery with other persons, now at large. Only this count can be sustained against the Appellant in so far as the Appellant was not named in the first count as having been alleged to commit the offence of conspiracy armed robbery. I am inclined to accept the submissions of learned Counsel for the Appellant with the support of the law that an accused person, the Appellant in the instant appeal cannot be convicted and sentenced in respect of an offence he was never charged with. Issue one is resolved in favour of the Appellant against the Respondent.
Another area of grievance by the Appellant has to do with the approach adopted by the learned trial judge in convicting and sentencing the Appellant and another accused person, to twenty-one (21) years imprisonment, without specifying the particular counts the sentence relates to. Again, the law is settled on a chain of decisions that separate verdicts must be delivered in respect of separate counts of offence. See the decision of this Court in IKENSO Vs. STATE (2016) LPELR 41041 (CA), where my learned brother, OGUNWUMIJU, JCA, held that where there are several counts on the same information, separate verdicts must be delivered in respect of several counts. In other words, a trial Court must pronounce its sentence separately on all counts of offences in a case, otherwise the entire proceedings is certainly liable to being set aside on appeal.
In the present appeal, after holding at page 322 of the records of appeal, that the prosecution has proved the guilt of the defendants beyond reasonable doubt and are each found guilty of the 2 counts as charged, the learned trial judge stated that the 2 defendants are each sentenced to 21 years imprisonment with hard labour. The law is settled that an error or failure to return a separate verdict on each count against each accused will not result in quashing the verdict, where no miscarriage of justice has occurred. See SOLOLA & ANOR Vs. STATE (2005) LPELR 3101 (SC); EYISI Vs. THE STATE [2000] 15 NWLR (Pt. 691) 555. In ADIJEH Vs. C.P. NASARAWA STATE (2018) LPELR 44563 (CA), this Court, per my lord and learned brother SANKEY, JCA held that:
The law has been reiterated and reinforced by several judicial pronouncements from the apex Court as well as from this Court. Nonetheless, since the ultimate objective of every Court is to do substantive justice and as much as possible, not to sacrifice justice on the altar of technicalities, the Supreme Court in giving recognition to this policy and philosophy of justice, has held that it is not in all cases that such an error will be fatal to the case. For instance, in the case of Solola V State (2005) LPELR-3101(SC) 20, paras D-G, the Supreme Court per Edozie, JSC held as follows – “Where several persons are tried together, separate verdicts must be returned in respect of each of the accused persons and where there are several counts of information, separate verdicts must be delivered in respect of the several counts.
However, the error in failing to return a separate verdict on each count against each accused will not result in quashing of the verdict, whereas in the instant case, no miscarriage of justice has occurred. See City Engineering (Nig.) Ltd V NPA (1999) 11 NWLR (Pt. 625) 76 at 89; Eyisi V State (2000) 15 NWLR (Pt. 691) 555 to 574.” (Emphasis supplied) Again in Onyejekwe V State (1992) LPELR-2731(SC) 12-13;(1992) NWLR (PT. 230) 444 at 453 SC, the Supreme Court per Omo, JSC, held – “Once it is clear, from the evidence led and/or findings of the trial Judge that the appellant has been found to have committed the offence charged, the failure to record the conviction should not prevent the appellate Court from so holding. It should be regarded as an irregularity/slip and not an illegality. The decision of Baker Ag. CJ in Seedi’s case (supra) seems to me still correct when he held that – “The omission is one of procedure and might be described as a mere technicality and which in our opinion cannot be considered fatal and is within the power and duty of the Court to remedy so that substantial justice may be done.”
Further, in exercise of its powers under Section 16 of the Court of Appeal Act 1976 and Section 22 of the Supreme Court Act, the Court of Appeal and the Supreme Court respectively can enter the correct conviction or sentence as the case may be, without sending the case back to the trial Court for the record to be corrected.” (Emphasis supplied) In his own contribution to the Judgment of the Court, Belgore, JSC (as he then was) added to the discussion as follows at page 15 of the E-Report –
“Once evidence is clear and is supported by law the mere fact that the sentence based on the conviction is not in line with the appropriate statutory wording should be regarded as a mere irregularity not vitiating the conviction.”
(Emphasis supplied) From the above, it is evident that while a separate verdict was pronounced in respect of count one of the charge, it is still deficient as a separate sentence was not pronounced; while separate verdicts were not entered at all in counts 2 to 7 of the charge. There was therefore non-compliance with the law in that the learned trial Judge lumped the verdicts and the sentences together. However, in view of the law and the decisions of the apex Court, I find the failure of the trial Court to pronounce separate verdicts on each count of the counts of charge an irregularity/slip against procedure which is not fatal to the proceedings, as it is within the power and duty of this Court to remedy so that substantial justice may be done.”
In the instant appeal, is it proper to hold that no miscarriage of justice visited the Appellant by the approach adopted by the learned trial judge in lumping the verdicts and sentences together? In my humble view, from the onset at the stage of arraignment the constitutional right of the Appellant to fair hearing and trial became compromised, bruised and subjected to grievous infraction. As I have earlier made it very clear that, the Appellant was only charged in respect of the offence of Armed Robbery but from the judgment of the lower Court, he was convicted and sentenced on the two counts of Conspiracy to commit Armed Robbery and Armed Robbery; a defendant who was not charged with committing a particular offence got convicted and sentenced to a term of imprisonment on the offence properly charged and the one not charged, the Appellant has obviously become a victim of judicial labyrinth, mesh and complications, he has been thrown into judicial interlock.
Let me ask, the total number of 21 years for conspiracy and Armed Robbery, how can one determine that some number of years belong to conspiracy and others belong to armed robbery? This is impossible, with all due respect to the learned trial Judge, he had every obligation to particularize conviction and sentence, unfortunately this is not the case here, the sentence was lumped together, this is a community sentencing and in my view created serious failure of justice against the Appellant, it is therefore fatal to the entire proceedings. Not only is there no concrete and clear-cut demarcation as to the sentence in which the Appellant will serve in respect of the respective counts of offence he is charged with, the Appellant was also erroneously convicted of an offence with which he was never charged. The error here is two-fold and cannot in my view be viewed as a mere slip or technicality. The lower Court engaged in judicial over-drive which is substantial and strikes at the roots and tap roots of the trial. Issue number two is resolved in favour of the Appellant against the Respondent.
With regards to the third issue formulated by the Appellant, I must state at once that it is duty of the trial Court to evaluate evidence generated at the trial by parties in support of their respective cases. As it relates to the instant case, it is mandatory on the trial Court to evaluate the evidence presented by the prosecution in support of its case against the defendant in order to determine whether the prosecution has proved the guilt of the accused person beyond reasonable doubt. It must be said the evaluation of evidence is not the same as summary or restatement of evidence presented by the prosecution and the defense. See ANYANWU & ORS Vs. UZOWUAKA & ORS (2009) LPELR 515 (SC); MKPINANG & ORS Vs. NDEM & ORS (2012) LPELR 15536 (SC), of particular relevance is the decision of the Supreme Court in ADAMU & ORS Vs. STATE (1991) LPELR 73 (SC), where BELGORE, JSC (later CJN) held as follows:
‘Trial judge has a duty to consider all the evidence before hum, the (sic) more so in a criminal case where the guilt of the accused must be proved beyond reasonable doubt. S. 138 (1) of the Evidence Act Cap 112, Laws of the Federation of Nigeria, 1990. The justice of a case and statutory requirements will not be met if the trial Court considers one side of the case only. Adequate consideration must be given to both sides. In discharging this duty the Judge must evaluate all the evidence. It is not the justice of a case if the Judge without evaluating the evidence just holds that he believes one side and disbelieves the other, only evaluation will logically lead to his reasons for believing or disbelieving. Judges, being rational and objective persons, must differ in style. Some evaluate the evidence witness by witness; others issue by issue with the link of each witness with the issue, and then arrive at the conclusion. Whichever style a judge is used to or adopts, the essential thing is that he considers all the evidence before him by evaluating before arriving at his conclusion which is the finding…’
I carefully read the entire judgment of the learned trial judge spanning from pages 312 to 322 of the records of appeal, and found that the learned judge did not take time to properly evaluate the evidence of the prosecution as well as the evidence generated by the defense, the learned trial Judge did not also make specific findings in respect of allegations against the Appellant. What the lower Court did in the judgment at pages 313 to 316 of the records of appeal was to summarize the evidence led by the witnesses for the prosecution as well as the defense. After a summary of the arguments canvassed by the counsel, the learned trial judge concluded at pages 321 to
322 of the records as follows:
The issues before the Court to consider herein is:
Whether or not the prosecution have been able to prove the offence the defendants were charged with beyond reasonable doubt to warrant the defendant been convicted.
During cross examination the evidence of how PW1 was able to recognize the defendants was not rebutted by the defense. The only question PW1 was asked under cross-examination was whether she knows the defendants or not before that date. The defense failed to establish that there was not enough time for PW1 to identify the defendants in view of his state of mind.
I hold that PW1 & PW2 had enough time to be able to identify the defendants, during the interrogation of the defendants about what documents to sign and therefore the issue of conducting identification parade raised by the learned counsel for the defendant does not arise. It was not established by the defense that the defendants put on masks and there is evidence before the Court that they were arrested at the scene of the crime.
The victims herein are the eye witnesses in the instant case. The evidence of PW1 and PW2 was not shaking at cross examination in respect of the identity of the defendants. In fact they gave details of what happened on that date, their evidence is enough corroboration the Court needed to convict on the confession in exhibits P1 and P2. It has been held by the Supreme Court that an Accused Person can be convicted on his confessional statement alone.
I do not have any doubt in my mind that the defense put up by the defendants in Court was an afterthought.
‘I hold that the prosecution has been able to establish the guilt of the defendants by cogent, positive and reasonable evidence. The prosecution has proved the guilt of the defendants beyond reasonable doubt. And therefore the defendants are each found guilty of each of the 2 counts as charged.
Appellants grievance is that he was unable to cross-examine PW3 who tendered Exhibits P1 and P2, the extra judicial statements of the Appellant and the co-accused, which was relied upon by the learned trial judge to convict the Appellant. PW3, an Inspector of Police attached to Lamgbasa Police Division, Lagos State Command tendered the statement allegedly made by the Appellant, whereupon the trial Court had to conduct trial-within-trial consequent upon an objection by the Appellant as to the voluntariness of the statement. PW3 never re-surfaced for cross-examination at the main trial. The Respondent failed to produce PW3 for cross-examination as the learned trial judge during the proceedings of 10th October, 2012 refused the prosecutions application for adjournment and suo motu closed the case of the prosecution and adjourned the case for the defendants to open their defense. I have no doubt at all that the effect of the failure by the prosecution to produce PW3 for cross-examination is that his evidence and statements tendered will be deemed inconclusive, inchoate and therefore ineffective and of no relevance to the Court, and therefore ought to be discountenanced.
See the decision of this Court in SHOFOLAHAN VS. STATE (2013) LPELR 20998 (CA), where it was held as follows and I quote:
‘it is settled law that a Court cannot act on the evidence of a witness that cannot be produced or located for cross-examination after he had been examined in chief – see Isiaka v. The State (2011) All FWLR (pt. 583) 1966, wherein it was held – “- – The platform on which the lower Court placed his reasoning for the conviction is weak and unjustifiable. A Court or Tribunal should never act on the evidence of a witness whom the other party wants to cross-examine, but cannot be reproduced or located for cross-examination after he must have been examined-in-chief. The most honorable thing for the lower Court would have been that the evidence of PW3, who tendered Exhibit 5 should have been expunged from the record of the Court or the lower Court should not have attached any weight to it because the essence of cross-examination is to test the veracity and accuracy of the witness and not just a jamboree or merry making. A witness who fails to make himself available for cross-examination should know that all his evidence goes to naught.”
See also the unreported Judgment of this Court delivered on 10/12/12 in Appeal No. CA/J/71C/2009 – Shehu Shegun v. The State, wherein it was held – “The aim of cross-examination is to enable the cross-examining party to demolish or weaken the case of the party being cross-examined to also allow the cross-examining party the opportunity of stating or representing its case through the witness of its opponents. In ensuring that an accused person’s right to fair hearing is manifestly protected, such accused person must be given the opportunity to examine either in person or by his legal practitioner the witnesses called by the Prosecution. The entire trial process revolves around this art of cross-examination. The Evidence Act actually underscores the purposes of cross-examination in Section 200, which provides inter alia “When a witness is cross-examined, he may in addition to the questions referred to be asked questions which tend – (a) To rest his accuracy, veracity or credibility, or (b) To discover who he is and what is his position in life, or (c) To shake his credit by injuring his character. To deprive an accused person of this opportunity amounts to gross violation of his constitutional right to fair hearing.”
See also AL-MUSTAPHA Vs. STATE (2013) LPELR 20995 (CA); ASUMOGHA Vs. STATE (2015) LPELR 24534 (CA).
PW3 tendered Exhibits P1 and P2, the Appellant expressed desire to cross-examine PW3, this witness was not produced for the Appellant to cross examine, this failure by the prosecution to produce the witness for cross examination deprived the Appellant of his constitutional right to fair hearing, as PW3 would have been subjected to cross-examination by the Appellant. I find it necessary to reproduce part of the proceedings of 10th October 2012.
While refusing the application for adjournment, the learned trial Judge said as follows:
This is a 2006 matter; I am refusing the application for adjournment at the instance of the prosecution as it does not appear to me that the prosecutors are serious to conclude this case. This matter was adjourned as far back as 4th July 2012 for continuation, the trial Court directed that all prosecution witnesses should be in Court today.
None of the prosecutors witness is in Court.
I am suo motu closing the prosecution case and adjourn this matter for the defendant to open their case.
Case adjourned to 21st day of November 2012…
The foregoing shows that the decision by the learned trial Judge even though taken with the best of intentions visited failure of justice on the Appellant. The failure of justice is in my view sufficient to vitiate the entire decision of the lower Court. In STATE Vs. GWONTO (1983) LPELR 3220 (SC) the Supreme Court, per NNAMANI, JSC held as follows:
What then is failure of justice in Buraimah Ajayis case, the Federal Supreme Court held that there is failure of justice if the proceedings at the trial fall short of the requirement not only that justice be done, but that it may be seen to be done. Hurley, C.J. (North) put the test thus: There is a failure of justice not only when the Court comes to the conclusion that the conviction was wrong but also when it is of opinion that the error or omission in the Court below may reasonably be considered to have brought about the conviction, and when on the whole facts and in the absence of the error or omission, the trial Court might fairly and reasonably have found the appellant not guilty Failure of justice is in my view very much the same thing as miscarriage of justice.
Issue number three is also resolved in favour of the Appellant against the Respondent.
Now having resolved all the three issues in favour of the Appellant against the Respondent, I must hold that Appellants appeal is meritorious and therefore deserves to be allowed, it is hereby allowed by me. The Judgment of the lower Court delivered by KASALI J, on the 22nd day of January 2014 in charge No; LCD/12/2006, convicting and sentencing the Appellant to 21 years imprisonment with hard labour is hereby set aside. The Appellant is hereby discharged and acquitted.
ABIMBOLA OSARUGUE OBASEKI- ADEJUMO, J.C.A.: I had a preview of the judgment just delivered by my learned brother, TIJJANI ABUBAKAR, JCA in this appeal. I agree with the reasoning and conclusion of my brother.
The appeal is meritorious and it is hereby allowed. I abide by all other consequential orders in the lead judgment.
JAMILU YAMMAMA TUKUR, J.C.A.: My learned brother TIJJANI ABUBAKAR JCA afforded me the opportunity of reading in draft before today the lead Judgment just delivered and I agree with the reasoning and conclusion contained therein. I adopt the Judgment as mine with nothing further to add.
Appearances:
O.B. Oregbemhe with him, U.J. Ekott and F.O. Owolawi For Appellant(s)
T.K. Shitta-Bay with him, Y.G. Oshoala, Adebayo Haroun and Jubril Kareem For Respondent(s)
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