JOSEPH UDOH JOHN v. THE STATE
(2015)LCN/8036(CA)
In The Court of Appeal of Nigeria
On Thursday, the 26th day of November, 2015
CA/C/493C/2014
RATIO
PRACTICE AND PROCEDURE: FINAL WRITTEN ADDRESS; THE RIGHT OF PARTIES TO ADDRESS COURT AT THE CONCLUSION OF THE TRIAL
The importance of final written addresses is not in doubt. Section 294(1) of the 1999 Constitution, as amended, provides that:
Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.
By virtue of these provisions, a trial court is obliged to give opportunity to parties in a cause or matter before it to deliver their respective final addresses before it delivers judgment. The Supreme Court, per Belgore, JSC (as he then was) held in Obodo v Olomu (supra), relied upon by the Appellant, that:
“The addresses, I hold, are not directed at the Court alone. The purport of the address by a party is to let the Court and his adversary know what his summing up is on the facts and the law as revealed by the evidence before the Court…Addresses form part of the case…” In his concurring opinion in the same case, Nnamani, JSC added: “Although a party is not obliged to address the court, the right to address is nevertheless there. In the normal course of things, the proceedings cannot be said to be complete until both parties have addressed the court.” There is therefore a constitutionally recognized right of parties to address court at the conclusion of the trial. And, judicially, this right has been enforced. It is settled that each party must be given an opportunity to address the court before judgment is delivered in the matter. See also: Sanusi v Gidiya (2006) LPELR-9808(CA); Union Bank of Nigeria Plc.V Nwanajao (2012) LPELR-7914(CA). These provisions have also been judicially interpreted to mean that if the court fails or neglects to afford the parties or any one of them the opportunity to present his final address, the failure or neglect would impact on the right to fair hearing. The proceedings would, for such failure or neglect, be deemed to have fallen short of the demands of fair hearing, and thereby a nullity; Obodo v Olomu (supra); Sanusi v Gidiya (supra); Akabogu v Akabogu (2003) 9 NW/LR (PT 826) 445. While the right to address the court is constitutionally guaranteed, and, the parties must each be presented with the opportunity to address the court, it is a right that is optional. It is a right that may be expressly or impliedly waived; Awua Amoagh v lliamzua Zaki (199s) 3 NWLR (PT 542), (1998) LPELR-5377(CA). Regarding the constitutional right of a party to address Court, this Court in Gitto Costruzioni Generali Nig Ltd v Etuk (2013) LPELR-20817(CA), per Garba, JCA held: “However, the provisions appear to confer a right on the parties to a case to make final addresses after the conclusion of the evidence in the case before the Court was required to deliver its decision in the case. Since it is a personal right and so a benefit conferred or vested in the parties, it can legally and effectively be waived by any or all of the parties to the case like all other personal, private and domestic right conferred by statutes. The parties cannot be forced to exercise the right to address a Court after the conclusion of evidence if they did not desire or are not willing to do so…” per. ONYEKACHI AJA OTISI, J.C.A.
PRACTICE AND PROCEDURE: WAIVER OF RIGHT: WHETHER A PERSON CAN WAIVE HIS RIGHT UNDER THE LAW
Courts have long recognised that where a law makes provisions in favour of a person, such person, can waive his right under the law, and the Court is not under any duty to inquire into the reason for the party’s decision to waive or decline to exercise his rights under the provisions. In Ariori v. Elemo (1983) LPELR-552(SC), the Supreme Court, per Eso, JSC held:
“The next enquiry is the extent to which a person could waive rights conferred upon him by law. When a right is conferred solely for the benefit of an individual there should be no problem as to the extent to which he could waive such right.
The right is for his benefit. He is sui juris. He is under no legal disability. He should be able to forgo the right or in other words waive it either completely or partially, depending on his free choice.” Where it is right conferred by the Constitution, as in the case of the right to address Court before judgment is delivered, I again find the decision of the Supreme Court in Ariori v. Elemo (supra), most instructive. In his concurring opinion, Irikefe, JSC succinctly put it this way: “It seems to me that one’s entitlement to a fair hearing under the
above cited provisions of the 1963 Constitution is not negotiable, and waiver thereof in any circumstance would be an infraction of the Constitution itself, capable of rendering the hearing invalid. There is thus, in my view, a distinction between a mandatory constitutional provision such as the one being considered here which cannot be waived and a mere procedural requirement in the course of a trial which can be waived.” (Emphasis mine)
See also: Ezomo v Oyakhire (1985) 2 S.C. 260, (1985) LPELR-1216 (SC); Shell Petroleum Development Co Nig. Ltd v Edamkue (2009) LPELR-3041 (SC). The most important factor for consideration is whether an opportunity to address the Court was indeed afforded the parties as constitutionally guaranteed. If the opportunity was afforded but the parties or either one of them, failed to take advantage of the opportunity provided for this purpose, there cannot be said to be lack of fair hearing. Rather, the party will be deemed to have waived his rights to address the Court; Ezomo v Oyakhire (supra); Lawan v State (2014) LPELR-23647(CA). per. ONYEKACHI AJA OTISI, J.C.A.
COURT: THE DUTY OF COURTS; THE DUTY OF THE COURT TO CREATE THE ATMOSPHERE OR ENVIRONMENT FOR A FAIR HEARING OF A CASE AND WHETHER IT IS THE DUTY OF THE COURT TO MAKE SURE THAT A PARTY TAKES ADVANTAGE OF THE ATMOSPHERE OR ENVIRONMENT
I do not see how a complaint of lack of fair hearing can successfully fly on this score. I am also guided by the decision of the Supreme Court in Newswatch Communications Ltd v Atta (2006) 4 S.C. (PT 11) 114, (2006) 12 NWLR (PT 993) 144 as follows..
“It is the duty of the court to create the atmosphere or environment for a fair hearing of a case but it is not the duty of the court to make sure that a party takes advantage of the atmosphere or environment by involving himself in the fair hearing of the case. A party who refuses or fails to take advantage of the fair hearing process created by the court cannot turn around to accuse the court of denying him fair hearing…A trial Judge can indulge a party in the judicial process for sometime but not for all times.” See also: The Nigerian Navy v Navy Captain D.O. Labinjo (2012) LPELR-7868(SC). per. ONYEKACHI AJA OTISI, J.C.A.
PRACTICE AND PROCEDURE: HEARING NOTICES; WHETHER HEARING NOTICES NEEDS TO BE SERVED ON A PARTY WHO IS AWARE OF AN ADJOURNED DATE
Judicial authorities have consistently held that hearing notices need not be served on a party who is aware of an adjourned date. As long as the party or his counsel is aware of the hearing date or of any pending action in the Court, it is the responsibility of the party and or his counsel to keep abreast of the progression of the case; S & D Construction Co Ltd v Ayoku (2011) LPELR-2965(SC); Ire -Olapade v Agbara Estates Ltd (2011) LPELR-4508 (CA). Neither the party nor his counsel can be heard to complain of lack of fair hearing when they fail to follow up with the advancement of the case. A curious question is this: Should the Respondent and the Court have continued to wait indefinitely for the Appellant to comply with the Court order to file written address? That way, there will be no closure to the case while the Appellant’s fate continues to hang in the balance. No party should be permitted to hold the Court or the adverse party to ransom; Nwankudu v Ibeto (2010) LPELR-4391(CA). per. ONYEKACHI AJA OTISI, J.C.A.
EVIDENCE: BURDEN AND STANDARD OF PROOF; THE REQUIREMENT OF PROOF BEYOND REASONABLE DOUBT TO SECURE CONVICTION FOR ANY CRIMINAL OFFENCE
It is also well settled that for the prosecution to successfully prove the offence of armed robbery, there must be proof beyond reasonable doubt. The phrase proof beyond reasonable doubt has been judicially construed as not meaning proof beyond a shadow of doubt. Rather, proof beyond reasonable doubt simply means that there is credible evidence upon which the Court can safely convict, even if it is upon the evidence of a single witness. In Afolalu v State (2010) 6-7 MJSC I87, the Supreme Court, per Mohammed JSC held that:
“The law is quite clear on the requirement of proof beyond reasonable doubt to secure conviction for any criminal offence by virtue of Section 138 (1) of the Evidence Act. Therefore if on the entire evidence adduced before a trial Court, that Court is left with no doubt that the offence was committed by the accused person, that burden of proof beyond reasonable doubt is discharged and the conviction of the accused person will be upheld even if it is on credible evidence of a single witness as happened in the case at hand. On the other hand, where on the totality of the evidence, a reasonable doubt is created, the prosecution would have failed in its duty to discharge the burden of proof which the law vests upon it thereby entitling the accused person the benefit of the doubt resulting in his discharge and acquittal. See Alonge v. Inspector-General of Police (1959) SCNLR. 576; Fatoyimbo v. Attorney-General of western Nigeria (1966) W.N.L.R. 4 and The State v. Danjuma (1997) 5 NWLR (Pt. 506) 512.” per. ONYEKACHI AJA OTISI, J.C.A.
EVIDENCE: CONFESSIONAL STATEMENT; THE REQUIREMENT FOR A CONFESSIONAL STATEMENT TO ATTRACT AND SUPPORT A CONVICTION AND THE IMPLICATION OF THE RETRACTION OF A CONFESSIONAL STATEMENT
The law is quite clear and settled on the point that for a confessional statement to attract and support a conviction, it must be proved to be free, voluntary, unambiguous, true, direct and positive to ground a conviction. A free and voluntary confession by a person if direct and positive, duly made and satisfactorily proved, has been described as occupying:
“…the highest place of authenticity when it comes to proving beyond reasonable doubt.”
See: Mustapha Mohammed vs. State (2007) II NWLR (pr 1045) 303; Dawa vs. State (1980) 8-11 sc 236; Osung vs. State (2012) 6-7 MJSC (PT 11) I; Galadima vs. State (2012) 12 MJSC (pt 111) 190; Fatai vs. State (2013) 2-3 MJSC (PT 1) 145. Where a confessional statement is retracted or its making denied, the trial Court is expected to admit it in evidence as an exhibit and in its judgment, decide whether or not such denial, avails the accused person; Kanu v. R. 14 WACA 30at J2; Dawa vs. The state (1990) 8-11 S.C 236 at 267-268; Mills vs. The State (1985) 3 NWLR (pt. 11) 190. But, where it is alleged that a confessional statement was not voluntarily made, the considerations are different. Where an accused person admits making a confessional statement, but contends or asserts that he did not make it voluntarily but under duress or some other alleged influence, then a trial within trial is conducted in order to determine whether the statement was voluntary or made by duress or otherwise. At the conclusion of the trial within trial, if the trial Judge is satisfied that the statement was voluntary, he then admits it as an exhibit in the evidence before the Court; Auta v. The State (1975) 4 S.C. 123: Gbadamosi & ors v. The State (1992) 9 NWLR (Pt.266) 465 at 480, (1992) 11-12 SCNJ 1268; Effiong v. The State (1998) 5 SCNJ.159 at 166: (1998) 8 NWLR (Pt.562) 362; Madjemu vs. State (2001) 4 MJSC 113. Therefore once an objection is raised on the involuntariness of an alleged confessional statement, the trial Court ought to conduct a trial within trial. The procedural step of ordering a trial within trial must be taken at the point when the objection is raised; Eke vs. State (supra); Okaroh vs. State (1990) 7 S.C. 169. per. ONYEKACHI AJA OTISI, J.C.A.
JUSTICES
IBRAHIM MOHAMMED MUSA SAULAWA Justice of The Court of Appeal of Nigeria
ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria
PAUL OBI ELECHI Justice of The Court of Appeal of Nigeria
Between
JOSEPH UDOH JOHN Appellant(s)
AND
THE STATE Respondent(s)
ONYEKACHI AJA OTISI, J.C.A.(Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Cross River State, sitting in the Akamkpa Judicial Division Coram M. O. Eneji, J. delivered on October 29,2012, wherein the learned trial Judge convicted and sentenced the Appellant and two others to life imprisonment for the offence of armed robbery.
The Appellant was charged with two others on a one count charge for the offence of armed robbery contrary to Section 1 (2) (a) and (b) of the Robbery and Firearms (Special Provision) Act Cap R.11 Laws of the Federation of Nigeria 2004. The Appellant was the 3rd Accused person. The particulars of offence stated that Michael Monday, Francis Dominic Clement and Joseph Udoh John, the Appellant, on the 17th day of March, 2006 at about 3.00 a.m. at Nyaji Village, Akamkpa in the Akamkpa Judicial Division whilst armed with offensive weapons did rob one Mr. Simon Agbor Simon of the sum of N150, 00.00.During trial, the Respondent called two witnesses, being the victim of the robbery incident and the Investigating Police Officer. The Appellant and the other two accused
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persons testified for themselves and called no other witnesses. In his defence, the Appellant denied any involvement in the armed robbery incident. He also denied making any statement to the Police. The trial was concluded on February 16, 2012. On that date, the learned trial Judge ordered parties to file and exchange their final addresses with each party given 10 days to file their address. None of the parties filed a written address. Seven months thereafter, the learned trial Judge on October 29, 2012, delivered a considered judgment in wherein he held inter alia that: “there is no rule of Court that stipulates that Counsel for the parties must address the Court before the Court can proceed to deliver her judgment”. The learned trial Judge proceeded to convict the Appellant and his co-accused for the offence they were charged and sentenced them to life imprisonment. Dissatisfied with the judgment, the Appellant invoked the appellate jurisdiction of this Court by a Notice of Appeal filed on 8/12/2014 upon orders of this Court granted on 4/12/2014, extending time for that purpose. The Notice of Appeal was filed on three grounds of appeal. The Appellant seeks an
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order of this Court setting aside the conviction and sentence of the Appellant to life imprisonment.
The Appellant and the Respondent exchanged Briefs of Argument, including a Reply Brief filed on 16/4/2015 but deemed on 4/11/20l5. On 4/11/2015, Julius O. Idiege, Esq. of Counsel for the Appellant adopted the Appellant’s Brief and Reply Brief. The Respondent’s Brief was also adopted on 4llll20l5 by B.U. Bassey, Esq., Director, Ministry of Justice, Akamkpa Zonal Office, Cross River State.
The Appellant had in his Brief formulated two Issues for determination as follows:
1. Whether the learned trial Judge was correct when he held that there is no rule of Court that stipulates that Counsel for the parties must address the Court before the Court can proceed to deliver her judgment.
2. Whether the judgment of the trial court was not against the weight of evidence placed before the court.
The Respondent adopted these issues; which shall now be considered.
Issue No1
Learned Counsel for the Appellant submitted that the final phase of any trial is the final address, which purpose is to enable parties bring forth the facts established
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by evidence adduced and apply the law to buttress those facts. The ultimate aim of the party addressing Court is to discredit the facts adduced by the other party, so that the Court would find in his favour. Reliance was placed on Anyaebosi v. R. T. Briscoe (1987) 2 NSCC Vol. 18, 805; Obodo v Olomu (1987) 2 NSCC 824 at 838. The provisions of Order 33 Rule 2 (ii) of the Cross River State High Court (Civil Procedure) Rules, 2008 was also relied upon to submit that the learned trial judge erred in holding that there was no rule of Court that parties must address Court before judgment is delivered.
It was argued that the Appellant had been denied fair hearing by not being given opportunity to sum up the facts and the law as revealed in his evidence and that of the Respondent by a final address to the Court. The matter had been adjourned on 16/2/2012 to 20/3/2012 for address. Judgment was delivered on 29/10/2012. The trial Judge in his judgment noted that there were numerous adjournments between 20/3/2012 and 29/10/2012 when judgment was finally delivered. But, the Appellant contended that there was no endorsement of any dates on which the trial Court sat
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between 20/3/2012 and 29/10/2012 and no indication was given to show that the parties were notified of such adjourned dates.
That when a Court adjourns a matter beyond a date the litigants had notice of the hearing, the Court has a duty to notify them of subsequent adjournments; relying on Omabuwa v Owhofatsho (2006) I NWLR (PT 972) 40 at 67. It was submitted that the Appellant not being aware of the subsequent adjourned dates from 20/3/2012 to 29/10/2012, was denied the opportunity of having his Counsel address the Court. It was posited that the learned trial Judge left his judicial functions of evaluating the evidence and address of parties and engaged in public function when he held that “I shall in considering this case, examine side by side the evidence adduced by the prosecution, the defence and their witnesses. ”
The Court was urged to declare the trial of the Appellant a nullity as his Counsel was not given the opportunity to address the trial Court.
For the Respondent, it was submitted that the issue for resolution is whether the trial Judge acted properly in giving judgment without the addresses of respective Counsel, after having
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ordered that addresses be filed without compliance for more than eight months. Learned Counsel for the Respondent argued that the learned trial Judge had so acted. It was submitted that while final addresses by Counsel are desirable, the addresses cannot take the place of facts, evidence and the law from which the trial Court is enjoined to draw inference in resolving cases submitted to the trial Court. It was argued that failure of the Appellant’s Counsel to file his written address will not invalidate the judgment of the trial Court. The trial Court had given enough time for the written address of the Appellant to be filed. The Appellant as defence Counsel ought to have filed his written address before the Respondent as prosecution files their own address. The Appellant failed to adhere to this procedure or to obey the order of the trial Court. It was contended that the Appellant is deemed to have abandoned filing his written address and cannot be heard to complain. It was further submitted that the comment made by the trial Judge was simply to state that addresses are not sacrosanct. The trial Court had been foisted with a state of inordinate delay,
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frustration and helplessness by the failure of the Appellant’s Counsel to file an address, despite the fact that the fate of the Appellant was hanging in the balance. In this circumstance, the trial Court could not have waited indefinitely. Learned Counsel for the Respondent submitted that the judgment of the learned trial Judge had all the qualities of a good judgment. The learned trial Judge had evaluated the evidence of all the witnesses and correctly applied the law.
On the issue of fair hearing, learned Counsel for the Respondent submitted that the where a party to a suit has been given reasonable opportunity to be heard in a manner prescribed by law and no reasonable explanation is given for the failure or neglect of the party, the party cannot be heard to complain of lack of fair hearing; relying on Magna Maritime Ltd v Oteju 22 NSCQR 296 at 301-302. It was further submitted that the Appellant needed no hearing notice as the Appellant’s Counsel who was even in Court to take the judgment, was aware of the progress of the matter in Court but failed to file his written address. The Court was finally urged to decline the prayer to set aside the
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judgment of the Court on ground of non-service of hearing notice.
In the Appellant’s Reply Brief, it is submitted, inter alia, that the hearing of address by Court established by the Constitution is part of the trial and is recognized by the Constitution. Failure of counsel to address the Court implies an incomplete trial and that it is sufficient to invalidate a decision arrived at; relying on UBA Plc v Ujor (2001) 10 N.W.L.R. (PT. 722) 589 at 608.
Order 30 of the Cross River State High Court (Civil Procedure) Rules, 2008 provides the order for filing of final written addresses by the parties to a matter. By these provisions, the defence commences his address at the conclusion of the defence. At the conclusion of the case for the defence in the instant case, the trial Court on 16/2/2012, following this procedure, ordered written addresses with the defence, the Appellant herein, to commence. The matter was then adjourned to 20/3/2012 for adoption of addresses; page 71 of the Record of Appeal. By 29/10/2012, more than seven months down the line, no address had been filed by the Appellant. No application had been filed even to extend time for this
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purpose. In other words, the order of the trial Court made on 16/2/2012 had simply been ignored. The learned trial Court noted in his judgment thus:
“Regrettably from the 20/3/2012 till date, neither the Defence who was given the opportunity to file their written address, nor the prosecution which was to file a reply address have done so. Since then, the case suffered numerous adjournments without counsel for the parties filing and exchanging their written addresses, as ordered by the Court on 16/2/2012.”
The learned trial Judge then went on to say:
“There is no rule of Court that stipulates that Counsel for the parties must address the Court before the Court can proceed to deliver her judgment. Also since the parties and their witnesses have all adduced evidence in support of their own side of this case, this Court can without further delay, proceed to judgment, based on the available evidence adduced by the parties and their witness. I shall therefore, proceed accordingly. ”
The importance of final written addresses is not in doubt. Section 294(1) of the 1999 Constitution, as amended, provides that:
Every Court established under
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this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.
By virtue of these provisions, a trial court is obliged to give opportunity to parties in a cause or matter before it to deliver their respective final addresses before it delivers judgment. The Supreme Court, per Belgore, JSC (as he then was) held in Obodo v Olomu (supra), relied upon by the Appellant, that:
“The addresses, I hold, are not directed at the Court alone. The purport of the address by a party is to let the Court and his adversary know what his summing up is on the facts and the law as revealed by the evidence before the Court…Addresses form part of the case…” In his concurring opinion in the same case, Nnamani, JSC added: “Although a party is not obliged to address the court, the right to address is nevertheless there. In the normal course of things, the proceedings cannot be said to be complete until both parties have addressed the court.”
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There is therefore a constitutionally recognized right of parties to address court at the conclusion of the trial. And, judicially, this right has been enforced. It is settled that each party must be given an opportunity to address the court before judgment is delivered in the matter. See also: Sanusi v Gidiya (2006) LPELR-9808(CA); Union Bank of Nigeria Plc.V Nwanajao (2012) LPELR-7914(CA). These provisions have also been judicially interpreted to mean that if the court fails or neglects to afford the parties or any one of them the opportunity to present his final address, the failure or neglect would impact on the right to fair hearing. The proceedings would, for such failure or neglect, be deemed to have fallen short of the demands of fair hearing, and thereby a nullity; Obodo v Olomu (supra); Sanusi v Gidiya (supra); Akabogu v Akabogu (2003) 9 NW/LR (PT 826) 445. While the right to address the court is constitutionally guaranteed, and, the parties must each be presented with the opportunity to address the court, it is a right that is optional. It is a right that may be expressly or impliedly waived; Awua Amoagh v lliamzua Zaki (199s) 3 NWLR (PT
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542), (1998) LPELR-5377(CA). Regarding the constitutional right of a party to address Court, this Court in Gitto Costruzioni Generali Nig Ltd v Etuk (2013) LPELR-20817(CA), per Garba, JCA held:
“However, the provisions appear to confer a right on the parties to a case to make final addresses after the conclusion of the evidence in the case before the Court was required to deliver its decision in the case. Since it is a personal right and so a benefit conferred or vested in the parties, it can legally and effectively be waived by any or all of the parties to the case like all other personal, private and domestic right conferred by statutes. The parties cannot be forced to exercise the right to address a Court after the conclusion of evidence if they did not desire or are not willing to do so…”
Courts have long recognised that where a law makes provisions in favour of a person, such person, can waive his right under the law, and the Court is not under any duty to inquire into the reason for the party’s decision to waive or decline to exercise his rights under the provisions. In Ariori v. Elemo (1983) LPELR-552(SC), the Supreme Court, per Eso, JSC
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held:
“The next enquiry is the extent to which a person could waive rights conferred upon him by law. When a right is conferred solely for the benefit of an individual there should be no problem as to the extent to which he could waive such right.
The right is for his benefit. He is sui juris. He is under no legal disability. He should be able to forgo the right or in other words waive it either completely or partially, depending on his free choice.”
Where it is right conferred by the Constitution, as in the case of the right to address Court before judgment is delivered, I again find the decision of the Supreme Court in Ariori v. Elemo (supra), most instructive. In his concurring opinion, Irikefe, JSC succinctly put it this way:
“It seems to me that one’s entitlement to a fair hearing under the
above cited provisions of the 1963 Constitution is not negotiable, and waiver thereof in any circumstance would be an infraction of the Constitution itself, capable of rendering the hearing invalid. There is thus, in my view, a distinction between a mandatory constitutional provision such as the one being considered here which cannot be waived
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and a mere procedural requirement in the course of a trial which can be waived.”
(Emphasis mine)
See also: Ezomo v Oyakhire (1985) 2 S.C. 260, (1985) LPELR-1216 (SC); Shell Petroleum Development Co Nig. Ltd v Edamkue (2009) LPELR-3041 (SC). The most important factor for consideration is whether an opportunity to address the Court was indeed afforded the parties as constitutionally guaranteed. If the opportunity was afforded but the parties or either one of them, failed to take advantage of the opportunity provided for this purpose, there cannot be said to be lack of fair hearing. Rather, the party will be deemed to have waived his rights to address the Court; Ezomo v Oyakhire (supra); Lawan v State (2014) LPELR-23647(CA). The Record of Appeal at page 71 manifestly indicates that the parties were given the opportunity to address the trial Court. The parties and their respective Counsel were in the Court on the date, 16/2/2002, when the order for written addresses to be filed was made by the learned trial Judge. They failed to take advantage of this opportunity. I do not see how a complaint of lack of fair hearing can successfully fly on
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this score. I am also guided by the decision of the Supreme Court in Newswatch Communications Ltd v Atta (2006) 4 S.C. (PT 11) 114, (2006) 12 NWLR (PT 993) 144 as follows..
“It is the duty of the court to create the atmosphere or environment for a fair hearing of a case but it is not the duty of the court to make sure that a party takes advantage of the atmosphere or environment by involving himself in the fair hearing of the case. A party who refuses or fails to take advantage of the fair hearing process created by the court cannot turn around to accuse the court of denying him fair hearing…A trial Judge can indulge a party in the judicial process for sometime but not for all times.”
See also: The Nigerian Navy v Navy Captain D.O. Labinjo (2012) LPELR-7868(SC). It was contended for the Appellant that no hearing notice was issued on them for any adjourned dates between 16/2/2002 and 29/10/2002 when judgment was finally delivered. The Record of Appeal at page 71 indicates the appearance of one Richard Asuquo, Esq. as having appeared on 1 61212012 for the accused persons, including the Appellant.
He was therefore in court when the order for
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written addresses was given and the matter adjourned 20/3/2012 for adoption of to the addresses and for a date for judgment. It is also important to note that the Appellant’s Counsel was in Court when judgment was delivered on 29/10/2012. The Appellant was therefore well aware of the adjourned date and the duty thrust on him by the order of the trial Court. But, the Appellant and Counsel failed to comply with the order of the trial Court. Thus, by 20/3/2012, no addresses were adopted as none had been filed.
Judicial authorities have consistently held that hearing notices need not be served on a party who is aware of an adjourned date. As long as the party or his counsel is aware of the hearing date or of any pending action in the Court, it is the responsibility of the party and or his counsel to keep abreast of the progression of the case; S & D Construction Co Ltd v Ayoku (2011) LPELR-2965(SC); Ire -Olapade v Agbara Estates Ltd (2011) LPELR-4508 (CA). Neither the party nor his counsel can be heard to complain of lack of fair hearing when they fail to follow up with the advancement of the case. A curious question is this: Should the Respondent and the
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Court have continued to wait indefinitely for the Appellant to comply with the Court order to file written address? That way, there will be no closure to the case while the Appellant’s fate continues to hang in the balance. No party should be permitted to hold the Court or the adverse party to ransom; Nwankudu v Ibeto (2010) LPELR-4391(CA).
In the circumstance of this case, the learned trial Judge was right when he held that
“There is no rule of Court that stipulates that Counsel for the parties must address the Court before the Court can proceed to deliver her judgment. Also since the parties and their witnesses have all adduced evidence in support of their own side of this case, this Court can without further delay, proceed to judgment, based on the available evidence adduced by the parties and their witness. I shall therefore, proceed accordingly. ”
The Appellant had a constitutional right to address Court. He was given adequate opportunity of over seven months to so address Court but failed to do so. The requirement for fair hearing had been served. The Appellant in this circumstance is deemed to have impliedly waived his right to address
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the Court. There is no law that stipulates that the Court cannot go ahead to deliver judgment on the matter, taking account of the facts of the case, the evidence adduced and the law to be applied.
The decision of the learned trial Judge delivered sans the benefit of written addresses from the parties cannot be faulted on this score. Issue No I is therefore resolved against the Appellant.
Issue No 2
Under this issue the Court is called upon to consider whether in the circumstances of the evidence adduced by the prosecution, the learned trial Judge was right to convict the Appellant for the offence of armed robbery.
It is settled that in order to establish the offence of armed robbery, the prosecution must prove the following:
1. That there was a robbery or series of robberies.
2. That the robbery or each robbery was an armed robbery.
3. That the accused was the robber or one of those who took part in the armed robbery; Bolanle vs. State (2005) II NLR (PT 936); Attah v State (2010) CLR 3 (t) (sc) 3 (PT IV) MJSC 139; Afolabi v State (2013) 6-7 MJSC (PT 1) 1.
The pieces of evidence which need to be before the Court to establish the
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offence of armed robbery can be grouped into three:
1. By direct evidence of an eye witness;
2. By circumstantial evidence; and
3. By a confessional statement; Onyenye vs. State (2012) LPELR 7866 (SC).
It is also well settled that for the prosecution to successfully prove the offence of armed robbery, there must be proof beyond reasonable doubt.
The phrase proof beyond reasonable doubt has been judicially construed as not meaning proof beyond a shadow of doubt. Rather, proof beyond reasonable doubt simply means that there is credible evidence upon which the Court can safely convict, even if it is upon the evidence of a single witness. In Afolalu v State (2010) 6-7 MJSC I87, the Supreme Court, per Mohammed JSC held that:
“The law is quite clear on the requirement of proof beyond reasonable doubt to secure conviction for any criminal offence by virtue of Section 138 (1) of the Evidence Act. Therefore if on the entire evidence adduced before a trial Court, that Court is left with no doubt that the offence was committed by the accused person, that burden of proof beyond reasonable doubt is discharged and the conviction of the accused
19
person will be upheld even if it is on credible evidence of a single witness as happened in the case at hand. On the other hand, where on the totality of the evidence, a reasonable doubt is created, the prosecution would have failed in its duty to discharge the burden of proof which the law vests upon it thereby entitling the accused person the benefit of the doubt resulting in his discharge and acquittal. See Alonge v. Inspector-General of Police (1959) SCNLR. 576; Fatoyimbo v. Attorney-General of western Nigeria (1966) W.N.L.R. 4 and The State v. Danjuma (1997) 5 NWLR (Pt. 506) 512.”
The evidence adduced before the trial Court will establish whether or not the offence of armed robbery was proved.
The evidence of PW1, who was the victim, was that there was a robbery incident on 17/3/2006 in which he and family were attacked. His evidence in chief is found at pages 33 – 34 of the Record of Appeal. They were attacked by five men, two of whom were armed with locally made pistols and machete. PW1 had testified that he and family were locked up in a room after he had directed the robbers to where they could find his money, being the sum of N150,000.00
20
(One Hundred and Fifty thousand Naira). The robbers collected the money and left, with PW1 and family still locked up in the room. His testimony was not contradicted. There was therefore a robbery and it was armed robbery.
The next consideration is whether the Appellant was one of the robbers. PW1 testified that he managed to break open the room and went to lodge a report at the army check point at Nyaji village. The soldiers on duty immediately commenced combing the area in search of the robbers. In the process, the Appellant was arrested. The Appellant named the 1st accused as the person who was arrested in the forest by the soldiers. The 2nd accused person on record was later arrested by the soldiers. The soldiers handed over the Appellant and other co-accused over to the police. An interim report (Exhibit N) was also handed over to the police. PW2, the IPO, further said the soldiers handed over to him a five litre jerry can which was recovered from the Appellant and the 1st accused when they were apprehended in the forest. Locally made pistols and cartridge were concealed inside the jerry can.
Learned Counsel for the Appellant submitted the
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trial Court failed to consider the defences of the Appellant as given in evidence and unshaken during cross examination. That the trial Judge rather relied on an alleged confessional extra-judicial statement of the Appellant, Exhibit M, which the Appellant denied making, to convict him. It was further submitted that the trial Court did not consider the import of the evidence of PW2 regarding the said Exhibit M before relying on it. It was contended that the failure of the trial Court to conduct a trial within trial rendered the statement, Exhibit M, inadmissible; relying on Emeka v State (2001) FWLR (PT 66) 682 at 691. The learned trial Judge on record interviewed the Appellant and ruled thereafter admitting the statement. But, learned Counsel submitted that the procedure adopted by the trial Judge was not a trial within trial. The statement ought not to have been relied upon. The extra judicial statement of the victim, PW1, found at page 4 of the Record of Appeal, did not mention the Appellant as one of those who robbed him. The Court was urged find and hold that the prosecution did not lead credible evidence to establish the elements of armed robbery against
22
the Appellant; and thereby discharge and acquit him.
For the Respondent, it was submitted that the learned trial Judge had considered the evidence adduced before convicting the Appellant. On Exhibit M, the Appellant had merely denied it. In such circumstances, the Court is enjoined to admit the statement and determine what weight to attach thereon. It was submitted that the fact that PW2 failed to comply with the Judges’ Rules by taking the statement before a superior officer or counter signing the statement did not diminish the relevance or weight to be attached to the statement. It was submitted that even if the statement was alleged not to be voluntary, the trial Judge had conducted a trial within trial.
In Appellant’s Reply Brief, it was submitted, inter alia, that the ‘interview’ conducted by the trial Judge did not conform to the requirements of a trial within trial, relying on Adebowale v The State (2013) 16 N.W.L.R. (PT. 1379) 104 at 126 – 127; Osuagwu v State (2013) 5 NWLR (Pt. 1347) 360; Eke v The State (2011) 3 N.W.L.R. (PT. 1235) 589 at 609.
At the trial, when PW2 sought to tender a statement made by the Appellant, which PW2 said he
23
had recorded, the Appellant denied making the statement. The statement was admitted as Exhibit M. Under cross examination, PW2 said he could not remember whether he took the Appellant to a superior officer to obtain his confessional statement. He also said that he did not counter sign the statement. The statement was not interpreted to the Appellant because PW2 said that the Appellant and other accused persons did not require an interpreter as they spoke English.
The evidence of the Appellant as DW3 was that he was a snail trader and had gone to buy snails from Ekang market, and being conveyed by a commercial cyclist. He said that on their way they were stopped by soldiers who searched him and found N5, 000.00 in his pocket. The soldiers interrogated him and in spite of his answers, they were arrested and handed over to policemen at a sub police station at Ekang. The learned trial Judge relied on the confessional statement, Exhibit M, to convict the Appellant.
The law is quite clear and settled on the point that for a confessional statement to attract and support a conviction, it must be proved to be free, voluntary, unambiguous, true, direct and
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positive to ground a conviction. A free and voluntary confession by a person if direct and positive, duly made and satisfactorily proved, has been described as occupying:
“…the highest place of authenticity when it comes to proving beyond reasonable doubt.”
See: Mustapha Mohammed vs. State (2007) II NWLR (pr 1045) 303; Dawa vs. State (1980) 8-11 sc 236; Osung vs. State (2012) 6-7 MJSC (PT 11) I; Galadima vs. State (2012) 12 MJSC (pt 111) 190; Fatai vs. State (2013) 2-3 MJSC (PT 1) 145.
Where a confessional statement is retracted or its making denied, the trial Court is expected to admit it in evidence as an exhibit and in its judgment, decide whether or not such denial, avails the accused person; Kanu v. R. 14 WACA 30at J2; Dawa vs. The state (1990) 8-11 S.C 236 at 267-268; Mills vs. The State (1985) 3 NWLR (pt. 11) 190. But, where it is alleged that a confessional statement was not voluntarily made, the considerations are different.
Where an accused person admits making a confessional statement, but contends or asserts that he did not make it voluntarily but under duress or some other alleged influence, then a trial within trial is
25
conducted in order to determine whether the statement was voluntary or made by duress or otherwise. At the conclusion of the trial within trial, if the trial Judge is satisfied that the statement was voluntary, he then admits it as an exhibit in the evidence before the Court; Auta v. The State (1975) 4 S.C. 123: Gbadamosi & ors v. The State (1992) 9 NWLR (Pt.266) 465 at 480, (1992) 11-12 SCNJ 1268; Effiong v. The State (1998) 5 SCNJ.159 at 166: (1998) 8 NWLR (Pt.562) 362; Madjemu vs. State (2001) 4 MJSC 113. Therefore once an objection is raised on the involuntariness of an alleged confessional statement, the trial Court ought to conduct a trial within trial. The procedural step of ordering a trial within trial must be taken at the point when the objection is raised; Eke vs. State (supra); Okaroh vs. State (1990) 7 S.C. 169.
When PW2 sought to tender the confessional statement of the Appellant, the proceedings, as transcribed at pages 51-52 of the Record of Appeal, went as follows:
‘I also recorded statement -from the 3rd accused. This is the statement. Tenders it as Exhibit.
OBJECTION
The 3rd accused say (sic) it is not his
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statement.
RULING
After interviewing the 3rd accused, I observe that the 3rd accused is only denying his statement. For he has confessed before the Court that his parents are dead and that he has never attended school in his life.
These two statements are the very first part of his statement to the Police. Objection is overruled.
ORDER
Statement of 3rd accused to the police – Ex “M”‘
Regarding his statement, the Appellant as DW3 said, at page 68 of the Record of Appeal:
“They handed me over to the police there. Then as they left, one inspector brought me out of the cell and took statement from me. After three days, the soldiers came again. They said that they want to take me to the army barracks. The police released me to them. They handed over my statement to one other army man. The army man checked the statement and threw the paper back at the police man. He asked him whether the was the one to collect statement from someone that the army had arrested”
DW3 proceeded to describe how he was tortured by the army in the Army Barracks, Calabar and made to sign a paper, the contents of which he did not read. He also stated that
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he saw the IPO, PW2, at the State CID but did not say whether he made any statement there. DW3 continued as follows:
“I only made statement at the Police station at Ekang, But the army man refused to collect the said statement. The army men gave me a paper to sign. I signed it. But they did not read the statement to me before I signed it.”
The evidence of DW3 does not have the ring of truth. In the first place, the point must be made that DW3 admitted that he made a statement to the police and he never alleged that he was forced or compelled to make that statement to the police. The statement he alleged the army forced him to make under duress was not tendered. PW2, the IPO, said he took down the statement made by the Appellant. The evidence of the appellant (DW3) was not that he was compelled under duress to make the statement to the police. He admitted he made the statement. The attempt to allege that he made an earlier statement at Ekang Police station is not borne out by evidence. Neither the Army interim report (Exhibit N) nor PW2 testified that the Appellant and other accused persons were at all taken to Ekang Police Station. The statement
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admitted is the statement DW3 made to the police His subsequent denial or retraction did not compel the conduct of a trial within trial. The trial Court rightly admitted the denied or retracted confessional statement in evidence as an exhibit. The duty of the trial Judge would then be to decide in judgment whether or not such denial avails the accused person; Kanu v. R. (supra); Dawa vs. The State (supra); Mills vs. The State (supra).
There is a recommended requirement that the confessional statement admitted should, conform to the Judges’ Rules, which are conventional rules of caution to guide the Judge in determining the weight to be attached to any confessional statement. One of the requirements of the Judges’ Rules is that the confessional statement should be read over and confirmed in front of a superior police officer for the purpose of attestation or confirmation of the statement. This is not a rule of law. Failure to observe this practice, though commendable, would not, ipso facto, render the statement inadmissible, as long as the statement was made voluntarily; Eyop v State (2012) LPELR-20210 (CA);
Under cross examination, PW2 said that he
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wrote down the statements of the accused persons, including the Appellant. He said:
“The accused persons speak English so they did not need an interpreter.”
The learned trial Judge in his Ruling admitting the statement of the Appellant, at page 51 of the Record of Appeal noted that the Appellant confessed before the Court that his parents are dead and that he has never attended school in his life. However, transcribed at page 68 of the Record of Appeal is as follows:
‘The 3rd Accused (DW3) is S/b states in English in Chief thus:’
In other words, the Appellant testified in chief in English language. This simply corroborates the evidence of PW2 that the Appellant was literate. There was therefore no need for an interpreter to interpret to him the statement that he made at the police station which PW2 wrote down in English language.
In his said statement, Exhibit M, DW3 stated inter alia:
“We arrived Nyaje village around 10pm in the night and went straight to the near-by bush near secondary school and hide ourselves. At about 3am being Friday I7/3/06 Michael Monday Udoh took straight to Masters House and there Francis Dominic Clement
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brought out a touch light and handed over to me with instruction that I should always alert them whenever I see anybody coming. Michael and Wong were at the backyard, while Francis and Emmanuel removed some window blades and entered the room and after our operation I asked my brother Francis whether they have collected better money from the man”.
It is always desirable to have outside the Appellant’s confession to the police some evidence however slight, of the circumstances which made it probable that the confession is true; Emeka vs. State (supra); Alepan vs. State (2008) 4-5 S. C. (PT. II) 1; Galadima vs. State (supra). Such further or additional evidence are applied to determine the weight to be attached to the confessional statement. Certain tests to be applied and or followed in determining the issue of weight to be attached to confessional statements were laid down in R v Sykes (1913) 18 Cr. APP. R. 233 and approved in Kanu v R (supra). By these tests, the judge must ask himself these questions:
1. Is there anything outside the confession to show that it is true?
2. Is it corroborated?
3. Are the relevant statements made in it of
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facts, true as far as that can be tested?
4. Was the prisoner one who had the opportunity of committing the offence?
5. Is his confession possible?
6. Is the confession consistent with other facts which have been ascertained and have been
proved?
The trial judge ought to be satisfied with the answers to these questions and requirements, whether or not the confessional statement is retracted or there is no challenge to its admissibility; Mbang vs. State (2012) 6-7 MJSC (PT IV) 119 at 148; Osetola vs. State (supra); Barmo v State (2000) 1 NWLR (PT 641) 425. If the confessional statement passes these test questions satisfactorily, a conviction founded on it is invariably upheld, unless there are other grounds of objection. If the confessional statement fails to pass the tests, no conviction can properly be founded on it; Edet Obosi v The State (1965) NMLR 129; Jimoh Yusufu v The State (1976) 6 S C 167; Eghoghonome v State (1993) 7 NWLR (PT 306) 383; Lasisi vs. State (2013) 2-3 MJSC (PT 11) 172 at 148.
PW1 was attacked and robbed at Nyaje in Akamkpa Local Government Area. Exhibit N is the interim report by the army to the police on
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this incident. The Appellant is named as the 3rd suspect arrested by the soldiers deployed at Nyaje, the locus criminis. PW1 in his evidence in chief testified that immediately after his report to the soldiers at the rmy Checkpoint in Nyaje, the soldiers commenced a search and arrested the Appellant. He testified at page 33 of the Record of Appeal:
“The 3rd accused was the first to be arrested. The 3rd accused upon being arrested, cried and confessed that it was one Mike who brought him into the operation.”
The extra judicial statement of PWI was not tendered in evidence.
It is quite pedestrian that facts or statements which are not submitted before the trial Court in evidence cannot be considered by the trial Court in its consideration of the guilt or otherwise of the accused person; Ozaki vs. State (1990) I NWLR (Part 124) 92.”It is a well settled principle of the administration of justice in our Courts that only evidence properly authenticated, either by the oral testimony of a party or the written statement tendered and admitted during proceedings can be evidence in a trial. Extra judicial statements which remain in that category however credible
33
they may appear cannot be used as evidence in a trial.”The State vs. Ogbubunjo (2001) 1 S.C. (PT 1) 90, (2001) 2 MJSC l45. Statements contained in proof of evidence, which are not tendered in Court, do not constitute legal evidence; Esangbedo vs. The State (1959) LPELR-1163 (SC), (1989) NWLR (PT 113) 57.
This Court cannot therefore look into Appellant’s extra judicial statement to the police found at page 4 of the Record of Appeal, which was not tendered in evidence at the trial, as we have been urged by Learned Counsel for Appellant. The unchallenged evidence of PW1 identifying the Appellant as one of the persons who robbed him; as well as the report from the Army, Exhibit N, both of which unequivocally place the Appellant at the locus criminis cannot be ignored.
The Court has been urged to consider the alibi raised by the Appellant in his evidence. In my firm view, the feeble attempt by the Appellant as DW3 to raise an alibi by claiming that he was on his way to buy snails at Ekang market when he was arrested at a village called Nde Bachor, is really an afterthought in the circumstance of this case.
It is correct to submit that an accused person may
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raise some doubt as to his guilt by raising an alibi, saying that he was somewhere else at the time the crime was alleged to have been committed. Since where he was at the material time is a matter especially within his knowledge, the law requires that for his defence of alibi to succeed in raising the doubt in his favour he ought to do certain things. First, he ought to raise that defence at the earliest possible opportunity. And, in that defence, he ought to give such details and particulars of his whereabouts that the police can investigate. This is the evidential burden on him in his defence of alibi. Once an accused person raises his defence of alibi at the earliest opportunity and gives the requisite particulars of his whereabouts in respect of the defence of alibi, it is the duty of the police to investigate its truth; Esangbedo vs. The State (supra); Obakpolor v State (1991) I NWLR (165) 113; Abudu v The State (1985) 7 N.W.L.R. (Pt.1) 55; Almu v State (supra).
But, in the instant case, there was no whiff of an alibi given when the Appellant was arrested until his evidence before the trial Court. His evidence regarding an alibi was really an
35
afterthought and cannot be considered by the Court, as the Appellant’s Counsel had urged. The Appellant cannot be considered to have provided an alibi within the meaning of the law. I would therefore resolve Issue No 2 against the Appellant.
In all, I find no merit in this appeal. The appeal thus fails and is hereby dismissed. Accordingly, the conviction and sentence of the Appellant by the High Court of Cross River State, sitting in the Akamkpa Judicial Division coram M. O. Eneji, J., delivered on October 29,2012, is hereby affirmed.
IBRAHIM MUSA MOHAMMED SAULAWA J.C.A.: My learned brother, the Hon. Justice O. A. Otisi, JCA, has graciously obliged me with the draft of the judgment just delivered.
Having read, before now, the briefs of argument of the respective learned counsel vis-a-vis the records of appeal, I have no hesitation in concurring with the reasoning and conclusion reached in the said judgment, to the effect that the instant appeal lacks merits. I adopt both reasoning and conclusion in question as mine, and accordingly join my learned brother in dismissing the appeal.
Consequently, the judgment of
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the High Court of Cross River State, delivered at Akamkpa Judicial Division by M. O. Eneji, J., on October 29,2012, is hereby equally affirmed by me.
PAUL OBI ELECHI J.C.A.: I have had the privilege of having read in advance the judgment just delivered by my learned brother, Onyekachi Aja Otisi, JCA. I agree with him reasoning and conclusion in the matter which I respectably adopt as mine also. I also join him in dismissing the appeal as lacking in merit.
Appeal dismissed.
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Appearances:
Julius O. Idiege, Esq.For Appellant(s)
Bassey U. Bassey, Esq.,
Director, Ministry of Justice,
Akamkpa Zona,l Oflice,
Akamkpa, Cross River StateFor Respondent(s)
Appearances
Julius O. Idiege, Esq.For Appellant
AND
Bassey U. Bassey, Esq.,
Director, Ministry of Justice,
Akamkpa Zona,l Oflice,
Akamkpa, Cross River StateFor Respondent
