MATTHEW NWOKOCHA V. ATTORNEY – GENERAL, IMO STATE
(2012)LCN/5387(CA)
In The Court of Appeal of Nigeria
On Friday, the 18th day of May, 2012
CA/PH/417C/2007
RATIO
FAIR HEARING: WHETHER A PARTY WHO DELIBERATELY SPURNS AN OPPORTUNITY TO PRESENT HIS CASE CAN SUBSEQUENTLY COMPLAIN OF BREACH OF FAIR HEARING
It is now settled that a party who deliberately spurns an opportunity to present his case like the Appellant in this case cannot turn round to make a complaint that he was denied fair hearing. PER MOJEED ADEKUNLE OWOADE, J.C.A
FAIR HEARING: RULE PERTAINING TO FAIR HEARING
The rule pertaining to fair hearing simply means that parties must be given the opportunity to present their case. It is not the rule that no matter the circumstance, the court must sit on its hands, wait at all costs and at all times for a party to present his case. If this is the rule, then cases will never be determined. Therefore, at some point, as it happened in the instant case, the court must put its foot down.
Again, where as in the instant, case, a party to a suit has been evidently accorded every reasonable opportunity of being heard, and for no just cause whatsoever refuses to enter his defence or refuses or neglects to attend the sittings of the court, he is deemed to have voluntarily abandoned his case or defence and cannot thus complain of breach or denial of fair hearing.
See Mirchandani v. Pinheiro (2001) 3 NWLR (pt. 701) 557, Okiki v. L.P.D.C. (2006) 1 NWLR (Pt. 960) 67, Folbod Investment Ltd. V. Alpha Merchant Bank Ltd. (1996) 10 NWLR (PT. 478) 344, S & D Const. Co. Ltd. V. Ayoku (2003) 5 NWLR (pt. 813) 278, Abubakar v. INEC (2004) 1 NWLR (Pt. 854) 207, Scott Emuakpor v. Ukaube (1979) 1 SC 6, Oyeyipo v. Oyinloye (1987) 1 NWLR (pt. 50) 356 Omo v. JSC (2000) 12 NWLR (Pt. 682) 444; Usani v. Duke (2006) 17 NWLR (Pt. 1009) 610, A.N.P.P. v. REC Akwa Ibom State (2008) 8 NWLR (Pt. 1090) 453.
In a fairly related civil case, where the appellants reacted negatively to an early adjournment given by the court, failed to attend court sittings and turned around that their right to fair hearing was breached; Saulawa JCA in his supporting judgment remarked as follows:
“it is rather obvious, as strenuously highlighted above, that the appellants were the very architects of their own predicament. They deliberately, and rather stubbornly, stayed away from the proceedings of the court despite the fact that they were duly served with the necessary hearing notices to so appear in court. Having voluntarily abstained from the court sittings in question, the Appellants cannot now be heard complaining that they had been denied fair hearing.”
See, Joel Etipetip Ukwuyok & 6 ors v. H.R.H. Festus Silas Ogbulu (The Okkan – Ama of Ibotirem Town) & 4 Ors (2010) 5 NWLR (pt. 1187) 316 at 346.
Before then, but on a similar note, Jega JCA held in the case of Okike v. L.P.D.C. (2006) 1 NWLR (Pt. 960) 67 at 98 as follows:
“From the facts of this case and the available evidence as contained in the record of proceedings before the court, the Appellant has been served with notice of all the sittings of the 1st respondent tribunal and he deliberately refused to attend the sittings of the tribunal which he is duly aware of. If the appellant is interested in knowing the outcome of the proceedings of the 1st respondent tribunal he should have been present at its proceedings. So he cannot now turn round and claim that he has been denied his right of fair hearing as provided by Section 36 (1) of the 1999 Constitution of the Federal Republic of Nigeria.”
The attitude of the appellant in the instant case reminds one of the comments of Niki Tobi JSC in the case of Adebayo v. Attorney General of Ogun State (2009) 7 NWLR (pt. 1095) 201 at 205 to 206, as to the growing tendency to abuse the fair hearing provisions. He had this to say:
“Learned counsel for the appellant roped in the fair hearing principle. I have seen in recent times that parties who have bad cases embrace and make use of the constitutional provision for fair hearing to bamboozle the adverse party and the Court, with a view to moving the court away from the live issues in litigation. They make so much weather and sing the familiar song that the constitutional provision is violated or contravened. They do not stop there, they rake the defence in most inappropriate cases because they have nothing to canvass in their favour in the case. The fair hearing provision in the Constitution is the machinery or locomotive of justice, not a spare part to propel or invigorate the case of the user. It is not a casual principle of law available to a party to be picked up at will in a case and force the court to apply it to his advantage. On the contrary, it is a formidable and fundamental provision available to a party who is really denied fair hearing because he was not heard or that he was not properly heard in the case. Let litigants who have nothing useful to advocate in favour of their cases leave the fair hearing constitutional provision alone because it is not available to them just for the asking.” PER MOJEED ADEKUNLE OWOADE, J.C.A
EVIDENCE: WHETHER THE LAW IMPOSES THE PROSECUTION THE DUTY OF BOTH THE PROSECUTION AND THE DEFENCE
The law does not impose on the prosecution, the duty or function of both the prosecution and the defence.
Nkebisi v. State (2010) 5 NWLR (Pt. 1188) 471, Okpulor v. The State (1990) 7 NWLR (Pt. 164) 581 at 589 – 593 PER MOJEED ADEKUNLE OWOADE, J.C.A
EVIDENCE: WHETHER A COURT CAN ACT ON THE EVIDENCE OF A SINGLE WITNESS
This is because, a court can and is entitled to act on the evidence of one single witness if the witness is believed, given all the circumstances of the case. A single credible witness can establish a case beyond reasonable doubt except where the law requires corroboration.
See the cases of Igbo v. The State (1975) 9-11 SC, 129-136, Onafowokan v. The State (1987) 3 NWLR (Pt.61) 538 at 552, (1987) 7 SCNJ 233, Ogoala v. The State (1991) 2 NWLR (Pt. 175) 509 at 533 (1991) 3 SCNJ 61, Ugwumba v. The State (1993) 5 NWLR (Pt. 296) 660 at 674, (1993)6 SCNJ 217, Effiong v. The State (1998) 8 NWLR (Pt. 562)362, (1998) 5 SCNJ 158. PER MOJEED ADEKUNLE OWOADE, J.C.A
CRIMINAL LAW: WHETHER THE ACCUSED’S RIGHT TO REMAIN SILENT DEROGATES THE PROSECUTION’S DUTY TO PROVE HIS CASE
In the case of Sylvester Utteh v. The State (supra) at 257 and 274 the Supreme Court held that an accused person is under the constitution entitled to remain silent either during investigation or in court. Where an accused exercises this right the prosecution still is bound as the party on which the onus lies to prove its case beyond reasonable doubt. But if at the trial the prosecution calls credible evidence which in the end remains unrebutted the court is entitled to accept it.
Clearly, therefore, an accused person has the constitutional right to remain silent and leave the trial to the prosecution to prove the charge against him. This is because the citizen’s right to remain silent even when arraigned for a serious offence is an inviolable one. The prosecution is bound to prove its case beyond reasonable doubt but accused runs a risk in remaining silent. As he is obliged to make his defence to the charge if his remaining silent will result in his being convicted on the case against him by the prosecution.
See, Igabele v. State (2006) 6 NWLR (Pt. 975) 100, Okoro v. State (1988) 5 NWLR (Pt. 94) 255, CPL. Isah Ahmed v. The Nigeria Army (2011) 1 NWLR (Pt.1227) 89 at 118. PER MOJEED ADEKUNLE OWOADE, J.C.A
JUSTICES
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria
HARUNA M. TSAMMANI Justice of The Court of Appeal of Nigeria
Between
MATTHEW NWOKOCHA Appellant(s)
AND
ATTORNEY – GENERAL, IMO STATE Respondent(s)
MOJEED ADEKUNLE OWOADE, J.C.A (Delivering the Leading Judgment): This is an appeal against the judgment of A.O.H. Ukachukwu J. of the High Court of Imo State sitting at the Owerri Judicial Division in charge No. HOW/ART/11/99 delivered on 28th September, 2006.
The Appellant was jointly charged alongside one David Amadi and Ikechi Ukanacho with the offence of armed robbery contrary to Section 1(2) (b) of the Robbery and Firearms (special provisions) Act Cap. 398 Vol. XXII laws of the Federation of Nigeria 1990 as applicable in Imo State. He was the 3rd accused person in the said charge.
The accused persons pleaded not guilty to the charge. The prosecution called a total of three (3) witnesses. The Appellant refused to testify and did not call any witness.
The case of the prosecution was that on 3/5/1998 around 2am armed robbers invaded the house of PW1 one Mr. Vitalis Abareke, at Umuebe in Akabor. PW1 who was sleeping at that time was awoke by the barking of his dogs. He drew near the window and saw people dressed in black shirts and trousers. The robbers tried to force the door open and he was shouting “thieves, thieves”.
When the robbers eventually gained entrance into his house they robbed him of various sums of money totaling N90, 000.00 (ninety thousand naira) and a trident radio worth N7, 400.00 (seven thousand four hundred naira).
In the course of the robbery he saw and recognized the robbers as David Amadi the 1st accused, Ikechukwu Ukanacho the 2nd accused, Matthew Nwokocha the 3rd accused/Appellant and one Kingsley Amadi still at large. During the robbery, the 3rd accused/Appellant, Matthew Nwokocha instructed the others to beat PW1 to death or he will retaliate. To drive home his point, the 3rd accused/Appellant Matthew Nwokocha picked up an empty bottle on PW1’s dining table and broke same on PW1’s head and used the sharp edge to stab PW1 on the head. He recognized the robbers by the aid of moon light through his window glass he opened a little having drawn the curtain earlier. The robbers were people from his community and he knew them prior to the incident.
In the morning he reported the incident to the Police at Iho. He made a statement to Iho Police and mentioned the names of the accused persons, the Appellant inclusive and Kingsley Amadi still at large as the people that robbed him.
The matter was subsequently transferred to the State CID Owerri where he also made a statement on 11/5/98 and mentioned the names of the accused persons again.
The 1st and 2nd accused persons were first arrested and arraigned while the search for the Appellant and other fleeing accused person continued.
Eventually, the Appellant, Matthew Nwokocha was arrested at Port Harcourt and brought back to the State SID Owerri where he volunteered his statements. In his 1st statement the Appellant mentioned the 1st and 2nd accused persons as his co-accused persons. His 2nd statement led to the recovery of a Yamaha RK 125 motorcycle which he had earlier stolen. The statements were admitted as Exhibits ‘D’ and ‘E’ respectively.
At the close of the case for the 2nd accused person, Ikechi Ukanacho, the court called on the 3rd accused person, the Appellant, Matthew Nwokocha for his defence but he refused to enter his defence.
Thereafter, the court adjourned the case to 2nd March, 2006 for addresses. On that day, the court granted the Appellant’s counsel (Mr. E.F. Njemanze) who had earlier claimed that the accused Appellant has lost confidence in him the liberty to submit written address on behalf of the Appellant.
The case was subsequently adjourned first to 3/5/2006 and later to 18/5/2006 for address.
On 18/5/2006, the counsel for the 1st and the 2nd accused addressed the court. The Prosecution’s Reply was taken on 19/5/2006. On that date, the case was adjourned to 28/9/2006 for judgment on 28/9/2006, the learned trial Judge convicted the Appellant and the two other accused persons and sentenced accordingly.
Dissatisfied with the judgment, the Appellant filed a Notice of Appeal (containing four (4) grounds of appeal) before this court on 18/10/2006.
Appellant’s brief of argument dated 20/6/2011 was filed on 4/7/2011. Respondent’s brief of argument dated 30/6/11 was filed on 4/7/11.
Learned counsel for the Appellant nominated three (3) issues for determination. They are:
“(a) Whether the Appellant (3rd Accused) had a fair trial/hearing having regard to the fact that the court failed to assign to him a counsel to defend him or allow him the opportunity to engage the services of a counsel of his choice to defend him when his counsel no longer continue his defence considering the provisions of Section 352 of the Criminal Procedure Act and Section 36 of the 1999 Constitution (as amended).
(b) Whether the Prosecution proved its case against the Appellant (3rd Accused) beyond reasonable doubt
(c) Whether the lower court was right to convict the appellant (3rd Accused) based on Exhibit “D” which was made on 12/8/98 before the arrest of the Appellant, and is the said Exhibit “D” admissible in the circumstances.”
Learned counsel for the Respondent, on the other hand formulated two (2) issues for determination as follows:
“(a) Whether the Appellant did not have a fair hearing.
(a) Whether the prosecution did not proof its case beyond reasonable doubt against the Appellant Matthew Nwokocha in this case”.
On Issue No. 1, Appellant contends that he was not afforded a fair hearing or trial as provided by Section 36 (1) and (6) of the 1999 Constitution (as amended). That, what transpires at the trial was a travesty of justice. The grounds for the above contention are as follows:
(a) counsel for appellant was not in court when the PW3 testified and was not cross-examined by his counsel (pages 84 – 86 of the Record).
(b) The Appellant did not testify at the trial because of the heated arguments/accusations and loss of confidence Appellant had both towards the trial court and his counsel. The scene is properly captured at pages 119 – 120, 120 – 122, 123, 124 – 126 of the record.
(c) counsel for the Appellant applied to withdraw from the matter and be discharged since Appellant had lost confidence in him to handle the defence for him but the trial court in grave error. See pages 124 – 126 of the record recorded as follows:
“Mr. Njemanze applied – renews his application to be discharged. Says that the accused has refused to heed to his instructions to give evidence instead he has engaged himself in campaign of caluming against him as his counsel, against lawyers and the trial court. Says no useful purpose will be served in defending one who has lost confidence in one.”
Learned counsel for the Appellant submitted further that at page 125, lines 14 – 17 of the record, the Appellant bluntly said he does not require the services of his counsel. But, that unfortunately, the trial court instead of considering the implication of the outburst of the Appellant, the nature of the offence, the sentence attachable to the conviction in granting an adjournment to the Appellant to get another counsel simply went on with the case notwithstanding that defence counsel was no longer appearing in the matter.
He submitted that it is implicit in the concept of fair hearing as an aspect of natural justice in the broad sense that the court should give equal opportunity to both sides to the conflict.
An armed robbery trial, he said, cannot be said to be fair when considering the gamut of the trial especially what transpired at pages 121 – 126 of the record that the trial was fair when the accused standing trial for his life, has to conduct the case himself.
Counsel submitted that the trial court ought to have assigned a new counsel for the Appellant to continue the defence or adjourn for him to secure the services of another counsel. Failure to assign or allow the Appellant secure a new counsel where non appeared for him amounts to a denial of fair hearing under Section 36 of the 1999 Constitution (as amended).
On this, counsel referred to the cases of Tajudeen Bello v. The State (1981) 2 NCLR 677, Saka v. The State (1981) 11 – 12 SC 65 at 69 and 83 and Udo v. State (1988) 3 NWLR (Pt. 82) 316.
It was argued on behalf of the Appellant, that the discretion the trial court exercised in disallowing the appellant’s application for a new counsel was not properly exercised and that it was also a breach of fair hearing that the trial court received addresses from counsel for other accused and nothing was urged in favour of the Appellant.
It is the contention of the learned counsel for the Respondent on the other hand that the Appellant had a fair trial.
Respondent’s counsel submitted that the Appellant took plea along with his co-accused persons the 1st and 2nd accused on 31st August 1999 after the charge was read over and explained to them. That, the accused persons the Appellant inclusive were duly represented by counsel. (page 31 of the Record).
In arguing that the complaint of the Appellant’s counsel that the Appellant was not given a fair trial/hearing is unfounded the Respondent’s counsel observed that a fair hearing involves a fair trial and that there is no difference between the two.
He referred to the case of Mohammed v. Kano N.A. (1968) 1 All NLR 424 at 436 and submitted that the true test of fair hearing is the impression of a reasonable person who was present at the trial whether from his observation justice has been done in the case.
Counsel submitted that a reasonable man observing the totality of the trial will hold that there was a fair trial and that the Appellant refused to enter his defence because he had none to offer and would rather have the case dragged on indefinitely. Moreover, the Appellant himself by implication stated so in an answer put to him by the trial court.
“Court: if this case is transferred it will affect the co-accused as it will start de novo
Ans: I do not know or care about them. I was arrested and detained alone.” (pages 125 – 126 of the Record).”
Counsel submitted that the Appellant at all times during the trial was duly represented by a counsel. That when PW3 testified on 4/2/2003 the Appellant was represented by counsel for the 1st accused I.M. Anyanwu, Esq.
He referred to page 84 of the record, where the appearance was so recorded.
“I.M. Anyanwu for the 1st accused person. Holds brief of E.F. Njemanze for the 3rd accused person.”
Counsel submitted that the cross-examination of I.M. Anyanwu, counsel for the 1st accused holding brief for E.F. Njemanze also covers the appellant as 3rd accused Person.
Respondent’s counsel further submitted as follows:
1. At the close of the prosecution’s case the 2nd accused made a no case submission on 29th January 2004, Appellant was represented by his counsel E.F. Njemanze, Esq. (see page 90 of the Record)
2. The 2nd accused was overruled and 1st accused entered his defence as Dw1 on 9th June 2005. Appellant was duly represented. (See page 106 of the Record.)
3. The DW3, witness for the 2nd accused testified on 31st October 2005 and the Appellant was represented by his counsel. (See Page 115 of the Record.)
4. The Appellant never at any time during trial objected to any of the counsel holding brief for his counsel nor had any problem with his counsel neither did he indicate any loss of confidence on his counsel or trial judge.
5. At the close of the case of the 2nd accused person which the Appellant and his counsel fully participated, (see page 115 of the Record), Appellant was called upon by the trial judge to enter his defence and he began to play funny.
“Court: To 3rd accused: Go to the witness box to give evidence.
Ans: I want to see my statement which I made to the police before I enter the witness box.
Court: To who did you make the statement?
Ans: It was made to P.C. Egbolo.
Court: What date did you make the statement?
Ans: It was in September 1998.
Court: Where did you make the statement?
Ans: That is all for now until I see my statement ……” (See page 119 of the record).”
Counsel submitted that the Respondent in answer to question part by the court stated “All statement made by 3rd accused were tendered through the IPO. They are in court as “Exhibits D & E” …The only statements made by the 3rd accused were those tendered and marked?”
He said on 25th January 2006, the Appellant still refused to enter his defence and he was represented by his counsel E.F. Njemanze, the court noted:
“This case came up for defence by the 3rd accused on 7th November 2005. He refused to testify claiming that he will only do so if given the statement which he made to a CPL. Ogbolo in 1998. He again refused to enter his defence today. In the circumstance my belief is that he has nothing to offer in defence. I shall therefore adjourn the case for address by the counsel. Case adjourned to 2nd March 2006 for address”. See page 123 of the Record.
Counsel further submitted that on the 2nd of March 2006, Appellant was represented by his counsel – E.F. Njemanze. The counsel asked to be discharged from the case as the accused has refused to heed his instruction to give evidence instead he has engaged himself in campaign of calumng against lawyers and the trial court. Says that no useful purpose will be served in defending one who has no confidence in one.”
That, the Appellant in response stated “…I have lost confidence in this court and that I do not want this court to continue with my trial.”
Counsel submitted that the court considered both applications and held:
“I shall refuse both application of the 3rd accused counsel to be discharged and that of the 3rd accused as that of an accused refusing to put up a defence. The case is adjourned for address. Counsel for 3rd accused is allowed to submit a written address Adjourned to 3rd April 2006 for address” (pages 125- 127 of the Record).
On these facts, learned counsel for the Respondent submitted that the Appellant and his counsel’s applications were calculated to frustrate and forestall the prosecution of the case which has lasted 7(seven) years with the same counsel appearing for the Appellant.
He submitted that the learned trial Judge was right in calling for the counsel submission in the circumstances. And, that from the totality of the case, fair hearing was accorded the Appellant.
I will like to observe before rendering a decision on Issue No. 1 that I have carefully gone through the record of proceedings in this case and can confidently say that the learned counsel for the Respondent rendered a more truthful account of the proceedings in this case. For example, the record of proceedings of 4th February 2003 contained at pages 84 – 86 of the record shows contrary to the submission of the learned counsel for the Appellant that when Dr. Jonathan Nnawuihe Osuji testified in the case as PW3, the Appellant was indeed represented by I.M. Anyanwu who held the brief of E.F. Njemanze for 3rd accused (Appellant).
Now, from the submission of counsel, it may be of interest to know the reasons on record why the Appellant claimed to have lost confidence in the court itself.
The rather dramatic event took place in the proceedings of 2nd day of March, 2006 at pages 124 – 126 of the record.
The proceedings of the court was adjourned from 23rd January 2006 to the said 2nd March 2006 for addresses by counsel after the Appellant refused the second time to enter his defence.
The proceedings of 2nd Mach 2006 read as follows:
“Accused persons present.
I.I. Amadi (Mrs.) state counsel for state.
I.M. Anyanwu for 1st accused holds the brief of M.O. Uzoma tor 2nd accused.
E.F. Njemanze for 3rd accused.
Mr. Njemanze applies renews his application to be discharged. Says that the accused has refused to heed his instruction to give evidence instead he has engaged himself in campaign of calumny against him as his counsel against lawyers and the trial court.
Says that no useful purpose will be served in defending one who has lost confidence in one.
Court: To the 3rd accused:
You heard your counsel, what do you say?
Ans: I had said that I have lost confidence in this court and that I do not want this court to continue with my trial.
Court: To 3rd accused – what court do you want?
Ans: Any other court.
Court: what reasons have you for the loss of confidence?
Ans: I have been facing trial in this court since 1999 and nothing has happened. The statement which I made to police in September was not tendered before this court. The only brother I have who has been financing the case is now deceased and the counsel has been asking for money.
I have been receiving threats from this court e.g. when the court told me that I will meet him next year. That was in November 2005. I see that as a threat.
The court said last year that I was using delay tactics. He called me a criminal and that I would stay in prison.
Court: You said that your counsel was asking of money what if he is prepared to go on without money.
Ans: I do not need his assistance any more.
Court: Are you prepared to get another counsel?
Ans: Yes, but not if the case is still in this court.
Court: It follows that your problems with your counsel is not money or death of your brother. How do you pay another counsel?
Ans: My mother is there. I can also go for legal aid counsel. You cannot make choice for me.
Court: Have you applied for transfer?
Ans: I will do that if necessary.
Court: If this case is transferred, it will affect the co-accused as it will start de novo.
Ans: I do not know or care about them. I was arrested and detained alone.
Mrs. Amadi in re-action says that the application of both of counsel and transfer are belated. The accused cannot now ask for change of counsel or court. Says that the charge is for armed robbery and legal Aid counsel do not take up armed robbery matters.
Urges the court to refuse the application.
Court: Much as the court appreciated the position of the defence counsel it has also taken notice of the effect of granting the application considering the nature of the charge, length and stage of the trial.
I shall refuse both application of the 3rd accused counsel to be discharged and that of the 3rd accused as that of an accused refusing to put up a defence. The case is adjourned for address. Counsel for the 3rd accused is allowed to submit a written address…
The first thing to note in deciding Appellant’s Issue No. 1 is that the learned trial Judge in exercising a discretion to refuse the applications of the Appellant and his counsel as acted judiciously and judicially as he is expected to do.
In the first place, he acted with great wisdom given the circumstances of the case and he was also guided by Sound legal principles. The refusal of these applications by the learned trial Judge cannot be separated from the antecedents in the case which include the length of time the trial had taken between 1999 – 2006, the fact that the Appellant was charged along with two other accused persons, the fact that it was after the Appellant failed to enter his defence for no valid reasons at all on two occasions that the court had to adjourn on 23rd January 2006, that fact that the learned counsel for the 3rd accused/Appellant ordinarily would not have asked for a discharge from the case and finally the fact that the applications were opposed by the state.
At this stage, I recall the saying that Justice is not a one sided game. Justice is usually a two-way, perhaps a three – way traffic. In the instance case, Justice to the accused, justice to the state and in no less a significant sense justice to the victim of the crime.
Secondly, in my humble opinion, the Appellant in the instant case was given every opportunity to enter his defence and to take advantage of the constitutional and legal provisions relating to fair trials and fair hearing but refused to avail himself of the opportunities. It is clear from the facts and circumstances of the case that the Appellant was in a deliberate, conscious and calculated attempt to frustrate and forestall the prosecution of the case.
It is now settled that a party who deliberately spurns an opportunity to present his case like the Appellant in this case cannot turn round to make a complaint that he was denied fair hearing. The rule pertaining to fair hearing simply means that parties must be given the opportunity to present their case. It is not the rule that no matter the circumstance, the court must sit on its hands, wait at all costs and at all times for a party to present his case. If this is the rule, then cases will never be determined. Therefore, at some point, as it happened in the instant case, the court must put its foot down.
Again, where as in the instant, case, a party to a suit has been evidently accorded every reasonable opportunity of being heard, and for no just cause whatsoever refuses to enter his defence or refuses or neglects to attend the sittings of the court, he is deemed to have voluntarily abandoned his case or defence and cannot thus complain of breach or denial of fair hearing.
See Mirchandani v. Pinheiro (2001) 3 NWLR (pt. 701) 557, Okiki v. L.P.D.C. (2006) 1 NWLR (Pt. 960) 67, Folbod Investment Ltd. V. Alpha Merchant Bank Ltd. (1996) 10 NWLR (PT. 478) 344, S & D Const. Co. Ltd. V. Ayoku (2003) 5 NWLR (pt. 813) 278, Abubakar v. INEC (2004) 1 NWLR (Pt. 854) 207, Scott Emuakpor v. Ukaube (1979) 1 SC 6, Oyeyipo v. Oyinloye (1987) 1 NWLR (pt. 50) 356 Omo v. JSC (2000) 12 NWLR (Pt. 682) 444; Usani v. Duke (2006) 17 NWLR (Pt. 1009) 610, A.N.P.P. v. REC Akwa Ibom State (2008) 8 NWLR (Pt. 1090) 453.
In a fairly related civil case, where the appellants reacted negatively to an early adjournment given by the court, failed to attend court sittings and turned around that their right to fair hearing was breached; Saulawa JCA in his supporting judgment remarked as follows:
“it is rather obvious, as strenuously highlighted above, that the appellants were the very architects of their own predicament. They deliberately, and rather stubbornly, stayed away from the proceedings of the court despite the fact that they were duly served with the necessary hearing notices to so appear in court. Having voluntarily abstained from the court sittings in question, the Appellants cannot now be heard complaining that they had been denied fair hearing.”
See, Joel Etipetip Ukwuyok & 6 ors v. H.R.H. Festus Silas Ogbulu (The Okkan – Ama of Ibotirem Town) & 4 Ors (2010) 5 NWLR (pt. 1187) 316 at 346.
Before then, but on a similar note, Jega JCA held in the case of Okike v. L.P.D.C. (2006) 1 NWLR (Pt. 960) 67 at 98 as follows:
“From the facts of this case and the available evidence as contained in the record of proceedings before the court, the Appellant has been served with notice of all the sittings of the 1st respondent tribunal and he deliberately refused to attend the sittings of the tribunal which he is duly aware of. If the appellant is interested in knowing the outcome of the proceedings of the 1st respondent tribunal he should have been present at its proceedings. So he cannot now turn round and claim that he has been denied his right of fair hearing as provided by Section 36 (1) of the 1999 Constitution of the Federal Republic of Nigeria.”
The attitude of the appellant in the instant case reminds one of the comments of Niki Tobi JSC in the case of Adebayo v. Attorney General of Ogun State (2009) 7 NWLR (pt. 1095) 201 at 205 to 206, as to the growing tendency to abuse the fair hearing provisions. He had this to say:
“Learned counsel for the appellant roped in the fair hearing principle. I have seen in recent times that parties who have bad cases embrace and make use of the constitutional provision for fair hearing to bamboozle the adverse party and the Court, with a view to moving the court away from the live issues in litigation. They make so much weather and sing the familiar song that the constitutional provision is violated or contravened. They do not stop there, they rake the defence in most inappropriate cases because they have nothing to canvass in their favour in the case. The fair hearing provision in the Constitution is the machinery or locomotive of justice, not a spare part to propel or invigorate the case of the user. It is not a casual principle of law available to a party to be picked up at will in a case and force the court to apply it to his advantage. On the contrary, it is a formidable and fundamental provision available to a party who is really denied fair hearing because he was not heard or that he was not properly heard in the case. Let litigants who have nothing useful to advocate in favour of their cases leave the fair hearing constitutional provision alone because it is not available to them just for the asking.”
In the instance case, the learned trial Judge was not expected to wait indefinitely for the written address of the learned counsel to an Appellant who refused to enter a defence in reaching a decision in the case before him.
Issue No. 1 is resolved against the Appellant.
Learned counsel for the Appellant argued together his Issues Nos. 2 and 3. He submitted that the prosecution did not prove its case against the Appellant beyond reasonable doubt. He referred to the provision of Sections 136 – 138 of the Evidence act. He said the lower court convicted the Appellant based on Exhibit “D”. He argued that Exhibit “D” cannot be attached such weight which the lower court made of it in its judgment. He said Exhibit D was purportedly made on 12/8/98 (page 28 – 29 of the Record) But, that at pages 26 – 27 of the record, the Police Investigation Report titled “Re. Case of Armed Robbery: suspect – Matthew Nwokocha” dated 5/11/98, stated in paragraph 3 that on the 9th day of September 1998, defectives trailed one Matthew Nwokocha mentioned in the robbery to Port-Harcourt Rivers State where he was arrested.
Counsel submitted that Exhibit “D” was made before the arrest of Appellant. Exhibit D cannot in the circumstance, be ascribed as confessional statement and ought to be discountenanced by the trial court. The trial court, said counsel, relied heavily on Exhibit “D” in convicting Appellant and other co-accused in spite of the obvious deficiencies of the purported statement.
Counsel submitted that PW2 was emphatic that Appellant was arrested in September 1998 and that at page 61 of the record, PW2 stated he recorded two statements of Appellant dated 12th August, 1998 and 15th August 1998 and that he (PW2) wrote a report on the investigation.
It is also important to state, said counsel, that the said Exhibit D was not counter-signed by a superior officer at least to confirm its authenticity.
He submitted that PW2 showed he was not a witness of truth when he somersaulted under cross-examination to say that Appellant was arrested in August 1998 and no longer September 1998 as contained in his Evidence in – chief and report of his Superior Officer S.N. Oguh (ACP).
Counsel submitted further that the report of 5th November 1998 is an official proceeding and no oral evidence is acceptable to contradict, alter, add or vary it. – Section 132 of the Evidence Act. PW2, said counsel, had admitted making a report in writing which was signed by his Superior Officer S.N. Oguh (ACP) on 5th November 1998. His evidence at the trial which tends to repudiate the content of that report shows that PW2 is unreliable and should be treated as such. He referred, to the cases of Asuquo Williams v. The State (1975) 9 – 11 SC 139 Christopher Onubogu v. The State (1974) 9 SC 1, R. v. Wanright. (13 Cox. CC.171, R. v. Golder (1960) 1 WRL 1169.
Counsel submitted that the trial court failed to treat evidence of PW2 as unreliable and relied on Exhibit D all in the bid to convict the Appellant. It was further submitted on behalf of the Appellant that the evidence of PW1 admitted that his wife and children were in the house when the incidence happened. The wife and children never testified of any such event. Another striking fact, according to Appellant’s counsel, is that the wife and children know the Appellant and others by their names. PW2 did not proffer any cogent reason why the wife and children of PW1 who as alleged were in the house did not make any statement or testify in a serious matter of this nature. He concluded that the only inference from these failures is that the story of armed robbery or the picture painted by PW1 is false. He urged that the appeal be allowed.
First, in reaction to Appellant’s Issue No. 2, that is whether the prosecution proved its case beyond reasonable doubt, learned counsel for the Respondent reiterated the ingredients of the offence of armed robbery and referred to the case of Abdullai v. The State (2008) 16 LCRN 96 at pages 113 – 114. He submitted that the prosecution proved theft by the accused, causing of hurt and/or wrongful restraint on the victims by the accused and also that the acts complained of were done in the process of committing the theft or in order to commit the theft.
PW1, said counsel, both in his evidence in court and Exhibit ‘A’ his extra judicial statement to the police made on 11-5-98 mentioned the names of all the accused persons the Appellant inclusive as those that attacked him in his house on 3/5/98 and what they did and how the 3rd Accused/Appellant hit and wounded him on the head with an empty bottle during the robbery. That, the robbers carted away his money and stole his trident radio.
Counsel submitted that PW2, the medical doctor confirmed that what he observed on the head of the PW1 was a jaggared laceration injury. Further, that PW2 testified that on taking over the case file from the Police Station Iho he saw inter alia the statement of PW1 in the said file and that PW1 made statement to him also. That, the Appellant fled after committing the crime and was later arrested in Port-Harcourt. He was brought back to the State CID Owerri where he volunteered Exhibit D and E to PW2.
Learned counsel for the Respondent further submitted that the learned trial Judge heard the prosecution witnesses and the defence and their witnesses and the Appellant who choose not to enter his defence as not having anything to say in his defence.
Counsel referred to the statement of Kawu JSC in Sylvester Utteh v. The State (1992) 2 NWLR (Pt. 223) 257 and submitted that where as in this case, the Appellant chooses to remain silent he does so at his own peril.
I have no doubt that the prosecution proved its case against the Appellant in this case beyond reasonable doubt. The evidence of PW1, PW2 and PW3 was sufficient to fix the Appellant with the commission of the offence charged. Also, in the con of this case it must be further observed that although the burden on the prosecution is to prove its case against the accused person beyond reasonable doubt, the prosecution has a discretion to call only those witnesses required to unfold its case. The law does not impose on the prosecution, the duty or function of both the prosecution and the defence.
Nkebisi v. State (2010) 5 NWLR (Pt. 1188) 471, Okpulor v. The State (1990) 7 NWLR (Pt. 164) 581 at 589 – 593
Indeed, the evidence if PW1 alone would have been sufficient to discharge the burden on the prosecution. This is because, a court can and is entitled to act on the evidence of one single witness if the witness is believed, given all the circumstances of the case. A single credible witness can establish a case beyond reasonable doubt except where the law requires corroboration.
See the cases of Igbo v. The State (1975) 9-11 SC, 129-136, Onafowokan v. The State (1987) 3 NWLR (Pt.61) 538 at 552, (1987) 7 SCNJ 233, Ogoala v. The State (1991) 2 NWLR (Pt. 175) 509 at 533 (1991) 3 SCNJ 61, Ugwumba v. The State (1993) 5 NWLR (Pt. 296) 660 at 674, (1993)6 SCNJ 217, Effiong v. The State (1998) 8 NWLR (Pt. 562)362, (1998) 5 SCNJ 158.
Learned counsel for the Appellant makes heavy weather of the reliance on Exhibit D, the Appellant’s statement to convict the Appellant. To the contrary, the evidence of PW1, PW2 and PW3 would have been sufficient to convict the Appellant with or without Exhibit D.
Meanwhile, all that the learned trial Judge did of Exhibit D in relation to the Appellant was to use same to corroborate the evidence of PW1.
Thus, there was nothing wrong in the view expressed by the learned trial Judge at page 116 of the record that:
“The 3rd accused, Matthew Nwokocha refused to testify in his defence. He made Exhibits “D” and “E” which are accepted as voluntary. His said statements particularly Exhibit “D” confessed the crime and further corroborated the evidence of the PW1. Further his escape to Port-Harcourt in the Rivers State upon the knowledge that he was mentioned as one of the robbers further strengthened the prosecution’s case against him.”
Finally, in relation to Issue No. 2, I need not add that the choice of the Appellant to remain silent and his refusal to enter his defence does not derogate from the discharge of the prosecution’s duty to prove the case against him beyond reasonable doubt.
In the case of Sylvester Utteh v. The State (supra) at 257 and 274 the Supreme Court held that an accused person is under the constitution entitled to remain silent either during investigation or in court. Where an accused exercises this right the prosecution still is bound as the party on which the onus lies to prove its case beyond reasonable doubt. But if at the trial the prosecution calls credible evidence which in the end remains unrebutted the court is entitled to accept it.
Clearly, therefore, an accused person has the constitutional right to remain silent and leave the trial to the prosecution to prove the charge against him. This is because the citizen’s right to remain silent even when arraigned for a serious offence is an inviolable one. The prosecution is bound to prove its case beyond reasonable doubt but accused runs a risk in remaining silent. As he is obliged to make his defence to the charge if his remaining silent will result in his being convicted on the case against him by the prosecution.
See, Igabele v. State (2006) 6 NWLR (Pt. 975) 100, Okoro v. State (1988) 5 NWLR (Pt. 94) 255, CPL. Isah Ahmed v. The Nigeria Army (2011) 1 NWLR (Pt.1227) 89 at 118.
In the instant case, the prosecution has by credible evidence proved the case against the Appellant beyond reasonable doubt, the fact that the Appellant refused to enter his defence notwithstanding.
Issue No. 2 is resolved against the Appellant.
In response to the submission of counsel for the Appellant in issue 3, that Exhibit “D” was made before the arrest of the Appellant, Respondent’s counsel submitted that the submission by the Appellant’s counsel is unsubstantiable and his argument on same erroneous. The much that could be said about Exhibit ‘D’ and the date of arrest by the Appellant, said Respondent’s counsel is that there was a minor mistake.
He submitted, that the defence counsel never at any time put it to PW2 that he was lying or tried to contradict or challenge PW2. He merely asked PW2 the following questions which PW2 answered and that cleared the mistake.
“I see exhibit “D” there is no endorsement by a Superior Police Officer. There is also non in Exhibit ‘E’. It is correct to say that a suspect cannot make a statement before his arrest. Counsel read out the Record of Evidence of the witness on 14th December 1999 to where he was quoted as saying that the 3rd accused was arrested in September 1998.”
“Witness answered that if the date recorded was September 1998 the same was a mistake as the accused was arrested in August 1998.”
“It is true that that the 1st and 2nd accused had been arrested before the 3rd accused was arrested in August not September 1998.”
See page 72 of the Record.
On the further contention of the Appellant’s counsel that the trial Judge erred in relying on Exhibit ‘D’, the extra judicial statement of the Appellant in convicting the Appellant, Respondent’s counsel submitted to the contrary. He said that during the trial, when the prosecution counsel sought to tender Exhibit “D” the defence counsel objected on the grounds of which the trial court summed up thus:
“That the totality of the stance of the counsel for the 3rd accused is that the statement sought to be tendered was not made by the accused.”
See pages 47, 48 of the Record.
In admitting the Appellant’s statement exhibit ‘D’ thereafter, learned counsel for the Respondent submitted that the learned trial Judge was right in stating inter alia “having now heard the evidence of the prosecution as well as defence witnesses…”, because, indeed, he had heard all of them. The fact that the Appellant refused to enter his defence does not denigrate from the validity of the trial.
Counsel referred to the cases of R. v. Igwe 5 FSL 55 and Godwin Ikpasa v. Bendel State (1981) 9 SC 7 and submitted that the learned Judge was right in making deductions from the evidence before it and in admitting the statement as something which had occurred in the course of the investigation conducted by the police in the case.
On the first part of Appellant’s Issue No. 3, wherein the learned counsel for the Appellant pointed out a contradiction in between the Evidence in chief of PW2 and his cross-examination as to whether or not Exhibit D was made before the arrest of the Appellant, I hold the view that the contradiction in the evidence of PW2 as to date of arrest vis-a-vis the making of Exhibit ‘D’ was a minor contradiction which does not go into the substance of the prosecution’s case.
The reference by the learned counsel for the Appellant to the evidence of PW2 as equally contradicting Police Reports is irrelevant in any consideration of this case as the said Police Reports were not tendered in evidence.
The law is settled that it is not every contradiction in the evidence adduced that it is fatal to a case. A contradiction in the evidence adduced by the prosecution can only help an accused person if it is material and affects the substance of the case.
In the instant case, the contradiction in the evidence of PW2 was minor and immaterial when compared with the totality of evidence adduced by PW1, PW2 and PW3 against the Appellant.
See, Maiyaki v. State (2008) 15 NWLR (Pt.1109) 173, Ochemaje v. State (2008) 15 NWLR (Pt. 1109) 57, Akpa v. State (2008) 14 NWLR (Pt. 1106) 72, Ikemson v. State (1989) 3 NWLR (Pt.110) 455, Kalu v. State (1988) 4 NWLR (Pt.90) 503 Uluebeka v. State (2011) 4 NWLR (Pt. 1237) 358 at 380-381.
The second aspect of Appellant’s Issue 3 relates to the admissibility of Exhibit D in the absence of Appellant entering a defence and the reliance on Exhibit D by the learned trial Judge.
In understanding this aspect of the case, it would be recalled that the learned counsel for the Appellant Mr. E.F. Njemanze objected to the admissibility of the Appellant’s confessional statement Exhibit ‘D’ at the early stages of the trial on the ground that “the statement sought to be tendered was made in August 1998 when the witness had testified that the 3rd accused was arrested in September 1998. At page 58 of the Record the learned trial Judge summed up Mr. Njemanze’s objection and said:
“It seems to me that the totality of the stance of the counsel for 3rd accused is that the statement sought to be tendered was not made by the accused.”
The learned trial Judge on 6/6/2000 rendered a Ruling on the admissibility of Appellant’s 1st statement to the police and in conclusion at page 59 of the Record said:
“In view of the consistent decisions of the Supreme Court on the Issue 1 cannot but overrule the objection of the counsel for the 3rd accused.
The statement described as the 1st statement of the 3rd accused is hereby admitted in evidence and marked Exhibit “D”.
In coming to this conclusion in the Ruling of 6/6/2000 the learned trial Judge relied on the decision of the Supreme Court in R. v. Igwe 5 FSC 55 as further emphasized in the case of Godwin Ikpasa v. Bendel State (1981) 9 SC 7 at page 28-29 where it was stated:
“It is well established practice in this country that where on production of a confession it is challenged on the ground that an accused person did not make it at all, the question whether he made it or not is a matter to be decided at the conclusion of the trial by the trial Judge himself. Wherever objection may be made by counsel in such circumstances does not affect the admissibility of the statement and therefore it should be admitted in evidence as the issue of voluntariness or otherwise of the statement does not arise for consideration and decision.”
The learned trial Judge also referred to the statement of the law at page 29 of the report in the Godwin Ikpasa case (supra) where the court enjoined the trial court to admit the confession in evidence as something which had occurred in the course of the investigation conducted by the police into the case and therefore decide or find as a matter of fact at the conclusion of the case whether or not the Appellant had made the statement and whether having regard to surrounding circumstances it is true and voluntary.
See also, Queen v. Eguabor 1962 1 All N.L.R. 287 and R. v. Agarigaga Itule 1961 1 all N.L.R.462.
In the case of Queen v. Eguabor the Supreme Court held at page 292.
“There are several irregularities here. In the first place, as this court held in R. v. Igwe (1960) 5 FSC 55, it is only where an issue arises as to whether a confession was made voluntarily that the exceptional procedure of holding a trial within a trial should be adopted, and if an accused person wishes to deny that he made a statement attributed to him or that his statement was correctly recorded, the time for him to do so is when he comes to make his defence”.
The learned trial Judge followed the injunction laid down in the above mentioned cases and after the close of the case, in the course of writing his judgment he made reference to the ruling of 6/6/2000 and observed at page 165 of the record as follows:
“In my ruling on 6th June, 2000 admitting the 1st statement of the 3rd accused I held the view that whether or not the 3rd accused volunteered the said statement would be determined at the conclusion of the evidence.
Having now heard the evidence of the prosecution as well as defence witnesses my view is that there are facts in that statement of the 3rd accused which he alone and no other Person could have supplied.
These facts include:
(a) The names of the other members in the gang other than Kingsley Amadi mentioned also by the PW1.
(b) The meeting and contributions at the meeting where the decision to rob the PW1 was taken
(c) The weapon carried by the armed members of the gang.
(d) The sharing of the loot
(e) The sale of the Trident Radio cassette as well as the sharing of the proceeds at Owerri.
I also believe that if the statement was foisted on the accused the writer would have included the possession of a firearm in the statement. I find as a fact that the said statement (Exhibit D) was voluntary and not obtained by duress”.
Now, Exhibit D was properly admitted and found to be a voluntary confessional statement of the Appellant. I do not see how the refusal of the Appellant in this case to enter his defence derogates from the relevance of exhibit D, its proper admissibility and the inference drawn from the statement as a relevant fact.
Learned counsel for the Respondent joined the learned trial Judge to emphasize the fact that Exhibit ‘D’ was admitted in evidence as something which had occurred in the course of the investigation conducted by the police into the case.
See, Godwin Ikpasa v. Bendel State (supra).
Clearly, exhibit ‘D’ is relevant under the provisions of sections 4, 5 and 7 of the Evidence Act 2011. In particular, Exhibit D constitutes fact necessary to explain or introduce relevant facts. Section 7 of the Evidence Act 2011 says “Facts –
(a) necessary to explain or introduce a fact in issue or relevant fact
(b) which support or rebut an inference suggested by a fact in issue or relevant fact.
(c) which establish the identity of anything or person whose identity is relevant.
(d) which fix the time or place at which any fact in issue or relevant fact happened, or
(e) which show the relation of parties by whom any such fact was transacted, are relevant in so far as they are necessary for that purpose”.
Finally, on Appellant’s issue No. 3, the learned trial Judge was right in corroborating the evidence of PW1 with the statement of the Appellant Exhibit D and in holding at page 166 of the record that:
“The 3rd accused, Matthew Nwokocha refused to testify in his defence. He made Exhibit “D and E” which are accepted as voluntary. His said statements particularly Exhibit “D” confessed the crime and further corroborated the evidence of PW1…”
Issue No.3 is resolved against the Appellant.
Having resolved the three (3) issues in this appeal against the appeal lacks merit and it is accordingly dismissed. The conviction of the Appellant by the trial Judge is affirmed.
UWANI MUSA ABBA AJI, J.C.A: I have had the privilege of reading the Judgment of my learned brother Owoade (JCA) just delivered and I agree with his reasoning and conclusion that the Appeal lacks merit. I also dismiss the Appeal.
The conviction and sentence of the Appellant is also hereby affirmed.
HARUNA M. TSAMMANI, J.C.A: I had the privilege to have read in advance the judgment delivered by my learned brother, M. A. OWOADE, JCA.
My learned brother has in his usual erudition comprehensively considered and resolved all the pertinent issues that arose in this appeal. I agree with his reasoning and conclusions reached thereon. Thus, it is also my view and I do hold that this appeal is devoid of any merit. It is accordingly dismissed. The conviction and sentence passed on the Appellant by the learned trial judge is hereby affirmed.
Appearances
Ifeoma G. Ihesie, Esq.For Appellant
AND
C.C. Dimkpa (Mrs.) Director of Estate and Trusts, Ministry of Justice Imo StateFor Respondent
