MBAGHA v. COP (2020)

MBAGHA v. COP

(2020)LCN/14421(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Wednesday, July 29, 2020

CA/A/726C/2019

Before Our Lordships:

Peter Olabisi Ige Justice of the Court of Appeal

Patricia Ajuma Mahmoud Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Between

LIVINUS MBAGHA APPELANT(S)

And

COMMISSIONER OF POLICE RESPONDENT(S)

RATIO

THE FUNDAMENTAL PRINCIPLE OF FAIR HEARING

In the determination of his civil rights and obligations or any criminal charge against, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial tribunal established by law. This right is so sacrosanct that it is guaranteed by SECTION 36 of the 1999 Constitution. The concept of fair hearing is a universal concept which assumes different nomenclatures in different legal systems: ADENIYI V GOVERNING COUNCIL OF YABA COLLEGE OF TECHNOLOGY (1993) 6 NWLR, PT 300, 526 and ELUKPO V KADUNA STATE DEVELOPMENT & PROPERTY CO LTD (2017) LPELR – 43185 (CA).
The right to a fair hearing is a very essential right for a person to secure justice. This is why the denial of the right to fair hearing in any proceedings by a Court would render such proceedings a nullity. NEWSWATCH COMMUNICATIONS LTD V ATTA (2006) 12 NWLR, PT 993, 144. Fair hearing is an embodiment of the principle of natural justice. Natural justice comprises two main principles: Audi Alteram Partem Rule and Freedom from bias. As I pointed out earlier, the concept of fair hearing assumes different nomenclatures. However, to constitute fair hearing, whether before the regular Courts or tribunals and boards of inquiry, a person accused of a crime should:
1) know what is alleged against him
2) be present when every evidence against him is tendered and
3) be given a fair opportunity to correct or contradict such evidence. See ADENIRAN V NEPA (2002) 14 NWLR PT 786, 30.
A challenge to the infringement of the right to fair can take many forms. It could be failure to issue hearing notice to a litigant or it could like the instant case be failure to accord the appellant opportunity to cross examine a witness. This comes under the third subhead, failure to give fair opportunity to correct or contradict such evidence. Since cross examination is essentially to test the veracity of a witness the issue can be subsumed under this subhead. PER MAHMOUD, J.C.A.

DIFFERENCE BETWEEN THE DUTY OF THE COURT TO CREATE THE ATMOSPHERE FOR THE FAIR HEARING OF A CASE AND THE RESPONSIBILITY OF THE LITIGANT TO TAKE ADVANTAGE OF THIS ATMOSPHERE

It must be pointed out very clearly that there is a world of difference between the duty of the Court to create the atmosphere or environment for a fair hearing of a case and the responsibility of the litigant to take advantage of this atmosphere or environment. Niki Tobi, JSC put this very profoundly when he held in the case of NEWSWATCH COMMUNICATIONS LTD V ATTAH (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. THAT IS NOT FAIR TO THE COURT AND COUNSEL MUST NOT INSTIGATE HIS CLIENT TO ACCUSE THE COURT OF DENYING HIM FAIR HEARING.” (Emphasis Provided). PER MAHMOUD, J.C.A.

WAYS OF PROVING AN OFFENCE IN CRIMINAL TRIALS

As the popular saying goes there are many ways to bell a cat!!! So it is in criminal law. There are three main ways of proving an offence: – Evidence of eye witness, also referred to as direct evidence; circumstantial evidence and confessional statement: ADEYEMO V STATE (2015) 4 SC, PT II, 112 AT 129; BILLE V STATE (2016) 15 NWLR, PT 1536, 363; ILODIGWE V STATE (2012) 18 NWLR, PT 1331, 1;ANYASODOR V STATE (2018) LPELR – 43720 (SC) and UDOH V STATE (2019) LPELR – 47096 (CA). The prosecution can prove the commission of a crime beyond reasonable doubt by any or a combination of the three ways. PER MAHMOUD, J.C.A.

WHETHER OR NOT A CONFESSIONAL STATEMENT IS THE BEST FORM OF EVIDENCE

Confessional statements have often been said to be the best form of evidence. Several authorities have made this repeatedly clear but MUHAMMAD, JCS in ADIO V STATE (1986) 5 SC, 194 AT 219-220 stated this quite profoundly and impactfully when he opined as follows:-
“A case can be proved by direct oral evidence if the testimony of the witness who saw and heard them are believed, there will be proof beyond reasonable doubt………the local case of JOSEPH OGUNBADEJO V THE QUEEN (1954) 14 WACA 458 (otherwise known as APALARE’S case) is an excellent example of proof beyond reasonable doubt based purely on inference from Circumstantial Evidence BUT FAR ABOVE THESE TWO METHODS OF PROOF IS VOLUNTARY CONFESSION OF GUILT BY AN ACCUSED PERSON IF IT IS DIRECT AND POSITIVE AND SATISFACTORILY PROVED SHOULD OCCUPY THE HIGHEST PLACE OF AUTHENTICITY WHEN IT COMES TO PROOF BEYOND REASONABLE DOUBT. THIS IS WHY A CONFESSION BY ITSELF IS SUFFICIENT WITHOUT FURTHER CONSIDERATION TO WARRANT? A CONVICTION unless the trial Court is satisfied that the case has not been proved beyond reasonable doubt.” (Emphasis provided). PER MAHMOUD, J.C.A.

THE DUTY OF THE COURT IN TESTING THE VERACITY OF A CONFESSIONAL STATEMENT

On retraction of the confessional statement of the appellant, the Supreme Court put this to rest when it held in the case of ALAO V STATE (2019) LPELR – 47856 (SC) that the retraction of a confessional statement does not render the confession inadmissible. What the Court is expected to do is to test the veracity and truthfulness of the statement in the light of other credible evidence to determine whether it is consistent with other facts proved and ascertained. The settled position of the law is that the Court can convict on a retracted confessional statement if it is satisfied of its voluntariness. See AKPAN V THE STATE (2000) 8 WRN 130; STATE V ISAH (2012) 10 NWLR PT 1327, 629 and OMOLAYE V STATE (2017) LPELR – 43632 (CA). PER MAHMOUD, J.C.A.

PATRICIA AJUMA MAHMOUD, J.C.A. (Delivering The Leading Judgment): The appellant along with nine others were on the 18/10/2016 arraigned in the High Court of the FCT, Abuja on a four count charge of conspiracy to commit armed robbery, armed robbery, unlawful possession of fire arms and causing grievous bodily harm contrary to Sections 1, 2, 3 and 6 of the Robbery and Firearms (Special Provision) Act, Laws of the FRN, 2004.

In proof of its case the prosecution called five witnesses and tendered exhibits. The case of the prosecution was that on the night of 28/05/2016 at about 2-3am some armed men went into the factory premises of Lento Aluminium Company Jabi, Abuja and stole aluminium coils worth N25 million. In the process of the robbery two security men on duty in the factory who also live in the premises of the factory with their families were injured or wounded. The phone of one of the security men, PW1 and that of his wife were also stolen by the armed robbers. One of the armed robbers accidentally dropped his wallet containing a driver’s licence bearing the name of one Sunday Aniekan, the 8th defendant at the trial

and a receipt bearing Mishak Welding Company of an address in Akwa-Ibom State. It was this defendant that provided the link through which the other nine defendants were arrested. One of the defendants, Uchenna Mbagha was shot in the leg in the course of his arrest in Asaba while trying to evade arrest. He died subsequently in prison custody from the bullet wounds while awaiting trial. His name was eventually struck off from the charge sheet.

In their defence the nine remaining defendants each testified in his own behalf as DW1-DW9, called no other witness and tendered no exhibit. However, at the conclusion of defence but before adoption of written addresses another defendant died bringing the total number of defendants that were convicted and sentenced to eight.

At the conclusion of hearing, the learned trial judge in his judgment delivered on the 14th day of June, 2009 convicted and sentenced the appellant and five co-accused to twenty (20) years imprisonment and for the offences of criminal conspiracy to commit robbery and Robbery contrary to Section 1 of the Robbery and Firearm (Special Provision) Act, Laws of the FRN, 2004. The leaned trial judge

discharged and acquitted all the defendants of the charges of armed robbery and causing grievous bodily harm. His Lordship also discharged and acquitted Godwin Timothy (3rd Defendant) and Raimi Mudashiru (6th Defendant) of all the four heads of charge.

Dissatisfied with the conviction and sentence, the appellant by a Notice of Appeal dated the 19/06/2019 but filed on the 26th day of June, 2019 appealed to this Court on seven grounds with their particulars as follows:
GROUND ONE
The learned trial judge erred when he refused to grant bail to the defendants despite the evidence brought before the Court.
Particulars of Error
1. The Court did not properly evaluate the evidence presented before the Court before refusing to admit the accused persons to bail.
2. One of the defendants have since died and others are seriously sick in prison.
GROUND TWO
The learned judge erred in law by holding that the Court had the jurisdiction to try this matter irrespective of the fact that the defendants were not arraigned before the Court in line with the provisions of the Administration of Justice Act 2015.
Particulars of Error

There was no legal advice or input from the office of the Attorney General of the Federation with respects to the charge.
2. There is nothing before the Court to show that the office of the Attorney General had authorized the Respondents to prosecute the matter which is a case of armed robbery with capital punishment.
3. The said arraignment was not in consonance with Section 104 to 106 of the Administration of Criminal Justice Act 2015 and Section 174 (1) of the 1999 Constitution.
4. The police who investigated the matter was also the complainant in the case.
GROUND THREE
The learned trial judge exhibited bias in handling the matter
Particulars of Error
1. The learned trial judge refused with impunity to release the former 2nd defendant Uchenna Mbagha who sustained serious gun injuries and did not allow him to receive medical help outside despite medical reports.
2. That the said Uchenna Mbagha thereafter died.
3. The judge did not allow the defence lawyers to do their job as the judge descended into the arena of trial.
4. The learned trial judge was selective in recording the proceedings as he did not record

all the facts presented before him.
5. The different rulings delivered by the Court were contradictory of each other.
GROUND FOUR
The learned trial judge erred in law by admitting the purported confessional statements of the defendants despite the compelling evidence of bullet wounds before him.
Particulars of Error
1. The former 2nd defendant Uchenna Mbagha was shot by the police when the said statements were taken and medical certificates were tendered in Court to that effect.
2. The learned trial judge ignored the evidence of the witness given during the trial within trial to that effect.
3. The said confessional statements were not obtained in line with the provisions of the Administration of Criminal Justice Act 2015 and the Evidence Act 2011.
GROUND FIVE
The learned trial judge did not accord the defendant a right to fair hearing during the course of trial.
Particulars of Error
1. The learned trial judge relied on the evidence of a witness who was not cross examined in the course of trial within trial.
2. The said witness was not listed in the proof of evidence and his written statement was not

given to the defendants.
GROUND SIX
The learned trial judge convicted the appellant irrespective of the fact that the prosecution did not prove their case beyond reasonable doubt.
Particulars in Error
1. Non (sic) of the prosecution witnesses in the course of trial mentioned the name of the appellant in connection with the alleged crime.
2. All the witnesses never identified the appellant. their testimony was that they do not know the Appellant.
3. PW1 who claimed to be an eye witness said that the goods that were robbed were seen elsewhere in the custody of someone not produced in Court.
4. The evidence presented before the Court were not properly evaluated before the conviction.
GROUND SEVEN
The learned trial judge in breach of his role as a judge was not fair and selective to the different defendants in the course of trial.
Particulars of Error
1.The learned trial judge convicted some defendants and released some others based on the same evidence presented against them.

To prosecute his appeal, the appellant filed his brief of argument on the 8th of October, 2019 and same was deemed as properly

filed on the 18/05/2020. In arguing the appeal, MS Esther Igoche of counsel for the appellant adopted the brief as their legal arguments in support of the appeal. In it the appellant distilled the following four issues for determination:-
i) Whether the appellant in the present appeal was given a fair hearing by the lower Court in this matter to which we respond in the negative
ii) Closely related to the above is whether the prosecution proved the charge against the appellant beyond reasonable doubt and we submit that they did not
iii) The third issue for determination is whether the trial Court evaluated the evidence presented before it properly and if not whether the failure had resulted in injustice to the appellant and we submit that manifest injustice has been occasioned on the appellant.
iv) The fourth issue is whether the trial judge exhibited bias in handling this case in all proceedings and also selective in sentencing the Defendants and we submit that the judge was biased and selective.

In answering issue (1) in the negative counsel submitted that failure to present PW5 the police officer through whom Exhibit D the

confessional statement of the appellant was admitted in evidence is fatal. That the twin effect of this is that the testimony of PW5 should be expunged from the records and it also means that the appellant was not given a fair hearing. Counsel referred to the cases of BABA V NCATA (1991) 5 NWLR PT 192, 388, ONWUKA V OWOLEFA (2001) 7 NWLR, PT 713, 695 and C. O. P. ADAMAWA STATE V SARATU (2015) 3 NWLR, PT 1446.

Counsel contended that since cross examination is a weapon which a party can use to demolish his opponent’s case by testing the veracity and accuracy of the witness the denial of this right amounts to a denial of fair hearing. Counsel referred to the cases of AYORINDE V SOGUNRO (2012) 11 NWLR, PT 1312, 460; ONAGORUWA V THE STATE (1992) 2 NWLR, PT 221, 33; ISIAKA V STATE (2011) AFWLR, PT 583 AT 1966; BORISHADE V FRN (2012) 18 NWLR, PT 1332, 347.

Counsel referred to the case of ISIAKA V STATE (SUPRA) to submit that the Court should not act on the evidence of a witness whom the other party wants to cross examine but cannot be produced for cross examination. Counsel urged the Court to resolve this issue in favour of the appellant.

On issue (2) MS Igoche submitted that the prosecution failed to prove their case against the appellant beyond reasonable doubt. That none of the witnesses testified to finding any of the stolen goods in the possession of the appellant. Counsel relied on the case of ALIU V STATE (2015) 2 NWLR, PT 1442, 51 to contend that in discharging the burden of proof beyond reasonable doubt to establish the guilt of the accused person, the prosecution must lead credible evidence which establishes every ingredient of the offence beyond reasonable doubt. That none of the witnesses linked the appellant to the offence. That the only connection was that his truck was used to convey the stolen goods. That this is predicated on the fact that his truck was hired by the late 2nd defendant, Uchenna Mbagha who paid N120, 000 to the appellant. Counsel also argued that the appellant was never identified as one of the robbers who invaded the Aluminum foil company factory on the date of the incident. That the police did not carry out an identification parade to find out whether the appellant was one of the robbers. That identification parade is necessary to establish the fact that the

person charged is the same as the person who committed the offence. Counsel referred to the case of BOLANLE V STATE (2005) 1 NCC, 355 to contend that identification parade is necessary when the link between the defendant and the alleged offence is devoid of cogent evidence of linkage like the instant case.

While conceding that a person may be convicted on his confessional statement alone, counsel argued that such confession must be direct, positive and unequivocal. Counsel referred to the cases of BATURE V STATE (1994) 1 NWLR, PT 75, 10 and GALADIMA V STATE (2013) NWLR, PT 1333, 632 to contend that Exhibit D, the appellant’s confessional statement is vague and cannot be tied to the offence of robbery. Counsel submitted that Exhibit D was not counter signed by a Superior Police Officer is line with the Judges rules and should have been treated with utmost caution. Counsel referred to the cases of COP V UDE (2011) 12 NWLR PT 1260 and STATE V SOLOLA (2005) 11 NWLR, PT 937,460.

On conspiracy, counsel referred to the cases of OKANLAWON V STATE (2015) LPELR 24838 (SC) and OKOH V STATE (2014) 8 NWLR, PT 14110, 502 to submit that the proper approach is to

deal with the substantive charge before resolving the issue of conspiracy. That this is necessary because the essential element of the offence of conspiracy is the agreement or confederacy between the accused persons and others to commit the offence which offence is committed in furtherance of the agreement.

On issue (3), counsel still went back to attack the voluntariness of Exhibit D, the confessional statement. Counsel also hinted to the doubt created from the purported confessional statement of other defendants who made reference to the 1st defendant as one ‘Alhaji’. That this doubt was never cleared by the prosecution and should have been resolved in favour of the appellant. Counsel referred to a number of cases to contend that where identification evidence is poor the trial Court should return a verdict of not guilty unless there is other evidence which goes to support the correctness of the identification:
GODSPOWER ASAKITIKPI V. THE STATE (1993) 5 NWLR (PT. 296) 641 AT 655; ACHIBONG V. STATE (2004) 1 NWLR (PT. 855) 488 AT 509-509; HENRY OTTI V. THE STATE (1993) 4 NWLR (PT. 290) 675 AT 582, CHRISTOPHER OKOSI & ANOR VS. THE STATE (1989) 1 NWLR (PT. 100) 642 AT 656 AND 657 and

BOLANLE V. THE STATE (2005) 1 NCC 342 AT PP. 354-356.
On the last issue counsel contended that by the same token that the learned trial judge discharged and acquitted by the 2nd and 5th defendants he ought to have discharged the 1st defendant/appellant. That just as his Lordship found that the evidence of PW5 did not link the two defendants with the charges so did it fail to link the appellant. That while the trial Court was of the view that DW2 had not confessed to the crime, it held that the 5th defendant did not know the other defendants a fact it found had not been contradicted. Counsel argued that the appellant merely acknowledged ownership of the truck and never confessed to committing the crime. That DW5 only stated that the appellant asked him to source for a driver and he procured DW9. Counsel referred to the case ofSTATE V JOHN (2013) 12 NWLR, PT 1368, 337 to submit that the failure of the learned trial judge to use the same yardstick he used for discharging and acquitting the 3rd and 6th defendants amounts to bias against the appellant. That the learned trial judge failed to offer the same

treatment to all the defendants. That had he done so the appellant would not have been convicted. That this bias against the appellant started from the commencement of this charge when the matter came up for bail on 28/10/2016 Counsel urged the Court to allow this appeal and set aside the decision of the trial Court.

In opposing the appeal, MR Stanley Nwodo of counsel to the Respondent adopted his brief of argument as their legal argument in support of their opposition. Not having framed distinct issues and arguing on the issues formulated by the appellant, the respondent is deemed to have adopted the four issues raised by the appellant for determination in this appeal.

On issue (1) counsel submitted that the appellant was accorded fair hearing during the trial. That at the conclusion of PW5’s testimony and before the prosecution closed its case; instead of the appellant to cross examine the witness, the counsel handling the matter who took over from MR C. J. Jiakponna opted to enter a plea bargain in the matter. Counsel referred to the case of PML (NIG) LTD V FRN (2017) to contend that plea bargain is a negotiation between the

defendants and the prosecution in which the defendants agree to plead guilty to an alleged crime in return for a reduction in the severity of the charges and consequently the sentence. That after the appellants filed the plea bargain in the trial Court; the Court rejected the application on the grounds that it was repulsive to natural justice as the appellant was being tried for armed robbery under the Robbery and Firearms Act.

Counsel contended that having filed a plea bargain application pursuant to Section 270 of ACJA, 2015, the appellant had forfeited his right of cross examination as required. Counsel contended that what the appellant did amounted to waiving his right. He should therefore not be heard to complain. Counsel referred to the case of WADATA ISAH V STATE (2017) LPLER – 43472 (SC) to submit that failure to cross examine a witness by a party who ought to do so is deemed acceptance of the fact in issue. Counsel also referred to the cases of ANTHONY OKORO V THE STATE (2012) LPELR – 7846 (SC) and HALIRU DAHIRU V STATE (2018) LPELR – 44497 (SC) to amplify the fact that failure of a party to cross examine constitutes a tacit

acceptance of the truth of the evidence of the witness.

Counsel further contended that the appellant cross examined PW5 in the trial within trial but rather than cross examine him at the conclusion of his testimony in chief, opted to enter a plea bargain thereby waving their rights to cross examine the witness.

On the challenge of the records, counsel submitted that it is trite that any person who is contending that the record of proceedings before an appellate Court is not a fair record of what happened at the trial Court must formally impeach the records. That where this is not done as in this case, it is not open to the appellate Court to speculate that other things happened in the trial which were not recorded.
Counsel referred to the cases of OHIAERI & ANOR V ORISAKWE (2018) LPELR – 45019 (CA); OSANEBI V LAWRENCE & ORS (2018) LPELR – 46111 (CA) and DANLADI V DANGIRI & ORS (2014) LPELR – 24020 (SC).

On issue (2) counsel submitted that the trial Court is “Dominis litis”, meaning it has the final say and determines whether a charge is proved or not. That in the instant case the trial Court saw

reasons to convict the six defendants and reasons to discharge and acquit two. That the decision of the trial Court should be affirmed as it is a legal issue which is not within the ambit of the appellate Court to determine.

Counsel also submitted that the appellant has failed to point out any error committed by the lower Court in its findings. That no issue was distilled from ground 2 of the grounds of appeal. That all the arguments proffered on this issue are completely irrelevant to the issue as formulated. Counsel referred to the case of ESSIEN V STATE (2013) VOL 9, PARAS 1 & 3 to submit that where an appellant fails to distill any issue for determination in respect of any ground of appeal, the ground is deemed abandoned and liable to be struck out. Counsel also submitted that the Court is entitled to convict on the evidence of a sole witness if his evidence is credible, admissible and believable and accepted by the trial Court. That the appellate Court will rarely interfere except where the decision is perverse. Counsel referred to the case of DANIEL SUGH V STATE (1988) NWLR, PT 77, 475.

On the third issue, counsel referred to the cases of

KEKONG V STATE (2017) LPELR – 42343 (SC), CHIEF FRANK EBA V CHIEF WARRI OGODO & ANOR (1984) 12 SC, 133 to submit that evaluation of evidence and credibility of witnesses are matters within the exclusive competence and domain of the trial Court. That evaluation and ascription of weight to evidence is the primary function of the trial Court. Counsel referred to pages 361-507 of the record to contend that the lower Court properly and duly evaluated the totality of the evidence led by the prosecution and the defence. He urged the Court to resolve this issue in favour of the respondent.

The last issue deals with whether there was bias exhibited by the learned trial judge. Counsel relied on the case of ABALAKA V MINISTRY OF HEALTH (2006) 2 NWLR, PT 963, 105 AT 133 to submit that for an allegation of bias to be grounded against the person of a judge, it must be made on solid and unshaken grounds, not on mere figments of imagination. That in the instant case, unlike the case of DW2 and the 5th defendant where the evidence adduced failed to link them with the charges and which position was not contradicted by the testimony of the other defendants, the

appellant was inextricably linked to the offence by several factors on record.

Counsel referred to the case of OKON V STATE (2017) LPELR – 43612 (CA) to contend that the acquittal of an accused person will not automatically lead to the acquittal of other co-accused persons charged with the same offence.

On linking the commencement of the bias to the refusal of the learned trial judge to grant bail to the appellant in the 28/10/2016, counsel submitted that it is a ridiculous proposition to equate refusal to admit to bail in an armed robbery charge to bias. Counsel referred to the case of BAMAIYI V STATE (2001) 8 NWLR, PT 715, 270 to submit that the decision to grant or refuse bail is at the discretion of the Court. That the exercise of this discretion can be tested on appeal. That by failing to appeal against the ruling refusing bail, the appellant is taken to have accepted the decision. That at any rate the application for bail was refused for all the defendants and it is surprising how the appellant wants to erect the allegation of bias against himself on this premise. Counsel urged the Court of resolve this issue in their favour, dismiss the

appeal and affirm the decision of the trial Court.

I will deal with the issues in the manner they were presented, i.e. serially. The first issue borders on fair hearing. I have considered the submission of both parties on this issue very soberly. In the determination of his civil rights and obligations or any criminal charge against, everyone is entitled to a fair hearing within a reasonable time by an independent and impartial tribunal established by law. This right is so sacrosanct that it is guaranteed by SECTION 36 of the 1999 Constitution. The concept of fair hearing is a universal concept which assumes different nomenclatures in different legal systems: ADENIYI V GOVERNING COUNCIL OF YABA COLLEGE OF TECHNOLOGY (1993) 6 NWLR, PT 300, 526 and ELUKPO V KADUNA STATE DEVELOPMENT & PROPERTY CO LTD (2017) LPELR – 43185 (CA).
The right to a fair hearing is a very essential right for a person to secure justice. This is why the denial of the right to fair hearing in any proceedings by a Court would render such proceedings a nullity. NEWSWATCH COMMUNICATIONS LTD V ATTA (2006) 12 NWLR, PT 993, 144. Fair hearing is an embodiment of the principle

of natural justice. Natural justice comprises two main principles: Audi Alteram Partem Rule and Freedom from bias. As I pointed out earlier, the concept of fair hearing assumes different nomenclatures. However, to constitute fair hearing, whether before the regular Courts or tribunals and boards of inquiry, a person accused of a crime should:
1) know what is alleged against him
2) be present when every evidence against him is tendered and
3) be given a fair opportunity to correct or contradict such evidence. See ADENIRAN V NEPA (2002) 14 NWLR PT 786, 30.
A challenge to the infringement of the right to fair can take many forms. It could be failure to issue hearing notice to a litigant or it could like the instant case be failure to accord the appellant opportunity to cross examine a witness. This comes under the third subhead, failure to give fair opportunity to correct or contradict such evidence. Since cross examination is essentially to test the veracity of a witness the issue can be subsumed under this subhead. The question to pause and ask is whether indeed the prosecution prevented the appellant from cross examining the witness, PW5.

The appellant’s counsel compiled or caused to be compiled the record of this appeal. Learned counsel never referred this Court to any page where or part of the proceedings where he applied, sought to or got up to cross examine PW5 and he was denied such right. This is the whole basis of their complaint. To be legitimate it should be born out of the records.

I have taken a close look at the record and I find page 429 thereof as the record of where the ruling titled ‘Judgment’ in the trial within trial is contained. For clarity I reproduce a small portion of it:
“Court:- This is my judgment is (sic) Trial within Trial.
Nwodo:- We are grateful. This is our case.
Sigismund:- We are grateful
Sigismund:- We shall be asking for a date for our defence.
Court:- Matter adjourned to 10th April, 2018 for definite defence.”

There is nothing in these records which show or confirm that the appellant’s counsel wanted to or perhaps even knew that he had a right to cross examine PW5 at the conclusion of his evidence in chief. Learned counsel ought to have indicated his intention to cross

examine the witness at the conclusion of the ruling in the Trial within Trial. But instead he asked for a date for defence after the prosecution closed their case.
It must be pointed out very clearly that there is a world of difference between the duty of the Court to create the atmosphere or environment for a fair hearing of a case and the responsibility of the litigant to take advantage of this atmosphere or environment. Niki Tobi, JSC put this very profoundly when he held in the case of NEWSWATCH COMMUNICATIONS LTD V ATTAH (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. THAT IS NOT FAIR TO THE COURT AND COUNSEL MUST NOT INSTIGATE HIS CLIENT TO ACCUSE THE COURT OF DENYING HIM FAIR HEARING.” (Emphasis Provided)

This valuable wisdom of his Lordship has put a lid on this issue. I hold therefore that the learned counsel was misconceived when he thought that the Court had a duty to make sure that he took advantage of the atmosphere or environment created for fair hearing in the Court. The learned counsel made a choice not to cross examine PW5 when he constructively waived this right by asking for a date for defence. He is not on record as asking for an opportunity to cross examine and was denied such an opportunity. Counsel cannot now be heard to say that he was denied fair hearing.

Counsel did make some allusions in his submissions under this issue some of deserve consideration. The first is an attempt to impeach the record of the Court. The appellant transmitted or caused to be transmitted the record for this appeal. By ORDER 8(6) of the Rules of Court, he has the right to file additional records if he so desires. The transmitted record was certified by the registrar of the court below as the correct record of that Court. If the appellant wishes to challenge the record of the trial Court he has a duty to produce the records he wants to challenge before this Court.

This is the position of the apex Court in the cases of OBIAMALU & ORS V NWOSU & ORS (1973) ANLR, 83 and AJAYI & ANOR V OMOROGBE (1993) 6 NWLR, PT 301, 512. It is not open to the appellant to make an allegation at large. Impeaching the records of the Court is a very serious issue. I do not see that the appellant appreciates the gravity of the allegation he is making when all he did was to get his clerk in chambers to swear to some affidavit which if push comes to shove he will be unable to prove. In my view such an action bothers on professional immaturity. A counsel should not make any allegation especially against a judicial officer that he is not able to prove. I need say no more on this.

Counsel also alluded to the effect of the testimony of a witness who was not subjected to cross examination. The settled principle of law is that a Court should not act on the evidence of a witness who cannot be produced or located for cross examination;
AL-MUSTAPHA V STATE (2013) 17 NWLR, PT 1383, 350 and UMUKORO V STATE (2018) LPELR – 46159 (CA). My simple response to this contention is that the cited cases are not on all fours with this

case. In those cases, with the greatest respect to learned counsel, the witness after giving evidence in chief cannot be traced or produced for a variety of reasons. In the instant case the prosecution had closed its case and the defence opened their case by asking for a date for defence. The trial Court gave a date for definite defence. When the case next came up, the defence counsel attempted a plea bargain for the appellant and his codefendants. It was only after the failure of the plea bargain that counsel who probably not ready or interested in defending his clients started to make complaints about cross examination of PW5. Even at that his application was incompetent. Counsel by not first asking for the prosecution’s case which had been closed to be reopened for him to cross examine but asked for a date for defence had constructively waived his right to cross examine PW5. Having closed the case for the prosecution even if only constructively by giving the defence a date to open their defence, the learned trial judge had become incompetent and lacked any power to allow the defence counsel cross examine PW5. To do so competently counsel has to apply

either orally or in writing for his case to be closed and the case of the prosecution to be reopened to enable proper and valid cross examination. There is nowhere on record that shows where counsel has made such an application. If all he did was simply to be a nuisance to the Court by stating that he wanted to cross examine PW5 without following these required procedures of closing and opening his case and that of the prosecution then I hold that the learned trial judge rightly ignored him since to do otherwise may result to his being accused of bias or going into the arena. The contention of learned counsel on this issue is therefore of no moment. I discountenance it.

I must end this issue (1) by adopting the observation of ARIWOOLA JSC in OKANLAWON V STATE (2015) 17 NWLR, PT 1489, 445 that it has become a fad for litigants to resort to their right to fair hearing on appeal as if it is a magic wand to cure all inadequacies at the trial, even self-generated. The fair hearing principle enshrined in our constitution is designed to protect all the parties in litigation but not to be used as a tool in the hands of litigants who have been proven guilty on

credible evidence by the Court. This principle must be based on the facts of each case. I find that in the instant case the facts are completely helpless as they cannot affect the application of this principle in favour of the appellant. I resolve this issue against the appellant.

Issue 2 is whether the prosecution proved their case against the appellant beyond reasonable doubt. The plank of the argument of the appellant’s counsel under this issue as I understand it is that firstly there is no direct evidence led by the prosecution that ties the appellant to this offence. Counsel relied on the testimonies of PW1, PW2, PW3, PW4 and DW1-DW8 in aid to this submission. He contended that the testimonies of the defendants made reference only to one ‘Alhaji’ whom the prosecution has not made out from evidence to be one and the same person with the appellant. It is clear from the testimonies of PW1, PW2, PW3 and PW4, all employees of the nominal complainant company that none of them could identify any of the robbers. PW1 and PW2 were the security guards on duty on the night of the robbery. Their evidence was clear and unambiguous and to the

effect that the robbery took place very late at night and into the early hours of the morning. They were both categorical that there was no light and they could not see the robbers well. The question of identification of the appellant or conducting an identification parade as alluded to by counsel to the appellant merely beggars the question.

In the instant case the prosecution relied mainly on the confessional statement of the appellant in proof of its case against him. Confessional statements have often been said to be the best form of evidence.

Several authorities have made this repeatedly clear but MUHAMMAD, JCS in ADIO V STATE (1986) 5 SC, 194 AT 219-220 stated this quite profoundly and impactfully when he opined as follows:-
“A case can be proved by direct oral evidence if the testimony of the witness who saw and heard them are believed, there will be proof beyond reasonable doubt………the local case of JOSEPH OGUNBADEJO V THE QUEEN (1954) 14 WACA 458 (otherwise known as APALARE’S case) is an excellent example of proof beyond reasonable doubt based purely on inference from Circumstantial Evidence BUT FAR ABOVE THESE TWO METHODS OF PROOF IS VOLUNTARY CONFESSION OF GUILT BY AN ACCUSED PERSON IF IT IS DIRECT AND POSITIVE AND SATISFACTORILY PROVED SHOULD OCCUPY THE HIGHEST PLACE OF AUTHENTICITY WHEN IT COMES TO PROOF BEYOND REASONABLE DOUBT. THIS IS WHY A CONFESSION BY ITSELF IS SUFFICIENT WITHOUT FURTHER CONSIDERATION TO WARRANT? A CONVICTION unless the trial Court is satisfied that the case has not been proved beyond reasonable doubt.” (Emphasis provided)
It is clear from the judgment quoted above that a Court can convict based on the confessional

statement of an accused person. Such a confession must be direct, positive, satisfactorily proved and above all voluntary.

Counsel challenges Exhibit D, the confessional statement of the appellant on many grounds. Firstly, he still challenges the voluntariness of the confession of the trial within trial that settled the issue of voluntariness. The learned trial judge at the end of the trial within trial found that the confessional statement was voluntarily made and admitted it in evidence as Exhibit D. The appellant did not appeal against this ruling. He is deemed to have admitted the outcome of the said ruling. The issue of the voluntariness of the confessional statement of the appellant can therefore no longer be a live issue in this appeal. The learned counsel to the appellant in the circumstances is estopped from reopening this issue. The submissions on the issue by counsel are accordingly discountenanced.

inadmissible. What the Court is expected to do is to test the veracity and truthfulness of the statement in the light of other credible evidence to determine whether it is consistent with other facts proved and ascertained. The settled position of the law is that the Court can convict on a retracted confessional statement if it is satisfied of its voluntariness. See AKPAN V THE STATE (2000) 8 WRN 130; STATE V ISAH (2012) 10 NWLR PT 1327, 629 and OMOLAYE V STATE (2017) LPELR – 43632 (CA).

The learned trial judge from the trial within trial satisfied himself of the voluntariness of the confessional statement. He also believed the testimony of PW5 which he said corroborated the fact of the ownership of the truck that was used in conveying the stolen items. The appellant explained very clearly his role in the crime when he stated that he does not follow the gang members to rob but only used to give them the truck and after the robbery his share of the proceeds of the robbery will be given to him. He even gave details of how much he got from the two earlier operations as N150,000 and N390,000 respectively. There is also the evidence of DW5 who testified

that the appellant asked him to get a driver for the truck and he got DW9. It should be remembered that apart from the confessional statement this case was based largely on circumstantial evidence. It was by pure providence that the 8th defendant, Sunday Aniekan mysteriously dropped his wallet at the scene of crime, otherwise this case may have remained an unsolved mystery. The defendants dispersed to different places from Akwa Ibom to Delta to Edo etc. The long arm of the law may never have caught up with them. It is this chain of circumstances that led to the arrest of all the defendants. This link by itself constitutes circumstances from which inferences can be made to tie the appellant to this crime as rightly done by the learned trial judge.

Counsel also raised the issue of the failure of a superior police officer to countersign the confessional statement. There is no law in Nigeria that requires that an accused person be taken along with his confessional statement to a superior police officer who reads and interprets the statement to him and he confirms it to be his voluntary statement. However, such practice which exists in Nigeria has been highly

commended and is regarded as a wise one which gives extra assurance of fairness to the accused person and the voluntariness of his confession. It is important to point out though that confessional statements not so treated should not be viewed with suspicicion: DIBIE V STATE (2007) 9 NWLR PT 1038, 30 and OKASHETU V STATE (2016) 14 NWLR, PT 1534, 126. The overriding consideration as set out by the case of SOLOLA V STATE (2005) 11 NWLR PT 937, 460 is that a free and voluntary confession which is direct, positive and properly proved whether retracted or not on is sufficient to sustain a conviction without any corroborating evidence so long as the Court is satisfied with its truth. I am persuaded by the evidence on record that the learned trial judge satisfied himself that Exhibit D was direct, positive and properly proved. And his lordship corroborated the confession even though he didn’t have to with the testimony of PW5, DW5 and drew inferences from the totality of the evidence led by the prosecution to come to the inevitable finding of guilt against the appellant. I therefore resolve this issue in favour of the respondent.

The third issue is on

evaluation of evidence. This issue overlaps with issue 2 and should have been treated or taken together with issue 2. No wonder the submissions of counsel under this issue are largely repetitions of his arguments under issue 2. While I would resist the temptation to be drawn into the determination of issues already resolved under a guise of being a different issue, suffice it to state that the learned trial judge properly extensively, exhaustively and adequately evaluated the totality of the evidence adduced by the prosecution. This is why he took all the eight defendants one after the other and was able to distill those for whom evidence was sufficient to ground a conviction and those for who it was not. This was also the reason why his lordship was able to find that the charges of armed robbery and causing grievous bodily harm were not proved against all the defendants and discharged and acquitted them.

Besides the apex Court has firmly affirmed the law that findings of fact, which is part of evaluation of evidence is within the exclusive preserve of the trial Court who saw and heard the witnesses testify and this Court as an appellate Court is loath to

interfere with such findings unless shown to be perverse. This position was restated very aptly by Eko, JSC in KEKONG V STATE (2017) 18 NWLR, PT 1596,108 when he held:
“The law is settled that on issues of fact, evaluation of evidence and the credibility of witnesses are matters within the exclusive competence and domain of the trial Court. See Chief Frank Ebba V Chief Warri Ogodo & Anor (1984) 12 SC 133 at 176; (1984) 1 SCNLR 372; Daniel Sugh V The State (1988) 2 NWLR (pt. 77) 475. Where the trial Court finds a witness credible and believable, unless the appellant shows evidence that renders that stance perverse the appellate Court rarely interferes with that finding. In Daniel Sugh V The State (supra) Wali, JSC, restating the law on this held that the belief can only be questioned on appeal if the belief is obviously against the logical drift of the evidence considered as a whole or against the impact of the wave of the probabilities disclosed by the evidence. See also Oputa, JSC in Adelumola V The State (1988) 1 NWLR (pt. 73) 682 at 690.”
The appellant has not shown any perversity in the findings of the trial Court that convicted

him and discharged and acquitted the 3rd and 6th defendants. I therefore discountenance the appellant’s unfounded complaints challenging these findings.
Going through the judgment of his lordship in the Court below reveals a judicial officer who has tediously labored to ensure that justice was done to the defendants. If he is not applauded for a job well done, surely he should not be vilified. This is especially so in the face of the irrelevant pieces of evidence that counsel is using to ground his subjective argument against proper evaluation of evidence and allegation of bias.

It was never the case of the prosecution that the appellant was in Abuja and participated in the robbery of the nominal complainant’s goods. It is clear from Exhibit D, the confessional statement of the appellant that they had a gang that engaged in the commission of theft of goods and share the proceeds. They are caught up with the doctrine of common intention. This doctrine presupposes that where two or more persons intentionally do a thing jointly, it is the same as if each had done it individually. Each person is not only liable for his own acts but also for

the sum of the acts of his fellow conspirators in furtherance of the common intention. In other words where an act is carried out in concert in the execution of a common intention, it does not matter which of the persons did what. See: BUJE V STATE (2009) 18 NWLR PT, 1172, 140; OYELEYE V STATE (2013) LPELR – 20693 (CA), AIKHADUEKI V THE STATE (2013) LPELR – 20806 (SC) and EGWUMI V THE STATE(2013) LPELR -2009 (SC).

Common intention may be inferred from circumstances described in the evidence led before the Court and need not be provable only by the express agreement of the accused persons.OGBU & ANOR V STATE (2007) 5 NWLR, PT 1028, 635, OMOTOLA V STATE (2009) 8 ACLR 29 AT 171 and ESSIEN V STATE (2018) LPELR – 44035 (CA).

I see no merit in the submissions of counsel on this issue. I resolve it in favour of the respondent.

The final issue is whether the trial judge exhibited bias and was selective in sentencing the defendants. I have gone through the arguments of counsel on this issue. I find them not only peasantry but highly uncharitable and unbecoming of a legal practitioner worthy of any consideration. An allegation of

bias should never be made so flippantly especially where the allegation cannot be proved as in this case. In answer to this issue as contended by counsel I wish only to leave him with the wise and educative words of my learned brother, Saulawa, JCA in OKON V STATE (2017) LPELR – 43612 (CA) and hope it educates him:-
“Having amply considered the evidence adduced at the trial, I am of the considered view that the discharge of the 2nd Accused person must not necessarily lead to the discharge of the appellant against whom the charge had been proven beyond reasonable doubt. See KASA V STATE (2014) 10 ACLR 265 @ 287 LINES 30-34. As aptly highlighted by the Court below in the vexed judgment, the defence of the appellant at the trial was different from that of the 2nd Accused person.”
There is no bias proved by learned counsel to the appellant. I am satisfied from a calm and careful consideration of the evidence on record that this allegation of bias is unfounded and outright, reckless. I therefore also resolve this issue in favour of the respondent.

In concluding this judgment I find it apt to end with the confirming words of Ngwuta,

JSC in the case of BILLE V STATE (SUPRA) thus:
“There are three ways of proving a crime in Court.
These are:
(1) Direct evidence
(2) confessional statement/statements made by the accused and
(3) circumstantial evidence. See Adeyemo v State (2015) 4 SC (Pt 11) 112 At 129 Paras 30-35.
IF THE ACCUSED PLEADS GUILTY AND ADMITS THE FACTS AS LAID THE PROSECUTION HAS NO DUTY TO PROVE WHAT HAS BEEN ADMITTED.” (Emphasis provided)

On the basis of this authority and from all my findings in this judgment and having resolved all the issues against the appellant, I find that this appeal is devoid of merit. It fails and I accordingly dismiss it.

Consequently, the judgment of Hon. Justice Y. Hallilu of the High Court of the FCT sitting at Maitama and delivered on the 14th day of June, 2019 which convicted the appellant for conspiracy to commit robbery and robbery contrary to Section 1 of the Robbery and Firearm (Special Provision) Act and sentenced him to 20 years imprisonment is hereby affirmed.

PETER OLABISI IGE J.C.A.: I have read the lead judgment delivered by my learned brother

PATRICIA AJUMA MAHMOUD, JCA in APPEAL NO. CA/A/726C/2019.

I agree with the reasoning and conclusion therein.

FOLASHADE AYODEJI OJO, J.C.A.: I had the privilege of reading before now draft of the judgment just delivered by my learned brother, PATRICIA AJUMA MAHMOUD, JCA. His lordship has admirably considered and resolved all pertinent issues for determination in this appeal. The shows dearly that the trial Judge was alive to his responsibility and dutifully evaluated all evidence before him.

I agree with my learned brother that this appeal is completely devoid of merit and should be dismissed. It is accordingly dismissed by I also affirm the Judgment of the trial Court.

Appearances:

MS Esther Igoche For Appellant(s)

MR Stanley Nwodo For Respondent(s)