MOHAMMED ADAMU V. THE STATE
(2013)LCN/5981(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 27th day of February, 2013
CA/J/214C/2011
RATIO
FAIR HEARING: WHEN IS A HEARING SAID TO BE FAIR
A hearing is said to be fair when the adjudicator or panel hears all sides not only as to the main subject of the case but also as to all material issues before coming to a decision which may be prejudicial to any party in the case. The adjudicator or panel must give equal treatment, opportunity and consideration to all sides. The proceedings must be held in public and all concerned must have access to and be informed of the hearing venue. Hence, with respect to every material decision in the case, justice must not only be done but must manifestly and undoubtedly be seen to have been done. In Ndukauba v. Kolomo (2005) 4 NWLR (Pt.915) p.411 at 429-430, paras. H – B, the Supreme Court per Oguntade, JSC, identified the following as indices of fair hearing:
i. A party is entitled to a counsel of his choice.
ii. A party must be afforded the opportunity to call all necessary witnesses in support of his case.
iii. A party by himself or counsel must have the opportunity to cross-examine or otherwise challenge the evidence of witnesses called by his adversary.
iv. At the close of the case in accordance with the relevant court rules, a party must have the same right as has been given to his adversary to offer by his counsel, the final address on the law in support of his case.PER OYEBISI FOLAYEMI OMOLEYE J.C.A.
FAIR HEARING: THE FEATURES OF FAIR HEARING
In the case of Njiokwuemeni v. Ochei (2004) 15 NWLR (Pt. 895) p.196 at p. 241, paras. D-G., the features of fair hearing that each party must be allowed access to are as follows:
i. To be present all through the proceedings, to hear all the evidence against him/her.
ii. To cross-examine or otherwise confront or contradict all the witnesses who testified against him/her.
iii. To have read before him/her all the documents tendered in evidence at the hearing
iv. To have disclosed to him/her the nature of all relevant material evidence, including documentary evidence prejudicial to him/her, except in recognized exceptions.
v. To know the case he/she has to meet at the hearing and have adequate opportunity to prepare for his defence.
vi. To give evidence by himself/herself, call witnesses, if he/she likes, and make oral submission either personally or through the counsel of his/her choice.PER OYEBISI FOLAYEMI OMOLEYE J.C.A.
FAIR HEARING: THE CORRECTNESS OF THE DECISION BECOMES IRRELEVANT WHEN FAIR HEARING HAS BEEN DENIED
Therefore, where a party has been denied fair hearing, the correctness or otherwise of the decision becomes irrelevant, as the entire proceedings are regarded a nullity and must be set aside. In case of: Udo v. Cross River State Newspaper Corporation (2001) 14 NWLR (Pt.732) p. 116 at p.151 paras D – E, the court held that: “The question is not whether injustice has been done because of lack of fair hearing but whether a party entitled to be heard before deciding had in fact been given an opportunity of hearing. PER OYEBISI FOLAYEMI OMOLEYE J.C.A.
FAIR HEARING: EFFECT OF A DECISION LACKING FAIR HEARING
Once an appellate court comes to the conclusion that a party who was entitled to be heard before a decision was reached, but was not given the opportunity of a hearing, the decision is liable to be set aside”. See also the case of: Zideeh v. R.S.C.S.C. (2007) 3 NWLR (Pt.1022) p. 554 at 568 paras. C – F, where Mohammed, JSC, stated that:
The right of a person to a fair hearing is so fundamental to our concept of justice that it can neither be waived nor taken away by a statute, whether expressly or by implication. Fair hearing is not only a common law right but also constitutional right, Thus by virtue of section 33(1) of the Constitution of the Federal Republic of Nigeria, 1979, relied upon in the present case, in the determination of his civil rights and obligation, a person is entitled to a fair hearing within a reasonable time by a court or other tribunal established by law. The requirement of this provision of the Constitution entails the observance of the twin pillars of the rules of natural justice, namely audi alteram partem and nemo judex in causa sua.PER OYEBISI FOLAYEMI OMOLEYE J.C.A.
JUSTICES:
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
OYEBISI FOLAYEMI OMOLEYE Justice of The Court of Appeal of Nigeria
JUMMAI HANNATU SANKEY Justice of The Court of Appeal of Nigeria
Between
MOHAMMED ADAMU – Appellant(s)
AND
THE STATE – Respondent(s)
OYEBISI FOLAYEMI OMOLEYE J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Yobe State, in Damaturu Judicial Division, sitting at Potiskum, (hereinafter referred to as the trial Court), delivered on 20th November, 2006. The Appellant was convicted of the offence of armed robbery and sentenced to death by hanging.
The facts of this matter are that, the Appellant was arraigned before the trial Court for robbing while armed with a machete, one Adamu Abdu, of the sum of four hundred naira, clothing and food items, on 4th December, 2002, contrary to Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act. The Appellant pleaded not guilty to the charge. The prosecution called two (2) witnesses to prove the charge preferred against the Appellant, who testified in his own defence, but called no witness. At the conclusion of the trial, the Appellant having being found guilty of robbing Adamu Abdul while armed with a matchete, was sentenced to death by hanging.
Dissatisfied with the conviction and sentence, the Appellant appealed to this Court, “vide” a notice of appeal which was deemed properly filed on 22nd March, 2012, containing four (4) grounds of appeal in addition to the omnibus ground and issues were distilled for determination. Both sides to this matter filed and exchanged their respective briefs of argument. The Appellant filed his brief of argument on 22nd March, 2012 and in it, two issues were formulated for determination, to wit:
1. Whether or not the Appellant, in view of the entire circumstances of this case, had a fair hearing and fair trial?
2. Whether or not the prosecution proved its case against the Appellant, beyond reasonable doubt?
The Respondent also filed a brief of argument on 13th April, 2012 and in it, formulated five (5) issues for the determination of the appeal, thus:
1. Whether or not having regard to the totality of the evidence adduced at the trial Court, the prosecution proved its case against the Appellant beyond reasonable doubt?
2. Whether or not the differences in suit numbers as contained in the record of proceedings of the trial Court have in any way denied the Appellant his constitutional right to fair hearing and occasioned a miscarriage of justice that warrants the setting aside of the judgment of the trial Court?
3. Whether or not there are contradictions in the evidence of the prosecution?
4. Whether or not the failure to record the statement of the Appellant (exhibit ‘A) in the language the Appellant made it, renders the statement inadmissible in evidence?
5. Whether or not having in mind the manner in which the defence of the Appellant was conducted by his counsel at the trial Court, denied him the right to fair hearing and thereby occasioned miscarriage of justice?
The two issues formulated in the Appellant’s brief of argument are concise, apt and adequate for the resolution of this appeal, therefore I am also adopting them.
ISSUE ONE
Whether or not the Appellant, in view of the entire circumstances of this case, had a fair hearing and fair trial?
One of the contentions of the learned counsel for the Appellant, is that, the Appellant was not given a fair hearing and fair trial, contrary to the provisions of Section 36 (1) & (5) of the 1999 Constitution. In counsel’s opinion, the Appellant was tried, convicted and sentenced under more than one suit number. The Appellant stated that for his defence, he briefed a senior counsel, Mr. U. M. Abdulrahman who in turn assigned his case to a very junior and inexperienced counsel, who were Youth Corpers in his chambers. The said junior counsel because of their limited professional experience were said not to be conversant with procedure in a criminal trial. Hence, they did not apply for a trial-within-trial, even when the complaint of Appellant was that, he was tortured and forced into signing the alleged confessional statement, exhibit A. The said confessional statement was written in English Language rather than, Fulfulde, that is, Fulani Language, the language of the Appellant, who is not literate. The Appellant’s learned counsel therefore submitted that, the said errors were fatal to the case of the prosecution. He urged this Court to expunge the alleged confessional statement, exhibit A. He rested his position on the cases of:
(1) Udofia v. The State (1988) 3 NWLR (Pt.84) p. 533; (2) Ahmed v. The State (1999) 7 NWLR (Pt.612) p.641, at pgs. 684 – 685, paras, G – C and (3) Sabi v. The State (2011) 14 NWLR (Pt.1268) p.421, at pgs. 437 – 438, paras, B – B and p. 439, paras. E – G.
Responding to the position taken for the Appellant, the Respondent’s learned counsel, argued that, in regard to the suit number under which the Appellant was charged, tried, convicted and sentenced, it is patent that the errors were merely typographical which did not jeopardise the trial of the Appellant. What is more, the learned counsel for the Appellant did not point out the alleged errors at the trial Court, rather, the Appellant was made to submit to the so-called irregularity. The Appellant was not misled especially regarding the charge preferred against him and he did not suffer any injustice as a result of this. On this the learned counsel relied on the case of: Buraimoh Ajayi v. Zaria Native Authority (1963) 1 All NLR p. 169. Further on this point, the learned counsel for the Respondent argued that the onus that the lapses resulted in a miscarriage of justice to the Appellant is on him and he did not discharge the onus. On this, reference was made to the case of: Durwode v. The State (2001) 2 ACCR p.503. It was further contended that, the charge was read and explained to the Appellant before his plea was taken. He was represented by a legal practitioner of his choice, throughout the proceedings at the trial Court. That in all of these, the Appellant’s constitutional right to fair hearing trial was not in any way violated.
The “gravamen” of the Appellant’s complaint under this issue, using my own words is that, there was non-compliance with the relevant procedural law and the Constitution, at his trial. I have already set out earlier on in this judgment, the factual details from the point of view of the Appellant, the reaction of the Respondent and my verification of the said facts. I shall now juxtapose the said facts with the applicable procedural law and the relevant provisions of the Constitution, that is, Section 215 of the Criminal Procedure Act, which is “in pari materia” with Sections 187 and 188 of the Criminal Procedure Law of Yobe State and Section 36 of the 1999 Constitution.
The said Sections 187(1) and (2) and 188 of the Criminal Procedure Code of Yobe State, 1994, provide thus:
187.(1) When the High Court is ready to commence the trial the accused shall appear or be brought before it and the charge shall be read out in court and explained to him and he shall be asked whether he is guilty or not guilty of the offence or offences charged.
(2) If the accused pleads guilty the plea shall be recorded and he may in the discretion of the court be convicted thereon unless the offence charged is punishable with death when the presiding judge shall enter a plea of not guilty on behalf of the accused.
188. If the accused pleads not guilty or makes no plea or refuses to plead or if the judge enters a plea of not guilty on behalf of the accused, the court shall proceed to try the case.
Section 36 of the 1999 Constitution provides as follows:
36.-(1) In the determination of his civil right and obligation, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a court or other tribunal established by law and constituted in such manner as to secure its independence and impartiality.
(2). Without prejudice to the foregoing provisions of this section, a law shall not be invalidated by reason only that it confers on any government or authority power to determine question arising in the administration of a law that affects or may affect the civil rights and obligations of any person if such law-
(a) provides for an opportunity for the person whose rights and obligations may be affected to make representations to the administering authority before that authority makes the decision affecting that person: and
(b) contains no provision making the determination of the administering authority final and conclusive.
(3.) The proceedings of a court or the proceedings of any tribunal relating to the matters mentioned in subsection (1) of this section (including the announcement of decisions of the court or tribunal) shall be held in public.
(4) Whenever any person is charged with a criminal offence, he shall unless the charge is withdrawn be entitled to a fair hearing in public within a reasonable time by court or tribunal:
Provided that-
(a) a court or such a tribunal may exclude from its proceedings persons other than parties thereto or their legal practitioners in the interest of defence, public safety, public order, public morality, the welfare of persons who have not attained the age of eighteen years, the protection of the private lives of the parties or to such extent as it may consider necessary by reason of special circumstances in which publicity would be contrary to the interests of justice;
(b) if in any proceedings before a court or such a tribunal a Minister of the Government of the Federation or a Commissioner of the Government of a State satisfies the court or tribunal that it would not be in the public interest for any matter to be publicly disclosed, the court or tribunal shall make arrangements for evidence relating to that matter to be heard in private and shall take such other action as may be necessary or expedient to prevent the disclosure of the matter.
(5) Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty;
Provided that nothing in this section shall invalidate any law by reason only that the law imposes upon any such person the burden of proving particular facts.
(6) Every person who is charged with a criminal offence shall be entitled to-
(a) to be informed promptly in the language that he understands in detail of the nature of the offence;
(b) to be given adequate time and facilities for the preparation of the defence;
(c) to defend himself in person or by a legal practitioner of his choice;
(d) to examine in person or by his legal practitioner the witnesses called by the prosecution before any court or tribunal and obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court or the same conditions as those applying to the witnesses called by the prosecution; and
(e) have without payment the assistance of an interpreter if he cannot understand the language used at the trial of the offence.
(7) When any person is tried for any criminal offence, the court shall keep a record of the proceedings and the accused person or any person authorized by him in that behalf shall be entitled to obtain copies of the judgment in the case within seven days of the conclusion of the case.
(8) No person shall be held to be guilty of a criminal offence on account of any act or omission that did not, at the time it took place, constitute such an offence, and no penalty shall be imposed for any criminal offence heavier than the penalty in force at the time the offence was committed.
(9) No person who shows that he has been tried by any court of competent jurisdiction or tribunal for a criminal offence and either convicted or acquitted shall again be tried for that offence or for a criminal offence having the same ingredients as that offence save upon the order of a superior court.
(10) No person who shows that he has been pardoned for a criminal offence shall again be tried for that offence.
(11) No person who is tried for a criminal offence shall be compelled to give evidence at the trial.
(12) Subject as otherwise provided by this constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefore is prescribed in a written law: and in this subsection, a written law refers to an Act instrument under the provisions of a law. (The underlining is supplied by me for emphasis)
A hearing is said to be fair when the adjudicator or panel hears all sides not only as to the main subject of the case but also as to all material issues before coming to a decision which may be prejudicial to any party in the case. The adjudicator or panel must give equal treatment, opportunity and consideration to all sides. The proceedings must be held in public and all concerned must have access to and be informed of the hearing venue. Hence, with respect to every material decision in the case, justice must not only be done but must manifestly and undoubtedly be seen to have been done. In Ndukauba v. Kolomo (2005) 4 NWLR (Pt.915) p.411 at 429-430, paras. H – B, the Supreme Court per Oguntade, JSC, identified the following as indices of fair hearing:
i. A party is entitled to a counsel of his choice.
ii. A party must be afforded the opportunity to call all necessary witnesses in support of his case.
iii. A party by himself or counsel must have the opportunity to cross-examine or otherwise challenge the evidence of witnesses called by his adversary.
iv. At the close of the case in accordance with the relevant court rules, a party must have the same right as has been given to his adversary to offer by his counsel, the final address on the law in support of his case.
In the case of Njiokwuemeni v. Ochei (2004) 15 NWLR (Pt. 895) p.196 at p. 241, paras. D-G., the features of fair hearing that each party must be allowed access to are as follows:
i. To be present all through the proceedings, to hear all the evidence against him/her.
ii. To cross-examine or otherwise confront or contradict all the witnesses who testified against him/her.
iii. To have read before him/her all the documents tendered in evidence at the hearing
iv. To have disclosed to him/her the nature of all relevant material evidence, including documentary evidence prejudicial to him/her, except in recognized exceptions.
v. To know the case he/she has to meet at the hearing and have adequate opportunity to prepare for his defence.
vi. To give evidence by himself/herself, call witnesses, if he/she likes, and make oral submission either personally or through the counsel of his/her choice.
Therefore, where a party has been denied fair hearing, the correctness or otherwise of the decision becomes irrelevant, as the entire proceedings are regarded a nullity and must be set aside. In case of: Udo v. Cross River State Newspaper Corporation (2001) 14 NWLR (Pt.732) p. 116 at p.151 paras D – E, the court held that: “The question is not whether injustice has been done because of lack of fair hearing but whether a party entitled to be heard before deciding had in fact been given an opportunity of hearing. Once an appellate court comes to the conclusion that a party who was entitled to be heard before a decision was reached, but was not given the opportunity of a hearing, the decision is liable to be set aside”. See also the case of: Zideeh v. R.S.C.S.C. (2007) 3 NWLR (Pt.1022) p. 554 at 568 paras. C – F, where Mohammed, JSC, stated that:
The right of a person to a fair hearing is so fundamental to our concept of justice that it can neither be waived nor taken away by a statute, whether expressly or by implication. Fair hearing is not only a common law right but also constitutional right, Thus by virtue of section 33(1) of the Constitution of the Federal Republic of Nigeria, 1979, relied upon in the present case, in the determination of his civil rights and obligation, a person is entitled to a fair hearing within a reasonable time by a court or other tribunal established by law. The requirement of this provision of the Constitution entails the observance of the twin pillars of the rules of natural justice, namely audi alteram partem and nemo judex in causa sua.
On this principle of law, see also the cases of: (1) Ntukidem v. Oko (1986) 5 NWLR (Pt.45) p. 909; (2) U.N.T.H.M.B. v. Nnoli (1994) 8 NWLR (Pt.363) p. 376 and (3) Bamgboye v. University of Ilorin (1999) 10 NWLR (Pt.622) p.290.
In the case of: Effiom v. The State (1995) 1 NWLR (Pt.373) p.507, the Supreme Court held that, a fair hearing must involve a fair trial, and a fair trial of a case consists of the whole hearing. The true test of fair hearing is infact the impression of a reasonable person who was present at the trial, whether from his observation, justice has been done in the case. In the case of NEPA v. Eze (2001) 3 NWLR (Pt. 701) p, 606 at pgs. 618-619, paras. H-C, Opene, JCA, succinctly restated the age-long common law principle of fair hearing in the following words:
The right of fair hearing is entrenched in section 36 (1) of the 1999 Constitution, where a party is entitled to be heard before a decision is given in a case before the court, that party should be given an opportunity to be heard and present his case before the court. It is also a cardinal principle of our law that both sides in a case should be heard before the court arrives at its decision. The fundamental or sacrosanct nature of the right of fair hearing has been fully expounded in the case of Okonkwo v. Okonkwo (1998) 10 NWLR (Pt.57) p.554 at p. 550. It was
observed as follows:-
The rule of audi alteram partem, the obligation to hear the other side of a party in a dispute to be heard, is so basic and fundamental a principle of our adjudicatory system in the determination of disputes that it cannot be compromised on any ground.
A denial of the right of fair hearing completely vitiates the whole trial. It is pertinent to observe that the right of fair hearing is not a technical doctrine, it is one of substance. It therefore follows that where there is a cry of the breach of a right of fair hearing, it is the duty of the court to examine the proceedings to ascertain whether there is such a breach.
In the case of: Rufai v. State (2001) 13 NWLR (Pt.731) p.718, the Supreme Court restated the guidelines on arraignment of an accused person and the taking of his Plea thus:
1. That the accused person to be tried shall be placed before the trial Court unfettered;
2. The charge shall be read and explained to him in the language he/she understands, to the satisfaction of the Court;
3. The accused person shall then be called upon to plead instantly to the charge and
4. The plea of the accused shall also be instantly recorded.
In essence, the relevant provision of the Criminal Procedure Law, is a reinforcement of Section 36 of the 1999 Constitution in order to guarantee the fair hearing and trial of an accused person.
I have painstakingly gone through the record of this appeal, the briefs and submissions of the learned counsel for the respective parties. Firstly, regarding the correct suit number under which the Appellant was charged, I agree with the Respondent’s learned counsel and even go further to remark that, the record of appeal is riddled with so many typographical errors not limited to the suit numbering only. Indeed the compilation of the record of the proceedings of the trial Court was shoddily done. However, as submitted by the Respondent’s learned counsel. I agree that nobody, including the Appellant and his counsel, was misled about the charge preferred against the Appellant. It was crystal clear to all and sundry that the Appellant was charged with, tried, convicted and sentenced for the offence of armed robbery contrary to the provision of Section 1 (2) (a) of the Robbery and Firearms Act. Again, in respect of exhibit A, the alleged confessional statement. I find that, the Investing Police Officer (IPO), PC Hamid Magaji who testified at trial as the second prosecution witness (PW2), after translating back and forth to the Appellant in Fulfude/Fulani Language, recorded the said statement in English Language and the Appellant who is not literate, thumb-printed same. This is quite visible at the bottom of page 2 of the said exhibit A. Also, in compliance with the popular practice and procedure of what is referred to as the Judge’s Rule, the IPO knowing that the statement volunteered by the Appellant is confessional in nature, got the attestation form in this regard and took both the Appellant, the confessional statement and the said form to a Superior Police Officer, an Assistant Superintendent of Police who attested to it by appending his signature. Suffice it to state here that, English Language being the “lingua franca” in Nigeria, it is the language with which the proceedings of all courts of records including the trial Court, are conducted. Before I proceed in this judgment, I want it noted at this juncture that, at the commencement of trial, the charge was actually read to the Appellant and his plea was taken in Fulani Language and the learned trial Judge recorded in English Language, see page 1 of the record of appeal, where he stated thus:
Court: Charge read out and explained to the accused and I am satisfied that he understands the charge brought, in detail and …
Accused now called again to plead to the charge.
Accused: I am not guilty to the offence charged.
Thereafter, interpretation was done in Fulani/Hausa Languages for the sake of the Appellant.
Now, regarding the caliber and competence of the counsel who defended the Appellant at the trial Court, apart from the counsel referred to as Youth Corpers, it is on record that Mr. U.M. Abdulrahman, the senior lawyer, equally participated in the trial, up to when judgment was delivered in the case. See the record of appeal at pages 8 to 30, particularly at page 13, where the Appellant testified as the first and only defence witness (DW1) and pages 22 to 24 containing the Appellant’s counsel’s written address. There is no doubt in my mind that the trial of the Appellant was properly conducted as required by law and practice, under the criminal justice system in this country, Nigeria.
What is more, Mr. U. M. Abdulrahman reserved the right if he so desired, with the leave of the trial Court, to recall the witnesses of the prosecution that had been taken by the so-called Youth Corpers lawyers. In any event, the trial Court a superior court of record manned by a learned Judge, would definitely have ensured that the Appellant had a proficient lawyer to represent him, even at the expense of government, if it was really true that, the lawyers engaged by the Appellant were not competent enough to handle the Appellant’s defence. I therefore disagree with the learned counsel for the Appellant that, the procedural and constitutional provisions, were violated at the trial of the Appellant. The printed record of appeal, in which the proceedings of the trial Court are embedded, does not show that the Appellant was not given fair hearing and trial. In other words, at the trial of the Appellant, none of the relevant provisions of the laws stated above was contravened, the Appellant, was given a fair hearing and trial, as touching on the procedure employed at his trial.
In sum, this issue is resolved against the Appellant and in favour of the Respondent.
ISSUE TWO
Whether or not the prosecution proved its case against the Appellant beyond reasonable doubt?
The learned counsel for the Appellant submitted that the Respondent/prosecution failed at the trial Court, to prove beyond reasonable doubt, the alleged offence of armed robbery, under Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act, with which the Appellant/accused person was charged. The learned counsel contended that, there were irreconcilable contradictions in the evidence of prosecution’s witnesses. For, the offence, alleged against the Appellant, took place about 10:00 pm, that is, at night and in the dark. The victim of the armed robbery, PW1 failed to immediately lodge a report of it to either the Police or indeed any member of his family. Rather, it was on the day after of the robbery after seeing the Appellant in a market place that he alerted some vigilantes, who assisted him in apprehending the Appellant and turned him over to the Police. In short, the learned counsel’s contention is that, the identity of the Appellant as the person who attacked PW1 was in doubt. Although PW1 in his oral testimony claimed to have known the Appellant before the day of the alleged attack, the Appellant stated that, PW1 is unknown to him, which fact the Appellant lent credence to. According to learned counsel, the issue of identification of the Appellant remained unsolved. For, PW1 failed to give the description of the Appellant, for instance, he did not tell of his built and/or his voice, having asserted that the Appellant was known to him long before that fateful night. He failed to state how he was able to recognise the Appellant in the dark, the night of the incident. On this, he referred to the cases of: (1) Ekpoisong v. The State (2009) 1 NWLR (Pt.1122) p.354 at pgs. 370 – 371 paras. H – C; (2) Onuoha v. The State 1 NWLR (Pt.748) p.406 at p.422, para. G. and p.424 and (3) Igbi v. The State (2002) 3 NWLR (Pt.648) p.169 at p.187, paras. F – G and p. 188, paras, A- B.
The learned counsel for the Respondent further submitted that, all the ingredients of the offence of armed robbery with which the Appellant was charged were proved beyond reasonable doubt. PW1, the victim of the robbery gave evidence as to how the Appellant attacked him with a matchete and robbed him of money, food and clothing items, on the night of the incident. That the Appellant actually inflicted matchete cut on his left leg. That, on the day after the attack, PW1 solicited the help of some vigilantes who assisted in apprehending and handing over the Appellant to the Police. He argued that the evidence of PW1 can be likened to that of an eye witness. That either the said eye witness account or indeed the confessional statement of the Appellant, exhibit A, was sufficient for grounding the conviction of the Appellant. He rested his contention on the cases of: (1) Saburi Adebayo v. Attorney – General of Ogun State (2008) 3 NCC p. 305 and (2) Stephen Oteki v. The State (2005) 4 ACLR p.402. Learned counsel submitted that there were no substantial material contradictions in the evidence of the prosecution witnesses, to warrant this Court to set aside the judgment of the trial Court. What is more, the Appellant’s counsel has not pointed to the specific areas of the alleged contradictions, to show especially how these have resulted in a miscarriage of justice to the Appellant. He relied on this legal principle, on the case of: John Ogbu v. The State (2007) 2 NCC p. 355.
It appears to me that the major grouse of the Appellant under this issue as alluded to by me above in this judgment, is that, the prosecution did not prove beyond reasonable doubt that, it was the Appellant who actually robbed PW1. According to the Appellant’s counsel, since the alleged robbery took place at night, in the words of PW1, it was impossible for PW1 to recognize his attacker. What is more, PW1 did not inform the Police or anyone immediately after the alleged attack to say, how he was able to recognize the Appellant, that night. I will therefore restrict myself, at least for now, to that point. This is because, if the point is resolved in favour of the Appellant’s position, it will become otiose to consider other point(s) under this head.
Basically, under the fundamental human rights provisions as contained in Chapter IV of the 1999 Constitution, as amended, among others, the right of citizens to fair hearing is guaranteed, see Section 36 of the said Constitution. Specifically, Section 36 sub-section 5 provides that, every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty. Hence, the law is settled beyond peradventure in our system of criminal justice administration, that, in criminal proceedings, the burden is always on the prosecution to establish the guilt of an accused person, beyond reasonable doubt. The prosecution will readily achieve this result by ensuring that all the necessary and vital ingredients of the offence(s) charged is/are proved by evidence. See the case of: Yongo v. C.O.P. (1992) NWLR (Pt.257) p. 36, per Kutigi, JSC (later CJN rtd.).This constitutionally guaranteed right is also in tandem with the provisions of Section 138 (1) of the Evidence Act, that, if the commission of a crime by a party to any proceedings is directly in issue, be it civil or criminal, the crime must be proved beyond reasonable doubt. In other words, although the preponderance of probability may constitute sufficient grounds for a verdict in civil proceedings, in criminal proceedings, the crime directly in issue must be proved beyond reasonable doubt. Therefore, if the judge has any doubt at all, he must give the accused person the benefit of that doubt, to mention but a few, see the cases of: (1) Folani v, Cole (1990) 2 NWLR (Pt. 133) p. 445, (2) In re: Otuedon (1995) 4 NWLR (Pt. 392) p. 655 and (3) Ariche v. State (1993) NWLR (Pt.302) p.752. The law is also sacrosanct that, the burden placed on the prosecution to prove a crime against an accused beyond reasonable doubt, is static, it never shifts, it remains on the prosecution until satisfactorily discharged. The courts, especially the apex court, that is, the Supreme Court and this Court have laid it down and it is iron-solid that, proof beyond reasonable doubt does not mean proof beyond any shadow of doubt. In the case of Dibie v. State (2007) 9 NWLR (Pt.1038) p.30, Tobi, JSC (rtd.), held as follows:
Once the proof drowns the presumption of innocence of the accused, the court is entitled to convict him, although there could exist shadows of doubt. The moment the proof by the prosecution renders the presumption of innocence on the part of the accused useless and pins him down as the owner of the “mens rea” or “actus reus” or both, the prosecution has discharged the burden placed on it by Section 138 (3) of the Evidence Act.
See also the cases of: (1) The State v. Azeez (2008) 4 SC p. 188; (2) Igabele v. State (2006) 4 NWLR (Pt.975) p.100; (3) Afolalu v. The State (2010) 16 NWLR (Pt.1220) p.584 and (4) Nwaturuocha v. The State (2011) LPELR – 8119.
Now, as regards the offence of armed robbery with which the Appellant was charged, arraigned, tried, convicted and sentenced, the ingredients of the said offence have been firmly established in a very long line of authorities, by the courts. These essential ingredients of the offence of armed robbery are as follows:
(a) That there was a robbery or series of robberies.
(b) That each robbery was an armed robbery.
(c) That the accused was the one or one of the persons who robbed.
All of the above ingredients conjunctively, must be proved beyond reasonable doubt. What this entails is that, the prosecution must produce enough evidence to justify, the offence with which the accused person is charged. Therefore, before the trial court came to the conclusion that the offence had been committed by the Appellant in the instant matter, the learned trial Judge ought to have looked for all the individual and collective ingredients of armed robbery and ascertain critically that the acts of the Appellant came within the confines of the offence.
As I noted earlier on in this judgment, it would appear that the first and second ingredients may have been established, that is, through the evidence of PW1, the victim of the alleged crime, there was a robbery and the robbery was carried out with a matchete. I said “it would appear” because, the arrest of the Appellant, recovery of the properties which PW1 alleged were stolen from him during the alleged robbery incident and most importantly, the matchete which PW1 alleged the Appellant used to inflict injury on his left leg, the evidence of the injury sustained by PW1, are all suspect. Indeed, PW2, the Investigating Police Officer, gave a sworn testimony that, he did not visit the scene of the alleged crime. Worse still, he also did not testify about how, when and where he recovered the said items, most importantly, the matchete allegedly used by the Appellant during the robbery, all of which the learned trial Judge curiously admitted in evidence. In my opinion, all of these created “lacunae”, very deep and broad, in the evidence relied on by the Respondent/prosecution in the instant matter. The issue of exhibit B, the alleged confessional statement of the Appellant, is another improbable and unreliable piece of evidence relied upon by the Respondent/prosecution against the Appellant/accused and which the trial Court, ought not to have acted upon in convicting the Appellant. Having stated that I may not have to dwell for now, on the nitty-gritty of the above stated points, I will now proceed to the issue of the identity of the Appellant, that is, whether it was the Appellant who robbed PW1 with a matchete on the day or night of the incident, I have perused the record of appeal, I could not find where pW1, the victim of the alleged crime, reported the attack on him to the police, That he failed to report the crime immediately or promptly is not so much the issue, rather, being the complainant, when he eventually reported to the police, he did not volunteer a statement in this regard and indeed, in his oral sworn testimony, he did not explain how he was able to recognize the Appellant as the person who robbed him, despite the fact that the incident took place at night, around 10pm on the fateful day. The assertion by PW1 that he knew the Appellant before the incident without more, is rather very naked, bare and unreliable.
It is important to restate here, that, the identification of an accused person is an essential ingredient of the offence of armed robbery. Indeed, it is the foundation upon which the other ingredients are built. Therefore, it must be ascertained first and foremost, that the accused person was actually the person who carried out the armed robbery. Now, there is a distinction between recognition and identification. In the case of: Woru V. State (2011) All FWLR (Pt. 602) p.1644, Nweze, JCA, relying on the holding of Oputa, JSC in the case of Nwabueze v. State (1988) 4 NWLR (Pt.85) p.16, stated thus:
Recognition of an accused person arises when a person sees a man or woman, who is well-known to him committing a crime. The natural reaction here would be to “give the name of such an accused person to the police at the earliest opportunity when he makes his statement to them during police investigation into the alleged offence”, per Oputa JSC in Nwabueze v. State. On the other hand, the identification of an accused person arises when a person unknown to witnesses commits a crime in their presence, According to Oputa JSC in Nwabueze v. State 257-258, the usual reaction of the witness in this instance would be “I saw someone that night for the first time. I can identify him if I see him again”. In such a situation, the identity of the accused person becomes a fact in issue or relevant fact.
In the instant matter, PW1 stated that he had known the Appellant long before the day the Appellant allegedly attacked him. In the case of: Bashaya v. State (1998) 5 NWLR (Pt.550) p.351, the Supreme Court held that, whenever the correctness of the identity of an accused person is in issue, a trial Court must examine closely the circumstances in which the identification was made by a witness. Such as, how long the witness observed the accused person/at what distance, in what light, was the observation impeded in anyway and whether the witness had any special reason for remembering the accused person. PW1 did not tell the Police, the names of the Appellant as his attacker. Worse still, with due respect, the learned trial Judge did not examine, indeed, he failed to even consider or pay attention to any of the stated circumstances, hence, he did not make findings in respect thereof.
Generally, where as in the instant matter, an accused person was not arrested at the scene of crime, the evidence of identification would require a great caution , by a trial judge, before acting on it, to convict the accused person. In the case of: Ndidi v. The State (2007) 13 NWLR (Pt. 1052) p. 633, the Supreme Court on this point held as follows:
…A trial Judge in Nigeria must not only warn himself but meticulously examine the evidence proffered to see whether there are any weaknesses capable of endangering or rendering worthless any contention that the accused was sufficiently recognized by the witness.
The need for a trial Judge to exercise caution before convicting an accused whose identity is in dispute and who was not arrested at the scene of crime, was succinctly stated in the case of: Ndidi v. The State supra, by Muhammad, JSC at pages 657 – 658, thus:
This is a criminal appeal in which the Appellant was sentenced to death by hanging or by firing squad. Although the offence with which the Appellant was charged was a serious one, i.e. robbery which now becomes a cankerworm in the Nigerian Society and which of course requires drastic, urgent and effective solution to curb it, we should not forget that in criminal trials, particularly in capital offences, the trial court must arrive at its decision through a process of reasoning which is analytical and commands confidence. A judgment which sends a man to the gallows to await the hangman to execute him at any single minute, must be punctuated by logical thinking based on cogent and admissible evidence in which the facts leading to his conviction are clearly found and legal inferences carefully drawn, It can hardly be allowed to stand if founded on scraggy or a perfunctory performance.
It is my strong opinion that, in the instant matter, the quality of evidence at the end of the prosecution’s case, on the issue of identity or recognition of the Appellant offered by PW1 is poor, weak and unreliable. The Appellant was not arrested at the scene of the alleged crime, there was no written report by PW1 to the Police, stating how he was robbed and able to recognize the Appellant, who he claimed he had known for long, at those dark hours of the night. Of cause, the issue of the conduct of an identification parade is inapplicable in this matter. With all these red-flags, the learned trial Judge ought to have not only warned himself as to the danger of convicting the Appellant when he, that is, the Appellant, was not arrested at the scene of crime and there was no corroboration of the evidence of PW1’s regarding the proper recognition and identification of the Appellant. As earlier on alluded to by me above, having found that, PW1 did not state how he was able to recognize the Appellant in the dark, the question of identification is indeed otiose.
Therefore, I hold that the identity of the Appellant was in doubt. The doubt in my opinion, being quite reasonable, must be and is hereby resolved in his favour.
Before I end this judgment, I must not fail to chide the Police the umpteenth time, for the very shoddy manner in which they discharged their constitutional duty of crime investigation in this matter. Indeed, I venture to even state that, they did not investigate this matter at all. This being a capital offence, one would have expected the Police to be very diligent especially, in the gathering of evidence they planned to use in establishing the offence with which the Appellant was charged. I am always amazed at the trend and style of the Police in this country, it is only in this nation that, most people accused of committing crimes end up “confessing” to the commission of crimes vide the so-called “confessional statements”. This is very ridiculous and laughable. Therefore, I am using this occasion again to appeal to the Police to please step up and keep pace with the high standards of crime investigation which obtains in all civilized countries of the world and always ensure that they perform their constitutional duty creditably well. They owe Nigeria and Nigerians this duty of care.
In conclusion, I am at one with the learned counsel for the Appellant that, the offence with which the Appellant was charged was not proved beyond reasonable doubt by the Respondent. Indeed, I dare say that the prosecution in this matter, failed woefully in discharging the onus placed on it by law, in proving that the Appellant committed the offence of armed robbery with which he was charged, by it. There was a severe doubt in the case of the prosecution which the learned trial Judge ought to have resolved in favour of the Appellant. In the result, this issue is equally resolved in favour of the Appellant and against the Respondent.
Consequently, this appeal succeeds and is allowed in part. The judgment of the trial Court delivered on 20th November, 2006, is hereby set aside. A verdict of discharge and acquittal is entered in favour of the Appellant.
RAPHAEL CHIKWE AGBO, J.C.A.: I agree
JUMMAI HANNATU SANKEY, J.C.A.: I had the opportunity of reading in draft the lead Judgment written by my learned brother, Omoleye, J.C.A. I agree with her reasoning and conclusions.
The Record of Appeal shows that the Pw1 claimed to have known the Appellant a long time before the date of the incident wherein he was attacked. Yet, when making his report, he did not give the police the name of the Appellant as the person who attacked him. The position of the law is that where a witness fails to mention the name of an accused, (which he knew before the commission of the crime), to the police at the earliest opportunity, that would detect from whatever credibility the trial court may wish to ascribe to his evidence. This surely aligns with common sense. The Supreme Court has held that failure to adopt this common sense approach would inevitably result in the acquittal and discharge of an accused. See Abdullahi v The State (2008) 5 SCNJ 197; Udeh v. The State (1999) 7 NWLR (pt.609) 1; Wakata v The State (1991) 8 NWLR (Pt.609) 1; Wakala v. The State (1991) 8 NWLR (Pt.211) 552; R.V Turnbull (1976) Cr. App. R. 132.
Recognition is unquestionably more dependable than identifying a stranger. But even when the witness is purporting to recognize someone whom he knows, the trial Judge must warn himself that mistakes in recognition, of even close relatives and friends, are sometimes made. see Abdullahi v The State (supra); Abudu v State (1985) 1 NWLR (Pt.1) 55; R. v Turnbull (supra). In criminal trials, the burden is always on the prosecution to establish its case beyond reasonable doubt’ Then, it becomes incumbent upon the court to arrive at its decision through a process of reasoning which is analytical and commands confidence.
Having regard to the facts and circumstances of this case, I too think that the verdict was unsafe and unsatisfactory. For the reason I have given above, and the further reasons given in the lead Judgment, which I hereby adopt, I agree that there is merit in the Appeal. I accordingly allow it and set aside the conviction and sentence passed on the Appellant. In its stead, I enter an order of discharge and acquittal.
Appearances
S. G. Oyafemi with him M. S. Umar, I. K. Danfulani and B. S. AhmadFor Appellant
AND
Respondent absent For Respondent
