OLUSOLA ADEYEMI V. THE STATE
(2010)LCN/4029(CA)
In The Court of Appeal of Nigeria
On Thursday, the 4th day of November, 2010
CA/A/276C/2009
RATIO
STATUTORY PROVISION: PROVISION OF ORDER 17 RULE 4 (2) OF THE COURT OF APPEAL RULES 2007 AS IT RELATES TO THE CONTENT OF A RESPONDENT’S BRIEF
Order 17 rule 4 (2) of the Court of Appeal Rules 2007 provides that the Respondent’s brief shall answer all material points of substance contained in the Appellant’s brief and contain all points raised therein which the Respondent wishes to concede as well as reasons why the appeal ought to be dismissed………………….. PER JIMI OLUKAYODE BADA, J.C.A.
INELEGANT ISSUES FOR DETERMINATION: WHETHER AN APPELLATE COURT WILL CONSIDER INELEGANTLY FORMULATED ISSUES FOR DETERMINATION FORMULATED BY THE RESPONDENT
It is true that the issues as formulated by the Respondent are inelegant. The position of the law is that the issues for determination formulated by the Respondent should accord with the Appellant’s issues for determination sifted from the grounds of appeal. In my humble view even though the Respondent’s issues for determination had been inelegantly formulated but they are not totally useless. This Court being an Appellate Court will consider the said inelegantly formulated issues for determination by the Respondent in order to fulfill its duty of doing substantial Justice to the parties. See:- – Fasanya V. Adekoya (2000) 15 NWLR Part 689 Page 22. PER JIMI OLUKAYODE BADA, J.C.A.
FAIR HEARING: DUTY OF THE COURT TO ENSURE FAIR HEARING
Under Section 36 of the 1999 Constitution of the Federal Republic of Nigeria fair hearing is guaranteed to all citizens. The Courts are therefore enjoined to ensure that rules of Natural Justice which encompass the two maxims of “audi alterem partem” (hear the other side) and “nemo judex in causa sua” (one cannot be a judge in his own cause) are observed in the determination of the rights and obligation of any person whether or not the person is an accused person. PER JIMI OLUKAYODE BADA, J.C.A.
STATUTORY PROVISION: PROVISION OF SECTION 227 OF THE EVIDENCE ACT CAP E 14, LAWS OF THE FEDERATION OF NIGERIA 2004 AS TO WHETHER A WRONGFUL ADMISSION OF EVIDENCE CAN BE A GROUND FOR THE REVERSAL OF THE DECISION OF THE TRIAL COURT ON APPEAL
Section 227 of the Evidence Act Cap E 14, Laws of the Federation of Nigeria 2004 provides thus:- “The wrongful admission of evidence shall not itself be a ground for the reversal of any decision in any case where it shall appear to the Court on appeal that the evidence so admitted cannot reasonably be held to have affected the decision and that such decision would have been same if such evidence had not been admitted.” It is trite that where there is sufficient evidence to link an Appellant to the offence charged without the wrongfully admitted evidence, the Appellate Court will not upturn the decision of the trial Court. In Akpan V. The State (Supra) the Supreme Court held that:- “By virtue of Section 226(1) (now Section 227(1) of the Evidence Act), the wrongful admission of evidence shall not itself be a ground for the reversal of any decision in any case where it will appear to the Court on appeal that the evidence so admitted cannot reasonably be held to have affected the decision and that such decision would have been the same if such evidence have not been admitted.” Also in the same case i.e. Akpan V. The State Page 355, the Supreme Court held further that:- “It is not enough, for the Purpose of seeking a reversal of a Judgment, merely to show that evidence was wrongfully admitted. An Appellant making the complaint has a duty to show that without such evidence, the decision would have been otherwise.” See also the case of:- – Okoro V. The State (Supra) at Page 189. PER JIMI OLUKAYODE BADA, J.C.A.
JUSTICES:
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
Between
OLUSOLA ADEYEMI – Appellant(s)
AND
THE STATE – Respondent(s)
JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of High Court of Justice, Kotonkarfe, Kogi State in Charge No. HCC/200/2008 – Olusola Adeyemi V. The State delivered on the 20th day of April, 2009.
The Appellant was arraigned before the lower Court on a two count charge as follows:-
“Count One
That you Olusola Adeyemi and others still at large on or about the 10th day of June, 2007 in Lokongoma extension, Lokoja Local Government Area of Kogi State within the Kogi State Judicial Division agreed to do an illegal act to wit: to commit the offence of Armed Robbery against Engineer Raphael Olajide Sabo and the same act was done in pursuance of the agreement and you thereby committed an offence punishable under Section 97(1) of the Penal Code.
Count Two
That you Olusola Adeyemi on or about the 16th day of June, 2007 at Lokongoma extension, Lokoja in Lokoja Local Government Area of Kogi State within the Kogi State Judicial Division while armed with guns and other dangerous weapons robbed one Engineer Raphael Olajide Sabo one Honda Halla Model Car valued Five Hundred and Fifty Thousand Naira (=N=550,000.00), cash sum of Five Thousand Naira =N=5,000.00, one First Bank Savings Account Passbook, a pair of glasses valued Five Thousand Naira (=N=5,000.00), some cassettes valued Three Thousand (=N=3,000.00) and jewelry, wrist watch and handset belonging to his wife and you thereby committed an offence punishable under Section 298(c) of the Penal Code.”
At the trial the prosecution called four out of the five witnesses listed in the proof of Evidence while the Accused/Appellant testified in his own defence.
The learned trial Judge at the conclusion of hearing convicted the Appellant and sentenced him to 3 years imprisonment for the offence of conspiracy while he was sentenced to 5 years imprisonment for the offence of Armed Robbery. The two sentences were to run concurrently.
The Appellant dissatisfied with the said Judgment of the lower court appealed to this Court.
The learned counsel for the Appellant formulated three issues for determination as follows:-
“(1) Whether there was a breach of the Appellant’s right of fair hearing and miscarriage of Justice when the learned trial Judge relied on the evidence of the prosecution’s first and second witnesses daughter who did not testify and or give evidence before the trial Court to convict and sentence the Appellant to three and five year’s prison terms on crimes bothering on conspiracy and Armed Robbery.
(2) Whether the learned trial Judge did not err and occasioned a miscarriage of Justice when the Honourable Court foreclosed that an identification parade was not necessary considering that the Appellant was not arrested at the scene of crime.
(3) Whether the learned trial Judge did not err when he convicted the Appellant on the offence of conspiracy and Armed Robbery considering the state of the evidence adduced.”
The learned Counsel for the Respondent on the other hand also formulated three issues for determination as follows:-
“(1) Whether on the totality of evidence adduced before the trial Court, the prosecution has proved the guilt of the Appellant beyond reasonable doubt.
(2) Whether the Appellant’s right to fair hearing was breached.
(3) Whether in the consideration of the circumstances of this particular case, there was need to have conducted an identification parade.”
At the hearing, the learned Counsel for the Appellant referred to the brief of argument filed on behalf of the Appellant on 25/3/2010 and the Appellant’s reply brief of argument, he adopted the two briefs in urging the Court to allow the Appeal.
The learned Counsel for the Respondent also referred to the Respondent’s brief of argument deemed filed on 17/6/2010; he adopted it as his argument in urging the Court to dismiss the Appeal.
The issues for determination formulated by Counsel for the parties are not exactly the same however; I will rely on the issues as set out in the Appellant’s brief of argument in the determination of this Appeal because it would settle the issues in controversy between the parties.
ISSUE 1
Whether there was a breach of the Appellant’s right of fair hearing and a miscarriage of Justice when the learned trial Judge relied on the evidence of the prosecution’s first and second witnesses daughter who did not testify and give evidence before the trial Court to convict and sentence the Appellant to three and five years prison terms on crimes bothering on conspiracy and armed robbery.
The learned Counsel for the Appellant submitted that the prosecution has a duty to proof the case against an accused or defendant beyond reasonable doubt. He referred to the following:-
– Section 138 of the Evidence Act:
– Section 36(1) of the 1999 Constitution of the Federal Republic of Nigeria.
He went further that in doing so, the accused person’s right to fair hearing and fair trial must not be compromised but guaranteed. He relied on the following cases:-
– Umaru V. The State (2008) 42 W.R.N. Page 65 at 74 – 75;
– Uzoho V. N.C.P. (2007) 10 NWLR Part 1042 Page 327 at 346;
– Ika Local Government Area V. Mba (2007) 12 NWLR Part 1049 Page 682 at 704;
– State V. Ozuzu (2009) 3 NWLR Part 1128 Page 253 at 267.
The learned Counsel for the Appellant stated that the learned trial Judge in his Judgment relied on the evidence of the prosecution’s first and second witnesses (PW1 and PW2) daughter, an individual who did not give evidence in the matter and yet the evidence was used to convict the Appellant and sentenced him to three and five years imprisonment respectively for crimes bothering on conspiracy and armed robbery.
He referred to page 45 lines 14 – 16 of the Record of Appeal where the learned trial Judge stated that “The factual setting in this case as demonstrated by the evidence of PW1 AND PW2 and their daughter is that they were having dinner” submitted that the Appellant was not given fair hearing. He relied on the following cases:-
– Mattaradona V. Ahu (1995) 8 NWLR Part 412 Page 230 at 239;
– George V. State (2009) 1 NWLR Part 1122 at Page 330 at 346;
– B. Mantag Nig. Ltd v. M/S. O.I. Ltd (2007) 14 NWLR Part 1053 Page 121 at 151;
– Olawepo V. Saraki (2009) 45 WRN Page 80 at 134.
Learned Counsel for the Appellant urged that this issue be resolved in favour of the Appellant.
In his response, the learned Counsel for the Respondent referred to the Appellant’s allegation that his right to fair hearing was breached when the learned trial Judge relied on the evidence of the prosecution first and second witnesses daughter who did not testify nor give evidence before the trial Court to convict and sentence him, thereby occasioning a miscarriage of Justice against him.
To the above allegation, learned Counsel for the Respondent submitted that it was a typographical error because the first and second prosecution witnesses’ daughter did not testify during trial, neither did she make any statement to the police after the robbery. And there was no other place in the Judgment of the lower Court where that statement was repeated.
He submitted further that the statement made by the learned trial Judge amounts to a wrongful admission of evidence which cannot be a ground for the reversal of the decision of the trial Court on Appeal.
He relied on the following:-
– Section 227 of the Evidence Act Cap. E 14 Laws of the Federation of Nigeria 2004:
– Akpan V. The State (1994) 9 NWLR Part 368 Page 347 at 355;
– Okoro V. The State (1998) 14 NWLR Part 584 Page 181 at 189.
He also submitted that the Appellant has not shown that if the evidence of the first and second prosecution witnesses’ daughter was not admitted, the decision of the learned trial Judge would have been otherwise i.e. he would not have been convicted.
He finally urged this Court to hold that the statement of the learned trial Judge in contention is a mere observation which amounts to wrongful admission of evidence which did not influence the decision of the trial Court in any way.
In his reply brief of argument, the learned Counsel for the Appellant contended that the Respondent’s brief of argument should be struck out or discountenanced for not complying with Order 17 rule 3(1) (2) (3) (4) & (5) of the Court of Appeal Rules 2007. He went further that the Respondent did not specify from which of the grounds of appeal the issues for determination were formulated from. It was also stated on behalf of the Appellant that the Respondent was at liberty to formulate issues for determination different from that of the Appellant but the liberty avails only a Respondent who has filed a Respondent Notice or a Cross Appeal.
He relied on the case of:-
– Egbe V. N.U.T. (2008) 5 NWLR Part 1081 Page 604 at 625 – 626.
Order 17 rule 4 (2) of the Court of Appeal Rules 2007 provides that the Respondent’s brief shall answer all material points of substance contained in the Appellant’s brief and contain all points raised therein which the Respondent wishes to concede as well as reasons why the appeal ought to be dismissed…………………..
It is true that the issues as formulated by the Respondent are inelegant. The position of the law is that the issues for determination formulated by the Respondent should accord with the Appellant’s issues for determination sifted from the grounds of appeal.
In my humble view even though the Respondent’s issues for determination had been inelegantly formulated but they are not totally useless. This Court being an Appellate Court will consider the said inelegantly formulated issues for determination by the Respondent in order to fulfill its duty of doing substantial Justice to the parties.
See:-
– Fasanya V. Adekoya (2000) 15 NWLR Part 689 Page 22.
The question to be answered at this juncture is whether or not the Appellant’s right to fair hearing was breached.
Under Section 36 of the 1999 Constitution of the Federal Republic of Nigeria fair hearing is guaranteed to all citizens. The Courts are therefore enjoined to ensure that rules of Natural Justice which encompass the two maxims of “audi alterem partem” (hear the other side) and “nemo judex in causa sua” (one cannot be a judge in his own cause) are observed in the determination of the rights and obligation of any person whether or not the person is an accused person.
The Appellant has alleged that his right to fair hearing was breached when the learned trial Judge relied on the evidence of the first and second prosecution witnesses’ daughter who did not testify and/or give evidence before the trial Court to convict and sentence him, thereby occasioning a miscarriage of Justice against him.
It is very clear from the Record of Appeal that the first and second prosecution witnesses’ daughter did not make statement to police and neither did she testify before the trial Court.
At page 41 of the Record of Appeal the learned trial Judge in his Judgment stated among others that-
“The evidence of PW1, Engineer Raphael Olajide Sabo, substantially agrees with that of his wife Mrs. Titilayo Sabo who gave evidence as PW2. The summary of their evidence is as follows:-
On the 16th day of June, 2007, at about 6.45 pm, PW1, PW2 and their daughter were eating at the sitting room when three persons led by a man armed with a gun entered into the sitting room and introduced themselves as hired assassins who came on a mission to kill PW7.
PW1 and PW2 became scared and helpless because of the gun. They therefore surrendered and carried out all the instruction dished out by the assassins. They demanded for money from PW1, who told them that he had Only Five Thousand Naira (=N=5,000.00) kept inside the car parked outside………………………..?
The learned Counsel for the Respondent submitted that the statement made by the learned trial Judge which formed the basis of the Appellant’s allegation must be a typographical error or at most amounts to a wrongful admission of evidence.
I agree with the submissions of the learned Counsel for the Respondent because the first and second prosecution witnesses’ daughter did not testify during trial, neither did she make any statement to the police after the robbery and there was no other place in the Judgment where the prosecution’s first and second witnesses daughter was mentioned in that respect.
A careful reading of the entire Judgment of the lower Court would show that the mention of the first and second prosecution witnesses’ daughter by the learned trial Judge was made to point to the fact that PW1, PW2 and their daughter had the opportunity of observing the features of the robbers who came to their house on the day of the incident.
This allegation of the Appellant could also be viewed from the angle that the trial Judge wrongfully admitted the evidence in question.
Section 227 of the Evidence Act Cap E 14, Laws of the Federation of Nigeria 2004 provides thus:-
“The wrongful admission of evidence shall not itself be a ground for the reversal of any decision in any case where it shall appear to the Court on appeal that the evidence so admitted cannot reasonably be held to have affected the decision and that such decision would have been same if such evidence had not been admitted.”
It is trite that where there is sufficient evidence to link an Appellant to the offence charged without the wrongfully admitted evidence, the Appellate Court will not upturn the decision of the trial Court.
In Akpan V. The State (Supra) the Supreme Court held that:-
“By virtue of Section 226(1) (now Section 227(1) of the Evidence Act), the wrongful admission of evidence shall not itself be a ground for the reversal of any decision in any case where it will appear to the Court on appeal that the evidence so admitted cannot reasonably be held to have affected the decision and that such decision would have been the same if such evidence have not been admitted.”
Also in the same case i.e. Akpan V. The State Page 355, the Supreme Court held further that:-
“It is not enough, for the Purpose of seeking a reversal of a Judgment, merely to show that evidence was wrongfully admitted. An Appellant making the complaint has a duty to show that without such evidence, the decision would have been otherwise.”
See also the case of:-
– Okoro V. The State (Supra) at Page 189.
In this appeal under consideration, it has not been shown that if the evidence of the first and second prosecution witnesses’ daughter was not admitted that the decision of the learned trial Judge would have been otherwise i.e. he would not have been convicted. Apart from that, there was a confessional statement made by the Appellant.
Furthermore, the Appellant has left the real substance to pursue shadow. When a case is bad, it is bad, there is nothing that can change it, not even resorting to breach of fair hearing can resolve it.
In a similar situation the Supreme Court per Niki Tobi JSC had this to say in:-
Adebayo V. Attorney General of Ogun State (2008) 7 NWLR Part 1085 Page 201 at 205 as follows:-
“Learned Counsel for the Appellant roped in the fair hearing principle. I have seen in recent times that parties who have bad cases embrace and make use of the Constitutional provision of fair hearing to bamboozle the adverse party and the Court, with a view to moving the Court away from the live issues in litigation. They make so much weather and sing the familiar song that the Constitutional provision is violated or contravened. They do not stop there; they rake the defence in most inappropriate cases because they have nothing to canvass in their favour in the case. The fair hearing provision in the Constitution is the machinery or locomotive of Justice, not a spare part to propel or invigorate the case of the user. It is not a casual principle of law available to a party to be picked up at will in a case and force the Court to apply it to his advantage. On the contrary, it is a formidable and fundamental provision available to a party who is really denied fair hearing because he was not heard or that he was not properly heard in the case. Let litigants who have nothing useful to advocate in favour of their cases leave the fair hearing Constitutional provision alone because it is not available to them just for the asking.”
In the circumstance, it is my view that the statement made by the trial Judge relied upon by the Appellant in making his allegation of breach of fair hearing was a mere observation or at most wrongful admission of evidence which did not influence the decision of the trial Court because there are other materials before the trial Court for it to arrive at the same decision if the alleged evidence of the 1st and 2nd prosecution witnesses’ daughter is removed. Therefore, Appellant’s right to fair hearing could not be said to have been breached.
In view of the foregoing this issue is resolved in favour of the Respondent against the Appellant.
ISSUE No.2
“Whether the learned trial Judge did not err and occasioned a miscarriage of Justice when the honourable Court foreclosed that an identification parade was not necessary considering that the Appellant was not arrested at the scene of crime.
The contention of the Appellant is that since he was not caught at the scene of the robbery, identification parade ought to have been conducted and failure of the prosecution to do so vitiates the Judgment of the trial Court.
The learned Counsel for the Appellant urged that the eye witness evidence on identification by the PW2 should be set aside because according to him the identification is shaky and poor.
He relied on the following cases of:-
– Wakala V. The State (1991) 8 NWLR Part 211 Page 556 at 565:
– Isiekwe V. The State (1999) 9 NWLR Part 617 Page 47 at 62.
Learned Counsel also submitted that where the eye witness account fails to mention the name of the accused person at the earliest opportunity, an accused person would under such circumstance be entitled to acquittal and discharge.
He relied on:-
– Isah V. The State (2008) 18 NWLR Part 1119 Page 289 at 294 – 295.
He went further in his submission that since the identification of the Appellant was an issue before the lower Court and none was carried out in terms of a proper identification parade, that this issue should be resolved in favour of the Appellant.
It was also stated on behalf of the Appellant that even though PW2 claimed to recognize the Appellant but failed and neglected to give at first instance immediately after the robbery the Appellant’s names, describe his clothes/attires at the scene of the crime to the police when she was making her statement.
Learned Counsel for the Appellant went further in his submission that the claim by PW2 to have recognized the Appellant at the police station is not the same as an identification parade which would have produced the Appellant.
He relied on:
– Wakala V. The State (Supra) at Page 565 Paragraph G – H. where it was held among others that:-
“Recognition of an accused person arises when a person sees a well known man or woman, the accused committing a crime. The story of such a person attracts a great deal of weight, if such a person reports the incident to the police at the earliest opportunity. He should mention the name and describe where he lives or usually seen, the features of the accused person and the clothes the accused wore at the scene of crime.”
He finally urged the Court to resolve this issue in favour of the Appellant.
The learned Counsel for the Respondent in his own submission stated that identity evidence is that tending to show that the person charged with an offence is the same as the person who was shown to have committed the offence.
He submitted that an identification parade is not a sine qua non to a conviction for a crime alleged in criminal trials. He relied on the following cases:-
– Archibong V. The State (2004) 1 NWLR Part 855 Page 488 at 494:
– Ikemson V. The State (1989) 3 NWLR Part 110 Page 1:
– Tanko V. The State (2008) 16 NWLR Part 1114 Page 591 at 607:
– Ukpabi V. The State (2004) 11 NWLR Part 884 Page 439 at 442.
He went further in his submission that there was no need for an identification parade in this matter, because of the spontaneous and prompt manner in which the Appellant was identified by PW1 and PW2.
It was further submitted on behalf of the Respondent that an identification parade is not necessary where the accused person has identified himself.
He relied on the case of: – Archibong V. The State (Supra).
He also referred to the Confessional Statement made by the Appellant contained on pages 13 – 14 of the Record of Appeal. And he submitted that the Appellant has sufficiently identified himself as one of the robbers that attacked PW1 and PW2.
He finally urged the Court to hold that there was no need for an identification parade.
It is trite that when an offender is not arrested at the scene of a crime and his identity is in issue, identification parade should be conducted to ascertain the identity of the offender.
In the instant case, the Appellant was not arrested at the scene of crime but after his arrest, he was later identified by PW1 and PW2 at the Police Station.
Although an identification parade is not a sine qua non to a conviction for a crime alleged, but it is essential in the following instances:-
(a) Where the victim did not know the accused before and his first acquaintance with him was during the commission of the offence;
(b) Where the victim or witness was confronted by the offender for a very short time, and;
(c) Where the victim due to time and circumstances might not have had the full opportunity of observing the features of the accused.
See the following cases:-
– Archibong V. The State (Supra)
– Ikemson V. The State (1989) 3 NWLR Part 110 at 455.
In this case, the PW1 and PW2 who were the victims of the robbery failed to mention the name of the Appellant at the earliest opportunity to show that they saw the Appellant and others when the offence was committed.
A Court must be careful in accepting this type of evidence given later implicating the Appellant unless a satisfactory explanation is given as to why the names were not mentioned before or at the earliest opportunity.
Furthermore, the PW1 and PW2 did not claim to know the Appellant before the incident. Thus if a complainant or an eye witness to a crime knew the accused person before the commission of a crime and had omitted to mention their names to the police when he made his complaint or written statement to the police, the failure by the trial Court to take that omission into consideration before deciding whether the evidence of such a complainant or witness against the accused persons was true or not would amount to a non-direction on material evidence in favour of such accused person and such non-direction would have necessarily occasioned a miscarriage of Justice. An accused person would under such circumstances be entitled to acquittal and discharge.
At this stage and with the position of evidence earlier enumerated the Appellant in this case could have been discharged. But where an accused person as in the instant case made a confessional statement, therefore by his confessional statement he has identified himself and there would be no need for any further identification parade.
Where there is good and cogent evidence linking the accused person to the crime on the day of the incident, a formal identification may be unnecessary.
The lower Court in its Judgment on page 46 of the record of appeal referred to part of the confessional statement of the Appellant. The confessional statement was marked as Exhibit P2. It reads as follows –
“Father G told me that Alhaji Dagana is in need of motor and that I will help him drive so that we will both go and give the vehicle to Alhaji Dangana. Father G call Alhaji Dangana and he, Alhaji Dangana met us in the barracks together with Hashina both of there speak (sic) Hausa and later informed me that we are (sic) going to Lokoja to take a vehicle. We entered public transport down to Lokoja. But I saw Father G right from Suleja with locally made pistol and one cartridge. On arriving Nataco we dropped from vehicle at about 1730hrs and they instructed that we are going to Ganaja/Phase 1 and our mission is (sic) to snatch any Honda Car. After NYSC, we dropped and started trecking towards phase 1. Along the road we saw one house, the fence was not tall and one Honda Halla Car was parked inside there, we entered and met the man eating and the wife sat by his side. Father G pointed gun on him and demanded for his vehicle key. The man gave him the vehicle key with the vehicle particulars with two handsets and the sum of Five Thousand Naira in the vehicle saves and we drove to Suleja. I personally drove it. On reaching Suleja, father ‘G’ called Dangana to come and carry the motor. Alhaji Dagana sent Hashim to meet us and we settled for the vehicle at the rate of Two Hundred Thousand (N200,000) and the sum of (N100,000) One Hundred Thousand Naira was paid to us on the spot. I was given Thirty Thousand Naira, Thirty Five Naira was paid to father G and Alhaji Danladi took Thirty-Five Thousand with the promise that he would pay the remaining balance of One Hundred Thousand in two weeks time.”
The lower Court in its Judgment held that the Accused person by Exhibit P2 confessed to the commission of the crime, although he tried to retract the confession during trial. But that the said confession contains full, comprehensive and almost exhaustive and meticulous facts on how the robbery was hatched.
I agree with the decision of the lower Court in this regard that the confession was positive, direct and unequivocal in that it amounts to admission of guilt by the accused.
In conclusion on this issue, it is my view that even though the learned trial Judge foreclosed that an identification parade was not necessary considering the fact that the Appellant was not arrested at the scene of crime but the confessional statement Exhibit “P2” has made the situation clearer in that there are facts which confirmed the confession in the evidence before the lower Court.
In the circumstance, this issue is resolved against the Appellant and in favour of the Respondent.
ISSUE No.3
“Whether the learned trial Judge did not err when he convicted the Appellant of the offence of conspiracy and armed robbery considering the state of the evidence adduced.”
Learned Counsel for the Appellant referred to the evidence of PW1 where he stated that “three people entered my sitting room led by one of them carrying a gun…
He also referred to the evidence of PW2 where she stated that-
“………. On 16/6/2007, two men came into our house at about 7.30 pm. I was with my husband and my little baby. They faced my husband with gun and said they were hired assassins who had come to kill him.”
Learned Counsel for the Appellant submitted that based on the evidence referred to above there is material contradiction between the evidence of PW1 and PW2 and he stated that based on that the Appellant ought to have been discharged and acquitted. He relied on the following cases:-
– Abudullahi v. The State (2008) 17 NWLR Part 1115 Page 206 at 221 – 222;
– George V. The State (Supra) Paragraghs C-D;
– Archibong V. The State (2007) 10 WRN Page 12 at Page 29 lines 40 – 45;
– Shade V. The State (2005) 40 WRN Page 145;
– Okeke V. The State (1995) 4 NWLR Part 392 Page 687 at 707.
It was also submitted on behalf of the Appellant that the confessional statement Exhibit P2 should not have been accepted by the lower Court because the Appellant denied making the statement. He relied on the case of:-
– Momodu V. The State (2008) 28 WRN 37 at 69.
In summary, under issue No. 3 the learned Counsel for the Appellant wanted this Court to determine whether the learned trial Judge did not err when he convicted the Appellant of the offence of conspiracy and armed robbery considering the state of evidence adduced.
The argument of the learned Counsel for the Appellant was based on the following grounds:-
(1) That there exist discrepancies in the testimonies of PW1 and PW2 as to the number of robbers who came to their residence on the day of the incident.
(2) That it was not established that the Appellant was armed and as a result should have been discharged and acquitted.
(3) That the defence of Alibi relied upon by the Appellant was not punctured by the prosecution during cross examination.
(4) That since he was not caught at the scene of the robbery, identification parade ought to have been conducted and failure of the prosecution to do so vitiates the Judgment of the trial Court.
(It should be noted that this aspect was treated under issue No. 2 earlier in this Judgment).
(5) That while the learned trial Judge considered and ruled on the admissibility of the alleged confessional statement, it failed and refused to consider the authorship of the statement.
He finally urged that this issue be resolved in favour of the Appellant.
The learned Counsel for the Respondent in his own submission stated that the discrepancies in the evidence of PW1 and PW2 sought to be relied upon by the Appellant as regards the number of robbers who attacked them on the day of the incident and who among the robbers was armed does not derogate from the fact that the Appellant was among the robbers who robbed them on that day. He submitted that the discrepancies as alleged by the Appellant do not relate to the offences charged and it does not vitiate the findings of a trial Court.
As to the allegation by the Appellant that it was not established that the Appellant was armed and therefore should have been discharged and acquitted, the learned Counsel for the Respondent submitted that the Appellant was among the robbers that robbed PW1 and PW2 on the day of the incident and it is immaterial who among them was armed.
Concerning the allegation by the Appellant that his defence of Alibi was not punctuated by the prosecution during cross examination, learned Counsel for the Respondent submitted that Alibi raised by the accused that he was in his house at Gwarinpa Abuja on 16/6/2007 is weak and an afterthought because it was raised for the first time in the witness box.
He relied on the following cases:-
– Sunday Ndidi v. The State (2007) 5 SC Page 175;
– Azeez V. The State (2005) 8 NWLR Part 927 Page 312;
– Sowemimo V. The State (1993) 4 NWLR Part 290 Page 675.
Learned Counsel for the Respondent finally urged this Court to uphold and affirm the decision of the learned trial Judge delivered on 20/4/2009 and dismiss the appeal.
In criminal proceedings, it is the duty of the prosecution to prove its case beyond reasonable doubt, although it is not essential to prove the case with absolute certainty, the ingredients of the offence charged must, however, be proved as required by law and to the satisfaction of the Court.
See the following cases:-
– Musa V. The State (2009) 15 NWLR Part 1165 Page 467;
– Obiakor V. The State (2002) 10 NWLR Part 776.
It was contended on behalf of the Appellant that there exist discrepancies in the testimonies of PW1 and PW2 as to the number of robbers who came to their house on the day of the incident.
In order to get the root of the issues raised concerning discrepancies in the evidence of PW1 and PW2, I hereby set out the relevant portion of the evidence of PW1 and PW2 as contained in the Record of Appeal. PW1 in his evidence in chief on page 23 of the Record of Appeal stated that:-
“Three people entered my sitting room led by one of them carrying a gun ……. Meanwhile the other man holding the gun was with my wife and daughter.”?
On page 25 of the Record of Appeal PW2 stated as follows:-
“On 16th June, 2007, two men came into our house at about 7.30 pm. I was with my husband and my little baby. They faced my husband with a gun and said they were hired assassins who had come to kill him.”
A careful examination of the evidence set out above would reveal that while PW1 stated that three men came to their house and robbed them, PW2 stated that two robbers robbed them. The fact that there was discrepancies in respect of the number of robbers and who among them was armed does not derogate from the fact that PW1 and PW2 were robbed on the day of the incident nor does it derogate from the fact that the Appellant was among the robbers who robbed on the said day.
Furthermore, normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence. Material discrepancies are those which are not normal and not expected to a normal person.
Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not erode the credibility of a party’s case, material discrepancies erode it.
See:-
-Sarkahs’ Law of Evidence 16th Edition reprint 2008 at Page 141.
In the case of:- Gabriel V. The State (1989) 5 NWLR Part 122 Page 457 at Pages 468 – 469 Paragraphs H – A the Supreme Court held as follows:-
“A discrepancy may occur when a piece of evidence stops short of, or contains a little more than what the other evidence says or contains some minor differences in detail.”?
Also in the Musa v. The State (2009) 15 NWLR part 1165 page 467 the Supreme Court held among others that:-
“Contradictions in the evidence of the prosecution that will be fatal must be substantial. It is not every miniature contradiction that can vitiate the case of prosecution. A minor contradiction which did not affect the credibility of witnesses will not avail the accused. Contradiction, to be worthy of note, must relate to the substance and indeed the vital ingredients of the offence charged. Trivial contradiction should not vitiate a trial.”
See the following cases:-
– Ankwa V. The State (1969) 1 All NLR Page 133;
– Iyanda V. The Queen (1960) SCNLR Page 595;
– Omisade V. The Queen (1964) 1 All NLR Page 233;
– Sele V. The State (1993) 81 NWLR Part 269 Page 279.
It is therefore my view that the discrepancies as alleged by the Appellant do not relate to the offences charged and it does not vitiate the finding of the trial Court on merit.
It was also contended on behalf of the Appellant that it was not established that the Appellant was armed and therefore should have been discharged and acquitted.
In a charge of Armed Robbery what is of utmost importance is to show that the Appellant was in the company of Armed Robbers, it is immaterial who amongst them was armed.
In the case of:-
– Okpuhor V. The State (1990) 7 NWLR Part 164 Page 455, BELGORE JSC (as he then was) held at paragraphs E – G thus:-
“Once the prosecution has established that the accused person was among the robbers and they were armed with offensive weapons, e.g. Firearms, by common design, the accused is guilty of armed robbery. It matters not that the accused person himself did not carry a weapon.
In the instant case under consideration, the PW1 stated that one of the armed robbers was armed. PW also under cross examination stated that it was the Appellant who was armed.
The most important thing is once it is established that the Appellant was among the robbers who were armed, it does not matter that he himself was not armed, he would be guilty of armed robbery.”
It was also contended on behalf of the Appellant that his defence of Alibi was not punctuated by the prosecution during cross examination.
In reply the learned Counsel for the Respondent stated that the defence was raised for the first time in the witness box, whereas it should have been raised at the earliest opportunity. In Sunday Ndidi V. The State (2007) 5 S.C. Page 175 the Supreme Court held among others that:-
“The defence of the Alibi is a matter that is exclusively within the knowledge of an accused person where he was at a given time.”…….
It was also held in said decision that:-
“The defence of alibi should be raised at the earliest opportunity and opportunity is in the interrogation room. This is to enable the police to investigate the alibi.”
Also in the case of:-
– Azeez V. The State (2005) 8 NWLR Part 927 Page 312 this Court held thus:-
“The burden is always on the accused person to provide at the earliest possible time the material or data of where he was at the time of the commission of crime for the prosecution to take action by investigation to verify the fact.”
Also in Sowemimo v. The State (2004) 4 SCNJ page 146, the Supreme Court held that:-
“A defence of Alibi raised during trial was not made at the earliest opportunity.”
In the circumstance it is my view that the defence of Alibi raised by the Appellant in this case for the first time in the witness box was not made at the earliest opportunity, therefore the Alibi cannot vitiate the Judgment of the trial Court.
The Appellant also contended that the learned trial Judge considered and ruled on the admissibility of the alleged confessional statement but it failed and refused to consider the authorship of the statement.
It has been submitted on behalf of the Respondent that a free and voluntary confessional statement of an accused alone is enough to sustain the conviction of the accused person. And I agree with that submission.
See the case of: –
– Kaza V. The State (2008) 7 NWLR Part 1085 Page 125 at 136 and
– Section 27 (2) of the Evidence Act Cap E 14 Laws of the Federation of Nigeria 2004 which provides thus:-
“Confession if voluntary, are deemed to be relevant facts against the person who make them only.”
Also in:-
– Adebayo V. Att. Gen. of Ogun State (2008) 7 NWLR Part 1085 Page 201 at 204, the Supreme Court held among others that-
“Confession is the best evidence in criminal law. There cannot be better evidence. The law is that a trial Judge can admit confessional statement, if it was made voluntarily and without any inducement, threat or promise from a person in authority.”
Also in the case of Akpan V. The State (2908) NWLR Part 72 at 78, the Supreme Court held that:-
“Confession in criminal procedure, like admission in civil procedure is the strongest evidence of guilt on the part of an accused person. It is stronger than the evidence of an eye witness because the evidence comes out from the “horse’s mouth” who is the accused person. There is no better evidence and there is no need for further proof since what is admitted needs no further proof.”
Although the Appellant alleged that his confession was involuntary, but there is evidence in the record of appeal that trial-within-trial was conducted before the confessional statement of the Appellant was admitted in evidence.
At page 29 of the Record of Appeal the person that recorded the confessional statement of the accused stated as follows:-
“After the arrest I cautioned him and he volunteered a statement. I recorded the statement. After the conclusion of the statement I read the statement over to him, he said he understood and confirmed it as correct.”
The lower Court in this case conducted trial within trial in order to ascertain whether the statement of the accused was voluntary or not. The lower Court did the right thing by conducting trial within trial.
As stated earlier in this Judgment a voluntary confession of guilt by an accused is sufficient to warrant conviction without corroborative evidence if it is direct, positive, duly made and satisfactorily proved.
In the circumstance, it is my view that the prosecution has proved its case against the Appellant beyond reasonable doubt and the trial Judge did not err when he convicted the Appellant of the offence of conspiracy and armed robbery considering the state of evidence adduced.
In view of the foregoing, this issue is therefore resolved in favour of the Respondent and against the Appellant.
In the final analysis, having resolved the three (3) issues for determination in this appeal against the Appellant, the bottom of this appeal has been knocked off. The appeal therefore lacks merit and it is hereby dismissed. Conviction and sentence on the Appellant by the lower Court in the Judgment delivered on the 20th day of April 2009 are hereby affirmed.
MOHAMMED LAWAL GARBA, J.C.A.: A draft of the lead judgment written by my learned brother BADA, J.C.A. in this appeal was read by me. The three issues submitted for determination have been fully considered by his Lordship and I agree with the views expressed thereon. For emphasis and support thereof I wish to comment on Issues 1 and 2 formulated by the learned Counsel for the Appellant.
It may be recalled that Issue I is whether the Appellant’ s right to fair hearing was breached by the High Court when it referred to evidence of the daughter of PW1 and PW2 who did not testify at the trial in its judgment.
I would like to say that the right to fair hearing in all judicial proceedings is so crucial and intrinsic that any breach thereof in respect of any party would render such proceedings null, void and of no use ab initio. The right is sine quanon in all judicial proceedings where the rights and/or obligation or the guilt of the Nigerian citizens are to be determined such that it was constitutionally guaranteed in Section 36(1) of the 1999 Constitution of Nigeria. Primarily, the right involves affording all the parties to the proceedings reasonable and equal opportunity of a hearing throughout the proceedings on the relevant issues which called for determination in their case. It also pertains to providing level playing field on which the judex has no interest whatsoever in the outcome of the contest before it. The right to fair hearing guaranteed by the Nigerian Constitution can be said to have derived from the twin rules of natural justice which in Latin language are “audi alteram partem” and nemo judex causa sua” which were mentioned and translated in the lead judgment.
The Courts have always been quick to intervene whenever it is shown that there was in fact a breach or denial of the right to fair hearing in any judicial proceedings on the part of any of the parties thereto. The judicial attitude in Nigeria has all along been that he who determines any matter or case without hearing both or any of the sides, though may have decided right, has not done justice in accordance with the Constitution and the law. Though the right to a fair hearing applies to all judicial proceedings, it is more pronounced and fundamental in criminal proceedings in which allegations of the commission of offence/s is/are made against citizens. This is because of the constitutional presumption of innocence in favour of the persons accused of the offence/s. So where a person charged with the commission of an offence before a Court of law says and shows that at any stage of the trial for the offence, he was denied the right to fair hearing, an appellate Court would not hesitate but would readily intervene by declaring such trial void ab initio. See:
OGBOH v. FRN (2002) 10 NWLR (774) 21;
BAKOSHI v. CHIEF OF NAVAL STAFF (2004) 15 NWLR (896) 268;
A.G. RIVERS STATE v. UDE (2006) 17 NLWLR (1008) 436.
The question that urges itself in this appeal on the issue is whether the Appellant has demonstrated from the record of the appeal that his right to fair hearing was at any stage of his trial, breached or denied by the High Court. It is not sufficient for the Appellant to merely allege that his right to fair hearing was breached during trial, but owes the legal duty to show from the record of the trial, that the right was in fact and deed, breached in the course of the proceedings.
The hard bone of the Appellant’s allegation or assertion of the breach of his right to fair hearing is that the High Court in its judgment had relied on evidence which was not before it to convict and sentence the Appellant for the offences charged. Reliance was placed on the statement by the High Court in its judgment which appears at page 45 lines 14-16 of the record of appeal which was set out in the lead judgment. It is expedient to set it out here again and is thus:-
“The factual setting in this case as demonstrated by the evidence of PW1 and PW2 and their daughter is that they were having dinner …”
I should point out at the onset that the parties to the appeal are one that the list of witnesses filed along with the charge before the High Court did not include the name of PW1 and PW2’s daughter. Also that the said daughter of PW1 and PW2 did not appear or give evidence at the trial of the Appellant because there is no record of such appearance or testimony in the record of the appeal. In these circumstances, it is quite clear that none of the parties can seriously make any claim on the denial of the fair hearing in respect of the admission of the evidence that was not before the High Court. So there was no admission of such evidence which can properly come within the purview of Section 227 of the Evidence Act to be called wrongful admission of evidence at the trial. There must first be admission of the evidence before it could be termed or qualified as wrongful or otherwise. The pith of the Appellant’s complaint is that the High Court relied on the evidence aforesaid to convict him for the offences he was charged with. However the portion of the High Court judgment set out above did not bear out the allegation that the High Court relied on such evidence to convict the Appellant. That statement by the High Court cannot and should not be taken and looked at in isolation and out of the context of the issue being dealt with by the High Court when it was made.
As borne out by the preceding and later portions of the High Court judgment, it was considering the issue of the necessity or otherwise of an identification parade raised by the Appellant’s Counsel at the trial. It was for that purpose only that the High Court made reference to the fact/s of the case of the Appellant who the evidence of PW1 and PW2 show that he along with others met them (PW1 and PW2) and their daughter “when they were having dinner” on the date material to the charges against him. There is no dispute that the PW1 and PW2, who were victims of the offences against the Appellant, had maintained in both their statements to the police and evidence at the trial that at the material time, they were having dinner with their daughter when the Appellant and the others broke into their house and robbed them at gun point. So the presence of the daughter at the scene and material time cannot seriously be said not to be evidence before the High Court or that the Appellant was not heard on it. The allegation of the breach of the Appellant’s right to fair hearing in respect of such evidence is plainly untenable. But that apart, can the statement by the High Court amount to reliance on the evidence of the daughter of PW1 and PW2 to convict the Appellant on the charges against him?
In simple language, to rely on means to depend on or cannot survive or stand without. In this context, has the Appellant demonstrated in this appeal that the High Court depended on the evidence of PW1 and PW2’s daughter to convict him for the offences he was charged with? Apart from reference to the statement quoted earlier by the High Court in the course of its judgment, there has been no further record to show that the High Court assessed or even made reference to the said evidence as a reason for the decision to convict the Appellant on any of the charges against him. Like I have stated before now the statement by the High Court was only an observation or remark on the facts of the case before it in respect of the issue of identification parade raised by the Appellant.
That statement was only made in passing and did not form part of the reasons for the conviction of the Appellant. It cannot therefore be used and relied on by the Appellant to challenge the validity of the conviction. See DANGOTE v. C.S.C. PLATEAU STATE (2001) 9 NWLR (717) 132. It is not every observation, comment or statement made by a Court in the course of writing its judgment or decision in a case that can properly form the basis of a sustainable complaint against that judgment or decision on appeal. See
In the result, I agree with the lead judgment that the Issue 1 is bereft of merit for the above and more pungent reasons set out therein. It is resolved against the Appellant.
In Issue 2, the Appellant had complained that it was necessary to conduct an identification parade since he was not arrested at the scene of the offences he was charged with. All I need say here is that the unequivocal and unchallenged evidence of PW1 and PW2 had positively identified the Appellant as one of the persons who broke into their house and robed them at gun point on the date of the incident. The evidence of PW1 and PW2 did not suggest that they had any doubt whatsoever about the identity of the Appellant as one of the persons who robbed them. Even under cross-examination, PW1 remained unshaken that he had looked at the Appellant during the robbery and promptly recognized and identified him at the police station. PW2 on her part solidly saw and maintained under cross-examination that it was the Appellant who held her at gun point, took her to her room and back to the sitting room and that “he wore a black dress and I looked at his face very well.” She also identified him immediately she saw him at the police station.
Then where was the Appellant’s confessional statement which is in tandem and support of the recognition and identification of the Appellant as one of the persons who robbed PW1 and PW2. On the face of the above cogent and forceful evidence, no doubt existed about the identity of the Appellant that would have made an identification parade necessary in the circumstances. I should point out that an identification parade becomes necessary only where the eyes of witnesses are not able to perform their function of clearly seeing the accused person/s in the act of committing the offence. Similarly, an identification parade will be necessary if from the evidence of eye witnesses, the eyes reflect some doubt on the mind of such witnesses as to whether it was the accused person/s who committed the offence. Where however there is unequivocal and consistent evidence, as in the Appellant’s case, on the part of the witnesses that they saw the accused committing the offence, an identification parade becomes unnecessary. Once the eye lenses of witnesses record the identity of an accused person positively and accurately committing an offence, then reasonable doubt is thereby excluded and an identification parade becomes superfluous and so unnecessary. See:
ONUOHA v. STATE (1998) 5 NWLR (548) 118 at 134-5;
BARUWA v. STATE (1996) 7 NWLR (460) 302;
ANYAWU v. STATE (1985) 5 NWLR (5) 612;
OKAFOR v. STATE (2006) 4 NWLR (969) 1;
For these and the other reasons stated in the lead judgment I too find no merit in the Issue 2 formulated for the Appellant and resolve same against him.
In the final result, I am in complete agreement that the appeal for the above and more detailed reasons given in the lead judgment, is wanting in merit. It fails and is dismissed by me in terms of the lead judgment.
PAUL ADAMU GALINJE, J.C.A.: I have read before now the judgment just delivered by my learned brother, Bada, JCA and I agree that the appeal lacks merit and should be dismissed. Accordingly same is dismissed by me.
Appearances
A. R. FATUNDE For Appellant
AND
KEMI BALOGUN For Respondent
