ONYEMECHI NWEKE NWENEKE v. THE STATE
(2019)LCN/12811(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 6th day of March, 2019
CA/MK/309C/2017
RATIO
COURT AND PROCEDURE: TRIAL WITHIN TRIAL
“A trial within trial is a distinct and different proceeding to determine the admissibility of an alleged confessional extra judicial statement, which an accused person alleges was not voluntarily made. In Dibia v State (2012) LPELR-8564(CA), this Court expounded: But what in essence is a “trial within trial” in ADELARIN LATEEF & ORS V. THE FEDERAL REPUBLIC OF NIGERIA (2010) 37 W.R.N. 85 page 107, lines 26-42…” PER ONYEKACHI AJA OTISI, J.C.A.
CRIMINAL LAW: INGREDIENTS OF THE OFFENCE OF ARMED ROBBERY
“…1. That there was a robbery or series of robberies. 2. That the robbery or each robbery was an armed robbery.
3. That the accused was the robber or one of those who took part in the armed robbery; Orisa v. State (2018) LPELR-43896(SC); Dawai v. State (2017) LPELR-43835(SC); Awosika v. State (2018) LPELR-44351(SC); Amos v. State (2018) LPELR-44694(SC); Afolabi v State (2013) 6-7 MJSC (PT 1) 1.” PER ONYEKACHI AJA OTISI, J.C.A.
EVIDENCE: CONFESSIONAL STATEMENT
“The established standard of proof and circumstances as to when an uncorroborated confessional statement can be admitted in evidence were not satisfied. The case of Nurudeen Bright v The State (2012) 1 SC (PT II) 47, and other judicial authorities, were relied on to submit that a Court can convict an accused on his uncorroborated confessional statement when the following cumulative conditions are satisfied;
a. There is something outside the confession which shows that it may be true.
b. The statements contained therein are likely to be true.
c. The accused had the opportunity to have committed the offence.
d. The facts stated by the accused are consistent with other facts which have been ascertained and established at trial.”PER ONYEKACHI AJA OTISI, J.C.A.
JUSTICES
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
ONYEKACHI AJA OTISI Justice of The Court of Appeal of Nigeria
JOSEPH EYO EKANEM Justice of The Court of Appeal of Nigeria
Between
ONYEMECHI NWEKE NWENEKE Appellant(s)
AND
THE STATE Respondent(s)
ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading Judgment):
This appeal is against the judgment of the Benue State High Court sitting at Makurdi, presided over by J.M. Ijohor J delivered on March 30, 2017 wherein the Appellant was convicted of armed robbery and sentenced to death by hanging.
The facts leading to this appeal, in summary, are as follows: The Appellant, alongside one David Pius Kelvin, were charged with the offences of criminal conspiracy and armed robbery contrary to Section 6 (b) and 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act, CAP R11, LFN 2004, with the Appellant standing trial as the 2nd accused person, as follows:
COUNT 1
That you, David Pius Kelvin (M) and Onyemechi Nweke Nweneke (M) on or about the 26th/02/2011 at North-Bank, around Court 5 opposite Musa Plato Mega Station, Makurdi within the jurisdiction of this Honourable Court conspired with others now at large to do an illegal act to wit: you agreed to rob one Sunday Igba of his vehicle Golf 3 with registration No. XF 538 MKD, and money in the sum of N16, 300. 00, and his Nokia handset, which act was done in pursuance of agreement and you thereby committed an offence punishable under Section 6 (b) of the Robbery and Fire-Arms (Special Provisions) Act, Cap. Rll, Laws of the Federation of Nigeria 2004.
COUNT 2
That you, David Pius Kelvin (M) and Onyemechi Nweke Nweneke (M) on or about the 26th/02/2011 at North-Bank, around Court 5 opposite Musa Plato Mega Station, Makurdi within the jurisdiction of this Honourable Court, did commit armed robbery, in that, you armed yourselves with a gun and army jack-knife and you robbed Sunday Igba of a Vehicle Golf 3 with registration No. XF 538 MKD, and of his money amounting to N16,300.00 and a Nokia handset and you thereby committed an offence punishable under Section 1 (2) (a) of the Robbery and Fire-arms (Special Provisions) Act, Cap. Rll, Laws of the Federation of Nigeria.
The 1st accused person, who jumped bail, did not appear for his trial. The Appellant pleaded not guilty to the charges and the case proceeded to trial. In proof of their case, the Respondent called two witnesses; the victim of the alleged robbery, one Sunday Igba who testified as PW1 and the Investigating Police Officer, Inspector Ambrose Umal, who testified as PW2. The Respondent also tendered three documents; the extra judicial statement of PW1, Exhibit A; the confessional statement of the Appellant, which was admitted as Exhibit B following a trial within trial; and the extra judicial statement of PW2.
PW1, a taxi driver, testified that he was forcefully dispossessed of a Golf 111 vehicle with registration number XF 538 MKD on 26/2/2011, his Nokia handset and the sum of N16, 300.00 by five persons with offensive weapons. One of them, the 1st accused person, had hired him for transportation to the place where he was robbed by the 1st accused and four others who had been invited by the 1st accused person. The said vehicle was recovered by a team of highway policemen on 26/2/2011 with three occupants. One of the occupants escaped, leaving two, being the 1st accused person and the Appellant. The Appellant called one witness, his mother, who testified as DW1 and also testified in his own defence as DW2. The Appellant and his witness completely denied the account of the prosecution. They testified that the Appellant had spent 26/2/2011 in the market with his mother.
In the evening, they heard noise outside. The Appellant went to investigate and was arrested by the police who were on a raid. When the Appellant and his mother were unable to provide the gratification demanded by the police, the Appellant was arraigned on the offences as charged. At the conclusion of hearing, the trial Court convicted and sentenced the Appellant to death. Aggrieved by his conviction and sentence, the Appellant lodged the instant appeal by Notice of Appeal filed on 29/6/2017 on eight grounds of appeal.
The parties exchanged Briefs of Argument, pursuant to the Rules of Court. The Appellant?s Brief was settled by Chief Dr. (Mrs.) Caroline Mbafan Ekpendu and filed on 8/1/2018. The Respondent?s Brief, which was settled by Mrs. Mary E. Ochenjele, Deputy Director, Public Prosecution, Ministry of Justice, Makurdi, Benue State, was filed on 2/2/2018. The Appellant?s Reply Brief was filed on 16/2/2018. The Briefs of Argument were adopted by respective Counsel for both parties on 23/1/2019.
The Appellant distilled the following two issues for determination out of the eight grounds of appeal:
1. Whether the Respondent proved the offence of armed robbery against the Appellant beyond reasonable doubt to warrant the conviction and sentencing to death by the lower Court (Grounds 1, 2, 3, 4, 7 & 8).
2. Whether Exhibit B, the alleged confessional statement made by the Appellant was admissible in evidence and or of any evidential value before the lower Court (Grounds 5 & 6).
Mrs. Ochengele for the Respondent adopted the issues as framed by the Appellant. In my considered view, the issues as distilled by the Appellant are entwined and shall therefore be resolved together.
The Appellant’s Counsel submitted that the law is settled that proof of the commission of any criminal offence, however simple the offence might be, must be beyond reasonable doubt, which must exclude all reasonable inferences. The burden is on the prosecution to prove the criminal allegations beyond reasonable doubt. Reliance was placed on the decision in Adebiyi v The State (2013) 7 NWLR (PT 1354) 597; Ogisugo v State (2015) All FWLR (PT 792) 1602 at 1626. The provisions of Section 138 of the Evidence Act were also relied on. Relying on a number of decided authorities, including Johnson v The State (2013) 3 NWLR (PT 1340) 78; Okeke v State (1995) 4 NWLR (PT 392) 676, it was submitted that ingredients required to be proved in a charge of armed robbery were:
a. That there was a robbery or series of robberies
b. That the robbers were armed with offensive weapons
c. That the accused was among the robbers.
The fact that there was a robbery and that the robbers were armed with offensive weapons was never in issue before the lower Court. The question was whether the prosecution successfully proved beyond reasonable doubt that the Appellant was among the robbers. The evidence adduced before the trial Court was relied on to submit that the victim, PW1, never linked the Appellant to the armed robbery. The evidence of the Appellant denying involvement in the incident was not challenged by the prosecution under cross examination and remained uncontroverted. It was argued that the prosecution must be taken to have conceded to the evidence of the Appellant on this point, relying on Oforlete v The State (2000) 12 NWLR (PT 681) 415 at 436; Gaji v Paye (2003) 8 NWLR (PT 823) 583. The police highway patrol officer, Emmanuel Wada that arrested the Appellant in possession of the stolen vehicle did not testify.
It was argued that his evidence was necessary and mandatory to sustain the charge against the Appellant. It was submitted, relying on Opayemi v State (1985) 6 SC 352, that although the prosecution was not obliged to call all witnesses interviewed, it had a duty to call such witnesses as are necessary to establish its case and prove guilt of the accused person. It was submitted that the failure of the prosecution to call the said Emmanuel Wada or any member of his team was fatal to the case of the prosecution. The prosecution could not be said to have proved her case beyond reasonable doubt. It was further submitted that the failure of the prosecution to call Emmanuel Wada or any member of his team to testify in the case, without any cogent reason, amounted to withholding evidence. The Court was urged to invoke the provisions of Section 167 (d) of the Evidence Act, 2011 and hold that if any of them had been called to testify, their evidence would have been unfavourable to the prosecution. Reliance was placed on Oguonzee v State (1998) 4 SCNJ 226 at 253; Onwujuba v Obienu (1991) 1 NSCC 492 at 497.
It was also contended that since the prosecution did not investigate the defence of alibi raised by the Appellant nor challenge the defence under cross examination, the Appellant?s defence ought not to have dismissed.
The prosecution as well as the lower Court had relied on the confessional statement of the Appellant to ground his conviction and sentence. It was submitted that the said confessional statement was wrongly admitted by the lower Court. That assuming without conceding it was admissible, the said confessional statement was not corroborated and did not meet the legal standard required for it to warrant the conviction of the Appellant for armed robbery. The proceedings at the trial as well as the trial within trial were relied on to submit that the prosecution woefully failed to prove that the confessional statement of the Appellant was made voluntarily and not under duress and compulsion. The detective Emmanuel Saka, who took the statement of the Appellant, did not testify. All the allegations of torture and brutality made by the Appellant were against him and not against PW2. Secondly, the Superior Police Officer, ASP Samuel Kwah who was alleged to have endorsed the confessional statement and before whom the Appellant was alleged to have adopted the statement did not testify.
Thirdly, the established standard of proof and circumstances as to when an uncorroborated confessional statement can be admitted in evidence were not satisfied. The case of Nurudeen Bright v The State (2012) 1 SC (PT II) 47, and other judicial authorities, were relied on to submit that a Court can convict an accused on his uncorroborated confessional statement when the following cumulative conditions are satisfied;
a. There is something outside the confession which shows that it may be true.
b. The statements contained therein are likely to be true.
c. The accused had the opportunity to have committed the offence.
d. The facts stated by the accused are consistent with other facts which have been ascertained and established at trial.
It was submitted that these conditions were not satisfied by the prosecution at trial. The contents of the confessional statement contradicted the oral evidence. It was alleged in the confessional statement that the father of the accused person was an army officer who died in 2009.
The evidence of DW1 and DW2, which was not challenged, was that the father of the Appellant is a Medical Doctor, who is alive and working in Naka, Gwer West Local Government of Benue State. He had visited the Appellant during the period of his incarceration. Further, in the alleged confessional statement, the weapon used in the robbery was said to be an army jack knife. On the contrary, the stance of both PW1 and PW2 was that guns were used during the robbery incident. There was no evidence led on the usage of a jack knife during the robbery incident as the weapon of robbery. It was submitted that the contradictions were fatal to the case of the prosecution. The Court was urged to hold that the confessional statement was suspect and incapable of grounding the conviction of the Appellant. It was further argued that the confessional statement did not corroborate the fact that the Appellant was apprehended with a taxi cab Golf 3 car sky blue in colour with three occupants. The confessional statement was a departure from the prosecution’s case. The Court was urged to hold that the confessional statement was not admissible and had no evidential value.
The Court was finally urged to allow the appeal and discharge and acquit the Appellant.
In reply, the Respondent contended that the charge had been proved beyond reasonable doubt. The term “proof beyond reasonable doubt” is not susceptible to any ungainly and abstract construction or understanding. On the meaning of the phrase: proof beyond all doubt, the case of State v Onyeatoelu (2002) 3 LRCNCC 236 at 279 was cited and relied upon. It was argued that the case of the prosecution was straight forward. The victim, PW1, had in his evidence identified the 1st accused person and also the Appellant as one of the persons who robbed him on 26/2/2011. PW2 had testified that the Appellant was arrested in possession of the same vehicle which was snatched from PW1 by the armed robbers on 27/2/2011. It was submitted that in addition to the evidence of PW1 and PW2, the Appellant, DW2, also admitted in his confessional statement, Exhibit B that he and other persons stole the vehicle in issue. It was submitted that the evidence as corroborated, pointed to the guilt of the Appellant. The provisions of Section 167 (d) of the Evidence Act, 2011 were also relied on.
It was submitted that the learned trial judge was right to have returned a verdict of guilt in the Appellant, being guided by the facts and surrounding circumstances.
It was further submitted that the evidence of PW1 and PW2 did not amount to hearsay evidence, as had been argued by the Appellant, citing Section 167 of the Evidence Act. On the judicial interpretation of the said provisions, the case of Okoro v. State (1998) 12 SCNJ 84. The evidence was narrative of the information received from the patrol team that arrested the Appellant and also of the various roles they played in the investigation. It was conceded that PW1 and PW2 relayed the circumstances of the arrest of the Appellant by the patrol team, but argued that the investigation of the case against the Appellant commenced only upon being handed over to PW2.
The Court was also urged to hold that the trial court rightly discountenanced the defence of alibi which was raised by the Appellant during trial. The alibi was belatedly raised, defeating the requirement that it should be investigated. The case of Udo Ebre v State (2005) 4 LRCNCC 212 was cited and relied on. The Court was also urged to discountenance the contention of the Appellant that the failure of prosecution to call Emmanuel Wada or any member of his team to give evidence in this case amounted to withholding evidence. The Appellant in Exhibit B had not denied the commission of the offence. The circumstances surrounding his arrest in possession of the stolen vehicle was therefore not a live issue, requiring explanation by the police team that the first arrested him. The failure to call Emmanuel Wada to testify did not amount to withholding evidence as his evidence was not vital to the case of the prosecution.
It was submitted that the learned trial Judge had rightly admitted the confessional statement, Exhibit B. Reliance was also placed on the case of Joe Iga & Ors v. Ezekiel Amakiri & Ors (1976) 11 SC II at 70. It was submitted that Exhibit B was corroborated and thereby met the legal standard required for it to warrant the conviction of the Appellant of the offence of armed robbery. It was proved in the trial within trial to be a voluntary confession of guilt by the Appellant and did not need to be corroborated, relying on Nurudeen v The State (Supra) cited by the Appellant.
In the alternative that outside the confession in Exhibit ‘B’, the Golf Car recovered from the Appellant and mentioned in the confession in Exhibit B, was enough corroboration. All the facts stated in Exhibit B by the Appellant were consisted with the charge of armed robbery. It was also argued that whether it was a gun or a jack knife that was used for the robbery, the learned trial Judge had rightly held that both items constitute firearms under the Firearms Act. The Court was urged to hold that Exhibit B constituted admissible evidence and had the evidential value to ground the conviction of the Appellant. It was finally submitted that the prosecution discharged the burden of proving the case against the Appellant beyond reasonable doubt and the trial Court rightly convicting the Appellant. The Court was urged to dismiss the appeal.
The Appellant in the Reply Brief, in the main, reargued the appeal and finally urged the Court to discountenance the arguments in Respondent?s Brief of Argument. This is not the purpose of a reply brief. A reply brief, by the provisions of Order 19 Rule 5 of the Court of Appeal Rules, 2016, should deal with all new points arising from the respondent?s brief. As succinctly stated by the Supreme Court, per Augie, JSC in Idagu v. State (2018) LPELR-44343(SC) at pages 30-31 of the E-Report:
‘A reply brief is limited to finding answers to the questions raised in the Respondent’s brief, which the Appellant has not addressed or dealt with in the main brief. It is not the forum for the Appellant to strengthen his main Brief by repeating or expanding the arguments contained therein. FRN V. Iweka (2011) LPELR-9350(SC). In this case, all the arguments in violation of this principle in the Reply Brief, will be discountenanced.’
See also Aworokin & Ors v Adeniran (2010) LPELR-8595(CA). The arguments in the Reply Brief, which are contrary to the provisions of the Rules of this Court, shall therefore be discountenanced.
Resolution
As rightly submitted by the Appellant, the well-established position of the law is that in order to ground a conviction for the offence of armed robbery, the prosecution must prove, beyond reasonable doubt, the following:
1. That there was a robbery or series of robberies.
2. That the robbery or each robbery was an armed robbery.
3. That the accused was the robber or one of those who took part in the armed robbery; Orisa v. State (2018) LPELR-43896(SC); Dawai v. State (2017) LPELR-43835(SC); Awosika v. State (2018) LPELR-44351(SC); Amos v. State (2018) LPELR-44694(SC); Afolabi v State (2013) 6-7 MJSC (PT 1) 1.
In the instant case, there was an armed robbery. The evidence of PW1, the victim was not challenged on this score. PW1 testified that he was robbed and dispossessed of a Golf 111 vehicle with registration number XF 538 MKD on 26/2/2011, his Nokia handset and the sum of N16, 300.00 by five armed persons. Two persons were apprehended in possession of the said vehicle on 27/2/2011 and charged.
The charge faced by the Appellant was that the victim was robbed with a gun and an army jack knife. The contention that there was a contradiction as to whether the victim, PW1 was actually robbed with a gun or an army jack knife is, in my considered view, immaterial. As succinctly stated by the Supreme Court, per Okoro, JSC in Dawai v. State (supra) at page 9 of the E-Report:
‘By Section 1(2) of the Robbery and Firearms (Special Provisions) Act 1990, armed robbery takes place where at the time of the robbery, the offender is armed with any firearms or any offensive weapon or is in company with any person so armed at or immediately before or immediately after the robbery, and the said offender wounds or uses any personal violence to any person.’
The learned trial Judge rightly found that, pages 136 ? 137 of the Record of Appeal:
‘An offensive weapon includes any article made or adapted for use for causing injury to the person or intended by the person having it for such use by him and it includes an air gun, air pistol, bow and arrow, spear, cutlass, dagger or any piece of wood, metal, glass or stone capable of being used as an offensive weapon. See the case of Kayode Vs The State (2012) LPELR 7999.
A jack knife therefore comes under the definition of Arms under the Armed Robbery and Fire Arms Act.?
Therefore, PW1 was robbed with an offensive weapon contrary to the provisions of the Robbery and Firearms (Special Provisions) Act
The controversy at hand is whether the Appellant was in fact one of the armed robbers who robbed the victim, PW1 on 26/2/2011. This controversy must be settled, within our criminal jurisprudence, beyond reasonable doubt; Ikaria v The State (2012) LPELR-15533(SC).
It is an integral element of our criminal jurisprudence that the burden on the prosecution to prove the guilt of an accused person in a criminal trial must be discharged beyond reasonable doubt. Explaining implications of the phrase proof beyond reasonable doubt, Ogunbiyi, JSC said in Uche v State (2015) LPELR-24693(SC), pages 22-23 of the E-Report:
Reasonable doubt which will justify an acquittal is a doubt based on reason arising from evidence or lack of it. It is a doubt which a reasonable man/woman might entertain and which is distinct from fanciful or imaginary doubt. In other words, it is one which would cause a prudent and ordinary person to be cautious and hesitate before acting in matters of importance, see Jua v. State (2010) 4 NWLR (Pt.1184) P. 217 at 243. See also Olayinka v. State (2007) 9 NWLR (Pt. 1040) P.561 at 586 at 586, and Jibril v. Mil Admin Kwara State (2007) 3 NWLR (Pt.1021) P.357 at 383.Contributing to the said decision, Kekere – Ekun, J.S.C. opined, pages 25 ? 26 of the E-Report:
“Proof beyond reasonable doubt does not mean proof beyond the shadow of a doubt. In the case of Oseni vs The State (2012) LPELR – SC.14/2011. His Lordship Adekeye, JSC stated thus:
“Broadly speaking proof beyond reasonable simply means the prosecution establishing the guilt of the accused person with compelling and conclusive evidence. It means a degree of compulsion which is consistent with a high degree of probability. In the case ofMiller vs Minister of Pensions (1947) 2 ER p.372, it was held that proof beyond reasonable doubt does not mean proof beyond all shadow of doubt and if the evidence is strong against a man as to leave only a remote probability in his favour which can be dismissed with the sentence “of course, it is possible but not in the least probable, the case is proved beyond reasonable doubt.” Bakare v. State (1987) 1 NWLR (Pt. 52) p.579.”
Similarly, in Abeke v. The State (2007) ALL FWLR (Pt.366) 644 @ 659 E-F , Tobi, JSC opined thus:
“Reasonable doubt is founded upon reason which is rational, devoid of sentiment, speculation or parochialism. The doubt should be real and not imaginative.
The evidential burden is satisfied if a reasonable man is of the view that from the totality of the evidence before the Court, the accused person committed the offence. The proof is not beyond all shadow of doubt. There could be shadows of doubt here and there but when the pendulum tilts towards and in favour of the fact that the accused person committed the offence, a Court of law is entitled to convict even though there are shadows of doubt here and there.”
Thus, proof beyond reasonable doubt does not mean proof to a scientific certainty per Muhammad, JSC in The State v. Azeez (2008) 4 S. C. 188. Neither does it require absolute certainty as should be in heavenly trials, Shande v. State (2005) 12 MJSC 152, (2005) LPELR-3035(SC) at page 19 of the E-Report. See also Alufohai v State (2014) LPELR-24215(SC); Ogundiyan v. State [1991] 1 NSCC 448, (1991) LPELR-2333(SC) at pages 13 -14 of E-Report; John Agbo v. State (2006) 1 S.C. (PT. II) 73, (2006) LPELR-242(SC) at page 48 of the E-Report. Proof beyond reasonable doubt therefore simply means that there is clear, convincing and credible evidence upon which the Court can safely convict, even if it is upon the evidence of a single witness. The law is quite settled that the evidence of one solitary witness is enough, if his or her evidence proves the essential issue in dispute, and, if he or she is believed; Adelumola v State (1988) 1 NSCC 165; Afolalu v State (2010) 6-7 MJSC 187; Idiok v. State (2008) 6 MJSC 36; (2008) LPELR-1423(SC). The evidence of one witness of truth can result in the conviction of an accused person, unless it is an offence for which corroboration is statutorily required. Therefore, where all the ingredients of an offence have been clearly established and proved by the prosecution, then the offence is proved beyond reasonable doubt; Osetola v. State (2012) LPELR-9348(SC); Alabi v. State (1993) 7 NWLR (PT 307) 511 at 523; Ajayi v. State (2013) 2-3 MJSC (PT. 1) 59.
While the prosecution must prove the guilt of an accused person, there is no corresponding burden laid on the accused person to prove his innocence, Williams v The State (1992) LPELR-3492(SC); Abidoye v. FRN (2013) LPELR-21899(SC). An accused person is presumed to be innocent until his guilt of the offence is established, Section 36(5) Constitution of the Federal Republic of Nigeria, 2011, as amended. See also: Afolahan v. State (2017) LPELR-43825(SC).
In proving the guilt of an accused person, there are three main methods of proof:
1. His direct, positive and voluntary confessional statement;
2. Circumstantial evidence;
3. Direct oral evidence given by a victim or by a witness.
PW1 was the victim who unmistakably identified the 1st accused person at the police station as the person who hired him to convey him and his friends to a party. Regarding the Appellant, he said in evidence, page 65 of the Record of Appeal:
I know the 2nd accused. He was one of the people that were arrested with my vehicle.
Under cross examination, page 67 of the Record of Appeal, he said:
Saw the 2nd accused as one of the four that robbed me. I did not say so earlier because counsel was pestering me to give an answer so I did. The truth is it was dark and I could not see their faces clearly. I recognized instantly the person that waved the vehicle because he has (sic) approached me at the park.(Emphasis mine)
In his extra judicial statement, Exhibit A, PW1 also stated:
And if I see the person who chartered the vehicle, I can identify him, he is fair in complexion, tall and huge with mouth-starch (sic) and bears(sic), then he was wearing a black T-Shirt and black trouser. And on 28/2/2011 in the morning at the CID office Makurdi, I was shown two young men arrested in connection with the armed robbery, I identified the tall huge fair guy with mouthstarch(sic) and bears(sic) to be the one. That is all I know.
The evidence of PW1 would thus indisputably demonstrate that he did not categorically identify the Appellant as being at the locus criminis or as being one of the persons who robbed him.
PW2 was the IPO. He testified, page 69 of the Record of Appeal:
I know the accused person. On 27/3/2011 at about 3.00 hrs, I was on duty at the State C.I.D. Makurdi when a team of highway policemen led by Emmanuel Wada, arrested and brought to the State C.I.D., two persons who were seen in a Volkswagen car. They were stopped and question (sic) and could not satisfactorily prove the ownership of the vehicle. The Registration no. was XF 538 Mkd. This happened along Makurdi ? Lafia Road at Yilewata village.
The officers nearrated (sic) that it was on the 26/3/2011 that the suspects were actually arrested with the vehicle. They were three occupants in the vehicle. And because they could not give a satisfactory account of the vehicle, they were arrested. But one of them escaped leaving the other two that were eventually brought to the state C.I.D. when the case was handed over to me. When the case was handed over to me I detailed a member of my team Emmanuel Saka now an inspector of police to record their statements.
In his statement, Exhibit C, PW2 had given the date of the 1st accused person and the Appellant were apprehended to be 26/2/2011 and the date they were brought in to the State CID Makurdi to be 27/2/2011. These dates have been consistent in the evidence of PW1 and PW2. DW1 and DW2 also gave 27/2/2011 as the date the Appellant was apprehended. The evidence of PW2 confirmed that the Appellant was not arrested at the locus crimins, but he was said to have been arrested in the stolen vehicle.
The evidence of DW1, the Appellant?s mother, as well as the Appellant as DW2, was that the Appellant was arrested when the police raided the area near their residence at North Bank, Makurdi. They allege the police demanded for gratification before he could be released. When they were unable to meet the demand, the Appellant was charged for armed robbery. The prosecution had sought to tender an extra judicial statement alleged to have been made by the Appellant, DW2. He denied the voluntariness of the said extra judicial statement, leading to a trial within trial. The said statement was thereafter admitted as Exhibit B. I shall return to the issue of Exhibit B anon.
The evidence of the prosecution reveals that PW1 did not identify the Appellant as being one of the armed robbers. PW2, the IPO, did not effect his arrest in the stolen vehicle. Rather, the Appellant and the 1st accused person were said to have been arrested by a team of highway policemen led by one Emmanuel Wada. Emmanuel Wada did not testify. The learned trial Judge was of the view that the evidence of Emmanuel Wada was not vital to the case of the prosecution. With respect, this cannot be correct. The Appellant and his witness both denied that the Appellant was apprehended in the stolen vehicle.
Neither PW1 nor PW2 saw him in the stolen vehicle. The person who apprehended him or at least a member of the team of highway patrol policemen that apprehended him ought to have testified to state that the Appellant was indeed apprehended in the said stolen vehicle, more so in the light of his denial. Emmanuel Wada was therefore a vital witness.
The Appellant’s Counsel had also contended that the detective Emmanuel Saka, who took the statement of the Appellant, as well as the Superior Police Officer, ASP Samuel Kwa who was alleged to have endorsed the confessional statement and before whom the Appellant was alleged to have adopted the statement both did not testify. All the allegations of torture and brutality made by the Appellant were against Emmanuel Saka and not against PW2. In this regard, I note that the evidence of PW2, which was not challenged, was that he was in charge of the case. He detailed Emmanuel Saka to take the statements of the Appellant and the 1st accused person after they were apprehended. Upon volunteering a confessional statement, he took the Appellant to the Superior Officer ASP Sameul Kwa for endorsement. He identified the signatures of both Emmanuel Saka and ASP Samuel Kwa. In evidence at the trial within trial, PW2 said he was present when the statement was recorded and supervised what was going on, pages 70- 71 of the Record of Appeal. His evidence, which was not demolished in cross examination, was not hearsay. He was part of the process and could testify on what transpired in his presence. Emmanuel Saka and ASP Samuel Kwa were therefore, not vital witnesses.
Although it is not the position of the law that the prosecution must call all witnesses, it is mandatory for the prosecution to call every material witness in order to prove its case and also provide opportunity for the accused person to cross examine the witness;Idirisu v State (1967) LPELR-25489(SC). A material witness was described by the Supreme Court per Rhodes Vivour, JSC in Smart v State (2016) LPELR-40728(SC) at page 17 of the E-Report as follows:
“A vital witness is a witness whose evidence is very important, since this testimony decides the case either way. It follows that where the prosecution fails to call a vital witness, the prosecution’s case may crumble like a park of cards.”
See also: Ogudo v The State (2011) LPELR-860(SC); Alake v The State (1992) 11/12, SCNJ 177, (1992) 9 NWLR (PT 265) 260, (1992) LPELR-403 (SC). Emmanuel Wada or any member of the team that actually apprehended the Appellant in the stolen car ought to have testified. Notwithstanding, one must see if there is other evidence sufficient enough to ground the conviction of the Appellant.
The trial Court had admitted the extra judicial statement of the Appellant as Exhibit B. The Appellant argued that the said statement was inadmissible. At the trial within trial, the statement of PW1 had erroneously been shown to the Appellant as his own statement. The Record of Appeal at page 19 transcribed the relevant portion of the proceedings on 26/11/2014 as follows:
Eyiwola: This is the statement sought to be tendered in evidence is this the statement was cancelling(sic).
Accused: No this is not the statement was cancelling(sic)
Ekpendu: The statement shown to the accused person is the statement of Sunday Igba and not the statement of the accused.
Eyiwola: That was an error. I did not carefully look at the name on the statement.
Court: The statement of the accused person is in the Court; file since it was (sic) not been admitted in evidence.
In their written address in the trial within trial, the Appellant’s Counsel had argued that the said alleged confessional statement was not admissible. The learned trial Judge noted, page 80 of the Record of Appeal:
In the course of defence of the 2nd accused person in the trial within trial and at the point of his cross examination by the state counsel, he (state counsel Mr. Eyiwola) erroneously showed the 2nd accused person the statement of one Sunday Igba instead of the statement of the 2nd accused. Mr. Eyiwola did not correct the error by withdrawing the statement of Sunday Igba and producing and showing the 2nd accused person his statement. Which is the statement that was sought to be tendered in evidence on the 21/2/14. State counsel?s inability to suriftly(sic) correct the error has now led to two issues which have arisen at the close of the trial within trial:
(1) Whether the statement of the 2nd accused made on 28/2/2011 was voluntary or not.
(2) Whether the statement shown to the 2nd accused person said to be Exhibit A is the statement of the 2nd accused person said to have been voluntarily made.
Chief Dr. (Mrs.) Ekpendu for the Appellant had argued before the lower Court that the prosecution had failed in discharging the onus of proving that the statement was made voluntarily and that the act of showing the Appellant a different statement amounted to withholding evidence, relying on Section 167(d) of the Evidence Act, 2011. Ruling on this issue, the learned trial Judge held that the failure to show the Appellant the correct statement did not amount to withholding evidence. He further ruled that it was not established that the production of a wrong statement by the prosecution was deliberate and that the fact that the statement of the Appellant was not shown to him was not fatal to the case of the prosecution. The learned trial Judge then went on hold, page 81 of the Record of Appeal:
Although the ideal situation would have been for the 2nd accused to have identified the statement in the trial within trial however the statement that should have been shown to the accused is the same statement which was objected to by counsel to the accused as not having been made voluntarily. Even without showing the accused the statement or to put it another way whether the statement was shown to accused person or not, I would still be required or obliged or compelled to consider it since it was objected to in the course of tendering by counsel. In that regards, I am of the view that the fact that Exhibit A was shown to the accused person rather than his statement of 28/2/11 is not crucial or fatal to the case of the prosecution.
I must confess that I find the procedure adopted by the learned trial Judge very strange indeed. The prosecuting Counsel admitted that a wrong statement was shown to the Appellant in error because he did not look at the name on the statement carefully. Surprisingly, the learned trial Judge proceeded to make a different case for the prosecution. The prosecution having admitted their error, failed to promptly apply to correct the error by showing the right statement to the Appellant before the learned trial Judge advanced an explanation not canvassed by the prosecution. The result of the procedure adopted at the trial within trial was that the Appellant was not shown the statement sought to be tendered as his confessional statement. The learned trial Judge acknowledged that the Appellant ought to have been shown the statement but then proceeded to hold that this failure was not fatal to the case of the prosecution. The learned trial Judge at the trial within trial advanced the explanation that the statement of the accused person objected to was in the Court?s file. The pertinent question is this: how does the Appellant know for certain that the statement he had objected to in the main trial was the same statement now sought to be tendered at the trial within trial, if the said statement was not shown to him?
I must agree with the Appellant that the learned trial Judge descended into the arena. Cautioning on similar approach by a trial Judge, the Supreme Court, per Fabiyi, JSC in Suberu v. State (2010) LPELR-3120(SC) at page 18 of the E-Report, said:
“A judge should not descend into the arena. A Court has no duty to bridge the yawning gap in the case of a party. This is more so since this is a criminal matter. Refer to Ajuwon v. Akanni (1993) 9 NWLR (Pt. 316) 182; Salubi v. Nwariaku (1997) 5 NWLR (Pt. 505) 422; Olorunfemi v. Ors. v. Asho & Ors. (1999) 1 NWLR (Pt. 585) 1 at 9.”
A trial within trial is a distinct and different proceeding to determine the admissibility of an alleged confessional extra judicial statement, which an accused person alleges was not voluntarily made. In Dibia v State (2012) LPELR-8564(CA), this Court expounded:
But what in essence is a “trial within trial” in ADELARIN LATEEF & ORS V. THE FEDERAL REPUBLIC OF NIGERIA (2010) 37 W.R.N. 85 page 107, lines 26-42, I had in considering the meaning and nature of a trial within trial stated as follows, “It does happen sometimes that an accused person facing a criminal trial in Court protests to the admission of a confessional statement allegedly made by him to the police on the ground that the said statement was not and could not have been voluntarily made by him having been obtained under duress or some threat of whatever nature or intimidation or actual physical torture to his person. It becomes at this stage necessary for the Court to temporarily halt the main trial upon which the accused person is facing trial and conducts a mini trial within the con of the main trial to try to determine the veracity of the account of the accused person as to whether his statement to the police was voluntarily made or not. It takes the form of a normal trial as witnesses are called to give evidence and are subject to cross examination by the other side. The Court proceeds to write a ruling either admitting the statement of the accused or rejecting same after which the normal trial temporarily suspended continues.”
It should therefore be borne in mind that the hallmark of a trial within trial is to try to determine whether an accused person’s confessional statement to the police of the commission of a crime was voluntarily made by the accused person or not.
The alleged confessional statement ought to be shown to the accused person at the trial within trial, being in itself a different mini trial. Where this was not done, as in this case, admittedly in error, it was improper for the learned trial Judge to have gone ahead to provide a reason for the error or failure of the prosecution. I agree with the Appellant?s Counsel that the statement was inadmissible. The statement was, in spite of this anomaly, admitted as Exhibit B and the trial Court relied thereon in convicting the Appellant.
It is the settled position of the law that where an accused person confesses to a crime he can be convicted on his confession alone if the confession is positive, direct and properly proved. A free and voluntary confession alone is sufficient proof of guilt without further corroboration to warrant conviction; Lasisi v The State (2013) LPELR-20183(SC), (2013) 2-3 MJSC (PT 11) 172; Mustapha Mohammed v. State (2007) 4 S. C. (PT. I) 1, (2007) LPELR-1894(SC; Dawa vs. State (1980) 8-11 SC 236; Osung v. State (2012) 6-7 MJSC (PT 11) 1; Galadima v. State (2012) 12 MJSC (PT 111) 190; Fatai v. State (2013) 2-3 MJSC (PT 1) 145. It is always desirable to have outside, the accused person’s confession to the police, some evidence no matter how slight, of the circumstances which made it probable that the confession was true; Akpan v. State (2008) 4-5 S. C. (PT. II) 1; Galadima vs. State (supra). Such further or additional evidence are applied to determine the weight to be attached to the confessional statement. As submitted by the Appellant’s Counsel, there are judicially established tests that are to be applied and or followed in determining the issue of weight to be attached to confessional statements, which were laid down in the case of R v. Sykes (1913) 8 Cr. App R 233 and approved in Kanu v. R (1962/55) 14 WACA 30. In these tests, the judge must ask himself these questions:
1. Is there anything outside the confession to show that it is true?
2. Is it corroborated?
3. Are the relevant statements made in it of facts, true as far as they can be tested?
4. Was the prisoner one who had the opportunity of committing the offence?
5. Is his confession possible?
6. Is the confession consistent with other facts which have been ascertained and have been proved?
The trial judge ought to be satisfied with the answers to these questions, whether or not the confessional statement is retracted; Mbang v. State (2012) 6-7 MJSC (PT IV) 119 at 148; Osetola v. State (2012) 6-7 MJSC (PT II) 41. If the confessional statement passes these test questions satisfactorily, a conviction founded on it would be invariably upheld, unless there are other grounds of objection. If the confessional statement fails to pass the tests, no conviction can properly be founded thereon; Edet Obosi v. The State (1965) NMLR 129; Jimoh Yesufu v. The State (1976) 6 SC 167; Egboghonome v. State (1993) 7 NWLR (PT. 306) 383; Lasisi v. State (supra). The issue now is whether the test questions were satisfactorily answered in this case.
The evidence of the prosecution was that the Appellant was apprehended inside the stolen vehicle in the company of the 1st accused person and one other person who absconded. PW1, the victim, did not unequivocally identify the Appellant as one of the robbers who attacked him. He said:
‘The truth is it was dark and I could not see their faces clearly.’
He could only positively identify the 1st accused person. PW2 saw the Appellant at the State CID after he was arrested. PW2 only got to see the Appellant after he had been apprehended by the team of highway patrol police officers led by Emmanuel Wada.
The Appellant and his witness as DW1 and DW2 gave a totally different account of the event leading to his arrest. DW2, in evidence, described himself as a sportsman who plays golf for a living, page 97 of the Record of Appeal. Both DW1 and DW2 said the Appellant, DW2, was with his mother, DW1, in the market that material day, and then at home with her between 7pm and 10pm. They both said that they heard some noise outside their residence at Yogbo Road, North Bank, Makurdi. The Appellant went to investigate the cause of the noise and was arrested by the police. He remained in custody because he and his mother had no money to give the police as gratification demanded by them. DW1 testified that the Appellant?s father lives at Naka but that they are separated. Under cross examination, the Appellant as DW2 said, page 98 of the Record of Appeal:
‘My father also came to visit me but he was not a regular visitor. He came only once in a while. But my mother came regularly. My father is a medical doctor. He has a clinic at Naka. When my father came to visit me I told him what happened to e(sic) and how I was arrested at home while I was with my mother.’
On the other hand, in the alleged confessional statement, the Appellant?s father was said to have served in the Nigerian Army but died in 2001. He and his mother were said to have packed out of the barracks on the death of his father and moved into a rented house at No. 6 Yogbo Road, North Bank. He was said to be a student at New Era Secondary School, North Bank, Makurdi.
The entire evidence given by DW1 and DW2 are radically different from the account given in the said statement.
There was no other evidence to ascertain whether the Appellant was indeed a student at New Era Secondary School, North Bank, Makurdi as stated in the statement. The evidence given by DW1 and DW2 regarding the Appellant?s father was not punctured. The Appellant?s father cannot both be a medical doctor in practice at Naka and also a deceased army officer at the same time. The only evidence that could have somewhat punctured their evidence would have been that of Emmanuel Wada or any officer on the team that actually apprehended the Appellant and the 1st accused person in the stolen vehicle. Unfortunately, none of the said officers testified in the proceedings. So, in effect, there was nothing outside the confession to show that it was true. I do not see how a conviction could be based thereon.
It was argued that the Appellant raised an alibi that he was in the market place with his mother, but that this was not investigated.
I do not regard this contention to have been seriously made. It is well settled that notice of intention to raise the plea of alibi must be given by the accused person at the earliest opportunity preferably, at the investigation stage to enable the prosecution investigation same. He must furnish his whereabouts and those with him at the material time of incident. Failure to investigate may lead to acquittal: Udo v State (2018) LPELR-43707 (SC); Uche v State (supra); Ozaki v. The State (1990) 1 NWLR (Pt. 124) 92, (1990) LPELR-2888 (SC); Njovens v. The State (1973) NMLR 331.
In this case, as rightly found by the trial Court, the Appellant raised the defence of alibi for the first time when he gave evidence in his own defence at the trial. He did not raise the defence of alibi at the earliest opportunity to enable the police investigate same.
The plea of alibi raised in the open Court while testifying in his defence cannot avail the Appellant.
Where, as in this case, the prosecution fails to call material witnesses; and there is neither direct circumstantial evidence pointing directly to the guilt of the accused, nor any confessional statement by the accused, which has satisfactorily scaled every prescribed test, the inevitable conclusion is that the standard of proof beyond reasonable doubt has not been met; Alabi v State (1993) LPELR-397(SC); Ikaria v State (supra); Dibie v The State (2007) 3 S.C. (PT 1) 176; Smart v State (supra); Shehu v The State (2010) LPELR-3041(SC). Therefore, on the state of the evidence adduced by the Respondent, I find and hold that I am unable to reach the conclusion that the standard of proof beyond reasonable doubt has been met by the Respondent in this case. The issues for determination are thus resolved in favour of the Appellant.
There is merit in this appeal. It is therefore allowed. The conviction and sentence of the Appellant is hereby set aside. The Appellant is accordingly discharged and acquitted.
JOSEPH TINE TUR, J.C.A.: I had the privilege of reading an advance copy of the ?judgment? of my learned colleague, Otisi, JCA that has been rendered in respect of this appeal. I shall head this determination an ?opinion? to conform with the provisions of Section 294(2)-(3) and 318(1) of the Constitution of the Federal Republic of Nigeria, 1999 as altered which provides as follows: –
‘294 (2) Each Justice of the Supreme Court or of the Court of Appeal shall express and deliver his opinion in writing, or may state in writing that he adopts the opinion of any other Justice who delivers a written opinion:
Provided that it shall not be necessary for the Justices who heard a cause or matter to be present when judgment is to be delivered and the opinion of a Justice may be pronounced or read by any other Justice whether or not he was present at the hearing.
(3) A decision of a Court consisting of more than one Judge shall be determined by the opinion of the majority of its members.
318(1) In this Constitution, unless it is otherwise expressly provided or the con otherwise requires:-
‘Decision’ means, in relation to a Court, any determination of that Court and includes judgment, decree, order, conviction, sentence or recommendation.’
Any ‘determination’ in relation to the Court of appeal under Sections 294(2)-(3) and 318(1) of the Constitution is either a ‘decision’ or an ‘opinion’. That is the legislative intention.
I may adopt the reasoning of any of my colleagues or express an independent ‘opinion’ by virtue of the provisions of Section 294(2) of the Constitution. I see no need for holding a conference with other Justices that heard argument in this appeal since I am not bound by the ‘judgment’, ‘decision’, or ‘opinion’ of the other Justices though I could adopt their opinions or decisions as mine. The determination of the dispute or controversy in the Court below was pursuant to the provisions of Section 36(1) and 294(1) of the Constitution which reads as follows: –
’36(1) In the determination of his civil rights and obligations, 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 a manner as to secure its independence and impartiality.
294(1) Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.
The condition for the rendering of a decision by ?Every Court established under this Constitution? within the time stipulated in Section 294(1) of the Constitution is omitted in Section 294(2) of the Constitution. Appeals are heard and determined in the Court of Appeal on briefs of argument not oral or documentary evidence. That is why the record of appeal is to be accompanied with briefs of argument. The record of appeal is defined in Order 1 Rule 5 of the Court of Appeal Rules, 2016 to mean: –
‘…. the aggregate of papers relating to an appeal including the pleadings, proceedings, evidence and judgments proper to be laid before the Court on the hearing of the appeal.’
Order 8 Rules 7 and 10(1)-(3) of the Court of Appeal Rules, 2016 provides the minimal contents of an appellate brief. An ?appellate brief? is defined in Black?s Law Dictionary, 9th edition, page 218: –
Appellate Brief: – A brief submitted to an appeals Court; specifically, a brief filed by a party to an appeal pending in a Court exercising appellate jurisdiction. The brief may be filed for an individual party or on behalf of two or more parties. ? Also termed appeal brief. (Cases: Appeal and Error, 756; Criminal Law, 1130; Federal Courts, 712):
‘An appellate brief is a written argument in support of or in opposition to the order, decree, or judgment below.’
Frederick Bernays Wiener, Briefing and Arguing Federal Appeals, 37 (Rev. edition, 1967).’
The purport of these innovations by the Rules Maker in the Court of Appeal Rules, 2016 can be seen in the provisions of Order 4 Rule 9(1)-(2) of the Rules which provides as follows:-
9(1) On the hearing of any appeal, the Court may, if it thinks fit, make any such order(s) as could be made in pursuance of an application for a new trial or to set aside a verdict, finding or judgment of the Court below.
(2) The Court shall not be bound to order a new trial on the ground of misdirection, or of the improper admission or rejection of evidence, unless in the opinion of the Court some substantial wrong or miscarriage of justice has been thereby occasioned.
The power of the Court of Appeal to interfere with the decision or verdict of the Courts below is limited to where the appellant has shown that the Court committed a substantial wrong or that the decision or verdict occasioned a miscarriage of justice. Where an Appellant(s) is able to show that the decision of the Court below occasioned a substantial wrong or led to a miscarriage of justice, the remedy lies in the provisions of Order 4 Rule 9(3) of the Court of Appeal Rules, 2016 to wit: –
9(3) A new trial may be ordered on any question without interfering with the finding or decision on any other question; and if it appears to the Court that any such wrong or miscarriage of justice as is mentioned in Sub-rule (2) of this Rule affects part only of the matter in controversy or one or some only of the parties, the Court may order a new trial as to the party only, or as to that party or those parties only, and give final judgment as to the remainder.?
The Court of Appeal is to apply the ‘Blue Pencil Test’ or ‘Blue Pencil Rule’ to the part of the proceedings that the appellant has shown there is substantial wrong or miscarriage of justice and the Court is to give final judgment as to the remainder? of the admissible evidence to the party or parties that deserves the final decision of the Court. A ‘final judgment’ or a ‘final decision’ is defined in Black’s Law Dictionary (ante) at page 919 as follows: –
Final Judgment ? A Court?s last action that settles the rights of the parties and disposes of all issues in controversy, except for the award of costs (and sometimes, attorney’s fees) and enforcement of the judgment.”
A ‘Judgment’ is defined at page 918 of Black?s Law Dictionary ante in the following manner:
1. A Court’s final determination of the rights and obligations of the parties in a case. The term judgment includes an equitable decree and any order from which an appeal lies. 2. An opinion delivered by a member of the appellate committee of the House of Lords; a Law Lord?s judicial opinion.”
In Osborn’s Concise Law Dictionary, 9th edition, a ?final judgment? is defined at page 168 as The final order that ends civil proceedings, usually made by the trial Court. A final judgment may be appealed. Compare an interlocutory order (q.v.).
Section 36(1) and 294(1) of the Constitution of the Federal Republic of Nigeria, 1999 as altered governs proceedings in ?Every Court established under this Constitution? that determines disputes or controversies on oral or documentary evidence and relies on ?final addresses? to render a ‘decision’.
The intention of the National Assembly is that, a breach of the provisions of Section 294(1) of the Constitution is to be remedied in Section 294(5)-(6) of the Constitution which provides as follows: (5) The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of Subsection (1) of this section unless the Court exercising jurisdiction by way of appeal from or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.
(6) As soon as possible after hearing and deciding any case in which it has been determined or observed that there was non-compliance with the provisions of Subsection (1) of this section, the person presiding at the sitting of the Court shall send a report on the case to the Chairman of the National Judicial Council who shall keep the Council informed of such action as the Council may deem fit.
The provisions of Section 294(5) of the Constitution ought to be read with the provisions of Order 4 Rule 9(3) of the Court of Appeal Rules, 2016. The National Assembly has employed the word ‘determine’; ‘determination’ and ‘decision’ in Section 294(1) of the Constitution for a definite or a desired purpose. ‘Determination’ has been given judicial interpretation by Alexander, C.J.N. in Deduwa vs. Okorodudu (1976) 1 NMLR 236, Alexander, C.J.N. held at pages 243-244 to wit: –
More light is thrown on the meaning of the words ‘decision’ and determination’ in the case of the Automatic Telephone and Electric Co., Ltd. vs. The Federal Military Government of the Republic of Nigeria (1968) 1 All NLR 429 where Ademola, CJN in giving the ruling of the Court said at page 432: ?We have been referred to the Shorter Oxford Dictionary for the meaning of determination. It means ‘a bringing or coming to an end? or (the mental action of coming to a decision,? or ?the resolving of a question’).
In Oaten vs. Auty (1919) 2 K.B. 278, Bray, J., at page 284 interprets the word ‘determine’ as meaning ‘make an end of the matter.’ In our own experience in this (Supreme Court), we send a matter back to the High Court for a rehearing and determination; the word ?determination? therein meaning ?ending of the matter.”
In Osborn’s Concise Law Dictionary (ante) to ‘determine’ means: – ‘(1) To come to an end; (2) To decide an issue or appeal.’
In Words and Phrases Legally Defined Vol. 2 (D-H) by John B. Saunders ?determination? and to ?determine? and their legal connotation are defined and supported by judicial reasoning from jurists of renown from Commonwealth countries which ought to guide learned
Judges and Justices in Nigeria in the administration of law and justice in this century at pages 63-64 as follows: –
A determinable interest comes to an end automatically upon the occurrence of the terminating event, as for example upon the remarriage of a woman to whom an estate has been granted during her widowhood. This is inevitable, for according to the limitation itself, i.e. according to the words fixing the space of time for which the widow?s right of enjoyment is to continue, her interest ceases with her remarriage and nothing remains to be done to defeat her right. There can, indeed, be no question of defeating what has already come to an end. (Cheshire?s Modern Real Property (10th Edition) 281).
It is said that ?termination? and ?determination? do not mean the same thing; that ‘termination’ means the thing coming to its natural end; ?determination? means coming to what I may call a violent end, that is, an end which was not contemplated as the longest duration, such as coming to an end by an unexpected death. I do not think that this is either the popular or the legal distinction between the two terms. Supposing a term were created of fifty years, determinable at the death of ‘A’, would it be legally inappropriate to say, that such term is determinable either by effluxion of time or by the death of A And as to the grammatical or popular use of the term it is rather remarkable that, in Todd’s edition of Johnson’s Dictionary, the fourth sense given of the word ‘determination’ is ‘expiration’, ‘end’. And the lexicographer adds, ?Used only by lawyers; as, from and after the determination of the said lease.
The word ?determination? may properly, and according to legal as well as to ordinary use, signify the coming to an end in any way whatever. That appears to me to be the honest mode of construing the word.? St. Aubyn vs. St. Aubyn (1861), 1 Drew & Sm. 611, per Kindersley, V.-C., at pp. 618, 619.
The words of the condition (in a bond) are, ?if the determination of the said action shall be in favour of the plaintiff, etc. We are of opinion that, as there was at the commencement of this action a judgment in favour of the plaintiff, and there was no stay of execution on the judgment, such a state of things amounts to ?a determination? of the action in favour of the plaintiff within the meaning of the condition.
Where, as in this case, the plaintiff has obtained a judgment in his favour, and is in a condition to enforce it by execution, the action, as far as he is concerned, may be properly said to be determined in his favour.? Burnaby vs. Earle (1874) L.R. 9 Q.B. 490, per Lush, J., at p.493.
There is a ?con in Chapter 3 of the Income Tax Act, 1952, which relates to , Appeals and Relief for Mistake? and comprises Section 50 to Section 66. Thus, in Section 50(2) there is the phrase ,An appeal, once determined by the commissioners, shall be final, and neither the determination of the commissioners nor the assessment made thereon shall be altered, except It is plain that there the words ‘determined’ and ‘determination’ are equivalent to: decided and decision, and are quite incapable of being understood to mean an assessment or the amount stated in an assessment. Muir vs. Inland Revenue Commissioners, (1966) 3 All E.R. 38, C.A. per Winn, L.J. at p.48.
NEW ZEALAND -Article 19 (of a partnership agreement)? says: ?Upon the determination of the partnership the assets of the firm shall be realized The word “determination appears to me to be used for ?termination?, and usage shows that they are now used interchangeably. Rushbrook vs. Bridgeman (1910), 29 N.Z.L.R. 1184, per Stout, C.J., at p.1189; also reported 13 G.L.R. 178, at p.180.
DETERMINE:
I doubt whether it is correct to say that, where, under a settlement, a person, who has a right to appoint an annual sum to one of a number of persons as he may think fit, and duly makes such an appointment, he thereby ‘determines’ any provision of the settlement. Be that as it may, it is, I think, clear that in the section under consideration (Section 38(1)(a) of the Finance Act, 1938 (repealed; see now Section 38(1)(a) of the Income Tax Act, 1952, as amended by Section 21 of the Finance Act, 1958) the word is used in relation to the determination of a provision in a settlement ‘by virtue or in consequence’ whereof a sum of money is payable by the ?settlor or the wife or husband of the settlor?: and that the power to determine any other provision of a settlement does not bring it within the provisions of Section 38(1)(a) at all. Assuming, however, that the respondent has power to appoint to himself as an employee of a company of which he is or has been a director, and assuming that by making that appointment he would determine all the provisions of the settlement in favour of the other possible beneficiaries, the result is that any sum payable by the respondent by virtue of, or in consequence of, the provisions of settlement so determined would be treated as his income. It seems, I think, clear that the words ?otherwise determine? mean the determination of a provision in the settlement whereby a sum of money becomes payable by the settlor, and nothing else.? Inland Revenue Commissioners vs. Dan Fitte (1942) 2 All E.R. 500, per Maccnaghten, J., at p.503.
It was argued with ingenuity that an interest cannot determine until it has begun, and that an interest cannot begin until it takes effect in possession, and from these premises the conclusion was adduced that the interests which were to determine? must be only and exclusively interests in possession. In my judgment, no such inference can be drawn from the use of the word ‘determine.’ There is one very good reason. By definition from the terms of the clause itself the interests which are to determine are all the interests of the son or daughter and his or her issue. They all determine uno flatu and at once. Obviously of those interests only one could be an interest in possession in any event; all the others must ex neccessitate be interests in remainder or reversion. Therefore, if the use of the word ?determine? introduces any ambiguity of the kind suggested, the testatrix had made herself her own dictionary and showed that in her view, at all events, an interest in expectancy can ‘determine’. If corroboration of that view be needed, some slight support is to be found in the provisions of the Finance Act, 1894, which contains an exemption from death duties with respect to certain expectant interests.
Section 5(3) of that Act provides: ‘In the case of settled property, where the interest of any person under the settlement fails or determines by reason of his death before it becomes an interest in possession, and subsection limitations under the settlement continue to subsist, the property shall not be deemed to pass on his death.? There is thus, at all events, statutory authority, if authority be needed, for the view that an interest can be accurately described as ‘determining’ if it fails while it is yet reversionary in character. Re Wilson?s Will Trusts, Tyron vs. Bromley-Wilson, (1950) 2 All E.R. 955, C.A., per Jenkins, L.J. at p.961.’
I am bound by the definition of a ?determination? by Alexander, C.J.N. in Deduwa vs. Okorodudu (supra) and the definition of a ‘decision’ in Section 318(1) of the Constitution. In Chief Andrew Thomas vs. Local Government Service Board (1965) NMLR 310, Brett, JSC held at page 315 that ?The greater includes the less
Where a Court, established by ‘this Constitution’ is exercising jurisdiction under Section 36(1) and 294(1) of the Constitution but has not ?determined? or ?put an end? to a dispute or controversy, I do not know why the Court of Appeal should assume jurisdiction over the subject-matter in dispute contrary to the requirements in Section 294(2) of the Constitution.
The remedy of the appellant will be to proceed under the provisions of Sections 13-14 of the Court of Appeal Act, 2004 (as amended) which provides as follows:-
‘
13. This Part of this Act shall apply to the exercise of the jurisdiction of the Court of Appeal to hear appeals in civil causes or matters.
14(1) Where, in the exercise by the High Court of a State or as the case may be, the Federal High Court of its original jurisdiction, an interlocutory order or decision is made in the course of any suit or matter, an appeal shall, by leave of that Court or of the Court of Appeal lie to the Court of Appeal, but no appeal shall lie from any order made ex-parte or by consent of the parties, or relating only to costs.
(2) Nothing in Subsection (1) of this Section, shall be construed so as to authorize an application to the Court of Appeal in the first instance for leave to appeal from an interlocutory order or decision made in the course of any suit or matter brought in the High Court of a State or the Federal High Court.”
Sections 13-14 of the Court of Appeal Act, 2004 (as amended) applies only to interlocutory decisions of the Federal High Court or the High Court of a State. The time for appealing or seeking leave to appeal is provided in Section 24(1)-(4) of the Court of Appeal Act, 2004 (as amended). In Udoh vs. Orthopedic Hospital Management (1993) 7 SCNJ (Pt.2) 436, Karibi-Whyte, JSC held at page 443 as follows:
‘It is a well settled principle of construction of statutes that where a section names specific things among many other possible alternatives, the intention is that those not named are not intended to be included. Expressio unius est exclusion alterius. See A-G. of Bendel State vs. Aideyan (1989) 4 NWLR 646. This is that the express mention of one thing in a statutory provision automatically excludes any other which otherwise would have applied by implication, with regard to the same issue – See Ogbunyiya vs. Okudo (1979) 6-9 SC 32; Military Governor of Ondo State vs. Adewunmi (1988) 3 NWLR (Pt.82) 280.’
David Pius Kelvin and the appellant (1st count) stood trial in the Court below under Section 6(b) and 1(2)(a) (2nd count) of the Robbery and Firearms (Special Provisions) Act, Volume 14, Cap. R11, Laws of the Federation of Nigeria 2004 reads as follows:
6. Any person who:-
(b) conspire with any person to commit such an offence.
1(2) If –
(a) any offender mentioned in Subsection (1) of this section is armed with any firearms or any offensive weapon or is in company with any person so armed, the offender shall be liable upon conviction under this Act to be sentenced to death.’
Count 1 reads:
‘That you, David Pius Kelvin (M) and Onyemechi Nweke Nweneke (M) on or about the 26-2-2011 at North-Bank, around Court 5 opposite Musa Plato Mega Station, Makurdi within the jurisdiction of this Honourable Court conspired with others now at large to do an illegal act to wit: you agreed to rob one Sunday Igba of his vehicle Golf 3 with registration No. XF 538 MKD, and money in the sum of N16,300.00 and his Nokia handset, which act was done in pursuance of agreement and you thereby committed an offence punishable under Section 6(b) of the Robbery and Firearms (Special Provisions) Act, Cap. R11, Laws of the Federation of Nigeria 2004.
Count 2 reads:
‘That you, David Pius Kelvin (M) and Onyemechi Nweke Nweneke (M) on or about the 26-2-2011 at North-Bank, around Court 5 opposite Musa Plato Mega Station, Makurdi within the jurisdiction of this Honourable Court did commit armed robbery, in that, you armed yourselves with a gun and army jack-knife and you robbed Sunday Igba of a Vehicle Golf 3 with registration No. XF 538 MKD, and of his money amounting to N16,300.00 and a Nokia handset and you thereby committed an offence punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap. R11, Laws of the Federation of Nigeria.”
Count 1 does not set out the weapons the armed robber conspired to use in committing the alleged offence on 26th February, 2011 at North-Bank around Court 5 opposite Mussa Plato Mega Station, Makurdi within the jurisdiction of the Court of trial. The time of the day whether it was in the day or night is not stated by the prosecution.
Count 2 states that the co-conspirators committed ?armed robbery, in that, you armed yourselves with a gun and an army jack-knife and you robbed Sunday Igba Whether the act was committed in the day or night time, is omitted from the charge.
The prosecution had the duty to produce and get admitted in evidence any of the weapons the robber used on 26-2-2011 to commit the robbery namely, the ‘gun’ and ‘army jack-knife’ if both had been retrieved by those who witnessed the act of the commission of the offence, especially if they or any of them had been apprehended at the scene in the course of committing the offences charged. Even if none of the armed robbers were arrested at the scene but had escaped a confessional statement by the appellant or any of the co-conspirators could have led those who effected their arrest to the place where the gun or the army jack-knife might have been hidden, retrieved and tendered at the trial in the court below. Sections 30-32 of the Evidence Act, 2011 provides as follows:
30. Where information is received from a person who is accused of an offence, whether such person is in custody or not, and as a consequence of such information any fact is discovered, the discovery of that fact, together with evidence that such discovery was made in consequence of the information received from the defendant, may be given in evidence where such information itself would not be admissible in evidence.
31. If a confession is otherwise relevant, it does not become irrelevant merely because it was made under a promise of secrecy, or in consequence of a deception practiced on the defendant for the purpose of obtaining it, or when he was drunk or because it was made in answer to questions which he need not have answered, whatever may have been the form of these questions, or because he was not warned that he was not bound to make such statement and that evidence of it might be given.
32. Evidence amounting to a confession may be used as such against the person who gives it, although it was given upon oath, and although the proceeding in which it was given had reference to the same subject-matter as the proceeding in which it is to be proved, and although the witness might have refused to answer the question put to him, but if, after refusing to answer any such question the witness is improperly compelled to answer it, his answer is not admissible as a confession.”
The learned trial Judge ought to have considered the prosecution?s evidence under Section 135(1)-(3) of the Evidence Act 2011 to wit:
(1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.
(2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to Section 139 of this Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action.
(3) If the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted on to the defendant.”
The appellant was not bound to give evidence until the prosecution had discharged the burden of adducing evidence to satisfy the provisions of Section 135(1)-(3) of the Evidence Act, 2011. In Saganuwa vs. Commissioner of Police (1978) 1 LRN 45 appears the following statement of law at page 46:
It is mandatory that an accused person must be given notice of the case against him: See Faro vs. Inspector-General of Police (1964) 1 All NLR 6. As can be seen, the information under which the appellant was arraigned before the Court was unhelpful because it did not specify whether the appellant was accused of stealing all the five bicycles or only the one belonging to the two boys.
Furthermore, to succeed in a case of theft, possession is one of the essential ingredients of the offence which must be proved. In this case, however, the possession of the bicycle or bicycles was not proved by the prosecution and as such the charge of theft must fail.
The appellant was also made to give evidence without the necessary warning as required by Section 236(1)(b) of the Criminal Procedure Code and Section 22(9) of the Constitution of the Federation. It is mandatory that an accused person must not be compelled to give evidence in a case involving him. And if he opts to do so of his own volition, he must be warned of the consequences. In the instant case, the Upper Area Court Judge failed to comply with these provisions of the law. Failure to do so is fatal unless there is some other evidence apart from that given by the accused: See also Nelson vs. Bornu Native Authority (1968) SCOPE 23 and Dungus vs. The State (1973) NNLR 129.
None of the prosecution witnesses that purported to have arrested the suspects including the appellant testified that any of them was arrested at the scene of crime in the course of the commission of the offence, nor was the gun or army jack-knife tendered and admitted as exhibits in the course of trial. There is nothing to show that the victim of the alleged armed robbery (PW1) knew any of the armed robbers nor was any parade conducted by the police to enable the victim (PW1) or any eye witness to identify the appellant or any of his co-conspirators. Section 136(1)-(2) and 138(1)-(2) of the Evidence Act, 2011 covered the present situation in that the onus of proving that armed robbery occurred on 26th February, 2011 at North-Bank around Court 5 opposite Mussa Plato Mega Station, Makurdi, Benue State as alleged in counts 1 and 2 for which the appellant and his co-suspect were arraigned, tried, and the appellant was sentenced in accordance with the provisions of Section 6(b) (count 1) and Section 1(2)(a) (count 2) of the Robbery and Firearms (Special Provisions) Act, Cap. R11, Laws of the Federation of Nigeria 2004 had been discharged by the prosecution beyond reasonable doubt.
In Tanko vs. The State (2009) 2 SCNJ 1, the Supreme Court held at pages 18-19 per Aderemi, JSC as follows:
On issues No. 4 and 5 which query the right of the Court below to uphold the reliance of the trial Court in the extra-judicial statement of the appellant in his conviction despite what was called all the irregularities, my answer to it is that though the extra-judicial statement of the appellant was expunged by the Court below, the viva voce evidence of PW1, PW2, PW3 and PW5 which brought into fore the entire contents of the extra-judicial statement and went beyond was never challenged under cross-examination. The trial Judge was right in law in believing the unchallenged evidence and there is nothing on the records tainting any of the witnesses called. Issues No.4 and 5 are therefore answered in the affirmative’
The need for an identification parade to have been conducted by the prosecution may be examined in the light of the Rex vs. Turnbull & Ors. (1976) 3 All E.R. 549 by Widgery, C.J., at pages 551-552 as follows:
Each of these appeals raised problems relating to evidence of visual identification in criminal cases. Such evidence can bring about miscarriage of justice and has done so in few cases in recent years. The number of such cases, although small compared with the number in which evidence of visual identification is known to be satisfactory, necessitates steps being taken by the Courts, including this Court, to reduce that number as far as is possible. In our judgment the danger of miscarriages of justice occurring can be much reduced if trial judges sum up to juries in the way indicated in this judgment.
First, whenever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications. In addition he should instruct them as to the reason for the need for such a warning and should make some reference to the possibility that a mistaken witness can be a convincing one and that a number of such witnesses can all be mistaken. Provided this is done in clear terms the judge need not use any particular form of words.
Secondly, the Judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance? If in any case, whether it is being dealt with summarily or on indictment, the prosecution have reason to believe that there is such a material discrepancy they should supply the accused or his legal advisers with particulars of the description the police were first given. In all cases if the accused asks to be given particulars of such descriptions, the prosecution should supply them. Finally, he should remind the jury of any specific weakness which had appeared in the identification evidence. Recognition may be more reliable than identification of a stranger; but, even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.
All these matters go to the quality of the identification evidence. If the quality is good and remains good at the close of the accused?s case the, the danger of a mistaken identification is lessened; but the poorer the quality, the greater the danger. In our judgment, when the quality is good, as for example when the identification is made after a long period of observation, or in satisfactory conditions by a relative, a neighbour, a close friend, a workmate and the like, the jury can safely be left to assess the value of the identifying evidence even though there is no other evidence to support it; provided always, however, that an adequate warning has been given about the special need for caution. Were the Courts to adjudge otherwise, affronts to justice would frequently occur. A few examples, taken over the whole spectrum of criminal activity, will illustrate what the effects on the maintenance of law and order would be if any law were enacted that no person could be convicted on evidence of visual identification alone.’
In Ikemson & Ors. vs. State (1989) 6 SCNJ (Pt.1) 54 by Karibi-Whyte, JSC at page 65 as follows:
‘Counsel submitted that the failure of the prosecution to investigate the alibi set up by the appellants was fatal to their identification. The Court of Appeal ought to have warned itself of the risk of miscarriage of justice in relying on the evidence. It seems to me that Counsel to the appellants was under the impression that identification parade is a sine qua non in all cases where there has been fleeing encounter with the victim even if there is other evidence leading conclusively to the identity of the perpetrators of the offence. I do not think so. I agree with the submission of Counsel to the respondent that an identification parade is only essential in the situations enunciated in R. vs. Turnbull & Ors. (1976) 3 WLR 445 at p. 447. These are cases where the victim did not know the accused before and was confronted by the offender for a very short time, and in which time and circumstances he might not have had full opportunity of observing the features of the accused.
In such a situation a proper identification will take into consideration the description of the accused given to the Police shortly after the commission of the offence, the opportunity the victim had for observing the accused, and what features of the accused noted by the victim and communicated to the Police marks him out from other persons.
In the instant case PW1 had described the special features of the 1st appellant, as fair in complexion and wearing a beard. He was quite close to him during the encounter. It was with no difficulty that he recognised him when 1st appellant was arrested and brought following information by the third appellant.
Thus where the suspects were not apprehended at the scene during the commission of the alleged offences, the Supreme Court held in Akpan Ikono & Anor. vs. The State (1973) 5 SC 23, Udo Udoma, JSC reviewed the evidence before holding at page 249 lines 8 to page 253 lines 1-3 as follows:
The most formidable hurdle was the question of identification. If ever there was a case in which a well-ordered and properly conducted identification parade by police could be regarded as indispensable, this was undoubtedly one. Chibuko Samuel (PW2) as described by the learned trial Judge was the only eye-witness of the incident resulting in the murder of the deceased. According to him he actually saw his father being beaten by some ten persons among whom were the four accused persons tried by the learned trial Judge.
In his evidence-in-chief on the point he said inter-alia:
He, (meaning his father, Samuel Ekperi) died on 8th April, 1971. On that day I went to the swamp with my father to collect some raffia palm leaves. My father made one bundle of the raffia palm and gave me to carry. This I did. My father carried his own bundle behind me. The swamp is in Ehie swamp bush. As I was going in front the deceased called me and said ?the Ibibios had killed me.
I ran back to my father and saw the accused persons hitting my father with rods and sticks. I then ran back to my village and reported to my uncle one Arinze Alamba. It was the first accused persons who were hitting my father with rods and sticks.
Then this leading question was put to him:
Q: Was that the first day the first time you saw the accused persons?
A: No sir. I used to see the accused persons when they attended their market or they attended our market. XX XX
The third accused, Akpan Akpan Mboh, was holding sticks. All the 4 accused persons were hitting the deceased with rods and sticks indiscriminately. The deceased was crying and calling on my name as they were hitting him with the sticks and rods.
I do not know the name of the village of the accused persons. All I know is that they are Ibibios.
Under cross-examination he said:
From the point where my father called me to where I was when he was attacked would be a distance between this witness box to the edge of the cross.? (Note by Court: 70 yards). The four accused persons attacked my father with sticks and a rod.
I saw each of the three accused persons hit my father with sticks.
It was then suggested by Counsel for the defence to Chibuko Samuel (PW2) that his father did not mention the name of anybody before he died and that his fellow villagers had conspired and named the four accused persons as those who had committed the offence. These suggestions were denied. From the evidence as a whole three points of considerable importance emerge to which the learned trial Judge did not appear to have given adequate consideration. In the first place, Chibuko Samuel (PW2) in his evidence had said that he did not know the name of the village of the four accused persons. In the second place, in his so-called dying declaration, if any credence is to be attached to it at all, the deceased did not say that his assailants were natives of Mbiafun Ikot Abasi village. He merely said he was being killed by Ibibios people. Why then, it must be asked, did Chibuko Samuel (PW2) and Arinze Alamba (PW3) pick on Mbiafun Ikot Abasi as the village of the assailants of the deceased? Might it not be that it was because Mbiafun Ikot Abasi is the nearest Ibibios village to Obonipa Ariam village?
In the third place, there is no title of evidence that on 8th April, 1971, when the matter was fresh, the appellants? names or, for that matter, any other names were even mentioned by Chibuko Samuel (PW2) and Arinze Alamba (PW3) as the assailants of the deceased when they reported the matter to the police at the Ariam Police Post. Indeed, it could not be said that the evidence given by Chibuko Samuel (PW2) and Arinze Alamba (PW3) in this report is free from doubt. Their evidence appears suspect. For instance, according to Chibuko Samuel (PW2), the first and second names given by the deceased as some of his assailants were Akpan Ikonoma (i.e. first appellant) and Okon Udo Okoh (i.e. second accused); but according to Arinze Alamba (PW3) the names were Akpan Ikon (i.e. first appellant) and Okon Udo Oko (the second accused). Yet the name of the second accused as shown on the charge sheet, Exhibit ?6?, in the Magistrate?s Court was not Okon Udo Oko but Udo Udo Okor, which deepens the mystery surrounding the evidence of the two witnesses for the prosecution in this case. Surely Akpan Ikonoma is not the same thing as Akpan Ikoh, nor could Udo Udo Okor metamorphose into Okon Udo Oko between the preliminary investigation before the Magistrate and the trial before the learned trial Judge.
Then there are these vital points. Chibuko Samuel (PW2) under cross-examination said that when he reported the incident to his uncle Arinze Alamba (PW3) many of their villagers numbering some ten persons accompanied them to the scene and were there and heard when the deceased mentioned the names of the people ‘who clubbed him to death’ before he died, whereas Arinze Alamba (PW3) in his evidence-in-chief said:
After calling those names he died. PW2 was present when the deceased was calling the names. Some villagers came to the scene but before then the deceased had died.
Again Chibuko Samuel (PW2), after having said in his evidence-in-chief that he did not hear properly the fourth name called out by the deceased as one of his assailants, contradicted himself under cross-examination by swearing that the deceased had mentioned the names of the four accused persons before he died, apparently to his hearing.
It is thus clear from the evidence that Chibuko Samuel (PW2) cannot be regarded as a witness of truth. His veracity was certainly in doubt and on the principle which was applied in R. vs. Leonard Harris (1927) 20 Cr. App. R. 144 his evidence should have had no weight with the Judge. Indeed, the contradictions in his evidence were almost conclusive against his credibility. See R. vs. Golder & 2 Ors. (1961) 45 Cr. App. R. 5.?
His Lordship further held at page 254 lines 1-17 as follows:
We think that in a case of the kind under consideration in which the Court must rely on the account given by eye-witnesses who were present and heard a dying declaration made, that such dying declaration ought to be strictly proved in the exact words used by the deceased so as to remove any lingering uncertainties as to what the deceased had in fact said. We are satisfied that the so-called dying declaration was not properly proved in the present case and therefore should not have weighed with the learned trial Judge. We think also that the learned trial Judge was well aware of the weakness in the so-called dying declaration and that probably accounts for his stating that, even though he accepted the declaration to be true, he would still have convicted the first appellant on the evidence of Chibuko Samuel (PW2) alone.
Udoma, JSC further held at page 255 lines 7 to 34 as follows:
Failure on the part of the learned trial Judge to give adequate consideration to the appellants? defence of alibi and the absence of a proper identification parade by the Police are such fundamental errors that it is impossible for this Court to hold that the conviction of the appellants had not occasioned a miscarriage of justice. It is a well-established principle of law that, when the sole defence is an alibi, identification by a single witness must be conducted with great care and the summing up must deal carefully with the facts of identification.
In R. vs. Millichamp (1922) 16 Cr. App. R. 83 a case not dissimilar wherein the matter for determination were the defence of alibi and the issue of identification, the learned Chief Justice of England said at page 84:
This Court is slow to reverse a jury’s verdict; but here we must. Mr. Sheldon’s opportunities for identification, were too alight and there was evidence in appellant’s favour. No proper test was taken at the Police Station and the officer-in-charge there was not called, nor was there the slightest attempt to prove that the appellant had a twisted foot, and his own offer to exhibit his feet or to run or walk was not accepted.
Though the prosecution is not required to call a host of witnesses, vital witnesses, particularly those who were eye witnesses or who arrested the suspects at or after the commission of the crime or investigated the victim?s report, etc are vital to establish all or some of the ingredients of the offences charged and ought to be called by the prosecution to testify. See Odili Vs. The State (1977) 4 SC 1 at 9. Rex Vs. Kurea 7 WACA 175; Ndebili Vs. The State (1965) NMLR 253 and Alonge Vs. IGP (1959) 4 FSC 203 and 204.
But where the evidence of a witness, though relevant, is not called by the prosecution, the extra-judicial statement of the witness in the custody or possession of the prosecution, should be made available to the defence if called for. The case of the prosecution “was so palpably unreliable as to reduce the proceedings to a farce” – per Irikefe, JSC (as he was) in Ibrahim vs. Shagari (1983) 14 NSCC 431 at 435 lines 5-8. In Sabiya Vs. Tukur & Ors. (1983) 14 NSCC 559, Aniagolu JSC described the evidence at page 561 lines 39-44 in that petition as not only “vague” but a “wooly mixed bag of incomprehensible assertions…” That is how I regard the evidence adduced by the prosecution to secure the conviction of the appellant on Counts one and two. Accordingly, the appeal is allowed. I hold the opinion that the prisoner is entitled to a discharge and an acquittal.
JOSEPH EYO EKANEM, J.C.A.: I have had the benefit of reading in advance the lead judgment of my learned brother, Otisi, JCA, which has just been delivered. I completely agree with the reasoning and conclusion therein.
It is the law that the prosecution has the burden to prove the guilt of an accused person beyond reasonable doubt. Proof of the guilt of an accused person may be attained by:
(1) Eye witness evidence
(2) Circumstantial evidence
(3) Confessional Statement. See Olowoye V State (2012) 17 NWLR (Pt. 1329) 346,382.
It is clear from the evidence of PW1, the only eye – witness of the armed robbery, that he did not identify the appellant as one of the armed robbers who robbed him of his car. He positively identified the 1st accused person but not the appellant.
The prosecution, in part, based its case against the appellant on the allegation that he was one of the persons who was arrested in the car that was stolen soon after the theft. The weakness in this aspect of the case of the prosecution is that the PW2 (the I.P.O) who testified about the arrest was not among the highway policemen that effected the arrest. No member of the team, including its leader Emmanuel Wada, testified and so the evidence of the prosecution was nothing but hear-say which cannot sustain a charge.
The prosecution also placed reliance on the confessional statement of the appellant to secure his conviction. An accused person may be convicted on his confessional statement alone if (a) it is free and voluntary (b) there are facts in the prosecution’s evidence which show that the confession is true. See Kanu V King (1952) 14 WACA 30, R V Agagariga (1961) All NLR 462 and Omoju V FRN (2008) 7 NWLR (Pt. 1085) 38.
In otherwords, a free and voluntary confession of an accused person which is direct and positive, and properly proved is sufficient to secure a conviction. It is however desirable for the Court to test the truth of the confession by examining it in the light of other credible evidence before the Court. See Onyenye V State (2012) 15 NWLR (Pt. 1324) 586.
The test which has been developed by the Courts is as follows:
(i) Is there anything outside the confession to show that it is true?
(ii) Is it corroborated?
(iii) Are the relevant statements made in it of facts true as far as they can be tested?
(iv) Was the prisoner one who had the opportunity of committing the offence?
(v) Is his confession possible? See Kabiru V AG Ogun State (2009) 5 NWLR (P. 1134) 209 and Jimoh V State (2012) 3 NWLR (Pt. 1286) 144.
As has been ably demonstrated by my learned brother in the lead judgment, the confessional Statement relied upon by the prosecution to prove the guilt of the appellant has not passed the above test by any imagination.
The result of what I have said so far is that the prosecution did not prove its case against the appellant beyond reasonable doubt. His conviction therefore cannot stand.
With the few comments of mine and for the detailed reasoning and conclusion in the lead judgment of my Lord, Otisi, JCA, I too allow the appeal and set aside the conviction and Sentence of the appellant. He is discharged and acquitted.
Appearances:
Chief Dr. (Mrs.) Caroline Mbafan EkpenduFor Appellant(s)
Mrs. Mary E. Ochenjele, Deputy Director Public Prosecutions, Ministry of Justice, MakurdiFor Respondent(s)
