OSAMEDE ABBEY V. THE STATE (2017)

OSAMEDE ABBEY v. THE STATE

In The Supreme Court of Nigeria

On Friday, the 28th day of April, 2017

SC.552/2013

 

JUSTICES

WALTER SAMUEL NKANU ONNOGHEN   Justice of The Supreme Court of Nigeria

MUSA DATTIJO MUHAMMAD   Justice of The Supreme Court of Nigeria

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN   Justice of The Supreme Court of Nigeria

EJEMBI EKO   Justice of The Supreme Court of Nigeria

PAUL ADAMU GALINJE   Justice of The Supreme Court of Nigeria

Between

 

OSAMEDE ABBEY Appellant(s)

AND

THE STATE Respondent(s)

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C. (Delivering the Leading Judgment): On 21/11/2002, the appellant and three others were charged before the High Court of Edo State, sitting at Benin City (the trial Court) on a two-count charge of conspiracy and armed robbery as follows:
COUNT 1
That you Jude Maduka obi, Okechukwu Maraire, Osamede Abbey and Francis Ehebholo, on or about the 25TH day of March 1999 at Buvel Filling Station, No. 222 Muritala Muhammed way Benin City in the Benin Judicial Division. conspired with each other to commit a felony to wit: Armed Robbery and thereby committed an offence punishable under Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act Cap. 398 Laws of the Federation of Nigeria, 1990.
COUNT 2
That you Jude Maduka Obi, Okechukwu Maraire, Osamede Abbey and others now at large on or about the 25th day of March 1999 at Buvel Filling Station, No. 222 Muritala Muhammed way Benin City, in the Benin Judicial Division robbed the sum of seven hundred and sixty-four thousand four hundred and thirty-eight naira, eighty-three kobo (N764,438.83), Four Hundred Dutch (sic) Mark (400 Dutch (sic)

 

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Mark), sixty four US Dollars (64 US Dollars), Fifty British Pounds Sterling cash (50 British Pounds Sterling) and coral beads of assorted forms valued at one hundred and fifty thousand naira (N150,000) properties of Prince Clement Okoeguale and at the time of the robbery were armed with a gun and thereby committed an offence punishable under Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act Cap 398 Laws of the Federation of Nigeria, 1990.

At the arraignment the appellant was the 3rd accused. All the accused persons pleaded not guilty to the charges against them. Unfortunately, the 1st accused, Jude Maduka Obi, died in prison custody. The prosecution withdrew the charges against the deceased and amended the charge. The remaining three accused persons, including the appellant pleaded not guilty to the amended charge. The appellant then became the 2nd accused. The 4th accused, Francis Ehebholo, who was charged on the count of conspiracy only, was discharged on a successful no-case submission, leaving only two accused standing trial – the appellant and one Okechukwu Maraire.

The prosecution called seven witnesses in proof of its case.

 

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The facts as presented by the prosecution are as follows: PW3, Thomas lyere was a night guard at Buvel Filling Station, Murtala Mohammed Way, Benin City. He resumed for work at about 7 p.m. on 24/3/1999. After all workers closed for the day around 8 pm he was alone in the premises. At about 2 a.m. in the early hours of the following day, 25/3/1999, he heard some noise suggesting that the gate had been shaken. He went to investigate and saw two persons, who had already entered the premises, walking towards him. He asked of their mission but they did not respond. Sensing danger, he tried to escape to the nearby premises of New Nigerian Bank, which usually has police presence. Unknown to him, there were other hoodlums in the premises. Two other men grabbed him by the collar and dragged him to the mechanic section on the premises. According to his testimony, they tore his shirt and used part of it to bind his hands and legs. They advised him to remain quiet, as he was not the one they were after. A gun was pointed at him to ensure he understood their command.
The person in possession of the gun stood over him while others went to carry out the operation. From

 

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where he was held he could hear noises indicating that metal protectors were being cut. The sounds came from the main office block. After about an hour, the person guarding him left. He managed to free himself from his constraints and ran to the nearby New Nigerian Bank and narrated his experience to the policemen on duty. He also called the Managing Director of the filling station and narrated his experience. The first to arrive on the scene was Queen Igah (the office cashier – PW4).

PW1, Clement Kennedy Okoegwale, the Managing Director of the company received the news of the incident while away in the United States of America. He returned as soon as he could and arrived on 27/3/1999. He described what he saw thus:
a. the gate to his office had been sliced open with an electric saw;
b. the door leading to the strong room housing the safe (in the cashiers office) was destroyed; it had been sliced open with a cutting machine but the robbers were unable to force it open;
c. the safe in his office however was damaged and forced open, various amounts of local and foreign currency and coral beads were found to have been

 

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Stolen.

PW2, the Admin. Manager and PW4, the cashier, both testified as to how they found the strong room vandalized, safes opened and money carted away. PW5, attached to the Federal Special Anti-Robbery squad, Force C.l.D. Annex, Adeniji Adele, Lagos, was a member of the team assigned to investigate the case. The case was transferred to them from Benin pursuant to a petition written to the Assistant Inspector General of Police ‘D’ Department, Force C.I.D, Abuja. The case file was handed over to him along with the first and second accused persons (the now deceased 1st accused and Okechukwu Maraire). The appellant, who was on bail was subsequently re-arrested by the State C.I.D and handed over to him. He visited the scene and testified as to what he observed and also mentioned the exhibits handed over to him. It was his testimony that appellant volunteered a confessional statement, which he recorded and countersigned after the appellant confirmed that he made it voluntarily. An objection was taken to its admissibility on grounds of involuntariness. It was admitted in evidence after a trial within trial as Exhibit P3. PW6 is the Superior Police Officer

 

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before whom the appellant was taken to confirm his confessional statement. The attestation form was admitted in evidence as Exhibit P5.

ln his defence, the appellant denied any knowledge of the crime. At the conclusion of trial, in a considered judgment delivered on 16/6/2006 the learned trial Judge acquitted and discharged the appellant and his co-accused of the offence of conspiracy charged in Count 1 but convicted and sentenced them both to death by hanging on the charge of armed robbery in Count 2. Being dissatisfied with this decision, the appellant appealed to the Court of Appeal Benin Division. The appeal was dismissed on 16/6/2013. The appellant is still dissatisfied and has further appealed to this Court. The original notice of appeal at pages 395 – 396 or the record contains two grounds of appeal.

At the hearing of the appeal on 2nd February, 2017 learned counsel for the Appellant was absent. The Court was satisfied from its record that he had been duly notified of the hearing date. The appellant having filed a brief of argument on 21/11/2013 settled by CHIEF OSAHENI UZAMERE of counsel, the provisions of Order 6 Rule 8 (6) of the Rules of

 

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this Court were invoked and the appellant was deemed to have argued the appeal. OLUWOLE IYAMU ESQ., Solicitor General, Ministry of Justice, Edo State, leading R O. OAIHIMEIRE (MRS.) (S.S.C) and M.O. ERUAGA (MISS) (S.S.C), adopted and relied on the respondent’s brief, which was deemed filed on 6/5/2015. He urged the Court to dismiss the appeal.

In paragraph 4 at page 2 of the appellant’s brief, learned counsel indicated his intention to seek leave to file additional grounds of appeal at the hearing of the appeal. Paragraph 4 reads thus:
LEAVE TO FILE AND ARGUE ADDITIONAL GROUNDS OF APPEAL/PURSUANT TO ORDER 6 RULE 5 (1) (C) OF THE SUPREME COURT RULES AS AMENDED IN 1999″.

The additional grounds of appeal are set out in paragraph 5. I reproduce them below shorn of their particulars:
(a) The learned Justices of the Court below (Court of Appeal) erred in law to have upheld the High Courts assumption of jurisdiction in the case.
(b) The learned Justices of the Court of Appeal were wrong in law when they upheld the trial Courts admission in evidence, (sic) the faulty flawed confessional statement of the Appellant.<br< p=””

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(c) The learned Justices of the Court of Appeal were wrong in upholding the perverted evaluation of evidence by the learned trial Judge.

From the two original and three additional grounds of appeal, the appellant formulated 4 issues for determination as follows:
1. Whether the decision of the Court of Appeal in upholding the judgment of the High Court is borne out by the evidence before the trial Court. (Grounds 1 & 2 of the original grounds of appeal)
2. Whether the Court of Appeal was right in upholding the findings/evaluation of facts by the High Court in so far as such evaluation was perverse. (Ground (c) of the additional grounds of appeal).
3. Whether the Court of Appeal was right in law to have upheld the trial Court’s assumption of jurisdiction in a matter it did not possess the requisite jurisdiction to hear. (Ground (a) of the additional grounds of appeal.)
4. Whether the Court of Appeal was right in upholding the trial Court’s admission in evidence of the fatally flawed confessional statement of the appellant. (Ground (b) of the additional grounds of appeal).

The respondent, on its part, formulated 2 issues for

 

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determination thus:
1. Whether on the evidence of the prosecution witnesses and confessional statements of the appellant and his co-accused, the lower Court was in error in not discharging and acquitting the appellant for the offence of armed robbery.
2. Whether the proper mode for the commencement of trial for the offence of armed robbery in the High Court is by filing information or a charge

Before going into the merits of the appeal, I deem it necessary to have a further look at the additional grounds of appeal incorporated in the appellant’s brief. Order 6 Rule 5 (1)(c) of the Rules of this Court provide as follows:
“If leave to file and argue additional grounds of appeal is to be sought at the hearing of the appeal, it may be so indicated in the brief and the proposed additional grounds shall be stated and argued in the brief under the appropriate issue or issues arising in the appeal. Provided that any fees payable under Order 2 Rule 13 shall be paid to the Registrar of this Court at the time of filing the brief.”
(Emphasis mine)

In the instant case, I have carefully examined

 

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the Court’s records and have been unable to find any application to regularize the additional grounds of appeal contained in the appellant’s brief. As noted earlier, learned counsel for the appellant, though duly served with hearing notice, was absent at the hearing of the appeal. There was therefore no application at the hearing for leave to argue the additional grounds of appeal. I therefore hold that issues (b) and (c) of the additional grounds of appeal are incompetent. They are hereby struck out. Issues 2 and 4 distilled from the incompetent grounds of appeal are also incompetent and accordingly struck out.

Ground (a) of the additional grounds of appeal raises the issue of jurisdiction. The law is trite that the issue of jurisdiction can be raised at any time and even for the first time before the apex Court. It is equally well settled that leave is not required to raise the issue of jurisdiction. See: Gaji Vs Paye (2003) 8 NWLR (Pt.823) 583; Obiakor vs State (2002) 10 NWLR (Pt.776) 612: Omomeji vs Kolawole (2008) 14 NWLR (Pt.1106) 180; Agbiti Vs Nigerian Navy (2011) 4 NWLR (Pt.1236) 175. I hold that Ground (a) is therefore competent. Issue 3

 

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formulated from the said ground is also competent.

Based on the above observation, I am of the view that the issues relevant to the just determination of this appeal are the appellant’s issues 1 and 3, which are substantially similar to the two issues formulated by the respondent. lssue 1 is distilled from grounds 1 and 2 of the original notice of appeal while ground 3 is distilled from additional ground (a). l adopt the appellant’s issues 1 and 3 for the resolution of this appeal, with a slight rephrasing of issue 3 and re-numbering it as issue 1. It raises the fundamental issue of the jurisdiction of the trial Court to have entertained the case ab initio. Prudence therefore dictates that this issue should be considered first. The appellant’s Issue 1 therefore becomes Issue 2.

Issue 1 (rephrased)
Whether the Court of Appeal was right in law to have upheld the trial Court’s assumption of jurisdiction in this case.

Learned counsel for the appellant submitted that the trial Court lacked jurisdiction to hear the case ab initio, for failure of the prosecution to file an information and seek the consent of the learned trial Judge to prefer the

 

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charges against the appellant. He submitted that the appellant was wrongly tried upon a Charge Sheet used in the Magistrates Court for the trial of misdemeanors under the summary trial procedure. He submitted that the correct procedure for initiating a criminal trial at the High Court is as contained in Section 331 of the Criminal Procedure Law (C.P.L.) Cap. 49 Vol. II Laws of now defunct Bendel State 1976 applicable to Edo State. He submitted that failure to fulfill a condition precedent to the exercise of jurisdiction by the trial Court renders the trial a nullity. He relied on Madukolu Vs Nkemdilim (1952) 1 ALL NLR 587 @ 595; A.G. Lagos State Vs Dosunmu (1989) 3 NWLR (Pt.111) 552 @ 557 – 558: MacFoy Vs U.A.C. (1962) AC 152 and several other authorities in support of his submission. He argued that non-compliance with Section 337 of the CPL vitiates the entire proceedings.

Arguing further, he submitted that the word “summary” appearing in the Robbery and Firearms (Special Provisions) Act Cap 398 LFN 1990 cannot be imported into Section 4 of the Tribunal’s (Certain Consequential Amendments, etc) Decree No. 62 of 1999, as was done by the learned

 

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trial Judge.

Section 4 provides:
“4. All criminal proceedings brought before the Court relating to a matter for which the Court has jurisdiction under this Decree shall be tried summarily in accordance with Section 33 of the Federal High Court Act and Rules of Procedure made under the Act or under the equivalent Section of the relevant High Court Law of the State concerned and Rules of Procedure made under that law.”

He submitted that the Section of the Federal High Court Law referred to above enjoins the Court to conduct criminal proceedings subsequently in accordance with the provisions of the Criminal Procedure Act. He contended that Section 4 of the Decree must be read in conjunction with Section 337 of the CPL of Bendel State as applicable to Edo State.

Learned counsel went further to contend that the charges against the appellant were brought under a defunct Decree and that the appellant was therefore tried under a non-existent law. He relied on Aoko Vs Fagbemi (1961) ALL NLR 100. He urged the Court to resolve this issue in the appellant’s favour.

Before considering the respondent’s submissions on this issue, it is pertinent to

 

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note that there is no appeal before this Court on the issue as to whether the appellant was charged under a non-existent law. The only particular of error under the additional ground (a), from which this issue was distilled is as follows:
“Particulars of Error
It was clear that the appellant herein (accused in the High Court) was not properly arraigned. Offences of felony are triable in the High Court on information and not by a charge sheet (summary trial) as was done in this case which is a felony – armed robbery.”
The submissions as to the law under which the appellant was charged therefore go to no issue and are accordingly discountenanced.

In response to the submissions of learned counsel for the appellant, the learned Solicitor General for Edo State submitted on behalf of the respondent, that the proper mode for the commencement of trial for the offence of armed robbery at the High Court is by way of a charge and not by way of information. He submitted that by virtue of Section 4 of the Tribunals (Certain Consequential Amendments, etc) Decree No 62 of 1999 (now Act and henceforth referred to as Decree 62) and Part Il of the Schedule

 

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thereto, which Act was saved by Section 315 of the 1999 Constitution, the High Court is vested with jurisdiction to hear and determine armed robbery cases summarily.

He reproduced Section 4 of Decree 62, Section 33 of the Federal High Court (FHC) Act and Section 12 of the High Court Law of Bendel State 1976, applicable to Edo State. He submitted that by the clear wordings of Section 315 (1) of the Constitution, Section 4 of Decree 62 and Section 33 of the FHC Act is the existing law on arraignment in respect of armed robbery cases.

He submitted that reliance on Section 337 of the CPL is misconceived, as the Section merely prescribes the form an information should take where the need to file an information arises. He submitted further that the CPL is a residual law while the appellant was charged, tried and convicted under Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act Cap. 398 LFN 1990. In the circumstance he argued that there was no basis for a combined reading of Section 4 of Decree 62 with Section 337 of the CPL.

He submitted further, relying onAminu Tanko vs the State (2009) 1-2 MJSN 209 @ 237 D-F and Din Vs A.G.

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Federation (1988) 4 NWLR (Pt.87) 147 @ 186, that where the law creating an offence specifies the mode for the trial of offences created thereunder, that mode applies to the exclusion of the general mode of commencement of trial of offences in the Court. He maintained that the charge of armed robbery for which the appellant and his co-accused were tried and convicted was properly laid in accordance with the provisions of the enabling law.

I deem it appropriate to note at this stage that this is a sister appeal to Appeal No. SC.551/2013: OKECHUKWU MARAIRE VS THE STATE (2016) 12 SC (Pt.III) 71 wherein judgment was delivered by this Court on 16th December, 2016 dismissing the appeal of the 1st accused, Okechukwu Maraire. In that case identical arguments were proffered by the same learned counsel on both sides on the same issue. At pages 94 – 98 of the judgment, I resolved the Issue as follows:
“The Act creating the offences with which the appellant and his co-accused were charged is the Robbery and Firearms (Special Provisions) Act Cap. 398 LFN 1990, specifically Section 1 (2) (a) thereof, which provides:
“1. Any person who commits robbery shall upon

 

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trial and conviction under this Act, be sentenced to imprisonment for not less than 21 years.
(2) If –
(a) any offender mentioned in Subsection (1) of this Section is armed with any firearms or 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.
Section 2(1) of Decree 62 provides:
2(1) The Federal High Court or the High Court of a State, as the case may be, shall have jurisdiction to try the offences created under the enactments specified in the Schedule to this Decree.
Part II of the Schedule thereto lists the Robbery and Firearms (Special Provisions) Decree 1984 (as contained in Cap. 398 LFN 1990) as one of such enactments. Section 4 of Decree 62 reproduced earlier provides that all criminal proceedings brought before the Court relating to a matter in which the Court has jurisdiction shall be tried summarily in accordance with Section 33 of the Federal High Court Act and Rules of Procedure or under the equivalent Section of the relevant High Court Law of the State concerned and under the Rules of Procedure made

 

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under that law.
As rightly submitted by learned counsel for the respondent, Decree 62 of 1999 is saved as an existing law by virtue of Section 315 of the 1999 Constitution (as amended).
Section 33 of the Federal High Court Act provides:
(1) Subject to the provisions of this Section, criminal proceedings before the Court shall be conducted substantially in accordance with the provisions of the Criminal Procedure Act and the provisions of that Act shall, with such modifications as may be necessary to bring it in conformity with the provisions of this Act, have effect in respect of matters falling within the jurisdiction of the Court.
(2) Notwithstanding the generality of Subsection (1) of this Section, all criminal causes or matters before the Court shall be tried summarily. (Emphasis mine)
Learned counsel for the appellant has argued this issue on the premise that summary trial procedure is only applicable to the Magistrates Courts or other inferior Courts. This view is misconceived. The reason can be found, firstly, in Sections 2 (1) and 4 of Decree 62 and Section 33 of the Federal High Court Act (supra), which

 

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provide for summary trial in criminal proceedings before the High Court. Another reason is to be found in Section 277 of the CPL, as rightly observed in Ogunwumiju, JCAs concurring opinion in the Court below. Section 277 of the C.P.L. of Bendel State 1976, applicable to Edo State provides:
277: The provisions of this part shall apply to offences triable summarily, that is to say-
(a) To all trials in the High Court other than information; and
(b) To all trials in the High Court in respect of offences for which it is provided that a trial can be had in the High Court otherwise than on information and for which no special procedure is provided; and
(c) To all trials in any Magistrates Court to the extent of the jurisdiction of the magistrate adjudicating; and
(d) For all offences declared by any written law to be triable summarily or on summary conviction or in a summary manner by a magistrate.
(Underlining mine)
Section 12 of the High Court Law of the defunct Bendel State, 1976 applicable in Edo State provides that the jurisdiction of the High Court shall be exercised in the manner<br< p=””

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(i) Provided by the High Court Law;
(ii) The Criminal Procedure Law; and
(iii) Any other Act of Parliament or written law or by such Rules and Orders of Court as may be made pursuant to this law or Act.
(Underlining mine)
The effect of the various provisions reproduced above, as held by the Court below, is that they all recognize the fact that the filing of an information is not the only method by which criminal trials may be instituted. It is correct, as submitted by learned counsel for the respondent, that where a Statute provides for a particular mode of doing something, that method and no other must be adopted. See: Tanko Vs The State (supra); Din Vs A.G Federation (supra); N.S.I.T.F.M.B vs Klifco Nig. Ltd. (2010) 13 NWLR (Pt. 1211) 307.
In the instant case, since Section 4 of Decree 62 of 1999 has been saved by Section 315 of the 1999 Constitution (as amended), it is an existing law, which provides that all criminal proceedings before the Court shall be tried summarily. This includes proceedings under Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act Cap. 398 LFN 1990. Section 33 of the Federal High Court

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Act also makes specific provision for the summary trial of criminal matters.
There is therefore no doubt at all that the mode of instituting criminal proceedings before the High Court for the offence of armed robbery is by summary trial procedure i.e by preferring a charge, as was done in this case.
Learned counsel for the appellant has failed to show that the finding of the Court below is perverse. No cogent legal argument has been advanced to warrant interference by this Court in the finding of the Court below. Indeed I observe that learned counsel for appellant merely reproduced mutatis mutandis the argument contained in paragraph 4 of his brief of argument filed before the lower Court at pages 306-308 of the record. He failed to point out the specific findings of the Court below, which he did not agree with. Consequently, this issue is resolved against the appellant.
I adopt the above reasoning in resolving this issue against the appellant.

lssue 2
Whether the decision of the Court of Appeal in upholding the judgment of the High Court is borne out by the evidence before the trial Court.

In arguing this issue, learned counsel for the appellant submitted that an

 

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appellate Court would not ordinarily interfere with the findings of fact by the trial Court unless the findings are perverse, not supported by evidence, or have led to a miscarriage of justice or practice has not been followed or complied with. He relied on Abokokuyanro Vs The State (2012) 2 NWLR (Pt.1285) 530: Ajayi vs Adebiyi (2012) ALL FWLR (Pt.634) 1: Gambari Vs Ibrahim (2012) ALL FWLR (Pt.644) 29: Ayorinde Vs Sogunro (2012) 11 NWLR (Pt.1312) 460, among others. The arguments in support of the issue commence at the last paragraph on page 8 of his brief. From the said paragraph through to page 12, learned counsel for the appellant did not challenge specific aspects of the judgment, which is the subject of appeal before us, but made several attacks against the judgment of the trial Court.

Under the heading “Wrong Evaluation” in the final paragraph on page 12 of his brief, learned counsel advanced arguments in respect of issue 2 predicated on Ground (b) of the additional grounds of appeal, which I had earlier struck out for being incompetent. Again, the submissions are wholly attacking the judgment of the trial Court rather than the judgment of the Court

 

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of Appeal. In this instance also, learned counsel has merely lifted the argument from his brief of argument filed before the lower Court.

In reply to the submissions of learned counsel for the appellant, learned counsel for the respondent observed that learned counsel failed to particularize the alleged wrong evaluation of evidence or perverse findings by the Courts below or any special circumstance that occasioned a miscarriage of justice. He observed further that a substantial portion of the appellant’s brief is devoted to launching attacks on the trial Judge. Relying on the case of Enekwe v I.M.B Nig. Ltd. & 2 Ors (2006) 19 NWLR (Pt.1013) 146 @ 1739, he urged the Court to take a serious view of the vicious attack by learned counsel on the competence and integrity of the learned trial Judge. He also relied on the case of Bolanle Abeke vs The State (2007) 9 NWLR (Pt.1040) 411 @ 432 B – E.

Learned counsel in paragraphs 4.7 – 4.14 at pages 8  14 of the respondent’s brief addressed the issue of the admissibility of the appellant’s confessional statement, Exhibit P1. I commend the industry of learned counsel. However, the submissions must be

 

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discountenanced, the issue upon which they are predicated having been struck out by me earlier in this Judgment.

From paragraphs 4.15 – 4.22, learned counsel sought to show why the concurrent findings of the two lower Courts should be upheld, the prosecution having, in his view fully discharged the burden of establishing the appellant’s guilt beyond reasonable doubt. Again, notwithstanding the industry and knowledge exhibited by learned counsel in his brief, the submissions go to no issue, as learned counsel for the appellant failed to properly challenge the judgment of the Court below but instead expended all his energy on attacking the judgment of the trial Court.

Due to the importance of the wrong approach adopted by learned counsel for the appellant to this appeal, I shall reproduce in extenso some portions of his brief of argument at pages 8-11 thereof.

He submitted as follows:
“A careful study of the decision of the trial learned judge which was upheld by the Court below Court of Appeal reveals that learned trial judge speculated throughout his judgment. He filled in the gaping gaps in the prosecutions case which as pointed out

 

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earlier in this brief is unacceptable on the authority of Nsofor v. State (supra). The important question that begs for an answer in these proceedings is: was the learned trial judge right to have engaged in utter speculation in his evaluation of the evidence before him On page 272 of the printed records, the learned trial judge observed:
“Now to an all important question, were these people (who invaded Buvel on 25/3/99 at 2am) be described as conspirators” The learned trial judge then indicated he would proffer an answer to the question he himself raised after due evaluation of the evidence. Instead the learned trial judge, with utmost respect, relapsed into sheer speculation.
Hear him:
I must recall that the incident occurred on 25/3/99 while PW1 was away in United States and from his unchallenged evidence, by 27/3/99, he was already back in his office. I infer from the foregoing facts that things were still fresh for PW1 to observe as he said he did.
He continued:
Now, if the evidence of PW3, Thomas Iyere, to the effect that he heard the cutting of protectors at the Administrative Building on the fateful

 

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night is considered alongside with those of PW1, PW2 and PW4 as to the states they found the offices, and that certain properties were carted away, it comes to this that the robbers armed with a gun and PERHAPS some other dangerous implements ripped the offices open and carted away such properties and in the process dangled a threat over the head of PW3 with the use of a gun.
We have capitalized the words IF and PERHAPS in the above observation by the learned trial Judge to highlight the very tentative and tenuous nature of his evaluation. These two words connote doubt and the law is that whenever there is any doubt, it should be always resolved in favour of the accused. See the case of Longe v. Inspector General of Police (1959) 4 FSC 203. Instead of a dispassionate evaluation of the evidence before him, the learned trial Judge was always in the habit of fine-tuning the prosecutions case for it. Instead of attempting to evaluate the evidence before him, he kept referring to this and that did accord with reason. Indeed the learned trial judge became an investigator and not an adjudicator.
….
He

 

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was always invoking common sense instead of invoking the law. The learned trial judge relapsed into speculation again when on page 280 of the printed record, he began to invoke common sense in what is strictly a legal matter. It does not require too much intelligence to be aware that in 2013, Nigeria Police had become Nigerians’ greatest tormentors in all the ramifications of that word. Thus, the learned trial judge ought to have taken judicial notice of the fact that the Police in Nigeria would force anyone in their not to confess to crimes they did not commit and if they fail to do so, would threaten them with death. This method of extracting “confessions” from suspects is known as “hanging” in Police circles. And that is what happened in this case.
Very instructively, the learned trial judge intoned thus at page 280 of the printed record:
“My careful examination of each of Exhibits P1 and P3 (confessional statements of the accused persons) respectively, shows that each of the documents more than anything else contains matters that COMMON SENSE will lead one to the conclusion that they emanated from the accused’s peculiar knowledge and that it is

 

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most improbable if not outright impossibility that the accused persons have been compelled to voice them out.”
The importation of common sense into what is strictly legal, that is, the probative value ascribable to a piece of evidence is patently wrong. The speculations and resort to common sense (perhaps the Judges) led to grave miscarriage of justice. A Court of law is enjoined at all times to stick to the evidence before it and not to go out of its way to fish out evidence which will tidy up the evidence of any party.

It is our final submission on this point that the judges demeanour and/or attitude throughout the trial leaves much to be desired. One needs to read very comprehensively and closely the entire proceedings. The learned trial judge was either lashing out at defence counsel or simply cursing them. He abused defence counsel roundly and at every turn, lost his temper on the filmiest of excuses. His entire attitude suggests bias. He scoffed at defence counsel’s right to raise any type of objection and, of course, threw out every application by the defence with such impatience as to leave everyone wondering whether this was

 

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justice. The learned trial justices handling of this case is enough to vitiate his entire judgment. Certainly the attitude adopted by the learned trial judge does not meet the standard set by the Court of Appeal as per Adeniji JCA at pp 266 – 267 in the case of NICON v. Nze (2004) 15 NWLR (pt.896) 245 250, R5.

He tried to save the situation with the following paragraph at page 12 of his brief:
“My Lords, we respectfully wish to point out that it is not the decision of the learned trial Judge perverse as it is, that is being appealed against in this Court. This Court does not, as a matter of law, hear appeals from a High Court or indeed a Court of first instance. This appeal is against the Court of Appeals upholding of the perverse findings of the High Court.”

With due respect to learned counsel, the feeble attempt could not repair the damage. The jurisdiction of the Supreme Court to hear appeals is conferred on it by Section 233 (1) of the 1999 Constitution (as amended), which provides as follows:
“233 (1) The Supreme Court shall have jurisdiction, to the exclusion of any other Court of law in Nigeria to hear appeals

 

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from the Court of Appeal.”
From the above constitutional provision, it is clear that the Supreme Court has no jurisdiction to hear appeals directly from the High Court. See Guobadia vs The State (2004) 6 NWLR (Pt.869) 360; Harriman Vs Harriman (1987) 3 NWLR (Pt.60) 244; Usman vs Garke (2003) 14 NWLR (Pt. 840) 261.

The two original grounds of appeal upon which issue 1 is predicated read thus:
1. The judgment of the Court below is against the weight of evidence before the Court.
2 The Court below did not properly evaluate the evidence before it.

It is my considered view that the above stated grounds of appeal refer to the judgment of the High Court, as the duty to evaluate and consider the weight of evidence is principally that of the trial Court that had the opportunity of seeing and hearing the witnesses and observing their demeanour and not the Court of Appeal. This view is confirmed by the thrust of learned counsels submissions against the judgment of the trial Court. Furthermore, the grounds of appeal contain no particulars and therefore do not specify which aspect of the findings of the Court of Appeal are being

 

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challenged.

Learned counsel’s submissions in respect of issue 2 herein are devoted solely to attacking the decision of the trial Court This Court lacks the jurisdiction to look into those complaints. There are concurrent findings of fact by the two lower Courts, which have not been shown to be perverse. This issue must therefore be resolved against the appellant.

In concluding this judgment, I repeat my admonition of learned counsel for the appellant CHIEF OSAHENI UZAMERE, as expressed in the sister appeal, Maraire Vs The State (supra) at pages 105 – 107 to be very circumspect in the language employed in challenging the judgment of any Court and to be very conscious of the decorum and etiquette expected of any member of the legal profession in discharging his duties. I stated inter alia:
In the case of Enekwe vs. I.M.B. Nig. Ltd. (2006) 19 NWLR (Pt. 1013) 146 @ 194 E-F, His Lordship Tobi, JSC stated inter alia:
“Judges have no forum to defend themselves in the judicial process for positions they take in their judgments. They cannot speak one more word outside their judgments in defence of the positions they have taken. Let parties be

 

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slow in pouring venom on them. lt is a serious attack on a Judge to say that he introduced in the case new matters that were not before the Court. So much is involved as so much could be read into or out of the allegation.”
The allegation that the learned trial Judge was “fine-tuning” the case of one of the parties, that he became an investigator and the aspersions cast on his competence/intelligence are completely unwarranted and unbecoming of a legal practitioner worth his salt. Learned counsel for the appellant should be well-guided.”

On the whole, I find no merit in this appeal. It is accordingly dismissed. The judgment of the Court of Appeal, Benin Division delivered on 16/5/2013 affirming the conviction and death sentence imposed on the appellant for armed robbery by the High Court of Edo State, holden at Benin on 16/6/2006, is hereby affirmed.

Appeal dismissed.

WALTER SAMUEL NKANU ONNOGHEN, J.S.C.: I have had the benefit of reading the lead judgment of my learned brother, KEKERE-EKUN JSC just delivered.

I agree with his reasoning and conclusion that the appeal lacks merit and should consequently be dismissed.

I therefore

 

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order accordingly and affirm the judgment of the lower Court.

Appeal dismissed.

MUSA DATTIJO MUHAMMAD, J.S.C.: Having read in draft the lead judgment of my learned brother Kekere-Ekun JSC, I adopt same in dismissing the appeal.
I abide by the consequential orders contained in the lead judgment.

EJEMBI EKO, J.S.C.: I was privileged to read in draft the judgment just delivered by my learned brother, K.M.O. KEKERE-EKUN, JSC, in this appeal. All the issues argued on the appeal have been adroitly considered and determined. I am in agreement and I hereby adopt the judgment, including all the orders made therein.

One thing very obvious, from the handling of this appeal for the appellant herein, is that the learned counsel for the appellant had proceeded in the appeal as if he was re-arguing the appeal against the decision of the trial Court. This is a further appeal, and it is against the decision of the Court of Appeal that affirmed the conviction and sentence of the appellant imposed on him by the trial High Court of Edo State. The consequence of the appellant not attacking the decision of the Court of Appeal is that he would be

 

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deemed to accept the decision, and therefore, not aggrieved thereby. Since appellant’s grouse in this Court, supposedly, is against the decision of the Court of Appeal, the appellant’s wasted efforts at attacking the decision of the trial Court all go to naught. In any case, Section 233 of the Constitution only vests jurisdiction on this Court to hear and determine appeals from the decisions of the Court of Appeal, and not the High Court or the trial Court.

The appeal, lacking in substance, is hereby dismissed. The decision of the Court of Appeal in the appeal No. CA/B/77C/2007 delivered on 16th May, 2013, which decision affirmed the conviction and sentence imposed on the appellant by Edo State High Court in the Charge No B/15C/2001 is hereby affirmed.

PAUL ADAMU GALINJE, J.S.C.: I have had the privilege of reading in draft, the judgment just delivered by my learned brother KEKERE-EKUN JSC and I agree with the reasoning contained therein and the conclusion arrived thereat. My learned brother elaborately set out the two counts charge, the facts of the case and argument of learned counsel on both sides. I do not need to reproduce them here. Section 135 (2) of the Evidence

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Act 2011 and Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 have placed the burden of proof in criminal cases squarely on the prosecution who must prove its case beyond reasonable doubt and a general duty to rebut the presumption of innocence constitutionally guaranteed to the accused person. This burden does not shift. See Alabi v The State {1993} 7 NWLR (Pt.307) 511 at 531 Paras A-C: Solola v The State (2005) 5 SC (Pt. 1) 135.

Turning to the instant appeal, has the prosecution proved its case beyond reasonable doubt as to warrant a verdict of guilt against the Appellant The lower Court in its judgment held that the confessional statement of the Appellant herein eminently satisfied the requirement of what constitutes direct and positive confession. The learned Justices of the lower Court also held that by the evidence available they were deadly sure that the Appellant was among the robbers who invaded Buvel Filling Station on Murtala Mohammed Way, Benin City on the 25th March, 1999. Now in view of the concurrent finding of fact by both the High Court and the Court of Appeal, that the Appellant was among the robbers who invaded

 

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Buvel Filling Station, Murtala Mohammed Way, Benin City on 25th March, 1999, the question may be asked whether the Appellant has made out a good case for interference by this Court with the concurrent findings of the two lower Courts on those issues. The attitude of this Court has been stated repeatedly in several decisions of this Court that in the absence of special and/or exceptional circumstances this Court will not allow a question of fact to be reopened where there have been two concurrent findings of fact by two lower Courts. See Mogo Chinwendu v Nwanegbo Mbanali (1980) 3 SC: Ukpe Ibodo & Ors v Enarofie & Ors (1980) 5 – 7 SC 42 at 55: Lokoyi & Anor v Ohojo (1983) 14 NSCC 386: Alhaji Waziri Ibrahim v Alhaji Shehu Shagari & Anor (1983) 14 NSCC 431: Adimora v Ajufo (1988) 19 NSCC (Pt. 1) 1005. The lower Court considered the assessment of the evidence and ascription of probative value by the trial Court and came to conclusion that the trial Court was right when it held that the ingredients of the offence of robbery had been proved. There are no facts on record to lead me to a contrary view. I have not found any exceptional or special

 

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circumstances that will push me into disturbing or interfering with those findings. I am at one with my learned brother KEKERE-EKUN JSC that the appeal lacks merit and deserves to be dismissed. Accordingly same is hereby dismissed by me. I endorse all the consequential orders made in the lead judgment.

 

 

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Appearances

No Appearance for the AppellantFor Appellant

 

AND

Oluwole O. Iyamu, Esq. (Solicitor-General, Edo State) with him, R.O. Oaihimire (SSC) and M.O Eruaga (SSC)For Respondent

 

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