SIMEON KPENU v. THE STATE & ANOR (2019)

SIMEON KPENU v. THE STATE & ANOR

(2019)LCN/13635(CA)

RATIO

COURTS: AN INTERMEDIATE COURT MUST CONSIDER ALL THE ISSUES BEFORE IT BEFORE ARRIVING AT ITS DECISION

It is trite law that an intermediate court must consider all issues canvassed before it before arriving at its decision.
In AJIE V THE STATE (2000) 3 NSC QLR page 53 Onu JSC in delivering the lead judgment of the court stated on page 61.
“The general rule is that a court has a duty to pronounce on all material issues raised before it. See OLOWOLAGBA & ORS V. BAKARE & ORS (1998) 3 NWLR (PT.543) 528.

APPEAL: WHEN AN APPELLATE COURT WILL INTERFERE IN THE DECISION OF A LOWER COURT

APPEAL: WHEN THE APPELLATE COURT WILL NOT ORDER A RE-TRIAL
However where the lower court fails to advert its mind and treat all issues in contention fully but there are sufficient materials before the Appellate court for the resolution of the matter an order of retrial will not be made per Onu JSC in AJIE v THE STATE (Supra).PER T. O. AWOTOYE, J.C.A.

ARRAIGNMENT: THE PROVISIONS OF THE LAW ON WHAT MAKES AN ARRAIGNMENT VALID

It is true, the law is settled on the mandatory requirements of section 215 of the criminal Procedure Law which are necessary for a valid arraignment. See LUFADEJU V. JOHNSON (2007) 8 NWLR (PT.1037) 538, AMALA V. THE STATE (2004) 12 NWLR (PT.888) SOLOCA V. THE STATE (2005) 11 NWLR (PT.937) 460PER T. O. AWOTOYE, J.C.A.

EVIDENCE: HOW TO PROVE A PREVIOUS CONVICTION
It is trite law that previous conviction can be proved in line with section 248 and 250 (1) of the Evidence Act in judicial proceeding by production of a certificate conviction signed by the registrar or other officer of the court in whose custody is the record of the said conviction. see BLUES V. COMMISSIONER OF POLICE (1959) WRNLR 234; SANYAOLU V. INEC & ORS (2007) EPR 579, AKANNI V. OLANIYAN (2006) B NWLR (PT. 983) 536. PER T. O. AWOTOYE, J.C.A.

HOW TO PROVE PREVIOUS CONVICTION IN THE ABSENCE OF A CERTIFICATE OF CONVICTION

In the absence of the production of a certificate of conviction an admission of conviction by the convict will suffice. I have gone through the record of proceedings at the trial court. There is nothing to show that the appellant admitted the previous conviction records given by the prosecution. Neither does it appear that he was given the opportunity to react to what the prosecution stated. PER T. O. AWOTOYE, J.C.A.

HOW TO PROVE A PREVIOUS CONVICTION BASED ON SECTIONS 248 AND 250(1) OF THE EVIDENCE ACT, 2011
The law is clear on how previous convictions can be proved in a judicial proceeding. Section 248 and 250 (1) of the Evidence Act 2011 are clear on this. They read:-
“248 (1) Where it is necessary to prove a conviction of a criminal offence, the same may be proved-
(a) by the production of a certificate of conviction containing the substance and effect of the conviction only, purporting to be signed by the registrar or other officer of the court in whose custody is the record such of the said conviction;
(b) if the conviction was before a customary court, by a similar certificate signed by the clear of cost or scribe of the court in whose custody is the record of the said such conviction; or
(c) by a certificate purporting to be signed by the Director of Prisons or officer in charge of the records of a prison in which the prisoner was confined giving the offence for which the prisoner was convicted, the date and the sentence.
(2) If a person alleged to be the person referred to in the certificate denies that he is such person the certificate shall not be put in evidence unless the court is satisfied by the evidence, that the individual in question and the person and the person named in the certificate are the same. ,
250(1) A previous conviction may be proved against any person in any criminal proceeding by the production .of such evidence of the conviction as is mentioned in this section, and by showing that his finger prints and those of the person convicted are the finger prints of the same person.”This with due respect to the learned trial magistrate is wrong. However, I am of the firm conviction that the error is not grave enough to vitiate the sentence of two years which on the facts of the case is clearly justifiable. PER T. O. AWOTOYE, J.C.A.

In The Court of Appeal of Nigeria

On Tuesday, the 3rd day of July, 2012

CA/PH/577/2010

JUSTICE

MUSA DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria

PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria

TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria

Between

SIMEON KPENU Appellant(s)

AND

1. THE STATE
2. THE COMMISSIONER OF POLICE, RIVERS STATE Respondent(s)

T. O. AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the judgment in respect of the appeal of the appellant against the judgment of Rivers state High Court (CORAM: HON. JUSTICE A. W. JUMBO) delivered on 17/3/2010 in a criminal appeal from the decision of magistrate J.M. J. Elenwo.
The appellant was arraigned, tried summarily and convicted by the Kpor Magistrate’s Court for the offences of conspiracy, Breaking and Entering and Stealing in charge Nos. KMC/76C/98, KMC/79C/98, KMC/98C/98 and KM/73C/98.
The appellant who was dissatisfied with his conviction appealed to Rivers State High Court, Port Harcourt. The learned Appellate judge after adoption of briefs by parties to the appeal delivered judgment on 16/3/2010 inter alia thus:
“From the above, it is obvious that the learned trial Magistrate exceeded the limit of his jurisdiction to impose sentence. This court is jurisdictionally competent to set aside the sentences imposed by the lower court and substitute same with the correct sentence. In charge No. KMC/76C/98, the Magistrate imposed six years prison term. The correct sentence ought to be two years. In this charge, the sentences imposed is hereby ordered to run concurrently. The appellant is according sentenced to 2 years imprisonment. The same order applies to charge Nos. Nos. KMC/73C/98, KMC/98C/98 and KM/79C/98. The sum total of the number of imprisonment imposed is therefore eight years. From the records available in the record of proceedings, the appellant have already served more than ten years in prison. This means that, he has exceeded the total numbers of years he ought to be in prison in respect of all the charges. Consequently I hereby order that the appellant be released from prison custody forth with. A consideration of the other issues formulated by counsel are now unnecessary.”
The appellant being aggrieved appealed against the said judgment vide Notice of Appeal filed on 16/6/2010.
On transmission of record of appeal, the appellant filed his brief of argument. The Respondents having failed to filed their briefs of argument, the court ordered that the appeal be heard an appellants brief atone.
In his brief the appellant formulated one sole issue for determination as follows:-
“Whether the lower court, sitting in its Appellate jurisdiction was right not to have considered the Appellant’s complaint relating to the breach of his right to fair hearing during his trial (as the trial court) and to have came to the decision that a consideration of the other issues formulated by the Appellant were unnecessary.”
Learned counsel for the appellant M. Akinyanju submitted that a court of law had a duty to consider all issues properly raised before it and make findings of facts thereupon. He cited ATANDA & 3 ORS V. ATANDA & 4 ORS (1989) 3 NWLR (pt.111) 511, ORO V. FALADE (1995) 5 NWLR (PT.396) page 402 and other cases. He submitted that the failure of the court below to consider an issue on the failure of the trial court to comply with the mandatory provision of section 215 of the Criminal procedure law occasioned miscarriage of justice. He relied on the affidavit dated 9/06/2008 and filed 10/6/2008 attached to a motion dated 9/6/2008 and filed on 10/6/2008 where the appellant deposed to the fact that he was fettered while on trial which said deposition was uncontroverted, He submitted that such ought to be deemed admitted. He cited ALAGBE v. ABIMBOLA (1987) 2 SC. 39 at 40 AZEEZ V. STATE (1986) 2 NWLR (PT.23) 541 at 542 and other cases.
Learned counsel submitted that by the combined effect of the provision of section 215 of the Criminal Procedure Law Cap 31. The Laws of Eastern Nigeria 1963 Vol. II a valid arraignment of an accused person must satisfy for requirement including the following:-
“(i) The accused shall be placed before the court unfettered unless the court shall see cause to the contrary or otherwise.”
He relied on several judicial authorities including KAJUMO v. STATE (1988) 1 NWLR (PT.73) 721, EYOROKOROMA V. STATE (1979) 6 – 9 SC. 3 and submitted that a strict compliance with the requirements of section 215 of the Criminal Procedure Law was mandatory for a valid trial to exist. He submitted that the failure of the trial court to comply led to miscarriage of justice.
Learned counsel posited further that the inquiring of the learned trial magistrate into the previous Criminal record of the appellant by without affording him the opportunity to admit or deny same did occasion miscarriage of justice.
Learned counsel referred to the notes of the learned Magistrate on allo-cutus made by the appellant the previous c1minal record as stated by the prosecution and the sentence of the court. It reads as per page 39 – 40 of the record of appeal as follows:
“Allocutus: 1st accused pleads for leniency. He says he is telling the truth to the court. He relies on the preaching of St. Paul that he should give thanks to God in every situation. Accused person urged and court to be forward looking and see that good thing can come out of the bad. 2nd accused person plead for leniency. S. K. Brownson as Amicus Curie prayed the court to be considerate while… them penalty.
Previous criminal records: 1st accused has previous criminal records. Prosecution referred the court to its submissions on this in KMC/T6C/98 COP VS Simeon Kpenu. The accused was convicted in 1996 at Bori Magistrates court to imprisonment. In 1997 he was also convicted to 2 years imprisonment with hard labour. While the sentence is on he escaped from the prison. In 1997 still the accused was also convicted. 1st accused has also been convicted by this Honourable Court in KMC/76C/98 and KMC/79C/98 to years of imprisonment with hard labour and both all sentences to be consecutive. No. previous criminal record for the 2nd accused.
Sentence: I have carefully examined, the facts of this case, the plea for leniency by the 1st and 2nd accused persons and the submissions by S. K. Brownson Esq. Amicus given, under Allocutus. I have equally examined the facts of previous criminal records against the 1st accused person now a convict. I am of the impression that 1st and 2nd convicts need to be seen to have actually repented of their sins while within a confinement before a reprieve or clemency and mercy can be available to them. Perhaps white there they may be closer to God who has all power to see to their case. I am not in the least minded to pretend that I am convinced that these accused persons have learnt any lessons yet, Accordingly I am in lined to sentence them to the following terms of imprisonment perhaps to serve as deterrence and a reformatory gesture, 1st convict is sentenced to two years imprisonment with hard labour in counts one. In count two, 1st convict is sentenced to another two years imprisonment with hard labour. In count three the 1st convicts is sentenced to a further two year imprisonment with hard labour. The 2nd convict Baridon Gbarabara is sentence to two years imprisonment with hard labour in counts one. He is also sentenced to two years imprisonment with hard labour in each of the count two, three, and four. All the sentences are to run consecutively. There is no option of fine. Dated at Kpor, this 5th day of August 19998.
Learned counsel submitted that a wrong procedure was adopted by learned trial magistrate Mr. Akinyanju for the appellant submitted that a previous conviction could be proved in subsequent criminal proceedings in one of the ways laid down in section 225 and 226 of the Evidence Act. He relied on BEYIOKU v. IGP (1967) NLR 44.
Learned counsel submitted further that the appellant was not given the opportunity to admit or deny the record of previous conviction as put forward.
He finally urged the court to allow the appeal, nullify the trial of the appellant and acquit the appellant of his conviction at the trial court.
I have carefully considered the submissions of learned counsel for the appellant.
Was the lower appellate court wrong to have failed to consider all the issues canvassed before it arriving at its decision?
It is trite law that an intermediate court must consider all issues canvassed before it before arriving at its decision.
In AJIE V THE STATE (2000) 3 NSC QLR page 53 Onu JSC in delivering the lead judgment of the court stated on page 61.
“The general rule is that a court has a duty to pronounce on all material issues raised before it. See OLOWOLAGBA & ORS V. BAKARE & ORS (1998) 3 NWLR (PT.543) 528.

But the result of a court of Appeal not complying with this general rule depends on the facts and circumstances of each case. see ONIFADE v. OLAYIWOLA (1990) 7 NWLR (pt.161) 130 at 165.
The determinant factor is the effect of the lapse by the lower court. If it results in miscarriage of justice then it is strong enough to cause a nullification of the proceedings. See EJERIKWU V THE STATE (1993) 7 NWLR (PT. 307) 554 at 583.
However where the lower court fails to advert its mind and treat all issues in contention fully but there are sufficient materials before the Appellate court for the resolution of the matter an order of retrial will not be made per Onu JSC in AJIE v THE STATE (Supra).
According to Nnaemeka Agu JSC, in SANUSI v, AMEYOGUN (1992) NWLR (PT. 237) 527 at 549.
“The appellate court must go further and ask itself whether the error was such that it could be corrected from the evidence in cold print without injustice to either side. If it is not it must order a retrial”.I shall view this appeal in the above light,
It is clear that the learned lower appellate judge did not consider all the issues canvassed before him before arriving at his decision. It is trite that this is erroneous in law. See 7UP v ABIOLA (2001) 13 NWLR (PT.730) 469 at 507, ORO v FALADE (1995) 5 NWLR (PT.396) 402; UKA v. IROLO (1996) 4 NWLR (PT.441) at 236 (all cited by learned counsel for the appellant).
However this is not enough to vitiate the proceedings since in my humble view these issues can be resolved from the face of the record of appeal and I hereby proceed to so do.
For clarity’s sake I shall restate the unconsidered issues complained about by the appellant as follows:-
(1) Whether the trial, conviction and sentence passed on the appellant by the trial court is not a nullity in view of the failure of the trial court to comply with the mandatory provisions of section 215 of the criminal procedure Law the Laws of the Easter Nigeria cap 31 1963 Vol. II (then the applicable raw in Rivers state)
Issue No. 3.02 as per page 78 of record of appeal
(2) Whether the inquiry into the previous criminal record of the appellant by the trial court without affording him the opportunity to admit or deny same did not occasion a substantial miscarriage of justice. Issue No. 3.03 on page 78 of record of appeal.
On the appellant’s issue No. 3.02 appellant relied heavily on his deposition in the affidavit filed on 10/6/2008 in support of motion on notice praying for extension of time to file his Notice of Appeal. This can be seen on pages 20-22 of record of appeal.
Paragraphs 6 – 11 of the said affidavit reads:-
“6. That I was arraigned and tried alongside four (4) other accused persons.
7. That during my arraignment and trial by the Kpor Magistrate Court, I was chained on my left leg with one Baridon Gbarabera, the second accused person arraigned alongside with me.
8. That the charges were read and explained- to me and I immediately took plea with chain on my left leg”
9. That during the trial on S.K. Brownson, Esq., directed the attention of the Court to the chain on my left leg but the court ignored him.
10. That one Douglas, an inspector of Prison was among the officers of the Nigeria Prison Service that escorted us to the court and was aware of the chain on my left leg.
11. That after being convicted and sentenced to an aggregate term of thirty three (33) years imprisonment by the Kpor Magistrate Court, I remained chained on my left leg for almost ten (10) months with Baridon Gbarabera at the Federal Prisons, port Harcourt.”
As aforestated the contents of the affidavit were not challenged as no counter affidavit was filed to controvert its averments. The stated averments cannot be gathered from the record of proceedings of the magistrate’s court. The proceedings at the magistrates court on 30/7/98 and 3/9/98 on page 3 – 4 of record of appeal do not show that the appellant was in’ chains during his arraignment and subsequent conviction.
What the appellant is trying to do in my opinion is to attack challenge or impugn the record of the court as to the proceedings on 30/7/1998 and 3/8/98, as incorrect and incomplete. Yet the said affidavit was filed in the appellate court below and not served on the trial magistrate or the registry of the magistrates court. This to my mind is improper and unacceptable in law. A party challenging the correctness of record of proceedings must swear to an affidavit setting out the facts or part of the proceeding omitted or wrongly stated in the record and such affidavit must be served on the Judge or Registry of the court concerned. see GONZEE v. NIGERIAN EDUCATIONAL RESEARCH AND DEVELOPMENT COUNCIL (2005) 22 NSCQLR 735.
The meaning of this is that there is no record to buttress his complaints as encapsulated in the appellant’s grounds of appeal and in issue No.3.02.
It is true, the law is settled on the mandatory requirements of section 215 of the criminal Procedure Law which are necessary for a valid arraignment. See LUFADEJU V. JOHNSON (2007) 8 NWLR (PT.1037) 538, AMALA V. THE STATE (2004) 12 NWLR (PT.888) SOLOCA V. THE STATE (2005) 11 NWLR (PT.937) 460.
However there are no sufficient materials on record of appeal to show that the requirements of section 215 of the Criminal Procedure Law were not complied with at the trial court. I therefore resolve this issue in favour of the Respondents.
On issue No. 3.03 the complaint of the appellant is that he was not give the opportunity to admit or deny previous criminal records given by the prosecution.
It is trite law that previous conviction can be proved in line with section 248 and 250 (1) of the Evidence Act in judicial proceeding by production of a certificate conviction signed by the registrar or other officer of the court in whose custody is the record of the said conviction. see BLUES V. COMMISSIONER OF POLICE (1959) WRNLR 234; SANYAOLU V. INEC & ORS (2007) EPR 579, AKANNI V. OLANIYAN (2006) B NWLR (PT. 983) 536. In the absence of the production of a certificate of conviction an admission of conviction by the convict will suffice. I have gone through the record of proceedings at the trial court. There is nothing to show that the appellant admitted the previous conviction records given by the prosecution. Neither does it appear that he was given the opportunity to react to what the prosecution stated.
The law is clear on how previous convictions can be proved in a judicial proceeding. Section 248 and 250 (1) of the Evidence Act 2011 are clear on this. They read:-
“248 (1) Where it is necessary to prove a conviction of a criminal offence, the same may be proved-
(a) by the production of a certificate of conviction containing the substance and effect of the conviction only, purporting to be signed by the registrar or other officer of the court in whose custody is the record such of the said conviction;
(b) if the conviction was before a customary court, by a similar certificate signed by the clear of cost or scribe of the court in whose custody is the record of the said such conviction; or
(c) by a certificate purporting to be signed by the Director of Prisons or officer in charge of the records of a prison in which the prisoner was confined giving the offence for which the prisoner was convicted, the date and the sentence.
(2) If a person alleged to be the person referred to in the certificate denies that he is such person the certificate shall not be put in evidence unless the court is satisfied by the evidence, that the individual in question and the person and the person named in the certificate are the same. ,
250(1) A previous conviction may be proved against any person in any criminal proceeding by the production .of such evidence of the conviction as is mentioned in this section, and by showing that his finger prints and those of the person convicted are the finger prints of the same person.”This with due respect to the learned trial magistrate is wrong. However, I am of the firm conviction that the error is not grave enough to vitiate the sentence of two years which on the facts of the case is clearly justifiable.
On page 7 of the record of appeal some of the reasons given for the sentence are as follows:-
“Sentence: I am convinced without doubt that 1st and 2nd convict are bad eggs in society. I am Accordingly, I am in no way constrained to commit the convicts to jail for purposes of deterrence.
I therefore hereby sentence the 1st convict to two years imprisonment with hard -labour in count one. In count two, I also sentence the 1st convict to another two years imprisonment with hard labour. In court three, I sentence the 2nd convict to two years imprisonment with hard labour. There is no option of fine. Date at Kpor, this 4th day of August 1998 adjourned to 20/8/98 for hearing in counts four and five.”
These reasons are on their own valid reasons that can be taken into consideration in sentencing a convict. The sentences are for deterrence purposes having regard to the prevalence of such crimes in the area. I therefore affirm the conviction and sentence of the appellant.
I resolve all issues formulated before the court below (but which were not considered by it) in favour of the respondents.
I also resolve the sole issue formulated in this appeal in favour of the respondent.
This appeal lacks merit. It is accordingly dismissed.

M. DATTIJO MUHAMMAD, J.C.A.: I agree.

P. A. GALINJE, J.C.A.: I have read in advance the judgment just delivered by my learned brother, AWOTOYE, JCA and I agree that the appeal lacks merit. Accordingly it is hereby dismissed by me as well.
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Appearances

Akinola Akinyanju Esq. for the Appellant.For Appellant

AND

Respondent served.For Respondent