SOLOMON UMANA v. THE STATE
(2011)LCN/4329(CA)
In The Court of Appeal of Nigeria
On Thursday, the 24th day of February, 2011
CA/C/44/2010
RATIO
CONSEQUENCE OF NOT SEEKING AND OBTAINING THE STATUTORY CONSENT OF A JUDGE BEFORE COMMENCING A TRIAL UNDER THE CRIMINAL PROCEDURE LAW OF CROSS RIVER STATE
The entire Judgment is/was a nullity as the statutory consent of a Judge required before trial by the criminal Procedure Law of Cross River State was never sought and obtained before commencement of the trial. PER JAFARU MIKA’ILU, J.C.A.
WHETHER CONVICTION CAN BE BASED ON EVIDENCE OF SPECULATION AND MERE SUSPICION
The accused/appellant’s conviction was based on evidence of speculation and mere suspicion which is not legal Proof. PER JAFARU MIKA’ILU, J.C.A.
DEFENCE OF ALIBI: CONSEQUENCE OF NOT INVESTIGATING THE DEFENCE OF ALIBI WHEN RAISED AT THE EARLIEST OPPORTUNITY
Although at the earliest opportunity, the accused/Appellant raised a defence of alibi that defence was not investigated and that caused doubt on the evidence which ought to be resolved in favour of the accused/appellant. PER JAFARU MIKA’ILU, J.C.A.
WHETHER THE JUDGE CAN PRESUME THE GUILT OF AN ACCUSED AS A RESULT OF AN ATTEMPT TO SETTLE THE CASE AMICABLY OUT OF COURT.
It was wrong for the learned trial Judge to presume the guilt of the accused/appellant as a result of his father’s attempt to settle the case amicably out of court. PER JAFARU MIKA’ILU, J.C.A.
JUSTICES
JAFARU MIKAILU Justice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
Between
SOLOMON UMANA – Appellant(s)
AND
THE STATE – Respondent(s)
JAFARU MIKA’ILU, J.C.A. (Delivering the Leading Judgment): In this case the appellant was charged on one count information with the offence of armed robbery contrary to section 1 (1), (2) (a) of the Robbery and Firearms Act 2004, Laws of the Federation. The trial commenced on the 18th of May, 2006 and at the end of the trial the case was adjourned to 19th October, 2009 for judgment. At the end of the trial court held that the prosecution had proved all the ingredients of the offence of armed robbery against the accused/appellant and proceeded to convict him and it sentenced him to death.
Before the trial court it was the accused/appellant’s defence that he was in his family house at No 4c Musaha Street, Calabar with his wife and children and also with his father, mother and siblings on the night the incident occurred.
The particulars of his defence of alibi were made available to the police in his extra judicial statement exhibit ‘A’ made at the earliest opportunity but the police failed or refused to investigate the alibi or furnish the lower court with the reasons the alibi of the appellant was not investigated, but the court in delivering its judgment rejected the alibi and sentenced the appellant to death without a proper consideration of the appellant’s defence of alibi.
Before this court briefs of argument have been filed and exchanged. In the brief of argument of the appellant the issues formulated for determination read as follows:-
1. Whether the entire proceedings, and or, judgment of the lower court was/is not a nullity, having regards to the fact that the required consent by a Judge as provided for in section 309(2) of the Cross River State Criminal Procedure Law 2004 was not obtained before the said information was preferred against the accused/appellant (Ground 1).
2. Whether or not the accused/appellant was properly identified as he was not arrested at the alleged scene of crime but sometime after and the victim PW2 never described him to the police when he was making a complaint of the armed robbery to the police and no identification parade was conducted by the police when accused/Appellant was subsequently arrested.
(Ground 2).
3. Whether or not the trial Judge’s finding or observation that the DW 2 accused/Appellant’s father had gone to the victim’s house to arrange a settlement out of court for the accused/appellant had heightened the learned Judge’s suspicion that the accused/appellant was the Person who robbed PW 2 (Grounds 3, 4 and 5).
4. Whether or not the Plea of alibi put up by the accused/appellant was properly investigated, rebutted and considered by the trial Judge (Ground 6).
5. Considering the entire evidence was the learned trial Judge right when he held that the Prosecution had proved all the ingredients of the offence of armed robbery beyond reasonable doubt against the accused/appellant (Ground 7).
On the other hand, in the respondent’s brief of argument the issues formulated for determination in this appeal read as follows:-
(a) Whether consent of a Judge was sine qua non to filing of the charge before the lower court considering the Provisions of section 342 (2) of the Cross River State Criminal Procedure Law, 2004, section 1 and 2 of Criminal Procedure (Amendment Edict 1984, Edict No. 2 of 1984 and sections 4 (2) and 6 of the Revised Edition (Laws of Cross River State) Law, 2004.
(b) Whether identification parade was necessary when PW 2 had a long encounter with DW 1 during the robbery and personally identified DW 1 (sic) later and caused his arrest.
(c)Whether or not the learned trial Judge’s findings or observation that the DW 2 accused/appellant’s father had gone to the victims house to arrange a settlement out of court for the accused/appellant heightened the Judge’s conviction that the accused/appellant was the person who robbed PW 2.
(d) Whether investigation to rebut the plea of alibi was necessary when the facts adduced and accepted by the lower court fixed DW 1 at the scene of crime.
(e) Whether the prosecution proved the guilt of the appellant as required by law.
I have gone over the entire proceedings of the trial Judge and the arguments of both counsels. I am of the following view.
a. The entire Judgment is/was a nullity as the statutory consent of a Judge required before trial by the criminal Procedure Law of Cross River State was never sought and obtained before commencement of the trial.
b. The Accused/Appellant was not properly identified as no identification Parade was conducted when the accused/appellant was not arrested at the scene of crime.
c. The accused/appellant’s conviction was based on evidence of speculation and mere suspicion which is not legal Proof.
d. Although at the earliest opportunity, the accused/Appellant raised a defence of alibi that defence was not investigated and that caused doubt on the evidence which ought to be resolved in favour of the accused/appellant.
e. It was wrong for the learned trial Judge to presume the guilt of the accused/appellant as a result of his father’s attempt to settle the case amicably out of court.
The entire evidence led by the prosecution is unwarranted, unreasonable and cannot support the conviction.
In the final conclusion I find merit in this appeal and I allow it. The entire proceedings of the trial court and the judgment and sentence are quashed. An order of discharge and acquittal is hereby entered.
The appeal is allowed.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have had the benefit of reading in advance the draft of the leading judgment just read by my learned brother Ja’faru Mika’ilu, JCA. I agree with the final conclusion reached therein to the effect that this appeal has merit and it should be allowed. I have nothing to add. I abide by the consequential orders made therein regarding the discharge and acquittal of the appellant herein. Appeal allowed.
ISAIAH OLUFEMI AKEJU, J.C.A.: My learned brother, Jafaru Mika’Ilu JCA gave me the privilege of reading the draft of the lead judgment just delivered by him. I am of the view that he has considered the issues and arrived at a proper decision. I agree that the appeal has merit and I too allow it.
Appearances
NTA A. NTA, ESQ.For Appellant
AND
OKOI E. UKAM, ESQFor Respondent
