SOLOMON YOOSU GBAJI V. THE STATE
(2013)LCN/6226(CA)
In The Court of Appeal of Nigeria
On Thursday, the 23rd day of May, 2013
CA/MK/73B/2011
RATIO
FAIR HEARING: CROSS-EXAMINATION
The normal procedure is that at the end of evidence in chief by a witness, be it the prosecution or defence witness, the court asks the question whether the adverse party wants to cross-examine such witness. In other words an opportunity must as a matter of compulsion, be given to a party or his counsel to cross-examine a witness called by the adverse party. Failure to comply with that procedure is a fundamental vice and a breach of constitutional right of fair hearing especially in criminal cases, moreso in a trial involving a capital offence.
It is absolutely erroneous to assume that the proceedings in a trial within trial will suffice for the purposes of the substantive trial. A trial within trial is a separate and distinct trial of its own. Where an accused person contends that he did not voluntarily make the statement credited to him such allegation usually necessitates the holding of a trial within trial in order to determine the voluntariness of such statement and consequently its admissibility in evidence in the main trial. Hence evidence is led separately by both parties after which they will address the court on it and thereafter a Ruling is delivered by the COURT.COURT. SCC AUTA VS STATE (1975) 4 SC 125: EFFIONG VS STATE (1998) NWLR (PT. 562) 362 and NSOFOR VS STATE (2004) 18 NWLR (PT 905) 92 see also ADELARIN LATEEF VS FEDERAL REPUBLIC OF NIGERIA (2010) 37 WRN 85 at 107 where this court per Alagoa JCA provided an elucidation on the concept of trial within trial, thus:-
“It thus 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 state necessary for the court to temporarily halt the main trial upon which the accused person is facing trial and conduct 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 whatever his statement to the Police was voluntarily mode 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” (Underlining for emphasis).
See also DARE JIMOH VS THE STATE (unreported judgment of this court delivered on 30-3-2011 in Appeal NO. CA/I/64/2005. PER SAMUEL CHUKWUDUMEBI, OSEJI, J.C.A.
JUSTICES
JA’AFARU MIKA’ILU Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
MOHAMMED A. DANJUMA Justice of The Court of Appeal of Nigeria
Between
SOLOMON YOOSU GBAJI Appellant(s)
AND
THE STATE Respondent(s)
SAMUEL CHUKWUDUMEBI, OSEJI, J.C.A.: (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Justice Benue State, Makurdi Division, delivered by Hon. Justice Tine Tur on the 17th day of June 2010 wherein the appellant was convicted with two other persons for the offence of Criminal Conspiracy and Armed Robbery.
The charge against the appellant and three others as shown at page 71-73 of the record reads thus:-
HEAD ONE
“That you Owoicho Brown Innocent, Christian Igba, Solomon Gbaji Ayoosu and Kingsley Orjime who is now at large on 9/6/2006 at about 7.00pm at P2, 2nd Avenue, Federal housing estate North Bank, Makurdi within the jurisdiction of this Honourable Court conspired to do an illegal act to wit; attack and rob one Barrister Peter S. Abaagu and his family and to rape Miss Mwuese Anshase at the said address making use of guns and other dangerous weapons to prosecute the said agreement and the some was carried out pursuant to your conspiracy. You thereby committed on offence punishable under Section 5 of the Armed Robbery and Firearms (Special Provision) Act and Section 79 of Penal Code Law.
HEAD TWO
That you Owoicho Brown Innocent, Christian Igba, Solomon Gbaji Ayoosu and Kingsley Orjime who is now at large on 9/6/2006 at about 7.00pm at P2, 2nd Avenue,Federal Housing Estate North Bank, Makurdi within the jurisdiction of this Honourable Court did an illegal act to wit; attacked barrister Aboagu and his family at gun point and other dangerous weapons and robbed him of the sum of N50,000.00 and various items including Nokia 9500, Nokia 6600 Nokia 7650 and a Philips Stereo set. You thereby committed an offence punishable under section 1(2)(b) of the robbery and firearms (special provision) Act.
HEAD THREE
That you Christian Igba on 9/6/2006 at about 7.00pm at p2, 2nd Avenue, Federal Housing Estate North Bank, Makurdi in the residence of Barrister Peter S. Aboagu and within the jurisdiction of this Honourable Court had sexual intercourse with Miss Mwuese Anshase against her will by coercing her to act by the use of guns and other dangerous weapons-handled by you and members of your robbery syndicate. You thereby committed an act punishable under section 283 of the Penal Code law of Northern Nigeria applicable to Benue State
The facts are that one Barrister PS Abaagu (PW1) lives with his family at No B2. 2nd Avenue, Federal Housing Authority Estate, North Bank, Makurdi Benue State. On 9-6-2006, he returned home at about 7pm – 8pm where he met his sister inlaw and daughter in the sitting room. He proceeded to his bedroom and settled down to watch the opening ceremony of the world cup match and while doing so he heard a scream from the sitting room and as he opened his bedroom door to know what was happening, he met the appellant standing there with a pistol in his hand. Half of his face was masked with handkerchief and he was wearing a round neck polo shirt. At the sitting room there were two other men and the one with a rifle used the butt to hit him on the face as he tried to look at him and he fell down. The appellant marched him on the head and told him not to move. By then one of them (2nd accused) was busy raping his sister inlaw. They then led him to his bedroom where he gave them the N50.000 he had at home. They also took his Nokia N9500 communicator, Nokia, 7650 and Nokia 6600. They also took away his Phillips Stereo DVD Player, Seiko wrist watch and a bottle of perfume. Thereafter the robbers herded him, his daughter, sister inlaw and the gateman into the bedroom before they left. He reported the matter to the police that same night. Subsequently, he was invited by the police to identify some recovered stolen items during which he identified his phones and the stereo set. While he was in the office of the commissioner of police, the appellant was brought and he immediately recognized him. The appellant also started shaking when he saw the PW1. Also, through the calls made with his phone after the robbery, the other accused persons were arrested. The appellant denied the charge at the lower court. He said he had nothing to do with the robbery at the PW1’s house. The Nokia N9500 linked to him was bought from one Kingsley for N35,000 and he paid N9000 deposit he later sold the same phone to Christian Igba (2nd accused) for (N50,000).
At the hearing which commenced in the lower court on 4-7-2007. The prosecution called three witnesses through whom exhibits were tendered and admitted in evidence. The appellant and two others charged with him testified in their own defence but called no witness.
Thereafter, both counsel for the prosecution and the defence in their address made oral submissions to the court. In the judgment delivered on 17-6-2010 the appellant with two others were convicted on counts 1 and 2 for the offence of conspiracy and armed robbery. Aggrieved with the decision of the lower court, the appellant filed a notice of appeal on 5-7-2010.
Aggrieved by the decision of the lower court, the Appellant filed a Notice of Appeal containing 9 grounds of appeal on 25-8-2010. The said grounds of Appeal which shorn of particulars needs as follows:
GROUNDS OF APPEAL
(1) “The trial court erred in law when it failed to adequately and properly consider crucial aspects of the defence of appellant that were properly raised before it thereby denying appellant his fundamental right to fair hearing as guaranteed by the constitution of the Federal Republic,
(2) The trial court erred in law when it relied heavily on the evidence of PW4 to convict and sentence appellant to death, when appellant had not been availed the opportunity of challenging the veracity if PW4’s testimony by cross-examination, thereby violating appellant’s fundamental right to fair hearing.
(3) The trial court erred in law in convicting appellant on a 2 count charge of criminal conspiracy and armed robbery and sentencing him to death, when the identification evidence adduced by the prosecution fell far below the standard required by law.
(4) The trial court erred in law when it convicted appellant on a 2 count charge of conspiracy and armed robbery and sentenced him to death, when the identification evidence adduced by the prosecution was full of material contradictions.
(5) The trial court erred in law when in convicting appellant on the 2 count charge of conspiracy and armed robbery and sentencing him to death therefore, it proceeded to make a case against appellant other than that for which appellant was standing trial before it, thereby violating appellant’s fundamental right to fair hearing as guaranteed by the constitution of the Federal Republic.
(6) The trial court erred in law when it held that there was cogent evidence warranting the arraignment of appellant on the 2 count charge of criminal conspiracy and armed robbery, and further that the prosecution had proved its case against appellant beyond reasonable doubt.
(7) The trial court erred in law when it stated that “Defence counsel never cross examined PW1, PW2 &
PW4 to show that 1st, 2nd & 3rd accused persons could not have been at the scene of the crime as alleged on 9/6/2006″ thereby placing on appellant a burden which the law does not place on him.
(8) The trial court erred in low when it convicted appellant of the offence of criminal conspiracy to commit armed robbery and sentenced him to death therefore, when there was no shred of evidence in proof of the charge of conspiracy and the credible evidence before the court had established no link between appellant and the robbery attack of 9/6/2006.
(9) The decision of the trial court is unreasonable and cannot be supported having regard to the evidence adduced before it”.
It suffices to note that by a motion on notice dated 27-2-2013 and filed on 28-2-2013 the appellant sought for the leave of this court to use the Record of Appeal compiled in respect of appeal No. CA/MK/73c/2011. (Brown Owoicho & 2 Ors.) the said leave was granted by this court on 4/3/13.
Briefs of argument were subsequently filed and exchanged by the parties. The Appellants briefs of argument dated and filed on 20-6-11 was settled by F.M Ebofuame Nezan (Mrs.). There is also a reply to the Respondent’s brief of argument. It is dated 21-12-12 and filed on 24-12-12.
The Respondent’s brief of argument dated 30-11-12 was settled by J.S. Tarpav Principal State Counsel, Ministry of Justice, Benue State. At the hearing of the Appeal on 4-03-2013 both parties duly adopted and relied on their respective briefs of argument.
In the appellant’s brief of argument, four issues were formulated for determination as follows:-
1) Whether the Judgment of the trial court demonstrates clear appreciation as well as dispassionate consideration of crucial aspects of the appellant’s defence that were properly raised before it, and if not whether the failure of the court to so appreciate and consider appellant’s defence violated Appellant’s right to fair hearing.
2) Whether the evidence led by the prosecution, in proof of the 2 count charges of conspiracy and Armed Robbery established any nexus between the appellant and the robbery incident of 9-6-2006 to warrant his trial, conviction and sentence on the 2nd charge?
3) Whether the identification evidence led by the prosecution fraught as it was with material contradictions, should have been relied upon by the trial court, sou motu, of the contradictions therein violated Appellant’s right to fair hearing?
4) Whether the heavy reliance by the trial court on the evidence of the PW4 when same has not been tested by the fire of cross-examination violated Appellant’s right to fair hearing, and if so the consequence thereof on the conviction and sentence on the 2 court charge?
For the Respondent, 4 issues were distilled for determination as follows:-
1) Whether the defence of the 3rd Accused/Appellant was fully understood, appreciated and considered by the trial court.
2) Whether fair hearing was duly accorded the 3rd accused/appellant during the trial?
3) Whether the 3rd accused/appellant was linked to the crimes alleged and a fortiori the robbery incidence of 9-6-2006.
4) Whether the prosecution proved its case beyond reasonable doubt as required by law.
Though couched in different languages, the issue raised by the parties are not dissimilar but for this appeal I will adopt the 4 issues as raised in the appellant’s brief of argument.
ISSUE 1
Dwelling on this issue, F.M.E. Nezan (Mrs.) of Counsel for the Appellant submitted that the legal principle of our criminal law that all defences raised by an accused person no matter how week, stupid,
fanciful or doubtful it may appear must be given full fair and dispassionate consideration was not considered by the trial court in its judgment. Learned counsel referred to section 36 of the 1999 Constitution and Section 269(1) of the Criminal Procedure Code. She added that there is no room for a trial court to gloss over the defence of an accused person on the ground that it is fanciful, weak or stupid and in this case it did not pay attention to the appellant’s contention that the evidence led by the prosecution did not link him with the robbery incident of 9-6-2006, especially having regard to the timing of arrest made in connection thereto. Learned counsel referred to the evidence of PW4 under cross-examination in the trial within trial wherein he testified that the 1st accused was the first to be arrested by the Police and he led them to arrest the 2nd accused who in turn led them to arrest the 3rd accused/appellant and that their statements were obtained on the very day of their arrest. However, she says Exhibit G (statement of 1st accused) and Exhibit H (statement of 2nd accused) were date d 14-7-2006 while that of 34d accuse d/appellant was dated 12-7-2006.
Learned counsel then contended that the inference to be drawn from the evidence of PW4 is that the arrest of the appellant could not have been in connection with the robbery incident of 9-6-2006 since he was arrested on 12-7-2006, two clear days before the break in investigation that led to the arrest of 1st and 2nd accused. Learned counsel added that there is therefore a contradiction in the evidence of PW4 when considered along with Exhibits G, H and l, as it was impossible for the appellant to make a statement to the Police on 12-7-2006 for an arrest that was made on 14-7-2006.
Learned counsel further submitted that the trial court did not properly consider the fact that none of the items found with the appellant when he was arrested was part of the items robbed on the night of 9-6-2006 and that the Nokia 16600 is not the same Nokia 6600 said to have been robbed from PW1 and if the trial court had addressed this point it would have come to a different conclusion that none of the robbed items were linked to the appellant and as such he had nothing to do with the robbery on 9-6-2006.
Learned counsel also referred to the finding of the court at page 240 lines 1 -11 of the Record to submit that the way and manner the trial court brought Terkura Antsa into consideration of the case seriously jeopardized the fair trial of the appellant because he was the only accused person who admitted knowing Terkura Antsa and buying a Nokia 16600 from him which phone was not among those robbed from PW1 and the same goes for the Samsung Sound Electronics and Sagem Handset. She added that the appellant did stand trial for receiving stolen property from Terkura Antsa and since the Nokia 16600 was not part of the items robbed from PW1 on the night of 9-6-2006 there was no justification for the trial court to have brought him into the case.
Learned counsel then concluded that the failure of the trial court to make necessary finding on crucial aspects of 3rd appellant’s defence violates his right to fair hearing and occasioned miscarriage of justice.
Responding on behalf of the Respondent J.S. Tarpav, Principal State Counsel, submitted that, to regard the well researched and positive judgment of the trial court as being ‘glossed over’ the defence of the appellant is an abuse and disrespect to the trial court. He added that lawyers should desist from using the cherished concept of fair hearing in shielding themselves and shying away from real legal issue confronting them.
Learned counsel insisted that the name Terkura Antsa was invented by the appellant both in his statement and evidence in court. He added that there is nothing in the whole phone would like Nokia 16600 but rather Nokia 6600 or Nokia 1600,
Learned counsel was also of the stance that it was appellant that brought in Terkura Antsa in the matter but yet failed to call him as a witness and this gives rise to invoking Section I67(d) and 140 of the Evidence Act 2011 against the appellant.
Learned counsel further submitted that the well researched judgment of the trial court which considered point by point the defence of all the accused persons ought not to be disparaged.
Citing the case of GARBA VS UNIVERSITY OF MAIDUGURI (1986) 1 NWLR (PT 18) 550 AT 618, learned counsel listed the constituent of fair hearing as follows:-
a) That a person knows what the allegations against him are.
b) That he knows what evidence has been given in support of such allegation.
c) That he knows what statements have been made concerning those allegations.
d) That he has a fair opportunity to correct and contradict such evidence and
e) That the body investigating the change must not receive evidence behind such persons back.
Learned counsel argued that all the above constituents were duly satisfied as regards that appellant.
On the contention by appellant’s counsel that there is contradiction in the evidence of PW4 and to the date the appellant was arrested and the date he made his statement, learned counsel submitted that the break in the investigation that gave rise to the arrest of the three accused persons were the letter from GLO Company dated 19-6-2006 which was tendered and marked Exhibit F and contains the call log of the Nokia N95 Communicator with GLO Sim Card belonging to PW1 still inside and the revelation of the call log after the robbery led to the arrest of the accused persons as shown in the evidence of PW4. He added that the break in the investigation actions of the Police happened more than 3 weeks before the arrest of the accused persons between 12th and 14th of July 2006 and not 2 days after arrest of appellant as insinuated by appellant’s counsel.
I must at this stage complain bitterly about the manner in which the respondent’s brief was presented. Though 4 issues were formulated for consideration, submission was however made at random with a blend of repetitive arguments. I was therefore burdened with the responsibility of going through the submissions to pick which paragraph relates to or answer that of the appellant. This indeed is very inelegant and a far cry from what an ideal brief of argument should be. I know that there are a number of books on brief writing on sale and admonish counsel to avail themselves with one or two of them. lt will enhance their efficiency in brief writing and also add to their continued legal education which in the end will help in ensuring an efficient administration of justice. As it stands now judges are more often than not over burdened with undeserved duty of ironing out the creases in some legal presentations that ought ordinarily to be rejected but for the interest of justice and altruistic consideration for litigants who must have been waiting for years to know their fate in such matters.
ISSUE 2
Herein, learned counsel for the appellant referring to the charge of conspiracy submitted that the evidence adduced by the prosecution failed to establish the essential ingredients of confederacy as enunciated in the STATE VS OKOH (2009) ALL FWLR (PT 453) 1358 that there must be an agreement or confederacy between accused and some other persons to commit the offence of robbery. She added that the contradiction in the evidence of PW4 when considered alongside Exhibit G-H & I was to render his testimony unreliable and incapable of sustaining a conviction.
Learned counsel also submitted that though the 1st and 2nd accused agreed to know themselves but they both said that they did not know the appellant before they met him in the Police Station and when compared with the evidence of PW4, it will create reasonable doubt as to whether the appellant would have conspired to commit a real robbery. Learned counsel further repeated the arguments raised in issue L to submit that the conviction and sentence of the appellant is unreasonable and unsustainable having regard to the non-existence of credible evidence linking him to the incident of robbery on the night of 9-6-2006.
The Respondent in her brief of argument did not respond to the issue of conspiracy,
ISSUE 3
Learned counsel herein referred to the case of IKEMSON VS THE STATE (1989) 3 NWLR (PT 110) 455 to state that identification parade is essential in the following situations:-
i) Whether the victim did not know the accused person before and his first acquaintance with him is during the commission of the offence,
ii) Where the victim due to time and circumstances might not have had the full opportunity of observing the features of the accused persons.
Learned counsel further submitted that it is settled practice that whenever the case against an accused person depends wholly on the correctness of the identification of the accused, which the defence alleges to be mistaken, the trial court must closely examine and receive with caution and circumspection, the identification evidence called, before convicting the accused in reliance on the correctness of the identification. The following authorities were cited: ABUDU VS THE STATE (1985) 1 NWLR (PT 234) 198: EBIRI VS THE STATE (2004) ALL FWLR (PT216) 200: UKPABI VS THE STATE (2004) ALL FWLR (PT.218) 814 at 820.
In his response learned counsel for the Respondent submitted that the appellant was fingered in the robbery irrespective of any identification parade but the defence only seeks to take undue advantage of the fact that PW2 is uneducated and hinging on her evidence under cross-examination that she does not know where the Police Headquarters is and that she does not know whether the identification parade was conducted inside or outside an office or whether it was conducted at all. He added however, that PW1 and PW2 in their extra judicial statements and evidence in court gave a positive description of the appellants.
ISSUE 4
Dwelling on this issue learned counsel for the appellant was of the stance that failure by the prosecution to make PW4 available for cross-examination, violated his constitutionally guaranteed right to fair hearing under section 36(b)(d) of the 1999 constitution.
According to learned counsel, the PW4 commenced his evidence in chief on 22-10-2008, in the course of which the trial court ordered a trial within trial to determine the voluntariness of the extrajudicial statements of the three accused persons. At the close of the trial within trial on 22-10-2008, the court adjourned the case for continuation of trial within trial, the court delivered its ruling admitting the statements of the three accused persons as Exhibits G-H & I and the case was thereafter adjourned for continuation of hearing to 20-4-2010. Upon the resumed hearing date on 20-4-2010 the prosecuting counsel applied to close the case without making the PW4 available for cross-examination on the substantive trial.
Learned counsel then contended that the failure to make PW4 available for cross-examination is a fundamental and fatal flow that vitiates the trial and conviction of the appellant. She referred to the case of GARBA VS UNIVERSITY OF MAIDUGURI Supra at 618. OBOT VS. C.B.N. (1993) 8 NWLR (PT.310) 140 at 151 and OLATUBOSUN S. NISER (1988) 3 NWLR (PT 80) 25 AT 52 and ADIGUN VS. A.G. OYO STATE (1982) 1 NWLR (PT.53) 678 at 745.
Learned counsel then urged the court to allow the appeal and set aside the conviction and sentence.
Reacting on this issue 4, learned counsel for the respondent submitted that it was incumbent on the defence to cross-examine PW4 and even it he failed to attend court, it was their duty to raise the issue and request or compel his attendance to enable them cross-examine him because of the serious and important nature of his evidence.
Learned counsel tried to distinguish the authorities of OBOT vs CBN (Supra) and OLATUNBOSUN vs. NISER (Supra) because, while in OBOT’S case the appellant did not receive appropriate notification to appear before the disciplinary committee and was not allowed to hear evidence given against him. In the present case, all the investigations made and statements recorded were attached to the charge against the appellant and served on him before the trial commenced. He then concluded that the effect of the failure of the defence to cross-examine PW4 whose evidence is weighty and a high profile and expert witness for that matter as shown in his evidence, the court ought to take the silence of the defence as an acceptance that they do not dispute the facts as presented by the prosecution. Citing AMADI vs NWOSU (1992) 5 NWLR (PT 241) 273 at 284. He then urged this court to hold that the prosecution proved its case beyond reasonable doubt against the appellant.
The appellant filed a reply brief in response to issue raised by the respondent but will find that substantial part of it amount to a virtual re-argument of the issues raises in his brief. But I will however endeavour to refer to it were relevant and necessary. l however agree with his submission in paragraph 1.04 of the reply brief that although in respondent’s brief four issues were formulated for determination but no attempt was made to argue the issues separately as the argument are rendered haphazardly, and lumped together in no particular order and without proper paragraphing, thereby making it difficult to ascertain what issue is being addressed at any point in time. I earlier raised the same alarm and observation in this judgment and I hope that we shall all learn from it and improve on the method and standard of brief writing.
Now to the issues raised in the parties brief of argument. Issue 4 seems to stand out strongly as being capable of determining the way other issues raised in the appeal will go. It will therefore be germane to consider the issue 4 first. It reads:-
(4) “Whether the heavy reliance by the trial Court on the evidence of PW4 when some has not been tested by the fire of cross examination violated Appellant’s right to fair hearing, and if so the consequence thereof on the conviction and sentence on the 2nd count charge”
The arguments of both parties on the issue have earlier been summarized in this judgment.
Now the record of proceedings at page 180 show that the PW4 (Ibezimako Aghanya) (commissioner of police) entered the witness box in the lower court to give evidence in this case on 22-10-2008.
His evidence in chief was quite an extensive one and most of the exhibits including the items robbed form the house of PW1 were tendered in evidence through him. However, when the prosecution sought to tender the extrajudicial statement of the three accused persons through him, the defence objected on the ground that they were confessional statements and not made voluntarily. They requested for a trial within trial. The prosecution opposed it on the ground that the statements were not confessional. The Trial Judge in a considered ruling upheld the request for a trial within trial. The said trial within trial was subsequently conducted in which the PW4 also testified for the prosecution and was crosse xamined. The same goes for the accused persons. The hearing in the trial within trial lingered on from the said 22-10-08 till 25-3-2010 when the parties addressed the court and it was adjourned to 1-4-2010 for ruling. On the 19-4-2010 the lower court delivered the ruling wherein it upheld the argument of the prosecuting counsel that there was no basis for a trial within trial.
The statements of the 3 accused persons were then admitted as EXHIBITS G, H and I respectively.
The proceedings of the lower court on the said 19-4-2010 went as follows: – see page 213 of record.
RULING – Delivered in open court.
COURT – The statement of Brown Owicho Innocent Exhit ‘G’ the statement of Christian lgba – Exhibit ‘H’ and that of Solomon Yoosu Gbaji Exhibit ‘I’
KPOJIME – We want a short date to conclude our evidence. The substantive counsel is away. I do not have the case diary.
AJEBE – No objection
IGYEVER – No objection
COURT: 20th April 2010 for continuation. Accused to remain in custody.
At the resumed sitting on the 20th April 2010 the proceeding went thus:-
20-4-2010
1st accused – present, speaks English.
2nd accused – present, speaks English
3rd accused – present, speaks English.
J. S. Tarpav – for the State.
Chief S.O. Agbo – for the 1st accused.
Chief S. O. agbo and lgyever M. M. for the 2nd accused.
F.T. Ajebe and Richard Akpaghalilo for the 3rd accused.
– Tarpar – I close my case.
Chief Agbo – We are ready to open our defence.
Ajebe – I am ready,
Tarpav – I am ready,
DEFENCE
All the accused persons subsequently entered that defence at the conclusion of which counsel for the parties addressed the court and thereafter judgment was delivered on 17-6-2010.
I took time to go through and reproduce the history of the case at the lower court from the 22-10-08 when PW4 gave evidence down through almost two years of conducting trial within trial till the prosecution suddenly closed its case on 20-4-2010 without much ado in making PW4 available for cross-examination and defence opened immediately. My conclusion in this regard is that serious blunder was committed by both the prosecution the defence and even the lower court. It is rather strange that none of them adverted their mind to the fact that the PW4 has not concluded his evidence in the sense that until he is duly cross-examined by or on behalf of the three accused persons his evidence before the court is incomplete. We are talking here about a vital witness whose activities led to the arrest of the accused persons as well as recovery of the items allegedly stolen from the house of the PW1.
The normal procedure is that at the end of evidence in chief by a witness, be it the prosecution or defence witness, the court asks the question whether the adverse party wants to cross-examine such witness. In other words an opportunity must as a matter of compulsion, be given to a party or his counsel to cross-examine a witness called by the adverse party. Failure to comply with that procedure is a fundamental vice and a breach of constitutional right of fair hearing especially in criminal cases, moreso in a trial involving a capital offence.
It is absolutely erroneous to assume that the proceedings in a trial within trial will suffice for the purposes of the substantive trial. A trial within trial is a separate and distinct trial of its own. Where an accused person contends that he did not voluntarily make the statement credited to him such allegation usually necessitates the holding of a trial within trial in order to determine the voluntariness of such statement and consequently its admissibility in evidence in the main trial. Hence evidence is led separately by both parties after which they will address the court on it and thereafter a Ruling is delivered by the COURT.COURT. SCC AUTA VS STATE (1975) 4 SC 125: EFFIONG VS STATE (1998) NWLR (PT. 562) 362 and NSOFOR VS STATE (2004) 18 NWLR (PT 905) 92 see also ADELARIN LATEEF VS FEDERAL REPUBLIC OF NIGERIA (2010) 37 WRN 85 at 107 where this court per Alagoa JCA provided an elucidation on the concept of trial within trial, thus:-
“It thus 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 state necessary for the court to temporarily halt the main trial upon which the accused person is facing trial and conduct 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 whatever his statement to the Police was voluntarily mode 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” (Underlining for emphasis).
See also DARE JIMOH VS THE STATE (unreported judgment of this court delivered on 30-3-2011 in Appeal NO. CA/I/64/2005.
It follows therefore that whichever prosecution witness in the main trial that is in the witness box when a trial within trial is ordered and conducted cannot be assumed to have concluded his evidence after the ruling on a trial within trial. The defence must be given the opportunity to cross-examine such prosecution witness as per the main trial and where necessary re-examined before his evidence can be deemed valid and the rule of fair hearing duly observed.
This unfortunately was not the case here and such an omission or failure to allow the defence cross-examine the PW4 to all intents and purposes caused a failure of justice. See DIU TULU VS BAUCHI NATIVE AUTHORITY (1965) NMCR 345.
To put it clearly, it is a breach of the constitutional right of an accused person if not given the opportunity to cross-examine a witness or witnesses called by the prosecution. Section 36(6)(d) of the Constitution of the Federal Republic of Nigeria 1999 is very clear on that and it reads:
5.36(6) “Every person who is charged with a criminal offence shall be entitled to:
(d) examine, in person or by his legal practitioners, the witnesses called by the prosecution before any court or tribunal and obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court or tribunal on the some condition as those applying to the witnesses called by the prosecution,”
Failure to abide by the said provision of Section 36(6)(d) of the Constitution in the proceedings of the lower court during the trial of the appellant by not giving him the opportunity to cross-examine the PW4 who incidentally was a vital witness whose evidence was heavily relied upon in the decision reached therein constitutes a breach of his constitutional right to a fair hearing. See SHEHU SEGUN VS THE STATE (unreported judgment of this court delivered on 10/12/2012 in Appeal No. CA/I/71C/2009 where His Lordship A. G. MsheliaA JC stated thus:-
“It is trite that the adherence to the doctrine of fair hearing lies in the procedure adopted by the trial court which procedure must follow all laid down statutory rules. The Apex COURT IN EGEUAFO EKPETO & 2 ORDS. VS. IKONA IVANOGHO & 4 ORS. (2004) 18 NWLR (PT. 905) 394 AT 414 PARAS. D-E had thus to say:- “No doubt the right to, AT 414 PARAS. D-E had thus to say:- “No doubt the right to fair hearing is a fundamental and constitutional right of a party to dispute to be afforded an opportunity to present its case to the adjudicating authority. It was in the procedure to be followed in the determination of the case not in the correctness of the decision of the case. See UNITED BANK FOR AFRICA LTD & ANOR, (SIC) (1990) 6 NWLR (Pt.156) 254.”
See also OLOWOOKERE VS STATE (2012) 12 WRN 89 at 117 wherein this court per Nweze CA held that:-
“Instructively the touchstone for determining the observance of fair hearing in trials is not the question whether any injustice has been occasioned on any party due to want of hearing. It is rather the question whether opportunity of hearing was offered to the parties to be heard, in this case the appellant, thus in order to be “fair hearing” or opportunity to be heard” It must inter alia encompass a party’s right to cross-examine a witness.”
In effect, a breach of the right to fair hearing strikes deeply at the very roots of a trial and renders the whole trial a nullity. See CHIME VS ONYIA (2009) 2 NWLR (PT 1124) 1 AT 77 and ADIGUN VS A.G. OYO.
It follows therefore that failure to afford the appellant the constitutional guaranteed right to cross-examine the PW4 whose evidence was fundamental in reaching a verdict of guilt against the appellant is fatal to the prosecution’s case and renders the whole trial a nullity.
This issue 4 is accordingly resolved in favour of the appellant. The consideration of the said issue 4 has to my mind disposed of the whole appeal. Therefore to proceed to the consideration of the other issues raised will definitely not serve any useful purpose and will thus constitute a mere academic exercise having declared the trial a nullity.
On the whole, this appeal is hereby allowed and the judgment of the High Court of Justice Benue State in charge No MHC/106C/2006 delivered on 17-6-2010 convicting and sentencing the Appellant to death is hereby set aside for being a nullity.
Accordingly the Appellant Solomon Gbaji is hereby discharged.
JA’AFARU MIKA’ILU J.C.A.: I agree with all the reasons given in the lead judgment of my learned Brother Oseji JCA. Therefore the appeal is allowed and the judgment of the High Court of Justice Benue State in charge No: MHC/106C/2006 of 17/06/2010 and sentencing the appellant to death is hereby set aside as a nullity.
The appellant Solomon Gbaji is hereby discharged.
MOHAMMED A. DANJUMA. J.C.A.: I have read in draft before now the lead Judgment of my learned brother Samuel C. Oseji, JCA in this appeal, wherein he allowed that appeal and I agree that the decision cannot be otherwise. I adopt same and join my Lord in allowing the appeal, as the Appellant herein was flagrantly denied his constitutional right of fair hearing as enshrined in Section 36(d) of the 1999 constitution of the Federal Republic of Nigeria.
The PW4, in the proceedings at the trial that led to the conviction of the Accused/Appellant, herein was not cross-examined. PW4 was a vital prosecution witness through whom items allegedly recovered from the Accused and as a part of the alleged items robbed were tendered as exhibit.
The evidence of PW4 formed the pivot of the trial Judgment, as the evidence of the alleged confessional statements was not weighty, the circumstantial evidence was weak. I hold that P.W4’s purported evidence was in-choate as it had not been cross-examined upon. A reliance on an in-choate testimony, no doubt is a violation of the right to fair hearing of the Appellant, who was constitutionally entitled to cross-examine the said PW4. See S.36(6)(d).
This is more so, in a criminal trial.
See the recent decision of this court in DARE JIMOH vs. THE STATE – Appeal No. CA/J/64/2005 delivered on 30/3/2011 unreported; DIU TULU vs. BAUCHI NATIVE AUTHORITY (1965) NMLR 345: SHEHU SEGUN vs. THE STATE NO. CA/J/71C/2009; OLOWO-OKERE vs. STATE (2012) WRN 89 at 117 aptly referred to in the lead Judgment.
There is no gainsaying that a violation of the Appellant’s statutory and constitutional right to cross-examine PW4, whose evidence was made in-choate by the prosecution and yet relied upon by the trial court in convicting the Appellant had shot perilously at the Appellant’s entrenched presumption of innocence in law.
There is no doubt that, before his conviction, the Appellant herein even as an Accused at the High Court was presumed innocent under our constitution and thus imposing on the trial court a duty to subject every item of facts raised for or against him to merciless scrutiny. Nothing should be taken for granted as his liberty was at stake.
In SHANDE v. STATE (2006) 5 LRCN 127 at 139 JJ-140 AF- ACHOLONU, JSC, of blessed memory reiterated the point in his characteristic pungent articulation and a statute sense of Justice, thus:
“When an accused is being tried for any offence whatsoever, because of the principle of law in our constitution that he or she shall be presumed innocent, it behoves of the court to subject every item of facts raised for or against him to merciless scrutiny. Nothing should be taken for granted as the liberty of the subject is at stake”. (Underlining, mine for emphasis).
See also the Ruling of this court in OLAREWAJU LASAKI vs. THE STATE CA/L/1024/2010 delivered on 14th April, 2011, per Danjuma, JCA.
There was no opportunity to have facts arising from cross-examination scrutinized. The Accused/Appellant and the trial court were denied the opportunity. For the aforesaid reason and the further reasons ably articulated in the lead Judgment of my brother Oseji, JCA, the draft of which I had read before now, I concur and also allow this appeal; and abide with the consequential order of setting aside the conviction and the sentence of death made in the charge No. MHC/106C/2006 upon the Judgment of Tine Tur, J. delivered on 17/6/2010.
Solomon YOOSU GBAJI, Appellant herein is accordingly discharged.
Appearances
F.M.E Nezan (Mrs) with N.E. Agoha (Miss) and Okpeaye B.O. (Miss)For Appellant
AND
J.S. Tarpav PSC (MOJ)For Respondent
