THE STATE v. ABDULLAHI SANI(2018)

THE STATE v. ABDULLAHI SANI

(2018) LCN/4632(SC)

In The Supreme Court of Nigeria

On Friday, the 19th day of January, 2018

SC.491/2011

RATIO

WHETHER A COURT IS ALLOWED TO RE-FORMULATE ISSUES FOR DETERMINATION

In Abiola & Sons Bottling Co Ltd v 7 Up Bottling Co Ltd (2012) 7 SC (Pt. ii) p.83, I said that: “An Appeal Court may adopt or even formulate issues for determination that would serve the interest of justice, or/and address the real grievance in an appeal. In Okere v State (2016) LPELR-26057 Peter-Odili JSC said that:- “… the Court has the leeway to redraft such issues in a manner to show the light to what is really in controversy in the interest of justice and so the Court seeking accuracy, clarity and brevity would design the issues to suit the purpose on ground.” In Kayode v. State (2016) LPELR-40028 Ariwoola JSC said: “… the Court is not only obliged but entitled to reframe or reformulate issues from the competent grounds of appeal filed by the appellant for the purpose of clarity and precision and to lead to a proper determination of an appeal.” See Latunde & Anor v. B Lajinfin (1989) 5 SC p. 67 Awojugbagbe Light Industries Ltd v. P.N. Chinukwe & Anor (1995) 4 NWLR (Pt. 390) p.378. Ogunbiyi v Ishola (1996) 6 NWLR (Pt. 452) p.15 It must be abundantly clear that an Appeal Court has discretion to reformulate issues for determination by both sides in the interest of justice. Where as in this case there is a complaint that the Court of Appeal by reformulating issues has taken over the duty of counsel and handled the case for them, the burden lies on the party complaining to show that fresh issues do not better address the real grievance in the appeal and is not geared towardsmachieving substantial justice. Issue one is easily resolved against the appellant since learned counsel for the appellant never discharged the burden in his brief. By no stretch of imagination does the reformulation of issues by the judge amount to the judge taking over the job of counsel, rather it is the duty of the judge at all times to seek substantial justice and this can only be achieved if issues that address the real grievance in the appeal are considered by the Court. In this way an appeal would be determined correctly and the justice system would be highly commended rather than derided. PER OLABODE RHODES-VIVOUR, J.S.C.

ELEMENTS OF THE OFFENCE OF ARMED ROBBERY UNDER SECTION 1 (2) (A) OF THE ROBBERY AND FIREARMS ACT THAT MUST BE ESTABLISHED BY THE PROSECUTION TO SUCCESSFULLY PROVE ITS CASE

To succeed the prosecution must prove the following elements of the offence of armed robbery under Section 1 (2) (a) of the Robbery and Firearms Act beyond reasonable doubt. (a) There was a robbery or series of robberies; (b) The robbery or series of robberies were carried out with offensive weapons; (c) The accused person participated in the robbery. See Ogudo v State (2011) 18 NWLR (Pt. 1278) p.1 Bello v State (2007) 10 NWLR (Pt. 1043) p. 564, Alabi v State (1993) 7 NWLR (Pt. 307) p. 511, Suberu v State (2010) 8 NWLR (Pt. 1197) p. 586. PER OLABODE RHODES-VIVOUR, J.S.C.

WHAT IS REQUIRED OF THE PROSECUTION IN ALL CRIMINAL TRIALS

It must be said again and again that in all criminal trials the prosecution must prove its case beyond reasonable doubt and this burden is discharged by the prosecution calling witnesses to give compelling evidence against the accused person with relevant exhibits to lend credence to oral evidence. PER OLABODE RHODES-VIVOUR, J.S.C.

WHEN A TRIAL WITHIN TRIAL IS TO BE CONDUCTED

It is very well settled practice in this country that where on the production of a confessional statement it is challenged on the ground that the accused person did not make it at all, the question of whether he made it or not is a matter to be decided by the learned trial judge in the course of preparing the judgment. In such circumstances objection made by counsel should be disregarded by the judge as such objection does not affect the admissibility of the statement and so the statement should be admitted as the issue of voluntariness of the statement does not arise for a decision. But where the admissibility of the statement in evidence is objected to on the ground that it was not voluntary in that the confession was beaten out of the accused person, what is attacked is the admissibility in evidence of the confessional statement and a trial within trial or mini trial must be held. See Queen v Igwe (1960) 5 FSC p. 55 Ikpasa v Bendel State (1981) 12 NSCCP p. 300 PER OLABODE RHODES-VIVOUR, J.S.C.

SOLE PURPOSE OF A TRIAL WITHIN TRIAL; HOW THE PROCEEDING OF A TRIAL WITHIN TRIAL IS COMMENCED; WHETHER A TRIAL WITHIN TRIAL AND THE MAIN TRIAL CAN BE TAKEN TOGETHER

The sole purpose of a trial within the main trial is to test whether the confessional statement to be tendered by the prosecution was made voluntarily by the accused person or whether he was forced or induced to make it. Once a trial within trial is ordered by the trial judge the main trial is suspended until the conclusion of the trial within trial. The trial within trial commences with the state calling witnesses, usually police officers who would be examined under oath by the state and cross-examined by the defence. The witnesses for the state are to satisfy the Court that the accused person made the confessional statement voluntarily while the defence counsel is to show the contrary i.e that the accused person was forced or induced to make the statement. After the state concludes its evidence the accused person goes into the witness box to explain to the Court how he was forced, or induced to make the statement. He may call witnesses, but they can only be called after he has given evidence. I have reproduced extracts from proceedings in the trial Court on the mini trial. It is so clear that the learned trial judge made no attempt to follow well laid down procedure in conducting the trial within trial. It was wrong for proceedings in the trial within trial and the main trial to be taken together, and allowing the accused person no time whatsoever after the Ruling on the trial within trial was delivered before delivery of judgment in the main trial. Such a procedure is unknown to criminal procedure and prejudicial to the accused person even if his counsel consents to such strange procedure. The overall interest of justice is clearly in question. Lumping the trial within trial with the main trial clearly compromised the respondent’s right to a fair hearing as he was denied the opportunity after the Ruling to decide how to go about his defence before judgment was delivered. The accused person should not be denied that right even if his counsel acquiesced to this irregular procedure. This is premised on the position of the law that fair hearing in a criminal trial cannot be waived. It must never be forgotten that this is a criminal trial that carries the death penalty. Substantial justice must be seen to be done. Reliance on technicalities would definitely lead to injustice. An accused person must always be given the benefit of the doubt when there are blunders in the case of the prosecution. None compliance with well laid down procedure would never result in the Court achieving substantial justice. We are not satisfied with the procedure adopted by the learned trial judge in the conduct of the trial within trial. The trial within trial is accordingly declared a nullity. PER OLABODE RHODES-VIVOUR, J.S.C.

JUSTICES

OLABODE RHODES-VIVOUR Justice of The Supreme Court of Nigeria

MARY UKAEGO PETER-ODILI Justice of The Supreme Court of Nigeria

CLARA BATA OGUNBIYI Justice of The Supreme Court of Nigeria

AMIRU SANUSI Justice of The Supreme Court of Nigeria

SIDI DAUDA BAGE Justice of The Supreme Court of Nigeria

Between

THE STATE Appellant(s)

AND

ABDULLAHI SANI Respondent(s)

OLABODE RHODES-VIVOUR, J.S.C.(Delivering the Leading Judgment): The respondent as the 2nd accused person was arraigned before a Katsina State High Court on two counts which reads:
COUNT ONE
That you 1. Babangida Gambo 2. Abdullahi Sani on or about the 22th July 2004 around 2.50 hours at Tsame quarters in Daura, Daura Local Government Area of Katsina, State committed the offence of robbery by breaking into the house of one Salisu Lawal while armed with dangerous weapons to wit:
Sticks, Knives, Sword, Gun, attacked the said Salisu Lawal and members of his family, threatened to kill him and robbed him of the sum of 108,000.00. 100 France Francs and other valuables including one Radio Cassette recorder, two transistor Radio, one Toshiba Video machine, one Phillips pressing iron, two pairs of caftan and Trousers, and thereby committed an offence punishable under Section 1(2)(a) of the Robbery and Firearms Act, Cap 398 Laws of the Federation of Nigeria 1990.
COUNT TWO
That you 1. Babangida Gambo 2. Abdullahi Sani on or about the 22 July 2004 around 2.50 hours at Tsame quarters in Daura, Daura Local Government Area of

Katsina State committed the offence of robbery by breaking into the house of one Hadiza Salisu while armed with dangerous weapons to wit:
Sticks, Knives, Sword, Gun, attacked her and robbed her of four bundles of wrappers valued at N11,200.00, two women sewn cloths valued at 400,00, a Roll of Toilet Soap valued N150 and thereby committed an offence punishable under Section 1(2)(a) of the Robbery and Firearms Act, Cap 398 Laws of the Federation of Nigeria 1990.

The respondent as the 2nd accused person entered not guilty pleas to both counts.
In proof of its case the prosecution called its first witness on 27 July, 2005 and ended up calling five witnesses. The appellant gave evidence in his defence but did not call any witness. A trial within trial was conducted but a strange procedure was adopted by the learned trial judge. This procedure would be addressed later on in this judgment. In a Ruling delivered on the trial within trial the appellant’s statements were admitted as exhibits F and F1.

Aside from exhibits F and F1, exhibit A, Stick, exhibit B, Sword, exhibit C, Stick and exhibit D Hoe handle, exhibit E and E1 statement of 1st

accused person were tendered, but none of these were linked to the appellant.

In a considered judgment the learned trial judge sentenced the respondent and his co-accused to death. His Lordship’s said:
“This Court has considered the confessional statements of the accused persons and hold that it accord with what the prosecution proved before this Court. The inability to impeach the testimony of PW3 who was among the team who brought the 1st accused back to Daura to the scene of the said robbery goes to prove the active participation of the two standing trial before this Court. The 1st accused confirmed the participation of the 2nd accused and the 2nd accused in his statement also confirm how the 1st accused invite him to participate in the robbery. In view of the foregoing I hold that the prosecution has proved its case beyond reasonable doubt and the accused persons ought to be found guilty as charged and I hereby hold that the accused are hereby guilty as per the charge which they had been standing trial.”

Dissatisfied with the judgment of the trial Court, the respondent filed an appeal. It was heard by the Court of Appeal (Kaduna Division).

That Court in a judgment delivered on 22 December, 2010 upset the judgment of the trial Court. The penultimate paragraph of the judgment read:
“……. Hence, having resolved all the three issues in the appellant’s favour, I have no hesitation whatsoever in coming to the inevitable conclusion that the instant appeal is meritorious and same is hereby allowed by me.
The judgment of the Court below delivered on May 7 2007 is hereby set aside. The conviction and sentence passed upon each appellant are also hereby quashed.
Consequently, both appellants are hereby acquitted and discharged.”

This appeal is against that judgment. Briefs were filed and exchanged by counsel. An amended appellant’s brief was filed on 23 October 2017, but deemed properly filed and served on 26, October 2017.

An amended respondent’s brief was filed on 25 July 2017 but deemed properly filed and served on 26 October 2017.
Learned counsel for the appellant B. Nwaokenye Esq., distilled three issues from his Notice of Appeal.

ISSUE 1:
Whether the learned Honourable Justices of the Court of Appeal, were right when they held that they had the powers to

reformulate, and indeed, reformulated the defective issues for determination set before them by the appellant, at the Court below.
ISSUE 2
Whether the learned Honourable Justices were right when they held that the judgment of the High Court was not supported by evidence, when the record of proceeding showed otherwise.
ISSUE 3
Whether the Honourable Justices of the Court of Appeal were right when they held that the process/procedure adopted by the trial judge compromised the respondent right to fair hearing.

Learned counsel for the respondent A.A Malik Esq., adopted the issues formulated by the appellant’s learned counsel.
At the hearing of the appeal on 26 October 2017 both counsel simply adopted their briefs.
Learned counsel for the appellant urged the Court to allow the appeal while learned counsel for the respondent urged the Court to dismiss the appeal.

The Facts
Salisu Lawal, PW3 lives with his wife Hadiza Ibrahim, PW4 in Nasarawa Central in Daura. On Thursday July 22, 2004 at about 3 a.m. he was asleep with his wife at home. They woke up when they heard some persons who turned out to be robbers opening the

door of their room. Five persons eventually entered the room armed with knives, sticks, gun and a sword. They searched for valuables and carted away VCD, Video, Iron, Radio, N100,000 and proceeded to PW4’s room where they stole two bundles of wrappers, lace, shoes, two bottles of perfume and left without harming anyone. They spent about two hours ransacking PW3’s home. They made their escape thereafter. The appellant was not arrested at the scene of the crime neither were any of the robbers. The 2nd accused/appellant was arrested after the 1st accused person implicated him as one of the armed robbers. The appellant made a confessional statement. On these facts the appellant and 1st accused person were charged for armed robbery contrary to Section 1(2)(a) of the Robbery and Firearms Act. The other nocturnal robbers were never arrested except the 1st and 2nd accused persons. In light of the fact that learned counsel for the respondent adopts the issue formulated by the appellant’s learned counsel, the three issues formulated by the appellant’s learned counsel would be considered in resolving this appeal.

ISSUE 1
Whether the learned Justices of the Court

of Appeal were right when they held that they had the powers to reformulate and indeed reformulated the defective issues for determination set before them by the appellant at the Court below.

Learned counsel for the appellant observed that in the conduct of any trial, the parties are to handle and prosecute their matter as they deem fit, and not the duty of the judge to take over the job of either party. He submitted that by reformulating the issues for determination the Court of Appeal took over counsel job and handled it for them. Relying on Uso v Police (1972) 11 SC p.37.
Oceanic Bank Int (Nig) Ltd v. Chitex Ind Ltd (2000) 6 NWLR (Pt. 661) p. 494.

He submitted that this Court should hold that the Court of Appeal was wrong to reformulate the defective issues for determination in the respondent’s (appellant in Court of Appeal) brief, contending that the brief ought to have been struck out.

Learned counsel for the respondent observed that an Appeal Court is empowered to redraft, reword, or recouch issues for determination in a brief of argument in order to give the appeal a bearing that will berth its ship at the port of justice. Relying

on
Okere v State (2016) LPELR-26057
African International Bank Ltd v Integrated Dimensional System Ltd & Ors (2012) 11 SC p.1
FRN v Borishade (2015) LPELR – 24301
He urged the Court to discountenance the arguments canvassed by the appellant and resolve this issue in favour of the respondent.

The issues formulated by the appellant in his brief (now the respondent) in the Court of Appeal reads as follows:
1. Whether it is mandatory for a trial judge to weigh the cases of both the prosecution and defence on an imaginary scale during judgment.
2. Whether it is correct, fair and right for a trial judge to lump the ruling of a trial within trial with final judgment.
3. Whether it is right in law for a trial judge to convict without ascertaining the status of the weapon used.

The Court of Appeal reformulated the issues above to read:
1. Whether the learned trial judge had rightly weighed the cases of both the prosecution and the defence on the imaginary scale of justice in the judgment.
2. Whether the learned trial judge was right when he lumped the ruling, in the trial within trial, with the final judgment

resulting in the conviction and sentencing to death of both appellants.
3. Whether the learned trial judge was right in convicting the two appellants inspite of the prosecution’s failure to prove its case beyond reasonable doubt against them.

Why did the Court of Appeal reformulate issues The Court explained:
“However the appellant’s learned counsel failure to relate the issues formulated in the brief to any of the three grounds of appeal is not withstanding.
Having carefully appraised the said grounds of appeal, there is every reason to appreciate the fact that (i) issue No1 relates to ground 1 of the grounds of appeal, (ii) issue No. 2 relates to ground 2, and (iii) issue No3 relates to ground 3 respectively. I have taken into an account of the very obvious fact that the instant appeal is criminal in nature, one that involves the question of life and death for that matter. The Court, therefore has an onerous duty not to accord the so called technical justice a pride of place at the expense of substantial justice as seriously pontificated upon by this Court not too long ago…”

Saulawa JCA continued:
The fundamental objective of

grounds of appeal (vis-a-vis issues for determination) is to notify the other party of the nature of the case he would meet in the appellate Court. Thus once what the appellant is appealing is discernible, it may not be necessary or desirable to strike out the grounds of appeal (or the issues as the case may be) as doing so may amount to denial of his right to appeal and fair hearing, cherishingly and duly enshrined in Section 36 of the Constitution of the Federal Republic of Nigeria. The current trend in the Nigeria Courts has been to ensure that substantial justice, as against technical is done to the parties at all times.

Indeed this Court has in innumerable cases made it abundantly clear that this Court or the Court of Appeal can adopt or reformulate issues. In
Abiola & Sons Bottling Co Ltd v 7 Up Bottling Co Ltd (2012) 7 SC (Pt. ii) p.83, I said that:
“An Appeal Court may adopt or even formulate issues for determination that would serve the interest of justice, or/and address the real grievance in an appeal.
In Okere v State (2016) LPELR-26057
Peter-Odili JSC said that:-
“… the Court has the leeway to redraft such issues

in a manner to show the light to what is really in controversy in the interest of justice and so the Court seeking accuracy, clarity and brevity would design the issues to suit the purpose on ground.”
In Kayode v. State (2016) LPELR-40028
Ariwoola JSC said:
“… the Court is not only obliged but entitled to reframe or reformulate issues from the competent grounds of appeal filed by the appellant for the purpose of clarity and precision and to lead to a proper determination of an appeal.”
See Latunde & Anor v. B Lajinfin (1989) 5 SC p. 67 Awojugbagbe Light Industries Ltd v. P.N. Chinukwe & Anor (1995) 4 NWLR (Pt. 390) p.378.
Ogunbiyi v Ishola (1996) 6 NWLR (Pt. 452) p.15
It must be abundantly clear that an Appeal Court has discretion to reformulate issues for determination by both sides in the interest of justice. Where as in this case there is a complaint that the Court of Appeal by reformulating issues has taken over the duty of counsel and handled the case for them, the burden lies on the party complaining to show that fresh issues do not better address the real grievance in the appeal and is not geared towards

achieving substantial justice. Issue one is easily resolved against the appellant since learned counsel for the appellant never discharged the burden in his brief.
By no stretch of imagination does the reformulation of issues by the judge amount to the judge taking over the job of counsel, rather it is the duty of the judge at all times to seek substantial justice and this can only be achieved if issues that address the real grievance in the appeal are considered by the Court. In this way an appeal would be determined correctly and the justice system would be highly commended rather than derided.

ISSUE 2
Whether the learned Justices were right when they held that the judgment of the High Court was not supported by evidence, when the record of proceedings showed otherwise.

Learned counsel for the appellant observed that the evidence of PW3, PW4 as well as the confessional statement of the respondent established the three basic requirements in the charge of armed robbery. He submitted that the appellant/plaintiff proved the charge against the respondent beyond reasonable doubt. Relying on Bakare v State (1987) 1 NWLR (Pt. 52) p. 679.<br< p=””

</br<

Abeke v State (2007) ALL FWLR (Pt. 366) p. 644
He urged the Court to hold that the judgment of the trial Court was properly supported by evidence.

Disagreeing with learned counsel for the appellant, learned counsel for the respondent observed that it is crystal clear that the prosecution failed to establish the ingredients of the offence. Reliance was placed on Suberu v. State (2010) 8 NWLR (Pt. 1197) p. 586.

He observed that the appellant was not identified as one of the armed robbers, contending that failure of the prosecution to prove the involvement of the respondent in the robbery is fatal and deals a substantial blow to its case. Reliance was placed on Abokokuyanro v State (2016) LPELR-40107.

Concluding he submitted that the judgment of the Court of Appeal wherein it held that the trial Court’s judgment was not supported by evidence cannot be impugned or impeached.

The respondent and B. Gambo were tried by a Katsina State High Court on a two count charge of armed robbery punishable with death, contrary to Section 1 (2)(a) of the Robbery and Firearms Act. He was accused of being one of the five armed robbers that raided the

home of PW3 and PW4 and carted away their belongings. Both victims of the armed robbery did not identify the respondent as one of the armed robbers and no evidence connecting the respondent with the armed robbery except a statement allegedly made by his confessing that he was one of the armed robbers.

After a mini trial was conducted the learned trial judge was satisfied that the confession was free and voluntary and convicted the appellant on it.
To succeed the prosecution must prove the following elements of the offence of armed robbery under Section 1 (2) (a) of the Robbery and Firearms Act beyond reasonable doubt.
(a) There was a robbery or series of robberies;
(b) The robbery or series of robberies were carried out with offensive weapons;
(c) The accused person participated in the robbery. See Ogudo v State (2011) 18 NWLR (Pt. 1278) p.1 Bello v State (2007) 10 NWLR (Pt. 1043) p. 564, Alabi v State (1993) 7 NWLR (Pt. 307) p. 511, Suberu v State (2010) 8 NWLR (Pt. 1197) p. 586.

It must be said again and again that in all criminal trials the prosecution must prove its case beyond reasonable doubt and this burden is discharged by

the prosecution calling witnesses to give compelling evidence against the accused person with relevant exhibits to lend credence to oral evidence.

In this was the elements of the offence (a) (b) and (c) are established and no reasonable person would be in doubt that the accused person committed the offence for which he is charged. The Court of Appeal reviewed the evidence adduced before the trial Court and concluded that the prosecution failed to establish the ingredients of the offence. The Court said:
“From the totality of the pieces of evidence highlighted above it appears rather unequivocally that the identity of the persons that actually attacked PW3 and his family on July 22, 2004 at around 3.00 a.m. is undoubtedly shrouded in mystery. Its evident that the finding of the lower Court in the judgment, alluded to above, could not be supported by the evidence available in the record of appeal.
From the facts and circumstances surrounding the case, it cannot certainly be safely said that the identity of any of the two appellants could be linked to the persons that attacked PW3 and PW4 and robbed them of their monies and other valuable

properties on July 22, 2004 in question.
The fact that the identities of the robbers have not been established is not in doubt. And it is a well settled fundamental principle, that the guilt or innocence of an accused person in the charge of armed robbery as in the instant case depends entirely upon the evidence of identification…
In view of the above highlight the answer to issue No.1 is inevitably in the negative and same is resolved in favour of the appellants.

If ever there was an armed robbery case that needs an identification parade to be conducted to identify who actually were the armed robbers on the night of July 22, 2004 at the home of PW3 and PW4, this is it. Nobody has come to this Court to say that the appellant was among the armed robbers that robbed PW3 and PW4. The two victims of the armed robbery, PW3 and PW4 never said that the appellant was one of the armed robbers, but they positively identified the 1st accused person as one of the armed robbers. There was definitely a robbery at the home of PW3 and PW4 on 22 July, 2004. The robbery appears to have been carried out with offensive weapons, there is no direct oral

evidence by or from the victims of the robbery (i.e. PW3 and PW4) that the appellant participated as one of the armed robbery. The offence of armed robbery punishable under Section 1(2)(a) of the Robbery and Firearms Act was not proved beyond reasonable doubt since the identity of the appellant as one of the robbers was not established by the testimony of PW3 and PW4.
A trial judge must be very sure that the accused person standing in the dock is indeed the armed robber, and so must be extra careful when examining evidence of the prosecution and defence especially on the issue of the identity of the accused person. The accused person must be properly identified before a conviction is sustained on appeal. An accused person should always be entitled to the benefit of doubt.

ISSUE 3
Whether the Honourable Justices of the Court of Appeal were right when they held that the process/procedure adopted by the trial judge compromised the respondent’s right to fair hearing.
Learned counsel for the appellant submitted that the constitutional safeguard under Section 36 of the Constitution was observed during the conduct of the trial within trial. Relying on

Olabode v State (2009) ALL FWLR (PT. 500) p. 607.
Padawa & Sons v. Jatau (2003) FWLR (Pt. 164) 228.

He urged this Court to hold that the procedure adopted by the trial Court did not in any way compromise the right to fair hearing of the respondent. He urged this Court to hold that the judgment of the Court of Appeal was reached in error, and that the appeal should be allowed.

Learned counsel for the appellant observed that at the Court of Appeal the respondent’s (who was the appellant in the Court of Appeal) submission was that the procedure adopted by the trial Court in the conduct of the trial within trial compromised the respondent’s right to fair hearing. Learned counsel for the respondent urged this Court to discountenance the arguments canvassed by the appellant and resolve this issue in favour of the respondent.

The Court of Appeal agreed with the submission above and said that:
“In the instant case, it’s quite evident from the record of appeal that the proceedings regarding both the trial within trial and this main trial were actually lumped together. The appellants closed their defence on 27 December 2007. On 12

February 2007, both counsel informed the Court that they had filed their respective joint written address for both trial within trial and the main trial…”

The Court of Appeal continued:
“….By virtue of the totality of the evidence adduced in the irregular proceeding adopted by the learned trial judge, there’s no doubt that the appellants have been subjected to a great disadvantage, this compromising the well cherished fundamental right to fair hearing thereof… The circumstances surrounding the entire trial of the appellant have resulted in an unfortunate travesty of justice, and this outrageous…. Thus both issues 2 and 3 are hereby resolved in favour of the appellant’s (respondent in this Court).

I must seriously comment on the conduct of a trial within trial (mini trial). Babangida Gambo the 1st accused person and the appellant were charged on two counts of armed robbery. On 27 July 2005 Cpl Abu Musa gave evidence as PW1. The confessional statement of the 1st accused person was to be tendered through him when counsel for the 1st accused person objected on the ground that the statement was made after threat and intimidation. Mr. Sabi’u

counsel for the prosecution applied for trial within trial. The learned trial judge ordered that trial within trial will be conducted on the next adjourned date.
Mr. Sabi’u – I will stop this witness until the trial within trial is conducted then he will conclude his testimony.

The Court stopped hearing testimony from PW1 and started hearing testimony from PW2. PW2 concluded his testimony on 27 July 2005 and further hearing was adjourned to 26 September 2005 and again to 19 October 2005 with no evidence taken.

On 19 October 2005 PW3 gave evidence. The trial was adjourned to 7 November 2005 for continuation of hearing in trial within trial. (it must be noted that trial within trial had not commenced).

The first witness in the trial within trial gave evidence on 7 November 2005. It was Cpl Abu Musa, who gave evidence was PW1. He gave evidence in the trial within trial as PWA. After he gave evidence PWB, DSP Adamu A. Chibok also gave evidence on 7 November 2005 and concluded on the same day. The case was adjourned to 12 December 2005 for continuation of hearing. PW4 then testified and concluded his evidence. Thereafter the case dragged on

beset with several adjournments due to absence of witnesses, absence of accused persons and or counsel.

There were adjournments from 19 January 2006 to 14 February 2006, to 21 March 2006, to 17 April 2006, to 10 May 2006 and to 5 June 2006, to 10 July 2006, 27 September 2006, 4 October 2006, 18 October 2006 and then 22 November 2006 when PW5 was taken. It was he who took the statement of the appellant.

In an attempt to tender the appellant’s statement there was objection from appellant counsel that the statement was obtained under duress.

Mr. Sabiu applied for trial within trial to determine the voluntariness or otherwise. He applied and was granted permission to take PW5 as first witness for trial within trial. PW5 gave evidence as PWA. PWB was then called on 18 December, 2006. After he concluded evidence further hearing was adjourned to 27 December 2006. On that day Mr Sabi’u informed the Court that he had called his witnesses in the trial within trial and that he had only one witness to call in the main trial. The learned trial judge ordered the defence to open defence in trial within trial. The 1st accused person gave evidence as DWA. DWB

(i.e the appellant gave evidence) DWC and DWD also gave evidence.

At the end the learned trial judge ordered that the testimony of DWA, DWB, DWC and DWD be and is hereby adopted as the testimony of DW1, DW2, DW3 and DW4. Then DW4 was taken (see page 73) after DW4 concluded her testimony this is what transpired.
Court- When do you wish to exchange your address for adoption

There was no answer from counsel, yet the trial judge adjourned to 31 January 2007. (see page 73).
Then on 12 February 2007 learned counsel for the accused persons told the Court:
“We have filed our written addresses in both the main trial and trial within trial and the prosecution has been duly served. We wish to adopt same.
Court: It is noted that the defence have adopted their written addresses for the main trial and the trial within trial this case is now adjourned to 21 February 2007 for adoption of written addresses by counsel to the prosecution.”

There is no record of proceedings on 21 February 2007, 12 March 2007 and 19 March 2007, but on 20 April 2007 a Ruling on the no case submission was delivered. The penultimate paragraph reads:
This Court

will consider the said statement in the course of writing its judgment and that is when it will accord the said statements probative value if any. In the meantime they are hereby admitted in evidence as exhibit E and E1 and exhibit F and F1 for the 1st accused Babangida Gambo and the 2nd accused Abdullahi Sani respectively.

After the Ruling was read, learned counsel for the prosecution, Mr. Sabi’u adopted his address in the main trial. Judgment in the main trial was delivered a week later, i.e. on 7 May 2007.

The Court of Appeal condemned the procedure adopted by the trial Court for the trial within trial. It is very well settled practice in this country that where on the production of a confessional statement it is challenged on the ground that the accused person did not make it at all, the question of whether he made it or not is a matter to be decided by the learned trial judge in the course of preparing the judgment. In such circumstances objection made by counsel should be disregarded by the judge as such objection does not affect the admissibility of the statement and so the statement should be admitted as the issue of voluntariness of the

statement does not arise for a decision. But where the admissibility of the statement in evidence is objected to on the ground that it was not voluntary in that the confession was beaten out of the accused person, what is attacked is the admissibility in evidence of the confessional statement and a trial within trial or mini trial must be held. See
Queen v Igwe (1960) 5 FSC p. 55
Ikpasa v Bendel State (1981) 12 NSCCP p. 300

forced or induced to make the statement.
After the state concludes its evidence the accused person goes into the witness box to explain to the Court how he was forced, or induced to make the statement. He may call witnesses, but they can only be called after he has given evidence.
I have reproduced extracts from proceedings in the trial Court on the mini trial. It is so clear that the learned trial judge made no attempt to follow well laid down procedure in conducting the trial within trial.
It was wrong for proceedings in the trial within trial and the main trial to be taken together, and allowing the accused person no time whatsoever after the Ruling on the trial within trial was delivered before delivery of judgment in the main trial. Such a procedure is unknown to criminal procedure and prejudicial to the accused person even if his counsel consents to such strange procedure.
The overall interest of justice is clearly in question. Lumping the trial within trial with the main trial clearly compromised the respondent’s right to a fair hearing as he was denied the opportunity after the Ruling to decide how to go about his defence before

judgment was delivered. The accused person should not be denied that right even if his counsel acquiesced to this irregular procedure. This is premised on the position of the law that fair hearing in a criminal trial cannot be waived.
It must never be forgotten that this is a criminal trial that carries the death penalty. Substantial justice must be seen to be done. Reliance on technicalities would definitely lead to injustice.
An accused person must always be given the benefit of the doubt when there are blunders in the case of the prosecution. None compliance with well laid down procedure would never result in the Court achieving substantial justice.
We are not satisfied with the procedure adopted by the learned trial judge in the conduct of the trial within trial. The trial within trial is accordingly declared a nullity. Exhibits F and F1 which were admitted in evidence in the trial within trial were wrongly admitted as the procedure adopted was wrong. After considering all the arguments we think that the Court of Appeal could have come to no other conclusion, and that the appeal must be dismissed.

This appeal is hereby dismissed. The

judgment of the Court of Appeal is affirmed. This in effect means that the appellant is acquitted on both counts and discharged from Court.

MARY UKAEGO PETER-ODILI, J.S.C.: I agree with the judgment just delivered by my learned brother, Olabode Rhodes-Vivour JSC and to place on record that support I shall make some comments.

This is an appeal against the judgment of the Court of Appeal, Kaduna Division delivered on 22nd December, 2010 in which the Court below set aside the judgment of Abdullahi Yusuf J. of the Katsina State High Court, Daura delivered on 7th May, 2007. The Court below further quashed the conviction and sentence of the respondent and acquitted and discharged the respondent.

In dissatisfaction with the decision of the Court of Appeal, the appellant has come before the Supreme Court on a three ground Notice of Appeal filed on the 14th January, 2011.

FACTS STATED BRIEFLY
The facts relevant to this appeal are that the respondent herein and one Babangida Gambo were charged before the High Court of Katsina State, Daura Judicial Division on a two (2) count charge bordering on Armed Robbery punishable

with death contrary to Section 1 (2) (a) of the Robbery and the Fire Arms Act Cap 398 Laws of the Federation of Nigeria 2004.

The respondent in the course of trial retracted his confessional statement and the Court went into a mini-trial. The learned trial Judge conducted the mini-trial together with the main trial and at the end of the mini trial admitted the respondent’s confessional statement despite he and his co-accused alleging that the statement was obtained under duress. At the close of the trial, the respondent was convicted and sentenced to death by hanging by the learned trial Court.

The fuller background details are well set out in the lead judgment and so no need restating them here save for when the occasion calls for a reference to any part of those facts.

On the 26th October, 2017 date of hearing, learned counsel for the appellant, Benjamin Nwaokenye Esq adopted the amended appellant’s brief of argument settled by Emeka Ozoani Esq. filed on 23/10/17 and deemed filed on 26/10/17. In it were distilled three issues for determination, viz:
1. Whether the learned Honourable Justices of the Court of Appeal were right when they

held that they had the power to, and indeed reformulated the defective issues for determination set before them by the appellant at the Court below.
2. Whether the learned Honourable Justices were right when they held that the judgment of the High Court was not supported by evidence when in actual fact, the record of appeal show otherwise.
3.Whether the learned Honorouable Justices were right when they held that the process/procedure adopted by the trial judge compromised the respondent’s right to fair hearing.

A.A. Malik Esq. of counsel for the respondent adopted the amended respondent’s brief of argument filed on 25/7/17 and deemed filed on 26/10/17. He adopted the issues as formulated by the appellant which are also good enough for my use in the consideration and determination of this appeal.

ISSUES 1, 2 & 3
1. Whether the learned justices of the Court of Appeal were right when they held that they had the power to reformulate the defective issues for determination set before them by the appellant qua respondent (Ground 1)
2. Whether the learned justices of the lower Court were right when they held that the judgment

of the High Court was not supported by evidence (Ground 2)
3.Whether the learned justices of the lower Court were right in holding that the judgment of the trial Court was perverse for not considering the respondent’s evidence laid before it and thus constituted a breach of his right to fair hearing (Ground 3)

Canvassing the position of the appellant, learned counsel contended that the duty of the Court is to arbitrate and direct the course of proceedings according to the Law and it is not for the judge to take over the job of either party. That by reformulating the issues for determination, the Court below took over their job and handled the same for them. He cited Uso v Police (1972) 11 SC 37.

That it is not for the Court to grant reliefs not before them and conduct the proceedings in a way as to show a tilt to one of the parties. That Order 17 Rule 3 of the Court of Appeal Rules 2007 is clear and apt with regard to what a Brief of Argument should contain and in the event of a defect in the appliance of the Rules of Court, the Court’s only option is to discountenance the brief and strike it out. He cited Benneth N. Okere v Prince O. D. Amadi

& Ors. (2006) SC 289: Oceanic Bank Int. (Nig) Ltd. v Chetex Ind. Ltd (2000) 6 NWLR (Pt. 661) 494; Dada v Dosunmu (2006) 18 NWLR (pt. 1010) 134; Animashaun v UCH (1996) 10 NWLR (Pt. 476) 65.

Learned counsel for the appellant further submitted that Section 132 of the Evidence Act provides that the burden of proof in a proceeding is on that party who fails if no evidence was given on either side which is akin to the principle that he who asserts must prove, failure of which leads to the loss of the case. That the onus of proof in this criminal trial on the prosecution is proof beyond reasonable doubt which the prosecution provided in this case at hand at the Court of trial. He referred to the cases of Miller v Minister of Pensions (1947) 2 ALL ER, 372: Bakare v State (1987) 1 NWLR (Pt. 52) 679: Abeke v State (2007) ALL FWLR (Pt. 356) 644 at 659.

For the appellant it was contended that contrary to the stance of the other side that the respondent was given an opportunity of hearing according to the Law at the trial Court and so this allegation of a breach of fair hearing was not sustainable. The cases of Padawa & Sons v Jatau (2003) FWLR (Pt. 164)

228; Kotoye v CBN (1989) 1 NWLR (Pt. 98) 419 referred to.

For the respondent, it was contended that the Court below did not falter or commit an error of Law when they utilized the respondent’s (appellant therein) brief in arriving at their judgment and acted in order in reformulating the issues in the determination of the appeal before them. That the appellant is pandering to whims of technicalities which cannot take the place of substantive justice. It was cited the following cases:
Akinpelu v Adegbore (2008) 10 NWLR (Pt. 1096) 531 at 557; Bello v Oyo State (1986) NWLR (Pt. 45) 828 at 838; Jev v Iyortom & Ors. (2015) LPELR – 24420 SC: Okere v State (2016) LPELR – 26057 (SC) etc.

Learned counsel for the respondent submitted that an appellate Court has the competence and indeed the power to review evidence adduced before the trial Court and make appropriate findings therefrom where as in this case the trial Court’s findings of fact are perverse. He cited:
Ebba v Ogodo (1984)1 SCNLR 372; Idundun v Okumagba (1976) 1 NMLR 200; Suberu v State (2010) 8 NWLR (Pt. 1197) 586.

He further stated that the

evidence led by the respondent now appellant at the trial Court failed to meet the required standard of proof which is proof beyond reasonable doubt. He cited Chukwuma v FRN (2011) 13 NWLR (Pt.1264) 391 at 408; Abokokuyanro v The State (2016) LPELR – 40107 (Sc); Osuagwu v The State (2016) LPELR – 4086 (SC) etc.

That the Law remains that where the trial Court reached a decision contrary to the evidence before it, the appellate Court cannot close its eyes to such a perverse decision and should reverse it. He cited Sapo v Sunmonu (2010) 5 SCNJ 1 at 25: Joseph v The State (2011) 16 NWLR (Pt. 1273) 226 at 250.

The main grouse of the appellant is that the issues framed by them were not attended to and that this being a major error by Court should make the Supreme Court reverse the decision arrived at by that perceived error of the Court below.

The Court below in redesigning the issues as crafted by the appellant before it, who is now the respondent had given the reasons for so doing thus:
“However, the appellant’s learned counsel’s failure to relate the issues formulated in the brief to any of the three grounds of appeal is notwithstanding.

Having carefully appraised the said grounds of appeal, there is every reason to appreciate the fact that (1) issue (sic) No.1 relates to ground 1 of the grounds of appeal; (11) issue No. 2 relate to ground 2: and (111) issue no 3 relate to ground 3, respectively. I have taken into an account the very obvious fact that the instant appeal is criminal in nature; one that involves the question of life and death for that matter. The Court therefore has an onerous duty not to accord the so called technical justice a pride of place, at the expense of substantial justice seriously pontificated upon by this Court not too long (sic) ago”
The fundamental objective of the grounds of appeal (vis-a-vis) issues for determination to notify the other party of the nature of the case he would meet in the appellate Court.
(Thus) Once what the appellant is appealing is discernible, it may not be necessary or desirable to strike out the grounds of appeal (or the issues as the case may be) as doing so may amount to decimal of his right of appeal and fair hearing cherishingly and duly enshrined in Section 36 of the Constitution the Federal Republic of Nigeria, 1999. The

current trend in the Nigerian Courts has been to assure that substantial justice as against technical justice is done to the parties at all times.”

Clearly what was of the focus of the Court below was substantial justice which that Court was not prepared to sacrifice for technical justice. Also within sight was the fact that an infraction which obviously was due to mistake of counsel cannot have its repercussion visited on a hapless client who is fighting for his liberty and life. Stated another way is that the Court of all cadres should be mindful of the paramount interest of justice and the right of a litigant to be protected even in the face of an improperly crafted process presented in a clumsy inarticulate way. Therefore the Court has to bring out with clarity what it is dealing even if it means reformulating the issues so long as they are not outside the presented in a clumsy inarticulate way. Therefore the Court has to bring out with clarity even if it means reformulating the issues so long as they are not outside the grounds of appeal or the Court can use the issues crafted by one side if it fits the bill. The important thing is that the

issues utilized arise from valid grounds of appeal and the dispute is brought to light for consideration whereby the substantial justice is carried out. See Akinpelu v Adegbore (2008) 10 NWLR (Pt. 1096) 531 at 557: Saleh v Monguno (2006) ALL FWLR (pt. 332) 1411 at 1439 – 1440; Jev v Iyortom & Ors.(2015) LPELR -24420 SC: Okere v State (2016) LPELR – 26057 (SC).

The appellant urges this Court to set aside the judgment of the Court below while restoring the conviction and sentence of the trial High Court. The Court below had deviated from the stance of the trial High Court on the ground that the decision was not borne out of the evidence before it. A recap of what the Court below did would be helpful here and I quote thus:
“For the totality of the pieces of evidence highlighted above it appears rather unequivocally that the identity of the persons that actually attacked the PW3 and his family on the July 22, 2004 at around 3.00 am is undoubtedly shrouded in mystery. It’s evident that the finding of the lower Court below in the judgment, alluded to above, could not be supported by the evidence available in the record of appeal.
From

the facts and circumstances surrounding the case, it cannot certainly be safely said that the identity of any of the two appellants could be linked to the persons that attacked the PW3 and PW4 and robbed them of their and other valuable properties on July 22, 2004 in question.
The fact that the identities of the robbers have not been established is not in doubt. And it is a well settled fundamental principle that the guilt or innocence of an accused person in the charge of armed robbery, as in the instant case, depends entirely upon the evidence of identification.”

It has to be said that the Court of Appeal had the competence and indeed the power to review evidence adduced before the trial Court and in doing so had come up with the appropriate findings different from that of the trial Court which not being supported by the evidence on ground had to have the findings reversed. In other words the evidence adduced at the trial cannot sustain the establishment of the ingredients of the offence of armed robbery which are:
(a) That there was a robbery or series of robberies
(b) That the robbery or each robbery was on armed robbery

(c) That the accused took part in the armed robbery or robberies. See Ebba v Ogodo (1984) 1 SCNLR 372; Suberu v The State (2010) 8 NWLR (pt. 1197) 586 or 614 – 615.
A reiteration is necessary here and that has to do with the prescription under Section 135 of the Evidence Act on the Standard of Proof in a criminal proceeding and it is thus:
Section 135-.
1. If the commission of a crime by party to any proceeding is directly in issue in any proceeding civil or criminal first must be proved beyond reasonable doubt.
2. The burden of proving that any person has been guilty of a crime or wrongful act is, subject to Section 139 of this Act, on the person who asserts it whether the commission of such act is or is not directly in issue in the action.
3. If the prosecution proves the commission of the crime beyond reasonable doubt the burden of proving reasonable doubt is shifted to the defendant.
This Court had interpreted that section in Chukwuma v FRN (2011) 13 NWLR (Pt. 1264) 391 at page 408 where this Honourable Court per Muhammad JSC (as he then was) at page 408, paras D – H expounded thus:
“The burden of proof in our adversarial

system of criminal justice is for the prosecution to prove its case beyond reasonable doubt. In the process the requirement of the Law is that the prosecution has the duty to prove all the essential elements of an offence as contained in the charge. The law places the burden on the prosecution to produce vital material evidence and witnesses to testify during the proceedings before a trial Court comes to the conclusion that an offence had been committed by an accused person. The prosecution does not require a magic wand in order to attain to its proof to be beyond reasonable doubt”. All the prosecution is required to do simply is to put forward to the Court evidence which is so strong, compelling and convincing against the accused such that it leaves no reasonable man in doubt as to the probability of the accused person committing the alleged offence” (Underlining mine).
The yardstick on the standard of proof well set out in the Law and as expatiated in the case of Chukwuma v FRN (Supra) above and situated in con here with the available evidence where the PW3 and PW4, victims of the crime who had difficulty with identifying the appellant as one

of the assailants on the night of robbery. That linkage between the appellant and the offence being absent it can be said that on essential element of the offence of armed robbery is missing and it is fatal to the case of the prosecution now appellant. I place reliance on Suberu v The State (2010) 8 NWLR (pt. 1197) 586 at 614 – 615: Abokokuyanro v The State (2016) LPELR – 40107 (SC); Osuagwu v The State (2016) LPELR- 4086 (SC); State v Danjuma (1997) 5 NWLR (pt. 506) 512: Fatoyibo v A.G. Western Nigeria (1966) WNLR 4; People of Lagos State v Umaru (2014) LPELR -22466 (SC).

Now coming to the final question, if the trial Court’s judgment was perverse and the decision of the Court below so identifying is correct. In answer to that question it has to be stated that a finding of fact or decision which runs counter to pleadings and evidence on record or where the Court whose finding or decision on being reviewed is seen to take into account irrelevant matters or matters outside of what has been presented before that Court as borne on the record. That is where by the finding or decision it is clear the Court shut its eyes to the obvious and the follow up being a

decision that has occasioned a miscarriage of justice or found to be Perverse then an appellate Court such as the Court below was right to remedy the anomaly and for this Court to tow that line of rectitude which is what is at play now. See
Sapo v Sunmonu (2010) 5 SCNJ 1 at 25:
Odom v PDP (2015) 5 NWLR (pt. 1456) 527 at 559 – 560;
Joseph v State (2011) 16 NWLR (pt. 1273) 226 at 250.

In the light of the foregoing and the better reasoning in the lead judgment, I see no merit in this appeal which I too dismiss.
I abide by the consequential orders made.

CLARA BATA OGUNBIYI, J.S.C.: I read in draft the lead judgment of my learned brother, Rhodes-Vivour, JSC just delivered. I agree that the appeal is devoid of any merit and should be dismissed.

My brother has dealt adequately with all the issues raised and I endorse his judgment as mine. I have nothing useful to add. The appeal is dismissed in terms of the lead judgment while the appellant is acquitted and discharged.

AMIRU SANUSI, J.S.C.: I had the advantage of reason before now, the lead Judgment just delivered by my

learned brother Rhodes Vivour JSC and wish to state that I entirely agree with his reasoning and the conclusion His lordship arrived at that this appeal is devoid of any merit and deserves to be dismissed. Even though I have no hesitation in dismissing the appeal, I however wish to advance some comments on some points in support of the Judgment and or for purposes of emphasis. The facts giving rise to this appeal and the submission made by learned counsel to the parties have been admirably summarized in the lead Judgment and therefore need no repetition here.

In one of his submissions, the learned appellant’s counsel complained on the lower Court’s resolve to reformulate its own issues for determination. The law is trite, that an appellate Court has the right or duty where appropriate, to formulate, re-formulate or reframe issue or issues for determination of an appeal especially in a situation where it is of the opinion that the issue(s) as formulated by learned counsel to any of the parties did not encompass the actual points in controversy in the appeal. In doing so however, the issue (s) to be re-formulated by the appellate Court must be consistent

with the ground (s) of appeal. In the instant appeal, it is noted by me, that it is not the complaint of the learned counsel for the appellant that the issues so formulated by the lower Court did not arise from his grounds of appeal. See Yadis (Nig) Ltd vs G.N.I.C Nig Ltd (2007) 14 NWLR (pt 1055) 584 or (2007) 4-5 SC 236. Again, I must say that the grouse of the counsel of the appellant that the lower Court did not consider the issue he raised is of no moment since the issues framed by the lower Court had encapsulated all the issues raised by him and all the points raised in his submissions were well attended to and duly considered. No miscarriage of Justice was occasioned to it at all and also no rules of fair hearing was infringed or violated.

Thus, in view of the more detailed and fuller reasonings contained in the lead Judgment of my learned brother Rhodes Vivour JSC, I also see no substance in this appeal. The appeal lacks merit and is therefore hereby dismissed by me. I endorse the consequential order made in the leading Judgment.
Appeal allowed.

SIDI DAUDA BAGE, J.S.C.: I have had the benefit of reading in draft the

lead Judgment of my learned brother Olabode Rhodes-Vivour, JSC, just delivered. I agree entirely with the reasoning and conclusion reached. I do not have anything to add. The appeal lacks merit, and it is accordingly dismissed by me. Judgment of the Court of Appeal Kaduna Division is hereby affirmed.

Appearances:

Nwaokenye with him, F. Bissong For Appellant(s)

A Malik with him, C. Onumonu, N.I. Nta and G. E. Ejemai For Respondent(s)

Appearances

Nwaokenye with him, F. Bissong For Appellant

AND

A Malik with him, C. Onumonu, N.I. Nta and G. E. Ejemai For Respondent