UDOKANG v. STATE
(2021)LCN/15744(CA)
In The Court Of Appeal
(CALABAR JUDICIAL DIVISION)
On Friday, November 19, 2021
CA/C/154C/2020
Before Our Lordships:
Mojeed Adekunle Owoade Justice of the Court of Appeal
James Shehu Abiriyi Justice of the Court of Appeal
Muhammed Lawal Shuaibu Justice of the Court of Appeal
Between
UKEME EDET UDOKANG APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
THE DEFENCE OF ALIBI
Alibi is a defence which seeks to persuade the Court that the accused could not possibly be at the scene of the crime as he was somewhere else, where, most probably, there were people who could testify that at the time of the alleged incident or act, he was not at the scene of the crime.
In raising the defence of alibi, the accused must at the earliest opportunity furnish the police with full details of the alibi, to enable the police to check the details. Failure of the accused to furnish the particulars of the alibi, weakens the defence. See SOWEMIMO VS. STATE (2004) 11 NWLR (Pt. 885) 515 SC. PER OWOADE, J.C.A.
MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Akwa Ibom State High Court sitting in the Ikono Judicial Division delivered on 16th January, 2020 and presided over by Honourable Justice Ekerete Ebienyie.
The Appellant was arraigned before the trial Court on 15th December, 2016 along with 10 others on a two count charge of conspiracy to murder contrary to Section 331 of the Criminal code, Cap. 38 Vol. 2 Laws of Akwa Ibom State of Nigeria, 2000 and murder contrary to Section 326 (1) of the same law.
In the course of the trial, precisely on 6th February, 2018, on the application of the prosecution the names of 1st, 2nd and 5th accused persons were struck out of the charge. By the subsequent re-arrangement, the Appellant who was the 7th accused became the 4th accused person in the charge.
During the trial, the prosecution called five (5) witnesses and tendered 23 Exhibits. The Appellant testified for himself as DW3 and called no other witness.
In his considered judgment delivered on 16th November, 2020, the learned trial judge discharged and acquitted three (3) of the accused persons but convicted the Appellant and four (4) others.
Dissatisfied with the conviction and sentencing the Appellant on 11th February, 2020 filed his Notice and Grounds of Appeal in the Registry of the Court below. Thereafter, the Appellant sought and was granted leave by this Honourable Court to amend the Notice of Appeal earlier filed.
Appellant’s brief of Argument of 12th October, 2021 was deemed filed on 18th October, 2021. It is settled by J. O. Idiege, Esq.
Respondent’s brief of Argument which was filed on 30th June, 2021 was also deemed filed on 18th October, 2021. It is settled by Godwin Udom, Esq Assistant Chief State Counsel, Akwa Ibom State.
Learned counsel for the Appellant nominated four (4) issues for determination of the appeal. They are:
Issue 1 – The learned trial judge was wrong when he held that the Defence failed and/or neglected to file its written address and that he had no option than to foreclose the defence.
Issue 2 – The learned trial judge was wrong when he discharged and acquitted other persons but convicted the Appellant charged with the same offence and on the same set of evidence.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>
Issue 3 – The learned trial judge was wrong when he held that the Appellant was one of the boys organized by Eteidung Offiong Ekpenyong to go and attack the deceased and kill him.
Issue 4 – The learned trial judge was right when he held that the prosecution proved the three main ingredients of the offence of murder.
Learned counsel for the Respondent formulated three (3) issues for the determination of the appeal. They are:
1. Whether the learned trial judge exercised his discretion judicially and judiciously when he refused the application of both the prosecution and the defence for an adjournment to enable them present their final written addresses, and whether such refusal affects the Appellant or any other party’s right to be fairly heard at trial.
2. Whether the learned trial judge was right when he convicted the Appellant but discharged and acquitted the Appellant’s co-accused persons with the same offences most especially when defences were not the same.
3. Whether the learned trial judge properly evaluated the evidence of the parties before coming to the conclusion that the prosecution proved the ingredient of the offence of murder as its concerns the Appellant.
On issue 1, learned counsel for the Appellant submitted that the learned trial judge was not right when he held that the Defence failed and/or refused to file its written address and that he had no option than to foreclose the defence. He said that the trial giving rise to the appeal closed on 1st August, 2019 on which date, the charge was adjourned to 22nd October, 2019 for adoption of final addresses. That in between the period was the 2019 Annual Vacation of the Akwa Ibom State High Court which begins every August.
However, that when the case came up on 22nd October, 2019 the learned trial judge refused the application by the defense counsel for an adjournment to file written address. The learned trial judge rather than granting the request for adjournment foreclosed the defence from filing any address and granted the prosecution a dispensation to discard with filing an address. The learned trial judge then adjourned the case to 25th November, 2019 for judgment.
Learned counsel for the Appellant alleged that the two reasons why the learned trial judge refused adjournment to file written address are as stated on page 206 of the Records, first, that:
“Court:
It is my policy not to do this job at the pace and dictates of litigants. I am always persuaded to move by the dictate of justice, to all the parties before me.”
Secondly that:
“I have strong feelings that the addresses would not be filed before the next adjourned date if the case is at all adjourned for addresses. I further have the feeling and a strong one at that, that relatives of the accused persons will not change their uncooperative attitude and got to see counsel.”
Based on the above excerpts, learned counsel for the Appellant submitted that the discretion of the trial judge in refusing adjournment was not exercised judiciously and judicially. He referred to the cases of BASSEY VS. AG AKWA IBOM STATE & ORS. (2016) LPELR – 41244 (CA) pages 28 – 29; UDOTIM & ORS. VS. IDIONG & ORS. (2013) LPELR – 22132 (CA) 13 – 14; YOUNAN & ORS. VS. WILLIAMS & ORS. (2008) LPELR – 3573 (CA) pp. 13 – 18 and submitted that the grant or refusal of an application for an adjournment involves an exercise of judicial discretion and being a judicial discretion, it is not exercised arbitrarily and/or based on speculation.
Appellant’s counsel submitted that the learned trial judge was wrong to have relied on his ”policy” and strong feeling” as the basis for refusing the application of counsel for adjournment and to foreclose him from filing the final written address in the case on behalf of the Appellant.
After referring to the provision of Order 4 Rule 4 of the Akwa Ibom State High Court (Civil Procedure) Rules 2000 on the power of the Court to grant adjournment from time to time, Appellant’s counsel submitted further that the right of a party to address a trial Court after the conclusion of evidence is constitutionally guaranteed in Section 294 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). Appellant’s counsel referred to the case of ANYAEBOSI VS. R. T. BRISCOE (1987) 2 N. S. C. C. Vol. 18. 805 that by virtue of the constitutional provision, a trial Court is obliged to give opportunity to all parties in a cause, opportunity to file their final addresses before delivering judgment. On this premise, learned counsel for the Appellant urged us to also find and hold that the refusal of the learned trial judge to indulge counsel to file the final written address has occasioned a miscarriage of justice against the Appellant which had impacted on his constitutional right to fair trial and fair hearing.
On the importance of final written addresses by parties in a case, and its connection to the principles of fair hearing, Appellant’s counsel referred to the cases of OBODO VS. OLOMU (1987) 2 N.S.C.C. 824 at 838; SANUSI VS. GIDIYA (2006) LPELR – 9808 (CA); UNION BANK OF NIGERIA PLC VS. NWANAJUO (2012) LPELR – 7914 (CA); AKABOGU VS. AKABOGU (2003) NWLR (pt. 826) 445; MIL. GOV OF LAGOS STATE VS. ADEYIGA (2012) ALL FWLR (pt. 616) 396 at 414 – 415.
He concluded on issue 1 and urged us to hold that the learned trial judge did not exercise his discretion judiciously and judicially when he refused the application for adjournment to enable counsel present his final written address at the close of trial and that same has occasioned miscarriage of justice.
In reaction to Appellant’s issue 1, learned counsel for the Respondent submitted that the trial Court in refusing the application for adjournment in the instant case did same in the overall interest of justice.
He noted that the application for adjournment was made by the Appellant and the Respondent herein. That the trial Court conscious of the outcry against inordinate delay in the administration of criminal justice stated at page 206 of the Records as follows:
“The filing or non filing of counsel written address cannot and should not delay the process of this case. I often hear people say justice delayed is justice denied. I do not want this case to be delayed for any reason so that justice will not be denied to all the parties.”
Learned counsel for the Respondent referred to page 204 of the Records and further noted that all the parties were given the opportunity to address the Court by filing their written addresses as ordered in the Court proceedings of 1st August, 2019.
He submitted that from 1st August, 2019 to 22nd October, 2019 is over 82 days, but that none of the parties obeyed the order of Court to file written addresses within the period ordered by the Court. He argued that the trial Court stated its reasons in exercising its discretion to refusing adjournment to file written address in the following manner:
“- – – The written address of counsel in matters of this nature and indeed all matters be it criminal or civil do not, and cannot form part of evidence or take the place of evidence. It is the law and in equity that cases are decided based on evidence before the Court. The filing or non-filing of counsel’s written address cannot and should not delay the progress of this case. I often hear people say justice delayed is justice denied. I do not want this case to be delayed for any reason so that justice will not be denied to all parties.”
Learned counsel for the Respondent submitted that it is very clear that the reason for the refusal of the application for adjournment in the instant case was to avoid denial of justice “to all the parties”. He referred to the cases of UTANG VS. STATE (2015) LPELR – 25869 (CA); FRANCIS ADESINA AYANWALE VS. OLUMIDE ODUSAMI (2011) LPELR 8143 (SC) to make the point in agreement with the learned trial judge that an address is not a sine qua non for the Court in arriving at its decision.
Learned counsel for the Respondent submitted that the trial of the Appellant was fair and the order of the trial Court declining the application for adjournment after the initial 82 days for the purpose of filing addresses did not occasion any miscarriage of justice.
He submitted that the reference to the provision of Section 294 (1) by the Appellant’s counsel was inappropriate in the circumstance – That Section 294 (1) of the 1999 Constitution (as amended) is inapplicable in the present case as neither of the parties addressed the Court.
He submitted that the provision of Section 294 (1) of the 1999 Constitution (as amended) would only be applicable where the trial Court relied on the address of one of the parties while discountenancing the address of the other party. He referred to the case of STATE VS. ABDULLAHI & ANOR. (2016) LPELR – 40267 (CA).
The most important consideration, said counsel, is whether an opportunity to address the Court was indeed afforded the parties at trial. If same was given and parties failed to take advantage of the opportunity provided for this purpose, there can be no lack of fair hearing. After relying on the cases of NEWSWATCH COMMUNICATIONS LTD. VS. ATTA (2006) 4, SC (pt. 11) 114 (2006) 12 NWLR (pt. 993) 144; NWANKUDU VS. IBETO (2010) LPELR – 4391 (CA) on the above point, Respondent’s counsel distinguished the case of OBODO VS. OLOMU (1987) 2 NSCC 824 at 838 heavily relied on by Appellant’s counsel from the facts and circumstances of the instant case.
Learned counsel for the Respondent noted that in the case of OBODO VS. OLOMU (supra) unlike the instant case, the Supreme Court agreed that the issues were beyond mere irregularities as there was lack of fairness and denial of fair hearing. This was so because:
– The Defendant/Respondent had filed his address but same was not served on the Plaintiff/Appellant.
– The learned trial judge relied heavily on the said address to enter judgment for the Defendant/Respondent.
– The Plaintiff/Appellant was not afforded the opportunity to see and know the content of the address filed by the Defendant/Respondent.
He urged us to resolve the issue against the Appellant.
Learned counsel for the Appellant presented issue 1 as if it were a mere refusal of a prayer for adjournment by the Appellant when in fact it was a prayer for extension of time and adjournment by both parties to file written addresses. The learned trial judge had previously granted adequate time to the parties to file written addresses but the parties failed to utilize the opportunity afforded them to file their written addresses.
It seems to me that the refusal of adjournment by the learned trial judge indeed for both parties must be seen in that prism and from that perspective.
In the circumstance, the contention by the learned counsel for the Appellant that the learned trial judge’s discretion to refuse adjournment was improperly exercised and/or that the Appellant was not given fair hearing ought not to be seriously countenanced.
First, the learned trial judge openly expressed the legal truism that justice delayed is justice denied and proceeded to rely solely on the evidence on record without an address from either of the parties to deliver its judgment. The procedure so adopted is neither in breach of the constitutional provision in Section 294 (1) of the 1999 Constitution (as amended) nor in breach of the principles of fair hearing as alleged by the Appellant. The learned trial judge unlike the case of OBODO VS. OLOMU (supra) relied upon by Appellant’s counsel did not rely and utilize only the address of one of the parties in writing his judgment. A trial will obviously be vitiated where one of the parties is afforded the opportunity to present his address and the other is denied such opportunity as that will amount to an infraction of the audi alterem partem rule of natural justice. See BAYO VS. NJIDDA (2004) 8 NWLR (pt. 876) 544 at 606; OFFOR VS. THE STATE (1999) 2 NWLR (pt. 632) 608; STATE VS. ABDULLAHI & ANOR. (2016) LPELR – 40167 (CA).
In the instant case, the learned trial judge exercised his discretion judiciously and judicially when he refused the application of both the prosecution and the defence for an adjournment to enable them present their final written addresses.
Issue 1 is resolved against the Appellant.
On issue 2, learned counsel for the Appellant submitted that the learned trial judge was wrong and occasioned miscarriage of justice when he discharged and acquitted three persons who were charged together with the Appellant in the same information and for the same offences but convicted the Appellant based on the same set of evidence.
He submitted that it is now settled law as re-stated in a plethora of decisions that, where two or more persons are charged with the same offence and the evidence led by the prosecution against all of them is interwoven, if one of them is discharged and acquitted, then the other or others must also be discharged and acquitted.
On this, learned counsel for the Appellant referred to the decision of the Supreme Court in the case of EBRI VS. STATE (2004) 11 NWLR (pt. 885) 589 at 604 – 606.
He referred to the particulars of offence in the Information and noted that five (5) witnesses testified for the prosecution in relation to the charges against the Appellant and other accused persons.
He submitted that the evidence against all the accused persons was the same or similar to the extent that, the evidence was inextricably interwoven around all the accused persons as no witness testified separately against anyone of the accused persons.
Learned counsel for the Appellant reiterated that a careful perusal of the evidence of the five prosecution witnesses would reveal that none of them gave any piece of evidence that exonerated those who were discharged and acquitted by the learned trial judge.
That there was no extra evidence suggesting a role played by the Appellant which made him more culpable than those exonerated as a result of which the Appellant was found guilty and others discharged and acquitted.
Appellant’s counsel further referred to the cases of KALU VS. STATE (1988) 4 NWLR (pt. 90) 503 at 514; UMANI VS. STATE (1988) 1 NWLR (pt. 70) 274; ADELE VS. STATE (1995) 2 NWLR (pt. 377) 269 at 293.
He concluded that the learned trial judge was wrong to have discharged and acquitted other accused persons but convicted the Appellant charged with the same offence and on the same set of evidence.
In response to issue 2, learned counsel for the Respondent submitted that at pages 122 – 124, of the Record of Appeal, PW1 a co-victim of the Appellant and others was led in evidence, he mentioned the Appellant and others as the persons that attacked them on 15th March, 2016.
Respondent’s counsel submitted further that the Appellant who testified as DW3 set up a defence of alibi for the first time in Court. He submitted that the oral evidence of the Appellant in Court was nothing but an afterthought.
Learned counsel for the Respondent submitted that the acquittal of the 3rd, 5th and 8th accused persons who were tried along with the Appellant by the trial Court does not automatically translate to the acquittal of the Appellant. He argued that it is trite that the Court is duty bound to consider the evidence against each accused person against their respective defence(s).
In other words, said counsel, in order to determine whether the acquittal of one accused person will automatically translate to the acquittal of others, the Court will consider whether accused persons at trial had a common base defence to the charge against them. That where the defence was not the same, then the Court, as in the instant appeal, can safely convict depending on the evidence vis-à-vis the defence while discharging the others.
On this, learned counsel for the Respondent referred to the case of ILODIGIWE VS. STATE (2012) LPELR – 9342 (SC). He submitted that the defence of the 3rd, 5th and 8th accused persons who were discharged at trial was radically different from that of the Appellant. Counsel submitted that like it was in the ILODIGIWE’s case (supra), the discharge of the 3rd, 5th and 8th accused persons was premised on a successful plea of Alibi. The defence of Alibi is personal and must be specifically established. The benefit arising therefrom cannot be extended to any other person.
Learned counsel for the Respondent made specific references to the dicta of Chukwuma – Eneh JSC at pages 42 – 44 in the ILODIGIWE’s case (supra). He reiterated that there was a spontaneous and natural identification of the Appellant at the scene of crime as one of the assailants by PW1 and PW2. He submitted that where a visual identification, as in the instant case has not been contradicted by credible evidence, the Court is entitled to accept same and act on it. Also, that the authority of EBRI VS. STATE (supra) is good law where the accused has a common base defence.
Respondent’s counsel noted that in Ebri’s case (supra), the Appellant, like the other accused persons discharged by the trial Court, had raised a similar defence of alibi both in his extra-judicial statement and his oral evidence in Court even though the other accused persons defence of alibi was accepted and were accordingly discharged, the Court went on to rely on the same set of evidence to convict the Appellant.
Learned counsel for the Respondent also conceded the authority of UMANI VS. STATE (1988) 1 NWLR (pt. 70) 274 (SC) as good law but distinguished the facts and circumstance of the instant case from the case of UMANI VS. STATE (supra).
He submitted that as shown from the reasoning of the Supreme Court, the issue in UMANI’s case (supra) was not just that a set of accused persons were discharged while others were convicted. That, learned trial judge in the UMANI’s case (supra) fell into the temptation of believing the story (alibi) of the accused persons against the positive identification by PW2 rather than giving the benefit of doubt arising from the non-investigation of the alibi to the accused person. By believing the 1st, 2nd, 5th, 6th and 7th accused persons, the trial Court created room for the inevitable namely, that the evidence of PW2 was not believable.
In the instant case, said counsel, the trial Court did not believe, as done in Umani’s case but rather gave the benefit of doubt to the accused persons by discharging them.
Learned counsel for the Respondent further distinguished the cases of KALU VS. STATE (1988) 4 NWLR (pt. 90) 503 and ADELE VS. STATE (1995) 2 NWLR (pt. 377) 269 at 293 equally relied on by the Appellant’s counsel by explaining the basis of those decisions.
He said, it was the unequal treatment of the Appellant vis-à-vis the discharged accused persons based on the same evidence from PW6 therein, that promoted the Supreme Court in the KALU’s case (supra) to apply the rule laid down in EBRI VS. STATE (supra) to KALU’s case.
In relation to the case of ADELE VS. STATE (supra), learned counsel for the Respondent adopted the quotation also supplied in the Appellant’s brief of Argument of Muhammed JSC in Adele’s case to the effect that:
“… It is now settled law that when a trial judge has discredited and rejected the evidence of a witness and regarded it as lacking in probative value and on the basis of that refused to use it as a basis of convicting an accused person, he should decline to use it as basis for convicting another accused person”.
Learned counsel for the Respondent explained that for the above principle to apply, it must be clear from the record that the trial Court positively and outrightly “discredited and rejected the evidence of a witness and regarded it as lacking in probative value”. This, he said was not the case in the instant appeal. The trial Court, said counsel, never discredited any of the prosecution witnesses neither did he reject any line of the prosecution witnesses evidence. He merely gave the benefit of doubt to some of the accused persons whose alibi made out to the police were not investigated. He added that this is in line with what the Supreme Court recommended in Umani’s case (supra).
In deciding Appellant’s issue 2, it is appropriate to make a brief recapitulation of the facts of the case on record. Initially, the Appellant was charged along with 10 others for the same offences of conspiracy and murder. This was before the application by the prosecution to strike out the names of three of the accused persons who are either dead or missing because of jail break, after which the order of numbering of the accused persons was changed in the course of trial. It is true as noted by the learned counsel for the Appellant that the charges against the accused persons including the Appellant are the same. It is also true that the evidence of the five (5) witnesses who testified for the prosecution especially the identification evidence of PW1 and PW2 were against the accused persons including the Appellant.
However, each of the accused persons set up their defences, separately as individuals and the trial Court so considered their separate and individual defences on the merit of each of such defences. It was the result of this exercise that led the trial Court to uphold the defence of alibi raised by the 3rd, 5th and 8th accused persons and their subsequent discharge. The Appellant on the other hand raised his defence of alibi for the first time in Court by which reason amongst others the defence could not avail him.
Alibi is a defence which seeks to persuade the Court that the accused could not possibly be at the scene of the crime as he was somewhere else, where, most probably, there were people who could testify that at the time of the alleged incident or act, he was not at the scene of the crime.
In raising the defence of alibi, the accused must at the earliest opportunity furnish the police with full details of the alibi, to enable the police to check the details. Failure of the accused to furnish the particulars of the alibi, weakens the defence. See SOWEMIMO VS. STATE (2004) 11 NWLR (Pt. 885) 515 SC.
In the instant case, I do agree with the learned counsel for the Respondent that the rule laid down by the Supreme Court in EBRI VS. STATE (supra) could not in the circumstance apply to the case of the Appellant. This is because even though the charges against the Appellant and the other accused persons are the same and the evidence against them are interwoven, the defences raised by the accused persons were personal and separate. The situation in this case is analogous to the situation the Supreme Court was confronted with in the case of ILODIGIWE VS. STATE (2012) LPELR – 9342 (SC). In the ILODIGIWE’S case (supra) Peter – Odili JSC had this to say at pages 70 – 71,
“… It is trite law that in the Court of trial as in the instant, the evidence of each of the accused person must be specifically considered and the fact of the discharge and acquittal of the 7th accused would not translate automatically to the exculpation from blame of the accused, the Appellant herein inclusive. This is because as much as it is the law that where persons who are charged together for committing a crime have a common base for their defence, the acceptance of the defence to the benefit of one of them should result in its acceptance for the benefit of the others. That is not the case in the case at hand since the accused persons including the Appellant and the 7th accused at the Court of trial did not have a common based defence. Therefore nothing changed in the fortune of the Appellant from the discharge of the 7th accused…”
Chukwuma – Eneh JSC (of blessed memory) who read the lead judgment in the ILODIGIWE’s case (supra) earlier explained the position of the law at pages 42-44, first that:
“…I think on the backdrop of the foregoing abstract that the Appellant has completely lost sight and indeed has misconstrued the settled principle in such decision as R. VS. UKATA (1958) FSC 27 and ODIGILI & ORS. VS. STATE (1958) 7 SC 141 at 155 to the effect that evidence against each of the accused persons as here must be specifically considered against each of them, that is to say against their respective defences and that an accused person cannot be connected with an offence unless and until the evidence available against him so clearly establishes beyond reasonable doubt that the act must have been done either by him or with someone he is criminally responsible. The implication arising from the foregoing context is that the benefit of doubt given to the 7th accused cannot without more be extended to the rest of the Appellant and his co-accused persons. Even though they are charged together under a common purpose principle, the defence of the Appellant and the 7th accused has no common base. The defense of the 7th accused is premised on a successful plea of alibi which is not the basis of the defense of the Appellant and the other accused persons. Their respective defences have been considered separately and severally on the backdrop of the Respondent’s case by the trial Court as affirmed by the lower Court to arrive at the conviction of each of them…”
Second, that:
“… Before concluding this question I now consider whether the discharge and acquittal of the 7th accused has fatally dented the findings of both lower Courts fixing the Appellant (excluding the 7th accused) as well as the other six accused persons at the scene of crime. My first reaction is definitely in the negative as it is trite law that where the identification is spontaneous and natural as here, the Court would be wrong not to act on it. See COHI VS. STATE (1997) 7 NWLR (pt.) 51, ANYANWU VS. THE STATE (1986) 5 NWLR (Pt. 45) 612 at 633-634. The principle of law in this regard has been set in the case of AKPAN & ORS. VS. STATE (2002) 51 WRN, 1 where Katsina-Alu in dealing with a similar question said “where two or more accused persons are charged with the same offence and the same evidence is rendered in proof of the charge, it does not automatically follow that the acquittal of one of them lead to the acquittal of the others. If there was a mistake in acquitting one of them, the appellate Court is not expected to partake in the error as two wrongs do not make a right…”
In the instant case, the learned trial judge was not wrong when he discharged and acquitted other persons but convicted the Appellant charged with the same offence as the Appellant and other accused persons did not have a common based defence.
Issue 2 is resolved against the Appellant.
On issue 3, learned counsel for the Appellant submitted that the learned trial judge was wrong when he held at page 224 of Records that:
“I hold the strong view that DW3 Ukeme Edet Udokang was one of the boys organized by Eteidung Offiong Ekpeyoung to go and attack the deceased and kill him – – -“
He submitted that the above finding is not borne out of the evidence of the Appellant.
Learned counsel for the Appellant reviewed the extra judicial Statement of the Appellant and his evidence in Court. He submitted that notwithstanding the unchallenged evidence of the Appellant that he was not involved in the torture of the deceased, the learned trial judge held that the Appellant was one of the boys organized to go and attack the deceased and kill him.
He submitted further that there is nothing in the evidence of the prosecution witnesses stating and/or suggesting that the Appellant was present at the scene of crime and/or was one of those who attacked the deceased. He submitted that the finding of the learned trial judge is perverse as it is not supported by any piece of evidence placed before the trial Court.
Learned counsel for the Appellant further submitted that assuming but not conceding that the Appellant was present at the scene of crime, mere presence at the scene of crime does not imply that such a person participated in the crime. On this, learned counsel for the Appellant referred to the cases of POSU & ANOR. VS. STATE (2011) LPELR – 1969 (SC) page 16; ORJI VS. STATE (2008) LPELR – 2767 (SC) at 25; ONYA VS. STATE (2019) LPELR – 48500 (CA) pages 13 – 14.
He concluded that the learned trial judge was wrong to have held that the Appellant was one of the boys organized to go and attack the deceased and kill him.
To start with, Appellant’s extra-judicial statement was admitted in evidence as Exhibit 11. Therein, the Appellant stated inter alia,
“- – – This vigilante group was formed by the village head Eteidung Udo Offiong Ekpeyoung. It is true that my village Ikpe Ikot Ikon has two factions. One faction belongs to the family head and I am a member while the other faction was headed by Uwem Cosmas Udo alias Etoakpa now late – – -“
Second, before the renumbering of the accused persons at page 221 of the Record of Appeal on 6th February, 2018, the Appellant herein was initially 7th accused but became 4th accused on 6th February, 2018, consequent on the renumbering of the accused persons.
At page 122 of the Record of Appeal, with reference to the 11 accused persons previously charged on record, PW1 stated:
“I know one Uwem Cosmas Udo. He is now deceased. The accused persons killed him. I know the accused persons by names. Their names are:
1. Ndifreke Akpan Udo
2. Nsikak Edet Edem
3. Inemesit Friday Peter
4. Iboro Eyo Ekpe
5. Moses Akpan Udo
6. Joseph Akpan Udo
7. Ukeme Edet Udo Akang
8. Efiok Edward Monday
9. Daniel Peter Daniel
10. Akaninyene Nnana Ikot
11. Edikan Sabbath Okon.”
Furthermore, at page 123 of records still at examination–in–Chief, PW1 said inter alia – now specifically to the then 7th accused, UKEME EDET UDOAKANG, the Appellant,
“ – – – After a long while, the 7th accused person brought a motor tyre, brought out a dagger, heat up the dagger in the fire and used the heated dagger to pierce the deceased in his abdomen. The deceased shouted calling for help. The 7th accused person also pierced the deceased with the hot metal on his thigh. Blood oozed out from these wounds – – -“
PW2 also gave evidence of visual identification of the accused persons in the dock including her husband, the deceased as those who killed her husband.
The learned trial judge was entitled from the evidence of PW1 and PW2 and Exhibit 11, the extra judicial statement of the Appellant, that he was one of those sent to kill the deceased.
Issue 3 is resolved against the Appellant.
On issue 4, learned counsel for the Appellant submitted that whereas the Appellant and his co-accused were charged and tried for the murder of one Uwem Cosmas Udo, the specific finding of the learned trial judge is that:
“It was the acts of torturing the deceased by Inemesit Friday Peter, – – – That resulted in the death of Uwem Akpan Udo.”
[See page 229 lines 7 to 9 of the record of appeal].
He submitted that the learned trial judge was wrong when he held that the prosecution proved the three main ingredients of the offence of murder against the Appellant. This, said counsel, is because although there is evidence that somebody died, there is nothing in the printed record of the trial Court to support the finding of the learned trial judge that the Appellant was in any way involved in the death of Uwem Akpan Udo. Also, there is nothing in the printed record suggesting that Uwem Akpan Udo is one and the same person as Uwem Cosmas Udo who the Appellant was alleged to have murdered. Against the backdrop of the foregoing Appellant’s counsel urged us to hold that the finding of the learned trial judge is perverse as his finding is not supported by any piece of evidence before the trial Court.
In response to Appellant’s issue 4 and on the identity of the deceased, which he said is a question of fact to be established by evidence, learned counsel for the Respondent reviewed the evidence of the prosecution witnesses with reference to the Information by which the Appellant was charged and indeed the evidence of the Appellant at page 183 of Records and came to the conclusion that neither the prosecution nor the defence was mistaken as to the identity of the deceased as Uwem Cosmas Udo.
Learned counsel for the Respondent submitted that, in the course of reviewing evidence by the learned trial judge in his judgment at pages 207-220 of the record of appeal, the name of the deceased Uwem Cosmas Udo is mentioned seventeen (17) times without mincing words. At pages 223 – 234 of the record, paragraph 6, the learned trial judge found as follows:
“… In the instant case, there is overwhelming evidence that Uwem Cosmas Udo had died… the evidence of PW1, PW2, PW3, PW4 and PW5 clearly point unequivocally to the fact that Uwem Cosmos Udo died on 20th March, 2016. Exhibits 5 and 5A are photographs showing the battered body of Uwem Cosmas Udo… Exhibit 5B shows the body of the deceased Uwem Cosmas Udo on the hospital bed stone dead… all these exhibits speaks volumes about the dead body of Uwem Cosmas Udo and indicating that the deceased died”.
That, in the course of judgment, the learned trial Court made mention of the name Uwem Cosmas Udo as the deceased twenty-five (25) times. At page 229 of the record, the concluding part of the judgment, the Court mistakenly referred to the deceased as UWEM AKPAN UDO instead of Uwem Cosmas Udo.
He submitted that in order to determine whether this was a case of an accidental slip and to be sure of the intention of the judge, or a case of uncertainty as to the identity of the deceased, the judgment of the trial Court will have to be read in whole particularly the findings of fact at pages 223 -224 of the record of appeal.
He further submitted that the reference to the deceased as UWEM AKPAN UDO instead of Uwem Cosmas Udo by the trial judge in the judgment at page 229 of the record was an accidental slip which has not occasioned any miscarriage of justice. That an appellate Court has the inherent power in deserving situation or circumstances such as this to correct an accidental slip. He referred to the cases of ALAO VS. ACB LTD. (2000) LPELR – 408 (SC) page 60.
Learned counsel for the Respondent submitted that from the beginning of the judgment of the trial Court from pages 207 – 230 of the record of appeal, there was a flow of coherence and consistency on who the deceased was, that is Uwem Cosmas Udo until at page 229 of the record where the learned trial judge accidentally or mistakenly referred to the deceased as Uwem Akpan Udo.
Learned counsel for the Respondent urged us to tow the path of substantial justice and amend the findings of fact at page 229 paragraph 2 lines 7 -9 of the record of appeal as regards the name of the deceased to read Uwem Cosmas Udo. This, he said will accord with the earlier findings of the trial Court at pages 223 -224 of the record of appeal to the effect that the deceased Uwem Cosmas Udo is dead.
In the instant case, there was no iota of contradiction in the evidence led in the trial Court that the deceased was Uwem Cosmas Udo.
The learned trial judge only for once at page 229 of the record accidentally or mistakenly referred to the deceased as Uwem Akpan Udo. This type of mistake or accident is covered under the concept of “slip rule” and could not be elevated into a substantial error by which the learned counsel for the Appellant would now say that for the said reason, the prosecution has not proved the ingredients of the offence charged and/or that the identity of the deceased person was not proved.
The concept of a “slip rule” presupposes that it is occasioned by accident or mistake and therefore not deliberate. Thus, in spite of the accidental slip of mentioning Uwem Akpan Udo instead of Uwem Cosmas Udo as the deceased only once in the judgment of the trial Court, which mistake was not found in the entire gamut of evidence at trial, the learned trial judge was not wrong when he held that the prosecution proved the three main ingredients of the offence of murder against the Appellant.
Issue 4 is resolved against the Appellant.
The Appellant in this appeal nominated four (4) issues for the determination of the appeal. All four (4) issues were resolved against the Appellant.
This appeal lacks merit and it is accordingly dismissed.
The judgment and sentence of Ekerere Ebienyie J. in suit No. HKN/20c/ 2016 which convicted the Appellant – Ukeme Edet Udokang as charged for the offences of conspiracy and murder are accordingly affirmed.
JAMES SHEHU ABIRIYI, J.C.A.: I read in advance in draft the judgment just delivered by my learned brother, Mojeed Adekunle Owoade, JCA and I agree that the appeal has no merit.
The parties were given the opportunity to address the Court and they failed to do so. Appellant cannot therefore be heard to complain.
Appellant and other accused persons put up different defences. While those that were discharged and acquitted raised the defence or alibi at the earliest opportunity, the Appellant did not. He raised the defence of the trial. Therefore, the defence of alibi was not available to him.
Apart from this, the evidence of PW1 and PW2 fixed the Appellant at the scene of crime.
In the course of trial and in the judgment of the Court the name of the Umen Cosmas Udo appeared numerous times. When the Court referred to the deceased as Uwem Akpan Udo, this was an accidental slip. It did not lead to any miscarriage of justice.
For the detailed reasons in the lead judgment, I too dismiss the appeal and affirm the conviction and sentence of the Appellant by the Court below.
MOHAMMED LAWAL SHUAIBU, J.C.A.: I read in draft the judgment just delivered by my learned brother Mojeed A. Owoade, JCA, and I agree with him that this appeal must be dismissed.
The general rule as enunciated in plethora of judicial decisions is that where two or more persons are charged with the same offence and the evidence led by the prosecution against all of them is interwoven, if one of them is discharged and acquitted, then the other or others must also be discharged and acquitted. Similarly, when a trial judge has discredited and rejected the evidence of a witness as lacking in probative value and on the basis of that refused to use it as a basis of convicting an accused person, he should decline to use it as basis for convicting another accused person. Where however, each of the accused persons set up their defences separately as individuals and the trial Court considered such separate defences and found that they do not have a common based defence, a discharge of one does not automatically translate to a discharge of another accused person. See ILODIGIWE V STATE (2012) LPELR – 9342 (SC).
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In view of the fact that the appellant herein have no common based defence with the 3rd, 5th and 8th accused person who were discharged and acquitted, the trial judge was therefore right when he discharged and acquitted other accused persons but convicted the appellant.
It is for this and other reasons in the lead judgment that I also dismiss this appeal and affirm the judgment of the lower Court.
Appearances:
Julius O. Idiege, Esq. For Appellant(s)
Godwin Udom, Esq. For Respondent(s)
