USMAN GARBA v. THE STATE (2019)

USMAN GARBA v. THE STATE

(2019)LCN/13367(CA)

In The Court of Appeal of Nigeria

On Monday, the 27th day of May, 2019

CA/J/279CC/2017

RATIO

JUDGMENT: NO PARTICULAR METHOD PROVIDED FOR JUDGES TO WRITE THEIR JUDGMENTS

On the state of the ruling delivered which did not adduce reasons for the conclusion arrived thereat; it is trite that there is no hard and fast rule or set standard in the style of a Courts decision. Every Judge has the freedom to use the peculiar method suitable for his purpose or which enables him perform his duty of judgment writing without undue stress.PER UCHECHUKWU ONYEMENAM, J.C.A.

JUDGEMENT: COMPONENTS OF A VALID JUDGMENT

In doing that however, a Judge must remind himself that the component of proper decision ought to be present and must equally show that the judgment is fair, impassionate consideration of how the verdict came to be from his evaluation of the evidence put forth by the parties. See: MBANEFO V. MOLOKWU & ORS. (2014) LPELR 22257 (SC); TRADE BANK PLC V. CHAMI (2003) 13 NWLR (PT. 836) 158; DURU V. NWOSU (1989) 4 NWLR (PT. 13) 24; CIROMA V. ALI (1999) 2 NWLR (PT. 590) 317; N.B.C. PLC V. BORGUNDU (1999) 2 NWLR (PT. 591) 408; SANUSI V. AMEYOGUN (1992) 4 NWLR (PT. 237) 527.PER UCHECHUKWU ONYEMENAM, J.C.A.

JUDGMENT: THE ATTITUDE OF THE COURT TOWARDS DELIVERY OF JUDGMENT OUT OF TIME

The Courts have therefore placed more emphasis on the effect the failure to deliver judgment within the constitutional time frame has on the decision than the length of time it took the Court to deliver its decisionoutside the constitutional stipulated time. See: SAVANNAH BANK OF NIGERIA LTD. V. STARITE INDUSTRIES OVERSEAS CORPORATION (2009) 8 NWLR (PT. 1144) 491, INTERNATIONAL BEER AND BEVERAGES INDUSTRIES LTD V. MUTUNCI COMPANY (NIG) LTD (2012) 6 NWLR (PT. 1297) 487, KOLAWOLE INDUSTRIAL COMPANY LTD V. ATTORNEY GENERAL, FEDERATION (2012) 14 NWLR (PT. 1320) 221; PEOPLES DEMOCRATIC PARTY V. OKOROCHA (2012) 15 NWLR (PT. 1323) 205; NNPC V. ZARIA & ANOR (2014) LPELR 22362 (CA).PER UCHECHUKWU ONYEMENAM, J.C.A.

JUDGMENT: THE PURPOSE FOR WHICH A JUDGMENT IS TO BE DELIVERED WITHIN A GIVEN PERIOD OF TIME
Notably, the insertion of a provision in the Constitution stipulating a time frame for delivery of judgment in a case after final address is in recognition of the fact that human memory is circumscribed by time and space and loses its impressions or knowledge of persons, things, with the passage of time and such loss increases with time and pre-occupations. See: IFEZUE V. MBADUGHA (1984) 5 SC 79. Therefore, where the delay in the delivery of judgment is unconscionable, undue, immoderate in that it exceeds reasonable limit, then, it will be beyond peradventure that it will, without more, affect the memory of the trial Judge and his impressions of the facts and evidence led in the matter such that whichever way the decision goes, it cannot be, and would not be seen to be justice according to law.PER UCHECHUKWU ONYEMENAM, J.C.A.

JUDGMENT: THE EFFECT OF DELIVERING A JUDGMENT OUTSIDE THE STIPULATED TIME
In a more recent decision of the Supreme Court, the apex Court emphasized Section 294 (5), stating that notwithstanding its decision in IFEZUE V. MBADUGHA (supra); delay alone will not lead to setting aside the judgment unless there is evidence of miscarriage of justice. See:AKOMA & ANOR V. OSENWOKWU & ORS (2014) LPELR ? 22885 (SC); DALYOP V. MADALLA (2017) LPELR – 43349 (CA). In legion of authorities, the decisions have echoed that in deciding whether a party has suffered a miscarriage of justice as a result of inordinate delay between the conclusion of evidence and the delivery of judgment, the emphasis is not simply on the length of time but on the effect it produced on the mind of the Court. Still in the said circumstance, it remains the duty of the Appellant to show how the delay has affected the perception, appreciation and evaluation of the evidence by the judge or justices as the case may be or how the delay eroded the confidence in the entire judicial process which produced the judgment. PER UCHECHUKWU ONYEMENAM, J.C.A.

ARMED ROBBERY: THE INGREDIENTS TO PROVE THAT WILL ESTABLISH THE OFFENCE OF ARMED ROBBERY
The question to be answered herein is whether the evidence adduced by the Prosecution at the trial Court can 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: STATE V. SANI (2018) LPELR – 43598 (SC); AYINDE V. THE STATE (2018) LPELR 44761 (SC); EBBA V. OGODO (1984) 1 SCNLR 372; SUBERU V. THE STATE (2010) 8 NWLR (PT. 1197) 586.PER UCHECHUKWU ONYEMENAM, J.C.A.

EVIDENCE: WHAT IS AN IDENTIFICATION EVIDENCE

Identification evidence relates to the evidence which tends to show that the person charged for an offence is the same as the person who was seen committing the said offence. To guard against cases of mistaken identity, before a Court can ascribe any value to the evidence of an eye-witness in identification of a criminal, the Court must carefully consider the following issues: –
(1) circumstances in which the eye-witness saw the suspect or defendant.
(2) the length of time the witness saw the subject or defendant
(3) The lighting conditions
(4) The opportunity of close observation.

(5) The previous contacts between the two parties.
See: NDIDI V. STATE (2007) LPELR 1970 (SC).PER UCHECHUKWU ONYEMENAM, J.C.A.

JUSTICES

UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

BOLOUKUROMO MOSES UGO Justice of The Court of Appeal of Nigeria

Between

USMAN GARBA Appellant(s)

AND

THE STATE Respondent(s)

UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the High Court of Yobe State, presided over by Ali Garba, J. sitting at Potiskum/Damaturu in which he convicted and sentenced the Accused Person Usman Garba (now Appellant) to death by hanging until certified dead for the offence of armed robbery contrary to and punishable under Section 1 (2)(a) of the Robbery and Firearms (special provisions) Act Cap 398 Laws of the Federation of Nigeria 1990.
Dissatisfied with the said judgment, the Appellant herein with the other Accused Persons at the trial Court filed a joint Notice and Grounds of Appeal on 10th April, 2017. The referred joint Notice and Grounds of Appeal being irregular, by the order of this Court made on 27th June, 2018, the Appellant?s Amended Notice of Appeal dated 10th April, 2018 but filed 20th April, 2018 was deemed properly filed and served.

The Appellant and his co-convict at the trial Court in Case No. YBS/DT/HC/28c/2008 on 26th July, 2008, pleaded not guilty to the charge and the case went to trial. The Prosecution called four witnesses who testified. There

was trial within trial to establish the voluntariness of the extra judicial statement of the Appellant. At the end of the trial within trial, the learned trial Judge found that the extra judicial statements of the Appellant and the co convicts were made voluntarily. The extra judicial statement of the Appellant at the trial Court was admitted in evidence as Exhibit “B?, while Exhibit “D” is the statement of PW4 (the victim). The Prosecution thereafter closed its case and the Appellant was called upon to enter his Defence.

The trial Court adjourned the case for Defence to 14th July, 2014 but no record is available as to why Defence could not commence till 7th March, 2016. The Appellant testified without calling any witness. The case was adjourned for addresses and counsel addressed the Court orally on 20th April, 2016. The trial Court adjourned its judgment to 31st May, 2016 but eventually Judgment was not delivered till 14th February, 2017 wherein the Appellant was found guilty and accordingly convicted and sentenced to death by hanging until certified dead.

On 7th March, 2019 this appeal was heard. A. U. THEOPHILUS Esq., appeared for the

Appellant while U. ISMAILA Esq., Chief State Counsel Ministry of Justice Yobe State appeared for the Respondent. Mr. Theophilus referred to the Appellant?s Amended Notice of Appeal filed 20th April, 2018 but deemed properly filed and served 27th June, 2018. By order of Court made 27th June, 2018 leave was granted the Appellant to rely on record transmitted in Appeal No. CA/J/279A/C/17. The learned counsel adopted the Appellant?s brief filed 27th July, 2018 in urging the Court to allow the appeal. Mr. Ismaila adopted Respondent?s brief filed 16th November, 2018 in urging the Court to dismiss the appeal.
?
In the Appellant?s brief, Mr. Ndam distilled 4 issues for the determination of the appeal. The issues are:
ISSUE 1: Whether the Prosecution proved beyond reasonable doubt that the statement of the Appellant tendered and marked as EXH. “B? was voluntarily made?
ISSUE 2: Whether the Prosecution proved the offence of armed robbery against the Appellant beyond reasonable doubt to warrant his conviction and sentence to dead by hanging?
ISSUE 3: Whether the learned trial judge was in a position to properly recollect his

impression of those who testified before him and the evidence adduced during the trial in view of the lapse of precisely eight months and fourteen days from the adoption of the oral address to the delivery of judgment. Specifically whether oral address can substitute the position of written address in Superior Courts of Record in Nigeria?
ISSUE 4. Whether the non-interpretation/translation of the proceedings of the lower Court of 21/1/09, 24/2/09, 18/3/09, 6/4/09, 14/4/09, 29/9/10, 30/11/10, 12/1/11, 3/2/11, 30/3/11, 14/4/11, 1/12/11, 12/12/11, 19/12/11, 2/2/12, 16/2/12, 8/3/12, 17/4/12, 15/5/12, 12/6/12, 3/6/13, 6/7/13, 8/7/13, 13/7/13, 23/9/13, 4/11/13, 27/1/14, 17/3/14, 5/5/14, 26/5/14, 23/6/14, 7/3/16, 30/3/16, 20/4/16 and 14/2/17 affected the Appellant’s right to an interpreter as provided for under Section 36(6)(e) of the 1999 Constitution of the Federal Republic of Nigeria.

Mr. Saleh Dibbo Gadaka, of the Attorney General?s Chambers, Yobe State who prepared the Respondent?s brief adopted the issues for determination as formulated by the Appellant.

?That being the case, I adopt the issues raised by the parties for the

determination of this appeal. However I will resolve them in order of Issue 1, Issue 3 and Issue 2 and Issue 4.

SUBMISSIONS ON ISSUE 1
?Whether the Prosecution proved beyond reasonable doubt that the statement of the Appellant tendered and marked as EXH. “B? was voluntarily made?

Mr. Ndam submitted that the ruling of the trial Court delivered 19th December, 2011 overruling the objection of the Appellant’s counsel and admitting the extra judicial statement of the Appellant in evidence and marking same as Exhibit ?B? is wrongful. The learned counsel referred to the fact that the Prosecution sought to tender the statement of the Appellant but his counsel objected to admitting same on ground of involuntariness. The trial Court ordered for trial-within-trial. He contended that the learned trial Judge in its ruling delivered on the 17th March, 2014 admitting the extra-judicial statement of the Appellant as Exhibit “B” did not state the reason why he considered Exhibit “B” to be voluntarily made.
?
He contended that the learned trial Judge did not evaluate the evidence of witnesses particularly the evidence of DW1 at the

trial within trial and this occasioned a miscarriage of justice to the Appellant. He noted that the trial Court observed the marks on the body of the DW1 particularly the scars on his legs and back as a result of the torture by the Respondent to cause him to make Exhibit B.
Mr. Ndam therefore urged the Court to hold that Exhibit B was not made voluntarily.
In opposing reaction, Mr. S. D. Gadaka who prepared the Respondent?s brief rehashed the evidence of the Prosecution in the trial within trial to urge the Court to hold that the Respondent as Prosecution proved beyond reasonable doubt that Exhibit B was made voluntarily. He cited: SAUNDERS V. ANGLIA BUILDING SOCIETY (1971) AC ? 1004; EGBASE V. ORIAREGHAN (1985) LPELR – 1030 (SC).

He further submitted that the trial Court was not under any obligation to state reason(s) in his ruling for the conclusion it reached in admitting Exhibit “B” in trial within trial. The learned counsel urged the Court to resolve the issue in favour of the Respondent.

RESOLUTION OF ISSUE 1
On the state of the ruling delivered which did not adduce reasons for the conclusion arrived thereat; it

is trite that there is no hard and fast rule or set standard in the style of a Court?s decision. Every Judge has the freedom to use the peculiar method suitable for his purpose or which enables him perform his duty of judgment writing without undue stress. In doing that however, a Judge must remind himself that the component of proper decision ought to be present and must equally show that the judgment is fair, impassionate consideration of how the verdict came to be from his evaluation of the evidence put forth by the parties. See: MBANEFO V. MOLOKWU & ORS. (2014) LPELR ? 22257 (SC); TRADE BANK PLC V. CHAMI (2003) 13 NWLR (PT. 836) 158; DURU V. NWOSU (1989) 4 NWLR (PT. 13) 24; CIROMA V. ALI (1999) 2 NWLR (PT. 590) 317; N.B.C. PLC V. BORGUNDU (1999) 2 NWLR (PT. 591) 408; SANUSI V. AMEYOGUN (1992) 4 NWLR (PT. 237) 527. The apex Court said in DURU V. NWOSU (SUPRA) 24 AT 55 per Nnaemeka Agu Jsc:
?This is why I think it is not too late to say that there is no set standard or set approach to the writing of judgments. For over the years not only have definite parts of good judgment emerged although they remain usually unnamed, but in

particular, there is now only one for evaluating of evidence in a civil case. Every good judgment begins with an introduction of the parties and the nature of the action, states the issues in controversy, summons up the evidence called by each party, resolves the issues in controversy, and based upon such resolution of issues, reach a verdict and makes consequential orders.” From these guides stated above as mirrored in the judicial authorities, I have set out, the Appellant herein is correct that the ruling of the trial Court in the trial within trial is everything short of a good ruling, but the Appellant was not able to show how he was prejudiced or how a miscarriage of justice was occasioned by the failure of the learned trial Judge to write an elegant ruling. While Judges are encouraged to write elegant judgments or rulings that shall contain definite parts of a good decision, I must state however that it is not every error in the style of judgment writing that would vitiate a judgment once what the Court had done met the minimum standard of a good judgment and nothing shows that a miscarriage of justice has occasioned, the peculiar style utilized by

the judge notwithstanding. Having said that, I hold the ruling in question met the balance of justice irrespective of the fact that it is not an embodiment of a good decision. See: Ude V. State (2016) LPELR ? 40441 (SC); ARIORI V. STATE (1983) 1 SC; ADAMU V. STATE (1991) 6 SC. 17.

On this issue, the learned counsel for the Appellant also contended that the learned trial Judge did not properly evaluate the evidence of witnesses in the trial within trial particularly the evidence of DW1 before arriving at the conclusion that the extra judicial statement of the Appellant was voluntarily made. In trying to prove that Exhibit “B” was made voluntarily, a trial within trial was ordered by the trial Court and three (3) witnesses who were present when the Investigating Police Officer (PW2 in the main trial) recorded the statement of the Appellant all testified to the effect that the statement of the Appellant which was made in their presence was made voluntarily without duress, threat, promise or otherwise.
?
The evidence of the Prosecution in the trial within trial as garnered from the records is cogent and credible as to the manner and procedure the

Appellant?s statement was recorded by PW2 at the Police State CID?s interrogation room in the presence of other police officers and also how the statement was endorsed by a superior officer in both his presence and that of the Appellant herein. I am unable to fault the Prosecution?s evidence herein despite the lone evidence of the Appellant that he was tortured and beaten till he got scars on both his legs and back.

In all therefore, I hold that the trial Court was right when it found that Exhibit B was made voluntarily.
I resolve issue 1 in favour of the Respondent.

SUBMISSIONS ON ISSUE 2
?Whether the learned trial judge was in a position to properly recollect his impression of those who testified before him and the evidence adduced during the trial in view of the lapse of precisely eight months and fourteen days from the adoption of the oral address to the delivery of judgment.”

Mr. Ndam the learned counsel for the Appellant submitted that the trial Court was wrong in its judgment delivered on 14th February, 2017 when it convicted the Appellant and sentenced him to death by hanging as a result of lost of

impression of those who testified before the learned trial Judge in view of the lapse of precisely eight months and fourteen days from the adoption of the oral address to the delivery of judgment and this occasioned a miscarriage of justice to the Appellant.

The learned counsel noted that hearing of the case commenced on 3rd June, 2008 and evidence was concluded on 7th March, 2016. Written addresses were adopted on 20th March, 2016 and judgment was eventually delivered on 14th February, 2017 which is precisely eight months and fourteen days from the adoption of the oral address contrary to the provisions of Section 294(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).

Mr. Ndam invited the Court to observe that the record of the trial Court went blank from 23rd June, 2014 till 7th March, 2016 when the trial Court adjourned for addresses of counsel. He noted that, that was a period of nineteen months seven days to address the Court. He referred to the record of appeal at pages 101-109. The learned counsel submitted that: the two prolonged adjournments that is from 23rd June, 2014 till 7th March, 2016 when the trial Court

adjourned for addresses of counsel; and from 20th April, 2016 to 14th February, 2017 when judgment was delivered coupled with the prolonged trial from 3rd June, 2008 to 14th February, 2017 drastically affected the ability of the learned trial Judge to properly recollect his impression of those who testified before him and the evidence adduced during the trial in view of lapses of the above stated period of time and this seriously occasioned a miscarriage of justice to the Appellant; and the same offends Section 294(1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) which makes it mandatory for judgment to be delivered within three months from the date of final addresses.

He went further to highlight some instances of the effect of the delay on the appraisal of evidence by the trial Court to submit that from the errors highlighted, it is obvious that an objective and thorough appraisal of the issues of law and facts was not done thus occasioning a grave miscarriage of justice to the Appellant.

The learned counsel urged the Court to hold that the judgment of the trial Court is a nullity as same was delivered without

jurisdiction having been delivered outside the constitutionally prescribed period. He cited: MADUKOLU V. NKEMDILIM (1962) 1 ALL NLR 587; J.S. LTD. V EZENWA (1996) 4 NWLR (PT. 443) 391.

He also quarreled with the procedure adopted by the trial Court, to wit: oral address without a formal written address. He contended that this procedure is unknown to superior Courts of record in Nigeria. He submitted that the breach of the procedure of filing written addresses by counsel and the substitution of same with oral address is a dangerous precedent which robed the trial Court of its jurisdiction. He urged the Court to so hold and to resolve issue 2 in favour of the Appellant.
?
Mr. Gadaka in the Respondent?s brief submitted that the trial Court was properly in a position to recollect his impression of those who testified before it during the trial notwithstanding the lapse of time from the adoption of oral addresses to the delivery of judgement as the elapsed time in question was not much and so not fatal to the judgement since it did not occasioned a miscarriage of justice. He cited:INTERNATIONAL BANK OF WEST AFRICA V. FOLA SASEGBON (2007) 16 NWLR (PT.

1059) 195; SECTION 294 (1) OF 1999 CONSTITUTION.

He contended that the Appellant’s submission did not show any miscarriage of justice that adversely affected the Appellant. His reason that the prolonged trial from 3rd June, 2008 to 14th February, 2017 drastically affected the ability of the trial judge to properly recollect his impression of those who testified before him was a mere assumption. He further submitted that the delay made by the trial Court in delivering its judgement did not occasion miscarriage of justice as it gave reasons for the delay. He urged the Court to hold that the trial Court delivered its decision within its jurisdiction.

The learned counsel for the Respondent also submitted that PW2 Asp. Habu Mohammed told the trial Court that the investigation showed that the Appellant and 2 other convicts were in the house of one Alhaji Lawan Madugu on 20th August, 2008 and robbed his family of some money, jewelleries and cell phone and never stated that they robbed one Mohammed Nawaita as the Appellant submitted. He referred to page 84 lines 11-21 of the Records.
?
Again it was also the Respondent?s submission that the trial

Court was right to have relied on the oral addresses of both prosecution and defence to arrive at its judgement as there was no irregularity with the procedure as alleged by the Appellant. He argued that the trial Court had the right to even dispense with the oral addresses of parties and yet arrive at a just and fair judgement once the facts are straight forward as are in the instance case. He submitted that it is a settled law that an accused person who acquiesced to an irregular procedure that did not lead to a miscarriage of justice cannot complain about the procedure on appeal. UWAEKWEGHINYA V. THE STATE (2005) LPELR- 3442 (SC).

The learned counsel finally urged the Court to resolve the issue in favour of the Respondent.

RESOLUTION OF ISSUE 2
I would like to resume the resolution of this issue by addressing the contention of the Appellant?s counsel that the trial Court was robbed of its jurisdiction when it adopted the procedure which allowed for the counsel for the parties to make oral addresses at the close of evidence as against written addresses as required in superior Courts. There is no gainsaying that the procedure adopted by

the trial Court was irregular but whether such irregularity robbed the trial Court of its jurisdiction is another issue. The state of the law is settled that addresses of counsel no matter how well written cannot take the place of evidence placed before the Court. This is to say that the Court cannot rely on a sound address of a counsel to determine a case before him in that the essence of the final address of a counsel at the close of evidence is to assist the Court by providing the Judge with a clear mental opinion to see through the facade and discover the hard core of a party?s case. That is not to say that without written address a Judge cannot deliver a sound judgment as there are instances where the addresses of counsel are mere formalities in that they do not add value or strength to the parties? case. The irregularity herein does not touch on either the merit, justice or fair hearing of the case since counsel on both sides were given equal opportunity to make their final addresses orally. In the circumstance, the mere fact that a superior trial Court ordered oral final addresses as opposed to written addresses will not rob the said Court

of its jurisdiction except it is shown that there was a miscarriage of justice. In the instant case, the Appellant did not in any way allude to the fact that there was injustice meted on him by reason of the oral final address which his counsel made. In the event that there was no miscarriage of justice as a result of the irregularity of the trial Court adopting the procedure of oral final addresses as against written addresses, I hold that the trial Court was not robbed of its jurisdiction.

Relevant to the determination of the next dispute of this issue is principally the provisions of Section 294 (1) and (5) of the Constitution of the Federal Republic of Nigeria which provides:
Section 294 (1)
“Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of delivery thereof.”
Section 294 (5)
“The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with

the provisions of Subsection (1) of this section unless the Court exercising jurisdiction by way of appeal or review of the decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.”
The general interpretation given to the combined reading of Section 294 (1) and (5) of the Constitution of the Federal Republic of Nigeria is that, a Court?s decision cannot simply be nullified for the fact that the decision was delivered outside the ninety day period allowed by the Constitution. The party seeking such nullification must forge ahead to state facts that will satisfy the appellate Court that he has suffered a miscarriage of justice by reason of the failure of the lower Court to deliver its decision within the time frame as provided by the Constitution. Where he so fails to establish a miscarriage of justice in the decision delivered, the appellate Court will not declare the judgment a nullity. The Courts have therefore placed more emphasis on the effect the failure to deliver judgment within the constitutional time frame has on the decision than the length of time it took the Court to deliver its decision

outside the constitutional stipulated time. See: SAVANNAH BANK OF NIGERIA LTD. V. STARITE INDUSTRIES OVERSEAS CORPORATION (2009) 8 NWLR (PT. 1144) 491, INTERNATIONAL BEER AND BEVERAGES INDUSTRIES LTD V. MUTUNCI COMPANY (NIG) LTD (2012) 6 NWLR (PT. 1297) 487, KOLAWOLE INDUSTRIAL COMPANY LTD V. ATTORNEY GENERAL, FEDERATION (2012) 14 NWLR (PT. 1320) 221; PEOPLES DEMOCRATIC PARTY V. OKOROCHA (2012) 15 NWLR (PT. 1323) 205; NNPC V. ZARIA & ANOR (2014) LPELR ? 22362 (CA).
Notably, the insertion of a provision in the Constitution stipulating a time frame for delivery of judgment in a case after final address is in recognition of the fact that human memory is circumscribed by time and space and loses its impressions or knowledge of persons, things, with the passage of time and such loss increases with time and pre-occupations. See: IFEZUE V. MBADUGHA (1984) 5 SC 79. Therefore, where the delay in the delivery of judgment is unconscionable, undue, immoderate in that it exceeds reasonable limit, then, it will be beyond peradventure that it will, without more, affect the memory of the trial Judge and his impressions of the facts and evidence led in the matter

such that whichever way the decision goes, it cannot be, and would not be seen to be justice according to law.
In a more recent decision of the Supreme Court, the apex Court emphasized Section 294 (5), stating that notwithstanding its decision in IFEZUE V. MBADUGHA (supra); delay alone will not lead to setting aside the judgment unless there is evidence of miscarriage of justice. See:AKOMA & ANOR V. OSENWOKWU & ORS (2014) LPELR ? 22885 (SC); DALYOP V. MADALLA (2017) LPELR – 43349 (CA). In legion of authorities, the decisions have echoed that in deciding whether a party has suffered a miscarriage of justice as a result of inordinate delay between the conclusion of evidence and the delivery of judgment, the emphasis is not simply on the length of time but on the effect it produced on the mind of the Court. Still in the said circumstance, it remains the duty of the Appellant to show how the delay has affected the perception, appreciation and evaluation of the evidence by the judge or justices as the case may be or how the delay eroded the confidence in the entire judicial process which produced the judgment. In AKOMA & ANOR V. OSENWOKWU & ORS. (supra);

the apex Court sounded that:
“In cases where the delay involves the judgment of a trial Court which is to hear and appraise witnesses, I will readily agree that a delay of about 17 months after final addresses was so inordinate to affect the outcome of the proceedings. However, when it concerns an Appellate Court as in this case, I will be very slow to so declare because Appellate Courts’ functions are based on printed records only which involved the reading and appreciation of written briefs of argument and oral amplifications of such Briefs which are recorded by the justices. They cannot be said to have lost touch with the contents of the printed reviews placed before them such that it would affect their perception and evaluation of the Appeal which is based on printed records only. I think that this section applies more to trial Courts than Appellate Courts.?
The contention of the Appellant herein is duo in nature, which are, the prolonged trial and the untimely delivery of the judgment of the Court. From the records, the hearing of the case commenced on 3rd June, 2008 and evidence was concluded on 23rd June, 2014, that

is about 6 years. Thereafter, the record of the trial Court went blank from 23rd June, 2014 till 7th March, 2016 when the trial Court adjourned for oral addresses of counsel. That is to say the oral addresses were made about 21 months after the close of evidence. Oral addresses were made on 20th March, 2016 and judgment eventually delivered on 14th February, 2017 which is precisely eight months and fourteen days from the date of the oral addresses. The learned counsel for the Appellant submitted that: the two prolonged adjournments that is from 23rd June, 2014 till 7th March, 2016 when the trial Court adjourned for addresses of counsel; and from 20th April, 2016 to 14th February, 2017 when judgment was delivered coupled with the prolonged trial from 3rd June, 2008 to 23rd June, 2014; had diminishing effect on the Judge?s perception and impressions of the witnesses who testified before him.
?Emphasis must be placed here that Section 294(1)and (5) of the Constitution concerns itself with failure to deliver judgment within 90 days after conclusion of evidence and addresses of counsel and the miscarriage of justice it occasions on the judgment

delivered by the Court. Clear from Section 294 (1) of the Constitution is that the 90 days within which judgment must be delivered counts from the conclusion of evidence and written addresses. Focus has always been wrongly placed on the fact that the 90 days counts solely from the date of addresses of counsel.
Also, I want to remark that delay between the commencement of evidence and conclusion of evidence though not reckoned with by Section 294 (1) of the Constitution, has great effect on the distinct clear impressions and perceptions of the trial Court of the witnesses who testified, at the point of judgment delivery. It is no longer novel that the primary role of the trial Court is the evaluation of evidence based on the credibility and demeanour of the witnesses he had observed and watched as they gave evidence. For this reason and for the fact that the human brain and memory tend to lose facts observed and stored therein with loss of time, the trial Courts must of necessity manage the case flow in their courts in such a way that once evidence is commenced on a matter, its conclusion should be within a reasonable time frame where the trial Judge

would still be able to recollect the demeanour and credibility of the witnesses otherwise the inability of the human brain to retain facts for too long will sway the Judge to miscarry justice. This is greatly the reason why the Constitution has placed the burden on the Courts to deliver their judgments 90 days after the conclusion of evidence and addresses so that the Courts would retain a clear picture of the credibility and demeanour of the witnesses who testified and who are referred to in the counsel?s addresses for a proper perception and evaluation of evidence to lead to a just judgment.
There is no controversy that the learned trial Judge violated Section 294 (1) of the Constitution, what remains to be examined is whether in the instant case, the Appellant proved any miscarriage of justice based on the said delay in accordance with the spirit of Section 294 (5) of the Constitution. To establish this the learned counsel for the Appellant, Mr. Ndam contended that while PW1, PW3 and PW4 testified that it was Alhaji Lawal Madugu?s household that was robbed by the Appellant and the co convicts; PW2 contradicted this by testifying that it was

the household of one Alhaji Mohammed Nawaita in Damaturu that was robbed by unknown gun men. He noted that another instance where the trial judge lost perception and impressions of the evidence led and came to a wrong conclusion was with the testimony of PW4. The alleged victim of the crime categorically made it clear in her testimony on oath during cross-examination that the accused persons were sitting at the back of the vehicle when the robbers struck. See page 89 of the record of appeal. This suggests that the Appellant and the co-convicts may not have been the armed robbers who robbed PW4.
Furthermore, from the records, the learned trial Judge in his judgment at pages 112 to 113 particularly his summary of the evidence of PW2 and PW4 from where he drew his impressions, perceptions and made his evaluations, missed material evidence of the witnesses which led to his wrongly arriving at the conclusion to convict the Appellant. At page 91 of the records, the PW2 one of the Investigating Police Officers under cross examination gave evidence that the complainant of the case was Alhaji Mohammed Nawaita in Damaturu whose house the Appellant and 2 others

allegedly robbed as opposed to the evidence of the other Prosecution witnesses. The learned trial Judge did not evaluate such vital evidence nor address the issue of whose house if any there was robbery because he had lost touch of the evidence that was placed before him owing to the undue delay in delivering his judgment after conclusion of evidence and addresses. PW4 in her evidence, particularly Exhibit D at page 20 and evidence on oath at pages 88 to 89, stated that at about 2015 hours and or between 7pm to 8pm respectively; unknown gunmen attacked them in the house and robbed them. In Exhibit D, she said they robbed her of her gold ear rings valued N14,000.00 and assaulted her and that she did not have money to give them. She further testified that she could recognize the person that collected her ear rings because ?he was giant among them all?. In her statement in Court she said it was her husband that made a report to the police as opposed to the evidence of PW2. She maintained that she had never seen the Appellant before the robbery. She added ?The robbers collected money from me. The accused (sic) were sitting at the back of the

vehicle when the robbers struck I hold that the testimony of the PW4 (the alleged victim of the armed robbery) is contradictory in material particulars. Her testimony that the Accused persons were sitting at the back of the vehicle when the robbers struck implies that the Accused persons were different from the armed robbers who robbed the victim.
The learned trial judge completely lost recollection of these important testimonies thereby losing the advantage of having heard the witnesses as a result of poor memory and loss of impressions of the trial and testimonies of the witnesses due to failure to deliver judgment within 90 days after conclusion of evidence and addresses which delay occasioned a miscarriage of justice to the Appellants. See:AKPAN V. UMOH (1999) 7 SC (PT.II) 13; ATUNGWU & ANOR. V. OCHEKWU (2013) LPELR ? 20935 (SC).
I must note that even when they are good reasons for failure to abide Section 294 (1) of the Constitution, once it can be shown that the delay occasioned a miscarriage of justice, the decision would be declared a nullity. The delay of about 28 months from conclusion of evidence and addresses

before judgment delivery is definitely an inordinate delay which obviously from the analysis made above affected the trial Judge?s perception, appreciation and evaluation of the evidence leading to loss of impressions of the witnesses particularly PW2 and PW4 which occasioned a miscarriage of justice for which this Court must of necessity interfere to nullify the judgment. See: DIBIAMAKA V. OSAKWE (1989) 3 WLR (PT. 107) 101.
For all I have said above, I hold that the judgment of the trial Court delivered more than 90 days after conclusion of evidence and addresses which occasioned a miscarriage of justice is a nullity.
I therefore resolve issue 2 in favour of the Appellant.

Having come to this conclusion, I would have gone ahead to order a retrial but, this Court being an intermediary Court is enjoined to consider and resolve all issues distilled in an appeal. The apex Court has now firmed the position of the law that even where a law fundamental to criminal proceedings and capable in appropriate cases of rendering a trial a nullity has not been complied with, the Court of Appeal will not jump at the exercise of its discretion to order a

retrial. Although it is its discretionary power, that power must be exercised judicially and judiciously, and not whimsically or capriciously. See: ONWE V. STATE (2017) LPELR ? 42589 (SC). IN ONWE V. STATE (supra); the Court of Appeal only, in effect, considered whether the trial Court complied with Section 215 of the Criminal Procedure Law. Upon finding that Section 215 CPL was not complied with the Court of Appeal quashed the trial, conviction and sentence, and ordered fresh trial. The Court did not consider or resolve the first issue in the appeal suggesting that the evidence on which the Appellant was tried was full of material contradictions. The apex Court held that the order for retrial or fresh hearing made by the Court of Appeal was wrongly made as the Court of Appeal ought to have determined the appeal on its merit even after finding that the arraignment did not comply with Section 215 CPL. The position of the law therefore is that before the Court of Appeal can order fresh trial, it ought to consider whether the evidence at the trial High Court justify the order for fresh trial. In other words, the order for fresh trial is not automatic once

the Court of Appeal holds that the trial Court did not comply with a law fundamental to criminal proceedings. The Court of Appeal therefore can only make an order for a retrial where after it has arrived at a conclusion that the trial Court did not comply with a law fundamental to criminal proceedings, and upon considering the record of proceedings as a whole satisfies itself that the evidence disclosed a substantial case for proper trial of the accused person. The rationale behind this position of the Supreme Court is that, the order for fresh trial in the face of evidence which prima facie cannot sustain conviction, is oppressive, preposterous and a travesty of Justice. See: GANIYU V. THE STATE (2013) LPELR-20334 (SC); EDACHE V. QUEEN (1962) 1 SCNLR 22; ADISA V. A.G. WESTERN NIGERIA (1965) 1 ALL NLR, 412; AND EWE V. THE STATE (1992) 6 NWLR (PT. 264) 147 AT 157.
In the instant appeal, the remaining issues are not trivial. I have gone through the records and I view that it will better serve the interest of justice to determine the appeal on its merit than order a retrial at this point which I hold will occasion a greater miscarriage of justice. See:

STATE V. MATHEW (2018) LPELR ? 43712 (SC). I shall therefore proceed to consider Issues Nos. 3 and 4.

SUBMISSIONS ON ISSUE 3
?Whether the Prosecution proved the offence of armed robbery against the Appellant beyond reasonable doubt to warrant his conviction and sentence to death by hanging.”

Mr. Ndam learned counsel for the Appellant submitted that the trial Court was wrong in its judgment delivered on 14th February, 2017 when it convicted the Appellant and sentenced him to death by hanging. He contended that the Prosecution did not prove the ingredients of the offence of armed robbery. He cited: ANI V. STATE [2001] 5 SC (PT. 1) 33; [2003] 11 NWLR (PT. 830) 142 AT 161 PARAGRAPHS C-E. He noted that the offence was committed in Yobe State but the Appellants were arrested in Gombe State forty one clear days after the robbery. The learned counsel faulted the mode of identification of the Appellant by the victim and argued that the flaw made it impossible for the Respondent to link the Appellant with the crime. He relied on: ARCHIBONG V. THE STATE (2006) 14 NWLR (PT. 1000) 349 AT 371. The learned counsel noted that the Appellant was

never at any point identified as one who committed the robbery. He referred to the evidence of the victim at page 87 of the records where she said she had never seen the Appellant before to contend that identification parade was necessary and that failure of the Prosecution to have an identification parade to identify the Appellant was fatal to their case. He leaned on: IKEMSON V. STATE (1989) 3 NWLR (PT. 110) 455.

The learned counsel further submitted that the testimony of the PW4 the victim of the armed robbery is contradictory in material particular, he referred to page 89 of the records where she testified under cross-examination that the Accused persons were sitting at the back of the vehicle when the robbers struck and argued that by implication the Accused persons were different from the armed robbers who robbed the victim.

He urged the Court to resolve issue 3 in favour of the Appellant and to accordingly discharge and acquit the Appellant.
?
In opposition reaction, Mr. Gadaka of counsel to the Respondent submitted that the learned trial Judge was right to have held that the Respondent proved the offence as charged against the Appellant.

He noted the ingredients of the offence and cited: AFOLALU V. THE STATE (2010)16 NWLR (PT. 1220) 584. He rehashed the evidence of the Prosecution to submit that there was robbery which took place on 20th August, 2008 in the house of Alhaji Lawan Madugu at Damaturu, Yobe State. He referred to: pages 63; 64; 84; 93; 96; 98; 99 and 101 of the records and Exhibit B the confessional statement of the Appellant.

The Respondent in an attempt to prove that the Appellant and others took part in the commission of the said robbery referred to the evidence of PW4 Adama Ma’azu a victim of the said robbery. PW1 Insp. Garba Musa testified that the Appellant made a confessional statement which he recorded. He also stated that identification parade was conducted and PW4 Adama Ma’azu identified the Appellant and his co convicts. The learned counsel submitted that where there is a proper identification as a result of the opportunity a witness had the Court can rely on that recognition and identification and convict the appellant. He cited: OLALEKAN V. THE STATE (2001)18 NWLR (PT. 746) 793.

The learned counsel further relied on Exhibit “B” where the Appellant allegedly

confessed to have robbed PW4.

He therefore urge the Court to resolve issue 3 in favour of the Respondent and to hold that the prosecution has proved the offence of armed robbery against the Appellant beyond reasonable doubt which warranted his conviction and sentence by the trial Court.

RESOLUTION OF ISSUE 3
The question to be answered herein is whether the evidence adduced by the Prosecution at the trial Court can 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: STATE V. SANI (2018) LPELR – 43598 (SC); AYINDE V. THE STATE (2018) LPELR ? 44761 (SC); EBBA V. OGODO (1984) 1 SCNLR 372; SUBERU V. THE STATE (2010) 8 NWLR (PT. 1197) 586. It is important to note the prescription under Section 135 of the Evidence Act on the Standard of proof in criminal proceedings 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, it 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.
Expounding the above referred section, the apex Court in Chukwuma V. FRN (2011) 13 NWLR (Pt. 1264) 391 at page 408; per Muhammad JSC (as he then was) at page 408, paras D – H held 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).
Emphasizing the yardstick on the standard of proof well set out in Law and as expatiated in the case of CHUKWUMA V. FRN (Supra); His Lordship Peter-Odili in State V. Sani (supra) stated that, where the victims of the crime by their evidence has 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 an essential element of the offence of armed robbery is missing which is fatal to the case of the prosecution. See: 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).

In contesting that the Prosecution failed to prove its case against the Appellant, the learned counsel for the Appellant stemmed firmly on the fact that the PW4 the victim did not properly identify the Appellant to link him up with the robbery. The Prosecution counsel made reference to the evidence of the PW4 on record and the fact that the PW4 in identification parade identified the Appellant as one of the robbers to urge the Court to uphold the conviction and sentence of the Appellant.

(5) The previous contacts between the two parties.
See: NDIDI V. STATE (2007) LPELR ? 1970 (SC). The PW4 herein in her extra judicial statement at page 20 of the record said, ?I can identify the one that collected the set of gold Earings (sic) ? because he was giant among them all?. In her evidence under cross examination she said, ?I have never seen the accused person in my life. The robbers collected money from me. The accused (sic) were sitting at the back of the vehicle when the robbers struck.? The evidence of PW4 on the identity of the Appellant does not without reasonable doubt link the Appellant to the robbery. From her statement to the police the only person among the robbers she could identify was the one who collected her gold ear rings because he was bigger than the others yet she did not at any point give evidence that it was the Appellant that ?was the giant among them all? that collected her ear rings. She did not link the Appellant as either the ?giant among them all? or the robber that collected her ear rings. Again she said she had never seen the Appellant, and the accused persons

the Appellant inclusive were sitting at the back of the vehicle when the robbers struck. The doubt raised by the evidence of PW4 is that the Appellant and the co convicts would have been different from the robbers that struck especially since through the traverse of the Respondent?s evidence, it was not stated that the robbers who attacked the PW4 in her home came in a vehicle. The doubt further raised is, how did the PW4 identify the Appellant after about 41 days, since the only time she saw him was when he was sitting in the vehicle while she was in the house frightened at gun point? The Prosecution did not give evidence as to the light condition in the house where the victim was and in the vehicle where the Appellant and the other convicts were sitting. The PW4 and the entire Prosecution witnesses left the Court to grope as to how the PW4 was in a position to identify the Appellant in the given circumstance. I am in tune that for the prosecution, the PW1 said there was identification parade and the PW4 identified the Appellant and his co convicts as the robbers, but, the PW4 in her statement said the only person she could identify was the person that

took her gold ear rings and did not in any where link the Appellant as the one she identified. It is contradictory therefore, for PW1 to say the PW4 identified the Appellant and the other 2 convicts as the robbers contrary to her statement made after the arrest of the alleged robbers. Again there was no clue given as to the procedure of the identification parade. Accordingly, considering the circumstances PW 4 saw Appellant if at all, lack of opportunity of close contact or observation of the Appellant, absence of previous contact with the Appellant; I find the weak evidence of PW4 (victim) poor in identifying the Appellant as one of the robbers, the same being capable of different meanings, the Appellant must be given the benefit of the doubt. See:UKPABI V. THE STATE (2004) LPELR ? 3346 (SC); ATTAH V. STATE (2010) LPELR ? 597 (SC).
Where the case of an accused person depends wholly or substantially on the correctness of his identification, a trial Judge must weigh the victim?s evidence on the identity of the accused with other evidence adduced by the prosecution before convicting the accused in reliance on the correctness of the

identification. See: R V. TURNBULL & ORS (1976) 3 A.E.R 549; IKEMSON V. THE STATE (1989) 3 NWLR (PT. 110) 455. From what I have said above, I can only conclude that there is serious doubt as to the identity of the Appellant as one of the armed robbers that robbed the PW4?s home.

There is also reasonable doubt as to the truthfulness of the alleged robbery. The doubtful scenario records that the alleged offence was committed on 20th August, 2008; the only victim who testified (PW4) made a statement to the police on 1st October, 2008 (Exhibit D) which is exactly 43 days after the alleged robbery incident and two days after the arrest of the Appellant. There is no record in the proof of evidence of the alleged complaint made to the police by Alhaji Lawan Madugu whose household was allegedly robbed and who the Prosecution witnesses said is the nominal complainant; he was not even called as a witness. The picture painted above also raises serious doubt as to whether there was robbery and which doubt must be resolved in favour of the Appellant.
?
Again from the Respondent?s evidence, there are contradictions on whose house the Appellant and

the co-convicts allegedly robbed. While the victim said the robbery took place on 20th August, 2008 in her house that is Alhaji Lawan Madugu at Damaturu, Yobe State; and that it was her husband Alhaji Lawan Madugu that was the complainant, the PW2 one of the Investigating Police Officers said the robbery took place in the house of Alhaji Mohammed Nawaita in Damaturu who was the complainant. When as in this case the Prosecution gives contradictory evidence as to the complainant and the house that was allegedly robbed; then there is serious doubt as to whether there was any robbery at all. It was held in PAUL AMEH V. THE STATE (2018) LPELR ? 44463 (SC); that when the prosecution places two versions of one incident before the trial Court then they would have failed to prove the guilt of the accused person beyond reasonable doubt. The case of the prosecution is considered as a whole, therefore where pieces of prosecution’s evidence contradict another piece, the Court is not permitted to pick and choose which piece to believe or disbelieve. See also: BOY MUKA V. THE STATE (1976) 10-11 SC 305. In the circumstance therefore I hold that the Respondent did not prove

beyond reasonable doubt that there was robbery and that the accused took part in the robbery. The question that will arise therefrom, is the effect of Exhibit B on the case of the Prosecution.

In answer to this, it is important to state that a voluntary confessional statement though admissible against the person that made it and constitutes relevant fact against him, OFORDIKE V. STATE (2019) LPELR – 46411 ( SC); NSOFOR V. STATE (2004) 18 NWLR (PT. 905) 292; must be consistent with other ascertained facts which has been proved, SHURUMO V. STATE (2010) LPELR – 3069 (SC); and the same must be direct, unmediated, positive, unequivocal, open-and-shut; to found conviction of an accused without corroboration, OJO V. STATE (2018) LPELR ? 44699 (SC); BABALOLA V. STATE (2017) LPELR ? 42365 (CA). Exhibit B contradicts the victim?s (PW4) evidence that the Appellant and the other co convicts were sitting in the car when the robbers struck. The said exhibit is in no way supported by the evidence of the Prosecution. PW4 was sure of what she saw and as such the Appellant who cannot be holier than the Pope cannot impose the fact that he and others

robbed the PW4 when PW4 said otherwise. In my view Exhibit B is not consistent with other ascertained facts which have been proved by the Prosecution to wit: that the Appellant and the co-convicts were sitting in the car when the robbers struck and the one who robbed the PW4 of her gold ear rings was the giant amongst them who PW4 did not say was the Appellant. Accordingly, Exhibit B alone cannot be relied upon to convict the Appellant. I therefore hold that the Prosecution did not establish that there was robbery nor the offence of armed robbery against the Appellant beyond reasonable doubt to warrant his conviction and sentence to death by hanging.
I accordingly resolve issue 3 in favour of the Appellant.

SUBMISSIONS ON ISSUE 4
?Whether the non-interpretation/translation of the proceedings of the lower Court of 21/1/09, 24/2/09, 18/3/09, 6/4/09, 14/4/09, 29/9/10, 30/11/10, 12/1/11, 3/2/11, 30/3/11, 14/4/11, 1/12/11, 12/12/11, 19/12/11, 2/2/12, 16/2/12, 8/3/12, 17/4/12, 15/5/12, 12/6/12, 3/6/13, 6/7/13, 8/7/13, 13/7/13, 23/9/13, 4/11/13, 27/1/14, 17/3/14, 5/5/14, 26/5/14, 23/6/14, 7/3/16, 30/3/16, 20/4/16 and 14/2/17 affected the

Appellant’s right to an interpreter as provided for under Section 36(6)(e) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).

Mr. Ndam submitted that the non-interpretation/translation of the proceedings of the trial Court on the days listed in this issue as stated above infringes the Appellant’s right to an interpreter as provided for under Section 36(6)(e) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) and this occasioned a miscarriage of justice to the Appellant.

He argued that by Section 36 (6)(e) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) the right to an interpreter to interpret proceedings to the language the accused person can understand, is the right of an accused person to fair hearing. He contended that, the Appellant herein understands Hausa only but the proceedings of the days listed above were not interpreted to him in Hausa language which he understands.

The learned counsel urged the Court to hold that the non-interpretation of the proceedings to the Appellant is an infringement on his right as guaranteed under the Constitution.

In opposing response, Mr. Gadaka submitted on issue 4 that the right of the Appellant for an interpreter under S.36 (6)(e) of the 1999 Constitution has not been breached as the Appellant was represented by a counsel as required by S. 36 (6)(c)(d) of the 1999 Constitution. He argued that where in a criminal case a counsel represents an accused person as in this case, it is the duty of the counsel to explain to the accused person what transpired in the Court. He cited: UWAEKWEGHINYA V. THE STATE (2005) LPELR- 3442 (SC) where it was held that if the accused person does not ask for an interpreter the failure to supply one would be treated as a matter of procedure and a conviction may only be set aside if the failure to supply an interpreter led to a miscarriage of justice and that if the accused person is represented by a counsel the objection must be taken at the trial Court and not on appeal.

On the basis of the above decision of the Supreme Court he urged the Court to hold that the Appellant?s right of an interpreter has not been breached and for the Court to resolve issue 4 in favour of the Respondent.
He also urged the Court to dismiss the appeal on the

four issues formulated by the Appellant and to affirm the decision of the trial Court.

RESOLUTION OF ISSUE 4
The crux of the issue under consideration is the alleged failure to abide the provisions of Section 36 (6) (e) of the Constitution of the Federal Republic of Nigeria. The said section provides:
S. 36 (6) – ?Every person who is charged with a criminal offence shall be entitled to:-
(e) – have, without payment the assistance of an interpreter if he cannot understand the language used at the trial of the offence.”
I shall start with the fact that the Appellant at the trial Court did not raise the fact that his right under Section 36 (6) (e) was denied him, so the constitutional procedural requirement was not considered by the trial Court and pronounced upon. Transparently therefore, issue 4 arising from ground 3 of the grounds of Appeal is a fresh issue, which never arose from the decision appealed.
An issue is a fresh issue at the appeal Court, if it was not an issue, either as a point of law or fact, that was not raised, tried, considered and pronounced upon by the Court below: SHONEKAN V. SMITH (1964) 1 ALL

N.L.R. 158; AKPENE V. BARCLAYS BANK (1977) 1 S.C. 47; FADIORA V. GBADEBO (1978) 1 S.C. 219 AT 247; OSINUPEBI V. SAIBU (1982) 1 S.C. 104; OKOLO V. UNION BANK OF NIGERIA LTD (1998) 2 N.W.L.R. (PT. 539) 618. I wish to refresh that an appeal is a complaint against the ratio decidendi of the decision appealed against. That is why a ground(s) of appeal must properly relate to the decision on appeal: ODUNTAN V. AKIBU (2007) 7 S.C. (PT. 2) 106; KWAJAFFA V. BANK OF THE NORTH (2000) 5 S.C. (PT.1) 103 AT 118. Accordingly, a ground of appeal is incompetent if it constitutes a challenge to a point that does not arise directly from the decision. See: M.B.N. PLC V. NWOBODO (2005) 15 N.W.L.R. (PT. 945) 379. Importantly, an Appellant who intends to raise a fresh issue or a new point is required to seek and obtain leave to do so. Where no such leave was previously sought and obtained by an Appellant to raise a new point canvassed in any ground of the grounds of Appeal, the said ground is incompetent and must be struck out. Accordingly, issue 4 which arises from ground 3 being a point not canvassed and pronounced upon by the trial Court in law is incompetent and liable to be

struck out. Howbeit, irrespective of the fact that issue 4, formulated from ground 3 of the Appellant’s grounds of appeal is a fresh issue, I will still consider it on its merits incase I am wrong in holding that it is incompetent.

Permit me to stress the obvious fact which is that, the trial Court is a superior Court of record established by law and constituted in such a manner as to secure its independence and impartiality. By the requirements of the law under Section 36(1) of the Constitution for its neutrality and impartiality, courts are enjoined to consider only the issues or complaints laid before it for adjudication. The trial Court herein like any other Court of law cannot enter into the arena to grant the Appellant a prayer he did not seek. Section 36 (6)(e) of the Constitution for all intents and purposes gave the Appellant the right of the assistance of an interpreter, without payment, if he cannot understand the language used by the Court. That right is a personal right to any accused person in criminal proceedings he is standing trial, and the watch word is ?if he cannot understand the language used by the Court.? By implication

therefore, if an accused person understands the language of the Court, there will be no need for an interpreter. Like the Ethiopian eunuch and Philip in the holy book, when Philip asked him ?understandest thou what thou readest? And he said, How can I, except some man should guide me? ? Acts 8: 30-31. So to the Appellant who complains that the trial Court did not grant him the use of an interpreter at his trial, I ask, how could the Court have granted you an interpreter, except you asked. In the instant appeal, the Appellant was represented by a counsel all through the trial and at no point did he or his counsel indicate let alone demand for an interpreter or interpretation of the proceedings for the Appellant and the Court refused to oblige him. Rather the Appellant by his issue 4 would wish the learned trial Judge descended into the arena and granted him an interpreter he did not ask for. An accused person can only complain that he was denied the right to an interpreter or interpretation of a Court?s proceedings if he asked for an interpreter and he was not given. See: THE STATE V. GWONTO & ORS (1983) 3 S.C. 62.
?In the GWONTO case,

some of the accused persons, like the instant Appellant, claimed not to understand English Language, and that they understood only Hausa Language. Like the instant Appellant, also GWONTO & ORS were represented by Counsel at the trial. Nnamani, JSC, who wrote the lead judgment in the GWONTO case , placing emphasis on the words in Section 36(6)(e) of the Constitution ? ?IF HE CANNOT UNDERSTAND THE LANGUAGE USED AT THE TRIAL OF THE OFFENCE,? stated:
?The right to an interpreter only arises in such circumstances. This is why it is the duty of the accused person, or his Counsel, to bring to the notice of the Court the fact that he does not understand the language in which the trial is being conducted. Unless he does, it will be assumed that he has no cause for complaint and the question of violation of his right to an interpreter will not arise.
See also:QUEEN V. IMADEBHOR EGUABOR (1962) 1 ALL N.L.R. 287; LOCKNAN & ANOR V. THE STATE (1972) 1 ALL N.L.R. (PT. 2) 62. From the foregoing, I hold, that in a criminal trial where an accused person is represented by Counsel, if objection is not taken to any irregularity with

respect to an interpreter and or interpretation of proceedings, such accused person cannot later on complain that his right, to have the proceedings interpreted to him in a language he understands, had been violated. LANRE V. STATE (2018) LPELR ? 45156 (SC). Equally, an accused person and/or his Counsel who, at the trial, acquiesced in such irregular procedure can only complain, and his complaint upheld if he shows that his trial, conviction and sentence had occasioned a substantial miscarriage of justice to him: AJAYI & JULANDE JOS V. ZARIA N.A. (1964) N.N.L.R. 61. The burden is on the Appellant to show that failure to provide him with an interpreter occasioned a miscarriage of justice. QUEEN V. EGUABOR (SUPRA); UWAEKWEGHINYA V. THE STATE (2005) ALL F.W.L.R. (PT. 259) 1911 AT 1923 – 1924; ANTHONY OKORO V. THE STATE (2012) L.P.E.L.R. ? 7846 (S.C). There is nothing on record and on this issue 4 to show that failure of the trial court to provide an interpreter or interpret the proceedings of the referred days to the Appellant occasioned a miscarriage of justice. For what I have said above, I hold that Issue 4 has no substance. I accordingly

resolve it in favour of the Respondent.

However, from my resolutions of issues 2 and 3, I hold that the failure of the prosecution to prove the guilt of the accused person beyond reasonable doubt and the fact that Exhibit B alone cannot in the circumstances of this case sustain the Appellant?s conviction and sentence; the accused is entitled to an order of discharge and acquittal. See: ONWE V. STATE (2017) LPELR ? 42589 (SC); JUA V. THE STATE (2010) 4 NWLR (PT. 1184) 217 SC.

The appeal therefore succeeds in terms of my resolutions on issues 2 and 3; and is for the reasons adduced therein allowed. I quash the conviction and sentence of the Appellant by the High Court of Yobe State delivered on 14th February, 2017 in Case No: YBS/DT/HC/28C/2008. In its place I enter the order of discharge and acquittal of the Appellant.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Uchechukwu Onyemenam, JCA. His Lordship has ably considered and resolved the issues in contention in the appeal. I agree with the reasoning and

abide by the conclusion reached therein.

BOLOUKUROMO MOSES UGO, J.C.A.: I had a preview of the lead judgment of my learned brother UCHECHUKWU ONYEMENAM, J.C.A., and I am in agreement with him that the inordinate lapse of time between taking of evidence in the charge, the adoption of addresses and the judgment of the trial Court in this case was such that it cannot be said with any degree of confidence that the trial judge did not lose his advantage of seeing witnesses testify and that appellant had a fair trial/hearing. At any rate, my learned brother has in his very meticulous review of the evidence shown that that inordinate lapse of time actually affected the trial judge’s appreciation of the evidence of the prosecution who had the burden to prove its case against the appellant beyond reasonable doubt. That threshold of proof beyond reasonable doubt, I also agree with my learned brother, the prosecution did not meet and the trial judge wrong in holding otherwise. In the event, I also allow the appeal, set aside the conviction of the appellant and in its place enter an order discharging and acquitting him of the offence of armed robbery

for which the appellant was charged.

Appearances:

A. U. THEOPHILUSFor Appellant(s)

U. ISMAILA (CSC MOJ YOBE STATE)For Respondent(s)

Appearances

A. U. THEOPHILUSFor Appellant

AND

U. ISMAILA (CSC MOJ YOBE STATE)For Respondent

LawCare Nigeria

USMAN GARBA v. THE STATE (2019)

general

YOU MAY HAVE MISSED

UNDERSTANDING CONTRACT LAW FOR BUSINESS TRANSACTIONS IN NIGERIA

Protecting Minority Shareholders in a Nigerian Company

Agency and Distribution Agreements in Nigeria: What You Need to Know

Franchising Your Business in Nigeria: Key Legal Considerations

general

Related Story

YOU MAY HAVE MISSED