David Amadi V. Attorney-general Of Imo State (2017)
LAWGLOBAL HUB Lead Judgment Report
EJEMBI EKO, J.S.C.
On the charge No. HOW/ART/11/99 the Appellant and two others were tried for the offence of armed robbery contrary to Section 1(b) of the Robbery and Firearms (Special Provisions) Act Cap 398 LFN, 1990, before the High Court of Imo State presided by J.O.H Ukachukwu, J. The prosecution commenced evidence on 29th October, 1999. Before then the Appellant had on 31st August, 1999 pleaded not guilty to the charge amended at the instance of E.E. Ibe, Senior Legal Officer, prosecuting officer on behalf of the Attorney-General of Imo State. The charge, at page 20 of the Records, was substituted by leave of Court, as can be gleaned from page 31 of the Records. At the close of the prosecution’s case the Appellant testified as his sole defence witness, following the dismissal of the Appellant’s No Case submission on 27th April, 2004.
On 19th June, 2006 the Learned trial Judge, after hearing final addresses of the parties, adjourned the proceedings to 28th September, 2006 for judgment; which judgment was delivered on the said 28th September, 2006. The Appellant was convicted and sentenced for the offence of
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armed robbery. On 8th November, 2006 the Appellant lodged his appeal against his conviction and sentence to the Court below. The appeal was heard by the Court below sitting at Owerri. The Court below, in its unanimous judgment delivered on 18th May, 2012, dismissed the appeal of the Appellant and affirmed both the conviction and sentence by the trial High Court relating to the Appellant. This further appeal has arisen from the said decision of the Court of Appeal, Owerri dismissing the Appellant’s appeal.
On 17th November, 2016 this Court heard this appeal. The Appellant’s counsel and the Respondent’s are ad idem on the three issues formulated by the Appellants counsel for the determination of this appeal. The issues are:
“i. Whether a charge initiated and signed by an unidentified law officer is competent to activate the jurisdiction of the trial Court to entertain it.
ii. Whether the learned Justices of the Court of Appeal were right to have affirmed the conviction and sentence of the appellant by the trial Court for the offence of armed robbery on the basis that the eye witness account of the victim (PW1) was unchallenged,
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uncontradicted and was sufficiently credible to ground the conviction of the appellant (ground one of the appeal).
iii. Whether the prosecution proved beyond reasonable doubt the offence of armed robbery against the appellant as required by law (Grounds two and three of the appeal).
The Notice of Appeal, at pages 257-260 of the Records, has three (3) grounds of appeal. lssues 2 and 3, reproduced above, have been formulated from the 3 grounds of appeal. Now, the question: from which ground of appeal has issue 1 been formulated or arisen I can not see any. And it is crystal clear, ex facie issue 1, that the said issue 1 has not arisen from any ground(s) of appeal against the decision of the Court of Appeal, the Appellant is complaining against. It is now settled beyond question that any issue raised and argument advanced on an issue not arising from a ground of appeal is incompetent. See OKPALLA v. IBEME (1989) NWLR (pt.102) 208; OSINUPEBI v. SAIBU (1982) 7 SC. 104 at 110-111. Issues for determination of appeal are not, in appellate Courts, formulated from the clouds or nowhere. See IHEANACHO v. EJIOGU (1995)4 NWLR {pt.389) 324; PORT-HARCOURT
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CITY LG v. EKEOHA (2008) ALL FWLR (pt 422) 1174 at 1192. The law and practice in the appellate Courts, are now well settled that issues for determination are formulated from and on the basis of the grounds of appeal filed. An issue formulated must therefore not only relate to the ground(s). It must fall within the existing grounds(s) of appeal challenging the correctness of the judgment appealed. See MODUPE v. STATE (1988) 4 NWLR (pt.57) 131: UGO V. OBIEKWE (1989) 1 NWLR {pt.89) 566: AKINBINU v OSENI (1992) 1 NWLR (pt.215) 97; OSENI v. AKINBINU (1992) 23 NSCC (pt.1) 22; BAMGBOYE v. OLANREWAJU (1991) 4 NWLR (pt.184) 132 at 152; LABIYI v. ANRETIOLA (1992) 10 SCNJ 1. An issue raised in vacou or which has been raised and argued from no ground of appeal is not only Incompetent, it is completely irrelevant and extraneous. It is for this reason that this Court maintains the stance or policy that an issue raised or formulated from nowhere or no ground of appeal must certainly be discountenanced. See AKINBINU v. OSENI (supra)
The totality of all I have been saying, so far, is that issue 1, raised and argued by the parties, particularly the Appellant, being
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incompetent and irrelevant must be and it is hereby struck out and all arguments in relation thereto are discountenanced.
The main thrust of issue 2 is whether the evidence of the PW.1 as an eye witness, was unchallenged and uncontradicted, and therefore reliable and believable to have been acted upon, as the learned trial Judge did. The Court of Appeal had unanimously affirmed the conviction and sentence of the Appellant on the basis of the eye-witness account of the PW.1, which the trial Court found reliable and sufficiently credible to sustain the conviction of the Appellant. That Court further found that the evidence of PW.1 was corroborated by the evidence of the PW.2, even though there is nothing in law which obliged the trial Court to find further corroboration to the eye witness account of the PW.1 which had already fixed the Appellant with the crime”. Relying on OKORO v. STATE (1998) 14 NWLR (pt.584) 181 at 216; ADELUMOLA v. THE STATE (1988) 1 NWLR (pt.73) 683 at 691; ANTHONY IGBO v. THE STATE (1975) 1 ALL NLR (pt.2)70 at 75; ALI & ANOR. v. THE STATE (1988) NWLR (pt.68) 1 and EMINE v. THE STATE (1991) 7 NWLR (pt.204) 480; the Court of
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Appeal opined, correctly in law, that no law says that an accused person cannot be convicted on the clear and unimpeachable evidence of a single witness, and such evidence does not require corroboration. I agree entirely. The Appellants counsel also concedes this lucid position of the law.
Appellant, however argues that “the eye witness account of PW.1 was tainted with doubts which ought to have been resolved in favour of the appellant”. Counsel appears lo labour heavily under l some misconception in his argument; that even though in proof of the ingredients of crime, the prosecution is not obliged to call a host of witnesses, and that, however, where there are vital witnesses; the failure to call those vital witnesses could weaken the case of the prosecution as it could create reasonable doubt. ISA v. STATE (2010) 16 NWLR (pt.1218) – relied heavily for this robust submission, does not repudiate the age old principle that an accused can be convicted on a clear and unimpeachable evidence of a single witness, unless such witness or his evidence needs to be corroborated as a matter of law. The prosecution, where there is no requirement of corroboration as a
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matter of law, does not need to call a host of witnesses once the credible evidence of a single witness proves all the ingredients of the offence charged. There would only be need to call more witnesses whose evidence would sway the Court if, and only if, the available evidence does not to conclusively prove the ingredients of the offence charged.
The Appellant’s counsel had called in aid THE STATE v. AZEEZ & ORS (2008) 14 (pt.1108) 451; also reported elsewhere as (2008) 4 SC. 188; (2008) 3 FWLR 4567 SC as booster to his submission that if all the vital or material witnesses are not called by the prosecution the case is doomed to fail. I am afraid this does not represent the ratio decidendi of THE STATE v. AZEEZ (supra). The decision of this Court on this point, per M.D. Muhammad, JSC in the THE STATE v. AZEEZ (supra), is that in discharge of the burden of proving a crime beyond reasonable doubt placed by Section 138 (1) of the Evidence Act 1990 (now Section 135 (1) of the Evidence Act, (2011):
“it is the duty of the prosecution to see that it places before the trial Court all available relevant evidence. This may not mean that a whole host of
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witnesses must be called upon (on) the same point, but it does mean that if there is a vital point in issue and there is one witness whose evidence would settle it one way or the other, that witness ought to be called.”
The “Judge” of whose evidence establishes or proves that vital point is the prosecutor. The Court will not usurp that function of the prosecutor. All the Court, as the final arbiter, is interested in is whether the available evidence proves the vital point. – USUFU v. THE STATE (2007) 1 NWLR (pt.1020) 94 at 118 C-E Cited by the Appellant, which also held that although the prosecution need not call a host of witnesses on the same point, where there is a vital point in issue and there is a witness whose evidence will settle it one wav or the other that witness ought to be called, does no riot to the settled principle of law.
Notwithstanding the strenuous efforts expended on the argument that the evidence of PW.1 needed corroboration before it could be acted upon the Appellant’s counsel never once criticized the concurrent findings of fact by the Courts below that the evidence of PW.1 and PW.2, which the learned trial Judge had believed
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and acted upon, do not need any corroboration. This is contained in the opinion of Owoade, JCA at page 249 of the Record.
Where the two Courts below have made concurrent findings of fact, which has not been shown to be perverse in any respect, such findings must endure. This Court is loathe to interfere in such situation; particularly when the findings are supported by evidence in the printed record and the findings are not perverse. See OGOALA v. THE STATE (1991) 2 SCNJ 61; (1991) 2 NWLR (pt.175) 509; OGUNDIYAN v. THE STATE (1991) 4 SCNJ 44; (1991) 3 NWLR (pt.181) 519).
Appellant’s Learned counsel submits that the extra-judicial statement of the PW.1 made on 3rd May, 1998 does discredit his testimony particularly that at the earliest opportunity the PW.1 failed or refused to mention the names of his assailants. He, however, concedes that this previous statement of the PW.1 is not in evidence. lf the Appellant had desired to impeach the credit of PW.1 with the previous statement he would have followed the procedure and put in evidence the previous statement in writing. He must, under the Evidence Act, Section 199 of the 1990 (Now Section 232 of the
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Evidence Act 2011), draw the attention of the witness to his previous statement in writing and thereafter tender it in evidence for purposes of contradicting the witness. The previous statement in writing made by the PW.1 on 3rd May, 1998 is not in evidence. The Appellant, therefore, cannot smuggle the contents of that statement by oral evidence. The Court cannot also speculate on the content of a document not before it. The proofs of evidence, like in pleadings in civil proceeding, are themselves not evidence. The averments therein must be proved.
Appellant’s counsel, trying to wriggle out of the mess, submits on authority of AGBAREH v. NIMRA (2008) 2 NWLR (pt.1071) 308 at 411 – 412 and AGBO v. THE STATE (2006) ALL FWLR (pt.309) 1380 at 1409-410, that “a Court is entitled to look at a document or documents in its file including the record of appeal before the Court”. This principle does not entitle the Court to descend into the arena and scoop for vital evidence that would discredit or impugn the credit of a material witness for one party. Section 36(1) of the Constitution, 1999, as amended, enjoins every Court of law to be independent and impartial. On
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this note, it is my firm view that the failure of the Appellant to put in evidence the written statement of the PW.1 dated 3rd May, 1998 is fatal to their contention now that the said statement has the effect of discrediting, and had in fact discredited the PW.1. The case of UDOBERE v. THE STATE (2006) 6 SC 1 at 10, cited by the Appellant’s counsel is of no moment. It does not advance nor support their present stance. ln the UDOBERE case (supra) the extra-judicial statement of the PW.2, which discredited her evidence, was before the trial Court and in the admitted evidence. It is trite that the decision of a Court of law on any disputed point or fact must be on evidence legally before it. Accordingly, a fact neither in the body of the legal evidence nor forming part of the legally admitted evidence cannot be used to contradict any evidence validly before the Court. See THE STATE v. OGBUBUNJO (2001) FWLR (pt.37) 1097 at 1115 – 1116; (2001) 2 NWLR (pt.698) 576 at 598 – 599. It is not permissible for Courts of law to act on facts extraneous to the proceedings, which though may be relevant.
Appellant’s counsel, on the concurrent finding of fact that the
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evidence of the PW.1 had pinned and fixed the Appellant to the scene of crime, submits that the concurrent findings are perverse. He further submits that it is not enough, without proper evaluation, for the Courts to believe the PW.1 on this – relying on HAMZA v. KURE(2010) ALL FWLR (pt.539). 1070 at 1087. Learned Counsel submits further that when a decision is perverse, the appellate Court can intervene in the interest of justice and set it aside. That undoubtedly is the law. See Nepa v. OSOSANYA (2004) 1 SC (pt.1) 159 at 175; AGBOMEJI v. BAKARE (1998) 7 SC (pt.10) 10. It is however not enough for a party to assert that the judgment of a law Court which enjoys the presumption of regularity by dint of Section 150 Evidence Act, 1990. (now Section 168 of Evidence Act, 2011), is perverse. He must show how the decision is perverse. The basic rule is, he who asserts must prove.
The issue at the trial Court and at the Court of Appeal is whether the available evidence proved the offence of armed robbery that the Appellant was convicted and sentenced for. As submitted by the Respondent, all that the prosecution needed to succeed in this case is proof -<br< p=””
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that theft was committed by the Appellant of something;
ii. that in the course of the theft wrongful hurt or wrongful restraint was meted to the victims, owners of the thing stolen, by the accused person, and
iii. that the acts complained of were done in the process of committing theft or in order to commit theft and/or carry away the property by theft.”
See ABDULLAHI v. THE STATE (2008) 16 LCRN 96. In the concurrent findings of the two Courts below there was no doubt the Respondent had proved these ingredients of armed robbery for which the Appellant was convicted and sentenced with the evidence of PW.1, PW.2 and PW.3. There is nothing perverse about these findings of fact.lssue 2 is accordingly resolved against the Appellant.
The Appellant contends, under issue 3, that notwithstanding that the prosecution at the trial Court did not prove beyond reasonable doubt the offence of armed robbery against the Appellant, as the law requires them to, the conviction of the Appellant was affirmed by the Court below. The basis for this contention is that the PW 1s extra-judicial statement made on 3rd May, 1998 at the Police
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Station had discredited the witness (PW.1). The PW.1 was cross-examined and his reply on that statement is –
“l know I mentioned the name of the 1st accused (appellant) unless police did not write it down. The statement was read over to me after it was made. I signed the statement.”
Appellant’s Learned counsel submits that the failure of the PW.1, at the earliest opportunity, to mention the name of the Appellant to the police Officers and in the written statement he had made at the Police station has raised serious doubt whether the PW.1 ever mentioned the name of the Appellant on 3rd May, 1998. The extra-judicial written statement of the PW.1 forms part of the proofs of evidence, and it is at page 24 of the Records of Appeal. Counsel made similar submissions at the trial Court as can be seen at pages 129 and 130 of the Record. The statement was not tendered in evidence. The Appellant had the opportunity to have tendered it in evidence for the purpose of contradicting the PW.1 and thereby impeaching his credibility. They however never did so.
The law. as re-stated by Madarikan, JSC in OSENI v. ATTORNEY-GENERAL SC. 202/1968 decided on 16th
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July, 1969, (see Digest of Supreme Court cases, Vol. 10 at p. 166) where there is a conflict between the written statement made to the police by a witness and his oral evidence in Court, the trial Judge ought to resolve such conflict before deciding whether to accept the witness’s evidence or not. To do that resolution between the extra-judicial statement and the oral evidence both have to be legal evidence before the Court. In other words by dint of Section 209 of Evidence Act, 1990 in pari materia with Section 199 Evidence Act. 2004 (now Section 232 of the Evidence Act, 2011) the said previous statement in writing has to be, or must be, produced for the trial Courts inspection, before the Court may thereupon make use of it for the purposes of the trial”.
In all the cases where the previous written statement of the witness, made extra-judicially by him, was held to be a contradiction of his testimony in Court the previous statement was produced for inspection of the trial Court and was duly admitted in evidence as exhibit. ln OLADEJO v. THE STATE (1987) 4 SC 96; (1987) NWLR (pt.61) 419 the extra-judicial statements of the witness which
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contradicted his testimony on oath were produced and admitted in evidence as Exhibits B and D. In EMOGA v. THE STATE (1997) 1 NWLR (pt.483) 615, the Appellant’s extra judicial statement, Exhibit A, was produced and admitted in evidence in the course of his being cross-examined to show his inconsistency. In OBIRl v. THE STATE (1997) 7 NWLR (pt.513) 352 the Supreme Court on the application of the appellant allowed the extra-judicial statement of the PW.1, which was very vital for the resolution of a material issue as to whether the PW.1 was an eye witness of the alleged murder, was admitted in evidence as Exhibit SC.1. It was found that Exhibit SC.1 violently and substantially contradicted the testimony of the PW.1. lt was held that the PW.1 was an unreliable witness, whose evidence could not be relied upon for the conviction and sentence of the appellant. In the circumstance where both sets of evidence from the PW.1 were mutually contradictory in materia particula it was not safe for the Court to pick and choose which of them was reliable and which was the unreliable version of the incidence. See: BOY MUKA v. THE STATE (1976) 10 SC. 305. The law is settled that
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before the credit of a witness is to be impeached by his previous statement, such previous statement must be produced and put in evidence as an exhibit after the attention of the witness is drawn to it. See SUNDAY v. THE STATE (2010) 18 NWLR (pt. 1224) 223 at 241.
Proofs of evidence, or any portions thereof, can only be used to contradict or impeach the credibility of a witness after due compliance with the Procedure set out in Section 209 of the Evidence Act, 2004, in pari materia with Sections 199 and 232 respectively of the Evidence Acts 1990 and 2011, which provides:
“A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question in the suit or proceeding in which he is cross-examined without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.”
It is only by this procedure that the credibility of a witness whose previous statement in writing, which forms part of the
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proofs of evidence, contradicts his testimony in Court can be impeached. See SAMUEL THEOPHILUS v. THE STATE (1996) 1 NWLR (pt.423) 139. A Court of law, not being a Don Quixote, can not in the course of doing justice, go all out on its own to scoop from the proofs of evidence, facts which discredit a witness called by a party. The proofs of evidence are not themselves pieces of judicial or legal evidence on which the Court of law acts on. The proofs of evidence contain the statements or abridged statements made extra judicially to the police or the investigator by the complainant, witnesses and/or the accused person which prima facie sustain the charge or the allegation against the accused person. For purposes of audi alteram partem, proofs of evidence give the accused person notice of the case he is going to meet at the trial. See: S.T. HON: THE LAW OF EVIDENCE IN NIGERIA and also the Court of Appeal adoption of the definition in IBEKWE v. FRN (2004) ALL FWLR (pt.213) 1780: GODWIN PIUS v. THE STATE (2012) LPELR- 9304 – CA
The proofs of evidence, contrary to the submission of Appellant’s Learned counsel, are not themselves judicial or legal evidence.
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When any portion of the proofs or the previous statement of a witness is tendered in evidence pursuant to Section 209 of the Evidence Act, 2004 (in pari materia with Section 232 of the 2011 Evidence Act), the purpose is merely to contradict or impeach the credibility of the witness being cross-examined, and not that it is evidence of the truth of the matters asserted in them. See SAMUEL THEOPHILUS v. THE STATE (supra).
In any case, the issue being over flogged here by the Appellant’s Learned counsel is one of the credibility of the PW.1 . This Court has stated in UDOFIA v. DPP – SC. 64/1984 of 7th December, 1984 (see Digest of Supreme Court Cases Vol. 10 Pp.566-567) that issues of credibility should be left to the Judge who saw, heard and believed the witness and that generally an appellate Court is bound by the findings of the trial Court especially when the findings relate to credibility of witnesses.
The flaw in the stance of the Appellants Learned counsel before us is the fact that the previous statement of the PW.1, in writing dated 3rd May, 1998 which he relies on to make these submissions on the credibility of the PW.1 viz-a-viz his oral
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evidence in Court, is not any piece of evidence in law that the Court can act on. It is left inchoate in the proofs of evidence. It is for this reason that Owoade, JCA, who read the Lead Judgment stated at page 252 of the Record that “proof of evidence is to criminal trials what pleadings (are) to civil trial”. The pleadings themselves are not evidence but averments which must be proved by evidence. I find no criticism by the Appellant against this valid statement of law. In adjudication sentiments command no place. Accordingly in adjudication what is material and relevant is legal evidence in the proceedings of the Court and not facts that are completely extraneous.
Facts not disputed are taken as established. At page 252 of the Records the Court of Appeal finds specifically that “the statement of PW.1 at page 38 of the records that he mentioned the name of the Appellant in his statement to the police at Imo on 3rd May, 1998, at the police station except the police did not write it down was positive and consistent reaction to cross-reaction of PW.1”, and, “that, (the) statement did not indicate any inconsistency with either his evidence-in-chief or his
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previous statement on the issue”. This specific finding of fact has not been appealed or attacked. The law is trite that a conclusion or finding not appealed is deemed correct and acceptable to all the parties. See BIARIKO v. EDEH-OGWUILE (2001) 4 SC (pt.2) 96; IYOHO v. EFFIONG (2007) 11 NWLR (pt.1044) 31; USMAN v. GARKE (2003) FWLR (pt.177) 815. Apart from the general attack on the credibility of PW.1, on the basis of the PW.1’s extra-judicial statement of 3rd May, 1998, there was no specific attack or criticism of the above finding of fact by the Court of Appeal by the Appellant’s counsel. The stance of Owoade, JCA, as I earlier pointed out, is consistent with the dictum of Coker, JSC, and Karibi-Whyte, JSC, in AJAO v. THE STATE (1984) NSCC. 783 at pages 785 and 789 respectively to the effect that a witness, who at the trial gives details of the contents of his statement to the Police, cannot be said to have given inconsistent evidence.
The law is that when there appears to be some inconsistency between the oral evidence of the witness and his previous statement in writing, the witness is required to explain the Inconsistency in his evidence. See
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AGWU v. THE STATE (1965) NMLR 18 at 20. The PW.1 at page 38 made the required explanation; and the Court of Appeal affirmed it. The PW.1 at the trial gave explanation for what was not in his extra-judicial statement. The trial Court found his testimony credible, so also the intermediate Court. The issue now is one of credibility which the trial Court is the best and the undisputed Judge. See NASAMU v. THE STATE (1979) 6 – 9 SC 153 at 181. I find no merit or substance in this third issue argued for the Appellant by his Counsel.
This appeal has no substance and it is hereby dismissed in its entirety by me. The conviction and sentence of the Appellant contained in the judgment of the trial Court in the case No. HOW/ART/1199 delivered on 28th September, 2006, and the judgment of the Court of Appeal, Owerri Division in the appeal No. CA/PH/417A/2007 delivered on 18th May, 2012 affirming the said conviction and sentence of the Appellant are hereby affirmed by me.
Appeal dismissed.
SC.515/2012
