Chidi Edwin V. The State (2019)

LAWGLOBAL HUB Lead Judgment Report

IBRAHIM TANKO MUHAMMAD, J.S.C.

The charge against the appellant as accused person at the High Court of Justice, Ondo State, holden at Akure (the trial Court), was murder, contrary to Section 319 of the Criminal Code (Cap. 30, Vol. II, Laws of Ondo State of Nigeria) 1978. The appellant was alleged to have, on or about the 28th of April, 2011, at Wasimi Via Bolorunduro, murdered one Happiness Ndubueze, by striking her with matchet. The appellant pleaded not guilty and the case went into full hearing. At the end of hearing, the learned trial judge found that the prosecution proved beyond reasonable doubt, the guilt of the appellant. The learned trial judge convicted and sentenced the appellant to death by hanging.

Dissatisfied by the trial Court’s judgment, the appellant appealed to the Court of Appeal, Akure (Court below). The Court below found no merit in the appeal and it dismissed same.

The appellant proceeded to this Court on further appeal that the decision of the lower Court was in the circumstance, unwarranted and an error in law.

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In this Court, the parties filed and exchanged briefs of arguments as required by this Court’s Rules.

Learned counsel for the appellant formulated the following two issues for the determination of the appeal:

1. “Whether the lower Court was right in affirming the judgment of the trial Court when it failed to properly evaluate the evidence led and defence put up by the appellant before reaching its decision of convicting the appellant of the offence of murder and thereafter sentenced him to death by hanging (Grounds 1, 2 and 3 of the Notice of Appeal).
2. Whether the lower Court was right in affirming the judgment of the trial Court when it failed to accord the appellant his right to fair hearing, and proceeded to sentence the appellant to death after conviction without affording him the right of Allocutus. (Ground 4 of the Notice of Appeal).”

In his amended respondent’s brief of argument, learned counsel for the respondent, equally, set out two issues for determination. They are as follows:

1. “Whether or not the lower Court rightly affirmed the judgment of the trial Court in holding that the learned trial judge in his judgment properly evaluated the evidence led and defence put up by the

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appellant before reaching his decision convicting the appellant for the offence of murder and thereafter sentencing him to death by hanging.

2. Whether or not the lower Court rightly affirmed the judgment of the trial Court in holding that the appellant’s right to fair hearing was not contravened and that the trial Court was right in proceeding to sentence the appellant to death after conviction without affording him the right of allocutus.”

I adopt appellant’s issues in considering this appeal.

The 1st issue by the appellant is on evaluation of evidence by the trial Court. Learned counsel submitted that the lower Court failed to consider the explanation and narration made by the appellant at the Police Station where defence of alibi was timeously raised in his statement. One Mr. Babatunde who gave the appellant the Cocoa Farm to brush (Afum Farm) for him at the time the incident occurred, was neither investigated nor called upon to testify as to the truthfulness of the defence of alibi raised by the appellant. Sowemimo v. The State (2004) NQLR Vol. 28, 14 at page 34 was cited in support.

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The appellant showed in his statement how he got involved in any available menial jobs like selling Yoghurt, engaging in farming activities with which he was engaged with on the day of the incident. Learned counsel argued that it was inconceivable for the appellant to be in two places at a time; on a farm given to him by Babatunde (Afum Farm) to brush and be at the same time in the bush. The police never investigated or faulted these explanations or alibi, which is tantamount to admission on its part. Learned counsel cited two cardinal principles of the law that (a) a Court must consider all defences raised by the accused, no matter how stupid or unreasonable and (b) no claim of alibi should be disregarded. Learned counsel cited in support the cases of Bolanle v. The State (2010) NCC Vol.5, at pages 1 & 10; Udoebre v. The State (2006) NSCQLR, Vol.6 page 755 at p.766. The explanation of alibi made by the appellant casts whole world of doubt on the respondent and it ought to have raised doubt in the mind of the lower Court which ought to have been resolved in favour of the appellant, resulting in his acquittal. Onuchukwu v. The State (1998) 4 NWLR (Pt. 547) 576 at 592; Ajose v. State (2002) 7 NWLR (Pt. 766) 302 at 319 D – E, were cited.

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Learned counsel for the appellant submits further that the trial Court relied on oral evidence of the appellant to convict him and failed to consider the first in time of the statements made at the police station where the defence of alibi was timeously raised and this would lead to miscarriage of justice. PW2 gave evidence that the appellant was brought to the station with sharp cutlass but the trial Court failed to consider that a person returning from the farm where he had worked would definitely be holding the cutlass with which he worked. Learned counsel urged this Court to hold on issue No.1 on the defence of alibi.

Issue No. 2 is on whether the Court below was right when it affirmed the judgment of the trial Court when it failed to accord the appellant right to fair hearing and the right to allocutus.

The submissions of learned counsel for the appellant on issue 2, are that appellant was not asked, before conviction, if he had anything to say and that the trial Court proceeded to sentence him to death by hanging perfunctorily. Learned counsel submitted that the appellant was not allowed allocutus.

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Learned counsel argued further, that if the appellant was allowed allocutus. Counsel to the appellant would have had the opportunity of drawing the learned judge’s attention to the record of the appellant in pleading for a lighter sentence for the appellant. The right to allocutus being statutory is provided for in Section 247 of the Criminal Code Law which is similar to Section 247 of the Criminal Procedure Act, Cap. C41, LFN, 2004. Learned counsel argued that the right is constitutional, Section 36 (6)(b) of the Constitution and failure of the trial Court to accord the appellant that opportunity is a deprivation of vital facility to put forward his case which is tantamount to flagrant violation of his right to fair hearing. Learned counsel cited in support, the cases of Ogboh v. FRN, NSCQLR Vol. 10 (2002) 498 at pp. 509 – 511; Ndukauba v. Kolomo, NSQLR Vol. 21 (2005) 16 at p.36, among others.

He urged this Court to set aside the judgment of the Court below by resolving this issue in favour of the appellant.

In his amended brief of argument, learned counsel for the respondent, Mr. Nylander, who formulated two issues, which are similar to the issues

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formulated by the appellant, submitted on issue one that the submission of the appellant with regard to this issue is misplaced, misdirected and legally unfounded as the appellant has failed to disclose how the alleged unproven miscarriage of justice was occasioned on the appellant. He stated that by the nature and character of the standard of proof of alibi, same does not require proof beyond reasonable doubt but on the balance of probabilities. He referred to the case of Odu v. State (2001) 10 NWLR (Pt. 722) 668. Learned counsel submitted further that it was the duty of the defendant to call Fesi Babatunde to corroborate his alleged alibi and not the duty of the prosecution as the burden of proof of alibi is on the accused person. He referred to the case of Tanko v. State (2008) 16 NWLR (Pt.1114) 591; Ayan v. State (2013) 15 NWLR (Pt.1376) 34.

Learned counsel for the respondent submitted further that in this case, the testimony of the prosecution witnesses and the evidence given by the appellant himself has specifically and unequivocally pinned down the accused person to the scene of crime and as such, failure of the police to investigate the alibi of the

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appellant will not result in the acquittal of the accused and that defence must fail as it cannot avail the appellant. He supported this submission with the case of Ntam v. State (2003) 11 NWLR (Pt.830) 142. He urged the Court to resolve this issue against the appellant and in favour of the respondent.

On the second issue (issue two), the learned counsel for the respondent submitted that nowhere in Section 247 of the Criminal Procedure Law of Ondo State, 2006, which governs the making of allocutus in a criminal trial, is allocutus made mandatory nor its absence made to invalidate a proceeding. And, that the omission of the registrar to ask an accused to make allocutus or his being so asked by the judge or magistrate, instead of the registrar, shall have no effect on the validity of the proceedings. Learned counsel submitted that the plea of allocutus could not have availed the appellant as held by the lower Court which he urged this Court to affirm as it is no sufficient ground to upturn the decision of the trial Court. He submitted further that any explanation by way of allocutus, if accepted, can only go to mitigate a sentence and cannot avail the

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accused a defence to the charge. Further, allocutus does not constitute a fundamental right guaranteed under the Nigerian Constitution and such defence cannot avail a person already convicted for an offence with a mandatory statutory sentence as a fundamental right.

Learned counsel urged this Court to affirm the decision of the lower Court and to resolve this issue in favour of the respondent and against the appellant.

My Lords, the first issue by the appellant is on assessment or evaluation of evidence by the trial Court which appellant alleged it failed to do and inspite of that, the Court below affirmed the trial Court’s decision It is glaringly clear from the Record of Appeal (page 152) where the Court below held, inter alia:

“In evaluating the evidence of the prosecution’s witnesses and that of the accused person, the learned trial judge was able to consider the defence of alibi put up by the accused and made it clear in his judgment on page 60 of the record… the spirited efforts by the counsel for the appellant to impeach those findings were exercises in futility. It is obvious from the above excerpts, that the lower Court believed and

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accepted the evidence of PW1 fixing the appellant at the scene of crime and the oral evidence of the accused person/appellant before the Court fixing himself at the scene of the crime. The accused person admitted in his oral evidence before the Court that the incident occurred at Wasimi Village and he was taken to the scene of crime by the PW2, thereby fixing himself at the locus criminis. These findings are unimpeachable. In my view, the learned trial Court carefully considered and evaluated the evidence in the case and has come to the correct decision that the defence of alibi set up by the accused person has been demolished.” (underlining for emphasis)

I think, the role of a trial Court is not only to take evidence and watch the demeanour of witnesses, it has to primarily and fundamentally assess or evaluate the evidence so placed before it. This Court has repeatedly, stated the correct position of the law on evaluation of evidence by trial Courts that before reaching a conclusion, the learned trial judge is required by practice to set up an imaginary scale wherein he places the evidence adduced by the plaintiff or prosecution, as the case may be, on

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one side of the scale and equally places the evidence adduced by the defendant/accused, as the case may be, on the other side of the scale and weigh both together to consider the probative value in determining where the imaginary scale tilts and preponderates. See: Mogaji v. Odofin (1978) 4 SC 91 at 98; Sanusi v. Ameyogun (1992) 4 NWLR (Pt.237) 527.

Thus, the ascription of probative value to the evidence of each witness is a matter solely for the trial Court and it is not the business of the appeal Court to substitute its own views of undisputed facts for views of the trial Court. That was why the Court below found that the learned trial judge carefully considered and evaluated the evidence in the case and arrived at correct decision. I find it difficult to fault the decision taken by the Court below on the assessment or evaluation of evidence placed before the trial Court by the parties. This issue is thus, determined against the appellant and in favour of the respondent.

Appellant’s issue No.2 is that the appellant was not afforded the right of allocutus by the trial Court and went ahead to convict and sentence him to death and it was wrong of the Court below to have affirmed the conviction and sentence.

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My noble Lords may wish to recall that this Court, has defined allocutus in many cases, the most recent of which is the case of Lucky v. The State (2016) LPELR 40541 where it was held that allocutus is a plea in mitigation of the punishment richly deserved by appellant for the offence with which he was charged and for which he was tried and found guilty and convicted accordingly.

Learned counsel for the appellant drew this Court’s attention to the provision of Section 247 of the Criminal Code Law of Ondo State, 2006, which is similar to Section 247 of the Criminal Procedure Act, Cap C.41 LFN, 2004 to say that allocutus is a statutory right and forms an integral part of hearing procedure in criminal trials and as part of the convict’s defence. He submitted that the right to allocutus is recognized by the Constitution in Section 36 (6) (b) which confers on a person charged with a criminal offence, a right to adequate facilities for the preparation of his defence and thus, allocutus is a facility for defence.

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But, permit me my Lords, to start by setting out the provision of Section 247 of the Criminal Procedure Act (supra):

247. Accused to be asked whether he has anything to say before sentence.

“If the Court convicts the accused person or if he pleads guilty, it shall be the duty of the registrar to ask the accused whether he has anything to say why sentence should not be passed on him according to law, but the omission of the registrar to ask him or his being so asked by the judge or magistrate instead of the registrar shall have no effect on the validity of the proceedings.” (underlining for emphasis).

Learned counsel for the respondent submitted that nowhere in Section 247 of the Criminal Procedure Law of Ondo State, 2006 (which corresponds with same Section in the CPA, Cap. C.41, LFN 2004) which governs the making of allocutus in a Criminal trial, mandatory nor its absence made to invalidate a proceeding. I cannot agree more and that is the correct position of the law. Allocutus is not a defence for the accused person neither is it necessary on a trial Court to invoke it. It is only desirable in consideration of factors that may influence the mitigation of heavy punishment to a lighter one.

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Thus, in this case, the failure of the trial Court to avail the appellant such an opportunity is not sufficient ground to upturn the trial Court’s decision. See the case of Ogbeide v. COP(1964) 2 All NLR 176; State v. Babangida (2013) LPELR 20590.

Allocutus is not a right in law. It is not a defence. Learned counsel for the appellant was in my view, overstretching the Constitutional law of fundamental right by attempting to interpret and classify allocutus a fundamental right under the Nigerian law of fair hearing. This issue lacks merit and it is hereby determined in favour of the respondent and against the appellant.

In conclusion, this appeal lacks merit. Further, there is placed before this Court, nothing to make me depart from the concurrent decisions of the two lower Courts. The appeal is accordingly dismissed. I affirm the lower Court’s decision.

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SC.63/2015