Darlington Eze Vs. Federal Republic Of Nigeria (2017)
LAWGLOBAL HUB Lead Judgment Report
SIDI DAUDA BAGE, J.S.C.
This Appeal is against the judgment of Court of Appeal, Abuja Division (the Court below), delivered on the 7th day of June 2013, upholding the Judgment of the High Court of Federal Capital territory, Abuja (the trial Court). The trial Court in its Judgment sentenced the Appellant to life imprisonment under Section 5 of the Robbery and Firearms Act, on Count 1. And in respect of Count 2 the trial Court sentenced the Appellant to death by hanging. Dissatisfied with the Judgment of the two Courts below, the Appellant has now appealed to this Court for a reversal of the decision of the Court below. The judgment of the Trial Court and the Court below are contained on pages 81 to 100 and 204-250 of the Record of Appeal respectively.
The brief facts of the case are as follows: The Appellant was charged on the 20/11/2005 with a two count charge of conspiracy and Armed Robbery. On the 23/1/2006, the prosecution commenced its case, with PW.1, PW.2, PW.3, PW.4, PW.5 and PW.6. All the witnesses were called by the prosecution and cross-examined. On the 8/3/2007, the Appellant made a no
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case submission but was overruled by the trial Court on the 3/12/2007. Written addresses were filed, exchanged and adopted. The Trial Court delivered its Judgment on the 10th day of February, 2009. The Appellant appealed to the Court below. Briefs of argument were filed and exchanged accordingly. Judgment of the Court below was delivered on the 7th day of June, 2013, affirming trial Court’s Judgment. Dissatisfied with the said Judgment of the Court below, the Appellant, appealed to this Court. The Notice of Appeal is contained on page 251 of the Record of Appeal. The said Notice of Appeal filed on the 24/6/2013, contains five (5) Grounds of Appeal. From the said five grounds of Appeal, the Appellant has formulated the following two (2) issues for the determination of this appeal to wit:
“(1) Whether the Appellant was accorded fair hearing at the Trial Court when particularly there was a failure to comply with Section 186 of the Criminal Procedure Code when the Prosecution opened her case on the 23rd day of January 2006 Grounds 2, 4 and 6.
(2) Whether the case against the Appellant was proved beyond reasonable doubt. (The Appellant’s brief was settled by
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A.A. Ibrahim Esq. and filed on the 31/7/2013).”
The Amended Respondent’s Brief of Argument, settled by Enewa (Mrs.) Rita – Chris Garuba of Counsel, was filed on the 11/10/2016, but deemed as properly filed on the 19/1/2017. The learned Counsel for the Respondent formulated the following two (2) issues for the determination of this appeal to wit:-
“(1) Whether the Court below was (sic) right in affirming the conviction and sentence of the Appellant on the ground that he was accorded fair hearing and there was no miscarriage of justice in the course of his trial (Grounds 2, 4 and 5).
(2) Whether the Court below was right in holding that the Respondent led credible evidence in proof of the charge against the Appellant (Grounds 1 and 3).”
A close look at the two sets of issues shows clearly that learned Counsel for the parties appear to be ad idem on the issues. They asked the same questions. I shall accordingly rely on the appellant’s issues in considering this appeal. Issues 1 and 2, of the Appellants brief shall be considered together because of their interrelationship. For clarity, issue one (1) is to wit:-
“(1) Whether the
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Appellant was accorded fair hearing at the Trial Court when particularly there was a failure to comply with Section 186 of the Criminal Procedure Code when the prosecution opened her case on the 23rd day of January 2006 (Grounds 2, 4 and 5) and
(2) Whether the case against the Appellant was proved beyond reasonable doubt (Grounds 1 and 3).”
Learned Counsel for the Appellant observed that, every accused person in a criminal trial for an offence that attracts capital punishment must be represented by a Legal Practitioner of his choice or assigned a Counsel by the Court. Learned Counsel considered the provisions of Section 186 of the Criminal Procedure Code (CPC). The Appellant was charged, convicted and sentenced at the Trial Court and the Court of Appeal upheld the conviction and sentence in the face of the breach of the provisions of Section 186 of the Criminal Procedure Code (CPC). The word shall etymologically denotes a command tone. See OKOH VS THE STATE (2009) All FWLR (Pt. 453) 1404-1405 E-A; EHIKIOYA VS COMMISSIONER OF POLICE (1992) 4 NWLR (Pt. 233) 72-73 paragraphs C-A.
The failure of the trial Court to adjourn the
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proceedings of 23rd January 2006, taking into cognizance the nature and punishment of the offence vis-a-vis the provision of Section 186 of the Criminal Procedure Code, and Section 36(6)(b) of the Constitution of the Federal Republic of Nigeria, 1999, was tantamount to depriving the accused person his fundamental right of fair hearing and right to be represented by his counsel. The failure of the Trial Court to issue hearing notice against the proceedings of 23rd day of January 2006 to enable the Appellant exercise his right under Section 36(6)(b) was a fundamental error which affects the validity and goes to the root of the proceedings.
The proceedings of 22/11/2005 shows Counsel was in Court, the matter adjourned to 1/12/2005. On 1/12/2005 there was no indication as to whether there was a hearing notice. Ruling was delivered on the 14/12/2005, there was no indication that the accused was in Court or his Counsel. This Court has in a plethora of authorities emphasized that fair hearing as entrenched in the Constitution is based on determining or testing the Constitutionality of a trial in terms of procedure. See ARIORI VS ELEMO (1983) 1 SCNLR 2; DANIEL TAYOR
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TRANS ENT. LTD VS ALHAJI BUSARI & ANOR (2005) FWLR (PT. 286) 1689 AT 1707, OGBA VS THE STATE (1992) NWLR (PT 222) 164 AT 186 paragraph C-D; UDO VS THE STATE (1988) 1 NSCC Vol. 19 page 1163.
Learned Counsel for Appellant submitted further that failure by the Court below to nullify the proceedings or at least call for a retrial to ensure the protection of the Appellant’s Constitutional right to fair hearing was fatal to the proceeding. See GBADAMOSI VS DAIRO (2007) 1 SC (Pt 11) 151 at 172, MOHAMMED VS THE STATE (2013) All FWLR (Pt 672) 167 at 1683.
On proof beyond reasonable doubt, Learned Appellants Counsel submitted that in a Criminal matter the burden of proof is on the prosecution and the prosecution is to prove the case beyond reasonable doubt. See UDOSEN VS THE STATE (2007) All FWLR (Pt.356) 669 at 673. OSENI VS THE STATE (2012) SC (Pt 11) 52 at 87. BOZIN VS THE STATE (1985) 2 NWLR (Pt.8) 465, ISIBOR VS STATE (2007) NWLR (Pt.1049) 614 at 635.
On the ingredients to establish the offence of armed robbery, learned Counsel submitted that the Court must look at the followings:-
“(1) That there was a robbery or series of
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robberies;
(2) That each robbery was an armed robbery;
(3) That the accused was one of those who took part in the armed robbery.”
On stealing, constituting the offence of armed robbery to convert to one’s use a movable property. See ARUNA VS THE STATE (1990) 6 NWLR (Pt 155) 125. P.W.1, PW.2 and PW.4 never established that the Appellant caused any wrongful gain to himself: The mere testimonies of prosecution witnesses that PW.1’s car was snatched at gun point without tendering any document to show that the car in question existed and was a property of PW.1 is enough to create doubt in the mind of any reasonable man. Also the failure to produce the gun which PW.1 claimed was used in the course of the robbery is a fundamental error. It is settled law that for the successful proof of any crime all the ingredient(s) of the offence must be established. Where any of the elements or ingredient(s) of an offence is not proved beyond reasonable doubt the prosecutions case must fail. See OMONGA VS THE STATE (2006) 14 NWLR (Pt. 1000) 552 at 557 paragraphs F-G, ISIBOR VS THE STATE (2001) FWLR (Pt 78) 1100 paragraphs B-F.
On Exhibits A1 and A2,
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Learned Counsel submitted that the trial Judge was in error when he observed that they are live cartridges, while Exhibits B and D are statement of the accused. As to what gun qualifies as an offensive weapon. See OKOH VS THE STATE (2009) All FWLR (Pt. 453) at 1399 paragraphs F-G, DIEBE VS THE STATE (2005) All FWLR (Pt.259) 1995, OLAYINKA VS THE STATE (2007) All FWLR (Pt.373) 163 at 173-174. The law is settled that, it is the use of an object and manner it was made use of that qualifies it as an offensive weapon. Again, no ballistician was called to confirm what the objects are. The statement of PW.5 is quite instructive on this fact. Also the evidence of PW.4. It is therefore erroneous for the trial Court to hold or assume that it is a live cartridges. See IBRAHIM VS THE STATE (1991) 5 SC 71.
On proof beyond reasonable doubt, learned Counsel submitted, it is the duty of the Respondent at the trial Court to prove the guilt of the accused beyond reasonable doubt, the Court below therefore erred in upholding the decision of the trial Court in the face of several contradictions. As to what amounts to material contradiction depends on the
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circumstances of each case. See ONUBOGU VS THE STATE (1974) 9 SC. 1, MUSA VS THE STATE (2007) 11 NWLR (Pt.1045) 202 at page 2, 4 paragraphs E-F paragraph B. The failure of the prosecution to explain the inconsistencies on the number of bullets or cartridges that were recovered goes to the root of the prosecution. The decision of the Court below that inconsistencies are not substantial should not be allowed to stand. The confessional statement of appellant should not be allowed to stand in the face of the evidence of DW.1 that the confession was forced out of him after he had been shot in two places on the left leg. See page 33 of the record. That piece of evidence has been further collaborated by the evidence of DW 2 at pages 76-77 of the record. The defence has explained what led to Exhibit B. See AIGBADON VS THE STATE (2000) SC (Pt.1) 3. Learned counsel for appellant urged the Court to resolve the two (2) issues in favour of the accused person taking into consideration the whole circumstance of this case.
Responding, learned Counsel for the respondent observed that, at the time the trial commenced when the PW.1 and PW.2 testified, the Appellant was not
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represented by a counsel following the absence of his counsel. However, the Appellant opted and did not object to the commencement of the trial and cross-examination of the witnesses. See pages 46-49 of the printed records. The learned Counsel for the accused/appellant had at an earlier date moved the bail application of the accused so the Counsel was deemed to know the commencement date of the trial. But he rather chose to be absent from Court. See FIRST ALSTATE SECURITY LTD VS ADESOYE HOLDINGS LIMITED (2013) 16 NWLR (Pt. 1381) 470 at 502 paragraphs E-G, OGUNSANYA VS THE STATE (2011) 12 NWLR (Pt 1261) 401 at 429 paragraphs B-E, 432 paragraphs G-H, 435 paragraph B, 437 paragraph c, EFFIOM VS THE STATE (1995) 1 NWLR (Pt.373) 507, UGURU VS THE STATE (2002) 9 NWLR (Pt.771) 90, CHUKWUMA VS FEDERAL REPUBLIC OF NIGERIA (2011) 13 NWLR (Pt. 1264) 391 at 425 paragraphs G-H, AZEEZ VS THE STATE (1986) 2 NWLR (Pt 23) 541, ABOGEDE VS THE STATE (1995) 1 NWLR (Pt. 372) 473 at 483, ANTHONY IGBO VS THE STATE (1975) 9-11 SC. 129, PAW NGORAH AND KWESI GYAN VS THE KING (1951) XII WACA 256. The testimonies given before the trial Court in the absence of the Appellants defence
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counsel did not substantially occasion any miscarriage of justice, argued learned counsel for respondent.
The learned Counsel for the Respondent further submitted that, for the offences of Criminal conspiracy and armed robbery, contrary to Section 5 and 1(2)(b) of the Robbery and Firearms (Special Provisions) Act Cap 398 Laws of the Federation 1990, the Respondent presented six (6) witnesses PW.1-PW.6 and tendered four (4) Exhibits including the confessional statement of the Appellant which was admitted in Evidence without objection. The Appellant testified in his defence and tendered one (1) Exhibit. From the evidence on record, the Respondent was able to prove beyond reasonable doubt the ingredients of the offence of conspiracy against the Appellant. The Appellant and two others carried out the robbery, it follows that there was an agreement between them to commit the offence, and he participated in the commission of the offence. There was evidence that there was robbery, that it was armed robbery, because the robbers were armed with a gun and that the Appellant took part in the robbery. The Evidence of PW.1-PW.4 were unchallenged and uncontradicted
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neither were they discredited under cross-examination. Their evidence was in tandem with the evidence of the Appellant as regards his presence and arrest at the scene of the crime. Exhibits A1 and A2 will qualify as firearm and offensive weapons, if the live cartridges are found to be linked to a gun, they become offensive weapons. Also a confessional statement made under caution, direct and positive is sufficient to warrant a conviction. This Court should affirm the judgment of the Court below.
The circumstance of the present appeal is quite straight, and presents no complexity. The proof of evidence before the trial Court, listed six (6) witnesses called by the prosecution to establish its case beyond reasonable doubt against the accused person/appellant. Five (5) of those witnesses were eye witnesses to the Commission of the offence for which the accused person/appellant stands charged for. The appellant was charged on two counts.
They read:
COUNT 1:
“That you Darlington Eze ‘M’ and Tochukwu ‘M’ now at large all of Tasha Gwagwa, Abuja, on or about the 15/6/2005 at 20:15 hrs at Block 25 Mambola Street, Wuse Zone 2, Abuja within the Abuja
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Division did conspire together to commit Felony to wit Armed robbery and you thereby committed an offence contrary to Section 5 of the Robbery and Firearms (Special Provision) Act Cap 398 LFN 1990.”
COUNT 2:
“That you Darlington Eze ‘M’ 30 years, Kingsley ‘M’ and Tochukwu ‘M’ now at large on or about the 15/06/2005 at about 20:15 hrs at Block 25 Mambola Street, Wuse Zone 2, Abuja within the Abuja Judicial Division while Armed with a gun and other offensive weapon robbed one Hajiya Hajara of No.8 Mississippi Road, Maitama of her NISSAN MAXIMA METHALIC GOLD with Registration No. AT 586 BWR valued N1.2M.
You thereby committed an offence contrary to Section 1(2) of the Robbery and Firearm Special Provision Act Cap 398 LFN 1990.”
To succeed the prosecution must prove beyond reasonable doubt that:-
“(a) There was a robbery or series of robberies;
(b) The robbery or each robbery was armed robbery and
(c) The accused was one of those who took part in the armed robbery. See BOZIN VS THE STATE (1985) 5 SC P.106. OKOSI VS ATTORNEY GENERAL BENDEL STATE, (1989) 2 SC (Pt.1) P.126. MARTINA VS THE STATE (1997) NWLR (Pt. 481) P.355. OSUAGWU
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VS THE STATE (2013) 1-2 SC (PT. 1) P. 37, EMEKA VS STATE (2014) 6-7 SC (Pt. 1) P. 64.
In proof of the charge of armed robbery against the appellant, the prosecution called seven (7) witnesses and tendered four (4) exhibits i.e. Exhibits A1, A2, and D in evidence. Five (5) of those seven (7) witnesses for the prosecution, were all eye witnesses. The evidence produced by prosecution in proof of the offence of armed robbery against the Appellant was quite overwhelming. On the ingredients to establish the offence of armed robbery, the Appellant has not put up a defence to exonerate himself from any.
The prosecution established that, there was robbery on the date of the arrest of the Appellant. That the Appellant, and the others at large were armed.. The Appellant who was arrested right at the scene of the robbery, took part in the armed robbery. The Appellant then shifted the right from the main bowl, the ingredients of the offence, to the second arena, that is the Court, for non compliance with the Rules of Procedure.
The appeal raises the issue of fair hearing bordering on the provisions of Section 186 of the Criminal Procedure Code. Both the
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Appellant and Respondent would seem to have concurred that beyond the act of armed robbery contrary to Section 5 and 1(2) of the Robbery and Firearms (Special Provisions) Act Cap 398 LFN 1990 under which the accused was charged was not the focal point.
The contention seems to have been narrowed down to whether or not the failure to appoint Counsel for the accused, vitiated or did not vitiate, the fairness of his trial.
The learned Counsel for the Appellant, essentially hinged on the provisions of Section 186 of the Criminal Procedure Code which states that:-
“Where a person is accused of an offence punishable with death if the accused is not defended by a legal practitioner the Court shall assign a legal practitioner for his defence.”
A coin must always have the other side. The flip side of the issue in this appeal is presented in the Respondents brief of argument. In the 15 page document, the learned Counsel to the Respondent reasoned that the principle of fair hearing in the process of adjudication is not limited to taking of evidence only, and that it must be given or protected throughout the entire proceedings. It involves the whole
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proceedings. Counsel contends that the test of determining if a party has been accorded fair hearing or not is the impression of a reasonable person who was present at the trial. He cited the cases of ISHIYAKU MOHAMMED VS KANO NATIVE AUTHORITY (1968) 1 ALL NLR 424; BABA VS C.C.A.T.C (1991) 5 NWLR (PT 192) 388 at page 430 and the case of KAIGAMA VS NAMNAI (1997) 3 NWLR (PT 495) 549 at page 566.
The Respondent Counsel admitted that the provision of Section 186 of the Criminal Procedure Code applies, but only to the extent that, if, or where the accused was not represented by Counsel. He contended that the Appellant had a Counsel representing him. Therefore, the learned Counsel submits, the provision does not apply to him. See pages 3-5 of the Respondent’s brief of arguments.
The above summarises the gravamen of the contention of the Appellant and Respondent as far as issue one is concerned. I refused to be swayed, like the Court below, that this is a case in which the trial is vitiated simply because the Appellant had no counsel and one was not appointed for him pursuant to the provisions of Section 186 of the Criminal Procedure Code. The Appellant had
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and maintained his Counsel from beginning to the end of the trial save that on 23rd January, 2006, when the trial began, the learned trial Judge demanded to know if the Appellant was ready to commence the hearing, which he answered in the affirmative.
The principle of fair hearing as enshrined under the Constitution of the Federal Republic of Nigeria, 1999 as amended (CFRN, 1999) is for both the Appellant and Respondent. Section 36 (1) of the CFRN, 1999 provides thus:
“In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such a manner as to secure its independence and impartiality.”
In the locus classicus case of ARIORI & ORS. VS MURAIMO ELEMO & ORS (1983) 1 SC 13 at 24 per Obaseki JSC, this Court opined that fair hearing means a trial conducted according to all the legal rules formulated to ensure that justice is done to the parties to the cause.
“Reasonable time”, the Supreme Court held, must mean the Period of time
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which, in the search for justice does not wear out the parties and their witnesses and which is required to ensure that justice is not only done but appears to reasonable persons to be done.” This position has been reiterated in the case of IDAKWO VS EJIGA (2005) 48 WRN at Ratio 5, page 35 to 36.
Thus the Courts or Tribunals administering justice have been enjoined to bear in mind the dictum of Bage, JCA, (as he then was) in the case of ADEYELA VS ADEYEYE (2010) W.R.N 42 at Ratio 12, page 70 to 71 where the Court of Appeal opined as follows:
“Rules of procedure are made for the convenience and orderly hearing of cases in Court. They are made to help the cause of justice and not defeat justice. The rules are therefore aids to the Court and not masters of the Court. For Courts to read rules in the absolute without recourse to the justice of the cause, to my mind, will be making the Courts slavish to the rules. This certainly is not the reason of the Rules of Court.”
The provision of the Criminal Procedure Code is intended to aid in the smooth, fair and just administration of criminal justice. It certainly does not mean to defeat the end of
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justice. This is because on 14/12/2005 the trial Court delivered a ruling refusing the accused person (now the Appellant) bail and instead ordered accelerated hearing of the case and then adjourned to 23/1/2006 for hearing. And when the Court convened on 23/1/2006, the accused was present in Court, but his Counsel, who had prior to this date been appearing, was absent. The trial Court before commencing asked the Appellant the whereabouts of his Counsel. The hide and seek continued for two adjournments. When the prosecution indicated readiness to proceed, the Appellant indicated his readiness. The Appellant then proceeded to cross-examine the PW1 and PW2 extensively, and when the Defence Counsel appeared in Court, he apologized for his absence at the last adjourned date. He failed to request for the record of those proceedings to determine if he needed to recall those witnesses. He took a gamble and made a no case submission against overwhelming evidence of five eye witnesses. He now seeks to take solace in the rule of procedure under Section 186 of the Criminal Procedure Code to defeat justice. This is herculean task, without neutralizing or contradicting the
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evidence of witnesses before the trial Court.
Members of this Court are not judicial technicians and the Court is not a workshop of technical justice. The need to do substantial justice and avoid delving into the error of technicalities is well settled. This principle has been rehashed in a long line of authorities, for example: NATIONAL REVENUE MOBILIZATION ALLOCATION AND FISCAL COMMISSION (N.R.M.A.F.C) VS JOHNSON (2007) 49 W.R.N Pages 169-170 where Peter Odili JCA (as he then was) opined as follows:
“…. The Courts have deliberately shifted away from narrow technical approach to justice which characterized some earlier decisions to now pursue the course of substantial justice. See MAKERI SMELTING CO. LTD. VS ACCESS BANK (NIG.) PLC (2002) 7 NWLR (PT . 766) 447 at 476-477. The attitude of the Court has since changed against deciding cases on mere technicalities.
The attitude of the Courts now is that cases should always be decided, wherever possible on merit. Blunders must take place from time to time, and it is unjust to hold that because a blunder has been committed, the party blundering is to incur the penalty of not having the dispute
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between him and his adversary determined upon the merits”
See also AJAKAIYE VS IDEHIA (1994) 8 NWLR (Pt. 364) 504, ARTRA IND. LTD VS NBCI (1997) 1 NWLR. (PT. 483) 574, DAKAT vs DASHE (1997) 12 NWLR (Pt. 531) 46, BENSON VS NIGERIA AGIP CO. LTD (1981) 5 S.C 1.
Section 36(6)(c) of the Constitution gives a person who has been charged with a criminal offence right to defend himself by a legal practitioner and or by himself. The provision of the Criminal Procedure Code is a rule of procedure. The Appellant had elected to conduct trial by himself in line with his constitutional right, which thrives over statutory provisions and rules of procedure like the Criminal Procedure Code. See the case of OGUNSANYA VS STATE (2011) 12 NWLR (Pt.1261), page 401 at 429 where this Court held thus:-
“Once a trial Court has given a party ample opportunity to defend himself, and the party does not avail himself of that opportunity, then the party cannot complain that he was deprived of the right vested in him by Section 36(4) and (6) of the 1999 Constitution.,.. The Appellant was given the opportunity to defend himself but he failed to seize that opportunity. In the
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circumstance, he cannot complain of denial of fair hearing.”
In view of the foregoing, issue one is resolved in favour of the Respondent (and, for emphasis, against the Appellant). The Appellant elected to exercise his constitutional right, as against procedural right under the Criminal Procedure Code. Despite this, all other options including recall of witnesses were not explored. It is my considered view opinion that had the trial Court failed to allow the Appellant exercise his right to defend himself in person, after electing to do so, that would have amounted to a greater breach of his constitutional right to fair hearing.
For all intents and purposes, the right conferred by a rule of procedure like the Criminal Procedure Code cannot defeat the sacrosanct right of fair hearing under the Constitution, particularly once an accused person opted to exercise the latter right, as is the case of the Appellant in this case.
ISSUE 2:
“Whether the charge against the Appellant was proved beyond reasonable doubt.”
The contention of the Appellant is that the Respondent has failed to discharge the burden of proving that there was a robbery
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incident, that the robbery incident involved the use of arms and that the Appellant actually partook in the act. The learned Counsel for the Appellant relied on the cases of ODOSEN VS THE STATE (2007) All FWLR. pt. 356, 669 at 673; OSENI VS THE STATE (2012) SC (Pt 1) 52 at 87; BOZIN VS THE STATE (1985) 2 NWLR (Pt. 8) at 465; ISIBOR VS THE STATE (2007) NWLR (Pt. 1049) 614 at 635 and ARUNA VS THE STATE (1990) 6 NWLR (Pt.155) at 125. See pages 10-17 of the Appellant’s brief of argument.
On his part, the learned Counsel to the Respondent argued that the criminal guilt of an accused person could be established by confessional statement, circumstantial evidence and evidence of an eye witness. He proceeded to summarize the evidence of PW1 to PW.6 and the tendering of four (4) exhibits including the confessional statement of the Appellant.
He submits that the confessional statement of the Appellant was free and voluntary and that it is immaterial that the Appellant subsequently resiled from his voluntary confession at trial. In support of his argument, the learned Counsel to the Respondent relied on the cases of PATRICK IKEMSON & 2 ORS VS THE STATE
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(1989) 3 NWLR (Pt. 110) 455 at 476 paragraph D: JOSEPH IDOWU VS THE STATE (2000) 7 SC 50 at 62; (2000) 12 NWLR (Pt.680), at 48, NKWUDA EDAMINE VS THE STATE (1996) 3 NWLR (Pt.438) 530 at 537 paragraphs D-E; SAMUEL THEOPHILUS VS THE STATE (1996) 1 NWLR (Pt. 423) page 139 at 155 paragraphs A-B and AWOPEJU VS THE STATE (2002) 3 MJSC 141 at 151. He concluded by urging this Court to resolve issue two in favour of the Respondent. See pages 7-11 of the Respondents brief of argument.
A quick recap of the evidence at trial indicate that:-
“PW.1 Hajara Mohammed, a housewife. In her testimony before the Court, she narrated as follows:
On 15/6/2005 myself and my friend, Maryam Mohammed with my children were in the car, we went to Wuse II to visit a friend. From there I was taking Maryam and her daughter to Wuse Zone II as I dropped her at her house, I saw the accused holding a bag. I thought he was selling cards. As I looked at him properly he showed a gun to me and he said I should come down. Then one other person came through the back and he removed the key of the car. The security guards at the house saw them when the accused pointed a gun at
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As I was coming out of the car the security guard held the accused while the other person had already succeeded in driving the car away. Then police were called. The accused person were three in number, the 3rd person took the gun and run away while the accused was held and the other one left with the car. The car is a Nissan Maxima with Reg. No. AT 516 BWR FCT, The value of the car is about N700,000.00. The incidence took place between 8:00 to 8:15 or 8:20 p.m. During cross-examination, she said the accused met her with a black bag and he pointed a gun at her. The police found two cartridges with him and he was the one holding the gun. She said one of the security men hit him on the hand and the other man carried his legs and he fell down. That was how they arrested him.
She said the accused hid the gun in the bag.
PW.2 in her own testimony, she said her name is Maryam Mohammed. She lives at Wuse. She knows the accused person. She gave the following evidence:-
On 15/6/2005 around 8p.m. I was returning from a friend’s house, My friend Hajiya Hajara Mohammed was driving the car with my daughter when we got home I came out of the car with my
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daughter and her daughter came to the front seat of the car. As I was bidding her good night. Suddenly two men came out of the flower with a bag, polythene bag we thought they were selling cards. The accused was wearing a yellow captan and the other one was wearing white captan. Just as we were wondering what they wanted they pointed a gun at us and they said we should all go back to the car, my daughter was trying to run and the accused followed her and said she should go back to the car, My friend came out of the driver’s side and the other person took over.
While the other person was trying to move away with the car the accused tried to scare away anybody that comes near him while holding the gun. The security guards around noticed what was happening and they came. They were able to over power the accused and the gun fell down. They pushed him to the ground and one other person came and took the gun and he ran away. While the other person took away the car. The accused was then held and they wanted to kill him but we stopped them and we said let the police be invited to come. Some policemen on guard at the house of a Commissioner of police came and
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they helped us to take away the accused to the station. The car is a Nissan Maxima metallic gold Reg. No. AT516 BWR. During cross-examination she said the security guard “held the accused and police came and arrested him. The security men did not have a gun they were many they over powered the accused and the gun fell of.
PW.3, Cpl. Rabiu Dalhatu attached to the State CID FCT Police Command as an exhibit keeper:-
Through him the two live cartridges were admitted in evidence and marked as Exhibits A1 and A2.
PW.4 is Buhari Garba. His evidence was interpreted from Hausa to English and vice versa by J. Bab:-
He lives at Mambolo Street, Wuse Zone II. He is a security man. He said on 15/6/2005 in the evening around 8:00 a.m. my landlord, Hajiya Maryam came and parked her car at the gate, We heard people shouting then we came out. We heard our Madam, Hajiya Maram shouting, thief! Thief! As we came out I saw three thieves. As I reached the scene one of the them pointed a gun on my face. I then raised up my hand. I did near them. Then grabbed the person holding the pistol and it fell down. As I wanted to pick the gun one of them picked the gun and he
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told me to release the other one or else he could shoot me. I told him I would not release him he should shoot at me. While we were struggling with the other one the 2nd person took away the car. The 3rd person took a motorcycle and followed the one who left with the car. We tied the one we arrested and we called the police. As the police came I told them to hold on. I checked his pocket and I saw three live ammunitions. We went to the station together and we left the accused there. It was the accused in the dock that I grabbed, we were two as securities. I was not alone. The name of the other security man is Kasimu Usman. The madam bag is in the car. During cross examination he said the accused was not the one who took the car but he was the one who was holding a gun.
PW5. Sgt. Simon Obagwu attached to State CID FCT Command, Abuja. He works with the special Anti Robbery Squad. In his testimony he said the case of armed robbery involving the accused was transferred from Wuse Division on 17/6/2005 to State CID. And he was detailed to investigate the accused along two live cartridges and one Hajiya Hajara Mohammed as the complainant were handed over to him.
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In the course of his investigation he obtained the statement of the complainant. He kept the two live cartridges with the exhibit keeper and he also recorded the statement of the accused, which was admitted in evidence is Exhibit B. He identified Exhibits A1 and A2. During cross examination he said no pistol was recovered from the accused and apart from the cartridges no weapon was recovered. The defence counsel applied that the witness should write on paper which he did and same was admitted in evidence as Exhibit C.
PW.6 P.C. Balarabe Moshood attached to Wuse Division.
He works with the Crime Branch. He told the Court that on 15/6/2005 the complainant, Mrs. Majaru Mohammed came to Wuse Central Police Station with a patrol team and the suspect. They reported a case of armed robbery. It was accepted and referred to him for investigation. He obtained the statement of the complainant and that of the accused under word of caution. The said statement was admitted in evidence as Exhibit D.”
The case of SEGUN AJIBADE VS THE STATE (2013) 8 NCC 221 as decided by this Court is instructive in this regard, being similar to the issue in this appeal. In that case, the accused
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elected to keep silent pursuant to the provisions of Section 287(1) of the Criminal Procedure Act which gives the accused the option of keeping silent and saying nothing where the defendant is not represented in Court. The accused elected to keep silent and says nothing on the basis of which he raised the issue of fair hearing, compared to the instant appeal where the Appellant elected to cross-examine the witness in person pursuant to his constitutional right. This Court held thus;
“In the final result, the trial Court will have to decide the case on the evidence before it undeterred by the incompleteness of tale from drawing all inferences that properly flow from the evidence of the prosecution. The defense has shut itself out and will have itself to blame. The Court will not be expected to speculate on what the accused might have said if testified…
What it requires to give a party , right to be heard in the determination of any allegation made against is if such an opportunity is given and the party failed to utilise such opportunity, he could no longer be heard to complain that his right to fair hearing has been breached. See also OLUSANYA VS THE
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STATE (2001) 6 SCNJ 190 at 211-212.”
See also: ABADOM VS THE STATE (1997) 1 NWLR (Pt. 479) 1 at 20-21, UTTEH VS THE STATE (1992) 23 NSCC (Pt.1) 236 at 246; (1992) 2 NWLR (Pt.223) 257 at 274.
The law is that the Supreme Court will not interfere with concurrent findings of facts by the trial Court and the Court of Appeal unless such findings are perverse; or are not supported by the evidence; or are reached as a result of a wrong approach to the evidence; or as a result of a wrong application of any principle of substantive law or procedure.” See ARABAMBI VS ADVANCE BEVERAGES IND. LTD. (2005) 19 NWLR (Pt 959) 1 Per Onnoghen. J.S.C (P. 46. C-F)
In this case, there are two concurrent findings of facts of the lower Courts on the issue, it has always been the practice of this Court in such circumstances to decline to review the evidence a third time unless there is proof of miscarriage of justice or a violation of some principle of law or procedure. or if the finding is/was perverse.
See OCHIBA VS THE STATE (2011) 12 SC (Pt IV) P. 79 Per Rhodes-Vivour, J.S.C. (Pp. 51-52, paragraphs F-B). See also CAMEROON AIRLINES VS OTUTUIZU (2011) 12 SC (Pt III)
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200, OLOWU VS NIG. NAVY (2011) 12 SC (Pt. II) P.1 AROWOLO VS OLOWOOKERE & 2 ORS. (2011) 11-12 SC (Pt. II) P. 98.
In concluding this Judgment, I wish to state, for the umpteenth time, the attitude of this Court has remained and will remain, except in exceptional circumstances that are obvious having regard to the facts of each case, that it will not disturb or interfere with such findings and facts as in the instant case.. The judgment of the trial Court cannot, be faulted at all and the lower Court was right in affirming and endorsing same. The appellant has failed to convince me that this is a situation in which this Court should interfere. See also MINI LODGE LTD V. NGEI (2009) 18 NWLR (Pt 1173) 254 Per Musdapher, J.S.C (as he then was) (P.33), Paragraphs B-D). Thus, I agree with the Court below, wherein it stated on page 246 of the record of appeal as follows:-
Thus, in the light of my discourse above, I am convinced that the prosecution led credible and cogent evidence in proof of the two offences they charged the accused/appellant. All the three essential ingredients of the offence of armed robbery which I highlighted earlier in this
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judgment were duly proved beyond reasonable doubt as required of them so to do under Section 138(1) of the Evidence Act. See ALABI VS THE STATE (1993) 7 NWLR (Pt.307) 511; BOZIN VS THE STATE (1985) 2 NWLR (pt.8) 465, NWOSU VS THE STATE (1998) 8 NWLR (Pt.562) 433. This second issue is therefore also resolved against the Appellant.”
It is in view of the foregoing that issue two is also resolved against the Appellant. This appeal fails in whole. This appeal lacks merit and is accordingly dismissed. The judgment of the lower Court dated 7th June 2013 is hereby affirmed. The conviction and sentences of the Appellant are hereby reconfirmed.
SC.303/2013
