Ifeanyi Ukonu Obi V. The State (2016)
LawGlobal-Hub Lead Judgment Report
PETER OLABISI IGE, J.C.A.
The Appellant, IFEANYI UKONU OBI was arraigned before the High Court of IMO STATE, OKIGWE JUDICIAL DIVISION (HON. JUSTICE P. C. IKPEAMA on the 6th day of July 2011 when his plea on one Count Information was taken.
The said one Count Information reads as follows:
?STATEMENT OF OFFENCE
CAUSING GRIEVOUS HARM Contrary to Section 332(a) of the Criminal Code Cap 30 Vol. II, Laws of Eastern Nigeria 1963 as applicable to Imo State.
PARTICULARS OF OFFENCE
IFEANYI UKONU OBI on the 18th day of May, 2007 at Amaorji, Ofoacharawo, Okigwe in the Okigwe JUDICIAL DIVISION maimed ABUCHI EJIMKONYE by cutting off his two wrists with Matchet and made away with them.?
The Appellant pleaded NOT GUILTY to the one Count Charge and his trial commenced. The prosecution called three witnesses while the Appellant testified in his own behalf.
At the conclusion of evidence, the Learned Counsel to the prosecution adopted his address. It must however be noted that the Learned Counsel to the Prosecution S. C. Osuoha Esq., ACSC, on 20th day of June, 2012 applied to
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amend the charge against the Appellant pertaining to the Section of the Criminal Code under which the proceeding was initiated. The said Learned Counsel applied to amend Section 332(a) of the Criminal Code to read Section 332(1) of the Criminal Code. The Appellant as the Accused did not object to the amendment of the Charge as aforesaid.
The plea of the Accused as required under the Criminal Procedure Law was re-taken and the Appellant pleaded NOT guilty to the charge as amended. That same day that is 20th day of June, 2012, the Learned trial Judge gave considered judgment in the matter and found the Appellant guilty as charged. The trial Judge said among other things:
?The defence of the accused is alibi. This defence cannot avail the accused because the PW1 sufficiently fixed him at the scene of crime and the defence of alibi is negative. I believe the PW2 that the accused made Exhibit ?A? which gave account of what he did and why he did it. The accused impressed me as a most untruthful witness who is prepared to say anything to free himself.
I do not believe his afterthought evidence in Court which is concocted. I believe
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what he said in Exhibit ?A? and on his confession and the evidence of PW1, PW2 and PW3. The Prosecution has proved the charge against him beyond reasonable doubt and I find him guilty as charged.
ALLOCUTUS: The accused pleads for leniency. The Prosecutor says he has no facts of previous conviction.
COURT: The accused shall go to prison for 30 years with hard labour.?
The Appellant was aggrieved by the findings and sentence inflicted upon him and he filed his Notice of Appeal dated 18th day of February, 2014 on the same date pursuant to the Leave of this Court granted on 17th day of February, 2014. The said Notice of Appeal contained four grounds of appeal as follows:
?GROUNDS OF APPEAL
(i) GROUND ONE
The Learned trial Judge erred in Law when he held that the prosecution has proved the charge against the Appellant beyond reasonable doubt and thereby convicted and sentenced the Appellant to Thirty (30) years imprisonment with hard labour.
PARTICULARS OF ERROR
(a) The PW1 is a child of tender years whose evidence ought to be corroborated by independent evidence before being relied upon by the trial
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Court.
(b) The trial Court relied on the evidence of PW1 which was not corroborated to enter a verdict of guilty against the Appellant and thereby occasioned a miscarriage of justice against the Appellant.
(c) The evidence of the PW2 and PW3 are all hearsay evidence and cannot corroborate the testimony of PW1. The evidence was therefore inadmissible and contrary to Sections 37 and 38 of the Evidence Act 2011 and ought not to have been relied upon by the learned trial Judge.
(d) The purported confessional statement tendered by PW2 was disputed by the Appellant.
(e) The learned trial Court failed to conduct a trial within a trial to ascertain the true position with the alleged confessional statement of the Appellant which was disputed by the Appellant and thereby occasioned a miscarriage of justice against the Appellant.
(f) There was no proper examination and evaluation of the evidence of the prosecution to satisfy the required standard of proof before conviction.
(g) The trial Court believed the testimony of PW1 without duly satisfying itself as to the requirements of the law as stated in the case of Asuquo Eyo Okon & Ors. Vs.
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The State (1988) 3 SC. (PART 1) 140, before accepting the evidence of PW1 who is a child of tender years thereby occasioning a miscarriage of justice against the Appellant.
(h) The totality of the evidence of the trial Court raised huge doubt which ought to have been resolved in favour of the Appellant.
GROUND TWO
The trial Court erred in Law when it found as follows:
?The defence of the accused is alibi. This defence cannot avail the accused because PW1 sufficiently fixed him at the scene of crime and the defence of alibi is negative.?, and thereby occasioned a miscarriage of justice against the Appellant.
PARTICULARS OF ERROR
(a) The Appellant raised the defence of alibi.
(b) The prosecution did not properly investigate the defence of alibi raised by the Appellant as required under the law and did not lead evidence to disprove the defence.
(c) The trial Court relied heavily on the testimony of PW1 in disregarding the defence of alibi raised, which testimony is uncorroborated and thereby occasioned a miscarriage of justice against the Appellant.
(d) The trial Court ought to have made a proper finding on
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the defence of alibi raised by Appellant, which defence was substantial and unassailable.
(e) There was no substantial evidence to disprove the alibi of the Appellant before the trial Court.
GROUND THREE
The trial Court erred in Law when it went ahead to deliver the judgment in this case on the 20th June, 2012, immediately after the prosecution had amended the charge against the Appellant and without granting the Appellant fair hearing as required under the Constitution thereby occasioning a miscarriage of justice against the Appellant.
PARTICULARS OF ERROR
(a) The prosecution amended the Charge Sheet on the 20th of June, 2012, after adopting their Final Address. The Appellant pleaded not guilty to the charge after it had been read to him and in challenge of the charge.
(b) The trial Court immediately proceeded to deliver judgment against the Appellant without affording him the opportunity to adduce evidence in opposition to the new charge brought against him, which breached the Appellant?s right to fair hearing and occasioned a miscarriage of justice against the Appellant.
(c) The established principle of fair hearing
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and the twin pillars of natural justice (audi alterem partem and nemo judex in causa sua) require that the Appellant be afforded the opportunity to be heard in his defence on the new charge.
GROUND FOUR
The decision is altogether unwarranted, unreasonable and cannot be supported having regard to the weight of evidence.
The appeal herein came up for hearing on 11th day of April, 2016 when the Learned Counsel to the parties adopted their Briefs of Argument.
The Learned Counsel to the Appellant CHIMEZIE VICTOR C. IHEKWEAZU Esq., settled the Appellant?s Brief of Argument and distilled three Issues for determination namely:
1. Whether the trial Court was justified in Law in relying on the uncorroborated evidence of PW1 who is a child of tender years in entering a verdict of guilty against the Appellant and whether same occasioned a miscarriage of justice against the Appellant. (Ground One).
2. Whether the Appellant has made out a defence of alibi in his testimony entitling him to a verdict of not guilty in view of the prosecution?s failure to investigate same and whether the trial Court?s finding occasioned a
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miscarriage of justice against the Appellant. (Ground Two).
3. Whether the verdict of guilty entered against the Appellant ought to be overturned in view of the fact that the trial Court delivered judgment in the case on the same day the prosecution adopted its Final Address, after amendment of the charge sheet, and without affording the Appellant the opportunity to call evidence in defence of the amended charge. (Ground three and four).
MRS. I. I. Amadi, the Learned Assistant Director of Civil Litigation nominated two Issues for resolution of the appeal viz:
1. Whether the Respondent proved the offence of grievous bodily harm against the Appellant, beyond reasonable doubt.
2. Whether the Defence of alibi avails the Appellant.
I am of the view that this appeal can be decided on the three issues formulated by the Appellant.
ISSUE NO. 1
Whether the trial Court was justified in Law in relying on the uncorroborated evidence of PW1 who is a child of tender years in entering a verdict of guilty against the Appellant and whether same occasioned a miscarriage of justice against the Appellant. (Ground One).
The Learned Counsel to
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the Appellant C. V. C. IHEKWEAZU Esq., submitted that the onus is on the prosecution to prove the guilt of the Accused beyond all reasonable doubt as no onus lies on the Appellant to prove his innocence. That the Court must also properly evaluate the totality of the evidence adduced by the prosecution. That the Accused ought to be discharged when the evidence falls short of establishing the guilt of the Accused. He relied on the cases of (1) ADENIJI VS. THE STATE (2001) FWLR (PART 157) 809 at 824.
(2) Section 135 of Evidence Act 2011.
(3) UMEH VS. THE STATE (1973) 2 SC 9.
(4) KALU V. THE STATE (1988) 4 NWLR (PART 90) 503.
The Learned Counsel referred to the evidence of the victim of the offence who testified as PW1. That the victim was six (6) years old at the time of the incident but gave evidence when he was 12 years old. The contention of the Appellant?s Counsel is that PW1 was a Child of tender years by the applicable Laws meaning according to the Appellant that the evidence given by Pw1 the victim of the offence required corroboration in line with the established principle of law and judicial authorities according to
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Appellant.
That the Lower Court believed and relied on the testimony of PW1 to find the Appellant guilty of the offence charged without sufficient corroboration by some independent admissible evidence. He conceded that sworn evidence of a child does not require corroboration as a matter of Law but desirable as a matter of practice. He relied on the case of OGUNBAYO VS. THE STATE (2006) ALL FWLR (PART 157) 1103 at 1124. He submitted that the effect of Section 175 of the Evidence Act is that all persons irrespective of age are competent to testify provided they have the mental capacity and intelligence to understand the questions put to them. He referred to the provision of Section 2(1) of the Criminal Procedure Act as to the definition of a ?Child?. He also relied on Section 209 (1) of the Evidence Act as to when a Child can testify on Oath and without being sworn. He relied on Sections 175 and 208 of the evidence Act to contend that a person shall not be convicted of an offence based on unsworn evidenced a child unless the evidence is corroborated by some material evidence implicating the defendant.
?That the competency of PW1 to testify
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hinged on his ability to give rational answers to question put to him and appreciates the nature and implications of Oath. He relied on the case of ASUQUO EYO OKON & ORS. VS. THE STATE (1988) 2 SC (Part 1) 140. That the Learned trial Judge did not comply with the mandatory provisions of Section 209 of the Evidence Act. That even if it is conceded that PW1 could testify on Oath, the trial Judge was still under obligation to administer the preliminary investigation on PW1 before admitting his evidence. That the evidence of PW2 and PW3 cannot be said to be corroborative evidence of the testimony of the PW1 because their evidence is hearsay.
That Exhibit A said to have been made by Appellant as confessional statement is not true. That the Police did not say anywhere that the Appellant admitted the Commission of any crime. That the Superior Officer who counter signed Exhibit ?A? was not called to testify. He relied on Section 167 (d) of the Evidence Act as being against the prosecution for withholding evidence.
That the Learned trial Judge was wrong in relying on Exhibit ?A? as confessional statement that
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corroborated Evidence of PW1 because the Appellant challenged or had raised the issue of the involuntariness of Exhibit ?A?. That the trial Judge ought to have conducted trial within trial to determine the voluntariness of Exhibit ?A?. That the Court must first be satisfied that Exhibit ?A? was voluntarily made before the Court could be rely on . He cited and relied on the case of NWACHUKWU VS. THE STATE (2002) FWLR (PART 123) 312 at 331, 335. That the confession must be shown to be consistent with ascertained and proved facts.
?That Appellant was not represented at the time Exhibit ?A? was sought to be tendered but that he raised objection to Exhibit ?A?. The Learned Counsel then said:
?However, he raised objection to the tendering of the Statement albeit in an untidy manner.?
Nonetheless he submitted that the trial Judge ought to have tested the veracity of the Statement before admitting same in evidence as failure so to do occasioned a miscarriage of justice. That Exhibit ?A? was not made voluntarily and cannot corroborate PW1?s evidence.
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The Respondent Learned Counsel, MRS. I. I. Amadi, Assistant Director of Civil Litigation submitted that the combined effect of Section 209 (1), (3) of the Evidence Act is that the Evidence of a Child under the age of 14 years cannot be relied upon in convicting an accused person where such evidence is not corroborated by any other material evidence before the Court other than the evidence of such a Child.
That in the case of Appellant the trial Judge did not rely only on the evidence of PW1 but also on Exhibit ?A? the extra judicial Statement of the Accused which she said is admissible and formed part of the prosecution?s case.
?That the PW2, who investigated the offence testified to the effect that Appellant confessed to the crime. That a confessional Statement does not become inadmissible only because the accused who made it retracted the Statement. He urged the Court to hold that Exhibit ?A? and PW1?s evidence corroborated each other as required by Section 209 (3) of the Evidence Act 2011. That the Court can convict on the Confessional Statement of an Accused person alone where it is direct and relevant. He relied on
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the cases of:
1. FATAI V. THE STATE 2013 VOL. 219 LRCN (Pt. 1) 44 at 60 A ? F and
2. IGBINOVA V. THE STATE (1981) 2 SC 5 at 17 ? 18.
That even if it can be said that PW1?s evidence was wrongly admitted by the trial Court in breach of Section 209(1) of the Evidence Act, the trial Judge would be right to rely solely on Exhibit ?A? the Confessional Statement to convict the Appellant as it is positive, relevant and unequivocal. That no miscarriage of justice occurred in this matter.
?As to whether the trial Judge ought to have conducted trial within trial because of Appellant?s complaint on EXHIBIT ?A? while he was giving evidence and alleged he was forced to sign Exhibit ?A?, the Learned Assistant Director Civil Litigation, contended that a trial within trial would be conducted where an Accused person challenged the admissibility of the Confessional Statement when it was sought to be tendered. That that was not the case in this appeal because the Appellant at the point of tendering only said he did not make Exhibit ?A? thus the trial Court has right to admit it without a
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trial within trial. That the denial did not raise any issue of voluntariness of the Confessional Statement Exhibit ?A?. That the Appellant should not be under any illusion that a plea of non est factum is the same as saying a Statement was not made voluntarily. He relied on IKPASSA VS. A. G. BENDEL STATE (1981) 9 SC 7 and EHOT VS. STATE (1993) 4 NWLR (PART 290) 64.
Now the Central theme or heart of the submissions of the Learned Counsel to the Appellant is that PW1 who was the victim of the offence, the Appellant was convicted was a minor of about 6 years old when the offence was committed and at the time he testified he was only twelve (12) years of age meaning he was a minor whose evidence must conform with Sections 175, 208 and 209 of the Evidence Act 2011 which are as follows:
?175 (1) All persons shall be competent to testify, unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by reason of tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.
(2) A person of unsound mind is not
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incompetent to testify, unless he is prevented by his mental infirmity from understanding the questions put to him and giving rational answers to them.
208 (1) Any Court may on any occasion, if it thinks it just and expedient, receive the evidence, though not given upon oath, of any person declaring that the taking of any oath whatsoever is, according to his religious belief, unlawful, or who, by reason of want of religious belief ought not, in the opinion of the Court, to be admitted to give evidence upon oath.
(2) The fact that in any case evidence not given upon oath has been received, and the reasons for the reception of such evidence, shall be recorded in the minutes of the proceeding.
209 (1) In any proceedings in which a child who has not attained the age of 14 years is tendered as a witness, such child shall not be sworn and shall give evidence otherwise than on oath or affirmation, if in the opinion of the Court, he is possessed of sufficient intelligence to justify the reception of his evidence and understands the duty of speaking the truth.
(2) A Child who has attained the age of 14 years shall subject to Section 175 and 208 of
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this Act give sworn evidence in all cases.
(3) A person shall not be liable to be convicted for an offence unless the testimony admitted by virtue of Subsection (1) of this section and given on behalf of the prosecution is corroborated by some other material evidence in support of such testimony implicating the defendant.
(4) If any child whose evidence is received under this section willfully gives false evidence in such circumstances that he would, if the evidence had been given on oath having been guilty of perjury, he shall be guilty of an offence under Section 191 of the Criminal Code and on conviction shall be dealt with accordingly.
Section 175 of the Evidence Act 2011 makes every person competent to testify subject to any obstacle or impediment that can militate against any person from understanding questions put to him or her by reason of said witness being a minor, being of extremely old age, suffering from disease whether of body or mind. Though the witness in this matter on appeal was a minor at the time he testified on Oath and he was sworn on Bible. It thus means that the trial Court considered PW1 as a person of sound mind
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that understood the import and implication of testifying on Oath.
The Learned Counsel to the Appellant in paragraph 4.0.5 of Appellant?s Brief stated categorically that it is not in dispute that PW1 is a competent witness to testify for prosecution.
The contention of the appellant is that being under 14 years the PW1 ought to have given unsorwn evidence which would necessitate the trial Judge carrying out what the Appellant called the required mandatory preliminary inquiries on the PW1 before allowing the evidence coupled with a corroborative evidence that must be provided.
The demand of the Law that the trial Judge shall ask the child witness preliminary questions to test his/her ability or intelligence to answer questions and weigh whether such a child witness understands the implication of speaking the truth is within the discretion of the trial Judge and in his opinion. It is not until record shows that he recorded such Preliminaries in the record that one can infer that the trial Judge actually complied with the Law or provisions of Section 209(1) of the Evidence Act. See:
(1) MICHAEL PETER V. THE STATE (1997) 12 NWLR PART 531 at per
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ONU JSC who said:
The complaint in Issue No. 2 is whether the learned Justices of the Court below did not err in law when they sustained the trial Judge?s judgment that P. W. 1, a child of 13 years, is a competent witness to testify and give sworn evidence for the prosecution as required by Sections 154(1) and 182(1) of the Evidence Act.
I wish to point out straight away that the purports of Section 154(1) and 182(1) of the Evidence Act (now Sections 155(1) and 183(1) Cap. 112 Laws of the Federation of Nigeria, 1990) are clear and unequivocal enough to invoke any confusion. Section 155(1) (ibid) provides that:
All persons shall be competent to testify, unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by reason of tender years, extreme old age, disease whether of body or mind, or any other cause of the same kind.?
Section 183(1) (ibid), on the other hand stipulates that:
In any proceeding for any offence the evidence of any child who is tendered as a witness and does not in the opinion of the Court,
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understand the nature of an oath, may be received, though not given upon oath, if, in the opinion of the Court, such child is possessed of sufficient intelligence to justify the reception of the evidence, and understands the duty of speaking the truth.
(Italics above is for emphasis).
The need for such inquiry in the italicized words of Sections 155(1) and 183(1) above only arises where the trial Judge is of the view that by his/her tender age a witness ought not to be sworn and his/her evidence would then require corroboration. It was right of the learned trial Judge in the instant case to ab initio cause the witness to be sworn since at 13 years, she would reasonably be expected to understand the questions put to her and to understand the nature of the oath even though she would still be considered a person of tender age by judicial interpretation. See Juliana Ode v. The State (1974) 1 ANLR 411. The learned trial Judge?s impression of 1st P. W.?s competence to give clear, cogent and compelling evidence from the record to the events that led to her sister?s death from inception to the end of the case, was not in any way
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beclouded. I am of the opinion that he had therefore taken steps to satisfy himself that the relevant law as being complied with by the use of his discretion which was all he had to invoke, when he went ahead without entertaining any doubt of P.W.1s competence to testify as if an adult witness, to get her to be sworn and her evidence accordingly recorded. See the decision of this Court in Isaac Sambo v. The State (1993) 6 NWLR (Pt. 300) 399, a case of rape contrary to Section 283 of the Penal Code wherein, in a similar situation, one of the issues that came up for determination was whether it was mandatory for a trial Court to conduct the usual preliminary test as to the capability of a child to testify before receiving the childs evidence under Section 182(1) (now Section 183(1) of the Evidence Act. That if the answer is in the affirmative, whether the Court of Appeal should not have quashed the conviction of the appellant based on the evidence of P.W.1 who was a child, which evidence was received by the trial Court without conducting the preliminary test. Expatiating on the purport of Section 183(1) of the Evidence Act (ibid), Ogundare, J.S.C.
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quoting from G.B.A. Coker, J.S.C.?s decision in Okoye v. The State (1972) 12 SC. 115, 125 ? 126, observed that Section 183 of the Act is aimed at a child who does not understand the nature of an oath. Where, in the opinion of the Court, a child understands the nature of an oath it is not necessary for the Court to carry out further preliminary investigation for the purpose of ascertaining whether the child has sufficient intelligence to satisfy his giving such evidence and understands the duty of speaking the truth as prescribed by Section 183 of the Evidence Act, Cap. 112 Laws of the Federation of Nigeria, 1990. Thus, although in Sambo v. The State (supra) the appellant?s appeal was allowed, in the instant case, I will be loath to interfere with the discretion exercised by the trial Court which the Court below, rightly in my view, affirmed both findings which amount to concurrent findings of facts. By failing to carry out preliminary investigation before taking the evidence of P.W.I, in the instant case no error of a fundamental irregularity rendering the evidence so received worthless and of no use as in Sambo v. The State (supra) and Agenu
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v. The State (1992) 7 NWLR (Pt. 256) 749 respectively.
(Underlined mine).
(2) SALE DAGAYYA V. THE STATE (2006) 7 NWLR (PART 980) 637 at Per OGBUAGU JSC who said:
?In the case of John Okoije v. The State (1972) NSCC (Vol. 7) 717 at 723 cited and relied on by the respondent in its brief (it is also reported in (1972) 12 SC. 115 at 125 ? 126 (or Page 77 at 84 of Lawbreed Ltd. SC. Report) ? per Coker, JSC, it is settled however, that if a trial Judge is of the opinion that a child is capable of understanding the nature of an oath, it is not necessary for him to carry out any preliminary investigation in that regard. See also Okoyomon v. The State (1973) NSCC (Vol. 3) 170 cited and relied on by the respondent in its brief (it is also reported in (1973) (1) NMLR 292 and (1973) I SC. 21). This is why perhaps, it is also settled, that if a trial Judge believes the sworn evidence of a child, he is entitled to act on that testimony alone just as if it is a sworn testimony of an adult. See Arebamien v. The State (1975) 5 U.I.L.R. (University of Ife Law Report) (Pt. 11) 144 SC. This is because there is no requirement in law, that
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the sworn testimony of a child, must be corroborated.
I do not see any breach of the provisions of Section 209(1) of the Evidence Act vitiating the evidence of PW1 whose evidence the trial Judge allowed to be taken under Oath just because the said PW1 was under 14 years of age. The Accused is shown on page 20 of the record to have cross examined PW1. The evidence of PW1 is quite admissible under the Evidence Act. It was rightly admitted and justly utilized by the trial Court.
The next major allegation of the Appellant under Issue 1 is that the evidence of PW1 was not corroborated by independent evidence and that the Evidence of PW2 and PW3 did not provide the necessary corroboration in that they gave hearsay evidence.
What is corroboration? Corroborative evidence is that piece of evidence which confirms in all respect the evidence of a witness in a criminal trial against an Accused person showing truly that the Accused committed the offence for which he is charged. It must implicate the Accused in some respects material to the charge against him. See (1) ALHAJI JIBRIN OKABICHI & ORS. VS. THE STATE (1975) 3 SC 96 at per COKER JSC who
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said:
Corroboration is evidence which may be direct or circumstantial but in any case it is the duty of the Court to ascertain that whatever evidence is being used or regarded as corroboration is independent of the evidence to be corroborated and is such as supports the story of the main evidence to the effect that it renders that story more probable and that it implicates the accused person in some material particular.
THE STATE VS. JAMES GWANGWAN (2015) 9 SCM 253 at 272 B C per OKORO JSC who said:
Now corroboration means or entails the acts of supporting or strengthening a Statement of a witness by fresh evidence of another witness. In Sale Dagayya v. The State (2006) 7 NWLR (Pt. 980) 637 (2006) 2 SCM 33 this Court held that corroboration does not mean that the witness corroborating must use the exact or very like words unless the matter involves some arithmetic.
Thus a corroborative evidence must be independent testimony or evidence which affects the Accused or connects him or tending to link him with the charge against him.
The Evidence of PW2, John Uliong, an Assistant Superintendent of Police
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shows that he obtained the Statement of the Appellant which he said was confessional. He took the accused before a Superior Police Officer who counter signed the Statement. This was after the Statement was read to the Appellant who admitted making the Statement before the Superior Officer. (Page 22 of the record). The Statement was tendered through PW2 and was marked Exhibit ?A?. The Appellant denied making the Statement. Notwithstanding the denial the Learned trial Judge treated and relied on the Statement Exhibit ?A? as the Confessional Statement of the Appellant.
The trial Judge was right. This is because the Appellant at the point when the said Confessional Statement was sought to be tendered, told the trial Court that the Statement was not his own. At that stage, the trial Judge has no option than to receive the Statement in evidence and watch whether the evidence of the prosecutions witnesses against the Accused now appellant and the disowned Statement would implicate the Accused as the person who actually committed the offence charged.
The Issue as to whether the Appellant voluntarily or involuntarily made the Statement
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did not arise and there was no obligation on the trial Judge to conduct trial within trial as suggested in the Appellant?s Brief since the Appellant did not accept the Statement to be his and he did not tell the Court at the time the Statement was being tendered that that was the Statement he was forced to sign by the Police Investigators into admitting the offence he was charged.
The settled position of the Law is that the appropriate time to challenge the admissibility of a Statement projected as Confessional Statement of an Accused on ground of involuntariness, inadmissibility or any other vice or inadequacy is at the time and point when prosecutor seeks to tender the Statement or document in evidence and not at Appellate Court. See:
(1) JOSEPH UBI V. THE STATE (2012) 16 NWLR (PART 1327) 522 at 545 E per CHUKWUMA ENEH, JSC who said:
The objection to a confession is required to be raised at the tendering of the confessional statement. This is ordinarily so during presenting of the prosecution?s case at the main trial.? (sic).
(2) F.R.N. VS. FAITH IWEKA (2011) 12 (Pt. 2) SCM 213 at 220 G ? I where MUKHTAR JSC
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(Later C.J.N Rtd) held:
It is on record that the learned respondent?s counsel did not raise any objection at the point of tendering the statement. It was after the confessional statement had been admitted that the respondent retracted the statement in the course of giving evidence in his defence. This I think was an afterthought, for if she was uncomfortable with the statement, the point of tendering and admissibility should have been when to object. It was late in time to have retracted at the stage she did. The confessional statement not having been objected to was admissible as evidence, and the learned trial Court was not in error in ascribing probative value to it. Authorities abound on this principle. Once there is evidence of the administration of words of caution on a suspect in the language he understands, and he voluntarily makes his statement which is so recorded, and he signed the statement, a Judge is at liberty to act on it and predicate a conviction thereon. See Ikemson v. State 1989 3 NWLR part 110 page 530, Salami v. State 1971 1 NMLR 249, Edamine v. State 1996 3 NWLR part 438 page 53 and Ubierho v. State 2005 5 NWLR part 919
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page 644; (2005) 2 SCM, 193.
Different consideration and principles of law govern admissibility of a Confessional Statement disowned and a Confessional Statement objected to as involuntarily made. See GODWIN UKPASA VS. BENDEL STATE (1981) N.S.C.C. 300a at 309 ? 310 per UDOMA, JSC who held:
?My lords, it is a well established practice in this country that where on the production of a confession it is challenged on the ground that an accused person did not make it at all, the question of whether he made it or not is a matter to be decided at the conclusion of the trial by the learned trial Judge himself. Whatever objection may be made by counsel in such circumstances does not affect the admissibility of the statement and therefore it should be admitted in evidence as the issue of voluntariness or otherwise of the statement does not arise for consideration and decision. See Queen v. Igwe (1960) 5 F.S.C. 55.
In this country where criminal trials are usually held by a Judge sitting alone without a jury, a distinction is usually drawn as regards practice and procedure in relation to the admissibility of a confession in evidence of
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trial proceedings between a confession objected to on the ground that it was not made at all by an accused person, in which case such a confession may be said to have been retracted, and a confession objected to on the ground that it was not voluntary in that although an accused person agreed to have made the confession, his complaint would be that he was forced or induced to make it.
In the latter case, what is attacked in the admissibility in evidence of the confession and therefore a trial within a trial must be held, the confession having been challenged on voi dire so as to determine whether or not the confession was voluntary. If at the end of such trial, the Court comes to the conclusion that the confession was not voluntary, then it is not admissible in evidence, and the Court should so rule.
In the former case, where the confession is wholly retracted, the question as to whether or not the confession is admissible in evidence does not arise for decision at all. The trial Judge is entitled to admit the confession in evidence as something which had occurred in the course of the investigation conducted by the Police into the case; and
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thereafter to decide or find a matter of fact at the conclusion of the case as to whether or not, in all the circumstances, the accused person did make the statement as alleged by the Police.
In the appeal in hand, the confession having been completely retracted, and all that the learned trial Judge had to do was to consider whether the appellant had made the statement and whether having regard to the surrounding circumstances, the statement was true and not whether the confession was voluntary. See also the Privy Council decision in Cham Wel Keug v. Queen (1967) 2 A. C. 160; and R. v. Burgess (1968) 2 Q. B. 112.”
The trial Judge found the Appellant made Exhibit ?A?. There is clearly no miscarriage of justice in the manner the Statement was admitted and relied upon by the trial Judge. It is now that the Appellant is feigning ignorance as to procedure because it dawns on him now that he has by Exhibit ?A? fully admitted the ingredients of the offence for which he was charged.
?I am of the solemn view that Exhibit ?A? made by the Appellant fully provided the necessary corroborative evidence to the evidence
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given by PW1 who was callously and wickedly had his two hands cut off and severed from his body by the dastardly and most heinous act of the Appellant. The Appellant also complained that the trial Court ought to take into consideration the fact that he had no Counsel at the trial. The choice was that of the Appellant to have complained that he had no Counsel or that the Court should assist him in finding a pro bono Counsel if he had no money to secure a Counsel of his choice. He preferred and chose to defend himself as he was entitled to do under Section 36(6) (c) of 1999 Constitution as amended and thus could only blame himself if he now feels he took a wrong decision to defend himself without the assistance of a Legal Practitioner. It is sheer appeal to unmerited sentiments. There is no sentiment at the alter of justice.
Issue 1 is resolved against the Appellant.
ISSUE 2
Whether the Appellant has made out a defence of alibi in his testimony entitling him to a verdict of not guilty in view of the prosecutions failure to investigate same and whether the trial Court?s finding occasioned a miscarriage of justice against the Appellant
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(Ground Two)
The focal point of the Appellant?s Learned Counsel?s submission under Issue 2 is that the Appellant raised the defence of alibi DURING CROSS – EXAMINATION after giving evidence in his defence. The Appellant stated that the trial Judge was wrong in holding that the defence of alibi did not avail the Appellant because PW 1?s evidence sufficiently fixed Appellant at the scene of crime. The Learned Appellant?s Counsel then went into what the plea of alibi means and entails and contended that the onus is on the prosecution to debunk the defence of alibi. He cited and relied on the cases of
1. UKERSHUMA VS STATE (2003)S FWLR (PART 1370) 1117 at 1132.
2. SEGUN BALOGUN VS ALI OGUNSHAKI (2002) 2 SC (PART II) 89 at 101 and
3. AIGUREGHILAN VS THE STATE 2004) 1 SC (PT. 1) 65 AT 78 ? 99.
That the prosecution ought to have INVESTIGATED ONE Friday Ajaku who the appellant testified to be the one who arrested him over an allegation that he stole his money.
?In response to the allegation of alibi that the Appellant?s said was not investigated, the Leaned Counsel to the Respondent stated that the
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settled law is that an accused person who wants to rely on the defence of alibi must furnish the police at the earliest opportunity, the particulars of his whereabouts and the names of the people he was with at the material time of the commission of the crime. She relied on the cases of OZAKI & Ors. VS the state (1990) INWLR ((PART 124), 92 and OGOALA VS STATE (1991)S 2 NWLR (Pt 175) 509 at 521 D ? E.
The Learned Assistant Director of Civil Litigation recalled that the Appellant raised the issue of Alibi for the first time in the witness box. That he never raised the defence of alibi in his extra-judicial statement to the Police, Exhibit ?A? and so the Police has no duty to go on a wild goose chase. He relied on the case of NKUKWE VS THE STATE (2009) NSCQLR (PT. 32) 7& 25 at 475. That the mere assertion by an accused person that he was elsewhere does not discharge the burden unless the prosecution during investigation found it to be one. That Exhibit ?A? corroborated the evidence of PW1 fixing the appellant at the scene of crime. That this has destroyed Appellant?s plea of Alibi.
ALIBI, which is a latin word
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has been defined and explained in numerous cases by the Apex Court in the land and by this Court.
See OLANREWAJU ATAN VS THE STATE (2013)S 15 NWLR (PT. 1376) 34 AT 49 PER I.T. MUHAMMAD, JSC who said:
Alibi (a Latin word) is a specific legal terms, according to Garner (a dictionary of modern legal usage, 2nd edition, oxford, 41)s referring to the defence of having been at a place other than the scene of crime.?
See also the case of KAREEM OLATINWO VS. THE STATE (2013) 4 SCM 178 AT 196 per ARIWOOLA, JSC who said:
What does ?alibi? mean? Alibi simply means elsewhere. That is, a defence based on physical impossibility of a Defendant?s guilt by placing the Defendant in a location other than the scene of the Crime at the relevant time. The fact or state of having been elsewhere when an offence was committed.
The onus or burden of proving or establishing an alibi is firstly on Defendant/Accused who must at the earliest opportunity inform the police in his statement where exactly he was and the people he was with at the time the offence was actually committed. It is when he has discharged
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the evidential burden on him that the police/prosecution is duty bound to investigate the alibi and dislodge same. See (1) OLANREWAJU AYAN VS. THE STATE (2013) 15 NWLR (PT. 1376) 34 at 50 F.H to 51d A-B Per I.T. MUHAMMED, JSC who said:
Now, alibi is a question of act that must be established by credible evidence. Once the prosecution has discharged the onus placed on it by adducing evidence against the defence put forward by the accused, then the onus shifts on the accused to call evidence to weaken or discredit the evidence of the prosecution. In any event, it is the law that while the onus rest on the prosecution to disprove an alibi, the accused has first to discharge the evidential burden of setting up enough facts on which an alibi can rest. See AGU V. STATE (1985) 2 NSCC 1197; (1985) 9 SC 221. It is the law as well, that where a defence of alibi has been promptly and properly put up, the burden is on the prosecution to investigate it and rebut such evidence in order to prove the case against the accused person beyond reasonable doubt. Although there may be occasions on which failure to check an alibi may cause doubt on the reliability of the
36
case for the prosecution, it is not in all cases, that Appellant to call witnesses in support thereof, See NTAM & ANOR V. the state (Supra). In Ozala?s case (Supra) at 116, PARAS g-h, This Court observed.
However, it does not always follows that once the prosecution failed to investigate an alibi such a failure is fatal to the case of the prosecution. The trial Court has a duty, even in the absence of investigation to consider the credibility of the evidence adduced by the prosecution vis-? -vis the alibi.?
I have looked at Exhibit ?A? the confessional statement of the Appellant, there is nothing therein suggesting even remotely that the Appellant ever set up defence of Alibi placing any onus on the Police to investigate an alibi that was not set up at the earliest opportunity by the appellant. The evidence given under cross examination which the Appellant erroneously and without any foundation or basis considered to be defence of Alibi can be found on page 25 of the record where he said:
?It is not true that I ran away from my village on 18/5 of 2007 without telling my mother or father I did not come home
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around that time as I do not live at home.
This cannot by any stretch of imagination tantamount to setting up plea of alibi worthy of any investigation by the Police. The defence in itself is self defeating as the Appellant?s Learned Counsel admitted that the defence of alibi was raised during cross examination after Appellant had given evidence in his defence. The defence crashed and was dead on arrival. More importantly even if the appellant had timeously and properly set up the defence of alibi, a fact not conceded, the alibi would still have collapsed because the evidence of PW1 which was believed by the trial Judge and Exhibit ?A? made by the appellant to the Police fixed him square at the scene of the crime and horrific maiming of the PW1 who was then six years of age. The prosecution sufficiently established that the Accused/Appellant is the culprit. The defence of alibi set up by him is preposterous. See KAREEM OLAINWO VS THE STATE (2013) 4 SCM 178 at 192 D- F per AKAAHS, JSC who said:
The evidence given by the prosecution witnesses coupled with the admission by the Appellant that the cutlass recovered
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at the scene of the crime was his effectively dislodged the plea of alibi, it is settled law that it is not every failure by the police to investigate an alibi by an accused person that is fatal to the case of the prosecution. In PATRICK NJOVENS & ORS VS THE STATE (1973) 5 SC 12 AT 47 where the defence of the Appellant was based on alibi this Court held:
There is nothing extraordinary or esoteric in a plea of alibi. Such a plea postulates that the accused person could not have been at the scene of crime and only inferentially that he was not there. Even if it is the duty of the prosecution to check on a statement of alibi by an accused person and disprove the alibi or attempt to do so, there is a flexible and verifiable way of doing this. If the prosecution adduces sufficient evidence to fix the person at the scene of the crime at the material time, surely his alibi is thereby logically and physically demolished.
Issue 2 is therefore resolved against the Appellant.
ISSUE 3
Whether the verdict of guilty entered against the Appellant ought to be overturned in view of the fact that the trial Court delivered judgment in the case on
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same day the prosecution adopted its Final Address, after amendment of the charge sheet and without affording the Appellant the opportunity to call evidence in defence of the amended charge. (Grounds Three and Four).
The Appellant relies on his arguments under Issues one and two. He further submitted that the Record of Appeal reveals that Appellant was charged under Section 332(1) of the Criminal Code Cap 30 Vol. II Laws of Eastern Nigeria 1963 for offence of intentionally causing grievous harm to one Abuchi Ejimkonye on 18th May, 2007 and that he pleaded NOT Guilty on 6/7/11 when the accused had a Lawyer. That on 20th June 2012 fixed for adoption of Final Address by the prosecuting Counsel S. C. Osuoha Esq., adopted his address and at the same time applied to amend the charge against the Appellant when he had no Counsel. That the Application was granted and the amended charge was read over and interpreted to Appellant in Igbo Language and he pleaded not guilty to the amended charge. That immediately thereafter the trial Judge proceeded and delivered the judgment and convicted the appellant for the offence charged. That it was not clear from the record
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why the Accused was not represented by Counsel and that the Accused was an illiterate that is not conversant with procedure of the Court. That the case was even then adjourned till 20/6/12 for adoption of final address and NOT for judgment to be delivered on that same 20/6/2012.
That the trial Court had a duty to ensure that the Appellant was given the opportunity to present his defence to the amended charge including the right of a Counsel to be defended by a Counsel of his choice. That Appellant was denied fair hearing. He relied on the case of N.A.B. KOTOYE VS. C.B.N. KOTOYE VS. CENTRAL BANK OF NIGERIA & ORS. (1989) 1 NWLR (PART 98) 419 at 444.
?That Appellant was not given due opportunity to present his case in the face of a clear disadvantage of not being represented by Counsel and an amendment made to the charge sheet on the day of adoption of address. That the trial Judge ought to have inquired from Appellant whether the intended to call further witness to defend the new charge or to further recall the prosecution witnesses for further Cross examination and that instead of all of these the trial Judge proceeded to deliver his judgment in
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breach of Appellant?s right to fair hearing. He relied on the cases of The State Vs. Onagoruwa (1992) 2 NWLR (PART 221) 33 and UKPE VS. THE STATE (2002) FWLR (PART 103) 416 at 447.
That even in the absence of a Legal Practitioner, the Appellant was entitle to address the Court. He relied on Section 241 of the Criminal Procedure Act Cap C41 LFN 2004. That judgment was delivered in an unexplained haste barely two days after the close of Appellant?s Case. That the whole proceedings are null and void ab initio.
?Replying to the above contentions of the appellant, the Learned Counsel to the Respondent relied on Section 294(1) of the 1999 Constitution making it mandatory for a Court to deliver its decision in writing not later than 90 days after conclusion of evidence and final addresses. That there is no Law prohibiting a Judge from delivering judgment in a case the same date that written addresses was adopted. That even in the absence of address by Counsel, a Judge can deliver his judgment. That the submissions of Appellant?s Counsel that Appellant was not given opportunity to present his defence to the amended charge including right to
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Counsel of his choice are misconceived. She submitted that the trial Court followed Sections 163 and 164 of the Criminal Procedure Act and that charge was amended before judgment was delivered at the Court below. That the amendment did not affect the trial as the Appellant was given opportunity to plead to the fresh charge. That the evidence given and the particulars of the offence were the same.
On whether the trial Judge was right in not finding a Lawyer for the Appellant, the Mrs. I. I. Amadi for the State relied on Section 36(6) (C) of the 1999 Constitution which enabled the Appellant to defend himself in person or by Legal Practitioner of his choice. That the Appellant exercised his Constitutional right to defend himself at the trial and that the offence was not a capital offence, the proceedings was not rendered void. He also relied on page 24 of the record and contended that the Appellant was given opportunity of being heard.
?Appellant filed Appellant?s Reply Brief wherein he discussed the Legal effect of Sections 163 and 164 of the Criminal Procedure Act. That the implication of the words shall in the Sections make it mandatory that
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there must be strict application. He relied on the case of ADAMU AKUM VS. MANGU LG (1996) 4 NWLR (PART 441) 207 at 217 and IDEHEN VS. IDEHEN (1991) 6 NWLR (Pt. 198) 982 on the need to construe and read the statute as a whole.
By the provisions of Sections 163(1) and 164(1) of the Criminal Procedure Act, the Prosecution may apply to a trial Court in Criminal Proceedings for an amendment or alteration of any charge before a verdict or judgment is given or returned in a Criminal trial. The Court of trial to which the application is made has the powers or discretion to allow the amendment(s) if the interest of justice justifies it. The Court however, upon the grant of any amendment to a charge must call upon the Accused to plead thereto and to state whether he is ready to be tried on the Amended or the altered charge.
?A close perusal of the record of appeal page 32 thereof shows that the Appellant was afforded opportunity to plead to the amended charge as required by the provisions of the Criminal Procedure Act just alluded to and he pleaded not guilty to the amended charge. What the Appellant thought was amissed is that the trial Judge did not show in
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the record of proceedings whether he asked the Appellant if he would want to call further evidence or witnesses. That it is also not visible on the record that the trial Judge asked and recorded questions to the Appellant as to whether he needed to recall any of the Prosecution is witnesses. To the Appellant he has been denied opportunity of being heard and the trial ought of be declared void ab initio.
?I am of the view that failure on the part of the trial Court to record whether or not he asked the Appellants all or any of the questions required aftermath of an amendment to the charge will not render the Criminal Proceedings void or a make it a nullity. What is germane and of paramount importance is that it is mandatory for the Accused to take fresh plea to fresh/amended charge against him which in this case the trial Judge fully complied with. The amended charge was adequately explained to the Appellant in the Igbo Language that he understands. The absence or failure to record whether he wished to call further evidence does not occasion any miscarriage of justice and if anything it is mere irregularity which cannot vitiate or renders the trial a
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nullity.
The question as to whether the Accused was ready to be tried on the new charge is normally asked the Accused by the Registrar reading the charge before his election as to whether he is guilty or NOT GUILTY. I believe the record of the Court satisfies the requirement of Sections 163(1) and 164(1) of the Criminal Procedure Act complained against by the Appellant.
On whether there was a failure of justice when the amendment was carried out having regard to the fact that the Appellant defended himself without a Counsel at the point of amendment of the charge.
I am of the opinion that the trial Court is not under obligation to engage the services of a Legal Practitioner to defend the Accused/Appellant particularly when one realizes that the charge against the Appellant did not carry death penalty. And in any event the Appellant?s right under Section 36(6) (C) of the 1999 Constitution as amended or altered provides that:
36(6)(c) Every person who is charged with a Criminal offence shall be entitled to
(c) defend himself in person or by a Legal Practitioner of his own.
On whether the Appellant was in
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any way denied fair hearing or opportunity of being heard, I am of the firm view that by virtue of Section 36(1) of the 1999 Constitution as amended, a person would be taken to have been given opportunity of being heard where it is shown that the trial complained of was conducted in accordance with all Legal norms designed to ensure that justice is done at all cost to all parties.
The Appellant in this appeal was given ample opportunity to present his case and defence before the Learned trial Judge. He cross examined all witnesses and gave evidence in his own defence. There is nothing to show that the Appellant at any point in the proceedings complained of any anomalies nor did he seek for any indulgence that was denied him from the printed record. His right to fair hearing is/was not in the circumstance infringed or breached. The trial Court cannot do his case for him. See IDOWU OKANLAWON VS. THE STATE (2015) 9 SCM 159 at 187 per ARIWOOLA, JSC who said:
In the instant case, I cannot see how the principle of fair hearing can apply or be relevant. The appellant has failed to show how his right to fair hearing was breached by the Court in the way
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he was tried. What is more, the allegation of bias against the trial Court was unfortunate and uncalled for. The appellant was given adequate required opportunity to be heard and he was heard in defence of the charge against him. Therefore, the fact that the counsel who handled the mater on appeal could have handled it differently is no basis for an attack on the integrity and competence of the other counsel who, as remarked by the trial Court, did her very best in the case.
In Okeke Vs. State (2003) 15 NWLR (Pt. 842) 25, where the learned senior counsel on appeal had argued that the appellant was not given a fair hearing as he was not properly, effectively and meaningfully defended, this Court had had this to say:
The whole essence of fair hearing is that the parties must be given equal opportunity to be heard. In other words, they should be given equal opportunity to present their case. Fair hearing does not mean that the prosecution must unduly assist the defence to present its case.
On whether it was wrong for the trial Court to have given judgment on the date the final address of the Respondent was done, I am of the solemn
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view that the trial Court was well within its right and the provisions of Section 294(1) of the 1999 Constitution in delivering its judgment on 20th day of June, 2012.
Where a judgment of the Lower Court is not shown to be perverse this Court will be reluctant to set aside the findings or conclusion of the Lower Court. The Appellant has not been able to show positively why the judgment of the trial Court should be set aside.See IRENE NGUMA (ALIAS IRENE OKOLI VS. ATTORNEY GENERAL OF IMO STATE (2014) 7 NWLR (PT. 1405) 119 AT 140 E – H per M. D. MUHAMMED, JSC who held thus; It was the trial Court that saw the witnesses during trial and heard their testimonies. This afforded the trial Court the opportunity of observing the demeanour and idiosyncrasies of the witnesses. In evaluating the evidence of the witnesses, the trial Court is expected to make full use of the opportunity it had of seeing and observing the witnesses in the course of their testimonies and having regard to applicable law and common sense arrive at the conclusions a reasonable tribunal in that circumstance will arrive at.
It remains within the purview and
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competence of the trial Court, therefore, for obvious reasons, to first evaluate evidence of witnesses. The trial Court does not share this jurisdiction with the Appellate Court and where its evaluation is borne out from the evidence on records, an Appellate Court cannot interfere in such a circumstance even if the Appellate Court concludes that the trial Court should have evaluated the evidence of the witnesses differently. Where, however, the trial Court failed to use the opportunity afforded it to properly evaluate the evidence adduced at a trial, the Appellate Court is competent to reevaluate the evidence on record in order to obviate miscarriage of justice. See IWUOHA VS. NIPOST (2003) NWLR (PT. 822) 308, 343-344; ADEYE VS. ADESANYA (2001) 6 NWLR (PT. 708) 1 and IRAGUNIMA VS. R.S.H.P.D.A. (2003) 12 NWLR (PT. R. 834) 427.
In the instant case, as rightly held by the Lower Court, the trial Court?s decision that the extra judicial statement of the Appellant, Exhibit ?7? is voluntary, having been borne out of the evidence on record remains unassailable. It is the principle that neither the Lower Court nor this Court can interfere with
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same.
The case against the Appellant was proved beyond reasonable doubt.
In the result, the Appellant’s appeal is lacking in merit and ought to be dismissed. The Appellant?s appeal is hereby dismissed in its entirety.
The judgment of the High Court of Imo State contained in the judgment of Honourable Justice P. C. Ikpeama delivered on 20th day of June, 2012 is hereby affirmed. The conviction and sentence imposed upon the Appellant are also affirmed.
Other Citations: (2016)LCN/8665(CA)
