Irene Nguma (Alias Irene Okoli) Vs Attorney-general, Imo State (2014)
LAWGLOBAL HUB Lead Judgment Report
MUSA DATTIJO MUHAMMAD, J.S.C.
This is an appeal against the decision of the Owerri Division of the Court of Appeal (hereinafter referred to as the court below) delivered on 18th April, 2011 affirming the decision of the Imo State High Court, (hereinafter referred to as the trial court) convicting the appellant for the offences of conspiracy and Armed Robbery in charge HOW/51C/99 and sentencing her to death.
A brief summary of the facts of the case that brought about the appeal is rendered immediately.
The appellant and the 1st accused person were tried on a two count Charge of Conspiracy and Armed Robbery contrary to Sections 5(b) and 1(2) of the Robbery and Firearms (Special Provisions) Act CAP 398 Laws of the Federation 1990 respectively. Each of the two,who claimed to be husband and wife, pleaded not guilty to each head of charge. Augustine Chukwunyere, PW1, and Inspector Atti Okon,PW2,testified for the respondent. Nine Exhibits including a Berreta Pistol, two life ammunitions,an axe, a pump action gun,PW1’s application for and the bond for the release to him of recovered items as well as the statements of the appellant and 1st accused were tendered by the respondent through the two witnesses. The appellant and 1st accused testified as DW1 and DW2 respectively.
Respondent’s case is that PW1 had come back to Nigeria from the United States for the Christmas and memorial service of his late wife. He was staying at his Uzoagba country home. Prior to the memorial service which took place on 31st December, 1998, the appellant and her alleged husband had visited and were seen at PW1’s compound. PW1 is the victim of the robbery for which the appellant and her alleged husband,the 1st accused,were tried, convicted and sentenced.
In the early hours of 31st December,1998,three men,including the 1st accused broke into PW1’s country home. The 1st accused, the lower part of whose face was covered with a handkerchief, had a gun in his hand. The other two men had shot guns. Having been ordered by the three men, PW1, out of fear, brought out his leather bag and emptied all the money in it on the floor. In compliance with 1st accused person’s subsequent order, PW1 packed all the money back into the leather bag. The three men carted away from PW1’s house the sum of N330, 000.00k in Naira notes, one hundred and fifty Dollars, forty pounds in twenty pound denomination, a wrist watch, some Jewelry and their victim’s mobile phone. The robbers who, before gaining entry into PW1′ compound had overpowered and tied the night guards, also robbed the next house which belonged to PW1’s cousin Nelly Chuwunyere. PW1 recognized the 1st accused whom he had met twice before the robbery incidence because at the time of the robbery the lamp in the compound was lit and in addition, 1st accused had a flash light. PW1 particularly noticed that on the first day he met the appellant she had a ring on her nose and chain around one of her legs.
1st accused was arrested at about 12 noon on 1st January, 1999 after the robbery incident had been reported to the police by PW1 and his relations. Upon sighting the 1st accused, PW1 alerted the police at their Uzoagba post. 1st accused was at the market square trying to board a vehicle. After his arrest, he took the police to the house of the appellant from whom PW1’s mobile phone, leather bag containing the sum of N25,000.00k, gold chain, wedding ring, pair of shoes and wrist watches were recovered. An axe and a gun were also retrieved from the premises. At 1st accused’s Irete residence, one pump action gun was also recovered.
The appellant’s defence is a total denial of committing the offences. In Exhibit “7”, her statement to the police,the appellant not only denied her participation in the crime she also disputed the recovery of PW1’s property from her. The appellant and 1st accused alleged that the police had tortured them while recording their statements. Her statement, Exhibit 7 and 1st accused’s statements,Exhibits “8” and “9”,were admitted in evidence after a trial within a trial. At the end of trial,the trial court found the appellant and the 1st accused guilty as charged, convicted and sentenced them accordingly. The lower court’s affirmation of the trial court’s decision brought about this appeal.
At the hearing of the appeal, parties identified, adopted and relied on their respective briefs they had before then filed and exchanged as their arguments for and against the appeal. The three issues the appellant distilled at pages 3-4 of her brief read:-
“3.01. Whether the lower court was fight in deciding that despite the provisions of Section 36(11) of the 1999 Constitution and Section 160(a) of the Evidence Act, the confessional extra-judicial statement said to be made by the Appellant which she resiled from, was still admissible in law, (Derived from Ground One of the Grounds of Appeal.)
3.02. Whether the lower court’s decision in striking out the issues before it relating to the marriage between Appellant and 1st Accused Person, on the ground that the trial court’s pronouncement on same was obiter, is correct. (Derived from Grounds Two and Three of the Grounds of Appeal).
3.03. Whether the lower court was right in its decision that Exhibits 1, 2, 5 and 6 properly corroborated Exhibit 7 and together proved the guilt of the Appellant of the offence charged. (Derived from Ground Four of the Grounds of Appeal.”
The respondent also distilled three issues as having arisen for the determination of the appeal thus:-
“(a) Whether on extra-judicial statement of an accused person is rendered inadmissible by reason that the accused person resiled thereon.
(b) Whether the lower court was not right in striking out the trial court’s pronouncement on the alleged marriage between the appellant and the 1st accused as obiter.
(c) Whether the lower court was not right in upholding the decision of the trial court that Exhibits 1, 2, 5 and 6 properly corroborated Exhibit 7 and together proved the guilt of the appellant of the offence charged.”
On appellant’s 1st issue, it is contended that the trial-within-a-trial procedure resorted to by the trial court which decision the lower court affirmed offends Section 160(a) of the Evidence Act and Section 36(II) of the 1999 Constitution. Sections 27-32 of the Evidence Act which the two lower courts held to have provided for the trial-within-a-trial procedure, argues learned appellant counsel, cannot, in the face of Section 1(1) and 3 of the 1999 Constitution override the Constitution. Furthermore, it is illegal under Section 36(II) of the 1999 Constitution and Section 160 (a) of the Evidence Act to compel an accused to give evidence. It goes contrary to the two provisions, argues learned appellant counsel, to make the recorded statement of the appellant, who cannot be compelled to enter the witness box and give evidence, admissible. It is all the more so because appellant’s statement was recorded after he had been tortured. Relying on INEC v. Musa (2003) 1 SCNJ 1 at 32, Ekulo Farmers Ltd v. UBN Plc (2006) ALL FWLR (part 319) 895 at 918, Adeleke v. Oyo State House of Assembly (2007) ALL FWLR (part 345) 211 at 251-258, learned counsel urges that the issue be resolved in appellant’s favour and in consequence Exhibit “7”, her statement expunged which concession leaves the lower court without any evidence to affirm appellant’s conviction by the trial court.
On appellant’s 2nd issue, learned appellant’s counsel contends that the two prosecution witnesses at pages 30, 33-33, 50 and 52 of the record of appeal gave evidence to the effect that the appellant was married to the 1st accused. DW1 and DW2, the 1st accused and the appellant respectively, similarly testified at pages 52, 53 and 54 of the record on their marriage. Contrary to the evidence on record, submits learned counsel, the trial court held that the appellant and the 1st accused were not married but partners in crime. The lower court’s finding that appellant’s issue which hangs on the trial court’s wrong finding on her marriage to the 1st accused is orbiter, submits appellant’s counsel, is perverse.
Further arguing the issue, learned counsel submits that under Section 10 and 34 of the Criminal Code, the appellant can neither be an accessory after the fact to an offence for which her husband is guilty nor held liable for facilitating her husband’s escape from punishment. The appellant who is married to the 1st accused under the Igbo customary law, by virtue of Section 42(1)(a) of the 1999 Constitution, is discriminated against if denied the defence she is otherwise entitled to under Section 10 and 34 of the Criminal Code. Relying on FRN v. OSAHON (2006) ALL FWLR (part 312) 1975 at 2002, Ushae v. C.O.P Cross River State Command (2006) ALL FWLR (pt 313) 86 at 104, learned counsel urges that on resolving the issue against the respondent, we set-aside the lower court’s affirmation of the trial court’s perverse finding on the marriage between the appellant and the 1st accused, and invoke Section 22 of the Supreme Court Act to ensure that the appellant enjoys the defences Sections 10 and 34 of the Criminal Code, Section 42(1)(a)of the 1999 Constitution as well as Articles 2, 3(2) and 17(3) of the African Charter entitle her to.
On the 3rd issue for the determination of the appeal, learned appellant counsel contends that the lower court is wrong firstly to have affirmed the trial court’s finding that Exhibit “7”, the statement of the appellant is confessional and that, secondly, Exhibits “1”, “2”, “5” and “6” corroborate the content of the said Exhibit “7”. It is contended that not all the Exhibits which the trial court held corroborate Exhibit “7” were recovered from the appellant. The bag which contained Exhibits “1” and “2” in particular, the Berrata pistol and the two live ammunition, was never tendered in evidence. Exhibits “5” and “6” the axe and pump action gun were recovered from the Irete residence of appellant’s husband. Evidence is lacking, contends learned counsel, which established that the appellant was aware of the content of the bag her co-accused gave to her to keep. The factual base of the charge against the appellant having collapsed, submits learned counsel the lower court’s affirmation of the trial court’s findings in that regard is therefore, perverse. The act of recording appellant’s statement after the recovery of the various Exhibits, concludes learned appellant counsel, disentitles the prosecution from tendering them and the trial court, by virtue of section 29 of the Evidence Act, from relying on the statement to convict the appellant. Section 29 of the Evidence Act, learned counsel insists, allows the use of statements of accused persons that led to the recovery of the Exhibits which courts hold corroborate those statements. Statements recorded after the recovering of the Exhibits, it is submitted, lack the necessary probative value to sustain a conviction. On the basis of the decision in Amobi v. Nzegwu (2006) ALL FWLR (part 297) 1087 at 1101 learned counsel urges the resolution of the issue in appellant’s favour and allowing the appeal.
Arguing the appeal under respondent’s 1st issue, it is submitted that appellant’s retraction from her confessional statement does not make the statement inadmissible. In the case at hand, learned respondent’s counsel further submits, following appellant’s objection when the statement was tendered, the trial court proceeded to conduct a trial-within-a-trial and having been convinced on the evidence of both sides that appellant was not tortured, admitted the statement in evidence. Learned appellant’s counsel’s submission on Sections 27-31 of the Evidence Act, is absurd, contends the respondent. Given Section 27 of the Evidence Act, once proved to be voluntary, appellant’s confessional statement is admissible against her. Whether or not the statement constitutes conclusive proof of what is admitted, learned respondent’s counsel concedes, is a question of fact. Once the statement is shown to be voluntary, direct and unequivocal as to the guilt of its maker, the statement is relevant, admissible and sufficient to ground a conviction. Learned counsel supports his argument with the decisions in Agogo v. State (1999) 73 LRCN 3505, Alarape v. the State (2001) FWLR (part 41) 1872 at 1893 and Eghogbanome v. The State (1993) 7 NWLR (part 305) 383.
Again, learned respondent’s counsel submits, no law precludes the use of appellant’s voluntary extra judicial statement. Neither Section 35(11) of the 1999 Constitution nor Section 160 of the Evidence Act does. From the evidence on record, the appellant was neither compelled to make Exhibit “7”, her statement, nor the evidence in her defence at her trial. Both Exhibit “7” and appellant’s evidence in her defence having passed the test the law provide on them are admissible. The distinction must always be made between the respondent’s burden of adding evidence to prove its case and the competence of the appellant to defend herself. Further relying on the decision in Sule v. The State (2009) 17 LRCN 1 at 29 and 30, learned respondent’s counsel urges that the issue be resolved in respondent’s favour.
Under their 2nd issue, learned respondent’s counsel supports the lower court’s pronouncement that the trial court’s comment on the marriage between the appellant and the 1st accused is an orbiter. Learned counsel submits that the live issue before the trial judge is one of Conspiracy and Armed Robbery with PW1 being the victim. The respondent by Exhibit “7” and the Evidence of PW1 and PW2 led credible evidence which the trial court believed in convicting the appellant. Section 34 of the Criminal Code, concedes learned counsel, shields the appellant from liability for conspiracy once there is evidence of a Christian marriage between her and the 1st accused. The fact remains though that there is no evidence of any type of marriage between the two to entitle the appellant to the defence she seeks now to assert. Relying on Adegboye v. The State 1 SCJN 207 the respondent contends that the appellant must also fail on this issue.
On respondent’s 3rd issue, learned counsel relies on the definition of the word “corroboration” in Ogunbayo v. The State (2007) 146 LRCN 696 at 703 and submits that appellant’s counsel is simply wrong in contending that the lower court has erred in affirming the trial court’s finding that Exhibits other than Exhibit “7” corroborate the latter. Exhibits 1, 2, 5 and 6, submits learned respondent’s counsel, clearly show the appellant to be an active participant in the commission of the offences. The Exhibits corroborate not only the testimonies of PW1 and PW2 but appellant’s extra judicial statement in Exhibit “7” as well. The 3rd issue, submits learned counsel, be resolved against the appellant. He urges that the appeal be dismissed.
It is glaring that while respondent’s 1st and 3rd issues for the determination of the appeal correspond with appellant’s 1st and 3rd issues, its 2nd issue raises the same questions as does appellant’s 2nd as well. I shall be guided by the issues distilled by the appellant if not for any other reason than the fact that she initiated the appeal which grounds and issues distilled therefrom constitute the plank and reasons that should inform the appeal’s success or failure.
Appellant’s overriding contention is that the fact of her being tortured in the course of recording Exhibit “7” has rendered the statement inadmissible. The two courts contrary decision being reverse must to be set-aside. It is argued by learned appellant counsel that the trial-within-a trial-procedure the lower court held has lawfully informed the trial court’s finding that appellant’s statement, Exhibit “7”,is confessional, stands in breach of Section 36(II) of the 1999 Constitution as well as Section 160 of the Evidence Act. The appellant by the two provisions cannot be compelled to give evidence be it as contained in Exhibit “7” or as a witness in the course of her trial. Sections 27-31 of the Evidence Act which allows for the conduct of a trial-with in-a-trial in facilitating the admittance and use of Exhibit “7” cannot, given the combined effect of Section 1(1) and (3), Section 36(II) and Section 315 of the Constitution subsist.
Learned counsel in reply insists and, correctly too, that the two courts are right in their concurrent findings that Exhibit “7” being the voluntary statement of the appellant is admissible. Learned respondent counsel is also on a firm terrain in his submission that Exhibit “T” cannot be precluded on the basis of appellant’s further contention that the mini trial procedure facilitated by Sections 27-32 of the Evidence Act constitutes a breach of Section 160 of the evidence Act as well as Section 36(11) of the 1999 Constitution.
It must be recalled that at the trial court the appellant, at the point her statement was being tendered by the respondent, objected to its being admitted in evidence. At the end of the trial-within-the trial the court conducted to ascertain the voluntariness of the statement the court concluded its ruling at page 45D of the record of appeal thus:-
“I therefore at this stage for the purpose of the trial-within-trial disbelieve the evidence that the statement sought to be tendered was obtained under duress.
Having said so, the said statement of the second accused is admitted in evidence and it is marked as Exhibit No. 7”.
The appellant urged the lower court in one of the three issues she presented for the determination of her appeal to answer the question whether in its foregoing finding the trial court was right. The lower court after satisfying itself that the trial court before admitting Exhibit “7” had considered the evidence by the prosecution and the defence in the trial-with-in-the trial proceedings, answered the question the appellant raised on the issue at page 284 of the record per Owoade JCA as follows:-
“I do agree with the learned counsel for the respondent in this respect that credibility of witnesses is the essential function of the trial court, which said, heard and watch the witnesses testify. And, that an appellate court does not believe of disbelieve evidence….”
On appellant’s further query that Exhibit “7”, contrary to the decision of the trial court, is precluded by the operation of Section 160 of the Evidence Act and Section 36(11) of the 1999 Constitution, the lower court, again per Owoade JCA who read the lead judgment, held at page 20 of the record:-
“…The admissibility of a confessional statement does not in any way infringe the provisions of Section 36 (II) of the 1999 constitution. The Section provided thus:-
‘(II) No person who is tried for a criminal offence shall be compelled to give evidence at the trial’
Learned counsel for the appellant himself provided an answer to his inquiry on this score when he said that Exhibit “7” was tendered by PW2. From confessional statement is evidence by the prosecution and not from the accused person. It is also so because the evidence is for and in favour of the prosecution since at the stage of trial it is evidence against the accused.”
On its foregoing postulations I cannot agree more with the lower court.
Firstly,the decision on the voluntariness or otherwise of appellant’s confessional statement, Exhibit “7”,unarguably requires the trial court’s assessment of the credibility of the witnesses who testified on the matter. The principle has not changed from what the lower court in its foregoing finding holds it to be.
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 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 record, 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 re-evaluate the evidence on record in order to obviate miscarriage of justice. See Iwuoha v. Nipost (2003) 8 NWLR (pt 822) 308 343-344, Adeye v. Adesanya (2001) 6 NWLR (Pt 708) 1 and Iragunima v. R.S.H.P.D.A (2003) 12 NWLR (Pt 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 same.
It must be stressed that even though Exhibit “7” is appellant’s confessional statement, it is still respondent’s evidence. The testimony of PW2 sustains this fact. The distinction between Exhibit “7”, appellant’s confessional statement, and her evidence at trial in defence cannot be ignored. In Olawole Arogundare v. The State (2009) 6 NWLR (Pt 1136) 165 at 178 my Lord Tobi JSC in his concurring judgment distinguished the two thus:-
“A confessional statement is different from evidence given by a witness in court. While a confessional statement is a pre-trial matter made by an accused person, mostly in pre-trial custody, evidence given by a witness in court is before the face of the trial court one cannot be substituted by the other. The mere fact that the contents by way of facts of both are similar or the same, do not in law make them the same as the legal incidents of acceptability or otherwise of the two are quite different. In confessional statements, the test is its voluntary nature. In evidence in court, the test is relevance, veracity or authenticity.”
Sections 27-31, of the Evidence Act provide for Exhibit “7” being a confessional statement. Sections 36(11) of the 1999 Constitution and 160(a) of the Evidence Act both provide, on the other hand, for the evidence of witnesses in the face of the court at trial. The latter Sections rule appellant’s evidence as DW2 in defence. I agree with learned respondent counsel that appellant’s contention that Exhibit “7” is precluded by the operation of Section 36(11) of the 1999 Constitution and Section 160(a) of the Evidence Act is misconceived.
The concurrent findings of the two courts below that Exhibit “7” being appellant’s voluntary confessional statement as envisaged under Sections 27-31, admissible cannot, be interfered with. See Okoro Abasi v. The State (1992) 10 SCNJ 113.
Lastly, on appellant 3rd issue, it has also been contended that Exhibit “7” cannot, by itself, sustain appellant’s conviction by the trial court as affirmed by the court below. It is further contended that the lower court has erred in its affirmation of the trial court’s decision that Exhibit “1”, “2”, “3”, “5” and “6” corroborate Exhibit “7”.
Again, it must outrightly be stated that a free and voluntary confession which is direct, positive and properly proved is sufficient to sustain a conviction. Though desirable, corroborative evidence is not necessary. Once the court is satisfied with its truth, it can safely convict on the basis of the confessional statement of an accused alone. See Mustapha Mohammed and another v. State (2007) 4 SCNJ 117 and Okon Osung v. The State (2012) 18 NWLR (pt 1332) 256.
On this issue, the lower court at pages 213-214, of the record held:-
“In the instant case, the content of Exhibit “7” for which the learned trial judge found corroboration in Exhibit “1”, “2”, “5” and “6” adequately revealed the role of the Appellant not only as a conspirator but indeed the took place in the house of the PW1 even through the Appellant was not physically present at the scene of crime. Exhibit “7” revealed that the Appellant agreed with the 1st Accused to rob PW1, she monitored the operation without showing up at the scene and not only received some of the proceeds of the Robbery but also kept part of the ammunition used in the Robbery operation. The learned trial judge was perfectly entitled to rely on Exhibit “7” to convict the Appellant. Exhibit “7” was not only corroborated by Exhibit “1”, “2”, “5” and “6” but also by the evidence of PW1 and PW2.”
(Underlining mine for emphasis).
Inspite of the foregoing impeccable findings of the lower court, the court at page 214 of the record concluded as follows:-
“In Olalekan vs. State (2001) 18 NWLR (Pt. 746) 793 at page 824, the Supreme Court per Onu, JSC, held that where a confessional statement is direct, positive and unequivocal as to the admission of quilt by an accused person, the statement is enough to ground the conviction of the accused. See also: Salawu v. State (1971) 1 NMLR 249. Thus, even without those corroborative acts, the Appellant in the instant case could perfectly be convicted solely on her voluntary confessional statement.” (Underlining mine for emphasis).
In endorsing the foregoing conclusion of the lower court which cannot be faulted, I resolve appellant’s 1st and 3rd issues against her.
To fully grasp the import of the submissions of learned appellant counsel under appellant’s 2nd issue, the last to be considered, it helps to reproduce aspects of the testimonies of the appellant and the 1st accused relevant to the point being canvassed by virtue of the issue.
The 1st accused person testified at page 52 of the record of appeal inter-alia as follows:-
“My names are Leonard Okoli ….. The second accused is my wife…On the said 28-1-98, I was coming from Ukpo to Uzoagba to see my wife. As I was about to enter a commercial motorcycle (sic), a man pointed at me as the in-law to Armstrong my father in law. There were some policemen there at Uzoagba, they held me and took me to the police station… I was taken to the House of my father-in-law. The policemen then arrested my wife and I, put us in the vehicle and drove off. I was kept at the Iho Police Station…My wife was taken to the Female section of the cell.” (Underlining mine for emphasis).
Under cross examination, the witness testified at page 53 of the record in part thus:
“……… I was told that PW1 is related to the 2nd accused. It is not true that on the 27-12-98, the 2nd accused introduced me as her husband to PW1. I did not visit Kingsley Jones with my wife on 27-12-98… I did not give the 2nd accused those Exhibits tendered by the police I started marrying the 2nd accused from 1996. I cannot remember the year I married her, it is a long time now. We were still planning to wed in church before this incident. I married her traditionally but cannot remember when.”
(Underlining mine for emphasis).
At pages 54-55 of the record of appeal DW2, the appellant, testified in chief inter-alia thus:-
“My names are Irene Okoli…I know the 1st accused person. He is my husband. We got married in 1997. The marriage was under native law and custom…. I am aware that the 1st accused person and I are being charged with conspiracy and armed robbery.” (Underlining mine for emphasis).
In relation to the foregoing evidence of the two accused persons vis-‘E0-vis the evidence the respondent led through PW1 and PW2, the trial court at page 98 of the record of appeal made a profound finding thus:-
“I find as a fact that there was robbery in the house of PW1 Augustine Chukwunyere; that the 1st and 2nd accused persons each participated in the robbery and played his or her mastery role.Also that the accused persons were never married but partners in crime.”
The 2nd issue the appellant distilled and urged the lower court to consider in determining her main appeal reads:-
“2 Whether the learned trial judge was right in finding that appellant and 1st accused were not married and whether that finding had not occasioned a miscarriage of justice.”
The 3rd ground in the appellant’s notice of appeal from which the issue was distilled is herein under reproduced, devoid of its particulars, for ease of reference:
“GROUND THREE
ERROR OF LAW
The learned trial judge misdirected herself when she purported to find as a fact that:
‘I find as a fact …….. Also that the accused persons were never married, but just partners in crime.’
When there is no shred of evidence to support that finding and thereby denied the appellant of the defence and safeguards provided for under the Criminal Code, the Evidence Act, the African Charter on Human and People Rights and the 1999 Constitution.” (Underlining mine for emphasis).
The lower court’s decision on appellant’s issue that was distilled from the foregoing ground of appeal is to be found at 211-212 of the record of appeal and reads in part thus:-
“The statement of the trial judge at lines 23-26 of page 98 of the record is obiter and cannot be subject of an appeal ……his lordship was not called upon to decide any questions of marriage between the prosecution and the defence. If the evidence on record had disclosed a statutory marriage between the Appellant and the 1st Accused, which was not the case, the learned trial judge would then have been obliged even before any prompting to examine all available defences if any associated with the definition of marriage under the Criminal Code as well as the Evidence Act. In the absence of such evidence not even from the defence by production of a certificate of marriage, the remark of the learned trial judge was on expression of opinion outside the confines of criminal trial before his lordship.” (Underlining supplied for emphasis).
With due deference, I am unable to agree with the lower court’s foregoing conclusion. As rightly defined by the court, “an obiter dictum is a by the side remark made or expressed by a judge in his decision upon a case which remark or opinion is incidental or collateral and not directly upon the question before the court.
In Prince (DR) B.A. Onafowokan & 2 ors v. Wema Bank Plc & 2 ors (2011) 5 SC (Pt 11) 1, this court opined as follows:-
“Obiter dicta reflect, interalia, the opinion of the judge which does embody the resolution of the court. The expression of judgment must be taken with reference to the facts of the case which he is deciding the issues calling for decision and answers to those issues.” See also Bamigboye v. University of Ilorin (1999) 6 SCNJ 324, National Democratic Party (NDP) v. Independent National Electoral Commission (2012) 12 SC (Pt iv) 24 and Abacha v. Fawehinmi (2001) 6 NWLR (Pt 660) 273.
In the case at hand the finding of the trial court on whether or not the appellant is married to the 1st accused cannot be easily ignored as one “that is unnecessary to the decision in the case” before that court. Excerpts of the evidence of DW1 and DW2 earlier reproduced in this judgment clearly allude to the fact of their being married. It is on that note that one agrees with learned appellant counsel that the lower court has erred in its finding that neither the appellant nor the respondent had led evidence on the marriage between them. Learned counsel is also right in his further submission that, the lower court’s inference that the trial court’s finding on the marriage between the appellant and the 1st accused is an orbiter is equally erroneous.
It must be restated here that although a judge or court is not obliged to fish for defences not borne out by the evidence on record, it has long been settled that the court has the duty to fairly and impartially consider any defence raised by a person charged with crime however weak, foolish, unfounded or conflicting the defence is. Any defence to which an accused is, on the evidence entitled to, should be considered however stupid, unreasonable or for whatever it is worth. See Elijah Ukoh v. The State (1972) 5 and 6 SC 89 Nwarga Nwuzoke v. The State (1988) 2 SC (Pt 11) 272 and Fatai Olayinka v. The State (2007) 4 SCNJ 53.
In the instant case it is evident from the record that the appellant and the 1st accused had asserted the fact of their being married. The trial court’s inference that the two were never married but partners in crime is, beyond a mere swipe, a profound finding borne by the evidence on record on the issue.
The court’s disbelief in the evidence of the appellant and the 1st accused in proof of the marriage they asserted between them led to the devastating finding. If the appellant is entitled to any defence under the Criminal Code or the 1999 Constitution by the fact of the existence of a statutory marriage, evidence must abound on the record that they are indeed married in the first place. Marriage of any kind, the trial court has held, does not, from the evidence on record, exist.
The lower court’s finding that appellant’s ground of appeal as well as the issue distilled from the ground, which query the trial court’s non consideration of the defence due to the appellant by virtue of the fact of her being married to 1st accused, are incompetent, it must be conceded to the appellant, is an error. Appellant’s second issue for the determination of the appeal is accordingly resolved in favour of the appellant.
Not all errors in a judgment appealed against, however, result in the setting aside of the judgment and allowing the appeal. Only those errors that have caused miscarriage of justice entitle the appellant to real success in the appeal. See Soleh Boneh Overseas Nig. Ltd. V. Agboola Ayodele & Anor (1989) 2 SC (Pt. 1) 108; Anthony Odiba V. Tule Azege (1998) 7 SCNJ 119) and CSS Bookshops Ltd V. The Registered Trustees of Muslim Community in Rivers State & Ors. (2006) 4 SCNJ 310.
In the instant case, where the trial court’s finding that the marriage between the appellant and 1st accused does not exist draws from the evidence on record and the finding has not been shown by the appellant to be perverse, the resolution of her 2nd issue in this appeal in her favour does not enhance appellant’s fortunes in any way. Her victory is indeed pyrrhic. The appeal which all the same lacks merit is hereby dismissed. The lower court’s judgment is resultantly affirmed.
SC.319/2011
