Mr. Godwin Nyong Udofia V. The State (2016)
LawGlobal-Hub Lead Judgment Report
IBRAHIM MOHAMMED MUSA SAULAWA, J.C.A.
The instant appeal is against the judgment of the High Court of Akwa Ibom State, delivered on October 14, 2013 in charge No. HU/36c/2011. By the said judgment, the Court below Coram Godwin J. Abraham, J; convicted and sentenced the Appellant to death by hanging for murder, contrary to Section 326(1) of the Criminal Code Cap. 38 Volume II, Laws of Akwa Ibom State of Nigeria, 2000.
BACKGROUND FACTS
On November 14, 2011, the Appellant was initially arraigned before the Court below upon a one count charge of murder, to wit.
STATEMENT OF OFFENCE
MURDER, contrary to Section 326(1) of the Criminal Code, Cap. 38 Volume II, Laws of Akwa Ibom State of Nigeria.
PARTICULARS OF OFFENCE
GODWIN NYONG UDOFTA on the 20th day of February, 2011 at Ikpa village in Uruan Local Government Area in the Uyo Judicial Division murdered, EMEH OKON OKODIO.
?Not unnaturally, when the charge was read and explained thereto, the Appellant pleaded not guilty. Trial commenced immediately after entering the plea of not guilty for the Appellant. All in all, four witnesses testified for the prosecution as PW1-PW4
1
respectively. A total of six items were tendered and admitted as Exhibits 1 – 6 respectively. At the close of the prosecution case, a plea of no case submission was made by the defence, which was overruled by the Court below. On December 19, 2012, the Appellant opened his defence and testified as DW1
At the close of the defence, the learned Appellant’s counsel adopted the written address thereof on July 15, 2013. However, in the absence of the defence counsel, his written address was deemed adopted by the Court below. Thus, resulting in delivering the vexed judgment on the said October 14, 2013, to the following conclusive effect:
The entire circumstances of the case shows (sic) very clearly that the accused person killed the deceased…
Indeed the deceased died as a result of the injuries on him by the accused. I hold that the prosecution has proved all the ingredients of murder in this case. I prove that the prosecution has proved the charge against the accused person beyond reasonable doubt. I hereby find the accused person guilty of murder as charged under Section 326(1) of the Criminal Code Cap. 38 Volume II Laws of Akwa Ibom State of
2
Nigeria 2000 as charged and convict him accordingly
ALLOCUTUS:
The accused pleads for leniency. The counsel pleads for leniency on behalf of the accused as he is a family man.
CRIMINAL RECORD: NIL
SENTENCE:
The accused person is hereby sentenced to death. He shall die in a manner to be determined by the Governor. May the Almighty have mercy on him.
See pages 104 – 113 of the Record of Appeal.
Dissatisfied with the judgment in question, the Appellant appealed to this Court. The appeal having been entered on June 17, 2014, the Appellant proceeded to file the brief of argument thereof on June 18, 2014. The said brief spans a total of 13 pages. At page 3 thereof, four issues have been formulated for determination, viz:
ISSUE ONE:
Whether the judgment that was delivered by the trial Judge in charge No. HU/36c/2011 is unreasonable and cannot be supported having regard to the evidence.
ISSUE TWO:
Whether the learned trial judge erred in law when he heard the case on 15 July, 2013 during the absence of the Appellant’s counsel
ISSUE THREE
Whether the learned trial judge erred in law when he
3
adjourned the case for judgment without finding on whether the address of the Respondent’s counsel were served on the Appellant’s counsel to facilitate the filing of a rejoinder or reply on points of law.
ISSUE FOUR:
Whether the learned trial Judge erred in law when he adjourned the case for judgment without affording the Appellant’s counsel an opportunity for rejoinder or reply on points of law.
The issue No. 1 is canvassed at pages 4 – 8 of the brief, to the effect that the vexed judgment is unreasonable and cannot be supported having regard to the evidence adduced at the Court below.
It was submitted, that a charge is said to be proved beyond reasonable doubt, when all the ingredients of the offence are established. Therefore, there is no proof beyond reasonable doubt, where one element constituting the offence is not established. See ONAFOWOHAN V. THE STATE (1984) 3 NWLR (Pt.61) 538 @ 551; ALABI V. THE STATE (1993) SC NJC (pt. 1) 109 @ 111, et al.
?Further submitted, that in the instant case, there is no doubt regarding the fact that the deceased died probably from matchet cuts and due also to excessive bleeding, as may be
4
gleaned from the evidence of PW2, PW3 and Exhibit 3.
However, it is contended that what is outstandingly in doubt is “who killed the deceased”. That the prosecution has throughout the trial failed to establish that it was the act of the Appellant that caused the death of the deceased; the prosecution failed to produce any direct witness that saw the killing of the deceased by the Appellant.
Further contended, that the evidence of PW1, the prosecution star witness, is a mere hearsay, and atmost a speculation which causes serious doubt regarding who actually killed the deceased. That evidence is inadmissible. See OJIAKO V. THE STATE (1991) 2 NWLR (pt. 175) 578 @ 579.
Allegedly, the evidence of the PW2 (IPO) could not link the death of the deceased to the act or omission of the Appellant. That evidence of PW2 shows clearly that he was inept in his investigation. See KADA V. STATE (1991) 6 LRCN 1879 at 884 – 1885.
?The PW3 (Medical Doctor) could not say that it was the Appellant that killed the deceased. The PW4 (IPO) made futile attempt to link the death of the deceased to the Appellant through presentation of a worthless piece of document.
5
Confessional statement (Exhibit 6) marked rejected at the trial within-trial.
It was argued, that the Appellant in his evidence and Exhibit ‘1’ vehemently denied committing the offence of murder. That evidence was allegedly not contradicted by the prosecution. Therefore, the Court must act on that uncontradicted evidence of the Appellant. See GARBA V. ZARIA (2005) 17 WLR (Pt. 953) 55 @ 58, et al.
The issue No. 2 is argued at pages 8 – 9, of the brief to the effect that the presence of accused person’s counsel is compulsory whenever an accused is charged with a capital offence; as in the instant case. It was submitted that as shown on page 103 of the Record, the Appellant’s counsel was absent. That inspite of the absence of the Appellant’s counsel, the Court below adjourned the case for judgment. It is contended that the absence of the Appellant’s counsel on July 15, 2013 is fatal to the proceedings. See UDOFIA V. STATE (1988) 7 SC (Pt. 11) 59 at 63 line 40; MOHAMMED V. THE STATE (2013) 218 LRCN (Pt. 2) 48 @ 57 – 4. The Court is urged to so hold.
The issue No. 3 is canvassed at pages 9 – 12 of the brief, to the effect that the Court below erred
6
in law when it adjourned the case for judgment without finding out whether the address of the Respondent was served on the Appellant’s counsel to facilitate the filing of a rejoinder thereto. See Sections 36(1) and 294(1) of the 1999 Constitution; AMINU MIKA’ILU VS STATE (2001) 8 NWLR (Pt. 715) 468 at 495; KOTOYE v. CBN (1989) 1 NWLR (Pt. 98) 419; BERNARD OKOEBON v. POLICE (2003) 12 NWLR (pt. 834) 444 at 479; BANIG BOYE v. UNILORIN (1999) 70 LRCN, et al.
The issue No. 4 is argued at page 12 of the brief, to the effect that the Court below erred in law when it adjourned the case for judgment without affording the Appellant the opportunity for rejoinder or reply on points of law.
The Court is urged to resolve the issue in favour of the Appellant.
Conclusively, the Court is urged upon to hold that the judgment of the Court below was wholly wrong and against the weight of evidence, and that same should have been entered in favour of the Appellant in discharging and acquitting him.
The Court is equally urged upon to rely on Section 15 of the Court of Appeal Act and step into the shoes of the Court below, determine the unresolved issues based solely on
7
the evidence and argument thereon.
Contrariwise, the Respondent brief filed on April 14, 2015, spans a total of 24 pages. At page 7 thereof, three issues have been couched to the effect, thus:
1. Whether the totality of the evidence adduced by the prosecution during the trial of the Appellant, sufficiently proved the ingredients of the offence of murder against the appellant.
2. Whether the judgment of the trial Court delivered on 14 October, 2013, and in this Charge was unreasonable and against the weight of evidence that was adduced at the trial.
3. Whether the learned trial judge was in error, when he heard the case on 15th July, 2013 and thereafter adjourned same for judgment, in the absence of a rejoinder on points of law, filed by the Appellant’s counsel.
The issue No. 1 is canvassed at pages 7 – 10 of the said brief, to the effect that the evidence so far adduced, linked the Appellant to the offence. That Exhibit 1, a clear admission of the crime, gives a clear picture of how the deceased met his death and the role the Appellant played in the execution thereof.
?It was submitted, that Exhibit 1 corroborates the evidence of
8
the prosecution witnesses and Exhibit 2, to the effect that the Appellant committed the offence. See OLAWOYO VS STATE (2012) 17 NWLR (pt. 1329) 346; MOHAMMED VS STATE (1992) NWLR (Pt. 528) 399.
It was contended, that the evidence adduced by the prosecution sustained the charge against the Appellant, as all the ingredients were proved. The Court is urged to resolve issue No. 1 in favour of the Respondent.
The issue No. 2 is canvassed at pages 19 – 15 of the brief to the effect that the available circumstance in this case, is unequivocal, positive and points to no other direction than the fact that it was the Appellant that killed the deceased. See AMUSA v. THE STATE (2005) 1 NCC 87 @ 91.
The Court is urged to so hold.
The issue No. 2 is argued at pages 10 – 15 of the brief, to the effect that the available evidence in this case has proven the ingredients of the offence against the Appellant beyond reasonable doubt. That, it was the act of the Appellant that caused the death of the deceased. SeeAMUSA V. THE STATE (2005) 1 NCC 87 @ 91.
?It was submitted, that the evidence of PW1 is not hearsay, and cannot be so classified, because
9
after the information given to him about his father?s death, he actually saw the father and the matchet injuries given to him by the accused person. The fact that PW2 did not produce Bassey Ita James goes to no issue. See OLUWATOBA v. STATE (1985) 2 SC 361, 362 paragraph 25, 365 paragraph 5, et al.
Further submitted, that the evidence of PW3, who carried out the examination of the cause of death of the deceased was not destroyed during cross-examination. As an expert, the witnessing of a killing is not one of the qualifications for the competence of PW3. See AZU V. STATE (1993) NWLR (PT. 199) 303 @ 311, et al.
It was contended, the fact that the Appellant had denied making Exhibit ‘1’ vis–vis the commission of the offence, is of no benefit to him, in the face of the uncontradicted evidence linking him to the murder. The Court is urged to resolve the issue No. 2 in favour of the Respondent.
The issue No. 3 is canvassed at pages 15 – 22, to the effect that there is no evidence on record tending to show that the Appellant was deprived of any opportunity to defend himself by the Court below, or that the trial was conducted in his
10
absence or the counsel thereof. Except that the defence counsel took the decision to absent himself on the date scheduled for the adoption of the addresses of both counsel. See pages 95 – 113 of the record.
It was submitted, that the non-issuance of the hearing notice on the Appellant’s counsel before July 15, 2013, and subsequently before the judgment was delivered, would not amount to a breach of fair hearing, to render the proceedings of the Court below null and void. According to the Respondent’s counsel, this is because:
The defence counsel willfully absented himself from the hearing.
It was contended, that the duty of the Court is to provide a level ground and give everybody the environment within which to ventilate his claims and defences. The Court will regard delay of indolence of a party either as fatal to his case or as amounting to a waiver of his right under the maxim that equity helps only the vigilant. See AG- RIVERS STATE v. UDE (2006) 7 KLR (Pt. 223) 2713 @ 2718, et al.
It was further contended, that the cases of UDOFIA V. THE STATE (supra) and MOHAMMED V. STATE (supra) are distinguishable from the present case.
?The
11
case of Udofia vs State (supra) allegedly had to do with the mandatory legal representation of an accused in a capital offence. That in Udofia’s case, the defence counsel failed to discharge his duty diligently, thus rendering the right of the accused to counsel, hollow and meaningless.
Contrariwise, in the present case, the Appellant allegedly had representation throughout the trial and in a conducive atmosphere.
Conclusively submitted on the issue, that the absence of the Appellant?s counsel from Court on the day scheduled for adoption of addresses, and the subsequent delivering of the judgment in the absence of a rejoinder, is not a sufficient ground to declare the entire proceeding a nullity by this Court, as same did not occasion any miscarriage of justice.
The Court is urged to discountenance all the issues raised against the judgment of the Court below, and accordingly dismiss the appeal.
?I have accorded an ample consideration upon the nature and circumstances surrounding the appeal, the submissions of the learned counsel contained in their respective briefs of argument vis-a-vis the record of appeal, as a whole. It is obvious
12
from the record of the appeal, that the issues raised in the respective briefs of argument of the parties are not mutually exclusive. Thus, I have deemed it expedient to adopt the four issues raised in the Appellant’s brief for the determination of the appeal, anon.
However, I have taken cognizance of the fact that the questions raised in issues 2, 3 & 4 of the Appellant are very fundamental thereby bordering on breach of fair hearing. Thus, I have deemed it expedient to determine them first and foremost, before dealing with issue No. 1, if necessary.
ISSUES NOS 2, 3 & 4
The second issue raises the vexed fundamental question of whether or not the Court below has erred in law when it heard the case on July 15, 2013 during the absence of the Appellant’s counsel. The said issue is distilled from the additional ground one of the notice of appeal.
The third issue equally raises the fundamental question of whether or not the Court below erred in law when it adjourned the case for judgment without finding out whether the (written) address of the Respondent’s counsel was served on the Appellant’s counsel to facilitate the filing of a
13
rejoinder or reply on points of law. It is distilled from the additional ground 2 of the Notice of Appeal.
The fourth issue raises an equally fundamental question of whether or not the Court below erred in law when it adjourned the case for judgment without affording the Appellant’s counsel an opportunity for rejoinder or reply on points of law. It is distilled from the additional ground 3 of the notice of appeal.
Instructively, on June 24, 2013, when the case came up for address, both the Appellant and the accused thereof, Mfon Udeme, Esq., were in Court. The Respondent was equally represented by Kingsley Umo, Esq. Mr. Udeme informed the Court that he had filed a “Final Written Address on 14/6/2016”. On his part, Mr. Umo applied for an adjournment of the case due to the fact that Mr. Udeme’s final written address was served on him that morning. Consequent whereupon, the Court below adjourned the case to “15/7/2013 for adoption of addresses”.
On the said 15/7/2013, when the case came up for adoption of the written addresses filed by the respective counsel, the Appellant was present in Court. The Respondent was represented by Kingsley Umo, Esq.
14
However on the face of the Record, the Appellant’s counsel was absent from Court. No reason was recorded explaining the absence of the Appellants’ counsel.
Without much ado, Mr. Umo submitted thus:
We filed a Reply on 11/7/2013. We adopt same as our argument.
Consequent upon which, the Court below ordered to the following effect:
COURT: The written address filed by the defence counsel is deemed to have been adopted. The case is adjourned to 14/10/2013 for judgment.
See page 103 of the Record.
The submission of the Appellant’s learned counsel, is to the unmistaken effect that the hearing of the case on 15/07/2013 in the absence thereof, and the subsequent delivering of the judgment on 14/10/2013, is fatal to the entire proceedings of the Court below. Not unnaturally, the Respondent does not seem to agree with that submission.
I have critically, albeit dispassionately, considered the submissions of the learned counsel contained in the respective briefs thereof vis-a-vis the entirety of the record of appeal itself. Most particularly, the proceedings of the Court below are contained at pages 70 – 113 of the record of appeal.
15
It is evident on the record, that on 28/11/11, when the plea of the Appellant was recorded and PW1 testified to 14/10/13, when the judgment was delivered the Court below had sat twenty-three (23) times, to wit:
(1) 28/11/2011;
(2) 07/12/2011
(3) 16/01/2012
(4) 22/02/2012
(5) 08/03/2012
(6) 02/04/2012
(7) 18/04/2012
(8) 03/04/2012
(9) 16/05/2012
(10) 28/05/2012
(11) 07/06/2012
(12) 28/06/2012
(13) 19/07/2012
(14) 02/08/2012
(15) 28/11/2012
(16) 19/12/2012
(17) 21/02/2013
(18) 19/03/2013
(19) 16/04/2013
(20) 30/04/2013
(21) 27/05/2013
(22) 24/06/2013
(23) 15/07/2013
Throughout the duration of the trial, the Court below did not sit on 06/11/2012 and 24/01/2013.
As copiously alluded to above, on 24/6/2013, the Appellant’s counsel, MR. Udeme, submitted that he had filed the Written Address, thereof on 14/6/2013. However, the prosecution counsel, Mr. Umo, submitted he was served with Udeme’s written address only that morning (24/6/2013). Thus, he applied for an adjournment to enable him file and serve the written address thereof.
16
Consequent whereupon, the Court below deemed it expedient to adjourn the case to 15/7/2013 for adoption of written addresses. See pages 102-103 of the record.
Now, when the case came up on the said 15/07/2013 for adoption of written addresses of the respective learned counsel, the Appellant’s counsel was inexplicably absent. On the face of the record, the prosecution counsel submitted thus:
Mr. Umo: We filed a Reply on 11/7/2013. We adopt same as our argument.
Most unfortunately, there is no indication, whatsoever, that the Reply filed by the prosecution counsel on 11/7/2013 had in fact been served on the defence counsel prior to the 15/07/2013. There is no reason available on the record informing the defence counsel’s absence from the Court on that date.
Yet, the Court below in its wisdom proceeded to order, thus:
COURT: The written address filed by the defence counsel is deemed to have been adopted. The case is adjourned to 14/10/2013 for adjournment.
See page 103 of the record.
?There is no indication, on the face of the record, that the necessary hearing notice for the delivery of judgment reserved or adjourned to
17
14/10/2013 had been served upon the defence counsel. It was the submission of the Respondent’s learned counsel (page 18, paragraph 6.3 of the brief thereof) that:
The non-issuance of the Hearing Notice on the Appellant’s counsel by the Court before the 15th July, 2013 and subsequently before the judgment in the circumstance of this case, will not amount to a breach of fair hearing, to render the proceedings at the lower Court null and void, and the result being set aside. Aside, defence counsel willfully absented himself from the hearing.
For the above obvious reasons, I am unable to uphold the foregoing submission of the Respondent’s learned counsel. Indeed, it is a trite fundamental principle of law, that in the determination of his civil rights and obligation, including any question or/determination by or against any government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or Tribunal duly established by law in such manner as to secure its independence and impartiality. The law is equally fundamentally trite, that every person who is charged with a criminal offence is entitled to be accorded
18
adequate time and facilities for the preparation of his defence and to defend himself in person or by a legal practitioner of his own choice. See Section 36(1), (5) & (6) of the Constitution of the Federal Republic of Nigeria 1999, as amended.
The implication of the foregoing provisions of Section 36(1), (5) and (6) of the 1999 Constitution, is that the person so charged shall not be convicted (found guilty) of any offence without being accorded an ample opportunity to defend himself at the trial. Especially in a murder charge, an accused is not restricted in the consideration of his defence raised by him, but it is open to the Court to take into consideration other defences available to the accused on the facts preferred or established before the trial Court. On the part thereof, the appeal Court is equally duty bound to consider all the defences open to the Appellant on the facts established in the trial Court, in spite of the fact that such defence or defences were not considered in the lower Court. See OJO V. STATE (1973) 11 SC (Reprint) 199; (1973) LPELR- 2385 (SC) per Sowemimo, JSC (as the learned Lord then was, of blessed memory) @ 9 paragraphs
19
E-G.
Of course, it is a trite general principle, that the Court, as a Court of law and equity, will not aid an indolent, That where a party in a case stays away from the trial he cannot complain of breach of fair: hearing in the event of the Court deciding to proceed with the trial in spite of the absence thereof. See ALAGHE v. MOHAMMED (2003) 4 NWLR (Pt. 432) 45 @ 456; UDEORAH v. NWAKOBI (2003) 4 NWLR (pt. 811) 643 @ 672.
However, in the instant case, while the Appellant was in Court on the said 15/07/2013, the counsel thereof was inexplicably absent. There’s no evidence on record that he had been served with the prosecution counsel’s Reply prior to that date. In the circumstance, it was neither prudent nor justified, for the Court below to adjourn the case for judgment. Considering the fact that the defence counsel was entitled to file reply to the prosecution counsel’s written addresses (Reply), the Court ought to have served him with a notice for the adoption of the written address(es) thereof.
In the case of UDOFIA VS STATE (1988) LPELR- 3305 (SC) it was held by the Apex Court that:
It is fundamental to a fair trial of a serious
20
criminal charge like murder that the accused person should not be left unrepresented, at any stage of the trial: R.V. MARY KINGSTON (1948) 32 CR. App R. 183. Per Oputa, JSC @ 14 paragraph A.
In the instant case, in the absence of any proof of service of the prosecution’s written address (Reply) on the defence counsel, it was most improper to say the very least, for the Court below to simply adopt the defence counsel’s written address and adjourn the case for delivery of judgment. The defence counsel was entitled to file a reply to the prosecution counsel written address (Reply) on points of law. See Section 335 of the Criminal Procedure Law Cap. 39, Laws of Akwa Ibom State, 2000.
What’s more, it is a trite principle, that the Court below has no power under the criminal procedure to deem the Appellant’s address as adopted. See AMINU MIKAILU v. STATE (2001) 8 NWLR (pt. 715) 468 @ 495 wherein it was held that-
The practice of delivering written address without reading in the open Court is null and void and unconstitutional.
By virtue of the provisions of Section 294(1) of the 1999 Constitution (supra):
Every Court established under this
21
Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnished all parties to the cause or matter determined with due authenticated copies of the decision written seven days of the delivery thereof.
As alluded to above, the prosecution counsel address could not be considered as the final address in view of the fact that the defence counsel was entitled to file a rejoinder or reply thereto, on points of law.
The principle is well settled, that where a party fails to adopt his written address, the submission therein cannot be deemed as adopted in determining the submission thereof. Contrariwise, such an unadopted written address will be deemed abandoned. See GOAR V. DOSUN (2009) LPELR-4265 (CA) @ 26-27 paragraphs D-A; OKEREKE V. YAR’DUA (2008) 12 NWLR (Pt. 1100) 95 @ 127 paragraphs E-G.
In the circumstance, each of the issues 2, 3 and 4 ought to be, and are hereby resolved in favour of the Appellant.
?Hence, having resolved issues 2, 3 and 4 in favour of the Appellant, there is no gain-saying the fact, that the instant appeal is meritorious, and ought to be
22
allowed by this Court. And I so hold.
At this point in time, it has become so obvious, that this Court is devoid of competence to proceed to determine the issue No. 2 on the merits, in the light of resolving issues 2, 3 and 4 in favour of the Appellant. And the reason is not far-fetched! Indeed, it is a well settled doctrine, that once it is determined that a party’s right to fair hearing, as cherishingly guaranteed under Section 36(1) of the 1999 Constitution (supra) has been flagrantly breached and denied, the totality of the proceedings of the trial Court becomes vitiated with a fundamental irregularity which renders them null and void, and of no consequence whatsoever. SeeOJENGBEDE V. ESAN (LOJA-OKE) (2001) 12 SC (pt. 11) 1; (2001) 18 NWLR (Pt. 746) 771; (2001) LPELR- 2372 (SC) @ 14 – 15.
Consequently, the judgment of the Akwa Ibom State High Court coram, Hon. Justice G.J. Abraham delivered on October 14, 2013, is hereby set aside. The Appellant is hereby discharged of the charge against him.
?However, considering the fact that the appeal succeeded only on the ground of breach of right to fair hearing of the Appellant, it behoves the
23
Court to order for a retrial by the Court below to be presided over by a different judge of the Court.
Consequent whereupon, it is ordered that the case No. HU/36C/2011: THE STATE VS. GODWIN NYONG UDOFIA be and is hereby remitted to the Chief Judge of Akwa Ibom State High Court for re-assignment to another judge of the same Court, for retrial de novo on the merits.
Other Citations: (2016)LCN/8776(CA)
