Nonso Okeke V State (2016)

LAWGLOBAL HUB Lead Judgment Report

MUSA DATTIJO MUHAMMAD. JSC

This is an appeal against the judgment of the court of Appeal, Lagos Division, hereinafter referred to as the court below, affirming the conviction and sentence of the appellant by the High Court of Lagos State, the trial court, in charge No. LCD/56/2006. Whereas the trial court’s judgment was delivered on 13th day of April 2010, the lower court’s judgment being appealed from to this Court on thirteen grounds was delivered on 25 June 2012. A brief summary of the facts leading to this appeal is given at once below. Respondent’s case is that appellant conspired with one Nkenna Onyegbu, now deceased, to murder Chinwe Ofomata. Two witnesses gave evidence to prove the case against the appellant: PW1, Ubaka Onyegbu the brother of Chinwe Ofomata, killed on the 28th October 2004 and PW2, the investigating police officer from the Yaba Police Station Criminal Investigation Department. The prosecution’s case is built on Exhibits A-A2 and B, appellant’s statements at Festac and Panti Police Stations respectively. The trial court, which decision the tower court affirmed, found the statements confessional. A further reliance was placed on Exhibit D, the post-mortem medical report and a black cable used by the appellant and his co-conspirator to strangle their victim. The appellant denied conspiring and murdering Chinwe Ofomata. He also denied making the statements tendered as his and recorded on the 13-11-2004 at the Panti Police Station. It is further his case that, along with Nkenna Onyegbu, he was moved from Festac Police Station to the Panti Police Station where on the 17th – 11 – 2004, Nkenna died in the cell. It was on 25/11/2004, after he had been left in the sun all day long, that the police requested him to write his statement. He was too weak to write the statement. He neither volunteered nor signed any statement to the police. The appellant maintains that he was taken to the Magistrate Court the next day. He was subsequently arraigned before the trial court for trial at the conclusion of which he was convicted for conspiracy and the murder of the deceased contrary to Sections 324 and 319 (1) of the Criminal Code Law CAP 17 Laws of Lagos State 2003. The affirmation of the trial court’s judgment by the lower court brought about the instant appeal. At the hearing of the appeal, parties having earlier filed and exchanged their briefs adopted same as their arguments for and against the appeal. The four issues formulated at pages 3 – 4 of the appellant’s brief read thus:- “1. Whether the three issues re-formulated by the learned Justices of Court of Appeal upon which the appeal was decided adequately covered all the grounds of appeal filed by the appellant, and if it did not, whether the error occasioned a miscarriage of justice against the appellant? 2, Whether the learned Justices of the Court of Appeal were right in finding that the arraignment of the Appellant at the trial court was in accordance with Section 215 of the Criminal Procedure Law of Lagos State? 3, Whether the learned Justices of the Court of Appeal were right to have upheld the conviction of the Appellant based on Exhibit B? 4. Whether learned trial Justices of the Court of Appeal were right to have upheld the conviction and sentence of the Appellant based on the perverse findings of the learned trial judge?” The three issues the respondent distilled for the determination of the appeal at page 3 of its brief read:- “1. Is the lower Court clothed with authority to re-formuiate issues distinct from those formulated by parties so as to adequately cover all grounds of appeal and any resultant miscarriage of justice in the instant appeal? 2. Is the finding of the lower Court that the arraignment of Appellant was valid and proper in law right? 3. Whether the judgment of the lower Court was premised on Exhibit B and perverse findings of the learned trial Judge?” Arguing appellant’s 1st issue, learned counsel submits that though the lower court is empowered to re-formuiate appellant’s issues for the determination of the appeal, it is necessary that the issues as re-formulated capture the key issues the appellant raises in the appeal. The five issues the appellant distilled from his grounds of appeal and urged the court to resolve in his favour attack the trial court’s finding of guilt against the appellant at interlocutory stage and the remaining perverse findings of the court in the course of evaluating the evidence led by the parties. The issues as reframed and resolved by the lower court, having left out appellant’s critical complaints and caused miscarriage of justice, it is contended, goes to the root of the court’s judgment. Learned counsel supports his contention with the decisions in Nwana V F C.D.A (2004) 13 NWLR {Pt 889) 128 and Erhahon V Erhahon (1997) 6 NWLR (Pt 510) 667 and urges that, on resolving the issue against the respondent, the appeal be allowed. On appellant’s 2nd issue, it is submitted that the arraignment of the appellant, which on the record does not show that the heads of charge had been explained to him by the trial court, stands in breach of Section 215 of the Criminal Procedure Law of Lagos State and is accordingly void. Appellant’s arraignment that is so improper renders his entire trial a nullity. Referring to page 24 of the record of appeal and inter-alia Idemudia V State (1999) 7 NWLR (Pt 610) 202, Christopher Tobi Okolie V The State (2012) 1 NWLR (Pt 1218) 385; Okeke V State (2003) 15 NWLR (Pt 842) 25 and Kalu V State (1998) 13 NWLR (Pt 294) 385, learned counsel urges that the issue be resolved in appellant’s favour and his trial and conviction consequent to the improper arraignment be declared a nullity. Appellant’s arguments under his 3rd issue are three pronged. Firstly, the trial court did not conclude the trial-within-the-trial commenced soon after the appellant had indicated that Exhibit B, appellant’s purported confessional statement, was not voluntarily made. Admitting the statement into evidence before concluding the trial-within-the-trial procedure, it is contended, negates the admission of the statement. The lower court’s affirmation of the trial court’s conviction of the appellant founded on the inadmissible document cannot, therefore, persist. Secondly and without necessarily conceding that the trial-within-the-trial procedure had been concluded by the trial court, learned counsel submits, the court did not at the end of the procedure pronounce upon the admissibility or otherwise of the statement, Exhibit B. And lastly, learned counsel contends, even If Exhibit B is rightly admitted, the law further requires that the trial court convicts the appellant not only on his statement but on such further evidence outside the confessional statement which corroborates the fact that the appellant had indeed committed the offences he stands trial for. The lower court is wrong to have affirmed the trial court’s judgment that proceeded on these wrong premises. Relying on Iko V State (2001) 7 KLR (Pt 126) 2419, learned counsel urges that the issue be resolved in appellant’s favour and his wrong conviction quashed. Under their 4th issue, learned appellant counsel contends that the trial court’s judgment contains so many findings which are not borne out of the evidence on record which findings the lower court in its own judgment affirmed inspite of the miscarriage of justice they caused to the appellant. Learned counsel specifically refers to the trial court’s findings at page 79 lines 4-5 and lines 20-22, page SO lines 9-12, page 82 lines 3-8 and lines 14-20 which are findings of the trial court that are not on the basis of the evidence led by parties before it. These findings, it is submitted, have variously been affirmed by the lower court. The lower court also affirmed the admissibility of Exhibit D after its rightful rejection of Exhibit A – Al on the grounds of their being documentary hearsay. Different principles of law, learned counsel contends, cannot govern the same circumstances. Relying on Lado V State (1999) 9 NWLR (Pt 619) 369 and Ndidi V State (2007) ALL FWLR (Pt 381) 1617 at 1645, learned counsel urges that these findings of the two courts though concurrent be set-aside for their being perverse. On the whole, it is urged that the appeal be allowed. Arguing its first issue in response to appellant’s position, learned respondent’s counsel submits that an appellate court, guided by the Justice of the case, may adopt or reframe issues for the determination of an appeal. The issues as adopted or reframed by the court must however not only arise from valid grounds of appeal but adequately address the grievance in the appeal as well. Thus where the appellate court finds the issues upon which it is urged to determine the appeal either verbose or clumsy, it may reframe the issues not only to narrow down the issues in controversy between the parties but also to attain accuracy, clarity and brevity. The lower court in reframing appellant’s issues for determination, argues learned respondent’s counsel, has been primarily guided by the justice of the matter between the parties in the appeal. The court’s subsequent judgment is, for that reason, beyond reproach. Relying on the decisions in Mr. Ademola A. Odutola & ors V Professor Akin Mabogunje & ors (2013) LPELR-19909 (SC), Musaconi Limited V Mr. H, Aspinall (2013) LPELR-20745 (SC). African International Bank Ltd V Integrated Dimensional System Ltd & ors (2012) 11 SCM 1 at 24-25 and Unity Bank Plc anor V Edward Bouari (2008) 2 SCM 193 at 240, learned counsel prays that the issue be resolved in favour of the respondent On its 2nd issue, learned respondent counsel contends that the trial court’s omission to record that it had explained the head of charge to the appellant does not render the trial null and void. The arraignment of the appellant as recorded on page 24 of the record of appeal, it is submitted, neither offends the provision of Section 215 of the Criminal Procedure Law nor Section 36(6)(a)(b)(c) of the 1999 Constitution as amended. The lower court is right, it is further submitted, in its reliance on the decisions of the apex court in Eyisi V The State (2000) 15 NWLR (Pt 692) 555 and Idemudia V The State (1999) 7 NWLR (Pt 610) 202 while affirming the trial court’s judgment Further citing and relying on Ogunye V The State (1999) 5 NWLR (Pt 604) 548 at 567 and Toyin Omokuwajo V Federal Republic of Nigeria (2013) 2-3 sc (Pt 1) 184 at 204, learned counsel submits that learned appellant counsel is wrong in his insistence that appellant’s trial as affirmed by the lower court inspite of its not being in breach of Section 215 of Criminal Procedure Act be set aside. Counsel urges that the 2nd issue be resolved against the appellant also. On the 3 issue, it is submitted that the lower court’s affirmation of the trial court’s findings and reliance on Exhibit B, appellant’s confessional statement, are well grounded in Law. The fact of the lower court’s rejection of Exhibits A-Al and Exhibit D should not forestall the acceptance of Exhibit B in evidence. Different principles apply to the different documents and the conclusions of both courts on them are unassailable. On the authorities, including Federal Republic of Nigeria V Faith Iweka (2011) LPELR-9350 (sc), Ojegele V The State (1988) 1 NSCC 276 and Queen V Obiasa (1962) 1 ALL NLR 651, learned respondent counsel further submits, both courts are empowered to convict the appellant solely on his confessional statement that is direct. Having done so, the decisions of the two courts, learned counsel concludes, remains enduring. He urges that the unmeritorious appeal be dismissed and the judgment of the lower court affirmed. My lords, the appeal will be determined on the basis of the three issues distilled and urged upon the court by the respondent. Beyond addressing appellant’s complaints against the lower court’s judgment, they also subsume appellant’s seemingly superfluous fourth issue. And the issues will be considered seriatim. Both counsel in the appeal are right that an appellate court may, where it deems the issue or issues formulated for the determination of an appeal incapable of serving the interest of Justice, reframe or formulate new issues for the determination of the appeal. Learned respondent counsel is further on a firm terrain in the submission that the court is entitled to reframe the issue or issues formulated by parties in order to give the issue or issues precision and clarity. The rule however remains that although the appellate court has the discretionary power of reframing or formulating issues for determination different from those raised by the parties in their briefs, the reframed or formulated issues must be derived from or culled from the grounds of appeal filed by the parties. See Duwin Pharmaceutical & Chemical Co Ltd V Beneks Pharmaceutical and Cosmetic Ltd & others (2008) 2 SCNJ 1 and Yadis Nig Limited V Great Nigeria Insurance Company Limited (2007) 5 SCNJ 86. The appellate court’s power to reframe issues for determination of an appeal before it, though extant, is advisedly exercisable in limited circumstances, [n reframing issues for the determination of an appeal, the appellate court must observe due constraints in order to secure the fundamental basis of the appellate system and most importantly guarantee the rights of parties to fair hearing in a dispute under the Constitution. For all these, one must agree with learned appellant’s counsel that in reframing issues for determination of an appeal the court’s omission to consider and resolve any of the issues which agitate the appeal, in the absence of any valid reason, will be fatal to the court’s judgment. Even the Supreme Court, where it decides not to consider any issue raised by the parties to an appeal, is duty bound to state why. See Edem V Canon Balls Ltd (2005) 12 NWLR (Pt 938) 27. In Ogbuanyinya V Okudu (No 2) 1990 4 NWLR (Pt 146) 551 this Court while adopting two out of the four issues formulated by the appellant to determine the appeal had to give reasons for the preference thus:- “I shall for the purpose of this judgment consider issues (a) and (b) together with the question of presumption I wilt then deal with the issue of who has the burden of proof as to whether the writ of summons was signed by a Judge. The two issues in my opinion adequately cover all the grounds of appeal filed” See also Bankole V Pelu (1991) 8 NWLR (Pt 211) 523 at 537-538. It must now be answered if at all, the lower court had reframe the issues which parties distilled and urged for the determination of their appeal and in so doing whether the court stands in breach of any principle. After reproducing the issues distilled by both sides, the court per Bage, JCA, with whom Akaahs and Okoro JJCA (as they then were) concur, observed at pages 183-184 of the record of appeal thus:- “On a careful examination of the issues raised by the parties for determination, this Court will adopt the three (3) issues formulated by the Respondent with some modification. The issues as formulated by the Respondent, is found to have captured all the matters in controversy in this appeal. The issues as formulated by the Appellant are repetitive and boring, and hence the need to merge them up with the Respondent’s to make way for easy management of the appeal. I find the strength to do so in the decision of the Supreme Court in Biarika vs. Edeh Ogwuile (2002) WRN lot 25- 26: (2001) 12 NWLR (Pt 726) 235 at 265 where in it was stated: ‘Indeed, most of the points raised by the appellant in their grounds of appeal from which their issues were distilled apart from being tautologies and repetitive, are boring their dovetailing effect. Hence, my having to merge the several issues formulated to make their consideration more manageable in this judgment and to make them no (sic) pungent, shorten (sic) and to the point”‘ Armed with the foregoing, their lordships proceeded at page 184 of the record as follows:- “To my mind the issues for determination are as follows: (1) Whether the fair hearing of the Appellant was guaranteed on his arraignment before the trial court. (2) Whether the admission of Exhibits A – Al and Exhibit B by the trial court was right and proper in law. (3) Whether the Respondent led cogent and credible evidence in proving the guilt of the Appellant beyond reasonable doubt.” My examination of the issues distilled by the appellant at pages 181 – 182 of the record, bears out the lower court on the matter. The foregoing issues preferred by the lower court clearly subsume the issues distilled by the appellant and bring out the controversy the appeal agitated more lucidly. Learned respondent’s counsel is certainly right that in preferring the issues distilled by the respondent, giving the issues a slight slant and considering the very same issues in determining the appeal before it, the lower court is not in breach of any known principle of law. As learned respondent counsel further submitted, the court only did the needful, for the sake of justice, by bringing out the issues in controversy between the parties more lucidly thereby facilitating a clearer resolution of the issues the appeal agitated. The court in abiding by the decisions of this Court on the matter inter-alia in Biarika V Eden Ogwuile (supra) and Ogbuanyinya V Okudu (supra) Bankole V Pelu (supra) and Edem V Canon Balls Ltd (supra) cannot be said to have erred. It is for all these that the first issue is resolved against the appellant. The last two issues in the appeal do not merit more than some passing resolution from this Court. Our jurisprudence is replete with seemingly endless decisions of this very Court on the two issues as canvassed by the appellant. By his 2nd issue, the appellant’s sole grudge is that given the clear words which make up the mandatory provision of Section 215 of the Criminal Procedure Law applicable to Lagos State, the omission by the trial court to record that it had read and explained the charges to the appellant before taking his plea goes to the root of appellant, trial. The lower court, appellant contended, is wrongtohaveheldotherW.se. I disagree. The arraignment of the appellant as recorded at page 24 of the record of appeal meets the standard outlined by this Court in a plethora of decided cases and in no way offends neither provision of Section 215 of the Criminal Procedure Law of Lagos State nor Section 36(6) of the 1999 Constitution. In Sunday Amala V The State 18 NSCQR 834 this Court in interpreting the provision of Section 215 of the Criminal Procedure Law under reference frontaliy held per Iguh, JSC (as he then was) at pages 864 – 865 of the report thus:- “in this connection I need to stress that there is no provision of Section 125 of the Criminal Procedure Act which stipulates or make it mandatory that a note shall be made in the record of proceedings to the effect that a charge was read over and explained to an accused person to the satisfaction of the trial court before his plea was taken. What the law enjoins the trial court to do is to satisfy itself that the accused on the charge being read over ond expigined to him understands the nature of the charge before he pleaded thereto. In my opinion, the test with regard to this requirement is subjective and not objective.” In availing itself the foregoing decision of this Court in its consideration of appellant’s grouse regarding his arraignment, the lower court at page 196 of the record dutifully proceeded thus:- “I find this lucid exposition of his lordship Ipuh (JSC) (as he then was) on this subject in all fours with this point, in the instant appeal. The charge from the record was read to the appellant in English Language, which was the language of communications during his trial. His counsel was present in court. He took his plea to the charge, based on his clear understanding on what was being put forward to him. If the record of the court did not show that the charge was explained, the purport of which was to make him understand what he was pleading to. The appellant never said he had not understood the charge read to him before his plea, the failure or omission to specifically state that on the record of the court on the authority of Amala vs. The State supra. will not vitiate the plea he took and rendered his arraignment null and void.” (Underlining supplied for emphasis). I cannot agree more. Running through all the decisions of this Court on the point, the principle has been held to be that it is a good and desirable practice for a trial judge to specifically record that the charge was read over and explained to an accused person to the court’s satisfaction before pleading thereto. It is indeed not the requirement of the law that an omission to expressly record that the charge was read over and explained to the accused before his plea was taken, as the appellant now insists, renders the trial a nullity. The law only requires a trial court to satisfy itself that on reading and explaining the charge to him, the accused understood same before asking him to plead. See Ogunye V State (1999) 5 NWLR (Pt 604) 548-567; Emmanuel Oiabode V The State (2009) 5 NWLR 315 at 319-321; and Toyin Omokuwoju V Federal Republic of Nigeria (2013) 2-3 sc (Pt 1) 184 at 204. These authorities not only bind the lower court but this Court as well. In the case at hand where appellant’s complaint is against the decision of the lower court which abides the decisions of this Court on the point, appellant’s appeal on that note must fail. The 2nd issue is accordingly resolved against him. In considering the 3rd issue for the determinations of this appeal it is significant to restate that from the record of appeal the voluntariness or otherwise of the confessional statement of the appellant had ceased being in issue at the trial court. The lower court commendably found this much. At page 206 of the record the lower court made a very profound finding in this regard thus;- “Both the appellant and the Respondent did not support the conduct of trial within trial by the court. Both are at consensus ad idem on the fact that the controversy that surrounds those statements of the appellant is not as to their voluntariness. The issue is that the appellant had denied making those statements to the police which renders the trial within the trial unnecessary.” Quite admirably the court proceeded thus:- “The law is settled on the conduct of trial within trial. Only where an issue arises as to whether a confession was made voluntarily should the exceptional procedure of holding a kind of trial within trial be adopted by the trial court such procedure is inappropriate and should not be followed, where the issue is whether the accused made a statement attributed to him or whether such statement was correctly recorded. See: The Queen V Imadebhor Eguabor (1962) 1 ALL NIR 287 at 288………….the trial court’s….. admission of Exhibits A -Al and B still stands in Law.” The appellant’s contention under the 3rd issue is that the two courts below are wrong in admitting Exhibits A- Al and B without resort to the trial-within-a-trial procedure and further relying on the statements to convict the appellant without the necessary corroborative evidence in place. On their part, the respondent very rightly argues that it has been settled in a long line of authorities that, in appropriate cases, an accused person may properly be convicted on his or her confessional statement alone. Learned respondent’s counsel is also correct in his submission that although it is desirable for the trial court to avail itself with some evidence outside the confessional statement in proof of the offence, the absence of such additional evidence would not be fatal to the trial court’s conviction of the accused on the confessional statement provided the confession is positive, direct and unequivocal. Learned counsel’s reliance on Ikpo V State (9195) 9 NWLR (Pt 421) 540 at 534, Federal Republic of Nigeria V Faith Iweka (2011) LPELR 9350 SC and Sani Abudullahi & ors V State {2013} LPELR-20644 SC in support of these submissions is apposite. In the case at hand, the lower court in affirming the trial court’s reliance on the appellant’s confessional statement did ail that the law requires of it. It went outside Exhibits A – A1 and B to establish the truth or otherwise of the statements. At 208 of the record the court further reasoned thus:- “Since the appellant denied ever making the statements, the test for determining the truth or otherwise of a confessional statement is to seek any other evidence of circumstances which make it probable that the confession is true.” The court found this evidence when at pages 210 – 211 of the record it held thus:- “From the record before the court page 42 is the continuing part of the evidence of DW1 (accused person) now appellant before this Court. He stated in lines 1 – 5 as follows on oath:- ‘…….. We entered Okada to go back to where he would give me the money. As the Okada was going we reoched a place/check point and the Police searched me and saw N730,000 so they stopped me when Ikenna Bike stopped they searched him and they brought out driving license, International Passport and hard currency from his pocket. They stated (sic) to ask him where he got all the things from. I was stonding there, I did not talk, he said he was sending the things to the persons he collected them from. So the Police now told him he is not sure of what he was saying/ In the instant appeal however the evidence in chief of the appellant at page 42 of the record is a direct confirmatory evidence to his confession contained in Exhibits A – A1 and B.” (Underlining supplied for emphasis). From the foregoing, learned appellant counsel is clearly in the wrong to insist that the two courts acted on the confessional statements of the appellant alone to convict him against the principle which requires a trial-within-a-trial to be conducted once the confession of the appellant was in issue. As the two courts correctly found, the trial-within-a-trial procedure in the instant case, where the issue is not whether the appellant’s confessional statements were voluntarily made but whether they were made by him at all, is unnecessary. The appeal which is against these concurrent findings of fact by the two courts must fail as their judgments have, from the record, been shown to draw from available evidence. See lyaro V State (1988) 1 NWLR (Pt 69) 256 and Akeredolu V Akinremi (1989) 3 NWLR (Pt 108) 164. In the result, not only is the third issue for the determination of the appeal resolved against the appellant, the entire appeal that has been found unmeritorious is hereby dismissed. Accordingly, the conviction and sentence of the appellant by the trial court for conspiracy and murder contrary to Sections 324 and 319(1) of the Criminal Code Law CAP 17 Laws of the Lagos State 2003 as affirmed by the lower court, is hereby further affirmed.

SC. 325/2012