Sale Ado Vs. The State (2017)
LAWGLOBAL HUB Lead Judgment Report
MUSA DATTIJO MUHAMMAD, JSC
The Kaduna Division of the Court of Appeal, hereinafter referred to as the lower court, on dismissing the appellant’s appeal against his conviction and sentence for conspiracy, robbery and culpable homicide by the Kano State High Court, the trial court, affirmed the judgment of the latter delivered on 27th July 2010. Dissatisfied with the judgment of the lower court dated 14th March 2013, Sale Ado (Alias Dangajere), the convict, has appealed to this Court on ten grounds.
In the appellant’s brief settled by Nuraini Jimoh Esq and filed on the 3rd of May 2013, two issues have been distilled as railing for determination of the appeal thus:-
“(1) Whether the learned Justices of the Court of Appeal were right when they affirmed the procedure embarked upon by the prosecution at the trial.
(2) Whether the learned Justices of the Court of Appeal were right in affirming the trial court’s decisions that the prosecution had proved their case beyond reasonable doubt and affirmed the conviction and sentence of the appellant?”
These two issues have been adopted by the respondent in its brief.
The respondent who did not file any Notice of Preliminary objection, at paragraphs 3.00 to 3.11 of its brief, appears to be challenging the competence of some of the grounds in the notice of appeal and or issue(s) distilled from the grounds by the appellant.
The issue of jurisdiction is certainly a threshold one. It is either that a court has it and legitimately proceeds or in unlawfully proceeding, without the necessary jurisdiction, wastes not only the litigants but its own precious time. It is trite that proceedings of courts that lack jurisdiction, no matter how well same were conducted, are nullities. Jurisdiction remains the lifeline of all trials and that is why a challenge to the court’s jurisdiction, in order to save time and costs, are raised even viva voce and for the first time in this Court. See N.D.l.C V. Central Bank of Nigeria & anor (2002) 3 S.C. 1 and Saude V. Abdullahi (1989) 4 NWLR (116) 387.
Learned respondent’s counsel has however done the needful by conceding, at the end of arguments in respect of its objection that, in criminal appeals where sentence of death has been passed, as in the instant case, this Court does not readily jettison the appellant’s right of appeal as conferred by the Constitution. Instead, learned respondent’s counsel is right, this Court will readily facilitate such a constitutionally guaranteed right. Learned counsel’s reliance on the decision of this Court in Sofola V. State (2005) 11 NWLR (Pt 937) SC 460 at 488-489 and Daggaya V. State (2006) 7 NWLR (Pt 980) 637 at 655, in support of his submission in this regard is apposite. Appellant’s reply brief principally controverting respondent’s challenge to the competence of aspects of the appeal has, therefore, become otiose. Respondent counsel’s concession and the particularly overriding practice evolved by this Court to hear and determine the appeal even if respondent has not withdrawn his objection make further consideration of respondent’s seeming objection to this Court’s jurisdiction unnecessary. Now to the appeal.
On the 1st issue, learned appellant’s counsel contends that the leave the trial court granted the respondent to call and lead PW3, PW4, PW5 and PW6 in evidence after the appellant had testified and closed his case remains improper. The trial court’s order facilitating the wrong procedure stands in breach of Section 36(6) (9) of the 1999 Constitution and Section 237 of the Criminal Procedure Code under which, submits learned counsel further, it was made. The procedure, it is contended, offered an opportunity to the prosecution to strengthen its case against the appellant. Relying inter-alia on the cases West V. Police (1952) 20 NLR 52 at 54, Ogbodu V. The State (1987) 3 SC 497, C.O.P V. Prediegha (1975) NNLR 170 and Onuoha V. The State (1989) 2 NWLR (Pt 103) 23 learned appellants counsel urges that this Court interferes by setting aside the lower court’s affirmation of the trial court’s perverse judgment. Further relying on Kajubo V. The State (1988) 1 NWLR, learned appellant’s counsel insists that the fact that appellant’s counsel did not oppose the prosecution’s application for the leave to call further evidence does not legalize the otherwise fundamentally irregular procedure that led to the conviction of the appellant. On the whole, learned counsel urges that the issue be resolved in appellant’s favour.
On the 2nd issue, learned appellant’s counsel submits that from the record of appeal, appellant’s conviction for all the three heads of charge is based on circumstantial evidence. The law, it is further contended, requires that such evidence be direct, positive, compelling and irresistibly pointing to no other conclusion than the appellant’s guilt. Once the possibility of any person other than the appellant intervene as to who committed the offence, it is argued, the appellant cannot be rightfully convicted for the offence(s). The quality of circumstantial evidence the trial court relied upon to convict the appellant for the offences, learned counsel submits, which conviction the lower court affirmed, does not meet the criteria specified in Mbang V. The State (2012) 6 SCNJ 395, Ubani Igri V. The State (2012) 6 SCNJ (Pt II) 360, Ubani V. The State (2003) 18 NWLR (Pt 851) 22 and Okoro V. The State (2012) 1 SCNJ (Pt 1) 36. Such evidence cannot sustain the convictions.
On the whole, learned counsel urges that both issues be resolved against the respondent and that the appeal be allowed.
Responding to appellant’s arguments on the 1st issue, learned respondent counsel submits that the record of appeal belies learned appellant counsel’s contentions. It is evident from the record, he further submits, that the respondent was forced to close its case on the 7th July 2009 prematurely by the trial court. Faced with the untimely closure of its case, the respondent sought and obtained the trial court’s order pursuant to Section 36 (6) (9) of the 1999 Constitution and Section 237 of the Criminal Procedure Code to enable it completely put its case against the appellant before the trial court. The trial court’s ruling allowing the respondent to call the witnesses, it is submitted, has not been appealed against. Appellant’s reliance on the plethora of decisions of this Court, on facts which are dissimilar to the instant case, learned respondent counsel submits, does not avail him. The appellant who has not in any way been put to any disadvantage by the procedure which allowed the respondent to put its case completely across to the court, it is argued, is not entitled to have the lower court’s judgment set-aside.
On the 2nd issue, learned counsel for the respondent submits that a number of circumstances have been established by the respondent to establish the unbroken chain of evidence the trial court properly acted upon to convict the appellant. The inferences drawn from the circumstances built by the prosecution, it is submitted, point strongly to the appellant as being one of those who agreed with another to and indeed committed the offences for which they have been convicted. The strong, credible and unbroken chain of evidence which meets the requirements of the law does sustain appellant’s conviction. Failure of the prosecution to tender the weapon used by the appellant and his co-convict, submits learned respondent counsel, does not diminish the quality of the circumstantial evidence on which appellant’s conviction as affirmed by the lower court is founded. To the contrary, it is argued, the grounds to warrant the intervention of this Court have not been established by the appellant. Citing the cases of Adesina V. The State (20120 14 NWLR (Pt 1321) 429, Musa V. The State (2009) 15 NWLR (Pt 1165) 467 at 488, Archibong V. State (2006) 14 NWLR (Pt 1000) 349 at 376, Olayinka V. State (2007) 9 NWLR (Pt 1040) 561 at 575 and Jua V. State (2010) 4 NWLR (Pt 1184) 217 at 247, learned counsel submits that appellant’s second issue for the determination of the appeal does not avail him.
Concluding, learned respondent counsel argues that the appellant having failed to establish that the concurrent findings of the two lower courts are perverse must fail in his appeal against the findings. Relying on Olaiya V. State (supra), learned counsel so urges.
Now, is learned appellant counsel correct in his submission that the lower court’s affirmation of the trial court’s resort to the testimonies of PW3, PW4, PW5 and PW6 is improper and perverse? I think not.
The appellant has asserted that the testimonies of the witnesses came after he had testified and closed his defence; that the leave granted the respondent to call these witnesses at that stage not only weakened his case but unjustly strengthened the respondent’s case. Learned respondent’s counsel, not unexpectedly, contends differently. What happened in the trial court, learned respondent counsel is right, is determinable by reference to the record of appeal. It binds both sides. An examination of the record, bears out learned respondent counsel and, belies the appellant’s claim.
It is evident from the record of proceedings, see page 27 thereat, that the respondent was, after series of futile adjournments to enable it call all it witnesses, forced by the trial court to close its case. This was on 2nd July 2009. The appellant and his co-accused testified and closed their defence on 29th September 2009 from which date the case was adjourned to 10th November 2009 for judgment. By 28-1-2010 when the case re-surfaced, with no clue as to what occurred from the date the judgment was to have been delivered, the respondent had filed an application for leave to call its outstanding witnesses. The application was granted on the 2nd February 2010. Thus PW3, PW4, PW5, PW6 and PW7 testified, see pages 32 to 42, between 25th February 2010 and 21st April 2010, consequent upon the leave the trial court granted the respondent.
Appellant’s Notice of appeal to the lower court against the trial court’s judgment dated 18th April 2011 was filed on the 19th April 2011. None of the four grounds in the said notice challenged the trial court’s order granting leave to the respondent to call its remaining witnesses after the closure of appellant’s defence. Learned respondent counsel is on a firm ground that judgment of a court of competent jurisdiction subsists until set-aside on appeal. Indeed, the appellant having not appealed against that order of the trial court is deemed to have accepted same as binding. See Chuba Chukwuogor and ors V. Chukwuma Chukwuogor and anor (2007) ALL FWLR (Pt 349) 115 at 169 and Victor J. Rossek & ors V. African Continental Bank Ltd & ors (1993) LPELR-2955(SC).
Ordinarily this would have brought the discourse on appellant’s 1st issue to an end. However, the nature of the offences the appellant is convicted for and the enormity of the sentences imposed on him justify a further consideration of the issue. For completeness, a decision is required as to whether or not the evidence of PW3, PW4, PW5, PW6 and PW7 has indeed unjustly strengthened the respondent’s case.
In answering the very question in its resolution of the 2nd issue distilled by the appellant thereat, the lower court held at pages 147-148 of the record of appeal thus:-
“However from what transpired in the present case, when the application for calling additional witnesses was made, the appellants counsel was there before the trial court and the learned counsel Mr. M.A. Lawal was asked and he conceded to the application to call additional witnesses before it was granted by the trial court. This concession of the learned counsel clearly has shown that whatever the case cited in the appellant reply brief … amount to non issue and the additional witnesses called (i.e. PW3-6) cannot be regarded as a nullity……… The learned trial Judge was right when he used the additional evidence of PW3 – PW6 in
founding the circumstantial evidence as she did.”
I agree with and venture beyond the foregoing unassailable finding of the lower court.
My lords, the utility of precedents or the application of the doctrine of stare-decisis in the administration of justice cannot be over-emphasized. Under the doctrine, decisions of superior courts are binding on inferior courts. Thus, in the hierarchical system of courts we operate in this country, the decision of the Supreme Court is binding on all other courts. See Suleiman V. C.O.P (2008) 162 LRCN 155 at 188 and Abacha V. Fawehinmi (2000) LPELR-14 SC.
Learned appellant’s counsel contends that the decisions of this Court inter-alia in Onuoha V. The State (supra) and Ogbodu V. The State (supra) denouncing the recall of prosecution witnesses, after the close of defence in a case, unreservedly rule the instant case. Learned counsel insists that the failure of the two courts below to be bound by the decisions render their concurrent convictions and sentence of the appellant unsustainable. I am unable to agree. Cases cannot be authorities for what they did not decide. A decided case furnishes a basis for the determination of a later case only if the facts or issues in the subsequent case are similar to those in the earlier case. Thus a lower court would not be bound to follow decisions of superior courts cited before it which decisions were not informed by similar facts or issues the lower court subsequently confronts. See Tejumade A. Clement & anor V. Bridget J. Iwuanyawu & anor (1989) 3 NWLR (Pt 107) 39, Babatunde and anor V. Olatunji and anor (2000) 2 NWLR (Pt 646) 557.
Learned appellant’s counsel must be under serious misapprehension of what this Court actually decided in the cases he cites and relies on. It has never been the decision of this Court that prosecution witnesses should never be called or recalled, either by the court suomotu or at the instance of the prosecution, after the prosecution and nay any of the parties before the court, or the defence had closed their respective cases. The cases the appellant cites and relies upon in support of his contention, certainly, do not support his cause.
From the case of Harvot V. Police 20 NLR 53 this Court cited with approval in Denloye V. M&DPDC (1968) NSCC 260 leading and not limited to Onuoha V. The State (supra), this Court’s decision is to the effect that, as a general principle of law and practice in our adversarial system, after the close of a case no further evidence ought ordinarily be given by any of the parties. It is not the decision of this Court that, in all situations, further evidence may not be given by any of the parties after the closure of defence. The court in Godwin Chukuma V. The Federal Republic of Nigeria, (2011) LPELR-863 (SC) per my learned brother I. T. Muhammad JSC asked the “pertinent questions” to which the trial court must find “potent” answers before allowing any of the parties to call further evidence after the case had been closed and date fixed for judgment thus:-
“(I) Whether a trial court can re-open a case after it has been closed.
(II) If it can, what are the rights open to the other party (the appellant in this case)?
(III) Has the trial court in this case afforded the (accused) appellant such rights?”
In the instant case the witnesses testified pursuant to respondent’s application for leave to call them by virtue of Section 36(1) (2) (a) of the 1999 Constitution as amended and Section 273 of the Criminal Procedure Code. The latter provision is particularly reproduced below for ease of reference.
”Section 237.-(1) Any court may at any stage of any trial or other judicial proceeding under this Criminal Procedure Code summon any person as a witness or call as a witness any person in attendance though not summoned as a witness, and shall summon or call any such person:-
(a) if his evidence appears to the court to be essential to the just decision of the case; or
(b) on the application of the Attorney-General, and if such application is made, the accused shall have a similar right, on applying to the court, to have any person summoned or called as a witness by the court.
(2) The court may examine or allow the prosecutor or complainant or the accused, as the case may require, to examine any person summoned or called as a witness under this section, and shall allow the prosecutor or the accused, as the case may require, to examine any person so summoned or coiled under paragraph (b) of subsection (I).
(3) Any person summoned or called as a witness under the provisions of this section may:-
(a) if examined by the prosecutor or complainant be cross-examined by the accused and then re-examined by the prosecutor or complainant;
(b) if examined by the accused be cross-examined by the prosecutor or complainant and then be re-examined by the accused.
(4) Notwithstanding anything contained in Section 222 of the Evidence Law, any person summoned or called as a witness under the provisions of this section who is examined by the court may be cross-examined by the prosecutor or complainant and by the accused.
(5) The powers conferred by this section may be exercised whether or not the person to be summoned or called and examined has already been examined as a witness in the proceedings.” (Underlining mine for emphasis).
A reading of the foregoing clear and unambigous provision shows the enormous powers the trial court enjoys in summoning witnesses at any stage of its proceedings, whether suo motu or at the instance of any of the parties thereto provided doing same does not overreach any of the parties to the proceedings. The section is in consonance with Section 36 (1) (2) (a) of the 1999 Constitution and both provisions not only empower but place the duty on the trial court, given the facts of the instant case, to grant the respondent leave to call and lead all material evidence that would in one way or another help in the determination of the matter at hand. See Abdulkadir Gusau V. C.O.P (1968) NMLR 829, Adaje V. State (1979) 6-9 SC and Opayemi V. State (1985) 2 N.S.C.C 921 at 927.
The appellant who, from the record, did not object to the grant of the leave to call and had cross examined all the witnesses the respondent called in furtherance of the leave obtained from the court, the lower court is right, cannot be heard to say that the procedure had in any way either weakened his case or strengthened that of the respondent.
The law requires that the charge against the appellant be proved by evidence. Where conviction is secured based on lawful evidence and the appellant, as required by law, has had the opportunity of cross examining the witnesses, neither the proceedings nor the conviction therefrom would be adjudged perverse. See Manawa Ogbodu V. State (1987) 1 NSCC 429 at 437 and Sunday V.State (2010) 18 NWLR (Pt 1224) 223. I so hold.
Both sides agree, and rightly too, that the trial court’s conviction and sentence of the appellant which the lower court affirmed is founded on circumstantial evidence. What remains an issue between the two is as to the quality of the evidence. Whereas the appellant insists that the evidence is not of the quality this Court decided may ground appellant’s conviction and sentence, the respondent submits to the contrary. Both appear to rely on the decisions of this Court on the issue. And the two cannot, certainly, be right at the same time.
This Court has held, in a seemingly endless body of its decisions, that circumstantial evidence is as good and sometimes even better than any other type of evidence; that the evidence comprises of a number of complete and unbroken chain of circumstances which if established to the satisfaction of the court entitles the court to act on same in convicting the accused; that in drawing inference of the accused’s guilt from such evidence the court must necessarily exclude any coexisting circumstances which weaken or destroy the inference; that where the circumstantial evidence led against the accused is strong and gives rise to the irresistible, cogent and compelling inference of the guilt of the accused, leaving no room-for any other rational conclusion, a conviction thereon may endure. See R .V Sala Sati (1938) 4 WACA 10, Paulinus V. Udedibia & ors V. State (1976) 11 SC133 at 138, Peter V. State (1997) 12 NWLR (Pt 531) 1 and Yong & anor V. State (1992) LPELR-3528 (SC).
The question to answer in resolving the 2nd issue for the determination of this appeal, therefore, is whether the evidence which grounds appellant’s conviction does constitute such unbroken chain of circumstances that leads compulsively, indisputably and conclusively to his guilt. See R V. Tepper (1952) AC 480 at 489, State V. Edobor (1975) 9-11 SC 69 at 77 and Orji V. State (2008) 10 NWLR (Pt 1094) 31. In my considered view, it does.
At page 73 of the record of appeal is the trial court’s summary of the evidence led by the respondent against the appellant and the court’s reasons for acting on same to convict the appellant. Thereat, the trial court enthused as follows:-
“The evidence of the prosecution in the instant case is that the deceased was killed by the robbers who came to steal his guinea fowl. The evidence of the PW5 to the effect that the deceased called out to him to come to his aid is cogent and compelling, so is the items discovered at the scene which were shown to belong to the 1st accused. The evidence of the PW3, the 1st accused’s neighbour and that of PW4 positively identified the shoes, facing cap and the stick found at the scene as belonging to the 1st accused. The evidence of these witnesses were not shaken under cross-examination. An essential ingredient of the offence of robbery under Section 298(c) of the Penal Code is that the accused at the time of the robbery was armed with an offensive weapon.
Although the prosecution failed to tender the knife found at the scene along with items identified as belonging to the 1st accused, such failure is not fatal to the prosecution’s case since abounding evidence exists showing that the robbers were armed with an offensive weapon and indeed the offensive weapon i.e. a knife was actually recovered at the scene and taken to the police station. See the case of Olayinka v. State (2007) 4 SCNJ 52 at 72.
The 1st accused person denied the items recovered at the scene of the crime however I find his denial unsubstantiated. The evidence of the prosecution witnesses is one that weighs heavily in my mind particularly as one of them is the 1st accused’s neighbour and ward head and both PW3 and PW4 are witnesses who knew the 1st accused very well. Though the evidence against the 1st accused on the offence of robbery is circumstantial, it is of such a nature that the evidence is positive, irresistible and leave no room for other explanation other than the guilt of the 1st accused.” (Underlining supplied for emphasis).
In affirming the foregoing the lower court, per Dalhatu Adamu JCA (of blessed memory), concluded at page 148-149 of the record concluded thus:-
“I therefore agree with the submission in the respondents brief that the circumstantial evidence relied by the trial court to convict the appellants are direct and overwhelming. The findings of the learned trial Judge was not perverse but based on the evidence of PW3, PW4, PW5 and PW6. Consequently I am of the sound opinion that the conviction and sentence of the appellants based on circumstantial evidence was justified and the prosecution has proved its case beyond reasonable doubt. We are not interfering with the view of the trial court and its findings of facts – see Musa vs. State (supra) cited in the respondents brief.”
The appellant is convicted for conspiracy, robbery and culpable homicide. The respondent through PW3, PW4, PW5 and PW6 provided evidence of an unbroken chain of circumstances that makes the inference of appellant’s guilt in all the three heads of charge irresistible and compulsive: the deceased’s retort that he was being slain as his guinea fowls were being stolen and his call for aid; the shoes, facing cap and stick all positively identified to belong to appellant; the fresh footsteps from the scene of crime leading to and ending at appellant’s abode. These, it is logical to presume, are not coincidental. The two courts are entitled to infer from all these pieces of evidence, in the absence of any explanation to the contrary, that the appellant and co traveller are guilty of the offences. In evaluating the evidence led through the witnesses, including the appellant, the trial court demonstrated the advantage it had of seeing and observing them while testifying. Neither the lower court nor this court shares the same advantage the non availability of which disentitles either of the two from interfering with the trial court’s findings arrived at not only on the basis of the hard evidence put before the court but on the basis of the credibility of the witnesses as well. The trial court’s findings not being perverse, its affirmation by the lower court cannot be any different. It is not the practice of this Court to interfere with these findings: Bashaya V. State (1998) LPELR-755 (SC) and Ubani V. State (2003) 18 NWLR (Pt 851) 224. It is for the foregoing that both issues for the determination of the appeal are resolved against the appellant. On the whole, the unmeritorious appeal is hereby dismissed. The trial court’s judgment as affirmed by the lower court is hereby further affirmed.
SC. 139/2013
