Samuel Isheno V Julius Berger Nig. Plc (2008)

LAWGLOBAL HUB Lead Judgment Report

I.T. MUHAMMAD, J.S.C

The Appellant herein, was arraigned before the High Court of Justice, Abeokuta, Ogun State (trial court) on the following counts:

COUNT ONE

SABURI ADEBAYO (M) on or about the 11th day of March, 1994 at Elekuro Village, via Ifo in Ogun State of Nigeria did conspire together with others still at large to commit a felony to wit: Armed robbery and thereby committed an offence contrary to Section 5(b) and punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap. 398 Laws of the Federation of Nigeria 1990.

COUNT TWO

SABURI ADEBAYO (M) on or about the 11th day of March, 1994 at Elekuro Village, via Ifo in Ogun State of Nigeria while in the Company of others still at large did rob one Saliu Afolabi of the sum of N100.00k and a Suzuki Motorcycle with Reg. No. OG 7842 DA and at the time of the said robbery were armed with cutlasses and thereby committed an offence contrary to and punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap. 398 Laws of the Federation of Nigeria, 1990.

COUNT THREE

SABURI ADEBAYO (M) on or about the 11th day of March, 1994 at Elekuro Village, via Ifo in Ogun State of Nigeria while in the Company of others still at large did rob one Oladehinde Segun of the sum of N100.00k and at the time of the said robbery were armed with cutlasses and thereby committed an offence contrary to and punishable under section 1(2)(a) of the Robbery and Firearms (Special Provision) Act. Cap. 398 Laws of the Federation of Nigeria, 1990.

The appellant pleaded not guilty to each of the counts.Trial began in earnest on the 22nd day of October, 1999. The Prosecution called six witnesses. The appellant testified on his own behalf and called no other witness. The defence and the prosecution addressed the trial court respectively. Judgment was finally delivered by the learned trial judge on the 11th day of February, 2000. The appellant was found guilty on all the three counts and was accordingly sentenced to death by firing squad on each count.

The court ordered sentences to run concurrently.Dissatisfied with the trial court’s judgment the accused/appellant filed an appeal to the Ibadan Division of the Court of Appeal (court below). The court below affirmed the decision of the trial court.

The appellant was aggrieved further and he came to this court on appeal. The Notice of Appeal Contained 3 Grounds of Appeal (pp 89 – 92 of the record).

In this court, briefs by the parties were filed and exchanged. The appellant formulated one issue which reads as follows:”Whether the lower court failed to consider the legal effect of joint consideration of counts 1 and 2 together; and if so whether the failure occasioned injustice to the Appellant.”

The respondent on its part, formulated the following issue for determination:

“Whether there was any aspect of the lower court’s judgment which occasioned injustice to the Appellant.”

The salient facts giving rise to this case as contained in the printed record of appeal are that on the night of 11th March, 1994, at about 1:00a.m, a gang of men armed with knives and cutlasses invaded Elekuro Village near Wasimi Railway Station. Among the houses they entered were those of PW 1 and 2. They were demanding for money from PW. 1 and 2 who received severe beatings from the gang when they (PW 1 and 2) said they had no money in their houses. Eventually, PW 1 and 2 each managed to find N100.00k (one hundred Naira) to give to the armed gang. PW 1 was wounded during the beating. His Suzuki Motor Cycle with Registration No. OG 7842 DA was taken away by the gang.

When the news or the presence of the armed gang became known to some fellow villagers, they came out and the robbers fled. The villagers gave a chase during which the accused/appellant was caught and arrested by PW3 who was a night guard on duty at the Universal Trust Bank which was situate in the vicinity. On arrest, the accused was found to be carrying a cutlass and a butcher’s knife which were recovered from him. He was then handed over to PW4 who was on duty at Wasimi Police Post in the night in question. Handed over to PW 4 also were the cutlass and the butcher’s knife recovered from the accused person. Discovered also from the scene of the crime were the Suzuki motor cycle which was earlier in that night stolen from the house of PW1.Two damaged wall clocks hidden in that bush were also recovered. The accused/appellant made a confessional statement to PW5 which was tendered in evidence and marked as Exhibit ‘A’.

In his submissions in the brief on the lone issue formulated, the learned counsel for the appellant stated that the first issue raised at the lower court for determination was whether the joint consideration of the two (2) offences as contained in counts 1 and 2 by the learned trial judge was justified in law. Learned counsel argued that the lower court in the consideration of that issue did not consider and determine the substance of the issue i.e. whether the trial judge was right and, by implication whether the appellant suffered any prejudice or miscarriage or justice in the circumstances. He argued further that the issue was validly raised same having arisen from the grounds of appeal, ought to have been considered and pronounced upon by the lower court. The lower court, he argued, did not consider it. The lower court’s failure to consider that issue was in clear breach of the appellant’s right to fair hearing as guaranteed under section 36(1)(4) of the Constitution of the Federal Republic of Nigeria, 1999. If the issue was considered, it was further argued, it would have led to the discharge and acquittal of the appellant.

Learned counsel for the appellant submitted further that the law is now settled that the court is bound to consider and pronounce on all the issues validly raised by the parties. He cited and relied on the cases of Adah v. National Youth Service Corps (2004) 7 SC (Pt.11) P. 139 at 143 – 144; Obi Nwanze Okonji & 4 Ors v. George Njokanma & 2 Ors (1991) 7 NWLR (Pt.202) 131 at 146; Balogun v. Labiran (1988) 3 NWLR (Pt.800) p.66 at page 80; Chief Okotie-Eboh v. Chief James Manager & 2 Ors (2004) 11 – 12 SC P.174 at 187.

In the case on hand, learned counsel for the appellant stated that he raised the issue at the court below that the trial judge ought not to have jointly considered the two counts together. He contended that the evidence in support of the counts differ and that if the trial judge had not adopted that procedure, it would have been clear to him that the charges were not proved hence the appellant would have been discharged and acquitted. There was, therefore, miscarriage of justice against the appellant by the failure of the lower to consider the issue. On this basis alone, the appeal ought to be allowed as the law is that a party who was not heard in court cannot be said to be guilty of the offence charged. The case of Alhaji Sanusi v. Oreitan Ameyogun (1992) 4 NWLR (Pt.237) 527 at p.550 was cited. Learned counsel submitted that the issue does not relate or revolve around the style of judgment writing or evaluation of evidence by the trial judge. It was the position of the appellant that since the counts differed in terms of evidence in proof, an independent consideration of same was of utmost necessity. He finally argued that the procedure adopted by the lower court was wrong in law. He urged this court to resolve this issue in favour of the appellant by allowing the appeal.

The learned counsel for the respondent (the DPP, Ogun State, MOJ), made her submissions as follows: that the learned appellant’s counsel cited some cases in support of his contention. From the outset, the cases cited by the appellant’s counsel, she argued, relate to civil appeals and therefore not completely apposite in a criminal appeal. She submitted that the issue of the joint consideration of counts 1 and 2 being issue 1 formulated by the appellant’s counsel in the lower court is subsumed under issue 2 formulated by the same counsel. The cardinal principle in deciding cases is that when a party submits an issue to a court for determination that court must make a pronouncement on that issue except where the issue is subsumed in another issue. She cited and relied on the case of Okonji v. Njokanma (1991) 7 NWLR (Pt. 202) 131 at page 146 paragraph A-B. It is further submitted for the respondent that the cardinal principle upon which a criminal case can be sustained by the trial court is if the prosecution proves its case against the accused person beyond reasonable doubt. The cases of Igabele v. State (2006) 6 NWLR (Pt.975) 100 at page 131 para D, Oladele v. Nigerian Army (2004) 6 NWLR (Pt.166) at 178 para D; were cited in support.

The learned DPP submitted that the trial court and the court below found the charge against the appellant to have been proved beyond reasonable doubt. At the court below, issue 2 formulated by the appellant was resolved against him. The Court specifically stated that the said issue 2 was resolved in favour of the respondent. In a criminal appeal, where the court of appeal accepts that the case against the appellant was proved beyond reasonable doubt, and the said court did not find any reason to set aside the conviction of the appellant and affirmed the sentence passed on the appellant, then the failure to consider any issue which has been subsumed under the issue which dealt with proof beyond reasonable doubt cannot be said to have occasioned any injustice to the appellant. His constitutional right was also not in any way violated. On the style adopted by the learned trial judge in his judgment, the learned counsel argued that that was a matter within judge’s discretion. She cited and relied on the case of Igago v. State (1999) 14 NWLR (Pt.637) 1 at page 9, B – C. The learned DPP finally urged this court not to interfere with the concurrent findings of the two lower courts as they were not perverse and no injustice was occasioned to the appellant.

I think my spring board in commencing the determination of this appeal is what the learned trial judge said with regard to the two counts said to have been tried jointly by the judge. On page 40, lines 30 – 32 of the printed record of appeal, the learned trial judge stated:

“For convenience sake, I propose to deal with the 2nd and 3rd counts of the charge first before coming back to deal with the charge of conspiracy in count 1”

The learned trial judge went ahead to treat the two counts making a finding that with regard to the 2nd and 3rd counts, the accused person was charged under section 1(2) (a) of the Robbery and Firearms (Special Provisions) Act, 1990. The learned trial judge set out the provisions accordingly. I think there was a mistake from the side of learned counsel for the appellant to say that the learned trial judge considered counts 1 and 2 of the charge together. But assuming that the intention of the learned counsel for the appellant was to challenge the treatment of counts 2 and 3 of the charge together as done by the learned trial judge, I would still not have found anything wrong in that. This is because, having studied the judgment of the court below, I find that the court affirmed the style adopted by the trial court in convicting and sentencing the appellant on all the counts charged, particularly counts two and three. I quote hereunder what the

court below said:

“I find the accused guilty on the 1st count of conspiracy to commit the offence of armed robbery punishable under section 1(2)(a) of the robbery and firearms (Special Provisions) Act, 1990.

On the 2nd and 3rd counts the accused is also found guilty as charged under section 1(2) (a) of the robbery and firearms Special Provisions Act 1990 respectively. I also confirm the sentence of death by firing squad in respect of the 1st, 2nd and 3rd counts.”

I think the language used in that excerpt from the judgment of the court below is clear enough to show that the court was in agreement with the whole decision taken by the trial court; if there was any fault anywhere, that court could have spotted it out.

In any event, what is fundamental in any criminal trial is the sustenance of justice and fair hearing. And, where the trial court is satisfied that the prosecution has proved its case beyond reasonable doubt as is required by the law, I then fail to see where the joinder of the counts on offences which are similar in nature and committed at almost the same time by the same accused person(s) can cause any miscarriage of justice. It is the decision of this court in many decided cases that in deciding upon whether there had been miscarriage of justice, the court of appeal dealing with the issue raised must be satisfied that it is substantial, not one of mere technicality, which had caused no embarrassment or prejudice to the appellant. See: Okegbu v. State (1979) 12 NSCC 151 at 156;

Of course what amounts to a miscarriage of justice varies not only in relation to particular facts but with regard to the jurisdiction which has been involved by the proceedings in question, and to reach the conclusion that a miscarriage of justice has taken place does not require a finding that a different result necessarily would have been reached in the proceedings said to be affected by the miscarriage. See: Adigun v. A. G. Oyo State (1988) 1 NWLR (Pt.53) 628. It is enough if what is done is not justice according to law. See: Okonkwo v. Udo (1997) 9 NWLR (pt. 519) 16 at page 20; State v. Ajie (2000) 11 NWLR (Pt. 678) 434 at 448. In the appeal on hand, count two of the charge accused the appellant of robbing one Saliu Afolabi of the sum of N100.00 and a Suzuki Motor Cycle with Reg. No. OG 7842 DA while armed with cutlasses contrary to and punishable under section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap. 398 Laws of the Federation of Nigeria, 1990.

The accused pleaded not guilty to each of the counts which were read to his understanding separately. The learned trial judge recorded accused’s plea to the two counts separately. (see page 13 of the record of appeal). PWI and PW2 were the victims of the offences charged under counts 2 and 3. After evaluation of evidence and making his findings, the learned trial judge, in applying the provisions of the law relating to the offences charged elected to treat counts two and three together because of their similarity. He finally pronounced the sentence in respect of each count but that all the sentences were to run concurrently. The court below affirmed the trial court’s decision. I can hardly fault these concurrent decisions. In any event, the punishment meted to the appellant on the 2nd count is “death by firing squad.” Equally, the punishment meted under count three is “death by firing squad.” Even if there were one hundred counts and each fetching the punishment of death, I believe there is only one death. All the sentences must, as a matter of fact, run concurrently as the convict must taste the pangs of only one death.

I do not think it is that easy to secure a discharge order for the appellant merely on a technical point that the issue raised by learned counsel for the appellant before the court below was not considered. I am not unaware that a court of law is duty bound to consider and pronounce upon all the issues raised validly by the parties. Learned counsel for the respondent argued that the issue of the joint consideration of counts 1 and 2 (2 & 3) being issue 1 formulated by the appellants counsel. It is trite law that when party submits an issue to a court for determination, that court must make a pronouncement on the issue except where the issue is subsumed in another issue. Where that happens, there shall no longer be the necessity of making a separate pronouncement on the issue subsumed. See: Okonji v. Njokanma (1991) 7 NWLR (Pt.202) 131 at page 146, A-B.

This appeal is very unmeritorious. I think it was filed in order to buy more time for the condemned prisoner. That venture has failed and the appellant, who was bold enough in executing his nefarious and merciless operations, should equally be bold enough to pay the price of his deeds.

I dismiss the appeal and affirm the concurrent decisions of the two courts below.

SC.186/2006