Simeon Lalapu V. Commissioner Of Police (2019)

LAWGLOBAL HUB Lead Judgment Report

PAUL ADAMU GALUMJE, J.S.C.

The Appellant herein was arraigned before the High Court of Bayelsa State on a two counts charge of conspiracy to kidnap and kidnapping under Section 444(a) and 291(b) of the Criminal Code Law Cap C14, Laws of Bayelsa State 2006. When the charge was read and explained to the Appellant, he pleaded not guilty. In order to prove its case, the prosecution called three witnesses and tendered in evidence, 1. Call log from airtel, 2. Attestation form, 3. Extra-judicial statement of PW2, the victim of the alleged offence, 4. Extra-judicial statement of the Appellant. They were admitted in evidence and marked Exhibits A, B, C and D respectively. The wife of the Appellant testified as DW1 and the Appellant testified as DW2. Learned counsel for the respective parties addressed the Court. In a reserved and considered judgment delivered on the 9th May, 2014, Aganaba J. found the Appellant guilty as charged and sentenced him to five years imprisonment for the 1st count of the charge, and five years imprisonment for the second count. The sentences were ordered to

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run concurrently.

Appellant’s appeal to the lower Court against the decision of the trial Court was dismissed on the 9th July, 2015. The instant appeal is against the decision of the Court of Appeal. The Appellant’s amended notice of appeal, filed on the 29th December, 2015 contains seven grounds of appeal. These grounds without their particulars read as follows:-

1. The Court below erred in upholding my conviction and sentencing when the police had no reasonable ground or reason to arrest me.
2. The Court below and the trial Court erred in law in acting on Exhibit C as a confessional statement as same was obtain under duress.
3. The lower Court erred in law when it stated that “the contradiction between the oral evidence in Court of PW2 and his extra-judicial statement Exhibit C was explained by PW2 who insisted that he never told the police he could not identify the police who kidnapped him
4. The lower Court erred in law when it stated that “the contradiction or inconsistency in the evidence of PW2 and his extra-Judicial statement Exhibit C has not casted any reasonable doubt upon the guilt of the Appellant.
5. The lower Court erred in law when it stated that “the contradiction or inconsistency in the evidence of PW2 and his extra judicial statement Exhibit C has not casted any reasonable doubt upon the guilt of the Appellant. The Court below erred in upholding the conviction and sentence of the Appellant based on his purported

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confessional statement and the evidence of PW2 as the Respondent did not prove its case beyond reasonable doubt.

6. The trial Court was wrong in disregarding the need for the police to have carried out an identification parade before the Appellant was identified by PW2.
7. The decision of the lower Court is unreasonable, unwarranted and cannot be supported having regard to the evidence before the Court.

Parties filed and exchanged briefs of argument. At pages 2 – 3 of the Appellant’s amended brief of argument filed on the 26th October, 2017, five issues are formulated for the determination of this appeal. They are reproduced hereunder as follows:-

1. Whether from the investigation by the police of the case of the kidnapping of PW2 there was any evidence linking the Appellant to have warranted his being arrested in the first place.
2. If the answer to the above question is no; whether the purported confessional statement extracted from the Appellant after his being shot was given voluntarily.
3. Whether the contradiction between the oral evidence of PW2 and his extra judicial statement as contained in Exhibit C

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was a material contradiction and whether same was explained by PW2.

4. Whether the prosecution proved its case beyond reasonable doubt to have warranted the Court below upholding the conviction and sentencing of the Appellant by the trial Court.
5. Whether based on the extra judicial statement of PW2 that he cannot identify his kidnappers there was the need for the police to have carried out an identification parade.

Mr Lawrence S. Okoko-Jaja, learned counsel for the Respondent argued a preliminary objection he issued against the Appellant’s application for leave to raise and argue fresh issues which were not canvassed at the lower Court, at pages 2 – 6 of the Respondent’s brief of argument filed on 30th August, 2016. Thereafter learned counsel formulated one issue only for the determination of this appeal as follows:-

“Whether the prosecution proved its case against the Appellant beyond reasonable doubt; taking into consideration the fact that the police did not deem it necessary to conduct an identification parade.”

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Mr. U. Saiyou, learned counsel for the Appellant filed a reply brief on the 20th February, 2017.

A preliminary objection under Order 2 Rule 9 of the Supreme Court Rules is an objection which is initiated at the earliest opportunity against the hearing of an appeal. If it is successful, it brings the appeal to an end. For avoidance of unnecessary dissipation of energy, such preliminary objection is always considered before taking any steps in the appeal. Learned counsel formulated one issue for determination of the preliminary objection and it reads thus:-

“Whether leave to raise fresh grounds and argue new issues for determination by the Appellant should be granted by this Court as a matter of cause (sic, Course). If the answer is in the negative, have (sic) the Appellant met the condition for the grant of the leave sought.”

From the sole issue formulated for determination of this preliminary objection, it is so clear that the objection is not against the hearing of this appeal as provided for under Order 2 Rule 9(1) of the Supreme Court Rules which provides as follows:-

“A respondent intending to rely upon a

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preliminary objection to the hearing of the appeal shall give the Appellant three clear days notice thereof before the hearing, setting out the grounds of objection and shall file such notice together with ten copies thereof with the Registrar within the same time.” (underling is mine).

In S.P.D.C.N Ltd vs Amadi (2011) 14 NWLR (Pt. 1266) 158 at 183 paras D – E, this Court, per Rhodes-Vivour, JSC held:-

“Preliminary objection are filed against the hearing of appeals and so once it succeeds, the appeal no longer exists. All too often, we see preliminary objections filed against one or more grounds that can sustain the appeal, a preliminary objection should not be filed. Instead a notice of motion seeking to strike out the defective grounds of appeal should be filed.”

In the instant preliminary objection, learned counsel for the 1st Respondent argued extensively that the 1st and 2nd grounds in the proposed amended notice of appeal and issues i – iii in the Appellant’s/Applicant’s brief of argument are entirely new grounds on issues which were not raised at the Court below as such the Appellant cannot invoke the provisions of Section 26 of the Supreme Court Act

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to aid his application. I am surprised at the nature of this preliminary objection and what it intends to achieve. The proposed notice of appeal remains a proposal which is in no way a process in this appeal. Even if the Respondent’s preliminary objection succeeds, it will not affect the hearing of this appeal as there are other grounds that can sustain the appeal. It is therefore not an appropriate process to be issued against the competence of some grounds of appeal. See NEPA vs Ango (2001) 15 NWLR (Pt. 737) 627; Cont Res (Nig) Ltd vs UBA Plc (2011) 16 NWLR (Pt. 1274) 592; Garba vs Mohammed (2016) 16 NWLR (Pt. 1537) 114 at 145 paras. E F; Abdulsamad vs Abdulahi (2015) ALL FWLR (Pt. 798) 916 at 943 paras C G. I am therefore in total agreement with learned counsel for the Appellant that the preliminary objection herein is a wasted effort and therefore inappropriate in the circumstance of this appeal. It is incompetent and same is struck out.

For the main appeal, I have deliberately set out the grounds of appeal and the issues distilled therefrom by the Appellant

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to show that certain grounds of appeal have attacked the decision of the trial Court only and some issues have not arisen from the grounds of appeal. I will proceed to demonstrate that anon. The 6th ground of appeal is not directed at the decision of the Court of Appeal. Even at the risk of repetition, I reproduce the said ground of appeal as follows:-

“The trial Court was wrong in disregarding the need for the police to have carried out an identification parade before the Appellant was identified by PW2.”

Section 233 (1) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) provides that the Supreme Court shall have jurisdiction to the exclusion of any other Court of Law in Nigeria to hear and determine appeals from the Court of Appeal. Section 240 of the same Constitution provides that the Court of Appeal shall have jurisdiction to the exclusion of any other Court of Law in Nigeria to hear and determine appeals from the Federal and States High Courts. In appeals to this Court, the grounds of appeal must be directed not at the decision of the trial Court from which the appeals were lodged at

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the Court of Appeal, but against the decision of the Court of Appeal. A ground of appeal before this Court that attacks the decision of the High Court is unconstitutional and it is incompetent.

The 6th ground of appeal is therefore incompetent as it is not directed at the decision of the Court of Appeal. Where a ground of appeal is incompetent, this Court has inherent power to strike it out on the ground that it is defective and cannot support the appeal. See Okeke Anadi vs Okeke Okoli (1977) 11 NSCC 117; Okorie & Ors vs Udom & Ors (1960) 1 NSCC 108 at 110. The 6th ground of appeal is accordingly struck out. Having struck out the 6th ground of appeal, the 5th issue formulated therefrom as well as the argument canvassed in support are hereby struck out.

The 7th ground of appeal is also not directed at the decision of the Court of Appeal, even though the Appellant mentioned that the ground is against the decision of the lower Court. The contents of the 7th ground of appeal do not show that it is against the decision of the Court of Appeal. None of the parties adduced evidence before the lower Court. Omnibus ground of appeal is normally

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directed at the decision of the trial Court that assessed the evidence adduced before it. A valid ground of appeal in respect of assessment of evidence should be an attack on how the Court of Appeal considered the performance of the trial Court generally. I am of the firm view that the 7th ground of appeal is incompetent as well. It is struck out. The 4th issue is distilled from the incompetent ground 7 and competent ground 5. There is no way I can sift argument from the competent ground and the incompetent ground of appeal. The virus that inflicted the 7th ground of appeal has by extension adulterated the argument from the 5th ground as well. Accordingly the 4th issue as well as the argument canvassed in support are hereby struck out.

Now appeals before this Court are heard on the basis of the issues formulated by parties. These issues must be formulated from grounds of appeal. Where those issues do not arise from the grounds or any of the grounds of appeal, they will be ignored. See Obiekwe vs Obi (2005) 10 NWLR (Pt. 932) 66; Sanusi vs Ayoola (1992) 9 NWLR (Pt. 265) 275.

The 1st and 2nd issues formulated by learned counsel for the

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Appellant are neither directed against the decision of the lower Court nor are they directed against the decision of the trial Court. For avoidance of doubt and even at the risk of repetition. I reproduce the two issues as follows:-

1. “Whether from the investigation by the police of the case of the kidnapping of PW2 there was any evidence linking the Appellant to have warranted his being arrested in the first place.
2. If the answer to the above question is no; whether the purported confessional statement extracted from the Appellant after his being shot was given voluntarily.”

The question posed in these two issues would have been better put before the trial Court and the answer of that Court would have become subject of appeal before the lower Court. The issues are directed at the investigative activities of the police and not what the Courts did. The two issues are said to have arisen from the 1st and 2nd grounds of appeal. These grounds of appeal are directed against the decision of the Court of Appeal.

The 1st and 2nd issues cannot be said to have been formulated from the 1st and 2nd grounds of appeal. They are incompetent

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and are hereby discountenanced.

The 1st and 2nd grounds of appeal are abandoned, since no issues have been formulated from them. They are hereby struck out in line with the decision of this Court in Adelekan vs Ecu-Line NV (2006) ALL FWLR (Pt. 321) 1213, where Onnoghen JSC (as he then was) held:-

“It is settled law that where no issue is formulated from any ground of appeal, the said ground is deemed abandoned. The same principle of law applies to a situation where it is found that issues formulated by an appellant do not relate to the grounds of appeal. The said grounds must be deemed abandoned since no issues have been distilled from them and are therefore liable to be struck out.”

The 1st, and 2nd grounds of appeal are accordingly struck out.

So far, the only grounds that are spared for determination of this appeal are the 3rd and 4th grounds of appeal. The 3rd issue for determination of this appeal is distilled from these surviving grounds of appeal. This appeal will be decided on the basis of the 3rd issue.

On the 23rd September, 2012, when PW2, king Richard Seiba was released by those who kidnapped him, he

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made a statement to the police where he emphatically stated that he could not identify his abductors. This extra-judicial statement of PW2 is Exhibit C. However the same witness in his evidence in court said:-

“When they came to my house to take me away there was light all through. They were not wearing any mask. Their faces were clear. In the bush we were all like human beings.”

Under cross examination, PW2 stated that he never told the police that he could not identify those who kidnapped him. Clearly there were contradictions between the extra-judicial statement of PW2 and his evidence in Court which touched on the identity of the kidnappers. The learned trial judge, in dealing with this issue of contradiction had this to say:-

“It is clear that at the time the kidnappers kidnapped PW2 they were unknown to him and therefore he could not identify them by name. That does not mean that he could not identify them if he saw them. PW2 was with the kidnappers at close quarters for close to ten days and it will be quite preposterous to suggest that he could not identify them facially if he saw them. Furthermore the witness

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denied under cross examination that he could not identify those who kidnapped him. Given the manner of the cross examination, it can be easily deduced that in that instance what the witness meant was that he never told the police that he could not identify his kidnappers if he saw them.”

The learned trial judge in the extract which I have reproduced herein above arrogated to himself the role of a witness for the prosecution. He speculated and ascribed meanings to what PW2 said. This is wrong. The learned justices of the Court of Appeal fell into the same error when they held in their judgment at page 176 of the record of appeal as follows:-

“The contradiction or inconsistency in the evidence of PW2 and his extra judicial statement Exhibit C has not casted any reasonable doubt upon the guilt of the Appellant.. learned counsel for the Appellant’s submission on the contradiction in Exhibit C i.e. the extra judicial statement of PW2 and his evidence in Court is of no moment. The identification of the Appellant by PW2 is positive enough to associate him with the kidnap of PW2.”

The trial Court and the Court of Appeal

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did not take the contradiction in the evidence of identification of the Appellant by the prosecution seriously. PW2 made Exhibit C after he had been released by the kidnappers. His stay at close quarters as the learned trial judge stated in his judgment did not give him insight into the identity of the kidnappers, and he said so after his release. For the trial judge to state that it was preposterous for anyone to suggest that the kidnappers were not known to PW2, amounted to speculation. The law on the issue of contradiction in the evidence of a witness with his earlier extra-judicial statement is quite clear, and that is, where a witness’s real statement in Court contradicts or is inconsistent with his previous extra-judicial statement, the Court should not only regard the sworn oral testimony as being unreliable, but also the previous statement, whether sworn or unsworn as not constituting evidence upon which it can act. Consequently, neither of the two versions of the story is worthy of any credit and therefore incapable of establishing the truth. See R vs Ukpong (1961) ALL NLR 25, Asanya vs The State (1991) 3 NWLR

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(Pt. 180) 422; Oladejo vs The State (1987) 3 NWLR (Pt. 61) 419; Umani vs The State (1988) 1 NWLR (Pt. 70) 274; Esangbedo vs The State (1989) 4 NWLR (Pt. 113) 57.

In the instant case, the trial Court as well as the Court of Appeal were wrong when they relied on the evidence of PW2 when that evidence was clearly inconsistent with Exhibit C, the extra-judicial statement of PW2.

The 1st, 2nd, 4th and 5th issues having been struck out for being incompetent. The decision of the trial Court, as affirmed by the lower Court that the confessional statement of the Appellant, Exhibit D, is sufficient to sustain the conviction and the sentence passed on the Appellant remains unchallenged. For where there is contradiction, and the man accused of the crime steps in and admits the commission of the offence, the contradiction in the prosecution’s case is rendered irrelevant. The contradictions in the evidence of PW2 has not affected the concurrent findings of facts by the trial Court and the lower Court. I therefore find no merit in this appeal.

Accordingly same shall be and it is hereby dismissed. The decision of the lower Court which affirmed the judgment of the

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trial Court, is hereby affirmed.

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SC.815/2015