Arthur Onyejekwe V. The State (1992)
LawGlobal-Hub Lead Judgment Report
OMO, J.S.C.
The appellant and three others were originally charged in the Anambra State High Court (Onitsha Division) with the murder of a Police constable, Igwe Uduma, at Ogidi, on the 21st January 1984. Following a submission of no-case made at the end of the case for the prosecution at the trial, two of the accused persons were discharged and acquitted.
The appellant and one other (Obi Okonkwo) then testified in their own defence, after which counsel were heard by the Court on their behalf. In its judgment delivered on 7th February, 1986, they were both found guilty of the offence as charged and sentenced to death accordingly. On appeal, the Court of Appeal allowed the appeal of the other convicted person, Obi Okonkwo, and he was discharged and acquitted whilst the appellant’s appeal was dismissed. It is against this judgment that the appellant has appealed to this Court.
The only facts of the case that need be adverted to is that the appellant was a member of a gang of armed robbers who were operating at Ogidi on the night in question. In pursuance of this objective they mounted a road-block. Unfortunately for the operation, instead of civilian vehicles, policemen involved in an anti-robbery operation approached the road-block.
They were asked to stop by a member of the gang who soon realised it was a police vehicle with policemen in it and alerted the other robbers laying an ambush in the surrounding bush, who immediately opened fire on the vehicle. As some of the policemen with arms exchanged fire, members of the gang dispersed in various directions. It is the case for the prosecution that the deceased police constable was killed as a result of shooting by the armed robbers.
In the course of police investigation some members of the gang were arrested. Two of them (at least), including the appellant, made what were considered to be confessional statements, which were duly authenticated by a superior police officer. Four only were subsequently charged to court, and only two were called upon to offer a defence. In their evidence in defence, they retracted their confessional statements to the police which they denied making, and 1st appellant – Obi Okonkwo – pleaded an alibi.
The trial court considered the defences raised and found that the statements of the two accused persons before it, Exhibit D, E and F were confessional. It noted that the statements were not objected to when tendered in evidence. It rejected the 1st appellant’s defence of alibi, and the submissions made as to alleged contradictions/discrepancies in the evidence of the prosecution, and found both accused guilty as charged.
On appeal to the Court of Appeal, the following five issues were raised for determination:-
“1. Whether given the facts in this case and the state of medical evidence there was sufficient link or nexus between the act of the appellants and the cause of death of the deceased as would make the appellants liable for the murder of the deceased.
- Whether the trial judge was right to have rejected the defence of alibi put up by the first appellant and to have convicted him without any investigation and or proper consideration of the said defence.
- Whether the trial judge rightly convicted the appellants on their alleged confessional statements.
- Whether it was right to convict the appellants even though the trial judge failed to advert his mind to various discrepancies in the evidence of witnesses on material points and also failed to make adequate and specific findings on them.
- Whether having regard to the totality of the evidence before the court, a case of murder was proved beyond reasonable doubts against the appellants.”
The Court of Appeal considered all these issues which had also been raised before and determined by the trial court. It rejected the suggestion that the deceased was killed by a shot from the police, holding rather that the medical evidence suggests the shot which killed the deceased came from the armed robbers. It held that there was no discrepancy in the evidence of witnesses as complained of. In holding that the statements made by the two appellants complained of were confessional statements because it implicated them, the court below (per Uwaifo, J.C.A.) stated thus-
“Although they did not admit that they themselves were armed, they knew others were. They were well aware of the unlawful purpose all of them set out to perform, namely, armed robbery. Each one of them expected that force would be used when necessary and that, because of the nature of the weapons carried, death was a probable consequence. In other words, they had a common purpose and a common intention which, under section 8 of the Criminal Code, would make them liable together for an offence committed in the process of their operation. If therefore two or more persons set out to prosecute an unlawful purpose where the application of force is likely, and one of them is armed with a lethal weapon to the knowledge of the other or others; both or all of them will be guilty of any offence against the person, or homicide, which may be committed by one of them in the course of that unlawful purpose.”.
It also cited and relied on Akinkunmi v. The State (1987) 1 NWLR (Pt. 52) 608 and Adekunle v. The State (1989) 5 NWLR, (Pt. 123) 505 (518-520), as setting out conditions under which the doctrine of common intention enunciated in section 8 of the Criminal Code of Nigeria, would apply. On the defence of alibi raised by the 1st appellant in his second statement to the police made some months after his first statement, the court below held that “for whatever it was worth, the police at that stage had a duty to investigate” same. By not doing so, they had not discharged the burden on them to rebut the defence of alibi. Consequently a reasonable doubt as to the guilt of the 1st appellant had been created which entitled him to an acquittal vide Adedeji v. The State (1971) 1 All N.L.R. 75; Ozaki v. The State (1990) 1 NWLR (Pt.124) 92 at 109; Salami v The State (1988) 3 NWLR (Pt.85) 670 at 677. Before concluding on the appeal, the Court observed and raised suo motu issues, which were not raised on the grounds of appeal or issues filed by the appellants, to wit,
“(a) Whether there was conviction recorded by the trial judge and if not the effect;
(b) Whether a single sentence can properly be passed on two or more accused in respect of the same offence and if not the effect of so doing”
Counsel was then invited to address the Court below on these issues. The submission of counsel as set out in the judgment is enough for the purpose of this judgment and it reads:-
“Counsel for the appellants submitted that the trial court considered the case against each appellant separately and came to a judgment. He said that although there was no specific recording of conviction, it was obvious from the judgment as a whole that each appellant was found guilty. He argued that in the circumstances of this case, it became a mere irregularity which did not affect the judgment. This last argument was also urged in support of the form of sentence passed. Counsel for the respondent submitted that it is true that there is no place in the judgment in which the appellants were found guilty or were convicted. She however said that failure to do so was a mere technicality, relying on Seedi v. Commissioner of Police (1946) 12 WACA 29. She then drew the Court’s attention to Commissioner of Police v. Marteifio (1943) 9 WACA 153 where it was held that failure to convict makes sentence unlawful and to R v. Ekpo (1947) 12 WACA 40 where Marteifio’s case was considered and distinguished. As to the form of sentence, learned counsel also submitted that it was a mere irregularity which bordered on technicality.”
(Note: Italics mine)
The court below then proceeded to consider the various authorities cited by counsel (above), and also the Supreme Court decision in Okoruwa & Ors. v. The State (1975) 5 E.C.S.L.R. 492, (1975) 5 S.C. 11; (also reported in (1975) N.S.C.C. Vol. 9 p. 266); and came to the conclusion that, going by the findings made by the trial judge, he did find the appellants guilty of murder. It then concluded that “Any untidiness in the way he did it becomes a mere technicality”. Finally it allowed the appeal of the Ist appellant and discharged and acquitted him. The conviction and sentence of the 2nd appellant was affirmed, his appeal being dismissed. He is the appellant in this Court.
In this Court briefs were also filed, the appellant being represented by the same counsel as in the Court of Appeal. Neither in the ten grounds of appeal filed on his behalf nor in the issues for determination in his brief was the decision of the court below on the effect of non-recording of conviction of the appellant raised or disputed. That is understandable having regard to the submission of counsel in the court below, which accorded with the decision of the court. The submission by counsel for the appellant seeking to challenge the judgment on that ground cannot therefore be entertained, leave to argue same in this Court not having been obtained. In view however of the observation by the court below (per Uwaifo, J.C.A) that-
“It seems to be an open question whether there was verdict or no verdict reached in the present case on appeal and I think it is a question of considerable difficulty upon which an authoritative opinion of the Supreme Court would have been most desirable having regard to the tenor of the judgment.”
a few observations on this question will not be amiss, if only to draw attention to other decisions of the Supreme Court on this and similar questions.
In Oyediran & Ors v. The Republic (1966) 4 N.S.C.C. 252, (1967) NMLR 122; the appellants were tried at the Lagos as sizes on a sixteen-count information. On appeal, it was revealed, by a close reading of the record of appeal, that some of the appellants had been convicted on counts on which they were not charged, and some of them had also been sentenced to terms of imprisonment in respect of counts on which they were not convicted. On appeal to the Supreme Court against these convictions it was held that-
“4. Where several persons are tried together, separate verdicts must be returned in respect of each of the accused persons.
- Where, as in this case, there are several counts on the same information separate verdicts must be delivered in respect of each of the several counts.
- Sentences passed in respect of Counts on which no verdicts were recorded even if read along with the Judge’s findings cannot be tantamount to a finding of guilt in the absence of an entry of formal verdicts. ”
In coming to this decision, the Supreme Court did not appear to have had the benefit of submissions on the previous decisions of the West African Court of Appeal considered by the learned Justices in the Court below on this appeal, because none of them were adverted to in its judgment. Its decision can be understood in the light of what must have been considered to be a confusion arising from the joint trial of six accused persons, on as many as sixteen counts, with not all of them being charged on all the counts. In such a situation the need for clear verdicts on equally clear counts and clear sentences being recorded, can be appreciated. That is not the situation in the present case on appeal, where there were only two appellants charged with the same offence of murder, to which all the evidence was led and submissions of counsel directed. However, in two other cases decided later, to wit, Ntibunka & Ors. v. The State (1970) N.S.C.C.17 (1972) 7 S.C. 71; and Okpa v. The State (1972) 7 N.S.C.C. 106, (1972) 2 S.C. 26, the appellants were charged for and found guilty of murder. But sentence was not recorded as required by section 273 of the Criminal Procedure Code of Nigeria (same as sections 367 to 369 of the Criminal Procedure Law of the former Eastern Nigeria). The failure was treated as an irregularity or slip, and the finding of guilty of murder was upheld. Although sentence was here involved as opposed to conviction, it appears to me, and I so hold that the same principles would apply. To hold otherwise would result in relying on technicality to do injustice. Once it is clear, from the evidence led and/or findings of the trial Judge, that the appellant has been found to have committed the offence charged, the failure to record the conviction should not prevent the appellate court from so holding. It should be regarded as an irregularity/slip and not an illegality. The decision of Baker Ag. C. J. in Seedi’s case (supra) seems to me still correct when he held that-
“The omission is one of procedure and might be described as a mere technicality and which in our opinion cannot be considered as fatal and is within the power and duty of the court to remedy so that substantial justice may be done.”
Further, in exercise of its powers under section 16 of the Court of Appeal Act 1976 and Section 22 of the Supreme Court Act, the Court of Appeal and the Supreme Court respectively can enter the correct conviction or sentence as the case may be, without sending the case back to the trial court for the record to be corrected.
As stated earlier, the arguments in support of the other two issues were the same which the trial court and the Court of Appeal had considered and rejected. The finding of fact of the trial court have been affirmed by the Court of Appeal, and no special circumstances have been shown why this Court should interfere with them vide Duyile v Ogunbayo & Son. Ltd (1988) 1 NWLR (Pt. 12) 601; Ajeigbe v. Odedina (1988) 1 NWLR (Pt. 72) 584 at 598 para. A. On the purely legal aspect, the only issue that is worth considering is whether the statements of the appellant are confessional. I agree wilh the Court of Appeal that they are. They are direct and positive. The facts therein stated show that the appellant participated in the offence charged. They are no less so because the appellant did not admit firing the shot which killed the deceased. The learned trial Judge found that they were voluntarily made, and the Court of Appeal confirmed this finding. The submission of the appellant that they were not voluntarily made is a belated afterthought, because counsel did not object to their being tendered in evidence when prosecuting counsel sought to do so, which would have necessitated a trial within a trial vide Obidiozo v The State (1987) 4 NWLR (Pt.67) 748. In the circumstances it is open to the trial court, once it is satisfied as to its truth, to rely solely on it to ground a conviction vide Achabua v The State (1976) 12 S.C. 63; Ntaha v The State (1992) 4 S.C. 1. The retraction of same in his evidence on oath during his trial does not adversely affect the situation vide Akinfe v. The State (1988) 3 NWLR (Pt. 85) 729; Ikemson v The State (1989) 3 NWLR (Pt.110) 455.
The answers to the issues framed by the appellant are therefore in the affirmative. Accordingly this appeal is hereby dismissed and the judgment of the court below is affirmed. The conviction and sentence of the appellant is also affirmed.A. G. KARIBI-WHYTE, J.S.C.: I have read the judgment of my learned brother Uche Omo, J.S.C in this appeal. I agree entirely with his reasoning and his conclusion dismissing this appeal.
The Court below raised suo motu, the effect of a sentence without a recording of conviction. The Court however held that in the instant case, the failure to record a conviction was a technicality which did not affect the sentence. The learned Justice of the Court of Appeal having considered the state of the authorities regarded the question as one of considerable difficulty, which required the authoritative opinion of this Court.
Uche Omo J.S.C has observed in the leading judgment that the question of the failure to record the conviction of the appellant is not one of the grounds on which the judgment of the Court below is being challenged. I agree entirely with this observation. It is therefore stricto sensu not an issue for determination before us.
I agree with the Court below that the question is one of considerable difficulty which requires the authoritative opinion of this Court. I prefer to deal with such an important issue when properly raised before us by the party aggrieved.
I agree with the conclusion dismissing this appeal and affirming the judgment of the Court below. The conviction and sentence of the Appellant is also affirmed.S. M. A. BELGORE, J.S.C.: I agree with the judgment of my learned brother, Omo J.S.C., that this appeal has no merit. Once the evidence is clear and is supported by law the mere fact that the sentence based on the conviction is not in line with the appropriate statutory wording should be regarded as mere irregularity not vitiating the conviction.
For the reasons contained in the judgment of my learned brother which I adopt as mine, I dismiss this appeal. The conviction of the trial Court upheld by the Court of Appeal is affirmed. The appellant shall be hanged by the neck until he be dead.
SC.266/1990
