Inspector John Onwe V. The State (2017)
LAWGLOBAL HUB Lead Judgment Report
SIDI DAUDA BAGE, J.S.C.
This is an appeal against the Judgment of the Court of Appeal, Lagos Judicial Division in criminal appeal CA/L/380/2009 delivered on the 1st February, 2013 by the said Judgment, the Court ordered for a retrial before another judge nullifying the Judgment of the Lagos High Court which had convicted and sentenced the Appellant to death by hanging.
Dissatisfied with the judgment of the Court of Appeal, the Appellant appealed against the said sentence to this Court, vide a notice of Appeal dated and filed on 27th February, 2013.
SUMMARY OF THE FACTS
The facts of this case as may be gleaned from the evidence on record are that:-
“Appellant was a serving Police Inspector attached to the SCID Panti Yaba Lagos, under the Lagos State Police Command.
Prior to the appellant being charged to Court, one Ernest Ndudiri Onyckwere (deceased) was arrested on the 12th June, 2002, at Onitsha, Anambra State by one Sergeant Eniola Akinsulere of Alausa Police Station, Ikeja, also in Lagos State based on a complaint of armed robbery by one Gabriel Ezeze and
Azubuike Ezeze who were initially 7th and 8th accused persons charged with perverting the course of justice contrary to Section 126(1) of the Criminal Code Law Cap. 32 Volume 2 of Lagos State, 1994, when the case was initially taken to Court.
Before Ernest N. Onyekwere went to Onitsha where he was arrested, he alleged that he was beaten by armed robbers to a state of coma, looked very weak and was bleeding from the nose. This was alleged to have happened on 25th May, 2002. One Mrs. Bilikisu Ismail took him to Jim- Sam hospital al No. 22 Gaskiya Road, Ijora in Lagos. The father of Ernest N. Onyekwere heard of the armed robbery incident and the injuries sustained by the son and sent one of the son to go to Lagos and bring him to Onitsha for treatment.
This led to the discharge of Ernest N. Onyekwere and after the discharge from the hospital on 19th May, 2002, it was felt he need further treatment and was taken away to Onitsha for the treatment at Chinyere Hospital.
Sgt. Akinsulere Eniola who effected the arrest of Ernest N. Onyekwere at Onitsha said the deceased made a statement to him at his office at the Divisional Crime Branch, denying
the allegations against him. Accordingly he was instructed to transfer the deceased suspect to Panti C.I.D., Yaba which he did on the 17th June, 2002, by handing over the said Ndudiri Onyekwere who had bandages stained with blood on his head and several parts of his body and one Obiagwu to the IPO from Panti State CID Panti Yaba in the persons of Inspector Victor Ukah and Sgt. Abiodun Ogundele, who look them to their Department. The case was then assigned to team D9 Section of the SCID Panti Yaba, Lagos which was headed by the Appellant as the Team Leader. When Ernest N. Onyekwere was handed over to the Appellant’s team. Appellant asked what the problem was leading to the injuries and he was informed by the deceased that he was pushed down from a moving vehicle and the consequences were the injuries noticed on him for which he was receiving treatment in hospital from where he was arrested by police.
Appellant had six (6) police officers who worked under him amongst them were Inspector Victor Ukah and Sgt. Abiodun Ogundele. Investigations commenced and on 18th June, 2002, Inspector Victor Ukah and Abiodun Ogundele reported to the
Appellant that the deceased took ill during the night and Appellant directed Inspector Victor Ukah, Sgt. Abiodun, Sg1. Emmanuel Akpan, Cpl Ola Oladipupo and Cp1 Kenneth Obayegbo to take the deceased to the General Hospital, Ikeja for treatment, which they did.
About four (4) days after the deceased was taken from the office to the General Hospital for treatment, the police officers came back to the office to report to the Appellant that Ernest N. Onyekwere died while waiting to be attended to by the doctor at the hospital. Appellant in turn informed his superior officer, D C, O/C Homicide of the development and the O/C Homicide, the appellant and a police photographer went to the General Hospital Ikeja Mortuary to see the body, saw the body and photographed the body and returned to the office.
The police referred the matter to the Homicide Section and one Supol James Nwakama detailed to investigate the death of Ernest N. Onyekwere.
The autopsy which was scheduled for 21st June, 2002, was suddenly shifted to 24th June, 2002.
The body of Ernest N. Onyekwere which was deposited at the General Hospital Mortuary by the police was
removed from the said mortuary to General Hospital Lagos by the relations of Ernest Onyekwere without the consent/authority of the police. There were series of interference with the body of the deceased before an autopsy was eventually conducted on the body at the General Hospital Lagos. When the alleged autopsy was conducted, the same was not carried out in the presence and or involvement of the police.
No evidence on who identified the body as that of Ernest N. Onyekwere before the alleged autopsy was carried out and no result of the autopsy was produced and made available at the trial of the Appellant in Court.
Appellant and members of his team was arrested and asked to make statements which they did. The Police Preliminary Investigation Report, which was Exhibit L, exonerated Appellant and recommended the six officers who were in the team led by the Appellant for prosecution.
As it turned out, all the six police officers recommended for prosecution went aground and only the Appellant was charged to Court, tried and convicted and sentenced to death by hanging on the 6th December, 2007.
Appeal by the Appellant to the
Court of Appeal was allowed on the 1st February, 2013 and rather than grant the order of discharge and acquittal of the appellant, the Court of Appeal ordered a retrial of the appellant and without advancing any reasons and doing so in the Peculiar circumstances of the case were never taken into consideration by the Court. It is based on this that the Appellant has further appealed to this Court.”
In compliance with the rules of Court, briefs of argument were exchanged by the parties. The Appellants brief was settled by one Ocha P. Ulegede, Esq. and filed on 24/11/1015.
The Respondent’s brief of argument was however settled by E. I. Alakija (Mrs.) D.P.P., Office of the Hon. Attorney-General and Commissioner for Justice, Lagos State and filed on 25/1/2016.
On the 7th of April, 2017 when the appeal was heard, both Counsel representing the two parties, adopted and relied on their respective brief argument, while the Counsel for the Appellant urged that the appeal be allowed, a dismissal was sought for by the Respondent.
For the determination of this appeal, the sole issue raised on behalf of the appellant from the three grounds of
appeal is as follows:-
“Whether the order for retrial made by the Honorable Court of Appeal without giving any reason; nor considering the circumstances of the Appellants case was proper.”
The foregoing issue was adopted also by the Respondent. In arguing the appeal, learned Counsel for the Appellant’ submitted that, the lower Court did not provide a basis for ordering a retrial (fresh trial) and none can be deduced from its Judgment. The evidence adduced at the trial and other circumstances of the Appellant’s disposition and that of the prosecution witnesses, the contradictions, the roles played by the trial Judge and the prosecuting Counsel which were highlighted were not considered before the order of retrial was made. It is settled principle of law that before an order of retrial is made, it is necessary to consider the proceedings of the trial Court and to examine the evidence led as well as the entire circumstance of the case. See: EYOKOROMO & 1 OR v. THE STATE (1979) 6-9 S.C. (reprinted) 3 at 10-11, YESUFU ABODUNDU & ORS v. THE QUEEN (1959) 1 NSCC 56 at 60, EDIBO v. THE STATE (2007) All FWLR (Pt. 384) 192, SALISU
YAHAYA v. THE STATE (2002) 2 SC (Pt. 1) 1 at 13.
Learned Counsel for the Appellant further submitted that, all the facts stated must exist conjunctively before an order of retrial can be ordered.
These factors do not co-exist conjunctively in the instant appeal and therefore the order for retrial or fresh trial made is not proper and this Court is urged to allow this appeal and return a verdict of discharge and acquittal in favour of the Appellant.
The circumstances of the retrial will be prejudicial to the Appellant. See:- SAMAILA UMARU v. THE STATE (2009) MJSC 114 AT 125-126 Paragraphs F-E, OKEGBU v. THE STATE (1979) All NLR 200. Learned Counsel finally urged this Court to allow this appeal, considering the circumstances of this case, discharge and acquit the Appellant in the overall interest of justice.
In response to the above submission of the Appellant; Learned Counsel for the Respondent contended that, the Appellant had brought out the principles governing the order of retrial as settled by the Supreme Court, in the cases of YESUFU ABONDUNDU & ORS v. THE QUEEN (supra), EYOKOROMO & 1 OR v. THE STATE
(supra). However, the Court of Appeal, complied with the guiding principles for an order of a retrial as laid down in the cases cited above, as follows:-
“(a) Error in Law/irregularity in procedure. The learned Counsel submits that the proceedings at the trial Court was found to be faulted with non-compliance with Section 215 of the Criminal Procedure Law.
(b) Error in the observance of the Law of Evidence, the learned trial Judge admitted in admissible evidence and relied on same to convict Appellant.
(c) Evidence taken at the trial discloses a substantial case against the Appellant. The evidence indeed discloses substantial case against the Appellant.
(d) No circumstances rendering it oppressive to put the Appellant on trial a second time. The Appellant was sentenced to death. It is the maximum punishment. This case can be distinguished from the case of SAMAILA UMARU v. THE STATE (supra) where the Appellant was sentenced to a number of years and would have spent a substantial part of his sentence if a retrial was upheld.
(e) Sole defence witness. The Appellant testified as a sole defence witness hence there is no
question not being able to get his witness to attend Court to testify in his defence.
(f) Capital offence: The Court of Appeal followed and observed the principles guiding retrial after thoroughly examining the record of proceedings at the lower Court before ordering a retrial.”
Learned Counsel for the Respondent finally urged the Court to make an order of fresh trial as made by the Court of Appeal. Also to dismiss the Appeal.
The facts of this case is quite simple, and presents no complexity. The appeal resonates on the Order made by the Court of Appeal, for a retrial of the case of the Appellant, before another Honourable Judge, which was subject of that Appeal.
The principles governing the order of retrial in criminal cases is already settled by this Court. It is settled that in criminal cases before deciding to order a retrial, the Court must be satisfied:-
(a) that there has been an error in Law (including the observance of the Law of evidence) or an irregularity in the procedure of such a character that on the one hand the trial was not rendered a nullity and on the other hand the Court of Appeal is unable to say that
there has been no miscarriage of justice;
(b) that leaving aside the error or irregularity, the evidence taken as a whole discloses a substantial case against the accused.
(c) that there are no such special circumstances as would render it oppressive to put the Appellant on trial
the second time.
(d) that the offence or offences of which the Appellant was convicted or the consequences to the appellant or any other person of the conviction or acquittal of the Appellant are not merely trivial and;
(e) that to refuse an order for a retrial would occasion a greater miscarriage of justice than to grant it.
All these factors must co-exist before a case may be sent back for retrial. See:- ABODUNDU v. QUEEN (1959) SCNLR 162; ANKWA v. THE STATE (1969) 1 All NLR 133; AKINFE v. THE STATE (1988) 3 NWLR (Pt. 85), DIKE v. THE STATE (1996) 5 NWLR (Pt. 450) 553; GANIYU v. THE STATE (2013) 4-5 SC (Pt. 1) 71, where this Court decided that long detention of the accused person is no ground to refuse to order-retrial.
This is the state of the Law. The learned Counsel for the Appellant had earlier argued that the lower Court (Court of
Appeal) did not provide a basis for ordering a retrial and none can be deduced from its judgment. The evidence adduced at the trial and other circumstances of the Appellant’s disposition and that of the prosecution witnesses, the contradictions, the roles played by the trial judge and the prosecuting counsel which were highlighted were not considered before order of retrial is made. It would be necessary for this Court to consider the proceedings of the trial Court and to examine the evidence led as well the entire circumstance of the case. All the factors stated in the case must exist conjunctively before an order of retrial can be ordered. From the record of proceedings the following can be discerned namely:-
“(1) The Appellant was arrested in June, 2002 and he has been in detention since then, a total of about 11-12 – years
(2) The Police Preliminary investigation, Exhibit L, before the trial Court exonerated the appellant from prosecution and recommended the six Police Officers whom were in the appellants team and detailed by the appellant to investigate the deceased for prosecution.
(3) The unauthorized removal
and tampering with the corpse of Ernest N. Onyekwere when the same was removed from the Ikeja General Hospital to the Lagos Hospital without the consent, knowledge or approval of the police by the relatives of the deceased.
(4) Absence of any Police Officer and a person to identify the corpse of deceased as the body of Ernest N. Onyekwere to the Doctor who performed the autopsy.
(5) Absence of any Autopsy Report on the body purported to be that of Ernest N. Onyekwere.
(6) The fact that appellant denied the commission of the offence.
(7) The fact that appellant maintained uncontradicted that he never worked at the CID Ikeja where the offence was alleged to have taken place but at Panti SCID. Yaba
(8) The unchallenged version of the existing injuries which deceased sustained consequent on the alleged pushing from a moving vehicle in May 2002, less than a month before the alleged death of deceased.
(9) The time lag between the commission of the alleged offence and the time the retrial would take.
(10) The difficulties in procuring witnesses on the both sides to testify before the Court in a retrial.
(11) The fact that
some of the witnesses may never be traced, may have died and or may be unwilling to come forward to testify in the retrial.”
Those issues were before the Court of Appeal. The Court not being a final Court was enjoined to consider and resolve all the issues raised in the appeal. The issues above are not trivial.
“The Appellant at the Court of Appeal on page 891 of the records formulated six issues for determination as follows:-
(1) The learned trial Judge erred in law when he proceeded to give Judgment in favour of the prosecution without properly and adequately evaluating the evidence.
(2) The learned Trial Judge erred in law when he convicted and sentenced the Appellant to death when there was no proper arraignment.
(3) The learned trial Judge erred in law when he proceeded to admit the Statement purportedly made by one Sergeant Abiodon Ogundele Exhibit “P” for the purpose of impeaching the credibility of Appellant and relying on the same to convict Appellant and sentencing him to death.
(4) The learned Trial Judge erred in law when in admitting inadmissible evidence and relying on the same to convict the Appellant and the
same has occasioned miscarriage of justice.
(5) The learned Trial Judge was biased and displayed unusual interest in ensuring the conviction of the Appellant willy nilly.
(6) The Judgment of the Court is unreasonable, unwarranted and against the weight of evidence.”
“The Respondent formulated two issues thus:
(1) Whether having regard to the trial of the case, the Appellant was not properly arraigned before the lower Court.
(2) Haring regard to the facts and circumstances of this case, whether the lower Court was not perfectly right in holding that the Appellant is guilty of murdering the late Ernest Ndudiri Onyekwere.”
The Court of Appeal on page 892 of the records, after the examination of the issues above, stated as follows:-
“I have carefully considered the issues formulated for determination on behalf of Appellant and Respondent. I am of the view having carefully perused the Judgment of the lower Court and studied both the Appellant and Respondent’s Brief that the issues for determination in this Appeal can be condensed into one single issue:
Whether the lower Court conducted the Trial in strict
compliance with the mandatory requirement relating to the procedure in a Criminal trial which is a pre-requisite of a valid trial, complying with the provisions of Section 215 of the Criminal Procedure Law and Section 36 (6)(a) of the 1999 Constitution.”
“I shall determine this appeal on the lone issue as formulated above”.
“The provision on valid arraignment contemplates that an accused person must properly be arraigned in Court at the Commencement of his trial. It also contemplates that whenever there is any amendment to an existing charge such amendment must first be read and explained to the accused and the accused must first plead thereto the same before trial on the amended charge should commence. It does not contemplate and or allow a situation, where, like in the instant case, the charge and the amended charge is read/explained to the accused and his plea taken only after the trial has ended and in fact final addresses of parties had been adopted and case reserved for Judgment and addresses re-adopted and case re-adjourned for Judgment which was never delivered.
In this instant case, the arraignment and trial being
null and void, the Judgment entered by the lower Court on 6th December, 2007 by Hon. Justice D. O. Oluwayemi is hereby set aside. The conviction and sentence are accordingly quashed.
It is hereby Ordered that the case be remitted to the Honourable Chief Judge of Lagos State for reassignment to another Judge of that Court for a fresh trial.”
The Court of Appeal from above, abandoned all other issues in the appeal, and considered only the issue No 2, on Arraignment, under Section 215 of the Criminal Procedure Law. Upon finding that Section 215 of the Criminal Procedure Law was not complied with by the trial Court, it quashed the trial, conviction and sentence and ordered fresh trial.
The Court did not give consideration to the other issues in the appeal. It was contended that the evidence on which the Appellant was tried, was full of material contradictions. While it may be conceded that the issue of plea and arraignment under Section 215 of the Criminal Procedure Law is fundamental to criminal proceedings and capable in appropriate cases of rendering a trial a nullity, it does not call for the exercise of discretion as was erroneously
done by the Court of Appeal. The Courts of Law should guide against the abandonment of their traditional and constitutional role of being an umpire between parties to a dispute. The Court must confine itself to the issues raised by the parties.
Each party has a right to have dispute determined upon the merits, and Courts should do everything to favour the fair trial of the questions between them. This Court, (The Supreme Court) stated what the duty and the role of a Court is. See:- MUFUTAU BAKARE v. THE STATE (1987) 3 S.C. 1 at 36.
“The role of a Court is to try all the issues, evaluate the evidence, make appropriate findings and come to a conclusion one way or the other – a conclusion dictated by the natural drift of the evidence and the probabilities of the case.
See also:- MOSES DAKUMA v. THE STATE (1936) 4 S.C. at 24; CHIEF DR. (MRS.) OLUFUNMILAYO RANSOME-KUTI & ORS v. ATTORNEY-GENERAL OF THE FEDERATION COMMISSIONER FOR JUSTICE & ORS (1985) 6 S.C. 246 at 291.
Finally, therefore, the issue of Arraignment was not only issue in the appeal before the lower Court. The other issues in the appeal are left without
What is left for consideration in this case is that, the Court of Appeal did not consider this case, the record of proceeding as a whole to satisfy itself whether an order for a retrial was appropriate in the circumstance of this case. We had stated earlier on that, as a condition governing the order of retrial, all the factors listed by this Court must co-exist before a case may be sent back for retrial. The Judgment of the lower Court has not shown all, or any, of the factors exist to warrant the case of the Appellant to be sent back for retrial. The Appellant has been in custody since 2002. There is no justifiable reason therefore for the order for fresh trial of the Appellant. I resolve the sole issue in this appeal in favour of the Appellant. The appeal is meritorious and therefore allowed. The conviction and sentence of the Appellant by the trial Court for murder on charge No.ID/38C/2003 are hereby set aside. The Order of the Court of Appeal in Appeal No. CA/L/380/2009 remitting the case back to the High Court of Lagos State for fresh trial is hereby set aside. In its place an order discharging and acquitting the
Appellant on charge No. ID/38C/2003 is hereby entered in favour of the Appellant, and it shall be order of the trial Court and the Court of Appeal.