Obinna John V. The State (2019)
LAWGLOBAL HUB Lead Judgment Report
CHIMA CENTUS NWEZE, J.S.C.
At the High Court of Justice, Plateau State of Nigeria, the appellant, (as accused person), was charged with the offence of Armed Robbery contrary to, and punishable under, Section 1 (2) (a) of the Robbery and Firearms Act, Cap 398, Laws of the Federation of Nigeria, 1990.
At the trial of the case, the appellant pleaded not guilty to the Charge. The Prosecution called three witnesses, PW1, PW2 and PW3. Exhibits 1, 2 and 3 were tendered. On his part, the appellant testified as the sole witness. He tendered two exhibits, exhibits 4 and 5.
Persuaded by the Prosecution’s case, the trial Court, on June 21, 2012, convicted the appellant as charged. The Court sentenced him to death by hanging. Having lost his appeal at the Court of Appeal, Jos Division, he has, further, appealed to this Court. He formulated five issues for the determination of his appeal by this Court. On its part, the respondent condensed the issues to three. On my part, I take the view that only the respondent’s first issue is determinative of this appeal. It was framed thus:
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Whether the trial, conviction and sentence passed on the appellant are a nullity in view of the signing of the charge dated 23rd day of October, 2008, for and on behalf of Mrs G. E. Dashe of the Plateau State Ministry of Justice
Before dealing with this issue, a re-statement of the factual background of this case may not be out of place.
FACTUAL BACKGROUND
The Prosecution’s case, which the trial Court believed, and was affirmed by the lower Court, was that the appellant, while armed with a gun, in the company of one John (now at large), robbed one Dorcas Olaniyi, the PW1, on November 18, 2005, of the sum of One Thousand, Seven Hundred and Five Naira (N1, 705, 00) and two rolls of Peak Milk.
On the fateful day, he (the appellant) went to the victim’s shop parading himself as a customer. Samuel, PW2, the victim’s son, went to attend to his demand. The appellant gave the sum of One Hundred Naira to Samuel. As he, Samuel, the PW2, gave him, (the appellant), the tom-tom he asked for and turned to look for the sum of N80.00 for the appellant, the latter pulled a gun and pointed at PW2.
Perceiving danger, PW1, Samuels mother, Dorcas Olaniyi,
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who was lying down in the shop, screamed. The appellant threatened to kill both of them if she, the PW1, did not keep quiet. Having ordered PW1 and PW2 to lie down, the appellant, went away with the money they made for that day and two rolls of Peak Milk.
PW2 jumped up and ran after him, the appellant, together with the other person, John (still at large). John, who was outside diverting customers away from the shop, ran with the appellant. With the assistance of neighbours, PW2 caught the appellant. John, however escaped.
I had, earlier in this judgement, expressed my preference for the respondent’s first issue as being determinative of this appeal. I now take the liberty to further prune it thus:
Whether the appellant’s trial was a nullity because the charge was signed for, and on behalf of Mrs. G.E. Dashe of the Ministry of Justice
ARGUMENTS OF COUNSEL
At the hearing of this appeal on December 13, 2018, T. Kekemeke, Esq., learned counsel for the appellant, appearing with Maxwell Chukwujama, adopted the brief filed on October 20, 2014. He equally adopted the Reply brief filed on June 7, 2017 as representing his arguments in favour of the appellant.
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He devoted pages 4 -15 to the first and second issues: issues which essentially, turned on the validity or otherwise of the charge. His main reason for impugning the said charge is that it was not signed by any known legal practitioner. He cited such cases like Okafor and Nweke [2007] All FVVLR (pt 368) 1016; First Bank of Nigeria Plc v Maiwada and Ors [2012] 51 NSCQR 155 and a host of other cases dealing with the validity of processes signed by persons other than legal practitioners.
Learned appellant’s counsel turned on issue three, to the question whether the trial Court set up a case different from that made by the respondent, pages 15 -20. Although not argued together, issue five, pages 30 -33 of the brief, bears close affinity to issue three. This issue was still on the absence of the gun used for the robbery. Finally, issue four was devoted to questions that have no direct bearing on the fortunes of the appellant in the present appeal. It will, therefore, not detain us here.
RESPONDENT’S SUBMISSIONS
On his part, G. D. Fwomyon, DPP, Plateau State, appearing with G. E. Dashe, DDCR/LR and E. I. Angai, DDLD, MOJ,
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Plateau State, for the respondent, adopted the brief filed on April 15, 2015, although, deemed properly filed on May 10, 2017.
In response to the arguments on the first issue, he cited Section 382 of the Criminal Procedure Code; John Agbo v The State [2006]1 SCNJ 332, 335-337; Uwaekweghinya v State [2005] SCNJ 32, 42; Egbedi v State [1981] 11 12 SC 98. He pointed out that the appellant’s case is not that he was misled by the question of the signature on behalf of Mrs G. E. Dashe. What is more, the appellant and his counsel never objected to any defect to the charge, Timothy v FRN [2013] 4 NWLR (pt. 1344) 213, 231 -243.
Even then, he observed, the so-called irregularity or defect has not occasioned a failure of justice. The charge described an offence known to law. It was read to the appellant, who having understood the charge, pleaded not guilty, Timothy v FRN (supra) 246-217. Neither himself nor his counsel objected to the charge, FRN v Wabara [2013] 5 NWLR (pt 1347) 331; having thus failed to object, it is too late to object, Agbo v State (supra).
On the question of the absence of gun, he cited the unchallenged testimonies of PW1; PW2
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and exhibit 3 (the appellant’s confessional statement). He pointed out that the trial Court’s decision on this question of gun was based on the testimonies of these eye witnesses: testimonies corroborated by the appellant’s confessional statement, exhibit 3. In his submission, the best form of evidence is that of eye witness, Baruwa v State [1996] 7 NWLR (pt. 460) 302, 311; Okosi v State [1989] 2 NWLR (pt 100) 642, 656.
He contended that, having proved all the ingredients of the offence of armed robbery, the non-linkage of the gun to the appellant does not derogate from the fact that he was armed with a gun. The testimonies of PW1 and Pw3 were not impeached to render them unreliable. Above all, failure to tender the weapon is not fatal, Abiodun v. State [2013] 4 SCNJ 153, 168; Ukosi v. The State [1981].
APPELLANT’S REPLY
As indicated earlier, T. Kekemeke, Esq., adopted the Reply brief in which he re-iterated the submissions he had canvassed in the main Brief.
RESOLUTION OF THE ISSUE
It is no longer in doubt that Case Law has identified these constitutive ingredients of the offence of armed robbery,
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namely, that there was a robbery or series of robberies; that the robbers were armed and that the accused persons committed the said offence,Osuagwu v State (2016) LPELR – 40836 (SC) 12 – 13; Suberu v The State [2010] 8 NWLR (pt.1197) 586; Nwachukwu v The State [1985] 1 NWLR (pt. 110) 218; Alabi V The State [1993] 7 NWLR (pt. 307) 551; Olayinka v. The State [2007] 9 NWLR (pt 1040) 561.
Others include:BOZIN v State (1985) 2 NWLR (pt 8) 465, 467; Okosun v AG, Bendel State (1985) 3 NWLR (pt 12) 283; Ikemson v State (1989) 3 NWLR (pt 1100) 455; Adeosun v. State (2007) 46 WRN 1; Afolalu v The State [2010] 16 NWLR (pt 1220) 554; Aruna v The State [1990] 6 NWLR (pt 155) 125; Okosi v. State [1989] 1 NWLR (pt 100) 642.
In order therefore to secure the conviction of an accused person for the offence of armed robbery, the prosecution must satisfy the requirements of these ingredients beyond reasonable doubt. Where this is not done, the case must fail. Put differently, it is the Prosecution’s proof of these ingredients beyond reasonable doubt that would warrant a guilty verdict from the Court of trial, Osuagwu v State (supra); Afolalu v The State (supra); The State v Isiaka
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(2013) LPELR -20521 (SC); Bozin v State (supra) at 467; Alabi v State (supra); Olayinka v State [2007] 9 NWLR (pt.1040) 561; Osetola and Anor v The State [2012] 17 NWLR (pt. 1329) 251, 275.
At the trial Court, PW1 and PW2, victims of the offence testified. Their unequivocal testimonies, which were not impeached, identified the appellant as the man who robbed them. They testified that the appellant was armed when he robbed them. Their testimonies were not discredited in any way as to diminish their probative value as testimonies of eye witnesses, Ukosi v The State (supra).
The appellant’s counsel wasted so much energy on the trial Courts rejection of the gun that was produced. However, that rejection does not detract from the fact the appellant was armed when he robbed the victims. In any event, the Prosecution’s failure to tender the weapon used is not fatal to the beautiful case it presented, Abiodun v The State [2013] 4 SCR] 153, 168.
The lower Court, rightly, affirmed the findings of the trial Court. In effect, the appellant was battling with concurrent findings which he could not prove to be perverse, Ndidi v The State (supra).
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Unable to impugn the concurrent findings on any rational ground, learned counsel for the appellant drummed up the issue of appellant’s fair hearing. The answer to this weak-kneed attempt is to remind him of the inapplicability of the fair hearing doctrine to his case, like this Court did in Adebayo v AG, Ogun State (2008) LPELR – 80 (SC) 23- 24.
For its bearing on the fortune of the appellants’ case, I crave Your Lordships’ indulgence to quote this Court’s view in extenso:
I have seen in recent times that parties who have bad cases embrace and make use of the constitutional provision of fair hearing to bamboozle the adverse party and the Court, with a view to moving the Court away from the live issues in the litigation. They make so much weather and sing the familiar song that the constitutional provision is violated or contravened.
They do not stop there. They rake the defence in most inappropriate cases because they have nothing to canvass in their favour in the case. The fair hearing provision in the Constitution is the machinery or locomotive of justice; not a spare part to propel or invigorate the case of the user. It is not a casual
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principle of law available to a party to be picked up at will in a case and force the Court to apply it to his advantage. On the contrary, it is a formidable and fundamental constitutional provision available to a party who is really denied fair hearing because he was not heard or that he was not properly heard in the case. Let litigants who have nothing useful to advocate in favour of their cases, leave the fair hearing constitutional provision alone because it is not available to them just for the asking. [Italics supplied for emphasis].
It is this same impression that led to the extensive arguments in the appellant’s brief on the absence of signature in the charge. Now, just like Sections 166, 167 and 168 of the old Criminal Procedure Law, Section 382 of the Criminal Procedure Code, which was applicable in Plateau State, at the relevant time, dealt with the effect of errors, defects or omissions in charges at the trial Court, Okewu v FRN [2012] 1 NWLR (pt. 1305) 237, 369; John Agbo v State [2006] 1 SCNJ 332, 335-337; Uwaekweghinya v State [2005] 3 SCNJ 32, 42.
Thus, in order to accentuate the irrelevance of the submissions of the appellant’s counsel, it is necessary to
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adumbrate on the import of this section of the Criminal Procedure Code (supra). By virtue of Section 36 (6) (a) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), every person who is charged with any offence shall be entitled to be informed, promptly, in the language he understands, and in detail, of the nature of the offence.
Only one or two cases may be cited here to illustrate this point, Amala v State [2004] 12 NWLR (pt. 888) 520; Ezeze v State [2004] 14 NWLR Pt 894) 491; Okeke v The State [2003] 15 NWLR (pt. 842) 25; Madu v The State (2012) LPELR -7867 (SC); Solola v The State [2005] 11 NWLR (pt 937) 460. Ostensibly therefore, the statutory prescription that every charge shall state the offence for which the accused person is standing trial stems from this constitutional mandate.
Occasionally however, charges so drafted may contravene any of the rules of drafting charges, such as the rules against ambiguity; duplicity; misjoinder of offenders and misjoinder of offences, see generally, Bob Osamor, Fundamentals of Criminal Procedure Law in Nigeria (Ojodu, Lagos: Dee-Sage Nigeria Limited,2004) 188;
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Doherty, Criminal Procedure in Nigeria Law and Practice (London; Blackstone Press Limited, 1999) 227; O. Onadeko, The Criminal Trial Procedure (Lagos: Lannon Nigeria Ltd, 1998). This is the con in which Section 383 (supra) has to be viewed.
By Section 383 (supra), any objection to a charge for any formal defect [surely, an allegation bordering on the absence of the signature of a known legal practitioner is a formal defect] on the face thereof shall be taken immediately after the charge had been read over to the accused person and not later. Put differently, an accused person is under obligation to raise any objection to any formal defect to a charge before he takes his plea, Ogunye v The State [1999] 5 FWLR (pt.604) 545; Adeniji v The State[2001] 13 NWLR (pt.730) 375; Okeke v The State (2003) 5 SCM 131, 185-186; Solola and Anor v The State (2005) 6 SCM 137, 147; Okewu v FRN(2012) 1 NWLR (pt 1305) 327, 369.
Where he fails to do so, he is presumed to have understood the charge preferred against him, Ogunye v The State (supra); Adeniji v The State (supra); Okeke v The State (supra); Solola and Anor v The State (supra); Okewu v FRN (supra).
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Simply put, therefore, the learned DPP for the respondent was right in his submission that since counsel for the appellant did not raise any objection to the alleged defect in the charge, he cannot now canvass it here, Uwaekweghinya v State (supra); Timothy v FRN [2013] 4 NWLR (Pt 1344) 213, 231 -243; Agbo v State (supra).
In all, I find no merit in this appeal. It is accordingly, dismissed. I affirm the concurrent judgements of the lower Courts. Appeal dismissed.
SC.363/2014