Sunday Okoduwa & Ors V. The State (1988)

LawGlobal-Hub Lead Judgment Report

NNAMANI, J.S.C. 

This case was originally fixed for judgment on 10th March, 1988. On that date, it seemed to the Court that it was necessary to take further address by Counsel on the consequential order the Court ought to make in the event of the appeal being allowed.

Further argument was taken on 14th April, 1988. At the end of that argument, and having previously read the record of proceedings, the briefs filed by counsel as well as the earlier addresses of counsel, I allowed the appeal, set aside the judgments of the High Court and the Court of Appeal. I ordered that the Appellants be tried before another Judge of the High Court of Bendel State. I indicated that I would give my reasons for this judgment on 29th April, 1988. I now give my reasons.

In suit No. U/9C.81 at the High Court of Bendel State, UBIAJA Judicial Division, the Appellants, Sunday Okoduwa, Patience Aghamelo, Patrick Ogun, Anthony Ugboke, Augustine Oboh, Anthony Usman Gogo and Kennedy Iyinbor were charged with the following offence:-

“Robbery, punishable under Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Decree, No. 47 of 1970.

Particulars of Offence

Sunday Okoduwa……………………………………

………………………………………

……………………………………….

……………………………………….

on or about the 20th day of May, 1980, at Uromi in the Ubiaja Judicial Division robbed one Madam Abiba Yayah of the sum of N9,794.00 cash, coral beads worth N46,000 and Gold Trinkets worth about N7,000 and at the time of the robbery you were armed with offensive weapons to wit guns and axes”

At the trial before Ohiwerei, J. 10 witnesses testified for the prosecution. These included the complainant who testified as P.W.6 and her son who testified as P.W.2. The Accused persons gave evidence and some of them called witnesses. Their defence was mainly alibi. At the close of the trial, the learned trial Judge found 6 accused persons, Appellants herein, guilty and sentenced them to death by the firing squad or hanging. An appeal to the Court of Appeal, Benin Judicial Division, was unsuccessful hence the appeal to this Court. All the Appellants filed grounds of appeal which must have been drawn up with the assistance of Prison Officials. However, on the 23rd October, 1987, learned counsel for the Appellants, Mr. B. Olaogun obtained leave of this Court to file and argue additional grounds of appeal.

Two additional grounds of appeal were filed in favour of 2nd Appellant, 2 in favour of 3rd Appellant, and 3 in favour of all the Appellants. Both Mr. Olaogun, and Mr. Edokpayi, learned counsel to the Respondent filed well written briefs of argument for which I must commend both counsel.

In his brief of argument, learned counsel to the Appellants, Mr. Olaogun, identified 6 issues for determination in this appeal. These were –

“1. Were the findings of fact made by the trial Judge and the subsequent affirmation of such finding by the Court of Appeal perverse

2. Were the defences of alibi put up by the Appellants properly rejected by the trial Court
3. Did the Appellants offer any defence which the trial Court and the Court of Appeal failed to consider and were the Appellants, properly convicted
4. Was any defence disclosed by the record which the trial Judge and the Justices of the Court of Appeal failed to consider
5. Were the Appellants given or denied fair hearing by the trial Judge and/or the Justices of the Court of Appeal
6. Was the unequivocal affirmation of the Appellants conviction and sentence by the Court of Appeal justifiable in the circumstances of this case”

The Respondent’s brief has set the issues for determination more concisely, and for the purposes of this appeal only one issue there is relevant. This was-

“Whether the defence of alibi raised by each of the six appellants was adequately and rightly rejected by both the learned trial Judge at Ubiaja and their Lordships in the Court of Appeal”

Both learned Counsel addressed the Court in amplification of their brief. Mr. Olaogun, in oral argument, referred to Exhibit P, the statement of 2nd Appellant to the Police in which her age was recorded as 14 years and also to her testimony at p.107 lines 16-17. He next referred to the alibi raised by the 2nd Appellant in her statement to the Police. He contended that this alibi was never checked by Sgt. Atafo P.W.4 before handing over the case to Sgt. Iyoro. He claimed the 2nd Appellant showed the room where she slept with her uncle on the fateful night. He also complained that, although the Police took statements from the father and mother of the 2nd Appellant, they never called them to give evidence. Mr. Olaogun then concentrated on the manner the learned trial Judge handled the trial referring the Court to portions of the Record where the learned trial Judge in his contention descended into the arena by indulging in extensive cross-examination of defence witnesses, or even cross-examining witnesses not cross-examined by learned Director of Public Prosecutions’ of Bendel State who represented the State. He referred the Court to the cases of David Uso v. Commissioner of Police (1972) 11 S.C. 37 and Yuill v. Yuill (1945) 1 All E.R. 183.

In his address, Mr. Edokpayi concentrated on the issue of discharge or retrial of the Appellants following hints dropped by the Court. He submitted that this was a proper case for remitting to the High Court for trial by another High Court Judge. He conceded that the Appellants had been in custody for over 7 years from May 1980. He addressed the Court too on the manner the learned trial Judge handled the trial. He referred the Court to pp.61, 66 and 69 of the record as to the issue of Contempt of Court.

It seems to me that this appeal can be disposed of only by considering additional ground 2 of the grounds of appeal which Mr. Olaogun argued in his brief of argument at length on behalf of all the Appellants. That ground complained that –

“The learned Justices of the Court of Appeal erred in law and on the facts in affirming the conviction and sentence of death passed on each of the Appellants when there is glaring evidence that the Appellants were not given fair hearing.

Particulars

The 1st, 2nd, 3rd, 4th, 5th and 6th Appellants were not given fair hearing and/or fair trial contrary to Section 33 of the 1979 Constitution of the Federal Republic of Nigeria when their Lordships held and I quote –

(i) “In my view and judging from what actually transpired, as recorded……………the Courts Ruling.”

The whole question relates to the proceedings before Mr. Justice Ohiwerei at the Ubiaja High Court. The complaint had two parts – the contempt charge which the trial Judge planted on learned counsel for the 2nd, 3rd and 5th Appellants in the trial Court, and the effect of that charge on all the Appellants; secondly, the persistent interference in the case by the trial Judge.

As regards the first issue, the problem arose when the Appellants in High Court applied to the, High Court for transfer of their cases to Benin City for trial by Ogbobine, J. At page 61 of the record, Mr. Ehichoya of counsel for the 2nd, 3rd and 5th Appellants stated as follows:-

“I have the instruction of my clients that they do not want this case to be tried before this Court any longer. They expressed fears that they will not receive fair trial. They say if the Court insists on going on with this case they will dispense with my services and hire another counsel of their choice. That is all they told me”

Thereupon 1st, 4th and 6th Appellants all made applications for transfer based on their fear that they would not get justice. As 6th Appellant put it-

“I feel something is going wrong in this case. I know that there is no Court where justice is perfect but I would like this case transferred to High Court, Benin-City.”

In his ruling on pages 65 to 69, the learned trial Judge said-

“I then adjourned the matter to the following day – that is Friday 22nd April, 1983. Immediately after the adjournment Mr. J. S. Ehichoya, counsel to the 2nd, 3rd and 5th accused persons in a burst of anger said sarcastically to the hearing of everybody in Court that if the statement sought to be tendered by Mr. Omo Ehizogie would not be admitted the accused persons might as well plead guilty. I took a mental note of what he said. I however dismissed it as a cowardly effusion because I gave no indication whatsoever what my ruling was likely to be………………………From the totality of the complainants (sic) of the accused persons do not see that they have made any case at all to justify a transfer of this case to another court .. . . . . . . . . . . . . . . . ..Mr. Ehichoya was not only misleading the accused persons but misleading and making a fool of the court.”

Then on page 69 the learned trial Judge ordered Mr. Ehichoya to enter the witness box to show cause why he should not be punished for contempt of court. He went on –

“Mr. Ehichoya, you have heard the ruling of this court in respect of your application and those of the other accused persons. The charge against you is that you conspired with the accused person to impugn the integrity of this court and by making an unjustifiable application to transfer the trial of the accused to High Court presided over by Hon. Justice R.A.I. Ogbobine on the unsubstantiated ground that the accused persons would not receive a fair trial in this Court”

Mr. Ehichoya said that he was very sorry. The court recorded as follows:-

“Mr. Ehichoya burst into the (sic) tears and unable to say anything further”

After consultations were held between all the counsel and the learned trial Judge in his chambers, the learned trial Judge magnanimously cautioned and discharged Mr. Ehichoya. The learned trial Judge then addressed the accused persons, asking them whether they wanted to appeal against his ruling, or they wanted the trial to continue.

It is difficult to see from the record what justified the humiliation that was meted to Mr. Ehichoya. His crime appears to have been that he had the courage to apply, on the instruction of his clients, for the case to be transferred to High Court Benin.

Bursting into tears and total loss of words to me indicates the measure of injustice to which Mr. Ehichoya believed he was being subjected. It was not quite clear on what the learned trial Judge predicated his conclusion that Mr. Ehichoya had conspired with the accused persons to impugn the integrity of the Court. It is settled that it is not contempt of court to criticize the conduct of a judge or the conduct of a court even if such criticism is strongly worded provided that the criticism is fair, temperate and made in good faith See R. v. Metropolitan Police Commissioner ex parte Blackburn (No.2) (1968) 2 Q.B. 150; (1968) 2 All E.R. 319. Also Perere v. R. (1951) A.C. 482.

From what appears later in this judgment as to the undue intervention of the learned trial Judge in the proceedings, it cannot be said that the request for transfer was not a fair one, nor can it be said that whatever implied criticism of the court was contained in the request for transfer, was not fair and was not conveyed in civil and temperate language. The bludgeoning of counsel had its desired effect as I shall show hereunder. The conduct of the learned trial Judge was not only unfair but it was exceedingly high handed. It is hereby deprecated.

As implied earlier, the manner in which the learned trial Judge dealt with him could not have been lost on the other counselor on the accused persons. I do therefore agree with Mr. Olaogun that the proceedings induced fear in the accused persons and their counsel. This could not have led to a fair trial. But the more important complaint is the persistent interference of the Judge in the case. He cross-examined witnesses for the defence at length and often took over the role of the prosecutor. The records are replete with instances of this, but I shall only refer to a few of them. At page 12 of the record, Mr. Edokpayi, learned Senior State Counsel, had indicated that he did not wish to re-examine a prosecution witness, P.W.1, when the learned trial Judge asked questions from which he elicited the following answers-

“Clara told me that the 1st accused took her to the Hotel at 9p.m and had sexual intercourse with her twice. She said she thereafter slept off and could not say whether the 1st accused left her and went out while she was asleep. She said she slept off and did not wake up till 7 a.m. the following day. Clara told me that she is a native of Arne, Uromi and that she lives there”

Again at page 120 of the records, the learned Director of Public Prosecutions of Bendel State had finished cross-examining the 6th Appellant’s witness when the learned trial Judge took over. His cross-examination filled 10 lines of the record and were presumably intended to destroy the credit of the witness. Then at page 17 of the record the learned trial Judge made an observation which covered about 1 1/2 pages. His grouse was that a prosecution witness, Sunday Osoyinbo, appeared to have bought a pair of slippers for the 1st Appellant. He expressed surprise that a prosecution witness should have close dealing with an accused person who was brought from prison custody to court that morning. He ordered that a warrant of arrest be executed on Sunday Osoyinbo. Then finally at pages 215 – 216, of the record, the 1st, 2nd, 3rd, 4th and 5th Appellants had alleged in paragraph (c) of ground 1 of their appeal to the Court of Appeal that there was constant and numerous crucial cross-examination of the prosecution witnesses, the Appellants and their witnesses before and after their objection to being tried at Ubiaja had been duly considered and refused by the learned trial Judge. They referred to pages 12 lines 9 – 15; 26 lines 5 – 19; 39 lines 11 – 23; 41 lines 1 – 32; 44 lines 21 – 24; 45 lines 9 – 10; 46 lines 15 to 17; 58 lines 19 – 26; 64 lines 20 and 21; 64 lines 23 – 24; 64 lines 27 – 28; 65 lines 11 – 32; 66 lines 1 – 32; 67 lines 1 – 32; 68 lines 1 – 32. Then at pages 70, 80, 84, 96, 101, 112, 113, 116, 119 and 120.

It is clear that a Judge is entitled to take part in proceedings before him by way of questions he may need to ask for clarification of certain issues. This is, however, different when as shown above, the learned trial Judge virtually took over the role of the prosecution; worse still, he used the results of his own cross-examination to arrive at the conclusions that could be seen in his judgment. Thus his conclusion as regards the 1st Appellant at page 155 of the record –

“Added to this unbelievable story is the fact that the 1st accused said that because Rebecca, whom he claimed to be his girl friend, could not spend the night with him, she (Rebecca) allowed her visitor and friend to go away with him. In the first place, no girlfriend would readily agree to share her boyfriend with another girl. In the second place, I do not think the 1st accused, who had three wives, could be so starved of sexual intercourse that he was prepared to take the risk of having sexual intercourse with a girl whose antecedent history or particulars he did not know…………………His story is a tissue of lies. I completely reject it.”

It seems quite clear to me that the learned trial Judge jumped into the arena. In David Uso v. Commissioner of Police (1972) 11 S.C. 37 Elias C.J.N. (as he then was) said at page 46-

“In our system of criminal trial, the Judge as umpire is not expected to descend into the arena. This illustrates the difference between the accusatorial and inquisitorial methods of trying an accused person”

In Yuill v. Yuill (1945) 1 All E.R. 183, although the Court of Appeal held that the part a Judge should take during examination of witnesses lay in his discretion and a retrial would not be ordered merely because the Judge took a large part in the examination of witnesses, Lord Greene M.R. said at page 185,

“The part which a Judge ought to take while witnesses are giving their evidence must, of course, rest with his discretion. But with the utmost respect to the Judge it was, I think, unfortunate that

he took so large a part as he did………………………It is of course, always proper for a Judge – and it is his duty – to put questions with a view to elucidating an obscure answer or when he thinks that the witness has misunderstood a question put to him by counsel. If there are certain matters which the Judge considers have not been sufficiently cleared up or questions which he himself thinks ought to have been put, he can, of course take steps to see that the deficiency is made good. It is I think generally more convenient to do this when counsel has finished his questions or is passing to a new subject……………..

Then at page 189, he continued-

“A Judge who observes the demeanour of the witnesses while they are being examined by counsel has from his detached position a much more favourable opportunity of forming a just appreciation than a Judge who himself conducts the examination. If he takes the latter course, he, so to speak, descends into the arena and is liable to have his vision beclouded by the dust of the conflict”

It is my view that, taking the learned trial Judge’s excessive interference, together with his bludgeoning attitude to counsel, witnesses and the Appellants, it cannot be said that the Appellants had a fair trial. The right to a fair hearing is at the root of a just and fair administration of criminal justice. An absence of it always amounts to grave injustice in a matter in which the liberty of the citizen is very much in issue. It is for this reason that the Constitution has given it due importance. Section 33(4) provides that-

“Whenever any person is charged with a criminal offence, he shall unless the charge is withdrawn be entitled to a fair hearing within a reasonable time”

What constitutes fair hearing has been the subject of decisions by this Court. In Ariori v. Elemo (1983) 1 S.C. N.L.R. 1, Aniagolu, J.S.C. said of it at page 28 –

“Fair hearing of which speedy trial is one of the factors that go to make it fair, is therefore, in my view, a right involving the public policy that judicial proceedings shall not fall below a certain standard namely, a standard that trials of cases must be fair.

Put more directly, the question as has been settled many years ago by this Court is whether a reasonable man looking at the whole proceedings would think that the accused persons have had a fair deal. I would say they have not. With all the aggressive cross-examination, and the fear put in their hearts by the way the learned trial Judge dealt with Ehichoya of counsel, the Appellants had anything but a fair trial. The learned Justices of the Court of Appeal obviously thought-differently:-At page 321 Ajose-Adeogun, J.C.A. observed –

“The Court has a duty to defend or protect its integrity impartiality and above all its honour and respect. Having done that and considering the step taken to allay the unwarranted fears of the Appellants and restore their confidence in the continuation of the trial, as quoted above, it will be inappropriate or indeed even erroneous to attempt to describe the rest of the proceedings as amounting to an unfair hearing and/or trial. In my view, and judging from what actually transpired – as recorded even if one were to adopt the test, postulated in the case of Isiyaku Mohammed v. Kano Native Authority (1968) 1 All N.L.R. 424 at 426 (per Ademola, C.J.N.), based on “the impressions of a reasonable person who was present at the trial, whether from his observation justice has been done in the case” the answer must surely be in the positive. This is more so in view of the latitude or choice given to each accused person after the Court’s ruling”

With all respect, I totally disagree with the learned Justice of Appeal. I have already given reasons for the view I hold. This is certainly enough to dispose of this appeal though there is still the matter of what order to make i.e. either one of discharging of the Appellants as submitted by Mr. Olaogun, or one of retrial as submitted by Mr. Edokpayi.

It is clear that what has happened here is not such an irregularity as to render the trial of the Appellants a nullity. What has happened can at best be described as a mistrial. In such a case this Court has power either to order a retrial or to quash the convictions and allow the Appellants to be discharged. State v. Lopez (1968) 1 All N.L.R. 356. Which option the Court will follow will be determined by principles set down by this Court in several cases. In Gwonto v. The State (1983) 1 S.C.N.L.R. 1. This Court was concerned with an irregularity in that Section 33(6)(e) of the 1979 Constitution of Nigeria was not strictly followed. The Court neither quashed the conviction of the Appellants nor ordered a retrial. The Court was not satisfied, having regard to the circumstances of that case, that there was a failure of justice. But it is in the earlier cases that the principles governing the question of a retrial crystalised. In Abondundu v. The Queen (1959) 4 F.S.C. 70. The Federal Supreme Court stated the principles thus:-

“Although the rules guiding an appeal court in ordering are-trial are not exhaustive and may be added or modified from time to time, an appeal court would order a retrial if it is satisfied as to the following:-

1. That there has been such an error in law or an irregularity in procedure which neither renders the trial a nullity nor makes it possible for the appeal court to say that there has been no miscarriage of justice.
2. That apart from the error of law or irregularity in procedure the evidence before the Court discloses a substantial case against the accused.
3. That there are no special circumstances which would make it unjust to put the accused on trial a second time.
4. That the offence for which the accused is charged and their consequences are serious in nature, and
5. That to refuse an order of retrial would occasion a greater injustice than to grant it”

This case was followed in Okegbu v. State (1979) 11 S.C. 1 where this Court decided that an order for retrial must depend on the circumstances of the particular case. Matters to be considered included, the seriousness and prevalence of the offence, the probable duration and expense of the new trial, the ordeal to be undergone for a second time by the prisoner, the lapse of time since the commission of the offence, and its effect on the quality of evidence and the nature of the case of the prosecution against the prisoner as disclosed in the evidence of the first trial; whether substantial or not. See also Ankwa v. State (1969) 1 All N.L.R. 133 and Okafor v. State (1976) 5 SC. 13. Looking at the instant case, the charge against the Appellants is indeed a grave one -armed robbery punishable under Section 1(2)(a) of the Act. The penalty is death by hanging or firing squad. From the evidence of the complainant P.W.6. over Nine thousand Naira in cash was stolen. Also stolen were coral beads worth N46,000 and gold worth N7,000. None of these has been recovered. Besides, if the testimony of P.W.6 and her son P.W.2 is to be believed, and indeed two Courts have believed them, that they were terrorised by hoodlums wielding guns and axes. It is a matter of common knowledge that armed robbery is prevalent in our Society and indeed has become a scourge which must be attacked at every turn. I am of course aware that the Appellants have been in custody for 7 years and have undergone the trauma of the trial the proceedings of which I have dealt with above. Nevertheless, having regard to the severity of the ultimate penalty should they be found guilty in retrial, I do not think that such a retrial would be oppressive. As to whether the case against the Appellants is substantial, or put differently whether the evidence on the record discloses a substantial case against the Appellants to justify a retrial, I cannot deal with this in any detail, as having regard to the conclusion, I am about to reach, it may prejudice their case. Nevertheless, I may just say that the testimony of PW6 does raise a strong prima facie case against the Appellants. The defence of all the Appellants was alibi. This Court recently revisited the principles governing the defence of alibi in Wasari Umani v. The State (1988), 1 N.W.L.R. (Pt. 70) 274. Mr. Olaogun has made powerful submissions in his brief as regards the defence of alibi raised by the 2nd Appellant. It was contended that the alibi she raised in her statement to the Police, Exhibit P, was not investigated. For the 3rd Appellant, it was contended that the testimony of his wife and brother that he was at home on the night of 20/5/80, was not controverted.

As regards the 2nd Appellant, I merely wish to add that it is not true that her alibi was not investigated. P.W.4, Sgt. Atafo, actually stated that he visited Uzea to check on her visit there. He was only unable to visit Benin City to check on her claim that she also visited the City. Besides,

P.W.4’s testimony at page 35 that-

On 21/5/80 the 2nd accused took me and Inspector Adamu to Uzea. When we got to Uzea the 2nd accused could not show us where and whom she visited at Uzea. She could not also show us Clara Okojie or Clara’s house”

shows that the 2nd Appellant’s alibi is not cast iron. Furthermore, Mr. Edokpayi has drawn attention to the conflict between the alibi she raised in her statement to the Police and that in her testimony in Court. The words of Coker, J.S.C. in Kamara Alimi Adio vs. The State (1986) 6 S.C. 119 at 121-112 appears to me apposite. It is true that it is established that once an accused person discharges the evidential burden of adducing evidence of an alibi, the onus is on the prosecution to disprove it. It is equally true, though, that there is a duty on the trial Judge to test the alibi against the evidence adduced by the prosecution. In this case the positive evidence of P.W.6 would have to be tested against the alibis set up by the Appellants. If of course there is still any doubt in the trial Judge’s mind, it would be resolved in the Appellants’ favour. See Oriese nor and Ors v. The State (1965) N.M.L.R. 337; Patrick Njovens and Ors v. The State (1973) 5 S.C. 17 at 85. There is in my view a substantial case against the Appellants as disclosed in the evidence at the earlier trial. The result is that this appeal succeeds, and is allowed.

The judgments of the High Court, Ubiaja Judicial Division and the Court of Appeal, Benin Judicial Division are hereby set aside. It was for these reasons that I allowed the appeal of the Appellants, but ordered that the Appellants be arraigned for re-trial before another Judge of the High Court of Bendel State.K. ESO, J.S.C.: I have had the privilege of a preview of the Reasons for Judgment which have just been delivered by my learned brother Nnamani, J.S.C. I have the honour to agree with these Reasons and would only add a few words for emphasis on the issue of the order we have made in this case especially as we considered it necessary to recall counsel to address us on the issue.

Once we have come to the conclusion that the Appellants had no fair trial, the issue that follows is whether there should be another trial or that the Appellants, having regard to the circumstances, should be left off.

In Abodundu v. The Queen (1959) 4 FSC p.70, the Federal Supreme Court had set out five principles which must be cumulative before an accused person in such circumstance could be put on trial again.

They are

“1. That there has been such an error in law or an irregularity in procedure which neither renders the trial a nullity nor makes it possible for the appeal court to say that there has been no miscarriage of justice.

2. That apart from the error of law or irregularity in procedure the evidence before the Court disclose; a substantive case against the accused;
3. That there are no special circumstances which would make it unjust to put the accused on trial a second time;
4. That the offence for which the accused is charged and their consequences are serious in nature; and
5. That to refuse an order of retrial would occasion a greater injustice than to grant it.”

It is on the fourth principle I would like to comment. How is it to be measured whether an offence for which an accused is charged is serious in nature It is my respectful view that a subjective test must be employed in determination thereof. The times must be taken into consideration. By this I mean, the particular times in the socio-economic and political period of the country must be taken into consideration before determining whether the offence and the consequences are serious in nature. For instance, if it is during an election period, an act of thuggery which, in non-electioneering period, might be viewed lightly should wear another garb – a garb of seriousness.

It would cease to be a mere assault or conduct likely to cause breach of the peace, which it could otherwise have been in a normal climate. It would also become an offence, serious in nature, during such times as strikes, mass resistance to authority or political disturbance.

To come to the present case. It is a case of armed robbery. At this point in time, in this country, armed robbery has become excessively serious. This is a notorious fact and it has to be so viewed. Nobody is safe day or night from the attack of the armed robber. Law, after all, does not exist in theory or in vaccuo. It has to be functional. Functionality demands recognition of the problems of the times and these problems vary from time to time.

For these reasons, and the reasons given by my learned brother Nnamani J.S.C., I would abide by the order of retrial of the Appellants. They are to be arraigned before another Judge (that is a Judge other than the Trial Judge in the case) in the High Court of Bendel State.

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SC.5/1987