Udeh Kingsley Emeka V. The State (2014)

LAWGLOBAL HUB Lead Judgment Report

SULEIMAN GALADIMA, J.S.C.

This appeal is against the judgment of the court of appeal, Calabar Division delivered on the 13th day of July, 2011, affirming the conviction and sentence of the trial court presided over by HON. JUSTICE GODWIN J. ABRAHAM of Uyo High Court who sentenced the appellant herein to death, for the offence of armed robbery.

The appellant’s appeal to the court of appeal was not successful hence he has now further appealed to this court. In the brief of the appellant and pursuant to the rules of this court, the following four issues are posed for determination:

“3.01. Whether the lower court did not fail in its legal duty to consider and resolve all the issues placed before it particularly issues No. 3 and 4 in the appellant’s brief of argument –

3.02. Whether by failing to consider all the issues placed before it the lower court did not breach the constitutional right of the appellant to fair hearing.

3.03 Whether the decision of the lower court upholding the conviction and sentence of the appellant was not perverse having been reached without any judicial reasoning –

3.04 Whether the lower court was right to have held that there were no material contradictions in the prosecution’s case when it did not even consider what the contradictions were.”

On the part of the respondent the following four issues are submitted for determination:

“1 Whether or not the lower court failed in its legal duty to consider and resolve all the issues placed before it particularly issues No. 3 and 4 in the appellant’s brief of argument.

2. If issue No.1 is answered in the negative, whether or not the lower court breached the constitutional right of the appellant to fair hearing.
3. Whether or not the decision of the lower court upholding the conviction and sentence of the appellant was perverse and reached without any judicial reasoning.
4. Whether the lower court was right to have held that there were no material contradictions in the prosecution’s case and thereby rightly upheld the conviction of the appellant.

Before I go into the consideration of the issues raised in the briefs of the respective parties, it is necessary to set out the facts of the case, as can be gleaned from the records of appeal and particularly the prosecution witnesses.

The appellant was a member of the National Youth Service Scheme posted to Comprehensive Secondary School, Ukpom in Ikono Local Government Area of Akwa Ibom State.

On the 13th August 2005, he was arraigned before the High Court of Akwa Ibom Ikono Judicial Division on four count charge of armed robbery, contrary to Section 1(2) (G) of the Robbery and Firearms (Special Provisions) Act. Cap. 398 laws of the Federation of Nigeria 1990. The charge against him was that on the 31st November, 2004 one Dr. Clement Adolf Bassey (who later testified in this case as PW1) travelled with one Pius Akpan (who later testifies as PW2) from Uyo to Ukpom Ita. At Edet Ukpom market, PW1 who was driving his official car, a Peugeot 504 saloon Car Bestline 2000 series, turned into the premises of Edet Community bank. It was at this point a Mercedes Benz car with three occupants, which had apparently been trailing him, overtook his car. Two of the three occupants in the Mercedes Benz car alighted and fired their automatic rifles sporadically and ordered PW1 and PW2 out of their car. The attackers robbed them of the Peugeot car, valued N2,000,000, driving licence, 3 cheque books, 2 GSM handsets valued N75,000.00 and numerous official documents, properties of PW1.

In the course of the robbery, one of the robbers, (discovered later to be the appellant) dropped a wallet, which PW 2 retrieved after the robbers had driven off. The wallet contained an ID Card issued from the Institute of Management Technology, Enugu (IMTE).

PW1 and PW2 reported the matter to the police at Ukpan Uwana and made statements to the police; and after thorough investigations; the appellant was arrested and subsequently arraigned before the trial court. At the trial Prosecution called 5 witnesses and tendered 10 exhibits, to prove its case. On his part, the appellant who denied the charges against him gave evidence in his defence and called two witnesses, and tendered 4 exhibits.

The learned counsel for both the appellant and the respondent addressed the trial court. Godwin Abraham (J) in a considered judgment convicted and sentenced the appellant to death by hanging. He concluded at page 86 of the record appeal thus:

“I believe from the evidence adduced that the accused person was one of those that robbed PW1 and PW2 on 30/11/2004 as stated in counts one and two of the charge I believe that in the process of the robbery the accused person’s wallet containing among other items his identity card fell from his pocket. I have found that PW1 and PW2 effectively identified the accused person as one of the robbers….”

Affirming the appellant’s conviction and sentence Court of Appeal, concluded as follows:

“It is to be made clear that the trial court rightly convicted the appellant having regard to his identification by PW1 and PW2 as one of the robbers who robbed them on 30th November, 2004 and whose identity as such was proved beyond reasonable doubt at the trial court.”

As I have said, it is from the judgment of the court below that the appellant has now further appealed to this court. It is clear therefore that this appeal is against the concurrent finding made on the facts placed before the two courts.

It is to be noted however, that the parties each formulated three issues for determination. The second issue canvassed in the alternative to the first issue by the respondent’s that the trial court denied him constitutional right to fair hearing. I do not see the need for this stance, because all said and done, the appellant’s complaint is all about not having been fairly heard and grave injustice done to him.

I shall now turn to the issues raised in this appeal seriatim. The appellant’s first issue relates to the alleged failure on the part of the lower court to consider all the issues, particularly issues 3 and 4 placed before it in the appellant’s brief of argument. It is submitted that the lower court having failed to consider in its judgment all issues particularly 3 and 4 this has resulted or occasioned miscarriage of justice; and the effect of this denial could vitiate the entire proceedings and renders the same null and void. Reliance has been placed on the cases of DA KABIRI KIM v. HON. JUSTICE LUKE EMEFO (2001) All FWLR (Pt. 494) 1425 4 NWLR (Pt. 702) 147 at 1445. UZUDA v. EGBAM (2009) All FWLR (Pt. 493) 1224 at 1251; Military Government, Imo State v. NNAWA (1997) 2 NWLR (Pt. 490) 575 at 708; LONGJOHN v. BLACK (1998) 6 NWLR (Pt. 555) 524 at 550.

It is in the light of the foregoing that the appellant has urged this court, in his brief, that issues 1 and 2 be resolved in his favour.

Learned counsel for the respondent in his own wisdom, considers it necessary to argue issues 1 and 2 together. He has submitted that the lower court in the exercise of its discretion adopted all the issues formulated by the respondent, in determining the appeal. He refers to the judgment of the lower court contained on pages 241, 242 and 243 of the record of appeal that this notwithstanding, that court while considering the respondent’s issue No.2 also considered the defence put up by the appellant in his issues 3, 4, and 5.

It is on the basis of the foregoing, learned counsel for the respondent finally submitted that the contention of the appellant that the lower court failed in its legal duty to consider all the issues placed before it is entirely misconceived. He has urged us to resolve issues 1 and 2 in favour of the respondent and accordingly hold that the lower court did not fail to consider and resolve all the issues placed before it and consequently, it did not breach the constitutional right of the appellant to fair hearing.

On the third issue, the appellant has contended that there were material contradictions in the case of prosecution and these were fatal and crucial for the lower court to have carefully considered them, particularly in the evidence of PW1 and PW2. It is submitted that the contradictions, as pointed out in issue No.1 in the appellant’ s brief in the lower court, should have led to the rejection of the evidence of PW1 and PW2 on the issue of how the identity card of the appellant was recovered.

It is the contention of the learned counsel for the prosecution that there were no material contradictions in the prosecution’s case, even if material contradictions had been duly considered by the lower court so as to know whether they were material or not.

There is the fourth issue which poses that the decision of the lower court upholding the conviction and sentence of the appellant was perverse having been reached without any judicial reasoning. It is contended by the appellant that the lower court arrived at a decision on the guilt of the appellant without any judicial reasoning. It is argued that the decision of the lower court was perverse because it made the conclusion that the appellant was rightly convicted, even before setting out to discuss the issues raised for determination in the appeal.

On the other hand, the learned counsel for the respondent has submitted that the decision of the lower court upholding the conviction and sentence of the appellant was not perverse because the decision did not in any way take into account matters which it ought not to have taken into account. Reliance was placed on the following cases: OSUJI v. EKEOCHA (2009) 16 NWR (Pt. 116) 81 at 117, ADIMORA v. AJUFO (1998) 3 NWLR 1 MAKANJUOLA v. BALOGUN (1989) 3 NWLR (Pt.108) p.192. ATOLAGBE v. SHORUN (1985) 1 NWLR (Pt. 2) p.360 etc.

Now to the consideration of the arguments canvassed on the issues raised in the appeal. The first and second issues can be conveniently taken together. It poses the question whether or not the lower court failed in its legal duty to consider and resolve all the issues before it particularly issues No.3 and 4 in the appellant’s brief of argument.

It is rather a triable argument or merely frivolous for the appellant to contend that the appellate court, in considering an appeal before it has no discretion to either adopt the issues formulated for determination by the parties or alternatively formulate such issue(s) it believes would adequately determine the grievance in the appeal. Recently, what this court said in AGBAREH v. MIMRA (2008) 2 NWLR (Pt. 1071) 378 at 410, further emphasis the triteness of the law on this trig-point. It was held thus:

“Finally an appellate court can prefer an issue or issues formulated by any of the parties and can itself and on its own, formulate an issue or issues which in its considered view, is/are germane to and is or are pertinent in the determination of the matter in controversy. See the cases of Musa Sha (Jnr.) 1 & Anor v. Da Rap. Kwan & 4 Ors (2000) 8 NWLR (Pt. 670) 685, (2000) 5 SCNJ 101; Lebile v. The Registered Trustees of Cherubim & Seraphim Church of Zion of Nig. Ugbebla & 3 Ors (2003) 2 NWLR (Pt. 804) 399, (2003) 1 SCNJ 463 at 479 and Emeka Nwana v. Federal Capital Development Authority & 5 Ors (2004) 13 NWLR (Pt. 889) 128 at 142 – 143; (2004) 7 SCNJ 90 at 99 citing several others cases therein.”

What else is apt in the circumstance for the appellate court to do if it cannot be given the discretion of mandate to adopt, modify or even formulate an issue or issues, which in its view would adequately and fairly resolve the complaints in an appeal. See also NATIONAL ASSEMBLY v. C.C.L. Co. LTD. (2008) 5 NWLR (Pt. 1081) 519 at 536.

In the instant case, the Respondent in the court below also as the Respondent in its brief of argument contained on page 186 of the Record of Appeal formulated two issues for determination of the appeal in the following terms:

1. Whether the Trial Court was right in holding that there were no contradictions in the testimonies of the prosecution witnesses in respect of the identity of the Appellant as one of the robbers who robed PW1 as PW2 on November, 2004 and thereby rightly convicted the Appellant as charged.
2. Whether the trial court properly considered all the defences put forward by the Appellant and thereby rightly convicted him as charged.

It is clear that the lower court in the exercise of its discretion adopted the issues formulated by the Respondent in determining the appeal. This can be seen at page 24 of the Record of Appeal where the Court stated as follows:

“The vital evidence in respect of issue No.1 as formulated by the respondent is that PW1 and PW2 properly identified the appellant as one of the robbers who attack them at gun point on 30th November, 2004.”

Again, at page 242 of the Record of Appeal containing the judgment of the court below, the court stated as follows:

“The 2nd issue is whether the trial court properly considered all the defences put forward by the appellant and thereby rightly convicted him as charged.”

In spite of the foregoing the court below while considering the Respondent’s issue No. 2 also went ahead to consider the defences put up by the appellant in his issues 3, 4 and 5 which he complains that they weren’t considered. At page 243 of the record of appeal, the court stated, inter alia thus:

“… It is trite that court has the mandatory duty to consider all the defences in the course of his trial as canvassed by the appellant under issues No. 3, 4, and 5 of his brief. Having read the arguments of the learned counsel for the respondent and having gone over the available record of the trial court, I am satisfied that this appeal ought to be dismissed for the following reasons…”

The reasons the court adumbrated will form the core basis for the resolution of issue No. 3 shortly to be considered. Suffice to say, however that on the foregoing passages, the lower court failed in its legal duty to consider all the issues placed before it is misconceived in its entirety. In the circumstance, I cannot fathom out what the appellant could possibly mean when he complained that all the issues placed before the lower court, particularly issues No. 3 and 4 in the appellant’s brief of argument were not considered.

Having resolved and answered issue No. 2 in the negative, it has become clear that the lower court did not deny the appellant his constitutional right to be fairly heard.

The third issue under consideration is the appellant’s complaint against the founding of the lower court that there were no material contradictions in the prosecutor’s case and thereby rightly upheld the conviction of the appellant.

The general principle in a criminal trial is that the prosecution’s case must not be so riddled with material contradictions and inconsistencies that would make it unsafe to convict the accused person. See PHILIP OMOGODO v. THE STATE (1981) 5 SC. 5; R v. SAMUEL ABENGOWE 3 WACA 85 and RAYMOND OZO v. THE STATE (1971) 1 ALL NLR III. It follows therefore that every contradiction or inconsistency would be fatal to the prosecution’s case. See JOHN AGBO v. THE STATE (2006) 6 NWLR (Pt. 977) 545 at 563, contradictions or inconsistencies to be fatal, it must go to the substance of the case and not to be of minor or trivial nature. The contradictions and sometimes mix-ups in the evidence of prosecution witnesses must be substantial and fundamental amounting to a disparagement of other pieces of evidence adduced: See UDOSEN v. THE STATE 4 NWLR (Pt. 1023) 125 at p.161 and the case of UWAEGHINYA v. THE STATE (2005) 1 NWLR (Pt. 930) at 250.

In the instant case the aspect of the testimony of the prosecution’s witnesses that the appellant claims are contradictory were clearly set out on pages 237-239 of the record of appeal by the court below as follows:

“The learned appellant counsel avers that upon a dispassionate consideration of the situation it is clear that the viva voce evidence of the PW1 contradicts his statement to the police on the issue of recovery of the purse and by extension the ‘identity card’ since it was said to have been retrieved from the purse.”

Also while describing the operation of the robbers the PW1 also contradicted himself. In the statement to the police on 30/11/2004 PW1 stated thus:

“They ordered me into their Mercedes Boot. I pleaded with them that I would not be able to

But in his oral evidence on 28/11/2005 the PW1 stated thus

I was escorted to the boot of the Mercedes Benz. The one escorting me tried to push me into the boot, at this point I could not differentiate between fear and death. I looked at the one who was ordering me more closely and sternly asked me to do whatever he wanted me to that I will not get into the boot.”

On the foregoing the court below then carefully review the arguments of both counsel. The Learned appellant therein queried as to what can be more contradictory than the above two statements. He submitted on page 239 of the record that with regard to the two contradictions pointed out above the trial court ought to have rejected both statements of the incident, similarly, in the court below, the appellant’s counsel has maintained that the trial court had relied on the recovery of the said purse in convicting the appellant since the identity card was said to have been recovered from him. Relying on OGUONEZE v. THE STATE (1998) 5 NWLR (Pt. 551) 52, learned counsel has submitted that where there should be explanation so as to clear the contradiction in the testimony of witnesses, it is the duty of the prosecution to do so and not that the court. The Respondent’s counsel has maintained that the contradictions complained of were not so fatal to the prosecution’s case.

Having set out the contradictions complained of by the appellant, the court below then duly considered them at pages 241-242 of the record of appeal and held as follows:

“The vital evidence in respect of issue No.1 as formulated by the respondent is that PW1 and PW2 properly identified the appellant as one of the robbers who robbed them at gun point on 30th November, 2004. They had ample opportunity and so were in proper position to do so since according to their evidence they recovered a wallet containing an ID card belonging to the appellant at the scene of the crime, which ID card carried a clear photograph of the appellant PW1, based on this, recognized and identified the appellant in court. Nothing stops the trial court from relying on such concrete evidence of identification to convict the accused on it particularly as there were no material contradictions in the prosecution’s case.”

It seems to me the court below took pains to further consider the appellant’s alleged contradictions in the testimonies of the prosecution witnesses, on page 243 of the record of appeal, when it held, inter alia, as follows:

“Having read the argument of the learned counsel for the appellant and the arguments of the learned counsel for the respondent, and having gone over the available record of the trial court, I am satisfied that this appeal ought to be dismissed for the following reasons:

1. There is no doubt or conflict arising from or regarding the recovery of the appellant’s ID Card at the scene of the robbery in this case because the appellant has not controverted or successfully challenged the evidence of PW1 and PW2 on how they recovered his ID card.
2. There were no contradictions at all in the testimonies of the prosecution in this case. The prosecution witnesses properly proved the ingredients of the offence charged.
3. The trial court adverted its mind to and considered the effect of what the appellant inappropriately termed contradictions in this case and decided that they were not contradictions in law and thereby satisfied the requirement of the law in this regard.”

I have stated that for the principle of inconsistency of testimony of witnesses to apply, it must be shown that the contradiction or inconsistency is material and that the trial judge failed to advert his mind to the inconsistency in his judgment thereby resulting in a miscarriage of justice.

However, the court in determining the materiality of the contradiction or inconsistency of testimony of a witness, it would need to view contradiction or inconsistency against the elements of the offence charged. In the instant case the ingredients that the prosecution needs to prove or sustain a charge of armed robbery are:

(i) That there was robbery or series of robberies.

(ii) That the robbery or each robbery was an armed robbery.

(iii) That the accused was one of those who took part in the armed robbery.

In this case all the foregoing ingredients were proved against the appellant. The appellant did not deny or dispute that on the 30th November, 2004, armed robbery in which he was part of took place, PW1 and PW2 properly identified the appellant as one of the robbers. According to their evidence a wallet containing appellant’s identity card, with his clear photograph was recovered at the scene of the crime.

In view of the foregoing, I am therefore of the firm conviction that the court below duly considered the alleged contradictions and was right to have concluded and held that there were no material contradictions in the prosecutions’ case and thereby rightly affirmed the conviction of the appellant. I cannot disturb the concurrent findings of fact of the lower courts.

In the fourth and final issue, the appellant contended in his brief of argument that the decision of the lower court upholding the conviction and sentence of the appellant was perverse, having been reached without any judicial reasoning. He has argued that the decision of the lower court was perverse because it made the conclusion that the appellant was rightly convicted before setting out to discuss the issues raised for determination in the appeal.

I must say from onset that the appellant has erroneously misapplied the principle of “Perverse decision” in the instant case. “Perverse” literally means unacceptable or unreasonable. A decision of court will be regarded as perverse where it is speculative and not based on any evidence; or the court took into account matters, which it ought not to have taken into account; or it shuts its eyes to the obvious. See ATOLAGBE v. SHORUN (1985) 3 NWLR (Pt. 80) P.1; ADEOSUN v. JIBESIN (2001) 11 NWLR (Pt. 724) 290 and OSUJI v. EKEOCHA (2009) 16 NWLR (Pt. 1166) 81.

I am of the firm view that the lower court in upholding the conviction and sentence of the Appellant was not perverse. In this case it is not shown that the court has failed in its function to properly and dispassionately appraise the evidence placed before it.

The court below based its decision on the evidence before it. See again the passage on pages 242 of the record of appeal set out earlier above and its reasons for decision on pages 243, 244 and 245 of the record as earlier referred and set out when in the course of considering the third issue.

The appellant has further, in vain, argued in paragraph 7.04 of his brief of argument that the court below failed to look at the evidence before the trial court or the facts upon which it acted before reaching its decision on the quit of the appellant; that the court in the first paragraph of page 11 of its judgment indicated that it went through the available record of the trial court before being satisfied that the appeal ought to be dismissed.

As rightly observed by the learned counsel for the respondent, the decision of the lower court upholding the conviction and sentence of the appellant was not in any way perverse.

Having resolved all the above issues against the appellant and in favour of the respondent I hold that the appeal is devoid of any merit and is hereby dismissed.

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SC.347/2011