Just Decided – Latest SC Judgments – 6th June, 2014.

AREAS OF LAW: 
CRIMINAL LAW, APPEAL, WORDS AND PHRASES, EVIDENCE, COURT

SUMMARY OF FACTS:
The Accused/Appellant was charged before the Abejukolo High Court, Kogi for the offence of culpable homicide punishable with death contrary to section 224 of The Penal Code. The Accused/Appellant raised the defence of provocation in his extra-judicial statement but while presenting his case in the Court, he relied on the defence of self-defence. The trial Court upheld the Accused/Appellant’s defence of provocation and reduced the offence from culpable homicide punishable with death to culpable homicide not punishable with death and sentenced the Accused/Appellant to 10 years imprisonment. Dissatisfied with the decision of the trial Court, the Accused/Appellant appealed to the Court of Appeal where the appeal was dismissed thus culminating into his further appeal to the Supreme Court. 

HELD:
Appeal Dismissed.

ISSUES:
Whether the learned Justices of the Court of Appeal did not err in law when they dismissed the appellants appeal on the ground that the plea of the defence of self-defence was first raised and introduced by the appellant during his oral testimony at trial which thus was clearly insipid, impotent, wobbly, hypothetical, after thought not available to the appellant as the prosecution who has proved the case beyond reasonable doubt cannot controvert the plea of the defence of self-defence at that stage?

Whether the learned Justices of the Court of Appeal did not err in law when they held that the prosecution has proved beyond reasonable doubt all the ingredients of the offence with which the appellant was charged in spite of the failure and refusal to consider the plea of the defence of self defence properly and/or at all, thus Appellant was not heard at all and/or properly on his plea of self-defence.

Whether the entire decision of the Justices of the Court of Appeal is not unreasonable, unwarranted and cannot be supported having regard to the evidence before the panel of the honourable learned justices?


RATIOS:
BURDEN OF PROOF – HE WHO ALLEGES MUST PROVE
“The law is quite clear on this. It is trite that he who alleges must prove”. PER OKORO, JSC GROUNDS OF APPEAL- PARTIES ARGUE ISSUES FOR DETERMINATION AND NOT GROUNDS OF APPEAL
“In appeals before this court, parties do not argue grounds of appeal but issues properly distilled from a ground or a combination of grounds of appeal. PER OKORO, JSC GROUND OF APPEAL- MEANING OF A GROUND OF APPEAL “A ground of appeal is the criticism of unfavourable decision or judgment made against a party being the appellant. It is the totality of the reason why the decision complained of is considered wrong in law or fact or a mixture of both law and fact by a party appealing. PER OKORO, JSC SELF-DEFENCE- SUCCESS OF SELF-DEFENCE EXCULPATES THE ACCUSED FROM CRIMINAL LIABILITY 
“The provision of Sections 33(2) (a) of the 1999 Constitution of the Federal Republic of Nigeria, and Sections 65 and 66 of the penal code declare that where a person is killed as a result of the use of reasonably necessary force to such extent and in such circumstances as is permitted by law in one’s personal defence from unlawful violence or for the defence of property, the death is justifiable and does not violate the right to life. Such a defence, where it avails an accused person, justifies or excuses by law the act or omission of the accused thereby rendering him not liable for the offence charged. It is usually a complete defence to the charge where it is upheld. The sum total of this is that where the defence of self-defence succeeds, the accused person must be discharged and acquitted because he was at the time of killing in reasonable apprehension of death or grievous bodily harm, and felt that it was necessary at the time to use the force which resulted in the death of the deceased in order to preserve himself from danger. PER OKORO, JSC SELF DEFENCE- THE ONUS IS ON THE PROSECUTION TO PROVE THAT SELF-DEFENCE IS NOT AVAILABLE TO THE ACCUSED WHERE IT IS RAISED
“Whenever a defence of self-defence is raised by an accused person, apart from the accused leading evidence to show that he is entitled to the defence, the onus is still on the prosecution to establish that the defence in the circumstance is not available to the accused. PER OKORO, JSC SELF-DEFENCE AND PROVOCATION- EFFECT OF A SUCCESSFUL PLEA OF SELF DEFENCE AND PROVOCATION
“While a plea of self-defence, if successfully raised, completely absolves the offender from criminal responsibility, a plea of provocation, if successful, reduces the offence of murder to manslaughter”. PER OKORO, JSC PROVOCATION- INGREDIENTS AN ACCUSED PERSON MUST ESTABLISH IN A DEFENCE OF PROVOCATION 
“In the defence of provocation, an accused person must show that:
1. There was sudden act of provocation by or from the deceased.
2. That he lost self control as a result of the provocation.
3. That he reacted in the feat of passion and before there was time for his passion to cool, and
4. That the acts were proportional to the provocation. PER OKORO, JSC SELF-DEFENCE- INGREDIENTS FOR ESTABLISHING SELF DEFENCE IN AN OFFENCE OF CULPABLE HOMICIDE 
“For a successful plea of the defence of self defence by an accused person charged with the offence of culpable homicide punishable with death under the penal code, the following must be established by credible evidence:
1. That his life was actually threatened or endangered by the acts of the deceased;
2. That the only option that was opened to him to save his or her life was to use force which was necessary on the deceased at the material time; 
3. That the amount of force used on the deceased was proportionate to the threat or danger posed by the acts of the deceased;
4. That he did not take an undue advantage of the deceased in the process of saving his own life from the danger or threat posed by the deceased;
5. Show that he did not want to fight and that he was at the material time prepared to withdraw from the danger posed to his life by the deceased.
PER OKORO, JSC CULPABLE HOMICIDE- INGREDIENTS THE PROSECUTION MUST PROVE TO GROUND A CONVICTION IN AN OFFENCE OF CULPABLE HOMICIDE PUNISHABLE WITH DEATH 
“Under Section 221(b) of the penal code, the prosecution has to prove the following ingredients in order to secure a conviction for the offence of culpable homicide punishable with death. That is to say:
1. That the death of a human being actually occurred.
2. That it was caused by the act or acts of the accused.
3. That the act/ acts were done with the intent of causing death or
4. That accused knew that death was the probable consequence of his acts. PER OKORO, JSC PROVOCATION- MEANING OF PROVOCATION
“Any act or words may be provocation. Provocation is an act or series of acts done by the deceased (when alive) to the accused person which would cause a reasonable person, a sudden and temporary loss of self control rendering the accused person so subject to passion as to make him for the moment not master of his mind. PER RHODES-VIVOUR, JSC. MURDER- EFFECT OF A SUCCESSFUL DEFENCE OF PROVOCATION IN A CHARGE OF MURDER- POWER OF THE COURT TO GIVE ANY RANGE OF SENTENCE IN MANSLAUGHTER AND MURDER
“In a charge for Murder a successful defence of provocation has the effect of reducing the charge to Manslaughter. Once the accused person is convicted for manslaughter the trial judge has discretion on sentence. Sentence can be a custodial sentence ranging from one day to life imprisonment. Whereas for a conviction for murder there is no discretion. The sentence is death” – PER RHODES-VIVOUR, JSC. DEFENCES- THE COURT SHOULD NOT UPHOLD CONFLICTING DEFENCES BY THE ACCUSED PERSON
While it is the law that in a criminal trial the trial court should consider all defences available to an accused person irrespective of its merit or stupidity, I hold the view that that principle does not mean that the court can uphold conflicting defences. Where the defences raised by an accused person conflicts with one another, the trial court, in my view, though obliged to consider all the conflicting defences must decide on the defence applicable to the case having regard to the evidence on record. Where the facts disclosed in evidence support one as against the other as in this case, the court will adopt the established defence – PER ONNOGHEN JSC. CASES MENTIONED:
AKPAN V. BOB (2010) 77 NWLR (pt. 7223) 427
Asanmonvi v. A.G. Bendel State (1987 N.S.C.C. Vol.18 (Pt.1 ) p.30
APUGO V. STATE (20061 16 NWLR (pt. 10021 227
BIRUWA V. STATE (7992) 1 NWLR (pt. 219) 511, (1992) 1 SCNJ 121,
BARIDAM V. STATE (1994) 1NWLR (pt. 320) 250.
EDOHO V. THE STATE (2010) 14 NWLR (pt.1214) 651, AUDU V. STATE (2003)7NWLR (pt. 810) 516.
EHINLANWO V. OKE (2008) 16 NWLR (pt. 1113) 357 at 395.
GRACE ABRAHAM V. THE SATE (1994) 7 NWLR (pt. 359) 635.
IGAGO V. THE STATE (1999) 14 NWLR (pt. 637) 1(1999) 10 – 12 S.C. 84,
NWOZOKE V. STATE (1988) 1 NWLR (Pt. 72) 529,
OBAJI V. STATE (1965) 1 ALL NLR 269
OBAJI V. THE STATE (1965) NMLR 417.
OKONJI V. STATE (1987) 3 SC 175,
OMINI V. THE STATE (1999)12 NWLR (pt. 630) 168.
OLADELE V. STATE (1991) 1 NWLR (pt.170)708.
OLADIRAN V. STATE (1985) 1 NWLR (pt. 14) 75
R. V. ONYEAMAIZU (1958) NRNLR 93, R. V. OSHUNBTYI (1961) ALL NLR (pt. 41 453 
STEPHEN V. STATE (1986) 5 NWLR (pt. 46) 979; 
THE STATE V. FATAI BAIYEWUNMI (1980) 1N.C.R. 183 MGBOKO V. THE STATE (1972) SC (Reprint) 113,
Queen v. Eseno (1960) N.S.C.C. Vol.1p.36. 
UGBOAIA V. AKINTOYE SOWEMTMO (2008) 16 NWLR (pt 1113) 278, 
UKWUNNENYI V. THE STATE (1989) 4 NWLR (pt.114) 131, EDOHO V. STATE (2010) 14 NWLR (pt.1214) 651 
URAKU V. STATE (1976) 6 SC. 128.

STATUTES REFERRED TO:
The 1999 Constitution of the Federal Republic of Nigeria
Penal code
 

AREAS OF LAW: 
CRIMINAL LAW- ARMED ROBBERY, EVIDENCE- CONCURRENT FINDINGS OF FACTS, APPEALS

SUMMARY OF FACTS:
The 2nd Accused/Appellant was arraigned alongside with the 1st Accused/Appellant at the trial Court on an amended three count charge of criminal conspiracy, armed robbery and culpable homicide punishable with death contrary to Sections 97(1), 298(d), 221 and 79 respectively of the Penal Code. The Accused/Appellants were guilty of all the offences charged and were sentenced to death by hanging. The 2nd and 1st Accused/Appellant appealed against this conviction to the Court of Appeal, Abuja independently but the said two appeals were consolidated by the Court of Appeal. The Court of Appeal dismissed the appeal and irked by the decision of the Court of Appeal, the Accused/Appellants appealed to the Supreme Court. 

HELD:
Appeal Dismissed.

ISSUES FOR DETERMINATION
Whether the Court of Appeal Abuja Division was right when it affirmed the conviction and sentence of the appellant merely on the strength of the confessional statement of the appellant and which confessional statement was retracted by the appellant in his oral testimony before the trial High Court of Kogi State.

Whether the Court of Appeal Abuja Division was right when it affirmed the conviction and sentence of the appellant for conspiracy to commit armed robbery and culpable homicide when there were materials (sic) contradictions in the evidence of the Prosecution before the trial court.

Whether the Court of Appeal Abuja Division was right, in law, in refusing to set aside the conviction and sentence of the appellant having found that it was wrong in law for the trial Judge to pass sentence on only one of the counts as charged after convicting the appellant on the counts of offences contained in the charge sheet before the trial court

RATIOS
CONCURRENT FINDINGS OF FACTS BY THE LOWER COURT- ATTITUDE OF THE SUPREME COURT TO CONCURRENT FINDINGS OF FACTS BY THE LOWER COURT
“It is settled law that the Supreme Court does not make a practice of interfering with concurrent finding of facts by the lower courts except in special circumstances such as where the finding is not supported by evidence on record or is otherwise perverse”. PER ONNOGHEN JSC ERROR- NATURE OF ERROR THAT WILL RESULT IN SETTING ASIDE THE DECISION OF COURT
“It is settled law that it is not every error committed by a lower court that would result in the decision being set aside by an appellate court. For an error to qualify as one that will inevitably lead to the setting aside of the decision/judgment, it must be substantial in nature and must have resulted in a miscarriage of justice to the appellant”. PER ONNOGHEN JSC APPEALS- PURPOSE OF APPEALS
“The purpose of appeals is to correct errors of a lower court with the intention/desire of ensuring substantial justice to the parties and even the court” PER ONNOGHEN JSC ERROR- WHEN AN APPELLATE COURT WILL SET ASIDE THE DECISION OF A LOWER COURT BASED ON ERROR
“Where the error complained of is substantial and is likely to lead to a miscarriage of justice or has resulted in injustice, an appellate court will be eager to set aside the decision. However where the error is not substantial or has in no way resulted in a miscarriage of justice to the appellant, as in the instant case, the court will not set aside the decision because to do so will rather result in injustice to the respondent representing the society at 
large”. PER ONNOGHEN JSC CASES MENTIONED:
Ejelikwu vs State (1993) 7NWLR (Pt. 307) 554 at 583
Hausa vs State (1994) 6 NWLR (Pt. 350) 281 at 309

STATUTES REFERRED TO
Evidence Act 2011
Criminal Procedure Code

AREAS OF LAW: 
CRIMINAL LAW-MURDER, ARMED ROBBERY, EVIDENCE –FINDING OF FACTS.

SUMMARY OF FACTS
The Appellant was a member of the National youth Service Scheme posted to Comprehensive Secondary School, Ukpon 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. In the course of the robbery, one of the robbers, (discovered later to be the appellant) dropped a wallet, which PW2 retrieved after the robbers had driven off. The wallet contained an ID card issued from the Institute of Management and Technology. 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 calling two witnesses, and tendered 4 exhibits. The trial Judge in a considered judgment convicted and sentenced the Appellant to death by hanging. Dissatisfied with the judgement, the Appellant appealed to the Court of Appeal which also affirmed the decision of the trial court. Consequently, the Appellant has appealed to this court.

ISSUES FOR DETERMINATION
“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.”

“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 “

“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.”

HELD
Appeal Dismissed

RATIOS
CRIMINAL TRIAL- GUIDING PRINCIPLE IN A CRIMINAL TRIAL
“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”. PER GALADIMA JSC CONTRADICTIONS- NATURE OF CONTRADICTIONS IN EVIDENCE OF PROSECUTION WITNESSES
“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” PER GALADIMA JSC MURDER-INGREDIENTS THE PROSECUTION MUST PROVE TO SUSTAIN A CHARGE OF MURDER 
“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 to took part in the armed robbery “ PER GALADIMA JSC PERVERSE –DEFINTION OF PERVERSE
“Perverse” literally means unacceptable or unreasonable” PER GALADIMA JSC DECISION OF COURT- WHEN CAN A DECISION OF COURT BE REGARDED AS PERVERSE 
“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. PER GALADIMA JSC CONCURRENT FINDINGS OF FACT-ATTITUDE OF THE SUPREME COURT ON THE CONCURRENT FINDING OF FACTS BY THE LOWER COURTS
“This court rarely disturbs concurrent findings of facts of the two courts below except where there has been an exceptional circumstance such as the findings are found to be perverse, or cannot be supported evidence, or there was a miscarriage of justice or violation of some principle of law or procedure.” PER RHODES-VIVOUR JSC CASES MENTIONED:
Adeosun V Jibesin (2000)11 NWLR(Pt.724) 290 
Agbareh V. Mimra (2008) 2 (Pt.1071) 378 At 410,
Atolagbe V. Shorun (1985) 3NWLR (Pt.80) P.1;
Emeka Nwana V. Federal Capital Development Authority & 5 Ors (2004)NWLR (Pt.889) 128 at 142 -143; (2004)7 SCNJ 90 at 99
John Agbo V. The State (2006) 6 NWLR (Pt. 977) 545 at 563,
Lebile V. The Registered Trustees of Cherubim & Seraphim Church of Zion Ugbebla & 3 Ors (2003) 2 NWLR (Pt.800) 399, (2003) 1 SCNJ 463 At 479 
Musa Sha (Jnr.) 1 & Anor V. Da Rap. Kwan & 4 Ors (2000)8 NWLR (Pt.670) 685, (2000) 5 SCNJ 101;
National Assembly V. C.C.L Co. Ltd 2008 5 NWLR (Pt.1081) 519 at 536.
Oguoneze V. The State (1998) 5 NWLR (Pt.551) 52,
Osuji V. Ekeocha (2009) 16 NWLR(Pt.1166) 81.
Philip Omogodo V. The State (1981) 5 SC. 5; 
R V. Samuel Abengowe 3 WACA 85 
Raymond Ozo V. The State (1971) 1 All NLR
Udosen V. The State 4 NWLR (Pt.1023) 125 at P.161 
Uwaeghinya V. The State (2005) 9 NWLR (Pt.930) At 250.

STATUTES REFERRED TO
Robbery &Firearms (Special Provisions) Act Cap 398 Laws of the Federation of Nigeria 1990
Constitution
Evidence Act