CORAM

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HON. JUSTICE OYEBISI F. OMOLEYE JUSTICE, COURT OF APPEAL

HON. JUSTICE JAMES SHEHU ABIRIYI JUSTICE, COURT OF APPEAL

HON. JUSTICE SAIDU TANKO HUSAINI JUSTICE, COURT OF APPEAL

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PARTIES

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WEMG BAHEMBA IORHEM

APPELLANTS 

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THE STATE

RESPONDENTS 

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AREA(S) OF LAW

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APPEAL, CRIMINAL LAW AND PROCEDURE, EVIDENCE, JUDGEMENT AND ORDERS, PRACTICE AND PROCEDURE, WORDS AND PHRASES

 

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SUMMARY OF FACTS

The Appellant and four others were arraigned and tried for criminal conspiracy and armed robbery. The Respondent’s case at the trial Court was that on the 20th July, 2007 at midnight while the PW3 was sleeping in his house, the malefactors came and knocked at the door and demanded for money saying that if he did not give them money they were going to shoot him. They attempted to open the window. The PW3 therefore gave them some money through the window. Thinking that they had gone, the PW3 came out and was confronted by them. He ran away and left them in his residence. He reported the incident to members of the vigilante in the area. The vigilante members followed him to his residence. But the malefactors had left his house after taking N20, 000.00.

The following day the PW3 reported the incident to the police. The second day, the Chairman of the vigilante group came and told the PW3 that those who robbed him had been apprehended. According to the PW4, three of the people who robbed the PW3 were arrested with the help of the vigilante (members) group. The three arrested persons said five and not three of them only participated in the wrongdoing. With the help of the vigilante members PW4 arrested the other two at Tor Donga.

The Appellant had on the other hand alleged that in July, 2007, it appeared there was going to be another crisis between the Tiv and Kutep people. Soldiers then entered the Appellant’s village and started arresting the Kutep people (his people). He was among more than twenty people arrested. The soldiers took down the names of each of them that was arrested. They were arrested on 17/7/2007. The soldiers took them to the police station Takum. At the police station all others were released on bail. He was the only person that was not released on bail since his father was late.From Takum he was brought to the state CID Jalingo on 17/7/2007. He had been in detention since then. He did not make any statement to the police. He did not make exhibit E. He did not make Exhibit (L) M.

After considering the evidence before it and addresses of learned counsel, the trial Court convicted the Appellant for criminal conspiracy and robbery .The Appellant was accordingly sentenced to a prison term of twenty-one years. The prison term was to commence from 2007 when the Appellant was remanded in prison custody while awaiting his trial.

Dissatisfied with the judgment of the trial Court, the Appellant has filed the instant appeal vide a Notice of Appeal on the 24th March, 2016 and containing six grounds of appeal.

 

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HELD

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Appeal dismissed

 

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ISSUES

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The Appellant formulated the following Issues for Determination:

WHETHER upon the consideration of the circumstance of this Appeal, the failure by the Learned trial Judge to give the decision of the Court within 90 days of the delivery of final addresses does not vitiate the Judgment of the Court regard been had to the fact that the defence of non est factum raised by the Appellant to Exhibits “L” and “E” was not considered by the learned trial Judge before relying on them as confessional statement of the Appellant? (Distilled from Grounds 1 and 3 of the Appellant’s Notice of Appeal).

WHETHER the Learned trial Judge was right when the trial Court convicted the Appellant for the offences of criminal conspiracy to commit Robbery and Robbery contrary to the Provisions of Section 5(b) and Section 1(1) of the Robbery and Firearms (Special Provisions) Act 1990? (Distilled from Ground 2 of the Appellant’s Notice of Appeal).

WHETHER regard being had to the evidence upon the record the prosecution proved by credible evidence the essential ingredients of the offences charged to warrant the conviction of the Appellant by the trial Court? (Distilled from Grounds 4, 5 and 6 of the Appellant’s Notice of Appeal).

The Respondent formulated the following Issues for Determination:

Whether the judgment of the trial Court was a nullity having regard to the provisions of section 294(1) and (5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). Distilled from grounds 1 and 3.

Whether convicting the Appellant under the Robbery and Firearms (Special Provision) Act 1990 rather than Robbery and Firearms (Special Provisions) Act 2004 is capable of vitiating the proceedings and consequently, the conviction of the Appellant. Distilled from ground 2.

Whether from the evidence on record, the judgment of the trial Court ought not to be affirmed and upheld by this Honourable Court. Distilled from grounds 4, 5 and 6. Appeal determined on Issues raised by parties.

 

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RATIONES DECIDENDI

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DELIVERY OF JUDGMENT- DUTY OF AN APPELLATE COURT WHERE A TRIAL COURT FAILS TO DELIVER ITS JUDGMENT WITHIN NINETY DAYS

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“The Court below delivered judgment one hundred and eighty days after adoption of final written addresses. It appears that the Court below was oblivious of Section 294 (1) of the 1999 Constitution (as amended). This in my view explains why no attempt was made by the lower Court to explain the delay in delivering the judgment. It will not be surprising therefore if the Court below also failed to report on the case to the Chairman of the National Judicial Council of its failure to deliver judgment within ninety days from the date of final written addresses as provided for in Section 294 (6) of the 1999 Constitution (as amended). It behoves on this Court in the circumstances to deprecate the Court below not only for the inordinate delay in the delivery of the judgment but also on its failure to explain the delay.” – Per ABIRIYI, J.C.A.

 

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JUDGMENT- CONTENTS OF A WELL WRITTEN JUDGMENT

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“Although the Court below delivered its judgment one hundred and eighty days after adoption of final addresses what it had to show for it was a five page judgment. There is nothing wrong with writing a short judgment; as judgment writing is an art. A written judgment of any Court should give the Judge inner fulfilment or satisfaction. To this end, (1) the Judge is expected to state the claim or reliefs sought by the plaintiff. (2) He should state the relevant facts of the cases for the parties. (3) He should state the arguments of learned counsel for the parties. (4) These are to be followed by the reactions of the Judge to the arguments. (5) Finally the final order/s of the Court. Once these steps are followed the appellate Court cannot say that the judgment was not well written. See Usiobaifo V. Usiobaifo (2005) LPELR – 3428 SC page 27; Ezeuko (Alias Dr. Rev. King V. The State (2016) LPELR – 40046 SC page 56, Mbanefo V. Molokwu & 4 Ors (2014) LPELR – 22257 SC page 44 – 46 and Duru V. Nwosu (1989) 4 NWLR (Pt. 113) 24 at 55. In the instant case, the lower Court failed to state the relevant facts of the cases for both parties. The arguments of learned counsel for the parties were omitted in the judgment. The reactions of the Judge to the arguments of learned counsel for the parties were shoddy. The judgment was therefore poorly written.” – Per ABIRIYI, J.C.A.

 

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FINDINGS OF A LOWER COURT- CONSEQUENCE OF FAILURE TO APPEAL AGAINST FINDINGS OF A LOWER COURT

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“Where an Appellant has not appealed against any finding of a lower Court, the finding is deemed to be valid and subsisting and the appellate Court will not disturb it. See the decision of this Court in Zekeri V. Alhassan (2002) 14 NWLR (Pt. 786) 52.” – Per ABIRIYI, J.C.A.

 

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CONFESSIONAL STATEMENT-FACTS THAT AN ACCUSED PERSON MUST ESTABLISH TO IMPEACH A CONFESSIONAL STATEMENT

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Confessional statements are often denied. The reason in my view is obvious. By the time the accused person comes to defend himself in Court the consequences of the action for which he is on trial stare him glaringly in the face. The law has therefore provided that where an accused person during trial denies making the extra judicial statement he had earlier made to the police immediately after the incident giving rise to the charge against him, he owes it a duty to impeach his earlier statement. During the trial the accused person who desires to impeach his statement is duty bound to establish that his earlier confessional statement cannot be true or correct by showing any of the following:

That he did not in fact make any such statement as presented; or

That he was not correctly recorded; or

That he was unsettled in mind at the time he made the statement; or

That he was induced to make the statement.

See Nsetola V. The State (2012) 6 SCNJ 329 at 351, Nwachukwu V. The State (2007) 17 NWLR (Pt. 1062) 31, Hassan V. The State (2001) 15 NWLR (Pt. 735) 184.” – Per ABIRIYI, J.C.A.

 

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CONFESSIONAL STATEMENT- EFFECT OF A RETRACTED CONFESSIONAL STATEMENT

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“Where the Appellant at the earliest opportunity denies having made the statement, this may lend weight to his denial. See Akpan V. State (1992) LPELR – 1153 SC.” – Per ABIRIYI, J.C.A.

 

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DELIVERY OF JUDGMENT- WHEN A DELAY IN DELIVERY OF JUDGMENT WOULD LEAD TO THE SETTING ASIDE OF THE SAID JUDGMENT BY AN APPELLATE COURT

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“It is common ground between the parties that for the Appellant to invoke Section 294 (1) of the Constitution (as amended) he has to show that by the delay in delivering the judgment he has suffered a miscarriage of justice as provided under Section 294 (4) of the Constitution (as amended). Where it is apparent on the record that the trial Court had lost touch of the evidence led or had forgotten the demeanour of witnesses, it will be held that the delay complained of had led to a miscarriage of justice and such a decision is liable to be set aside by an Appellate Court under Section 294 of the Constitution (as amended). This is because a trial Court watches the demeanour of witnesses, how easily they answer questions, their reaction when confronted with documents. All these come into play when a judge sits to write judgment. A trial Judge writing his judgment after 90 days would have forgotten the impressions he had about the witnesses. See Akoma V. Osenwokwu (2014) LPELR – 22885 SC.” – Per ABIRIYI, J.C.A.

 

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CONFESSIONAL STATEMENT-DUTY OF A TRIAL COURT TO ALWAYS LOOK FOR CORROBORATIVE EVIDENCE OUTSIDE A CONFESSIONAL STATEMENT

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Since the Appellant did not actually deny making the statements Exhibits E and M, the failure to consider whether or not he made the statements was not a result of the delay in delivering the judgment. In any case a consideration of whether the Appellant made Exhibits “E” and “M” had nothing to do with demeanour. It had to do with looking at the statements to see if there is some corroborative evidence outside the confessional statements no matter slight pointing to the guilt of the Appellant. See Akpan V. The State (Supra) Adisa V. State (2013) LPELR – 20684 CA. and Eyop V. the State (2012) LPELR – 20210 CA. The Court would usually look outside the confessional statement whether retracted or not for evidence outside the confession which would make the confession true. See Bassey V. The State (2012) 4 SCNJ 141 at 155 – 156. This inquiry is done without regard to the demeanour of witnesses in Court.” – Per ABIRIYI, J.C.A.

 

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TRIAL – WHETHER A TRIAL AND CONVICTION UNDER A WRONG LAW WOULD LEAD TO AN ACQUITTAL OF AN ACCUSED PERSON

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“If the facts on which an appellant was convicted are known to law the fact that he was charged under a wrong law will not lead to his acquittal. See Olatunbosun V. The State (2013) 7 SCNJ 421 at 447 and Ogunjobi V. F.R.N (2013) 3 NWLR (Pt. 1342) 537. In Adonike V. The State (2015) LPELR – 24281 SC at page 20 Okoro JSC restated the position of the law in the following terms:

“This Court has in its wisdom laid down the principle that an appellate Court will not set aside the conviction of an appellant merely on the complaint that he was tried and convicted under a repealed law if at the time there was an existing law under which he should have been tried and convicted.” – Per ABIRIYI, J.C.A.

 

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PROOF IN CRIMINAL TRIAL –BURDEN OF PROOF IN CRIMINAL TRIAL

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“In a criminal trial the burden of proof lies throughout upon the prosecution to establish the guilt of the accused person beyond reasonable doubt. The burden never shifts. Even where the accused person in his statement to the police admitted committing the offence, the prosecution is not relieved of the burden. Failure to discharge this burden renders the benefit of doubt in favour of the accused so that a wrong person may not be convicted for an offence he never committed. See People of Lagos State V. Umaru (2014) 3 SCNJ 114 at 137 and Igabele V. The State (2006) 6 NWLR (Pt. 975) 100.” – Per ABIRIYI, J.C.A.

 

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CONFESSIONAL STATEMENT- WHETHER A CONFESSIONAL STATEMENT ALONE IS SUFFICIENT TO SUSTAIN CONVICTION OF ITS MAKER

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“A confessional statement once properly proved is sufficient to sustain a conviction despite any retraction by the maker. See Egboghonome V. The State (1993) 7 NWLR (Pt. 307) 383 Galadima V. The State (2012) LPELR – 15530 SC. However the Court must be satisfied that the accused person made the statement.” – Per ABIRIYI, J.C.A.

 

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RETRACTED CONFESSIONAL STATEMENT- WHAT A COURT SHOULD DO IN RESPECT OF A RETRACTED CONFESSIONAL STATEMENT

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“The Court should where the statement has been retracted look for evidence even if slight pointing to the guilt of the accused person. See Akpan V. The State (Supra).” – Per ABIRIYI, J.C.A.

 

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CONFESSION- MEANING OF A CONFESSION

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“A confession is an admission made at any time by a person charged with a crime stating or suggesting by inference that he committed that crime. It is an oral or written acknowledgement of guilt often including details about the crime by an accused person. See Section 28 of the Evidence Act 2011 and Black’s Law Dictionary 8th Edition page 317 and Gira V. The State (1996) 4 NWLR (Pt. 443) 375.” – Per ABIRIYI, J.C.A.

 

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CONFESSIONAL STATEMENT-WHETHER ALLEGATIONS IN A CONFESSIONAL STATEMENT OF AN ACCUSED CAN BE USED AGAINST A CO-ACCUSED

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Learned Attorney General pointed out that the Appellant’s co-accused mentioned him in their statements. With respect to the Learned Attorney General, it is trite that allegations in a statement made by one accused against a co-accused unless the co-accused has adopted the statement will not constitute evidence against the co-accused. See Aikhadueki V. The State (2013) LPELR – 20806 SC, The State V. Onyeukwu (2014) 14 NWLR (Pt. 893) 378 – 379 and Ozaki V. State (1990) 1 NWLR (Pt. 124) 92. As the Appellant has not been shown to have adopted any of statements mentioning him none of them can be evidence against him.” – Per ABIRIYI, J.C.A.

 

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DEFENCE OF ALIBI- NEED TO RAISE THE DEFENCE OF ALIBI ON TIME

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“Alibi is a defence which seeks to persuade the Court that the accused could not possibly be at the scene of the crime as he was somewhere else where, most probably there were people who could testify that at the time of the alleged incident or act, he was not at the scene of the crime. In raising the defence of alibi, the accused must at the earliest opportunity furnish the police with full details of where he was other than where the prosecution alleged that he was at the time of the commission of the offence to enable the police check the details. Failure of the accused to furnish the particulars of the alibi or where he was at the time of the commission of the offence weakens his defence. See Sowemimo V. State (2004) 11 NWLR (Pt. 885) 515. The Appellant raised the defence during his defence. That was late; and not useful to him. It did not matter that the Appellant was not cross-examined on this evidence.” – Per ABIRIYI, J.C.A.

 

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CONSPIRACY-WHAT CONSPIRACY CONSISTS OF

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“Conspiracy consists not merely in the intention of two or more persons but rather in the agreement of two or more persons to do an unlawful act, or to do a lawful act by unlawful means. See Oduneye V. The State (2001) 13 WRN 88.” – Per ABIRIYI, J.C.A.

 

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ROBBERY- MEANING OF ROBBERY

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Robbery is the illegal taking of property from the person of another, or in the person’s presence by violence or intimidation. See Black’s Law Dictionary Eight Edition page 1354. Robbery is defined in Section 11 of the Robbery and Firearms (Special Provisions) Act 2004 as “stealing anything and at or immediately before or after the time of stealing it, using or threatening to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained.” – Per ABIRIYI, J.C.A.

 

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CASES CITED

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NONE

 

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STATUTES REFERRED TO

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1999 Constitution of the Federal Republic of Nigeria (as amended)

Robbery and Firearms (Special Provisions) Act 1990

Robbery and Firearms (Special Provisions) Act 2004 Laws of the Federation.

 

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