Christian Isaac Okoro v. The State

On 15/3/2012, at about 10pm, PW2, Emmanuel Enya, returned to his house at State Housing Estate, Ikom, and when his house maid came out to open the gate for him, she noticed that some men were following him and immediately drew his attention to that. He was subsequently attacked by the Appellant and his co-accused who were armed with locally made gun. They robbed him of the sum of Two Hundred Thousand Naira, 3 clippers, 6 cell phones and jewelries. PW1, the head of a local vigilarnte group at Akparabong village, Ikom, that after he was informed, immediately mobilized his men, who encountered the Appellant and one Simeon Uchenna Oguche, the 2nd accused person having disagreement over the sharing of their loot.

They recovered from the Appellant and his co-accused some amount of money, a pistol and battery shaver. He then

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invited the Police, who arrested the Appellant and his co-accused and took them to the station. 3 witnesses were fielded by the Respondent and Exhibits 1-5 respectively were tendered and admitted including his confessional statement as Exhibit 5. The Appellant rested his case on that of the Respondent. After trial was concluded, the Appellant was convicted and sentenced to death by hanging. His appeal to the lower court was dismissed, hence this appeal.

In his brief of argument filed on 17/6/2021, he formulated 2 issues for the determination of the appeal thus:

(1) Whether the Court Below was right to have affirmed the Appellant’s conviction for Armed Robbery when the Prosecution failed to discharge the burden placed on it by law to prove the offence charged beyond reasonable doubt?

(2) Whether the Court below was right to have affirmed the Appellant’s conviction when the Appellant’s right to fair hearing was circumscribed by the quality of legal representation he received fora capital offence?

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The Respondent on the other hand in his brief filed on 5/8/2022, nominated 2 issues as follows:

1. Whether the Court below was right in holding that prosecution successfully discharged the burden of proving the offence charged beyond reasonable doubt and thereby affirmed the Appellant’s conviction for armed robbery.
2. Whether the lower Court was right in holding that Appellant’s right to fair hearing was not breached by the trial Court and subsequently affirmed his conviction.

ISSUE FOR DETERMINATION:

I shall merge the 2 issues together and retouch them.

Since the right to fair hearing can bring to nullity the whole proceedings, it shall be foremostly considered.

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Whether the right to fair hearing of the Appellant was not breached when the lower court affirmed his conviction and sentence for armed robbery.

SUBMISSIONS OF COUNSELS:

The learned Counsel to the Appellant, relying on section 36 of the Constitution of the Federal Republic of Nigeria, 1999, submitted that the Appellant’s right to fair hearing was contravened by the quality of legal representation he received for a capital offence. That it was wrong for D. N. Ojong, Esq, a new Counsel to the Appellant, to take over on the day of adoption of written address when he was not abreast with the facts of the case involving a capital offence.

Similarly, that the lower court was wrong to affirm that the right to fair hearing and quality representation of the Appellant was not breached when a written address was not filed by the new Counsel for an indigent and helpless

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Appellant involving a capital offence. His contention therefore is that the Appellant did not have legal representation. Reference was made to UDOFIA V. STATE (1988) 3 NWLR (PT.84) 545-546. Again, that where the Defence counsel fails to bring his expertise to bear on the case of an accused in a capital offence, the Court has a duty to consider all the defences available to that accused whether or not they are brought to his attention. He cited in support EDIBO v. STATE (2007) 13 NWLR (PART 1051) 306, GABRIEL V. THE STATE (1989) 5NWLR (PART 122) 457 @ 464.

On the 3 ingredients of armed robbery provided in THE PEOPLE OF LAGOS STATE V. UMARU (2014) 7 NWLR (PART 1407) 584 (@ 609 E: (a) That there was a robbery or series of robbery; (b) That the robbery or each robbery was an armed robbery; and (c) That the accused was one of those who took part in the armed robbery; it was submitted by the

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earned Counsel to the Appellant that the Respondent failed to prove that it was the Appellant who committed the robbery in question. He argued that from the totality of the evidence, there was no proper identification of the Appellant by PW2 and of the items recovered. Hence, the lower court was wrong to affirm the conviction and sentence of the Appellant He relied ANI V. STATE (2009) 16 (NWLR) (PART 1168) 443@460 D-E. That it was established that PW2 was unsure of the exact number of armed robbers and could not tell the complexion of his assailants, although he claimed that there were lights in the rooms and at the security points. He further submitted that the lower court erred to heavily rely on Exhibit 5, the Appellant’s alleged confessional statement.

Even where no objection was raised to the admissibility of a confessional statement, it is still desirable to have some other evidence that corroborate the alleged confession before conviction can be based on it, as he cited in support

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RASHEED LASISI V. STATE (2013) 9 NWLR (PT. 1358) 95-96 B-E, G. He therefore urged this court to allow the appeal and set aside the trial, conviction and sentence of death upon the Appellant and acquit him.

In reaction to the Appellant’s learned Counsel’s submission, the Respondent’s learned Counsel argued that since the defence Counsel was engaged by the Appellant of his own free choice, the quality of legal representation cannot be elevated to an issue of fair hearing since he is bound to swim or sink with services of Counsel as decided in OKEKE V. STATE (2003) 15 NWLR (PT.842) 25. Thus, it is only when a court fails to indulge a party in accordance with the rules of court that issue of lack of fair hearing arises, as held in MAGNA MARITIME LTD V. OTEJU (2005) 22 NSCQR 295 AT 317. Also, that since the Appellant’s learned Counsel chose or elected not to file an address at the trial court, it cannot be said that his right to fair hearing was

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breached to render the trial nugatory or occasion a miscarriage of justice. Again, on the issue of non-consideration of available defences for the Appellant, it was submitted, relying on ABDULLAHI ADA V. STATE (2008) 34 NSCỌR 508, that it is not a matter of speculation but the defence must have been raised before the trial court.

Hence, the Appellant’s right to fair hearing was not breached.

On the ingredients of armed robbery, it was submitted that by the totality of the evidence, PW2 was robbed by the Appellant, as identified by PW2. PW1 also identified the Appellant as one of those persons he arrested sharing the robbery loot with his co-accused. Similarly, that the Appellant made a confessional statement, Exhibit 5, tendered and admitted without objection, which confession was corroborated by the direct and circumstantial evidence of PW1-PW3. Thus, the confession of the Appellant suffices

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to convict him as decided in ISHOR IKPO V. STATE (2016) 13 NCC 513 AT 539. Further, that apart from the confession of the Appellant, some of the items robbed from PW2 shortly after the robbery, not explained to belong to any other person, left no doubt that only the Appellant was a participant in the robbery. He relied on the case of ADESINA KAYODE V. STATE (2016)12 NCC 131 AT 197-198. He therefore prayed this court to resolve the issue in favour of the Appellant and dismiss this appeal for being unmeritorious.

RESOLUTION OF ISSUE:

I have given precedence to the Appellant’s issue of fair hearing because of its topmost importance in every proceeding. The consequence of a denial of the right to fair hearing is a nullification of the entire proceedings, no matter how well conducted. An allegation of denial of fair hearing

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goes to the root of the entire adjudication. It must therefore be considered and resolved before going into the merits of the decision appealed against. See Per ABOKI, J.S.C, in LONGTERM GLOBAL CAPITAL LTD & ANOR V. STANBIC IBTC BANK PLC & ANOR (2022) LPELR-59027(SC) (PP. 24-25 PARAS. E),

The Appellant’s plaint as reflected at pages 18-22 of the record, tersely is that, his right to fair hearing was contravened by the quality of legal representation he received, standing trial for a capital offence. That it was wrong for a new Counsel to the Appellant to take over on the day of adoption of written address when he was not abreast with the facts of the case involving a capital offence.

Similarly, that the lower court ought not to affirm the conviction of the Appellant when a written address was not filed by the new Counsel for an indigent and helpless Appellant involving a capital offence. Also, that the court

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ought to make available to the Appellant possible defences available to him.

The Appellant’s learned Counsel qualified and surmised this grouse as poor “quality of legal representation…for a capital offence” and relied generally on section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). Although no particular reference was made to any subsection of section 36 of the 1999 Constitution by the Appellant, his reference to “quality of legal representation” can be confined and restricted to section 36 (6) (b-c), which provides that: “6. Every person who is charged with a criminal offence shall be entitled to b. be given adequate time and facilities for the preparation of his defence; c. defend himself in person or by legal practitioners of his own choice

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In the instant case, the Appellant chose his own Counsel, E. E. Oji, Esq, who defended his case for him and changed him with D. N. Ojong, Esq, on 20/5/202 14, the day of adoption of written address. Thus, by virtue of section 36 (6) (c), the Appellant defended himself by 2 legal practitioners of “his own choice”, and not assigned by the Court. Similarly, before he changed his personal Counsel, he did not request the Court to assist him with another Counsel or assign one for him since he was standing trial for a capital offence. Therefore, the best person to decide who represents him as Counsel is the Appellant, and that is his constitutional right. See CHIEF M. K. O ABIOLA V. FEDERAL REPUBLIC OF NIGERIA (1996) LPELR-40 (SC). Since the Appellant had already eminently exercised his right to choice of Counsel, he cannot be heard to complain of breach of fair hearing or poor quality of legal representation. This right is not automatic or fundamental

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that it its exercisable by the Appellant at his convenience or whenever he decides to. It is not absolute but qualified. The brunt for the poor quality of legal representation must be borne by the Appellant and cannot now cascade and transform to breach of fair hearing. On this, Per IGUH, JSC, in OKON V. STATE (1995) LPELR-2474{SC) (PP. 13-15 PARAS. E), held:

“The point must be made that there is no absolute or unqualified power in any Court to “assign” counsel to defend an accused person in all criminal cases. Section 33/6](c) of the 1979 Constitution provides as follows: “Every person who is charged with a criminal offence shall be entitled to defend himself in person or by a Legal Practitioner of his own choice…In my view, the provision is intended to ensure, in the interest of justice, that an accused person in a criminal trial is not denied the right to be defended whether by himself or by a legal practitioner. There is, however the provision of Section 352 of the Criminal Procedure Act which stipulates as follows:- “Where a person is accused of a capital offence, the State shall, if practicable, be represented by a law officer or legal practitioner and if the accused is not defended by a legal practitioner, the Court shall, if

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practicable, assign legal practitioner for his defence”…The assignment of counsel by the Court to an accused person in capital offences only arises when such an accused person is unable, or, has abandoned his right to brief a legal practitioner of his own choice to conduct his defence. The reason is because it is mandatory that an accused person shall be defended by a legal practitioner throughout his trial for an offence which involves capital punishment. Consequently, where in such a trial, an accused person fails to brief counsel, the Court shall assign one for his defence as he cannot be kept in custody indefinitely without trial because he does not have a legal practitioner of his own choice to conduct his defence. I think I should add that this duty imposed on the Court to assign counsel to defend an accused person who is unable to brief a legal practitioner for his defence in a capital offence does not, in my view, call for or require the consent of or any consultations with such an accused person before the same may be discharged.

In another twist, the Appellant accused the lower court of affirming the conviction of the Appellant when a written address was not filed by the new Counsel for an indigent and helpless Appellant involving a capital offence! As reflected and contained in the record, it is clear and apparent that the Appellant’s Counsel took part in the trial and cross-

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examined all the Respondent’s witnesses. At the close of the Respondent’s case on 15/3/2013, the Appellant’s Counsel indicated that the Appellant would enter a defence on the next adjourned date. However, on the next adjourned date, being 22/3/20 13, the Appellant’s Counsel rather opted to rest the case of the Appellant on the case of the Respondent. Consequently, the trial Court ordered final addresses of Counsel to be adopted on l1/6/2014. On that fateful date, the Respondent adopted its address while the Appellant’s Counsel orally urged the Court to discharge the Appellant.

Judgment was subsequently delivered on 26/6/2014. The Appellant, unfortunately, having a Counsel that goofed and messed his case, cannot be heard to complain of breach of fair hearing! The “inefficiency or inadequacy of Counsel cannot give rise to a defence that an accused person was denied fair hearing…In law the appellant was bound to swim

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or sink with the services of his own choice”. See per Tobi, JSC, in OKEKE V. STATE (2003) 15 NWLR (PT. 842) 25.

Besides, the delivery of judgment without the Appellant’s written address by the trial court when indulged by the trial court but opted out by the Appellant’s learned Counsel cannot amount to denial of fair hearing or poor “legal representation” as alleged by the Appellant. This Court, Per ABBA AJI, JSC, in BIO V. STATE (2020) LPELR- 50258(Sc) (PP. 21-22 PARAs. B), relying on NEWSWATCH COMM. LTD. V. ATTA (2006) 12 NWLR (PT. 993) 144 AT 175, per Kalgo, JSC, drove this point home thus:

On the denial of fair hearing, the facts are that the parties after close of the case were given 28 days, 14 days each to file their written addresses, at the end of which the appellant counsel was yet to comply. The trial Court then ordered the respondent to file its address within 7 days and foreclosed the right of the defence to file its own and discountenanced its application to file out of time…In our adversary system, it is incumbent upon the parties in a

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case to put their respective cases across the table before the Judge, who as an impartial arbiter and umpire, will adjudicate on the issues in controversy. That is the epitome of fair trial. But where as in the instant case, a party deliberately refused or neglected to lay his case across the table despite all the opportunities granted to him by the Court to do so, up to the time judgment was delivered, that party cannot be heard to complain about the trial being unfair to him. The appellant, who had refused deliberately to avail himself of the opportunity to file written address within time cannot complain of breach to his right to fair hearing… Indeed, the right to fair hearing cannot be used by nor is it for the indolent since equity aids the vigilant and not the lay about! The appellant’s right to fair hearing has not been breached.

A court of law can indulge a party only within the confines of its rules. Where rules of court in line with fair hearing principles order a specific conduct on the part of the parties, the court has a duty to enforce the rules. See Per NIKI TOBI, JSC, in MAGNA MARITIME SERVICES LTD & ANOR V. OTEJU & ANOR (2005) LPELR-1817(SC) (P. 22, PARAS. E-F).

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On the arm that where the Defence counsel fails to bring his expertise to bear on the case of an accused in a capital offence, the Court has a duty to consider all the defences available to that accused, whether or not they are brought to his attention, I must say that the Appellant is making a mountain out of a molehill! It is not an unconditional duty for the court to consider all the possible defences open to an accused person. The defences must be contemplated, pleaded and form part of the evidence. It does not come out of the blues or made automatic as an after thought! Per IKECHI FRANCIS OGBUAGU, JSC, in ADA V. STATE (2008) LPELR-67(SC) (P. 17, PARAS. A-E), addressed it that, “I am aware and this is settled that it is the duty of the Court to consider all defences raised by evidence in the Records even if the defence does not specifically raise them regardless of whether the defences are weak or stupid. As is obvious from this proposition of the law, the defence or all the defences,

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must have been raised in the evidence before the trial Court. Such evidence so  raised, must be in the Records of proceedings. It is not a matter of speculation by the Court.”

Obviously and indeed, this issue of the Appellant cannot fly! On the charge of armed robbery against the Appellant, the Appellant’s main contention is that the “Respondent failed to prove that it was the Appellant who committed the robbery in question”.

The Appellant vide Exhibit 5, tendered and admitted without objection, confessed at pages 15-18 of the record, that he committed the said armed robbery with other 3 persons. The only objection made, which is side traction and after thought, is the quality of legal representation, which has no bearing to the alleged offence of armed robbery the

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Appellant is charged with. It is trite that a free and voluntary confession of guilt, which is direct, positive and satisfactorily proved, is sufficient, without further corroboration to warrant a conviction. See Per PETER-ODILI, JSC, in OLANREWAJU V. STATE (2022) LPELR-57788(SC) (PP. 47-48 PARAS. E). Similarly, in GANIYU V. STATE (2023) LPELR-60156(SC) (P. 41, PARAS. C-F), Per AMINA ADAMU AUGIE, JSC, held that a free and voluntary confession of guilt; if it is direct and positive and is duly made and satisfactorily proved, is sufficient to warrant conviction without corroborative evidence, as long as the Court is satisfied as to the truth of the Confession.

By dint of Exhibit 5, the Appellant has nailed his own coffin that he was the one that committed the armed robbery in question. In most cases, a free and voluntary extra- judicial confession provides the most satisfactory evidence of guilt. It attracts invariably the highest credit because it is

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presumed to be prompted by the strongest sense of guilt. The presumption, which is generally accepted, is that a rational being will not make admissions prejudicial to his interest and safety if the facts confessed are not true. See Per AKPATA, JSC, in ONWUMERE V. STATE (1991) LPELR- 2723(SC) (PP. 22 PARAS. B).

In the present case, there is however the evidence of PW2, the victim of the robbery, who unmistakably identified the Appellant as the one that robbed him. The Appellant was spontaneously identified by PW2 at the police station. Further, PWl also identified the Appellant as one of the persons he arrested sharing the robbery loot with his co- accused.

The evidence of PW2 was direct, thereby obviating the need for identification. The fuss caused by the Appellant over the identity of PW2 cannot be sustained. PW2 categorically

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and positively gave evidence at pages 33-34 of the record as follows:

“The accused was there holding the gun. All the robbers had guns. The 2nd accused held a locally made pistol. It was the 1st accused person that pointed a short gun at me. I do not know whether the gun of the accused was single one or (sic) double barrel gun. The gun that was brought while I was making my statement in the police station was a single barrel gun…

If the accused persons were not brought to the station and the gun too, I would have been able to identify the robbers as they were not masked and the lights were on in my house and in the security points. Yes; these were the two persons who were brought to the station and I was made to see them.

In the straight circumstance of this case, identification or the issue of the identity of the Appellant as one of the armed robbers is not necessary but superfluous! “Identification evidence is not sine qua non for conviction. It is sufficient if credible evidence is adduced to show that the person charged with an offence is the same as the person

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who was Seen committing the offence{s). Identification parade is not necessary in all criminal cases. Identification is simply a means of establishing whether a person charged with an offence is actually the same person who committed the offence. Therefore, once credible evidence abounds, confirming that the person charged was the actual one who committed the offence, as in this instant case, then there will be no need to conduct identification parade at all. Also, the Appellant had identified himself when in his confessional statement Exhibit ‘H, he had fixed himself at the scene of the crime on the day of the incidence. The requirement of formal identification parade is therefore superfluous as rightly held by the two lower Courts.” See Per SANUSI, JSC, in OLAOYE V. STATE (2018) LPELR-43601(SC) (PP. 21-23 PARAS. E).

In addition, some of the items robbed from PW2; the sum of N61,000.00 and 2 clippers were also recovered from

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the Appellant soon after the robbery. The weapon used in the commission of the offence was equally recovered from the Appellant and his co-accused, which recoveries were made within 6 hours of the robbery. At pages 37-38 of the records, these items were tendered as Exhibits 1-3 without objection by the Appellant. It is in circumstances like this that the doctrine of recent possession comes to play. It is undoubtedly the law that a person found in possession of property reported to have been recently stolen, with or without violence from another person, may be convicted. See Per ABBA AJI, JSC in AYODELE V. STATE (2024) LPELR- 62508(SC) (PP. 13-14 PARAS. C). In NWACHUKWU V. STATE (1985) 3 NWLR (PART 11) 218, the Appellant after presenting a toy gun to his victim, snatched the bag of money carried by his victim and ran away. He was chased into a house and with the assistance of the Police, arrested hiding under the bed and lying on the bag of money. It was

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held that Section 148(a) of the Evidence Act applied since the accused was found lying on the bag containing the money, subject matter of the robbery, SO Soon after the robbery. The presumption that accused was one of the robbers was one which on the facts ought to be drawn and was drawn. See also Per KARIBI-WHYTE, JSC, in MADAGWA V. STATE (1988) LPELR-1804{SC) (PP. 49-51 PARAS. E).

The Respondent has sufficiently proved that the Appellant was one of the armed robbers that robbed PW2. The sole issue is resolved against the Appellant. This case is manifestly against the Appellant as no merit is in the appeal. The judgment of the lower court delivered on 30/ 10/2020 is hereby affirmed and the conviction and sentence of the Appellant is sustained. Appeal dismissed.

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UWANI VMUSA ABBA AJI, JUSTICE, SUPREME COURT