Michael Okaroh v S ()  NGSC 77 (19 January 1990);
MICHAEL OKAROH (APPELLANT)
THE STATE (RESPONDENT)
(1990) All N.L.R. 130
Division: Supreme Court of Nigeria
Date of Judgment: 19th January 1990
Before: Eso, Kawu, Belgore, Nnaemeka-Agu, Wali JJ.S.C.
The appellant was charged with culpable homicide punishable with death contrary to section 85 of the Penal Code read together with section 221 thereof.
The prosecution alleged that on the 15th of February 1983 the appellant carried the deceased on his motorcycle to Miango Road, Jos on the pretext that they were going to see his (appellant's) business premises. On their way, the appellant's hired co-conspirator one Tanko Ayiku of unknown whereabouts attacked and killed the deceased with a butcher's knife.
The appellant appealed against his conviction by the High Court to the court of Appeal which confirmed the decision of the former. He further appealed to the Supreme Court contending, inter alia, that a confessional statement allegedly made by him and relied on by the trial Judge was not properly admitted in evidence, that the trial Judge should have allowed a trial within a trial in order to ascertain the voluntariness or otherwise of the statement and that the procedure whereby he was absent at an early stage of the proceedings when some exhibits were tendered against him by the prosecution was wrong and vitiated the trial.
(1) In an appeal complaining of wrongful admission of evidence the question to be asked is whether the trial court would have reached the same conclusion if it had disregarded such evidence which has been wrongly admitted. If this is answered to the positive by virtue of section 226(1) of the Evidence Act, the wrongful admission of evidence is not one upon which an appeal would be allowed.
(2) The proviso to section 226(1) of the Supreme Court Act 1961 provides that an irregularity in Procedure in a criminal proceeding will not result in an appeal being allowed unless the appellate Court is satisfied that a miscarriage of Justice has been occasioned.
(3) A convicted appellant cannot hang upon a mere irregularity in procedure to gain an acquittal unless he can show that such irregularity in procedure led to a substantial miscarriage of Justice.
(4) Though the law still provides for a trial within a trial in Nigeria, conducting same amounts to cosmetic mimicry since the Judge also acts as the Jury and therefore cannot be shielded from any part of the proceedings.
(5) Since the appellant's confessional statement, Exhibit "A" was duly tendered, marked and read in open court in the presence of both the accused and his counsel who did not object thereto he cannot be heard to raise the absence of a mini trial as a ground of appeal.
(6) Even if Exhibit "A" was expunged other facts proved in evidence were sufficient to support the conviction.
(7) Though the trial Judge's record of the proceedings relating to the tendering of Exhibit "A" was defective, on the true facts, there had been no miscarriage of Justice.
(8) Though the appellant was absent from court the day Exhibits "C"-"G" were tendered and admitted, he could not have played any if he was present as the tendering of Exhibits and the rules applicable thereto are purely technical matters. Moreover he was represented by Counsel who did not object to the exhibits being tendered. By reason of the foregoing and the fact that the trial Judge did not rely upon the exhibits for his judgement the proceedings did not amount to a mistrial.
(9) A mistrial does not result from a single slip in the admission or rejection of evidence unless by its very nature it could be said to have run through the whole proceedings or a substantial part of it.
(10) A mistrial is a trial vitiated by some fundamental or serious error or which is procedurally inconclusive, that is, a proceeding so riddled with irregularities that it can be aptly described as a sham.
(11) A Counsel in court in a capital trial owes a very important duty to his client, the court and the society at large of promptly taking objection to every irregularity relating to procedure or to evidence called at the trial. Where, as in the instant, such counsel fails to object to an irregularity in the proceedings, it means that he saw nothing wrong with the procedure adopted at the trial.
Cases referred to:
Akinfe v. State, (1988) 3 N.W.L.R. (Pt. 85) 729.
Akpan v. State (1967) N.M.L.R. 185.
Crane v. D.P.P. 15 Cr. App. R. 153.
Dawa v. State (1980) 8-11 S.C. 236.
Igwe v. R (1960) 5 F.S.C. 55.
Kanu v. R. 14 WACA 30.
Obidiozo v. State (1987) 4 N.W.L.R. (Pt. 67) 748.
Okegbu v. State (1979) 11 S.C. 1.
Okediuwa v. State (1988) 2 N.W.L.R. (Pt. 76) 333.
Orosunlemi v. State (1967) N.M.L.R. 278.
R. v. Banks (1916) 12 Cr. App. R. 74.
R. v. Essien (1939) 5 W.A.C.A. 70.
R. v. Gee (1936) 25 Cr. App. R. 198.
R. v. Lee Kun (1916) 11 Cr. App. R. 293.
R. v. Sykes (1913)8 Cr. App. R. 233.
State v. Lopez (1968) 1 All N.L.R. 356.
Thomas v. Queen (1958) F.S.C. 8.
Statutes referred to:
Criminal Appeal Act 1907 Cap 23. of England.
Evidence Act 1945.
Supreme Court Act 1960.
F.O. Akinrele, S.A.N. for the Appellant. (with D. Akinrele)
Y.I. Daikwang (D.P.P. Plateau State) for the Respondent (with S.I. Aboki, S.S.)
Nnaemeka-Agu, J.S.C.:-This is a further appeal by the accused person, Michael Okaroh, from the judgment of the Court of Appeal, Jos Division, coram: Maidama, Jacks and Mukhtar, JJ.C.A. That court had dismissed his appeal against the judgment of Soluade, J., convicting the appellant of culpable homicide punishable with death contrary to section 85 read together with section 221 of the Penal Code.
The charge before the court of trial was as follows:
"THAT YOU MICHAEL OKAROH, on or about the 15th day of February, 1983 in Jos and within the jurisdiction of this Court, carried one Christopher Okaroh (deceased) on your motor cycle to a stop on the Miange Road in Jos where you had arranged with one Tanko Ayankar Ayiku (now at large) to kill the said Christopher Okaroh and in pursuance of the conspiracy the said Tanko Ayankar Ayiku did kill the said Christopher Okaroh and you thereby committed an offence punishable under section 85 read together with section 221 of the Penal Code."
The fact established by evidence called by the prosecution could be summarized briefly. The deceased was an uncle to the appellant, and both hailed from Ogidi in Anambra State, to which town Union both of them belonged. The appellant who had been trained as a trader by the deceased demanded from the latter
N6,000.00 with which to commence trading business. Because of his failure or refusal to give him the sum demanded their relationship got badly strained, as a result of which the appellant threatened to kill the deceased. The appellant who was brought down from Yola to Jos had also given the sum of N550.00 or N650.00 to the deceased to keep for him. Appellant also demanded this sum of money, otherwise he would kill the deceased. At a certain stage of the strained relationship both the Ogidi Union, Jos Branch, and PW3 and PW4 intervened. As a result, the deceased was advised to give the appellant N1,000.00 (which he did) and to refund appellant's own money. Instead of starting business with the money the appellant went and bought a motor-cycle. The members of Ogidi Union also advised them to live apart, and the appellant moved out to Miango Road, Jos. It was also in evidence from PW3 and PW4 that the appellant several times threatened to kill the deceased.
On the 15th of February, 1983, the appellant called at the house of the deceased and carried him on his motorcycle to Miango Road on the pretext that he was going to show him (the deceased) the premises which he (the appellant) had found for his business. On their way they had to pass through a long and lonely road. There the appellant hired co-conspirator, Tanko, as pre-arranged, attacked the deceased with a butcher's knife and inflicted deep wounds to his neck, skull and chest, as a result of which he died on the spot. The appellant went and reported the matter to the police who accompanied him to the scene where they found the dead body of the deceased. They searched the scene and found the knife used. Sometime after they had returned to the police station, the appellant, the police and PW3, Benjamin Okafor, returned to the scene. Nearby, the appellant showed them where he hid a hand bag of the deceased containing some money.
Charged and cautioned, the appellant volunteered two statements. As one of them is the main plank of the appellant's appeal in this case, I shall deal with the facts later on. After full hearing, the learned trial Judge held, inter alia, as follows:
"The conduct of the accused was a deliberate, calculated, cold blood-murder; carefully prepared, rehearsed and executed according to plan. I reject his defence outright without any hesitation. Although there are certain flaws in the prosecution case earlier referred to, these do not diminish the weight I attach to their evidence.
Having considered the confession together with all the evidence, in my opinion, they are consistent with, and not contradicted or discredited by other evidence.
I am satisfied that the accused acted in concert with Tanko, as a result of which the deceased was killed in pursuance of the conspiracy, I find him guilty as charged and convict him accordingly."
On appeal to the Court of Appeal, Mukhtar, J.C.A., with whose judgment Maidama and Jacks, JJ.C.A., concurred dismissed the appeal; hence this further appeal.
Learned counsel on both sides filed their respective briefs of argument. I believe the issues in the appeal are as formulated by the learned Senior Advocate for the appellant, Mr Akinrele, thus:
"(a) With regards to the records, was the confessional statement of the appellant ever admitted as an Exhibit or was it more likely that the learned trial Judge after the adjournment believed that it was already an Exhibit as opposed to something tendered for identification?
(b) If the learned trial Judge was in error had the appellant the opportunity of a challenge for the purpose of a 'trial within a trial' as to the voluntariness of his statement?
(c) Whether on the whole having regard to the importance of his statement in this case justice has not been miscarried.
(d) Again whether the trial is not vitiated by the taking of evidence in the absence of the appellant."
The first issue was, in fact, strenuously canvassed in the Court of Appeal. Dealing with the point, Mukhtar, J.C.A., concluded that although there were some omissions on the record of some usual jingles in the tendering and admission of such statements, she was satisfied that the statement was duly tendered and admitted in evidence and that, in any event, such omissions as there were did not occasion a miscarriage of Justice.
After a most careful consideration of the facts and circumstances relating to the admission of the appellant's statement, Exh. A, I am inclined to agree with the learned Justice of Appeal. I consider the following facts relevant and material in this regard:
(1) When the statement was produced by PW2, Ayodeji Owoeye, a Superior Police Officer before whom the appellant was taken for the confirmation of the statement which appeared confessional, he was recorded as stating:
"I can recognize the statement-this is the one (produced as Id. "A")
It is noteworthy that it was not recorded thus:
"The statement is produced, tendered for identification, admitted for identification and marked as Id. "A."
This is important if we must understand the record with respect to "Exh. A."
(2) "Exh. A" was never referred to as Exh. A until PW6, Sgt. Matthew Idako, who recorded the statement and so was the correct person to tender it came to testify. He testified as follows:
"I interrogated him and he volunteered statement, he was cautioned in English Language and made a statement in English. He said that he understood the word my caution. Having read the statement to him he said that was correct, and he signed it, I countersigned it.
This is the statement (produced as Exh. A) I took him to PW2 with Exh. A, it was read out by PW2 to the accused, he said that it was his statement he volunteered, it was endorsed by PW2 (statement read)." (italics mine).
Having due regard, as I should, to the manner the learned Judge recorded the admission of "Id. A", for identification, as I pointed out above, I take the words (after the usual formalities).
"This is the statement (produced as Exh. A)"
as representing the learned Judge's method of recording the usual jingles: "Produced, tendered, no objection, admitted and marked as Exh. A."
It is noteworthy that the appellant was then represented by counsel who was expected to have raised an objection to its admission when it was produced and tendered, if he had any, before it was admitted and marked as "Exh. A." Not only did learned counsel not object but also he addressed on the statement at the conclusion of the trial. He was recorded as submitting, inter alia: "The two confessional statements conflict . . ."
The "two confessional statements" of course, refer to Exh. A and B.
(3) Most significantly, the statement in question is clearly marked as "Exh. A." If it was never tendered, as learned counsel to the appellant has suggested, how did it come to be marked as "Exh. A"? I would have expected it to have been still carrying the marking "Id. A."
(4) Above all, according to the record the statement was read in the open court. Again counsel did not object, as he was expected to do if indeed he had any objection. I believe that every counsel is expected to object to an untendered statement being read in open court.
From all these I agree with the learned counsel for the respondent that the statement, Id. A, was duly tendered by PW6, Police Sergeant Matthew Idako, the Officer entitled to tender it, and admit in evidence as Exh. A. What was defective was the learned trial Judge's formulation of the procedure at its being tendered, in his record. It took so much for granted because it departed from the usual jingles such as "tendered, no objection, admitted and marked "Exh. A." Should I because of this hold that the statement was not duly tendered when I am satisfied that it was?
To start with, the fact that the learned counsel for the accused/appellant in the court below was present in court and participated fully in the proceeding goes, indeed, very far. Counsel did not see anything wrong with the procedure and did not complain at the trial. It was only when the record of the proceedings was produced for purposes of appeals and the defective recording by the Judge was noticed that this complaint arose. It goes without saying that a counsel in court in a capital trial has a very important and sacred duty to perform. He owes that duty to not only his client and the court but also to society at large. It is of the very essence of that duty that he should promptly take objection to every irregularity at the trial, be that an irregularity relating to procedure or to evidence called at the trial. Where, as in this case, he did not object, I take it to mean that he saw nothing wrong in the procedure adopted at the trial. At the highest, I would regard the defect, if any, in this case as an irregularity. I believe it to be the correct principle that such an irregularity in procedure in a criminal proceeding will not result in an appeal being allowed unless the appellate court is satisfied that a miscarriage of justice has been occasioned.
In Akpan v. The State (1967) N.M.L.R. 185 the Supreme Court held that a conviction recorded after a failure of a Judge to warn himself or the jury of the danger of acting on a sworn evidence of a child under the age of fourteen is not fatal to the conviction unless the appellate court is satisfied that a miscarriage of justice has been caused. This is of the very essence of the proviso to section 26(1) of the Supreme Court Act, 1960, as also its forerunner, that is, the proviso to section 4(1) of the Criminal Appeal Act of 1907 (Cap. 23) in England. It has been applied to an omission to translate evidence to a foreign defendant: See R. v. Lee Kun (1916) 11 Cr. App. R. 293. It has also been applied in a case in which a defendant was cross-examined on the contents of a letter written by him, but the letter was not produced in court: See R. v. Banks (1916) 12 Cr. App. R. 74. In Nigeria, cases such as the Supreme Court decision in Orosunlemi v. The State (1967) N.M.L.R. 278 and the decision of the West African Court of Appeal in R. v. Essien (1939) 5 W.A.C.A. 70, illustrate the same principle. On a calm view of all these cases and others decided on the above provisos, one conclusion appears to me to be inevitable. It is that a convicted appellant is not permitted to hang upon a mere irregularity in procedure to gain an acquittal unless he can show that such had led to a substantial miscarriage of justice. In other words, criminal justice in our courts is a matter of substance and not one that can be achieved by striking around for any tenuous twig of irregularity or technicality.
Conscious, I believe, of this state of our law, the learned Senior Advocate for the appellant submitted that because the statement, Exh. A, was not duly tendered, it deprived the appellant of the opportunity of an objection which could have led to a trial within a trial. I must confess that I have my reservations about the continued need for a trial within a trial in this country in which our Judges are both Judge and Jury. In England where Judges and jurors are different, there is always the need to prevent jurors from being influenced by arguments (which may mention some of the contents of an inadmissible statement) as to whether or not a particular statement was obtained under duress, or the like. In this country in which it is not possible to shield the Judge, being Judge and jury, from any part of the proceedings, I doubt whether the duplication of the hearing by conducting a trial within the trial is anything but a cosmetic mimicry. It is, regrettably, still the law in this country. Be that as it may, it is always for the learned counsel for the defence, in a case like this in which an accused person is defended by counsel, to raise an objection to the statement being tendered, on the ground that the statement was not voluntary, e.g. allege facts amounting to duress, before a mini-trial becomes necessary. See: The Queen v. lgwe (1960) 5 F.S.C. 55;  SCNLR 158, also Uche Obidiozo & 2 Ors. v. The State (1987) 4 N.W.L.R. (Pt. 67) 748.
Where, as here, counsel failed to play his part and the statement was admitted, he cannot properly raise the absence of a mini-trial on appeal. See Dawa v. The State (1980) 8-11 S.C. 236. In the instant case, on my above conclusions that the statement, Exh. A, was duly tendered, and admitted in evidence, marked and read in open court in the presence of the appellant and his counsel who not only did not raise any objection to its admissibility but also later addressed on it, there can be no question of a trial within a trial. I am therefore satisfied that although the learned trial Judge's record of the proceedings relating to the tendering of the statement, Exh. A, was defective, yet, on the true fact, there has been no miscarriage of Justice.
The learned trial Judge carefully set out the six vital tests adumbrated in R. v. Sykes (1913) 8 Cr. App. R. 233 and applied in a number of Nigerian cases, including Kanu v. The King (1952/53) 14 W.A.C.A. 30; Dawa v. The State (1980) 8-11 S.C. 236 for the use of a confessional statement as a basis for the conviction of an accused person. He applied those principles to the facts of this case and came to the conclusion, rightly in my view, that they applied to this case. Going by that confessional statement, Exh. A., alone, I am satisfied that the appellant was rightly convicted and that the Court of Appeal was right in affirming the conviction.
I wish to make one further observation on a peculiar feature of this case: even if Exh. A. was excluded, other facts proved in evidence are sufficient to support the conviction. The most important of those facts are as follows:
(i) Evidence of PW3 as well as that of the appellant himself in court shows that it was the appellant who on the fateful day conveyed the deceased from his (deceased's) house to the scene of the murder at a lonely spot along Miango Road. The plate number of the appellant's motor-cycle was in fact found at the scene.
(ii) Evidence of PW3 and PW4 shows that before the date of the incident the relationship between the appellant and the deceased has been so badly strained that a number of times the members of Ogidi Union had to intervene to make peace. Several times the appellant threatened to kill the deceased. At a point in time, members of the union advised both of them to live apart.
(iii) On the case the appellant brought to Court, the only issue really was whether the deceased was killed by the appellant and some person or persons acting in collaboration with him or by complete strangers.
(iv) The confessional statement apart, the unchallenged evidence of PW3, a fellow townsman of the appellant, was that the appellant told him that it was he (appellant) who hired one Tanko to kill the deceased. He paid him
N300.00 for the dastardly job.
(v) On the evidence of PW3, when questioned at the scene of the crime the appellant told a lie about the hand bag which the deceased had before he was killed when he stated that it was snatched by the assailants of the deceased. It, however, turned out that the appellant knew where it was. He, in fact, showed the police where it was hidden and it was recovered.
(vi) Contrary to the assertion of the appellant that the assailants ran away after the attack, and obviously carried away the butcher knife in their flight, the blood-stained cutlass was found upon a search near the scene of the crime.
It appears to me that although nobody actually saw the appellant or Tanko deliver the fatal matchet blows on the deceased, the above facts prove the appellant's complicity in the crime with the precision of mathematics. He was therefore rightly convicted.
The above dispose of this appeal: but I should consider the last issue.
On the last issue, learned counsel for the appellant pointed out that from the record the appellant was not present in court at the earlier stage of the proceedings on the 19th of October, 1984, when some exhibits were tendered by PW6. As the appellant did not give notice to be excused from attending the hearing, this procedure adopted was in error and vitiated the trial. This amounted to a mistrial. On this ground alone the appeal should be allowed as it is contrary to section 153 of the Criminal Procedure Code, he submitted.
Now it cannot be doubted that when proceedings opened on the 9th of October, 1984, the appellant was recorded as not being present; but his counsel was present. When learned counsel for the prosecution applied to recall PW6 to tender certain exhibits, appellant's counsel stated:
"I have no objection."
Then following this and the court granting leave, Exhs. C. to G-various items-were tendered and admitted in evidence. These were a matchet, a jumper, the deceased's pair of trousers, the appellant's wrapper, trousers and sweater. After these exhibits had been tendered, learned counsel on his behalf had no question when asked to cross-examine the witness. In his judgment, the learned trial Judge made some observations about the unsatisfactory manner in which the exhibits were handled and tendered. At the end of the day, however, he concluded that all these flaws were not fatal to the case for the prosecution. In truth, apart from saying that the cutlass, Exh. C, tallied with the opinion of the medical witness, PW1, who had stated that the wound found on the deceased was caused by a sharp instrument, no reference was made to any of these exhibits in his judgment. On Exh. C, it is noteworthy that PW6 had duly testified earlier before his recall that a blood-stained cutlass was found near the scene of the murder. This fact was also testified to by PW3, Benjamin Okafor. Above all, the appellant in his confessional statement, Exh. A., confirmed that his accomplice, Tanko, inflicted the fatal wounds on the deceased with a matchet. All these show that the learned trial Judge could have reached his conclusions in the case even if those exhibits (C to G) were not tendered. Moreover, the tendering of these exhibits and the rules applicable thereto are matters which are purely technical in nature and therefore within the responsibility of counsel, who was present. In practice, even if the appellant was present, there was scarcely any part he could have played. As his counsel was present and neither objected nor even cross-examined on the exhibits when tendered and, above all, they were not relied upon for the judgment, one wonders what injustice their being tendered had occasioned to the appellant.
With respect, I believe the learned Senior Advocate for the appellant put the matter too highly when he called the error a mistrial and submitted that it vitiated the proceedings. In my opinion, a mistrial is a much more serious affair. It is a trial vitiated by some fundamental or serious error or which is procedurally inconclusive. Examples are when the jury cannot reach a verdict or when the trial has been rendered void through some defect in the proceedings. In Sunday Okoduwa & Ors. v. The State (1988) 2 N.W.L.R. (Pt. 76) 333, this Court found that a case in which defence counsel were so harassed and intimidated by the trial Judge that they could not be expected to stand their ground and do their best for their clients amounted to a mistrial. So also was a case in which the learned trial Judge cross-examined practically every witness called by the parties so extensively as to negate the principles of fair hearing in our adversary system: See Grace Akinfe v. The State (1988) 7 S.C.N.J. 226; (1988) 3 N.W.L.R. (Pt. 85) 729. So, a mistrial generally permeates the entire trial or a substantial part of it. A mistrial does not result from a single slip in the admission or rejection of evidence, unless, of course, by its very nature, it could be said to have run through the whole proceeding, or a substantial part of it. It often results in situations in which it can be said that in law there has been no trial at all: See Crane v. D.P.P. 15 Cr. App. R. 183; The State v. Lopez (1968) 1 All N.L.R. 356; R. v. Gee (1936) 25 Cr. App. R. 198, at p. 203. It is also sometimes applied to situations in which the trial has been so riddled with irregularities, often not amounting to nullity, that the whole trial can be aptly described as a sham. I believe that the complaint in this case can be more appropriately described and categorized as a wrongful reception of evidence. The principle applicable in such cases is settled. I should, as it were, run a blue pencil line across the piece of evidence which has been wrongly admitted and see whether, if the learned trial Judge had disregarded it, he could have reached the same conclusion. If I can positively say that he would have reached the same conclusion, then the wrongful admission of evidence is not one upon which an appeal should be allowed. See on this: Section 226(1) of the Evidence Act; see also R. v. Thomas (1958) 3 F.S.C. 8.
This is yet another particular illustration of the general principle emphasized in Okegbu v. The State 1979 11 S.C. 1, that a mere technical error by the lower court which has not embarrassed or prejudiced the appellant or caused a miscarriage of justice is not a ground for which an appeal should be allowed. So, much as I must condemn in strong terms the practice of the learned trial Judge receiving evidence in the absence of the appellant, who was charged with a very serious crime, I must reject this ground of appeal on the ground that it did not occasion a miscarriage of justice in that appellant's counsel was present and did not object; that that part of the proceeding was rather technical in nature and so a matter for counsel who was present to deal with; and that the evidence in question did not affect or influence the decision of the learned trial Judge.
For all I have said above, I believe the Court of Appeal was right in dismissing the appellant's appeal. I also dismiss the appeal as completely unmeritorious and affirm the sentence of death passed on the appellant.
Eso, J.S.C.:-I have had the privilege of a preview of the judgment which has just been delivered by my learned brother, Nnaemeka-Agu, J.S.C. I am in agreement with his reasoning and conclusion.
I abide by all the orders made by my brother, Nnaemeka-Agu, J.S.C.,
Kawu, J.S.C.:-I have had the advantage of reading, in draft, the lead judgment of my learned brother, Nnaemeka-Agu, J.S.C., which has just been delivered and I agree with it. I also agree that there is no substance in the appeal. I would dismiss the appeal, and hereby dismiss it.
Belgore, J.S.C.:-I read in advance the lead judgment of my learned brother, Nnaemeka-Agu, J.S.C., and I agree with his judgment and reason upon which he based it. I also dismiss this appeal.
Wali, J.S.C.:-I have the privilege of reading in draft a copy of the judgment of my learned brother, Nnaemeka-Agu, J.S.C. I agree with his reasoning and the conclusion that the appeal is without merit and must therefore fail. It is for these same reasons that I too hereby dismiss the appeal. The conviction and sentence imposed by the trial court and subsequently affirmed by the Court of Appeal are hereby confirmed.