CHUNGWOM KIM V. THE STATE

• Pages: 581-605

CHUNGWOM KIM V. THE STATE

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581

CHUNGWOM KIM V. THE STATE

CHUNGWOM KIM



APPELLANT

V.

10 THE STATE



RESPONDENT.

APPEAL No. Sc.5/1991.

SUPREME COURT OF NIGERIA:

KAWU



J.S.C.

NNAEMEKA-AGU, J.S.C.

AKPATA,



J.S.C.

OMO,



J.S.C.

KUTIGI,



J.S.C.

10th

April, 1992.

Appeals- Trial Courts drawing wrong inferences from facts and evidence - Role of appellate

25



Court in Civil and Criminal appeals - Brief writing - Issues for determination - How

formulated - Arguing and deciding appeals on issues for determination and not grounds

of appeal - Propriety of

Constitutional Law- Human rights - Purport of - Fair hearing - Purport and meaning of

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Courts- Administration of justice - Role of a judge thereof

Criminal Law and Procedure- Culpable homicide punishable with death - Conviction and

sentence therefor - Defences of self - Defence and provocation - When sustainable -

When not sustainable - Defences of an accused - Scope of - Necessity to consider -

Extrajudicial statements of an accused person which are inconsistent with his evidence

on oath - How treated - Recording of the Extrajudicial statements of an accusedperson

by the police - Formal requirements of - Applicable rules - Whether complied with.

Evidence- Confessional statements of an accused person in conflict with his oral testimony

in court - How treated - The cases of R. V Itule (infra) and Asanya v. State (infra)

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discussed and explained - Confessional statements - Conviction solely thereon even if

retracted at the trial propriety of - Weight attached thereto.

Judgments- A trial judge using the words "murdered" "a saddist" "premeditated killing"

and "vendetta" in a culpable homicide judgment before considering the defences of an

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accused person - Propriety ,of - Court coming to a decision in a criminal case without

considering the defence(s) of an accused person - Effect of - Whether it occasions

miscarriage of justice - S.26(1) Supreme Court Act, 1960 applied - Position in Civil

appeals distinguished - Whether every slip or error in the judgments of lower courts

would lead to reversal on appeal.

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ISSUES

1.

What is fair hearing and what is the effect of its breach on a trial?

2.

When may a legal practitioner he said to have discharged his professional

services to his client in a criminal trial?

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20

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582

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NIGERIAN SUPREME COURT CASES

[1992] 1 N.S.C.C.

3.

Whether conviction can be based solely on confessional statements even if

retracted at the trial.

4.

When may a trial court be said to have evenly maintained the required balance

between the prosecution and the defence in a criminal trial?

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FACTS:

The appellant was charged with an offence of homicide punishable with death

under section 221 of the Penal Code in a Jos High Court. He pleaded not guilty to

the charge. The prosecution called six witnesses and the appellant testified on his

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own behalf but called no witness. There was no eye witness to the incident which

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led to the death of the deceased. The prosecution relied heavily on three confes-

sional statements made by the appellant to the police before the trial began and

which were tendered as Exhibits A (in Hausa) and Al (English translation), B (in



Hausa) and B1 (English translation) and C (in Hausa) and Cl (English translation).

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The oral testimony of the appellant contradicted his confessional statements to the

police.

At the conclusion of evidence and submission of counsel, the learned trial judge

(Emefo

J.) found the appellant guilty as charged and sentenced him to death.

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Dissatisfied with the judgment the appellant appealed to the Court of Appeal. The

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appeal was unanimously dismissed.

Upon a further appeal to the Supreme Court the appellant contended

inter alia,

that the confessional statements were wrongly admitted in evidence; conviction

cannot be based solely on the confessional statements without oral evidence, lack

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of fair hearing on the ground that the legal representation afforded the appellant

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was nominal and error in law on the ground of failure of the trial court to consider

the defences of provocation and self-defence put up by the appellant.

HELD:

1.

Fair hearing compendiates not only compliance with the two rules of natural

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justice -

audi alteram partem

and

nemo judex in causa sua.

It entails complying

with all the provisions of section 33 of the 1979 constitution of Nigeria. It also

entails doing, during the course of the trial, all things which will make an

impartial observer leaving the courtroom to believe that the trial has been

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balanced and fair to both sides to the trial. Once it is duly established that the

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right to fair hearing has been breached in a judicial proceeding. it vitiates the

proceeding.

In the instant case a case of breach of the rules of fair hearing has not been

made out. (See

p.588, lines 37 - 39 & 43 - 48).

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2.

There is a rebuttable presumption that a duly qualified legal practitioner

rendered his professional services properly and efficiently to his client. In court

he decides which of the witnesses he may cross-examine and when it is

discreet not to put even a single question. One can hold that against hirn,

when in a clear case every reasonable counsel ought to have cross-examined 45

the witness on some material points.

In the instant case, looking at the whole case and the manner in which the

learned counsel for the accused conducted it, it cannot be said that counsel

The fact that his present counsel is of the opinion that he himself would have

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performed below standard or that his conduct resulted in an unfair hearing.

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done otherwise is quite an irrelevant consideration in such matter. The test is

objective. (See

p.591, lines 13 - 24).