Why NYSC member must die by hanging – SC

This appeal is against the judgment of the court of appeal, Calabar Division delivered on the 13th day of July, 2011, affirming the conviction and sentence of the trial court presided over by Hon. Justice Godwin J. Abraham of Uyo High Court who sentenced the appellant herein to death, for the offence of armed robbery.The […]

This appeal is against the judgment of the court of appeal, Calabar Division delivered on the 13th day of July, 2011, affirming the conviction and sentence of the trial court presided over by Hon. Justice Godwin J. Abraham of Uyo High Court who sentenced the appellant herein to death, for the offence of armed robbery.
The appellant’s appeal to the court of appeal was not successful hence he has now further appealed to this court.
On the part of the respondent the following four issues are submitted for determination:
1. Whether or not the lower court failed in its legal duty to consider and resolve all the Issues placed before it particularly issues no. 3 and 4 in the appellant’s brief of argument.
2. If issue no. 1 is answered in the negative, whether or not the lower court breached the constitutional right of the appellant to fair hearing.
Whether or not the decision of the lower court upholding the conviction and sentence of the appellant was perverse and 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 and thereby rightly upheld the conviction of the appellant.
Before I go into the consideration of the issues raised in the briefs of the respective parties, it is necessary to set out the f acts of the case, as can be gleaned from the records of appeal and particularly the prosecution witnesses.
The appellant was a member of the National Youth Service Scheme posted to Comprehensive Secondary
School, Ukpom 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. The charge against him was that on the 31st November, 2004 one Dr. Clement Adolf Bassey (who Iater testified in this case as Pw1) travelled with one Pius Akpan (who later testifies as Pw2) from Uyo to Ukpom Ita. At Edet Ukpom market, pw1 who was driving his official car, a Peugeot 504 saloon Car Bestline 2000 series, turned into the premises of Edet Community bank. It was at this point a Mercedes Benz car with three occupants, which had apparently been trailing him, overtook his car. Two of the three occupants in the Mercedes Benz car alighted and fired their automatic rifles sporadically and ordered Pw1 and Pw2 out of their car. The attackers robbed them of the Peugeot car, valued N2,000,000, driving licence, 3 cheque books, 2 GSM handsets valued N75,000 and numerous official documents, properties of Pw1.
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 Technology, Enugu (IMTE).
Pw2 and Pw2 reported the matter to the police at Ukpan Uwana and made statements to the pol ice; and after thorough investigations; the appellant was arrested and subsequently arraigned before the trial court. 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 and called two witnesses, and tendered 4 exhibits.
The learned counsel for both the appellant and the respondent addressed the trial court. Godwin Abraham (J) in a considered judgment convicted and sentenced the appellant to death by hanging. He concluded at page 86 of the record appeal thus: “I believe from the evidence adduced that the accused person was one of those that robbed pw1 and pw2 on 30/11/2004 as stated in counts one and two of the charge I believe that in the process of the robbery the accused person’s wallet containing among other items his identity card fell from his pocket. I have found that Pw1 and Pw2 effectively identified the accused person as one of the robbers.”
Affirming the appellant’s conviction and sentence Court of Appeal, concluded as follows: “It is to be made clear that the trial court rightly convicted the appellant having regard to his identification by pw1 and pw2 as one of the robbers who robbed them on 30th November, 2004 and whose identity as such was proved beyond reasonable doubt at the trial court.”
As I have said, it is from the judgment of the court below that the appellant has now further appealed to this court. It is cIear therefore that this appeal is against the concurrent finding made on the facts placed before the two courts.
It is to be noted however, that the parties each formulated three issues for determination. The second issue canvassed in the alternative to the first issue by the respondent’s that the trial court denied him constitutional right to fair hearing. I do not see the need for this stance, because all said and done, the appellant’s complaint is all about not having been fairly heard and grave injustice done to him.
Now to the consideration of the arguments canvassed on the issues raised in the appeal. The first and second issues can be conveniently taken together. It poses the question whether or not the lower court failed in its legal duty to consider and resolve all the issues before it particularly issues No.3 and 4 in the appellant’s brief of argument.
It is rather a friable argument or merely frivolous for the appellant to contend the appellate court, Appeal in considering an appeal before it has no discretion to either adopt the issues formulated for determination by the parties or alternatively formulate such issue(s) it believes would adequately determine the grievance in the appeal.
 Recently, what this court said in Agbareh V. Mimra (2008) 2 NWLR (pt .1071) 378 at 410, further emphasis the triteness of the law on this trig-point. It was held thus:
“Finally an appellate court can, prefer an issue or issues formulated by any of the parties and can itself and on its own, formulate an issue or issues which in its considered view, is / are germane to and is or are pertinent in the determination of the matter in controversy”.  
What else is apt in the circumstance for the appellate court to do if it cannot be given the discretion of mandate to adopt, modify or even formulate an issue or issues, which in its view would adequately and fairly resolve the complaints in an appeal. See also NATIONAL ASSEMBLY v. C. C.L. Co. LTD. (2008) 5 NWLR (pt .1081) 519 at 536.
In the instant case, the Respondent In the court below also as the Respondent in its brief of argument contained formulated two issues for determination of the appeal in the following terms:
1.    Whether the trial court was right in holding that there were no contradictions in the testimonies of the prosecution witnesses in respect of the identity of the Appellant as one of the robbers who robed PW1 and PW2 on November, 2004 and thereby rightly convicted the Appellant as charged.
2.    Whether the trial considered all the defences put forward by the Appellant and thereby rightly convicted him as charged.
It is clear that the lower court in the exercise of its discretion adopted the issues formulated by the Respondent in determining the appeal. This can be seen at page 24 of the Record of Appeal where the Court stated as follows:
“The vital evidence in respect of issue No.1 as formulated by the respondent is that Pw1 and Pw2 properly identified the appellant as one of the robbers who attack them at gun point on 30th November, 2004.”
In spite of the foregoing the court below while considering the Respondent’s issue No.2 also went ahead to consider the defences put up by the appellant in his issues 3, 4 and 5 which he complains that they weren’t considered.
In the circumstance, I cannot fathom out what the appellant could possibly mean when he complained that all the issues placed before the lower court, particularly issues No.3 and 4 in the appellant’s brief of argument were not considered.
Having resolved and answered issue No.2 in the negative, it has become clear that the lower court did not deny the appellant his constitutional right to be fairly heard.
The third issue under consideration is the appellant’ s complaint against the founding of the lower court that there were no material contradictions in the prosecutor’ s case and thereby rightly upheld the conviction of the appellant.

To be continued