Corrupt Practices

The amended 5 count charge read as follows:-
COUNT ONE
That you Shugaba Umar Gana (m) being a public officer on or about the 16th February, 2005 at Monguno in Borno State did use your office as Chairman Monguno Local Government Council to confer corrupt advantage upon yourself by withdrawing from the Local Government Account vide voucher No. 32 dated 16/2/2005 the sum of 1,500,000.00 (One Million, Five Hundred Thousand Naira) under the pretext of paying same to the Borno State Board of Internal Revenue as Withholding Tax (WHT) which money you neither paid nor returned to the Local Government coffers and you thereby committed an offence contrary to and punishable under Section 19 of the Corrupt Practices and Other Related Offences Act, 2000.
COUNT TWO
That you Shugaba Umar Gana (m) and Alkali Imam (m) being public officers on or about the 16th February, 2005 at Maiduguri in Borno State did engage in criminal conspiracy to use your office to confer corrupt advantage upon Shugaba Umar Gana by agreeing to issue with a receipt the sum of 1,500,000.00 (One Million, Five Hundred Thousand Naira) payable by the Monguno Local Government Council Borno State to the Borno State Board of Internal Revenue as Withholding Tax (WHT) which money you neither paid to the said Board of Internal Revenue nor returned to the coffers of the Local Government Council and you thereby committed an offence contrary to Section 26(1)(c) and punishable under Section 19 of Corrupt Practices and other Related Offences Act, 2000.
COUNT THREE
That you Alkali Imam (m) on 16th February, 2005 being a public officer charged with custody of receipts at Borno State Board of Internal Revenue did knowingly furnish a statement, by issuing to Shugaba Umar Gana (m) a receipt No. BO 537977 dated 16th February, 2005 for the sum of 1,500, 000.00 (One Million, Five Hundred Thousand Naira) only as receipt for the payment of Withholding Tax (WHT) to Borno State Board of Internal Revenue by the Chairman Monguno Local Government when no such payment was made and you thereby committed an offence contrary and punishable under Section 16 of the Corrupt Practices and Other Related Offence Act, 2000.
COUNT FOUR
That you Shugaba Umar Gana (m) being a public officer to wit: the Chairman Monguno Local Government Council of Borno State on 16th February, 2005 at Monguno, being a public officer charged with the management of funds for running of Monguno Local Government Council of Borno State, knowingly furnished return by retiring with a receipt No. Bo 557977 dated 16th February, 2005 for the sum of 1,500,000.00 (One Million, Five Hundred Thousand Naira) the sum purportedly paid as withholding Tax (WHT) to Borno State Director Board of Internal Revenue when no such payment was made and you thereby committed an offence contrary to and punishable under Section 16 of the Corrupt Practices and Other Related offences Act, 2000.
COUNT FIVE
That you Alkali Imam (m) on 16th February, 2005 being a public officer at Maiduguri in Borno State in furtherance of the commission of the offence to confer corrupt advantage upon Shugaba Umar Gana issued a receipt no. 537977 dated 16th February 2005 for the sum of 1,500,000.00 (One Million, Five Hundred Thousand Naira) the sum purportedly paid as withholding Tax (WHT) to Borno State Board of Internal Revenue by the Chairman Monguno Local Government Council when no such payment was made and you thereby committed an offence contrary to Section 26(1)(b) and punishable under Section 19 of the Corrupt Practices and Other Related Offences Act, 2000.
In order to prove the charge the prosecution called six witnesses who testified and tendered several exhibits. The 1st accused testified as DW1 but called no other witness while the 2nd accused testified as DW2 and called one witness who testified as DW3.
Learned counsel appearing for the parties addressed the Court. In a reserved judgment delivered

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on 29 September, 2009, the learned trial Judge found the two accused persons guilty and convicted the 1st accused on counts 1, 2 and 4 while the 2nd accused was convicted on counts 2, 3, 4 and 5. The 1st convict was sentenced to 5 years each on counts 1 and 2 and 7 years on count 4 while the 2nd convict got 5 years on count 2 and 7 years each on counts 3 and 4. The sentences imposed on the convicts were to run concurrently.
The 1st convict was aggrieved by the conviction and appealed against it to the Court of Appeal in Jos. The appeal was dismissed on 17 December, 2012; hence the further appeal to this Court. The Notice of Appeal dated 10 January, 2013 contained five grounds of appeal from which Yusuf Ali SAN distilled three issues for determination after abandoning grounds 1 and 2 of the Notice of Appeal. The issues he distilled are:-
1. Whether the Court below was right in misconceiving and misplacing the real issues in this matter and in shifting the onus of proof on the appellant, contrary to the position of the law.
2. Whether the Court below was not wrong in agreeing with the trial Court that there was compelling, cogent and positive circumstantial evidence which irresistibly pointed to the guilt of the appellant.
3. Whether the Court below was right in relying on the contradictory and inconsistent findings it made to affirm the conviction of the appellant, moreover, when the prosecution did not prove its case beyond reasonable doubt as enjoined by law.
The respondent’s brief was settled by Paul Ahmed Bassi, Chief Legal Officer, Independent Corrupt Practices Commission (ICPC) and he raised two issues for determination namely:-
1. Whether or not the lower Court wrongly shifted the burden of proof to the appellant (gleaned from ground 3)
2. Whether or not the prosecution proved its case against the appellant beyond reasonable doubt (gleaned from grounds 4 and 5 of the Notice of Appeal).
The main issue in this appeal is whether the prosecution proved its case against the appellant beyond reasonable doubt. In the first count the appellant is alleged to have used his office as Chairman of Monguno Local Government Council to confer corrupt advantage upon himself by withdrawing 1,500,000.00 (One Million, five Hundred Thousand Naira from the account of the Monguno Local Government Council under the pretext of paying the money to the Borno State Board of Internal Revenue as withholding Tax but did not pay the money neither did he return it to the Local Government coffers and he thereby committed an offence contrary to Section 19 of the Corrupt Practices and Other Related Offences Act, 2000 while the second count alleged that he conspired with Alkali Imam to confer corrupt advantage on himself by agreeing to issue a receipt for the sum of 1,500,000.00 payable by the Monguno Local Government Council Borno State to the Borno State Board of Internal Revenue as Withholding Tax which was not paid to the said Board nor returned to the coffers of the Local Government.
Learned Senior counsel for the appellant argued that there is nowhere in the three count charge where it was alleged that the appellant collected the same sum of 1,500,000.00 or any other sum from the 2nd accused which money he paid back at the premises of Zenith Bank Plc on the 28th day of April, 2006 and there is nowhere it was alleged by the prosecution that the sum of 1,500,000.00 paid by the Appellant to the 2nd accused was the same money the appellant collected from him the same day and paid to him at the premises of Zenith Bank Plc. He said that none of the six witnesses testified against the appellant to the effect that the appellant collected the sum of 1,500,000.00 from the 2nd accused which he later paid back at the premises of the said Bank. It is learned counsel’s contention that the defence put forward by the appellant was that he directed the secretary and the treasurer of the Local Government to pay the said sum of 1,500,000.00 to the Board, but they could not effect the payment as he instructed because the members of the Board had left the Local Government. The treasurer carried the money to Maiduguri and handed it over to the appellant. The appellant then contacted the 2nd accused to know his whereabouts. Upon discovering that the 2nd accused was in the office, the appellant went and met him and it was there he paid the money to the 2nd accused who then issued Exhibit SU3 to him after collecting the money on behalf of the Board. Learned counsel then submitted that to establish his defence, all that the appellant needed was to identify Exhibit SU3 and elicit evidence from those who were there in the office when the money was paid to the 2nd accused and the evidence of DW2 and DW3 was relevant for this purpose. He said the appellant was consistent throughout that the money he collected on loan was totally different from the one he paid to the 2nd accused as withholding tax and that it was this same money he paid to the 2nd accused person at the premises of Zenith Bank Plc. Since the evidence was not contradicted learned counsel argued, the Justices of the Court of Appeal fell

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into error to place the burden of proof on the appellant.
Learned counsel then went on to submit that the evidence of the 2nd accused in open Court cannot be used against the appellant and the Court owes a duty to treat the case and the defences of each of the accused persons separately and the Court cannot use the evidence of the 2nd accused person for the purpose of destroying the case of the appellant and what the lower Court did was to place the burden of proving his innocence on the appellant. He went on to argue that even though this Court is loathe to interfere with concurrent findings of the trial Court and the Court below, where such concurrent findings are perverse or amount to a misstatement of the relevant law and rules, or the trial Court did not take good advantage of its having seen and heard the witnesses or the Court placed no value on relevant facts and law or vice-versa, this Court will duly interfere.
Learned counsel for the respondent contended that what the prosecution set out to establish before the trial Court was that the sum of 1.5m was not paid into the accounts of the Borno State Board of Internal Revenue. The prosecution also established that Exhibit SU3 was a false document as no payment was made as at the date it was issued and the issuance of Exhibit SU3 was designed to cover up the failure of the appellant to pay the sum of 1.5m due to the Borno State Board of Internal Revenue despite collecting same from the coffers of the Monguno Local Government Area thereby conferring corrupt advantage upon the appellant.
Learned counsel agreed with the submission of appellants counsel that the burden of proof of the alleged offences against an accused person rests squarely with the prosecution and this burden never shifts. There is no duty placed on an accused to prove his innocence under any circumstance see: Adeyemi v. State (2012) ALL FWLR (PT. 606) 492 per Bage JCA (as he then was) at 505. He said that what the prosecution needed to do (which it did) was to establish the ingredients of the offence alleged against the appellant. It is only when the trial Court had considered and found that the prosecution had proved the offences charged through cogent and credible evidence beyond reasonable doubt or at least prima facie that the burden will shift unto the appellant as an accused person to prove the existence of reasonable doubt as provided in Section 135(5) Evidence Act 2011. There can therefore, be no duty or burden on an accused person to prove the existence of any reasonable doubt when the prosecution had not proved the offence beyond reasonable doubt.
I agree with the submission made by learned counsel for the respondent that the two lower Courts never imposed a duty on the appellant to prove his innocence but rather the appellant on his own election chose to put forward a defence of a positive nature. The question to ask is:-
Did the prosecution establish the ingredients of the offence alleged against the appellant?
According to PW1, when the EFCC forwarded the petition written by Monguno Youth Consultative Forum accusing the appellant of misappropriating N300m, his team was assigned to investigate the allegation. In the course of the investigation they discovered a payment voucher of 1.5m which was raised in favour of the Director of the Borno State Board of Internal Revenue. The voucher was retrieved and a further investigation revealed that the receipt on which the 1st accused (appellant) retired the amount from the Board of Internal Revenue and payment voucher raised in favour of the Director of the Board were bearing the same date and this made his team of investigators to become suspicious.
They found that the money amounting to 1.5m was paid to the chairman and it represented 5% withholding tax. The voucher is Exhibit SU2 while the receipt of payment is Exhibit SU3. Since the receipt and payment voucher bore the same date, the team wrote a letter to the Chairman, Board of Internal Revenue to verify the receipt. It was then discovered that the duplicate copy of the original receipt was not bearing the name of Monguno Local Government, but rather Leventis
Motors and the amount which was allegedly paid was 125.00. Sequel to that finding the Board wrote to the 2nd accused to refund the sum of 1.5m. The investigation that was further carried out showed that the amount was paid into the account of the Board of Internal Revenue by the 1st accused in April, 2006. The 1st accused had procured the receipt from the 2nd accused. The duplicate receipt is Exhibit SU4. The team wrote again to the Chairman of the Board of Internal Revenue pointing out that the original receipt and the duplicate (Exhibits SU3 and SU4) are bearing different names of payee. The 2nd accused was then invited to the ICPC office in Abuja where he made his statement which was tendered in evidence as Exhibit su5.

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In the oral evidence he gave in Court as DW2, the 2nd accused said:-
Wakil Haruna who testified as PW5 stated that on 16/2/2005 he was in the office when the 2nd accused who was his superior officer went to him and asked him to give him one booklet of receipts for collection and explained to him that he had one collection from Monguno and he wanted the receipt. He gave the booklet to 2nd accused who later returned the booklet with one sheet of the receipt missing. He (PW5) asked him about the missing receipt and he said he would explain later but he didn’t. A month later he asked him again about the missing receipt and it was then the 2nd accused told him to write anything on the duplicate and he wrote 125.00 in favour of Leventis Motors. He identified Exhibit SU4 which is the duplicate copy of Exhibit SU3. When the management discovered that the original receipt was missing, he was queried. After he replied to the query it was then the original receipt re-surfaced and through the number on it, he realised it was the original receipt of the duplicate which was missing and it carried 1.5 million Naira.
PW3 and PW4 were the cashier and treasurer respectively of Monguno Local Government Council at the time the appellant was Chairman of the Local Government. In his evidence PW4 stated that on 16/2/2005 he received instructions from the Chairman and Secretary of Monguno Local Government to withdraw the sum of 1.5 million to be paid to the Board of Internal Revenue as withholding tax. PW3 on the instructions of PW4 withdrew the amount from Union Bank Baga and gave it to the treasurer who in turn handed over the money to the Appellant. After collecting the money the appellant then purportedly paid same to the Board of Internal Revenue and was issued with Exhibit SU 3. The voucher for the money was Exhibit SU2 which PW4 retired after he had collected Exhibit SU3 from the appellant.
PW2, Yunus Baba Maiwuye was the Branch Manager of Zenith Bank Plc, Maiduguri when a deposit of 1.5 million Naira was made on 28/4/2006 in favour of Borno State Board of Internal Revenue as withholding tax. The deposit slip of the amount carrying the name of the appellant as the depositor was admitted as Exhibit SU7.
The appellant made an extra-judicial statement in which he explained that voucher No. 32 dated 16/2/2005 with the amount of 1.5 million payable was withdrawn by the cashier and given to him which he paid to the said Board of Internal Revenue thereby reducing the debt the Local Government was owing to N400,000.00 withholding tax since the total debt was 1.9 million.
In his oral evidence in Court he confirmed paying the 1.5 million to the 2nd accused who issued him with Exhibit SU3 which he took to the Treasurer. He said that at the time the 2nd accused gave him Exhibit SU3, he had no reason to suspect him. He said he did not discuss with the 2nd accused not to pay the money into the coffers of the State Government and he had no reason to believe that the money was not paid into the coffers of the Local Government. He did not know that the receipt given to him was not genuine. He denied paying any money into Zenith Bank in respect of this case and the writing in Exhibit SU7 was not his handwriting.
On being cross-examined, the appellant said he made the payment to him (2nd accused) in the office of the Board of Internal Revenue. He went further to say:-
“I borrowed it to transport my stakeholder from Monguno to Maiduguri. I did not pay the money to him to pay to Zenith Bank i.e. the money borrowed the sum of 1.5 million Naira when the ICPC came upon me. The treasurer, the secretary and myself we were there at the Zenith when our gratuity was being paid. When I collected the money I phone the Treasurer and I gave him the sum of One million and N50,000 in the presence of the cashier i.e the money borrowed. The money I paid to him is not the some money and is not the same denomination. The 2nd accused was invited by the ICPC. He asked me to give him the money he lent to me. I told him I will pay him the money”.
The explanation given by the appellant is incoherent.
From the evidence given by the prosecution and the defence, it is clear that the 1,500,000.00 withholding tax for which PW3 and PW4 raised payment voucher of 16/2/2005 tendered as Exhibit SU2 and withdrew the money which they handed over to the appellant was not paid to the Board of Internal Revenue immediately as claimed by the appellant. Despite the non remittance the 2nd accused still went ahead to issue Exhibit SU3 on the same 11/2/2005 to the appellant. It was not until 28/4/2006 that the said 1,500,000.00 was lodged into the account of the Board of Internal Revenue with Zenith Bank Plc as reflected in Exhibits SU6 and SU7. This followed on the sustained pressure mounted by the ICPC on the Chairman, Board of Internal Revenue, Borno State in its letter of 7 April, 2005 (admitted in evidence as Exhibit SU12) and the latters letter to the 2nd accused of 21st April, 2006 (admitted as Exhibit SU13).

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Exhibit SU12 reads:
INDEPENDENT CORRUPT PRACTICES AND OTHER RELATED OFFENCES COMMISION
Plot 802, Zone A 9,
Constitution Avenue
Central Area
Abuja – Nigeria
Our Ref: ICPC/INV/GBP/DC/470 7th April,2006
The Chairman
Board of Internal Revenue
Borno State
Maiduguri.
INVESTIGATION ACTIVITIES
INVITATION FOR INTERVIEW AND REQUEST FOR DOCUMENTS
The Commission is investigating a case of violation of the Corrupt Practices and Other Related Offences Act 2000 against some public officers of Monguno Local Government Area of Borno State.
2. Pursuant to Section 28 of the Act, 2000, you are requested to inform and release Mr. Alkali Imam to appear before the undersigned on Wednesday 19th April, 2006 at 10.00 hours with the duplicate copy of the receipt No. BO537977 dated 16/2/2005 of 1,500,000.00 collected from Monguno Local Government as part payment of 5% WHT (copy attached) should be brought for inspection and scrutiny.
I will appreciate a quick consideration and response to this request.
Accept the assurances of the Chairman’s highest regards please.
Signed:
DCP Hashimu S. A.
HOD (Investigation)
For: Hon Chairman
ICPC, Abuja
On receipt of exhibit SU12, the Chairman Board of Internal Revenue wrote Exhibit SU13 to Alkali Imam, 2nd accused on 21st April, 2006 and it reads:-
RE: No: BIR/CON/432/41 “21st April, 2006
Alkali Imam
Chief Accountant
Ministry of Commence & Industry
Musa Usman Secretariat
Maiduguri, Bornu State.
Investigation on 5% Withholding Tax Amounting to the tune of 1,500,000.00 Collected from Monguno Local Government Council
Sequel to a letter emanating from ICPC Abuja with Ref: No. ICPC/INV/GBP/DC/470 dated 7th April, 2006, on the above subject matter, which prompted Management to screen available records on remittance of withholding tax and it was discovered that the above quoted amount on receipt No. 537977 of 16th February, 2005 had never been credited into government account.
2. Furthermore it is a fact that the duplicate copy of the same receipt No. 537977 was issued out with the amount of 125 on 14th April, 2007 to Leventis Motors. Unfortunately however neither of the two amounts quoted in the same receipts was reflected in the remittance list.
Consequent upon this obvious anomaly, I am directed to inform you that Management in its meeting held on 18th April, 2006 resolved that you should refund the sum of 1,500,000.00 within one week upon your receipt of this letter unfailingly.
Any failure on your part to comply will compel management to report you to appropriate quarters to enforce compliance accordingly
Signed:
A. Abubakar
DA
For: Chairman/ Chief Executive
Board of Int. Revenue
ACKNOWLEDGEMENT
I, Alkali Imam hereby acknowledge receipt of this letter today 20th April, 2006

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Signed:
ALKALI IMAM KOLO
CHIEF ACCT.
When the 2nd accused appeared before the ICPC, he wrote a statement which was admitted in evidence as Exhibit SU5. In the said statement he said he issued the receipt to the Chairman of Monguno Local Government based on trust believing that he would pay the money within one to two months but unfortunately he did not. It was not until he (appellant) was invited by the ICPC over the money that he took it to him and he paid it into the account of the Board of Internal Revenue on 28 April, 2006.
Despite the fact that the 2nd accused implicated the appellant in the non-remittance of the 1.5 million withholding tax which he collected from PW3 and PW4, the appellant did not cross-examine the 2nd accused on his assertion that it was paid on 28 April, 2006 and not on 16 February, 2005 when Exhibit SU3 was issued to him. Generally when a person produces a receipt it is evidence of payment see: Etajata v. Ologbo (2007) 16 NWLR (Pt. 1061) 554.
It is however settled law that where evidence is given by a party and is not contradicted by the other party who has the opportunity to do so, and such evidence proffered is not inherently incredible and does not offend any rational conclusion or state of physical things the Court should accord credibility to such evidence. See: Okoebor V. Police Council (2003) 12 NWLR (pt. 834) 444: Omoregbe v. Lawani (1980) 3 – 4 SC 108 at 117 and Mainagge v. Gwamma (2004) 7 SC (pt. 11) 76 at 92.
The presumption as to the regularity of any official act i.e. the issuance of Exhibit SU3 by the 2nd accused to the appellant as evidence that he remitted the 1,500,000.00 withholding tax to the Board of Internal Revenue of Borno State is therefore rebuttable as Section 128(1) of the Evidence Act 2011 (as amended) provides the general exception of exclusion of oral evidence by documentary evidence on grounds of fraud. The section states:-
“128(1) When a judgment of a Court or any other judicial or official proceeding, contract or any grant or other disposition of property has been reduced to the form of a document or series of documents, no evidence may be given of such judgment or proceeding or of the terms of such contract, grant or disposition of property except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under this Act; nor may the contents of any such document be contradicted, altered, added to or varied by oral evidence.
Provided that any of the following matters may be proved-
(a) fraud, intimidation, illegality, wont of the execution, the fact that it is wrongly dated, existence or want or failure, of consideration, mistake in fact or law; want of capacity in any contracting party, or the capacity in which a contracting party acted when it is not inconsistent with the terms of the contract, or any other matter which if proved would produce any effect upon the validity of any document, or of any part of it, or which would entitle any person to any judgment, decree, or order relating to it.”
When PW1 testified, he tendered several Exhibits including Exhibit SU5 where the 2nd accused explained how he issued Exhibit SU3 to the appellant before the 1.5 million withholding tax was remitted trusting that the money would be remitted within one or two months but this did not happen until after one year when the bubble had burst.
The learned trial Judge having analysed the evidence regarding the issuance of Exhibit SU3 and whether the 1.5 million was remitted at the time Exhibit SU3 was issued said at pages 126-127 of the records:-
“When Exhibits SU3 and SU4 are compared, they both bear the same serial number B0.537977. SU3 was issued on 16/2/2005 whereas SU4 was issued on 6/6/2005, the dates and the amount on the two receipts are different. I however believe that Exhibit SU4 is duplicate of Exhibit SU3 not only by the statement of PW5 but even the serial numbers on the two exhibits. This creates doubts in the mind of the Court as to whether the sum of 1,500,000.00 was paid on 16/2/2005 or not. Exhibits SU6 and SU7 stated that the said amount was paid on 28/4/2006 into the account of the Board at Zenith Bank and this was confirmed by PW2. The 1st accused denied making the said payment in his statement before the Court… He maintained that he made the payment on 16/2/2005 and was issued Exhibit SU3. The money was paid in cash. He admitted under cross-examination that he borrowed money from the 2nd accused on the date he made the payment

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to the Board. That the money borrowed was 1,050,000.00 and that it was not the same money meant for withholding tax. This money was paid in the presence of the Treasurer and Cashier because the 2nd accused had been asking him to pay the money he lent him. The said sum has no connection with holding tax.
Neither the Cashier nor the Treasurer told the Court in their evidence the Chairman borrowed money from 2nd accused and that same was brought to him on 28/4/2006. 2nd accused in his evidence admitted that Exhibit SU4 is duplicate of Exhibit SU3 and the signature on same is his. This corroborates with his confessional statement in exhibit SU5 that he gave the receipt to the 1st accused purely on trust that he would pay the money as promised. It means he only issued receipt not backed with money.
This amount was not paid until when he was invited by the ICPC that he had to ask the 1st accused for same.”
He went on to conclude at pages 128 – 130 thus:-
“In view of the foregoing, I hold that the sum of 1,500.000.00 was not paid by Chairman of the Monguno Local Government Council to the Board of Internal Revenue on 16/2/2005. Since the sum involved was not paid on 16/2/2005, it is evident that this was the money the 2nd accused lent to the 1st accused. See Exhibit SU13 a letter from the Chairman of the Board of Internal Revenue to the 2nd accused to the effect that the amount quoted on receipt No. 537977 dated 16/2/2005 was never credited into Government Account. The 2nd accused was asked to refund the said sum. Exhibit SU3 was written on 21st April, 2006 as a result of Exhibit SU12 which emanated from the ICPC office doted 7/4/2006. 1st accused in Exhibit SU11 stated that he paid the 1st accused (sic 2nd accused) the sum of 1,050,000.00 at the Zenith Bank in the presence of the Local Government Treasurer and Cashier of the Local government. lf there is any iota of truth in this statement, he ought to have called the Treasurer or Cashier to give evidence to that effect, this he did not do because their evidence would not be favourable to him.
The lower Court held that there was no contradiction in the findings of the learned trial Judge that while Exhibit SU3 was issued by a competent officer of the Borno State Board of Internal Revenue i.e. the Chief Inspector of taxes (2nd accused) the same Exhibit SU3 was not genuine evidence of the payment of the sum of 1,500,000.00 to the said Board.
This finding cannot be faulted because of the evidence of PW5 and the admission by the 2nd accused that Exhibit SU3 was not backed up by the payment of 1,500,000.00 into the account of the Borno State Board of Internal Revenue at the time he issued the said Exhibit SU3 to the appellant.
Have the elements of the offences charged against the appellant been proved? The 1st count is that the appellant used his office as Chairman, Monguno Local Government Council to confer corrupt advantage upon himself by withdrawing from the Local Government account through voucher No. 32 dated 16/2/2005 the sum of 1,500,000.00 under the pretext of paying same to the Borno State Board of Internal Revenue as withholding tax which money was neither paid nor returned to the Local Government coffers and thereby committed an offence which is contrary to and punishable under Section 19 of the Corrupt Practices and other Related Offences Act, 2010.
Section 19 of the Corrupt Practices and other Related Offences Act stipulates:-
“19. Any person, being an officer charged with the receipt, custody, use or management of any part of the public revenue or property, knowingly furnishes any false statement or return in respect of any money or property received by him or entrusted to his care, or of any balance of money or property in his possession or under his control, is guilty of an offence, and on conviction be liable to seven (7) years imprisonment.
As Chairman of Monguno Local Government the appellant was charged with the management of the revenue of the Local Government. In his evidence, the appellant admitted that as Chairman of Monguno Local Government he is the Chief Executive and in that capacity gives directives for all payments in the Local Government even though the Treasurer is the actual person that pays out the money. He was therefore the custodian of all revenues accruing to the Local Government including its management. When the 2nd accused issued Exhibit SU3 to him he was fully aware that the 1,500,000.00 withholding tax had not been remitted to the Board of Internal Revenue but converted it to his own use. Instead of preparing a cheque to accompany the payment voucher raised in favour of the Director Board of Internal Revenue, PW3 and pW4 withdrew the cash and handed same over to the appellant. The money was therefore entrusted to his care which he failed to remit to the Board of Internal Revenue. The prosecution therefore proved the elements of the offence under Section 19 of the Corrupt Practices and Other Related Offences Act, 2000 despite the fact that the money was later paid into the account of the Board of Internal Revenue with Zenith Bank.

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The learned trial Judge reasoned in his judgment that since the money was not paid to the Board on 16/2/2005, it is evident that this was the money the 2nd accused lent to the appellant since the amount quoted on receipt No. 537977 dated 16/2/2005 was never credited into the account of the Board of Internal Revenue nor returned to the Treasurer of Monguno Local Government to enable the Cashier to retire same; rather the appellant in furtherance of the deception gave Exhibit SU3 to the Treasurer of the Local Government.
The conspiracy between the appellant and the 2nd accused is evident in the issuance of Exhibit SU3 when he knew that the 1,500.000.00 was not paid into the account of the Board. By lending the cash to the appellant and at the same time issuing Exhibit SU3 to the appellant, it is clear that they conspired to deceive the whole world about the payment of the withholding tax, but for the petition written to the Chairman EFCC by the Monguno Consultative Youth Forum against the appellant which triggered off the investigation that led to the discovery that the withholding tax was not remitted to the Board of Internal revenue, Borno State.
Once the elements of the offence in Count 1 have been proved by the prosecution, they apply to Count 4. The prosecution successfully proved the offence against the appellant and the lower Court was right to confirm the conviction and sentence.
Learned Senior Counsel for the appellant was wrong in submitting that the burden of proving his innocence was shifted to the appellant. There was no doubt in the mind of the learned trial Judge regarding when the 1,500.000.00 was paid into the account of the Board. The payment was made on 28/4/2006 and not on 16/2/2005. The issuance of Exhibit SU3 to the appellant on 16/2/2005 was a deception since it was not reflected in Exhibit SU4 (the duplicate copy of Exhibit SU 3).
The prosecution proved its case against the appellant beyond all reasonable doubt. The appeal therefore lacks merit and it is accordingly dismissed. The judgment of the Court of Appeal, Jos in Appeal No. CA/J/64C/2011 delivered on 17 December, 2012 which affirmed the judgment of the Borno State High Court on 29 September, 2009 is further affirmed by this Court.
Appeal is accordingly dismissed.
IBRAHIM TANKO MUHAMMAD, J.S.C.: I have had the advantage of reading the Judgment just delivered by my learned brother Aka’ahs, JSC. I agree with my Lord’s conclusion that the appeal be dismissed. I, too, dismiss the appeal.
OLUKAYODE ARIWOOLA, J.S.C.: I had the privilege of reading in draft the lead judgment of my learned brother Akaahs, JSC just delivered. I agree entirely with the reasoning and conclusion that the appeal is devoid of any merit and should be dismissed. I have nothing more to add.
I too will dismiss the appeal as I have nothing more to add. Appeal dismissed.
AMINA ADAMU AUGIE, J.S.C.: I read in draft the lead judgment delivered by my learned brother, Akaahs, JSC, and I agree with him that the Appeal lacks merit and should be dismissed.
PAUL ADAMU GALINJE, J.S.C.: I have had the privilege of reading in draft, the judgment just delivered by my Learned brother Akaahs, JSC and I agree with the reasoning contained therein and the conclusion arrived thereat. The facts of this case are well articulated in the lead judgment. They clearly speak for themselves. Evidence before the trial Court shows clearly that the 1.5m collected by the Appellant from Monguno Local Government Council as withholding Tax was never paid to the Borno State Board of Internal Revenue. To cover up the offence of conferring corrupt advantage on the Appellant, the Appellant in conspiracy with one Alkali Imam procured receipt No.B0537977 dated 16th February, 2005 for 1,500,000.00 as evidence of payment of the withholding tax to the Borno State Board of Internal Revenue, whereas the duplicate copy of the same receipt showed that it was Leventis motors that paid 125.00. By this discovery, it is very clear that the Appellant intended to and did convert the money he collected for onward payment to the Borno State Board of Internal Revenue as withholding tax to his personal use. Section 19 of the Corrupt Practices and other Related Offences Act provides as follows:-
Any person, being an officer charged with the receipt, custody, use or management of any part of the public revenue or property, knowingly furnishes any false statement or return in respect of any money or property received by him or entrusted to his care, or any balance of money or property in his possession or under his control, is guilty of an offence, and on conviction be liable to seven (7) years imprisonment.
As chairman of Monguno Local Government, the appellant was charged with the management of the revenue of the Local Government. The fact that the ICPC forced him to return the money, he furnished false return in respect of the 1,500,000.00 through Exhibits SU3 and SU4.
For these few words and the more elaborate reasoning in the lead judgment, I find this appeal lacking in merit. Accordingly same shall be and it is hereby dismissed.
The judgment of the lower Court is accordingly affirmed by me as well.

THE FACTS:
The Prosecutions case was that on the 9th of January, 2013, some officers of Nigerian Security & Civil Defence Corps (NSCDC) went with an informant to Magboro Oil Pipeline restricted area to recover some exhibits. On the waterway leading to the Pipeline they saw a canoe with five men in it. There were many jerry cans of 50 litres and sacks in the canoe. It was alleged that the canoe was coming from the direction of the pipeline and facing the shore. As soon as the canoe moved closer, they were stopped by the officers of NSCDC who asked them what they were doing on the water way with a canoe containing many jerry cans and sacks attached to it. It was alleged that the Respondents cohorts who hid in the bush started shooting at the officers thus distracting them. This gave the occupants of the canoe the opportunity to jump into the water way and swim off. After they escaped and the gun shots coming from the surrounding bush had stopped, the officers with the aid of informants with them paddled the canoe to the shore of the Waterway and retrieved the 50 litres jerry cans and sacks where they discovered that the jerry cans and sacks were filled with Premium Methylated Spirit popularly known as Petrol.
The Prosecution alleged that with surveillance and the aid of Officers of NSCDC who were at the scene of crime and who had recognized the fleeing suspects, the first two Accused Persons Israel Omomoh and Imole Agitan were arrested and charged to Court on the 8th day of February 2013. They were arraigned on the 27th day of February 2013 for the Offences of Conspiracy and Unlawful Dealing in Petroleum Product contrary to Section 3(6) and Section 1 (17) (A) (B) of the Miscellaneous Offences Act Cap M 17 LFN 2004. The Accused Persons pleaded not guilty to the 2 Counts.
The 3rd Accused Person was arrested about the 9th day of February 2013 and was allegedly identified by the officers of NSCDC who were at the scene of crime at the time. It was further alleged that the 3rd accused was also found in possession of ammunition, live cartridge without permit. Upon his arrest, the original charge was amended to include his name and also a 3rd Count of possession of ammunition to wit; live cartridge without permit or licence against the 3rd accused only. The amended charge was filed on the 26th day of March 2013 and read to all the Accused Persons on the 29th day of April 2013 in the absence of their counsel. All the three Accused Persons pleaded not guilty to the first two Counts of Conspiracy and Unlawful Dealing in Petroleum Product while the 3rd Accused Person pleaded guilty to the 3rd Count of being in possession of ammunition to wit live cartridge without permit or license.
The three accused persons denied all the allegations pertaining to counts 1 & 2. They denied knowing each other before the arrest. The 1st accused said he was visiting relatives in Arepo when he was arrested. The 2nd accused said he was in the house of his younger brother in Arepo when he was arrested. The 3rd accused was arrested in his house. He admitted being in possession of two cartridges without licence. He said they were given to him by the Security Agency where he worked.
At the trial, the Prosecution called five witnesses and tendered several exhibits. The three accused persons testified and called two other witnesses. Following an application made by the Defence Counsel,

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the Court visited the locus on the 14th day of March, 2014. Surprisingly the only information in the Record regarding the visit was in the judgment. The proceeding at the locus was not recorded. The Court ordered the parties to file written addresses which were duly adopted. On 11/12/14, the Court delivered judgment discharging and acquitting the accused persons on all the three counts.
The Appellant being dissatisfied with the judgment, filed an Appeal by a Notice of Appeal dated the 10th day of March 2015 containing four grounds of appeal. The Appellants brief is dated 22/02/2016 and filed on 23/02/16 but deemed properly filed and served on 25/01/17. The Respondents filed a Notice of Preliminary Objection on 26/04/16 alleging that the Notice of Appeal was incompetent as it was filed jointly for the three Respondents instead of separately for each Respondent; and consequently deprived the Court of jurisdiction to entertain the appeal. The Respondents and their Counsel thereafter did not attend Court and did not file any brief of argument. There was evidence from the Court Records that all processes and hearing notices were duly served on them. On 10/01/18, the Court granted an order that the appeal be heard on the Appellants brief alone. On 14/3/18, when the appeal was heard, the Respondents were not represented but the Court Records showed they were duly served with hearing Notice.
Out of the four grounds of appeal, the Appellant distilled two issues for determination as follows:
1. Whether or not the learned trial Judge was right when he discharged and acquitted the 3rd Accused Person of the offence of possession of live ammunition without a licence.
2. Whether or not the learned trial Judge properly evaluated the evidence before her in the case against all the Accused Persons.
APPELLANTS ARGUMENTS ON THE ISSUES:
Learned counsel to the Appellant, Akande A. O. Esq. on issue 1 submitted that the 3rd Respondent had pleaded guilty to count 3 of the charge; being in possession of ammunition to wit live cartridges without permit or licence. Counsel argued that once an Accused Person pleads guilty to an offence and it appears to the Court that the Accused Person understands the nature of the offence and that he intended to admit the truth of all the essentials of the offence to which he has pleaded guilty, the Court shall convict him of that offence and pass sentence upon him. He referred to Section 218 of the Criminal Procedure Act, Cap C41, Laws of the Federation of Nigeria 2004 and the case of SUNDAY V THE STATE (2013) ALL FWLR (PT. 700) 1396 @ 1413 where it was held that where an Accused Person admits the guilt of an offence the legal burden of proof no longer arises, and no burden of proof rest on the accuser, it having been discharged by the admission of the accused. ADETUNJI V THE STATE (2001) 13 NWLR (PT.730) 375.

Counsel submitted that the trial judge ought to have passed sentence on the 3rd Respondent instead of allowing the matter to go to trial.
He submitted that in his judgment the learned trial Judge held that the Prosecutor did not make any effort to investigate the statement made to him by the 3rd Respondent that he was a security man. Counsel submitted that the learned trial Judge also found that the cartridges were given to him by the chairman of the security outfit where he was working as a security man. Counsel argued that in the Statement made by the 3rd Respondent admitted into evidence without objection by the trial Court as Exhibit 2, the 3rd Respondent claimed that he is an auxiliary nurse and that the ammunition found on him belonged to an unnamed Vigilante Group; but while giving evidence, he turned round to claim in his defence that he is a security man and that the ammunitions were given to him by the chairman of a security group. Counsel submitted that the investigating officers cannot be expected to investigate a defence which was not raised at the time the Accused Person was arrested especially as he claimed he was an auxiliary nurse who had no business with guns, ammunitions or cartridges. Counsel argued that the onus rests on the Accused Person who is raising a defence of being a

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security man for the first time in Court to show that he had the right to have the ammunition and that his security organization is registered or licensed in line with the provisions of Section 8(1) and 27(b) (11) Firearms Act Cap F28 LFN 2004. He cited in aid the case of STATE v. OLADOTUN (2011) LPELR -3226 (SC). Counsel submitted that it is irrelevant whether or not the live cartridges were given to the 3rd Respondent by another as all the Prosecution needed to prove was possession without a licence as the offence is one of strict liability. Learned counsel further submitted that another reason given for the acquittal of the 3rd Respondent on that count is that the live cartridge found in his possession is not a fire arm. Counsel submitted that the Prosecutor did not allege that the live cartridge is a fire arm but that it is ammunition” within the provisions of Section 8 (1) of the Fire Arms Act Cap F28 LFN 2004; and that under the said law, any person found in possession of any ammunition without a licence is guilty of an offence. Counsel argued that the 3rd Respondent not only admitted being in possession of the live cartridges but also that he had no licence for same. He urged the Court to set aside the decision of the trial Court and to convict the 3rd Respondent on count 3 of the amended charge dated 26th March 2013.
On issue 2, whether or not the learned trial judge properly evaluated the evidence against all the Respondents on counts 1 & 2, learned counsel examined in detail the qualifications of PW5 and the evidence he gave as to how he carried out the test to determine the contents of the jerry cans and submitted that his opinion should not be taken lightly in view of the fact that the Respondents did not call their own expert to contradict his evidence. Learned counsel submitted that while it is conceded that the onus is always on the prosecution to prove its case beyond reasonable doubt; that in view of the denial of the Respondents of being at the scene of the crime, the only reason why the Court should visit the scene of the crime is to find out whether the prosecution witnesses lied. He submitted that at the Locus-in-quo the learned trial judge merely asked questions but failed to allow counsel to know the way his mind was working to enable counsel address the issue.
He submitted that the failure of the learned trial judge to differentiate between an artificial waterway and a river made him discredit the prosecution witnesses and thereby in effect believe the evidence of the Respondents that they were not at the scene of the crime. Counsel argued that if the learned trial judge had made the correct findings he would have called upon the Respondents to prove their alibi, since the prosecution witnesses had fixed them firmly at the scene of the crime. On the various exhibits tendered by PW5 which the learned trial Judge ruled ought to have been tendered by the makers of the exhibits, learned counsel relying on the cases of OSAGIEDE OJO V GHARORO & ORS (2006) 5 SCM 1 @ 209; UDO V. ESHIET (1994) 8 NWLR (PT. 363) 483; OBEMBE V. EKELE (2001) 8 WRN 68; AG. OYO STATE VS FAIRLAKES HOTELS LTD (1989) 12 SCJNJ 20 submitted that PW5 had intimate relationship with the contents of the documents and that at pages 71 73 of the Record; he gave evidence of the relationship. He submitted that the Exhibits which buttressed the expert opinion of PVV5 that what is contained in the jerry cans and the sacks are Petroleum Products should not have been jettisoned simply on the basis that it was not tendered by the maker.
Learned counsel urged us to allow the appeal, to set aside the judgment of the trial Court and to convict the Respondents as charged.
RESOLUTION:
On 14/3/18 when this appeal came up for hearing, the Respondents and their counsel K.A Atima Esq. were absent. The Records of the Court showed that hearing notice was duly served on them. Not being present in Court, their Notice of Preliminary objection must be deemed abandoned. At any rate, the preliminary objection is lacking in merit. Order 17 Rule 3 (1) to (4) of the Court of Appeal Rules 2016 requires a prospective appellant to sign and file his Notice of Appeal. The law in criminal appeals is that each and every appellant shall appeal against his conviction and sentence. A joint notice of appeal by

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several appellants is therefore incompetent. See NIGERIAN ARMY V SGT ASANU SAMUEL & ORS (2013) LPELR-20931(SC); ODUTOLA V OGUNSEYE & ORS (2017) LPELR-42367(CA). The provisions however refer to Appellants and not Respondents. There is only one Appellant in this appeal and three Respondents. The Notice of Appeal signed and filed by the sole Appellant did not therefore offend the provisions of the Law.
The first issue formulated by the Appellant from ground 1 of his Notice of Appeal is whether or not the learned trial Judge was right when he discharged and acquitted the 3rd Accused Person of the offence of possession of live ammunition without a licence. Ground 1 of the Notice of Appeal and its particulars read thus:
GROUND 1
The learned trial Judge erred in law when he held that the prosecutor ought to have investigated the statement of the Accused person that the live cartridge was given to him by another person.
PARTICULARS OF ERROR
I. The offence of unlawful possession of ammunition prohibits possession not ownership of the ammunition.
II. The 3rd Accused Person both in his extra judicial statement and evidence before the Court admitted being in possession of the live cartridge.
III. It is trite that ignorance of the law relating to an offence is no excuse.
In his judgment at page 162 of the Record, the learned trial judge observed:
The Prosecutions submission that the 3rd Accused Person admitted guilt of the 3rd count of the charge is devoid of evidence of the guilt. The Prosecution have not established that the 3rd Accused Person is guilty of the 3rd count charge.
It is trite that plea of guilty without evidence of guilt will not ground a conviction See Kayode Vs. State (2008) 2 WRN 102, LINE 30 35. Also Abdul-Latiff Ahmed vs. C.O.P. (1971) NWLR 48.

Section 218 of the Criminal Procedure Act provides thus:
If the accused pleads guilty to any offence with which he is charged, the Court shall record the plea as nearly as possible in the words used by him and if satisfied that he intended to admit the truth of all the essentials of the offence of which he has pleaded guilty, the Court shall convict him of that offence and pass sentence upon or make an order against him unless there shall appear sufficient cause to the contrary.”
From the Record of appeal, pages 40 and 41, it is obvious that the learned trial Judge did not record the plea of guilty in the words used by the 3rd Respondent. The Record merely said Count 3 ….. Pleads guilty. The Court by proceeding as it did, was obviously not satisfied that the 3rd Respondent intended to admit the truth of all the essential elements of the offence of which he has pleaded guilty. Section 218 CPA gave the trial judge the discretion as to whether or not to convict and pass sentence on the accused on his plea of guilty. There is no basis for questioning the learned trial judges exercise of discretion not to convict and sentence the 3rd Respondent on his guilty plea.
However it is necessary to now proceed and see whether the learned trial Judge was right when he discharged and acquitted the 3rd Appellant of the offence of possession of live ammunition without a licence. Count 3 reads as follows:
That you Sunday Tuwatimi, on or about the 9th day of February, 2013, at Magboro Village, Obafemi Owode Local Government, Ogun State of Nigeria, within the Abeokuta Judicial Division of Federal High Court of Nigeria, was found in possession of ammunition to wit: live cartridge without permit or

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licence granted in respect of same and thereby committed an offence contrary to Section 8(1) of the Firearms Act and punishable under Section 27 (b) (ii) of the Firearms Act.
The Prosecution apparently quoted wrong sections of the law. The relevant sections are Section 9 (1) and Section 28 (b) (ii) of the Firearms Act. This is of no moment because Section 166 CPA provides that no error in stating the offence or the particulars required to be stated in the charge and no omission to state the offence or those particulars shall be regarded at any stage of the case as material unless the accused was in fact misled by such error or omission. See FRN V IFEGWU; EGUNJOBI V FRN (2012) 3 NWLR (PT. 1342) 534; OLATUNBOSUN V THE STATE (2013) 34 WRN 1; OGBOMOR V STATE (1985) 1 NWLR (PT.2) 223 @ 233; IKPA V STATE (2017) LPELR-52590 (SC). There is no evidence that the 3rd Respondent was misled by the wrong sections cited in the charge.
It appears from the relevant section of the law that the ingredients of the offence is that the accused is in possession of ammunition in this case live cartridge and that he has no licence or permit for the live cartridge. The 3rd Respondent gave evidence as DW5. His evidence in chief and cross-examination are at pages 99 102 0f the Record. The relevant portions are as follows:
Examination in chief:
ATIMA: What do you have to say about the two cartridges they found in your hand?
DW5: Yes. I am a security. When we resume at night, we go to Chairman;s house to collect the guns when we close from work in the morning we return the guns but we hold on to the 2 cartridges given to all of us security there. We are 10 in number.
ATIMA: What do you have to say about the charge that you had 2 live cartridges without permission?
DW5: Yes.
ATIMA: What do you say about it?
DW5: Being security man that is why I had the cartridges with me.
CROSS-EXAMINATION
AKANDE: The live cartridges found in your house, do you have licence to have them?
DW5: No, I don’t have licence.
AKANDE: Do you know it is an offence to carry it without a licence?
DW5: I don’t know it is an offence because I am a security man. Our Chairman gives us. That’s why I have it.
AKANDE: The security outfit you work for is a private outfit?
DW5: It’s a private company, the mast I watch over belongs to MTN.
AKANDE: Does working in a private company give you right to carry life cartridge?
DW5: Since he is a security man, they give us the cartridge. I don’t know it is an offence.

It is evident from the examination in chief and the cross-examination that the 3rd Respondent was indeed found in possession of two live cartridges and that he had no licence for them. The learned trial Judge in his judgement at page 161 of the Record had indicated that he found it strange that the Prosecution did not make any effort to investigate the claim of the 3rd Respondent that he was a security man and that the cartridges were given to him by the Chairman of his Security outfit. PW3 Rasak Oladepo an officer of NSCDC Ogun State in his evidence in chief at page 54 of the record testified that he took part in the arrest of the 3rd Respondent in his house where they found 2

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cartridges of bullets, a lot of manmade 50 litres cover, 11 litres empty jerry cans, a lot of syringe and needles, a big black polythene bag and sack. He testified that he took the 3rd Respondent to the conference room where he obtained his statement. He testified that when he asked him about the needles and syringe, he said he was an auxiliary nurse; that when he asked him about the cartridges, he said it belonged to a vigilante group. The Statement he obtained from 3rd Respondent was admitted in evidence without objection as Exhibit 2. The cross-examination of this witness is at pages 60 – 63 of the Record. He confirmed under cross-examination that he recovered one identity card belonging to a Security Company from the 3rd Respondent. He investigated the Security Company by calling the number on the card but there was no response. Surprisingly, PW3 was not cross-examined about his claim that the 3rd Respondent told him he was an auxiliary nurse as contained in Exhibit 2. No questions were put to him about the contents of Exhibit 2. Learned counsel for the Appellant is consequently right that the Prosecution cannot be expected to investigate the assertion of the 3rd Respondent that he got the cartridges from his un-named Chairman and the un-named security company. The evidence was an afterthought given during hearing when it was impossible to conduct any further investigation. The 3rd Respondent failed to give precise particulars that could justify his being in possession of the cartridges, for example the name of his Chairman who allowed him to retain possession of the cartridges and the name of his Security Company as the Security Company may be licensed or registered to own firearms and ammunitions. The burden on the prosecution is to prove possession of the ammunition and absence of licence. This they did. It is the duty of the prosecution to prove the guilt of the accused beyond reasonable doubt. But once a defence is raised on matters within the peculiar knowledge of the defence, it is the duty of the defence to prove the defence once the burden on the prosecution is discharged. See CHRISTOPHER AKHIMIEN V THE STATE (1987) LPELR-332 (SC).

The learned trial Judge erroneously thought the Prosecution considered the cartridges as firearms, thus his observation that:
I have looked at the Fire Arms Act i.e. Section 2 and 3 Fire Arms Act F28 LFN, 2004 and it does not describe a Cartridge as a firearm prohibited under the Act.”
The view of the learned trial judge is misconceived. The Prosecution referred to the cartridge as ammunition, not firearm. Section 2 of the Fire Arms Act provides that ammunition means ammunition for any firearm and any component part of any such ammunition. A cartridge is ammunition for a gun which is a firearm. The learned trial judge erred in coming to the conclusion that the prosecution did not prove the elements of the offence charged under Count 3. The 3rd Respondent not only admitted being in possession of the live cartridges, he also admitted that he had no licence for them. The Prosecution proved the elements of the count beyond reasonable doubt. Issue 1 is resolved in favour of the Appellant.
On issue 2 whether the learned trial Judge properly evaluated the evidence before him in counts 1 and 2, Akande Esq. dwelt mainly on the evidence of PW5, the recovery of the items from the canoe, their preservation and manner of tendering as exhibits in Court. There is a whole lot more the prosecution needed to do in order to establish these two counts against the Respondents beyond reasonable doubt. Count 1 of the charge is for the offence of conspiracy to commit a felony to wit dealing in petroleum product from NNPC Oil Pipeline situate at Magboro contrary to Section 3(6) of the Miscellaneous Offences Act Cap M17 Laws of the Federation of Nigeria. Count 2 is the substantive offence, dealing in petroleum product from NNPC Oil Pipeline situate at Magboro without lawful authority contrary to and punishable under Section 1(17) (a) (b) of the Miscellaneous Offences Act Cap M17 Laws of the Federation of Nigeria.

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Section 3 provides: Offence by body corporate evidence of accomplices:
Section 3(6) : Where a person aids, counsels, procures, or conspires with any other person to commit any of the offences created by this Act, he shall be guilty of an offence and shall on conviction be liable to the same punishment as prescribed for that offence under the Act.
Section 1(17) (a) (b); DEALING IN PETROLEUM PRODUCTS, ETC
Any person who without lawful authority or an appropriate licence
(a) Imports, exports, sell, offers for sale, distributes or otherwise deals with any crude oil, petroleum or petroleum product in Nigeria.
(b) Does any act for which a licence is required under the Petroleum Act
Shall be guilty of an offence and liable on conviction to imprisonment for life and in addition any vehicle, vessel, aircraft or other conveyance used in connection therewith shall be forfeited to the Federal Government.
From the heading and the definition above, dealing with petroleum products implies using the products in such a manner as to make gains or benefits there from by way of trade or commerce. See ANIM V FRN (2014) LPELR-23219 (CA); ABASS V FRN & ORS (2018) LPELR-43695(CA).
For the prosecution to secure the conviction of the accused persons in respect of the offences above, all the ingredients of the offences must be proved beyond reasonable doubt. The ingredients or elements of the offences are:
1. That there was a conspiracy amongst the three Respondents to deal in petroleum products.
2. That the three Respondents were dealing in petroleum products.
3. That the dealing in petroleum products was without authority or appropriate license.
4. That the petroleum product was Premium Methylated Spirit otherwise known as Petrol
5. That the petroleum product was from NNPC Oil Pipeline situate at Magboro.
The question now is whether the Prosecution led sufficient evidence to establish all of the above ingredients. But before dealing with the above, there is need to pronounce on the fate of the visit to the locus in quo. At paragraph 4.30 page 8 of his brief of argument. Learned counsel for the Appellant submitted:
I humbly refer the Honourable Court to page 160 of the Record of Appeal which showed clearly that at the locus in quo, the learned trial judge merely asked questions but failed to allow the counsel to know the way her mind is working to enable counsel address properly on same.
There is in my view merit in this complaint. The procedure adopted by the learned trial judge with respect to the visit to the locus in quo was wrong. A trial Judge is not supposed to act on his own observations at the visit as his observations are not evidence. He cannot therefore treat such observations as established facts and proceed to make findings on them. Evidence must been given by the parties as to what transpired at the locus in quo and opposing party given the opportunity to cross-examine on it. Where there is a conflict, the trial judge could then use his observation to resolve the conflict. See the following cases: EJIDIKE & ORS VS. OBIORA (1951) 13 WACA 270; ABOYEJI VS. MOMOH (1994) 4 SCNJ (PT 2) 302 @ 313; UZONDU VS. UZONDU (1997) 9 NWLR (PT. 521) 466 @ 482; AMADI V NWOSU (2014) LPELR-24428 (CA). In OBA IPINLAIYE II V OLUKOTUN (1996) 6 SCNJ 74 @ 95, the Supreme Court observed:
……..the trial judge should be careful to avoid placing himself in the position of a witness and arriving at conclusions based on his personal observation of which there is no evidence in support on record. It is not open to substitute the result of his own observation for sworn testimony nor to reach conclusions from his observation at the scene in the absence of any sworn testimony to the existence or non existence of the facts he had observed.
A careful scrutiny of the Record of proceedings revealed that there is no record whatever of what transpired at the visit to the locus in quo. No evidence was given by any of the parties on observations at the scene, no cross-examination occurred. Yet in his judgment at page 160 of the

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Record, the learned trial Judge observed:
Upon the application of the Defence Counsel, the court visited the locus delicti or criminis on the 14th March, 2014 where the crime was said to have been committed. To the dismay of the Court, there was no river there……
PW2 pointed to a spot he described by a pole which was a distance of about 80 meters away as the point where the Accused Persons allegedly jumped out of the boat.
I must say that the distance he showed the Court was such that it is improbable that anybody would be able to properly see and later identify criminals under the circumstances described by the prosecution witnesses i.e. that there was confusion arising from the pandemonium caused by the gun shots and attack on NSCDC Officers.
It was even more amazing that there was no Nigerian National Petroleum Corporation (NNPC) Oil Pipeline shown to the Court, neither was there any NNPC sign board showing restricted area shown to the Court.
It is obvious then that the learned trial judge left his hallowed position of arbiter and turned himself into a witness by his observations as to what happened at the locus in the absence of any record in the proceeding on the visit. This is prejudicial to the Appellant. The evidence should have been on record and opportunity given for further clarification through cross-examination. In the circumstances, everything concerning the visit to the locus must be discountenanced. I shall however go on to see whether with the exclusion of the outcome of the visit to the locus, the Appellant discharged the burden of proving all the ingredients of the offences charged beyond reasonable doubt.
In his judgment at page 163 of the Record, the learned trial judge observed:
All the evidence of the prosecution was based on the fact that they saw five (5) men in a canoe with jerry cans and bags containing petroleum products who jumped into the river and swam away. None of the three Accused Persons was arrested at the scene of the alleged crime. None of the three accused persons were arrested while they were dealing in petroleum products. No evidence was put before the Court to prove that any or all of the three (3) Accused Persons were dealing in petroleum product. No evidence was led to show that any relationship ever existed between the three accused persons to convince the Court that there was a conspiracy to deal in petroleum products. None of the Prosecution witnesses conducted any scientific test on the said petroleum product to ascertain the nature of the product. No evidence was led as to which Nigerian National Petroleum Corporation Oil Pipeline was vandalized and the products were taken from without licence. No single evidence was led to show any of the ingredients of the offence for which the Accused Persons were charged.
I think there is merit in the observations of the learned trial Judge above. I am not going to concern myself with the first count of conspiracy because the Appellant did not appeal against that aspect of the judgment. Count 2 is dealing in petroleum product from NNPC Oil Pipeline situate at Magboro without lawful authority. The learned trial Judge is right that the Prosecution led no evidence in proof of the ingredients of dealing in petroleum products. Some of the Prosecution witnesses testified that they saw five men in a canoe with petroleum products who jumped into the river and swam away. They later arrested the Respondents based on tips from informants. The informants were not called to testify. The witnesses gave no indication of the nature of the tips received that led to the arrest of the Respondents. The Respondents denied all the allegations. Apart from the evidence of some of the witnesses who claimed to have recognised the Respondents from citing them at Magboro, the Prosecution

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was not able to come up with any evidence that they were dealing in petroleum product from NNPC Oil Pipeline. There was no report of vandalization or tampering with NNPC Oil Pipeline in Magboro or any other near vicinity. The mere fact that the canoe was in an NNPC restricted area cannot amount to evidence of dealing in petroleum products. The Prosecution was obviously acting on mere speculation, suspicions and conjecture. It serves no useful purpose going into the issue of whether what was found in the bags and jerry cans in the canoe were indeed Premium Methylated Spirit popularly known as Petrol as the prosecution failed to adduce convincing evidence that the Respondents were dealing in petroleum products or that the products were indeed from NNPC Oil Pipelines at Magboro. Nearly all the submissions of the Appellant on issue 2 had to do with the evidence of PW5 who was not at the scene of the alleged crime but merely took custody of the items found in the canoe which he tried to preserve and which he tendered in evidence at the trial. His evidence was mostly hearsay. Pictures were taken. He tendered the pictures without calling the photographer who actually took the pictures and without laying the proper foundation to explain why he was not called. He tendered the scientific report of the test carried out by experts without calling the experts and without laying any foundation. PW5’s evidence even if properly tendered would not have salvaged the case of the prosecution. The law is settled that the burden of proof lies on the Prosecution and the standard is proof beyond reasonable doubt. The burden is static and does not shift. See Sections 131 (1) and (2) and 132 of the Evidence Act, 2011. See also the following cases: THE STATE V FATAI AZEEZ & ORS (2008) 4 SC 188; KABIRU VS. A.G. OGUN STATE(2009) 5 NWLR (PT.1134) 209; OSUAGWU VS, STATE (2012) 5 NWLR (PT.1347) 360. Any slightest doubt must be resolved in favour of the accused person. There is doubt as to whether any of the Respondents was one of the suspects in the canoe who dived out of the canoe into the river or waterway. PW1 under cross-examination told the Court that the distance between the vehicle they were in and the canoe in the water was about 80 metres. It is doubtful that with such distance and the shooting that allegedly occurred, PW1 and the other witnesses had sufficient presence of mind for the features of the occupants of the canoe to register in their minds in such a way that they would be able subsequently identify them. More so when PW1 stated that they did not know them previously. There is doubt as to whether any of the Respondents or indeed the occupants of the canoe were dealing in petroleum product from NNPC Oil Pipeline situate at Magboro. There was no evidence as to where the petroleum products in the canoe were obtained from or what they were intended for. There is doubt as to whether the NNPC Oil Pipeline at Magboro if it existed was tampered with. There were too many unresolved issues in the case as regards counts 1 and 2. The evidence was primarily speculative. The learned trial Judge was right in discharging and acquitting the Respondents on counts 1 and 2. This appeal consequently succeeds in part and is allowed in part. The judgment of the Court discharging and acquitting all the Respondents on counts 1 and 2 is affirmed. The judgment of the trial Court discharging and acquitting the 3rd Respondent on count 3 is set aside. In its place, the 3rd Respondent is hereby convicted on count 3 and sentenced to imprisonment for one year or to a fine of N100, 000.00 (One hundred thousand naira).
HARUNA SIMON TSAMMANI, J.C.A.: I concur with the judgment delivered by my learned brother, C. E. Iyizoba, JCA.
The learned trial Judge acquitted and discharged the Appellant and his co-accused on the three (3) counts charge. I agree with my learned brother that the learned trial Judge erred in acquitting the 3rd Respondent on the charge of unlawful possession of ammunition. The offence created by Section 8(1) and punishable under Section 27(b)(ii) of the Firearms Act, is, in my view one of strict liability. Accordingly once a person is charge with unlawful possession of Firearms under the Act, the burden will be on him to prove that his possession is lawful. A provision like this is lawful. See the proviso to Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria, which validates any law

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which imposes upon a person charged with a criminal offence the burden of proving certain facts.
It therefore means that, once possession of ammunition is prima facie unlawful, the burden to prove that the possession is lawful lies on the defence. This is because, the burden cast on the prosecution is to prove a negative, and not a positive assertion. Accordingly, the fact of whether his possession is lawful is within the knowledge of the accused person (Appellant herein). The Appellant therefore had the duty to lead credible evidence to show that he possessed the ammunition lawfully. I therefore agree, upon the evidence on record, that the Appellant failed to discharge that burden and the learned trial Judge erred when he acquitted him on that charge.
For the above reason and the other reasons stated in the lead judgment, I agree with the reasoning and conclusions arrived at by my learned brother. I also abide by the verdict of guilty and the sentence passed on the 3rd Respondent on Count 3; and other consequential orders made therein.
NONYEREM OKORONKWO, J.C.A.: I have had the opportunity of reading in draft the lead judgment of my lord Chinwe Eugenia Iyizoba J.C.A. in this appeal whereby the judgment of the trial Court discharging the respondents on counts 1 and 2 was upheld and also setting aside the judgment of the lower Court in count 3 and substituting therefore a term of imprisonment of 1 year or a fine of N100, 000.00.
The lead judgment meticulously examined the entire proceedings at the lower Court and reached sound findings on facts and decisions on law.
The judgment has demonstrated the need in prosecution to carefully analyze a statute creating an offence to crystalize the elements or ingredients of the offence created with a view to leading evidence on those elements or ingredients.
I agree with the lead judgment and abide by the orders made therein.
Appearances

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SIDI DAUDA BAGE, J.S.C. (Delivering the Leading Judgment): The Appellant Mrs. Patience Okoro Eye and five others, namely Afolabi Olufemi Johnson, Ilori Adekunle Sunday, Asemota Augustina, Kolawole Babalola, Olaniran Muniru Adeola and Fatai Adedokun Yusuf were on 2nd June, 2015 arraigned before the Federal High Court, Ibadan Judicial Division, charged with abuse of office, corrupt practices, fraud and illegally owning assets. The particulars of the offence charged are as follows:
COUNT 1
“That you PATIENCE OKORO EYE, AFOLABI OLUFEMI JOHNSON, ILORI ADEKUNLE SUNDAY. KOLAWOLE BABALOLA, OLANIRAN MUNIRU ADEOLA and FATAI ADEDOKUN YUSUF on or about 5th August, 2014 in Ibadan within the Jurisdiction of this Honourable Court, have by virtue of abuse of your office, being employees of Central Bank of Nigeria, contributed to the economic adversity of the Federal Republic of Nigeria when you destroyed a box marked “Counted Audited Dirty” filled with Newspapers in place of a box containing N10,000,000 (Ten Million Naira) of N1000 denomination and which activity led to the increase of money in circulation which the briquetting exercise of Central Bank of Nigeria was intended to control and you thereby committed an offence punishable under Section 1(2) (b) and Section 10(1) of the Recovery of Public Property (Special Provision) Act, Cap. R4, Laws of the Federation of Nigeria, 2004.”
COUNT 2
“That you PATIENCE OKORO EYE, AFOLABI OLUFEMI JOHNSON, ILORI ADEKUNLE SUNDAY, KOLAWOLE BABALOLA, OLANIRAN MUNIRU ADEOLA ANd FATAI ADEDOKUN YUSUF on or about 5th August, 2014 in Ibadan within the Jurisdiction of this Honourable Court, engaged in corrupt practices when you replaced the content of a box of N1,000 notes denomination in a total sum of N10,000,000 (Ten Million Naira) marked as “Counted Audited Dirty” meant for briquetting with Newspapers and which sum you converted to your own use and you thereby committed an offence punishable under Section 1 (2) (a) and Section 10(1) of the Recovery of Public Property (Special Provision) Act Cap. R4 Laws of the Federation of Nigeria, 2004.”
COUNT 3
“That you PATIENCE OKORO EYE, AFOLABI OLUFEMI JOHNSON, ILORI ADEKUNLE SUNDAY, ASEMOTA AUGUSTINA, KOLAWOLE BABALOLA, OLANIRAN MUNIRU ADEOLA and FATAI ADEDOKUN YUSUF on or about 5th August, 2014 in Ibadan within the Jurisdiction of this Honourable Court, being employees of Central Bank of Nigeria owned asset, to wit: the sum of N10,000,000.00 (Ten Million Naira) being money you took from a box marked “Counted Audited Dirty” which was meant for briquetting and which you replaced with Newspapers and for your personal purpose which asset is in excess of your legitimate, known and provable income and assets and you thereby committed an offence under Section 7 (2) of the Bank Employees etc, (Declaration of Assets) Act Cap. B1 Laws of the Federation of Nigeria, 2004.”
COUNT 4
“That you PATIENCE OKORO EYE, AFOLABI OLUFEMI JOHNSON and ILORI ADEKUNLE SUNDAY, on or about 5th August, 2014 in Ibadan within the Jurisdiction of this Honourable Court, with intent to defraud, were privy to making false entry in a document, to wit: the report of your briquetting exercise that took place at Central Bank of Nigeria, headquarters, Abuja, to the effect that the briquetting exercise was successful without any abnormality when indeed a box stuffed with newspapers as against N10,000,000 (Ten Million Naira) notes was discovered during your briquetting exercise on the 5th of September, 2014 and you thereby committed an offence punishable under Section 438(b) of the Criminal Code Act Cap, C38 Laws of the Federation of Nigeria, 2014.”
COUNT 5
“That you PATIENCE OKORO EYE, AFOLABI OLUFEMI JOHNSON 1st – 3rd and ILORI ADEKUNLE SUNDAY on or about 5th August, 2014 in Ibadan within the Jurisdiction of this Honourable Court, with intent to defraud, were privy to omitting material particulars from a document to wit: the report of your briquetting exercise that took place at Central Bank of Nigeria, Ibadan branch which you submitted to Central Bank of Nigeria headquarters Abuja, to the effect that the briquetting exerciser was successful without any abnormality when indeed a box stuffed with newspapers as against N10,000,000 (Ten Million Naira) notes was discovered during your briquetting exercise on the 5th of September, 2014 and you thereby committed an offence punishable under Section 438(c) of the Criminal Act Cap, C38, Laws of the Federation of Nigeria, 2004.”
The Appellant pleaded not guilty to all the counts of the charge and the trial proceeded. On 2nd June,
2015, an oral application was made on behalf of the
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Appellant for bail and same was refused, thereafter, on the same day, a formal application was filed accompanied by an affidavit in support and a written address.
On the 8th June, 2015, the respondent filed its counter affidavit and a written address in opposing the bail application. In refusing the bail, the learned trial judge in his Ruling delivered on 15th June, 2015 held as follows:
“…. I hold that the accused persons have not been able to persuade me by strong and cogent reasons why I should exercise my discretion in their favour. The application fail and same are hereby dismissed. Alternatively, I enter an order for accelerated hearing and in making this order, the Court will tolerate frivolous application particularly on adjournment either from the prosecution or defence counsel.”

Dissatisfied with the Ruling of the trial Court, the appellant filed an appeal. It was heard by the Ibadan Division of the Court of Appeal. The Court on 9th December, 2015 affirmed the decision of the trial Court when it said:
“l remain of the firm view that the learned trial Judge was painstakingly enough in considering all the most relevant materials before him, in terms of the affidavits of the Appellant and the counter affidavit of the Respondent as well as the proofs of evidence and applicable well established principles governing the granting or refusal of the application in the instant appeal. I am unable to see, in this appeal, any strong reason to fault any of the steps taken by the learned trial judge in the exercise of his discretion. I am not convinced that there is any good reason to call for this Court to accept or accede to the request to interfere with the exercise of the discretionary power of the lower Court in the instant appeal with respect to its refusal of the application for bail. I am fully satisfied that the learned trial judge in the circumstance exercised his power to grant or refuse bail to the Appellant judicially and judiciously.”

This appeal is against that judgment. In accordance with Rules of this Court, briefs of argument were duly filed and served. The appellant’s brief was filed on the 26th September, 2016, while the respondent’s brief was filed on the 23rd October, 2017 was deemed duly filed and served on 26th October, 2017.
Learned counsel for the appellant formulated three issues for the determination of his appeal.
“1. Whether the Court below was correct in all the circumstances to have upheld the decision of the Trial Court in refusing the Appellant bail after finding as it did, that there were “procedural Missteps” taken by the Trial Court in reaching its ruling? Ground 1 and 5.”
“2. Whether the Court below was correct in accepting as unchallenged paragraphs 9, 11, 12, 13, and 18 contained in Respondent’s Counter Affidavit in opposition to the Appellant’s bail application and act on the story as set out by the Respondent? – Ground 2.
“3.Whether the Court below was correct in affirming the decision of the trial Court in the light of the provisions of Sections 158 and 162 of the Administration of Criminal Justice Act, 2015 as well as Sections 36(5) of the Constitution of Federal Republic of Nigeria, 1999 (as Amended)? – Grounds 3 and 4.”

Although learned counsel for the appellant formulated 3 issues for determination, learned counsel for the respondent respectfully submitted that only two issues call for determination in this appeal and the issues are;
1. Whether the Court of Appeal was not right in refusing to interfere with the exercise of discretion of the learned trial judge refusing to admit the Appellant to bail pending her trial (See grounds 2, 3 and 4).”
2. Whether the Counter Appeal was not right in holding that the procedure adopted by the learned trial Judge in the consideration of the Appellant’s application for bail did not occasion any prejudice or miscarriage of justice to warrant the setting aside of the decision of the trial Court. (See ground 1 and 5).”

After a careful perusal at the issues formulated by both the appellant and the respondent, the view of this Court is that a lone issue arise for the determination of this appeal to wit:
“Whether the lower Court was right in refusing to interfere with the exercise of discretion of the learned trial judge refusing to admit the appellant to bail pending the determination of her trial.”

Learned counsel for the appellant submitted that where an offence carries a sentence exceeding 3 years imprisonment, bail in such a case is not a mere matter of course, but rather, at the discretion of the Court which must be exercised judicially and judiciously.
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Learned counsel argued that, the Administration of Criminal Justice Act, 2015 has obviated the need to make the grant of bail substantially subject to the discretion of the trial Judge.
Counsel cited Section 158 of the Administration of Criminal Justice system as follows:
“When a person who is suspected to have committed an offence or is accused of an offence is arrested or detained, or appears or is brought before a Court, he shall, subject to the provisions of this part, be entitled to bail.”

Learned counsel argued that, the word “shall” inserted into the drafting of the provision of the law cited above removes the discretionary tone in admitting to bail a defendant. Counsel submitted that in TABIK INVESTMENT LTD. & ANOR. VS GUARANTY TRUST BANK PLC (2011) LPELR this Court held that;
“The word “Shall” connotes mandatory discharge of a duty or obligation, and when the word is used in respect of a provision of the law that requirement must be met. The word shall may have other meanings, for when used in legislation, it may be capable of translating into a mandatory act giving permission or direction. See NNONYE VS ANYICHIE & ORS. (2005) 2 NWLR PT. 910 page 623. The use of word shall in the case at hand, to my mind conjures mandatoriness, the conditions of which must be met and satisfied.”
Learned counsel also cited Section 118(2) of the Criminal Procedure Act which provides thus:
“Where a person is charged with any other felony other than a felony punishable with death, the Court may if it thinks fit, admit him to bail.”

Counsel submitted that the wordings of Section 118(2) above, indicate that the Court “may” used in Section 118(2) above, indicate that the Courts were given total discretion as to the granting of bail to a defendant.
Learned counsel argued that the appellant had in paragraph 23 of her affidavit in support of the application for bail at pages 465 of the record stated that she would regularly attend Court to stand for her trial if admitted to bail. The averment which was not contradicted by the respondent in its counter affidavit at pages 483 to 487 of the record of appeal.
Learned counsel further submitted that there is no evidence before the trial Court indicating that the appellant would commit another offence or attempted to evade her trial.
Counsel argued that the provision of Section 162 do not permit mere speculation when opposing the granting of bail. He further argued that the respondent counter affidavit was bereft of any facts or solid evidence alluding to an attempt by the appellant to run foul of any of the provisions in Section 162 save for feeble averment in paragraph 12.
In his final argument, learned counsel for the appellant submitted that it is settled law that legislation is to be given its ordinary interpretation and effect, most especially where words used are straight forward and unambiguous he cited TORIOLA VS WILLIAMS 1982 7 SC. 27 and LAWAL VS G. B. OLLIVANT 1972 3 SC.
He urged the Court to hold that the lower Court was incorrect in upholding the decision of the trial Court in light of Section 158 and 162 of Administration of Criminal Justice Act 2015 and Section 36(5) of the Constitution of Federal Republic of Nigeria 1999 (as amended).
On the other hand, learned counsel for the respondent argued that there is a concurrent finding of fact by Federal High Court, Ibadan and the Court of Appeal that the appellant is not entitled to bail having regards to the materials presented before the Court. He submitted that the attitude of this Court over the years is that it would not interfere with the concurrent findings of facts of both the High Court and the Court of Appeal unless it is shown by the appellant that such findings are perverse. He cited SOBAKIN VS THE STATE (1981) 5 SC 375.

Learned counsel observed that although the power of the trial Court to admit the appellant to bail in respect of the offences for which she is standing trial, is discretionary, such discretionary power must be exercised judicially and judiciously, counsel submitted that since appellant’s appeal is against the exercise of discretion, the appellant needs to satisfy this Court that the lower Court did not exercise its discretion judicially and judiciously.
Learned counsel argued that in a situation such as the instant appeal, which borders on the exercise of the discretion, the duty of this Court is simply to look at the record, review same and determine whether the trial Court and the Court below exercised the discretion judicially and judiciously having
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regards to the facts and circumstances of the case, he cited ALI VS THE STATE (2012) 10 NWLR (Pt. 1309) 589 at 609 Paras A – D and SAFFIDINE vs C.O.P. (1965) 1 All NLR 54.
Learned counsel submitted that the requirements set out under Section 162 of the Administration of Criminal Justice Act has not changed the position of the law with regard to the factors that the Court would consider in refusing or granting bail, according to him, it has also not removed the discretionary power of the Court to refuse or grant bail.
Counsel observed that the gravity of the offence involved is of paramount importance to a trial Court in deciding on the grant or refusal of bail. He further argued that the offences being alleged against the appellant attract the maximum sentence of twenty (20) years imprisonment, it is like capital offence against the nation’s economy. So, if released on bail, the severity of the punishment which conviction would entail would make the appellant to evade her trial if released on bail at this stage.
Learned counsel submitted that it is settled law that the more cogent the evidence before the Court, the greater the possibility that the defendant may attempt to evade his trial or may refuse to appear at his trial.
Learned counsel finally urged this Court to hold that there is no miscarriage of justice in the approach adopted by the two lower Courts.
On the part of this Court, Section 118(2) of the Criminal Procedure Act, in my view makes the grant of bail to an accused person standing trial before a High Court, purely a discretionary matter in the hands of the trial judge. The trite position of the law is that in exercising the jurisdiction given to him by the law in the grant or refusal of bail, the trial judge is bound to consider the weight of facts pleaded to, in an affidavit evidence placed before him. The determination of the criteria is quite important because the liberty of the appellant stands or falls by the decision of the Court. In performing the judicial function, the Court wields a very extensive discretionary power, which must be exercised judicially and judiciously.
See BAMAIYI VS THE STATE (2001) 8 NWLR (Pt. 715) 270 EKWENUGO vs F.R.N. (2001) 6 NWLR (Pt. 708) 171 DANTATA VS POLICE (1958) NRNLR 3.
In exercising its discretion, the Court is bound to examine the evidence before it without considering any extraneous matter. The Court cannot exercise its whims indiscriminately. Similarly, there is no room for the Court to express its sentiments. I must say that, it is a hard matter of law, facts and circumstances which the Court considers without being emotional sensitive or sentimental.
See ADAMU SULEIMAN & ANOR VS C.O.P. PLATEAU STATE, 33 NSCQR (Pt. 2) 735 at pp. 758 -759.
In EKWENUGO VS F.R.N. Supra the Court held that:
“The issue of grant of bail by a trial Court calls for due exercise of discretion which entails the application of common sense based on a given set of facts and attendant circumstances in accordance with justice. The discretion must be exercised not only judicially, but judiciously as well.”
See also UNIVERSITY OF LAGOS VS OLANIYAN (1985) 1 NWLR (Pt. 1) 156 SAFFIDINE vs C.O.P. (1965) 1 All NLR 54 UGBOMA VS OLISE (1971) All NLR 8 and ODUSOTE VS ODUSOTE (1971) All NCR 219.
It is well settled that if judicial discretion has been exercised bonafide uninfluenced by irrelevant considerations and not arbitrarily or illegally by the lower Court, an appeal Court will not ordinarily interfere. But there are exceptions whereby this Court is entitled to impeach the exercise of judicial discretion by the lower Court. Thus, an appellant Court may interfere with exercise of judicial discretion if it shown that there has been a wrongful exercise of the discretion such as where the trial Court acted under misconception of law or under misapprehension of fact in that it either gave weight to irrelevant or unproved matters or it omitted to take into account matters that are relevant or where it exercised or failed to exercise the discretion on wrong or inadequate materials and in all other cases, where it is in the interest of justice to interfere.
See ENEKEBE VS ENEKEBE (1964) 1 All NLR 102 at 106, DEMUREN VS ASUNI (1967) 1 All NLR 94 at 101, MOBIL OIL VS FEDERAL BOARD OF INLAND REVENUE (1977) 3 SC 97 at 141, SOLANKE VS AJIBOLA (1968) 1 All NLR 46 at 52.

Learned trial judge in his Ruling at page 533 of the record stated that:
“I have considered and reflected on the proof of evidence. They are mind boggling and weighty. I have not been persuaded by the applications and submissions made before to think otherwise.”
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It is quite clear that the learned trial judge did not consider the affidavit evidence before him, for if he had considered it and gave it the attention it deserves, he would not have reached that decision. As a matter of fact, it is the affidavit evidence that he should have dwelt on, rather than the proof of evidence which he dealt with extensively and went into the merit of the case.
In STATE VS AKAA (2002) 10 NWLR (Pt. 774) 157 at 172. The Court of Appeal stated thus;
“In an application for bail, it is the affidavit evidence before it that a Court should dwell on rather than the proof of evidence. In the instance case, the trial Court failed to consider the affidavit and counter affidavit deposed to by the parties. Rather it dwelt extensively on the proof of evidence thereby going into the merit of the case.”

The appellant in the instant case, had deposed to his affidavit at page 465 of the record as follows:
“I have also been in the custody of the EFCC since Wednesday the 27th day of May, 2015 till the date of filing this application after I obediently reported to the office of the EFCC when I received a call from one of the investigating officers to report at their office in Abuja.
I know as a fact that I never breached the conditions of my bail when I was granted administrative bail by the EFCC before I was further detained for several days and before formally charging me to Court.
I know that I neither stuffed any box with newspapers nor colluded with anybody to stuff the box with newspapers. I know as a fact that I have never been convicted of any criminal offence in my life.
I have responsible people who could stand as sureties for me if I was granted bail by this Honourable Court.
I never tempered with the investigation conducted by the EFCC while I was granted administrative bail.
I will regularly come to Court to stand trial in the charge filed against me if I was granted bail by this Honourable Court.
I verily believe all Preliminary investigations have been concluded before filling this charge against me.
I make this solemn declaration conscientiously, believing same to be true and in accordance with the Oaths Act.”
The respondent, on the other hand, has also filed a counter affidavit. As I have stated earlier, the leaned trial judge dwelt so much on the proof of evidence which he dealt with extensively thereby ignoring the affidavit evidence by the appellant.
A judicial discretion ought to be founded upon the facts and circumstances presented to the Court, from which it must draw a conclusion governed by law. A discretion must be exercised honestly and in the spirit of the law.
See UNIVERSITY OF LAGOS & ORS VS C.I.O. OLANIYAN (1985) 1 S.C 295 at 344.

It must be borne in mind that the essential difference between an arbitrary or wrongful exercise of discretion, on the one hand, and judicial cum judicious exercise of it on the other is that whereas the former is the exercise of it with either no reason at all or with wrong or insufficient, correct and convincing reason. While judicial and judicious exercise of discretion is acceptable in law, an arbitrary exercise of it is not.
In the final analysis, and as stated earlier on, and from the particulars of the offences charged, the offences are bailable in law, and the learned trial judge ought to have exercised his discretion in favour of the Appellant, in view of the content of the affidavit evidence before him. The Court of Appeal also ought to have looked at that affidavit evidence where the trial Court had failed to do so. The sole issue for determination in this appeal is hereby resolved in favour of the appellant. The appeal is meritorious and it is hereby allowed.
The Appellant is granted bail with a bond to provide two sureties in the sum of N100.000:00k each, and each one of them to submit one title document from any part of Nigeria, to be verified by Chief Registrar Supreme Court.
OLABODE RHODES-VIVOUR, J.S.C.: My lords, I have had the advantage of reading in draft the leading judgment of my learned brother, Bage JSC wherein his lordship granted the appellant bail, despite the refusal by both Courts below. I agree entirely with his lordship reasoning and conclusion.
Appeal allowed.
MARY UKAEGO PETER-ODILI, J.S.C.: I am in total agreement with the judgment just delivered by my learned brother, Sidi Dauda Bage JSC and to register that support, I shall make some remarks.
This is an appeal against the judgment of the Court of Appeal, Ibadan Division or lower Court or Court
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below delivered on the 9th December, 2015. Which affirmed the Ruling of the Federal High Court delivered on 15th June, 2015 wherein the learned trial judge dismissed the appellant’s application for bail on the ground that there were no strong and concrete reasons why the Court could exercise its discretion in favour of the appellant.
The fuller facts leading to this appeal are well captured in the lead judgment and so dispensing of the need to repeat them save for when it becomes necessary to make reference to any part of those facts in the course of this deliberation.
On the 26th October, 2017 date of hearing, learned counsel for the appellant, Ken Ahia adopted the brief of argument settled by Awa U. Kalu SAN and filed on 26th September, 2016 and the reply brief filed on 25th October, 2017 and deemed filed on 26th October, 2017. The learned Senior Advocate identified three issues for determination which are thus:
1. Whether the Court below was correct in all circumstances to have upheld the decision of the trial Court in refusing the appellant bail after finding as it did, that there were ‘Procedural missteps’ taken by the trial Court in reaching its ruling? (Ground 1 and 5).
2. Whether the Court below was correct in accepting as unchallenged paragraphs 9, 11, 12, 13 and 18 contained in respondent’s counter affidavit in opposition to the appellant’s bail application and act on the story set out by the respondent? (Ground 2).
3. Whether the Court below was correct in affirming the decision of the trial Court in the light of the provisions of Sections 158 and 162 of the Administration of Criminal Justice Act, 2015 as well as Sections 36(5) of the Constitution of Federal Republic of Nigeria, 1999 (as amended) Grounds 3 and 4.
Adebisi Adeniyi of counsel for the respondent adopted its brief of argument filed on 23rd October, 2017 and deemed filed on 26th October, 2017. In it, were raised two issues for determination which are as follows:
1. Whether the Court of Appeal was not right in refusing to interfere with the exercise of discretion of the learned trial Judge refusing to admit the appellant to bail rending her trial. (Grounds 2, 3 and 4),
2. Whether the Court of Appeal was not right in holding that the procedure adopted by the learned trial judge in the consideration of the appellant’s application for bail did not occasion any prejudice or miscarriage of justice to warrant the setting aside of the decision of the trial Court. (Grounds 1 & 5)

From the issues as crafted on either side, I see issue one of the appellant as adequate for use in the determination of this appeal and I shall so utilise it.
ISSUE No.1
Whether the Court below was correct in all the circumstances to have upheld the decision of the trial Court in refusing the appellant bail after finding as it did, that there were “procedural missteps” taken by the trial Court in reading its ruling.

Learned counsel for the appellant contended that consolidation of suits or applications is generally made for expediency and convenience such that suits or applications having same and common characteristics of law or facts or arising from common transactions may be heard and determined at the same time in order to avoid multiplicity of actions and to economize time and costs. That it must be stated however that when a Court gives an order to consolidate suits or applications, it automatically creates a duty on itself, which it must discharge and so does not lose sight of the distinct identity of each applicant and his application in relation to other applicants and respective application. That each application remains separate and distinct and its judgment or ruling must be given separately at the end of the common trial. The reasoning being that the consolidation of suits or applications does not render evidence accepted in one evidence in the other. He cited Dugbo v Kporoaro (1958) SCNLR 180; Diab Nasr v Complete Home Enterprises (Nig.) Ltd (1977) 5 SC 1 e.t.c.

That it is for the principle above that in this instance, the trial Court erred when it fused the applications and delivered a single ruling in respect of all applications and in doing so failed to consider the affidavit and further affidavit of the appellant before refusing her bail application.
Learned counsel for the appellant contended that it is not the decision that matters but the procedure adopted in reaching the decision which is flawed as it raised the issue of a lack of fair hearing. That since the right to fair hearing of the appellant was compromised the decision cannot be sustained. He cited Inogha Mfa & Ors v Mfa Inongha (2014) LPELR 22010 (SC) per Kekere – Ekun JSC.
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For the appellant, Learned Senior Counsel stated that the major criterion for granting bail is for the accused to attend his/her trial and it is on this criterion that all other reasons hang. He cited Adamu Suleman & Anor v COP, Plateau State (2008)- LPELR-3126 SC (pt. 21).
Learned counsel for the respondent submitted that the appeal is against the concurrent findings of facts of both the Federal High Court and Court of Appeal on the ground that the appellant is not entitled to bail having regard to the materials presented before the Court and in line with the attitude of the Supreme Court over the years, this Court should not interfere with those findings being not perverse. He referred to Sobakin v State (1981) 5 SC 375; University of Lagos v Olaniyan (No. 1) (1985) 1 NWLR (pt.1)156 at 163; Minister. P.M.R v E.L. (Nig) Ltd (2010) 12 NWLR (pt. 1208) 261 at 292.
What is at play is the issue of what a Court must do when it consolidates suits and what it entails when an order of consolidation is made. A journey back in time into the facts of this case would assist and that is, that the learned trial judge on the 9th day of June, 2015 consolidated the applications for bail of all the defendants including the herein appellant and heard then. It is necessary to state that it is permissible in law to consolidate suits or applications so as to get a speedy resolution of the nagging issues and possibly remove bottlenecks or handles that might impede the main suit which would not happen where the applications and suits are to be handled separately. To get to the decision to order consolidation, the Court gets to that position satisfied that there are common questions of law or facts arising in both or all the causes or matters or even the rights to relief which are claimed in respect of or arise out of the same transactions or for some other reasons in which it makes it desirable to make an order under the rules of Court. Therefore consolidation so to speak of suits or applications is generally made for expediency and convenience such that those suits or applications having same common characteristics of law or facts or stemming from a common transaction may be heard and determined at the same time in order to avoid multiplicity of actions and to economize time and costs.
To embark on consolidation of suits or applications, the Court doing so has a bounden duty which it must discharge and that is, that each of the suits or applications must be resolved in their individual or distinct identity in that common trial. In other words, consolidation does not take away the separate identity of a particular suit or application within that grouping. Also evidence accepted in one suit or application is not evidence in any of the others. This scenario the Court must bear in mind and in sight throughout, from the beginning of the consolidation till the conclusion at the judgment stage or ruling Point. I refer to Dugbo v Kporoaro (1958) SCNLR 180; Diab Nasr v Complete Home Enterprises (Nig) Ltd (1977) 5 SC 1; Iloabuchi v Ebigbo(2000) 8 NWLR (Pt. 668) 197.

The guiding principle above stated, it turned out that in the case in hand the trial Court fused the applications and delivered a single ruling in respect of all six applications. In this error, the learned trial judge failed to consider the affidavit and further affidavit of the appellant before rejecting her bail application and this happened because that Court missed its way and referred to what was not in the affidavit of the appellant and the counter affidavit against the application. Also entered into submissions that were non-existent as counsel for the appellant made no such. The circumstances that arose showed that the Court of first instance having jumbled all the applications and treating them as one utilised facts or evidence that had no relationship or relevant to specific application of the appellant. The fall out therefore is that the right of fair hearing of the appellant had been clearly breached and the correctness of the decision was neither here nor there. This is because the proceedings having been fundamentally flawed on account of this failure to adhere to the rule of natural justice
The dictum of my learned brother, Kekere-Ekun JCS in Inogha Mfa & Ors v Mfa Inongha (2014) LPELR-22010 (SC) is apt for my use and I follow it. He stated thus:
“It is also well settled that any proceedings conducted in breach of a party’s right to fairhearing jeopardised the proceedings and nothing could come out of it.
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Any hearing, no matter how well conducted would be rendered a nullity. See Tsokwa Motors (Nig) Ltd v U.B.A Plc (2008) ALL FWLR (pt. 403) 1240 @1255 A-B; Adigun v A.G. Oyo State (1987) 1 NWLR (Pt. 53) 674; Okafor v A.G. Anambra State (1991) 3 NWLR (pt. 200) 59; Leaders & Co. Ltd. v Bamaiyi (2010) 18 NWLR (Pt. 1225) 329. It was held in recent decision of this Court in Abubakar Audu v FRN (2013) 53 NSCOR 456 @ 4691; “The law is indeed well settled that fair hearing within the meaning of Section 36(1) of the Constitution of Federal Republic of Nigeria, 1999, means a trial or hearing conducted according to all legal rules formulated to ensure that justice is done to the parties. It requires the observation or observance of the twin pillars of the rules of natural justice, namely audi alteram partem and nemo judex in causa sua. These rules, the obligation to hear the other side of a dispute or the right of a party in dispute to be heard, is so basic and fundamental a principle of our adjudicatory system in the determination of disputes that it cannot be compromised on any ground. See Nwokoro v Onuma (1990) 3 NWLR (Pt.136) 22.
The effect of a denial of fair hearing is trite in law. In order words, once there is a breach of the right of fair hearing, the whole proceeding in the course of which the breach occurred and the decision arrived at by the Court becomes a nullity.”

The situation is well cut out and clearly with the proceedings that have come unhinged, the decision of the trial Court has nothing to hang on and so the Court of Appeal was wrong to have sustained that flawed decision.
In the light of the foregoing and the better reasoning in the lead judgment, I also allow the appeal and abide by the consequential orders made.
CLARA BATA OGUNBIYI, J.S.C.: The facts of this case have been spelt out clearly in the lead judgment. The appellant is seeking bail before conviction. The determining factor is whether the appellant will avail himself for trial if bail is granted him.
It is trite law that the granting of bail in such situation is not a matter of course but is at the discretion of the Court having regard to the circumstance of the case before it.
My learned brother, Bage, JSC had dealt adequately with the case at hand and I have no reason to decide otherwise. I therefore adopt his judgment as mine and also resolve the sole issue raised in favour of the appellant.
The appeal has merit and is allowed. I hereby grant bail in terms of the lead judgment of my learned brother.
AMIRU SANUSI, J.S.C.: This appeal is against the judgment of the Court of Appeal, Ibadan division (lower Court), delivered on 9th December, 2015. In the said judgment, the lower Court affirmed the decision of Federal High Court Ibadan (trial Court) delivered on 15th day of June, 2015 which refused to admit the appellant, then applicant to bail.
The appellant as applicant at the trial Court was along with her four other colleagues arraigned before the trial Court on various allegations of crimes as adumbrated in the lead judgment. After pleading not guilty to each of the five counts, the appellant applied for bail. At the close of arguments by counsel on the application, the learned trial judge refused to grant her bail, and instead, ordered accelerated hearing.
Aggrieved by the trial Court’s refusal to admit her to bail, she appealed to the lower Court which endorsed and affirmed the Ruling of the trial Court refusing the bail. She again became disenchanted with the lower Court’s refusal to admit her to bail and then further appealed to this Court.
Briefs of argument were filed and exchanged by learned counsel to the parties. In the appellant’s brief of argument settled by Awa Uwa Kalu SAN, three issues were raised for the determination of the appeal, whereas Mr. Adebisi Adeniyi of learned counsel for the respondent had in his respondent’s brief identified two issues for the determination of this appeal. As both sets of issues had been set out in the lead judgment. I feel it will be repetitive to reproduce them here again.
Considering the circumstance of this case, I feel the germane issue calling for determination in this appeal is simply whether the lower Court acted rightly by refusing to interfere with the decision of the trial Court in refusing to admit the present appellant to bail or to put it in another way, whether the refusal to exercise the discretion to grant bail to the accused/applicant, (now appellant) by the trial Court, was correctly affirmed by the lower Court.
Section 158 of the Administration of Criminal Justice Act 2015 provides as follows:
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“When a person who is suspected to have committed an offence or is accused of an offence is arrested or detained, or appears or is brought before a Court, he shall, subject to the provisions of this Act, be entitled to bail.”
The above provision appear to be in tandem with the provisions of Section 118(2) of the Criminal Procedure Act which states that person charged with a felony other than a felony punishable with death, could be admitted to bail. There is no gain stating that the offence the appellant was facing trial on, is certainly not one attracting death punishment. With the use of the article “shall” in Section 158 of the Administration of Criminal Justice Act 2015, that presupposes that the appellant is mandatorily entitled to be granted bail by the Court right from the out set. Again, Section 162 of the same Act provides that where the offence which an applicant/accused is facing trial on or accused of committing exceeds three years punishment, as in this instant case, he shall still be admitted to bail except on some specified circumstances spelt out in Paragraphs (a) – (f) of the said sections, namely:
(a) If there is reasonable ground that the accused will commit another offence or offences.
(b) Whether he will evade trial;
(c) Whether he will influence, with influence, interfere with, intimidate witnesses and or interfere with the investigation of the case.
(d) attempt to destroy evidence,
(e) prejudice the investigation of the offence; or
(f) he will undermine or jeopardize the objective, purpose or function of criminal justice administration including bail system.
Notwithstanding the above listed conditions, the Courts are still given discretionary powers to grant or refuse bail under Section 163 of the Act. It must however be emphasized that the Bench mark of the exercise of discretion by Courts is that the decision to use discretionary powers must be exercised judiciously and judicially too. See Bamaiyi v The State (2001) 3 NWLR (pt. 715) 230; Dantata vs COP (1958) NRNLR 3 Or (2001) 4 SC NJI 126.
Thus, from the cumulative effect of the above provisions of the Act and of course, the Criminal Procedure Act, in exercising the discretion to grant bail to an applicant, the Court has a duty to consider the nature of the charge, the severity of the punishment, the character of the evidence, the applicant’s criminal record as well as the likelihood of him repeating the offence and including all the elements mentioned in Section 162 of the Act as stated supra. The trite position of the law is that in exercising the discretion to grant or refuse bail, a trial Court must consider the weight of facts deposed to in an affidavit evidence placed before it and all other requirements as highlighted supra. In this instant case, the applicant now appellant had in the affidavit sworn to by her, deposed to some far reaching averments (as shown on page 465 of the record) the conditions or requirements of Section 162 which she averred that she would refrain from committing or contravening if granted such bail. Such averments were not in any way controverted or challenged by the learned respondent’s counsel.
It is rather bizarre to note that the learned trial judge based his reason for refusing to grant bail to the applicant/appellant not on the affidavit evidence, but he merely dwelt on the proof of evidence and totally ignoring to consider the averments which are crucial and relevant for exercising his discretion whether or not to grant the bail application.
If he had duly examined, assessed and evaluated such affidavit evidence placed on his table, he would have arrived at a different conclusion.
The lower Court on its part had unfortunately, failed to advert its mind to or consider the averments in the applicant’s affidavit before affirming and endorsing the trial Court’s decision refusing to grant the bail. It merely glossed it over. I must say that there were justifiable reasons placed before the lower Court to warrant its querying, disturbing or tampering with the trial judges exercise of judicial discretion in refusing the application before him in this case.
Apropos of the above, I also see merit in this appeal. It is meritorious and is accordingly allowed by me. I am at one with the reasoning and conclusion arrived at by my learned brother Sidi Bage, JSC for allowing this appeal.
I abide by the consequential orders made in the lead judgment.

They were arraigned on the 14th day of October, 2010 before the High Court Sapele Judicial Division.
The plea of each of the accused Persons was taken and they were also granted bail on the some day (Pages 137 – 139 of the Records are in reference).
By a motion dated the 5th of November, 2011, the 1st and 2nd Respondents applied to the lower Court for the quashing of counts 1, 2, 7, 8, 9 and 10 and the statement of offence in the information on the grounds set out on the motion paper. (The motion on Notice/Preliminary Objection is at pages 82 – 90 of the Records). This application was however withdrawn and struck out during the proceedings of the 29th of November, 2011 (see proceedings at pages 140 – 141 of the Records).
By another application dated 16th day of August, 2011 but filed on the 29th day of August, 2011 the 1st and 2nd Respondents applied to the trial Court and prayed as follows:
“AN ORDER of this Honourable Court dismissing/striking out this charge or otherwise quashing same on the ground that this Honourable Court lacks the requisite jurisdiction to try the offence as contained in the charge sheet in view of the provisions of SECTIONS 129(1)(A), 132(1)(B) and (C) OF THE DELTA STATE LOCAL GOVERNMENT LAW OF 2004 AND SECTION 64 OF THE CPL.”

The said application was predicated on 8 grounds and supported by a 15 paragraphs affidavit deposed to by the 2nd Respondent and the thrust of which was that the Lower court lacked the requisite jurisdiction to sit over the charge, since all the offences alleged in the charge consist of electoral offences contained in the Delta state Local Government Law of 2004. (The preliminary Objection/ Motion on Notice, Affidavit and Written Submission are at pages 105 – 122 of the Records).
On the 29th day of November, 2011, the trial Court took argument on the said application and delivered a Ruling on the 21st day of February, 2012 wherein the said application was dismissed. The 1st and 2nd Respondents thereafter approached the Lower Court vide two Notices of Appeal on the 5th day of March, 2012. Both Notices contain only one ground.
An application by the 1st and 2nd Respondents, to consolidate the two Notices of appeal, to amend the notices and argue additional grounds of appeal as well as to raise fresh issue on appeal, was heard and granted in chambers.
The lower Court delivered its judgment on the 11th day of December, 2013 and allowed the appeal. This appeal herein therefore is against the said decision of the lower Court.
The Notice of appeal was filed at the lower Court on the 21st day of February. 2014. It was dated the same day (see pages 313 – 316 of the Record of Appeal).
In accordance with Rules of Court, Briefs of Argument were filed by both Parties:
1) Appellant’s Brief of Argument was settled by one Enosa Omoghibo Esq. and filed on 16/10/14.
2) 1st and 2nd Respondents’ Brief of Argument was settled by one A. M. Kotoye Esq., and filed on 2/7/15.
3) Appellant’s Reply Brief of Argument was settled also by his counsel Enosa Omoghibo and filed on 21/3/15.
On the 5th October, 2017, at the hearing of the appeal, Mr. E. Omoghibo represented the Appellant while A. M. Kotoye Esq. appeared for all the Respondents.
The learned counsel on behalf of the respondents applied to withdraw their preliminary objection filed 2/7/15 and same was struck out.
Both counsel representing the parties adopted and relied on their respective briefs of argument. While the appellant’s counsel moved the Court to allow the appeal, a verdict of dismissal was sought for on behalf of the respondents.

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The two issues formulated by the appellant for determination are as follows:
1) Whether having regard to the facts and circumstances that councillorship elections did not hold on the 10th day of May, 2008 in Uzere ward 06, Isoko South Local Government Council, Delta State the jurisdiction of the Magistrate’s Court of Delta State to hear and determine electoral offences as provided under the Local Government Law CAP D27, Laws of Delta State 2004 has been invoked.
2) Whether the accused persons cannot be validly tried under the provisions of the Corrupt Practices & Other Related Offences Act 2000 having regard to the facts and circumstances that Councillorship elections did not hold on the 10th day of May, 2008 in Uzere ward 06, Isoko South Local Government Council, Delta State and yet someone was issued a certificate of return and sworn in.
On behalf of the respondents, the lone issue raised was as following:
Whether or not the lower Court was right, when it set aside the Ruling of G. B. Briki-Okolosi delivered on 21/02/12, on the ground that the trial Court “is devoid of jurisdiction” to try and determine the charge in view of the express and unequivocal provisions of Sections 132(1)(b) (c) and 129(1)(a) of the Delta State Local Government Law CAP D27, Laws of Delta State, 2006.
The issue raised by the Respondents is in tandem with the Appellant’s first issue which relates to question of jurisdiction.
I seek to state straight away that the fulcrum of the appeal herein centers around the issue of jurisdiction; that is to say, the competence of the lower Court to entertain and determine the information (charge) preferred against the respondents. The issue of jurisdiction is well founded and cannot be underrated. It is the foundational life wire of adjudication. No Court can function without jurisdiction. It is a constitutional matter. Several judicial authorities are numerous and trite on this point.
The main issue therefore is:-
Whether the lower Court had jurisdiction to preside over the charge in view of the fact that the alleged offences took place in the course of an election and in view of the provisions of Sections 132 (1)(b) (c) and 129(1) of the Delta State Local Government Law 2004, Cap D27 Laws of Delta State, 2008.

It is submitted by the appellant’s counsel that the lower Court erred in Law and thereby occasioned a miscarriage of justice when it held that the Magistrate’s Court of Delta State has the exclusive jurisdiction under the Local Government Law Cap D27, 2004 to try and determine the case in question. Counsel argues further that the learned Justices of the Court of Appeal totally misconceived the charges brought against the accused persons by the ICPC.
The learned counsel related to Section 132(1) of the Delta State Local Government Law 2004 and submits that the jurisdiction of the said Electoral Tribunal to adjudicate on electoral matters flows from an actual election dully conducted; in other words, there must be electoral materials distributed to the various polling booths/units, the octal vote cast by the voters, collation of the vote casts and the declaration of a winner. The learned counsel contends further that unless and until the actual conduct of elections, the jurisdiction of the Tribunal and the Magistrate Court of Delta State cannot be invoked. While drawing attention to paragraph 132(1)(b), the learned counsel argues that something can only be voided if that thing has happened or if it has been that one cannot void that which is not or has not been; that election was never held in Uzere ward 06 of Isoko South Local Government Area of Delta State on the 10th of May, 2008 or at any time before or after. If there was no election, counsel argues, then there will be no basis to invoke the jurisdiction of the Tribunal or that of the Magistrate Court of Delta State.
The onus is on the prosecution, learned counsel submits, to establish during trial that this position was the state of affairs on the 10th day of May, 2008 when the materials that would have been used for the conduct of the elections were returned to the Oleh Police Station from where the commission’s operatives recovered them: that there was no such conduct of any Councillorship election on the 10th day of May, 2008 in Uzere Ward 06, Isoko South Local Government Council, Delta State as the election never held; that all that happened before and until the morning of the 10th of May, 2008 in Uzere Ward 06, Isoko South Local Government Council, Delta State were mere preparations for Councillorship elections which did not hold. In other words, that the condition precedent for the

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coming into effect of the said Law was never fulfilled. Counsel cites in support the Court of Appeal case of I.N.E.C V. Action Congress (2009) 2 NWLR (Pt 1126) p.524 @ 588 – 589 on what is on election. Further reference was also made to the decision of this Court in the case ofAgbakoba V. I.N.E.C & 2 Ors (2008) 12 SC (Pt 111) page 171 @ 205.

It is the contention of the appellant’s counsel that his client’s complaint was not contesting the votes cast, but rather that the election never held. Reference was made also to the reasoning held by his Lordship Niki Tobi, JSC (of blessed memory) at page 60 of the case of Odedo V I.N.E.C (2008) 7 5C Page 25.

Counsel submits finally that in the absence of any election held, the jurisdiction of the Elections Petitions Tribunal for that Elections and the Magistrate Courts of Delta State cannot be invoked since a condition precedent for doing so was not fulfilled, the Court, counsel argues should resolve the issue in favour of the appellant.
The learned Respondents’ counsel in response to the foregoing argument by the appellant’s counsel, refuted the very foundation thereof in totality. Counsel argues in support that given the totality of all the allegations as contained in the statements, particulars of offence and the proof of evidence in support of the charge sheet, the Trial Court lacked the jurisdiction to put them to trial. This is because they are all offences allegedly committed during election and which had been appropriately made a ground for petitioning pursuant to Section 132(1)(B)and 129(1) of Delta State Local Government Law of 2004, Cap D27, Laws of Delta State; that all the allegations against the 1st and 2nd Respondents borders on irregularities as envisaged in Section 132(1) supra. Counsel submits further that it is in the nature of “Corrupt practice/Irregularity” upon which on election may be questioned. Such allegations, he contends, are quasi-criminal in nature and it is the Tribunal set up under Section 129(1) (supra) that have jurisdiction to adjudicate on the allegations as contained in the charge sheet under reference and not the lower Court.
The learned counsel related to a number of decided authorities in terms of Obi-Odu V. Duke & 2, 339 Ors (2006) 21 WRN P9.113 @ 159; Aikulola V. Akogwu & 2 Ors (2006) 41 WRN p. 29 @ 82 – 83; Obasanjo & 2 Ors V. Yusuf & Anor (2005) 20 WRN P1 @ 49 and Ogboru V. Ibori (2004) 44 WRN Pg 98 @ 118 – 119.

Counsel re-iterates also that it is immaterial that the allegations border on the commission of a crime because none of the facts contained in the proof of evidence directly linked the 1st and 2nd Respondents herein with any of the allegations. Counsel cites further the case of Buhari & Anor V. Obasanjo & Ors (2005) 50 WRN pg 1 @ 188.

The learned Counsel relates copiously to the Criminal Procedure in Nigeria, Law and Practice, Chapter 13; that the reliance on Section 61(3) of the ICPC Act, 2000 by the learned trial Judge in this instance is unhelpful as it is inapplicable. The learned counsel urges us to discountenance all the arguments advanced on behalf of the appellant. This is because whether the facts of the charge are pre-election or post election, it still does not fall under the purview of the ICPC Act.
Counsel contends further that the learned trial Judge did not read the depositions of the potential witnesses before dismissing the motion seeking to quash the charge.
It is again submitted by learned counsel that the conduct of the election and the alleged offences of the 1st and 2nd Respondents herein being in respect of the Local Government Election in Delta State are covered by the said Delta State Local Government Law 2004, and not by the ICPC Act.
The main plank of the allegations against the Respondent, counsel re-affirms, is that there was ‘no election’ on the said 10th May, 2008 and that none of the potential witnesses mentioned any of the 1st and 2nd Respondents as being part of the process leading to the non holding of the election.
That the appellant’s contention in issue 1 has no support and cannot be sustained therefore.
RESOLUTION OF THE ISSUE
The main plank of the allegations against the Respondents is that there was no election on the said 10th May, 2008.

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Consequently, that the lower Court erred when it set aside the Ruling of the trial Court delivered on 21/2/12 on the ground that it is devoid of any jurisdiction to try and determine the charge “in view of the express and unequivocal provisions of Sections 132(1)(b) (c) and 129(1)(a) of the Delta State Local Government Law, Cap D27, Laws of Delta State.”

It is trite and well settled that jurisdiction is at the threshold of the power of the Court to adjudicate over any matter. It is the authority of the Court to exercise judicial power, to take cognizance and decide on matters presented before it. It is an essential factor in the determination of an action and therefore indispensable to the capacity of the Court to exercise judicial authority. See the following authorities in Ajomale V. Yaduat & Anor (No.1) (2003) FWLR (Pt 182), 1902 @ 1910 SC; The Miscellaneous Offences Tribunal and Anor V. Okoroafor (2001) FWLR (Pt 81) 1730 @ 1748 SC.
It is also trite that whereby the rules of Court or any other rule whatsoever, the unlimited jurisdiction of the Court is curtailed by statute or the Constitution as to subject matter or cause of action or as to person who can bring the action, such curtailment renders the Court incompetent to adjudicate over a matter which has been taken outside its powers by such statute. Therefore, where a Tribunal or special Court is set up to adjudicate over specialized matters, the powers of the normal Courts created under the Constitution will be ousted in respect of such specialized matters.
The Courts have held overtime that where there is a Tribunal set up as special Court under State Law, to adjudicate over specialized matters, the Power of the State High Court which under the Constitution is vested with jurisdiction to hear and determine any civil and criminal proceedings in which the existence or extent of a legal right, power, duty, liability, privilege, interest, obligation, claim or crime is in issue, is ousted. See the case of Chief Emmanuel Osita Okereke V. Alhaji Umaru Musa Yar’Adua (2008) 4 – 5 5C (Pt 1) page 206 @ 238 wherein this Court, per Onnoghen, JSC (as he then was) held thus:
“It is settled Law that where legislation lays down a procedure for doing a thing there should be no other method of doing it.”
See also the case of C.C.B Plc V. The A-G of Anambra State (1992) 10 SCNJ 137 @ 163, also Buhari V. Yusuf(2003) 6 sc (Pt 11) 156.

The reproduction of two stronghold sections predicating the determination of this issue are Sections 132(1)(b)and (c) also 129(1) of Delta State Local Government Law of 2004, Cap D27, Laws of Delta State are as follows:
Section 132(1) says:-
“An election may be questioned on the following ground:
(b) that the election was voided by Corrupt practices, irregularities or offences against this Law: or
(c) that the respondent was not duly elected by a majority of valid or lawful votes cast at the election: or”
Section 129(1):
“There shall be established in the State at least six and at most nine election Tribunals to be known as Local Government Election Tribunals (in this Law referred to individually as an “Election Tribunal”) which shall to the exclusion of any other Tribunal or Court, have original jurisdiction to hear and determine
(a) Election petitions as to whether a person has been validly elected as chairman or councilor of a Local Government Council.” (emphases supplied).
As rightly submitted by the learned counsel representing the respondents, it is clear that from the facts of the Charge as contained in the statement and particulars of offence as well as the proof of evidence in support thereof , all the allegations against the 1st and 2nd Respondents border on irregularities as envisaged in Section 132(1) reproduced (supra). It is all in the nature of “corrupt practice/irregularity” upon which on election may be questioned. Such allegations are quasi-criminal in nature and it is the Tribunal set up under Section 129(1) (supra) that have jurisdiction to adjudicate on the allegations as contained in the charge sheet under reference. Several authorities were cited in support by the learned counsel for the respondents.
The Law is trite and well settled that no litigant can confer jurisdiction on any Court where the Constitution or a statute or any provision of the Common Law says that the Court shall have no jurisdiction. See Jikantoro & 6 Ors. V. Dantoro & 5 Ors (2004) 5 SC (Pt 2) page 1 @ 21.
It is in evidence, clearly on the record that the complains relates to the conduct of elections into the Councillorship seat of Uzere Word in Isoko South Local Government of Delta State which held on the 10th of May, 2008 in which the 2nd Respondent was declared the winner.
The petition which formed the basis of the investigation and pursuant to which the charge at the trial Court was filed is

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at page 19 of the record and it is dated 19th of May, 2008. Reference to the said page is self explanatory wherein the petition relates to:-
“A FRADULENT ACT PERPETRATED BY MR. UTHO DSIEC OFFICIAL.” (SIC)
In summary, the complaint against Mr. Utho alleges that he collected sums of money from “influential individuals”, and it borders on electoral issues/irregularities.
Mr. Bernard Utho the man in the eye of the storm, also made statements at pages 39 – 46 of the record, and which border on electoral malpractice/irregularity which occurred during the conduct of the said election. With reference made to the case of Obasanjo & 2 Ors V. Yusuf & Anor (2005) 20 WRN page 1 @ 86 this Court held and said:
“Complaints against the conduct of election can only be found in the Electoral Act, as the Act provides breaches in the conduct of elections. The Electoral Act is a comprehensive Act which deals with the conduct of elections in this country. The Courts are bound to look into the Act in cases of breach in the conduct of elections.”
The Delta State Local Government Law Cap D27, 2004 was enacted pursuant to Section 7(1) of the Constitution of the Federal Republic of Nigeria, 1999 as amended, which says:
“7. The system of Local government by democratically elected Local Government councils is under this Constitution guaranteed; and accordingly, the Government of every State shall subject to section of this Constitution, ensure their existence under a law which provides for the establishment structure composition, finance and functions of such councils.”
What is more, under the Second Schedule, Part II (The Concurrent Legislative List) of the 1999 Constitution, it is provided by paragraph 12 thus:-
“Nothing in paragraph 11 hereof shall preclude a House of Assembly from making Laws with respect to election to a local government council in addition to but not in consistent with any law made by the National Assembly.”
In the instant case, the Delta State Local Government Law (supra) has by the provision of Sections 107 – 128 thereof, conferred special powers on Magistrate’s Courts in the State to try (Local Government) electoral offences. Consequently, the High Court lacks the jurisdictional competence to try the offences prescribed under Section 107 – 128 of the Law supra.
Undoubtedly, the High Court’s jurisdiction is as regards appeals from the decisions of the trial Magistrate’s Courts in the State. The appellate and supervisory powers of the High Court over and above the Magistrate’s Courts are very well taken.
The Law is well settled that where a particular Court or Tribunal has been specifically conferred with a special power to adjudicate upon a matter or action, as in the instant case, it’s not the business of any other Court or Tribunal which lacks such express power to arrogate to itself the power to entertain such a matter or action. See Enagi V. Inuwa (1992) 3 NWLR (Pt 231) 548 @ 565.
With the criminal allegations arising from the conduct of the Local Government Election in question, the provisions of the Local Government Law (supra) pertaining to elections, especially Sections 107 – 128 thereof ought to be strictly applied. See Njo V. Yussuf (2005) 20 WRN 1 @ 86.
Notwithstanding that the information (charge) was filed against the appellant pursuant to the ICPC Act, the Magistrate’s Court of Delta State has the exclusive jurisdiction under the Local Government Law Cap D27 2004 (supra) to try and determine the case in question. See Utih V. Onoyivwe(1991) 1 SC (Pt 1) 61: Obi V. INEC (2007) SC 268 @ 301.
For the purpose of exercising jurisdiction thereof, the Court has an onerous duty to be properly seized of the matter before it. See Madukolu V. Nkemdilim (1962) 1 All NLR 587 @ 594 and Obasanjo V. Yusuf (2005) 20 WRN (Vol 2) 1 wherein this Court said:
Jurisdiction is a very hard matter of law which is donated by the Constitution and the enabling statute. It is also a very sensitive matter in the judicial process. Considering its very hard and sensitive nature, Courts of law must always bow to the provisions of the Constitution and the enabling statute. On no account should we remove from a Court which has jurisdiction to hear a matter to another Court which has no jurisdiction to hear it.” Per Niki Tobi, JSC (of blessed memory) at page 90. The High Court is devoid of jurisdiction to try and determine the instant case in view of the express and unequivocal provisions of the Delta State Local Government Law (supra).
Section 129(1) of the Local Government Law (supra) established the Local Government Electoral Tribunal; while Section 132(1) states the ground upon which an election may be questioned. One of the grounds is as contained in S.132(1)(b) supra. Therefore, complaints against any wrong doings, malpractice or corrupt practice which occurred during the elections held on the 10th of May, 2008 in Uzere Ward can only be heard at the Tribunal established pursuant to Section 129(1) (supra). Again see Obasanjo & Anor V. Yusuf & Anor (2004) 5 SC (pt 1) pg 27 @ 50. Any provision in the ICPC Act

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which tend to confer jurisdiction on the trial Court contrary to the provision of the Constitution is null and void and of no effect whatsoever; as rightly submitted by the learned counsel for the respondents.
The said issue is resolved in the positive and against the appellant herein. In other words, the lower Court was right when it set aside the Ruling by G. B. Briki – Okolosi, delivered on 21/2/12 on the ground that “the Trial Court is devoid of jurisdiction” to try and determine the charge in view of the express and unequivocal provisions of Sections 132(1)(b) (c) and 129(1)(a) of the Delta State Local Government Law, Cap D27, Laws of Delta State.
The appeal is dismissed on the totality while the judgment of the lower Court delivered on the 11th Day of December, 2013 is affirmed by me.
OLABODE RHODES-VIVOUR, J.S.C.: I have had the advantage of reading in draft the leading judgment delivered by my learned brother, Ogunbiyi, JSC and I entirely agree that this appeal should be dismissed.
It is hereby also dismissed by me.
MARY UKAEGO PETER-ODILI, J.S.C.: I agree with the judgment just delivered by my learned brother, Clara Bata Ogunbiyi JSC and to underscore that support, I shall make some remarks.
This is an appeal from the Court of Appeal or Court below, Benin Division which set aside the Ruling of the G. B. Briki-Okolosi J., of the High Court, Delta State sitting at Asaba delivered on the 21st day of February 2012 refusing to quash the information preferred against the accused persons.
Dissatisfied with the said judgment of the Court of Appeal, the respondent filed a Notice of Appeal filed on 21st February 2014.
FACTS BRIEFLY STATED
On the 14th day of October, 2010, the three accused persons were arraigned before his Lordship, Hon. Justice G. B. Briki – Okolosi of the Delta State High Court of Justice, then sitting at Sapele, Delta State on a ten-count charge brought against them by the Independent Corrupt Practices and Other Related Offences Commission (ICPC). The charges were read to them and they all entered a plea of not guilty.
On the 11th day of November, 2010, the next adjourned date, counsel to the 2nd and 3rd accused persons filed and served on the prosecution a motion on Notice asking the Court to quash the counts in the information against the 2nd and 3rd accused persons on the grounds that the offences are not disclosed in the statement of offences and the proof of evidence attached and that no prima facie case is disclosed in the proof of evidence against the 2nd and 3rd accused persons.
After several adjournments, counsel to the 1st accused person also filed and served on the prosecution on the 12th day of April, 2011 a Notice of Preliminary objection asking his Lordship to quash the counts in the information against the 1st accused person on the ground that the charge is incompetent and that the lower Court lacks the jurisdiction to entertain the matter.
In opposition to the motion to quash the charges filed against the 2nd and 3rd accused persons and the preliminary objection asking the lower Court to quash the charges filed against the 1st accused person in this criminal trial, prosecution filed a six-paragraph counter-affidavit on the 13th day of January, 2011 and another 10-paragraph counter-affidavit on the 12th day of February, 2011 respectively.
Upon agreement of counsel, the learned trial Judge ordered written addresses in lieu of oral submissions. The written arguments were adopted on the 29th day of November, 2011. Thereafter, the learned trial Judge adjourned ruling for the 21st of February,2012.
The Ruling of the trial Judge delivered on February, 2012, in a well considered ruling, the learned trial Judge dismissed the preliminary objection

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and refused the application to quash the charge against the accused persons.
Dissatisfied with the decision of the trial Judge, the 2nd and 3rd defendants filed separate Notices of Appeal dated March 5, 2012 consolidated by order of the Court of Appeal on the 21st day of February, 2013 and another amended Notice of Appeal dated March 11th, 2013. The appellant’s Brief of Argument dated the 13th day of March 2013 was filed on the 19th day of March, 2013. The Respondent’s Brief was filed on the 24th day of April, 2013.
The briefs were adopted by the parties and the Court of Appeal delivered its judgment on Wednesday the 11th day of December, 2013. In its judgment, the Court of Appeal held amongst others thus:
“Notwithstanding, the fact that the information (charge) was filed against the appellants pursuant to the ICPC Act, I am of the considered view that the Magistrate’s Court of Delta State has the exclusive jurisdiction under the Local Government Law Cap. D27, 2004 (supra) to try and determine the case in question.”

On the 5th day of October, 2017, learned counsel for the appellant, Enosa Omoghibo Esq. adopted the brief of argument of the appellant filed on the 16/10/2014 and deemed filed on the 16/03/2016. In it were distilled two issues for determination which are as follows:
1. Whether having regard to the facts and circumstances that councillorship elections did not hold on the 10th day of May, 2008 in Uzere Ward 06, Isoko South Local Government Council, Delta State, the jurisdiction of the Magistrate’s Court of Delta State to hear and determine electoral offences as provided under the Local Government Law CAP.D27, Laws of Delta State 2004 has been invoked.
2. Whether the accused persons cannot be validly tried under the provisions of the Corrupt Practices and Other Related Offences Act 2000 having regard to the facts and circumstances that councillorship elections did not hold on the 10th day of May, 2008 in Uzere Ward 06, Isoko South Local Government Council, Delta State and yet someone was issued a certificate of return and sworn in.
He also filed appellant’s reply brief on 21/7/15.
A.M. Kotoye of counsel for the respondents adopted the brief he filed on the 2/7/15. He crafted a single issue, viz:
Whether or not the lower Court was right, when it set aside the Ruling of G. B. Briki-Okofosi delivered on 21/02/2, on the ground that the trial Court is devoid of jurisdiction” to try and determine the charge in view of the express and unequivocal provisions of Sections 132(1)(b) (c) and 129 (1) (a) of the Delta State Local Government Law CAP D27, Laws of Delta State, 2006.

The sole issue so drafted by the respondent is apt and I shall utilise it in the determination this appeal.
The learned counsel for the appellant, Enosa Omoghibo contended that the Court below misconceived the charges brought against the accused persons by the ICPC that Section 97 of the Delta State Local Government Law 2004 provides that the Delta State Independent Electoral commission shall conduct local government elections subject to any Act of the National Assembly providing for election matters according to the provisions of the said law. That Sections 107 – 47 created various Electoral offences triable in the Magistrate’s Court by the Attorney-General of the State or the police as is provided in Section 128 while Section 129 establishes the Election Tribunal. That Section 132 set out the grounds for questioning an election in the context above.
For the appellant, it was submitted that unless and until the actual conduct of elections, the jurisdiction of the Tribunal and Magistrate Court of Delta State cannot be invoked and in this case at hand elections never held nor was there any election conducted in Uzere Ward 06 of Isoko South Local Government Area on the 10th of May, 2008 or at anytime before or after. That if there was election then there will be basis to invoke the jurisdiction of earlier the Tribunal or the Magistrate Court of Delta State.
He stated that the condition precedent for the invocation of the jurisdiction of the Magistrate Court was not fulfilled. He cited INEC v Action Congress (2009) 2 NWLR (Pt. 1126) 524 at 588-589 for the definition of an election. Also Agbakoba v INEC & 2 Ors (2008) 12 Sc (Pt. 111); Odedo v INEC (2008) 7 SC 25.

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Going on further, learned counsel for the appellant submitted that the complainant and the Independent Corrupt Practices and other Related Offences Commission (ICPC) are concerned about how the 3rd accused person was sworn in to hold an elective position for which no election was conducted. That it is for this reason that the ICPC brought charges not under the Delta State Local Government Law 2004, but the ICPC Act 2000 as observed by the learned trial judge. That all the counts with the exception of count 6 were brought under the said Act while count 6 was under Section 104 of the Criminal Code Act, Cap C38, Laws of the Federation 2004 which are all extant laws. That the trial judge was right to hold he had jurisdiction to try the offences charged.
Mr. Omoghibo of counsel for the appellant contended that the Court of Appeal erred in setting aside what the trial Court did and the Supreme Court should allow the appeal and order that the accused persons face their trial. He cited A. G. Ondo v A. G. Federation (2002) 9 NWLR (Pt. 772) 222; Bello v A. G. Oyo State (1986) NWLR (Pt. 4) 825.
A. M. Kotoye Esq. of counsel for the respondent contended that it is trite that jurisdiction is at the threshold of the power of the Court to adjudicate over any matter and it is the authority of the Court to exercise judicial power, to take cognizance and decide on matters presented before it. That it is an essential fact in the determination of an action and indispensable to the capacity of the Court to exercise the judicial authority. He cited Ajomale v Yaduat & Anor. (No 1) (2003) FWLR (Pt. 182) 1902 at 1910;Miscellaneous Offences Tribunal & Anor. v Okoroafor (2001) FWLR (Pt. 81) 1730 at 1748.

For the respondent, it was contended further that it is trite that whereby the rules of Court or any other rules, the unlimited jurisdiction of the Court is curtailed by statute or the Constitution as to subject matter or cause of action or as to person who can bring the action, such curtailment renders the Court incompetent to adjudicate over a matter which has been taken outside its powers by such statute. That where a Tribunal or special Court is set up to adjudicate over specialized matters, the powers of the normal Courts created under the Constitution will be ousted in respect of such specialized Courts and so happened in this instance. He referred to Okereke V Yar’dua (2008) 4 – 5 Sc (Pt 1) 206 at 238; C. C. B. Plc v. A. G. of Anambra State (1992) 10 SC 137 at 163; Buhari v Yusuf (2003) 6 SC (Pt.11) 156.
That no litigation can confer jurisdiction on any Court where the Cnstitution or a statute or any provision of the common law says that the Court has no jurisdiction. He cited Jikantoro & 6 Ors v. Dantoro & 5 Ors (2004) 5 SC (pt. 2) page 1 at 21.

The appellant also contended that the allegations in issue bordered on the commission of crime which fact is immaterial because none of the facts in the proof of evidence directly linked the 1st and 2nd respondents nor were they mentioned in the statements of the witnesses. Also that the fact that the charge was brought under the ICPC Act is immaterial because the Act being a statute of parliaments cannot override a constitutional provision which had declined the trial Court cannot exercise jurisdiction on complaints arising from the conduct of an erection. He cited Utih v Onoyivwe (1991) 1 SC (pt. 1) 61; Peter Obi v INEC & 6 Ors. (2007) SC. 268 at 301.

The plank on which this appeal is standing is that the appellant is inviting the Supreme Court to allow the appeal in the interest of justice as a criminal offence had occurred and the Court should not be hampered by the fact that no election took place though an election was to be conducted and it was in the course of such anticipation that the criminal offence took place and the Court should not shy away from the remedial process of righting the wrong done.
The attack by the respondent to that reasoning of the appellant is that there being no jurisdiction in the Court of trial and along the way the appellate Courts that there is nothing anyone can do about it.
It has now assumed the position of immutability that jurisdiction is at the threshold of the power of a Court to adjudicate over a matter and while it is within the authority or power of the Court to exercise judicial power, it has to do so mindful of whether it has the power to enter into the suit or appeal placed before it. That is a first hurdle and there is no running away from it. Though a Court cannot ignore an illegality in any matter, it has to have the necessary vires to be properly seized of the matter to proceed however odious or reprehensible the presentation of the criminal activity may be. See Madukolu v Nkemdilim (2001) 46 WRN 1 Obasanjo v Yusuf (2005) 20 WRN (Vol. 2) 1.

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For a fuller understanding, it is trite that where the rules of Court or any other rules whatever have curtailed an otherwise unlimited jurisdiction of a Court and this can be by a specific statute or even the Constitution as to the subject matter or cause of action or as to the person who can bring the action, such curtailment renders the Court incompetent, stripped of its power to adjudicate over the said matter as what has happened is that such a matter is outside the confines of the power of the Court and that limitation has been done by statute or Constitution. It follows that where a Tribunal or special Court is set up to adjudicate over specialized matters, the powers of the regular Courts created under the Constitution will be ousted in respect of such specialised matters.
The Courts including the present one have held time without number that where there is a Tribunal set up as special Court under State Law such as the Delta State Local Government Law of 2004, Cap D.27, Laws of Delta State which is at the foundation of this matter at hand then the State High Court or any other Court needs to pause advisedly since it cannot just assume jurisdiction without being properly so vested. See Chief Emmanuel Osita Okereke v Alhaji Umaru Musa Yar’Adua (2008) 4 – 5 SC (Pt. 1) 206 at 238; Ajomale v Yaduat & Anor. (No 1) (2003) FWLR (Pt. 182) 1902 at 1910; Miscellaneous Offences Tribunal & Anor. v Okoroafor (2001) FWLR (Pt. 81) 1730 at 1748.
I shall quote the relevant sections of the said Delta State Statute for effective clarity and it is thus: Sections 132 (1) (B) (c) and 129(1) of Delta State Local Government Law of 2004, Cap D 27, Laws of Delta State.
Section 132 (1) says:
“An election may be questioned on the following ground:
(b) That the election was voided by corrupt practices, irregularities or offences against this law; or
(c) that the respondent was not duly elected by a majority of valid or lawful votes cast at the election or” Section 129(1):
“There shall be established in the state at least six and at most nine election Tribunals to be known as Local Government Election Tribunals (in this law referred to individually as an “Election Tribunals”) which shall to be exclusion of any other Tribunal or Court, have original jurisdiction to hear and determine
(a) Election petitions as to whether a person has been validly elected as Chairman or Councilor of a Local Government Council.”
It needs be reiterated that no litigant, Court or counsel can confer jurisdiction on any Court where the Constitution or a statute or any provision of the common law has stated that the particular Court has no jurisdiction. The complaint from which the action was commenced relate to the conduct of elections into the councillorship seat of Uzere Ward in Isoko South Local Government of Delta State which was purportedly held on the 10th of May, 2008 in which the 2nd respondents was declared winner. The petition which formed the basis of the investigation and from which the charge was initiated at the Trial High Court was headed, “A FRAUDULENT ACT PERPETRATED BY MR UTHO, THE DISIEC OFFICIAL”.
The cross road came about because Section 128(1) (a) of the Delta State Local Government Law had established a Tribunal to look into infractions emanating from elections conducted within sight of the Delta Law aforementioned which is impari materia to Section 286 (1) of the 1999 Constitution and which Delta law established the Electoral Tribunal for local government elections of Delta State. In the case of Obasanjo & 2 Ors v Yusuf & Anor (2005) 20 WRN page 1 at 86 where complaints such as the present albeit the said complaints were at the Federal Level. This Court stated as follows:
“Complaints against the conduct of election can only be found in the Electoral Act, as the Act provides for breaches in the conduct of elections. The Electoral Act is a comprehensive Act which deals with the conduct of elections in this country. The Courts are bound to look into the Act in cases of breach in the conduct of elections.”
The case above cited Obasanjo & 2 Ors v Yusuf & Anor (supra) is in line with the rock solid principle that jurisdiction cannot be donated nor assumed at will by a Court because the particular Court is confronted by some infractions criminal in content. It is not a matter for sentiments. See Jikantoro & 6 Ors v Dantoro & 5 Ors (2004) 5 SC (Pt. 2) 1 at 21.
Clearly the learned trial Judge did not advise himself that he needed to attend to the matter before him dispassionately in line with the relevant statute as to whether or not he had the jurisdiction or power to entertain

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the matter. It seems being confronted with strong allegations of criminal infractions he felt he needed to apply whatever remedy he could lay his hands on. The Court of Appeal faced with the challenge over that Court of trial ruling assuming jurisdiction had no difficulty in setting down the appropriate guides and having at its disposal the necessary materials and interpreting the statutory provisions stated as follows:
“Thus, it would be strange, in my considered view to proceed to charge the appellant under the ICPC Act (supra) in view of the unequivocal and express provisions of the Delta State Local Government Law, cap D27 Laws of Delta State 2006 (supra).
Indeed, it is long settled principle that where a particular Court or Tribunal has been specifically conferred with a special power to adjudicate upon a matter or action, as in the instant case, it’s not the business of any other Court or Tribunal which lacks such express power to arrogate to itself the power to entertain such a matter or action….
As painstakingly alluded to above, the criminal allegation arose from the conduct of the local government election in question. Thus the provisions of the local government law (supra) Pertaining to election, especially Section 107 – 128 thereof ought to be strictly applied….”
The learned justice of the Court of Appeal, Saulawa JCA stated further, viz:
“In the instant case, its rather obvious that it’s the Magistrate’s Court that has the express original jurisdiction to try the instant case by virtue of the provisions of Delta State Local Government Law Cap, D27 Laws of Delta State 2006 (supra)….
Thus, flowing from the foregoing far reaching postulation, its rather obvious that the lower Court is devoid of jurisdiction to try and determine the instant case, in view of the express and unequivocal provision of the Delta State Local Government Law (supra)….”
There is nothing upon which this Court would go against what the Court below did as indeed Sections 107 to 108of the said Delta State Local Government Law provided for how to deal with offences relating to the election. Section 128(1) provided that an offence committed under such an electoral process is triable in the Magistrate Court of Delta State at the instance of the Attorney General of Delta State any officer in his office or by the Nigerian Police Officer. Therefore the ICPC Act has no field of play in the matters pertaining to the local government electoral processes of Delta State which has fully and properly within its power granted it by the Constitution taken care of such matters.
Indeed and in conclusion the Court below said it as it is and all Courts are minded to stay within its boundary especially where that boundary has been streamlined by a statute which must be respected to avoid interloping confusion that would arise where a particular Court get into the way of another which it ought not to.
I agree with the better and fuller reasoning in the lead judgment that there is no basis to upset what the Court of Appeal did. This appeal lacks merit and I dismiss it.
l abide by the consequential orders made.
AMIRU SANUSI, J.S.C.: I read the advance copy of the leading judgment prepared by my learned brother Ogunbiyi JSC just delivered. Her reading and the conclusion reached are agreeable to me that this appeal is unmeritorious and deserves to be dismissed.
The gamut of this appeal is centred on issue of jurisdiction which is certainly the life wire of every case. Issue of jurisdiction is radically fundamental, as such it can be raised at any time or at any stage of the case even before this Court which is Court of last resort. See Management Enterprise Ltd and Anor vs Jonathan Otusanya (1987) 2 NWLR (pt.55) 179.

The live issue canvassed by the parties learned counsel is whether the lower Court had jurisdiction to enquire into the charge the respondents faced trial on in view of the fact that the offences were allegedly committed in the course of an election, bearing in mind the provisions of Section 132 (1) (b) (c) and Section 129 (1) of the Delta State Local Government Law 2004, Cap D27 Laws of Delta State 2008. The two provisions mentioned above being the catch phrase of the case, shall be reproduced below for ease of reference and clarity.
Section 129 (1) of the law provides, thus:
“An election may be questioned on the following grounds:
(b) That the election was voided by corrupt practices, irregularities or Offences against this law; or
(c) That the respondent was not duly elected by a majority of valid or lawful votes

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cast at the election.
Section 129 (1) states:
“There shall be established in the state at least six at most nine election Tribunals to be known as Local Government Election Tribunals (in the Law referred to individually as an “Election Tribunal”) which shall, to the exclusion of any other Tribunal or Court have original jurisdiction to hear and determine:
(a) Election Petitions as to whether a person has been validly elected as chairman or councilor of a Local Government Council.” Now looking closely at the charge, the first two respondents were to face especially the proof of evidence and particulars of the offence there is no gainsaying that they border on “irregularities” which is one of the grounds upon which an election can be challenged as provided in Section 132 (1) of the Law as reproduced supra. Again, by the wordings of Section 129 of the Law, only the Election Tribunal has exclusive jurisdiction to enquire into such allegation to the exclusion of any Tribunal or Court. The trial High Court therefore lacks jurisdiction to do so. In other words, the jurisdiction of the trial Court is ousted as rightly held by the lower Court. The Delta State Government by virtue of Section 7 of the 1999 Constitution of the Federal Republic of Nigeria as amended, had power to enact the Delta State Local Government Law, Cap D27 of 2004 through its House of Assembly. The said law, therefore had the backing of the 1999 Constitution. Similarly, the said law had donated and conferred special jurisdictional powers on Magistrates throughout the State to entertain and determine electoral offence and had ousted the jurisdiction of the High Court in entertaining and determining such offences. The settled law is that where a special Court is created by an instrument ousting jurisdiction of any conventional Court in specific offences, such conventional Court must relinquish its jurisdiction to give way to the newly established special Court or Tribunal. A good example that comes to ones mind is the creation of Election Tribunals established by the Constitution to handle election petitions/matters and even election appeals in the case of the election of President of the Federal Republic of Nigeria which handles such case as first instance Tribunal. In a nut-shell, all I saying is that the High Court (trial Court) lacks jurisdiction to try and determine the case in view of the provisions of Section 129(1) of the Law.
In the result, I find no merit in this appeal being lacking in merit, I accordingly dismiss it, while endorsing the reasoning and conclusion of my learned brother Ogunbiyi JSC. Appeal dismissed.
SIDI DAUDA BAGE, J.S.C.: I have had the benefit of reading in draft the lead Judgment of my learned brother Clara Bata Ogunbiyi, JSC, just delivered. I agree entirely with the reasoning and conclusion reached. I do not have anything to add. The appeal lacks merit, and it is accordingly dismissed by me. Judgment of the lower Court is hereby affirmed.