Criminal Procedure

Before Their Lordships

Between

AND

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AMINA ADAMU AUGIE, J.S.C. (Delivering the Leading Judgment): This Appeal deals with the issue of plea bargain and double jeopardy, and involves charge No. FHC/EN/6C/2008 filed at the Enugu Division of the Federal High Court in 2008 and Charge No. FHC/B/11C/2011 filed at the Benin Division of the same Federal High Court in 2011.

Before Their Lordships

Between

AND

Before Their Lordships

Between

AND

I. T. MUHAMMAD, J.S.C: My learned brother, M. D. Muhammad, JSC, had made a copy of the judgment just delivered available to me. I am in agreement with him that the appeal has merit and it should be allowed.
My learned brother has, in his judgment, set out clearly the facts and the issues for determination. I need not repeat same here except to say that the first issue formulated by the learned counsel for the appellant is very apt in treating this appeal. The appeal essentially is on the consent of a trial judge for the prosecution to prefer a charge against an accused person or persons.
Where an offence has been committed or is alleged to have been committed in the Northern states of Nigeria or any part including the Federal Capital Territory, Abuja, the governing law is the Criminal procedure Code (CPC) and not the CPA which is applicable in the other parts of the country. Section 185 (b) of the CPC provides:
“No person shall be tried by the High Court unless –
(b) a charge is preferred against him without the holding of a preliminary inquiry by LEAVE OF A JUDGE of the High Court.” (Emphasis and underlining supplied by me).

Whenever and wherever leave of a Judge is to be sought, it means, in my humble understanding, that the statute has conferred on the judge some discretionary powers. Discretion which can hardly be altered.
Rules for the procedure to obtain leave from a judge of a High Court to prefer a charge (Preliminary Inquiry excluded) against a person suspected to have committed a crime have been provided by the criminal Procedure (Application for leave to prefer a charge in the High Court) Rules, 1970. Sub-rule 3 (3) stipulates as follows:
“(1) Every application, other than application made under rule 2, shall be in writing signed by the applicant or his counsel and,
(a) shall be accompanied by the charge in respect of which leave is sought and, unless the application is made by or on behalf of the Attorney-General, shall also be accompanied by an affidavit by the applicant that the statement contained in the application are, to the best of the deponent’s knowledge, information and belief, true, and
(b) shall state whether or not any application has previously been made under chapter XVII of the Criminal Procedure Code, and the result of any such applications or proceedings.
(2) Where no proceedings have been taken under chapter XVII of the Criminal Procedure Code the application shall state the reason why it is desired to prefer a charge without such proceedings having been taken, and
(a) there shall accompany the application proofs of the evidence of the witness whom it is proposed to call in support of the charge; and
(b) the application shall include a statement that the Evidence shown in the proofs will be evidence which will be available at the trial and that the case disclosed by the proofs, to the best of the knowledge, information and belief of the applicant, a true case.
(3) where proceedings have been taken under chapter XVII of the Criminal Procedure Code and the magistrate has refused to commit the accused for trial, the application shall be accompanied by
(a) a copy of the depositions, and
(b) proofs of any evidence which it is proposed to call in support of the charges so far as that evidence is not contained in the depositions, and the application shall include a statement that the evidence shown by the proofs and the evidence shown by the depositions will be available at the trial and that the case disclosed by the dispositions and proofs, is, to the best of the knowledge, information and belief of the applicant, a true case”.
By way of summary, the applicant for leave to prefer a charge, is mandated by the rules to comply with the rule by supporting his application with the following:
(a) the charge in respect of which leave is sought
(b) affidavit by the applicant (if not an Attorney-General or his representative) that the statements contained in the application are true
(c) a statement on whether or not any application has previously been made under these Rules.
(d) a statement on whether or not any proceedings have been under taken under chapter XVII of the CPC, and
(e) the result of such applications or proceedings, if any.
The learned trial judge made the following findings:
“It is clear for the foregoing appraisal that the provision of Rule 3 (2) (a) of the 1970 Rules were complied with in bringing or preferring the charges against the accused persons/applicants. Failure to state a material ingredient of an offence is certainly fatal to the prosecution but that has to be taken at the trial not at the stage of preferring a charge and it is so held. The same reasoning goes for possibility of duplicity. It is also an issue that could be taken as part of the defence of the accused persons at the trial.”
(Underlining supplied by me to emphasise the points raised therein)
Except where stronger reasons prevail or that the findings of a learned trial judge are found to be perverse, the exercise of his discretion is never brought to question by a higher court.
See:
It is the holding of this court in GAJI V. THE STATE (1975) NNLR 98 at page 112 as reprinted (1975) 5 SC 61 at page 83, inter alia, that:
“Judges who exercise the powers of granting leave under the provisions of section 185 (b) at the Criminal Procedure Code should ask for and insist on seeing the proofs of evidence which it is intended to urge in supplied of the prosecution: it is not open at that stage to an accused person to be invited into the scene and moreover to be supported with copies of the statements of potential witnesses.” (Underlining supplied for emphasis).
This holding by the learned trial judge was done (and rightly too), in consonance with the provision of the Criminal Procedure (Application for leave to prefer a charge in the High Court) Rules, 1970 as set out about. It however, beats my imagination to discover from the Record of Appeal that the court below

found it difficult to agree with the trial courts holding. The court below, held, among other things:
“It is difficult for me to go along with his reasoning’s since the procedures to be followed were by-passed substantially by the prosecution who ought to attach in proofs (sic) of evidence the statements of the witnesses and of the accused and the prosecution failed to do so. Also present were a lot of lapses which can be interpreted to mean that the provisions of the Criminal Procedure (Applications for leave to prefer a charge in the High Court) Rule 1970 had not been complied with and brought into being what the Supreme Court had variously warned against that of pushing the accused into speculating on what he was faced with.
Also cannot be ignored (sic) is the fact that not considering each of the applications even if briefly but separately within the Ruling was akin to denying the each appellant (sic) the right of being heard. That is a situation of a grave nature (sic) that cannot be waved aside (sic). These infractions happening to each of the appellants, each application to have the charge quashed ought to have been favourably considered.”
With due respect to the court below, a court of law only decides on facts and the law presented before it and not on sentiments. The facts and the laws applicable in support of the application were properly placed before the trial court. The learned trial judge exercised his discretion based on his understanding of the facts and the law. It is not for the appeal court to substitute its views for that of the learned trial judge when it comes to exercise of discretion. See: OYEYEMI V. IREWOLE LOCAL GOVERNMENT (1913) 1 MWLR (part 270); SOLANKE V. AJIBOLA (1969) 1 NLR 259; HADMOR PRODUCTIONS LIMITED V. HAMILTON (1983) 1 A.C. 191 at page 220.
I fail to see where the learned trial judge went wrong either on the side of the facts or the law placed before him. His decision, to me is unassailable which, with all due respect, I have no cause to fault or alter. I, accordingly, in line with the well-reasoned judgment of my learned brother, M. D. Muhammad, do hereby allow the appeal by setting aside the judgment of the court below while I restore and affirm the decision of the trial court. I abide by other consequential orders made in the lead judgment.

JOHN AFOLABI FABIYI, J.S.C: I have had a preview of the judgment just delivered by my learned brother – M. D. Muhammad, JSC. I agree with the reasons therein advanced to arrive at the conclusion that the appeal has merit and should be allowed.
I desire to chip in a few words of my own only to depict oneness of purpose and support. The respondents, along with others were arraigned before the trial court for offering and receiving gratification. Thereat, they raised preliminary objection to the charge and their arraignment. The trial court overruled same. They appealed to the Court of Appeal, Abuja Division which found in their favour. The appellant has decided to appeal to this court.
The applicable law in this matter is section 185 (b) of the Criminal Procedure Code (CPC, for short). It provides that:-
“No person shall be tried by the High Court unless;
(b) a charge is preferred against him without the holding of a preliminary inquiry by leave of a judge of the High Court.”
Vide Order 3 (2) (a) and (b) of the Criminal procedure (Applications for leave to prefer a charge in the High Court) Rules, 1970, the application must be accompanied by proof of the evidence of the witnesses whom it is proposed to call in support of the charges. As well, the application shall include a statement ‘that evidence shown in the proofs will be evidence which will be available at the trial and that the case disclosed by the proofs is, to the best of the knowledge, information and belief of the applicant, a true case.’

It has been variously held by this court that proof of evidence should only disclose prima facie case which literally means evidence on its face value. See: the cases of Abogede v. The State (1996) 4 SCNJ 223 at 233; Ajidagba V. I.G.P. 3 FSC 5 at page 6. The proof of evidence and the statements of the respondents annexed to the application constitute prima facie case as dictated by the law, read along with the applicable rules stated earlier on in this write up.
The respondents touted the idea of branding a proposed witness as a ‘tainted witness.’ Let me say it in passing that a person cannot be declared as a tainted witness until he has testified and duly cross-examined. In sum, we are not there yet.
For the above reasons and the fuller ones ably set out in the judgment of my learned brother, I, too, feel that the appeal should be allowed. I order accordingly and endorse all the consequential orders contained in the lead judgment.

OLUKAYODE ARIWOOLA, J.S.C: I had the opportunity of reading in draft the lead judgment just delivered by my learned brother, Dattijo Muhammad, JSC. I am in total agreement with the reasoning therein and the conclusion arrived thereat. I also agree that the appeal is meritorious and deserves to succeed and be allowed. It is therefore allowed by me.
I abide by the consequential orders made in the lead judgment.

KUMAI BAYANG AKA’AHS, J.S.C: My learned brother M. D. Muhammad JSC made available to me in draft his judgment. I agree with his treatment of issues arising in this appeal.
The production of witnesses’ statements, if at all necessary, is for the inspection of the trial Judge to assist him in determining whether to grant leave to the prosecution to prefer a charge under section 185 (b) CPC in the High Court without first conducting a preliminary investigation. See Gaji V. State (1975) ANLR 268.
It is not a right that the statements be made available to the accused, failing which the charge or charges which the accused is facing must be quashed. The lower court was wrong in setting aside the ruling by the learned trial Judge on the issue. It is for this reason and the more comprehensive reasons contained in the leading judgment that I too will allow the appeal and remit the case to the trial court for the expeditious hearing of the case.

Appearances

AND

Before Their Lordships

HARUNA SIMON TSAMMANI, Justice of The Court of Appeal
NONYEREM OKORONKWO, Justice of The Court of Appeal
FOLASADE AYODEJI OJO, Justice of The Court of Appeal

Between

KOLA AKANJI Appellant

And

THE STATE Respondent

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TSAMMANI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Ogun State High Court sitting in Abeokuta delivered on the 18th day of January, 2017 by A. A. Akinyemi, J in Charge No: AB/5R/2014.

The Appellant was arraigned on a two counts charge of conspiracy to commit armed robbery and armed robbery which are offences contrary to and punishable under Sections 6(b) and 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap. R.11, Laws of the Federation of Nigeria, 2004. The Appellant was said to have, in company of two others (now at large), robbed one Fashola Moses of his Bajaj Motorcycle, one Nokia Mobile phone and the sum of six thousand naira (N6,000.00) on or about the 16/12/2010 along Olujobi Village via Itori, Ogun State.

The case of the prosecution on record is that, at about 7.00p.m on the 16/12/2010, the complainant (Fashola Moses) who testified as the PW1 was on his way to Ijoko in Yewa North Local Government Area on his Bajaj Motorcycle when the Appellant and two others stopped him and requested him to convey

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them to Ago-Olowo. That on their way, the engine then switched-off; and not knowing that it was deliberately switched-off by one of the passengers, the complainant stopped to check. That immediately one of the passengers struck him with a broken bottle on the forehead causing the complainant to fall down. The Appellant and his co-assailants took-off with the motorcycle leaving the complainant behind. That shortly after that, another motorcyclist came by and offered to assist the complainant pursue the robbers.

The prosecution also stated that the assailants were however involved in an accident in their bid to escape. That on arrival at the scene of the accident, the complainant explained to the villagers who had rushed to the scene of the accident, what transpired between him and those involved in the accident. That the villagers and the local Vigilante group then combed the surrounding bush where the Appellant and his co-assailants had run into, leading to the arrest of the Appellant while the others escaped.

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The Appellant who had made an extra-judicial statement to the police confessing to the crime, retracted same at the trial. At the trial he (Appellant), told the Court that, he had a body rash and had gone to the stream to bath and thereafter proceeded to Babalumo Village to buy fulcin to use for the body rash. That on his way, he saw some six (6) boys who were saying it is this kind of cloth. That the boys then took him to the OPC office where he was beaten and later handed over to the police. That the police then called someone who came and accused him of being one of the persons who robbed him of his motorcycle. He therefore denied that he was one of the persons that robbed the PW1 on the 16/12/2010.

At the trial, the prosecution called four witnesses and tendered four (4) exhibits marked as Exhibits 1A, 1B, 2 and 3 respectively. The Appellant testified in his own defence but called no witness. Learned counsel addressed the Court and in a considered judgment delivered on the 18th day of January, 2017 the learned trial Judge convicted the Appellant on both counts of conspiracy to commit armed robbery and for armed robbery and sentenced him to

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death. Being aggrieved by the decision, the Appellant has filed this appeal.

The Original Notice of Appeal which consisted of only the omnibus ground of appeal, was filed on the 17/2/2017. However, by leave of this Court granted on the 26/11/2018, the Appellant filed an Amended Notice of Appeal on the 29/11/2018 consisting of three (3) Grounds of Appeal. The parties then filed and exchanged Briefs of Arguments. The Appellants Brief of Arguments which was filed on the 15/1/19 raised therein, two issues for determination as follows:

1. Whether the allegations of conspiracy to commit armed robbery and armed robbery brought against the Appellant were proved by the prosecution so as to justify the conviction of the Appellant by the trial Court?

2. Whether the Appellant got fair trial before the trial Court?

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The Respondents Brief of Arguments settled by Mrs. Olajumoke S. Ogunbode (Principal State Counsel, Ogun State Ministry of Justice) was filed on the 08/4/19 but deemed filed on the 20/5/19. Two issues were also raised by the Respondents for determination as follows:

1. Whether from the totality of evidence at the trial, the prosecution has proved the offence of conspiracy to commit armed robbery and armed robbery against the Appellant beyond reasonable doubt.

2. Whether the Appellant was given fair hearing during the trial at the lower Court.

Having carefully considered the issues raised by both sides in this appeal, I am of the view that the following three (3) issues are germane for the determination of this appeal:

1. Whether from the proceedings on record, the Appellant had a fair trial in

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the trial Court?

2. Whether from the totality of the evidence adduced at the trial, the trial Court was right in convicting the Appellant for conspiracy to commit armed robbery?

3. Whether from the available oral and documentary evidence on the record, the trial Court was right in convicting the Appellant for having committed armed robbery?

In the determination of this appeal, I shall start with issue one (1), which raises the issue of fair hearing.

On issue one (1) therefore, learned counsel for the Appellant contended that the Appellant in the trial Court was represented by counsel who are staff of the Ogun State Ministry of Justice. That the office of the Public Defender is a Department under the leadership of the Attorney-General and Commissioner

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for Justice of Ogun State. That by Section 211(1) and (2) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the Attorney-General as well as Officers of his department can only prosecute criminal cases but cannot defend an accused person in a criminal matter. That the Records show that a letter was written to the office of the Public Defender requesting for legal representation for the Accused/Appellant, but there is nothing on record to show that the Appellant was consulted before the request was made on his behalf. It was then submitted that, by being represented by counsel from the same office of the Attorney-General of Ogun State who are prosecuting him, the Appellant was exposed to the risk of a breach of his confidence and/or compromise of his legal interest in the proceedings in the lower Court.

Learned Counsel for the Appellant went on to submit that, in law a person accused of a capital offence has the right to be defended by a legal practitioner of his own choice; or by counsel assigned to him by the Court if he is unable to afford the services of a counsel. The cases of Josiah v.

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State (1985) 1 NWLR (pt.1) 125 and Adigwe v. F.R.N. (2015) 8 NWLR (pt.1490) 105 at 135 were cited in support and to further submit that, in the instant case, the Appellant did not request to be represented by counsel from the office of the Ogun State Ministry of Justice. Furthermore, that it is clear from page 60 of the Record of Appeal, that the trial Court did not call upon the Appellants Counsel to address it on allocutus; and that the failure of the Court do so, rendered the entire proceedings null and void and of no effect. The case of Audu v. State (2016) 1 NWLR (pt.1494) 557 at 565 was cited in support; and to urge us to resolve this issue in favour of the Appellant.

On this issue, learned counsel for the Respondent contended that, the principle of fair hearing is fundamental to the administration of justice. That, the principle requires that the Court conduct the trial of a case with fairness and impartially, and without bias to any of the parties. The cases of Peter Pam & Anor v. Mohammed & Anor (2008) 5 S.C. (pt.1) 83 and Orugbo v. Una (2002) 13 SCM 153 were cited in support. That the essence of

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fair hearing is to give the parties equal opportunity to be heard or present their cases.

The case of Okeke v. State (2003) 15 NWLR (pt.842) 25 was then cited to submit that, in the instant case, there is no proof of any conflict of interest on the part of the defence counsel nor bias on their part. That in the instant case, the record show that, on the 06/11/14 when the plea of the Appellant was taken, one O. Omoniyi; Esq. of counsel whose chamber is in Lagos appeared for the Appellant. That, one S. O. Ogunyemi; Esq. from the Chamber of O. O. Omoniyi represented the Appellant all through the trial. In other words, that the Appellant was represented by a private legal practitioner throughout the trial. That in any case, throughout the trial, the Appellant never made the issue of choice of counsel an issue at the trial.

Learned Counsel for the Respondent went on to submit that, assuming (which he does not concede), that the office of the Citizen Rights Department

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represented the Appellant during the trial, it did not lead to a breach of the Appellants right to fair hearing. That in the case of The State v. Ibiloye Mathew (2018) LPELR – the Supreme Court held that, by Section 211(1)(b) and (c) of the 1999 Constitution, the powers of the Attorney-General is not just prosecutorial but also defensive, depending on the circumstances of each case. Furthermore, that the right of an accused is not compromised where a lawyer from a department of the Ministry of Justice takes up his defence. We were accordingly urged to resolve this issue against the Appellant.

Now, Section 36(6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) stipulates that:

36(6). Every person who is charged with a criminal offence shall be entitled to

(a) …

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(b)

(c) defend himself in person or by legal practitioner of his own choice;

By the above provision therefore, the right of an accused person to defend himself is therefore an inviolable constitutional right in favour of an accused person. Such right is for the accused person to exercise either in person, or through a legal practitioner of his own choice. To that end, where an accused person appears before a trial Court unrepresented by counsel, the trial Court has a duty to inquire from him, whether he desires to defend himself in person or through a legal practitioner. Where he intends to defend himself in person, the Court shall proceed but where the charge is one that carries the sentence of death, and the accused has no capacity to secure the services of a legal practitioner, the Court has a duty under Section 352 of the Criminal Procedure Law of Ogun State to assign one.

I have perused the record of appeal. At page 27 of the record of appeal, it

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is recorded that when the Accused/Appellant was presented before the Court, the Appellant was not represented by counsel; and he (Appellant) requested the Court to assign one for his defence. The trial Court then directed the Registrar of the Court to write to the Citizen Rights Department to provide legal representation to the Accused/Appellant. On the 06/11/2014, when the plea of the Appellant was taken, one O. Omoniyi; Esq. of counsel appeared for the accused. The said O. Omoniyi; Esq. with S.O. Oluyemi; Esq. appeared for the accused when PW1 and PW2 testified; and were duly cross-examined by counsel. Similarly, when PW3 and PW4 testified, the Appellant was duly represented by one S.O. Ogunyemi; Esq. of counsel who duly cross-examined the two witnesses and also raised necessary objection when the extra-judicial statements of the Appellant were tendered. Though, there is no indication whether counsel were from the Citizen Rights Department of the Ogun State Ministry of Justice, there is no indication that the Appellant protested the appearance of counsel for him. Indeed, it has been held in the case of Okon v. State (1995) 1 NWLR (pt.372) 382 that, Section 36(6)(c) which guarantees to an accused person the right to defend himself in person, or brief counsel

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of his own choice is intended to ensure, in the interest of justice, that an accused person is not denied the right to defend himself either personally, or through counsel of his own choice. Where an accused person has surrendered his right of choice of counsel to the Court, he cannot be heard to complain, where the Court does his bidding by assigning counsel. Thus in Okon v. State (supra), the Supreme Court, per Iguh, J.S.C. said:

Where, the offence charged involves capital punishment on conviction and the accused person is not defended by a legal practitioner, the Court under Section 352 of the Criminal Procedure Act is enjoined and indeed bound to assign a legal practitioner for his defence. The assignment of counsel by the Court to an accused person is unable, or, has abandoned his right to brief a legal practitioner of his own choice to conduct his defence. The reason is because it is mandatory that an accused person shall be defended by a legal practitioner throughout his trial for an offence which involves capital punishment. Consequently, where in such a trial, an accused person fails to brief counsel, the Court shall assign one for his defence as he cannot be

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kept in custody indefinitely without trial because he does not have a legal practitioner of his own choice to conduct his defence. I think I should add that this duty imposed on the Court to assign counsel to defend an accused person who is unable to brief a legal practitioner for his defence in a capital offence does not, in my view, call for or require the consent of or any consultations with such an accused person before the same may be discharged.

It should also be noted that, it is not the law that once a Court assigns counsel to an accused person, such an accused person will remain bound by it throughout the trial. Such an accused person is at liberty to reject, disown, protest, or even change such counsel if he is not satisfied with the performance of the counsel assigned to him by the Court. See Section 7(3) of the Legal Aid Act, Cap.205, Laws of the Federation and the case of Nwambe v. State (1995) 3 NWLR (pt.384) 385. See also Nemi & Ors v. State (1994) LPELR 24854 (SC). In the instant case, the Appellant did not complain about the conduct of counsel assigned to defend him throughout the trial. On appeal

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before us, aside from making the assertion of likelihood of bias, or conflict of interest by counsel, the Appellant has not laid before this Court, facts upon which the Court can make such assumption or conclusion. Indeed, the record of appeal show that, counsel dutifully conducted the defence of the Appellant by cross-examining the witnesses called by the prosecution, and even raised objection to the admissibility of the extra-judicial statement of the Appellant when same were tendered. I am therefore of the view that, this issue raised by the Appellant is an afterthought. It is accordingly resolved against the Appellant.

Now, on issue one formulated by me, which deal with the conviction for armed robbery, learned counsel for the Appellant cited the cases of David Obue v. The State(1976) All NLR 139 and Ogidi & Ors v. The State (2005) 1 NCC 163 at 177 to submit that, in order to secure a conviction in any criminal trial, the prosecution must prove the charge against the accused person beyond reasonable doubt. That arriving at a decision, the trial Court must carefully

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consider the totality of the evidence presented before it in order to arrive at a decision as to whether or not the prosecution has been able to establish a case against the accused person beyond reasonable doubt. That, the prosecution’s case must be devoid of such contradictions that will cast doubt on its case, as once there are significant contributions in the prosecution’s case, the Court is enjoined to ascribe the benefit of it in favour of the accused person. The case of Olayinka v. State (2007) 9 NWLR (pt.1040) 561 at 584 was cited in support.

Learned Counsel for the Appellant went on to submit that, the case of the prosecution was fraught with so much inconsistencies and contradictions on material facts that left the prosecution’s case short of the standard required by law. That, PW4 failed to establish that the broken bottle he recovered at the scene of crime was the same one used by the Appellant to commit the robbery. That the broken bottles were not even tendered as exhibits nor did the PW4 give evidence that the Appellant’s finger prints

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were analyzed to be on the broken bottle. That this fact is important because the Appellant denied visiting the place with any other person including the PW4. It was therefore contended that, the learned trial Judge was therefore wrong to convict the Appellant based on the testimony of PW4 who could not prove that the Appellant attacked PW1 with broken bottles. The cases of Egwu v. The State (2013) All FWLR (pt.682) 1812; Johnson v. The State (2013) 3 NWLR (pt.1340)78; Okeke v. The State (1995) 4 NWLR (pt.392) 676 and Okpulor v. The State (1990) 2 NWLR (pt.164) 541 were cited in support; and to further submit that the circumstances of the case require that the alleged broken bottles be tendered.

It was also argued by learned counsel for the Appellant that, PW1 did not say that the broken bottle recovered is the same as that with which he was stabbed nor is there any medical report to establish the fact that the injury/scar on PW1’s head was the result of a stab he received by the use of the broken bottle. Learned Counsel then submitted that, any piece of evidence which has been discredited cannot be relied upon by the trial Court in the

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determination of the guilt of an accused person. The case of Lateef v. The State (2013) 17 NWLR (pt.1383) 281 was then cited to submit that, the evidence of the prosecution with regards to the broken bottles is incomplete.

Learned Counsel for the Appellant went on to submit that, the Appellant maintained that the contents of Exhibits 1A, 1B and 3 were dictated to him by PW3 and PW4 and therefore not voluntarily made by him. In other words, the Appellant denied making those statements. That, nonetheless, the learned trial Judge went on to convict the Appellant based on Exhibit P3 and P7 and the evidence of PW1 who never identified the Appellant. It was then submitted that, the trial Court could only convict the accused person based on his confessional statement if such statement was proved to be free, voluntary, direct and positively proved. The cases of Adisa v. The State (2013) 14 NWLR (pt.1375) 567 and Obosi v. The State (1965) NMLR 119 were cited in support. That Exhibits 1A, 1B and 3 were not voluntarily made and therefore, the trial Court erred by relying on them to convict. We were accordingly urged to hold that the prosecution failed to prove their case against the Appellant beyond

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reasonable doubt.

In response, learned counsel for the Respondent contended that in law, the commission of a crime may be proved by any one or all of the following ways:

(a) by the account of eye witness(es) who saw the commission of the offence.

(b) by circumstantial evidence which unequivocally point at the guilt of the accused person.

(c) through the voluntary confessional statement of the accused person.

That, the evidence led must establish the following ingredients of the offence of armed robbery beyond reasonable doubt

(i) that there was a robbery.

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(ii) that the accused person was the robber or one of the robbers.

(iii) that the robber was armed at the time of committing the robbery.

Learned Counsel for the Respondent then submitted that, the fact that there was an armed robbery was not in dispute at the trial. That, the testimony of PW1 who was the victim established beyond reasonable doubt that there was a robbery on the 16/12/2010. As for the second (2nd) ingredient, learned counsel contended that, there is ample evidence that the Appellant was armed with a broken bottle in the course of committing the robbery. To that extent, learned counsel commended the testimony of PW1 who was the victim of the robbery. Furthermore, that PW4 testified that broken bottles were recovered at the scene of the robbery. That, the Appellant admitted in his statement to the police Exhibits 1A, 1B and 3 that he was in possession of a broken bottle. The case of Osung v. The State (2011) 11 SCM 176 at 197 was cited in support, and to also submit that, the prosecution satisfied the burden of proof that the Appellant was armed at the time of the robbery. The cases of

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Olayinka v. State (2007) 9 NWLR (pt.1040) 561 and Hamza v. The State (2016) LPELR 41557 (CA) were then cited to further submit that, the non-production of the weapon used by the Appellant is not a sine qua non to a conviction in a charge of armed robbery.

On the third ingredient, learned counsel for the Respondent submitted that, PW1 who doubled as a victim and eye witness of the offence, recognized the Appellant upon his arrest. The case of Nkebisi & Anor v. The State (2010) 3 SCM 170 at 174 was then cited to submit that, the evidence of a single witness which is believed, given the circumstances of a case will not in law, require corroboration. That in the instant case, the testimony of PW1 is the direct evidence of a person who witnessed the crime and was able to identify his assailant. That in any case, where there is good and cogent evidence linking the accused to the crime charged, a formal identification parade is not necessary. The case of Adebayo v. The State (2014) 8 SCM 34 was cited in support and to further submit that in the instant case, there was no dispute as to the identity of the Appellant as one of the persons that robbed PW1 on

…………………….V…………………….

the 16/12/2010. That the Appellant was arrested on the date of the robbery and made a statement to the police giving the graphic details of his involvement in the commission of the crime.

Learned Counsel for the Appellant also referred to Sections 28 and 29 of the Evidence Act, 2011 which define what confession is, and its effect, and proceeded to submit that, a trial Court can rely solely on the confessional statement of an accused person to convict him; provided such a statement is direct, positive and duly proved. The case of Akpa v. State (2008) 8 SCM 68 at 70 was cited in support. That in the instant case, objection was raised as to the voluntariness of Exhibits 1A, 1B and 3 which led to a trial within trial before those statements were admitted. The cases of Ogudo v. The State (2011) 11 12 SCM 209 at 212; Lasisi v. The State (2013) 6 SCM 216 were cited to submit that the trial within trial was conducted even though the complaint of the Appellant was that he did not make those statements but that he was forced to sign an already prepared speech. It was then submitted that, the learned trial Judge having found that those statements were voluntarily made,

…………………….W…………………….

was right to have considered them in convicting the Appellant.

Now, by Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), every person who is charged with the commission of a criminal offence, shall be presumed to be innocent until he is proved guilty. By that presumption of innocence therefore, the prosecution has the onerous duty of adducing credible evidence which will prove every ingredient of the offence charged beyond reasonable doubt. It therefore means that where any of the ingredients of the offence charged is not proved, or the evidence led in proof thereof is discredited by way of cross-examination, the charge has not been proved beyond reasonable doubt. Similarly, where the evidence adduced is contradictory on material elements of the offence, it would mean that a doubt has been created in the mind of the Court; and it would therefore be concluded that the charge has not been proved beyond reasonable doubt. See Sections 131, 132 and 135 of the Evidence Act, 2011.

…………………….X…………………….

See also State v. Isiaka (2013) 11 NWLR (pt.1430) 374 and State v. Azeez & Ors (2008) 14 NWLR (pt.1108) 439. Thus in the case of Rasaki v. The State (2011) 10 NWLR (pt.1273) 251, I said:

in an accusatorial system of administration of justice as practiced in this country, the general burden of proof lies always on the person who alleges. In criminal trials, the general or legal burden of proof lies on the prosecution and does not shift, to prove the guilt of the accused person. This legal burden is supported by Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria, which guarantees to all persons accused or charged with a criminal offence, the right to be presumed innocent until proven guilty. This burden, the prosecution must discharge beyond reasonable doubt by proving every ingredient of the offence charged by credible evidence which also rebuts any defense raised by the defense. Where at the close of evidence an essential element of the offence charged has not been proved, a doubt would have been created as to the guilt of the accused, and he shall be entitled to a discharge and acquittal.

…………………….Y…………………….

In the instant case, the Appellant was charged for having committed the principal offence of armed robbery. The hackneyed elements to be proved in a charge of armed robbery are:

(a). that there was a robbery or series of robberies;

(b). that the robbery or each of the robberies was an armed robbery;

(c). that the accused person was the robber or one of those who took part in the armed robbery.

It is also trite law that the commission of an offence, including armed robbery may be proved through any one or a combination of the following ways:

(a). by the direct evidence of a person or persons who saw the commission of the offence;

…………………….Z…………………….

(b). by circumstantial evidence which lead to no other conclusion than that the accused person committed the offence.

(c). by the confessional statement(s) of the accused person which is direct, positive, unequivocal and duly proved.

See Michael Adeyemo v. The State (2015) LPELR 24688 (SC); Gabriel Ogogovie v. The State (2016) LPELR 40501 (SC); Joseph Bille v. The State (2016) LPELR 40832 (SC) and Onuoha & Ors v. State (1989) 3 NWLR (pt.101) 23.

In this appeal, the Appellant complains first of all, that the evidence led by the prosecution in the trial Court is full of contradictions on material facts. Specifically that the prosecution failed to establish that the broken bottle the PW4 said he recovered from the scene of crime are the same ones used in the commission of the robbery on PW1. It should be noted that, it is not every contradiction or inconsistency in the evidence adduced by the prosecution that will have the effect of discrediting the totality of the

…………………….AA…………………….

prosecution’s case. For a contradiction to affect the credibility of the prosecution’s case, it must be on material facts that touch on the root or essential elements of the offence charged. Therefore, minor or minute contradictions will be treated under the deminimis rule. See Osung v. The State (2012) 18 NWLR (pt.1332) 256 at 278 paragraphs F H; Bassey v. State (2012) 12 NWLR (pt.1314) 209; Edet Okon Iko v. The State (2001) LPELR 1480 (SC) and Corporal Isah Ahmed v. The Nigerian Army (2016) LPELR 40826 (SC). Thus, in Musa v. State (2009) 15 NWLR (pt.1165) 467, the Supreme Court, per Fabiyi, J.S.C. said:

It is necessary at this juncture to point out that contradiction in the evidence of the prosecution that will be fatal must be substantive. It is not every miniature contradiction that can vitiate the case of the prosecution. Minor contradiction which did not affect the credibility of witnesses will be of no avail to the Appellant. Contradiction, to be worthy of note, must relate to the substance and indeed the vital ingredients of the offence charged. Trivial contradiction should not vitiate a trial

…………………….AB…………………….

It is clear therefore, that for a contradiction to avail an accused person, it must be one that is capable of creating doubt in the mind of the Court on a material issue at the trial. In the instant case, the complaint of the Appellant before us does not relate to any contradiction. At best, the complaint relate to evidence of the identity of the weapon used by the assailants on the PW1. Incidentally, no issue was raised at the trial on the identity of the weapon used in the commission of the robbery. This is more so, as the said broken bottle(s) allegedly recovered by the PW4 at the scene of crime was not tendered in evidence. This issue is therefore a non-sequitur; but same leads us to the second complaint of the Appellant.

The Appellant had therefore complained that the prosecution failed to tender the broken bottles used in attacking the PW1. That, failure to so tender is fatal to the prosecution’s case. It is not the law that the prosecution must tender the weapon used in the commission of the robbery. In other words, it has never been the law that the weapon of robbery be tendered in evidence, and therefore, the prosecution need not tender the weapon of the offence of

…………………….AC…………………….

armed robbery. Failure of the prosecution to tender the offensive weapon without more, cannot result in the acquittal of the accused person. Once there is credible evidence that an offensive weapon was used, it will suffice, so long as all the essential elements that constitute the offence are proved by credible evidence beyond reasonable doubt. See Kayode Ayodeji v. The State (2017) LPELR 42374 (CA); Olayinka v. The State (2007) 7 NWLR (pt.1040) 561 and Babarinde & Ors v. The State (2014) 3 NWLR (pt.1395) 568. This is particularly so where there is cogent eye witness evidence of the commission of the offence. As My Lord, Kekere-Ekun, J.S.C. in the case of Babarinde v. The State (supra) said:

In order to secure a conviction for armed robbery, the prosecution must prove that the accused person was armed with an offensive weapon. The weapon may be a gun or any other object likely to induce fear of bodily harm in the victim such as a cutlass or machete. Where a gun or other offensive weapon is used in the commission of an offence, it is not essential to tender the weapon to secure a conviction, provided there is cogent eye witness evidence or in the

…………………….AD…………………….

absence of eye witness evidence, there is enough unequivocal circumstantial evidence that points to the guilt of the accused.

My Lord, I.T. Muhammad, J.S.C. (as he then was) in the case of The People of Lagos State v. Mohammed Umaru (2014) 7 NWLR (pt.1407) 584 put light to it in these words:

Although non-tendering of a weapon or weapons alleged to have been used on a victim of an armed robbery or any crime, for that matter, may not be fatal to prosecution’s case where the defendant confesses to the commission of the crime, the production of the items recovered from the scene of crime, including the alleged dagger, along with the statements made by PW1, and more importantly, the confessional statement said to have been made by the respondent, would have gone a long way to lay same weight to the evidence led by the prosecution.

…………………….AE…………………….

In the instant case, the evidence on record discloses that, the persons who attacked the PW1 hit him on the head with a bottle causing him to bleed. That they took away his motorcycle and rode away; and that in their bid to escape, fell with the motorcycle thereby attracting the attention of other persons around. They (robbers) then escaped into a nearby bush before the PW1 who had gotten help from a fellow motorcyclist could arrive the scene of the accident. With the help of PW2, a local vigilante leader, a search was organized and the Appellant was arrested some few hours after the incident in the nearby bush while the others escaped. The PW3 testified under cross-examination that, when the crime was reported at the Ewekoro Police Station, he saw that the complainant (PW1) had injury on his head inflicted with a bottle by the Appellant and his gang. The PW1 also gave evidence that he was hit on the forehead with a bottle and his motorcycle taken away. The learned trial Judge made findings on the issue of the weapon of the offence and concluded at page 54 lines 18 28 of the record of appeal as follows:

The evidence of PW2, PW3 and PW4 which were all cogent and credible, clearly

…………………….AF…………………….

corroborated that of PW1 that those who robbed him hit him on the head with a bottle, which caused him to bleed. I hold therefore that the prosecution has proved that the robbery was carried out with the use of an offensive weapon. The argument of Learned Defence Counsel to the effect that the failure of the prosecution to tender the broken bottles, and to produce medical report of the injury sustained by the PW1 or his failure to show his scar to the Court is fatal to the prosecution’s case, cuts no ice with me. While it is always desirable to tender the weapon of crime, where there are other compelling evidence linking the Accused to the offence, production of the weapon is unnecessary. See Olayinka v The State (2007) 9 NWLR (pt.1040) 561; Sunday v. The State (2013) LPELR 20196.

The above finding of the learned trial Judge is supported by the evidence on record. The victim of the crime who testified as the PW1, stated that the Appellant and his gang hit him on the forehead with a bottle (or broken bottle) and he fell down. That he sustained injury on his head as a result, leading to bleeding. The PW2 stated that PW1 had injury on his head, and that

…………………….AG…………………….

he and his boys took the PW1 and treated him of the injury. Under cross-examination, PW2 stated that:

When I got to the scene, I saw the victim on the ground with blood.

The evidence of injury on the victim’s head was corroborated by the testimony of PW3 who testified under cross-examination that, he noticed that the complainant (PW1) had injury on his head; and when asked the source of the injury, PW1 informed him that it was the Appellant and his gang that inflicted the injury on him with a bottle. That was on the 18/12/2010, just two days after the robbery incident. On that note, I am satisfied with the finding of the trial Court, that the robbery was an armed robbery.

I also find that there is ample evidence on record which linked the Appellant with the robbery incident. In other words, there was evidence from the prosecution witnesses, including the confessional statements of the Appellant which fixed him at the scene of crime. I therefore agree with the findings of

…………………….AH…………………….

the learned trial Judge at page 55 lines 8 – 18 of the record of appeal, when he held as follows:

The final requirement in the charge of Armed Robbery is to link the Accused with active participation. PW1, the victim, testified that the Accused was among those who robbed him. There is ample evidence that the incident occurred at about 7:00p.m, when it was not yet too dark for PW1 to see and recognize his assailants. They stopped him like normal innocent passengers. They were not masked. He negotiated the fare with them, which gave him an opportunity to see their faces. He even had the presence of mind to notice that the Accused was the tallest of the three. Soon after he was robbed, the Accused was caught, and without any hesitation, he identified him as one of the robbers.

After considering the relevant evidence of the PW1 and PW2 on the issue of identification, the learned trial Judge concluded at page 57 lines 2 23 of the record of appeal as follows:

…………………….AI…………………….

In the instant case, as can be seen from the evidence reproduced above, PW1, the victim, gave a clear and unequivocal evidence of identification of the Accused at the earliest opportunity.. There is strong and convincing evidence that the Accused was one of the three (3) persons who had an accident with the motorcycle stolen from PW1, and who ran into the bush after the accident. There is also convincing and cogent evidence that he was caught inside the bush that he ran into that evening. There is further evidence that the moment PW1 saw him, he promptly and unhesitatingly recognized and identified him as one of those who robbed him. I find the evidence of PW1, PW2 and PW4 linking the Accused to the crime, cogent, credible and convincing. I believe them as witnesses of truth. I disbelieve the evidence of the Accused that he was coming from the farm or the stream, and going to buy a drug for body rash, when he was accosted and arrested by same six (6) boys. In my view, there was sufficient evidence linking him with the crime, making a formal identification parade unnecessary. From the totality of the evidence before the Court, even without considering the confessional statements, I find and hold that the Accused was one of the three (3) persons who robbed PW1 of his

…………………….AJ…………………….

motorcycle and other valuables on the 16th of December, 2010 after hitting him on the head with a bottle.

It would be seen therefore, that the trial Court did not reach its decision to convict on the confessional statement of the Appellant alone. Rather, the learned trial Judge was of the view that the confession of the Appellant went to corroborate the evidence led by the prosecution witnesses. It should be noted that the confessional statements of the Appellant were tendered and admitted in evidence after a trial-within-trial. There is no ground of appeal which specifically challenges the admission of those statements in evidence. The effect therefore, is that, the Appellant has no complaint against the admissibility of those statements. The best that can be ascribed to the complaint of the Appellant on those confessional statements, would be under ground one (1), which is the omnibus ground. The complaint would therefore be that the learned trial Judge did not evaluate, or properly evaluate the evidence of confessional statements before ascribing weight thereto.

…………………….AK…………………….

It is trite law that the primary or initial duty of evaluating and apportioning probative value or weight to evidence adduced at the trial, is on the trial Court which saw, heard and observed the witnesses as they testified. Therefore, once the learned trial Judge has dutifully performed his role, this Court, being an Appellate Court will not interfere. This Court can only validly interfere with the findings of the trial Court where such findings are perverse, in the sense that they have occasioned injustice, or that the trial Court wrongly applied the law to the facts, or introduced extraneous facts into the issue(s) under consideration. See Okechukwu Chukwu v. The State (2012) LPELR 15360 (CA); Akindipe v. State (2008) 15 NWLR (pt.1111) 560 and Umaru Hassan v. Markus Gwani (2014) LPELR 24594 (CA). See also Dr. Soga Ogundalu v. Chief A.E.O. Macjob (2015) LPELR 24458 (SC). Thus, in evaluating the confessional statements of the Appellant made to the police, the learned trial Judge held at pages 57 line 24 58 line 5 as follows:

Notwithstanding, I shall still consider the confessional statements of the

…………………….AL…………………….

Accused person. Exhibit 3, which was admitted after a trial-within-trial, was the 1st Statement made by the Accused the very next day after the commission of the crime, at Ewekoro Police Division. In it, he confessed to his participation in the crime and mentioned the two (2) other members of his gang to be Alaja and Ebony. He narrated how the robbery was executed and how he was subsequently arrested. His narration in the statement does not materially differ from the narration of PW1, the victim. It was graphic, direct, positive and straight forward. The Court held after the trial within trial that it was freely and voluntarily made. The other facts in evidence clearly support and corroborate the content of this statement. The Accused had the opportunity to commit the crime, being on the scene that night, and he could have made the statement, considering the way he was arrested, leaving him with no other choice.

It is my considered view that this statement passes the test of truth and is reliable to be acted upon by the Court. I find and hold that the Accused made Exhibit 3 freely and voluntarily and that its contents are true.

…………………….AM…………………….

The learned trial Judge went on to make findings at page 58 lines 23 32 of the record of appeal as follows:

Again, I find that the contents of these statements are corroborated by other evidence in the case, outside of the statements (especially evidence of PW1 and PW2) and hold that they are true as far as can be tested by all the surrounding facts and circumstances. I also find and hold that the Accused had the opportunity to commit the offence as he was fixed at the scene of the crime by the evidence of PW1. Also, the confession is very possible considering how he was arrested within a short distance and time from the commission of the crime. Furthermore, the confession is very consistent with the other facts as proved by other evidence before the Court.

I endorse the above findings of the learned trial Judge. Indeed, the PW1, being the victim of the crime testified that he had to negotiate with his assailants for the fare they would pay. Which means that, the PW1 had sufficient time and opportunity to observe his assailants. The Appellant was

…………………….AN…………………….

arrested a short distance from the scene of crime and a few hours after the robbery incident. It should also be noted that the robbery incident took place at about 7.00p.m on the 16/12/2010 and the Appellant was arrested a few hours later that night. The Appellant did not give account of his whereabouts at 7.00p.m on the 16/12/2010. He only stated that:

On 16th December, 2010, I went to the farm to farm had a body rash. I went to the stream to bath and I went to Babalumo Village to buy fucin to use for the body rash. As I was going I saw about 6 boys saying it is this kind of cloth. They took me to OPC Zone.

As I stated earlier, the robbery took place at about 7.00p.m. It is inconceivable that the Appellant could have been going to the farm to farm at 7.00p.m. I do not therefore believe the testimony of the Appellant as it did not in any way state his whereabout at the time of the robbery incident. The only logical conclusion is that, the confession of the Appellant which was made immediately after his arrest is true, considering the entire

…………………….AO…………………….

circumstances of the case. In any case, the confessional statements of the Appellant were amply supported by other evidence on record. The learned trial Judge was therefore right when he held that:

…with or without the confessional statements of the Accused person, the prosecution has satisfactorily proved beyond reasonable doubt, all the ingredients of Armed Robbery against the Accused Person.

On that note, I am of the view that the learned trial Judge was right in convicting the Appellant for having committed the offence of armed robbery.

On the conviction for conspiracy, learned counsel for the Appellant did not proffer any argument on the issue of the conviction for conspiracy to commit armed robbery. It is the law that, issues for determination formulated in a Brief of Arguments and on which no arguments are proffered in the Brief of Arguments, are deemed abandoned. Such issue should be struck out. See Agbo v. State (2006) 6 NWLR (pt.977) 545, Ali v. State (2012) 7 NWLR (pt.1299) 209

…………………….AP…………………….

and Institute of Health, Ahmadu Bello University Hospital Management Board v. Anyip (2011) 12 NWLR (pt.1260) 1. Thus, in Buhari & Ors v. Obasanjo & Ors (2003) 17 NWLR (pt.850) 510, the Supreme Court held as follows:

The law is settled that where counsel proffered no argument on any issue before the Court, such an issue is deemed as having been abandoned.

In the instant case, the Appellant having not proffered any arguments on his conviction for conspiracy, is deemed to have abandoned that issue. The implication of that is that the conviction of the Appellant for conspiracy to commit armed robbery has not been challenged.

On the whole therefore, it would be seen that this appeal has no merit. It has failed and is accordingly dismissed. Consequently, the judgment of Ogun State High Court sitting at Abeokuta in Charge No: AB/5R/2014 delivered on the 18th day of January, 2017 is hereby affirmed.

…………………….AQ…………………….

OKORONKWO, J.C.A.: After an extensive review of this case of armed robbery on appeal before us, my learned brother quoting the trial judge at page 27 of the lead Judgment said:

The only logical conclusion is that, the confession of the Appellant which was made immediately after his arrest is true, considering the entire circumstances of the case. In any case, the confessional statements of the Appellant were amply supported by other evidence on record. The learned trial judge was therefore right when he held that:

” ….with or without the confessional statements of the Accused person, the prosecution has satisfactorily proved beyond reasonable doubt, all the ingredients of Armed Robbery against the Accused Person.

I agree entirely with the conclusion arrived at. I will also dismiss the appeal as lacking in merit.

…………………….AR…………………….

AYODEJI OJO, J.C.A.: I have read in advance the judgment delivered by learned brother, Haruna Simon Tsammani J.C.A.. His Lordship has dealt exhaustively with the issues in this appeal and I agree completely with the reasoning and conclusions reached therein.

The law is trite that evidence of an eye witness is one of the best evidence available in criminal trials as it is direct and provides an on the spot narration of the commission of the crime. It is more reliable than an identification parade. Such evidence must however be examined in detail by the trial judge. The need for detail examination is hinged on the tendency of victims of violent crimes to quickly implicate anyone shown to them by the Police as the culprit. It is for this reason that Courts are enjoined to take into consideration certain factors in resolving eye-witness identification of a criminal. See State vs. Yahaya (2019) 13 NWLR (Pt. 1690) 397; Ochiba vs. State (2011) 17 NWLR (Pt. 1277) 633; Ndidi vs. State (2007) 13 NWLR (Pt. 1052) 633. In Adekoya vs. State (2017) 7 NWLR (Pt. 1565) 343, the Supreme Court, per Peter-Odili, J.S.C. held that:

…………………….AS…………………….

“The Court of Appeal had this to say that in view of the circumstances of the case that there was no need for an identification parade as the evidence of PW1 and PW4 in particular was overwhelming and cogent enough to show that the appellant was one of armed robbers that robbed PW1 at her residence on 11/2/2005. In the guide as reiterated in Ndidi v State (2007) 5 SCNJ 274 at 286-287 the Supreme Court had stated that in proving identity of an accused the following must be taken into consideration:

a. Circumstances in which the eye-witness saw the accused:

b. The length of time the witness saw the accused;

c. The light conditions:

d. The opportunity of close observation:

e. The previous contact between the parties.”

…………………….AT…………………….

In the instant appeal, PW1 was the victim of the crime. As stated in the lead Judgment, PW1 negotiated with the Appellant and his co-assailant on the transport fare to be paid by them. There was therefore sufficient time for him to note the physical features of the Appellant to wit: that the Appellant was taller than his co-assailants. Furthermore, it was not yet dark as the robbery took place at 7.00pm. PW1 therefore had the opportunity to closely observe the Appellant and the other assailants who stopped him like normal passengers. The trial Court took into consideration laid down guiding factors before ascribing probative value to the eye-witness account of P.W. 1. His conclusion cannot be faulted.

It is for the foregoing and the fuller reasons contained in the lead Judgment that I also find this appeal unmeritorious and it is accordingly dismissed by me. I equally affirm the Judgment of the trial Court.

Representation

A.M. Kotoye, Esq.For Appellants
Mrs. F.E. Bolarinwa Adebowale (Chief State Counsel, Ogun State Ministry of Justice) with him, M.M. Akintunde, Esq. (State Counsel, Ogun State Ministry of Justice)For Respondents.

Before Their Lordships

OLABODE RHODES- VIVOUR, Justice of the Supreme Court of Nigeria

CHIMA CENTUS NWEZE, Justice of the Supreme Court of Nigeria

AMIRU SANUSI, Justice of the Supreme Court of Nigeria

EJEMBI EKO, Justice of the Supreme Court of Nigeria

UWANI MUSA ABBA AJI, Justice of the Supreme Court of Nigeria

Between

JUDE ONWUZULIKE. Appellant

And

THE STATE. Respondent

…………………….A…………………….

EKO, J.S.C. (Delivering the Leading Judgment): At the High Court of Anambra State, sitting at Otuocha, the appellant was tried and convicted for the offence of kidnapping contrary tosection 315(1)(b) of the Criminal Code Law of Anambra State (as amended in 2009). He was sentenced to life imprisonment. Both the conviction and sentence were on 15th February, 2017 affirmed by the Court of Appeal (the lower court) – hence this further appeal.

The parties seem to agree on the two issues formulated by the appellant for the determination of the appeal. That is:

1.Whether the court below was right when it failed to expunge from the record the computer-generated evidence (exhibits C and F3) on which the learned trial court heavily relied to convict and sentence the appellant for the offence of kidnapping when the admission of the said evidence ran contrary to the mandatory provisions of section 84(4) of the Evidence Act, 2011 regarding computer-generated evidence.(Ground 1)

2.Whether the learned trial Judge was right in his approach, findings and conclusions reached on the evidence adduced at the trial by which he convicted the appellant of the evidence of kidnapping? (Grounds 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18)

In the judgment (Tur, JCA, particularly at page 378 of the record, which Pemu and Bolaji-Yussuff, JSCA, concurred in) the lower court concluded:

“The evidence of the prosecution witnesses which stands unchallenged and is not discredited can be supported on the “last seen”; “last heard” and “last perceived” theory coupled with the grounds on which the opinion of these vital witnesses was held. Section 76 of the Evidence Act, 2011 provided as follows:

…………………….B…………………….

’76. Whenever the opinion of any living person is permissible the grounds on which such opinion is based are also admissible.’

See paragraph 37 – 09 and 37 – 10 of Phipson on Evidence (supra) pages 921 to 923.”

Taking a cue, apparently from this conclusion, Mr. Obeogolu of counsel to the appellants submits, at paragraph 4.04 of the appellant’s brief, that “the prosecution tendered exhibits C and F3 for the purpose of showing that the appellant was one of the last persons captured on the alleged kidnap victim’s call logs data to have spoken with the alleged kidnap victim on the evening of 14/1/2013, the evening the latter went missing”, and further that the said “electronic evidence were tendered to prove that one Nnamdi Osita (whom the prosecution surmised to be appellant’s accomplice) started using the alleged kidnap victim’s phone on 15/1/2013 after the latter went missing”. The kidnap victim had since not been found or heard from.

It appears to me that the appellant, under his issue 1, is arguing that – since exhibits C and F3 were admitted in evidence contrary to the provisions of section 84(4) of the Evidence Act, 2011 the lower court, he urged, ought not to have acted on them to affirm the conviction and sentence of the appellant for the kidnap of Chinwuza Ekwenze – who nobody had seen or heard from since 14 January, 2013. What the learned counsel for the appellant should concern himself with under this issue should be establishing how the trial court wrongly, contrary to the provisions of section 84(4)of the Evidence Act, admitted in evidence and relied on exhibits C and F3 – pieces of computer-generated evidence.

Exhibit C, the flash drive, was admitted in evidence through the PW5 at pages 130-131 of the record. The objection to admissibility of exhibit C was not under section 84 of the Evidence Act but under sections 89 & 91(4) of the Evidence Act – provisions dealing,respectively, with how secondary evidence

…………………….C…………………….

relating to document may be given and the rules as to how notice to produce may be given to warrant admissibility of secondary evidence under section 89 thereof.

The matters arising in relation to exhibit C are therefore:whether a party is permitted to raise his objection to admissibility of a piece of evidence by way of appeal upon a ground of appeal.Secondly, should a party not be consistent in litigation? This enquiry drives me to have a second look, howbeit critical, at the notice of appeal and the ground of appeal from which the issue was formulated.

In the first place, the appellant filed amended notice of appeal which was deemed filed and served on 17 October, 2019. The amended notice of appeal was necessitated by the appellant’s intent or desire to file 18 additional grounds of appeal, in addition to the original single ground of appeal contained in the notice of appeal at pages 382 – 385 on 9 May, 2017. The said original notice of appeal against the decision delivered by the lower court on 15 February,2017 was filed on 9 May, 2017 – on the 84th day from the said 15 February, 2017. The period prescribed for giving notice of appeal“ in an appeal in a criminal case”, that this case is (by virtue of section 27(2)(b) of the Supreme Court Act), is “thirty days from the date of the decision appealed against”. This appeal, even as at the date the notice of appeal was purportedly filed as of right on 9 May,2017 was “dead on arrival”.

My Lords, where the notice of appeal is defective and incompetent, the appeal ipso facto is incompetent. Olowokere v.African Newspapers Ltd. (1993) 5 NWLR (Pt. 295) 583 at 586.The mere fact that leave was granted, on 17 October 2019, to the appellant to file and argue 18 additional grounds of appeal does not regularize this incompetent appeal. In Aderigbigbe v. Abidoye(2009) LPELR-140(SC), (2009) 10 NWLR (Pt. 1150) 592, citing with approval its previous decisions in Awhinawhi & Anor. v. Oteri & Ors. (1984) 5 SC

…………………….D…………………….

38 at 42 and Orakosim v. Menkiti (2001) 5SCNJ 1 at 10; (2001) 9 NWLR (Pt. 719) 529, this court re-stated the position of law on this unequivocally that if the original notice of appeal was defective, no additional grounds of appeal could be hung on it, in view of the fact that there being no appeal, in the first place, the additional ground will have no appeal to hang on. Tobi, JSC, at pages 26-27 stated in addition –

“The noun “addition” means adding numbers together.The adjective “additional” involves the idea of joining or uniting one thing to another thereby forming an aggregate and so the thing in whole exists as an aggregate.

Accordingly, one only add to an existing thing. One cannot add a non-existing thing. It is both a legal and factual impossibility. – This is because one can only add something to something. One cannot add something to nothing. (Italics supplied for emphasis)”

See Macfoy v. UAC Ltd. (1961) 3 All ER 1169, where Lord Denning stated that one cannot place something upon nothing and expect it to stay.

My Lords, there is only one course open to us in this appeal.The appellant had filed, as of right, a notice of appeal in clear disobedience of the unambiguous provisions of section 27(2)(b) of the Supreme Court Act. The original notice of appeal is therefore invalid, null and void. In law the void and invalid notice of appeal is a non-existing thing. It follows therefore that the “amended notice of appeal”, an attempt to add something to nothing, is, reciprocity,also a nullity – being a futile attempt to regularize and incompetent appeal. This appeal, including the grounds of appeal and the two issues formulated for its determination by the parties herein from the incompetent appeal, is also incompetent.

…………………….E…………………….

It is only a valid and or competent notice of appeal that activates the jurisdiction of an appellate court. A notice of appeal that is void ab initio, is invalid and incapable of activating the jurisdiction of an appellate court. The law is settled that an appellate court has the inherent jurisdiction to raise the issue of jurisdiction suo motu. Aderigbeye v. Abidoye (supra) at 27.I have done just exactly that here in this appeal.

I will proceed no further in the appeal. An incompetent appeal suffers one natural consequential fate – its liability to be struck out for incompetence. Accordingly, this appeal the notice of which was filed out of time, as of right, on 9 May, 2017, shall be and is hereby struck out.

Appeal struck out.

RHODES-VIVOUR, J..C.: I had the advantage of reading in draft the leading judgment delivered by my learned brother, Eko, JSC. I am in full agreement with his Lordships conclusions that the appeal should be struck out for being incompetent. Section 27(2)(b) of the Supreme Court Act states that:

(2)The periods prescribed for the giving of notice of appeal or notice of application for leave to appeal are –

(b)in an appeal in a criminal case, thirty days from the date of the decision appealed against.

Judgment was delivered on 15 February 2017, while the notice of appeal against that judgment was filed on 9 May 2017.The appellant is expected to file an appeal within 30 days, counting from 15 February 2017. It is clear that filing his notice of appeal on 9 May 2017 is not within 30 days from 15 February 2017.

…………………….F…………………….

The notice of appeal was filed out of time. It is incompetent, it could have been made competent if an application for extension of time to appeal was filed and granted but this was never done, so the notice of appeal is incompetent, dead and buried.

A notice of appeal is the originating process in an appeal.Once it is incompetent it remains so, and the court no longer has jurisdiction to hear the appeal. The appeal would be struck out being incompetent.

It is for this, and the more detailed judgment of Justice Ejembi Eko, JSC that I too strike out the appeal.

HON. NWEZE, J.S.C.:

SANUSI, J.S.C.: I agree entirely with the reasoning and conclusion arrived at by my noble Lord Ejembi Eko, JSC in the lead judgment he prepared and just delivered. I too will strike out this appeal for being incompetent same being triggered or prompted by an incompetent notice of appeal for failure to file such notice within the time span prescribed by section 27(2)(b) of the Supreme Court Act. The notice of appeal was filed out of time and therefore is and it remains incompetent due to effluxion of time in filing same.

The law is trite, that where is defect in the notice of appeal which is the originating process, such notice becomes incompetent. The court therefore lacks jurisdiction in entertaining and determining it. See Aderigbigbe v. Abidoye (2009) LPELR-140(SC), (2009) 10NWLR (Pt. 1150) 592.

In the result, the appeal is incompetent and is struck out by me.

ABBA AJI, J.S.C.: I was opportuned to have read in advance the lead judgment just delivered by my brother, Ejembi Eko, JSC. I am in

…………………….G…………………….

agreement with the reasoning and conclusion reached by him to strike out the appeal.

The appellant was charged with the offence of kidnapping,tried, convicted and sentenced to life imprisonment; same affirmed by the lower court, hence this appeal. The issues crafted for determination are:

1.Whether the court below was right when it failed to expunge from the record the computer-generated evidence (exhibits C and F3) on which the learned trial court heavily relied to convict and sentence the appellant for the offence of kidnapping when the admission of the said evidence ran contrary to the mandatory provisions of section 84(4) of the Evidence Act, 2011 regarding computer-generated evidence.

2.Whether the learned trial Judge was right in his approach, findings and conclusions reached on the evidence adduced at the trial by which he convicted the appellant of the evidence of kidnapping?

In order not to dissipate time and fritter away, I will pitch my tent with my learned brother on his consideration of the notice of appeal which the appellant filed in clear disobedience to section 27(2)(b) of the Supreme Court Act. By the record, the original notice filed is incompetently invalid. Having realized the incompetence,the appellant’s learned counsel sought to regularize same by filing an amended notice of appeal.

Any process attendant to incompetent notice of appeal including brief of argument is equally incompetent. With the finding that the said original notice of appeal cannot in law be said to have existed, it follows that what is void, or non-existent in law cannot be validly amended. That being the case, I hold that the purported amended notice of appeal was an exercise in futility, and could not have “breathed life” into the fundamentally defective

…………………….H…………………….

original notice of appeal. See Per Onnoghen, JSC in Co-operative & Commerce Bank Plc & Anor. v. Ekperi (2007) LPELR-876(SC),(2007) 3 NWLR (Pt. 1022) 493.

The appeal lacks merit and substance to be sustained. It is struck out also by me.

Appeal struck out.

Representation

Emeka Obegolu, Esq. (with him, Ononye Princess James,Esq.) – for the Appellant

O. F. Nnorum (Senior State Counsel, Ministry of Justice, Anambra State) – for the Respondent

Judgment

EBIOWEI TOBI, J.C.A. (Delivering the Leading Judgment) : The Appellant in this appeal was charged on a one count charge for the offence of Obtaining Money by false pretense punishable under Section 1(3) of the Advance Fee Fraud and Other Related Offences Act, 2006. The lower Court after taking the evidence of the parties evaluated same and the submission of Counsel, delivered its judgment on 28/02/2022 as found at pages 178-196 of the record of this appeal.

In the said judgment, the Lower Court, presided over by his Lordship, Fadawu Umaru J. of the Borno State High Court, Maiduguri Judicial Division, convicted the Appellant for the offence charged, and sentenced him to Seven years imprisonment. The lower Court which is also the trial Court specifically at pages 194-195 of the record held thus: “It is apparent from the testimonies of PW1, PW2 and PW3 that the accused made a representation that he was awarded a contract by the Danish Refugee Council when he in fact knew it to be false.

The EFCC thus have the power to investigate and prosecute the case. It is the law that once a person is induced by another through the medium of a contract to part with his money or goods such a contract ripens to obtaining by false pretence. See EBGUE V. FEDERAL REPUBLIC OF NIGERIA (2020) 11 NWLR (Pt. 1734) 103 at 129 to 130. I hold that the act of the accused is a criminal act and the EFCC has the power to investigate and prosecute this case. I hold that the EFCC did not act as a debt recovery agency in this case. This issue is therefore resolved in favour of the Prosecution.

On the whole, I hold that the Prosecution has proved the guilt of the accused person beyond reasonable doubt. Consequently, the Court hereby finds you Isaac Harami Ndahi guilty and accordingly convict you for the offence of obtaining under false pretence under Section 1(3) of the Advance Fee Fraud and Other Related Offences Act 2006.’’ It is this judgment that the Appellant is appealing against. The Appellant filed a Notice of Appeal on 29/3/2022 of 4 grounds found at pages 197-200 of the record.

Although, the fact that culminated into this appeal are not complicated, it is however, the application of the law to those facts that have thrown up some challenges in the case and indeed this appeal.

The case of the Respondent in the lower Court presented through PW1, PW2 and PW3 is that one Engineer Abba Aji Monguno, the nominal complainant wrote a petition against the Appellant to the Economic and Financial Crimes Commission (EFCC) on 6/6/2020, alleging that the Appellant deceived him into parting with the sum of Three Million Naira (N3,000,000.00) as the Appellant used a fake Purchase Order purported to have emanated from the Danish Refugee Council under the guise of executing a contract which was found to be false.

This amounts to a fraudulent act which led to the arraignment of the Appellant by the EFCC, and event ual conviction and sentencing of the Appellant for the offence of Obtaining under False Pretence contrary to Section 1(3) of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006.

Conversely, the Appellant’s case is that he made no such representation to the PW1, although, he admitted borrowing the sum of N3,000,000.00 from the nominal complainant, who is the father of PW1 which he could not pay back because thieves burgled his house and took the sum of Six Million Naira (N6,000,000.00) from which the payment to the Appellant should have been made. While not denying that he took money from the nominal complainant, the Appellant denied vehemently that he made a representation to PW1 that he needed the money to execute a contract.

The lower Court did not believe him and therefore, convicted and sentenced him on the ground that the Respondent had proved his case beyond reasonable doubt. Upon filing the Notice of Appeal, and compilation and transmission of the record to this Court, the Appellant filed his brief through his counsel, Ibrahim Haruna Ngada Esq., wherein he formulated 3 issues for determination viz: 1. Whether oral evidence of contents of a document that was rejected in evidence can be relied upon by the trial Court. 2.

Whether the burden of proof beyond reasonable doubt for the offence of obtaining money under false pretence has been discharged by the Respondent at the trial Court to warrant the conviction and sentence of the Appellant. 3. Whether in the case of obtaining by false pretence, the burden of proof shifts to the Appellant to prove his innocence.

Arguing the first issue, Appellant’s Counsel submitted that the lower Court relied absolutely on the oral evidence of PW2 who stated that his investigation revealed that there was no contract and the money transferred to the Appellant’s account was used for a different purpose by sending the money to different accounts, making cash withdrawal and settling premature loans.

Learned counsel further submitted that PW3’s evidence that he analyzed the statement of account of the Appellant which revealed that the Appellant spent the money for purposes the money was not taken was rejected in evidence, and this cannot be relied upon by the Court to convict the Appellant, citing in reliance Alam Oparaji & Ors Vs. Nwosu Ohanu & 7 Ors (1999) 9 NWLR(Part 618) page 270 at 307, Dr. Chris Nwabueze Ngige Vs. Mr. Peter Obi & 449 Ors (2006)14 NWLR(Pt.999).

It is the further submission of counsel that the evidence of contents of a document is not admissible save the document itself, as provided for by Section 125 of the Evidence Act 2011 and the decision of the Court in General Sani Abacha & 3 Ors Vs. Chief Gani Fawehinmi (2000) 6 NWLR (Part 660) Page 228 at 295. Learned counsel submitted further that the trial Court approbated and reprobated at the same time when it rejected the document, but admitted the oral evidence over the document in convicting the Appellant.

Learned counsel urges this Court to resolve the first issue in favour of the Appellant. On issue 2, Learned Appellant’s counsel submitted that the burden of proof of a criminal charge is on the prosecution which is proof beyond reasonable doubt, Learned counsel referred this Court to a plethora of authorities, among which are: The State V. Nathaniel Okpala (2012) 3 NWLR (Part 1287) page 388 at 400-401 paras H-D, Enesi Lukman Abdullahi Vs. The State (2008)17 NWLR (Part 1115) page 203 at 216 Para H, Sabina Chikaodi Madu Vs. The State (2012)15 NWLR (Part 1324) Page 405 at 454-455 paras H-B.

It is the further submission of Counsel that the inability of the nominal complainant, Engr. Abba Aji Monguno to testify, and the none tendering of the purported fake or false Purchase order by the Respondent in the trial Court made the decision of the Court untenable. Learned Appellant’s counsel anchored this submission on the evidence of PW1 at page 162 line 17 of the record to the effect that no document was ever given to the nominal complaint by the Appellant.

On Exhibit B, Learned Counsel submitted that it is documentary hearsay and that by Section 38 of the Evidence Act 2011, is inadmissible and not to be relied upon by the Court. He also submitted that the evidence of PW1 was mere allegations and suspicions and PW2 and PW3 inability to investigate the robbery incidence that affected the Appellant is fatal to the case of the Respondent and the decision of the Court.

The Respondent according to counsel is unable to prove beyond reasonable doubt the ingredients of the offence the Appellant was charged for and therefore, the conviction and sentence of the Appellant was wrong. ​ In his effort to further extricate the Appellant from the rope of conviction on his neck and the sentence, Learned Appellant’s Counsel submitted that the evidence of the Respondent’s witnesses could not establish the offence, and the investigation was casual as PW2 and PW3 admitted not writing to the Danish Refugee Council to confirm whether there was a fake order or even if the said Ibrahim Mbasuwa was a contractor as explained by the Appellant.

He urged this Court to hold that there was no false Pretence. Learned Appellant’s Counsel did not only submitted that the Respondent could not establish false pretence and the element of fraud, but also that the case of the Respondent is based purely on mere suspicion which has no place in criminal liability referring to University of Calabar V. Franklin C. Ugochukwu & 9 Ors (2007)17 NWLR (Part.1063) page 248 at 264 paras B-G.

On the final issue, Learned Counsel submitted that the burden of proving guilt is on the Respondent and this burden does not shift, relying on Federal Republic of Nigeria Vs. Mohammed Usman & Anor (2012) 8 NWLR (Part 1301) page 141 at 156-157 paras H-A, Corporal Desmond Ononuju Vs. The State (2014) 6 NWLR (Part1409) page 345 at 389-390 paras G-A.

It is the submission of counsel that the trial Court shifted the burden to the Appellant to prove his innocence when it asked him to call his friend, Ibrahim Mbasuwa to tender the document from Danish Refugee Council, or any document from the police or call a neighbor to prove that the Appellant’s house was burgled. Learned Counsel for the Appellant finally urged this Court to allow the appeal, set aside the judgment of the trial Court, discharge and acquit the Appellant.

The Respondent through Ojogbane Amade Johnson Esq., filed its brief on 05/7/2022 and therein formulated a sole issue for determination viz; Whether the learned trial judge was right to have convicted the Appellant on a one-count charge of obtaining under false pretense and sentenced to seven years imprisonment under Section 1(3) of the Advanced Fee Fraud and Other Related Offences Act 2006.

In his submission on this sole issue, learned Respondent’s Counsel invited this Court to take judicial notice of the combined effects of Sections 1(1) (a), and Section 20 of the Advanced Fee Fraud and Other Offences Act, 2006 pursuant to Section 112 of the Evidence Act 2011, together with the case of Brilla Energy Ltd. Vs.

F.R.N (2018) NWLR part 1645, while listing the ingredients of the offence of obtaining by false pretense, and urged this Court to dismiss the appeal. ​ In respond to the submission of the Appellant in paragraphs 4.1.1 and 4.1.2 of his brief, the learned Respondent’s counsel submitted that PW2 and PW3 testified as operatives of the EFCC, and were competent to testify as their evidence were based on their investigation, and such evidence cannot be hearsay, citing Interdrill (Nig) Ltd Vs. United Bank for Africa Plc (2017) ALL FWLR (pt.904) SC Page 1177 at 1193 paras E-H.

Relying on the evidence of PW1, PW2 and PW3, the documents tendered in Court, learned Respondent’s Counsel submitted that the Respondent has discharged the burden placed on it by law to prove the guilt of the Appellant beyond reasonable doubt which its need not prove by a host of witnesses. It is the further submission of learned counsel that the case of Dr. Chris Nwabueze Ngige Vs. Mr. Peter Obi & 449 Ors (2006)14 NWLR (Pt. 999) cited by the learned Appellant’s counsel was irrelevant as the trial judge did not rely on the rejected document in his judgment.

Learned Respondent’s Counsel urged this Court to take judicial notice of Sections 1,3,4,5, 6, 7 and 122(2)(a) of the Evidence Act 2011 which imposes an obligation on the Court to admit evidence and facts that are relevant to the fact in issue which was relied upon by the trial Court. Learned Counsel also referred this Court to pages 163-165 of the record and further reviewed the evidence of PW1 and PW2 while submitting that Exhibit B does not amount to documentary hearsay.

Learned Counsel urged Court to dismiss the appeal and affirm the decision of the trial Court. ​ The submissions of counsel on behalf of parties to this appeal revealed the precise nature of the facts of the case. The Appellant was charged, tried and convicted for an offence contrary to and punishable under Section 1 (1)(b) and 1(3) of the Advance Fee Fraud and other Related Offences Act, 2006.

The charge in summary is that the Appellant made a representation which he knows to be false to the effect that he had a contract or a Purchase Order from Danish Refuge Council, upon which he took N3,000,000 from one Egnr Abba Aji Monguno for the purpose of executing the contract which was alleged to be faked and probably non-existing. In simple language, the Appellant allegedly collected the said money on false Pretence. The lower Court subjected the Appellant to full trial, took evidence, and finally convicted and sentence the Appellant for the offence charged.

The Appellant is now challenging his conviction on the premise that the Respondent could not prove the offence for which he was charged. Before I look at the merit of this appeal, I should reproduce the provision of the law the Appellant was charged, convicted and sentenced for.

The section provides thus: “Notwithstanding anything contained in any other enactment or law, any person who by any false pretence, and with intent to defraud – (a) obtains, from any other person, in Nigeria or in any other country for himself or any other person; or (b) induces any other person, in Nigeria or in any other country, to deliver to any person; or (c) obtains any property, whether or not the property is obtained or its delivery is induced through the medium of a contract induced by the false pretence, commits an offence under this Act… (3) A person who commits an offence under Subsection (1) or (2) of this Section is liable on conviction to imprisonment for a term of not more than 20 years and not less than seven years without the option of a fine.” From the above provision, the prosecution must prove the element of false pretence with the intention to defraud against a defendant for any conviction to stand.

See Ikpa vs State (2017) 4 NWLR (pt 1609) 175, Onwudiwe vs FRN (2006) LPELR-2715 (SC), Adeniji vs FRN(2021) LPELR-52818 (CA). The trial Court had convicted and sentenced the Appellant which translate to mean that the Court was satisfied with the evidence before it that the Respondent had proved the ingredient of the offence beyond reasonable doubt by either direct evidence, circumstantial evidence, and or confessional statement.

My duty in this appeal is not to disturb the finding of facts by the trial Court but rather to inquire whether the decision of the trial Court is correct based on the facts before it, except and of course, the finding was perverse. I will interfere to do justice if the finding is perverse. See Siwoku vs Fasakin (2022) 12 NWLR (pt 1844), Blessing vs FRN (2015) 13 NWLR (pt 1475) 1. This is because the duty of any Court is to do justice and by this, substantial justice and not technical justice. This is sacrosanct in this Court and indeed any Court of law.

See Nzekwe vs Anaekwenegbu (2019) 8NWLR (pt 1674) 235, Akpan vs Bob (2010) 17 NWLR (pt 1223) 421, Ogunyade vs Oshunkeye (2007) 15 NWLR (pt.1057) 218. In doing so, I also must make a point very clear which is that, it is of no moment to inquire on the evidence as to whether the Appellant’s house was burgled into and the sum of N6,000,000.00 stolen. Also from the facts of the case and the charge against the Appellant, it is not relevant at all whether the Appellant paid back the money or the reasons he could not pay back.

The offence is related to when and why the Appellant took the money from PW1’s father and maybe, what he did with the money but certainly, not whether he has paid or why he has not paid. All the reference in the judgment and the submissions of counsel on whether the case of the burglary was reported to the police and on whom lies the burden to prove that is a completely out of place here. I certainly will not engage in such a wasteful exercise.

I will rather deal with issues relevant to this appeal. ​ In this regard, I wish to adopt the three issues by the learned Appellant formulated ’s counsel in his brief. These issues, to my mind, are apt and covered the complaint contained in the grounds of the Appeal. However, before I do so, I will state some general principle of criminal law that will assist me in deciding this appeal. Whether I will allow or dismiss this appeal depends solely on whether the trial Court applied the established principle of criminal law in deciding the case before it.

I will not be breaching any law if I take us back to an undergraduate criminal law class to refresh our memory on the established criminal law principles. It is a settled principle of criminal law as stated by the Appellant that for an accused to be convicted for an offence, the burden to prove the guilt lies with the prosecution, in this instance, the Respondent.

The point I am trying to make is that the burden of proof in criminal cases is clearly and squarely rest on the prosecution (the Respondent in this appeal), and this burden does not shift and the standard required is beyond reasonable doubt. See Kanu vs. A.G. Imo State (2019) 10 NWLR (Pt. 1680) 369, Almu vs. State (2009) 10 NWLR (Pt. 1148) 31, Charles Egbirika vs. State NSCQR Vol. 57 2004 p. 457, Chukwuemeka Agugua vs. The State (2017) 10 NWLR (Pt. 1573) 254, State vs. Yahaya (2019) NWLR (Pt. 1690) 397 @ 416.

I must hasten to also add that when the Appellant makes an assertion the burden to prove that assertion falls on him. This does not mean that the Appellant has a duty in law to prove his innocence. He certainly does not. That is why the fact that an accused lied cannot be leveraged by the prosecution to establish his case. See Okereke vs State (2016) 5 NWLR (pt. 1504) 107.

The duty on the Respondent to prove that the Appellant is guilty of the offence he is charged for must be either by direct evidence, circumstantial evidence or confessional statement. See State vs Sadiq (2022) 5 NWLR (pt 1824) 413, Okiemute vs State (2016) 15 NWLR (pt. 1535) 297.

Once again and for the avoidance of doubt, I must state that the burden to prove that the Appellant committed the offence he was charged for is solely on the shoulders of the Respondent. The standard of proof unlike civil cases is not a balance of probability but a very high probability which the law refers to as proof beyond reasonable doubt.

Proof beyond reasonable doubt does not mean beyond all shadow of doubt or beyond all reasonable doubt but rather, proof that any reasonable man will be right to agree with the fact that the accused committed the offence because it is compelling and convincing with no room for any serious or substantial doubt. If the doubt is just a fanciful doubt, that is, doubt that does not affect any of the ingredients of the offence, the prosecution would not be said to have proved the case beyond reasonable doubt. I will just refer to one or two cases here. In Ankpegher vs.

The State (2018) 1 NWLR (Pt. 1631) 484, the apex Court per Okoro, JSC held: “Both counsel representing the appellant and respondent respectively have admirably stated in their respective briefs of argument the legal meaning of the phrase proof beyond reasonable doubt and I commend them for this agreement even though they disagree on the quantum and quality of evidence to reach that standard. For the avoidance of doubt, I shall restate, though briefly the meaning of proof beyond reasonable doubt.

In all criminal trials, the burden is on the prosecution to establish or prove the essential ingredients of the offence which an accused person is charged with beyond reasonable doubt, and the prosecution will readily achieve this if it can assemble credible, cogent and believable/or reliable evidence against the accused person. Thus, proof beyond reasonable doubt does not mean proof beyond all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence. It does not mean proof beyond all shadow of doubt or proof to the tilt.

As was stated by Lord Denning J, in Miller v Minister of Pensions (1947) 2 All ER 372, a case which has been severally relied upon by Courts in Nigeria, it does not mean proof beyond the shadow of doubt. The distinguished and revered jurist observed: The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong as to leave only a remote possibility in his favour which can be dismissed with one sentence – of course it is possible but not in the least probable the case is proved beyond reasonable doubt.

See also Nwaturuocha v. The State (2011) 6 NWLR (Pt.1242) 170, Smart v. The State (2016) 1-2 SC (Pt.11) 41, (2016) 9 NWLR, (Pt.1518) 447, Oseni v. The State (2012) LPELR-7833 (SC), (2012) 5 NWLR (Pt.1293) 351, Hassan v.The State (2016) LPELR-42554 (SC). In The State v. Onyeukwu (2004) 14 NWLR (Pt.813) 340, this Court held that the expression beyond reasonable doubt is a concept founded on reason and rational and critical examination of a state of facts and law rather than in fancied whimsical or capricious and speculative doubt.

From all that has been said above, it has to be noted that there is no burden on the prosecution to prove its case beyond all doubt or to the tilt. It is just to establish the guilt of the accused person by credible, cogent, reliable and believable evidence.” Similarly in Nwaturuocha vs. State (2011) 6 NWLR (Pt. 1242) 170, the apex Court held: “Proof beyond reasonable doubt is not proof to the hilt. It is not proof beyond all iota of doubt.

One thing that is certain is that where all the essential ingredients of the offence charged have been proved or established by the prosecution, as done in the instant matter, the charge is proved beyond reasonable doubt. Proof beyond reasonable doubt should not be stretched beyond reasonable limit.” The criminal justice system will rather let 10 guilty people go scot-free than for one innocent person to be wrongly convicted. This is why conviction would not be based on suspicion no matter how grave but on clear evidence pointing to the accused as the person who indeed, committed the offence.

SeeIgbikis vs State (2017) 2-3 S.C. (pt 1) 78, State vs Ajayi (2016) LPELR-40663(SC). In Udor vs State (2014) LPELR-23064(SC) to drive home this point the apex Court held: “The law is indeed trite that suspicion, no matter how strong it is, cannot take the place of legal proof. Items of evidence raising suspicion, which put together, do not have the quality of being corroborative evidence to ground any conviction for a criminal offence. See the State v. Ogbubunjo (2001) 2 N.W.L.R. (Pt.698) 576.” Per MOHAMMED, J.S.C.

This further buttress the legal principle that in a criminal trial, once there is doubt in the case of the prosecution, it should be resolved in favour of the accused person. See Bassey vs State (2012) 12 NWLR (pt 1314) 209, FRN vs Abubakar (2019) LPELR-46533(SC). Let me be quick to add that for the doubt to be relevant it must be material that is to say it must affect or relate to the ingredient of the offence, that is, it must make a difference in the case to determine whether the accused is guilty or not. See Arfo vs FRN (2022) LPELR-58043 (CA).

Let us return from our undergraduate days and specifically address the issue. In this respect, it is very important to roll out the ingredients of the offence the Appellant was charged for in the lower Court. I had mentioned above that clearly the Respondent would have proved that there was false pretence with intention to defraud. The law under which the Appellant was charged defined what will amount to false pretence.

I quote same as follows in Section 20 of the Interpretation Section of the Act as follows: “‘false pretence’ means a representation, whether deliberate or reckless, made by word, in writing or by conduct, of a matter of fact or law, either past or present, which representation is false in fact or law, and which the person making it knows to be false or does not believe to be true.” To amount to an offence of obtaining by false pretence, under this section as expressed in so many cases, the Respondent ought to prove the following ingredients as stated in Ezeani vs FRN (2019) LPELR-46800(SC) where the apex Court held as follows: “Appellant was charged with the offenses of conspiracy and obtaining by false pretences contrary to Section 1(1) (a); 1 (3) and 8 (a) of the Advanced Fee Fraud and other Fraud Related Offences Act Cap A6 Laws of the Federation of Nigeria 2004.

The law states as follows: “Section 1: Obtaining property by false pretences etc. Section 1(1): Notwithstanding anything contained in other enactment or law, any person who by any false pretence, and with intention to defraud: (a) Obtains from any other person in Nigeria or in any other country for himself or any other person who guilty of an offence under this Act… Section 1 (3): A person who is guilty of an offence under Subsection (1) or (2) of this Section is liable on conviction to imprisonment for a term of not less than ten years without the option of a fine….

On the counts of obtaining by false presence, the transaction has shown clearly as follow: 1. That there was a pretence. 2. That the pretence emanated from the accused persons including the appellant. 3. That the pretence was false. 4. That the appellant and his co-accused person knew that it was false. 5. That there was an intention to defraud 6. That the monies obtained from the PW1 was capable of being stolen, and 7.

That the appellant induced the owner of the money to transfer his whole interest in the property……” Per OKORO, J.S.C One more case directly on the ingredients of the offence will not hurt. This is the case of Darlington vs FRN (2018) 11 NWLR (pt 1269) 152, the apex Court held:

“The offence of obtaining by false pretence created by Section 1(1)(a) of the Advance Fee Fraud and other Related Offences Act, 2006 is constituted or committed upon the existence of the following facts

I. A pretence is made by way of representation.

II. From the accused person. III. To the person defrauded. IV. The representation is a pretence. IV. The accused knows or has reason to know that the representation is false or does not believe in truth of the representation. VI. The accused makes the false representation with intent to defraud the victim to whom the false representation was made. VII. Consequence of the false representation the accused induced the victim to deliver or transfer some property or interest in the accused or some other person. VIII. The property transferred is capable of being stolen i.e. is as portable.

These elements of the offence, under Section 1(1)(a) of the Advance Fee Fraud and Other Related Offences Act, are affirmed by this Court as the elements constituting the offence: ONWUDIWE v. FRN (2006) ALL FWLR (Pt.319) 774 at 779-780; (2006) 10 NWLR (Pt.988) 382. In fraud generally, there is always element of deceit or intent to deceive flowing from the fraudulent action or conduct.” Per EKO, J.S.C.

On the strength of the above, the decision of the lower Court will only be affirmed if those elements are proved beyond reasonable doubt by either direct evidence, circumstantial evidence or through a confessional statement. At this point, I will reproduce the issue for determination in this appeal in the Appellant’s brief which I hereby adopt. The issues are: 1. Whether oral evidence of contents of a document that was rejected in evidence can be relied upon by the trial Court. 2.

Whether the burden of proof beyond reasonable doubt for the offence of obtaining money under false pretence has been discharged by the Respondent at the trial Court to warrant the conviction and sentence of the Appellant. 3. Whether in the case of obtaining by false pretence, the burden of proof shifts to the Appellant to prove his innocence. RESOLUTION ISSUE ONE On issue 1, I am of the opinion that the decision of the trial Court was not based on rejected evidence as the Appellant’s counsel submitted.

It is trite law that a document rejected by a Court has no life and cannot be relied upon by any Court in arriving at a decision. The rejected document is of no relevance whatsoever in law and lacks probative value. See Amgbare vs Sylva (2009) 1 NWLR (pt 1121) 1, Airtel Network Ltd vs Plus Ltd (2020) 15 NWLR (pt 1747) 235, Emokpae vs Stanbic-IBTC P.M Ltd (2015) 17 NWLR (pt 1487) 57. I have gone through the judgment, and I am comfortable in holding that the decision of the Court was not based on the rejected document but rather on the evidence of PW1, PW2 and PW3.

What constitute evidence before a Court are oral, documentary or real evidence, and any of the parties before a Court can establish his case by any of the evidence listed above.

I am not aware of any law that says that oral evidence can only be relied upon when it corresponds with a document.

Although, in law, a type of evidence for instance, documentary evidence, can carry more weight than oral evidence, but a party can still establish his case by oral evidence alone in the absence of any documentary evidence. The fact that the document was tendered and rejected does not make any oral evidence on the content of the document inadmissible as Appellant’s counsel wants us to believe.

The position of Appellant’s counsel in this front, is new learning to me, a point I do not want to learn because, it does not represent the correct legal position. Although there is a common saying that ‘we learn everything’, but certainly not what does not represent the correct and current legal position in an issue.

What the law requires is that once a document has been tendered and admitted, no oral evidence will be allowed which is at variance with the documentary evidence. See Ibrahim vs Abdallah & Ors (2019) LPELR-48984(SC), Bello vs Idris (2022) LPELR-56730 (CA).

In the instant case, there is no documentary evidence which can be compared with the oral evidence to show any variance. The Respondent’s witnesses are at liberty to testify even if the evidence is on all force with the content of the rejected document. It is only wrong if the Court base its judgment on the document. In this appeal, the judgment is based on the oral evidence and not the rejected document. To buttress this point I will quote again the decision of the trial Court at pages 194-195 of the record.

This is what the Court said: “It is apparent from the testimonies of PW1, PW2 and PW3 that the accused made a representation that he was awarded a contract by the Danish Refugee Council when he in fact knew it to be false. The EFCC thus have the power to investigate and prosecute the case. It is the law that once a person is induced by another through the medium of a contract to part with his money or good, such a contract ripens to obtaining by false pretence. See EBGUE V. FEDERAL REPUBLIC OF NIGERIA (2020) 11 NWLR(Pt. 1734) 103 at 129 to 130.

I hold that the act of the accused is a criminal act and the EFCC has the power to investigate and prosecute this case. I hold that the EFCC did not act as a debt recovery agency in this case. This issue is therefore resolved in favour of the Prosecution. On the whole, I hold that the Prosecution has proved the guilt of the accused person beyond reasonable doubt.

Consequently, the Court hereby finds you Isaac Harami Ndahi guilty and accordingly convict you for the offence of obtaining under false pretence under Section 1(3) of the Advance Fee Fraud and Other Related Offences Act 2006.’’ There is nothing in this portion of the judgment or any part of the 25 pages judgment which suggest that the lower Court relied on the rejected document. While I am firmly of the opinion that the decision of the trial Court is not based on the rejected document, I will therefore, resolve this issue in favour of the Respondent.

ISSUES TWO & THREE I will address issues 2 and 3 together. The question are whether the Respondent proved its case at the trial Court beyond reasonable doubt and whether the Court appropriately placed the burden of prove in the right place? I have stated above the ingredients of the offence the Appellant was charged with, and for which he was convicted and sentenced. I have also stated that the Respondent has a duty in law to prove beyond reasonable doubt all the ingredients of the offence.

The Respondent case at the trial Court as prosecution is that, the Appellant made a false presentation to the father of the PW1 that he has a contract with Danish Refugees Council which made him depart with N3,000,000.00 to enable the Appellant execute the contract. By the wordings of the charge sheet, the Appellant was alleged to have used a fake purchase order to carry out this deceptive act. The fake purchase order was falsely and fraudulently presented as original to PW1’s fatherwhich he acted on.

This the Appellant denied of ever presented any purchase order to the nominal Complainant, Engineer Abba Aji Monguno but rather, told him to borrow to the Appellant, some money for him to carry out a contract awarded to his friend for which the said Abba Aji Monguno was to get Three Hundred Thousand Naira (N300,000) as interest or profit from the loan. The question here therefore is whether the evidence before the trial Court lane toward obtaining money by false pretence, based on the alleged fake purchase order or on the fact that it was a loan given to the Appellant.

It is my opinion that if the trial Court had agreed with the Appellant that it was a loan he secured from Engr. Abba Aji Mongunor, the decision will not have gone the way it did. The decision went the way it did because the Court is of the view that the Appellant made a false representation to make the nominal Complainant part with his N3,000,000.00. What is paramount here therefore, is the status of the purchase order presented to the nominal Complainant.

The question therefore is, whether there is sufficient evidence before the trial Court that such a representation was made by the Appellant to Abdulwahab Abba Aji, the PW1 or his father, the nominal complainant. I must state without any equivocation that the Respondent has the duty and indeed burden to show before the Court that a purchase order was indeed, shown to the nominal complainant which turned out to be fake. This is a key factor in determining this appeal.

The operative word is ‘fake’. For anything to be fake, there must be an original. The purchase order will be declared fake after comparing same with the original.

I must make the point the Appellant has ably made through his counsel that there is no document before the Court indicating or looking like a purchase order. The Appellant has also rightly in my view challenged the investigation of the PW2 and PW3 as not being thorough when it did not contact Danish Refugee Council to know whether there was a contract given to either the Appellant or the friend of the Appellant whom the Appellant said got the contract from. The fact that the Appellant was unable to produce his friend Ibrahim Mbasuwa is not damaging to his case.

This will only become relevant if the Respondent had produced or given satisfactory evidence that the Appellant presented fake purchase order to the PW1. The statement written by the Appellant which are Exhibits A, A1-A5 are not admission or confessions as they deny the offence the Appellant was charged for. The Appellant admitted receiving the money from PW1 but as loan, and not on any representation of falsehood with intention to defraud. In the circumstance, the burden is on the shoulders of the Respondent to have shown before the Court the ingredients of the offence.

I have gone through the judgment of the trial Court, I am unable to see where the Court gave reasons for the finding that all the ingredients of the offence has been proved. With due respect, no thorough evaluation was made of the evidence before the trial Court. I will at this point look at the entire record of the appeal viz- vis the evidence of the Respondent in determining whether the lower Court was right in its findings. In doing so, I am conscious of the fact that I will not interfere with the finding of the lower Court except it is perverse.

The case of the Respondent is founded on the evidence of PW1, PW2 and PW3. The evidence of PW1, Abdulwahab Abba Aji is found at pages 160-163 of the record. The PW1 made no mention of any purchase order presented to him talkless of its being fake.

His viva voice evidence at pages 160 and 161 of the record on the point states thus: “The accused called me sometime around 5th September, 2019 and asked me if I have money as he has secured a contract with Danish Refugee Council and that he need the sum of N2,000,000.00k…On 18/9/2019, that is after two weeks that the accused was to return the money the accused asked me to add N1,000,000.00.00K on the basis that the contract he is executing is at 80% completion and that he needs the N1,000,000.00k to complete the contract on the same terms and condition.” There is nothing in the above evidence that talked about any Purchase Order presented to the PW1.

This is important because the case of the Respondent against the Appellant is principally founded on alleged fake purchase order. The witness gave no evidence of purchase order presented to the father of PW, that is the nominal complainant, to convince him part with the money. PW2 is Emmanuel Emeka Ibeneme, an operative of the EFCC who was part of the team that investigated the petition against the Appellant marked as Exhibit B.

The evidence-in-chief of the PW2 also made no mention of purchase order, as all the witness said as his investigation revealed that the sum of N3,000,000.00 was transferred to the Appellant by the PW1 father for the purpose of a contract which was not in existence. The Appellant used the money for other purpose instead of executing the alleged contract which was found to be non-existing. The PW2’s investigation revealed that there was no contract issued to the Appellant.

He categorically said at page 165 of the record that: “There was no contract the accused only used that medium to obtain money from the complainant by false pretence.” Under cross–examination, PW2 admitted that his investigation did not take him to Danish Refugee Council because the Appellant did not present any document. In spite of this, the Appellant was charged for obtaining money under false pretence on the premise of presenting fake purchase receipt. This is strange. PW3 is an official of EFCC who also investigated the petition against the Appellant.

His evidence found at pages 166-169, is not radically different from PW2’s evidence. All that the witness did was to analyze the response from Guaranty Trust Bank with respect to the Appellant’s bank account domiciled there, and discovered that the money the Appellant received was not used for the purpose it was received. The witness did not take part in the final investigation, and under cross-examination he said he is not ‘aware if the accused (sic) facilitated a contract. I did not partake to the conclusion of the investigation’.

The documents attached to Exhibit B only shows that the sum of N3,000,000.00 was paid to the Appellant which he did not deny. It also shows that the Appellant tried to payback some amount out of the money. There is no evidence apart from the oral evidence that the money was used for other purpose. Once again there is nothing in his evidence relating to presentation of fake purchase order. It would appear to me that the way the charge was couched is such that the falsehood is based on the allegation of presentation and using of a fake purchase order.

This implies in my view a document which is a purchase order must be tendered. None of the Respondent’s witnesses mentioned anything about purchase order or the nature of the contract they claimed Appellant told the PW1’s father he had from the Danish Refugee Council. I will now turn to the evidence of the Appellant before the trial Court. His evidence is that he told the PW1 that he needed money to join someone by name Ibrahim Mbasuwa to execute a contract.

In his testimony, Appellant said in his evidence In-Chief at page 175 of the record that: “… I told the officer that I borrowed the money to join with a friend to secure a contract. I was shown the petition which I read I told the officer I had no purchase order… I did not obtain money by false pretence.” Under cross examination, Appellant said: “The N300,000.00k told (sic) was for the purpose of executing a contract.

I did execute the contract and I have no documents for the contract.” ​ I have gone through the above evidence there is no evidence whatsoever that fake purchase order was presented which misled the PW1’s father. While PW1 evidence is that the Appellant told him he needed the money to execute a contract he got from Danish Refugee Council, the Appellant said that he told the PW1 that he needed the money to jointly execute a contract with a friend.

In the light of this conflicting evidence, it is important to know how the trial Court evaluated the evidence to come to the conclusion that the Respondent proved its case beyond reasonable doubt. By the charge, the Respondent relied on a fake purchase order which was not part of the evidence of all the parties, and that the money was not used for the purpose it was taken for. There is no clear evidence on that apart from the PW2 and PW3 saying so.

The evidence of PW2 and PW3 will be inadequate in the light of the evidence of the Appellant that he used the money for the purpose he took same from the PW1’s father. There is no cogent evidence from PW2 and PW3 to prove that the Appellant actually gave the money to the people they claimed he gave the money to different from the main purpose it was given for. Since there is no such documentary evidence may be the counsel to the Respondent would have established same through skillful cross examination which he failed and did not.

Among the three ways of establishing criminal liability, it is only by circumstantial evidence that the Respondent can attempt to prove its case against the Appellant. As I had mentioned above, the question is not whether the Appellant collected N3,000,000.00K from PW1’s father or whether it was for the purpose of executing a contract, but whether the Appellant obtained the money under false pretence with intention to defraud by presenting or using a fake purchase order. The Appellant said he jointly executed a contract with the money with his friend who he could not produce.

The Respondent’s witness especially PW2 and PW3 said there was no contract. The question is how did the Respondent’s officers know that there was no contract when their investigation did not take them to Danish Refugee Council where the Appellant claimed his friend Ibrahim Mbasuwa got the contract from. This is even on the face of the glaring evidential on record when the Appellant gave the name of the company and the name of his partner with whom he was going to execute the contract. The EFCC did not investigate this, and failed in that respect. This is fundamental.

In the circumstances of this, the benefit of doubt should have to be resolved in favour of the Appellant. The Respondent having been unable to show that a fake purchase order was shown to PW1’s father, and that the money received by the Appellant from the PW1 was used for other purpose, the trial Court was wrong to have convicted the Appellant. The burden to establish the guilt of the Appellant is on the Respondent.

However, for the Respondent to allege that the Appellant did not produce his friend, Ibrahim Mbasuwa because the Appellant feared his testimony may work against him, is to turn the law upside down by asking the Appellant to prove his innocence.

Under no circumstance in a case of this sort in our accusatorial system of criminal administration and trial is the defendant required to prove his innocence. See Okoh vs State (2014) 2-3 S.C 184. In the recent case of Ibrahim vs State (2022) LPELR 58001 (SC), the Supreme Court on this point held: “Generally, there is no duty on the accused/Appellant to prove his innocence since under Nigeria system of criminal justice, there is no question of accused proving his innocence before the law Court hence during a trial, an accused may not utter a word as he is not bound to say anything.

The duty is on the prosecution to prove the charge against the accused beyond reasonable doubt whether or not the accused says anything. See Igabele v State (2006) 6 NWLR (Pt 975) 100 at 108, Williams v State (1992) 8 NWLR (pt 261) 515 at 516-517, Section 137 Evidence Act, Alonge v Inspector General of Police (1959) NSCC 169; (1959) 4 FSC 203.

The above principle is further enhanced in the provisions of the Constitution of the Federal Republic of Nigeria, which Section 36(5) of the 1999 provides thus: “Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty provided that noting in this section shall invalidate any law by reason only that the law imposes upon any such person the burden of proving particular facts.” Per PETER-ODILI, J.S.C. I resolved issues 2 and 3 in favour of the Appellant.

It is my considered view that the trial Court was wrong to have convicted the Appellant for the offence he was charged as the Respondent was unable to prove beyond reasonable doubt that the Appellant indeed, committed the offence. No Court could even depend on circumstantial evidence to convict a person when such evidence does unequivocally point to him as the person who committed the offence.

In the absence of clear evidence that the Appellant made false representation on the existence of a contract by presenting a fake purchase order with the intent to defraud PW1’S father, the conviction cannot stand. This appeal is therefore allowed and the judgment of Fadawu Umaru J., of the Borno State High Court delivered on 28/2/2022 wherein the Appellant was convicted and sentenced to 7 years imprisonment is set aside.

I cannot in good conscience affirm the judgment. The Appellant, Isaac Harami Ndahi is hereby discharged and acquitted.

JUMMAI HANNATU SANKEY, J.C.A.: I had the benefit of reading in advance the lead judgment delivered by my learned brother, Ebiowei Tobi, J.C.A. I agree with his Lordship’s reasoning and conclusion. As has been stated in the leading judgment, the Appellant was arraigned before the lower Court on a one-count charge of obtaining money by false pretences punishable under Section 1(3) of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006. He pleaded not guilty to the charge and the Respondent adduced evidence through three witnesses in proof of the charge.

The Appellant also testified in his defence and called one witness. At the close of trial, the lower Court found the Appellant guilty as charged and sentenced him to seven years imprisonment. Dissatisfied, the Appellant filed an appeal to this Court wherein he complained on three grounds. The ingredients to prove a charge of obtaining money by false pretences punishable under Section 1(3) of the Act (supra) is as set out in the case of Ezeani V FRN (2019) LPELR-46800(SC) per Okoro JSC and Darlington V FRN (2018) 11 NWLR (Pt. 1269) 152 per Eko JSC.

The ingredients are – 1. that there was a pretence; 2. that the pretence emanated from the accused person; 3. that the pretence was false; 4. that the accused person knew it was false; 5. that there was an intention to defraud; 6. that the money obtained from the victim was capable of being stolen; and 7. that the accused induced the owner of the money/victim to deliver or transfer money or interest in property to the accused.

Upon examination of the evidence presented to the trial Court in satisfaction or proof of the above ingredients, PW1 was the son of the alleged victim, Engineer Abba Aji Monguno. His evidence was clearly less than satisfactory as he was neither the person who dealt directly with the Appellant in respect of the sum of N3,000,000.00 (Three Million Naira) received nor did he present the alleged fake/false Local Purchase Order based upon which the complainant gave the Appellant the money, at the trial Court.

PW2 and PW3 were officers of the EFCC who investigated the allegation made against the Appellant. However, apart from hearing from the complainant and taking the statement of the Appellant, which was not confessional, their investigation did not extend to the Danish Refugee Council to confirm whether or not it had a contract with the Appellant to establish the falsity or otherwise of any representation made to the complainant.

As a consequence of such shoddy investigation, the Respondent failed to establish the criminal intent of the offence alleged, also referred to as the mens rea in the actions of the Appellant when he requested and was given the sum of N3, 000, 000.00 by the nominal complainant. On his part, the Appellant did not deny receiving money from the complainant. His position however was that it was not done under false pretences, but that the money was given as a loan which he requested for to execute a contract.

Since the Respondent failed to prove otherwise, it failed to prove the charge against the Appellant. He is therefore entitled to an acquittal. It is therefore for these reasons, and for the fuller reasons in the lead Judgment, that I also allow the appeal. I abide by the consequential orders made therein.

JAMILU YAMMAMA TUKUR, J.C.A.: I read before today the judgment of my learned brother, EBIOWEI TOBI, JCA and I am in concord with his decision that the appeal has merit and should be allowed. I allow the appeal and join my brother in setting aside the judgment of the lower Court wherein the Appellant was convicted and sentenced to seven years imprisonment. The Appellant is discharge and acquitted.

Judgment

JAMES GAMBO ABUNDAGA, J.C.A. (Delivering the Leading Judgment) : The appellant and 6 (six) others were charged before the High Court of Imo State in Owerri Judicial Division with the offence of murder of one Chief (Sir) Augustine Ndukwu on 4th November 2010, contrary to Section 319 (1) of the Criminal Code, Cap 30 Vol. 11, Laws of Eastern Nigeria, applicable in Imo State. The plea of the accused persons including the appellant was taken on 31st October, 2010. The 1st accused person Uchenna Ndukwu pleaded guilty while the others, including the appellant pleaded not guilty.

Even though the 1st accused person pleaded guilty to the charge, the trial Judge in consonance with the principle of law in Criminal trial involving Capital offences entered a plea of not guilty for him. ​In the bid to prove the offence as contained in the charge, the prosecution (Respondent herein) called six witnesses and tendered the extra judicial statements of the accused persons which were admitted in evidence as Exhibits. The accused persons including the appellant entered their defence.

Thereafter counsel on both sides addressed the Court, following which the trial Court adjourned for Judgment. In the judgment delivered on 13th February, 2013, John Emesiobi and Vincent Emesiobi (2nd and 7th accused persons respectively) were discharged and acquitted, while the rest, 1st, 3rd, 4th, 5th and 6th accused persons were convicted and sentenced to death by hanging. The appellant (5th accused) is aggrieved with her conviction, and therefore filed an appeal to this Court. The Notice of appeal was filed on 11//3/13. The Notice of appeal contains two (2) grounds of appeal.

On due compilation and transmission of the record of appeal, the appellant proceeded to file her brief of argument. The brief of argument settled by her counsel, Madubuko Izuchukwu, Esq. was filed on 18/11/20 and deemed properly filed and served on 9/2/21. In reaction to the Appellant’s brief of argument, the Respondent filed her brief of argument settled by C.O. Chukwumaeze, Esq., Principal State Counsel, Imo State Ministry of Justice on 12/11/21. It was deemed properly filed on 9/2/2021. The appellant filed a reply brief on 25/1/22, and deemed properly filed on 9/2/21.

The briefs of argument were adopted on 25/01/22.

In the appellant’s brief of argument, a lone issue was distilled for determination, which is: “Whether the appellant was at home when the deceased was murdered and whether the plea of alibi did not avail the appellant.” On the part of the respondent, similarly a lone issue couched as the following was distilled for determination: “Whether by the evidence and exhibits before the Court, the trial Court was not right in convicting the appellant, her plea/defence of alibi having failed.” ARGUMENT ON THE ISSUES Learned Counsel for the appellant, in his submission referred to page 296 of the record of appeal where the learned trial Judge found that the appellant’s plea of alibi failed.

He also referred to pages 62 – 83 of the record of appeal which contains the evidence of PW1, which Counsel believes must have influenced the finding of the trial Court that the appellant’s plea of alibi failed. ​Counsel goes on to submit that the evidence of PW1 is hearsay, as the said PW1 therein narrated what DW4 (1st accused) told her. Counsel pointed out that the same DW4 (1st accused) denied all that he had told PW1 and blamed it on the fact that the police compelled him to say those things while he was in their custody.

Counsel further referred to the evidence of the IPO who was the team leader that investigated the case, whose evidence is that the appellant was arrested for an alleged phone call to the 1st accused person towards aiding his escape. Learned Counsel submitted that the appellant in her evidence raised alibi, stating that on 4/11/2020 she left the village about 7am to Owerri Stadium and returned to the village at 8pm. That at Owerri, she was at Dan Anyiam Stadium Owerri, training in handball in Owerri Grasshoppers International Stadium in preparation for Kaduna National Sports Festival.

That she left the stadium at about 11 – 12 noon and went back to her residence at No. 21, Njemanze Street, Owerri and was there till 4pm when she went back to the stadium for a second round of training up to 6.30pm. Counsel submits that from the evidence of witnesses, the appellant is a sportswoman. ​Stating the ingredients which must be proved by the prosecution in order to secure a conviction for murder, appellant’s counsel submitted that the burden of proof is beyond reasonable doubt.

The burden, he further submits does not shift from the prosecution, except in a few situations like when the accused person raises the defence of alibi, as in the instant case, and refers to the case of Madagwa v. The State (2009) ACLR Vol. 7 303 at 352 ratio 8. It is submitted for the appellant that where an accused person raises the defence of alibi on time and discharges the evidential burden by giving details of where he was at the time the offence allegedly took place, the duty to investigate it shifts to the prosecution to disprove at the trial. Counsel relies on the case of Ukwunnenyi v.

The State (1989) 4 NWLR (Pt. 114) 131 at 378 and 389. Counsel further points out that the appellant made three extrajudicial statements – on 4/11/10, 8/11/10 and 28/12/10 in all of which she maintained her defence of alibi and gave the same details of her whereabouts, and this she did in good time. ​Speaking to the issue as to whether the police investigated the alibi, counsel submitted that the investigation conducted by the police concerning the defence of alibi was lopsided, incomplete and not done in accordance with the law.

Referring the Court to the evidence of PW4 (the police team leader) who carried out the investigation, it is submitted that the first arm of the alibi raised by the appellant to the effect that she went for training at Grasshoppers-International Handball Stadium Owerri that morning appeared not to have been investigated. On the evaluation of evidence by the trial Judge and his finding that the plea of alibi failed, it is submitted by appellant’s counsel that the said finding was perverse and misdirection in law.

Counsel points out that the trial Judge found as a fact that the appellant was at the stadium and was at Njemanze Street Owerri, and refers to page 296 of the record of appeal. Counsel therefore, wondered how the defence of alibi failed.

It is therefore contended for the appellant that the inference drawn by the trial Court did not flow from the evidence of PW4 which shows that the appellant’s defence of alibi was not investigated as required by law. ​It is therefore submitted for the appellant that it is not the duty of the accused person to prove his innocence but rather it is the prosecution’s duty to discredit him and to dislodge his evidence. It is further submitted that the evidence on record did not justify the trial Court’s conclusion that the appellant’s plea of alibi failed. The Court is referred to the case of Rex v.

Falayi (2009) 8 ACLR Vol. 8 pg 490 at 503 ratio 4, and the case of Madagwa v. The State (2009) 7 ACLR Vo. 7 pg. 303 at 352 ratio 2. Further referring us to the case of Adeoti & Ors. v. State (2009) 8 ACLR Vol. 8 pg. 231 at 306, Counsel urged the Court to interfere with the findings of the trial Court as at concerns the defence of alibi because it is perverse. That the learned trial Judge failed or neglected to draw the necessary inferences or shut his eyes to the very potent facts which could have tilted the imaginary scale of justice in favour of the appellant.

It is further submitted that before a trial Court can draw an inference of the guilt of an accused, it must be sure that there is no other co-existing circumstances which could weaken such inference. This, counsel points out was not done in this case. The Court is therefore urged to allow the appeal and to set aside the conviction of the appellant. For the respondent, it is submitted that the appellant’s complaint is against the obiter dictum in the judgment and not the ratio.

That the finding of the trial Court that the plea of alibi put up by the appellant was investigated and found unproved, and that the appellant was found to be at home and made calls to the 1st accused, made her criminis participes, and therefore very much in the bargain to murder the deceased.

This, counsel submits, is the trial Court’s reason for the decision reached by the trial Court that the appellant was guilty of murder. ​Respondent’s counsel admits that from the evidence of the witnesses, it is not in issue that the appellant is a sportswoman and trains at the Dan Anyiam Handball Stadium in Owerri, Imo State. That it is also evident that the appellant lives in the village at their Awo-Mbieri in Mbaitoh LGA, and also resides at No. 21, Njemanze Street, Owerri. However, counsel submits her indisposition on the date of the crime is not conclusive of her innocence.

It is further contended that from the evidence of PW1, PW4 and the IPO, the appellant was at home on the day of the incident.

The Court is referred to pages 111 – 121 of the record of appeal. Submits that the prosecution witnesses’ evidence was not destroyed under cross examination and is therefore credible, cogent and reliable, and the trial Court relied on it. Counsel therefore submits that the appellant did not only conspire to commit the offence but actually participated in its commission.

Counsel further submitted Section 7(a) – (d) of the Criminal Code cannot be over emphasized in the circumstances as the appellant aided and abetted other persons, particularly the 1st accused (her brother) as she was placed/stationed on a look out while the 1st accused executed the killing of the deceased. Counsel also referred to the evidence of PW1 whom in the said evidence, he claimed that the appellant stopped people from entering their compound to fetch water from their borehole a week before the offence was committed.

That the said action of the appellant was in furtherance of the common purpose, that is the murder of the deceased. ​In reply to the contention of the appellant, that there was improper evaluation of evidence and the cited authorities, the respondent’s counsel disagrees and submitted that the authorities cited are not applicable. Submits that the judgment of the trial Court is unimpeachable, and not perverse. That the power of the appellate Court to interfere with the findings of fact of the trial Court is not automatic and does not arise in all circumstances.

He relies on the case of Famoroti v. FRN (2016) All FWLR (Pt. 856) 366 at 397 – 398 paras F – A ratio 7; and the case of Edilcon (Nig.) Ltd. v. UBA (2017) All FWLR (Pt. 901) 581 at 617 to 618 paras G – B, ratio 6. It is however contended that the trial Court properly discharged his judicial duty and was therefore correct in the findings of facts based on the proper evaluation of evidence. That the finding of the trial Court is therefore not perverse.

In reply to the argument of the appellant’s counsel that the defence of alibi was available to her when the evidence of the witnesses is considered together, it is submitted for the respondent that none of the witnesses testified with certainty that the appellant was not part of them and did not participate in the commission of the offence. ​In sum, counsel urged the Court not to interfere with the findings of the trial Court and to dismiss the appeal and affirm the judgment of the trial Court.

In the reply brief, the appellant appears to reinforce his argument on the non-investigation of alibi even though the appellant discharged the evidential burden placed on her to give details of her whereabouts on the date and time the offence was committed. What however appears to me to be a new issue of law is the trial Court’s finding that the appellant was a sort of linkman between 1st accused and the others spying and relaying to them over the phone the position of things. The concern of appellant’s counsel is the source of the trial Court’s finding.

Submits that the finding is based on suspicion which cannot tantamount to guilt of the appellant. RESOLUTION On a calm consideration of the arguments proffered by both counsel, I am of the humble view that the following issue is best suited for the determination of the appeal: “Whether on the totality of the evidence before the Court, the trial Court was not in error in the appellant’s conviction for the offence with which she was charged.” The trial Court convicted the appellant because it was convinced that the charge was proved. This calls to question the burden of proof.

It is settled law that the standard of proof in criminal cases is proof beyond reasonable doubt while the burden rests on the prosecution and never shifts, unless in cases in which the statute provides otherwise. I rely on the following cases – Agugua v. The State (2017) LPELR – 42021 (SC), p. 38, paras E – F, Tobi v. The State (2019) LPELR – 46537 (SC), P. 24, paras C – D, Edun & Anor. v. FRN (2019) LPELR – 46047 (SC) p. 12.

It is also settled law that there are three (3) ways in which the guilt of an accused person may be proved:- (i) By eye witness account of the commission of the offence, (ii) By confessional statement of the accused person, (iii) By circumstantial evidence. I refer to the following cases on the issue – James Afolabi v. The State (2016) LPELR – 40300 (SC). Pp. 51 – 52, paras F – B, Demo Oseni v. The State (2012) LPELR – 7833 (SC) p. 41. Paras B – C, Darlington Eze v. FRN (2017) LPELR – 42097 (SC) p. 63, paras C – E.

It is not in doubt that there is no eye witness account that the appellant committed this offence. Equally not in doubt is that there is no confession to the offence by the appellant. Therefore, the prosecution’s case against the appellant was wholly founded on circumstantial evidence. The findings of the learned trial Judge in relation to the appellant who was the 5th accused person at the trial Court is contained at page 296 of the record of appeal. Hear him: “Over now to the 5th accused Chinyere Ade Ndukwu.

Her testimony was to the effect that on 4/11/2010, she was in Owerri doing her sporting activities and came back to her village around 7pm. While at home there was trouble in the compound and she called the 1st Accused person to find out where he was and told him to come back home. She denied the charge. This woman tried to raise the plea of alibi. She supplied the details of her whereabouts on that day to be. She was at the sports stadium and at Njewanze Street came back in the evening. She admitted making call to the 1st accused but for a different reason.

In one breadth she said it was to tell him to come home for his food. In another to tell him to come home that the deceased was nowhere to be found. The prosecution investigated this and found that on that day she was home to the village and made calls to the 1st accused. Based on this, it is only evident that that plea has failed. The only option now open to the Honourable Court is to hold that she was a sort of linkman between 1st accused and the others, spying and relaying to them over the phone, the position of things.

I hold therefore that Section 7 of the Criminal Code makes her criminis participes and therefore very much in the bargain to finish the deceased. She as equally found guilty as charged.” This Court has a duty to consider the correctness or otherwise of these findings against the background of the evidence available to the Court on record. I will come to this later in the course of this judgment. ​But it is instructive at this juncture to restate the ingredients which the prosecution must prove in order to sustain a valid conviction for the offence of murder.

The ingredients, as settled in law are: (i) That the deceased had died, (ii) That the death of the deceased had resulted from the act of the accused person, (iii) That the act which caused the death or grievous bodily harm was its probable consequences. See the following cases: Maiyaki v. The State (2008) 11 SCM 49 at 39 – 60, Afosi v. The State (2013) 12 SCM (Pt. 2) 28 at 41 paras. G – I. ​It is pertinent to note that the appellant was jointly tried with other accused persons.

Of those other accused persons, the 1st accused person (Uchenna Ndukwu) a brother of the appellant had made a confessional statement in which he incriminated the appellant as having assisted to facilitate the commission of the offence. He also incriminated the other accused persons. However, he subsequently retracted the aspect of his confessional statement in which he incriminated the other accused persons inclusive of the appellant. He claimed that while in detention the incriminating statement was made out of compulsion by the police.

In the subsequent, the 1st accused person stated that he alone murdered the deceased. He restated this while testifying in his defence. In relation to the 5th accused person (the appellant, he stated thus in his evidence in his defence: “I was not communicating with 5th accused as to know if the crime had been uncovered. 5th accused is a sports woman at Sports Council and lives at Owerri.

We had no quarrel in our family between us but the deceased and PW2, Edwin Ndukwu had problem.” (See pages 162 – 163 of the record of appeal) Further, the following was recorded at page 170 of the record of appeal on the questions put to the said 1st accused (as DW4) and his answer as it concerns the appellant: “Q: Put: 5th Accused was mounted as sentry and alert you in any possible intrusion?

Ans.: Not true she was not at home.” A careful reading of the record of appeal would reveal that the findings of the trial Court in which it finds the appellant guilty as “criminis participes” is based on the earlier incriminating statement of the 1st accused person, notwithstanding its subsequent retraction. ​However, in law, the statement, whether retracted or not did not bind the appellant because she did not adopt it or admit it as true.

See the following cases which lucidly established that when two or three persons are tried together, a confession by one of them which incriminates one or the others binds him alone, unless the confessional statement is made in the presence of the others and they decide to adopt it:- Tirimisiyu Adebayo v. The State (2014) 8 SCM 34 at 65 para. 6, The State v. James Gwangwan (2015) 9 SCM 253 at 271 paras. D – G.

See also Section 29 (4) of the Evidence Act, 2011 which provides: “Where more persons than one are charged jointly with an offence and confession made by one of such persons in the presence of one or more of the other persons so charged is given in evidence, the Court shall not take such statement into consideration as against any such other persons in whose presence it was made unless he adopted the said statement by words as conducted.” All these go to show that the prosecution could only succeed in proving the guilt of the appellant based on cogent and credible evidence other than reliance on the confessional statement made by one of the co-accused persons which incriminates one or the others. ​This statement of the law therefore renders the evidence of PW1 regarding the 1st accused person’s confession made to her in which she gave the damning incriminating evidence against the appellant as narrated to her by 1st accused person (Uchenna Ndukwu) worthless in the conviction of the appellant.

The evidence of PW1, apart from a narration of a confession made by one co-accused person against another which Section 29(4) of the Evidence Act, 2011 makes it inadmissible against the appellant, it was hearsay so long as she was narrating what she claimed the 1st accused person told her. It is of course settled law that hearsay evidence is not admissible to prove any fact – Buhari & Anor. v. Obasanjo & Ors. (2005) LPELR – 85 (SC) p. 209 paras. C – D, Kasa v. State (1994) LPELR – 1671 (SC), p. 18 para. A, Ukut v.

State (1995) LPELR – 3351 (SC) p. 29, paras C – F. ​I have in the course of the treatise of the issues thrown up for consideration held that there was neither direct eye witness account of the commission of the offence by appellant or a confessional statement that she committed the offence. However, it is agreed in law that there is a presumption of correctness in favour of the judgment of a Court. Unless and until that presumption is rebutted and the judgment is set aside, it subsists and must be obeyed – Babatunde & Ors. v. Olatunji & Anor (2000) LPELR – 697 (SC), p. 15 paras. A – F, Ogene v.

Ogene & Anor. (2007) LPELR – 8156 (CA) pp. 16 – 17 paras C – E, Dahiru & Anor v. Kamale (2004) LPELR 11135 (CA), pp. 50 – 57, paras. E – A.

Therefore, it follows that a judgment that is right cannot be set aside because it is founded on a wrong reason. In other words, an appellate Court is basically concerned with the correctness of the decision of the Court from which the appeal emanated, not the reasons given for the decision. See the case of Dolor v. The State (2020) LPELR – 52445 (CA), p. 10 paras. A – B, Folakemi Osin v. FRN (2017) LPELR – 46219 (CA), p. 19, paras A – C, Master Holding (Nig.) Ltd. & Anor v. Emeka Okefiena (2010) LPELR – 8637 (CA), pp. 28 – 29, paras.

B – A. ​I consider it imperative to consider the availability of circumstantial evidence on the standard required by law that can serve as a tripod on which the conviction of the appellant can be sustained. The Nigeria Criminal jurisprudence is replete with several definitions of circumstantial evidence, all of which lead to one general or common effect. In the case of Musa Mamman v.

The State (2015) LPELR – 255963 (CA), circumstantial evidence was defined as: “Now, circumstantial evidence is evidence of surrounding circumstances which by undersigned coincidence is capable of proving a proposition with high level of certainty and the accuracy and/or precision of mathematics. It is not a derogation of evidence to say that it is circumstantial. However, to be sufficient to ground a conviction in a criminal trial, circumstantial evidence must be complete and unequivocal.

It must be compelling and must lead to the irresistible conclusion that the defendant and no one else did the deed and as such, it is only the defendant and no one else, who should be criminally culpable for the offence alleged or charged. The facts must be incompatible with the innocence or non-culpability of the defendant and incapable of explanation by any other reasonable hypothesis or consideration than that of his guilt – State Vs Njoku (2010) 1 NWLR (Pt.1175) 243 and Oladotun Vs State (2010) 15 NWLR (Pt.1217) 490.

It is trite law that before a defendant can be convicted for culpable homicide or murder on circumstantial evidence, the fact of death should be proved by such circumstances as render the commission of the crime certain and leave no ground for reasonable doubt. The circumstantial evidence should be cogent and compelling as to convince the Court that no rational hypothesis other than murder can the facts be accounted for. A conviction for culpable homicide or murder on circumstantial evidence must point to the guilt of a defendant with the accuracy of mathematics.

A Court cannot convict on circumstantial evidence, especially in a case of murder or culpable homicide where such evidence points in more than one direction Osuoha Vs State (2010) 16 NWLR (Pt.1219) 364 and Maigari Vs State (2010) 16 NWLR (Pt.1220) 439. In other words, for circumstantial evidence to sustain conviction, the following conditions must be met: (i) the evidence must irresistibly and unequivocally lead to the guilt of the defendant; (ii) no other reasonable inference could be drawn from it; and (iii) there must be no co-existing circumstances which could weaken the inference.

All the three conditions must exist in the adduced evidence to ground and sustain the conviction of a defendant- Shehu Vs State (2010) 8 NWLR (Pt.1195) 112.” Per ABIRU, JCA (Pp. 27-29, paras. C-B) See also the case of Nwielo v. The State (2021) LPELR – 56302 (CA) p. 19 – 20, paras. E – A. ​In the judgment of the trial Court, the learned trial Judge found that the appellant’s defence of alibi was investigated by the prosecution which found out that the appellant was at home in the village and made phone calls to the 1st accused.

Thus he found that the plea of alibi failed, and therefore concluded that the appellant was a sort of linkman between 1st accused and the others spying and relaying to them over the phone the position of things, and constituted herself a criminis participes to the crime of murder. This is where I think the trial Court resorted to circumstantial evidence in the absence of direct proof that the phone calls between the 1st accused person and the appellant centered on the role attributed to the appellant in the whole saga.

This issue was considered along with the trial Court’s acceptance of the prosecution’s evidence that the appellant’s defence of alibi was investigated and found to be false. Before I conclude on circumstantial evidence and whether the Court could rightly convict the appellant on circumstantial evidence, it is pertinent to consider the claim of the prosecution which the trial Court accepted that the defence of alibi set up by the appellant was found to be false. The expression “alibi” simply means elsewhere.

By the defence, the accused claims or says that he was in a place other than the scene of crime – See the case of Ochemaje v. The State (2008) LPELR – 2198 (SC). See also the following:- Nwabueze & Ors. v. State (1988) LPELR – 2080 (SC) p. 15, paras. B – D, Eyisi & Ors. v. State (2000) LPELR – 1186 (SC), p. 67 paras C – D. ​Once the defence of alibi has been raised timeously and with sufficient particulars, it is the duty of the police to investigate it in order to verify the claim. Failure to do so is fatal to the prosecution’s case. See the case of Opeyemi v.

The State (2019) LPELR – 48764 (SC), pp. 26 – 27 paras. F – A. See also Onuchukwu & Ors. v. State (1998) LPELR – 2701 (SC), p. 19, paras. A – B, Dogo & Ors. v. The State (2001) LPELR – 956 (SC), p. 32, paras B – F. The prosecution in this case claims that the defence of alibi set up by the appellant was investigated and she was found to be at home in the village on the 4/11/10, the date of the murder. The appellant did not claim that she was not at all in the village on 4/11/10. No!

What she stated was that she was in the village on 4/11/10 but between 7am – 8pm she went for training in Owerri, being a sports woman, a fact admitted by the prosecution and other witnesses.

She gave details of her whereabouts at Owerri up to the time she went back home at about 8pm in the evening. ​To properly investigate these claims and disprove it, the police were supposed to have gone to all the places she named and having investigated, and if found to be false, present those that were interviewed as prosecution witnesses to testify before the Court as to the fact that on the material date the appellant claimed that she was with them, she was not, and to be properly cross-examined by counsel to the appellant.

Here, however, all that the police told the Court is that he investigated the alibi and found that the appellant was at home in the village on the material date. The police did not tell the Court who verified that claim to him and at where and at what time. The ipse dixit of the police that they investigated the alibi and found it to be false is not only insufficient, but unreliable. In any view, the evidence of the police on the appellant’s alibi has no probative value. The learned trial Judge was therefore clearly in palpable error to rely on it.

It has the effect of the alibi set up by the appellant having not been investigated. In the case of Monday Odu & Anor. v. The State (2001) LPELR – 2231 (SC), p. 7 paras E – F, it was held that there are occasions on which failure to check an alibi may cast doubt on the reliability of the case of the prosecution; yet where there is positive evidence which cancels the alibi, the failure to investigate the alibi would not be fatal to conviction. In the instant appeal, there is no positive evidence which cancels the alibi.

The prosecution’s case is substantially built on the evidence of PW1 which implicated the appellant. Like I earlier stated elsewhere in this judgment, apart from the confessional statement of 1st accused having been retracted, in law it only binds him. See Section 29 (4) of the Evidence Act, 2011. The prosecution’s case is also founded on the evidence of PW1 which, apart from being hearsay, is based on the confession she said were made by the said 1st accused person to her in which he incriminated the appellant.

The 1st accused, as noted, and as can be verified from the record retracted the confession and claimed that the police forced him to make those statements. He told the Court that he murdered the deceased all by himself. The prosecution did not believe him. The trial Court did not too because of the glasses of wine they found in the living room of the deceased. Suspicion it is, indeed very strong suspicion, but there must be cogent and reliable evidence to back up the suspicion. No evidence at all, not even circumstantial evidence on the standard required by law for the conviction.

There was without doubt, no legally acceptable evidence for the finding of the Court that the only option open to it is to hold that the appellant was a sort of linkman between the 1st accused person and the others, spying to them over the phone and reporting things. With no iota of legally admissible evidence to prop up the conviction of the appellant except the misconceived confession of the 1st accused and evidence of PW1 and PW4, the conviction of the appellant is perverse and cannot be allowed to stand. Therefore, I find this appeal loaded with merit and I hereby allow it.

In the result, the judgment of the trial Court delivered in Suit No. HOW/51C/2011 on 18th February, 2013 is hereby set aside as against the appellant in this appeal. The conviction and sentence imposed on the appellant is hereby set aside. Consequently, she is hereby discharged and acquitted and is ordered to be released from the correctional facility forthwith.

IBRAHIM WAKILI JAURO, J.C.A.: I have read before now the draft of the Judgment delivered by my Learned brother James G. Abundaga, JCA. I must say his Lordship has extensively dealt with this appeal such that I have nothing to add. I also allow the appeal it is meritorious. I abide by the orders made by his Lordship. ADEMOLA

SAMUEL BOLA, J.C.A.: The judgment just delivered by my learned brother, JAMES GAMBO ABUNDAGA, JCA, was read in draft by me. I am in agreement with the reasoning and conclusion. I have nothing to add. In effect, I abide by the conclusion and orders made.

Judgment

DANLAMI ZAMA SENCHI, J.C.A. (Delivering the Leading Judgment) : This appeal is against the ruling of the Federal High Court, Abuja in Charge Nor FHC/ABJ/CR/258/2019 delivered on the 23rd day of November, 2020 by O. E. ABANG, J. Pursuant to a Summons to Admit to Bail dated and filed on 25th October, 2019 on behalf of the 1st Defendant in Charge No. FHC/ABJ/CR/258/2019 (Abdulrasheed Abdullahi Maina), the lower Court admitted him to bail via a ruling delivered on 26th November, 2019. (See pages 296-322 of the Record of Appeal).

The bail conditions were varied via the Ruling of the lower Court delivered on 28th January, 2020 upon an Application filed on behalf of the aforementioned 1st Defendant on 6th December, 2019. On 29th April, 2020, the 1st Defendant’s Application for further variation of the bail conditions was dismissed for lacking in merit. The trial Court on 29th June, 2020 further varied its order made on the Bail Conditions on 28th June, 2020.

The 1st Defendant was granted bail and he was released from custody on 24th July, 2020, after satisfying the Bail conditions. ​The Appellant was the surety of the 1st Defendant and he filed an 11 paragraphs Affidavit of Means on 5th May, 2020, in which he averred inter alia that the property used in fulfilment of the bail term belongs to him, he is ready to produce the Defendant in Court to stand his trial and if the Defendant jumps bail, he shall forfeit the bond to the tune of N500,000,000.00 to the Federal Government of Nigeria.

The 1st Defendant failed to appear before the trial Court on several adjournments including: 29th September, 2020; 30th September, 2020; 2nd October, 2020; 19th October, 2020 and 18th November, 2020, without reasonable explanation.

On 18th November, 2020, pursuant to the Respondent’s Application, the bail of the 1st Defendant was revoked and a Bench Warrant issued against him; and pursuant to the prayer of the Appellant, the lower Court granted an adjournment to 23rd November, 2020, to enable the Appellant engage a Counsel to show cause why he should not be remanded in prison as a result of the 1st Defendant jumping bail.

The Appellant’s counsel then wrote a letter dated 19/11/2020 addressed to the DCR the trial Court requesting for certain processes (documents) to enable him look at them and prepare for his defence behalf the surety. (see pages 194 – 195 of the Record of Appeal Delivering his Bench Ruling, the trial Court held as follows:- “Therefore, under Section 179(1) of ACJA, the prosecution’s application deserves to succeed and it is accordingly granted as prayed.

I hereby make the following orders – (1) Surety Senator Ali Ndume shall be remanded in correctional centre Kuje pending compliance or fulfilment of any of the following conditions- (a) That he forfeits the Bail Bond of 500 million Naira to the Federal Government of Nigeria. That is he pays the sum of 500 million Naira into Federation account and evidence of payment placed before the Court. He shall then be released from custody.

Or (b) That the complainant in this matter the Federal Republic of Nigeria shall sell or dispose of the property situate at plot No. 158 Cadastral Zone A04 Asokoro District, Abuja covered by C of O, No. 17-d743z-6E31r-e6dzu-10, File No. KN11297 dated 29/8/2005 Lawal Ahmed having donated irrevocable power of Attorney to Senator Ali Ndume as the owner of the property being the property that was pledged as security for the bail bond, full sum of 500 million recovered and paid into Federation account and evidence of payment placed before the Court then the surety shall be released from custody.

Or The 1st Defendant whose bail has been revoked that is on Bench Warrant is produced in Court, then the surety shall be released.” (see pages 420-422 of the Record of Appeal) Dissatisfied with the ruling of the lower Court, the Appellant filed a Notice of Appeal dated the 24th day of November, 2020.

The Grounds of Appeal contained in the Appellant’s Notice of Appeal are hereby reproduced (without their particulars) as follows: GROUND ONE The learned trial Judge erred in law when he refused to grant an adjournment to enable the Appellant’s Counsel procure from the Court certified true copies of Court documents necessary to defend the forfeiture proceedings thereby denying the Appellant the right to fair hearing.

GROUND TWO The learned trial Judge erred in law when upon refusing the application for adjournment failed to call upon the Appellant in line with Section 179 of the Administration of Criminal Justice Act, 2015 to show cause why the bond should not be forfeited before giving his ruling forfeiting the bond thereby occasioning a miscarriage of justice against the Appellant. GROUND THREE The learned trial Judge erred in law when he did not give the Appellant adequate time and opportunity to defend himself before forfeiting the bond and ordering Appellant to be remanded in prison custody.

GROUND FOUR The learned trial Judge erred in law when he forfeited the bail bond when same has not been proved to the satisfaction of the Court by the prosecution to be forfeited as required by Section 179 (1) of the Administration of Criminal Justice Act, 2015. GROUND FIVE The learned trial Judge erred in law when on 23/11/2020 he forfeited the Appellant’s bond and sent him to prison indefinitely without first informing the Appellant exactly of the breach complained of and without giving the Appellant an opportunity to give evidence, call witnesses or give explanation from the dock: FRN V.

Maishanu (2019)7 NWLR (Pt. 1671) 203 @ 223. GROUND SIX The learned trial Judge erred in law when he failed to countenance the application of the Appellant’s Counsel in the file of the Court requesting for certified true copies of relevant Court processes to enable him adequately defend the forfeiture proceedings thereby occasioning a miscarriage of justice against the Appellant.

GROUND SEVEN The learned trial Judge erred in law when he ordered the Appellant to be sent to Kuje prisons when the Appellant was not on trial for any criminal offence but only a surety whose bond is securitized by a landed property in the sum of N500 million. GROUND EIGHT The learned trial Judge erred in law when he ordered in the alternative that the Appellant (surety) should not be released from prison custody until the N500 million is paid or the Respondent sells the property (security) and recovers the N500 million into the coffers of the Federal Government of Nigeria.

GROUND NINE The trial Court erred in law when it proceeded on the application for forfeiture of bond when all other necessary steps regarding the 1st Defendant’s jumping of bail has not been exhausted. GROUND TEN The learned trial Judge erred in law when he held that the surety’s application for record of proceedings should have been made by a motion and not by a letter.

GROUND ELEVEN The learned trial Judge erred in law when he ordered the remand of the Appellant in prison custody indefinitely in contravention of the provisions of the Administration of Criminal Justice Act, 2015 thereby acting outside his jurisdiction. GROUND TWELVE The judgment is unreasonable and unwarranted and should be set aside. The Record of Appeal was transmitted to this Court on 03/12/2020. The Appellant’s Brief of Argument was dated and filed on 11th December, 2020. The Respondent’s Brief of Argument was filed on 4th March, 2021 and deemed properly filed on 14th March, 2022.

ISSUES FOR DETERMINATION In the Appellant’s Brief of Argument which was settled by Marcelluous Eguvwe Oru Esq., the following issues for determination were raised: (1) Whether in the circumstances of this case, the learned trial Judge was right when he refused to grant the adjournment sought by the Appellant’s Counsel on 23rd November, 2020. (Distilled from Ground of Appeal No. 1) (2) Was the Appellant on 23/11/2020 given fair hearing by the trial Court before his recognizance bond was forfeited and further ordered to be remanded in prison custody? (Distilled from Grounds of Appeal numbers 2, 3, 5 and 6). (3) Whether or not the Respondent proved to the satisfaction of the trial Court why the recognizance bond should be forfeited. (Distilled from Ground of Appeal No. 4) (4) Whether the learned trial Judge was right and acted competently in the way and manner he forfeited the recognizance bond of the Appellant and sentenced him to be remanded in prison custody. (Distilled from Grounds of Appeal numbers 7, 8, 9 and 11). (5) Whether the learned trial judge was right when he failed to take cognizance of the Appellant’s Counsel’s letter of 19th November which was already before the Court on the ground that it is a “mere administrative letter.” (Distilled from Ground of Appeal No. 10) (6) Whether in the circumstances of this case the decision of the trial was reasonable, proper and warranted (Distilled from Grounds of Appeal number 12) In the Respondent’s Brief of Argument which was settled by Faruk Abdullah Esq., a sole Issue for Determination was raised thus: Whether the lower Court was not right to hold that the Appellant had breached the terms of his recognizance?

ARGUMENTS OF COUNSEL APPELLANT’S SUBMISSIONS APPELLANT’S ISSUE ONE At paragraphs 4.1-4.16 of the Appellant’s Brief of Argument, learned Counsel to the Appellant submitted to the effect that 23/11/2020 was the first time the Appellant’s Counsel appeared before the trial Court in the matter and the failure of the trial Court to oblige him with the documents requested for and further failure to grant an adjournment to enable Appellant’s Counsel obtain the necessary documents to defend the forfeiture proceedings amounted to denial of fair hearing and wrongful use of discretion by the trial Court.

He relied on the cases of ASHIRU V. AYOADE (2005) LPELR-12881 (CA)1 AT 18-11, GUARANTY TRUST BANK PLC V. CHUKWEMMEZIE PETER EKEMEZIE (2011) LPELR-11933 (CA)1 AT 18-20, MAINS VENTURES LTD V. PETROPLAST IND. LTD (2000)4 NWLR (PT. 651) 151 AT 165, RASAKISALU V. MADAM TOWUROEGEIBON (1994)6 NWLR (PT. 348) 23 AT 45. Counsel submitted further that it is not the number of adjournments that matters but the reason for the adjournment and once the reason is genuine, convincing and will aid determining the matter on the merit as in this case, such an adjournment ought to be granted.

He submitted further that the trial Judge in refusing the adjournment acted on entirely wrong principle of law and failed to take all the circumstances of this case into consideration, which has manifestly worked injustice against the Appellant. He urged this Court to allow this issue.

APPELLANT’S ISSUE TWO At paragraphs 5.2-5.8 of the Appellant’s Brief of Argument, Counsel submitted to the effect that the law is trite that where a trial Judge refuses an application for adjournment of a case set down for hearing, he must immediately invite the party or his Counsel to proceed to trial and rule on the response to that invitation before proceeding to decide the case or make pronouncements/orders/decisions affecting the rights of the parties and failure to do so is fatal to any judgment or order made thereafter.

He relied on the cases of REGISTERED TRUSTEES OF CHRIST FAITH MISSION & ORS V. REVD. DANIEL EGBEFAH AKUGHA (2008) LPELR-4894 (CA) 1 AT 16-19, ECOBANK V. BUKAS KASMAL INT’L LTD & ORS (2017) LPELR-43544 (CA) 1 AT 51-63, GUARANTY TRUST BANK V. EKEMEZIE (SUPRA) 1 AT 15-16, ERINFOLAMI V. SOCIETE GENERALE BANK (NIG) LTD (2008)7 NWLR (PT. 1086) 306 AT 334 B-E, 340 G-H; IDEMUDIABAMAWO V. ISAAC LAYINKA CARRICK (1995) 6 NWLR 356, etc.

He submitted further that there is nowhere in the proceedings of 23/11/2020 where the learned trial Judge after refusing the Appellant’s Counsel’s application for adjournment, called on the Appellant or his Counsel to enter their defence before the bond was forfeited and Appellant remanded in prison custody. Counsel submitted that any judgment/decision such as the one on appeal which was given without due compliance and which has breached fundamental right of fair hearing is a nullity and is capable of being set aside by the appellate Court. He relied on the cases of BAMGBOYE V.

UNIVERSITY OF ILORIN (1999)10 NWLR (PT. 622) 290 and OTAPO V. SUMMONU (1987)2 NVVLR (PT. 58) 587. Counsel submitted that He urged this Court to allow this issue.

APPELLANT’S ISSUE THREE At paragraphs 6.1-6.10 of the Appellant’s Brief of Argument, learned Counsel to the Appellant submitted to the effect that in proving to the satisfaction of the Court why the recognizance bond should be forfeited by the Surety/Appellant, the Prosecution/Respondent must exhibit or produce the recognizance bond sought to be forfeited, and it must be exhibited before the Court irrespective of the fact that it is the same Court that granted the bail. He submitted further that even after the Recognizance is produced and proved, the Surety/Appellant has a right to be heard.

Counsel relied on Section 179(1) of the Administration of Criminal Justice Act, 2015 and the cases of FRN V. MAISHANU (2019) 7 NWLR (PT. 1671) 203 @ 223, AHAMADU TEA V. COMMISSIONER OF POLICE (1963) NNLR 77, JOHN & ANOR V. COMMISSIONER OF POLICE (2001)2 ACLR 495 @ 500-501, ABUDU, RE KOTUN (1961) LLR 83. He submitted further that the Prosecution/Respondent and the Court failed to follow any of the necessary steps to forfeit the Appellant’s bond, and this amounts to a miscarriage of justice against the Appellant. He urged this Court to allow this issue.

APPELLANT’S ISSUE FOUR At paragraphs 7.1-7.15 of the Appellant’s Brief of Argument, Counsel submitted to the effect that failure to produce the 1st Defendant is an offence unknown to law, thus, the trial Court was wrong to have ordered the remand of the Appellant in prison without proper forfeiture procedure.

He submitted further that for all intents and purposes, the Appellant was not facing any criminal proceedings before the trial Court and Section 179 of the Administration of Criminal Justice Act, 2015 does not empower the learned trial Judge to start by remanding the Appellant in prison custody, thus, the trial Judge erred when he ordered that for a start, the Appellant should be remanded in prison custody until he pays the N500 million or until the property is sold and money paid into the federation account.

Counsel submitted further that the bond was securitized with documents of a landed property worth over N500 million and the original documents of title are domiciled with the trial Court, and it is only when the penalty is not paid and cannot be recovered that the Surety shall be liable to imprisonment for a term not exceeding six months. He relied on Section 179 of the ACJA, 2015 and the case of CHRISTOPHER EKWUAZI V. DPP & 2 ORS (2001)2 ACLR 488 AT 489.

APPELLANT’S ISSUE FIVE At paragraphs 8.1-8.7 of the Appellant’s Brief of Argument, Counsel submitted to the effect that the Appellant was not a party to the criminal proceedings being tried by the trial Court and as a surety, he had no need for a Counsel till the 1st Defendant jumped bail and there was an application for forfeiture of bond made by the Respondent; thus, the only lawful way for the Surety/Appellant’s Counsel to know about what happened in the proceedings was to apply for certified true copies of the relevant Court proceedings via a letter duly filed and paid for, as it would have been inappropriate to have applied for the said documents via a Motion on Notice.

Counsel relied on the cases of TONY NWOYE V. MR. ANEKECHRISCATO IKECHUKWU & ORS (2011) LPELR-9195 (CA)1 AT 20-22, MRS GLORIA ANULIKA ANAEKWE V. MR KINGSELY IRUBA & ORS (2011) LPELR-9198 (CA)1 AT 18-30. Counsel submitted further that the learned trial Judge erred when he held that the letter filed by the Appellant’s Counsel was a mere administrative letter and he was not bound by it. He relied on the case of THE REGISTERED TRUSTEES OF THE PRESBYTERIAN CHURCH OF NIGERIA V. JOHN ASUQUO ETIM (2017)13 NWLR (PT. 1581)1 AT 41.

Counsel contended that the failure of the trial Court to approve or disapprove of the letter or even consider same in the application for adjournment by the Appellant’s Counsel amounted to denial of fair hearing which has occasioned a miscarriage of justice against the Appellant. Referring to the case of AFOLABI V. ADEKUNLE (1983)2 SCNLLR 41, he contended that substantial justice would have been done if the letter were considered rather than technicality. Counsel urged this Court to allow this issue.

APPELLANT’S ISSUE SIX At paragraphs 9.1-9.3 of the Appellant’s Brief of Argument, Counsel adopted all preceding submissions for issues 1-5 and submitted further that the decision forfeiting the bond and remanding the Appellant in prison custody was unwarranted, unreasonable, hasty, premature and a gross denial of fair hearing which rendered same a nullity. He urged this Court to allow this issue. In conclusion of his Brief of Argument, learned Counsel to the Appellant urged this Court to allow the appeal and set aside the decisions and Orders of the learned trial Judge.

RESPONDENT’S SUBMISSIONS At paragraphs 4.1.1-4.1.5 of the Respondent’s Brief of Argument, learned Counsel to the Respondent submitted on his sole Issue for Determination to the effect that the lower Court gave the Appellant fair hearing and the Appellant was fully in charge of his case. He submitted further to the effect that the lower Court acted within the confines of the provision of Section 183 of ACJA, 2015 to order the forfeiture of the recognizance entered by the Appellant and the order that he be remanded. Counsel submitted further that the case of FRN V.

MAISHANU referred to by the Appellant’s Counsel does not apply to the instant appeal, and the said case was decided based on the provisions of the Criminal Procedure Code and the instant case is governed by the Administration of Criminal Justice Act, 2015 and not the Criminal Procedure Code as erroneously canvassed by the Appellant’s Counsel. He submitted further that in the unlikely event that FRN V. MAISHANU is relevant, the facts are not on all fours with the instant case. Counsel urged this Court to resolve this Issue for Determination in favour of the Respondent and dismiss the appeal.

In conclusion of his Brief of Argument, learned Counsel to the Respondent urged this Court to dismiss this appeal with substantial cost in favour of the Respondent.

RESOLUTION OF ISSUES This appeal shall be determined on the six (b) issues submitted for determination by the Appellant’s counsel and the Respondent’s sole issue would be considered thereunder. ISSUES 1, 2 and 5 shall be considered and determined together whole issues 3 and 4 shall be determine together as well and finally issue six.

ISSUES 1, 2, 3 and 4, 5 and 6 At paragraphs 4.1 – 4.11 of the Appellants Brief of Argument learned senior counsel submits to the effect that to grant or not to grant an application for adjournment is entirely at the discretion of the Court depending on the circumstances of a particular case.

He submits that on the 18/11/2020, the Respondent orally made three (3) applications before the trial Court and he refers to pages 242-249 of the Record of Appeal wherein the first two prayers or reliefs of the oral application was granted and in respect of the third prayer that bothers on forfeiture of the bail bond of the Appellant, the Appellant at pages 252 lines 8-14 of the Record of Appeal requested for relevant application to be served on him and that an opportunity be given to him to engage the services of a lawyer to handle the forfeiture proceedings.

The trial Court granted the application and adjourned the matter to the following date, that is, the 19/11/2020. On 19/11/2020, the appellant’s counsel appears in Court and wrote a letter to the Deputy Chief Registrar of the trial Court dated same 19/11/2020 requesting for certain processes of the Court to enable the Appellant’s counsel prepare the defence of the Appellant in the forfeiture proceedings.

According to learned counsel for the Appellant as of close of work on Friday the 20/11/2020, the letter of the Appellant’s counsel was before the learned trial Judge awaiting his approval for the Registry of the Court to release the documents requested. On 23/11/2020, when the matter came up for the forfeiture proceedings, Appellant’s learned counsel drew the attention of the learned trial Judge to the letter of 19/11/2020 requesting for the documents for the defence of the Appellant but the learned trial Judge proceeded to deliver its Bench ruling in respect of the forfeiture bond.

The Respondent’s learned counsel on the other hand, at pages 4.1.1-4.1.4 of the Respondent’s Brief of Argument submits to the effect that the lower Court granted the Appellant opportunity to be heard and he relies on the proceedings of the Court on 18/11/2020 and 19/11/2020. Be it as it may, the question that may arise in the circumstances of this case is whether the trial Court afforded the Appellant the opportunity to prepare and defend himself in the forfeiture proceedings?

I have perused the proceedings of 18/11/2020 contained at pages 242 – 260 of the Record of Appeal especially the submission of the Appellant as follows:- “My Lord, now the prosecutor has put in an application that affect me. I want to appeal that those part that affect me be served on me so that I can brief my lawyer to stand for me in this Court.

That is all I can say.” See page 252 lines 8 – 14 of the Record of Appeal) Then the trial Court in its Bench Ruling held thus:- “This matter is adjourned to 23/11/2020 at the instance of the surety for hearing for him to show cause why he should not be remanded in prison or forfeit the bail bond of N500,000,000, that he agreed to forfeit in paragraph 9 of his affidavit of 5/05/2020.” (See page 260 of the Record of Appeal).

Pursuant to the Bench ruling granting an adjournment from the 18/11/2020 to 23/11/2020, the Appellant briefed his lawyer, M. E Oru Esq., to defend him in the forfeiture proceedings. The Appellant’s counsel then caused a letter to be written to the Deputy Chief Registrar of the trial Court dated 19/11/2020. The letter at paragraphs 2-5 states:- “We have been briefed by our client that he acted as surety to the 1st Defendant in the above case who has now jumped bail resulting in the prosecution applying for the forfeiture of the bond.

We have not been in the matter since inception and thus not in a good position to handle the matter as we are not aware of all that has transpired in Court relating to the bail, bond and its forfeiture and matters arising therefrom. It is in the light of the above that we humbly apply for certified true copies of the under listed documents. i. bail bond, ii. recognizance, iii. record of proceedings relating to production of the 1st Defendant, revocation of the 1st Defendant’s bail and the forfeiture of the bond and revocation of the bail, iv. affidavit deposed to by our client (surety),

v. warrant of arrest of the 1st Defendant,

vi. copy of the landed property used as security for the bail, and vii. all other documents will assist us in adequately preparing the case of our client (the surety) and to effectively and effectually handle same.” (see pages 194 – 195 of the Record of Appeal) The trial Court did not grant the request of the Appellant vide his counsel’s letter dated 19/11/2020 or an adjournment and by its Bench ruling of 23/11/2020, the trial Judge held as follows:- “A mere letter or correspondence addressed to DCR of the Court that ought not to have been placed before the Court by the Court’s Registrar that did not act in good faith is not related to any provisions of ACJA.

In fact there is no provision in ACJA that supports the letter. Therefore under Section 179(1) of the ACJA, the prosecution’s application deserves to succeed and it is accordingly granted as prayed. I hereby make the following orders:- (9) The surety Senator Ali Ndume shall be remanded in correctional Centre Kuje pending compliance or fulfillment of any of the following conditions:- (a) That he forfeits the Bail Bond of N500,000,000.00 to the Federal Government of Nigeria. That is, he pays the sum of N500,000,000.00 into Federation account and evidence of payment placed before the Court.

He shall then be released from custody. Or (b) That the complainant in this matter the Federal Republic of Nigeria shall sell or dispose of the property situates at plot No. 158 Cadastral Zone A04 Asokoro District, Abuja covered by C of O No. 17d743z-6E31rebdzu-10, file No.

KN 11297 dated 29/08/2005 Lawan Ahmed having donated irrevocable power of Attorney to Senator Ali Ndume as the owner of the property being the property that was pledged as security for the bail bond, full sum of N500,000,000.00 recovered and paid into Federal account and evidence of payment placed before the Court then the surety shall be released from custody: Or The 1st Defendant whose bail has been revoked that is on Bench warrant is produced in Court, then the surety shall be released.” ​ Now as to the issue of whether to grant or not to grant an adjournment it is trite law that all Courts in Nigeria have unfettered discretionary power to adjourn any proceedings pending before them in order to do justice to the suit.

The guiding principle is that the discretion must be exercised at all times judicially and judiciously on the materials placed before the Court and the peculiar circumstances of the particular case. See ASO MOTEL KADUNA LTD V MRS DAYO DEYEMO, (2006) LPELR-1159b (CA). And to succeed on appeal for refusal to grant an adjournment it must be shown that the Court exercised its discretion wrongly.

The Supreme Court of Nigeria in the case of MOBIL OIL (NIGERIA) LIMITED V NABSONS LIMITED (1995) LPELR 1885 in considering the instance when Court can or should grant an application for adjournment held as follows:- “Where there is a change of counsel during trial and the new counsel applies for a short adjournment to enable him prepare and be fully briefed by his client It will amount to a judicious exercise of discretion if the Courts grants the application.

Refusal to adjourn, in such a situation may amount to taking away the right of a party to have a counsel of his choice.” It must be noted and it is the law that in the Court exercising its discretion to grant an adjournment, the Court must bear in mind the requirement that justice should be done to both parties and that the adjournment is in the interest of Justice and that the hearing should not be unduly delayed.

An adjournment should be granted if the refusal is not likely to defeat the right of a party or be an injustice to one or the other, unless there is a good or sufficient cause for the refusal. See the cases of John Asuquo Etim v The Registered Trustees of the Presbyterian Church, (2003) LPELR-7254(CA), YISI (NIG) LTD V TRADE BANK PLC (1999)1 NWLR (pt 588)646. In this case, this Court held that where a lower Court refused the application of a counsel for an adjournment, that such a refusal amounted to a denial of fair hearing and an injudicious exercise of judicial power.

Now let us situate the facts of the instant case to issues 1, 2 and 5 culled from Ground 1, 2, 3, 5, 6 and 10 of the Grounds of Appeal. The facts on record in this appeal reveal that the Defendant standing trial in the criminal trial is Abdulrasheed Abdullahi Maina while the surety is Senator Mohammed Ali Ndume.

By the records in this appeal especially the proceedings of 18th November, 2020, the prosecution desirous of having a speedy criminal trial, made some vital applications orally before the trial Court and the trial Court in its Bench Ruling held:- “The 1st Defendant cannot hold the Court to ransom. See Section 184 of ACJA. The Bail of the 1st Defendant earlier granted on 26/11/2019, varied on 28/1/2020. 29/6/2020 is herby revoked. I so hold The Bench warrant is hereby ordered for the arrest of the Defendant anywhere he may be found and brought before this Court.

The complainant in this matter that is the Federal Republic of Nigeria shall effect the arrest of the 1st Defendant anywhere he may be found and brought before this Court without delay. On the issue of the trial in absentia, there is no objection, it is hereby ordered that trial will continue in the absence of the 1st Defendant.

See Section 353 (4) ACJA.” By the Bench ruling of the trial Court, criminal proceeding or trial of the Defendant will proceed in line with Section 352 (4) which provides:- “Where the Court, in exercise of its discretion, has granted bail to the Defendant and the Defendant, in disregard for the Court Orders fails to surrender to the order of Court or fails to attend Court without reasonable explanation, the Court shall continue with the trial in his absence and convict him unless the Court sees reason otherwise, provided the proceedings in the absence of the Defendant shall take place after two adjournment or as the Court may deem fit.” Thus, by the Bench ruling of the trial Court and the evocation of Section 352 (4) of the ACJA, 2015, the trial Court has taken steps to avoid undue delay and at that stage, trial of the Defendant, Abdulrasheed Abdullahi Maina ought to have proceeded as requested by the Federal Republic of Nigeria through the Prosecution.

However, the trial Court jettisoned its order of trial of the Defendant in absentia and proceeded to go after the surety to the Defendant, Senator Mohammed Ali Ndume.

And indeed, from the record i.e the proceedings of 18/11/2020, the learned prosecuting counsel (at page 252 lines 15 -19 and 253 lines 1 – 8 of the Record of Appeal) submitted thus:- “although the matter was adjourned from 19/10/2020 till today 18/11/2020 while is a period of one month and surety when coming to Court this moving he knew that he has not found the 1st Defendant, he should have made arrangement for legal representation.

However though he is not a Defendant, in the overall interest of justice, I shall reluctantly concede only to the extent it relates to his own issue.” By the above submission of the learned prosecution, the attention of the trial Court was drawn to the fact that the Appellant is not a Defendant in the criminal trial and in the interest of justice, the prosecution conceded that the Appellant be grant an adjournment to secure services of a counsel of his own choice.

The trial Court then adjourned the case to 23/11/2020 not for the purpose of criminal trial of the Defendant but in respect of the forfeiture proceedings against the Appellant. The Appellant secures the service of his counsel and the counsel wrote a letter dated 19/11/2020 requesting for certain documents to prepare the Appellant’s defence in respect of the forfeiture proceedings. Records in this appeal show that the attention of the trial Court was drawn to the letter of 19/11/2020 by the Appellant’s counsel.

However, there is no evidence on record to show that the application vide letter dated 19/11/2020 of the Appellant was honoured or granted the trial Court. Secondly, from records in this appeal, the Appellant’s counsel who was appearing in Court on 23/11/2020 for the first time was denied an adjournment to prepare and defend the Appellant.

The attitude of the trial Court in denying the Appellant the documents requested for and the trial’s Court’s refusal to grant the adjournment in the circumstances of this case, certainly amounts to breach of Section 36 (1) of the 1999 Constitution of the FRN (as amended).

The provision of Section 36 (1) provides thus:- “In the determination of his civil/rights and obligations, including any question or determination by or against any Government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such manner as to secure its independences and impartiality.” By the above provision, the trial Court was wrong to have denied availing the Appellant with the documents to prepare and defend himself in the forfeiture proceedings.

In otherwords, by the provisions of Section 36 (1) of the 1999 Constitution of the FRN (as amended), a party, in this case, the Appellant is entitled to prepare for his case by discoveries and interrogaries of vital document towards the building of his case/defence. The trial Court having rejected the two requests of the Appellant’s counsel, the trial Court proceeded in error by holding as follows:- “Therefore Section 179(1) of the ACJA the prosecution’s application deserves to succeed and it is accordingly granted as prayed.

I hereby make the following orders- (1) The surety Senator Ali Ndume shall be remanded in correctional centre Kuja pending compliance or fulfillment of any of the following conditions- (a) That he forfeits the Bail Bond of N500,000,000.00 to the Federal Government of Nigeria.

That is he pays the sum of N500,000,000.00 into Federation account and evidence of payment placed before the Court, he shall then be released from custody. (b) That the complainant in this matter the FRN shall sell or dispose of the property situates at plot No 158 Cadastral Zone A04 Asokoro District, Abuja covered by C of O N017d743z-6E3Ke6dzu-10, file No KN11297 dated 28/08/2005 Lawal Ahmed having donated irrevocable power of Attorney to Senator Ali Ndume as the owner of the property being the property that was pledged as security for the bail bond, full sum of N500,000,000.00 recovered and paid into Federation account and evidence of payment placed before the Court then the surety shall be released from custody.

Or The 1st Defendant whose bail has been revoked that is on Bench warrant is produced in Court, then the surety shall be released.” This holding of the trial Court is contrary to Section 179(1) of ACJA 2015 relied upon by the trial Court.

The said Section 179(1) ACJA, 2015 provides:- “Where it is proved to the satisfaction of the Court by which a recognizance has been taken or, when the recognizance bond is for appearance before a Court and it is proved to the satisfaction of the Court that a recognizance has been forfeited, the Court shall record the grounds of proof and may call on any person bound by the bond to pay the penalty thereof or to show cause why it should not be paid.” Section 179 (1) of the ACJA 2015 makes conditions to be satisfied before forfeiture as follows:- (a) The trial Court shall record the grounds of proof of the subject of forfeiture; (b) call on the person bound by the bond to pay; (c) the person called upon to explain or show cause why he should not pay the penalty.

Before I consider the implication of Section 179 (1) of the ACJA, 2015, let me briefly comment on the nature of bail, effect of granting and who a surety is in the scheme of things.

Firstly, the nature of bail as the word connotes is a contract. In the case of ADAMU SULEMAN & ANOR V C.O.P PLATEAU STATE (2008) LPELR-3126, the Supreme Court per TOBI JSC (of blessed memory) held:- “The right of bail, a constitutional right, is contractual in nature. The effect of granting bail is not to set the accused free for all times in the criminal process but to release him free for all times in the criminal process but to release him from the custody of the law and to entrust him to appear at his trial at a specific time and place.

The object of bail pending trial is to grant pre-trial freedom to an accused whose appearance in Court can be compelled by a financial sanction in the form of money bal. The freedom is temporary in the sense that it lasts only for the period of the trial. It stops on conviction of the accused. It also stops on acquittal of the accused. The contractual nature of bail is provided for in Section 345 of the Criminal Procedure Code.

The section provides that before any person is released on bail he must execute a bond for such sum of money as determined by the police or the Court on the condition that such person must attend at the time and place mentioned therein until otherwise directed.

And if the person is released on bail, the sureties must execute the same or another bond or other bonds containing conditions to the same effect.” In the instant appeal evaluating the facts at the trial Court, there was a contractual relationship between the trial Court and the Appellant wherein the Appellant was the surety to the Defendant (now a convict) to ensure his appearance in Court to face his trial at all times. And the Appellant as surety denotes that he was primarily liable for paying for another’s debt or obligation whether primarily secondarily, conditionally or unconditionally.

See the Blacks Law Dictionary, 9th Edition, 2009 on the meaning of “surety.” If I may ask, what is the criminal offence of the Appellant that warrants the trial judge to make an Order remanding the Appellant in Correctional Centre? I have perused the provisions of both the Administration of criminal Justice Act 2015, the Criminal Procedure Act and Criminal Procedure Code dealing with sureties, I am unable to lay my hands on any provision that empowers the Court to remand a surety for failure to produce a defendant, suspect or accused person standing trial in a criminal offence.

The relationship between the surety and the Court is contractual and where the surety fails to produce the Defendant/suspect in Court for his trial, the Court will now evoke those bail conditions in accordance with the law before bond is forfeited. In otherwords, the Appellant, Senator Mohammed Ali Ndume was remanded in the correctional centre without a known offence in law. A close look at the provisions of Sections 165 and 179 of the ACJA, 2015, it does not empower the trial Court to remand the Appellant.

A judicial officer must be circumspect in the application of his judicial powers and such exercise must be done judicially and judiciously in accordance with the law. Thus, therefore the order remanding the Appellant in the correctional centre by the trial Court, the trial Court has crossed the red lines of his Oath of office and therefore null, void and unconstitutional. Now Section 179(1) of the ACJA, 2015 as I said earlier imposes conditions in the enforcement of forfeiture bond sums.

It is on record that the Appellant deposed to an affidavit of means on 5/05/2020 wherein the Appellant deposes at paragraphs 7 – 10 as follows:- Paragraph (7) provides:- “That I am aware of the bail bond of N500,000,000.00as a condition against the Defendant Paragraph (8)- The property used in the fulfillment of the Bail term belongs to me personally Paragraph (9)- That I am ready to produce him in Court to stand his trial or I shall forfeit the bail bond in default” Paragraph (10)- That if the Defendant jumps bail I the surety shall forfeit the bond to the tune of 500 million Naira to the Federal Government of Nigeria.

The fact that the surety i.e Appellant has deposed to the above facts in his affidavit of means, the trial Court cannot proceed to make an order forfeiting the property or the bond sum without calling on the surety (Appellant) to show cause why the Court cannot make such an order forfeiting the properties to the Federal Government of Nigeria. I have painstakingly perused the Record of Appeal and especially the proceedings of 18/11/2020 and 23/11/2020, I am unable to find where the trial Court called upon the Appellant to show cause.

The position of the Appellant at pages 251-252 of the Record of Appeal and the submissions of Appellant’s counsel at page 275 of the Record of Appeal ought to have triggered in the mind of the learned trial Judge that fundamental right to fair hearing of the Appellant is in issue and thus, having refused to afford or avail obligating the Appellant the documents as well as an adjournment, the trial Court proceeded in error to make such consequential orders of forfeiture without calling on the Appellant to show cause. See FRN V MAISHANU, (2019)7 NWLR (pt 1671)2023 at 223.

This is a fundamental breach to Right of the Appellant as guaranteed by the constitution of the Federal Republic of Nigeria, 1999 (as amended). And a breach of the Appellant’s Fundamental Right without affording him the opportunity to make explanations on the forfeiture, the entire proceedings is a nullity, unconstitutional and of no effect whatsoever.

In the case of PEOPLES DEMOCRATIC PARTY (PDP) & ORS V BARR SOPUL UCHUKWU, (2017) LPELR-42563, the Supreme Court of Nigeria held as follows:- “It is well settled that any proceeding conducted in breach of a party’s right to fair hearing is a nullity. See A.G RIVERS STATE V UDE & ORS (2006) 17 NWLR (pt 1008) 436 AND NICHOLAS CHUKWUJEKWU UKACHUKWU V P.D.P & ORS (2014) LPELR 22115(SC).”

In conclusion, all the issues for determination as set out by the Appellant are hereby resolved in favour of the Appellant and against the Respondent. Thus, the appeal succeeds and it is hereby allowed. The decision of the Federal High Court in Suit No. FHC/ABJ/CR/258/2019 delivered on 23rd November, 2020, being a nullity, it is accordingly set aside including the consequential orders of forfeiture thereto. No order as to cost.

HARUNA SIMON TSAMMANI, J.C.A.: I had the advantage of reading in advance the draft of the judgment delivered by my learned brother, Danlami Zama Senchi, JCA. ​ My learned brother, D.Z. Senchi, JCA has painstakingly and exhaustively considered and pronounced upon all the essential issues that came up for determination in this appeal. Clearly, from the facts as disclosed in the record of appeal, the Appellant was not accorded a hearing before the order of forfeiture of his property was made by the trial Court.

That being so, the order of forfeiture made against the Appellant was a nullity and liable to be set aside ex debito justitiae. It is for the above reason and the other reasons detailed in the lead judgment that I agreed that the appeal has merit and it is hereby allowed. I abide by the consequential orders made by my learned brother.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I had read before now in draft the lead judgment just delivered by my learned brother, Danlami Zama Senchi, JCA. I am in complete agreement with the reasoning and conclusion contained therein. ​ I therefore also allow the appeal. I hereby set aside the judgment of the Federal High Court in Suit No. FHC/ABJ/CR/258/2019 delivered on 23rd November, 2020, by O. E. Abang, J.

Judgment

EBIOWEI TOBI, J.C.A. (Delivering the Leading Judgment) : The Appellant in this appeal was charged on a one count charge for the offence of Obtaining Money by false pretense punishable under Section 1(3) of the Advance Fee Fraud and Other Related Offences Act, 2006. The lower Court after taking the evidence of the parties evaluated same and the submission of Counsel, delivered its judgment on 28/02/2022 as found at pages 178-196 of the record of this appeal.

In the said judgment, the Lower Court, presided over by his Lordship, Fadawu Umaru J. of the Borno State High Court, Maiduguri Judicial Division, convicted the Appellant for the offence charged, and sentenced him to Seven years imprisonment. The lower Court which is also the trial Court specifically at pages 194-195 of the record held thus: “It is apparent from the testimonies of PW1, PW2 and PW3 that the accused made a representation that he was awarded a contract by the Danish Refugee Council when he in fact knew it to be false.

The EFCC thus have the power to investigate and prosecute the case. It is the law that once a person is induced by another through the medium of a contract to part with his money or goods such a contract ripens to obtaining by false pretence. See EBGUE V. FEDERAL REPUBLIC OF NIGERIA (2020) 11 NWLR (Pt. 1734) 103 at 129 to 130. I hold that the act of the accused is a criminal act and the EFCC has the power to investigate and prosecute this case. I hold that the EFCC did not act as a debt recovery agency in this case. This issue is therefore resolved in favour of the Prosecution.

On the whole, I hold that the Prosecution has proved the guilt of the accused person beyond reasonable doubt. Consequently, the Court hereby finds you Isaac Harami Ndahi guilty and accordingly convict you for the offence of obtaining under false pretence under Section 1(3) of the Advance Fee Fraud and Other Related Offences Act 2006.’’ It is this judgment that the Appellant is appealing against. The Appellant filed a Notice of Appeal on 29/3/2022 of 4 grounds found at pages 197-200 of the record.

Although, the fact that culminated into this appeal are not complicated, it is however, the application of the law to those facts that have thrown up some challenges in the case and indeed this appeal.

The case of the Respondent in the lower Court presented through PW1, PW2 and PW3 is that one Engineer Abba Aji Monguno, the nominal complainant wrote a petition against the Appellant to the Economic and Financial Crimes Commission (EFCC) on 6/6/2020, alleging that the Appellant deceived him into parting with the sum of Three Million Naira (N3,000,000.00) as the Appellant used a fake Purchase Order purported to have emanated from the Danish Refugee Council under the guise of executing a contract which was found to be false.

This amounts to a fraudulent act which led to the arraignment of the Appellant by the EFCC, and event ual conviction and sentencing of the Appellant for the offence of Obtaining under False Pretence contrary to Section 1(3) of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006.

Conversely, the Appellant’s case is that he made no such representation to the PW1, although, he admitted borrowing the sum of N3,000,000.00 from the nominal complainant, who is the father of PW1 which he could not pay back because thieves burgled his house and took the sum of Six Million Naira (N6,000,000.00) from which the payment to the Appellant should have been made. While not denying that he took money from the nominal complainant, the Appellant denied vehemently that he made a representation to PW1 that he needed the money to execute a contract.

The lower Court did not believe him and therefore, convicted and sentenced him on the ground that the Respondent had proved his case beyond reasonable doubt. Upon filing the Notice of Appeal, and compilation and transmission of the record to this Court, the Appellant filed his brief through his counsel, Ibrahim Haruna Ngada Esq., wherein he formulated 3 issues for determination viz: 1. Whether oral evidence of contents of a document that was rejected in evidence can be relied upon by the trial Court. 2.

Whether the burden of proof beyond reasonable doubt for the offence of obtaining money under false pretence has been discharged by the Respondent at the trial Court to warrant the conviction and sentence of the Appellant. 3. Whether in the case of obtaining by false pretence, the burden of proof shifts to the Appellant to prove his innocence.

Arguing the first issue, Appellant’s Counsel submitted that the lower Court relied absolutely on the oral evidence of PW2 who stated that his investigation revealed that there was no contract and the money transferred to the Appellant’s account was used for a different purpose by sending the money to different accounts, making cash withdrawal and settling premature loans.

Learned counsel further submitted that PW3’s evidence that he analyzed the statement of account of the Appellant which revealed that the Appellant spent the money for purposes the money was not taken was rejected in evidence, and this cannot be relied upon by the Court to convict the Appellant, citing in reliance Alam Oparaji & Ors Vs. Nwosu Ohanu & 7 Ors (1999) 9 NWLR(Part 618) page 270 at 307, Dr. Chris Nwabueze Ngige Vs. Mr. Peter Obi & 449 Ors (2006)14 NWLR(Pt.999).

It is the further submission of counsel that the evidence of contents of a document is not admissible save the document itself, as provided for by Section 125 of the Evidence Act 2011 and the decision of the Court in General Sani Abacha & 3 Ors Vs. Chief Gani Fawehinmi (2000) 6 NWLR (Part 660) Page 228 at 295. Learned counsel submitted further that the trial Court approbated and reprobated at the same time when it rejected the document, but admitted the oral evidence over the document in convicting the Appellant.

Learned counsel urges this Court to resolve the first issue in favour of the Appellant. On issue 2, Learned Appellant’s counsel submitted that the burden of proof of a criminal charge is on the prosecution which is proof beyond reasonable doubt, Learned counsel referred this Court to a plethora of authorities, among which are: The State V. Nathaniel Okpala (2012) 3 NWLR (Part 1287) page 388 at 400-401 paras H-D, Enesi Lukman Abdullahi Vs. The State (2008)17 NWLR (Part 1115) page 203 at 216 Para H, Sabina Chikaodi Madu Vs. The State (2012)15 NWLR (Part 1324) Page 405 at 454-455 paras H-B.

It is the further submission of Counsel that the inability of the nominal complainant, Engr. Abba Aji Monguno to testify, and the none tendering of the purported fake or false Purchase order by the Respondent in the trial Court made the decision of the Court untenable. Learned Appellant’s counsel anchored this submission on the evidence of PW1 at page 162 line 17 of the record to the effect that no document was ever given to the nominal complaint by the Appellant.

On Exhibit B, Learned Counsel submitted that it is documentary hearsay and that by Section 38 of the Evidence Act 2011, is inadmissible and not to be relied upon by the Court. He also submitted that the evidence of PW1 was mere allegations and suspicions and PW2 and PW3 inability to investigate the robbery incidence that affected the Appellant is fatal to the case of the Respondent and the decision of the Court.

The Respondent according to counsel is unable to prove beyond reasonable doubt the ingredients of the offence the Appellant was charged for and therefore, the conviction and sentence of the Appellant was wrong. ​ In his effort to further extricate the Appellant from the rope of conviction on his neck and the sentence, Learned Appellant’s Counsel submitted that the evidence of the Respondent’s witnesses could not establish the offence, and the investigation was casual as PW2 and PW3 admitted not writing to the Danish Refugee Council to confirm whether there was a fake order or even if the said Ibrahim Mbasuwa was a contractor as explained by the Appellant.

He urged this Court to hold that there was no false Pretence. Learned Appellant’s Counsel did not only submitted that the Respondent could not establish false pretence and the element of fraud, but also that the case of the Respondent is based purely on mere suspicion which has no place in criminal liability referring to University of Calabar V. Franklin C. Ugochukwu & 9 Ors (2007)17 NWLR (Part.1063) page 248 at 264 paras B-G.

On the final issue, Learned Counsel submitted that the burden of proving guilt is on the Respondent and this burden does not shift, relying on Federal Republic of Nigeria Vs. Mohammed Usman & Anor (2012) 8 NWLR (Part 1301) page 141 at 156-157 paras H-A, Corporal Desmond Ononuju Vs. The State (2014) 6 NWLR (Part1409) page 345 at 389-390 paras G-A.

It is the submission of counsel that the trial Court shifted the burden to the Appellant to prove his innocence when it asked him to call his friend, Ibrahim Mbasuwa to tender the document from Danish Refugee Council, or any document from the police or call a neighbor to prove that the Appellant’s house was burgled. Learned Counsel for the Appellant finally urged this Court to allow the appeal, set aside the judgment of the trial Court, discharge and acquit the Appellant.

The Respondent through Ojogbane Amade Johnson Esq., filed its brief on 05/7/2022 and therein formulated a sole issue for determination viz; Whether the learned trial judge was right to have convicted the Appellant on a one-count charge of obtaining under false pretense and sentenced to seven years imprisonment under Section 1(3) of the Advanced Fee Fraud and Other Related Offences Act 2006.

In his submission on this sole issue, learned Respondent’s Counsel invited this Court to take judicial notice of the combined effects of Sections 1(1) (a), and Section 20 of the Advanced Fee Fraud and Other Offences Act, 2006 pursuant to Section 112 of the Evidence Act 2011, together with the case of Brilla Energy Ltd. Vs.

F.R.N (2018) NWLR part 1645, while listing the ingredients of the offence of obtaining by false pretense, and urged this Court to dismiss the appeal. ​ In respond to the submission of the Appellant in paragraphs 4.1.1 and 4.1.2 of his brief, the learned Respondent’s counsel submitted that PW2 and PW3 testified as operatives of the EFCC, and were competent to testify as their evidence were based on their investigation, and such evidence cannot be hearsay, citing Interdrill (Nig) Ltd Vs. United Bank for Africa Plc (2017) ALL FWLR (pt.904) SC Page 1177 at 1193 paras E-H.

Relying on the evidence of PW1, PW2 and PW3, the documents tendered in Court, learned Respondent’s Counsel submitted that the Respondent has discharged the burden placed on it by law to prove the guilt of the Appellant beyond reasonable doubt which its need not prove by a host of witnesses. It is the further submission of learned counsel that the case of Dr. Chris Nwabueze Ngige Vs. Mr. Peter Obi & 449 Ors (2006)14 NWLR (Pt. 999) cited by the learned Appellant’s counsel was irrelevant as the trial judge did not rely on the rejected document in his judgment.

Learned Respondent’s Counsel urged this Court to take judicial notice of Sections 1,3,4,5, 6, 7 and 122(2)(a) of the Evidence Act 2011 which imposes an obligation on the Court to admit evidence and facts that are relevant to the fact in issue which was relied upon by the trial Court. Learned Counsel also referred this Court to pages 163-165 of the record and further reviewed the evidence of PW1 and PW2 while submitting that Exhibit B does not amount to documentary hearsay.

Learned Counsel urged Court to dismiss the appeal and affirm the decision of the trial Court. ​ The submissions of counsel on behalf of parties to this appeal revealed the precise nature of the facts of the case. The Appellant was charged, tried and convicted for an offence contrary to and punishable under Section 1 (1)(b) and 1(3) of the Advance Fee Fraud and other Related Offences Act, 2006.

The charge in summary is that the Appellant made a representation which he knows to be false to the effect that he had a contract or a Purchase Order from Danish Refuge Council, upon which he took N3,000,000 from one Egnr Abba Aji Monguno for the purpose of executing the contract which was alleged to be faked and probably non-existing. In simple language, the Appellant allegedly collected the said money on false Pretence. The lower Court subjected the Appellant to full trial, took evidence, and finally convicted and sentence the Appellant for the offence charged.

The Appellant is now challenging his conviction on the premise that the Respondent could not prove the offence for which he was charged. Before I look at the merit of this appeal, I should reproduce the provision of the law the Appellant was charged, convicted and sentenced for.

The section provides thus: “Notwithstanding anything contained in any other enactment or law, any person who by any false pretence, and with intent to defraud – (a) obtains, from any other person, in Nigeria or in any other country for himself or any other person; or (b) induces any other person, in Nigeria or in any other country, to deliver to any person; or (c) obtains any property, whether or not the property is obtained or its delivery is induced through the medium of a contract induced by the false pretence, commits an offence under this Act… (3) A person who commits an offence under Subsection (1) or (2) of this Section is liable on conviction to imprisonment for a term of not more than 20 years and not less than seven years without the option of a fine.” From the above provision, the prosecution must prove the element of false pretence with the intention to defraud against a defendant for any conviction to stand.

See Ikpa vs State (2017) 4 NWLR (pt 1609) 175, Onwudiwe vs FRN (2006) LPELR-2715 (SC), Adeniji vs FRN(2021) LPELR-52818 (CA). The trial Court had convicted and sentenced the Appellant which translate to mean that the Court was satisfied with the evidence before it that the Respondent had proved the ingredient of the offence beyond reasonable doubt by either direct evidence, circumstantial evidence, and or confessional statement.

My duty in this appeal is not to disturb the finding of facts by the trial Court but rather to inquire whether the decision of the trial Court is correct based on the facts before it, except and of course, the finding was perverse. I will interfere to do justice if the finding is perverse. See Siwoku vs Fasakin (2022) 12 NWLR (pt 1844), Blessing vs FRN (2015) 13 NWLR (pt 1475) 1. This is because the duty of any Court is to do justice and by this, substantial justice and not technical justice. This is sacrosanct in this Court and indeed any Court of law.

See Nzekwe vs Anaekwenegbu (2019) 8NWLR (pt 1674) 235, Akpan vs Bob (2010) 17 NWLR (pt 1223) 421, Ogunyade vs Oshunkeye (2007) 15 NWLR (pt.1057) 218. In doing so, I also must make a point very clear which is that, it is of no moment to inquire on the evidence as to whether the Appellant’s house was burgled into and the sum of N6,000,000.00 stolen. Also from the facts of the case and the charge against the Appellant, it is not relevant at all whether the Appellant paid back the money or the reasons he could not pay back.

The offence is related to when and why the Appellant took the money from PW1’s father and maybe, what he did with the money but certainly, not whether he has paid or why he has not paid. All the reference in the judgment and the submissions of counsel on whether the case of the burglary was reported to the police and on whom lies the burden to prove that is a completely out of place here. I certainly will not engage in such a wasteful exercise.

I will rather deal with issues relevant to this appeal. ​ In this regard, I wish to adopt the three issues by the learned Appellant formulated ’s counsel in his brief. These issues, to my mind, are apt and covered the complaint contained in the grounds of the Appeal. However, before I do so, I will state some general principle of criminal law that will assist me in deciding this appeal. Whether I will allow or dismiss this appeal depends solely on whether the trial Court applied the established principle of criminal law in deciding the case before it.

I will not be breaching any law if I take us back to an undergraduate criminal law class to refresh our memory on the established criminal law principles. It is a settled principle of criminal law as stated by the Appellant that for an accused to be convicted for an offence, the burden to prove the guilt lies with the prosecution, in this instance, the Respondent.

The point I am trying to make is that the burden of proof in criminal cases is clearly and squarely rest on the prosecution (the Respondent in this appeal), and this burden does not shift and the standard required is beyond reasonable doubt. See Kanu vs. A.G. Imo State (2019) 10 NWLR (Pt. 1680) 369, Almu vs. State (2009) 10 NWLR (Pt. 1148) 31, Charles Egbirika vs. State NSCQR Vol. 57 2004 p. 457, Chukwuemeka Agugua vs. The State (2017) 10 NWLR (Pt. 1573) 254, State vs. Yahaya (2019) NWLR (Pt. 1690) 397 @ 416.

I must hasten to also add that when the Appellant makes an assertion the burden to prove that assertion falls on him. This does not mean that the Appellant has a duty in law to prove his innocence. He certainly does not. That is why the fact that an accused lied cannot be leveraged by the prosecution to establish his case. See Okereke vs State (2016) 5 NWLR (pt. 1504) 107.

The duty on the Respondent to prove that the Appellant is guilty of the offence he is charged for must be either by direct evidence, circumstantial evidence or confessional statement. See State vs Sadiq (2022) 5 NWLR (pt 1824) 413, Okiemute vs State (2016) 15 NWLR (pt. 1535) 297.

Once again and for the avoidance of doubt, I must state that the burden to prove that the Appellant committed the offence he was charged for is solely on the shoulders of the Respondent. The standard of proof unlike civil cases is not a balance of probability but a very high probability which the law refers to as proof beyond reasonable doubt.

Proof beyond reasonable doubt does not mean beyond all shadow of doubt or beyond all reasonable doubt but rather, proof that any reasonable man will be right to agree with the fact that the accused committed the offence because it is compelling and convincing with no room for any serious or substantial doubt. If the doubt is just a fanciful doubt, that is, doubt that does not affect any of the ingredients of the offence, the prosecution would not be said to have proved the case beyond reasonable doubt. I will just refer to one or two cases here. In Ankpegher vs.

The State (2018) 1 NWLR (Pt. 1631) 484, the apex Court per Okoro, JSC held: “Both counsel representing the appellant and respondent respectively have admirably stated in their respective briefs of argument the legal meaning of the phrase proof beyond reasonable doubt and I commend them for this agreement even though they disagree on the quantum and quality of evidence to reach that standard. For the avoidance of doubt, I shall restate, though briefly the meaning of proof beyond reasonable doubt.

In all criminal trials, the burden is on the prosecution to establish or prove the essential ingredients of the offence which an accused person is charged with beyond reasonable doubt, and the prosecution will readily achieve this if it can assemble credible, cogent and believable/or reliable evidence against the accused person. Thus, proof beyond reasonable doubt does not mean proof beyond all shadow of doubt. It simply means establishing the guilt of the accused person with compelling and conclusive evidence. It does not mean proof beyond all shadow of doubt or proof to the tilt.

As was stated by Lord Denning J, in Miller v Minister of Pensions (1947) 2 All ER 372, a case which has been severally relied upon by Courts in Nigeria, it does not mean proof beyond the shadow of doubt. The distinguished and revered jurist observed: The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong as to leave only a remote possibility in his favour which can be dismissed with one sentence – of course it is possible but not in the least probable the case is proved beyond reasonable doubt.

See also Nwaturuocha v. The State (2011) 6 NWLR (Pt.1242) 170, Smart v. The State (2016) 1-2 SC (Pt.11) 41, (2016) 9 NWLR, (Pt.1518) 447, Oseni v. The State (2012) LPELR-7833 (SC), (2012) 5 NWLR (Pt.1293) 351, Hassan v.The State (2016) LPELR-42554 (SC). In The State v. Onyeukwu (2004) 14 NWLR (Pt.813) 340, this Court held that the expression beyond reasonable doubt is a concept founded on reason and rational and critical examination of a state of facts and law rather than in fancied whimsical or capricious and speculative doubt.

From all that has been said above, it has to be noted that there is no burden on the prosecution to prove its case beyond all doubt or to the tilt. It is just to establish the guilt of the accused person by credible, cogent, reliable and believable evidence.” Similarly in Nwaturuocha vs. State (2011) 6 NWLR (Pt. 1242) 170, the apex Court held: “Proof beyond reasonable doubt is not proof to the hilt. It is not proof beyond all iota of doubt.

One thing that is certain is that where all the essential ingredients of the offence charged have been proved or established by the prosecution, as done in the instant matter, the charge is proved beyond reasonable doubt. Proof beyond reasonable doubt should not be stretched beyond reasonable limit.” The criminal justice system will rather let 10 guilty people go scot-free than for one innocent person to be wrongly convicted. This is why conviction would not be based on suspicion no matter how grave but on clear evidence pointing to the accused as the person who indeed, committed the offence.

SeeIgbikis vs State (2017) 2-3 S.C. (pt 1) 78, State vs Ajayi (2016) LPELR-40663(SC). In Udor vs State (2014) LPELR-23064(SC) to drive home this point the apex Court held: “The law is indeed trite that suspicion, no matter how strong it is, cannot take the place of legal proof. Items of evidence raising suspicion, which put together, do not have the quality of being corroborative evidence to ground any conviction for a criminal offence. See the State v. Ogbubunjo (2001) 2 N.W.L.R. (Pt.698) 576.” Per MOHAMMED, J.S.C.

This further buttress the legal principle that in a criminal trial, once there is doubt in the case of the prosecution, it should be resolved in favour of the accused person. See Bassey vs State (2012) 12 NWLR (pt 1314) 209, FRN vs Abubakar (2019) LPELR-46533(SC). Let me be quick to add that for the doubt to be relevant it must be material that is to say it must affect or relate to the ingredient of the offence, that is, it must make a difference in the case to determine whether the accused is guilty or not. See Arfo vs FRN (2022) LPELR-58043 (CA).

Let us return from our undergraduate days and specifically address the issue. In this respect, it is very important to roll out the ingredients of the offence the Appellant was charged for in the lower Court. I had mentioned above that clearly the Respondent would have proved that there was false pretence with intention to defraud. The law under which the Appellant was charged defined what will amount to false pretence.

I quote same as follows in Section 20 of the Interpretation Section of the Act as follows: “‘false pretence’ means a representation, whether deliberate or reckless, made by word, in writing or by conduct, of a matter of fact or law, either past or present, which representation is false in fact or law, and which the person making it knows to be false or does not believe to be true.” To amount to an offence of obtaining by false pretence, under this section as expressed in so many cases, the Respondent ought to prove the following ingredients as stated in Ezeani vs FRN (2019) LPELR-46800(SC) where the apex Court held as follows: “Appellant was charged with the offenses of conspiracy and obtaining by false pretences contrary to Section 1(1) (a); 1 (3) and 8 (a) of the Advanced Fee Fraud and other Fraud Related Offences Act Cap A6 Laws of the Federation of Nigeria 2004.

The law states as follows: “Section 1: Obtaining property by false pretences etc. Section 1(1): Notwithstanding anything contained in other enactment or law, any person who by any false pretence, and with intention to defraud: (a) Obtains from any other person in Nigeria or in any other country for himself or any other person who guilty of an offence under this Act… Section 1 (3): A person who is guilty of an offence under Subsection (1) or (2) of this Section is liable on conviction to imprisonment for a term of not less than ten years without the option of a fine….

On the counts of obtaining by false presence, the transaction has shown clearly as follow: 1. That there was a pretence. 2. That the pretence emanated from the accused persons including the appellant. 3. That the pretence was false. 4. That the appellant and his co-accused person knew that it was false. 5. That there was an intention to defraud 6. That the monies obtained from the PW1 was capable of being stolen, and 7.

That the appellant induced the owner of the money to transfer his whole interest in the property……” Per OKORO, J.S.C One more case directly on the ingredients of the offence will not hurt. This is the case of Darlington vs FRN (2018) 11 NWLR (pt 1269) 152, the apex Court held:

“The offence of obtaining by false pretence created by Section 1(1)(a) of the Advance Fee Fraud and other Related Offences Act, 2006 is constituted or committed upon the existence of the following facts

I. A pretence is made by way of representation.

II. From the accused person. III. To the person defrauded. IV. The representation is a pretence. IV. The accused knows or has reason to know that the representation is false or does not believe in truth of the representation. VI. The accused makes the false representation with intent to defraud the victim to whom the false representation was made. VII. Consequence of the false representation the accused induced the victim to deliver or transfer some property or interest in the accused or some other person. VIII. The property transferred is capable of being stolen i.e. is as portable.

These elements of the offence, under Section 1(1)(a) of the Advance Fee Fraud and Other Related Offences Act, are affirmed by this Court as the elements constituting the offence: ONWUDIWE v. FRN (2006) ALL FWLR (Pt.319) 774 at 779-780; (2006) 10 NWLR (Pt.988) 382. In fraud generally, there is always element of deceit or intent to deceive flowing from the fraudulent action or conduct.” Per EKO, J.S.C.

On the strength of the above, the decision of the lower Court will only be affirmed if those elements are proved beyond reasonable doubt by either direct evidence, circumstantial evidence or through a confessional statement. At this point, I will reproduce the issue for determination in this appeal in the Appellant’s brief which I hereby adopt. The issues are: 1. Whether oral evidence of contents of a document that was rejected in evidence can be relied upon by the trial Court. 2.

Whether the burden of proof beyond reasonable doubt for the offence of obtaining money under false pretence has been discharged by the Respondent at the trial Court to warrant the conviction and sentence of the Appellant. 3. Whether in the case of obtaining by false pretence, the burden of proof shifts to the Appellant to prove his innocence. RESOLUTION ISSUE ONE On issue 1, I am of the opinion that the decision of the trial Court was not based on rejected evidence as the Appellant’s counsel submitted.

It is trite law that a document rejected by a Court has no life and cannot be relied upon by any Court in arriving at a decision. The rejected document is of no relevance whatsoever in law and lacks probative value. See Amgbare vs Sylva (2009) 1 NWLR (pt 1121) 1, Airtel Network Ltd vs Plus Ltd (2020) 15 NWLR (pt 1747) 235, Emokpae vs Stanbic-IBTC P.M Ltd (2015) 17 NWLR (pt 1487) 57. I have gone through the judgment, and I am comfortable in holding that the decision of the Court was not based on the rejected document but rather on the evidence of PW1, PW2 and PW3.

What constitute evidence before a Court are oral, documentary or real evidence, and any of the parties before a Court can establish his case by any of the evidence listed above.

I am not aware of any law that says that oral evidence can only be relied upon when it corresponds with a document.

Although, in law, a type of evidence for instance, documentary evidence, can carry more weight than oral evidence, but a party can still establish his case by oral evidence alone in the absence of any documentary evidence. The fact that the document was tendered and rejected does not make any oral evidence on the content of the document inadmissible as Appellant’s counsel wants us to believe.

The position of Appellant’s counsel in this front, is new learning to me, a point I do not want to learn because, it does not represent the correct legal position. Although there is a common saying that ‘we learn everything’, but certainly not what does not represent the correct and current legal position in an issue.

What the law requires is that once a document has been tendered and admitted, no oral evidence will be allowed which is at variance with the documentary evidence. See Ibrahim vs Abdallah & Ors (2019) LPELR-48984(SC), Bello vs Idris (2022) LPELR-56730 (CA).

In the instant case, there is no documentary evidence which can be compared with the oral evidence to show any variance. The Respondent’s witnesses are at liberty to testify even if the evidence is on all force with the content of the rejected document. It is only wrong if the Court base its judgment on the document. In this appeal, the judgment is based on the oral evidence and not the rejected document. To buttress this point I will quote again the decision of the trial Court at pages 194-195 of the record.

This is what the Court said: “It is apparent from the testimonies of PW1, PW2 and PW3 that the accused made a representation that he was awarded a contract by the Danish Refugee Council when he in fact knew it to be false. The EFCC thus have the power to investigate and prosecute the case. It is the law that once a person is induced by another through the medium of a contract to part with his money or good, such a contract ripens to obtaining by false pretence. See EBGUE V. FEDERAL REPUBLIC OF NIGERIA (2020) 11 NWLR(Pt. 1734) 103 at 129 to 130.

I hold that the act of the accused is a criminal act and the EFCC has the power to investigate and prosecute this case. I hold that the EFCC did not act as a debt recovery agency in this case. This issue is therefore resolved in favour of the Prosecution. On the whole, I hold that the Prosecution has proved the guilt of the accused person beyond reasonable doubt.

Consequently, the Court hereby finds you Isaac Harami Ndahi guilty and accordingly convict you for the offence of obtaining under false pretence under Section 1(3) of the Advance Fee Fraud and Other Related Offences Act 2006.’’ There is nothing in this portion of the judgment or any part of the 25 pages judgment which suggest that the lower Court relied on the rejected document. While I am firmly of the opinion that the decision of the trial Court is not based on the rejected document, I will therefore, resolve this issue in favour of the Respondent.

ISSUES TWO & THREE I will address issues 2 and 3 together. The question are whether the Respondent proved its case at the trial Court beyond reasonable doubt and whether the Court appropriately placed the burden of prove in the right place? I have stated above the ingredients of the offence the Appellant was charged with, and for which he was convicted and sentenced. I have also stated that the Respondent has a duty in law to prove beyond reasonable doubt all the ingredients of the offence.

The Respondent case at the trial Court as prosecution is that, the Appellant made a false presentation to the father of the PW1 that he has a contract with Danish Refugees Council which made him depart with N3,000,000.00 to enable the Appellant execute the contract. By the wordings of the charge sheet, the Appellant was alleged to have used a fake purchase order to carry out this deceptive act. The fake purchase order was falsely and fraudulently presented as original to PW1’s fatherwhich he acted on.

This the Appellant denied of ever presented any purchase order to the nominal Complainant, Engineer Abba Aji Monguno but rather, told him to borrow to the Appellant, some money for him to carry out a contract awarded to his friend for which the said Abba Aji Monguno was to get Three Hundred Thousand Naira (N300,000) as interest or profit from the loan. The question here therefore is whether the evidence before the trial Court lane toward obtaining money by false pretence, based on the alleged fake purchase order or on the fact that it was a loan given to the Appellant.

It is my opinion that if the trial Court had agreed with the Appellant that it was a loan he secured from Engr. Abba Aji Mongunor, the decision will not have gone the way it did. The decision went the way it did because the Court is of the view that the Appellant made a false representation to make the nominal Complainant part with his N3,000,000.00. What is paramount here therefore, is the status of the purchase order presented to the nominal Complainant.

The question therefore is, whether there is sufficient evidence before the trial Court that such a representation was made by the Appellant to Abdulwahab Abba Aji, the PW1 or his father, the nominal complainant. I must state without any equivocation that the Respondent has the duty and indeed burden to show before the Court that a purchase order was indeed, shown to the nominal complainant which turned out to be fake. This is a key factor in determining this appeal.

The operative word is ‘fake’. For anything to be fake, there must be an original. The purchase order will be declared fake after comparing same with the original.

I must make the point the Appellant has ably made through his counsel that there is no document before the Court indicating or looking like a purchase order. The Appellant has also rightly in my view challenged the investigation of the PW2 and PW3 as not being thorough when it did not contact Danish Refugee Council to know whether there was a contract given to either the Appellant or the friend of the Appellant whom the Appellant said got the contract from. The fact that the Appellant was unable to produce his friend Ibrahim Mbasuwa is not damaging to his case.

This will only become relevant if the Respondent had produced or given satisfactory evidence that the Appellant presented fake purchase order to the PW1. The statement written by the Appellant which are Exhibits A, A1-A5 are not admission or confessions as they deny the offence the Appellant was charged for. The Appellant admitted receiving the money from PW1 but as loan, and not on any representation of falsehood with intention to defraud. In the circumstance, the burden is on the shoulders of the Respondent to have shown before the Court the ingredients of the offence.

I have gone through the judgment of the trial Court, I am unable to see where the Court gave reasons for the finding that all the ingredients of the offence has been proved. With due respect, no thorough evaluation was made of the evidence before the trial Court. I will at this point look at the entire record of the appeal viz- vis the evidence of the Respondent in determining whether the lower Court was right in its findings. In doing so, I am conscious of the fact that I will not interfere with the finding of the lower Court except it is perverse.

The case of the Respondent is founded on the evidence of PW1, PW2 and PW3. The evidence of PW1, Abdulwahab Abba Aji is found at pages 160-163 of the record. The PW1 made no mention of any purchase order presented to him talkless of its being fake.

His viva voice evidence at pages 160 and 161 of the record on the point states thus: “The accused called me sometime around 5th September, 2019 and asked me if I have money as he has secured a contract with Danish Refugee Council and that he need the sum of N2,000,000.00k…On 18/9/2019, that is after two weeks that the accused was to return the money the accused asked me to add N1,000,000.00.00K on the basis that the contract he is executing is at 80% completion and that he needs the N1,000,000.00k to complete the contract on the same terms and condition.” There is nothing in the above evidence that talked about any Purchase Order presented to the PW1.

This is important because the case of the Respondent against the Appellant is principally founded on alleged fake purchase order. The witness gave no evidence of purchase order presented to the father of PW, that is the nominal complainant, to convince him part with the money. PW2 is Emmanuel Emeka Ibeneme, an operative of the EFCC who was part of the team that investigated the petition against the Appellant marked as Exhibit B.

The evidence-in-chief of the PW2 also made no mention of purchase order, as all the witness said as his investigation revealed that the sum of N3,000,000.00 was transferred to the Appellant by the PW1 father for the purpose of a contract which was not in existence. The Appellant used the money for other purpose instead of executing the alleged contract which was found to be non-existing. The PW2’s investigation revealed that there was no contract issued to the Appellant.

He categorically said at page 165 of the record that: “There was no contract the accused only used that medium to obtain money from the complainant by false pretence.” Under cross–examination, PW2 admitted that his investigation did not take him to Danish Refugee Council because the Appellant did not present any document. In spite of this, the Appellant was charged for obtaining money under false pretence on the premise of presenting fake purchase receipt. This is strange. PW3 is an official of EFCC who also investigated the petition against the Appellant.

His evidence found at pages 166-169, is not radically different from PW2’s evidence. All that the witness did was to analyze the response from Guaranty Trust Bank with respect to the Appellant’s bank account domiciled there, and discovered that the money the Appellant received was not used for the purpose it was received. The witness did not take part in the final investigation, and under cross-examination he said he is not ‘aware if the accused (sic) facilitated a contract. I did not partake to the conclusion of the investigation’.

The documents attached to Exhibit B only shows that the sum of N3,000,000.00 was paid to the Appellant which he did not deny. It also shows that the Appellant tried to payback some amount out of the money. There is no evidence apart from the oral evidence that the money was used for other purpose. Once again there is nothing in his evidence relating to presentation of fake purchase order. It would appear to me that the way the charge was couched is such that the falsehood is based on the allegation of presentation and using of a fake purchase order.

This implies in my view a document which is a purchase order must be tendered. None of the Respondent’s witnesses mentioned anything about purchase order or the nature of the contract they claimed Appellant told the PW1’s father he had from the Danish Refugee Council. I will now turn to the evidence of the Appellant before the trial Court. His evidence is that he told the PW1 that he needed money to join someone by name Ibrahim Mbasuwa to execute a contract.

In his testimony, Appellant said in his evidence In-Chief at page 175 of the record that: “… I told the officer that I borrowed the money to join with a friend to secure a contract. I was shown the petition which I read I told the officer I had no purchase order… I did not obtain money by false pretence.” Under cross examination, Appellant said: “The N300,000.00k told (sic) was for the purpose of executing a contract.

I did execute the contract and I have no documents for the contract.” ​ I have gone through the above evidence there is no evidence whatsoever that fake purchase order was presented which misled the PW1’s father. While PW1 evidence is that the Appellant told him he needed the money to execute a contract he got from Danish Refugee Council, the Appellant said that he told the PW1 that he needed the money to jointly execute a contract with a friend.

In the light of this conflicting evidence, it is important to know how the trial Court evaluated the evidence to come to the conclusion that the Respondent proved its case beyond reasonable doubt. By the charge, the Respondent relied on a fake purchase order which was not part of the evidence of all the parties, and that the money was not used for the purpose it was taken for. There is no clear evidence on that apart from the PW2 and PW3 saying so.

The evidence of PW2 and PW3 will be inadequate in the light of the evidence of the Appellant that he used the money for the purpose he took same from the PW1’s father. There is no cogent evidence from PW2 and PW3 to prove that the Appellant actually gave the money to the people they claimed he gave the money to different from the main purpose it was given for. Since there is no such documentary evidence may be the counsel to the Respondent would have established same through skillful cross examination which he failed and did not.

Among the three ways of establishing criminal liability, it is only by circumstantial evidence that the Respondent can attempt to prove its case against the Appellant. As I had mentioned above, the question is not whether the Appellant collected N3,000,000.00K from PW1’s father or whether it was for the purpose of executing a contract, but whether the Appellant obtained the money under false pretence with intention to defraud by presenting or using a fake purchase order. The Appellant said he jointly executed a contract with the money with his friend who he could not produce.

The Respondent’s witness especially PW2 and PW3 said there was no contract. The question is how did the Respondent’s officers know that there was no contract when their investigation did not take them to Danish Refugee Council where the Appellant claimed his friend Ibrahim Mbasuwa got the contract from. This is even on the face of the glaring evidential on record when the Appellant gave the name of the company and the name of his partner with whom he was going to execute the contract. The EFCC did not investigate this, and failed in that respect. This is fundamental.

In the circumstances of this, the benefit of doubt should have to be resolved in favour of the Appellant. The Respondent having been unable to show that a fake purchase order was shown to PW1’s father, and that the money received by the Appellant from the PW1 was used for other purpose, the trial Court was wrong to have convicted the Appellant. The burden to establish the guilt of the Appellant is on the Respondent.

However, for the Respondent to allege that the Appellant did not produce his friend, Ibrahim Mbasuwa because the Appellant feared his testimony may work against him, is to turn the law upside down by asking the Appellant to prove his innocence.

Under no circumstance in a case of this sort in our accusatorial system of criminal administration and trial is the defendant required to prove his innocence. See Okoh vs State (2014) 2-3 S.C 184. In the recent case of Ibrahim vs State (2022) LPELR 58001 (SC), the Supreme Court on this point held: “Generally, there is no duty on the accused/Appellant to prove his innocence since under Nigeria system of criminal justice, there is no question of accused proving his innocence before the law Court hence during a trial, an accused may not utter a word as he is not bound to say anything.

The duty is on the prosecution to prove the charge against the accused beyond reasonable doubt whether or not the accused says anything. See Igabele v State (2006) 6 NWLR (Pt 975) 100 at 108, Williams v State (1992) 8 NWLR (pt 261) 515 at 516-517, Section 137 Evidence Act, Alonge v Inspector General of Police (1959) NSCC 169; (1959) 4 FSC 203.

The above principle is further enhanced in the provisions of the Constitution of the Federal Republic of Nigeria, which Section 36(5) of the 1999 provides thus: “Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty provided that noting in this section shall invalidate any law by reason only that the law imposes upon any such person the burden of proving particular facts.” Per PETER-ODILI, J.S.C. I resolved issues 2 and 3 in favour of the Appellant.

It is my considered view that the trial Court was wrong to have convicted the Appellant for the offence he was charged as the Respondent was unable to prove beyond reasonable doubt that the Appellant indeed, committed the offence. No Court could even depend on circumstantial evidence to convict a person when such evidence does unequivocally point to him as the person who committed the offence.

In the absence of clear evidence that the Appellant made false representation on the existence of a contract by presenting a fake purchase order with the intent to defraud PW1’S father, the conviction cannot stand. This appeal is therefore allowed and the judgment of Fadawu Umaru J., of the Borno State High Court delivered on 28/2/2022 wherein the Appellant was convicted and sentenced to 7 years imprisonment is set aside.

I cannot in good conscience affirm the judgment. The Appellant, Isaac Harami Ndahi is hereby discharged and acquitted.

JUMMAI HANNATU SANKEY, J.C.A.: I had the benefit of reading in advance the lead judgment delivered by my learned brother, Ebiowei Tobi, J.C.A. I agree with his Lordship’s reasoning and conclusion. As has been stated in the leading judgment, the Appellant was arraigned before the lower Court on a one-count charge of obtaining money by false pretences punishable under Section 1(3) of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006. He pleaded not guilty to the charge and the Respondent adduced evidence through three witnesses in proof of the charge.

The Appellant also testified in his defence and called one witness. At the close of trial, the lower Court found the Appellant guilty as charged and sentenced him to seven years imprisonment. Dissatisfied, the Appellant filed an appeal to this Court wherein he complained on three grounds. The ingredients to prove a charge of obtaining money by false pretences punishable under Section 1(3) of the Act (supra) is as set out in the case of Ezeani V FRN (2019) LPELR-46800(SC) per Okoro JSC and Darlington V FRN (2018) 11 NWLR (Pt. 1269) 152 per Eko JSC.

The ingredients are – 1. that there was a pretence; 2. that the pretence emanated from the accused person; 3. that the pretence was false; 4. that the accused person knew it was false; 5. that there was an intention to defraud; 6. that the money obtained from the victim was capable of being stolen; and 7. that the accused induced the owner of the money/victim to deliver or transfer money or interest in property to the accused.

Upon examination of the evidence presented to the trial Court in satisfaction or proof of the above ingredients, PW1 was the son of the alleged victim, Engineer Abba Aji Monguno. His evidence was clearly less than satisfactory as he was neither the person who dealt directly with the Appellant in respect of the sum of N3,000,000.00 (Three Million Naira) received nor did he present the alleged fake/false Local Purchase Order based upon which the complainant gave the Appellant the money, at the trial Court.

PW2 and PW3 were officers of the EFCC who investigated the allegation made against the Appellant. However, apart from hearing from the complainant and taking the statement of the Appellant, which was not confessional, their investigation did not extend to the Danish Refugee Council to confirm whether or not it had a contract with the Appellant to establish the falsity or otherwise of any representation made to the complainant.

As a consequence of such shoddy investigation, the Respondent failed to establish the criminal intent of the offence alleged, also referred to as the mens rea in the actions of the Appellant when he requested and was given the sum of N3, 000, 000.00 by the nominal complainant. On his part, the Appellant did not deny receiving money from the complainant. His position however was that it was not done under false pretences, but that the money was given as a loan which he requested for to execute a contract.

Since the Respondent failed to prove otherwise, it failed to prove the charge against the Appellant. He is therefore entitled to an acquittal. It is therefore for these reasons, and for the fuller reasons in the lead Judgment, that I also allow the appeal. I abide by the consequential orders made therein.

JAMILU YAMMAMA TUKUR, J.C.A.: I read before today the judgment of my learned brother, EBIOWEI TOBI, JCA and I am in concord with his decision that the appeal has merit and should be allowed. I allow the appeal and join my brother in setting aside the judgment of the lower Court wherein the Appellant was convicted and sentenced to seven years imprisonment. The Appellant is discharge and acquitted.

Judgment

JAMES GAMBO ABUNDAGA, J.C.A. (Delivering the Leading Judgment) : The appellant and 6 (six) others were charged before the High Court of Imo State in Owerri Judicial Division with the offence of murder of one Chief (Sir) Augustine Ndukwu on 4th November 2010, contrary to Section 319 (1) of the Criminal Code, Cap 30 Vol. 11, Laws of Eastern Nigeria, applicable in Imo State. The plea of the accused persons including the appellant was taken on 31st October, 2010. The 1st accused person Uchenna Ndukwu pleaded guilty while the others, including the appellant pleaded not guilty.

Even though the 1st accused person pleaded guilty to the charge, the trial Judge in consonance with the principle of law in Criminal trial involving Capital offences entered a plea of not guilty for him. ​In the bid to prove the offence as contained in the charge, the prosecution (Respondent herein) called six witnesses and tendered the extra judicial statements of the accused persons which were admitted in evidence as Exhibits. The accused persons including the appellant entered their defence.

Thereafter counsel on both sides addressed the Court, following which the trial Court adjourned for Judgment. In the judgment delivered on 13th February, 2013, John Emesiobi and Vincent Emesiobi (2nd and 7th accused persons respectively) were discharged and acquitted, while the rest, 1st, 3rd, 4th, 5th and 6th accused persons were convicted and sentenced to death by hanging. The appellant (5th accused) is aggrieved with her conviction, and therefore filed an appeal to this Court. The Notice of appeal was filed on 11//3/13. The Notice of appeal contains two (2) grounds of appeal.

On due compilation and transmission of the record of appeal, the appellant proceeded to file her brief of argument. The brief of argument settled by her counsel, Madubuko Izuchukwu, Esq. was filed on 18/11/20 and deemed properly filed and served on 9/2/21. In reaction to the Appellant’s brief of argument, the Respondent filed her brief of argument settled by C.O. Chukwumaeze, Esq., Principal State Counsel, Imo State Ministry of Justice on 12/11/21. It was deemed properly filed on 9/2/2021. The appellant filed a reply brief on 25/1/22, and deemed properly filed on 9/2/21.

The briefs of argument were adopted on 25/01/22.

In the appellant’s brief of argument, a lone issue was distilled for determination, which is: “Whether the appellant was at home when the deceased was murdered and whether the plea of alibi did not avail the appellant.” On the part of the respondent, similarly a lone issue couched as the following was distilled for determination: “Whether by the evidence and exhibits before the Court, the trial Court was not right in convicting the appellant, her plea/defence of alibi having failed.” ARGUMENT ON THE ISSUES Learned Counsel for the appellant, in his submission referred to page 296 of the record of appeal where the learned trial Judge found that the appellant’s plea of alibi failed.

He also referred to pages 62 – 83 of the record of appeal which contains the evidence of PW1, which Counsel believes must have influenced the finding of the trial Court that the appellant’s plea of alibi failed. ​Counsel goes on to submit that the evidence of PW1 is hearsay, as the said PW1 therein narrated what DW4 (1st accused) told her. Counsel pointed out that the same DW4 (1st accused) denied all that he had told PW1 and blamed it on the fact that the police compelled him to say those things while he was in their custody.

Counsel further referred to the evidence of the IPO who was the team leader that investigated the case, whose evidence is that the appellant was arrested for an alleged phone call to the 1st accused person towards aiding his escape. Learned Counsel submitted that the appellant in her evidence raised alibi, stating that on 4/11/2020 she left the village about 7am to Owerri Stadium and returned to the village at 8pm. That at Owerri, she was at Dan Anyiam Stadium Owerri, training in handball in Owerri Grasshoppers International Stadium in preparation for Kaduna National Sports Festival.

That she left the stadium at about 11 – 12 noon and went back to her residence at No. 21, Njemanze Street, Owerri and was there till 4pm when she went back to the stadium for a second round of training up to 6.30pm. Counsel submits that from the evidence of witnesses, the appellant is a sportswoman. ​Stating the ingredients which must be proved by the prosecution in order to secure a conviction for murder, appellant’s counsel submitted that the burden of proof is beyond reasonable doubt.

The burden, he further submits does not shift from the prosecution, except in a few situations like when the accused person raises the defence of alibi, as in the instant case, and refers to the case of Madagwa v. The State (2009) ACLR Vol. 7 303 at 352 ratio 8. It is submitted for the appellant that where an accused person raises the defence of alibi on time and discharges the evidential burden by giving details of where he was at the time the offence allegedly took place, the duty to investigate it shifts to the prosecution to disprove at the trial. Counsel relies on the case of Ukwunnenyi v.

The State (1989) 4 NWLR (Pt. 114) 131 at 378 and 389. Counsel further points out that the appellant made three extrajudicial statements – on 4/11/10, 8/11/10 and 28/12/10 in all of which she maintained her defence of alibi and gave the same details of her whereabouts, and this she did in good time. ​Speaking to the issue as to whether the police investigated the alibi, counsel submitted that the investigation conducted by the police concerning the defence of alibi was lopsided, incomplete and not done in accordance with the law.

Referring the Court to the evidence of PW4 (the police team leader) who carried out the investigation, it is submitted that the first arm of the alibi raised by the appellant to the effect that she went for training at Grasshoppers-International Handball Stadium Owerri that morning appeared not to have been investigated. On the evaluation of evidence by the trial Judge and his finding that the plea of alibi failed, it is submitted by appellant’s counsel that the said finding was perverse and misdirection in law.

Counsel points out that the trial Judge found as a fact that the appellant was at the stadium and was at Njemanze Street Owerri, and refers to page 296 of the record of appeal. Counsel therefore, wondered how the defence of alibi failed.

It is therefore contended for the appellant that the inference drawn by the trial Court did not flow from the evidence of PW4 which shows that the appellant’s defence of alibi was not investigated as required by law. ​It is therefore submitted for the appellant that it is not the duty of the accused person to prove his innocence but rather it is the prosecution’s duty to discredit him and to dislodge his evidence. It is further submitted that the evidence on record did not justify the trial Court’s conclusion that the appellant’s plea of alibi failed. The Court is referred to the case of Rex v.

Falayi (2009) 8 ACLR Vol. 8 pg 490 at 503 ratio 4, and the case of Madagwa v. The State (2009) 7 ACLR Vo. 7 pg. 303 at 352 ratio 2. Further referring us to the case of Adeoti & Ors. v. State (2009) 8 ACLR Vol. 8 pg. 231 at 306, Counsel urged the Court to interfere with the findings of the trial Court as at concerns the defence of alibi because it is perverse. That the learned trial Judge failed or neglected to draw the necessary inferences or shut his eyes to the very potent facts which could have tilted the imaginary scale of justice in favour of the appellant.

It is further submitted that before a trial Court can draw an inference of the guilt of an accused, it must be sure that there is no other co-existing circumstances which could weaken such inference. This, counsel points out was not done in this case. The Court is therefore urged to allow the appeal and to set aside the conviction of the appellant. For the respondent, it is submitted that the appellant’s complaint is against the obiter dictum in the judgment and not the ratio.

That the finding of the trial Court that the plea of alibi put up by the appellant was investigated and found unproved, and that the appellant was found to be at home and made calls to the 1st accused, made her criminis participes, and therefore very much in the bargain to murder the deceased.

This, counsel submits, is the trial Court’s reason for the decision reached by the trial Court that the appellant was guilty of murder. ​Respondent’s counsel admits that from the evidence of the witnesses, it is not in issue that the appellant is a sportswoman and trains at the Dan Anyiam Handball Stadium in Owerri, Imo State. That it is also evident that the appellant lives in the village at their Awo-Mbieri in Mbaitoh LGA, and also resides at No. 21, Njemanze Street, Owerri. However, counsel submits her indisposition on the date of the crime is not conclusive of her innocence.

It is further contended that from the evidence of PW1, PW4 and the IPO, the appellant was at home on the day of the incident.

The Court is referred to pages 111 – 121 of the record of appeal. Submits that the prosecution witnesses’ evidence was not destroyed under cross examination and is therefore credible, cogent and reliable, and the trial Court relied on it. Counsel therefore submits that the appellant did not only conspire to commit the offence but actually participated in its commission.

Counsel further submitted Section 7(a) – (d) of the Criminal Code cannot be over emphasized in the circumstances as the appellant aided and abetted other persons, particularly the 1st accused (her brother) as she was placed/stationed on a look out while the 1st accused executed the killing of the deceased. Counsel also referred to the evidence of PW1 whom in the said evidence, he claimed that the appellant stopped people from entering their compound to fetch water from their borehole a week before the offence was committed.

That the said action of the appellant was in furtherance of the common purpose, that is the murder of the deceased. ​In reply to the contention of the appellant, that there was improper evaluation of evidence and the cited authorities, the respondent’s counsel disagrees and submitted that the authorities cited are not applicable. Submits that the judgment of the trial Court is unimpeachable, and not perverse. That the power of the appellate Court to interfere with the findings of fact of the trial Court is not automatic and does not arise in all circumstances.

He relies on the case of Famoroti v. FRN (2016) All FWLR (Pt. 856) 366 at 397 – 398 paras F – A ratio 7; and the case of Edilcon (Nig.) Ltd. v. UBA (2017) All FWLR (Pt. 901) 581 at 617 to 618 paras G – B, ratio 6. It is however contended that the trial Court properly discharged his judicial duty and was therefore correct in the findings of facts based on the proper evaluation of evidence. That the finding of the trial Court is therefore not perverse.

In reply to the argument of the appellant’s counsel that the defence of alibi was available to her when the evidence of the witnesses is considered together, it is submitted for the respondent that none of the witnesses testified with certainty that the appellant was not part of them and did not participate in the commission of the offence. ​In sum, counsel urged the Court not to interfere with the findings of the trial Court and to dismiss the appeal and affirm the judgment of the trial Court.

In the reply brief, the appellant appears to reinforce his argument on the non-investigation of alibi even though the appellant discharged the evidential burden placed on her to give details of her whereabouts on the date and time the offence was committed. What however appears to me to be a new issue of law is the trial Court’s finding that the appellant was a sort of linkman between 1st accused and the others spying and relaying to them over the phone the position of things. The concern of appellant’s counsel is the source of the trial Court’s finding.

Submits that the finding is based on suspicion which cannot tantamount to guilt of the appellant. RESOLUTION On a calm consideration of the arguments proffered by both counsel, I am of the humble view that the following issue is best suited for the determination of the appeal: “Whether on the totality of the evidence before the Court, the trial Court was not in error in the appellant’s conviction for the offence with which she was charged.” The trial Court convicted the appellant because it was convinced that the charge was proved. This calls to question the burden of proof.

It is settled law that the standard of proof in criminal cases is proof beyond reasonable doubt while the burden rests on the prosecution and never shifts, unless in cases in which the statute provides otherwise. I rely on the following cases – Agugua v. The State (2017) LPELR – 42021 (SC), p. 38, paras E – F, Tobi v. The State (2019) LPELR – 46537 (SC), P. 24, paras C – D, Edun & Anor. v. FRN (2019) LPELR – 46047 (SC) p. 12.

It is also settled law that there are three (3) ways in which the guilt of an accused person may be proved:- (i) By eye witness account of the commission of the offence, (ii) By confessional statement of the accused person, (iii) By circumstantial evidence. I refer to the following cases on the issue – James Afolabi v. The State (2016) LPELR – 40300 (SC). Pp. 51 – 52, paras F – B, Demo Oseni v. The State (2012) LPELR – 7833 (SC) p. 41. Paras B – C, Darlington Eze v. FRN (2017) LPELR – 42097 (SC) p. 63, paras C – E.

It is not in doubt that there is no eye witness account that the appellant committed this offence. Equally not in doubt is that there is no confession to the offence by the appellant. Therefore, the prosecution’s case against the appellant was wholly founded on circumstantial evidence. The findings of the learned trial Judge in relation to the appellant who was the 5th accused person at the trial Court is contained at page 296 of the record of appeal. Hear him: “Over now to the 5th accused Chinyere Ade Ndukwu.

Her testimony was to the effect that on 4/11/2010, she was in Owerri doing her sporting activities and came back to her village around 7pm. While at home there was trouble in the compound and she called the 1st Accused person to find out where he was and told him to come back home. She denied the charge. This woman tried to raise the plea of alibi. She supplied the details of her whereabouts on that day to be. She was at the sports stadium and at Njewanze Street came back in the evening. She admitted making call to the 1st accused but for a different reason.

In one breadth she said it was to tell him to come home for his food. In another to tell him to come home that the deceased was nowhere to be found. The prosecution investigated this and found that on that day she was home to the village and made calls to the 1st accused. Based on this, it is only evident that that plea has failed. The only option now open to the Honourable Court is to hold that she was a sort of linkman between 1st accused and the others, spying and relaying to them over the phone, the position of things.

I hold therefore that Section 7 of the Criminal Code makes her criminis participes and therefore very much in the bargain to finish the deceased. She as equally found guilty as charged.” This Court has a duty to consider the correctness or otherwise of these findings against the background of the evidence available to the Court on record. I will come to this later in the course of this judgment. ​But it is instructive at this juncture to restate the ingredients which the prosecution must prove in order to sustain a valid conviction for the offence of murder.

The ingredients, as settled in law are: (i) That the deceased had died, (ii) That the death of the deceased had resulted from the act of the accused person, (iii) That the act which caused the death or grievous bodily harm was its probable consequences. See the following cases: Maiyaki v. The State (2008) 11 SCM 49 at 39 – 60, Afosi v. The State (2013) 12 SCM (Pt. 2) 28 at 41 paras. G – I. ​It is pertinent to note that the appellant was jointly tried with other accused persons.

Of those other accused persons, the 1st accused person (Uchenna Ndukwu) a brother of the appellant had made a confessional statement in which he incriminated the appellant as having assisted to facilitate the commission of the offence. He also incriminated the other accused persons. However, he subsequently retracted the aspect of his confessional statement in which he incriminated the other accused persons inclusive of the appellant. He claimed that while in detention the incriminating statement was made out of compulsion by the police.

In the subsequent, the 1st accused person stated that he alone murdered the deceased. He restated this while testifying in his defence. In relation to the 5th accused person (the appellant, he stated thus in his evidence in his defence: “I was not communicating with 5th accused as to know if the crime had been uncovered. 5th accused is a sports woman at Sports Council and lives at Owerri.

We had no quarrel in our family between us but the deceased and PW2, Edwin Ndukwu had problem.” (See pages 162 – 163 of the record of appeal) Further, the following was recorded at page 170 of the record of appeal on the questions put to the said 1st accused (as DW4) and his answer as it concerns the appellant: “Q: Put: 5th Accused was mounted as sentry and alert you in any possible intrusion?

Ans.: Not true she was not at home.” A careful reading of the record of appeal would reveal that the findings of the trial Court in which it finds the appellant guilty as “criminis participes” is based on the earlier incriminating statement of the 1st accused person, notwithstanding its subsequent retraction. ​However, in law, the statement, whether retracted or not did not bind the appellant because she did not adopt it or admit it as true.

See the following cases which lucidly established that when two or three persons are tried together, a confession by one of them which incriminates one or the others binds him alone, unless the confessional statement is made in the presence of the others and they decide to adopt it:- Tirimisiyu Adebayo v. The State (2014) 8 SCM 34 at 65 para. 6, The State v. James Gwangwan (2015) 9 SCM 253 at 271 paras. D – G.

See also Section 29 (4) of the Evidence Act, 2011 which provides: “Where more persons than one are charged jointly with an offence and confession made by one of such persons in the presence of one or more of the other persons so charged is given in evidence, the Court shall not take such statement into consideration as against any such other persons in whose presence it was made unless he adopted the said statement by words as conducted.” All these go to show that the prosecution could only succeed in proving the guilt of the appellant based on cogent and credible evidence other than reliance on the confessional statement made by one of the co-accused persons which incriminates one or the others. ​This statement of the law therefore renders the evidence of PW1 regarding the 1st accused person’s confession made to her in which she gave the damning incriminating evidence against the appellant as narrated to her by 1st accused person (Uchenna Ndukwu) worthless in the conviction of the appellant.

The evidence of PW1, apart from a narration of a confession made by one co-accused person against another which Section 29(4) of the Evidence Act, 2011 makes it inadmissible against the appellant, it was hearsay so long as she was narrating what she claimed the 1st accused person told her. It is of course settled law that hearsay evidence is not admissible to prove any fact – Buhari & Anor. v. Obasanjo & Ors. (2005) LPELR – 85 (SC) p. 209 paras. C – D, Kasa v. State (1994) LPELR – 1671 (SC), p. 18 para. A, Ukut v.

State (1995) LPELR – 3351 (SC) p. 29, paras C – F. ​I have in the course of the treatise of the issues thrown up for consideration held that there was neither direct eye witness account of the commission of the offence by appellant or a confessional statement that she committed the offence. However, it is agreed in law that there is a presumption of correctness in favour of the judgment of a Court. Unless and until that presumption is rebutted and the judgment is set aside, it subsists and must be obeyed – Babatunde & Ors. v. Olatunji & Anor (2000) LPELR – 697 (SC), p. 15 paras. A – F, Ogene v.

Ogene & Anor. (2007) LPELR – 8156 (CA) pp. 16 – 17 paras C – E, Dahiru & Anor v. Kamale (2004) LPELR 11135 (CA), pp. 50 – 57, paras. E – A.

Therefore, it follows that a judgment that is right cannot be set aside because it is founded on a wrong reason. In other words, an appellate Court is basically concerned with the correctness of the decision of the Court from which the appeal emanated, not the reasons given for the decision. See the case of Dolor v. The State (2020) LPELR – 52445 (CA), p. 10 paras. A – B, Folakemi Osin v. FRN (2017) LPELR – 46219 (CA), p. 19, paras A – C, Master Holding (Nig.) Ltd. & Anor v. Emeka Okefiena (2010) LPELR – 8637 (CA), pp. 28 – 29, paras.

B – A. ​I consider it imperative to consider the availability of circumstantial evidence on the standard required by law that can serve as a tripod on which the conviction of the appellant can be sustained. The Nigeria Criminal jurisprudence is replete with several definitions of circumstantial evidence, all of which lead to one general or common effect. In the case of Musa Mamman v.

The State (2015) LPELR – 255963 (CA), circumstantial evidence was defined as: “Now, circumstantial evidence is evidence of surrounding circumstances which by undersigned coincidence is capable of proving a proposition with high level of certainty and the accuracy and/or precision of mathematics. It is not a derogation of evidence to say that it is circumstantial. However, to be sufficient to ground a conviction in a criminal trial, circumstantial evidence must be complete and unequivocal.

It must be compelling and must lead to the irresistible conclusion that the defendant and no one else did the deed and as such, it is only the defendant and no one else, who should be criminally culpable for the offence alleged or charged. The facts must be incompatible with the innocence or non-culpability of the defendant and incapable of explanation by any other reasonable hypothesis or consideration than that of his guilt – State Vs Njoku (2010) 1 NWLR (Pt.1175) 243 and Oladotun Vs State (2010) 15 NWLR (Pt.1217) 490.

It is trite law that before a defendant can be convicted for culpable homicide or murder on circumstantial evidence, the fact of death should be proved by such circumstances as render the commission of the crime certain and leave no ground for reasonable doubt. The circumstantial evidence should be cogent and compelling as to convince the Court that no rational hypothesis other than murder can the facts be accounted for. A conviction for culpable homicide or murder on circumstantial evidence must point to the guilt of a defendant with the accuracy of mathematics.

A Court cannot convict on circumstantial evidence, especially in a case of murder or culpable homicide where such evidence points in more than one direction Osuoha Vs State (2010) 16 NWLR (Pt.1219) 364 and Maigari Vs State (2010) 16 NWLR (Pt.1220) 439. In other words, for circumstantial evidence to sustain conviction, the following conditions must be met: (i) the evidence must irresistibly and unequivocally lead to the guilt of the defendant; (ii) no other reasonable inference could be drawn from it; and (iii) there must be no co-existing circumstances which could weaken the inference.

All the three conditions must exist in the adduced evidence to ground and sustain the conviction of a defendant- Shehu Vs State (2010) 8 NWLR (Pt.1195) 112.” Per ABIRU, JCA (Pp. 27-29, paras. C-B) See also the case of Nwielo v. The State (2021) LPELR – 56302 (CA) p. 19 – 20, paras. E – A. ​In the judgment of the trial Court, the learned trial Judge found that the appellant’s defence of alibi was investigated by the prosecution which found out that the appellant was at home in the village and made phone calls to the 1st accused.

Thus he found that the plea of alibi failed, and therefore concluded that the appellant was a sort of linkman between 1st accused and the others spying and relaying to them over the phone the position of things, and constituted herself a criminis participes to the crime of murder. This is where I think the trial Court resorted to circumstantial evidence in the absence of direct proof that the phone calls between the 1st accused person and the appellant centered on the role attributed to the appellant in the whole saga.

This issue was considered along with the trial Court’s acceptance of the prosecution’s evidence that the appellant’s defence of alibi was investigated and found to be false. Before I conclude on circumstantial evidence and whether the Court could rightly convict the appellant on circumstantial evidence, it is pertinent to consider the claim of the prosecution which the trial Court accepted that the defence of alibi set up by the appellant was found to be false. The expression “alibi” simply means elsewhere.

By the defence, the accused claims or says that he was in a place other than the scene of crime – See the case of Ochemaje v. The State (2008) LPELR – 2198 (SC). See also the following:- Nwabueze & Ors. v. State (1988) LPELR – 2080 (SC) p. 15, paras. B – D, Eyisi & Ors. v. State (2000) LPELR – 1186 (SC), p. 67 paras C – D. ​Once the defence of alibi has been raised timeously and with sufficient particulars, it is the duty of the police to investigate it in order to verify the claim. Failure to do so is fatal to the prosecution’s case. See the case of Opeyemi v.

The State (2019) LPELR – 48764 (SC), pp. 26 – 27 paras. F – A. See also Onuchukwu & Ors. v. State (1998) LPELR – 2701 (SC), p. 19, paras. A – B, Dogo & Ors. v. The State (2001) LPELR – 956 (SC), p. 32, paras B – F. The prosecution in this case claims that the defence of alibi set up by the appellant was investigated and she was found to be at home in the village on the 4/11/10, the date of the murder. The appellant did not claim that she was not at all in the village on 4/11/10. No!

What she stated was that she was in the village on 4/11/10 but between 7am – 8pm she went for training in Owerri, being a sports woman, a fact admitted by the prosecution and other witnesses.

She gave details of her whereabouts at Owerri up to the time she went back home at about 8pm in the evening. ​To properly investigate these claims and disprove it, the police were supposed to have gone to all the places she named and having investigated, and if found to be false, present those that were interviewed as prosecution witnesses to testify before the Court as to the fact that on the material date the appellant claimed that she was with them, she was not, and to be properly cross-examined by counsel to the appellant.

Here, however, all that the police told the Court is that he investigated the alibi and found that the appellant was at home in the village on the material date. The police did not tell the Court who verified that claim to him and at where and at what time. The ipse dixit of the police that they investigated the alibi and found it to be false is not only insufficient, but unreliable. In any view, the evidence of the police on the appellant’s alibi has no probative value. The learned trial Judge was therefore clearly in palpable error to rely on it.

It has the effect of the alibi set up by the appellant having not been investigated. In the case of Monday Odu & Anor. v. The State (2001) LPELR – 2231 (SC), p. 7 paras E – F, it was held that there are occasions on which failure to check an alibi may cast doubt on the reliability of the case of the prosecution; yet where there is positive evidence which cancels the alibi, the failure to investigate the alibi would not be fatal to conviction. In the instant appeal, there is no positive evidence which cancels the alibi.

The prosecution’s case is substantially built on the evidence of PW1 which implicated the appellant. Like I earlier stated elsewhere in this judgment, apart from the confessional statement of 1st accused having been retracted, in law it only binds him. See Section 29 (4) of the Evidence Act, 2011. The prosecution’s case is also founded on the evidence of PW1 which, apart from being hearsay, is based on the confession she said were made by the said 1st accused person to her in which he incriminated the appellant.

The 1st accused, as noted, and as can be verified from the record retracted the confession and claimed that the police forced him to make those statements. He told the Court that he murdered the deceased all by himself. The prosecution did not believe him. The trial Court did not too because of the glasses of wine they found in the living room of the deceased. Suspicion it is, indeed very strong suspicion, but there must be cogent and reliable evidence to back up the suspicion. No evidence at all, not even circumstantial evidence on the standard required by law for the conviction.

There was without doubt, no legally acceptable evidence for the finding of the Court that the only option open to it is to hold that the appellant was a sort of linkman between the 1st accused person and the others, spying to them over the phone and reporting things. With no iota of legally admissible evidence to prop up the conviction of the appellant except the misconceived confession of the 1st accused and evidence of PW1 and PW4, the conviction of the appellant is perverse and cannot be allowed to stand. Therefore, I find this appeal loaded with merit and I hereby allow it.

In the result, the judgment of the trial Court delivered in Suit No. HOW/51C/2011 on 18th February, 2013 is hereby set aside as against the appellant in this appeal. The conviction and sentence imposed on the appellant is hereby set aside. Consequently, she is hereby discharged and acquitted and is ordered to be released from the correctional facility forthwith.

IBRAHIM WAKILI JAURO, J.C.A.: I have read before now the draft of the Judgment delivered by my Learned brother James G. Abundaga, JCA. I must say his Lordship has extensively dealt with this appeal such that I have nothing to add. I also allow the appeal it is meritorious. I abide by the orders made by his Lordship. ADEMOLA

SAMUEL BOLA, J.C.A.: The judgment just delivered by my learned brother, JAMES GAMBO ABUNDAGA, JCA, was read in draft by me. I am in agreement with the reasoning and conclusion. I have nothing to add. In effect, I abide by the conclusion and orders made.

Judgment

DANLAMI ZAMA SENCHI, J.C.A. (Delivering the Leading Judgment) : This appeal is against the ruling of the Federal High Court, Abuja in Charge Nor FHC/ABJ/CR/258/2019 delivered on the 23rd day of November, 2020 by O. E. ABANG, J. Pursuant to a Summons to Admit to Bail dated and filed on 25th October, 2019 on behalf of the 1st Defendant in Charge No. FHC/ABJ/CR/258/2019 (Abdulrasheed Abdullahi Maina), the lower Court admitted him to bail via a ruling delivered on 26th November, 2019. (See pages 296-322 of the Record of Appeal).

The bail conditions were varied via the Ruling of the lower Court delivered on 28th January, 2020 upon an Application filed on behalf of the aforementioned 1st Defendant on 6th December, 2019. On 29th April, 2020, the 1st Defendant’s Application for further variation of the bail conditions was dismissed for lacking in merit. The trial Court on 29th June, 2020 further varied its order made on the Bail Conditions on 28th June, 2020.

The 1st Defendant was granted bail and he was released from custody on 24th July, 2020, after satisfying the Bail conditions. ​The Appellant was the surety of the 1st Defendant and he filed an 11 paragraphs Affidavit of Means on 5th May, 2020, in which he averred inter alia that the property used in fulfilment of the bail term belongs to him, he is ready to produce the Defendant in Court to stand his trial and if the Defendant jumps bail, he shall forfeit the bond to the tune of N500,000,000.00 to the Federal Government of Nigeria.

The 1st Defendant failed to appear before the trial Court on several adjournments including: 29th September, 2020; 30th September, 2020; 2nd October, 2020; 19th October, 2020 and 18th November, 2020, without reasonable explanation.

On 18th November, 2020, pursuant to the Respondent’s Application, the bail of the 1st Defendant was revoked and a Bench Warrant issued against him; and pursuant to the prayer of the Appellant, the lower Court granted an adjournment to 23rd November, 2020, to enable the Appellant engage a Counsel to show cause why he should not be remanded in prison as a result of the 1st Defendant jumping bail.

The Appellant’s counsel then wrote a letter dated 19/11/2020 addressed to the DCR the trial Court requesting for certain processes (documents) to enable him look at them and prepare for his defence behalf the surety. (see pages 194 – 195 of the Record of Appeal Delivering his Bench Ruling, the trial Court held as follows:- “Therefore, under Section 179(1) of ACJA, the prosecution’s application deserves to succeed and it is accordingly granted as prayed.

I hereby make the following orders – (1) Surety Senator Ali Ndume shall be remanded in correctional centre Kuje pending compliance or fulfilment of any of the following conditions- (a) That he forfeits the Bail Bond of 500 million Naira to the Federal Government of Nigeria. That is he pays the sum of 500 million Naira into Federation account and evidence of payment placed before the Court. He shall then be released from custody.

Or (b) That the complainant in this matter the Federal Republic of Nigeria shall sell or dispose of the property situate at plot No. 158 Cadastral Zone A04 Asokoro District, Abuja covered by C of O, No. 17-d743z-6E31r-e6dzu-10, File No. KN11297 dated 29/8/2005 Lawal Ahmed having donated irrevocable power of Attorney to Senator Ali Ndume as the owner of the property being the property that was pledged as security for the bail bond, full sum of 500 million recovered and paid into Federation account and evidence of payment placed before the Court then the surety shall be released from custody.

Or The 1st Defendant whose bail has been revoked that is on Bench Warrant is produced in Court, then the surety shall be released.” (see pages 420-422 of the Record of Appeal) Dissatisfied with the ruling of the lower Court, the Appellant filed a Notice of Appeal dated the 24th day of November, 2020.

The Grounds of Appeal contained in the Appellant’s Notice of Appeal are hereby reproduced (without their particulars) as follows: GROUND ONE The learned trial Judge erred in law when he refused to grant an adjournment to enable the Appellant’s Counsel procure from the Court certified true copies of Court documents necessary to defend the forfeiture proceedings thereby denying the Appellant the right to fair hearing.

GROUND TWO The learned trial Judge erred in law when upon refusing the application for adjournment failed to call upon the Appellant in line with Section 179 of the Administration of Criminal Justice Act, 2015 to show cause why the bond should not be forfeited before giving his ruling forfeiting the bond thereby occasioning a miscarriage of justice against the Appellant. GROUND THREE The learned trial Judge erred in law when he did not give the Appellant adequate time and opportunity to defend himself before forfeiting the bond and ordering Appellant to be remanded in prison custody.

GROUND FOUR The learned trial Judge erred in law when he forfeited the bail bond when same has not been proved to the satisfaction of the Court by the prosecution to be forfeited as required by Section 179 (1) of the Administration of Criminal Justice Act, 2015. GROUND FIVE The learned trial Judge erred in law when on 23/11/2020 he forfeited the Appellant’s bond and sent him to prison indefinitely without first informing the Appellant exactly of the breach complained of and without giving the Appellant an opportunity to give evidence, call witnesses or give explanation from the dock: FRN V.

Maishanu (2019)7 NWLR (Pt. 1671) 203 @ 223. GROUND SIX The learned trial Judge erred in law when he failed to countenance the application of the Appellant’s Counsel in the file of the Court requesting for certified true copies of relevant Court processes to enable him adequately defend the forfeiture proceedings thereby occasioning a miscarriage of justice against the Appellant.

GROUND SEVEN The learned trial Judge erred in law when he ordered the Appellant to be sent to Kuje prisons when the Appellant was not on trial for any criminal offence but only a surety whose bond is securitized by a landed property in the sum of N500 million. GROUND EIGHT The learned trial Judge erred in law when he ordered in the alternative that the Appellant (surety) should not be released from prison custody until the N500 million is paid or the Respondent sells the property (security) and recovers the N500 million into the coffers of the Federal Government of Nigeria.

GROUND NINE The trial Court erred in law when it proceeded on the application for forfeiture of bond when all other necessary steps regarding the 1st Defendant’s jumping of bail has not been exhausted. GROUND TEN The learned trial Judge erred in law when he held that the surety’s application for record of proceedings should have been made by a motion and not by a letter.

GROUND ELEVEN The learned trial Judge erred in law when he ordered the remand of the Appellant in prison custody indefinitely in contravention of the provisions of the Administration of Criminal Justice Act, 2015 thereby acting outside his jurisdiction. GROUND TWELVE The judgment is unreasonable and unwarranted and should be set aside. The Record of Appeal was transmitted to this Court on 03/12/2020. The Appellant’s Brief of Argument was dated and filed on 11th December, 2020. The Respondent’s Brief of Argument was filed on 4th March, 2021 and deemed properly filed on 14th March, 2022.

ISSUES FOR DETERMINATION In the Appellant’s Brief of Argument which was settled by Marcelluous Eguvwe Oru Esq., the following issues for determination were raised: (1) Whether in the circumstances of this case, the learned trial Judge was right when he refused to grant the adjournment sought by the Appellant’s Counsel on 23rd November, 2020. (Distilled from Ground of Appeal No. 1) (2) Was the Appellant on 23/11/2020 given fair hearing by the trial Court before his recognizance bond was forfeited and further ordered to be remanded in prison custody? (Distilled from Grounds of Appeal numbers 2, 3, 5 and 6). (3) Whether or not the Respondent proved to the satisfaction of the trial Court why the recognizance bond should be forfeited. (Distilled from Ground of Appeal No. 4) (4) Whether the learned trial Judge was right and acted competently in the way and manner he forfeited the recognizance bond of the Appellant and sentenced him to be remanded in prison custody. (Distilled from Grounds of Appeal numbers 7, 8, 9 and 11). (5) Whether the learned trial judge was right when he failed to take cognizance of the Appellant’s Counsel’s letter of 19th November which was already before the Court on the ground that it is a “mere administrative letter.” (Distilled from Ground of Appeal No. 10) (6) Whether in the circumstances of this case the decision of the trial was reasonable, proper and warranted (Distilled from Grounds of Appeal number 12) In the Respondent’s Brief of Argument which was settled by Faruk Abdullah Esq., a sole Issue for Determination was raised thus: Whether the lower Court was not right to hold that the Appellant had breached the terms of his recognizance?

ARGUMENTS OF COUNSEL APPELLANT’S SUBMISSIONS APPELLANT’S ISSUE ONE At paragraphs 4.1-4.16 of the Appellant’s Brief of Argument, learned Counsel to the Appellant submitted to the effect that 23/11/2020 was the first time the Appellant’s Counsel appeared before the trial Court in the matter and the failure of the trial Court to oblige him with the documents requested for and further failure to grant an adjournment to enable Appellant’s Counsel obtain the necessary documents to defend the forfeiture proceedings amounted to denial of fair hearing and wrongful use of discretion by the trial Court.

He relied on the cases of ASHIRU V. AYOADE (2005) LPELR-12881 (CA)1 AT 18-11, GUARANTY TRUST BANK PLC V. CHUKWEMMEZIE PETER EKEMEZIE (2011) LPELR-11933 (CA)1 AT 18-20, MAINS VENTURES LTD V. PETROPLAST IND. LTD (2000)4 NWLR (PT. 651) 151 AT 165, RASAKISALU V. MADAM TOWUROEGEIBON (1994)6 NWLR (PT. 348) 23 AT 45. Counsel submitted further that it is not the number of adjournments that matters but the reason for the adjournment and once the reason is genuine, convincing and will aid determining the matter on the merit as in this case, such an adjournment ought to be granted.

He submitted further that the trial Judge in refusing the adjournment acted on entirely wrong principle of law and failed to take all the circumstances of this case into consideration, which has manifestly worked injustice against the Appellant. He urged this Court to allow this issue.

APPELLANT’S ISSUE TWO At paragraphs 5.2-5.8 of the Appellant’s Brief of Argument, Counsel submitted to the effect that the law is trite that where a trial Judge refuses an application for adjournment of a case set down for hearing, he must immediately invite the party or his Counsel to proceed to trial and rule on the response to that invitation before proceeding to decide the case or make pronouncements/orders/decisions affecting the rights of the parties and failure to do so is fatal to any judgment or order made thereafter.

He relied on the cases of REGISTERED TRUSTEES OF CHRIST FAITH MISSION & ORS V. REVD. DANIEL EGBEFAH AKUGHA (2008) LPELR-4894 (CA) 1 AT 16-19, ECOBANK V. BUKAS KASMAL INT’L LTD & ORS (2017) LPELR-43544 (CA) 1 AT 51-63, GUARANTY TRUST BANK V. EKEMEZIE (SUPRA) 1 AT 15-16, ERINFOLAMI V. SOCIETE GENERALE BANK (NIG) LTD (2008)7 NWLR (PT. 1086) 306 AT 334 B-E, 340 G-H; IDEMUDIABAMAWO V. ISAAC LAYINKA CARRICK (1995) 6 NWLR 356, etc.

He submitted further that there is nowhere in the proceedings of 23/11/2020 where the learned trial Judge after refusing the Appellant’s Counsel’s application for adjournment, called on the Appellant or his Counsel to enter their defence before the bond was forfeited and Appellant remanded in prison custody. Counsel submitted that any judgment/decision such as the one on appeal which was given without due compliance and which has breached fundamental right of fair hearing is a nullity and is capable of being set aside by the appellate Court. He relied on the cases of BAMGBOYE V.

UNIVERSITY OF ILORIN (1999)10 NWLR (PT. 622) 290 and OTAPO V. SUMMONU (1987)2 NVVLR (PT. 58) 587. Counsel submitted that He urged this Court to allow this issue.

APPELLANT’S ISSUE THREE At paragraphs 6.1-6.10 of the Appellant’s Brief of Argument, learned Counsel to the Appellant submitted to the effect that in proving to the satisfaction of the Court why the recognizance bond should be forfeited by the Surety/Appellant, the Prosecution/Respondent must exhibit or produce the recognizance bond sought to be forfeited, and it must be exhibited before the Court irrespective of the fact that it is the same Court that granted the bail. He submitted further that even after the Recognizance is produced and proved, the Surety/Appellant has a right to be heard.

Counsel relied on Section 179(1) of the Administration of Criminal Justice Act, 2015 and the cases of FRN V. MAISHANU (2019) 7 NWLR (PT. 1671) 203 @ 223, AHAMADU TEA V. COMMISSIONER OF POLICE (1963) NNLR 77, JOHN & ANOR V. COMMISSIONER OF POLICE (2001)2 ACLR 495 @ 500-501, ABUDU, RE KOTUN (1961) LLR 83. He submitted further that the Prosecution/Respondent and the Court failed to follow any of the necessary steps to forfeit the Appellant’s bond, and this amounts to a miscarriage of justice against the Appellant. He urged this Court to allow this issue.

APPELLANT’S ISSUE FOUR At paragraphs 7.1-7.15 of the Appellant’s Brief of Argument, Counsel submitted to the effect that failure to produce the 1st Defendant is an offence unknown to law, thus, the trial Court was wrong to have ordered the remand of the Appellant in prison without proper forfeiture procedure.

He submitted further that for all intents and purposes, the Appellant was not facing any criminal proceedings before the trial Court and Section 179 of the Administration of Criminal Justice Act, 2015 does not empower the learned trial Judge to start by remanding the Appellant in prison custody, thus, the trial Judge erred when he ordered that for a start, the Appellant should be remanded in prison custody until he pays the N500 million or until the property is sold and money paid into the federation account.

Counsel submitted further that the bond was securitized with documents of a landed property worth over N500 million and the original documents of title are domiciled with the trial Court, and it is only when the penalty is not paid and cannot be recovered that the Surety shall be liable to imprisonment for a term not exceeding six months. He relied on Section 179 of the ACJA, 2015 and the case of CHRISTOPHER EKWUAZI V. DPP & 2 ORS (2001)2 ACLR 488 AT 489.

APPELLANT’S ISSUE FIVE At paragraphs 8.1-8.7 of the Appellant’s Brief of Argument, Counsel submitted to the effect that the Appellant was not a party to the criminal proceedings being tried by the trial Court and as a surety, he had no need for a Counsel till the 1st Defendant jumped bail and there was an application for forfeiture of bond made by the Respondent; thus, the only lawful way for the Surety/Appellant’s Counsel to know about what happened in the proceedings was to apply for certified true copies of the relevant Court proceedings via a letter duly filed and paid for, as it would have been inappropriate to have applied for the said documents via a Motion on Notice.

Counsel relied on the cases of TONY NWOYE V. MR. ANEKECHRISCATO IKECHUKWU & ORS (2011) LPELR-9195 (CA)1 AT 20-22, MRS GLORIA ANULIKA ANAEKWE V. MR KINGSELY IRUBA & ORS (2011) LPELR-9198 (CA)1 AT 18-30. Counsel submitted further that the learned trial Judge erred when he held that the letter filed by the Appellant’s Counsel was a mere administrative letter and he was not bound by it. He relied on the case of THE REGISTERED TRUSTEES OF THE PRESBYTERIAN CHURCH OF NIGERIA V. JOHN ASUQUO ETIM (2017)13 NWLR (PT. 1581)1 AT 41.

Counsel contended that the failure of the trial Court to approve or disapprove of the letter or even consider same in the application for adjournment by the Appellant’s Counsel amounted to denial of fair hearing which has occasioned a miscarriage of justice against the Appellant. Referring to the case of AFOLABI V. ADEKUNLE (1983)2 SCNLLR 41, he contended that substantial justice would have been done if the letter were considered rather than technicality. Counsel urged this Court to allow this issue.

APPELLANT’S ISSUE SIX At paragraphs 9.1-9.3 of the Appellant’s Brief of Argument, Counsel adopted all preceding submissions for issues 1-5 and submitted further that the decision forfeiting the bond and remanding the Appellant in prison custody was unwarranted, unreasonable, hasty, premature and a gross denial of fair hearing which rendered same a nullity. He urged this Court to allow this issue. In conclusion of his Brief of Argument, learned Counsel to the Appellant urged this Court to allow the appeal and set aside the decisions and Orders of the learned trial Judge.

RESPONDENT’S SUBMISSIONS At paragraphs 4.1.1-4.1.5 of the Respondent’s Brief of Argument, learned Counsel to the Respondent submitted on his sole Issue for Determination to the effect that the lower Court gave the Appellant fair hearing and the Appellant was fully in charge of his case. He submitted further to the effect that the lower Court acted within the confines of the provision of Section 183 of ACJA, 2015 to order the forfeiture of the recognizance entered by the Appellant and the order that he be remanded. Counsel submitted further that the case of FRN V.

MAISHANU referred to by the Appellant’s Counsel does not apply to the instant appeal, and the said case was decided based on the provisions of the Criminal Procedure Code and the instant case is governed by the Administration of Criminal Justice Act, 2015 and not the Criminal Procedure Code as erroneously canvassed by the Appellant’s Counsel. He submitted further that in the unlikely event that FRN V. MAISHANU is relevant, the facts are not on all fours with the instant case. Counsel urged this Court to resolve this Issue for Determination in favour of the Respondent and dismiss the appeal.

In conclusion of his Brief of Argument, learned Counsel to the Respondent urged this Court to dismiss this appeal with substantial cost in favour of the Respondent.

RESOLUTION OF ISSUES This appeal shall be determined on the six (b) issues submitted for determination by the Appellant’s counsel and the Respondent’s sole issue would be considered thereunder. ISSUES 1, 2 and 5 shall be considered and determined together whole issues 3 and 4 shall be determine together as well and finally issue six.

ISSUES 1, 2, 3 and 4, 5 and 6 At paragraphs 4.1 – 4.11 of the Appellants Brief of Argument learned senior counsel submits to the effect that to grant or not to grant an application for adjournment is entirely at the discretion of the Court depending on the circumstances of a particular case.

He submits that on the 18/11/2020, the Respondent orally made three (3) applications before the trial Court and he refers to pages 242-249 of the Record of Appeal wherein the first two prayers or reliefs of the oral application was granted and in respect of the third prayer that bothers on forfeiture of the bail bond of the Appellant, the Appellant at pages 252 lines 8-14 of the Record of Appeal requested for relevant application to be served on him and that an opportunity be given to him to engage the services of a lawyer to handle the forfeiture proceedings.

The trial Court granted the application and adjourned the matter to the following date, that is, the 19/11/2020. On 19/11/2020, the appellant’s counsel appears in Court and wrote a letter to the Deputy Chief Registrar of the trial Court dated same 19/11/2020 requesting for certain processes of the Court to enable the Appellant’s counsel prepare the defence of the Appellant in the forfeiture proceedings.

According to learned counsel for the Appellant as of close of work on Friday the 20/11/2020, the letter of the Appellant’s counsel was before the learned trial Judge awaiting his approval for the Registry of the Court to release the documents requested. On 23/11/2020, when the matter came up for the forfeiture proceedings, Appellant’s learned counsel drew the attention of the learned trial Judge to the letter of 19/11/2020 requesting for the documents for the defence of the Appellant but the learned trial Judge proceeded to deliver its Bench ruling in respect of the forfeiture bond.

The Respondent’s learned counsel on the other hand, at pages 4.1.1-4.1.4 of the Respondent’s Brief of Argument submits to the effect that the lower Court granted the Appellant opportunity to be heard and he relies on the proceedings of the Court on 18/11/2020 and 19/11/2020. Be it as it may, the question that may arise in the circumstances of this case is whether the trial Court afforded the Appellant the opportunity to prepare and defend himself in the forfeiture proceedings?

I have perused the proceedings of 18/11/2020 contained at pages 242 – 260 of the Record of Appeal especially the submission of the Appellant as follows:- “My Lord, now the prosecutor has put in an application that affect me. I want to appeal that those part that affect me be served on me so that I can brief my lawyer to stand for me in this Court.

That is all I can say.” See page 252 lines 8 – 14 of the Record of Appeal) Then the trial Court in its Bench Ruling held thus:- “This matter is adjourned to 23/11/2020 at the instance of the surety for hearing for him to show cause why he should not be remanded in prison or forfeit the bail bond of N500,000,000, that he agreed to forfeit in paragraph 9 of his affidavit of 5/05/2020.” (See page 260 of the Record of Appeal).

Pursuant to the Bench ruling granting an adjournment from the 18/11/2020 to 23/11/2020, the Appellant briefed his lawyer, M. E Oru Esq., to defend him in the forfeiture proceedings. The Appellant’s counsel then caused a letter to be written to the Deputy Chief Registrar of the trial Court dated 19/11/2020. The letter at paragraphs 2-5 states:- “We have been briefed by our client that he acted as surety to the 1st Defendant in the above case who has now jumped bail resulting in the prosecution applying for the forfeiture of the bond.

We have not been in the matter since inception and thus not in a good position to handle the matter as we are not aware of all that has transpired in Court relating to the bail, bond and its forfeiture and matters arising therefrom. It is in the light of the above that we humbly apply for certified true copies of the under listed documents. i. bail bond, ii. recognizance, iii. record of proceedings relating to production of the 1st Defendant, revocation of the 1st Defendant’s bail and the forfeiture of the bond and revocation of the bail, iv. affidavit deposed to by our client (surety),

v. warrant of arrest of the 1st Defendant,

vi. copy of the landed property used as security for the bail, and vii. all other documents will assist us in adequately preparing the case of our client (the surety) and to effectively and effectually handle same.” (see pages 194 – 195 of the Record of Appeal) The trial Court did not grant the request of the Appellant vide his counsel’s letter dated 19/11/2020 or an adjournment and by its Bench ruling of 23/11/2020, the trial Judge held as follows:- “A mere letter or correspondence addressed to DCR of the Court that ought not to have been placed before the Court by the Court’s Registrar that did not act in good faith is not related to any provisions of ACJA.

In fact there is no provision in ACJA that supports the letter. Therefore under Section 179(1) of the ACJA, the prosecution’s application deserves to succeed and it is accordingly granted as prayed. I hereby make the following orders:- (9) The surety Senator Ali Ndume shall be remanded in correctional Centre Kuje pending compliance or fulfillment of any of the following conditions:- (a) That he forfeits the Bail Bond of N500,000,000.00 to the Federal Government of Nigeria. That is, he pays the sum of N500,000,000.00 into Federation account and evidence of payment placed before the Court.

He shall then be released from custody. Or (b) That the complainant in this matter the Federal Republic of Nigeria shall sell or dispose of the property situates at plot No. 158 Cadastral Zone A04 Asokoro District, Abuja covered by C of O No. 17d743z-6E31rebdzu-10, file No.

KN 11297 dated 29/08/2005 Lawan Ahmed having donated irrevocable power of Attorney to Senator Ali Ndume as the owner of the property being the property that was pledged as security for the bail bond, full sum of N500,000,000.00 recovered and paid into Federal account and evidence of payment placed before the Court then the surety shall be released from custody: Or The 1st Defendant whose bail has been revoked that is on Bench warrant is produced in Court, then the surety shall be released.” ​ Now as to the issue of whether to grant or not to grant an adjournment it is trite law that all Courts in Nigeria have unfettered discretionary power to adjourn any proceedings pending before them in order to do justice to the suit.

The guiding principle is that the discretion must be exercised at all times judicially and judiciously on the materials placed before the Court and the peculiar circumstances of the particular case. See ASO MOTEL KADUNA LTD V MRS DAYO DEYEMO, (2006) LPELR-1159b (CA). And to succeed on appeal for refusal to grant an adjournment it must be shown that the Court exercised its discretion wrongly.

The Supreme Court of Nigeria in the case of MOBIL OIL (NIGERIA) LIMITED V NABSONS LIMITED (1995) LPELR 1885 in considering the instance when Court can or should grant an application for adjournment held as follows:- “Where there is a change of counsel during trial and the new counsel applies for a short adjournment to enable him prepare and be fully briefed by his client It will amount to a judicious exercise of discretion if the Courts grants the application.

Refusal to adjourn, in such a situation may amount to taking away the right of a party to have a counsel of his choice.” It must be noted and it is the law that in the Court exercising its discretion to grant an adjournment, the Court must bear in mind the requirement that justice should be done to both parties and that the adjournment is in the interest of Justice and that the hearing should not be unduly delayed.

An adjournment should be granted if the refusal is not likely to defeat the right of a party or be an injustice to one or the other, unless there is a good or sufficient cause for the refusal. See the cases of John Asuquo Etim v The Registered Trustees of the Presbyterian Church, (2003) LPELR-7254(CA), YISI (NIG) LTD V TRADE BANK PLC (1999)1 NWLR (pt 588)646. In this case, this Court held that where a lower Court refused the application of a counsel for an adjournment, that such a refusal amounted to a denial of fair hearing and an injudicious exercise of judicial power.

Now let us situate the facts of the instant case to issues 1, 2 and 5 culled from Ground 1, 2, 3, 5, 6 and 10 of the Grounds of Appeal. The facts on record in this appeal reveal that the Defendant standing trial in the criminal trial is Abdulrasheed Abdullahi Maina while the surety is Senator Mohammed Ali Ndume.

By the records in this appeal especially the proceedings of 18th November, 2020, the prosecution desirous of having a speedy criminal trial, made some vital applications orally before the trial Court and the trial Court in its Bench Ruling held:- “The 1st Defendant cannot hold the Court to ransom. See Section 184 of ACJA. The Bail of the 1st Defendant earlier granted on 26/11/2019, varied on 28/1/2020. 29/6/2020 is herby revoked. I so hold The Bench warrant is hereby ordered for the arrest of the Defendant anywhere he may be found and brought before this Court.

The complainant in this matter that is the Federal Republic of Nigeria shall effect the arrest of the 1st Defendant anywhere he may be found and brought before this Court without delay. On the issue of the trial in absentia, there is no objection, it is hereby ordered that trial will continue in the absence of the 1st Defendant.

See Section 353 (4) ACJA.” By the Bench ruling of the trial Court, criminal proceeding or trial of the Defendant will proceed in line with Section 352 (4) which provides:- “Where the Court, in exercise of its discretion, has granted bail to the Defendant and the Defendant, in disregard for the Court Orders fails to surrender to the order of Court or fails to attend Court without reasonable explanation, the Court shall continue with the trial in his absence and convict him unless the Court sees reason otherwise, provided the proceedings in the absence of the Defendant shall take place after two adjournment or as the Court may deem fit.” Thus, by the Bench ruling of the trial Court and the evocation of Section 352 (4) of the ACJA, 2015, the trial Court has taken steps to avoid undue delay and at that stage, trial of the Defendant, Abdulrasheed Abdullahi Maina ought to have proceeded as requested by the Federal Republic of Nigeria through the Prosecution.

However, the trial Court jettisoned its order of trial of the Defendant in absentia and proceeded to go after the surety to the Defendant, Senator Mohammed Ali Ndume.

And indeed, from the record i.e the proceedings of 18/11/2020, the learned prosecuting counsel (at page 252 lines 15 -19 and 253 lines 1 – 8 of the Record of Appeal) submitted thus:- “although the matter was adjourned from 19/10/2020 till today 18/11/2020 while is a period of one month and surety when coming to Court this moving he knew that he has not found the 1st Defendant, he should have made arrangement for legal representation.

However though he is not a Defendant, in the overall interest of justice, I shall reluctantly concede only to the extent it relates to his own issue.” By the above submission of the learned prosecution, the attention of the trial Court was drawn to the fact that the Appellant is not a Defendant in the criminal trial and in the interest of justice, the prosecution conceded that the Appellant be grant an adjournment to secure services of a counsel of his own choice.

The trial Court then adjourned the case to 23/11/2020 not for the purpose of criminal trial of the Defendant but in respect of the forfeiture proceedings against the Appellant. The Appellant secures the service of his counsel and the counsel wrote a letter dated 19/11/2020 requesting for certain documents to prepare the Appellant’s defence in respect of the forfeiture proceedings. Records in this appeal show that the attention of the trial Court was drawn to the letter of 19/11/2020 by the Appellant’s counsel.

However, there is no evidence on record to show that the application vide letter dated 19/11/2020 of the Appellant was honoured or granted the trial Court. Secondly, from records in this appeal, the Appellant’s counsel who was appearing in Court on 23/11/2020 for the first time was denied an adjournment to prepare and defend the Appellant.

The attitude of the trial Court in denying the Appellant the documents requested for and the trial’s Court’s refusal to grant the adjournment in the circumstances of this case, certainly amounts to breach of Section 36 (1) of the 1999 Constitution of the FRN (as amended).

The provision of Section 36 (1) provides thus:- “In the determination of his civil/rights and obligations, including any question or determination by or against any Government or authority, a person shall be entitled to a fair hearing within a reasonable time by a Court or other Tribunal established by law and constituted in such manner as to secure its independences and impartiality.” By the above provision, the trial Court was wrong to have denied availing the Appellant with the documents to prepare and defend himself in the forfeiture proceedings.

In otherwords, by the provisions of Section 36 (1) of the 1999 Constitution of the FRN (as amended), a party, in this case, the Appellant is entitled to prepare for his case by discoveries and interrogaries of vital document towards the building of his case/defence. The trial Court having rejected the two requests of the Appellant’s counsel, the trial Court proceeded in error by holding as follows:- “Therefore Section 179(1) of the ACJA the prosecution’s application deserves to succeed and it is accordingly granted as prayed.

I hereby make the following orders- (1) The surety Senator Ali Ndume shall be remanded in correctional centre Kuja pending compliance or fulfillment of any of the following conditions- (a) That he forfeits the Bail Bond of N500,000,000.00 to the Federal Government of Nigeria.

That is he pays the sum of N500,000,000.00 into Federation account and evidence of payment placed before the Court, he shall then be released from custody. (b) That the complainant in this matter the FRN shall sell or dispose of the property situates at plot No 158 Cadastral Zone A04 Asokoro District, Abuja covered by C of O N017d743z-6E3Ke6dzu-10, file No KN11297 dated 28/08/2005 Lawal Ahmed having donated irrevocable power of Attorney to Senator Ali Ndume as the owner of the property being the property that was pledged as security for the bail bond, full sum of N500,000,000.00 recovered and paid into Federation account and evidence of payment placed before the Court then the surety shall be released from custody.

Or The 1st Defendant whose bail has been revoked that is on Bench warrant is produced in Court, then the surety shall be released.” This holding of the trial Court is contrary to Section 179(1) of ACJA 2015 relied upon by the trial Court.

The said Section 179(1) ACJA, 2015 provides:- “Where it is proved to the satisfaction of the Court by which a recognizance has been taken or, when the recognizance bond is for appearance before a Court and it is proved to the satisfaction of the Court that a recognizance has been forfeited, the Court shall record the grounds of proof and may call on any person bound by the bond to pay the penalty thereof or to show cause why it should not be paid.” Section 179 (1) of the ACJA 2015 makes conditions to be satisfied before forfeiture as follows:- (a) The trial Court shall record the grounds of proof of the subject of forfeiture; (b) call on the person bound by the bond to pay; (c) the person called upon to explain or show cause why he should not pay the penalty.

Before I consider the implication of Section 179 (1) of the ACJA, 2015, let me briefly comment on the nature of bail, effect of granting and who a surety is in the scheme of things.

Firstly, the nature of bail as the word connotes is a contract. In the case of ADAMU SULEMAN & ANOR V C.O.P PLATEAU STATE (2008) LPELR-3126, the Supreme Court per TOBI JSC (of blessed memory) held:- “The right of bail, a constitutional right, is contractual in nature. The effect of granting bail is not to set the accused free for all times in the criminal process but to release him free for all times in the criminal process but to release him from the custody of the law and to entrust him to appear at his trial at a specific time and place.

The object of bail pending trial is to grant pre-trial freedom to an accused whose appearance in Court can be compelled by a financial sanction in the form of money bal. The freedom is temporary in the sense that it lasts only for the period of the trial. It stops on conviction of the accused. It also stops on acquittal of the accused. The contractual nature of bail is provided for in Section 345 of the Criminal Procedure Code.

The section provides that before any person is released on bail he must execute a bond for such sum of money as determined by the police or the Court on the condition that such person must attend at the time and place mentioned therein until otherwise directed.

And if the person is released on bail, the sureties must execute the same or another bond or other bonds containing conditions to the same effect.” In the instant appeal evaluating the facts at the trial Court, there was a contractual relationship between the trial Court and the Appellant wherein the Appellant was the surety to the Defendant (now a convict) to ensure his appearance in Court to face his trial at all times. And the Appellant as surety denotes that he was primarily liable for paying for another’s debt or obligation whether primarily secondarily, conditionally or unconditionally.

See the Blacks Law Dictionary, 9th Edition, 2009 on the meaning of “surety.” If I may ask, what is the criminal offence of the Appellant that warrants the trial judge to make an Order remanding the Appellant in Correctional Centre? I have perused the provisions of both the Administration of criminal Justice Act 2015, the Criminal Procedure Act and Criminal Procedure Code dealing with sureties, I am unable to lay my hands on any provision that empowers the Court to remand a surety for failure to produce a defendant, suspect or accused person standing trial in a criminal offence.

The relationship between the surety and the Court is contractual and where the surety fails to produce the Defendant/suspect in Court for his trial, the Court will now evoke those bail conditions in accordance with the law before bond is forfeited. In otherwords, the Appellant, Senator Mohammed Ali Ndume was remanded in the correctional centre without a known offence in law. A close look at the provisions of Sections 165 and 179 of the ACJA, 2015, it does not empower the trial Court to remand the Appellant.

A judicial officer must be circumspect in the application of his judicial powers and such exercise must be done judicially and judiciously in accordance with the law. Thus, therefore the order remanding the Appellant in the correctional centre by the trial Court, the trial Court has crossed the red lines of his Oath of office and therefore null, void and unconstitutional. Now Section 179(1) of the ACJA, 2015 as I said earlier imposes conditions in the enforcement of forfeiture bond sums.

It is on record that the Appellant deposed to an affidavit of means on 5/05/2020 wherein the Appellant deposes at paragraphs 7 – 10 as follows:- Paragraph (7) provides:- “That I am aware of the bail bond of N500,000,000.00as a condition against the Defendant Paragraph (8)- The property used in the fulfillment of the Bail term belongs to me personally Paragraph (9)- That I am ready to produce him in Court to stand his trial or I shall forfeit the bail bond in default” Paragraph (10)- That if the Defendant jumps bail I the surety shall forfeit the bond to the tune of 500 million Naira to the Federal Government of Nigeria.

The fact that the surety i.e Appellant has deposed to the above facts in his affidavit of means, the trial Court cannot proceed to make an order forfeiting the property or the bond sum without calling on the surety (Appellant) to show cause why the Court cannot make such an order forfeiting the properties to the Federal Government of Nigeria. I have painstakingly perused the Record of Appeal and especially the proceedings of 18/11/2020 and 23/11/2020, I am unable to find where the trial Court called upon the Appellant to show cause.

The position of the Appellant at pages 251-252 of the Record of Appeal and the submissions of Appellant’s counsel at page 275 of the Record of Appeal ought to have triggered in the mind of the learned trial Judge that fundamental right to fair hearing of the Appellant is in issue and thus, having refused to afford or avail obligating the Appellant the documents as well as an adjournment, the trial Court proceeded in error to make such consequential orders of forfeiture without calling on the Appellant to show cause. See FRN V MAISHANU, (2019)7 NWLR (pt 1671)2023 at 223.

This is a fundamental breach to Right of the Appellant as guaranteed by the constitution of the Federal Republic of Nigeria, 1999 (as amended). And a breach of the Appellant’s Fundamental Right without affording him the opportunity to make explanations on the forfeiture, the entire proceedings is a nullity, unconstitutional and of no effect whatsoever.

In the case of PEOPLES DEMOCRATIC PARTY (PDP) & ORS V BARR SOPUL UCHUKWU, (2017) LPELR-42563, the Supreme Court of Nigeria held as follows:- “It is well settled that any proceeding conducted in breach of a party’s right to fair hearing is a nullity. See A.G RIVERS STATE V UDE & ORS (2006) 17 NWLR (pt 1008) 436 AND NICHOLAS CHUKWUJEKWU UKACHUKWU V P.D.P & ORS (2014) LPELR 22115(SC).”

In conclusion, all the issues for determination as set out by the Appellant are hereby resolved in favour of the Appellant and against the Respondent. Thus, the appeal succeeds and it is hereby allowed. The decision of the Federal High Court in Suit No. FHC/ABJ/CR/258/2019 delivered on 23rd November, 2020, being a nullity, it is accordingly set aside including the consequential orders of forfeiture thereto. No order as to cost.

HARUNA SIMON TSAMMANI, J.C.A.: I had the advantage of reading in advance the draft of the judgment delivered by my learned brother, Danlami Zama Senchi, JCA. ​ My learned brother, D.Z. Senchi, JCA has painstakingly and exhaustively considered and pronounced upon all the essential issues that came up for determination in this appeal. Clearly, from the facts as disclosed in the record of appeal, the Appellant was not accorded a hearing before the order of forfeiture of his property was made by the trial Court.

That being so, the order of forfeiture made against the Appellant was a nullity and liable to be set aside ex debito justitiae. It is for the above reason and the other reasons detailed in the lead judgment that I agreed that the appeal has merit and it is hereby allowed. I abide by the consequential orders made by my learned brother.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I had read before now in draft the lead judgment just delivered by my learned brother, Danlami Zama Senchi, JCA. I am in complete agreement with the reasoning and conclusion contained therein. ​ I therefore also allow the appeal. I hereby set aside the judgment of the Federal High Court in Suit No. FHC/ABJ/CR/258/2019 delivered on 23rd November, 2020, by O. E. Abang, J.

Judgment

HELEN MORONKEJI OGUNWUMIJU, J.S.C. (Delivering the Leading Judgment): This is an appeal against the decision of the Court of Appeal, Abuja Division delivered on 24th May, 2012 which upturned the decision of S. O. Otu, J. of the High Court of Kogi State sitting at Okene delivered on 13/11/2009.

The facts that led to this appeal are as follows, The Respondent was arraigned on a two-count charge of criminal conspiracy and Armed Robbery contrary to Sections 97 (1) and 298 (c) respectively of the Penal Code. The Prosecution called 3 witnesses and tendered Exhibit “A”. The Respondent testified and called only one witness.

At the end of the trial, Counsel addressed the Court and in a considered judgment, the learned trial judge convicted the Respondent and sentenced him to a term of 12 years imprisonment on 13/1/2009. The Respondent being dissatisfied with the decision of the trial Court appealed to the Court of Appeal; Abuja Division by a Notice of Appeal filed on 5/1/2010. The Counsel for the respective parties filed and exchanged briefs of argument.

​The Court of Appeal in its judgment of 24/5/2012 upturned the judgment of the trial Court and in its place entered a verdict of discharge and acquittal in favour of the Respondent. The Appellant being dissatisfied with the decision of the Court below has now appealed to this Court on three 3 grounds of appeal.

The facts adduced by the Prosecution in proof of its case is to the effect that PW1 and PW2 who were Police Officers were on their way from the old Police Barracks to the new Police Barracks at Okene when they were accosted by the Respondent and one other person (hereinafter called the accomplice). The accomplice snatched the handset of the PW2 and ordered the Respondent to show the witnesses what he had with him. The Respondent then opened his shirt and the witnesses saw a pump action gun in his possession. The accomplice also snatched the sum of N25,000.00 from the PW2.

The PW2 later slapped the Respondent and the “pump action” gun fell from him. The PW1 then took the gun and hit the accomplice on the head and the accomplice fell down. The PW1 helped PW2 to overpower and subdue the Respondent. The accomplice who had been on the ground all these while stood up and bolted away. The Respondent who had been overpowered was arrested and taken to the Police Station.

The Respondent on the other hand stated on Oath that on the very day of the incident, he went to the bush to get some herbs on account of the fact that he was sick. While there in the bush some boys accosted and robbed him of N25,000. On his way back home through the Police Barracks, he encountered the Prosecution witnesses who alleged that he had robbed them. He denied being a robber and informed them that he too was also a victim of the robbery incident. The Prosecution witnesses slapped him, arrested him and took him to the Police Station at Okene.

There the Respondent made Exhibit ‘A’ before his case was transferred to the Criminal Investigation Department at Lokoja.

​The trial Court held that the Respondent by his extra judicial statement Exhibit “A” already admitted that he was in possession of a gun and it was unbelievable that the robbers gave him the gun. The Court found that the Respondent’s boss who gave evidence as DW1 did not have any knowledge of what transpired at the time material to the case. Based on the evidence of PW1 and PW2, the Court held that their testimony showed how the Defendant with the accomplice conspired to commit the offence.

The Respondent who had pretended to be sick had stayed back at work till 6.00pm in furtherance of the common and agreed criminal plan. The trial Court convicted the Respondent for the reasons given above. The Respondent being dissatisfied appealed to the Court below.

The Court of Appeal adopted the Respondent’s issues. The Court of Appeal held that PW1 did not include in his statement that his handset and N25,000.00 were stolen until at trial stage and that where a victim fails to state at the earliest opportunity to the Police vital information regarding the property stolen or the name of the assailant, the Court should be careful in accepting the story. The Court held further that there were contradictions in the story of the prosecution witnesses regarding how the money was stolen.

The Court of Appeal expunged Exh. ‘A’ the statement of the Respondent and held that since the trial Court did not make a specific finding on whether or not the Respondent made Exh. ‘A,’ the exhibit was inadmissible in evidence. The Court below also held that the evidence of the two Prosecution witnesses was unreliable since they could not give account of the stolen items and the exhibits i.e. gun used to rob them.

Notice of appeal to the Supreme Court was filed on 22nd August, 2013 with two grounds of appeal. The issues distilled by both parties are similar. In my view, the sole issue for determination here is as follows:- Whether upon a careful perusal of the totality of the evidence of the Prosecution, the Court below was right to have acquitted and discharged the Respondent.

In the Appellant’s brief settled by J. A. Akubo Esq., learned Counsel argued that since the Respondent admitted on oath that he was at the venue of the incident with someone who robbed him at the time of the incident and that he encountered PW1 and PW2, coupled with the fact that the evidence of both witnesses was not discredited during evaluation by the trial Court in its evaluation of the evidence before it.

Counsel cited Akeem Agboola v. The State (2013) 11 NWLR Pt. 1366 Pg. 619 at 641; Adeniyi Adekoya v. The State (2012) 9 NWLR Pt. 1306 Pg.539 at 582.

Counsel also contended that there are no substantial contradictions in the evidence of PW1 and PW2 to render same unreliable and unworthy of belief as the said examples of contradictions are minor, immaterial and inconsequential. Counsel submitted that only material contradictions would affect the case of the prosecution adversely. Counsel cited ISIBOR v. The State (2002) SCNJ 162 at 167; ENAHORO v THE STATE (1965) NSCC (Vol.4) Pg.98 at 113.

Learned Appellant’s Counsel argued that the substance of the evidence against the Respondent to wit that he held a gun while his accomplice robbed PW2 of his money and handset is not in issue. The specific denomination of Naira notes carried by the victim is irrelevant. Counsel also submitted that the finding of the Court below that it had to expunge Exh. A from the evidence of the prosecution is perverse.

​Counsel argued that the conclusion of the Court below that in the absence of a specific finding by the trial Court on the issue of whether or not Exh, ‘A’ was made by the Respondent, makes Exh. ‘A’ inadmissible is erroneous. Counsel argued that the trial Court gave a considered Bench ruling on Exh. ‘A’, the final address of Respondent’s Counsel at trial did not mention Exh. ‘A’, so no live issue was raised on Exh. ‘A’ regarding its admissibility before the trial Court or the Court of Appeal to warrant any pronouncement on it. Counsel cited FEDERAL MINISTRY OF HEALTH & ANOR V.

COMET SHIPPING (2009) 9 NWLR Pt.1145 Pg.193 at 220-221, WILSON v. OSHIN (2000) 9NWLR Pt.673 Pg.442, ODUNAYO v. THE STATE (1972) 8-9 SC.290. Counsel urged this Court to hold that the acquittal and discharge of the Respondent was perverse and unreasonable.

In the Respondent’s brief settled by K.C. WISDOM ESQ., Counsel argued that the Respondent during the trial had stated that Exhibit “A” was not the statement that he volunteered to the Police as he could not sign but thumb printed the document made by him. The Respondent under cross-examination affirmed this fact on page 32 lines 4 of the record. It follows therefore that the Respondent had retracted the statement allegedly made by him.

Counsel submitted that where a Defendant retracts an extra-judicial statement allegedly made by him, the Court should admit the statement and determine, in its judgment, whether the statement was actually made by the defendant or not. Counsel cited IKPASA v. Bendel State (1982) NCLR 152 AT 162.

​Counsel further argued that the learned trial judge did not at any stage in the consideration of this case advert his mind to the question of whether the Respondent made the statement tendered or not. There was therefore a straight issue of fact which should have been determined by the trial Court. The trial Court in this case did not determine the issue. Counsel argued that in the absence of a specific finding by a trial Court on an essential fact, an appellate Court cannot choose between the two versions in order to make a finding of fact which the trial Court did not make.

Rather, the only conclusion an appellate Court can draw from the conflicting evidence in that situation is the one most favourable to the Respondent. Counsel cited EJUREN v. POLICE (1961) ALL NLR 498 AT 501.

​Counsel further argued that the failure of PW1 to state categorically in his statement to the Police that he lost his handset and N25,000.00 in the course of the robbery is fatal to the case of the Prosecution. Counsel submitted that where a victim or eye-witness to a crime fails at the earliest opportunity to mention to the Police vital information such as the name of the Defendant or the property stolen by the Defendant, the Court should be careful in accepting his story.

Counsel cited ABDULLAHI v. STATE (2008) 17 NWLR Pt. 1115 Pg.203 AT PG. 216. Counsel argued that the identity of the person who took the handset and the money is very material in this case and in the absence of contradictory evidence regarding that fact, any doubt was rightly resolved in favour of the Respondent by the Court below.

OPINION My Lords, I would not go as far as to call Exhibit “A” “a confessional statement” as the two lower Courts and the parties have done, I must say that Exhibit A is not a truly confessional statement in that as improbable as it is, it is not a direct and positive confession to the crime of conspiracy and armed robbery by the Respondent. In Exhibit A, the maker states that he was robbed and the robber gave him the gun and he pursued the robber into the Police Barracks to return the gun and encountered the victims who arrested him. He denied the robbery.

It is apt to set out the contents of Exhibits A; I wish to state that I finished my primary school education from NA Primary School, Okene in the year 2002 and I have been learning Welding since then. My father is in Ogaminana while my mother Is in Idogido. Throughout this week we have been very busy at the shop welding some windows and doors and I was getting sick so I did not go to work yesterday. At about 1830 hours I came to the back of Otutu Secondary school so that I can cut mango tree back so that I can use it for herbs as one woman advised me.

I did not carry cutlass to cut the tree back. When I got to the mango tree two boys whom I did not know but can recognize ambushed me and collected the sum of two hundred and fifty naira from me. One of them was with a gun. He gave it to me to hold and was walking into the Police Barracks. I told him that I can’t hold the gun so I was pursuing him to give it back to him. The other one remained in bush. When I followed the other one into the Barracks, I was hiding gun under my shirt. I saw that he collected handset from one person inside the Barracks.

The person was struggling with him that was when I got there and asked him to collect the gun. He did not collect it. Then the gun fell on the ground. I began to go because I know that trouble must come. That was when one short officer held my shirt and hit my face. I fell on the ground and they arrested me. Then I was brought to the station by some people who were around. The other boy ran away. I don’t know the two boys before. I am not a thief. I don’t belong to any gang. I am a welder. Everybody knows me at Inike where I work. This is all my statement.

In any event, at the point of tendering the statement, the Respondent’s Counsel objected to its admissibility on the basis that the Respondent did not sign the statement he made to the Police but thumb printed whereas the statement sought to be tendered was signed. This Court had reiterated the settled position of the law on several occasions. There are two ways of retracting an extra judicial statement in a criminal trial whether confessional or not.

The first is by the Defendant and/or his Counsel admitting at the point of the statement being tendered by the prosecution that indeed the Defendant made the statement BUT was forced by threats, violence to his person, inducement etc. to make same by the Police. At that point, Defence Counsel must state categorically according to his brief whether it was by threats, violence or inducement of any gain etc. that the Defendant was made to confess.

The onus being on the Prosecution at all times to prove the guilt of the Defendant, the prosecution must discharge the onus of proof that indeed the Defendant volunteered the statement since an involuntary statement extracted by threats, inducement etc. from a Defendant contravenes Section 29 of the Evidence Act, and would be inadmissible for all purposes in evidence. To prove the voluntariness of the statement, the Court calls for and conducts a trial within trial to determine whether or not the statement sought to be admitted by the Prosecution was voluntarily made.

The second instance of retraction of a confessional statement is where the confession is wholly retracted, that is where the Defendant denies making the statement at all, denies the signature on the statement, claims he was forced to sign a statement he never made at all, or as in this case agreed he made a statement but says the statement sought to be tendered is not the one he made at all, etc. The possibilities of a full retraction are endless. In such an instance, there is no question whether or not the statement/confession is admissible.

The law is that it is admissible as evidence of an event which had occurred in the course of Police investigation into the charge and the Court is entitled to decide as a matter of fact whether in the circumstances, the Defendant actually made the statement or not. It is my view, that there need be no formal statement of the finding so long as the circumstances in which the offence was committed and the contents of the statement are considered to enable the Court make a just finding on its credibility.

Also, whether the statement is true in so far as it can be ascertained by other undisputed evidence. That is the probability test or credibility test. The Court then decides what weight to be attached to such a statement. See: BASIL AKPA v. THE STATE (2008) 14 NWLR Pt. 1106 Pg.72 at Pg. 98-99. The trial Court held thus, on Pg. 42 of the record:- “Even though the accused denied robbing the victims or belonging to a gang, a careful scrutiny of exhibit A shows its confirmation of the evidence of PW1 and PW2.

It is beyond comprehension that a victim of robbery will be given a gun by the robber who has just robbed him and walk away calmly to the Barracks. It is even more weird that the victim, the accused in this instance, will hold onto the gun, put it under his shirt and go after the robber with intention of giving the gun back to that robber. I have no doubt in my mind that while attempting to deny the allegation against him, the accused person has merely enmeshed himself more into the culpability net.

I have no doubt therefore that the accused himself has admitted being in possession of a gun on the day of incident when he was arrested and so the non-tendering of the gun cannot be fatal to the case of the prosecution.”

The Court below held as follows on page 109 of the record: In the instant case, the learned trial judge did not at any stage during the consideration of this case advert his mind to the question of whether the Appellant made the statement under consideration. It is therefore my view that in absence of a specific finding on the issue stated above on the issue whether or not exhibit “A” was made by the Appellant, this Court as an Appellate Court cannot choose between the two versions in order to make finding of fact which the trial Court failed to make.

In the circumstance, it is my view that the Appellant did not make the statement and it is hereby expunged from the Record.

I cannot bring myself to agree with the finding of the Court below to the effect that the trial Court made no specific finding on whether or not the Respondent made Exh. A. I cannot also bring myself to agree that the trial Court made no specific finding on the credibility and the probative value to be attached to Exhibit A. I am of the view that it is very clear on the record that the trial Court found the story of the Respondent in Exhibit A improbable and that its improbability supports the case of the Prosecution in all material particulars.

That much was made clear in the judgement of the trial Court. I am of the view that the Court below was wrong to expunge Exhibit A from the evidence of the Prosecution as it was properly admitted, and a finding was made on it by the trial Court. There is no doubt that the onus is on the Prosecution throughout to prove the case beyond reasonable doubt as required by Section 135 (1) of the Evidence Act. See: ANI v. THE STATE (2009) 16 NWLR (Pt.1068) 443 AT 457; STATE v. AIBANGBEE (1988) 7 SC (Pt.1) 96 AT 132-133; AMINU TANKO v. THE STATE (2009) 16 NWLR (Pt.1114) 597 AT 636.

I agree with the contention of the Appellant’s Counsel that the function of evaluation of evidence is essentially that of the trial judge. When he satisfactorily performs this duty, an appellate Court should not interfere. Ordinarily, an appellate Court will not interfere with the decision of a trial Court where so much of it turns on the credibility or reliability of the witnesses on the rational that ascription of probative value to such evidence is the primary function of the trial Court which saw, heard and assessed the witnesses.

The Appellate Court will not interfere merely for substituting its view for the view of the trial Court where the trial Court has properly evaluated the evidence and made findings of fact. See: ALHASSAN MAIYAKI v. THE STATE (2008) 15 NWLR (Pt.1109) 173 AT 202 & 211; OCHUKO TEGWONOR v. THE STATE (2008) 1 NWLR (Pt.1069)630 AT 654-655; DOKUBO-ASARI v. FRN (2009) 37 NSCOR (Pt.11) 1146 AT 1173)19; JOSEPH OYEWOLE v. KARIMU AKANDE & ANOR (2009) 15 NWLR (Pt. 1163) 119 at 143.

To prove armed robbery the Prosecution must adduce evidence that: a) That there was robbery;

b) That the robbery was committed while the accused person was armed with offensive weapons; c) That the accused person participated in the robbery.

My Lords, in this appeal, the victims who were Policemen stated their encounter with the Respondent on that day. The Respondent in his own evidence on Oath admitted that on that day he actually, encountered the Policemen while he was on the road – Barracks Road where the Policemen were robbed. The only difference is that he claimed to have also been robbed by two boys prior to his encounter with the policemen and denied robbing the Policemen. In my view this boils down to a case of Oath against Oath.

The strenuous point made by the Respondent relates to when precisely the handset and N25,000.00 of PW2 were stolen. Heavy weather was made by the Respondent on the issue of fact of whether the money was taken by the accomplice from PW2 or PW2 gave up the money after he was threatened with the gun being held by the Respondent.

​It is pertinent to note that PW1 and PW2 are ad idem in their evidence without contradictions that it was the Respondent herein who was in possession of the gun that was used by him to threaten the victims while the accomplice was the one who collected the handset and money of PW2 and ran away with them. The trial Court which saw and heard them believed their evidence in that regard.

The fact that PW1 and PW2 were able to establish in their uncontroverted evidence that they met two boys of whom the Respondent is one and the 2nd one at large shows that a case of criminal conspiracy and armed robbery had been proved by the Appellant against the Respondent herein.

I do not agree with the lower Court that in this case it is material whether PW1 gave the accomplice the money before or after he was threatened with a gun or whether or not the one victim knew the denomination of the money taken from the other victim. The record at the trial Court does not show that these issues were contested and that they constituted material contradictions. In ISIBOR v. THE STATE (2002) 2 SCNJ 162 at 167, this Court held that: It is well established that contradictions which do not affect the substance of the issue to be decided are irrelevant.

The contradictions must be shown to amount to a substantial disparagement of the witness or witness or witnesses.”

The most important issue raised against the credibility of the Prosecution witnesses was the failure of PW1 to state at the earliest opportunity that he lost his handset and the sum of N25,000.00 was taken from him by the Respondent’s accomplice. My Lords, the case of ABDULLAHI v. THE STATE (2008) 17 NWLR Pt.115 Pg.203 and cases in like ilk relied upon are not really relevant in the circumstances of this case. In ABDULLAHI v. THE STATE; relied on by the Respondent, the Defendant was not arrested at the scene of crime and the identity of the armed robbers was a live issue at trial.

Also in that case, the victims of the armed robbery said in their evidence that they knew the armed robbers before the date of the armed robbery incident but failed to mention their names at the earliest opportunity when they reported the case to their neighbors and the community leader as well as in their statements to the Police. The law on this point by this Court is as stated by KATSINA-ALU JSC (as he then was) inABDULLAHI v. STATE SUPRA as follows: The position of the law is this.

Where a witness failed to mention the name of an accused whom he knew before the commission of a crime, to the Police at the earliest opportunity, that would detract from what-ever credibility the trial Court may wish to ascribe to his evidence. In addition, he should describe the clothes the accused wore at the scene of crime. Surely this is common sense and failure to adopt this commonsense approach would inevitably result in the acquittal of the accused”.

However, in the instant case, the Respondent was arrested at the scene of crime or caught in the course of committing the offence of armed robbery. The items stolen are known in the instant case. The handset and money were stolen by the accomplice of the Respondent, while the gun was found in possession of the Respondent who used it to threaten PW1 and PW2.

Finally, the failure of the Police to tender the gun is not fatal to the Prosecution’s case. The witnesses (victims) stated that the case was later transferred to the CID Lokoja. No issue was made at the trial of the absence of the gun. The circumstances when the failure to tender the gun would adversely affect the case of the prosecution is absent here. There was no controversy about the existence of a gun. There was no controversy about the type of gun used.

There was no issue of ballistic report in contention to warrant absolute certainty about the model of the gun or the type of bullets used. The Respondent said on oath that he was also robbed by some boys carrying a gun.

There is no reason to interfere with the findings of the trial Court relating to the credibility of the prosecution witnesses, the proper probative value to be placed on Exhibit ‘A’ which I agree lent credence to the evidence of the Prosecution witnesses which proved the charge against the Respondent beyond reasonable doubt.

In the circumstances, this appeal succeeds. The Judgment of the Court of Appeal delivered on 24/5/2012 is hereby set aside. I restore the conviction and sentence of the Respondent for conspiracy and armed robbery. Appeal Allowed.

MUSA DATTIJO MUHAMMAD, J.S.C.: I read in draft the lead judgment of my learned brother HELEN MORONKEJI OGUNWUMIJU, JSC just delivered. I am in complete agreement with the reasoning and conclusion advanced in the lead judgment which I hereby imbibe in allowing the meritorious appeal. I abide by the consequential orders contained in the lead judgment.

CHIMA CENTUS NWEZE, J.S.C.: My Lord, Ogunwumiju, JSC, obliged me with the draft of the leading judgment just delivered. I agree with His Lordship that this appeal deserves to be allowed.

On issue one, it is a general principle of criminal law that, contradictions in evidence which do not affect the substance of the issue is irrelevant. The contradiction that would make an appellate Court disbelieve the prosecution witnesses must be on a material point in the case, capable of upturning the decision of the trial Court.

Minor or miniature contradictions which do not touch on any of the ingredients of the offence charged will not be of any moment, Jimmy v The State (2013) 18 NWLR (Pt 1386) 229; Enahoro v The State (1965) NSCC (vol. 4) 98 at 113; Isibor v The State (2002) 4 NWLR (Pt. 758) 741; Sele v The State (1993) 1 NWLR (Pt. 269) 276.

Furthermore, when the issue involves the credibility of witnesses, an appellate Court is handicapped to intervene. This is because the trial Court, being the master of facts and evidence, has the sacred duty of seeing and hearing witnesses. Therefore, having properly evaluated the evidence before it, an appellate Court is not allowed to intervene, Fatai v The State (2013) 10 NWLR (Pt. 1361) 1; Babatunde v The State (2014) 2 NWLR (Pt 1391) 298; Jibrin v F.R.N (2018) 13 NWLR (Pt.1635) 20.

I am of the firm view that the Court below was in error when it held that PW1 failed to give account of the items stolen at the earliest opportunity which had occasioned a miscarriage of justice, in effect challenging the credibility of PW1. Having the advantage of seeing and hearing the witnesses testify and having observed the demeanor of the witnesses, it is only the trial Court that is best suited to decide on the credibility of witnesses.

An appellate Court cannot substitute its own views for the views of the trial Court,Efe v The State (1976) 11 SC 75 at 81; Sanyaolu v The State (1976) 5 SC 37 at 44; Okonofua v The State (1981) 6-7 SC 1.

As regards issue two, my learned brother found that “Exhibit A” is not a confessional statement. I am also inclined to agree with His Lordship. A confessional statement is one in which the accused person admits to the commission of the offence for which he is charged, Solola v The State ​(2005) 11 NWLR (Pt 937) 460.

In the instant case, the accused person in his statement already reproduced in the leading judgment did not admit to the commission of the offence of armed robbery to which he is charged. Such statement may at best be referred to as an “extra-judicial statement”. The law is trite that an extra- judicial statement is an admissible evidence, Sadau v The State (1965) 1 All NLR 124. The effect being that the Court can legally rely on it.

Where an objection is raised to its admissibility, it is within the competence of the trial Court to act on it by determining the evidential value to be placed on it in determining the guilt of the maker, Balogun v FRN (2021) 11 NWLR (Pt.1787) 353.

Learned Counsel for the respondent objected to the admissibility of the so-called confessional statement at the trial Court, on the ground that the Respondent did not sign the statement but rather thumb-printed on it and that the statement sought to be tendered was signed.

Assuming, though not conceding that this was a confessional statement, this Court has held in a plethora of cases that a valid mode of retraction of confessional statement is where the accused person, though admits to making a confessional statement but goes on to explain to the Court that the confessional statement being tendered was not the one made by him; Onwumere v The State (1991) 4 NWLR (Pt. 186) 428 at 440.

The law is settled that the retraction of a confessional statement, especially one retracted in the manner done by the Respondent, does not render the confessional statement inadmissible. It therefore does not preclude the Court from relying on it, Alao v The State (2019) 17 NWLR (Pt.1702) 501; State v Ibrahim (2019) 9 NWLR (Pt. 1676) 137; Ikemson v The State (1989) 1 CLRN 1; Sule v The State (2009) 17 NWLR (Pt.1169) 33; Busari v The State (2015) 5 NWLR (Pt.1452) 343; Bisi v The State (2021) 12 NWLR (Pt 1790) 205; Iorapuu v The state (2020) 1 NWLR (Pt. 1706) 391.

It is however desirable at this stage, that the Court should, outside the confessional statement, look for some corroborative evidence. No matter how slight. State v Masiga (2018) 8 NWLR (Pt. 1622) 383; Hassan v The State (2001) 15 NWLR (Pt. 735)184.

Having established that “Exhibit A” was an admissible evidence, it is my view that the Court below was in error when it chose to expunge the evidence from the Record of Proceedings. Any evidence which is admissible in law, remains so and should not be excluded. It is for this and the more detailed reasons in the leading judgment that I too shall enter an order allowing this appeal.

UWANI MUSA ABBA AJI, J.S.C.: My learned brother, Helen Moronkeji Ogunwumiju, JSC, advanced to me the draft copy of the lead judgment just delivered. I have read through and agree that the appeal be allowed.

The issue couched in the lead judgment is hereby adopted thus: Whether upon a careful perusal of the totality of the evidence of the prosecution, the Court below was right to have acquitted and discharged the Respondent.

​In the present appeal, the Respondent was arrested at the scene of the crime by PW1 and PW1, who happened to be police officers that the Respondent with his accomplice while armed, robbed of handset and money with a gun brandished by the Respondent. The Respondent’s case that, while sick, he went to the bush for herbs where some boys robbed him of N25.00 and on his way back home, he met PW1 and PW2, who arrested him and took him to the Okene police station; is obviously the most concocted and improvised defence to put up in any criminal case of this magnitude.

The failure to tender the gun cannot be a ground for the discharge and acquittal of the Respondent.

Once the prosecution proves the ingredients of armed robbery beyond reasonable doubt, failure to tender the offensive weapon cannot result in the acquittal of the accused person. This is because of the possibility of the accused person doing away with the offensive weapon after the commission of the offence in order to exculpate himself from criminal responsibility. Nothing stops an accused person from throwing away or hiding the offensive weapon completely outside the investigative eyes of the Police.

If there is compelling evidence that the accused person committed the armed robbery, failure to tender the offensive weapon, in the circumstances, cannot therefore be basis of acquittal. Per TOBI, JSC, in FATAI OLAYINKA V. THE STATE (2007) LPELR-2580(SC) (PP. 21-22 PARAS. G).

​In this while therefore, I agree with the decision of my learned brother, Helen Moronkeji Ogunwumiju, JSC, setting aside the judgment of the lower Court. I consider the lower Court’s judgment as perverse and fit for setting aside. The appeal hereby succeeds and is allowed.

ADAMU JAURO, J.S.C.: I had the privilege of reading in draft the lead judgment just delivered by my learned brother, Helen Moronkeji Ogunwumiju, JSC. I am in agreement with the reasoning and conclusion contained therein, to the effect that there is merit in the appeal.

It is trite law that the prosecution is duty bound to establish the following essential elements beyond reasonable doubt to secure a conviction for the offence of armed robbery: a. That there was a robbery incident or series of robberies. b. That the robbery or each of the robberies was an armed robbery. c. That the accused was the armed robber or one of the armed robbers. See JOHN V. STATE (2019) LPELR – 46936 (SC); STATE V. SANI (2018) LPELR – 43598 (SC); AMEH V. STATE (2018) LPELR – 44463 (SC).

In the instant case, the evidence of PW1 and PW2 takes it beyond doubt that there was a robbery as they described how they were accosted by the Respondent and his accomplice and how they were robbed of a phone and the sum of N25,000.00.

The witnesses also proved the second ingredient of the offence beyond reasonable doubt. Their evidence that Respondent was in possession of a gun which was used to threaten and rob them of their possessions was not controverted at trial. From the foregoing, there is no gainsaying that the Appellant also proved that the Respondent was one of the robbers who attacked them.

​The Appellant having proved the elements of the offence beyond reasonable doubt, I see no basis for the lower Court’s setting aside of the conviction and sentence of the Respondent by the trial Court. For the above reasons and the more elaborate ones enunciated in the lead judgment, I too allow this appeal. I abide by the consequential orders made. Appeal allowed.

Judgment

MARY UKAEGO PETER-ODILI, J.S.C. (Delivering the Leading Judgment) : This is an appeal against the judgment of the Court of Appeal, Lagos Division or lower Court or Court below, Coram: Nimpar, Ogakwu and Obaseki-Adejumo JJCA delivered on the 13th April, 2018 in which the appellant’s conviction and sentence by the trial Court per Ofili-Ajumogobia J. was affirmed by the Court below.

BACKGROUND FACTS The appellant was charged on a one-count charge of dealing in 2.0 kilograms of Cannabis Sativa (otherwise know as marijuana). The appellant pleaded guilty to the charge. The prosecution tendered a confessional statement from Pidgin English language by one Oligbo Okey, an officer/agent of the NDLEA.

On this basis, the trial Court in its judgment delivered on 2nd March 2016 convicted the appellant of the Charge and sentenced him to 25 years imprisonment with hard labour.

​The prosecution called no witness but its Counsel tendered some documents from the Bar which were admitted in evidence as EXHIBITS PD1-PD9. The alleged confessional statement written in the Pidgin English was admitted as EXHIBIT PD3A while the English translation of same was admitted as EXHIBIT PD3B.

Prosecution’s counsel further urged the Court to convict the appellant ” …in accordance with Section 356 (2) of the Administration of Criminal Justice Act 2015″. The trial Court then adjourned to 2nd March, 2016 for judgment and same was delivered on that day.

​SUMMARY OF EVIDENCE The appellant was alleged to have dealt in 2.0 kilogrammes of Cannabis Sative (Marijuana) The evidence upon which other exhibits rested was the alleged confessional statement of the appellant. The story therein painted a graphic picture of how the appellant sold Cannabis Sativa at Tipper Garage Ojodu Berger.

The alleged confession which was transcribed from ‘Pidgin English’ to English language showed that the appellant is an illiterate. The confession was written by one Oligbo Okey who works for the NDLEA, in the absence of the appellant’s counsel. Exhibits PDI, PD2, PD4, PD5, PD6, PD7, PD8 and PD9 which emanated from NDLEA and tried to establish the Charge against the appellant are all evidentially premised on his alleged confession.

​The alleged confession further represented that he, appellant was taken to the NDLEA office where the substance allegedly recovered was found to be Cannabis Sativa. Armed with the purported confessional statement it obtained from the appellant coupled with the guilty plea of the appellant, the Prosecution urged the Court to convict him in line with Section 356 (2) of the Administration of Criminal Justice Act 2015.

In his judgment dated 2nd March 2016, the Learned Trial Judge convicted the appellant of dealing in Cannabis Sativa and sentenced him to 25 years imprisonment with hard labour- Aggrieved by the conviction and sentence, the appellant appealed to the Court below on five (5) grounds of appeal and on the 13th April, 2018, the Court below dismissed the appeal and affirmed the conviction and sentencing of the appellant to 25 years imprisonment.

Again, dissatisfied the appellant has come before the Apex Court on a five grounds of appeal.

On the 3/2/2022 date of hearing, respondent and counsel were absent though served on 31/1/2022 and the appeal was heard on appellant’s brief alone by order made on 14/1/2022.

​Learned Senior Advocate, C.O.P.

Emeka adopted the brief of argument of the appellant filed on 27/12/2018 in which he distilled three issues for determination, viz: (1) Whether the Court below was right to uphold the appellant’s conviction on the strength of Exhibits PD3A and PD3B having misconceived the issue of its legal validity under Section 17(2) of the Administration of Criminal Justice Act 2015 with the issue of admissibility under the Evidence (2) Whether the Court below was right to have affirmed the appellant’s conviction based on his plea of guilty when the mandatory provisions of the Administration of Criminal Justice Act, 2015 were not complied with? (3) Whether the prosecution discharged the burden of proof against the Appellant beyond reasonable doubt notwithstanding his purported plea of guilty?

​Learned counsel for the appellant submitted that the Court below erred in law when it misconstrued the appellant’s complaint on Exhibits PD3A and PD3B, the alleged confessional statements. That those exhibits having been admitted much weight ought not to be laid on them in the light of Section 17 (1) (2) of the Administration of Criminal Justice Act (ACJA). He cited Madubigwe Awelle v The People of Lagos State (2016) LPELR-41395 CA; Mkpa v Mkpa (2010) 14 NWLR (pt.1214) 612 at 647 etc.

It was further contended for the appellant that the Court below wrongly affirmed the appellant’s conviction based on his purported plea of guilty when the learned trial Judge failed to comply with the mandatory provisions of the ACJA

Learned counsel for the appellant submitted that there was nothing on record to show that the charge was read and explained to the appellant in Pidgin English that he understood and so the conviction should fail. He cited State v Gwonto (1983) 1 SCNLR 142.

That the non-compliance with the statutory provisions on arraignment amounted to denying the appellant of his rights and that led to a miscarriage of justice. He cited Udofia v State (1988) 3 NWLR (pt.84) 533.

For the appellant, it was submitted that the prosecution failed to prove the essential elements of the charge beyond reasonable doubt. He cited Udosen v Sate (2007) 4 NWLR (pt.1023) 125 at 161 etc.

RESOLUTION The appellant was represented by counsel at the stage of arraignment and after the reading and explanation of the charge to the accused/appellant by the Court. The appellant pleaded guilty to the one count charge and the prosecution tendered the substance and other relevant materials as exhibits among which was the confessional statement made by the appellant.

The stance taken by the appellant is that Section 17 (2) of the Administration of Criminal Justice Act, 2015 was not complied with and so the conviction a nullity. To fully appreciate the statutory provision I shall quote the stipulation thus:-

Section 17(2) of the Administration of Criminal Justice Act 2015 states thus: “Such statement may be taken in the presence of a legal practitioner of his choice; or where he has no legal practitioner of his choice, in the presence of an officer of a Civil Society Organisation or justice of the peace or any other person of his choice.

Provided that the Legal Practitioner or any other person mentioned in this subsection shall not interfere while the suspect is making his statement, except for the purpose of discharging his role as a Legal Practitioner.” ​The appellant contended that the Court below erred in law when it misconstrued the appellant’s complaint on Exhibits PD3A and PD3B, the confessional statements. That Court had stated thus: “This furthermore makes the word ‘way’ a permissive word and not a mandatory word as used in the section.

Admissibility of a confessional statement is not dependent on the presence of counsel or relation at the time of making the confession, Section 29 (1) of the Evidence Act must be satisfied. The said Section 17 (2) of the ACJCA cannot override the clear provision of the Evidence Act”. In a statute, when ‘may’ is used it is generally accepted that it is permissive but exceptions exist when ‘may’ could be mandatory. I shall refer to the case of EDEWOR V UWEGBA & ORS (1987) LPELR-1009 (SC) where the apex Court gave this explanation, it said: “Generally the word ‘may’ always means ‘may’.

It has long been settled that may is a permissive or enabling expression. In Messy v Council of the Municipality of Yass (1922) 22 S.R.N.S.W 494 per Cullen, CJ at pp 497, 498 it held that the use of the word ‘may’ prima facie conveys that the authority which has the power to do such an act has an option either to or not to do it. See also Cotton, L.I. in Re Daker, Michell v Baker ​(1800) 44 CH.D 282 But it has been conceded that the word may acquires mandatory meaning from the context in which it is used.

See Johnson’s Tyre Foundary Pty Ltd v Shire of Maffra (1949) A.L.R, 8& The word may also acquires a mandatory meaning from the circumstances in which it is used, Most of the cases in which the word ‘may’ has a mandatory meaning relate to cases in which they are used in penal statutes conferring powers to Courts.

In Baker (supra) Cotton L.I. said think great misconception is caused by saying that in some cases “may” means must, It can never mean (must) so long as the English language retains its meaning; but it gives a power, and then it may be a question in what cases where a Judge has a power given him by ‘may’, it becomes his duty to exercise it”.

In Over v Felton (1966) A.LR. 1088 Jenkyn J, said that “it lies upon those who contend that an obligation exists to exercise that power to show in the circumstances of the case something which according to the above principles, creates that obligation. ” Per NNAMANI, JSC. ​The Court below stated the several options in implementation of Section 17 (2) ACJA and stated that the word ‘may’ used therein cannot by any stretch of the imagination be interpreted to mean mandatoriness, ‘May’ can be interpreted as compulsory in penal provisions and not otherwise, particularly in criminal procedure legislations.

Indeed, the said Section 17(2) of the ACJA is not a penalty section and in any event the issue of evidence is under a substantive law of Evidence and the Evidence Act provides for how to test the voluntariness of a confessional statement. The question may now arise as to whether the Administration of Criminal Justice Act being a Procedural Law can take precedence over the Evidence Act. It is a procedural breach which in most cases would not vitiate the trial.

See Emedo v The State (2002) 15 NWLR (pt.789) 196 wherein the Supreme Court held that an irregularity is not a factor that would justify the setting aside of a verdict or decision unless a miscarriage of justice is established as propelling that decision of the Court. ​The question of whether an extra statement is confessional or not depends on the facts surrounding a given case since the test of voluntariness of a confession must be carried out before its admissibility.

That is what informs the necessity of a trial within trial once the voluntariness of the statement is challenged by the accused that makes the word ‘may’ in Section 17(2) of the ACJA permission and not a mandatory word.

​With respect to the posture of the learned counsel for the appellant that the appellant did not understand the language used in the Court. This point seems to be of no moment since in the realm of criminal justice, it is a cardinal principle of our criminal jurisprudence that the accused or his counsel is duty bound to bring to the notice of the Court the fact that he does not understand the language in which the trial is being conducted, failure to do so will bring about the presumption that he has no cause for complaint.

To buttress the point, is that the fact that the accused does not understand the language in which the trial is being conducted is within the knowledge of the accused and it is for him or his counsel to take the initiative to cry out and bring to the notice of the Court at the earliest opportunity or so soon as the situation has arisen. If he lets go of that claim of his right to complain at the appropriate time, he loses the right to complain thereafter. See Francis Durwode v The State (2000) LPELR-972; Ibrahim v The State (2013) LPELR-21883 (SC); Madu v The State (1997) 1 NWLR (pt.482) 386.

The point has to be brought out that the appellant was represented by counsel who did not raise the issue of the appellant not understanding the English language which is the language of the Court. Again to be said is that appellant gave his answers on arraignment in English language and so the current grouse of the appellant’s counsel is strange in the conflicting instance of an accused/appellant answering questions in English language and now turning around to claim a lack of understanding of the Court proceedings.

Another area needing be brought into the fray is the fact that the confessional statement was tendered and admitted without objection. The follow-up result of all these presentations is that it is too late in the day to challenge the document tendered without objection at the trial but now a matter to be brought in as a challenging factor on appeal. I refer to the case of Nwachukwu v The State (2002) 12 NWLR 508 at 542.

The circumstances which prevailed at the trial Court belie the posture of the appellant as accused person pleaded guilty to the charge on arraignment, the burden on the prosecution to prove the offence beyond reasonable doubt is lifted. Therefore, the practice of tendering the items recovered during investigation upon that plea of guilt is in fulfilment of the abundance of caution to support the plea of guilty and adds nothing to the requirement upon arraignment and plea of guilty. When there was no objection on any part of the proceedings at that point it is too late to do so later.

See Adeleke v State (2013) LPELR-20971 SC. It is now trite law that when an accused person pleads guilty he can be convicted solely on the plea of guilty as long as the offence is not punishable with death. See Nwachukwu v FRN (2007) 6 NWLR (pt.1029) 1; Nkie v FRN (2014) LPELR-22877. ​In reiteration, there is no duty on the prosecution to prove beyond reasonable doubt when the accused person pleads guilty.

Therefore, a plea of guilty is valid if it made in an unambiguous and unequivocal way and the same is received by the trial Court not disturbing itself under the misapprehension of what the law is. See Emma Amanchukwu v FRN (2009) 2 SCM, (2009) 8 NWLR (pt.144) 475; Adeyemi v The state (2013) 14 NWLR (pt.1373) 129. The difference in procedure comes in when capital offences are at play whereat an accused person shall not be convicted on a guilty plea. In such a case a “not guilty” plea is stipulated by law to be entered for the accused person.

In the instance, where the accused is not represented by counsel, the Court is expected to inquire more and be assured that the accused knows what he is doing. If he is represented by counsel, that indulgence is not granted. I rely on Omokuwajo v FRN (2013) LPELR-20184 (SC). In further clarification, I shall cite and quote some guidelines prescribed by the Appellate and Supreme Courts thus:- See Ibrahim v FRN (2016) LPELR-40059 (CA) as follows:- “The law therefore provides for conviction upon a guilty plea without any further formality.

A plea of guilty can earn a conviction when certain conditions are evident as held in the case of SUMANYA ISSAH TORRI V THE NATIONAL PARK SERVICE OF NIGERIA (2008) LPELR-8475 (CA) where the Court held: “The requirement of the law before there could be a conviction on a plea of guilty are that: i. The Court must be satisfied that the accused understands the charge against him; ii. The Court must be seized of the facts alleged by the prosecution as constituting the offence charged; iii. The Court must ask the accused if he admits all the facts alleged by the prosecution; iv.

The Court must be satisfied that the accused intends to admit the commission of the offence charged; v. The facts stated by the prosecution and admitted by the accused must be able to sustain the charge against the accused.

The apex Court on the consequences of a guilty plea held thus: “It is established law that after a plea of guilty by the accused before the Court exercising jurisdiction in respect of criminal offences, the Court must formally proceed to conviction without calling on the accuser to prove the commission of the offence by establishing the burden of proof by law.” see DONGTOE V CIVIL SERVICE COMMISSION, PLATEAU STATE (2001) 4 S.C. (Pt.II) 43. See also NKIE V.

FRN (2014) LPELR-22877 (SC). ​Generally, a plea of guilty that is unequivocal and a conscious act of the accused who has understood the charge explained can qualify for conviction without more. Clearly, the Court of trial convicted the appellant properly upon the guilty plea and the other factors mentioned were surplusage and cannot be used as foundation to set aside the judgment. With the trial Judge being satisfied that the plea of guilty was done consciously, the Judge being satisfied, was right to proceed to conviction.

The matter of his satisfaction, not being so recorded would not detract from the fact of the appropriateness of the procedure and that is not open to challenge the issue of satisfaction. Therefore, the burden of proof having been obviated by the plea of guilty as the Court below found and stated, there was no burden on the prosecution to prove the allegation. The case of Ochiba v State (2011) 17 NWLR (pta1277) 663 at 694 does not apply to the case in hand, the scenario existing thereby distinct from the one currently under discourse.

​In conclusion and the foregoing, this appeal definitely lacks merit and I do not hesitate in dismissing it. I affirm the decision of the Court of Appeal which in turn affirmed the judgment, conviction and sentence of the trial Court.

Appeal dismissed.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: I have had a preview of the judgment of my learned brother, Mary Ukaego Peter-Odili, JSC, just delivered. I am at one with His Lordship that the appeal is devoid of merit and should be dismissed.

This is a case in which the appellant was represented by counsel at his arraignment where he pleaded guilty to the one count charge of dealing in cannabis sativa (otherwise known as marijuana) contrary to and punishable under Section 11(c) of the National Drug Law Enforcement Agency (NDLEA) Act cap. N30 LFN 2004.

At the trial of the case, the prosecution tendered various exhibits, including the appellant’s confessional statement. His statement made in Pidgin English was admitted and marked Exhibit PD3A, while the English translation was admitted and marked Exhibit PD3B. There was no objection to the tendering of any of the exhibits including Exhibits PD3A and PD3B.

​In the appeal before us, it is the appellant’s contention that his arraignment was invalid because the record does not show that the charge was read and explained to him in Pidgin English, which is the language he understands and also that the statement Exhibit PD3A and its translation, Exhibit PD3B were not recorded in compliance with the provisions of Section 17(2) of the Administration of Criminal Justice Act (ACJA), 2015.

My learned brother has dealt extensively with these issues in the lead judgment. I shall add just a few comments by way of emphasis.

The record of the trial Court on the date of arraignment reads thus: “KALU: One count charge dated 28/11/14. I apply that the charge be read. COURT: Charge read and explained to the accused person. ACCUSED PERSON: I understand (the) charge, I plead guilty.”

As observed earlier, the appellant was represented by counsel. There is nothing on the record to show that he did not understand the charge read to him, Indeed, he stated clearly, “I understand the charge.” As rightly observed by the Court below, if the appellant did not understand the charge, it was his duty or the duty of his counsel to so inform the Court. See: Akeem Vs The State (2017) LPELR-42465(SC) @ 27-30 D-A; 33 C- F; Dibie vs The State ​(2007) LPELR-941 (SC) @ 7-8 C-A.

In any event, the Court is entitled to take judicial notice of the fact that Pidgin English is a specie of “proper” English freely and commonly used in Nigeria. A person who speaks Pidgin English usually understands “proper” English although he may not be able to communicate effectively in “proper” English, In a recent decision of this Court in Olanipekun vs The State (2016) LPELR-40440 (SC), the statement of the appellant was challenged on the ground that it was recorded in Pidgin English and the prosecution failed to tender the English translation.

His Lordship Akaahs, JSC at pages 8-9 D-A (Supra) stated thus: “It is erroneous for anyone to assume that people who communicate in Pidgin English do not understand proper or Queen’s English, especially in Nigeria. The use of Pidgin English allows for free expression without minding the grammar which is usually employed in the proper English. Consequently, a statement that was said to have been recorded in Pidgin does not require translation into proper English and any statement made in Pidgin English can be recorded in proper English.

I therefore agree with my learned brother, Peter-Odili, JSC, that the arraignment of the appellant in the circumstances of this case, was proper and in accordance with the law.

The challenge as to the admissibility of Exhibit PD3A and its translation, Exhibit PD3B, is a non-starter in my respectful view. It is very well settled that the appropriate time to raise an objection to the admissibility of a confessional statement on whatever ground, is during the trial at the stage when the prosecution seeks to tender it in evidence. See:Isong vs The State (2016) LPELR-40609 (SC) @ 28 D-F; Oseni vs The State (2012) LPELR-7833 (SC) @ 37-38 B-E; State vs Ibrahim (2019) LPELR-47548 (SC) @ 19 B–F.

The compliance or otherwise with Section 17(2) of the ACJA ought to have been raised at the time the statement was tendered in evidence. It is too late to raise the issue on appeal either before the lower Court or before this Court.

​Finally, the appellant, duly represented by counsel, having understood the charge read to him and pleaded guilty thereto, the only duty upon the Court was to proceed to conviction.

The procedure to be followed where an accused pleads guilty to a non-capital offence is set out in Section 356(2) of the ACJA as follows: “1356(2) Where the defendant pleads guilty and the Court is satisfied that he intends to admit the offence and shows no cause or sufficient cause why sentence should not be passed, the Court shall proceed to sentence.” The issue of proof of the charge beyond reasonable doubt no longer arises. See: Sunday Vs FRN (2018) LPELR-46357 (SC) @ 24 C-F; Omoju vs FRN (2008) 7 NWLR (Pt. 1085) 38; (2008) LPELR-2647 (SC) @ 18 E-F.

In Orji vs FRN (2019) LPELR-46534(SC) @ 6-8 F-A, His Lordship, Rhodes-Vivour, JSC held thus: “A plea of guilty in a criminal charge is made by an accused person who does not contest the charge. This arises where an accused person having committed a crime is simply saying by pleading guilty that he is responsible for the crime. A plea of guilty to a charge is conclusive evidence that the accused committed the offence. When an accused person is represented by counsel and the charge is read and explained to him to the satisfaction of the Court, the Court can proceed to convict forthwith.

There is no better evidence than a plea of guilty, It is even better than eyewitness… The appellant was convicted on his plea of guilty. Thereafter, any exhibits tendered are surplusage as the plea of guilty is conclusive proof that the accused person (the appellant) committed the offence.”

In light of my findings above and for the more detailed reasoning in the lead judgment, I hold that this appeal lacks merit. It is hereby dismissed. The judgment of the lower Court affirming the appellant’s conviction and sentence by the trial Court is hereby affirmed.

Appeal dismissed.

JOHN INYANG OKORO, J.S.C.: My learned brother, Mary Ukaego Peter-Odili, JSC obliged me a draft of the lead judgment just delivered and I am in complete agreement with the reasons and conclusion reached therein. The facts giving birth to the appeal has already been summarized in the lead judgment and I shall therefore avoid a repeat of exercise except to recapitulate a point therein as occasion may require in this judgment.

​The main issue in this appeal is whether in view of the Appellant’s confessional statement in exhibit PD3A translated in exhibit PD3B and his plea of guilt, the Court was right to convict him summarily.

Section 274(1) and (2) of the Administration of Criminal Justice Act, 2015 provides that:- “(1) Where a defendant pleads guilty to an offence with which he is charged, the Court shall:- (a) record his plea as nearly as possible; (b) invite the prosecution to state the fact of the case; and (c) enquire from the defendant whether his plea of guilty is to the fact as stated by the prosecution; or (2) Where the Court is satisfied that the defendant intended to admit the truth of all the essential elements of the offence for which he has pleaded guilty, the Court shall convict and sentence him or make such order as may be necessary, unless there shall appear sufficient reason to the contrary. (3) …” ​From the above provision, it is clear that where an accused person pleads guilty to a charge and the Court is satisfied that he indeed intended to admit all the essentials of the offence, the only option open to the Court is to convict him summarily, except where the offence is a capital offence where death is the penalty prescribed by law, then a plea of guilt would not be recorded.

See Olabode v State (2009) 11 NWLR (pt,1152) 254; Paulinus Tobi (Udo Abby) v The State (2001) 4 SC (pt. 11) 160. In the words of that provision, admitting the truth of all the essential elements of the offence, presupposes to me, that the accused understood the charge read to him and he intended to plead guilty.

Construing that language of the statute in Section 218 of the Criminal Procedure Act, which is in pari materia with the above provision, Niki Tobi, JSC (of blessed memory) in the case of Omoju v Federal Republic of Nigeria (2008) 7 NWLR (pt.1085) 38 (2008) All FWLR (pt,415) 1656 at page 1675-1676 stated as follows:- “I do not see any language in Section 218 suggesting that the Court must ask the Appellant if he admits all the essentials of the offence of which he pleads guilty.

All that the Section requires is that the Court must be satisfied that the accused person intended to admit the truth of all the essentials of the offence. In the language of the section, the exercise is within the mind of the Judge and does not go out to meet the accused, Whether the Judge is satisfied or not remains his subjective judgment. The moment the Judge is so satisfied he can convict and pass the appropriate sentence.”

In the instant case, in view of the Appellant’s confessional statement in exhibits PD3A and PD3B, the learned trial Judge must have been satisfied that the Appellant intended to admit the truth of all the essential elements of the offence.

Talking about confessional statement which has generally been referenced as the strongest evidence against an accused person, I have stated before in the case of Nkie v Federal Republic of Nigeria (2014) 13 NWLR (pt1424) 305 and I shall reiterate here that a confessional statement is so considered as the best evidence against an accused person because no man in his right senses will make admissions prejudicial to his interest and safety if the facts are not true and correct.

See also Section 28 of the Evidence Act, 2011, Oseni v State (2012) 5 NWLR (pt.1293) 351; Dibie v State (2007) 9 NWLR (pt.1038) page 30.

​The appellant’s contention in this appeal is that there were procedural irregularities before the conviction and sentencing in the sense that his lawyer was not present when he made exhibits PD3A and PD3B as prescribed by Section 17 of the Administration of Criminal Justice Act and also that he was not provided with an interpreter during his arraignment for which reasons the conviction should be upturned. The question then is did he object to the charge being read to him at the earliest opportunity?

The law is trite that once an accused person pleads to a charge before the Court without raising any objection, it presupposes that he understands the charge read to him and the plea is valid. Otherwise, he would have objected to the charge or at least indicated to the Court that he does not understand the charge, especially where he is not represented by counsel. See Okewu v Federal Republic of Nigeria (2012) 9 NWLR (pt,1305) page 327. ​In this case, the record of appeal shows that the Appellant was represented by counsel and he spoke English language during his arraignment.

Having failed to object before his plea, he cannot thereafter complain of any perceived irregularity which occurred before his plea. Again, his plea of guilt foreclosed the procedural step of going into trial. The only thing the Court had to do which it did was to convict and sentence him accordingly. The act of tendering exhibits by the respondent after the plea, was, in my opinion, an exercise in surplusage, to remove any doubt whatsoever in the mind of the trial Court to convict the Appellant.

In the final analysis, I hold that both the appellant’s confessional statement and his plea of guilt obliterates any form of procedural irregularity perceived to have occurred before his arraignment. The Court rightly convicted and sentenced him summarily upon his plea of guilt. This appeal is without merit and is hereby dismissed. The judgment of the Court below which upheld the conviction and sentence of the appellant is hereby affirmed.

Appeal dismissed.

​ABDU ABOKI, J.S.C.: I have had the opportunity of reading in draft, the lead judgment of my Learned Brother, MARY UKAEGO PETER-ODILI, JSC I am in complete agreement with his Lordship’s reasoning and conclusion, and do not wish to add anything more.

Accordingly, the appeal fails and it is hereby dismissed.

The conviction and sentence passed on the appellant is affirmed.

MOHAMMED MUSA SAULAWA, J.S.C.: I agree with the reasoning aptly expressed in the judgment just delivered by my learned brother, the Hon. Justice M. U. Petey Odili, JSC, that the instant appeal is lacking in merits. Unhesitatingly, I too hereby dismiss the appeal and affirm the decision of the Court of Appeal, coram Nimpar, Ogakwil and Obaseki-Adejumo, JJCA, delivered on 13/4/2018 in appeal No. CA/L/734c/2016. ​Appeal dismissed

Judgment

IBRAHIM MUHAMMED MUSA SAULAWA, J.S.C. (Delivering the Leading Judgment): The present appeal is against the judgment of the Court of Appeal, Akure Judicial Division delivered on December 6, 2018 in appeal no. CA/AW282C/2016.

By the judgment in question, the Court below coram Danjuma, Abdullahi and Mahmoud, JJCA, dismissed the Appellant’s appeal and affirmed the judgment of the Ondo State High Court, thereby convicting and sentencing the Appellant to death for the offences of conspiracy and armed robbery, contrary to Sections 1(2) (a) and 6(b) of the Robbery and Firearms (Special Provisions) Act, CAP. R 11, volume 14, Laws of the Federation of Nigeria, 2004.

BACKGROUND FACTS It was on January 15, 2014 when the Appellant was arraigned before the trial High Court of Ondo State upon a two count charge of conspiracy to commit armed robbery and armed robbery, to wit: COUNT 1 ARMED ROBBERY, Contrary to and punishable under Section 6(b) of the Robbery and Firearms (Special Provisions) Act, Cap R. 11, Vol. 14, Laws of the Federation of Nigeria, 2004. COUNT II ​ARMED ROBBERY: Contrary to and punishable under Section 1 (Special Provisions) Act, Cap R. 11 Vol. 14, Laws of the Federation of Nigeria, 2004.

Not unnaturally, the Appellant pleaded not guilty to both counts of the charge. The trial proceeded in earnest. At the conclusion of the said trial, the learned counsel addressed the Court, thereby resulting in adjourning the case for judgment.

On 30/4/2016, the trial Court delivered the vexed judgment to the conclusive effect: The concomitance of my conclusion is that the prosecution proved the charges of conspiracy to commit armed robbery and armed robbery leveled against the defendant is that it is incumbent on me to pronounce the defendant is guilty as charged and therefore hold that the defendant, Abdurahim Usman is guilty of conspiracy to commit armed robbery contrary to Section 6(b) of the Robbery and Firearms (Special provisions) Act and for armed robbery contrary to Section 1(2) (a) of the same Robbery and Firearms (special provisions) Act.

He is therefore convicted as charged. See pages 36-50 of the Record of Appeal.

On 20/7/2016, the Appellant filed a notice of appeal, thereby challenging the conviction thereof by the trial Court. On 06/12/2016, the Court below delivered its judgment to the conclusive effect: I find no reason in the circumstances to disturb the judgment of the trial Court. This appeal lacks merit and it fails. I accordingly dismiss it. Consequently, I affirm the judgment of the trial Court delivered on the 28th day of April, 2016. See pages .124-141 Record.

The Appellant’s notice of appeal, filed in the Court below on 18/12/2018, is predicated upon two grounds, thereby urging this Court to allow the appeal and in consequence thereof, grant the following two reliefs: (i) An order setting aside the judgment delivered by the lower Court on 6th December, 2018 and conviction of the Appellant. (ii) An order discharging and acquitting the Appellant of the offences of robbery and conspiracy to commit armed robbery. See pages 152 – 154 of the Record.

On February 24, when this appeal came up for hearing, the learned counsel had the opportunity of addressing the Court and adopting the argument contained in the respective briefs thereof, thereby warranting this Court to reserve Judgment to today.

The extant Appellant’s brief of argument was settled by OA Ojo Esq., on 10/7/2020, albeit deemed properly filed and served on 17/02/2021.

At pages 5 -6 of that brief, three issues have been couched for determination: (i) Whether the lower Court was right to ascribe probative value to Exhibits C and D and affirm the Appellant’s conviction on the basis that both were confessional statements, by which the Appellant admitted committing the offences charged (Ground 4 of Amended Notice of Appeal). (ii) whether the lower Court was right to regard the discrepancy in the date of the alleged commission of the offences and that of the Appellant’s arrest as a mere mistake. (Grounds 1, 2, 3 and 5 of the Amended Notice of Appeal) (iii) Whether there was any justification upon which the lower Court could infer that the Appellant was complicit and liable to conviction for the offences of armed robbery and conspiracy to commit armed robbery (Ground 6 of the Amended Notice of Appeal).

The issue 1 is canvassed at pages 6-9 of the brief, to the effect that the reasoning of the trial Court at page 47 of the record regarding Exhibits C & D is wrong. That it’s of no moment that the Appellant denied making the statement, or that it is a fact to be resolved by the Court. See R. VS. IGWE (1960) 5 FSC.

It was submitted, that the Appellant was resolute that he did not make Exhibits C & D.

The Court is urged to resolve issue 1 in favour of the Appellant, as reliance on 1D 1 and 1D2(Exhibits C& D) by the two Courts below, was legally wrong.

The issue no. 2 was canvassed upon at pages 9-14 of the brief. In a nutshell, it is submitted that it was not the responsibility of the two Courts below to propound or offer any justification for the discrepancy in the testimonies of the witnesses, as demonstrated by the Court below at page 137 of the record. Secondly, that the reasoning and conclusion of the Court below was founded on extraneous consideration. See ELIAS VS. OMO-BARE (1982) 13 NSCC 92, et al.

The Court is urged to so hold, and resolve the issue no. 2 in favour of the Appellant.

The issue no. 3 is argued at pages 14-16 of the brief, to the effect that the circumstances of this case do not, in any way, justify a conviction for the offences of armed robbery, let alone conspiracy to commit armed robbery. Exhibits 1D1 and 1D2 were clearly inadmissible to convict the Appellant; there was no positive identification of the Appellant as the alleged offender. Therefore, the prosecution has failed to prove its case beyond reasonable doubt against the Appellant.

The Court is urged to so hold, and resolve the issue 3 in favour of the Appellant.

On the whole, the Court is urged to allow the appeal.

On the other hand, the Respondent’s brief was settled by Shehu Wada Abdullahi Esq. on 19/11/2020, albeit deemed properly filed on 17/02/2021. It spans a total of 14 pages. At page 4 thereof, a sole issue has been couched for determination: 3.1 Whether there is any exceptional reason to set aside the decision of the trial  Court and the concurrent decision of the lower Court of Appeal on the conviction and sentencing of the Appellant.

It is submitted in the main, that it is clearly shown on the records, that there are no good reasons for this Court to disturb the concurrent decision of the lower Court. See IDAM VS. FRN (2020) LPELR-49564 (SC) @ 10 paragraphs C-E, KURE VS. COP (2020) LPELR-49378(SC) @ 29-31 paragraphs F-A.

Further submitted, that other than Exhibits C and D, the quantum of the evidence before the trial Court was substantial to sustain the conviction of the Appellant. And that the prosecution through the PWI, PW2, PW3 and PW4 and Exhibits A and A1 established that the Appellant was the offender.

The Court is thus urged upon to hold, that the trial Court and the Court below were right to hold that the Appellant was guilty of conspiracy as charged.

Conclusively, the Court is urged to dismiss the appeal and affirm the concurrent decision of the Court below convicting and sentencing the Appellant.

Having accorded an ample regard upon the nature and circumstances surrounding the appeal, the submissions of the learned counsel contained in their respective briefs of argument vis-avis the record of appeal, as a whole, I am appreciative of the fact that the Appellant’s three issues are very much germaine to the notice of appeal. I accordingly adopt them, mutatis mutandis, for the determination of the appeal, anon.

ISSUE NO. 1 The first issue, as copiously alluded, hereto above, raises the question of whether the Court below was right to ascribe probative value to Exhibits C and D, thereby affirming the Appellant’s conviction on the basis that both exhibits were confessional statements by which the Appellant admitted committing the offences as charged. The issue is distilled from ground 4 of the Amended Notice of Appeal.

As alluded heretofore, the Appellant’s grouse under issue I, in the main, is to effect that Exhibits C and D (Appellant’s confessional statements) were only tendered for identification purpose and marked as 1D1 and 1D2, respectively.

Indeed, the circumstances surrounding the tendering of the Appellant’s two confessional statements in question and the admission thereof as Exhibits E and D, are not far-fetched. It is obvious on the record, that the Appellant was arraigned before the trial Court on 15/01/2014. Consequent upon the plea of not guilty thereof, the trial commenced in earnest, without much ado. Two witnesses called by the prosecution testified as PW 1 (Fatima Yusuf) and PW 2 (Isiaka Jammiu).

Both witnesses were not cross-examined by the prosecution. ​ However, the third prosecution witness (PW3) Police, Corporal Amas Dunbaiji Nimighan (erroneously tagged “PW4”) did not have a ‘smooth sail’ like the PW 1 and PW2 who testified before him.

In the course of his examination-in-Chief, Corporal Nimighan testified that he was made the IPO in the case. He said he recorded what the Defendant (Appellant) told him. The Appellant signed and he too counter-signed that statement.

Consequent upon the identification of the Appellant’s statement in-question, the prosecution counsel, Mrs. Adeyemi Tuki, sought to tender it. However, the Defence counsel vehemently objected thus: Mr. Abdulkadir: We are objecting on the ground that the statement was not given voluntarily. The following scenario then registered itself: Court:- A trial-within-trial will be conducted. Mrs. Adeyemi- Tuki:- No. objection. Court:- The trial-within-trial is adjourned to 27th May, 2014.

However, from 16/4/2014 when the case was adjourned for trial-within-trial, it was only on 18/02/2016 that it came up for TWT. On the said date, the PW 1 (Amos Dunbaiju Nimighani, now a Police sergeant) testified but was not cross-examined by the Defence counsel, Bamisele Esq.

Contrariwise, the Appellant equally testified as DW1. However, in the course of his testimony, under the T W T, the Appellant (DW1) stated: PW1 and two other Police officers started to beat me. I was wounded. I was then taken to the statement room. PW 1 said I should sign a statement I asked him to read to me. He beat me. I asked him that I should be allowed to write my statement as I did at Owo. They refused. I later signed the document after the beating. The document shown to me was not the one I was forced to sign did not sign the document.

It was consequent upon the Appellant’s evidence under the TWT aforementioned, that the trial Court made a u-turn and thereby held: “Court – The stand taken by the defendant when he said the statement shown to him was not made by him and that he did not sign it makes the trial-within-trial untenable, although he claimed initially that he was forced to make the statement which necessitated the trial-within-trial. His change of mind which he has the right to do has made the trial-within-trial untenable. The question whether he made the statement and signed it is a question of fact.

This will be determined at the judgment stage. The document meanwhile should be marked 1D2. It will be marked as exhibit or rejected as the case may be, later while writing the judgment. The main trial will now resume.” See pages 14-16 of the Record.

The trial Court accordingly proceeded with the trial, and at the conclusion of which delivered the vexed judgment on the 28/4/2016 in-question. Most specifically, at page 47 of the Record the trial Court held, inter alia: “PW3 said that he took the statement of the defendant which he signed and PW3 then counter-signed. The statement was tendered as an exhibit. The defendant objected on the ground that he did not make any statement to the defendant (sic). I then said that the document should be marked 1DI and that I will determine at the judgment stage whether he made the statement or not.

I think I should have admitted the document straight because on the authority, the defendant is merely claiming that he knew nothing about the document which is a question of fact to be resolved by the Court. See R. V. IGWE (1960) 5 ESC. 55; THE STATE V. SALAWU (2011) 8NWLR (pt. 1279) 580 @ 625 B-D. In view of this, the document is to be marked Exhibit C. The same scenario played out when the statement of the defendant which PW4 claimed to have recorded from him was tendered.

He claimed not to have signed the document which was brought to Court. … I should have straight away marked the document as an exhibit in the circumstances but unfortunately I said it should be marked ID2. The document marked ID2 should be marked Exhibit D.” ​ On its part, the Court below in the judgment thereof (pages 124-150, especially @ 144 of the printed record) held: “When Exhibits C&D were being sought to be tendered, the appellant only said he did not make it He did not make any direct allegation of lack of voluntariness that he was tortured, threatened, induced etc.

Yet the trial judge conducted a trial within trial (another surplusage) and admitted the statements in evidence as Exhibits C and D. The learned counsel made heavy weather about the fact the appellant retracted his confessional, statement. A confessional statement does not become inadmissible because the accused retracted the confession on Oath. Nor can it be regarded as unreliable just because of a retraction. The proper consideration always is that the denial or retraction is taken into consideration in deciding the weight to be attached to it. See DIBIE VS.

STATE (2007) 9 NWLR (pt. 1038, 30.” ​ The law is well settled, beyond per adventure, that where (as in the instant case) the defendant makes an out right denial of the statement sought to be tendered in evidence by the prosecution, the denial (objection) is tantamount to a retraction of the statement. Thus, such a statement is admissible and reliable without the need of resorting to a trial-within-trial, as its voluntariness is not in issue. See IBEME VS. THE STATE (2013) 10 NWLR (pt. 1362) 333.

In the circumstances, the first issue ought to be, and it is hereby resolved against the Appellant.

ISSUE NO. 2 The second issue raises the question of whether or not the Court below was right to regard the discrepancy in the date of the alleged commission of the offences, and that of the Appellant’s arrest as a mere mistake. The second issue is distilled from grounds 1,2,3 and 5 of the Amended Notice of Appeal.

At page 46 of the record, the trial Court made some findings, thereby alluding to the discrepancy in the date the offences were allegedly committed and on which the Appellant was supposedly arrested. Allegedly, the trial Court dismissed the discrepancy as mere mistake. According to the trial Court: There is no doubt that the discrepancy is nothing but a mistake and should not affect the case of the prosecution in any significant way. PW1, PW2 and PW3 all talked about one robbery in which the defendant was a participant.

It is not possible for the defendant to be in the Police station at 3am of 18th June, 2013 when PW1 and PW3 had not caught him and when he was not caught until I am on the 19th June, 2013.

On the part thereof, the Court below made a finding on the issue of the discrepancy in question at page 137 of the record: “I am unable to see any contradiction in the evidences of PW1 and PW2 as to the date or in any other particular… If one looks closely at the two dates, there is technically, really no discrepancy. From the testimony of PW1 and PW2, this incident happened around 1.3am on the 19th of June. This is English culture that any past 12 midnight is the next day. In most African cultures that would still be explained as the night of the 18th.

Therefore 3.20am of 18th is actually the same thing as the early hours of the 19th since it is past midnight… I do not agree with the appellant’s learned counsel that it was wrong for the trial judge to explain this minor discrepancy in the way he did, that perhaps PW3 made a mistake.

This is especially is so insignificant that it does not affect the prosecution’s case or indeed the opinion of the trial judge.” ​ In my considered view, by virtue of the circumstances surrounding the case vis-a-vis the evidence on record, the Court below was justified and correct in upholding the very apt findings of the trial Court in regards to the discrepancy as to the date on which the offences were allegedly Committed, and the date on which the Appellant was arrested.

Indeed, it is evident on the face of the record, that the Appellant was arrested at the scene of the crime. Both the PW 1 and PW2 had the misfortune of being victims of the armed robbery in-question. They were both present at the scene of crime at the very material time the Appellant was apprehended. Neither the PW1 nor the PW2 was shaken when giving evidence about the identity of the Appellant as the very culprit apprehended at the scene of crime, and date the offence was committed.

The PW1, most especially, testified under oath at the trial Court on 15/01/2014, inter alia, thus: “I am Fatima Yusuf. I live at 11, Ojo Ikoko, Owo. I am a trader. I know the defendant. I remember 19th June, 2013. I live in a room and parlour at the address stated above. At night while I was asleep I heard a voice that said lie down lie down. This was around 1.30am. I left the room where I was. My son Jamiu slept in the parlour where I came to the parlour I saw three men on my son. There was electricity that night. The defendant was one of the three men that was on my son.

He was the one that pointed a gun at my son, Jamiu. I told them to calm down as I had money to give them. I told them not to hurt my son. The two of the robbers came with me to the room. The defendant was still with my son. The two had face mask on. I did not see their face(sic).”

In continuation of the testimony thereof, the PW1 stated that the Appellant was actually apprehended at the scene of crime: “As the commotion was going on in my apartment my neighbour who was living at the upstairs of my apartment heard what was going on. She raised alarm that thieves were in my apartment. This caused the neighbours to move towards my apartment. The two who were with me were the first to leave my apartment. The defendant backed as and then pointed his gun toward the direction where the neighbours were coming from. I summoned courage and I grabbed the defendant from the back.

I held unto him until help came and we were able to suppress the defendant. The defendant was bound with rope and the Police was called.”

Under cross-examination by the defence counsel, the PW 1 had this, inter alia, to say: “I did not know the defendant before the day I caught him in my house…when I grabbed the defendant and we both fell down, I saw that the defendant had hand glove and there was a long scarf beside him. I would not know whether he used the scarf as a disguise during the robbery.” See pages 8-9 of the Record.

The PW2 under Oath equally testified narrating his direct encounter with the Appellant, thereby corroborating the evidence of the PW 1 regarding the date of the commission of the armed robbery and the resultant apprehension of the Appellant at the scene of the crime. According to the PW 2: “I know the defendant. I remember 19th June, 2013 around 1.30am. I was sleeping in my mother’s parlour when the door to the apartment was broken. I look up and I saw three men with me. They said they will kill me, the defendant pointed gun at me.”

The PW3 also testified corroborating the evidence of both the PW1 and PW2 regarding the Appellant’s arrest at the scene of crime on 19th June, 2013.

The Court below in the vexed judgment resolved the alleged discrepancy regarding the date on which the armed robbery was commissioned, and when the Appellant was apprehended at the scene of crime on 1-9/6/2013, in favour of the prosecution.

I am unable to appreciate, let alone uphold the Appellant’s preposterous submission, to the effect that the inconsistencies and discrepancies highlighted cast doubt in the prosecution’s case, that the Appellant was the one arrested at the scene of crime on 19/6/2013 and time (1.30am) in-question.

In the circumstances, the second issue is hereby resolved against the Appellant.

ISSUE NO. 3 The third issue raises the question of whether there was any justification upon which the Court below could infer that the Appellant was complicit and liable to conviction for the offences of armed robbery and conspiracy to commit armed robbery.

In the instant case, the evidence of the PW1 and PW2, who were the unfortunate victims and indeed eye witnesses of the said armed robbery, was direct and unequivocal that the Appellant in company of other persons (still at large) broke into their apartment and robbed them on 19/06/2013. The trial Court in its judgment found as a matter of fact that: “The evidence before the Court is that the defendant in company of two others went to the house of PW1 in the early hours of 18th June, 2013, and they robbed PW1. The fact that three of them went to the place to rob is evident of conspiracy.

They must have agreed to act the way they acted. The agreement is conspiratorial. The defendant being part of it is guilty of conspiracy as charged.”

On its part, the Court below at page 141 of the record upheld the foregoing findings of the trial Court, thus: “I am in agreement with the trial judge that he properly made his finding from the evidence before the Court which supports his inference of conspiracy. I agree with the evidence of PW1 and PW2 who were eye witnesses, who caught and held the appellant down until the Police patrol team which was summoned armed and took him away in such a quality that without doubt in the words of Achike as quoted by Kekere-Ekun, JSC in the case of YAKUBU V.

STATE (2014) 8 NWLR (pt. 1408, III: Irresistibly compels the Court to make an inference s to the guilt of the accused.”

I think, I cannot agree more with the foregoing concurrent finding of the Court below, which said finding is cogent, unassailable and duly supported by the circumstances surrounding the case vis-vis-vis the evidence an record.

In the circumstances, the third issue equally ought to be, and same is hereby resolved against the Appellant. ​ My Lords, it’s indeed settled, that if a Court came to a decision which no reasonable Court or tribunal applying its mind to proper considerations and giving itself proper directions can come, then an appeal Court having jurisdictional competence to entertain an appeal from such a decision only on a point of law, would reverse such a decision.

The reason being that, the position is exactly the same as if the Court had to come to a decision of fact that no evidence whatsoever supports, which must be considered erroneous in law, and equally perverse. See NAFIU RABIU VS. KANO STATE (1980) LPELR-2936 (SC) per Idigbe, JSC @ 57 paragraphs A-E. In the case of BRACEGIRDLE VS. OXLEY (1947) 1 ALLER 126 (a decision of the Court of 5 justices, cited with approval by this in NAFIU RABIU VS.

KANO STATE, supra), it was aptly held: “In this Court, we only sit to review the justices’ decision on points of law, being bound by the fact which they find, provided always that there is evidence on which the justices can come to the conclusions of fact at which they arrive.”

Hence, having effectively resolved all the three issues raised by the Appellant against him, there is no gain-saying the fact that the instant appeal fails, and it is hereby dismissed by me.

The concurrent judgment of the Court of Appeal, Akure Judicial Division, delivered on 06/12/2018, in appeal no. CA/AW282C/2016, is hereby affirmed by me.

MARY UKAEGO PETER-ODILI, J.S.C.: I agree with the judgment just delivered by my learned brother, Ibrahim Mohammed Musa Saulawa JSC and to register the support in the reasonings from which the decision emanated, I shall make some remarks.

This appeal is against the decision of the Court of Appeal, Akure Division or Court below or lower Court, Coram: Mohammed A. Danjuma, Ridwan M. Abdullahi and Patricia Ajuma Mahmoud JJCA The judgment which was delivered on 6th December, 2018, affirmed the appellant’s conviction by the High Court of Ondo State, per Kolawole J in a decision made on 28th April, 2016.

BACKGROUND FACTS The appellant was arraigned on a two count charge of armed robbery and conspiracy to commit armed robbery as follows: COUNT 1 STATEMENT OF OFFENCE CONSPIRACY TO COMMIT ARMED ROBBERY, contrary to, and punishable under Section 6(b) of the Robbery and Firearms (Special Provisions) Act, Cap R. 11, vol.14, Laws of the Federation of Nigeria 2004. PARTICULARS OF OFFENCE Abdulrahim Usman (M) and others still a large, on the 19th day of June, 2013 at about 01;30 am Division, did conspire with others at large to commit felony to wit: Armed Robbery.

COUNT II STATEMENT OF OFFENCE ARMED ROBBERY: Contrary to and punishable under Section 1 (2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap R.II, Vol. 14, Laws of the Federation of Nigerian PARTICULARS OF OFFENCE Abdufrahim Usman (M) and others still at large, on the 19th day of June, 2013 at Owo in the Akure Judicial Division, while armed with guns and other dangerous weapons broke into the house of one Fatima Yusuf (F) and robbed her of money (N60,000.00) and other valuables.

The prosecution called four witnesses while the Appellant testified in his own defence. Exhibits A and A1 are the locally made riffles used in commission of the offence. Exhibit B are specimen signatures obtained from the appellant during trial, when the appellant denied making the two statements admitted for identification purpose as ID1 and ID2. Both statements were said to be the Appellant’s confessional statements.

The prosecution’s case was that the appellant was one of three armed robbers that attacked PW1 and PW2 at gunpoint on 19th June, 2013 at about 1 a.m. The other two are said to be at large. PW3 and PW4 were the policemen that investigated the crime and obtained statements from the appellant. Neither of these witnesses arrested the appellant. One Supol Suleinnan, who was not called to testify, was said to have arrested at the appellant police station in Owo.

PW3 testified that he was summoned to the Owo Police Station in the early hours of 18th June, 2013 and that it was then that he met and took the appellant’s first statement (admitted as ID1).

The case was later transferred to the Special Anti-robbery Squad (SARS) in Akure for investigation. PW4 stated that he obtained a second statement (admitted as ID2) from the Appellant upon transfer of the case file to SARS, Both PW3 and PW4 stated that ID1 and ID2 are voluntary confessions by the appellant. ​ The appellant denied complicity in either of the offences charged. He testified that as of 15th June, 2019, he was already in police custody on account of an unrelated matter for which he asserted he was being detained. He denied making both statements credited to him.

He initially challenged the voluntariness of ID2. That then resulted in a trial-within-trial, during which he denied making the statement. The trial judge then terminated the trial-within-trial.

Both sides closed their respective cases and addressed the trial judge which convicted the appellant as charged and sentenced him to death.

On the 24/2/2022, date of hearing, learned counsel for the appellant, Oluwaseyilayo Ojo adopted the brief of argument filed on 10/7/2020 and deemed filed on 17/2/2021.

He distilled three issues for determination, viz: (i) Whether the lower Court was right to ascribe probative value to Exhibits C and D and affirm the appellant’s conviction on the basis that both were confessional statements, by which the appellant arrest as a mere mistake, (Grounds 4 of the Amended Notice of Appeal) (ii) Whether the lower Court was right to regard the discrepancy in the date of the alleged commission of the offences and that of the Appellant’s arrest as a mere mistake. (Grounds and 5 of the Amended Notice of Appeal), (iii) Whether there was any justification upon which the lower Court could infer that the appellant was complicit and liable to conviction for the offences of armed robbery and conspiracy to commit armed robbery (Ground 6 of the Amended Notice of Appeal).<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Learned counsel for the respondent, Shehu Wada Abdullahi Esq., adopted the brief of argument filed on 19/11/2020 and deemed filed on 17/2/2021. He formulated a single issue as follows:- Whether there is any exceptional reason to set aside the decision of the trial Court and the concurrent decision of the lower Court of Appeal on the conviction and sentencing of the appellant?

The sole issue of the respondent covers all questions regarding the determination of the appeal and I shall use it.

SOLE ISSUE Whether there is any exceptional reason to set aside the decision of the trial Court and the concurrent decision of the lower Court on the conviction and sentencing of the appellant.

Learned counsel for the appellant contended that the trial Court and the Court below were wrong to have held that it was of no moment that the appellant denied making the statement and so the trial Court relying on that statement to make its decision was faulty. That R. V Igwe (1960) 5 FSC 55 and The State v Salawu (2011) 8 NWLR (pt.12 79) 580 were misapplied. ​ That there were discrepancies in the evidence of prosecution witnesses which should vitiate the conviction which conviction was based on a conjecture. He cited Elias v Omo-Bare (1982) 13 NSCC 92.

Learned counsel for the appellant submitted that the offences of armed robbery and conspiracy to commit armed robbery remained not proven. He cited Osetola v State (2012) 17 NWLR (pt.1329) 251 etc.

That the circumstances of this case justify this Court’s interference with the concurrent findings and a reversal of the same. He relied on Audu v State (2016) 1 NWLR (pt. 1494) 557 etc.

Learned counsel for the respondent contended that there is no good reason for this Court to interfere with the concurrent findings of fact of the two Courts below. He cited Idam v FRN (2020) LPELR-49564 (SC) at 10 etc.

That the prosecution established the offences beyond reasonable doubt and the PW1 and PW2 – the witnesses identified the appellant as one of those who committed the offence.

It was submitted for the respondent that the confessional statements of the appellant, Exhibits C and D were properly admitted. See IBEME V. STATE (2013) 10 NWLR (PT.1362) 333 where it was held that: “where there is an outright denial of the statement sought to be tendered by the prosecution, it amounts to retraction of the statement and such a statement is otherwise admissible and reliable without the necessity of conducting a trial as its voluntariness is not in issue.”

The point has to be made that if the appellant’s objection at the first instance is on the ground that he did not make the statement, Exhibits C and D would have outrightly been admitted. The trial Court rightly found at page 47 lines 12-17 of the record when he held that: “The defendant objected on the ground that he did not make any statement to the defendant (sic-PW3), I then said that the document should be marked ID1 and that I will determine at judgment stage whether he made the statement or not.

I think I should have admitted the document straightaway because on the authority, the defendant is merely claiming that he knew nothing about the document which is a question of fact to be resolved by the Court. See R v. IGWE (1960) 5 F.S.C 55, THE STATE V. SALAWU (2011) 8 NWLR (Pt. 1279) 580 at 625 B-D. In view of this, the document is to be marked Exhibit C.”

The Court below of course saw no reason in the circumstance why Exhibits C and D should not have been admitted as evidence and so Ridwan Abdullahi JCA in the appellate Court’s judgment stated as follows: “In the instant case, the appellant only said he did not make Exhibit C and D when they were sought to be tendered. Therefore, the mini trial conducted by the learned trial judge is a surplus.”

Significantly other than the confessional statements of the appellant (Exhibits C and D), the quantum of evidence before the trial Court is substantial to sustain the conviction of the appellant. The ingredients of the offence were proved beyond reasonable doubt by the prosecution. Also, the prosecution through PW1 and PW2- who were eye witnesses identified the appellant as one of those who committed the offence. PW3 and PW4 also established that the appellant was the offender and tendered Exhibits A and A1 (Gun and four live cartriges) which were recovered from the appellant.

The appellant did not object to the admissibility of Exhibits A and A1.

Patricia Mahmoud, JCA with clarity stated in the lead judgment when he held at page 146 of the printed record that: “Even if, like urged by the learned counsel to the appellant, I expunge Exhibits C and D, the confessional statements of the appellant (which has not been justified), there is ample credible evidence left to sustain his conviction. I find no reason in the circumstances to disturb the judgment of the trial Court. This appeal lacks merit and it fails. I accordingly dismiss it. Consequently, I affirm the judgment of the trial Court delivered on 2Sh day of April, 2016.”

For certain, the trial Court was right to admit the confessional statement of the appellant as Exhibits C and D and the Court below correct to go along with that well founded position.

On the other grouse of the appellant over whether the discrepancy on the date of the commission of the offence and the date of arrest was a mistake and therefore fatal to the case of the prosecution. I shall answer that poser by taking a few steps back into the facts leading to where we are now. ​ The appellant was arrested at the scene of the crime. PW1 and PW2 were victims and were at the scene of the crime and they successfully identified the appellant as the apprehended culprit, were unshaken about the date of offence and the date of arrest.

In her testimony, PW1 stated that: “I remember 19th June, 2013, I live in a room and parlour at the address stated above. At night while I was asleep I heard a voice that said lie down! Lie down!. This was around 1.30am. I left the room where I was. My son Jamiu slept in the parlour when I came to the parlour I saw three men on my son. There was electricity that night. The defendant was one of the three men that was on my son.”

While establishing that the defendant was arrested after the robbery on the same date, PW1 equally stated in lines 8-9 at page 9 of the record that: “the defendant was bound with rope and the police was called The police later came and he was taken to the police station at Ijebu-Owo.”

PW2 who had a direct encounter with the appellant corroborated the date of commission of the offence and arrest of the appellant stated that: “I know the defendant I remember 19th June, 2013 around 1.30am. I was sleeping in my mother’s parlour when the door to the apartment was broken, I woke up and I saw three men with me.

They said they will kill me, the defendant pointed a gun at me.” PW3 also established the date of the appellant’s arrest in his testimony contained at page 11 of the record when he stated that: “I was in my office on 19th June, 2013 when the case of armed robbery was transferred from ‘A’ division, Owo to our office.”

Of note is that the information/Charge (contained at page 2 of the record) was not at variance with the date of commission of the offence and arrest as stated by PW1 and PW2 who were victims and eye witnesses. It reads thus: “Abdulrahim Usman (M) and others still at large, on the 19th day of June, 2013, at Owo in the Akure Judicial Division…”

It is evidently clear that the date of arrest stated by PW3 is a mere mistake which is not detrimental to the prosecution’s case as PW3 is not an eye witness to the commission of the crime by the appellant or his arrest. See ASUQUO V STATE (2016) LPELR-40597.

There is no wonder that the lower Court examining the importance of PW3″s testimony and resolved that the discrepancy was minor and insignificant and found in favour of the respondent. The Court below per Mahmud JCA rightly held thus: “I am unable to see any contradiction in the evidence of PW1 and PW2 as to the date or in any other particular. They were the victims of the said robbery. If there was a major discrepancy in the evidence of the two, it might have been an issue. But there was none. PW3 was not an eye witness.

He was called by his superior to attend to the appellant who had been arrested and taken to the police station on allegation of robbery. If one looks closely at the two dates, there is technically, really no discrepancy. From the testimony of PW1 and PW2, this incident happened around 1.30am on the 19th June. This is English culture that anything past 12 midnight is the next day. In most African cultures that would stiff be explained as the night of the 18th. Therefore 3.00am of 18th is actually the same thing as the early hours of 19th since it is past midnight.

The only difference here is that perhaps PW3 belongs to the African culture, so that until the day breaks, it is stiff the day before. I do not agree with the appellant’s counsel that it was wrong for the trial judge to explain this minor discrepancy in the time the way he did, that perhaps PW3 made a mistake. This is especially so as the discrepancy is so insignificant that it does not affect the prosecution’s case or indeed the opinion of the judge.”

There is no faulting the two Courts below on the stand on the discrepancy as to the date of the commission of the offence and arrest of the appellant was a genuine mistake by the PW3.

On whether appellant was complicit and liable for the offences of armed robbery, I would not hesitate in reiterating that the offence of conspiracy is embedded in the agreement or plot between the parties. It is normally deduced from the act of the parties which is focused towards the realization of the common or mutual criminal purpose. Usually, the inference is drawn by the Court from the established evidence in the consideration of the offence of conspiracy. I place reliance on the cases of Njovens & Ors v State (1993) 5 SC 17; State v Gbahabo & Ors (2019) LPELR-48 117 (SC).

In line with the guides on how the offence of conspiracy is said to have been established, in this instance, the testimonies of PW1 and PW2 who are victims and eye witnesses were direct and unequivocal that the appellant in company of two other persons robbed them on the said date of 19th June, 2013. It was from what was before him that the learned trial judge found that there must have been an agreement by the appellant and the others to act the way they did by going to the house of PW1 in the early hours of the day of incident and robbed PW1.

He stated further that the agreement was conspiratory and since the appellant was part of it, he was guilty of the conspiracy as charged.

The appellate Court had no difficulty in affirming what the trial Court did when the Court below held as follows: “I am in agreement with the trial judge that he properly made his finding from the evidence before the Court which supports his inference of conspiracy.

I agree with the evidence of PW1 and PW2 who were eye witnesses, who caught and held the appellant down until the police patrol team which was summoned arrived and took him away is such a quality that without doubt in the words of Achike JSC as quoted by Kekere-Ekun, JSC in the case of Yakubu V STATE (2014)8 NWLR PT 1408, 111: “irresistibly compels the Court to make an inference as to the guilt of the accused.”

The appellant is expected to show exceptional reasons why this Court should interfere with the concurrent decision of the trial Court and the lower Court of Appeal. See UGBOJI V. STATE (2017) LPELR-43427 (SC); this, the appellant has failed to do. The prosecution successfully proved the ingredients of the offences of armed robber and conspiracy to commit armed robbery. PW1 and PW2 undoubtedly and positively identified the appellant as the alleged offender.

In conclusion and from the foregoing, the appellant certainly has no fighting chance to sway the hand of the Court in his favour as the appeal lacks merit.

I too dismiss the appeal and abide by the consequential orders made. Appeal dismissed.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: I have had the privilege of reading in draft, the judgment of my learned brother, Ibrahim Mohammed Musa Saulawa, JSC, just delivered. I agree with the reasoning and conclusion that the appeal lacks merit and deserves to be dismissed.

The appellant has made heavy weather of the fact that the learned trial Judge erred in relying on his extra-judicial statements, Exhibits C and D, in convicting him. It was argued that the statements were merely admitted for identification purposes during the trial-within-trial and marked ID1 and ID2 respectively. As elaborately explained in the lead judgment, at the time the statements were sought to be admitted in evidence, there was an initial objection on the ground that the statements were not made voluntarily but were the product of torture.

It was on this basis that a TWT was held to ascertain whether the allegation of involuntariness was true.

However, during his testimony, the appellant made an about-face and stated that the statements sought to be tendered were not the statements he was forced to make. He completely denied any knowledge of the statements. At that stage, the learned trial Judge held that having denied making the statements at all, a TWT was not the appropriate procedure to adopt. The statements were marked ID1 and ID2 and His Lordship terminated the TWT and stated that the decision as to whether the statements were made by the appellant or not would be deferred to the judgment stage.

Where an accused person denies making the statement sought to be tendered, the proper procedure the Court should adopt is to admit the statements as exhibits and determine their evidential value at the judgment stage after all the evidence would have been before the Court. The determination of whether the accused did in fact make the statement is an issue of fact to be established after consideration of all the surrounding circumstances.

See Abu Mohammed vs The State (2020) LPELR – 52451 (SC) @ 14 – 16 F- F, Dairo vs The State (2017) 9- 12 SC 119; (2017) LPELR – 43724 (SC) @ 13 – 14 D-A and Owie vs State (1985) NWLR (Pt. 3) 470.

As rightly observed by the learned trial Judge, he ought to have admitted the statements in evidence once the appellant changed his tune and denied making them. However, the law is trite that it is not every mistake made by a Judge that would result in a reversal of the decision, unless the party complaining can show that there has been a miscarriage of justice or that if the error had not occurred the judgment would have been in his favour. See Kraus Thompson Org. Ltd.

Vs University of Calabar (2004) 4 SC (Pt. 1) 65; (2004) LPELR- 1715(SC) @ 18 – 19 A – F, Garuba vs Omokhodion (2011) LPELR – 1309 (SC) @ 55 B – C, Faleye vs Dada (2016) LPELR – 40297 (SC) @ 27 C- E.

In the instant case, there was credible, unchallenged evidence of PW1 and PW2, affirmed by PW3, that the appellant was actually arrested at the scene of crime with a firearm and 4 cartridges and handed over to the Police. PW1 and PW2 were the victims of the crime. The trial Court found them to be credible witnesses. The Court below was not persuaded to hold otherwise.

It was PW1’s quick thinking in seizing the appellant from behind when he was pointing his gun in the direction of neighbours who were approaching the scene to rescue them, that led to his arrest, as she held onto him until help came.

Clearly, the argument of learned counsel for the appellant regarding alleged discrepancies as to the time of the commission of the offence in the evidence of PW1 and PW2 on the one hand and PW3 on the other, could not put a dent in the solid case put forward by the prosecution.

The concurrent findings of the two lower Courts are well situated on the cogent and credible evidence on record.

The appellant has not advanced any special circumstances to warrant interference by this Court.

​The appeal lacks merit and is hereby dismissed. The judgment of the lower Court is affirmed.

ABDU ABOKI, J.S.C.: I have had the benefit of reading in draft, the lead judgment written by my learned brother, IBRAHIM MOHAMMED MUSA SAULAWA, just delivered. I agree entirely with the reasoning and conclusion that the appeal is devoid of any merit and should be dismissed. His Lordship had thoroughly and painstakingly dealt with all the issues canvassed by the learned counsel to the parties, and I adopt them as mine, I shall make some few comments by way of emphasis.

By an information dated 11th November, 2013, the Appellant was charged and arraigned at the trial High Court of Ondo State, on a two count charge of conspiracy and armed robbery, contrary to and punishable under Section 6(b) and 1(2) (a) respectively of the Robbery and Firearms (Special Provisions) Act, Cap RI 1, Vol. 14, Laws of the Federation of Nigeria, 2004.

​The Prosecution’s case was that the Appellant Abdurahim Usman, along with two others still at large robbed one Fatima Yusuf (F) at her house in Owo, in Akure Judicial Division of the sum of Sixty Thousand Naira (N60, 000.00) and other valuables.

In proof of its case, the Prosecution called three witnesses and tendered five exhibits. The Appellant in his defence testified for himself and called no other witness.

At the conclusion of trial, the learned trial judge found the Appellant guilty as charged and sentenced him to death by hanging.

Dissatisfied with this judgment, the Appellant appealed to the Court below. The Court below dismissed the appeal and affirmed the decision of the trial Court.

Still aggrieved, the Appellant lodged an appeal at the Registry of this Court. The amended Notice of Appeal, deemed filed on the 17th February, 2021, contains six grounds of appeal.

Learned Counsel for the Appellant distilled three issues for determination. They are: 1. Whether the lower Court was right to ascribe probative value to Exhibits C and D and affirm the Appellant’s conviction, on the basis that both were confessional statements, by which the Appellant admitted committing the offences charged? 2. Whether the lower Court was right to regard the discrepancy in the date of the alleged commission of the offences; and that of the Appellant’s arrest, as a mere mistake? 3.

Whether there was any justification upon which the lower Court could infer that the Appellant was complicit and liable to conviction for the offences of armed robbery and conspiracy to commit armed robbery?

The Respondent raised a sole issue for determination that is: “Whether there is any exceptional reason to set aside the decision of the trial Court and the concurrent decision of the lower Court on appeal, on the conviction and sentencing of the Appellant?”

I adopt the Respondent’s sole issue, in lending credence to the well-articulated lead judgment of my learned brother, SAULAWA, JSC.

Learned counsel for the Appellant has argued amongst others, that the Prosecution has failed to prove the ingredients of the offences charged, and that the learned trial Judge was wrong to have relied on the retracted Appellant’s confessional statement, Exhibits C. Understandably, the Respondent argued otherwise.

PW1 and PW2, the victims of the robbery incident, gave very vivid account of the robbery as eye witnesses and how they caught and held the Appellant down at the scene of the crime until the police came and took him away. The evidence of PW1 and PW2 coupled with the Anpellant’s confessional statement is enough for the Court to make an inference as to the guilt of the Appellant.

The law is trite that a conviction can be found on a retracted confessional statement of an accused person once it is voluntary, positive and true. Where an accused person objects to the tendering of his confessional statement on the ground that he did not make it, the confession will be admitted and the question as to whether he made it or not will be decided at the end of the trial, since the issue of its voluntariness does not arise for consideration. See: Dibia v. State (2017) LPELR 48453 SC.

In the instant case, PW1 and PW2 who are the victims of the robbery incident, gave very vivid account of the robbery. The evidence of PW1 and PW2 coupled with the Appellant’s confessional statement is enough for the Court to make an inference as to the guilt of the Appellant. Conviction can stand if the Prosecution is able to establish the ingredients of the offence, even on the evidence of a single witness. See: Lase v. State (2017) LPELR 42468 SC.

The Court below, echoed these sentiments, when in its judgment, it stated thus: “The testimonies of PW1 and PW2 are very strong, positive and direct. They were not only the victims of the robbery but they saw the appellant, grabbed him and held him down until help came and he was taken away. The evidence of PW1 is that the Appellant along with two others broke into her house and were holding a local gun, Exhibit D over her son who was sleeping in the ‘parlour’. She was in her room next door sleeping when she heard the commotion and came out to the ‘parlour’ and was confronted with that scene.

Fearing for her son’s life, she offered to give them money. Two of the gang members (still at large) followed her to the room where they robbed her of a total sum of N60,000. At that point, the neighbors sensing what was happening started shouting ‘thief, thief’ to draw attention of those who might aid them. Throughout the operation with the two gang members in the room, the appellant was holding a gun over PW2’s head in the ‘parlour’.

The evidence was that the two went out to shut up the neighbor who was trying to attract attention to them and bolted away when they realized the situation was dangerous. Before the appellant could leave, PW1 grabbed him from the back. Assisted by PW2 they held down the appellant until the neighbours called for help and the patrol team went and took him to the Police station. PW1’s evidence was never shaken under cross-examination. Clearly, she is a witness of truth. In cross-examination, she said she did not know the appellant before the date of the robbery.

In further cross-examination, she said the other two accomplices of the appellant wore face mask but the appellant had one together with the local gun and four ammunitions and hand gloves but was not wearing it at the time of their encounter with him. While she admitted that she could not identify the two accomplices who were masked, the identity of the appellant vis-a-vis PW1 was never in doubt.

Indeed, as has been held in a plethora of cases, the testimony of PW1 alone having proved all the essential elements of the offence of armed robbery, is sufficient to prove the offence beyond reasonable doubt. It is direct, positive, cogent and reliable. I found earlier that the testimony of PW1 was not in any way shaken in cross-examination. It is important that even though it could have relied on the evidence of PW1 alone to secure a conviction, the prosecution still called PW2. … the evidence of Pw2 corroborated the testimony of PW1 in every material particular.

There was robbery involving three persons. The appellant was one of them. He was armed with a gun and was captured in the house with a gun and four ammunitions. They robbed PW1 of N60,000.00. I am satisfied from the evidence of PW1 and PW2 which remained largely uncontroverted, that the prosecution proved its case beyond reasonable doubt…”

I agree with the Court below that in the circumstances of the instant case, even without the confession, it is clear that the evidence of the Prosecution Witnesses. i.e. PW1 and PW2 was unassailable and enough to ground the Appellant’s conviction and sentence.

It is for these and the more detailed reasons advanced in the lead judgment prepared by my learned brother, IBRAHIM M. M. SAULAWA, JSC, that I also dismiss this appeal.

I equally abide by any consequential order contained therein. Appeal dismissed.

TIJJANI ABUBAKAR, J.S.C.: My Lord and learned brother, SAULAWA, JSC granted me the privilege of reading in draft the leading judgment prepared and rendered in this appeal.

I entirely agree and endorse the sound reasoning and conclusion, I adopt the entire judgment as mine, I have nothing extra to add.

​Appeal dismissed.

Judgment

JOHN INYANG OKORO, J.S.C. (Delivering the Leading Judgment): This appeal is against the judgment of the Court of Appeal, Ibadan Division delivered on 8th June, 2010 wherein the lower Court affirmed the judgment of the General Court Martial which convicted and sentenced the appellant to terms of imprisonment. The Appellant was the 1st accused at the trial General Court Martial convened by the General Officer Commanding 2nd Mechanized Division, Nigerian Army, Benin wherein the Appellant was charged with three other accused persons on a four count charge.

A summary of the facts leading to this appeal may be stated as hereunder.

The Appellant was one of the four military officers alleged to have aided some civilians in transporting weeds suspected to be Indian Hemp in an Army truck, having collected the sum of N28,000.00 (Twenty-eight thousand naira) from the civilians for that purpose.

The military truck was intercepted by the police and arrested along with two civilians and two military officers conveying the said weeds. The arrested men made statements to the police before the appellant came and secured the bail of the two military officers.

Subsequently, the General Officer commanding 2nd Mechanized Division of the Nigerian Army, Benin Division, convened a General Court Martial and charged the Appellant alongside three other military officers for disobedience to a Standing Order, Official Corruption, permitting improper carriage of goods in a military vehicle and agreeing to improper carriage of persons in a military vehicle.

The Appellant pleaded not guilty to these four count charges. The prosecution called five witnesses in proof of the charge, two of whom were the civilians caught alongside the two military officers. The other three witnesses were the police officers who investigated the matter. The Appellant testified on his own behalf as DW4.

The General Court Martial convicted the Appellant on all the four count charges and sentenced him to terms of imprisonment which were to run concurrently. The General Officer Commanding 2nd Mechanized division of the Nigerian Army, Benin Division, confirmed the conviction and sentence and the Appellant was imprisoned. Appellant’s appeal to the Court of Appeal was dismissed on 8th June, 2010.

The Appellant, not satisfied with the stance of the Court below, has further appealed to this Court. He filed Notice of Appeal on 7th July, 2010 with three grounds of appeal. However, by an amended Notice of Appeal dated 8th November, 2010, the appellant increased the grounds to four out of which he has distilled three issues for the determination of this appeal.

On 21st October, 2021 when this appeal was heard, the learned counsel for the Appellant, Taiwo Abe, Esq who settled the appellant’s brief of argument was absent, though the appellant was served with hearing notice. By the rules of this Court, the appeal was deemed argued having regard to the age of the appeal. The said brief was filed on 24th July, 2015. The three issues distilled in the Appellant’s brief are as follows:- 1.

Whether the Court of Appeal was correct to hold that the prosecution proved its case beyond reasonable doubt against the Appellant in the face of the obvious contradictions in the testimonies of the prosecution witnesses and doubts raised in favour of the Appellant. 2. Whether the Court of Appeal was correct in holding that the Appellant was part and parcel of the whole deal of using Army truck to carry improper goods and persons because there was no proper rebuttal of evidence that the Appellant collected N28,000.00 (Twenty-eight thousand naira) from one Mr.

Oloko for the illegality when the only evidence to that effect was the testimony of PW1 (Mr. Oloko) which was firmly denied by the Appellant. 3. Whether the Court of Appeal was correct in affirming the conviction of the Appellant when the Appellant was not afforded fair trial when he was denied his request of calling two material witnesses in his defence before the General Court Martial and when the Judge Advocate abdicated his statutory role of advising the General Court Martial to partake in the trial and conviction of the Appellant.

Learned counsel for the Respondent, Etukwu Onah, Esq., who filed Respondent’s brief of argument on 10th June, 2020 but deemed filed on 21st October, 2021, adopted the said brief and urged the Court to dismiss the appeal. Two issues are formulated for determination thus:- 1.

Was the Court of Appeal right in affirming the conviction and sentence of the Appellant by the General Court Martial based on the fact that the prosecution had proved its case beyond reasonable Court (sic) and there were no material contradictions in the evidence of the prosecution witnesses to set aside the Appellant’s conviction? 2. Was the Court of Appeal right to hold that the Appellant was not denied fair hearing throughout his trial, conviction and sentence by the General Court Martial.

From the facts of this case, the judgment of the Court below appealed against and the grounds of appeal in the amended Notice of Appeal, it seems to me that the two issues donated by the Respondent are enough to appropriately dispose of this appeal. This means that Appellant’s issues one and two shall be taken together with Respondent’s issue one while Appellant’s issue three shall be determined alone with Respondent’s issue number two. I shall proceed to resolve the issues in that order accordingly.

ISSUES ONE AND TWO In arguing issue one, the learned counsel for the Appellant submitted that it was not proper for the Court below to hold that the contradictions in the testimonies of prosecution witnesses were not material enough as to warrant setting aside the conviction of the Appellant. According to him, PW3 – PW5 testified before the trial General Court Martial that statements obtained without coercion from DW1 and DW2 confirmed that DW1 and DW2 were on official road test when they decided to help out two civilians they saw on the road.

That these testimonies are clearly in contradiction with the subsequent testimony of DW2 in the trial General Court Martial which subsequent testimony sought to indict the Appellant. He stressed that in considering what constitutes material contradiction, recourse must be had to the nature of the charge against the Appellant and the ingredients required for proof of such charge, relying on the case of Ibe v The State (1992) 23 NSCC (pt. 2) 205.

Learned counsel further submitted that a cursory examination of the facts of this case will reveal that the basic ingredient which the prosecution is required to establish against the appellant to sustain all the charges against him is that the Appellant was aware and in fact, gave authority to DW2 – DW4 to carry unauthorized goods and civilians in an Army truck.

He contended that the contradictions were material and since they were not clarified, the testimonies of prosecution witnesses ought to have been discountenanced, referring to Mbenu v The State (1988) 2 NSCC 232, Aruna v The State (1990) 21 NSCC (pt 3) 295, Kalu v The State (1998) 3 NSCC page 2.

On issue 2, learned counsel submitted that the prosecution called only one witness (PW1) in proof of the appellant’s alleged collection of the sum of N28,000.00 from Mr. Oloko who was also the PW1 for the illegal use of the Army truck. That even though, PW1 further stated that there was a witness to the transaction, one Mr. Efe, at no point was the said Mr. Efe called or explanation given as to why he was not called. He submitted that the Court below failed to attach any evidential value to the denial of the Appellant to the receipt of the N28,000.00.

He opined that this is against the decision of this Court in Uche – Williams v The State (1992) 3 NSCC, page 209 which held that any defence to which an accused person is entitled to, should be considered however stupid or unreasonable, for what it is worth.

Learned counsel submitted further that there was no clear cut evidence from the prosecution bearing out the finding by the Court below that the Appellant was part and parcel of the whole deal. That part of the evidence reveals that the Appellant was only aware that the truck was on road test, while the other part tends to point to the fact that the Appellant was part of the whole deal. On how to resolve the issue, learned counsel referred to the case of Ameh v The State (1978) 11 NSCC page 39.

Learned counsel further stressed that failure by the General Court Martial to summon O/C Narcotics and Mr. Efe to testify on behalf of the Appellant and the failure of the prosecution to call Mr. Efe as a witness raises a lot of questions and doubt as to the veracity of the testimony of the PW1. He urged this Court to resolve the two issues in favour of the appellant.

In response, the learned counsel for the Respondent submitted that proof beyond reasonable doubt does not mean proof beyond every shadow of doubt in that in every human adventure, absolutism or certainty of any fact is impossible. That if the trial Court is satisfied that the prosecution has proved its case against the accused person beyond reasonable doubt based on the evidence led, it can convict the accused, relying on Bakare v The State (1987) 3 SC 1, Adekoya v The State ​(2012) 3 SC (pt 11) 36, Musa v The State (2013) 2 – 3 SC (pt 11) 75 at 105 amongst others.

Learned counsel submitted that the prosecution actually proved all the offences, the Appellant was charged with at the trial Court before he was convicted and that the lower Court was right to affirm the decision. He contended that the prosecution having established that the 3rd accused person was detailed by the Appellant, and had indeed established that Appellant collected N28,000.00 from one Mr.

Oloko, one of the civilians carried in the truck, and whose drugs (Indian hemp) was carried in the said truck, the prosecution had proved its case beyond reasonable doubt. ​ Respondent’s counsel submitted further that, assuming without conceding that there were contradictions in the evidence of the prosecution witnesses, such alleged contradictions were not material enough to reverse the concurrent findings of facts of the two lower Courts.

That it is not every trivial or trifling inconsistency or contradiction in the evidence of the prosecution witnesses that could be fatal to the prosecution’s case. That it is only when such inconsistencies or contradictions are substantial and fundamental to the main issue in question before the Court and thus creates doubt in the mind of the trial Judge that an accused person is entitled to the benefit therefrom.

According to him, this is not the case here, relying on Okonji v The State (1987) 1 NWR (pt 152) 659, The State v Aibangbe (1988) 3 NWLR (pt 84) 548, Wankey v The State (1993) 5 NWLR (pt 295) 542, Ekpenyong v The State (1993) 5 NWLR (pt 295) 513 and Agbo v The State (2007) 10 WRN 95.

Learned counsel urged the Court to resolve this issue against the Appellant.

RESOLUTION:- The issues to be resolved in this segment of the judgment is whether the prosecution proved the charge against the Appellant beyond reasonable doubt and whether the Court was right to affirm the decision of the trial General Court Martial that the Appellant was part of the deal being the illegal use of the Army truck to convey some weeds suspected to be Indian hemp for a fee. ​ By Section 135 of the Evidence Act, 2011, in all criminal trials, the burden is on the prosecution to prove the essential ingredients of the offence against an accused person beyond reasonable doubt.

That is to say, the guilt of an accused person must be proved beyond reasonable doubt. Where the prosecution fails to prove its case beyond reasonable doubt, the accused person must be acquitted and discharged.

For the avoidance of doubt, Section 135 of the Evidence Act, 2011 provides:- “135(1) If the commission of a crime by a party to any proceedings is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt. (2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to the provisions of Section 139 of the Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action.”

This Court has held in many decided cases that proof beyond reasonable doubt does not mean proof beyond every shadow of doubt in that, in every human adventure, absolutism or certainty of any fact is impossible. Therefore, if the trial Court is satisfied that the prosecution has proved its case against the accused person beyond reasonable doubt based on the evidence led, it can convict the accused.

In Bakare v The State (1987) 3 SC 1, this Court, per Oputa, JSC made it very clear thus:- “Proof beyond reasonable doubt stems out of the compelling presumption of innocence inherent in our adversary system of criminal justice. To displace this presumption, the evidence of the prosecution must prove beyond reasonable doubt, not beyond the shadow of any doubt, that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure including the administration of criminal justice. Proof beyond reasonable doubt means just what it says.

It does not admit of plausible and fanciful possibilities but it does admit of a high degree of cogency, consistent with an equally high degree of probability. As Lord Denning J (as he then was) observed in Miller v Minister of Pensions (1947) 2 All E.R. 373: “The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice.

If the evidence is so strong as to leave only remote possibility in his favour which can be dismissed with the sentence – “of course it is possible but not in the least probable’, the case is proved beyond reasonable doubt.” See also Nwaturuocha v State (2011) 6 NWLR (pt 1242) 170, Smart v The State (2016) LPELR – 40827 (SC), Akindipe v The State (2012) 16 NWLR (pt 1325) 94, Hassan v The State (2016) LPELR – 42554 (SC), Umoh Ekpo v The State (2018) LPELR – 43843 (SC).

My Lords, in the instant appeal, the evidence is clear that the Army truck involved was used by some Army personnel to carry weeds suspected to be Indian hemp on behalf of some civilians for a fee of N28,000.00. They were arrested by police and the result is this appeal. The contention of the learned counsel for the Appellant is that the prosecution failed to prove beyond reasonable doubt that the appellant was part and parcel of the deal. At page 206 to 207 of the record, the Court below concluded emphatically that the appellant was part and parcel of the deal.

It states:- “Appellant was part and parcel of the deal. Is there for example any proper rebuttal of the evidence that Appellant collected N28,000.00 from one Mr. Oloko for the illegal use to which the army truck was employed? I think the General Court Martial was right in its findings and I so hold.” ​ The above conclusion was a confirmation of the decision of the trial General Court Martial. At the said Court Martial, the evidence of PW1 against the Appellant is found on pages 27 – 28 of the record.

It states in part as follows:- “My name is Lawrence Oloko from Delta State, My occupation is mechanic… When I finished my mechanic, I went to Ondo State to farm Indian hemp. It was one of my friend called Ify who introduced me to one major. …The major charged me N28,000.00 to help me carry the Indian hemp to the place we will sell it. On 5 Nov. 95, the Major asked me to pay N16,000.00. On the next day, he said I should pay the next money N12,000.00 before we move.”

After identifying the Appellant in the Court as the major, he was referring to, he continued his testimony thus:- “On our way going, we went to load the Indian Hemp. It was 140 bags. We were three, myself, Sunday, Obiabi, the Sgt and the LCPL. On our way going we were arrested at Sobe village by policemen. The policemen were three. They asked who owned the goods inside the vehicle, I said I am the owner. They asked who the person that authorized the use of the vehicle. I said it was one Major who was introduced to me by one of my friend Ify.

When we were arrested, the Major came and met the police and they discussed. They released the vehicle and the soldiers so we were taken to Sabongidi Ora and from there, we come (sic) to the State CID.”

Again, DW2, one Sgt Ekpeyong gave a graphic narration of how the appellant sent for him and ordered him to go and assist the PW1 to carry the weeds.

From the above and other pieces of evidence in the record, there is no doubt whatsoever that the trial General Court Martial and the Court below were right in holding that the appellant was part and parcel of the deal if not the mastermind of the deal. As was observed by the Court below, the appellant failed to properly rebut the evidence that he collected the sum of N28,000.00 from Mr. Oloko for the facilitation of the conveyance of Indian Hemps in the Army truck.

The argument of learned counsel for the appellant that there were contradictions in the evidence of prosecution witnesses does not fly at all. There is difference between what an accused person would say immediately he is arrested just to help himself and what is revealed during investigation. The law is trite that it is not every trivial or trifling inconsistency or contradiction in the evidence of the prosecution witnesses that could be fatal to its case.

It is only when such inconsistencies or contradictions are substantial and fundamental to the main issue in question before the Court and thus creates doubt in the mind of the trial Judge that an accused person is entitled to an acquittal. This is not the case here. The evidence against the appellant is so convincing that the trial Court martial was in order when it convicted him and upheld by the Court below. See Akpan v The State (1991) LPELR – 380 (SC), Ibeh v State (1997) 1 NWLR (pt 484) 632, Okonji v The State (1987) 1 NWLR (pt 152) 659, The State v Aibangbe (1988) 3 NWLR (pt 84) 548.

It is my well considered opinion, as was also held by the two Courts below that the alleged contradiction is not worthy of consideration and does not affect the concrete evidence adduced against the Appellant in this matter.

In all, it is my view that the two Courts below in their concurrent findings were right in holding that the prosecution proved its case against the Appellant beyond reasonable doubt and that the appellant took part in the deal. Appellant’s issues one and two and Respondent’s issue one are resolved against the Appellant.

ISSUE THREE:- In respect of this issue, the learned counsel for the Appellant submitted that because the Judge Advocate co- signed the sentence of the accused person with the President of the General Court Martial, this raises the presumption that the Judge Advocate was part and parcel of the panel that reviewed the evidence on record, deliberated on same and decided to convict all the accused persons including the appellant contrary to Section 139 of the Armed Forces Act Cap A20 Vol. 1 Laws of the Federation of Nigeria 2004 which provides that “A Judge Advocate shall be present at all sittings of a Court Martial except during deliberations on findings and sentence” According to him, this has vitiated the entire trial. ​ Learned counsel submitted further that the right of the Appellant as provided for and protected under Section 36(6) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) was flagrantly breached by the trial General Court Martial when the Court refused to summon O/C Narcotics and Mr.

Efe to testify in the defence of the Appellant. According to him, the Appellant was denied fair hearing by this singular act relying on Attorney General of Rivers State v Ude (2007). He concluded that the failure of the General Court Martial to afford the Appellant fair trial by hearing his witness vitiates the proceedings in its entirety and that the lower Court should have upheld Appellant’s appeal accordingly, relying on Chungwon Kum v The State (1992) 23 NSCC (pt. 1) page 581. Learned counsel then urged the Court to resolve this issue in favour of the appellant.

Responding to the argument of the learned counsel for the Appellant, learned Respondent’s counsel submitted that there is nothing in the record of proceedings of the trial General Court Martial to indicate or suggest that the Appellant’s request to call witnesses was refused by the Court. That page 58 of the record referred to by the Appellant does not help him at all.

He contended that there is nothing on page 58 of the record to suggest that the Appellant was denied the right to call his purported “two material witnesses” in defence of the charge he stood trial for. ​ Learned counsel further submitted that it is not the duty of the prosecution or the trial Court to call witnesses for the accused/appellant, relying on Emmanuel Okpulor v The State (1990) 11 – 12 SC 151, Inusa v The State (1992) 4 SC 41 at 68 – 69, Effiong Udofia v The State (1981) 11 – 12 SC 49 at 63. That if the Appellant indeed, wanted O/C Narcotics and Mr.

Efe as his witnesses, he had all the opportunity during the trial to call them as his witnesses to testify for him. He was never denied fair hearing under Section 36(1)(6)(d) of the Constitution (supra). That the cases of Attorney General of Rivers State v Ude (supra) and Kim v The State (supra) cited by the appellant do not apply.

On the submission that the Judge Advocate breached Section 139 of the Armed Forces Act (supra), learned counsel submitted that the record of appeal clearly states to the contrary. Referring to page 109 of the record where the Judge Advocate made his address to the members of the Court Martial, he stressed that the Judge Advocate did his job within the bounds of the law. That the concurrent findings of the trial Court martial as affirmed by the Court below cannot be faulted.

That the evidence on record shows that the Judge advocate never participated in the review of the evidence which led to the conviction of the Appellant. He urged the Court to resolve this issue against the Appellant.

RESOLUTION:- The pith and substance of this double barrel issue is that the Appellant was denied fair trial, in that, the Appellant requested the trial General Court Martial to summon two witnesses to testify for him but his request was turned down and secondly, that the Judge Advocate participated in the deliberation on the findings of the General Court Martial that led to the conviction of the Appellant.

Both the trial Court and the Court of Appeal in concurrence held that neither did the appellant request the Court martial to summon any witness nor did the Judge Advocate take part in deliberation which led to the conviction of the Appellant. I shall return to this anon.

My Lords, the right to fair hearing or fair trial is one of the fundamental rights guaranteed in Section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). It is one of the twin pillars of natural justice which supports the Rule of Law. The pillars are an indispensable part of the process of adjudication in any civilized society. They are:- 1. Audi alteram partem – meaning: hear the other side i.e. one must be heard in his own defence before being convicted or condemned, and 2. Nemo judex in causa sua – meaning: no one may be a Judge in his own cause.

See Ndukauba v Kolomo & Anor (2005) 4 NWLR (pt 915) 411, Ikomi v The State (1986) 5 SC 313, Okadigbo v Chidi (2015) LPELR-24564 (SC) 1 at 39 E – F, Arije v Arije & Ors (2018) LPELR – 44193 (SC). Fair trial/hearing requires that the trial must be conducted according to all applicable legal rules with a view to ensuring that justice is done to all parties before the Court. The law is trite that any proceeding conducted in breach of the right to fair hearing is a nullity and liable to be set aside. See Kotoye v CBN (1989) 1 NWLR (pt 98) 419, Ariori v Elemo (1983) 1 SC 81.

ln the instant case, regarding the first leg of the argument, I have gone through the whole gamut of the record and I am unable to find where the Appellant applied to the General Court Martial to call the O/C Narcotics and Mr. Efe and he was so refused and/or denied.

As was submitted by the learned counsel for the Respondent, Appellant’s alleged request to call the two witnesses is not borne out of the record of proceedings as compiled and transmitted to this Court, I have read page 58 of the record referred to by the learned counsel for the Appellant and I cannot see where the Appellant made such a request. All I can see is what the Appellant said during his evidence in chief when he was asked to clarify the allegation that he was paid the sum of N28,000.00 for the deal. It goes thus:- “Q. Now how do you clear the twenty-eight thousand naira issue? A.

I went there to the police, the OC NARCOTICS said boys said they gave me twenty-eight thousand naira and when the OC NARCOTICS asked him in my presence, he denied that it was his brother Efe who said so and OC NARCOTICS slapped him. So the OC NARCOTICS said this how I was robbed – in and that is why I needed both OC NARCOTICS and Efe as my witnesses.”

There is nothing on page 58 or the entire record to show that the Appellant was denied the right to call his two material witnesses. There is also nothing to suggest that the trial General Court Martial refused to hear his witnesses due to lack of time. It is therefore my conclusion that the argument of the learned counsel for the Appellant on this issue lacks evidential value. It is not borne out of the record.

Moreover, the law is trite that the prosecution has discretion to call witnesses of its choice. The prosecution is under no constitutional or statutory duty to call a particular witness or witnesses. It has no duty to call a particular number of witnesses. An accused person cannot dictate to the prosecution witnesses it should call to prosecute him. So also the defence. The prosecution cannot dictate to the accused what number of witnesses or particular witnesses it should call to defend the case. An accused person has the liberty to call relevant witnesses of his choice to defend himself.

See Idiok v The State (2008) 13 NWLR (pt 1104) 225, State v Olatunji (2003) 14 NWLR (pt 839), Osetola & Anor v The State (2012) 17 NWLR (pt 1329) 251, Chukwu v The State (1992) 1 NWLR (pt217) 255.

Let me also state clearly that it is not the duty of a trial Court to call witnesses for the prosecution or the defence in a criminal trial. If it does, it may be accused of descending into the arena. A trial Court should not take over the case of a party and conduct it for him. However, a situation may arise in which it appears to the Judge that a person can throw light on the case under trial but has not been called as a witness by either party because neither party wishes to make him a witness.

The Judge may call him with the parties who will also have the right to cross-examine the said witness. This was the decision of this Court in Elike v Nwakwoala (1984) 1 ANLR, 505, (1984) LPELR 1118 (SC) at pages 30 – 32 paragraphs E -A wherein Coker, JSC held as follows:- “In Bell – Gam v Bell – Gam (1965) 1 All NLR 106 page 108, this Court said “a judge has no power to call a witness except with the consent of the parties.

The situation may arise in which it appears to the judge that a person can throw light on the case under trial but has not been called as a witness by either party because neither party wishes to make him his witness. The judge may call him as a witness with the acquiescence of the parties and ask him the questions on which the judge thinks the witness can help.

If his answers are useless on the issue in the case, neither party would be allowed to cross-examine him but if his evidence is adverse to a party, that party should be given leave to cross-examine him on his answers only,” It has never been suggested that the trial Judge in this case was in breach of any of the foregoing in the course of the trial. Rather he has been accused of not doing what he ought not to do. There was nothing on record that the Court was aware that the defendants had more witnesses to call and that counsel informed the Judge, but was not allowed to call them.

If he had witnesses to call and wanted adjournment to enable him to call them he should have applied to the Court He never did so.” Outside the above position of this Court, a Court is not under any obligation to call witnesses for a particular party to bolster his case. The Appellant failed to make appropriate application to enable him call whoever he wanted to call. It is too late in the day.

It follows that the trial General Court Martial and the prosecution cannot be guilty of withholding evidence against the Appellant. ​ On the second leg of the argument, which relates to the Judge advocate being part and parcel of the panel that reviewed the evidence on record, it is very clear that it is not borne out of the record. Rather, as clearly seen on page 109 of the record of appeal, the Judge Advocate made his last advice before the members of the panel retired to make their findings.

It is pertinent to reproduce the concluding remarks of the Judge Advocate as reproduced by the Court below on page 203 of the Record of Appeal as follows:- “The words of the Judge Advocate after his sum of the case is at page 109 of the record and is worthy of reproduction here, It runs thus:- “In conclusion, Mr.

President Sir, members of the General Court Martial having stated the evidence adduced by both the prosecution and the defence and the position of the law regarding the case before you, while you retire into findings, I will only pray that God gives you the wisdom with which to deliberate and arrive at a just decision as this is my last chance to advise you on this particular case. This is why I also touch on punishment sections so that you will find it easy to refer to them if need be.

Thank you sir. (underlining mine for emphasis.)” My Lords, contrary to the submission of the learned counsel for the Appellant, the Judge Advocate clearly and unequivocally demonstrated in his address to the General Court Martial that he knew his job as an adviser to the Court and not a Judge. There is nothing to show that he took part in the final deliberation leading to the conviction and sentence of the Appellant.

In fact, it was on the basis of the Judge Advocate’s conclusion cited above that the lower Court came to the conclusion when it held on pages 203 – 204 of the Record of Appeal as follows:- “I have taken pains to reproduce this last bit and to further emphasis certain portions of the last bit of the address of the Judge Advocate to show that he could not have and did not take part in the judgment process.

The underlined expression, “while you retire into findings” could not have been made by someone who followed the panel to take a decision on the case The underlined expression “as this is my last chance to advise you on this particular case” shows that the Judge Advocate appreciated his role as being that of an adviser and not a Judger Going through the records, I do not see anything to suggest otherwise…

The Judge Advocate was therefore not in breach of the principle of Nemo Judex in Causa Sua while performing his statutory functions, I therefore resolve this issue in favour of the Respondent against the Appellant.”

It is my well considered opinion that the above findings by the lower Court is unimpeachable and cannot be faulted by this Court. There is nothing in the record of proceedings to suggest that the Judge Advocate compromised his position or breached any extant law. He never participated in the review of the evidence of the trial Court martial which led to the conviction and sentence of the Appellant. He never breached the principle of Nemo Judex in Causa Sua as alleged by the learned counsel for the Appellant. It is on this note that I resolve this issue against the Appellant.

Having resolved the three issues against the Appellant, it only remains to say that there is no scintilla of merit in this appeal. It is hereby dismissed by me. Accordingly, I affirm the judgment of the Court below delivered on 8th June, 2010. Appeal Dismissed.

AMINA ADAMU AUGIE, J.S.C.: I had a preview of the lead judgment just delivered by my learned brother, Okoro, JSC, and I agree with him that Court of Appeal rightly affirmed the decision of the General Court Martial that the Appellant was guilty as charged for the offences of disobedience to Standing Order contrary to Section 57(1) of the Armed Forces Decree, 1993, committing a civil offence contrary to Section 114 of the said Decree, and permitting improper carriage of goods in a military vehicle, which is contrary to Section 74(a) of the said Armed Forces Decree, 1993.

My learned brother covered the field, and I will only emphasize the point he made about the Appellant’s contention that there were material contradictions in the evidence of the Prosecution Witnesses.

It is settled law that Witness testimonies can only be said to be contradictory when they give inconsistent accounts of the same event, and for such contradictions to vitiate the Court’s decision, they must be so material that they cast doubt on the case presented as a whole. Thus, it is only a contradiction in respect of a material fact that would make a Court doubt the evidence, and what is material will depend on the facts of the case. SeeEke V. State (2011) 3 NWLR (Pt. 1235) 589, Kalu V. State (1988) 4 NWLR (Pt. 90) 503, and Ikemson V.

State (1989) 3 NWLR (Pt. 110) 455, wherein Karibi-Whyte, JSC, stated as follows – “Material evidence is such evidence, which on account of its logical nexus with the issue tends to influence decisively the establishment of the fact in issue. – – -For instance, the evidence of which the Appellants shot PW1 or PW2 or which leg PW2 was shot is not material to the issue of fact that PW1 or PW2 was shot. That PW1 or PW2 was shot at is material to the crime with which the Appellants have been charged. Similarly, the sequence of pointing a gun at PW1 and PW2 and blocking of the road on a Motorcycle.

The fact was that there was credible evidence that the gun was pointed at them, and the road was blocked by persons on a Motorcycle. Thus, none of the contradictions alleged – is material to affect the establishment of the fact that the offence of robbery with arms was committed, and that the Appellants have been identified as those who committed the offence.

The alleged contradictions are not material to the facts in issue, no explanation seems to me to be required.” Facts in issue, as defined in Section 258 of the Evidence Act, 2011- “Includes any fact from which either by itself or in connection with other facts the existence, non-existence, nature or extent of any right, liability or disability asserted or denied in any suit or proceeding necessarily follows…”

A fact is in issue when its assertion is denied by the other party. Thus, an issue is said to be joined by parties on a particular fact making its proof necessary when its assertion is disputed by the opposing party – see Mohammed & Anor V. State (2007) 11 NWLR (Pt. 1045) 303.

In this case, the fact in issue is whether the Appellant authorized DW2-DW4 to carry unauthorized goods and civilians in an Army truck. The Appellant’s contention is that the evidence of PW3-PW5 that the Statements obtained from DW1 and DW2 confirmed that they were on official road test when they decided to help the said two civilians, contradicted the testimony of DW2 and the Court of Appeal held that: “The question here is whether the contradictions were material.

It is trite that an appellate Court will only set aside the judgment of the lower Court where there are material contradictions – It is the Appellant’s argument that while PW1 stated that he hired the truck from the Appellant, PW3, PW4 and PW,  gave evidence that they were told by 3rd and 4th accused persons that the truck was on road test. This contradiction cannot be said to be material enough to set aside the conviction.”

It is certainly not unusual to have inconsistencies in the evidence of witnesses, and it is evident that the Court of Appeal is right since the Appellant did not point to any major contradiction in the evidence of the said prosecution witnesses to warrant setting aside its decision. So, I agree with the Court of Appeal that the said contradiction is not serious enough to set aside the decision of the General Court Martial.

It is for this and the other articulate reasons in the lead Judgment that I dismiss this appeal and affirm the Court of Appeal’s decision.

HELEN MORONKEJI OGUNWUMIJU, J.S.C.: I have read before now the judgment just delivered by my learned brother, JOHN INYANG OKORO, JSC and I am in complete agreement that the appeal is wholly without merit and should be dismissed. ​ This is an appeal against the judgment of the Court of Appeal, Ibadan Division delivered on 8th day of June, 2010 Coram: Stanley Shenko Alagoa, Sidi Dauda Bage, Modupe Fasanmi (JJCA) which affirmed the decision of the General Court Martial convened by order of Brig. Gen. P. N.

Aziza (DSS, PSC(+) MNI) General Officer commanding 2nd Mechanised Division delivered on 18th March, 1996. The Appellant was arraigned and charged along with three others on three counts the substance of which is set out below: Charge 1: Disobedience to standing orders contrary Section 57 (1) of the Armed Forces Decree 1993. Charge 2: A civil offence to wit: official corruption contrary to Section 98 (1) (b) of the Criminal Code Act. Charge 3: Permitting improper carriage of goods in a military vehicle contrary to Section 74(a) of the Armed Forces Decree 1993.

Charge 4: Agreeing to improper carriage of persons in a military vehicle contrary to Sections 74 (c) of the Armed Forces Decree 1993.

The Appellant pleaded not guilty to the charges.

In summary, the case made out against the Appellant is that the Appellant collected the sum of N28,000.00 from PW1, Mr. Lawrence Okolo, before detailing his co-defendants (who were his juniors) to carry the two civilians and their weeds (suspected to be Indian hemp).

The prosecution called 5 witnesses and the Defendant called 4 witnesses. The Appellant gave evidence as PW4. At the trial, the General Court Martial determined the issue whether from the totality of the evidence adduced by the prosecution, it can be said they proved their case beyond reasonable doubt against the Appellant.

The Court martial found the Appellant guilty, convicted and sentenced him on count 1 to 2 years imprisonment, on count 2 to 5 years imprisonment, on count 3 to 2 years imprisonment and on count 4 to 2 years imprisonment. All the sentences were to run concurrently. The Appellant was dissatisfied and filed an appeal on 17/10/2000.

The Court of Appeal held that since the Appellant’s counsel failed to argue the issue of failure to take Appellant’s plea on the amended counts, it means the issue had been abandoned. The Court of Appeal proceeded to other issues. On the issue of whether the Court martial can convict for an offence which are not criminalized, the Court of Appeal held that from the provision of Section 57(1) & (2) Armed Forces Decree reproduced in the Armed Forces Act Cap 20, (Exhibit 2) which is a standing order which has been sufficiently defined and punishment against its violation.

The Court of Appeal also held that PW1 who gave the Appellant N28,000.00 to transport the weed and gave evidence at the General Court Martial as a prosecution witness was not an accomplice and even if he was an accomplice, by Section 178(1) of the Evidence Act, he was a competent witness against the Appellant and if the General Court Martial considered the evidence credible, it could rely on it and only advise itself that it could be unsafe to convict solely on it which it does not have to be in writing.

On issue three which borders on the principle of nemo judex in causa sua the Court of Appeal held that the Judge Advocate only acted as an adviser and not a “judge” in the Court Martial proceedings. The Appellant did not object to the presence of the Judge Advocate if he had any fears.

The Court held that based on the fact that when the 3rd Defendant at trial informed the Appellant the truck was used for an illegal purpose, the Appellant instructed the 3rd Defendant to report himself to his senior in order to claim innocence on his part, shows he was part of the deal and there was no proper rebuttal of the accusation that the Appellant collected N28,000.00 from one Mr. Oloko. The Court of Appeal affirmed the decision of the General Court Martial

Not satisfied with the outcome at the Court of Appeal, the Appellant has appealed to this Court. An amended Notice of Appeal was filed on 16th November, 2016 with eight grounds of appeal.

In the Appellant’s brief filed 24th July, 2015, five issues were identified by the Appellant for determination as set out below: 1. Whether the Court of Appeal was correct to hold that the prosecution proved its case beyond reasonable doubt against the Appellant in the face of the obvious contradictions in the testimonies of the prosecution witnesses and doubts raised in favour of the Appellant. 2.

Whether the Court of Appeal was correct in holding that the Appellant was part and parcel of the whole deal of using Army truck to carry improper goods and persons because there was no proper rebuttal of evidence that the Appellant collected N28,000.00 from Mr. Okolo for the illegality when the only evidence to that effect was the testimony of PW1 Mr. Okolo which was firmly denied by the Appellant. 3.

Whether the Court of Appeal was correct in affirming the conviction if the Appellant when the Appellant was not afforded fair trial when he was denied his request of calling (2) two material witnesses in his defence before the General Court Martial and when the Judge Advocate abdicated his statutory role of advising the General Court martial to partake in the trial and conviction of the Appellant. 4.

Whether the prosecution negative the defence of the accused and the learned trial Court and or the Court below took into account the position of the law as well as the defence(s) proffered in this case by the Accused. 5. Whether there is evidence upon which the Appellant could be convicted of criminal breach of trust and/or forgery which the Court below could have rightly affirmed on appeal.

In the Respondent’s brief filed 10th June, 2020 but deemed 21st October, 2021, the Respondent argued that: 1. Was the Court of Appeal right in affirming the conviction and sentence of the Appellant by the General Court Martial based on the fact that the prosecution had proved its case beyond reasonable doubt and there were no material contradictions in the evidence of the prosecution witness to set aside the Appellant’s conviction? 2. Was the Court of Appeal right to hold that the Appellant was not denied fair hearing throughout his trial, conviction and sentenced by the General Court Martial?

In this case, the evidence of the prosecution witnesses were not seriously controverted by the defence. The contention of the appellant’s counsel that the appellant was not part of the deal or conspiracy when he permitted an army truck to carry weeds suspected to be Indian Hemp as courier for a civilian for a fee of N28,000.00 is not supported by the evidence on record. Mr. Okolo from whom the money was collected turned state witness to give evidence which the Appellant could not rebut.

On the issue of fair hearing, the record of the Court Martial does not support the Appellant’s contention that he was not allowed to call all the witnesses he needed for his defence. This is an open and shut case wherein the Appellant wants us to set aside the findings of fact of the General Court Martial and the Court of Appeal. I can see no perversity in the findings of the two lower Tribunals and I find no merit in this appeal. I affirm the judgment of the Court of Appeal which affirmed the conviction and sentence of the Appellant. Appeal Dismissed.

ABDU ABOKI, J.S.C.: I have read a draft of the lead judgment just delivered by my learned brother, JOHN INYANG OKORO, JSC and I agree with the views expressed, as well as the conclusion reached on the germane issues which call for determination in the appeal. I only add a few words of mine in support.

This appeal is against the decision of the Court of Appeal, Ibadan Division, delivered on the 8th of June, 2010.

The concise statement of facts leading to this appeal and the arguments of Counsel on both sides of the divide on the issues raised for determination, have been amply detailed by my learned brother in the lead judgment and I need not repeat them, save where occasion demands.

Suffice it to say that this appeal is against the affirmation by the Court below, of the conviction of the Appellant by the General Court Martial, based on the fact that the Prosecution proved the offences against the Appellant. The lower Court held thus: “The exoneration of the Appellant from knowledge that the army truck was being used to carry men and drugs is not borne out of the records. At page 86 paragraph 26 of the record, the contention was that the 3rd accused was detailed to go and collect some gas cylinders.

Appellant came to know that the vehicle had been used for the illegal purpose of carrying people and drugs by the 3rd accused but declined to take disciplinary action against him because when the 3rd accused had committed an offence earlier and the Appellant took disciplinary action against him, it generated bad blood between them. That he instructed the 3rd accused person to report himself to his senior is to claim innocence of the whole incident. Appellant was part and parcel of the whole deal.

Is there, for example, any proper rebuttal of the evidence that the Appellant collected N28,000.00 from one Mr. Oloko for the illegal use to which the army truck was employed? I think the General Court Martial was right in its finding and I so hold.” ​ I find the above finding by the lower Court unassailable, and adopt it as mine, I agree with the Court below that the Appellant failed to properly rebut the evidence that he collected the sum of N28,000.00 from Mr. Oloko for the facilitation of the transportation of Indian Hemps in the Army truck.

I have here before stated that this is an appeal against the concurrent judgments of the two Courts below. The Appellant’s grudge against the two judgments borders on the evaluation of evidence undertaken by the trial Court which the Court below endorsed to make same or similar findings of fact on the basis of which the conviction and sentence of the Appellant stands. I must stress that it is the primary duty of the trial Court to evaluate evidence and ascribe probative value to same.

The lower Court and indeed this Court which did not have the same opportunity the trial Court had in seeing and assessing the witnesses when they were testifying are all handicapped in assuaging appellant’s grudges. See: Wowem v. The State (2021) LPELR 53384 (SC); Ezeani v. FRN (2019) LPELR 46800 (SC). That being said, I remain hesitant to interfere with the concurrent findings of fact of the two Courts below as I am unable to see what perversity or injustice these findings have occasioned.

For the foregoing and more elaborate reasons contained in the lead judgment of my learned brother, OKORO JSC, I also dismiss the unmeritorious appeal. The judgment of the Court below is hereby affirmed. Appeal Dismissed.

TIJJANI ABUBAKAR, J.S.C.: Appeal is against the judgment of the General Court Marshal Ibadan Division delivered on the 8th day of June, 2010 wherein the lower Court affirmed the decision of the General Court Marshal of the 2nd Mechanised Division of the Nigerian Army delivered on the 18th day of March, 1996 and confirmed by the Army Council on the 5th day of April, 1996. Appellant was convicted and sentenced to terms of imprisonment.

The Appellant was charged for disobedience to standing orders, official corruption, improper carriage of goods in a military vehicle, he was among the persons accused for aiding some civilians in the transportation of weeds suspected to be cannabis sativa in a Military truck having been rewarded by the civilians, Appellant was adjudged guilty, he was convicted and sentenced of all the counts. He appealed to the lower Court, his conviction and sentence were affirmed by the lower Court, he therefore appealed to this Court after serving his term of imprisonment.

The Appellant nominated and argued three issues for determination while the Respondent through learned Counsel crafted and argued two issues.

Both the Court marshal and the lower Court found that there was sufficient evidence linking the Appellant to the alleged crime, the Appellant failed to advance any cogent evidence to rebut the evidence led by the prosecution. Appellant therefore participated in the infamous and disgraceful conduct of transporting Indian hemp using official military truck. The decision of the lower Court is on firm ground as rightly found by my learned brother in the leading judgment.

There is a concurrent finding of facts by both the General Court Marshal and the lower Court, I also carefully read the illuminating judgment prepared and rendered in this appeal by my learned brother OKORO, JSC who graciously granted me a preview, it is not the attitude of this Court to tinker with concurrent findings of facts unless there are compelling reasons to do, in the instant appeal the findings are not perverse and must be allowed to remain the way they are, the findings of the lower Courts are in accord with the evidence generated at the trial, and there is no reason whatsoever to disturb the findings.

This Court in LAWALI V. STATE (2019) LPELR-46405 held as follows: “…The concurrent findings, supported by credible evidence, cannot be faulted. The well-established presumption is that findings of facts are correct. The burden, on appeal, is on the appellant to displace the presumption. See BAKARE v. THE STATE (1987) 1 NWLR (pt. 52) 579 at 593.

Where the appeal challenges only the concurrent findings of fact the burden on the appellant to displace the presumption that the concurrent findings of fact are correct is made difficult by the rule of practice in the appellate Courts to the effect that an appellate Court is loath to disturb concurrent findings of fact and therefore such concurrent findings of fact should rarely be disturbed. See ENANG v. ADU (1981) 11 – 12 SC 17 at 27 (Reprint).

The usual circumstances concurrent findings of fact are disturbed are: when it is shown that the findings are perverse and not the result of a proper exercise of judicial discretion, or that there is no evidence at all to support a particular crucial finding, or that the trial Court made wrong deductions or drew wrong inference from the admitted or established facts. See UBANI & ORS v. THE STATE (2003) 18 NWLR (PT. 851) 224.”

I agree with the reasoning and conclusion reached in the leading judgment, I therefore, for the above reasons and the more detailed reasons set out in the leading judgment adopt the judgment as my own and join my learned brother in holding that the appeal is bereft of merit and therefore deserves to be and is hereby dismissed. I also affirm the judgment of the lower Court delivered on the 8th day of June, 2010.

Judgment

HELEN MORONKEJI OGUNWUMIJU, J.S.C. (Delivering the Leading Judgment): This is an appeal against the judgment of the Court of Appeal, Ilorin Division delivered on the 7th day of November, 2018. Coram: Ibrahim M. Saulawa JCA, Chidi Nwaoma Uwa JCA, and Hamma Akawu Barka JCA. The learned justices upheld the judgment of the trial Court that found the Appellant guilty of the two count charge of Criminal Conspiracy and Armed Robbery and sentenced him to death. The Appellant being dissatisfied with the judgment of the lower Court filed a Notice of Appeal on the 31st day of March, 2021.

The facts that led to this appeal are as follows: ​The Appellant and a co-Defendant were arraigned before the High Court of Justice Kwara State sitting at Ilorin presided over by Honourable Justice A.S. Oyinloye on a two count charge of Criminal Conspiracy contrary to Section 6(b) of the Robbery and Firearms (Special Provisions) Act, Cap R11, Laws of the Federation of Nigeria, 2004 and Armed Robbery contrary to Section 1(2) of the Robbery and Firearms (Special Provisions) Act, Cap R11, Laws of the Federation of Nigeria, 2004.

The Appellant pleaded not guilty to the charge and further told the Court that his statement was not voluntarily made by him. A trial-within-trial was conducted where the Appellant gave evidence that he was made to sign the said statement involuntarily. The Court however overruled his objection and admitted the statement in evidence.

The complainants in this case, i.e. one Saidu Ibrahim and one Hassan Ibrahim were robbed with the use of guns and cutlasses. The sum of N450,000.00 and 24,000 Cefas were stolen from them. One of the complainants was able to see the face of the Appellant and his co-defendant identified them because he knew them previously and their houses. They immediately reported the incident to the vigilantes who in turn arrested the culprits and handed them over to the police. Some of the money recovered from the Appellant and his co-defendants were part of the sum forcefully taken from the victims.

In the brief settled for the Appellant by Oluronke Adeyemi of counsel, three (3) issues were identified from the grounds of appeal, they are set out below: 1.

Whether the lower Court was right to have held that “from the manner in which the grounds 1 of the Notice of Appeal was couched, it did not question the admissibility of Exhibit P6, contained in the trial Court’s ruling of 4th March, 2015 following the trial within trial when the issue of voluntariness of the Appellant’s extra-judicial statement arose and was decided upon and therefore there is no appeal against the trial Court’s ruling that the extra-judicial statement made by the Appellant was voluntarily made and the decision admitting same as Exhibit P6” (Ground 1). 2.

Whether the lower Court was right when it held that there was no need to call the interpreter who gave evidence in the trial within trial back to give the same account of his interpretation in the main trial. (Ground 2) 3. Whether from the totality of the admissible evidence, the learned Justices of the Court of Appeal were right to have upheld the conviction and sentence of the Appellant for the offences of Conspiracy and Armed Robbery. (Ground 3).

The same issues albeit in different wordings were identified by learned Respondent’s Counsel Abiodun Dada Esq.

After reading the record, the germane issue for determination in this appeal in my view is to wit: Whether the learned lower Court was right to affirm the judgment of the learned trial Court wherein the appellant was convicted. ​ The Appellant complained about the holding of the Court below that from the manner in which Ground 1 of the Notice of Appeal to the Court of Appeal was couched it did not question the admissibility of Exh P6, the confessional Statement of the Appellant admitted on 4/3/15 after a trial within trial conducted during the course of the main trial.

The Appellant’s counsel complained that it was wrong of the Court below to decide that the grounds of appeal before the Court below did not suggest that the Appellant had a complaint against the ruling wherein the trial Court held that Exh P6 was voluntarily made and admitted same. Counsel argued that the first ground of appeal before the Court below including the particulars having mentioned the issue of involuntariness of the confessional statement as one of the complaints of the Appellant, it therefore becomes an issue that the Appeal Court was called upon to pronounce on.

Counsel cited NYAKO v. ADAMAWA STATE HOUSE OF ASSEMBLY & ORS (2016) LPELR-41822 (SC) ​ In paragraph 4:10 on Page 7 of the Appellant’s brief, counsel insisted that a Conjunctive reading of the Appellant’s ground one and the particulars of error would have established before the appeal Court that the main issue complained of by the Appellant was the voluntariness or otherwise of the alleged confessional statement.

Learned Appellant’s Counsel further argued that the Appellant’s grouse with Exhibit P6 is that it was not in compliance with the provision of the law which requires the statement to the police to be made under caution in the language spoken by the Appellant and in the exact words used by him and then translated into the language of the Court (English) since the Appellant is an illiterate. Counsel cited GUNDIRI v. NYAKO (2013) ALL FWLR Pt.698 Pg.816 at 828 Pg.856. Counsel also cited ZAKARI AHMED v. THE STATE (1999) 5 SCNJ 223.

On this point, the learned Respondent’s counsel argued that from the way ground 1 of the grounds of appeal donated at the Court of Appeal was couched, there was no challenge to the admissibility of Exh P6 and that the ruling which admitted same is still extant and binding on the Appellant.

Respondent’s counsel cited TUNDE ASIMI v. THE STATE (2016) LPELR-40436 (SC); (2018) 12 NWLR Pt.1527 Pg. 431.

Counsel also argued that the confessional Statement Exh P6 was admitted after a trial within trial which was properly conducted to determine the admissibility of same once the Court was satisfied with its voluntariness. Counsel cited YUSUF v. THE STATE (1976) LPELR- 3527 Pg. 9 (SC). Counsel submitted that the authorities cited by the Appellant’s counsel are irrelevant in the circumstances of this case.

My Lords on this point in contention, there is a misconception by learned Appellant’s counsel of the state of the law. The question relating to the admissibility of a confessional statement is different from the issue of a trial Court misdirecting itself on the probative value to give the retracted confessional Statement.

Ground 1 of the Notice of Appeal to the Court of Appeal reads thus: “The trial Judge erred in law when he convicted the Appellant for criminal conspiracy and armed robbery relying largely on the alleged confessional statement (Exhibit P6) of the Appellant and the evidence of PW1 only and this has occasioned a miscarriage of justice against the Appellant.”

Paragraph A of the Particulars of Ground 1 is set out below: “The appellant in the course of his trial stated before the Court that the said confessional statements were not made voluntarily by him and as such the trial judge ought to have been hesitant in basing his conviction upon same.”

Clearly, the ground of appeal and the particulars thereof relate to the probative value to be attached to the confessional statement rather than its intrinsic admissibility for being contrary to Section 29 of the Evidence Act. The point obviously made out by the ground of appeal is that the Appellant having retracted the statement even if it was admitted as evidence, should not have been used by the trial judge as one of the basis to convict him. The argument of the Appellant’s Counsel in paragraph 4:10 of the brief is completely misconceived.

On this point, the Appellant based his argument solely on particular 1 A of the grounds of appeal. In the circumstance I agree with the opinion of the learned lead judgment of the Court of Appeal on page 194 of the record per UWA JCA as follows: “The decision or order to admit the extra-judicial statement of the appellant is a decision or order that is appealable as in a judgment.

It is an interlocutory decision and appeal against same may be safely included in the appeal against the trial Court’s decision in the matter but, there was none in this case.” The Court went further on Pg. 195 to conclude as follows: “I hold that there was no appeal against the ruling following the trial within trial, same remains valid until set aside. It is deemed correct in absence of an appeal and the confessional statement also deemed properly admitted in evidence as voluntarily made.”

I agree unreservedly with the above conclusions of law. ​ The 2nd complaint made by the Appellant against the judgment of the Court below is that it was wrong of the Court below to hold that there was no need to call back the interpreter who gave evidence at the trial within trial to give evidence at the main trial of the same account of how he interpreted the extra-judicial statement made in vernacular to English for the benefit of the Appellant.

Learned Appellant’s counsel submitted that the interpreter TWTP3 should have been made available to give evidence at the main trial and failure to do so caused miscarriage of justice. See ALIU v. THE STATE (2015) ALL FWLR Pt.782 Pg 1706, at 1746, TAYO v. THE STATE (2016) ALL FWLR Pt.853 Pg 1729 at 1760, ASIMI v. STATE (2016) LPELR- 40436 (SC).

Counsel also cited MOHAMMED BELLO v. C.O.P. (2018) 2 NWLR Pt.1603 Pg.267 at 328-329. Counsel urged this Court to find that Exh P6 is inadmissible without calling the interpreter who interpreted it and this, being the basis of the Respondent’s case, the Respondent’s case cannot be sustained.

Learned Appellant’s counsel submitted that the trial within trial is a separate trial which ended with the Court’s ruling, thus the proceedings therein cannot be imported into the main proceedings. Counsel cited IFARAMOYE v. STATE (2017) ALL FWLR Pt.917 Pg. 1551 at 1589, SA’IDU v. STATE (2016) ALL FWLR Pt. 849 pg. 926 at 904.

Learned Respondent’s Counsel on the other hand argued that the interpreter, one Inspector Salami M who testified as TWTP3 was called as a witness during trial within trial. The onus to interpret the content of Exhibit P6 has been discharged in trial within trial by the interpreter one Inspector Salami M who testified as TWTP3, hence no further clarification is required that will warrant the recall of the interpreter.

The said Inspector Salami M had testified and given evidence of the steps he took in establishing the voluntariness of the said Exhibit P6 and the fact that he interpreted the statement made by the Appellant thereby removing any lacuna/doubt that may by occasioned in admitting as Exhibit and placing reliance on the said confessional statement.

My Lords, the Court below held on this point as follows on pg. 205 of the record: “On the confessional statement still, the learned counsel to the appellant had also faulted same, arguing that the interpreter was not called to testify in Court which rendered the confessional statement inadmissible. Exhibit P6 was interpreted by one Inspector Salami M. in English Language read over and translated to the Appellant in Hausa Language and vice versa. He testified as TWTP3 (Inspector Salami Mathew) in the trial within trial at page 47 – 48 of the printed records while one Sgt.

Opeoluwa Yakubu was the recorder who testified as TWTP1, page 44 – 46 of the printed records of appeal. The trial within trial is part of the proceedings of the trial Court. The TWTP3 gave a detailed account of where and how the statement of the Appellant was obtained, which was interpreted and understood before the appellant thumb printed on it. I am of the humble, but firm view that there was no need to call the interpreter back to give the same account of his interpretation.”

My Lords, there is no doubt that the law is that failure to call the interpreter of a confessional Statement as well as the person who recorded the statement as witnesses renders the confessional Statement inadmissible in Court. In the absence of the interpreter in Court, the document is regarded as documentary hearsay. See OLALEKAN v. THE STATE (2001) 12 SCNJ 94 Pg. 109 at 110, ODEKUNLE v. THE STATE (2015) LPELR-25766, IFARAMOYE v. THE STATE (2017) LPELR-42031 (SC).

Where the prosecution’s case is basely solely on a confessional Statement and the police officer who recorded it in the native language and the person or officer who interpreted it into English or vice versa were not called to give evidence on oath during the trial, the conviction has been held erroneous and liable to be set aside.

In respect of the point whether the evidence during the trial within trial suffices and the interpreter need not be re-called to give evidence of how the statement was taken during the main trial, there is no doubt that the rationale behind the requirement that the interpreter must be called is that given the fact that it is the interpreter who understands both the language spoken by the Defendant and the language understood by the officer who recorded the statement, it is the interpreter who can know exactly the circumstances under which the statement was taken, the types of questions asked the Defendant etc.

These questions and answers would determine whether the statement was voluntarily made, whether the Defendant was tricked into implicating himself etc. and reflected the exact contents of what the Defendant confessed to. The evidence of TWTW3 at the trial within trial regarding the circumstances under which the statement was taken satisfies the requirement that the statement reflected what the Appellant intended to say. Therefore, there was no need for a further confirmation of the circumstance, in which the statement was taken.

The legal implication of the statement being documentary hearsay has been removed by the testimony of the interpreter during trial within trial. The circumstances here are different from where no interpreter was called during the trial at any point to tell the Court the circumstances under which he did the interpretation and the questions put to the Defendant and the answers given which he put in the language of the Court or vice versa.

I agree with the Court below on this point that the general rule of law is not set in stone particularly where at some point at the trial the interpreter was called and the defence had an opportunity to cross-examine the officer on how the statement was taken and translated. ​ The other complaint relates to whether the prosecution proved the guilt of the Appellant beyond reasonable doubt. The appellant’s counsel urged the view that there was no eyewitness to the crime who gave evidence before the trial Court.

The only witness, an I.O.P. was not the initial police officer who investigated the crime, arrested the Defendants and recovered exhibits from them. The only thing the witness for the prosecution did was to tender the retracted confessional statement of the Appellant. Counsel argued that in criminal cases the onus of proof is fixed on the prosecution by Section 136(1) of the Evidence Act and that apart from the confessional statement Exh P6 there is absolutely no evidence on oath linking the Appellant with the crime.

Any doubt about whether in fact the Appellant committed the crime should be resolved in favour of the Appellant. Counsel cited YONGO v. POLICE (1992) 8 NWLR Pt. 257 Pg. 36, BABUGA v. THE STATE (1996) 7 NWLR Pt. 460 Pg. 279, EDOHO v. STATE (2003) F.W.L.R. (Pt.173) 29 Pg. 48, Paras A-C, OYEBODE v. GABRIEL (2013) ALL F.W.L.R.(PT.669) 1043 @ 1052 particularly Pg.1079, Paras. F, holden 17 and ADEYEYE v. STATE (2013) ALL FWLR (Pt. 704) 108 @ 111.

Learned Respondent’s Counsel argued that there cannot be better evidence than a confessional statement made voluntarily by the Appellant though retracted to prove the offence against a defendant in a criminal trial. Counsel argued that the confessional statement of the Appellant was a direct and positive admission of guilt and even though it was retracted needed no further corroboration. Counsel cited AKOGWU v. STATE (2017) 4-5 SC Pg. 4, ADAMU v. THE STATE (2016) ALL FWLR Pt. 852 Pg. 1551, HASSAN v. THE STATE (2017) ALL FWLR Pt. 890 Pg. 738 at Pg.753.

My Lords, the retracted confessional statement of the Appellant in Exh P6 was a direct, positive admission of guilt and thus cogent enough to sustain a conviction. This is because the statement meets the probability or credibility tests. P.W.1, the I.P.O. tendered the exhibits recovered from the Appellant and the Co-defendant at trial. The items, dane gun and money, tendered in Court as Exhibits were the same things the Appellant had admitted that he used and stole respectively in Exh P6 which were recovered from him during police investigation and handed over to P.W.1.

It is not wrong for a single police officer to tender in Court exhibits recovered from a Defendant and to give evidence of collective police investigation that led to the apprehension of the Defendant. The evidence of police investigation proved the guilt of the Appellant beyond reasonable doubt. ​ In the circumstances, the prosecution proved the case of conspiracy and armed robbery against the Appellant beyond reasonable doubt. Having given thorough scrutiny to the judgments of the two lower Courts, I cannot find them perverse in their reasoning and conclusion.

There is no reason to upset the concurrent findings of fact of the two lower Courts, I affirm the judgment of the lower Court which affirmed the judgment of the trial Court convicting the Appellant of conspiracy and armed robbery. Appeal dismissed.

CHIMA CENTUS NWEZE, J.S.C.: I have had the privilege of reading the leading judgment of my learned brother, Ogunwumiju, JSC, I agree with the conclusion that this appeal must fail.

In adherence to the general rule of this Court, we have declined to interfere with the concurrent findings of the two lower Courts as there are no substantial and compelling factors that justify a divergence from their reasoning and conclusions.

It is for these, and the more elaborate reasons in the leading judgment that I too shall enter an order dismissing this appeal as unmeritorious. Appeal dismissed.

AMINA ADAMU AUGIE, J.S.C.: I had a preview of the lead judgment just delivered by my learned brother – Ogunwumiji, JSC, and I agree with him that this appeal totally lacks merit. It is well-settled that findings on primary facts are matters within the province of a trial Court and there is a rebuttable presumption that a trial Court’s findings and conclusions on facts are correct, therefore, such findings are accorded due respect in appellate Courts – see Ibhafidon V.

Igbinosun(2001) 8 NWLR (Pt. 716) 653 SC, wherein this Court, per Karibi-Whyte, JSC, stated as follows – “It is a well-established principle that an appellate Court will very rarely, if at all, interfere with the findings of facts made by the trial Court. This is because such findings of fact enjoy the privilege of passing through the furnace of acrimonious cross-examination, the tooth comb scrutiny of the observation of the witnesses’ reactions and assessment of the veracity of their testimony.

Accordingly, such findings ought to be accorded due respect in appellate Courts, which did not have the advantage of the trial Judge.” So, findings of facts made by a trial Court, which passed through the furnace of acrimonious cross-examination, the tooth comb scrutiny of the observation of the Witnesses’ reactions and assessment of the veracity of their testimony; are accorded due respect in appellate Courts that did not have the advantage of the trial Judge, and that is exactly what the Court of Appeal did in this case – accord respect to the findings of fact made by the trial Court and affirm same.

It is for this and the other well-marshaled reasons in the lead judgment that I also dismiss this appeal and affirm the decision of the Court of Appeal. Appeal dismissed.

ABDU ABOKI, J.S.C.: I had the privilege of reading before now, a draft of the judgment written by my learned brother HELEN MORONKEJI OGUNWUMIJU, JSC. I agree with the reasons adduced and the conclusion, that this appeal lacks merit and ought to be dismissed. I only add a few words in support.

This appeal is against the judgment of the Court of Appeal sitting at Ilorin, delivered on the 7th of November, 2018, wherein His Lordships upheld the judgment of the Kwara State High Court delivered on the 27th day of April, 2017, presided over by A.S.

Oyinloye, J, which found the Appellant guilty of the two count charge of criminal conspiracy and armed robbery and sentenced him to death by hanging. ​ The background facts leading to this appeal, are that the Appellant as the 2nd Defendant at the trial Court, was arraigned for the offence of conspiracy contrary to Section 6(b) of the Robbery and Firearms (Special Provisions) Act Cap R11 LFN 2004 and Armed Robbery contrary to Section 1(2) of the Robbery and Firearms (Special Provisions) Act, Cap R11 LFN 2004.

The Appellant was alleged to have conspired with one Oseni Mamudu to rob and did rob one Saidu Ibrahim and Hassan Ibrahim while armed with a gun, of their valuables to wit: N450,000.00 (Four Hundred and Fifty Thousand Naira) and 24,000 Cefas in cash.

The two count charge was read and interpreted to the Appellant in Hausa language; he understood same and pleaded not guilty to the charge. To establish its case, the Prosecution called a sole witness, one Sergeant Opaluwa Yakubu (PW1) who was the Exhibit keeper as well as the investigator.

He tendered a dane gun, a cutlass, 2 caps and a Bond to produce a document executed by one Saidu Ibrahim, each was admitted and marked as Exhibits P1, P2, P3A, P3B and P4 respectively. ​ The PW1 testified that he investigated the alleged offence of armed robbery by taking the statement of the appellant which was tendered and admitted as Exhibit “P6”. Further, under cross-examination, the PW1 testified that he was not at the scene of the crime and that no incriminating item was recovered during his visit to the scene.

It was made out that the PW1 was not present when the Exhibits were recovered but, rather that the Exhibits were given to him by a former Investigating Police Officer (IPO). Also, that he did not personally arrest the Appellant and did not personally recover anything from him.

On the part of the Appellant who testified as DW2, he gave account of his movement on the day of his arrest to the effect that he was with their cattle in company of his younger brother and was accosted by a vigilante group on his way to Budo Sawa to buy some food. He explained his mission to them and his intention to return to their cattle grazing by the River after the purchase of some food. ​ It was established that, on a search by the vigilante group, only the sum of N1,000.00 (One Thousand Naira) and a plastic water bottle was found on him.

He was taken to the Police Station at Gwanara and later transferred to Ilorin Division. The Appellant as DW2, denied knowing the 1st Defendant and also denied ownership of the Exhibits. He also denied conspiring with anyone to rob. He denied sharing any money with anyone but, maintained that he had only the sum of N1,000.00 (One Thousand) found on him at the time of arrest.

At the close of the trial, the trial Court found the Appellant guilty of the two count charge, convicted and sentenced him to death by hanging.

The Appellant was dissatisfied with the judgment of the trial Court and appealed to the Court below, which dismissed the appeal, and affirmed the judgment of the trial Court.

The Appellant is still unhappy, hence his further appeal to this Court. In his brief of argument, three issues were formulated for by the Appellant, for the determination of this Court. They are: 1.

Whether the lower Court was right to have held that “from the manner in which the Ground 1 of the Notice of Appeal was couched, it did not question the admissibility of Exhibit P6, contained in the trial Court’s ruling of 4th March 2015, following the trial within trial when the issue of voluntariness of the Appellant’s extra-judicial statement arose and was decided upon and therefore there is no appeal against the trial Court’s ruling that the extra-judicial statement made by the Appellant was voluntarily made and the decision admitting same as Exhibit P6? 2.

Whether the lower Court was right when it held that there was no need to call the interpreter who gave in the trial within trial back, to give the same account of his interpretation in the main trial? 3. Whether from the totality of the admissible evidence, the learned Justices of the Court of Appeal were right to have upheld the conviction and sentencing of the Appellant for the offences of Conspiracy and Armed Robbery?

The Respondent in its brief of argument, also distilled three issues. They are: 1. Whether if the Appellant’s ground 1 of his Notice of Appeal at the Court below was couched in a manner that question the admissibility of Exhibit P6, was Exhibit P6 rightly admitted by trial Court after conducting trial within trial? 2. Whether the Court of Appeal was right in upholding/affirming the judgment of the trial Court without recalling the interpreter in the main trial, having been called during trial within trial? 3.

Whether from the totality of evidence adduced at the trial Court the Prosecution was able to prove the ingredients of the offences charged which the Court of Appeal can rely on in upholding the trial Court’s judgment?

The pith of this appeal is whether from the totality of evidence adduced at the trial Court the Prosecution was able to prove the ingredients of the offences charged, which the Court of Appeal relied on in upholding the trial Court’s judgment?

In is judgment, the Court below, wherein it was held that inter alia: “The law is that where an accused person makes an extra-judicial statement, admitting the commission of the offence with which he is charged, the statement will still be considered or taken into account in determining his guilt, irrespective of the fact that he had resiled from that evidence in his testimony at the trial, by giving testimony in Court contrary to the previous evidence.

Exhibit P6 was found to be voluntarily made to the police, it contains all the essential ingredients of the offence of armed robbery, the Appellant clearly confessed/admitted that he with his two friends/colleagues acted as one, conspired and did carry out the armed robbery for which he was tried and convicted. He gave account of the plans and execution of same, he also, gave details of how they shared their loot, what he got and handed over same on his arrest. The Appellant volunteered/gave himself in to the vigilante group when he was being looked for.

He willingly led the group to where the arms were kept, at Orii’s house from where they were recovered. He identified the gun that he used for the operation. The Appellant’s confessional statement alone, Exhibit P6 is enough to convict the Appellant. Exhibit P1 (a dane gun), Exhibit P2 (a cutlass), Exhibits P3A and 3B (two (2) caps) and Exhibit P4 (the bond to produce various sums of money) were admitted in evidence by the trial Court. These Exhibits were mentioned in Exhibit 6, tendered through the PWI who testified that Exhibits P1 – P3 were handed over to him by the previous IPO.

The learned trial judge at pages 125 – 126 held thus: “l think the position of the law is settled and that is that an Accused person can be convicted solely on the basis of his confession if it admits the guilt of the offence and not given to different interpretations.” I cannot fault the above view. The trial Court also, rightly held that the proof of the offence of criminal conspiracy could be inferred and indeed inferred proof of the offence from the acts of the appellant.

Further, on the armed robbery charge, Exhibit P6 connected. the Appellant with the money recovered and released on Bond, Exhibit P4. The Appellant stated clearly that the parcel was opened in his presence and the sum of 24,000 Cefas was part of the money he robbed with his colleagues. He also identified the dane gun recovered by the vigilante group from Orii’s house, as the one he (the Appellant) used during the operation.

The Appellant did not give an alternative place from where the Exhibits could have been obtained from and did not make out that he had nothing to do with the Exhibits in Exhibit P6. On the other hand, the defence did not give any explanation in respect of the Exhibits and how they came about if not as explained in Exhibit P6, the Appellant’s confession, coming from the horse’s mouth so to say.

I hold that the trial Court was right to have held that the prosecution proved both counts of the charge preferred against the appellant beyond reasonable doubt.” ​ I agree entirely with the reasoning and conclusion reached by the Court below which views I adjudge to be unassailable and which I adopt in toto.

Section 28 of the Evidence Act 2011, as amended, defined Confession as an admission made at any time by a person charged with a crime stating or suggesting the inference that he committed the offence.

In Akpa v. State (2008) 14 NWLR (Pt 1106) 72, it was held among others that an accused person can be convicted on his Confessional Statement alone when same is positive, direct and proved. See also Nweze v. State (2018) 6 NWLR (Pt 1615) 197. It is trite law that once a confessional statement has been made voluntarily, and it is direct, positive, unequivocal and clearly amounts to an admission of guilt, it can still ground a conviction regardless of the fact that the maker resiled there-from or retracted same completely at the trial. See Ubierho v.

The State (2005) 5 NWLR (Pt. 919) 644 SC, where this Court held that there is nothing sacrosanct about a confession, thus, the fact that an accused has retracted an confessional statement does not mean that the Court cannot act upon it. However, it is desirable to have some evidence outside the retracted confession before a conviction is based on the retracted confession.

In this case, the Appellant’s confessional statement, Exhibit P6 was made voluntarily, and it was direct, positive, and unequivocal and clearly amounts to an admission of guilt. It can ground a conviction and the two Courts below were right to so hold.

Based on the above and the fuller reasons enunciated in the Lead Judgment of my learned brother, HELEN MORONKEJI OGUNWUMIJU, JSC, I agree that there is no merit in this appeal. It is hereby dismissed by me.

The judgment of the Court of Appeal which affirmed the conviction and sentence of the Appellant to death, is further affirmed by me. Appeal dismissed.

EMMANUEL AKOMAYE AGIM, J.S.C.: I had a preview of the judgment of my learned brother, Lord Justice, HELEN MORONKEJI OGUNWUMIJU, JSC. I completely agree with the reasoning, conclusions, decisions therein.

Judgment

UWANI MUSA ABBA AJI, J.S.C. (Delivering the Leading Judgment) : The case of the Respondent is that PW1, Titilayo Adeyemo, knew the Appellant through a customer named Sylvester, for about 5 years before the incident because they used to buy goods from her. On 2/9/2011 at about 7 pm to 7:40pm, when there was electricity light, the Appellant with his gang of armed men attacked Mrs. Titilayo Adeyemo (PW1), her daughter and others in the shop of PW1, when he came to buy cigarette. When she bent down to pick the cigarette, she heard a gunshot fired by the Appellant.

The Appellant later snatched a bag from her containing a Bible, wrist watch and the sum of N180,000.00, which was by her side. The incident was subsequently reported to the Anti-Robbery Squad. She was asked if she knew any of the armed robbers and she mentioned the name of the Appellant, who was thereafter arrested.

​The Appellant’s case however was that he knew PW1 through her daughter (PW2), who used to sell alcoholic drinks at Adeolu Street, Ayedun quarters, Akure, where he used to visit PW2 as a lover. He alleged that he quarreled with PW2, who did not give him attention when he visited her that day because she was talking with another man for about 30 minutes. In another breath, he gave an alibi that he was with his mother in Eleyowo village, where they were tending to their farms on the day of the incident and was impossible for him to conspire with anybody.

The trial Court found the Appellant guilty for conspiracy and armed robbery. The lower Court quashed the conviction on conspiracy but affirmed the conviction for armed robbery, hence this appeal.

ISSUES: The Appellant’s two issues adopted by the Respondent read thus: 1. Whether the Court of Appeal was right in affirming the decision of the trial Court to the effect that the testimonies of PW1, PW2 and PW3 at the trial Court sufficiently demolished the Appellant’s defence of alibi given the varied inconsistencies in the testimonies of both PW1 and PW2. 2. Whether the Court of Appeal was right in affirming the decision of the trial Court to the effect that the Respondent has proved the charge of armed robbery against the Appellant beyond reasonable doubt.

I shall condense the two issues into one to be considered thus: Whether by the testimonies of PW1, PW2 and PW3, the Respondent has proved the charge of armed robbery against the Appellant beyond reasonable doubt.

ARGUMENTS: The submission of the Appellant’s learned Counsel is that the core evidence of PW1 and PW2 are replete with contradictions and inconsistencies that cannot be relied upon to convict the Appellant. He relied on ADEKUNLE OLUWAFEMI ALO V. STATE (2015) LPELR-24404. Also, that the failure to investigate the timeous and corroborated alibi of the Appellant was fatal to the case of the Respondent. He placed reliance on ADEYEMI V. STATE (2018) ALL FWLR (PT.929) AT 305-306, STATE V. ANI (2009) 16 NWLR (PT.1168) 443.

The learned Counsel further submitted that the confessional statement of the Appellant having being made in a language other than English and not signed by him ought not to be relied on to convict the Appellant. Besides, that the six tests for determining the veracity of a confessional statement was not followed by the lower Court in affirming the conviction of the Appellant. He urged this Court to resolve the two issues in favour of the Appellant and to allow the appeal and set aside the decision of the lower Court.

The Respondent’s learned Counsel submitted on the other hand that the defence of alibi is always demolished where the prosecution adduces evidence to fix the accused person to the scene of the crime. He quoted in support SHEHU V. STATE (2010) 2-3 SC (PT.1) 158, IKUEPENIKAN V. STATE (2011) 1 NWLR (PT. 1229) 499.

He maintained that the evidence of PW1 and PW2 pinned the Appellant to the scene of the crime thereby rendering futile his alibi. He asserted that the direct evidence of PW1 and PW2 on the identification of the Appellant as one of the persons that robbed them was direct, positive and credible to prove ingredients of armed robbery against the Appellant. He prayed this Court to dismiss the appeal.

RESOLUTION: The ingredients of the offence of armed robbery are that: (i) That there was a robbery or a series of robberies; (ii) That each robbery was an armed robbery; (iii) That appellant was one of those who took part in the robberies. The elements above have to co-exist and established beyond reasonable doubt. See AWOSIKA VS THE STATE (2010) 9 NWLR (PT. 1198) 40 AT 71-73.

​The Appellant as usual, denied the armed robbery and introduced alibi. Hence, the need for the Respondent to prove the commission of the crime against him. In proving armed robbery against the Appellant, the 3 ways of proving a crime in Court must be resorted to, which are: (1) Direct evidence. (2) Confessional statement/statements made by the accused, and (3) Circumstantial evidence. See Per NGWUTA, JSC, in BILLE V. STATE (2016) LPELR- 40832(SC) (P. 15, PARAS. A-B).

The direct/eyewitness evidence of PW1 to the police was repeated in her oral testimony to the Court when at pages 18-19, she stated as follows: …I know the 1st and 2nd accused but I do not know the 3rd accused. I have known the 1st and 2nd accused for at least five years. The two were coming to buy goods from me. I know them through another customer who introduced them to buy from me. The person who linked me with the 1st and 2nd accused was an Ibo man Sylvester. I remember 2nd September, 2011. It was around 7 pm I was in my shop.

There were some other people in the shop that time we were up to four people. Tosin Adeyemi was in the shop (sic) she is my daughter. The 1st accused came into the shop. He requested to buy cigarette. I bent down to take the cigarette he requested for… l heard a gunshot. It was Tosin Asekere that fired the gun. I fell down. The first accused put on a muffler and a black overall that day. He also said Ave! Ave! and the 2nd accused also was present that night. He also said Ave! Ave! The 1st accused then snatched my handbag which was beside me. There were at least six of them that night.

There was electricity in my shop that night. There was N180,000.00 in the bag. It was a contribution I collected. There was a Bible, my wristwatch and other things in the bag that the 1st accused snatched from me that night…

The above oral testimony in Court did not derogate or contradict her statement to the police contained at pages 7- 8 of the record, Under cross examination at page 19, she affirmed inter alia thus: …I have had other customers before the 1st accused came to my shop at 7 pm. I shut down after the robbers left… l am certain that the 1st accused was among those who robbed me. He shouted Ave! Ave! and the others rushed to my shop. There was girl among the robbers but I did not see her face… l am only certain of the presence of the 1st and 2nd accused among the robbers.

I cannot identify the others… The 1st accused… was the person who took my bag…

PW2, Tosin Adeyemi, at pages 21-22 of the record testified in Court as follows: I got to know the 1st accused about three to four years ago when he was coming to my mother’s shop… The 1st accused was coming to visit Sylvester at our area and I became acquainted with him. 1st accused had been coming to our shop before the day of the incident… I was eating when the 1st accused came to ask for Benson cigarette my mother PW1 was trying to sell the cigarette to the 1st accused when there was a gunshot. The 1st accused then shouted Ave! Ave! and some other people came to where we were.

The 1st accused dressed in mafia dress and he had a red beret on that night. The 2nd accused was one of those who came to our shop… l have known him for a long time at Ayedun quarters where we live. The bag of my mother was taken… There was electricity that night. I know they were between six and eight that came that night. There was a woman among them. She put on a two quarter trouser and a top and she had a cross bag on her body. But I cannot identify her.

Under cross examination at page 22, she debunked her love affairs with the Appellant and further revealed amongst others that “The 1st accused had never proposed to be my lover…l have a fiancé and he was present that night. My fiancé did not give statement to the police… I have no issue of any kind with the 1st accused that will make me to lie that he committed armed robbery. The 1st accused never talked to me about love let alone asking me to be his wife…”

On the investigation of the alleged alibi put up by the Appellant, PW3 testified at page 27 of the record thus: …We went to Eleyowo without the 1st accused to investigate the alibi of the 1st accused. He gave us address of his mother at Eleyowo. We did not see the mother of the 1st accused to interview. The mother of the 1st accused later came to us at the office. That was when we wanted to charge the case to Court. The mother of the 1st accused did not categorically say that the 1st accused was with her on the day the robbery took place…

​I must not gloss over the defence of Alibi by the Appellant. His alibi was corroborated by his sister as DW1 and his mother as DW2. See pages 31-33 of the record. They both affirmed that the Appellant was with them at Eleyowo in the farm when the armed robbery took place. The trial Court at pages 100-102 considered the alibi of the Appellant vis-a-vis the evidence of DW1, DW2 and DW2 and found them unreliable and unsupportive to the case of the Appellant.

I have considered also the judgment of the lower Court on the defence of alibi put forward by the Appellant at page 200. The lower Court also emphasized on the strength of the evidence of PW1 and PW2 pinning down the Appellant to the scene of the armed robbery to demolish the alibi of the Appellant. An alibi is not one of the ways of proving a crime but a defence available to the accused. Thus, it is not a direct or eyewitness account except the circumstances prove it so.

It is mostly a circumstantial evidence that must always bow and subject itself to an uncontradicted and credible evidence of an eyewitness or direct evidence.

​I make bold to state here that the Appellant has shot himself on the foot when he raised the defence of alibi and co-opted others to corroborate it. Their testimonies are but a farce and a mockery of evidential and factual prove of a crime. Whether the Respondent investigated the Appellant’s alibi or not is not relevant or worth considering.

At page 9 of the record, the Appellant made his statement to the police that “On the second of September 2011, I was with my mother at Eleyeowo, I went there to help my mother in her farm work and I came back to Akure on the 18th of September 2011.” There is an adage in Hausa that says “if he that spoken a thing is a fool, the hearer is not a fool like him.” Subsequently at pages 35-36 of the record, wherein the Appellant testified in Court, he exposed amongst others that “I later went to PW’s shop one evening to see PW2. I saw PW2 talking to a man. The man was a timber lorry driver.

The man apparently was dating PW2. I asked PW2 what was the matter. She said everything was alright. PW2 said I should let her have her phone. I gave it to her, She was talking with other man without giving me any attention. This was on for about thirty minutes. I became angry and I went to PW2 to collect my phone. She did not want to give it to me, I snatched it from her. As I was going, PW2 held my shirt. My shirt got torn. I slapped PW2. PW2 then held me. PW1 now came to where I and PW2 were struggling. PW1 was pushed. She fell down and she dislocated her limb.

I was at Eleyowo village on 2nd September, 2011. I was with my mother and we were tending to our farms…”

The Appellant cleverly introduced a strikingly, contrary and contradictory evidence from the alibi he earlier alleged in his statement to the police, supposedly to extricate himself from the alleged offence. The law is trite that once an accused person’s confessional statement is voluntary and true but inconsistent with his evidence in Court, a Court may convict. See Per OLABODE RHODES-VIVOUR, JSC, in JAMES SIMON V. THE STATE (2017) LPELR- 41988(SC) (PP. 17-19, PARAS. F-A).

Furthermore, where there is direct evidence linking an accused with the commission of the offence, he can safely be convicted for the commission of the said offence. See Per ONU, JSC, in AIGUOREGHIAN & ANOR V. STATE (2004) LPELR-270(SC) (P. 20, PARA. F). The evidence of PW1 and PW2, being direct and positive have indeed proved the guilt of the Appellant beyond reasonable doubt. Thus, in the order of priority of evidence to prove a crime after confessional statement, direct evidence is superior to circumstantial evidence. This was emphasized in ADIO V.

THE STATE (1986) 2 NWLR (PT.24) by per Oputa JSC. In law, where there is direct evidence linking an accused with the commission of the offence as in the present appeal where the Appellant was directly identified and fixed to the armed robbery, he can safely be convicted for the commission of the said offence. See Per ONU, J.S.C, in AIGUOREGHIAN & ANOR V. STATE (2004) LPELR- 270(SC) (P. 20, PARA. F). The direct and eyewitness evidence of PW1 and PW2 has not been impugned or discredited by the bogus alibi of the Appellant.

​On the defence of alibi raised by the Appellant, apart from the fact that the Appellant himself has watered it down, it cannot stand where there is direct evidence countering it, even when it is not investigated. What will be investigated is what is not certain but what is certain needs no further investigation. It is settled law that where an accused raised a defence that his alibi was not investigated, he can still be convicted if there is stronger and credible evidence before the Court which falsified the alibi. See Per SYLVESTER UMARU ONU, JSC, in AIGUOREGHIAN & ANOR V.

STATE (2004) LPELR- 270(SC) (PP. 20-21, PARAS. G-C). This issue is definitely resolved against the Appellant. The appeal grossly fails and is hereby dismissed.

MUSA DATTIJO MUHAMMAD, J.S.C.: I agree with my learned brother UWANI MUSA ABBA AJI, JSC, that this appeal completely lacks merit. The appellant insists on an alibi. The evidence on record puts him at the scene of the crime beyond contention. I adopt the fuller reasons given in the lead judgment to dismiss the unmeritorious appeal.

CHIMA CENTUS NWEZE, J.S.C.: My Lord, Abba Aji, JSC, obliged me with the draft of the leading judgment just delivered. I agree with His Lordship that this appeal lacks merit. It therefore deserves to be dismissed. I propose to add only a few observations on: a. Concurrent findings; b. Identification evidence; and c. Contradictions in evidence.

​As a matter of Practice, the Supreme Court is always hesitant to interfere with or disturb the concurrent findings of the trial Court and the lower Court, except where such findings are perverse, or misapplication or misconception of law is prevalent, Bassey v The State [2019] 12 NWLR (pt. 1686) 348, 376; paragraphs E-G; Iyaro v The State [1988] 1 NWLR (pt. 69) 256; Onitilo v The State [2018] 2 NWLR (pt. 1603) 239.

In this case, both Courts were concurrent in finding the appellant guilty of Armed Robbery despite his defence of alibi. The onus therefore lies on the appellant to give very good reasons why this Court should interfere in the findings arrived by the two lower Courts, Muhammad v The State [2017] 13 NWLR (pt. 1583) 386; Jibrin v Federal Republic of Nigeria (2018) LPELR-43844(SC). As Ademola, CJN, rightly observed in the case of Omisade v The Queen [1964] NSCC (Vol. 3) 170 “…it is not the function of this Court to retry a criminal case on appeal.”

He further stated that: “if there was evidence before the trial Judge from which he could reasonably have come to the conclusion which he did, the verdict must stand.”

​In the instant case, the appellant has not furnished the Court with any exceptional circumstance o r reason at all as to warrant interfering with the concurrent findings of both lower Courts.

On the issue of identification evidence, the law is trite that whenever a Court is faced with identific ation evidence, it must ensure and be satisfied that the evidence proves beyond reasonable doubt that the accused person before the Court was the person who actually committed the offence with which he is charged. There ought not to be a doubtful identification of a culprit.

It must also be stated that Identification Parade is not mandatory for identification in all cases where there has been a momentary encounter with a victim of a crime, especially where there are other pieces of evidence leading conclusively to the identity of the perpetrator of the offence, Aliyu v The State [2007] All FWLR (pt. 388) 1123; Alabi v The State [1993] 7 NWLR (pt. 307) 511; Ebenezer v The State [2020] 8 NWLR (pt. 1727) 573.

On the issue of contradictions, it must first be stated that whether there were contradictions in evidence of witnesses, it is primarily the duty of the trial Court to determine, and if there were, it is that Court’s duty to advert to them and take them into consideration in the evaluation of the credit of the witnesses, Igbi v State [2000] 3 NWLR (pt. 648) 169.

Furthermore, it is not in all cases that once the defence avers contradictions or conflicts in the evidence of prosecution, that same is fatal to the prosecution’s case, John Agbo v The State [2006] 1 SCNJ 332, 342; The State v Danjuma [1997] 5 N WLR (pt. 506) 512. Contradictions in evidence which do not affect the substance of the issue is irrelevant. The contradiction that would make an appellate Court disbelieve the prosecution witnesses must be on a material point in the case, capable of upturning the decision of the trial Court.

Minor or miniature contradictions which do not touch on any of the ingredients of the offence charged will not be of any moment, Enahoro v The State [1965] NSCC (Vol. 4) 98, 113; Isibor v The State [2002] 4 NWLR (pt. 758) 741; Sele v The State [1993] 1 NWLR (pt. 269) 276; Jimmy v The State [2013] 18 NWLR (pt. 1386) 229. In this case, the contradictions that the appellant alleges are only mere discrepancies in the accounts and testimonies of PW1 and PW2 for which no serious premium deserves to be placed on same.

​It is for these, and the more elaborate reasons in the leading judgment, that I too shall enter an order dismissing this appeal as unmeritorious.

HELEN MORONKEJI OGUNWUMIJU, J.S.C.: I have read before now the judgment just delivered by my learned brother UWANI MUSA ABBA AJI, JSC. I am completely in agreement that the appeal is devoid of merit and should be dismissed.

This is a case of armed robbery wherein two of the prosecution witnesses, one of whom was the victim, clearly identified the Appellant who was well known to them. The prosecution witnesses stated that there was electricity in the shop where they were attacked by the Appellant leading a gang of other people.

Not only that, the prosecution witnesses who were eye witnesses to the crime mentioned the names of the Appellant and one other person at the earliest opportunity to the Police.

​The Appellant raised the defence of alibi which was adequately investigated by the Police. I find no reason to upset the findings of the trial Court who had the opportunity of hearing and seeing the prosecution witnesses and who believed their own version of the story rather than the version of the Appellant and his witnesses who swore that he was on the farm on the day in question. Where an eyewitness evidence directly and unequivocally pins the Defendant to the scene of crime at the time the crime was committed, the alibi cannot be a viable defence to the crime.

In this case, the alibi of the Appellant supported by his mother and younger sister was completely demolished by the eyewitness evidence of PW1 and PW2 who were victims of the crime and who knew the Appellant well before the date of the offence. In the circumstance, this appeal fails. It is hereby dismissed.

The judgment of the Court below is affirmed with its order of conviction and sentence imposed on the Appellant. Appeal Dismissed.

ADAMU JAURO, J.S.C.: I read in draft the lead judgment of my learned brother, Uwani Musa Abba Aji, JSC just delivered. I am in agreement with the reasoning and conclusion contained therein, to the effect that the appeal is unmeritorious and ought to be dismissed. I adopt the said judgment as mine and join my learned brother in dismissing the appeal.

Judgment

ADAMU JAURO, J.S.C. (Delivering the Leading Judgment): This appeal is against the judgment of the Court of Appeal, Abuja Judicial Division wherein the Court dismissed the Appellant’s appeal against the judgment of the High Court of Niger State which found the Appellant guilty of culpable homicide punishable with death under Section 221 of the Penal Code.

BRIEF STATEMENT OF FACTS The lone count upon which the Appellant was tried and convicted at the trial Court is as follows: “That you Friday Christopher, on or about the 7th day of September, 2013 in Korokpa village via Chanchaga within Minna Judicial Division committed the offence of Culpable Homicide punishable with death to wit: while Charity Emmanuel and Miracle Emmanuel were sleeping in the room at Korokpa village via Chanchaga LGA of Niger State, you Friday Christopher carried Miracle Emmanuel out of the bedroom to parlour and strangled her with your hand which you knew death would be the probable and not only a likely consequence of the act and you thereby committed an offence punishable under Section 221 of the Penal Code.”

​In a bid to prove the charge, the Respondent called two witnesses and tendered the Appellant’s confessional statements as exhibits A and B. The Appellant on his part, called four witnesses, including himself and tendered no exhibit.

The case of the prosecution was that on 6th September, 2013, one Charity Emmanuel, the Appellant’s aunt came with an 18 months old baby Miracle Emmanuel from Kaduna to visit the Appellant’s mother, Monicah Christopher in Minna, Niger State at her home where the Appellant also resides. On the first night she spent with them, the deceased, Miracle Emmanuel was crying throughout the night and this prevented them from sleeping. The following day, in the night, the Appellant took the baby from the room where she was and strangled her to death.

It was the Respondent’s case that the Appellant left the house after committing the offence and was found in a nearby bush.

​The Appellant on his part denied committing the offence. His case was that he was with DW2 on 7th September, 2013 to dig a soakaway pit and that DW2 left when the person who asked them to dig the pit did not show up, but he stayed behind. The Appellant stated further that he was at the place where they were to dig the soak away pit when the police came to arrest him.

At the conclusion of trial and after the adoption of final addresses, the learned trial Judge delivered a considered judgment wherein he found the Appellant guilty and sentenced him accordingly. Aggrieved by the judgment of the trial Court, the Appellant appealed to the lower Court, albeit unsuccessfully.

Dissatisfied by the decision of the lower Court which affirmed his conviction and sentence, the Appellant now seeks, by this appeal to exhaust his fight of appeal. The Appellant identified three grounds of appeal in his Notice of Appeal by which the appellate jurisdiction of this Court was triggered.

In line with the rules and practice of this Court, parties filed and exchanged their respective briefs adopted at the hearing of this Court on 20th January, 2022.

​MR. PHILLIP K. EMMANUEL, ESQ. on behalf of the Appellant distilled two issues for the determination of the appeal in the Appellant’s brief of argument dated and filed on 14th August, 2019. The said issues are hereunder reproduced as follows: “1. Whether on all the established facts in this case, the proper verdict which ought to have been returned by the Court of Appeal against the Appellant was not one of discharge and acquittal and a further order for medical examination of his mental state of health. (Distilled from ground 1 of the Notice of Appeal). 2.

Whether by the tenor of Appellant’s extra-judicial statements embodied in exhibits “A” and “B”, and the defence of insanity was raised which needed thorough consideration by the trial Court and if in the affirmative, whether the failure to so consider has prejudiced the Appellant and consequently led to a miscarriage of justice. (Distilled from grounds 2 and 3 of the Notice of Appeal).”

On behalf of the Respondent, M.G. CHIROMA ESQ., Director of Public Prosecutions, Ministry of Justice, Niger State raised a sole issue in the Respondent’s brief of argument dated 14th October, 2019 and filed on 15th October, 2019. The sole issue raised by the Respondent is as follows: “Whether the prosecution did not prove its case beyond reasonable doubt at the trial Court which convicted the appellant and sentenced him to death to justify the affirmation of the said conviction and the sentence by the Court below?”

ARGUMENTS OF COUNSEL Both issues distilled by the Appellant’s counsel were argued together. It was submitted that had the trial Court considered Exhibit B properly, it would find that the said exhibit revealed the defence of insanity, even without same being raised by the Appellant. Reliance was placed on AHMED V. STATE (2000) FWLR (PT. 34) 438. That a calm consideration of the exhibit and the circumstances under which it was made would reveal that the trial Court erred by not considering the defence of insanity on behalf of the Appellant.

He submitted that PW2 himself admitted that no proper investigation was conducted into the matter and that there was no Superior Police Officer available to countersign Exhibit B, hence the trial Court ought to have discharged and acquitted the Appellant. The case of KADA V. STATE (1991) 8 NWLR (PT. 208) 134 was relied on.

​Learned counsel further submitted that, the fact that there was no malice between the Appellant and his aunt who brought the deceased baby or between the Appellant and the deceased is an indication that the Appellant was suffering from mental infirmity to have strangled the deceased. That from the Appellant’s confessional statements and the circumstances under which they were made together with counsel’s interaction with him in prison custody, it is clear that he is suffering from mental infirmity and the Courts below ought to have availed him of the defence of insanity.

He urged this Court to exercise its power under Section 22 of the Supreme Court Act to discharge and acquit the Appellant and order for a medical examination into his mental state. He relied on Section 51 of the Penal Code applicable to Niger State as well as the following cases: KADA V. STATE (1991) 8 NWLR (PT. 208) 134; NWANKWOALA V. STATE (2006) ALL FWLR (PT.339) 801; STATE V. JOHN (2013) 12 NWLR (PT. 1368) 337; OJO V. STATE (1973) NSCC 590; SOKOTO V. THE STATE (1976) NSCC 96; SAKA V. THE STATE (2008) 3 NCC 145; EJINIMA V. THE STATE (1991) 7 SC (PT. 111) 1; PETER V.

STATE (1997) 12 NWLR (PT. 531) 1; SANUSI V. THE STATE (1984) 10 SC 166; EDOHO V. STATE (2010) 14 NWLR (PT. 1214) 651.

​He finally urged this Court to allow the appeal, set aside the judgment of the Court below, acquit and discharge the Appellant in the overall interest of justice.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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In response to the Appellant’s submissions, counsel for the Respondent submitted that the Respondent proved all the ingredients of the offence charged beyond reasonable doubt through the Appellant’s confessional statements Exhibits A and B as well as through circumstantial evidence. That proof beyond reasonable doubt does not mean proof beyond all shadow of doubt. Reference was made to Section 135 of the Evidence Act, 2011 as well as the cases of AJAYI V. STATE (2013) 9 NWLR (PT. 1360) 589; BASSEY V. STATE (2012) 12 NWLR (PT. 1314) 209.

He submitted that the Appellant was represented by counsel all through the proceedings at the trial Court but the defence of insanity was not raised, therefore it was not the duty of the trial Court to raise the Defence suo motu. Counsel citedJOHN V. THE STATE (2012) NWLR (PT. 1299) 336 and submitted that every person is presumed to be of sound mind at every time and to be responsible for his acts of omissions. That it is the duty of the Appellant to raise a defence to the charge against him, and once he has done so, it would be the duty of the Court to consider same in its judgment.

​Counsel submitted that the Appellant was in a good state of mental health when he committed the offence and that explains why he hid in the bush after committing the act, as an insane person would not have escaped into the bush. It was also submitted that the defence of insanity must be specifically raised, not impliedly. In response to the Appellant’s submission that the Appellant had no motive to kill the deceased, counsel submitted that the Appellant himself said in his confessional statement that he killed the baby because she used to cry in the night and prevent him from sleeping.

It was further submitted that the Appellant cannot belatedly raise the defence of insanity in this Court, having not raised same before the lower Courts. Counsel further submitted that none of the Appellant’s witnesses said anything at trial that alluded to his alleged insanity. He noted that the Appellant stated in Exhibit B that he did not regret killing the deceased and that no one in his family behaved abnormally. He finally urged the Court to dismiss the appeal.

RESOLUTION Having considered the arguments canvassed by counsel on either side as well as the issues distilled for determination by them, it is evident that the fulcrum of this appeal is whether the defence of insanity ought to avail the Appellant.

It is elementary to state that the appellate jurisdiction of this Court is provided for under Section 233 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). To ignite the appellate jurisdiction of this Court, an Appellant has to file a notice of appeal containing grounds of appeal challenging the decision of the Court of Appeal.

The grounds of appeal as encapsulated in the Appellant’s notice of appeal must be targeted at the ratio decidendi of the judgment being appealed against. See K.R.K. HOLDINGS (NIG) LTD. V. FBN (2016) LPELR-41463 (SC); GTB V. INNOSON NIGERIA LTD (2017) LPELR-42368 (SC); YUSUF & ANOR V. STATE (2019) LPELR-46945 (SC). ​Notwithstanding, there are couple of instances where an Appellant can be allowed to raise grounds of appeal on issues not canvassed and determined in the judgment of the lower Court.

Such instances are where the Appellant raises a ground of appeal bordering on jurisdiction and/or where the Appellant seeks the leave of the appellate Court to raise and argue fresh issues on appeal. In the absence of the two instances stipulated above, any ground of appeal must find its source firmly footed in the judgment of the Court being appealed against.

In the instant appeal, the Appellant’s counsel surreptitiously raised the defence of insanity for the first time in this Court. The Appellant’s counsel made noise on the failure of the trial Court to consider the defence of insanity in favour of the Appellant. I should state for the umpteenth time that this Court does not have the jurisdiction to hear and determine appeals from the trial Court. See AG ANAMBRA V. AG FEDERATION (2007) LPELR-24343 (SC).

​Right from trial, up to the Court below, the Appellant fought restlessly on the defence of alibi. Out of the 5 grounds of appeal in his notice of appeal to the Court below, there was nowhere it was stated that the trial Court ought to consider the defence of insanity in favour of the Appellant. Even though it is trite that a trial Court ought to consider any defence that will otherwise be available to the accused, in the instant case, there was no appeal to the lower Court on the defence of insanity.

The law is trite that a party must be consistent in the presentation of his case. See CHUKWUNYERE V. STATE (2017) LPELR-43725 (SC); AJIDE V. KELANI (1985) LPELR-302 (SC); COMPTROLLER GENERAL OF CUSTOMS & ORS V. GUSAU (2017) LPELR-42081 (SC); SUBERU V. STATE (2010) LPELR-3120 (SC); AGI V. PDP & ORS (2016) LPELR-42578 (SC).

An appeal is a reflective medium for challenging a judicial decision where no party, including the appellate Court is taken by surprise. It is a judicial exercise aimed at dispassionately reviewing all essential points attacked in the judgment being appealed against and not an avenue for an Appellant to bring appalling grounds of appeal to test a palpably ridiculous claim.

​The ignorance of the Appellant’s counsel was unequivocally brought to fore in paragraph 4.12 of the Appellant’s brief wherein it was stated as follows: “Unfortunately, those aspects which ought to have been pleaded before the trial Court as a fact finder were not raised before that Court. Be that as it may, we humbly submit that in order to do substantial justice in this case, this Honourable Court possesses the statutory powers under Section 22 of the Supreme Court Act ​to order for the medical examination of the Appellant in order to ascertain his mental state of health.”

Going by the above submission of the Appellant’s counsel, it is apparent that counsel does not understand the purport of Section 22 of the Supreme Court Act. This Court would be stepping outside its appellate borders by ordering for the medical examination of the Appellant in order to ascertain his mental state of health as urged by the Appellant’s counsel.

In my view, the Appellant is surreptitiously trying to use the institution of this Court to adduce further evidence on appeal. Without further ado, I hold that the Appellant’s issues regarding the defence of insanity which were not raised in the Court below and not borne out of the judgment of the Court are liable to be discountenanced. In the absence of leave to raise fresh issues in this Court, the Appellant is precluded from raising the defence of insanity or any submission relating thereto in his brief of argument.

​I ought not to have wasted my time in summarizing the submissions and arguments of the Appellant’s counsel in the first place, however by so doing, I have been able to bring to fore the issues canvassed, with the aim of laying the proper foundation for throwing out this appeal out of the windows of this Court.

The law is trite that the ground of appeal is the foundation of every appeal as it constitutes an Appellant’s complaint against the judgment appealed against. The ground of appeal also gives information of the precise nature of an Appellant’s complaint and ensures fairness to the other side: See SARHUNA V. LAGGA (2009) ALL FWLR (PT 455) 1617 @ 1636 (S.C.).

The conclusion of all I have been saying is that the submission of the Appellant’s counsel on failure of the trial Court to consider the defence of insanity in favour of the Appellant is not well-founded in this Court. All the submissions and arguments of the Appellant in this regard are therefore discountenanced.

On the whole, I hold that this appeal is unmeritorious and same is hereby dismissed. The conviction of the Appellant for the offence of culpable homicide punishable with death and the sentence of death imposed on him by the trial Court and affirmed by the lower Court is hereby further affirmed.

OLUKAYODE ARIWOOLA,  J.S.C.: I had the opportunity of reading in draft, the lead judgment of my learned brother Adamu Jauro, JSC just delivered. I agree entirely with the reasoning and conclusion of the lead judgment that the appeal lacks merit and liable to be dismissed. Accordingly, it is dismissed by me. Appeal dismissed.

EJEMBI EKO, J.S.C.: The Appellant was arraigned before the Niger State High Court, charged with culpable homicide punishable with death under Section 221 of the Penal Code Law of Niger State, He was tried on the information. On 5th September, 2016 the trial High Court returned a verdict of guilty. Upon his conviction for the capital offence charged, the Appellant was sentenced to death.

At the trial, the prosecution produced and relied heavily on the Appellant’s confessional statements, Exhibits A & B. In Exhibit A the Appellant stated- I went to my mother room and met Charity and the baby by name Miracle sleeping on the mat, while my mother is on the bed sleeping. I also carry the baby by name Miracle out of the room without the knowledge of Charity and my mother. I went with her inside parlour. I also used my hand and hold her neck to death.

​He subsequently made Exhibit B which was substantially in pari materia with Exhibit A and stated thus- They were sleeping in the inner room with my mother, Charity and the little girl. My mother was on the bed while they were on the floor. I used my left hand to press her on the neck while she was lying down sleeping until she died before I removed my hand on her neck. I took her from the inner room to parlour that was where I killed.

The rather callously bizarre manner the dastardly act was executed must have startled and prompted the investigator (the PW.2) to ask whether the Appellant was normal or insane? The Appellant offered the answer in Exhibit A thus- I am sound. I do not have any mental problem.

Section 51 of the said Penal Code Law offers the statutory defence of insanity. It provides- 51. Nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is incapable of knowing the nature of the act, or that he is doing what is either wrong or contrary to law.

​The Appellant, represented at the trial by a Counsel, never once raised the defence of insanity. This is apparently consistent with his averment in Exhibit A that he was of sound mind and that he did not have any mental problem. Sanity, from Exhibits A & B, was presumed. It was for the defence, rebutting the presumption of sanity or soundness of mind, to plead and establish insanity or the unsoundness of mind such as made him “incapable of knowing the nature of the act, or that he (did) what is either wrong or contrary to law”.

When the defence of insanity or diminished responsibility is raised, the burden on the defendant to establish that defence is not as heavy as that which rests on the prosecution to establish the guilt of the defendant beyond reasonable doubt. However, the defence shall lead evidence material to the conclusion that, on the balance of probability, he was of unsound mind at all times material to the commission of the offence charged: R. v. DUNBAR (1958) 1 Q. B. 1.

The Appellant’s Counsel submitting on what, in common law jurisdictions, is known as borderline abnormalities, asked – what must have informed the act of the Appellant in the circumstances of the case at hand? Indeed even the Investigating Police Officer- Kabir Seidu (PW.2) was startled by the confession and had to ask the Appellant on his past history since the witness did not take the Appellant for medical check-up to ascertain his mental health, he truthfully told the Court that he did investigate the case properly.

In the instant case, the defence never at all raised the defence of insanity or borderline diminished responsibility i.e borderline abnormalities. The trial Court and the lower Court were left with no fact on which to consider borderline abnormalities that may have resulted in the alleged Appellant’s diminished responsibilities or unsoundness of mind. No witness for the defence raised any issue of insanity.

Thus from the defence evidence, it cannot be said that the burden of establishing the Appellant’s insanity, if the defence was ever raised, consistent with Sections 131, 135(3), 139 and 140 of the Evidence Act 2011 was discharged.

The said provisions are herein below reproduced, to wit- 131. (1) Whoever desires any Court to give judgment as to any legal or liability dependent on the existence of facts which he asserts shall prove that those facts exist. (2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. 135. (1) … (2) … (3) if the prosecution proves the commission of crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted to the defendant. 139. (1) Where a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any exception or exemption from or qualification to, the operation of the law creating the offence with which he is charged is upon such person. (2) The burden of proof placed by this part upon a defendant charged with a criminal offence shall be deemed to be discharged if the Court is satisfied by evidence given by the prosecution, whether on cross-examination or otherwise, that such circumstances in fact exist. (3) Nothing in Sections 135 and 140 or in Subsection (1) or (2) of this Section shall- (a) prejudice or diminish in any respect the obligation to establish by evidence according to law any acts, omissions or intentions which are legally necessary to constitute the offence with which the person accused is charged: (b) impose on the prosecution the burden of proving that the circumstances or facts described in Subsection (2) of this Section do not exist: or (c) affect the burden placed on a defendant to prove a defence of intoxication or insanity. 140.

When a fact is especially within the knowledge of any person, the burden of proving that fact is upon him.

Notwithstanding my foregoing postulations, there is a fundamental issue that bedevils the appeal. This issue of the defence of insanity is a fresh issue being raised in this Court for the first time as of right and without leave of Court first sought and granted. It was not raised either at the trial Court or the lower Court.

In his appeal at the lower Court, vide the Notice of Appeal at pages 148-152 of the Record, the statutory defence of insanity was not made an issue as could be seen from the 5 rounds of appeal complaining, to wit – 1. The learned trial Judge erred in law when he heavily relied upon the confessional statements and convicted the Appellant. 2. The learned trial Judge erred in law when he held that “I have also considered the alibi raised by the accused during trial which in my view was an afterthought.” 3.

The learned trial Judge erred in law and came to a wrong conclusion when he held that “in the circumstances of this case, it can be inferred that the deceased died from strangulation meted on her by the accused person”. 4. The learned trial Judge erred in law when he relied on the evidence/testimony of the PW.1 (Inspector Elisha Dandare) in reaching his decision which occasioned a miscarriage of justice to the Appellant. 5. The decision of the trial Court is unwarranted, unreasonable and cannot be supported in law having regard to the evidence adduced at trial.

The appeal, at the lower Court, was determined only on the 5 issues distilled from the 5 grounds of appeal, as can be seen from page 233 of the Record.

In raising, for the first time, the fresh issue of insanity under Ground one polymerised to such an elusive elasticity the Appellant’s counsel had apparently misconceived the dictum of this Court in STATE v. JOHN (2013) 12 NWLR (pt. 1368) 337 at 355, and Section 22 of the Supreme Court Act. This Court in STATE v. JOHN (supra) did state – The well settled position of law is that in a charge of murder after the Court considers the defence raised by the accused person, the Court should go extra mile to consider other defences available to the person on the facts established in the trial Court.

As I earlier pointed out in this judgment “the facts established in the trial Court” did not, in any way disclose that the statutory defence of insanity was available to the trial Court to consider in favour of the Appellant, as the defendant before it. ​The jurisdiction and powers of the Court of Appeal (the lower Court), circumscribed by the grounds of appeal and the issues for determination of the appeal distilled therefrom, do not include it, quixotically stepping into the affray or arena of dispute between the parties and doing the fight of either party.

Section 17(2)(e) and 36(1) of the Constitution 1999, enjoining the Court to maintain its “independence, impartiality and integrity” and observing the principle of “nemo judex in causa sua”, do not permit a Court of law to raise a defence for a party. The trial Court and the intermediate Court would only consider a “defence available to the person on the facts established in the trial Court”.

Similarly, the appeal Court would consider defences available to the accused if such defences which though visible ex facie had, on the facts, been established at the trial Court, had not been considered by the trial Court. The dicta of this Court in STATE v. JOHN (supra); OJO v. STATE (1973) 11 SC 331 do not empower the Courts to take the cases before them beyond the contemplation of the parties.

In the same way; the powers vested in the Supreme Court by Section 22 of the Supreme Court Act, 2004, hinge on the operative clause – “The Supreme may, from time to time, make any order necessary for determining the real question in controversy in the appeal,…”. Thus the Supreme Court cannot, and it is not so empowered to, go beyond the real question in controversy in the appeal and determine issues totally extraneous and alien to the appeal.

The two issues argued in this appeal are fresh issues, having not been issues either at the trial Court or the lower Court. Appeal is by way of rehearing. It is an invitation to the higher Court to find out whether on proper consideration of the facts and the applicable law the lower Court arrived at a correct decision: OREDOYIN v. AROWOLO (1989) 4 NWLR (pt. 114) 172 (SC) at 172; IWEKA v. SCOA (2000) 3 SC 21 AT 31; ADEOSUN v. GOVERNOR OF EKITI STATE & ORS (2001) 8 NWLR (pt. 714) 200 (SC).

That is why: apart from being loathe, an appellate Court is not in a position, to determine the correctness or otherwise of an issue not raised and determined in the Court(s) below: ADEOSUN v. GOVERNOR OF EKITI STATE (supra). Raising this fresh issue without leave of Court, being an abuse of Court’s process; being an improper use of a procedure or legal process with no iota of law supporting it: SARAKI v. KOTOYE (1992) 9 NWLR (pt. 264) 156; R-BENKAY (NIG.) LTD v. CADBURY (NIG.) PLC (2012) 9 NWLR (pt. 1306) 596 at 617.

This alone entitles me to dismiss the appeal on the issue. Even on the merits; I agree with my learned brother, ADAMU JAURO, JSC, whose judgment (just delivered) I endorse and adopt, that the appeal lacking in substance be dismissed. Appeal dismissed.

UWANI MUSA ABBA AJI, J.S.C.: The Respondent’s case is that on 6/9/2013, one Charity Emmanuel, the Appellant’s aunt, came with an 18-month old baby, Miracle Emmanuel, from Kaduna to visit the Appellant’s mother, Monicah Christopher, in Minna, Niger State, at her home, where also the Appellant resides. On the 1st night, Miracle Emmanuel, the deceased, cried throughout the night and prevented them from sleeping. In the night of the following day, the Appellant took the baby from the room where she was and strangled her to death; left the house and was found in a nearby bush.

The Appellant nevertheless denied it and alleged that he was with DW2 on 7/11/2013, to dig a soak away pit. DW2 left when the person that requested their labour did not come, but he stayed behind and was later arrested by the Police. At the conclusion of the trial, he convicted and sentenced accordingly. On appeal by the Appellant, the case was dismissed, hence this appeal.

​The Appellant has raised the defence of insanity for his discharge and acquittal to the crime committed. Unfortunately, this is a fresh issue coming up for the first time before this Honourable Court, which the Appellant never saw the need to pursue from the onset. An appeal is akin to pleadings and the Court and parties cannot be taken by surprise to present a fresh issue without leave of the Court.

An appellate Court will not generally allow a fresh point to be taken before it if such a point was not raised and pronounced upon by the Court below, unless of course, the question involves substantial points of law and no further evidence needs be adduced to determine the matter and such a course of action is necessary to prevent an obvious miscarriage of justice. See AKPABIO V. STATE (1994) 7 NWLR (PT. 359) 635 SC, SHAIBU V. STATE (2017) LPELR-42100(SC) (PP. 10-12 PARAS. E).

Raising the defence of insanity for the first time before this Honourable Court is an afterthought and a clear indication that the Appellant has no defence to the crime he committed.

I therefore agree with my learned brother, Adamu Jauro, JSC, that the appeal be dismissed for being unmeritorious. The appeal is hereby dismissed.

MOHAMMED LAWAL GARBA, J.S.C.: I have had the opportunity to read a draft of the leading judgment written by my learned brother, Hon. Justice Adamu Jauro, JSC, in this appeal and I agree with the views that the appeal is wanting in merit.

​The three (3) grounds contained on the Appellant’s Notice of Appeal dated the and filed on the 2nd July, 2019 (which appears at pages 263-266 of the Record of Appeal) are as follows:- “GROUND ONE: 1. The lower Court erred in law by affirming the trial Court’s verdict under Section 221 of the Penal Code instead of Culpable Homicide non-punishable with death under Section 224 of the Penal Code. PARTICULARS OF ERROR a.

Appellant’s extra-judicial statements to the police embodied in Exhibits “A” and “B” raise a possible defence of provocation which needed thorough investigation as to the Appellant’s mental stability and psychological di  sposition to noisy environment. See pages 7-8 and 64-67 of the Record of Appeal. b. The PW2 (Kabiru Saidu) stated that he only investigated the case briefly and not thoroughly as investigated was not properly carried out. See page 72 of the Record of Appeal. c.

A proper evaluation of all the extenuating circumstances ought to have mitigated the Appellant’s punishment by having him sentenced under Section 224 of the Penal Code instead of Section 221 of the Penal Code. GROUND TWO: 2. The lower Court erred in law when it affirmed the decision of the trial Court which held as follows:- “Having perused exhibits A and B, and having considered the circumstances under which they were recorded and admitted in evidence, I am satisfied that the two confessional statements have satisfied the conditions recited in the above case and can in law ground a conviction.

On the whole therefore, I hold as a fact that the prosecution has proved its case beyond reasonable doubt against the accused person.” PARTICULARS OF ERROR a. The trial Court in arriving at the above holding heavily relied on the position of this Honourable Court in CHUKWUKA OGUDO V. STATE (2011) 18 NWLR (PT. 1278) 1 AT 30 PARAS C-E where My Lords restated the basic fundamentals of a valid statement capable of grounding conviction in criminal trial. b.

In the instant case, exhibit “B” was not counter-signed by a superior police officer as required by law as per the above cited authority/decision. c. The trial Court in the course of the judgment said: “There is no doubt that the two prosecution witnesses in this case are both police officers involved in the investigation of the case. They were not eye witnesses to the commission of the alleged offence. In fact, the testimony of both prosecution witnesses proceeded directly from confessional statements (Exhibits A and B) made by the accused person in the course of investigation.” d.

Similarly, no independent, credible corroborative evidence proffered to scrutinize the two confessional statements in accordance with the laid down tests as settled by this Honourable Court in a plethora of authorities including but not limited to CHUKWUKA OGUDO V. STATE (SUPRA). GROUND THREE 3. The judgment of the lower Court is unwarranted, unreasonable and cannot be supported having regard to the evidence.”

As can easily be observed, the complaint in the body of ground one, is general and imprecise, though concise. The particulars (a), (b) and (c) essentially complain about alleged poor investigation of “a possible defence of provocation.”

On its part, ground two complains about the confessional statements by the Appellant which were admitted as Exhibits A and B as to whether they are capable of grounding the conviction of the Appellant.

​Ground Three, being omnibus, is general in terms.

The two (2) issues formulated in the Appellant’s brief, have been set out in the leading judgment and are as follows:- “1. Whether on all the established facts in the case, the proper verdict which ought to have been returned by the Court of Appeal against the Appellant was not one of discharge and acquittal and a further order for medical examination of his mental state of health”. (Distilled from ground 1 of the Notice of Appeal). 2.

Whether by the tenor of Appellant’s extra-judicial statements embodied in exhibits “A” and “B”, the defence of insanity was raised which needed thorough consideration by the trial Court and if in the affirmative, whether the failure to so consider has prejudiced the Appellant and consequently led to a miscarriage of justice”. (Distilled from ground 2 and 3 of the Notice of appeal).

​The law is settled in the appellate Courts that issues for determination in an appeal against the decision of a lower Court must inure, arise from and be distilled from the grounds of the appeal which contain the real complaints against the decision of the lower Court. Where any issue submitted to the appellate Court for determination does not arise from and is not reasonably traceable to any of the valid grounds of the appeal, such issue would be invalid and incompetent for the appellate Court to consider and determine on the merit. See Nasiru v. State (1999) 2 NWLR (pt. 569) 87, Akpan v.

FRN (2012) 1 NWLR (pt. 1281) 403, Amadi v. NNPC (2000) 6 SC (pt. 1) 66, Nwosu v. Imo State Env. Sanitation Agency (1990) 2 NWLR (pt. 135) 688, Shitta-Bey v. A. G., Federation (1989) 10 NWLR (pt. 570) 392, Garba v. State (2000) 4 SCNJ.

​As has been ably demonstrated in the leading judgment, and shown above, the substance of the two (2) issues formulated for the Appellant and indicated to have been distilled from the three (3) grounds of the appeal, are not derivable and traceable to the grounds because they deal with a failure by the two lower Courts to consider a supposed and purported defence of mental disability or insanity of the Appellant at the time of the commission of the offence he was convicted for.

From the Record of Appeal, the defence was not raised before the lower Courts and is not reasonably disclosed in the evidence adduced at the trial Court for the duty of the trial Court to have considered same in its judgment or the Court below to have dealt with same in the appeal before it on the basis of the grounds contained on the Notice of Appeal.

That being the position, the law does not permit the Appellant to raise and submit at this stage, issue/s not raised before the lower Courts and not pronounced upon by them, not being an issue of jurisdiction, for the first time without the leave of Court. Babalola v. State (1989) 4 NWLR (pt. 115) 264, Uor v. Loko (1988) 2 NWLR (pt. 77) 430, Dagaci of Dere v. Dagaci of Ebwa (2006) 7 NWLR (pt. 979) 382, Friday v. Governor, Ondo State (2012) LPELR-7886, Obiakor v. The State (2002) 10 NWLR (pt. 612) 525, (2002) SCNLR, 193, Oseni v. Bajulu (2009) 18 NWLR (pt. 1172) 164.

In the above premises, I agree that this Court lacks the competence to adjudicate on issue(s) not raised and canvassed before the two (2) lower Courts in respect of which the leave of Court was not obtained to be raised as a new or fresh issue not arising or related to the grounds of an appeal before it.

For the above and the cogent reasons set out in the leading judgment, I too dismiss the appeal being devoid of merit.

Judgment

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C. (Delivering the Leading Judgment): On 26/3/2012, the respondent sought to arraign the appellant and four others before the High Court of Anambra State, Awka Judicial Division on a two-count charge of conspiracy to commit murder and attempted murder.

Although the charges were read and interpreted to them, they declined to plead thereto on the ground that they had a pending motion challenging the competence of the charge. The motion dated 4/5/2010 was brought pursuant to Section 36(6) of the Constitution of the Federal Republic of Nigeria, 1999, as amended and Sections 212, 240, 241 and 247 of the Criminal Procedure Law (CPL) of Anambra State.

They sought the following reliefs: “An Order: (I) Dismissing or striking out the Proofs of Evidence in this matter as incompetent and an abuse of the Court’s process, (2) Quashing the information as incompetent for failure to contain the proper proofs of evidence as required by Section 211(a) of the Criminal Procedure Law. (3) Dismissing/Striking out the proceedings for violating the applicants’ fundamental right to fair hearing. (4) Quashing the information as the Court lacks jurisdiction to try the offences as they were brought in violation of the applicants’ constitutional right to fair hearing. (5) Quashing the arraignment of the applicants on the information before this Court as the information is incompetent and unsupported by proper proofs of evidence.

And granting such further orders/reliefs as this Honourable Court may deem, just and proper in the circumstances.”

The application was supported by a 22-paragraph affidavit and exhibits attached thereto marked A-F. The applicants filed a written address in support. The respondent filed a counter-affidavit and also filed a written address thereto.

​The applicants were initially arraigned before the Magistrates Court Awka in Suit No. MAW/ 1940/07. Having regard to the nature of the charges, the Court declined jurisdiction and referred the matter to office of the Director of Public Prosecution. The prosecution informed the Court that it intended to call 12 witnesses to testify and supplied their details. The Court therefore made an order binding them over to make themselves available to testify before the High Court wherever they were required to do so.

It was the applicants’ contention at the High Court, that of the 12 witnesses bound over, the prosecution only included five in the proof of evidence filed along with the information. It was contended that the failure to include the names, addresses and statements of the remaining 7 witnesses, whom they considered to be material witnesses rendered the information defective and liable to be quashed. In particular, it was contended that the statement of an independent eye witness, one Alice Nweke, who informed the Police that the applicants were not the perpetrators of the crime, was omitted.

They also contended that exculpatory statements made by some of the witnesses were not included. They argued that by withholding the statements of material witnesses, their right to be given adequate facilities for the preparation of their defence, guaranteed by Section 36(6) (b) of the 1999 Constitution, as amended, had been breached. They also contended that the information deserved to be quashed for being in violation of Sections 212, 240, 241 and 247 of the CPL of Anambra State.

​The prosecution denied withholding any evidence. They averred in their counter-affidavit that the said eye witness, Alice Nweke, could no longer be traced. It was also contended that by their information, they are only required to show that there is a prima facie case made out, requiring some explanation from the accused. They also argued that the application was an abuse of the Court’s process, aimed at delaying the hearing of the case.

In a brief ruling delivered on 10/9/2012, His Lordship J.C Iguh, J. dismissed the application in the following words: “I have carefully considered the application, the affidavit in support, together with the exhibits thereto, arguments of the learned counsel for the applicants, counter-affidavit together with the exhibits thereto and arguments of the learned counsel for the respondent and it seems to me that the applicants have not made a case that would warrant the grant of the application. The application accordingly fails and is hereby dismissed.”

​The applicants were aggrieved by the decision and filed an appeal before the Enugu Division of the Court of Appeal. In a considered judgment delivered on 28th July, 2015, the appeal was dismissed. The ruling of the learned trial Judge was upheld.

The appellants are still dissatisfied and have further appealed to this Court. Their Notice of Appeal filed on 27th August, 2015 contains 6 grounds of appeal.

At the hearing of the appeal on 18/2/21, Dr. E.S.C. Obiorah adopted and relied on the appellant’s brief filed on 10/12/19 and his reply brief filed on 8/3/19 in urging the Court to allow the appeal. P.A. Afuba Esq. adopted and relied on the respondent’s brief filed on 7/4/16 in urging the Court to dismiss the appeal.

Learned counsel for the appellant distilled a single issue for determination thus: Whether the failure of the Proof of Evidence to contain the statutorily mandated facilities, as compelled by Sections 220(f) and 146 of the Administration of Criminal justice Law of Anambra State, 2010, rendered both the Proof of Evidence and the underlying amended Information incompetent and also constitutes a violation of the appellant’s fundamental right? (Grounds 1, 2, 3, 4, and 5).

The respondent formulated two issues, namely: (1) Did the respondent substantially comply with the relevant provisions of the Administration of Criminal Justice Law of Anambra State, 2010, in preparing the proofs of evidence upon which the information filed against the appellant was based? (Grounds 3, 4 and 6). (2) Whether the Court of Appeal was right in sustaining the information filed against the appellant having found that the alleged violation of the appellant’s fundamental right to fair hearing was not made out? (Grounds 1, 2 and 5).

The appellant’s single issue conveniently encompasses the two issues submitted by the respondent. I shall therefore adopt the sole issue for the resolution of the appeal.

Sole Issue Learned counsel for the appellant submitted that the law is trite that failure to comply with the mandatory provisions of a statute in performing a statutory duty or carrying out any public function renders any action taken in violation of that statute incompetent and a nullity. He referred to several authorities, including U.N.T.H.M.B. Nnoli (1994) 8 NWLR (Pt. 363) 376 @ 401-413: N.N.P.C. VS. Tijani (2006) 17 NWLR (Pt. 1007) 29 @ 45: Gov. of Ebonyi State Vs Isuama (2004) NWLR (Pt. 870) 511 @ 533.

He submitted that while Section 220(f) of the ACJL provides that an “information shall contain Proofs of Evidence” Section 146 sets out what the proofs shall consist of. The Section provides: “146.

The proofs of evidence shall consist of – (a) Statement of the charge against the defendant, (b) The name, address, statement of any material witness whom the prosecution intends to call; (c) the names, address and statement of any material witness whom the prosecution does not intend to call; provided that the submission of such names shall not prevent the prosecution from calling any such witness at the trial if the prosecution later so desires; (d) the copy of any report, if available, made by a doctor about the state of mind of a defendant in custody; (e) record of conviction, if any, affecting the credibility of any witnesses for the prosecutor; (f) statements of the defendant; (g) an inventory of all exhibits to be produced to the Court at the trial; and (h) any other statement or document which the prosecution may consider relevant to the case.” (Underlining mine)

​Learned counsel submitted that there is a world of difference between the liberty of the prosecution to call any witness it desires and the duty to disclose the name, address and statement of any material witness whom the prosecution does not intend to call, the statement of the defendant and all the exhibits to be produced to the Court at the trial. He argued that the first scenario is discretionary and has no relevance to the present case, while the second scenario is mandatory and constitutes a condition precedent for the existence of a valid proof of evidence.

He submitted that the use of the word “shall” in Section 146 of the ACJL connotes mandatoriness. He referred to Gov. of Ebonyi State Vs Isuama (Supra). He submitted that the Court has a duty to stop any prosecution that violates the law or which, on the facts, creates abuse or injustice. See: Ezeze Vs. The State (2004) 14 NWLR (Pt. 894) 491 @ 504-506.

He submitted that in the instant case, the information and proof of evidence which omitted the statements of 7 material witnesses, the complaint against the appellant to the police, photographs of the incident and inventory of exhibits are incompetent ab initio and should be quashed.

​On who is a material witness, he submitted that a material witness is a witness whose evidence might influence the decision of the Court on an issue in the prosecution of the case. He referred to the definition provided in Black’s Law Dictionary, 8th Edition, 2004 and the case of Ikemson vs. The State (1989) NWLR (Pt. 110) 455 @ 474. He submitted that the test for determining the materiality of a witness is objective, not subjective. He submitted that the yardstick is the opinion of a reasonable man.

He submitted that the lower Court erred in holding that it is the prosecution that can determine whether a witness is material or not for the purposes of the contents of the proof of evidence. He argued that if this were the correct position, there would not have been any need for the enactment of Section 146(b) and (c) of the ACJL. He submitted that, in any event, the prosecutor had shown that 12 witnesses were material when he applied for them to be bound over during the remand proceedings at the Magistrates Court.

​He submitted that the only reason for the omission of 7 of the witnesses previously bound over is to prejudice the appellant and to deprive him of their statements, which would have facilitated his defence. Apart from listing the names of the witnesses and the statements allegedly withheld, he submitted that the prosecution also failed to list the exhibits to be relied upon including photographs taken at the scene. He submitted that the Court has a duty to prevent an abuse of its process by striking out the defective proof of evidence.

He referred to Abacha Vs The State (2002) 11 NWLR (Pt. 779) 437 a 485.

Relying on a recent decision of this Court in Okoye vs C.O.P. (2015) 17 NWLR (Pt. 1488) 276 @ 314 F-H, he submitted that the refusal of the respondent to avail the appellant with the necessary materials to facilitate his preparation for his defence, constitutes a violation of his fundamental right to fair hearing as enshrined in Section 36(6)(b) of the 1999 Constitution, as amended. He also referred to: Kenon Vs Tekam (2001) 14 NWLR (Pt. 732) 12 @ 41: Kalu vs F.R.N. (2014) 1 NWLR (Pt. 1389) 479: Ogboh vs F.R.N. (2002) 10 NWLR (Pt. 774) 21.

He submitted that the respondent’s refusal to accede to the appellant’s request, despite repeated demands. He referred to Udo vs The State (1988) 1 NSCC (Pt. 19) 1163 @ 1172 for the contention that Section 36(6)(d) of the 1979 Constitution (which is in pari material with Section 36(6) of the 1999 Constitution) is a provision of “equal opportunities for both the prosecution and the defence” and therefore the prosecution will not be allowed to have sole access to evidence. He referred to: Orisakwe Vs Governor of Imo state (1982) 3 NCLR 743 @ 758.

Learned counsel submitted that the prosecution should not be allowed to benefit from its illegality. He referred to: Odedo Vs INEC (2008) 17 NWLR (Pt. 1117) 554 @ 623; Teriba vs Adeyemo (2010) 13 NWLR (Pt. 1211) 242: Lafia Local Govt. Vs Gov. of Nassarawa State (2012) 17 NWLR (Pt. 1328) 94.

In response, learned counsel for the respondent submitted that there was substantial compliance with the provisions of the ACJL. He referred to Sub-paragraphs (b) and (c) of Section 146 of the law and the proofs of evidence at pages 115-138 of the record, which contains the names, addresses and statements of 5 witnesses. He submitted that what the law requires is the names, addresses and statements of material witnesses.

He placed emphasis on “material.” He argued that it is not the requirement of the law that the name, address and statement of every person who made a statement to the police must be included but only that of a material witness. He urged the Court to give effect to the word “material” as used in Sub-sections (b) and (c) in its plain and ordinary meaning. He referred to: Okotie-Eboh Vs Manager & Ors. (2004) LPELR-2502 (SC); (2004) 18 NWLR (Pt. 905) 242.

He submitted that where the words of a Statute are clear and unambiguous, the duty of the Court is to apply them in their simple and ordinary meaning. He referred to: Fawehinmi Vs I.G.P. (2000) 7 NWLR (Pt. 481) 503: Awolowo vs Shagari (1979) 6-9 SC 73; (1979) ALL NLR 120: Agwuna vs A.G. Federation (1995) LPELR-258 (SC): (1995) 5 NWLR (Pt. 396) 418.

On who is a material witness, learned counsel referred to: Akpan vs The state (1991) NWLR (Pt. 182) 646, where it was held that a witness is material where he can help resolve the facts in dispute between the contending parties. He referred to Section 147 of the ACJL and submitted that at the stage of preparation of the proof of evidence, there must be a determination as to which witness statements are material and which are not.

He referred to: Uket vs F.R.N: (2007) LPELR – (CA), where His Lordship, Rhodes-Vivour, JCA (as he then was) held that the purpose of proof of evidence is to give the accused person an opportunity of knowing what the prosecution witnesses were coming to Court to say against him. See also: Abacha vs The State (2002) 11 NWLR (Pt. 779) 437.

He submitted further, that by Section 145 of the ACJL, it is the statutory duty of the Attorney-General and the law officers in the Public Prosecutions Department of the Ministry of Justice to prepare proofs of evidence in criminal trials. He submitted that it is these officers who can determine which witness statements are material and those that are not. He argued that it is not the province of the appellant or his counsel to appropriate to themselves the said statutory function.

He referred to the Police Investigation Report at pages 126-127 of the record, where it was stated that all efforts to reach and obtain a statement from the alleged good Samaritan who allegedly broke the news of the incident in the village, proved unsuccessful. He submitted, as regards to the binding-over order made by the learned Magistrate, that the exercise of the Attorney-General’s statutory powers cannot be fettered or circumscribed by the action of the police prosecutor in the Magistrate’s Court.

He submitted that any act by the Police prosecutor is subject to the overriding decision of the Attorney-General. He referred to Section 165 of the ACJL.

Learned counsel submitted that the powers of the Attorney General in respect of criminal prosecution are traceable to Section 211 of the 1999 Constitution, as amended. He referred to: Ezomo Vs A.G. Bendel State (1986) NWLR (Pt. 36) 448 and submitted that he is not subject to any control. He submitted further that copies of the statements could still be availed the appellant upon the proper application to the Court.

​He submitted that the appellant has not alleged that the proofs of evidence, as they stand, do not disclose a prima facie case against him. He submitted that non-disclosure of a prima facie case is a major ground for quashing an information. He contended that the non-inclusion of statements of some persons made to the police in the course of investigation cannot be a basis for the quashing, of an information. He relied on the persuasive authority of Wabara & Ors. vs FRN (2010) LPELR-4940 (CA) per Mary Peter-Odili, JCA (as he then was).

As regards the contention that the appellant’s fundamental right to fair hearing was breached, learned counsel set out the prayers sought in the applicants’ motion seeking to quash the information (reproduced earlier in this judgment). He observed that there was no prayer seeking to compel the prosecution to provide the facilities they required for their defence. He argued that in the absence of a prayer to that effect being refused, the appellant could not contend that his right to fair hearing was breached. He referred to: Inakoju Vs Adeleke (2007) 4 NWIZR (Pt. 1025) 423 @ 475.

Learned counsel noted that the applicants had issued a notice to produce the omitted statements, exhibited to their application as Exhibit F. He submitted that the essence of a notice to produce is to enable the party applying to tender secondary evidence of the relevant documents. He referred to: Buhari Vs Obasanjo (2005) 13 NWLR (Pt. 941) 1. He also referred to the counter-affidavit wherein it was averred that the basis for the demand for some of the documents is non-existent.

He submitted that the duty to ensure compliance with Section 36(6) of the 1999 Constitution, as amended, is on the Court and not the prosecution. On what amounts to fair hearing and the duty of the Court in respect thereof, he referred to: A.G. Benue State vs Umar (2008) 1 NWLR (Pt. 1068) 311 @ 351 (CA).

Learned counsel submitted that the issue of lack of fair hearing can only be used to nullify a decision at the conclusion of trial and should not be used as a ploy to truncate the proceedings in limine. He submitted that the issue was raised prematurely in the circumstances of this case. In support of his argument that a trial must have taken place before the issue of lack of fair hearing could be raised, he referred to: Okafor Vs A.G. Anambra State (1991) 6 NWLR (Pt. 200) 659; Pam & Anor. vs Mohammed & Anor. (2008) LPELR-2895 (SC).

He distinguished the facts of Okoye Vs C.O.P. (Supra), relied upon by the appellants, from the facts of this case. He submitted that in Okoye’s case, there was an application before the Court for the prosecution to make the statements of some witnesses available which was granted at the Magistrate’s Court and affirmed on appeal to High Court. He noted that it was on further appeal to the Court of Appeal that the order granted was set aside. It was however restored by this Court. He submitted that Okoye’s case cannot therefore be an authority in the instant appeal.

In reply on points of law, learned counsel submitted that it is not correct, as contended by the respondent, that by Section 146(c) of the ACJL, the Attorney General has the sole discretion as to who is a material witness. He submitted that the essence of the provision is to actualize and fulfill the mandate of Section 36(6) (b) of the 1999 Constitution, as amended.

He referred to Okoye Vs C.O.P. (Supra) and submitted that the requirement is to prevent the mischief of a prosecutor attempting to conceal facts and misleading the Court to an erroneous decision and to give both sides an even playing field. He submitted that a party who suppresses evidence cannot be allowed to benefit from his own wrong. He referred to: Odedo Vs INEC (2008) 17 NWLR (Pt. 1117) 554 @ 623; Teriba VS Adeyemo (2010) 13 NWLR (Pt. 1211) 242: Adedeji vs Obajimi (2018) 16 NWLR (Pt. 1644) 146.

He submitted further that the duty imposed on the Attorney General as prosecutor by Section 146(c) of the ACJL has a corresponding correlation to the right vested in the appellant, as an accused person, entitling him to the full complement of the proofs of evidence, which must contain the particulars of witnesses and their statements, whether the prosecution intends to call such witnesses or not.

Learned counsel submitted that there is no statutory or adjectival law that permits the Attorney General to misuse his powers. Relying on Abacha vs The State (2002) 11 NWLR (Pt. 779) 437 @ 485 and Edet vs The State (2008) 14 NWLR (Pt. 1106) 52, he submitted that the Courts have inherent powers to prevent abuse of power and abuse of judicial process in order to safeguard the accused from oppression.

With regard to the Notice to produce, he submitted that what the applicants requested was beyond a mere notice to produce as provided for in Section 91 of the Evidence Act.

He submitted that the applicants gave notice to the respondent to produce the required statements for inspection, photographing, copying or testing in fulfilment of the provisions of Section 146(c) of the ACJL. ​He contended that a notice to produce under Section 146 (c) is constitutional and unlike the notice under the Evidence Act, it is not presupposed that the applicants have secondary evidence of the required information in their possession. He submitted that the authority of Nweke Vs The State (2017) 15 NWLR (Pt. 1567) 120, is inapplicable in the present circumstances.

He argued that there is no basis for the contention that an application must have been made to the Court before the applicants could insist on their rights. He asserted that any violation of Section 146(c) of the ACJL renders all actions, including the filing of the information in charge No. A/57C/2008 and the proceedings therein a nullity.

A good place to commence the resolution of this issue is to consider the provisions of Section 36 (6) (b) of the 1999 Constitution, as amended and Section 146 (c) of the ACJL of Anambra State. Section 36 (6)(b) of the Constitution provides: 36(6) Every person charged with a criminal offence shall be entitled to - (b) to be given adequate time and facilities for the preparation of his defence.

​Section 146 of the ACJL has been reproduced earlier in this judgment. For emphasis, Sub-section (c) provides that the proof of evidence shall consist of, inter alia: (c) the names, address and statement of any material witness whom the prosecution does not intend to call; provided that the submission of such names shall not prevent the prosecution from calling any such witness at the trial if the prosecution later so desires.” (Underlining mine).

The bone of contention in this appeal is the meaning of the underlined phrase above in the context of Section 36 (6) (b) of the 1999 Constitution, as amended, and who determines who a material witness is. In Newswatch Communications Ltd. vs Atta (2006) 12 NWLR (Pt. 993) 144 @ 170-171 H-A and at 181-182 H-A, this Court held: per Niki Tobi, JSC: “The constitutional principle of fair hearing is for both parties in the litigation. It is not only for one of the parties.

In other words, fair hearing is not a one-way traffic but a two-way traffic in the sense that it must satisfy a dual carriage-way in the context of both the plaintiff and the defendant or both the appellant and the respondent. The Court must not invoke the principle in favour of one of the parties to the disadvantage of the other party undeservedly. That will not be justice. That will be injustice.” Per Mahmud Mohammed, JSC: “There is no doubt at all that the principle of fair hearing is fundamental to all Courts’ procedure and proceedings.

Like jurisdiction, the absence of it vitiates proceedings, however well conducted… Fair hearing according to the law envisages that both parties to a case be given opportunity of presenting their respective cases without let or hindrance from the beginning to the end… Fair hearing in accordance with the law also envisages that the Court or Tribunal hearing the parties’ case should be fair and impartial without showing any degree of bias against any of the parties.”

​As noted above, Section 146 of the ACJL requires the prosecution to include in the proofs of evidence, not only the particulars of material witnesses, which it intends to call, but also the particulars of material witnesses it does not intend to call.

I agree with learned counsel for the appellant that the requirements are to give effect to Section 36(6)(b) of the 1999 Constitution, as amended. ​In the case of Okoye vs C.O.P. (2015) 17 NWLR (Pt. 1488) 276, heavily relied upon by learned counsel for the appellant, the facts were as follows: At the arraignment of the appellant and others before the Magistrate Court in Awka, counsel representing the accused persons moved an application for an order of Court directing the prosecution to furnish the accused persons with all documents (including statements of witnesses and police investigation reports relating to the case) whether they intended to tender them at the trial or not.

In response, the prosecution contended that such procedure was not applicable to a summary trial but only to a trial on information. The trial Magistrate ruled that the defence should be availed with copies of all the statements of the witnesses examined by the police in the course of its investigation. The prosecution was dissatisfied with the ruling and filed an appeal to the High Court.

The appeal was dismissed and the ruling of the trial Magistrate was affirmed. ​On further appeal to the Court of Appeal, the Court agreed with the prosecution’s contention that it was necessary for the accused persons to first make their election whether to be tried summarily or on information and that it was only where they elected to be tried on information that they would be entitled to be furnished with all the witness statements, police investigation reports, and so on. The accused persons all filed individual appeals against the judgment of the lower Court.

In a unanimous decision by a full panel of this Court, the appeal was allowed. It was held inter alia at pages 300-301 F-C: “The moment an accused person is facing a charge, his personal liberty is at stake and before that liberty is taken away, he must be afforded every opportunity to defend himself. It is immaterial whether he elects to be tried summarily or on information.

Once he becomes aware that he has a charge hanging over his neck for an infraction of the law and makes a request either orally or in writing, for any facilities to prepare for his defence, the Court must accede to his request and the prosecution has to comply… when a person is accused of an offence and requests for facilities to enable him prepare his defence, and the facilities in question are statements of witnesses, it will suffice if the prosecution makes available, photocopies of the statements.

The Court below was clearly in error when it made the election of the appellant to be tried on information as a condition precedent to exercising his right to request for facilities to prepare for his defence.” In my contribution at page 322 D-F of the report, I stated thus: “There is nothing in Section 36 (6) (b) of the Constitution that restrict its application to either a summary trial or a trial on information or provides for a condition precedent to its application.

With the greatest respect to the learned Justices of the Court below, having held that the evidence against the appellant, including the statements of witnesses to the Police were part of the facilities that would aid him in the preparation of his defence, ought to have stopped there and dismissed the appeal. The literal interpretation of Section 36(6) (b) does not admit of the meaning ascribed to it by the lower Court.”

​The law is quite well settled that a decision is only an authority for what it actually decided. It must be considered and utilized in light of its own peculiar facts and circumstances. See: Western Steel Works Ltd. Anor. Vs Iron Steel Workers Union of Nig. & Anor. (1987) 2 SCNJ 1: Ugwuanyi VS NICON Insurance Plc (2013) 11 NWLR (Pt. 1366) 546; Okafor vs Nnaife (1987) 4 NWLR (Pt. 64) 129; Skye Bank & Anor. vs Akinpelu (2010) 9 NWLR (Pt. 119B) 179.

In Okoye’s case (supra), the issue was whether there was any condition precedent to the entitlement of an accused person to be availed of adequate facilities for his defence. This Court answered emphatically in the negative. The Court also interpreted the word “facilities” as contained in Section 36 (6) (b) of the Constitution, as follows (at page 296 E-F): “The facilities that must be afforded the accused person are the “resources” or “anything which would aid” the accused person in preparing his defence to the crimes for which he is charged.

These, no doubt, include the statement of witnesses interviewed by the Police in the course of their investigation which might have absolved the accused of any blame or which may assist the accused to subpoena such favourable witnesses that the prosecuting counsel may not want to put forward to testify.” ​Thus, while Okoye’s case is an authority for what constitutes “facilities” within the context of Section 36(6) (b) of the Constitution, as amended and the fact that an accused person has an unfettered constitutional right to request such facilities whether he is tried summarily or on information, it is not an authority for the proposition that the failure of the prosecution to accede to the request will result in the information being quashed.

The essence or purpose of serving proofs of evidence upon an accused person is to afford him the opportunity of knowing what the prosecution witnesses intend to say against him in Court. It contains statements or abridged statements made extra-judicially to the Police or the investigator by the complainant, witnesses and/or the accused person, which would prima facie sustain the charge or the allegation against the accused person.

See: Abacha vs The State (2002) 11 NWLR (Pt. 779) 437: (2002) LPELR-15 (SC) @ 59 B-C: David Amadi vs A.G Imo State (2017) NWLR (Pt. 1575) 92: (2017) LPELR-42013 (SC) @ 18 C-E.

In the Indian case of Sher Shinsh Vs Jittendranathsen (1931) 1 LR 59 case 275, referred to and relied upon by this Court in: Ajidagba I.G.P. (1958) SC NLR 60 @ 62 D–E, it was held thus: “What is meant by prima facie case? It only means that there is ground for proceeding… But prima facie is not the same as proof, which comes later when the Court has to find whether the accused is guilty or not guilty (Per I.

Grosse, J) and the evidence discloses a prima facie case when it is such that if uncontradicted and if believed it will be sufficient to prove the case against the accused.” In Kalu VS F.R.N (2016) 9 NWLR (Pt. 1516) 1 @ 26 B, it was held per Ngwuta, JSC (of blessed memory): “The term prima facie case answers the questions on the face of the proofs of evidence: is there a ground for proceeding?

Does the proof of evidence disclose an offence or offences and if so, is the accused linked with the offence as to require him to explain his involvement therein?” See: Ikomi vs The State (1986) 3 NWLR (Pt. 28) 340.

An information is liable to be quashed where the charge is defective or where it fails to disclose a prima facie case against the accused person. See: Abacha v. The State (supra): Okoro vs The State (1988) 5 NWLR (Pt. 94) 255.

In the instant case, the appellant has not alleged that the proofs of evidence filed do not disclose a prima facie case against him. His complaint is that there are other exculpatory statements made to the police by material witnesses, which he requires to enable him properly prepare for his defence, that have been deliberately omitted despite repeated demands. By Section 146 (c) of the ACJL, the prosecution shall include the names, addresses and statements of any material witnesses even though it does intend to call them.

A material witness is one whose evidence is significant, credible and may aid in the determination of the case one way or another. See:Hassan Vs The State (2016) 12 SC (Pt. IV) 41; Ochiba vs The State (2011) 17 NWLR (Pt. 1277) 663 @ 696 A-B. The use of the word “material” in the Sub-section suggests that there is an element of discretion involved. In other words, the provision does not require that the details of every person who made statements to the Police in the course of their investigation must be included in the proof of evidence.

The initial determination of who is a material witness must be that of the prosecution. After all, there is a burden on it which does not shift, to prove the guilt of the accused beyond reasonable doubt. See Section 135(1) of the Evidence Act, 2011. In the instant case, while it is correct that the prosecutor at the Magistrates Court applied for an order binding over 12 witnesses to be available to testify in subsequent proceedings, I agree with learned counsel for the respondent that in filing the charge at the High Court, the Hon.

Attorney General is not bound by the steps taken by the prosecutor at the Magistrates Court. See Section 211 (1) (a) and (3) of the 1999 Constitution. The case file was forwarded to the office of the Director of Public Prosecutions to take the necessary steps towards the arraignment of the accused person before a Court of competent jurisdiction.

That exercise necessitates a consideration of the entire contents of the case file and a determination as to which witnesses are material to enable the prosecution prove its case beyond reasonable doubt. ​The list of witnesses that eventually forms part of the proofs of evidence is a list of the witnesses considered material by the prosecution. Not all of those listed may eventually testify. As such, it is a list of material witnesses that the prosecution may or may not intend to call at the trial.

Having made that determination and compiled proofs of evidence, duly served on the appellant, he had the right to request to be availed with additional facilities to enable him adequately prepare his defence where he is of the view that certain material evidence has not been included in or has been deliberately omitted from the proof of evidence. Section 146 (c) of the ACJL entitles him to apply to the Court to compel the prosecution to make them available to him. He cannot complain of lack of fair hearing when the hearing is yet to commence.

It is the Court that has the duty to ensure that the constitutional right to fair hearing is not violated. It has a duty to hold an even scale between the parties to ensure that both sides are afforded an equal opportunity to present their case. ​When interpreting statutory provisions, it is correct, as submitted by learned counsel for the appellant, that the words used must be given their natural and ordinary meaning except where, to do so would lead to absurdity.

See: Dickson vs Sylva & Ors. (2016) 7 SC (Pt.VI) 165; Ibrahim VS Barde (1996) 9 NWLR (Pt. 474) 513; Ojokolobo vs Alamu (1987) 3 NWLR (Pt.61) 377: Nonye Vs Anyichie (2005) SCN 306 @ 316. It was held in Saraki vs F.R.N. (2016) 3 NWLR (Pt. 1500) 531, that the main object of statutory interpretation is to discover the intention of the law maker, which is to be deduced from the language used. Furthermore, the provisions must be considered as a whole and not in isolation.

See:Obi vs INEC (2007) 11 NWLR (Pt. 1046) 560 @ 664 B-D; N.U.R.T.W & Anor vs R.T.E.A.N. & Ors. (2012) LPELR-7840 (SC) @ 28-29 F-A. ​An interpretation of Section 146 (c) of the ACJL, which renders an information null and void because the accused contends that in his opinion, the statement of material witness were omitted or deliberately withheld by the prosecution, would lead to absurdity.

It would lead to the opening of the floodgates for any person accused of committing an offence to truncate, in limine, the hearing of any charge against him on the ground that the statements of material witnesses were not included in the information. The test of materiality then becomes subjective and not objective. As observed earlier, it is the Court, upon an application to it by the defence, that can determine the reasonableness of the request.

I agree with the respondent that at this stage, the appellant is not in a position to contend that his right to fair hearing has been breached, as he is yet to take his plea.

Trial in a criminal case is said to commence with the arraignment of the accused, which consists of the reading of the charge to him and the taking of his plea thereon. See: Lufadeju vs Johnson (2007) 8 NWLR (Pt.1037) 535; (2007) LPELR-1795 (SC) @ 43 E-F: Asakitikpi VS The State (1993) 5 NWLR (Pt. 296) 641 @ 652.

In the case of Isiyaku Mohammed Vs Kano State Native Authority (1968) 1 ALL NLR 424 @ 426, it was held, per Ademola, CJN: “We think a fair hearing must involve a fair trial and a fair trial of a case consists of the whole hearing. The true test of a fair hearing is the impression of a reasonable person who was present at the trial, whether from his observation, justice has been done in the case. We feel obliged to agree with this.” ​In conclusion, I am not persuaded to interfere with the concurrent findings of the two lower Courts.

I am not satisfied that there are grounds to nullify the information where the charge has not been shown to be defective and it is not alleged that the proof of evidence as it stands, does not disclose a prima facie case warranting some explanation from the appellant. I am of the view that an application to the Court for an order directing the prosecution to make the requested materials available would have met the justice of this case. I am equally not satisfied that the appellant’s right to fair hearing has been breached.

The appeal therefore fails and is hereby dismissed. The judgment of the lower Court delivered on 28th July, 2015 is affirmed. Appeal dismissed.

JOHN INYANG OKORO, J.S.C.: My learned brother, Kudirat M. O. Kekere-Ekun, JSC, afforded me the opportunity of reading before now, a draft of his lead judgment just delivered. I completely agree with the reasoning, conclusion and order made therein. I adopt them, with respect as mine. I shall only add a few comments of my own in appreciation of the judgment.

​In the main, the Appellant’s grievance in this appeal is with the supposed breach of his fundamental right to fair hearing as enshrined in Section 36 (6) (b) of the 1999 Constitution (as amended) viz-a-viz Section 146 of the Administration of Criminal Justice Law of Anambra State. It is for that supposed breach of his right to fair hearing that he declined to plead to the charges citing a pending motion challenging the competence of the charge.

My Lords, it is a settled position of the law that criminal trial commences upon the arraignment of the accused person, when he pleads to the charges preferred against him either “guilty”‘ or “not guilty” as the case may be. It is at this point that issues are joined in a criminal trial. Until pleading is taken, the accused person(s) is technically outside the jurisdiction of the Court.

See Alkali Imam v Federal Republic of Nigeria (2019) 8 NWLR (pt. 1674) 197, Federal Republic of Nigeria v Mohammed Abubakar (2019) 7 NWLR (pt. 1670) 113, Lufadeju v Johnson (2007) 8 NWLR (pt. 1037) 535 at 562. ​It follows therefore that an accused person can only successfully make a case against the breach of his right to fair hearing after he has submitted himself to the jurisdiction of the Court by taking his plea and not before pleading to the charge.

In the case of Ganiyu v State (2013) 10 NWLR (pt. 1361) 29, this Court, per Onnoghen, JSC (as he then was) referring to Edibo v The State (2007) 13 NWLR (pt. 1051) 306 at 326 stated as follows:- “The arraignment and taking the plea of an accused person is the very commencement of a criminal trial. It is the stage when the accused person appears at the Court; the charge explained to his understanding and pleads thereto in person and not even through his counsel.

It is a very fundamental aspect of any criminal proceedings and that underscores the need for the strict and mandatory compliance in matters relating thereto. Thus any criminal trial, no matter how well conducted, without the plea of the accused person first and properly taken is a nullity.” His Lordship went on to state that:- “It must be pointed out that the taking of the plea of an accused person upon arraignment is a matter of procedural law, not substantive law, the defect on which renders the proceedings a nullity.

Such defect is regarded as a fundamental defect which goes to the jurisdiction of the Court.” From the foregoing, the starting point in a criminal trial is the arraignment of an accused person which becomes valid upon the plea of the accused. I agree that an allegation against a breach of right to fair hearing cannot be successfully raised in limine but at the close of trial when evidence must have been taken.

In the instant case, the Appellant has not complained that the proof of evidence sought to be quashed is defective. His only complaint is that exculpatory statements made by some witnesses are not included in the proof of evidence. He has failed to show how a valid proof of evidence which has sufficiently disclosed a prima facie case against him has occasioned a breach of his right to fair hearing.

All I have endeavoured to say above is that this appeal is bereft of merit and deserves to be dismissed. I also dismiss it. I abide by the orders rendered in the lead judgment. Appeal Dismissed.

IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.: My learned brother, the Hon. Justice K.M.O. Kekere-Ekun, JSC has ordered me the privilege of a preview of the judgment just delivered. I entirely concur with the reasoning reached therein, to the conclusive effect that the present appeal is devoid of merits.

Hence, having adopted the said reasoning and conclusion as mine, I too unhesitatingly hereby dismiss the appeal for lacking in merit.

ADAMU JAURO, J.S.C.: I had the privilege of reading before now, the lead judgment just delivered by my learned brother, Kudirat Motonmori Olatokunbo Kekere-Ekun, JSC. I agree with the reasoning contained therein and the conclusion arrived at.

It is not in doubt that Section 36 (6) of the 1999 Constitution (as amended) and Section 146 of the Administration of Criminal Justice Law of Anambra State seek to protect the right of an accused person to a fair trial. However, those provisions cannot be invoked or applied arbitrarily. They can and should only be invoked in appropriate instances. I am of the firm view that the facts of this case do not support the invocation of the aforesaid provisions. The case of OKOYE & ORS v.

C.O.P & ORS (2015) LPELR-24675 (SC) heavily relied on by the Appellant has different facts and circumstances and is distinguishable from the instant appeal. The reliefs sought by the Appellants in that case did not include the quashing of the information. The Appellants only sought to have the relevant materials that would assist them in preparing their defence made available to them. The issue of quashing of the information or doing so on the basis of a purportedly incomplete proof of evidence was therefore not considered by this Court in that case.

Rather than seek an order of the trial Court to compel the Respondent to avail him of the necessary facilities to enable him prepare his defence as the Appellants did in Okoye’s case (supra), the Appellant herein ill-advisedly approached the trial Court to quash the information preferred against him. The Appellant has not demonstrated that the information preferred against him is defective, neither has he shown that same does not disclose a prima facie case against him. Consequently, he has no basis to seek that the information be quashed. See IBRAHIM v.

STATE (2017) LPELR-42261 (SC); OHWOVORIOLE V. FRN & ORS (2003) LPELR-2364 (SC); IKOMI & ORS v. STATE (1986) LPELR-1482 (SC).

​In conclusion, the Appellant has failed to show that the concurrent decisions of the two lower Courts are perverse. Hence, this Court cannot interfere with same. I therefore join my learned brother in dismissing the appeal as same is totally devoid of merit. The judgment of the lower Court delivered on 28th July, 2015 is hereby affirmed.

EJEMBI EKO, J.S.C.(DISSENTING): I read in draft, the judgment just delivered in this appeal by my learned brother, K. M. O. Kekere-Ekun, JSC.

I do not agree with the conclusion therein; particularly on the point (in agreement with the Respondent) that it was too early or premature for the accused person, the Appellant, to ask the trial High Court that the disputed proof of evidence prepared and filed, and duly served on the Appellant, be quashed in limine; the same being illegal and a clearly manipulated in disobedience of the mandatory provisions of Section 146(c) of the Administration of Criminal Justice Law of Anambra State, read together with Section 36(6)(b) of the Constitution. ​The office of the Attorney-General, as empowered by Section 211 of the 1999 Constitution, is not constituted to do mischief nor to flout the laws of Anambra State and any provision of the Constitution of the Federal Republic of Nigeria.

Let’s together read Section 146(c) of the Administration of Criminal Justice Law (ACJL) of Anambra State. It provides - 146. – The proof of evidence shall consist of- (a) (b) (c) the names, address and the statement of any material witness whom the prosecution does not intend to call; provided that the submission of such names shall not prevent the prosecution from calling any such witness at the trial if the prosecution later so desires.

This mandatory provision is designed to complement the mandatory provision of Section 36(6)(b) of the Constitution, to wit - 36.(6) Every person who is charged with a criminal offence shall be entitled to - (a) (b) to be given adequate time and facilities for the preparation of his defence ​In my firm view the “adequate - facilities for the preparation of his defence” include the proofs of evidence compiled in accordance with the mandatory provision of Section 146 of the ACJL; which does not give the prosecutor or the office of the Attorney-General the discretion to exclude any exculpatory statements of material witnesses interviewed by the investigators.

Section 146 of ACJL in actuality takes away from the prosecutor the discretion to exclude from the proofs of evidence such exculpatory statements of material witnesses that are beneficial to the accused person. The import of Section 146 ACJL is that the proofs of evidence is only valid if it consists of “the names, address and statement of any material witness whom the prosecution does not intend to call”.

Therefore, reading this provision viz-a-viz Section 36(6)(b) of the Constitution the legislative intent is that there must be transparency and accountability in the administration of criminal justice in Anambra State. The provision imposes on the prosecutor, a duty to be transparent in the compilation of proof of evidence from the crime investigation records; hence, the further duty that both inculpatory and exculpatory statements of material witnesses interviewed must be included in the proofs of evidence.

A collateral right thus enures to the benefit of the accused person that he must be given such adequate facilities in the proofs of evidence for the preparation of his defence. That is my understanding what this Court, per Niki Tobi and Mahmud Mohammed, JJSC, stated in NEWSWATCH COMMUNICATIONS LTD v. ATTA (2006) NWLR (pt. 993) 144 at 170-171 and 181-182, respectively, that fair hearing is a two-way traffic. It imposes on the prosecution the duty to compile and serve on the defence, a proof of evidence compiled in accordance with Section 146 ACJL.

That duty is co-terminus with the right of the defence to be served the proofs of evidence compiled in terms of the mandatory provision of Section 146 ACJL. It is clear from OKOYE v. C.O.P (2015) 17 NWLR (pt. 1488) 276 that the moment a person faces criminal charge, his personal liberty is at stake. The moment he is arrested for a criminal offence, Section 35(3) of the Constitution makes it mandatory that he “shall be informed in writing - of the facts and grounds for his arrest and detention”.

It is further recognition of his right to personal liberty and the right against the prosecutor’s ambush that the Full Court in OKOYE v. C.O.P (supra) stated that Section 36(6)(b) of the Constitution makes it a sine qua non that a person imminently facing trial for a criminal offence must be given adequate facilities for the preparation of his defence. It is, therefore, not a privilege but a legal or statutory right that this Appellant herein must, consistent with Section 36(6)(b) of the Constitution, be given the proofs of evidence compiled in full compliance with Section 146 ACJL.

It must include both inculpatory and exculpatory statements of material witnesses. On what facts does the High Court determine that a prima facie case has been made out for the trial of the defendant to proceed; If not the full complement of the proofs of evidence compiled in accordance with Section 146 ACJL? Prima facie means there is ground for proceeding: KALU v. FRN (2016) 9 NWLR (pt. 1516) 1 at 26; following IKOMI v. THE STATE (1986) 3 NWLR (pt. 28) 340; OKORO v. THE STATE (1988) 5 NWLR (pt. 94) 255; ABACHA v. THE STATE (2002) 11 NWLR (pt. 779) 437.

Conversely, as Hubbard J, put it in R. v. COKER & ORS 20 NLR 62 at 63 there is no prima facie case when, there is no evidence on which the Court could convict. The latter cases following this dictum include IBEZIAKO v. C.O.P. (1963) NNLR 88; C.O.P. v. EBIKAKE (1966) NNLR 132. ​Putting it the other way: there is a prima facie case when the facts are such that if uncontradicted and believed it will be sufficient to establish the guilt of the accused person: POLICE v. AJIDAGBA 3 FSC 5.

It is now trite that when the prosecution presents to the Court two versions of the same incident; one inculpatory, the other exculpatory, there would no proof beyond reasonable doubt: PAUL AMEH v. THE STATE (1978) 6-7 SC 27: BOY MUKA v. THE STATE (1976) LPELR -1924 (SC). Consistent with the dicta of this Court in ONUBOGU v.

THE STATE (1976) 2 SC 79 at 83-84 and others, I should think that the High Court, in determining from the proofs of evidence whether a prima facie has been disclosed, must consider the totality of the facts, including the inculpatory and exculpatory statements of material witnesses, disclosed in the proofs of evidence. Here, in my humble view, lies the mischief of the prosecution, the Respondent, in this case in their strident drive and desire to ensure that the Court did not see the exculpatory statements of material witnesses.

The gimmick is both illegal (by dint of Section 146 (c) of the ACJL read together with Section 36 (6) (b) of the Constitution), ​as well as unprofessional and unethical (by dint of Rule 32(2) (j) & (k) of the Rules of Professional Conduct for Legal Practitioners 2007 - enjoining a lawyer not to promote, in abuse of Court process, a case which to his knowledge is false) the purport of Section 146 ACJL is that the Prosecution, mandatorily shall put all cards on the table and present to the Court both inculpatory and inculpatory statements of material witnesses in order to enable the judicious and judicial determination of the question: whether the totality of facts disclose a prima facie case against the accused person.

When the prosecution deliberatingly, albeit illegally, weeds out exculpatory statements of material witnesses contrary to Section 146 ACJL; he does so mischievously to force the Court into a one-way traffic lane. The intent is obvious - not only to deny fair hearing to the defendant but also to attain inglorious travesty of justice. The effect of non-compliance with mandatory provisions of a statute is two fold: the act is firstly a nullity: SANMABO v. THE STATE (1967) NMLR 314 at 317; SAKA v. THE STATE (1981) 11-12 SC 65;  GWONTO v. THE STATE (1982) NCLR 312.

Secondly, it occasions a miscarriage of justice: HARUNAMI & ANOR v. BORNU N. A (1967) NNLR 19; SAKA v. THE STATE (supra). The grouse of the Respondent is that it is too early or premature for the defendant, the Appellant, to ask that the offensive proofs of evidence compiled and filed to support the information against him be quashed in limine. The contention is one track minded.

The Appellant complaints that the proofs of evidence compiled in defiance or disobedience of the mandatory provision of Section 146(c) of the ACJL read together with Section 36 (6) (b) of the Constitution is illegal, ultra vires and a nullity; and that it adversely affects his right to fair hearing, guaranteed by Section 36(6)(b) of the Constitution.

I do not think the Respondent is right in his contention. ​Section 46(1) of the Constitution allows any person who alleges that any of the provisions of Chapter 4 of the Constitution, including Section 36 (6)(b) thereof, has been, is being or is likely to be contravened to apply to a High Court for redress.

In my judgment, from the facts and circumstances of this case, the Appellant acted timeously, as he did in the application, to quash the information supported by the illegal proofs of evidence designed to deny him his right to fair hearing, guaranteed by Section 36(6)(b) of the Constitution, read together with the mandatory provision of Section 146(c) ACJL. We, as Court of justice, should not sacrifice substantial justice for procedure, albeit sheer technicality.

Section 146 ACJL should be given a purposeful construction, rather than a restrictive interpretation that will deny the Appellant the right conferred on him thereby: NAFIU RABIU v. THE STATE (1980) 8-11 SC 130; ONYEMA v. OPUTA (1987) 6 SC 362.

The promotion of justice and transparency in the manner the office of the Attorney - General, pursuant to Section 211 and 36(6)(b) of the Constitution read together with Section 146 ACJL, discharges its prosecutorial functions, accountability and transparency are what the provisions demand on and obligate the prosecutorial authorities to attain. ​I will consequently allow the appeal in its entirety. Appeal allowed. The information supported by the illegal proofs of evidence shall be, and are hereby struck out. Appeal allowed.

Judgment

KENNETH IKECHUKWU AMADI, J.C.A. (Delivering the Leading Judgment) : This is an appeal against the ruling of the Federal High Court, Katsina Division, Katsina in charge no. FHC/K1/23C/2018 Coram; Hon. Justice H. R. Shagan delivered on the 27th day of May, 2019.

The brief facts of this case, which gave rise to the appeal are that the Appellant Shamsu Mannir and Tasiu Suleman, were arrested on the 15th October 2017 at Charanchi town in possession of 41 Kilograms of suspected psychotropic substance believed to be Tramadol by the men of the National Drug Law Enforcement Agency during a JTF Operation.

They were consequently charged under Section 14(b) and Section 19 of the NDLEA ACT CAP N30 Laws of the Federation 2004 on a two count charge of possession of narcotic drugs similar to cocaine, heroin and LSD before the Federal High Court sitting at Katsina on a charge sheet dated the 10th day of January, 2018. ​The defendants pleaded not guilty to all charges and the case was adjourned for trial.

The defendants’ counsel filed a notice of Preliminary Objection dated the 3rd day of December, 2018 on three grounds; the first ground being that the offences upon which the defendants were standing trial were unknown to Nigerian Law, for three sub-reasons: Firstly, that tramadol is not listed among psychotropic substances outlined in the 2nd Schedule of the National Drug Law Enforcement Agency Act. The Dangerous Drugs Act or any other Legislative or written law fully enacted.

Secondly, that Section 36(8) and (12) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) operated in favour of the defendants and Thirdly, that Nigeria is not a signatory to the United Nation Conventions that restricts the sale of tramadol. The second ground was that the charge preferred against the defendants was purely based on suspicion. The third and final ground on which the Preliminary Objection was brought was premised on the assertion that the Court lacked the requisite jurisdiction to hear this case.

The preliminary objection was heard and in considered ruling of the lower Court delivered on 27/5/2017, it was dismissed. Aggrieved by the ruling the Appellant (defendant) filed a Notice of Appeal raising three grounds of appeal thus: GROUND ONE: The learned trial Court erred in law when it relied on the processes filed on behalf of the Respondent out of time without leave of the trial Court having been sought and obtained, in its ruling and dismiss the Notice of Preliminary Objection filed on behalf of the Appellant.

GROUND TWO: The learned trial Court erred in law when it dismissed the Notice of Preliminary Objection filed and argued on behalf of the Defendant/Appellant. GROUND THREE: The learned trial Court misdirected itself in law when it relied on the cases of Mohammed v FRN (2013) LPELR21384, Okewu v FRN (2012) 2 SC (PT11) Ikye Eze v FRN (CA/YL/68C/2015)(2016) NGCA47, 6th May 2016 to dismiss the Defendant’s/Appellant’s Notice of Preliminary Objection without adverting its mind to the authorities cited by the Defendant/Appellant.

GROUND FOUR: The learned trial Court erred in law when it held that Tramadol is a Narcotic drug similar to Cocaine, Heroin, LSD hence prohibited by law in Nigeria. ​In the Appellant’s brief of argument, the learned counsel for the Appellant raised 4(four) issues for determination thus: 1. Whether the trial Court was right when it considered and relied on the Respondent’s written address against the Notice of preliminary objection in dismissing the Notice of Preliminary Objection, same having been filed out of time and without leave of the trial Court having been sought and obtained. 2.

Whether the trial Court was right when it overruled the Notice of Preliminary Objection as being incompetent, frivolous, and vexatious and it lacks merit. 3. Whether the trial Court was right when it relied on the cases of Mohammed v FRN (2012) 2SC (Pt.11), Ikeyi Eze v FRN (CA/YL/68C/2015) 2016 NGCA47 6TH May 2016 whose facts and principles are different and distinguishable with the case at hand to overrule the Notice of Preliminary Objection. 4.

Whether the learned trial Court was right when it held in its ruling overruling the Appellant’s Notice of Preliminary Objection that tramadol is a narcotic drug similar to cocaine, heroin, LSD hence prohibited by law without citing any authority to support such opinion. ​In arguing issue one that is; as to the propriety of the reliance of the trial Court on the written address against the notice of preliminary objection same being filed out of time and without the leave of Court, Counsel answered the question posed in the negative.

He reiterated to the Court on the importance and strength of rules of Court in dispensation of justice and trial proceedings, citing the cases of Isa v Abacha (2012) 12 NWLR (PT 1314) 406 & Bayero v Mainasara & Sons Ltd. Counsel submitted that in the absence of any provision regarding the hearing of preliminary objection in the Administration of Criminal Justice Act the provision of Order 26 Rule 4 Federal High Court (Civil Procedure) Rules 2019 shall apply. That by the said provision, the other party is given 7 days within which to respond to the notice of preliminary objection served on him.

That in this instant case, that the Respondent did not respond until after 48 days of service. That no motion for extension of time was filed, no default fees were paid and no leave of Court was sought in accordance with the provision of Order 48 Rule 4 Federal High Court (Civil Procedure) Rules 2019. The omission in his opinion rendered the process incompetent and lifeless before the Court, referring to Nwabueze v Okoye (1988)10-11 SC, Dakan v Asalu (2015) ALL FWLR (Pt. 799) 1055.

Learned Counsel further submitted that it is against the principle of fair hearing for the trial Court to suo motu grant an extension of time to the Respondent and order Respondent to pay default fees without hearing the other party. He referred the Court to the cases of Ogwe v IGP (2015) ALL FWLR (PT 779) 1055 SC, Abdulkareem v Lagos State Government (2016) ALL FWLR (PT.850) 1123, Odom v PDP (2015) ALL FWLR (PT 773) 962 SC and Kayili v Yilbuk (2015) ALL FWLR (PT 775) 347 SC.

Continuing, counsel argued, that purported “Exhibit A” (a drug analysis report) which the Respondents had annexed to their written address against the notice of preliminary objection at the trial Court amounted to smuggling in of evidence. He contended that its competency was challenged but the trial Court ignored the challenge. He submitted that only an affidavit, which is a form of evidence, can contain annexures and be relied upon by the Court as a form of evidence.

That the purpose of a written address was to let the Court, and to enable the other party know of facts summed up by him, and as such counsel’s submission cannot take the place of evidence. Counsel referred to the cases of Niger Construction v Okugbeni (1987) 2 SC 108 and Obodo v Olomu & Anor (1986)3SC 43. He urged the Court to hold that failure of the trial Court to rule on the propriety or otherwise of annexing “Exhibit A” to Respondent’s written address against the notice of preliminary objection is fatal and against the principles of fair hearing.

In concluding this issue, counsel submitted that an incompetent process cannot be relied upon to erect an action as it must collapse, counsel referred to the cases of Pollyn v Miejene (2012) 14 NWLR (Pt. 1321) Igwe v Kalu (1990) 5 NWLR (PT 149) 155; and Trade Bank v Cham (2004) ALL FWLR (Pt. 235).

He urged this Court to resolve this issue in favour of the Appellant and uphold the notice of preliminary objection as unchallenged, strike out the charge and discharge the Appellant on same. ​In arguing issue two, that is; whether the trial Court was right in overruling the notice of preliminary objection as incompetent, frivolous and vexatious, Learned Counsel also answered the question in the negative. He stated that the first ground of their argument in the notice of preliminary objection is that the offences for which the appellants were charged is unknown to Nigerian Law.

That the Appellants were arraigned on a two (2)-count charge of criminal conspiracy and possession of 41 kilograms of tramadol suspected to be psychotropic substances. That by the provision of Section 36(12) of the 1999 Constitution no person shall be convicted for an offence which is not defined and the penalty prescribed in a written law. That Section 14(b) and Section 19 NDLEA Act which were relied on by the prosecution did not mention tramadol as illegal. That in defining a narcotic drug the Supreme Court in Okewu v FRN (2012) 2 SC (Pt.

II) included ‘a drug that is controlled and prohibited by law’ in holding that cannabis sativa can be properly classified under ‘any similar drugs’. It was also hinged on the fact that cannabis sativa was prohibited by the provisions of the Indian Hemp Act 1960 but in this instance, no provision of the law prohibited the possession of tramadol. That the restriction of the possession of tramadol in Nigeria was just an administrative policy directive of the government and such policy directive cannot contravene the provisions of the Constitution particularly Section 36(8) 1999 CFRN.

That this was the position of the Court in Okafor v Lagos State Government (2016) LPELR-41066 (CA). Apart from the foregoing, counsel argued that the charge against the appellant was purely based on suspicion but the trial Court omitted or neglected to rule on this point. He stated that suspicion no matter how well placed does not amount to prima facie evidence and cannot take the place of same referring to the cases of Ohwovoriole v FRN (2003) FWLR (Pt. 141) P 2019 AT 2037 Abacha v State (2002) 7 SC (PT1), Abieke & Anor v State (1975) NSCC 404 AT 406.

Counsel submitted that the failure of the lower Court to rule on this point amounted to a breach of fair hearing and gross miscarriage of justice. Counsel referred to Barrister Mike Nkwocha & Ors v MTN Nigeria Communications Ltd (2008) 11 NWLR (Pt. 1099) 439 Para A-B. In respect of issue three, that is; whether the trial Court was right in relying on Mohammed v FRN, Okewu v FRN, and Ikye Eze v FRN to overrule the notice of preliminary objection. Counsel answered his poser in the negative.

He argued that the facts and principles in these cases were fundamentally different from the case at hand. That the trial Court is bound to follow decisions of superior Courts only where the facts, issues and principles are similar. That these cases relied on by the trial Court were different in that in Mohammed’s case and Okewu’s case bothered on the possession of Indian hemp and since the Indian Hemp Act criminalised its possession, the Court would be right to hold it as a narcotic drug under the omnibus phrase ‘…any similar drugs.”.

That in Ikye Eze’s case he was in possession of tramadol but in his confessional statement, it was referred to as cocaine. Counsel therefore submitted that the facts of these cases were not on all fours with the case at hand and urged the Court to resolve this issue in favour of the Appellant. ​On issue four, that is; whether the learned trial Court was right when it held in its ruling overruling the Appellant’s notice of preliminary objection that tramadol is a narcotic drug similar to cocaine, heroin, LSD hence prohibited by law without citing any authority to support such opinion.

The argument of counsel contains repetitive arguments already made. It is important to note that the learned counsel for the Appellant filed what he captioned Appellant Reply Brief to the Respondent’s Brief of Argument. I have very carefully read all the contents of the reply brief, nothing in it relates to any point of law or reply to any new issues raised by the Respondent in her brief of argument, rather it is a further argument and repetition of already canvassed arguments. I therefore discountenance it.

The learned counsel for the Respondent in his own Brief of argument raised two issues for determination and argued them as follows: In respect of issue one that is; whether the trial Judge was right in considering the process filed by the respondent before the trial Court against the notice of preliminary objection. Counsel answered this poser in the affirmative, his reason being that all criminal trials are regulated by the Administration of Criminal Justice Act 2015 (hereafter referred to as ACJA) and this enactment does not make provisions on the issue of timeline for filing of processes.

That Section 492(3) ACJA 2015 states that where there are no express provisions in the Act the Court could apply any procedure that will meet the justice of the case. Counsel argued that the Appellant’s submission that recourse should have been made to the Federal High Court (Civil Procedure) Rules 2019 where there is a lacuna in the ACJA for time of filing was misconceived.

This was because, firstly the ACJA itself allows for the application of judicial discretion, secondly civil and criminal proceedings are different and are governed by different rules, thirdly the Federal High Court (Civil Procedure) Rules 2019 has a restrictive application to civil proceedings and fourthly the provisions of Section 6(6)(a) of the 1999 Constitution of the Federal Republic of Nigeria which extends the powers of superior Courts to inherent powers and sanctions of a Court of law has eroded any possibility of the helplessness of the Courts as a result of any vacuum in any procedural rules.

Continuing, counsel argued that, assuming without conceding that the Federal High Court (Civil Procedure) Rules 2019 applied, it would still not make the process incompetent.

This is because Order 51 Rule1(1)  Federal High Court (Civil Procedure) Rules 2019 is to the effect that failure to comply with the requirements of filing was to be treated as a mere irregularity because Courts are more concerned with doing substantial justice as against considering mere technicalities, counsel referred to the case of Morayo v AAU Akungba (2017) 3 NWLR (Pt. 1552) 245 AT 249, Shuaibu v Muazu (2014) 8 NWLR (Pt. 1409) 247 AT 339, FRN v Dairo (2015) 6 NWLR (Pt.1454) 141 AT 187.

Furthermore, he submitted that the Court in its unfettered discretion to cure this irregularity ordered the Respondent to pay the sum of N35,000 in default of filing the process on time, which was paid. Regarding the propriety of attaching ‘Exhibit A, learned counsel submitted that it goes to no issue as the learned trial Judge neither referred to it nor mentioned it. That the ruling was made based on judicial precedents and judgment of Supreme Court and no reliance was placed on the attached Exhibit A, hence it went to no issue.

Furthermore and in any case, Exhibit A, was not raised at the trial Court and neither did the Appellant raise it as a ground of appeal in the notice of appeal. That by virtue of Order 6 Rule 4 and Order 17 Rule 3(3) of the Court of Appeal Rules, 2016 it was a fresh issue and ought to have been brought properly with leave of Court. Counsel prayed the Court to resolve this issue in favour of the Respondent.

In respect to issue two, that is; whether the learned trial Judge was right in dismissing the notice of preliminary objection raised by the Appellant herein at the stage of the proceedings before the Federal High Court. The learned Counsel answered this question in the affirmative. Counsel argued that the Appellant’s objection was hinged on three issues 1. That the Federal High Court lacked jurisdiction to hear this case 2. The charge was based on suspicion and cannot legally sustain a trial 3.

That the charge was unconstitutional offending Section 36(8) & Section (12) of the 1999 Constitution of the Federal Republic of Nigeria. As regards the first issue, counsel submitted that the Federal High Court has jurisdiction to hear drug related cases, referring to the case Okewu v FRN (supra). He acknowledged that even when the decisions related to Indian hemp the position of jurisdiction applies to all drugs.

That Section 26 NDLEA Act also bestows jurisdiction on the Federal High Court and most importantly Section 251(1) M extends the jurisdiction of the Federal High Court to drugs and poisons. Counsel also argued that within the context of Section 19 NDLEA Act and particularly with the phrase ‘or any other similar drugs’ tramadol was envisaged because all drugs which were harmful could not be fully listed. He also reminded the Court that tramadol has also been referred to as an opioid analgesic by the International Narcotics Control Board.

It was against the backdrop of this that the National Council on health made tramadol a controlled substance in 2013. He then urged the Court to uphold the jurisdiction of the FHC over this case. ​In answering the question as to whether the charge was based on suspicion, counsel contended that the Appellant’s counsel was wrong in saying so. That the charge though inelegant was clear and did not mislead the Appellant as to the offence he was charged with.

Counsel submitted that the phrase ‘suspected to be psychotropic substances’ was of no moment to the charge as it was neither a fact in the case nor relating to any requirement of relevant Sections of the NDLEA Act. Counsel urged the Court to hold that the charge was not based on suspicion since the allegation of the offence was clear.

In concluding his argument, counsel submitted that the objection raised was misconceived and premature since the Appellant was charged for offences contained in Section 14(b) and Section 19 NDLEA Act and by applying the ejusdem generis principle it can be extended to drugs like tramadol. RESOLUTION The learned counsel for the Appellant raised 4 (four) issues while the learned counsel for the Respondent raised 2(two) issues for determination in this appeal. The four issues raised by the counsel for the Appellant are more encompassing.

I therefore, shall adopt them as mine in the resolution of this appeal as follows: Issue one that is; whether the trial Court was right when it considered and relied on the Respondent’s written address against the Notice of preliminary objection in dismissing the notice of preliminary objection, same having been filed out of time and without leave of the trial Court having been sought and obtained.

Proof in criminal trial is beyond reasonable doubt, while proof in civil cases is on the preponderance of evidence. They are on parallel lines and do not mix.

The Federal High Court (Civil Procedure) Rules 2009 deals with civil cases in the Federal High Court. It was not made to apply in criminal trials and does not apply in criminal trials. The Administration of Criminal Justice Act, 2015 applies to criminal trials. It does not envisage the use of motion on notice under the Federal High Court Civil Procedure Rules in a criminal trial.

The learned counsel for the Appellant submitted that the law and practice before the trial Court is that hearing of notice of preliminary objections are governed by the provision of Order 26 of the Federal High Court Civil Procedure Rules 2009 now 2019. Counsel did not furnish the Court with either the statutory authority or the case law in support of the use of the provisions of the Federal High Court Civil Procedure Rules 2009 now 2019 in a criminal procedure.

Therefore I am of the considered view that the provisions of the Federal High Court Civil Procedure Rules 2009 now 2019 are inapplicable in any manner or form in the proceedings relating to charge no FHC/KT/23C/2018 or any other criminal proceedings before the trial Court, and I so hold. Therefore all arguments of the Appellant based on the said Federal High Court Civil Procedure Rules 2009 now 2019 in this matter go to no issue and are consequently discountenanced.

Furthermore, the Appellant raised the issue of an annexure marked exhibit ‘A’ annexed to the written address of the Respondent against the notice of preliminary objection. I have carefully read the ruling of the lower Court appealed against, no where did the trial judge mention or refer to the said ‘Exhibit A’. It was also not raised in the grounds of appeal. It is an entirely a new or fresh issue raised without the leave of Court, which is not allowed.

Consequently, this issue is resolved against the Appellant and in favour of the Respondent. ​The third issue; whether the trial Court was right when it relied on the cases of Mohammed v FRN (2012) 2SC (Pt.11), Ikeyi Eze v FRN(supra) whose facts and principles are different and distinguishable with the case at hand to overrule the Notice of preliminary objection and issue four; whether the learned trial Court was right when it held in its ruling overruling the Appellant’s notice of preliminary objection that tramadol is a narcotic drug similar to cocaine, heroin, LSD hence prohibited by law without citing any authority to support such opinion are related and I shall take them together as follows:

The Appellant was charged under Section 14 and 19 of the NDLEA Act for conspiracy and unlawful possession of 41 kilograms of Tramadol. While there is no dispute as to the provision of Section 19 of the NDLEA Act. The said Section provides thus: Any person who without lawful authority, knowingly possesses the drugs popularly known as cocaine, LSD, Heroin or any other similar drugs, shall be guilty of an offence under this Act and liable on conviction to be sentenced to imprisonment for a term not less than fifteen years and not exceeding 25 years.

The argument of the Appellant is that Tramadol was not specifically named under the said Section 19 of the NDLEA Act Cap N40 LFN 2004. In the case of Okewu v. Federal Republic of Nigeria (supra), the trial Judge defined Indian hemp that is Cannabis Sativa as a narcotic drug because it alters perception or consciousness therefore under prohibition by law. The Court equally reached the same decision in Mohammed v FRN (Supra).

In this case, the learned trial Court Judge held thus: “It is well settled principle of law in recent times that any drug substance which if found in the possession of a person and if the content after being tested in any recognised Government Laboratory and if proves positive of Cocaine, heroin, LSD or any similar drugs is described as psychotropic substance and narcotic drug, most especially where if taking in excess can cause stupor, coma, drowsiness or convulsion that alters a person perception and tramadol falls within that category if taking in excess”.

See page 10 of the ruling at page 47 of the record. The use of the phrase “or any other similar drugs” clearly means that the list is not exhaustive. The learned Judge was therefore right in relying on the aforesaid cases in her ruling. These issues are equally resolved in the favour of the Respondent and against the Appellant. ​The last issue is issue two that is; whether the trial Court was right when it overruled the notice of preliminary objection as being incompetent, frivolous, and vexatious and it lacks merit.

The Appellant only took his plea in this matter and it was adjourned for trial before this motion was moved. Clearly, the aim and purpose of this motion is to stop or forestall the trial of the Appellant. The counsel for the Appellant is carrying out the singular aim of stopping the prosecution of the Appellant and in doing so tried to mislead the Court into using Federal High Court Civil Procedure Rules in a purely criminal matter. This was a very dangerous invitation which if allowed has the capacity to cripple criminal prosecution.

The issues raised in this “motion” can be raised in a no case submission or as defence on the merit to this case. The learned trial Judge of the lower Court was right in holding that the “notice of preliminary objection” as being incompetent, frivolous, vexatious and lacking merit. This issue is resolved against the Appellant. This appeal is lacking in merit and therefore dismissed. The ruling of the lower Court in Charge No FHC/KT/23C/2018 is hereby affirmed. The trial of the Appellant shall proceed forthwith. Judgment is entered accordingly.

ABUBAKAR MAHMUD TALBA, J.C.A.: I had the privilege of reading in draft, the lead judgment of my learned brother, KENNETH IKECHUKWU AMADI, JCA. I entirely agree with his reasoning and conclusion that the appeal is lacking in merit. I also dismiss the appeal. I abide by the consequential order(s) in the lead judgment.

MOHAMMED BABA IDRIS, J.C.A.: I have had the benefit of reading in draft, the lead judgment of my learned brother, Kenneth Ikechukwu Amadi, JCA, just delivered. I agree with the reasoning and conclusion reached. I do not have anything useful to add. I abide by all the orders made therein.

Judgment

ABBA BELLO MOHAMMED, J.C.A. (Delivering the Leading Judgment): The Appellant herein was arraigned as 4th defendant along with 5 other defendants before the High Court of Ogun State in a five count Charge for the offences of conspiracy to commit armed robbery and armed robbery, contrary to Section 1(2)(a) of the Robbery and Firearms (Special Provisions) Act, Cap. R11, Laws of the Federation of Nigeria, 2004.

At the end of the trial, the Appellant was convicted of conspiracy to commit armed robbery and armed robbery as charged in counts 1, 2 and 3 by the trial Court and sentenced to death by hanging. The judgment of the trial Court delivered on 24th August, 2020 is at pages 85–133 of the Record of Appeal. Dissatisfied with the said judgment of the trial Court, the Appellant has appealed to this Court vide a Notice of Appeal filed on 11th September, 2020. The Notice of Appeal is at pages 136–137 of the Record of Appeal.

However, the extant Notice of Appeal is the Amended Notice of Appeal filed on 30th March, 2021 and deemed properly filed by this Court on 2nd of November, 2021. The Record of Appeal was duly transmitted to this Court on the 27th of October, 2020. The Appellant’s Brief of Argument which was filed on the 30th of March, 2021 was similarly deemed properly filed on the 2nd of November, 2021. ​The record of this Court shows that the Respondent who was served with the Appellant’s Brief of Argument since the 1st of April, 2021 did not file any Brief of Argument in response to the appeal.

Again, on the 20th of January, 2022 when the appeal came up for hearing, the Respondent who was duly served with a hard copy of hearing notice on the 11th of January, 2022, through the Office of the Hon. Attorney-General of Ogun State was absent.

The learned Counsel for the Appellant, who had earlier filed an application under the old Court of Appeal Rules, 2016 praying the Court to hear the appeal on the Appellant’s Brief alone, withdrew the application and urged the Court to invoke its powers under the new Court of Appeal Rules, 2021 and proceed to hear the appeal on the Appellant’s Brief alone. Thereupon, this Court invoked Order 19, Rule 10(3) of the new Court of Appeal Rules, 2021 and proceeded to hear the appeal on the Appellant’s Brief of Argument alone. In the Appellant’s Brief of Argument adopted by R. U.

Ezeani Esq, the following four issues were distilled for determination: 1. Was it lawful to convict the Appellant of conspiracy to commit armed robbery when the offence is not defined in a written law? (Ground 14) 2. Was the learned trial Judge right to admit and rely on the unsigned extrajudicial statements, Exhibits E, F & G1? (Grounds 2, 6 & 16) 3. Was it not wrong of the learned trial Judge to hold that the Appellant adopted the purported confessional statements of his co-accused and that the Appellant is guilty of the offences charged? (Grounds 1, 3, 4, 5, 9, 10, 11, 12, 15 & 17) 4.

Was the alibi raised by the Appellant investigated or considered by the learned trial Judge? (Grounds 7, 8 & 13). Since there is no Respondent’s brief, I shall decide the appeal based on the above four issues raised by the Appellant.

ISSUE ONE: Was it lawful to convict the Appellant of conspiracy to commit armed robbery when the offence is not defined in a written law? ​SUBMISSIONS OF THE APPELLANT ON ISSUE 1: Learned Counsel for the Appellant had submitted that Count 1 of the Information charged the Appellant with the offence of conspiracy to commit armed robbery punishable under S. 1(2)(a) & (b) of the Robbery and Firearms (Special Provisions) Act. He argued that the Act did not define the offence of conspiracy but the Appellant was convicted nevertheless.

He submitted that the only provision of the Act that refers to or mentions conspiracy is Section 6(b) of the Robbery & Firearms Act. He further stated that the ingredients of the offence are thus unknown and that the Constitution prohibits conviction for an offence not defined in a written law. He cited Section 36(12) of the 1999 Constitution as amended.

He stated that the failure to define conspiracy or ‘to conspire’ may be contrasted with the treatment of the offence of armed robbery which is well and clearly defined in the said Act under Sections 1 and 11 of the Robbery and Firearms (Special Provisions) Act. In concluding the arguments on this issue, Counsel relied on the case of HARUNA v THE STATE (1972) 8–9 SC 174 at 200–201, wherein the definition of conspiracy under the English common law was adopted.

He contended that since Section 36(12) of the Constitution forbids the trial of any person for an offence not defined in a written law and Section 1(1), (3) of the same Constitution makes null and void any law which is contrary to the Constitution, this Court should hold the provision purporting to create the offence of conspiracy to commit armed robbery as void and set aside the conviction of the Appellant and acquit him of the said offence. He relied on AOKO v FAGBEMI (1961) All NLR 400. He urged the Court to resolve this issue in favour of the Appellant.

RESOLUTION OF ISSUE 1: The central argument of the Appellant under this issue is that the offence of conspiracy to commit armed robbery for which he was convicted by the trial Court was not defined as required by Section 36(12) of the Constitution of the Federal Republic of Nigeria, 1999 (CFRN).

Section 36(12) of the CFRN relied upon by the Appellant provides: Subject as otherwise provided by this Constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty therefore is prescribed in a written law; and in this subsection, a written law refers to an Act of the National Assembly or a Law of a State, any subsidiary legislation or instrument under the provisions of a law.

In interpreting Section 33(8) of the 1979 Constitution, which is in pari materia with the above quoted Section 36(12) of the CFRN, the Supreme Court, per Karibi-Whyte, JSC held in SELE v STATE (1993) LPELR-3030(SC), that: “It is a cardinal principle of our concept of criminality, and which is protected by our Constitution, that a person can only be charged with and convicted for an offence recognised by the law and in existence at the time the act alleged was committed – See S.33(8) of the Constitution 1979. This is the hallowed and sacred principle of legality.

It is because of its importance and high public policy that the legislative jurisdiction of the legislature is also excluded from having retrospective effect in relation to any criminal offence whatsoever. (page 18 para. A).” ​In essence, what Section 36(12) of CFRN stipulates is that an offence is only an offence if it is so provided in a written law and its penalty also so prescribed, and no one shall be convicted of an offence which is not provided for and its penalty not prescribed in a written law.

By the established judicial authorities, the requirement for the legal provision of an offence in a written law before a person can be tried and convicted for it, will be generally satisfied where the act or omission which constitutes the offence is made an offence and a penalty for its commission or omission is provided in a written law. It is however pertinent to point out that ordinary English words are used in stating the nomenclature of the act or omission which is made an offence.

For instance, the word “conspiracy” is actually a noun for the verb “conspire” which means to agree to do something or forbear from doing something. It is, in essence, an agreement to undertake a course of action or to refrain from acting. Thus, in criminal law jurisprudence, it can only mean an agreement to commit a crime (whether by act or by omission).

In STATE v YUSUF & ANOR (2006) LPELR-11802(CA), this Court, per Ngwuta, JCA (as he then was) had observed that even as the offence of conspiracy had been provided for in the Criminal Code, neither the Criminal Code nor the Criminal Procedure Law, has defined conspiracy, and that in the case of MAJEKODUNMI v R (1952) 14 WACA 64, the West African Court of Appeal had to apply the definition of conspiracy made by Willes, J. in Mulcahy v.

R (1868) L.R. 3 H.L. 306 at 317, thus: “A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act or do a lawful act by unlawful means. So long as a design rests in intention only, it is not indictable.

When two agree to carry it into effect, the very plot is an act in itself … punishable if for a criminal object or for the use of criminal means.” ​Although the Criminal Code has only criminalized conspiracy in Section 516 but has failed to define same, the Penal Code has in Section 96(1) provided that “when two or more individuals agree to commit or cause to be committed (a) an unlawful act, or (b) a lawful act through an unlawful means; such an arrangement is referred to as a criminal conspiracy.

Thus, contrary to the assertion of the learned Counsel for the Appellant in paragraph 4.6 of the Appellant’s Brief of Argument that there is no definition of conspiracy in any written law in Nigeria, the word “criminal conspiracy” has been defined in the Penal Code Law as shown above.

Now, in KAZA v THE STATE (2008) LPELR-1683(SC), the Supreme Court, per Tobi, JSC had while considering the definition of conspiracy, referred to Black’s Law Dictionary and held as follows: Black’s Law Dictionary defines conspiracy as a combination or confederacy between two or more persons formed for the purpose of committing, by their joint efforts, some unlawful or criminal act, or some act which is lawful in itself, but becomes unlawful when done by the concerted action of the conspirators, or for the purpose of using criminal or unlawful means to the commission of an act not in itself unlawful.

See Black’s Law Dictionary (Sixth edition) page 309. This most comprehensive definition says it all. The bottom line of the offence is the execution of an unlawful purpose by an unlawful means. And that unlawful purpose is the criminality involved. While the words “combination” and “confederacy” may in general parlance generally convey the same meaning with conspiracy, the latter parts ways with the former in one basic respect and it is the doing of an unlawful or an illegal act.

While I concede that the unlawful or illegal nature of an act could also be found in combination and confederacy, that is better reserved to conspiracy in criminal law, as an agreement between two or more persons to behave in a manner that will invariably or automatically constitute the commission of an offence by two persons or by at least one of them. The offence of conspiracy can only be committed if there is a meeting of two or more minds.

The offence cannot be committed by one person because that person cannot be convicted as a conspirator, the meaning of which is one involved in a conspiracy.” In essence, the offence of conspiracy in our criminal jurisprudence has come to be legally defined as an agreement by two or more persons to do an unlawful act, or a lawful act by unlawful means: ADEPOJU v STATE (2018) LPELR-44355(SC), per Eko, JSC at pages 7–8, para. E; SMART v STATE (2016) LPELR-40827(SC), per 27–28, para. F; KOLAWOLE v STATE (2015) LPELR-24400(SC), per Peter-Odili, JSC at pages 28–29, para.

G; and WISDOM & ANOR v STATE (2013) LPELR-21451(CA), per Dongban-Mensem, JCA (as he then was, now PCA), at pages 20–21, paras. C. On the specific offence of conspiracy to commit armed robbery for which the Appellant was convicted, the Robbery and Firearms (Special Provisions) Act, Cap R11, Laws of the Federation of Nigeria has provided in Sections 1–5 the offences and penalties for robbery, attempted robbery, illegal possession of firearms, sheltering and treating armed robber and receiving property obtained by means of any of the offences created under the Act.

The Act then proceeds to provide in Section 6(a), (b) and (c), the offences and punishment for aiding, abetting or procuring the commission of any of those offences; conspiring to commit any of those offences; or supplying, procuring or providing any person with firearms for use in committing any of those offences.

Specifically, paragraph (b) of Section 6 states that: Any person who – (a) … (b) conspires with any person to commit such an offence; or (c) … whether or not he is present when the offence is committed or attempted to be committed, shall be deemed to be guilty of the offence as a principal offender and shall be liable to be proceeded against and punished accordingly under this Act.

It is therefore clearly discernible from the above provision and the judicial authorities cited supra, that the offence of conspiracy to commit armed robbery has been duly provided for in Section 6(b) of the Robbery and Firearms (Special Provisions) Act, Cap R11, LFN, 2004. As I said earlier, all that is required to satisfy the stipulation in Section 36(12) of the Constitution which is relied upon by the Appellant is for the written law to stipulate the act or omission as an offence and prescribe a penalty for it.

The literal definition of the nomenclature of the act or omission which was made an offence may not necessarily be provided in the law, and that failure, in my considered view, does not make or render the offence created under the law inconsistent with the provision of Section 36(12) of the Constitution. ​Given the trite legal position on the definition of conspiracy as contained in numerous judicial decisions of the appellate Courts, some of which I have cited above, I find the contention of the Appellant under this issue grossly misconceived; one which did not take cognizance of the state of the law relating to the offence of conspiracy.

I therefore, have no hesitation in resolving this issue against the Appellant. It is hereby so resolved. ISSUE 2: Was the learned trial Judge right to admit and rely on the unsigned extrajudicial statements, Exhibits E, F & G1? SUBMISSIONS OF THE APPELLANT ON ISSUE 2: On this issue, learned Counsel for the Appellant submitted that the purported confessional statement made by the Appellant in Exhibit G1 is absolutely inadmissible.

Relying on the cases of ADELANI v STATE (2018) 5 NWLR (Pt. 1611) SC 26; and POPOOLA v STATE (2018) 10 NWLR (Pt. 1628) SC 485, where it was held that when an extra judicial statement is obtained with the aid of an interpreter, he must subscribe his name and signature on the statement and must testify at the trial before the statement can be admitted in evidence. He also cited Section 17(3) & (4) of the Administration of Criminal Justice Act, 2015 (ACJA), to the effect that the interpreter must write his name and sign the statement.

He pointed out that Exhibit G1, the Appellant’s statement was made in Yoruba and recorded in English, but the interpreter did not write his name and sign same as required. Counsel submitted that Sections 1(2) and 3 of ACJA enjoin strict compliance with its provisions. He further argued that going by the answer PW1 gave during cross-examination, he did not append his name or sign the statement. He added that the fact that I.P.O. was written on it as referring to PW1, does not aid the Respondent.

He submitted that by virtue of Sections 5, 129 & 130 of Evidence Act 2011, evidence is not allowed in a criminal trial to explain the meaning of an abbreviation in a document. He pointed out that the interpreter did not testify at the trial and as such Exhibit G1, the purported confessional statement of the Appellant is not admissible. He argued that being absolutely inadmissible hearsay evidence, it is immaterial that the Appellant’s Counsel at the trial did not object to the documents being tendered, since such evidence is absolutely prohibited by statute.

He relied on POPOOLA v STATE (supra). ​Learned Counsel submitted that the Appellant and the other co-accused persons have denied making the statements which raised the questions of fact as to whether each of them had made the statements in Exhibits G1, D, E & F. He submitted that the Respondent was bound to prove that Exhibit G1 was made by Appellant. He relied on Section 93(1) of the Evidence Act, 2011 and Section 18 of the Interpretation Act, 2004.

The Respondent was bound to establish beyond reasonable doubt, that the mark or thumb impression on Exhibit G1 purported to be that of the Appellant, was indeed his. However, the Respondent (prosecution) failed to prove that the thumb print on Exhibit G1 was made by the Appellant other than rely on the viva voce testimony of PW1 which is unreliable. He highlighted other facts that make Exhibit G1 unreliable and not credible.

These are; (1) As unsigned extrajudicial statement, Exhibit G1 is worthless. (2) The learned trial Judge relied on evidence of co-accused to find Exhibit G1 credible. (3) Exhibit G1 is inconsistent with other facts ascertained and proved. (4) It was not proved that the Appellant had opportunity to commit the crime charged. RESOLUTION OF ISSUE 2: This issue challenges the admission and reliance by the trial Court of Exhibits E, F and G1 on the ground that the statements were not signed.

With regard to the said Exhibits E, F & G1, it is pertinent to observe that before the trial Court, Exhibits E and E1; F and F1; and G1 and G2 were confessional statements made by the 2nd, 3rd and 4th Defendants (who is the Appellant herein), respectively, which were tendered by the Prosecution and admitted by the trial Court. Specifically, Exhibit E is the confessional statement of the 2nd Defendant (Festus Edegwa), while Exhibit E1 is an attestation for the said confessional statement in Exhibit E.

Similarly, Exhibit F is the confessional statement of the 3rd Defendant (Owolabi Idowu), while Exhibit F1 is its attestation.

As for the 4th Defendant who is the Appellant herein, he made two statements, first at the Ogijo Police Station which was admitted as Exhibit G, and second, which is the confessional statement he made at the Special Anti-Robbery Squad (SARS), Ogun State, which was admitted as Exhibit G1, while its attestation is Exhibit G2. ​The Record of Appeal shows at page 37 that when these confessional statements of the 2nd, 3rd and 4th Defendants as well as their respective attestations were tendered by the Prosecution through PW1 (Cpl.

Jamiu Salawudeen), the learned Counsel for the 2nd, 3rd and 4th Defendants did not object to the admissibility of the confessional statements. They only indicated that the 2nd, 3rd and 4th Defendants have denied making the said statements. The 4th Defendant only admitted making the non-confessional statement in Exhibit G which he made at Ojigo Police Station.

It is therefore clear from the printed record that at the point of the tendering the confessional statements in Exhibits E, F and G1 as well as their respective attestations in E1, F1 and G2, the learned Counsel for the 2nd, 3rd and 4th Defendants never raised any objection as to the admissibility of the said statements, other than denying that the said Defendants have made the statements. However, as rightly observed by the learned trial Judge at pages 117–118 of the record, the fact that a defendant has denied making a confessional statement does not render same inadmissible.

See: HARUNA v A.G. FEDERATION (2012) LPELR-7821(SC), per Galadima, JSC at page 16, para. A; IBRAHIM BATURE v THE STATE (1994) LPELR-760(SC), per Onu, JSC at pages 20–21, para. D; OSENI v STATE (2012) LPELR-7833(SC), per Ngwuta, JSC at pages 22–23, para. F; and C.O.P. v ALOZIE (2017) LPELR-41983(SC), per Nweze, JSC at page 19, para. A. I am conscious of the fact that the Appellant has made the contention that the statements should not have been admitted and relied upon because according to him, they are not signed.

As it relates to the admissibility of the documents, I have already pointed out that the 2nd and 3rd Defendants and the 4th Defendant (Appellant) raised no objection to the admissibility of the said confessional statements tendered and admitted as Exhibits E & E1, F & F1 and G1 and G2 by the trial Court.

Hence, they made no protest that the said statements were not signed and there was no pronouncement or decision of the trial Court on that issue. ​ Although, it is generally trite that failure by a party to raise objection to admissibility of a document at trial will bar the party from raising such objection on appeal, the exception is that such objection can be raised where the document is by law inadmissible in any event. See: JOHN & ANOR v STATE (2011) LPELR-8152(SC), per Muhktar, JSC at page 17–19, pars. F; and JOHN v STATE (2017) LPELR-48039(SC), per Muhammad, JSC at pages 54–55, para. E.

Now, it is settled that an unsigned document is legally worthless and void, and same may not be inadmissible in evidence. This point was made by Tobi, JSC in OMEGA BANK (NIG) PLC v O.B.C. LTD (2005) LPELR-2636(SC), when he held that: “Let me first take the issue of signing a document. In Ojo v.

Adejobi (supra) cited by learned Counsel for the appellant, the Court said at page 165: “The Court cannot in any event ex debite justitiae, ignore a situation in which the foundation of a claim to a preparatory legal interest are based on a worthless, unsigned and inadmissible document.” In AG Abia State v. Agharanya (supra) also cited by learned counsel for the appellant, the Court said at page 371: “It is well settled that an unsigned document is worthless and void.” Learned Counsel for the respondent tried to distinguish the above cases from the present one. With respect, he did not succeed.

It is my view that where a document is not signed, it may not be admitted in evidence. Even if it is admitted in evidence, the Court should not attach any probative value to it. This is because a document which is not signed has no origin in terms of its maker. In view of the fact that the two makers or writers of exhibit P6 did not sign the exhibit, it was not available to the two Courts to attach probative value on it.” See also: MAKU v AL-MAKURA & ORS (2016) LPELR-48123(SC), per Onnoghen, JSC at pages 24 – 25, para. A.

The question then is whether the said confessional statements of the 2nd, 3rd and 4th Defendants admitted by the trial Court are unsigned and therefore inadmissible in law. As earlier shown above, the confessional statements admitted as Exhibits E, F and G1 were actually admitted together with their attestations which were admitted as Exhibits E1, F1 and G2, respectively.

A look at the confessional statements in Exhibits E, F and G1 shows as follows: Exhibit E: Exhibit E, which is the confessional statement of the 2nd Defendant Festus Edegwa, was recorded in English language and it was actually signed by the 2nd Defendant both at the cautionary column and at the end of the statement. At the column for endorsement by the recorder of the statement the letters I.P.O. were written and dated 5th June, 2017 and stated to be taken between 3:30 pm to 5:20 pm.

Exhibit E1: However, Exhibit E1 which is titled ATTESTATION FORM, CONFESSIONAL STATEMENT TO THE POLICE, shows that the 2nd Defendant has endorsed that he was cautioned and that he voluntarily made the confessional statement to the Police which was reduced into writing, read over to him and that he signed same. After the 2nd Defendant signed same, the attestation was then endorsed by Cpl. Jamiu Salaudeen as the Interpreter and dated the 5th of June, 2017. Exhibit F: Exhibit F, is the confessional statement of the 3rd Defendant Owolabi Idowu.

It was recorded in English language and translated to the 3rd Defendant in Yoruba language. The statement was also signed by the 3rd Defendant both at the cautionary column and at the end of the statement. At the column for endorsement by the recorder of the statement the letters I.P.O. were written and dated 12th June, 2017.

Exhibit F1: However, in Exhibit F1 which is the ATTESTATION FORM, CONFESSIONAL STATEMENT TO THE POLICE, it shows that the 3rd Defendant has also endorsed that he was cautioned and that he voluntarily made the confessional statement to the Police which was reduced into writing, interpreted and read over to him and that he signed same. After the 3rd Defendant signed the attestation, it was then endorsed by Cpl. Jamiu Salaudeen (PW1) as the Interpreter and dated.

Exhibit G1: Exhibit G1, which is the confessional statement of the 4th Defendant Idowu Mathew, who is the Appellant herein, shows that the Appellant was cautioned in Yoruba language and his statement was recorded in English language and interpreted to him in Yoruba language. The statement was thumb-printed by the Appellant both at the cautionary column and at the end of the statement and dated 4th April, 2017. At the column for endorsement by the recorder/intepreter of the statement the letters I.P.O. were written and dated 4th April, 2017.

Exhibit G2: In Exhibit G2 however, which is titled: ATTESTATION FORM, CONFESSIONAL STATEMENT TO THE POLICE, that the Appellant (4th Defendant) has endorsed (thumb-printed) that he was cautioned and that he voluntarily made the confessional statement to the Police which was reduced into writing, interpreted and read over to him and that he signed same. After the Appellant (4th Defendant) signed same, the attestation was then endorsed/signed by Cpl. Jamiu Salaudeen (PW1) as the Interpreter and dated the 4th of April, 2017.

As stated earlier, the record of proceedings of the trial Court contained at page 37 of the printed record of this appeal shows that the confessional statements of the 2nd, 3rd and the Appellant (who is the 4th Defendants) which were admitted as Exhibits E, F and G1, were tendered with their respective attestation forms for confessional statements (Exhibits E1, F1 and G2), which, as also shown above, were duly signed/endorsed by the 2nd, 3rd Defendants and the 4th Defendant (Appellant) and duly signed by PW1, Cpl. Jamiu Salaudeen.

While giving his evidence and tendering these confessional statements, PW1 had stated that he was the I.P.O. who investigated the case and recorded the said confessional statements of the 2nd, 3rd and 4th Defendants and had executed each of the attestation forms together with the said Defendants. ​From the forgoing therefore, it is evident that the argument of the learned Counsel for the Appellant that the confessional statements of the 2nd, 3rd and 4th Defendants in Exhibits E, F and G1 were not signed by the recorder/interpreter is incorrect, in that PW1, the Investigating Police Officer, Cpl.

Jamiu Salawudeen who recorded/interpreted those statements had not only duly signed the Confessional Statement Attestation Forms tendered with those statements they were also duly signed by the 2nd, 3rd and 4th Defendants, and he had given evidence in Court as to how he recorded the said statements of the 2nd, 3rd and 4th Defendants.

Interestingly, and not surprisingly, the learned Counsel for the Appellant has obscured the fact that the each of those confessional statements in Exhibits E, F and G1 was tendered with its Confessional Statement Attestation Form duly signed by the 2nd, 3rd Defendants and the 4th Defendant (Appellant), respectively and duly signed/endorsed by PW1, Cpl. Jamiu Salaudeen, as the recorder/interpreter. It is therefore clearly evident that contrary to the contention of the Appellant, the confessional statements in Exhibits E, F and G1 were duly signed.

I so find and hold. ​Since it is evident from Exhibits E, E1, F, F1 and G1 and G2 that the confessional statements of the 2nd and 3rd Defendants and the 4th Defendant (Appellant) were duly signed, I hold that the said statements (including Exhibit G1, the Appellant’s confessional statement) were properly admitted and acted upon by the trial Court. I thus resolve issue 2 against the Appellant. ISSUE 3: Was it not wrong of the learned trial Judge to hold that the Appellant adopted the purported confessional statements of his co-accused and that the Appellant is guilty of the offences charged?

SUBMISSIONS OF THE APPELLANT ON ISSUE 3: It was submitted on behalf of the Appellant that the Appellant did not adopt Exhibits D, E & F, contrary to what the learned trial Judge held. It was pointed out that the learned trial Judge had held that the Appellant adopted the incriminating facts stated against him by his co-accused in their purported statements in Exhibits D, E & F. But the learned Judge failed to realize that the matter of adoption of evidence of co-accused by the Appellant was a matter exclusively governed by the Evidence Act.

It was further argued that by virtue of Sections 29(4) & 199 of the Evidence Act, 2011, the Court should not have considered the evidence of co-accused against the Appellant unless the confession was made in his presence and he adopted it by words or conduct, while the latter Section allows incriminating evidence of an accomplice to be considered against an accused person; it provides that a person tried jointly with the accused, i.e. his co-accused must not be considered as an accomplice for the purposes of the Section.

It was further submitted that the Appellant is not guilty as found by the trial Judge for the following reasons: (a) the items tendered in evidence as stolen items were not proved to belong to the alleged victims of the armed robbery, i.e. PW2 and PW3; (b) there are material contradictions in the evidence of Prosecution witnesses and their evidence was unreliable; and (c) the learned trial Judge misdirected himself on the evidence. It was argued that there were contradictions in the testimonies of PW1 and between the testimonies of PW2 and PW3.

It was similarly argued that the evidence and extrajudicial statement of PW4 were also contradictory and the learned trial Judge believed and relied solely on the testimony of PW1. Reference was made to page 118, lines 17–18 and 25–27 of the Record of Appeal. As for PW2 and PW3, it was argued that the totality of PW2’s evidence showed that he knew the Appellant prior to the armed robbery and yet could not identify the Appellant as one of the armed robbers, while PW3 identified the Appellant as one of the robbers.

And while PW4 testified that PW2 was there when Sanni and the Appellant were arrested and that Sanni told the Police it was one Uche who sold the phone to him and that the Appellant got arrested at Uche’s house, PW2 and PW3 stated that the Appellant is neither Uche nor the one who sold the phone to Sanni, and that the house where the Appellant was arrested was not the Appellant’s house but Uche’s. He further argued that the above contradictions are material contradictions which relate to the ingredients of the offences charged.

He cited ORISA v THE STATE (2018) 11 NWLR (Pt. 163) SC. 453, where the Court held that where a witness made an extra-judicial statement to the police which is inconsistent on a material point with his testimony in Court, the testimony is to be regarded as unreliable while the extra judicial statement is not evidence on which a Court can act. RESOLUTION OF ISSUE 3: It is settled law that a confessional statement of an accused person is only evidence against him. It cannot be evidence against other accused person(s).

In other words, the confessional statement of an accused person implicating another accused person is only deemed to be relevant for the person who made it. It cannot be used as evidence against that other accused person unless he adopts it. See: Section 29(4) of the Evidence Act, 2011 and the cases of GBADAMOSI & ANOR v STATE (1992) LPELR-1313(SC), per Ogundare, JSC at page 29, para. D; IBRAHIM v STATE (2014) LPELR-23291(CA), per Galinje, JCA at pages 26–27, para. D; EMMANUEL v STATE (2015) LPELR-41676(CA), per Gumel, JCA at page 33 para.

C; and AHMED v KANO STATE (2017) LPELR-43224(CA), per Daniel-Kalio, JCA at pages 14–15, para. C. ​At page 119 of the printed Record of Appeal, the learned trial Judge started by restating this trite position when he held that: “It is the evergreen position of the law that a confessional statement made by one accused person is only evidence against him and not constitute evidence against a co-accused except he adopted it.

See OZAKI & ANOR VS STATE (1990) LPELR-2888 SC, See aslo YUSUF & ANOR VS STATE (2019) LPELR-46945 SC.” However, after restating the above trite principle of law as stated in OZAKI & ANOR VS STATE and YUSUF & ANOR VS STATE, the learned trial Judge proceeded to hold as follows: “In this instant case I wish to bring out a distinction which the facts in this case reveal which contain a variant on the facts from the decisions cited above.

While the 1st, 2nd and 4th Defendants in Exhibit E, G1 and F gave evidence incriminating each other as part of those who robbed the PW2 and PW3 while armed with offensive weapon as charged they all now including the 3rd Defendant in each of those statements credited to them confessed each to being participis criminis in committing the armed robbery on PW2 and PW3 thus in this case their participation in the robbery in those statements credited to them as stated by their other co-accused as they themselves confessed in their statements to the police as committing the armed robbery charged.

Thus in this case, as it were it is not only a matter of giving incriminating facts against B and C but B and C also confessing to commit the offences they are incriminated of being a part of.

Thus I find that those statements Exhibit E, F and G1 if proved against each of them in (sic) good evidence against each of the 2nd, 3rd and 4th Defendants who are charged on counts 2 and 3 of the Amended Charged (sic).” There is no doubt that the above holding of the learned trial Judge which attempts to use the incriminating evidence contained in the confessional statements of each of the accused persons against their co-accused, runs counter to the trite principle in OZAKI & ANOR VS STATE and YUSUF & ANOR VS STATE, which he had earlier cited.

The point must be made that the import of this trite principle of law is such that even if there are a hundred accused persons in a joint trial and each of them makes a confessional statement incriminating the others, such incriminating evidence cannot be used against those others unless each of them adopts same. A confession is therefore, only relevant evidence for the accused person who made it and same will be assessed independent of whatever incriminating evidence may exist against him in the confessions of other co-accused persons.

As rightly observed by the learned Counsel for the Appellant, before incriminating evidence in the confessions of the other accused persons can be used against the Appellant it must have been made in the presence of the Appellant and the Appellant must have adopted it. Section 29(4) of the Evidence Act, 2011 is very explicit on this.

The Section expressly provides: Where more persons than one are charged jointly with an offence and a confession made by one of such persons in the presence of one or more of the other persons so charged is given in evidence, the Court shall not take such statement into consideration as against any such other persons in whose presence it was made unless he adopted the said statement by words or conduct. (underlining mine for emphasis). ​In this case, there was no evidence led before the trial Court that each of the 2nd, 3rd and 4th Defendants made the confessional statements in Exhibits E, F and G1, respectively in the presence of one another and that each of them adopted the incriminating evidence against them contained in the confessional statements of their co-defendants.

In the absence of such evidence, the attempt by the learned trial Judge to use the incriminating evidence in the confessional statement of each of the Defendants as corroborating evidence of the confessional statement of the other Defendants clearly runs counter to the established legal principle expressly provided in Section 29(4) of the Evidence Act, 2011 and reiterated in GBADAMOSI & ANOR v STATE (supra); IBRAHIM v STATE (supra); as well as OZAKI & ANOR VS STATE (supra); and YUSUF & ANOR VS STATE (supra), referred to by the learned trial Judge.

His holding is therefore clearly perverse and I so hold.

The issue then is whether apart from the incriminating evidence in the other confessional statements which the learned trial Judge wrongly regarded as corroborating the Appellant’s confessional statement in Exhibit G1, there are other evidence upon which the trial Court could find the Appellant guilty as charged. ​The essential argument of the Appellant is that since the Appellant had denied making the confessional statement in Exhibit G1, the learned trial Judge failed to resolve whether the Appellant actually made the statement before applying the rule relating to weight as stated in OGUNDIPE v QUEEN (supra), and thus had occasioned miscarriage of justice.

It is settled law that when a confessional statement which is admitted in evidence is retracted as was done by the Appellant in this case, the Court should test its truthfulness and veracity by examining same in the light of other credible evidence in order to determine what weight to attach to it.

In other words, the Court should consider: (a) whether there is anything outside the confession to show that it is true; (b) whether the confession is corroborated; (c) whether the facts contained in the statement are true as far as they can be tested; (d) whether the defendant had the opportunity to commit the offence; (e) whether the confession is possible; and (f) whether it is consistent with other facts ascertained and proved at trial. See: R v SKYES (1913) 1 Cr. App. R. 233; ALAO v STATE (2019) LPELR-47856(SC), per Aka’ahs, JSC at page 22, para.

A; KOLAWOLE v STATE (2015) LPELR-24400(SC), per Galadima, JSC at pages 40 – 41, para. G; AGBOOLA v STATE (2013) LPELR-20652(SC), per Ariwoola, JSC at page 37, para. A; and OSENI v STATE (2012) LPELR-7833(SC), per Ngwuta, JSC at pages 24–25, para. E.

A look at the Record of Appeal shows that apart from the finding of the trial Court that the confessional statements credited to the 2nd, 3rd and 4th Defendants have corroborated each other which I have found to be perverse to the established principle of law, the learned trial Judge had indeed considered how the evidence of the prosecution witnesses had corroborated the confessional statements of the Defendants, including Exhibit G1 credited to the Appellant.

Specifically, the learned trial Judge held at pages 121–123 of the Record as follows: “A look at the contents of the confessional statements credited to the 2nd, 3rd and 4th Defendants Exhibit E, F and G1 reveal certain facts which were also the highlights of the evidence of the PW2 and PW3. The 3rd Defendant in Exhibit F stated that the house where they i.e. himself and other robbers robbed is at Eyita Zone III and they stole his Lexus 330 Jeep. The PW2 and PW3 testified unequivocally that PW3’s Lexus Jeep was stolen on the night of the incident of the armed robbery on them.

PW1 testified that the Lexus Jeep was traced to Cross River State only to discover one George a car dealer had sold it in Cameroon. In fact, George is at large; his brother was charged before the Magistrate Court over the matter. PW1s evidence was also not shaken under cross-examination as to how he arrested the 2nd, 3rd and 4th Defendants. His evidence was not shaken that it was a girlfriend of the 2nd Defendant who assisted in getting him arrested.

The evidence of PW1 was not also contradicted that PW1 got 2nd Defendant arrested when his phone number was tracked and his girlfriend’s number was gotten… The 4th Defendant in Exhibit G denied committing the armed robbery charge however in Exhibit G1 he gave the number of persons who went to rob PW3 as six and they went to rob in PW3’s house with a gun. The PW2 and PW3 also led evidence the number of robbers who came to rob them as five or six. The PW2 and PW3 also led evidence the robbery was carried out with a gun, this the 2nd Defendant has confirmed.

Learned Counsel for the 4th Defendant had suggested that 4th Defendant’s statement in Exhibit G was exculpatory, hence Exhibit G1 credited to him which is a confessional statement is suspect as to the 4th Defendant’s confession of the armed robbery. I wish to state that the facts in Exhibit G1 seem to tally with PW2 and PW3’s testimony as to how many people robbed PW3 and the fact that the robbers were armed.

I find that the evidence of PW1, PW2 and PW3 serve as corroboration for Exhibits E, F and G1.” It is therefore clear from the above holding of the learned trial Judge that he had duly evaluated the confession of the Appellant in Exhibit G1 and found the evidence of PW2 and PW3 to have corroborated same. Thus contrary to the submission of the Appellant under this issue, the conviction of the Appellant was not solely based on the trial Court’s finding that the confessions of the 2nd, 3rd and 4th Defendants corroborate each other.

It is consequent upon this, that I resolve this issue against the Appellant and hold that, even as the trial Court’s finding that the Appellant had adopted the confessional statements of his co-accused was perverse, it was not the sole reason upon which the Appellant was found guilty of the offences charged, as his confessional statement in Exhibit G1 was found to have been credible, having been corroborated by other evidence of the Prosecution witnesses. ISSUE 4: Was the alibi raised by the Appellant investigated or considered by the learned trial Judge?

SUBMISSIONS OF THE APPELLANT ON ISSUE 4: The Appellant began by stating that the Court of Appeal has the duty to examine the grounds for the conclusions and inferences of the trial Court. He cited AGBANYI v THE STATE (1995) 1 NWLR (Pt. 369) 1 at 22 B–G to back up the above point.

In the course of the learned trial Judge’s judgment, he held that: “All of the above reveals that the 4th Defendant’s defence is balderdash or baloney and pure nonsense in the light of all surrounding evidence linking him to the Armed Robbery Charge, E. g Exhibit G1 and the evidence of PW 1” the Appellant stated that there was no basis for the learned trial Judge to have found the Appellant to be an untruthful witness; as there was nothing contradictory of Appellant’s oral testimony (where he did not deny knowing Uche) from Exhibit G. Both are reconcilable.

In Exhibit G as well, he did not deny knowing Uche”. He continued by stating that Appellant’s alibi was not investigated by the police or considered by the learned trial Judge. In Exhibit G, the Appellant stated that he did not partake in the armed robbery as he was at home on the fateful day. This was made immediately after he was arrested by PW4 at the Divisional Police Station, Ogijo. The arrests of the Appellant by PW4 and carting away property or conducting search on the Appellant’s house are not ways of investigating alibi.

PW4 did not testify that he made any enquires from anyone about the Appellant’s where about on the night of the robbery. Also, when the case was transferred to Federal SARS, they also failed to investigate the alibi. He went further to state that the learned trial Judge did not also consider the alibi as he dismissed the defence in one sentence as “balderdash or baloney and pure nonsense”.

He cited ESANGBEDO v THE STATE (1989) 4 NWLR (Pt. 113) SC 57 to back-up the fact that learned trial Judge had a duty to test that the defence of alibi against the evidence led by the prosecution and make a finding one way or the other. He stated that the effect of the failure of the learned trial Judge to test the defence is that he did not resolve all reasonable doubts in the Appellant’s favour. OKONKWO v THE STATE (1998) 4 NWLR (Pt. 544) 142 CA.

He finally concluded that this Honorable Court is respectfully urged to allow this appeal and set aside the conviction and sentence against the Appellant. RESOLUTION OF ISSUE 4: The essential contention of the Appellant under this issue is that the alibi raised by the Appellant in his Exhibit G that he was at home and did not participate in the robbery was never investigated or considered by the trial Court.

It is settled law that for a defence of alibi to be successfully raised, it must be raised at the earliest opportunity when the defendant is confronted with the commission of the crime, in order to afford the Police the opportunity of investigating and debunking same is they could: DAWAI v STATE (2017) LPELR-43835(SC), per Okoro, JSC at pages 15–16, para. C; ADEYEMI v STATE (2017) LPELR-42584(SC), per Peter-Odili, JSC at page 16, para. A; EBENEHI & ANOR v STATE (2009) LPELR-986(SC), per Ogebe, JSC at page 13, para. A; and MOHAMMED v STATE (2015) LPELR-24397(SC), per Nweze, JSC at page 46, para.

D. In the instant case, the argument of the Appellant is that he had stated in his first statement admitted as Exhibit G that he was at home and the Police did not investigate same and the learned trial Judge never considered same. In his statement made at the Ojigo Police Station on the 1st of April, 2017, the Appellant stated inter alia that: “I know one Uche at Sawmill Ojigo through his younger brother Joseph that is during scrap business at Camalo. I don’t know where Uche is living. I also know one Okafor a friend of Uche.

I know how to get Okafor and I believe if we can get Okafor to get Uche it will be very easy. On the 25/26-03/2017 I was at my house behind Sawmill Ojigo. I did not aware (sic) that Uche and his friend went and rob (sic) at Giyta Zone IV. I did not followed (sic) Uche and his friend to any robbery operation because I am not an armed robber. I never rob (sic) in my life. That is all about my statement now.” ​ In the case before the trial Court, the Prosecution presented PW1 (Cpl. Jamiu Salawudeen) and PW4 (Sgt.

Michael Julius) who investigated the case at the Special Anti-Robbery Squad (SARS), Magbon, Abeokuta and at Ojigo Police Station respectively. Going through their testimonies, PW1 had stated at page 42 of the Record that he never visited the 4th Defendant’s (Appellant’s) house.

But PW1 who investigated the matter at the Ojigo Police Station stated at pages 52–53 of the Record that when the complainants (PW2 and PW3) who had earlier reported that they were robbed, came back to inform him that they have seen one of the handsets stolen from them at a Ojigo Sawmill where it was being charged, he led a team to the place where they arrested one Sanni who stated that he bought the handset from one man called “Yellow” and led them to the 4th Defendant (Appellant) whom he said is also called “Yellow”.

PW4 also stated that after arresting the Appellant at his house, he executed a search warrant in the Appellant’s house and recovered one Plasma TV with remote control. On cross-examination, PW4 reiterated that the said Sanni had stated that the Appellant was also known as “Yellow”.

Even as there is no indication from the evidence of the police officers (PW1 and PW4) who investigated the matter that they have investigated the Appellant’s assertion that he was at his house on the 25-26/03/2017, the settled law is that even if the Prosecution has failed to investigate same, the burden is on the Appellant who asserted the alibi to substantiate same with credible evidence. In NNAMDI OSUAGWU v THE STATE (2013) LPELR-19823(SC), the Supreme Court, per Rhodes-Vivour, JSC reiterated this settled position when he held at page 22, para.

D–D, that: “It is long settled that it is the duty of the appellant putting forward the defence of alibi to adduce evidence to sustain his alibi and this entails calling witnesses to support his case that he was not at the scene of the crime but somewhere else.” Also, in ATTAH v THE STATE (2010) LPELR-597(SC), the Apex Court, per Adekeye, JSC, held at pages 33–36, para. F, that: “The onus of establishing alibi, being a matter within the personal knowledge of an accused person, lies on him.

That it is not enough for the accused person to say to the Court that he was at a particular place away from the scene of this crime. That he has to prove his assertion. That even if the police has failed to investigate such assertion, the accused person has the onus of adducing evidence on which he relies for his defence of alibi. In effect, it does not automatically mean that failure of the police to investigate will result in failure of the prosecution’s case.

The onus is on the accused person to establish the plea of alibi raised by him on the balance of probabilities.” In the instant appeal, the Appellant’s defence is at pages 64–66 of the printed Record of Appeal. In his testimony before the trial Court, the Appellant had stated that while he was in his Shop on the 30/03/2017 a Toyota Camry vehicle parked in front of his shop and three men came out and asked him if he knew Uche because they were looking for him and they were told he lived in the area. He said he told them that he was new in the area and had just started trading in the area.

He said he referred them to a woman who sells near his shop who told them that Uche was one of the men who issued tickets to traders in the area. He said the three men suddenly grabbed him and told him he was lying when he said he did not know Uche. He stated that he was slapped and beaten by the three men who handcuffed him and took him to the police station. He said at the Police Station he made a statement at Ojigo Police Station which he identified as Exhibit G. He said he was later transferred to SARS Office Magbon Abeokuta.

He denied knowing PW1 or volunteering any statement at SARS Office at Magbon, Abeokuta, claiming that one Mr. Gboye was the officer who attended to him at the Magbon SARS Office. He also denied knowing any of the co-Defendants. In essence, the Appellant led no evidence to establish his claim that he was in his house on the 25-26/03/2017 as he asserted in Exhibit G. He failed to discharge the burden on him to establish the alibi he raised on the balance of probabilities as required of him.

It is instructive that the learned trial Judge had duly appraised the Appellant’s defence both as it relates to his statements in Exhibit G and G1 and also as to his evidence in open Court, and at page 124 of the Record of Appeal, the learned trial Judge held that: “I wish to state at this stage that the 4th Defendant is not a witness of truth, as in his evidence in Court he stated he know (sic) Uche only as a ticket officer but in Exhibit G, which he claimed he made he stated that he knew Uche and even Uche’s younger brother.

I reiterate that learned Counsel though submitting that Exhibit G exculpates him but Exhibit G also in my view reveals that he has contradicted himself as to knowledge of Uche who is one of the persons at large who sold PW2’s phone to the Hausa man who went to charge the phone i.e. G-Tide phone yet again it is the evidence of PW1 that 4th Defendant was arrested when they went to look for the said Uche. The 4th Defendant also in Exhibit G1 confirmed it was Uche who introduced him to robbery.

The above reveals that the 4th Defendant’s defence is balderdash or baloney and pure nonsense in the light of all surrounding evidence linking him to the armed robbery charge e.g. Exhibit G1 and the evidence of PW1.” ​ It is trite that evaluation of evidence and ascription of probative value thereto is the primary duty of the trial Court which has the advantage of seeing, hearing and observing the demeanour of the witnesses. See: EDWIN v STATE (2019) LPELR-46896(SC), per Muhammad, JSC at page 28, para. C; and OKEOWO v A.G.

OF OGUN STATE (2010) LPELR-2442(SC), per Onnoghen, JSC (as he then was) at pages 6–7, para. E. An appellate Court will therefore not interfere with such a finding of fact unless it is shown that the trial Court failed to properly evaluate the evidence before it or its finding is perverse: BELLO v FRN (2018) LPELR-44465(SC), per Bage, JSC at pages 13–17, para. A; and IGBI & ANOR v STATE (2000) LPELR-1444(SC), per Ayoola, JSC at pages 14–15, para. E.

In other words, it is not the function of an appellate Court to retry the case on the evidence in the printed record and set aside the decision of the trial Court in order to substitute its own views. As long as the trial Court had properly appraised and evaluated the evidence before it, an appellate Court will not interfere. See:IGAGO v STATE (1999) LPELR-1442(SC), per Karibi-Whyte, JSC at page 27, para. E.

The party who complains against a finding of fact by a trial Court must therefore, show in what way the finding is wrong or perverse: KIWO v STATE (2020) LPELR-53900(SC), per Muhammad, JSC at page 30, para. D; and AMADI v A.G. IMO STATE (2017) LPELR-42013(SC), per Eko, JSC at page 12, para. B.

In the instant appeal, it is evident to me from the finding of the trial Court that it duly appraised the evidence before it and in the face of such evidence which is on the printed record, the Appellant’s mere and unsubstantiated assertion in Exhibit G that he was at his house on the 25-26/03/2017 was not fatal to the Prosecution’s case. The Appellant has therefore failed to show how the finding of the trial Court was perverse or had occasioned any miscarriage of justice. I therefore resolve this issue against the Appellant.

On the whole, the four issues in this appeal have been resolved against the Appellant, thus signposting that the appeal is devoid of merit. I therefore dismiss this appeal for being unmeritorious. The judgment of the trial Court, the High Court of Ogun State sitting at Sagamu, delivered on the 24th of August, 2020 in Suit No. HCS/47C/2018 is hereby affirmed.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had a preview of the lead judgment of my Lord, ABBA BELLO MOHAMMED, JCA which has just been delivered. I am in agreement with the lucid reasoning and resonating conclusion that the instant appeal is devoid of merit and the same should be dismissed. I wish to add a few comments for the purpose of emphasis and in affirmative support of the said lead judgment.

The Appellant argued that conspiracy is not an offence that was defined by an Act, therefore, it is unlawful to convict the Appellant when the offence is not defined under any written law as provided in Section 36(12) of the 1999 Constitution.

It is trite that the offence of conspiracy is the agreement of two or more persons to do an unlawful act, or to do a lawful act by unlawful means and the offence of conspiracy has a unique feature of being an offence usually concealed and often hatched in secret by the conspirators and so make it difficult to establish the physical contact among the persons who are said to have agreed. See NDOZIE V. STATE (2016) LPELR-26067(SC), OSAREREN V. FRN (2018) LPELR-43839(SC). ERIM V. THE STATE (1994) 5 NWLR (PT. 345) 522 AT 524 and OSONDU V. F.R.N. (2000) 12 NWLR (PT. 682) 483 AT 501-502.

And this definition has been the accepted position of law in our criminal jurisprudence that a Court can draw support where an accused is charged for the offence of Conspiracy. Contrary to the argument of the Appellant, it is clear from the provisions of various laws that the offence of Conspiracy was defined, criminalized and adequately provided in satisfaction of the provision of Section 36(12) of the Constitution. See Section 516 of the Criminal Code, Section 96(1) of the Penal Code and Section 6(b) of the Robbery and Firearms (Special Provisions) Act, Cap R11, LFN, 2004.

And again, there are plethora of judicial authorities that defined Conspiracy which is legally accepted and the Courts can rely on same, see the cases of IBOJI V. STATE (2016) LPELR-40009(SC), HASSAN V. STATE (2016) LPELR-42554(SC) and OMOTOLA & ORS V. STATE (2009) LPELR-2663(SC). Consequent upon the above and the more elaborate reasons advanced in the lead judgment. I also find that the instant appeal lacks merit and it is accordingly dismissed. The decision of the lower Court is thereby affirmed by me.

FOLASADE AYODEJI OJO, J.C.A.: I have had the privilege of reading in draft, the judgment just delivered by my learned brother, ABBA BELLO MOHAMMED, JCA.

One of the issues thrown up by this appeal is whether the offence of conspiracy is codified in line with the provisions of Section 36(12) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) which provides as follows: “Subject as otherwise provided by this Constitution, a person shall not be convicted of a criminal offence unless that offence is defined and the penalty thereof is prescribed in a written law; and in this subsection, a written law refers to an Act of the National Assembly or a Law of a State, any subsidiary legislation or instrument under the provisions of a law.” The foregoing provision is to the effect that a person shall not be convicted of an offence unless such offence is specifically or expressly provided for by a statute or legislation.

This accords with the provision of Section 36(6)(a) of the 1999 Constitution which provides that a person who is charged with a criminal offence shall be informed in detail of the nature of the offence. This much was pronounced upon by the Supreme Court in GEORGE VS. FEDERAL REPUBLIC OF NIGERIA (2014) 5 NWLR (PT. 1399)1 AT 22, PARAGRAPH A, where the Court per Fabiyi, JSC held as follows: “Any conduct that must be sanctioned must be expressly stated in a written law to wit: an Act by the National Assembly. That is what Section 36(12) of the 1999 Constitution provides.

Such conduct should not be left to conjecture. As well, it cannot be inferred by the Court.” Also, in ABIDOYE VS. FEDERAL REPUBLIC OF NIGERIA (2014) 5 NWLR (PT. 1399)30 AT 62, PARAGRAPHS A-B, Ngwuta, JSC held as follows: “In order to constitute an offence, criminality of its disobedience and punishment for same must be contained in the order disobeyed.” Furthermore, in TAFIDA VS.

FEDERAL REPUBLIC OF NIGERIA (2014) 5 NWLR (PT. 1399)129 AT 147, PARAGRAPHS G-H, the Supreme Court, per Aka’ahs, JSC held as follows: “The interpretation of a penal legislation or any statute for that matter should not be left to the whims and caprices of the Judge called upon to interpret the legislation. Any conduct which carries a sanction of imprisonment must be expressly stated in a written law and not left to conjecture or inference by the Court.” ​What this means is that an offence in respect of which sanction is provided must be expressly created by a statute.

The offence of conspiracy is expressly created by Section 6(b) of the Armed Robbery which provides that: “Any person who- (b) conspires with any person to commit such an offence whether or not he is present when the offence is committed or attempted to be committed, shall be deemed to be guilty of the offence as a principal offender and shall be proceeded against and punished accordingly under this Act.” I therefore completely agree with my learned brother when he held that all that is required to satisfy Section 36(12) of the Constitution is for the written law to stipulate the act or omission as an offence and prescribe a penalty for it.

The submissions made for the Appellant under issue No. 1 has no basis in law and it is hereby discountenanced. ​Premised on the foregoing and the fuller reasons contained in the lead judgment I also dismiss the appeal and affirm the decision of the trial Court.

Judgment

CHIOMA EGONDU NWOSU-IHEME, J.C.A. (Delivering the Leading Judgment): The appellant was arraigned and convicted of Criminal Force and Assault contrary to Section 267 of the Penal Code Law and sentenced to six months’ imprisonment with a fine of N 10,000 (Ten Thousand Naira), by a Senior Magistrate Court of the FCT, His Worship Hauwa Aliyu Shehu, on the 2nd of November, 2011. At the trial before the Senior Magistrate, the Prosecution called three witnesses and tendered two exhibits and closed its case, while the appellant called two witnesses in his defence.

At the close of the case, the learned trial Senior Magistrate found the appellant guilty as charged and sentenced him to six months in prison with a fine of N10,000.00. Aggrieved by that decision, the appellant appealed against that decision to the High Court of FCT Appellate Division. ​The appeal was heard and in a considered judgment delivered on the 28th of November, 2013, the FCT High Court affirmed the conviction of the appellant of the Offence of Criminal Force and Assault to deter a Public Servant from the performance of his duty contrary to Section 267 of the Penal Code Law.

The FCT High Court however reduced the sentence from six months’ imprisonment with N10,000.00 fine to a fine of N20,000.00 (Twenty Thousand Naira). Dissatisfied with the judgment of FCT High Court, Appellate Division, presided over by U.A. Ogakwu J., (as he then was and A.I. Kutigi, delivered on the 28th of November, 2013, the appellant has appealed to this Court on four grounds of appeal filed on the 21st of January, 2021. Learned counsel for the appellant Tsafa Barnabas Esq., distilled four issues for determination as follows: “1.

Whether the trial Magistrate’s holding that the matter was not heard in Chambers but only the FIR was mentioned in chamber was not unconstitutional. 2. Whether the learned Justices of the High Court were right when they held that the prosecution has proved its case beyond reasonable doubt. 3.

Whether the learned Justices of the High Court were right when they held that the extra-judicial statement of the appellant was not a confessional statement but refused to acquit and discharge the appellant when his conviction was based solely on the extra-judicial statement as it was held to be a confessional statement.

4. Whether the learned Justices were right in hiking the fine imposed by the trial Magistrate when there was no appeal on the fine.”

Learned counsel for the respondent Simon Lough, SAN, adopted the issues as distilled by learned for the appellant. In his brief of argument, learned counsel for the appellant submitted in summary that since the judgment of the trial Court was a nullity for failure to comply with the mandatory constitutional requirement with regards to the taking of plea of the appellant, this Court is urged to discharge and acquit the appellant. He argued that the prosecution failed to prove the offence under Section 267 of the Penal Code beyond reasonable doubt as required by law.

Counsel contended that the extra-judicial statement of the appellant which the trial Court declared to be a confessional statement and consequent upon which he was convicted but which the High Court declared not to be a confessional statement, stands to reason that the conviction of the appellant was not based on evidence. Reacting to the foregoing, learned counsel for the respondent contended that the issue of taking the FIR (First Information Report) in chambers was not unconstitutional and that this issue never arose at the FCT High Court.

That to raise the issue in this Court, the appellant ought to seek and obtain the Leave of this Court. He reproduced the provisions of Section 267 of the Penal Code upon which the appellant was charged and convicted and contended that the FCT High Court was well within the law to have held that the prosecution proved its case beyond reasonable doubt. Referring to pages 155 to 173 of the Record of Appeal, counsel posited that the FCT High Court did not in their judgment hold that the extra-judicial statement of the appellant was not a confessional statement.

That the FCT High Court stated that the said statement was not the sole basis for the conviction of the appellant at the trial Magistrate Court. In the determination of this appeal, issue no. 1 appears most crucial in the sense that it bothers on the provisions of Sections 360(1) and (3) of the 1999 Constitution of the Federal Republic of Nigeria (as amended).

The appellant in the course of his trial filed a Preliminary Objection challenging the jurisdiction of the trial Magistrate Court on the ground that the plea of the accused (now appellant) was taken in chambers rather than in an open Court as provided for under the said Constitution. The respondent has however, argued that what took place in chamber was only the First Information Report (FIR) and therefore, did not occasion any miscarriage of justice.

The said Section 36(1) and (3) of the 1999 Constitution provides: 36(1) “In the determination of his civil rights and obligations, including any question or determination by or against any government or authority, a person shall be entitled to fair hearing within a reasonable time established by law and constituted in such a manner as to secure its independence and impartiality”. 36(3) “The proceedings of a Court or the proceedings of any Tribunal relating to the matters mentioned in Subsection (1) of this Section including the announcement of the decision of the Court or Tribunal shall be held in public.” (Underlining mine for emphasis).

The question then is; is First Information Report (FIR) part of proceedings? The trial Magistrate had argued that the matter was not heard in Chambers but only the First Information Report was mentioned in Chambers and therefore, there was no miscarriage of justice. Counsel for the appellant disagreed with the above view but rather looked at it in a different perspective. In Nigeria – Arab Bank Ltd v. Barri Engineering Nig.

Ltd (1995) 8 NWLR (Pt. 413) Pg. 257, the Supreme Court held that delivery of the judgment in Chambers occasioned an irregularity which touched on the legality of the whole proceedings. The Court held as follows: “…It is my respectful view that sitting in Chambers to deliver judgment is not one of the facts before us, sitting in public or open Court is.

A judge’s Chambers is not one of the regular Courtrooms nor is it a public place to which the public have the right to ingress and egress as of right except on invitation by or with permission of the judge… There is in this case a clear breach of the mandatory provisions of Section 33(3) and (13) of the 1979 Constitution and Order 36 Rule 1 of the High Court Rules of Lagos State… The delivery of judgment is in my respectful view part of the hearing of a case or matter. A breach of a mandatory constitutional provision is more than a mere technicality. It is fundamental.

The breach vitiates the entire proceedings before him.” Peter-Odili, JSC, captured the controversy as to whether conducting part of the Court’s proceedings in Chambers renders the entire proceedings null and void in the case of Misiri Alimi v. Asani Kosebinu (2016) All FWLR (Pt. 859) at pg. 944. “…A part of the Court’s proceedings which ought to be public is and is conducted in the confines of the judge’s chambers is clearly one done in secrecy and detracts from the impartiality, independence, publicity and unqualified respect which enshrouds justice given openly without fear or favour.

Its acceptance by the public at large and the confidence it demands depends on these qualities which must be strictly adhered to… what occurred in the trial High Court was a clear aberration, an irregular so profound as to be incurable…” ​Even in civil matters which we do not view as serious as the criminal matters since civil matters do not attract jail term, the Supreme Court was still of the firm view that it must be conducted in open Court. The decision of the trial judge on his own to hear the matter in chambers occasioned a fundamental irregularity.

The Supreme Court stated as follows: “The hearing of this matrimonial case took place in judge’s chambers. Neither the counsel nor the parties requested for the hearing of the divorce proceedings in camera. A judge’s chambers is not a Court Hall to which the public will normally have any right to access. The petition and answers did not contain such matters, which by law, ought to be heard in camera in a Courtroom.” Again in Edibo v.

The State (2007) 13 NWLR (Pt. 1051) at 306, Tabai JSC, captured it succinctly, thus: “The arraignment and taking of plea of an accused person is the very commencement of a criminal trial. It is the stage when the accused person appears in Court, the charge explained to his understanding and pleads thereto in person and not even through his counsel. It is a very fundamental aspect of any criminal proceedings and that underscores the need for the strict and mandatory compliance in matters relating thereto.

Thus, any criminal trial no matter how well conducted, without the plea of the accused first and properly taken is a nullity. In the instant case, the proceedings of the 19th January, 1998 wherein the plea of the appellant and others were taken in the judge’s chambers was not only irregular, it was fundamentally defective and rendered the entire proceedings null and void.” The above case decided by the apex Court in 2007 is in all fours with the present appeal.

It is trite that the taking of the plea of an accused person not only kick-starts the criminal trial, it is the nucleus of the entire trial. It is one of the stages where the accused person must plead personally and not even through his counsel, therefore, compliance must be strictly, compulsorily and obligatorily adhered to. It does not give room for discretion or evasion. ​In the instant case, the trial Magistrate admitted taking the First Information Report (FIR) which is the plea of the accused person in chambers.

It is a constitutional requirement and Section 36(3) of the said 1999 Constitution gives no room for waiver. The act of conducting the (FIR) in chambers rather than in open Court, has resulted in fatal consequences. It is not a mere irregularity but quite fundamental which has rendered the taking of the plea (FIR) and indeed the entire proceedings a judicial waste of time, unconstitutional and a complete nullity. The whole trial and conviction of the appellant crumbled with this fundamental blunder.

As I pointed out earlier, issue one is the most crucial in the sense that a determination of that issue will establish the need or otherwise to go into the other issues. The apex Court in Edibo v. The State, cited earlier was of the view that in order to justify an order of retrial, an appellate Court must satisfy itself of the existence of a number of factors. Each case must however, be determined by its peculiar facts and circumstances. Those factors as enumerated by the apex Court are as follows: “a.

That there has been an error in law (including the observance of the law of evidence) or an irregularity in the procedure of such a character that the appellate Court is unable to say that there has been no miscarriage of justice. b. That besides the error or irregularity, the totality of evidence discloses a substantial case against the appellant. c. That there are no special circumstances that would render it oppressive to put the appellant on trial a second time.

d. That the offence or offences with which the appellant is convicted or the consequences to the appellant or any other person of the conviction or acquittal of the appellant are not merely trial; and

e. That to refuse an order for retrial would occasion a greater miscarriage of justice than to grant it.” Considering the circumstances of this case, particularly, the nature of the offence, the factors enumerated above are not applicable in this case. It is on record that the appellant is a legal practitioner, he was convicted and sentenced to six months imprisonment out of which he spent about one month before he was granted bail pending appeal.

Since the trial of the appellant has been adjudged to be unconstitutional, and a nullity, quite apart from the irregularity which clearly bothers on unconstitutionality, the evidence in my view did not disclose a substantial case against the appellant to justify a second trial. In the premise, there is merit in this appeal and it is hereby allowed. Issue no. one is resolved against the respondent and in favour of the appellant. A determination of this first issue has rendered a consideration of the other issues unnecessary and academic.

Consequently, the judgment, conviction and sentence of the lower Court i.e. FCT High Cout Appellate Division on the 28th of November, 2013, is hereby set aside. The appellant is accordingly discharged and acquitted.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in advance the judgment just delivered by my Lord, CHIOMA EGONDU NWOSU-IHEME, (PHD), JCA and I am in total agreement with the reasoning and conclusion arrived at in the leading judgment. Indeed, it is a constitutional requirement that trials must be held in the public, which is one of the attribute of fair hearing. In a criminal trial, arraignment is a very important and fundamental aspect. Once arraignment is defective, being a foundation, the trial must collapse. My Lord, MOHAMMED, J.C.A in AKIODE V.

FRN (2022) LPELR-58266 (CA) held thusly; “A criminal trial starts with the arraignment of an accused person before the trial Court. Arraignment is therefore the foundation of a criminal trial. The arraignment essentially consists of reading the charge or information to the accused person, or stating to him the substance of the charge or information and calling on him to plead thereto.” The fundamental nature of arraignment has a jurisdictional consequence, if improperly done, it will divest the Court of jurisdiction, see the case of IBRAHIM V.

STATE (2013) LPELR-21883 (SC) where the apex Court held as follows: “The arraignment of an accused person touches on the jurisdiction of the Court and any improper arraignment of the accused is a breach of a fundamental requirement in criminal proceedings which is capable of rendering the totality of the proceedings null and void See Section 36(6)(a) of 1999 Constitution, also S.242 CPC. It was held in State v.

Oladimeji (2003) FWLR (Pt175) 395 at 406 that: “Issue of arraignment is fundamental in a criminal trial because if not properly conducted it may vitiate the proceedings.” Per AKA’AHS, J.S.C I therefore adopt the fuller reasoning in the leading judgment and also allow the appeal, set aside the judgment of the appellate Court below.

PETER OYINKENIMIEMI AFFEN, J.C.A.: I have had the advantage of reading, in draft, the leading judgment of my Noble Lord, CHIOMA EGONDU NWOSU-IHEME (Ph.D), JCA which has just been delivered. The Constitution of the Federal Republic of Nigeria, 1999 (“CFRN”) provides in S. 36 (1) for the plenitude of the right to fair hearing in civil and criminal matters within a reasonable time by a Court or other Tribunal established by law and constituted in such manner as to secure its independence and impartiality.

Sub-sections (3) and (4) CFRN specifically provide that: “(3) The proceedings of a Court or the proceedings of any Tribunal relating to the matters mentioned in Subsection (1) of this Section (including the announcement of the decisions of the Court or Tribunal) shall be held in public. (4) Whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn, be entitled to a fair hearing in public within a reasonable time by a Court or Tribunal: Provided that – (a) a Court or such a Tribunal may exclude from its proceedings persons other than the parties thereto or their legal practitioners in the interest of defence, public safety, public order, public morality, the welfare of persons who have not attained the age of eighteen years, the protection of the private lives of the parties or to such extent as it may consider necessary by reason of special circumstances in which publicity would be contrary to the interests of justice. (b) if in any proceedings before a Court or such a Tribunal, a Minister of the Government of the Federation or a Commissioner of the Government of a State satisfies the Court or Tribunal that it would not be in the public interest for any matter to be publicly disclosed, the Court or Tribunal shall make arrangements for evidence relating to that matter to be heard in private and shall take such other action as may be necessary or expedient to prevent the disclosure of the matter.” The conduct of legal proceedings “in public” is therefore a constitutional imperative that can only be ignored to the detriment of the proceedings, whether civil or criminal.

“Public” means “for the use of everyone without discrimination; anything, gathering or audience which is not private is public”. Not a few cases have been nullified on the basis that Court proceedings conducted, or judgment delivered, in a Judge’s Chambers does not satisfy the requirement of “a fair hearing in public”, and breach of such a constitutional provision is fundamental and not a mere technicality. Notable cases include EDIBO v STATE [2007] 13 NWLR (PT. 1051) 306 which involved a scenario in which the plea of an accused person was taken in Chambers (as in the instant case).

MENAKAYA v MENAKAYA [2001] 16 NWLR (PT. 738) 203 and OVIASU v OVIASU (1973) 11 SC 315 where matrimonial proceedings for dissolution of marriage were heard in Chambers contrary to the dictates of S. 103 (1) and (2) of the Matrimonial Causes Act of 1970 which provide for hearing “in open Court”; as well as NIGERIA – ARAB BANK LTD v BARRI ENGINEERING NIG. LTD [1995] 8 NWLR (PT 413) 247 and ALIMI & ORS v KOSEBINU & ORS (2016) ALL FWLR (PT. 859) 944, (2016) LPELR-42557(SC) where hearing was conducted in open Court but judgment was delivered in Chambers.

The rationale, as Ogbuagu JSC put it in EDIBO v STATE supra at 335, is that: “Surely and certainly, a Judge’s Chambers is not and cannot be equated to a hall in a public building that is used for formal meetings. As a matter of fact, a Chambers can also be defined as or equated with a private bedroom or private room. Even in Black’s Law Dictionary, 7th Edition at page 224, a Judge’s Chambers as defined as the private room or office of a Judge.” See also NIGERIA – ARAB BANK v BARRI ENGINEERING NIG.

LTD supra at 273 – 274 where Ogundare JSC held that the Chambers of a Judge “is not one of the regular Courtrooms nor is it a place in which the public have right to ingress and egress as of right except on invitation by or with permission of the Judge.” There is no gainsaying in the case at hand that the arraignment of the Appellant and/or taking of his plea in the Chambers of the Learned Senior Magistrate on 2/11/11 constitutes an egregious violation of constitutional provisions that enjoin the conduct of legal proceedings in public.

A criminal trial commences upon arraignment and ends with a sentence. Where the commencement (which is to the foundation) of the trial is fundamentally flawed, the subsequent proceedings and eventual sentence founded upon it can scarcely be sustained. I accordingly join forces with my learned brother in setting aside the judgment of the Appellate Division of the High Court of the Federal Capital Territory delivered on 28/11/13 (embodying the affirmation of the Appellant’s conviction and sentence), and record a verdict of discharge and acquittal in its stead.

Judgment

OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the Leading Judgment): This appeal interrogates the correctness of the decision of the High Court of Lagos State, Ikeja Division (hereinafter addressed as “the lower Court”), coram judice: S.S. Ogunsanya, J., in Charge No. ID/123C/2011, delivered on 16th February, 2016. Before the lower Court, the appellant and the respondent were the accused/defendant and the complainant respectively. ​The facts of the case, which transformed into the appeal, are amenable to brevity and simplicity.

In the wee hours of 17th November, 2008, at No. 2 Oremeji Street, Oshodi, Lagos, the deceased, Justina Ulumma Mebele, the wife of the appellant, asked him to provide money for the feeding of their baby boy, Samuel. The appellant brought N40.00 which the deceased rejected for being insufficient. The disagreement led to the appellant beating the deceased in their locked-up one room apartment. She raised alarm. Neighours knocked on the door but the appellant refused to open it. The deceased sustained injuries from the beating. The appellant later left the premises.

Shortly after, the deceased started vomiting blood. Their neigbours or co-tenants took her to the General Hospital, Ikeja where she died on that day. The brother of the deceased reported the incident to Akinpelu Police Station. The appellant was arrested by the police. After due investigation, the appellant was arraigned before the lower Court on a one-count information of manslaughter contrary to Section 317 of the Criminal Code Law, Cap. C17, Vol. 2, Laws of Lagos State, 2003.

The appellant pleaded not guilty to the information. ​Following the plea of not guilty, the lower Court had a full-blown determination of the case. In proof of the case, the respondent fielded four witnesses: PW1-PW4. In disproof of the case, the appellant testified for himself and called no other witness. Tons of documentary evidence were tendered before the lower Court. At the closure of the evidence, the parties, through their counsel, addressed the lower Court in the manner required by law.

In a considered judgment, delivered on 16th February, 2016, found at pages 138 – 155 of the additional record, the lower Court found the appellant guilty of the offence, manslaughter, convicted him and sentenced him to 21 years imprisonment from 17th November, 2008. The appellant was dissatisfied with the decision. Hence, on 27th February, 2017, he lodged his original notice of appeal.

Subsequently, with leave of this Court, the appellant filed a 6-ground amended notice of appeal on 21st December, 2021 but deemed properly filed on 30th November, 2021, wherein he prayed this Court as follows: To set aside the judgment in Charge No. ID/123C/2011 delivered by Honourable Justice S.S. Ogunsanya of the High Court of Lagos State sitting at Ikeja on the 16th day of February, 2016. To discharge and acquit the Appellant. And other order(s) as the Court of Appeal may make as the justice of this case demands.

Thereafter, the parties, through their counsel, filed and exchanged their respective briefs of argument in line with the procedure regulating the hearing of criminal appeals in this Court. The appeal was heard on 17th January, 2022. During its hearing, learned counsel for the appellant, Pamela Okoroigwe, Esq., adopted the appellant’s brief of argument filed on 21st December, 2020 but deemed properly filed on 30th November, 2021, and the appellant’s reply brief of argument, filed on 17th January, 2022 but deemed properly filed on the same day, as representing his arguments for the appeal.

He urged the Court to allow it. Similarly, learned respondent’s counsel, Oluwaseyilayo Ojo, Esq., adopted the respondent’s brief of argument filed on 8th November, 2021, as forming his reactions against the appeal. He urged the Court to dismiss it. In the appellant’s brief of argument, learned counsel distilled three issues for determination to wit: 1.

Whether the trial Court was right in view of the provisions of Section 36 of the 1999 Constitution and the rules of natural justice, when it refused or neglected to record the oral testimony of the Appellant during trial before reaching a decision to convict the Appellant? 2. Whether Exhibits P1, P2 and P3-7, and oral testimony of PW1, PW2, PW3 and PW4 were admissible in evidence or of any weight as to form the basis for the conviction of the Appellant? 3. Whether in the light of evidence adduced at the trial the prosecution proved its case beyond reasonable doubt?

In the respondent’s brief of argument, learned counsel crafted three issues for determination, namely: (i) Whether the trial of the Appellant was conducted in a manner that accorded him his right to fair hearing under Section 36(4) of the Constitution of Federal Republic of Nigeria, 1999. (ii) Whether, having regard to the evidence before the lower Court, the charge against the Appellant was proved beyond reasonable doubt. (iii) Whether the learned trial judge was right in her evaluation and ascription of probative value and weight to the testimonies and evidence tendered by PW1, PW2, PW3 and PW4.

A close look at the two sets of issues shows that they are identical in substance, but for semantics. In fact, the respondent’s issues can be conveniently subsumed under appellant’s. In view of this sameness, I will decide the appeal on the issues nominated by the appellant: the undoubted owner of the appeal. Arguments on the issues. Issue one. Learned appellant’s counsel submitted that the lower Court failed to record in writing, or consider the evidence of the appellant before convicting him. He described it as a breach of the appellant’s right to fair hearing.

He relied on Section 36(4) of the Constitution, as amended; Audu v. FRN (2013) LPELR – 19897 (SC); Idoko v. State (2018) 6 NWLR (Pt. 1614) 117; Ngadi v. FRN (2018) LPELR – 43636 (CA); Mohammed v. State (2015) 13 NWLR (Pt. 1476) 276. He insisted that the failure occasioned a miscarriage of justice to the appellant. He explained that the lower Court merely recorded that the “Defendant is not coherent in his testimony”. He asserted that the Court is bound by the record. He cited Oduneye v. FRN (2014) 13 NWLR (Pt. 1425) 545; Mohammed v. State (supra).

He maintained that the denial of the fair hearing rendered the lower Court’s decision a nullity. He referred to Audu v. FRN (supra). He urged the Court to hold that the appellant’s trial and conviction were a nullity. On behalf of the respondent, learned counsel highlighted the principle governing a person’s right to fair hearing as noted in Nwabueze v. The People of Lagos State (2018) 11 NWLR (Pt. 1630) 201. He contended that the evidence of the appellant was recorded at pages 108 and 109 of the main record.

He added that the appellant’s evidence in the transcribed recording is contained at pages 156 – 165 of the additional record. He opined that the lower Court reviewed the appellant’s evidence in the judgment. He stated the meaning of fair hearing as noted in Nwokocha v. A. – G., Imo State (2016) 8 NWLR (Pt. 1513) 141. He persisted that the appellant was given fair hearing and the defence of lack of fair hearing would not avail him. He cited Adebayo v. A. – G., Ogun State (2008) 7 NWLR (Pt. 1085) 201. Issue two. Learned appellant’s counsel submitted that none of the witnesses was an eye witness.

He described the evidence of PW1 and PW3 as hearsay that is inadmissible in law. He relied on Sections 38, 39, 125, 126 of the Evidence Act; Odogwu v. State (2013) 14 NWLR (Pt. 1373) 74; State v. Masiga (2018) 8 NWLR (Pt. 1622) 383; Maren v. State (2010) 3 NWLR (Pt. 1181) 254. He posited that the evidence of PW2 and PW4 were based on suspicion and inadmissible. He cited Osho v. State (2012) 8 NWLR (Pt. 1302) 243. He urged the Court to discountenance the evidence of PW1 – PW4. For the respondent, learned counsel argued that the evidence of PW1 and PW3, police officers, were not hearsay.

He relied on Kamila v. State (2018) 8 NWLR (Pt. 1621) 252; Ayodeji v. FRN (2018) LPELR – 45839 (CA); Anyasodor v. State (2018) 8 NWLR (Pt. 1620) 107. He reasoned that the PW2 and PW4 gave direct evidence of what they saw, heard and perceived. He maintained that their evidence were admissible. He observed that the contention that the exhibits were hearsay was abandoned because no argument was advanced on it. He cited Ajibade v. Pedro (1992) LPELR – 297 (SC); Abdullahi v. Nigerian Army (2009) LPELR – 8857 (CA); Fenton Keynes Finance Ltd. v. Transplay Nig. Ltd. (2010) LPELR – 4156 (CA); Shonubi v.

Onafeko (2003) 12 NWLR (Pt. 834) 254; Jawando v. Bakare (2012) LPELR – 9758 (CA). He asserted, in the alternative, that the issue of the exhibits being hearsay did not arise from the grounds of appeal and should be disregarded. He referred to Suleiman v. Abubakar Tafawa Balewa University (2019) LPELR – 47708 (CA); Opedule v. Sule (2016) LPELR – 41276 (CA). ​On points of law, learned appellant’s counsel postulated that the admissible evidence of a police witness is evidence of what he saw, observed and did in the course of investigation. He cited Ugwumba v.

State (1993) 5 NWLR (Pt. 296) 660/6 SCNJ (Pt. II) 217; Ekpo v. State (2001) 7 NWLR (Pt. 712) 292. Issue three. Learned appellant’s counsel submitted that the respondent’s evidence on record did not prove the offence beyond reasonable doubt as required by law. He relied on Section 135(1) of the Evidence Act, 2011; Section 36(5) of the Constitution, as amended; Ani v. State (2009) 16 NWLR (Pt. 1168) 443. He enumerated the ingredients of the offence of manslaughter. He cited Maren v. State (supra). He conceded that the deceased died.

He reasoned that there was no causal link between the death of the deceased and the act of the appellant. He referred to John v. State (2017) 16 NWLR (Pt. 1591) 304; Kazeem v. Nigerian Army (2019) 15 NWLR (Pt. 1694) 65; Adeleye v. State (2015) 3 NWLR (Pt. 1446) 229; Oforlete v. State (2000) 12 NWLR (Pt. 681) 415. He insisted that there was no proof of such causal link beyond reasonable doubt particularly because of exhibit D1 – the autopsy report. He described the pathologist, who was not called, as a vital witness and fatal to the respondent’s case.

He cited Ochiba v. State (2011) 17 NWLR (Pt. 1277) 663. He took the view that the respondent failed to discharge the burden of proof and the appellant is entitled to an acquittal. He referred to Sowemimo v. State (2004) 11 NWLR (Pt. 885) 515. He noted that exhibits P1 and P2 did not show the appellant’s intention to cause the death of the deceased especially as no weapon was used to infer intention from its nature. He relied on Owhoruke v. C.O.P. (2015) 15 NWLR (Pt. 1483) 557.

He reiterated that it is the duty of the respondent to prove the essential elements of the offence charged or the accused will be discharged. He referred to Kazeem v. Nigerian Army (supra). On the part of the respondent, learned counsel listed the ingredients of the offence of manslaughter. He relied on Adesina v. People of Lagos State (2019) 8 NWLR (Pt. 125 (sic)) 141. He noted that proof beyond reasonable doubt is not beyond a shadow of doubt. He cited Eyo v. State (2016) 7 NWLR (Pt. 1510) 183. He enumerated the three ways to prove crime. He referred to Onitilo v.

State (2017) LPELR – 42576 (SC); Okashetu v. State (2016) 15 NWLR (Pt. 1534) 126. He stated that evidence against the appellant was circumstantial evidence. He explained the nature of circumstantial evidence. He cited Esseyin v. State (2018) 14 NWLR (Pt. 1640) 491. He maintained that the circumstantial evidence, especially exhibit P2, was against the appellant. He postulated that medical evidence would be dispensed with where the cause of death is immediate and a proximate action of the accused. He relied on Ahmed v. State (2001) LPELR – 262 (SC).

He stated that the appellant’s defence that the deceased was sick was inapplicable as an accused must take his victim as he finds him. He cited Uyo v. A. – G., Bendel State (1986) LPELR – 3452 (SC). He urged the Court to so hold. On points of law, learned appellant’s counsel posited that the respondent did not call any evidence to show that the deceased had no underling illness. He noted that the respondent must call all material witness. He cited Nwaeze v. State (1996) NWLR (Pt. 428) 1. He stated that the circumstantial evidence did not point to the appellant. He referred to Adisa v.

State (1991) 1 NWLR (Pt. 168) 490. Resolution of the issues. In the spirit of orderliness, I will attend to the issues in their numerical sequence of presentation by the parties. To this end, I will, without much ado, kick off with the treatment of issue one. The marrow of the issue is canalised within a narrow compass. It chastises and accuses the lower Court of the failure to record the testimony of the appellant, during the trial, before convicting him. In a nutshell, it orbits around fair hearing.

The main plank of the appellant’s quarrel, indeed the thrust of the terminal issue, is that the lower Court’s decision, delivered on 16th February, 2016, was an erosion of his inviolable right to fair hearing as guaranteed by Section 36(4) – (6) of the Constitution, as amended. Fair hearing connotes a trial which is conducted in accordance with all the legal rules formulated to ensure that justice is done/dished out to parties to the cause, see Eze v. FRN (2017) 15 NWLR (Pt. 1589) 433; Ardo v. INEC (2017) 13 NWLR (Pt. 1583 450; Regt. Trustees, P.C.N. v.

Etim (2017) 13 NWLR (Pt. 1581) 1; Akingbola v. FRN (2018) 14 NWLR (Pt. 1640) 395; La Wari Furniture & Baths Ltd. v. FRN (2019) 9 NWLR (Pt. 1677) 262. Due to its olympian status in the appeal, it is germane to display some of the notable features of fair hearing, a mantra which, nowadays, competes with jurisdiction for prominence in adjudications. The ancient concept of fair hearing traces its pedigree to divinity. It was a common law doctrine which has metamorphosed into the corpus of our jurisprudence and firmly entrenched in Section 36(1) of the Constitution, as amended.

It donates to the citizens the inviolable right to ventilate their grievances on the altar of the two concrete pillars of natural justice to wit: audi alteram partem – hear the other side and nemo judex in causa sua – no one should be a judge in his own case. The whole essence of fair hearing, which is coterminous with fair trial, connotes giving parties to any proceedings, be it judicial or administrative body, an equal opportunity to present their cases. It follows that fair hearing is not synonymous with correctness of a decision.

It centres on the cardinal principle that a fair-minded person who watched the proceedings, before a Court or administrative or quasi judicial body, should conclude that it exhibited even handedness/fairness in apportioning justice to the feuding parties. Where a person’s right to fair hearing is curtailed, no matter the quantum of dexterity, artistry, transparency or objectivity invested in such a proceeding, it will be caught in the web of nullity. For these attributes of fair hearing, see Kim v. State (1992) 4 NWLR (Pt. 233) 17; Effiom v. State (1995) 1 NWLR (Pt. 373) 507; Ogugu v.

State (1994) 9 NWLR (Pt. 366) 1; Uguru v. State (2002) 9 NWLR (Pt. 771) 90; FRN v. Akubueze (2010) 17 NWLR (Pt. 1223) 830; Ogunsanya v. State (2011) 12 NWLR (Pt. 1261) 401; Agbiti v. Nigerian Navy (2011) 4 NWLR (Pt. 1236) 175; Nigeria Navy v. Labinjo (2012) 17 NWLR (Pt. 1328) 56; Audu v. FRN (2013) 5 NWLR (Pt. 1348) 397; Adisa v. State (2015) 4 NWLR (Pt. 1450) 475; FRN v. Michael (2018) 6 NWLR (Pt. 1616) 438; Eze v. State (2018) 16 NWLR (Pt. 1644) 1; Azuogu v. State (2018) 16 NWLR (Pt. 1644) 46; Edwin v. State (2019) 7 NWLR (Pt. 1672) 553; FRN v. Ogunrombi (2019) 8 NWLR (Pt. 1675) 538; Adamu v.

FRN (2020) 2 NWLR (Pt. 1707) 129. The apex Court, in Baba v.

Civil Aviation (1991) 5 NWLR (Pt. 192) 388 at 423, per Nnaemeka-Agu, JSC, evolved the parameters to guide the Court to ensure fair hearing to include the right of the person to be affected: (i) to be present all through the proceedings and hear all the evidence against him; (ii) to cross-examine or otherwise confront or contradict all the witnesses that testify against him; (iii) to have read before him all the documents tendered in evidence at the hearing; (iv) to have disclosed to him the nature of all relevant material evidence, including documentary and real evidence, prejudicial to the party, save in recognised exceptions; (v) to know the case he has to meet at the hearing and have adequate opportunity to prepare for his defence; and (vi) to give evidence by himself, call witnesses if he likes, and make oral submissions either personally or through a counsel of his choice.

See also, JSC, Cross River State v. Young (2013) 11 NWLR (Pt. 1364) 1; Eze v. FRN (supra); Olayioye v. Oyelaran I (2019) 4 NWLR (Pt. 1662) 351; La Wari Furniture & Baths Ltd. v. FRN (supra); S & D Const. Co. Ltd. v. Ayoku (supra). I will be guided by these catalogued elements of fair hearing as the barometer to gauge the appellant’s agitation of infraction of his right to fair hearing. Now, the main anchor of the appellant’s nursed grievance is weaved on the lower Court’s failure to record the testimony of the appellant in its record of proceeding.

It is settled elementary law, beyond any peradventure of doubt, that the Court and the parties are bound by the record. Neither of them can factor into a record what is not there nor subtract from its content. An appellate Court must read the record in its exact content, see Udo v. State (2006) 15 NWLR (Pt. 1001) 179; Bassey v. State (2012) 12 NWLR (Pt. 1314) 209; Osung v. State (2012) 18 NWLR (Pt. 1332) 256; Mohammed v. State (2015) 13 NWLR (Pt. 1476) 276; Offor v. State (2012) 18 NWLR (Pt. 1333) 421; State v.

John (2013) 12 NWLR (Pt. 1368) 337. ​In total fidelity to the dictate of the law, I have consulted the record, the spinal cord of every appeal. My port of call is at the residence of the defence which is warehoused in the main and additional records. I have perused the records, which are comprehension-friendly, with the finery of toothcomb. The skeleton of the appellant’s evidence, examination-in-chief and cross-examination, held on 2nd July, 2015, colonises pages 108 and 109 of the main record. The terse evidence incorporated the Court recording by reference.

The transcribed version of the appellant’s evidence monopolise pages 156 – 165 of the additional record. The proceeding houses the appellant’s evidence during his examination-in-chief and cross-examination. It recorded the appellant’s evidence verbatim ac litterattim. Thus, there are ample demonstrations and concrete evidence that the appellant’s testimony was duly and comprehensively recorded by the lower Court. The gains of this method, transcription of Court proceeding, cannot be overemphasised. It usually captures all aspects of the proceeding of the Court ipsissima verba.

It relieves the Judex from the stress of long- hand recording. It affords the Judge the opportunity to pay rapt attention to the witness and lawyers. It promotes the adjudicator’s level of appreciation and concentration on the case. Overall, it facilitates/fast tracks the dispensation of justice. ​Indisputably, the provision of Section 36(6) (d) of the Constitution, as amended, the fons et origo of our laws, donates to an accused party (appellant herein) the right to defend himself in person. The case-law has sanctioned the legitimacy of that right, see Shema v.

FRN (2018) 9 NWLR (Pt. 1624) 337 Eze v. State (supra); Azuogu v. State (supra); Rabe v. FRN (2019) 4 NWLR (Pt. 1662) 312; Edwin v. State (supra); FRN v. Ogunrombi (supra); Ali v. State (2019) 10 NWLR (Pt. 1680) 289; Adamu v. State (supra). Indubitably, the recorded evidence of the appellant catalogued above, clearly showcases that the appellant’s testimony was properly recorded by the lower Court as disclosed on the record – the bedrock of the appeal.

It flows that the appellant was duly accorded equal treatment, opportunity and consideration with its opponent, the respondent, vis-à-vis the delivery of testimony. It must be underscored, apace, that the bounden duty of the Court, whether trial or appellate, is to provide the enabling and hospitable milieu as well as grant the contending parties equal chances to present their cases in the temple of justice. To my mind, the lower Court, in an unbiased manner, created the egalitarian and congenial atmosphere for the appellant to deliver his testimony.

It appears that the appellant erected his grouse on the phrase “Defendant not coherent in this testimony” which is located at page 108 of the main record. It was recorded at the cradle of the skeleton of the appellant’s testimony. It has no place in the transcript of proceedings – the expansive evidence of the appellant. It is therefore devoid of any relevance. It is impotent to ruin the succinct transcribed version of evidence of the appellant.

The phrase cannot, under any guise or stretch of elastic imagination, tantamount to an infringement of his inalienable right to fair hearing as enshrined in Section 36(6) of the Constitution, as amended. In effect, the appellant’s inviolate right to fair hearing, as it relates to presentation of his evidence, was not, in the least, trampled upon by the lower Court. It is therefore not available for him to harvest from the vineyard of the beneficent provision of Section 36(4-6) of the Constitution, as amended. In Adebayo v.

A. –G., Ogun State (2008) 7 NWLR (Pt. 1085) 201 at 221 and 222 the apex Court, per Tobi, JSC, admonished:

…The fair hearing provision in the Constitution is the machinery or locomotive of justice; not a spare part to propel or invigorate the case of the user. It is not a casual principle of law available to a party to be picked up at will in a case and force the Court to apply it to his advantage. On the contrary, it is a formidable and fundamental constitutional provision available to a party who is really denied fair hearing because he was not heard or that he was not properly heard in the case.

The magisterial pronouncement, in the ex cathedra authority, with due respect, drowns the appellant’s complaint on the issue. The lower Court’s transcribed recording of the appellant’s testimony was not guilty of the allegation of violation of his right to fair hearing levelled against it. It is a pseudo-charge that is uncharitable and unsustainable. In essence, all the strictures, which the appellant’s learned counsel heaped on it, are, with due respect, idle and peter into insignificance.

It will smell of judicial sacrilege to reprobate a judicial exercise that did not disclose any hostility to the law on fair hearing. In the result, I have no option than to resolve the issue one against the appellant and in favour of the respondent. Having dispensed with issue one, I proceed to settle issues two and three. A clinical audit of the two issues, two and three, amply, reveals that they are intertwined and share a common mission: to puncture the lower Court’s findings after the evaluation of evidence before it.

Given this interwoven judicial relationship, I will, in order to conserve the scarce judicial time and for spatial constraint, amalgamate them and fuse their considerations without each issue compromising its identity.

Since the communal target of all the issues is a summon on this Court to re-evaluate the evidence, it is imperative to display the essential features of evaluation of evidence as combed out from judicial authorities. ​Remarkably, evaluation of evidence connotes the appraisal/assessment of evidence, both viva voce and documentary before a Court, and ascription of probative value to them which results in finding of facts. This primary evidentiary duty falls squarely within the exclusive preserve of a trial Court.

It enjoys this prerogative in that it has the singular advantage, which cannot be recaptured by an appellate Court, to watch the witnesses, form impression on their demeanour and evaluate the credibility or otherwise of their evidence, see Okpa v. State (2017) 15 NWLR (Pt. 1587) 1; Kekong v. State (2017) 18 NWLR (Pt. 1596) 108; Ezeani v. FRN (2019) 12 NWLR (Pt. 1686) 221. An appellate Court is disrobed of the vires to interfere with a finding of a trial Court anchored on demeanour and credibility of witnesses, see Adegbite v. State (2018) 5 NWLR (Pt. 1612) 183, Adebanjo v.

State (2019) 12 NWLR (Pt. 1688) 121; Tope v. State (2019) 15 NWLR (Pt. 1695) 289. Where a trial Court has justifiably performed this primary duty, an appellate Court does not form the habit of imposing and/or substituting its views for its own save in exceptional circumstances: where the findings are against the drift of evidence, perverse and smell of miscarriage of justice, see Idoko v. State (2018) 6 NWLR (Pt. 1614) 117; Ikpa v. State (2018) 4 NWLR (Pt. 1609) 175; Enukora v. FRN (2018) 6 NWLR (Pt. 1615) 355; Sunday v. State (2018) 1 NWLR (Pt. 1600) 251; Ewugba v.

State (2018) 7 NWLR (Pt. 1618) 262; Kamila v. State (2018) 8 NWLR (Pt. 1621) 252; Abbas v. The People of Lagos State (2019) 16 NWLR (Pt. 1698) 213. Interestingly, the law, in order to repel injustice, donates concurrent jurisdiction to this Court and the lower Court on the evaluation of documentary evidence, see Ezeuko v. State (2016) 6 NWLR (Pt. 1509) 529; FRN v. Sanni (2014) 16 NWLR (Pt. 1433) 299; Atoyebi v. FRN (2018) 5 NWLR (Pt. 1612) 350. I will reap from this co-extensive jurisdiction in the appraisal of the galaxy of documentary evidence in this appeal.

Again, I will bear in mind these evidential indices as the yardstick to measure the propriety or otherwise of the lower Court’s evaluation of the evidence in the case. Now, the appellant’s chief grudge, indeed his trump-card on the conjoined issues, centres on the admissibility or otherwise of the evidence of PW1 – PW2. The appellant chastises the lower Court’s reliance on them, in convicting him, when they were inadmissible hearsay. ​It is apropos to display and appreciate the purport and hallmarks of hearsay evidence.

In our adjectival law, a witness is expected to testify on oath, or affirmation, on what he knows personally. Where a witness gives evidence on what another person told him about events, then it is not direct evidence which has acquired the nickname: hearsay or second hand evidence. In the view of the law, hearsay evidence can only be used to inform a Court about what a witness heard another say and not establish the truth of an event.

The purpose of hearsay rule is to shield an accused from being convicted on a testimony of a witness who did not see, hear or perceive, in any other manner, the facts given in evidence, see Sections 37, 38 and 126 of the Evidence Act, 2011; Kasa v. State (1994) 5 NWLR (Pt. 344) 269; FRN v. Usman (2012) 8 NWLR (Pt. 1301) 141; Theophilus v. State (1996) 1 NWLR (Pt. 423) 139; Opara v. A. –G. Fed. (2017) 9 NWLR (Pt. 1569) 61; State v. Masiga (2018) 8 NWLR (Pt. 1622) 383;Simeon v. State (2018) 13 NWLR (Pt. 1635) 128; Saraki v. FRN (2018) 16 NWLR (Pt. 1646) 405; Idi v.

State (2019) 15 NWLR (Pt. 1696) 448; Utteh v. State (1992) 2 NWLR (Pt. 223) 257; Kasa v. State (1994) 5 NWLR (Pt. 344) 269; Arogundade v. State (2009) 6 NWLR (Pt. 1136) 165; Simeon v. State (2018) 13 NWLR (Pt. 1635) 128. In a spirited bid to castrate the lower Court’s decision, the appellant stigmatised the evidence of PW1 and PW3 as inadmissible hearsay.

It is decipherable from the record, the fulcrum of the appeal, that the PW1, Inspector Chinyere Amasor, and PW3, Inspector Ndubuisi Okorocha, were the Investigating Police Officers (IPOs) who investigated the case, which mothered the appeal, prior to the arraignment of the appellant before the lower Court. Does the law categorise their evidence as inadmissible hearsay? In Anyasodor v.

State (2018) 8 NWLR (Pt. 1620) 107 at 125 Sanusi, JSC, incisively, declared: On the appellant’s counsel’s submission that the testimony of PW3 was hearsay, I am also at one with the lower Court’s conclusion that such testimony as given by the PW3 was not and cannot be described as hearsay evidence. To my mind, all that the PW3 (IPO) did was to give evidence on what he actually saw or had witnessed, or discovered in the course of his work as an investigator.

His testimony on what the appellant told him was positive and direct which was narrated to him by the appellant and other witnesses he came into contract (sic) within the course of his investigation of the case. Evidence of an IPO is never to be tagged as hearsay. This Court in a plethora of its decided authorities had adjudged such evidence as direct and positive evidence and therefore not hearsay evidence. See Arogundade v. The State (2009) All FWLR (Pt. 469) (SC) 423; (2009) 6 NWLR (Pt. 1136) 165. See also Olaoye v. State (2018) 8 NWLR (Pt. 1621) 281; Kamila v.

State (2018) 8 NWLR (Pt. 1621) 252. It stems from this magisterial pronouncement that the law has totally severed the evidence of an Investigating Police Officer (IPO) of a case from hearsay and coronated it with the toga of admissible evidence. These ex cathedra authorities, with due respect, wholly deflates the appellant’s counsel’s elegant contention on the point. The contention is disabled in their presence. I therefore refuse the appellant’s request to ostracise and expunge the evidence of PW1 and PW3 on the ground of phantom hearsay.

Contrariwise, I welcome their testimonies as usable evidence in the appeal. By the same token, the evidence of PW2 and PW4 cannot be branded as inadmissible hearsay. The reason is not far-fetched. PW2, Segun Shotunde, was the appellant’s landlord who heard the voices of the appellant and deceased in the heat of their quarrel. He knocked on the door but the appellant refused to open it for him. Ditto for the PW4, Mr. Samuel Adenowo. Even though PW4 was physical challenged, as regards his sight, his evidence was pegged on what he perceived through his other senses.

In essence, their parol testimonies were totally divorced from the four walls of hearsay evidence. At once, their testimonies have no romance with suspicion as pontificated by the appellant. They were classic exemplification of direct evidence which the law, ex debito justitiae, accommodates unreservedly. This legal anatomy on hearsay evidence, done in due allegiance to the law, reveals that the lower Court’s reliance and utilisation of the evidence of PW1 – PW4 was in total alignment with letter and spirit of the procedural law.

The lower Court’s conduct was unimpeachable as to magnet the reprobation of this Court. I accord it a wholesale affirmation. ​Another coup de main, which the appellant nursed against the decision, appertains to the lower Court’s finding on proof of the offence (manslaughter) against the appellant. It was contended forcefully that the respondent did not establish beyond reasonable doubt the offence of manslaughter, laid against the appellant, and that the lower Court erred when it found him guilty of it.

By way of prefatory observations, manslaughter is an unintentional (not premeditated) killing of a human being, see Ejeka v. State (2003) 7 NWLR (Pt. 819) 408; Egbirika v. State (2014) 4 NWLR (Pt. 1398) 558; Famakinwa v. State (2016) 11 NWLR (Pt. 1524) 538; Popoola v. State (2018) 10 NWLR (Pt. 1628) 485. Any person who unlawfully kills another in such circumstances as not to constitute murder is guilty of manslaughter, see Section 317 of the Criminal Code Law, Laws of Lagos State, 2003; Udo v. Queen (1964) 1 All NLR 21; Omini v. State (1999) 12 NWLR (Pt. 630) 168; Apugo v.

State (2006) 16 NWLR (Pt. 1002) 227; Chukwu v. State (2013) 4 NWLR (Pt. 1343) 1; Oketaolegun v. State (2015) 13 NWLR (Pt. 1477) 538; Famakinwa v. State (supra); John v. State (2017) 16 NWLR (Pt. 1591) 304; Simeon v. State (2018) 13 NWLR (Pt. 1635) 128; Adesina v. The People of Lagos State (2019) 8 NWLR (Pt. 1673) 125.

The law classifies manslaughter into two classes, videlicet: voluntary or involuntary manslaughter. Voluntary manslaughter occurs when a person intentionally kills another but the offence is reduced from murder to manslaughter because of provocation. Involuntary manslaughter occurs where a person causes the death of another under such circumstances that he did not intend to kill and did not foresee death as a probable consequence of his conduct but there is some blameworthiness, such as gross negligence, in this conduct, see C.O.

Okonkwo and Naish, Criminal Law in Nigeria, second edition (Ibadan: Spectrum Law Publishing Ltd., 1990) pages 240 and 253; Famakinwa v. State (supra); Adegboye v. State (supra). For the prosecution to succeed and secure conviction for the offence of manslaughter, it must prove: (a) that the act of the accused was unauthorized or unjustified or not excused; (b) that death resulted from the direct or indirect act of the accused by the unlawful act of the accused person; and (c) that the death of the deceased was linked to the act of the accused person, see Oforlete v.

State (2000) 12 NWLR (Pt. 681) 415; Amayo v. State (2001) 18 NWLR (Pt. 745) 251; Sowemimo v. State (2004) 11 NWLR (Pt. 885) 515; Apugo v. State (2006) 16 NWLR (Pt. 1002) 227; Egbirika v. State (2014) 4 NWLR (Pt. 1398) 558, Nwabueze v. The People of Lagos State (2018) 11 NWLR (Pt. 1630) 201; Adesina v. The People of Lagos State (2019) 8 NWLR (Pt. 1673) 125.

In an abiding loyalty to the dictate of the law, I made another excursion into the record, the touchstone of the appeal, especially at the abode of the judgment of the lower Court, in the heat of expunction, which spans pages 138 – 155 of the additional record. I have given an intimate reading to it. Interestingly, it is rebellious to woolliness. A panoramic view of the judgment, clearly, discloses that the lower Court employed circumstantial evidence in finding the appellant guilty of the offence. The appellant has castigated the lower Court’s reliance on that specie of evidence.

It admits of no argument that the law gives the prosecution three avenues/means to prove ingredients of an offence. They are through: a confessional statement, circumstantial evidence or evidence of eye witness, see Igri v. State (2012) 16 NWLR (Pt. 1327) 522; Oguno v. State (2013) 15 (Pt. 1376) 1; Ibrahim v. State (2014) 3 NWLR (Pt. 1394) 305; Ogedengbe v. State (2014) 12 NWLR (Pt. 1421) 338; Umar v. State (2014) 13 NWLR (Pt. 1425) 497; Itu v. State (2016) 5 NWLR (Pt. 1505) 443; Ude v. State (2016) 14 NWLR (Pt. 1531) 122; Okashetu v. State (2016) 15 NWLR (Pt. 1534) 126; Igbikis v.

State (2017) 11 NWLR Pt. 1575) 126; State v. Ibrahim (2019) 8 NWLR (Pt. 1674) 294; Itodo v. State (2020) 1 NWLR (Pt. 1704) 1; Iorapuu v. State (2020) 1 NWLR (Pt. 1706) 391. Thus, the lower Court’s invitation of circumstantial evidence was not offensive to the law. At this juncture, it is important to appreciate the purport and elements of circumstantial evidence in our criminal justice system. In Mohammed v. State (2007) 11 NWLR (Pt. 1045) 303 at 327; I.T.

Muhammad, JSC (now CJN) explained it in these illuminating words: It is the proof of circumstances from which, according to the ordinary course of human affairs the existence of some fact may reasonably be presumed… It is that evidence of surrounding circumstances which by un-designed coincidence, is capable of proving a proposition with the accuracy of mathematics. It has been described, at times, as the best evidence in that witnesses can lie, but circumstances cannot lie. For it to ground conviction, it must be positive, compelling, direct and link an accused with the offence.

It is an amphibious evidence in that it has a place in criminal and civil proceedings, see Usman v. State (2013) 12 NWLR (Pt. 1367) 76; Isma’il v. State (2011) 17 NWLR (Pt. 1277) 601; Odogwu v. State (2013) 14 NWLR (Pt. 1373) 74; Oguno v. State (2013) 15 NWLR (Pt. 1376) 1; Yakubu v. State(2014) 8 NWLR (Pt. 1408) 111; Usman v. State(2014) 12 NWLR (Pt. 1421) 207; Udor v. State (2014) 12 NWLR (Pt. 1422) 548; Aikhadueki v. State (2014) 15 NWLR (Pt. 1431) 530; Abokokuyanro v. State (2016) 9 NWLR (Pt. 1516) 110; Ogogovie v. State (2016) 12 NWLR (Pt. 1527) 468; Ezeuko v. State (supra); Thomas v.

State (2017) 9 NWLR (Pt. 1570) 230; Igbikis v. State (2017) 11 NWLR (Pt. 1575) 126. Paul v. State (2019) 12 NWLR (Pt. 1685) 54; Orisadipe v. State (2019) 13 NWLR (Pt. 1688) 24; Itodo v. State (2020) 1 NWLR (Pt. 1704) 1. Let me observe quickly that deployment of inference is an indispensable component of circumstantial evidence. In law, inference is: “A conclusion reached by considering other facts deducing a logical sequence from them”, see Muhammad v State (2017) 13 NWLR (Pt. 1583) 386 at 420, per Augie, JSC. The law gives the Court the wide latitude to draw inferences, see Babatunde v.

State (2014) 2 NWLR (Pt. 1391) 298; Owhoruke v C.O.P.(2015) 15 NWLR (1483) 557; Morah v. FRN (2018) 15 NWLR (Pt. 1641) 60. In the first place, the appellant made pre-trial statements which were admitted in evidence as exhibits P1 and P2. Even though, the appellant was their owner, they deserted the defence and transmuted into the respondent’s case, Egboghonome v. State (1993) 7 NWLR (Pt. 306) 385; Musa v. State (2013) 9 NWLR (Pt. 1359) 214; Ikumonihan v. State (2018) 14 NWLR (Pt. 1640) 456; Ayinde v. State (2018) 17 NWLR (Pt. 1647) 140; Ifedayo v. State (2019) 3 NWLR (Pt. 1659) 265; Mohammed v.

State (2019) 6 NWLR (Pt. 1668) 203; State v. Ibrahim (supra); State v. Buhari (2019) 10 NWLR (Pt. 1681) 583; State v. Shonto (2019) 12 NWLR (Pt. 1686) 255; Edun v. FRN (supra). It flows from the evidential transfiguration and migration that their contents became part and parcel of the respondent’s case. ​Again, I have visited the record, the keystone of the appeal. The respondent’s oral evidence is wrapped between pages 81 – 106 of the main.

There were/are concrete pieces of evidence on record, offered by the PW2 and PW4, that on that fateful day, the appellant battered/assaulted the deceased, his wife, in their locked-up one room apartment. The appellant refused them ingress into it despite repeated knocks on the door to rescue the deceased based on the alarm she raised. In exhibit P2, the appellant admitted that he dragged out and slapped the deceased and she fell down “on the chair in my one room apartment nursing the pain”.

This undiluted admission corroborates the pungent evidence of PW2 and PW4 on the assault the appellant rained on the deceased whilst holed up in their one room apartment. Battery or assault on a person falls squarely within the firmament of criminality. In realm of criminal law, offence connotes an illegal act or a crime. It is a violation of a law for which penalty is prescribed. It is an act that is prohibited by the lawful authority of the state, see Ifeanyi v. FRN (2018) 12 NWLR (Pt. 1632) 164. In effect, battery/assault is a sterling instance of an unauthorised/unjustified act/conduct.

There were strong and unchallenged evidence, proffered by the respondent’s prime witnesses, PW2 and PW4, who were milling around the locus criminis, that no sooner had the appellant unbolted/unlocked and exited their one room locus delicti than the deceased started vomiting blood – a quintessence of hemorrhage which is indicated as one of the causes of her death in exhibit D1. Ample evidence disclosed that sooner than later, at about 1pm, the deceased expired in the hands of their neighbour sympathisers.

The irresistible evidence, drawable/inferrible from the impregnable evidence, was that the demise of the deceased was an offspring of the indirect and unlawful act of the appellant’s assault on her. It stemmed from these pieces of evidence that there was ample causal nexus between the death of the deceased and the inexcusable act of the appellant. A causal link exists in the face of a proximate cause/event done by a person whose conduct terminated the life of another.

I must stress that those pieces of evidence were incontrovertible testimonies on the incidents surrounding the death of the deceased. The law grants the Court the unbridled licence to act/rely on unchallenged evidence, see Ayeni v. State (2016) 12 NWLR (Pt.1525) 51; Mathew v. State (2018) 6 NWLR (Pt. 1616 561; Gana v. FRN (2018) 12 NWLR (Pt. 1633) 294; Musa v. State (2018) 13 NWLR (Pt. 1636) 307; Bassey v. State (2019) 18 NWLR (Pt. 1703) 126; Sale v. State (2020) 1 NWLR (Pt. 1705) 205.

It cannot be gainsaid, decipherable from the evidence of the respondent’s star witnesses, PW2 and PW4, that the appellant was alone with the deceased in their inaccessible one room apartment. Samuel, their 17 months old baby boy was, in the mind of the law, doli incapax – incapable of committing a crime. In essence, no other person committed the act of battery/assault on the deceased that snowballed into her untimely death.

The classic evidence, catalogued above, amply, neutralise the effervescence of the incessant denial and weak-kneed defence of want of causal linkage erected, brandished and paraded by the appellant. The pieces of uncontradicted sterling evidence, presented by the respondent, are positive, compelling, direct and irresistibly link/point at, with the mathematical accuracy even, that the appellant was the particeps criminis in the offence of manslaughter laid against him.

Those pieces of critical evidence, furnished by the respondent, with due reverence, expose the poverty of the appellant’s seemingly scintillating contention on the stubborn point. It flows that the lower Court did not, in the least, fracture the adjectival law in its employment of circumstantial evidence against the appellant to fetch the reprobation of this Court. Per contra, I endorse it in toto. ​In a spirited bid to decimate the lower Court’s decision, the appellant invented two defences. The one is anchored on the medical report. The other is pegged on the infirmity of the deceased.

The appellant decried the lower Court’s failure to find in his favour on the two defences. I take them seriatim. In the appellant’s defence, he tendered a medical report: a post mortem report conducted on the corpse of the deceased. Its admission was not greeted with any opposition by the respondent. It was admitted as exhibit D1. It is reflected between pages 97-103 of the main record. It was authored by one consultant pathologist – Dr. S.S. Soyemi.

To begin with, in the twilight of the medical report, the exhibit D1, at page 103 of the main record, the consultant pathologist, inter alia, found: “7 Bruises on the face, right hand, left elbow and abdominal wall”. He identified “Massive haemorrhage” as one of the causes of death. These findings, to my mind, are consistent with the assault the appellant unleashed on the deceased. The bruises all over her body were the aftermath of the battery on her. Vomiting blood has serious linkage with massive haemorrhage – discharge of blood from the blood vessel.

In effect, the medical report/evidence consolidates the evidence proffered by the respondent on what befell the deceased on that fateful day. ​In any event, the heavy weather which the appellant made about the admission of exhibit D1 is unwarranted in law. Medical evidence, which encompasses medical report, is no longer sine qua non for proof of homicide cases in criminal jurisprudence.

It is settled law that medical evidence is rendered otiose where: death is instantaneous on attack, the cause of death is known or could be inferred from the circumstances of evidence adduced or there is abundant evidence of the manner of death, see Ogba v. State (1992) 2 SCNJ/(1992) 2 NWLR (Pt. 222) 164; Ubani v. State (2003) 18 NWLR (Pt. 851) 224; Sowemimo v. State (2004) 11 NWLR (Pt. 885) 515; Ben v. State (2006) 16 NWLR (Pt. 1006) 582; Ogbu v. State (2007) 5 NWLR (Pt. 1028) 635; Akpa v. State (2008) 14 NWLR (Pt. 1106) 72; Afosi v. State (2013) 13 NWLR (Pt. 1371) 329; Maigari v.

State (2013) 13 NWLR (Pt. 1384) 425; Galadima v. State (2017) 12 NWLR (Pt. 1580) 339; Muhammad v. State (2017) 14 NWLR (Pt. 1583) 386; Galadima v. State (2017) 14 NWLR (Pt. 1585) 187; Ukpong v. State (2019) 6 NWLR (Pt. 1667) 1; Hamza v. State (2019) 16 NWLR (Pt. 1699) 418; Sani v. State (2020) 11 NWLR (Pt. 1736) 490. Thus, the medical report, exhibit D1, which the appellant waved about to douse the respondent’s case, was disabled from its birth. It counted against his case.

Contrariwise, it concretises the evidence of the respondent. ​The other defence, contrived by the appellant to insulate it against the crime, pertains to the deceased’s ailment. It was contended, on behalf of the appellant, that the deceased was sick-suffering from cough and pneumonia. The import of the defence, in my humble view, is that since the deceased was unhealthy, it was necessary to snuff life out of her by accelerating her death.

This defence, to all intents and purposes, exudes the hallmarks of mercy killing or euthanasia (easy death) – “The act or practice of causing or hastening the death of a person who suffers from an incurable or terminal disease or condition, especially a painful one, for reasons of mercy”, see Bryan A. Garner, Blacks Law Dictionary, 10th edition (USA: West Publishing Co., 2004) page 672. In our criminal jurisprudence, the defence of euthanasia/mercy killing is not available to an accused charged with homicide. The reason is plain.

Every person is entitled to his right to life as guaranteed and propagated in Section 33 of the Constitution, as amended. Incontestably, the right to life is not an absolute or inviolable one as it admits of certain exceptions in deserving circumstances under which a citizen may lose his life. See Amoshina v. State (2011) 14 NWLR (Pt. 1268) 530; ACN v. INEC (2013) 13 NWLR (Pt. 1370) 161; Kalu v. FRN (2016) 9 NWLR (Pt. 1516) 1; Folorunso v. State (2020) 15 NWLR (Pt. 1746) 33.

However, euthanasia/mercy killing does not come under the province of those exceptions. In R. V. Nta (1961) All NWLR 590, the accused struck the deceased, who had an enlarged spleen due to chronic malaria, twice in the stomach and he died. The Supreme Court convicted the accused for manslaughter. Besides, the fact that the appellant had full knowledge of the deceased’s infirmity was the more reason he should have restrained himself from assaulting the deceased.

In effect, the defence of infirmity or mercy killing/euthanasia, mounted by the appellant to demolish the respondent’s case and escape the trap of justice, was lame and mired in the quicksand defeasibility. The appellant cannot reap from the sanctuary of the defence that has no imprimatur of the law.

It will therefore irritate the law to make the phony defence available to the appellant. ​My noble Lords, it stems from this expansive tour d’ horizon on evaluation of evidence, done in due loyalty to the law, that the respondent proved the necessary ingredients of the offence of manslaughter preferred against the appellant beyond reasonable doubt as decreed by Section 135 (1) of the Evidence Act, 2011. After all, proof beyond reasonable doubt does not evince proof beyond all iota/shadow of doubt, see Banjo v. State (2013) 16 NWLR (Pt. 1331) 455; Umar v.

State (2014) 13 NWLR (Pt. 1425) 497; Dibia v. State (2017) 12 NWLR (Pt. 1579) 196; Agu v. State (2017) 10 NWLR (Pt. 1573) 171; Thomas v. State (2017) 9 NWLR (Pt. 1570) 230; Ofordike v. State (2019) 5 NWLR (Pt. 1666) 395; Itodo v. State (2020) 1 NWLR (Pt. 1704) 1. In the legal parlance, proof beyond reasonable doubt is attained when the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with a sentence “of course it is possible but not in the least probable”, see Maigari v. State (2013) 17 NWLR (Pt. 1384) 425.

It implies that the solemn finding of the lower Court, which inculpated the appellant, as the perpetrator of the offence charged, is unassailable. Due to its unimpeachable status, this Court is robbed of the jurisdiction to tinker with it, seeOlatunbosun v. State (2013) 11 NWLR (Pt. 1382) 167; Ogie v. State (2017) 16 NWLR (Pt. 1591) 287. ​Flowing from the above juridical survey, the lower Court did not offend the law when it found ultimately that the respondent proved beyond reasonable doubt, the offence of manslaughter preferred against the appellant.

The lower Court acted ex debito justitiae and the finding is faultless. On this score, I therefore, with due respect, dishonour the learned appellant’s counsel’s salivating solicitation to sacrifice the decision on the undeserved altar of improper and perfunctory evaluation of evidence for want of legal justification. In the end, I have no option than to resolve the conflated issues two and three against the appellant and favour of the respondent. By way of obiter, this case is a good lesson for men who convert their wives into punching bags.

Marriage is a social relationship divinely ordained for the purposes of procreation and companionship. It is not a battlefield where spouses engage in endless duel to the advantage of the stronger. When life is lost owing to marital feud, the law will hunt the culprit to the gallows. It will ignore the hardships that will befall the offspring of such a marriage that is engulfed and embroiled in marital imbroglio. On this score, it is wiser to act with restraint in domestic quarrels. The appellant must be full of regrets for his unwarranted unfriendly actions to the deceased.

On the whole, having resolved the three issues against the appellant, the destiny of the appeal is obvious. It is devoid of any ounce of merit and liable to the reserved penalty of dismissal. Consequently, I dismiss the appeal. I affirm the judgment of the lower Court delivered on 16th February, 2016.

ABDULLAHI MAHMUD BAYERO, J.C.A.: I was privileged to read in draft, a copy of the lead judgment just rendered by my learned brother Obande Festus Ogbuinya JCA. I also agree that the Appeal is devoid of any ounce of merit and is accordingly dismissed by me. I abide with all the consequential orders in the lead judgment.

PETER OYINKENIMIEMI AFFEN, J.C.A.: I had the advantage of reading, in draft, the judgment just delivered by my learned brother, Obande Festus Ogbuinya, JCA and I give my concurrence to it. I agree with the judicial reasoning and conclusions reached on the issues raised in this appeal, which I adopt as my own.

Judgment

ONYEKACHI AJA OTISI, J.C.A. (Delivering the Leading Judgment): By an information dated 27/11/2017, the Appellant, and a second defendant, Michi Industries International Ltd, were arraigned before the High Court of Lagos State, Ikeja Judicial Division on the following three counts charge: 1.

Stealing contrary to Section 285(9)(b) of the Criminal Law of Lagos State of Nigeria, 2011 Particulars of Offence Michael Ikechukwu Michael and Michi Industries International Ltd on or about the 9th October, 2012 at Lagos within the Ikeja Judicial Division, dishonestly converted to your personal use the sum of Seven Million Four Hundred and Eight Thousand Naira (N7,408,000.00) being the value of Electronic Equipment and Instruments, property of Ibina Celestine. II. Obtaining goods by false pretence contrary to Section 1(2) and (3) of the Advanced Fee Fraud and other Related offences Act.

Particulars of Offence Michael Ikechukwu Michael and Michi Industries International Limited, on or about the 9th October, 2012 at Lagos within the Ikeja Judicial Division with intent to defraud, induced Mr. Celestine Ibina of NO. BB. 27H Alaba International Market, Ojo, Lagos to supply and deliver Electronic Equipment and Instruments valued N7,408,000.00 (Seven Million Four Hundred and Eight Thousand Naira) to Michi Industries International Limited on the false pretence that after two months of the supply you will pay back the amount, which pretence you knew to be false. III.

Issuance of Dud Cheque contrary to Section 1(1) of the Dishonoured Cheques (Offences) Act Cap D11, Laws of Federation of Nigeria, 2004.

Particulars of Offence Michael Ikechukwu Michael and Michi Industries International Limited on or about the 13th March, 2013 at Lagos within the Ikeja Judicial Division, without sufficient funds to your credit in Zenith Bank Plc domiciliary Account no: 61516920 dated 13th March, 2013 for the sum of N3,408,000.00 (Three Million Four Hundred and Eight Thousand Naira) in favour of Ibina Celestine as payment for the product supplied to Michi Industries International Limited which cheque upon presentation for payment was returned unpaid. The Appellant pleaded not guilty to the offences.

At the trial, the prosecution called four witnesses while Appellant testified for himself, and the 2nd defendant. The evidence before the lower Court can be summarized in this manner: PW1, the primary complaint, was Mr. Celestine Ibina. He testified that sometime in 2012, the Appellant informed him that he had been awarded a contract for the supply of musical instruments/equipment and furniture by African Trinidard & Tobago Company (AT & T) in Agbara, Lagos and that he wanted PW1 to be involved.

The Appellant further informed him that the contract was being financed by the Bank of Industry (BOI) on behalf of AT & T, and that he, PW1, would be paid after BOI releases payment. Upon confirmation that this was indeed the case, PW1 agreed to be part of the business. The Appellant thereupon gave him a list of goods, comprising of musical instruments and furniture, to supply. PW1 gave his prices for the said items. After negotiations, the parties agreed on N9.5 million. The items were supplied by PW1, and inspected by BOI.

Two months after the supply, the Appellant gave him a cheque for N9.5 million, which was returned unpaid. PW1 later found out that the Appellant had been fully paid for the supply. When every attempt at retrieving payment from PW1 failed, he reported the matter at Morogbo Police Station, where the PW1 and the Appellant made statements. At the police station, the Appellant transferred N5 million to the Appellant. He disclosed that some of the items supplied were returned. The police intervened to persuaded PW1 to accept 30% of the items, worth N1.1 million, while the Appellant took 70%.

PW1, who reluctantly accepted the return of the goods, insisted that the transportation cost of N8,000.00 also be paid by the Appellant, bringing the balance due to him from the Appellant to N3,408,000.00. The Appellant wrote a cheque for the said balance of N3, 408,000.00, which was again returned unpaid on presentation. PW1 subsequently wrote a petition to the Economic and Financial Crimes Commission (EFCC). The Appellant gave evidence for himself, largely in line with the evidence for the prosecution.

He admitted that he had a contract with AT & T to supply electronics and studio equipment worth N20,960,000,00, which was to be sponsored and funded by BOI. The aspect of the contract involving furniture was to be supplied by Century Base Ltd. DW1 testified that there was an agreement between himself and PW4, the CEO of Century Base Ltd, that because Century Base Ltd could not supply the furniture awarded to them, he should supply it. But that, since the approval was already given by BOI in the name of Century Base Ltd, when payment will be made, the money will be given to him.

The Appellant however said that when the money was eventually paid, he was not given the money by PW4. At the conclusion of trial, the Appellant was discharged and acquitted on Count 2, for obtaining by false pretences, and count 3, for issuance of a dud cheque, but was convicted on Count 1, for stealing. The learned trial Judge ordered that he should make full restitution to PW1 the sum of N3,408,000.00. Aggrieved by his conviction and sentence, the Appellant lodged this appeal by Notice of Appeal filed on 20/3/2019, on six grounds of appeal, pages 259 – 264 of the Record of Appeal.

The Appellant’s brief was filed on 24/7/2019 but deemed on 23/1/2020. The Respondent’s brief was filed on 2/7/2021 but deemed on 24/11/2021. At the hearing of the appeal on 24/11/2021, the Briefs of Argument were, respectively, adopted by A. Owolabi, Esq., for the Appellant, and by S.O. Saka, Esq., for the Respondent. The Appellant distilled four issues for determination of this appeal: i.

Whether the learned trial Judge was right convicting 1st appellant of stealing when she said “I must agree with the defence therefore that the element of intention to defraud at the time of obtaining the goods under consideration but yet went ahead to convict 1st appellant when intention to defraud is one of the element(sic) of stealing”. ii.

Whether the learned trial Judge was right when the charge before her alleged 1st appellant dishonestly converted to his personal use sum of Seven Million Four Hundred and Eight Thousand naira (N7,408,000.00) being the value of Electronic Equipment and Instrument property of Ibina Celestine but went ahead to convict him for stealing without stating out what stole (sic) but only said “It is also hereby ordered that the defendant shall make full restitution of the sum of Three Million Four Hundred and Eighty Thousand Naira) to PW1, Celestine Ibina and the prosecution is to employ every means within its power to ensure same”. iii.

Whether the Section 6 of the Economic and Financial Crimes Commission Act is such a robust and elastic statute that empowers the organization to colourate a failed commercial transaction that ought to have found action in a civil suit a crime. iv. Whether from the totality of evidence adduced the offence of stealing has been established against 1st appellant hence rightly convicted.

The Respondent adopted the issues raised by the Appellant but further formulated the following issue: Whether the prosecution proved its case beyond reasonable doubt sufficient enough and whether the trial Judge was right in convicting the defendant for the offence of stealing. The Respondent noted that the Appellant failed to relate the issues raised for determination to any of the four grounds of appeal. Interestingly, I also note that the Respondent fell into the same ditch. The issue framed by the Respondent was not tied to any of the Appellant’s grounds of appeal.

In Idam v NLPC (2021) LPELR-53400(CA) at pages 6 – 8, I expressed the following view: “Counsel have always been admonished to marry the issues raised for determination to the ground or grounds of appeal. See Akpan v. FRN (2011) LPELR – 3956(CA), Yussuf v. Ilori (2007) LPELR-5137(CA), Ukwuoma v. Okafor (2016) LPELR-41505(CA), Daisi v IGP (2019) LPELR-47897(CA).

This paints a clear picture of the appeal and obviates the need for the respondent and the Court to examine the grounds of appeal vis-a-vis the issues raised for determination in order to ascertain that the issues have been distilled from the grounds of appeal or otherwise, and also ascertain whether any ground of appeal has been abandoned… The point must, however, be made that the extant COA Rules do not prescribe that issues for determination in an appeal must be tied to the grounds in briefs of parties, on pain of a sanction.

Thus, where an appellant has failed to tie his issues to the grounds of appeal, as is the convention or practice, the current attitude of the appellate Courts appears to be one of liberality. See Agodi v Anyanwu (2014) LPELR-23746(CA), Ukwuoma v. Okafor (supra), Daisi v IGP (supra).

In Otu v ACB International Bank Plc (2008) LPELR-2827(SC), the Supreme Court, per Tobi, JSC said, page 13: “Issues are formulated from grounds of appeal and if they are based on valid grounds of appeal, an appellate Court must consider them.” Therefore, while failure to adhere strictly to the practice may not be penalized, the Court is bound to ensure that the issues formulated for determination of an appeal are in fact related to or arise from the grounds of appeal.

In that light, this Court now resounds the demand that counsel should tie issues for determination to the grounds of appeal in order to remove the additional burden of doing so on the Court.” I stand by this same view. See also Fugro Subsea LLC v Petrolog Limited (2021) LPELR-53133(CA). That said, an examination of the issues formulated by the Appellant for determination of this appeal will confirm that the issues indeed flow from the grounds of appeal.

However, to my mind, Issue IV as formulated by the Appellant, which is the same as the sole issue framed by the Respondent, will resolve the issues in controversy herein. I shall therefore adopt the said Issue IV for determination of this appeal, and consider alongside any other arguments made by the parties.

Arguments The Appellant contended that the element of fraud in obtaining goods under false pretence, for which the Appellant had been acquitted, cannot be said to be different from the one in stealing, especially when the sum claimed to have been stolen was associated with the same goods that were adjudged by the lower Court not to have been obtained under false pretence.

The Appellant argued that the learned trial Judge did not mention precisely what the Appellant was alleged to have stolen in the pronouncement of his conviction and sentence, referring to page 258 of the Record of Appeal, particularly the third line. It was submitted that the fraudulent intention by an accused person, required as element of the offence of stealing is foundational. That the intent to defraud is the act resulting to the commission of the alleged offence, and where the intention to steal is missing, the lower Court ought to have discharged and acquitted the Appellant.

It was submitted, assuming without conceding that Appellant stole, the intention to defraud that can result to his conviction would be the fraudulent intention exhibited at the commencement of the transaction in issue, and this intention must be manifestly established by the prosecution. In this case, that the Appellant did not exhibit at any time of the transaction to the conclusion of same, any intention to defraud PW1. From the outset of the transaction, the Appellant had informed PW1 that he will not be paid until BOI paid him.

PW1 became impatient and did not wait until payment was made by the bank. The Appellant paid the PW1 N5 million of the sum, a day after he was paid by BOI, which was the day PW1 brought police to arrest Appellant. Still on what constitutes an intent to defraud, reliance was placed on Onwudiwe v FRN (2006) no citation supplied. If the Appellant did not have fraudulent intention to obtain goods on false pretence, it is a paradox that he will be convicted for stealing unnamed goods, items, property or materials.

An offender even at conviction must be made to know what he is being convicted for, and not just the pronouncement of stealing as did the trial Judge. It was also submitted that Section 278 of the Criminal Law of Lagos State, 2011 emphasized the need to establish an intention to defraud. ​ The Appellant reiterated that the learned trial Judge ought to have stated exactly what the Appellant was alleged to have stolen. On count 1, the charge was stealing of the sum of N7,408,000.00 being the value of Electricity Equipment and Instrument property of Ibina Celestine.

The learned trial Judge however convicted the Appellant on this count 1 for stealing, without stating out what he stole but said “it is also hereby ordered that the defendant shall make full restitution of sum of Three Million Four Hundred and Eight Thousand Naira to PW1, Celestine Ibina and the prosecution is to employ every means within its power to ensure same”. It was argued that this was at variance with the particulars of offence associated with count 1 which was N7,408,000.00.

It was argued that the failure to state what the Appellant stole in his conviction and sentence occasioned a miscarriage of justice. The case of Commissioner of Police v Agu 1980(1) NCR 234 was cited and relied on. The learned trial Judge had agreed with the prosecution that there was no basis to investigate Century Base Company, mentioned by the Appellant in his defence.

The decisions in Ogunleye v The State (1991) 3 NWLR part 177 at 4, Opeyemi v The State (1985) 2 NWLR (Pt.5)101 were cited and relied on to submit that a trial Court has a duty to consider and examine a defence raised by the defendant, no matter how improbable. To do otherwise would amount to a miscarriage of justice, which would result in the decision being set aside. The evidence of the Appellant against the evidence of the prosecution on the issue of Century Base Company was referred to in submitting that the lower Court ought to have accepted and acted on the evidence of the Appellant.

It was further submitted that the provisions of Section 6 of the Economic and Financial Crimes Commission Act, which gives the EFCC the responsibility of conducting an investigation into whether any person has committed a financial crime under the Act, implies that when a report by way of a petition is made to the agency, it has a responsibility to x-ray such petitions and see whether the report is one that can be established in crime or one of civil action.

That the content of a petition is not what makes it a crime but the transaction to be investigated. ​ It was argued that a business transaction between two persons, where one of the parties paid part of the sum in the agreement and the remaining balance for the goods became contentious between them, cannot be said to amount to economic crime to the extent of the offence of stealing. PW1 and Appellant entered into contractual agreement part of the sum in question was paid and the remaining sum became contentious in form of returned goods.

That having regard to the evidence before the trial Court, it was not a crime. The decision in Diamond Bank v Opara (2018) 7 NWLR (Part 1617) 1 was cited and relied on. It was submitted that from the totality of the evidence by the prosecution, the offence of stealing was not established against the Appellant by credible evidence, citing Ayeni v The State (2016) LPELR 40105(SC); Oyebanji v The State (2015) LPELR 24751(SC). The Court was urged to allow the appeal and set aside the conviction and sentence of the Appellant.

For the Respondent, it was submitted that its duty was to prove the elements of the alleged offences beyond reasonable doubt, citing State v Bakare (1987) 1 NWLR (PT 52) 579; Nwankwo v FRN (2003) 4 NWLR (PT 809) 1; Onagoruwa v State (1993) 7 NWLR (PT 303) 49 at 85; Egbirika v State (2014) 4 NWLR (PT. 1398) 558 at 585. On the elements of the offence of stealing, reliance was placed on Ayeni v The State (SC. 447/2011) (2016) NGSC 85; Aosika v State (2010) 9 NWLR (PT 1198) 49 at 52; Nwaturuocha v State (2011) 6 NWLR (PT 1242) 170 at 174.

The Respondent relied on the evidence adduced to submit that the elements of stealing were established by the prosecution. The evaluation of evidence and ascription of probative value lay within the province of the lower Court, which had the opportunity of hearing the testimony of witnesses and observing their demeanor. It was submitted that an appellate Court would not generally interfere with the findings of a trial Court in this regard unless shown to be perverse. See Onogwu v State (1995) 6 NWLR (PT 401) 276 at 552.

The Court was urged to discountenance the submissions of the Appellant’s Counsel. It was submitted for the Respondent that the EFCC was empowered to arrest, investigate and prosecute financial crimes such as exhibited by the actions of the Appellant. On the elements of the offence of stealing reliance was placed on FRN v Ikpe (2005) 2 QCCR 155 at 196. It was submitted that the money alleged to have been stolen was N9.5 million, property of PW1 and his other colleagues. The learned trial Judge merely ordered the Appellant to pay the unrecovered balance of N3, 408,000.00.

The Appellant did not deny the transaction or deny the outstanding balance. The Respondent contended that the fact that the Appellant opted to use the money for his own purport until later when part of it was recovered as exhibits, meant that he not only intended to deprive the victims of the use of their money, but had conclusively converted the money. That any other explanation was an afterthought. The case of Onwudiwe v FRN (2006) 10 NWLR (PT 988) 382 at 427 was cited and relied on.

The Respondent submitted that the burden of proof placed on it by virtue of Sections 135 and 137 of the Evidence Act, 2011 had been discharged. Reliance was placed on C & C Const. Co Ltd v Okhai (2003) 18 NWLR (PT 851) 79 at 100; Torri v National Park Service of Nigeria (2011) 13 NWLR (PT 1264) 365 at 382. The Court was finally urged to dismiss the appeal. Resolution The Respondent has rightly submitted, and it is well settled that the burden of proving the guilt of an accused person in any criminal trial must be discharged by the prosecution beyond reasonable doubt. See Ogundiyan v.

State [1991] 1 NSCC 448, The State v. Azeez (2008) 4 S. C. 188, Shande v. State (2005) 12 MJSC 152, John Agbo v. State (2006) 1 S.C. (PT. II) 73, Udo v. State (2006) 7 S.C. (PT. II) 83. See also Section 135 Evidence Act, Laws of the Federation of Nigeria, 2011. This simply means there is credible evidence upon which the Court can safely convict; Miller v. Minister of Pensions (1947) 2 All E.R. 372 at 373, cited with approval in John Agbo v. State (supra).

Therefore, where all the ingredients of an offence have been credibly and clearly established by the prosecution, the offence is proved beyond reasonable doubt. See Osetola v. State (2012) LPELR-9348(SC), Alabi v. State (1993) 7 NWLR (PT 307) 511 at 523, Ajayi v. State (2013) 2-3 MJSC (PT 1)59. The Appellant was convicted of stealing, punishable under Section 287 of the Criminal Law of Lagos State, 2011.

Section 279 thereof defined stealing as: Any person who dishonestly: (a) takes the property of another person; or (b) converts the property of another person for his own use or to the use of any other person, is guilty of the offence of stealing.

Section 279(2) gave an expose of the meaning of dishonestly in this manner: A person is deemed to dishonestly take or convert the property of another if he does so with any of the following, to: (a) intent to permanently deprive the owner of the property; (b) intent to permanently deprive any person who has a special interest in the property; (c) intent to use the property as a pledge or a security; (d) intent to part with the property on a condition as to its return which he may be unable to perform; (e) intent to deal with the property in a manner that it cannot be returned in the condition it was in at the time of the taking or conversion; or (f) intent to in the case of money, an intent to use it at his will although he may intend to repay the owner afterward.

By these provisions, the offence of stealing is committed where a person fraudulently takes or converts to his own use or the use of any other person, any property capable of being stolen, in any of the circumstances enumerated under Section 279(2) reproduced above.

Simply put, ingredients of the offence of stealing which must be proved by the prosecution are: (a) that the thing stolen is capable of being stolen; (b) that the accused has the intention of permanently depriving the owner of the thing stolen; (c) that the accused was dishonest; and, (d) that the accused had unlawfully appropriated the thing stolen to his own use. See also Oshinye v. Commissioner of Police (1960) 5 SC 105, Chianugo v. State (2002) 2 NWLR (PT 750) 225, Adejobi v. State (2011) LPELR-97(SC), Ayeni v The State (2016) LPELR-40105(SC) Chyfrank Nigeria v.

Federal Republic of Nigeria (2019) LPELR-46401(SC), Takim v The State (2014) LPELR-22667(CA). The evidence before the lower Court was largely straightforward. It was not in dispute that the contract entered into by the Appellant and PW1 for the supply of musical instruments/equipment to AT & T, sponsored by BOI, was worth N9.5 million. It was not in dispute that some of the items worth N1.1 million were returned to PW1. It was also not in dispute that the sum of N5 million was paid to PW1 by the Appellant, leaving a balance of N3,400,000.00.

It was also not disputed that the transportation cost for the returned items was N8,000.00. Under cross-examination, the Appellant had said, page 159 of the Record of Appeal: “It is possible I agreed to pay him N8,000 for the transportation of the returned goods to add up to N3.408 (sic), its been a long time.” This was certainly not a categorical denial. The total sum outstanding was therefore N3,408,000.00. This was the sum that the learned trial Judge, in convicting him on Count 1, held that the Appellant intended to permanently deprive PW1.

The learned trial Judge then ordered the Appellant to make full restitution of the said sum of N3,408,000.00. To my mind, the relevant question is whether the Respondent established that the Appellant had acted with fraudulent intention in failing to pay over the outstanding sum of N3,408,000.00 to PW1. As it is, the offence can only be said to be committed if the taking of the thing capable of being stolen is done fraudulently, and with an intent permanently to deprive the owner of the thing of it.

Contrary to the postulations of the Respondent, the unsubstantiated evidence of PW1 that he previously had a transaction with the Appellant in which the Appellant defrauded him is not unassailable proof that the Appellant acted herein fraudulently or that the Appellant should be condemned as being a dishonest character. In any event, PW1 gave no details of the said transaction. I do not see its relevance herein. The entire sum due to PW1 on his contract with the Appellant was N9.5 million. The Appellant and PW1 had the understanding that PW1 would be paid when BOI paid for the contract.

The learned trial Judge in evaluating the evidence adduced, made the following findings, pages 255 – 256 of the Record of Appeal: “The evidence before the Court is that when the money eventually hit the Defendant’s Account in Exhibit 6 on 25/02/2012, the 1st Defendant never called PW1 to inform him with a caveat that some goods were rejected so as to work things out between them. PW1’s evidence is that the 1st (sic) goods and both his capital and profit had since then been tied down.

The cheque of N20M paid into the Defendant’s account was well over the N9.5M goods PW1 had supplied the Defendants before the rejection of certain goods. The 1st Defendant never called PW1 on the pretext that he gave “someone” with no name to give a cheque to PW1. This confirms that he admitted owing PW1, but it was PW4 that eventually called PW1 to let him know that the Defendants had been paid while he, the 1st Defendant was still pleading with PW1 to be patient claiming that he had not been paid.

This led to PW1 inviting the police to arrest the 1st Defendant and after much interrogation and interventions, the 1st Defendant reluctantly told the Police that he could only pay N5M to PW1 as certain goods were rejected, it was at that stage PW1 knew for the first time that PW4 returned some goods. The 1st Defendant testified that he was forced to take 70% of the returned goods while 30% was returned to PW1.

Since the N5M had been forced out of the Defendants out of the N9.5M that was the initial value of the goods supplied before the returned goods, the balance would have been N4.5M which the 1st Defendant has alleged was the value of the returned goods out of which 70% was shared to him and 30% to PW1, which culminated in him being again forced to sign a cheque for N3,408,000.00, the N8,000 he admitted was what was agreed as the transport cost of the returned goods to PW1’s shop.

The issue is therefore no longer that the 1st Defendant was forced to take 70% of the goods, but the fact that the goods never left his possession. He did not tell the Court what he did with the said goods, either selling or otherwise making use of same for his own benefit. The value therefore of the remaining 30% is what was agreed at the Police Station and which is also logical, to be N3,400,000.00 which has been due for payment to PW1 since that February 2013 and which has remained unpaid till date. You cannot retain the goods and not pay for them.

The evidence of PW1, PW4 and DW1 also shows that the 1st Defendant actually padded the prices of the goods supplied by PW1 to PW4 and after PW4 found out the truth from the 1st Defendant. He demanded for a refund of the calculated excess of N8M which is also reflected in Exhibit 6. This angered the 1st Defendant so much that he went after PW1 to challenge him for divulging the actual prices at which he supplied the goods to the Defendants, as stated in his own oral testimony in Court.

The evidence of PW4 in supporting his demand for this refund is that what he agreed with the 1st Defendant was a supply of all the goods at the real Market value for which he would be paid N1M for his services. The 1st Defendant himself in his oral evidence in Court testified that when he told PW4 that he would get the supplies for him at the best Market value he would get, PW4 promised that he would give him N1M for this. This had corroborated the said evidence by PW4 and for which the 1st Defendant went charging after PW1.

It therefore confirms the fact that the agreement DW1 had with PW4 was the supply of the goods at the Market value and the Defendants’ profit would only be N1M!

But of course, this would not satisfy the 1st defendant even though he would still have N7M left in the account after the N8M paid back to PW4 and the N5M, he was forced to pay PW1, out of which anyone with a moral uprightness would have paid PW1’s outstanding N3,408,000 and the Defendants would still have a profit about N1.5M. ​It was never in their contemplation that the Defendants would hike up the prices of the good supplied and still be paid N1M. That is why even by his own evidence he went to challenge PW1 for letting PW4 know the exact prices at which he PW1 supplied the goods.

He was and is still smarting from the excess of N8M he was forced to refund. Because of the unwillingness of the 1st Defendant to pay the balance of N3,408,000 to PW1, he secretly parked out of his house which PW1 knew and relocated. It took the private intelligence of PW1 to trace him to his new house where his arrest was eventually executed after surveillance at the break of dawn before he could sneak out. It is therefore clear that the Defendants never intended to pay the balance of N3,408,000.00 even until now when unassailable defences are still being raised.

It does give the impression that the 1st Defendant is not a man given to honouring reciprocal obligations… It should be pointed out that the Defendant’s Account in Exhibit 6 was in perpetual debit balance for 2 years unbroken until the N20M credit arising from the supply of the goods of PW1 to him middleman between PW1 and PW4, PW1 gave up his goods on credit for under N10M while the source of the money was not a windfall to PW4 but a loan to be repaid which happily has been confirmed to have been repaid.

Only the Defendants had no monetary contribution in the whole transaction and he alone wanted to reap the benefit of virtually everything PW1 and PW4 had sown.

There was no single credit inflow in Exhibit 6 for 2 years until the N20M came in for which any reasonable man should have been grateful to both PW1 and PW4 but no, the 1st Defendant chose to cheat them both because PW1 gave him away leading to the “loss” of N8M he was forced to return to PW4, he decided never to pay PW1 either the whole of the value of the transaction or the balance of N3,400,000 which has remained unpaid till date, 6 years on.” In his defence, the Appellant had said that Century Base Ltd, which was to supply furniture to A T & T, backed out of the contract, after their name had been given to BOI.

He had agreed with PW4 and Century Base that he would supply the furniture and when payment is made, it would be transferred to him. The Appellant further said he approached PW1, who introduced him to a certain Chucks, that agreed to supply the furniture. That the total worth of the entire contract with was N20, 926, 000.00 but that he was only paid N20 million. He said that Century Base was later paid for the furniture but that the money due to him, N9.6 million, was not transferred to him by PW4, the CEO of A T & T.

Under cross-examination, the Appellant said, page 159 of the Record of Appeal: “N3.408 million is not with me. It is with PW4. I introduced PW1 to PW4.” Any involvement of Century Base in this matter was not investigated by EFCC. In justifying the failure to investigate Century Base Ltd, PW2 testified that Century Base was not the one awarded the contract by A T & T. Under cross-examination, page 78 of the Record of Appeal, he said: “We did (sic) investigate Century Base because it was not the one that was awarded the contract. It was BOI and the money was paid by BOI, not Century Base.

It is not connected to the contract; the money was paid to the Defendant not Century Base. The excess of N8 million paid to the Defendant was returned by him. This matter had nothing to do with the 2nd Defendant and Century Base. The Defendant executed the contract by supplying the Musical equipment and electronic and he was subsequently paid.” PW4, on his part, said, page 117 of the Record of Appeal: “I contracted the Century Base Company to supply a generator. That is the only relationship I had with Century Base and none between me, Century Base and the Defendant.

Yes, the transaction between me and the Century Base is independent of the transaction between me and the Defendant.” Under cross-examination, PW4 further said, page 119 of the Record of Appeal that if he gave Century Base any supplies to make, outside the generator, it could be confirmed from their invoice, but that for whatever they supplied, they were paid directly. PW4 reiterated that his contract with Century Base had nothing to do with the Appellant.

That the Appellant was paid directly based on his invoice while Century Base was also paid directly for what they had been contracted to supply.

The learned trial Judge found in line with the assertions of prosecution on this issue and held as follows, page 256 of the Record of Appeal: ”It will also appear that the 1st Defendant is trying his defence to a certain transaction with one Century Base Company for the supply of furniture to PW4 on behalf of the Defendants and for which some payment has allegedly been made but in the hands of PW4, PW4 has denied any such transaction in existence stating that the only business he had with Century Base was a direct transaction for the supply of a Generating set which had nothing to do with the Defendants.

This clearly finds support in Exhibit 12 which is the Bank of Industry’s Payment Advice Authorization FCMB showing that all the Century Base ever supplied Africa Trinidad and Tobago Company as a 100 KVA Basic Generator and confirmed by the said Century Base Limited’s letter signed its CEO, Nneji Chike on 20/03/2013. There is no other evidence beyond this before the Court and he who asserts has the burden of proof. The Defendants who assert that any furniture was at all supplied by Century Base to PW4 or anyone at all never proved same.

This confirms PW4’s oral testimony in Court and his extra-judicial. Statements to EFCC in Exhibit 11. The Defendant tendered several documents but none touching on any alleged supply of furniture on their behalf by Century Base. It is very clear from the Defendant’s Statement of Account in Exhibit 6 that the N8M refunded to PW4 was from the N20M and no other money, having been paid the same day the account was credited with the N20M.

I therefore agree with PW2 the Investigating Officer that there was no basis to investigate Century Base Company at all.” The learned trial Judge then concluded that, page 257 of the Record of Appeal: “…the Defendants never intended to pay up the outstanding balance of their indebtedness of N3,408,000.00 to PW1 even though the full value for the goods is with the Defendants which translates to fraudulent conversion.” I see no miscarriage of justice suffered by the Appellant here. He who asserts, proves.

The Appellant failed to prove his assertions that any payment was due to him from Century Base. Further, even if PW4 was meant to have given the Appellant the payment for any furniture he supplied in the stead of Century Base for A T & T, how any such payment impacted on the sum of N3,408,000.00 due to PW1 from the Appellant was not clear. The Appellant did not demonstrate by credible evidence how any such payment due to Century Base but which allegedly ought to have been paid to him by PW4, would in turn affect the unpaid balance due to PW1.

The learned trial Judge, admirably, captured the pith of the evidence of the parties, evaluated and ascribed probative value to the same. The evidence before the trial Court amply demonstrated the fraudulent intention of the Appellant to deprive PW1 of the entire sum due to him on their agreed terms. It was only at the police station that he paid to PW1, N5 million and returned to him N1.1million worth of the items. I see absolutely no reason to disturb the conclusion of the learned trial Judge.

Indeed, the settled position of the law, as expressively stated in Ayeni v State (supra), per Kekere-Ekun, JSC, page 31 of the E-Report, is that: “…it is the primary duty of the trial Court to evaluate the evidence and ascribe probative value thereto. The trial Court has the unique advantage of listening to the witnesses testify and observing their demeanor. See Okoye v. Obiaso & Ors (2010) 8 NWLR (Pt.1195) 145, Amadi v. F.R.N. (2008) 12 SC (Pt. III) 55.

Where a trial Judge has unquestionably evaluated the evidence and properly appraised the facts of the case, an appellate Court would not interfere to substitute its own views for the views of the trial Court. See Gbadamosi V. Dairo (2007) 3 NWLR (Pt.1021) 282, Mogaji V. Odofin (1978) 4 SC 91 Odofin V. Ayoola (1984) 11 SC 72.” See also Iko v The State (2001) LPELR-1480(SC), (2001) 7 SC (PT 11) 115, Egunjobi v FRN (2012) LPELR-15537(SC) and Obidike v The State (2014) LPELR-22590(SC). The Appellant contended that the learned trial Judge failed to state what he stole in the judgment.

The Appellant was charged in count 1 for stealing contrary to Section 285(9)(b) of the Criminal Law of Lagos State of Nigeria, 2011. The particulars of the offence stated N7, 408,000.00 as the sum alleged to have been stolen. The learned trial Judge held, page 258 of the Record of Appeal: “The Defendants intend still to permanently deprive PW1 of the money in issue and they are hereby convicted on Count 1. The punishment for stealing under Section 287 is 3 years imprisonment.

The 1st Defendant is accordingly sentenced to 3 years imprisonment with effect from 13th February, 2018 when he was remanded in prison custody by this Court. It is also ordered that the Defendants shall make full restitution of the sum of N3, 408,000.00 (Three Million, Four Hundred and Eight Thousand Naira) to PW1, Celestine Ibina and the Prosecution is to employ every means within its powers to ensure same.” The conviction of the Appellant was clearly for stealing, as charged.

However, while he was charged for stealing N7,408,000.00, the evidence established the sum in issue to be N3,408,000.00. This is the sum for which the Appellant was ordered to make restitution. The settled position of the law is that where a defendant is charged with an offence and it appears from the evidence that he committed a different offence for which he might have been charged, he may be convicted of the offence which he is shown to have committed by the evidence, regardless of the fact that he was not charged with that particular offence.

See Odeh v State (2008) LPELR – 2205(SC), Ezeja v The State (2008) LPELR-1202(SC), Segun v The State (2018) LPELR-44693(SC). A fortiori, a trial Court can convict a defendant of a lesser offence where the one charged is not proved. See Adava v The State (2006) LPELR-74(SC); Amadi v The State (2019) LPELR-47041(SC). The conditions to be fulfilled in such circumstance are, first, that the elements in the offence charged and those in the lesser offence for which the defendant is convicted must be the same.

Secondly, the evidence adduced and the facts found to be insufficient for conviction in respect of the offence charged, but at the same time support the lesser offence in respect of which the defendant was convicted. See Adeyemi v The State (1991) LPELR-172(SC), Okobi v The State (1984) LPELR – 2453(SC), (1984) 7 SC 47 and Segun v The State (supra). The Appellant was charged with and convicted for stealing. The sum of N7,408,000.00 was stated in the particulars of the offence. The evidence led however was that the contract sum was N9.5 million out of which N3,408,000.00 remained unpaid.

The evidence established that the sum of money which the Appellant fraudulently intended to permanently deprive PW1 of was N3,408,000.00. The Appellant was not misled or confused. It was the same facts and evidence that was led in support of the offence of stealing, leading to his conviction. There was no miscarriage of justice in the Appellant’s conviction. See also Ogunade v AG of the Federation (1971) LPELR-2320(SC), The Nigerian Air Force v Kamaldeen (2007) LPELR-2010(SC). It cannot therefore be said that the Appellant was not informed of what he stole.

The case of Commissioner of Police v Agu (supra), relied on by the Appellant, which is a decision of the High Court of Imo State sitting in its appellate jurisdiction, is not at all applicable herein. The Appellant had argued that there was no need to have criminalized the delay in payment to PW1. The evidence adduced however demonstrated that this was not merely a business transaction gone sour but a complaint that deserved the attention of EFCC had arisen. Evidence of the Appellant’s fraudulent intent elevated it to criminal activity.

The petition to the police and subsequently, to EFCC, which ignited the prosecution of the Appellant were therefore in order. See Sections 6 and 7 of the EFCC Act, 2004. See also Ahmed v FRN (2009) LPELR-8895(CA); Akingbola v FRN (2012) LPELR-8402(CA). Elements of the offence of stealing were established by the Respondent by credible evidence against the Appellant, beyond reasonable doubt. Issue IV, as well as other issues formulated for determination, are therefore resolved against the Appellant. This appeal is completely without merit. It fails and is hereby dismissed.

The conviction and sentence of the Appellant by the lower Court in Count 1 of Charge No: ID/6590C/2019 is hereby affirmed.

ABUBAKAR SADIQ UMAR, J.C.A.: My Lord and my learned brother, ONYEKACHI AJA OTISI, JCA granted me the privilege of reading before now the comprehensive leading judgment just delivered in this appeal. I entirely agree with the reasoning and conclusion.

The appeal is unmeritorious and deserves to be dismissed. I hereby dismiss the appeal and affirmed the conviction and sentence of the Appellant by the lower Court.

MUHAMMAD IBRAHIM SIRAJO, J.C.A.: I have read the draft of the judgment just delivered by my learned brother, Onyekachi Aja Otisi, JCA. I am in agreement with the reasoning and conclusions reached therein that the appeal is bereft of merit. I too dismiss the appeal and affirm the conviction and sentence passed on the Appellant by the lower Court.

Judgment

PETER OYINKENIMIEMI AFFEN, J.C.A. (Delivering the Leading Judgment): Introduction The Appellant [Francis Momoh] was arraigned on 8/11/2018 before the Lagos Division of the Federal High Court (“the lower Court”) alongside three co-defendants on a 45-count charge of conspiracy and money laundering in Charge No. FHC/L/238/2018: Federal Republic of Nigeria v Engr. Tuoyo Omatsuli & 3 Ors, to which they all pleaded ‘not guilty’.

The charge was subsequently amended once and again in the course of trial: the extant one being the 2nd Amended 52-count charge (copied at pp. 1381-1406 in Volume II of the records); and the Appellant and his co-defendants, again, indicated a ‘not guilty’ plea on 7/7/2020. In a frantic bid to discharge the non-shifting burden of establishing guilt on the criminal threshold of proof beyond reasonable doubt, the Respondent (qua prosecution) fielded 16 of the 19 witnesses listed in the proof of evidence, and tendered Exhibits ETO1–ETO34.

At the close of the Respondent’s case, the Appellant and two of his co-defendants (i.e. Don Parker Properties Ltd and Building Associates Limited) jointly made a submission of no-case-to-answer. Engr. Tuoyo Omatsuli [1st Defendant] did likewise. In a ruling delivered on 11/11/2020 (which lies at pp. 1752–1755 in Vol. III of the records), his Lordship, Saliu Saidu, J. upheld the 1st Defendant’s no-case submission and discharged him, but dismissed the joint no-case submission presented by the Appellant and other defendants and ordered them to enter upon their defence.

This present appeal, commenced by a Notice of Appeal dated and filed on 2/11/21 but deemed properly filed on 9/11/21, is an expression of the Appellant’s discontent with the part of the ruling overruling their joint no-case submission. As enjoined by the Rules of this Court, the parties filed and exchanged briefs of arguments. The Appellant’s Brief was deemed properly filed on 9/11/21, whilst the Respondent’s Amended Brief and the Appellant’s Reply Brief were deemed properly filed on 20/1/22. This appeal was heard on 20/1/22.

Issues for determination Whereas a lone issue for determination is distilled in the Respondent’s Brief, namely: “Whether from the evidence adduced by the 1st Respondent (sic) at the lower Court, the learned trial Judge was not right in holding that the Appellant had a case to answer and thereby ordered it to open its defence”, the three issues identified in the Appellant’s Brief as follows: (a) Whether the lower Court was right, from the state of evidence before the Court, to have held that with regards to the Appellant, a prima facie case has been established against it that will require it to enter its defence? (b) Whether the evidence led against the Appellant and the 4th Respondent (sic) cannot be severed for being inextricably interwoven such that a discharge of one must as a matter of law affect the others? (c) Whether the lower Court’s insistence that the Appellant enter its defence despite the paucity of evidence adduced by the 1st Respondent (sic) does not amount to asking the Appellant to establish his innocence contrary to the adversarial system of administration of justice as enshrined in the Constitution of the Federal Republic of Nigeria, 1999 (as amended)?

Upon careful and insightful consideration to the issues identified by the parties as reproduced above, it seems to me that the Respondent’s lone issue encompasses and subsumes the Appellant’s three issues. What is at issue in the instant appeal is the propriety of the lower Court’s dismissal of the Appellant’s no-case submission and calling upon him to enter a defence in light of the testimonial and documentary evidence presented by the Respondent (prosecution).

Thus, notwithstanding that the Appellant is the proponent of this appeal, I propose to determine the same on the basis of the Respondent’s lone issue.

Appellant’s submission The Appellant referred to Ss. 392 and 303 of the Administration of Criminal Justice Act (ACJA) and submitted that the lower Court erred in holding that a prima facie case has been established against him alongside the 2nd and 4th co-defendants, insisting that the evidence put forward by the Respondent, having been thoroughly discredited under cross-examination, was so manifestly unreliable to secure conviction and the burden of establishing a prima facie case at that stage of the trial was not discharged; and that upon a cursory appraisal of the particulars of offences alleged in Counts 1-52 of the 2nd Amended Charge, the relevant statutes and the evidence adduced by the Respondent in proof of each count, the lower Court ought not to have called upon him to open its defence.

He referred to the definition of “proceeds” in S. 25 MLPA and contended (based on his appreciation of the testimonial evidence of PW1, PW4, PW11, PW13 and PW15 under cross-examination) that the funds and property or valuables in issue cannot be said to be proceeds of corruption and gratification or other unlawful activity.

The Appellant harped on evidence led by prosecution witnesses to the effect that: (i) the contract to recover statutory payments due to NDDC from oil companies was duly awarded to Starline Consultancy Services Ltd by NDDC; (ii) payments made by NDDC to Starline Consultancy Services Ltd in respect thereof were not proceeds of crime; and (iii) that moneys meant for Niger Delta Youths which was paid by Starline Consultancy Services Ltd into various accounts were not meant to bribe any NDDC official to release payments due under the contract.

He maintained that the evidence of PW6, PW7, PW8, PW10, PW12 and PW14 confirmed that properties listed in the charge were not acquired from unlawful sources, thus it is not for the sellers to establish the legality of the transaction, citing EFCC v THOMAS (2018) LPELR-45547(CA) at 24-35 –per Nimpar, JCA.

The Appellant contended that money laundering cannot stand on its own without an illegal source/activity that constitutes a predicate offence: DAUDU v FRN (2018) LPELR-43637(SC); that the Respondent sought to establish that funds in the various accounts in the respective banks were proceeds of unlawful activity by calling PW2, PW3, PW5 and PW9 (who are bankers) but failed to substantiate these allegations as the said witnesses admitted that the accounts were not flagged notwithstanding that the funds exceeded statutory limit because they lodged a report with EFCC which conducted enquiry thereon and found that the source of the funds from NDDC was not unlawful.

The Appellant further contended that the Respondent failed to adduce cogent, compelling, and conclusive circumstantial evidence to establish the elements of conspiracy, calling in aid ONYEYE v STATE [2012] 15 NWLR (PT. 1324) 586, STATE v SALAWU (2011) LPELR-8252(SC), LORI v STATE (1980) 8-11 SC 86 and LEYE ADEJUYIGBE v FEDERAL REPUBLIC OF NIGERIA (2017) LPELR-43801 (CA). The Appellant equally underscored the separate and distinct personality of a company from its proprietors, directors or human agents as enunciated in SALOMON v SALOMON (1897) AC 22 and ROYAL PETROLEUM CO.

LTD v FIRST BANK OF NIGERIA LTD [1997] 6 NWLR (PT. 510) 584 and maintained that S. 25 MLPA makes it clear that neither the Appellant nor the 2nd and 4th Respondents are Designated Non-Financial Institutions (DNFIs) required to submit reports to the Federal Ministry of Industry, Trade and Investment, especially as they were not invited/questioned and no investigation was conducted, placing reliance on S. 36(4) CFRN, S. 20(1) NFIU Act 2018 and the case of GYANG & ANOR v COP, LAGOS STATE & ORS (2013) LPELR-21893(SC) at 12-13 and insisting that the testimonial evidence of PW16 and Exhibits ETO 25A/ETO 25B reveal that no notice of non-compliance was served on Building Associates Ltd and Don Parker Properties Ltd, nor reference made to Federal Ministry of Industry Trade and Investment.

He argued that the NFIU is the appropriate authority to enquire into non-compliance by a DNFI under the NFIU Act, as such the power hitherto vested on EFCC under S. 10(1) MPLA is spent; that the Respondent failed to establish the actus reus or mens rea (or both) of the alleged offences, citing FAWEHINMI v IGP (2002) LPELR-1258(SC) (on the illegality of arresting a suspect without sufficient evidence upon which to charge him/her); DIAMOND BANK PLC v HRH EZE DR.

PETER OPARA (2018) LPELR-43907 (SC) at 27, OTERI & ORS v OKORODUDU & ANOR (1970) ALL NLR 199 and OGUNDELE & ANOR v AGIRI & ANOR (2009) LPELR-2328 (SC) at 36 (on the proposition that suspicion however great, grave or strong, goes to no issue); that where two or more persons are jointly charged and the evidence adduced is inextricably woven around all of them as in the instant case, the discharge of one (or some) for want of convicting evidence automatically affects all others since the evidence is tied together like Siamese twins at the umbilical cord with their mother, citing CHIEF EMMANUEL EBRI v THE STATE (2004) 11 NWLR (PT. 885) 589 at 604 –per Niki Tobi, JSC; that since all the alleged unlawful transactions are tied to alleged involvement of Engr Tuoyo Omatsuli [1st Defendant] in unlawful activities whilst being a public officer, his discharge dislodges the charges against the Appellant, insisting that one cannot put something on nothing, it will collapse: UAC v MCFOY (1962) A.C.152; and that the 1st Defendant’s discharge shows that the prosecution’s case is manifestly unreliable such that no reasonable Court could safely convict the Appellant, citing OKORO v.

STATE (2012) LPELR-7846 (SC). The Appellant reiterated that the alleged illicit origin of funds (which is the fulcrum of the charges preferred against the Appellant) is unsustainable since all the transactions alleged to be unlawful activities are connected to the 1st Defendant already discharged by the lower Court on the basis of evidence that is intricately intertwined and cannot be severed. The case of OGUNBODEDE v FRN (2018) LPELR-44883(CA) at 39–41 was referred to.

He submitted that his right to fair hearing enshrined in S. 36 (1) CFRN was undermined when the lower Court overruled his no-case submission notwithstanding the paucity of evidence, insisting that there is no obligation on an accused to establish his innocence under our accusatorial criminal justice system wherein doubts are resolved against the prosecution, citing IGABELE v THE STATE (2006) 6 NWLR (PT. 975) 100 at 127, MUMUNI v THE STATE (1975) 6 S.C. 79 and FRN v KAYODE BECKLEY [2020] 16 NWLR (PT 1750) 219 at 257-258.

He equally cited JIM-JAJA v C.O.P. [2011] 2 NWLR (PT. 1231) 375 at 393, USMAN v THE EXECUTIVE CHAIRMAN, EFCC (2018) LPELR-44678(CA) OSADIM v TAWO (2009) LPELR-8209(CA), OKWUDIBA & ORS v NWANKWO & ORS (2018) LPELR-46074(CA) pp. 35-37 WILLOUGHBY v INTERNATIONAL MERCHANT BANK [1987] 1 NWLR 105 at 132 in urging this Court to allow the appeal, set aside the part of the ruling of the lower Court overruling the no-case submission, and discharge and acquit him accordingly.

Respondent’s submission The Respondent contends that credible evidence (which was neither discredited nor found unreliable) was adduced in proof of the essential elements of the offences charged under the Money Laundering (Prohibition) Act, 2011 (“MLPA”) and the lower Court rightly dismissed the joint no-case submission presented by the Appellant and two co-defendants. The Respondent restated the principles governing no-case submission in S. 302 of the Administration of Criminal Justice Act, 2015 (“ACJA”), and cited a host of decided cases including, notably, DABOH & ANOR v.

STATE (1977) 5 SC 197 at 209 –per Udo-Udoma, JSC and AJULUCHUKWU v STATE [2014] ALL FWLR (PT. 749) 1015 on what the Court looks out for when grappling with a no-case submission.

The Respondent maintained that the definition of “unlawful act” in S. 15(6) MLPA reveals an all-crime approach to the offence of money laundering under S.15(1), (2) and (3) thereof, which covers proceeds (whether directly or indirectly) from any criminal act under any law in Nigeria, otherwise known as predicate offences, citing FRN v YAHAYA (2015) LPELR-24269(CA) and S. 25 MLPA, and insisting that it is immaterial who launders the money: the perpetrator of the predicate offence, his agent, nominee, associate or any other person can be guilty of laundering the proceeds of crime vide OGUNBODEDE v FRN (2018) LPELR-44883(CA).

Guided by the cases ofDAUDU v FRN [2018] 10 NWLR (PT. 1626) 169, FRN v ADAMU (2018) LPELR-46024 (CA) and KALU v FRN (2012) LPELR 9287 (CA) andBASHIR v FRN (2016) LPELR-40252(CA), the Respondent examined the ingredients of the offences with which the Appellant is charged in Counts 1, 17, 19, 21, 24, 25, 26, 27, 28 and 29, as well as summarised the testimonial evidence of PW4, PW11, PW1, PW2, PW3, PW5, PW13 and PW15;

and contended that the evidence adduced disclosed that the huge payments made by Starline Consultancy Services Ltd to the 1st Defendant through proxies (including, notably, Building Associates Ltd of which the Appellant is the managing director) were directly or indirectly proceeds of official corruption and gratification, which proceeds were used to acquire and/or transfer various landed property situate at Lekki Peninsula, Eti-Osa, Lagos as shown in Exhibits ETO 12, ETO 18 and ETO 22;

that there is also clear evidence that the Appellant and his co-defendants transformed funds that are proceeds of unlawful activity into property as well as disguised the illicit origin of the payments made by Starline Consultancy Services Ltd into the account of Building Associates Ltd as “appreciation” by applying the said funds to purchase property.

The further submission of the Respondent is that the evidence adduced and exhibits tendered clinically show that the sum of N3.645 billion paid by Starline Consultancy Services into the account of Building Associates Ltd (of which the Appellant is the managing director), which account was nominated by Engr.

Tuoyo Omatsuli (1st Defendant), constitutes proceeds of corruption and gratification; and that since the funds received by Building Associates Ltd were largely transferred and utilised for the benefit of the Engr Tuoyo Omatsuli and his company [Don Parker Properties Ltd], the lower Court was right in dismissing the no-case submission in relation to the Appellant and two co-defendants.

The Respondent insisted that the Appellant is the alter ego of Building Associates Limited, which is a Designated Non-Financial Institution (DFNI) under and by virtue of the 2013 Regulations issued by the Minister of Industry, Trade and Investment (ETO 34) pursuant to the MLPA [which has the force of law and can be taken judicial notice of by the Court vide EJEGI v C. O.

P. (1977) LPELR-1060(SC) and OGBOJA v ACCESS BANK PLC [2016] 2 NWLR (PT. 1496) 219 at 317- 318], that service of notice of default is not a precondition for preferring a criminal charge against a DNFI under the MLPA or any other law, hence no such law has been cited; that the Appellant’s contention that the operative law is not the MLPA 2011 but the NFIU Act 2018 which enjoins DNFIs to make declarations to the NFIU and not EFCC misconceives the legal effect of repeal of an enactment, insisting that any right accrued or liability incurred under a repealed enactment, including the right of the State to prosecute offences committed under a repealed law remain unaffected.

Reference is made to S. 6(1) of the Interpretation Act, 2004 and the cases of BUKAR v QUEEN (1961) LPELR-24995(SC), NTOE ANDREW ANSA & ORS v REG.

TRUSTEES OF PRESBYTERIAN CHURCH OF NIGERIA (2007) LPELR 4636 (CA), WAGBATSOMA v FRN (2015) LPELR -24649(CA) and ONTARIO OIL & GAS NIG LTD v FRN (2015) LPELR-24651(CA) at p. 76; and that the position would have been different if it was a procedural (as opposed to a substantive) legislation that was in issue, in which case the operative law would be the enactment in force at the time the right or liability is being activated, citing ADIO v STATE (1986) LPELR-184(SC).

The Respondent pointed out that the Appellant alleged that there are contradictions in the evidence adduced by prosecution witnesses but failed to demonstrate same; that for inconsistency or contradiction in evidence of the prosecution to negatively affect its veracity, it must be materially significant to the extent that it has an overall negative impact on the prosecution’s case vide JOHN v STATE [2011] 18 NWLR (PT. 1278) 353 and STATE v AZEEZ & ORS (2008) 4 SC 188;

that whereas a piece of evidence is contradictory to another if it asserts or affirms the opposite of what the other asserts and not necessarily when there are some minor discrepancies in the details [see IKUEPENIKAN v STATE (2011) 1 NWLR (PP. 1229) 449 and AYO GABRIEL v STATE (1989) 12 SCNJ 33], the sketchy extracts from the testimonial evidence of PW1, PW4, PW11, PW13 and PW15 highlighted in Appellant’s brief do not constitute contradictions as no witness testified the opposite of what he earlier testified or what another witness testified;

that no amount of brilliance in the address of counsel can make up for dearth of evidence to prove, disprove or demolish facts in issue, calling in aid the cases of OSIGWE v NWIHIM [1995] 3 NWLR (PT. 386) 752 (CA) and ISHOLA v AJIBOYE [1998] 1 NWLR (PT. 532) 71 (CA).

The Respondent maintained that even though EFCC Office (like the police) is ordinarily not a Tribunal or Court where the principle of fair hearing in public is constitutionally obligatory as held in ONYUIKE v PEOPLE OF LAGOS STATE (2013) LPELR-24809(CA) at 26-29, the Appellant’s rights were not breached: he was interviewed and made extra-judicial statements that were tendered as exhibits at the trial; that the essence of a charge is to give notice of allegation against an accused person and counts in a charge do not offend fair hearing, insisting that the charge was read to the Appellant who entered a plea and prosecution witnesses were duly cross-examined and a no-case submission was raised, etc., before the Court called upon the Appellant to enter upon his defence.

The Respondent contended that it is fallacious to argue that once an accused person in a joint trial is acquitted, his co-accused must also be acquitted, citing IKEMSON v STATE [1989] 3 NWLR (PT. 110) 455 at 480 and IDIOK v STATE [2008] 13 NWLR (PT. 1104) 225, and insisting that the 1st Defendant’s acquittal was erroneous in the first place and it behoves this Court to correct it.

The Respondent commended the case of OGUNBODEDE v FRN (2018) LPELR-44883 (CA) and maintained that the Appellant failed to demonstrate how the findings of the learned trial Judge was wrong as it relates to him nor did he show that prosecution witnesses were discredited or rendered unreliable in any manner or that the evidence led did not link it to the offences charged. The Respondent further reacted to the Appellant’s specific submissions and urged this Court to dismiss the appeal.

Resolution of Appeal It is merely restating the obvious that our adversary criminal justice system is accusatorial in nature and substance, and every person charged with a criminal offence is presumed innocent until he is proved guilty. See Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). A necessary corollary of the presumption of innocence is that in a criminal trial such as the present, the burden is always on the prosecution to establish the guilt of the accused person beyond reasonable doubt.

Quite unlike civil proceedings, this burden on the prosecution is static in a manner akin to the fabled constancy of the ‘Northern Star’ and never shifts to the accused. It is if, and only if, the prosecution succeeds in proving the commission of a crime beyond reasonable doubt that the burden shifts to the accused to establish that reasonable doubt exists. See Ss. 135 and 137 of the Evidence Act, 2011. The Prosecution has the onus of proving all the material ingredients of the offence(s) charged beyond reasonable doubt. See STATE v SADU [2001] 33 WRN 21 at 40.

Where the prosecution fails so to do, the charge is not made out and the Court is bound to record a verdict discharging and acquitting the accused. See MAJEKODUNMI v THE NIGERIAN ARMY [2002] 31 WRN 138 at 147. Also, if on the totality of the evidence adduced, the Court were left in a state of doubt or uncertainty, the prosecution would have failed to discharge the onus of proof cast upon it by law and the accused would be entitled to an acquittal. See UKPE v STATE [2001] 18 WRN 84 at 105.

However, proof beyond reasonable doubt does not mean proof beyond all shadow of doubt, but such proof as would reasonably and/or irresistibly lead to the inference that the accused committed the offence. See AKINYEMI v STATE [1999] 6 NWLR (PT 607) 449, ONI v STATE [2003] 31 WRN 104 at 122 and MILLER v MINISTER OF PENSION (1947) 2 ALL ER 372 at 373. For present purposes however, we are not grappling with whether the guilt of the accused person was been established on the criminal threshold of proof beyond reasonable doubt.

As stated hereinbefore, this present appeal is an offshoot of the lower Court’s ruling on a no-case submission by the Appellant and two co-defendants. It is well settled that in considering a plea of no-case-to-answer at the close of the prosecution’s case, the Court is not required to enquire into the guilt or otherwise of the accused person per se by undertaking a comprehensive evaluation of evidence adduced thus far. Rather, the Court is preoccupied with ascertaining whether a prima facie case was made out to warrant calling upon the accused person to enter upon his defence.

The decision should depend not so much on whether the adjudicating tribunal would at this stage convict or acquit the accused, but whether the evidence adduced is such that a reasonable Tribunal could convict on it. See ATANO v ATTORNEY-GENERAL BENDEL [1988] 2 NWLR (PT. 75) 201. In different words, what the trial Court seeks to ascertain at this stage is whether on the face of the evidence adduced thus far by the prosecution upon whom the non-shifting burden of proof lies, there is a ground for proceeding with the trial in that there is something worth looking at.

Generally, there is ground for proceeding where the evidence before the Court is such that if uncontradicted and if believed will be sufficient to prove the case against the accused person. See DURU v NWOSU [1989] 1 NWLR (PT. 113) 24 –per Nnamani, JSC FIDELIS UBANATU v C. O. P. [2000] 2 NWLR (PT. 643) 115 and IKUFORIJI v F. R. N. [2018] LPELR-43884(SC) at 20-21.

The chief rationale behind a no-case submission is that the accused person [who is presumed innocent until proved guilty] should not be saddled with the burden of defending himself when there is no evidence upon which a trial Court could validly convict.

In the leading case of IBEZIAKO v COMMISSIONER OF POLICE (1963) 1 ALL NLR 61 at 67-68, the Supreme Court (per Adetokunbo Ademola, CJF) referred to the Practice Note issued by Parker, LCJ (reported in [1962] 1 All E.R. 448) and held that a no-case submission may properly be made and upheld when: (a) there has been no evidence to prove an essential element in the alleged offence; and (b) the evidence adduced by the prosecution has been so discredited as a result of cross-examination, or it is so manifestly unreliable that no reasonable Tribunal could safely convict on it.

See also FIDELIS UBANATU v C. O. P. supra at 136 –per Kalgo, JSC, STATE v AUDU (1972) 6 SC 28, ONAGORUWA v STATE [1993] 7 NWLR (PT. 303) 49 and AGBO v THE STATE (2013) LPELR-20388 (SC) amongst a host of other cases. These requirements have now been codified in S. 303 (3) (a)–(d) of the Administration of Criminal Justice Act, 2015 (hereinafter “ACJA”).

In considering whether or not there is prima facie case against a defendant, the trial Court is bound to confine itself severely to the evidence adduced in Court [see MOHAMMED v STATE [2007] 7 NWLR (PT. 1032) 152 (SC)], and the case of DABOH & ANOR v. STATE (1977) 5 SC 197 at 209 –per Udo-Udoma, JSC donates the proposition that the case ought to proceed for the accused to explain his own side once there is evidence however slight linking him with the offence charged.

At pp. 1754-755 in Volume III of the records, the lower ruled thus: “I have gone through all the Count contained in the Charge against the Defendants in this case and I am satisfy (sic) that the Prosecution has not been able to prove elements of the offences ‘charged against the 1st Defendant to enable this Court call on him to enter his defence, I hereby discharge the 1st Defendant in this case. While, with regards to the 2nd, 3rd and 4th Defendants, I am satisfy (sic) that prima facie case has been established against them that will require them to enter their defence.

This is the ruling of the Court.” What can readily be gleaned from the foregoing is that the lower Court did not proffer any reason(s) for discharging the 1st Defendant and ordering the Appellant and two co-defendants to enter upon their defence. Since the Appellant was charged jointly with his co-defendants in some of the counts, the basis for treating the Appellant and two co-defendants differently from the 1st Defendant is difficult to think through. All four defendants are charged jointly in Counts 1, 23, 24 and 25.

Engr Tuoyo Omatsuli [1st Defendant] is charged alone in Counts 2, 34, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45 and 46, and jointly with Don Parker Properties Ltd (2nd Defendant) in Counts 17, 19, 21, 27, 28, 29, 47 and 48. Engr Tuoyo Omatsuli, Don Parker Properties Ltd and Francis Momoh (3rd Defendant/Appellant) are jointly charged in Count 26; whilst Francis Momoh is charged alone in Count 49, and jointly with Building Associates Ltd (4th Defendant) in Counts 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 18, 20, 22, 30, 31, 32, 33, 35, 50, 51 and 52.

Given this state of affairs, I reckon that the lower Court ought to have explained why the 1st Defendant was discharged whilst the Appellant and others were ordered to open their defence in light of intricately interwoven evidence led by the prosecution against all of them. Giving reasons for deciding one way or another is an essential, if not indispensable, attribute of judicial decision-making. An unexplained decision (such as the ruling appealed against) is a portrait of arbitrary or whimsical exercise of judicial power. It ought not to be so!

It is forcefully agitated on behalf of the Appellant that the alleged illicit origin of funds (which is the fulcrum of the charge against it) is unsustainable since all the transactions alleged to be unlawful activities are connected to the 1st Defendant already discharged by the lower Court. However, save for Counts 27, 28 and 29 of the 2nd Amended Charge bordering on the running and management of private business other than farming as a public officer, the part of the ruling of the lower Court embodying the discharge of the 1st Defendant [Engr.

Tuoyo Omatsuli] has already been set aside in Appeal No. CA/L/1190/2020: FRN v Engr. Tuoyo Omatsuli (the judgment of which was delivered earlier today), wherein this Court held thusly: “19.

It is forcefully agitated on behalf of the Respondent that the charge of money laundering cannot fly in the absence of proof of any predicate offence since the testimony of prosecution witnesses (notably PW4, PW11, PW13 and PW15) is that moneys paid to Starline Consultancy Services Ltd by NDDC was not proceeds of crime, and that the money meant for Niger Delta Youths which was paid into various accounts by Starline Consultancy Services Ltd was also not “bribe” and therefore not proceeds of unlawful act under the MLPA.

This argument appears quite attractive at first blush but does not bear close scrutiny.

The very fact alone that the evidence adduced reveals that, based on discussions between the Respondent and the Executive Director of Finance and Administration (PW15), Starline Consultancy Services Ltd (which is a contractor with NDDC) was requested to pay, and actually paid, huge sums of moneys totalling N3.645b over a period of two years into the account of Building Associates Ltd (4th defendant) nominated by the Respondent (who was NDDC’s Executive Director Projects at the material time) as “appreciation” to members of Board of NDDC (allegedly to cushion the effect of reaching out to Niger Delta Youths) each time NDDC makes payment to Starline Consultancy Services Ltd, points compellingly to a prima facie case linking the Respondent to the unlawful activities alleged in the 2nd Amended Charge for which some explanation is required from him.

The PW11 (who is an employee of NDDC) testified that the Respondent was a signatory to the accounts of NDDC in his capacity as Executive Director of Projects, and some of the approvals for payments to Starline Consultancy Services Ltd signed by him are contained in Exhibit ETO 21. 20. It occurs to me that “appreciation” is ordinarily a gift or other benefit given out of one’s volition or free will: it is not usually requested for by persons (such as the Respondent and PW15) who are in a position to approve payments due to the appreciator, who happens to be a contractor with NDDC.

Also, how funds allegedly meant for Niger Delta Youths ended up being associated with the acquisition of choice property situate in Lekki Peninsula, Lagos as alleged in the 2nd amended charge calls for some explanation.

This is necessarily so because a public officer (such as the Respondent) is not at liberty to receive any property, gift, favour or benefit of any kind in the discharge of official duties or in relation to any matter connected with the functions, affairs or business of a government department, corporate body, organisation or institution in which he/she is serving; and unless the contrary is proved, a presumption of criminality attends the receipt of any such property, benefit or promise by a public officer or some other person at his instance. See Ss. 8, 17 and 19 of the ICPC Act.

As pointed out by learned counsel for the Appellant, the question of whether or not the payments made by Starline Consultancy Services Ltd as aforesaid constitute “bribe” or other unlawful activity under any law as defined in S. 15(6) MLPA is not an inference to be made by a witness of fact such as PW4: it is a conclusion only a Court of law can reach at the end of the case. See A-G, FEDERATION v OGUNRO [2001] 10 NWLR (PT. 720) 175 at 184. 21.

It bears emphasising that the tenor of S. 15 MLPA is broad based: it adopts an all-crime approach to the offence of money laundering; and the prosecution may rely on any conduct that constitutes an unlawful act (crime) under any law in Nigeria as a predicate offence.

Also, criminal liability is personal and non-transferable, and the mere fact that other members of the NDDC Board who may have benefited from the “appreciation” extended by Starline Consultancy Services Ltd have not been (or are not being) charged alongside the Respondent does not constitute a defence at law, and certainly not a valid basis for discharge and acquittal. See AKPA v THE STATE supra. It therefore seems to me that there was a clear basis for proceeding with the case, and the lower Court ought not to have discharged the Respondent upon a no-case submission.

Especially is this so when the lower Court held on the basis of the same piece(s) of interwoven evidence that other defendants jointly charged with him in several counts have a case to answer. The law enjoins the lower Court to call on the accused to explain his own side once there is evidence linking him with the offence charged however slight, as in this case.

See DABOH & ANOR v STATE supra.” As stated hereinbefore, all four defendants are charged jointly in Counts 1, 23, 24 and 25, whilst the Appellant is charged alone in Count 49, and jointly with Building Associates Limited (4th Defendant) in Counts 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 18, 20, 22, 30, 31, 32, 33, 35, 50, 51 and 52. He is also charged along with the 1st and 2nd Defendants in Count 26. Binding case law emphasises the inappropriateness of embarking on a detailed evaluation of the evidence adduced by the prosecution at the stage of no-case submission.

See AJIBOYE v THE STATE [1995] 8 NWLR (PT. 414) 408 at 416. The proposition that ‘a ruling on a no-case submission should be as brief as possible’ therefore holds good when the Court is of the opinion that the submission is not well-founded and ought to be overruled, as in the instant case. The rationale is to prevent the Court from falling into the temptation of evaluating the evidence and predetermining the credibility of witnesses, making remarks or observations on the facts in order not to fetter its discretion [see UBANATU v C. O.

P. supra and OMISORE v THE STATE (2005) VOL. 1 Q.C.C.R. 148 at 143], or generally “entering effectively into and even deciding the merits of a case, which full course was yet to run”. See EGHAREVBA v F. R. N. (2016) LPELR-40045(SC). Since the lower Court overruled the joint no-case submission of the Appellant and others but upheld that of the 1st Defendant, and this Court has already held in Appeal No. CA/L/CR/1190A/2020 that the lower Court erred in discharging the 1st Defendant [Engr.

Tuoyo Omatsuli] at the stage of no-case submission, it certainly would be ill-advised to embark upon a detailed examination of the evidence adduced by the prosecution and/or undertake a rigorous analysis of the copious arguments canvassed by counsel on both sides of the divide, which create the erroneous impression that we are here confronted with whether the Appellant’s guilt has been established at this stage.

It therefore seems to me that the arguments forcefully pressed by counsel, including the contention that the Appellant is not a DNFI and the Respondent’s insistence to the contrary, are substantive matters reserved for the trial Court to resolve at the trial. It bears reiterating that the Court’s preoccupation at this stage is not whether the evidence adduced is sufficient to establish guilt, but merely to ascertain whether the prosecution adduced evidence linking the Appellant to the offences alleged, however slight that may be. See DABOH & ANOR v STATE supra.

After judgment was reserved in this appeal, the Respondent forwarded two recent decisions of this Court in CA/LAG/CV/256/2019: FRANCIS MOMOH & ANOR v EFCC & 4 ORS and CA/LAG/CV/608/2019: WESTFIELD ENERGY RESOURCES LTD & 3 ORS v EFCC (both delivered on 15/12/21) affirming the civil (non-conviction based) forfeiture of some property alleged to be proceeds of unlawful activity in the present appeal. The Appellant was quick to point out that steps have already been taken to appeal the said decisions, which cannot be said to have finally determined the rights of the parties.

On its part, the Appellant equally forwarded two foreign decisions on civil forfeiture proceedings, viz: (i) UNITED STATES v FUNDS IN THE AMOUNT OF $239 400, 795 F.3d 639 (7th Cir. 2015), and (ii)U.S. v LIQUIDATORS OF EUROPEAN 630 F.3d 1139 (9th Cir. 2011) as persuasive authority. I do not consider the additional authorities forwarded by both parties particularly helpful in determining the instant interlocutory appeal against the dismissal of the no-case submission presented by the Appellant and two co-defendants.

This Court will not suffer itself to be inveigled or seduced by these additional authorities into making pronouncements that will prejudge the substance of charges still pending before the lower Court.

Conclusion This appeal is bereft of merit and ought to be dismissed. I so order. The part of the ruling of the lower Court dated 11/11/2020 dismissing the no-case submission is affirmed, and the Appellant (Francis Momoh) shall enter upon his defence accordingly.

OBANDE FESTUS OGBUINYA, J.C.A.: I had the singular privilege to peruse, in advance, the elegant leading judgment delivered by my learned brother: Peter O. Affen, JCA. I am in full agreement with the judicial reasoning and conclusion in it. I, too, penalise the appeal with a deserved dismissal. I abide by the consequential orders decreed in the leading judgment.

MUHAMMAD IBRAHIM SIRAJO, J.C.A.: The leading judgment in this appeal, prepared by my learned brother, PETER OYINKENIMIEMI AFFEN, JCA, a draft copy of which made available to me before now, has exhaustively dealt with the lone issue formulated by the Respondent for the determination of the appeal. The issue was so comprehensively covered that any attempt to discuss it further will amount to repetition of the content of the leading judgment. I do not intend to embark on that repetitious exercise.

My duty here is to express my total concurrence with the lead judgment which dismissed the appeal and ordered the Appellant, Francis Momoh, to enter his defence, with nothing more to add. There is no scintilla of merit in this appeal. I also dismiss it without much ado.

Judgment

RITA NOSAKHARE PEMU, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the High Court of Justice, Aba Judicial Division delivered on the 8th day of March, 2021 in Charge No: A/29C/2020 but substituted with A/84c/2020. SYNOPSIS OF FACTS The Appellant and one other were charged for the offences of conspiracy, kidnapping and unlawful possession of offensive weapons, and were arraigned before a High Court sitting in Aba. They pleaded not guilty to the charge. On the 2nd of November, 2020, a fresh information with a three count charge was filed.

The defendant pleaded not guilty to the charges of kidnapping and unlawful possession of offensive weapons. The prosecution called his witnesses PW1 and PW2 respectively.

In the cause of prosecuting the case and as PW2, Inspector Anthony Samuel of the Nigeria Police Force with the Inspector General of Police, Intelligence Response Team, Force Headquarters Abuja, testified on the 30th of November, 2020, the prosecutor sought to tender through the witness, the confessional statement of the Defendants. ​Learned counsel for the Appellant objected on the ground that the said statement were not obtained voluntarily.

This is because their counsel was not present during the making of the said statement and that the defendants were not videotaped in the cause of making the statement. The Defence counsel argued that the Practice Direction issued by the Chief Judge of Abia State made on the 3rd day of June, 2020, which directed that evidence in trial within trial should be taken alongside the substantive case, and in the address of counsel, while ruling will be taken at the time of judgment for speedy dispensation of criminal justice was unconstitutional and contrary to the provisions of the Evidence Act, 2011.

The prosecution responded that the absence of video or a lawyer while making statements does not affect admissibility and that the Chief Judge by virtue of the practice direction did not abolish trial within trial but rearranged it. The Court below in her ruling on the 8th day of March, 2021 stated that the issue before him was simply whether the extra-judicial statement made by the Defendant could be admitted in evidence, and not the legality or otherwise of the Chief Judge’s Practice direction.

The Court below admitted the confessional statement; and reserved ruling on the probative value to the time of judgment. The trial Court in her ruling also refused to accept the invitation to state a case for the Court of Appeal as raised by the counsel to the Appellant. The Appellant, is dissatisfied with the ruling of the Court below and appealed same. Pursuant to the Practice Direction of this Honourable Court, the Appellant filed a Notice of Appeal on the 18th of March, 2021 with five (5) grounds of Appeal pages 59–64 of the Record of Appeal.

The Appellant filed his brief of argument on the 8th of July, 2021. It is settled by David Onyeike, Esq. The Respondent filed his brief of argument on the 26th of January, 2022, but was deemed filed on the 27th of January, 2022. It is settled by Chief Uche Ihediwa SAN. The Appellant’s Reply Brief was filed on the 21st of February, 2022, but deemed filed on the 24th of February, 2022. On the 24th day of February, 2022 the parties adopted their respective briefs of argument.

The Appellants distilled five (5) issues for determination viz: “1. whether the learned trial Judge erred in admitting the Appellant’s confessional statement without trial within trial (Ground 1). 2. Whether the Chief Judge of Abia State has the power to enact a law on trial within trial being an issue of evidence, within the framework of the 1999 Constitution on the Federal Republic of Nigeria (Ground 2). 3.

Whether the learned trial Judge was right to admit the confessional statement of the Appellant without inquiring into whether or not whether the alleged confessional statement was obtained in compliance with Section 27(2) of the Abia State Administration of Criminal Justice Law 2017 (Ground 3). 4. Whether the trial Judge was right to hold that the Abia State Practice Direction dated 3rd June, 2020 made by the Chief Judge of Abia State cannot be challenged in these proceedings but by a separate suit filed against the Attorney-General. (Ground 4.) 5.

Whether the learned trial Judge was right to refuse to refer the question of the propriety of enactment of the Practice Direction made by the Chief Judge to the Court of Appeal for determination. ​The Respondent distilled five (5) issues for determination viz:

“1. Whether the learned trial Judge was right to reserve ruling on the voluntariness of the Appellant’s confessional statement till the time of delivery of judgment. 2. Whether the Chief Judge of Abia State can validly issue Practice Direction relating to the conduct of Criminal Trials in the High Court of Abia State. 3. Whether the learned trial Judge was right to admit the confessional statement of the Appellant without inquiring into whether or not the alleged confessional statement was obtained in compliance with Section 27 (2) of the Abia State Administration of Criminal Justice Law. 4.

Whether the learned trial Judge was right to hold that the Abia State Practice Direction dated 3rd, June, 2020 made by the Chief Judge of Abia State can only be validly challenged in a suit where the Attorney-General of Abia State is a party. 5. Whether the learned trial Judge was right to refuse to refer the question of the competence of the Chief Judge of Abia State to issue the Practice Direction to the Court of Appeal for determination”. ​The Issues proffered by the Respondent are essentially on adoption of the issues proffered by the Appellant.

I shall therefore consider this appeal based on the Appellant’s issues for determination. ISSUE NO. 1 The Appellant submits that the Court refused the invitation by the Appellant to conduct a trial within trial to determine the admissibility of the confessional statement within the framework of Section 28 of the Evidence Act, 2011 citing STATE V. GAMBO (2019) 2 NWLR (Pt. 1655) 117, ADELANI V. THE STATE (2018) 5 NWLR (Pt. 1611) 18, LASE V. THE STATE (2018) 3 NWLR (Pt. 1607) 502; MUHAMMED V. THE STATE (2019) 6 NWLR (Pt. 1688) 203; ADEBANJO V. STATE (2019) 13 NWLR (Pt. 1688) 121.

Submits that the determination of the voluntaries of a confessional statement before its admission is a necessary concomitant of Sections 28 and 29 (1) and (2) of the Evidence Act, 2011- citing OGU V. C.O.P (2018) 8 NWLR (Pt. 1620) 134, 153–154. That it was wrong not to hold the trial within trial. ISSUE NO. 2: Submits the issue of trial within trial is an issue of evidence, the practice is dictated by the provisions of Sections 28 and 29 of the Evidence Act 2011. ​Submits that under the 1999 Constitution, evidence on the Exclusive legislative list is reserved for the National Assembly.

Therefore the State legislature or a functionary of a State Government cannot purport to legislate on a matter on the exclusive legislative list. That the sharing arrangement in our federalist system of government is operated through the Exclusive and concurrent list. Citing Section 4 (7) of the Constitution of the Federal Republic of Nigeria, He submits that by the arrangement therein a state functionary cannot veer into the domain of the National Assembly that therefore, any legislation or matters of evidence is reserved for the National Assembly.

The Chief Judge was therefore, wrong to have made a practice Direction in relation to matters of evidence. Submit that the Practice Direction is null and void. ISSUE NO. 3: Submits that by virtue of the provisions of Section 17 (2) of the Abia State Administration of Criminal Directive Law, 2017, the commencement date of the statute is 22nd December 2017. Submits that the statute commenced on the 22nd of December, 2017, therefore that the state was obliged to comply with the provisions of Section 27 (2) of the law in taking the statement of the 1st Defendant. But it did not do so in this case.

That in the absence of that, it was impossible to determine whether the prosecution complied with the law before the statement was obtained. Urges Court to hold that the confessional statement is prima facie inadmissible. He cites the case of CHARLES V. FRN (2018) 13 NWLR (Pt. 1635) 50 at 71. ISSUE NO. 4: Submits that rather for the Court below to rule on the objection that the Practice Direction is a necessary warrant for the Court to refuse to conduct trial within trial, the Court abdicated its judicial responsibility.

ISSUE NO. 5: Submits that once a party to the proceedings applies for reference of question of the propriety of an enactment to the Court of Appeal, the provisions of the law is that the Court shall refer the case as a matter of right – citing Section 295(2) of the Constitution of the Federal Republic of Nigeria 1999 (as amended). ​That the first question sought to be referred to the Court of Appeal has to do with the interpretation or application of the Constitution.

That in the instant case, the question which the Appellant relied on is that the Practice Direction made by the Chief Judge is unconstitutional. RESOLUTION From records, the Court below did not refuse to admit the Appellant’s confessional statement in trial within trial. That fact is misconceived. What the Court below did was to rely on the Practice Direction issued by the Chief Judge of the Abia State High Court. In the High Court, there is what is referred to as the “JUDGES RULES”, a procedural mode of verifying the voluntaries or otherwise of an accused confessional statement.

The purpose of the Practice Direction according to the Respondent is to expedite the trial of Criminal cases, by eliminating the delay occasioned in the proceedings, by stopping the substantive proceeding and conducting a trial within trial, when the Defendant raises objection to admissibility of a confessional statement on the ground that same was not obtained voluntarily. For purposes of elucidation, I hereby reproduce the relevant paragraph of the said Practice Direction.

Paragraph 3: 1 “where a defendant is desirous of objecting to the admissibility of a confessional statement in any criminal proceedings on the ground that same was not obtained voluntarily, it shall not later than 14 days after the service on him of the charge or information or at such later date as the Court may permit cause to be filed and served on the prosecution a notice as in Form 1 that he intends to object to the admissibility of the confessional statement in the course of the trial” Paragraph 4:3 has this to say: “The parties shall thereafter include legal argument with respect to the admissibility or otherwise of the confessional statement in their respective final addresses, and the Court shall on the final judgment in the matter, include its ruling or the admissibility or otherwise of the said confessional statement (underlined for emphasis).” It is my view that the “Judges Rules” and the conduct of trial within trial are just rules of practice not of law, and the Court can make rules in Practice Direction to regulate the conduct of trial within trial.

GBADAMOSI V. STATE (1992) 9 NWLR (Part 266) at 465. ELIYA AND ANOR. V. STATE (2020) LPELR 50318 (CA). Decidedly trial within trial procedure, (as earlier held in this judgment and at the expense of repetition) is not backed by any law, or statutory provisions nor is it rooted in the Evidence Act. It is only a relic carried over from the Common Law Criminal Justice System of Jury trials. The Court below was right to have opted to have its decision wait until the time for judgment to decide to admit or not to admit it.

The Court can at the time of writing judgment, even expunge a wrongly admitted evidence. This issue is resolved in favour of the Respondent and against the Appellant. ISSUE NO. 2: The answer to this, is that pursuant to the provision of Section 274 of the 1999 Constitution of the Federal Republic of Nigeria, the Chief Judge of a State is empowered to make Rules for regulating the Practice and Procedure of the High Court of a State. Having earlier held, that trial within trial is procedural, the Chief Judge of Abia State can make Practice Direction to regulate same.

The answer to the issue is in the affirmative. This issue is resolved in favour of the Respondent and against the Appellant. ISSUE NO. 3: The issue of whether the learned trial Judge was right to admit the confessional statement of the Appellant, without inquiring into whether or not the alleged confessional statement was obtained in compliance with Section 27(2) of the Abia State Administration of Criminal Justice Law, is another matter. The question is whether failure to do so would affect the admissibility of the statement. On issues of admissibility, RELEVANCE is the watchword.

I am of the view, that failure to comply with the provisions of the law does not affect the admissibility of the statement. As rightly argued by the Respondent, it is the Evidence Act that covers the admissibility of the confessional statement, and not any State Law. I am of the view, that the admissibility of confessional statement in Nigeria is governed by Sections 28 and 29 of the Evidence Act. The answer, to this issue, is in the affirmative. This issue is resolved in favour of the Respondent and against the Appellant.

ISSUE NO. 4: As earlier observed the Practice Direction is purely procedural. It is not a statutory provision. More so, the issue before the Court is not the legality or constitutionally of the Practice Direction. It therefore, cannot be challenged now. ​This issue is misconceived and same is resolved in favour of the Respondent and against the Appellant. ISSUE NO. 5: Decidedly there are conditions before a Court can refer a case to the Court of Appeal for determination.

These conditions are that: (a) The question must involve an interpretation or application of the constitution. (b) The question for reference must involve a substantive question of law, and it is the duty of the Court making the reference to be satisfied that the questions are indeed substantial. (c) The Court making the reference to the High Court must refrain from giving its opinion. (d) The question as to the interpretation or application of the constitution, must arise in the proceedings in the High Court in connection with an issue before the Court making the reference. AUDU V. A.G.

FEDERATION AND ANOR. (2012) LPELR–15527 (SC). From the above, it is clear that the discretionary power of the Court comes to play, if the Court is of the opinion that there is no substantial issue of law, there is no need stating a case to the Court of Appeal for determination. ​None of the four enumerated conditions obtained in this circumstances. This issue is therefore, misconceived and same is resolved in favour of the Respondent and against the Appellant. The appeal fails and same is hereby dismissed.

The ruling of the High Court of Abia State, Aba Division in Charge NO: A/84c/2020 delivered on the 8th of March 2021 is accordingly hereby affirmed.

OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A.: I have had a preview of the judgment of my learned brother, RITA NOSAKHARE PEMU, JCA, where issues leading to this appeal have been articulated. I agree with the reasoning and conclusions of my learned brother and also dismiss this appeal as lacking in merit. The ruling of the lower Court is accordingly affirmed.

IBRAHIM WAKILI JAURO, J.C.A.: I have read before now, the judgment in draft just delivered by my learned brother RITA N. PEMU, JCA (Presiding Justice). I agree entirely with his Lordship that the ruling of the lower Court cannot be faulted. The appeal is unmeritorious and must fail. It is hereby dismissed. I abide by the order for costs.

Judgment

HELEN MORONKEJI OGUNWUMIJU, J.S.C. (Delivering the Leading Judgment): Pursuant to the Extradition Act, Cap E25, Laws of the Federation of Nigeria 2004, the Honourable Attorney-General of the Federation and Minister of Justice, ABUBAKAR MALAMI, SAN by an application on the 14th May, 2018, signified to the trial Court, the Federal High Court, that a request was made to him by a Diplomatic representative of the Embassy of the United State of America, Abuja for the surrender of Princewill Ugonna Anuebunwa who is a subject of a two(2) count Court indictment in case No.

S6 16 Cr.575 (PAC) in the United States District, Southern District of New York, United States of America and filed on the 19th June, 2017 in the United States.

On 1/6/2020, the Federal High Court Coram Hon. Justice I.E. Ekwo had granted the application for extradition and ordered the surrender of the Respondent to the Attorney General of the Federation for onward surrender to the United States to answer for criminal charges in that country.

​The Respondent appealed against the order of extradition by notice of appeal filed on 10/6/2020. The Court of Appeal, Abuja Division Coram: Stephen Jonah Adah, Mohammed Baba Idris, and Mohammed Mustapha JJCA held by the majority decision of the Court of Appeal, delivered by M.B. Idris and Mohammed Mustapha JJCA with Stephen Jonah Adah JCA dissenting, that the trial Court did not appreciate the issues in controversy having failed to make findings of fact on the issues joined on the evidence which were material for reaching a just decision.

The Court of Appeal then ordered the case sent back to the trial Court for retrial and an order of accelerated hearing of the matter by the trial Court. Adah JCA dissenting upheld the decision of the trial Court. Hence this appeal by the Attorney General of the Federation. Notice of appeal filed on 18/01/2021 and cross-appeal filed on 7/10/2021.

The following facts led to this appeal. The Appellant herein, as Plaintiff at the trial Court, filed an application for the extradition of the Respondent to the United States of America (USA) to answer to an indictment in the District Court of Southern District of New York.

The application was supported by two affidavits deposed to by Stephen Fullington and Andrew K. Chan respectively, both of whom were stated to be operatives of the Federal Bureau of Investigation (FBI) in the USA. Also attached to the affidavit of Stephen Fullington were photographs generated from a computer in the custody of the deponents which were marked Exhibits D1-D4. The Appellant relied heavily on these affidavits to ground its application for the extradition of the Respondent to the (USA).

In response to the application, the Respondent (then in custody) filed a counter-affidavit deposed to by Chinenye Anuebunwa, his wife. The Respondent also filed a preliminary objection challenging the admissibility of various paragraphs of the affidavit of Stephen Fullington and exhibits attached thereto for not complying with Section 84 of the Evidence Act 2011.

The Respondent had contended in his counter-affidavit filed at the trial Court (at page 205 of the Record) that he is not the fugitive for whom a warrant of arrest was issued by the United States of America, thus raising a defence of mistaken identity, by stating, amongst other things, that he had never been to the USA and that he is not a black male with black hair and brown eyes as described in the extradition application.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

The Appellant appealed against the majority decision of the Court below on three grounds from which 3 (three) issues were formulated by Akutah Pius Ukeyima, Chief State Counsel. They are set out below: i. Whether the Justices of the Court of Appeal were right to have held that Section 84 of the Evidence Act, 2011 (as amended) must apply in relation to authentication/admissibility of foreign documents. (Grounds II) ii.

Whether the Court below was right to have concluded that the defence of mistaken identity raised by the Appellant (herein Respondent) was not satisfactorily rebutted by the Respondent (herein Appellant) in the circumstance and set aside the surrender order made by the trial judge. (Grounds III) iii. Whether the Court below was right when it refused to strike out issues 1 formulated by the Appellant (herein Respondent) for not arising from the ground (iv) of the grounds of appeal as canvassed. (Grounds 1).

The Respondent in the brief settled by Chikaosolu Ojukwu Esq identified three issues for determination as follows: 1. Whether the Court below was right in not striking out issue 1 as formulated by the Respondent as Appellant in the Court below? (Distilled from ground 1 of the Appellant’s Notice of Appeal) 2. Whether the Court below was right to have held that Section 84 of the Evidence Act, 2011 (as amended) applies to extradition proceedings? (Distilled from ground 2 of the Appellant’s Notice of Appeal) 3.

Whether the Court below was right to have concluded that the defence of mistaken identity raised by the Appellant (herein Respondent) was not satisfactorily rebutted by the Respondent (herein Appellant) in the circumstance and set aside the surrender made by the trial Judge? (Distilled from ground 3 of the Appellant’s Notice of Appeal).

At the hearing of the appeal in this Court, the Respondent raised a preliminary objection on certain grounds as stated below: a. AN ORDER of this Honourable Court striking out this appeal in its entirety for want of jurisdiction. OR IN THE ALTERNATIVE. b. AN ORDER of this Honourable Court striking out Ground 1 of the Notice of Appeal, same is incompetent. c. AN ORDER of this Honourable Court striking out Ground 2 of the Notice of Appeal, same being academic, argumentative, vague and conclusive. d.

AN ORDER of this Honourable Court striking out Ground 3 of the Notice of Appeal, same being a ground of mixed law and facts, for which no leave of Court was sought and obtained. e. AN ORDER striking out issue (i), (ii) and (iii) distilled from Grounds 1, 2 and 3 of the Appellant’s Notice of Appeal and all arguments connected thereto. f. AND FOR SUCH FURTHER or other Order(s) as this Honourable Court may deem fit to make in the circumstances of this Appeal.

The preliminary objections are predicated on the following grounds: 1. That the Extradition Treaty between the United States of America and Great Britain, signed at London, on 22nd December, 1931, which is the legal basis of the Applicant’s application for the Respondent’s extradition filed at the trial Court is not enforceable by or against any authority and/or person throughout the length and breadth of the Federal Republic of Nigeria. 2.

That by virtue of Section 12 of the 1999 Constitution (as amended), the trial High Court was not possessed of the requisite jurisdiction to either construe or apply the provisions of the Extradition Treaty between the United State of America and Great Britain, signed at London, on 22nd December, 1931 in this case, thereby rendering all the proceedings and judgments built on the unincorporated treaty a nullity. 3. That the service of the notice of appeal in this appeal is patently defective, thereby robbing this Honourable Court of the jurisdiction to entertain this appeal. 4.

That Ground 1 of the Notice of Appeal dated 18/01/2021 but filed on 19/1/2021 is incompetent, as it does not form part of the decision of the lower Court appealed against by the Appellant i.e. “part of the decision regarding the applicability of Section 84(4) of the Evidence Act, 2011 on the admissibility of annexures to an extradition package; propriety of the retrial order made by the Court of Appeal in the Appeal”. 5.

That Ground 1 is predicated on a finding raised suo motu in the minority judgment of the Court of Appeal which is in favour of the Appellant, as the Appellant did not challenge the grounds of appeal at the Court or issue distilled therefrom. 6.

That Ground 1 of the Appellant’s Notice of Appeal, as to the competence of issue 1 distilled by the Respondent (as Appellant at the lower Court of Appeal) from Ground(iv) of its Notice of Appeal, was never raised by the Appellant at the lower Court, and as such is a fresh issue for which leave of this Honourable Court ought to have been sought and obtained by the Appellant. 7. That Ground 2 of the Notice of Appeal is incompetent, as same is academic, hypothetical, vague, argumentative and conclusive. 8.

That Ground 3 of the Appellant’s Notice of Appeal is a ground of mixed law and facts and no leave of this Honourable Court was sought and obtained to raise same. 9. That the entirety of the Appellant’s appeal ought to be struck out, as Grounds 1,2 and 3 of the Notice of Appeal and issues (i), (ii) and (iii) distilled therefrom are incompetent.

I will treat the preliminary objection first as some grounds challenge the jurisdiction of this Court. Learned Respondent’s Counsel further crystallized the issues in controversy in the objection into three and set them out as follows: a. Whether, having regard to the provisions of Section 12 of the 1999 Constitution of the Federal Republic of Nigeria, this Honourable Court ought not to strike out and/or dismiss this appeal and set aside all prior proceedings and judgments for want of jurisdiction. b.

Whether this Honourable Court has the jurisdiction to entertain this appeal, having regard to the defective service of the notice of appeal therein? c. Whether or not Grounds 1, 2,3 and issues (i), (ii) and (iii) distilled therefrom ought to be struck out for being incompetent?

Learned Appellant’s counsel in the reply brief also identified similar issues for determination. They are set out below: i. Whether the Extradition Treaty between the United State of America and United Kingdom 1931 is applicable to Nigeria as an existing law. ii. Whether in the circumstance service of Notice of appeal on Respondent’s Counsel is proper service. iii. Whether or not ground 1, 2 & 3 of the Notice of appeal is competent to sustain this appeal.

I will adopt the issues as simply expressed by the learned Appellant’s Counsel. In respect of the first head of objection as raised by learned Respondent’s counsel, it was argued for the Respondent that the basis of the application before the trial Federal High Court giving rise to this appeal is unenforceable in Nigeria.

Counsel submitted that the said Extradition Treaty between the USA and Great Britain on 22/12/31 has no force of law in Nigeria and cannot be an instrument for enforcement by any authority and person throughout Nigeria having regard to Section 12(1) of the 1999 Constitution (as altered). Counsel argued that the treaty referred to has not been domesticated by an Act of the National Assembly and is thus unenforceable in Nigeria. Counsel urged the Court to strike out the proceedings from inception as the trial Court is devoid of jurisdiction. Counsel cited Abacha v.

Fawehinmi (2000) 6 NWLR Pt. 660 Pg. 340, NZE BERNARD CHIGBU v. TONIMAS NIGERIA LTD & ANOR (2006) 4 SCNJ 262, A (FC) & ORS v. SECRETARY OF STATE for the HOME DEPARTMENT (2005) UKHL 71, DIGGS v. SCHULTZ 470 F. 2d 461, Matari & Ors v. Dangaladima & Ors (1993) 3 NWLR Pt. 281 Pg.66 and Att. Gen. ONDO v. Att. Gen. EKITI (2001) LPELR-812 (SC) on jurisdiction and interpretation of Statutes. ​ Learned Appellant’s counsel in reply submitted that Section 251(1)(i) and (3) of the 1999 Constitution (as altered) confers the Federal High Court with jurisdiction to entertain extradition proceedings.

Counsel submitted that by Section 315 (1)(a) and 4(b) of the 1999 Constitution (as altered), the Extradition Treaty between USA and UK of 1931 is applicable in Nigeria pursuant to Legal Notice 33 of 1967. Section 274 (4)(b) of the 1979 Constitution is in pari materia with Section 315 (4)(b) and the Courts have held that the Public Officers and other persons (forfeiture of Assets) Order No. 7 of 1977 and Hague Rule of 1924 being a pre-1960 Treaty/Convention are applicable to Nigeria prior to 1/10/1960 and thereafter by virtue of Section 12 of the 1999 Constitution.

Counsel cited ALH MADI MOHAMMED ABUBAKAR v. BEBEJI OIL and ALLIED PRODUCTS LTD & 2 ORS (2007) 18 NWLR Pt. 1066 Pg. 319 at 384; JFS INVESTMENT LTD v. BRAWAL LINE LTD & OR (2010) LPELR-1610 (SC); BRITISH AIRWAYS v. ATOYEBI (2014) LPELR-23120 (SC) in support of the argument that the Extradition treaty between USA and UK in 1931 is an extant law and is binding on Nigeria.

OPINION ON ISSUE ONE OF PRELIMINARY OBJECTION. The Federal High Court has exclusive jurisdiction by virtue of Section 251(1)(i) & (3) of the 1999 Constitution (as altered) to entertain extradition proceedings.

The Appellant as applicants at the trial Court had premised the request for extradition of the Respondent to the USA on Article 3(18) of the Extradition Treaty between the USA and Great Britain signed in London on 22/12/1931 which it argued is still binding on Nigeria by virtue of Section 315(1)(a) and 4(b) of the 1999 Constitution.

The said provisions are set out below for ease of reference: “S.315(1)(a) Subject to the provisions of this Constitution, an existing law shall have effect with such modification as may be necessary to bring it into conformity with the provisions of this Constitution and shall be deemed to be – a) An Act of the National Assembly to the extent that it is a law with respect to any matter on which the National Assembly is empowered by this Constitution to make law; (4) in this section, the following expressions have the meanings assigned to them respectively. (b) “existing law” means any law and includes any rule of law or any enactment or instrument whatsoever which is in force immediately before the date when this section comes into force after that date.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

Extradition treaties that are directly relevant to the territory of Nigeria fall into two distinct periods in time. On the one hand, there are pre-independence treaties entered into by the British colonial administration. On the other hand, there are post-independence treaties entered into by Nigeria as a sovereign State. The applicability of pre-independence treaties to Nigeria derives from a devolution of treaty agreement between Nigeria and Britain.

On October 1, 1960, the territories formerly comprising of the British Colony and Protectorate of Nigeria attained sovereign independence as a State known as the Federation of Nigeria.

Using the instrumentality of an exchange of letters, dated October 1, 1960, between the High Commissioner for the United Kingdom in the Federation of Nigeria and the Prime Minister of the Federation of Nigeria, Nigeria agreed to assume, from October 1, 1960, all obligations and responsibilities of the United Kingdom which arise from any valid international instrument in so far as such instruments may be held to have application to or in respect of Nigeria. These letters together embody a treaty.

It is instructive to emphasize that a treaty can be by exchange of letters or may be embodied in several documents such as the October 1, 1960 letters exchanged between Nigeria and the United Kingdom. Indeed, the Vienna Convention on the Law of Treaties clearly recognizes that a treaty may be embodied in a single instrument or two or more instruments. The nomenclature of such instruments are not prejudicial to the treaty they create.

By virtue of the Nigeria International Rights and Obligations Treaty (created by exchange of letters), Nigeria is bound by pre-1960 extradition treaties relating to the territory of Nigeria but entered into between the United Kingdom and other States. However, Nigeria has indicated that certain pre-1960 extradition treaties are no longer in force in respect of the country. ​Generally, extradition treaties between nations are executory in character and are binding on domestic Courts.

However, for extradition treaties to be justiciable before Nigerian Courts and implemented by the executive arm of government, they must be domesticated by means of an order made pursuant to the Extradition Act 2004. The Extradition Act categorically states that: Where a treaty or other agreement (in this Act referred to as an extradition agreement) has been made by Nigeria with any other country for the surrender, by each country to the other, of persons wanted for prosecution or punishment, the President may by order published in the Federal Gazette apply this Act to that country.

Therefore, whether a particular pre-1960 treaty is in force or not, the Extradition Act requires an order to be made regarding the treaty in the Federal Gazette before the treaty can be implemented. In the event that an extradition treaty has not been proclaimed by way of an order published in the Federal Gazette, the treaty will not be justiciable in Nigerian Courts. This does not mean that the treaty is no longer in force, nor does it mean that Nigeria’s obligations under the treaty have been vacated. It only means that Nigeria has not taken the municipal steps for implementing the treaty.

The extradition treaties between Great Britain and Liberia signed on 16 December, 1892 and the United States of America signed on 22 December, 1931 have been recognized by Nigeria as binding on it, subject to certain modifications. The respective orders have been issued on these two treaties and the Extradition Act recognizes the orders made in relation to the United States of America and Liberia. By the Extradition Decree 1966 No. 87 known as Extradition (United States of America) Order 1967, Section 1 states that the Order shall apply throughout Nigeria.

Section 2 of the said Decree provides in Schedule 1(b) that the Extradition Treaty shall apply to the territory of the Federal Republic of Nigeria which means the Federal Territory and the Regions. In Article 8, the words “the territory of this Britannic Majesty” shall be substituted with the word “Nigeria” Schedule 2 states categorically that the Extradition Treaty between the USA and Great Britain signed at London on 22/12/1931 is recognized as binding on the Federal Republic of Nigeria.

In the published laws of the Federal Republic of Nigeria, 2004, the Extradition Act was published as Chapter E25. The first schedule to that Act provides that Section 1 thereof apply to Liberia and the USA by Legal Notice 32 and 33 of 1967 respectively. ​My Lords, it is clear that the argument of learned Respondent’s counsel that the 1931 treaty has not been domesticated is erroneous and all the case law cited to ground same are irrelevant in the circumstances of this case. As stated in Abacha v.

Fawehinmi (2006) 6 NWLR Pt.660 at Pg.340 by this Court, per Ogundare, JSC: “Before its enactment into law by National Assembly, an international treaty has no such force of law as to make its provisions justiciable in our Courts. See the recent decision of the Privy Council in Higgs & Anor v. Minister of National Security & Ors. The Times of December 23, 1999 were it was held that- “In the law of England and the Bahamas, the right to enter into treaties was one of the surviving prerogative powers of the Crown Treaties formed no part of domestic law unless enacted by the legislature.

Domestic Courts had no jurisdiction to construe or apply a treaty, nor could unincorporated treaties change the law of the land. They had no effect upon citizens right and duties in common or statute law…” in my respectful view, I think the above passage represents the correct position of the law, not only in England, but in Nigeria as well.” Thus, any treaty entered into must be domesticated. The treaty between USA and Great Britain in 1931 was applicable to Nigeria because as at 1931, Nigeria was part of the British Empire.

However, the Extradition Decree of 1967 and the Extradition Act 2004, Cap E25 LAWS OF THE FEDERATION as published has satisfied the requirements of Section 315 (4) b of the 1999 Constitution as (altered) being an “existing law” in force immediately before the coming into effect of the 1999 Constitution. This head of objection is misconceived as the trial Court had jurisdiction to consider and determine the application.

OBJECTION 2 The next head of objection is the submission that the trial Court lacked jurisdiction since the notice of appeal is defective and should be struck out.

Learned Respondent’s counsel argued that the Appellant’s Counsel in breach of Order 2 Rule 3(1)(b) of the Supreme Court Rules did not serve the notice of appeal personally on the Respondent. Counsel submitted that the effect of failure to personally serve an originating process is that it robs the Court of jurisdiction to entertain the suit and the resulting appeal. The Appellant’s counsel argued that the Respondent had instructed counsel to prosecute his appeal while in detention at the High Court.

Counsel argued that the Respondent’s position is mala fide in trying to fault service on his counsel. Counsel argued that the Respondent deliberately disengaged Amos, Adenike & Co. The Respondent had thereafter been personally served on 10/2/2021 and was thus adequately notified of the pendency of the appeal in this Court.

OPINION ON OBJECTION 2 My Lords, generally, it is a well settled position of the law that defective service of a notice of appeal on the Respondent robs the Court of jurisdiction. Order 2 Rule (1)(b) provides for personal service of the notice of appeal to the Supreme Court on the Respondent. The important consideration here which meets the ends of law and justice is that the Respondent who has participated fully in this appeal since it was instituted in this Court in February, 2021 must be that the Court is satisfied that the Respondent has in fact been served.

The Respondent endorsed the address of his counsel as shown in the record of appeal. The Respondent acknowledged service through his counsel in this matter at the trial Court and the Court below. The Respondent instructed Messer Amos Adenike & Co., to prosecute his appeal and the address of counsel served as address for service on the Respondent as he was in detention at Medium Security Correctional Center, Kuje, pursuant to the order of the trial Court.

In the first instance, I agree that the Respondent’s new counsel should have notified the Court and parties of the change of counsel and address in accordance with the extant rules of Court and not hold the Appellant at fault for endorsing Messer Amos Adenike & Co address for service of the processes meant for him. My Lords, the circumstances of this case are peculiar-. When the Appellant realized that Amos, Adenike & Co had been disengaged by letter dated 08/02/2021, the Appellant in abundance of caution served the Notice and record of appeal on the Respondent on 10/02/2021.

Thus, the complaint here is factually incorrect. The technical or procedural hitch which could have led to procedural incompetence of this Court to hear the appeal was cured. Where a Court has substantive jurisdiction, as in this appeal, but there is at one-point lack of procedural competence, such incompetence can be waived by the Court or the Court can allow the party in disobedience to cure same at any time in the proceedings. See MOBIL PRODUCING v. LASEPA (2002) 18 NWLR Pt. 786 Pg.1 at 32, ABUBAKAR v. NASAMU (2012) 17 NWLR Pt. 1330 Pg. 407 at 593.

In any event, there was in my view proper service of the notice of appeal pursuant to the proviso to Order 2 Rule 1(b) of the Supreme Court Rules.

OBJECTION 3 Learned Appellant’s counsel argued that the 3 grounds of appeal and the issues distilled therefrom are incompetent. Counsel complained that Ground 1 and the issue distilled therefrom is in excess of the ambit of the ground. Counsel also complained that grounds 2 & 3 of the notice of appeal are incompetent being grounds of mixed law and facts for which no leave had been sought or obtained. Counsel cited NIKAGBATE v. OPAYE & ANOR (2018) LPELR-43704 (SC), SHITTU v. PEUGEOT AUTOMOBILE LTD (2018) LPELR-54377(SC).

Counsel also insists that Ground 2 is vague and academic. ​ Learned Appellant’s Counsel replied that this appeal emanated from an originating summons based on affidavit evidence. The law is settled that grounds on an inference of facts and or law are error of law which do not require the leave of Court being sought and obtained. That the essence of grounds of appeal is to notify the Respondent of the grudges of the Appellant against the judgment and halt surprises on parties. Counsel cited OGBORU & ANOR v. OKOWA & ORS (2016) LPELR-48350 (SC).

Counsel submitted that all grounds of appeal are competent.

OPINION ON OBJECTION 3 I have considered the grounds of appeal complained about. The Respondent’s contention at paragraphs 3.42 – 3.55 of his brief is not apposite as grounds 1, 2 & 3 are indicative of errors of law Which do not require leave of Court as erroneously argued by the Respondent. It is evident that the Respondent misconceives ground 1, 2 & 3 to relate to issue of facts notwithstanding that the particulars were very explicit as to the error of law. In MMA INC & Anor v.

NMA (2012) LPELR-20616 (SC) per Suleiman Galadima JSC reiterated this principle aptly thus: “… Five particular classes of errors of law, which when addressed by the grounds can be categorized as grounds of law have been set out in the decision of this Court in Comex Ltd v. Nab Ltd (1997) 3 NWLR (Pt.643) at 656- 657, while affirming the dictum of Nnaemeka-Agu JSC of blessed memory) in Nwadike v. Ibekwe (1987) 4 NWLR (Pt.67) 718 at 744-745, to wit: 1.

It is an error in law if the adjudicating Tribunal took into account some wrong criteria in reaching its conclusion or applied some wrong criteria in reaching its conclusion or applied some wrong standard of proof or; if although applying the correct criteria, it gave wrong weight to one or more of the relevant factors, see O’KELLY V. TRUSTHOUSE FORTE PLC. 19833 ALL E.R at pages 456. 2. Several issues that can be raised on legal interpretation of deeds, documents, terms of art, words or phrases and inferences drawn therefrom are grounds of law: OGBECHIE v.

ONOCHIE (NO.1) Supra at pp. 491-492. 3. Where a ground deals merely with a matter of inference, even if it be an inference of fact, a ground framed on it is a ground of law; provided it is limited to admitted or proved and accepted facts. EDWARDS v. BAIRSTOW(supra) at p.55 H.L. For many years, it has been recognized that inferences to be drawn from a set of proved or undisputed facts, as distinct from primary facts, are matters upon which an appellate Court is as competent as the Court of trial. See BENMAX v. AUSTIN MOTORS Co. Ltd. 1949 All E.R 326 at P. 327. 4.

Where a Tribunal states the law on a point wrongly, it commits an error in law. 5. Lastly I should mention one class of grounds of law which lead the deceptive appearance of grounds of fact id est where the complaint is that there was no evidence upon which a finding or decision was based. This is regarded as a ground of law, on the premises that in a jury trial there would have been no evidence to go to the jury. Before a Judge sitting with a jury could have left a case to the jury there ought to have been more than scintilla of evidence.

So, for this rather historical reason, a ground of appeal complaining that there was no evidence, or no admissible evidence upon which a decision or finding was based has always been regarded as a ground of law.” I am of the view that the grounds of appeal raised by the Appellant and the issues distilled therefrom are grounds of law. In particular, whether the right legal parameters were used to decide the issue of the identity of the Respondent. I am of the view that none of the heads of objection are competent and they are overruled and hereby dismissed.

Now, to the crux of this appeal. A careful look at all issues formulated by both sides show they are essentially the same but differently couched and prioritized. I will determine the live and relevant issues in this appeal by considering issues 1 & 2 as set out by the Appellant.

ISSUE ONE Learned Appellant’s counsel argued that the majority decision of the Court below examined the import of Sections 1, 2 and 3 of the Evidence Act Cap E14 LFN 2004 to determine the appeal but the Court below erred in law to hold that Section 17 of the Extradition Act did not preclude the mandatory Application of Section 84 of the Evidence Act (which relates to computer generated evidence, which essence is to certify the manner in which such evidence is produced) in the circumstance.

Counsel insisted that Section 17 of the Extradition Act being a specific enactment that relates to the admissibility of duly authenticated foreign documents (Extradition package) to an extradition proceeding clearly falls under the exceptions provided under Section 2 of the Evidence Act in relation to the application of Section 84 of the Evidence Act as the Extradition package did not emanate from Nigeria.

Learned Appellant’s counsel argued that the main purpose of Section 84 of the Evidence Act is to ascertain the authenticity of documents and the integrity of the procedure used in producing same, while Section 17 of the Extradition Act specifically deals with same authentication in relation to foreign documents attached to an extradition package.

Counsel argued that the Court below did not appreciate the import of Sections 1, 2 & 3 of the Evidence Act viz-a-viz the provision of Section 17 of the Extradition Act Cap E25 LFN 2004 as it relates to admissibility/authentication of foreign documents in support of Extradition request which clearly puts no further burden on the Hon. Attorney General of the Federation to subject foreign documents to domestic processes.

Learned counsel submitted that duly authenticated documents emanating from a foreign or requesting country is prima facie admissible without further rigorous proof.

On this issue, Learned Respondent’s argued that as rightly found by the lower Court, the documents attached as D1, D2, D3 & D4 to the affidavit of STEPHEN FULLINGTON in support of the Appellant’s extradition request (at pages 59-66 of the record) are inadmissible, by virtue of Section 84(4) of the Evidence Act 2011. Learned Counsel submitted vigorously that Section 84 of the Evidence Act governs the admissibility of all documents generated and/or produced by means of a computer, and such documents must comply with the conditions enunciated therein to be admissible in any proceeding.

Counsel cited KUBOR v. DICKSON (2012) LPELR-9817 (SC).

Learned Respondent’s counsel argued further that the Appellant’s contention that the lower Court was wrong when it held that Section 17 of the Extradition Act does not exclude the specific provision of Section 84 of the Evidence Act in relation to its documents marked as attachments D1, D2, D3 and D4 in this case is misconceived.

Counsel submitted that Section 84 of the Evidence Act was specifically enacted to provide for the admissibility of all documents produced by a computer and therefore takes precedence over any pre-existing general provision as to the admissibility of documents in judicial proceedings.

Learned Respondent’s counsel further submitted that, by Section 34(1) (b)(i) &(ii) of the Evidence Act, the documents have no probative value in that the United State of America (USA) authorities having admitted to hacking the Respondent’s purported email did not show the order of the USA Court upon which it did so and therefore the evidence is inadmissible.

OPINION My Lords, extradition of a citizen by the country of origin or a host country obligation arising from multilateral and bilateral international treaties between countries is a special (quasi-criminal) proceeding which is substantially regulated by the Extradition Act Cap E25 LFN 2004, Extradition (Amendment) Act, 2018 and Federal High Court (Extradition Proceedings) Rules 2015. A lot of energy has been expended by both sides on the issue of the applicability of Section 84 of the Evidence Act 2011 to Extradition proceedings.

Section 84 (1) and (2) of the Evidence Act provides as follows: (1) In any proceeding, a statement contained in a document produced by a computer shall be admissible as evidence of any fact stated in it of which direct oral evidence would be admissible, if it is shown that the conditions in Subsection (2) of this Section are satisfied in relation to the statement and computer in question. (2) The conditions referred to in Subsection (1) of this Section are: (a) That the document containing the statement was produced by the computer during a period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period, whether for profit or not, by anybody, whether corporate or not, or by any individual;

(b) That over that period there was regularly supplied to the computer in the ordinary course of those activities information of the kind contained in the statement or of the kind from which the information so contained is derived; (c) That throughout the material part of that period the computer was operating properly or, if not, that in any respect in which it was not operating properly or was out of operation during that part of that period was not such as to affect the production of the document or the accuracy of its contents; and

(d) That the information contained in the statement reproduces or is derived from information supplied to the computer in the ordinary course of those activities. The correct interpretation to be given to Section 84 of the Evidence Act, where electronically generated document is sought to be tendered is that such electronically generated evidence must be certified and must comply with the preconditions laid down in Section 84(2). It appears that the documents in question do not even fall within the scope of Section 84 of the Evidence Act.

The documents relied upon by the Appellant are as follows: i. Original copy of Letter of Certification with the seal of the United States of America’s Department of State dated 18th day of October, 2017 signed by the Secretary of State of the United States Rex W. Tillerson. ii.

Original copy of Letter of Certification with the seal of the United State of America’s Department of State dated 6th day of October, 2017 signed by the Director/Deputy Director, Office of Internal Affairs, Criminal Division, Department of Justice and duly commissioned and qualified in the presence of the Attorney General of the United States – Jefferson B. Sessions. iii. Original copy of a letter of Certification, dated 6th October, 2017, certifying the affidavit and all attached documents in support of the request for the extradition of the Respondent and iv.

Original copy of affidavit in support of request for the extradition of the Respondent and duly sworn to by Assistant U.S. Attorney, United States Attorney’s Office for the Southern District of New York – Adrew K. Chan. These documents are three original letters and one original affidavit. These are not computer-generated documents. The wordings of Section 84 of the Evidence Act 2011 do not contemplate that before an original official letter is tendered and admitted in evidence, the party tendering same must satisfy the conditions in the provision.

Neither does the provision envisage same where the admissibility of an original affidavit is in issue. It would be ridiculous to assume that a document which was typed using a computer is a computer-generated document. For example, it is the algorithm or data imputed by a Bank Officer into the bank’s data base that generates the various information on the statement of account of a customer.

That Bank Statement is a computer-generated document which has to be certified by the officer to ensure that no one illegally or without authorization tampered with the source data as officially imputed in the computer. Also, the certification must include that the computer was operational or in good working order when the document was generated. I cite with approval the book by S.T.

Hons “Law of Evidence in Nigeria” (Based on the Nigerian Evidence Act, 2011) VOL. 1, 2nd Edition particularly Pages 468-469 wherein the learned Senior Advocate and author opined as follows: “Be it noted that the legislature, in enacting the various sections of the Act that deal with admissibility of computer evidence under the 2011 Act never intended this practical result.

For instance, and as will be shown hereunder, Section 84 of the Act, which deals generally with admissibility of computer generated evidence, was lifted directly from Section 65B of the Indian Evidence Act, 1872, as amended and substantially from Section 69 of the English Police and Criminal Evidence Act, 1984, popularly called in the United Kingdom the PACE Act, 1984.

A deep consideration of most of the reported cases from those jurisdictions has revealed only one pattern: Disputes as to admissibility arise only with respect to admissibility of hi-tech evidence generated from the computer, especially evidence that has much to do with accuracy of the computer or any other machine generating it. It is not part of the practice in India and England that spurious objections be raised on admissibility of commonplace, ordinary documents printed out of the computer, as is being done daily in Nigerian Courts today.

It is very significant to further note that just like Section 64B of the Indian Evidence Act and Section 69 of the PACE Act, Section 84 of the Nigerian Evidence Act, 2011, intends that only complex evidence generated from the computer, against which the calculating or measuring accuracy of the computer is depended upon or stands to be tested is to be objected to or subjected to scrutiny by the Courts and not ordinary documents printed out of the computer.

Indeed, even before the enactment of the 2011 Evidence Act, computer printouts of ordinary documents like letters, deeds and correspondences were easily admissible, the only objections then being as to whether they were pleaded, or they were originals, or they were admissible as photocopies only upon fulfillment of certain conditions.

It will amount to a dishonest attempt to rubbish the intendment of the new Evidence Act, therefore, to have computer evidence admissible as provided in the various Sections of the Act, if such spurious objections are entertained and at times upheld against the admissibility of ordinary documents emanating from the computer, like letters, deeds, etc. Trial Judges should always scrupulously resist such attempts, if for nothing else, to avoid unnecessary delays in trials occasioned by such unwarranted objections.” The opinion of the learned author accords with the law and I adopt it as mine.

In the circumstances of this case, the bundle of documents, not being computer-generated documents, ought to have been relied upon by the Court below in the extradition proceedings. For clarity, Section 17 of the Extradition Act, Cap E25 LFN 2004 provides thus:

(1) In any proceedings under this Act, any of the following documents, duly authenticated, shall be received in evidence without further proof. a. Any warrant issued in a country other than Nigeria; b. Any adoption or statement on oath or affirmation taken in any such country, or a copy of such deposition or statement; c. Any certificate of conviction. (2) For the purpose of this Act, any such document as is mentioned in Subsection (1) of this Section, shall be taken to be duly authenticated – a.

If, apart from this section, it is authenticated in any manner for the time being provided by law; or b.

If it complies with the requirements of Subsection (3) of this Section and is authenticated by the oath or affirmation of some witnesses or by being sealed with official seal of a minister of state of the country in which it was issued or taken. (3) The requirements for this subsection are as follows – a. a warrant must purport to be signed by a judge, magistrate or officer of the country in which it was issued;

b. a document such as is mentioned in Subsection (1)(b) of this Section, must purport to be certified under the hand of a judge, magistrate or officer of the country in which it was taken to be the original or a copy, as the case maybe, of the document in question;

c. a certificate of conviction must purport to be certified by a Judge, magistrate or officer of the country in which the conviction is stated to have taken place. (4) For the purpose of this Act judicial notice shall be taken of the official seals of the ministers of state of countries other than Nigeria. (Underlining mine) It is clear that the admissibility or otherwise of duly authenticated documents (Extradition package) in support of Extradition request in any Extradition proceeding is specifically provided under the Extradition Act Cap E25 LFN 2004 notwithstanding any contrary provision in the Evidence Act 2011 as amended being a municipal law and having regard to Section 2 of the Evidence Act, 2011 as the exception is clearly stated in Section 17 of the Extradition Act for the purpose of already duly authenticated foreign documents.

The law is that specific statute on a matter is not affected by a general enactment on the same matter unless the earlier in time is radically inconsistent with the later. ATTORNEY GENERAL LAGOS STATE v.

ATTORNEY GENERAL FEDERATION & ORS (2014) LPELR-22701 (SC) Pg.52-54, PARAS E-A. this Court Per MUHAMMAD, JSC held thus: “The specific jurisdiction vested in the Federal High- Court under Section 251 (1) (a), (b) and (q) is exercisable “notwithstanding anything to the contrary in the Constitution” including the original jurisdiction conferred on the Supreme Court under the earlier Section 232 (1) of the same Constitution.

The applicable principle of interpretation in this instance remains what Bairamain, J. (as he then was) in delivering the judgment of the then West African Court of Appeal in MRS. F. BAMBOYE v. ADMINISTRATOR GENERAL 14 WACA 616 at page 619 stated thus: “It is an accepted canon of construction that where there are two provisions, one special and the other general, covering the same subject matter, a case falling within the words of the special provision must be governed thereby and not by the terms of the general provision.

The reason behind this rule is that the legislature in making the special provisions is considering the particular case and expressing its will in regard to that case; in other words, the special case provided for in it is expected and taken out of the general provision and its ambit: the general provision does not apply… the above Rule of construction applies equally, of course, when the special and the general provision are enacted in the same piece of legislation. See DRYDEN v.

THE OVERSEERS OF PUTNEY (2).” This Court in its decisions too numerous to readily fathom has cited with approval the foregoing dicta and imbibed the principle so adroitly enunciated therein. See THE GOVERNOR OF KADUNA STATE & ORS v. LAWAL KAGOMA (1982)6 SC 87 at 107-108; KRAUS THOMPSON ORGANIZATION LTD v. NATIONAL INSTITUTE FOR POLICY AND STRATEGIC STUDIES (2004) LPELR-1714 (SC); (2004) 9 NWLR (Pt. 879) 61 and SCHROEDER v. MAJOR (1989) 2 NWLR (Pt. 101) 1 and ORUBU v. NEC (1988) 5 NWLR (Pt.94) 323.”

The requirement of Section 17 of the Extradition Act is due authentication. The function of the Courts is to interpret the law; the Court cannot add to or take away from the provisions of the contents of any legislation. See BOT & ORS v. JOS ELECTRICITY DISTRIBUTION PLC (2021) LPELR-55327(SC). The Court merely has to look at whether the provisions of Section 17 of the Extradition Act were complied with. Who were the people to authorize the Extradition according to the treaty with the USA?

Was the request for Extradition signed by the authorized signatories and then authenticated as their official public signatures? Was the bundle of documents stamped with the proper official seal of the public officer or officer in charge of such matters in the requesting country? Whether the documents were duly executed by the requesting country? Was the information in the bundle of documents consistent with the facts of the Extradition request?

For example, if the charge before the Court of competent jurisdiction in the requesting country as certified by the requesting country is for stealing a car, the Extradition request cannot be for stealing electronics equipment. If the charge before the Court was for drug trafficking, the request cannot be for kidnapping except in situations where the offences were committed in the same transaction by the citizen and so stated in the charge before the Court of the requesting country.

Also, the enquiry would be whether the facts are consistent in one stream regarding the specific offence for which the citizen is sought to be extradited to a foreign country. Were the documents backed up by affidavit evidence of the investigation and findings by the law enforcement officers in the requesting country to ensure that it is not a case in which the request for extradition is based on personal vendetta of a public officer in a requesting country?

In this case, the proceeding which is the subject of appeal was by an application for the extradition of Princewill Ugonna Anuebunwa (the Respondent) to the United State of America by the Attorney General of the Federation founded on a two count charge of conspiracy to commit a substantive offense against the United States, specifically, to commit wire fraud in violation of Title 18, U.S.C. Section 1349 and 1342, and wire fraud and aiding and abetting, in violation of Title 118, U.S.C. Sections 1343 and 2 and upon the request of the United States of America.

Nigeria’s extradition proceedings are structured towards prompt and efficient disposition of issues. The procedure starts with a request for the surrender of a fugitive criminal, made in writing to the Attorney-General of the Federation of Nigeria. The request is to be made by a diplomatic representative or consular officer of the country making the extradition request. Upon receiving the request, the Attorney-General has the discretion as to whether or not to initiate extradition proceedings.

The Attorney-General cannot be compelled by order of mandamus or otherwise to initiate extradition proceedings where he has exercised the discretion to not proceed. The requesting State and Nigeria’s Federal Ministry of Justice have the duty to ensure that certain extradition prerequisites are fulfilled. The 1999 Constitution by Section 34 and 35 guarantees freedoms including those relating to movement, liberty and dignity of the person.

In protection of the constitutionally guaranteed rights, the Courts will not in the name of extradition carelessly surrender its citizens and non-citizens alike unless the Court is satisfied on the facts and position of the law. Prior to commencing extradition proceedings in the Federal High Court, a number of matters must be considered so as to present the required facts in the context of applicable law, otherwise the extradition application is likely to fail.

Pursuant to Sections 3, 9, and 11 of the Extradition Act, the Attorney General of the Federation must file an affidavit stating inter alia that the United states of America has submitted a request to the Attorney-General who must be satisfied that provision is made by the Laws of the United States of America, such that so long as the Respondent has not had reasonable opportunity of returning to Nigeria, he will not be detained or tried in that Country for any offence committed before his surrender other than the extradition offence which may be proved by the fact on which his surrender is granted.

He is satisfied that the offence in respect of which the Respondent’s surrender is sought is not an offence of a political character and he is satisfied that the request for the surrender of the Respondent was not made for the purpose of prosecuting or punishing him on account of his race, religion, nationality or political opinions and that the said request was made in good faith and in the interest of justice.

The Attorney General of the Federation must show by affidavit evidence that if the Respondent is eventually surrendered, he will not be prejudiced at his trial and will not be punished, detained or restricted in his personal liberty, by reason of his race, nationality or political opinions, and he is satisfied that the offence for which the Respondent’s surrender is sought is not trivial in nature or that having regard to all the circumstances in which the offence was committed it will not be unjust or oppressive, or be too severe a punishment, to surrender him.

It must be averred furthermore, that the Attorney General is satisfied that the Respondent has been indicted of the offence for which his surrender is sought but that he is unlawfully at large, and, there is no criminal proceeding pending against him in Nigeria for the offence for which his surrender is sought, or any other offence for the time being. In this case, the Appellant tendered through affidavit evidence the following exhibits: i.

Original copy of a letter of Certification, with seal of the United States of America’s Department of States dated 18th day of October, 2017 signed by the Secretary of State, Rex W. Tillerson and duly commissioned and qualified in the presence of an Assistant Authentication Officer of the Department of States and presented for the Extradition of PRINCEWELL UGONNA ANUEBUNWA to the United States of America. ii.

Original copy of a letter of Certification, with seal Of the United States Department of Justice dated 6th October, 2017 signed by Director/Deputy Director, office of International Affairs, Criminal Division, Department of Justice and duly commissioned and qualified in the presence of Jefferson B. Sessions, Attorney-General of the United States authenticating that Jeffery. M. Olson was at the time of this request the Associate Director, Office of International Affairs charged with the capacity to make this request for the Extradition of PRINCEWILL UGONNA ANUEBUNWA. iii.

Originally copy of a letter of certification, 6th October, 2017 certifying the affidavit and all attached documents in support of the request for the Extradition of PRINCEWILL UGONNA ANUEBUNWA iv. Original copy of affidavit in support of request for extradition of PRINCEWILL UGONNA ANUEBUNWA duly sworn to by Andrew K. Chan, A United States Citizen, Assistant U.S. Attorney’s Office for the Southern District of New York sworn to before the HONOURABLE Paul A. Crotty, U.S.

District Judge, in the United States District Court for Southern District of New York, on the 14th day of September, 2017 and attached with the following Exhibits: a) A certified true copy of the superseding indictment in criminal case no.

S6 16 Cr. 575 by the Grand jury of America and filed on the 7th December, 17 in the United States District Court for the Southern District of New York, United States of America, signed by A True Bill, FOREPERSON, US, Attorney, Preet Bharara, and it is certified and attested with the seal of Court by the Deputy Clerk of Court. b) A certified true copy of warrant for the arrest of PRINCEWILL UGONNA ANUEBUNWA, case No S 6 16 Cr. 575 and issued by the United State District Court for the southern District of New York dated 25th August, 2016; c) Certified true copy of the United States of America’s Laws or Relevant Statutes that provides for the offenses and punishment to which Princewill UGONNA ANUEBUNWA is indicted. d) Original copy of affidavit in support of request for Extradition (sic) of PRINCE-WILL UGONNA ANUEBUNWA duly sworn to by Stephen Fullington, A United States Citizen, Special Agent of the Federal Bureau of Investigations United States sworn to – before the HONOURABLE Paul A.

Crotty, US District Judge, in the United States District Court for Southern District of New York on the 14th day of September, 2017. e) Photograph representation identity of PRINCEWILL UGONNA ANUEBUNWA.

There is a presumption of regularity in the affidavit evidence of the investigating police officers as it relates to their investigation and findings regarding the specific offence for which extradition of the citizen is sought. The affidavit must have been sworn to before a Court of law or a notary public. There must be abundant evidence that the bundle of documents fulfilled all conditions required by Section 17 of the Extradition Act and where it appears to have done so, there is presumption of regularity in respect of such bundle.

Particularly where the documents were properly delivered by the requesting authority. The clincher here is derived from Section 50-52 of the Evidence Act 2011. Section 52 provides as follows for ease of reference: An entry in any public or other official books, register or record, including electronic record stating a fact in issue or relevant fact and made by a public servant in the discharge of his official duty, or by any other person in the performance of a duty specially enjoined by the law of the country in which such book, register or record is kept, is itself admissible.

This is reinforced by Section 3 of the Evidence Act which provides for admissibility of evidence under other legislation. There is presumption of law that a document emanating from an official source is correct when there is no affidavit evidence to show otherwise.

There is no issue of admissibility pursuant to Section 84 of the Evidence Act here. It should not have been imported into the proceedings to confuse matters by the Respondent’s Counsel. The area of admissibility pursuant to Section 84 of the Evidence Act has been closed for exploration by the wordings of Section 17(1) as underlined above by me.

Since the Extradition Act fully guides the Extradition proceedings the issue of admissibility or whether the typewriter Computer (word processor) used was verified by a statement or not pursuant to Section 84 of the Evidence Act does not arise for consideration. In any event, the statement to validate any computer printout can even be orally made in Court or by affidavit evidence.

My Lords, the issue of the admissibility of the bundle of documents emanating from the requesting country to the country of refuge or the country of nationality does not arise by virtue of Section 17 of the Extradition Act so long as all the requirement stated earlier have been answered by the bundle of documents emanating from the proper authorities in the requesting country and given to the proper authority in the country of refuge or country of nationality of the person sought to be extradited.

At best, if there is verifiable challenge to some of the facts relied on by the requesting country, the issue of weight to be attached to the affidavit evidence may arise in special circumstances. The admissibility of the documents may go to the root of the trial of the Respondent in the requesting country but it is certainly not relevant to the proceedings for extradition. This is because the extradition proceeding is not the criminal trial of the Respondent and should not be so equated. The issue of S.84 as stated earlier merely muddied the waters.

On this issue, the majority of the Court below held as follows on page 427 of the record.

“It is clear from the evidence of the Respondent i.e. the application for extradition of the Appellant and the affidavit in support with its attached exhibits that the Respondent might not have complied with the provisions of Section 84(4) as to the requirement for the admissibility of the evidence at the trial Court.” I agree in toto with the dissenting opinion of Stephen Jonah Adah JCA on page 456 of the record and could not have put it better myself where his Lordship stated as follows: “…under this law, the responsibility of ensuring that the documents admitted into evidence are from authentic sources which Section 84 of the Evidence Act addressed, is addressed in Section 17 of the Extradition Act.

The only area to note critically is the fact that Section 84 is a municipal law laying down the test to deploy to assure authenticity of documents generated by computers, while Section 17 of the Extradition Act deals with documents authenticated from foreign jurisdiction. The documents authenticated from foreign jurisdictions are prima facie admissible without rigorous proof. It is therefore, settled from the law that Section 84 of the Evidence Act is not automatically applicable to Extradition proceeding.”

In the circumstances, this issue is resolved in favour of the Appellant.

ISSUE TWO On this issue, learned Appellant’s counsel submitted that the purpose of extradition hearing upon the application of the Attorney-General is not to conduct a criminal trial of the fugitive Respondent. Rather it is to invoke the exercise of the judicial powers of the Court over the fugitive as the Court would over a defendant standing trial before it.

Both lower Courts agreed and I agree with them that the requirement for the grant of surrender order of a fugitive criminal in an extradition proceeding at page 416-417 of the Record of Appeal to the effect that extradition is not a full blown trial and the Applicant (Honourable Attorney-General of the Federation) is expected to establish prima facie evidence, before a judge in the case of a fugitive criminal.

The learned counsel argued that the Court below misinterpreted and did not appreciate the purport of Section 9 (6A) of the Extradition (Amendment) Act, 2018 viz-a-viz the trial Court’s decision by placing the burden of proof beyond prima facie requirement on the Appellant. Counsel submitted that the law is settled that when interpreting clear and unambiguous words of a statute it should be given its literal meaning. Counsel cited AWOLOWO v. SHAGARI (1979) 6-9 SC, A.G OGUN STATE v. ABERUAGBA & ORS (1985) LPELR-3164 (SC).

Learned Appellant’s counsel insisted that the extradition package forwarded by the United State of America in request for the extradition of the Respondent was not only detailed but proactive to rebut satisfactorily the defence of mistaken identity even if properly raised in accordance with Section 9(6A) of the Extradition (Amendment) Act, 2018.

Counsel argued that the Court below erred in law to have jettisoned the findings of the trial Court by placing on the Appellant a greater burden of proof than what was expected by enabling laws in extradition proceedings. Counsel cited MAINSTREET BANK & ANOR V. BINNA (2016) LPELR-48351 (SC) P.32 Paras B-D.

Counsel argued that the affidavit attached to the request for extradition constituted evidence to be rebutted by the Respondent who failed to do so when the evidential burden of proof shifted to him. Counsel cited IROAGBARA V. UFOMADU (2009) LPELR-1538 (SC).

Learned counsel argued that the respondent had contended that his was a case of mistaken identity as the intended indicted person was not him since the description in the extradition package did not fit his description in that while the package referred to a “black male”, he was light skinned. Counsel urged the Court to rely on the exhibits attached to the affidavit as part of the package/bundle delivered to the Appellant by the requesting country.

On this issue, learned Respondent’s counsel argued that once a claim of mistaken identity is made pursuant to Section 9(6)(A) of the Extradition (Amendment) Act, 2018, the burden lies squarely on the Appellant to prove that the person sought to be surrendered is the person before the Court. ​ Learned Respondent’s counsel referred to the findings of the trial Court at page 327 of the record which placed the burden of proof of identity on the Respondent and not on the Appellant.

Learned counsel urged this Court to agree with the reasoning in the majority decision of the Court below that the Appellant did not discharge the burden of proof that the Respondent is the person indicted and should be surrendered.

Learned Respondent’s counsel argued that the finding of the trial Court was erroneous in the face of the clear provisions of the Extradition (Amendment) Act 2018. The trial judge, who ought to have discharged the Respondent on this provision alone, misapplied the law by placing the onus of proof on the Respondent; granted the extradition of the Respondent and ordered his surrender to the United States of America.

Counsel argued further that the Court below was right to have set aside the judgment of the trial Court since misplacement of burden of proof in that case led to miscarriage of justice. Counsel cited OKOYE v. NWANKWO (2014)15 NWLR Pt.1429. Pg. 93 at 131. Counsel also cited ABUBAKAR v. NASAMU (2011) LPELR-1831(SC) Pg. 71- 72, paras. F-A), ADIGUN v. AG OYO STATE (1987) 1 NWLR Pt.53 at 678.

OPINION Extradition is a cooperative legal process of one state called the surrendering state or authority which surrenders an individual to another state called the requesting state for prosecution or punishment for crimes committed within the requesting country’s jurisdiction. The extradition process is usually spelled out in bilateral or multilateral extradition treaties or agreements. Extradition becomes necessary when a criminal fugitive flees from one country to another to avoid facing trial or punishment.

Persons who may be extradited include those who have been tried and convicted but escaped custody by fleeing the country, and those convicted in absentia- a trial in which the accused person is not physically present. Extradition is distinguished from other methods of forcibly removing undesirable persons from a country, such as exile, expulsion and deportation. Extradition procedures are usually determined by the terms of treaties between individual countries or by multilateral agreements between groups of countries such as the Common Wealth countries or the countries of the European Union.

The receiving government then refers to its laws and its treaty-specified obligations to the requesting nation and decides whether or not to extradite the person named in the warrant. Treaties signed in recent decades tend to take a “dual criminality” approach, classifying as extraditable all crimes that are punishable in both jurisdictions. Older extradition treaties, by contrast, tend to list covered offenses.

As stated earlier, before the Court can grant the surrender order of a citizen of its country or a fugitive expatriate, the applicant in this case, the AGF is expected to establish by prima facie evidence: a. That there is a request for the surrender of the fugitive; b. That the fugitive is accused of extradition offences in a country other than Nigeria; c. That there is warrant of arrest issued outside Nigeria authorizing the arrest of the fugitive; d. That the warrant was issued in a country to which Extradition Act applies; e.

That the warrant was duly authenticated and same relate to the fugitive; f. That the offences which the fugitive is accused of are ext g. That the evidence produced will according to theraditable offences; law in Nigeria, justify the committal of the fugitive for trial if the offences were committed in Nigeria; and ​h. That the surrender of the fugitive is not precluded by the provisions of the Extradition Act and particularly Section 3 (1-7) of the Act. See Order V Rules 1 Federal High Court (Extradition Proceedings) Rules 2015 and Sections 3, 5, 6 & 9 of the Extradition Act, CAP E25 LFN 2004.

By the Extradition (Amendment) Act, 2018 which amends the Extradition Act CAP E26, LFN, 2004 to remove the jurisdiction of the Magistrate Court and replace it with the Federal High Court in extradition proceedings. The amendment also provides for procedural safeguards to avoid extradition of persons in cases of mistaken identity.

Section 9(6A) of the Extradition (Amendment) Act, 2018 provides thus: Where a claim of mistaken identity is raised by a person who is the Defendant in an extradition case and no evidence is led by the plaintiff or the requesting country to satisfactorily rebut the claim of mistaken identity as raised by the Defendant, the Court shall dismiss the application for extradition order and accordingly order the Defendant discharged.

Generally, all cases and matters before the Courts in Nigeria are either civil or criminal. The proper classification of a case is important because of the applicable procedural rules and standards. Extradition Proceedings in Nigeria are sui generis and strictly guided by the Extradition Act and Extradition Proceedings Rules. The proceedings are criminal to the extent that they deal with a criminal charge or conviction raised by the requesting State.

However, unlike regular criminal proceedings, extradition proceedings do not result in a determination of whether the alleged fugitive is guilty or innocent, nor do they end in a post-conviction sentence. Extradition proceedings are therefore a peculiar kind of criminal proceedings.

A most fundamental significance of the distinction is that generally, the standard of proof is higher in criminal matters than in civil matters. The standard in criminal cases is proof beyond reasonable doubt, while in civil cases it is sufficient to prove on a balance of probabilities or preponderance of evidence.

Where the person sought to be extradited files a Fundamental Human Rights enforcement case, the case will be a civil matter even though it arises from, or is linked to, extradition proceedings. ​ I agree with the Appellant’s Counsel that the purpose of the hearing in the trial Court upon the application of the Attorney-General is not for the trial of the fugitive criminal. Rather, it is to invoke the exercise of the judicial powers of the Court over the fugitive defendant as the Court would over a defendant standing trial before it.

In the circumstance, those powers are preliminary to the eventual trial of the fugitive accused, such as the power to remand or to release on bail pending the completion of investigation. The reference to the appropriate Court in Section 9(1) of the Extradition Act is to confer on the trial Court, the special jurisdiction and powers to perform the preliminary judicial functions requisite to enhance the administrative processes for the completion and execution of the request of the Attorney-General to surrender the alleged fugitive criminal to the requesting country.

The fugitive is not standing trial for the offence for which the extradition order is sought. To perform this function, the judge uses the standard that is required before the Courts in Nigeria in committing a defendant to face trial which is the establishment by the prosecution of a prima facie case. In Nigerian jurisprudence, a prima facie case means that there is reason for the Court to continue the proceedings, in this case, to order the surrender of the fugitive to the requesting state for the trial or to serve his sentence. See AGBO & ORS v. STATE (2013) 11 NWLR Pt. 1365 Pg. 377.

The evidence must be sufficient to warrant a Court to commit the fugitive to face trial. Thus prima facie evidence is evidence good and sufficient on its face.

The new amendment to the Extradition Act by the addition of Section 6A to Section 9(6) has squarely placed the burden of proving the identity of the person sought to be extradited on the requesting authority. By virtue of Section 132 of the Evidence Act 2011, the burden of proof in a suit or proceedings lies on that person who would fail if no evidence at all were given on either side.

In the circumstances of this case, where a person (citizen) challenges his extradition on the basis of wrong identity, the applicant (AGF) has the burden of proving the identity of the person to be extradited on a balance of probabilities. The legal burden is fixed on the applicant in this case the Appellant. By Section 133(1) of the Evidence Act the Appellant must first prove the identity of the person to be extradited. As in all civil matters, the burden of proof will shift from side to side as the evidence preponderates.

The wordings of Section 17 of the Extradition Act which states that the extradition package is admissible without further proof has not been watered down by Section 9(6A) of the same Act as admissibility is different from probative value to be given any piece of evidence.

It is settled law that what pleadings is to a party is what an affidavit is to a party in an interlocutory application or even in certain substantive or originating process and any document attached to an affidavit is part of the affidavit and must be considered together. See UBN PLC v. ASTRA BUILDER (W.A) Ltd (2010) LPELR-3383(SC). The affidavit evidence of the Appellant with the bundle of extradition documents were copious enough to make a prima facie case.

The Respondent herein claimed that the extradition package described him as a “black male” whereas he is light skinned in color. We all know without any prevarication or dissembling that “black male” refers to race rather than tone of skin color. The Extradition package submitted to the Appellant by the requesting state contained particularly Exhibit D1-D4 namely: UAE Entry Visa, Federal Republic of Nigeria’s issued Driver’s license, all carrying a photo impression of the Respondent. The Respondent never swore that the photographs attached were not of him.

It is my view that Exhibit CAUI, the extradition package with its details of photo evidence of the Respondent rebutted the assertion of the Respondent that he is a victim of false identity on the balance probabilities to warrant the evidential burden to shift to the Respondent. Exhibit CAUI was very detailed regarding the identity of the Respondent. It is not enough for the Respondent to make the serious claim of mistaken identity then fail to substantiate it by any evidence.

The circumstances of this case are clear. The Respondent claims mistaken identity on the basis that he has a twin brother who may be the person sought to be extradited. The affidavit on record shows that the Appellant’s twin brother bears another name and is also facing extradition in the United Kingdom. A claim of mistaken identity is relevant where Mr. Peter so called and identified is mistaken for Mr. James who bears a different name and identity. Where Mr. Peter is sought to be arrested and he is in fact arrested, he cannot claim that the authorities should have arrested Mr.

James as he is not Mr. James. That is to say where the authorities seeking an identifiable person called Mr. Peter, mistakenly arrests another identifiable person and calls him Mr. Peter whereas that other person’s rightful name and identity is Mr. James, then Mr. James can lay claim to being mistaken for Mr. Peter. That is not the case here.

I am of the view that the Appellant discharged the burden of proof placed on him by Section 9(6A) of the Extradition Act. This issue is resolved in favour of the Appellant.

CROSS-APPEAL The Respondents cross-appealed. The sole issue for determination as crystallized by the Cross Appellant is: Whether the lower Court was right not to dismiss the extradition application having regard to Section 9 (6A) of the Extradition (Amendment) Act 2018.

The Respondent in the main appeal complained about the failure of the majority decision of the Court below to discharge the Respondent instead of the order that the Respondent, should be subjected to a retrial. Counsel submitted that the Court below having found that the trial Court misplaced the burden of proof on the issue of identity of the Respondent, should have promptly discharged the Respondent.

Learned Cross Respondent argued that the affidavit of the Cross appellant shows that a claim of mistaken identity was raised by the trial Court.

Counsel argued that the Court below arrived at the conclusion that the Cross Respondent was “expected to prove otherwise.”

He who asserts must prove. If the cross-respondent averted that he was satisfied with the evidence against the cross-appellant, it was his duty to discharge the burden of proof as he who asserts must prove.

Learned Counsel for the Cross-Respondent argued that the extradition application was in full compliance with the law. Counsel argued that it is the duty of the cross-appellant to prove that he has a twin brother which is a fact particularly within his own knowledge.

Learned Cross-Respondent argued that the evidential burden swings from side to side or party to party depending on the fact in issue. Counsel cited OKOYE v. NWANKWO (2014) LPELR-23172 (SC).

Learned Cross-Respondent counsel argued that the Court below was wrong in law to place on it the burden to prove facts within the knowledge of the Cross-Appellant.

OPINION ON CROSS-APPEAL The portion of the decision of the Court below which forms the basis of this cross-appeal is on Pg. 459 of the Record: “Having regards to all my findings on the issues above, it is clear that the trial Court did not appreciate the issues of law which were brought before it and in this circumstance, the trial judge failed in his primary duty in the evaluation of evidence to make findings of fact on the issue or issues joined on the evidence of the parties before it, material for reaching a just decision.

This Court therefore has no other option than set aside the decision of the trial Court and order that this case be sent back to the trial Court for a retrial. An order for accelerated hearing of the matter at the trial Court is hereby made.”

In the majority judgment of the Court below at pg. 439, the Court found as follows: “I believe that an issue of mistaken identity as in this case is one that should not be taken lightly to avoid a person from suffering for the sins of another.

Looking at both the application for extradition of the Appellant and the Counter-Affidavit in opposition thereto, it is clear that the Respondent applied for the extradition of the Appellant at the trial Court because he believes the Appellant is the one who was requested by the United States of America for extradition to answer to criminal charge against him in that country.

The appellant in turn refuted that claim by stating in Counter-Affidavit contained at page 205 of the Record of Appeal especially at paragraph 9, 11, 13 and 15b that he is not the person who the Respondent has applied to extradite. In my view, what was expected of the Respondent was to bring sufficient evidence to prove otherwise. If I must borrow the words of the trial judge at page 327 of the Record of Appeal, in our jurisprudence, he who asserts must prove.

What this simply means is that in view of the fact that the Respondent averred that he is satisfied that the Appellant has been indicted of the offence for which his surrender is sought, the burden of proof rested on the Respondent. And this is by an interpretation of Section 131 (1) of the Evidence Act. It is trite law that he who asserts must prove correctness of his assertion.”

At the trial Court, the learned trial judge held on page 327 of the record as follows: “On the other hand, the respondent in their Counter-Affidavit did not tender any documentary or material evidence to buttress their assertion especially that the respondent is not the person who travelled to the United States but his twin brother. Where issue of identity is raised as an issue by a respondent in extradition proceeding, it is not the duty of the applicant to deny but that of the respondent to prove.”

In essence, while the cross-appellant argued that on the issue of identity of the person to be extradited, the onus of proof of identity lies and is fixed on the cross Respondent, the cross-appellant also urged the view that the onus of proof of the identity of the cross Appellant should not shift from the Cross Respondent. The cross-respondent argued that AGF had discharged the onus of proof and it had shifted to the Cross-Appellant.

OPINION This boils down to the question already answered in part earlier in the substantive appeal which is to wit: What is the legal and evidential burden of proof placed on the refugee state in extradition proceedings. As stated earlier, extradition proceedings are sui generis. While the legal burden of proof is fixed, the evidential burden shifts as the evidence preponderates. OKOYE & ORS v. NWANKWO (2014) LPELR-23172 (SC) wherein Per Peter-Odili, JSC opined thus: “Burden of proof is two-fold.

The first is the ability of the Plaintiff to establish and prove the entire or reasonable portion of his case before a Court of law that can give judgment in his favour. This is always constantly on the Plaintiff. The other type is related to particular facts or issues which a party claims exist. It is this burden of proof that oscillates from one party to the other.

While the first type of burden of proof is called legal burden of the burden of establishing a case, the second one is called evidential burden.” The protagonist in an extradition proceeding is of course the surrendering authority who tenders all the bundle of documents which emanated from the requesting authority.

Section 9(6A) of the Extradition Act (as amended) provides: (6A) Where a claim of mistaken identity is raised by a person who is a Defendant in an Extradition case and no evidence is led by the plaintiff or the requesting country to satisfactorily rebut the claim of mistaken identity as raised by the Defendant, the Court shall dismiss the application for extradition order and accordingly order the defendant discharged.” Where the issue of mistaken identity is raised, the Court has to weigh on a balance of probability whether the affidavit evidence adduced by the requesting authority is sufficient to counter the claim of mistaken identity.

My Lords, the extradition package (Exhibit CAU 1) contained documentary evidence to wit- Exh. A – certified true copy of superseding indictment, Exh. B – certified true copy of arrest warrant, Exh. C-Relevant legal provisions, Affidavit in support of Request for Extradition and thereto attached are Exh. D-Affidavit of FBI special Agent Stephen Fullington, Attachment D1- Photograph of Anuebunwa from Mike.

William 1954 account; Attachment D2-Photograph of Anuebunwa from investment account; D3 – Image of Anuebunwa from Instagram, and D4- Image of Anuebunwa from US visa application. ​It appears that this provision is inapplicable having regard to the facts and circumstances of this case. It would have been applicable if the request had been for extradition of Princewill Ugonna Anuebunwa and the Appellant argued that he is not Princewill Ugonna Anuebunwa. The request package and application filed at the trial Court requested the extradition of Princewill Ugonna Anuebunwa.

The Appellant did not claim that he is not Princewill Ugonna Anuebunwa. He only alleged that the target of the extradition proceedings must be his brother. But his brother has a totally different name. He did not allege that they share the same name. It would have been a different case if the extradition request bore his brother’s name but he was the one arrested and sought to be extradited. If the Appellant wanted to apply for the extradition of the Respondent’s brother, he would have so applied. The Appellant would not have listed the Respondent’s name in the application.

There is no issue of mistaken identity here. Section 9(6A) of the Extradition Act, 2018 is indeed irrelevant to this case. All the Respondent’s argument in this regard amounts to a failed attempt to force the provision to apply to a totally unrelated set of facts. I am of the view that where the counter-affidavit is unable to substantially rebut the evidence in the requesting affidavit, there is no need for a further affidavit. When any fact is especially within the knowledge of a defendant and upon which he would want to rely, the burden of proving it is on him.

It is not enough to assert as shown on Pg. 205 of the record in the Cross-appellant’s counter-affidavit that he had never been to the United States, that only his twin brother had been to the USA and that he is not a black male with brown eyes etc. The averments in the counter affidavit of the Respondent/Cross-Appellant at trial were too feeble compared to the quality and quantity of affidavit evidence adduced by the requesting country. No doubt it was wrong for the trial Court to place the evidential burden of proof wholly on the requesting country in the way it was expressed.

However, even where the decision is right but the reasons given for it is wrong so long as it has not caused miscarriage of justice, it will not be set aside. I am of the view that the cross-appeal has no substance and should be dismissed. It is hereby dismissed.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”></br<>

Appeal Allowed. Cross-Appeal Dismissed.

MUSA DATTIJO MUHAMMAD, J.S.C.: I entirely agree with my learned brother, HELEN MORONKEJI OGUNWUMIJU JSC and adopt the reasoning and conclusion expressed in his lead judgment just read to allow the appeal and dismiss the unmeritorious cross-appeal.

CHIMA CENTUS NWEZE, J.S.C.: I had the advantage of reading the draft of the leading judgment which my Lord, Ogunwumiju, JSC, just delivered. I entirely agree with His Lordship.

Briefly on the preliminary objection. The respondent raised a preliminary objection centered on the competence of this Court to entertain this appeal. The respondent’s counsel in its preliminary objection, raised three issues for determination by this Court, to wit: (a). Whether, having regard to the provisions of Section 12 of the 1999 Constitution of the Federal Republic of Nigeria, this Honourable Court ought not to strike out, and/or dismiss this appeal and set aside all prior proceeding and judgments for want of jurisdiction. (b).

Whether this Honourable Court has jurisdiction to entertain this appeal, having regard to the defective service of the notice of appeal therein? (c). Whether or not Grounds 1, 2, 3 and issues (i), (ii) and (iii) distilled therefrom ought to be struck out for being incompetent?

Similarly, appellant’s counsel, in its reply brief to the preliminary objection, formulated three issues for determination, to wit: (a). Whether the Extradition Treaty between the United State of America and United Kingdom 1931, is applicable to Nigeria as an existing law. (b). Whether in the circumstance, service of Notice of Appeal on respondent’s counsel is proper service. (c). Whether or not grounds 1, 2, and 3 of the notice of appeal is competent to sustain this appeal.

My learned brother adopted the issues as set out by the appellant’s counsel. I shall abide by same here. My focus shall be solely on issue one as set out by the appellant’s counsel.

The center-piece of respondent’s contention on issue one is that the said Extradition Treaty between the USA and Great Britain on 22nd December, 1931, has no force of law in Nigeria, and cannot be an instrument of enforcement by any authority and person throughout Nigeria having regard to Section 12 (1) of the Constitution of the Federal Republic of Nigeria, 1999 (as altered). ​He further posited that the Treaty referred to, having not been domesticated by an Act of the National Assembly, is unenforceable in Nigeria. He referred to the following cases in support of his submissions.

See Abacha v. Fawehinmi [2006] 6 NWLR (pt.600) 340, Nze Benard Chigbu V. Tonimas Nigeria Ltd and Anor [2006] 4 SCNJ 262, A (FC) and Ors v. Secretary of State for the Home Department [2005] UKHL 71, Diggs v. Schultz 470 F. 2d 461, Matari and Ors v. Dangaladima and Ors [1993] NWLR (pt. 281) 66 and Attorney-General, Ondo State v. Attorney-General, Ekiti State [2002] LPELR-812 (SC).

For the appellant, learned counsel submitted that by Section 315 (1) (a) and 4 (b) of the Constitution of the Federal Republic of Nigeria, 1999 (as altered), the Extradition Treaty between USA and UK of 1931 is applicable in Nigeria, pursuant to Legal Notice 33 of 1967. He referred to Section 274 (4) (b) of the Constitution of the Federal Republic of Nigeria, 1999 (as altered).

He further argued that the Courts have held that the Public Officers and other persons (forfeiture of assets) Order No. 7 of 1977 and Hague Rule of 1924  ​being a pre-1960 Treaty/Convention, are applicable in Nigeria prior to 1st October, 1960 and thereafter by virtue of Section 12 of the Constitution of the Federal Republic of Nigeria, 1999 (as altered). Reliance was placed on the following cases. See Alhaji Madi Mohammed Abubakar v. Bebeji Oil and Allied Products Ltd and 2 Ors [2007] 18 NWLR (pt. 1066) 319 at 384, JFS Investment Ltd v.

Brawal Line Ltd and Ors. [2010] LPELR-1610 (SC) and British Airways v. Atoyebi [2014] LPELR-23120 (SC). Learned counsel urged this Court to strike out the respondent’s objection and determine the appeal on its merits.

Now, in 1931, the United Kingdom and the United States of America entered into an Extradition agreement. By virtue of Article 16 of the Extradition Treaty, the Nigerian Protectorate was included as an area the Treaty would apply, as if they were possessions of His Britannic Majesty. On October 1, 1960, Nigeria became an independent nation. On that date, the Nigerian government indicated its intent to be bound by treaties incurred by Great Britain.

Section 10 (1) of the Constitution (Suspension and Modification Decree) No. 1 of 1966, conferred power to make instruments and execution of same by certain authorities. It was by virtue of this that the Legal Notice No. 33 of 1967 was made, which embodied the Extradition Act of 1966, otherwise called Extradition (United States of America) Order 1967.

In its preamble, it provides thus: “WHEREAS the Extradition Treaty concluded between the United States of America and Great Britain and signed at London, on the 22nd December, 1931 for the surrender of fugitive offenders, has been recognized as binding on Nigeria subject to the modifications specified in Schedule 1 hereof…” From the foregoing, it is evident that the Legal Notice was used to make the Act binding in Nigeria as if it had been made between the independent nation of Nigeria and the United States of America.

The Extradition Act, which came into force in 31st January, 1967, is further protected by Section 315 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) which provides: Subject to the provisions of the Constitution, an existing law shall have effect with such modification as may be necessary to bring it into conformity with the provisions of this Constitution and shall be deemed to be: (a) An Act of the National Assembly to the extent that it is a law with respect to any matter on which the National Assembly is empowered by this Constitution to make laws.

Subsection 3 of this Section of the Constitution went a bit further to state that: Nothing in this Constitution shall be construed as affecting the power of a Court of law or any Tribunal established by law to declare invalid any provision of an existing law on the ground of inconsistency with the provisions of any other law, that is to say: a). Any other existing law b). A law of the House of Assembly c). An Act of the National Assembly d). Any provision of this Constitution. See also Section 22 of the Extradition Act, Cap.

E25 LFN 2004 On the strength of the foregoing provisions, I find no difficulty in holding that the Extradition Treaty, deemed to have been made by the National Assembly, shall continue to rate next to the Constitution in terms of precedence, Federal Civil Service Commission v. Laoye [1989] 2 NWLR (pt. 106) 652, 676. To this end, it did not need to be domesticated within the meaning of Section 12 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), as it was already in existence before 1999.

It is trite law that where the Constitution, as in this case has given a jurisdiction, it cannot be lightly divested. Where it is intended to be divested of the jurisdiction given to it by the Constitution, it must be done by clear, express and unambiguous words and by a competent amendment of the Constitution, not by any other method.

Consequently, the provisions of Section 251 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), wherein it conferred exclusive jurisdiction on the Federal High Court on matters of extradition, such power cannot, therefore, be limited other than by the same Constitution. With these views, I have no doubt that the respondent/applicant in the Preliminary Objection misconceived the issues of the Treaty between Nigeria and the United States. The Treaty having been secured by the Constitution as an existing law and by Section 22 of the Extradition Act, Cap.

E25 LFN 2004, is, therefore, a valid and enforceable Treaty in this country. ​ I hereby discountenance this preliminary objection and resolve the preliminary objection in favour of the appellant.

MAIN APPEAL It is contended by learned counsel for the appellant that the Court below in its majority decision jettisoned the requirement for the admissibility of pleaded documents having relied on Sections 1, 2 and 3 of the Evidence Act, E14 LFN 2004.

He argued further that the Court below erred in law to hold that Section 17 of the Extradition Act did not preclude the mandatory application of Section 84 of the Evidence Act (which relates to computer-generated evidence, which essence is to certify the manner in which such evidence is produced in the circumstance.

He submitted that the main purpose of Section 84 of the Evidence Act is to ascertain the authenticity of document and the integrity of the procedure used in producing same. He placed reliance on the cases of Dickson v Sylva & Ors (2016) LPELR-41257 (SC) and Onuoha v. Ubah & Ors (2019) LPELR-48129 (SC).

RESOLUTION The very able and plausible argument of counsel for appellant has prompted a very thorough investigation of all the authorities referred to by counsel, and all within the reach of this Court, and after such investigation, I am entirely satisfied, upon reason and largely preponderant authority that to seek to adopt the procedure in Section 84 of the Evidence Act in determining the admissibility of documents duly authenticated in foreign jurisdictions is incurably defective.

Extradition Proceedings, like the undefended list procedure, as well as election petitions, are sui generis and as such are strictly guided by their own law i.e. the Extradition Act and Extradition Proceeding Rules. It is not to be lumped together and confused with other species of criminal proceedings that are expected to follow normal procedure. The purpose of hearing in an extradition proceeding, which is in fact purely at the discretion of the Attorney- General is to determine whether the requisition made shows sufficient cause to warrant extradition.

It appears to me, that the Court below misconstrued the provisions of Sections 1 and 2 of the Evidence Act. By virtue of Section 1 of the Evidence Act, all evidence adduced in accordance with the provisions of the Act shall be generally admissible in Court proceedings.

However, where evidence has been excluded from the application of the Evidence Act, by any other legislation validly in force, it shall be admissible in accordance with the conditions for its admissibility as may be specified in that other law or Act, as the case may be. This is the current position of the law in Section 2 of the Evidence Act.

Section 17 of the Extradition Act, being a specific enactment that relates to the admissibility of duly authenticated foreign documents (extradition package) to an extradition proceeding, clearly falls under the exceptions provided under Section 2 of the Evidence Act in relation to the application of Section 84 of the Evidence Act as the Extradition package did not emanate from Nigeria.

I will end this judgment by saying that the issues formulated for the determination of this appeal are resolved in favour of the appellant. Appeal allowed.

TIJJANI ABUBAKAR, J.S.C.: Before the Federal High Court of Nigeria sitting in Abuja, the Honourable Attorney General and Minister of Justice, filed application dated the 14th May, 2018, pursuant to the Extradition Act Cap, E25, Laws of the Federation of Nigeria 2004 requesting for the surrender and Extradition of the Respondent Princewill Ugonna Anuebunwa following a request to extradite made by a Diplomatic Representative of the Embassy of the United States of America in Abuja, the application is premised on a two count indictment in case No.

S6 16 Cr. 575 (PAC) filed in the United States District, Southern District of New York, and the indictment was filed on the 19th day of June, 2017. The application of the Attorney General was heard and granted by the Federal High Court on the 1st day of June 2020 directing the extradition and surrender of the Respondent. The Court made orders that the Respondent be handed over to the United States to face the indictment against him.

The Respondent became nettled by this decision and therefore filed notice of appeal at the Court of appeal Abuja Division on the 10th day of June, 2020. At the lower Court, the Respondent got judgment by a majority decision of two against one, the majority decision held the view that the trial Court did not understand and appreciate the evidence sought to be relied on to erect the request for extradition. The minority decision of the lower Court fully agreed with the trial Court and affirmed the decision granting the application to extradite the Respondent.

The majority decision sent the application back to the lower Court to be heard again by another Judge.

The Appellant Attorney General being aggrieved by the decision of the lower Court made for this Court on appeal on the 18th day of January, 2021. The Respondent also filed notice of cross-appeal on the 7th day of October, 2021.

What appeared to raise ripples over the application for extradition was the persistent claim by the Respondent that he was not the fugitive sought to be extradited by the application, that there was a case of genuine, valid and cogent mistaken identity. The Respondent insisted that he was not the person sought to be surrendered by the application.

The Respondent filed a notice of preliminary objection which my Lord and learned brother OGUNWUMIJU, JSC who graciously made available to me the illuminating leading judgment prepared and rendered in this appeal, my learned brother dealt with the preliminary objection admirably well and I entirely agree that the objection is patently frivolous and deserves to be discountenanced, I therefore join my learned brother in dismissing it.

Coming to the substantive appeal, the parties in this appeal took so much time and expended substantial energy, on the application of the provisions of Section 84 of the Evidence Act to extradition proceedings, the majority decision of the lower Court raised questions on the admissibility of computer-generated evidence even though the documents relied on in prosecuting the application cannot be held to be computer-generated, three letters and one affidavit.

I find this contention completely untenable having regard to the provisions of Section 17 of the Extradition Act, Cap E25 Laws of the Federation of Nigeria 2004. “The section provides as follows: 17(1) in any proceedings under this Act, any of the following documents, duly authenticated, shall be received in evidence without further proof. a. Any warrant issued in a Country other than Nigeria. b. Any adoption or statement on oath or affirmation in any such Country, or a copy of such deposition or statement. c.

Any certificate of conviction. (2) For the purpose of this Act, any such document as is mentioned in Subsection (1) of this Section, shall be taken to be duly authenticated. a. If apart from this section, it is authenticated in any manner for the time being provided by law, or b. If it complies with the requirements of Subsection (3) of this Section and is authenticated by the oath or affirmation of some witnesses or by being sealed with the official seal of a Minister of State of the Country in which it was issued or taken. (3) The requirements for this subsection are as follows: a.

A warrant must purport to be signed by a Judge, magistrate or officer of the Country in which it was issued. b. A document such as is mentioned in Subsection (1) (b) of this Section, must purport to be certified under the hand of a Judge, magistrate or officer of the Country in which it was taken to be the original or a copy as the case may be, of the document in question. c.

A certificate of conviction must purport to be certified by a Judge, magistrate or officer of the Country in which the conviction is stated to have taken place. (4) For the purpose of this Act, Judicial notice shall be taken of the official seals of the ministers of State of the Countries other than Nigeria.” In my humble view therefore, the admissibility of the documents constituting integral part of the request for extradition and surrender of the Respondent to the authorities of the United States of America must not form any serious discourse, apart from the fact that the documents are not the computer-generated evidence contemplated by Section 84 of the Evidence Act 2011, Section 17 of the Extradition Act has explicitly made such documents admissible in evidence in extradition proceedings once they are duly authenticated.

It must be made very clear here that, extradition proceedings must not be misconceived as full trial, the rigorous requirements for admissibility are reserved for the actual trial, Section 17 of the Extradition Act guarantees the source and injects watermark into the validity of the documents relied on to prosecute the application by the Attorney General, it is wrong to insist that the provisions of Section 84 of the Evidence Act 2011 must be swallowed hook line and sinker by the Court entertaining the application for extradition, the documents filed in support of the application are intended to support the applicant in his belief that his decision to file the application is not frivolous or premised on wrong conclusions, the documents support compliance with Sections 3, 9, and 11 of the Extradition Act by the requesting State and the Attorney General of the Federation, the Applicant.

Let me state that, in matters of extradition, usually the requesting State has to show that there is a prima facie evidence of guilt against the fugitive. An extradition proceeding is not a trial of the fugitive for the commission of the offence contained in the extradition request, nor a review of the validity of the conviction by the Court of the requesting Country. It is a grave misconception of the law to contend that extradition request requires rigid compliance with the provisions of Section 84 of the Evidence Act 2011.

The standard of proof required by the Extradition Act is a lesser standard of a prima facie evidence. The standard is that required before the Courts in Nigeria in committing an accused person to face trial which is the establishment of a prima facie case. See IKOMI V. STATE (1986) 5 SC. See also, CASES AND MATERIALS ON EXTRADITION IN NIGERIA UNITED NATIONS OFFICE ON DRUGS AND CRIME.

By the provisions of Section 9 of the Extradition Act, Cap E25 Laws of the Federation of Nigeria 2004, the Court is just required to commit the fugitive to prison or other lawful custody to await the Attorney General’s order for his surrender when the evidence adduced would according to the laws of Nigeria, justify committal of the prisoner for trial if the offence had been committed in Nigeria.

With these very few comments, I totally and wholly agree with my learned brother OGUNWUMIJU, JSC that Appellant’s appeal is richly meritorious and deserves to be allowed, it is hereby allowed, I also join my learned brother in holding that the Respondent’s cross-appeal is devoid of merit and deserves to be and is hereby dismissed. Appeal allowed, cross-appeal dismissed.

EMMANUEL AKOMAYE AGIM, J.S.C.: I had a preview of the judgment of my learned brother, Lord Justice, HELEN MORONKEJI OGUNWUMIJU, JSC. I agree with the reasoning, conclusions, decisions, including the orders therein.

Judgment

ADAMU JAURO, J.S.C. (Delivering the Leading Judgment): This is an appeal against the judgment of the Court of Appeal, Lagos division delivered on the 30th January, 2018 wherein the Court below affirmed the Appellant’s conviction and sentence for the offence of dealing with 200 grammes of Cannabis Sativa (otherwise known as Indian hemp) contrary to and punishable under Section 11 (c) of the National Drug Law Enforcement Agency Act Cap N30 L.F.N 2004.

BRIEF STATEMENT OF FACTS The brief facts giving rise to this appeal is that the Appellant was arraigned and tried on a one-count charge of dealing in Cannabis Sativa (otherwise known as Marijuana), a narcotic drug contrary to and punishable under Section 11(c) of the National Drug Law Enforcement Agency Act Cap N30 L.F.N 2004.

The charge at page 1 of the record of appeal reads thus: “That you, Tunde Balogun, Male, 22 years old on or about the 15th day of September, 2014 at Guinness Area in Agege Local Government Area of Lagos State within the jurisdiction of this Honourable Court, without lawful authority dealt in 200 grammes of Cannabis Sativa (otherwise known as

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Marijuana), a narcotic drug similar to Cocaine, Heroin, LSD e.t.c and thereby committed an offence contrary to and punishable under Section 11(c) of the National Drug Law Enforcement Agency Act, Cap N30 Laws of the Federation of Nigeria 2004.

The case of the Respondent as prosecution at trial was that on the 15th day of September, 2014, the Appellant was arrested in Agege area of Lagos State with 200 kilograms of cannabis sativa. That on the same day, the Appellant made an extrajudicial statement in Yoruba language which was interpreted into English language to officers of the NDLEA. The Appellant who was not represented by a legal practitioner pleaded guilty to the sole count and upon the close of trial, the Appellant was convicted and sentenced to 15 years imprisonment by Hon.

Justice Ofili-Ajumogobia of the Federal High Court sitting in Lagos State.

​Dissatisfied with the decision of the trial Court, the Appellant appealed to the Court below vide a notice of appeal filed on 13th March, 2017. The Appellant later filed an amended notice of appeal on 16th May, 2017 and same was deemed properly filed and served on 7th December, 2017.

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Upon hearing the appeal, the Court below in its unanimous decision delivered on the 30th January, 2018 dismissed the appeal and the judgment of the trial Court convicting and sentencing the Appellant to 15 years imprisonment with hard labour was affirmed. (See pages 85 – 118 of the record of appeal).

Miffed by the decision of the Court below, the Appellant invoked the appellate jurisdiction of this Court vide a notice of appeal dated February, 2018 and filed on the same date. (See pages 121 – 125 of the record of appeal).

In line with the Rules and Practice of this Court, parties filed and exchanged their respective briefs of argument. The Appellant’s brief of argument is dated 14th August, 2018 and filed on the same date. The said brief of argument was settled by CHIJIOKE O.P. EMEKA, ESQ. who at paragraph 5.1 of the brief distilled three issues for the determination of the instant appeal to wit: “1. Whether the Court below was right to have upheld the Appellant’s conviction based on his purported confessional statement which failed to comply with the mandatory provision of Section 17 of the ACJA, 2015? 2.

Whether the Court below was right

3

to have affirmed the appellant’s conviction based on his plea of guilt when the mandatory provision of the ACJA, 2015 were not complied with? 3. Whether the prosecution discharged the burden of proof against the appellant beyond reasonable doubt notwithstanding his purported plea of guilt by the appellant?”

APPELLANT’S ARGUMENTS AND SUBMISSIONS Under issue No. 1, counsel for the Appellant submitted that the trial Court and the Court below could not convict the appellant based on his confessional statement which failed to comply with Section 17 of the ACJA, 2015. Counsel reproduced the provisions of the section (supra) and submitted that the Court below ought to have found, in line with established precedents that the prosecution has a duty to comply with the mandatory statutory provision enacted to protect the accused persons from coerced confessions. Section 17 (1) (2) of ACJA provides that: “1.

Where a suspect is arrested on allegation of having committed an offence, his statement shall be taken, if he so wishes to make a statement.” 2. Such statement may be taken in the presence of a legal practitioner of his choice, or where

4

he has no legal practitioner of his choice, in the presence of an officer of the legal Aid Council of Nigeria of an official of a Civil Society Organization or a Justice of the Peace or any other person of his choice. Provided that the legal practitioner or any other person mentioned in this subsection shall not interfere while the suspect is making his statement, except for the purpose of discharging his role as a legal practitioner.”

It is the submission of counsel that it is the procedural law existing at the time of the hearing of a case, whether at the trial or on appeal, that applies to the prosecution and defence of a case. That it does not matter whether the procedural law came in force after the offence had been committed. He cited the case of ROSSEK V. A.C.B (1993) 8 NWLR (PART 312) 382 @ 475 A – B. Counsel submitted that the reasoning of the Court below to the effect that Section 17 (2) of the ACJA is inapplicable to the Appellant’s confessional statements because it was obtained in 2014 is misconceived.

He submitted further that the confessional statements were tendered at trial on 22nd October, 2015 after the commencement of ACJA in May

5

For ease of reference, I shall take the latitude to reproduce the section (supra). Section 356(2) of ACJA provides that: “Where the defendant pleads guilty and the Court is satisfied that he intends to admit the offence and shows no cause or no sufficient cause why sentence should not be passed, the Court shall proceed to sentence.”

​It is the submission of counsel that

6

there was no basis for the trial Court’s satisfaction as the appellant’s plea of guilt was invalid because there was no valid arraignment. He submitted further that there is nothing on record to show that the charge was read and explained to the Appellant in Yoruba language that he understood. He argued that the law is trite that where an accused does not understand the language of the Court, the Court has a duty to ensure that the accused is availed of the services of an interpreter ex gratia to facilitate communication between the Court and the accused. He cited the case of STATE V.

GWONTO (1983) 1 SCNLR 142. He contended that the Court below in affirming the appellant’s conviction held that it was the duty of the appellant to inform the Court of his illiteracy. This decision according to counsel was not in accordance with the provision of Section 271 (3) of the ACJA which states that: “The Court shall record the fact that it is satisfied that the defendant understands the charge or information read over and explained to him in the language that he understands and shall record the plea of the defendant to the charge or information as nearly as possible

7

in the words used by him.”

​He submitted that the trial Judge failed to enquire from the Appellant whether his plea of guilt is to the facts as stated by the prosecution as provided under Section 274(1)(c) of the ACJA. He submitted further that the Court below failed to see that the trial Judge did not comply with the law and there was no basis upon which he was satisfied that the Appellant intended to plead guilty.

It was the submission of counsel that there was no evidence that the Appellant, who was never represented by counsel, intended to admit the charge which he did not prima facie understand, not having been interpreted to him in Yoruba language. That the trial Court couldn’t have been satisfied with the appellant’s plea of guilt in the absence of a valid arraignment. It was the submission of counsel that if the trial Judge had made the requisite inquiry, he would have found that the appellant whose confession was written for him in Yoruba language was an illiterate.

He submitted further that by the ACJA, it was the Court’s duty to protect the Appellant by providing him with an interpreter in order to show the requisite satisfaction, much so, when

8

the appellant was not represented by counsel. He cited the case of ANYANWU V. STATE (2002) 13 NWLR (PART 783) 107 @ 137 – 138 G -B.

Counsel submitted that in this case, it did not appear anywhere in the record that the appellant was provided with an interpreter from arraignment to conviction. That the learned trial Judge failed to inquire from the appellant if he intended to admit the offence and that the appellant was also not informed of his constitutional rights which was more imperative he being an illiterate. He submitted further that the Court below wrongly placed the burden of compliance with all the mandatory provisions on the appellant contrary to the extant law.

Counsel contended that non-compliance with these provisions amounted to denying the appellant of his statutory rights and led to a miscarriage of justice.

​On issue No.3, it was the submission of counsel that the prosecution failed to prove the legal ingredients of the offence. That the trial Judge erred when he assumed that the dumping of exhibits recovered from the appellant by the prosecution amounted to proof of commission of the offence as charged and ultimately discharged the

9

burden placed on the prosecution. He submitted that the prosecution failed to prove that all the exhibits tendered were recovered from the appellant. That the confessional statements cannot ground the appellant’s conviction by reason of being Invalid and that same applies to all the exhibits tendered on the basis of the confession.

In the final analysis of the issues distilled by counsel, he urged the Court to allow the appeal, set aside the conviction and sentence of the Appellant and acquit the Appellant of the charge.

The Respondent’s brief on the other hand is dated 12th March, 2019 and filed on 14th March, 2019. The brief was settled by FEMI AMOS OLORUNTOBA, ESQ. Learned counsel for the Respondent at paragraph 4.2 of the Respondent’s brief of argument adopted issues 1 and 3 distilled by the appellant for the resolution of the instant appeal.

RESPONDENT’S ARGUMENTS AND SUBMISSIONS Arguing issue No. 1, it was the submission of counsel for the Respondent that the Court below was right in affirming the conviction of the Appellant because the confessional statements were made in September, 2014, long before the commencement of the ACJA.

10

He submitted further that the recording of the Appellant’s statement was a concluded exercise and there was no way the newly enacted ACJA could apply in retrospect to the statement. He contended that aside the appellant’s confessional statement, there were also exhibits tendered which were not objected to and upon which the trial Court relied on to find the appellant guilty coupled with his plea of guilt. That even where the confessional statements were expunged, the conviction and sentence of the appellant can be sustained on the other evidence adduced on record.

He referred the Court to the cases of THE STATE V. OGBUBUNJO (2001) NWLR (698) 576 @ 606; IKUMONIHAN V. STATE (2018) LPELR – 44362 (SC).

​On issue No. 3, it was the submission of counsel that when the charge was read on the 12th March, 2015, the appellant did not object or complain that he did not understand the proceedings. That if indeed the appellant was an illiterate who could not speak English and required an interpreter, an opportunity was provided for the appellant to speak out when the case came up again on 22nd October, 2015. He contended that the appellant did not complain that he did

11

not understand the proceedings and that he needed interpretation of the proceedings.

Counsel submitted that when the charge was read, the appellant could have raised the issue of illiteracy and the need for an interpreter. That the record states that the appellant said he understood and he pleaded guilty. He submitted that the contention of the appellant’s counsel that Exhibit PD2A (the confessional statement recorded in Yoruba language) lend credence to the fact that the Appellant is an illiterate is unfounded. That it was the duty of the Appellant to inform the Court that he does not understand the language in which the trial is being conducted. He cited the cases of MADU V.

THE STATE (1997) 1 NWLR (PT 482) 386; (1997) LPELR – 1808 (SC) and UMUOLO V. THE STATE (2003) 3 NWLR (PT 808) 493; (2003) LPELR – 7145 (CA).

Counsel submitted that unless the appellant informs the Court that he does not understand the language of the Court and that he required an interpreter, failure to provide an interpreter may not be fatal.

​On the validity of the appellant’s arraignment, counsel submitted that the appellant, who was arraigned on 12th March, 2015

12

before the commencement of the ACJA, was validly arraigned and he appreciated the nature of the charge against him, he admitted he was guilty and based on the admitted facts, the conviction and sentence of the appellant are sustainable in this Court as all the issues raised concerning Section 274(1) and 369 of the ACJA are irrelevant to the proceedings and this appeal. That the appellant elected summary trial under Section 33 of the Federal High Court Act by pleading guilty to the charge preferred against him and that in cases of this nature, the judge is entitled to convict summarily.

On the burden placed on the prosecution in a summary trial where the accused pleads guilty to the charge, counsel referred the Court to the case of the SAMUEL AYO OMOJU V. FRN (2008) ALL FWLR pt. (415) 1656 at 1674. Counsel for the Respondent submitted that a plea of guilt by the appellant in open Court concluded his trial, and what is left to be done by the trial Court in the circumstance, is to convict and sentence him accordingly if the Court is satisfied with his plea.

​He submitted further that the appellant has not satisfied the conditions upon which he can appeal against

13

his conviction and sentencing after taking a plea of guilt. The conditions which are: 1. That the appellant did not appreciate the nature of the charge or did not intend to admit he was guilty of it or; 2. That upon the admitted facts, he could not in law, have been convicted of the offence charged.

Flowing from the hills of the above submissions and arguments, learned counsel for the Appellant urged the Court to dismiss the appeal for lacking in merits.

RESOLUTION I have perused the record of appeal compiled and duly transmitted in this case; the briefs of argument filed by both parties as well as the issues distilled for determination across the divide. Thus, having considered the issues so formulated by the parties and the grounds of appeal duly filed by the Appellant, I am of the opinion that the understated issue would suffice in the determination of this appeal: Whether the prosecution discharged the burden of proof against the Appellant beyond reasonable doubt to warrant the affirmation of his conviction and sentence by the Court below?

The Appellant was arraigned and tried on a sole count charge of dealing with

14

cannabis sativa (otherwise known as marijuana) contrary to and punishable under Section 11(c) of the National Drug Law Enforcement Agency Act Cap N30, L.F.N. 2004. (See page 1 of the record of appeal).

The section provides: “11 (1) any person who without lawful authority, (c) sells, buys, exposes or offers for sale or otherwise deals in or with the drugs particularly known as cocaine, LSD, heroin or any other similar drugs shall be guilty of an offence and liable on conviction to be sentenced to imprisonment for life” Section 11 (2) (b) further provides: “The penalties for offences under Subsection (1) of this section shall: (b) In respect of offences under paragraph (c), (f), (g) and (i) thereof, be imprisonment for a term not less than fifteen years and not exceeding twenty-five years.” It is the law that in order to secure a conviction for unlawful possession of Indian hemp, otherwise known as cannabis sativa, the prosecution must establish the following beyond reasonable doubt as required by Section 135 of the Evidence Act, 2011: 1.

That the substance was in the possession of the accused;

15

In the light of the Appellant’s plea of guilt, and in a bid to discharge the burden of proof imposed on it by law, the prosecution tendered the following as exhibits: 1. Packing substance form bearing the name of the Appellant and dated 15/09/14 – Exhibit PD1. 2. Statement of the Appellant in Yoruba language dated 15/09/14 – Exhibit PD2(a). 3. Translation of Exhibit PD2(a) into English language and thumb printed by the Appellant dated 15/09/14 – Exhibit PD2(b). 4. Bulk Exhibit in a white cellphone 6 gramme with dried weeds weighing about 200 gramme with

16

some wrapped in white paper – Exhibit PD3. 5. Certificate of Scientific Aid dated 15/09/14 – Exhibit PD5. 6. Large Brown Envelope with Ref No. NDLEA/SD/2014/1865 – Exhibit PD6.

In the instant appeal, there are two issues that are crucial for determination i.e. firstly, the validity of the appellant’s plea of guilt and the consequences thereof and secondly, the validity of the appellant’s arraignment in the light of the absence of an interpreter during trial. The Appellant at page 3 of the record of appeal pleaded guilty to the charge proffered against him. In my view, he elected the summary trial procedure under Section 33(2) of the Federal High Court Act.

A summary trial is therefore a short proceeding that does away with the rigours of a full trial, hearing of witnesses or tendering of documents. It is a proceeding that settles a controversy or disposes of a case in a relatively prompt and simple manner. It entails immediate action without following the rigmarole in normal legal procedure. As a matter of procedure, summary trial allows for conviction of an accused person based on his or her admission of guilt to an

17

indictable offence other than capital. See USAINI MOHAMMED V. COMMISSONER OF POLICE (2017) LPELR – 43837 (SC); MOHAMMED V. FRN (2018) LPELR – 43908 (SC); RALPH UWAZURUIKE V. A.G. FEDERATION (2013) LPELR – 20392; BAALO V. FRN (2016) LPELR – 40500 (SC). In the instant appeal, after the Appellant pleaded guilty to the charge, the trial Court at page 3 of the record of appeal, upon being satisfied that the Appellant understood the charge, recorded his plea as nearly as possible in the words used by him in compliance with Section 218 of the CPA, being the extant law as of the date of arraignment.

The said section provides that: “If the accused pleads guilty to an offence with which he is charged, the Court shall record his 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 pleaded guilty, the Court shall convict him of the offence and pass sentence upon or make an order against him unless there shall appear sufficient cause to the contrary.” ​It is imperative to state that the appellant’s plea of guilt connotes a lot of things against him. That

18

plea of guilt is personal to him and he is bound by it. By that plea, his fundamental right to presumption of innocence and defence to the charge as enshrined in the Constitution, became legitimately scuttled. I am of the view that the plea of guilt in open Court, amounts to a voluntary oral confession and this oral confession, has more evidential value than any other evidence that may be adduced against an accused person by the prosecution. In the case of OMOJU V.

FRN (2008) LPELR – 2647(SC), Tobi JSC (of blessed memory), considered the effect of an accused person’s plea of guilt on the burden placed on the prosecution where my noble Lord held thus: “The law is elementary that if an accused person pleads guilty, the burden of proof placed on the prosecution becomes light, like a feather of an ostrich. It no longer remains the superlative and compelling burden of proof beyond reasonable doubt.

After all, the guilty plea has considerably shortened the distance and brought in some proximity the offence and mens rea or actus reus of the accused as the case may be. That makes it easier to locate causation or causa sine qua non.”

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In the case of F.R.N. v.

KAYODE (2019) 6 SC (Pt.1) 165 at 188, this Court, per Galumje, JSC held as follows: “The law is settled that an Accused person who pleads guilty to a criminal charge can be convicted summarily if the Court is satisfied that he intended to admit the truth of all the essentials of the offence.” Without mincing words, I am of the view that in the light of the Appellant’s plea of guilt, all the submissions and arguments of counsel in respect of the admissibility of his confessional statements being recorded in breach of ACJA and the issue of interpretation, becomes impotent and devoid of any judicial substance.

Logically, what argument can be offered challenging the admissibility of a confessional statement made ex facie curie that will take precedence over a plea of guilt made in facie curie? An extra judicial statement in accordance within the dictates of common sense cannot take credence over a judicial admission. Assuming the Appellant’s confessional statements in Exhibit PD2 and PD2a were expunged from the record, what difference does that make on the propriety of his conviction in view of his plea of guilt? None. In other words, the Appellant’s

20

plea of guilt has superseded the issue of their admissibility and the consequences. This is better understood in the light of the fact that a plea of guilt is superior in evidential value to an extrajudicial statement like Exhibits PD2 and PD2a. The Appellant’s plea of guilt is as good as judicial confession, his valid admission of the offence in the charge. A plea of guilt brings the trial to an end in non-capital offences, such in the instant appeal, and what is left to be done is for the judge to convict and sentence him.

In the instant appeal, what more could be the best form of evidence against the Appellant if not his plea of guilt? This plea to my mind has more credence than his confessional statement or any eye witness testimony. See AKPA V. STATE (2008) 14 NWLR (PT. 1106) 72; SUNDAY V. FRN (2018) LPELR – 46357(SC). Having pleaded guilty to the charge, the Appellant cannot be heard to be making a different case on appeal as this would only amount to approbating and reprobating, a conduct which the Court frowns at. See the case ofNKIE V.

FRN (2014) ALL FWLR (PT. 754) 186. ​The Appellant’s counsel also made heavy weather on the failure

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of the trial Court to avail the Appellant with the services of an interpreter ex gratia to facilitate communication between the Court and the Appellant. There is no doubt that a person charged with a criminal offence before a Court of law is entitled to be provided with the service of an interpreter where he does not understand the language of the Court, which in the trial Court, is English Language.

This is what is provided in Section 36 (6) (e) of the Constitution of the Federal Republic of Nigeria (as amended) as part of the safeguards of ensuring fair hearing to a person accused of an offence. The importance of interpreting the proceedings of the Court to the accused person in the language he understands and from the accused person to the Court in the language spoken by the Court, cannot be overemphasized.

As a matter of fact, the right of an accused person in this regard goes beyond understanding the charge and the whole trial proceedings against him but for him to also be able to fully participate in the trial. On the principles relating to the right of an accused person to an interpreter, see the cases of THE STATE V. SALIHU MOHAMMED GWONTO (1983) LPELR

22

– 3220 (SC); UMARU SUNDAY V. FRN (2013) LPELR – 21092 (CA); TANKO IKO V. THE STATE (2014) LPELR – 23488 (CA). Appellant’s counsel is vehemently holding unto the position that it was the duty of the trial Court to make available to the Appellant the services of an interpreter because he is an illiterate. It must be pointed out that where the accused does not understand the language used at his trial, it is his duty or his counsel’s duty to bring to the notice of the Court at the earliest opportunity, that he does not understand the language used at trial.

I think the duty of ensuring that the right thing is done is not only on the trial Judge. It is a duty as well on a party to a case or his counsel if represented by one. In the instant appeal, there was nowhere in the record that the Appellant informed the trial Court that he does not understand the language of the Court and would be needing the services of an interpreter. The record of appeal at page 3, bears semblance of the fact that the Appellant understood the charge read to him and he pleaded guilty thereon. In the case of SAMSON NKEMJI UWAEKWEGHINYA V.

THE STATE (2005) LPELR – 3442 (SC) also

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relied on by the Court below, this Court Per, Musdapher, JSC held that: “If the accused does not ask for an interpreter, the failure to supply one would be treated as a matter of procedure and a conviction may only be set aside if the failure to supply an interpreter had led to a miscarriage of justice and that if the accused is represented by counsel, the objection must be taken at the trial in the first instance, and not on appeal.” The fact that the accused does not understand the language in which the trial is being conducted is a fact well known to the accused and it is for him or his counsel to take the initiative of bringing it to the notice of the Court at the earliest opportunity.

If he does not claim the right at the proper time before any damage is done, he may not be able to have a valid complaint afterwards, for example on appeal. Where the accused person refuses to inform the Court that he does not understand English Language, it will be too late for him to seek protection under Section 36(6)(e) of the Constitution to have his conviction set aside through the backdoor. See MALLAM MADU V. STATE (1997) 1 NWLR (Pt. 487) 386 at 401;

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STATE V. GWONTO (1983) 1 SCNLR 142, LOCKNAN & ANOR V. STATE (1972) ALL NLR 498; FRANCIS DURWODE V. STATE (2000) LPELR – 973(SC); IBRAHIM V. STATE (2013) LPELR – 21883(SC). Flowing from the above, I am of the view that there is nothing on the record to support the contention of the Appellant’s counsel that the Appellant does not understand English Language and that the failure of the trial Court to provide him with an interpreter rendered his arraignment invalid.

Contrary to the contention of the Appellant’s counsel, it is my opinion that the fact that the accused stated that he understood the charge puts it beyond peradventure that he understands English Language.

In conclusion, I agree with the decision of the Court below where it held at page 111 of the record of appeal that: “In addition, what transpired at the trial Court was a summary trial procedure, where upon a plea of guilt by the Appellant, the prosecution was called upon to review the facts and state the elements of the offence alleged against the Appellant, and he was convicted and sentenced accordingly. The situation would have been different where witnesses had been called and a full

25

trial done.” In view of the Appellant’s plea of guilt, the duty imposed on the Respondent to prove the guilt of the Appellant beyond reasonable doubt became lessened and I am left with no doubt that the Appellant committed the offence for which he is charged and pleaded guilty to. The consequence of the above findings by this Court is that the appeal fails and same is hereby dismissed.

The decision of the Court of Appeal, Lagos Division delivered on the 30th January, 2018 wherein the Court below affirmed the Appellant’s conviction and sentence for the offence of dealing with 200 grammes of Cannabis Sativa contrary and punishable under Section 11 (c) of the National Drug Law Enforcement Agency Act Cap N30 L.F.N 2004 is hereby affirmed together with the sentence of 15 years term of imprisonment.

NWALI SYLVESTER NGWUTA, J.S.C.: I read in draft the lead Judgment just delivered by my learned brother, Jauro, JSC. There is no evidence on record that the appellant did not understand, or had any illusion about the charge read to him when he stated in clear terms and without any prompting; “I understand the charge and I

26

plead guilty.”

Learned counsel for the appellant impugned the proceedings leading to the conviction of the appellant based on his interpretation of Sections 17 (2), 271 (3) and 356(2) of the Administration of Criminal Justice Act (ACJA) 2015. I hasten to state that the ACJA which came into effect in May, 2015 has no retrospective effect. Appellant was arraigned on 12/3/2015.

The saving provisions in Section 492 of the Act state: “492 (1) Nothing in this Act shall affect the use or validity of any form in respect of a proceeding or an offence specified under the provisions of a written law or the validity of any other procedure provided by any other written law. (2) Nothing in this Act shall affect the validity of any charge, information or proceeding initiated or commenced under any other law in so far as the proceeding was initiated or commenced before this Act came into force.” May I restate that the ACJA came into force in May 2015 after the appellant had been arraigned in March 2015.

Learned counsel’s argument based on the ACJA does not avail the appellant.

​For this and the fuller reasons in the Lead judgment I also

27

dismissed the appeal. Consequentially, I also affirm the judgment of the Court below which affirmed the judgment of the Trial Court. Appeal dismissed.

JOHN INYANG OKORO, J.S.C.: My learned brother, Adamu Jauro, JSC obliged me a draft of the lead judgment just delivered and I am in complete agreement with the reasons and conclusion reached therein. I adopt the judgment as mine. I will make only a few comments of my own in support of the judgment and for purpose of emphasis only.

The law is settled that if an accused person pleads guilty to an offence with which he is charged, the Court shall record his 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 had pleaded guilty, the Court shall convict him of that offence and pass sentence against him unless there appear sufficient cause to the contrary. See Daniel v. F.R.N (2015) 13 NWLR (pt. 1475) 119; Kolo v. COP (2017) 9 NWLR (pt. 1569) 118.

In the instant case, the accused person was arrested for dealing in 200 grammes of Marijuana. He made extra judicial

28

statement in Yoruba admitting to the commission of the offence. The said statement was interpreted into English language and both were admitted as Exhibits PD2A and PD2B, upon his subsequent arraignment in Court on 12/3/2015, the following was recorded as proceedings of the Court: – O.

Kalu appears for the prosecution – Accused person in Court but not represented. – Kalu: One count charge dated 25/09/14 read and explained to the accused person in order for him to take his plea. – Court: Charge read. – Accused person: I understand the charge and I plead “guilty.” – Kalu: In view of Accused person’s plea I ask for a date for summary review of Accused person’s charge and also for his remand in prison custody. Date for return date. – Court: Adjourned to 14/4/15 for hearing.

All orders prayed for by prosecutor granted.” After the review of evidence and consequent summary conviction by the learned trial judge, the accused person entered allocutus in the following words before sentencing. “l will not do it again. I did conductor work at Agege, the person I did conductor work for introduced me to Bintin.”<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

</br<>

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It was after the allocutus that the Appellant was sentenced to 15 years imprisonment with hard labour. The requirement is that the charge must be read over to the accused and explained to him in the language he understands and to the satisfaction of the Court before being called upon to make his plea. SeeErekanure v The State (1993) 5 NWLR (pt 294) 385; Kajubo v. The State (1988) 1 NWLR (pt 73) 721; Effiom v. State (1995) 1 NWLR (pt 373) 507.

In the instant case, I am of the view that the learned trial Judge satisfied the requirements of the law before sentencing the Appellant upon his plea of guilty. The Court did not need to call evidence after the Appellant had made the plea. The only thing left for the Court to do was to convict him summarily. Calling for a review of evidence from the prosecution, was to my mind over indulging the Appellant for which the learned trial Judge deserve commendation.

For all that I have said above and the fuller details contained in the lead judgment, I am unable to see any reason to interfere with the concurrent findings of the two lower Courts as the Appellant was not in anyway misled at the trial.

30

The judgment of the two lower Courts are not perverse and is hereby affirmed by me. This Appeal is bereft of merit and is accordingly dismissed.

IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.: I have had the opportunity of reading, before now, the draft of the judgment authored and just delivered by my very learned brother, the Honourable Justice Adamu Jauro, JSC. I concur with the reasoning therein reached, to the conclusive effect that the instant appeal is grossly unmeritorious, thus ought to be dismissed by the Court.

In the instant appeal, I am on all fours with my learned brother’s view point, to the effect that a sole issue is very much for determination, viz: “Whether the prosecution discharged the burden of proof against the Appellant beyond reasonable (doubt) to warrant the affirmation of his conviction and sentence by the Court below.”

The sole issue in question is distillable from, and predicated upon, the five grounds of the original notice of appeal. The Appellant was arraigned before the trial Federal High Court Lagos upon a one count charge of dealing in 200 grammes of Cannabis Sativa

31

(otherwise known as Marijuana), a narcotic similar to Cocaine, Heroin, LSD etc, without lawful authority. The offence is contrary to and punishable under Section 11(c) of the National Drug Law Enforcement Agency Act CAP. N30 Laws of the Federation of Nigeria, 2004 viz: 11 (1) Any person who without lawful authority: (c) sells, buys, exposes or offers for sale or otherwise deals in or with the drugs particularly known as Cocaine, LSD, heroin or any other similar drugs shall be guilty of an offence and liable on conviction to be sentenced to imprisonment for life.

Likewise, it is provided under Section 11(2)(b) of the said Act thus: 11 (2): The penalty for offences under Subsection (1) of this section shall: (b) in respect of offences under paragraphs (e), (f), (g) and (i), thereof, be imprisonment for a term not less than fifteen years and not exceeding twenty-five years. Instructively, for the prosecution to secure a conviction under the said Section 11(1) and (2)(b) of the NDLEA Act (Supra), it must prove the charge against the Defendant (Appellant) beyond reasonable doubt: 1. That the alleged substance was found in

32

the possession of the Defendant (Appellant). 2. That it was knowingly in his possession. 3. That the said substance was proved to be Cannabis Sativa (Indian Hemp); and 4. That the defendant (Appellant) was in possession of the substance without any lawful authority.

Invariably, the term proof beyond reasonably as implored in Section 135 of the Evidence Act, denotes proof to moral certainty or standard. Thus, such proof as accords to the conscience of the trial judge as a reasonable Judge, that the crime so charged has indeed been committed by the defendant, thereby leaving no other reasonable conclusion possible. See AFOLALU VS THE STATE (2010) 16 NWLR (Pt. 1220) 584; DAIRO VS. THE STATE (2018) 7 NWLR (Pt. 1619) 419 paragraphs C – D.

The guilt of an accused person in a criminal case, as the instant one can be proved beyond reasonable doubt by way of a confessional statement, or direct eye witness account, or circumstantial evidence, from which the trial Court can make an inference in regard to the culpability of the defendant. See ITU VS. THE STATE (2016) All FWLR (Pt. 823) 1983 @ 1989; IGBIKIS VS. THE STATE (2019) All FWLR (Pt.

33

883) 1405 @ 1410; 1424 paragraphs E – F.

It is crystal obvious on pages 3 – 4 of the Record of Appeal that the one count charge was duly read and explained to the Appellant on 12/03/2015 where upon the Appellant pleaded thus: “I understand the charge and I plead guilty.”

Then the prosecution counsel, Kalu Esq. submitted: “Kalu: In view of Accused person’s plea, I ask for a date for summary review of Accused person’s charge and also for his remand in prison custody. Date for return date.”

The trial Court accordingly adjourned the case to 14/04/15 for hearing.

Eventually, when the case came up on 24/102016, the following items were tendered by the prosecution and accordingly admitted by the trial Court: “Court: Admitted as Exhibit and marked as follows: (a) Packing of substance form bearing the name of Defendant and dated 15/09/14 Exhibit PD1. (b) Statement of Defendant in Yoruba language dated 15/09/14 – Exhibit PD2(a). (c) Translation of Exhibit PD2(a) into English language and thumb printed by Defendant dated 15/09/14 Exhibit PD2(b). (d) Bulk Exhibit in a white cellphone 6 grammes with dried weeds

34

weighing about 200 grammes with some wrapped in white paper Exhibit PD3. (e) Certificate of Test Analysis dated 15/09/14 – Exhibit PD4. (f) Request for Scientific Aid dated 15/09/14 – Exhibit PD5. (g) Large brown sealed Envelope Ref No: NDLEA/SD/2014/1865 Exhibit PD6.

Exhibit PD6 was opened in open Court, thereby warranting the trial Court to so order: Court: “Stapled transparent pouch bearing the name of the Defendant with laboratory No. NDLEA/SD/2014/865 dated 2/12/14 is hereby admitted and marked as exhibit PD7. Drug Analysis report dated 2/12/14 Exhibit PD8.

It was at this point in time that the prosecution counsel urged upon the trial Court to convict the Appellant.

Whereupon, on 10/12/2015 in question, the Court below delivered the vexed judgment, thereby convicting and sentencing the Appellant to the following effect: The Accused person was arraigned before this Court upon a one count charge of dealing in 200 grammes of Cannabis Sativa, a nicotine, Heroin, LSD etc. the content of the charge dated the 25th day of September, 2014 … The basic principles in a criminal trial is that the prosecution

35

must prove all the ingredients of the offence charged and the burden of such proof never shifts. The stand of the proof required is proof beyond reasonable doubt … In the light of the plea of the Accused person and based on my findings from the exhibits tendered, I am satisfied that the Accused person committed the offence under Section 11 (c) of the National Drug Law Enforcement Agency Act Cap. N30 Laws of the Federation of Nigeria 2004. Accordingly, I hold that the Accused person is guilty of the crime as charged.

In the allocutus thereof, the Appellant pleaded thus: “ALLOCUTUS: I will not do it again. I did conductor work at Agege, the person I did conductor work for introduced me to Bintin.”

Consequent upon which, the trial Court proceeded to pass sentence upon the Appellant: (COURT): Taking into consideration the plea of allocutus by the Accused person as well as the fact that he has been in prison custody since September, 2014, I hereby sentenced Mr Tunde Balogun (The Accused person) to a term of 15 years imprisonment with hard labour with effect from the 14th September, 2014. This is my judgment as read out in open Court.

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Thus, it was on the basis of the above judgment of the trial Court, that the Court below on appeal thereto, came to the finding to the conclusive effect: Without doubt, the prosecution has discharged the onus of proving the guilt of the Appellant beyond reasonable doubt that the Appellant was in possession of the narcotic drug at the time of his arrest. Therefore, the learned trial judge was right when he convicted the Appellant as I did in the instant case. As a result, the third issue is also resolved in the Respondent’s favour.

As a result, the Appellant’s appeal lacks merit in its entirety and it is hereby dismissed. The conviction and sentence of the Appellant by the Federal High Court, coram OFILI-AJUMOGOBIA, J. on 10th December, 2015 is hereby affirmed.

At pages 11 – 12 paragraph 6.27 of the brief thereof, the Appellant vehemently argues: 6.27. The Court below failed to see that the weight placed on Exhibits PD2A and PD2B formed the bedrock of the Appellant’s conviction. If the lower Court had invalidated the alleged confession, it would have found that there was no satisfaction upon which the purported plea of

37

guilt laid and that it was highly improbable that the Appellant committed the offence for which he was convicted.”

It is not at all controversial, that what happened at the trial Court leading to the instant appeal could aptly be described as a summary trial. It is trite that the word ‘summary’, as an adjective, denotes short, concise, summary account of an event; immediate; done without delay. Thus, the term ‘summary trial’ denotes a non-jury proceeding that settles a controversy, or disposes of a case, in a relatively prompt and manner. See BLACK’S LAW DICTIONARY 7TH Edition @ 1222. It was aptly reiterated by this Court that: “Section 277 of the Criminal Procedure Act provides for summary trials.

Summary trials are short and fast. Cases tried summarily, are disposed in a prompt and simple manner. Attached to a charge to be tried summarily are scanty summary of the evidence the prosecution would rely on. Put in another way, it is not all the evidence relied by the prosecution that is made available to the accused person before trial. See UWAZURUIKE VS. AG FED. (2013) LPELR – 20392 (SC) Per Rhodes-Vivour, JSC @ 17 paragraphs C -F;

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A -F; FRN VS. IBORI (2014) LPELR 23214 (CA) Per Saulawa, JCA (as he then was) @ 49 - 50 paragraphs D - C.

In the instant case, there is no doubt that the conviction of the Appellant was not merely predicated on the confessional statement thereof (Exhibits PD2 and PD2A - the Yoruba and English versions). Undoubtedly, as aptly stated by the trial Court, the guilty plea of the Appellant and the various exhibits tendered have had the combined effect of satisfying the trial Court that the prosecution had proved the charge beyond reasonable doubt against the Appellant under Section 11 (c) of the National Drug Law Enforcement Agency Act, CAP. N30 Laws of the Federation of Nigeria, 2004.

Thus, the Appellant pleaded guilty to the charge in open Court, when same was read and explained thereto, and having failed to object to the tendering of the 200 grammes of the Cannavis Sativa (otherwise known as Marijuana) along with other exhibits, the trial Court was right to convict and sentence him accordingly. The Court below was therefore, equally right to affirm the conviction and sentence passed upon the Appellant by the said trial Court. See

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OLOYE VS. THE STATE (2018) LPELR – SC 325/2014; SUNDAY VS. FRN (2018) LPELR – 46357 (SC).

Hence, against the backdrop of the foregoing postulation, and the detailed reasoning and conclusion reached in the lead judgment just delivered, I have no hesitation in coming to the inevitable conclusion, to the effect that the present appeal is grossly lacking in merits, and same is hereby dismissed by me. The vexed judgment of the Court of Appeal delivered on the 30th day of January, 2018 in appeal No. CA/K/514c/2017, is hereby affirmed.

EMMANUEL AKOMAYE AGIM, J.S.C.: I had a preview of the draft judgment of my learned brother, Lord Justice Adamu Jauro, JSC. I completely agree with the reasoning, conclusions, decisions, and orders therein.

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Judgment

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C. (Delivering the Leading Judgment): The appellant was arraigned before the Federal High Court, Abuja, along with one Saheed Oluremi Adewumi on a six-count charge, of various offences under the Terrorism (Prevention) Act, 2011, as amended.

The charges are as follows: Count 1 That you ABDULLAHI MUSTAPHA BERENDE, between September 2011 and December, 2012 at Tehran in Iran rendered support for an act of terrorism to wit: by provision of material assistance and terrorist training together with others now at large on the use of firearms, explosives and other related weapons and thereby committed an offence contrary to Section 5(1) (a) of Terrorism (Prevention) Act 2011 as amended and punishable under Section 5(1) of the same Act.

Count 2 That you ABDULLAHI MUSTAPHA BERENDE, between September 2011 and December 2012 at Tehran in Iran had information which you know to  be of material assistance about the terrorist training at Tehran in Iran and the subsequent spying of Chabbad house Lagos and AA Consulting Lagos and you failed to disclose such information to the law enforcement officers as soon as

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reasonable practicable, and therefore committed an offence punishable under Section 8(1) of Terrorism (Prevention) Act 2011 as amended.

Count 3 That you ABDULLAHI MUSTAPHA BERENDE, between September 2011 and December 2012 at Iran and Dubai UAE received from AMIR, an Iran terrorist, (now at large) the sum of four thousand dollars ($4,000), three thousand, five hundred Euros (€3,500) and twenty thousand dollars ($20,000) respectively to facilitate the commission of terrorist act and therefore committed an offence contrary to Section 13(1) (a) (i) of Terrorism (Prevention) Act 2011 as amended, and punishable under Section 13 of the same Act.

Count 4 That you ABDULLAHI MUSTAPHA BERENDE, between September 2011 and December 2012 at Lagos, Ilorin Nigeria, Tehran in Iran, agreed to recruit persons for AMIR, an Iranian Terrorist, now at large, and did recruit the following: Saheed Oluremi Adewumi, Sulaiman Olayinka Saka and Biliaminu Mohammed Yusuf and you therefore committed an offence punishable under Section 10 of Terrorism (Prevention) Act 2011 as amended. Count 5 That you ABDULLAHI MUSTAPHA BERENDE and you SAHEED OLUREMI

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ADEWUMI, and others now at large between September 2011 and December 2012 at Lagos conspired to commit terrorist act to wit: rendering support to terrorism, concealing of information about acts of terrorism, recruitment for terrorism purposes and therefore committed an offence punishable under Section 17 of Terrorism (Prevention) Act 2011 as amended.

Count 6 That you ABDULLAHI MUSTAPHA BERENDE and you SAHEED OLUREMI ADEWUMI, between September 2011 and December 2012 at Lagos, through the technological devices including camera supported the commission of terrorist act and thereby committed an offence punishable under Section 12 of Terrorism (Prevention) Act 2011 as amended.

They were arraigned on 28th August, 2013. They both pleaded not guilty to each of the six counts. The trial commenced on 22nd October, 2013. The first prosecution witness was one James Eneizi from the Department of State Services (DSS). He testified that the DSS received some intelligence reports that some Nigerians were recruited by Iranians and trained in acts of terrorism and returned to Nigeria to perpetrate such activities. He testified that the officer in charge of

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counter terrorism directed that the report be investigated. It was in the process of the investigation that the appellant was arrested in Ilorin on 17th December, 2012. The second accused was arrested a week later. The home of the appellant was searched. Some media items, the sum of US$5,800 and other incriminating items were recovered. He was taken to the national headquarters of the DSS in Abuja.

PW1 testified that two officers were assigned to interview the suspects and to witness their statements, which they wrote themselves. He stated that the appellant made two statements on 8/2/13 and 25/2/13. He was brought before him and he confirmed that he made the statements voluntarily, he (PW1) endorsed them. At the point of tendering the statements in evidence, an objection was raised on the ground that the statements were not made voluntarily. A trial-within-trial was conducted to determine the truth or otherwise of the assertion.

In a considered ruling delivered on 22/10/2014, the Court held that the statements were made voluntarily and admitted them in evidence as Exhibits B and B1. The Court held, inter alia: “It is clear that one of the easy

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ways of determining the voluntariness of a confessional statement said to have been made by an accused person is when the said statement is taken before a Superior Police Officer for confirmation and countersigning. It is my humble view that if the accused is objecting to the voluntariness of a confessional statement said to have been made by him, he would have ample opportunity during confirmation before a Superior Police Officer to object to its voluntariness.

In the case at hand, the 1st and 2nd accused persons have admitted being taken before TPW2 for the confirmation of their confessional statements, but none of them testified on objecting to the voluntariness of their statements before TPW2. Having regard to the pronouncement of the Supreme Court in the Alarape’s case, supra, the confirmation of the 1st and 2nd accused persons’ statements by TPW2 has made the determination of the voluntariness of their statement a lot more easier.

In conclusion, I am of the firm view that the two statements sought to be tendered have passed the test of veracity and voluntariness laid down by law and as stated by the Supreme Court in the cases of Alarape Vs The State and Akpan Vs The State, both supra.

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…the said statements are hereby admitted as Exhibits B, B1 and C, C1 respectively.”

The appellant was dissatisfied with the ruling and appealed to the Court below. The appeal was unsuccessful, hence the instant appeal. The notice of appeal filed on 18/6/2009 but deemed filed on 8/10/20 contains 10 grounds of appeal. At the hearing of this appeal on 11th March, 2021, M.I. HANAFI ESQ., adopted and relied on the appellant’s brief filed on 20/11/2020 in urging the Court to allow the appeal. CHIOMA ONUEGBU ESQ., Principal State counsel, Federal Ministry of Justice, adopted and relied on the respondent’s brief filed on 4/2/21, in urging the Court to dismiss the appeal.

The appellant formulated 3 issues for determination, to wit: 1. Was the Court of appeal correct when it affirmed the ruling of the learned trial Judge that the prosecution proved that the two extra-judicial statements of the appellant were made voluntarily and therefore admissible? (Grounds 1, 2, 4, 5, 6, 7, 8 and 9). 2. Whether the Court of appeal Justices were correct when they held that grounds 13, 17, 18 and 19 of the

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grounds of appeal raise fresh issues not raised before the trial Court? (Ground 3). 3. Did the Court of appeal consider the issue raised in grounds 3, 5, 6, 7, 8, 9 and 10 of the grounds of appeal before it and whether the failure did not occasion a miscarriage of justice? (Ground 10).

The respondent raised a sole issue for consideration by this Court, namely: Whether this Court can re-evaluate the evidence before the trial Court or upturn the concurrent findings of the trial and lower Court in the circumstances of this case?

I am of the view that the appellant’s issue 1 is sufficient to resolve this appeal. I adopt it.

SOLE ISSUE Whether the Court of appeal was correct when it held that the appellant’s extra-judicial statements were voluntarily made?

In support of this issue, learned counsel referred to the characteristics of a confessional statement as provided in Sections 28 and 29 of the Evidence Act, 2011 and as defined in several decided authorities, including Ikemson Vs The State (1989) 3 NWLR (Pt.110) 455 @467 H; State vs Gwangwan (2015) 13) 92 @ NWLR (Pt.1477) 600 @ 624F; Gbadamosi vs The State (1992) 9 NWLR

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(Pt. 266) 465 @ 489 B – C; Iregu vs The State (2013) 12 NWLR (Pt.1367) 92 @ 117 G – H. Learned counsel submitted that the evidence of the respondent at the trial within trial (TWT) was to the effect that several interviews were conducted with the appellant from the time of his arrest on 18/12/2012. That he volunteered to make statements, which he did, after the cautionary words were administered to him on 8/2/2013 and 25/2/2013. That each time, after making the statements, he was taken before a Superior Police Officer (SPO) where he confirmed that they were voluntarily made.

It was further stated that the interview sessions were recorded on four DVDs, which were tendered in evidence during the TWT.

On the other hand, the appellant maintained that the statements were made under duress. It was his contention that he was made to undergo a lie-detector test during the oral interview using a polygraph machine. He alleged that the machine was used without his consent and therefore violated his fundamental right to remain silent as provided in Section 35 (2) of the Constitution of the Federal Republic of Nigeria (CFRN), 1999, as amended. On the right of an

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accused person to remain silent, he referred to Abadom Vs The State (1997) 1 NWLR (479) 1 @ 20 H; Mbele vs The State (1990) 4 NWLR (Pt.145) 484 @ 500 – 501 H – A; Utteh vs The State (1992) 2 NWLR (Pt.233) 257 @ 274 G. He reproduced the evidence of the appellant at pages 476 – 479 of the record as to what transpired during the use of the polygraph machine. He argued that the use of the machine deprived the appellant of the discretion to remain silent and therefore the two statements were tainted with an incurable virus.

He referred to a Canadian authority: R Vs Beland & Phillips (1987) 2 SCR 398, where the Canadian Supreme Court rejected the use of the results of a polygraph test conducted on the suspects.

Learned counsel argued that PW1’s denial of any knowledge of a polygraph test conducted on the appellant was feeble at best, having regard to the fact that PW2 testified that he had attended courses and training on the use of polygraph machines. He surmised that such training would be unnecessary if there was not intention to utilise it. He was of the opinion that the respondent ought to have invited the persons who conducted the test, named by the

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appellant, to rebut his evidence. He submitted that in the absence of evidence in rebuttal, there was no reasonable ground to disbelieve the appellant’s testimony. He observed that the learned trial Judge did not make any reference to the conduct of the polygraph test in his ruling. He noted further that the Court below held that there was no nexus between the use of the polygraph machine and the making of the appellant’s statements. He insisted that the circumstances described by the appellant was proof that the confession was obtained by reason of threat or fear instilled in him.

Learned counsel also observed that the prosecution failed to tender the appellant’s extra-judicial statements which were being challenged, during the TWT. He submitted that they were tendered for identification only. He submitted further that the failure to tender the statements was fatal to the TWT proceedings. He submitted that the law is settled that the Court cannot rely on a document that is not properly before it. He argued that the observation by the lower Court, to the effect that neither party applied to tender the statements and that the appellant was at liberty to

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apply for them to be admitted to enable him rebut the evidence of voluntariness, was erroneous, as it had the effect of shifting the burden of proof on him. He submitted that the burden of proof lies on the respondent. He referred to Gbadamosi Vs The State (supra); Iregu Vs The State (supra); Alabi Vs The State (1993) NWLR (Pt. 307) 511 @ 531A. He submitted that without the tendering of the statements, the Court was left with the ipsi dixit of the respondent’s witnesses that the appellant made any confessional statement at all.

In reaction to the finding of the lower Court that the appellant failed to utilise the opportunity of confirmation before PW2 to deny the voluntariness of his statement and that he also failed to use the opportunity of the TWT to do so, learned counsel argued that the appellant’s testimony at the TWT was an attack against his entire testimony. He noted that the appellant testified that PW2, the Chief Investigating Officer, interacted with him constantly throughout the investigation, threatened him and also promised him amnesty if he made a statement.

He contended that PW2 was an interested party and it would have made no

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difference if he had mentioned that he was threatened. On whether the appellant challenged the evidence of confirmation proffered by PW2 at the lower Court, he referred to Grounds 14 and 15 of the notice of appeal before that Court.

Learned counsel argued that the appellant testified that he made a statement on the 23rd/24th of December, 2012 to the white men who conducted the polygraph test on him, which was not tendered by the respondent, despite being served with a subpoena to produce it. He submitted that where the accused person challenges the voluntariness of the confessional statements sought to be tendered, the prosecution has a duty to tender all the extra-judicial statements made by him, including those that are favourable to him. He referred to Okonkwo vs The State (1998) 8 NWLR (Pt.561) 210 @ 248.

He submitted that the failure to tender the statement was a breach of the appellant’s right to fair hearing.

As regards grounds 13, 17, 18 and 19 of the notice of appeal, learned counsel contended that the lower Court was wrong when it held that they raised fresh issues not raised before the trial Court. He argued that ground, 13, 17, 18 and

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19 are grounds of law, which raised the issue of the validity of the TWT when the extra-judicial statements were not tendered, the failure to conduct separate TWT for each accused and the failure to separate the TWT in respect of each challenged statement. He noted that the issues were argued in the appellant’s written address at the conclusion of the TWT. He also submitted that ground 17 relates to the failure to tender the statement made on 24/12/2012, which the appellant had testified to.

He submitted further that the lower Court failed to consider the issues raised in grounds 3, 5, 6, 7, 8, 9 and 10 of the grounds of appeal. He submitted that the Court has a duty to consider all the issues raised before it dispassionately and urged this Court to invoke the provisions of Section 22 of the Supreme Court Act, and revisit the issues.

In response, learned counsel for the respondent submitted that it is not the practice of this Court to interfere with concurrent findings of fact or to re-evaluate the evidence where no miscarriage of justice has been established. He referred to Igago Vs The State (1999) 12 SCNJ 140; Nkebisi vs The State (2010) ALL FWLR

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(Pt. 521) 1407. He submitted that not only did the appellant fail to allege torture when taken before PW2 for confirmation of his statement, there were video recordings of the process of taking his statements, which were admitted in evidence as Exhibits TWT1 – TWT4. He submitted that the exhibits speak for themselves. He submitted further that while the prosecution’s case was consistent, the appellant, in a bid to deny his voluntary confession, gave conflicting evidence, which was properly evaluated and resolved against him.

He referred to the ruling of the learned trial Judge at pages 476 – 497 of the record, which was affirmed by the lower Court. He submitted that the allegation of torture was an afterthought.

Learned counsel submitted that the respondent did all that was required to establish the voluntariness of Exhibits B and B1, having regard to the provisions of Section 29 of the Evidence Act. He referred to Exhibits TWT1 – TWT4, the confirmation of the statements before PW2, as well as the uncontradicted testimonies of PW2 and PW3. He submitted that the statements were corroborated by the evidence of PW6, PW7 and PW8 in addition to admissions made

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by the appellant in the course of his defence in the TWT.

He submitted that contrary to the appellant’s contention, the burden of proof of particular facts, as opposed to proof of guilt, rests on the party who alleges the existence of such facts. He submitted that appellant had the onus of proving torture, oppression and inducement in the making of his statements. He referred to Section 136 of the Evidence Act and Nwangbomu Vs The State (2001) ACLR 9. He argued that assuming without conceding that a polygraph test was conducted on the appellant, it does not detract from the voluntariness of the statements.

He noted that the appellant’s constitutional right to remain silent was never raised throughout the trial. He submitted that the allegations of threat, inducement, promise of amnesty, withholding of his eye medication and so on cannot avail him having regard to Section 31 of the Evidence Act. He also referred to Section 14 of the Act and the case of Haruna Vs A.G. Federation (2012) 49 NSCQR 1410 @ 1430; (2012) 9 NWLR (Pt.1306) 419 to the effect that what governs admissibility is relevancy and once the evidence is relevant, the Court is bound to admit it.

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He submitted that the appellant’s counsel’s submissions regarding the legitimacy of a polygraph test and his reliance on the case of R. Vs Beland & Phillips (supra) are irrelevant, as it was not an issue before any of the lower Courts. He submitted that the onus was on the appellant to prove the existence of the statement allegedly made on the 23rd or 24th of December, 2012. He also submitted that as regards Exhibits B and B1, distinct evidence was led in respect of the circumstances in which they were obtained.

He urged the Court to resolve the appeal aginsta the appellant and to uphold the concurrent findings of the two lower Courts.

Sections 28, 29 (1), (2) and (5) and 31 of the Evidence Act provide: “28. A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime. 29. (1) In any proceeding, a confession made by a defendant may be given in evidence against him in so far as it is relevant to any matter in issue in the proceeding and it is not excluded by the Court in pursuance of this Section. (2) If, in any proceeding, where the

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prosecution proposes to give in evidence a confession made by a defendant, it is represented to the Court that the confession was or may have been obtained – (a) by oppression of the person who made it; or (b) in consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in such consequence, the Court shall not allow the confession to be given in evidence against him except in so far as the prosecution proves to the Court beyond reasonable doubt that the confession (notwithstanding that it may be true) was not obtained in a manner contrary to the provisions of this section. (5) In this section, “oppression” includes torture, inhuman or degrading treatment, and the use or threat of violence, whether or not amounting to torture. 31.

If a confession is otherwise relevant, it does not become irrelevant merely because it was made under a promise of secrecy, or in consequence of a deception practised on the defendant for the purpose of obtaining it, or when he was drunk, or because it was made in answer to questions which he need not have

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answered, whatever may have been the form of these questions or because he was not warned that he was not bound to make such statement and that evidence of it might be given.”

There is no dispute as to the fact that the appellant’s extra-judicial statements admitted in evidence as Exhibits B and B1 are confessional.

He challenged their admissibility on the ground that they were not made voluntarily but as a result of oppression, which took the form of: (a) The conduct of a polygraph test by some white men at the behest of the DSS, during which he was shouted at and threatened by the men conducting it; (b) Denial of his eye medication for the treatment of Glaucoma from 18th – 25th December, 2012, to coerce him into speaking the truth; (c) The threat that his wife and children would be brought to see him in the interrogation room during the test; (d) Leaving him in a cold room overnight; (e) Threats and intimidation by PW2 overnight.

Where it is alleged that a confessional statement was obtained under duress or as a result of threat or inducement, the Courts have developed the practice of conducting a trial within trial

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(TWT) or mini trial to ascertain the voluntariness of the statement. The onus is on the prosecution to prove that it was freely and voluntarily made. See Olayinka Vs The State (2007) 9 NWLR (Pt.1040) 5; Gbadamosi vs The State (1992) 9 NWLR (Pt.266) 465 @ 480: Effiong vs The State (1998) 8 NWLR (Pt.562) 362. On the other hand, where the accused outrightly disowns the confession and asserts that he did not make the statement at all, it would be admitted in evidence and considered alongside other evidence led at the trial to determine its probative value.

See Ikpasa vs Bendel State (1981) NSCC 300; Ikumonihan vs The State (2018) LPELR-44362 (SC) @ 7 – 9 B – A.

The question that then arises is: whether the prosecution discharged the onus of proving beyond reasonable doubt that the statements were voluntarily made?

The respondent called three witnesses at the TWT, namely TPW1, TPW2 and TPW3, while the appellant testified in his own defence. TPW1, James Simon, testified that he and another colleague, James Khanoba were directed by TPW2, Mr. James Eneizi, the Chief Investigator, to interview the appellant and his co-accused. He stated that the appellant

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was cautioned and informed that he was not obliged to say anything but if he elected to do so, his statement would be recorded and could be used in evidence. He stated that he understood the caution and agreed to participate in the interview and that several sessions were conducted. He agreed to make a statement in writing, which he did on 8/2/13. He read over the statement and he (appellant) signed each page, while James Khanoba countersigned. He was taken before TPW2 where he confirmed that it was his statement and that he made it voluntarily. TPW2 endorsed it.

He volunteered another statement on 25/2/13 and it went through the same process of caution, countersignature and endorsement by TPW2.

TPW2, in his testimony stated that the appellant was brought before him on two separate occasions. On each occasion, he asked if he made the statements voluntarily and, on both occasions, he confirmed that he did. He therefore endorsed the statements as having been made voluntarily.

TPW3, Aliyu Usman, a technician attached to the Counter-Terrorism Department of the Department of State Services, testified that he recorded the interview sessions conducted with

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the appellant and produced DVDs which he handed over to TPW2. The interviews were recorded in four parts. The footage was saved to the hard drive of the recording kit from which DVDs were produced. They were admitted in evidence and marked Exhibits TWT1 to TWT4. All the witnesses were thoroughly cross-examined.

The appellant, as part of his defence, gave copious evidence spanning pages 476-479, 480-483 of the record, regarding the circumstances in which a polygraph test was conducted on him by the white men between the 18th – 24th December 2012. He stated inter alia: “On 23/12/12, the man that called himself Zakariyya came to my cell in the morning. He put on my head one elaborate hood. All alone, it has been the one I was wearing in that cell. He led me into the interrogation room.

He told me there and then that my wife and two of my children were on their way and they want them to see me in this miserable condition. I pleaded to him not to allow that, but he left me in the room with annoyance. At the end of the day around 5pm, the test was concluded and they told me that I have failed the test. They also told me that my family are coming up to see

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my condition. To avert my family seeing me, I must continue the next day, 24/12/12. I agreed that I rather continue the next day. My experience of the test on 24/12/12 was most stressful involving about four sessions. It was concluded around 6pm. In the end, the three of them came into the interrogation room to announce the result of the test. They asked me whether I thought I passed and I said yes. The doctor congratulated me and said I passed. The three of them in turn hugged me. The four of us sat on chairs and formed a close circuit. The team leader said if he were Mr.

President, you would go home today, but yet, don’t worry. We will write a report about you to the State Security Service and they will use it. In the end, they asked if I could work for them and I said I can’t. They persuaded further but I still said I can’t. That was how we parted with the white men on 24/12/12. The white people asked me to write a statement which I did and submitted it to them. I wrote the statement on 24/12/12 earlier and they even read it. … On 25/12/12, my eye drugs was (sic) handed over to me. …On 26/12/12, the officers moved me from that cell into another facility.”

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It is evident from the testimony above that the alleged incidents of oppression and inducement referred to were in relation to the conduct of the polygraph test, which was concluded on 24/12/12. He stated that he received his eye medication the following day, 25/12/12. Furthermore, he testified that the whole exercise ended amicably on 24/12/12, when he was hugged by the white men and congratulated for passing the test. So impressed were they that they even tried to persuade him to work for them, which he declined.

He stated that he wrote a statement on 24/12/12, which he gave to the white men.

It must be stressed here that the purpose of the TWT conducted by the trial Court was to test the voluntariness of Exhibits B and B1, the statements made on 8/2/2013 and 25/2/2013 and no more. At the time the Court ordered for the conduct of the mini trial, the only evidence before the Court was the evidence of PW1 to the effect that the appellant volunteered the two statements to him. The alleged statement made to the white men on 24/12/2012, after the polygraph test, is not relevant for this purpose. The Court below

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at pages 654 – 655 of the record held thus: “The confessional statements, whose voluntariness was disputed and was being tried and were at the end of the trial admitted as Exhibits B and B1 were made on 8/2/13 and on 25/2/13 respectively. There is nothing in the evidence showing any nexus between a polygraph test of the appellant that ended successfully in his favour on 24/12/2012, and the voluntariness of his confessions made about two months thereafter.

By his own testimony, when requested to make a written statement on the same 24/12/2012, he did so voluntarily, and if he was able to voluntarily make a written statement immediately after the conclusion of the polygraph test on 24/12/2012, then the argument that the same test that ended on 24/12/2012 in his favour did violate the voluntariness of his confessions on 8/2/2013, cannot be valid.

There is no evidence that shows how the polygraph test of to 24th December, 2012 deprived the appellant of the free will or discretion to make or not to make the confessions about two months later on 8/2/2013 and 25/2/2013. In any case, the issue here is not about the admissibility of the evidence of the

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appellant while on the lie or truth detector machine and the results of the polygraph test or the written statement he made on 24/12/2012 following the conclusion of the test. The arguments about the admissibility of the polygraph test examination and result in evidence and the Canadian judicial decision in R V. Beland & Phillips (1987) 2 B, are therefore not relevant here.”

I am in complete agreement with their Lordships in this regard, particularly as there was no attempt by the prosecution to tender any polygraph test results in evidence.

Another vital issue is the evidence of TPW2, that on each occasion when he was brought before him, the appellant confirmed that he made his statements voluntarily. The procedure of taking a suspect who has made a confessional statement before a superior officer for confirmation is not a legal requirement. It is an administrative practice that has gained judicial approval, as an additional means of ensuring that a confessional statement is voluntary. See Smart Vs The State (2016) 1 – 2 SC (Pt.

II) 41; Ojegele vs The State (1988) LPELR-2370 (SC) @ 15 – 16 B – B; Hassan vs The State (2017) 5 NWLR (Pt.1557) 1.

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It behoves any suspect who alleges that his statement was obtained under duress, to take advantage of the opportunity of being taken before a superior police officer, to complain. The appellant did not complain, rather, on both occasions he admitted that he made the statements voluntarily. Learned counsel for the appellant submitted that the appellant was not in a position to complain because the superior officer, TPW2, was complicit in his oppression. With due respect to him, his address, no matter how erudite, cannot be a substitute for evidence.

The Court below observed, and I agree with their Lordships, that if indeed, he had reasons why he felt compelled to confirm the voluntariness of his statements before TPW2, he had an opportunity during his defence in the TWT to explain his position to the Court. I also agree with their Lordships that the appellant’s confirmation that he made the statements voluntarily is consistent with the evidence of TPW1 and TPW2 during the TWT that the statements were voluntarily made. In my view, the affirmation by the Court below of the holding of the learned trial Judge in this regard cannot be faulted.

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As observed earlier, digital recordings were made of the interview sessions and converted into DVDs, which were tendered in Court. The appellant has not raised any serious challenge to the recordings. The testimony of TPW3 remained unimpeached under cross-examination.

As regards the contention that the statements were not tendered during the TWT, the said statements were shown to and identified by TPW1 and TPW2. Both witnesses were copiously cross-examined by learned counsel for the appellant regarding the circumstances in which they were obtained. I am of the view that the issue should have been raised before cross-examination of the witnesses took place. Similarly, the contention that there ought to have been separate trials in respect of each statement and each accused, ought to have been raised at the trial.

Having acquiesced in the alleged wrong procedure, it was too late for the appellant to complain on appeal. See State Vs Onyeukwu (2004) 14 NWLR (Pt.893) 340. Where a party, aware of an irregularity, proceeded to take steps other than to challenge the defect in the proceedings, he would be presumed to have acquiesced, condoned or waived the irregularity or

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defect and cannot later be heard to complain about it. See Saleh vs The State (2018) LPELR-46337 (SC) @ 18 B – F; Nnakwe vs The State (2013) LPELR-20941 (SC).

There are concurrent findings of fact by the two lower Courts that the statements, Exhibits B and B1 were voluntarily made. The appellant was unable to dislodge the convincing evidence of the prosecution witnesses that all necessary steps were taken to ensure the voluntariness of the confessions. The findings have not been shown to be perverse and I am not persuaded to interfere.

In conclusion, I hold that this appeal lacks merit. It is hereby dismissed. The judgment of the lower Court delivered on 15th April, 2019, affirming the ruling of the Federal High Court, Abuja delivered on 22nd October, 2014 admitting the appellant’s extra judicial statements in evidence as Exhibits B and B1 is affirmed. Appeal dismissed.

MARY UKAEGO PETER-ODILI, J.S.C.: I am in total agreement with the judgment just delivered by my learned brother, Kudirat Motonmori Olatokunbo Kekere-Ekun, JSC and to underscore the support in the reasonings from which the decision came about. I shall make some remarks,

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This appeal is against the judgment of the Court of appeal, Abuja Division or Court below or lower Court, Coram: A. Aboki, A. Jauro and E.A, Agim JJCA (as they were then).

The judgment was delivered on the 15th of April, 2019 and it emanated from the interlocutory ruling of the Federal High Court Abuja rendered on the 22nd of October, 2014 in a trial within trial conducted to determine the admissibility of the statement made by the appellant.

The charge against the accused now appellant read as follows:- COUNT 1 That you ABDULLAHI MUSTAPHA BERENDE, between September 2011 and December 2012 at Tehran in Iran rendered support for an act of terrorism to wit: by the provision of material assistance and terrorist training together with others now at large on the use of firearms, explosives and other related weapons and thereby committed an offence contrary to Section 5(1)(a) of Terrorism (Prevention) Act 2011 as amended and punishable under Section 5(1) of the same Act.

COUNT 2 That you ABDULLAHI MUSTAPHA BERENDE, between September 2011 and December 2021 at Tehran in Iran had information which you know to be of material assistance about

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terrorist training at Tehran in Iran and the subsequent spying on Chabbad House Lagos and AA consulting and you failed to disclose such information to the law enforcement officers as soon as reasonably practicable and therefore committed an offence punishable under Section 8(1) of Terrorism (Prevention) Act 2011 as amended.

COUNT 3 That you ABDULLAHI MUSTAPHA BERENDE, between September 2011 and December 2021 at Iran and Dubai UAE received from Amir, an Iranian Terrorist (now at large) the sum of four thousand dollars three thousand Five Hundred Euros (3,500) and twenty thousand dollars ($20,000) respectively to facilitate the commission of terrorist act and therefore committed an offence contrary to Section 13 (1)(a)(ii) of Terrorism (Prevention) Act 2011 as amended and punishable under Section 13 of the same Act.

COUNT 4 That you ABDULLAHI MUSTAPHA BERENDE, between September 2011 and December 2021 at Lagos Ilorin and Tehran in Iran agreed to recruit persons for Amir, an Iranian Terrorist now at large and did recruit the following: Saheed Louremi Adewumi, Sulaiman Olayinka Saka and Biliaminu Muhammed Yusuf and you therefore committed

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an offence punishable under Section 10 of the Terrorism (Prevention) Act 2011 as amended. COUNT 5 That you ABDULLAHI MUSTAPHA BERENDE and you Saheed Oluremi Adewumi and others now at large between September 2011 and December 2012 at Lagos conspired to commit terrorist act to wit: rendering support to terrorism, concealing information about acts of terrorism, recruitment for terrorism purposes and therefore committed an offence punishable under Section 17 of the Terrorism (Prevention Act) 2011 as amended.

COUNT 6 That you ABDULLAHI MUSTAPHA BERENDE and you Saheed Oluremi Adewumi between September 2011 and December 2012 at Lagos through the technological devices including camera supported the commission of Terrorist Act and thereby committed an offence punishable under Section 12 of Terrorist (Prevention Act) 2011 as amended.

At the trial, the Appellant and one Saheed Oluremi Adewumi were charged for various acts of Terrorism under the Terrorism (Prevention) Act 2011 (as amended). The prosecution commenced his case on the 22nd of October 2013 by calling PW1, one James Ene Izi. In the course of the trial, the prosecution, on the

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aforesaid 22nd of October, 2013, sought to tender two confessional statements of the Appellant. The Appellant raised an objection to the admissibility of the two statements under the provisions of Section 29 of the Evidence Act on the ground that the statements were not voluntarily made by the appellant.

A trial within-trial was therefore directed by the trial Court to determine the voluntariness of the statements. At the conclusion of the mini-trial, the learned trial judge in a considered ruling delivered on 22nd of October, 2014 held that the statements were voluntarily made and therefore admissible. The Appellant upon the leave of the trial Court granted on the 4-12-2014 at page 543 of the record, filed a notice of appeal dated 17th December, 2014 now copied at pages 570-579 of the record of this appeal.

The lower Court on the 15th of April, 2019 affirmed the decision of the trial Court on the admissibility of the Appellant’s statement, hence this appeal.

THE CASE OF THE PROSECUTION In proof of the voluntariness of the two statements, the prosecution called three witnesses, namely, PW1, PW2 and PW3. PW1 testified that he and one James Kanoba

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took the statements of the Appellant when the Appellant agreed to write the statements. He obtained the statements dated 8th of February, 2013 and 25th of February, 2013 from the Appellant. He thereafter took the statements to PW2, a superior investigative officer, who confirmed the voluntariness of the statements and counter-signed the statements. It is the case of the prosecution that the Appellant elected to write the statements after several interviews had with him.

PW3 also testified to the effect that he undertook the video recording of the interview sessions of the Appellant and tendered Exhibits TWT1 to TWT4 which are the video DVDs of the interviews. The witnesses were duly cross-examined by the counsel for the Appellant.

THE APPELLANT’S CASE The Appellant testified on behalf of himself and gave evidence to the effect that the two statements were not made by him voluntarily. He gave evidence of various promises, inducements, threats suffered by him in the course of making the statements. In particular, he alleged that he was subjected to a polygraph test (by the use of a lie detecting machine) before the statements were taken. He tendered

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Exhibit TWT5, a copy of the order of the Federal High Court directing his release which the prosecution refused to comply with. The Appellant was duly cross-examined by the prosecution.

THE ADDRESS At the conclusion of the hearing, the learned trial Judge directed that the parties should file written addresses in support of the evidence adduced. The address of the Appellant in the trial within trial is now at pages 383-402 while the prosecution’s reply is at pages 403-408.

The learned trial Judge dismissed the objection against the admissibility of the statements and admitted the two statements and had then marked as Exhibits B and B1.

Dissatisfied, the appellant appealed to the Court below which dismissed the appeal and further aggrieved the appellant has come to the Supreme Court on appeal.

On the 11th day of March, 2021 date of hearing, learned counsel for the appellant, M.I. Hanafi adopted the brief or argument filed on 20/11/2020 in which he nominated three issues for determination, viz:- i. Was the Court of appeal correct when it affirmed the ruling of the learned trial Judge that the prosecution proved that the two

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extra-judicial statements of the Appellant were made voluntarily and therefore admissible. Grounds 1, 2, 4, 5, 6, 7, 8 and 9 of the grounds of appeal. ii. Whether the Court of appeal justices were correct when they held that grounds 13, 17, 18, and 19 of the grounds of appeal raised fresh issues not raised before the trial Court and are incompetent. Ground 3. iii. Did the Court of appeal consider the issues raised in grounds 3, 5, 6, 7, 8, 9 and 10 of the grounds of appeal before it and whether the failure did not occasion a miscarriage of justice. Ground 10.

The learned Deputy Director of Public Prosecution (DDPP) of the Federation, Chioma Onuegbu Esq., adopted the brief of argument of the respondent filed on 4/2/2021 and in it raised one issue as follows:- Whether this Court can re-evaluate the evidence before the trial Court or upon the concurrent findings of the trial and lower Court in the circumstances of this case.

I shall make use of the first issue crafted by the appellant for my purpose in the determination of this appeal. ISSUE NO. 1 Was the Court of appeal correct when it affirmed the ruling of the learned

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trial judge that he prosecution proved that the two extra-judicial statements of the appellant were made voluntarily and therefore admissible.

For the appellant, it was contended that the two statements were not made voluntarily as the prosecution making the appellant undergo a polygraph test in the extraction of the statement was a violation of his right to choose to remain silent under Section 35(2) of the Constitution. He cited Abadom v The State (1997) 1 NWLR (pt.479) 1 at 20 etc.

Learned counsel for the appellant further stated that with the denial of the prosecution of the conduct of the polygraph test, the prosecution ought to have called the persons named by the appellant as the persons who conducted the test to rebut the appellant’s assertion. He cited State v Salawu (2011) 8 NWLR (pt. 1279) 580 at 605.

That since the evidence of the appellant on what transpired in the procuring of the statements remained unchallenged the version of involuntarily put up by the appellant should be accepted by the Court as the true state of what happened. ​ For the appellant, it was submitted that the failure of the prosecution to tender the extra

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judicial statements at the at the mini trial was fatal to the prosecution’s case. That the non-tendering of the statements at the trial-within-trial deprived the trial Court of competence to pronounce on the response to the centralised portions of the statement as a line of defence.

Learned counsel for the appellant stated that the respondent failed to produce and/or tender the statement of the 23rd of December, 2012 made by the appellant. That where the confession of an accused is challenged as in this case, the prosecution has a duty to produce all the statements made by an accused person so that the Court can take an informed decision on the issue of the confession. He cited Okonkwo v The State (1998) 8 NWLR (pt.561) 210 at 260.

That a miscarriage of justice was occasioned on the appellant by the prosecution failing to produce all the statements made by the appellant as it was for the prosecution to decide which statement to produce and tender and which to withhold.

Learned counsel for the appellant took of the Court below’s non-consideration of all the issues raised and make pronouncement on them which led to a miscarriage of justice.

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He cited Ojogbue v Nnubia (1972) All NLR 664 at 669 etc. That the period between the 1st statement and the 2nd statement of the appellant is about 17 days and there was no explanation from the prosecution on the gap in taking the two confessions.

In response, learned counsel for the respondent stated that it is the duty of a trial Court to evaluate the evidence as in this case and the appellate Court cannot interfere with the findings of the lower Court where there was no miscarriage of justice. He cited Igago v State (1999) 12 SCNJ 140 etc.

That in the instant case, nothing was done to render Exhibits B and B1 unreliable instead everything was regularly done. That the burden was on the appellant who alleged torture and oppression to prove same since the prosecution led credible evidence to the contrary. He referred to Nwangbomu v State (2001) ACLR 9.

That even if the polygraph test was deployed on the appellant, it would not render involuntary statements voluntarily made. ​ The crux of the dispute over the statements of the appellant is the voluntariness or otherwise of the extra-judicial statements. While the appellant contends they were not

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voluntarily made, the respondent submits to the contrary and it was this opposing positions that brought about the trial within trial conducted by the Court of trial to ascertain what the time position was. See Ikemson v The State (1989) 3 NWLR (pt.110) 455 at 467; Re: Osakwe (1994) 2 NWLR (pt. 326) 273 at 287; State v Gwangwan (2015) 13 NWLR (pt. 1477) 600 at 624.

The point has to be emphasized that even though it is the appellant that disputes the voluntariness of the statement the burden of proving that the statement was voluntarily made by the accused/appellant rests on the prosecution and the standard of proof is beyond reasonable doubt. See Gbadamosi v The State (1992) 9 NWLR (pt. 266) 465 at 489; Iregbu v The State (2013) 12 NWLR (pt. 1367) 92 at 117.

The respondent called three witnesses who testified that the confession was made voluntarily made. The respondent’s case is that they had several interviews with the appellant from the 18th December, 2012 when he was arrested and on the 8th of February, 2013 and the appellant elected to make a statement under caution. That again on the 25th February, 2013, the appellant also agreed to make a

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statement after the respondent applied the word of caution and after the making of the statements appellant was taken to PW2, a superior officer who confirmed from the appellant that the statements were on each occasion made voluntarily. Also that the statement were recorded in four DVDs which were tendered and admitted as Exhibits TWT1 – TWT4.

Disputing the narration of the prosecution, the appellant stated that he was subjected to a polygraph test to detect the truth and this was without appellant’s consent contrary to Section 35 (2) of the Constitution of the Federal Republic of Nigeria 1999 and led to the lack of voluntariness of the statements. Also that he was tortured. I shall quote excerpts of the testimony of the appellant at the mini trial thus:- “I was led into the interrogation room. At the interrogation room, two officers of the State Security Services came in and introduced themselves.

One said he is Zakariyya (sic Zakari) and the other said he is John. They collected my personal data and they went out. After about five minutes, they came back. They came in with two white men and the leader of the two white men introduced himself as

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George. Zakariyya (Zakari) and John advised me to cooperate fully with them. Zakariyya (sic Zakari) and John left leaving the two white men. …The interrogation continued in the same way the next day. There and then, they have to run a test on me for me to be vindicated. They said it is a “LIE DECTECTING MACHINE” and the white people said they will carry out the test on me. I resisted as I didn’t want the test on me. Because I fear the hazards on my person. They eventually brought the Lie Detecting Machine to the interrogation room.

Another white man simply referred to as “Doctor” accompanied the machine. They asked me to sit on a chair. On the chair, there was a plastic and several cord wires runs through it. As I said, there was another plastic plate for the two feet. There was a strap on my arm. There were twisted cords for lungs with metal at the two ends of the cord placed on the chest and hooked at the back. Another twisted cord was placed on the upper part of my abdomen and hooked at the back. There were other three long plastic rings with wire suspended at the end. They were inserted into three middle fingers.

All of these cords have suspended

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wires. All the wires were directed to another box. From the box, there was another cord connected to a lap (sic laptop). The first two left the interrogation room leaving the Doctor and myself. The Doctor told me that they brought milk and water. That I would be needing the milk and the water. They told me that I should be hundred percent sure of the answer I gave. Either Yes of No. They said I should not move any limb throughout the test as well as fingers and toes that I must not move my head or clear my throat and I must look straight unto the wall. That my eyes should not move.

Questions on my possible involvement on terror activities were asked, whether there was any sum of money kept somewhere. My encounter with the white people lasted seven days. The effect of the test is that on each session my energy is sapped. The Doctor started persuading me to take the water and milk and the two other white men came and joined the Doctor in persuading me to take the milk and the water. I insisted that I was not taking and said for me to continue, I must take the milk and the water to continue with the test. I reminded them each day of my drug. The interrogation is

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of two sessions every day. Morning session starts from 9.am till about 12.pm and they allow me time to pray, each day, they continue to tell me that I failed the test. The interview conducted on 21/12/2021, because it lasted for 24hours. Whereby my hands were handcuffed, chained on the legs and the two white men were alternating themselves on that day until the night. They allowed me do my night prayers and immediately thereafter, the interrogation continued.

On the first part of the night that is, around 7.30pm, they lowered to the coolest level the air-condition and left me like that till next morning to around 6a.m. I was tied as such with my hands on the back and chains on the leg and asked to sleep on an armless chair until 24th of December, 2012. Right from 18/12/2012, I felt completely spent. I do complain to them that I cannot resist the air condition and they will switch it off. On that day, that is 21/12/2012, it was a deliberate attempt to traumatise me further.

I have a strong feeling that the two white men are Israelites because the three of them speak Arabic and English. The Arabic was not a classic Arabic and it is a dialectic and they said to me,

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you don’t like us, and everything they were asking me had to do with Israel companies. Their English accent not American. I am familiar with Arabs in English, Iraq and some middle east countries and the dialect is not the same. I speak Arabic myself, I have had encounter with Israel leaders in conference in the Republic of Iran.”

The angle taken by the appellant to show the involuntariness of the statements is the fact that the trial-within-trial, the two statements were merely identified and not tendered. The Court below dealt effectively on the matter when it held thus: “there is no doubt that it is better practice for the confessional statement whose voluntariness is being tried to be part of the evidence during the trial within trial of its voluntariness.

It is obvious from the evidence, written address and the ruling in the trial within trial and the arguments in the Appellant’s brief that the contents of the confessional statements were exhaustively considered by the parties and the Court in determining their voluntariness. The prosecution had applied to tender them in evidence through PW1 in the main trial when the defence objected to their

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admissibility on the ground that they were not voluntarily made. Both sides presented their evidence during the trial within trial. Non applied that the confessions be tendered in evidence during trial. There was no dispute as to the content of the statements made by the Appellant. The dispute about the voluntariness of the confessions was based on the procedure of making those statements. The dispute was therefore determined on the basis of the evidence of the facts of the circumstance and procedure of making those statements.

If the Appellant considered that it was necessary to tender the confessions as part of the evidence in the trial within trial, to enable it rebut the evidence of the prosecution on the voluntariness of the conclusion (sic confession) he was at liberty to apply that it be so admitted for the purpose of the trial within trial. It did not do so.”

The trial Court had held that the appellant did not allege any torture when taken before TPW2 (the superior officer) and TPW3 who recorded the interview sessions did not corroborate appellant’s claims of torture, more so as the whole process of taking the appellant’s statements was recorded

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in Exhibits TWT1 – TWT4 which speak for themselves and against the appellant. The trial Court found the case of the prosecution consistent and corroborative and the allegation of torture was an afterthought and the confessional statements admitted as Exhibits B and B1. This in line with Section 29 of the Evidence Act 2011 (as amended) which is the basis of the trial-within-trial.

An area that has to be cleared in the proof of the voluntariness of an extra-judicial statement or that it was involuntarily made, is that while the burden to establish that the statement was voluntarily made rests on the prosecution, the burden of proving any particular fact such as the allegation of torture and oppression regarding the confessional statement lies on the party so asserting which in this case is the appellant. See Nwangbomu v State (2001) ACLR 9.

That a polygraph test was administered on the appellant did not detract from the voluntariness of the statement made. The same effect ensuing inspite of the statements being based on answers to a list or form of questions over 50 days of arrest, uncertainties as to if and how cautionary words were applied especially

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when such allegations remained unconfirmed or corroborated. Those happenings do not automatically translate to threat or inducement as to fatally affect the voluntariness of the statement.

It is so because Section 31 of the Evidence Act 2011 (as amended) provides as follows: “If a confession is otherwise relevant, it does not become irrelevant merely because it was made under a promised of secrecy, or inconsequence of a deception practiced on the defendant for the purpose of obtaining it or because it was made in answer to questions which he need not have answered, whatever may have been the form of these questions, or because he was not warned that he was not bound to make such statement and that evidence of it might be given.” It needs be said that Section 14 of the Evidence Act 2011 (as amended) stipulates to the effect that even where an evidence was obtained improperly or in consequence of an impropriety or a contraction of the law, it remains admissible unless the Court is of the opinion that the desirability of admitting such evidence is outweighed by the undesirability of admitting same.

See Haruna v A.G. (2012) 49 NSCQR 1410 at 1430.

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Indeed, the concurrent findings of the two Courts below over the voluntarily made statements in this case will not be interfered with since they did not stem from a miscarriage of justice or there was a misapplication of the law, substantive or procedural.

The statements were properly admitted by the trial Court and the Court below had no reason to hold to the contrary hence I see no basis to deviate. The appeal lacks merit and I dismiss it. I abide by the consequential orders made.

JOHN INYANG OKORO, J.S.C.: I had a preview of the lead judgment delivered by my learned brother, Kudirat Motonmori kekere-Ekun, JSC, and I wholly agree with his reasons and conclusion reached therein.

In the main, the issue in this appeal is whether the Appellant’s confessional statements admitted as Exhibits B and B1 were voluntarily made. It is in evidence that in an effort to ascertain the voluntariness of the said statements and in line with the law, a trial-within-trial was conducted after which the learned trial judge being satisfied of their veracity, admitted them in evidence. ​ The tests for determining the voluntariness of a

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confessional statement have been consistently applied by this Court in a plethora of cases as follows: (1) Whether there is anything outside the confession to show that it is true. (2) Whether the statement is corroborated, no matter how slight (3) Whether the facts contained therein, so far as can be tested, are true. (4) Whether the accused person had the opportunity of committing the offence. (5) Whether the confession of the accused person was possible. (6) Whether the confession was consistent with other facts which have been ascertained and proved in the matter. See R v.

Sykes (1913) 8 CAR 233 at 236, Ikpasa v. Attorney General of Bendel State (1981) 9 SC 7; Akpan v. State (1992) 6 NWLR (pt. 248) 439 at 460; Alarape v State (2001) 5 NWLR (pt 705) 28 at 98 – 99.

Incidentally, the Appellant’s quarrel in this appeal is not against the truthfulness of the Confessional Statements but against the voluntariness thereof. He contends that having been subjected to a lie-detector test which was concluded on 24/12/2012, about a month before he made his said confessional statements on 8/2/2013 and 25/2/2013, he was compelled

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to say the truth. That he could not deviate from the statement obtained from him with the use of polygraph machine which he contends is a violation of his constitutional right to remain silent under Section 35 (2) of the 1999 Constitution.

My Lords, the law is trite that a confession otherwise relevant does not become irrelevant merely because it was made under a promise of secrecy, or in consequence of a deception practiced on the defendant for the purpose of obtaining it, or when he was drunk, or because it was made in answer to questions which he needed to have answered, whatever may have been the form of these questions, or because he was not warned that he was not bound to make such statement and the evidence of it might be given. See Section 31 of the Evidence Act, 2011.

In the instant case, it is undoubted that the Judges rules was more than complied with by the police before obtaining statements admitted as Exhibits B and B1. I agree with the finding of the learned Justices at the Court below that there is no nexus whatsoever between the Appellant’s statement made under the alleged polygraph examination and the Appellant’s confessional

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statements admitted as evidence in Court as no recording obtainable from the polygraph machine was tendered in evidence. In any event, even if there was a lie detector test administered on the Appellant, it does not detract from the truthfulness of his confessional statements. I hold the view, and strongly so, that the Appellant’s confessional statements in Exhibits B and B1 were properly admitted in evidence.

From all I have said above and the fuller reasons adumbrated in the lead judgment, this appeal is devoid of merit and I also dismiss it. I abide by the consequential orders in the lead judgment. Appeal dismissed.

IBRAHIM MOHAMMED MUSA SAULAWA, J.S.C.: The instant appeal has emanated from the Judgment of the Court of appeal, Abuja Judicial Division, delivered on April 15, 2019 in appeal No. CA/A/1004C/2018. By the judgment in question, the Court below, Coram A. Aboki, A. Jauro, and E. A. Agim, JJCA (as the learned Lords then were) dismissed the Appellant’s appeal against the interlocutory ruling of the trial Federal High Court Abuja delivered on October 22, 2014.

BACKGROUND FACTS The circumstances surrounding the Appellant’s

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travails thereby leading to the instant appeal are traceable to December 17, 2012. That is indeed the day the Appellant was arrested by some operatives of the State Security Services (SSS) at his residence No. 80 Agbo-Oba Road, Ilorin, Kwara State.

In the course of investigation by the SSS operatives, the Appellant’s GSM handsets and laptop computer were exploited and analysed. The Appellant was suspected to have been involved in Iran State sponsored terrorism.

Further investigation led to the arrest of two other suspects in the persons of Saheed Oluremi Adewumi (2nd Accused person) and Suleiman Saka, both of whom were allegedly recruited by the Appellant to collect operational intelligence on Israeli and American interests in Lagos State and in other parts of Nigeria.

Eventually, the Appellant was arraigned before the trial High Court Abuja, along with Saheed Oluremi Adewumi upon a six count charge, viz: COUNT 1 That you ABDULLAHI MUSTAPHA BERENDE, between September, 2011 and December, 2012 at Tehran in Iran rendered support for an act of terrorism to wit: by provision of material assistance and terrorist training together with

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others now at large on the use of firearms, explosives and other related weapons and thereby committed an offence contrary to Section 5(1) (a) of Terrorism (Prevention) Act 2011 as amended and punishable under Section 5(1) of the same Act.

COUNT 2 That you ABDULLAHI MUSTAPHA BERENDE, between September, 2011 and December, 2012 at Tehran in Iran had information which you know to be of material assistance about the terrorist training at Tehran in Iran and the subsequent spying on Chabbad house Lagos and AA Consulting Lagos and you failed to disclose such information to the law enforcement officers as soon as reasonably practicable, and therefore committed an offence punishable under Section 8(1) of Terrorism (Prevention) Act 2011 as amended.

COUNT 3 That you ABDULLAHI MUSTAPHA BERENDE, between September, 2011 and December, 2012 at Tehran and Dubai UAE received from AMIR an Iran terrorist, (now at large) the sum of four thousand dollars ($4,000), three thousand, five hundred Euros (€3,500), and twenty thousand dollars ($20,000) respectively to facilitate the commission of terrorist act and therefore committed an offence contrary to

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Section 13(1) of Terrorism (Prevention) Act 2011 as amended, and punishable under Section 13 of the same Act. COUNT 4 That you ABDULLAHI MUSTAPHA BERENDE, between September, 2011 and December, 2012 at Lagos, Ilorin Nigeria, Tehran in Iran, agreed to recruit persons for AMIR an Iranian terrorist, now at large and did recruit the following: Saheed Oluremi Adewunmi, Sulaiman Olayinka Saka and Billiaminu Mohammed Yusuf and therefore committed an offence punishable under Section 10 of Terrorism (Prevention) Act 2011 as amended.

COUNT 5 That you ABDULLAHI MUSTAPHA BERENDE and you SAHEED OLUREMI ADEWUNMI, and others now at large between September, 2011 and December, 2012 at Lagos conspired to commit terrorist act to wit: rendering support to terrorism, concealing of information about acts of terrorism, recruitment for terrorism purposes and therefore committed an offence punishable under Section 17 of Terrorism (Prevention) Act 2011 as amended. COUNT 6 That you ABDULLAHI MUSTAPHA BERENDE and you SAHEED OLUREMI ADEWUNMI, between September, 2011 and December, 2012 at Lagos, through the technological devices

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including camera, supported the commission of terrorism act and thereby committed an offence punishable under Section 12 of Terrorism (Prevention) Act 2011 as amended.

Not unnaturally, both the Appellant and the co-accused person thereof pleaded not guilty to the six count charge in question. The charge proceeded to trial on 28/10/2013. In the course of the trial, the prosecution sought to tender two confessional statements of the Appellant. The Appellant’s learned counsel vehemently objected to the admissibility of the said statements on the ground that they were not voluntarily made by the Appellant. Thus prompting the trial Court to conduct a trial-within-trial.

At the conclusion of which the Court delivered a ruling on 22/10/2014 to the conclusive effect: In conclusion, I am of the firm view that the two statements sought to be tendered have passed the test of veracity and voluntariness laid down by law as stated by the Supreme Court in the cases of ALARAPE VS. STATE and AKPAN VS STATE, both supra. On the whole, I am satisfied that the prosecution has proved beyond reasonable doubt the requirement of voluntariness of the confessional

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statement made by the 1st and 2nd accused persons. In consequence of the above holding, the said statements are hereby admitted as Exhibits B, B1 and C and C1 respectively.

Whereupon, the Appellant appealed to the Court below vide a notice of appeal filed on 17/12/2014 with leave of Court. The Court below on its part delivered the vexed judgment on 15/04/2019, to the following conclusive effect: There is no doubt that the trial Court determined the voluntariness of the appellant’s confessions by relying on the part of the judgment of the Supreme Court in Alarape & Ors vs. The State (2001) 2 SC 14, that lays down the tests for determining the truthfulness of a confession… On the whole this appeal fails as it lacks merit. It is accordingly dismissed.

The ruling of the Federal High Court delivered in charge No. FHC/ABJ/CR/128/2013 on 24/10/20114 by A. R. Mohammed J. C, hereby affirmed and upheld.

The extant notice of appeal dated 13/06/2019 is predicated upon a total of 10 grounds. At long last, when the appeal came up on 17/03/2021, the learned counsel addressed this Court and adopted the argument contained in the respective

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briefs thereof. Thus warranting the Court to reserve the judgment to today.

The Appellant’s brief of argument, settled by M. I. Hanafi Esq., on 20/11/2020, spans a total of 26 pages. Most particularly at page 4 of the brief, three issues have been couched: i. Was the Court of appeal correct when it affirmed the ruling of the learned trial Judge that the prosecution proved that the two extra-judicial statements of the Appellant were made voluntarily and therefore admissible. Grounds 1, 2, 4, 5, 6, 7, 8 and 9 of the grounds (sic – notice) of appeal. ii.

Whether the Court of appeal Justices were correct when they held that grounds 13, 17, 18 and 19 of the grounds (Sic- notice) of appeal raised fresh issues not raised before the trial Court and are incompetent. Ground 3. iii. Did the Court of appeal consider the issues raised in grounds 3, 5, 6, 7, 8, 9 and 10 of the grounds (Sic: notice) of appeal before it and whether the failure did not occasion a miscarriage of justice. Ground 10.

Contrariwise, the Respondent’s brief settled by Chioma Onuegbu Esq., (DDPP) on 04/02/2021, spans a total of 8 pages. At page 2 of the said brief, a sole issue has been raised:

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WHETHER THIS COURT CAN RE-EVALUATE THE EVIDENCE BEFORE THE TRIAL COURT OR UPTURN THE CONCURRENT FINDINGS OF THE TRIAL AND LOWER COURT(S) IN THE CIRCUMSTANCES OF THIS CASE.

As copiously alluded to above, of the three issues raised by the Appellant in the said brief thereof, the issue No. 1 is most instructive: “(Whether) the Court of appeal was correct when it held that the Appellants extra-judicial statements were voluntarily made and therefore admissible.”

The issue no. 1 in question is predicated upon grounds 1, 2, 4, 5, 6, 7, 8 and 9 of the notice of appeal filed on 18/06/2019.

By the issue no. 1 in question, this Court has once again been invited to determine the imperative applicability of the provisions of Sections 28 and 29 of the Evidence Act, 2011 vis-a- vis the trial-within-trial Practice and Procedure.

Invariably, the extant provisions of Sections 28, 29 and 31 of the Evidence Act (Supra) are to the following effect: 28. A confession is an admission made at time by a person charged with a crime, stating or suggesting the inference that he committed that crime. 29. (1) In any proceeding,

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a confession made by a defendant may be given in evidence against him in so far as it is relevant to any matter in issue in the proceedings and is not excluded by the Court in pursuance of this Section (2) If, in any proceeding where the prosecution proposes to give in evidence a confession made by a defendant, it is represented to the Court that the confession was or may have been obtained – (a) by oppression of the person who made it; or (b) In consequence of anything said or done which was likely, in the circumstances existing at the time, to render unreliable any confession which might be made by him in such consequence. (5) In this section “oppression” includes; torture, inhuman or degrading treatment, and the use of threat of violence whether or not amounting to torture. 31.

If the confession is otherwise relevant, it does not become irrelevant merely because it was made under a promise of secrecy, or in a consequence of a deception practiced on the defendant for the purpose of obtaining it, or when he was drunk or because it was made in answer to questions which he need not have answered, whatever may have been the form of

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these questions, or because he was not warned that he was not bound to make such statement and that evidence of it might be given. What is more, it is equally provided under Section 140 of the Evidence Act (Supra): “140.

When a fact is especially within the knowledge of any person, the burden of proving that fact, is upon him.” By virtue of the combined effect of the foregoing provisions of Sections 28, 29, 31 and 140 of the Evidence Act (Supra), the burden of proving beyond reasonable doubt, that a confessional statement was voluntarily made by the accused person squarely rests upon the prosecution. See ADEKANKI VS. THE STATE (1966) ANLR 46 @ 49; EMEKA VS. THE STATE (2001) NWLR (Pt. 734) 666 @ 681.

It is trite that in any given trial, where a confessional statement is sought to be tendered by the prosecution, the accused person (Defendant) has the right to object to the admissibility of the confession in either of two distinct ways. First, the accused may retract the confession or deny ever making same, at all. Second, the accused may opt to admit having made or signed the statement but claim however, that he did not do so voluntarily.

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Where the accused person denies ever writing, or making the confessional statement at all, the confession is still admissible in evidence, albeit the trial Court must at the conclusion of the trial determine the veracity and probative value of the said confession. See IKPASA VS.

THE STATE (1981) NSCC 300, where in this Court aptly held: It is a well established practice in this country that where on the production of a confession, it is challenged on the ground that an accused did not make it at all, the question of whether he made it or not is a matter to be decided at the conclusion of the trial by the learned trial Judge himself.

Whatever objection be made by counsel in such circumstances does not affect the admissibility of the statement and therefore it should be admitted in evidence as the issue of voluntariness or otherwise of the statement does not arise for consideration. See also OGUNYE VS. THE STATE (1999) NWLR (Pt. 604) 548 @ 570; EHOT VS. THE STATE (1993) NWLR (Pt. 290) 6440. However, with regard to the second instance, where the accused admits outrightly that he made and/or signed the confessional statement but

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claims that he did not do so voluntarily, it then behooves the trial Court to first and foremost determine the admissibility (or otherwise) of the confession by holding a mini trial; what is procedurally known as trial-within-trial. See OBIDIOZO VS. THE STATE (1987) NSCC 1239 @ 1246; SAIDU VS THE STATE (1982) NSCC 70 @ 80, et al.

It was equally held by this Court in OGUDO VS THE STATE (2012) ALL FWLR (Pt. 629) 1111 @ 1143 Paragraph A: Where a statement by an accused person is tendered in evidence and objection made to it on the ground that it was not made voluntarily, the Judge should first hear evidence on the point from both parties and make a ruling on the admissibility or otherwise of the document before receiving or rejecting it in evidence.

In the instant case, at page 11 (Paragraph 3.23) of the Appellant’s brief, the learned counsel has vehemently argued: 3.23 Another interesting aspect of the Appellant’s case is the issue of the failure of the Respondent to tender the two extra Judicial statements of the Appellant at the trial-within-trial in proof of its voluntariness. The Respondent’s counsel at the trial within trial,

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produced the two confessional statements of the Appellant and ensured that PW1 and PW2 identified the statements. In other words, the statement were tendered for identification only. See pages 454 line 4 and 463 line 19 of the record of appeal. The Respondent’s counsel therefore did not tender the statements as exhibits in the trial within trial.

It is not at all controversial, that in the course of the trial-within-trial (TWT), the Respondent called three witnesses who testified as TPW1, TPW2 and TPW3, respectively. Contrariwise, the Appellant testified as the sole witness thereof. See pages 450 – 546 of the record. The ruling of the trial Court regarding the TWT (pages 557 – 569 of the Record) is to the conclusive effect: On the whole, I am satisfied that the prosecution has proved beyond reasonable doubt the requirement of voluntariness of the confessional statement made by the 1st and 2nd Accused persons.

In consequential of the above holding, the said statements are hereby admitted as Exhibits B1 and C respectively.

Against the backdrop of the evidence adduced by the Respondent and the Appellant in the course of the TWT, there is no

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doubt that the Respondent had discharged the burden of proof beyond reasonable doubt that the confessional statements credited to the Appellant and duly admitted as Exhibits B and B1 were voluntarily made by the Appellant. Thus, I am unable to appreciate let alone uphold the Appellant’s misconceived argument to the effect that: “In other words, the statement (sic) were tendered for identification only … The Respondent’s counsel therefore did not tender the statements as exhibits in the trial within trial.”

The foregoing submission of the Appellant’s learned counsel is, with possible deference, misconceived and highly preposterous, to say the least!

Cherishingly, there is every cogent reason for me to uphold the finding of the Court below (pages 677 – 678 of the Record) to the conclusive effect: Beyond the reproduction of the test lay (sic) down by the Supreme Court in Alarape & Ors Vs. The State for determine the veracity of a confession, the trial Court was focused on determining the voluntariness of the confessions and directed its mind to the facts established by the evidence of the prosecution which establish that

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voluntariness. It was not influence by its belief in the veracity of the confession in holding that they were voluntarily made.

The foregoing conclusive findings by the Court below is in my considered view, cogent, unassailable and duly supported by the evidence on record.

In the circumstances, the issue no. 1 ought to be and same is resolved against the Appellant.

As aptly postulated herein above, the rule governing the trial-within-trial procedure operates exclusively regarding cases questioning the voluntariness or otherwise of confessions. Undoubtedly, the rule does not apply to questions of weight to be attached to admissible evidence admitted. Unarguably, the question of weight of evidence is always determined, as in the instant case, at the end of the trial in regard to the totality of the evidence before the trial Court. This trite fundamental doctrine, has over the years been reiterated by this Court in plethora of authorities. See R. VS.

NWIGBOKE (1959) 4 FSCC 101 @ 102; IGBINEWKA OWIE VS. THE STATE (1985) 4 SC (Pt. 2) 1; (1985) NWLR (Pt. 3) 470, (1985) LPELR – 2847 (SC) Per Karibi- Whyte, JSC @ 24 – 24 Paragraphs F – A.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Most particularly, in the case of EGBOGHONOME VS. THE STATE (2001) 2 ACLR 262, this Court made it categorically clear, that the law is most unequivocal to the effect that the inconsistency rule would not be applied to exclude a confessional statement duly proved. Indeed, it is incumbent upon the trial Court to assess the veracity and quality (or otherwise) of the alleged confessional statement notwithstanding the retraction thereof by the accused person. As aptly held by this Court in EGBOGHONOME VS.

THE STATE (Supra): I am now convinced by the forceful submissions of Uwaifo, JCA correctly stated the law. He was right that the decision of this Court in Oladejo’s case was a departure from the long established principle relating to consideration of confession and its retraction. Confession and testing any of the accused person shall be evaluated and assessed by the trial Judge together with the totality of the evidence in order to reach a just decision. Per Bello, CJN @ 293 – 294. Again, in UBIERHO VS.

THE STATE (2005) All FWLR (Pt. 254) 804, this Court aptly held: “Now, it is settled law that the fact that an accused has retracted a

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confessional statement does not mean that the Court cannot act upon it.” Per Oguntade, JSC @ 819.

In the circumstances, having effectively resolved the issue no. 1 against the Appellant, the appeal resultantly fails and same ought to be dismissed.

Hence, against the backdrop of the foregoing postulation, and the well detailed reasoning and conclusion reached in the lead judgment just delivered by my learned brother, the Hon. Justice M.K.O Kekere-Ekun, JSC, I too hereby dismiss the instant appeal. Accordingly, the judgment of the Court of appeal, Abuja Judicial Division, delivered on April 15, 2019 in appeal No. CA/A/1004C/2018, thereby affirming the ruling of the Federal High Court, Abuja delivered on October 22, 2014, is hereby affirmed. Appeal stands dismissed.

SAMUEL CHUKWUDUMEBI OSEJI, J.S.C.: The Federal High Court in its ruling delivered on the 22nd of October, 2014 dismissed the objection against the admissibility of the confessional statements of the Appellant (Exhibits B and B1).

The Appellant was dissatisfied with the said ruling of the learned trial judge and consequently appealed against the decision vide notice of

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appeal filed on 17th of December, 2014. The lower Court in a judgment delivered on the 15th of April, 2019 dismissed the Appellant’s appeal for lack of merit.

Still dissatisfied with the judgment of the lower Court, the Appellant appealed to this Court by filing a notice of appeal containing 10 grounds.

The following three issues were formulated for determination in the Appellant’s brief of argument filed on 20/11/2020 1. Was the Court of appeal correct when it affirmed the ruling of the learned trial judge that the prosecution proved that the two extra-judicial statements of the Appellant were made voluntarily and therefore admissible. Grounds 1, 2, 4, 5, 6, 7, 8 and 9 of the grounds of appeal. 2. Whether the Court of appeal justices were correct when they held that grounds 13, 17, 18 and 19 of the grounds of appeal raised fresh issues not raised before the trial Court and are incompetent.

Ground 3. 3. Did the Court of appeal consider the issues raised in grounds 3, 5, 6, 7, 8, 9 and 10 of the grounds of appeal before it and whether the failure did not occasion a miscarriage of justice. Ground 10

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In the Respondent brief of argument filed 4/2/2021, a sole issue was couched as follows- “Whether this Court can re-evaluate the evidence before the trial Court or upturn the concurrent findings of the trial and lower Court in the circumstances of this case?”

I have had the privilege of reading in draft, the judgment just delivered by my learned brother, Kudirat Motonmori Olatokunbo Kekere-Ekun JSC and I agree that the appeal lacks merit and should be dismissed.

The Appellant’s grouse is that there was a breach of Section 35(2) of the 1999 Constitution wherein he was forced to take a polygraph test against his will. He further stated that the taking of the polygraph test affected or influenced his narration on the confessional statement as he was also coerced into writing the confessional statement which was merely identified and was not tendered during the trial within trial.

In dealing with the question of the confessional statement not being tendered but merely identified, I will adopt the position of the learned trial Judge where he stated that it was not the content of the confessional statement that was in dispute but the voluntariness of the statement.

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The Appellant in his testimony stated that the polygraph test on him using a lie detector started on the 18/12/2012 and ended 24/12/2012 and the result was announced to him by the doctor who administered the test and that he passed the test. The confessional statements admitted in evidence as Exhibit B and B1 were made on 8/2/2013 and 25/2/2013 respectively.

As accurately put by the lower Court, there is nothing in evidence to show that there was a nexus between the polygraph test and the confessional statements, the Appellant failed to show how a polygraph test affected his confessional statement made two months after and also how the polygraph test deprived him of free will after two months. This line of argument by the Appellant indeed lacks substance. ​ The concurrent findings of the two lower Courts are unshakable and devoid of any element of perverseness.

For this and the more comprehensive reasons given in the leading Judgment, I also hold that this appeal is devoid of merit and it is accordingly dismissed. Appeal dismissed.

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Judgment

MARY UKAEGO PETER-ODILI, J.S.C. (Delivering the Leading Judgment): This is an appeal against the judgment of the Court of Appeal, Abuja Division; Coram, Abubakar Datti Yahaya, Regina Obiageli Nwodo and Tinuade Akomolafe-Wilson JJCA, delivered on the 7th day of June, 2013. In its judgment the Court below set aside the conviction and sentence of the appellant by the Federal High Court, Abuja for the offences of conspiracy defrauding of the nominal complainant (Ambassador Edem) and concealment of the sums of money allegedly defrauded.

The appellant (respondent at the lower Court) aggrieved by the decision of the Court below, filed a notice of appeal on 3rd day of July, 2013.

FACTS BRIEFLY STATED The accused person now respondent with another said to be at large were charged to the Federal High Court, Abuja in Charge No. FHC/ABJ/CR/161/2008 on a fifteen (15) Count charge of conspiracy, which is Count 1, defrauding of the nominal complainant (Ambassador Sam Edem) of various sums of money at different dates under Counts 2-14 and concealment of the sums of money allegedly defrauded of the nominal complainant which is Count 15.

​The respondent and

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one other person who is now at large was arraigned before the Federal High Court, Abuja on a fifteen (15) count charge contained in charge sheet dated and filed on 19/9/2008 for the offences mentioned in the charge.

At the trial, with 12 witnesses testifying for the prosecution and tendering 45 Exhibits, a no case submission was made on behalf of the 1st accused now respondent.

That Trial Court in a considered Ruling delivered on 23rd day of April, 2010 discharged the 1st Accused who is the Accused/Respondent herein on count 1, the count of conspiracy to defraud as well as counts 2-14 which alleged that the 1st Accused/Respondent herein defrauded the nominal complainant of about N800 million.

However, the Trial Court ordered that the 1st Accused/Respondent herein enter a defence on Count 15 relating to concealment of the money allegedly defrauded of the nominal Complainant as charged in counts 2-14.

In his defence, the 1st Accused/Respondent herein called one Eka Uluoma as DW1 and was duly cross-examined by the prosecution. The 1st Accused/Respondent also testified as DW2 and closed his case on conclusion of his cross-examination by

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the prosecution on the 10th November, 2010.

The crux of the 1st Accused/Respondent’s defence at the trial Court was that as far as the 15th Count was concerned, it is Ancillary or consequent upon the success of Counts 2-14 of the charge. At the end of the case of the defence, written addresses were submitted and adopted on the 23rd of March, 2012. (See page 500-501 of the Record of Appeal)

In its judgment, the trial Court found the 1st Accused/Respondent guilty of Count 15 of the Charge on concealment of what 1st Accused allegedly defrauded the nominal complainant even though the same Judge in a no case submission held that the Prosecution could not prove Counts 1-14 relating to the issue of defrauding the nominal complainant. The trial Court convicted the 1st Accused/Respondent for concealing sums of money part of the money referred to in counts 1-14.

​After convicting the 1st Accused/Respondent, the trial Court went further to sentence him to seven years imprisonment with hard labour. The Trial Court left the issue of forfeiture of the vehicle tendered as Exhibits as well as the money in the frozen account all belonging to the 1st Accused

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to abide by the decision of the Court of Appeal. (See page 736-737 of the record of appeal Volume 1)

AT THE COURT OF APPEAL Aggrieved with the decision of the Trial Court, the 1st Accused/Appellant therein appealed to the Court of Appeal vide a Notice of Appeal filed on the 14th day of May, 2012. The Notice of Appeal contained twelve (12) Grounds of Appeal filed on the 14th day of May, 2012.

The Prosecution/Respondent therein equally dissatisfied with the judgment of the trial Court on the issue of forfeiture, confiscation and restitution, cross appealed to the Court of Appeal vide a notice of cross appeal filed on the 31st July, 2012, on two grounds of appeal. (See Pages 928-932 of the record of appeal volume 2). The Justices of the lower Court formulated one issue for determination: “Whether Count 15 is dependent on Counts 2-14. In other words, whether the major ingredients of the offence to be proved in counts 15 are essentially the elements to be proved in counts 1-14.”

The Court below set aside the judgment of the trial Court and discharged and acquitted the appellant now respondent of count 15 upon which the trial Court had convicted

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him. The lower Court also dismissed the cross appeal of the respondent now appellant.

Dissatisfied by the Court of Appeal’s decision the appellant(respondent at the lower Court) has come before the Apex Court to ventilate his grievances on seven grounds of appeal.

On the 5/11/2020 date of hearing, learned counsel for the appellant, Simon Lough (ACP) adopted the brief of argument filed on the 7/3/2019 and deemed filed on 14/3/2019. In it were raised six issues for determination, viz:- (a) Whether the learned justices of the lower Court were right when they held that two elements of offence in count 15, that is fraud and concealment must be proved and count 15 is dependent on the success of counts 2-14.

Ground one and four. (b) Whether the learned justices of the lower Court properly evaluated the totality of the evidence adduced at the trial Court before coming to the conclusion that the judgment of the trial Court was a reversal of his former ruling. Ground two (c) Whether the learned justices of the lower Court denied the Appellant the right to fair hearing when they raised an issue suo motu and resolved same without inviting parties

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to address them on the said issue. Ground three (d) Whether the learned justice of the lower Court were right when, they held that if an accused person has been discharged of the principal offence he cannot be found guilty of conspiracy because the ancillary offence cannot proceed without the substantive offence.

Ground five. (e) Whether the learned justices of the lower Court were right when they held that from the provisions of Advance Fee Fraud Act 2006, count 15 was definitely a consequential charge dependent on the success of Counts 1-14 which the trial Court discharged the respondent upon the no case submission. Ground six. (f) Whether the learned justices of the lower Court denied the appellant fair hearing when they held that it amounted to a waste of time to consider the issues in the cross-appeal of the appellant before dismissing same. Ground seven.

Learned Counsel for the respondent, Agada Elechi, Esq adopted the brief of argument filed on 8/3/2013 and deemed filed on 14/3/2019. He adopted the issue formulated by the appellant and formulated two issues for determination thus- 1. Whether the lower Court was right in holding

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that count 15 of the Charge is ancillary and/or consequential upon the success of Counts 2-14 of the charge. 2. Whether the Court of Appeal was right in holding that the claim of the respondent/cross appellant goes to no issue since the substantial offence has not been established.

I shall make use of Issue (b) of the appellant as a sole issue since it meets with all the questions raised in this appeal.

SOLE ISSUE Whether the learned justices of the lower Court properly evaluated the totality of the evidence adduced at the trial Court before coming to the conclusion that the judgment of the trial Court was a reversal of his former ruling.

​Learned counsel for the appellant submitted that the Court below was in great error when they held that the two elements of the offence in Count 15, that is fraud and concealment must be proved and count 15 is dependent on the success of counts 2-14 of the charge. That the Court was also wrong when they held that a discharge of the principal offence means the accused person cannot be guilty of conspiracy because an ancillary offence cannot proceed without the substantive offence.

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For the appellant, it was further contended that count 15 of the charge on which the respondent was convicted is distinct and can be proved on its own without necessarily tying it to any other count in the charge sheet. He cited Section 7 of the Advance Fee Fraud and other Related Offences Act, 2006 in which Count 15 was charged.

That from the evidence of PW1-PW3 and exhibits 1-45 and the evidence of DW1-DW2, there was no doubt that it was established beyond reasonable doubt that the respondent conducted a financial transaction which involved the proceeds of an unlawful activity and the transaction was designed in whole to conceal the nature. That the trial Court found Count 15 of conspiracy as independent of Counts 2 – 14 of the charge and so could stand on its own. He relied on Shurumo v State (2010) 16 NWLR (pt. 1218) 65.

For the appellant, it was submitted that the judgment of the trial Court was based on a total evaluation of the evidence adduced at the trial and not a reversal of the ruling of the trial Court wherein he discharged the respondent. That the ingredients of the offence in count 15 of the charge upon which the respondent was convicted are

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distinct from the ingredients of the offences in count 1-14 of the charge.

Learned counsel for the appellant stated that the prosecution proved the offence in count 15 beyond reasonable doubt.

Mr. Lough for the appellant submitted that by Section 7(6) (d) of the Advance Fee Fraud Act, the form of the unlawful activity need not necessarily be specified as what is pertinent is that the accused knows or ought to know that the property involved in the financial transaction represents the proceeds of some form of unlawful activity and that was evident in the case at hand.

Learned Counsel for the appellant contended further that where a Court suo motu raises an issue it must give counsel opportunity to address on the matter before the verdict but in this case, counsel was not given that opportunity. He cited Ojo Osagie v Sunday Adonri(1994) 6 NWLR (pt. 349) 131 at 142.

That the right to fair hearing of the appellant was compromised when counsel did not address Court before verdict when the Court below raised the issue concerning the framing of the charge suo motu. He relied on Achuzia v Ogbomah (2016) 11 NWLR (pt. 1522) 59 at 81 etc.

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Learned Counsel for the respondent contended that the ruling of the trial Court stating as reason for convicting the accused/respondent of the offence of concealment is because the complainant/appellant proved her case beyond reasonable doubt on the strength of evidence led is perverse and contrary to reason. That count 15 cannot stand alone as the accused/respondent was exculpated of all fraudulent offences contained in Counts 2-14.

For the respondent, it was submitted that the learned trial judge indirectly amended the charge without calling upon the accused/respondent to plead to the amended charge. He cited Yusuf v State (2011) 18 NWLR (pt. 1279) 853.

That the effect of a defective charge is that the accused can be discharged on such a defective charge as a charge is to be clear and devoid of any form of ambiguity. He relied on Ojo v FRN (2008) 11 NWLR (pt. 1099) 467 at 513-514.

On the issue of the cross-appeal, the learned counsel for the respondent submitted that the Court of Appeal was right in holding that since the appeal against the conviction based on count 15 succeeded at the Court below and the respondent (appellant herein) was discharged

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and acquitted of same, there was no leg on which the cross appeal can rest.

I shall reproduce count 15 upon which the respondent was convicted. It reads as follows:- “That you Matthew Sonoma (alias Dr. Perebakwe Ogah) ‘m’ 34 years native Doctor of Bomadi Delta State on or about the 10/7/2008 with intent to conceal the money, you fraudulently collected from Ambassador Sam Edem (former chairman of NDDC) executed a transfer letter of the sun of One Hundred and Fifty-Two Million Naria (N152m) to be paid into your Oceanic bank Account number, 007170120031 and the said money was transferred into the said account.

You thereby committed an offence contrary to Section 7(2) (b) of the Advance Fee Fraud and Other Related Offences Act 2006.”

… 7(1) A person who conducts or attempts to conduct a financial transaction which in fact involved the proceeds of a specified unlawful activity- (a) With the intent to promote the carrying out of a specific unlawful activity; or (b) Where the transaction is designed in whole or in part – i. To conceal or disguise the nature, the location, the source, the ownership or control of the proceeds of a specified

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unlawful activity; or ii.

To avoid a lawful transaction under Nigerian law, is guilty of an offence wider this Act if he knows or ought to know, having regard to the circumstances of the case, that the transaction represents the proceeds of some form of unlawful activity. 7(2) A person who commits an offence under Subsection (1) of this Section is liable on conviction – (a) In the case of a financial institution or corporate body, to fine of N1 million and where the financial institution or corporate body is unable to pay the fine, it assets to the value of the fine shall be confiscated and forfeited to the Federal Government; or (b) In the case of a director, secretary or other officer of the financial institution or corporate body or any other person, to imprisonment for a term not more than 10 years and not less than five years.

​At page 54 of the Record, it is seen what the learned trial judge stated in respect of his Ruling on the no case submission, thus:- “It is not a ruling by which I made any finding that the 1st accused did not take or collect money from Ambassador Sam Edem, it was the purpose and method by which the said

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monies were collected that I was unable to reconcile with the allegation of threat and inducement when PW8 as the nominal complainant told the Court, contrary to the statement he made with the Police and amongst other things that the various sums of money which was paid to the 1st accused person were either loans or a friendly gifts and those which were loans the 1st accused person had promised to payback.”

The Court of appeal in its review of what the trial Court did, held as follows:- “When an accused person has been discharged at that stage of stolen goods for example, the accused charged for receiving the same goods cannot be found guilty of receiving the same goods upon which the accused person has been discharged, thus after a discharge on counts 1- 14 which required the proof of fraud as in count 15, there is no extant offence for the defence to answer”.

The question arising with respect to count 15 of the charge as to whether it is ancillary and/or consequential upon the success of counts 1-14.

It has to be noted that counts 2-14 related to the alleged fraud committed by the appellant when he, by inducement and threat, collected

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various sums of money from PW8 amounting to about N800 million. There is no gainsaying that to succeed in counts 2-14, the prosecution must prove fraud beyond reasonable doubt. Count 15 on its part has two essential ingredients of the offence which are- 1. There must be proof that the respondent fraudulently collected money from Ambassador Sam Edem (PW8). 2. After obtaining the money fraudulently in order to conceal the fraudulent acts, the respondent decided to transfer N152 million of part of the money so fraudulently collected into another bank.

It follows from the elements consisting count 15 that the money fraudulently collected has to be proved before the issue of concealment of the money comes into play. It then becomes difficult not to see the dependence of count 15 on Counts 2-14.

​The follow up question that arises is, if a person can be said to have fraudulently concealed sums of money he never stole and the persuasion is to answer in the negative in view of the ruling of the trial Court on the no case submission when he discharged the respondent on count 1, the charge of conspiracy to depend as well as counts 2-14 which alleged

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that the respondent defrauded the nominal complainant of about N800 million. The learned trial judge had held in the no case submission ruling that the prosecution failed to prove the alleged offences in count 1 – 14 beyond reasonable doubt, hence the discharge on those counts in effect taking along the evidence led could not prove the offence of count 15.

It needs be reiterated that in a criminal matter, a successful submission of no case to answer means no prima facie case has been made out against an accused person because the Prosecution has failed to prove the essential ingredients of the offence charged against the accused person. In other words, there is no admissible evidence linking the accused person in anyway with the commission of the offence with which he had been charged with. Section 286 Criminal Procedure Act Cap.

C41 Laws of the Federation 2004 states as follows: “If at the close of the evidence in support of the charge it appears to the Court that a case is not made out against the defendant sufficiently to require him to make a defence the Court shall, as to that particular charge, discharge him. Such a discharge is tantamount to an

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acquittal for which a plea of autrefois Prosecution”. Also, in the case of SUNDAY CHIJIOKE AGBO & ORS. V. THE STATE (2010) LPELR-4989 (CA) the Court of Appeal held thus: “The meaning of a no case submission is that there is no case for an accused person to answer as there is no evidence on which even if the Court believes it, it could convict. The question whether the Court does believe the evidence does not arise nor the credibility of the witness becomes an issue at this stage.” See also: Tongo v C.O.P (2007) 12 NWLR (pt. 1049) 525, STATE V ASUNMO & ORS (2017) LPELR-42606 (CA).”

Having exculpated the Accused/Respondent of all fraudulent offences as contained in Counts 2-14, it evidently means that Count 15 will fail too, as the basic ingredient of Count 15 is fraud. Thus, it is not severable from counts 2 – 14. In this, I agree with learned counsel for the respondent. Since the Prosecution/Appellant failed to prove the major ingredient of the offence in count 15 and since count 15 is predicated on the element of fraud, upon which the other ingredients of concealment revolve, if fraud fails then count 15 cannot stand. It automatically

16

crumbles like a pack of cards, as it has no legs upon which to stand. It is the Appellant’s contention in this appeal, that Section 7 of the Advance Fee Fraud and Other Related Offences Act 2006 under which the respondent was charged in count 15 of the charge did not mention the word “fraudulently”, but rather the words “unlawful activity”. Those words “unlawful activity” are merely semantics as they amount to fraud or such like description. It did not give count 15 the independence or distinct status of a lone ranger in the event that the other counts 1-14 failed.

The Court of Appeal was of the view that where an accused person has been discharged pursuant to a successful ruling on a no case submission of the substantive or main offence, the Court cannot proceed to convict on the ancillary offence. This is because the ancillary offence must necessarily be tied to the principal offence for it to stand as they share common ingredients of the offence charged. I cannot but agree more with those views expressed by the Court below. See Ikem v State (1985) 1 NWLR (pt.2) 378 at 388.

It must be brought to the fore that the learned trial judge by

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bringing in the words “unlawful activity” as what should be in count 15 as against the word “fraudulently” instead drafted by the prosecution in the charge. The learned trial judge indirectly amended the charge without calling upon the accused/respondent to plead to the amended charge and the plea not taken upon this surreptitious amendment to the charge has run foul of the law and our criminal jurisprudence. The fall out is that the whole trial was rendered a nullity. I rely on Yusuf v State (2011) 18 NWLR (pt. 1279) 853; Olabode v State (2007) All FWLR (pt. 389) 1301 at 1323.

​I have to state that an accused person can only be charged with the offence known to law and so when the prosecution used the word, “fraudulently” in the charge when Section 7(2)(b) (i) of the Advance Fee Fraud Act 2006 under which count 15 was brought had not used the word, while the learned trial judge had proffered his drafting skill when he said the words, “unlawful activity” ought to have been used by the prosecution in framing the count 15. What have been shown up is that the charge was defective and the appellant on that account should have been discharged. Courts are

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enjoined to ensure that a charge is clear and void of any form of ambiguities. See Ojo v FRN (2008) 11 NWLR (pt. 1099) 467 at 513-514.

Again to be noted is that Section 7(2)(b) of the Advance Fee Fraud and other Related Offences Act, 2006 quoted in count 15 of the charge is actually the punishment section as the section for the offence is Section 7(1) (b) (i) of the Act. A careful look at the words of the enactment – Section 7 (1) (b) (i) depicts that the phrase “unlawful activity” must be specified which means that the financial transaction which involves an unlawful activity to be identified, it must be named in the charge for the understanding of the accused person.

The activity must be tied to the unlawful transaction for it to be an offence, as the phrase “unlawful” in itself is vague. I hereby quote Section 7 (1) (b) (i) below: 7(1) “A person who conducts or attempts to conduct a financial transaction which in fact involved the proceeds of a SPECIFIED unlawful activity. b. Where the transaction is designed in whole or in part. c. To conceal or disguise the nature, the location, the source, the ownership or the control of the proceed

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of a SPECIFIED unlawful activity…” “ADVANCE FEE FRAUD AND OTHER RELATED OFFENCES ACT” Directly underneath this title is the interpretation or explanatory note and it states: “An Act to Prohibit and punish certain offences pertaining to Advance Fee Fraud and other fraud related offences and to repeal other Acts related there with”. Thus, count 15 which derives its validity from the above section, cannot see the light of day since fraud with which the Act is established for has been held not to have been proven. Thus, count 15 cannot stand on it’s own, it collapses with the others.

It can be seen that the Court of Appeal was right in its judgment on the fact that “unlawful activity” cannot be distanced from fraud.

On the matter of the cross-appeal, the appellant contends that it was denied fair hearing when the Court below held, it was a waste of time to go into the issue raised in the cross-appeal and went on to dismiss the cross-appeal. This position taken by the appellant is clearly misguided and without basis. The reason is because the cross-appeal is not against the discharge of the appellant on counts 1-14 but of the

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refusal of the trial Court to order confiscation, forfeiture and restitution after it had found the appellant (now respondent) guilty of the offence in count 15.

I do not hesitate in stating without hesitation that the Court of Appeal was right in throwing out the cross appeal without considering the issues raised therein as there was no foundation on which the cross appeal lay with counts 2-14 on which it earlier rested no longer in existence, therefore a void remained hence the Court below was left with the only option which is to discountenance the cross-appeal as there was nothing on which it was hinged. Something cannot be placed on nothing since it cannot stand. See UAC v Mcfoy (1961) 3 All ER 1169.

It is clear that this appeal from the foregoing lacks merit and I dismiss it. I affirm the judgment of the Court of Appeal which set aside the decision, conviction and sentence of respondent. I reaffirm the acquittal and discharge of the respondent. Appeal dismissed.

OLUKAYODE ARIWOOLA, J.S.C.: I had the opportunity of reading in draft the lead judgment of my learned brother, Peter-Odili, JSC just delivered. I am in agreement with the reasoning

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therein and conclusion arrived thereat, that there is no merit in the appeal and it should be dismissed. I too will dismiss it. Appeal dismissed.

CHIMA CENTUS NWEZE, J.S.C.: I had the advantage of reading the draft of the leading judgment, which my bother, Mary Ukaego Peter-Odili, JSC delivered now. I agree with His Lordship that there is no merit in this appeal. It therefore, deserves to be dismissed.

As noted in the leading judgement, the learned trial Judge, indirectly, amended the Charge. The accused person (respondent herein) was not called upon to plead to the amended Charge. As such, his plea was not taken.

Now, “the prisoner at the Bar [that is, the accused person]” per Idigbe JSC in Nwafor Okegbu v State (1979) LPELR-SC.9/1977, upon being arraigned before the Court, has two options. In the first place, he may confess to the charge by a plea of “guilty”. In such a situation, the issue joined between him and the prosecution is a confession. Where there is that kind of admission of guilt, it would be non sequitur to talk of the legal burden of proof. This is so for no burden of proof rests on the prosecution, it having been

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discharged by the admission of the accused person, Dongtoe v CSC, Plateau and Ors [2001] FWLR (pt 50) 1671; Adeniji v The State [2001] 13 NWLR (pt 730) 375; Akibu Hassan v State [2001] 7 NSCQR 107; Gozie v State [2003] NSCQR 754; Nwachukwu v State [2002] 11 NSCQR 613. On the other hand, he may deny the charge by pleading (by word of mouth -ore tenus) “not guilty.” Where he takes this option, the issue joined is a wager of the prosecution to prove.

In other words, “he is deemed to have put himself upon his country for trial and wagers the prosecution to the proof of every fact and circumstance constituting the offence or offences in the charge or information,” per Aniagolu JSC (of the Blessed Memory) in Nwafor Okegbu v State (supra).

As shown above, the bone of contention here is that, after the surreptitious amendment, the trial Court proceeded with the trial without taking a fresh plea from the accused person/respondent.

​Now, what crystallizes from the majority of the decisions is that, where in the course of trial, a charge or information is amended, a fresh plea must be taken. Failure to obtain a new plea would render the trial null and

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void, Eronini v The Queen (1953) 14 WACA 366, 369; R v Fox (1947) 12 WACA 215; R v Ogunremi (1961) ANLR 467; A. G. Western Region v Raimi Adisa (1966) NMLR 144, 146; Joseph Okosun v State [1979] 3-4 SC 36, 52; Okwechime v Police (1956) 1 FSC 73; Jones v Police (1960) 5 FSC 38, approvingly, cited per Irikife JSC (as he then was) in Nwafor Okegbu v State (supra); Kajubo v The State [1988] 11 NSCC 475.

In this connection, it may be noted that “there can be [no] further quibble about the meaning of the words ‘alteration’ and ‘amendment.’ Indeed, there is no “doubt that an ‘amended’ charge has thereby, been ‘altered,'” per Jibowu Ag. FCJ in Okwechime v Police (supra), endorsed per Aniagolu JSC inNwafor Okegbu v State (supra). It is immaterial that the alteration in the charge is of a minor and trivial nature, Youngman v. Commissioner of Police (1959) 4 FSC 283, 284-285; Jones v Police (1960) 5 FSC 38; Joseph Okosun v State (supra); Eronini v Queen (supra); O.

Doherty, Criminal Procedure in Nigeria: Law and Practice (London: Blackstone Press Ltd. 1990; 1999) 234; see, however, O. A. Onadeko, The Criminal Trial Procedure (Lagos: Lannon Nigeria Ltd. 1998) 235.

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It is for these, and the more detailed reasons in the leading judgment that I too, shall enter an order dismissing this appeal. I abide by the consequential orders in the leading judgement. Appeal dismissed.

EJEMBI EKO, J.S.C.: I agree, as Lady MARY UKAEGO PETER-ODILI, JSC has just held in the judgment just delivered in this appeal, that this appeal lacks merits.

The sum of N152,000,000.00; the subject of count 15 at the trial Court, formed part of the sum of N800,000,000.00 the respondent had allegedly defrauded the complainant of. This larger sum of N800M formed the substance of counts 2 – 14. At the close of the prosecution (the appellant’s) case at the trial Court and upon a “no case” submission, the trial Court upheld the no-case submission and absolved the respondent of any criminal liability in respect of counts 1 – 14.

The respondent was however ordered to defend himself on count 15 that suggested inter alia that the respondent – “With intent to conceal the money fraudulently collected (the sum the subject of counts 2 – 14) executed a transfer letter of (N152M) to be paid into (the respondent’s) Oceanic Bank Plc

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account and the said sum was transferred into the said account” – contrary to Section 7(2)(b) of the Advance Fee Fraud and other Related offences Act. At the expense of repetition, the sum of money the subject of Counts 2 – 14 is N800M.

Count 15 specifically alleged that the respondent, with intent to conceal the fraud the subject of counts 2 – 14 – the N800M fraudulently collected from the complainant, executed a transfer letter (of instruction) that the sum of N152M (out of the N800M) be paid into his personal account domiciled with the Oceanic Bank Plc and the said N152M was accordingly transferred. ​The trial Court; notwithstanding that it had dismissed counts 1-14 against the respondent – finding not proved the allegations that the respondent herein fraudulently received or collected the total sum of N800M from the complainant, had nonetheless ordered the respondent to enter upon his defence on count 15, which he did, and eventually convicted him of criminally transferring N152M (out of the same N800M) with intent to conceal the fraud involving the said N800M.

It sounds rather illogical. The lower Court, on the appeal of the respondent; had

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set aside the warped reasoning of the trial Court; hence this further appeal by the prosecution. Curiously; the appellant; as the prosecutor, did not appeal the finding that the facts constituting the bases for counts 1 – 14 were not proved against the respondent. A specific finding of fact, adverse to party, not appealed by such party is taken as conclusive and acceptable to such a party. This is both trite and common sense.

The law on autrefois acquit, as codified in Section 36(9) of the 1999 Constitution, as amended, is that No person who shows that he has been tried by any Court of competent jurisdiction or tribunal for a criminal offence and either convicted or acquitted shall again be tried for that offence or for a criminal offence having the same ingredients as that offence save upon the order of a superior Court.

In other words, the statutory defence in Section 36(9) of the Constitution operates as ”estoppel per judicatam” – estopping the appellant, as the prosecutor, from further asserting that the respondent fraudulently collected or obtained the sum of N800M from the complainant: part of which sum is the amount of N152M the respondent

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allegedly caused to be transferred to his Oceanic Bank Plc account, the subject of Count 15. On this note, I agree with Dr. Agada Elachi, of counsel to the respondent, that the holding of the trial Court, upon a no case submission, that the respondent did not defraud the complainant of N800M is conclusive that the said sum was obtained or collected from the said complainant by the respondent criminally. Apropos, count 15 cannot stand independent of counts 2 -14.

At pages 725 – 726 of the Records – the trial Court, in order to avoid the consequence of its adverse finding that counts 2-14 were not proved, attempted a disingenuous, albeit unethical, amendment of count 15 suo motu by formally removing therefrom the word “fraudulently” and substituting therefor the words: “unlawful activity”. This, the trial Court did unilaterally without due concurrence of the prosecution or the defence.

The reason for this quixotic justice is that in the wording of the relevant statutory provision; the word fraudulently was not there, rather it was the word: “unlawful activity”. The prosecutor, not the impartial Court, framed the charge(s). He it is, who should

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also apply to amend his charge. The trial Court, lacking the power to suo motu amend the charge(s), had thus descended into the arena and violated the respondent’s right to fair hearing guaranteed by Sections 17(2)(e) and 36 of the Constitution sustaining the principles of natural justice requiring its impartiality, neutrality and never to be a judge in his own cause (nemo judex in causa sua). In any case, the raison d’etre of the trial Court for its act of desecration of the hallowed principle of natural justice or fair hearing was hollow. It lacked substance.

Unlawful activity, I dare say, includes fraud, fraudulent activity or illegality. The trial Court’s unilateral amendment, done suo motu, is a clear evidence of the trial Judge’s vested interest that the respondent must be convicted at all costs. The unethical amendment was a clear evidence that the charge in count 15 was fundamentally defective, entitling the respondent (the accused person) to the benefit of doubt.

​This should have conveniently ended the matter. I will however comment briefly on the appellant’s suggestion that the complainant was entitled to be restituted. He would only have been

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entitled to be restituted if the prosecution had proved successfully and satisfactorily and beyond reasonable doubt that the respondent had defrauded him (the complainant) through some unlawful activity. The trial Court’s finding, dismissing counts 2 – 14 in favour of the respondent, completely forecloses and estops the prosecution from insisting on any restitution order. Appeal dismissed.

UWANI MUSA ABBA AJI, J.S.C.: The Respondent with another now at large was charged to the Federal High Court, Abuja, on a 15 count charge of conspiracy, defrauding and concealment of money. 12 witnesses testified for the prosecution with 45 Exhibits tendered. A no case submission was made on behalf of the Respondent and in its ruling; the Respondent was discharged on the count of conspiracy and counts 2 to 14 by the trial Court. He was ordered to enter his defence on count 15, being concealment of the money.

He was however found guilty on count 15, convicted and sentenced to 7 years imprisonment with hard labour, while the issue of forfeiture of the vehicle tendered as exhibit and money in the frozen account belonging to the Respondent was unattended to by the trial

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Court. The decision of the trial Court generated both an appeal by the Respondent and a cross appeal by the Appellant to the lower Court. In its considered judgment, the lower Court discharged the Respondent on count 15 and dismissed the cross appeal of the Appellant. Dissatisfied, the Appellant has now appealed to this Honourable Court, seeking for determination of 6 prolific issues while the Respondent distilled 2 issues for determination of this appeal.

I adopt the issue couched by my learned brother, Odili, JSC, thus: Whether the learned justices of the lower Court properly evaluated the totality of the evidence adduced at the trial Court before coming to the conclusion that the judgment of the trial Court was a reversal of his former ruling.

By the ruling on the no case submission made by the trial Court, the Respondent was discharged of Counts 2-14 of the charge but subsequently convicted and sentenced on count 15. ​It must be understood that the 15 count charges against the Respondent were intricately interwoven and bound round one another. To exculpate him from counts 2- 14 means that count 15 has also lost its grip on him since they are all

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connected and allied offences that have same string binding them together. Besides, where a no case submission is upheld, it means that no prima facie case has been made against the accused person. A no case to answer can properly be made and upheld: (a) when there has been no evidence in the alleged offence; (b) when the evidence adduced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable Tribunal could safety convict on it. See IBEZIAKO V. COMMISSIONER OF POLICE (1963) 1 ALL N.L.R. 61, ATANO V.

ATTORNEY-GENERAL, BENDEL STATE (1988) 2 NWLR (PT. 75) 201. It is well settled that after a successful submission of no case to answer has been made, an accused is no longer to be regarded as charged with that offence of which he was charged and must be discharged on the merits. See Per UMARU ATU KALGO, JSC in FIDELIS UBANATU V. COMMISSIONER OF POLICE (2000) LPELR-3280(SC) (P. 28, PARAS. D-E). Per ADOLPHUS GODWIN KARIBI-WHYTE, JSC in ADEBAYO ADEYEMI v. THE STATE (1991) LPELR-172(SC) (P. 58, paras. B-E), explained the situation clearer thus: Under our Constitution, there is no onus

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on an accused person to establish his innocence. Hence, where at the close of the case of prosecution, no case has been made out against the accused, asking him to answer any charge connected with the offence with which he has been discharged is a reversal of the constitutional presumption of innocence by asking him to establish his innocence. No Court has such a jurisdiction… Consequently; every proceeding subsequent to the violation of the provisions of Section 36(5) of the Constitution is void having been conducted without competence.

​I therefore stand with the decision of my learned brother, Mary Peter Odili, JSC, that this appeal lacks merit. I hereby dismiss same.

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Judgment

AMINA ADAMU AUGIE, J.S.C. (Delivering the Leading Judgment): On 25/1/2014, at Kalgo Town, Kalgo Local Government of Kebbi State, a group of hunters, including the Appellant and one Mohammed Bandi, went on a hunting, expedition, and a fight broke out over bush meat.

Offended by what Mohammed Bandi said to him during the fight, the Appellant used an axe to inflict injury on Mohammed Bandi’s head.

Mohammed Bandi was first taken to a Hospital in Birnin Kebbi, and was later transferred to the University Teaching Hospital, Sokoto, where he died twelve days later. The Appellant was arraigned before the High Court of Kebbi State and charged with the offence of culpable homicide punishable with death. After a trial in which four witnesses testified for the Prosecution, and he testified in his own defence, the Appellant was found guilty and was convicted and sentenced to death.

He appealed to the Court of Appeal but his appeal was dismissed; the Court of Appeal affirmed the decision of the trial Court. Aggrieved, he has appealed to this Court with a Notice of Appeal containing three Grounds of Appeal, and he formulated the following issue in his Brief:

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Whether from the evidence before the trial Court, the Respondent proof (sic) the offence of culpable homicide with death beyond reasonable doubt against the Appellant.

The Respondent adopted the sole issue as formulated by the Appellant, including the use of the word “proof” instead of proved, in its own Brief.

I must say that the Issue for Determination as formulated by the Appellant and adopted by the Respondent leaves much to be desired. There was no mention of the Court of Appeal and it is well settled that there is no nexus or connection between this Court and the trial Court; not directly anyway. The Findings of a trial Court must be affirmed or reversed by the Court of Appeal before its decision gets to this Court – see Uor V. Loko (1988) 2 NWLR (Pt. 77) 430, Djukpan V. Orovuyovbe (1967) 1 All NLR 134, Ajuwon V. Adeoti (1990) 2 NWLR (Pt. 131) 271.

But this Appeal involves a death sentence, and it is clear that the issue for determination is simply whether the Court of Appeal was right to affirm the trial Court’s decision that the Appellant is guilty as charged for the offence of culpable homicide punishable with death. First of

2

all, there was no direct evidence of what transpired between the Appellant and the deceased; no one saw him inflict injury on the deceased’s head. The first three witnesses called by the Prosecution only narrated what happened after the deceased was injured and taken to the Hospital(s).

However, the Appellant’s Confessional Statements to the Police were admitted in evidence as Exhibits 2 & 3 through the Investigating Police Officer, CpI. Abdullahi Lawal, who testified as PW4. In Exhibit 2, recorded by the said PW4 on 6/2/2014, the Appellant stated as follows:

On Saturday – 25/01/14 – – we went to the bush for hunting in a group, after we went there, we started fighting each other and the reason for the fight was bush meat. There is one man by name Mohd Bandi, he said he wanted to kill me during the fight, from there he remove his cutlass and I remove my own, from there I cut him on his head and I ran away inside town (sic), from there Police arrested me and brought me to the Police Station. I was in the Prison yard when I heard the information that Mohd Bandi has died.

3

In Exhibit 3, recorded earlier on 27/01/14, he had stated as follows – It was on Saturday, 25/01/12 – – we went hunting to commemorate one of our member, by name Nasiru who his mother gave birth, myself, I was in Tauri group, while the victim was in the group of hunters. In the bush gauro. Then the victim Bandi said his boys suppose to kill me. When we return back to town, I saw Bandi coming from his house myself was passing the road, we met from there Bandi commented that he will kill me. From there we started fighting. Bandi has a knife, myself I have axe.

I was able to cut him on his head, he sustained injury blood was rushing all over. Then, I decided to run and hid in the bush, later I was arrested. I knew that Bandi was taken to Hospital. That is all my statement.

In his evidence as DW1, while testifying in his own defence, he said – On the 25th day of January 2014 at about 1 o’clock, I was in the bush on a hunting expedition. We were in a group so many of us. I know the Charge against me. On that they (sic) there was a fight over game, which included the use of sticks. I know Mohd Bondi. He was involved in the fight. The fight also included the use (of) matchets. In the course of the fight, Mohd Bondi struck me and I struck him back. He struck me on the left shoulder. The Charge against me is not true I am not guilty.

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In his Judgment delivered on 30/6/2015, the learned trial Judge, I. B. Mairiga, CJ, evaluated the evidence vis-a-vis ingredients of the offence, and found that “it was the injury inflicted on the head of the deceased”. He considered the “availability of the defence of self-defence and provocation under the scenario presented by the Defence”, and held – From the totality of evidence adduced before me – – neither the self-defence nor provocation can avail the Accused in the circumstances.

The Accused is accordingly found guilty as charged and is convicted of the offence of culpable homicide punishable with death contrary to Section 221 (a) of the Penal Code. The Accused having (sic) is hereby sentenced to death.

In its Judgment of 8/6/2017, the Court of Appeal concluded as follows: The Appellant having used an axe in striking the deceased on the head, must have intended killing the deceased. Consequently, the trial Court has come to the correct conclusion that an offence of culpable homicide punishable with death has

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been committed by the Appellant. Learned counsel for the Appellant has made an allusion that Exhibits 2 and 3 ought not to have been relied upon by the trial Court in convicting the Appellant, contending that same is a qualified confession. The word “qualified” connotes to some restriction or limitation. I have reproduced the relevant Statement of the Appellant and same in my view admits no limitation, restriction or condition.

A confessional statement made by an Accused Person which is properly admitted in evidence is in law, the best pointer to the truth of the role played by such Accused Person in the commission of the offence. Such confessional statement can be accepted as satisfactory evidence upon which alone the Accused can be convicted. In the instant case, it is clear from the Statement that the Appellant positively and unequivocally admitted hitting the deceased with an axe on the head. Thus, the confessional statement of the Appellant alone was sufficient to sustain his conviction.

I am not unaware of the fact that the Appellant, while testifying in chief retracted where he stated at page 26 of the Record: “I know Mohd Bandi. He was involved in

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the fight. The fight also included the use (of) matchets. In the course of the fight, Mohd Bandi struck me and I struck him back. He struck me on the left shoulder. The Charge against me is not true I am not guilty”. Once the trial Court is satisfied, as the trial Court was in this case, that the Statement is free, voluntarily made, unambiguous, true, direct and positive with reference to the offence charged, it can convict on it. Thus, the U-turn made by the Appellant was of no avail. See FRN V. Iweka (2013) 3 NWLR (Pt. 1341) 285 at 336.

In conclusion, I hold that this Appeal lacks merit and is accordingly dismissed. The Judgment of the lower Court, coram Hon. Justice I. B. Mairiga, CJ, …… delivered on 30/7/2015 is hereby affirmed.

It is the Appellant’s contention in this Appeal that the Court of Appeal erred in law when it affirmed the Judgment of the trial Court because there was no evidence to prove the ingredients of the offence charged. He argued that PW1, PW2 and PW3 gave hearsay evidence and pointed to discrepancies between his name and the names on Exhibits 2 and 3. To put it in his own words, he argued as follows at pages 5-7 of his Brief:

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Exhibit 2 is a statement made by one “Moh’d Sani S/Yaki.” The Appellant’s name is Mohammed Sani Kalgo. Exhibit 2, which is in a foreign language and not in [his] name cannot be used to convict [him]. Exhibit 3 – – is a statement made by one “Mohd Sani Kalgo S/Yaki”. The Appellants’ name is Mohammed Sani Kalgo hence Exhibit 3 is not relevant to [his] case. Assuming but not conceding that “Mohd Sani Kalgo S/Yaki’ in Exhibit 3 is the same as ‘Mohammed Sani Kalgo’ on the Charge Sheet – – The Court after judicially noticing [him] as an illiterate cannot assume that Exhibit 3 is made by [him].

Exhibit 2 in the name “Mohd Sani S/Yaki” is not the same as Exhibit 3 in the name “Mohd Sani Kalgo S/Yaki” – – The Appellant ‘Mohammed Sani Kalgo’, whose name did not appear on Exhibit 2 and 3 as such; but a different name “Mohd Sani S/Yaki” and “Mohd Sani Kalgo S/Yaki” created a whole lot of doubt as to whether the three names are one and the same thing. The trial Judge and the Respondent were wrong in law when they refused to clear this doubt by a corroborative evidence; hence such doubt will be resolved in favour of the Appellant.

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He also submitted that the said discrepancies and inconsistencies in the names on Exhibit 2 and Exhibit 3 and his own name is a fundamental and core issue, which must be resolved in his favour; and citing the case of Musa Ikaria V. State (2013) 8 NCC 253, he urged this Court to so hold.

The Appellant, who filed a 9-page Brief, had nothing more to say. The Respondent filed a 15-page Brief, wherein it canvassed arguments and made submissions ranging from the ingredients of the said offence to the state of the law on means of proof and confessional Statements.

The points made by the Respondent are well taken but the fact is that the Appellant concentrated all his arguments on the discrepancies between his name on the Charge Sheet and names on Exhibits 2 and 3.

On this score, the Respondent simply submitted that “the days of technicalities are over”; that the facts and circumstances of this case are so glaring that the identification of who killed the deceased is not in doubt; that the attitude of the Courts now is to do substantial justice without undue adherence to technicalities, citing Adelusola V. Akinde (2004) 18 NSCQLR 371, Fagunwa V. Adibi (2004) 19 NSCQLR 415; and that the Prosecution had proved its case beyond reasonable doubt.

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Now, it is an established principle of criminal law that the burden of proving a fact, which if proved, would lead to the conviction of the Accused Person, is on the Prosecution, and the Prosecution is enjoined to prove such fact beyond reasonable doubt. What is more, any doubt as to the guilt of the Accused must be resolved in favour of the Accused -Ahmed V. State (1999) 7NWLR (Pt. 612) 641, Oforlete V. State (2000) 12 NWLR (PL 681)415, Kalu V. State (1988) 4 NWLR (Pt. 90) 502/513. The legal definition of doubt is “to question or hold questionable.

Uncertainty of mind; the absence of a settled opinion or conviction”; and a “reasonable doubt” is defined as “such a doubt as would cause a reasonable and prudent person – – to pause and hesitate to act upon the truth of the matter charged. It does not mean a mere possible doubt, because everything relating to human affairs – – is open to some possible or imaginary doubt”- legal-dictionary.thefreedictionary.com.

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As the Respondent rightly submitted, the Prosecution must prove its case “beyond reasonable doubt”, and as Oputa, JSC, observed in Bakare V. State (1987) 1 NWLR (Pt. 52) 579, the said standard of proof “stems out of the compelling presumption of innocence inherent in our adversary system of criminal justice”. He further explained as follows: To displace this presumption, the evidence of the Prosecution must prove beyond reasonable doubt, not beyond the shadow of any doubt, that the Person accused is guilty of the offence charged.

Absolute certainty is impossible in any human adventure including the administration of criminal justice. Proof beyond reasonable doubt means just what it says. It does not admit of plausible and fanciful possibilities but it does admit of a high degree of probability. As Denning, J. (as he then was) observed in Miller v. Minister of Pensions (1947) 2 All E. R. 373: – “The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice.

If the evidence is so strong as to leave only a remote possibility in his favour, which can be dismissed with the sentence – ‘of course it is possible but not in the least probable’, the case is proved beyond reasonable doubt”.

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In the case now on appeal, it is possible that a man slipping and falling and hitting his head on a motorcycle pedal may sustain some injury to the head but it is highly improbable that he will have a cut as deep and as wide as that described by the medical evidence of PW6. Also, it is to be noted that there is no burden on the Prosecution to prove its case beyond all doubt. No, the burden is to prove its case beyond reasonable doubt with emphasis on reasonable. Not all doubts are reasonable.

Reasonable doubt will automatically exclude unreasonable doubt, fanciful doubt, imaginary doubt and speculative doubt – a doubt not borne out by the facts and surrounding circumstances of the case. So, as much as the Prosecution has to prove its case against an Accused “beyond reasonable doubt”, the emphasis is on the word “reasonable”, and the word “reasonable” means “fair, proper or moderate under the circumstances; according to reason”- see Black’s Law Dictionary, 9th Ed.

In this case, the Appellant insists that the three different names in the Charge Sheet and the Confessional Statements created doubts in the case against him; and the trial Court and Respondent were wrong “when they refused to clear this doubt by a corroborative evidence”.

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I have gone through the Record of Appeal, and I cannot see where the Appellant raised an objection on this ground to warrant a complaint that the trial Court and the Respondent refused to clear the said doubt, and this is not the time and place to raise such an Issue in this Court. This Court has repeatedly said that the appropriate time to object to the admissibility of a Statement said to be a Confession is when the Statement is sought to be tendered-see Oseni V.

State (2012) 5 NWLR. (Pt. 1293) 351, wherein I.T, Muhammad, JSC (as he then was) observed: The Appellant’s counsel at the trial stage did not object to the admissibility of [his] confessional statement, yet he went on to blame the trial Court in not treating [the] confessional statement with utmost caution. It [is] too late in the day to seek to supply a remedy to a dented or a crucified matter, which can hardly be revived. – – It is too late to seek to retract such confessional statement after its admission without objection from the defence.

It is – -taken as an afterthought, which Courts are not ready to accommodate.

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In this case, the Appellant did not object to the admissibility of the said Confessional Statements [Exhibits 2 & 3], when the Prosecution applied to tender them in evidence through PW4; he did not raise the issue in in his Final Address; and the trial Court did not consider any such issue. The Notice of Appeal he filed at the Court of Appeal contains five Grounds of Appeal but there is no complaint therein regarding the said discrepancies, and the Court of Appeal did not consider any such issue.

So, the Appellant is raising this issue for the first time in this Court, but he is asking for the impossible because, this Court is not in a position to consider any issue that was not determined by the two lower Courts – see Uor V. Loko (1988) 2 NWLR (Pt. 77) 430, wherein this Court held: It is the opinion appealed against, which is affirmed or reversed. Hence, without the benefit of such opinion, an appellate Court will be extremely reluctant to interfere.

Any Judgment – -founded on grounds not canvassed in the Court below and not adverted to and pronounced upon in the Judgment appealed against ideally is not an appeal against

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such a Judgment. Since an Appellant’s right of appeal is circumscribed within the parameters of the Judgment appealed against, this Court will not lightly permit impugning the Judgment on grounds of error other than are contained therein.

Moreover, an appellate Court will very rarely, if at all, interfere with the findings of facts made by the trial Court because as this Court observed in Ibafidon V. Igbinosun (2001) 8 NWLR (Pt. 716) 653, “such findings of fact enjoy the privilege of passing through the furnace of acrimonious cross-examination, the tooth comb scrutiny of the observation of the witnesses’ reactions and assessment of the veracity of their testimony”.

Be that as it may, looking at the merits of the case, I have to agree with the Respondent that the identification of who killed the deceased, is not an issue in this case. Yes, the Prosecution is enjoined to prove its case beyond reasonable doubt, and yet, not all doubts are reasonable. Reasonable doubt automatically excludes unreasonable doubt, fanciful doubt, imaginary doubt and speculative doubt-a doubt not borne out by the facts and circumstances of the case – see Bakare V. State (supra).

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In this case, the Appellant admitted in his evidence as DW1 that he fought with the deceased; that the fight included “use of matchets”. that the deceased struck him; and he, the Appellant, “struck him back”. In Exhibit 2, the Appellant stated that he cut the deceased on the head, and in Exhibit 3, he stated that after he used his axe to cut the deceased on the head, “he sustained injury (and) blood was rushing all over”. So, the Appellant linked himself to the injury on the head of the deceased.

In affirming the trial Court’s finding that it was the injury on the deceased’s head that caused his death, the Court of Appeal observed: It is not in contest that Muhamad Bondi Kalgo – – is dead. It is also on record that the deceased sustained injury on the head as a result of which he was rushed to the Hospital wherein he died after 12 days of admission at the Usman Danfodio University Teaching Hospital, UDUTH. Likewise, there is no other person that struck the deceased with an axe on the head.

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I agree. There is no other person that struck the deceased on the head with an axe except the Appellant, and in the circumstances of this case, the discrepancies in the names on the Charge Sheet and Exhibits 2 & 3, could not have raised any doubts in the Prosecution’s case against him.

The concurrent findings of the two lower Courts are unassailable. The Appellant’s confession in Exhibits 2 & 3 rings true and is in harmony with his admission as DW1 that he struck the deceased during a fight.

This Appeal lacks merit. It fails and it is dismissed. I affirm the Judgment of the Court of Appeal that upheld the trial Court’s decision.

OLABODE RHODES-VIVOUR, J.S.C.: I had the advantage of reading in draft a copy of the leading judgment delivered by my learned brother, AUGIE, JSC. I am satisfied that concurrent findings of facts by both Courts below cannot be disturbed. Accordingly the Appeal lacks merit. It is also dismissed by me.

KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, J.S.C.: I have had a preview of the judgment of my learned brother, Amina Adamu Augie, JSC just delivered. I agree entirely that the appellant has failed to show any special circumstances to warrant interference with the concurrent findings of fact made by the two lower

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Courts, particularly as the appellant positively and unequivocally confessed to the crime in his extra judicial statement, which was admitted at the trial without any objection.

I find no merit in the appeal. For the reasons well stated by my learned brother, I also dismiss the appeal and affirm the judgment of the lower Court. Appeal dismissed.

CHIMA CENTUS NWEZE, J.S.C.: My Lord, Augie, JSC, obliged me with the draft of the leading judgement just delivered. I agree with His Lordship that this appeal is devoid of merit.

As His Lordship pointed out in the leading judgement, it is an established principle of criminal law that the burden of proving a fact, which if proved, would lead to the conviction of the accused person, is on the Prosecution. This is true. Indeed, this is an offshoot of the prescription that in criminal cases, the burden of proof remains on the prosecution throughout and does not shift to the accused person, except in a few limited circumstances, such as where an accused person raises a defence of insanity, The State v.

Emine [1992] 7 NWLR (pt. 256) 658; Ogundiyan v The State [1991] 3 NWLR (pt. 181) 519; [1991] 4 SCNJ 44; Alonge v IGP (1959) 4 FSC 203; [1959] SCNLR 516.

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This notion of the Prosecution’s burden derives from our accusatorial criminal justice system under which, in contradistinction to the inquisitorial system, it is anathematic to expect an accused person to purge himself of guilt since the fundamental law of the country, the Constitution, avails him of the presumption of innocence until proven otherwise, Uso v C. O. P [1972] NSCC 631; Kinnami v. Bauchi Native Authority (1957) NRNLR 42, approvingly, adopted in Ani and Anor v The State (2009) LPELR -488 (SC) 14 -15, D-E; Section 36 (5) thereof.

This is, actually, a fundamental principle of most commonwealth penal laws, often couched in the ancient maxim in dubio pro reo – a principle which has been interpreted as imposing the burden of proving the guilt of an accused person on the prosecution, Obiakor v. State (2002) 10 NWLR (pt. 776) 612; Bello v State (2007) 10 NWLR (pt. 1043) 564, 585 Oladele v. Nigerian Army (2004) 6 NWLR (pt. 868) 166.

In the instant case, the concurrent findings of the lower Courts are unassailable. There is no merit in this appeal. It is for these, and the more detailed,

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reasons in the leading judgement that I shall dismiss this appeal as the arguments in support thereof are, entirely, vacuous. I abide by the consequential orders in the leading judgment. Appeal dismissed.

UWANI MUSA ABBA AJI, J.S.C.: I have read in draft the lead judgment of my learned brother, Amina Adamu Augie, JSC, just delivered and I agree that this appeal be dismissed on the reasons and conclusion advanced by him.

A fight broke out over bush meat on 25/ 1/2014 at Kalgo town, Kalgo Local Government Area, Kebbi State, when a group of hunters including the Appellant with one Mohammed Bandi went for hunting. The Appellant offended by what Mohammed Bandi, the deceased, said unto him during the fight, used an axe to inflict injury on his head. From the hospital in Birnin Kebbi, he was transferred to the University Teaching Hospital Sokoto, where he died after 12 days. Charged with culpable homicide punishable with death, the Appellant was convicted and sentenced to death.

He lost his appeal at the lower Court, hence this appeal. He sought for determination: ​Whether from the evidence before the trial Court, the Respondent proof (sic) the offence of culpable homicide punishable with death beyond reasonable doubt against the Appellant.

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The Appellant’s defence at the trial Court was self defence and provocation, which same were discountenanced. To simultaneously put up self defence and provocation is to shoot oneself at the foot. Accused persons who scamble for defences to save themselves from drowning often go into unpardonable errors to lump up defences that cannot agree or betray their innocence and inculpability in an offence.

Self defence and provocation are not birds of the same feather nor same bed fellows, hence, wherever and whenever they are raised together, the innocence of the accused person is already jeopardized. PER CHIMA CENTUS NWEZE, JSC in EMMANUEL OGAR AKONG EDOKO V. THE STATE (2015) LPELR-24402(SC) (PP. 62- 63, PARAS. A-C), expatiated the matter thus: Whereas the Criminal Code provides for self defence in Sections 286 and 287, the same code provides for the defence of provocation in Section 284.

Whilst the former [the defence of self defence] is an exculpatory defence, because, where it is established, it exonerates the accused person…the latter (the

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defence of provocations) is, merely, an attenuating or a mitigating defence. Where available, it merely, attenuates; dis-rates or demotes the offence from murder to manslaughter. In effect, the defence of provocation does not exonerate the accused person.

It only earns him a mitigation of the punishment due for the offence of murder to a sentence for manslaughter…It is thus, the dissimilarity in the consequences of the availability of these defences that make them mutually exclusive, that is, that make them inconsistent defences – defences that cannot avail an accused person at the same time ….

​Being a concurrent judgment and endorsed by my learned brother Augie, JSC, this appeal therefore fails and is hereby dismissed.

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Judgment

ABBA BELLO MOHAMMED, J.C.A. (Delivering the Leading Judgment): The Appellant was arraigned before the Federal High Court, Ibadan (the trial Court) on a five-count charge of conspiracy, obtaining by false pretence, forgery and uttering. After a full-blown trial, he was found guilty of the offences of conspiracy and obtaining by false pretence in counts 1, 2 and 3 while he was discharged of the offences of forgery and uttering in counts 4 and 5. The Appellant was sentenced to 13 years imprisonment. The judgment and the sentence are at pages 329 – 364 of the Record of Appeal.

Dissatisfied with his conviction and sentence, the Appellant has appealed to this Court vide Notice of Appeal filed on 16th July, 2021, which is at pages 365–374 of the Record of Appeal. The Record of Appeal was transmitted to this Court on the 10th of September, 2021. In furtherance of the appeal, the parties filed and exchanged their briefs of argument. The Appellant’s Brief of Argument filed on 29th September, 2021 was settled by Otunba M.

Olayinka Bolanle, while the Respondent’s Brief of Argument settled by Festus Ojo Esq, which was filed on 18th May, 2022 was deemed properly filed on the 30th of May, 2022 along with the Appellant’s Reply Brief filed on 26th May, 2022. From his 12 grounds of appeal, the Appellant distilled the following four issues for determination: 1.

Whether the learned trial Judge of the Court below properly exercised jurisdiction in delivering the judgment of the Court below on 23rd June, 2021 and convicting and sentencing the Appellant on the said date when by the Records, the final Address in the matter were adopted on 26th February, 2021 and when the re-adoption ordered and effected on 23rd June, 2021 was a sham? (Ground 3 of the Notice of Appeal). 2.

Whether the learned trial Judge was right in convicting the Appellant as charged in counts 1, 2 and 3 when evidence offered by the prosecution in proof of same are inherently either hearsay evidence or documentary evidence dumped on the Court by the prosecution? (Grounds 4, 6, 7 and 9 of the Notice of Appeal). 3.

Whether on the state of evidence adduced by the prosecution, the learned trial judge correctly agreed with the prosecution in finding that statutory onus of proof of commission of the offences listed as Counts 1, 2 and 3 was discharged by the prosecution? (Ground 1, 5, 8, 10 and 11 of the Notice of Appeal). 4.

Whether the learned trial Judge correctly took into account all relevant statutory and existing judicial considerations, in exercising his discretion in sentencing the Appellant, a first-time offender and father of infant children, to a thirteen years term of imprisonment? (Ground 2 of the Notice of Appeal). On its part, the Respondent formulated the following three issues for determination: (a). Whether the delay in delivery of judgment has occasioned any miscarriage of justice. (b).

Whether the learned Judge evaluated the evidence adduced in this case properly leading to the conviction of the Appellant on counts 1, 2 and 3 out of five counts charge. (c). Whether the sentence imposed on the Appellant by the trial Court is excessive. ​I have considered the issues distilled by the parties. The Appellant’s issues 2 and 3 essentially relate to the weight of evidence. It appears to me if those two issues are considered as one, the parties will be at ad idem on three issues for the determination of the appeal as distilled by the Respondent.

I am therefore of the view that this appeal can be effectively determined on the three issues formulated by the Respondent, albeit with slight modification, as follows: 1. Whether the delay in the delivery of judgment by the trial Court has occasioned miscarriage of justice as to render same invalid. 2. Whether having reference to the evidence adduced the trial Court was right in convicting the Appellant as charged in counts 1, 2 and 3 of the five counts charge. 3. Whether the sentence of thirteen years imprisonment imposed on the Appellant by the trial Court is excessive.

APPELLANT’S SUBMISSIONS ON THE ISSUES: On his issue 1, learned Counsel for the Appellant cited Section 294(1) of the 1999 Constitution which mandates that Courts established under the Constitution shall deliver judgment in writing not later than ninety (90) days after the conclusion of evidence and final addresses. He pointed out that the defence called his last witness, DW3, on 18th November, 2020, (pages 311–321 of the record of Appeal), after which the lower Court adjourned the matter to 21st January, 2021 for adoption of final written addresses.

But the final addresses were eventually adopted on 26th February, 2021 (pp. 323–324) and the case was adjourned to the 30th April, 2021 for judgment, but the Judiciary Staff Union of Nigeria (JUSUN) went on strike as a result of which the judgment could not be delivered. On 23rd June, 2021, the learned trial Judge called for a fresh re-adoption and proceeded to deliver the judgment immediately after the re-adoption was done. Counsel argued that the judgment was delivered three months and twenty-eight days after final address was adopted on 26th February, 2021.

Citing the case of ODI v OSAFILE (1985) 1 NWLR (Pt. 1) 17, per Obaseki, JSC, he argued that the judgment which was delivered after the expiration of the three months stipulated is unconstitutional. Learned Counsel also referred to the Supreme Court decision in the case of IFEZUE v MBADUGHA (1984) 1 SCNLR 427, as well as Section 294 (5) of the 1999 Constitution, and submitted that the Appellant had demonstrated miscarriage of justice in the grounds of appeal.

He referred the Court to ground 3 of the Notice of Appeal and submitted that the failure of the lower Court to comply with the provisions of Section 294 (1) of the 1999 Constitution by the lower Court occasioned a miscarriage of justice. Counsel further argued that apart from the fact that the trial Judge did not properly appreciate the basis for a re-adoption, it is glaring that a miscarriage of justice would be presumed to have occurred where a party is able to show that the trial Judge’s perception and/or appreciation of the case presented by the parties and/or witnesses is suspect.

He relied on AYINKE STORES LTD. v ADEBOGUN (2013) ALL FWLR (Pt. 682) 1797 at 1811; and ARIORI v ELEMO (1983) All NLR 1; (1983) 1 SCNLR 1, and urged the Court to resolve issue 1 in favour of the Appellant and hold that the judgment of the trial Court is invalidated by reason of non-compliance with Section 294 (1) of the 1999 Constitution.

Arguing issues 2 and 3 together, learned Counsel for the Appellant submitted that a holistic consideration of the whole evidence led by the prosecution will show that the trial Judge ought to have found that the prosecution did not discharge the evidential burden placed on it to prove the ingredients of the offences charged against the Appellant beyond reasonable doubt.

He submitted that failure of proof happens either where the prosecution failed to prove the essential ingredients of offence beyond reasonable doubt or where the evidence of the prosecution witnesses has been so discredited and rendered unreliable under cross-examination that it had created reasonable doubt in the case of the prosecution. He cited NJOKU v THE STATE (2013) 2 NWLR (Pt. 1339) 548. He added that the onus of proving the presence of both the actus reus and mens rea lies on the prosecution.

He referred to GARBA v THE STATE (2011) 14 NWLR (Pt. 1266) 98; and ABEKE v THE STATE (2007) 9 NWLR (Pt. 1040) 411. ​Learned Counsel submitted that the offences for which the Appellant was convicted and sentenced were: Conspiracy to obtain the sum of N10,500,000.00 by false pretence (Count 1); Obtaining N10,000,000 by false pretence (Count 2); and Obtaining N500,000 by false pretence (Count 3).

He contended that the ingredients of obtaining by false pretence in counts 2 and 3 have been espoused in a number of cases He cited KINGSLEY ADIJEH v COP, NASARAWA STATE (2018) LPELR – 44563 (CA), per Sankey, JCA; and ONWUDIWE v FRN (2006) All FWLR (Pt. 319) 774 at 812–813. He argued that the issue of identity was not resolved by the Court below. He pointed out that PW2 had testified that bank draft of N8,000,000.00 (Eight million Naira) was issued in the name of “Mr.

John Komolafe”, the second draft of N2,000,000.00 (Two million Naira) was issued in the name of “Komolafe John” and the other payment of N500,000 was allegedly the agency fee paid to one “Mr. Adisa”. He argued that there was no proof before the lower Court and not even the slightest attempt of proving that all these names refer to one and only one person. He urged this Court to find that this is a serious infraction that goes to the root of proving the alleged crimes in counts 1, 2 and 3.

He also submitted that the evidence of the complainant who claimed to have issued the bank drafts in question did not match up with the documentary evidence of photocopies of the purported drafts presented by the prosecution in Court. ​Counsel referred to the case of Dr. E.J. ESENOWO v Dr. I. UKPONG & ANOR. (1999) LPELR–1166, where the Court held that the name “Dr. J.E. Esenowo” is not the same person as Dr. E.J. Esenowo. He similarly cited the case of REV.

VICTOR MUKORO v FRN (2015) LPELR–24439(CA), where the Court of Appeal held that the responsibility of the Prosecution to establish the element of fraudulent intention of the Defendant and that this mental element must be proved beyond reasonable doubt. Learned Counsel pointed out that of the 5 witnesses called by the Prosecution, 2 were police officers who were part of the investigating team. He submitted that the bulk of the evidence of PW1 and PW3 is hearsay evidence. He added that PW1 who tendered Exhibits A – L was not the maker of those documents.

He added that except for Exhibits A and L whose makers were called as witnesses Exhibits B and all other Exhibits were tendered through persons who did not make them. He cited DAVID OGORO & ORS v 7UP BOTTLING COMPANY PLC (2015) LPELR–24424(CA) per Barka, JCA;FLASH FIXED ODDS LTD v AKATUGBA (2001) 9 NWLR (Pt.717) 46 at 63, per Niki Tobi, JSC, where it was held that although there could be situations where a document will be tendered by a non-maker, the Court should not attach any probative value to it.

Learned Counsel also argued that the nature and quality of investigation done by the EFCC in this case is below average and urged this Court to make a finding of fact to this effect and hold that the learned trial Judge ought to have so found on the basis of the quality of available evidence. He added that it is quite glaring that PW1 (Yabge Sylvanus), the IPO, through whom the prosecution tendered Exhibits A–L, came to a conclusion of alleged forgery merely on the basis of the letter written by a person who he had never seen nor interviewed.

As for the evidence of PW3 (Ebika Alokpa), the second investigating police officer, his evidence clearly shows that he was in Court to give evidence on the content of the letter received by this investigating team from Access Bank on the one hand and Skye Bank on the other hand. (Pp. 288–289). He added that PW3 was merely led to identify the letters written and the replies obtained from the Access Bank, Guaranty Trust Bank and Skye Bank, as well as a copy of the petition that prompted their investigation.

The prosecution did not attempt to lead PW3 into the dates the alleged funds were lodged and which accounts were credited with the value of the drafts claimed to have been issued by the Petitioner/Complainant, Mr. Adebisi Adesola. He argued that the bank statements and letters were merely dumped on the lower Court for the Court to do a private examination of the documents to arrive at the date the funds were lodged and into which of the bank statements the funds were lodged. He submitted that it is not within the jurisdiction of the Court to help in doing the Counsel’s work.

He relied on SPASCO VEHICLE & PLAN HIRER CO. LTD. v ALRAINE (1995) 9 SCNJ 288 at 304; IVIENAGBOR v BAZUAYE (1999) 6 SCNJ 236; and UGOCHUKWU v CO-OPERATIVE BANK (1996) 7 SCNJ 22. He added that it is the duty of the Counsel who wants the Court to rely on a particular document tendered as an Exhibit to lead a witness on the document to activate the Court into proper action on the document.

He cited ACCESS BANK PLC v MRS CECILIA AJAYI (2018) LPELR-43813(CA), and submitted that the prosecution had failed to demonstrate the relevance of the statement of account tendered and as well as link the Appellant to the offence of obtaining N1,000,000.00 and N500,000.00 under false pretence. The Appellant further submitted that in respect to the offence of conspiracy in count 1, there was no prima facie case made out by the Prosecution, as the lack of evidence in respect of the other counts also affects this count.

He explained that the dumping of all the documentary evidence on the Court by the Prosecution without proper demonstration had naturally affected the proof of the ingredients in respect of this count. Learned Counsel pointed out that conspiracy is the meeting of two or more minds to carry out an unlawful act or a lawful act by an unlawful means. He cited THANNI SHODIYA v THE STATE (1992) 3 NWLR (Pt. 230) 457. He submitted that the mere fact that the Appellant happened to work in the same office does not ipso facto give rise to the offence of conspiracy.

He added that the law is that where the Prosecution fails to prove the particulars of an offence stated in a charge, the Defendant should not be convicted of the offence but should be discharged and acquitted. ​Learned Counsel for the Appellant submitted that the Appellant had raised the issue of mistaken identity right from the investigation stage and had requested to be confronted with the Petitioner on one hand and the Referee who had allegedly referred him to the bank, but rather than acceding to this request, he was slapped and asked whether he wanted to teach the investigators their job.

He further submitted that the Referee who should have been called to give credible evidence linking him to the offences was not called as a witness. He contended that issue of identification becomes necessary where an offender was not arrested at the scene of a crime. He argued that an identification parade ought to be conducted to ascertain the identity of the offender. He cited the cases of ADEYEMI v THE STATE (2011) 5 NWLR (Pt. 1239) 1; and IKEMSON v THE STATE (1989) 3 NWLR (Pt. 110) 455, which stated the instances when identification parade will be necessary.

He argued that the only place the alleged victim (Mr. Adebisi Adesola) identified the Defendant was in the course of his evidence-in-chief before the lower Court and that was when he pointed at the Defendant in the dock.

Learned Counsel pointed out that in ANI v THE STATE (2009) ALL FWLR (Pt. 482) 1084, the Supreme Court had admonished that identification of a Defendant is a serious exercise in the administration of criminal justice which creates the link between the Defendant and the offence alleged against him, and that the law Courts should not be involved in speculations that a complainant might have or must have identified the person who committed the offence where there is no such evidence before the trial Court.

He added that in OROK v THE STATE (2009) ALL FWLR (Pt. 532) 1732 CA, the Court had held that where a Defendant was not arrested at a crime scene, the evidence of identification would require caution by the trial Judge before acting on. Further citing AYO v THE STATE (2015) 16 NWLR (Pt. 1486) 531, he urged this Court to hold that it is not the business of the lower Court to provide missing links which the prosecution ought to have supplied.

Learned Counsel pointed out that this Court had held in ELDER OKON AARON UDORO & ORS v THE GOVERNOR OF AKWA IBOM STATE & ORS (2008) LPELR–4094 (CA), that whenever inadmissible evidence is tendered, it is the duty of the opposite party to object to its admissibility, and even if not objected to, the Court must reject such evidence in criminal cases.

He submitted that if this Court expunges the photographs in Exhibits G2 and G3 (which are the bank forms) which were objected to at the lower Court, there will be nothing on the record to support the case of the Prosecution in their bid to link the Appellant to the commission of the offence. Relying on ALAKE v THE STATE (1992) 9 NWLR (Pt. 265) 260 SC, he urged the Court to hold that the evidence of identity was not established beyond reasonable doubt.

Further relying on KALU v THE STATE (1988) 4 NWLR (Pt. 90) 503; and HARUNA v THE STATE (1990) 10 SCNJ 5, he submitted that the failure to prove the ingredient of the offence implies that Prosecution has failed to prove the guilt of the Appellant beyond reasonable doubt.

On his issue 4, which was distilled from Ground 2 of the Notice of Appeal, the learned Counsel for the Appellant submitted that in imposing a sentence of thirteen years imprisonment on the Appellant, the learned trial Judge took into consideration deterrence alone and did not consider the fact that the Appellant is a first-time offender and a father of 2 infant children. He further argued that the learned trial Judge did not exhaust all the considerations contained in the sentencing statutes or in the principles and practice of sentencing before exercising his judicial discretion.

He referred to page 327 of the Record. Relying on KENNETH CLARK v THE STATE (1986) 4 NWLR (Pt. 35) 381, he submitted that an appellate Court can appropriately intervene by exercising jurisdiction to reduce sentences imposed on the Appellant as it is manifestly excessive having regard to the circumstances of the case and the sentencing principles which was not taken into account by the trial Judge. He cited Section 401(2)(a) – (g) of the ADMINISTRATION OF CRIMINAL JUSTICE ACT, 2015, which prescribes some of the factors that should be considered by the Court in imposing custodial sentence.

He contended that the use of the word “and” after items in Paragraph (f) before (g) is to show that all the considerations in (a) – (g) are to be conjunctively considered by a trial Judge in exercising discretion to impose sentence. ​Learned Counsel submitted that one of the fundamental principles of sentencing which Courts often consider is “reformation”. He argued that the Appellant was denied the opportunity of reformation by being slammed with a sentence of thirteen years imprisonment.

He urged the Court to intervene and take into consideration that the Appellant has a young wife, 2 infant children and aged parents, and that it will also be in the best interest of the larger society. He cited CHRISTOPHER FAGBEMI v THE STATE (1978) 6 FC 4; SUNDAY IMOISILI v A-G BENDEL (1986) 2 C.A. (Pt. 1) 370; ENGR. KWALE v THE STATE (2003) FWLR (Pt. 152) 1594 at 1531, 1534, to the effect that Courts should be slower on imposing terms of imprisonment even where same is provided by statute, particularly in the case of a first offender.

RESPONDENT’S SUBMISSIONS ON THE ISSUES: Arguing issue 1, learned Counsel for the Respondent conceded that the failure by the trial Court to deliver judgment within three months started his argument by stating that he agrees the general statement of law after adoption of final addresses is a contravention of Section 294 (1) of the 1999 Constitution (as amended). However, he argued that the failure does not ipso facto lead to the judgment being set aside except where a miscarriage of justice has been suffered. Citing and relying on DIBIAMAKA v OSAKWE (1989) 3 NWLR (Pt. 107) 105 at 114, para.

G, he contended that it is not the delay between the conclusion of a trial and the delivery of judgment simpliciter that occasions miscarriage of justice, the emphasis being not on the length of the time, but on the effect the delay has produced on the mind of the trial Judge. He argued that the Appellant is duty bound to demonstrate to the satisfaction of this Court that a miscarriage of justice was occasioned and he has failed to discharge that duty. Learned Counsel cited the cases of EMEKA EZE v THE STATE (2018) LPELR–44887; REYNOLDS CONSTRUCTION CO.

LTD. v ODIGIE (2018) LPELR-44776; and ATUNGWU v OCHEKWU (2014) 229 LRCN 192 at 197, where Section 294 of the 1999 Constitution, especially Subsection (5) was interpreted. He submitted that a party complaining of miscarriage of justice in a case must of necessity provide relevant facts and circumstances to establish same.

He added that the mere assertion of miscarriage of justice does not necessarily prove the existence of same. ​Learned Counsel pointed out that the Appellant had contended in paragraph 3.05 of the Appellant’s Brief that judgment of the lower Court was delivered three months and twenty-eight days after the adoption of the final address done on 26th February 2021 and that the judgment was not delivered within time because of the Judicial Staff Union of Nigeria (JUSUN) nationwide strike, as a result of which the trial Judge called for a fresh re-adoption and proceeded to deliver judgment immediately thereafter.

Counsel submitted that even based on the argument of the Appellant, this Court ought to take judicial notice of the JUSUN strike as an intervening factor which frustrated the Court from delivering the judgment within the 3 months stipulated. He argued that the Appellant has failed to establish that miscarriage of justice had occurred by reason of the 28 days delay.

He urged the Court to so hold and resolve this issue in favour of the Respondent. ​On issue 2, learned Counsel for the Respondent referred to the extra-judicial statement of the Appellant in Exhibit 1 at page 29, lines 12-30 of the Record of Appeal, wherein he stated how he met other accomplices/fraudsters who are at large.

He pointed out that the Appellant had stated that he got to know Adisa Adeleye John through Alhaji Kola who is a business agent and that they told him there was a land business at Onireke GRA and asked him to act as the son of the owner of the land, who is Komolafe Kehinde Olatunbosun. That as soon as he (the Appellant) agreed, he proceeded to open Skye Bank Account in the name of Komolafe Kehinde Olatunbosun, after which he was taken to Adisa’s office where he met the buyer Mr. Adebisi. That Mr. Adebisi issued two bank drafts (GTB – N2,000,000 and intercontinental N6,000,000).

That the Appellant was told to state that his father was bedridden in the hospital and that he was acting on his behalf as his son. That the Appellant said they also showed him a purported Certificate of Occupancy which they claimed was the title to the land and this convinced Mr. Adebisi to pay.

Learned Counsel further pointed out that the Appellant had narrated that the N6,000,000 and N2,000,000 were paid into his (the Appellant’s) Bank account which he opened in the name of Kehinde Komolafe, while another N2,000,000 was paid into Adisa Adeleye’s account making a total of N10,000.000, and N500,000 was paid in cash. Learned Counsel submitted that the offence of conspiracy to obtain the sum of N10,500,000 was established as in count 1, and obtaining N10,000,000 by false pretense in count 2, as well obtaining N500,000 by false pretense in count 3.

He added that although, the Appellant was discharged and acquitted by the trial Court on count 4 and count 5, (forgery and uttering of document), PW1 and PW3 who were both investigating police officers with the Respondent carried out the investigation activities at pages 192–226 and 285-289 of the Record of Appeal. Counsel contended that it has been held that the duty of the Court is to evaluate evidence and appraise the facts and that it is not the business of an appellate Court to substitute its own views for the views of the trial Court.

He cited and relied on the cases of EBOADE v ATOMESIN (1997) 8 NWLR (Pt. 506) 490 at 502; AJUMOBI OGUNDULU & ORS v CHIEF E. O. PHILLIPS & ORS (1973) 1 NMLR 267 at 272; NZEKWU v NZEKWU (1989) 2 NWLR (Pt. 104) 373. ​It was also the submission of learned Counsel for the Respondent that the trial Court could not have arrived at any other conclusion than that the prosecution had proved its case against the Appellant beyond reasonable doubt based on the evidence led by the Prosecution and even by the Appellant.

He pointed out that in Exhibit 1 at page 29 of the Record, the Appellant admitted to the roles he played in the fraud. Counsel contended that facts admitted need no further proof and cited AGBAKOBA v SSS (1994) 8 NWLR (Pt. 209) 255 at 298. He added that notwithstanding the admission of the Appellant, the evidence of PW1 and PW3 had confirmed Exhibit 1. He urged the Court to discountenance the arguments of the Appellant on issues 2 and 3 and hold that the Respondent had proved its case against the Appellant.

Arguing his third and final issue, learned Counsel for the Respondent submitted that sentencing is at the discretion of the trial Judge. He added that the Court of Appeal had held in EGBUO v CHUKWU (1998) 10 NWLR (Pt. 570) 499 at 512, that a proper exercise of discretion should be done according to law and not humour, and that it is not to be arbitrary, vague or fanciful but legal and regular.

He argued that an appellate Court is not at liberty to substitute its own discretion for the discretion already exercised by the trial Judge, unless it reaches the conclusion that the discretion exercised was wrongful and no sufficient weight was given to considerations However, the Court in CHARLES OSENTON v JOHNSON (1994) A.C. 130 at 138, stated that if the Appellate Court reaches a clear conclusion that the exercise of discretion was wrongful in that no sufficient weight has been given to relevant considerations.

Learned Counsel referred the Court to Section 1(3) of the Advanced Fee Fraud and other fraud Related Offences Act, 2006 wherein punishment of not more than 20 years and not less than 7 years without option of fine was provided for offences committed under Subsections (1) and (2) of that Section. He posited that the trial Judge had the discretion to sentence the Appellant to 20 years but instead sentenced him to 13 years and also backdated the sentencing to 9th September, 2014 instead of the 23rd day of June, 2021 when he was convicted.

Counsel added that Section 11(1) of the Advanced Fee Fraud has also made provision for restitution to be ordered by a trial Judge to the victim of the Appellant’s infraction, and the trial Judge tempered justice with mercy by asking the Appellant to pay the sum of N5,000,000 instead of N8,000,000 as restitution to the victim. Counsel urged the Court to discountenance the arguments of the Appellant and dismiss this appeal.

APPELLANT’S REPLY: In Reply, the learned Counsel for the Appellant urged the Court to discountenance the issues raised by the Respondent since the Respondent has not cross-appealed. Relying on the cases of GOVERNMENT OF AKWA IBOM STATE v POLARIS BANK LTD (2019) 8 NWLR (Pt. 1674) 347; OSAZUWA V ISIBOR (2004) 3 NWLR (Pt. 859) 16; KUUSU v UDOM (1990) 1 NWLR (Pt. 127) 421, he submitted that both the issues and the arguments thereupon are irregular and incompetent as the issues formulated were not attached to the grounds in the Notice of Appeal.

He contended that it is trite that where a Respondent has not cross-appealed or filed a Respondent’s Notice he cannot raise issues outside those formulated or framed by the Appellant. He relied on NZEKWU v NZEKWU (1989) 1 NWLR (Pt. 99) 514; ALADETOYINBO v ADEWUNMI (1990) 6 NWLR (Pt. 154) 98.

In the event that the Court will consider the Respondent’s issues, learned Counsel for the Appellant submitted in reply to the Respondent’s issue 2, that the Respondent’s arguments on issue 2 is not based on evidence that was demonstrated at the trial. He argued that the Respondent dumped evidence on the trial Court without proper demonstration, by virtue of the holding of the Court in SPASCO VEHICLE & PLANT HIRER CO.

LTD v ALRAINE (1995) 9 SCNJ 288 at 304; IVIENAGBOR v BAZUAYE (1999) 6 SCNJ 236; and UGOCHUKWU v CO-OPERATIVE BANK (1996) 7 SCNJ 2; and ACCESS BANK PLC v MRS CECILIA AJAYI (2018) LPELR–43813(CA). He submitted that the Respondent failed to lead his witnesses to demonstrate the evidence at the trial Court and that the learned Counsel for the Respondent was only trying to give evidence now in the guise of writing his brief. With respect to issue 3 formulated and argued by the Respondent, Counsel argued that the Respondent failed to appreciate the power of the Court of Appeal in criminal appeals.

He referred to the case of HUSSAINI GARBA v THE STATE (2021) LPELR–55468(CA), where this Court held that by Section 19(2) of the Court of Appeal Act, the Court of Appeal has the power to allow an appeal against conviction, quash conviction, direct a judgment and verdict of acquittal to be entered or order that the Appellant be retried by a Court of competent jurisdiction.

He added that where a Respondent desires that the Court of Appeal should come to the same decision as the Court below on a particular point other than the reason advanced by the Court below, he should file a cross-appeal or a Respondent’s notice. He pointed out that the Respondent had done none of these. He posited that the Respondent is not allowed to bring an argument outside of the issues raised by the Appellant. RESOLUTION OF ISSUE 1: Whether the delay in the delivery of judgment by the trial Court has occasioned miscarriage of justice as to render same invalid.

Section 294(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) mandates every Court established under the Constitution to deliver its decision in writing not later than ninety days after conclusion of evidence and final addresses, and to furnish the parties with duly authenticated copies of the decision within seven days of its delivery.

When read alone, this subsection of Section 294 of the Constitution would appear to have imposed a sacrosanct timeline of ninety days within which every Court must deliver its decision after final addresses, such that any decision not delivered within that timeline of ninety days becomes unconstitutional and therefore null and void.

However, this is not exactly so, because, Subsection (5) of the same Section 294 goes further to provide as follows: (5) The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of Subsection (1) of this section unless the Court exercising jurisdiction by way of appeal or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.

By the provisions of Subsections (1) and (5) of Section 294 of the Constitution therefore, a decision of Court delivered after the ninety days stipulated in subsection (1) will not ordinarily be a nullity until declared so by an appellate Court upon being satisfied by the party complaining that he has suffered miscarriage of justice, as provided in Subsection (5).

In other words, the “shall” used in Section 294(1) is not regarded as mandatory but directory, recognizing that there may be imperative reasons that could prevent judgments from being delivered within the ninety days stipulated: ATUNGWU & ANOR v OCHEKWU (2013) LPELR-20935(SC), per Alagoa, JSC at pages 47–48, paras. C–C. Thus, where there is a delay in the delivery of judgment, the onus is on the party complaining to satisfy the appellate Court or Court of review that he has as a result of the delay suffered miscarriage of justice.

See: AKOMA & ANOR v OSENWOKWU & ORS (2014) LPELR-22885(SC), per Onnoghen, JSC (as he then was) at page 41, paras. B–D; and OWOYEMI v ADEKOYA & ORS (2003) LPELR-2858(SC), per Iguh, JSC at page 33 paras. A–E. As borne by pages 323–324 of the Record of Appeal, the final addresses of the parties were adopted on the 26th of February, 2021 after which the trial Court adjourned the matter to 30th April, 2021 for judgment. But the judgment of the trial Court was only delivered on the 23rd of June, 2021 immediately after the learned trial Judge got the parties to re-adopt their final addresses.

Thus, there is no controversy over the fact that from the 26th of February, 2021 when the final addresses of the parties were adopted, the judgment of the trial Court was delivered after the ninety days stipulated in Section 294(1) of the 1999 Constitution. A trial Court has the power to invite the parties to re-adopt their final written addresses only before the expiry of the ninety days within which it must deliver judgment, especially where new issues have arisen to which it requires the parties’ submissions before delivery of judgment.

But the practice where after the expiry of ninety days a trial Court invites parties to readopt final addresses before delivering its judgment, as was done by the learned trial Judge at page 333 of the Record of Appeal, has no place either in the Constitution, or in our statutory laws or rules of procedure. In fact, such a practice neither obviates the fact that the judgment is delivered after the ninety days stipulated, nor adds any value to the final addresses being readopted by the parties.

Thus, after the expiry of the ninety days within it must deliver its judgment, a trial Court can only proceed to deliver its judgment and then comply with the reporting requirement stipulated in subsection (6) of Section 294, by reporting same to the Chairman, National Judicial Council. It is then left to an appellate Court before which a complaint against the late delivery of the judgment is lodged to determine whether a miscarriage of justice had been occasioned as a result of the delay in the delivery of the judgment.

In the instant appeal, even the Appellant has admitted in paragraph 3.05 of his Brief of Argument that the judgment delivered on 23rd June, 2021 was not delivered by the trial Court within the ninety days from 26th of February, 2021 when the final addresses were adopted, because of the Judiciary Staff Union of Nigeria nationwide strike. This fact was also reflected by the learned trial Judge in his judgment at page 333 of the Record.

Hence, there was a frustrating incident that made it impossible for the trial Court to deliver its judgment within the constitutionally stipulated time frame. ​As for whether the Appellant has been able to establish miscarriage of justice as a result of the delay, it is pertinent to state that the appellate Courts have considered the import of the constitutional time frame for delivery of judgments after the end of trial.

In so doing, the Courts have highlighted what a party complaining of delay in delivery of judgment beyond the stipulated period need needs to show to establish miscarriage of justice. In ARIORI v ELEMO (1983) LPELR-552(SC), the Supreme Court, per Obaseki, JSC held at pages 45–46, paras. E–C, that: “When evidence and addresses have been heard, the duty of the Judge to consider the evidence and addresses and deliver his judgment falls to be performed.

If possible, the duty ought to be performed immediately upon the conclusion of counsel’s addresses if there were counsel in the case and if no counsel appeared upon the end of the testimony of the parties and their witnesses. The reasonable time for the consideration and delivery by the Court of the judgment depends only on the time an active, healthy and mentally alert Judge takes to read and consider the evidence and write his judgment with full and complete consciousness of all the impressions of witnesses at the trial.

A period of time which dims or loses the memory of impressions of the witnesses is certainly too long and is unreasonable.

Where a period of time dims or loses the memory of impressions of witnesses, it occasions a miscarriage of justice, contravenes the fair trial provision of our Constitution and vitiates the whole proceedings.” Also, in DIBIAMAKA v OSAKWE (1989) LPELR-940(SC), the Apex Court, per Oputa, JSC, held as follows: “Did the inordinate delay of 9 months between the close of the trial and the delivery of judgment render the judgment voidable, and could the Court, in the interest of Justice, avoid the judgment of the trial Court and that of the Court of Appeal which confirmed it?” Another question arises – And replace it with what?

Justice in our Courts is justice according to law. And the law is that if inordinate delay between the end of the trial and the writing of the judgment apparently and obviously affected the trial Judge’s perception, appreciation and evaluation of the evidence so that it can be easily seen that he has lost the impressions made on him by the witnesses, then in such a case, there might be some fear of a possible miscarriage of justice and there, but only there, will an appellate Court intervene.

The emphasis is not on the length of time simpliciter but on the effect it produced in the mind of the trial Judge.” See also: AYINKE STORES LTD v ADEBOGUN (2008) LPELR-3831(CA), per Augie, JCA (as he then was) at pages 20–22, paras. E–A; ATUNGWU vs. OCHEKWU (supra); ACB LTD & ORS v AJUGWO (2011) LPELR-3637(CA), per Oseji, JCA (as he then was) at pages 34–36, paras. C–B; MOLEGBEMI & ORS v AJAYI & ORS (2011) LPELR-4501(CA), per Tsammani, JCA at pages 31–33, paras. A–E; and OLUSANYA v UBA PLC (2017) LPELR-42348(CA), per Ogakwu, JCA at pages 10–13, paras. C–D.

In the present appeal, the Appellant had referred this Court to page 344 lines 8–17 of the Record of Appeal in an attempt to establish miscarriage of justice, and argued that the learned trial Judge had failed to properly appreciate the issues made by the defence as a preliminary point in the Defendant’s Reply on Point of Law at pages 171–177 of the Record. But I have examined the said pages 171–177, as well as page 344 of the Record of Appeal.

I fail to see how the learned trial Judge’s statement on page 344 portrays a lack of appreciation of the preliminary issue raised in the Defendant’s reply on point of law. Indeed, the statement of the learned trial Judge merely reflects a summation of the preliminary point so raised in paragraphs 1.03–1.06 of the Defendant’s Reply. I have not seen how that summation has occasioned any miscarriage of justice to the Appellant. I therefore, have no hesitation in discountenancing the Appellant’s argument in that regard.

In consequence, I hereby resolve this issue against the Appellant and hold that the Appellant has failed to show how the delay in the delivery of judgment by the trial Court has occasioned any miscarriage of justice to him as to render the judgment invalid. RESOLUTION OF ISSUE 2: Whether having reference to the evidence adduced the trial Court was right in convicting the Appellant as charged in counts 1, 2 and 3 of the five counts charge.

It is trite that where an Appellant complains against the evaluation of evidence by the trial Court, he has a duty to show the part of the evidence not evaluated or was improperly evaluated by the trial Court and how that failure affected his case. See: OYEDELE v STATE (2019) LPELR-47576(SC), per Kekere-Ekun, JSC at page 26, paras. A–F; KIWO v STATE (2020) LPELR-53900(SC), per Muhammad, JSC at page 30, paras. D-F; and ANACHE & ANOR v BAKO & ORS (2019) LPELR-55316(CA), per Nimpar, JCA at pages 22–25, paras. E–A.

At paragraph 4.03 of the Appellant’s Brief of Argument, it was merely contended that the essential ingredients of the offences for which the Appellant was convicted in counts 1, 2 and 3 were either not proved beyond reasonable doubt or the evidence of the Prosecution witnesses was so discredited and rendered unreliable under cross-examination. The learned Counsel for the Appellant then proceeded to argue about mens rea and actus reus.

He then argued that the learned trial Judge ought not to have found the ingredients of the offences established because the person alleged to have been impersonated, Komolafe Kehinde Olatunbosun was not called by the Prosecution. Counsel for the Appellant argued that it is only Komolafe Kehinde Olatunbosun that can authoritatively tell the Court that he exists and that the Defendant was an impostor.

Counsel also pointed to the Bank Forms in Exhibits G, G2 and G3 and argued that the Defendant was not the one in the photographs in those Exhibits as the person in those exhibits was bearded, and that the IPO was not there when the bank account opening processes were done. He tried to argue over the identification of the Defendant. It appears however, that the learned Counsel for the Appellant has obscured the testimony of PW2 which the trial Court, in finding the Appellant guilty of the offence of conspiracy in count 1, had thoroughly evaluated at pages 347–348 of the Record.

Therein, the learned trial Judge stated as follows: “The evidence of PW2 is very crucial to this offence charged. In his oral testimony, he prefaced that he knows the Defendant, Yusuf Ayodeji Lasisi, as Mr. Mike Komolafe, whom he got to meet through Mr. Adisa Adeleye John (Adisa). This Adisa was (sic) contacted PW2 and introduced himself as the assigned agent for the piece of land he had interest. This Adisa initiated a telephone call, via which PW2 spoke with the supposed owner of the land, Mr. Komolafe, whom Adisa said was hospitalized at London.

The PW2 testified that this conversation propelled him to negotiate for the land and settle for the sum of N8,000,000.00 with Adisa. He told Court that he went along with Dan Umoh and asked Adisa to meet them at Intercontinantal Bank (now Access Bank), where he raised two bank drafts for N6,000,000.00 and N2,000,000.00 in the name of John Komolafe. He testified, the trio proceeded to Adisa’s office at Suite 8, Sandex, Iwo road, where the drafts were exchanged with the Original Certificate of Occupancy, Original copy of Power of Attorney claimed to be issued by Mr.

John Komolafe, which authorized the Adisa to sell the land. He said he paid N500,000.00 to Adisa as agent fees. He testified that as he was about to leave Adisa’s office, the Defendant came into the office and introduced himself to him as Mr. Mike Komolafe, the son of Mr. John Komolafe. And the Defendant insisted that he was not satisfied with agreed sum, because the negotiated amount was inadequate and that PW2 wants to take advantage of his father’s illness, thus the Defendant asked for an additional N2,000,000.00.

The PW2 testified that he went back to his bank (Guaranty Trust Bank) to raise another draft in the name of Mr. John Komolafe for the sum of N2,000,000.00. The PW2 testified that, that was how he met the Defendant for the first time. However, he told Court that when he proceeded to maintain the land, one Admiral Komolafe and met informed his gardener that he is the owner of the said land.

He told the Court that his attempt to meet Adisa over the issue proved abortive.” After reviewing PW2’s testimony in chief, the learned trial Judge then proceeded to observe that: “I do find the learned Defence Counsel completely failed to put any questions to PW2 to devalue this salient evidence in the course of cross-examination, but rather learned Defence counsel chose to put questions as to PW2’s level of intelligence and the negligence on his part not to have conducted a proper search before making payments for the land.

The learned trial Judge then concluded at page 350 when he held that: “The evidence of great import at this stage, is the meeting of the minds of Adisa and the Defendant to perpetuate a criminal act to defraud by obtaining by false pretences from PW2, by their words and deeds. I do believe the prosecution evidence because it was left potent by the Defence, in favour of the Prosecution… I hereby find the Prosecution has proved the Count 1 offence against the Defendant before (sic) reasonable doubt.

I find the Defendant guilty of the Count 1 offence as charged.” From the foregoing, it is clearly evident that the trial Court’s finding of the Appellant guilty of conspiracy in count 1 was supported by duly evaluated evidence adduced before that Court.

As for the argument of the Appellant that the evidence of the Prosecution witnesses in proof of the offence of obtaining by false pretences in counts 2 and 3 of the charge was hearsay evidence, the printed record of appeal shows that the Appellant had raised the same argument at trial and the learned trial Judge had in his judgment fully addressed and resolved that argument against the Appellant when he held at pages 351 – 352 as follows: “The Count 2 offence charged against the Defendant borders on with intent to defraud, the Defendant obtained the sum of N10,000,000 by false pretences from PW2.

I will save time and adopt the narrative of PW2 testimony as of importance to the Prosecution’s case and damaging to the defence. The learned Defence counsel attacked the evidence of PW1, PW3, PW4 and PW5 as hearsay evidence which should be rendered inadmissible. Firstly, the PW1 and PW3 are officers of the EFCC who investigated this case. The PW1 testified as to how a petition was received on 26th day of July 2013 from PW2 at the EFCC.

He said his investigation stretched to Skye Bank where he discovered the beneficiary of the drafts raised by PW2 had the account name Komolafe Kehinde Olatunbosun. And upon receipt of the account opening package of the said beneficiary, the referee in the person of Adenugba Abayomi was traced and he discovered the said Komolafe K. Olatunbosun was not the actual owner of the account but the Defendant, whose photograph and other documents like driver’s licence was found attached to the account opening package. He said the Defendant was apprehended through the corporation (sic) of the referee.

Exhibits G1–G7, that is “re-investigation activities”, Managers Cheque No. 00010281 dated November 29th, 2013 along with all its attachments, C9A – C9F and the certificate of identification were tendered through this witness. The Defendant made two statements dated 5th and 6th day of June 2014. The 2nd statement recorded 6th day of June, 2014 was admitted after a conduct of trial within trial and same marked Exhibit I.

The PW1 testified that his investigation conducted at the Ministry of Lands, Ibadan revealed that the Certificate of Occupancy presented by the Defendant and accomplices was a fake. The response from Ministry of Lands, Ibadan is Exhibit L. He said his investigation revealed the real owner of the land, one Rear Admiral Komolafe. Learned Counsel for Defence’s contention to the evidence of PW1 stems from the admission elicited from PW4, that he never met the PW4 in person, but that he made a statement through the letterhead of the Ministry of Lands, being Exhibit L.

He categorized as hearsay evidence. The PW3 fully corroborated the PW1 testimony. The Petition (Exhibit M) was tendered through this witness. He also admitted he did not visit the Ministry of Lands personally. I do find after a careful evaluation of the evidence of PW1 and PW3, that all they laid before Court was all they did and garnered in the course of their investigation.

Same cannot be termed hearsay evidence.” It is pertinent to observe that PW1 and PW3 whose evidence the Appellant is referring as hearsay, are officers of the Economic and Financial Crimes Commission (EFCC) who investigated the case against the Appellant and they gave evidence of all they obtained in the course of their investigations. It is settled law that evidence given by investigating police officers (IPOs) as to the conduct of their investigation is not hearsay evidence. The appellate Courts have severally restated this legal position.

In KAMILA v STATE (2018) LPELR-43603(SC), the Supreme Court, per Sanusi, JSC held at pages 22–23, paras. D–A, thus: “Again, on the quality of the testimony of PW3 who is the investigation police officer which the appellant’s learned counsel called for its discountenance because according to him it is hearsay evidence. Here, I do not share the appellant’s counsel’s view that the evidence of an IPO amounts to hearsay evidence because as an IPO he narrates to the Court the outcome of his investigation or enquiries or what he recovered or discovered in the course of his duty.

He must have discovered or recovered some pieces of evidence vital to the commission of the crime which trial Courts normally consider in arriving at a just decision one way or the other. The lower Court was therefore right in refusing to discountenance such evidence adduced or given by PW3. Also, in OLAOYE v THE STATE (2018) LPELR-43601(SC), the Apex Court, per Peter-Odili, JSC held at pages 42–43, paras. D–A, as follows: “It has to be said that it is erroneous for the appellant to posit that the evidence of PW3 should be discountenanced being hearsay evidence.

That submission is a misconception since PW3 is the investigating Police Officer who has to narrate to the Court what transpired in the course of his investigation. In this process of stating what he found out in carrying out his inquiries, would be pieces of evidence which with another witness would be considered hearsay but from him since the Court has to know the synopsis of his investigative journey, it is direct evidence.” See also on this: OBOT v STATE (2019) LPELR-48172(CA), per Shuaibu, JCA at page 15, paras.

C–F; and OBOT v STATE (2014) LPELR-23130(CA), per Ndukwe-Anyanwu, JCA, at page 36, paras. B-F. Therefore, contrary to the argument of the Appellant, the evidence of PW1 and PW3, the investigating officers of the EFCC, as to their investigation of the case against the Appellant is not hearsay evidence and the trial Court was right to have relied on same.

It is also pertinent to state that in convicting the Appellant for the offences in counts 1, 2 and 3, the trial Court had in addition to the oral testimonies of witnesses, also relied on the documentary evidence tendered by the Respondent as Exhibits A–M, including the Appellant’s extra-judicial statement which was admitted as “Exhibit I” after a trial-within-trial.

These were thoroughly evaluated by the learned trial Judge especially from pages 351–359 of the Record, debunking the Appellant’s argument that the said documentary exhibits are documentary hearsay evidence or that they were dumped upon the Court. The learned trial Judge had found that the said documentary exhibits were duly linked by the oral evidence of the prosecution witnesses.

In particular, he had found at page 354 that Exhibit L, the letter from Ministry of Lands, Ibadan Oyo State which revealed that the Certificate of Occupancy presented by the Appellant and his accomplices was a fake, tallies with the testimony of PW1 and PW3, while Exhibits G1–G7, the Bank Account opening forms, to which was affixed the Appellant’s passport photograph, tally with the evidence of PW5 (see page 354 of the Record).

It is also noteworthy that the trial Court evaluated Exhibit I, the Appellant’s extra-judicial statement, and even quoted the relevant part at page 357 of the Record before holding at page 358 that “No doubt this is a confessional statement to the offence contained in Count 2.” In respect of count 3, the learned trial Judge had similarly referred to the evidence of PW2 that he gave Adisa the sum of N500,000 before the Appellant came into Adisa’s Office and posed as the son of Mr. John Komolafe and demanded an increase of the purchase price of the land.

As rightly observed by the learned trial Judge at page 360 of the Record of Appeal, the law is that once a criminal act committed by two or more persons acting in concert in furtherance of a common intention is established, each and every one of them is liable for the consequence of the criminal act and it does not matter who did what among them. In In D.S.P.G NWANKWOALA & ORS v THE STATE (2006) LPELR-2112(SC), the Supreme Court, per Tabai, JSC, held at pages 19–20, paras.

D–A, that: “Where more than one person is accused of joint commission of a crime, it is enough to prove that they all participated in the crime. What each did in furtherance of the commission of the crime is immaterial.

The mere fact of the common intention manifesting in the execution of the common object is enough to render each of the accused persons in the group guilty of the offence. ​See also: PATRICK IKEMSON & 7 ORS v THE STATE (1989) 3 NWLR (Pt. 110) 455 ADEKUNLE v STATE (1989) 5 NWLR (Pt. 123) 505; OGEDENGBE v THE STATE (2014) LPELR-23065(SC); OBIDIKE v STATE (2014) LPELR-22590(SC); and SANNI v THE STATE (2019) LPELR-48417(CA), per Bada, JCA at pages 22–24, para. E.

It is settled law that the evaluation and ascription of probative value to evidence is the primary duty of a trial Court: KELLY v STATE (2022) LPELR-57325(SC), per Ogunwumiju, JSC at page 18 paras. B–E;EDWIN v STATE (2019) LPELR-46896(SC), per Muhammad, JSC at page 28, paras. C–D; and FRN v IWEKA (2011) LPELR-9350(SC), per Galadima, JSC at page 59 paras. A–C. In the instant appeal, the Appellant has failed to show how the evaluation of the evidence by the trial Court is perverse and has not established any miscarriage of justice.

Where, as in this case, the trial Court has done its primary duty of evaluating and ascribing probative value to the evidence led before it, an appellate Court which this Court is, cannot interfere with same: EDWIN v STATE (supra); OKEOWO v A.G. OF OGUN STATE (2010) LPELR-2442(SC), per Onnoghen, JSC (as he then was) at pages 6–7, para. E; BELLO v FRN (2018) LPELR-44465 (SC), per Bage, JSC at pages 13–17, para. A; and IGBI & ANOR v STATE (2000) LPELR-1444(SC), per Ayoola, JSC at pages 14–15, para. E. It is in consequence of the above, that I also resolve issue 2 against the Appellant.

RESOLUTION OF ISSUE 3: Whether the sentence imposed on the Appellant by the trial Court is excessive.

Under this issue, the Appellant had essentially contended that in imposing a sentence of thirteen years imprisonment, the trial Court considered only deterrence at page 327 of the Record and failed to take into cognizance the principle of reformation especially as the Appellant was a first offender with a father and 2 infant children. It is trite that sentencing upon conviction is at the discretion of the trial Court which conducted the trial of the case.

However, there are general principles which guide the appellate Courts in deciding whether or not to interfere with the sentence passed by the lower Court. These are: 1. An Appeal Court should not interfere with a sentence imposed by a trial Court merely because it would have passed a different sentence had it tried the case at first instance. 2. The facts of the particular case should be considered. 3. The appellate Court should review the sentence only when it is shown to be manifestly excessive or inadequate or based on wrong principles.

See: OMOKUWAJO v FRN (2013) LPELR-20184(SC), per Aka’ahs, JSC at page 59 paras. C–G; ADEYEYE & ANOR v STATE (1968) LPELR-25500(SC), per Ademola, JSC (as he then was) at pages 2–3, paras. A–A; and ADEKOYA v STATE (2014) LPELR-22933(CA), per Tsammani, JCA at pages 45–46, paras. B–A.

Section 1 of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006 under which the Appellant was tried and convicted for conspiracy and obtaining money under false pretence provides in subsection (3) of that section as follows: “A person who commits an offence under Subsections (1) and (2) of this Section is liable on conviction to imprisonment for a term of not more than 20 years and not less than 7 years without option of a fine.” From Section 1(3) of the Act quoted above, the law has provided a latitude of discretion for the learned trial Judge to, taking into consideration of the circumstance of the case, impose a sentence in between ranging from the minimum of 7 years to the maximum of 20 years.

The record of proceedings of the trial Court at pages 326–328 of the Record of Appeal shows after delivery of his judgment convicting the Appellant on the 23rd of June, 2021, the learned trial Judge had, upon listening to the Appellant’s plea of mitigation, sentenced the Appellant to thirteen years imprisonment on each of the counts 1, 2 and 3 and ordered that the sentences shall run concurrently and backdated the commencement date to 9th September, 2014. Pursuant to Section 11(1) of the Act, the learned trial Judge also ordered the Appellant to make restitution to the Respondent, Mr.

Adebisi Adesola Alade, in the sum of N5,000,000.00 (Five Million Naira), being half the sum of the amount defrauded. It is therefore evident from the foregoing that, not only is the concurrent sentence of thirteen years imprisonment imposed by the trial Judge within the parameters provided by the enabling statute, its commencement was also backdated by seven years and the Appellant was ordered to make a restitution of N5 Million instead of the N8 Million traced to him.

The Appellant had merely insinuated that the trial Court had failed to consider the principle of reformation, but has failed to establish same. Given the situation in which the learned trial Judge had backdated the commencement of the sentence with seven years and ordered restitution of an amount less than that defrauded, it can hardly be argued that the trial Court failed to take into cognizance the principles of sentencing in imposing sentence on the Appellant.

On the whole, the Appellant has failed to establish that the sentence imposed on him by the trial Court is manifestly excessive or based on wrong principles. Thus, this Court cannot interfere with the discretion exercised by the trial Court in imposing same: OMOKUWAJO v FRN (supra); ADEYEYE & ANOR v STATE (supra); and ADEKOYA v STATE (supra). This third and last issue is also resolved against the Appellant. Having resolved all three issues in this appeal against the Appellant, the fate of this appeal is sealed. It is totally devoid of merit.

Accordingly, I dismiss this appeal for lack of merit and affirm the conviction and sentence of the Appellant by the trial Court in its judgment delivered on 23rd June, 2021 in Suit. No. FHC/IB/4C/2016: YUSUF AYODEJI LASISI v FEDERAL GOVERNMENT OF NIGERIA.

​MOORE

ASEIMO ABRAHAM ADUMEIN, J.C.A.: I had the advantage of reading the draft of the judgment just delivered by my learned brother, Abba Bello Mohammed, JCA. One of the Appellant’s complaints is that the trial Court delivered its judgment three months and twenty-eight days after the final addresses of the learned counsel for the parties. Counsel contended that the trial Court’s judgment was unconstitutional by virtue of the provisions of Section 294(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).

My learned brother has already summarized the facts of this case to show that at the close of evidence, the learned counsel for the parties adopted their written addresses on 26/02/2021 and the trial Court reserved its judgment for 30/04/2021 but the judgment could not be delivered, because of an industrial action embarked upon by the Judiciary Staff. However, on 23/06/2021, upon the request of the trial Court, the learned counsel readopted their written addresses and the Court proceeded to deliver its judgment on the same date.

I think that the Appellant’s grouse, as explained above, has no legal nor logical foundation or justification. If one may ask: What injustice did the Appellant suffer as a result of the procedure adopted by the trial Court? Understandably, the Appellant has not been able to demonstrate any miscarriage of justice occasioned by the procedure adopted by the trial Court.

In any case, the law is quite settled that failure to comply with the provisions of Section 294(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) will not justify an annulment of a judgment, unless the party complaining is able to show that the failure resulted in a miscarriage of justice. See Obodo v. Olomo (1987) 3 NWLR (Pt. 59) 111; Eseigbe v. Agholor (1990) 7 NWLR (Pt. 161) 234; Veritas Insurance Co. Ltd. v. Citi Trust Investment Ltd. (1993) 3 NWLR (Pt. 281) 349; Cotecna International Ltd. v. Churchgate Nig. Ltd. (2010) 12 SC (Pt. Il) 140 and Alhaji Musa Umar v.

Alhaji Tijanni Saleh Geidam (2019) 1 NWLR (Pt. 1652) 29. The term “miscarriage of justice” was defined and explained by the Supreme Court, per Niki Tobi, JSC; in the case of Alhaji Raufu Gbadamosi v. Olaitan Dairo (2007) 3 NWLR (Pt. 1021) 282 at 306. “Miscarriage of justice connotes decision or outcome of legal proceeding that is prejudicial or inconsistent with the substantial rights of the party, Miscarriage of justice means a reasonable probability of more favourable outcome of the case for the party alleging it. Miscarriage of justice is injustice done to the party alleging it.

The burden of proof is on the party alleging that the justice has been miscarried.” With particular reference to Section 294(1) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) it was held in the case of John Babani Elias v. Federal Republic of Nigeria (2021) 16 NWLR (Pt. 1800) 495 at 557 per Augie JSC; that: “It is also settled that in deciding a miscarriage of justice, as a result of the delay between conclusion of trial and the delivery of a judgment, the emphasis is not on the length of time simpliciter but on the effect that it produced in the mind of a Judge.

Thus, if the evaluation of evidence bears the mark of freshness and the findings of fact are supported by credible evidence, then the Court’s judgment will not be set aside, see Ojokolobo v. Alamu (1995) SCNJ 98, (1987) 3 NWLR (Pt. 61) 377”. Since the Appellant has not shown that the alleged non-compliance, even if it is true, occasioned any miscarriage of justice, this complaint is not enough reason for the judgment of the trial Court to be disturbed or interfered with.

It is for the foregoing reasons and the fuller reasons advanced in the leading judgment that I also dismiss this appeal and affirm the judgment of the trial Court.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the benefit of reading in advance the draft judgment of my learned brother, ABBA BELLO MOHAMMED, JCA. Having carefully read same, I must say that His Lordship has painstakingly dealt with the salient issues canvassed for the parties especially the issue of interference by the Appellate Court with the sentence imposed on a party as held in OMOKUWAJO V. FRN (2013) LPELR-20184(SC). I agree with the reasoning and conclusion of my learned brother, and abide by the consequential orders contained therein.

Judgment

MONICA BOLNA’AN DONGBAN-MENSEM, J.C.A. (Delivering the Leading Judgment): This is an appeal challenging the decision of the High Court of the Federal Capital Territory, Abuja, delivered on the 22nd of June, 2021 Coram A. O.

Otaluka (J.), wherein the trial Court found the Accused Person now Appellant guilty and convicted him on three Count Charge for the offence of corruptly asking for, agreeing to accept and accepting gratification contrary to the provisions of Sections 8(1)(a) and 17(1)(a) of the Corrupt Practices and other Related Offences Act, 2000 and punishable under the same Sections of the said Act.

I find the brief facts presented by the Respondent apt and I hereby reproduce same anon: That; “The Appellant was a member of the House of Representatives (7th National Assembly) and Chairman of the House of Representatives Ad-hoc Committee on monitoring of fuel subsidy regime, which was set up in 2012. ​That sometime in April, 2012 or thereabout, the Appellant while acting in his official capacity as a member of the House of Representatives Ad-hoc Committee on Monitoring of Fuel Subsidy Regime, corruptly asked for the sum of $3,000,000.00 (Three Million Dollars) for himself from one Mr.

Femi Otedola, Chairman, Zenon Petroleum and Gas Ltd, on account of intention of showing favour to Mr. Femi Otedola by removing the name of Zenon Petroleum and Gas Ltd. From the Report of the House of Representatives Ad-hoc Committee on Monitoring of Fuel Subsidy Regime. That the Appellant, while acting in the course of his official duty and capacity, corruptly obtained the sum $500,000.00 (Five Hundred Thousand Dollars) for himself from Mr.

Femi Otedola Chairman Zenon Petroleum and Gas Ltd as an inducement to remove name of Zenon Petroleum and Gas Ltd from the report of the committee on monitoring and fuel subsidy regime. That the Appellant pleaded not guilty to the charge and trial commenced. That in proof of its case, the Respondent called five (5) witnesses and tendered the following exhibits: I. Subpoena duces tecum served on PW1. II. Document titled ‘Order paper for the Special Session Sitting of the House of Representatives on Sunday, 8th January 2012. III.

First votes and proceedings of the Special Session Sitting of the House of Representatives on Sunday, 8th January, 2012. IV. Order paper of House of Representatives Sitting on Wednesday, 18th April, 2012. V. Votes and proceedings of House of Representatives Sitting on Tuesday, 8th April, 2012. VI. Order paper of House of Representatives Sitting of Tuesday, 24th April, 2012. VII. Votes and proceedings of House of Representatives Sitting on Tuesday, 24th April, 2012. VII.

Report of the Ad-hoc Committee to verify and determine the Actual Subsidy Requirements and monitor the implementation of Subsidy Regime in Nigeria, Resolution No: HR.1/2012 IX. Memo for forwarding $100,000.00 to the Defendant. X. CTC of Leadership Newspaper of 28th April, 2012. XI. Search warrant issued for search of house of Hon. Adams Jagaba. XII. Undertaking given by the Defendant dated 16th, June 2012 to refund the money $600,000.00. XIII. Diplomatic passport of the Defendant. XIV. Search Warrant issued for search of Defendant’s house. XV.

Document by the Defendant alleging handing over of the sum of $600,000.00 to Hon. Jagaba (PW4). XVI. PW2G -63: The Statements of the Defendant dated 14/6/2012. XVII. The statement of the Defendant dated 15/6/2012. XVIII. The statement of the Defendant dated 20/6/2021. XIX. The statement of the Defendant dated 11/7/2012. XX. The statement of the Defendant dated 16/7/2012. XXI. The statement of the Defendant dated 19/7/2012. XXII. The statement of the Defendant dated 25/7/2012. XXIII. Letter dated 19/4/12 referred to in exhibit PW2L. XXIV. Letter dated 23/4/12 written by Mr. Otedola to DG SSS.

XXV. The DVD. XXVI. The Certificate of compliance.” (See pages 5-7 of the Respondent’s Brief of Argument). At the close of the Respondent’s case, the Appellant made a No Case Submission which was overruled by the trial Court. The Appellant opened his defence, he testified for himself and 3 other witnesses. At the end of the trial, the Appellant was found guilty, convicted and was sentenced to 7 years each on Counts 1 and 2 and 5 years imprisonment on Count 3.

The sentences are to run concurrently. ​The parties in this appeal shall simply be referred to as Appellant and Respondent. ​Dissatisfied with the decision of trial Court, the Appellant filed a Notice of Appeal of twelve (12) Grounds on 28/07/2021. The Notice of Appeal is undated. Its Amended Notice of Appeal of fourteen (14) Grounds dated 20/10/2021 was filed on 21/10/2021 and was deemed filed on 10/11/2021.

The Appellant’s Brief of Argument dated 12/11/2021 was filed on 12/11/2021 while the Respondent’s Brief of Argument dated 21/12/2021 was filed on 21/12/2021 and was deemed filed on 12/01/2022. The Appellant filed its Reply Brief dated 10/01/2022 on 10/01/2022 and consequentially deemed filed on 12/01/2022. J. B. Daudu, SAN, of learned senior Counsel to the Appellant distilled six (6) issues for determination to wit; 1. Whether the High Court of the Federal Capital Territory Abuja, Per Hon.

Otaluka J, was not in grave error when it convicted the Appellant in one breath in count 1 for ‘corruptly asking for the sum of $3 Million from PW5 (Otedola)’ and in another breath convicting him of ‘corruptly agreeing to accept the sum of $3 Million from PW5 (Otedola)’ for identical purpose, when the 2 counts were not only duplicitous but are mutually exclusive, incongruous, embarrassing and prejudicial to the fair trial of the Defendant? (Ground 1, Amended Notice of Appeal). 2.

Whether the 3-count charge upon which the Appellant was purportedly tried, convicted and sentenced by the High Court of the Federal Capital Territory Abuja not incurably defective as the entire trial and the resultant conviction was based on a repealed or non-existent legislation i.e., the Corrupt Practices and other Related Offences Act 2000, which was repealed by the 2003 version? (Ground 2, Amended Notice of Appeal). 3.

Whether the trial High Court of the FCT Abuja was not in grave error when it held in relation to a critical ingredient common to the 3-count charge in this trial that the Appellant, a legislator in the House of Representatives of the National Assembly of Nigeria was ‘a public officer’ within the contemplation of the Corrupt Practices and other Related Offences Act 2000?

Or put in another way, whether a legislator in the National Assembly of Nigeria is for the purpose of the legislation referred to above also known as the ICPC ACT a ‘Public Officer’? (Grounds 3 and 4, Amended Notice of Appeal). 4. Whether the proceedings, trial and conviction of the Appellant under the Corrupt Practices and other Related Offences Act, 2000, was not a nullity, thereby ousting the jurisdiction of the trial High Court of the FCT Abuja, in view of the non-advertence by the learned trial Judge, the Hon.

Otaluka, J to the provisions of the Legislative Houses (Powers and Privileges) Act? (Grounds 5 and 6, Amended Notice of Appeal). 5. Whether the Prosecution proved any or all the ingredients of the 3-count charge for which the Appellant stood trial before the High Court of the FCT Abuja beyond reasonable doubt or even at all? In other words, whether the conviction of the Appellant in the circumstances described above is sustainable? (Grounds 7, 8, 9 and 10, Amended Notice of Appeal). 6.

Whether the contradictions, inconsistencies and inadequacies that plagued the evidence of the Prosecution witnesses were of such grave nature as to render the Appellant’s conviction on the 3-count charge unreasonable and unsustainable having occasioned a miscarriage of justice? (Grounds 11, 12 13 and 14 Amended Notice of Appeal). ​A.K.

Alilu, Esq., Assistant Director, Department of Public Prosecutions of the Federation, of learned Counsel to the Respondent distilled six (6) issues for determination to wit; (a) Whether the charge against the Appellant was bad for duplicity. (b) Whether the Appellant was convicted of crimes in a repealed or non-existent legislation. (c) Whether the Appellant, a legislator is a public officer within the ambit of the ICPC Act 2000. (d)The non-advertence by the learned trial Judge, Hon.

Otaluka J. to the provisions of the Legislative Houses (Powers and Privileges) Act- (e) Whether the prosecution proved any or all the ingredients constituting the offences in the 3-count charge against the Appellant. (f) The issue of contradictions and irreconcilables in the prosecution’s case. Both the Appellant and the Respondent have raised very similar issues for determination, this appeal shall be determined based on the six (6) issues raised by the Appellant.

A reflective consideration of all the issues nominated by both sides shows that the issues can be determined together in two groups: Issues 1, 2 and 4 and Issues 3, 5 and 6. ISSUES 1, 2 AND 4 The learned Silk to the Appellant submits that the trial Court was wrong to have convicted the Appellant on a fundamentally defective Charge which is bad for duplicity or ambiguity or misjoinder.

That counts one and two are duplicitous, mutually exclusive, contradictory and humanly impossible because it alleges in one breath that the Appellant ‘corruptly demanded’ the sum of $3,000,000.00 from PW5, Femi Otedola and in another breath alleges that he ‘corruptly agreed to accept’ the same amount from the same PW5. Further submits that the Respondent was unsure or indecisive as to which offence to charge the Appellant with and the Appellant suffered embarrassment, prejudice, deceit and miscarriage of justice as a result, which is inherent and embedded in the Charge Sheet. Cites TAFIDA V.

FRN (2014) 5 NWLR (PT. 1399) 129, OKEKE V. THE STATE (1948) 12 WACA 363, GEORGE V. FRN (2014) 5 NWLR (PT. 1399) 1, UKET V. FRN (2008) ALL FWLR (PT. 411) 923, ONAKOYA V. FRN (2002) 11 (PT. 779) 595 and MUSTAPHA V. FRN (2017) LPELR – 43131 (CA). ​The learned Silk further submits that the trial Court acted in excess of or without jurisdiction because the Appellant was tried and convicted on the repealed and non-existent legislation of the Corrupt Practices and other Related Offences Act, 2000, which had been legislatively supplanted by the Corrupt Practices and other Related Offences Act, 2003.

That a trial conducted without jurisdiction, no matter how conducted is a nullity. Relies on the decisions in Suit No FHC/ABJ/CS/225/2003 between THE AGF V. THE SENATE OF THE FEDERAL REPUBLIC OF NIGERIA, RT. HON. ANYIM PIUS ANYIM PRESIDENT OF THE SENATE, THE HOUSE OF REPRESENTATIVES, ALHAJI UMAR GHALI NA’ ABBA, EYOROKOROMO V. THE STATE (1979) 6/9 SC 3, ADEOYE V. THE STATE (1999) 6 NWLR (PT. 605) 74, FRN V. IFEGWU (2003) 15 NWLR (PT. 842) 113. The learned Silk distinguished the decision of the Apex Court in NWANKWOALA V.

FRN (2018) LPELR-43891 (SC) and the instant appeal in urging the Court to set aside the conviction arising from the Charge. It is the submission of the learned senior Counsel to the Appellant that the instant Charge is a flagrant violation of Sections 20 and 32 of the Legislative Houses (Powers and Privileges) Act respectively because the Appellant who is a Legislator ought to be charged for agreeing to accept or accepting bribe under Section 20 of the said Act and not under the ICPC Act.

Further submits that the Charge was not filed by the Attorney General of the Federation with the specific authorization of the President of the Senate or the Speaker of the House of Representatives as required by Section 32 of the said Act. Relies on MATARI V. DANGALADIMA (1993) 3 NWLR PT. 281 (266), CAC V. GOV. COUNCIL, ITF (2015) 1 NWLR (PT. 1439) 114 and ATTORNEY-GENERAL OF KADUNA STATE V. HASSAN (1985) 2 NWLR (PT. 8) 483 in urging the Court to declare the entire trial a nullity.

Responding, learned Counsel to the Respondent submits that the Charge is not bad for duplicity because each count does not contain more than one offence. That assuming without conceding that the Charge is bad for duplicity, the Appellant has failed to show how he was misled or suffered any miscarriage of justice which is the only ground his conviction can be set aside. Cites FRN V. MUSTAPHA (2017) LPELR, UBOGU V. STATE (2018) LPELR-46392 (CA), OKEKE V. COMMISSIONER OF POLICE (1948) 12 WACA 363 and YAHAYA V.

STATE (2014) LPELR-24083 (CA). ​Further contends that contrary to the submission of the Appellant, ICPC Act, 2000 is still fully in force and was not invalidated by the subsequent ICPC Act, 2003. That assuming without conceding the Appellant is right, the conviction of the Appellant will not be set aside where it is an offence known to law and where there is an existing law under which the Appellant should have been tried unless it is shown that the Appellant suffered a miscarriage of justice as a result. Relies on TEMPLE NWANKWOALA V. FRN (2018) LPELR-43891 (SC), IORHEM V.

STATE (2017) LPELR-43631 (CA) and OKOH V. STATE (2013) LPELR-21009 (CA) in urging the Court to discountenance the issues raised by the Appellant. The learned Counsel to the Respondent maintains that the trial Court is not bound by the Legislative Houses (Powers and Privileges) Act because it was enacted to guide the practice and procedure of the National Assembly and not to be applied by a Court of competent jurisdiction.

That the Appellant cannot be tried under the said Act because it relates to Legislative actions committed within the House and the immunity provided by the said Act is for words spoken or acts done in the Legislative House not a shield for criminal acts committed against the law of the Federal Republic of Nigeria. Cites A.G OGUN STATE V. A.G FEDERATION (1982) LPELR-11 (SC) and LAWAN V. ZENON PETROLEUM & GAS LTD & ORS. (2014) LPELR-23206 (CA) and urges the Court to dismiss the contention of the Appellant.

In its Reply Brief, the Appellant submits that the miscarriage of justice is apparent being multiple punishment for a single course of criminal conduct and the cases cited by the Respondent are distinguishable from the instant case. The Appellant urges the Court to reject the interpretation by the Respondent that Section 20 of the Legislatives Houses (Powers and Privileges) Act, 2004 relates to only words explicitly spoken or done in the legislative house and not a criminal act as same is not rooted in law. That the finding of the Court in LAWAN V.

ZENON PETROLEUM & GAS LTD & ORS. (2014) LPELR-23206 (CA) is not applicable in the instant case. Black’s Law Dictionary, 9th edition defines duplicity thus; “1. Deceitfulness, double-dealing. 2. The charging of the same offence in more than one count of an indictment. 3. The pleading of two or more distinct grounds of complaint or defence for the same issue. In criminal procedure, this takes the form of joining two or more offences in the same count of an indictment. Also termed double pleading.

Alternative pleading under Pleading, (2) double plea under plea (3) Cases: Federal Civil Procedure, Indictment and Information, pleading”. (See page 578). Simply put, duplicity is the joining of two or more distinct offences in the same count of a Charge.

This is in tandem with Section 156 of the Criminal Procedure Act, 1945 which provides thus; “For every distinct offence with which any person is accused there shall be a separate charge and every such charge shall be tried separately except in the cases mentioned in Sections 157 to 161 of this Act.” A charge is said to be bad for duplicity where two or more offence are concentrated or included in a Count making it unfair to the trial and defence of an Accused or Defendant in a criminal trial.

However it must be shown that such duplicity is material and has misled the Defendant or that it has led to failure of justice. See OKEKE V. POLICE 12 WACA P. 363 and ONAKOYA V. FRN (2002) LPELR-2670 (SC). There are certain exceptions to the general role against duplicity stated in Section 156 (Supra), they are contained in Sections 157 and 158 of the same Criminal Procedure Act as follows; “157(1).

When a person is accused of more offences than one committed within the period of twelve months from the first to the last of such offences, whether in respect of the same person or thing or not, he may be charged with and tried at one trial for any number of them not exceeding three. 158.

If in one series of acts or omissions so connected together as to form the same transaction or which form or are part of a series of offences of the same or a similar character, more offences than one are committed by the same person, charges for such offences, whether felonies, misdemeanors or simple offences, may be joined and the person accused tried therefor at one trial.” The Charge against the Appellant as contained in pages 1315-1317 of the Records is as follows; “COUNT ONE: That you Hon.

Farouk Lawan (M) while being a member of the House of Representatives and chairman of the House of Representatives Ad-Hoc Committee on Monitoring of Fuel Subsidy Regime sometimes in April, 2012 or thereabout at Abuja within the Federal Capital Territory under the jurisdiction of this Honourable Court, did, while acting in the course of your official duty corruptly asked for the sum of $3,000,000 (Three Million US Dollars) for yourself from Mr. Femi Otedola. Chairman Zenon Petroleum and Gas Ltd on account of intention to afterwards show favour to the said Mr.

Femi Otedola by removing the name of Zenon Petroleum and Gas Ltd from the Report of the House of Representatives Ad-Hoc Committee on Monitoring of Fuel Subsidy Regime and you thereby committed an offence contrary to Section 8(1)(a) of the Corrupt Practices and Other Related Offences Act, 2000 and punishable under Section 8(1) of the same Act. COUNT TWO: That you Hon.

Farouk Lawan (M) while being a member of the House of Representatives and chairman of the House of Representatives Ad-Hoc Committee on Monitoring of Fuel Subsidy Regime sometimes in April, 2012 or thereabout at Abuja within the Federal Capital Territory under the jurisdiction of this Honourable Court; did, while acting in the course of your official duty corruptly agreed to accept the sum of $3,000,000 (Three Million US Dollars) for yourself from Mr.

Femi Otedola, Chairman Zenon Petroleum and Gas Ltd as an inducement to remove the name of Zenon Petroleum and Gas Ltd from the Report of the House of Representatives Ad-Hoc Committee on Monitoring of Fuel Subsidy Regime and you thereby committed an offence contrary to Section 17(1)(a) of the Corrupt Practices and Other Related Offences Act 2000 and punishable under Section 17(1) of the same Act ​COUNT THREE: That you Hon.

Farouk Lawan (M) while being a member of the House of Representatives and chairman of the House of Representatives Ad-Hoc Committee on Monitoring of Fuel Subsidy Regime sometimes in April, 2012 or thereabout at Abuja within the Federal Capital Territory under the jurisdiction of this Honourable Court, did, while acting in the course of your official duty corruptly obtained the sum of $500,000 (Five Hundred Thousand US Dollars) for yourself from Mr.

Femi Otedola, Chairman Zenon Petroleum and Gas Ltd as an inducement to remove the name of Zenon Petroleum and Gas Ltd from the Report of the House of Representatives Ad-Hoc Committee on Monitoring of Fuel Subsidy Regime and you thereby committed an offence contrary to Section 17(1)(a) of the Corrupt Practices and Other Related Offences Act, 2000 and punishable under Section 17(1) of the same Act.” (Emphasis Supplied).

On the face of the Charge Sheet, count one is for the offence of corruptly asking for the sum of $3,000,000, count two is for the offence of corruptly agreeing to accept the sum of $3,000,000 and count three is for corruptly obtaining the sum of $500,000. These are three separate offences provided for in Sections 8(1)(a) and 17(1)(a) of the Corrupt Practices and Other Related Offences Act, 2000. These offences were brought under three different Counts of the Charge and none of them is a repetition of the other.

For a Charge to be bad for duplicity, it must contain more than one offence in the same Count or a repetition of an offence already stated in another Count. Upon a cursory look at the Charge which has been reproduced above, can it be rightly said that the Charge is bad for duplicity? The response is in the negative and this is because it is abundantly clear that each of the three separate offences are contained in three separate counts. Documents and Statutes that are clear and unambiguous must be given their literal meaning.

Furthermore, in addition, the Appellant must show how the duplicity of the Charge misled him or caused him to suffer a miscarriage of Justice. The Courts have since moved away from the era of technical justice to an era of substantive justice. Reason being that the Court recognizes that we are human and therefore fallible and susceptible to slips and minor errors.

Where such errors do not in any way infringe on the fundamental rights of the Accused Person as enshrined in Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), this Court will not interfere with the decision of the trial Court. I find the dictum of His Lordship, KALGO, J.S.C. in the case of ONAKOYA V. FRN (2002) LPELR-2670 (SC) very instructive on this issue. The appeal was against the decision of the Court of Appeal, Lagos Division which upheld the decision of the Failed Banks Tribunal, Lagos Zone V.

The Accused at the Failed Banks Tribunal, Lagos Zone V, pleaded not guilty to charge of committing a felony by approving and granting credit facility of 14m to one Alhaji Ibrahim, a customer of the Maiduguri Branch of the Savannah Bank of Nigeria PLC without lawful authority and in violation of the lending rules and regulations in force at the time in Savannah Bank particularly Memorandum 119. The Conduct is also an Offence contrary to Section 19(1)(a) (b) & (c) of the Failed Banks (Recovery of Debts) and Financial Malpractices in Banks Decree No.18 of 1994 as amended.

In dismissing the appeal, the Apex Court while affirming the decision of this Court acknowledged that there was procedural irregularity but it did not lead to miscarriage of justice. The Apex Court held thus; “Duplicity is a matter of procedure or form and not evidence. See R. v. Greenfield (1973.) 57 Cr. App, R. 849. It is covered by Section 156 of the Criminal Procedure Act which provides in part: “For every distinct offence with which any person is accused there shall be a separate charge …” It is therefore a matter of procedure and not law. This Court in the case of Nwosu v.

Imo State Environmental Sanitation Authority (1990) 2 NWLR (Pt.135) 688 at 717 had this to say:- “As we have stated several times, the days when parties pick their way in this Court through naked technical rules of procedure, the breach of which does not occasion a miscarriage of justice are fast sinking into the limbo of forgotten things. The Court now takes the view that not every slip is fatal to the cause of justice. Judges are not omniscient robots, which never deviate from a programmed course. They sometimes slip.

But only those slips that have been shown to have affected the decision appealed against will amount to a substantial misdirection which will result in the appeal being allowed. See on this Onajobi v. Olanipekun (1985) 11 SC (Pt. 11) 156 at 163; also Jude Ezeoke & Ors. v. Moses Nwagbo & Anor (1988) 1 NWLR (Pt.72) 616 at 626. “ Also, in the case of Obakpolor v.

State (1991) 1 NWLR (Pt.165) 113 in an appeal against the conviction for murder, this Court dealt with the question of the failure of the magistrate who conducted the preliminary inquiry in the case and committed the appellant for trial to comply with Section 314(1) of the C.P.A., and held that even though there was procedural irregularity in not complying with the said Section, there was no miscarriage of justice and the appeal was dismissed. On page 129 of the report, Akpata, J.S.C who wrote the leading judgment said:- “That there was procedural irregularity is not in doubt.

It is however an irregularity which has not led to a miscarriage of justice… it is the paramount duty of Courts to do justice and not cling to technicalities arising from statutory provisions or technicalities inherent in rules of Court.

So long as the law or rule has been substantially complied with and the object of the provisions of the statute or rule is not defeated and failure to comply fully has not occasioned a miscarriage of justice; the proceedings will not be nullified.” (Emphasis Supplied). ​In an attempt to showcase the miscarriage of justice suffered by the Appellant as a result of the defective Charge, the learned senior Counsel to the Appellant submits that the Appellant is being punished repeatedly for the same offence.

This argument is not tenable in the instant appeal where the sentence of the Appellant is to run concurrently. The Appellant must satisfactorily establish that he was misled, embarrassed or prejudiced for the law against duplicity to avail him. A plethora of authorities abound to the effect that the question of duplicity is clearly an error in the process of the case. Such an error is immaterial, unless the accused has been in fact misled by such error or omission and occasioning a miscarriage of justice. See MOHAMMADU V. COP (1969) LPELR-25419 (SC), STATE V.

GWONTO (1983) LPELR-3220 (SC), TAFIDA V. FRN (2013) LPELR-21859 (SC), JIBRIN V. STATE (2021) LPELR-56233 (SC). JOHN V. STATE (2019) LPELR-46936 (SC), OGBOMOR V. STATE (1985) LPELR-2286 (SC), IBRAHIM V. STATE (2017) LPELR-42261(SC) and MAKANJUOLA V.

STATE (2021) LPELR-54998 (SC). ​On the issue of the Appellant being charged and convicted under a repealed or non-existent Legislation, the law is unequivocal 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 Section 166, Criminal Procedure Act. What is most important is whether the Accused Person is charged with an offence known to law.

The law does not allow the Courts to render as incompetent a process filed in due process of law, simply because the wrong law is cited.

Section 36 of the Constitution requires an accused to be charged with an offence known to law. The Apex Court has given a judicial flesh to this provision in the case of TIMOTHY v. FRN (2013) 4 NWLR (Pt. 1344) 213. See also AKALA V. FRN (2014) LPELR-22930 (CA), EGUNJOBI V. FRN (2012) LPELR-15537 (SC), SELE V. STATE (1993) LPELR-3030 (SC) and YABUGBE V. C.O.P (1992) LPELR-3505 (SC). The Appellant sought to distinguish between the decision in NWANKWOALA V.

FRN (2018) LPELR-43891 (SC) where the Apex Court declared the Corrupt Practices and Other Related Offences Act, 2000 as the extant law and Suit No. FHC/ABJ/CS/225/2003 between AGF V. ALH. UMAR GHALI NA’ABBA where the Apex Court ordered a retrial of the suit challenging the Constitutionality of the Corrupt Practices and Other Offences Act, 2003. It is noteworthy that the Appellant has acknowledged that since the Order for retrial by the Apex Court, the suit has not been re-heard or retried. I therefore agree with the Respondent that the Pronouncement of the Apex Court in NWANKWOALA V.

FRN (SUPRA) is the binding law on which of the Corrupt Practices and Other Offences Act is valid and subsisting.

The Apex Court in NWANKWOALA V. FRN (SUPRA) declared and I crave indulgence to quote extensively thus; “…I have read both views and relevant legislation on the matter. I am in complete agreement with the reasoning of both Courts. To my mind, the issue appears straightforward. There is in existence the Corrupt Practices and Other Related Offences Act of 2000. In 2003 the National Assembly promulgated the Corrupt Practices and Other Related Offences Act of 2003. It has as its commencement date 18th May, 2003.

In Section 55 supra the Corrupt Practices and Other Related Offences Act, 2000 was repealed. See Laws of the Federation Vol. 3 Chapter C31 – 1. Four days after 18th May 2003, that is on 21st May, 2003 a Federal High Court Abuja in Suit No. FHC/ABJ/CS/93/2003. Hon. Bala Kaoje & 5 Ors. v. The National Assembly of the Federal Republic of Nigeria & 13 Ors, declared the ICPC Act of 2003 passed by the National Assembly in violation of a subsisting Court order null, void and of no effect, and revalidated the ICPC Act of 2000.

In the absence of an appeal from the decision of the Federal High Court that ruling remains inviolate until set aside. The law in force is the Corrupt Practices and Other Related Offences Act 2000 and not the Corrupt Practices and Other Related Offences Act 2003. See FRN v. Wabara (2013) 5 NWLR (Pt.1347) p.331; AG Ondo v. AG Federation & 35 Ors (2002) 9 NWLR (Pt.772) p.222; Egharevba v. FRN (2016) 2 SC (Pt.iii) p.166. I must observe that since 2003, in the compilation of laws of the Federation the Corrupt Practices and Other Offences Act 2003 could be found.