MUSTAPHA v. FRN (2020)

MUSTAPHA v. FRN

(2020)LCN/14255(CA)

In The Court Of Appeal

(GOMBE JUDICIAL DIVISION)

On Tuesday, June 16, 2020

CA/G/67C/2019

Before Our Lordships:

Jummai Hannatu Sankey Justice of the Court of Appeal

Muhammed Mustapha Justice of the Court of Appeal

James Gambo Abundaga Justice of the Court of Appeal

Between

BAKURA MUSTAPHA APPELANT(S)

And

FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)

RATIO

THE FUNDAMENTAL HUMAN RIGHT UNDER SECTION 36(6)(C) OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA

THE REQUIREMENT TO BE MET BEFORE A PERSON CHARGED WITH A CRIMINAL OFFENCE IS TO APPEAR BEFORE THE COURT FOR AN ARRAIGNMENT

From a community reading of the constitutional provision in Section 36(6) and the statutory requirement under Section 215 of the Criminal Procedure Law, it is evident that where a person is charged with a criminal offence and he is to appear before a Court for an arraignment, the following requirements should be satisfied:
(a) The person shall be informed promptly in a language he understands and in detail of the nature of the offence he is alleged to have committed;
(b) The person to be tried shall be placed before the Court unfettered;
(c) The charge shall be read and explained to him by the officers of the Court, to the satisfaction of the Court;
(d) The accused person shall then be called upon to plead instantly to the charge.
It is to be noted that it is the accused person himself that pleads to the Charge even when represented by Counsel. Counsel cannot take the plea on behalf of the accused. It is only after the plea has been taken that Counsel thereafter takes over the defence of the accused. It is also essential that the Record of proceedings should ex facie show that the requirements of the law have been fully complied with. See Olabode V State (2009) 11 NWLR (Pt. 1152) 254, 275, per Muhammad, JSC. PER SANKEY, J.C.A.

THE PURPOSE OF CONDUCTING A TRIAL WITHIN TRIAL

It must be said that the law is long since settled that the purpose of a trial-within-trial is to determine whether or not statement(s) made by an accused to the Police were voluntarily made. Where the authorship of the statement is denied, the question of voluntariness and ipso facto a trial-within-trial will be irrelevant. Thus, the argument that the Lower Court should have held a trial-within-trial in the instant case does not hold water because it is only where an issue arises as to whether or not a confession was made voluntarily that the exceptional procedure of holding a trial-within-trial should be adopted by a trial Court.
Put in another way, a trial-within-trial is by no way automatic in all situations and circumstances. The purpose is to call evidence to determine the voluntariness or otherwise of a confessional statement. The trial-within-trial is only required where the accused person objects to the admissibility of the confession on the ground that it was not voluntary, but was obtained by threat, intimidation or duress. The objection must be raised at the point when the prosecution seeks to tender the confessional statement in evidence. If the Appellant raises no objection and the confessional statement is admitted in evidence, the issue of a trial-within-trial cannot subsequently arise.
The origin, reasons and incidence of a trial-within-trial were fully considered by the Supreme Court as far back as 1992 in its decision in Gbadamosi V State (1992) NWLR (t. 266) 465. See also FRN V Iweka (2011) LPELR-SC.454/2010 where Mukhtar, JSC observed:
“A trial within trial becomes necessary at the stage where a caution statement is about to be tendered and its admissibility was objected to promptly by the accused person, and not anytime later.”(Emphasis supplied)
Consequently, the purpose of a trial-within-trial is certainly not to determine whether the accused made a statement. Thus, where an accused person disowns the statement in question, there can be no trial-within-trial. See also the following decisions: Nweneke V State (2019) LPELR-47018 (CA); Ori V State (2017) LPELR-43258(CA) 9-10, C; Igri V State (2009) LPELR-4374 (CA) 37, D-E; Mustapha Mohammed V State (2006) LPELR-7690(CA) 32, B-E; & Okaroh V State (1988)3 NWLR (Pt. 81) 214. PER SANKEY, J.C.A.

WHETHER OR NOT THE COURT CAN AWARD A TERM OF IMPRISONMENT WHERE THE ORDER FOR COMPENSATION TO BE PAID TO THE VICTIM OF A CRIME IS DISOBEYED

It is indeed the law as set out in Section 365 of the Criminal Procedure Code, Cap 42, Laws of Borno State, 1994 that the Court may order that compensation be paid to the victim of a crime and a term of imprisonment may be awarded for failure to pay the compensation. However, there is a procedure which must be followed before compensation may be awarded and it lies in the fact that the entitlement to same must first be established and the other side heard before the award. PER SANKEY, J.C.A.

JUMMAI HANNATU SANKEY, J.C.A. (Delivering the Leading Judgment): This Appeal is against the Judgment of the High Court of Justice, Borno State sitting at Maiduguri delivered on November 29, 2018, Coram: Kumalia, J. Therein, the Appellant was convicted on a two count charge of impersonation punishable under Section 132 of the Penal Code Law, Cap 102, Laws of Bornu State, and receiving money under false pretences punishable under Sections 1(1) (b) and 1(3) of the Advance Fee Fraud and other Fraud Related Offences Act, 2006.

The brief facts leading to this Appeal are as follows: The PW1, Mamman Alhaji Abubakar, had a dispute with one Babashehu (PW2) over the sum of N8.5 Million, being money derived from the inheritance of his father which he gave Babashehu for purposes of investment in a contract. Subsequently, the Appellant contacted him via a phone call pretending to be an EFCC operative named “Kola”, serving at the EFCC office at Maiduguri. He offered his services towards the recovery of PW1’s money with PW2. The Appellant however requested for a quid pro quo in return for his efforts, which is that the PW1 was to pay to him the sum of

N300, 000.00 for his efforts. He therefore gave PW1 his account details with FCMB Bank into which he was to make payment. The PW1 went ahead to pay in an initial sum of N100, 000.00 into the account which was purportedly to be used by the Appellant to register a new company for him.

Thereafter, that Appellant embarked on sending threatening text messages to PW2 in the guise of being Kola, an EFCC operative, to cause him to pay back the money owed to PW1. As a direct result of these threats, PW2 repaid some part of the debt owed to PW1. Consequently, the Appellant insisted that PW1 should pay him the sum of N300, 000.00 earlier agreed. The PW1 proceeded to give the Appellant the sum of N80, 000.00. Still, the Appellant, continuing in his pretence of being an EFCC operative, continued to mount pressure on PW1 to pay the sum of N200, 000.00 as the amount outstanding from the sum of N300, 000.00 agreed upon to facilitate his assignment. At the same time, he still continued to threaten the PW2 to pay PW1 the balance of his money.

At a point in time, PW1 told his mother of what had transpired between him and the PW2, who happened to be his father’s

friend, and how the Appellant, an EFCC operative was insisting that he pay him money to recover the funds which formed part of the family inheritance. His mother in turn informed her brother who proceeded to make discreet inquiries about the Appellant. As a result, it was discovered that the Appellant was not an operative of the EFCC as he had held himself out to be, neither was his name Kola. Consequently, PW1 laid a formal complaint against the Appellant at the office of the EFCC Maiduguri.

The EFCC in the course of their investigations, successfully arrested the Appellant when he came to the shop of the PW1 to receive the additional sum of N200, 000.00 which he had demanded from PW1. Upon his arrest, the Appellant made four statements to the EFCC, Exhibits A1-A4. Some of the statements were confessional in nature. The Appellant was thereafter arraigned before the Lower Court on a two-count charge. The Charge alleged as follows (at pages 3-4 of the printed Record of Appeal):
“COUNT ONE
That you, BABAKURA MUSTAPHA sometimes in June, 2017 at Maiduguri, Bornu State within the jurisdiction of this Honourable Court, falsely personate a staff

of the Economic and Financial Crimes Commission (EFCC) and in such assumed character, you presented yourself to one MAMMAN ALH. BUKAR, bearing a fictitious name, Mr. Kola and pretended to be handling his case in Economic and Financial Crimes Commission and thereby committed an offence contrary to and punishable under Section 132 Penal Code Law Cap 102, Laws of Bornu State.
COUNT TWO
That you, BABAKURA MUSTAPHA sometimes in June, 2017 at Maiduguri, Bornu State within the jurisdiction of this Honourable Court and with intent to defraud induced one MAMMAN ALH. BUKAR to deliver to you the sum of Eighty Thousand Naira only (N80, 000:00) as part payment out of an agreed sum of N300, 000:00 (Three Hundred Thousand Naira) only under the false pretence that you are a staff of the Economic and Financial Crimes Commission (EFCC) and that said sum would be used in assisting him in his case, facts you knew to be false and you thereby committed an offence contrary to and punishable under Sections 1(1) (b) and 1(3) of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006 respectively.”

On the day the Appellant was to be arraigned before the

Lower Court, he was not represented by Counsel as his Counsel was said to still be on his way to Court. After a brief stand down of the proceedings to no avail, the charge was read to the Appellant. He said he understood it and and he pleaded “guilty but with reason”. In view of the qualified guilty plea, the learned trial Judge declined to convict him on his plea and instead, invited the Respondent to adduce evidence to establish the allegations in the Charge.

In the course of trial, the Respondent adduced evidence through three witnesses and four exhibits. In his defence, the Appellant testified and called one other witness. No document was offered in evidence by him. In giving evidence in his defence as DW1, the Appellant for the first time, contended that his confessional statements were not voluntary. Throughout the course of the trial, the Appellant was represented by Counsel.

In his Judgment at the close of trial, the learned trial Judge found that the Respondent had proved the Charge against the Appellant beyond reasonable doubt, and so convicted and sentenced him accordingly. Aggrieved by this decision, the Appellant filed an

Appeal on 03-01-19 wherein he complained on six grounds as contained in the Notice of Appeal.

In arguing the Appeal on May 27, 2020, learned Counsel for the Appellant, Adamu Bawa Esq., holding the brief of B. Grema Esq., adopted the Appellant’s Brief of Argument filed on 09-04-19 and settled by B. Grema Esq., in urging the Court to allow the Appeal. However, the Respondent’s Counsel, Khalid Sanusi Esq., even though duly notified electronically of the date of hearing of the Appeal, was not in Court. Thus, in line with Order 19 Rule 9(4) of the Court of Appeal Rules, 2016, the Respondent’s Brief of argument dated May 7, 2019, filed on May 8, 2019 and settled by Khalid Sanusi, Esq., was deemed duly argued.

In his Brief of argument, the Appellant distilled the following four issues for determination by the Court:
1. “Whether the Trial Court was right in convicting the Appellant based on Exhibits A1, A2, A3 and A4 when there is unchallenged evidence discrediting such Exhibits. (Ground 1)
2. Whether the Trial Court was right in holding that “The plea of guilty is a sufficient proof that the accused committed the

offence” when, at the time of taking the plea, the Appellant was not given opportunity of representation of Counsel even though he informed the Court that his Counsel was on his way coming. (Grounds 2 and 3)
3. Whether the prosecution has proved all the ingredients of the offences to which the Appellant was convicted. (Ground 4)
4. Whether the trial Court was right in sentencing the Appellant to 6 months imprisonment or fine of N100,000.00 to be paid to PW1 being the amount deposited in his account for incorporating a company when there is no such offence in the Charge at the trial Court. (Grounds 5 and 6)”

On his part, the Respondent formulated one lone issue for determination as follows:
“Where (sic) or not from the totality of evidence adduced in the trial Court, the prosecution has proved their case beyond reasonable doubt to warrant the said conviction of the Appellant.”

After due consideration of the two sets of issues for determination, the issues of the Appellant shall be used in the determination of the Appeal. However, they shall be considered in the following order: issue two, issue one, issue three

and issue four respectively.

Arguments:
Issue two: Whether the trial Court was right in holding that “The plea of guilty is a sufficient proof that the accused committed the offence” when at the time of taking the plea the Appellant was not given opportunity of representation of Counsel even though he informed the Court that his Counsel was on his way coming.

Under this issue, Counsel for the Appellant narrated exactly what transpired at the lower Court at the time of the arraignment of the Appellant. He submits that the learned trial Judge, by failing to wait for the arrival of the Appellant’s Counsel before taking the Appellant’s plea to the Charge, denied him legal representation and so violated his constitutional right. Therefore, that the conviction of the Appellant, which he contends was based on his guilty plea, should be set aside.

In response, learned Counsel for the Respondent submits that the plea of the Appellant amounted to a not guilty plea. Therefore, on the Order of the lower Court, the case proceeded to trial. The Respondent called witnesses and tendered exhibits which he contends were unchallenged,

and so the Court was bound to act on them.

In addition, by virtue of Section 36(6)(c) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), the Appellant has the constitutional right either to represent himself or to be represented by Counsel of his choice. Therefore, even though at the initial stage of proceedings, the Appellant was not represented by Counsel, in the subsequent proceedings of the Court, he was fully represented by Counsel and so there was compliance with the constitutional provision.

Resolution:
From the submissions of learned Counsel for the Appellant under this issue, I understand him to be making a two-pronged attack on the Judgment of the Lower Court as follows:
(i) that the plea of the Appellant was taken in the absence of his Counsel even when he had stated that his Counsel was late in arriving to Court; and
(ii) in his Judgment, the learned trial Judge relied on his guilty plea made in the absence of his Counsel to convict him of the Charge.

On the first leg, pages 22A to 23 of the printed Record of appeal partly bears out the assertion of the Appellant. It discloses that upon the

Appellant indicating that his lawyer who was not in Court, was still on the way, the Court stood down the case till later in the day for the Appellant to be arraigned for his plea to be taken. Therefore, it is not correct to say that the Lower Court disregarded the absence of his Counsel during his arraignment. However, later in the day when the case was again called up for the second time, upon the application of Counsel for the prosecution that the plea be taken, the charge not being one of a capital nature, the lower Court acceded.

As has been rightly submitted by learned Counsel for the Respondent, by Section 36(6)(c) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), every person who is charged with a criminal offence shall be entitled to defend himself in person or by legal practitioner of his own choice. In the instant case, I am hard-put to see how this constitutional provision was breached by what happened as reflected in the Record. Even though the Appellant purported to have briefed Counsel who would represent him, at the time the Court convened, no such Counsel was in Court. Nonetheless, the Court obliged him a

stand-down of the case until later in the day to enable his Counsel to arrive. Later in the day, when the Counsel still did not appear, the Court proceeded to grant the application of the prosecuting Counsel and directed that the Charge be read and explained to the understanding of the Appellant who then proceeded to plead to same. By so doing, Section 36(6) (c) of the Constitution (supra) was duly complied with.
This is more so that, even when the Appellant in pleading to the two counts of Charge, stated twice : “I plead guilty but with reason”, the learned trial Judge wisely declined the invitation of the prosecutor to convict the Appellant on his plea, but instead adjourned the case for the prosecution to prove the allegations in the Charge. It is evident that the so-called guilty plea was not unequivocal but conditional or qualified. Therefore, the Lower Court was right to have invited the prosecution to prove its case to the standard required by law.
From a community reading of the constitutional provision in Section 36(6) and the statutory requirement under Section 215 of the Criminal Procedure Law, it is evident that where a

person is charged with a criminal offence and he is to appear before a Court for an arraignment, the following requirements should be satisfied:
(a) The person shall be informed promptly in a language he understands and in detail of the nature of the offence he is alleged to have committed;
(b) The person to be tried shall be placed before the Court unfettered;
(c) The charge shall be read and explained to him by the officers of the Court, to the satisfaction of the Court;
(d) The accused person shall then be called upon to plead instantly to the

h\arge.
It is to be noted that it is the accused person himself that pleads to the Charge even when represented by Counsel. Counsel cannot take the plea on behalf of the accused. It is only after the plea has been taken that Counsel thereafter takes over the defence of the accused. It is also essential that the Record of proceedings should ex facie show that the requirements of the law have been fully complied with. See Olabode V State (2009) 11 NWLR (Pt. 1152) 254, 275, per Muhammad, JSC.
From the pages of the printed Record, there is no question that these salient requirements for a

proper arraignment were fully observed in the instant case, notwithstanding the absence of the Appellant’s Counsel.

In respect of the second leg of this issue, the Judgment of the Court at pages 64-66 of the Record discloses the references which the learned trial Judge made to the qualified guilty plea of the Appellant and situates it in context. He rightly stated the position of the law in respect of when an accused person, after understanding the Charge read to him, freely pleads guilty to it. His reliance on the decisions in Chukwu V FRN (2013) 12 NWLR (Pt. 1369) and Omoju V FRN (2008) 7 NWLR (Pt. 1085) 88 cannot be faulted. It is evident that the reference made by the Court to the Appellant’s plea of guilty at his arraignment was in relation to the consideration of his defence and the standard of proof applicable. Consequently, the statement of the learned trial Judge referred to at page 64 lines 21-22 of the Record that:
“The plea of guilty alone is a sufficient proof that the accused committed the offence…”
was clearly taken out of context without a holistic reading of the Judgment.

In the subsequent

analysis of the Appellant’s plea of “guilty with reason” (pages 65-66 of the Record), the learned trial Judge deftly and meticulously examined the reasons proffered by the Appellant during his evidence-in-chief as DW1 to explain and justify his actions in impersonating an EFCC operative and obtaining money by such false pretences from the PW1. He disbelieved the latter-day defence of the Appellant that it was the PW1 – complainant to the EFCC/victim – that prompted him to put on this toga to his own detriment. The Court however found that even if his story was to be believed, the Appellant still admits in his evidence that he committed the offences as charged, the ostensible reasons why he did so, notwithstanding. He therefore found as follows at page 65 of the Record:
“In the instant case, what is then the reason for the accused to plead guilty with reasons when he was arraigned in Court? His accusation of the PW1 as the person that prompted him and instigated him to send the text messages to Babashehu lacks merit and cannot exonerate him in this case… If it is true that the PW1 prompted him to send text messages to

Babashehu as claimed, did the PW1 also prompt him to call him (PW1) under a fictitious name of Kola and also to visit him at 7p.m. near his shop to collect N80, 000. Certainly, the claim of the accused is ridiculous and false. Therefore, the claim that he acted on the promptings of the PW1 is farfetched, untrue and cannot certainly be a defence to him… His defence is not true and therefore not believed by the Court.” (Emphasis supplied)

I therefore decline to interfere with such sound reasoning and findings by the trial Judge. For these reasons, I resolve issue two against the Appellant and in favour of the Respondent.

Issue one: Whether the trial Court was right in convicting the Appellant based on Exhibits A1, A2, A3 and A4 when there is unchallenged evidence discrediting such Exhibits.

Under this issue, learned Counsel for the Appellant submits that the conviction and sentence of the Appellant based on Exhibits A1, A2, A3 and A4 was wrong in law same having been discredited. He argues that the said documents were discredited in his evidence as DW1 on the basis that they were not voluntarily made. However, that in spite of this,

the Lower Court failed to conduct a trial-within-trial to test the voluntariness or otherwise of the statements.

In response, learned Counsel for the Respondent submits that the said Exhibits were tendered and admitted into evidence without any form of objection from the Appellant. That the guilt of an accused person may be established by his confessional statement or circumstantial evidence or the evidence of witnesses. Therefore, that the lower Court could convict based on the Appellant’s confessional statement, and in this case, that the Charge was proved based on circumstantial evidence.

Resolution:
Under this issue, the Appellant has sought to impugn or discredit the integrity of the Judgment on the ground that the Lower Court ought not to have acted on the Exhibits A1-A4 on the ground that the Court failed to conduct a trial-within-trial even when the Appellant in his evidence as DW1, had stated that the confessional statement was not voluntary. I have therefore examined the facts as disclosed on the Record. At pages 33-34 thereof, it is recorded that when the prosecuting Counsel applied to tender the four statements of the

Appellant made to the Police/EFCC in evidence, the Appellant’s Counsel stated curtly but explicitly thus:
“DEFENCE COUNSEL: The witness has identified the statement and I have no objection.”

In the absence of any objection of any sort, the four statements written by the accused person himself were promptly admitted in evidence and marked Exhibits A1-A4 respectively. Thus, nowhere in the course of these proceedings did the Appellant or his Counsel raise an objection to the admissibility of the said statements on the ground that they were not voluntarily made.

Instead, it was long after the statements had been admitted in evidence as Exhibits A1-A4 through the PW3, that the Appellant in his evidence-in-chief given during his defence, contended that he was forced to make the confessional statement and so sought to retract the confession on that ground. Evidently, from this scenario and in these circumstances, the voluntariness or otherwise of the Exhibits A1-A4 were never put in issue before their admission into evidence to warrant the conduct of a trial-within-trial. The only obligation on the lower Court was thereafter in its

Judgment to determine the weight to be attached to the Exhibits since the Appellant in his defence sought to retract the confession contained in the Exhibits by contending that it was the PW1 who put him up to it and prompted him to impersonate an EFCC operative and also to extort money from him (PW1). And this the lower Court no doubt did as is evident from pages 63-66 of the Record.

determine the voluntariness or otherwise of a confessional statement. The trial-within-trial is only required where the accused person objects to the admissibility of the confession on the ground that it was not voluntary, but was obtained by threat, intimidation or duress. The objection must be raised at the point when the prosecution seeks to tender the confessional statement in evidence. If the Appellant raises no objection and the confessional statement is admitted in evidence, the issue of a trial-within-trial cannot subsequently arise.
The origin, reasons and incidence of a trial-within-trial were fully considered by the Supreme Court as far back as 1992 in its decision in Gbadamosi V State (1992) NWLR (t. 266) 465. See also FRN V Iweka (2011) LPELR-SC.454/2010 where Mukhtar, JSC observed:
“A trial within trial becomes necessary at the stage where a caution statement is about to be tendered and its admissibility was objected to promptly by the accused person, and not anytime later.”(Emphasis supplied)
Consequently, the purpose of a trial-within-trial is certainly not to determine whether the accused made a statement.

Thus, where an accused person disowns the statement in question, there can be no trial-within-trial. See also the following decisions: Nweneke V State (2019) LPELR-47018 (CA); Ori V State (2017) LPELR-43258(CA) 9-10, C; Igri V State (2009) LPELR-4374 (CA) 37, D-E; Mustapha Mohammed V State (2006) LPELR-7690(CA) 32, B-E; & Okaroh V State (1988)3 NWLR (Pt. 81) 214.
Consequently in the circumstances, contrary to the contention of the Appellant, Exhibits A1-A4 relied upon by the lower Court were not discredited since the Appellant did not object at all to the admissibility of the Exhibits on the basis of voluntariness at the point when they were tendered in evidence. Based on all the above, I again resolve this issue against the Appellant and in favour of the Respondent.

Issue three: Whether the prosecution has proved all the ingredients of the offences to which the Appellant was convicted.

Under this issue, learned Counsel for the Appellant merely adopted his submissions under issues one and two to submit that the Respondent failed to prove the ingredients of the offences charged to warrant a conviction.

On his part, learned Counsel for the

Respondent submits that the burden of proof on the prosecution under Section 138(1) of the Evidence Act, 2011 was discharged by the Respondent. In respect of the offence of impersonating a public servant, he refers to the confessional statement of the Appellant and the circumstantial evidence; while in respect of the offence of obtaining by false pretences, the evidence of PW1, PW2 and PW3 were offered. He contends that the Respondent linked the Appellant to the commission of the offences charged. He also submits that when the oral and documentary evidence are considered in its entirety, all the ingredients of the offences charged were proved by the the Respondent beyond reasonable doubt.

Resolution:
Since the Appellant merely adopted his submissions under issues one and two above to contend that the Respondent failed to prove the ingredients of the offences charged to warrant his conviction, I also adopt my findings under those issues. Suffice it to say that having resolved those issues against the Appellant, this issue must also be resolved against the Appellant having failed to substantiate his mere assertion that the ingredients were not proved.

I find that with the evidence of the PW1, PW2 and PW3 offered in conjunction with the Appellant’s own accounts of the incident as contained in his confessional statements Exhibits A1-A4, the Judgment of the Trial Court convicting the Appellant of the offences charged is well borne out and cannot be impugned.

Issue four: Whether the Trial Court was right in sentencing the Appellant to 6 months imprisonment or fine of N100, 000.00 to be paid to PW1 being the amount deposited in his account for incorporating a company when there is no such offence in the Charge at the trial Court.

Under this issue, learned Counsel for the Appellant submits that the sentence of the Appellant to a term of six months imprisonment or a fine of N100, 000.00 to be paid to the PW1 is not supported by the facts stated in any of the counts of Charge.

In response, learned Counsel for the Respondent submits that by virtue of Section 365 of the Criminal Procedure Code, Cap 42, Laws of Bornu State, 1994, the Lower Court rightly sentenced the Appellant to pay the PW1 the sum of N100, 000.00 as compensation and to the said term of imprisonment in default of payment.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding:

Resolution:
At page 66 of the Record, the Lower Court clearly found the Appellant guilty on both counts of Charge for impersonation and receiving money under false pretences and convicted him accordingly. Thereafter at page 67 thereof, the learned trial Judge, in concluding the sentencing of the Appellant, stated thus:
“The accused person is as well sentenced to 6 months imprisonment or pay the sum of N100, 000 to the PW1 Mamman Alhaji Bukar being the money deposited into his account by false pretence of incorporating a company.”

imprisonment for an offence to which is attached an option of fine. I agree with learned Counsel for the Appellant that no facts in respect of the payment of the sum of N100,000.00 into the Appellant’s account by the PW1 were contained in the two-count Charge. Therefore, the Appellant neither pleaded to that allegation nor was he convicted of same. In addition, nowhere in the proceedings did the Respondent make an application for compensation to be paid to the victim of the crime such that the Appellant would have been heard on the issue of compensation. Consequently, the entitlement to an award for compensation was neither proved nor justified and therefore was unwarranted. For these reasons, I resolve issue four in favour of the Appellant.

Thus, having resolved three out of the four issues against the Appellant, the Appeal succeeds only in part, specifically in respect of issue four on the sentence of six (6) months imprisonment or payment of the sum of N100,000.00 to PW1, Mamman Alahji Bukar. Consequently, I allow the Appeal only in respect of the sentence of six (6) months imprisonment or payment of N100,000.00 to the PW1.

However, I affirm and uphold the Judgment, conviction and sentence of the High Court of Justice, Bornu State delivered on November 29, 2018 by Kumalia, J., to the extent of the conviction and sentence of the Appellant under Section 132 of the Penal Code Law, Cap 102, Laws of Bornu State and Section 1(1)(b) and 1(3) of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006.

MUHAMMED MUSTAPHA, J.C.A.: I had the privilege of reading beforehand the judgment delivered by my learned brother Jummai Hannatu Sankey, JCA PJ. My learned brother eloquently addressed all issue before arriving at an impeccable conclusion, which I now adopt as mine. I will only add that it is clear that the constitutional right of the appellant with regard to Section 36 (6) (c) of the Constitution was not breached, because the trial Court stood down proceedings to enable appellants counsel to appear, and only proceeded to take his plea after it became clear that his counsel was not coming, and in any event, even if the counsel were around, he would not plead on behalf of the appellant. Appellant is the only one who can plead for himself, counsel or no counsel.

Exhibits A1 – A4, the confessional statement of the appellant were admitted without objection from counsel, the belated retraction by the appellant takes nothing away from the said exhibits. The need for a trial within trial to determines voluntariness of the exhibits did not arise, as there was no objection to the admissibility of A1-A4.

JAMES GAMBO ABUNDAGA, J.C.A.: I have had the advantage of reading the draft of the Judgment delivered by my learned brother, Jummai Hannatu Sankey, JCA. His Lordship’s reasoning and conclusion on all the issues formulated by the Appellant and adopted by him are sound and consistent with the facts on record and the due application of the law to the settled facts. The finding of the Trial Court that the charges against the Appellant were proved beyond reasonable doubt accords with a proper evaluation of the evidence on record. Therefore there is no justification to disturb those findings.
Therefore, I too allow the appeal in part as ordered in the lead Judgment of His Lordship.

Appearances:

Adamu Bawa, Esq., holding the brief of B. Grema, Esq. For Appellant(s)

No appearance for Respondent For Respondent(s)