ETIM v. STATE (2020)

ETIM v. STATE

(2020)LCN/14671(CA)

In The Court Of Appeal

(CALABAR JUDICIAL DIVISION)

On Wednesday, October 28, 2020

CA/C/195C/2018

RATIO

EVIDENCE: WAYS OF PROVING THE GUILT OF AN ACCUSED PERSON

By virtue of the provision of Section 135 of the Evidence Act, 2011 there are three ways or methods of proving the guilt of an accused person. These three methods of evidential proof are:-
(a) By direct evidence of witnesses, or
(b) By circumstantial evidence or
(c) By reliance or a confessional statement of an accused person voluntarily made.
See STEPHEN V. STATE (2013) 8 NWLR (prt 1355) 153 OGUONZE V. STATE (1998) 5 NWLR (prt 551) 521, EMEKA V. STATE (2001) 14 NWLR (prt. 734) 666 and ADIO V. STATE (1986)2 NWLR (prt 24) 581. PER SHUAIBU, J.C.A.

CRIMINAL LAW: CIRCUMSTANCES A PERSON WILL BE SAID TO HAVE UNLAWFULLY KILLED ANOTHER

The provisions of Section 323 (1) of the Criminal Code Cap. 38 Vol. 2 Laws of Akwa Ibom State, 2000 provides that:-
“Section 323 (1): Except as herein set forth a person who unlawfully kills another under any of the following circumstances that is to say –
(a) If the offender intends to cause the death of the person killed, or that of some other person;
(b) If the offender intends to do to the person killed or to some other person grievous harm;
(c) If death is caused by means of an act done in prosecution of an unlawful purpose which act is of such nature as to be likely to endanger human life;
(d) If the offender intends to do grievous harm to some person for the purpose of facilitating the commission of an offence which is such that the offender may be arrested without warrant or for the purpose of facilitating the flight of an offender who has committed or attempted to commit any such offence;
(e) If death is caused by administering any stupefying or overpowering things, of either of the purposes last aforesaid;
(f) If death is caused by willfully stopping the breath of any person for either of such purposes; is guilty of murder”.
It was held in plethora of judicial decisions that the intention to kill or to cause grievous bodily harm, which resulted in death is sufficient to establish the offence of murder. See GWOJILIRE V. STATE (1965) NWLR 52 and BAKARE V. STATE (1987) 1 NWLR (prt 52) 579.

In RICHARD V. STATE (2018) 18 NWLR (prt 1651) 244 at 238, 239 and 245 it was held that intent can be proved either positively where there is proof of the declared intent of the accused person or inferentially from the overt act by the accused. Thus, an accused is taken to intend the consequences of his voluntary act, when he foresees that it will probably happen, whether he desires it or not. PER SHUAIBU, J.C.A.

CRIMINAL LAW: REQUIREMENT FOR THE PROSECUTION TO PROVE THE OFFENCE OF ILLEGAL POSSESSION OF FIREARMS

In order to prove the offence of illegal possession of Firearms the law requires the prosecution to establish the following ingredients:-
(a) That the accused was found in possession of Firearms;
(b) That the Firearms were Firearms within the meaning of the Act, and
(c) That the accused had no license to possess the Firearm. PER SHUAIBU, J.C.A.
EVIDENCE: STRONGEST EVIDENCE IN LAW

the law is settled that there is no evidence stronger than a person’s own admission or confession. See USMAN V. STATE (2011)3 NWLR (prt 1233)1. PER SHUAIBU, J.C.A.

DEFENCES: DUTY OF COURT TO CONSIDER ALL POSSIBLE DEFENCES

It is trite that it is the duty of Court to consider all possible defences open to an accused person on the evidence before the Court or even from his statement to the police notwithstanding the fact that such defences were not specifically raised by the accused person or his counsel. In other words, such defences ought to be fully considered no matter how stupid they may seem. See LAOYE V. STATE (1985) 2 NWLR (prt 10) 832, and NWANKWOALA V. STATE (supra). PER SHUAIBU, J.C.A.

Before Our Lordships:

Mojeed Adekunle Owoade Justice of the Court of Appeal

Hamma Akawu Barka Justice of the Court of Appeal

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Between

DE YOUNG OKON ETIM APPELANT(S)

And

THE STATE RESPONDENT(S)

MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Akwa Ibom State sitting at Uyo delivered on 26th of February, 2018 wherein the appellant was found guilty and sentenced to death by hanging and also to imprisonment for 10 years or to a fine of N20,000.00.

The appellant was arraigned before the lower Court on two count charge of murder and illegal possession of Firearms contrary to Sections 326(1) of the Criminal Code, Cap. 38, Vol. 2 Laws of Akwa Ibom State of Nigeria 2000 and Section 3 of the Robbery and Firearms (Special Provisions) Act, Cap. R11 Vol.14, Laws of the Federation of Nigeria, 2004.

The prosecution called two witnesses and tendered several exhibits marked A – B-B3, C, and D-D1 respectively. The appellant testified in his defence and called no other witness.

At the end of the trial and in a reserved and considered judgment delivered on 25/2/2018, the appellant was convicted for murder and illegal possession of firearms as charged.

Being dissatisfied with the above decision of the trial Court, the appellant filed two separate notices of appeal

respectively filed on 23/3/2018 and 17/4/2018. The latest notice of appeal contains four (4) grounds of appeal at pages 117 – 119 of the record of appeal.

The appellant filed his brief of argument on 24/7/2018 but deemed as properly filed on 9/9/2020. The appellant also filed a reply brief on 18/3/2020 which was consequently deemed on 9/9/2020. In the said appellant’s brief of argument two issues are formulated for the determination of the appeal as follows:-
1. Whether based on the alleged confessional statement of the appellant as set out at pages 19 to 20, 100 to 101 of the record of appeal and other evidence on record and relied upon by the trial judge there exist any defence available to the appellant to enable the trial judge mitigate the conviction and sentence imposed on the appellant?
2. Whether the conviction of the appellant to death by hanging in the light of the totality of evidence on record ought to be allowed to stand?

On its part, the respondent also formulated two issues thus:
1. Whether the prosecution has proved the two count charge of murder and illegal possession of Firearms against the appellant

beyond reasonable doubt.
2. Whether in the circumstances of the case there exist any defence that can avail the appellant to mitigate the punishment imposed on the appellant.

A careful perusal of the above two sets of issues reveals that they are seemingly the same though couched differently. However, the two issues formulated by the respondent are concise and quite apposite. I shall therefore determine this appeal on the basis of the two issues formulated by the respondent.

The brief fact of the case as could be gathered from the record of appeal is that the appellant, the deceased and one Godwin Sunday Jackson were security guards for different houses in White Bombom Street Uyo Local Government Area of Akwa Ibom State. Prior to the incident that led to this appeal, the said Godwin Sunday Jackson went to the house where the appellant was guarding and picked a file used for sharpening machete.

The appellant then found Godwin Sunday Jackson with the file, he confronted him and the latter promised to return it but reneged in his promise to return the file. In retaliation, appellant seized a polythene bag containing food items belonging to

Godwin who was then returning home from the market.

On 15th day of November, 2015, the said Godwin Sunday Jackson again went to where the appellant was guarding to collect his polythene bag but in the process fighting ensued, wherein the appellant brought out a locally made pistol and shot at Godwin Sunday Jackson but missed his target and instead, the shot killed the deceased, Akwaowo John Umoh.

CONSIDERATION AND RESOLUTION
Arguing issues I and II together, learned counsel for the appellant submits that from the record of appeal particularly the police findings, there is ample evidence that appellant ought to be entitled to the defence of self defence and/or provocation and or a defence of mistake which ought to mitigate the sentence imposed on the appellant. He contend that the alleged confessional statement shows that the appellant’s apprehensive of fear of death or danger to his life by Godwin Sunday Jackson who came to his place of work to attack him and also made attempt on his life in the process of defending himself, shot the said Godwin Sunday Jackson in the heat of passion but the pellets inadvertently killed Akwaowo, the

deceased who attempted to intervene. He thus submitted that the defence of self defence and or provocation or mistake can be inferred from the appellant’s confessional statement. He referred to EMEJE V POSITIVE (2010)1 NWLR to contend that when a document is admitted in evidence, the Court cannot disregard it.

Still in argument, learned counsel made copious reference to Section 294(1) of the Criminal Code Law of Akwa Ibom Cap. 38 2000 and Criminal Law in Nigeria second edition by Messrs Okonkwo and Naish to submit that when a person is unlawfully assaulted and has not provoked assault, it is lawful for him to use such force to the assailant as is reasonably necessary to make effectual defence against the assault. And if while acting in reasonable self defence, the accused accidentally or mistakenly kills a person other than the assailant, the homicide is excusable. The firing at Godwin Sunday Jackson by the appellant who found himself face to face with person who intended to kill him according to the learned counsel is permitted by law and that had the trial judge properly evaluated the conditions of self defence, he would have come to the

conclusion that the defence of self defence was available to the appellant.

The appellant’s counsel further submits that both the prosecution and the trial judge having relied on the confessional statement of the appellant as the authentic state of events that transpired are bound by its content because a party cannot take benefit of a document only to turn around and impugn the potency or contradict or discredit same. He referred to A.G. BENDEL STATE V. U.B.A. LTD (1986)4 NWLR (prt. 37) 547.

Assuming but not conceding the fact that the defence of self defence is unavailable to the appellant, learned counsel submits that upon evaluation of the appellant’s confessional statement and other pieces of evidence, the defence of provocation is available to the appellant to mitigate the sentence pronounced by the trial Court. Also having regard to the peculiar facts and circumstances of this case, the fact of provocation, loss of self control actual and reasonable and the act of retaliation or reaction of the appellant; were proportionate to mitigate the sentence imposed on the appellant. Counsel submits that the trial judge having not

comprehensively evaluated the appellant’s confessional statement in Exhibit “D” in juxtaposition with possible defences, including self defence, mistake and other possible defences before convicting the appellant has occasioned a serious miscarriage of justice. He urged this Court to invoke its powers under Section 16 of the Court of Appeal Act in evaluating the appellant’s confessional statement Exhibit “D” as well as the report of findings in the police investigation report in allowing the appeal.

Learned counsel for the respondent on issue 1 contended that the prosecution had successfully proved its case beyond reasonable doubt through the confessional statements Exhibits “A” and “D”. Counsel submits that the said confessional statements of the appellant established the ingredients of both the offences of murder and illegal possession of Firearms. He referred to the cases of AMACHREE V. NIGERIAN ARMY (2003)3 NWLR (prt 807) 256 and ITU V. THE STATE (2016) 260 LRCN 157 at 179 on the essential ingredients for the offences of murder and the case of OKASHETU V. THE STATE on the essential

ingredients for establishing the offence of illegal possession of Firearms.

Learned counsel submits further that the confessional statements of the appellant in Exhibits “A” and “D” was sufficiently corroborated by the evidence of pw1 and pw2 together with the medical report Exhibit “B” and the locally made pistol, Exhibit “C” .

On the allegation of non evaluation of the evidence adduced at the trial, the respondent contend that it is the primary function of the trial Court to evaluate the evidence before it and ascribe probative value to such evidence having seen, heard and assessed them as they testified. Counsel submits that the trial Court painstakingly evaluated the confessional statements and in doing so, applied the principles enunciated in R V. SYKES (1913) 8 C.A.R 233 – 236. Thus, the findings and conclusion reached by the trial Court are supported by credible evidence as such there is no basis for interference by this Court. Reliance was placed on ALI V. THE STATE (2015) 10 NWLR (prt 1466), and IKO V. THE STATE (2001)14 NWLR (prt 732) 221.

On issue II the respondent contend that the

appellant anchoring on the existence of the defences of provocation, self defence or mistake presupposes that the appellant committed the offence of murder charged but that he acted in self defence, provocation or by mistake. Specifically on the defence of provocation, learned respondent’s counsel submits, that a condition for the successful defence of provocation is that the person raising it must of necessity admit the commission of the offence charged before proceeding to explain the circumstances in which it was committed and contending the circumstances in which the offence shall be mitigated. He referred to NJOKWU V. STATE (2014) 9 NCC 137 at 138. Counsel submits further that it is not the duty of Court to invent a defence for an accused but same must be based or founded on material pieces of evidence from the record. He referred to SHANDE V. STATE (2005) 1 NWLR (prt 939) 301 and NWANKWOALA V. STATE (2006) 14 NWLR (prt 1000) 663.

On the defence of self defence, the respondent contends that for an accused person to be availed by a plea of self-defence, the following conditions must coexist:
(a) The accused must be free from fault in

bringing about the encounter,
(b) There must be present an impending peril to life or of great bodily harm, either real or so apparent as to create honest belief of an existing necessity;
(c) There must be no safe or reasonable mode of escape by retreat, and
(d) There must have been necessity for taking life.
He referred to JEREMIAH V. STATE (2012) 14 NWLR (prt. 1320) 248.

He submits that Exhibits “A” and “D” revealed that there was no impending threat to life of the appellant and that there was safe mode of escape by the appellant when the deceased separated the appellant and Godwin Sunday Jackson. The evidence shows that appellant was determined to kill Godwin for daring to attack him with knife. Hence, there was no justification of firing the shot and therefore the defence of self-defence does not avail the appellant concluded, learned respondent’s counsel.

In response to the appellant’s reliance on the police investigation report to buttress entitlement to the defence of self-defence, the respondent contend that the said report was not tendered in the course of the trial and neither the Court

nor any of the parties is allowed to act on any document not tendered and admitted in evidence before the Court. He referred to WASSAH V. KARA (2015) ALL FWLR (prt 769)1034 at 1062 to the effect that no Court is allowed to go outside the gamut of evidence before it to shop for materials upon which to use same to decide a case before it. Thus, there is no inference of any defence from Exhibits “A” and “D” that can avail the appellant and that the trial Court had unquestionably evaluated the evidence and exhaustively appraised the facts before arriving at its judgment.

In his reply brief, learned counsel for the appellant submits that while there is no duty on the Court to unearth any defences in order to make a finding on it, it is however the duty of the Court to consider all defences implicit in the evidence though not specifically raised. He referred to NJOKU V. STATE (1993) 7 SCNJ (prt. 1) 36 at 41.

witnesses, or
(b) By circumstantial evidence or
(c) By reliance or a confessional statement of an accused person voluntarily made.
See STEPHEN V. STATE (2013) 8 NWLR (prt 1355) 153 OGUONZE V. STATE (1998) 5 NWLR (prt 551) 521, EMEKA V. STATE (2001) 14 NWLR (prt. 734) 666 and ADIO V. STATE (1986)2 NWLR (prt 24) 581.

The prosecution at the trial relied heavily on the appellant’s confessional statements, Exhibits “A” and “D” and to some extent, the evidence of pw1 who testified that the defendant (now appellant) led him to recover the weapon used in committing the offence of murder.

I have stated that the appellant was arraigned, tried, convicted and sentenced for the murder of the deceased Akwaowo John Umoh and also for illegal possession of Firearm with which the appellant used in killing the deceased. The provisions of Section 323 (1) of the Criminal Code Cap. 38 Vol. 2 Laws of Akwa Ibom State, 2000 provides that:-
“Section 323 (1): Except as herein set forth a person who unlawfully kills another under any of the following circumstances that is to say –
(a) If the offender intends to

cause the death of the person killed, or that of some other person;
(b) If the offender intends to do to the person killed or to some other person grievous harm;
(c) If death is caused by means of an act done in prosecution of an unlawful purpose which act is of such nature as to be likely to endanger human life;
(d) If the offender intends to do grievous harm to some person for the purpose of facilitating the commission of an offence which is such that the offender may be arrested without warrant or for the purpose of facilitating the flight of an offender who has committed or attempted to commit any such offence;
(e) If death is caused by administering any stupefying or overpowering things, of either of the purposes last aforesaid;
(f) If death is caused by willfully stopping the breath of any person for either of such purposes; is guilty of murder”.
It was held in plethora of judicial decisions that the intention to kill or to cause grievous bodily harm, which resulted in death is sufficient to establish the offence of murder. See GWOJILIRE V. STATE (1965) NWLR 52 and BAKARE V. STATE (1987) 1 NWLR (prt 52) 579.

In the instant case, the death of Akaowu John Umoh was not in any doubt as the findings of the lower Court showed that the deceased died and that the death of the deceased resulted from the act of the appellant. What is however discernible from the learned appellant’s counsel submission is that the appellants apprehensive or fear of death or danger to his life by Godwin Sunday Jackson, compelled him to shot at him but the pellets inadvertently killed the deceased who albeit attempted to intervene. In other words, the appellant was not denying the fact that his action resulted in the killing of the deceased but same was precipited by provocation and or through self-defence and or accident. I will in due course, consider whether the said defences

availed the appellant and whether or not the lower Court had adequately considered them in its judgment but the critical issue is that the findings of the lower Court which the appellant is not contesting shows that all the ingredients of the offence of murder were proved.

The appellant was also tried and convicted for being in possession of Firearm, albeit illegally. In order to prove the offence of illegal possession of Firearms the law requires the prosecution to establish the following ingredients:-
(a) That the accused was found in possession of Firearms;
(b) That the Firearms were Firearms within the meaning of the Act, and
(c) That the accused had no license to possess the Firearm.
In the instant case, there was evidence on record which the lower Court believed that the appellant fired Exhibit C and the deceased died from gunshot injuries on account thereof.
By virtue of Section 11(1) of the Robbery and Firearms (Special Provision) Act Cap. R11 Vol.14 Laws of the Federation of Nigeria, 2004, ”Firearms” is defined to include “any canon gun, riffle, carbine, machine – gun, cap gun, flint- lock gun, recover,

pistol, explosive or ammunition or other firearms, whether whole or in detached pieces. There was no dispute that Exhibit C falls within the category of the aforementioned Firearms. In both Exhibits “A” and “D”, the appellant admitted using locally made pistol and the law is settled that there is no evidence stronger than a person’s own admission or confession. See USMAN V. STATE (2011)3 NWLR (prt 1233)1.

Having arrived at the conclusion that the respondent had proved the two count charge of murder and illegal possession of Firearms against the appellant within the context of Section 323 (1) of the Criminal Code, Cap. 38 Vol.2, Laws of Akwa Ibom State, 2000 and Section 3 of the Robbery and Firearms (Special Provision) Act, Cap R 11 Vol. 14 Laws of the Federation of Nigeria, 2004, the next germane question is whether the appellant was entitled to the defences of provocation, self-defence and or accident.

were not specifically raised by the accused person or his counsel. In other words, such defences ought to be fully considered no matter how stupid they may seem. See LAOYE V. STATE (1985) 2 NWLR (prt 10) 832, and NWANKWOALA V. STATE (supra).

Before considering whether the appellant raise any defence at his trial and or whether the lower Court has considered any possible defences open to him, let me first of all consider these defences as well as their constituent elements.

Provocation is defined as something such as words or actions that affect a person’s reason and self control, especially causing the person to commit a crime impulsively. See AHUNGUR V. STATE (2019)2 NWLR (prt 1657) 393. The defence of provocation is made up of some elements which must be present before the defence can be taken seriously and these are:-
(a) The act must be grave and sudden,
(b) Loss of control both actual and reasonable, and
(c) The act must be done before there is time for passion to cool.
See BIRUWA V. STATE (1992)1 NWLR (prt 220) 633.
The defence of provocation if properly established and taken has the effect of reducing the crime

of murder to manslaughter. See MUSA V. STATE (2009) LPELR – 1930 (SC).

In the instant case, there is no evidence that the deceased provoked the appellant and that the alleged provocation was made by Godwin Sunday Jackson. The question here is did the provocative act deprive him of self control and was it instantaneous with no time to cool down? The answer in my view is in the negative because the appellant was able to recall that Godwin Sunday Jackson had threatened that someone amongst the two of them was going to die and as a result of which he ran inside and got his locally made pistol, pursued Godwin and fired shot, though intended to kill Godwin and not the deceased. A defence of provocation will not avail an accused person if there is evidence that there was a recess or a possible recess in the mind of the accused person to cool. Similarly, defence of provocation will not avail an accused if there is evidence of organized or premedited vendetta. See KAZA V STATE (2008)7 NWLR (prt 1058) 125.

Self defence on the other hand is a protection of one’s person or property against some injury attempted by another. The

defence of self-defence can only avail an accused person if he proves that he was a victim of an attack which causes him reasonable apprehension of death or grievous harm, and even then, the accused is only allowed by law, to use such reasonable force to defend himself or repel the attack to himself from the danger and he is entitled to it even though such force may cause death or grievous harm. However, if the act of self-defence is committed after all the danger or threat from the assailant is past and it is by way of vengeance then the defence, would not avail the accused. Therefore, the ingredients of self defence are as follows:-
(a) The accused must be free from fault in bringing about the encounter;
(b) There must be present and impending peril to life or of great bodily harm either real or so apparent as to create honest belief of an existing necessity;
(c) There must be no safe or reasonable mode of escape by retreat, and
(d) There must have been a necessity for taking life.
In order to sustain the defence of self-defence, the above ingredient must co-exist and be established. See KWAGHSHIR V. STATE (1995)3 NWLR (PRT 386)

651, LIYA V. STATE (1998) 2 NWLR (prt 538) 397 and OMOREGIE V. STATE (2008) 18 NWLR (prt 1119) 464.
In the instant case, there is evidence that the appellant was determined to cut Godwin Sunday Jackson to sizes for daring to attack him with knife and there was no clear evidence that it was absolutely necessary for the appellant to fire the gun that eventually killed the deceased instantaneously. Thus, the findings of the lower Court to the effect that there was no evidence that there was no safe or reasonable mode of escape by retreat open to the appellant is unassailable. This is particularly so because the defence of self defence that will have any impact on a case to favour an accused person must be such that the action taken by the accused was unavoidable. See OMOREGIE V. STATE (Supra).

Finally, an accident is something which happened outside the ordinarily course of events. Thus, an effect is accidental when the act by which it is caused is not done with the intention of causing it and when its occurrence is so unexpected that a person of ordinary prudence would not be expected to take precaution against such occurrence.

The ingredients of the defence of accident are:-
(a) That act was done by accident;
(b) That there was no criminal intention or knowledge, and
(c) That the act was done in the course of doing a lawful act in a lawful manner by a lawful means and with proper care and caution.
The burden of establishing a defence of accident is on an accused. In other words, to assert accident as a legal defence, the burden is on the accused to prove that he acted with no criminal intent or culpable negligence. That being the position, an accused person cannot take refuge under the defence of accident for a deliberate act even if he did not intend the eventual result. See EJIDE V. STATE (2019)14 NWLR (prt 1692) 246 and ADEGBOYE V. STATE (2017) 16 NWLR (prt 1591) 248 at 285.

In the instant case, the appellant in his oral evidence denied responsibility for causing the death of the deceased and therefore failed to establish the necessary pre-requisite that is, admitting the act and then setting up the defence that the act occurred accidentally.

Now turning back to the question as to whether the lower Court has availed the appellant all the foreseeable defences, the

evidence before the lower Court reveals that the conduct of the appellant that resulted in the death of the deceased was reckless and devoid of proper care and caution. The lower Court was emphatic that none of the defences was disclosed upon the evidence adduced at the trial but nonetheless it properly set them out and dispassionately considered both the defences of provocation, self defence and accident in its judgment. I have also considered all the defences open to the appellant and agreed completely with the learned trial judge when he held at page 106 of the record of appeal thus:-
“In the light of the fore-going, I hold that none of the disclosed defences upon the evidence before this Court can avail the defendant in this case. I cannot see any extenuating circumstances to make me reduce this case from murder to manslaughter. I hold that the killing of the deceased in the circumstances of this case was unauthorized, unjustified and inexcusable in law.”

In all, the two issues are resolved against the appellant. The appeal is moribund and lacking in merit. The judgment of the lower Court is hereby affirmed and the appeal is

accordingly dismissed.

MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother, Muhammed L. Shuaibu, JCA.
My learned brother has painstakingly considered the two issues nominated for the determination of the appeal.

In so doing, my learned brother rightly opined that the “lower Court was emphatic that none of the defences was disclosed upon the evidence adduced at the trial but nonetheless it properly set them out and dispassionately considered both the defences of provocation, self defence and accident in its judgment”.

I agree with the reasoning and conclusion in the lead judgment. I also dismiss the appeal and affirm the judgment of the Court below.

HAMMA AKAWU BARKA, J.C.A.: Having also studied the record of proceedings and the briefs filed, I wholly agree with the reasoning and the conclusion reached in the lead judgment.
I also see no merit in the appeal and thereby dismiss the same.

Appearances:

G. O. TAMUNO For Appellant(s)

MRS. UDUAK EYO NSA, (SOLICITOR GENERAL AKS) For Respondent(s)