ABDULLAHI v. STATE (2020)

ABDULLAHI v. STATE

(2020)LCN/14705(CA)

In The Court Of Appeal

(KANO JUDICIAL DIVISION)

On Wednesday, October 28, 2020

CA/KN/392/C/2019

RATIO

WORDS AND PHRASES: MEANING OF A YOUNG PERSON

In AHMADU VS. STATE (2014) LPELR – 23974 AT PAGE 41, (CA), this Court held that
“To determine who a young person is Section 2 of the Young Persons Law, Cap. 22 Laws of Jigawa State provides: “Young person” means a person who has attained the age of fourteen years but who has not attained the age of eighteen years”.
In AMAIKE DORIPOLO VS. THE STATE (2012) LPELR – 15415 (CA) AT PAGE 35, this Court per Saulawa J.C.A., relied upon by the Respondent’s counsel, the age is put at seventeen years. But this is as per Section 2 of the Criminal Procedure Law of Lagos State. PER YAHAYA, J.C.A.

INTERPRETATION: EFFECT OF THE USE OF THE WORD “SHALL” IN A LEGISLATION

When the word “shall” is used in a legislation, it generally connotes a mandatory duty. But the word “shall” is capable of more than one meaning. It may mean a compulsion, a mandatory duty which renders action taken in opposition, invalid. It may also imply a permissive command, i.e. a permission to do the act or refrain from so doing, a discretion that may or may not be exercised, without a negative consequence. See A.T LTD. VS. A.D.H LTD. (2007) 15 NWLR (PT. 1056) 118 AT 150. It is therefore clear that the mere use of the word “shall” does not always mean a command. It depends upon the circumstances and the context upon which it is used. There is no hard and fast rule to its meaning. In DOMINIC ONOURAH IFEZUE VS. MBADUGHA & ANR. (1984) S.C 79 on meaning of the word “shall”, Eso J.S.C. at page 135 held that “it is now trite that the word “shall” does not always mean “must”, a matter of compulsion. It could be interpreted, where the context so admits as “may”, whereas “may” is not always “may” it may sometimes be equivalent to “shall”. It is imperative that it is the pursuit of justice, vis-à-vis the intention of the legislature, that must weigh heavily in interpreting the word “shall” in the context in which it is used in a legislation. See also DANGOTE LTD. VS. HASCON (NIG.) LTD. (2013) 16 NWLR (PT. 1379) 60 AT 87. PER YAHAYA, J.C.A.
CONFESSION: REQUIREMENT FOR A CONFESSIONAL STATEMENT TO AMOUNT TO AN ADMISSION OF GUILT

For a confessional statement to amount to an admission of guilt by the defendant, it must be shown to be positive, voluntary, direct and unequivocal concerning the commission of the offence charged – ISA VS. STATE (2016) LPELR – 40011 (SC). By Section 28 of the Evidence Act, a confession is that statement made, orally or in writing, at any time by a person charged with a crime, stating or suggesting the inference that he committed that offence. See SA’IDU VS. STATE (1982) 4 SC 41; JIMOH VS. STATE (2014) LPELR – 22464 AND AKPAN VS. STATE (2001) 15 NWLR (PT. 737) 745. PER YAHAYA, J.C.A.

CONFESSION: TESTS IN DETERMINING THE CREDIBILTY OF CONFESSIONAL STATEMENTS

The Courts have evolved tests to be considered in determining the credibility of confessional statements, before they could be used to convict – (1) is there anything outside the confession to show that it may be true;? (2) has the confessional statement been corroborated in any way? (3) are the relevant statements in it most likely to be true as far as they can be tested;? (4) did the defendant have the opportunity to commit the offence;? (5) was the confession possible;? (6) is the confession consistent with other facts that have been ascertained and established? See MANU GALADIMA VS. STATE (2012) LPELR – 15530 (SC) AT PAGES 20 – 21 AND FABIYI VS. STATE (2015) LPELR – 24834 (SC) AT PAGES 33-34. PER YAHAYA, J.C.A.

Before Our Lordships:

Abubakar Datti Yahaya Justice of the Court of Appeal

Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal

Amina Audi Wambai Justice of the Court of Appeal

Between

ABDULMUMINI ABDULLAHI APPELANT(S)

And

THE STATE RESPONDENT(S)

ABUBAKAR DATTI YAHAYA, J.C.A. (Delivering the Leading Judgment): This appeal is from the Judgment of the High Court of Dutse, Jigawa State delivered on 12th March 2019 in Charge No. JDU/32C/2017, wherein the Appellant as the defendant, was convicted of the offences of rape and incest, contrary to Sections 282 (1)(e) and 390 of the Penal Code respectively. He was then sentenced to ten years and five years imprisonment respectively. The two counts the Appellant was charged with are –

FIRST HEAD OF CHARGE
That you, Abdulmumini Abdullahi, ‘M’, 21 years, of Shuwarin Village, Kiyawa Local Government, Jigawa State on or about the 25th day of January, 2017, at Shuwarin Village, Kiyawa Local Government, within the Jigawa Judicial division, did commit illegal act, in that you had unlawful carnal knowledge of one Sadiya Lawan, ‘F’, 6 years old, of same address, and you thereby committed the offence of Rape contrary to Section 282 (1) (e) of the Penal Code, Cap. P3, Laws of Jigawa State, 2012, and punishable under Section 283 of the Penal Code (Miscellaneous Amendments) Law No. 09, 2014, Laws of Jigawa State.

SECOND HEAD OF CHARGE
That you, Abdulmumini Abdullahi, ‘M’, 21 years, of Shuwarin Village, Kiyawa Local Government, Jigawa State on or about the 25th day of January, 2017, at Shuwarin Village, Kiyawa Local Government, within the Jigawa Judicial division, did commit illegal act, in that you had unlawful carnal knowledge of one Sadiya Lawan, ‘F’, 6 years old, of same address, when you are fully aware that she is the daughter of your brother and you thereby committed the offence of Incest contrary to Section 390 of the Penal Code, Cap. P3, Laws of Jigawa State, 2012, and punishable under same Section of the Law.

In a bid to prove the offences against the Appellant, the Prosecution called six witnesses and tendered four exhibits. The Appellant gave evidence on his behalf and also called four witnesses. His birth certificate was tendered by his mother (DW5) and admitted as Exhibit D1. The facts from the record, show that the mother of the Prosecutrix discovered blood in her pant, whilst she was bathing her. She alerted the father who reported the matter to the police. On investigation the accused person (Appellant) who is the uncle of the

Prosecutrix was arrested, tried and convicted. It is his dissatisfaction with the Judgment that has led to this appeal.

Mr. S. Umar learned counsel for the Appellant settled the brief which was filed on 22nd July 2019. He distilled two issues for determination viz –
1. Considering the age of the Appellant, whether the learned trial Judge was right when he convicted and sentenced the Appellant without adverting his mind to the provisions of the relevant laws that deal with juvenile offenders.
2. Whether the learned trial Judge had properly evaluated the evidence adduced by the parties before convicting and sentencing the Appellant.

The Respondent’s brief was settled by Mr. A. Abdullahi Chief State Counsel, Ministry of Justice Jigawa and it was filed on 30th October 2019. He identified one issue for determination to be – “Whether from the proper evaluation of the evidence before the Court, the learned trial Judge was right in convicting and sentencing the Appellant”.

The issues identified by the Appellant are apt and I shall utilize them in resolving this appeal.

ISSUE NO. 1
“Considering the age of the Appellant,

whether the learned trial Judge was right when he convicted and sentenced the Appellant without adverting his mind to the provisions of the relevant laws that deal with the juvenile offenders”.

In arguing this issue, learned counsel for the Appellant referred to Section 9 of the Juvenile Courts Law, Cap. J35 Laws of Jigawa State 2012, to submit that the trial Judge had jurisdiction to try the Appellant, who was only fourteen and a half years old at the time of committing the offence, since his age only became obvious, during the trial, when Exhibit D1, his birth certificate, was tendered. He however, referred to the proviso to Section 9 which stipulates that when a Court is satisfied with the guilt of the accused in such a situation, then he shall remit the case to the Juvenile Court, to pass sentence. He referred to OGIDI VS. STATE (2005) 1 NCC 163 AT 191 on the mandatory nature of the remittance to the Juvenile Court. He urged us to hold that the trial Court was in grave error, when it sentenced the Appellant, instead of referring him to the Juvenile Court for Sentencing.

Counsel also referred to Section 12 of the Children and Young Persons Law, Cap. C3, Laws of Jigawa State 2012

which provides that a child should not be ordered to be imprisoned and that a young person shall not be imprisoned, if the Court is of the opinion that some other form of punishment such as probation, fine, detention or corporal punishment is available. However, if it is imprisonment that is the appropriate punishment, then he should not be ordered to associate with adult prisoners. Counsel argued that the trial Judge passed the sentences of imprisonment without adverting his mind to the above stated laws and urged us to discharge and acquit the Appellant.

On a very brief response to this issue by learned counsel for the Respondent, it was submitted, that the failure of the trial Judge to advert his mind to the relevant laws in passing the sentences, has not occasioned a miscarriage of justice and should therefore not be disturbed. He referred to Section 382 of the Penal Code, Jigawa State.

Now at paragraph 5.1.5 of the Appellant’s brief, learned counsel clearly submitted that
“…the learned trial Judge acted outside his jurisdiction when he tried, convicted

and went ahead to sentence the Appellant to the various terms of imprisonment…”

However, counsel seems to have changed his mind when after he referred to Section 9(b) of the Juvenile Courts Law Cap. 35 Laws of Jigawa State, 2012, now restricted himself to sentence.

That the Appellant was fourteen and a half years old at the time of the commission of the offence, is not controverted. His birth certificate and the finding of the trial Judge testify to this. There is no appeal against that finding. It is also on record, that the age of the Appellant was only conclusively known and settled, when his mother, DW5 tendered his birth certificate (Exhibit D1) and she was the last witness to give evidence. In AHMADU VS. STATE (2014) LPELR – 23974 AT PAGE 41, (CA), this Court held that
“To determine who a young person is Section 2 of the Young Persons Law, Cap. 22 Laws of Jigawa State provides: “Young person” means a person who has attained the age of fourteen years but who has not attained the age of eighteen years”.
In AMAIKE DORIPOLO VS. THE STATE (2012) LPELR – 15415 (CA) AT PAGE 35, this Court per

Saulawa J.C.A., relied upon by the Respondent’s counsel, the age is put at seventeen years. But this is as per Section 2 of the Criminal Procedure Law of Lagos State.

The Juvenile Court Law for Jigawa State provides the age to be eighteen years. Ordinarily, he would have to be tried at a Juvenile Court.
Section 9 (b) of the Juvenile Courts Law Jigawa State provides that Courts, other than Juvenile Courts shall continue to have jurisdiction to try Juvenile offenders where:
“the age of the Juvenile becomes obvious only during the trial.”
Therefore, there is no doubt, that the trial High Court here, which only ascertained the age of the Appellant to be below eighteen years during the trial, had the jurisdiction to continue and to try the Appellant. Trial includes conviction in this case. It therefore had the jurisdiction to try and convict the Appellant. The bone of contention is its jurisdiction to pass sentence on the Appellant after it convicted him. The Proviso to Section 9(b) of the Juvenile Courts law provides – “Provided that if at the conclusion of the trial, the Court is satisfied with the guilt of the

Juvenile, it shall remit the case to Juvenile Court to pass the appropriate sentence”.
When the word “shall” is used in a legislation, it generally connotes a mandatory duty. But the word “shall” is capable of more than one meaning. It may mean a compulsion, a mandatory duty which renders action taken in opposition, invalid. It may also imply a permissive command, i.e. a permission to do the act or refrain from so doing, a discretion that may or may not be exercised, without a negative consequence. See A.T LTD. VS. A.D.H LTD. (2007) 15 NWLR (PT. 1056) 118 AT 150. It is therefore clear that the mere use of the word “shall” does not always mean a command. It depends upon the circumstances and the context upon which it is used. There is no hard and fast rule to its meaning. In DOMINIC ONOURAH IFEZUE VS. MBADUGHA & ANR. (1984) S.C 79 on meaning of the word “shall”, Eso J.S.C. at page 135 held that “it is now trite that the word “shall” does not always mean “must”, a matter of compulsion. It could be interpreted, where the context so admits as “may”, whereas

“may” is not always “may” it may sometimes be equivalent to “shall”. It is imperative that it is the pursuit of justice, vis-à-vis the intention of the legislature, that must weigh heavily in interpreting the word “shall” in the context in which it is used in a legislation. See also DANGOTE LTD. VS. HASCON (NIG.) LTD. (2013) 16 NWLR (PT. 1379) 60 AT 87.
In the instant appeal, the word in the proviso is “shall”. In my view, it is a word connoting a permissive action only, not a mandatory command. This is because no sanction has been provided in that wise, for the failure to do as permitted. In other words, in the context in which the word “shall” was used in the proviso, the failure to remit the case to a Juvenile Court for sentence to be passed on the guilty party, does not render the act of passing the sentence by the trial Court an invalid act. It certainly cannot be such an invalid act as to result in the discharge and acquittal of the Appellant as submitted by the learned counsel for the Appellant. That will be totally unjust to the society, the victim and the Appellant

himself. That cannot be the intention of the legislature in enacting the proviso and this Court will not toe the path of injustice by interpreting the word against the intention of the legislature. I am strengthened in this view by the provision of Section 12 of the Children and Young Persons Law Jigawa State, which recognizes that a young person can infact be committed to a place of detention or approved institution or ordered to be imprisoned. It is only that if an order of imprisonment is made, then he shall not be allowed so far as is practicable, to associate with adult prisoners (Section 12(3). This further shows that where it is not so practicable, then he will have to associate with adult prisoners. All these go to show that there is a discretion on the part of the Court, to sentence or send a guilty party to a Juvenile Court to be sentenced. It also shows that such a guilty person can be sentenced to a term of imprisonment.

I find it necessary to comment on the conduct of the case by both the Prosecution and the defence at the trial Court. I cannot find where any of the learned counsel in their addresses, drew the attention of the trial Court to

the provision of the Juvenile Courts Law or the Children and Young Persons Law of Jigawa State. This issue appears to have been taken only on appeal. Counsel should have guided the Court at the relevant time, and not wait to see what will happen at the Judgment stage, in order to take up perceived violations.

I do not see justice in the discharge and acquittal of the Appellant simply because he was not sent to a Juvenile Court for sentence, or because he has been imprisoned without an Order directing him not to be associated with adult prisoners. It is also too late in the day to remit the case to the Juvenile Court since a sentence has already been imposed. I note that the Appellant has not appealed against the term of years the Appellant was ordered to serve in prison. I note that the Appellant was fourteen and a half years old at the time of commission of the offence but was sixteen years and nine months at the time of the Judgment of the Court finding him guilty. I note that by the time this appeal was heard, on the 30th of September 2020, the Appellant had clocked the age of eighteen years, three months old, no longer a young person or a juvenile. It

will therefore not be fair to ask that he be kept in an institution where other young or juveniles are kept. It will not be in their interest and will not be a just order. In the premise, I am unable to make any other order, since learned counsel for the Appellant has not prayed for any alternative order, apart from discharging and acquitting the Appellant, as this Court is without jurisdiction to grant reliefs not asked for. Issue No. 1 is resolved in favour of the Respondent and against the Appellant.

ISSUE NO. 2
“Whether the leaned trial Judge had properly evaluated the evidence adduced by the parties before convicting and sentencing the Appellant”.

Learned counsel for the Appellant submitted that the Prosecution has the burden to adduce evidence in proof of its case. The trial Court then has the duty to evaluate the evidence led before making findings. Where it fails to properly evaluate the evidence, then there is a miscarriage of justice –NWALU VS. STATE (2018) ALL FWLR (PT.966) 262 AT 277. Counsel referred to the case of ANYANWU VS. UZOWUAKA (2009) ALL FWLR (PT. 499) 4411, on the factors to be considered by a Court

when evaluating evidence. He then submitted that the trial Court’s finding that the evidence of PW2 had corroborated the unsworn evidence of the prosecutrix, is wrong because the said evidence of PW2 did not implicate the Appellant in any way. He placed reliance on IFARAMOYE VS. STATE (2017) ALL FWLR (PT. 917) 1551. He argued that since Section 209 (3) of the Evidence Act 2011 requires the unsworn evidence of the Prosecutrix to be corroborated, and PW2’s evidence did not so corroborate it, the finding of the trial Judge has caused miscarriage of justice to the Appellant.
In the case of IFARAMOYE VS. STATE (2017) LPELR – 42031 (SC) relied upon by the Appellant, corroboration is said to be evidence that shows or tends to show that the defendant committed the crime, not merely that the crime was committed, but that it was committed by him. Augie J.S.C. who held so, went on at pages 40-41 to state that – “a great deal depends on the circumstances of each case for what may in a given set of circumstances amount to corroboration, may not be so in another set of circumstances.”
It is not necessary, that one witness or a

piece of evidence, must provide all the corroboration needed. Different witnesses or different pieces of evidence may corroborate different aspects of the ingredients of the offence required to be proved, depending upon their opportunities, presence at the scene of crime or expert knowledge. Thus, a medical doctor, may in his professional capacity, corroborate the evidence of a witness that he had been shot with a gun, if he extracted a bullet and saw wounds consistent with a gun shot. He may not know who fired the shot since he was not present, but his evidence will corroborate the fact of shooting and with what kind of bullet. Some other evidence has to show who actually took the shot and when. Similarly, a medical doctor can corroborate the evidence of an unsworn Prosecutrix, that she had been sexually defiled, by examining the genitalia or the hymen to see whether it is still intact or not. If it is not intact, then evidence of sexual assault or activity can be given by the doctor in corroboration. It does not mean that the doctor knew who did it, unless he was present. However, his evidence can corroborate the fact of sexual assault. That is what happened

here and I hold that the evidence of PW2 as rightly found by the trial Judge at pages 84 and 87 of the record, has corroborated the unsworn evidence of the Prosecutrix on the fact of her sexual assault only.

Learned counsel for the Appellant has also conceded that other evidence could corroborate the unsworn evidence of the Prosecutrix. He then referred to the extra-judicial statements of the Appellant, to submit that these could not provide the necessary corroboration because one set – Exhibits P1 and P2 have contracted the contents of the other set- Exhibit P1A and P2B, making it unsafe to rely on them. He submitted that whereas in Exhibits P1 and P2 the date of commission of the offence is given as 26th January 2017, in Exhibits P1A and P2B the date is given as 25th January 2017. He argued that where the Prosecution leads two contradictory evidence in proof of the case, the Court is not permitted to choose and pick which to believe, and so the guilt of the accused would not have been proved – ONWE VS. STATE (2018) ALL FWLR (PT. 924) 1 AT 50. He challenged the reliance of the two sets of exhibits to convict or use them as corroborative

evidence of the unsworn evidence of the prosecutrix. He urged us to resolve the issue in favour of the Appellant.

On this point, learned counsel for the Respondent submitted that the contradiction concerning dates is a mere discrepancy which is not material and not fatal to the case of the prosecution. He referred to GALADIMA VS. STATE without a citation.

Exhibit P1 is the extra-judicial statement of the Appellant made at the State C.I.D office Dutse in Hausa language. Exhibit P2 is its English translation. Exhibit P1A is the extra-judicial statement of the Appellant made at Kiyawa Police Station, Jigawa State in Hausa. Exhibit P2B is its English translation. They are confessional statements. When the Prosecution sought to tender them, the Appellant denied making them. He did not challenge their voluntariness. They were therefore rightly admitted in evidence –EMEKA VS. STATE (2019) 2 SCNJ (PT. 11) 467 AT 486; AREMU VS. STATE (1991) 7 NWLR (PT. 201) 1. It is however desirable to get other evidence to show that the confession is probable – EGBOGHONOME VS. STATE (1993) 7 NWLR (PT. 306) 383.

For a confessional statement to amount to an

admission of guilt by the defendant, it must be shown to be positive, voluntary, direct and unequivocal concerning the commission of the offence charged – ISA VS. STATE (2016) LPELR – 40011 (SC). By Section 28 of the Evidence Act, a confession is that statement made, orally or in writing, at any time by a person charged with a crime, stating or suggesting the inference that he committed that offence. See SA’IDU VS. STATE (1982) 4 SC 41; JIMOH VS. STATE (2014) LPELR – 22464 AND AKPAN VS. STATE (2001) 15 NWLR (PT. 737) 745.

15530 (SC) AT PAGES 20 – 21 AND FABIYI VS. STATE (2015) LPELR – 24834 (SC) AT PAGES 33-34.

The trial Court considered these points before relying on the confessional statement as corroborative evidence and as establishing the offences against the Appellant. The bone of contention raised by the Appellant is the contradiction in the two sets of confessional statements. I have looked at Exhibit P2, the English version of Exhibit P1. It says that the offence was committed on 26th January 2017 at about 1900 hours. Exhibit P2B shows the offence to have been committed on 25th January 2017. For contradiction to render the evidence of the Prosecution unreliable, it must be material to the ingredients of the offence charged. It is thus not every minor contradiction, discrepancy or inaccuracy, in the evidence of the Prosecution witnesses that would be material and weighty enough to be rejected – HARUNA GALADIMA VS. STATE (2017) LPELR – 43469 (SC) per Augie at pages 35 – 36. And JIMOH AWOPEJO VS. STATE (2000) LPELR – 6857 (CA) per Ohnoghen J.C.A. (as then was) at pages 44-46.

Now the ingredients of the offence of rape for which the

Appellant was charged, are – (1) he had sexual intercourse with the Prosecutrix; (2) the act was done in circumstances envisaged in any of the five paragraphs in Section 282 (1) of the Penal Code; (3) the act of intercourse was without her consent. Here being below the age of fourteen years, she was incapable of giving her consent; (4) the Prosecutrix was not his wife; (5) the Appellant had the intention to have sexual intercourse with the Prosecutrix recklessly, not caring whether there was consent or not; and (6) there was penetration. See the case of SHUAIBU ISA VS. KANO STATE (2016) LPELR – 40011 (SC) AT 11-12 AND UPAHAR VS. STATE (2003) 6 NWLR (PT. 816) 230.

Going through the Judgment of the trial Court, it is clear that, these ingredients were found to have been established by the Prosecution beyond reasonable doubt. The date of the commission of the offence is not stricto sensu, an ingredient of the offence enumerated. I accept that the date of commission of an offence is important, since that is what the charge entails. However, evidence abounds that it was both the PW4 and PW5 that recorded the confessional statements of the Appellant. He

was not the one who recorded same. It is possible that human error is responsible or damn right carelessness. I hope it is not even something more sinister. The fact remains that the Appellant had confessed to having sexual intercourse with the Prosecutrix. Whether she initiated it or not is not material since she was below the consent age. It is shown to have happened in his shop at about 1900 hours. Medical evidence had established that her hymen had been broken and the place tender, indicating that she had been tampered sexually. The confessional statements are in line with the evidence of the Prosecutrix, who is the niece of the Appellant. All these have been established in both confessional statements. The difference in dates, in the peculiar circumstances of this case, could not be material or fatal. It has not affected or destroyed any of the ingredients of the offence in any substance. It was a minor error, a mistake in recording the dates, especially as they were by two different persons, in two different places. The trial Judge was well within his power, to consider them a minor discrepancy and give them full probative value. It is not at all a

question of picking one over the other. Both are credible. In the premise, the confessional statements have corroborated the testimony of the Prosecutrix and have proved the ingredients of the two offences the Appellant was charged and convicted for. Issue No. 2 is thus resolved in favour of the Respondent and against the Appellant.

This appeal is adjudged without any merit and it is dismissed. I affirm the conviction and sentence of the Appellant as contained in the Judgment of the trial Court delivered on 12th March 2019 in Charge No. JDU/32C/2017.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, ABUBAKAR DATTI YAHAYA, J.C.A. His Lordship has ably considered and resolved all the issues in contention in the appeal. I agree with the reasoning and abide the conclusions reached therein.

I only wish to make an additional comment with regards to the first issue for determination of the Counsel to the Appellant in the appeal – Considering the age of the Appellant, whether the learned trial Judge was right when he convicted and sentenced the Appellant

without adverting his mind to the provisions of the relevant laws that deal with juvenile offenders? The merit of the arguments of the Counsel to the Appellant on the issue has been beautifully and comprehensively dealt with in the lead judgment. I just consider it pertinent to point out for the records that the issue of the age of the Appellant and the applicability of the relevant laws that deal with juvenile offences were not raised and canvassed before the lower Court and the lower Court did not pronounce on it.

It is trite law that an appellate Court determines the disputes of parties and arrives at the conclusion basically on the printed record of what transpired at the lower Court. An appellant therefore is only entitled to contest the judgment of a trial Court on the issues properly raised before the lower Court and pronounced upon by that Court. An appellant cannot contest an appeal on an issue not raised in the lower Court and he cannot set up a new case on appeal: he must be consistent in stating his case – Iliyasu vs State (2014) 15 NWLR (Pt 1430) 245, Aiyeola Vs Pedro (2014) 13 NWLR (Pt 1424) 409, Ekweozor Vs Registered Trustees of Saviour’s Apostolic Church of Nigeria (2020) LPELR 49568(SC).

This point was succinctly made by the Supreme Court in the case ofIdufueko Vs Pfizer Products Ltd (2014) 12 NWLR (Pt 1420) 96 at 122 thus: “It is trite law that an issue which is not raised, argued and pronounced upon by a trial Court, cannot be validly raised as a ground of appeal or as issue for determination before the appellate Court, as such issue or argument made thereon are not competent and therefore go to no issue.”

The option opened to a party who desires to raise on appeal an issue that was not canvassed before the lower Court is to seek leave of this Court to do so. Where no leave is sought and the issue is raised by the party, the issue will be incompetent and this Court will have no jurisdiction to entertain same -Abdullahi Vs Bani (2014) 17 NWLR (Pt 1435) 1, Saliu Vs State (2018) LPELR 44064(SC), Awusa vs Nigerian Army (2018) LPELR “377(SC), Ibrahim vs All Progressives Congress (2019) LPELR 48995(SC). There is nothing on the records showing that the Appellant sought for and obtained the leave of Court to raise the issue in this appeal.

The only possible exception to

this position of the law is perhaps where the issue so raised is one of jurisdiction because there are case law authorities that suggest that an issue of jurisdiction can be raised and taken at any stage of the proceedings in a matter and even on appeal for the first time, without leave of Court – see for example, Cotecna International Ltd Vs Ivory Merchant Bank Ltd (2006) 9 NWLR (Pt.985) 275, Mozie Vs Mbamalu (2006) 15 NWLR (Pt 1003) 1466 and Nigerian National Petroleum Corporation vs Orhiowasele (2013) 13 NWLR (Pt 1371) 211.
But even here, the exception is not open ended because it is only an issue of substantive jurisdiction of a lower Court that can be raised. and which if resolved against a party renders the entire proceedings a nullity, not matters of procedural irregularity. Matters of procedural irregularity must be raised by a party in the lower Court, otherwise he will be foreclosed from raising it again – Kwaa Vs Kwakwa 3 WACA 176, Odu’a Investment Co. Ltd vs Talabi (1997) 10 NWLR (Pt 523) 1, Mobil Producing (Nig) Unlimited vs Lagos State Environmental Protection Agency (2002) 18 NWLR (Pt 798) 1, F & F Farms (Nig) Ltd Vs Nigeria National Petroleum Corporation (2009) 12 NWLR (Pt 1155) 387.

Nagogo Vs Congress for Progressive Change (2013) 2 NWLR (Pt 1339) 448. Udo Vs The Registered Trustees of the Brotherhood of the Cross & Star (2013) 14 NWLR (Pt 1375) 488.

Counsel to the Appellant conceded that the lower Court had jurisdiction to hear and determine the charge against the Appellant. The complaint was whether the lower Court should have sentenced the Appellant or referred the matter to the Juvenile Court for the sentencing after finding the Appellant guilty and convicting him of the offence charged in view of the provision of Section 9(b) of the Juvenile Courts Law of Jigawa State. This is a complaint on the procedure for sentencing the Appellant and not one of substantive jurisdiction. Having failed to raise and argue the point in the lower Court. the Appellant could not raise same in this Court without leave of Court. As stated earlier, no such leave was obtained.

I agree with the lead judgment that this appeal lacks merit and I too hereby dismiss same. I affirm the judgment of the High Court of Jigawa State delivered on the 12th of March. 2019 in Charge No JDU/32C/2017 by

Honorable Justice Ubale Ahmed Taura as well as the sentences passed on the Appellant therein.

AMINA AUDI WAMBAI, J.C.A.: I have read the lead judgment delivered by my learned brother, ABUBAKAR DATTI YAHAYA, J.C.A. I agree with his reasoning and conclusion that there is no merit in this appeal. I too dismiss the appeal and affirm both the conviction and sentence of the Appellant by the lower Court since there was no appeal against the sentence. The judgment of the lower Court delivered on 12/03/2019 in Charge No. JDU/32C/2017 is hereby affirmed.

Appearances:

Saleh Umar Esq., with him, B. T. Mwoltu and T. A. Abubakar For Appellant(s)

Aliyu Abdullahi ADCL Ministry of Justice, Jigawa with him, Aliyu Hassan PSC For Respondent(s)