PILLAH v. FRN & ANOR (2020)

PILLAH v. FRN & ANOR

(2020)LCN/15206(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Monday, March 16, 2020

CA/A/401C/2019

Before Our Lordships:

Abdu Aboki Justice of the Court of Appeal

Emmanuel Akomaye Agim Justice of the Court of Appeal

Mohammed Baba Idris Justice of the Court of Appeal

Between

PATRICK PILLAH APPELANT(S)

And

1. FEDERAL REPUBLIC OF NIGERIA 2. LUGARD EDEGBE RESPONDENT(S)

RATIO

INGREDIENTS OF THE OFFENCE OF CONSPIRACY

The Trial Court in its judgment correctly restated the law on the ingredients of the offence of conspiracy thusly- “Thus, for the offence of criminal conspiracy pursuant to Section 96 of the Penal Code applicable in the Federal Capital Territory, Abuja to be proved by the prosecution, the ingredients of criminal conspiracy was aptly stated in the case of ADESINA KAYODE V THE STATE, 2016 LPELR 40028, the Supreme Court stated:-
“It is settled law that the essential ingredients of the offence of conspiracy lies in the bare agreement and association to carry out an unlawful act, which is contrary to or forbidden by law, whether that act be criminal or not and of course whether or not the accused persons had knowledge of its unlawfulness.”
See also IKECHUKWU OKON V. THE STATE (2014) CLARK V. THE STATE (1986) 4 NWLR (pt. 35) page 381. Also by Section 97(1) of the Penal Code, the ingredients of the offence of criminal conspiracy are:-
(a) An agreement between two or more persons to do an illegal act or an act which is not illegal by illegal means;
(b) The illegal act must be done in furtherance of the agreement and participation by each of the accused person in the conspiracy.
See ABU ISAH & ANOR V. THE STATE, (2007) LPELR 3575 (CA).” PER AGIM, J.C.A.

WHETHER OR NOT IT IS EVERY ERROR OF A COURT IN PROCEEDINGS THAT WILL VITIATE THE PROCEEDINGS OR ITS JUDGEMENT

It is not every error of a Court in proceedings before it that would vitiate the proceedings or its judgment. It is only the errors that caused a miscarriage of justice that would vitiate the proceedings or judgment of the court. Equally, a successful ground of appeal can only result in the appeal being allowed, if the error complained of in the ground caused a miscarriage of justice in the sense that the judgment would have been different but not for the error. See Olonade v. Sowemimo (2014) 14 NWLR (Pt. 1428) 472 SC. PER AGIM, J.C.A.

EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment): This appeal No. CA/A/401C/2019 was commenced on 12-12-2018 when the appellant herein filed a notice of appeal against the judgment of the High Court of the Federal Capital Territory, at Abuja in Charge No. FCT/HC/CR/43/12 delivered on 10-12-2018 by D.Z. Senchi J. The notice of appeal contains 7 grounds of appeal. The appellant herein on 4-3-2019 filed a second notice of appeal containing 15 grounds of appeal.

The appellant and 1st respondent filed, exchanged and adopted the following brief – appellant’s brief, 1st respondent brief and appellant’s reply brief. The 2nd respondent chose not to file a brief.

The appellant’s brief raised the following issues for determination –
1. Whether the judgment of the Trial Court ought to be set aside for failure to deliver same within 90 days as mandatorily required under the 1999 Constitution of Nigeria? (Distilled from Ground 1 of the Notice of Appeal filed on 4th March, 2019)
2. Whether from the totality of evidence adduced during trial, the Trial Court did not erroneously convict the Appellant of conspiracy with the 2nd Respondent to allocate Plot SS1, Jikwoyi Extension III to Pax Education Resources Ltd? (Distilled from Grounds 2, 3 & 4 of the Notice of Appeal filed on 4th March 2019)
3. Whether having regard to the evidence, the Trial Court was not in error in finding and convicting the Appellant of the offence of using public office to confer corrupt advantage on his relatives and associates? (Distilled from Grounds 5, 6, 7, 8 & 14 of the Notice of Appeal filed on 4th March, 2019)
4. Whether the trial Court was right to have held that the Appellant’s Statement before the independent Corrupt Practices Commission (ICPC) was a confessional statement? (Distilled from Ground 9 of the Notice of Appeal filed on 4th March, 2019)
5. Whether the trial Court breached the right to fair hearing of the Appellant when it failed to consider the Appellant’s Reply on Points of Law filed on 26th March, 2018 and adopted on 17th April, 2018? (Distilled from Ground 10 of the Notice of Appeal filed on 4th March, 2019)
6. Whether considering the legal status of Fine Trust Academy, the Trial Court was right in convicting the Appellant on Count 2 of the Charge, which is causing the title documents of Plot SS1 Jikwoyi Extension III belonging to Fine Trust Academy (a non-juristic person) to be issued in favour of Pax Education Resources Limited. (Distilled from Grounds 11, 12 & 13 of the Notice of Appeal filed on 4th March, 2019).

The 1st respondent’s brief raised the following issues for determination –
1. Whether the delay of judgment of the Trial Court occasioned any miscarriage of justice to the Appellant? Ground 1
2. Whether the Learned trial Judge was right to have held that Prosecution proved the alleged offences against the Appellant and rightly convicted the Appellant on Court 1 and 2 of the charge? Ground 2, 3, 4, 5, 6, 7, 8, 9 and 14
3. Whether failure of Lower Court to mention the Defendant’s reply in the judgment offended Appellant’s right to fair hearing and occasioned a miscarriage of justice to the Appellant? Ground 10
4. Whether the Appellant who was nether the grantor, the claimant nor beneficiary of the plot (SS1 Jikwoyi Extension III) and having no interest in the Company (Pax Education Resources Limited) have Locus to challenge the order of Lower Court revoking title documents of Pax Education Resources in favour of the nominal Complainant and whether this Honourable Court have jurisdiction to entertain same? Ground 10, 11, 12 and 13.
5. Whether the Court below was right to have discharged and acquitted the Appellant on Count 3 which is forgery of the Land Application form of the Normal Complainant when all the circumstantial evidence pointed irresistibly and conclusively to the Appellant as the forger of the document. Ground 1 of Respondent Notice.
6. Whether the trial Judge exercised his discretion judicially and judiciously by imposing 30 days imprisonment in lieu of 5 years provided by the enabling law given the circumstances of this case and the prevalent of official corruption in Nigeria. Ground 2 of 1st Respondent Notice.

I will determine this appeal on the basis of the issues raised in the appellant’s brief.

Let me start with issue No. 1 which asks “Whether the judgment of the trial Court ought to be set aside for failure to deliver same within 90 days as mandatorily required under the 1999 Constitution of Nigeria?”

I have carefully read and considered the arguments in the respective briefs on this issue.

Both sides agree and the record of this appeal show that final addresses were concluded at the Trial Court on 17-4-2018 when all parties adopted their written final addresses and the case was adjourned to 14-6-2018 for judgment, that the judgment was not delivered on that day as the matter was further adjourned to 26-11-2018 for judgment, that the trial Court again failed to deliver the judgment on 26-11-2018 and adjourned the case to 10-12-2018 for judgment and that the judgment was delivered on the 10-12-2018, 237 days after the conclusion of final addresses.

Both sides also agree that by virtue of S.294(5) of the Constitution of the Federal Republic of Nigeria 1999 (the 1999 Constitution), the judgment of the Trial Court would not be set aside or declared a nullity for the failure to deliver it within 90 days after the conclusion of final addresses as required by S.294(1) of the 1999 Constitution, unless this Court is satisfied that the appellant has suffered a miscarriage of justice.

Learned Counsel for the appellant has argued that the delivery of the judgment 237 days after conclusion of evidence and final addresses has made him suffer a miscarriage of justice because the long delay made the Trial Court rely on unreliable circumstantial evidence to convict him of the offence of conspiracy, when in fact, no such evidence existed as it misapprehended the quality of evidence and improperly evaluated the evidence before it resulting in the wrongful conviction of the appellant. For this submission, Learned Counsel relied on the Supreme Court decisions in Akoma & Ors v. Osenwokwu & Ors (2014) LPELR – 22885 (SC) and Atungwu & Anor v. Ochekwu (2013) LPELR – 20935 (SC) applying S.294(1) and (5) of the 1999 Constitution.

Learned Counsel for the 1st respondent argued that the judgment does not show that the Trial Court did not properly evaluate the evidence and did not remember the testimony of witnesses and that the judgment shows that it gave vivid account and description of the demeanour of witnesses, the impression each witness made on the Court in the witness box and their responses to questions under cross examination, including its summary of facts, proper evaluation of evidence adduced by each witnesses and comprehensive appraisal of facts and issues.

Let me now determine the merits of these arguments.
The trial Court was, no doubt, bound to deliver its judgment within 90 days from 17-4-2018, when final addresses were concluded as required by S.294(1) of the 1999 Constitution which provides that-
“(1) – Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.“
Even though the Trial Court failed to deliver its judgment within 90 days after 17-4-2018, the judgment cannot be set aside or declared a nullity for that reason alone. The only reason for which such a judgement can be set aside is if this Court is satisfied that the party complaining about the judgment being delivered out of time has suffered a miscarriage of justice from the delayed delivery of the judgment. This is so by virtue of S.294(5) of the 1999 Constitution which provides that-
“(5) – The decision of a Court shall not be set aside or treated as a nullity solely on the ground of non-compliance with the provisions of Subsection (1) of this section unless the Court exercising jurisdiction by way of appeal from or review of that decision is satisfied that the party complaining has suffered a miscarriage of justice by reason thereof.“
It is obvious from the terms of S.294(5) of the 1999 Constitution that the appellant as the party complaining that the delivery of the judgment out of time has caused him miscarriage of justice, has the burden to satisfy this Court that he has suffered miscarriage of justice as a result of the delivery of the judgment out of time.
In this appeal, Learned Counsel for the appellant has argued that – “it is this inordinate delay that led to the trial Court’s reliance on unreliable circumstantial evidence to convict the appellant of the offence of conspiracy when in fact, no such evidence existed…. The inordinate delay in preparing and delivery of the judgment by the Lower Court led to the misapprehension by the Lower Court of the quality of evidence elicited from the 1st respondent’s witness.

This led to the Court improperly evaluating the evidence before it, hence the wrongful conviction of the appellant.”
This assertion places a burden on the appellant to show that the delay in the delivery of the judgment caused the Court to rely on unreliable circumstantial evidence or that it caused the Court to misapprehend the probative value of the prosecution’s evidence or that it caused the Court to improperly evaluate the evidence before it. Assuming the trial Court relied on unreliable or improperly evaluated evidence before it in the judgment, this cannot justify the above assertion unless it can be shown that such errors could not have occurred if the judgment was delivered within 90 days after the conclusion of final addresses. This connection has proven difficult to establish except where the trial Court in its judgment expressly admits it. This is because experience has shown that even in many cases that judgments were delivered within 90 days after the conclusion of final addresses, errors of the Court such as not properly remembering the facts of the case, errors of improper or no evaluation of the evidence before the Court, errors of lack of understanding or proper understanding of the evidence and issues before the Court and errors of not considering some evidence or issue do also occur. So it is not correct to assume that the existence of such errors in a judgment delivered out of time is caused by the failure to deliver it within time. The appellant has not established to the satisfaction of this Court, that the long delay in delivering the judgment caused the errors alleged by the appellant. Therefore the said judgment cannot set aside. See Akoma & Anor v. Osenwokwu & Ors (supra), Dibiamaka v. Osakwe (1989) 3 NWLR (Pt. 107) 101, and Atungwu & Anor v. Ochekwu (supra).

In the light of the foregoing, issue No. 1 is resolved in favour of the 1st respondent.

Let me now determine issue No. 2 which asks “Whether from the totality of evidence adduced during trial, the Trial Court did not erroneously convict the Appellant of conspiracy with the 2nd Respondent to allocate Plot SS1, Jikwoyi Extension III to Pax Education Resources Ltd?”

I have carefully read and considered the arguments in the respective briefs on this issue.

The complain of the appellant in this issue is against his conviction for the offence in Count one of the charge upon which he was tried. The said count reads thusly –
“COUNT ONE
That you Patrick Pillah(m) and Lugard Edegbe(m) on or about the month of July, 2000 while being Public Officer at Abuja Municipal Area Council as Secretary of Committee for Resolution of Disputes involving land and Zonal Land Manager respectively conspired to use your said positions to confer corrupt advantage upon relations and associates of Patrick Pillah by causing the title documents of Plot SS1 Jikwoyi Extension III to be made in favour of Pax Education Resource an unregistered company belonging to Patrick Pillah’s relations and associates and you thereby committed an offence contrary to Section 26(1)(c) and punishable under Section 19 of the Corrupt Practices and Other Related Offences Act 2000.”

S. 26(1)(c) of the Corrupt Practices and Other Related Offences Act provides that “Any person who abets or is engaged in a criminal conspiracy to commit any offence under this Act” …shall on conviction be liable to the punishment provided for such offence.
The offence the appellant and the 2nd respondent conspired to commit and the punishment therefore are stated in S.19 of the Corrupt Practices and Other Related Offences Act 2000 as follows-
“Any public officer who uses his office or position to gratify or confer any corrupt or unfair advantages upon himself or nay relation or associate of the public officer or any other public officer shall be guilty of an offence and shall on conviction be liable to imprisonment for five (5) years without option of fine.”

The prosecution did not elicit any evidence of an expressed agreement by the appellant and the 2nd respondent to use their positions as Secretary of Abuja Municipal Area Council Committee for Resolution of Disputes involving land and Zonal Land Manager respectively to confer corrupt advantage on Pax Education Resources belonging to appellant’s relation or associate. The Trial Court after correctly directing itself on the established law that the existence of such an agreement or conspiracy can be inferred from the evidence of the individual acts of each accused person that make the commission of a particular crime possible, proceeded to infer the agreement between the appellant and the 2nd respondent from the acts of each of them in their respective official positions that conferred the corrupt advantage upon Pax Education Resource.

The judgment of the Trial Court show that the facts from which the Trial Court inferred the existence of the said agreement or agreement between the appellant and the 2nd respondent are as follows – The subject matter of the corrupt advantage is Plot SS1 Jikwoyi Extension III under the control and management of Abuja Municipal Area Council. It was allocated by Abuja Municipal Area Council (AMAC) on 11-12-1997 to a school named Fine Trust Academy owned by PW4, upon the PW4’s completion and submission of an application for the allocation of the said plot to Fine Trust Academy on 11-10-1997. The letter of allocation of the said plot to Fine Trust Academy dated 11-12-1997 was signed by the 2nd respondent. Fine Trust Academy file with Abuja Municipal Area Council (AMAC) is numbered as MISC. 9764.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

</br<>

On 30-6-2000, P.T.A Nigeria Limited applied to Abuja Municipal Area Council (AMAC) for allocation of a plot of land at Jikwoyi Extension III. Pursuant to this application, an allocation letter dated 12-5-2000 was issued to Pax Education Resources (an unregistered body) allocating the same Plot SS1 Jikwoyi Extension III. The allocation letter was also signed by the 2nd respondent. The file number of PTA Nigeria Limited is 2209.

The 2nd respondent between 1997 to 2000 allocated plots of land in Jikwoyi Extension to various persons. At that time, he was the Zonal Land Manager for Abuja Municipal Area Council (AMAC) and the appellant was the Secretary of the Abuja Municipal Area Council (AMAC) Committee for the Resolution of Land Disputes.

The appellant admitted that he facilitated the acquisition and processing of the plot by Pax Education Resources. PW2, the Resident Surveyor in charge of all surveys and mappings in Abuja Municipal Area Council (AMAC) between 2004 and 2011 testified without challenge or contradiction that the appellant brought an application for the processing of his title deed plan in respect of the said plot SS1 Jikwoyi Extension III, that the title deed was not processed because when the file was brought to them, they followed due process to find out if the name of the applicant was on the list and if the file had ever been charted. They discovered that it had been charted in 2005 for Fine Trust Academy and the title deed had been collected and processed by Fine Trust Academy at the time.

The appellant admitted that the General Manager of Pax Education Resource is his second cousin and admitted his interest in the allocation of the plot to Pax Education Resources when he stated in his extra judicial statement (exhibit 11) that –
“we in receipt of the offer, paid the necessary fees and the file was forwarded to the Zonal surveyor for charting, and preparation of title deed plan. On discovering that a purported letter from Fine Trust Academy dated 1997, three years before the layout was prepared in 2000 was being done, we reported to Abuja Municipal Area Council (AMAC) whose report indicated that the Plot belonged to us and thereafter directed that it be charted accordingly.”

Some pages of the file of Fine Trust Academy at Abuja Municipal Area Council (AMAC) were removed and missing and the “1997” on application form for allocation of land to Fine Trust Academy was altered to “2005”. When the PW4 completed and submitted the form in 1997, he photocopied it before submitting same. The photocopy show the correct date of 1997.

In 2005, the appellant in person confronted PW4 and challenged the occupation and ownership of the land by Fine Trust Academic, demanding that PW4 quit the land and deliver Fine Trust Academy’s documents of title to the land to him and claiming that the said plot SS1 Jikwoyi Extension III belonged to him. The part of the judgment in which the trial Court considered these facts reads thusly –
“In the instant case, from the evidence of the prosecution witnesses it is difficult to establish a common agreement or mens rea between or of the Defendants to do an illegal act. However, by the actus reus of the 1st and 2nd Defendants in the allocation of Plot SS1 Jikwoyi Extension III to Pax Education Resource, the evidence of PWS1, 2, 3, 4 and Exhibits 5, 5(a) 6,6(a) 7,7(a) 7(b), 18 and 22 including Exhibits 11 and 11(a), the statements of the Defendants respectively, has drawn the mens rea of the Defendants in the open.
For the purpose of clarity, Exhibits 5, 7, 7 (a), 7(b) and 22 are documents evidencing title for Fine Trust Academy. Exhibit 22 is the policy file of Fine Trust Academy in which Plot SS1 Jikwoyi Extension III was granted to it. The policy file no is MISC 9764. In contrast, PTA (Nigeria) Limited by Exhibits 6 and 5 (a) also applied for grant of land for Educational purpose. Exhibits 5(a) and 6 are the application for land by PTA (Nigeria) Limited. The Abuja Municipal Area Council however did not approve any allocation of land to PTA Nigeria Limited. Further, by Exhibit 5(a) and 6, the application file number of PTA Nigeria Limited is MISC 2209. Then by Exhibit 18, the same file number MISC 2209 which ought to be the policy file number of PTA Nigeria Limited, the name on the policy file is Pax Education Resource. And by the evidence of PW2 and 3, their testimonies tallies with the contents of Exhibit 18 to the effect that PTA Nigeria Limited applied for the land but the allocation letter came out in the name of PAX Education Resources. And by the evidence of PW2, the Resident ZONAL Surveyor, the 1st Defendant brought to her title documents of PAX Education Resource to process and issue title Deed Plan (TDP) which PW2 told the 1st Defendant that the Plot SS1 Jikwoyi had already been charted in favour of Fine Trust Academy. Despite evidence in Exhibit 18 and the testimonies of PWS1, 2, 3 and the evidence of PW4 and indeed Exhibits 11 and 11(a) and the evidence of DWS4 and 6, the 1st and 2nd Defendants manipulated the processes of land application by using Exhibit 18, the policy file number 2209 of PTA (Nigeria) Limited and issued the grant of Plot SS1 Jikwoyi Extension III to PAX Education Resource Exhibit 6(a). The 2nd Defendant admitted in his statement, Exhibit 11 (a) that he signed Exhibit 6(a) as well as Exhibits 4 and 7(a) respectively. He also admitted in Exhibit 11(a) that the process was wrong for PTA to apply for land allocation and the allocation letter to come out in another person’s name that is, PAX Education Resource. Under cross examination by the learned prosecuting Counsel, I watched closely the 2nd Defendant as DW6 while responding to questions. The 2nd Defendant as DW6 testified thus:-
“I can see Exhibit 15. Exhibit 15 is a replacement and PAX Education is not the first allottee. I signed the letter of replacement.”
While the cross-examination by the prosecution continued, I was watching closely the demeanour of DW6 especially when he testified thus:-
“I can’t remember which plot was allocated to PAX Education first before the replacement.” He also stated: “An Applicant does not apply for replacement I am not aware of the application of the first allotment. I have not seen the 1st application for PAX Education.”
Under cross-examination, DW6 further stated:-
“There is no application form for Pax education in Exhibit 18. I did not see the application form for land of PAX Education. I picked names of allottees by instructions from the Honourable Minister. I did not see the application form for land of PTA Nigeria Limited for forwarding to the Minister for approval.”
Then when DW6 was asked under cross-examination by the prosecution who gave him the name of PAX Education, he answered:-
“I can’t remember who gave me the name of PAX Education Resources Limited. Anybody can walk into Abuja Municipal Area Council (AMAC) without application form for land and we can allocate land to the person.”
Further DW6, testified under cross-examination thus:
“Patrick Pillah was the Secretary, Lands Committee. Patrick Pillah was also the Secretary of the lands allocations committee. The list of allottees were made by the registry and taken to me and I will now take it to the land allocation Committee. The Registry makes the list on my instruction.”
As I said earlier, I have watched closely the demeanour of DW6 while answering questions in the witness box. He was not consistent with his testimony and he appears too economical with the truth. DW6 is not a witness of truth.
Firstly, DW6 under cross-examination by the prosecution when shown Exhibit 15, states:-
“I can see Exhibit 15. Exhibit 15 is a replacement and PAX Education is not the first allottee.”
On the other hand, under further cross-examination by the prosecuting Counsel, DW6 avers:-
“I can see Exhibit 11 (a). in my statement it is correct that where there is double allocation, the Applicant that got the title deed plan first would be left in the plot and the other given a replacement.”
By the evidence of DW6 under cross-examination above, DW6 admitted himself that the allocation to PAX Education was not the first. Secondly, DW6 by his evidence, Plot SS1 Jikwoyi Extension III cannot be allocated to PAX Education Resource because the Plot had already been charted in favour of Fine Trust Academy.
The question that begs for an answer is that with all the avalanche of evidence by PWS1, 2, 3, 4 and the admission of DW6 including Exhibits 4, 5, 6, 6(a) 7,7(a), 7(b), 15, 18, 22 and the statement of the 2nd Defendant, Exhibit 11 (a) why did the 2nd Defendant failed in his statutory duties to do the right thing but instead signed a fresh allocation letter, Exhibit 5 (a) to PAX Education Resource?
The answer appears not farfetched. From the evidence of DW6 and his statement, Exhibit 11(a) it is not in doubt that the 1st Defendant worked under the 2nd Defendant and served as secretary of lands allocation committee. Further, from the statement of the 1st Defendant, Exhibit 11, there is no dispute that he has interest in the allocation to PAX Education Resources, a company that has never applied for allocation of land and even the policy file, Exhibit 18 bears the name of PAX Education Resource. And it is common knowledge that the 1st Defendant, being the secretary of land allocation Adjudication Committee, was the custodian of the records pertaining the land allocations and or applications for land within the period in question. Further by the evidence of PWS2, 3, 4, Exhibits 9, 10 and 11, the interest of the 1st Defendant in plot SS1 Jikwoyi Extension III is crystal clear. And by the actus reus of the 1st and 2nd Defendants in their avowed pursuant to deny and deprive the nominal complainant the Proprietor of Fine Trust Academy of Plot SS1 Jikwoyi Extension III, by the said human error admitted by the 2nd Defendant and his refusal to rectify same, and by the steps taken by the 1st Defendant that culminated into the 1st Defendant pursuing or visiting the site of SS1 Jikwoyi Extension III and urging the Proprietor of Fine Trust Academy, PW4 to return the title documents of the said plot and keep off the said plot in his own interest and the prosecution of PW4, the Proprietor of Fine Trust Academy, the actions of the 1st and 2nd Defendants, the actus reus of the 1st and 2nd Defendants, mens rea can be drawn or inferred.”

Learned Counsel for the appellant argued that the trial Court’s findings are perverse as they are not supported by the evidence on record, that there is no evidence from the 1st Respondent that the allocation of Plot SS1 Jikwoyi Extension III in favour of Pax Education Resource was not done by the 2nd Respondent in the performance of his official functions, that the Appellant’s act of facilitating allocation of the land, which was done innocently without any criminal intent, cannot ground an inference of conspiracy, that none of the 1st Respondent’s witnesses proved any unprofessional relationship between the Appellant and the 2nd Respondent from which conspiracy can be inferred, that none of the 1st Respondent’s witnesses proved any action or omission from the Appellant and 2nd Respondent which amount to overt acts from which the offence of conspiracy can be inferred, that the evidence of signing of two allocation letters by the 2nd Respondent; the evidence of 2nd Respondent being the Appellant’s superior in the office; the evidence of existence of two allocation letters and the evidence of the Appellant carrying Exhibit 5(a) around to plead with the staff of Abuja Municipal Area Council (AMAC), can at best give rise to suspicion or speculation and are not convincing enough to establish any conspiracy between the Appellant and the 2nd Respondent, that the circumstantial evidence which the trial Court relied upon in convicting the Appellant of conspiracy with the 2nd Respondent is not strong, cogent and convincing enough, nor irresistibly pointing to any conspiracy, that the facts and circumstances relied upon by the trial Court are rather speculative and not factual for the inference of conspiracy, that none of the 1st Respondent’s witnesses proved conspiracy against either the Appellant or the 2nd Respondent and no cogent evidence was led whatsoever to establish the ingredients of conspiracy as laid down in law, that specifically, PW1 in the course of his testimony asserted that the relationship between the Appellant and 2nd Respondent was purely official and was not aware of any meeting between them for the purpose of conferring corrupt advantage on the Appellant’s relations, that PW2 also denied knowledge of any meeting between the Appellant and 2nd Respondent that was purely official and was not aware of any meeting between them for the purpose of conferring corrupt advantage on the Appellant’s relations, that PW2 also denied knowledge of any meeting between the Appellant and 2nd Respondent for the purpose of allocating land to the Appellant’s relations, that PW3 who investigated the petition could not equally confirm any non-official relationship between the Appellant and 2nd Respondent and could not say from his investigation if there is any personal relationship between them, while PW4 in the whole gamut of his evidence did not establish any agreement between the Appellant and 2nd Respondent to commit the offence of conspiracy.

Learned Counsel for the 1st respondent argued that the act of the 2nd respondent signing the letter allocating the said plot to Fine Trust Academy on 11-12-1997 and signing another letter allocating the same plot of land to Pax Education Resources on 12-7-2000 are overt acts of collusion to deprive Fine Trust Academy the plot allocated to it, and allocate it to Pax Education Resources, that the interest of the appellant personally or by his relations in Pax Education Resources and his facilitating the allocation to Pax Education Resources is another evidence of the conspiracy to divest Fine Trust Academy of its plot and vest it in Pax Education Resources that did not apply for the plot to be allocated to it and that the General Manager of Pax Education Resource is the second cousin of the appellant and, that the 2nd respondent cannot be said to have made the second allocation innocently as he was aware that the plot was already allocated to Fine Trust Academy.
Let me now consider the merits of the above arguments.

The question that is thrown up by the arguments of both sides is whether the 12-7-2000 allocation to Pax Education Resources of Plot SS1 Jikwoyi Extension III already allocated on 11-12-1997 to Fine Trust Academy was an innocent error of double allocation of the same plot to different persons or an act from which can be inferred an agreement or conspiracy between the appellant and 2nd respondent to confer corrupt advantage upon relations of the appellant, Pax Education Resources that did not apply for such allocation.

It is clear from the evidence that the appellant and the 2nd respondent work together in the Abuja Municipal Area Council (AMAC) Lands office, that the 2nd respondent as the zonal land Manager is superior to the appellant as Secretary of the Committee for Resolution of Land Disputes, that the appellant presented and facilitated the application by PTA Nigeria Limited on 30-6-2000 for the allocation of a plot in Jikwoyi Extension III, that the 2nd respondent issued a letter dated 12-7-2000 allocating plot SS1 Jikwoyi Extension III to Pax Education Resources, an unregistered body that did not make the application, which said plot had already been allocated three years earlier to Fine Trust Academy by a letter dated 11-12-1997 signed by the 2nd respondent, that the General Manger of Pax Education Resources is a cousin of the appellant and the appellant has admitted his interest in the plot allocated to Pax Education Resources, that the appellant and the 2nd respondent have continued to assert that the second allocation of the plot to Pax Education Resources is valid as a replacement of an initial allotment, that there is no evidence of any previous allocation of the plot by Abuja Municipal Area Council (AMAC) to Pax Education Resources, that Pax Education Resources did not apply for allocation or replacement of plot, that there is no evidence of how the 2nd respondent came by the name Pax Education Resources, whose General Manager is appellant’s cousin, with the appellant admitting his personal interest in the said allocation to Pax Education Resources.

The 2nd respondent as DW6 testified concerning the allocation to Pax Education Resources thusly- “It is correct that the allocation to PAX Education Resources Limited was a replacement. There is no specific application form to be filed for replacement. It is true that the Application form for the allocation by PTA Nigeria Limited which I am not aware of but the allocation that I know was PAX Education Resources Limited. I only know the allocation of PAX Education Resources Limited.“
Under cross-examination he testified that-
“I can see Exhibit 15. Exhibit 15 is a replacement and PAX Education is not the first allottee. I signed the letter of replacement. I can’t remember which plot was allocated to PAX Education first before the replacement. An Applicant does not apply for replacement I am not aware of the application of the first allotment I have not seen the 1st application for PAX Education. I can see Exhibit 18. There is no application form for PAX Education in Exhibit 18. I did not see the application form for land of PAX Education. I pick names of allottees by instructions from the Honourable Minister. I did not see the application form for land of PTA Nigeria Limited for forwarding to the Minister for approval. I can’t remember who gave me the name of PAX Education Limited. Anybody can walk into Abuja Municipal Area Council without application form for land and we can allocate land to the person. The role of the land allocation committee is to vet the list submitted to them for allocation of land. It is correct I made statement to the ICPC. I can see Exhibit 11(a). In my statement, it is correct that where there is double allocation, the Applicant that got the title deed plan first would be left in the plot and the other given a replacement. Between PAX Education and Fine Trust Academy, it is Fine Trust that has the title deed plan. The signature on the conveyance on Fine Trust Academy is Mine. I did not say the signature on the conveyance to Fine Trust Academy is not mine but the letter. The 1st Defendant is only an Admin. Officer and under the Zonal Planning Office. I can see Exhibit 11. I can read Exhibit 11 page 2 to the effect that Patrick Pillar was the secretary lands committee. Patrick Pillar was also the secretary of the Lands Allocation Committee. The list of allottees were made by the registry and taken to me and I will now take it to the land allocation committee. The registry makes the list on my instructions. I gather my instructions from the Honourable Minister, Directors, Chairman etc for short listing of Applicants for allocation. The instructions come to me a times verbally or in writing from Honourable Minister and Chief of Defence Staff. Ordinary Nigerians like PAX Education Resources Limited can also be allocated land because he must present himself to me or by representations. I cannot remember the representative of PAX Education Limited that came to me. I am not aware that at the time PAX Education Limited was granted the allocation, it was not a Limited liability company. No in the Abuja Municipal Area Council, we do not request for certificate of incorporation before granting an allotment to a company. It is correct that an allocation can be made to a non-existing entity. I am not the one that included PAX Education on the list of allottees. I did not allocate land to Fine Trust Academy in 1997 while the deed plan was made in 2000. It is not possible for a stranger to insert a deed plan in a policy file. The TDP originated from Abuja Municipal Area Council.“

In his testimony above, the 2nd respondent justifies his act of issuing a letter of allocation to a body that did not apply for allocation or replacement of land, whose name he did not know and without stating who gave the name to him. Yet it turns out that the General Manager of this company is the cousin of the appellant and the appellant has admitted having interest in the land allocated to the said body Pax Education Resources. The 2nd respondent as DW6 testified that the appellant was also Secretary of the Lands Allocation Committee which works under the 2nd respondent.

In the light of the foregoing facts, I hold that the Trial Court was justified to infer from the 2nd respondent’s act of issuing the letter of 12-7-2000 allocating plot SS1 Jikwoyi Extension III to Pax Education Resources, that the appellant and 2nd respondent conspired to confer a corrupt advantage on Pax Education Resources whose General Manager is appellant’s cousin by allocating Plot SS1 Jikwoyi Extension III belonging to Fine Trust Limited to it. It would amount to an affront to common sense to regard the allocation to Pax Education Resources, an innocent error of double allocation of one plot to two persons.

In the light of the foregoing, issue No. 2 is resolved in favour of the 1st respondent.

Let me now determine issue No. 3 which asks- “Whether having regard to the evidence, the Trial Court was not in error in finding and convicting the Appellant of the offence of using public office to confer corrupt advantage on his relatives and associates?”

The complain of the appellant under this issue is against his conviction for the offence in count two of the charge against him. The said count reads thusly-
COUNT TWO
That you Patrick Pillah(m) and Lugard Edegbe(m) on or about the month of July, 2000 at Abuja while being public officers in Abuja Municipal Area Council Abuja as Secretary of Committee of Resolution of Disputes involving Land and Zonal Land Manager respectively used your said Office to confer corrupt advantage upon relations and associates of Patrick Pillah by causing title documents of Plot SS1 Jikwoyi Extension III to be issued in favour of Pax Education Resource an unregistered company belonging to Patrick Pillah’s relations and associates and you thereby committed an offence contrary to an punishable under Section 19 of the Corrupt Practices and Other Related Offences Act 2000.”

The part of the judgment of the Trial Court complained against under this issue reads thusly – “Thus from the evidence adduced by the prosecution witnesses especially PWs1, 2, 3 and 4, Exhibits 3, 4, 5, 5(a)6(a) 7, 7(a) 7(b) 12, 15, 18, 22 and the statements of the 1st and 2nd Defendants, Exhibits 11 and 11(a) and indeed the testimonies of DWs4 and 6, the 1st and 2nd Defendants, with all the facts available at their disposal as regards the two allocations to Fine Trust Academy and Pax Education Resource Limited, the Defendants vowed and indeed were battle ready to allocate Plot SS1 Jikwoyi Extension III to a company that has never applied for such allocation despite the knowledge that Plot SS1 Extension III, Jikwoyi had already been charted for Fine Trust Academy and titled Deed plan collected. Hence, the facts and circumstances of the instant case clearly shows further that the 2nd Defendant by signing the allocation letter Exhibit 5(a) without Pax Education Resources completing the application form which is a pre- requisite to processing of the allocation letter and the 1st Defendant being the secretary of the Rural land Adjudication Committee of Abuja Municipal Area Council (AMAC) in which in his statement, Exhibit 11 stated as follows:-
“we in receipt of the offer, paid the necessary fees and the file was forwarded to the Zonal surveyor for charting, and preparation of title deed plan. On discovering that a purported letter from Fine Trust Academy dated 1997, three years before the layout was prepared in 2000 was being done, we reported to Abuja Municipal Area Council (AMAC) whose report indicated that the Plot belonged to us and thereafter directed that it be charted accordingly.”
From the evidence of PWS1, 2, 3 and 4 and the statements of the 1st and 2nd Defendants i.e Exhibits 11 and 11(a) respectively and indeed the oral testimonies of DWS 4 and 6, it is evident that the 1st and 2nd Defendants are public officers holding the position of Zonal Land Manager and secretary Rural land allocation and Adjudication Committee of Abuja Municipal Area Council (AMAC) at the material time that culminated into the filing of the instant charge. Secondly, by the evidence of PW2 that the 1st Defendant brought title documents for processing and issuance of Title Deed Plan to her, the evidence of PW2 is confirmed by the statement of the 1st Defendant that he has interest in Plot SS1 Jikwoyi Extension III. Further in both his statement Exhibit 11 and his oral testimony, DW4 asserted that when the offer of plot SS1 Jikwoyi Extension III was granted to Pax Education Resources, they paid for the processing fee and receipts were issued to them. He also stated under cross examination on the 17th January, 2018 that Joseph Jande is his 2nd cousin. The statement of the 1st Defendant Exhibit 11 and his oral testimony under cross examination clearly confirmed the testimony of PW4 of the interest of the 1st Defendant in plot SS1 Jikwoyi Extension III. Further, by Exhibits 9 and 10, PTA Nigeria Limited is one of the Directors of Pax Education Resources while by Exhibit 10, the 1st Defendant, is a Director of PTA (Nigeria) Limited. Thus, apart from Joseph Jande being the General Manager of Pax Education Resource and a second cousin of the 1st Defendant, the 1st Defendant being a Director in PTA Nigeria Limited and PTA Nigeria Limited being a Director of Pax Education Resource, and the testimony of PW4 and the travails of PW4 in respect of Plot SS1 Jikwoyi Extension III, there exist credible evidence by the prosecution to establish the interest of the 1st Defendant in Plot SS1 Jikwoyi Extension III. Further, by the testimony of PWS1, 2, 3, and 4 and a close look at the statements of the 1st and 2nd Defendants, Exhibits 11 and 11 (a) including their elicited evidence during cross examination by the prosecution, it is crystal clear that the 1st and 2nd Defendants inappropriately or unlawfully used their positions or office to deprive the Proprietor (PW4) of Fine Trust Academy plot No. SS1 Jikwoyi Extension III which plot had already been allocated and charted in favour of Fine Trust Academy.
Earlier, I have established by the credible evidence of PWS1, 2, 3, 4 Exhibits 9, 10 and the statement of the 1st Defendant, Exhibit 11 and his oral testimony under cross examination by the prosecution of the interest of the 1st Defendant in Plot SS1 Jikwoyi Extension III, it is not however possible to link the interest of the 2nd Defendant to plot SS1 Jikwoyi Extension III. Thus, therefore, I hold the view that he ingredients of the offence of conferring unfair advantage under Section 19 of the Corrupt Practices and Other Related Offences Act, 2000 have been proved beyond reasonable doubt against the 1st Defendant and I so hold. The 2nd Defendant, on the other hand, as I said before, there is no credible evidence to prove that the allocation relates to him or any of his associate. Consequently, the 2nd Defendant is discharged and acquitted on the offence of conferring unfair advantage under Section 19 of the Corrupt Practices and other Related Offences Act.“

Learned Counsel for the appellant has argued that that to prove the charge of abusing office to confer corrupt advantage on relations, the 1st Respondent had a duty to establish through cogent evidence that the Appellant used his position as Secretary of the Committee for Resolution of Disputes involving land, to confer unfair advantage on a company belonging to himself or his relations, that the 1st Respondent also had the duty to prove that the Appellant caused title documents of Plot SS1 Jikwoyi Extension III to be issued to a company belonging to him or his relations and also prove that Pax Education Resources is a company belonging to the Appellant or a company in which he has interest, that the 1st Respondent has not proved that the Appellant used his position as Secretary of the Committee for Resolution of Disputes involving land to confer corrupt advantage to Pax Educational Resources Ltd, that this fact can only be established by cogent and credible evidence which in this case was not provided by the 1st Respondent as there is no evidence before the Court to link the grant of the title to Pax Ltd to the fact that the Appellant occupied the position of Secretary of the Committee for Resolution of disputes involving land, that no evidence was led by the 1st Respondent to establish the functions of the Appellant as Secretary of the Committee for Resolution of Disputes involving land, and how he used these functions to confer corrupt advantage on Pax Educational Resources Ltd, that the Appellants position as Secretary of the Committee for Resolution of Disputes involving land involves the resolution of land disputes, that the Appellant as DW4 testified that he did not hold any position that had to do with allocation of land and in fact, that he never played a role in allocations, that this evidence was never challenged nor contradicted, that the Lower Court and indeed this Court, is under a duty to believe this unchallenged and uncontradicted evidence, that the bounden duty of proving that such an office for resolution of land disputes was used by the Appellant in issuing title to Pax Educational Resources Ltd, is heavily on the 1st Respondent and that this duty the 1st Respondent failed to discharge as there exist no evidence to establish this fact.

He further submitted that the next element of the offence charged was equally not proved by the 1st Respondent as there was no clear evidence on how or in which way the Appellant caused title documents of Plot SS1 Jikwoyi Extension III to be issued to a company belonging to himself or relation, that the carrying of the Policy File of Pax Educational Resources Ltd to PW2 by the Appellant; the visit of the Appellant to PW4 over the land in dispute or even the Appellant’s statement in Exhibit 11 regarding his facilitation and processing of the land, are not cogent and compelling enough to prove that the Appellant caused the title documents to be issued in favour of Pax Educational Resources Ltd, that this is in addition to the fact that the office of the Appellant was involved in the resolution of land disputes and not issuance of title to land, that the facts and circumstances relied upon by the trial Court to find that the 1st Respondent proved the charge of using office to confer corrupt advantage on relations are extraneous and render the findings of the Court as well as the conclusion perverse, that the 1st Respondent did not prove beyond reasonable doubt that Pax Educational Resources Ltd belonged to the Appellant or his relation, that the 1st Respondent’s attempt to show a link between the Appellant and Pax Education Resource is feeble and unconvincing as PW3 when confronted with Exhibit 9 and Exhibit 10 was unable to show that the Appellant was either a shareholder or director in any of the two entities, that the available evidence of 1st Respondent’s witnesses simply show that the 1st Respondent only suspected that the Appellant committed the offence charged as there was neither direct nor cogent circumstantial evidence linking him to the offence charged, that the facts and circumstances which the Court relied upon, merely give rise to suspicion which cannot ground a conviction in law.

Learned Counsel for the 1st respondent argued that there is no contradiction in the evidence adduced by the prosecution, that the appellant himself admitted facilitating the processing and acquisition of plot SS1 Jikwoyi Extension III by Pax Education Resources that did not apply for the allocation of the Plot to it, that the appellant admitted that he had an interest in the said allocation, that the appellant at the time was working in the same land office in Abuja Municipal Area Council (AMAC) as Secretary of Land Disputes Resolution Committee, that the appellant admitted that the General Manager of Pax Education Resources was his second cousin, that the allocation of plot SS1 Jikwoyi Extension III to Pax Education Resources is not an innocent or accidental act but a deliberate one contrived by the appellant and 2nd respondent, that the Trial Court rightly disbelieved the testimony of DW1 and that the prosecution’s evidence proved the guilt of the appellant.
Let me now determine the merits of the above arguments of both sides.

It is clear from the evidence that it is not in dispute that at all times material to this case, the appellant was working in Abuja Municipal Area Council (AMAC) Lands office as Secretary of the Committee for Resolution of Land Disputes. The 2nd respondent testified as DW6 that the appellant was also Secretary of Land Allocation Committee.

It is glaring from the evidence adduced by the prosecution that the appellant was working as such Secretary of the Committee for Resolution of Land Disputes in Abuja Municipal Area Council (AMAC) when he presented the application by PTA Nigeria Limited for allocation of land in 2000 and when he brought an application for processing of the title deed plan of Plot SS1 Jikwoyi Extension III in 2005 to PW2 as Resident Surveyor for Abuja Municipal Area Council (AMAC). The appellant himself admitted in his extrajudicial statement, Exhibit 11, that he facilitated the acquisition and processing of the said plot. He also admitted in Exhibit 11 that he had an interest in the Plot allocated to Pax Education Resources. The exact words of that admission reads thusly-
“we in receipt of the offer, paid the necessary fees and the file was forwarded to the Zonal surveyor for charting, and preparation of title deed plan. On discovering that a purported letter from Fine Trust Academy dated 1997, three years before the layout was prepared in 2000 was being done, we reported to Abuja Municipal Area Council (AMAC) whose report indicated that the Plot belonged to us and thereafter directed that it be charted accordingly.”

The evidence of the prosecution, particularly that of PW2, the Resident Surveyor for Abuja Municipal Area Council (AMAC), to whom the Appellant presented an application to map the plot and process a title deed plan of the plot for Pax Education Resources, show that the application could not be granted because the plot had already been mapped and signed and a title deed plan of the plot produced in the name of Fine Trust Academy. It had already been minuted by another officer on the last page of Exhibit 5(a), Pax Education Resources Policy File, that the title plan for Plot SS1 Jikwoyi Extension III had been produced in the name of Fine Trust Academy.

The evidence of the prosecution particularly the testimony of PW4 establish that inspite of the failure of the application he presented for the processing of a title deed plan of the plot for Pax Education Resources, the appellant continued to personally challenge the validity of the title of Fine Trust Academy to the Plot and its occupation of same.

The evidence also establish that some pages of the policy file No. 9764 was removed and are missing and the “1997” date in the file was altered to read “2005”. Although there is no evidence of who removed those documents and falsely entered the date, it is worthy of note that this could have been done only by a person who has access to the file in the custody of the lands office of Abuja Municipal Area Council (AMAC) and who is against the plot being vested in Fine Trust Academy.

The appellant in Exhibit 11 stated that “Joseph Jande, General Manager is my second cousin and I facilitated the acquisition, processing of the property in question. A report submitted by Abuja Municipal Area Council (AMAC) to the DPO indicated that Fine Trust Academy is located on 1770 while SS1 belongs to Pax Education Resources.”

It is obviously not a mere coincidence that the appellant in June 2000 presented an application by PTA Nigeria Limited for allocation to it of a plot in Jikwoyi Extension III, but upon the grant of the application in December, 2000, another body, Pax Education Resources in which his cousin is General Manager, which body did not make the application, was allocated plot SS1 Jikwoyi Extension III, which had three years earlier already been allocated to Fine Trust Academy and the appellant upon receiving the said letter of allocation of the land to Pax Education Resources, proceeded in 2005 to apply to the Zonal Surveyor and pay the necessary fees for the charting and preparation of the plan of the said plot that had already been charted and in respect of which a plan had already been produced in the name of Fine Trust Academy, and has, even after the said Zonal Surveyor had refused to chart and issue a title deed plan in favour of Pax Education Resources because the plot had already been allocated and a title deed plan made in favour of Fine Trust Academy, continued to assert the title of Pax Education Resources to Plot SS1 Jikwoyi Extension III and challenging the title of Fine Trust Academy to the same plot. Since all he did to facilitate the acquisition of plot SS1 Jikwoyi Extension III were done while he was a public officer, working in Abuja Municipal Area Council (AMAC) as Secretary of Committee of Resolution of Disputes involving Land, his conviction by the trial court for the offence in Count two of the charge is correct. It is obvious that the appellant was able to do all he did because he was working in the Lands office at Abuja Municipal Area Council (AMAC).

In the light of the forgoing, issue No. 3 is resolved in favour of the 1st respondent.
Let me now consider issue No. 4 which asks “Whether the Trial Court was right to have held that the Appellant’s Statement before the independent Corrupt Practices Commission (ICPC) was a confessional statement?“

I have carefully read and considered the arguments of all sides on this issue.
The issue and the arguments of the appellant do not disclose any valid and genuine complain against the judgment of the Trial Court.

Exhibit 11 is the extrajudicial voluntary statement the appellant made on 30-1-2012 to PW3 an officer of the Independent Corrupt Practices and other Related Offences Commission. It was tendered in evidence as part of prosecution evidence.

The appellant admitted therein that while working as the Abuja Municipal Area Council (AMAC) Secretary of Committee for Resolution of Land Disputes, he facilitated the acquisition of Plot SS1 Jikwoyi Extension III to Pax Education Resources and when he received the allocation letter, he paid the necessary fees for the preparation of a title deed plan of the said plot for Pax Education Resources. The Trial Court relied on his said admissions therein as further evidence of the role he played in getting plot SS1 Jikwoyi III Extension corruptly allocated to and vested in Pax Education Resources.

The Trial Court did not rely only on his said admissions in Exhibit 11 in convicting him. Its judgment shows that it also relied on the testimonies of PW1, PS2, PW3, PW4, DW4 and DW6 and Exhibits 5, 5(a), 6, 6(a), 7, 7(a), 8, 9, 10, 11, 11(a), 19 and 22 in convicting the appellant.

The Trial Court rightly relied on Exhibit 11 in convicting the appellant. It did not hold that Exhibit 11 was a confessional statement. It simply relied on the admissions therein by the appellant concerning the role he played in allocating plot SS1 to Pax Education Resources. So there is no basis for the question, whether it correctly held that Exhibit 11 is a confessional statement.
Issue No. 4 is resolved in favour of the 1st respondent.

Let me now consider issue No. 5 which asks “Whether the Trial Court breached the right to fair hearing of the Appellant when it failed to consider the Appellant’s Reply on Points of Law filed on 26th March, 2018 and adopted on 17th April, 2018?“

Learned counsel for the appellant argued that the trial Court failed to consider his arguments in the reply on points of law he filed and adopted at the trial, that the reply on points of law responded to new issues raised in the 1st respondent’s final written address at the trial, that the failure to consider the reply on points of law means that the trial Court allowed itself to be persuaded by the 1st respondent’s arguments on the point without considering the reply on points of law, that this is clearly a denial of the appellant’s right to address the Court and right to a fair hearing, that such new point raised in the 1st respondent’s said final written address is the argument that Exhibit 11 is a confessional statement, the reply on points of law argued in response thereto, that the Trial Court failed to consider the responsorial arguments in the reply on points of law and proceeded to hold that Exhibit 11 is a confessional statement and relied on it to convict the appellant, that if the Trial Court had considered the arguments in the reply on points of law, it would have seen that Exhibit 11 does not amount to a confessional statement upon which a conviction can be based, that the judgment of the trial court is a nullity for the failure of the trial court to observe the appellant’s right to be fairly heard.
The 1st respondent did not respond to this argument.
Let me determine the merit of this argument.
There is no doubt that the trial court erred by failing to refer and consider the arguments in the appellant’s reply on points of law at the trial. But the appellant failed to show how this error prejudiced him or caused a miscarriage of justice in the sense that the judgment would have been different but not for the error. The new points the appellant alleged were raised in the 1st respondent’s final written address and to which the reply on points of law responded, were not stated by the appellant, except the point that exhibit 11 is a confessional statement. Without pointing out the new points argued in the 1st respondent’s address and which the reply on points of law addressed, the appellant failed to show that the failure to consider the argument in the reply on those points robbed him the opportunity of being heard on those points. It is not in dispute that the appellant’s final written address and that of the 1st respondent were considered by the Trial Court and the issues raised for determination in those addresses were determined by the Trial Court.

The issue of the nature of Exhibit 11 as a confessional statement which the appellant argued in the reply on point of law, was raised and argued as issue No. 4 in his brief in this appeal. The determination of that issue in this judgment show that even if the error was not made, the judgment of the Trial Court would have been the same. It is glaring from the judgment of the Trial Court that the characterisation or description of Exhibit 11 as a confessional statement had no bearing or influence on the determination of the merit of the case. The Trial Court simply relied on the appellant’s admissions of certain facts in Exhibit 11 as relevant evidence in determining the merit of the case.

Let me now consider issue No. 6 which asks “Whether considering the legal status of Fine Trust Academy, the Trial Court was right in convicting the Appellant on Count 2 of the Charge, which is causing the title documents of Plot SS1 Jikwoyi Extension III belonging to Fine Trust Academy (a non-juristic person) to be issued in favour of Pax Education Resources Limited.“

I have carefully read and considered the arguments of both sides on this issue.

I agree with the arguments of Learned Counsel for the 1st respondent, that the legal status of Fine Trust Academy and the validity of the 1997 allocation of plot SS1 Jikwoyi Extension III to it was not in issue at the trial and was never decided by the Trial Court. What was in issue at the Trial Court was the allocation of the same plot SS1 Jikwoyi Extension III to Pax Education Resources that did not apply for the allocation of the plot to it and after it had three years before been allocated to Fine Trust Academy.

Therefore, this issue and the argument there under are incompetent and are hereby struck out.
Issue No. 6 is resolved in favour of the 1st respondent.

The 1st respondent filed a respondent’s notice to vary the sentence imposed on the appellant by the Trial Court on the grounds stated therein. It is obvious that the respondent is not seeking a reversal of the part of the judgment of the Trial Court that sentenced the appellant and is rather seeking a variation of the sentence by a longer custodial term. In civil appeals before this Court, by virtue of Order 9 Rule 1 of the Court of Appeal Rules 2016, a respondent’s notice to vary is the appropriate process to use in this kind of situation in which the respondent to an appeal is seeking the variation and not a reversal of the part of the judgment granting a remedy. In criminal appeals before this Court no provision is made in the Court of Appeal Rules 2016 or other law for the use of respondent’s notice. Therefore, a respondent who desires a variation of any part of the judgment appealed against should file a cross-appeal as a person desiring to appeal against any judgment, sentence or order of the Court below by virtue of Order 17 Rule 3(1) of the Court of Appeal Rules 2016. Therefore the respondent’s notice filed by the respondent is not valid for consideration. It is hereby struck out along with the arguments based on it.
On the whole, this appeal fails as it lacks merit, it is accordingly dismissed.

ABDU ABOKI, J.C.A.: I had a preview of the lead judgment just delivered by my learned brother Emmanuel Akomaye Agim J.C.A, I am in agreement with his reasoning and conclusion reached therein.
I also abide by the consequential order(s) as contained in the lead judgment.

MOHAMMED BABA IDRIS, J.C.A.: I have had the benefit of reading in draft the lead judgment of my learned brother, Emmanuel Akomaye Agim, JCA, just delivered. I agree with the reasoning and conclusion reached. I do not have anything useful to add. I abide by all the orders made therein.

Appearances:

D.D. DODO, SAN with Terhemba Gbashima, Esq., Festus Jumbo, Esq., Sampson E. Esq., Venesa Akinboro Esq., Reuben Kinya, Esq. For Appellant(s)

Adesola Michael Esq., for 1st Respondent

Paul O. Eseinmomoh Esq., for the 2nd Respondent For Respondent(s)