SGT. MONDAY YAKUBU v. THE STATE
(2011)LCN/4475(CA)
In The Court of Appeal of Nigeria
On Thursday, the 14th day of April, 2011
CA/A/245/C/2008
RATIO
CRIMINAL TRIALS: WHETHER IT IS THE DUTY OF THE PROSECUTION TO PROVE ALL THE INGREDIENTS OF THE OFFENCES CHARGED BEYOND REASONABLE DOUBT
It is trite law that in a criminal trial, the onus is always on the Prosecution to prove all the ingredients of the offences charged beyond reasonable doubt. See the following:- Section 138 of the Evidence Act, Laws of the Federation Cap 112 1990; – Obiakor v. The State (2002) 6 SCNJ Page 193 at 2002; – The State vs. Aibagbee (1988) 7 S. C. Part 1 Page 96 at 132-133. PER JIMI OLUKAYODE BADA, J.C.A
PROOF BEYOND REASONABLE: WHETHER PROOF BEYOND REASONABLE DOUBT MEANS PROOF BEYOND ANY SHADOW OF DOUBT
Even though it is the duty of the Prosecution to prove its case beyond reasonable doubt, this however does not mean proof beyond any shadow of doubt. See:- Aiguorewahian & Another vs. The State (2004) 1 SCNJ Page 56. PER JIMI OLUKAYODE BADA, J.C.A
CONSPIRACY: MEANING OF CONSPIRACY ; WHAT THE PROSECUTION MUST ESTABLISH TO PROVE THE OFFENCE OF CONSPIRACY
Conspiracy is the agreement of two or more persons to do an unlawful act by unlawful means. The two or more persons must be found to have combined in order to ground conviction for conspiracy. It follows that for the offence of conspiracy to be in existence the following must be established:- (a) There must be a consent of two or more persons, (b) There must be an agreement which is an advancement of an intention conceived in the mind of each person secretly i.e. mens rea. (c) The secret intention must have been translated into an overt act or omission or mutual consultation and agreement i.e. actus reus. See the following cases:– Mohammed v. The State (1991) 5 NWLR Part 192 Page 438;- Iden v. The State (1994) 8 NWLR part 365 page 719. PER JIMI OLUKAYODE BADA, J.C.A
CONFESSIONAL STATEMENT: WHAT A CONFESSIONAL STATEMENT ENTAILS
A Confessional Statement is in law one in which the person alleged to have made the statement admits unequivocally in the statement that he committed the offence he is charged with. PER JIMI OLUKAYODE BADA, J.C.A
CONSPIRACY: HOW TO PROVE THE OFFENCE OF CONSPIRACY
The proof of conspiracy is generally a matter of plausible inference deduced from certain criminal acts of the accused done in pursuance of an apparent criminal purpose in common between them. This is because it is generally recognized in law that in a charge of Conspiracy, proof of actual agreement which is an essential ingredient of the crime is not always easy to come by. Thus the fact that there is no positive evidence of any agreement between the accused persons to commit the offence is not enough to hold that the Prosecution cannot establish the charge of conspiracy. See the following cases:- – Usufu v. The State (2007) 3 NWLR Part 1020 Page 94;- Oyakhire v. The State (2006) 15 NWLR part 1001 page 157;- Alarape v. The State (2001) 5 NWLR part 705 Page 79. The Court can infer a conspiracy and convict on it if it is satisfied from the evidence that the Accused person pursued, by their acts, same object, and performing one part of the act and the other part of the same act so as to complete their unlawful design. PER JIMI OLUKAYODE BADA, J.C.A
EVIDENCE OF CO-ACCUSED: WHETHER THE FACT THAT AN EVIDENCE INCRIMINATING AN ACCUSED WAS ADDUCED BY A CO-ACCUSED WILL PREVENT THE EVIDENCE FROM BEING CREDIBLE AND RELIABLE
In the case of:– Michael vs. The State (2008) 13 NWLR Part 1104 at 383, It was held among others that:- “The fact that evidence incriminating an accused was adduced by a Co-accused does not prevent the evidence from being credible and reliable provided that the accused who adduced the evidence was tried with the other accused persons.” PER JIMI OLUKAYODE BADA, J.C.A
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria
Between
SGT. MONDAY YAKUBU – Appellant(s)
AND
THE STATE – Respondent(s)
JIMI OLUKAYODE BADA, J.C.A (Delivering the Leading Judgment): This is an appeal against the Judgment of the High Court of Justice, Egbe, Kogi State in Charge No. HCL/18C/2002 – The State v. Sgt. Monday Yakubu & 4 Others delivered on the 11th day of May 2005.
The Appellant and 4 Others were charged for the offences of:-
(i) Criminal conspiracy, contrary to Section 93.
(ii) Culpable homicide, punishable with death contrary to Section 221 (a); and
(iii) Armed robbery contrary to Section 298(b) all of the Penal Code.
At the trial, the Prosecution called a total of 9 witnesses and tendered 29 exhibits.
The Appellant who was the 1st Accused at the lower Court challenged the voluntariness of the additional statement that he made to the Police. A trial within trial was ordered by the learned trial Judge. Two witnesses gave evidence for the Prosecution while the Appellant gave evidence at the trial within trial. In a considered Ruling, the learned trial Judge admitted the statements.
At the conclusion of the main trial the Appellant was found guilty of the offence of criminal conspiracy and he was convicted and sentenced to 10 years imprisonment in the Judgment delivered on 11th May 2005.
The Appellant being dissatisfied with the Judgment now appealed to this Court.
The learned Counsel for the Appellant formulated two issues for determination of the appeal and they are set out as follows:-
“(i) Whether from the legally admissible evidence adduced at the trial, the Prosecution had proved its case against the Appellant beyond reasonable doubt? (Grounds 1, 2, 3, 5 and 6 of the Notice and Grounds of Appeal.)
(ii) Whether the failure by the learned trial Judge to fully comply with the Provisions of Section 191 of the Criminal Procedure Code has not rendered the entire trial a nullity? (Ground 9 of the Notice and Grounds of Appeal.)”
The learned Counsel for the Respondent on the other hand formulated two issues for determination of the appeal, they are set out as follows:-
”(i) Whether from the totality of the evidence adduced at the trial Court, the prosecution has proved its case against the Appellant beyond reasonable doubt.
(ii) Whether the learned trial Judge fully complied with Section 191 of the Criminal procedure Code.”
At the hearing in this Court learned Counsel for the Appellant referred to Appellant’s Brief of Argument filed on 25/3/2010 and the Appellant’s Reply Brief of Argument filed on 31/1/2011.
He adopted the two Briefs of Argument as his argument in this appeal and urged that the appeal be allowed.
The learned Counsel for the Respondent also referred to the Respondent’s Brief of Argument deemed filed on 18/1/2011. She adopted the said brief as her argument in this appeal.
The issues for determination formulated by counsel for the parties in this appeal are similar, however, I will rely on the issues as set out in the Appellant’s Brief of Argument in the determination of this Appeal.
ISSUE NO. 1
Whether from the legally admissible evidence adduced at the trial, the prosecution had proved its case against the Appellant beyond reasonable doubt?
The learned counsel for the Appellant stated that the Appellant was charged with conspiracy to commit the offence of armed robbery on the premises of Ise-Oluwa sawmill, Egbe, Kogi State. He submitted that it is incumbent on the Prosecution to establish that there was an agreement between the Appellant and his Co-accused to rob the said Sawmill. He relied on the following cases:-
-Waziri v. The State (1997) 3 NWLR Part 496 page 689 at 723 Paragraph H.
-Emeka v. State (1998) 7 NWLR part 559 page 556 at 585 Paragraph B-A.
He submitted that there was no evidence to establish conspiracy before the trial Court. He went further in his submission that the learned trial Judge was wrong to have treated Exhibits 26A – 26B, 27, 28A, 28B and 29 as Confessional Statements. A confessional statement according to him is one in which the person alleged to have made the statement admits unequivocally in the statement that he committed the offence he is charged with. He relied on the following cases:-
-Fatilewa v. The State (2007) 6 WRN page 41 at 57 line 15 – 25.
-Gbadamosi v. The State (1992) 9 NWLR part 266 page 465 at 479 paragraphs A-B;
-Nwobe v. The State (2000) 11 NWLR part 678 page 271 at 279 paragraph E.
The learned Counsel for the Appellant submitted that the Appellant did not admit that he committed the offences alleged against him in the 1st and 2nd Statements he made to the police.
It was submitted on behalf of the Appellant that the treatment of the said extra judicial statements as confessional statements by learned trial Judge have occasioned a miscarriage of Justice in that the learned trial Judge completely ignored Exhibit 19 where the Appellant stated that he believed that the Engine at Egbe belonged to Kayode.
Learned Counsel went further that assuming, though not conceding that Exhibit 25, 26A – 26B, 27, 28A and 28B and 29 were confessional in nature, the said Exhibits are inadmissible against the Appellant. He relied on Section 27(3) of the Evidence Act.
He relied on the following cases:-
-Ogiri & Another v. The State (1978) NWLR page 1 at page 5;
-Chukwueke v. The State (1991) 7 NWLR part 205 page 604 at 616 paragraph D-E and at 617 – 618 paragraphs G-A.
He also submitted that where an accused makes a statement amounting to a confession of both the offence charged in the indictment and of other offences, the statement will be inadmissible. He relied on the following cases:-
– R. vs. Thomas (1958) NSCC Page 22;
– R. vs. Otedia (1959) WNLR Page 43.
He stated that the failure of the learned trial Judge to consider the defence of the Appellant on Page 149 line H of the record that he was informed that the engines belong to Kayode is fatal. He submitted that if the learned trial Judge had considered this evidence, he would have arrived at the conclusion that the Appellant did not know that he was going on a stealing expedition with the other accused persons. He went further in his submission that a Court is bound to consider any defence raised by a person accused of a crime no matter how weak, or stupid it may be. He referred to the case of:-
-Uwaekweghinya v. The State (2005) 9 NWLR Part 930 Page 227 at 248 Paragraphs A – B.
It was also submitted on behalf of the Appellant that the evidence of PW1, PW2, PW3, and PW4 are not sufficient to establish that the Appellant had conspired to rob the Sawmill.
He referred to the case of:-
– Nwuguru v. The State (1991) 1 NWLR Part 165 Page 41 at 49 Paragraphs A – D.
The learned Counsel for the Appellant stated that the fact that the Appellant drove from Lagos to Egbe is of itself no evidence of Criminal Conspiracy. And for there to be Conspiracy, there must be evidence that the Appellant was aware that the purpose of his trip from Lagos to Egbe was for the purpose of committing a crime.
It was finally submitted on behalf of the Appellant that legally admissible and credible evidence was not adduced by the Prosecution to establish the case of Criminal Conspiracy against the Appellant.
The learned Counsel for the Respondent in her submission stated that the Prosecution has proved the case against the Appellant beyond reasonable doubt.
She submitted further that it is not in all cases that direct proof of conspiracy is required. Proof can be inferred from overt acts of the accused persons. She relied on the case of:-
– Omotola v. The State Vol. 37 Part 2 NSCOR Page 963 at 1011.
It was also submitted that the Conspirators need not know themselves or be seen together planning the offence. Reference was made to the following cases:-
– Nwosu v. The State (2004) 15 NWLR Part 897 Page 460 at 468;
– Chike v. The State (1996) 6 NWLR Part 455 Page 465 at 476.
The learned Counsel for the Respondent referred to the statement of the Appellant i.e. Exhibits 19 and 25 where he stated that he was a driver at the Defence Headquarters Lagos and that 7 boys were detailed to follow him to Kogi State for the purpose of carrying away an engine. The Appellant also admitted that his journey as the driver of the Army TATA Truck DHQ 154 was unauthorized as his office and other officers never gave him permission to embark on same.
She submitted that it can be inferred that the role of the Appellant was to receive the machines or engines which the other accused had gone to remove from the Sawmill and then facilitate their joint escape since he was the driver to the army truck. Reference was also made to the evidence of PW2 as contained on Page 11 of the Record of Appeal lines 6 – 11. PW2 stated that one of the machine wheels which had been loosened was rolled away towards the army vehicle.
In the Appellant’s Reply Brief of Argument, it was submitted by the learned Counsel that Exhibits 19 and 25 cannot be said to be a confession to the offences alleged against the Appellant. He relied on the case of:-
– Gbadamosi v. The State (Supra)
It was also submitted on behalf of the Appellant that mere presence of the Appellant at the scene of crime is not enough to lead to the inference of guilt.
It is trite law that in a criminal trial, the onus is always on the Prosecution to prove all the ingredients of the offences charged beyond reasonable doubt. See the following:-
– Section 138 of the Evidence Act, Laws of the Federation Cap 112 1990;
– Obiakor v. The State (2002) 6 SCNJ Page 193 at 2002;
– The State vs. Aibagbee (1988) 7 S. C. Part 1 Page 96 at 132-133.
Even though it is the duty of the Prosecution to prove its case beyond reasonable doubt, this however does not mean proof beyond any shadow of doubt. See:-
– Aiguorewahian & Another vs. The State (2004) 1 SCNJ Page 56.
As stated earlier in this Judgment, the Appellant was the 1st Accused at the trial Court and charged along with four others for the offences of Conspiracy, Culpable homicide, and armed robbery punishable under Sections 97, 221(a) and 298(b) of the Penal Code.
At the end of trial the Appellant was found guilty of criminal conspiracy he was convicted and sentenced to 10 years imprisonment.
One may then ask the question – What is Conspiracy?
Conspiracy is the agreement of two or more persons to do an unlawful act by unlawful means. The two or more persons must be found to have combined in order to ground conviction for conspiracy.
It follows that for the offence of conspiracy to be in existence the following must be established:-
(a) There must be a consent of two or more persons,
(b) There must be an agreement which is an advancement of an intention conceived in the mind of each person secretly i.e. mens rea.
(c) The secret intention must have been translated into an overt act or omission or mutual consultation and agreement i.e. actus reus.
See the following cases:-
– Mohammed v. The State (1991) 5 NWLR Part 192 Page 438;
– Iden v. The State (1994) 8 NWLR part 365 page 719.
It has been contended on behalf of the Appellant that the learned trial Judge was wrong to have treated the statements of the Accused and the Others as Confessional Statement. Particular reference was made to Exhibits 26A to 26B, 27, 28A, 28B and 29.
Part of the Statement of the Appellant on Page 31 of the Record of Appeal reads:-
“……………………………..
On 5/5/2001 at about 0.500 hrs after a marriage ceremony one Kehinde whom I don’t know his second name but known through one Sergeant Peter who is presently in Abuja Logistics DHQS. Immediately after the marriage, the said Kehinde begged me to follows him with Army truck to somewhere in Kwara State to carry an engine. I bargained with Kehinde on =N=20,000.00 which he paid cash before I commenced the journey. We arrived at a certain place later known as Egbe at about 2.45 hrs in the midnight. Kehinde did not follow us to Kogi State but detailed about 7 boys with me and these three boys were part of them who were to load…………..”
A Confessional Statement is in law one in which the person alleged to have made the statement admits unequivocally in the statement that he committed the offence he is charged with.
A careful examination of the statements made by the Appellant and admitted in the lower Court as Exhibit 19 now on Page 31 of the record and Exhibit 25 now on Page 32 of the record showed that they are not Confessional Statements to the offence with which the Appellant is charged.
The learned Counsel for the Appellant argued that the treatment of the said extra judicial statement as confessional by the learned trial Judge has occasioned a miscarriage of Justice in that the trial Judge had ignored the defence of the Appellant.
I do not agree with the submission of the learned Counsel for the Appellant in view of the decision of the Supreme Court in the case of:-
– Gbadamosi vs. The State (Supra) where it was held among others that:-
“Exhibit J was incorrectly regarded as a confession. It was otherwise properly admitted, its voluntary nature not being objected to. In my view therefore the question of totally expunging Exhibit J from the record cannot arise. What is objectionable, and cannot be allowed is any decision arrived at which appears to be based on the document being regarded as a confession. The answer to the first issue as set out therefore is that a statement wrongly admitted as a confessional statement can, if it has no other defects, be admitted as an ordinary statement and be relied upon such, as a basis for conviction.”
Based upon the above decision of the Apex Court, Exhibits 19 and 25 could be treated as ordinary statements and be relied upon by the Court.
The proof of conspiracy is generally a matter of plausible inference deduced from certain criminal acts of the accused done in pursuance of an apparent criminal purpose in common between them. This is because it is generally recognized in law that in a charge of Conspiracy, proof of actual agreement which is an essential ingredient of the crime is not always easy to come by. Thus the fact that there is no positive evidence of any agreement between the accused persons to commit the offence is not enough to hold that the Prosecution cannot establish the charge of conspiracy. See the following cases:-
– Usufu v. The State (2007) 3 NWLR Part 1020 Page 94;
– Oyakhire v. The State (2006) 15 NWLR part 1001 page 157;
– Alarape v. The State (2001) 5 NWLR part 705 Page 79.
The Court can infer a conspiracy and convict on it if it is satisfied from the evidence that the Accused person pursued, by their acts, same object, and performing one part of the act and the other part of the same act so as to complete their unlawful design.
In this case under consideration the Prosecution’s case was that the Appellant was seen in the Army Tata Truck at the entrance to the Ise-Oluwa Sawmill, Egbe, Kogi State, while the 2nd, 3rd, 4th and 5th Accused persons went into the Ise-Oluwa Sawmill, Egbe, Kogi State to carry out murder and robbery.
On the other hand, the Appellant in his own statements Exhibits 19 and 25 stated that he was a driver at the Defence Headquarters, Lagos and that 7 boys were detailed to follow him to Kogi by one Kehinde for the purpose of carrying away an engine. He admitted that his journey was unathourised by his office.
The Appellant and the other Accused persons admitted in their statements that they embarked on the journey from Lagos to Egbe. And that they arrived at the Ise-Oluwa Sawmill, Egbe, Kogi State at about 02.45 hrs in the midnight.
It could be inferred that the role of the Appellant was to receive the machines or engines which the other Accused persons have removed from the Sawmill and then facilitate their joint escape as the driver to the Army truck.
The statements of the other Co-accused persons in Exhibit 26A-26B, 27, 28A- 28B and 29 buttressed the fact that they all had a common intention to commit a crime.
In the case of:-
– Michael vs. The State (2008) 13 NWLR Part 1104 at 383,
It was held among others that:-
“The fact that evidence incriminating an accused was adduced by a Co-accused does not prevent the evidence from being credible and reliable provided that the accused who adduced the evidence was tried with the other accused persons.”
It is also striking and disturbing that the activities of the Appellant and other Co-accused were carried out around 02.45 a.m. in the midnight and this showed that their actions are questionable and illegal since it could not be carried out during the day time.
Furthermore, the Appellant mentioned Sergeant Peter and one Kehinde in his statements to Police i.e. Exhibits 19 and 25 but did not call them to confirm his statement.
On the whole, it is my view that the Prosecution has proved the case of Criminal Conspiracy against the Appellant beyond reasonable doubt.
This Issue is hereby resolved in favour of the Respondent against the Appellant.
ISSUE NO. 2
Whether the failure by the learned trial Judge to fully comply with the Provisions of Section 191 of the Criminal Procedure Code has not rendered the entire trial a nullity? (Ground 9 of the Notice and Grounds of Appeal.)
Learned Counsel for the Appellant stated that according to Section 191 of the Criminal Code, at the end of the case for the prosecution, a trial Court shall, after informing the accused that he is not obliged to answer any question, ask him such questions that will:-
(i) Help to discover his line of defence having regards to the particular points in the case for the prosecution which he has to meet.
(ii) If he wishes to give evidence on his own behalf, and
(iii) If he means to call witnesses.
He relied on the case of:-
– Agoma Achaji & Others vs. C.O.P. (1963) NWLR Part 74 at 75.
He went further in his argument that at the end of the case for the prosecution, the learned trial Judge recorded as follows:-
“Court to the Accused Persons
Do you want to give evidence or do you want to rely on all the prosecution has stated.
After interpreting it to the Accused persons, the first Accused stated that-
“I have not (sic) additional statement to make to what I have already stated in the trial within trial.”
Learned Counsel for the Appellant submitted that the learned trial Judge had failed to examine the Appellant to determine his line of defence, he failed to explain to the Appellant what aspect of the Prosecution’s case that he had to meet, he equally failed to ask the Appellant if he wished to call any witness.
He relied on the following cases:-
– Josiah v. The State (1985) 1 NWLR Part 1 Page 125 at 130 Paragraphs D – G;
– Auzinawa v. Kano N. A. (1956) NSCC page 27 at 28.
He went further in his submission that a careful look at the entire trial would reveal that the Appellant did not have a fair trial as the learned trial Judge failed to avail the Appellant the opportunity to call witness and consequently, he has suffered a miscarriage of Justice.
He submitted that the Appellant is entitled to have the Judgment against him set aside.
He relied on the following cases:-
– Josiah vs. The State (Supra);
– Saka vs. The State (1981) NSCC Page 474.
It was also submitted on behalf of the Appellant that since Counsel for the Appellant did not make any statement on behalf of the Appellant, the presence of Counsel at the trial will not save the proceedings.
He relied on the case of:-
– Ladan vs. C.O.P. (1969) NNLR Page 68 at 70.
He also urged this Court not to order a retrial but to discharge the Appellant. He said that the principle for retrial has been laid down in the case of:-
– Abodundu vs. R. (1959) NSCC Page 56 at 60.
He finally urged this Court to allow this appeal and acquit the Appellant.
The learned Counsel for the Respondent in response to the submission of learned Counsel for the Appellant stated that the circumstances envisaged by the Sections 191 and 235(1) – (4) of the Criminal Procedure Code and cases cited by learned Counsel by Counsel for the Appellant are those in which Accused persons are not represented by a legal practitioner, but that the Appellant and his Co-accused were represented by Counsel throughout the trial until Judgment was delivered.
She submitted that assuming, there were technical irregularities, that same cannot avail the Appellant. She went further that for such technicalities to avail the Appellant, it must be shown to be substantial. She relied upon the following cases:-
– Odeh vs. FRN (2008) 13 NWLR Part 1103 Page 1 at Page 35;
– Adebayo v. A. G. Ogun State (2008) NWLR Part 1085 Page 201 at 214.
The Appellant in his Reply Brief of Argument reiterated his earlier submissions in the Appellant’s Brief.
Sections 191, 235 and 296 of the Criminal Procedure Code deals with the procedure to be followed by a trial Court, where at the end of a case for the prosecution the accused has a case to answer.
Section 191 of the Criminal Procedure Code states thus:-
“191(1) After reading of the examination of the accused in accordance with the Provisions of Section 190, the accused may be examined as provided in Section 235 and he shall then be asked:-
(a) Whether he wishes to give evidence on his own behalf as provided in Section 235 and
(b) Whether he means to call witnesses other than to character.
Section 235 also provides thus:-
“235(1) For the purpose of enabling the accused to explain any circumstances appearing in the evidence against him, the accused so agrees, at any stage of an inquiry or trial, after explaining to the accused the effect of Subsections (2) and (3), put such questions to him as the Court considers necessary and in such case shall for the purpose aforesaid question him generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence.
(2) ……..
(3) ……..
(4) The sole purpose of such examination shall be to discover the line of defence and to make clear to the accused the particular points in the case for the prosecution which he has to meet in his defence and there shall be nothing in the nature of a general cross-examination for the purpose of establishing the guilt of the accused.”
The learned Counsel for the Respondent submitted that the circumstances envisaged by the sections of the Criminal Procedure Code referred to above and cases cited by the learned Counsel for the Appellant are those in which Accused/Persons are not represented by a legal practitioner, so as not to put them at a disadvantage. I agree with her on this point.
In this Appeal under consideration, the Appellant and his other Co-accused were represented by Counsel throughout the trial until Judgment was delivered. And a careful examination of the Appellant’s Statement to the Court on page 113 lines 1 – 14 would reveal that the Appellant had no intention of giving evidence or calling any witness. Even if there were irregularities, it must be shown to be substantial before a Court can look into it.
In the case of Cyril Udeh vs. The State (2001) 2 ACLR Page 356 to 360 OR (1999) 7 NWLR Part 609 Page 1, the Supreme Court per Iguh JSC held that:-
“The law is well settled that where as in the present case, irregularity has been alleged in a trial, the burden is on the Appellant to establish that the alleged irregularity has led to substantial miscarriage of Justice. Where the Appellant does not show that the presumption of irregularity has led to a miscarriage of Justice, it will be assumed that there was none. See – Peter Lockman and Another v. State (1972) 5 S. C. page 22.”
Even though the learned trial Judge may not have fully complied with Section 191(1)(a) & (b) of the Criminal Procedure Code, but the fact that the Appellant answered the question put to him by the Court diligently and he was represented by a Counsel at the trial, therefore this will be taken as sufficient compliance with the said Section.
All that the Appellant in this appeal did was to hide under the guise of technicality in order to escape the punishment which he really deserved for the offence which he actually committed. Technicalities cannot avail the Appellant as Justice Dispensation on the pedestal of technicalities is no longer fashionable. In any criminal trial, sustenance of Justice and fair hearing are fundamental, and where the trial Court is satisfied that the prosecution has proved its case beyond reasonable doubt as required by the law and the Accused has responded to the questions put to him by the Court appropriately then the issue of lack of fair hearing leading to miscarriage of Justice will not arise.
Consequent upon the foregoing, it is my view that the Appellant was rightly convicted and sentenced by the lower Court for offence of Criminal Conspiracy.
This Issue No. 2 is also resolved in favour of the Respondent.
In the result, this Appeal lacks merit and it is hereby dismissed. I affirm the decision of the lower Court.
MOHAMMED LAWAL GARBA, J.C.A: I have read in draft, the lead judgment in this appeal written by my learned brother Bada, JCA. The issues that require decision in the appeal have been thoroughly considered in the lead judgment and all the views expressed and conclusions reached on them are the same with mine. I therefore agree that for all the reasons set out in the lead judgment which I adopt, this appeal deserves to be dismissed for being bereft of merit. It is dismissed by me too and the judgment of the Kogi State High Court delivered on the 11/5/2005 in Charge No. HCL/18C/2002 is affirmed accordingly.
PAUL ADAMU GALINJE, J.C.A: I have read before now the judgment just delivered by my learned brother, Bada JCA and I agree with the reasoning contained therein and the conclusion arrived thereat.
On the same reasons articulated in the lead judgment which I adopt as mine, this appeal is hereby dismissed by me.
Appearances
MR. A. M. ALIYUFor Appellant
AND
MRS. R. A. ALFA (Acting Director, Ministry of Justice Kogi State) with her is IDAMA Esq.For Respondent
