NWOKEBI CHIWOBI v. FEDERAL REPUBLIC OF NIGERIA (2019)

NWOKEBI CHIWOBI v. FEDERAL REPUBLIC OF NIGERIA

(2019)LCN/12992(CA)

In The Court of Appeal of Nigeria

On Friday, the 29th day of March, 2019

CA/IB/29C/2017

JUSTICES:

JIMI OLUKAYODE BADA Justice of The Court of Appeal of Nigeria

HARUNA SIMON TSAMMANI Justice of The Court of Appeal of Nigeria

FOLASADE AYODEJI OJO Justice of The Court of Appeal of Nigeria

Between

NWOKEBI CHIWOBI – Appellant(s)

AND

FEDERAL REPUBLIC OF NIGERIA – Respondent(s)

RATIO

WHETHER OR NOT WHERE A MATTER IS TRANSFERRED TO ANOTHER JUDGE OR COORDINATED WITHIN THE SAME JURISDICTION, THE PROCEEDINGS HAVE TO START ANEW OR AFRESH

It is trite law that where a matter or case is transferred to another Judge of Coordinate or within the same jurisdiction, the proceedings has to start anew or afresh. In other words, proceedings have to start de novo. It therefore means that, where a case is transferred to another Judge the Judge to whom the matter is transferred has to start the case de novo or afresh irrespective of the previous orders made by his predecessor. See Omisore v. The State (2005) 12 NWLR (pt.940) 591 and Bamaiyi v. The State (2006) 12 NWLR (pt.994) 221. Thus, in the case of Babatunde v. P.A.S & T. (2007) LPELR 698 (SC) the Supreme Court held that:
a trial de novo could mean nothing more than a new trial. This further means that the Plaintiff is given another chance to re-litigate the same matter or rather in a more general sense, the parties are at liberty, once more to reframe their cases and restructure it as each may deem it appropriate.
The legal consequence is that, all pending proceedings including orders made previously by the former Judge are regarded as having abated or having been spent. They are rendered nugatory. All previous proceedings and orders having been rendered nugatory, it means that there is no valid and existing proceeding howbeit order which can be said to have been reviewed by the Judge to whom the matter was transferred. In that respect, Mohammed, J could not have been said to be caught by the legal effect or principles of functus officio with regards to the competence of the charge. It should be noted that the order of Ogunbanjo, J on the competence of the original charge was final. However, before the same Judge, the original charge was amended and when the case was transferred to A.T. Mohammed, J, the amended Charge was further amended. Thus, the charge upon which the Appellant was arraigned, tried and convicted was the Further and Better Amended Charge. It is therefore my view that with the subsequent amendments to charge, the order of F.O.G. Ogunbanjo, J was rendered irrelevant. In other words, the order of Ogunbanjo, J could no longer be sustained. PER TSAMMANI, J.C.A.

THE PRESUMPTION OF INNOCENCE OF AN ACCUSED PERSON

Now, Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) stipulates that, every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty. By this Constitutional provision therefore, the prosecution is required to adduce credible evidence which establishes every ingredient of the offence charged. The quantum and quality of the evidence must be such that it proves the offence charged beyond reasonable doubt. Accordingly, where all or any one of the essential elements are or is not established by the totality of the evidence adduced, the offence charged has not been proved beyond reasonable doubt. In that case, the accused person would be entitled to an acquittal. See Sections 131 and 132 of the Evidence Act, 2011 and also the cases of Yusuf v. FRN (2017) LPELR 43830 (SC); Taiye v. State (2018) LPELR 44466 (SC) and Ugboji v. State (2017) LPELR 43427 (SC).
The burden of proof is always on the prosecution and never shifts save where the law specifically casts the burden on the accused to prove particular facts. It therefore means that, there is no onus on the accused person to prove his innocence. See Stephen v. State (2009) 4 FWLR (pt.492) 8153; Chianugo v. State (2001) LPELR 7006 (CA) and Musa v. State (2014) LPELR 24026 (CA). The guilt of the accused person can therefore be established by any one or all of the following ways:
(a) The confessional statement of the accused which is direct, positive and properly proved in Court;
(b) By circumstantial evidence which is cogent, compelling and points to only one conclusion that the accused committed the offence;
(c) By direct evidence of either an eye witness who saw when the offence was committed or the evidence of the victim of the offence.
In all these circumstances, the evidence adduced must be capable of proving the offence beyond reasonable doubt. See Osetola v. State (2012) LPELR 9348 (SC); Alabi v. State (1993) 7 NWLR (pt.307) 311 and Nigerian Navy & Ors v. Lambert (2007) LPELR 2026 (SC). PER TSAMMANI, J.C.A.

WHETHER OR NOT AN ACCUSED MUST BE GIVEN NOTICE AND OPPORTUNITY TO RESPOND TO BE VALIDLY CONVICTED FOR AN OFFENCE

The law that for an accused person to be validly convicted for an offence other than that for which he is charged, he must have notice and given the opportunity to respond is in accord with the protection guaranteed by Section 36(6)(b) of the Constitution of the Federal Republic of Nigeria 1999. This Section of the Constitution provides that a person who is charged with a criminal offence shall be entitled to be given adequate time and facilities for the preparation of his defence.
The above position has been subjected to judicial interpretation in the case of IDOKO VS THE STATE (2018) 6 NWLR (PT, 1614) 117 AT PG. 139 PARAGRAPHS DG where the Supreme Court per Eko JSC held as follows:
The dictum of the Privy Council in Kandy V. Government of Malaya (1962) AC 322 further illustrates the importance of audi alteram partem in fair hearing. At page 337 of the report the law lords stated: If the right to be heard is to be a real right which is worth anything, it must carry with it the right in the accused to know the case which is made against him.
The proof of evidence must contain the statements of the witnesses to testify against him and any other evidential materials to be used against him in the bid of the prosecutor to prove the allegation or the charge against him beyond reasonable doubt. This is what it means when it is said that the accused person must be given full opportunity of exculpating himself. Ademola, C.J.N. in Adedeji v. Police Service Commission (1967) 1 All NLR 67; (1968) NMLR 102, (1967) SCNLR 102, citing with approval Kandy V. Government of Malaya (supra) stated the law on this thus-
The accused person must know the name of his accuser and all what he said about him before it could be said that he was given a full opportunity of exculpating himself. Section 36(6)(a) & (b) of the 1999 Constitution demand no less in the provisions to wit:
(6) Every person who is charged with a criminal offence shall be entitled to
(a) to be informed promptly in the language that understands and In detail of the nature of the offence;
(b) to be given adequate time and facilities for the preparation of his defence.
The right conferred on the accused person by Section 36(6)(a) & (b) of the Constitution is not a cosmetic or fanciful right, It is for real.” PER OJO, J.C.A.

HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the Federal High Court sitting in Abeokuta, Coram A. T. Mohammed, J, delivered on the 14th day of September, 2016.

The Appellant who was the 2nd Accused person in Charge No: FHC/AB/20C/2014 was arraigned with one other person on a three counts charge of conspiracy contrary to Section 3(6) of the Miscellaneous Offences Act, Cap. M17 Laws of the Federation of Nigeria, 2004; dealing in Petroleum Product without lawful authority contrary to and punishable under Section 1(17)(a) and (b) of the Miscellaneous Offences Act (supra) and Storing Petroleum Product without a licence granted by the Minister contrary to Section 4(1) and punishable under Section 4(6) of the Petroleum Act Cap. P10, Laws of the Federation of Nigeria, 2004. It should be noted that the Appellant was specifically charged on Counts 1 and 2 only.

The facts of the case briefly, are that, on the 27th day of March, 2014, the Appellant and one other were arrested at the house of the co-accused (1st accused), in Lukosi Village, Ogijo in the Sagamu Local Government Area of

Ogun State for committing the offences of conspiracy and dealing in Petroleum Products without lawful authority. Upon arraignment, the Appellant pleaded not guilty to the two counts upon which he was charged. The case then went to trial with the prosecution calling four (4) witnesses who testified as the P.W.1, P.W.2, P.W.3 and P.W.4. The Appellant testified in defence but called no other witness. The prosecution also tendered several documents and other items which were admitted in evidence and marked as Exhibits A1 N2 respectively while the defence tendered Exhibits O and P. Parties then filed, exchanged and adopted their Written Addresses, and in a considered judgment delivered on the 14th day of September, 2016; the trial Court found that the allegations on the charges against the Appellant were not proved, but found him guilty of aiding the co-accused to deal in petroleum product contrary to law. The Appellant was consequently convicted and sentenced to two (2) years imprisonment without option of fine. Being aggrieved by the decision, the Appellant instituted this appeal.

The Notice of Appeal consisting of four (4) Grounds of Appeal was dated the 01/12/2016 and filed on the 02/12/2016. Consequently, parties filed and exchanged Briefs of Arguments as required by the rules of this Court. The Appellants Brief of Arguments dated the 15/3/2017 was filed on the 16/3/2017. Therein, three (3) issues were distilled for determination as follows:
1. Whether the learned trial Judge was right when he set aside all proceedings challenging the competence of the charge brought under the Miscellaneous Offences Act on the ground that the case was transferred to his Court and ought to start de novo notwithstanding the existing ruling/order of Court per F.O.G. Ogunbanjo, J made on 2-4-2015 which declared the charge brought under the Miscellaneous Offences Act incompetent. [Ground 1].
2. Whether the Appellants right to fair hearing was not breached when the learned trial Judge failed to consider the issue of the competency of the charge brought under the Miscellaneous Offences Act for which the Appellant was jointly charged with the 1st accused person at the trial Court but rather went ahead to convict the Appellant on the said charge.

3. Whether considering the totality of the evidence adduced by the prosecution, the learned trial Judge was right when he held that the evidence of the prosecution on count two of the charge did not reveal the offence of dealing in petroleum product against the Appellant but however found him guilty for aiding the 1st accused person in relation to count two and thereby sentenced him accordingly.

The Respondents Brief of Arguments dated and filed on the 2/6/2017 was deemed filed on the 6/2/2018. Like the Appellant, three issues were formulated to be determined by this Court as follows:
(a) Whether the learned trial Judge, Honourable Justice Adamu Turaki Mohammed was not right in declining to adopt and rely on the earlier proceedings before Hounourable Justice F.O.G. Ogunbanjo upon the trial de novo in respect of this case before the Honurable Court.
(b) Whether the Appellants right to fair hearing in respect of this case was breached in any way by the Honourable trial Court.
(c) Whether the Honourable trial Court was not right when the Appellant was found guilty under Section 3(6) of the Miscellaneous Offences Act, Cap.

M17, Laws of the Federation of Nigeria, 2004 for aiding the 1st accused person in relation to Count Two of the Further and Better Amended Charge dated 15th March, 2016 after considering the facts and the totality of the evidence adduced before the trial Court.

Having carefully considered the issues raised by the parties, I hold the view that the issues so raised are similar in scope and context; only that they are differently worded. In that respect, I shall determine this appeal on the issues formulated by the Appellant. In doing that, I shall consider issues 1 and 2 together.

Arguing on issue one, learned counsel for the Appellant contended that, the co-accused challenged the competence of the charge and in a Ruling delivered on the 2/4/2015, the lower Court per Ogunbanjo, J held that the original charge was not competent and that accused persons ought to have been charged under the Petroleum Act which is a special and specific law on the subject matter. The charge was then substituted suo motu by Ogunbanjo, J for one under the Petroleum Act instead of the Miscellaneous Offences Act. That the ruling and order of Ogunbanjo, J was not in any way

challenged by way of an appeal. That instead of complying with the order of the Court, the prosecution chose to prefer a charge against the Appellant in terms of Counts 1 and 2 under the Miscellaneous Offences Act, Cap. M17, Laws of the Federation of Nigeria, 2004. The case of Sam v. State (2016) 5 NWLR (pt.1504) 24 was then cited to submit that, an order of a Court of competent jurisdiction which is not appealed against or set aside remains valid and binding.

Learned Counsel for the Appellant then contended that the issue was brought to the attention of the trial Court in the final address of the co-accused but the trial Court per A.T. Mohammed, J failed completely to address and determine the issue of competency of the charge brought under the Miscellaneous Offences Act. Citing the cases of Babatunde v. P.A.S.T.A. Ltd (2007) 12 NWLR (pt.1050) 113 and Biri v. Mairuwa (1996) 8 NWLR (pt.467) 452, learned counsel submitted that the learned trial Judge erred in law when he held that, where a case is transferred from one Court to another, the case is to commence de novo and that in criminal cases, the accused persons must be arraigned

anew and a fresh plea taken. That the learned trial Judge came to the conclusion that the new charge was competent because his attention was not drawn to the notice of Preliminary Objection dated the 13/10/2014 throughout the trial.

Learned Counsel for the Appellant went on to submit that, the learned trial Judge made a grave error of law when he misinterpreted and misapplied the meaning of a trial de novo for rehearing a case set aside as a nullity on appeal from rehearing a case transferred from one Judge to another of concurrent jurisdiction. It was then submitted that, the case of Babatunde v. P.A.S.T.A. Ltd (supra) relied upon by the learned trial Judge is distinguishable from the facts of this case. Citing further the cases of U.I.T.H.M.B v. Oloruntoba (2007) FWLR (pt.364) 2124 at 2124 and Babatunde v. P.A.S.T.A. (supra), learned counsel for the Appellant contended that, in the instant case, there was no trial leading to the calling of witnesses or tendering of documents but a continuous existence of a charge on which an order bordering on the competence of the charge had been made. That in such a circumstance, a trial de novo does not arise.

It was thus argued that, the misconception the trial Court went into is clearly laid to rest in the cases of Elder S.A. Soyinka v. Dr. Olaiya Oni & Ors (2011) LPELR CA/B/209/2005; Amanambu v. Okafor (1960) 1 All N.L.R. 201; Uku v. Okumagba (1974) 3 S.C. 24 and Evaristus D. Egbebu v. I.G.P. & 3 Ors (2016) LPELR 40424 (CA). It was therefore submitted that, the Ruling of the F.O.G. Ogunbanjo, J had settled the issue relating to the competence of the charge against the Appellant brought under the Miscellaneous Offences Act; and that there is no appeal against that Ruling. Furthermore, that A. T. Mohammed, J was therefore in grave error when he assumed the power to set aside the order as not binding on him. We were accordingly urged to resolve the issue in favour of the Appellant and to set aside the conviction and sentence passed on the Appellant under a charge declared to be incompetent.

On issue two, learned counsel for the Appellant contended that, the issue of competency of Counts 1 and 2 of the Further Amended Charge dated the 3/3/2016 was raised in the final address but the learned trial Judge failed to consider the issue and erroneously held that all

steps taken, proceedings conducted or orders made before the trial de novo automatically abated, ceased or elapsed with the order of transfer and trial de novo before another Judge. It was thus submitted that the failure of the learned trial Judge to consider the competency of the charge occasioned a serious breach of fair hearing to the Appellant leading to miscarriage of justice. That the issue of the competency of the charge goes to the jurisdiction of the trial Court to try the Appellant under the Miscellaneous Offences Act.

Learned Counsel for the Appellant then cited the case of Okeke v. Securities and Exchange Commission (2013) All FWLR (pt.687) 731 and Solomon v. F.R.N. (2014) All FWLR (pt.751) 1523 to submit that, where a Court embarks upon a decision in any given matter without the requisite jurisdiction, whatever decision reached is null and void, and liable to be set aside. That, because of the fundamental nature of jurisdiction, it need not be raised by the parties alone, as the Court may raise it suo motu. The case of F.R.N. v. Adewunmi (2007) All FWLR (pt.368) 978, was further cited to concede that, in law, any objection to a

charge for any formal defect shall be taken immediately after the charge has been read over to the accused person. It was however contended that the competency of the charge was raised timeously before the trial Court pursuant to which the order of F.O.G. Ogunbanjo, J was secured. That, although the trial Court, per A.T. Mohammed, J was invited to determine the competency of counts 1 and 2 being brought under the Miscellaneous Offences Act, same was not considered.

Learned Counsel for the Appellant then contended that, where a plea of lack of jurisdiction or breach of fair hearing is raised, determined and successfully upheld on appeal, the Appellate Court will lack the jurisdiction to proceed to determine the remaining issues on the merit. The cases Dide v. Seleketimibi (2010) All FWLR (pt.535) and Araka v. Ejeagwu (2000) 15 NWLR (pt.692) 654 were cited in support. We were accordingly urged to resolve this issue in favour of the Appellant.

Arguing on issue one, learned counsel for the Respondent contended that the Appellant and the co-accused were first arraigned before the Hon. Justice F.O.G. Ogunbanjo before the case was later transferred to the Hon. Justice A.T.

Mohammed, and thus the proceedings before Ogunbanjo. J had abated with the transfer of the case to Mohammed, J. That it is not in dispute that the co-accused (1st accused) had raised a Preliminary Objection on the competence of the charge; and in the Ruling in the Preliminary Objection, Ogunbanjo, J had ordered that the charge under the Petroleum Act be substituted for one under the Miscellaneous Offences Act. That in compliance with the Ruling of the Court, the Respondent filed a two counts amended charged dated the 12/5/2015 wherein the Appellant and his co-accused were indicted for the offences of conspiracy to deal with Petroleum Products without lawful authority contrary to Section 3(6) and punishable under Section 1(17)(a) and (b) of the Miscellaneous Offences Act (supra); and for dealing in petroleum products without lawful authority contrary to and punishable under Section 4(6) of the Petroleum Act (supra). That, the Appellant and the co-accused had not pleaded to the amended charge when same was transferred to Mohammed, J for trial.

Learned Counsel for the Respondent went on to submit that, the Ruling of Hon. Justice Ogunbanjo delivered on the

2/4/2015, did not take away the right of the Respondent to charge the Appellant under the Petroleum Act in combination with another charge under any other law such as the Miscellaneous Offences Act. That, in any case, by transferring the case before Mohammed, J, the case was to start de novo. That before Mohammed, J the charge was further amended by a Further and Better Amended Charge, the Appellant and the co-accused were arraigned for conspiracy to deal with petroleum products without lawful authority contrary to Section 3(6) of the Miscellaneous Offences Act; and for dealing with petroleum products without lawful authority contrary to and punishable under Section 1(17)(a) and (b) of the Miscellaneous Offences Act while the co-accused alone was charged for storing petroleum products without a licence contrary Section 4(1) and punishable under Section 4(6) of the Petroleum Act. That, the Appellant pleaded to the charge without any objection as to the competence of the charge.

Learned Counsel for the Respondent then submitted that, it is the law that where a case starts de novo, all proceedings and steps taken in the case are no longer relevant. The

cases of Abayomi Babatunde v. Pan Atlantic Shipping and Transport Co. & 2 Ors (2007) 13 NWLR (pt.1050) 113 at 146 147 paragraphs HD; Mamuda Biri & Anor v. Tukur Mairuwa & Anor (1996) 8 NWLR (pt.467) 425 at 432 paragraphs GH were cited on the meaning of trial de novo. That in the circumstances, learned counsel for the Appellant knew that upon arraignment before A.T. Mohammed, J for trial de novo, the order on the Preliminary Objection made by Ogunbanjo, J abated or no longer subsisted. Furthermore, that the Appellant ought to have raised the issue of competence of the new charge before Mohammed, J at the time same was read to him but he failed to do so. That, it is on record that, the Appellant did not at any time raise any objection to challenge the competence of the Further and better Amended Charge before the trial Court as even the Preliminary Objection before Ogunbanjo, J was filed by the co-accused.

Learned Counsel for the Respondent went on to submit that, it is wrong for the Appellant to now raise the issue of the competence of the Further and Better Amended Charge. The cases of F.R.N. v. Adewunmi (2007) 10 NWLR

(pt.1042) 399 at 423 424 paragraphs HC; Egunjobi v. F.R.N. (2013) 3 NWLR (pt.1342) 534 at 579 paragraphs CD and Okewu v. F.R.N. (2012) 9 NWLR (pt.1305) 327 at 352 paragraphs EF were then cited to submit that, the appropriate time to raise the objection to the charge is at the time it is being read and before the accused pleads to the charge. That the Appellant having understood the charge, pleaded to it unequivocally and fully participated at the trial without any complaint. We were accordingly urged to hold that, the Appellant was properly charged, tried and convicted on the charge under the Miscellaneous Offences Act.

On issue two, learned Counsel for the Respondent submitted that, the Appellants right to fair hearing in this case was never breached. The cases of Ukachukwu v. P.D.P & Ors (2014) 17 NWLR (pt. 1435) 134 at 197 198 paragraphs GC was referred to for the definition of fair hearing and to also submit that the trial in this case was conducted by the trial Court in observance of the rules and tenets of fair hearing. That the Appellant and one other were arraigned in

the Court below on the 16/3/16 vide a Further Amended and Better Charge filed on the 15/3/16 for the offences of conspiracy to deal with petroleum products without lawful authority contrary to Section 3(6) and for dealing with petroleum products without lawful authority contrary to and punishable under Section 1 (17)(a) and (b) of the Miscellaneous Offences Act, while the co-accused alone was charged for storing petroleum products without a license granted by the Minister contrary to Section 4(1) and punishable under Section 4(6) of the Petroleum Act. That the Appellant pleaded not guilty without raising any objection against the competence of the charge and the case was adjourned for hearing. That at the trial, the Appellant participated fully by Cross-Examining the witnesses and also testifying; and that even at the final address stage, the Appellant did not raise any issue on the competence of the charge.

It was therefore submitted that, the Appellant was given all the opportunity to challenge the competence of the charge but he failed to utilize same. The cases of Union Bank of Nigeria Plc. v. Astra Builders (W.A) Ltd (2010) 5 NWLR (pt.1186) 1 at 34 paragraphs

E; Ukachukwu v. P.D.P & Ors (supra) at 171 paragraphs EG and S & D Construction Co. Ltd v. Ayoku & Anor (2011) 13 NWLR (1265) 487 at 516 517 paragraphs G – C were then cited to submit that, in the circumstances, it is too late for the Appellant to now raise the issue on appeal. The case of S & D Construction Co. Ltd v. Ayoku & Anor (supra) was cited to submit that in any case, the burden was on the Appellant to prove the breach of fair hearing but that in the instant case, the Appellant failed to place any evidence or material facts to establish such breach of his right to fair hearing.

Learned Counsel for the Respondent went on to submit that, the trial Court had the jurisdiction to hear and determine on Counts 1 and 2 of the Further and Better Amended Charge filed on the 15/3/2016 which alleged offences under the Miscellaneous Act. That jurisdiction has been defined by the Supreme Court in the cases of Anyanwu v. Ogunewe & 2 Ors (2014) 8 NWLR (pt.1410) 437 at 478 paragraphs CD and Ahmed v. Ahmed & 3 Ors (2013) 15 NWLR (pt.1377) 274 at 331 paragraphs EF. That by Section 1(1) of the

Miscellaneous Offences Act (supra) and the case of F.R.N. v. Ibori & 5 Ors (2014) 13 NWLR (pt.1423) 168 at 200 paragraphs CD, the Court below had the jurisdiction to hear and determine the case. We were accordingly urged to resolve this issue against the Appellant.

Now, the history of the case leading to this Appeal shows that, the Appellant and one other person were arraigned before the Federal High Court, Coram, F.O.G. Ogunbanjo, J on Charge No: FHC/AB/20C/2014. The said Charge Sheet was dated and filed on the 03/4/2014. After the said charge had been read to the Appellant and his co-accused on the 13/5/2014 and their pleas taken, the other accused person, who was the 1st accused on the Charge Sheet, filed a Notice of Preliminary Objection praying the trial Court, per F.O.G. Ogunbanjo, J to dismiss and/or strike out the Charge for being in competent on the following grounds:
(a) That the 1st Accused/Applicant was charged with two Counts of Conspiracy to deal in petroleum products contrary to Section 3(6) and punishable under Section 1(17)(a) and (b) of the Miscellaneous Offences Act, Cap.M17, Laws of Federation of Nigeria, 2004 and

unlawful dealing in petroleum product contrary to and punishable under Section 1(17)(a) and (b) of the Miscellaneous Offences Act, Cap.M17, Laws of the Federation of Nigeria, 2004, a law generally providing for different categories of offences.
(b) That there is in existence, the Petroleum Act, a special and specific law latter in time providing for the same offence for which the 1st accused/applicant was charged with lesser degree of imprisonment if convicted.
(c) That the 1st Accused/Applicant ought not to have been charged under the provisions of the Miscellaneous Offences Act, Cap. M17, Laws of the Federation of Nigeria, 2004, a general law in the face of the existence of the provisions of Section 4 of the Petroleum Act, a specialized, specific and later law specifically dealing with the same offence.
(d) That the charge against the 1st Accused/Applicant in Charge No: FHC/AB/20C/2014: Attorney General of the Federation v. Ramon Yusuf and Anor is incompetent and ought to be struck out and or dismissed.

After listening to Counsel, the learned trial Judge, F.O.G. Ogunbanjo, J held at page 77 of the Record of Appeal as follows:

In the present case, before this Court, the Miscellaneous Offences Act Cap. M17 LFN, 2004 which came into force on 31st December, 1983 came after the Petroleum Act, Cap.P10 LFN, 2004 which came into force on 27th November, 1969. I believe that the facts in the said Yusuf Abdulkareem v. Federal Republic of Nigeria is on all fours with the present case before this Court. In the light of the above, it is my Ruling that the Complainant ought to have charged the 1st Accused Person/Applicant under the Petroleum Act. Cap.P10 LFN, 2004 being a special and specific law on the subject matter and I so hold.

Taking refuge under the omnibus or general prayer on the Motion paper, the learned trial Judge then consequentially ordered as follows: Consequently, the Court will substitute the Petroleum Act, Cap.P10 LFN, 2004 for the Miscellaneous Offences Act, Cap.M17 LFN, 2004 in the charge before this Court.

There is no appeal against those findings, conclusions and order(s) made by F.O.G. Ogunbanjo, J. The result in law is that the parties to the case have no complaint against those findings, conclusions and orders made by the

Court. That order is therefore deemed conclusive and binding on the parties. I believe it is in obedience to those findings of Ogunbanjo, J that the prosecution filed an Amended Charge Sheet containing two Counts only. See pages 80 81 of the Record of Appeal. The Appellant and the co-accused were arraigned on that Amended Charge wherein they pleaded thereto without any objection before F.O.G. Ogunbanjo, J.

It should be noted that before the trial could commence on the Amended Charge the case was transferred to A.T. Mohammed, J. and proceedings in the case commenced before A.T. Mohammed, J on the 27/1/2016. However, before the trial could commence, the Amended Charge was further amended and filed on the 15/3/2016 vide the Further and Better Amended Charge which contained three Counts. The Amended Charge was accordingly withdrawn and substituted with the Further and Better Amended Charge, without objection. The plea of the Appellant and the Co-accused were then taken before A. T. Mohammed, J on the 16/3/2016. Trial into the case then commenced before Mohammed, J when the prosecution called its first witness on the 28/4/2016. The matter then went to

full trial and judgment was delivered on the 14/9/2016.

Now, the complaint of the Appellant here is that, the trial Court, per Ogunbanjo, J, having ruled on the competence of the charge under the Miscellaneous Offences Act, A. T. Mohammed, J was bound by that decision. That in the circumstances, the charge before Mohammed, J under the same Miscellaneous Offences Act (supra), was incompetent and therefore the trial Court had no jurisdiction to try him under that Law in view of the decision of Ogunbanjo, J delivered on the 2nd day of April, 2015.

The issue was raised by the 1st accused who was the Appellants co-accused in the final written address of counsel. In determining the issue, the learned trial Judge held at pages 201 line 15 203 line 5 of the Record of Appeal as follows:
I have perused the record of this case and I have found as a fact that the 1st Accused person have filed (sic) a Notice of Preliminary Objection dated and filed on the 13th October, 2014 by virtue of which he had secured the ruling of this Court as per my Brother, Hon. Justice F.O.G. Ogunbanjo, J dated 2nd April, 2015.

I must state here that this case is transferred from my Learned Brother in Court 1 to this Court and came for the 1st time before me on the 27th January, 2016 and the two Accused persons were arraigned before me on the 16th March, 2016. There is no doubt that this case was pending before my learned Brother in Court 1 and the Accused persons were initially arraigned before Court 1 prior to the transfer of their case before me. It is to be noted that it is trite law that where a case is transferred from one Court to another, the case is to commence de novo, and in a criminal case, the Accused persons must be arraigned again and a fresh plea taken. A trial de novo means fresh or new trial or commencing a trial of a case afresh from the beginning or all over again as if no trial had taken place initially.
In the instant case, the Notice of Preliminary Objection dated 13th October, 2014 was not drawn to the attention of this Court, neither was it moved before me throughout the trial of the 1st Accused person from the 16th March, 2016 when he was arraigned and pleaded not guilty to this charge to the (sic) 20th of June, 2016 when he entered and closed his Defence, and

the 1st July, 2016 when he adopted his final Written Address. In view of the above, I resolve the first issue in favour of the Prosecution and hold that Counts one and two of the charge against the Accused persons are competent and not liable to be struck out.

once more to reframe their cases and restructure it as each may deem it appropriate.
The legal consequence is that, all pending proceedings including orders made previously by the former Judge are regarded as having abated or having been spent. They are rendered nugatory. All previous proceedings and orders having been rendered nugatory, it means that there is no valid and existing proceeding howbeit order which can be said to have been reviewed by the Judge to whom the matter was transferred. In that respect, Mohammed, J could not have been said to be caught by the legal effect or principles of functus officio with regards to the competence of the charge. It should be noted that the order of Ogunbanjo, J on the competence of the original charge was final. However, before the same Judge, the original charge was amended and when the case was transferred to A.T. Mohammed, J, the amended Charge was further amended. Thus, the charge upon which the Appellant was arraigned, tried and convicted was the Further and Better Amended Charge. It is therefore my view that with the subsequent amendments to charge, the order of F.O.G. Ogunbanjo, J was rendered irrelevant.

In other words, the order of Ogunbanjo, J could no longer be sustained.
Based on the facts stated above, it is my view that, the case having been started de novo before A. T. Mohammed, J, the order of Ogunbanjo, J in respect of the charge became spent. In any case the original charge was amended in line with the order of Ogunbanjo, J and further amended before Mohammed, J. That being so, Mohammed, J was not bound by the order of Ogunbanjo, J in respect of the original charge, which charge was not even before him. What was before Mohammed, J was an Amended Charge which was further amended. See Omisore v. State (supra). Thus, in Bamaiyi v. State (supra) M.D. Muhammad, JCA (as he then was) said at page 240 paragraphs C – D of the report that: In the case at hand and drawing from the foregoing decision of this, the amendment of the charge by the 1st Respondent and the recording of fresh plea thereto by the Court then presided by Ade-Alabi, J; mean that the trial of the Appellant on the initial charge that was amended had ceased. Again, on account of the withdrawal of Ade-Alabi, J from the case, the re-assignment to and the commencement of the case

de novo by Oyewole, J; all proceedings before Ade-Alabi, had been discharged and brought to virtual non-existence. One is unable to agree with Appellants counsel that any aspect of the trial before Ade-Alabi, J. had persisted as at 19th April, 2000 when Appellant purportedly appealed.
Based on the above cited case, it is clear to me that, with the transfer of the case to Mohammed, J; and the amendments to the charge, the argument of the Appellant has been rendered invalid. In other words, the position taken by the Appellant had changed with the transfer of the case and the amendment of the charge.

If the Appellant had any complaint or disagreement with the Amended Charge and the Further and Better Amended Charge, the time to raise the objection was at the time of his arraignment. This is in line with Section 167 of the Criminal Procedure Act, Cap. C41, Laws of the Federation of Nigeria, 2004 which stipulates that:
167, Any objection to a charge for any formal defect on the face thereof shall be taken immediately after the charge has been read over to the accused and not later.
In the instant case, when the Amended Charge was

read out to the Appellant, the Appellant pleaded thereto without any objection or complaint. When the Amended charge was further amended, same was read out to the Appellant. The Appellant who was duly represented by counsel pleaded to it and the case proceeded to trial. Neither at the time of arraignment on the Further Amended Charge nor at any time during the trial up to judgment, did the Appellant raise any objection thereto. The Appellant unequivocally pleaded afresh to the Further Amended Charge. By so doing, it is my view that the Appellant was satisfied with the Further Amended Charge and therefore put himself on trial in respect of the Further Amended Charge. Thus, Section 217 of the Criminal Procedure Act (supra) stipulates that:
217. Every person by pleading generally to the plea of not guilty shall without further form he is deemed to have put himself upon his trial.
From the foregoing, I am of the firm view that, the Appellant having pleaded to the Further and Better Amended Charge without objection when same was read to him, is estopped from raising any issue or objection as to the competence of the said charge. In other words,

having pleaded to the said charge had put himself upon trial on the charge; and therefore estopped from contending to the contrary. On that note, I hereby resolve this issue against the Appellant.

On issue three, learned counsel for the Appellant referred to the evidence led by the prosecution at the trial, to contend that, the learned trial Judge relied heavily on Exhibits N1 and N2 to hold that he is guilty of promoting or aiding the activities of the co-accused (Ramon Yusuf) in relation to Count Two (2) of the charge. That the learned trial had earlier held when ruling on the conspiracy charge (Count 1), that having reviewed Exhibits L, M and N1 & N2, he was unable to find any evidence of conspiracy against the accused persons, as there was no element of the agreement between the Appellant and the co-accused. That, in contradiction of those findings, the learned trial Judge found and held that:
From the available evidence before me, particularly Exhibit N1 and N2, I have found the conduct of the 2nd accused person in promotion

and or in aid of the activities of the 1st accused person in relation to Count two of this charge and I so hold.

It was then contended that the learned trial Judge did not state the conduct of the Appellant that was in promotion or aid of the activities of the co-accused at the trial. That, the testimony of the Appellant was abundantly corroborated by that co-accused (PW1). Referring to the evidence in chief of the Appellant at page 164 of the Record of Appeal, and under Cross-Examination, it was contended that, the Appellant had maintained that the co-accused was an informant to the Nigerian Security and Civil Defence Corps (NSCDC) and that such evidence was not controverted in any way by the prosecution.

Learned Counsel for the Appellant went on to submit that, there is no scintilla of evidence from the prosecution showing, even remotely, that the Appellant was aiding the 1st accused person to commit the offence of dealing in petroleum products. Referring to Archbold: Pleadings, Evidence and Practice in Criminal Cases (43rd Ed.) at pp. 2699 paragraphs 2916 and 2977, and the case Emeka v. The State (1998) 12 NWLR (pt.559) 556, learned counsel

submitted that, there is no evidence on record showing that the Appellant knew what the 1st accused was doing. That, if there is any evidence from the Appellant, it only shared that the 1st accused is an informant to the NSCDC for the Lagos State command. The case of Irolo v. Uka (2002) FWLR (pt.127) 1167 and Incar (Nig.) Ltd v. Adegboye (1958) 2 NLR p.453 were then cited to submit that the decision of learned trial Judge is perverse as same is not supported by the evidence of record. We were accordingly urged to hold that there is no evidence on record to suggest that the Appellant aided the activities of his co-accused in dealing in petroleum products.

In response, learned Counsel for the Respondent contended that the learned trial Judge was right in finding the Appellant guilty of an offence under Section 3(6) of the Miscellaneous Offences Act, Cap. M17, Laws of the Federation of Nigeria, 2004. The case of Habibu Musa v. The State (2013) 9 NWLR (pt.1359) 214 at 242; Gbenga Stephen v. The State (2013) 8 NWLR (pt.1355) 153 at 172 and Osuagwu v. The State (2013) 5 NWLR (pt.1347) 360 at 386 were then cited to submit that, in all criminal cases, the burden

is on the prosecution to prove the guilt of the accused person beyond reasonable doubt. That, where all the ingredients of an offence have been satisfactorily proved, the charge is said to be proved beyond reasonable doubt.
It was further submitted by learned counsel for the Respondent that, where the available evidence supports the commission of another offence different from the offence for which the Appellant was charged, the Court has the power to convict for that offence. Learned Counsel then referred to Section 223 of the Administration of Criminal Justice Act, 2015 (ACJA, 2015) and 3(5) of the Miscellaneous Offences Act, 2004, to further submit that, from the facts of this case and the exhibits tendered without any form Objection, particularly Exhibits N1 and N2, the prosecution satisfactorily established that the Appellant aided the activities of the 1st accused in relation to Count 2 of the Further and Better Charge. That, the act of the Appellant is an offence contrary to Section 3(6) of the Miscellaneous Offences Act (supra). We were accordingly urged to dismiss the appeal and affirm the judgment of the Lower Court.

there is no onus on the accused person to prove his innocence. See Stephen v. State (2009) 4 FWLR (pt.492) 8153; Chianugo v. State (2001) LPELR 7006 (CA) and Musa v. State (2014) LPELR 24026 (CA). The guilt of the accused person can therefore be established by any one or all of the following ways:
(a) The confessional statement of the accused which is direct, positive and properly proved in Court;
(b) By circumstantial evidence which is cogent, compelling and points to only one conclusion that the accused committed the offence;
(c) By direct evidence of either an eye witness who saw when the offence was committed or the evidence of the victim of the offence.
In all these circumstances, the evidence adduced must be capable of proving the offence beyond reasonable doubt. See Osetola v. State (2012) LPELR 9348 (SC); Alabi v. State (1993) 7 NWLR (pt.307) 311 and Nigerian Navy & Ors v. Lambert (2007) LPELR 2026 (SC).
In the instant case, the Appellant and one other were charged with conspiracy to deal in petroleum products and for dealing in petroleum products which are offences contrary

to Section 3(6) and punishable under Section 1(17)(a) and (b) of the Miscellaneous Offences Act. The trial Court however found that the evidence adduced did not prove any of the offences charged against the Appellant. Consequently, he was acquitted thereon. The learned trial Judge however found and held at page 218 line 18 219 line 6 of the Record of Appeal as follows: From the available evidence before me, particularly, Exhibits N1 & N2, I have found the conduct of the 2nd Accused person in promotion and/or aid of the activities of the 1st Accused person in relation to count two of this charge and I so hold.
I have already decided that the evidence of the prosecution on count two of the charge did not reveal of the offence of dealing in petroleum product against the 2nd Accused person but it reveals that the 2nd Accused aids the activities of the 1st Accused, an offence punishable under Section 3(6) of the Miscellaneous Offences Act, 2004 and I so hold.
It is trite law that when a person aids the commission of an offence by being present at the scene, not as a mere on looker but with purpose of aiding and

assisting any other person or persons committing the offence, he is equally guilty of committing the offence as a principal. See; SALAWU Vs. STATE (2015) NWLR (pt.1444) 595 at 599 (SC).
On that note, the learned trial Judge found the Appellant guilty of aiding the 1st accused (co-accused) in dealing in petroleum product. The learned trial Judge arrived at his decision on the findings of fact made at page 218 lines 10 17 of the Record of Appeal as follows:
From the statement of the 2nd Accused person in Exhibit N1 it is clear that the reason why he was found with the 1st Accused person on the 27th of March, 2014 was contrary to his evidence when he testified as DW1. In fact, the statement revealed that he was aware of the activities of the 1st Accused person in relation to count two of the charge against him, i.e. dealing in petroleum product. As officer of the NSCDC attached to Lagos Command, though not within his command, the 2nd Accused person ought to have acted appropriately when he found that the 1st Accused person unlawfully deals in petroleum product, according to Exhibit N1.

No doubt, though the trial Court found the charges on counts 1 and 2 not proved against the Appellant, the trial Court had the power to proceed to convict the Appellant on any offence the evidence adduced at the trial disclosed. That power is derived from Section 223 of the Administration of Criminal Justice Act, 2015 (ACJA, 2015) which provides that: 223. Where a Defendant is charged with one offence and it appears in evidence that he committed a similar offence with which he might have been charged under the provisions of this Act, he may be convicted of the offence, which he is shown to have committed although he was not charged with it.
The Miscellaneous Offences Act (supra) under which the Appellant was convicted also finds support for Section 223 of the ACJA, 2015, when it stipulates in Section 3(5) of the Act as follows:
3(5). Where a person is charged with an offence under this Act, but the evidence establishes the commission of another offence under this Act, the offender shall not be entitled to acquittal but he may be convicted of that other offence and punished as provided under this Act.

As earlier stated, before the Court can proceed to convict as aforestated, the evidence adduced must have established that other offence beyond reasonable doubt. It should be noted that, the above cited Laws, do not give the trial Court an open cheque to so convict. The interest of justice and right to fair hearing require that, before the Court can so convict, he should be given the opportunity of at least an adjournment to prepare any defence he may have on that particular charge. Thus, in Okonofua & Anor v. State (1981) 67 S.C. 1, Bello, JSC (as he then was) said: I think it is just and fair that whenever it is anticipated that an accused person may be convicted of an offence other than the one with which he has been charged, such possibility should be brought to his notice and that he should be given opportunity to meet that particular charge.
The above cited case has been cited and followed in several cases by this Court. For example, see Adesanya v. FRN (2012) LPELR 7926 (CA); Nggilari v. State & Ors (2017) LPELR 42985 (CA), etc. This is moreso where the other offence is not shown to have close affinity to the offence charged and tried.

In the instant case, the trial Court acquitted the Appellant of the offences with which he was charged, but proceeded to convict him of another offence, to wit: aiding the co-accused in dealing in petroleum product without lawful authority. It has not been shown that the facts needed to prove the offence for which the Appellant was convicted could be subsumed in the original charge of either conspiracy to deal in petroleum products or dealing in petroleum products. In other words, it has not been shown that the ingredients of the other offence of aiding are similar to those of conspiracy to deal in petroleum products. See The Nigerian Airforce v. Kamaldeen (2007) 7 NWLR (pt.1032) 164.

In any case, it is apparent on the record that, the trial Court placed great premium on the Extra-Judicial Statements of the Appellant to convict. Such Statements are in evidence as Exhibits N1 and N2. I have carefully perused those statements. They do not in anyway qualify as Confessional Statements nor did they indicate that the Appellant aided the co-accused in the act of dealing in petroleum products

without lawful authority. The Appellant had given evidence that he had visited the co-accused who was an informant to receive information about some pipeline vandals. The prosecution did not adduce any iota of evidence to discredit or controvert the testimony of the Appellant. All the prosecution did was to tender certain documents to show that the Appellant was on suspension at the time of the incident. Those documents are in evidence as Exhibits O and P respectively. I believe those documents are not worthy of any evidential value because of the apparent alterations thereon; and for the better reason that the maker of the documents was never called to testify as to the correctness of the facts stated therein. Furthermore, there was no evidence from the Lagos State Command of the NSCDC controverting the testimony of the Appellant.

It should be noted that the Appellant had no onus to proof his innocence. Thus, the fact that he made inconsistent statements, or even that he told lies would not relieve the prosecution of the burden to prove the guilt of the Appellant beyond reasonable doubt. It is therefore my view, and I do

hold that, the learned trial Judge erred when he convicted the Appellant of aiding the co-accused to deal in petroleum products. On that note, issue three (3) is hereby resolved in favour of the Appellant.

Having thus resolved, it is apparent that this appeal has succeeded in part. However, with the success of issue three (3) as raised by the Appellant, I am of the view that, the conviction of the Appellant for aiding the co-accused to deal in petroleum products without lawful authority cannot be sustained. On that score, the judgment of the Federal High Court holden at Abeokuta delivered on the 14th day of September, 2016 is hereby set aside. The Appellant is therefore acquitted and discharged.

JIMI OLUKAYODE BADA, J.C.A.: I had the advantage of reading in draft the lead Judgment of my learned brother, HARUNA SIMON TSAMMANI, JCA, just delivered.

My lord has dealt with the issues for determination in this appeal in a very lucid form and I agree with the reasons contained in the Judgment as well as the conclusion reached.
It is also my view that there is merit in this appeal and it is allowed by me.

I abide by the consequential orders made in the said lead Judgment.

FOLASADE AYODEJI OJO, J.C.A.: I have read in advance the draft of the judgment just delivered by my learned brother Haruna Simon Tsammani JCA. I agree with the reasoning and conclusion therein.

If the right to be heard is to be a real right which is worth anything, it must carry with it the right in the accused to know the case which is made against him.
The proof of evidence must contain the statements of the witnesses to testify against him and any other evidential materials to be used against him in the bid of the prosecutor to prove the allegation or the charge against him beyond reasonable doubt. This is what it means when it is said that the accused person must be given full opportunity of exculpating himself. Ademola, C.J.N. in Adedeji v. Police Service Commission (1967) 1 All NLR 67; (1968) NMLR 102, (1967) SCNLR 102, citing with approval Kandy V. Government of Malaya (supra) stated the law on this thus-
The accused person must know the name of his accuser and all what he said about him before it could be said that he was given a full opportunity of exculpating himself. Section 36(6)(a) & (b) of the 1999 Constitution demand no less in the provisions to wit:
(6) Every person who is charged with a criminal offence shall be entitled to
(a) to be informed promptly in the language

that understands and In detail of the nature of the offence;
(b) to be given adequate time and facilities for the preparation of his defence.
The right conferred on the accused person by Section 36(6)(a) & (b) of the Constitution is not a cosmetic or fanciful right, It is for real.”
There must be evidence on record in support of the similar offence. The Defendant must have participated in the trial for the existing charge and the ingredients of the similar offence must be shown to have been proved. It must be shown that the ingredients of the similar offence for which the Appellant is convicted are the same as those for which he was charged and tried. All these did not happen at the lower Court. In the circumstance it cannot be said that the Appellant was given full opportunity to exculpate himself.

It is for this and other reasons embedded in the lead judgment that I also find merit in this appeal and allow same. I abide by the consequential orders of my learned brother in the lead judgment.

Appearances:

I.P. Ezugwu, Esq. with him, O. J. Ozioko, Esq. For Appellant(s)

For Respondent(s)

Appearances

I.P. Ezugwu, Esq. with him, O. J. Ozioko, Esq. For Appellant

AND

For Respondent