ADEBISI AUGUSTINE ABIOLA v. THE STATE (2019)

ADEBISI AUGUSTINE ABIOLA v. THE STATE

(2019)LCN/13220(CA)

In The Court of Appeal of Nigeria

On Wednesday, the 8th day of May, 2019

CA/C/61C/2015

RATIO

JURISDICTION: THE ISSUE OF JURISDICTION MUST ALWAYS BE DEALT WITH FIRST

Jurisdiction is the authority of a Court to determine any dispute tabled before it by contending parties, see Dariye v. FRN (2015) 10 NWLR (Pt. 1467) 325; Mbah v. State (2014) 10 NWLR (Pt. 1415) 316. The law compels a Court to treat first an issue of jurisdiction where it germinates in any proceeding. I will pay due obeisance to this legal commandment in order not to insult the law.PER OBANDE FESTUS OGBUINYA, J.C.A.

SENTENCING: DUTY OF THE COURT OF APPEAL WHEN THE LOWER COURT SUBSTITUTING THE CORRECT SENTENCE WITH A WRONG SENTENCE
The remnant casus belli in the issue, which the parties were diametrically opposed on, is the legality or otherwise of substituting the wrong sentences with the lawful terms. In this wise, the provision of Section 19(3) of the Court of Appeal Act, Cap. C36, Laws of the Federation of Nigeria, 2004 comes in handy. Due to its Olympian status on the nagging and decisive point, I will pluck it out, where it is domiciled in the Court of Appeal Act, ipsissima verba, as follows:
(3) On an appeal against sentence or, subject to the provisions of this Act, or on an appeal against conviction, the Court of Appeal shall, if it thinks that a different sentence should have been passed, quash the sentence passed at the trial and pass such other sentence warranted in law (whether more or less severe) in substitution therefor as it thinks ought to have been passed, and if not of that opinion shall, in the case of an appeal against sentence, dismiss the appeal.PER OBANDE FESTUS OGBUINYA, J.C.A.

LIBERAL RULE OF INTERPRETATION FOR THE COURTS: COURTS MUST ASCRIBE THE ORDINARY GRAMMATICAL MEANING TO STATUTES WITHOUT ANY ADDITIONS
To this end, the law mandates the Court to accord it its ordinary grammatical meaning without any embellishments, see FRN v. Osahon (2006) 5 NWLR (Pt. 973) 361; Nigerian Army v. AminunKano (2010) 5 NWLR (Pt. 1188) 429; Agbiti v. Nigerian Navy (2011) 14 NWLR (Pt. 1236) 175; Nyame v. FRN (2010) 7 NWLR (Pt. 1193) 344; Amoshima v. State (2011) 14 NWLR (Pt. 1268) 530; FRN v. Mohammed (2014) 9 NWLR (Pt. 1413) 551; Martins v. COP (2013) 4 NWLR (Pt. 1343) 25. PER OBANDE FESTUS OGBUINYA, J.C.A.

FUNCTUS OFFICIO: WHEN DOES A COURT BECOME FUNCTUS OFFICIO

In the eyes of the law, the lower Court, on delivery of that judgment, became functus officio, a Latin maxim that imports- Task performed without further function vis-a-vis a matter, see Dingyadi v. INEC (No.1) (2010) 18 NWLR (Pt. 1224) 1; Mohammed v. Husseini (1998) 11/12 SCNJ 136/(1998) 14 NWLR (Pt. 584) 108; Olowu v. Abolore (1993) 6 SCNJ (Pt. 1) 1/(1993) 5 NWLR (Pt.293) 255; Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1025) 423; Ihedioha v. Okorocha (2016) 1 NWLR (Pt. 1492) 147; Ngere v. Okuruket XIV (2017) 5 NWLR (Pt. 1559) 440; Akahall & Sons Ltd. v. NDIC (2017) 7 NWLR (Pt. 1564) 194.PER OBANDE FESTUS OGBUINYA, J.C.A.

FUNCTUS OFFICIO:EXCEPTIONS TO THE RULE
Be that as it may, the hallowed doctrine of functus officio is elastic. In other words, it is dotted with notable exceptions. The one relevant here is located in the slip rule whereby the law grants the Court the nod to make correction of clerical errors in a judgment, see A. T. Ltd. v. A.D.H. Ltd. (2007) 15 NWLR (Pt. 1056) 118; Dingyadi v. INEC (supra); Famu v. Kassim (2013) 7 NWLR (Pt. 1352) 166; Citec Intl Estates Ltd. v. Francis (2014) 8 NWLR (Pt. 1408) 139; Aroso v. Enterprise Bank Ltd. (2015) 13 NWLR (Pt. 1476) 306; A.-G, Kwara State v. Lawal (2018) 3 NWLR (Pt. 1606) 266.PER OBANDE FESTUS OGBUINYA, J.C.A.

NON-DATING OR WRONFUL DATEFUL OF PROCESSES: IMPLICATION

To begin with, it is trite that non-dating of a process (especially notice of appeal) taints it with incompetence, see Adamu v. State (2017) 10 NWLR (Pt. 1574) 463. But, wrong dating of a judgment is a curable irregularity, see Japhet v. State (2016) 6 NWLR (Pt. 1509) 602. It is decipherable from the judgment, as dissected above, that the Judge of the lower Court made the alteration on its date of delivery 22nd September, 2014. In APC v. INEC (2015) 8 NWLR (Pt. 1462) 531 at 567, I.T. Muhammad JSC, speaking for the Supreme Court, incisively and decisively, opined:
Thirdly, it stands to reason that where a document has been signed and in it is provided a specific date of commencement or date when effect is to be given to or action to be taken, that date must be taken to be the effective or commencement date irrespective of the date when the officer signing the document on behalf of the authority appended his signature. That specific date of commencement can be with retrospective effect, it may commence immediately after or on the date of signing or it may even be in the future.PER OBANDE FESTUS OGBUINYA, J.C.A.

RECORD OF APPEAL: AN APPELLATE COURT MUST READ THE RECORDS IN IS CONTENT
An appellate Court must read the record in its exact content, see Udo v. State (2006) 15 NWLR (Pt. 1001) 179; Bassey v. State (2012) 12 NWLR (Pt. 1314) 209; Osung v. State (2012) 18 NWLR (Pt. 1332) 256; Mohammed v. State (2015) 13 NWLR (Pt. 1476) 276; Offor v. State (2012) 18 NWLR (Pt. 1333) 421; State v. John (2013) 12 NWLR (Pt. 1368) 337.PER OBANDE FESTUS OGBUINYA, J.C.A.

OMNIA PRAESUMUNTUR RITE ET SOLEMNITER ESSE ACTA DONEC PROBETUR IN CONTRARIUM

That is not all. The judgment, sought to be impugned by the appellant, comes within the province of an official act. Section 168(1) of the Evidence Act, 2011, former Section 150(1) of the defunct Evidence Act, 2004, states: When any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with. In the Latin days of the law, it was: Omnia Praesumuntur rite et solemniter esse acta donec probetur in contrarium all things are presumed to have been legitimately done, until the contrary is proved. Of course, this statutory presumption holds sway in our jurisprudence, see Okeke v. State (2003) 15 NWLR (Pt. 842) 25; Olabode v. The State (2007) All FWLR (Pt. 389) 1301; Torri v. N.P.S.N. (2011) 13 NWLR (Pt. 1264) 365; Citec Int’l Estates Ltd. v. Francis (2014) 8 NWLR (Pt. 1408) 139; Adegbuyi v. APC (2015) 2 NWLR (Pt. 1442) 1.PER OBANDE FESTUS OGBUINYA, J.C.A.

COURTS: THE TRIAL COURT AS WELL AS THE COURT OF APPEAL HAS CONCURRENT JURISDICTION ON THE EVALUATION OF DOCUMENTARY EVIDENCE

It is imperative to place on record, that bags of documentary evidence formed the corpus of the case. Interestingly, the law, in order to repel injustice, donates concurrent jurisdiction to this Court and the lower Court on evaluation of documentary evidence, see Ezeuko v. State (2016) 6 NWLR (Pt. 1509) 529; FRN v. Sanni (2014) 16 NWLR (Pt. 1433) 299; Atoyebi v. FRN (2018) 5 NWLR (Pt. 1612) 350.

HEARSAY EVIDENCE: IMPLICATION OF A DOCUMENT BEING HEARSAY

In view of the law, hearsay evidence can only be used to inform a Court about what a witness heard another say and not establish the truth of an event, see Section 37, 38 and 126 of the Evidence Act, 2011; (former Section 77 of the Evidence Act, 2004); Kasa v. State (1994) 5 NWLR (Pt. 344) 269; FRN v. Usman (2012) 8 NWLR (Pt. 1301) 141; Theophilus v. State (1996) 1 NWLR (Pt. 423) 139; Doma v. INEC (2012) 13 NWLR (Pt. 1317) 297; Onovo v. Mba (2014) 14 NWLR (Pt. 1427) 391; Kakih v. PDP (2014) 15 NWLR (Pt. 1430) 374; Opara v. A. G. Fed. (2017) 9 NWLR (Pt. 1569) 61; State v. Masiga (2018) 8 NWLR (Pt. 1622) 383.PER OBANDE FESTUS OGBUINYA, J.C.A.

EVIDENCE: THE POSITION OF THE EVIDENCE OF AN INVESTIGATING POLICE OFFICER
The law has totally divorced the evidence of an investigating police officer (IPO) of a case from hearsay and adorned it with the cap of admissible evidence. In Anyasodor v. State (2018) 8 NWLR (Pt.1620) 107 at 125 Sanusi, JSC incisively opined:
On the appellants counsels submission that the testimony of PW3 was hearsay, I am also at one with the lower Courts conclusion that such testimony as given by the PW3 was not and cannot be described as hearsay evidence. To my mind, all that the PW3 (IPO) did was to give evidence on what he actually saw or had witnessed, or discovered in the course of his work as an investigator. His testimony on what the appellant told him was positive and direct which was narrated to him by the appellant and other witnesses he came into contract (sic) with in the course of his investigation of the case. Evidence of an IPO is never to be tagged as hearsay. This Court in a plethora of its decided authorities had adjudged such evidence as direct and positive evidence and therefore not hearsay evidence. See Arogundade v. The State (2009) All FWLR (Pt. 469) (SC) 423; (2009) 6 NWLR (Pt. 1136) 165.
See also Olaoye v. State (2018) 8 NWLR (Pt. 1621) 281.PER OBANDE FESTUS OGBUINYA, J.C.A.PER OBANDE FESTUS OGBUINYA, J.C.A.

CONTRADICTION: WHEN A CONTRADICTION IS FATAL
However, for contradiction to be fatal to any case, it must be so material to the extent that it casts serious doubts on the entire case presented by a party against whom it is raised. Put the other way round, collateral contradiction will not constitute dents on a partys case, see Ebeinwe v. State (2011) 7 NWLR (Pt, 1246) 402; Attah v. State (2010) 10 NWLR (Pt. 1201) 190; Olayinka v. State (2007) 9 NWLR (Pt.1040) 561; Akpa v. State (2008) 14 NWLR (Pt. 1106) 72; Eke v. State (2011) 3 NWLR (Pt. 1235) 589; Babarinde v. State (2011) 3 NWLR (Pt. 1235) 568; Olatinwo v. State (2013) 8 NWLR (Pt. 1355) 126; Mohammed v. State (2014) 12 NWLR (pt. 1421) 387; Emeka v. State (2014) 13 NWLR (Pt. 1425) 614; Bello v. C.O.P (2018) 2 NWLR (Pt. 1603) 267; Idi v. State (2018) 4 NWLR (Pt. 1610) 359; Adegbite v. State (2018) 5 NWLR (Pt. 1612) 183; Ogu v. C.O.P (supra); Idi v. State (2018) 4 NWLR (Pt. 1610) 359; Anyasodor v. State (2018) 8 NWLR (Pt. 1620) 107.PER OBANDE FESTUS OGBUINYA, J.C.A.

WITNESSES: WHEN WITNESSES GIVE THE SAME EVIDENCE , HOW WILL THERI EVIDENCE BE TREATED BY THE COURT?
Where witnesses give evidence on the same matter to the exact minutest details, their testimonies will be treated with circumspect as they will be guilty of evidential tutorage, see Egwumi v. State (2013) 13 NWRL (Pt. 1372) 525; Galadima v. State (2017) 14 NWLR (Pt. 1585) 187. On this premise, I am not armed with any legal justification to ostracise those pieces of evidence from the appeal on account of phoney or non-existent contradictions.PER OBANDE FESTUS OGBUINYA, J.C.A.

CIRCUMSTANTIAL EVIDENCE: PURPORT AND ELEMENTS IN NIGERIAN CRIMINAL JUSTICE SYSTEM

By way of prefatory observations, it is important to appreciate the purport and elements of circumstantial evidence in our criminal justice system. In Mohammed v. State (2007) 11 NWLR (Pt. 1045) 303 at 327; I.T. Muhammad, JSC, (now Ag. CJN) explained it in these illuminating words:
It is the proof of circumstances from which, according to the ordinary course of human affairs the existence of some fact may reasonably be presumed. It is that evidence of surrounding circumstances which by un-designed coincidence, is capable of proving a proposition with the accuracy of mathematics.PER OBANDE FESTUS OGBUINYA, J.C.A.

CIRCUMSTANTIAL EVIDENCE: THIS IS CALLED THE BEST EVIDENCE
It has been described, at times, as the best evidence in that witnesses can lie, but circumstances cannot lie. For it to ground conviction, it must be positive, compelling, direct and link an accused with the offence. It is an amphibious evidence in that it has a place in criminal and civil proceedings, see Usman v. State (2013) 12 NWLR (Pt. 1367) 76; Ismail v. State (2011) 17 NWLR (Pt. 1277) 601; Odogwu v. State (2013) 14 NWLR (Pt. 1373) 74; Oguno v. State (2013) 15 NWLR (Pt. 1376) 1; Yakubu v. State (2014) 8 NWLR (Pt. 1408) 111; Usman v. State (2014) 12 NWLR (Pt. 1421) 207; Udor v. State (2014) 12 NWLR (Pt. 1422) 548; Aikhadueki v. State (2014) 15 NWLR (Pt. 1431) 530; Abokokuyanro v. State (2016) 9 NWLR (Pt. 1516) 110; Ogogovie v. State (2016) 12 NWLR (Pt. 1527) 468; Ezeuko v.State (supra); Thomas v. State (2017) 9 NWLR (Pt. 1570) 230; Igbikis v. State (2017) 11 NWLR (Pt. 1575) 126. Circumstantial evidence is one of the three ways of proving commission of crimes. The other two are through eye witness and confessional statement, see Igri v. State (2012) 16 NWLR (Pt. 1327) 522; Oguno v. State (2013) 15 NWLR (Pt. 1376) 1; Ibrahim v. State (2014) 3 NWLR (Pt. 1394) 305; Ogedengbe v. State (2014) 12 NWLR (Pt. 1421) 338; Umar v. State (2014) 13 NWLR (Pt. 1425) 497.PER OBANDE FESTUS OGBUINYA, J.C.A.

JUSTICES:

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

OBANDE FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria

YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria

Between

ADEBISI AUGUSTINE ABIOLA – Appellant(s)

AND

THE STATE – Respondent(s)

OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the Leading Judgment): This appeal queries the correctness of the decision of the High Court of Cross River State, holden in Calabar (hereinafter addressed as the lower Court), coram judice: Elias O. Abua, J., in Charge No. HC/5C/2013, delivered on 22nd September, 2014. Before the lower Court, the appellant and the respondent were the accused person and complainant respectively.

The facts of the case, which transformed into the appeal, are amenable to brevity and simplicity. On or about 15th November, 2006, the appellant and four others, at No. 3 Coffee Road, Adiabo village, Calabar accused one Charles Etim Effiong of having power of witchcraft which he used to cause the death of one late Effiong Nsa Ewa who died following the injuries he sustained in a motor cycle accident. Sequel to the allegation, the appellant and the four others went to the premises of Charles Etim Effiong and willfully and unlawfully damaged his buildings and carted away some of his property valued millions of Naira. Following that, Charles Etim Effiong laid a written complaint, through his lawyer, of arson,

malicious damage, threat to life, criminal trespass and stealing to the police in Calabar against the appellant and those others. The police duly carried investigation into the allegations contained in the petition. Thereafter, the appellant alongside four others was arraigned before the lower Court for the offences of malicious damage, stealing and witchcraft contrary to Sections 451, 390(9) and 210(b) of the Criminal Code, Cap. C16, vol.3, Laws of Cross River State, 2004 respectively. The appellant pleaded not guilty to the three-count information.

Following the plea of not guilty, the lower Court had a full-scale determination of the case. In proof of the case, the respondent fielded three witnesses, PW1 – PW3, and tendered documentary evidence: Exhibits A-J. In defence of the case, the appellant testified in person, as DW4, and called no other witness. At the closure of evidence, the parties, through counsel, addressed the lower Court. In a considered judgment, delivered on 22nd September, 2014, found at pages 137-157 of the printed record, the lower Court convicted the appellant on the three counts and sentenced him to various terms of

imprisonment.

The appellant was dissatisfied with the judgment. Hence, he lodged a 4-ground notice of appeal, copied at the unpagenated portion, after page 157, of the record and prayed this Court: To allow this appeal, set aside the judgment of the trial Court appealed against. Thereafter, the parties, through counsel, filed their respective briefs of argument in line with the procedure governing the hearing of criminal appeals in this Court. The appeal was heard on 27th February, 2019.

During its hearing, learned counsel for the appellant, Chief Cletus Okoi, adopted the appellants brief of argument, filed on 28th May, 2015, and the appellants reply brief, filed on 25th February, 2019 and deemed properly filed on 27th February, 2019, as representing his arguments for the appeal. He urged the Court to allow it. Similarly, learned counsel for the respondent, Eneji Amajama, Esq., adopted the respondents brief of argument, filed on 26th February, 2019 and deemed properly filed on 27th February, 2019, as forming his reactions against the appeal. He urged the Court to dismiss it.

In the appellants brief of

argument, learned counsel distilled five issues for determination to wit:
3.1 Whether the learned trial judge acted within jurisdiction by sentencing the accused to five (5) years imprisonment under Section 451 (malicious damage) and Section 210 (witchcraft) of Criminal Code in the judgment delivered on 22nd September, 2014.
3.2 Whether the learned trial judge acted within jurisdiction when he altered or changed sentences from “concurrently” to “consecutively” on 26th September, 2014 after the judgment had already been read on 22nd September, 2014.
3.3 Whether the Learned trial judge failed or refused or neglected to evaluate, the evidence, exhibits and documents before it properly resulting in unfair trial, lack of fair hearing and perverse judgment.
3.4 Whether the learned trial judge exhibited manifest bias against the accused in evaluation of evidence before the Court.
3.5 Whether the judgment of the trial Court is against the weight of the evidence adduced at the trial by the Appellant/Applicant.

Admirably, respondents counsel adopted the five issues crafted by the appellants counsel.

Arguments on issues:
Issue one:
Learned counsel for the appellant submitted that the lower Court had no jurisdiction to pass the sentences of 5 years imprisonment on the appellant contrary to Section 451(1) and 210(b) and (d) of the Criminal Code which provided for 2 years imprisonment. He posited that a Court or parties could not confer jurisdiction on a Court. He relied on Okolo v. UBN Plc (2004) All FWLR (Pt. 197) 981. He added that where a Court acted outside its jurisdiction, the decision would be a nullity. He cited Akegbejo v. Ataga (1998) 1 NWLR (Pt. 534) 459. He explained that jurisdiction is determined by the existing law at the time of the commission of the offence. He referred to Ukwu v. Bunge (1997) 8 NWLR (Pt. 518) 527. He noted that a Court must follow the procedure in a statute. He cited Fed. Govt. of Nigeria v. Zebra (2003) 1 MJSC 5.

For the respondent, learned counsel conceded that the lower Court wrongly sentenced the appellant to 5 years imprisonment instead of 2 years. He however described it as an irregularity which caused no miscarriage of justice. He noted that an appeal is a re-hearing. He cited Abdullahi v. State (2008) 3 NCC 549.

He urged the Court to correct the error in the sentence. He relied on Section 15 of the Court of Appeal Act; Shalla v. State (2008) 3 NCC 182. He added that an appeal Court could reduce or vary conviction for a lesser offence if a more grievous one was found unproven. He cited Adava v. State (2007) 2 NCC 191.

On points of law, learned appellants counsel insisted that, based on the concession, the decision was a nullity and should be set aside. He cited Ofem I. Effiom v. Eteng Arikpo Eteng: Appeal No. CA/C/126/2014 (unreported).

Issue two:
Learned counsel for the appellant submitted that the lower Court had no jurisdiction to cancel concurrently and replace it with consecutively in its decision on 26th September, 2014. He reasoned that the lower Court, after delivery of the judgment, had become functus officio and had no power to review it nor expand its jurisdiction. He relied on N.I.C.O.N v P.I.E. Co. Ltd. (1990) 1 NWLR (Pt. 129) 701; Erhueh v. INEC (2003) FWLR (Pt. 137) 1066; Tukur v. Govt. of Gongola State (1989) NWLR (Pt. 117) 517. He stated that no mistake was shown to warrant the correction. He insisted that the alteration

vitiated the judgment.

On behalf of the respondent, learned counsel contended that it was not indicated any where in the record, compiled by the appellant, that the correction was made on 26th September, 2014. He added that the appellant had not followed the procedure to challenge record. He cited Saidu v. State (2011) 6 NCC 126. He insisted that the correction was made in the open Court on 22nd September, 2014.

On points of law, learned appellants counsel took the view that the respondent filed no affidavit to show that the correction was on 22nd September, 2014.

Issue three:
Learned counsel for the appellant submitted that the lower Court failed in its duty to consider all the issues and defences raised contrary to the law. He referred to Okonjo v. Njokanma (1991) 7 NWLR (Pt. 202) 131; Okwara v. Okwara (1997) 11 NWLR (Pt. 572) 160. He noted that the lower Court wrongly admitted documents, Exhibits A4C, A4D, A4E, A4F, H1-H3, attached to the petition, Exhibit A, when they were not signed. He cited Aiki v. Idowu (2006) All FWLR (Pt. 292) 363; Adefarasin v. Dayekh (2007) All FWLR (Pt. 348) 913. He stated the meaning of fair hearing

as noted in Magna Maritime Ltd. v. Oteju (2005) 22 NSCQR (Pt. 1) 295. He asserted that the judgment denied the appellant fair hearing. He referred to Mene kenon v. Tekam (2001) 9 MJSC 118.

Learned counsel posited that the lower Court wrongly relied on the hearsay evidence of PW2: who did not witness the commission of the offence and tendered Exhibits H1-H3, not made by him, and could not be cross-examined on them. He relied on Maigoro v. Bashir (2000) FWLR (Pt. 19) 553; Ekpo v. State (2001) FWLR (Pt. 53) 454. He described the action of the lower Court as unfair trial. He cited Mene kenon v. Tekam (supra). He said that the judgment was perverse. He cited Uwah v. Akpabio (2014) 2 MJSC (Pt. 11).

Learned counsel postulated that the lower Court failed to properly evaluate the evidence when it relied on the contradictory evidence of the respondent. He highlighted the contradictions in the evidence of PW1 and PW3 in respect of the destruction of the buildings, the escape of the complainant, the distance between the hiding place of the complainant and his house and the removal of the complainants shirt before the village council. He persisted that the

contradictions were material to vitiate the respondents case. He relied on Administrator General and Public Trustees, Delta State v. Ogogo (2006) All FWLR (Pt. 292) 261. He stated that judgment was founded on suspicion and speculation, as no evidence showed that the appellant committed the offence, and it should not stand. He cited State v. Ogbubunjo (2001) 2 ACLR 527; Abacha v. State (2007) 7 SCNJ 35; Onah v. State (1985) 3 NWLR (Pt. 12) 263.

Learned counsel contended that the lower Court wrongly applied circumstantial evidence in the case. He relied on Aiguoreghian v. State (2004) 3 NWLR (Pt. 860) 367. He observed that the lower Court wrongly placed common intention above presumption of innocence under the Constitution. He cited Onuoha v. State (1998) 5 NWLR (Pt. 548) 118. He noted that the appellants extra-judicial statement was not a confessional statement to base a conviction. He referred to Ogugu v. State (1990) 2 NWLR (Pt. 134) 539. He added that an extra-judicial statement or evidence of an accused would not bind a co-accused except the latter adopted it. He relied on Suberu v. State (2010) 41 NSCQR (Pt. 2) 1169; Emeka v. State (2001)

FWLR (Pt. 66) 682.

On the side of the respondent, learned counsel argued that the appellant, who compiled the record, failed to comply with the provision of Order 17 Rule 9 (1)(f) of the Court of Appeal Rules, 2016, by including documentary exhibits in it; so that this Court could not evaluate exhibits not before it. He added that there were no grave contradictions in the respondents evidence to vitiate the decision. He claimed that the lower Court rightly relied on circumstantial evidence. He asserted that the extra-judicial statement was admitted without objection.

Issue four:
Learned counsel for the appellant highlighted the meanings of bias or real likelihood of bias as noted in Mene kenon v. Tekam (2001) 9 MJSC 118; Denge v Ndakwoji (sic) (1992) 1 NWLR (Pt. 216) 221; Azuokwu v. Nwokanma (2005) 22 NSCQR 385. He stated the test of bias. He cited Okpanachi v. Commissioner for Works (1997) 6 NWLR (Pt. 509) 482. He enumerated the areas of bias showed by the lower Court to include: reliance on uncorroborated evidence, refusal of appellants objection to the charge; assumption of evidence, treating non-objection to the admissibility

of the extra-judicial statement as admission of facts, overlooking the contradictions in the evidence of the respondents witnesses, descending into the arena against the appellant and meting out maximum punishment for stealing without proof of ownership of the stolen property.

On behalf of the respondent, learned counsel adopted his arguments under issue three. He described the counsels arguments under the issue as bias against the lower Court contrary to the law. He cited Abeke v. State (2007) 2 NCC 451.

Issue five:
Learned counsel for the appellant submitted that the evidence of the respondent was doubtful and lacking in credibility as no evidence showed that the appellant committed the offence. He listed the procedure of consideration of evidence in a joint trial as noted in State v. Azeez (2008) All FWLR (Pt. 424) 1431. He maintained that the tests in the procedure were not satisfied by the lower Court.

For the respondent, learned counsel contended that the issue was based on a ground of appeal not applicable to criminal appeals. He posited that the ground applied only to civil appeals. He relied on Order 7 Rule 3 of

the Court of Appeal Rules, 2016. He urged the Court to strike out the issue. He concluded that the respondent discharged the burden of proof beyond reasonable doubt against the appellant. He cited Shurumo v. State (2011) 6 NCC 84.

Resolution of the issues:
In an abiding loyalty to the injunction of the law, I will settle issue one first. The reason is simple. It orbits within the four walls of jurisdiction. Jurisdiction is the authority of a Court to determine any dispute tabled before it by contending parties, see Dariye v. FRN (2015) 10 NWLR (Pt. 1467) 325; Mbah v. State (2014) 10 NWLR (Pt. 1415) 316. The law compels a Court to treat first an issue of jurisdiction where it germinates in any proceeding. I will pay due obeisance to this legal commandment in order not to insult the law.

Now, the gravamen of the issue is that the lower Court exceeded its sentencing jurisdiction in the provisions of Sections 451 and 210(f) of the Criminal Code when it sentenced the appellant to five years imprisonment against the maximum two years imprisonment enshrined in them. Admirably, the respondents counsel conceded that the lower Court fractured the

law in passing the sentence of five years imprisonment on the appellant. The concession is a commendable act and art of advocacy. It has conserved the scarce juridical space and time which would have been expended in determination of the propriety or otherwise of the sentences. Besides, it has canalised the stubborn issue within a narrow compass.
The remnant casus belli in the issue, which the parties were diametrically opposed on, is the legality or otherwise of substituting the wrong sentences with the lawful terms. In this wise, the provision of Section 19(3) of the Court of Appeal Act, Cap. C36, Laws of the Federation of Nigeria, 2004 comes in handy. Due to its Olympian status on the nagging and decisive point, I will pluck it out, where it is domiciled in the Court of Appeal Act, ipsissima verba, as follows:
(3) On an appeal against sentence or, subject to the provisions of this Act, or on an appeal against conviction, the Court of Appeal shall, if it thinks that a different sentence should have been passed, quash the sentence passed at the trial and pass such other sentence warranted in law (whether more or less severe) in substitution therefor

as it thinks ought to have been passed, and if not of that opinion shall, in the case of an appeal against sentence, dismiss the appeal.
This provision is submissive to easy appreciation. To this end, the law mandates the Court to accord it its ordinary grammatical meaning without any embellishments, see FRN v. Osahon (2006) 5 NWLR (Pt. 973) 361; Nigerian Army v. AminunKano (2010) 5 NWLR (Pt. 1188) 429; Agbiti v. Nigerian Navy (2011) 14 NWLR (Pt. 1236) 175; Nyame v. FRN (2010) 7 NWLR (Pt. 1193) 344; Amoshima v. State (2011) 14 NWLR (Pt. 1268) 530; FRN v. Mohammed (2014) 9 NWLR (Pt. 1413) 551; Martins v. COP (2013) 4 NWLR (Pt. 1343) 25. I will use this liberal rule as the beacon in the interpretation of the provisions.
The provision, in an unequivocal term, grants this Court, where it reaches a conclusion that a different sentence should have been passed on a convict, the liberty and authority to substitute the wrong sentence, passed by the trial Court, with the one endorsed by law whether the latter is more or less severe. The import of this provision, with due deference, exposes the poverty of the scintillating submission of the learned

appellants counsel on the point. I will, without option, act according to the letter and spirit of the law as entrenched in the provision. In other words, armed with the unbridled licence donated by the provision, I will replace the sentences, in the twilight of this judgment, to fall within the perimeter of the provision.
However, for purposes of clarity, since the lower Court acted beyond the jurisdiction vested on it by Sections 451 and 210(f) of the Criminal Code and the appellant will get a lighter sentence, this issue is resolved in favour of the appellant and against the respondent.

Having dispensed with issue one, I proceed to attend to issue two. The meat of the issue is plain. It accuses the lower Court of illegal alteration of the tenure of the sentence passed on the appellant by changing concurrently to consecutively on 26th September, 2014 after its delivery of the judgment on 22nd September, 2014. The appellants grudge is, deeply, rooted in the lower Courts failure to respect the doctrine of functus officio.

In the eyes of the law, the lower Court, on delivery of that judgment, became functus officio, a Latin

maxim that imports- Task performed without further function vis-a-vis a matter, see Dingyadi v. INEC (No.1) (2010) 18 NWLR (Pt. 1224) 1; Mohammed v. Husseini (1998) 11/12 SCNJ 136/(1998) 14 NWLR (Pt. 584) 108; Olowu v. Abolore (1993) 6 SCNJ (Pt. 1) 1/(1993) 5 NWLR (Pt.293) 255; Inakoju v. Adeleke (2007) 4 NWLR (Pt. 1025) 423; Ihedioha v. Okorocha (2016) 1 NWLR (Pt. 1492) 147; Ngere v. Okuruket XIV (2017) 5 NWLR (Pt. 1559) 440; Akahall & Sons Ltd. v. NDIC (2017) 7 NWLR (Pt. 1564) 194.
Be that as it may, the hallowed doctrine of functus officio is elastic. In other words, it is dotted with notable exceptions. The one relevant here is located in the slip rule whereby the law grants the Court the nod to make correction of clerical errors in a judgment, see A. T. Ltd. v. A.D.H. Ltd. (2007) 15 NWLR (Pt. 1056) 118; Dingyadi v. INEC (supra); Famu v. Kassim (2013) 7 NWLR (Pt. 1352) 166; Citec Intl Estates Ltd. v. Francis (2014) 8 NWLR (Pt. 1408) 139; Aroso v. Enterprise Bank Ltd. (2015) 13 NWLR (Pt. 1476) 306; A.-G, Kwara State v. Lawal (2018) 3 NWLR (Pt. 1606) 266.

The appellants coup de main is that the change was

not made on 22nd September, 2014, the delivery date of the judgment, but on 26th September, 2014. I have visited the record, the touchstone of the appeal, especially at the residence of the judgment which colonises pages 137-157 of it. In the penultimate sentence, found at page 157 of the record, the last typewritten word concurrently was cancelled, in ink, and replaced with the word consecutively with the signature of the presiding Judex of the lower Court beside/adjacent to it. The date, 22nd September, 2014, which appears at the cradle of the judgment on page 137 of the record, is reflected at the last page: 157 of the record. Put simply, there is only one date showcased in the judgment, id est, 22nd September, 2014.

22nd September, 2014. In APC v. INEC (2015) 8 NWLR (Pt. 1462) 531 at 567, I.T. Muhammad JSC, speaking for the Supreme Court, incisively and decisively, opined:
Thirdly, it stands to reason that where a document has been signed and in it is provided a specific date of commencement or date when effect is to be given to or action to be taken, that date must be taken to be the effective or commencement date irrespective of the date when the officer signing the document on behalf of the authority appended his signature. That specific date of commencement can be with retrospective effect, it may commence immediately after or on the date of signing or it may even be in the future.
Taking shelter under the sanctuary of this magisterial pronouncement, it is safe to presume that the cancellation, which swapped concurrently with consecutively, was made in facie curiae on 22nd September, 2014 and not ex facie curiae on 26th September, 2014.

Furthermore, I have given a clinical examination to the 22-page judgment of the lower Court. I am unable to find, even with the prying eagle eye of a Court, where 26th September, 2014 resides in

it. Put bluntly, the said date is alien to it since it is glaringly absent from it. Put the other way round, the said date, being brandished by the appellant as the cancellation date, is not, in the least, accommodated in the record: the bible of the appeal. It settled law, beyond any peradventure of doubt, that the Court and the parties are bound by the record. Neither of them can factor into a record what is not there nor subtract from its content. An appellate Court must read the record in its exact content, see Udo v. State (2006) 15 NWLR (Pt. 1001) 179; Bassey v. State (2012) 12 NWLR (Pt. 1314) 209; Osung v. State (2012) 18 NWLR (Pt. 1332) 256; Mohammed v. State (2015) 13 NWLR (Pt. 1476) 276; Offor v. State (2012) 18 NWLR (Pt. 1333) 421; State v. John (2013) 12 NWLR (Pt. 1368) 337. It will constitute a defilement of the law for this Court to add 26th September, 2014 to the record to pacify the appellant. This is another coup de grace in the appellants dazzling arguments on the issue.

That is not all. The judgment, sought to be impugned by the appellant, comes within the province of an official act. Section 168(1) of the Evidence Act, 2011,

former Section 150(1) of the defunct Evidence Act, 2004, states: When any judicial or official act is shown to have been done in a manner substantially regular, it is presumed that formal requisites for its validity were complied with. In the Latin days of the law, it was: Omnia Praesumuntur rite et solemniter esse acta donec probetur in contrarium all things are presumed to have been legitimately done, until the contrary is proved. Of course, this statutory presumption holds sway in our jurisprudence, see Okeke v. State (2003) 15 NWLR (Pt. 842) 25; Olabode v. The State (2007) All FWLR (Pt. 389) 1301; Torri v. N.P.S.N. (2011) 13 NWLR (Pt. 1264) 365; Citec Int’l Estates Ltd. v. Francis (2014) 8 NWLR (Pt. 1408) 139; Adegbuyi v. APC (2015) 2 NWLR (Pt. 1442) 1.
The onus probandi rested on the appellant to offer rebuttal evidence, that the alteration was executed on 26th September, 2014, to neutralise the beneficient presumption that the judgment enjoys in criminal jurisprudence. The appellant, in his infinite wisdom, starved this Court of the needed rebuttal evidence. Alas, the appellant failed, woefully, to proffer the requisite

evidence to refute the inelastic statutory presumption.

In the light of this legal anatomy, the allegation of mutilating the judgment on 26th September, 2014, framed by the appellant against the lower Court is highly unfounded and unsustainable. It is lame and cannot fly. In the end, I have no choice than to resolve the issue two against the appellant and in favour of the respondent.

That brings me to the treatment of issue three. It chastises the lower Courts evaluation of the evidence from different angles. Put simply, it is riddled with sea of side or adjunct issues itching for distinction determination.

principle of law, co-equal jurisdiction of a trial Court and appellate Court, douses the appellants quarrel that the lower Court did not evaluate the documentary evidence. This is because, this Court is in as a good position of the lower Court to assess them.

One of the appellants chief grievances is that the lower Court relied on inadmissible hearsay evidence. In our adjectival law, a witness is expected to testify on oath, or affirmation, on what he knows personally. Where a witness gives evidence on what another person told him about events, then it is not direct evidence which has acquired the nickname: hearsay or second hand evidence. In view of the law, hearsay evidence can only be used to inform a Court about what a witness heard another say and not establish the truth of an event, see Section 37, 38 and 126 of the Evidence Act, 2011; (former Section 77 of the Evidence Act, 2004); Kasa v. State (1994) 5 NWLR (Pt. 344) 269; FRN v. Usman (2012) 8 NWLR (Pt. 1301) 141; Theophilus v. State (1996) 1 NWLR (Pt. 423) 139; Doma v. INEC (2012) 13 NWLR (Pt. 1317) 297; Onovo v. Mba (2014) 14 NWLR (Pt. 1427) 391; Kakih v. PDP (2014) 15 NWLR (Pt.

1430) 374; Opara v. A. G. Fed. (2017) 9 NWLR (Pt. 1569) 61; State v. Masiga (2018) 8 NWLR (Pt. 1622) 383.
The appellant specifically decried the evidence of PW2 as hearsay and inadmissible in law. PW2 was Inspector I. Dagogo-Jack. He was the police officer who investigated the case and arraigned the appellant in Court. The law has totally divorced the evidence of an investigating police officer (IPO) of a case from hearsay and adorned it with the cap of admissible evidence. In Anyasodor v. State (2018) 8 NWLR (Pt.1620) 107 at 125 Sanusi, JSC incisively opined:
On the appellants counsels submission that the testimony of PW3 was hearsay, I am also at one with the lower Courts conclusion that such testimony as given by the PW3 was not and cannot be described as hearsay evidence. To my mind, all that the PW3 (IPO) did was to give evidence on what he actually saw or had witnessed, or discovered in the course of his work as an investigator. His testimony on what the appellant told him was positive and direct which was narrated to him by the appellant and other witnesses he came into contract (sic) with in the course of his

investigation of the case. Evidence of an IPO is never to be tagged as hearsay. This Court in a plethora of its decided authorities had adjudged such evidence as direct and positive evidence and therefore not hearsay evidence. See Arogundade v. The State (2009) All FWLR (Pt. 469) (SC) 423; (2009) 6 NWLR (Pt. 1136) 165.
See also Olaoye v. State (2018) 8 NWLR (Pt. 1621) 281.
These ex cathedra authorities, with due respect, wholly castrate the appellants counsels elegant contention on the point. The contention is disabled in their presence. I therefore refuse the appellants request to expel the evidence of PW2 on the footing of hearsay. Contrariwise, I welcome the evidence as usable in the appeal.

One of the appellants grouses, indeed one of his trump cards on the issue, is that the respondents evidence were infested with contradictions which the lower Court should not have acted on. Etymologically, contradiction, like most legal terminologies, traces its paternity to the Latin word, contradictum, an amalgam of contra and dictum, which denotes to say the

opposite. Two pieces of evidence of a witness or witnesses are contradictory when they are incompatible and one affirms the opposite of the other. Indisputably, the law frowns upon witness contradicting themselves by giving divergent views on a point. However, for contradiction to be fatal to any case, it must be so material to the extent that it casts serious doubts on the entire case presented by a party against whom it is raised. Put the other way round, collateral contradiction will not constitute dents on a partys case, see Ebeinwe v. State (2011) 7 NWLR (Pt, 1246) 402; Attah v. State (2010) 10 NWLR (Pt. 1201) 190; Olayinka v. State (2007) 9 NWLR (Pt.1040) 561; Akpa v. State (2008) 14 NWLR (Pt. 1106) 72; Eke v. State (2011) 3 NWLR (Pt. 1235) 589; Babarinde v. State (2011) 3 NWLR (Pt. 1235) 568; Olatinwo v. State (2013) 8 NWLR (Pt. 1355) 126; Mohammed v. State (2014) 12 NWLR (pt. 1421) 387; Emeka v. State (2014) 13 NWLR (Pt. 1425) 614; Bello v. C.O.P (2018) 2 NWLR (Pt. 1603) 267; Idi v. State (2018) 4 NWLR (Pt. 1610) 359; Adegbite v. State (2018) 5 NWLR (Pt. 1612) 183; Ogu v. C.O.P (supra); Idi v. State (2018) 4 NWLR (Pt. 1610) 359; Anyasodor

v. State (2018) 8 NWLR (Pt. 1620) 107.
The learned appellants counsel identified some portions of the evidence of the respondents witnesses, PW1 and PW2, that were plagued by contradiction to include: destruction of PW1s building (complainants) and bus, the reason for the complainants escape from the community, the distance between the place the complainant hid himself and his house and the reason the complainant removed his shirt before the village council.
I have, in total allegiance to the dictate of the law, situated these highlighted areas in the respondents evidence with the harmful incidents of contradiction x-rayed above. The raison detre for the juxtaposition is plain. It is to ascertain if those pieces of evidence are soiled by contradiction. To begin with, the alleged inconsistency on the destruction of the property is fake. PW1 testified, in the crucible of cross-examination, that his vennetta bus was burnt by the accused persons. PW3, in Exhibit J, referred to PW1s building and not a bus. The evidence of PW1 and PW3 are congruent on PW1s reason for leaving the community

fear of being killed. The distance between the PW1s house and his hiding abode is of no moment. The important thing was that PW1 was smoked out of his premises by the culprits. In the same vein, whether voluntary or under command, why the PW1 removed his shirt before the village council is immaterial. The bottom line is that the PW1 removed his shirt before the village council, presided by the Obong, as a prelude to the native investigation of the allegation against him.
It flows to my mind that these pockets of differences in evidence are infinitesimal/minor and do not, in the least, qualify as material contradictions. They are rather discrepancies that are impotent to ruin the pungent evidence of the respondent professed by PW1 and PW3. The law embraces discrepancies in evidence of witnesses in that minor variations in their testimonies merely imbue their evidence with imprimatur of truth, see Eke v. State (supra), at 665, per Fabiyi, JSC; Muhd v. State (2018) 5 NWLR (Pt. 1613) 405; Isah v. State (2018) 8 NWLR (Pt. 1621) 346. It follows that the minute differences in the narration of evidence attest to the

veracity of the witnesses on the point.
At any rate, the law gives witnesses the liberty to recount events with slight differences not in a robotic manner. It means, that witnesses are not expected, being human and not automatic machines, to proffer parol evidence with regimented accuracy. Human memories fade with the passage of time, even in hours, vis-??-vis events. Where witnesses give evidence on the same matter to the exact minutest details, their testimonies will be treated with circumspect as they will be guilty of evidential tutorage, see Egwumi v. State (2013) 13 NWRL (Pt. 1372) 525; Galadima v. State (2017) 14 NWLR (Pt. 1585) 187. On this premise, I am not armed with any legal justification to ostracise those pieces of evidence from the appeal on account of phoney or non-existent contradictions.

Again, the appellant derided the lower Courts bases for utilisation of circumstantial evidence in the case. By way of prefatory observations, it is important to appreciate the purport and elements of circumstantial evidence in our criminal justice system. In Mohammed v. State (2007) 11 NWLR (Pt. 1045) 303 at 327; I.T. Muhammad, JSC,

(now Ag. CJN) explained it in these illuminating words:
It is the proof of circumstances from which, according to the ordinary course of human affairs the existence of some fact may reasonably be presumed. It is that evidence of surrounding circumstances which by un-designed coincidence, is capable of proving a proposition with the accuracy of mathematics.
It has been described, at times, as the best evidence in that witnesses can lie, but circumstances cannot lie. For it to ground conviction, it must be positive, compelling, direct and link an accused with the offence. It is an amphibious evidence in that it has a place in criminal and civil proceedings, see Usman v. State (2013) 12 NWLR (Pt. 1367) 76; Ismail v. State (2011) 17 NWLR (Pt. 1277) 601; Odogwu v. State (2013) 14 NWLR (Pt. 1373) 74; Oguno v. State (2013) 15 NWLR (Pt. 1376) 1; Yakubu v. State (2014) 8 NWLR (Pt. 1408) 111; Usman v. State (2014) 12 NWLR (Pt. 1421) 207; Udor v. State (2014) 12 NWLR (Pt. 1422) 548; Aikhadueki v. State (2014) 15 NWLR (Pt. 1431) 530; Abokokuyanro v. State (2016) 9 NWLR (Pt. 1516) 110; Ogogovie v. State (2016) 12 NWLR (Pt. 1527) 468; Ezeuko v.

State (supra); Thomas v. State (2017) 9 NWLR (Pt. 1570) 230; Igbikis v. State (2017) 11 NWLR (Pt. 1575) 126. Circumstantial evidence is one of the three ways of proving commission of crimes. The other two are through eye witness and confessional statement, see Igri v. State (2012) 16 NWLR (Pt. 1327) 522; Oguno v. State (2013) 15 NWLR (Pt. 1376) 1; Ibrahim v. State (2014) 3 NWLR (Pt. 1394) 305; Ogedengbe v. State (2014) 12 NWLR (Pt. 1421) 338; Umar v. State (2014) 13 NWLR (Pt. 1425) 497.
In so far as circumstantial evidence constitutes one of the ways, recognised by law, of establishing commission of crimes, the lower Court, to my mind, did not injure the law by inviting it to its aid. On the contrary, it paid total obedience to the law when it employed it in the process of determination of the case. The appellant, in his infinite wisdom, denied this Court of the reasons indicating that the lower Courts deployment of circumstantial evidence was unfair to him/his case. I find no justification, in law, to label the lower Courts judicial exercise as one that smacked of miscarriage of justice: A grossly unfair outcome in judicial

proceedings as when a defendant is convicted despite lack of evidence on an essential elements of crime, see Adeyemi v. State (2014) 13 NWLR (Pt. 1423) 132; Itu v. State (2016) 5 NWLR (Pt. 1506) 446. The appellant was not smeared/inflicted with any negative incidents of miscarriage of justice. In essence, I hold the view that the lower Court did not transgress the law on circumstantial evidence to warrant the intervention of this Court.

The learned appellants counsel, during trial, registered a vehement objection to the admissibility of Exhibits H1 – H3, the photographs and their negatives tendered by PW2. The ground of protestation was that PW2 was not their maker to be cross-examined on them. Learned counsel re-registered his opposition in this Court. Incontestably, a document must be tendered by its maker or else it will be declared a documentary hearsay devoid of any probative value, see Buhari v. INEC (2008) 18 NWLR (Pt. 1120) 246; Nyesom v. Peterside (2016) 7 NWLR (Pt. 1512) 452; Ikpeazu v. Otti (2016) 8 NWLR (Pt. 1513) 38; Okereke v. Umahi (2016) 11 NWLR (Pt. 1524) 438.
Nevertheless, there is a rider to this principle of law which

is, deeply, ingrained in criminal proceedings. It is a settled law, in criminal matters, that a co-police officer can tender a document recorded by another police officer when the reason for the absence of its maker is explained to the Court, see Edoho v. State (2010) 14 NWLR (P. 1214) 651; John v. State (2011) 18 NWLR (Pt. 1278) 353. PW2, through whom Exhibits H-H3 were tendered, in the cross-fire of cross-examination, at pages 101-102 of the record, testified that the police photographer had been transferred out of the headquarters where PW2 was serving. PW2, in keeping with the law, explained the reason for the inability of the respondent to field the maker of the exhibits. In effect, the lower Courts admission of the exhibits was in tandem with the injunction of the law. I will not interfere with a judicial exercise that is not hostile to the law.

Before this Court, the learned appellants counsel greeted the lower Courts usage of Exhibits A4C – A4F, attached to Exhibit A, with a stiff opposition. The objection is predicated on the absence of signature of the maker on them. Unarguably, an unsigned document is worthless and cannot

be relied on by a Court, see Omega Bank (Nig.) Plc. v. O. B. C. Ltd. (2005) 8 NWLR (Pt. 928) 547. The unsigned status of those documents erodes their source and authenticity. The lower Court, seriously, offended the law when it attached probative value to them.

Nonetheless, the appellant managed to score a pyrrhic/barren victory on the finding on Exhibits A4C A4F. The reason is not far-fetched. There are tons of other concrete evidence which drown the efficacy of those exhibits. In the sight of the law, a wrongful admission of evidence shall not be a ground to reverse a decision if an appellate Court finds that the decision would have been the same without the jettisoned evidence, see Section 251 of the Evidence Act, 2011, former Section 227 of the Evidence Act, 2004; Ogunsina v. Matanmi (2001) 9 NWLR (Pt. 718) 286; Omomeji v. Kolawole (2008) 2 NWLR (Pt. 1106) 180; Archibong v. State (2006) 14 NWLR (Pt. 1000) 349; Adeyemi v. State (2014) 13 NWLR (Pt. 1433) 132. Indubitably, there are an avalanche of evidence on record that buttress and solidify the lower Court’s decision.

The appellant branded the lower Courts evaluation of the evidence

as perverse. A verdict of Court is perverse when it runs counter to the pleadings and evidence before it, a Court takes into account matters it ought not to take into consideration, a Court shuts its eyes to the evidence, a Court takes irrelevant matters into account or it has occasioned a miscarriage of justice, see FRN v. Barminas (2017) 15 NWLR (Pt. 1588) 177; Igbikis v. State (2017) 11 NWLR (Pt. 1575) 126.
I have matched the evidential evaluation with the incidents of perverse decision outlined above. It can be gleaned from the comparison, that the lower Court did not invoke extraneous or foreign evidence in the evaluation of the evidence presented before it. Nor did it close its eyes to pieces of evidence that cried for its attention in the judgment. It confined itself to the viva voce and documentary evidence furnished before it by the parties. Having regard to the foregoing, I hold the considered view, that the evidential evaluation was not trapped in the intractable web of perversity.

For the sake of completeness, I have given a microscopic examination to the evidence offered by the respondents witnesses, PW1, PW3, which

monopolise pages 84, 112 of the record. I have perused them with the finery of a toothcomb. Interestingly, they are comprehension friendly. A communal reading of them amply, reveals that the appellant was particeps criminis vis-??-vis the alleged crimes. This is more so when the law treats/ascribes to the evidence of a victim, the PW1 herein, as the eye witness evidence, see Giki v. State (2018) 6 NWLR (Pt. 1615) 237; Chidozie v. C.O.P (2018) 6 NWLR (Pt. 1615) 373; Ogu v. C.O.P (2018) 8 NWLR (Pt. 1620) 134. Put simply, the respondent proved the necessary ingredients of the offences preferred against the appellant beyond reasonable doubt as decreed by Section 135 (1) of the Evidence Act, 2011. After all, proof beyond reasonable doubt does not evince proof beyond all iota/shadow of doubt, see Banjo v. State (2013) 16 NWLR (Pt. 1331) 455; Umar v. State (2014) 13 NWLR (Pt. 1425) 497; Dibia v. State (2017) 12 NWLR (Pt. 1579) 196; Agu v. State (2017) 10 NWLR (Pt. 1573) 171; Thomas v. State (2017) 9 NWLR (Pt. 1570) 230.
In the legal parlance, proof beyond reasonable doubt is attained when the evidence is so strong against a man as to leave

only a remote possibility in his favour which can be dismissed with a sentence of course it is possible but not in the least probable, see Maigari v. State (2013) 17 NWLR (Pt. 1384) 425. It implies that the solemn finding of the lower Court, which inculpates the appellant, as the perpetrator of the offences charged, is unassailable. Due to its unimpeachable status, this Court is robbed of the jurisdiction to tinker with it, see Olatunbosun v. State (2013) 11 NWLR (Pt. 1382) 167; Ogie v. State (2017) 16 NWLR (Pt. 1591) 287. I am least prepared to infuriate the law for fear of its wrath. In effect, all the strictures, which the appellant rained/poured on the lower Courts evaluation of the evidence, fly in the face of the law. In the end, I will not hesitate to resolve issue three against the appellant and in favour of the respondent.

I will proceed to handle issue four. The meat of the issue is plain. It castigates the lower Courts evaluation of evidence as fraught with bias against the appellant.
As a necessary prelude, bias has been defined as an “opinion or feeling in favour of one side in a dispute or argument resulting

in the likelihood that the Judge so influenced will be unable to hold an even scale”, Kenon v. Tekam (2001) 14 NWLR (Pt. 732) 12 at 41 – 42, per Ayoola, JSC; Babarinde v. State (2014) 3 NWLR (Pt. 1395) 568. It has been described as “anything which tends or may be regarded as tending to cause a Judge to decide a case otherwise than on evidence”, Egwumi v. State (2013) 13 NWLR (Pt. 1372) 525 at 554, per Rhodes-Vivour JSC. Judicial bias connotes “A judge’s bias towards one or more of the parties to a case over which the judge presides” Womiloju v. Anibire (2010) 10 NWLR (Pt. 1203) 545 at 571, per Adekeye, JSC; Babarinde v. State (supra). Thus, bias denotes a tendency of partiality in a judex/adjudicator which prevents him from objective consideration of a controversy before him. Then real likelihood of bias, which is the sole determinant of bias, is a substantial possibility of bias, see The Secretary, Iwo Central L. G. v. Adio (2000) 8 NWLR (Pt. 667) 115 at 135; LPDC v. Fawehinmi (1985) 2 NWLR (Pt. 7) 300.
In determining the presence of bias or real likelihood of bias, the Court looks at the impression of a right-minded person over the proceedings,

see Metropolitan Properties Ltd. v. Lannon (1968) 3 All ER 304; The Secretary, Iwo Central L.G v. Adio (supra); Abiola v. FRN (1995) 7 NWLR (Pt. 405) 1; Kenon v. Tekam (supra) Womiloju v. Anibire (supra); Agbiti v. Nigerian Navy (2011) 4 NWLR (Pt. 1236) 175; Babarinde v. State (supra).
The appellant, through counsel, enumerated evidence of bias, committed by the lower Court, as follows: reliance on uncorrobated evidence, refusal of appellants objection to the charge, assumption of evidence, treating non-opposition to admissibility of extra-judicial statements as admission of facts, overlooking the contradictions in the evidence of the respondents witnesses, descending into the arena against the appellant and meting out maximum punishment for stealing without proof of ownership of the stolen property.
I have subjected the 22-page judgment, sought to be decimated, which is wrapped between pages 137-157 of the record, to merciless scrutiny. Admirably, it does not harbour any ambiguity. In the first place, the offences preferred against the appellant, inter alia, are not ones that require corroboration. The other listed evidence of bias have

been extensivel dealt in the preceding issues and solemn findings reached on them after due consultation with the law. To this end, it is my humble, view that a reasonable man, whose opinion is the accepted barometer to gauge the presence of bias or real likelihood of bias, cannot, given the facts and circumstances of the case, conclude that the lower Court exhibited bias against the appellant. The lower Court merely performed its primary duty of evaluation of evidence professed by the parties. I cannot find any judicial bias shown by it, to warrant the admonition of Lord Denning, MR in Metropolitan Properties Ltd. v. Lannon (1968) 3 All ER 304 at 310 that: Justice must be rooted in confidence; and confidence is destroyed when the right-minded people go away thinking: The judge was biased. The allegation of bias is a pseudo one and the lower court is not guilty of it. Again, this issue cannot advance, an inch, the chances of success of the appeal. The appellants dazzling argument on it, with due reverence, is rendered idle. In effect, I dishonour the inciting invitation of the appellant to crucify the decision of the lower

Court on the undeserved altar of bias for want of legal justification. In the result, I resolve the issue four against the appellant and in favour of the respondent.

Lastly, it remains to thrash out issue five. It criticises the lower Courts judgment as against the weight of evidence.
The respondent greeted the issue with an objection on the reason that it emanated from a ground of appeal not applicable to criminal appeal. The issue is erected/weaved around ground four of the appeal, which reads: The judgment of the trial Court is against the weight of the evidence adduced at the trial by the Appellant/Applicant. This is a classic exemplification of an omnibus ground of appeal in civil appeal. In criminal appeal, the omnibus ground is usually couched: That the verdict is unreasonable and cannot be supported having regard to the evidence, see Atuyeye v. Ashamu (1987) 18 NSCC (Pt. 1) 117/(1987) 1 NWLR (Pt. 49) 267. The difference in the language is occasioned by the fact that in criminal matters, the prosecution must prove its case beyond reasonable doubt; while civil matters are decided on preponderance of evidence, id est, which

evidence outweighs the other.
I have married the phraseology of omnibus ground of appeal in criminal matter with the appellants omnibus ground displayed above. Undoubtedly, the appellants omnibus ground runs foul of the nature of general ground in criminal appeals. However, although the ground is stained with incompetence, the Court, in an effort to do substantial justice, may allow an amendment in additional grounds or perhaps, ignore it and proceed on the merits of the appeal, see Shehu v. State (2010) 3 SCNJ 343 at 353 per Ogbuagu, JSC. This Court is an apostle of substantial justice, justice that accommodates fair trial on the merits, in that the spirit of the law does not reside in technicalities and formalities, see Bello v. A.-G, Oyo State (1986) 5 NWLR (Pt. 45) 828 at 886. Substantial justice and technical justice, arch enemies in adjudication, had been in a protracted imaginary battle on which to win and arrest the attention of the Nigerian Courts. In the process of the juridical duel, however, the case-law, rightly, intervened and slaughtered technicality and buried it deeply under the temple of

substantial justice. To accede to the respondents request tantamounts to resurrecting the deceased technicality. This will be an affront to the law. I therefore treat the error as a pardonable irregularity committed by the learned appellants counsel.
In the light of this brief survey, I crown the appellants omnibus ground 4, whence the issue emanated from, with the toga of validity. Put starkly, there is no legal justification to classify the issue as an orphan when the omnibus, which parented it, is viable. In effect, the objection, invented by the respondent to snuff life out of the issue in limime, is meritless. It is accordingly overruled and dismissed. I will go on to deal with the issue on its merit.

As already noted, the issue derides the manner the lower Court evaluated the evidence before it. It stems from its tenor and intendment, that it can be conveniently subsumed under issue three which had been considered. At once, flowing from the outcome of issue three, the issue five falls within the constricted four walls of an academic issue. In Plateau State v. A-G., Fed (2006) 3 NWLR (Pt. 967) 346 at 419, Tobi, JSC,

incisively, explained the term, thus:
A suit is academic where it is merely theoretical, makes empty sound, and of no practical utilitarian value to the plaintiff even if judgment is given in his favour. A suit is academic if it is not related to practical situation of human nature and humanity.
It is settled law, that a Court is divested of the necessary jurisdiction to adjudicate over academic disputes. Such academic questions are divorced from live issues which engage the adjudicative attention of the Courts. This is so even if their determination will enrich the jurisprudential content of the law, see A-G., Anambra State v. A.G., Fed. (2005) 9 NWLR (Pt. 931) 572; Ugba v. Suswam (2014) 14 NWLR (Pt. 1427) 264; Salik v. Idris (2014) 15 NWLR (Pt. 1429) 36; FRN v. Borishade (2015) 5 NWLR (Pt. 1451) 155; Danladi v. T.S.H.A. (2015) 2 NWLR (Pt. 1442) 103; FRN v. Dairo (2015) 6 NWLR (Pt. 1452) 141; Daniel v. INEC (2015) 9 NWLR (Pt. 1463) 113; Odedo v. Oguebego (2015) 13 NWLR (Pt. 1476) 229; Dickson v. Sylva (2017) 10 NWLR (Pt. 1573) 299; Olowu v. Building Stock Ltd. (2018) 1 NWLR (Pt. 1601) 343.

Having regard to this current inflexible position of the law, the appellants issue five is, to all intents and purposes, rendered spent. Its consideration by this Court, even if found in favour of the appellant or the respondent, will be of no judicial utilitarian value to either of them premised on the result of issue three. Besides, it is trite that Courts are not clothed with the jurisdiction to adjudicate over academic suit/issues. In total fidelity to the law, I strike out issue five for want of legal justification to treat it.

It remains to assemble the divergent resolutions of the issues. I had resolved issue one in favour of the appellant and the other ones against him. It is vice versa for the respondent. The resolution of issue one in favour of the appellant can only fetch him a reduction in the sentences passed on him regarding the offences of malicious damage and witchcraft.

On the whole, having resolved issue one in favour of the appellant, the destiny of the appeal is obvious. It succeeds partially. Consequently, I allow the appeal in part. Accordingly, I order as follows: Count 1: The fourth convict, Adebisi Augustine Abiola, the appellant, is sentenced to two years IHL or pay

a fine of Fifty Thousand Naira only. Count 3: The fourth convict, Adebisi Augustine Abiola, the appellant, is sentenced to two years IHL. The sentence on count 2 stands.

MOJEED ADEKUNLE OWOADE, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother Obande Festus Ogbuinya, JCA My learned brother has brilliantly and painstakingly dealt with the five (5) issues nominated for the determination of the appeal.
I agree with his reasoning and conclusion in the judgment. I also allow the appeal in part and abide with the consequential orders.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in advance the judgment just delivered by my learned brother, OBANDE F. OGBUINYA, JCA and I am in complete agreement with his reasoning and resolution of all issues settled for determination in this appeal. My learned brother incisively dissected the complaint of the Appellant and resolved it. I have no more to add. I also allow the appeal in part and abide by all the orders made in the leading judgment.

Appearances:

Chief Cletus Okoi For Appellant(s)

E. Amajama, Esq. (DD) with him, J. J. Akor, Esq. (SC II, Ministry of Justice, Cross River State) For Respondent(s)

Appearances

Chief Cletus Okoi For Appellant

AND

E. Amajama, Esq. (DD) with him, J. J. Akor, Esq. (SC II, Ministry of Justice, Cross River State) For Respondent