COMMISSIONER OF POLICE v. H.R.H IGWE OLIVER OKEFI (2019)

COMMISSIONER OF POLICE v. H.R.H IGWE OLIVER OKEFI

(2019)LCN/12965(CA)

In The Court of Appeal of Nigeria

On Friday, the 29th day of March, 2019

CA/E/43C/2017

RATIO

JURISDICTION: JURISDICTION OF A COURT MUST BE ACTIVATED BY DUE PROCESS OF LAW

The law is settled that for a Court to adjudicate on any matter brought before it, its jurisdiction must be activated by due process of law beginning from filing a valid and competent originating process and within the time prescribed by law. In case of an appeal such as the instant case, the notice of appeal must be filed within the prescribed period. Where a respondent in an appeal is aggrieved by an aspect or a finding of the Court below notwithstanding that he is the successful party, such a respondent is entitled to file a cross-appeal. It is settled that notwithstanding that a cross-appeal is heard together with an appeal, a cross-appeal is a separate and distinct appeal and must be initiated by due process of law. That is to say that a notice of cross-appeal must be filed within the prescribed time and complied with all the requirements for its validity.PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

COURTS: THE COURT HAS THE POWER TO GRANT OR NOT GRANT THE PRAYER TO DEEM A PROCESS PROPERLY FILED
The power to grant or refuse to grant the prayer to deem the process so filed and served on the respondent as properly filed and served rests with the Court. See N.U.C V. ALLI & ANOR (2012) LPELR-7971 (CA) AT 15 (B-D). LEO MELOS PHARMACEUTICAL IND. LTD. & ANOR V. UNION HOME SAVINGS & LOANS LTD (2010) LPELR-4431 (CA) AT 15-16 (D-G). IDRIS V AUDU (2004) LPELR-7322 (CA) AT 22 (D-G) INCAR (NIG) PLC V. BOLEX ENT. NIG. LTD. (1997) LPELR-1513 AT 9-10 (D-C).PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

PARTY: THE EFFECT OF A PARTY FAILING TO COMPLAIN ABOUT AN IRREGULARITY
Once a party fails to complain about an irregularity at the trial Court when he had the opportunity to do so, he is deemed to have waived that irregularity. See BENBOK LTD V. FIRST ATLANTIC BANK PLC (2007) LPELR-9003 (CA) AT 9 (F-G).PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

COURTS: COURTS SHOULD BE MIRE INTERESTED IN JUSTICE THAN IN TECHNICALITIES

Justice is better served by determination of a dispute on merit rather than on a technicality deliberately brought at a stage when the other party has no opportunity to rectify same. This is more so in a criminal case when the liberty of an individual is at stake. NWANKWO V. WEMA BANK PLC & ORS. (2012) LPELR-9798 (CA) AT 16 (B-C). SAUDE V. ABDULLAHI (1989) LPELR-3017 (SC) AT 64 (C-E), where the Supreme Court held as follows:
The Courts have consistently held in several decided cases that an objection to a procedural irregularity in an action, to be countenanced, must be taken at the commencement of the proceedings or at the time when the irregularity arises. After the party raising and relying on the irregularity to set aside the action had taken steps in the proceedings aware of the irregularity, it will be too late and against the interest of justice to raise and rely on the objection.
See also STATE V. ONYEUKWU (2004) LPELR-3116 (SC) 35 (A).PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

WITNESS: TAINTED WITNESS: WHO IS A TAINTED WITNESS

In MBENU V. STATE (1988) NWLR (PT. 84) 615 (1988) LPELR 1855 (SC) AT 1920 (DA), the Supreme Court per Nnamani, J.S.C. held that

A tainted witness is a witness who, though not an accomplice, is a witness who may have a purpose of his or her own to serve. This Court has always held that the evidence of such a witness should be treated with considerate caution and should be treated with a tooth comb. Indeed, trial Courts have been advised to be wary in convicting on the evidence of such witnesses without some corroboration. See STATE V. DOMINIC OKOLO AND ORS. (1974) 2 S. C. 73, AT 82; JIMOH ISHOLA V. THE STATE (1978) 9-10 S. C. 81; 100; PRATER (1960) 44 C.A.R. 83 AT 186; FREDRICK VALENTINE RUSELL (1968) 44 C.A.R. 147, 150. The requirement that a trial Judge should in such circumstances, warn himself as one would in the case of accomplices, is one dictated by prudence not by law.
See also AKINDIPE V. THE STATE (2012) LPELR 9345 (SC) AT 23. OLALEKAN V. THE STATE (2001) LPELR 2561 (SC) AT 29 (BC). ALI V. THE STATE (2015) LPELR 24711 (SC) AT 60 (CE). PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

EFFECT OF CONTRADICTION IN EVIDENCE OF PROSECUTION WITNESSES

The law is settled that where there is a contradiction in the evidence of prosecution witnesses on material fact which goes to the root of the case as to raise a serious doubt in the mind of the Court, the Court should not convict, the benefit of the doubt must be given to the accused person. See IBRAHIM V. STATE (1991) LPELR 1404 (SC) AT 12 13 (EA), (1991) 4 NWLR (PT. 186) 399.PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

WORDS AND MEANING: “BIAS”

The second complaint of the appellant under this issue is that the learned High Court judge was biased against the appellant based on the comments made about PW4 being a lawyer. The word bias has been defined in a plethora of cases. InLAWRENCE V. A. G. OF THE FED. (2007) LPELR 8566 (CA) AT 21 (B-G), this Court explained that:
The word bias was defined in Blacks Law Dictionary (5th Edition) as an inclination, bent, a preconceived opinion or predisposition to decide a cause or an issue in a certain way which does not leave the mind perfectly open to conviction. The apex Court held in KENON VS TEKAM (2001) 14 NWLR (PT. 732) 12 AT 41-42 PARAS H-A, that bias, in its ordinary meaning is opinion or feeling in favour of one side in a dispute on argument resulting in the likelihood that the Court so influenced will be unable to hold on even scale. In deciding whether a tribunal is partial and therefore disqualified from presiding over an enquiry, the Court will not enquire whether the tribunal did, in fact, favour one side unfairly. The Court looks at the impression of right minded people. If reasonable people would think that, in the circumstances of the case, there was a real likelihood of bias, then the decision cannot stand, the basis of this is that justice must be rooted in confidence and confidence is destroyed when right minded people go away with the impression that the Judge was biased.PER MISITURA OMODERE BOLAJI-YUSUFF, J.C.A.

JUSTICES:

IGNATIUS IGWE AGUBE Justice of The Court of Appeal of Nigeria

MISITURA OMODERE BOLAJI-YUSUFF Justice of The Court of Appeal of Nigeria

ABUBAKAR SADIQ UMAR Justice of The Court of Appeal of Nigeria

Between

COMMISSIONER OF POLICE – Appellant(s)

AND

H.R.H IGWE OLIVER OKEFI – Respondent(s)

MISITURA OMODERE BOLAJI-YUSUFF, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of High Court of Enugu State delivered in its appellate jurisdiction in suit no. HOR/2CA/2016. The respondent was charged and tried before the Magistrate Court of Enugu State, Orji River Magisterial District for assaulting one Chief Timothy Ikechukwu Onwuka by hitting him with a bulls horn on his chest and thereby committed an offence punishable under Section 252 of the Criminal Code, Cap. 30 volume II, Laws of Enugu State, 2004.

The prosecution called five witnesses to prove the allegation against the respondent. The respondent testified in his own defence and called no other witness. At the end of trial and adoption of written addresses, the trial Magistrate Court delivered its judgment on 27/11/2015. The respondent was found guilty as charged. He was cautioned, pardoned and discharged.

The appellant was aggrieved by the sentence passed on the respondent. A notice of appeal against the sentence was filed on 14/12/2015 at the High Court of Enugu State. The four grounds of appeal in the notice of appeal without their particulars are:

(a) ERROR IN LAW
The learned Chief Magistrate erred in law by pardoning and discharging the respondent after reviewing the full facts and circumstances of the case and convicting the accused person.
(b) The presiding Chief Magistrate erred in law by the sentence she passed on the respondent as she did not advert her mind to factors which guide sentencing.
(c) The presiding Chief Magistrate erred in law by pardoning and discharging the respondent when there is abundant evidence that he had a plethora of cases in Court.
(d) The presiding Chief Magistrate erred in law by not exercising her discretion on sentencing reasonably.

The respondent filed a motion on notice dated 22/6/2016 wherein he sought for extension of time within which to cross appeal against the judgment and to deem the notice and grounds of cross-appeal dated 22/6/2016 attached to the motion as exhibit C as properly filed and served. The respondents counsel moved the motion on 22/9/2016. The appellants counsel stated that he had no objection to the motion. The Court granted the orders as prayed. Parties

filed and exchanged briefs of argument which they adopted as their arguments in support and against the appeal and cross-appeal.

The High Court delivered its judgment on 16/2/2017. The main appeal was dismissed. The conviction and sentence passed on the respondent by the Magistrate Court was set aside. The respondent was acquitted.

The appellant being aggrieved by the judgment filed a notice of appeal dated 15/3/2017. Pursuant to a motion on notice filed on 17/9/2018, Further Amended Notice of Appeal dated 17/9/2018 and filed on the same day was deemed as properly filed and served on 26/11/2018. The five grounds of appeal contained in the Further Amended Notice of Appeal without their particulars are:
GROUND 1
The learned High Court Judge erred in law and thereby occassioned grave miscarriage of justice when he held that PW1 and PW2 were tainted witnesses.
GROUND 2
The learned High Court Judge was in serious error and thereby occassioned grave miscarriage of justice which led to a perverse decision when he set aside judgment of His Worship Angela Chioke delivered on 27/11/15 and found

the accused/respondent not guilty, discharged and acquitted him.
GROUND 3
The learned Judge erred and thereby occassioned grave miscarriage of justice when he dismissed the Main Appeal before him without considering and pronouncing on the issues of jurisdiction raised in the main appeal and based his judgment on an incompetent Notice of Cross Appeal.
GROUND 4
The lower Court denied the appellant his constitutional right when it held thus at page 1933 lines 4 to 11 of the record of appeal the Prosecution indeed failed to prove the guilt of the cross-appellant beyond reasonable doubt as demonstrated above. The cross appeal succeeds. Since the cross-appeal succeeds the consideration of issues raised by the appellants counsel in its brief of argument in support of the appeal will amount to mere academic exercise which is not the function of the Court. The relief sought by the appellant has ceased to be of any relevance..
GROUND 5
The lower Court showed bias when he commented on the appellants notice of Appeal at pages 181-182, when he stated thus, my only comment on this

Notice of Appeal is that the appellant made so much weather on the plethora of cases the respondent is having in Courts. The appellant makes it appear as if it is a crime to have so many cases in Court. In an unenlightened climes and societies a person who has so many cases may be perceived as a truculent person but legally such facts incurs no impediment and does not translate to any criminality to the person.the Notice of Appeal of the appellant is prepared by a very senior police officer of the rank of Deputy Superintendent of Police (DSP) and is also a legal practitioner. A better understanding of the intricacies of sentencing should be expected from him. This is my comment for now on the appellants notice of appeal.
And also at page 186, 2nd paragraph Lines 14 to 17 of the record of appeal when he commented thus: Interestingly the PW4 is a qualified legal practitioner called to the Nigeria Bar and enrolled at the Supreme Court of Nigeria as a Solicitor and Advocate, though he is for the time being serving in the Nigerian Police Force.

Page 187 lines 1 to 4 .the PW5 is another Senior Police Officer who ostensibly came to Court for a purpose only known to him because he did not tell the Court anything of value to the case.
Page 187, 2nd paragraph 26 27 to page 188 lines 1-9 rom all these war so to say was between the family of the PW2 and their in-laws on one side and the accused person on the other side. If that is the case it means that the PW2 will jump at any given opportunity to unleash vengeance on the accused person. The PW2 was ready to aid any move that would whittle down power, integrity or influence of the accused to the barest minimum and could easily join up with the PW1 to make sure that the accused person is taught some bitter lessons in this case. That the accused person as a traditional ruler of his community is sent to jail by any means, hook or crook, would not have been a bad idea, such a witness as the PW2 is in law rightly referred to as a tainted witness.
Page 189 1st paragraph lines 6-10 in the

instant case, both the PW1 and PW2 are in the pursuit of the same purpose, to bring the accused down or to do him in. To that extent, they are engaged in the same mission.
Page 190, 2nd paragraph I have also looked at exhibit 5 which is the supposed confession of the accused to the Area Command of Enugu State Police Command, but it is not a confession but a total denial

Parties filed and exchanged briefs of argument in compliance with the rules of this Court. The amended appellants brief was filed on 17/9/18 and deemed as properly filed and served on 26/11/18. The respondents brief was filed 31/1/18 and deemed as properly filed and served on 1/2/18. The appellants counsel adopted the amended briefs as his argument in this appeal. The respondents counsel was absent. The respondents brief was therefore deemed adopted pursuant to Order 19 Rule 9 (4) of the Court of Appeal Rules, 2011.

The appellant formulated the following issues for determination:
1. Whether reliefs can be awarded where there is want of competency and jurisdiction. (Distilled from

original ground 3 and additional grounds 4 and 6.)
2. Whether there was miscarriage of justice in the decision of the lower Court (High Court) appealed against. (Distilled from original grounds 1 and 2 additional ground 5).
3. Whether the appellant was denied his fundamental right to fair hearing. (Distilled from original ground 4).

The issues formulated for determination by the respondent are similar to the issues formulated by the appellant though couched slightly different.

The appellants issues are hereby adopted for determination of this appeal. On issue 1, the appellants counsel submitted that the notice of cross-appeal upon which the Court below based the discharge and acquittal of the respondent is incompetent and the Court lacked the jurisdiction to entertain the cross-appeal because no leave of Court was sought and obtained before filing it. He further submitted that the respondent having filed the notice of cross-appeal out of time and having failed to file a separate and clean copy of the notice, the Court was wrong in deeming an annexure to the motion for extension of time as properly filed because an

exhibit annexed to a motion cannot stand for the real process. He referred to OSHIANIE V. ERHUMWUNSE (1993) 3 NWLR (PT. 283) 603 AT 607 (D). CREEK PPTY. DEV. CO LTD V. EBUN-OLU ADEGBORUWA (2011) 3 NWLR (PT. 1234) 239 AT 246 (F).

In response to the above submissions, the respondents counsel submitted that the cross-appeal was initiated in accordance with Order 53 Rule 34 of the High Court (Civil Procedure) Rules of Enugu State, 2006 which provides for the mode of entering an appeal in criminal cases. He further submitted that the appellant never raised objection to the mode or manner by which the cross-appeal was initiated during the proceedings at the Court below.

RESOLUTION:
The law is settled that for a Court to adjudicate on any matter brought before it, its jurisdiction must be activated by due process of law beginning from filing a valid and competent originating process and within the time prescribed by law. In case of an appeal such as the instant case, the notice of appeal must be filed within the prescribed period. Where a respondent in an appeal is aggrieved by an aspect or a finding of the Court below notwithstanding that he is

the successful party, such a respondent is entitled to file a cross-appeal. It is settled that notwithstanding that a cross-appeal is heard together with an appeal, a cross-appeal is a separate and distinct appeal and must be initiated by due process of law. That is to say that a notice of cross-appeal must be filed within the prescribed time and complied with all the requirements for its validity.
The fact that the respondent in the instant appeal failed to file his notice of cross-appeal within the period prescribed by law is not in controversy. The fact that a motion was filed at the Court below for extension of time to cross-appeal against the judgment of the Chief Magistrate Court and to deem the notice of cross-appeal attached to the motion as exhibits C as properly filed and served is also not in controversy. It is on record that the respondents counsel moved the motion and the appellants counsel clearly and categorically stated that he had no objection. The Court below exercised its discretion in favour of the respondent and granted the two prayers in the motion which means that an extension of time

was granted and the notice of cross-appeal annexed to the motion was deemed as properly filed and served. Thereafter parties filed and exchanged briefs of argument in respect of the cross-appeal. Cross-appellans brief is on pages 171-177 of the record of appeal. Appellant/Respondents reply brief of argument to cross-appellants brief is on pages 165-170 of the record.
I agree with the learned appellants counsel that the law is settled that where a process such as the notice of cross-appeal is filed outside the prescribed period without an order for extension time to so do, the notice of appeal or cross-appeal is invalid and the Court cannot exercise its jurisdiction to entertain the appeal. However, where as in this case, the Court is empowered to extend the time to file a process or comply with a requirement of any rule of Court, the Court can exercise its discretion to extend the time to file the process. Where the process has already been filed, the Court may after granting the extension of time deem the process already filed and served as having been properly filed and served. The power to grant or refuse to grant the prayer to deem the process so

filed and served on the respondent as properly filed and served rests with the Court. See N.U.C V. ALLI & ANOR (2012) LPELR-7971 (CA) AT 15 (B-D). LEO MELOS PHARMACEUTICAL IND. LTD. & ANOR V. UNION HOME SAVINGS & LOANS LTD (2010) LPELR-4431 (CA) AT 15-16 (D-G). IDRIS V AUDU (2004) LPELR-7322 (CA) AT 22 (D-G) INCAR (NIG) PLC V. BOLEX ENT. NIG. LTD. (1997) LPELR-1513 AT 9-10 (D-C).
A notice of cross-appeal was attached to the motion. The appellant had the opportunity to raise objection to the exhibit being deemed as properly filed but chose not to do so. There after parties proceeded to exchange necessary briefs on the basis of that notice. It will amount to pure technicality and injustice for the Court to turn round and declare the notice of cross-appeal incompetent. The parties were not in any way misled or prejudiced by the order of the Court. Once a party fails to complain about an irregularity at the trial Court when he had the opportunity to do so, he is deemed to have waived that irregularity. See BENBOK LTD V. FIRST ATLANTIC BANK PLC (2007) LPELR-9003 (CA) AT 9 (F-G). Justice is better served by determination of a dispute on

merit rather than on a technicality deliberately brought at a stage when the other party has no opportunity to rectify same. This is more so in a criminal case when the liberty of an individual is at stake. NWANKWO V. WEMA BANK PLC & ORS. (2012) LPELR-9798 (CA) AT 16 (B-C). SAUDE V. ABDULLAHI (1989) LPELR-3017 (SC) AT 64 (C-E), where the Supreme Court held as follows:
The Courts have consistently held in several decided cases that an objection to a procedural irregularity in an action, to be countenanced, must be taken at the commencement of the proceedings or at the time when the irregularity arises. After the party raising and relying on the irregularity to set aside the action had taken steps in the proceedings aware of the irregularity, it will be too late and against the interest of justice to raise and rely on the objection.
See also STATE V. ONYEUKWU (2004) LPELR-3116 (SC) 35 (A). In my view, deeming a notice of cross-appeal attached as an exhibit to a motion for extension of time to appeal as properly filed and served without filing a separate and clean copy of the notice is a simple irregularity to which

the appellant acquiesced and cannot in the interest of justice be allowed to insist or raise same on appeal. For these reasons, issue 1 is resolved against the appellant.

On issue 2, the appellants counsel submitted that the Court below failed to properly evaluate the evidence on record and the Court erred in law when it held that PW1 and PW2 are tainted witnesses whose evidence need corroboration merely because of the family relationship between PW1, PW2 and the respondent, counsel referred to the comments of the Court below on the evidence of the respondent that he has several cases in Court, the remark that PW4 is a qualified Legal Practitioner and that PW5 is a senior police officer. He submitted that those statements and comments show that the learned trial judge was biased and sentimental and did not consider the issues raised when it is settled law that sentiment has no place in law. He referred to A.G. LAGOS STATE V. EKO HOTEL (2007) 9 WRN 1. KALU V. F.R.N (2016) LPELR-40108 (SC). ABODUNRIN V. ARABE (1995)5 NWLR (PT. 393) 77. He further submitted that the Court brought extraneous issues into the appeal by way of personal information

and opinions of PW4 and PW5 which has now occassioned a miscarriage of justice. He submitted that where there is a miscarriage of justice the judgment is liable to be set aside. He referred to A.I.C & 2 ORS. V. SHORELINE BOATS LTD & ANOR (2010)3 SC (PT.1) 59 AT 168 (40-45). GAMBARI V. AMOPE (2017) 28 W.R.N 47.

In response, the respondents counsel submitted that the prosecution did not prove its case beyond reasonable doubt as required by law as there was no credible evidence consistent with the commission of the alleged offence by the respondent. He referred to BUJE V. STATE (1991)4 NWLR (PT.185) 287. OTEKI V. A.G BENDEL STATE (1986) 2 NWLR (PT.24) 648. He further submitted that out of the five witnesses that testified for the prosecution, PW1 and PW2 who were alleged to be eye witnesses of the alleged offence are members of Okefi family who were hostile to the respondent based on family feud prior to the present incident.

On the allegation of bias made against the learned trial judge, he referred to page 83 and exhibit 3 which according to him show that PW4 is a lawyer and that he also has his Masters Degree.

He also referred to page 70 of the record where it is shown that the appellants counsel at the Court below is also a lawyer and in charge of Legal Unit of police command in Enugu State. He submitted that the recognition of those officers as lawyers did not affect the decision of the Court below.

RESOLUTION:
The law is trite that in criminal cases, the onus is always on the prosecution to prove the charge against the accused person beyond reasonable doubt. The onus must be discharged by adducing legally admissible, cogent and credible evidence establishing the elements of the offence charged. It is also settled law that the onus of proof in criminal cases can be discharged by (1) confessional statement (2) circumstantial evidence or (3) evidence of eye witness. In the instant case, the prosecution relied on the evidence of eye witnesses given by PW1, PW2 and PW4. PW1 is the complainant and an in-law of the respondent. He is married to the half sister of the respondent and full blood sister of PW2. PW2 is a half brother of the respondent. The respondent is the leader of the family and the Igwe of the community. The Magistrate Court after

considering the evidence of PW1, PW2 and PW4 held at Page 65 of the record of appeal that:
When the DW1 testified, he failed to deny the essential elements of the offence of assault levied against him. It is in evidence that he went to the police station shortly after PW1 and PW2 arrived there. The prosecution also proved that while at the Police Station he requested for the arrest of the complainant and PW2 thus it was indeed his intent to get both PW1 and PW2 arrested. His own evidence proved that he went there with his bulls horn as his offor and he entered into a heated argument with the PW1 knowing that he is in total control of the DCO and indeed actually hit the complainant with the said bulls horn.
The evidence of the prosecution by PW1 and PW2 who were eye witnesses were credible and was never debunked under cross-examination. The accused had on entering the office of the DCO created the intention in the mind of the complainant, and by hitting him with the bulls horn, the act of such intention was complete;

and presented a personal discomfort to the complainant.
From the decided cases, attempting to do violence on another in such a way as to cause reasonable fear is assault. I find that from the facts testified, the uncontradicted evidence of the prosecution witnesses, especially and the surrounding circumstances deducted from all the witnesses that testified including DW1, that, the accused had hit the complainant with the bull horn in his hand in a heated argument, and had applied such force reasonable to cause fear and personal discomfort on the body of the complainant without his consent. In evidence DW1 failed to even give any credible account of the incident but only relied on anothers evidence, PW4. However the evidence of PW3 is clearly untainted and was not debunked under cross examination. On the basis of the foregoing, I find the accused guilty as charged.

On appeal to the High Court which is the Court below, the Court held at pages 187 188 that:
From the evidence before the Court, there appears to be a problem between the PW2 and his brothers of full blood on the side and the accused

person on the other side. That can be seen from evidence of the PW2 and PW1 on record. The PW1 stated that he is not of full blood with the accused and there has been an incessant problem between them and the accused person. As can also be seen from the evidence of the PW4 the accused came to his office with swollen face, eyes etc and the PW1 who claims to be his in-law seemed not to show any sympathy but was more interested in the release on bail of the person who inflicted these injuries on the accused. It is also in evidence that the PW1 is married to the sister of the PW2. From all these the war so to say was between the family of the PW2 and their in-laws on one side and the accused person on the other side. If that is the case it then means that the PW2 will jump at any given opportunity to unleash vengeance on the accused person. The PW2 was ready to aid any move that would whittle down the power, integrity or influence of the accused to the barest minimum and could easily join up with the PW1 to make sure that the accused person is taught some bitter lessons in this case. That the accused person

as a traditional ruler of his community is sent to jail by any means, hook or crook, would not have been a bad idea. Such a witness as the PW2 is in-law rightly referred to as a tainted witness.

The Court having found that PW1 and PW2 are tainted witnesses further held that their evidence needs corroboration and that the corroboration cannot be found in the evidence of PW4. The Courts position is stated at page 189-190 as follows:
The PW4 who is a witness of the prosecution denied seeing the offence committed. He stated emphatically that no assault was committed on the PW1 by the accused. He is an eye witness. The alleged offence was allegedly committed in his presence and in his office. He stated that though the parties were exchanging hot words but that the accused never stabbed the PW1 with his elephant horn or tusk. In OMISADE VS. QUEEN (1964) ALL NLR 227 per (Ademola CJN) it was held that for a piece of evidence to qualify as corroborative evidence, it must be an independent evidence that shows that an offence has been committed and that it was the accused person that

committed the offence. It must be an evidence of a person that does not need further corroboration. In MBENU VS THE STATE (1988) NWLR (PT. 84) 6:1.5 AT 628 it was held that A tainted witness is a witness who though not an accomplice, is a witness who may have a purpose of his own or her own to serve. This Court has always held that the evidence of such a witness should be treated with considerable caution and should be examined with tooth comb. Indeed the trial Court has been advised to be wary in convicting on the evidence of such witnesses without some corroboration. This decision was adopted in MOSES VS. STATE (2006) ALL FWLR (PT. 332) 1437. See also YOHANNA V. FEDERAL REPUBLIC OF NIGERIA (2002)FWLR (PT. 90) 1433.

I have myself perused the entire evidence on record. It is clearly established that there is a serious family feud going on between the respondent and the rest of his family including PW1 and PW2. On the day of the alleged assault, there was a physical fight between the respondent and some of his brothers which led to the arrest of one or two of them and the respondent himself sustained an injury.

There is therefore no doubt that tensions were high between the two sides. That is why the Court below held that PW1 and PW2 had their own purpose to serve which is to also get the respondent behind bars. However, it is clear from the decided cases of this Court and the Supreme Court that the fact that a witness has a purpose to serve by giving evidence for or against an accused must be clear from the facts and circumstances of the case, it must not be based on speculation. The fact that the witness and an accused person are enemies without more is not enough to treat a witness as a tainted witness. See AKINDIPE V. THE STATE (2012) LPELR 9345 (SC). In the instant case, can it be said that PW1 and PW2 had no purpose to serve. I do not think so because PW1s brothers who are PW2S in law were already under arrest and the respondent was still calling for the arrest of PW1 even before the DCO. Therefore their evidence must be treated with caution. In MBENU V. STATE (1988) NWLR (PT. 84) 615 (1988) LPELR 1855 (SC) AT 1920 (DA), the Supreme Court per Nnamani, J.S.C. held that

that the respondent is also arrested and detained. The Court below was right in treating PW1 and PW2 as tainted witnesses whose evidence needs corroboration.

Apart from treating PW1 and PW2 as tainted witnesses, the Court below made it clear that even if PW1 and PW2 are not treated as tainted witnesses, the Court below still erred in relying on their evidence to convict the respondent. The Court held that:
Even if the evidence of the PW1 and PW2 are not treated as tainted evidence, the damaging effect of the evidence of the PW4 on the case of the prosecution should not have been ignored by the trial Chief Magistrate. The evidence of the PW4 in Court and his earlier statement to the police at Area Command denying the commission of the offence by the accused has created some stupendous and far reaching material contradictions in the evidence of the prosecution. They cast doubts as to the culpability of the accused person. The trite law is that where there are contradictions so material to the charge in the evidence of the prosecution, the benefit of the doubt which will surely result from such material contradictions in the evidence of the

prosecution and the contradiction must be given to the accused person in which case he should be discharged. See PATRICK IKEMSON & ORS. V. THE STATE (1989) 3 NWLR (PT. 110) 455 AT 466; 474 AND 479; JONATHAN IGBI VS. THE STATE (2000) 75 LRCN 303 AT 317; NASAMU VS. THE STATE (1979) SC 153 AT 158 159; GREGORY OKONKWO VS. THE STATE (1988) 8 NWLR (PT. 561) 210 AT 244 245. In the instant case, there exist a very serious and damaging material contradiction in the evidence of the prosecution and the doubt created by such contradiction ought to have been resolved by the learned trial Chief Magistrate in favour of the accused. However, the learned trial Chief Magistrate failed to do so but went ahead to convict the accused based on the uncorroborated evidence of the PW1 and PW2 the glaring doubt as to his culpability occassioned by the obvious contradictions in the evidence of the prosecution witnesses.
(sic)

The law is settled that where there is a contradiction in the evidence of prosecution witnesses on material fact which goes to the root of the case as to raise a serious doubt in

the mind of the Court, the Court should not convict, the benefit of the doubt must be given to the accused person. See IBRAHIM V. STATE (1991) LPELR 1404 (SC) AT 12 13 (EA), (1991) 4 NWLR (PT. 186) 399. In the instant case PW1, PW2 and PW4 testified as eye witnesses to the alleged assault of PW1 in his office. PW1 and PW2 said the respondent hit PW2 with a bulls horn on the chest. PW4 was categorical in his evidence that there was no physical assault from either side. Only exchange of words. He went on to state that he was surprised later when he was called upon to make a statement that somebody was assaulted. The crux of the prosecutions case is the alleged assault which allegedly took place in the presence of PW4 in his office. The evidence of PW1, PW2 and PW4 are seriously contradictory. The law is sacrosanct that when there is a contradiction or material inconsistence in the evidence of prosecution witnesses, the Court cannot choose or pick which one to believe or disbelieve. The Court must reject the evidence of both witnesses.

In the instant case, the eye witnesses account of the prosecution witnesses sharply contradicted each other, the learned Magistrate erred in law when she held that the evidence of PW1 and PW2 are credible and relied on same to convict the respondent. See OTUMBERE V. STATE (2013) LPELR- 22875 (CA) AT 18 (A-D). EKEZIE V. THE STATE (2016) LPELR 40961 (CA) AT 9 (C-3E). AMAECHI V. THE STATE (2016) LPELR 40977 (CA) AT 91 92 (DC). There was a doubt in the prosecutions case and the Court below rightly resolved that doubt in favour of the respondent.

leave the mind perfectly open to conviction. The apex Court held in KENON VS TEKAM (2001) 14 NWLR (PT. 732) 12 AT 41-42 PARAS H-A, that bias, in its ordinary meaning is opinion or feeling in favour of one side in a dispute on argument resulting in the likelihood that the Court so influenced will be unable to hold on even scale. In deciding whether a tribunal is partial and therefore disqualified from presiding over an enquiry, the Court will not enquire whether the tribunal did, in fact, favour one side unfairly. The Court looks at the impression of right minded people. If reasonable people would think that, in the circumstances of the case, there was a real likelihood of bias, then the decision cannot stand, the basis of this is that justice must be rooted in confidence and confidence is destroyed when right minded people go away with the impression that the Judge was biased.
See also MBAJI V. AMOBI (2011) LPELR 3989 (CA) AT 17 (C-F), KENON & ORS. V. TEKAM & ORS. (2001) LPELR 1688 (SC) AT 29 (C-D), SUNKANMI V. STATE (2014) LPELR-22694 (SC) AT 24 (B-D). C.C.A. EDO STATE V.

AGUELE (2006)12 NWLR (PT.995) 545, (2006) LPELR-7627 (CA) AT 27-28 (C-B).
It has been stated times without number that an allegation of bias or likelihood of bias is a very serious allegation and should not be made lightly. It must be supported by clear, positive and unequivocal evidence from which likelihood of bias could reasonably be inferred and not on mere conjecture or suspicion. See ITSUELI & ANOR V. SEC & ANOR (2011) LPELR-4343 (CA) AT 46 (D-F), I have perused the record of appeal. The fact that PW4 is a lawyer and has his Masters degree is clearly stated in PWs report on page 83 of the record of appeal and in exhibit 3. The fact that the appellants counsel, DAMIAN NJOKU-UME is a DSP and OC LEGAL is also clearly stated on page 70 of the record. These are facts borne out by the record and which have no bearing on the decision of the Court. The other statements referred to by the appellans counsel as evidence of bias are the legal opinions, findings and conclusion of the Court based on the evidence on record. The law is sacrosanct that where the trial Court has failed to

perform its primary function of evaluating and ascribing proper probative value to the evidence led, the appellate Court has a duty to intervene especially when such evaluation does not involve credibility of witnesses based on their demeanour. What the Court below did in the instant case is to perform its duty as the appellate Court. The observation or the remarks on PW4 and the appellants counsel were obviously made in passing and did not form part of the reasons for setting aside the conviction of the respondent. The allegation of bias against the Court below is frivolous and unfounded. For these reasons, issue 2 is resolved against the appellant.

On issue 3, the appellants counsel submitted that under Section 212(1) of the Constitution, the power to pardon a convicted person under the prerogative of mercy lies with the Executive Governor of the State. He referred to FALAE V. OBASANJO 11 (1999) 4 NWLR (PT. 599) 476 AT 495. OKEKE V. THE STATE (2003) 15 NWLR (PT. 342) 25. C. O. P. V. BUHARI (2000) FWLR (PT. 1) 164. He further submitted that neither the Criminal Procedure Law of Enugu State nor the Criminal Code makes

provision for the trial Magistrate Court to grant pardon to a convict and to discharge him as the trial Magistrate did. He referred to Section 252 of the Criminal Code Law which stipulates the punishment for the offence charged, Sections 386, 395, 417 and 429 of the Criminal Procedure Law. He submitted that the trial Magistrate did not exercise his discretion in accordance with the law. Counsel argued that the Court failed to consider the arguments proffered but erroneously concluded that the issue had become an academic exercise thereby occasioning a breach of the appellants fundamental right to fair hearing. He referred to TUNBI V. OPAWOLE (2000) 4 W. R. N. 44. NIGERIAN NAVY & ORS. V. UMURAM (2017) 24 W. R. N. 149. He finally submitted that any proceedings conducted not in consonance with fair hearing amounts to a nullity and is liable to be set aside. He referred to EGBUCHU V. CONTINENTAL MERCHANT BANK PLC & ORS. (2016) LPELR 40053 (SC).

In response, the respondents counsel submitted that the charge of assault was not proved beyond reasonable doubt

and verdict of caution and pardon by the Magistrate Court was ultra vires its powers and cannot be sustained by the evidence on record He finally submitted that there was no denial of fair hearing.

RESOLUTION:
The main appeal and cross-appeal are separate and distinct appeals. However, there are instances where the two appeals are intertwined with each other such that a decision in one deposes off the other. See OWENA MASS TRANSPORT COY. LTD. V. IMAFIDON (2011) LPELR 4810 (CA) AT 24 25 (C-A), where this Court held that:
The cross-appeal is in law a separate and independent appeal from the main appeal. See UNITY BANK PLC & ANOR V. MR. EDWARD BOUARI (2008) 7 NWLR (PT. 1086) 372 AT 413, PARA. FG, where the Supreme Court, per TOBI, JSC, stated the position of the law thus: Learned counsel for the appellants argued that the Court of Appeal was wrong in dismissing the cross-appeal summarily without making finding on the issues of law that were raised in the brief of argument. While I concede that a cross appeal is an independent appeal, having a life of its own in

the appellate process, it could have some affinity with the main appeal as they criss-cross. There are instances where a decision of the main appeal affects and in fact disposes of the crux or fulcrum of the cross appeal. In such situations, it will be merely repetitive and will not serve any useful purpose for an appellate Court to go over the arguments raised by the cross appellant in his brief. In such situations, and in order to avoid repetition and superfluity, an appellate Court has the option to dismiss a cross-appeal summarily..
See also UNILORIN TEACHING HOSPITAL V. ABEGUNDE (2013) LPELR 21375 (CA) AT 50 51 (FG). In the instant case, the main issue in both the main appeal and cross-appeal is whether the appellant was rightly convicted. It is only when that issue has been resolved that the issue of appropriate sentencing becomes relevant. In view of the fact that the Court below found that the prosecution did not prove its case beyond reasonable doubt and acquitted the respondent, the issue of sentencing was no longer a live issue. The success of the cross-appeal

rendered the consideration of the main appeal academic exercise.

In ADELAJA & ORS. V. ALADE & ANOR. (1999) LPELR 109 (SC) AT 28 (C D), the Supreme Court enjoined the Court to adjudicate on the competing legal interests between parties and never to engage in mere academic discourse no matter how beneficial it may be to the public. The duty of the Court is to determine live issues. In A. C. & ANOR. V. INEC (2007) 18 NWLR (PT. 1065) 50, (2007) LPELR 8988 (CA) AT 33 34 (C- G), this Court per ABOKI, J.C.A explained what amount to an academic exercise as follows:
The Apex Court and indeed this Court have in a plethora of decisions given insight into what constitutes an academic exercise. In the case of OGBONNA V. PRESIDENT, F.R.N.(1997) 5 NWLR (PT. 504) PAGE 281, this Court per UWAIFO, JCA (as he then was) made the point that: If no purpose will be served by an action or appeal or any issue raised in it other than its mere academic interest, the Court will not entertain it the law is that it is an essential quality of a suit or an appeal fit to be disposed of by a Court that

there should exist between the parties a matter in actual controversy which the Court undertakes to decide as a living issue. Moreover, a Court deals only with live issues and steers clear of those that are academic. But there cannot be said to be a live issue in a litigation if what is presented to the Court for a decision, when decided, cannot affect the parties in anyway.

In the instant case, a decision as to whether the learned magistrate had the power to pardon and discharge the respondent would have no effect on the outcome of the appeal and would confer no benefit on any of the parties. I think the Court below was correct when it held that the issue had become an academic exercise. Refusal of the Court to embark on a fruitless exercise is not a denial of fair hearing. Issue 3 is resolved against the appellant.

In conclusion, I find this appeal to be unmeritorious. It is hereby dismissed. The judgment of the High Court of Enugu State delivered in its appellate jurisdiction on Suit no. HOR/2CA/2016, C. O. P. V. HRH IGWE OLIVER OKEFI ON 16/2/2017 wherein the conviction and sentence of pardon,

caution and discharge passed on the respondent herein by the Chief Magistrate Court was set aside and a verdict of discharge and acquittal entered in favour of the respondent is hereby affirmed.

IGNATIUS IGWE AGUBE, J.C.A.: I have had a preview of the lead judgment just delivered by my learned brother, MISITURA OMODERE BOLAJI-YUSUFF, JCA. I agree with the reasons ably articulated therein to arrive at the inescapable conclusion that the appeal lacks merit and should be dismissed. For the said comprehensive reasons, admirably and brilliantly marshaled in the said lead judgment, I also accordingly dismiss the Appeal. I also abide by the order regarding costs made in the said lead judgment.

ABUBAKAR SADIQ UMAR, J.C.A.: I had the opportunity of reading in advance, the well-considered judgment of my learned brother, MISTURA OMODERE BOLAJI-YUSUFF, JCA just delivered. I agree with the reasoning and conclusion contained therein.

For the detailed reasons adumbrated in the lead judgment, I too, therefore, find no merit in this appeal and I accordingly dismiss it. The judgment of the Court sitting

in its appellate jurisdiction below is hereby affirmed.

Appearances:

C. C. Echetebu, Esq. For Appellant(s)

No appearance For Respondent(s)

Appearances

C. C. Echetebu, Esq. For Appellant

AND

No appearance For Respondent

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