FAGORIOLA v. FRN (2022)

FAGORIOLA v. FRN

(2022)LCN/16549(CA)

In The Court Of Appeal

(AKURE JUDICIAL DIVISION)

On Wednesday, May 25, 2022

CA/AK/135C/2017

Before Our Lordships:

AyobodeOlujimiLokulo-Sodipe Justice of the Court of Appeal

Habeeb Adewale OlumuyiwaAbiru Justice of the Court of Appeal

Yusuf Alhaji Bashir Justice of the Court of Appeal

Between

DELE FAGORIOLA APPELANT(S)

And

FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)

RATIO:

A TRIAL COURT IS VESTED WITH THE DISCRETION TO DETERMINE THE APPROPRIATE PUNISHMENT DUE TO AN ACCUSED BASED ON THE FACTS AND CIRCUMSTANCES OF EACH CASE

Additionally, it is settled law that sentencing of an accused person, where the statute permits, is discretionary and a trial Court is vested with the discretion to determine the appropriate punishment due to an accused based on the facts and circumstances of each case – Omokuwajo Vs State (2013) LPELR-20184(SC), Eromosele Vs Federal Republic of Nigeria (2018) LPELR-43851(SC), Nzegbune Vs State (2020) LPELR-49670(CA). HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

A COURT IS NOT BOUND BY ITS PREVIOUS DECISION TO EXERCISE ITS DISCRETION IN A PARTICULAR WAY BECAUSE THAT WILL IN EFFECT BE PUTTING AN END TO THE DISCRETION

A COUNSEL WHO DECIDES TO LAUNCH SUCH ATTACK ON A JUDGE MUST E PREPARED TO SHOW CONCRERE EVIDENCE IN SUPPORT OF HIS ALLEGATION

In Womiloju Vs Anibiresupra, Muhammad, JSC stated:
“A Counsel who decides to launch an attack on a Judge for bias must support his allegation by concrete evidence. I think I need to draw attention of litigants generally and legal practitioners in particular that the allegation of bias is a very serious attack on the person and integrity of a Judge. A Counsel who decides to launch such attack on a Judge must be prepared to show concrete evidence in support of his allegation.” HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

IT IS SETTLED IN OUR JURISPRUDENCE THAT THE BURDEN OF PROVING THAT ANY PERSON HAS COMMITTED A CRIME OR WRONGFUL ACT RESTS ON THE PERSON WHO ASSERTS IT

PROOF BEYOND A REASONABLE DOUBT IS NOT PROOF TO THE HILT

It must, however, be stated that proof beyond reasonable doubt is “not proof to the hilt” and is thus not synonymous with proof beyond all iota of doubt or proof of a mathematical certainty. This is due to the aphorism that absolute certainty is impossible in any human venture, inclusive of ministration of justice. Thus, if the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence “of course it is possible, but not in the least probable”, the case will be said to have been proved beyond reasonable doubt – Ezeani Vs Federal Republic of Nigeria (2019) 12 NWLR (Pt 1686) 221, Phillip Vs State (2019) 13 NWLR (Pt 1690) 209, Sanmi Vs State (2019) 13 NWLR (Pt 1690) 551, Itodo Vs State (2020) 1 NWLR (Pt 1704) 1, Ibrahim Vs Commissioner of Police (2020) 15 NWLR(Pt 1746) 122, Fekolomoh Vs State (2021) 6 NWLR (Pt 1773) 461. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

THE WAYS IN WHICH THE GUILT OF AN ACCUSED PERSON FOR AN OFFENCE CHARGED CAN BE ESTABLISHED

It is settled law that in criminal trials, the guilt of an accused person for the offence charged can be established in any or all the following ways (a) the confessional statement of the accused person wherein he or she admits the commission of the offence and which has been duly tested, proved and is unequivocal and admitted in evidence; (b) circumstantial evidence which is complete, cogent and unequivocal and which leads to the irresistible conclusion that the accused committed the offence; and (c) evidence of an eye witness who saw the accused person committing the offence charged. Any one of the methods is sufficient – Phillip Vs State (2019) 13 NWLR (Pt 1690) 209, Hamza Vs State (2019) 16 NWLR (Pt 1699) 418, Alao Vs State (2019) 17 NWLR (Pt 1702) 501 and Itodo Vs State (2020) 1 NWLR (Pt 1704) 1. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

AN APPELLATE COURT WILL NOT INTERFERE WITH THE EVALUATION OF EVIDENCE CARRIED OUT BY A TRIAL COURT

The law is that where the records of proceedings show that a trial Court assessed the evidence produced before it and accorded probative value to them and placed them side by side on an imaginary weighing scale before coming to a conclusion and making a finding of fact on side of the evidence that tilts the scale, such a finding must be accorded due weight so long as it is not unreasonable and not perverse. An appellate Court will not interfere with the evaluation of evidence carried out by a trial Court and will not substitute its own views for that of the trial Court unless the conclusion reached from the facts is perverse – Enukora Vs Federal Republic of Nigeria(2018) 6 NWLR (Pt 1615) 355, Edwin Vs State (2019) 7 NWLR (Pt 1672) 551, State Vs Gbahabo (2019) 14 NWLR (Pt 1693) 522, Tope Vs State (2019) 15 NWLR (Pt 1695) 289, Mohammed Vs State (2020) LPELR-52451(SC). HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

AN ADMISSION MADE AT ANYTIME BY A PERSON CHARGED WITH A CRIME SUGGESTING THAT HE COMMITTED THE OFFENCE IS A RELEVANT FACT TO BE TAKEN INTO CONSIDERATION BY THE COURT

It is settled law that an admission made at anytime by a person charged with a crime suggesting that he committed the offence is a relevant fact to be taken into consideration by the Court – Ikemson Vs The State (1989) 3 NWLR (Pt 110) 455, Adeyemi Vs State (1991)LPELR-172(SC), Gbadamosi Vs State (1992) 11-12 SCNJ 268, Akinmoju Vs The State (2000) 21 WRN 88 at 94, Nwachukwu Vs State (2002) LPELR-2084(SC), State Vs Ahmadu (2015) LPELR-25598(CA). In Onungwa Vs State (1976) LPELR-2703(SC), Idigbe, JSC, made the point thus:
“We are satisfied that an admission made at any time by a person charged with a crime suggesting the inference that he committed the offence is a relevant fact against the maker and if made voluntarily, is admissible in evidence. Equally any information given by a person accused of an offence leading to discovery of any fact material to the charge against him, if made voluntarily is relevant and admissible and such information is no less voluntary merely because it was given in answer to a question asked in the course of investigations in respect of the charge provided that no threat or inducement or promise by anyone in authority was offered to the accused person.” HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

ORAL EVIDENCE SHOULD BE TREATED AS UNRELIABLE AND LIABLE TO BE REJECTED WHERE AN EXTRA-JUDICIAL STATEMENT IS NOT CHALLENGED BUT MERELY GIVES ORAL EVIDENCE WHICH IS INCONSISTENT WITH THE CONTENTS OF THE STATEMENT

It is also settled law that where an accused defendant does not challenge the making of his extra-judicial statement but merely gives oral evidence which is inconsistent with or contradicts the contents of the statement, the oral evidence should be treated as unreliable and liable to be rejected and the contents of the extra-judicial statement upheld unless a satisfactory explanation of the inconsistency is proffered – Gabriel Vs State (1989) 5 NWLR (Pt. 122) 457, Ogoala Vs State (1991) 2 NWLR (Pt 175) 509,EgboghonomeVs State (1993) 7 NWLR (Pt 306) 383, Oladotun Vs State (2010) 15 NWLR (Pt 1217) 490,Federal Republic of Nigeria Vs Iweka (2013) 3 NWLR (Pt 1341) 285, Osuagwu Vs State (2013) 5 NWLR (Pt 1347) 360. The lower Court was thus very correct when it ignored the evidence led by the Appellant in his evidence of the mode of payments in the Local Government Council being only by cheques and not by payment vouchers. It was clearly an afterthought. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

THE EVIDENCE OF AN INVESTIGATING POLICER OF WHAT HE SAW OR WITNESSED IN THE COURSE OF HIS WORK AS AN INVESTIGATOR IS NOT HEARSAY EVIDENCE AND SHOULD BE CONSIDERED IN COMING TO A JUST DECISION

It is settled law that the evidence of an Investigating Police Officer of what he actually saw or witnessed, or discovered, or was told in the course of his work as an investigator is not hearsay evidence and that a trial Court is entitled to consider it one way or another in coming to a just decision – Oladejo Vs The State (1994) 6 NWLR (Pt 348) 101, Kachi Vs State (2015) 9 NWLR (Pt 1464) 213 at 234-235, Anyasodor Vs State (2018) 8 NWLR (Pt 1620) 125, Olaoye Vs State (2018) 8 NWLR (Pt 1621) 281 at 301. In Kamila Vs State (2018) LPELR-4360(SC), the Supreme Court, per Amiru Sanusi, JSC, made the point as follows:
“Again on the quality of the testimony of PW3, who is the investigation police officer which the appellant’s learned counsel called for its discountenance because according to him it is hearsay evidence. Here, I do not share the appellant’s counsel’s view that the evidence of an IPO amounts to hearsay evidence because as an IPO he narrates to the Court the outcome of his investigation or enquiries or what he recovered or discovered in the course of his duty. He must have discovered or recovered some pieces of evidence vital to the commission of the crime which trial Courts normally consider in arriving at a just decision one way or the other. The lower Court was therefore right in refusing to discountenance such evidence adduced or given by PW3.” HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

A CONFESSION IS AN ADMISSION MADE AT ANY TIME BY A PERSON CHARGED WITH A CRIME AND THIS INCLUDES AN EXTRA-JUDICIAL STATEMENT THAT SUGGESTS THE INFERENCE THAT THE MAKER COMMITTED THE OFFENCE CHARGED

In other words, a confession is not only an extra-judicial statement that categorically, precisely and unequivocally acknowledges that the maker thereof committed the offence for which he was charged, as submitted by Counsel to the Appellant, but also includes an extra-judicial statement that suggests the inference that the maker committed the offence charged. Dovetailing from the above, the Supreme in Adebayo Vs State (2014) LPELR-22998(SC), per Ariwoola, JSC, stated that:
“A confession is an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed the crime and this includes both extra-judicial and judicial confessions. It also includes an incriminating admission made that is not direct and positive and short of a full confession. See Section 27(1) of the Evidence Act. Confession has also been held to be a criminal suspect’s oral or written acknowledgement of guilt, which often includes details about the crime alleged. In other words, a confession is an acknowledgement in express words by the accused in a criminal case, of the truth of the main fact charged or of some essential part of it. See Akpan vs. State (2001) 11 SCM 66; (2001) 15 NWLR (Pt. 737) 745; (2001) 7 SC (Pt. 1) 124; Nwachukwu vs. The State (2002) 12 SCM 143; (2002) 7 SC (Pt. 1) 124; (2002) 11 NSCQR 663, Dare Jimoh Vs. The State (2014) LPELR – 22464 (SC), Onuoha vs. The State (1987) 4 NWLR (Pt. 65) 331. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Ondo State, sitting in Akure Judicial Division, delivered in Suit No AK/32C/2006 by Honorable Justice T. O. Osoba on the 9th of May, 2016.

The Appellant was the Chairman of Akure North Local Government Area at the times material to this case and he was arraigned before the lower Court on a nine count charge of using his office to confer corrupt advantage contrary to and punishable under Section 19 of the Corrupt Practices and Other Related Offences Act, 2000. The Appellant pleaded Not Guilty to the charge and the matter proceeded to trial and in the course of which the Respondent called eight witnesses and tendered several documents in proof of its case, while the Appellant testified as the sole witness and also tendered documents in his defence.

At the conclusion of trial and after the filing and adoption of final written addresses by Counsel to the parties, the lower Court entered judgment wherein it found the Appellant guilty and convicted him on Counts One to Five and it dismissed and discharged and acquitted him on Counts Six to Nine. The lower Court sentenced the Appellant to five years imprisonment on each of the five counts and directed that the sentences were to run concurrently. The Appellant was dissatisfied with the judgment and he caused an undated notice of appeal containing five grounds of appeal to be filed against it on the 13th of July, 2016. The notice of appeal was subsequently amended with the leave of this Court and an amended notice of appeal dated 15th of October, 2018 also containing three grounds of appeal and was filed on the same date and it was deemed properly filed and served by this Court on the 26th of January, 2021.
In arguing the appeal, Counsel to the Appellant filed a brief of arguments dated the 10th of Nov, 2017 on the 21st of November, 2017 and same was deemed properly filed and served on the 26th of January, 2021. In response, Counsel to the Respondent filed a brief of arguments on the 17th of April, 2018 and the brief of arguments was also deemed properly filed and served on the 26th of January, 2021. Counsel to the Appellant filed a Reply brief of arguments dated the 12th of September, 2019 on the16th of September, 2019 and it was similarly deemed properly filed and served on the 26th of January, 2021. Counsel to the Appellant filed two lists of additional authorities on the 3rd of March, 2021 and 28th of June, 2021. At the hearing of the appeal, Counsel to the parties relied on and adopted the arguments in their respective briefs of arguments as well as the additional authorities as their arguments in the appeal.

Counsel to the Appellant distilled two issues for determination in the appeal and these were:
i. Whether having regard to the learned trial Judge’s hostility and manifest bias towards the Appellant throughout the trial, the trial of the Appellant ought not to be set aside on the ground of lack of fair hearing.
ii. Whether from the totality of the evidence adduced by the Respondent before the trial Court, the Respondent established the guilt of the Appellant beyond reasonable doubt as required by law, so as to justify the conviction and sentencing of the Appellant by the learned trial Judge.

In arguing the first issue for determination, Counsel to the Appellant stated that, in the course of trial and after the close of the case of the Respondent, the Appellant made a no case submission and which the lower Court refused and the Appellant pursued the refusal up to the Supreme Court before returning to prosecute his defence before the lower Court. Counsel stated that this act of the Appellant did not sit well with the lower Court and led to the demonstration of serious bias and hostility against the Appellant in the course of his defence, which led to the withdrawal of the erstwhile Counsel to the Appellant and that as such the Appellant did not get a fair trial before the lower Court.

Counsel stated any person charged with a criminal offence is guaranteed a fair hearing by Section 36(4) of the 1999 Constitution and this transcends affording the accused person an opportunity to be heard and encapsulates fair hearing in every ramification. Counsel stated that the concept of fair hearing is breached where, in the course of hearing, a trial Court’s disposition toward an accused person or his Counsel is belligerent and discriminatory and leaves an average person with the impression that the trial Court is unfair to the accused person and he referred to the case of Kim Vs State (1992) 4 NWLR (Pt 233) 17. Counsel stated that the attitude of the lower Court to the Appellant throughout his trial was not only belligerent but was also partial and was in clear breach of the Appellant’s right to fair hearing and he referred to the case of Isamade Vs Okei (1998) 2 NWLR (Pt 538) 455.

Counsel proceeded to highlight the alleged instances of bias and hostility of the lower Court to the Appellant and he referred to when the lower Court overruled the objection of Counsel to the Appellant to the tendering of an original letter on the letterhead of the Civil Service Commission addressed to the Chairman of ICPC by the Respondent through the eighth prosecution witness on ground that it was a public document that needed certification, only for it to reject an original of a Certificate of Attendance of a Conference issued to the Appellant and sought to be tendered in the course of the defence of the Appellant on the ground that it was a public document requiring certification. Counsel also referred to a Ruling delivered by the lower Court refusing an application by the Appellant requesting it to disqualify itself on the ground of likelihood of bias and where the lower Court described the application as “time wasting, blackmailing and intimidating” and stated that the description of the erstwhile Counsel as a blackmailer and intimidator led to the Counsel withdrawing from the case.

Counsel again noted that in the judgment under appeal, the lower Court imposed the maximum punishment of five years on the Appellant, without an option of fine on the ground that Section 19 of the ICPC Act under which the charge was brought did not provide for an option of fine, while in another case involving the Vice Chairman of Akure North Local Government in Charge No AK/33C/2006, arising from the same audit report and also brought pursuant to Section 19 of the ICPC Act, the lower Court gave the accused person an option of fine. Counsel further referred to an incident when the lower Court refused the request of the Counsel to the Appellant for an adjournment of the hearing to enable him consult with the Appellant who had just been released from prison to obtain relevant documents on the ground that it will occasion a delay of the case, only for the lower Court a few months later to over rule the objection of Counsel to the Appellant that the grant of the request of the Respondent for a substitution of one its witnesses for another witness would spring a surprise, saying the evidence of the former witness on record was the same as that of the new witness.

Counsel stated that the highlighted incidences were unfair treatments and which impinged on the right of the Appellant to fair hearing as guaranteed under the 1999 Constitution and he thereafter referred to the case of Menkiti Vs Menkiti (2000) 8 NWLR (Pt 667) 154 on what should be the attitude of a trial Court to a request for adjournment and the case of FRN Vs Akubueze (2010) 17 NWLR (Pt. 1223) 525 on the connotation of the concept of fair hearing. Counsel stated that where it is established that the right of fair hearing of a party has been breached by his denial of a fair trial, an appellate Court will set aside the judgment, and that it is irrelevant whether or not the conclusion of the case would have still been the same if the party was afforded a fair trial and he referred to the case of Nyesom Vs Peterside (2016) 7 NWLR (Pt 1512) 452. Counsel urged the Court to resolve the issue for determination in favour of the Appellant and to nullify the entire proceedings that took place in the lower Court and remit the case for a retrial before another Judge.

In arguing the second issue for determination, Counsel noted that the burden of prove of the guilt of the Appellant was on the Respondent and that the burden was proof beyond reasonable doubt and that this burden is not lessened nor discharged, even where the Appellant admitted in his extra-judicial statement that he committed the offence charged and he referred to the case of Busari Vs State (2015) 5 NWLR (Pt 1452) 343. Counsel stated before coming to a conclusion that an offence has been committed, a trial Court must look for the ingredients of the offence and ascertain critically that the acts of the accused person came within the confines of the particulars of the offence and he referred to the case of Amadi Vs State (1993) 8 NWLR (Pt 314) 64. Counsel reproduced the provision of Section 19 of the ICPC Act under which the Appellant was charged and he referred to the case of Shatta Vs FRN (2009) 10 NWLR (Pt 1149) 403 in outlining the ingredients of the offences against the Appellant as (i) that he is a public officer, (ii) that he used his position, (iii) to gratify himself, or (iv) to confer a corrupt advantage upon himself, or (v) to confer a unfair advantage on himself.

Counsel conceded that the Appellant was a public officer and he proceeded thereafter to traverse through the evidence of the prosecution witnesses and the defence of the Appellant in consideration of the question – whether the Respondent proved the other ingredients of the offences charged vis-a-vis each of the five counts for which the lower Court convicted the Appellant. Counsel stated that the finding of the lower Court that the statement of the Appellant in his extra-judicial statement that he signed all the vouchers and collected all the money amounted to a confession was erroneous because there was no evidence led that the vouchers and monies referred to by the Appellant were those contained in First to the Fifth counts for which he was convicted and that there was no credible evidence led that the Appellant did not attend the conferences mentioned in those counts. Counsel stated that the case against the Appellant revolved around two major ingredients – that he collected money for conferences and that he did not attend the conferences he collected money for, and that for his extra-judicial statement to constitute a confession, it must expressly and unambiguously admit these two ingredients and he referred to the cases of Gbadamosi Vs The State (1992) 9 NWLR (Pt. 266) 465 and Jimoh Yesufu Vs The State (1976) 6 SC 109.

Counsel stated that the said confessional statement of the Appellant was not clear and precise and the lower Court did not look for evidence of corroboration of the statement before coming to the conclusion that it was a confession. Counsel stated that the lower Court failed to consider the evidence led by the Appellant that the Local Government Council uses cheques to effect payment and that cash is not paid pursuant to raising of vouchers as alleged by the Respondent. Counsel referred to the case of Okegbu Vs The State (1979) 11 SC 1 in reiterating that the implication of the plea of Not Guilty entered by the Appellant was that the Appellant joined issues with every part of the case of the Respondent and that the Respondent must prove every fact and circumstance constituting the offence. Counsel thereafter traversed through the evidence led by the Respondent in proof of each of the five counts for which the Appellant was convicted and highlighted the lacunas in the case of the Respondent and the potency of the defence raised by the Appellant and concluded that the Respondent failed to prove each of the counts beyond reasonable doubt as required by law.

Counsel stated that this case was akin to the case of Ajose Vs FRN (2011) 6 NWLR (Pt. 1244) 465, wherein the accused person faced a similar charge and this Court faulted the conviction of the accused person on the ground that the cheques drawn in the name of the accused person for sums he was alleged to have collected were not tendered. Counsel stated that this was the exact same scenario in the present case as the Respondent did not tender the cheque register or the statement of account of the Local Government Council in proof of the case against the Appellant. Counsel stated that the some of the evidence led by the Respondent amounted to oral and documentary hearsay evidence and which the lower Court ought to have rejected and not act upon and he referred to the case of Shell Development Co Ltd Vs Otoko (1999) 6 NWLR (Pt 159) 693.

Counsel referred to some of the documentary exhibits tendered by the Appellant in his defence and stated that they showed that the lower Court ought to have rejected the entirety of the evidence of the fourth prosecution witness as he was not the cashier of the Local Government Council at the times material to the charge against the Appellant and to have not believed the case of the Respondent in the absence of cheques issued in the name of the Appellant for sums collected. Counsel urged the Court to resolve the second issue for determination in favour of the Appellant.

Counsel concluded his arguments by praying the Court to find merit in the appeal and to allow same, set aside the judgment of the lower Court and the conviction and sentence passed on the Appellant and to dismiss the charge against the Appellant and discharge and acquit him accordingly.

In his response, Counsel to the Respondent adopted the two issues for determination formulated by Counsel to the Appellant, but he argued the second issue for determination first. Counsel conceded that, in view of the presumption of innocence enjoyed by an accused person under the provisions of Section 36(5) of the 1999 Constitution, it was the duty of the Respondent to prove the elements of the offences charged against the Appellant beyond reasonable doubt, but noted that proof beyond reasonable doubt did not amount or equate to proof beyond a shadow of doubt and he referred to the cases of Lori Vs State (1980) 8-10 SC 81 and Dibie Vs State (2007) 2 NCC 475. Counsel stated that the burden on the Respondent was to lead qualitative evidence before the lower Court which is strong, cogent, credible and convincing in proof of the ingredients of the offences charged against the Appellant as specified in the enabling penal provision and which irresistibly point at the Appellant, leaving only a remote and unattractive possibility in his favour.

Counsel reproduced the provisions of Section 19 of the Corrupt Practices and other Related Offences Act 2000 under which the Appellant was charged and he outlined the ingredients of the offences charged against the Appellant as (i) that he is a public officer, (ii) that he used his position, (iii) to gratify himself, or (iv) to confera corrupt advantage upon himself, or (v) to confer a unfair advantage on himself. Counsel stated that it was not in contest between the parties at the trial that the Appellant, as the Chairman of Akure North Local Government Area at the times material to the charge, was a public officer and that the lower Court so found. Counsel stated that in the confessional statement of the Appellant tendered as Exhibit Q(v), the Appellant admitted signing the vouchers of all the sums stated in the offences charged and that he collected all the various sums in cash and that this corroborated the evidence of the fourth prosecution witness, the Cashier of the Akure North Local Government Council at the material time, that he personally paid all the sums stated on the vouchers to the Appellant on diverse dates.

Counsel stated that it was correct that the Appellant sought to change in the course of his oral evidence in his defence denying the collection of some of the sums of money and raising the issue of non-issuance and non-tendering of cheques issued in his name for the sums. Counsel stated that this counter story was not put to the fourth prosecution witness during his rigorous cross-examination and can thus only amount to an afterthought that should be ignored by the Court and he referred to the case of Oforlete Vs State (2000) 2 NWLR (Pt 681) 415. Counsel stated that the attitude of the Courts where an accused person makes two contradictory statements is that the statement less favourable to the accused person, and which invariably is the first statement made, will be relied on and the other statement ignored and he referred to the cases of Adun Vs Osunde (2003) 16 NWLR (Pt 847) 643, Ubani Vs State (2003) 4 NWLR (Pt 809) 51, Unobogu Vs State (1974) 9 SC 1 and Silas Vs The State (2009) 17 NWLR (Pt 1169) 33. Counsel stated that this is particularly more so when the Appellant admitted in course of his defence that he made statements to the investigators at ICPC and said he wanted the lower Court to take the statements as part of his defence.

Counsel noted that at the conclusion of the case of the Respondent, the Appellant made a no case submission which the lower Court dismissed and the Appellant pursued up to the Supreme Court and he referred to the judgment of the Supreme Court dismissing the appeal of the Appellant on the no case submission. Counsel stated that the Supreme Court made a finding in the judgment that there was credible evidence that the Appellant collected the various sums mentioned in the offences against the Appellant for seminars/workshops for himself and his wife and that this required explanations from the Appellant. Counsel stated that Appellant failed woefully to present any credible and convincing explanation in his defence in respect of the five counts for which he was convicted and he urged the Court to resolve the second issue for determination in favour of the Respondent.

On the first issue formulated by Counsel to the Appellant, Counsel responded that the allegation of bias and manifest hostility by the trial Court in the course of the trial of this matter was grossly unfair and unappreciative of the industry and precious judicial time and resources that the lower Court invested in the conduct of this matter. Counsel stated that the lower Court was fair to the Appellant in the conduct of this matter from the inception to the conclusion and that the lower Court was neither belligerent nor discriminatory and that the allegation of breach of the fundamental right of the Appellant to fair hearing was absurd. Counsel stated that the Appellant did not show how the highlighted instances of alleged unfairness on the part of the lower Court convincingly affected the proof of the offences against him and that the withdrawal of the former Court to the Appellant from the case was an obvious strategy adopted by the Appellant to frustrate the hearing of the application for the revocation of his bail which was ripe for hearing.

Counsel stated that the submission of Counsel to the Appellant that the lower Court was irked by the decision of the Appellant to appeal its ruling on the no case submission up till the Supreme Court was a figment of the imagination of Counsel to the Appellant and untrue and it is not borne out by the records of the Court. Counsel stated that the comment of the lower Court in the ruling requesting it to disqualify itself, that the application was time wasting, blackmailing and intimidating, was a fair comment and well justified in the face of surrounding facts leading to the conclusion of the lower Court. Counsel stated that the alleged highlighted unfair treatments alluded to by Counsel to the Appellant, and which he said amounted to breach of right of fair hearing, were all matters within the discretionary powers of the lower Court. Counsel urged the Court to resolve also the first issue for determination in favour of the Respondent.

Counsel concluded his arguments by praying the Court to find no merit in the appeal and to dismiss same and affirm the decision of the lower Court including the conviction of and sentence passed on the Appellant.

The complaint of the Appellant under the first issue for determination is denial of fair trial by evident and exhibited hostility and bias displayed by the lower Court because of the Appellant’s decision to exercise of his right of appeal against the ruling of the lower Court on his no-case submission up to the Supreme Court, and thereby breaching his right of fair hearing. Fair hearing, which is the same as fair trial, entails so much in the judicial process. As a matter of law, it is the pivot upon which the entire judicial process or the administration of justice revolves. It is the keystone of the trial process as no trial can be sustained unless it accords withthe principles of fair hearing, which also involves the twin common law rules of natural justice rules, audi alteram partem and nemo judex in causa sua – Destra Investment Ltd Vs Federal Republic of Nigeria (2021) 6 NWLR (Pt 1771) 57, Central Bank of Nigeria Vs Bako (2021) 11 NWLR (Pt 1786) 122.

Fair hearing postulates that where a person’s legal rights or obligations are called into question, he should be accorded full opportunity to be heard before any adverse decision is taken against him with regard to such rights or obligations. It is an indispensable requirement of justice that an adjudicating authority, to be fair and just, shall hear both sides, giving them ample opportunity to present their case in convivial and cordial environment.

Accordingly, a hearing can only be said to be fair when, inter alia, all the parties to the dispute are given a hearing or an opportunity of a hearing in a civil and non-hostile environment. If one of the parties is not given ample opportunity to present his case because of exhibited hostility by a trial Court, such hearing cannot qualify as a fair hearing under the audi alteram partem rule – Metuh Vs Federal Government of Nigeria (2021) 6 NWLR (Pt 1771) 82, John Holt Plc Vs Nwabuwa (2021) 11 NWLR (Pt 1787) 325, Muyideen Vs Nigeria Bar Association (2021) 13 NWLR (Pt 1794) 393, National Ear Care Center Vs Nnadi (2021) 17 NWLR (Pt 1805) 365.

This right to a fair trial is so fundamental a principle of our adjudicatory process that it cannot be compromised on any ground – Nwokoro Vs Onuma (1990) 3 NWLR (Pt 136) 22 at 35, Iwuoha Vs Okoroike (1996) 2 NWLR (Pt 429) 231, Olufeagba Vs Abdul-Raheem (2009) 18 NWLR (Pt 1173) 384. It is perhaps to underscore the inviolability of this right of a party to a dispute to fair hearing that a provision guaranteeing the right to every citizen of this country is firmly ensconced in Section 36 of the Constitution of the Federal Republic of Nigeria 1999. Hence, fair hearing is not only a common law right but also a constitutional right – Bamgboye vs University of Ilorin (1999) 10 NWLR (Pt 622) 290, Agip (Nig) Ltd Vs Agip Petroli International & Ors (2010) 5 NWLR (Pt 1187) 348, Agbiti Vs Nigerian Navy (2011) 4 NWLR (Pt 1236) 175.

The fulcrum of the Appellant’s complaint was apparent bias displayed by the lower Court. Now, bias, in its ordinary meaning, is opinion or feeling in favour of one side in a dispute or argument resulting in the likelihood that the Court so influenced will be unable to hold an even scale. It is a predisposition to decide a cause or an issue in a certain way, which does not leave the mind perfectly open to conviction. It refers to a mental attitude or disposition of a Judge toward a party to the litigation, and not to any views that he may entertain regarding the subject matter involved.

Bias in relation to a Court or Tribunal is an inclination or preparation or predisposition to decide a cause or matter in a certain pre-arranged way without regard to any law or rules. The likelihood of bias may be drawn or surmised from many factors such as corruption, partnership, personal hostility, friendship, group membership or association and so towards or involving a particular party in a case – Usani Vs Duke (2006) 17 NWLR (Pt 1009) 610, Womiloju Vs Anibire (2010) 10 NWLR (Pt 1203) 545 at 561-562, Metuh Vs Federal Republic of Nigeria (2019) LPELR-47132(CA).
In Womiloju Vs Anibire (2010) 10 NWLR (Pt 1203) 545,Adekeye, JSC held at page 571B-E thus:
“One of the twin pillars of the Rules of Natural Justice is the rule against bias, which is expressed in the maxim nemo judex in causa sua. It means that no one should be a judge in his own cause. Fairness of proceedings require that a person who is tainted by likelihood of or actual bias should not take part in the decision making process where the adjudicator is under a duty to act fairly. For instance, an adjudicator must not have any direct financial or proprietary interest in the outcome of the proceedings. In the process of adjudication, there must not be reasonable suspicion of bias or likelihood of bias. Other factors which could show a real likelihood of bias are: (1) Hostility of strong personal animosity towards a party. (2) Personal friendship, family or professional relationship. The test is the impression created in the minds of right minded people. If right thinking persons would think that there is a real likelihood of bias or that the trial judge had not been impartial then his decision cannot stand…”

Thus, where a complaint of denial of fair hearing is raised, the questionto be resolved is whether the hearing can be said to have been conducted in such a manner that an impartial observer will conclude that the Tribunal was fair to all the parties to the proceedings. In other words, whether a trial was conducted according to all the legal rules formulated to ensure that justice is done to all the parties to a cause or matter – Ariori Vs Elemo (1983) 1 SCNLR 1, Okafor Vs Attorney General, Anambra State (1991) 6 NWLR (Pt. 200) 659 at 678, Bamgboye Vs University of Ilorin supra, Kalu Vs State (2011) 4 NWLR (Pt. 1238) 429, Ayoade Vs State (2020) 9 NWLR (Pt 1730) 577.
In resolving this question, the Court is enjoined to have a general objective overview of the entire proceedings that took place, as contained in the records of appeal.

An appellate Court is bound by the records of appeal as transmitted by the parties and it must read the record in the exact content and interpret it – Agbareh Vs Mimra (2008) 2 MJSC 134, Oguntayo Vs Adelaja (2009) 15 NWLR (Pt 1163) 150, Egba Vs State (2019) 15 NWLR (Pt. 1695) 201, Okechukwu Vs Obiano (2020) 8 NWLR (Pt 1726) 276. An appellate Court cannot allow an appellant to go outside the records of appeal and canvass what he thinks is in favour of his case, which is not in the records. Thus, no arguments or submissions in a party’s brief of arguments, however ingenious, can distort or make an iota of difference to the contents of a record of appeal – Sifax (Nig) Ltd Vs Migfo (Nig) Ltd (2018) 9 NWLR (Pt. 1623) 138, Dick Vs Our and Oil Co. Ltd (2018) 14 NWLR (Pt. 1638) 1 and Patrick Vs State (2018) 16 NWLR (Pt 1645) 263.

Counsel to the Appellant highlighted four instances of the perceived bias and hostility allegedly exhibited towards the Appellant by the lower Court. The instances will be considered seriatim. The first instance was that the lower Court, on the one hand, allowed the Respondent to tender an original of a letter written on the letterhead of the Civil Service Commission addressed to the Chairman of ICPC, overruling the objection of Counsel to the Appellant that the letter was a public document requiring certification, and, on the other hand, rejecting in evidence the original of a certificate of attendance of a conference issued to the Appellant on the ground that it was a public document requiring certification.

This Court is unable to understand how this qualifies as an exhibition of bias by the lower Court, particularly more so as Counsel to the Appellant neither contested in his arguments in this appeal the correctness nor displayed the obvious incorrectness of the legal basis of the two decisions of the lower Court. This failure to challenge the correctness of these findings amounts to their acceptance by the Appellant and they are thus conclusive and cannot be inquired into or interrogated by this Court – Trade Bank Plc Vs Pharmatek Industrial Projects Ltd (2020) 8 NWLR (Pt 1725) 124, Hanatu Vs Amadi (2020) 9 NWLR (Pt 1728) 115, Okeremute Vs State (2021) 16 NWLR (Pt 1803) 587. They cannot thus form the basis of an allegation of bias or hostility on the part of the lower Court.

The second instance highlighted by Counsel to the Appellant was the refusal of the lower Court to grant the Appellant an adjournment to enable his Counsel obtain relevant documents for his defence on the ground that it would occasion a delay of the trial, while allowing the application of the Respondent, some months thereafter, to substitute a listed witness with another witnesson the ground that since the evidence to be given by the new witness would be the same as that of the listed witness already before the Court, it did not amount to springing of surprise on the Appellant. Again, this Court does not see the correlation between these two decisions of the lower Court and how they amount to perceived bias and hostility towards the Appellant. Counsel to the Appellant did not also contest in his arguments in this appeal the correctness or display the obvious incorrectness of the legal basis of the two decisions of the lower Court. This is an acceptance of the findings and they cannot form the basis of an allegation of bias or hostility on the part of the lower Court.

Further, the law, by a long line of cases, is, and has always been, that adjournment of cases fixed for hearing are not obtainable as a matter of course or as of right, but may be granted or refused at the discretion of the Court – African Continental Bank Ltd Vs Agbayim (1960) SCNLR 57, Ilona Vs Dei (1971) LPELR 1495(SC), Odusote Vs Odusote (1971) All NLR 219, Alalade Vs Accountants’ Disciplinary Tribunal of the Institute of Chartered Accountants of Nigeria(1975) LPELR 405(SC). In Obomhense Vs Erhahon(1993) 7 SCNJ 479, Karibi-Whyte, JSC, stated that “the grant of adjournment in a cause is a matter entirely within the discretionary jurisdiction of the Court which it can exercise in accordance with the particular facts and circumstances of the case.” In Salu Vs Egeibon (1994) 6 NWLR (Pt. 348) 23, Adio, JSC, reaffirmed that “the grant or refusal of an application for an adjournment involves an exercise of judicial discretion.” Thus, a party does not have a right to an order of adjournment and a refusal of a request for an adjournment cannot be considered oppressive and an indication of hostility unless it is shown that the Court had no justification on the facts and circumstances of the case for exercising its discretion to refuse the application. Counsel to the Appellant made no such contention in his brief of arguments.

The third instance of bias and hostility signposted by Counsel to the Appellant was that the lower Court imposed the maximum punishment of five years on the Appellant, without an option of fine on the ground that Section 19 of the ICPC Act under which thecharge was brought did not provide for an option of fine, while in another case involving the Vice Chairman of Akure North Local Government in Charge No AK/33C/2006, arising from the same audit report and also brought pursuant to Section 19 of the ICPC Act, the lower Court gave the accused person an option of fine. This Court has painstakingly gone through the records of this appeal and cannot find the proceedings and judgment of the lower Court in Charge No AK/33C/2006 referenced by Counsel. This Court is thus handicapped in commenting on what transpired before the lower Court in the said charge.

Moreover, Counsel to the Appellant did not contest or challenge the finding of the lower Court in this matter that Section 19 of the ICPC Act under which the charge against the Appellant was brought did not provide for an option of fine. Thus, happenstance that the lower Court indeed granted the accused person in Charge No AK/33C/2006, arising from the same audit report and also brought pursuant to Section 19 of the ICPC Act an option of fine, the decision was not in accordance with the statutory provision, and is an error. It is pure commonsense that thedecision of the lower Court to correct an apparent error it committed in an earlier and a different charge cannot amount to perceived bias and hostility against the Appellant in the present charge.

It is also trite law that a Court is not bound by its previous decision to exercise its discretion in a particular way because that will in effect be putting an end to the discretion. In Anyah v. African Newspapers of Nig. Ltd (1992) 6 NWLR (Pt. 247) 319 at 334, the Supreme Court held that:
“In a question of discretion, the Court exercising it cannot be bound by a previous decision, for that would be putting an end to the discretion. You cannot lay down hard and fast rules as to the exercise of judicial discretion by a Court; forthe moment you do that, the discretion is fettered.”
This position was restated and affirmed in the cases of Long-John Vs Blakk (1998) 6 NWLR (Pt 555) 524 at 543, Attorney General Rivers State Vs Ude (2006) NWLR (Pt. 1008) 436 at 461, Dokubo-Asari Vs Federal Republic of Nigeria (2007) 5-6 SC 150, Union Bank of Nigeria Plc Vs Astra Builders W. A. Ltd (2010) 5 NWLR (Pt. 1186) 1, Oyegun Vs Nzeribe (2010) 7 NWLR (Pt 1194) 577. Thus, the fact that the lower Court did not follow a previous decision in passing sentence on the Appellant cannot be evidence of bias and hostility.
The final instance referred to by Counsel to the Appellant was the comment made by the lower Court in the ruling it delivered on the application of the Appellant requesting it to disqualify itself on the ground of likelihood of bias and wherein the lower Court described the application as “time wasting, blackmailing and intimidating”. Counsel stated that the description of the erstwhile Counsel to the Appellant as a blackmailer and intimidator led to the Counsel withdrawing from the case. The ruling referred to was delivered by the lower Court on the 7th of May,2014 and the Appellant predicated the request for disqualification on the ground that, having determined Charge No AK/33C/2006 which arose from the same audit report and in respect of the same Local Government Area and which also formed the basis of the charge against the Appellant, the lower Court had foreknowledge of the facts of the case and was likely to be biased against the Appellant in the present charge. The lower Court noted in the Ruling thus:
“The issues and facts raised and decided by me in Charge No AK/33C/2006 are not the same as in the present matter. The issue of attendance of seminars has nothing to do with the activities of the Committee to deal with the visit of the Governor which is the main issue in Charge No AK/33C/2006.
On Charge No AK/33C/2006, the accused Applicant was neither a witness nor an accused person and the mere mention and repetition of his wife’s name in Charge AK/33C/2006 are facts and features peculiar to the charge and they are not at my instance. Paragraphs 17, 25 and 29 of the affidavit in support of the motion are false. Most of the paragraphs of the affidavit in support are not only speculativebut also unreasonable. …”
The lower Court thereafter stated the general principles of law on bias and proceeded thus:
“What are the circumstances of this matter which was filed on the 5th October, 2006? After the plea of the accused person/Applicant was taken, I granted him bail on what I consider to be liberal terms that is, not on difficult or on near impossible to fulfill conditions.
As at 2007, the prosecution had closed its case. I ensured that the accused/Applicant was afforded fair hearing and given ample opportunity to cross-examine the prosecution witnesses and ventilate his rights and lawful reactions without any hindrance whatever.
I thereafter called on the Accused/Applicant to enter upon his defence. He however and well within his rights, his Counsel made a no case to answer submission which was opposed by the prosecution. In my considered view and based on the evidence before me and my modest understanding of the law, I overruled the Counsel and called again, on the second occasion, on the Accused/Applicant to enter upon his defence. Rather than enter upon his defence, the Appellant, well within his rights, appealed the ruling to the Court of Appeal which dismissed the said appeal.
I again, on the third occasion, called on the Applicant to enter upon his defence and rather than do so, he, well within his rights, appealed the ruling of the Court of Appeal to the Supreme Court which again dismissed the said appeal. Thus indicating to me on my Ruling that the Applicant has a case to answer, and was not at that stage of the trial, guilty of any offence. Throughout the trial of this case the Applicant did not allege any likelihood of bias on my part and he made no such allegations against me before the Court of Appeal and the Supreme Court.
He entered upon his defence and later asked for an adjournment to enable him obtain certain documents with which he intended to prosecute his defence. He said he could not proceed with his defence without the required “certificates”. I received arguments from the accused person and the prosecution and overruled him as I did not see any merit in the said application. I called on the accused to proceed with his defence. He again prayed for more time to prepare for his defence and I obliged him.
… Judgment in Charge No AK/33C/2006 was based on the quality of the evidence which are peculiar to same and the accused person was neither a witness nor an accused person therein and I did not receive any indicting evidence against him. In my judgment, I did not give any order against the Applicant and did not make any adverse comment or castigating remarks against him as to provide a link between him and Charge No. AK/33C/2006.
Paragraphs 17, 25 and 29 of the affidavit of the Accused/Applicant are false as previously demonstrated in this ruling. Paragraphs 16, 20, 24, 26, 27 and 28 of the Applicant’s affidavit are speculative and baseless. …
I do not see any merit whatsoever in the application of Accused/Applicant and for a matter that has been pending in my Court for about eight years, I see this application as time wasting, blackmailing and intimidating which I do not intend to succumb to. I accordingly refuse the application while reassuring the Applicant of my resolve to continue with the matter in the best tradition of the Bench and my oath of office. …”

Now, reading the words “time wasting, blackmailing and intimidating” in context as used by the lower Court in the ruling, it is obvious that they did not refer to the person of the erstwhile Counsel to the Appellant who filed the application, but to the application filed. Secondly, and more importantly, from the analysis of the facts as made out by the lower Court in the above excerpt of the ruling, this Court agrees with Counsel to the Respondent that its description of the application as “time wasting, black-mailing and intimidating” was a fair comment. The Appellant did not challenge the ruling by way of an appeal and the comments of the lower Court on the application cannot qualify as evidence of bias and hostility.

Reading through the records of the proceedings that took place in the lower Court, the allegation of bias and hostility leveled against the lower Court and the description of the attitude of the lower Court to the Appellant as being belligerent, partial and discriminatory is most unfortunate, unfair, unjust, and very uncharitable. The records show that the Appellant and his Counsel, both erstwhile and present, tried different gimmicks and at different stages of the proceedings to stall, stop and prevent the lower Court from making progress with the hearing of the matter. It is the resolute, matured and disciplined refusal of the lower Court to be derailed from its task that the Appellant and his Counsel have labeled belligerent, partial and discriminatory and as amounting to hostility and bias. It must always be understood that to charge a Court with bias or likelihood of bias, there must be cogent and reasonable evidence to satisfy the Court that, there was in fact such bias or real likelihood of bias as alleged.
It is a very grave matter and the accuser must be ready and able to establish the facts and grounds he relies upon before he can succeed in his complaint. Allegations of bias cannot be founded on mere conjectures but on concrete and real evidence. Although justice in law must not only be done but seen to be manifestly done, bias cannot be proved by sheer and vague suspicion and scandalous allegation against a Court – Ojengbede Vs Esan (2001) 18 NWLR (Pt 746) 771, Osayomi Vs State (2007) 1 NWLR (Pt 1015) 352, Womiloju Vs Anibire (2010) LPELR-3503 (SC) 31, Ahangba Vs Nigerian Army (2021)LPELR-54841(CA), Adingarwa Vs Assandariyu (2021) LPELR-54645(CA). In Womiloju Vs Anibiresupra, Muhammad, JSC stated:
“A Counsel who decides to launch an attack on a Judge for bias must support his allegation by concrete evidence. I think I need to draw attention of litigants generally and legal practitioners in particular that the allegation of bias is a very serious attack on the person and integrity of a Judge. A Counsel who decides to launch such attack on a Judge must be prepared to show concrete evidence in support of his allegation.”

An allegation of lack of fairness and breach of right of fair hearing on the grounds of belligerence and discrimination leading to bias and hostility questions the sense of fairness and justice of the Judge concerned and suggests that he is misfit for the task of adjudicating disputes. Thus, it is not one that should be made lightly, whimsically or off-handedly. It is, with utmost respect, an act of irresponsibility on the part of a Counsel to make such allegations, as was done in the present case, without concrete facts supporting it. This point was made by this Court in the case of Adebanjo Vs Adesanya (2018) LPELR 46661(CA) thus:
“In upholding the decision of the lower Court, I wish to add my voice, by way of echo to the regular abuse by parties through their counsel of the expression “lack of fair hearing”. The allegation of lack of fair hearing is a serious allegation as it relates to trial either in Court or in a Tribunal. Indeed, I make bold to say, in any aspect of human life. That is why it is one of the guaranteed rights which are fundamental. This right is entrenched in Section 36 of Constitution of the Federal Republic of Nigeria 1999. This right is so fundamental that any proceedings done without due regard to it will be declared void…
Realizing how fundamental fair hearing is to validating any proceedings before a Court or Tribunal, lawyers on the losing end of litigation have embraced using the lack of it as a ready complain to overturn the decision of a Court of law. Some lawyers have seen it as an escape route for cases poorly conducted. For them, it is the lifeline for a sinking case. For some, it is like, no matter how bad your case in the lower Court, just hold onto a ground on lack of fair hearing and you aresafe.
The point must be made that the allegation of lack of fair hearing must be made responsibly and not spuriously. Counsel should not use it in such a way as to blackmail any Court whether lower or appellate Court.”

The complaint of the Appellant on the issue of lack of fair hearing is baseless and totally misconceived and it is hereby dismissed by this Court.

The second complaint of the Appellant in the appeal was on whether the lower Court was correct when it found that the Respondent made out a sufficient and credible case to sustain the charge against the Appellant. The Appellant was convicted on five counts out of the nine counts on the charge sheet. The Statement of Offence in the five counts was the same – using office to confer corrupt advantage contrary to and punishable under Section 19 of the Corrupt Practice and Other Related Offences Act, 2000. The Particulars of the Offence in the five counts read thus:
“Count One: Dele Fagoriola (M), in September, 2004 at Akure North Local Government Council of Ondo State, being a public officer did use his position as Chairman Akure North Local Government Area to confer corrupt advantage upon himself by collection of the sum of N155,000.00 belonging to the Local Government for a 4 day National Workshop on Complementary Role of Civil Service Rules, the Criminal Code and Anti Corruption Act in the Fight Against Fraud and Corruption in Nigeria, organized by the Institute of Chartered Accountant of Nigeria, Jos District, between 24 and 27th August, 2004, which he never attended.
Count Two: Dele Fagoriola (M), between January, 2004 and February 2004, or thereabout at Akure North Local Government Council of Ondo State, being a public officer did use his position as Chairman Akure North Local Government Area to confer corrupt advantage upon himself by collection of the sum of N129,000.00 belonging to the Local Government for purportedly attending a 3 day National Workshop on Review, Update, Promotion and Finance of Primary Health Care (PHC) Delivery System for Local Government Council in Nigeria at Hamdala Hotel, Waff Road, Kaduna between 13th and 15th January, 2004, which he never attended.
Count Three: Dele Fagoriola (M), between July 2004 and September, 2004, or thereabout at Akure North Local Government Council of Ondo State, being a public officer did use his position as Chairman Akure North Local Government Area to confer corrupt advantage upon himself by collection of the sum of N134,950.00 belonging to the Local Government for purportedly attending Workshop on Result Oriented Workshop for the Millennium at National Center for Economic Management, Ibadan between 21st and 23rd July, 2004, which he never attended.
Count Four: Dele Fagoriola (M), between December 2003 and February, 2004, or thereabout at Akure North Local Government Council of Ondo State, being a public officer did use his position as Chairman Akure North Local Government Area to confer corrupt advantage upon himself by collection of the sum of N145,000.00 belonging to the Local Government for purportedly attending Workshop on National Summit on Governance and Public Administration at Sheraton Hotel and Towers Abuja between 8th and 10th December, 2003, which he never attended.
Count Five: Dele Fagoriola (M), between May 2004 and September, 2004, or thereabout at Akure North Local Government Council of Ondo State, being a public officer did use his position as Chairman Akure North Local Government Area to confer corrupt advantage upon himself by collection of the sum of N124,500.00 belonging to the Local Government for purportedly attending a Seminar for Stakeholders Conference on Political Reforms, at Africa Hall, International Conference Center, Abuja between 28th and 29th May, 2004, which he never attended.

Now, this is a criminal trial. It is settled in our jurisprudence that the burden of proving that any person has committed a crime or a wrongful act rests on the person who asserts it. Where the commission of crime by a party is in issue in any proceedings, it must be proved beyond reasonable doubt. In discharging the burden, all the essential ingredients of the crime alleged must be proved beyond reasonable doubt. The burden never shifts. Therefore, if in a criminal trial, on the whole of the evidence before it, the Court is left in a state of doubt, the prosecution would have failed to discharge the burden of proof which the law lays upon it and the defendant will be entitled to an acquittal.

It must, however, be stated that proof beyond reasonable doubt is “not proof to the hilt” and is thus not synonymous with proof beyond all iota of doubt or proof of a mathematical certainty. This is due to the aphorism that absolute certainty is impossible in any human venture, inclusive of ministration of justice. Thus, if the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence “of course it is possible, but not in the least probable”, the case will be said to have been proved beyond reasonable doubt – Ezeani Vs Federal Republic of Nigeria (2019) 12 NWLR (Pt 1686) 221, Phillip Vs State (2019) 13 NWLR (Pt 1690) 209, Sanmi Vs State (2019) 13 NWLR (Pt 1690) 551, Itodo Vs State (2020) 1 NWLR (Pt 1704) 1, Ibrahim Vs Commissioner of Police (2020) 15 NWLR(Pt 1746) 122, Fekolomoh Vs State (2021) 6 NWLR (Pt 1773) 461.

The ingredients of the five counts of offences on which the Appellant was convicted are the same and they are that the Respondent must prove beyond reasonable doubt that (i) the Appellant is a public officer, (ii) that he used his position, (iii) to gratify himself, or (iv) to confer a corrupt advantage upon himself, or (v) to confer a unfair advantage on himself.

Reading through the records of appeal, the Respondent relied on the extra-judicial statements of the Appellant, particularly the statement tendered as Exhibit Q(v)(a), the eye witness accounts of the third and fourth prosecution witnesses and the circumstantial evidence in the testimonies of the first and eighth prosecution witnesses, the Investigating Police Officers, and of the sixth and seventh prosecution witnesses and in the documentary evidence tendered in proving the case against the Appellant. A read through the judgment shows that it was on the strength of these pieces of evidence that the lower Court convicted the Appellant on the five counts.

In the judgment, the lower Court noted that there was no contest that the Appellant was a public officer at the times material to the charge and it thereafter considered each of the five counts separately. On the first count, the lower Court referred to the evidence of the fourth prosecution witness, the Cashier of the Akure North Local Government Council at the times material to the charge, who testified that he paid to the Appellant that sum of N155,000.00 referred to in the count for the purpose of attending a four day National Workshop on Complementary Role of Civil Service Rules, the Criminal Code and Anti Corruption Act in the Fight Against Fraud and Corruption in Nigeria, organized by the Institute of Chartered Accountant of Nigeria, Jos District, between 24 and 27th August, 2004 and the voucher for the payment tendered as Exhibit E.
The lower Court referred to the evidence of the seventh prosecution witness, a Consultant in Human Resources Development with the Institute of Chartered Accountant of Nigeria, that the Workshop indeed held in Ota between the said dates, but Appellant did not attend the workshop and his name was not on the list of certified participants. The lower Court noted that the evidence of the seventh prosecution witness was corroborated by a letter, Exhibit S, from the Chairman of the Jos District of the Institute of Chartered Accountant of Nigeria, the organizers of the Workshop, confirming that the name of the Appellant was not on the list of participants. The lower Court also noted that the Appellant offered nothing plausible to show that he attended the Workshop.

The lower Court referred to the extra-judicial statement of the Appellant, Exhibit Q5A, in which all the vouchers for the payment of the different sums contained in the five counts of offences were listed, and wherein the Appellant admitted that he signed all the vouchers and all the amounts contained therein were collected by him, including the amount on the payment voucher, Exhibit E. The lower Courtheld that the admission of the Appellant in the extra-judicial statement amounted to a confession and that since the statement was voluntary, free and unambiguous, it could support a conviction. The lower Court concluded on count one thus:
“I further hold that the accused person conferred corrupt advantage on himself in the sum of N155,000.00 when the sum was approved for him to attend a seminar organized by ICAN when he did not participate or attend the Conference. I therefore find the accused person guilty on count 1.”

On count two, the lower Court noted that the payment voucher for the sum of N129,000.00 paid to the Appellant for a three day National Workshop on Review, Update, Promotion and Finance of Primary Health Care (PHC) Delivery System for Local Government Council in Nigeria at Hamdala Hotel, Waff Road, Kaduna between 13th and 15th January, 2004 was tendered as Exhibit F. The lower Court referred to the evidence of the fourth prosecution witness who affirmed that he paid the sum of the payment voucher to the Appellant and noted that the payment voucher was one of those listed in the extra-judicial statement of the Appellant,Exhibit Q5A, and in respect of which the Appellant admitted collecting the sum on. The lower Court continued thus:
“On whether the accused person attended the programme or not PW1 gave testimony as follows:
‘We travelled to Hamdala Hotel, Kaduna and met one HajiaKatango who was in charge and she confirmed to us that the seminar never took place at Hamdala Hotel on those dates.”
Exhibit B is the letter written to ICPC by Hajiya Hassan A. A. Kaltungo (Mrs.) in which she stated that records available revealed that Hamdala Hotel did not host any function tagged ‘National Workshop on Review, Update, Promotion and Finance of Primary Health Care (PHC) Delivery System for Local Government Council in Nigeria even throughout the year 2004’
In his defence, the accused person claimed that there was a letter of invitation that the venue of the seminar changed to another hotel in Kaduna. That a certificate was issued which he handed over to ICPC. I have looked at the Exhibit Q2 and Q3 being statements of the accused person and the documents handed over to the Commission. I find no document in relation to the seminar inKaduna.
I therefore hold that the evidence of the accused person is an afterthought – an attempt to save himself, he made up the story. I hold that the Workshop did not take place in Hamdala Hotel, Kaduna as shown in the payment voucher or anywhere else. I also hold that the accused person deliberately collected the sum of N129,000.00, using his position to confer corrupt advantage on himself. I hold that the accused person is guilty as charged on the 2nd count.”

On count three – that the accused person collected the sum of N134,950.00 belonging to the Local Government to attend a Workshop on Result Oriented Workshop for the Millennium at National Center for Economic Management, Ibadan between 21st and 23rd July, 2004, the lower Court deliberated thus:
“The prosecution alleged that the accused person did not attend the programme and during their investigation, the investigation officers travelled to Ibadan and saw one Mr. Fakojuwa, the Director General, who confirmed that no Workshop was organized. The officer PW1 also testified that Mr. Fakojuwa denied that the receipt presented by the accused person was issued byNACEMA. In his reply to the letter on investigation activities written, Mr. Fakojuwa stated in Exhibit C:
a. There was no Workshop on Creating a Result Oriented Workforce for the Millennium between 21st – 23rd of July, 2004 or any date before or after held at the Center.
b. In view of the above, we cannot provide list of participants or course fee as there were no participants or fees paid.
c. In the same vein we cannot produce any evidence of payment made on behalf of Hon. Dele Fagoriola as no such payments were made by or on his behalf to the Center.
Apart from the ipse dixit of the accused person, I have no evidence that the accused person attended or that indeed there was a seminar. PW4 confirmed that he paid the sum on Exhibit G to the accused person on 30/2/2004. The accused person also confirmed in his confessional statement Exhibit Q5A that he collected money on Payment Voucher number 17/9/2004. I hold without saying more that I resolve Count No 3 against the accused person.”

With regards to count four – that the Appellant collected the sum of N145,000.00 belonging to the Local Government to attend a Workshopon National Summit on Governance and Public Administration at Sheraton Hotel and Towers Abuja between 8th and 10th December, 2003, the lower Court stated in the judgment thus:
“The prosecution witness PW1 testified that the programme did not hold because it was never organized. One Syed Imran Azhor, the Executive Assistant Manager of Abuja Sheraton Hotel and Towers in his reply to the letter of enquiry written by the Commission, Exhibit O, stated thus:
‘We are sorry to inform you that we have checked through our file for this period and wish to confirm to you that such event did not take place in our property.’
The PW4 confirmed that the accused person was paid the sum of N145,000.00 via PV-176/Jan/2004 which is one of the Payment Vouchers listed in Exhibit Q5A. The accused person confirmed that he collected the money. I have no evidence before me that the workshop took place. I therefore find the accused person guilty on count 4.”

In respect of count five – that the Appellant collected the sum of N124,500.00 belonging to the Local Government to attend a seminar for Stakeholders Conference on Political Reforms,at Africa Hall, International Conference Center, Abuja between 28th and 29th May, 2004, the lower Court deliberated in the judgment thus:
“In his evidence, the prosecution testified that it contacted International Conference Center Abuja and that one Emeka Efuba confirmed that there was no Workshop/Seminar for Stakeholders Forum on those dates. Rather the dates had been booked for Democracy Day Lecture by the then Political Adviser to the President, Professor Jerry Gana. They were provided with the request and approval given to Professor Gana for the use of the hotel. Exhibit A which is a letter written by Engineer Emeka Efuba, General Manager (ICC & ES) confirms in paragraph B that:
‘From our records, no Seminar for Stakeholders Conference on Political Reform was held on the 28th and 29th of May, 2004.’
Exhibit I is evidence that the accused person collected the sum of N124,500.00. Though the accused person claimed he attended the programme with his own money, in Exhibit Q5A he admitted collecting the money via PV 14/Sept/2004. I have gone through the list of documents handed over to the Commission by the accused person aslisted in Exhibits Q2 and Q3. I do not see any Certificate relating to the Workshop on the list. I therefore find him guilty on Count 5.”

The complaint of the Appellant under the second issue for determination is directed against these deliberations, evaluations and findings made by the lower Court. It is the primary responsibility of a trial Court to evaluate the evidence presented by parties before it, ascribe probative value to the evidence and then come up with a decision. The law is that where the records of proceedings show that a trial Court assessed the evidence produced before it and accorded probative value to them and placed them side by side on an imaginary weighing scale before coming to a conclusion and making a finding of fact on side of the evidence that tilts the scale, such a finding must be accorded due weight so long as it is not unreasonable and not perverse. An appellate Court will not interfere with the evaluation of evidence carried out by a trial Court and will not substitute its own views for that of the trial Court unless the conclusion reached from the facts is perverse – Enukora Vs Federal Republic of Nigeria(2018) 6 NWLR (Pt 1615) 355, Edwin Vs State (2019) 7 NWLR (Pt 1672) 551, State Vs Gbahabo (2019) 14 NWLR (Pt 1693) 522, Tope Vs State (2019) 15 NWLR (Pt 1695) 289, Mohammed Vs State (2020) LPELR-52451(SC).
In other words, an appellate Court will only interfere with the evaluation of evidence carried out by a lower Court where an appellant visibly demonstrates the perversity of the findings made by the lower Court by showing that the lower Court (i) made improper use of the opportunity it had of seeing and hearing the witnesses; or (ii) did not appraise the evidence and ascribe probative value to it; or (iii) drew wrong conclusions from proved or accepted facts leading to a miscarriage of justice. Where an appellant fails to do so, an appellate Court has no business re-evaluating the evidence and interfering with the findings of the lower Court – Busari Vs State (2015) 5 NWLR (Pt. 1452) 343 at 373, Ude Vs State (2016) 14 (Pt 1531) 122, Amadi Vs Attorney General of Imo State (2017) 11 NWLR (Pt 1575) 92, ABC (Transport Co) Ltd Vs Omotoye (2019) LPELR-47829(SC), Adamu Vs Federal Republic of Nigeria (2021) 12 NWLR (Pt 1790) 377.
In Hanatu Vs Amadi (2020) 9 NWLR (Pt 1728) 115, the Supreme Court at page 132D-G explained the position of the law thus:
“An appeal is an invitation to the superior Court to review the decision of the lower Court and enter a decision that the Court below ought to have reached. The appellate procedure is a grievance procedure. The appeal Court does not substitute its discretion or opinion for that of the Court below from which the appeal emanates. In the appeal procedure, it is incumbent on the appellant to show how the Court below erred or was wrong in the decision appealed against. By virtue of Section 168(1) of Evidence Act, 2011, there is a presumption in favour of the correctness of the decision appeal against and the burden of showing the contrary is on the appellant. This presumption enjoins the appellant to demonstrate how wrong in terms of evidence as well as both procedural and substantive laws the decision appeal against was.”

Reading through the submissions of Counsel to the Appellant in the brief of arguments, his contentions against the deliberations and findings of the lower Court were four (i) that the lower Court overlooked the testimony ofthe Appellant that in the Local Government Council cash sums could only be collected after cheques have been issued in favour of the beneficiary and not through payment vouchers as alleged by the Respondent and that as such the failure of the Respondent to tender cheque book register showing the cheques issues in favour of the Appellant for sums he was alleged to have collected and the bank statements of account of the Akure North Local Government Council showing the cashing of the cheques by the Appellant meant that the Respondent did not prove its case beyond reasonable doubt; (ii) that the evidence of the first and eight prosecution witnesses, the Investigative Officers of the Respondent, on the findings the made during their investigation, including the letters, the responses to their investigation enquiries, tendered amounted to hearsay evidence that the lower Court ought not to have acted upon; (iii) that the fourth prosecution witness who testified as the cashier of the Akure North Local Government Council was not the cashier at the times material to the charge against the Appellant and the lower Court ought not to have relied on his evidence; and (iv)that the lower Court was in error when it treated the extra-judicial statements of the Appellant as amounting to a confession.

On the first contention of Counsel to the Appellant, the Respondent led evidence through the first prosecution witness, the Investigating Officer with ICPC, the third prosecution witness, the Payment Voucher Clerk of Akure North Local Government Council, and the fourth prosecution witness, the Cashier of Akure North Local Government Council, that the payments referred to in Counts One to Five were made to the Appellant by payment vouchers and that the payment vouchers were duly signed by the Appellant evidencing the receipt of the various sums of monies. The payment vouchers were tendered as Exhibits E, F, G, H and I. None of the three witnesses was cross-examined on the issue of whether or not payment of cash sums in the Local Government Council were made only by cheques and not by payment vouchers.
The law is that, in such circumstances, the evidence of the three witnesses on the mode of payment of the cash sums to the Appellant, i.e. by payment vouchers, will be believed and any subsequent suggestion otherwise by theAppellant or his Counsel is to be treated as an afterthought – Isah Vs State(2018) 8 NWLR (Pt 1621) 346, Patrick Vs State (2018) LPELR 43862(SC), Ifedayo Vs State (2018) LPELR 44374(SC), Dahiru Vs State (2018) LPELR 44497(SC), Ola Vs State (2018) LPELR 44983(SC), Yusuf Vs State(2019) LPELR 46945(SC). In Oforlete Vs State (2000) 12 NWLR (Pt 681) 415, Achike, JSC, made the point thus:
“… where the adversary fails to cross-examine a witness upon a particular matter, the implication is that he accepts the truth of that matter as led in evidence. … After all, the noble art of cross-examination constitutes a lethal legal weapon in the hands of the adversary to enable him effect the demolition of the case of the opposing party. It is therefore good practice for counsel not only to put across his client’s case through cross-examination, he should, as a matter of the utmost necessity, use the same opportunity to negative the credit of that witness whose evidence is under fire. Plainly, it is unsatisfactory if not suicidal bad practice for counsel to neglect to cross-examine a witness after his evidence-in-chief in order to contradicthim or impeach his credit while being cross-examined but attempt at doing so only by calling other witness or witnesses thereafter. That is demonstrably wrong and will not even feebly dent that unchallenged evidence by counsel leading evidence through other witnesses to controvert the unchallenged evidence.”

Further, the Appellant admitted in his extra-judicial statement, particularly Exhibit Q5A, that he signed the payment vouchers and collected all the monies stated thereon. The reference numbers of the payment vouchers tendered as Exhibits E, F, G, H and I were part of those listed in the extra-judicial statement. The extra-judicial statement was admitted in evidence without objection from the Appellant and/or his Counsel and the Appellant did not at anytime in the course of the trial, and has not in this appeal, contested or denied making the extra-judicial statement. It is settled law that an admission made at anytime by a person charged with a crime suggesting that he committed the offence is a relevant fact to be taken into consideration by the Court – Ikemson Vs The State (1989) 3 NWLR (Pt 110) 455, Adeyemi Vs State (1991)LPELR-172(SC), Gbadamosi Vs State (1992) 11-12 SCNJ 268, Akinmoju Vs The State (2000) 21 WRN 88 at 94, Nwachukwu Vs State (2002) LPELR-2084(SC), State Vs Ahmadu (2015) LPELR-25598(CA). In Onungwa Vs State (1976) LPELR-2703(SC), Idigbe, JSC, made the point thus:
“We are satisfied that an admission made at any time by a person charged with a crime suggesting the inference that he committed the offence is a relevant fact against the maker and if made voluntarily, is admissible in evidence. Equally any information given by a person accused of an offence leading to discovery of any fact material to the charge against him, if made voluntarily is relevant and admissible and such information is no less voluntary merely because it was given in answer to a question asked in the course of investigations in respect of the charge provided that no threat or inducement or promise by anyone in authority was offered to the accused person.”

In Amala Vs State (2004) 11 MJSC 147, the Supreme Court reiterated that the extra-judicial statement made by a prisoner is admissible in evidence at the trial of the prisoner, and if it is evident that they were madevoluntarily by the prisoner, such evidence becomes admissible against him.

The second contention of the Counsel to the Appellant suggesting that the evidence of the first and the eighth prosecutionwitnesses contained oral and documentary hearsay is also not well founded. The first prosecution witness, Samuel Stephen Lodom, was an Investigator with ICPC while the eighth prosecution witness, TabhitaBakoi, was a Superintendent of Police attached to ICPC as an Investigator. Both witnesses testified that they were the officers detailed to investigate the petition written against the Appellant and they gave detailed evidence on the steps they took in carrying out their investigation and of the findings of the investigations and they tendered documents recovered in the course of the investigations.

It is settled law that the evidence of an Investigating Police Officer of what he actually saw or witnessed, or discovered, or was told in the course of his work as an investigator is not hearsay evidence and that a trial Court is entitled to consider it one way or another in coming to a just decision – Oladejo Vs The State (1994) 6 NWLR (Pt 348) 101, Kachi Vs State (2015) 9 NWLR (Pt 1464) 213 at 234-235, Anyasodor Vs State (2018) 8 NWLR (Pt 1620) 125, Olaoye Vs State (2018) 8 NWLR (Pt 1621) 281 at 301. In Kamila Vs State (2018) LPELR-4360(SC), theSupreme Court, per Amiru Sanusi, JSC, made the point as follows:
“Again on the quality of the testimony of PW3, who is the investigation police officer which the appellant’s learned counsel called for its discountenance because according to him it is hearsay evidence. Here, I do not share the appellant’s counsel’s view that the evidence of an IPO amounts to hearsay evidence because as an IPO he narrates to the Court the outcome of his investigation or enquiries or what he recovered or discovered in the course of his duty. He must have discovered or recovered some pieces of evidence vital to the commission of the crime which trial Courts normally consider in arriving at a just decision one way or the other. The lower Court was therefore right in refusing to discountenance such evidence adduced or given by PW3.”

Additionally, the sixth and seventh prosecution witnesses gave evidence corroborating and confirming the findings of the investigation of the first and eighth prosecution witnesses in respect of counts one and two. It is trite that the effect of corroboration is to give support or strength to the assertion of the prosecution. It ismeant to confirm and support that which as evidence is sufficient and credible – Gabriel Vs State (2010) 6 NWLR (Pt 1190) 280, Kiwo Vs State (2020) LPELR-53900(SC), Abdu Vs State(2021) LPELR-55097(CA).

The third contention of the Counsel to the Appellant is that the fourth prosecution witness who testified as the cashier of the Akure North Local Government Council was not the cashier at the times material to the charge against the Appellant and the lower Court ought not to have relied on his evidence. The records of appeal showed that the witness testified as the Cashier of the Akure North Local Government Council and he was not challenged, contradicted or controverted on this description by the Appellant or his Counsel under cross-examination. The evidence of the witness was short, sharp and direct and all he did was to identify the payment vouchers by which he paid the sums of money mentioned in the counts to the Appellant and the signature of the Appellant on the payment vouchers confirming receipt of the various sums. The Appellant admitted in his voluntary extra-judicial statement that he signed the payment vouchers and that he collected thesums of money. The issue raised by the Appellant in his oral evidence in his defence as to whether or not the fourth prosecution witness had been officially confirmed as the Cashier of the Local Government Council as the date of his testimony, and raised nine years after the evidence of the fourth prosecution witness, was not only an afterthought, it was also frivolous and downright irrelevant to the credibility of the evidence of the witness.

The fourth contention of the Counsel to the Appellant is that the lower Court was in error when it classified the extra-judicial statement of the Appellant as amounting to a confession. Counsel noted that the Appellant only admitted collecting the sums of monies on the payment vouchers in the extra-judicial statement and did not admit that he did not attend the workshops and seminars for which he collected the monies, and he submitted that the extra-judicial statement cannot thus amount a confession of the commission of the five counts of offences. Now, Section 28 of the Evidence Act, 2011 defines a confession as an admission made at any time by a person charged with commission of a crime stating or suggesting theinference that he committed the crime in question. The Supreme Court as stated severally that confession refers to an admission made at any time by a person charged with a crime suggesting or stating that he committed the crime – Saidu Vs The State (1982) 4 SC 41 at 56-57, Ikemson&Ors Vs The State (1989) 3 NWLR (Pt 110) 476, Akpan Vs The State (1990) 7 NWLR (Pt 160) 101 at 109,Nwaebonyi Vs The State (1994) 5 NWLR (Pt 343) 138 at 149, Edighere Vs The State (1994) 5 NWLR (Pt 344) 312 at 321, Kasa Vs The State (1994) 5 NWLR (Pt 344) 269, Federal Republic of Nigeria Vs Iweka(2011) LPELR-9350(SC).
In other words, a confession is not only an extra-judicial statement that categorically, precisely and unequivocally acknowledges that the maker thereof committed the offence for which he was charged, as submitted by Counsel to the Appellant, but also includes an extra-judicial statement that suggests the inference that the maker committed the offence charged. Dovetailing from the above, the Supreme in Adebayo Vs State (2014) LPELR-22998(SC), per Ariwoola, JSC, stated that:
“A confession is an admission made at any time by a person chargedwith a crime, stating or suggesting the inference that he committed the crime and this includes both extra-judicial and judicial confessions. It also includes an incriminating admission made that is not direct and positive and short of a full confession. See Section 27(1) of the Evidence Act. Confession has also been held to be a criminal suspect’s oral or written acknowledgement of guilt, which often includes details about the crime alleged. In other words, a confession is an acknowledgement in express words by the accused in a criminal case, of the truth of the main fact charged or of some essential part of it. See Akpan vs. State (2001) 11 SCM 66; (2001) 15 NWLR (Pt. 737) 745; (2001) 7 SC (Pt. 1) 124; Nwachukwu vs. The State (2002) 12 SCM 143; (2002) 7 SC (Pt. 1) 124; (2002) 11 NSCQR 663, Dare Jimoh Vs. The State (2014) LPELR – 22464 (SC), Onuoha vs. The State (1987) 4 NWLR (Pt. 65) 331.” (underlining for emphasis)
Thus, any extra-judicial statement made by an accused person wherein he admits only some of the essential ingredients of the offence charged, and not all of it, will still amount to a confession. The Appellant admitted signing forand collecting the sums stated in counts one to five of the charge, thus leaving only the question of whether he attended the seminar/workshop for which the monies were disbursed. The classification of the extra-judicial statement as a confession by the lower Court cannot thus be faulted. Anyhow, as can be seen from the summary and the above reproduced excerpts of the deliberations of the lower Court in the judgment, the Appellant was not convicted solely on the contents of his extra-judicial statement. The lower Court merely used the contents of the extra-judicial statement as additional evidence, confirming the cogency and credibility of the evidence of the prosecution witnesses. Therefore, even if the lower Court wrongly classified it as a confessional statement, it is of no moment.

Counsel to the Appellant also referred to some lapses which he said existed in the case presented by the Respondent, such as the rejection of the list of participants sought to be tendered in respect of Count One, failure to tender the statements of accounts of the Akure North Local Government Council, failure to show that the workshop in respect of count two was notshifted from Hamdala Hotel to another hotel, failure to tender the Register of events that took place at Abuja Sheraton Hotel and Towers on the relevant dates in respect of Count Four, etc. Counsel obviously forgot that burden of proof on the Respondent was not proof beyond the shadow of doubt and that an appeal is an invitation to a higher Court to review the decision of a lower Court in order to find out whether, on proper consideration of the facts placed before it and the applicable law, the lower Court arrived at the right decision – Oba Vs Egberongbe (1999) 8 NWLR (Pt 685) 485, Nigerian Navy Vs Labinjo (2012) 17 NWLR (Pt 1328) 56,Ombugadu Vs Congress for Progressive Change (2013) 3 NWLR (Pt 1340) 31.
Thus, the duty of the appellate Court is to consider the correctness or otherwise of the decision of a lower Court on the basis of the facts presented before it, and not on the basis of facts not presented before it – Tilley Gyado& Co (Nig) Ltd Vs Access Bank Plc (2019) 6 NWLR (Pt. 1669) 399. In Odeleye Vs Orelusi (1991) 7 NWLR 247 at 256F to 257F, the Court made the point thus:
“The trial Court usually comes to a decisionon the totality of evidence led on both sides and when an appeal is brought before an appeal Court, the Court of Appeal is always to determine whether the trial Court came to the right decision on the evidence placed before the lower Court and whether it had applied the law on the evidence correctly. It will not be normally correct for the appeal Court to determine an appeal on the basis of the evidence which was not placed before the trial Court and which cannot be said to have been considered. In other words, it would be absurd to determine an appeal on evidence partly adduced at the trial Court and other evidence adduced at the Court of Appeal – that would not be a just disposal of the case. …”

It is apparent from the records of appeal that the Respondent led sufficient, credible, cogent and unequivocal evidence to prove counts one to five on the charge against the Appellant beyond reasonable doubt and the finding of the lower Court thereon was correct. The Appellant has not given this Court any reason to tamper with the conclusion reached by the lower Court.

In conclusion therefore, this Court finds no merit in the appeal and it ishereby dismissed. The judgment of the High Court of Ondo State delivered in Suit No. AK/32C/2006 by Honorable Justice T. O. Osoba on the 9th of May, 2016, together with the conviction of and the sentenced passed on the Appellant, is affirmed. These shall be the orders of the Court.

AYOBODE OLUJIMI LOKULO-SODIPE, J.C.A.: I have had the privilege of reading in draft the leading judgment prepared by my learned brother, HABEEB ADEWALE O. ABIRU, JCA in this appeal.

Two issues were formulated for the determination of the appeal by the Appellant. The Respondent adopted the said two issues. My learned brother in dismissing the instant appeal, has meticulously dealt with the two issues (which were duly set out in the leading judgment) and I agree with the reasoning of His Lordship in respect of the issues as well as the conclusions reached by him on the said issues. There is nothing new that I can add to the leading judgment by way of contribution.

Accordingly, I too find the appeal to be lacking in merit. It is hereby dismissed by me. The judgment of the lower Court delivered in Suit No. AK/32C/2006 on 9/5/2016, together with the conviction andsentence passed on the Appellant is upheld.

YUSUF ALHAJI BASHIR, J.C.A.: My most learned brother, HABEEB ADEWALE O. ABIRU obliged me a copy of the lead judgment in this appeal, in which his Lordship had admirably addressed all the issues raised in the appeal to the extent I do not have anything useful to add.

I therefore agree entirely with his reasoning and conclusion that there is no merit in the appeal. I also dismiss same and affirm the judgment of the Ondo State High Court in Suit No AK/32C/2006 delivered on 9th day of May, 2016, together with the conviction and sentence passed on the Appellant.

Appearances:

Chief I. A. Adedipe, SAN, and Chief F. O. Omotosho, SAN, with him O. A. Adefusi-Owate, A. S. Pelemo, T. A. Adurota and O. A. Adegoroye For Appellant(s)

…For Respondent(s)

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