FRANCIS v. THE STATE OF LAGOS
(2020)LCN/14302(CA)
In The Court Of Appeal
(LAGOS JUDICIAL DIVISION)
On Thursday, June 25, 2020
CA/L/1324C/2017
Before Our Lordships:
Mohammed Lawal Garba Justice of the Court of Appeal
Obande Festus Ogbuinya Justice of the Court of Appeal
Jamilu Yammama Tukur Justice of the Court of Appeal
Between
MARY FRANCIS APPELANT(S)
And
THE STATE OF LAGOS RESPONDENT(S)
RATIO
WHETHER OR NOT AN ACTION CAN BE COMMENCED BY OR AGAINST ANY PARTY EXCEPT A NATURAL PERSON
No action can be commenced by or against any party except a natural person(s) save such a party has been accorded by a statute, expressly or impliedly, or by common, either a legal personality under the name by which it sues or is sued or right to sue or be sued by that name. Where either of the parties is not a legal person, capable of exercising legal rights and obligations in law, the action is plagued by incompetence and liable to be struck out on account of want of legal personality, see Agbonmagbe Bank Ltd. v. General Manager G.B. Olivant Ltd. (1961) 2 SCNLR 317; Kate Ent. Ltd. v. Daewoo Nig. Ltd. (1985) 2 NWLR (Pt. 5) 116; Fawehinmi v. NBA (No. 2) (1989) 2 NWLR (Pt.105) 558; Ataguba & Co. v. Gura (Nig) Ltd. (2005) 8 NWLR (Pt. 927) 429; A. –G., Anambra State v. A. –G., Fed (2007) 12 NWLR (Pt. 1047) 4; Admin./Exec., Estate, Abacha v. Eke-Spiff (2009) 7 NWLR (Pt. 1139) 97; SLB Consortium Ltd. v. NNPC (2011) 9 NWLR (Pt. 1252) 317; M.M.A. Inc. v N.M.A. (2012) 18 NWLR (Pt. 1333) 506; Uwazuruonye v. Gov., Imo State (2013) 8 NWLR (Pt. 1355) 28; BB. Apugo& Sons Ltd. v. O.H.M.B. (2016) 13 NWLR (Pt. 1529) 206; Interdrill (Nig) Ltd v. U.B.A. Plc (2017) 13 NWLR (Pt. 1581) 52; Dairo v. Regd. Trustees, T. A. O.., Lagos (2018) 1 NWLR (Pt. 1599) 62; Bajehson v. Otiko (2018) 14 NWLR (Pt. 1638) 138; Socio-Political Research Dev. v. Min., FCT (2019) 1 NWLR (Pt. 1653) 313; Moses v. NBA (2019) 8 NWLR (Pt. 1673) 59; Persons, Name Unknown v. Sahris Int’l Ltd. (2019) 13 NWLR (Pt. 1689) 203. PER OGBUINYA, J.C.A.
WHETHER OR NOT THE COURT IS MANDATED TO ACCORD ITS ORDINARY GRAMMATICAL MEANING WITHOUT ANY EMBELLISHMENTS
To this end, the law mandates the Court to accord it its ordinary grammatical meaning without any embellishments, see FRN v. Osahon (2005) 5 NWLR (Pt. 973) 361; Nigerian Army v. Aminu – Kano (2010) 5 NWLR (Pt. 1188) 429; Agbiti v. Nigerian Navy (2011) 14 NWLR (Pt. 1236) 175; Nyame v. FRN (2010) 7 NWLR (Pt. 1193) 344; Amoshima v. State (2011) 14 NWLR (Pt. 1268) 530; FRN v. Mohammed (2014) 9 NWLR (Pt. 1413) 551; Martins v. COP (2013) 4 NWLR (Pt. 1343) 25; Dahuru v. State (2018) 14 NWLR (Pt. 1640) 567; Komolafe v. FRN (2018) 15 NWLR (Pt. 1643) 507; Babade v. FRN (2019) 1 NWLR (Pt. 1652) 100; Mamudu v. State (2019) 5 NWLR (Pt. 1664) 128. I will use this literal rule as the yardstick for the interpretation of the provision.
It is settled, beyond any per adventure of doubt, that one of the critical ways to acquire juridical personality is through statutory acceptance and recognition. A statute bestows a legal personality on a party thus: (a) under the name by which it may sue or be sued or (b) a right to sue or be sued by that name, see Lion of Africa Insurance Co. Ltd. v. Esan (1999) 8 NWLR (Pt. 614) 197; Carlen (Nig.) Ltd. v. University of Jos (1994) 1 NWLR (Pt. 323) 631; Socio-Political Research Dev. v. Min., FCT. (supra). It is axiomatic, that once penal legislation assigns/endows an institution or body with the power to institute criminal proceedings against any person before any Court of law, it gains a juristic personality to prosecute: “to commence and carry out legal action; to institute and pursue criminal action against a person”, see Ehindero v. FRN (supra) at 323, per Eko, JSC. Indeed, “all agencies charged with prosecutorial powers are qualified to initiate criminal charges in court” see Ezekiel v. A.-G., Fed (2017) 12 NWLR (Pt. 1578) 1 at 17, per Nweze, JSC; Nyame v. FRN (2010) 7 NWLR (Pt. 1193) 344; Dariye v. FRN (2015) 10 NWLR (Pt. 1467) 325; Ehindero v. FRN (2018) 5 NWLR (Pt. 1612) 201; Shema v. FRN (2018) 9 NWLR (Pt. 1624) 337; State v. Matthew (2018) 9 NWLR (Pt.1625) 399; Olagunju v. FRN (2018) 10 NWLR (Pt. 1627) 272; Alao v. FRN (2018) 10 NWLR (Pt. 1627) 284; Nweze v. FRN (2019) 10 NWLR (Pt. 1679) 51. PER OGBUINYA, J.C.A.
WHETHER OR NOT THE APPELLATE COURT CAN INTERFERE WITH THE FINDINGS OF THE TRIAL COURT
Where a trial Court has justifiably performed this primary duty, an appellate Court does not form the habit of imposing and/or substituting its views for its own save in exceptional circumstances: where the findings are against the drift of evidence, perverse and smells of miscarriage of justice, see Idoko v. State (2018) 6 NWLR (Pt. 1614) 117; Ikpa v. State (2018) 4 NWLR (Pt. 1609) 175; Enukora v. FRN (2018) 6 NWLR (Pt. 1615) 355; Sunday v. State (2018) 1 NWLR (Pt. 1600) 251; Ewugba v. State (2018) 7 NWLR (Pt. 1618) 262; Kamila v. State (2018) 8 NWLR (Pt. 1621) 252; Abbas v. The People of Lagos State (2019) 16 NWLR (Pt. 1698) 213.
Interestingly, the law, in order to repel injustice, donates concurrent jurisdiction to this Court and the lower Court on evaluation of documentary evidence, see Ezeuko v. State (2016) 6 NWLR (Pt. 1509) 529; FRN v. Sanni (2014) 16 NWLR (Pt. 1433) 299; Atoyebi v. FRN (2018) 5 NWLR (Pt. 1612) 350. I will reap from this coextensive jurisdiction in the appraisal of the galaxy of documentary evidence in this appeal. PER OGBUINYA, J.C.A.
WAYS OF ESTABLISHING INGREDIENTS OF AN OFFENCE
Nota bene, the law gives the prosecution three avenues/means to prove ingredients of an offence. They are through: a confessional statement or circumstantial evidence; or evidence of eye witnesses, see Igri v. State (2012) 16 NWLR (Pt. 1327) 522; Oguno v. State (2013) 15 (Pt. 1376) 1; Ibrahim v. State (2014) 3 NWLR (Pt. 1394) 305; Ogedengbe v. State (2014) 12 NWLR (Pt. 1421) 338; Umar v. State 13 NWLR (Pt. 1425) 497; Itu v. State (2016) 5 NWLR (Pt. 1505) 443; Ude v. State (2016) 14 NWLR (Pt. 1531) 122; Okashetu v. State (2016) 15 NWLR (Pt. 1534) 126; Igbikis v. State (2017)11 NWLR Pt. 1575) 126; State v. Ibrahim (2019) 8 NWLR (Pt. 1674) 294; Itodo v. State (2020) 1 NWLR (Pt. 1704) 1; Iorapuu v. State (2020) 1 NWLR (Pt. 1706) 391.PER OGBUINYA, J.C.A.
OBANDE FESTUS OGBUINYA, J.C.A. (Delivering the Leading Judgment): This appeal interrogates the correctness of the decision of the High Court of Lagos State, holden at Ikeja (hereinafter addressed as “the lower Court”), coram judice: Atinuke Ipaye, J., in suit No. ID/741C/2014, delivered on 11th May, 2017. Before the lower Court, the appellant and the respondent were the defendant and prosecution/complainant respectively.
The facts of the case, which transformed into the appeal, are amenable to brevity and simplicity. On 4th January, 2014, one Mrs. Jane Ashimi of Plot 76 Block 50, Sen. Akin Olasunkanmi Street, Magodo Estate, Lagos, was allegedly robbed by two suspects, Igwe Ogana Matthew and T.J. John, about 6.30 pm. The appellant and one Anayo Olufule were domestic staff, cook and driver respectively, of the robbery victim; Mrs. Jane Ashimi. The victim lodged a report of the robbery incident at Magodo Police Station that same day. The officers of Magodo Police Station investigated the case which investigation the victim was not satisfied with its outcome. Sequel to that, she petitioned to the Criminal Investigation Division
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(CID) of the Nigeria Police Force, Panti, Yaba, Lagos State, to reinvestigate the case. After due investigation, the appellant, with another at large, was arraigned before the lower court, on a 2-count amended charge, for the offences of conspiracy to commit robbery and armed robbery contrary to the provisions of Section 297 and 295 (2) (a) of Criminal Law of Lagos State, 2011(CLLS) respectively. The appellant pleaded not guilty to these offences.
Following the plea of not guilty, the lower Court had a full-scale determination of the case. In proof of the case, the respondent fielded one witness, PW1, who tendered tons of exhibits. In defence/disproof of the case, the appellant testified as witness, DW1, and called another witness, DW2. At the closure of evidence, the parties, through counsel, addressed the lower Court in the manner required by law. In a considered judgment, delivered on 11th May, 2017, found at pages 115-134 of the record, the lower Court convicted the appellant on the Court of conspiracy and sentenced her to 21 years imprisonment.
The appellant was dissatisfied with the decision. Hence, on 9th August, 2017, the appellant lodged a
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5 – ground notice of appeal, copied at pages 138-149 of the record, wherein he prayed this Court for: “An order setting aside the judgment of the trial Court and quashing the defendant’s conviction”. Thereafter, the parties, through their counsel, filed and exchanged their respective briefs of argument in line with the procedure regulating the hearing of criminal appeals in this Court. The appeal was heard on 27th May, 2020.
During its hearing, learned appellant’s counsel, A. Anibaba, Esq., adopted the amended appellant’s brief of argument, filed on 11th October, 2019 but deemed properly filed on 27th May, 2020, as representing his arguments for the appeal. He urged the Court to allow it. Similarly, learned counsel for the respondent, Dr. Babajide Martins, adopted the respondent brief of argument, filed on 29th October, 2019, as forming his reactions against the appeal. He urged the Court to dismiss it.
In the appellant’s amended brief of argument, learned counsel distilled, in a scattered form therein, five issues for determination to wit:
1. Whether the prosecutor of the charge against the
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appellant- “The State of Lagos” is a juristic entity known to law and capable of prosecuting the charge against the Appellant at the lower Court?
2. Whether the Court below was right to conclude that the extra judicial statements which the accused denies being its maker are “retracted and voluntary” confessional statements without making a finding as to whether the statements were indeed made by the accused.
3. Whether the learned trial judge was right in relying on the testimony and documents tendered by the investigating police officer (PW1) as corroborative evidence against the accused and whether such evidence amounts to hearsay?
4. Whether the accused can be solely charged and convicted for conspiracy in the absence of her accomplice and co-accused being charged or prosecuted for the same offence?
5. Whether the Learned Trial Judge was right to convict and sentence the Appellant pursuant to Section 297 of the Criminal Law of Lagos State 2011?
Admirably, learned respondent’s counsel adopted the issues crafted by the learned appellant’s counsel.
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Arguments on the issues:
Issue one
Learned counsel for the appellant submitted that the respondent is not a juristic entity because it is not created by statute or the Constitution and lacked the power to prosecute the appellant. He relied on Fawehinmi v. NBA (No.2) (1989) 2 NWLR (Pt. 105) 558. He posited that Section 249 of the Lagos State Administration of Criminal Justice (Repeal and Re-enactment) Law, 2011(ACJL) did not establish the respondent as to confer prosecutorial powers on it. He asserted that the trial was a nullity and should be quashed. He cited Kanmi Ajibola v. Governor of Osun State (unreported) Suit No. HIL/M47/2016 delivered by High Court of Osun State.
For the respondent, learned counsel contended that Section 249 of the ACJL did not oust the jurisdiction of the lower Court to try the appellant. He noted that the provision, enacted by the Lagos State House of Assembly, is constitutional because it is for the peace, order and good government of the State. He cited Section 4(7) of the Constitution, as amended, from which the respondent derived its statutory functions. He stated that an enactment could create anybody or group or inanimate object as a juristic person
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that could sue or be sued. He referred to Onyuike v. The people of Lagos State (2013) LPELR-24809 (CA). He maintained that the appellant was not misled nor suffered any miscarriage of justice. He cited Okpa v. State (2017) 15 NWLR (Pt. 1587) 1; Enweremadu v. State (2017) LPELR-42488 (CA); Section 159 of the ACJL, 2011.
Issue two
Learned appellant’s counsel submitted that the lower Court failed to make a finding as to whether or not the appellant made the three confessional statements as required by law. He relied on Ogunye v. State (1995) 5 NWLR (Pt. 548) 570; Okonkwo v. State (1998) 4 NWLR (Pt. 544) 142. He insisted that the failure caused a miscarriage of justice to the appellant and unsafe to convict him. He added that the appellant’s statement of 26th January, 2013 was wrongly admitted through PW1 who was not the recorder and deprived the appellant the right to cross-examine him on it. He described the statement as hearsay. He citedSaidu v. State (1982) 13 NSCC; Sam v. State (1991) 2 NWLR (Pt. 176) 699.
On behalf of the respondent, learned counsel argued that the lower Court rightly conducted trial-within-trial when the
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appellant objected to the voluntariness of the statements. He cited Olaoye v. State (2018) LPELR-43601 (SC). He noted that the lower Court tested the confessions with other evidence as required by law. He referred to Taiye v. State (2018) LPELR-55566 (SC); Osuagwu v. State (2013) 1-2 SC (Pt. 1) 37; Musa v. State (2013) 2-3 (Pt. 4) 75. He observed that the PW1’s team investigated the case and the statement rightly tendered by him. He said that the appellant failed to prove the torture. He cited Oladipupo v. State (2012) LPELR-7965 (CA); Onuoha v. State (1989) 2 NWLR (Pt. 101) 23.
Issue three
Learned appellant’s counsel submitted that the evidence of PW1 was based on statement of persons not called as witnesses and not on his investigative findings. He reasoned that the lower Court wrongly accepted the statements of the victim, which was hearsay, as corroborative evidence against the appellant. He relied on Ekpo v. State (2001) 7 NWLR (Pt. 712) 292; Ikara v. State (2014) 1 NWLR (Pt. 1389) 639. He stated that the best evidence is that of a victim. He citedUtteh v. State (1992) 2 LRCN. He pointed out that the lower Court erred in the
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evaluation of evaluation when it relied on circumstantial evidence that was not cogent and compelling. He referred to Atano v. A-G, Bendel (1998) 2 NWLR (Pt. 75) 201. He explained that the stolen items recovered from Igwe Ogana Mathew were not identified as those stolen from the victim. He claimed that the evidence of PW1 conflicted with the appellant’s on what led to Igwe Ogana Mathew’s arrest and his confessional statements on the involvement of Anayo Olufule.
On the side of the respondent, learned counsel argued, per contra, that the evidence of PW1, the Investigating Police officer (IPO) was not hearsay because it was based on his investigation and outcome of it. He relied on Olaoye v. State (2018) LPELR-43701 (SC); Arogundade v. State (2009) All FWLR (Pt. 469) 423. He insisted that Exhibits 6(a)-(c), the appellant’s statements, and the testimony of PW1 were admissible; the latter under Section 83 (1) (a) (ii) of the Evidence Act, 2011.
Issue four
Learned appellant’s counsel submitted that the lower Court was wrong to rely on the statement of Igwe Ogana Mathew to convict her for conspiracy when she was not charged
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with another person. He cited Ogugu v. State (1990) 2 NWLR (Pt. 134) 539; Adaoha Ugo-Ngadi v. FRN (2018) LPELR-43636 (CA). He described the conviction as a miscarriage of justice.
On the part of the respondent, learned counsel enumerated the ingredients of conspiracy as noted in Kaza v. State (2008) 2 NCC 374. He stated that the appellant was charged and acted in concert with others at large. He said that a Court could infer conspiracy as actual agreement would not be easy. He cited Yakubu v. State (2014) LPELR-22401 (SC); Usufu v. State (2007) 3 NWLR (Pt. 1020) 94. He reasoned that subsequent act could served as proof for conspiracy. He referred to State v. Yusuf (2006) LPELR-11802 (CA). He noted that conspiracy could be deduced from evidence of PW1 and Exhibits 6 (a)-(c). He asserted that an appellate would not interfere findings that were not perverse. He referred toOmisade v. State (1976) 11 SC 75. He claimed that the respondent’s evidence was not controverted and the lower Court was bound to take it. He relied on Adamu v. Akukalia (2005) 1 NWLR (Pt. 936) 263. He posited that a single witness could prove a crime. He cited Igbo v. State (1975)
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9-11 SC 129; Onafowokan v. State (1987) 3 NWLR (Pt. 61) 538. He took the view that proof beyond reasonable doubt is not beyond shadow of doubt. He cited Audu v. State (2003) (sic) (Pt. 820) 516.
Issue five
Learned appellant’s counsel submitted that the appellant was wrongly charged under Section 197 of the CLLS. He reasoned that the proper section is Section 299 of the CLLS which has the same punishment for robbery. He persisted that the failure to charge the appellant under Section 299 of the CLLS caused a miscarriage of justice and rendered the trial a nullity.
For the respondent, learned counsel contended that the proper section for conspiracy is 297 and not 299 of the CLLS. He postulated that the proper time to object to a charge is at the time of plea and not during trial or on appeal. He cited Madu v. State (1997) 1 NWLR (Pt. 482) 386.
Resolution of the issues.
In an abiding loyalty to the injunction of the law, I will settle issue one first. The reason is simple. It orbits around the four walls of jurisdiction which is numero uno in adjudication. Jurisdiction is the authority of a Court to determine any dispute tabled
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before it by contending parties, see Dariye v. FRN (2015) 10 NWLR (Pt. 1467) 325; Mba v. State (2014) 10 NWLR (Pt. 1415) 316. The law compels a Court to treat first an issue of jurisdiction where it germinates in any proceeding. I will pay due obeisance to this legal commandment in order not to insult the law.
The kernel of the issue one, though seemingly knotty, is canalised within a narrow compass. It seeks to indict and puncture the juristic personality of the respondent, “The State of Lagos”, to prosecute the charge against the appellant. It is a subtle invitation to comb the authorities for the purport and features of a juristic entity.
By way of prefatory observations, a juristic person is an entity armed with the capacity to ventilate his/its complaints in judicio. Generally, it is only natural persons, id est, human beings and artificial persons, such as body corporate/corporation, an artificial being which is invisible, intangible and exist only in the contemplation of the law, that are imbued with the capacity to sue and be sued in law Court. The jural units, which the law has cloaked with the garment of legal personality, are:
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human beings, incorporated companies, corporate sole with perpetual succession, trade unions, partnerships and friendly societies. No action can be commenced by or against any party except a natural person(s) save such a party has been accorded by a statute, expressly or impliedly, or by common, either a legal personality under the name by which it sues or is sued or right to sue or be sued by that name. Where either of the parties is not a legal person, capable of exercising legal rights and obligations in law, the action is plagued by incompetence and liable to be struck out on account of want of legal personality, see Agbonmagbe Bank Ltd. v. General Manager G.B. Olivant Ltd. (1961) 2 SCNLR 317; Kate Ent. Ltd. v. Daewoo Nig. Ltd. (1985) 2 NWLR (Pt. 5) 116; Fawehinmi v. NBA (No. 2) (1989) 2 NWLR (Pt.105) 558; Ataguba & Co. v. Gura (Nig) Ltd. (2005) 8 NWLR (Pt. 927) 429; A. –G., Anambra State v. A. –G., Fed (2007) 12 NWLR (Pt. 1047) 4; Admin./Exec., Estate, Abacha v. Eke-Spiff (2009) 7 NWLR (Pt. 1139) 97; SLB Consortium Ltd. v. NNPC (2011) 9 NWLR (Pt. 1252) 317; M.M.A. Inc. v N.M.A. (2012) 18 NWLR (Pt. 1333) 506; Uwazuruonye v. Gov., Imo State
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(2013) 8 NWLR (Pt. 1355) 28; BB. Apugo& Sons Ltd. v. O.H.M.B. (2016) 13 NWLR (Pt. 1529) 206; Interdrill (Nig) Ltd v. U.B.A. Plc (2017) 13 NWLR (Pt. 1581) 52; Dairo v. Regd. Trustees, T. A. O.., Lagos (2018) 1 NWLR (Pt. 1599) 62; Bajehson v. Otiko (2018) 14 NWLR (Pt. 1638) 138; Socio-Political Research Dev. v. Min., FCT (2019) 1 NWLR (Pt. 1653) 313; Moses v. NBA (2019) 8 NWLR (Pt. 1673) 59; Persons, Name Unknown v. Sahris Int’l Ltd. (2019) 13 NWLR (Pt. 1689) 203.
Now, the gravamen of the appellant’s chief grievance is that the respondent is not a creation of statute or the Constitution. The complaint is pegged on the provision of Section 249 of the Administration of Criminal Justice (Repeal and Re-enactment) Law, Cap A3, 2011 (ACJL). Due to its kingly position on the issue, it is imperative to pluck it out, whence it is domiciled in the statute book, ipsissima verba, as follows:
“249. Prosecutorial authority:
Prosecutorial authority shall be exercised in the High Court in the name of “The State of Lagos.”
This provision is submissive to easy appreciation. To this end, the law mandates the Court to accord it its
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ordinary grammatical meaning without any embellishments, see FRN v. Osahon (2005) 5 NWLR (Pt. 973) 361; Nigerian Army v. Aminu – Kano (2010) 5 NWLR (Pt. 1188) 429; Agbiti v. Nigerian Navy (2011) 14 NWLR (Pt. 1236) 175; Nyame v. FRN (2010) 7 NWLR (Pt. 1193) 344; Amoshima v. State (2011) 14 NWLR (Pt. 1268) 530; FRN v. Mohammed (2014) 9 NWLR (Pt. 1413) 551; Martins v. COP (2013) 4 NWLR (Pt. 1343) 25; Dahuru v. State (2018) 14 NWLR (Pt. 1640) 567; Komolafe v. FRN (2018) 15 NWLR (Pt. 1643) 507; Babade v. FRN (2019) 1 NWLR (Pt. 1652) 100; Mamudu v. State (2019) 5 NWLR (Pt. 1664) 128. I will use this literal rule as the yardstick for the interpretation of the provision.
It is settled, beyond any per adventure of doubt, that one of the critical ways to acquire juridical personality is through statutory acceptance and recognition. A statute bestows a legal personality on a party thus: (a) under the name by which it may sue or be sued or (b) a right to sue or be sued by that name, see Lion of Africa Insurance Co. Ltd. v. Esan (1999) 8 NWLR (Pt. 614) 197; Carlen (Nig.) Ltd. v. University of Jos (1994) 1 NWLR (Pt. 323) 631; Socio-Political Research Dev. v. Min., FCT.
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(supra). It is axiomatic, that once penal legislation assigns/endows an institution or body with the power to institute criminal proceedings against any person before any Court of law, it gains a juristic personality to prosecute: “to commence and carry out legal action; to institute and pursue criminal action against a person”, see Ehindero v. FRN (supra) at 323, per Eko, JSC. Indeed, “all agencies charged with prosecutorial powers are qualified to initiate criminal charges in court” see Ezekiel v. A.-G., Fed (2017) 12 NWLR (Pt. 1578) 1 at 17, per Nweze, JSC; Nyame v. FRN (2010) 7 NWLR (Pt. 1193) 344; Dariye v. FRN (2015) 10 NWLR (Pt. 1467) 325; Ehindero v. FRN (2018) 5 NWLR (Pt. 1612) 201; Shema v. FRN (2018) 9 NWLR (Pt. 1624) 337; State v. Matthew (2018) 9 NWLR (Pt.1625) 399; Olagunju v. FRN (2018) 10 NWLR (Pt. 1627) 272; Alao v. FRN (2018) 10 NWLR (Pt. 1627) 284; Nweze v. FRN (2019) 10 NWLR (Pt. 1679) 51.
I have, in total obeisance to the expectation of the law, married the provision, sought to be creamed, and the inelastic positions of the law displayed above. The raison d’etre for the juxtaposition is plain.
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It is ascertain if the respondent is obedient to the law of juristic personality or rebellious to it. It is decipherable from the provision of Section 249 of the ACJL, which is in the heat of extermination, that the respondent is a creature of statute, id est, ACJL. In other words, the respondent, as a party, is not an orphan as it traces its paternity to the provision in that enactment. In order to concretise its birth and destigmatise it of amorphousness, Section 371 of the ACJL, its definition provision, explains State to mean “Lagos State”. The import of the provision of Section 249 of the ACJL, which is comprehension-friendly, is unequivocal and divorced from woolliness. It has stated, in an unmistakable term, that criminal proceedings shall be initiated in the name of the respondent, “The State of Lagos”. Put simply, the provision has invented the respondent and invested it with the right to sue or be sued, eo nomine, in criminal proceedings in Lagos State. It flows, that the provision has adorned the respondent with the enviable status of a legal persona vis a vis criminal prosecutions in Lagos State. On this score, it will be
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an affront to the law to label the respondent with badge of a non-juristic entity that is destitute of the capacity to initiate or respond to the criminal matter that parented the appeal. Contrariwise, I am compelled, on the footing of the provision supra, to crown the respondent with the toga of a juristic personality with all the attendant rights and liabilities appurtenant to it. In effect, I declare the respondent as a juristic entity which is suable or can sue, eo nomine, in the firmament of criminal proceedings in Lagos State.
This brief legal anatomy of juristic personality, with due reverence, exposes the poverty of the learned appellant’s seemingly salivating argument on the point. In essence, all the strictures, which the learned appellant’s counsel weaved and unleashed on the issue, in order to derobe the respondent of juristic personality, pale into insignificance. The lower Court did not, in the least, offend the law when it treated the respondent as a juristic entity. As a result, I will not hesitate to resolve issue one against the appellant and in favour of the respondent.
Having dispensed with issue one, I proceed to
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settle issues two, three and four which are, apparently, intertwined. The trio hunts and shares a common goal: to deflate the lower court’s findings on the evidence. In other words, they chastise the lower Court’s evaluation of evidence before it. Given the interwoven judicial relationship among them, I will, in order to conserve the scarce juridical time and space, fuse them and amalgamate their considerations.
To begin with, evaluation of evidence connotes the appraisal/assessment of evidence, both viva voce and documentary before a Court, and ascription of probative value to them which results in finding of facts. This primary evidentiary duty falls, squarely, within the exclusive preserve of a trial Court. It enjoys this prerogative in that it has the singular advantage, which cannot be recaptured by an Appellate Court, to watch the witnesses, form impression on their demeanour and valuate the credibility or otherwise of their evidence, see Okpa v. State (2017) 15 NWLR (Pt. 1587) 1; Kekong v. State (2017) 18 NWLR (Pt. 1596) 108; Ezeani v. FRN (2019) 12 NWLR (Pt. 1686) 221. An Appellate Court is stripped of the vires to interfere with
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a finding of a trial Court anchored on demeanour and credibility of witnesses, see Adebanjo v. State (2019) 12 NWLR (Pt. 1688) 121; Tope v. State (2019) 15 NWLR (Pt. 1695) 289. Where a trial Court has justifiably performed this primary duty, an appellate Court does not form the habit of imposing and/or substituting its views for its own save in exceptional circumstances: where the findings are against the drift of evidence, perverse and smells of miscarriage of justice, see Idoko v. State (2018) 6 NWLR (Pt. 1614) 117; Ikpa v. State (2018) 4 NWLR (Pt. 1609) 175; Enukora v. FRN (2018) 6 NWLR (Pt. 1615) 355; Sunday v. State (2018) 1 NWLR (Pt. 1600) 251; Ewugba v. State (2018) 7 NWLR (Pt. 1618) 262; Kamila v. State (2018) 8 NWLR (Pt. 1621) 252; Abbas v. The People of Lagos State (2019) 16 NWLR (Pt. 1698) 213.
Interestingly, the law, in order to repel injustice, donates concurrent jurisdiction to this Court and the lower Court on evaluation of documentary evidence, see Ezeuko v. State (2016) 6 NWLR (Pt. 1509) 529; FRN v. Sanni (2014) 16 NWLR (Pt. 1433) 299; Atoyebi v. FRN (2018) 5 NWLR (Pt. 1612) 350. I will reap from this coextensive jurisdiction in the
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appraisal of the galaxy of documentary evidence in this appeal.
One of the learned appellant’s counsel’s foremost grouses, indeed his trump card on the issues, appertains to the admissibility of Exhibit 6(b) – appellant’s confessional statement of 26th January, 2013. Learned counsel registered objection to its admission on the ground that it was tendered by PW1 who was not its recorder/maker. Incontestably, a document must be tendered by its maker or else it will be declared a documentary hearsay devoid of any probative value, see Buhari v. INEC (2008) 18 NWLR (Pt. 1120) 246; Nyesom v. Peterside (2016) 7 NWLR (Pt. 1512) 452; Ikpeazu v. Otti (2016) 8 NWLR (Pt. 1513) 38; Okereke v. Umahi (2016) 11 NWLR (Pt. 1524) 438.
Nevertheless, there is a rider to this principle of law which is, deeply, ingrained in criminal proceedings. It is a settled law, in criminal matters, that a co-police officer can tender a document recorded by another police officer when the reason for the absence of its recorder is explained to the Court, see Edoho v. State (2010) 14 NWLR (P. 1214) 651; John v. State (2011) 18 NWLR (Pt. 1278) 353; Ekpo v. State (2018)
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12 NWLR (Pt. 1634) 408.
I have, in due fidelity to the expectation of the law, visited the record, the bedrock of the appeal, especially at the residences of Exhibit 6(b) and viva voce testimony of PW1 which monoplise pages 18 and 19 and 38 – 44/74 – 78 of it respectively. It is shown in the twilight and bottom of Exhibit 6(b), at page 19 of the record, that one Cpl. Awor Ayibam endorsed it as the police recorder. In the evidence-in-chief of PW1, Sgt. Monday Abang, he listed the recorder, at page 41 of the record, as a member of the team of investigators of the offence. In other words, the recorder, being a teammate of PW1, fell within the perimeter of a co-police officer. I have scrutinised the PW1’s parol evidence, which is obedient to unambiguity, with a fine tooth comb. In the crucible/furnace of cross-examination, during the mini trial proceeding, PW1 responded that the statement was recorded in his presence. On this note, the lower Court did not run foul of the procedural law, in the province of admissibility of pre-trial statement of accused, when it admitted Exhibit 6(b) as a confessional statement of the appellant. This is more
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so when the viore dire proceeding, which mothered its admission, is not a subject of appeal before this Court. In effect, the law does not grant me the unbridled licence to ostracise Exhibit 6(b). I, per contra, retain it as a usable evidence in the appeal. The learned appellant’s sterling argument on this point is lame. It cannot fly.
Another grudge, nursed by the appellant, is that the lower Court relied on an inadmissible hearsay evidence. In our adjectival law, a witness is expected to testify on oath, or affirmation, on what he knows personally. Where a witness gives evidence on what another person told him about events, then it is not direct evidence which has acquired the nickname: hearsay or second hand evidence. In the view of the law, hearsay evidence can only be used to inform a Court about what a witness heard another say and not establish the truth of an event, see Section 37, 38 and 126 of the Evidence Act, 2011; Kasa v. State (1994) 5 NWLR (Pt. 344) 269; FRN v. Usman (2012) 8 NWLR (Pt. 1301) 141; Theophilus v. State (1996) 1 NWLR (Pt. 423) 139; Opara v. A. – G. Fed. (2017) 9 NWLR (Pt. 1569) 61; State v. Masiga (2018) 8 NWLR
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(Pt. 1622) 383; Simeon v. State (2018) 13 NWLR (Pt. 1635) 128; Saraki v. FRN (2018) 16 NWLR (Pt. 1646) 405; Idi v. State (2019) 15 NWLR (Pt. 1696) 448.
The appellant specifically erected his stance on the evidence of PW1 as hearsay and inadmissible in law. From the record, the spinal cord of every appeal, PW1 was the Investigating Police Officer (IPO) who arraigned the appellant in Court. In Anyasodor v. State (2018) 8 NWLR (Pt. 1620) 107 at 125 Sanusi, JSC, incisively, declared:
On the appellant’s counsel’s submission that the testimony of PW3 was hearsay, I am also at one with the lower Court’s conclusion that such testimony as given by the PW3 was not and cannot be described as hearsay evidence. To my mind, all that the PW3 (IPO) did was to give evidence on what he actually saw or had witnessed, or discovered in the course of his work as an investigator. His testimony on what the appellant told him was positive and direct which was narrated to him by the appellant and other witnesses he came into contract (sic) with in the course of his investigation of the case. Evidence of an IPO is never to be tagged as hearsay. This Court in a
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plethora of its decided authorities had adjudged such evidence as direct and positive evidence and therefore not hearsay evidence. See Arogundade v. The State (2009) All FWLR (Pt. 469) (SC) 423; (2009) 6 NWLR (Pt. 1136) 165.
See also Olaoye v. State (2018) 8 NWLR (Pt. 1621) 281. It stems from this magisterial pronouncement, that the law has totally divorced the evidence of an Investigating Police Officer (IPO) of a case from hearsay and coronated it with the cap of admissible evidence. These ex cathedra authorities, with due respect, wholly, castrate the appellant’s counsel’s elegant contention on the point. The contention is disabled in their presence. I therefore refuse the appellant’s request to expel the evidence of PW1 on the ground of hearsay. Contrariwise, I welcome the evidence as usable evidence in the appeal.
My noble Lords, at this juncture, it is important to observe that the appellant was convicted of conspiracy to commit armed robbery. Conspiracy is a confederacy, or an agreement between at least two persons with the aim of committing unlawful or criminal act or doing a lawful act by an illegitimate means.
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Being an agreement, express or implied, it takes at least two persons to conspire, id est, one person cannot be guilty of conspiracy. The actual agreement by the conspirators, owing to the fact that it is, invariably, shrouded in secrecy, constitutes the offence without any necessity to prove that the criminal act has been committed. Due to its usual clandestine nature, it is not always proven by direct evidence, but by circumstantial and inferential evidence deducible from the proved acts of the conspirators in evidence. Such circumstantial evidence, often as good as direct evidence, must be cogent, consistent and irresistibly point to the guilt of the conspirators. In other words, the offence can be committed by the action, inaction, conduct or concert of the conspirators. To secure a conviction against an accused person on a charge of conspiracy, it must be established, beyond reasonable doubt by the prosecution, that there is a meeting of the minds of the criminal actors with a joint or communal understanding and effort at committing a crime, see Ojo v. FRN (2009) ALL FWLR (Pt. 494) 161; Mohammed v. State (1991) 5 NWLR (Pt. 192) 438/(2007) ALL FWLR (Pt. 366)
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668; Clark v. State (1986) 4 NWLR (Pt. 35) 381; Oduneye v. State (2001) 1 SC (Pt.1) 6; Okeke v. State (1999) 2 NWLR (Pt. 590) 246; Oyakhire v. State (supra); Njovens v. The State (1973) 5 SC 17/(1973) 1 NMLR 331/(1975) LPELR – 2042 (SC); Obiakor v. State (2002) 10 NWLR (Pt. 776) 612; Kaza v. State (2008) 7 NWLR (Pt. 1085) 125; Abdullahi v. State (2008) 17 NWLR (Pt. 1115) 203; Omotola v. State (2009) 7 NWLR (pt. 1139) 148; Posu v. State (2011) 2 NWLR (Pt. 1234) 393; Shodiya v. State (2013) 14 NWLR (Pt. 1373) 147; Adoba v. State (2018) 12 NWLR (Pt. 1633) 236; Yahaya v. State (2018) 16 NWLR (Pt. 1644) 96; Saminu v. State (2019) 11 NWLR (Pt. 1683) 254.
The appellant made Exhibits 6(b) and 6(c) on 26th and 28th January, 2013 respectively. The lower Court admitted them as confessional statement after a trial-within-trial. Curiously, as already noted, the judgment of the lower Court, on the trial-within-trial, which colonises pages 62 – 69 of the record, is not subject of appeal. The corollary is obvious. The admission of the exhibits is not being challenged. Being the cynosure here, I will extract out the relevance portions of those exhibits.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
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In Exhibit 6(b), the appellant partly, volunteered:
About three days later still in that December 2012, they came back again and it this time that Anayo (driver) told me the purpose of their visit. He said those men want to rob my madam, but they will not kill her and that they will only collect money from her and that I will be given my own share of N150,000.00 only. And the promise was made by the robbers when they came for surveillance. I don’t know how much the robbers promise madam’s driver Anayo Alefule. The robbers also warned me not to implicate them if the police arrest me and that after the whole incident I should come for my share. Some of the discussions were done through phone calls.
In Exhibit 6(c), tucked away at pages 20 of the record, she stated, verbatim ac litteratim, thus:
I Mary Francis (f) wish to write this additional statement to add with the statement I wrote dated 25th and 26th January, 2013 and to state that one of the robbers who gave me his name as Igwe (m) is staying somewhere in Owode Ogun State. I no (sic) the Igwe’s house and he speaks Ogoja language very well. He is the person who gave me his
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phone number 08085859589, that I should call them on the line to collect my own share of the N150, 000.00 they promised to give me. I don’t know the actual amount they promised to give the driver Anayo (m) who brought them to the compound. I was afraid to tell my madam because they threatening (sic) to kill me if I tell my madam.
Nota bene, the law gives the prosecution three avenues/means to prove ingredients of an offence. They are through: a confessional statement or circumstantial evidence; or evidence of eye witnesses, see Igri v. State (2012) 16 NWLR (Pt. 1327) 522; Oguno v. State (2013) 15 (Pt. 1376) 1; Ibrahim v. State (2014) 3 NWLR (Pt. 1394) 305; Ogedengbe v. State (2014) 12 NWLR (Pt. 1421) 338; Umar v. State 13 NWLR (Pt. 1425) 497; Itu v. State (2016) 5 NWLR (Pt. 1505) 443; Ude v. State (2016) 14 NWLR (Pt. 1531) 122; Okashetu v. State (2016) 15 NWLR (Pt. 1534) 126; Igbikis v. State (2017)11 NWLR Pt. 1575) 126; State v. Ibrahim (2019) 8 NWLR (Pt. 1674) 294; Itodo v. State (2020) 1 NWLR (Pt. 1704) 1; Iorapuu v. State (2020) 1 NWLR (Pt. 1706) 391.
I have situated the two Exhibits 6(b) and 6(c). In the first place, when those pre-trial
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statements, Exhibits 6(b) and 6(c) were admitted in evidence, even though the appellant was their owner, they deserted the defence and metamorphosed into the respondent’s case, see Egboghonome v. State (1993) 7 NWLR (Pt. 306) 385; Musa v. State (2013) 9 NWLR (Pt. 1359) 214; Ikumonihan v. State (2018) 14 NWLR (Pt. 1640) 456; Ayinde v. State (2018) 17 NWLR (Pt. 1647) 140; Ifedayo v. State (2019) 3 NWLR (Pt. 1659) 265; Mohammed v. State (2019) 6 NWLR (Pt. 1668) 203; State v. Ibrahim (supra); State v. Buhari (2019) 10 NWLR (Pt. 1681) 583; State v. Shonto (2019) 12 NWLR (Pt. 1686) 255; Edun v. FRN (supra). It flows from the evidential transfiguration/migration, that their contents became part and parcel of the respondent’s case. Remarkably, they amply disclose the appellant’s undiluted admission of the offence of conspiracy preferred against her.
According to Section 28 of the Evidence Act, 2011.
A confession is an admission made at anytime by a person charged with a crime stating or suggesting he inference that the committed that crime.
Once a confession is relevant, it is admissible against an accused who made it save it is
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excluded in the manner stipulated by the provision of the Section 29(2) of the Evidence Act, 2011. Unarguably, it is within the province of the law for a Court to solely base conviction on free, cogent and positive confession, see Sule v. State (2009) 17 NWLR (Pt. 1169) 33; Omogu v. FRN (2008) 9 NWLR (Pt. 1055) 381; Shalla v. State (2007) 18 NWLR (Pt. 1168) 240; Dibia v. State (2017) 12 NWLR (Pt. 1579) 196; Egharevba v. State (2016) 8 NWLR (Pt. 1515) 433; Oko v. State (2016) 10 NWLR (Pt. 1521) 455; Lawal v. State (2016) 14 NWLR (Pt. 1531) 67; Akinrinlola v. State (2016) 16 NWLR (Pt. 1537) 73; Awuobi v. State (2017) 2 NWLR (Pt. 1550) 421; Kolo v. COP (2017) 9 NWLR (Pt. 1569) 118; FRN v. Barminas (2017) 15 NWLR (Pt. 1588) 177; John v. State (2017) 16 NWLR (Pt. 1591) 304; Agagua v. State (2017) 10 NWLR (Pt. 1573) 254; Ajiboye v. FRN (2018) 13 NWLR (Pt. 1637) 430; Umar v. FRN (2019) 3 NWLR (Pt. 1660) 549; Iorapuu v. State (supra).
Indeed, the Olympian position of confession in criminal jurisprudence cannot be over-emphasised. Under our procedural law, confession has been classified as the best and strongest evidence, stronger than that of an eye witness, see
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Smart v. State (2016) 9 NWLR (Pt. 1518) 447; Asuquo v. State (2016) 14 NWLR (Pt. 532) 309; Dibia v. State (2017) 12 NWLR (Pt. 1579) 196; FRN v. Barminas (2017) 15 NWLR (Pt. 1588) 177; Akpan v. State (2008) 14 NWLR (Pt. 1106) 72. By a confession, an accused surrenders himself to the law and becomes his own accuser, see Adeleke v. State (2013) 16 NWLR (Pt. 1381) 556. The appellant’s confessional statements, Exhibits 6(b) and 6(c), drown his right to presumption of innocence, which is enshrined in Section 36(5) of the 1999 Constitution, as amended, as well as make him the undoubted owner of the requisite mens rea and actus reus in relation to the offence of conspiracy preferred against her. Their contents are a classic evidence of pure admission. They clearly reveal that the conspiracy to commit the alleged armed robbery was midwifed and hatched by the appellant with Igwe Ogana Matthew, of the same Ogoja extraction with her, and one John, alias T.J., who is a fugitive from justice. They constitute blights on the appellant’s case of denial.
In the light of this expansive juridical survey, I find no justification in law to label the lower
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Court’s judicial exercise as one that smacked of miscarriage of justice: “A grossly unfair outcome in judicial proceedings as when a defendant is convicted despite lack of evidence on an essential elements of crime,” see Adeyemi v. State (2014) 13 NWLR (Pt. 1423) 132; Itu v. State (2016) 5 NWLR (Pt. 1506) 446; Gazzali v. State (2019) 4 NWLR (Pt. 1661) 98. The appellant was not smeared/inflicted with any negative incidents of miscarriage of justice. On this premise, the lower Court’s findings were not marooned in the murky ocean of miscarriage of justice to propel/stimulate the intervention of this Court. I therefore dishonour the learned appellant’s counsel’s enticing invitation to sacrifice the lower Court’s findings on the undeserved altar of improper and perfunctory evaluation of evidence for want of legal justification. In the end, I have no choice than to resolve the conflated issues two, three and four against the appellant and in favour of the respondent.
That brings me to the treatment of issue five. The meat of the issue falls within a slim scope. The focus of the appellant’s grouse is that he was
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charged under Section 297 instead of Section 299 of the ACJL. Put simply, that he was charged under a wrong Section of ACJL which vitiated the trial in his favour.
To start with, a charge denotes a formal accusation of an offence as a preliminary step to prosecution, see Idi v. State (2019) 15 NWLR (Pt. 1696) 448. The main purpose of a charge is give an accused person good, sufficient and clear notice of the case against him, see Olatunbosun v. State (2013) 17 NWLR (Pt. 1382) 167; Idi v. State (supra). It is trite law, that the appropriate time to object to any defects in charge/information is when it is being read and before plea. If an accused person delays or fails to register his opposition to a charge before plea is taken, the law deems him as having acquiesced in the irregularity and caught in the intractable vortex of waiver, see State v. Gwonto (1983) 1 SCNLR 142; Adekunle v. State (2006) 14 NWLR (Pt. 1000) 717; Attah v. State (2010) 10 NWLR (Pt. 1201) 190; Olatunbosun v. State (supra); Abidoye v. FRN (2014) 5 NWLR (Pt. 1399) 30; Ibrahim v. State (2015) 11 NWLR (Pt. 1469) 164; Baalo v. FRN (2016) 13 NWLR (Pt. 1530) 400; Amadi v. A.-G., Imo State
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(2017) 11 NWLR (Pt. 1575) 92; Okpa v. State (2017) 15 NWLR (Pt. 1587) 1; Oko v. State (2017) 17 NWLR (Pt.1593) 24; Eze v. FRN (2017) 15 NWLR (Pt. 1589) 433; Kolo v. COP (2017) 9 NWLR (Pt. 1569) 118; Destra Inv. Ltd. v. FRN (2018) 8 NWLR (Pt. 1621) 335; Ankpegher v. State (2018) 11 NWLR (Pt. 1630) 249; Mohammed v. FRN (2018) 13 NWLR (Pt.1636) 229; Mumini v. FRN (2018) 13 NWLR (Pt. 1637) 568; Lanre v. State (2019) 3 NWLR (Pt. 1660) 506; John v. State (2019) 9 NWLR (Pt. 1676) 160; Section 159 of the ACJL.
I have revisited the record, the touch stone of the appeal, particularly in the domain of the plea proceeding, held on 20th May, 2015, which is located/pasted at page 31 of the record. I have given a clinical examination to it. There is no grain/morsel of evidence that the appellant, or his learned counsel, greeted the charge with any objection before his plea of not guilty to the counts in the charge. The appellant, in the mind of the law, unduly, embraced indolence in his protestation to the irregularity in the charge. The appellant, in his infinite wisdom, relished in slumber over his right to dispute the contents of the charge. The appellant’s
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present demur to the charge is belated. It is too late in the day to resurrect any irregularity that was, deeply, buried in the bowel of waiver. The objection is enmeshed in the inescapable nest of waiver. The unwarranted tardiness constitutes a serious coup de grace on the appellant’s objection. The defect, if any, does not ruin the decision of the lower Court. In order to pacify the injunction of the law, I discountenance the objection as a transgression of the law.
In any event, the appellant’s quarrel is staked on the propriety of the section of the ACJL under which the charge ought to be brought. It is not that the offence of conspiracy is alien to the ACJL. The position of the law is that once the offence for which an appellant is convicted is known to law, the fact that he was charged under a wrong law, or section of a law, will not lead to a reversal of the decision and his acquittal, see Dokubo-Asari v. FRN (2007) 5 – 6 SC 150/(2007) 12 NWLR (Pt. 1048) 320; Mohammed v. State (2007) 7 NWLR (Pt. 1032) 152; Olatunbosun v. State (supra); Okpa v. State (supra); David v. C.O.P. (2019) 2 NWLR (Pt. 1655) 178. This inelastic position of
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the law, with due respect, demolishes the learned appellant’s counsel’s scintillating argument on the issue and renders it a footnote. It stems from this, that the miscarriage of justice, which the appellant brandished/paraded as being inflicted on him, is non-existent. In this wise, it will be a defilement of law to declare the trial a nullity on the basis of wrong section of law. I refuse to treat the law with an undeserved contempt. In the aggregate, I resolve the issue five against the appellant and in favour of the respondent.
On the whole, having resolved the five issues against the appellant, the destiny of the appeal is plain. It is devoid of any ray of merit and merits the penalty of dismissal. Consequently, I dismiss the appeal. I affirm the decision of the lower Court delivered on 11th May, 2017.
MOHAMMED LAWAL GARBA, J.C.A.: After reading a draft of the lead judgement written by my Learned Brother Obande Festus Ogbuinya, JCA in this appeal, I find that the views expressed on the issues submitted for decision by the Court as well as the conclusions reached thereon are the same with mine and so agree
36
that the appeal is wanting in merit for reasons set out therein.
The appeal is dismissed by me too in terms of the lead Judgment.
JAMILU YAMMAMA TUKUR, J.C.A.: I read in advance a draft copy of the judgment Just delivered by my learned brother OBANDE FESTUS OGBUINYA JCA and I adopt the judgment as mine with nothing further to add.
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Appearances:
Anibaba, Esq.For Appellant(s)
Dr. Babajide Martins, Director with him, Y.A. Sule, Esq. ACSC Ministry of Justice, Lagos StateFor Respondent(s)