IDAKWO v. FRN & ANOR (2021)

IDAKWO v. FRN & ANOR

(2021)LCN/15103(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Wednesday, March 03, 2021

CA/ABJ/CR/981/2020

Before Our Lordships:

Stephen Jonah Adah Justice of the Court of Appeal

Peter Olabisi Ige Justice of the Court of Appeal

Yargata Byenchit Nimpar Justice of the Court of Appeal

Elfrieda Oluwayemisi Williams-Dawodu Justice of the Court of Appeal

Ridwan Maiwada Abdullahi Justice of the Court of Appeal

Between

JOSEPH IDAKWO APPELANT(S)

And

1. FEDERAL REPUBLIC OF NIGERIA 2. ZAMTRAC MANAGEMENT AND CITY INVESTMENT LIMITED RESPONDENT(S)

RATIO

WHETHER FOUNDATION AS TO THE WHEREABOUT OF THE ORIGINAL DOCUMENT MUST BE LAID BEFORE A CERTIFIED TRUE COPY OF A PUBLIC DOCUMENT CAN BE ADMITTED IN EVIDENCE

In the case of Kawu v. Minister FCT & Ors. (2016) LPELR – 41142 (CA), this Court per Mustapha, JCA, put the position of the law clearly as follows: “It is desirable generally speaking to lay foundation before tendering a document as evidence, but this does not apply as a matter of necessity to a Certified True Copy of a public document the argument therefore that a foundation has to be laid before a Certified True Copy of a public document can be admitted in evidence in the considered opinion of this Court amounts to turning both law and logic on their heads, because once a public document is certified it is admissible; as a matter of fact a party can tender the Certified True Copy of a public document even though he was not a party to it; see MARANRO V. ADEBISI (2007) LPELR-4663-CA; and counsel may even do so from the Bar; see DAGGASH V. BULAMA (2004) 14 NWLR PT. 892 PG. 144 AT 187 and OKIKI II V. JAGUN (2000) 5 NWLR PT. 655 PG. 19 AT PG.27-28. The Certified True copy of a public document is indeed unlike any other document in this regard, there is no need for foundation to be laid before it is tendered and admitted in evidence, the plaintiff has an option as it is, to tender the Certified True Copy, even if he had the original right there with him. Nothing compels him to tender the original, it is simply a matter of choice or convenience, as the case may be: “Certified copies are by statute deemed to be originals. Where there is no certification the presumption of regularity will not be ascribed to it, so it ought to be certified in order that the Court is left with no alternative but to accept the authenticity of its contents.” Per Rhodes-Vivour, J.S.C in TABIK INVESTMENT LTD & ANR V. GTB PLC (2011) LPELR-3131-SC. PER STEPHEN JONAH ADAH, J.C.A.

WHO CAN TENDER A CERTIFIED TRUE COPY OF A DOCUMENT

POSITION OF THE LAW ON JUDICIAL DISCRETION

Let me say here that the fact remains certain that a Judge undoubtedly is in charge of every proceeding before him. It is however, his bounden duty to deploy as a sage his judicial power to do what is fair under the circumstances of the case and be guided by the rules and principles of law. He must be guided by the need to deploy prudence, rationality and sagacity in applying the law. Fabiyi, JSC, in the case of Ajuwa & Anor v. SPDC (Nig.) Ltd (2011) LPELR – 82434 (SC) while considering the nature of judicial discretion held: “Judicial discretion is a sacred power which inheres to a Judge. It is an armour which the Judge should employ judicially and judiciously to arrive at a just decision. Same should not be left to the whims and caprices of a party to the action. It is not in tandem with the dictates of public policy which demands, inter alia, that administration of justice shall be discharged without any form or prompting by the parties. Discretion had been defined to mean ‘a power or right’ conferred upon public functionaries by law of acting officially in certain circumstances according to the dictates of their own judgment and conscience, uncontrolled by the judgment or conscience of others. See: State v. Whitman R. 11, 431 A. 2d 1229, 1233; Black’s Law Dictionary, Sixth Edition Page 466”. PER STEPHEN JONAH ADAH, J.C.A.

STEPHEN JONAH ADAH, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the High Court of the Federal Capital Territory, Abuja, in Charge No. FCT/HC/CR/9/2019, delivered on the 22nd June, 2020 and 24th September, 2020, Coram: D.Z. Senchi, J. Wherein the trial Court rejected the admission in evidence of the certified true copy of the ruling of the Magistrate Court, Wuse II and also refuse to consider, and determine the Appellant’s Motion No. M/8687/2020.

The charge against the appellant was dated the 16th October, 2019 and filed on the 17th October, 2019.
The five count charges under which the appellant together with his co-accused were arraigned, are reproduced hereunder as follows:
Count 1:
That you, JOSEPH IDAKWO and ZAMTRAC MANAGEMENT AND CITY INVESTMENT LTD sometime in October, 2017 in Abuja within the jurisdiction of this Honorable Court entrusted with dominion over the landed property at plot 2398 A06 Cadastral Zone Maitama District, Abuja committed criminal breach of trust in respect of the said property when you sold part of the property to Suleiman Mohammed Chiroma in violation of Paragraph

3.2.6 of the Property Development Agreement made on 20th January, 2017 between Hajiya Halima Babangida and Zamtrac Management and City Investment Ltd and you thereby committed an offence contrary to and punishable under Section 312 of the Penal Code Law.
Count 2:
That you, JOSEPH IDAKWO sometime in October, 2017 in Abuja within the jurisdiction of this Honorable Court with intent to cause Suleiman Mohammed Chiroma to enter into contract with Zamtrac Management and City Investment Ltd for the sale of 1 unit of 4 Bedroom Luxury Terrace Duplex with Boys Quarters at 9 Yobe Close Maitama Abuja forged the signature of Aliyu Dasuki who is a director of Zamtrac Management and City Investment Ltd and purporting the signature to have been signed by Aliyu Dasuki and you thereby committed and offence contrary to Section 363 of the Penal Code Law and punishable under Section 364 of the same Law.
Count 3:
That you, JOSEPH IDAKWO sometime in October, 2017 in Abuja within the jurisdiction of this Honorable Court dishonestly used as a genuine a certain document titled: SALES AGREEMENT BETWEEN ZAMTRAC MANAGEMENT AND CITY INVESTMENT LTD AND SULEIMAN M.

CHIROMA which you knew to be a forged document and you thereby committed an offence punishable under Section 366 of the Penal Code Law.
Count 4:
That you, JOSEPH IDAKWO sometime in October, 2017 in Abuja within the jurisdiction of this Honorable Court with intent to cause Suleiman Mohammed Chiroma to enter into contract with Zamtrac Management and City Investment Ltd for the sale of 1 unit of 4 Bedroom Luxury Terrace Duplex with Boys Quarters at 9 Yobe Close Maitama Abuja forged the signature of Hajiya Halima Babangida and you thereby committed an offence contrary to Section 363 of the Penal Code Law and punishable under Section 364 of the same Law.
Count 5:
That you, JOSEPH IDAKWO sometime in October, 2017 in Abuja within the jurisdiction of this Honorable Court dishonestly used as genuine a certain document bearing the forged signature of Hajiya Halima Babangida and also signed by Suleiman M. Chiroma which document you knew to be forged and you thereby committed an offence punishable under Section 366 of the Penal Code Law.

The appellant together with his co-accused entered a not guilty plea when the charges were read to them. Thereafter, the matter went into full trial. In the course of the trial, the 1st Respondent amended its charge from five counts to six counts.

However, while cross examining PW1, the learned counsel for the appellant and 2nd Respondent sought to tender a Ruling of the Magistrate Court wherein the appellant was discharged and acquitted by the said Court following a No-Case Submission. Respondents counsel objected to the admissibility of the said Ruling and the same was upheld and the document was marked as Rejected.

Dissatisfied with the Ruling of the Trial Court, the appellant appealed to this Court vide a Three Ground Notice of Appeal filed on the 13th November, 2020. The record of Appeal was transmitted to this Court on the 16th November, 2020. On the 19th November, 2020 the appellant filed a motion seeking for an order to stay proceedings of the trial High Court, on the 3rd December, 2020 he filed a further affidavit in support of the Motion on Notice filed on the 19th November, 2020.

The parties filed and exchanged their respective briefs of argument. Counsel for the Appellant distilled three issues in the Appellants brief of Argument

dated and filed 16th November, 2020, thus:
1. Whether the trial High Court was right when it refused to admit in evidence, the Certified True Copy of the Ruling of the Magistrate Court, delivered on the 21st February, 2020, merely on the ground that PW1, who was led to identify the document under cross examination, was not the maker of the document? (Ground 1).
2. Whether in view of the clear and unambiguous provisions of Section 36(9) of the constitution of the Federal Republic of Nigeria, 1999 (as amended), and Section 238 of the Administration of Criminal Justice Act, 2015, the trial Court was right to have relied on Section 396 (2) of the Administration of Criminal Justice Act, 2015 to withhold Ruling on Motion No. M/8989/2020? (Ground 2).
3. Whether the continuation of trial in charge No. FCT/HC/CR/9/2019 by the trial High Court without delivering Ruling on Motion No. M/8989/2020, which Motion is a plea of autre fois acquit by the appellant, does not amount to double jeopardy against the appellant, contrary to the provisions of Section 36 (9) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), and Section 238 and 277 of the Administration of Criminal Justice Act, 2015? (Ground 3).

In response to the issues raised by the appellant, the 1st Respondent formulated two issues for the determination of this Appeal in his brief of Argument filed on the 4th December, 2020. I shall proceed to reproduce same. They are:
1. Whether the lower Court was not right in rejecting the admissibility of copy of the ruling of the Magistrate Court which was tendered for the purpose of cross examining a witness who was neither the maker of the document nor a party to the proceedings at the Magistrate’s Court. (Distilled from Ground 1 of the Notice of Appeal)
2. Whether the lower Court was not right in deferring ruling of the Appellant and 2nd Respondents motion on Notice seeking to dismiss the criminal charge against them to be considered at the time delivery of judgment in line with Section 396 (2) of the Administration of Criminal Justice Act, 2015.

In response to the issues raised by the appellant, the 2nd Respondent adopted the three issues as formulated by the appellant for the determination of this appeal.

I shall adopt the issues as submitted by the appellant in considering this appeal. I now start with issue one.
Issue One:
This issue is – whether the trial High Court was right when it refused to admit in evidence, the Certified True Copy of the Ruling of the Magistrate Court, delivered on the 21st February, 2020, merely on the ground that PW1, who was led to identify the document under cross-examination, was not the maker of the document?

Learned Counsel for the appellant while canvassing this issue submitted that the refusal to admit the Ruling of the Magistrate Court in evidence on the ground that PW1 is not the maker, runs contrary to the settled position of the law as pronounced upon by this Court and the apex Court, in a long line of judicial decisions. That it is now settled law that, admissibility of evidence as rightly found by the trial Court, is a matter of relevance and where there are requirements of law which must be satisfied for the evidence to be admissible, such requirements must also be satisfied. Counsel relied on State v. Nwaigene (2018) LPELR-43939; Ochuba v. Lagos State Agricultural Development Authority (2018) LPELR-45828 CA; Bruce v. Ere & Ors. (2003)

LPELR-72946 (CA); Yako & Anor v. Jibrin & Ors. (2019) LPELR-48971; Itanyi & Anor v. Bagudu & Ors. (2018) LPELR-46984.

Learned counsel for the appellant further submitted that if the trial Court had harkened to the judicial renditions of this Court and the apex Court, having found that the document sought to be tendered was certified, it would have admitted the document in evidence, notwithstanding the fact that PW1 is not the maker. This is more so my lords, when the document, being the Ruling of a Magistrate Court, qualifies as proceeding of a Court and it is a fact which the trial High Court was bound to take judicial notice of. Counsel relied on Section 122 (2) (M) of the Evidence Act, 2011; Salami v. Ajadi (2007) LPELR-8622.

In response, learned counsel for the 1st Respondent submitted that it is settled that evidence must be relevant before it is admissible. But a relevant evidence can nevertheless be excluded if it is inadmissible by operation of the law. Counsel relied on Kekong v. State (2017) 18 NWLR (Pt. 1598) P.108; Isheno v. Julius Berger (Nig.) Plc (2008) LPELR-1544 (SC); Section 223 of the Evidence Act.

Learned Counsel for the 1st Respondent further submitted that permitting such procedure of admitting a document for the purpose of cross examining a witness who knows next to nothing about the same is not only prejudicial but very unfair. The rules of evidence do not allow a party to spring surprise or adopt unfair procedure against the opponent. That the worst is that PW1 did not make any input as witness in the trial that resulted in the ruling of the Magistrate Court. It was not as if PW1’s testimony had previously been disbelieved as she neither testified in the proceeding at the Magistrate Court nor was she shown to have held a different opinion on the evidence adduced at that trial. At best, she was a stranger to that document. As a stranger, we submit the Ruling constitutes a hearsay evidence against her for the purpose of cross examination and it is patently inadmissible. Counsel relied on Section 38 of the Evidence Act 2011; Sections 14 and 15 Evidence Act 2011.

In response, the learned counsel for the 2nd Respondent submitted that it is not the intention of the 2nd Respondent to make a full blast argument on the issue for determination as formulated by

the appellant itemized above having not filed a Cross-Appeal against the judgment. However, the 2nd Respondent intends in his brief of argument to itemize all points raised in the Appellant’s Brief of Argument which it wishes to concede. Counsel relied on Order 19 Rule 4(2) of the Court of Appeal Rules, 2016; Alade v. Akande (1994) 5 NWLR (Pt. 345) Page 468 particularly at Page 480 Paras B-C. He further submitted that the Supreme Court of Nigeria had opportunity of pronouncing on the right of a Respondent to concede to points raised in the Appellants brief of argument. Counsel relied on I.H. Ltd. v. Soneb Ent. Ltd. (2010) 4 N.W.L.R. (PT. 1185) Page 51 particularly at Page 585.

In paragraph 4.4 of the 2nd Respondent’s Brief of Argument, the learned counsel for the 2nd Respondent submitted that it concedes to the points raised by the Appellant in respect of the Ruling of the Magistrate Court sought to be tendered through PW1 before the trial Court by the appellant ought not to have been rejected and so marked because same is a certified true copy of a public document which by the relevant statutory and judicial authorities cited in the Appellant’s Brief is admissible upon mere production of it before the trial Court and not necessarily by the maker.

Under our laws, particularly Section 102 of the Evidence Act, Public documents are listed. These are:
(a) documents forming the official acts or records of the official acts of –
(i) the sovereign authority,
(ii) official bodies and Tribunals, or
(iii) public officers, legislative, judicial and executive, whether of Nigeria or elsewhere; and
(b) public records kept in Nigeria of private documents.
Public documents are to be certified as required by the Evidence Act before they can be admitted in any proceeding. Sections 104 and 105 of the Evidence Act clearly state as follows:
104. (1) Every public officer having the custody of a public document which any person has a right to inspect shall give that person on demand a copy of it on payment of the legal fees prescribed in that respect, together with a certificate written at the foot of such copy that it is a true copy of such document or part of it as the case may be.
(2) The certificate mentioned in Subsection (1) of this Section shall be dated and subscribed

by such officer with his name and his official title, and shall be scaled, whenever such officer is authorized by law to make use of a seal and such copies so certified shall be called certified copies.
(3) An officer who by the ordinary course of official duty, is authorized to deliver such copies, shall be deemed to have the custody of such documents within the meaning of this section.
105. Copies of documents certified in accordance with Section 104 may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies.
The law makes it easy therefore, for a person who wants to tender in evidence a public document to so do upon the certification of the document. In the case of Kawu v. Minister FCT & Ors. (2016) LPELR – 41142 (CA), this Court per Mustapha, JCA, put the position of the law clearly as follows:
“It is desirable generally speaking to lay foundation before tendering a document as evidence, but this does not apply as a matter of necessity to a Certified True Copy of a public document the argument therefore that a foundation has to be laid before a Certified

True Copy of a public document can be admitted in evidence in the considered opinion of this Court amounts to turning both law and logic on their heads, because once a public document is certified it is admissible; as a matter of fact a party can tender the Certified True Copy of a public document even though he was not a party to it; see MARANRO V. ADEBISI (2007) LPELR-4663-CA; and counsel may even do so from the Bar; see DAGGASH V. BULAMA (2004) 14 NWLR PT. 892 PG. 144 AT 187 and OKIKI II V. JAGUN (2000) 5 NWLR PT. 655 PG. 19 AT PG.27-28. The Certified True copy of a public document is indeed unlike any other document in this regard, there is no need for foundation to be laid before it is tendered and admitted in evidence, the plaintiff has an option as it is, to tender the Certified True Copy, even if he had the original right there with him. Nothing compels him to tender the original, it is simply a matter of choice or convenience, as the case may be: “Certified copies are by statute deemed to be originals. Where there is no certification the presumption of regularity will not be ascribed to it, so it ought to be certified in order that the Court is left

with no alternative but to accept the authenticity of its contents.” Per Rhodes-Vivour, J.S.C in TABIK INVESTMENT LTD & ANR V. GTB PLC (2011) LPELR-3131-SC. In the circumstances, this Court cannot help but agree with learned counsel to the appellant that the requirement of laying foundation, which is the basis of the rejection of the document by the trial Court, does not apply to this case, because what was tendered for admission is a Certified True Copy of a public document. The trial Court was in the considered opinion of this Court, in error, to treat the secondary evidence of a public document as if it were the secondary evidence of a private document, see UKANA V. C.O.P (1995) 8 NWLR part 416 at 717. There is no known law requiring the laying of foundation to establish the whereabouts of the original of a public document before such document can be admitted in evidence, the trial Court was clearly in error to hold otherwise; accordingly, the sole issue for determination is accordingly resolved in favour of the appellant, against the respondents.”

It is therefore, well settled that any person who has a Certified True Copy of a document in his possession can tender it. The party may tender the document even though he was not a party to it. It is even trite law now that a counsel may tender a certified true copy of a document from the Bar. See the cases of: Anyakora v. Obiakor (1990) 2 NWLR Pt. 130 Pg. 52; Agagu v. Dawodu (1990) 7 All NLR 248; Okiki II v. Jagun (2000) 5 NWLR Pt. 655 Pg. 19 at 27 – 28, Paul Ordia v. Piedmont (1995) 2 SCNJ 175.
In the instant case, the lower Court rejected a Certified True Copy of the ruling of a Magistrate’s Court tendered in favour of the appellant. Since no one has raised any other issues with the validity of the certification, the lower Court misinterpreted the law by rejecting the document because the witness was not a party or the maker of the document. The Certified True Copy of the ruling of a Magistrate Court is a public document and can only be placed before the lower Court if it was duly certified. Since it is duly certified, the lower Court was in error for not admitting it in evidence. This issue is therefore, resolved in favour of the appellant.

Issues Two and Three:
These issues are – whether in view of the clear and unambiguous

provisions of Section 36(9) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), and Section 238 of the Administration of Criminal Justice Act, 2015, the trial Court was right to have relied on Section 396 (2) of the Administration of Criminal Justice Act, 2015 to withhold Ruling on Motion No. M/8989/2020; and
Whether the continuation of trial in Charge No. FCT/HC/CR/9/2019 by the trial High Court without delivering Ruling on Motion No. M/8989/2020, which motion is a plea of autre fois acquit by the appellant, does not amount to double jeopardy against the appellant, contrary to the provisions of Section 36 (9) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), and Section 238 and 277 of the Administration of Criminal Justice Act, 2015?

Learned counsel for the appellant submitted that the resolution of these issues revolve around a narrow constitutional compass, which is the effect of Section 36(9) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended), in peculiar circumstances of this case, on Section 396(2) OF ACJA, 2015. Counsel further stated that the above provision of the

constitution are very clear and hardly require any interpretation, thus, must be accorded its ordinary meaning, counsel relied on Ugwu v. Ararume (2007) 12 NWLR (Part 1048) 367. Learned counsel for the appellant submitted that upon being served with the appellant’s Motion pleading autre fois acquit, the 1st Respondent reacted on 15th September, 2020, not only with a counter Affidavit to the Motion, but an amended charge. The amendment of the charge to add the sixth count, is clearly an afterthought in a desperate attempt to overreach the Appellant’s plea of autre fois acquit. The Supreme Court has admonished Courts not to allow applications that amount to an overreach. Counsel relied on Akaninwo & 4 Ors. v. Nsirim & 3 Ors. (2008) 9 NWLR (Pt. 1093) 439.

Learned counsel to the appellant submitted that whereas Section 36 (9) of the Constitution, and Section 238 and 277 of the Administration of Criminal Justice Act, make specific provision for the pleas of autre fois acquit or convict, Section 396 (2) makes provision for “any objection”. The consequence of this my lord, is that in the peculiar circumstance of this case, the trial Court ought to have

applied the specific provisions, which prohibits a second trial rather than apply Section 396(2) of ACJA, which amounts to double jeopardy against the appellant. This principle of interpretation is as trite as it is old. Counsel relied on Schroder & Co. v. Major & Co. (Nig.) Ltd. (1989) 2 NWLR (Pt. 101) at 18-19; Federal Republic of Nigeria v. Osahon (2006) 2 S.C. (Pt. II) 1. He submitted that the trial Court erred in law when it relied on Section 396(2) of ACJA to withhold Ruling on Motion No. M/8989/2020, contrary to Section 36 (9) of the Constitution, and Section 238 and 277 of ACJA. By this failure the trial Court failed to exercise its power, and indeed its duty, to deliver Ruling on the said Motion. However, situations like this are not uncontemplated by the Legislature, and it is to this end that the lawmakers made provisions to imbue this Honourable Court with necessary powers to exercise such powers that the trial Court fails to exercise. Counsel relied on Section 15 of The Court of Appeal Act, 2015. Counsel urge this Court to exercise the power of this Honourable Court to hear and determine Motion No. M/8989/2020 in the interest of justice.

In response, learned counsel for the 1st Respondent submitted that the lower Court predicted its decision to defer ruling on the Appellant’s Motion on Notice to quash charge on SECTION 396(2) of the ACJA 2015 and the provision is part of the conscious innovations designed to promote the efficient management of Criminal Justice Administration in Nigeria. Counsel relied on Destra Investment Ltd v. FRN (2018) 8 NWLR (1621) P. 335; Salik v. Idris (2015) All FWLR (Pt. 790) 1307 SC; Dalhatu v. Turaki & Ors. (2003) LPELR-917 (SC).

Learned counsel to the 1st Respondent submitted that all submissions of the appellant which do not form part of the decision appealed against, are not only borne out of the record, they are without foundation and thus incompetent. And that, a party cannot make a case outside the issue formulated. Counsel relied on Aigbadion v. State (1998) LPELR- 5246 (CA); Ngige & Anor v. INEC & Ors. (2014) LPELR-24513 (CA); Fregene v. IGP (2019) LPELR-47785 (CA); Afemai Microfinance Bank Ltd v. Seacos (Nig.) Ltd (2014) LPELR- 22583 (CA); Lawrence v. FRN (2018) LPELR-44510 (CA). Finally, learned counsel to the 1st Respondent

submitted that power of this Honourable Court under Section 15 of the Court of Appeal Act, 2004 is discretional. That this Court does not exercise the power to rehear on every occasion. The Court is expected to exercise the power only where the justice of the case before it demands that the power should be exercised. It is tidier for facts to be resolved by the lower Court. Counsel relied on Ezeigwe v. Nwawulu (2010) 4 NWLR (Pt. 1183) 159. Counsel urged this Court to dismiss the appeal.

In response, counsel for the 2nd Respondent submitted that it concedes to the fact that the decision of the learned trial Judge which deferred consideration and determination of issues raised in Motion on Notice No. M/8686/2020 to the conclusion of the Criminal proceeding pending before him amounted to breach of the Appellant’s right as guaranteed under Section 36(9) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended).
Learned Counsel for the 2nd Respondent further submitted that the provision of Section 369 (2) of the Administration of Criminal Justice Act, 2015 should be struck down, declared unconstitutional, null and void to the extent of

it inconsistencies to the provision of Section 36(9) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended). The earlier being an impediment to the rights conferred on the appellant by the later.

The crux of these two issues is the reliance of the lower Court on Section 396(2) of Administration of Criminal Justice Act, 2015 (ACJA) to refuse to deliver ruling on the Motion filed by the appellant to establish autre fois acquit. Section 396(1) & (2) of ACJA provide as follows:
396. (1) The defendant to be tried on an information or charge shall be arraigned in accordance with the provisions of this Act relating to the taking of pleas and the procedure on it.
(2) After the plea has been taken, the defendant may raise any objection to the validity of the charge or the information at any time before judgment provided that such objection shall only be considered along with the substantive issues and a ruling thereon made at the time of delivery of judgment.
The provision is very clear, simple and straight forward. In Subsection 2, the law allows any defendant before the Court on a criminal charge to raise any objection

to the validity of the charge or information at any time before judgment with a proviso that the objection shall be considered along with the substantive issues at the end of the case. This was introduced by the law to cure and curb excesses of Defendants and counsel who on any slight complaint about regularity or form of a charge do lock down trial and they will take the matter through series of needless appeals and stall the prosecution of the offenders. This law as appropriately captured by the learned counsel for the respondent is meant to be conscious innovation designed to promote the efficient management of criminal justice administration in Nigeria. This notwithstanding, every trial Court must be cautious to differentiate which situation can be addressed under that law and which one should not be tied to the law. It all depends on the nature of objection raised. If the nature of objection raised is not tardily on the form or peripheral issues on the charge before the Court but deftly attack the jurisdiction of the Court, the Court would have to use its discretion to timeously address it. In the instant case, the Motion filed and heard by the lower

Court is at pages 273 to 276 of the Record of Appeal. The Motion has one relief and an alternative relief. The reliefs so specified read as follows:
1. An Order of this Honourable Court dismissing the instant Charge No: CR19/2019 and accordingly discharge the Defendants.
OR IN THE ALTERNATIVE
2. An Order of this Honourable Court referring to the Court of Appeal the following question for its decision to with:
“Whether in view of the provisions of Section 36(9) of the Constitution of the Federal Republic of Nigeria, 1999 (As amended); Section 238 and 277 of the Administration of Criminal Justice Act, 2015; Article 7 of the African Chatter on Human and Peoples’ Right, vis-a-vis the decision of the Magistrate Court presided by His Worship, E.D. Ebiwari (Magistrate One) discharging and acquitting the 1st Defendant in case No: CR/10/2019 of the offences of Criminal Conspiracy, Criminal Breach of Trust and Forgery contrary to Section 97, 312 and 363 of the Penal Code Law, emanating from the same transaction based on the complaints by the same nominal complaint as in the instant suit, this trial of the Defendants before this Court for the same

offences under Section 312, 363 and punishable under Section 364 and 366 of the Penal Code Law the continuation of this trial does not amount to double jeopardy against the Defendants”.
3. AND for such further order(s) that this Honourable Court may deem fit to make in the circumstance of this Application.
The grounds for this application from the face of the Motion as elaborately expressed as follows:
1. That by First Information Report (FIR) filed on 3rd March, 2019 at the Magistrate Court, a Criminal Complaint was brought against the 1st Defendant, Joseph Idakwo by the Inspector General of Police in Case No. CR/10/2019 before His Worship, E.D. Ebiwari (Magistrate 1).
2. That the FIR was premised upon a Petition on alleged “Report of Acts of Conspiracy, Criminal Breach of Trust and Forgery” dated 22nd February, 2019, against the Defendants by One Hajiya Halima Babangida through her Solicitors, Adetokubo & Co. with respect to a Development Agreement dated 24th February, 2017, between the said Hajiya Halima Babangida and the 2nd Defendant in this suit, that is Zamtrac Management and City Investment Ltd., represented by one Aliyu

Dasuki and the 1st Defendant, in the Petition wherein allegations of Forgery were made against the Defendants.
3. That consequent upon the Petition by Hajiya Halima Babangida through her Solicitors, the FIR as per paragraph 1 was commenced, wherein the 1st Defendant was charged with Criminal Conspiracy, Criminal Breach of Trust and Forgery contrary to Sections 97, 312, and 363 of the Penal Code Law and the 1st Defendant was arraigned thereupon on the 3rd of June, 2019.
4. That before Case No.CR/10/2019 was filed, the said Hajiya Halima Babangida caused another Criminal Complaint of Conspiracy, Criminal Breach of Trust, Forgery, Threat to Life and Character Assassination dated 10th May, 2019 to be made by her Solicitors, A.M. Saleh & Co., against the Defendants and one Aliyu Dasuki with respect to the same transaction as in the petition of 22nd May, 2019 to the Chairman of the Economic and Financial Crimes Commission (EFCC).
5. That the 1st Defendant was arraigned before this Honourable Court on 25th October, 2019.
6. That whilst Case No. CR/10/2019 was pending and being prosecuted by the Inspector General Police for Criminal

Conspiracy, Criminal Breach of Trust and Forgery contrary to Sections 97, 312, and 363 of the Penal Code Law, the EFCC instituted Charge No.CR/9/2019 before this Honourable Court for Criminal Breach of Trust and Forgery contrary to Sections 312, 363, 364 and 366 of the Penal Code Law whereupon the Defendants were arraigned on 25th October, 2019.
7. That at the closing of the Prosecution’s case in the Magistrates’ Court in Case No. CR/10/2019, the 1st Defendant entered a No Case Submission, and upon hearing addresses by both the Defence and the Prosecution, the Magistrate Court entered Judgment on 21st February, 2020, in favour of the Defence, affirming the No-Case submission and thereby, discharging and acquitting the 1st Defendant and dismissing the FIR against him.
8. That consequent upon the acquittal of the 1st Defendant by a Court of competent Jurisdiction, this Honourable Court ceased to have the jurisdiction to try the Defendants on the same act emanating from the same transaction with the same nominal complainant over which complaint, the 1st Defendant had been tried, discharged and acquitted.
9. That the trial and/or continuation of

this trial amounts to double jeopardy on the part of the Defendants, to which the Defendants are immune by virtue of Section 36 (9) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended); Section 238 of the Administration of Criminal Justice Act, 2015; and Article 7 of the African Chatter of Human and Peoples’ Rights.
10. That the trial and/or continuation of this amounts to a breach of the Defendants’ fundamental Human Right to Fair Hearing as guaranteed under in Section 36 (9) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended); Section 238 of the Administration of Criminal Justice Act, 2015; and Article 7 of the African Chatter on Human and Peoples’ Rights.
11. That it is in the interest of Fair Hearing pursuant to Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 (as amended); Section 277 of the Administration of Criminal Justice Act, 2015, and Article 7 of the African Chatter on Human and Peoples’ Rights to hear and grant this application.
I purposely reproduced the grounds propping the application to enable us appreciate the depth of the issues generated in that Motion.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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Let me say here that the fact remains certain that a Judge undoubtedly is in charge of every proceeding before him. It is however, his bounden duty to deploy as a sage his judicial power to do what is fair under the circumstances of the case and be guided by the rules and principles of law. He must be guided by the need to deploy prudence, rationality and sagacity in applying the law. Fabiyi, JSC, in the case of Ajuwa & Anor v. SPDC (Nig.) Ltd (2011) LPELR – 82434 (SC) while considering the nature of judicial discretion held:
“Judicial discretion is a sacred power which inheres to a Judge. It is an armour which the Judge should employ judicially and judiciously to arrive at a just decision. Same should not be left to the whims and caprices of a party to the action. It is not in tandem with the dictates of public policy which demands, inter alia, that administration of justice shall be discharged without any form or prompting by the parties. Discretion had been defined to mean ‘a power or right’ conferred upon public functionaries by law of acting officially in certain circumstances according to the dictates of their own judgment and conscience,

uncontrolled by the judgment or conscience of others. See: State v. Whitman R. 11, 431 A. 2d 1229, 1233; Black’s Law Dictionary, Sixth Edition Page 466”.
Guided by these words of wisdom, let us approach the application placed before the lower Court in this case.
The application is geared towards enforcing or safeguarding the fundamental right of the appellant under Section 36(9) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). Section 36(9) provides:
(9) No person who shows that he has been tried by any Court of competent jurisdiction or tribunal for a criminal offence and either convicted or acquitted shall again be tried for that offence or for a criminal offence having the same ingredients as that offence save upon the order of a superior Court.
This provision is straight forward and sacrosanct. It is a prime constitutional provision which takes preference and precedence over any provision of an Act of National Assembly or a law of the state.
The Constitution of the Federal Republic 1999, is the Supreme Law of the land. The Constitution is supreme and it binds all authorities and persons throughout the

Federal Republic of Nigeria. No other law in the land can over write, confront or ride roughshod on the provisions of the Constitution. By Section 1(3) of the said Constitution, if any other law is inconsistent with the provisions of this Constitution, the Constitution shall prevail and that other law shall to the extent of the inconsistency be void. There is therefore, no how any other law can be applied or operated in preference to a constitutional provision. Section 36(9) of the Constitution in its context forbids a Court from trying any person who shows that he had been tried by a Court of competent jurisdiction for a criminal offence and had been acquitted. This law raises for a defendant, the defence of autre fois acquit. The Motion No: M/8687/2020, filed by the appellant and for which the lower Court heard, is meant to stop the appellant from going into another trial since he is showing that he had been tried for the same offence before. It is therefore unconscionable with due respect for the lower Court to reserve the ruling until the same appellant had gone through trial to be told whether he should be tried again or not. This does not fit into the mould of Section 396(2) of the Administration of Criminal Justice Act.

The learned trial Judge in the circumstance of this case was not right to have relied on Section 396(2) of ACJA to withhold the ruling on the Motion No: M/8989/2020.
From the foregoing therefore, it is obvious that the continuation of trial of the appellant in this case without finding out whether the appellant has shown duly that he was tried before and acquitted on the same charge before the Court is offensive to Section 36(9) of the Constitution. It is akin to ambushing the fundamental right of the appellant to fair hearing. It follows therefore that these issues 2 and 3 are in favour of the appellant. The two issues are therefore, so resolved in favour of the appellant.
The instant appeal from the foregoing consideration has merit and it is allowed.

One of the reliefs sought by the appellant is the request for this Court to act under Sections 15 and 23 of the Appeal Court Act and determine Motion No: M/8687/2020. Let me say right away that this is an interlocutory appeal. The lower Court is still seized of the substantive case. It will therefore, be tantamount to one

case being heard by the two Courts at the same time if this Court takes over the case. Section 15 of the Act of this Court cannot therefore be culled into this matter to enable this Court hear the Motion already heard and ruling is being awaited at the lower Court. That relief is accordingly turned down.

Significantly also is another relief that this Court should strike down Section 396(2) of ACJA as being unconstitutional, null and void to the extent of its inconsistency with Section 36(9) of the Constitution. The provision of Section 396(2) was not specifically clamped to Section 36(9) of the Constitution or any of the provisions of the Constitution. The provision of Section 396(2) of ACJA is a general provision which is meant to ensure speedy trial of the case by the lower Court. It is only to be noted that, that provision is not applicable to this present case based on its peculiar facts. I hold therefore, that it was only wrongly applied to the instant case, it is not unconstitutional. So that relief talking of striking down Section 396(2) of ACJA is refused.

Other reliefs of the appellant in this appeal outside these two are hereby granted and the appropriate orders to give after allowing this appeal are as follows:
(a) The Ruling of the trial High Court delivered on the 22nd of June, 2020, which rejected the evidence the Certified True Copy of the Ruling of the Magistrate Court in Charge No: CR/10/2019, dated 21st February, 2020, by His Worship, E.D. Ebiwari, discharging and acquitting the 1st Appellant is hereby set aside.
(b) That the lower Court shall admit into evidence, the Certified True Copy of the Ruling of the Magistrates Court in Charge No: CR/10/2019 dated 21st February, 2020.
(c) The decision of the trial High Court of 24th September, 2020 which refused to consider and determine the Appellant’s Motion No: M/8687/2020 until the time of delivery of final judgment purportedly in line with Section 396(2) of the Administration of Criminal Justice Act, 2015, is hereby set aside.
(d) The lower Court is hereby ordered to consider and deliver Ruling in respect of Motion No: M/8989/2020, before taking further steps in the proceeding.

PETER OLABISI IGE, J.C.A.: I agree.

YARGATA BYENCHIT NIMPAR, J.C.A.: I had the privilege of reading in advance the judgment just

delivered by my learned brother, STEPHEN JONAH ADAH, JCA and I am in agreement with his reasoning and conclusion arrived at therein.

ELFRIEDA OLUWAYEMISI WILLIAMS-DAWODU, J.C.A.: I have had the privilege of reading in draft the lead judgment of my learned brother, Stephen Jonah Adah, JCA, and I am in total agreement with the reasoning and conclusion reached therein.

I therefore also find the appeal meritorious and abide by the orders made therein.

I make no order as to costs.

RIDWAN MAIWADA ABDULLAHI, J.C.A.: I have had the privilege of reading in draft the lead judgment just delivered by my learned brother, Stephen Jonah Adah, JCA.

The reasoning and conclusion reached in the lead judgment by my noble lord are agreed firmly by me with nothing useful to add thereto. I too found the appeal with merit and it is allowed. The decision of the trial Court is hereby set aside. I abide by the grant of the reliefs contained in the lead judgment and adopt the orders therein as mine.

Appearances:

Y.C. Maikyau, SAN, with him, H.A. Matunji, Esq. and O.O. Amadi, Esq. For Appellant(s)

Benjamin Manji, Esq. – for 1st Respondent.
O.A. Dada, Esq. – for 2nd Respondent For Respondent(s)