JANGEBE v. STATE (2020)

JANGEBE v. STATE

(2020)LCN/14440(CA)

In The Court Of Appeal

(SOKOTO JUDICIAL DIVISION)

On Friday, July 17, 2020

CA/S/118C/2017

Before Our Lordships:

Ali Abubakar Babandi Gumel Justice of the Court of Appeal

Frederick Oziakpono Oho Justice of the Court of Appeal

Abubakar Mahmud Talba Justice of the Court of Appeal

Between

TUKUR JANGEBE APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

DUTY OF AN APPELLANT IN TAKING BENEFIT FROM ANY DEFECT IN A CHARGE

The attitude of this Court in all such cases coming before the Court for the first time on Appeal is as encapsulated in the judgment of this Court in the case of DANIEL PETER vs. THE STATE (2013) LPELR-20302 CA, where this Court per OGUNWUNMIJU, JCA had this to say on the subject;
“For an Appellant to take the benefit from any defect in a charge, he has the duty/burden to prove to the satisfaction of the Court at any stage of the case, that the error or omission on the face of the charge had misled the accused/Appellant during the trial and had also led to a miscarriage of justice during the trial. The error or omission in the charge will be regarded as an irregularity which is not fatal to the proceedings. See JOHN TIMOTHY vs. FRN in suit No: SC 129/2007 delivered on 15-6-2012 by the Supreme Court. Also see YABUGBE vs. COP (1992) 4 NWLR (PT. 232) 153 at 172 and 176.” PER OHO, J.C.A.

WHETHER OR NOT IT IS THE DUTY OF THE COURT TO PROVIDE AN ENABLING CONDUCIVE ENVIRONMENT FOR AN ACCUSED PERSON TO VENTILATE HIS GRIEVANCES OR DEFENCE IN A GIVEN MATTER

It is important to just quickly draw the curtain on this issue without generally mincing words, that all the Court really owes a party appearing before it and standing trial for one offence or the other is the provision of an enabling/probably conducive environment for the accused person to ventilate his grievances and/or defence in a given matter. When once the Court does that it will be almost uncharitable for a party to turn around and accuse the Court of a denial of a right to fair hearing. The position of the law, settled as it were is that in such a situation, where a person is offered all the opportunities to take advantage, but fails to so do in projecting his rights in the best way he can, is said to have waived such rights and cannot be further heard to complain. See the case of ODULAMI vs. N. A. (2013) 12 NWLR (PT. 1367) 20; NWEKE vs. THE STATE (2017) NWLR (PT. 1587); EZE vs. FRN. PER OHO, J.C.A.

FREDERICK OZIAKPONO OHO, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Zamfara State, Gusau Judicial Division, in Charge No: ZMS/GS/15c/2016 delivered on the 27-3-2017, Coram B. M. SHINKAFI, J wherein the learned trial judge found the Appellant guilty of the offences of dishonestly receiving stolen property contrary to Section 317 of the Penal Code and demanding “the sum of One Million (N1,000,000,00) Naira from one Hadiza Rabe to facilitate the release of one Jummai Garba from the custody of the Department of State Security (DSS) Gusau, Zamfara State Command dated the 23-08-2017. Before the said trial Court, TUKUR JANGEBE (hereinafter referred to as the “Appellant”) was arraigned on a four Counts Charge, which reads thus;
FIRST HEAD
That you Tukur Jangebe together with one Buhari Assaulu A.K.A General/Tsoho, Ali Namarke (at large) all “M” between the 1st June, 2015 and 28th July, 2016 at Gidan Garba Burwaye and Gobirawa forest bandits den respectively within the Judicial Division of this Honorable Court, conspired to commit an offence to wit: Armed Robbery. You thereby committed an

offence contrary to Section 6(b) of the Robbery and Firearms (Special Provisions) Act Cap R11 LPN 2004
SECOND HEAD
That you Tukur Jangebe “M” on or about 1st June, 2015 and 28th July, 2016 at Hayi Jangebe Town Talata Mafara Local Government Area within the judicial division of this Honourable Court gave Six(6) rustled cows to one Alhaji Muntari Alakwa “M” of the same address to convey to Talata Mafara Cattle market for sale. You thereby committed an offence contrary to Section 317 of the Penal Code.
THIRD HEAD
That you Tukur Jangebe “M” on or about 23rd day of July, 2016 at Miyetti Allah Cattle Breeders Association(MACBAN) Zamfara State Office Gusau within the judicial division of this Honorable Court demanded the sum of One Million Naira from one Hadiza Rabe “F” to facilitate the release of one Jummai Garba “F” from the custody of the Department of State Security Gusau Zamfara State Command. You thereby committed an offense contrary to Section 168(1) of the Penal Code.
FOURTH HEAD
That you Tukur Jangebe “M” between the 1st of June, 2015 and the 28th of July, 2016 at Gobirawa Forest, Maru Local

Government Area, Zamfara State within the judicial division of this Honourable Court visited one Buhari Assaulu A.K.A General Tsoho where you assisted him and other members of his group in the disposal of rustled cows, supply of motorcycles and information about security operation. You thereby committed an offense contrary to Section 85 of the Penal Code.

The Appellant pleaded not guilty to the Counts. In its bid to establish the Counts against the Appellant as an Accused person, the Prosecution called a total of four (4) witnesses who testified from pages 33 – 40 as PW1 – PW3 and at pages 43 – 44 for the PW4 of the record of Appeal. The Appellant testified for himself and called a witness. One Umar Abubakar testified as the DW1 at pages 44 – 45 while the Appellant himself testified as the DW2 at pages 45- 49 of the printed record. At the close of hearing, the parties delivered oral final addresses from pages 49 – 57 of the printed record.

The learned trial judge thereafter delivered a well-considered judgment on the 27-3-2017 discharging the Appellant in Counts 1 and 4 of the charge and convicting him in Counts 2 and 3 and sentenced him as

hereinbefore stated. Dissatisfied with his conviction the Appellant has now appealed to this Court vide a Notice of Appeal filed on the 5-5-2017. The judgment of the Court is found at pages 58-68 of the main Record of Appeal deemed transmitted on 9-4-2018. There are seven (7) Grounds of Appeal filed. The Notice of Appeal can be seen at pages 69-73 of the main record.

ISSUES FOR DETERMINATION
The Appellant nominated three (3) issues for the determination of this Appeal thus;
1. Whether the Third Head of the Charge is competent or discloses any offence under, Section 168(1) of the Penal Code to clothe the Court below with the jurisdiction to try and convict the Appellant thereunder? – (Ground 2)
2. Whether, assuming without conceding that the Third Head of the Charge discloses an offence under Section 168(1) of the Penal Code, the Court below was right in placing reliance on the testimony of PW1 to convict the Appellant on that head when no extra-judicial statement of the witness, in breach of the Appellant’s fundamental right to fair hearing, was attached to the proof of evidence filed and served on the Appellant – (Grounds 1, 3 & 4).

Whether, assuming without conceding, that the Third Head of the Charge is competent or discloses an offence under Section 168(1) of the Penal Code, the prosecution proved the Second and Third Heads of the Charge beyond reasonable doubt and whether the trial Court properly evaluated the evidence before it? (Grounds 5 – 7)

On the part of the Respondent, a sole issue was nominated for the determination of this Appeal which reads thus;
“Whether the prosecution has proved its case beyond reasonable doubt as required by the law on the whole four counts charge?”

SUBMISSION OF LEARNED COUNSEL:
APPELLANT:
ISSUE ONE;
Whether the Third Head of the Charge is competent or discloses any offence under Section 168(1) of the Penal Code to clothe the Court below with the jurisdiction to try and convict the Appellant thereunder? – (Ground 2).

In arguing this Appeal, Counsel argued that the Third Head of the Charge under which the Appellant was tried and convicted has not disclosed the essential ingredients of an offence under Section 168(1) of the Penal Code to enable the Court below assume jurisdiction to try the Appellant

thereunder. He argued that in other words, that Head of Charge is incompetent for non-disclosure of the essential ingredients of the offence of Taking gratification to screen an offender from punishment. In support of his arguments, Counsel cited the case of TIMOTHY vs. FEDERAL REPUBLIC OF NIGERIA (2008) All FWLR 1136 at 1152 and urged this Court to follow its decision in this case and hold that the Third Head of the Charge has not disclosed the ingredients of the offence of taking gratification to screen an offender from punishment contrary to Section 168(1) of Penal Code as he was charged and convicted at page 66 lines 5 – 8 of the printed record.

It was further argued by Counsel that the Third Head of the Charge as laid at page 5 of the printed record has not disclosed any offence created by Section 168(1) of the Penal Code or any other law for that matter to enable the Court below to try the Appellant thereunder. According to Counsel, to assume jurisdiction as the Court below did contravenes Section 36(12) of the Constitution of the Federal Republic of Nigeria 1999.

Learned Counsel also contended that a perusal of the Third Head of the Charge as

laid will clearly show that none of the ingredients of the offence provided under Section 168(1) of the Penal Code has been disclosed. Counsel further contended that it is clear that the Third Head under which the Appellant was tried and convicted does not disclose any of the above ingredients. He argued still that to attempt to secure an administrative bail of somebody as alleged here is not offence under Section 168(1) of the Penal Code and he urged the Court to so hold.

Arising from the foregoing, Counsel submitted that the effect in law of trying an accused person on an incompetent or bad charge is that the accused will be discharged. See REMI OLOWOYO vs. THE STATE (2012) WRN 113 at l31 -132. To this end, Counsel urged this to resolve this issue in favour of the Appellant and discharge and acquit him on this Count as the issue canvassed herein, bothers on jurisdiction and can be raised even for the first time even on appeal.

ISSUE TWO:
Whether, assuming without conceding that the Third Head of the Charge discloses an offence under Section 168(1) of the Penal Code, the Court below was right in placing reliance on the testimony of the PW1 to

convict the Appellant on that Head when no extrajudicial statement of the witness, in breach of the Appellant’s fundamental right to fair hearing, was attached to the proof of evidence filed and served on the Appellant – (Grounds 1, 3 & 4)

Learned Counsel submitted that the trial Court ought not to have relied on the PW1’s evidence to convict the Appellant of this Head of the Charge because the extra-judicial statement of this witness was not attached to the proof of evidence. Counsel argued that under Section 36(5) (b) of the Constitution of the Federal Republic of Nigeria 1999, the Appellant enjoys a fundamental right to be given adequate time and facilities for the preparation of his defence. He added that failure to attach the extra-judicial statement of the PW1 was a breach of that right since the Appellant was kept in the dark as to what to expect from the witness, and so denied his right to fair hearing.

Counsel cited the case of OLOWOYO vs. THE STATE (Supra), where the Court of Appeal held, “A proof of evidence in criminal case is just like a statement of claim in civil cases, it should be explicit and should not hide anything from the

other party as law is not a game of hide and seek, all facts, evidence and exhibits should be brought to fore to enable the appellant prepare for this defence. See Section 36 of the 1999 Constitution 1999 and the case of JOSIAH vs. STATE (1985)1 NWLR (PT.1) 125 AT 133; (1985)1 NSCC 132; (1985) S.C 416 PARAS. F and OGUNSANYA vs. THE STATE (2011) LPELR-50120 (SC).

In addition, learned Counsel submitted that in the same case of OLOWOYO vs. THE STATE (Supra) at pages 133 – 134, the Court of Appeal held that failure of the prosecution to attach the written statement of the prosecution witnesses is fatal to the prosecution’s case and that will render the whole trial a nullity. Relying on OHWOVORIOLE vs. FRN (2003)15 WRN 1 (2003)1 SC 1, (2003) FWLR (Pt. 141) 2019 and (2003) 13 NSCQR 1, Counsel said that the Court quoted the apex Court as holding inter alia that:
“The application must be accompanied by a copy of the charge sought to be preferred, names of witnesses who shall give evidence at trial, and proof of evidence (written statements) which shall be relied upon at the trial… “The Court of appeal continued:
“On non-attachment of the written

statement of prosecution witnesses, the Respondent did not dispute the above holding and neither did he find a Superior argument. The absence of the written statement of the prosecution witnesses attached to the charge sheet is fatal as it fails to meet the standard required by the 1999 Constitution and other relevant statutes. The requirements and provision of Section 72 and 77 of the Criminal Procedure law are mandatory and cannot be waived at all, the mere fact that the accused Counsel did not object to the anomaly or imperfection of the charge will not stop this Court from doing justice to an accused person.” Per DENTON-WEST, JCA (Pp. 133 – 134) lines 25 – 5.

Learned Counsel urged the Court to follow this authority and to hold that the non- attachment of the Statement of the PW1 to the proof of evidence is fatal to the prosecution’s case. Counsel referred this Court to Rule 3(1) of the Criminal Procedure (Application to prefer a charge in the High Court) Rules, 1970 which makes it mandatory also that the application must be accompanied by statement of witnesses or proof of evidence. Counsel finally, urged this Court to resolve this issue in favour

of the Appellant and to hold that the non-attachment of the PW1’s statement to the proof of evidence is fatal to the prosecution’s case.

ISSUE THREE:
Whether, assuming without conceding, that the Third Head of the Charge is competent or discloses an offence under Section 168(1) of the Penal Code, the prosecution proved the Second and Third Heads of the Charge beyond reasonable doubt and whether the trial Court properly evaluated the evidence before it? (Ground 5 – 7)

The contention of learned Counsel in arguing this issue is that the Prosecution has not discharged the burden of proof in respect of the Second and Third Heads of the Charge. It was further contended that for the offence of dishonestly receiving stolen property contrary to Section 317 of the Penal Code as laid on the Second Head of the charge at page 4 of the printed record, the prosecution has the onus of proving beyond reasonable doubt the following ingredients:
(a) That the property in question, in this case the six cows, were stolen cows.
(b) That the accused received or retained such property
(c) That he did so dishonestly
(d) That he knew or

had reason to believe that the property (the 6 cows) were stolen property.
See page 27 of Notes on the Penal Code Law, 4th Edn. 1987 Annotated by S.S Richardson, CBE.

According to learned Counsel, the learned trial Court Judge relied on the evidence of the PW2 and PW3 to convict the Appellant on this count. See pages 63 – 64 lines 9 – 30, 1 – 11 of the printed record. Counsel argued that the trial Judge made no attempt to evaluate the evidence of the DW1 and DW2 all of which he dismissed with a wave of the hand as follow: “The testimonies of the DW’s 1 and 2 on this point appear to me to be useless and of no use to the accused or the Court”. See page 64 lines 5 – 6 of the printed record.

Learned Counsel also contended that the approach of the learned trial Judge to the evidence of the DW1 and DW2 in this case is inconsistent with the position of the law. The law is settled that, a Judge is not permitted to pick and drop evidence at will. He said that the Court ought to have put all the evidence on an imaginary scale and see where it tilts. Counsel submitted that a raw piece of evidence that was not discredited should be acted upon by the Court

since it was not disputed or discredited by the Court – OLOWOYO vs. THE STATE(Supra) at 147 lines 10 – 20. In this case, Counsel urged this Court to hold that the trial Court failed in its duty to evaluate the evidence placed before it.

The argument of learned Counsel is that the evidence of the PW2 found at pages 37 – 39 of the printed record and that of the PW3 at pages 39 – 40 of the printed record gave any credible evidence to establish any of the ingredients of the offence of receiving stolen property against the Appellant. He said that the piece of evidence relied upon by the trial Court to find that the cows were stolen cows is hearsay evidence. According to Counsel, at page 63 lines 9 – 14 of the printed record, the Judge held:
“By the evidence of the PW2 and PW3, there is no doubt that the cows in question were stolen cows. This is confirmed by the testimony of PW2 when he said that a man came to him and said his cows had been stolen and he had seen 6 of his stolen cows and the testimony of the PW3 when the said that one man called Dan Balange told him that the owners had seen their cows. In the circumstance I am satisfied that the 1st

ingredient has been established by the prosecution.”

Against the backdrop of the foregoing, Counsel submitted that this finding was based on hearsay evidence which is inadmissible – Section 38 of the Evidence Act. As far as Counsel was concerned, none of the prosecution witnesses relied upon by the trial Judge on this point had personal knowledge of the fact that the cows were stolen as each of the PW2 and PW3 relied on the information supplied by persons who were not called to testify – See UTTE vs. THE STATE (1992) 2 NWLR (PT. 223) 257 at 273. The argument of Counsel was that for the Court to rely on the evidence of those witnesses without considering the unchallenged evidence of the DW1 and DW2 who gave graphic evidence of how the Appellant came to be connected with the case led the trial Court into making the very perverse finding he made at the trial.

Counsel disclosed that the DW1 and DW2 testified at pages 44 – 49 of the printed record and that the testimonies of these witnesses was not shaken, challenged or debunked during cross-examination and that rather than believing them, the trial Court chose to dismiss their testimonies with a wave of

the hand without assigning any reasons whatsoever. Counsel submitted that evidence that is neither challenged nor debunked remains good and credible which should be relied upon by a trial Court who would in turn ascribe probative value to it. See EBEINWE vs. THE STATE (2011)3 SCM 46 at 56; THE STATE vs. OLADOTUN (2011)6 SCM 217 at 228. Counsel further submitted that the trial Court’s finding on the 1st element of the offence was perverse in that it arrived at the conclusion that the cows were stolen cows by relying on an inadmissible evidence and failure to consider or evaluate the evidence of the DW1 and DW2 alongside the evidence of the PW2 and PW3, which the Court relied upon.

Learned Counsel conceded that it is the primary responsibility of a trial Court to evaluate evidence and pronounce upon their credibility or probative value, but that in the situation when the trial Court, as in this case abdicated this sacred duty the matter becomes at large for the Appellate Court to interfere. He said that in this case, this Court is in as good a position as the trial Court to evaluate the evidence provided the exercise does not involve credibility of the

witnesses who testified at the trial – See FAGBENRO vs. AROBADI (2006)19 WRN 1 at 30. Against the backdrop of the foregoing, Counsel urged this Court to step in and evaluate the evidence of the prosecution and that of the defence as such exercise does not involve the credibility of the witnesses as it is an invitation to perform a duty, the trial Court failed to perform.

Counsel submitted that if this Court does that it will be easy to see that; (a) The evidence relied upon by the trial Court, that is, the evidence of the PW2 and PW3 is a piece of hearsay and (b) That there was no evidence coming from any of those witness to show:
i. Who owns the cows?
i. Who stole the cows?
iii. When the cows were stolen, and
iv. From whom the Appellant allegedly received the cows.
(c) That the evidence of the PW2 and PW3 were thoroughly discredited under cross-examination and (d) That the evidence of the DW1 and DW2 was cogent, credible, unchallenged and not debunked during cross-examination, and should have been believed and acted upon by the trial Court.

In the light of the foregoing, Counsel urged the Court to hold that the trial

Court did not evaluate the evidence of the witnesses on this point and that the first element of the offence under Section 317 of the Penal Code (The Second Head of the Charge) has not been proved and that the trial Court failed to evaluate the evidence tendered before it. In the same token, Counsel urged this Court to disturb the finding of the lower Court where it held that the 2nd, 3rd and 4th ingredients of the offence under Section 317 of the Penal Code were proved via the evidence of the PW2 and PW3 who were thoroughly discredited under cross-examination.

In respect of the offence under Section 168(1) of the Penal Code under which the Appellant was charged in the Third Head of the Charge at page 5 of the printed record, it was submitted by Counsel that the prosecution never adduced any credible evidence to prove that the Appellant committed the offence alleged. Counsel emphasized that under Section 168(1) of the Penal Code, the prosecution needed to prove beyond reasonable doubt as follow:
(a) The commission of the offence concealed
(b) That the accused –
(i) Concealed the offence; or
(ii) Screened the offender from punishment; or

(iii) Omitted to proceed against the offender
(c) That the accused accepted or attempted to obtain or agreed to accept a gratification in consideration of doing one of the things stated in (b) above.

The contention of Counsel here is that in convicting the Appellant of this offence, the lower Court relied on the Evidence of the PW1 and Exhibits A and A1 (The Hausa and English versions of the extra judicial statements of the Appellant). According to Counsel, the PW1’s testimony is found at pages 33 – 36 of the printed record stated that in nowhere in the evidence of the PW1, did he demonstrate-
(a) The commission of any offence allegedly concealed by the Appellant.
(b) The offence committed by the suspect later identified as Jummai Garba that the Appellant sought her release on bail.
(c) That the Appellant concealed any offence
(d) That the Appellant screened an offender from punishment
(e) That the Appellant omitted to proceed against any offender
(1) That the N1,000,000,00 allegedly demanded from the DW4, in Order to secure the bail of Jummai Garba, was for the purpose of doing any of (a) – (e), supra.

The submission of learned Counsel is that the testimony of the PW1 and Exhibit A and A1, which the trial Judge also placed reliance on and quoted part of which in his judgment at page 65 lines 23-29 of the record does not bear out the conclusion reached by the trial judge in his judgment at page 66 lines 1 – 4 of the printed record thus: –
“In my view, the testimony of the PW1 above and the extra-judicial statement of the accused quoted above are enough to establish all the ingredients under Section 168(1) of the Penal Code. In the circumstances, I am satisfied that the prosecution has established its case under Section 168(1) of the Penal Code against the accused. Consequently therefore the accused is hereby convicted of taking gratification to screen an offender from punishment contrary to Section 168(1) of the Penal Code.”

The submission of Counsel is that the finding and conclusion are perverse for the following reasons: –
(a) There was no evidence of any offender screened by the Appellant.
(b) The testimony of the PW1 is largely an opinion evidence, inadmissible vide Section 69 of the Evidence Act, 2011.

(c) The PW1’s evidence, though not helpful to the prosecution, was nonetheless thoroughly discredited during cross-examination.
(d) Exhibits A & A1 also relied upon by the trial Judge does not confess or admit any of the elements of the offence.
(e) None of the elements of the offence under Section 168(1) of the Penal Code was proved.
(f) The evidence of the DW2 on this point was never considered, mentioned or let alone evaluated or appraised against the very poor evidence of the prosecution.

It is for these reasons here above that Counsel urged this Court to interfere with the findings and evaluate the evidence led since the trial Judge abdicated his responsibility to do so. Counsel also urged the Court to hold that the learned trial Judge was wrong to have convicted the Appellant on this count when there was no evidence establishing any of the elements of the offence charged. In addition, Counsel urged the Court to hold that the prosecution woefully failed to discharge the onus placed on them to prove this Head of the Charge beyond reasonable doubt and to set aside the Appellant’s conviction and sentence and discharge and acquit him

on the count. Finally, Counsel urged the Court to resolve this issue in favour of the Appellant, set aside his conviction and sentence and return a verdict of acquittal on this count also.

RESPONDENT:
SOLE ISSUE:
“Whether the prosecution has proved its case beyond reasonable doubt as required by the law on the whole four counts charge?”

The submission of learned Respondents Counsel is that it is the duty of the prosecution to prove the charge against the Appellant/Accused person beyond all reasonable doubt though not beyond all shadow of doubt, as it was held in the cases of: DANJUMA vs. STATE (2019)EJSC (VOL.117),160 S.C., AKOGWU vs. THE STATE (2018) EJSC (VOL. 80) 1. S.C.; MAIGARI vs. THE STATE (2015) (VOL.26) EJSC 137 SC. and SANI vs. THE STATE (2015) (VOL.20) 42 SC. See also the provision of Section 135 of the Evidence Act, 2011.

Learned Counsel also submitted that the law is well settled, that the guilt of the Appellant/Accused can be prove by any of the following ways,
1. Confessional Statement of the Accused;
2. Circumstantial Evidence; and/or
3. Evidence of an eye witnesses.
See the cases of:

Adelani vs. STATE (2018) EJSC (VOL. 82) 1 SC.; IGBIKIS vs. STATE (2017) EJSC p.75 PARA F.

Counsel next contended that in its bid for the Prosecution to prove the aforementioned Charge, the Prosecution called four (4) witnesses and tendered 4 exhibits while the Appellant/Accused testified in his defense and called a witness. Counsel further contended that for the Prosecution to prove the first Head count, the Prosecution adopted the requirements of the law canvassed and argued by the defense at the trial. According to Counsel, by the evidence of PW1, Exhibits A and A1 and that of DW2, it is evidently clear that the Appellant not only met Buhari General personally, but that he also had regular contacts with him even by his own evidence.

As far as Counsel is concerned, it is also settled that confessional statement is an admission made by a person charged with a crime, stating, suggesting the inference that he committed that crime. Counsel referred this Court to the provision of Section 28 of the Evidence Act, 2011. However, that for a confession to attain the strength that is sufficient to warrant conviction, it must be direct, positive and unequivocal admission

of the crime charged. And where the making of the confession was denied it must be supported by other evidence outside the confession that suggest it was; (1) truthful and (2) the accused had the opportunity of committing the offence. Counsel referred to the cases of: FABIYI vs. THE STATE (2015) 9 SMC 51; STATE vs. GWANGWAN (2015) 9 SCM 253; and LASISI vs. STATE (2013) 6 SCM 97.

Learned Counsel next argued that the Court can infer from the facts of a particular case that the Appellant/Accused did the act complained of in company with others and towards a common end. He further argued that by the entire evidence of the Prosecution witnesses and that of DW1, it is clear that the ingredients of the counts charged had been established beyond reasonable doubt.

On the 2nd count, Counsel submitted that the Respondent also adopted the requirements to be proved by the Prosecution as canvassed by the defense Counsel at the trial. He argued that by the provision of Section 317 of the Penal Code, it must be shown that the property received was stolen. Counsel said that the PW2 in his testimony confirmed that the cows received were stolen and same had been

identified by the owners in his presence to have been part of their rustled cows; but that when the Appellant arrived at the Mafara Cattle Market he tried all he could to destroy the issues not to allow same to be reported to police or any of the security agencies.

Counsel also referred to the evidence of the PW1, which undoubtedly confirmed that he had no knowledge of the status of the cows. Furthermore the evidence of PW2 and PW3 are to the effect that those cows were for the Appellant. Learned Counsel further submitted that the alleged owner as claimed by the Appellant was neither called by him nor was the alleged unknown owner of the cows brought before the PW1 and PW2. Furthermore, PW1 in his evidence, unequivocally confirmed a telephone conversation between the Appellant and PW2.

The contention of Counsel is that the receiver of stolen property need not be in physical possession of such property and that it would suffice if the receiver exercised control over such property through his agent or servant as in the present case. On this note, Counsel argued that the 1st and 2nd ingredients of the offence can be said to have been established, while

on the 3rd and 4th elements it is argued that the evidence of the PW4 added more weight that those cows were bought from Buharin Daji/General, the Leader of the armed bandits.

In addition, Counsel argued that going by the evidence of PW1, PW2, PW3 and DW1 the knowledge or belief of the accused person receiving those cows can be inferred as it is the duty of this Court to make such inferences. See the Case of: SHAZALI vs. THE STATE (1988) 12 SC. (PT.11) 58. See also Sections 20, 316 and 317 Penal Code (Pages 33-40, 44-45 of the Record refers).

As far as the 3rd head count is concerned, Counsel told Court that the Respondent also adopted the elements argued and canvassed by the defense Counsel and that the admitted Exhibits A and A1 have no doubt established this very count as on it alone. Counsel therefore argued that the trial Court was therefore right in convicting and sentencing the Appellant. Counsel referred to the case of SHAZALI vs. THE STATE (Supra), where the Supreme Court is of the opinion that where the accused person’s statement consists of part admission and part denial that the statement, is admissible not only as to facts

admitted but also as to facts denied.

Counsel submitted that the evidence of DW2 (the Appellant) is of much relevance to prove this count. (Pages 54-56 of the Record refer). Furthermore Counsel submitted, that the PW1 and PW4 testified to the effect that the accused had agreed to accept One Million Naira and he accepted part of the money from the PW4 with a view to securing bail of one Umma Garba or her release from the hands of the Department of the State Security Service, Zamfara State Command and part of the denial of the accused that he did not discuss this issue with the head of the Department of the State Security Service, does not avail him. See Exhibits A and A1 and the Case of:MAJOR AMACHREE vs. THE NIG. ARMY (2003) 3 NWLR (PT. 807) 256.

In respect of the 4th count, Counsel submitted that the Respondent uniformly adopted the elements canvassed by the defense and that during Cross examination of the DW2, it was confirmed that he went to Buhari Daji/General then personally on his own prior to his official engagement during the second visit. It was therefore further submitted that the nefarious act of Buhari general/Buharin Daji and his

co-armed bandits for the past 3 to 4 years are within the knowledge of the Appellant. See Section 124 of the Evidence Act, 2011.
On the whole, Counsel urged the Court to hold that the Prosecution has proved its case in line with the provisions of Section 135 of the Evidence Act, 2011 and resolve the sole issue for determination in favour of the Respondent and against the Appellant.

RESOLUTION OF APPEAL
The first issue in this Appeal queries the competence of the Third Head of the Charge on the grounds of whether same discloses any offence under Section 168(1) of the Penal Code to clothe the Court below with the jurisdiction to try and convict the Appellant there-under. The contention of learned Appellant’s Counsel in arguing this issue, is that the Third Head of the Charge under which the Appellant was tried and convicted did not disclose the essential ingredients of the offence under Section 168(1) of the Penal Code to enable the Court below assume jurisdiction to try the Appellant there-under. For this reason, Counsel argued that the third head of the Charge is incompetent for non-disclosure of the essential ingredients of the offence

of taking gratification to screen an offender from punishment.
Counsel cited the case of TIMOTHY vs. FEDERAL REPUBLIC OF NIGERIA (2008) All FWLR 1136 at 1152 and urged this Court to follow its decision in this case and hold that the Third Head of the Charge has not disclosed the ingredients of the offence of taking gratification to screen an offender from punishment contrary to Section 168(1) of Penal Code as he was charged and convicted at page 66 lines 5 – 8 of the printed record. See also REMI OLOWOYO vs. THE STATE (2012) WRN 113 at l31 -132. A quick search conducted on the printed record of Appeal showed that the Appellant is seeking to take advantage of the nature of the charge sheet for the first time here on Appeal and did not do so during the trial at the Court below.
The attitude of this Court in all such cases coming before the Court for the first time on Appeal is as encapsulated in the judgment of this Court in the case of DANIEL PETER vs. THE STATE (2013) LPELR-20302 CA, where this Court per OGUNWUNMIJU, JCA had this to say on the subject;
“For an Appellant to take the benefit from any defect in a charge, he has the

duty/burden to prove to the satisfaction of the Court at any stage of the case, that the error or omission on the face of the charge had misled the accused/Appellant during the trial and had also led to a miscarriage of justice during the trial. The error or omission in the charge will be regarded as an irregularity which is not fatal to the proceedings. See JOHN TIMOTHY vs. FRN in suit No: SC 129/2007 delivered on 15-6-2012 by the Supreme Court. Also see YABUGBE vs. COP (1992) 4 NWLR (PT. 232) 153 at 172 and 176.”
Arising from the foregoing and in the considered opinion of this Court, in seeking at this stage to take advantage or benefit of any defect, error of omission in the charge sheet is a rather belated effort, which absolutely has no hope of success. Here, it is not as if it has been canvassed or contended that the Appellant was not represented by Counsel at the Court below or that he stood the trial entirely without the services of a defence Counsel. The issue therefore, as it concerns the issue of an irregularity in the charge is clearly of no moment in this Appeal and it is accordingly resolved against the Appellant.

In respect of the second issue nominated for the determination of this Appeal, dealing with the question of whether it was proper to have convicted the Appellant in the first place, when the Court placed reliance on the testimony of the PW1 when no extra-judicial statement of the said PW1 as a witness, in breach of the Appellant’s fundamental right to fair hearing, was attached to the proofs of evidence filed and served on the Appellant. The contention of Appellant’s Counsel indeed, is that under Section 36(5) (b) of the Constitution of the Federal Republic of Nigeria 1999, the Appellant enjoys a fundamental right to be given adequate time and facilities for the preparation of his defence and that the failure to attach the extra-judicial statement of the PW1 was a breach of that right since the Appellant was kept in the dark as to what to expect from the witness, and so denied his right to fair hearing.

Clearly the grouse of the Appellant under this issue is the allegation of a denial of right to fair hearing when the Court below believed the evidence of the PW1 in convicting the Appellant whereas the extra-judicial statement of the said PW1 was visibly missing

in the proofs of evidence served on the Appellant as an accused person. It is important to just quickly draw the curtain on this issue without generally mincing words, that all the Court really owes a party appearing before it and standing trial for one offence or the other is the provision of an enabling/probably conducive environment for the accused person to ventilate his grievances and/or defence in a given matter. When once the Court does that it will be almost uncharitable for a party to turn around and accuse the Court of a denial of a right to fair hearing. The position of the law, settled as it were is that in such a situation, where a person is offered all the opportunities to take advantage, but fails to so do in projecting his rights in the best way he can, is said to have waived such rights and cannot be further heard to complain. See the case of ODULAMI vs. N. A. (2013) 12 NWLR (PT. 1367) 20; NWEKE vs. THE STATE (2017) NWLR (PT. 1587); EZE vs. FRN.
The case of the Appellant in this case who was duly represented by competent Counsel at the time of the trial is clearly nothing, but one of a good example of an abandonment of rights or better

still, a waiver of rights. This readily brings to mind the observations of the late sage, TOBI, JSC in the case of ADEBAYO vs. ATTN-GEN OGUN STATE (2008) 7 NWLR (PT. 1085) 201 AT 221, where the apex Court had this to say;
“The fair hearing provision in the Constitution is the machinery or locomotive of justice, not a spare part to propel or invigorate the case of the user. It is not a casual principle of law available to a party to be picked up at will in the case and force the Court to apply it to his advantage. On the contrary, it is a formidable and fundamental Constitutional provision available to a party who is really denied fair hearing because he was not heard or that he was not properly heard in the case.”
Against the backdrop of the foregoing, it does not lie in the mouth of the Appellant in this case at this ninety-ninth (99th) hour to cry foul and allege the breach of some illusory rights of his to a fair hearing when he was represented by Counsel and did nothing to draw the attention of the Court below on the issue. This Court clearly identifies with the words of this Court per OGBUINYA, JCA in the case of ADEOYE ADEKUNLE vs. THE STATE

(2018) LPELR-45386 CA, where the learned Court had this to say on the subject, thus:
“In effect, the Appellant’s inviolable/inalienable right to a fair hearing was not eroded/curtailed by the lower Court. Fair hearing, therefore, is not available to the Appellant and he cannot harness from the sanctuary of the benefit provision of Section 36 (6) (b) and (d) of the Constitution as amended.”

This issue is once again resolved against the Appellant.

In respect of the third issue nominated for the determination of this Appeal, dealing with the question of whether, or not the Prosecution proved the Second and Third Heads of the Charge beyond reasonable doubt and whether the trial Court properly evaluated the evidence before it, Appellant’s Counsel contended that the Prosecution failed to discharged the burden of proof in respect of the Second and Third Heads of the Charge. The position of the law is that under the provision of Section 317 of the Penal Code, it must be shown that the property said to have been received was indeed stolen property. The evidence of the PW2 in his testimony on this issue unmistakably

confirmed that the cows received were stolen and that same had been identified by the owners in his presence to have been part of their rustled cows.
The Appellant who in defence claimed that the said cows belonged to other persons whom he referred to as the alleged owners, were neither called by him nor were the so-called alleged owners of the cows brought before the PW1 and PW2. It is important also to take special note of the evidence of the PW1, who unequivocally confirmed a telephone conversation between the Appellant and PW2 on the issue. This Court is in agreement with learned Respondent’s Counsel that a receiver of stolen items could also constructively be in possession and need not be in physical possession of such property if the receiver exercises control over such property through his agent or servant as in the present case.
By that way, the 1st and 2nd ingredients of the offence can be said to have been established, while on the 3rd and 4th ingredients the evidence of the PW4 can be seen to have added more weight to the fact that those cows were bought from the dreaded “Buharin Daji/General”, who is the alleged Leader

of the armed bandits. In all, however, a cursory look at the evidence of the PW1, PW2, PW3 and DW1, will quite naturally show clearly that the knowledge or belief of the accused person as having received those cows, can easily be inferred in this case as it is the duty of the Court to make such inferences in all such cases as in the instant one. See the Case of: SHAZALI vs. THE STATE (1988) 12 SC. (PT.11) 58. See also Sections 20, 316 and 317 Penal Code (Pages 33-40, 44-45 of the Record refers).

As far as the 3rd head of the count is concerned, it is rather clear that the admitted Exhibits A and A1, no doubt established this very count, without more. The settled position in all such cases where the accused person’s statement to the Police consists of part admission and part denial, the said statement is admissible not only in establishing facts admitted, but also in establishing facts denied. See the case of SHAZALI vs. THE STATE (Supra). In addition to these, the evidence of the DW1 (the Appellant) is of sufficiently relevant to prove this count. (Pages 54-56 of the Record refer). Perhaps, more cogent in this regard, is the evidence of the PW1 and

PW4 who testified to the effect that the Appellant agreed to accept One Million Naira and even accepted part of the money from the PW4 with a view to securing the release of one Umma Garba or her release from the hands of the Department of the State Security Service, Zamfara State Command.
It is instructive to note the denial by the Appellant in open Court, when he said that he did not discuss the release of persons with the head of the Department of the State Security Service, (DSS) in Zamfara State. The position here is that this denial does not in the least avail him. See Exhibits A and A1, which clearly run contrary to his evidence in Court and the Case of: MAJOR AMACHREE vs. THE NIG. ARMY (2003) 3 NWLR (PT. 807) 256.

In the final analysis, this Court is unable to agree with the Defence that the Prosecution did not proved its case against the Appellant beyond reasonable doubt and in line with the provisions of Section 135 of the Evidence Act, 2011. The Appeal therefore fails and it is accordingly dismissed. Consequently, the judgment of the High Court of Zamfara State, Gusau Judicial Division, in Charge No: ZMS/GS/15c/2016 delivered on the

27-3-2017, Coram B. M. SHINKAFI, J is hereby affirmed.

ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the privilege of reading before now the lead judgment just delivered by my learned brother, Oho, JCA. I have nothing more to add to it. I fully agree with the reasonings and conclusion of my learned brother that this appeal lacks merit. I abide by the consequential order affirming the judgment of the lower Court delivered on 27th March, 2017 in charge No. ZMS/GS/15C/2016.

ABUBAKAR MAHMUD TALBA, J.C.A.: I have read the draft of the judgment just delivered by my learned brother, FREDERICK O. OHO JCA, and I entirely agree with his reasoning and conclusions in dismissing the appeal. I have nothing to add to a well written judgment.
I abide by the consequential orders made in the lead judgment.

Appearances:

C. EZE, Esq. For Appellant(s)

SIRAJO ABDULLAHI, ESQ. (D.C. L. Ministry of Justice, Zamfara State) For Respondent(s)