JANVIER v. STATE (2020)

JANVIER v. STATE

(2020)LCN/14439(CA)

In The Court Of Appeal

(IBADAN JUDICIAL DIVISION)

On Wednesday, July 29, 2020

CA/IB/105C/2017

Before Our Lordships:

Jimi Olukayode Bada Justice of the Court of Appeal

Haruna Simon Tsammani Justice of the Court of Appeal

Folasade Ayodeji Ojo Justice of the Court of Appeal

Between

ANUWANU JANVIER APPELANT(S)

And

THE STATE RESPONDENT(S)

RATIO

STANDARD OF PROOF IN CRIMINAL TRIALS

In criminal trials, the trite position of the law is that the Prosecution must prove its case against the accused beyond reasonable doubt.
See – Section 135 (1) of the Evidence Act 2011.
But proof beyond reasonable doubt does not mean proof beyond any shadow of doubt.
Prosecution is said to have proved its case beyond reasonable doubt when it has proved all the ingredients of the particular offence the accused is charged with. See the following cases:- ABIRIFON VS. STATE (2013) 13 NWLR PART 1372 PAGE 619.
– HASSAN VS. STATE (2017) 5 NWLR PART 1557 PAGE 1.
– SMART VS. STATE (2016) 9 NWLR PART 1518 PAGE 447.
The Prosecution can prove the commission of a crime in any of the following ways:-
(a) By evidence of eye witness i.e. direct evidence
(b) By confessional statement.
(c) By circumstantial evidence
See the following cases:- GIRA VS. STATE (1996) 4 SCNJ PAGE 259.
– EMEKA VS. STATE (2001) 16 SCNJ, EMEKA VS STATE (2001) 14 NWLR PART 734 PAGE 666. PER BADA, J.C.A.

INGREDIENTS OF THE OFFENCE OF CONSPIRACY

The Appellant in this case was charged with the offences of Conspiracy to commit Armed Robbery and Armed Robbery.
The burden of proof is on the Prosecution to prove the following ingredients of the offence beyond reasonable doubt.
(1) That there was a Robbery or series of Robberies
(2) That the said Robbery was an Armed Robbery
(3) That the Appellant was one of those who took part in the Robbery.
See the following cases:- ATTAH VS. STATE (2010) 10 NWLR PART 1205 PAGE 190.
– OSUAGWU VS. STATE (2016) 16 NWLR PART 1537 PAGE 31. PER BADA, J.C.A.

DEFINITION OF THE OFFENCE OF CONSPIRACY

Conspiracy has been defined in many decided cases to be an agreement by two or more persons to do an unlawful act or do a lawful act by an unlawful means.
See the following cases:- TAIWO OLADEJO VS. THE STATE (2018) 11 NWLR PART 1630 PAGE 238.
– BELLO OKASHETU VS. THE STATE (2016) 8 NWLR PART 1534 PAGE 1.
– NDOZIE VS. THE STATE (2016) 8 NWLR PART 1513 PAGE 126.
In BELLO VS. THE STATE (2010) 12 S.C.M PART 2 PAGE 28 AT 34. It was held among others that:-
“The offence of Conspiracy is complete once a concluded agreement exists between two or more persons that share a common criminal purpose. It is immaterial that the persons had not met each other, and concluded agreement can be inferred by what each person does or does not do in furtherance of conspiracy.”
The main substance of the offence of conspiracy is the meeting of minds of the conspirators which is hardly capable of direct proof. The offence of conspiracy is established as a matter of inference deduced from certain criminal acts of the parties concerned.
See the following cases:- PATRICK NJOVENS VS. STATE (1973) 5 S.C PAGE 17.
– MUSA VS. THE STATE (2018) 13 NWLR PART 1636 PAGE 307.
– KOLAWOLE VS. STATE (2015) 8 NWLR PART 1460 PAGE 134. PER BADA, J.C.A.

WHETHER OR NOT THE SUBSTITUTION OF LESSER OFFENCE CAN BE INVOKED IN CONVICTION FOR ROBBERY INSTEAD OF ARMED ROBBERY

On conviction for Robbery instead of Armed Robbery, the jurisprudence of the substitution of lesser offence can be invoked where a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete lesser offence, and such combination is proved, but the remaining particulars are not proved, he may be convicted of the lesser offence though he was not charged with it.
See – AHMED SALIU VS THE STATE (2018) 10 NWLR PART 1627 PAGE 251.
– OLUMIDE SEGUN VS THE STATE (2018) LPELR – 44693 (SC). PER BADA, J.C.A.

JIMI OLUKAYODE BADA, J.C.A. (Delivering the Leading Judgment): This appeal emanated from the Judgment of High Court of Ogun State of Nigeria in Ota Judicial division, in charge No: HCA/4R/2012 BETWEEN THE STATE VS (1) ANUWANU JANVIER (2) ODE OLIVER delivered on the 21st day of January, 2014 wherein the Appellant and the second accused were each sentenced to 21 years imprisonment for conspiracy to commit Robbery and Robbery.

Briefly, the facts of the case are that on 3/12/2009 at about 7.00pm the PW1 i.e. the victim who was a commercial motorcyclist picked the Appellant and his co-accused (Ode Oliver) who asked the PW1 to take them to Ikogbo Village. PW1 charged them the sum of N300.00 as the fare to which they both agreed.

However, along the way one of the passengers i.e. the accused persons asked PW1 to stop him so as to ease himself but PW1 refused to stop. Then one of the accused persons tried to take over the control of the motorcycle but PW1 did not stop. Then PW1 was slapped and also hit with a hammer.

The PW1 fell down with the motorcycle while the Appellant and his co-accused took away the motorcycle. PW1 quickly called one Ajose on

phone to come and rescue him. He informed Ajose that his motorcycle had been snatched by robbers.

Shortly thereafter the PW1 received a call from Ajose i.e. the PW2 that the robbers had been arrested and his motorcycle recovered and taken to the Police Station.

The Appellant and his co-accused were charged to Court. The Appellant in his defence testified that he did not rob the complainant i.e. the PW1. He testified that he was on his way to visit his sick father when he ran into some “OPC” men who accused him of looking like a robber they were looking for.

At the conclusion of the trial, the learned trial Judge held that the Prosecution has established the offences of Conspiracy to commit Robbery and Robbery against the Appellant and the 2nd accused. Consequently they were both sentenced to 21 years imprisonment each.

The Appellant who is dissatisfied with the Judgment of the trial Court appealed to this Court.

The learned Counsel for the appellant formulated three issues for the determination of the appeal. The issues are reproduced as follows:-
“(1) Whether the arraignment and trial of the Appellant was

unconstitutional and therefore null and void. (Distilled from Ground 1).
(2) Whether in view of the evidence adduced at the trial Court and the testimony of the witnesses for the Prosecution, the trial Judge was right to have held that a case of Robbery and Conspiracy to commit Armed Robbery had been proved beyond reasonable doubt. (Distilled from grounds 2, 3 and 5).
(3) Whether the learned trial judge rightly invoked the doctrine of recent possession in convicting the Appellant. (Distilled from grounds 4 and 6)”

The learned Counsel for the Respondent in his own case formulated two issues for the determination of the appeal. The issues are reproduced as follows:-
“(1) Whether from the totality of evidence adduced at the trial, the Prosecution has proved the offence of Conspiracy to commit armed Robbery and Armed Robbery beyond reasonable doubt against the Appellant.
(2) Whether the arraignment and trial of the Appellant was unconstitutional.”

At the hearing of this appeal on 1/6/2020, the learned Counsel for the Appellant stated that the appeal is against the Judgment of Ogun State High Court delivered on

21/1/2014. The notice of appeal was filed on 3/4/2014 and the record of appeal was transmitted to this Court on 17/3/2017. It was deemed as properly transmitted on 27/1/2020.

The Appellant’s brief of argument was filed on 29/7/2019 and deemed as properly filed on 27/1/2020.

The learned Counsel for the Appellant adopted and relied on the said brief as her argument in urging that the appeal be allowed.

The learned Counsel for the respondent on the other hand also referred to the Respondent’s brief of argument filed on 26/9/2019. It was deemed as properly filed and served on 27/1/2020. The learned Counsel for the Respondent adopted and relied on the Respondent’s brief as her argument in urging that the appeal be dismissed.

I have perused the issues formulated for the determination of this appeal by Counsel for both parties. The issues formulated for the determination of the appeal on behalf of the Respondent encapsulates the issues formulated for the determination of the appeal on behalf of the Appellant.

In the circumstance, I will rely on the issues formulated for the determination of the appeal on behalf of the Respondent.

ISSUES FOR THE DETERMINATION OF THE APPEAL
(1) Whether from the totality of evidence at the trial, the Prosecution has proved the offence of Conspiracy to commit armed robbery and Armed Robbery beyond reasonable doubt against the Appellant. (Distilled from grounds 2, 3, 4, 5 and 6).
(2) Whether the arraignment and trial of the appellant was unconstitutional. (Distilled from ground 1).

ISSUE NO 1
The learned Counsel for the appellant submitted that the Respondent failed to prove the case against the Appellant beyond reasonable doubt, she went further that the burden of proof rests squarely on the Prosecution. She relied on Section 135 (1) and (2) of the Evidence Act 2011.
She relied on the following cases:- WOOLMINGTON VS. DPP (1935) A.C. PAGE 24.
– ONAFOWOKAN VS. STATE (1987) 3 NWLR PART 16 PAGE 538.
– STATE VS. AJIE (2000) 7 SC PART 1 PAGE 24.

The learned Counsel for the Appellant also contended that where the testimony of the prosecution witnesses are such that on the whole, it is unlikely that such an incident happened, then the Court must be circumspect in accepting such evidence without independent

proof of the facts contained therein. She relied on the case of:- OLAYINKA VS. THE STATE (2007) ALL FWLR PART 373 PAGE 163, (2007) 4 SCNJ PAGE 53 AT 67.

It was submitted further on behalf of the Appellant that the trial Court erred in law when it convicted the Appellant of Robbery and went ahead to convict him of conspiracy to commit Armed Robbery.

When an accused person is convicted of a lesser offence than that for which he is charged the Court cannot then go ahead and convict him for conspiracy to commit higher offence. She stated further that if the evidence before the Court is not enough to sustain conviction on the main offence, it cannot sustain a conviction on the secondary offence.

On Conspiracy, learned Counsel for the Appellant contended that the offence is the agreement between two or more persons to commit a specific crime. She relied upon the following cases:-
– SHODIYA VS. STATE (1992) 3 NWLR PART 230 PAGE 457.
– GBADAMOSI VS. STATE (1991) 6 NWLR PART 196 PAGE 182.
– IKEMSON VS. STATE (1989) 3 NWLR PART 110 PAGE 455.
– NWANKWO VS. FRN (2003) 4 NWLR PART 809 PAGE 1.
– AITUMA VS. STATE (2006) 10 NWLR PART 989

PAGE 452.
– SHURUMO VS. STATE (2010) 16 NWLR PART 1218 PAGE 65.
– KAYODE VS. STATE (2012) 11 NWLR PART 1312 PAGE 523 AT 538.
– KOLAWOLE VS. STATE (2012) NWLR PART 1313 PAGE 104 AT 118.

The learned Counsel for the Appellant also submitted that the trial Court erred in law when it invoked the doctrine of recent possession provided in Section 149 of the Evidence Act in finding the Appellant guilty. She relied on the following cases:-
– EZE VS. STATE (1985) NWLR PART 13 PAGE 429.
– OSENI VS. THE STATE (1984) 11 S.C. PAGE 44.
– THE PEOPLE OF LAGOS STATE VS. UMARU (2014 )LPELR – 22466 (SC).

It was also submitted on behalf of the Appellant that as there was no evidence of possession whatsoever by the Appellant, the Judgment of the trial Court convicting the Appellant for the lesser crime of robbery based on the doctrine of recent possession was a misapprehension of the facts of the case which the Court was called upon to adjudicate upon. She urged that the Judgment should be overturned.

On Armed Robbery, she submitted that in order to secure a conviction, the Prosecution must prove the following beyond reasonable doubt –

(a) That there was a robbery or series of robberies.
(b) That each of the robberies was an Armed Robbery.
(c) That the accused person was one of those who took part in the Armed Robbery.
He relied on the following cases:- BOZIN VS. STATE (1985) 2 NWLR PART 8 PAGE 465.
– AFOLALU VS. THE STATE (2010) 16 NWLR PART 1220 PAGE 584.
– EKE VS. STATE (2011) 3 NWLR PART 1235 PAGE 589.
– BELLO VS. STATE (2007) 10 NWLR PART 1043 PAGE 564.

Learned Counsel for the Appellant stated that there was no evidence which showed that the Appellant took part in the Armed Robbery or that he had used any offensive weapon. She submitted that where the ingredients of an offence was not conclusively proved, any conviction by the Court of the said offence is liable to be set aside on appeal.

It was also submitted that there was no evidence that the police investigated the alibi put forward by the Appellant. He relied on the case of:- OLAYINKA VS. THE STATE (SUPRA).

It was submitted further that the failure to investigate the Appellant’s Alibi occasioned a miscarriage of Justice.
She relied on the case of –

ISA ONU VS. IBRAHIM IDU & ORS (2006) SCNJ PAGE 223.

She finally urged that this issue be resolved in favour of the Appellant.

In his response, the learned Counsel for the Respondent submitted that the Prosecution in a criminal trial is required to prove his case against an accused person beyond reasonable doubt.
She relied on the cases of – JUA VS. THE STATE (2010) 2 SCM PAGE 68 AT 70.
– JIMOH VS. THE STATE (2014) 11 SCM PAGE 238.

It was submitted on behalf of the Respondent that the Prosecution may adopt any of the following methods in proving the guilt of the accused person.
(a) By eyewitness account.
(b) By circumstantial evidence
(c) Through confessional statement.
She relied on the case of:- AWOSIKA VS. STATE (2010) 18 WRN PAGE 149 AT 157.

In proving the offence, the learned Counsel for the Respondent referred to the testimony of PW1 and PW2 on pages 32 to 36 of the Record of Appeal.

Learned Counsel for the Respondent submitted that with the testimony of PW1 and PW2, the Prosecution satisfied the burden of proof that the Appellant and the other accused robbed PW1 of his motorcycle while armed with hammer.

On Conspiracy, learned Counsel for the Respondent referred to Black’s Law Dictionary 7th Edition which defined conspiracy as an agreement between two or more partners to commit an unlawful act. The testimonies of PW1 and PW2 on pages 32 – 36 showed Conspiracy.
She relied on the following cases:-
– OSETOLA & 1 OR VS. THE STATE (2012) 12 SCM PART 2 PAGE 347 AT 363 AND 371 – 372.
– UPAHAR VS. STATE (2003) 6 NWLR PAGE 230 AT 239.
– SECTION 167 (A) OF THE EVIDENCE ACT 2011.
– SADIKU VS. THE STATE (2013) 12 SCM PAGE 146 AT 153.

Learned Counsel for the Respondent finally urged this Court to hold that the Appellant conspired with one another to rob the PW1.

RESOLUTION
In criminal trials, the trite position of the law is that the Prosecution must prove its case against the accused beyond reasonable doubt.
See – Section 135 (1) of the Evidence Act 2011.
But proof beyond reasonable doubt does not mean proof beyond any shadow of doubt.
Prosecution is said to have proved its case beyond reasonable doubt when it has proved all the ingredients of the particular offence the

accused is charged with. See the following cases:- ABIRIFON VS. STATE (2013) 13 NWLR PART 1372 PAGE 619.
– HASSAN VS. STATE (2017) 5 NWLR PART 1557 PAGE 1.
– SMART VS. STATE (2016) 9 NWLR PART 1518 PAGE 447.
The Prosecution can prove the commission of a crime in any of the following ways:-
(a) By evidence of eye witness i.e. direct evidence
(b) By confessional statement.
(c) By circumstantial evidence
See the following cases:- GIRA VS. STATE (1996) 4 SCNJ PAGE 259.
– EMEKA VS. STATE (2001) 16 SCNJ, EMEKA VS STATE (2001) 14 NWLR PART 734 PAGE 666.

In proof of the charge PW1 and PW2 testified as follows:-
“PW1- Sworn on holy bible and states in Yoruba language. My names are Akande Babatunde. I am an Aluminum fabricator. I live at Igbesa Ogun State. I know the accused persons. I remember 3rd December, 2009 on that day as at that day I was still an apprentice. My brother bought one motorcycle for me which I always use after work for commercial use.
At about 7 o’clock when I close from work, I carried the two accused persons who told me that they were going to Ikogbo village. Along the way one of them said he wants to urinate, he asked me to wait along the bush, I refused to stop him then tried to grab the control of the motorcycle from me, I still refused to stop, then he slapped me and hit me with a hammer. I charged them N300.00 as fare after hitting me with a hammer I fell down from the motorcycle and they made away with the motorcycle. I cried into the village and called one Ajose to come to my rescue.
The said Ajose with others double crossed the robbers, he took me to the Police Station and we were able to arrest one of them while the other ran into the bush.
The arrested accused

was already at the Station when I got there it was the 2nd accused that was arrested on that day. We were transferred to the Agbara Police Station with the motorcycle and later to Eleweran in Abeokuta.”
“PW2 – sworn on the holy koran and states in Yoruba language. My names are Ajose Shatiu. I live at Oshunbiyi Street Igbesa. I am an Okada rider. I know Babatunde Akande. We live together in the same area and he is also an Okada rider. I know the accused persons.
On the 3rd December, 2009 at about 9.00pm I received a call from Tunde Akande to the effect that he had been robbed of his motorcycle. I called my colleague with Okada riders and whenever we meet any okada on the road we will stop them.
When we met the stolen Okada we stopped the rider, but they did not stop hence we trimmed back and chase them, I notice that the number of the bike was that of Babatunde while they were running away one of them fell off from the motorcycle later identified the one which fell down as the 2nd accused.
We continued to chase the rider of the bike he also fell down with the bike and ran into the bush. The first man that fell off the bike

fainted and we carried him.
Babatunde had also called some of his brothers and they took the man to the Police Station while I went to pick Babatunde from where he was and brought him to the Police Station. We made statement at the Police Station.
On the following day, I went back to where we arrested the accused to pick my shoes and then I saw the hammer which Babatunde told me he was hit with. I brought the hammer to the station and by that time I got to the Police Station I was informed that the other accused person had been arrested by a night guard. The community leader came into the scene and the matter was transferred from Igbesa to Agbara Police Station.”

In his defence, the Appellant testified before the trial Court as follows:-
“1st Accused – sworn on the bible and states in Yoruba language. My names are Anuwonu Janvier. I live at seme. I am a barber I remember 4th December, 2009 on that day I was at work at seme when my brother called me that daddy was sick I left my shop to come to Igbesa to see my daddy when I got to a point where I waited to board an Okada where I saw some OPC men who said I resembled one of the

people who stole the motorcycle. I was arrested and interrogated by them. I was beaten up and taken to the Police Station. I did not know the second accused person. I met the 2nd accused person first at Eleweran Police Station. I don’t know the complainant Akande Babatunde before the time he came to give evidence in Court. I told the OPC men that I came to Igbesa to visit my sick daddy. The Police also beat me and took the money I brought for my daddy from me.”

In proof of the 1st, 2nd and 3rd ingredients of the offence, the PW1 testified before the trial Court that on 3/12/2009 at about 7.00pm the Appellant and his co-accused boarded his motorcycle and at a point along Ikogbo Village the PW1 was directed to stop by the Appellant and his co-accused which the PW1 refused.

At that point, the Appellant and his co-accused struggled with PW1. The PW1 was slapped and hit with hammer which made him to fall down from the motorcycle. The Appellant and the co-accused robbed PW1 of his motorcycle.

Although the Appellant and his co-accused were armed with hammer on 3/12/2009 at the time of robbery but under cross-examination the PW1 did not know

which of the two accused persons hit him with hammer.

The testimony of PW2 also corroborated the testimony of PW1. PW2 stated that PW1’s motorcycle was recovered from the Appellant while they were being chased by motorcyclists. PW2 was among those who chased the Appellant.

In his defence, the accused denied taking part in the robbery.

The PW1 identified the Appellant in his testimony at the trial Court and PW2 identified the Appellant as the person riding PW1’s motorcycle.

I am of the view that the Appellant was fixed to the crime by the evidence of both PW1 and PW2 therefore identification parade is unnecessary. The Appellant and his co-accused are perpetrators of the crime and it is appropriate that they have been brought to justice.

The learned trial Judge convicted the Appellant on the count of Conspiracy to commit Robbery.

NWLR PART 1534 PAGE 1.
– NDOZIE VS. THE STATE (2016) 8 NWLR PART 1513 PAGE 126.
In BELLO VS. THE STATE (2010) 12 S.C.M PART 2 PAGE 28 AT 34. It was held among others that:-
“The offence of Conspiracy is complete once a concluded agreement exists between two or more persons that share a common criminal purpose. It is immaterial that the persons had not met each other, and concluded agreement can be inferred by what each person does or does not do in furtherance of conspiracy.”
The main substance of the offence of conspiracy is the meeting of minds of the conspirators which is hardly capable of direct proof. The offence of conspiracy is established as a matter of inference deduced from certain criminal acts of the parties concerned.
See the following cases:- PATRICK NJOVENS VS. STATE (1973) 5 S.C PAGE 17.
– MUSA VS. THE STATE (2018) 13 NWLR PART 1636 PAGE 307.
– KOLAWOLE VS. STATE (2015) 8 NWLR PART 1460 PAGE 134.

In this appeal, the testimony of PW1, PW2 and the defence of the Appellant were set out earlier in this Judgment. The PW1 testified that the Appellant and his co-accused who boarded his motorcycle

robbed him of the motorcycle.

The PW2 in his testimony stated that on 3/12/2009, he received a call from PW1 that he had been robbed of his motorcycle PW2 called other Okada riders to search for PW1’s okada which was stolen.

On citing PW1’s okada, it was waved to stop but the rider did not and they were given hot chase. One of the riders in the process fell off the motorcycle, he was identified as the 2nd accused.

The chase continued before the rider i.e. the Appellant fell down with the motorcycle and ran into the bush, but he was later arrested and brought to Police Station.

The PW1 stated at the trial that the Appellant and his co-accused i.e. 2nd accused boarded his motorcycle.

The inference that could be drawn from the testimony of PW1 and that of PW2 who testified that 2nd accused was the 1st person to fall off the motorcycle while being chased and the Appellant finally fell down and both were arrested, is that there was meeting of the minds by the Appellant and his co-accused. Conspiracy between the two of them is therefore inferred.

Furthermore the testimony of the PW1 and PW2 showed that the Appellant and his

co-accused (Ode Oliver) boarded the motorcycle of the PW1 and the motorcycle was found with the Appellant and his co-accused before the Appellant dropped the motorcycle and ran into the bush.
Under Section 167 (a) of the Evidence Act 2011 –
“The Court may presume the existence of any fact which it deems likely to have happened, regard shall be had to the common course to natural events human conduct and public and private business… and in particular, the Court can presume that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen unless he can account for his possession.”
Consequent upon the testimony of the Prosecution witnesses and the defence of the Appellant this is an appropriate case in which the Court can invoke the doctrine of recent possession and conclude that the Appellant and his co-accused were the robbers who robbed the PW1 of his motorcycle and they were arrested shortly after the commission of the crime. The stolen motorcycle was found where the Appellant abandoned it before he ran into the bush. But he was later arrested.<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>

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See the following cases:- SADIKU VS. THE STATE (2013) 12 SCM PAGE 146 AT 153.
– ADESINA VS. THE STATE (2012) 6 SCM PAGE 82.

In the circumstance, I am of the view that the Prosecution has succeeded in proving that the Appellant and his co-accused conspired with each other to rob the PW1 of his motorcycle and that the PW1 was robbed of his motorcycle by the Appellant and his co-accused the 2nd accused (Ode Oliver).

The trial Court was therefore right when it held that the Prosecution proved the offence of Conspiracy to commit Robbery and Robbery beyond reasonable doubt.

Issue No. 1 is therefore resolved in favour of the Respondent and against the Appellant.

ISSUE NO. 2
Whether the arraignment and trial of the Appellant was unconstitutional.

The learned Counsel for the Appellant referred to Section 36(4) of the 1999 Constitution of the Federal Republic of Nigeria which guaranteed the right of speedy trial to every accused person.

She submitted that the Appellant was not afforded fair hearing within a reasonable time.
She relied on the following cases – OKEKE VS. STATE (2009) FWLR PART 159 PAGE 1381.
– ARIORI & ORS VS. MURAINO B.O. ELEMO & ORS (1983) 1 S.C. PAGE 13.

It was contended on behalf of the Appellant that the rationale behind the right to a speedy trial conducted within a reasonable time is to ensure that proceedings take place while evidence is available and fresh, thereby avoid prejudice and a miscarriage of Justice. She relied on the case of:-
– EFFIOM VS. STATE (1995) 1 NWLR PART 373 PAGE 507.

It was also contended on behalf of the Appellant that the Appellant was arrested on 3rd December, 2009, he was arraigned with another person on 18th April, 2013

although the information was filed in 2012. Learned Counsel stated that this is a period of over 3years from the date of his arrest.

She submitted that the period was unreasonably long and that memories could have been affected.
She relied on OBIASO & ORS VS. OKOYE & ANOR (1989) LPELR – 21609 (CA).

Learned Counsel for the Appellant submitted that it is prejudicial to the Appellant to convict him solely on the evidence of two witnesses, whose testimonies were given more than three years after the alleged offence was committed.

She went further that this amounts to a grave violation of the constitutional right of speedy trial within a reasonable time.
She urged that the issue be resolved in favour of the Appellant.

The learned Counsel for the Respondent in her response defined fair hearing as fairness.
She relied on the following cases:-
– A.G. RIVERS STATE VS. UDE (2006) 17 NWLR PART 1008 PAGE 436.
– EZECHUKWU VS. ONWUKA (2006) NWLR PART 963 PAGE 151.

It was contended on behalf of the Respondent that the trial of the Appellant started on 13th June, 2013 and ended on 3rd December, 2013 which is

a period of 8 months.

She stated further that the delay in arraignment of the Appellant as at the time he was arrested were the fault from police, Prosecution (Respondent), Appellant and the Court. He relied on the following cases:- MOHAMMED VS. KANO N.A (1968) ALL NNLR PAGE 42.
– STATOIL NIG. LTD VS. INDUCON (2012) LPELR – 7955.

Learned Counsel for the Respondent urged that the submission of Counsel for the Appellant be discountenanced and not disturb the finding and decision of the trial Court.

RESOLUTION
The learned Counsel for the Appellant submitted that the Appellant was not afforded fair hearing within a reasonable time. She relied on SECTION 36 (4) OF THE 1999 CONSTITUTION OF THE FEDERAL REPUBLIC OF NIGERIA (as amended).
Section 36 (4) provides thus-
“Whenever any person is charged with a criminal offence, he shall, unless the charge is withdrawn be entitled to a fair hearing in public within a reasonable time by a Court or Tribunal.”
In OKEKE VS STATE (2009) FWLR PART 159 PAGE 1381, the Court held among others that-
“Reasonable time depends on the nature of the case how many

witnesses testified and the number of exhibits involved.”
Fair hearing in my view is the impression or perception of a reasonable man from his own observation that justice has been done in a case. See EZECHUKWU VS ONWUKA (SUPRA); A. G. RIVERS VS UDE (SUPRA)
The question that comes to mind in this case at this juncture is – Notwithstanding the delay in arraignment of the Appellant, can one say that the Appellant had a fair hearing?
My answer is in the positive because the trial started on 13/6/2013 and ended on 3/12/2013 which is just a period of (8) eight months. In EZEALA NNAJIOFOR & ORS VS LINUS UKONU & ORS (1985) LPELR – 2056 SC PAGES 17-18 it was held among others that:-
“It is not therefore possible to lay down a fixed rule as to what “reasonable time” is in the trial of every case. Some cases are by their nature short or lengthy by reason of witnesses to be called or the length of the testimonies of the witnesses.”
In the circumstances, it could not be said that the arraignment and trial of the Appellant is unconstitutional. This issue is therefore resolved in favour

of the Respondent and against the Appellant.

In the result, I am of the view that this appeal lacks merit and it is hereby dismissed.

The Judgment of the trial Court in Charge No: HCA/4R/2012 BETWEEN – THE STATE VS. (1) ANUWANU JANVIER (2) ODE OLIVER delivered on 21/1/2014 is hereby affirmed.
Appeal Dismissed.

HARUNA SIMON TSAMMANI, J.C.A.: I had the privilege of reading before now the judgment delivered by my learned brother, Jimi Olukayode Bada, JCA.

The trial of the Appellant cannot be said to have been conducted in breach of Section 36 (4) of the 1999 Constitution of the Federal Republic of Nigeria (as amended). What is a reasonable time within the context of Section 36(4) of the Constitution has not been defined by the same constitution. Therefore, a reasonable time for that purpose will depend on the circumstances of each case. The Appellant cannot therefore take refuge in Section 36 (4) of the Constitution to nullify his trial and conviction for an offence for which his guilt has been established beyond reasonable doubt.

On that note, I have no hesitation in agreeing with my learned brother that this appeal has no

merit. It is hereby dismissed.

FOLASADE AYODEJI OJO, J.C.A.: I have read before now the judgment just delivered by my learned brother Hon. Justice Jimi Olukayode Bada JCA.

His Lordship has dealt admirably with all pertinent issues for determination in the appeal. I agree with him that this appeal lacks merit and should be dismissed. I also dismiss this appeal and affirm the judgment of the trial Court.

Appearances:

MRS. F. I. NWANKWO For Appellant(s)

MRS. O. S. OGUNBODE Assistant Chief State Counsel Ogun State Ministry of Justice For Respondent(s)