MABUDI v. STATE
(2022)LCN/17044(CA)
In The Court Of Appeal
(YOLA JUDICIAL DIVISION)
On Tuesday, September 06, 2022
CA/YL/181C/2021
Before Our Lordships:
Chidi Nwaoma Uwa Justice of the Court of Appeal
Jamilu Yammama Tukur Justice of the Court of Appeal
Mohammed Lawal Abubakar Justice of the Court of Appeal
Between
BOBI MABUDI APPELANT(S)
And
THE STATE RESPONDENT(S)
RATIO
WHETHER OR NOT AN ACCUSED PERSON CAN BE CONVICTED FOR AN OFFENCE WITH WHICH HE WAS NOT CHARGED WITH
The law is that an accused person cannot be convicted for an offence with which he was not charged no matter how well the proceedings were conducted. The situation is different from where an accused person is charged with one offence but, the evidence adduced reveals that he committed a different offence for which he might or ought to have been charged, he could be convicted of the offence which is shown to have been committed by the evidence adduced even though not charged with the particular offence. See OKABICHI & ORS VS. STATE (1975) LPELR – 2406 (SC) Pp. 20 – 22, PARAS. C – D and SIMON VS. THE STATE (2014) LPELR – 23994 (CA), USMAN VS. STATE (2015) LPELR – 40855 (CA) P.35, PARAS. B – D and UDOH VS. STATE (1993) 5 NWLR (PT. 295) 556, ODEH VS. FRN (2008) 13 NWLR (PT.1103) 1.
The Appellant’s right to fair hearing requires that he be given the opportunity to prepare his defence and be heard on the particular charge. See ADESANYA VS. F.R.N. (2012) LPELR – 7926 (CA) and OKONOFUA & ANOR. VS. STATE (1981) 6 -7, S.C. 1. The situation is also different when an accused person is convicted for a lesser offence from that with which he is charged, pleaded to and tried. See SEGUN VS. STATE (2018) LPELR – 44693 (SC) PP. 8 17, PARAS. A – C and ANDREW OGBOKA VS. THE STATE (2021) LPELR – 55338 (SC) P. 45, PARAS. D – F.
Section 36(6)(a) of the Constitution (as amended) made provision that every person charged with a criminal offence is entitled to know the nature of the offence and should be informed promptly of the offence in the language that he understands. In NGGILARI VS. STATE & ORS (2017) LPELR – 42985 (CA) P. 68, PARAS. A – B, his Lordship, Omoleye, JCA on whether an accused can be convicted for an offence other than that charged held thus:
“The law is trite that a person cannot be convicted for an offence with which he was not charged or in a capacity in which he was not charged.”
See FELIX VS. C.O.P. (2017) LPELR – 43313 (CA) P. 30, PARAS. C –E, MUHAMMED VS. STATE (2020) LPELR – 50770 (CA) PP. 7 – 13, PARAS. F – A and CHIWOBI VS. F.R.N. (2019) LPELR – 47239 (CA) PP. 36 – 38, PARAS. A – D. PER UWA, J.C.A.
THE POSITION OF LAW ON THE ESSENCE OF RECORDING AND TENDERING THE STATEMENT OF AN ACCUSED PERSON IN THE LANGUAGE HE UNDERSTANDS
The essence of recording and tendering the statement of an accused person in the language he understands is to ensure the correctness or accuracy of the said statement. See HAMZA VS. STATE (2019) LPELR – 47 858 (SC) 28. A – D, OLANIPEKUN VS. STATE (2016) LPELR – 4044 (SC) 8, B – D, ASUQUO VS. STATE (2016) LPELR – 40597 (SC) 15 – 16, E – D and OLALEKAN VS. STATE (2001) 18 NWLR (PT. 746) 793. In ADAMU VS. STATE (2019) LPELR – 46902 (SC) 12 – 13, PARA. A, his Lordship Kekere – Ekun, JSC stated the position of the law thus:
“In the instant case, it is argued on behalf of the Appellant, that being illiterate in English Language, for his confessional statement to have been properly before the Court for consideration, both the English and Hausa versions ought to have been tendered. In order to ensure the correctness and accuracy of a statement made by an accused person and to protect his right to fair hearing guaranteed by Section 36 (6) of the 1999 Constitution, as amended, where he volunteers a statement in a language other than English Language, which is the language of the Court, the statement in the original language in which it was recorded as well as its translation into English Language must be tendered in Court. It affords the accused person the opportunity to challenge in Court if the need arises, his statement as originally recorded or its translation. It enables the Court to be satisfied that it is his true statement. For this reason, it was held by this Court that the recorder of the statement as well as the interpreter must be produced in Court as witnesses; otherwise the statement remains hearsay and inadmissible in evidence. See FRN VS. USMAN (2012) 8 NWLR (PT. 1301) 141 at 159 – 160 D –B, 161 C-D; 163 C-H; NWAEZE VS. THE STATE (1996) 2 NWLR (PT. 428) 1 at 20, QUEEN VS. ZAKWAKWA (1960) VOL. 1 NSCC 8 at 9.” PER UWA, J.C.A.
CHIDI NWAOMA UWA, J.C.A. (Delivering the Leading Judgment): The appeal is against the judgment of the High Court of Adamawa State, presided over by Abdul-Azeez, J. (as he then was) delivered on February, 10, 2021 in case No. ADSY/16C/2017 (hereafter referred to as the trial Court) in which the Appellant was the 4th Defendant.
The trial Court convicted the Appellant for the offences charged under counts 1, 2, 3 and 4 of the information filed at the trial Court. It was alleged that count 1 was not specifically mentioned but, that the trial Court convicted the Appellant “as charged”. It was made out that counts 1 – 3 bordered on conspiracy to commit armed robbery, while count 4 bordered on illegal possession of firearms.
The background facts are that there were six defendants that stood trial over a five count information. The six defendants stood trial under counts 1 – 3, the 1st Defendant alone was charged under count 4 (Illegal Possession of Firearms) while the 6th defendant alone was charged under count 5 (Illegal Possession of Firearms).
It was made out that the Appellant was arraigned and pleaded not guilty to counts 1 – 4 of the information. It was alleged by the Respondent that the Appellant and five other Defendants committed two robberies, one on 29th August, 2015 and the other on 31st August, 2015. In proof of her case, the Respondent called eight witnesses, PW1 – PW8.
The PW1 (Chief Uduma) testified that he was able to identify the Appellant 2nd and 5th Defendants in respect of the alleged robbery of 29th August, 2015. It was made out that the PW2 (Fadana Baba) testified that he was informed that some robbers mounted a roadblock, he did not witness any robbery incident, PW4 (ASP Samuel Kaletipwa) was said to have recorded the alleged confessional statements of the 1st and 6th Defendants, while the PW5 (Abba Jabo) recorded the alleged confessional statements of the 2nd and 3rd Defendants. The PW6 (Inspector Abdullahi Yakubu) recorded that the Appellant, the PW7 (Woman ASP Nora Micloth) recorded the alleged confessional statement of the 5th Defendant while the PW8 (Inspector Williams Joshua) is the Exhibit Keeper at the State CID, Yola.
After a trial within trial conducted by the trial Court, the alleged confessions were tendered as follows:
(a) The Appellant’s statement admitted in evidence and marked Exhibits D1 – D4;
(b) The 1st Defendant’s statement admitted and marked as Exhibits A1 – A8;
(c) The 2nd Defendant’s statement admitted in evidence and marked as Exhibits B1 – B4;
(d) The 3rd Defendant’s statement admitted in evidence and marked as Exhibits C1 – C4;
(e) The 5th Defendant’s statement admitted in evidence and marked as Exhibits E1 – E3 and
(f) The 6th Defendant’s statement admitted in evidence and marked as Exhibits F1 – F6.
The Appellant testified in defence and tendered no Exhibit, denied committing any of the offences charged, testified that he was forced and tortured to say that he committed the alleged offences. On the alleged confession of the Appellant in Exhibits D1 – D4, the trial Court held that the prosecution proved its case beyond reasonable doubt the guilt of the Appellant in respect of the offences charged. The Appellant was convicted for the offences charged under counts 1 – 4 of the information. It was made out that the Appellant was not charged under count 4 of the information but, was convicted on count four (4), pages 7 and 291 of the printed records of appeal. The Appellant dissatisfied with the decision of the trial Court, appealed to this Court.
The Appellant formulated the following two (2) issues for the determination of the appeal thus:
1. “Considering that the trial Court convicted and sentenced the Appellant for an offence with which the Appellant was not charged, is the judgment not a nullity? (Distilled from Grounds 1 and 2 of the Notice of Appeal)
2. Was the trial Court not wrong when it held that the Respondent proved beyond reasonable doubt against the Appellant, the offences of armed robbery and conspiracy to commit armed robbery and convicted and sentenced the Appellant to death?” (Distilled from Grounds 3, 4, 5, 6, 7, 8, 9, 14 and 15 of the Notice of Appeal)
The Respondent on her part formulated the following two issues:
1. “Whether the learned trial Judge creditably discharged his judicial duty in considering the defence raised by the Appellant for the first time in his defence as DW1 and his lordship was justified in law in reaching the decision/conclusion. That the defence did not avail the notice of Appellant (sic). (Distilled from Grounds 1 and 2 of the Notice of Appeal).
2. Whether there was legally admissible evidence before the trial Court to support the decision/conclusion of the learned trial judge that the respondent had proved the guilt of the appellant on the (5) count charges beyond reasonable doubt. (Distilled from Grounds 3, 4, 5, 6, 7, 8, 9, 14 and 15 of the notice and grounds of appeal).”
In arguing the appeal, the learned counsel to the Appellant Fidelis Adewole Esq., adopted and relied on his brief of argument filed on 31/3/22, deemed properly filed and served on 11/5/22, as his oral submission in this appeal in urging us to allow the appeal, set aside the judgment of the trial Court, discharge and acquit the Appellant.
In arguing his issue one, it was submitted that the judgment of the trial Court is a nullity, the trial Court having convicted and sentenced the appellant for an offence with which the Appellant was not charged. It was argued that the trial Court convicted the Appellant for the offences charged under counts 1, 2, 3 and 4 of the information when the said Appellant was not charged under count 4 of the information but, was convicted on same. It was submitted that the Appellant was neither charged under count 4 nor given an opportunity to defend himself before his conviction on the said count by the trial Court. It was submitted, that an accused person cannot be convicted for an offence not charged. See SIMON EDIBO VS. THE STATE (2007) LPELR – 1012 (SC), Section 36 (6) (a) of the 1999 Constitution of the Federal Republic of Nigeria (as amended) hereafter referred to as “the Constitution”.
Further, that the Appellant was denied fair hearing and the judgment a nullity. See WALTER WAGBATSOMA VS. FEDERAL REPUBLIC OF NIGERIA (2018) LPELR – 43722 (SC), ANPP VS. INEC (2004) 7 NWLR (PT. 871) 16, DALOBA VS. RIPIYE (2010) LPELR – 4014 (CA) and UGBOJI VS. STATE (2018) 10 NWLR (PT. 1627) 346, 371, D – F. It was argued that the offence of illegal possession of firearms was not established against the Appellant at the trial in respect of the ingredients to prove same, these are:
(a) That the accused was found in possession of firearms;
(b) The firearms were firearms within the meaning of the Robbery and Firearms Act; and
(c) That the accused had no licence to possess the firearm.
See ETIM VS. STATE (2020) LPELR – 51253. It was submitted that the Appellant’s conviction on illegal possession of firearms should be set aside.
On the other hand, it was made out that the PW8, the Exhibit keeper failed to tender the alleged firearm which was argued to have been withheld by the Respondent, which if it had been produced would have been unfavourable to the Respondent. See ZUBAIRU VS. STATE (2015) 16 NWLR (PT. 1486) 504 at 526, E – F. Further, that the trial Court’s finding of guilt of the Appellant on count 4 of the information was based on the alleged confession of the Appellant contained in Exhibits D1 – D4. It was argued that the trial Court’s reliance on Exhibits D1 – D4 was erroneous and should be jettisoned from the records. It was concluded on this issue that the conviction of the Appellant on count 4 of the information which borders on illegal possession of firearms cannot be sustained. We were urged to set aside the conviction of the Appellant for the offence of illegal possession of firearms as charged under count 4 of the information, allow the appeal and set aside the judgment under issue one alone, discharge and acquit the Appellant.
On issue two, it was submitted that the burden is on the prosecution to prove the guilt of the accused person beyond reasonable doubt. See Section 36(5) of the Constitution (as amended), Section 135 of the Evidence Act, 2011, STATE VS. ONYEUKWU (2004) ALLFWLR (PT. 221) 1388, 1425 and IGABELE VS. STATE (2004) 15 NWLR (PT. 896) 314, 344. The three methods to prove the guilt of the accused person in a criminal trial were given as follows:
(a) Reliance on a confessional statement of an accused person voluntarily made.
(b) By circumstantial evidence, and
(c) By direct evidence of eye witnesses.
See FAMUYIWA VS. THE STATE (2018) 5 NWLR (PT. 1613) 515 at 534, C; (2017) LPELR 43836 (SC), IGABELE VS. THE STATE (2006) 6 NWLR (PT. 975) 100, UDOR VS. THE STATE (2014) LPELR – 23064 (SC), EMEKA VS. THE STATE (2001) 32 WRN 37, 59 and OKUDO VS. THE STATE (2011) 3 NWLR (PT. 1234) 209, 236D. It was submitted that none of the eight (8) witnesses called by the Respondent established a compelling case of armed robbery and conspiracy to commit armed robbery against the Appellant. Further, that the testimony of the PW1, PW6 and PW8 as well as Exhibits D1 – D4 did not establish the guilt of the Appellant beyond reasonable doubt in respect of conspiracy to commit armed robbery. The elements of the offence of armed robbery were given as follows:
(a) A robbery took place;
(b) The person who committed the offence of robbery was armed; and
(c) The accused was the person or one of the persons who committed the act of robbery.
See ADEKOYA VS. STATE (2012) 9 NWLR (PT. 1306) 539, TANKO VS. STATE (2009) 4 NWLR (PT. 1131) 430, ADEBAYO VS. STATE (2014) 12 NWLR (PT. 1424) 613 and IKARIA VS. STATE (2014) 1 NWLR (PT. 1389) 638. The learned counsel to the Appellant conceded that the evidence of the PW1 established that the first alleged robbery occurred which resolved the first two requirements of the offence of armed robbery. It was submitted that there was no admissible evidence that was led in respect of the second alleged robbery in that the PW2 testified in respect of a robbery that occurred on September, 31st, 2015, page 166, line 18 of the printed records of appeal. On the bindingness of the records of appeal, reference was made to BASHIR VS. AUDU (1999) 5 NWLR (PT. 603) 433 and MANG VS. IBE (2000) 14 NWLR (PT. 688) 591. It was submitted that there was no armed robbery that occurred on 31st September, 2015 as testified by the PW2 who was not an eye witness, also the evidence of the PW3 which was said to be hearsay. Further, that the PW4 – PW8 were Police Officers who were not eye witnesses, and that their evidence should be discountenanced and expunged from the record of this Court, FRN VS. SARAKI (2017) LPELR – 43392 (CA) and OLADEJO VS. THE STATE (1994) 6 NWLR (PT. 348) 101. The trial Court was said to have been in error to have relied on same.
On whether the robbers were armed, the evidence of the PW1 was conceded to the effect that the robbers were armed in the first robbery incident but, not the second and that the evidence of the PW2 – PW8 was hearsay as they did not witness the alleged incidents of armed robbery.
On whether, the Appellant was among the robbers, it was submitted that the Appellant was not linked to the alleged robberies. The PW1 testified that he could identify the Appellant, 2nd and 5th Defendants, pages 163, lines 9 – 11 of the printed records, for this reason the trial Court held that there was no need for an identification parade to verify the identification of the Appellant by the PW1. Further, that the PW1 testified that the alleged robbery incident occurred around “12 midnight” (page 164 of the printed records of appeal) and could not have clearly identified the Appellant. It was argued that the Respondent ought to have carried out an identification parade, absence of which created doubt in the Respondent’s case at the trial Court which should have been resolved in favour of the Appellant.
It was submitted that even though an identification parade is not always necessary in all cases but, it is necessary in the following cases:
(a) The accused was not arrested at the scene, and he denies taking part in the crime and
(b) Where the victim did not know the accused before the commission of the crime. See JAMES UFOR VS. STATE (2016) LPELR – 40126 (CA) and OKIEMUTE VS. STATE (2016) LPELR – 40639 (SC). It was argued that considering the time of the alleged robbery and the circumstances surrounding the said incident, the Appellant should have been properly identified. See OKOH VS. THE STATE (2008) LPELR – 8352 (CA), MUSTAPHA VS. STATE (2008) WRN (VOL. 2) 76 at 83, MARTINS VS. STATE (1997) 1 NWLR (PT. 481) 355 at 370, PARAS. B – G and GHOHOR VS. STATE (2013) ALL FWLR (PT. 709) 1061. Further, that an identification parade is essential and useful when there is doubt as to the ability of the victim to recognize the suspect who participated in carrying out the crime. It was submitted that there is no evidence that the Respondent conducted an identification parade, this has created doubt in the prosecution’s case, NWANKWO VS. THE STATE (2017) LPELR – 42756 (CA). It was argued that the trial Court was wrong to have held that there was no need for an identification parade to verify the Appellant’s identification by the PW1.
It was submitted that the PW2 – PW4 and PW6 – PW7 were not eyewitnesses, their evidence was said to be hearsay. Further, that the PW5 only recorded the alleged confessional statement of the 2nd and 3rd Defendants; pages 172 – 173 and 214 of the printed records of appeal, the PW6 recorded the alleged confessional statement of the Appellant, Exhibits D1 – D4 at pages 45 – 48 of the records. While the PW8, who was the Exhibit Keeper did not produce any Exhibit before the trial Court, which created doubt in the case of the Respondent page 218 of the printed records of appeal. It was submitted that the trial Court wrongly relied on Exhibits D1 – D4 in convicting the Appellant. It was argued that the Appellant resiled from his confessional statement which required independent corroboration distinct from the confessional statement itself; OKOH VS. THE STATE (2014) LPELR – 22589 H1 (SC), 27E – 28A, SALAWU VS. STATE (1971) NMLR 249 at 252, AKINFE VS. THE STATE (1988) 3 NWLR (PT. 85) 729 at 746, IFEDAYO VS. STATE (2018) LPELR – 44373 (SC) 32 – 33, EGBOGHONOME VS. C.O.P. (1993) 7 NWLR (PT. 306) 383, AFOLABI VS. STATE (2016) 11 NWLR (PT. 1524) 497, MOHAMMED VS. STATE (2007) 11 NWLR (PT. 1045) 303, AZABADA VS. STATE (2014) LPELR – 23017 (SC) 14G – 15D, KOPA VS. STATE (1971) 1 ALL NLR 151 and ONOCHIE VS. THE REPUBLIC (1966) NWLR 307 to the effect that where an accused person retracts his confession at the trial, the Court must look for some evidence outside the confession which would make the confession probable. See also STATE VS. MUHAMMED MASIGA (TSOLO) 2017) LPELR – 43474 (SC) 14D – 15C. It was argued that Exhibits D1 – D4 ought not to have been utilized alone to convict the Appellant. See IMEPURUNGU VS. THE STATE (2019) LPELR – 47047 (CA) and MOHAMMED VS. THE STATE (2019) LPELR – 47045 (CA) decisions of this Court and division. The learned counsel to the Appellant submitted that for a Court to rely on a retracted confessional statement, the following questions must be answered:
(a) Whether there is anything outside the confession to show that it is true;
(b) Whether the confessional statement was corroborated;
(c) Whether the statement made in the confessional statement, so far as can be tested from surrounding facts, is true;
(d) Whether the accused person had the opportunity of committing the offence charged; and
(e) Whether the confession is consistent with other facts which have been ascertained, which have been proved.
See R VS. SYKES (1913) 8 CAR, P. 233 and AKPAN VS. STATE (1992) 6 NWLR (PT. 248) 439. It was submitted that from the evidence led by the Respondent at the trial Court, all the above questions would be answered in the negative. Further, that the statement of the PW5 was translated from Hausa Language to English Language but, from Exhibits D1 – D4, no Hausa version of the statement was not tendered in evidence; AJIDAHUN VS. STATE (1991) 9 NWLR (PT. 213) 33 at 41, E – G, QUEEN VS. SAPELE (1957) SC NLR 307, UDO VS. STATE (1964) 1 ALL NLR 21, R VS. OGBUEWU (1949) 12 WACA 483 and OKORO VS. QUEEN (1960) SC NLR 292 at 136. It was submitted that the trial Court ought not to have admitted and placed reliance on Exhibits D1 – D4, AZEEZ VS. THE STATE (2005) 8 NWLR (PT. 927) 312 at 326, G – H and DURU VS. STATE (1989) 4 NWLR (PT. 113) 24.
On conspiracy to commit armed robbery, the essential elements of the offence of conspiracy were given as follows:
(a) That there was an agreement or conspiracy between the accused and others to prosecute an unlawful purpose;
(b) That in furtherance of the agreement or conspiracy; the accused took part in the commission of the robbery or series of robberies; and
(c) That the robbery or each robbery was an armed robbery.
See USUFU VS. THE STATE (2007) 3 NWLR (PT. 1020) 914 at 113 – 114H – I. It was submitted that if the essential elements of armed robbery are not established, a charge of conspiracy to commit that armed robbery will fail automatically, SALAU VS. THE STATE, (2010) LPELR – 9106 (CA) and RIBIGBOLA VS. THE STATE (2010) LPELR – 9164 (CA).
It was argued that there was no evidence of common intention between the Appellant and other persons; OKEKE VS. STATE (1999) 2 NWLR (PT. 590) 247. The ingredients of common criminal intention were given as follows:
(a) There should be at least two persons;
(b) They must have a common intention;
(c) The common intention must be aimed at the prosecution of an unlawful purpose.
(d) In the prosecution of an unlawful purpose, an offence is committed; and
(e) The commission of the offence was a probable consequence of the purposes in C and D above.
It was submitted that the Respondent did not establish in evidence that the Appellant and the other Defendants knew each other prior to the commission of the alleged incident. ALARAPE VS. THE STATE (2001) LPELR – 412 (SC). It was argued that this Court has the power to expunge the inadmissible evidence from the records. IFARAMOYE VS. THE STATE (2017) LPELR – 42031 (SC) and ALADE VS. OLUBADE (1976) 2 FRN 10 at 13. It was submitted that the trial Court was wrong to have convicted the Appellant of conspiracy to commit armed robbery. Further, that there is material contradiction in the case presented by the Respondent which should have been resolved in favour of the Appellant, MAGAJI VS. THE NIGERIAN ARMY (2008) LPELR – 1814 (SC) and AGBO VS. FRN (2013) LPELR – 22870 (CA). It was submitted that the evidence of the PW2 is unreasonable and incapable of grounding a conviction. We were urged to allow the appeal on the material contradictions in the Respondent’s case since there is no 31st September, 2015 in the Calendar. See POPOOLA VS. STATE (2013) LPELR – 21443 (CA) 12 C – G, JIMMY VS. THE STATE (2013) LPELR – 20333 (SC) and AGBO VS. THE STATE (2006) LPELR – 242 (SC). In respect of doubt in the age of the Appellant, it was submitted that from the age of the appellant, he ought not to have been sentenced to death, the trial Court found that he was a young person, page 292 of the records, GUOBADIA VS. STATE (2004) LPELR – 1344 (SC), (2004) 6 NWLR (PT. 869) 360.
The learned counsel to the Appellant conceded that proof beyond reasonable doubt does not mean proof beyond all shadow of doubt, BAKARE VS. THE STATE (1987) 1 NWLR (PT. 52) 579 and WUAM VS. AKO (1999) 5 NWLR (PT. 601) 162. It was submitted that any doubt should be resolved in favour of the Appellant, UCHE VS. STATE (2015) LPELR – 24693 (SC) at 22 – 23, G – C, JUA VS. STATE (2010) 4 NWLR (PT. 1184) 217 at 242 and JIBRIL VS. MILITARY ADMINISTRATOR OF KWARA STATE (2007) 3 NWLR (PT. 1021) 357 at 383. Further, that it is the duty of the prosecution to prove the guilt of the Appellant, ADEYEYE VS. STATE (1968) NMLR 48 and OLUWATOYIN ABOKOKUYANRO VS. THE STATE (2016) LPELR – 40107 (SC) and AIGBADION VS. STATE (2000) 7 NWLR (PT. 666) 686 at 704B. It was argued that the Appellant ought not to have been convicted on unfounded inadmissible evidence, NWOSU VS. THE STATE (1986) LPELR (2134) 1 at 21, EGBE VS. THE KING (1950) 13 WACA 105, EBRI VS. THE STATE (2004) 11 NWLR (PT. 885) 589 at 605, UKORAH VS. THE STATE (1977) 4 SC 167 at 177, OLAKAIBE VS. THE STATE (1990) 1 NWLR (PT. 129) 632 at 644 and SHEHU VS. THE STATE (2010) LPELR (3041) 1 at 10. It was submitted that an accused person is innocent until proved guilty, SAIDU VS. THE STATE (1982) 4 SC 41 at 69 – 70 and OMOPUPA VS. THE STATE (2007) LPELR (8571) 1 at 45.
On the part of the Respondent, M. A. Umar Esq., the learned Senior State Counsel II, Adamawa State Ministry of Justice in response adopted and relied on his brief of argument filed on 27th April, 2022 but deemed properly filed and served on 11/5/2022 as his argument in this appeal in urging us to affirm the conviction and sentence of the trial Court. In arguing the Respondent’s issue one, it was submitted that the Court should identify the case brought by the parties and not substitute its own case for the parties. See UDENGWU VS. UZUEGBU (2003) 12 NWLR (PT. 836) and ATOLAGBE VS. SHORUN (1985) 1 NWLR (PT. 2) 60 at P. 373. It was argued that from the evidence adduced at the trial, the Appellant’s issue one is of no moment and should be discountenanced, as it is technical and would overreach the natural and substantive justice judicially and judiciously. Further, that the Appellant is presumed innocent until the contrary is proved beyond reasonable doubt. See Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999 (as amended) and Section 135(1) of the Evidence Act, 2011 respectively. It was argued that the prosecution could establish the guilt of the Appellant through any or a combination of the following means:
1. The confessional statement of the accused person.
2. Circumstantial evidence or;
3. The evidence of an eye witness.
See ABDULLAHI IBRAHIM VS. STATE (2014) 3 NWLR (PT. 1394) 305 at 338, PARAGRAPHS D – E, DUNI VS. THE STATE (2017) 4 NWLR (PT. 1554) 1 at 24, PARAGRAPHS F – N, EMEKA VS. THE STATE (2001) 14 NWLR (PT. 734) 666 at 683 and ADIO VS. THE STATE (1986) 2 NWLR (PT. 24) 581 at 593 – 594, PARAGRAPHS F – H. It was submitted that where inadmissible evidence is inadvertently or improperly received in evidence with or without any objection, the trial Court is duty bound to expunge same from its judgment and decide on the legally admissible evidence. See KANKIA VS. MAI GEMU (2003) 6 NWLR (PT. 817) 496 at 578 – 579, PARAGRAPHS G-B, SHANU VS. AFRIBANK NIG. PLC. (2002) 7 NWLR (PT. 795) 185 at 221 – 222, SHITTU VS. FASHAWE (2005) 14 NWLR (PT. 946) 671 at 690, PARAGRAPHS E – G and OKORO VS. THE STATE (1998) 12 SCNJ at 96.
Further, that the learned counsel to the Appellant was wrong to have argued that the Appellant was not charged under count four (4) that he was convicted of, reference was made to pages 274 – 278, 285 – 287 of the printed records of appeal to the effect that the Appellant confessed or admitted to have been in possession of a single barrel gun and a double barrel pistol with the 1st Defendant. It was argued that there is no dispute that there was a robbery on the 29/8/2015 and that the robbers were armed with offensive weapons at the material time of operation. The ingredients to be proved in an offence of armed robbery were given as follows:
a. That there was a robbery or series of robberies.
b. Each or any of the robbers was armed at the time of the robbery operation.
c. That the accused was one of the robbers or had taken part in the robbery operation.
See BOZIN VS. THE STATE (1985) 2 NWLR (PT. 8) 465 AT 467 and SORBOR VS. THE STATE (2001) FWLR (PT. 78) 1077 at 1000. It was submitted that the trial Court was right to have relied on the confessional statement of the Appellant and that every defence in a criminal trial must be considered. See KENI VS. THE STATE (1992) 4 NWLR (PT. 233) 17 and LAOYE VS. THE STATE (1985) 2 NWLR (PT. 10) 832. Further, that it is difficult to prove the actual agreement in conspiracy but, it could be inferred from the surrounding circumstances. See GREGORY DABOH & ANOR. VS. THE STATE (1977) ALL NLR 148, (1977) LPELR 904.
It was argued that it is not necessary or in all instances of criminal proceedings to have an identification parade. See JIMOH VS. STATE (2012) 3 NWLR (PT. 1286) P. 144, UKPABI VS. STATE (2004) 11 NWLR (PT. 887) 439, IKEMSON VS. STATE (1989) 3 NWLR (PT. 110) 455 and IBRAHIM VS. STATE (1991) 4 NWLR (PT. 186) 399. Further, that an identification parade in the present case was not necessary because the identity of the accused person was not in dispute. See EGWUMI VS. STATE (2013) 2 SC (PT. 111) P. 119, AGBOOLA V. STATE (2013) 5SC P.1 and BONIFACE ADONIKE VS. THE STATE (2015) 1 SCNJ PG. 157.
On the alleged discrepancy in respect of the evidence of the PW2 as to the date of the incident being 31/9/2015, it was argued not be material and that it did not go to the root of the charge against the accused person.
It was concluded on this issue that the prosecution need not have tendered in evidence the items recovered in course of the crime. See SIMON VS. THE STATE (2017) ALL FWLR (PT. 587) 1929 at 1949, 1950.
In arguing his issue two, while placing reliance on the case of BELLO VS. STATE (2018) LPELR – 4408 (CA), it was submitted that the essential ingredients for the proof of the offence of unlawful possession of firearms is the fact of being found in possession of firearms within the meaning of the Act and the lack of licence to possess same, contrary to Section 3(1) of the Firearms Act, reference was made to the evidence of the PW4 to the effect that a single barrel locally made gun was recovered in connection with this case which he kept with the Exhibit keeper. It was argued that the Appellant did not make out that he was licensed to possess the firearms.
On the alleged lack of fair hearing, it was submitted that it was not proved by the Appellant whose duty it was to prove same. See ADEBAYO VS. A.G. OGUN STATE (2008) 7 NWLR (PT. 1085) 201. It was submitted that the trial Court accorded the Appellant fair hearing.
In respect of proof of the offence of conspiracy to commit armed robbery, it was submitted that the respondent proved same at the trial Court.
On the issue of identification parade, it was submitted that, it is not always mandatory or necessary in all cases especially when the identification of the perpetrators of the act of armed robbery is not in issue. See IBRAHIM VS. STATE (2018) LPELR – 44 256 (CA). It was concluded that all the victims of the robbery had testified and identified all the perpetrators of the crime judicially and judiciously and that there was nothing wrong with the trial Court convicting the Appellant based on his confession even if there is no corroboration.
I have examined the issues formulated by the parties, I would utilize those formulated by the Appellant in determining the appeal. The learned counsel argued that the Appellant was convicted and sentenced for an offence with which he was not charged under count 4 of the charge, thus rendering the Judgment of the trial Court a nullity. For ease of reference, I would reproduce count four (4) of the charge below:
“COUNT FOUR
STATEMENT OF DEFENCE
Illegal possession of firearms contrary to Section 27(1)(b)(i) of the Firearms Act and punishable under Section 3 of the Robbery and Firearms (Special Provisions) Act Cap. R11 Law of the Federation of Nigeria, 2004.
PARTICULARS OF OFFENCE
AFU STEPHEN on or about the 1/9/2015 in Boshikiri village in Guyuk Local Government Area of Adamawa State within the Yola Judicial Division of this Honourable Court; had possession or control of a firearm i.e. one locally made single barrel gun without a license in contravention of the Firearm Act.”
(underline mine for emphasis)
From the above, it is clear that the Appellant was not charged under count 4 of the information but, was convicted on the said count, at page 291 of the printed records of appeal. The trial Court held thus:
“Having resolved the two decoded issues in favour of the prosecution, I accordingly convict the Defendants as charged. 1st Defendant and 6th Defendants are convicted on counts (1), (2), (3), (4) and (5) respectively while 2nd, 3rd, 4th and 5th Defendants are convicted on counts (2), (3) and (4) respectively.”
(underlining mine for emphasis)
From the records of appeal, the Appellant was not charged under count (4) but rather counts 1, 2 and 3 of the information and as rightly argued by the learned counsel to the Appellant, the Appellant was not given any opportunity to defend himself on count (4). The law is that an accused person cannot be convicted for an offence with which he was not charged no matter how well the proceedings were conducted. The situation is different from where an accused person is charged with one offence but, the evidence adduced reveals that he committed a different offence for which he might or ought to have been charged, he could be convicted of the offence which is shown to have been committed by the evidence adduced even though not charged with the particular offence. See OKABICHI & ORS VS. STATE (1975) LPELR – 2406 (SC) Pp. 20 – 22, PARAS. C – D and SIMON VS. THE STATE (2014) LPELR – 23994 (CA), USMAN VS. STATE (2015) LPELR – 40855 (CA) P.35, PARAS. B – D and UDOH VS. STATE (1993) 5 NWLR (PT. 295) 556, ODEH VS. FRN (2008) 13 NWLR (PT.1103) 1.
The Appellant’s right to fair hearing requires that he be given the opportunity to prepare his defence and be heard on the particular charge. See ADESANYA VS. F.R.N. (2012) LPELR – 7926 (CA) and OKONOFUA & ANOR. VS. STATE (1981) 6 -7, S.C. 1. The situation is also different when an accused person is convicted for a lesser offence from that with which he is charged, pleaded to and tried. See SEGUN VS. STATE (2018) LPELR – 44693 (SC) PP. 8 17, PARAS. A – C and ANDREW OGBOKA VS. THE STATE (2021) LPELR – 55338 (SC) P. 45, PARAS. D – F.
Section 36(6)(a) of the Constitution (as amended) made provision that every person charged with a criminal offence is entitled to know the nature of the offence and should be informed promptly of the offence in the language that he understands. In NGGILARI VS. STATE & ORS (2017) LPELR – 42985 (CA) P. 68, PARAS. A – B, his Lordship, Omoleye, JCA on whether an accused can be convicted for an offence other than that charged held thus:
“The law is trite that a person cannot be convicted for an offence with which he was not charged or in a capacity in which he was not charged.”
See FELIX VS. C.O.P. (2017) LPELR – 43313 (CA) P. 30, PARAS. C –E, MUHAMMED VS. STATE (2020) LPELR – 50770 (CA) PP. 7 – 13, PARAS. F – A and CHIWOBI VS. F.R.N. (2019) LPELR – 47239 (CA) PP. 36 – 38, PARAS. A – D.
As also surprisingly noted and reproduced by the learned Senior State Counsel to the Respondent at pages 12 – 13 of his brief of argument, (pages 285 – 287 of the printed records of appeal) the learned trial judge in his judgment found that counts 4 and 5 which dealt with illegal possession of firearms were charges against the 1st and 6th Defendants at the trial Court – (Afu Stephen and Munbe Bala respectively), the Appellant was not charged for illegal possession of firearm and the trial Court’s finding also confirms this and it is correct. I am at one with the finding. The Appellant was charged under counts 1, 2 and 3 of the information only.
The PW1 an eye witness and a victim, in his evidence at the trial Court did not testify that the Appellant was with any firearm at the scene of the alleged incident. For the trial Court to have convicted the Appellant on the said count (4) of the information the evidence adduced must establish the offence beyond reasonable doubt. On the other hand, if the trial Court was of the view that the Appellant ought to have been charged for the offence of illegal possession, the charge ought to have been amended to include the Appellant amongst those charged under count 4. The Appellant was denied fair hearing under the present circumstances, it is a gross miscarriage of justice contrary to the provisions of Section 36(6)(a) of the 1999 Constitution (as amended). The resultant effect is that the trial Court’s conviction and sentence of the Appellant on count 4, of illegal possession of firearm is a nullity and it is hereby set aside. Issue one is resolved in favour of the Appellant.
In resolution of issue two, the Appellant was charged and convicted for the offences of conspiracy to commit armed robbery and armed robbery. I have earlier in this judgment given the ingredients required to prove each of the two offences, both parties agreed on what is to be proved. The Appellant conceded that the first robbery took place but, argued that the second alleged robbery did not take place because there is no date as 31/9/2015 as given in evidence by the PW2 but, 30/9/2015. It was contended by the learned counsel to the Appellant that the third required element to prove is that: the accused was the person or one of the persons that committed the act of robbery, which was not established.
The lower Court partly relied on Exhibits D1 – D4, the confessional statement of the Appellant recorded by the PW7, at pages 142 – 145 of the printed records of appeal. At page 163, it is on record that the Appellant as the 4th Defendant speaks Hausa. The recorder and interpreter, the PW6 (Inspector Abdullahi Yakubu) an investigating Police Officer at pages 174 – 175 of the printed records of appeal testified that he recorded the Appellant’s statement in English which he translated into Hausa language. The evidence of the PW6 was as follows:
“The 4th defendant gave me his statement in Hausa and I recorded his statement in English under a word of caution. I wrote it down in English without torture. After recording his statement I read over to his in English and interpreted same to him language he agreed to be the one who made the statement. He then thumbprinted the statement and I also countersigned as the recorder. Thereafter I took him before our sectional head Asp. Suleiman Yahya who endorsed the 4th Defendant statement. After he read over to the 4th Defendant and interpreted same to him in Hausa language of which he understood he accepted making the confessional statement and thumbprinted the statement and Asp. Suleiman Yahya counter signed.”
From the records of Court, the Appellant thumb printed below the cautionary words and at the end of his statement, confirming his level of literacy or otherwise. On the face of the statement, it is clear that the statement was recorded in English and translated into Hausa language as stated by the PW7. At page 283 of the printed records of appeal, the trial Court held that from the confessional statement of the Appellant, Exhibits D1 – D4, he participated in the armed robberies of 29/8/2015 and that of 31/8/2015 along Lafiya – Savannah Sugar Company Road. It was held that the prosecution established the three essential ingredients of the offence of armed robbery against the Appellant.
The learned counsel to the Appellant had argued that Exhibits D1 – D4 needed corroboration before the trial Court could act on it having been retracted by the Appellant, also that outside evidence ought to have been adduced which would have made the confession probable. I would keep these areas of submission in abeyance for now and would address these issues if need be in due course and if necessary.
The Hausa version of the statements were not tendered in evidence. I agree with the submissions of the learned counsel to the Appellant that such statement as in the present case be recorded in the closest possible language of the Appellant, which is Hausa. Further, it is the law that the statement of an accused person to the police should be written in the language in which the accused made it. In the present case, the Appellant is an illiterate, his statement was recorded in English and interpreted into Hausa. The caution was given and explained to the Appellant from English to Hausa language. The statement being confessional in nature, was read over to the Appellant before a superior officer in English and same was interpreted into Hausa language and the Appellant thumb printed. The law is that both the English and Hausa versions ought to have been tendered together. The Respondent has not given any reason for this laxity. The trial Court ought not to have utilized Exhibits D1 – D4 to hold that the prosecution had proved its case beyond reasonable doubt. The statement the Appellant ought to have thumb printed is that made in the language the Appellant understood and not the English version. See YAHAYA & ANOR VS. DANKWANBO & ORS (2016) LPELR – 48364 (SC) PP. 34 – 35, PARA. D and PP. 55 – 57, PARAS. C – B. Therefore, the issue of corroboration does not arise in respect of Exhibits D1 – D4, the Appellant’s alleged confessional statement. The Hausa version not having been tendered in evidence, there was nothing to corroborate. It is noteworthy that the Appellant thumb printed the English version of his statement which is not the language he speaks and most likely did not understand the contents of what he thumb printed.
The Respondent made a fundamental blunder by not tendering the Hausa version of the Appellant’s statement to the police. It was the duty of the Respondent to have ensured that the English and Hausa versions were tendered in evidence before the trial Court, the Respondent failed to do so. The Apex Court has in the past emphasized the position of the law to the effect that the statement the witness (Appellant in this case) ought to have thumb printed or signed is that made in the language the Appellant understood and not the translated version. See GUNDIRI VS. NYAKO (2014) 2 NWLR (PT. 1391) 211 at 241 – 242, THE STATE VS. ALI SAIDU (2019) LPELR – 47397 (SC) and JUBRIL & ANOR. VS. INEC & ORS. (2019) LPELR – 51318 (CA). The essence of recording and tendering the statement of an accused person in the language he understands is to ensure the correctness or accuracy of the said statement. See HAMZA VS. STATE (2019) LPELR – 47 858 (SC) 28. A – D, OLANIPEKUN VS. STATE (2016) LPELR – 4044 (SC) 8, B – D, ASUQUO VS. STATE (2016) LPELR – 40597 (SC) 15 – 16, E – D and OLALEKAN VS. STATE (2001) 18 NWLR (PT. 746) 793. In ADAMU VS. STATE (2019) LPELR – 46902 (SC) 12 – 13, PARA. A, his Lordship Kekere – Ekun, JSC stated the position of the law thus:
“In the instant case, it is argued on behalf of the Appellant, that being illiterate in English Language, for his confessional statement to have been properly before the Court for consideration, both the English and Hausa versions ought to have been tendered. In order to ensure the correctness and accuracy of a statement made by an accused person and to protect his right to fair hearing guaranteed by Section 36 (6) of the 1999 Constitution, as amended, where he volunteers a statement in a language other than English Language, which is the language of the Court, the statement in the original language in which it was recorded as well as its translation into English Language must be tendered in Court. It affords the accused person the opportunity to challenge in Court if the need arises, his statement as originally recorded or its translation. It enables the Court to be satisfied that it is his true statement. For this reason, it was held by this Court that the recorder of the statement as well as the interpreter must be produced in Court as witnesses; otherwise the statement remains hearsay and inadmissible in evidence. See FRN VS. USMAN (2012) 8 NWLR (PT. 1301) 141 at 159 – 160 D –B, 161 C-D; 163 C-H; NWAEZE VS. THE STATE (1996) 2 NWLR (PT. 428) 1 at 20, QUEEN VS. ZAKWAKWA (1960) VOL. 1 NSCC 8 at 9.”
The Respondent did not explain why the Hausa version of the Appellant’s statement was not tendered along with the English version where the PW6 was the recorder and interpreter who also investigated the matter. The non-tendering of the Hausa version of the Appellant’s statement is fatal to the case of the Respondent. The trial Court relied on the English version, Exhibits D1 – D4 in convicting the Appellant who did not speak English and an illiterate, this clearly exhibits lack of fair hearing as guaranteed under Section 36 (6) of the 1999 Constitution (as amended). The resultant effect is that Exhibits D1 – D4 ought not to have been relied upon, it is hereby discountenanced.
From the records of appeal, the trial Court did not convict the Appellant based on Exhibits D1 – D4 alone as alleged by the learned counsel to the Appellant. No doubt, the PW1, an eyewitness and a victim linked the Appellant with the offences under counts 1, 2 and 3 of the charge, testified that he identified the Appellant at the scene of the crime and that the Appellant participated in the alleged robbery, pages 163 – 164 of the printed records of appeal in respect of the robbery of 29/8/2015. The PW1 (Chief Uduma) testified thus:
“I live at Jambutu, I am a businessman, yes I know three of the accused persons. I know accused persons No. 2, 4 and 5 herein. On the 29/8/2015 we went for a meeting at Makurdi we reached Gombe and I and one Kalu and others boarded a starlet 5 of us when we came to Savannah we met a blocked gate and the driver was about reversing but the 2nd Accused person brought gun and wanted to fire so I asked the driver to stop. Then we were directed to lie down. Then we were directed to bring out all we have in our pockets so in my case I gave them the sum of N15,000 and one Motorola handset. Later on we were directed to lie down again and one of the accused person entered the starlet vehicle and in the process of moving the vehicle matched the hand of my friend Kalu who then stouted and I woke up to find out the 4th Accused person decided to comfort my friend Kalu by pleading that they were sorry for what happened. The 2nd Accused person threatened to shoot us but the 4th Accused person said he should not shoot anybody. We continued to lie there for a period of 3 houses (sic) before we heard noise from the main road. I was able to recognize the Accused persons because the light of the vehicle was on. My friend Kalu reported to the Police State CID and after 3 days the Accused persons were arrested and we were invited to come to the State C.I.D. we went to the State C.I.D and gave statement. Thereafter the Police brought out several suspects for identification parade. From there I was able to identify the three mentioned Accused persons. Kalu now is late.
…
It was on the 29/8/2015 that the incident of the robbery happed. It was around 12 midnight no vehicle passed throughout the 3 house (sic) of our being held by the armed robbers.”
The PW2 (Fadama Baba) part of the vigilante group that arrested the Appellant and some of his colleagues, in the process recovered a single barrel gun, locally made pistol, a dagger, bullet proof vest, military boots and uniform. At pages 166 – 167 of the records of Appeal the PW2 testified thus:
“I live at Boshikiri village Guyuk LGA I am a driver/hunter. Yes I know the Accused persons. I came to know the Accused persons as I came from Yobe where I went for peace keeping. I was lying down in my house on the 31/9/2015 some indigenous vigilante members came to my house that armed robbers had blocked the road. I woke up and told the vigilante to go and wait for me at the filling station at Boshikiri. We went to the scene of the incident and met the Accused persons who blocked the road. On reaching we divided ourselves into two groups one group made up of 2 persons each. One of members of the vigilante by name Jibrin Jatau now deceased fired a shot so the Accused persons dispersed into the farmland of guinea corn while we were on the farmland of maize. The 4th Accused after hearing gun shot came into the farmland of maize and was hiding beside a hole, from my end my partner also fired a shot. His name is Mohammed Idi. I also fired a shot and the 4th Accused person shouted and ran away to join his co-accused persons. I then directed the vigilante members to go back to the village where the Accused persons reside and surround their houses by assigning three persons to each house. On the 1st of October, 2015, we arrested all the Accused persons around 5-6A.M. I came to know the 4th Accused person because of the bullet I fired which injured him. After arresting them we took them to the Police Station at Boshikiri. We then handed them over to the military men. There was a sign of bullet on the 4th Accused person’s hand. The 2nd Accused person threatened that if they return they would kill me for arresting them. After arresting the Accused persons we recovered a single barrel gun, a locally made pistol, a dagger, there are also bullet proof vest, military boat (sic) and military uniform.
…
I did tell the Policemen at the State C.I.D. of the items recovered from the Accused persons. I know the Accused persons before the incident.”
The trial Court found that from the evidence of the PW1 an eyewitness and a victim (Chief Uduma) the Appellant was linked to the offences charged in counts 1 – 3 of the charge, page 289 of the printed records of appeal. Also, that the evidence of the PW2 who was part of the vigilante group that arrested the Appellant and some of his colleagues, recovered the arms and other military items used for the operation linked the Appellant to the armed robbery operation. The evidence of the PW2 was not challenged.
The Appellant did not also dislodge the evidence of the PW1. A conviction for the offence of armed robbery can be sustained solely on the evidence of a victim/eyewitness to the commission of the offence. In ETIM ETIM UDO VS. THE STATE (2018) LPELR – 43707 (SC) P. 22, PARAS. A-B his Lordship Rhodes – Vivour, JSC summarized the position of the law thus:
“Eyewitness evidence is always reliable evidence provided the witness is telling the truth. Such evidence is on what the witness saw. It is almost impossible to dislodge such evidence.”
See BISI VS. STATE (2021) LPELR – 56680 (SC) PP. 22 – 30, PARAS. E-A. The PW1 testified to what he saw personally. Eye witness account is one of the ways to prove the commission of a crime. The evidence of the PW1 shows that the Appellant took part in the commission of the offence charged in counts 1, 2 and 3. See UDE VS. STATE (2016) 14 NWLR (PT. 1531) 122 and OGU VS. COP (2018) 8 NWLR (PT. 1620) 134.
The law is trite that the prosecution need not call a host of witnesses to prove its case, a single credible witness is enough for a conviction, if believed by the Court. See NJOKU VS. STATE (2021) LPELR – 53076 (SC) P. 33, PARAS. A-C, IGBO VS. STATE (1975) LPELR – 1447 (SC) P.8, PARAS. E-F and ONAFOWOKAN VS. STATE (1987) LPELR – 2666 (SC) PP. 25 – 26, PARAS. F-B. The trial Court was right to have held that the prosecution need not have called a host of witnesses to prove its case. At pages 290 – 291 of the printed records of Appeal the trial Court rightly held thus:
“I wish to state that this submission is lame as the Prosecution is not bound to call host of witnesses. This is because the testimony of a single witness if credible can ground a conviction. It is also learned counsel’s submission that the prosecution’s case is built on suspicion as no evidence to sustain a conviction is led before this Hon. Court. This argument has been countered by the prosecution there is evidence led beyond reasonable doubt. I agree with learned counsel for the prosecution that it has proved its case beyond reasonable doubt to sustain conviction of the Defendants.”
I cannot fault the trial Court’s view. I hold that the prosecution proved its case against the Appellant beyond reasonable doubt in counts 1, 2 and 3 of the charge. The Appellant’s conviction and sentence in respect of counts 1, 2 and 3 of the charge is affirmed. Issue two (2) is resolved against the Appellant.
In the final analysis, having resolved issue one (1) in favour of the Appellant and issue two against the Appellant, the appeal is allowed in part.
JAMILU YAMMAMA TUKUR, J.C.A.: I read before now the copy of the lead judgment just delivered by my learned brother, CHIDI NWAOMA UWA, JCA. The issues formulated in the lead judgment have been exhaustively dealt with by my learned brother. I agree with the reasoning and conclusion that the appeal should be allowed in part. I also allow the appeal in part with nothing more to add.
MOHAMMED LAWAL ABUBAKAR, J.C.A.: I had the opportunity of reading in draft the lead judgment just delivered by my learned brother, Chidi Nwaoma Uwa JCA, and I entirely agree with his reasons that the appeal is allowed in part.
I have nothing more to add.
Appearances:
Fidelis Adewole, Esq. For Appellant(s)
M. A. Umar, Esq. Senior State Counsel II, Adamawa State Ministry of Justice. For Respondent(s)
