PRINCE BENEDICT BENJAMIN APUGO v. THE FEDERAL REPUBLIC OF NIGERIA
(2017)LCN/9436(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 31st day of January, 2017
CA/OW/139/2016
RATIO
EVIDENCE: THINGS COURT CHECK TO DETERMINE IF PRIMA FACIE CASE IS ESTABLISHED
To determine whether a prima facie case is established in a criminal matter before a Court, the trial Court is expected to scrutinize the charge or information, together with the accompanying statement of witnesses and other documents (if any) attached to the charge or information, i.e. the proof of evidence and consider the same to determine whether a prima facie case has been disclosed. See Abacha Vs State (supra); Grange Vs FRN (2011) 6 NCC 384. PER ITA GEORGE MBABA, J.C.A.
CRIMINAL LAW: ELEMENTS OF PROVING THE CASE OF FALSE PRETENCE
“By that law Section 1(1) (b) (c) thereof, stipulates:
“Notwithstanding anything contained in any other enactment or law, any person who by any false pretence, and with intent to defraud:
(a) Obtains from any other person
(b) Induces any other person
(c) Obtains any property, whether or not the property is obtained or its delivery is induced through the medium of a contract induced by false pretence, commits an offence under this Act
The Supreme Court, in its interpretation of that law stated the elements of false pretences, thus in the case of Onwudiwe Vs FRN (2006) 10 NWLR (pt.988) 382 at 432 to include:
(a) That there is a pretence
(b) That the pretence emanated from the accused
(c) That it was false
(d) That the accused knew of its falsity or did not believe in the truth
(e) That there was intention to defraud
(f) That the thing is capable of being stolen
(g) That the accused person induced the owner to part with the property. See also Ede Vs FRN (2001) 1 NWLR (pt.615) 502; Alake Vs State (1991) 7 NWLR (pt.205) 567. PER ITA GEORGE MBABA, J.C.A.
EVIDENCE: PRIMA FACIE EVIDENCE; DUTY OF COURT TO CHECK
having endeavored to attach a proof of evidence to the charge against Appellant, the Court was under a duty to consider the proof of evidence to see whether it disclosed a prima facie case. See Abacha Vs State (supra) at 30; Grange Vs FRN (supra) 421. PER ITA GEORGE MBABA, J.C.A.
JUSTICES
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
PRINCE BENEDICT BENJAMIN APUGO Appellant(s)
AND
THE FEDERAL REPUBLIC OF NIGERIA Respondent(s)
ITA GEORGE MBABA, J.C.A. (Delivering the Leading Judgment): Appellant was charged at the Federal High Court, Umuahia, Abia State, in charge No. FHC/UM/CR/39/2015, under Section 1(1) (b) of the Advance Fee Fraud and Other Related Offences Act, 2006 and punishable under Section 1 (3) of the same Act, on 23/6/15.
Appellant said he became aware of this case through his Counsel (who saw Appellant?s name on the cause list in Court) and he filed an application on 13/8/2015, seeking to quash the 3 Counts charge (Information). The lower Court, presided over by Hon. Justice F.A. Olubanjo, said to have been aware that Appellant had not been served with the information and notice of trial, as required by law, still ordered a bench warrant to issue against Appellant.
Appellant, by another application, filed on 9/10/2015, applied to set aside the said bench warrant, for lack of jurisdiction.
?The Lower Court, now presided over by Hon. Justice D.E. Osiagor, delivered a Ruling on the two applications (to quash the Counts of the Information and set aside the bench warrant) on 19/5/2016 and dismissed the application to quash the Information, holding that the
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application lacked merit. The Lower Court, however, held on the 2nd application, that Appellant had not been personally served with the charges and so suspended the order of Bench Warrant issued against the Appellant on 8/10/15. It ordered Appellant to appear in Court to answer to the charges on the next adjournment date, pursuant to Section 87 of the Administration of Criminal Justice Act 2015. (See pages 492 ? 493 of the Records of Appeal).
That is the decision Appellant appealed against in this appeal, as per pages 494 to 498 of the Records, disclosing Six (6) Grounds of Appeal. Appellant filed his brief of argument on 16/6/16 and distilled 3 issues for the determination of the Appeal, as follows:
(1) Whether the learned trial Judge was right in law when he held that a triable or prima facie case is (sic) established against the Appellant in the circumstances of this case? (Grounds 1, 2 and 3).
(2) Whether the learned trial Judge was right in law when he merely suspended the bench warrant issued by the Court, without jurisdiction, instead of setting it aside? (Ground 6)
(3) Whether the learned trial Judge was right in law when he
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ordered the Appellant, who had not been personally served with the Information and/or Notice of trial, to appear before the Court on the next adjournment date to answer to the charge in the circumstances of this case? Ground 5.
Appellant also filed a Reply brief on 18/10/16, upon the service of the Respondent?s Brief on him, which brief was filed on 21/9/16 and deemed duly filed on 4/10/16. In the Respondent?s brief, the Respondent raised a Notice of Preliminary Objection and argued the same on pages 4 to 11 of the Respondent?s Brief. On the main Appeal the Respondent, donated two Issues for the determination of the Appeal, as follows:
“(1) Whether from the proof of evidence filed along with the charge, there is enough evidence linking the Appellant with the Commission of the Offence to enable him stand trial.
(2) Whether the trial Court was right when it ordered the Appellant to appear before him for the purpose of his plea and trial.?
When the appeal came up for hearing on 17/1/17, the parties, through their Counsel, adopted their briefs and urged us, accordingly. The Respondent applied to withdraw the
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Preliminary Objection, which was struck out. It is obvious that Appellant did not distill any issue from the ground 4 of the Notice of Appeal. The same is therefore deemed abandoned and is hereby struck out.
Arguing the Appeal, Appellant?s Counsel, Prof. Ernest Ojukwu SAN, (with him O.O. Amuzie Esq), on issue one, queried whether Appellant had committed any offence as charged, or a prima facie case of criminal wrong doing had been made out against him, from the proof of evidence. He answered same in the negative.
He relied, for the purpose of prima facie case, on the case of Ofuani Vs Nigerian Navy (2007) 8 NWLR (pt.1037) 470 at 474, to establish the essential or vital elements or ingredients of offences charged. He submitted that in this case, the proof of evidence, the facts contained in the statement of witnesses and other documents to support the Information/Charge, clearly do not support any of the counts laid in the Information/Charge, and that they do not also disclose or establish any of the vital elements or ingredients of any of the Counts laid down, therein; that Section 1(1) (b) of the Advance Fee Fraud and Other Related Offences
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Act, 2006 under which Appellant was allegedly charged, the essential ingredients, which the evidence must disclose are: (a) false pretence; (b) intent to defraud and (c) inducement by the Appellant. He relied on Onwudiwe Vs FRN (2006) 10 NWLR (pt.988) 382 at 431 ? 432; EDE Vs FRN (2001) 1 NWLR (pt.615) 502; ALAKE Vs STATE (1991) 7 NWLR (pt.205) 567.
Counsel also relied on Section 20 of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006 for the definition of ?false pretence?. He referred us to the Power of Attorney, donated by the Appellant?s family to the nominal complainant, on pages 83, 85, 86, 93 to 96 of the Records of Appeal, and argued that the representation made by the Appellant in the proof of Evidence, specifically, recited the Abia State Government Official Gazette No. 3 page 25 of 1999, dated 27th April 1999, but the Respondent, intentionally and prejudicially, excluded the page 25 of the said Gazette that was annexed to the Power Attorney. He argued that the proof of Evidence needed to show that Appellant?s representation, including the recited basis of title from the Abia State Government Official
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Gazette, was false. He added that no single document or fact from the proof of evidence said or pointed to the fact that the above representation was false, or disclosed any of the elements of the offence, enumerated above, in the case of Ownudiwe Vs FRN (supra), to sustain the charge. Counsel said the trial Court was in grave error, when it failed to consider the entire proof of evidence as to determine whether the vital elements of the offences charged were disclosed; that had the Court done so; it would have reached the conclusion, that the vital elements of the offences charged were not disclosed.
He argued that, if, on the face of the proof of evidence, there will be need for the prosecution to bring more evidence to make a prima facie case, then the charge must be quashed as having not disclosed a prima facie case; that belief or no belief of the evidence presented at this point, is immaterial as the Court is not entitled to believe anything at this stage. Counsel said the trial Court took a contradictory position in this matter, as per page 491 of the Records (paragraph 2). He referred us to the case of Abacha Vs State (2002) Vol. 9 MJSC 1 at
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30.
Counsel referred us to the proof of evidence, particularly, the Statement of Witnesses (as per pages 93, 102, 120, 274 ? 275 of the Records, as well as pages 127 ? 129 thereof) which, according to him, showed no prima facie case was disclosed against Appellant, but that the same were completely ignored by the Lower Court, in disregard of the above decision of the Supreme Court. He argued that the trial Court, wrongly, ignored to take into consideration the above facts revealed by the proof of evidence and therefore did not, dispassionately, determine that prima facie case was not disclosed against Appellant. He relied on the case of Kanda Vs Govt. of Malaya (1962) AC 322, applied in Orisakwe Vs Govt. of Imo State (1982) 3 NCLR 743 at 758.
Counsel added that the trial Court also relied on hearsay evidence (which is inadmissible) when he quoted and used the allegation on page 491, lines 3 ? 5, to base its belief that a prima facie case had been disclosed against Appellant. He relied on ADUKU Vs FRN (2009) Vol. 4 NCC 350 at 377; Abacha Vs State (supra), Nyame Vs FRN (2010) 5 NCC 250 at 280.
?Counsel also observed that there was
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nothing in the proof of evidence, to suggest a contractual disagreement between the family of the Appellant and the nominal complainant over the sale of the plots of land in issue, contrary to the decision of the trial Court; that even if there were any contractual disagreement over the land, that could only be resolved by way of civil process, particularly taking advantage of the indemnity clauses in the contract of sale of the land ? See page 95 of the Records, paragraph 4 thereof. He said that Appellant cannot be tried for offences for which he cannot be held guilty by virtue of Section 36(8) of the 1999 Constitution and Section 23 of the Criminal Code Act; that that would amount to abuse of the Criminal Process of Court.
?On Issue 2, whether the trial Judge was right to merely suspend the bench warrant, instead of setting it aside, Counsel answered that it is beyond argument that Appellant, as at 8/10/15 (and till date) had not been served with the Information and notice of trial as required by Section 382(4) and 271(2) (b) of the ACJA, 2015, a fact which the trial judge affirmed on page 493 of the Records. He argued that it is only when summons
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have been issued and duly served and a defendant does not appear, that a bench warrant can be validly ordered/issued against him.
He relied on Section 351(1) (a) and 394 of the ACJA, 2015. He said that the provision is mandatory; that bench warrant (of arrest) cannot be issued against a party who has not been summoned and the information and notice of trial served on him; that the trial Court made that order without jurisdiction; that the Court cannot suspend an irregular order, made without jurisdiction; that a void order cannot be suspended, temporarily postponed, deferred, delayed or be kept in abeyance, for the time being. He relied on the meaning of the word ?suspend? as stated in the Black?s Law Dictionary, 9th Edition at page 1584.
Counsel submitted that the trial Court had no power to suspend the Bench Warrant, but could only set it aside, having found that Appellant had not been served with the information and notice of trial.
?On Issue 3, whether the Court was right to order the Appellant to appear before it on the next adjourned date to answer to the charges in the circumstances, having not been personally served
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with the Information and/or Notice of trial, Counsel answered in the negative.
He submitted that a Court is said to be competent or to have jurisdiction, when the subject matter is within its jurisdiction and there is no feature in the case which prevents the Court from exercising its jurisdiction, and the case comes before the Court, initiated by due process of law, and upon fulfilling any condition precedent to the exercise of jurisdiction; that any defect in competence is fatal. He relied on Madukolu Vs Nkemdilim (1962) 2 SCNLR 341 at 348; Ehindero Vs FRN (2014) 10 NWLR (pt.1415) 281 at 312. Counsel relied on Section 382(4) of the ACJA, 2015 and Section 36(6) of the 1999 Constitution, as being sine quo non to assumption of jurisdiction and competence of the Lower Court to assume jurisdiction over the case and/or to make order directing Appellant to answer to the charges; he said that service of the information is fundamental to the assumption of jurisdiction; that, where Appellant has not been served, he cannot be ordered to appear in Court and answer to charges. See Section 271(2) (b) of ACJA, 2015. Counsel added that the general power of trial Court,
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under Section 87 of the ACJA, can only be exercised in accordance with the specific provisions of Section 36(1) and (6) (b) of the 1999 Constitution, and the provisions of Section 382(4) of ACJA, 2015. Counsel noted that there was an ex-parte application before the Court by the Respondent, seeking order of Court to serve the Appellant with the Information, by substituted means, but without taking the motion, the trial Court went ahead to order Appellant to appear before it and answer to the charges; that that was akin to taking the matter, suo motu, without jurisdiction. He relied on NAF Vs Shekete (2003) MJSC 63 at 78 and 83.
Counsel said that order infringed on Appellant?s fundamental rights, guaranteed under Section 36(1) and (6) (b) of the 1999 Constitution, and relied on Ogboh Vs FRN (2002) 8 MJSC 69 at 78 ? 79.
He urged us to allow the appeal, quash the 3 Counts Information and set aside the bench warrant.
The Respondent?s Counsel, N.I. Ani Esq, (arguing the Brief settled by Joshua Saidi Esq), on Issue one, submitted that trial, at the Federal High Court, is by way of summary trial, in line with the provision of Section
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33(1) and (2) of the Federal High Court Act; that being a Court of summary trial, the proof of evidence is not necessary and so, even where proof of evidence is attached, it cannot be the basis for which a charge can be challenged on the ground, inter alia, that the proof of evidence does not disclose a prima facie case. He relied on Uwazuruike Vs A.G. Federation (2013) 10 NWLR (pt.1361) 105 at 126.
Counsel also submitted that, if we deem it necessary to consider the proof of evidence attached to the charge, that the same has sufficiently linked the Appellant with the commission of the said offence; that the offence relates to obtaining money under false pretence; that for proof to link Appellant with the offence, it must be shown on the face of the proof of evidence, the following elements:
(a) That there is a pretence which emanated from the accused;
(b) That it was false
(c) That the Accused person knew of its falsity or did not believe in its truth
(d) That there was intention to defraud
(e) That the accused induced the owner to transfer his whole interest in the property. See Ede Vs FRN (2001) NWLR (pt.695) 502.<br< p=””
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Counsel said that, from the statements of witnesses and that of Appellant, including the other documents attached to the proof of evidence, it was manifest, on the face of same, that all necessary ingredients of the offence are contained therein; that all that the trial Court needed to do, at this stage, was to find out whether there was ground to proceed. He relied on the case of Gafari Ajidagha & Anor. Vs I.G.P. (1958) NSCC 20 at 21, where it was held:
it only means that there is a ground to proceeding. But prima facie is not the same as proof, which comes later when the Court has to find whether the accused is guilty or not guilty, and the evidence discloses a prima facie case, when it is such that if uncontradicted and if believed, it will be sufficient to prove the case against the accused.?
?Counsel said what the learned silk (Counsel for Appellant) was arguing appeared to be proof beyond reasonable doubt, which should not concern the Court at this stage; that in considering whether proof of evidence discloses a prima facie case against Appellant or links him with the commission of the offence, the Court has to
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consider the proof of evidence attached to the charge; that is, the Court only has to consider the charge and the proof of evidence attached thereto and not any other document outside it. He relied on Abacha Vs State (2002) 7 SCNJ 1.
Counsel said it was not in dispute that Appellant sold the six plots of land to the victim, under the pretence that he was the lawful owner of the said plots, and in consideration of the sale, the victim parted with N36,000,000.00 (Thirty Six Million Naira), only to discover later that the said plots do not belong to the Appellant, but that the property fell on Govt. layout, designed as Railway line. He relied on pages 14 ? 16 of the Records of Appeal.
?Counsel said Appellant knew that the property did not belong to him; that the victim, through his representative, had related his frustration in the process of getting necessary documents for the development of the land sold by Appellant, and sought for other plots, other than those earlier sold, and Appellant, knowing that he had no right over the said plots, demanded for additional N4,000,000.00 (Four Million Naira) on each of the six plots, to move him to
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alternative plots, but the victim declined and demanded for refunds, which Appellant refused to make.
Counsel relied on Section 1(1) (b) of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006, to say that the fact that the transaction was premised on contract did not make it any less an offence, as it encompasses a situation:
Whether or not the property is obtained or its delivery is induced through the medium of a contract induced by false pretence commits an offence under this Act.?
Counsel said it was in consideration of this that the trial Court said:
there is nothing extra ordinary or esoteric about civil transaction having its consequences reverberating in criminal proceedings or criminal elements resonating in civil proceedings.?
Counsel submitted that the facts in the proof of evidence were not contradicted and so the Court had wondered whether in the circumstances the Court could not believe that Appellant committed the offence. He asserted that the proof of evidence had linked Appellant, sufficiently, with the offence; that the attempt by Appellant to embellish this case
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as civil, by patching some documents acquired during the pendency of the case, was a figment of his imagination, as this is not the stage to test the validity or otherwise of those documents, the appropriate time being at the trial of the case. Counsel added that the Govt. Gazette relied upon by Appellant was an afterthought. He also said that allegation of breach of right of fair hearing, under Section 36(1) of the Constitution and Section 23 of the Criminal Code Act, was founded on misconception of the law by Appellant. He urged us to resolve the issue against Appellant.
On Issue 2: Whether the trial Court was right when it ordered the Appellant to appear before him for the purpose of his plea and trial, the Respondent answered in the affirmative.
Counsel admitted that Appellant was not arraigned on 1/7/15, when the Court slated the case for plea, because Appellant had not been served with the charge, and the matter was adjourned to 8/10/15 for plea. But on that 8/10/15 a Counsel, O.O. Amuzie Esq, filed a motion on behalf of Appellant, seeking to quash the charge, on grounds, inter alia that the proof of evidence did not disclose a prima facie case
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against Appellant; that the Court then insisted that Appellant had to be in Court, and ordered the bench warrant against him, which was later suspended, upon Applicant?s motion to set it aside.
On the submission that the Lower Court had no jurisdiction to issue the bench warrant against Appellant because he had not been served with the charge, the Respondent?s Counsel answered by submitting that where a Counsel to a party intercepts Court processes on behalf of his client and takes steps by filing motion to quash the process, he (Counsel) is deemed to be acting on the instruction of his client and the Court has the necessary powers to order for the appearance of the party in Court pursuant to Section 87 of the ACJA 2015.
Counsel referred us to Appellant?s affidavit in support of the motion to quash the charge, where, in paragraphs 1 and 2 (page 141 of the Records) the deponent to the affidavit, on behalf of Appellant, said:
“(1) That I am a Legal Adviser to Prince Benedict Benjamin Apugo, who is the Appellant in this proceeding.
(2) That I make this affidavit on behalf of the said Applicant at his request and
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instructions, the facts to which I depose being formal and within my personal knowledge
Counsel submitted that, from the above deposition in the affidavit, Appellant knew of the charge in Court, but kept avoiding service and instructing his Counsel to file the application to frustrate his arraignment in Court. Counsel also relied on the affidavit in support of the motion to set aside the Bench Warrant, paragraphs 3 to 6 thereof (page 319 of the Records), to say that Appellant was aware of the charge and engaged Counsel to challenged the jurisdiction of the Lower Court over the charge, claimed to have been facing serious health challenges resulting from serious medical procedures he was going through at king Edward VIII?s Hospital, London, hence he was not in Court on 1/7/15, coupled with the fact that he had not been served with the charge, proof of evidence and other accompanying documents.
Counsel said he who comes to equity must come with clean hands; he urged us to note that the alleged medical documents (which Appellant relied on) were made on 22/7/15, whereas the case came up earlier 1/7/15. Counsel referred us to
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Respondent?s Counter affidavit on the point, wherein a copy of Newspaper showing Appellant granting press interview was annexed, to show that Appellant was healthy. He added that the role of a Counsel is to assist the Court in doing justice, and not shielding a suspect who is facing criminal trial from being arraigned. He relied on the case of Olinta and Ors Vs FRN (2008) LPELR ? 3788. He urged us to resolve the issues against the Appellant and dismiss the appeal.
Appellant reply brief emphasized on the application of the case of Abacha Vs State (2002) 9 MJSC 1 at 30, that the law is trite that once an information or charge is accompanied by a proof of evidence, statement of witnesses and other documents, the Court has a duty to consider same, to determine whether or not a prima facie case is established, see also Grange Vs FRN (2011) 6 NCC 384 at 421.
Appellant Counsel also relied on the case of Suleiman Vs State (2011) 6 NCC 220 at 243, to say that a criminal trial is not decided on passion, sentiments, conjectures of imagined analysis of what could have been, rather a judge is expected to be impartial, dispassionate and disconnected in
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the assessment of the evidence placed before him so as to do justice to the parties. He added that what this Court is to determine is the representation made by Appellant to the nominal complainant, whether same is false or not, pursuant to Section (1) (b) and (20) of the Advance Fee Fraud and Other Related Offences Act, 2006.
RESOLUTION OF THE ISSUES
I consider the three Issues distilled by the Appellant more apt for the determination of this appeal, and I think the Respondent?s Issue 2 is only an abridgment of the Appellants Issues 2 and 3, while the Issue one by both parties are in agreement with each other. I shall however, take the Issues two and three, together, as they relate to, whether the trial Court can suspend the bench warrant issued against Appellant (for his arrest), instead of setting it aside, outrightly, for want of jurisdiction to issue it (Bench Warrant), in the first place. And, whether the trial Court can order Appellant to appear before it to answer to his charge, in the circumstances.
First, Issue one: Was the trial Court right to hold that a triable or prima facie case had been established against Appellant in
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the circumstances of this case, to warrant his trial?
The rules relating to establishment of prima facie case, to warrant subjecting a citizen to go through the rigours of criminal trial, appears to aim at advancing and promoting the fundamental rights of every citizen against oppression, harassment, abridgment of his freedom and/or subjecting him to all the trauma that criminal trial entails, where such trial is not necessary. In the case of Ikomi Vs State (1986) 3 NWLR (pt.28) 340; (1986) LPELR ? 1482 (SC), the Supreme Court held:
?No citizen should be put to the rigours of trial in a criminal proceeding, unless available evidence points prima facie to his complicity in the commission of crime.?
In the case of Stanley Nwadike Vs The State (2015) LPELR ? 24550 (CA), this Court, relying on the case of Abacha Vs State (2002) 7 SC (pt.1) 1 said:
?The power of the Court to prevent abuse of the process of Court includes the power to safeguard an accused from oppression and prejudice? The process of Court must not be made to oppress a citizen so as to charge a citizen with an offence, with a view to harassing
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him.?
See also Edet Vs State (2008) 14 NWLR (pt.1106) 52 at 58, where this Court held:
?The Court has jurisdiction to safeguard an accused person from oppression or prejudice. The Court will fail in its duty, if, in the face of a defective or bad charge, it refuses to entertain an application to quash the information and hastily proceeds to set the criminal case for trial. The Court has the power and duty to stop a prosecution, which on the facts, create abuse and injustice. In the instant case the objection of the Appellant at the trial Court was on the legality or validity of the information brought against him. At the material time when the objection was raised, no prima facie case had been established, justifying the criminal trial against the Appellant
To determine whether a prima facie case is established in a criminal matter before a Court, the trial Court is expected to scrutinize the charge or information, together with the accompanying statement of witnesses and other documents (if any) attached to the charge or information, i.e. the proof of evidence and consider the same to determine whether a prima facie
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case has been disclosed. See Abacha Vs State (supra); Grange Vs FRN (2011) 6 NCC 384.
Appellant had accused the trial Court of not dispassionately considering the facts revealed in the proof of evidence and/or failure to consider the statement of the Appellant and of the witnesses as well as the attached documents, including the Power of Attorney and a government official gazette, before coming to the conclusion that a prima facie case was made out against Appellant.
At this stage it is necessary to caution that the process of seeking to establish and establishing a prima facie case to justify criminal prosecution, must not be confused with the burden of establishment of possible guilt of the Accused person, or what amounts to the ingredients of the offence charged and/or proof of the same beyond reasonable doubt. That means, in the effort to establish prima facie case, the Court must not delve into the facts and evidence needed to prove the commission of the offence. See the case of Nwadike Vs The State (2015) LPELR ? 24550 (CA), where it was held:
?The law forbids a Court delving into the substantive matter before it, yet to be
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tried, at the time of considering a preliminary objection. See the case of Kwazo Vs Railway Property Co. Ltd & Ors. (2014) LPELR ? 23737 (CA); Agbaso Vs Iwunze & Ors. (2014) LPELR ? 24108 CA; Global Fishing Ind. Ltd Vs Coker (1990) 7 NWLR (pt.162) 265; Atapo Vs Hakeem-Habeeb & Ors (1992) 16 NWLR (pt.247) 266.?
?Did the trial Court consider the proof of evidence, dispassionately, to arrive at the conclusion that there was a prima facie case against Appellant?
The 3 count charge filed against Appellant in the Information were:
(1) That you Prince Benedict Benjamin Apugo on or about the 7th day of March, 2013 in Umuahia, within the jurisdiction of the Federal High Court of Nigeria, with intent to defraud, obtained the sum of Six Million Naira (N6,000,000.00) from one Mr. Obioma Nehemiah Isiuwa when you falsely represented yourself through his agent Mrs. Adline Victor Nkwo, to be the owner of six plots of land valued at thirty-Six Million Naira (N36,000,000.00) located at the House of Assembly Road by Ochendo Bypass in Umunwulari Nkata Ibeku layout, Umuahia in Umuahia-North Local Government Area, Abia State, otherwise
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called Ogurube layout which pretence you knew to be false and thereby committed an offence contrary to Section 1 (1) (b) of the Advance Fee Fraud and Other Related Offences Act, 2006 and punishable under Section 1 (3) of the same Act.
(2) That you Prince Benedict Benjamin Apugo on or about the 7th day of March, 2013 in Umuahia within the jurisdiction of the Federal High Court of Nigeria with intent to defraud obtained the sum of Twenty Million Naira (N20,000,000.00) from one Mr. Obioma Nehemiah Isiuwa when you falsely represented yourself through his agent Mrs. Adline Victor Nkwo, to be the owner of six plots of land valued at Thirty-Six Million Naira (N36,000,000.00) located at the House of Assembly Road by Ochendo Bypass in Umunwulari Nkata Ibeku layout, Umuahia in Umuahia-North Local Government Area, Abia State, otherwise called Ogurube layout which pretence you knew to be false and thereby committed an offence contrary to Section 1 (1) (b) of the Advance Fee Fraud and Other Related Offences Act, 2006 and punishable under Section 1 (3) of the same Act.
(3) That you Prince Benedict Benjamin Apugo on or about the 7th day of March, 2013 in Umuahia
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within the jurisdiction of the Federal High Court of Nigeria with intent to defraud obtained the sum of Ten Million Naira (N10,000,000.00) from one Mr. Obioma Nehemiah Isiuwa when you falsely represented yourself through his agent Mrs. Adline Victor Nkwo, to be the owner of six plots of land valued at Thirty-Six Million Naira (N36,000,000.00) located at the House of Assembly Road by Ochendo Bypass in Umunwulari Nkata Ibeku layout, Umuahia in Umuahia-North Local Government Area, Abia State, otherwise called Ogurube layout which pretence you knew to be false and thereby committed an offence contrary to Section 1 (1) (b) of the Advance Fee Fraud and Other Related Offences Act, 2006 and punishable under Section 1 (3) of the same Act.
The proof of information attached to the Charge, among other things, carried the Petition written, by the Solicitor to Mr. Obioma Isiuwa (the Complainant) against Appellant, dated 24/3/14, (pages 6 to 8 of the Records), bank statements/certifications (pages 9 to 13 of the Records), application for certificate of occupancy ? re-investigation activities (page 14 of the Records), application for fencing/investigation
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activities (pages 15 ? 17) other bank process/cheques obtained through investigation activities (pages 18 to 39 and 41 to 59, 61, 64 to 72, 74 of the Records), extract of Govt. Station Layout, showing the location of the complainant?s property in the proposed Railway line (pages 40 and 63 of the Records), EFCC investigation reports (pages 73, 76 ? 82 of the Records); Irrevocable Power of Attorney by Appellant to the complainant (pages 84 ? 87 of the Records); written acknowledgement of payments by Appellant (pages 88 ? 90 of the Records), witnesses statements, including that of Appellant (pages 99 to 136 of the Records).
In determining the application, whether a prima facie case had been disclosed by the proof of evidence, the Lower Court said:
?In this case proof of evidence was supplied by the prosecutor, wherein after a careful scrutiny and examination of the documents that include amongst others the petition, the following is revealed:
(1) Payment of the sum of N36,000,000.00 to the Defendant for 6 plots of land held out by the Defendant as his, but which could not be developed as it was later found to be
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Railway Line Right of way.
(2) Defendant in his extrajudical statement to the EFCC acknowledged ?I sold six plots of land to Obioma Isiuwa out of 554 plots that was released to me by Government out of Court settlement. I sold six plots to him
Subsequently, another witness alleges in her extra judicial statement quoting the defendant:
?Government has always said they wanted to build railway and that they would never build it. it was then clear to all of us that B.B Apugo had an intention to defraud my son.?
If the Court believes be (sic) stories without further explanation, will that not give room for a triable or prima facie case that needed to go to trial, for the prosecution to support these allegations with evidence? Oral or documentary? I think it will and I so hold.
Applicant?s Counsel laid much emphasis in his Written Submission about ?this charge is only civil in nature without any iota of criminal element contained in it and at most, it is only an apparent civil disagreement over land between the Applicant?s Uwnwulari family and the nominal complainant in this charge, Mr.
28
Obinna (sic) Isiuwa.?
There is nothing extra ordinary or esoteric about/civil transaction having consequences, reverberating in criminal proceedings or criminal elements resonating in civil proceedings. It is the trial proper that separates the chaff from the wheat as there is a thin line separating them just as the same sets of facts can give rise to different causes of action on civil proceeding, so also same acts could be actionable and/or prosecutable.? See pages 490 ? 491 of the Records.
?
The above would suggest that the trial Court took its time to consider the proof of evidence, before reaching its decision. But Appellant complains that the Court was wrong; that the three grounds (above) relied upon by the trial Court to hold that a prima facie case was established did not support such findings; that the quotation contained in lines 3 ? 6 of pages 491 of the Records, basically relied upon by the lower Court, was picked out of con and in isolation of avalanche of facts from the proof of evidence, showing clearly that no prima facie case was disclosed; that the trial Court ignored and disregarded some basic facts and
29
principles set by the superior Court, which negated the findings that there was a prima facie case, namely:
(1) That title documents of the property were given to the nominal complainant and he conducted search and investigations at the Lands Registry, Ministry of Lands, Abia State to verify and confirm the ownership of the property; that the same were confirmed before the complainant paid for the land and took possession, and he was represented by Counsel in the whole transaction. See pages 102, 111 and 120 of the Records.
(2) The Ministry of Lands Abia State, knowing that the land belonged to Appellant?s family, confirmed same and later accepted and registered the property for the complainant as No. 19, page 19 of Volume 95 of the Umuahia Lands Registry. See page 93 of the Records.
(3) That by the terms of the release and return of the Appellant family?s said 24.364 hectares of land (inclusive of the land sold to the nominal complainant), the Abia State Government, through the Ministry of Lands, was under a duty to issue Certificate of Occupancy to the nominal complainant, presented to it by the Appellant?s family. See
30
paragraph 274 of the Records.
(4) That the said official release and return of the land to Appellant?s family, and the gazetting of some, never excluded the part sold to the nominal complainant as a railway right of way. See pages 274 ? 275 of the Records.
(5) That there was nothing in the proof of evidence to substantiate the claim that the land sold to the nominal complainant was on the right of way of a proposed railway line or to show that the Nigerian Railway was laying claims to the said land, and to show when, how and from whom the land was acquired from for the said railway line; that no document of acquisition or revocation of the said land was attached to or alluded to in the proof of evidence; that Appellant had stated, clearly, in his statement, that the claim that the said land fell on the right way of the Railway line, was false.
(6) That upon the bare and unsupported allegation of the railway right of way and the request of the nominal complainant, Appellant?s family also accepted to relocate him to alternate plots, which the nominal complainant accepted and had started surveying same before a disagreement
31
seemingly arose as to the price for the said alternative plots. See pages 127 ? 129 (statement of Surveyor engaged by the nominal complainant to survey the alternative plots).
I think those were profound issues raised by the Appellant, which the trial Court appeared not to have taken into consideration, when he held that there was prima facie case to proceed to the trial of the Appellant for the charge of obtaining money, with intent to defraud, under Section 1 (1) (b) of the Advance Fee Fraud and Other Fraud Related Offences Act, 2006, punishable under Section 1 (3) of the same Act.
I have gone though the voluminous proof of evidence attached to the Information/Charge, and I am at a loss finding any tangible information, fact or document in the proof of evidence, to support the sweeping findings of the lower Court, that a prima facie case had been disclosed to subject Appellant to criminal trial. The trial Court had said:
?If the Court believes be (sic) (the) stories without further explanation, will that not give room for a triable or Prima Facie case that needed to go to trial for the Prosecution to support those allegations with
32
evidence? Oral or documentary? I think it will and I so hold.? (Page 491).
The stories the trial Court elected to believe were basically two, as shown on pages 490 and 491 of the Records:
(1) There was proof that payment of N36,000,000.00 was made by the complainant, Obioma Isiuwa, to the Appellant for 6 plots of land held out by the Appellant as his, but which could not be developed as it was later found to be Railway Line Right of way.
(2) Defendant (Appellant) in his extra judicial statement to EFCC had acknowledged he sold the plots (out of the plots of land released by Government of Abia State to him) to the complainant. And a prospective witness had stated in her extra judicial statement, quoting Appellant as saying that:
?Government has always said they wanted to build railway and that they would never build it. It was then clear to all of us that B.B. Apugo had an intention to defraud my son.?
?
Of course, in a normal course of trial, the alleged statement of the witness would pass for an inadmissible hear-say and speculation and cannot provide a foundation for belief that prima facie case has been
33
disclosed, where the totality of the proof of evidence pointed at a clean, clear civil or contractual transaction over land, whereof the buyer had access to the title documents, made searches at the relevant Land Registry to investigate and comfirm the claims of the Vendor, and, actually, confirmed the same (acting through his agent), before making payments; took possession of the property and got it registered, in his name, by the government, as No. 19, page 19 of Volume 95, Lands Registry, Umuahia, on 17/4/2013. See pages 93 to 96 of the Records, where the Power of Attorney, donated by the Appellant to the Complainant, was stamped by the Abia State Ministry of Lands, Survey and Urban Planning, with the logo of Government, as follows:
?Instrument Detail:
Instrument(s) Type: Irrevocable Power of Attorney
Registration No: 19/19/95
Owner?s Name: ISIUWA, OBIOMA NEHEMIAH
(Signed)
Wednesday, April 17, 2013.?
In his Petition to the EFCC, dated 24/3/2014, the Complainant?s Counsel, among other things, said:
(1) ?That sometime in 2012 our client was in search of a portion of land in the Government
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Station Layout, in Umuahia, Abia State.
(2) That he contacted a real estate agent by name Mrs. Adline Victor Nkwo based in Umuahia to help source for land in the location of interest.
(3) That Mrs. Adline informed our client that she had information regarding the choice of land in Umunwulari Nkata Ibeku (Umuahia) measuring (24.364 hectares) owned by one Prince Benedict Benjamin Apugo (B.B Apugo).
(4) Based on his representation that the land is genuinely owned by him, our client bought 6 plots for the sum of N36,000,000.00 (Thirty Six Million Naira), at N6,000,000.00 (Six Million Naira) per plot
(5) —
(6) —
(7) It was in the course of processing the permit for the land that the Umuahia Capital Development Authority, Umuahia Abia State, informed our client that the land in question had been acquired for the Federal Government Railway Project and that Prince B.B. Apugo had no right to sell the land.
(8) Embarrassed by the development our client telephoned Prince B.B. Apugo and challenged him for the fraudulent sale of Government land.
(9) Without denying that the land had been acquired by the Government, Prince B.B. Apugo
35
said that the Government had always planned to execute the railway project and that the plan would never materialize.
(10) That having discovered that B.B. Apugo had, obtained N36,000,000.00? from him by false pretences and caused him to incur additional expenses of N17,335,800.00? on the development of the fake land, all efforts to reach Prince B.B. Apugo have proved abortive.
(11) The said Prince B.B. Apugo parades himself as a community leader and lives at No. 1 Garage Road, Umuahia, Abia State See page 6 and 7 of the Records.
And in his extra judicial statement, one Samuel Uko Egbe said:
Prince B.B. Apugo sold the land to Obioma, sometime in 2012. I was sent by Prince to take them round and they choosed (sic) were (sic) the (sic) liked. I reported back and they were asked to go to Ministry of land and survey to find out whether it belonged to Umunwulari, where he is the chairman. They came back and paid see page 102 of the Records.
On page 111 of the Records, Mrs. Adline Victor Nkwo said:
?Prince Apugo showed us an official Gazette which the State govt. used in
36
granting him that land ? verse space for Umunwulari estate published 27th April, 1994 Vol. 8 No. 3 under Abia State Notice No. 9, photocopy hereby attached. We collected a photocopy to attached to the agreement he signed to prove his title and ownership to that land. The surveyor of Obioma Isiuwa did the work for Obioma? and my sister Alvan Okoronkwo Eva was the one that confirmed with the surveyor of Mr. Obioma both the collection of the document and other things? I did not know what happened but all they told me is that the first document has been registred, while the Ministry after the registration refused to grant Obioma Certificate of Occupancy, based on the first stated report of the (UCDA)? Please I am pleading that you use your good office to plead to Prince B.B. Apugo to please relocate or refund Mr. Obioma Isiuwa for peace to reign
See also pages 119 to 120 of the Records, where the mother of the Complainant, in her extra judicial statement, said:
?My son indicated interest in buying land in the commercial area in Umuahia and he had an agent by name Mrs. Adline Nkwo, who was to help him search
37
for the plot in the commercial hop (sic) of Umuahia. After a while, she informed my son that she has found 6 plots of land that belonged to Chief B.B. Apugo? she then gave the telephone number of Chief B.B. Apugo to my son and they spoke? After series of meetings with Chief B.B. Apugo, who claimed to be the genuine owner of the land, there was an agreement for the sum of N36,000,000.00 for the land? It was after my son had gotten a lawyer to do search at the Ministry of Lands and the search report showed that the land was free from encumbrance, that he paid for the land; that after my son had taken possession and started development, it was at that point of getting building permit that he was informed that the said land was subject of government acquisition for the purpose of proposed Railway project, and the Ministry of Land admitted their negligence to my son. When my son accosted B.B. Apugo with this information, he said Government has always said they wanted to build a railway and that they would never build it. It was then clear to us that B.B. Apugo had an intention to defraud my son (Underlining mine).
The last
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sentences by the mother of the Complainant, notwithstanding, (which were purely speculatory and founded on hear-say) she had admitted the genuiness of the land sale transaction, and painstaking searches at the Land Registry, which confirmed that the property belonged to the Appellant. That too was the common thread in the extra judicial statements of the other proposed witnesses, and even the Petition by Counsel for the Complainant, Obioma Isiuwa. On what then did the prosecution found the allegation of crime of obtaining money (payment for the 6 plots of land) under false pretences and intention to defraud the Complainant?
In determining what constitute prima facie case, the law defines prima facie as a fact presumed to be true, unless disproved by some evidence to the contrary.? See Sam Vs State (2016) 5 NWLR (pt.1504) 24 at 39, where it was also held that the trial Court has to look at the materials in the proof of evidence, in order to see and rule that there are sufficient facts linking the accused person to the offence charged.
?
Of course, Appellant had, consistently, denied the allegation of intention to defraud the
39
Complainant and had disclosed sufficient contrary facts in the proof of evidence to negate the allegation of intention to defraud the Complainant. See pages 99 to 100 of the Records, where he affirmed his family?s ownership of the land, the sale, the search and confirmation at the Land registry, etc, and also stated:
?The report that the Land falls within the right way of rail line is false, because the government released the layout to me? they did the layout by creating streets, access roads, market recreation ground, schools etc. If the land? is discovered to be part of government proposed rail line, I promise to relocate him to another plots of land, if he wants.?
I do not see how the above disclosures in the proof of evidence can support and justify subjecting the Appellant to criminal trial, in the circumstances, for obtaining money under false pretences, under Section 1(1) (b) of the Advance Fee Fraud an Other Fraud Related Offences Act, 2006.
?By that law ? Section 1(1) (b) (c) thereof, stipulates:
?Notwithstanding anything contained in any other enactment or law, any person who by any
40
false pretence, and with intent to defraud:
(a) Obtains from any other person?
(b) Induces any other person?
(c) Obtains any property, whether or not the property is obtained or its delivery is induced through the medium of a contract induced by false pretence, commits an offence under this Act.?
The Supreme Court, in its interpretation of that law stated the elements of false pretences, thus in the case of Onwudiwe Vs FRN (2006) 10 NWLR (pt.988) 382 at 432 to include:
(a) That there is a pretence
(b) That the pretence emanated from the accused
(c) That it was false
(d) That the accused knew of its falsity or did not believe in the truth
(e) That there was intention to defraud
(f) That the thing is capable of being stolen
(g) That the accused person induced the owner to part with the property. See also Ede Vs FRN (2001) 1 NWLR (pt.615) 502; Alake Vs State (1991) 7 NWLR (pt.205) 567.
?
I, strongly, doubt whether any of the above element of crime of obtaining under false pretences can honestly be located in the proof of evidence, x-rayed above, to support the holding of the trial
41
Court, to prosecute Appellant, as the whole quarrel appears to a civil disagreement and the complainant is still in possession of the 6 plots of land.
The Respondent had also argued that trial in the Federal High Court, by Section 33 (1) and (2) of the Act creating it, is by way of summary trial, and so proof of evidence is not necessary for consideration, and so even where the proof of evidence is attached, it cannot be a basis for which to challenge of a charge.
I do not think such argument is tenable, in view of the prevailing Administration of Criminal Justice Act (ACJA), 2015, whereof Section 109 (b) requires a criminal proceedings to be instituted in the High Court by way of Information, and the High Court, by the definition Section of ACJA ?means the Federal High Court, or High of the Federal Capital Territory.? See Section 494(1) of ACJA.
Moreover, having endeavored to attach a proof of evidence to the charge against Appellant, the Court was under a duty to consider the proof of evidence to see whether it disclosed a prima facie case. See Abacha Vs State (supra) at 30; Grange Vs FRN (supra) 421.
I therefore resolve this
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issue for the Appellant, that the trial Court was wrong to hold that the proof of evidence disclosed a prima facie case against the Appellant. The decision of the trial Court is hereby set aside and in its place, the application to quash the charge/information is granted and the charge, is accordingly, quashed.
On Issues 2 and 3:
Whether the trial Court was right to merely suspend the Bench Warrant (and not set it aside) and whether the trial Court was right to order the Appellant to appear on the next adjournment date, to answer to the charges, in the circumstances of this case?
It can be appreciated that, with the first issue being resolved for the Appellant, that the issues 2 and 3 have become merely academic, having quashed the charge/information upon which the issues 2 and 3 predicated. I shall, however, summarize my views on the two issues, together, ours being a penultimate Court, to provide material for the Apex Court to work with, in the event of Appeal against this judgment.
Firstly, I observe that the trial Court did not adjourn the matter to any date, despite saying on 493 of the Records:
?The interlocutory
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application challenging the Court?s jurisdiction having been dismissed, the Defendant is hereby ordered to appear before this Court to answer to his charges on the next adjourned date pursuant to Section 87 of the Administration of Criminal Justice Act, 2015.?
I think that errors of not adjourning the case to any date was fatal, as it made the order inchoate and inconclusive.
Was the trial Court right to suspend the Bench Warrant, instead of dismissing it?
In this case, the trial Court had admitted that the charge/information and Notice of trial had not been served on the Appellant. Of course, the law is that a Court has no jurisdiction to issue an order against a person who has not been served with a Court process to appear before it, and has not been formally arraigned or produced before it, as it lacks power to pronounce on/against such a person. See the Nwadike Vs State (2015) LPELR ? 24550 CA, where this Court held:
It is equally doubtful whether a Court can assume the trial of an accused person and make order(s) to curtail his liberty, when the accused has not been formally arraigned before the
44
Court, thereby coming under or surrendering to the authority, protection and mercy of the Court. While arraignment is yet to be done, the Accused person is, usually, in the care and control of the prosecution, who has a duty to produce him in Court and surrender him to the Court, by formal arraignment, wherein he (accused) is made to take his plea. Of course, the process of formal arraignment has earlier been stated in the case of Olabode Vs State (2009) 11 NWLR (pt.1152) 254, ratio 2. See also Blessing Vs FRN (2013) 12 WRN 36; Edet Vs State (2008) LPELR ? 4016 CA. It was therefore, premature and wrong, in my view, for the learned trial Court to pronounce the order of remand on the Appellant, when he was yet to be surrendered or presented to the Court by the prosecution, for formal arraignment.?
See also the case of Okeke Vs State (2003) 15 NWLR (pt.842) 25, where the Supreme Court said that:
an arraignment is not a matter of technicality; it is a very important initial step in the trial of a person in a criminal charge and that where there is no proper arraignment of the accused person, no trial in law would have
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commenced.?
Also in the Nwadike Vs State (supra) where this Court added:
?I also believe that where no criminal trial has commenced, pursuant to a valid arraignment, the Court lacks powers to pronounce on the liberty of the accused, except perhaps, where he is produced in Court, specifically, under what is usually termed ?a holding charge? usually applicable in Magistrate?s Courts.?
In this case, at hand, the learned trial Court had admitted that Appellant had not been served, personally, with the charges and so ordered for the suspension of the Bench Warrant it earlier ordered for the arrest of Appellant on 8/10/2015. See page 493 of the Records. Having conceded that the Bench Warrant was wrongly issued, because Appellant had not been served with the charge/notice of trial, I think the trial Court ought to have set the wrongly issued process (Bench Warrant) aside, since it had no jurisdiction to issue it, in the first place. Any order made by a Court, without jurisdiction, is null and void, ab initio.
?
Section 382 (4) and (5) of ACJC provides for how to serve a charge and notice of trial on a defendant,
46
who is not in custody, that:
(4) The notice of trial and information shall be served on him, personally, and
(5) Where it is impossible or impracticable to effect personal service? to serve him, with the leave of Court through his Counsel (if any), or on his surety, or on an adult in his household, or in such other manner as the Court shall deem fit, and the service shall be deemed to be duly served on the defendant.
In this case, the Respondent had filed a motion ex-parte under Section 382 (5) of ACJA, 2015, to serve Appellant by substituted means. That motion was not argued, but the trial Court jumped the gun and ordered for the Bench Warrant to arrest Appellant; and when it found out that that was wrong, it suspended the implementataion of the Bench Warrant (instead of setting it aside). The trial Court yet still ordered the Appellant to appear in Court on the next adjournment date to answer to the charge against him, pursuant to Section 87 of the ACJA, 2015!
?As earlier discussed and held, above, I do not think the trial Court had the vires to make such order, in the circumstances, as I think it went beyond its role as
47
impartial adjudicator to that of prosecutor or Police or EFCC, to forcefully produce the Accused person, without serving him with any charge or Notice of trial. See Nwadike Vs State (2015) LPELR ? 24550 (CA); Edet Vs State (2008) 14 NWLR (pt.1106) 52.
I do not think Section 87 of the ACJA, 2015, can apply, without recourse to Section 382 of the same Act, which requires a defendant to be served, personally, or by substituted means, with the charge/information and notice of trial. I believe it is upon compliance with the Section 382 (3) (4) and (5) of the Act, where there is a pending charge; that the trial Court can have the powers to apply the Section 87 of the Act, which says:
?A Court has authority to compel the attendance before it of a suspect who is within the jurisdiction and is charged with an offence committed within the State, Federal or the Federal Capital Territory, Abuja, as the case may be, or which according to law may be dealt with as if the offence had been committed within the jurisdiction and to deal with the suspect according to law.?
?
I, therefore, resolve issues 2 and 3 too for the Appellant and, on the
48
whole, hold that the appeal is meritorious. I allow it, set aside the decisions of the trial Court and hereby order the quashing of the 3 Counts Charge/Information (Charge No. FHC/UM/CR/39/2015) filed against Appellant, and I set aside the Bench Warrant issued against him (Appellant) on 8/10/15.
Parties to bear their respective costs.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have had the honour and privilege to have read in draft, the admirable, commendable, robust, compellingly elucidating and comprehensive lead judgment just delivered by my learned brother, Ita George Mbaba, JCA. I am in total agreement with the reasons and conclusions reached therein. I am also of the firm viewpoint that the instant appeal is imbued with merit. Hence, I too will allow the appeal and subscribe to the consequential orders made in the said lead judgment of my learned brother, Mbaba, JCA, inclusive of the one made with regard to costs.
TUNDE OYEBANJI AWOTOYE, J.C.A.: I was privileged to read the draft of the judgment just delivered by my learned brother I. G. Mbaba (J.C.A.).
I agree entirely with the reading and conclusion therein. I have nothing useful
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to add. I also resolve all the issues in favour of the appellant.
?This appeal has merit. I abide by the orders made in the lead judgment.
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Appearances
PROF. ERNEST OJUKWU, SAN, WITH HIM O.O. AMUZIE, ESQ.For Appellant
AND
N. I. ANI, ESQ. (JOSHUA SAIDI ESQ, who settled the Brief)For Respondent
