SABIYU GARBA v. FEDERAL REPUBLIC OF NIGERIA
(2019)LCN/13619(CA)
In The Court of Appeal of Nigeria
On Wednesday, the 3rd day of July, 2019
CA/YL/191C/2017
RATIO
PROSECUTION: THE ONLY DUTY OF THE PROSECUTION IS TO PROVE BEYOND REASONABLE DOUBT
It is trite that it is the sole duty of the prosecution to prove its case beyond reasonable doubt by calling all material witnesses. This onus of proof must be discharged. Even where an accused person in his statement to the police admitted committing the offence the prosecution is not relieved of that burden so that a wrong person will not be convicted for an offence he never committed. See People of Lagos State V. Umaru (2014) 3 SCNJ 114 at 137 and Attah & Ors v. State (2009) LPELR 8802 CA. PER JAMES SHEHU ABIRIYI, J.C.A.
CONFESSIONAL STATEMENTS: WHEN THE ISSUE OF INVOLUNTARINESS OF CONFESSIONAL STATEMENT CAN BE RAISED AND A TRIAL WITHIN TRIAL WILL TAKE PLACE
An accused person must admit making the confessional statement before raising the issue of involuntariness or other vitiating circumstance in which the statement was made by him. A trial within trial will be unnecessary unless the issue of voluntariness vel non is clearly raised. Where an accused person initially objects to the admissibility on the ground of involuntariness but at the trial within trial denies making the statement or contends that he was forced to sign or thumbprint an already prepared statement, it will be unnecessary to continue with the trial within trial. The trial Court will then admit the statement in evidence. The trial Court labours in vain where the accused person belatedly disowns the statement at the trial within trial. See Lasisi V. State (2013) LPELR 20183 SC Page 29, Nwangbomu V. State (1994) LPELR SC; Yahaya v. State (2016) LPELR 40254 CA and Mohammed v. State (2014) LPELR 22318 CA. PER JAMES SHEHU ABIRIYI, J.C.A.
JUSTICES
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
JAMES SHEHU ABIRIYI Justice of The Court of Appeal of Nigeria
ABDULLAHI MAHMUD BAYERO Justice of The Court of Appeal of Nigeria
Between
SABIYU GARBA Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIA Respondent(s)
JAMES SHEHU ABIRIYI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment delivered on 9th May, 2016 in the Federal High Court, Yola Judicial Division holden at Yola wherein the Appellant and seven others were tried, convicted for conspiracy to obstruct and obstruction of officers of National Drug Law Enforcement Agency (NDLEA) from carrying out their lawful duty contrary to Sections 14 (b) and 49 (a) of the National Drug Law Enforcement Agency Act.
The Respondent?s case against the Appellant is very simple and short. According to the Respondent, on 21st March, 2012, National Drug Law Enforcement Agency (NDLEA) officers went out on an operation from Yola to a village called Loko and were attacked by a mob in the village. In the process two officers of the NDLEA were killed. The Appellant and four others were arrested by the police and soldiers.
?In his defence, the Appellant stated that on the 21st March, 2012 he was at home with his wife and children. They heard people shouting and running. His younger brother came running into the house. The Appellant asked him what was going on. The younger
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brother said he did not know. He (Appellant) then came out of the house and saw people running. He asked somebody and the person said ?Boko Haram.? The village was in ?chaos.? He went back into the house and told his wife and mother to enter their rooms while he looked for his younger children that he had not seen. Then he saw soldiers. As he was about to turn a soldier threatened to shoot him. He told the soldier that he did not know what was happening. The soldiers asked him if any people had passed there. The Appellant said no. He was arrested despite the fact that he showed a bandage used in covering a cut from an appendicitis operation he had undergone. They were brought to Yola NDLEA office.
After considering the evidence adduced by the parties and addresses of learned counsel, the Court below found the Appellant and the others guilty on both counts, convicted and sentenced him to a prison term of twenty (20) years for conspiracy to obstruct officers of the NDLEA from discharging their lawful duties and another twenty (20) years prison term for the offence of obstruction of NDLEA officers from carrying out their lawful
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duties in the process of which two officers lost their lives and two others were seriously injured. Both sentences are to run concurrently.
The Appellant sought for and was granted extension of time within which to appeal. Upon the grant of the application, the Appellant on 19th January, 2018 filed an amended notice of appeal which was deemed duly filed and served on 14th November, 2018. The notice of appeal contains six grounds of appeal.
From the six grounds of appeal, the Appellant presented the following three issues for determination:
?1) Having regard to the evidence adduced by the Appellant and the entire circumstances and the approach adopted by the trial Court in this case, in delivering the Judgment, whether the trial Court was right in convicting and sentencing the Appellant as charged. (Distilled from ground 1 of the Notice of Appeal).
2) Whether the trial Court was not wrong in law, when it declared the statement of the Appellant as confessional statement in spite of all evidence led at the trial within trial session (Distilled from ground 4 of the Notice of Appeal).
3.) Whether the Respondent proved the case of
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conspiracy and obstruction of officers of the National Drug Law Enforcement Agency in carrying out their duty beyond reasonable doubt against the Appellant as charged, as required by law to ground the conviction and sentence of the Appellant. (Distilled from grounds 2, 3, and 5 of the Notice of Appeal).
No issue was formulated from ground 6. It is therefore deemed abandoned. The said ground is hereby struck out.
The Respondent submitted four issues for determination. They are reproduced immediately hereunder:
?i. Whether from the facts and circumstances of this case the learned trial judge properly admitted the confessional statement of the Appellant herein, as 1st Defendant in the trial Court, in evidence. This issue is distilled from Ground 4 of the Notice of Appeal.
ii. Whether from the facts and circumstances of this case the Prosecution proved its case beyond reasonable doubt to establish the guilt of the Appellant as required by law. This issue is distilled from ground 2 of the Notice of Appeal.
iii. Whether in arriving at the decision to convict the Appellant, the Learned Trial Judge properly evaluated the evidence in line
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with the principle of natural justice and fair hearing as required by law. This issue is distilled from grounds 1 and 3 of the Notice of Appeal.
iv. Whether the Appellant is deemed to have abandoned Ground 5 of his Notice of Appeal by his failure to formulate and argue any competent issue on that ground in his Appellant?s Brief.
Although Appellant has formulated issue 3 from grounds 2, 3 and 5, I will consider the appeal on the three issues presented by the Appellant for determination.
On issue 1, learned counsel for the Appellant contended that the Court below considered only the evidence of the Respondent without giving any consideration to the evidence of the Appellant adduced at the trial. It was submitted that failure to consider the Appellant?s case is a denial of justice and is fatal to the case of the Respondent.
On issue 2, learned counsel for the Appellant submitted that the admissibility or otherwise of any confessional statement is governed by Section 29 of the Evidence Act, 2011. The Court was referred particularly to Sub-section 5 of Section 29 of the Evidence Act. The Court was referred to the evidence led at the
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trial within trial in respect of the confessional statement of the Appellant at pages 280 vol. 1 to 317 vol. II of the record.
Evidence adduced at trial within trial by the Appellant, it was submitted, was not challenged or controverted and that the Respondent failed to prove that the statement of the Appellant was voluntary.
The Appellant, it was submitted, gave evidence and told the Court below that he was threatened with a pistol to tell the truth, how he was beaten by the NDLEA officers to say only what they wanted to hear from him. That there is evidence in the record that three people beat the Appellant in the course of obtaining his statement. That the Appellant showed the Court below the scar of an injury he sustained on his ankle which is a scar of the chain tied to his leg. That there was also the evidence of Pw4 in the trial within trial that Pw4 testified that he treated the Appellant for injury he sustained on his right ankle of the right leg when he was brought to the clinic.
?
It was submitted that the evidence led by the Appellant especially evidence of Pw4 was not challenged by the Respondent by way of cross examination. Inspite
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of this, the Court below over ruled the objection of the Appellant to the admission of the statement and admitted it in evidence as exhibit Pw4A.
The Court was urged to reject the statement.
On issue 3, it was submitted that the burden of proof in criminal cases lies throughout on the prosecution and never shifts. This is because the Appellant is presumed innocent until his guilt is established. The Court was referred to Babatunde v. The State (2014) 2 NWLR (Pt. 1391) 298 at 343.
The standard of proof, it was submitted, is proof beyond reasonable doubt. The Court was referred to Afolalu V. State (2010) 16 NWLR (Pt. 1220) 584 and Akpan Vs State (1991) 3 NWLR (Pt. 182) 1695. Every ingredient of the offence alleged, it was submitted, must be established by credible evidence. The Court was referred to Ikomi V. State (1986) 3 NWLR (Pt. 28) 340 and Al-Mustapha V. State (2013) 17 NWLR (Pt. 1383) 350 at 405.
The Respondent, it was submitted, failed to discharge the burden placed on it by virtue of Section 135 (1) and (2) of the Evidence Act.
?
It was submitted that no evidence was led to link the Appellant with the alleged offences. That none of
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the witnesses called said he saw the Appellant at the scene of the alleged offences. That it was only Pw5 who asserted that the Appellant confessed to the charge which is not true.
From the foregoing alone, the Appellant, it was contended, ought to have been discharged and acquitted.
But that is not all, it was argued. The Court below, it was submitted, relied on confessional statements of the co-accused persons which implicated the Appellant in finding the Appellant guilty. It was submitted that before the evidence of a co-accused will be used against another co-accused, that co-accused must be confronted with the said evidence and the co-accused accepts such evidence against himself. The Court was referred to Adisa V. State (2013) 14 NWLR (Pt. 1375) 567 at 579, Suberu v. State (2010) 8 NWLR (Pt. 1197) 586 at 602- 603 and Duru V. State (2017) 4 NWLR (Pt. 1554) 1 at 26. The Appellant in this case was not confronted with the evidence of the co-accused; it was submitted.
The Court was also urged to allow the appeal on this score.
?
It was further submitted that the confessional statement of the Appellant was not tested to ascertain its
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truthfulness and veracity by examining the contents in the light of other credible available evidence led at the trial. The Court was referred to Okanlawon V. State (2015) 17 NWLR (Pt. 1489) 445 at 480, Akpan v. State (Supra) and Kolawole V. State (2015) 9 NWLR (Pt. 1460) 134 at 165.
It was submitted that there was no scintilla of evidence to prove the allegation against the Appellant neither was Exhibit Pw4A corroborated in any way by any evidence to prove the allegation against him.
It was submitted that inspite of the fact that the Respondent failed to prove its case beyond reasonable doubt, the Appellant entered his defence and gave evidence that he was not at the scene of the crime when the incidence happened. That the Appellant denied saying all the things that were ascribed to him by the Respondent?s witnesses. That all other co-accused testified and said they did not know the Appellant. This evidence, it was argued, was not challenged. It was submitted that any unchallenged evidence is deemed admitted. The Court was referred to Zubairu v. State (2015) 16 NWLR (Pt. 1486) 504 at 527.
?
Learned counsel for the Appellant
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stated that a photograph of the alleged officer who was injured at the scene of the incident was tendered after the appellant?s conviction and allocutus before and sentence. It was submitted that this is a procedure unknown to law. Furthermore the photograph, it was argued, is a computer generated document and Section 84 of the Evidence Act ought to have been complied with. This was not complied with, it was submitted.
It was submitted further that the Court below only lumped up the evidence adduced by the Respondent against all the Defendants without identifying the quantum of evidence against each of the Defendants to ascertain the extent of the involvement of each, particularly the Appellant.
It was submitted that the prosecution did not prove the guilt of the Appellant beyond reasonable doubt.
Learned counsel for the Respondent submitted that the procedure adopted by the lower Court in admitting the confessional statement of the Appellant Exhibit Pw4A was proper. It was contended that the objection to the admissibility of the confessional statement was itself contradictory. That the Appellant suggested that he was forced to
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make the statement and at the same time suggested that he was forced to thumb print a pre-written statement he did not make. The trial Court nonetheless ordered a trial within trial as the issue of oppression was apparently raised. The Appellant, it was submitted, prevaricated between not making a statement voluntarily and not making a statement at all. The Court below, it was submitted, observed demeanour of the witnesses in the trial within trial and ascribed probative value to them before admitting the statement in evidence. It was submitted that the Court below rightly admitted and relied on Exhibit Pw4A, the confessional statement of the Appellant. The Court was referred to Emeka V. State (2001) 7 NSCQR 582 at 595, Idowu V. State (2000) 3 NSCQR 96, Nwachukwu V. The State (2007) 31 NSCQR, 312 and Akpan V. State (2001) 7 NSCQR 235 at 250.
Learned counsel for the Respondent submitted that proof beyond reasonable doubt does not on the authorities mean proof beyond all iota of doubt. The Court was referred to Nasiru V. State (1999) 2 NWLR (Pt. 589) 87 and Ani & Anor V. State (2009) 6 SCNJ 98.
The prosecution, it was argued,
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established the guilt of the Appellant on his confessional statement, evidence of eye witnesses and circumstantial evidence.
It was submitted that minor variations in evidence of Respondent?s witnesses do not affect the substance of the activities of the Appellant as narrated by the witnesses. The Court was referred to Agbo V. State (2006) All FWLR (Pt. 309) 1380 at 1390 and Ochemaje V. State (2008) All FWLR (Pt. 435) 1661 at 1684.
It was submitted by learned counsel for the Respondent that both the Respondent?s case and the defence of the Appellant were well considered by the Court below before it arrived at its decisions.
The evidence relating to the Appellant, it was contended, was analysed and that it was on this basis that the Court below convicted the Appellant and his co-accused persons.
It was submitted that in taking into account, the principles enunciated by the Supreme Court and this Court relating to fair consideration of cases of all the parties in arriving at a balanced judgment, the judgment of the Court below cannot be faulted. The Court was referred to Sanusi V. Ameyogun (1992) NWLR (Pt. 237) 527.
?
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Learned counsel for the Respondent pointed out that ground 5 of the grounds of appeal relates to matters that occurred after the findings of the Court below that the Appellant was guilty. It was submitted that at that stage, the question of proof beyond reasonable doubt predicated on the principle of presumption of innocence enshrined in Section 36 of the 1999 Constitutions FRN (as amended) did not arise as the guilt of the Appellant had already been established.
Be that as it may, the Court below, it was contended, did not take into account the materials contained in ground 5 before exercising its discretion to sentence the Appellant to imprisonment.
The Appellant?s reply brief did not deal with any new points arising from the brief of the Respondent. See Order 19 Rule 5(1) Court of Appeal Rule 2016.
I will therefore discountenance the Appellant?s reply brief.
It is trite that it is the sole duty of the prosecution to prove its case beyond reasonable doubt by calling all material witnesses. This onus of proof must be discharged. Even where an accused person in his statement to the police admitted committing the offence the
13
prosecution is not relieved of that burden so that a wrong person will not be convicted for an offence he never committed. See People of Lagos State V. Umaru (2014) 3 SCNJ 114 at 137 and Attah & Ors v. State (2009) LPELR ? 8802 CA. Learned counsel for the Appellant contended that the Court below considered only the Respondent?s case without giving any consideration to the Appellant?s defence. Did it? To start with the Court below pointed out the requirement of the law on the Respondent in its judgment at page 553 paragraph 2 of the record of appeal.
The Court below then found that on the evidence led the Appellant was arrested at the scene of the attack by soldiers. See page 558 of the record. This was a correct finding. See evidence of Pw5 at page 353 of the record.
On this evidence lone, the Appellant could rightly be convicted as his defence only lent credence to the evidence led by the Respondent.
It is true that the Court below did not specifically comment on the evidence led by the Appellant through himself as the only witness. The failure to do so might have been due to the fact that it contained nothing
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exculpatory of the Appellant. It was proper for the Court below anyway to comment on the Appellant?s defence. It is trite law that a trial Court must consider the defence of an accused person no matter how stupid.
I have myself looked at the defence and there is nothing in it capable of creating any doubt in the prosecution?s case.
Issue 1 is resolved against the Appellant and in favour of the Respondent.
An accused person must admit making the confessional statement before raising the issue of involuntariness or other vitiating circumstance in which the statement was made by him. A trial within trial will be unnecessary unless the issue of voluntariness vel non is clearly raised. Where an accused person initially objects to the admissibility on the ground of involuntariness but at the trial within trial denies making the statement or contends that he was forced to sign or thumbprint an already prepared statement, it will be unnecessary to continue with the trial within trial. The trial Court will then admit the statement in evidence. The trial Court labours in vain where the accused person belatedly disowns the statement at the
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trial within trial. See Lasisi V. State (2013) LPELR ? 20183 SC Page 29, Nwangbomu V. State (1994) LPELR SC; Yahaya v. State (2016) LPELR ? 40254 CA and Mohammed v. State (2014) LPELR ? 22318 CA.
In the instant matter learned counsel for the 3rd accused stated that the extra judicial statement was made under duress. But in his evidence at the trial within trial, the Appellant stated as follows:
?This statement is what they liked that they wrote.?
See page 300 of the record. Re-examined by his counsel, the Appellant maintained that the content of the extra judicial statement was not his own. This is what he said:
?The content of this statement is not what I told the officers of NDLEA to write. They only ask me my name, residence and occupation and I told them.?
It is clear from the objection raised by the Appellant that he was merely playing a game of hide and seek. Unfortunately for him, justice is not a game of hide and seek. As learned counsel for the Respondent rightly pointed out, this game of hide and seek or what learned counsel for the Respondent referred to as obvious
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prevarications and inconsistencies were manifestations of a badly rehashed story concocted to scuttle the admissibility of the statement. Thus the Court below was misled to labour in vain by trying the issue of whether or not the statement was voluntarily made by the Appellant. On the obvious prevarications and inconsistencies manifested in the objection, it was unnecessary for the Court below to conclude the trial within trial. It ought to have admitted the statement in evidence. Unless an accused person owns up to the statement as his, the trial Court labours in vain where as in this matter, Appellant belatedly disowned it in clearer terms at the trial within trial. See Iheme v. State (2013) 2 SCNJ 1012 at 1037, Lasisi V. State (Supra) and Mohammed v. State (Supra). The voir dire proceeding was unnecessary.
From the foregoing, the Court will not labour in vain considering the evidence led at the trial within trial and ruling of the Court below on the voluntariness vel non of the statement.
Issue 2 is also resolved against the Appellant and in favour of the Respondent.
?
An accused person?s confession is only evidence against him. The law
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is that a confessional statement of a co-accused can only be used against an accused person if he voluntarily adopts it. See Ozaki V. State (1990) LPELR- 2888 SC and State V. Gwangwan (2015) LPELR ? 24837 SC. See also Section 29 (4) of the Evidence Act 2011 which provides as follows:
?Where more persons than one are charged jointly with an offence and a confession is made by one of such persons in the presence of one or more of the other persons so charged is given in evidence, the Court shall not take such statement into consideration as against any such other persons in whose presence it was made unless he adopted the said statement by words or conduct.?
Learned counsel for the Appellant did not point out which confessional statement of the co-accused the Court below held implicated the Appellant. I have read the judgment of the Court below over and over. I am not able to see where the Court below found evidence of a co-accused implicating the Appellant.
?
Learned counsel for the Appellant complained that the Respondent tendered a photograph of an officer of NDLEA injured in the incident after judgment and allocutus before
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sentence. The record does not show that the photograph was admitted in evidence. This is partly because Appellant?s counsel objected to the photograph being shown to the Court. In any case, it was not intended to be tendered as an exhibit by the Respondent as the language used by both the Respondent?s and the Appellant?s counsel was ?show/showing? of the photograph to the Court. As learned counsel for the Respondent pointed out, the Court below in sentencing the Appellant to a prison term of the twenty (20) years did not take the photograph into consideration.
Ground 5 from which this issue was argued reproduced immediately hereunder reads thus:
?The learned trial Court erred in law and occasioned a miscarriage of justice by admitting in evidence the picture tendered by the prosecution after the stage of allocutus.?
The above complaint is saying what is not. That means that the ground of appeal is far from the truth. The photograph as the record shows was not admitted in evidence.
Respondent did not even apply to tender it in evidence.
So the argument by learned counsel for the Appellant
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on the photograph is much ado about nothing.
Sections 14(b) and 49(a) of the National Drug Law Enforcement Agency Act Cap 30 LFRN 2004 provide as follows:
?14 Any person who-
(a) ….
(b) Conspires with, aids, abets, counsels, attempts to commit or is an accessory to any act or offence referred to in this Act,
Shall be guilty of an offence under this Act and liable upon conviction to be sentenced to imprisonment for a term not less than fifteen years and not exceeding 25 years.
49 Any person who-
(a) Wilfully obstructs the Agency or any authorised officer of the Agency in the exercise of any of the powers conferred on the Agency by this Act or
(b) ….
Shall be guilty of an offence under this Act and shall be liable on conviction
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to imprisonment for a term not exceeding five years or to a fine of N20,000 or to both such imprisonment and fine.?
In criminal proceedings, the accused is presumed innocent until the contrary is proved by prosecution. The onus of proof is therefore on the prosecution and it never shifts. The accused person needs not say anything in his defence. The burden throughout in a criminal trial is on the prosecution to prove the guilt of the accused. See Igabele V. State (2006) 6 NWLR (Pt. 975) 100.
The case against the accused person must be proved beyond reasonable doubt. Any doubt in the prosecution?s case must be resolved in favour of the accused person. See the decisions of this Court in Baruwa V. State (1996) 7 NWLR (Pt. 460) 302 and Onuoha V. State (1998) 5 NWLR 118.
Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the society if it admitted of fanciful possibilities to deflect the course of justice. The doubt should be real. In Abeke V. State (2007) LPELR -31 at page 31 Tobi JSC stated thus:
?The evidential burden is satisfied if a reasonable man is of the
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view that from the totality of the evidence before the Court, the accused person committed the offence. The proof is not beyond all shadow of doubt. There would be shadows of doubt here and there but when the pendulum tilts towards and in favour of the fact that the accused person committed the offence, a Court of law is entitled to convict even though there are shadows of doubt here and there.?
Conspiracy is an agreement by two or more persons to commit an unlawful act, coupled with an intent to achieve the agreement?s objective. See Black?s Law Dictionary 10th Edition. Conspiracy can be inferred from the acts of doing things towards a common end where there is no direct evidence in support of an agreement between or among the accused persons. The conspirators need not know themselves and may not have agreed to commit the offence of conspiracy at the same time. Courts tackle the offence of conspiracy as a matter of inference to be deduced from certain acts or inactions of the parties concerned. The offence of conspiracy is established once it is shown in evidence that the criminal design alleged is common to all the accused persons. See
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Adekoya V. State (2017) 1 SCNJ 62 at 83, Oduneye V. State (2001) 13 WRN 88, Marlow v. State (1997) Crim, LR 897 CA, Kayode V. State(2016) LPELR-40028 SC and Alufohai V. State (2014) LPELR-24215 SC.
The guilt of an accused person can be proved by:
a) The confessional statement of the accused person or
b) Circumstantial evidence; or
c) Evidence of the witness of the crime.
As pointed out earlier in this judgment, the Appellant as the Court below rightly found out was arrested at he scene of crime. He was arrested with four others. The Appellant himself lent credence to the evidence led by the Respondent. He admitted that he was arrested by soldiers and taken to NDLEA office Yola with others.
As I pointed out earlier, the Court below also relied on the retracted confessional statement of the Appellant. The law allows it. It is trite law that mere retraction of a voluntary confessional statement by an accused person does not render such statement inadmissible or worthless and untrue in considering his guilt. See Uluebeka V. State (2000) 4 SC (Pt. 1) 203 and Idowu V. State (2000) 7
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SC (Pt. 11) 50. However since 1913 when R v. Sykes was decided, the Courts have adopted the practice of subjecting the confessional statement of an accused person to some scrutiny before relying on it as a basis for conviction. See R V. Sykes (2013) 8 CA R 233 and F.R.N. V. Barminas (2013) 15 NWLR (Pt. 1588) 177 at 214-215.
Learned counsel for the Appellant contended that the Court below did not test the confessional statement of the Appellant. I do not agree. See page 562 of the record. This is what the Court said:
?I have scrutinized the confessional statements of the defendants and compared with the available credible evidence. I am of the view that the confessional statements of the defendants have all satisfied the acceptability test stated Okanlawon v. State (supra).”
In the case of the Appellant there was evidence outside the confessional statement Exhibit PW4A to show that it is true. The Pw5 said the Appellant was arrested at the scene. The Appellant himself in his testimony in Court confirmed it.
?
The evidence was cast iron and overwhelming against the Appellant. There is overwhelming evidence that the criminal design
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alleged was common to Appellant, the other accused persons and the throng that attacked the NDLEA officers in order to obstruct them from arresting the suspected drug dealers. This they successfully did by the violent attack on the NDLEA officers leading to the death of two of the officers.
It is clear from the record of the Court below at pages 558 and 562 that the Court below considered the evidence against the Appellant separately to ascertain the extent of his involvement.
Issue 3 is therefore resolved against the Appellant and in favour of the Respondent.
All three issues having been resolved against the Appellant, the appeal should be dismissed.
It is accordingly hereby dismissed by me.
I have observed the Appellant was sentenced to a prison term of twenty (20) years on both count 1 and 2. Twenty (20) years prison term in respect of count 2, however, is in excess of the five years or fine of N20,000 or both such imprisonment or fine provided for under Section 49 (a) of the Act.
?By virtue of Section 36 (8) 1999 Constitution FRN (as amended), no penalty shall be imposed for a criminal offence heavier than in force at the time the
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offence was committed. See the decision of this Court in Iortim V. State (1997) 2 NWLR (Pt. 490) 711. The Court below erred when it imposed a prison term of twenty years on count 2 when the law provided for a prison term of not more than five years or fine of N20,000 or both such imprisonment or fine.
CHIDI NWAOMA UWA, J.C.A.: I read in advance a draft copy of the judgment delivered by my learned brother JAMES SHEHU ABIRIYI, JCA. His Lordship has comprehensively resolved the issues that arose in this appeal. I agree with his reasoning and conclusion arrived at in dismissing the appeal for lacking in merit. I also dismiss it and affirm the judgment of the trial Court.
ABDULLAHI MAHMUD BAYERO, J.C.A.: I agree.
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Appearances:
Lukman O. Fagbemi, Esq.For Appellant(s)
K. Tawum Esq. (Deputy Commander of Narcotics, Prosecutions and Legal Services, NDLEA Yola) holding the brief of J. N. Sunday, Esq.For Respondent(s)
Appearances
Lukman O. Fagbemi, Esq.For Appellant
AND
K. Tawum Esq. (Deputy Commander of Narcotics, Prosecutions and Legal Services, NDLEA Yola) holding the brief of J. N. Sunday, Esq.For Respondent
