SHITTU v. SA’AD
(2021)LCN/15576(CA)
In The Court of Appeal
(GOMBE JUDICIAL DIVISION)
On Thursday, August 12, 2021
CA/G/50C/2020
Before Our Lordships:
Jummai Hannatu Sankey Justice of the Court of Appeal
Tunde Oyebanji Awotoye Justice of the Court of Appeal
Ebiowei Tobi Justice of the Court of Appeal
Between
MUHAMMED SHITTU MAI GOLD APPELANT(S)
And
USMAN SA’AD RESPONDENT(S)
RATIO:
NON PAYMENT OF FILING FEES STRIPS THE COURT OFF ITS JURISDICTION.
The Notice of Appeal is an originating process and non-payment of its filing deprives the Court of its jurisdiction to hear the appeal. See IBEABUCHI & ORS vs IKPOKPO & ORS (2013) LPELR-20074 (CA); ONWUGBOFOR vs OKOYE (1996) 1 NWLR (PT.42) 252 at 292; SULE & ORS vs ORISAJIMI (2019) LPELR-47039 (SC). This Court lacks the jurisdiction to hear this appeal. PER TUNDE OYEBANJI AWOTOYE, J.C.A.
TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the judgment in respect of the appeal filed on 24/5/2019 against the decision of Gombe State High Court sitting on Appeal in Appeal No GM/62A/2018 delivered on 27/2/2019.
The Chief Magistrate Court, Gombe State was the Court of first instance. The accused was arraigned for offences of Criminal Conspiracy and Criminal Breach of Trust contrary to Sections 97 and 312 of the Penal Code Law.
The Learned Chief Magistrate after hearing the parties gave judgment convicting the accused and sentencing him accordingly.
Dissatisfied with the said judgment, the accused appealed to the lower Court against the judgment of the Chief Magistrate Court delivered on 31/10/2018. The grounds of the appeal as per his Notice of Appeal are
GROUND NO. 1
That the learned Chief Magistrate erred in law when he convicted and sentenced the appellant for an offence of Criminal Conspiracy when the offence was not established beyond reasonable doubt.
GROUND 2.
That the learned Chief Magistrate erred in law because he failed to properly evaluate the evidence adduced by the parties before him and that has occasioned a miscarriage of justice.
GROUND 3.
The learned Chief Magistrate erred and occasioned a miscarriage of justice to the appellant when he concluded that the exhibit C1 is confessional in nature.
GROUND 4.
That the judgment of the lower Court was unwarranted and cannot be supported having regards to the nature of evidence adduced before the Court.
GROUNDS 5.
The lower Court erred when she ordered for payment of N6,785,100. Compensation when there was no enough materials before it.
Parties filed and exchanged briefs of argument at the lower Court. After listening to both parties to the appeal, the learned judges of the lower Court gave judgment allowing the appeal in the following terms.
“The appeal is meritorious and therefore succeeds.
The respondent can sue the appellant in civil action.
Therefore judgment of CMC 5 delivered on 31/10/2018 is hereby set aside. The appellant is hereby discharged. The respondent submission hereby discountenanced. Conviction sentence and an order of compensation set asides, as there was no evidence placed before the lower Court to prove same.”
The appellant who was the Respondent at the lower Court, aggrieved by the said decision on 24/5/2019 filed an appeal challenging the decision on three (4) grounds.
GROUNDS OF APPEAL
GROUND 1: The learned lower Court erred in law when it held that the offence of criminal conspiracy has not being established.
GROUND 2: The lower Court erred in law when it held that the appellant did not prove by evidence the ingredient of Section 311 of the Penal Code.
GROUND 3: The lower Court erred in law when it set aside the conviction & sentence and the order for the payment of compensation.
GROUND 4: The judgment of the lower Court is unreasonable, unwarranted, unjustified and unsupported by available evidence led at the trial.
On transmission of record of appeal to this Court, parties filed and exchanged briefs of argument.
BRIEFS OF ARGUMENT
The Appellant’s Brief of Argument filed on 19/11/2020 was deemed filed on 23/3/2021. It was prepared by his counsel P.K GAYUS of Legal Aid Council.
The Respondent’s Brief of Argument filed on 23/4/21 was deemed filed on 1/7/2021. The brief was settled by M.A GARBA his counsel.
On receipt of the Respondent’s Brief of Argument Learned Counsel for appellant filed Appellant’s Reply Brief on 30/6/2021 but deemed on 1/7/2021
SUBMISSIONS OF COUNSEL
APPELLANT’S BRIEF OF ARGUMENT
ISSUES FOR DETERMINATION
The appellant formulated two issues for the determination of this appeal thus;
1. Whether two accused persons must stand trial together at the same time for the offence of conspiracy to be upheld. (Ground 1)
2. Whether going by the evidence on record, the offence of criminal breach of trust can be said to have been proved beyond reasonable doubt to warrant conviction, sentence and payment of compensation. (Ground 2, 3 & 4)
Legal Argument by P.K Gayus Esq
ISSUE 1
Learned appellant’s counsel submitted that conspiracy as an offence required proof that two or more persons agreed to do or cause to do an illegal act or a legal act by illegal means and carried on some act in furtherance of the agreement, he cited Section 96 of the Penal Code Law, and the case of BENJAMIN OYAKHERE vs STATE (2005) 4 QCCR 1-208 PG 113 RATIO 4. He submitted that the lower Court was wrong to have held that, convicting one accused person was an academic exercise since the trial was separated at the instance of the prosecution. He submitted further that the lower Court misconceived the provision of Section 96 of the Penal Code as the section does not make it mandatory for two accused persons suspected to have committed the offence of conspiracy to be tried together at the same time and in the same Court. He cited Section 259 (1) of the Criminal Procedure Code, and the case of OSENI vs STATE (2012) 4 SCM 150 and submitted that a single accused person can stand trial for conspiracy which must not be proved by direct evidence but from inference deduced from the certain criminal acts of the parties. He submitted that the evidence on record proved that the respondent and one Adamu Haruna deceived the appellant by showing him a picture of a woman in Tanzania with gold for sale, just to lure the appellant to give them money. He submitted that the evidence established criminal conspiracy notwithstanding that it was only the respondent that stood trial.
ISSUE 2
Learned counsel submitted that the offence of criminal breach of trust had been established and proved beyond reasonable doubt and warranted the conviction, sentencing and order of payment of compensation. In canvassing arguments in support of the ingredients constituting the offence of criminal breach of trust, learned counsel submitted that the prosecution had established the fact that the sum of N19,200,000 was given to the accused on trust to buy gold, over N6,000,000 was converted, which established the first ingredient that the accused had dominion over the money, and the second ingredient that the money was misappropriated by the accused person as evidenced by the testimony of Pw1-3 and exhibit C2. He submitted further that the accused initiated the transaction by telling PW1 & 2 that there was plenty gold at Cameroon, and intentionally allowed Adamu Haruna to convert the money since he alleged that it was the said Adamu Haruna that cheated him. He also submitted that the accused acted dishonestly knowing full well that there was no gold in Cameroon. He submitted that the conditions listed in the case of F.R.N vs AWE ODESSA (2010) VOL 1 E.C.L.R pg 101 @ 104 ratio 3, for the proof of criminal breach of trust was clearly established against the respondent.
Learned counsel submitted that a freely made confessional statement made either judicial or extra judicial as long it was found to be direct, positive, and properly proved, is sufficient proof of guilt and can ground a conviction. He cited CHUKWUMA AGUGUA vs STATE (2017) 10 NWLR (pt.1575) pg 254 @ 264 ratio 20, and submitted that the confessional statement of the accused which was not retracted is the best form of evidence and a guide to the actual events that played out. He submitted that the trial Court was on a right footing based on evidence to convict, sentence and order the payment of compensation to the appellant. He urged the Court to allow the appeal and restore the judgment of the trial Court with the order for the payment of compensation.
APPELLANT’S REPLY BRIEF
Learned counsel canvassed legal arguments in response opposing the preliminary objection raised by the respondent. In response to the respondent’s argument that only the appellant can sign the notice of appeal personally, learned counsel submitted that by Order 17 Rule 4 of the Court of Appeal Rules, it allow the legal representative of the appellant to sign the notice of appeal. He submitted further that even if the section allowed only the accused person to sign his notice of appeal personally, the section was not applicable to the instant case as it was the nominal complainant who was not satisfied with the discharge and acquittal of the accused person. He submitted that non applicability of the section to instances like this allowed counsel in the Ministry of Justice and other government agencies to sign every notice of appeal when appealing against the discharge and acquittal of an accused person.
Learned counsel submitted that the Legal Aid Act among other things; granted exclusively powers to the Legal Aid Council to determine who is entitled to receive legal aid, provided access to information to persons raising objections on how the council arrived at granting legal assistance, and also punishes any applicant for legal aid who gives false information in order to secure the services of the council. He submitted that the respondent was handicapped to complain, as he did not approach the Legal Aid to object the legal representation of the appellant. He submitted further that even if the appellant’s income is beyond the national minimum wage, the council can still represent him by virtue of Section 10(1)(2) of the Act. He submitted that the appellant engaged the services of a private counsel at the trial and lower Court, but engaged the Legal Aid because his principal (boss) cut ties with the appellant which made life unbearable for him.
Learned counsel contended that Section 8(1) of the Act cannot be read in isolation to subsection (5), he submitted that if the Legal Aid cannot prosecute, Section 8 (1) is in conflict with the 1999 Constitution on the right of a person to a counsel of his choice. He argued further that filling an appeal is not tantamount to prosecution.
In further response to the respondent’s formulated issues for determination, learned counsel contended that issue 1 did not arise from grounds 2 and 3 of the appellant’s ground of appeal, and as such goes to no issue, Western Steel Works v. Iron & Steel Workers (1987) 1 NWLR (pt.49) pg 284 @ 304. He contended that even if the respondent will be allowed to raise an issue not founded on the grounds of appeal, issue 2 covered grounds 2 & 3 of the appellant’s grounds of appeal was purely issues of law, which deals with the ingredients of criminal breach of trust, conviction, sentencing and payment of compensation under the Penal Code. He urged the Court to make examination of the grounds of appeal and the particulars to determine whether the grounds of appeal were grounds of law, or mixed law and fact, and to discountenance with the submissions of the respondent and allow the appeal.
RESPONDENTS BRIEF OF ARGUMENT
Learned respondent’s counsel Sule Yusuf Esq, canvased legal arguments in support of the Notice of preliminary objection. Learned counsel posited that for a notice of appeal to be competent and valid, it must be personally signed by the appellant. He cited Order 17 Rule 1 of the Court of Appeal Rules 2016, and ADAMU vs STATE (2018) LPELR 49282 (CA) and submitted that the appellant’s notice of appeal signed by counsel was incompetent and liable to be struck out. He submitted that the appellant did not qualify for the waiver of payment for notice of appeal under Order 17 Rule 8(3), as he was not an indigent person to be represented by the Legal Aid, having engaged at the trial and lower Court a private counsel. He submitted further that even if the appellant was an indigent person, he still did not satisfy the conditions in Section 8 of the Legal Aid Act by which the Legal Aid can represent an indigent litigant. He submitted that the Legal Aid has no power to undertake criminal prosecution even on behalf of indigent litigants.
ISSUES FOR DETERMINATION
The respondent formulated 3 issues for the determination of this appeal thus;
1. Whether grounds two and three of the appellant’s notice of appeal is not incompetent.
2. Whether by the evidence on record, the offence of criminal breach of trust can be said to have been proved beyond reasonable doubt to warrant conviction, sentence, and payment of compensation.
3. Whether the appellant has proved an offence of criminal conspiracy beyond reasonable doubt against the respondent.
ISSUE 1
Learned counsel posited that for a notice of appeal containing grounds on facts or mixed law and facts to be competent, an appellant must first seek and obtain leave to argue those grounds. He submitted that the appellant’s grounds of appeal contained issues of facts, mixed law and facts, and the failure of the appellant to seek the required leave rendered the appeal incompetent. He cited Section 242(1) of the 1999 constitution and the case of AKEREDOLU & ORS vs AKINREMI & ORS (1986) LPELR-329 (SC).
ISSUE 2
Learned counsel submitted that the evidence on record did not established the ingredients of the offence of criminal breach of trust against the respondent. He contended that the evidence of Pw1 showed that the appellant gave the respondent money to buy gold, but the respondent did not say he was buying for the appellant. Learned counsel was of the opinion that since the appellant agreed to give the respondent N4,000,000 to settle other persons, he cannot in law by virtue of Section 53 of the Penal Code claimed that the respondent committed an offence. He submitted that the nature of the transaction between the appellant and the respondent was a civil contract involving a debt which the respondent agreed to pay. He submitted that exhibit C was not a confessional statement because it was not direct positive and unequivocal.IMOH vs STATE (2016) LPELR-47989 (SC)
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ISSUE 3
Learned counsel submitted that by the provision of Section 96(1)(a)(b) of the Penal Code, the evidence on record did not establish the offence of conspiracy against the respondent. He submitted that the only thing the appellant was relying on was the fact that the respondent asked the appellant to give one Adamu Haruna the money to settle their debts, which in law cannot amount to conspiracy. He urged the Court to strike out/dismiss the appeal.
PRELIMINARY OBJECTION
Learned counsel for the Respondent challenged this appeal on the following grounds;
(A) The Notice of Appeal was not signed by the appellant personally
(B) The appellant is not an indigent person
(C) The Legal Aid Council cannot in law represent the appellant in view of the provision of Section 8 of the Legal Aid Act 2011.
I have deeply considered the objections of learned counsel for the Respondent. The provision of ORDER 17 of the Court of Appeal Rules 2016 governs “appeals to this Court from any Court as tribunal acting either in its original or in its appellate jurisdiction in criminal cases, other than a Court martial and to matters related thereto, see ORDER 17 Rule 1 of the Court of Appeal Rules.
Since this appeal is a further appeal against the decision of the High Court of Justice of Gombe State, Order 17 of the Rules applies to it.
Order 17 Rule 4 (1) of the same rules goes further to specify who should sign a notice of appeal in such appeals. It states that such notice “shall be signed by the Appellant himself or by his legal representative”.
The Notice of Appeal in this further appeal is on pages 137-138 of record of appeal. It is signed by appellant’s counsel P.K GAYUS of the Legal Aid Council.
This leg of the preliminary objection therefore holds no water. It is accordingly dismissed.
The second leg of the preliminary objection is on the competence of P.K GAYUS of Legal Aid Council to file this further appeal bearing in mind that the appellant in this appeal was the prosecutor in the Court of first instance.
This argument is predicated on the provision of Section 8(1) & (2) and Second Schedule of the Legal Aid Act 2011.
For ease of reference, I shall capture hereunder the provision of Section 8 (1) & (2) of the Act and the Second Schedule of the said Act.
Section 8 (1) & (2) of the Act reads thus
“8. (1) The grant of legal aid, advice and access to justice shall be provided by the Council in 3 broad areas, namely, Criminal Defence Service, Advice and Assistance in Civil matters including legal representation in Court and Community Legal Services subject to merits and indigence tests for the parties.
(2) The Council, shall establish, maintain and develop a service known as the Criminal Defense Service for the purpose of assisting indigent persons involved in criminal investigation or proceedings specified in the Second Schedule to this Act, access to such advice, assistance and representation as the interest of justice requires”.
Second Schedule (PARTS A & B) of the Act reads as follows:
“A. Proceedings in a Court or Tribunal (whether at first instance or on appeal) wholly or partly in respect of crimes of the following descriptions, or as near to those descriptions as may be, respectively in any Criminal Code or Penal Code.
CRIMINAL CODE – PENAL CODE
1. Murder of any degree – culpable Homicide Punishable with Death
2. Manslaughter – culpable Homicide not punishable with death
3. Maliciously or willfully grievous hurt – Wounding or inflicting grievous bodily harm
4. Assault occasioning – Criminal force occasioning actual bodily harm
5. Common Assault
6. Affray
7. Stealing
8. Rape
9. Armed Robbery
Aiding and abetting, or counseling or procuring the commission of, or being an accessory before or after the fact to, or being an accessory before or after the fact to , or attempting or conspiring to commit any of the offences listed I paragraph A of the Schedule ”.
I have deeply considered the above provisions of the Legal Aid Act. The Legal Aid Act is meant to establish a scheme for the grant of legal aid and access to justice in certain matters for indigent persons with inadequate resources, see OKAFOR & ANOR vs EMMANUEL (2015) LPELR -41659 CA.
By virtue of Section 8 (2) of the Act, the Council is to establish a CRIMINAL DEFENCE SERVICE for the purpose of assisting indigent persons. It is not for prosecution of criminal cases. A criminal defence system by its meaning necessarily excludes criminal prosecution. It is to assist poor persons against whom criminal actions have been initiated.
Private prosecution of an appeal as in this case do not fall within the ambit of the provision of Section 8(2) of the Legal Aid Act.
There are two (2) more reasons why this preliminary objection has to succeed. PARTS A & B of the Second Schedule of the Legal Aid Act specifies the offences to which the Legal Aid Act applies – the offences of conspiracy, cheating and criminal breach of trust are not included. It is worthy of note that the Notice of Appeal filed by appellant’s counsel was marked “OFFICIAL” and so was not paid for. Since the counsel who appeared for the appellant and filed the Notice of Appeal should not have done so, this appeal stands on a wrong pedestal. It is a jurisdictional issue. The Notice of Appeal is an originating process and non-payment of its filing deprives the Court of its jurisdiction to hear the appeal. SeeIBEABUCHI & ORS vs IKPOKPO & ORS (2013) LPELR-20074 (CA); ONWUGBOFOR vs OKOYE (1996) 1 NWLR (PT.42) 252 at 292; SULE & ORS vs ORISAJIMI (2019) LPELR-47039 (SC). This Court lacks the jurisdiction to hear this appeal. The preliminary objection succeeds in the circumstance. Appellant is advised to go back to properly initiate his appeal at the lower Court.
Appeal No CA/G/50C/2020 is accordingly struck out on ground of lack of jurisdiction.
JUMMAI HANNATU SANKEY, J.C.A.: I had the advantage to read in advance the draft of the Judgment just delivered by my learned brother, Tunde O. Awotoye, J.C.A.
I agree that the objections raised to the hearing of the Appeal under paragraph (c) of the preliminary objection filed by the Respondents, is entitled to succeed. It is evident that P.K. Gayus Esq., a Legal Practitioner with the Legal Aid Council, filed the Notice of Appeal and signed it on behalf of the Appellant. However, Section 8 of the Legal Aid Act, 2011 which circumscribes the offences for which legal aid shall be offered to indigent persons, does not include the offences of conspiracy and criminal breach of trust.
More grievous however, is the fact that the Appeal, having been wrongly filed by the Legal Aid Council outside the powers vested on it by the Legal Aid Act, 2011 creating it, the Appellant failed to pay the requisite filing fees for the Notice of Appeal. The Appellant has therefore not invoked the jurisdiction of this Court by the non-payment of the requisite filing fees. This is evident from the stamp “Official” on the face of the Notice of Appeal.
Based on these two grounds, I agree that the Appeal is incompetent. Consequently, it is liable to be struck out. Therefore, I abide by the Order in the lead Judgment.
EBIOWEI TOBI, J.C.A.: I have read in draft the lead judgment just delivered by my learned brother, T. O. Awotoye, JCA. I agree with the lead judgment. I have nothing useful to add.
Appearances:
P.K Gayus, Esq. For Appellant(s)
Sule Yusuf, Esq. For Respondent(s)
