VICTOR ONODAVWERHO v. FEDERAL REPUBLIC OF NIGERIA
(2019)LCN/13041(CA)
In The Court of Appeal of Nigeria
On Friday, the 5th day of April, 2019
CA/B/491C/2017
RATIO
WHETHER A COMPLAINT AGAINST THE DECISION OF A TRIAL COURT ON THE ADMISSIBILITY OF EVIDENCE IS PART OF THE MAIN TRIAL OR NOT
It is settled that a complaint against the trial Court in respect of a decision made by the trial Court on the admissibility of a documentary or oral evidence during the course of a trial is part of the main trial and not an interlocutory decision unless a special case has been made in respect of the issue. Thus, a party appealing against a judgment of the trial Court can file as one of the grounds of appeal, a complaint alleging that inadmissible evidence had been admitted during trial or admissible evidence had been rejected. The wrongful admission or rejection of evidence is fundamental and it can lead to miscarriage of justice. See Onwe v. Oke (2001) 3 NWLR Pt. 700 Pg. 406; Okobia v. Ajanya (1998) 6 NWLR Pt. 554 Pg. 348 at 360; Owena Bank Plc. v. N.S.E Ltd. (1997) 8 NWLR Pt. 515 Pg. 1.PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
A GROUND OF APPEAL ATTACKING A SPECIFIC INTERLOCUTORY RULING OF TRIAL COURT AGAINST WHICH NO LEAVE OR EXTENSION OF TIME TO APPEAL WAS SOUGHT OR OBTAINED WOULD BE INCOMPETENT
It is settled that a ground of appeal attacking a specific interlocutory ruling of the trial Court against which no leave or extension of time to appeal was sought or obtained would be incompetent and liable to be struck out. See Kakih v. P.D.P (2014) LPELR-23277 (SC); Ogigie v. Obiyan (1997) 10 SCNJ 4; CBN v. Okojie (2002) 8 NWLR Pt. 768 Pg. 488. PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
DIFFERENT STATEMENTS TO THE POLICE MUST BE TRIED SEPARATELY
It is to be noted that seven distinct mini trials was conducted within the main trial in Dawa v. State (1980) NSCC 334. Also, in Durugo v. State (1992) 7 NWLR Pt. 255 Pg. 525 Per Karibi-Whyte JSC., the Court said as follows:-
it was decided in Okhugbe v. State (1971) 1 UILR 55, that where an accused person has made more than one statement to the Police, and objections are raised as to the admissibility of each of them, the trial Court must try the admissibility of each of the statements separately. This was what was done in this case. The finding can therefore not be successful impeached. The decisions of Nwuzoke v. State (1988) 1 NWLR Pt. 72 Pg. 529 and Ojegele v. State (1988) 1 NWLR Pt. 71 Pg. 414 relied upon are not applicable.PER HELEN MORONKEJI OGUNWUMIJU, J.C.A.
JUSTICES
HELEN MORONKEJI OGUNWUMIJU Justice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPE Justice of The Court of Appeal of Nigeria
SAMUEL CHUKWUDUMEBI OSEJI Justice of The Court of Appeal of Nigeria
Between
VICTOR ONODAVWERHO Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIA Respondent(s)
HELEN MORONKEJI OGUNWUMIJU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the Delta State High Court delivered by Hon. Justice C.O. Ogisi on 18/7/2017 wherein the Appellant was convicted for all the Counts on the information and sentenced to five years imprisonment and another three years imprisonment both running concurrently.
The facts that led to this appeal are as follows:-
The Appellant was brought before the High Court of Delta State for trial in Charge No. AS/23C/10 on a twelve (12) Count charge of Stealing, Forgery and Uttering.
The statement of offence is set out below:-
?COUNT 1
STATEMENT OF OFFENCE
Stealing contrary to Section 390 (8) (b) of the Criminal Code, Cap 21, Vol. 1 Laws of Delta State of Nigeria, 2006.
PARTICULARS OF OFFENCE
Victor Onodavwerho on or about 31st January, 2008 at Asaba within the jurisdiction of the Honourable Court with intent to defraud stole the sum of N52, 350, 315. 26k (Fifty Two Million, Three Hundred and Fifty Thousand, Three Hundred and Fifteen Naira, Twenty Six Kobo) property of Delta State
1
Government through Econet Loan Account No. 00160070000550 with UBA Plc. Asaba II Branch.
COUNT 2
STATEMENT OF OFFENCE
Forgery contrary to Section 467 of the Criminal Code, Cap C21, Vol. 1 Laws of Delta State of Nigeria, 2006.
PARTICULARS OF OFFENCE
Victor Onodavwerho on or about 31st January, 2008 at Asaba within the jurisdiction of the Honourable Court with intent to defraud and in order to facilitate the stealing of the sum of N52, 350, 315. 26k (Fifty Two Million, Three Hundred and Fifty Thousand, Three Hundred and Fifteen Naira, Twenty Six Kobo) forged a letter purportedly written by Delta State Ministry of Finance to the Manager UBA Plc Asaba II Branch to request for Managers? Cheque drawn on Delta State Econet Loan Account No 00160070000550.
COUNT 3
STATEMENT OF OFFENCE
Uttering contrary to Section 468 of the Criminal Code, Cap C21, Vol. 1 Laws of Delta State of Nigeria, 2006.
PARTICULARS OF OFFENCE
Victor Onodavwerho on or about 31st January, 2008 at Asaba within the jurisdiction of the Honourable Court knowingly and fraudulently uttered a forged letter purportedly written by the Delta State
2
Ministry of Finance to Manager UBA Plc. Asaba II Branch as genuine
COUNT 4
STATEMENT OF OFFENCE
Stealing contrary to Section 390 (8) (b) of the Criminal Code, Cap 21, Vol. 1 Laws of Delta State of Nigeria, 2006.
PARTICULARS OF OFFENCE
Victor Onodavwerho on or about 30th April, 2008 at Asaba within the jurisdiction of the Honourable Court with intent to defraud stole the sum of N15, 350, 315. 26k (Fifteen Million, Three Hundred and Fifty Thousand, Three Hundred and Fifteen Naira, Twenty Six Kobo) property of Delta State Universal Basic Education Board through Econet Loan Account No. 00160070000550 with UBA Plc. Asaba II Branch.
COUNT 5
STATEMENT OF OFFENCE
Forgery contrary to Section 467 of the Criminal Code, Cap C21, Vol. 1 Laws of Delta State of Nigeria, 2006.
PRTICULARS OF OFFENCE
Victor Onodavwerho on or about 30th April, 2008 at Asaba within the jurisdiction of the Honourable Court with intent to defraud and in order to facilitate the stealing of the sum of N15, 350, 315. 26k (Fifteen Million, Three Hundred and Fifty Thousand, Three Hundred and Fifteen Naira, Twenty Six Kobo) forged a letter purportedly
3
written by the Delta State Ministry of Finance to request for Managers? Cheque from UBA Plc. Asaba II Branch drawn on Delta state Econet Loan Account No. 00160070000550.
COUNT 6
STATEMENT OF OFFENCE
Uttering contrary to Section 468 of the Criminal Code, Cap C21, Vol. 1 Laws of Delta State of Nigeria, 2006.
PARTICULARS OF OFFENCE
Victor Onodavwerho on or about 2nd of May, 2008 at Asaba within the jurisdiction of the Honourable Court with intent to defraud knowingly and fraudulently uttered forged a letter purportedly written by Delta State Ministry of Finance dated 30/4/2008 to Manager UBA Plc. Asaba II Branch as genuine.
COUNT 7
STATEMENT OF OFFENCE
Stealing contrary to Section 390 (8) (b) of the Criminal Code, Cap 21, Vol. 1 Laws of Delta State of Nigeria, 2006.
PARTICULARS OF OFFENCE
Victor Onodavwerho on or about 17th June, 2008 at Asaba within the jurisdiction of the Honourable Court with intent to defraud stole the sum of N11, 250, 000. 00k (Eleven Million, Two Hundred and Fifty Thousand Naira) property of Delta State Universal Basic Education Board through Contractors Disbursement Account No.
4
00160010000697 with UBA Plc. Asaba II Branch.
COUNT 8
STATEMENT OF OFFENCE
Forgery contrary to Section 467 of the Criminal Code, Cap C21, Vol. 1 Laws of Delta State of Nigeria, 2006.
PRTICULARS OF OFFENCE
Victor Onodavwerho on or about 17th June, 2008 at Asaba within the jurisdiction of the Honourable Court with intent to defraud, and in order to facilitate the stealing of the sum of N11, 250, 000. 00 (Eleven Million, Two Hundred and Fifty Thousand Naira) forged a letter purportedly written by the Delta State Universal Basic Education Board (SUBEB) to request for Managers? Cheque from UBA Plc. Asaba II Branch drawn on Contractor?s Disbursement Account No. 00160070000697.
COUNT 9
STATEMENT OF OFFENCE
Uttering contrary to Section 468 of the Criminal Code, Cap C21, Vol. 1 Laws of Delta State of Nigeria, 2006.
PARTICULARS OF OFFENCE
Victor Onodavwerho on or about 18th June, 2009 at Asaba within the jurisdiction of the Honourable Court with intent to defraud knowingly and fraudulently uttered a forged letter dated 17/6/08 purportedly written by Delta State Universal Basic Education Board (SUBEB) to
5
Manager UBA Plc. Asaba II Branch as genuine.
COUNT 10
STATEMENT OF OFFENCE
Stealing contrary to Section 390 (8) (b) of the Criminal Code, Cap 21, Vol. 1 Laws of Delta State of Nigeria, 2006.
PARTICULARS OF OFFENCE
Victor Onodavwerho on or about 25th September, 2008 at Asaba within the jurisdiction of the Honourable Court with intent to defraud stole the sum of N2, 050, 000. 00k (Two Million and Fifty Thousand Naira) property of Delta State Universal Basic Education Board through Contractors? Disbursement Account No. 00160010000697 with UBA Plc. Asaba II Branch.
COUNT 11
STATEMENT OF OFFENCE
Forgery contrary to Section 467 of the Criminal Code, Cap C21, Vol. 1 Laws of Delta State of Nigeria, 2006.
PARTICULARS OF OFFENCE
Victor Onodavwerho on or about 25th September, 2008 at Asaba within the jurisdiction of the Honourable Court with intent to defraud, and in order to facilitate the stealing of the sum of N2, 050, 000. 00 (Two Million and Fifty Thousand Naira) forged a letter purportedly written by the Delta State Universal Basic Education Board (SUBEB) to request for Managers? Cheque from UBA Plc.
6
Asaba II Branch drawn on Contractors? Disbursement Account No. 00160070000697.
COUNT 12
STATEMENT OF OFFENCE
Uttering contrary to Section 468 of the Criminal Code, Cap C21, Vol. 1 Laws of Delta State of Nigeria, 2006.
PARTICULARS OF OFFENCE
Victor Onodavwerho on or about 26th September, 2008 at Asaba within the jurisdiction of the Honourable Court with intent to defraud knowingly and fraudulently uttered a forged letter purportedly written by Delta State Universal Basic Education Board (SUBEB) dated 25/9/08 to the Manager of UBA Plc. Asaba II Branch as genuine.
In proof of its case against the Appellant, the Prosecution now the Respondent called nine (9) witnesses, tendered Fourty-One (41) Exhibits and closed its case. The Appellant testified in person and did not call any witness.
In a considered judgment, the trial Court found the Appellant guilty of all the Counts of the information, convicted and sentenced him to five (5) years imprisonment on Counts 1, 4, 7, and 10 and three (3) years imprisonment on Counts 2, 3, 5, 6, 8, 9, 11 and 12.
7
Dissatisfied, the Appellant filed a Notice of Appeal on 18/8/17. The Record of Appeal was transmitted on 2/11/17 and deemed transmitted on 16/4/18. The Appellant filed his brief of argument on 22/11/17 and deemed filed on 16/4/18 and Appellant?s reply brief was filed on 30/4/18. The Respondent?s brief of argument was filed on 25/4/18.
Mr. Habeeb Lawal Esq., who settled the Appellant?s brief of Argument identified Four (4) issues for the determination of this appeal as follows:-
1. Whether Exhibits P7, P8, P12, P13, P14, P15, P16 and P17 being the alleged confessional statements of the Appellant were properly proved and admitted in evidence.
2. Whether the proceedings of the trial Court did not occasion a breach of the Appellant?s fundamental right to fair hearing.
3. Whether the lower Court was right to rely on the evidence of PW5 in convicting the Appellant for the offence of stealing in Counts 1, 4, 7, and 10 of the information and the offence of forgery in Counts 8 and 11 of the information.
4. Whether the evidence adduced by the Respondent is admissible and sufficient to justify the verdict of guilt pronounced by the learned trial judge at the end of the trial of the Appellant?
8
In the brief settled by Ifeanyi Agwu, Esq., the Respondent raised two issues for the determination of this appeal to wit:-
1. Whether from the totality of evidence, the lower Court was right in convicting the Appellant on Counts 1, 4, 7 and 10 of the information bordering on stealing and Counts 2, 3, 5, 6, 8, 9, 11 and 12 of the information bordering on forgery and uttering.
2. Whether the confessional statements of the Appellant were properly admitted?
At the hearing of this Appeal, the Respondent?s counsel Ifeanyi Agwu Esq., legal officer to the EFCC moved a motion filed on 9/4/18 praying this Honourable Court for an order striking out Grounds 1, 2, 3, 4 and 5 contained in the Appellant?s Notice of Appeal for been incompetent. Counsel argued that the said grounds attacking the ruling of the lower Court delivered on 14/10/2014 and 6/4/2016 which are interlocutory decisions without leave of Court first sought and obtained are incompetent and issues distilled therefrom and arguments canvassed in respect of same shall collapse. Counsel cited Gabari v.Ilori (2002) 14 NWLR Pt. 786 Pg. 78 at 93 Par B-D; Ogigie
9
v. Obiyan (1997) 10 NWLR Pt. 524 Pg. 179 at 195 Par. F-H; Madagwa v. State (1988) 5 NWLR Pt. 92 Pg. 60
Learned Respondent?s counsel argued that even if the contention of the Appellant is based on the fact that the said Grounds 1-5 bother
