Federal Republic Of Nigeria V. T. A. Dairo & Ors (2015)

LAWGLOBAL HUB Lead Judgment Report

CHIMA CENTUS NWEZE, J.S.C

Way back in November, 2009, the respondents in this appeal, [as accused persons], were arraigned before the High Court of the Federal Capital Territory, Abuja. Precisely, by an Amended Charge of fifteen counts, dated and filed on November 19, 2009, they were alleged to have committed various offences under the Penal Code and the Independent Corrupt Practices and Other Related Offences Act, 2000 [ICPC Act, for short].

Sequel to their due arraignment, trial commenced before High Court Number 12 (hereinafter, referred to as “trial Court’). It would appear that there were no procedural hitches when the first nine witnesses were examined in chief; duly, cross examined and discharged, accordingly. However, the prosecution’s attempt to tender the extra judicial statement of the first respondent was, stoutly, resisted by counsel for all the accused persons.

PW10 was one Reuben Omosigbo, the principal Investigating Officer. The prosecution sought to tender the first respondent, T. A. Dairo’s statement of July 25, 2008, through him. Counsel for all the accused persons greeted this attempt with firm disapprobation. They predicated their objection on the ground of the involuntariness of the said statement. On his part, counsel for the third accused person [now, first respondent] hinged his agitation on the fact that the said statement was elicited from a question and answer session and on its involuntary origin. In the circumstance, the trial court was constrained to order a trial-within-trial or mini trial (otherwise, known as voire dire).

At the mini trial, the prosecution’s witness [who obtained the said statement] testified and was cross examined. The first respondent herein [the third accused person before the trial court] testified and was cross examined. The trial court found in favour of the voluntariness of the said statement, partly, anchoring its reasoning on its observation of the demeanour of the first respondent and the prosecution’s sole witness at the said mini trial. Consequently, it admitted the statement as exhibit AX.

Aggrieved by the said court’s ruling, the said first respondent lodged an appeal at the Abuja Division of the Court of Appeal (henceforth, referred to as “the lower court.”) In its judgment dated April 25, 2012, the lower court allowed the appeal. It proceeded to expunge the said exhibit AX from the records. This appeal is the prosecution’s expression of dissatisfaction against the judgment of the lower court.

ISSUES FOR DETERMINATION

In the brief of argument, filed on July 11, 2012, the appellant raised only five issues from its seventeen grounds of appeal. No issues were woven around the ninth and tenth grounds of the Notice of Appeal.

The respondents, rightly, urged this court to deem the said grounds nine and ten, from which no issues were formulated, as having been abandoned. We, entirely, agree with counsel. We, accordingly, order as prayed. The said grounds nine and ten are hereby struck out, as having been abandoned.

The implication is that there are only five issues for the determination of this appeal. They were framed thus:

1. Whether the Court of Appeal was right when it held that it was regular and permissible for the first respondent to have argued his appeal upon two Notices of Appeal without withdrawing one
2. Whether [the] appellant’s right to fair hearing was breached when the Court of Appeal failed, neglected or refused to rule one way or the other on the submissions of the appellant that the first respondent abandoned the case he presented at the trial while arguing his appeal at the Court of Appeal
3. Whether in view of the express admission on the record by the first respondent that the disputed confessional statement was voluntary, coupled with his failure to cross -examine the only prosecution witness in the voire dire on vital issues, the Court of Appeal was right to have relied merely on alleged ‘circumstances’ and ‘state of mind of the first respondent’ and the failure of the prosecution to call evidence which the Court of Appeal held was vital’ to hold that the confessional statement was not voluntary
4. Whether the Court of Appeal was right when it deliberately shut its eyes to the cold contents of the record of appeal before it and it then went ahead to make findings on facts not contained on the said record – to the prejudice of the appellant
5. Whether the Court of Appeal judgment was contradictory in materials particular, resulting to adverse findings against the appellant

While the first and second respondents adopted the above issues, the third respondent, on the one hand; and the fourth and fifth respondents, on the other hand, re-phrased the said issues, although their gravamen remains the same. Although, the issues which the appellant put forward are, somewhat, woolly in their tenor, we shall, like the first and second respondents, adopt them for the determination of this appeal. After all, it is their appeal. We shall, however, deal with issues two and three together.

As will be seen in the course of this judgment, the resolution of issue three would, even, obviate the need for the dissipation of judicial energy in the consideration of issues four and five. Due to their inextricable linkage with the lower court’s adverse findings against the appellant, these two issues are subsumed in the complaint that the said court, improperly, expunged exhibit AX from the record.

Thus, the determination of the grievance ingrained in the said issue three would suffice, Okonji v Njokanma [1991] 7 NWLR (Pt 202) 131; Oro v Falade [1995] 5 NWLR (Pt 396) 395. All said, the main agitation of the appellant is against the lower court’s expunction of exhibit AX from the record. Put differently, therefore, a finding in favour of the restoration of the said exhibit as part of the record would, unarguably, douse the complaints in issues three, four and five.

ARGUMENTS ON THE ISSUES