Gbenga Adekoya V. The State (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

HARUNA SIMON TSAMMANI, J.C.A. (Delivering the Leading Judgment)

The Appellant herein and three other persons were arraigned, tried and convicted by the Ogun State High Court sitting at Abeokuta for having committed sundry offences of conspiracy to commit felony, stealing and uttering false documents, which are offences punishable under Section 516, 390 and 468 respectively of Criminal Code Law, Cap. 29, Laws of Ogun State of Nigeria, 1978.

The prosecution’s case against the Appellant and his co-accused persons is that, a routine audit was conducted by the defunct National Electric Power Authority (N.E.P.A), Abeokuta District office on the 20th October, 2003. That during the audit exercise, the Appellant (Gbenga Adekoya) held himself out as Gbenga Afolayan Amos for the purpose of collecting payment as a pensioner for the defunct National Electric Power Authority (NEPA).

According to the prosecution, the audit exercise was conducted consequent upon discovery during checks on the payment vouchers of pensioners at the Abeokuta District Office which revealed that six (6) fake pensioners were on the Pay-Roll. Upon the arrest of the Appellant and his co-accused, they were arraigned on the 6th day of December, 2011 for the offences stated above.

When the Appellant and the other three accused persons were arraigned, they all pleaded not guilty on all the counts, whereupon the matter proceeded to trial. However, after the PW4 had completed his testimony and the court resumed on the 20/3/2012, learned counsel for the Appellant informed, the court that the accused persons (including the Appellant on record) intended to change their plea, so that there will be no need for further hearing in the matter.

He therefore sought for and was granted an adjournment to enable him further consult with the accused persons on the issue. When the court resumed on the 2nd day of April, 2012, learned counsel for the defence affirmed the previous position taken by the defence, when he informed the court that the accused persons intended to change their plea. The learned trial judge then directed the Registrar to read and explain the charges to the accused persons. That was done in respect of each count and to each of the accused persons to which the charges applied.

They all pleaded guilty, whereof the learned trial judge proceeded to convict each of them (including the Appellant) thereon. The Appellant who was the 3rd accused person at the trial, was consequently sentenced to seven (7) years imprisonment on each of counts 1, 2, 3 and 11, and fourteen (14) years in respect of count 14. The sentences are to run concurrently. The Appellant is aggrieved by the decision of the trial court and has now

approached this Court for relief.

The Notice of Appeal which is contained at pages 89-94 of the record of appeal was undated but filed on the 13/7/2012. By the Notice of Appeal, the Appeal raised four (4) Grounds of Appeal, which I endeavour to reproduce below (but without their particulars) for a better understanding of the issues involved in this appeal.

Those Grounds are:-

1. The learned trial judge erred in law in convicting the third accused person/appellant on counts 1, 2, 3, 11 and 14 of the Information.
2. The learned trial judge erred in law in convicting the defendants on counts 1, 2, 3, 11 and 14 of the Information where the statement of the accused person to the police is inconsistent with the plea of guilty.
3. The trial judge showed bias by sentencing the 3rd accused person to the maximum punishment when the alleged crime is not a capital offence.
4. The trial judge erred in law in convicting and sentencing the 3rd accused Person/Appellant on counts 1, 2 and 3 of the Information.

In obedience to the Rules of this Court, the parties filed and exchanged briefs of arguments. The Appellant’s Brief of Arguments is dated the 23/10/12 and filed the 24/10/12. Therein, the Appellant formulated seven (7) issues for determination out of the four (4) Grounds of Appeal. The Respondent’s Brief of Arguments is dated the 25/4/2013 and filed the same date, but deemed filed the 10/6/2013. Three (3) issues were formulated by the Respondent at page 6 of the Respondent’s Brief of Arguments. Before I proceed however, I wish to point out again that the Appellant distilled seven issues for determination out of the four Grounds of Appeal filed.

It is due to the above stated reason that learned counsel for the respondent drew out attention to the number of issues formulated by the appellant, which he submits are proliferated. He however cited the case of Amadasun v. Atirie (2010) All FWLR (Pt. 505) p. 1728 at 1744 paras F-H, to contend that the proliferation of issues will not nullify the Appellant’s brief.

It is not in doubt that learned counsel for the Appellant formulated seven issues out of the four grounds of appeal. It is settled law that, although counsel is at liberty to formulate an issue out of a ground of appeal, he is not permitted to formulate two or more issues out of one ground of appeal. It is equally true that, while counsel may formulate fewer issues than the number of grounds of appeal he cannot formulate more issues than the grounds of appeal. Thus Tabai, JSC in the case of Teriba v. Adeyemo (2010) 11 NWLR (Pt. 1211) p. 242 at 255 paras. D – E held that:

The settled principle is that it is not proper to proliferate issues for determination to the extent of their out numbering the grounds of appeal. This is because, issues must of necessity be predicated on or arise from grounds of appeal; they can only be either equal to or less than the grounds of appeal and not more. Thus, while two or more grounds of appeal can by some dexterity, be considered in an issue, it is not desirable to split a ground of appeal into a number of issues…”