Golit V. Igp (2020)

LAWGLOBAL HUB Lead Judgment Report

AMIRU SANUSI, J.S.C.

This appeal emanates from the judgment of Court of Appeal, Abuja division (the lower Court) delivered on 28th January, 2018 which affirmed the judgment of the Court of first instance, the High Court of Justice Lokoja, Kogi State (the trial Court) delivered on 27th October, 2017.

The facts giving rise to this appeal are summarised below:

The appellant and two other persons were arraigned before the trial Court on a 21 count charge. At the close of the case of the prosecution, the appellant and the two other co-accused persons made a No Case Submission whereby the trial Court upheld the No Case Submission in respect of counts Nos. 2 to 21 of the amended charge, for failure on the part of the prosecution to adduce prima facie evidence to prove those offences. The trial Court however ordered the appellant and other co-accused persons to enter their defences on the first count of the amended charge which they proceeded to do. At the conclusion of the trial, the learned trial Judge discharged the 1st and 2nd accused persons but convicted the present appellant of the offence of conspiracy and

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sentenced him to one year imprisonment.

Dissatisfied with the conviction and sentence, by the trial Court, the appellant appealed to the Court of Appeal (i.e. the lower Court) albeit unsuccessfully as his appeal was dismissed. Further aggrieved by the judgment of the lower Court, the appellant further appealed to this Court.

In keeping with the rules and practice obtained in this apex Court, the learned counsel to the parties filed and exchanged briefs of argument. The appellant’s brief of argument which was settled by one Sylva Ogwemen SAN, was filed on 7th May, 2018. In the said brief of argument, six issues were proposed for determination by this Court which are reproduced hereunder-

1. Was the Court of Appeal right when it affirmed the conviction and sentence of the appellant on Count one (1) of the Amended Charge when the elements of agreement, mobilization and instigation introduced into the count of charge by the respondent were held not to have been proved by the trial Court? (Grounds 2, 4, 10 and 11 of the appellant’s notice of appeal).
2. Was the Court of Appeal right when it affirmed the conviction and sentence of the

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appellant on Count one (1) of the Amended Charge when in fact no offence known to law was disclosed in the said Count one (1) of the Amended Charge? (Grounds 1 and 7 of the Appellant’s Notice of Appeal.)

3. Did the Court of Appeal not deny the appellant of his fundamental right to fair hearing when the Appellant’s Reply brief dated and filed on 26th February, 2018 which answered all the issues raised by the respondent in the Respondent’s brief of argument was not considered by the Court of Appeal in its Judgment of 28th March, 2018? (Grounds 3 and 12 of the Appellant’s Notice of Appeal).
4. Was the Court of Appeal right when it affirmed the conviction and sentence of the Appellant to One (1) year imprisonment on the ground that Section 97 (1) of the Penal Code applies to the case of the appellant? (Ground 6 of the Appellant’s Notice of Appeal).
5. Was the Court of Appeal right when it affirmed the conviction and sentence of the appellant on the ground that the Appellant was part of the conspiracy when the evidence of the respondent before the Court was contradictory and when the evidence of the Appellant was not

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challenged under cross-examination in anyway or manner whatsoever? (Grounds 5 and 8 of the Appellant’s notice of appeal)

6. Did the High Court of Kogi State possess the jurisdiction to determine the Criminal Charge in Charge No: HCL/65C/2015 without any element of the alleged offence as charged occurring in Kogi State? (Ground 9 of the Appellant’s Notice of Appeal.)

On the other hand, the learned counsel for the respondent filed the respondent’s brief on 11/6/2018, wherein he formulated dual issues for determination which read as follows:-

A. Whether the circumstances of this, the lower Court is not right to have affirmed the conviction of the appellant by the trial Court notwithstanding elements of agreement, mobilization and instigation into count one (1) of the charge against the appellant?

B. Whether the lower Court has the jurisdiction to try the appellant in the High Court of Kogi State instead of the Edo State High Court of Justice?

SUBMISSIONS OF COUNSEL ON THE ISSUES FOR DETERMINATION

On the first issue, reference was made to the judgment of the lower Court at pages 333-334 and pages 364-365 of the

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record and submitted that the above holding by the trial Court amounts to a summersault (approbation and reprobating) on the part of the trial Court. He argued that the conclusion of the trial Court which the lower Court failed to consider in affirming the conviction and sentence of the appellant show that the evidence needed and the burden of proof required have not been discharged. He submitted that a Court could not approbate and reprobate at the same time. He cited the case of OFUANI V. NIGERIA NAVY (2007) 8 NWLR (PT. 1037) 470, 484.

Learned counsel also argued that the prosecution having introduced new element of agreement, mobilization and investigation must prove beyond reasonable doubt on how the appellant committed the alleged offence. He argued that there is nothing on the record to show that the appellant with the co-accused persons mobilized and instigated Festus, the youth leader, to commit the alleged offence. He urged the Court to resolve this issue in favour of the appellant.

Issue no 2 deals with whether the offence in count 1 is known to law.

​He argued that the offence with which the appellant is charged in count one was not

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stated in the charge and no particulars of any offence allegedly committed were provided in the charge. He submitted that the charge did not disclose any offence known to law upon which the appellant was convicted. He argued that despite the reference to Section 97 of the Penal Code in the count, this cannot cure the fundamental error complained about that the charge did not disclose an offence known to law. He submitted that where a charge contains no offence known to law, the jurisdiction of the Court to hear the case is ousted. He cited the case of IDEMUDIA V. THE STATE (1999) 7 NWLR (Pt. 610) pg 202 at 221-222, paragraph H-A. He urged this Court to hold that any proceedings conducted without jurisdiction is null and void.

Issue No. 3 deals with whether the appellant’s right to fair hearing was breached? On this issue, the learned appellant’s counsel contended that the Court did not consider the appellant’s answer in its reply brief at the lower Court. He submitted that in criminal trial, any defence raised by an accused person no matter how stupid or unreasonable must be considered. He referred to the case of KALU V. STATE (2017) 14

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NWLR (Pt. 1586) pg 522 at 599, paragraph F-G.

Issue No. 4 deals with whether Section 97 of the Penal Code applies to the case of the appellant.

He quoted Section 97(1) and (2) and argued that if there is no offence disclosed, hence the issue of commission of an offence and the punishment for that offence therefore does not arise. He argued that a person can only be a party to criminal conspiracy to commit an offence punishable with death or imprisonment, if such offence has been established in a Court of law. He submitted therefore that Section 97(2) of the Penal Code does not apply to the instant case because the appellant was not charged with criminal conspiracy under count one of the amended charge. He urged the Court to also resolve this issue in favour of the appellant.

​With regard to issue no 5 which queries whether the alleged contradictions in the respondent’s evidence and wherein the learned appellant’s counsel referred to the judgment of the trial Court at page 291 of the record, and argued that in the face of the above findings, there was nothing left on the charge that the appellant could be found by the lower Court to

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have participated in the offence on which a conviction could be made. He urged this Court to resolve this issue in favour of the appellant

Issue No. 6 deals with the jurisdiction of the High Court of Kogi State.

He referred to Section 4 of the Penal Code and submitted that by the wordings of the said provisions, the High Court Kogi State in order to exercise jurisdiction over appellant’s case, it must be shown that the general element, or any other acts or omission or event constituting the offence for which the appellant is charged occurred in Northern Nigeria. He argued that the territory where the alleged offence was committed is different from the territory where the appellant was eventually tried and committed. He argued that while the appellant was alleged to have committed the offence in Edo State, he was brought to Kogi State High Court for trial. He therefore submitted that the High Court of Kogi State does not possess the requisite jurisdiction to try the appellant because all the elements of the alleged offence took place in Okepella, Edo State and not in Lokoja or Okene in Kogi State. He there urged the Court to resolve this issue

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in favour of the appellant and to allow the appeal.

In responding to the argument of the appellant’s learned counsel, the learned counsel to the respondent distilled two issues for determination.

Issue No. 1 deals with whether the lower Court was right in affirming the decision of the trial Court. He submitted that given all the facts and circumstances of the case, the lower Court was right in affirming the conviction of the appellant. He referred to the evidence of PW3 and argued that the PW2-PW6 having met the appellant on the 19/09/16 and having been warned by the appellant not to come to the state again presupposes that the accused persons agreed and did mobilize, instigate etc is correct and appropriate in the charge.

​He referred the testimonies of PW2 – PW7 and submitted that the introduction of element of agreement, mobilization and instigation need not be proved beyond reasonable doubt. He argued further, that the appellant at this stage, cannot complain of any defect in the charge having been represented by a learned silk at the trial without any objection. He referred to Section 96 of the Penal Code and argued that to establish

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conspiracy, it is not necessary that the conspirators know each other as long as they know the existence and intention or purpose of their conspiracy. He argued that since PW2, PW3 and PW5 were taken to Bua cement where the appellant was Chief Security Officer, where he had discussion with Festus Oghene shows that the conspiracy was hatched by the appellant in connivance with Okpella Youths and the lower Court was therefore right in affirming the conviction of the appellant. He argued further, that the charge upon which the appellant was convicted did not state that the appellant was charged under Section 97(1) or (2) of the Penal Code, but rather under Section 97 of the Penal Code. He submitted that the purport of this provision is that the appellant can be convicted and punished for the offence of abatement under Sections 85-87 and 88 of the Penal Code.

​On issue no 2, he submitted that the High Court of Kogi State had jurisdiction to try the appellant. He argued that notwithstanding the misleading argument or submission of the appellant that reference was made to Okpella or Youth of Okpella Town, it does not translate that the offence was committed in

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Edo State, especially when it is a known fact that Okpella is a town in a boundary between Edo and Kogi States. He argued that there was nowhere in the charge where it was stated that the offence was committed in Okpella or any part of Edo State but rather, the conspiracy was planned in Edo State and the offence was executed at Okene in Kogi State, even though at the trial, none of the parties applied to move the Court to visit locus in quo in order to determine or find out the exact place where PW2 and PW4 were kidnapped. He then urged the Court to resolve this issue in favour of the respondent and to dismiss the appeal.

RESOLUTION OF ISSUES FOR DETERMINATION

In treating this appeal I think it will be appropriate to utilise the dual issues raised in the respondent’s brief of argument and in doing so, since the second issue raised therein, is centered on issue of jurisdiction, I will first of all consider it because issue of jurisdiction is the threshold and life wire of any matter.

​More so, looking closely at the two sets of issues raised by the parties, one can quickly conclude that the 6 issues raised by the appellant in his brief of

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argument have been adequately subsumed by the two issues raised in the respondent’s brief of argument. The said six issues raised in the appellant’s brief of argument besides being repetitive, are also verbose.

That being I deem it apt to determine this appeal by considering the two issues raised in the respondent’s brief of argument in treating this appeal.

For ease of reference and even at the peril of being repetitive, I shall reproduce below, the dual issues raised in the respondent’s brief of argument. The two issues read thus:-

ISSUE ONE (1)

Whether by the circumstances of this, the lower Court is not right to have affirmed the conviction of the appellant by the trial Court, notwithstanding elements of agreement, mobilization and investigation into count one (1) of the charge against the appellant

ISSUE TWO (2)

Whether the lower Court has the jurisdiction to try the appellant in the High Court of Kogi State instead of the Edo State High Court of justice.

I shall begin with the second issue set out supra. In arguing the 2nd issue above, the learned counsel referred to Section 4(2) of the Penal Code

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and argued that none of the elements of the offence in count one took place in Kogi State but rather, all the elements of the offence occurred in Okpella in Edo State and therefore Kogi State High Court which tried and convicted the appellant, had no jurisdiction and that only Edo State High Court is clothed with jurisdiction to try the appellant. The learned respondent’s counsel on the other hand, submitted that it was the mobilization, and agreement to commit the offence that took place in Okpella, Edo State while the actual commission of the offence took place in Okene in Kogi State which was within the territorial jurisdiction of Kogi State High Court (the trial Court).

​Now looking closely at the charge framed against the appellant, it is clearly disclosed that the actual commission of the offence took place in Okene in Kogi State and not in Okpella in Edo State. From the evidence revealed in the testimonies of the prosecution witnesses i.e. PWs 2, 5 and 7, the conspiracy to commit the offence was hatched in Okpella, Edo State while the actual commission of the offence which the appellant was tried and convicted took place or was committed in

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Okene in Kogi State.

In determining whether a trial Court had territorial jurisdiction to hear and determine the case, the issue of venue is to be determined by the trial Court which should ascertain the identity the offence(s) charged and the elements of the offences as contained in the proof of evidence with a view to ascertaining whether any of the acts constituting the offence occurred in a particular place. See Nyame v. FRN (2010) All FWLR (Pt. 527) 618; Joshua Chibi Dariye v. The FRN (2015) LPELR – 24398(SC). As clearly indicated in the charge and also as revealed in the proof of evidence, the offence was committed in Okene, Kogi State, hence the High Court of Kogi State (i.e. the trial Court) had rightly assumed Jurisdiction to hear and determine the offence. It is also worthy of note from the evidence adduced in the case, that Okpella is on the boundary of Edo and Kogi States. In a nutshell the Court of Appeal/lower Court was correct when it held that Kogi State High Court (the trial Court) had jurisdiction to hear and determine the case. The 2nd issue in the respondent’s brief which also tallies with issue No. 6 in the appellant’s

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brief of argument is hereby resolved against the appellant.

Issue No. 1

The first issue for determination raised in the respondent’s brief of argument raises the question whether the lower Court was not right in affirming the conviction of the appellant by the learned trial Judge on count one. As I stated supra, this issue has subsumed issues Nos. 1 to 5 decoded in the appellant’s brief of argument as it basically touches on issue or issue of proof of count one by the prosecution/respondent on which the appellant was convicted vide the amended charge. The law is trite, that before a trial Court could convict an accused person, it must be certain and fully convinced that all the elements of the offence were duly proved beyond reasonable doubt. I must emphasize here, that proof beyond reasonable doubt does not mean proof beyond shadow of doubt. It simply means or entails establishing the guilt of the accused person through the production of conclusive or compelling evidence. See Smart v. State (2016) 1-2 SC (Pt. II) 41 or (2016) 9 NWLR (Pt. 1518) 447 at 479/480; Irene Ejima Hassan v. State (2016) LPELR 42554 (SC).

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It is apt to note that the trial Court had, after duly analysing the evidence of PWs 2, 3 and 4 had, on page 291 of the record reached the following conclusion

“The evidence did not link the 1st and 2nd accused person (sic) with the offences of unlawful assembly, abduction, assault, criminal intimidation and robbery alleged in counts 2-21 of the charge. The essential elements of the same offences have also not been established against the 3rd accused person.”

To my mind, in view of the above conclusion by the trial Court, to the effect that the elements in counts 2 to 21 of the amended charge were not established, leading it (the trial Court) to discharge the accused persons for want of proof of those elements by the prosecution (that is to say that agreement, mobilization and instigation), one wonders why and how the same trial Court would now turn back or reverse to convict the appellant of count one, bearing in mind the fact that those elements apply and are also prevalent in the offence of count one while there was no additional evidence led by the prosecution to prove them and also did not introduce any new elements in count one. It is rather bizarre

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that the lower Court also failed or refused to consider the earlier stance of the trial Court (as quoted supra) but just proceeded to blankely affirm the finding of the trial Court in convicting and sentencing the appellant of the only existing count No one. By so doing, the trial Court had really approbated and reprobated at the same time, and that should not be the function of a Court of law.

Therefore, there is no gain saying, that the elements of the offence in count one had also not been established through any credible evidence as earlier held by the trial Court before it had somersaulted in the end to contradict itself by convicting the appellant on count one elements of which were not proved.

See George v. FRN (2014) 5 NWLR (Pt. 1399) 1 at 24; Ofuani v. Nigerian Navy (2007) 8 NWLR (Pt. 1037) 470 at 484.

I must emphasise that since the prosecution now respondent, had introduced fresh or new elements of agreement, mobilization and instigation in the amended charge, It thereupon becomes incumbent upon the prosecution to lead credible and compelling evidence to prove those elements in order to obtain conviction on the said offence and

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having failed to do so, the trial Court ought to have and must acquitted and discharged the appellants.

​Having failed to do so, the lower Court being the appellate Court is duty bound to set aside the conviction and sentence which it also failed to so do. Having a dispassionate look at the record, it clearly reveals that the prosecution/respondent failed to show or establish that the appellant had actually agreed with the co-accused person or that himself and his co-accused persons had really mobilized or instigated Festus Oghene, the youth leader, to perpetrate the commission of the offence. The trial Court had therefore goofed when after rejecting evidence adduced in proof of counts 2-21 then for it to later use the same rejected evidence and for it to use or apply same in convicting the appellant of the offence alleged in count one of the amended charge, more especially since no fresh evidence was adduced in proof of the offence. The learned Justices of the lower Court ought to have considered the approach adopted by the lower Court and to have set aside the conviction and sentence and not to affirm it same. I must make bold to say, that count one, on

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which the appellant was convicted and sentenced was short of having been proved beyond reasonable doubt and as such the conviction and sentence by the trial count ought to have been set aside and NOT affirmed. I therefore resolve this issue in favour of the appellant.

On the whole, I find merit in this appeal. It succeeds and is accordingly allowed by me. The conviction and sentence are hereby set aside and instead, the appellant is hereby acquitted and discharged. Appeal allowed.

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SC.410/2018