Msughter Gboko & Ors V. The State (2007)

LawGlobal-Hub Lead Judgment Report

BULKACHUWA, J.C.A.

The three appellants along with 3 others were alleged to have conspired and committed armed robbery at the Divine Love Catholic Girls Secondary School. Katsina-Ala and robbed both the school and its staff of about N182.000.00 on or about the 14th day of March, 1999.

The appellants were arrested for the offence arraigned before the High Court Benue State and charged with the offences of criminal conspiracy and armed robbery under section 5(b) and 1(2)(a) of the Robbery and Firearms (Special Provision) Act. Cap. 398. Laws of the Federation of Nigeria. 1990.

The appellants pleaded not guilty to the charges, and the matter proceeded to trial. The prosecution called five witnesses and tendered 4 exhibits, the supposed statements of the appellants. The appellants each testified in his defence but called no additional witness. The 1st appellant tendered one exhibit while testifying.

At the close of evidence and address by counsel the lower court delivered judgment on the 19/7/2002 finding the appellants guilty as charged and convicted and sentenced them to death.

The appellants being aggrieved by the judgment, have now appealed to this court based on separate notices and grounds of appeal. while the 1st and 2nd appellants being represented by one counsel filed a joint brief, the 3rd appellant filed a separate brief. In their joint brief of argument, the 1st and 2nd appellants identified these issues: for the determination of the appeal.

1. Whether or not the trial High Court was right when it admitted and convicted the appellants on the basis of exhibits 1, 1A and 2 when no trial within trial was conducted.
2. Whether or not the trial High Court was right when it tried the appellants under section 9(b) of the Robbery and Firearms (Special provisions) Act, Cap. 398, of the Laws of the Federation of Nigeria, 1990 but convicted them under an amended charge under section 5(b). of the same Act without taking their plea thereto.
3. Whether or not the trial High Court was right when it gave leave to the prosecution to prefer charges against the appellants when the statements of the PW5 and other investigating police officers were not attached to the proof of evidence.
4. Whether or not the trial High Court was right in convicting the appellants of the offences charged having regards to the totality of the evidence for the prosecution.
5. Was the trial court right in comparing the signatures in exhibits 1, 1A and 4 by invoking the provisions of section 108(1) of the Evidence Act without calling on the 1st appellant’s counsel to address it on the point
6. Were the appellants’ fundamental rights under section 36(6)(e) of the 1999 Constitution of the Federal Republic of Nigeria was violated by the trial High Court by its failure to have the proceedings interpreted to them in Tiv and Hausa languages, and whether the trial High Court had made up its mind to find the appellants guilty.

The 3rd appellant who originally was not a party to the appeal sought and obtained the leave of this court granted on 16/1/06 to be joined as a party and he thus became the 3rd appellant in the appeal.

In a separate brief settled by Aondoakaa, SAN. counsel for the 3rd appellant. the following issues were identified:

1. Whether or not the trial High Court was right when it admitted and convicted the appellant on the basis of exhibit 3 when no trial within a trial was conducted.
2. Whether or not the trial High Court was right when it tried the appellant under section 9(b) of the Robbery and Firearms (Special Provisions) Act, Cap. 398. LFN. 1990 but convicted him under an amended charge under section 5(b) of the same Act without taking his plea thereto.
3. Whether or not the trial High Court was right when it gave leave to the prosecution to prefer charges against the appellant when the statements of PW5 and other investigating police officers were not attached to the proof of evidence.
4. Whether or not the trial High Court was right in convicting the appellant of the offences charged having regards to the totality of the evidence for the prosecution.
5. Whether the appellant’s fundamental rights under section 36 of the 1999 Constitution of the Federal Republic of Nigeria, was violated by the trial High Court by failure to have the proceedings interpreted to him in Tiv language and failure to allow the appellant address the court on the issue of signatures on the exhibits raised suo motu by the court and whether the trial High Court had made up its mind to find the appellant guilty.

The respondent in its brief filed on 20th February, 2006 identified these issues for the determination of the appeal.

1. Whether the trial court was right in admitting the confessional statements of the appellants (exhibits 1, 1A, 2 and 3) in evidence without first conducting a trial-within-a trial and convicting them based on the same exhibits.
2. Whether the trial court was light when in its judgment it substituted section 9(b) in the charge with section 5(b) without taking another plea from the appellants.
3. Whether the appellants’ fundamental light under section 36(6)(e) of the 1999 Constitution of the Federal Republic of Nigeria were breached when the proceedings were not interpreted to the appellants from English language into the languages they understood.
4. Whether the trial court was right when it granted leave to the respondent to prefer charges against the appellants when the statement of the Police Officers were not attached to the proof of evidence.
5. Whether the court below was right in comparing the signatures of the 1st appellant in exhibit 1, 1A and 4 by invoking the provisions of section 108(1) of the Evidence Act without calling for addresses from counsel.
6. Whether the prosecution proved its case from the evidence adduced before the court as required by law.

The respondent raised a notice of preliminary objection and argued same in his brief of argument. This was replied to, in two separate replies by the 1st and 2nd appellants on one hand and the 3rd appellant on the other hand.

The preliminary objection is to the effect that the 1st and 2nd appellants grounds 5 and 6 and the 3rd appellant’s ground 6 in their respective notices and grounds of appeal and issue No.3 contained in paragraph 3.13 of the 1st and 2nd appellants’ brief of argument and issue NO.3 of the 3rd appellant’s brief of argument contained in paragraph 6.01 thereof are not competent before this court and should be struck out.

‘[he respondent maintained that the grounds of appeal and the issues raised under them were not pan of the judgment of the trial court which is the subject matter of this appeal. That the grounds being not an attack on the judgment of the lower court fall short of meeting the requirement of an appeal.

He points out that the grounds and issues relate to the leave granted to the respondent to prefer charges against the appellants on the 3/1/2002 which is a discretionary order on an interlocutory matter.

That to appeal against the said order/ruling, the appellants ought to have appealed within 14 days from the date leave was granted vide section 25(2)(a) of the court of Appeal Act 1976, That where there is failure by a party, as in the instant case, to appeal within the period stipulated by section 25(2)(a), to have a competent appeal, a party must first seek and obtain the leave of either the lower court or this court, Relying on Ogigie v. Obiyan (1997) 10 NWLR (Pt. 524) 179: (1997) 57 LRCB 2631: Onehi Okobia v. Ajanya (1998) 6 NWLR (Pt. 554) 348 the respondent submits that where the appellants adopt the procedure of including the appeal against the interlocutory order in the main appeal against the final decision of the court they must obtain leave of the court for their appeal against the interlocutory order to be valid.