UMOH EKPO VS THE STATE
April 11, 2025JULIUS BERGER NIGERIA PLC v. ALMIGHTY PROJECTS INNOVATIVE LIMITED & ANOR
April 11, 2025Legalpedia Citation: (2018-02) Legalpedia (SC) 14983
In the Supreme Court of Nigeria
HOLDEN AT ABUJA
Thu Feb 22, 2018
Suit Number: SC.670/2014
CORAM
PARTIES
AIMUAMWEHI FRIDAY OSAREREN APPELLANTS
FEDERAL REPUBLIC OF NIGERIA RESPONDENTS
AREA(S) OF LAW
SUMMARY OF FACTS
The Appellant was the 1st accused person before the Federal High Court, Benin City, charged on eleven (11) counts, alleging that he and two others conspired to commit the offence of obtaining money from an American, Cynthia Taylor, by false pretence and that they committed the offence of obtaining by false pretence various sums of money on diverse dates between May and December, 2008. The Appellant and two others pleaded not guilty to the charges. Thereafter two witnesses testified and tendered several documents. At the close of the prosecution’s case, and before the accused persons opened their defence, the prosecution submitted amended charge to which the three accused persons, each, pleaded “not guilty” afresh to each of the 11 charges. The accused persons, particularly the Appellant entered his defence. Finding that the prosecution had proved their case against the Appellant, the three accused persons were convicted and sentenced to various terms of imprisonment. The Appellant lodged his appeal against his conviction and sentence which was affirmed by the Court below hence this further appeal.
HELD
Appeal Dismissed
ISSUES
Whether the decision of the Court below is not marred by unfairness and lack of fair hearing by their deliberate refusal to countenance and determine various germane issues laid before them by the Appellant? Whether the Court below was right in affirming the conviction and sentence of the Appellant in respect of counts 8-11 of the charge? Whether the Court below was right in affirming the conviction and sentence of the Appellant in respect of counts 1-7 of the charge? Whether the learned justices of the Court below were right in refusing to declare the trial of the Appellant a nullity since the amended charge upon which it was based is an abuse of Court’s process?
RATIONES DECIDENDI
COMPETENCE OF COURT – IMPLICATION OF A DEFECT IN THE COMPETENCY OF COURT
“The implication of a defect in the competency of the Court is that any defect in the competence of the Court is fatal. It renders the proceedings a nullity no matter how well conducted the proceedings were: Madukolu V. Nkemdilim (1962) 1 ALL NLR(Pt. 4) 587; Egunjobi v. F.R.N. (2013) 3 NWLR (Pt. 1342) 257”
ESTOPPEL BY CONDUCT – WHETHER ESTOPPEL BY CONDUCT APPLIES TO STATUTORY RIGHTS
“I am aware that this Court in Menakaya V. Menakaya (2001) 9-10 SC 1; (2001) 16 NWLR (Pt. 738) 203 had stated that this specie of estoppel by conduct does not apply to statutory rights but only to personal rights. The MENAKAYA situation is distinguishable. In the instant case, the appellant can waive all niceties ensuring the protection of his personal right. He waived them. Since the MENAKAYA case, the principle of estoppel by conduct had been codified and made statutory by virtue of Section 169 of the Evidence Act, 2011. In MENAKAYA case the parties and their counsel gave the trial Judge, in a divorce petition, their consent that the judgment be delivered in chambers instead of open Court. The law enjoins, in order to demonstrate that justice is not only done but seen manifestly to be done, that trials and delivery of judgment shall be done in open. That is what makes it a public right.”
TECHNICALITY – ATTITUDE OF COURTS TO TECHNICALITIES
“Thus, as Aderemi, JSC stated in Yusuf V. Adegoke (2007) 6 SC (Pt. 1) 126; (2007) 11 NWLR (Pt. 1045) 332, a technicality in a matter could arise if a party is relying on abstract or inordinate legalism to becloud or drown the merits of case. In other words, it arises when a party holds or relies tenaciously unto the rules of Court with little or no regard to the justice of the matter. As far as he is concerned, like Shylock in the Merchant of Venice, the rules must be followed to the last sentence, the last word and the last letter. The party emphasising on technicality has little or no regard to the justice that would be sacrificed, or injustice that would be caused to the opponent. The attitude of the Courts, these days is to enthrone substantial justice without undue adherence to technicalities. Justice can only be done, as stated by Edozie, JSC in Adelusola V. Akinde (2004) 18 NSCQR 371; (2004) 12 NWLR (Pt. 887) 295, if the substance of the matter is examined.”
COURT OF APPEAL -WHETHER THE COURT OF APPEAL IS AT LIBERTY TO DECLINE THE CONSIDERATION OF THE ISSUES BEFORE IT
“As a general principle, the intermediate Court, as the Court below, is duty bound to consider all issues raised and or placed before it. It does not have the liberty to decline a consideration of the issues before it, unless it intends to order a retrial and the further consideration of the issues in the case will prejudice the fresh hearing being ordered: Edem V. Canon Balls Ltd (2005) 6 SC (Pt. II) 16; (2005) 12 NWLR (Pt. 938) 27. If the Court failed to consider issues raised and placed it before it without any valid reason, then it would have failed in its judicial duty and there is a failure of justice: Edem V. Canon Balls Ltd (supra) Ikpeazu V. Otti & Ors (2016) LPELR-4005 (SC); Okonji V. Njokanma (supra); Chukwu V. Soleh Boneh (supra)”.
ERROR OR MISTAKE IN THE JUDGMENT – NATURE OF ERROR OR MISTAKE IN JUDGMENT THAT RESULTS IN ALLOWING AN APPEAL
“Let me, from the onset, restate the law that not every error or mistake in the judgment results in allowing an appeal. The appeal Court will only interfere when the error or mistake is shown to have occasioned a miscarriage of justice: Abubakar v. B.O. & A.P. LTD (2007) 2 SC 48; (2007) 18 NWLR (Pt. 1066) 319; Unity Bank Plc V. Bouari (2008) 2-3 SC (Pt. 1) 1; (2008) 7 NWLR (Pt. 1086) 372. Because miscarriage of justice varies from case to case; the facts and circumstances of the case, where miscarriage of justice is alleged, must be examined: Abubakar Abubakar & Ors V. Saidu Usman Nasamu & Ors (2011) LPELR-1831 (SC). In effect the error resulting in miscarriage of justice is the mistake or error that is prejudicial or inconsistent with the right of a party. Oladija Sanusi V. Oreitan I. Ameyogun (1992) 4 NWLR (Pt. 237) 237 at 527. A wrongful conviction based on a failure of the process of trial, no doubt, constitutes a miscarriage of justice. That is because a grossly unfair outcome in a judicial proceeding constitutes a miscarriage of justice: BLACKS LAW DICTIONARY.”
ISSUES FOR DETERMINATION – FORMULATION OF ISSUES FOR DETERMINATION
“Competent issues for determination of an appeal are formulated or raised from competent ground(s) of appeal, which also flow directly from the reasons for the decision appealed. A valid ground of appeal attacks the decision of the Court on an issue decided by that Court: F.M.B.N. v. N.D.I.C. (1999) 2 NWLR (Pt. 591) 333.”
ISSUE FOR THE DETERMINATION – STATUS OF AN ISSUE FOR DETERMINATION NOT BASED ON THE DECISION APPEALED
“An issue for the determination of an appeal, like the appellant’s issue 3 at the Court below, which does not arise from the decision appealed is incompetent. An appellant, whose incompetent issue is allegedly ignored cannot complain of a miscarriage of justice.”
CONCURRENT FINDINGS OF FACTS BY LOWER COURTS – ATTITUDE OF THE SUPREME COURT ON CONCURRENT FINDINGS OF FACTS BY LOWER COURTS
“The attitude of this Court, on concurrent findings of facts by the trial Court and the intermediate Court, has since fossilized. Unless the appellant shows that there are special circumstances: that is that the conclusions reached were wrong or perverse, this Court will not readily interfere with the concurrent findings: Ibrahim V. Osunde & Ors (2009) 6 NWLR (Pt. 1137) 382 (SC); Omotola & Ors V. The State (2009) 7 NWLR (Pt. 1139) 148 (SC).”
CONCURRENT FINDINGS OF FACTS BY LOWER COURTS – ATTITUDE OF THE SUPREME COURT ON INTERFERENCE WITH THE CONCURRENT FINDINGS OF FACTS BY LOWER COURTS
“It is an established judicial policy of this Court that it will not readily and ordinarily interfere with the concurrent findings of facts by Courts below it, unless the appellant satisfactorily shows or establishes that the said concurrent findings are perverse, unreasonable and not supported by facts in the printed record: Bashaya V. The State (1998) 4 SC 199; (1998) 5 NWLR (Pt. 550) 351; Ogbu V. The State (1992) 10 SCNJ 88; (1992) NWLR (Pt. 259) 255; Ogundiyan V. The State (1991) 4 SCNJ 44, (1991) 3 SC 100.”
SENTIMENTS – WHETHER SENTIMENTS ARE PERMITTED IN JUDICIAL DELIBERATIONS
“Sentiments, it must be borne in mind, command no place in judicial deliberations: Ezeugo V. Ohanyere (1979) 6 SC 17; Mohammed Idrisu V. Modupe Obafemi (2004) 11 NWLR (Pt. 884) 396; Orji Uzor Kalu v. F.R.N. & ORS (2016) LPELR-40108 (SC).”
ALTERATION OF A CHARGE – IMPORT OD SECTION 162,163 &164 OF THE CRIMINAL PROCEDURE ACT ON THE ALTERATION OF A CHARGE
“162. When any person is arraigned for trial on an imperfect or erroneous charge, the Court may permit or direct the framing of a new charge or add to or otherwise alter the original charge.”
The above is applicable where an imperfect charge is before the Court. The Court may direct the prosecution to frame a new charge if he has not done so already. The judge has jurisdiction to direct the prosecution to frame a fresh charge when a charge is faculty.
Section 163 states that:
“163. Any Court may alter or add to any charge at any time before judgment is given or verdict returned any every such alteration or addition shall be read and explained to the accused.”
The power to alter a charge includes the power to substitute a fresh charge. A charge may be amended after closing speeches but before judgment is delivered provided that Section 164 of the Criminal Procedure Act is complied with. Any amendment can be made provided that there is no injustice to the accused person. See R v Kano & Arisah (1951) 20 NLR p. 32 Okwechima v. Police (1956) 1 FSC p.73
Section 164 of the Criminal Procedure Act provides for the alteration of a charge. It states that:
“164 (1) If a new charge is framed or alteration made to a charge under the provisions of Section 162 or Section 163 that Court shall forth with call upon the accused to plead thereto and to state whether he is ready to be tried on such charge or altered charge.
(2) If the accused declares that he is not ready, the Court shall consider the reasons he may give and if proceeding immediately with the trial is not likely in the opinion of the Court to prejudice the accused in his defence or the prosecutor in his conduct of the case, the Court may proceed with the trial as if the new or altered charge had been the original charge.
(3) If the new or altered charge is such that proceeding immediately with the trial is likely, in the opinion of the Court, to prejudice the accused or the prosecutor, the Court may either direct a new trial or adjourn the trial for such period as the Court may consider necessary.
(4) Where a charge is so amended, a note of the order for amendment shall be endorsed on the charge, and the charge shall be treated for the purpose of all proceedings in connection therewith as having been filed in the amended form.
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AMENDMENT OF A CHARGE- PROCEDURE FOR AMENDING A CHARGE – EFFECT OF A FAILURE BY AN ACCUSED PERSON TO PLEAD TO AN AMENDED CHARGE
“When it is the desire of a prosecutor to amend the charge or file a fresh charge, he files the process in the Registry and serves a copy of the process on the defence counsel. Leave means permission. An informal oral application is made to the trial judge in open Court to amend or file fresh charge/s and leave to amend is not formally granted by the judge. It is implied that leave has been granted when the accused person is called upon to plead to the amended charge or fresh charge. The fact that the accused person pleads to the amended charge is indicative of the fact that leave was obtained. Failure of the accused person to plead to the amended or fresh charge as provided by Section 164 of the Criminal Procedure Act renders the entire proceedings null and void. See R v. Eronini (1953) 14 WACA p.366, Adisa v. AG Western Nigeria (1965) 1 ALL NLR p.412.”
OFFENCE OF CONSPIRACY – NATURE OF THE OFFENCE OF CONSPIRACY
“On the offence of conspiracy, it is to be noted that it is an offence with the unique feature of being an offence usually concealed and often hatched in secret by the conspirators and so make it difficult to establish the physical contact among the persons who are said to have agreed to carry out an illegal act or perform a legal act through illegal means. Most of the essential element of the offence of conspiracy are made through circumstantial evidence or by inference from an overt act of the conspirators or one of them. The offence of conspiracy is complete when two or more persons have agreed to do something at the moment of the agreement or even in the future. It is of no moment that something was done or omitted to be done beyond the stage of the agreement between those persons who have agreed to prosecute the act. To expatiate further, it is to be said that the moment the meeting of the mind has been reached and thereafter one of the conspirators reneges, repents, acquires cold feet and stops interaction with the others or may no longer have opportunity to participate or carry out his role in the agreement the offence has been already committed. Again to be stated in this queer offence is that the conspirators need not know each other or meet at any point in time and this could mean their living in different towns, cities or even countries. It is enough that the conspirators have communicated at any point. For a fact it is an offence with damning features and a later change of mind at any given stage matters not. See Erim v. The State (1994) 5 NWLR (Pt. 345) 522 at 524; Omotola v. F.R.N. (1999) 12 NWLR (Pt. 682) 483 at 501-502.
Taking the matter of conspiracy further, the point has to be made that where two or more persons acting in concert and in furtherance of their common intention, each and every one of them is taken as liable for the consequence of the act that ensues. It is irrelevant which of the accused did what. Stated differently, where two or more persons act in concert in committing an offence any of them can be convicted for that offence, I rely on David Idiok v. State (2006) 12 NWLR (Pt. 993) 1.”
WITNESSES – WHETHER THE PROSECUTION IS OBLIGATED TO CALL A NUMBER OF WITNESSES IN PROOF OF ITS CASE
“The reason is that the law has not prescribed the category or the total number of witnesses the prosecution is obligated to call in order to prove its case. The choice of how to go about proving its case resides squarely on the prosecution and it is at liberty to conduct its case as it thinks best so long as what the prosecution proffered satisfies the standard expected in establishing the essential ingredients of a stated offence. It is not in all instances that the testimony of the complainant is necessary. Come to think of it, in a murder trial the victim dies and not in a position to speak for himself as to stating how things happened but murder trials are conducted successfully without even the body of the victim seen. If the prevailing circumstances are such that proof can be made in a criminal trial with or without the victim, so be it. See Nwaeze v. State (1996) 2 NWLR (Pt. 428) 1 at 6; Nwankwo v. F.R.N. (2003) 4 NWLR (Pt. 809) 1 at 34 & 94.”
JUDICIAL PROCESS – WHETHER JUDGES HAVE FORUM TO DEFEND THEMSELVES IN THE JUDICIAL PROCESS FOR POSITIONS THEY TAKE IN THEIR JUDGMENTS.
“Clearly there was no basis for the attack of counsel to the appellant on the learned trial judge save for a desperate intention to score a cheap point and win the case for his client at all cost with distorted facts even if it meant destroying the reputation and standing of a defenceless judge, carrying out his sworn duty. The conduct of counsel is deprecated and counsel is advised to desist from such. See Abdullahi v. F.R.N. (2016) All FWLR (Pt. 843) 1770 at 1794; Duru v. State (2017) All FWLR (Pt. 893) 1243 at 1282-1283; In Matthew Okechukwu Enekwe v. Int’l Merchant Bank of Nig. Ltd & Ors (2006) 19 NWLR (Pt. 1031) 146 at 774; Tobi, JSC cried out thus:-
“Judges have no forum to defend themselves in the judicial process for positions they take in their judgments. They cannot speak one more word outside their judgments in defence of the positions they have taken. Let parties be slow in pouring venom on them. It is a serious attack on a judge to say that he introduced in the case, new matters which were not before the Court. So much is involved as so much could be read into or out of the allegation. I will stop here, hoping that counsel will have some sympathy for judges, their partners in the smooth and successful administration of justice. It is only when judges and counsel are in some form of ‘romance’ that their joint partnership in the crusade for building the best justice system will be achieved in our legal system.” See also, Bolanle v. Abeke (2007) 9 NWLR (Pt. 1040) 411 at 432 paras B-E.”
CASES CITED
Not Available
STATUTES REFERRED TO
Advance Fee Fraud and Other Fraud Related Offences Act, 2006
