EKELE V FRN

EKELE V FRN


IN THE COURT OF APPEAL
IN THE ABUJA JUDICIAL DIVISION
HOLDEN AT ABUJA

ON FRIDAY, 13TH JULY, 2018


Appeal No: CA/A/238C/20 7
CITATION:

Before Their Lordships:

ABDU ABOKI, JCA

PETER OLABISI IGE, JCA

EMMANUEL AKOMAYE AGIM, JCA


BETWEEN

JOHN EKELE

(APPELLANT)

AND

FEDERAL REPUBLIC OF NIGERIA

(RESPONDENT)


PRONOUNCEMENTS


A. CONSTITUTIONAL LAW
1. Presumption of Innocence – Constitutional provision of presumption of innocence

What the constitutional provision of the presumption of innocence of an accused in a criminal trial entails

“The presumption of innocence is the legal principle in criminal cases that one is considered innocent until proven guilty. This basically means that until a judicial pronouncement on the guilt or otherwise of the accused person is made, he/she is to be treated the same as a regular person, any suggestion to the opposite would be a breach of the fundamental human rights of the individual.
Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 as amended guarantees this right.”Per IGE, JCA read in context

B. EVIDENCE
2. Burden of Proof/Standard of Proof – Burden and standard of proof in criminal cases

“The burden of proving the guilt of an accused person is on the prosecution. The prosecution is given the responsibility of producing enough evidence and arguments to prove the guilt of criminal/defendants beyond reasonable doubt. No matter what indictment or formal charges ore brought against the defendant, and no matter what the personal feeling of those involved may be, if government prosecution cannot decisively demonstrate the defendant’s guilt in trial then that Person is legally not guilty.
Proof beyond reasonable doubt is the standard of proof used to convict defendants charged with crimes in our criminal justice system. It is proof that makes the Court firmly convinced of the defendant’s guilt. That no other legal explanation can be derived from the facts except that the defendant committed the crime, thereby overcoming the presumption that a person is innocent until proven guilty as prescribed in Section 36(5) of the Constitution.
Generally, the prosecution bears the burden of proof and is required to prove their version of events beyond reasonable doubt. See Section 135(1) of the Evidence Act 2011. This means that the proposition being presented by the prosecution must be proven to the extent that there could be no “reasonable doubt” in the mind of a “reasonable person” that the defendant is guilty. See:- 1. AHMED V THE STATE
(1999) 7 NWLR (PART 612) AT 673:

2. ASUQUO BASSEY V. STATE (SC.298/08)”Per IGE, JCA read in context

3. Standard of Proof – Nature of proof beyond reasonable doubt

Required standard of proof in criminal trials and the nature of proof beyond reasonable doubt

“It is to be reiterated that in criminal matters such as the one here the standard of proof is beyond reasonable doubt. This is a principle that is fundamental and sacrosanct and in establishing that required standard of proof, all the essential elements or ingredients must be proved on that standard. This is because the ingredients are cumulative and none should be found lacking before the proof beyond reasonable doubt is said to have been met. Therefore once all those vital ingredients are established although beyond reasonable doubt the Court is enabled to convict the accused. See:-
1. FATAI OLAYINKA V. STATE (2007) 9 NWLR (PT. 1040) 56.

2. OSENI V. STATE (2012) 2 SC (PT. 11) 51.

One thing that is certain is that where all the essential ingredients of the offence charged have been proved or established by the prosecution as done in this matter, the charge is proved beyond reasonable doubt.”Per IGE, JCA read in context

C. LEGAL PRACTITIONER
4. Stamp/Seal –

Effect of failure to affix the approved seal and stamp of the Nigerian Bar Association on a legal document

“Now on issue four, the learned Counsel to the Appellant did not cite any authority to show that where a Legal Practitioner that signed a Criminal Charge did not show evidence of payment of professional fees the criminal trial will be null and void. I believe that a distinction must be drawn between competence of a Court to adjudicate on a matter and effect of failure to affix stamp of the learned Counsel who signed a process on the jurisdiction of a Court to hear and determine criminal matter. The jurisdiction to try the offences charged against the Accused person can be found in Section 19 of the Economic and Financial Crimes Commission Act 2004.
More importantly the plea of the Appellant and other co-accused were dully taken and upon pleading not guilty to the counts contained in the Charge the Accused/Appellant had put himself willy nilly on trial. He cannot now rely on failure to affix stamp to the Charge by the person who signed the Charge to escape justice. After all there is no doubt that the person who signed the Charge is a Legal Practitioner called to the Nigerian Bar. See AISHATU ABUBAKAR SUKU Vs AISHA MAMAN GOMA (2018) LPELR – 44650 CA 1 AT 29 – 30 per OHO, JCA who said:-“In respect of the Respondent’s failure to affix the stamp and seal of the Nigeria Bar Association to its processes and the contention of the Appellant that this contravenes the provisions of Rule,10(3) of the Rules of Professional Conduct 2007, the attitude of the apex Court is encapsulated in the decision of the Court in the case of SARKIN YAKI vs BAGUDU (2015) 64 NSCQR 93 AT 100 on the subject to the effect that the document so signed or filed shall be deemed not to have been properly signed or filed and that does not mean that the document is null and void or incompetent like the case of a process signed in the time of a corporation or association as in the case of OKAFOR VS NWEKE (2007) 10 NWLR (PT.1043) 521 SC. In the said case of SARKIN YAKI vs BAGUDU (Supra) the apex Court per ONNOGHEN, JSC (As he then was but now CJN) is of the view that the process filed in breach of Rule 10 can be and its signing and filing regularized by affixing the seal and stamp since it is only a legal document improperly filed. In essence therefore, the position is therefore settled that the effect of the failure to affix the stamp/seal does not invalidate the process filed without the seal. It remains a mere irregularity that should not void the Respondent’s processes at the Court below.”Per IGE, JCA read in context


LEAD JUDGMENT DELIVERED BY IGE, J.C.A


This appeal is against the Judgment of KOGI STATE HIGH COURT OF JUSTICE holden at OKENE in charge No.ID/9C/2011 delivered by HON. JUSTICE J. J. MAJEBI.

The charge was commenced against four Accused persons but when the first Accused person died the Charge was amended.

The Charge as amended reads:-“COUNT ONE

“That you, JOSEPH Y. AGBO (being a Staff of Bassa Local Government Council of Kogi State), JOHN EKELE (being a Staff of Bassa Local Government Council of Kogi State) and ABUBAKAR ADAMU CALIUS ABDULLAHI HARAUNA carrying on Business under the name and style of “Mando Global International” sometime between September and December, 2008 in Bassa within jurisdiction of the High Court of Kogi State, did conspire among yourselves do an illegal act, to wit: criminal breach of trust and hereby committed an offence punishable under Section 97(1) of the Penal Code Law of Kogi State.

COUNT TWO

That you, JOSEPH y. AGBO (BEING A Staff of Bassa Local Government Council of Kogi State) and JOHN EKELE (being a Staff of Bassa Local Government Council of Kogi State) sometime between September and December, 2008 in Bassa within the jurisdiction of the High Court of Kogi State, being entrusted with dominion over certain property, to wit: the sum of N100,000,000= (One Hundred Million Naira), obtained as loan on behalf of Bassa Local Government Council from Intercontinental Bank Plc, Lokoja Branch, committed Criminal Breach of Trust in respect of the said: sum which was dishonestly converted to your own use in violation of the direction of law in which such trust was to be discharged and thereby committed on Offence punishable under Section 3 5 of the Penal Code Law of Kogi State.

COUNT THREE

That you, JOSEPH Y. AGBO (being Staff of Bassa Local Government Council of Kogi State) and JOHN EKELE (being staff of Bassa Local Government Council of Kogi State) sometime between November and December 2008 in Bass within the jurisdiction of the High Court of Kogi State, being entrusted with dominion over Certain property, to wit: the sum of N60,000,000= (Sixty Million Naira) obtained as loan on behalf of Bassa Local Government Council from Intercontinental Bank Plc, Lokoja Branch, committed Criminal Breach of Trust in respect of the said sum which was dishonestly converted to your own use in violation of the direction of law in which such trust was to be discharged and thereby committed on Offence punishable under Section 315 of the Penal Code Law of Kogi State. COUNT FOUR

That you, ABUBAKAR ADAMU (Alias Abdullahi Haruna carrying on Business under the name and style of (“Manda Global International”) sometime between October 2008 and April 2008 in Bassa within the jurisdiction of the High Court of Kogi State, being entrusted with dominion over certain property, to wit: t h e s u m o f N 2 , 0 0 0 . 0 0 0 = ( T w o M i l l i o n Naira), belonging to Basso Local Government Council which was part of N4,301,000= (Four Million, Three Hundred and One Thousand Naira) released to you for the purpose of executing a contract for the renovation and furnishing of Basso Local Government Council Hall and Council Leader’s Office, committed Criminal Breach of Trust in respect of the said N2,000,000= (Two Million Naira) which was dishonestly converted to your own use in violation of the direction of law in which such trust was to be discharged and thereby committed an Offence punishable under Section 315 of the Penal Code Law of Kogi State.”

The matter proceeded to trial and the Appellants testified for themselves and tendered documents . The Respondent/Complainant called two witnesses and also tendered documents. After hearing and evaluation of the testimonies of the witnesses, the learned trial Judge held that the prosecution has proved its case against the accused persons beyond reasonable doubt and thus convicted them accordingly.

The Appellant was aggrieved by the Judgment and has now vide his Amended Notice of Appeal dated 29th day of September, 2017 and filed on 3rd day of October, 2017 appealed to this Court on eleven grounds which without their particulars are as follows:

“GROUND 1.

The decision of the trial Court is unreasonable, unwarranted and cannot be supported having regards to the evidence adduced at the trial. GROUND 2.

The learned trial Judge erred in law when he concluded as follows:

“The appearance of the prosecuting counsel cannot be faulted as it is not in dispute that he has been called to the Bar to practice as a Barrister and Solicitor of the Supreme Court of Nigeria as provided for in Section 2 (1) (2) (3) and 4 of the Legal Practitioner

Act.”

GROUND 3.

The Learned trial Judge erred in law by holding that: “the final written address of the learned counsel for the complainant is incompetent and is hereby discountenanced. This I hold does not render the entire proceedings as canvassed by the learned counsel for the Accused person a nullity.” GROUND 4

The Court misdirected itself when it concluded that:

“the purchase of the 3 Toyota Carina Cars and Honda CRV Jeep for their own use no doubt accord them wrongful gain and wrongful loss to Bassa Local Government.”

GROUND 5

The learned trial judge erred in law when he sentenced and convicted the appellant/convict to 2 years imprisonment, whereas the evidence adduced by the prosecution before the Court did not prove the case against the appellant beyond reasonable doubt as required by law.

GROUND 6

The learned trial judge erred in law by assuming Jurisdiction to try and convict the Appellant when he had no jurisdiction thereby occasioned a miscarriage of justice.

GROUND 7

The Learned Trial Judge erred in law when he held that since the Appellant was a joint signatory of a public account, he had dominion over the loan obtained and thereafter proceeded to hold that the first ingredient on proof of criminal breach of trust had been proved against him. GROUND 8

The Learned Trial Judge erred in law and on the facts when he held that the Appellant failed to utilize the loan for the purpose for which it was obtained and presumed that three Carina Toyota Cars consumed the entire loan which stood at N160,000,000.00 (one hundred and sixty million naira only); thereby occasioning a miscarriage of justice. GROUND 9

The Learned Trial Judge erred in law in holding that the prosecution had proved his case beyond reasonable doubt against the appellant when in fact, the prosecution failed to establish all the ingredients of the offences charge.

GROUND 10

The Learned Judge erred in law when he held that:-“I hold that the accused persons failed to rebut the presumption of guilt against them or cast reasonable doubt on the case of the prosecution by preponderance of probability” and therefore accession as miscarriage of justice.”

GROUND 11

The Learned Trial Judge erred in law when he failed to consider the defence of the Appellant alongside the case of the Respondent but concluded that the Appellant admitted the offences charged.”

The Appellant filed his Appellant’s Brief of Argument dated 29th September, 2017 on 3rd October, 2017. It was deemed filed on 22nd January, 2018. The Respondent’s Argument was dated and filed on 25th January, 2018.

The learned Counsel to the Appellant M. Y. Abdullahi, Esq., formulated four issues for determination viz:-

“(1) Whether the trial Court was right to have placed on the Appellant the presumption of guilt as against the constitutional presumption of innocence? (Distilled from Ground Ten)

(2) Whether the trial Court was not wrong to have held that the Respondent had proved the ingredients of the offences charged against the Appellant beyond reasonable doubt. (Distilled from Grounds One, Four, Five, Seven, Eight and Nine)

(3) Whether the trial Court was not wrong when he failed to dispassionately consider the defence put forward by the Appellant. (Distilled from Ground Eleven).

(4) Whether the trial Court had jurisdiction in the circumstance of the case.”

The learned Counsel to the Respondent T. N. NDIFON, ESQ. distilled four issues for consideration namely-

A. Whether from the totality of the evidence adduced by the Prosecution, the learned Trial Judge was right to have held that the Prosecution/Respondent had proved and was able to establish the ingredients of the offences charged against the Appellant beyond reasonable doubt, warranting the Trial Court to convict the Appellant on counts one, two and three. (This issue is distilled from grounds 1, 4, 5, 7, 8 and 9 of the Amended Notice of Appeal).

B. Whether during a criminal trial, the prosecution having presented evidence in proof of the essential elements of the offence charged, and the accused person having been called to offer his own explanations in order to controvert the credible evidence of the prosecution, amounts to placing on the Appellant the presumption of guilt as against the constitutional presumption of innocence. (This issue is distilled from ground 10 of the Amended Notice of Appeal).

C. Whether the learned trial judge properly and dispassionately considered and evaluated the evidence led during trial including the evidence adduced by the Appellant as DW2 before arriving at the conclusion to which the Appellant was convicted on Counts one, two and three of the Charge. (This issue is distilled from Ground 11 of the Amended Notice of Appeal).

D. Whether the use of NBA Seal of J.O. UZOR, Esq prosecutor in the employment of the EFCC, a senior colleague and a team leader instead of that of T. N. NDIFON, Esq., on the Final Written Address of the Prosecution nullifies all the processes filed and the proceedings conducted by the prosecution to rob the Trial Court of the jurisdiction to entertain and deliver its judgment based on the evidence adduced by the parties before the Trial Court. (This issue is distilled from Grounds 2, 3 and 6 of the Amended Notice of Appeal).

I am of the view that the four issues as formulated by the Appellant can be utilized to determine the merit or otherwise of the appeal herein. I will treat them in sequence.

ISSUE 1

Whether the trial Court was right to have placed on the Appellant the presumption of guilt as against the constitutional presumption of innocence? (Distilled from Ground Ten)

The learned Counsel to the Appellant submitted that an accused person is presumed innocent until he is proved guilty and it is an ironclad principle that the duty is on the prosecution to prove the charge against him beyond reasonable doubt. He cited the cases of:-

1. MBONDEJO V FRN (2013) 7 NWLR (PT. 1353) AT 315, para D;
2. WILLIAMS V STATE (1992) 8 NWLR (Pt. 261) 515;

3. IGABELE V STATE (2006) 6 NWLR (Pt. 975) 100;

4. EZEUGO V STATE (2013) 9 NWLR (Pt. 1360) AT 581, para D.

That the Appellant pleaded not guilty to the offences he was charged which event the learned trial Judge acknowledged in his judgment on page 493 of the record of appeal.

That the Appellant never intended to misappropriate the loan sum and/or to convert the loan sum to his own use and that he did not sign out cheques for withdrawal from the loan for purposes other than for which they were meant.

That the trial Court erred in law when it placed a burden on the Appellant on page 504 of the record to prove his innocence by holding that the accused persons failed to rebut the presumption of guilt against them.

He urged this Court to resolve this issue in his favour.

In response, the learned counsel to the Respondent submitted that an accused person is presumed to be innocent until the prosecution has established his guilt beyond reasonable doubt. However, where during a criminal trial, the prosecution has proved its case beyond reasonable doubt by presenting evidence in proof of the essential elements of the offence charged, the burden shifts to the accused person to offer his own explanations in order to controvert the credible evidence of the prosecution. He cited the cases of:-

1. TAKIM V STATE (2014) LPELR 22667 AT 27-28, Paras E – A;
2. SECTIONS 135 and (3) of the Evidence Act, 2011.

That the trial Court did not place the burden of proving the accused’s innocence on the Appellant but rather it was based on an opportunity offered to him to make his own explanation in order to controvert the credible evidence of the prosecution, which he failed to controvert. He referred to Exhibits P12A & P12B and the evidence of PW1, PW2 & DW2 as well as Section 135(3) of the Evidence Act, 2011.

The presumption of innocence is the legal principle in criminal cases that one is considered innocent until proven guilty. This basically means that until a judicial pronouncement on the guilt or otherwise of the accused person is made, he/she is to be treated the same as a regular person, any suggestion to the opposite would be a breach of the fundamental human rights of the individual.

Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 as amended guarantees this right.

The burden of proving the guilt of an accused person is on the prosecution. The prosecution is given the responsibility of producing enough evidence and arguments to prove the guilt of criminal/defendants beyond reasonable doubt. No matter what indictment or formal charges ore brought against the defendant, and no matter what the personal feeling of those involved may be, if government prosecution cannot decisively demonstrate the defendant’s guilt in trial then that Person is legally not guilty.

Proof beyond reasonable doubt is the standard of proof used to convict defendants charged with crimes in our criminal justice system. It is proof that makes the Court firmly convinced of the defendant’s guilt. That no other legal explanation can be derived from the facts except that the defendant committed the crime, thereby overcoming the presumption that a person is innocent until proven guilty as prescribed in Section 36(5) of the Constitution.

Generally, the prosecution bears the burden of proof and is required to prove their version of events beyond reasonable doubt. See Section 135(1) of the Evidence Act 2011. This means that the proposition being presented by the prosecution must be proven to the extent that there could be no “reasonable doubt” in the mind of a “reasonable person” that the defendant is guilty. See:-

1. AHMED V THE STATE (1999) 7 NWLR (PART 612) AT 673:
2. ASUQUO BASSEY V. STATE (SC.298/08)

No onus of proof of innocence was placed on Appellant. The finding of the lower Court was that since the Prosecution proved the ingredients of the offences, the evidential onus of showing reasonable doubt shifted to Appellant under Section 135(3) of the Evidence Act, 2011. Issue one is resolved against the Appellant.

From the foregoing I hold that Issue 1 is resolved against the Appellant.

ISSUE 2

Whether the trial Court was not wrong to have held that the Respondent had proved the ingredients of the offences charged against the Appellant beyond reasonable doubt. (Distilled from Grounds One, Four, Five, Seven, Eight, and Nine)

Learned counsel submits that the Respondent failed to establish all the ingredients of the offences charged.

That the burden of proof in criminal cases which is proof beyond reasonable doubt never shifts from the prosecution. He cited Section 135(1) & (2) of the Evidence Act, 2011 and the cases of:-
1. OGUNTOLA V STATE (2007) 12 NWLR (PT.1049) P. 617:

2. AJOSE V. FRN (2011) 5 NWLR (PT. 1244) 455 AT 469:

3. TAJUDEEN A ABI V THE STATE (1993) 9 SCNJ 109.

That the Respondent while attempting to prove the ingredients of the offences of criminal conspiracy and breach of trust contrary to Section 97 and 315 of the Penal Code at the trial Court failed to establish the fact that the Appellant had dominion over the loan and account of Bassa Local Government. He relied on IBRAHIM & ORS V C.O.P. (2010) LPELR – 8984 (CA) Page 18 Paras B – E.

That the Appellant merely signed cheque for the release of funds which had been approved by the duly authorized bodies to execute certain projects and that the Appellant was not the contracting body for the projects to be executed neither was it on his schedule of duties to supervise the projects. That there is nothing on record by way of evidence that the Appellant personally gained anything from the loan the basis for which he was convicted.

That the Appellant only acted on the instruction of the then Chairman of the Local Government, Hon. Musa Gwatana.

That the Respondent failed to credibly prove the ingredients of the offences against the Appellant and that the failure ought to have created doubt in the mind of the trial Court. He relied on AUDU v. STATE (2016) 1 NWLR (PT. 1494) 557 AT 564, paras C – D.

He urged the Court to resolve this issue in his favour.

In response, learned Counsel to the Respondent submits that the Respondent established ingredients of the offences of conspiracy and criminal breach of trust by proving beyond reasonable doubt that the Appellant and others actually committed the offence charged, which led to the conviction of the Appellant. He relied on IORTIM V STATE (1997) 2 NWLR (PT. 490) 711 AT 732 as well as Section 135 of the Evidence Act, 2011.

That from the totality of evidence adduced by the prosecution, and documents tendered and admitted in evidence, the essential ingredients of the offences of conspiracy and criminal breach of trust as contained in Counts one, two and three in the Charge were established and proved beyond reasonable doubt.

That the accused/Appellant was given the opportunity to controvert the vital credible evidence proffered against him by the prosecution, but he failed to do so in his defence, thus, warranting the conviction of the accused/Appellant on the three Counts.

That a free and voluntary confession by an accused, if direct and positive, duly mode and satisfactorily proved, is sufficient to ground a conviction. He relied on EMEKA V STATE (2001) 14 NWLR (PART 734) 666 AT 682 Paras. E – F.

That the confessional statement of the Appellant on pages 86 – 87 admitted in evidence as EXHIBIT P20 and that of other two convicts pages 74 – 85 of the Records of Appeal admitted in evidence as EXHIBITS P15, P16 and P17 corroborated themselves. Also by the evidence of PW1 and PW2, and the evidence elicited during cross examination from DW1, DW2 and DW3 which are clearly consisted of the confessional and circumstantial evidence were sufficient beyond reasonable doubt to convict the Appellant and other two convicts for the offence of conspiracy.

That from EXHIBITS P20 & P15, being the confessional statements of the Appellant and 1st Accused/convict, they admitted committing the offence by purchasing the three Toyota carina cars for themselves and a Honda CRV Jeep for the office of the first lady of Bassa Local Government council from the N160,000,000.00 loan proceeds, even though the cars were not among the purpose for which the loan was granted. The Respondent’s counsel urged the Court to resolve this issue in his favour.

It is to be reiterated that in criminal matters such as the one here the standard of proof is beyond reasonable doubt. This is a principle that is fundamental and sacrosanct and in establishing that required standard of proof, all the essential elements or ingredients must be proved on that standard. This is because the ingredients are cumulative and none should be found lacking before the proof beyond reasonable doubt is said to have been met.

Therefore once all those vital ingredients are established although beyond reasonable doubt the Court is enabled to convict the accused. See:-

1. FATAI OLAYINKA V. STATE (2007) 9 NWLR (PT. 1040) 56.
2. OSENI V. STATE (2012) 2 SC (PT. 11) 51.

One thing that is certain is that where all the essential ingredients of the offence charged have been proved or established by the prosecution as done in this matter, the charge is proved beyond reasonable doubt. The Respondent actually established and proved all the ingredients of the offences for which Appellant was charged. The Appellant’s confessional statement also corroborated and admitted the charges against the Appellant.

Thus, issue two is resolved against the Appellant.

ISSUE THREE

Whether the trial Court was not wrong when he failed to dispassionately consider the defence put forward by the Appellant. (Distilled from Ground Eleven).

Learned counsel to the Appellant submits that it is trite law that a trial Court is under o duty to consider and evaluate all the defences available to an accused person, placed before it. He relied on NWANGA NWUZOKE V THE STATE (1988) 2 -SC (PT.11) 274.

That it is settled law that it is not enough for a Judge to state that he either believes or disbelieves a witness or witnesses (in this case the Appellant). He must go to state the basis of his belief or disbelief. He relied on BOZIN v THE STATE (1998) A.C.L.R P1.: (2) ADEBAYO IDOWU V THE STATE (2011) LPELR – 3597 (CA).

That if the trial Judge had considered the defence of the Appellant vis-a-vis the evidence of PW1 and PW2, he would not have concluded as he did. Learned counsel urged this Court to resolve this issue in favour of the Appellant.

In response, learned counsel to the Respondent submits that the trial Court duly and dutifully considered and evaluated the defences put forward by the Appellant as DW2, including That of DW1 contrary to the Appellant’s submissions, and notwithstanding that the testimony of the Appellant testified as DW2 is at variance with his extra judicial statement admitted as Exhibit P20.

That it is trite law that where the evidence of an accused at the trial goes contrary to his earlier statement to the Police, such testimony is usually treated as unreliable and therefore ignored. He relied on MBENU v THE STATE (1988) 7 S.C. (PT. 111) 71 AT 82 para 15.

That it is trite law that a Court may convict an accused person on his extra judicial confession which is voluntary and true but inconsistent with his evidence in chief in Court. He relied onEGBOGHONOME V STATE (1993) 7 NWLR (Pt. 305) AT 383. That the Appellant did not in any way impeach nor discredit the evidence of PW1 and PW2 by way of cross examination.

That the Court should afford on opportunity to the accused to explain each and every circumstance and incriminating evidence against him. The attention of the accused must specifically be brought to exculpatory pieces of evidence to give him on opportunity to offer an explanation if he chooses to do so. Therefore, the Court is under a legal obligation to put the incriminating circumstances before the accused and solicit his response.

I am of the firm view that from the facts and circumstances of this case, it is evident that the trial Court properly evaluated and considered the defence of the Appellant. The evidence on printed record is unassailable and findings of trial Court is not perverse.

Issue 3 is resolved against the Appellant.

ISSUE FOUR

Whether the trial Court had jurisdiction in the circumstance of the case. (Distilled from Ground 2, 3 and 6).

Learned counsel to the Appellant submits that the Respondent’s case is not competent because the prosecuting Counsel failed to pay his practicing fee as well as stamp and seal fees. He relied on Rules 9(1) and (2); 10(1), (2) and (3); and 12(1)(2) and (3) of the Rules of Professional Conduct, 2007, and Section 2 of the Legal Practitioner Act.

That the trial Court was wrong to hold that the appearance of the prosecuting Counsel cannot be faulted as it is not in dispute that he has been called to the Bar to practice as Barrister and Solicitor of the Supreme Court of Nigeria as provided for in Section 2(1), (2), (3) and (4) of the Legal Practitioner Act. Learned Counsel urged this Court to resolve this issue in favour of the Appellant.

In response, the learned Counsel to the Respondent submits that the Rules of Professional Conduct does not override the Constitution or the Legal Practitioners Act being the primary law of the land. The Legal Practitioners Act, which the Rules of Professional Conduct is subject to, allowing a law officer in the civil service of the Federation or of a State who has been called to the Bar, notwithstanding whether he has been paying his practicing fee or not, to practice as a Barrister and Solicitor in any Court in Nigeria, and also to initiate criminal prosecution on behalf of the agency he works for, particularly as in this case, the EFCC being an institutional body vested with the power to check, prevent and investigate economic and financial crimes and even to prosecute the offenders. He relied on Sections 2(1), 3(b) and 8(2) of the Legal Practitioners Act.

He urged the Court to resolve this issue in his favour.

Now on issue four, the learned Counsel to the Appellant did not cite any authority to show that where a Legal Practitioner that signed a Criminal Charge did not show evidence of payment of professional fees the criminal trial will be null and void. I believe that a distinction must be drawn between competence of a Court to adjudicate on a matter and effect of failure to affix stamp of the learned Counsel who signed a process on the jurisdiction of a Court to hear and determine criminal matter. The jurisdiction to try the offences charged against the Accused person can be found in Section 19 of the Economic and Financial Crimes Commission Act 2004. More importantly the plea of the Appellant and other co-accused were dully taken and upon pleading not guilty to the counts contained in the Charge the Accused/Appellant had put himself willy nilly on trial. He cannot now rely on failure to affix stamp to the Charge by the person who signed the Charge to escape justice. After all there is no doubt that the person who signed the Charge is a Legal Practitioner called to the Nigerian Bar. See AISHATU ABUBAKAR SURU Vs AISHA MAMAN GOMA (2018) LPELR – 44650 CA 1 AT 29 – 30 per OHO, JCA who said:-

“In respect of the Respondent’s failure to affix the stamp and seal of the Nigeria Bar Association to its processes and the contention of the Appellant that this contravenes the provisions of Rule,10(3) of the Rules of Professional Conduct 2007, the attitude of the apex Court is encapsulated in the decision of the Court in the case of SARKIN YAKI vs BAGUDU (2015) 64 NSCQR 93 AT 100 on the subject to the effect that the document so signed or filed shall be deemed not to have been properly signed or filed and that does not mean that the document is null and void or incompetent like the case of a process signed in the time of a corporation or association as in the case of OKAFOR VS NWEKE (2007) 10 NWLR (PT.1043) 521 SC. In the said case of SARKIN YAKI vs BAGUDU (Supra) the apex Court per ONNOGHEN, JSC (As he then was but now CJN) is of the view that the process filed in breach of Rule 10 can be and its signing and filing regularized by affixing the seal and stamp since it is only a legal document improperly filed. In essence therefore, the position is therefore settled that the effect of the failure to affix the stamp/seal does not invalidate the process filed without the seal. It remains a mere irregularity that should not void the Respondent’s processes at the Court below.”

Issue 4 is resolved against the Appellant.

In the result the Appellant’s appeal has no merit and it is hereby dismissed.

The judgment of KOGI STATE HIGH COURT delivered on 5/5/2016 by HON. JUSTICE J. J. MAJEBI in Charge No.ID/9C/2011 convicting and sentencing the Appellant on Charges/Counts against him is hereby affirmed.

ABOKI, JCA

I had the privilege of reading before now, a draft of the lead judgment just delivered by my Learned Brother PETER OLABISI IGE, JCA. His Lordship has prudently and diligently dealt with the issues that arose for determination.

I agree with his reasoning and conclusion that the appeal lacks merit and ought to be dismissed. These findings and conclusions flowed from the evidence adduced at the trial.

It is on account of this that I also find the appeal to be devoid of merit and same is accordingly dismissed.

I abide by the orders contained in the lead judgment.

AGIM, JCA

I had a preview of the judgment just delivered by my Learned brother, PETER OLABISI IGE JCA. I agree with the reasoning, conclusions and orders therein.

Appearances:

M. Y. Abdullahi, Esq. with him, H. O. Umar, Esq. and J. O. Yesufu For Appellant(s)

T. Ndifon, Esq. For Respondent(s)