SUNDAY V THE STATE

SUNDAY V THE STATE


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

ON FRIDAY, 17TH MARCH, 2017


Appeal No: CA/S/119C/2 16

CITATION:

Before Their Lordships:

HUSSEIN MUKHTAR, JCA

MUHAMMED LAWAL SHUAIBU, JCA

FREDERICK OZIAKPONO OHO, JCA


BETWEEN
SAMSON UWEM SUNDAY
(APPELLANT)

AND

THE STATE
(RESPONDENT)


PRONOUNCEMENT


A. CRIMINAL LAW AND PROCEDURE
1. Double Jeopardy – What the doctrine of double jeopardy entails

This Appeal is about the exact juridical import of the common law doctrine against double jeopardy, otherwise known as autre fois convict or autre fois acquit. As old as the doctrine, it is yet one which sits at the heart of all English common law systems, including Nigeria. The doctrine, which epitomizes the rule against double jeopardy, is revered as a principle vital to the protection of personal freedom. It underpins the legitimacy of the common law rule which ordains that a man should not be put in peril twice on a charge for the same or practically the same offence. See Nafiu Rabiu vs. Kano State (1980) LPELR-2936 (SC); Imade vs. IGP (1993) 1 NWLR (PT.271) 608; Barmo vs. The State (2000) 1 NWLR (PT. 641) 424; Nigeria Army vs. Brig. Aminu Kano (2010) LPELR-2013 (SC). When a criminal charge is brought against an accused by the State, he is taken to Court and arraigned. Usually, the allegations are read out as contained in the charge sheet and the accused will then be required to enter a plea. One of such pleas required or a combination of such pleas is the plea of autrefois convict or autrefois acquit. These pleas are provided for in Section 36(9) of the 1999 Constitution (as amended). The Section provides thus: “No person who shows that he has been tried by any Court of competent jurisdiction for a criminal offence and either convicted or acquitted shall again be tried for that offence or for a criminal offence having the same ingredients as that offence save upon the order of a Superior Court.” Per OHO, JCA. read in context

2. Double Jeopardy – The factors to be proved for a plea of double jeopardy to succeed
The requirements to be met before a person can claim double jeopardy

For a plea of autrefois acquit or autrefois convict to succeed, the following factors must be proved to the satisfaction of the Court:
1. That the accused had previously been tried on a criminal charge – the charge for which the accused was tried must be an act or omission constituted under a written law as an offence.
2. The former trial must have been conducted before a Court of competent jurisdiction.
3. The trial must have ended with an acquittal or a conviction. Where the trial ends with a discharge, the trial has not ended with an acquittal or conviction and so the accused cannot plead autrefois acquit or autrefois convict to any subsequent action filed against him.
4. The criminal charge for which the accused was tried should be the same as the new charge against him or alternatively the new charge should be one in respect of which the accused could have been convicted at the former trial, although not charged with it. In analyzing these pleas, there may be the need to make it clear that there must have been a trial of the accused, that is, hearing and determination of the charge against him on the merits otherwise a subsequent trial as contemplated by Section 36(9) of the Constitution of Nigeria, 1999 cannot be prevented. There should also have been the trial of the accused previously where he must have been convicted or acquitted. If there had been no trial previously, then the subsequent trial for the same offence is not barred. However, for the acquittal or the conviction to be an effective defense to the charge, it must have been handed down by a Court of competent jurisdiction as a preliminary examination before a Magistrate would not constitute such a trial. See Collins vs. Loisel (1923) 262 US 426. Where the Court, who held the first trial, was not competent to try the charge put forward in the second trial, Section 36(9) of the Constitution would have no application. It is for this reason that a trial by a Court having no jurisdiction in the case is void ab initio and the accused if acquitted is liable to be re-tried for the same offence. It is important to note in addition, that the accused person must have been either acquitted or been convicted as it is only then that a person can take the plea of the rule in order to bar the second trial for the same offence. A mere discharge of the accused does not amount to an acquittal. See The Chief of Air Staff & Ors vs. Wing Commander P. E. Iyen (2005) LPELR-3167 (SC). A person is said to be discharged when he is relieved from the legal proceeding by an order of Court, which does not amount to a judgment on the merit. So, a person who is in law only discharged may be charged again for the same offence if some other testimony is discovered against him; however a person who is acquitted of a charge can never be put on the trial for the same offence. A discharge leaves the matter at large for all purposes of judicial inquiry and there is nothing to prevent a Court discharging the accused from inquiring again into the case. It is also important to note that in a case where a judgment has been passed by a competent Court either acquitting or convicting the accused, so long as the judgment remains in force the person so acquitted or convicted cannot be tried again for the same offence; but where such an order or judgment has been set aside by an Appellate Court then such person can again be tried for the same offence because the previous trial is annulled thereby. Per OHO, JCA. read in context

3. DOUBLE JEOPARDY – Exceptions to the rule against the plea of double jeopardy

…The conviction or the acquittal in the previous case cannot be a bar in the trial of the same person for a different offence based on different facts but on the same evidence. In accordance with the last phrase of Section 36(9) of the Constitution of Nigeria, 1999 which reads thus: “…shall again be tried for that offence or for a criminal offence having the same ingredients as that offence save upon the order of a Superior Court.” (Underline, that of Court for emphasis.) This phrase, of course contemplates a situation where a person who can be so charged, may be tried once again even after the order of the conviction or acquittal in the previous case, however with the prior consent of the State Government acting through the office of the Attorney General or DPP as the case may be by filing for and obtaining the required leave or consent order under Section 185 (b) of the CPC. See the case of Bature vs. State (1993) 1 NWLR (PT. 300) 267 where the accused was charged with culpable homicide punishable with death and on appeal against conviction, it was contended that the charge upon which the accused was tried, was filed without obtaining leave of the Judge as required under Section 185 (b) of the CPC. The Supreme Court held that leave was obtained before the charge was preferred. This position takes care of the situation in one series of acts so connected together as to form the same course of transaction, and more offences than one are committed by the same person. He may, of course be charged with and tried at one trial for, every such offence. However, where a person has been convicted of any offence and a separate charge for another offence could have been made but was not made against him in the formal trial, he should not be liable to be tried again for the other offence as a matter of course because this might lend itself to abuse. It is for this reason that the later part of Section 36(9) of the 1999 Constitution envisages that such kind of second trial can be made only with the prior consent of the State Government with an application made to the superior Court for consent. The State Government also is supposed to give its consent after the due consideration of all the facts and circumstances of the case and with the main intendment of the law viz. promotion of the ends justice. Per OHO, JCA. read in context


LEAD JUDGMENT DELIVERED BY OHO, JCA.


This is an Appeal against the Judgment of the High Court of Kebbi State sitting at Birnin Kebbi in which the Appellant, SAMSON UWEM SUNDAY along with one other were arraigned for the offences of conspiracy; illegal possession of Firearms and Armed Robbery contrary to Sections 5(b), 3(1) and 1(2) (a) of the Robbery and Firearms (Special Provisions) Act Cap 398 LFN 1990 (as Amended) (See page 1-39 of the record) in charge No. KB/HC/RFT/25/2011. At the conclusion of trial the Appellant along with one other were convicted and sentenced for the offences charged.

The Respondent’s case before the trial Court was that sometime in the month of September 2009 the Appellant in company of two others now at large conspired among themselves to commit Armed Robbery in Birnin Kebbi while armed with a locally made pistol. The Appellant in the course of executing their agreed course of action were said to have robbed one ALHAJI FARUKU BAGUDU at the GRA in Birnin Kebbi.

The Respondent called a total of six (6) witnesses to proof its case and tendered a total of twelve (12) Exhibits marked as Exhibits A, B, C, D, D1, D2, D3, D4, D5, E, E1 and E2. The Appellant testified for himself and called no witnesses. At the conclusion of trial the learned trial Judge ordered the filing of written addresses by Counsel, which were subsequently exchanged and adopted.

On the 1-12-2015 the learned trial judge delivered its judgment convicting and sentencing the Appellant for all the offences as charged based on the evidence before the Court. Dissatisfied with this Judgment, the Appellant has Appealed to Court vide his Notice of Appeal filed on the 14-12-2015. (See page 111 – 114 of the record of appeal). There are three (3) Grounds of Appeal filed, which are hereby reproduced without their particulars as follows;

GROUNDS OF APPEAL;

1. The Judgment of the trial Court is unreasonable, unwarranted and cannot be supported having regards to the weight of evidence.

2. The trial Court erred in law when it used the evidence in charge No. KB/HC/RFT/26/2011 to prove the charge in KB/HC/RFT/25/2011 against the Appellant.

3. The trial judge erred in law when it assumed jurisdiction in charge No. KB/HC/RFT/26/2011 and convicted the Appellant contrary to the provisions of Section 36(9) of the Constitution of the Federal Republic of Nigeria.

ISSUES FOR DETERMINATION;
Out of the three (3) Grounds of Appeal, only one issue was distilled for the determination of this Court to wit;

Whether considering the Appellants conviction in case no. KB/HC/RFT/26/2011 (EXHIBIT D2) and the trial before the trial Court in case no: KB/HC/RFT/25/2011; the Appellant’s right under Section 36 (9) of the 1999 Constitution of the Federal Republic of Nigeria is not infringed upon. (Grounds 1, 2 and 3)

The sole issue was adopted by the Respondent and it is in respect of this issue that learned Counsel to the parties addressed Court in extenso citing a number of decided cases in support of their cases.

The Appellant’s Brief of argument dated the 1-12-2016, settled by HUSSAINI ZAKARIYAU ESQ., was filed on the 7-12-2016, while the Brief of argument of the Respondent dated 10-1-2017, settled by BAGUDU U. ABUBAKAR ESQ., of the Office of the Hon. Attorney General & Commissioner for Justice, Kebbi State was filed on the 13-1-2017. On the 17-2-2017 at the hearing of this Appeal, learned Counsel for the parties adopted their respective Briefs of arguments and urged the Court to decide in favour of their sides.

SUBMISSIONS OF COUNSEL

ON THE SOLE ISSUE FOR DETERMINATION; APPELLANT;

Whether considering the Appellants conviction in case no. KB/HC/RFT/26/2011(EXHIBIT D2) and the trial before the trial Court in case no. KB/HC/RFT/25/2011; the Appellants right under Section 36 (9) of the 1999 Constitution of the Federal Republic of Nigeria is not infringed upon (Grounds 1, 2 and 3).

Learned Counsel contended that the law relating to this issue is as provided for by Section 36(9) of the 1999 Constitution of Nigeria; which provides:

“No person who shows that he has been tried by any Court of competent jurisdiction or Tribunal for a criminal offence and either convicted or acquitted shall again be tried for that offence or for a criminal offence having the same ingredients as that offence save upon the order of a superior Court.”

It was submitted by Counsel that once the Appellant’s case falls within the ambit of the above provision of the 1999 Constitution; that the trial Court ought to discharge and acquit the Appellant. Counsel told Court that the Appellant herein had been tried and convicted in Charge No . KB/HC/RFT/26/2011 (at pages 56-81 of the records of appeal) for a criminal offence having the same ingredient as the offence in Charge No. KB/HC/RFT/25/2011 (at pages 1-39 of the records of Appeal) and hence cannot be forced once again to stand trial for a similar offence with the same ingredients again.

Learned Counsel contended that before the Appellant can be discharged on a plea of autre fois convict the plea of the Appellant must satisfy the following four (4) conditions:

(a) The first trial is on a criminal charge

(b) The first trial was by a competent Court

(c) The first trial ended with a conviction

(d) The offence for which the accused is charged must be the same with the first offence for which he was tried.

It was therefore submitted by Counsel that case number KB/HC/RFT/25/2011 met with all the conditions stated above. Counsel also contended that the Appellant in raising a defense of autre fois convict before the trial Court tendered an EXHIBIT D2 to prove his conviction for a similar offence. (See page 56-81 of the record of Appeal). Counsel said the first trial (Exhibit D2- KB/HC/RFT/26/2011) is a criminal trial like the instant case in Charge no. KB/HC/RFT/25/2011. He further said that the first trial (EXHIBIT D2) was by a competent Court and a Judgment delivered by Hon. Justice E. A. Karatu and which judgment was affirmed by this Court in case no. CNS/95C/2015 delivered on 14th April, 2016 and now on Appeal to the Supreme Court of Nigeria. In the first trial Counsel disclosed that it ended with a conviction of the Appellant. (See EXHIBIT D at page 80-81 of the records of Appeal). He further disclosed that the offence in EXHIBIT D2 is the same (Armed Robbery) as the offence in the present Appeal. (See page 1- 36 and 56 – 57 of the records of Appeal).

Learned Counsel took his time to list out the retinue of offences for the which, the Appellant had already stood trial and convicted as follows;

“i. Conspiracy to commit Armed robbery contrary to Section 5(b) of the Robbery and Firearms (Special Provisions) Act, Cap 398 LFN 1990 (as amended)

ii. Illegal Possession of Firearms contrary to Section 3(1) of the Robbery and Firearms (Special Provisions) Act, Cap 398 LFN 1990 (as amended)

iii. Armed Robbery contrary to Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap 398 LFN 1990 (as amended)

iv. Aiding and abetting contrary to Section 5(a) of the Robbery and Firearms (Special Provisions) Act, Cap 398 LFN 1990 (as amended) (we refer my lord to page 1-3 of Exhibit D) (See page 56-58 of the record of Appeal).”

Putting this side by side the case in Charge no KB/HC/RFT/25/2011 in which the Appellant is being freshly tried (now pending on Appeal before this Court, Counsel listed the following Offences;

“i. Conspiracy to commit Armed Robbery contrary to Section 5(b) of the Robbery and Firearms (Special Provisions) Act, Cap 398 LFN 1990 (as amended)

ii. Illegal possession of firearms contrary to Section 3(1) of the Robbery and Firearms (Special Provisions) Act, Cap 398 LFN 1990 (as amended)

iii. Armed Robbery contrary to Section 1 (2) (a) of the Robbery and Firearms (Special Provisions) Act, Cap 398 LFN 1990 (as amended)

iv. Aiding and abetting contrary to Section 5(a) of the Robbery and Firearms (Special Provisions) Act, Cap 398 LFN 1990 (as amended) (See page 4 & 5 of the record of Appeal)

It was submitted by Counsel that apart from the charge of culpable homicide in case no. KB/HC/RFT/26/2011 all other charges for which the Appellant have been convicted are the same charges before the trial Court in case no. KB/HC/RFT/25/2011 (now on appeal). He emphasized that it is the same offence with the same ingredient as the charges in KB/HC/RFT/26/2011 and urged the Court to so hold.

Learned Counsel contended that the prosecution cannot lawfully rely on EXHIBITS D; E; F; G; H; I and K in case no. KB/HC/RFT/25/2011 before the trial Court (See page 90 – 95 of the record of Appeal) because these Exhibits had already been tendered in evidence and used in convicting the Appellant by Hon. Justice E. A. KARATU (EXHIBIT D2) and which Judgment was appealed against as no. CA/S/95C/ 15 on 14th April, 2016. Counsel urged this Court to so hold and to resolve the sole issue for determination in favour of the Appellant.

On the part of the Respondent, in order to make assurance doubly sure, learned Counsel decided to reproduce Section 36(9) CFRN 1999 (as Amended) thus:

“36(9) No person who shows that he has been tried by any Court of competent jurisdiction or Tribunal for criminal offence and either convicted or acquitted shall again be tried for that offence or for a criminal offence having the same ingredients as that offence save upon the order of a Superior Court”

By so doing, learned Counsel had taken pains and had carefully drawn Court’s attention to a rider in Section 36(9) of the Constitution of Nigeria, 1999 (as Amended) which provides an exception to the Section thus:
“Save upon the order of the Superior Court.”

Against this position, Counsel argued that where a person could show that he had once been tried by a Court for an offence and either convicted or acquitted, he shall not again be tried for a criminal offence having the same ingredients as that offence save upon the order of a superior Court. What that means, Counsel further argued is that a person is exempt from a second trial from an offence which has the same ingredients except where a Superior Court orders otherwise.

Counsel also argued that it has been made clear from the facts of this Appeal that on the 30th August, 2011, the Appellant along with others still at large came to Birnin Kebbi on a motorcycle and tailed one Alhaji Shekare Adam (now deceased) at night from his shop to his house, where at the entrance they accosted him, robbed him of his money and shot him dead, leaving behind the Pistol used in the robbery operation and one leg of a sandals shoe. Counsel referred to the decision of this Court in Appeal No. CA/S/95C/2015 – Samson Uwem Sunday vs. The State where this Court held thus;

“From the evidence before the lower Court, neither the Appellant nor any other person was arrested at the scene of the crime in question. However, a pistol and a shoe were recovered from the scene of the crime i.e. Exhibits ‘A’ & ‘B’. But on 9/9/2011 when a similar armed robbery took place, the Appellant was arrested and based on identification parade the Appellant was identified by PW4…” UNREPORTED.

This Court was further told that on the 16th September, 2011, a three (3) man gang of armed bandits on the same motorcycle struck again where, they attacked one Alhaji Faruku Bagudu at his business premises at GRA, Birnin Kebbi and robbed him of some valuables and sums of money; that unfortunately for the armed bandits when luck ran against the gang, the Appellant herein was arrested on the spot with another Pistol similar to the one recovered at the house of late Alhaji Shekare Adam (now deceased) (Exhibits ‘B’, ‘C’ and ‘C1’). The Court was further informed that in the course of investigation the Appellant confessed that himself and the two others still at large were the persons who killed Alhaji Shekare Adam on the 30th August, 2011 (Exhibit ‘D’) and that this was corroborated by the evidence of Kelvin Maduka (4th Accused Person) (Exhibit ‘E’, ‘E1’ and ‘E2’).

It was in pursuance of the peculiar facts of this case Counsel said that the Appellant along with his cohorts were charged with the set of offences committed in the robbery operation of the 30th day of August, 2011 in charge No. KB/HC/RFT/26/2011 and similarly charged with another set of offences committed in the robbery operation of the 16th September, 2011 in charge No. KB/HC/RFT/25/2011.

According to learned Counsel the prosecution proceeded against the Appellant and his cohorts separately in the two sets of charges in cases No. KB/HC/RFT/25/2011 and KB/HC/RFT/26/2011 before two distinct judges of the Kebbi State High Court of Justice and that each of the trial ended with a conviction; where the first judgment was given in respect of case/charge No. KB/HC/RFT/26/2011 and the second judgment was in respect of case/charge No. KB/HC/RFT/25/2011, which is the subject matter of this Appeal.

Counsel submitted that the trial of case No. KB/HC/RFT/25/2011 was ordered by the Kebbi State High Court of Justice – A SUPERIOR COURT OF RECORD, as provided for by the provision of Section 6 of the Constitution of the Federal Republic of Nigeria 1999 (as amended). Counsel urged this Court to resolve this issue in favour of the Respondent.

RESOLUTION OF APPEAL

This Appeal is about the exact juridical import of the common law doctrine against double jeopardy, otherwise known as autre fois convict or autre fois acquit. As old as the doctrine, it is yet one which sits at the heart of all English common law systems, including Nigeria. The doctrine, which epitomizes the rule against double jeopardy, is revered as a principle vital to the protection of personal freedom. It underpins the legitimacy of the common law rule which ordains that a man should not be put in peril twice on a charge for the same or practically the same offence. See NAFIU RABIU vs. KANO STATE (1980) LPELR-2936 (SC); IMADE vs. IGP (1993) 1 NWLR (PT.271) 608; BARMO vs. THE STATE (2000) 1 NWLR (PT. 641) 424; NIGERIA ARMY vs. BRIG. AMINU KANO (2010) LPELR-2013 (SC).

When a criminal charge is brought against an accused by the State, he is taken to Court and arraigned. Usually, the allegations are read out as contained in the charge sheet and the accused will then be required to enter a plea. One of such pleas required or a combination of such pleas is the plea of autrefois convict or autrefois acquit. These pleas are provided for in Section 36(9) of the 1999 Constitution (as amended). The Section provides thus:

“No person who shows that he has been tried by any Court of competent jurisdiction for a criminal offence and either convicted or acquitted shall again be tried for that offence or for a criminal offence having the same ingredients as that offence save upon the order of a Superior Court.”

For a plea of autrefois acquit or autrefois convict to succeed, the following factors must be proved to the satisfaction of the Court:

1. That the accused had previously been tried on a criminal charge – the charge for which the accused was tried must be an act or omission constituted under a written law as an offence.

2. The former trial must have been conducted before a Court of competent jurisdiction.

3. The trial must have ended with an acquittal or a conviction. Where the trial ends with a discharge, the trial has not ended with an acquittal or conviction and so the accused cannot plead autrefois acquit or autrefois convict to any subsequent action filed against him.

4. The criminal charge for which the accused was tried should be the same as the new charge against him or alternatively the new charge should be one in respect of which the accused could have been convicted at the former trial, although not charged with it.

In analyzing these pleas, there may be the need to make it clear that there must have been a trial of the accused, that is, hearing and determination of the charge against him on the merits otherwise a subsequent trial as contemplated by Section 36(9) of the Constitution of Nigeria, 1999 cannot be prevented. There should also have been the trial of the accused previously where he must have been convicted or acquitted. If there had been no trial previously, then the subsequent trial for the same offence is not barred. However, for the acquittal or the conviction to be an effective defense to the charge, it must have been handed down by a Court of competent jurisdiction as a preliminary examination before a Magistrate would not constitute such a trial. See Collins vs. Loisel (1923) 262 US 426. Where the Court, who held the first trial, was not competent to try the charge put forward in the second trial, Section 36(9) of the Constitution would have no application. It is for this reason that a trial by a Court having no jurisdiction in the case is void ab initio and the accused if acquitted is liable to be re-tried for the same offence.

It is important to note in addition, that the accused person must have been either acquitted or been convicted as it is only then that a person can take the plea of the rule in order to bar the second trial for the same offence. A mere discharge of the accused does not amount to an acquittal. See The Chief Of Air Staff & Ors vs. Wing Commander P. E. Iyen (2005) LPELR-3167 (SC). A person is said to be discharged when he is relieved from the legal proceeding by an order of Court, which does not amount to a judgment on the merit. So, a person who is in law only discharged may be charged again for the same offence if some other testimony is discovered against him; however a person who is acquitted of a charge can never be put on the trial for the same offence. A discharge leaves the matter at large for all purposes of judicial inquiry and there is nothing to prevent a Court discharging the accused from inquiring again into the case. It is also important to note that in a case where a judgment has been passed by a competent Court either acquitting or convicting the accused, so long as the judgment remains in force the person so acquitted or convicted cannot be tried again for the same offence; but where such an order or judgment has been set aside by an Appellate Court then such person can again be tried for the same offence because the previous trial is annulled thereby.

Now in the case of this instant Appeal, this is where things seemed to have taken a turn for the worse. The conviction or the acquittal in the previous case cannot be a bar in the trial of the same person for a different offence based on different facts but on the same evidence.

In accordance with the last phrase of Section 36(9) of the Constitution of Nigeria, 1999 which reads thus:

“…shall again be tried for that offence or for a criminal offence having the same ingredients as that offence save upon the order of a Superior Court.” (Underline, that of Court for emphasis.)

This phrase, of course contemplates a situation where a person who can be so charged, may be tried once again even after the order of the conviction or acquittal in the previous case, however with the prior consent of the State Government acting through the office of the Attorney General or DPP as the case may be by filing for and obtaining the required leave or consent order under Section 185 (b) of the CPC. See the case of Bature vs. State (1993) 1 NWLR (PT. 300) 267 where the accused was charged with culpable homicide punishable with death and on appeal against conviction, it was contended that the charge upon which the accused was tried, was filed without obtaining leave of the Judge as required under Section 185 (b) of the CPC. The Supreme Court held that leave was obtained before the charge was preferred.

This position takes care of the situation in one series of acts so connected together as to form the same course of transaction, and more offences than one are committed by the same person. He may, of course be charged with and tried at one trial for, every such offence. However, where a person has been convicted of any offence and a separate charge for another offence could have been made but was not made against him in the formal trial, he should not be liable to be tried again for the other offence as a matter of course because this might lend itself to abuse. It is for this reason that the later part of Section 36(9) of the 1999 Constitution envisages that such kind of second trial can be made only with the prior consent of the State Government with an application made to the superior Court for consent. The State Government also is supposed to give its consent after the due consideration of all the facts and circumstances of the case and with the main intendment of the law viz. promotion of the ends justice.

The peculiar facts of this case shows that on the 30-8-2011, the Appellant along with others still at large in Birnin Kebbi while riding on a motorcycle tailed one Alhaji Shekare Adam (now deceased) at night from his shop to his house, where at the entrance they accosted him, robbed him of his money and shot him dead, leaving behind the Pistol used in the robbery operation and one leg of a sandal shoe. On another occasion, precisely on the 16-9-2011 another three (3) man gang of armed robbers riding a similar motorcycle struck again where, they attacked one Alhaji Faruku Bagudu at his business premises at GRA, Birnin Kebbi dispossessed him of some valuables and sums of money and the Appellant as one of the gang members was arrested on the spot with a Pistol similar to the one recovered at the house of late Alhaji Shekare Adam (Exhibits ‘B’, ‘C’ and ‘C1’).

Investigation into the matter eventually revealed that the Appellant and two others still at large were the persons who killed Alhaji Shekare Adam on the 30-8-2011 and that this was corroborated by not only the evidence of Kelvin Maduka (4th Accused Person) (Exhibit ‘E’, ‘E1’ and ‘E2’) but also by the confessional Statement made by the Appellant. This Court is of the view that the events of the 30-8-2011 in which one Alhaji Shekare Adam was robbed and killed are separate offences from the events of the 16-9-2011 when the motorcycle gang of robbers struck again and attacked one Alhaji Faruku Bagudu and dispossessed him of his valuables shortly before the Appellant was arrested. The settled position of the law is that Section 36(9) of the Constitution of Nigeria 1999 cannot be a bar in the trial of the same person for a different offence based on different facts but on the same evidence. By the Appellant’s own showing and which puts it beyond contestation that the second trial was for a different offence, there is included in one of the charges, a count of culpable homicide in case no. KB/HC/RFT/26/2011 while all other charges for which the Appellant has been convicted are the same before the trial Court in case no. KB/HC/RFT/25/2011 (now on appeal) save for the offence of culpable homicide.

In a situation where the argument as in the instant Appeal, is that there had been a series of acts, so connected together as to form the same transaction between the events of the 30-8-2011 and that of the 16-9-2011 and in which more than one offence had been committed by the same person and that the Appellant should not have been given separate trials as it is presently being done, then the latter Section or phrase in Section 36(9) of the Constitution of Nigeria, 1999 comes into play. The Appellant’s only grouse in this Appeal is his abhorrence of the second trial and has said nothing of whether the proper leave or consent had been obtained by the State and granted by a Superior Court of record under Section 185 (b) of the Criminal Procedure Code.

This appeal in the final analysis fails and it is accordingly dismissed.

MUKHTAR, JCA

I had the privilege of a preview of the lead judgment just delivered by my learned brother, Frederick O. Oho, JCA. I am in complete agreement with his reasoning and the conclusion that the appeal lacks merit. I adopt same as mine and accordingly dismiss the appeal for lacking in merit.

SHUAIBU, JCA

I read in draft the lead judgment delivered by my learned brother, Frederick O. Oho, JCA just now. I agree with the reasoning and conclusion reached. I also dismiss the appeal as devoid of merit and affirm the judgment of the Lower Court.