Adamu v. A-G Bendel State (1986)


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21 April 1986

GARBA ADAMU

V.

THE ATTORNEY-GENERAL OF BENDEL STATE

COURT OF APPEAL

(BENIN DIVISION)

CA/B/154/85

OMOIGBERAI EBOH, J.C.A (Presided)

DAHIRU MUSDAPHER, J.C.A.

OLATUNJI AJOSE-ADEOGUN, J.C.A. (Read the Lead Judgment)

WEDNESDAY, 29TH JANUARY, 1986

CONSTITUTIONAL LAW-Right to fair hearing – S.33(6)(c) of 1979 Constitution – Right of accused to defend himself by legal practitioner of his choice – Nature of – Failure of trial court to adjourn case when defence counsel was absent – Effect thereof.

COURTS – Record of proceedings – Duty of court.

CRIMINAL PROCEDURE – Undefended accused – Duty of Court.

CRIMINAL PROCEDURE – Right of accused to defend himself by legal practitioner of his choice – Failure of trial court to adjourn case when defence counsel was absent – Effect thereof.

CRIMINAL PROCEDURE – S.241 Criminal Procedure Law of Bendel State – “Person appearing for the prosecution” – Scope of.

CRIMINAL PROCEDURE – S.243 Criminal Procedure Law of Bendel State – Purpose of.

CRIMINAL PROCEDURE – Right to reply – Sections 242 and243 Criminal Procedure Law of Bendel State – Whether discretionary or compulsory.

CRIMINAL PROCEDURE – Calling of witnesses – Duty of prosecution.

CRIMINAL PROCEDURE – Statements made to the Police – Confirmation before Superior Police Officer – Duty of Superior Officer.

CRIMINAL PROCEDURE – Retracted confession – Duty of Court.

EVIDENCE – Confessions – Retracted Confession and involuntary confession – Distinction between both – Duty of Court in respect of both.

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EVIDENCE – Confessions – Confirmation before Superior Police Officer Duty of Superior Officer.

Issues:

1.
Was there any such procedural irregularity and violation of the provisions of section 33(5) and (6) of the 1979 constitution as could invalidate the conviction of the appellant?

2.
Did the prosecution prove the case against the appellant beyond reasonable doubt as required by section 137 of the Evidence Act, having regard to the totality of the evidence before the trial court?

3.
Was the alleged confessional statement of the appellant properly investigated and did the trial court sufficiently consider the claim of innocence consistently made by the appellant throughout the trial?

Facts:

The appellant was charged and tried for murder at the High Court of Bendel State, Igarra. There was no direct evidence of an eye-witness as to the killing of the deceased by the appellant, but the prosecution relied on a confessional statement allegedly made by the appellant to the Police which statement the appellant retracted at the trial. He denied having made the said statement at all or that the signature on it was his own.

At the trial, appellant denied ever killing the deceased, he said he knew nothing about his death. He called only one witness in his defence who was his father. The father testified that the appellant was suffering from mental disorder. He tendered a letter to that effect given to him by a Doctor but the Doctor was not called to give evidence.

The trial Judge considered the defence of insanity but held that it did not avail the appellant. The trial Judge then convicted the appellant on the basis of the confessional statement and sentenced him to death.

The appellant appealed to the Court of Appeal and raised several complaints against the proceedings at the trial court.

The first complaint was that the trial Judge violated section 33(6)(c) and (d) of the 1979 constitution in that he ordered the prosecution to open its case when the defence counsel was not present in court but had written to court that the case should be stood down till 11.30 for him. The record of proceedings however showed that the court waited till 12.00 noon before proceeding with the case when the counsel did not show up. There was however nothing in the record to show that the accused was allowed to cross-examine or actually cross-examined the witnesses called by the prosecution.

Another complaint of the appellant was that the trial Judge did not allow the prosecution to address the court before proceeding to give his judgment soon after the submission of the defence counsel.

Appellant also complained against the reliance placed by the trial court on the confessional statement alleged by the prosecution to have been made by appellant when appellant denied having made it. The statement was taken before a Superior Police Officer for confirmation but there was evidence that the standard form usually used for such confirmation was not used by the Superior Police Officer in this case.

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Held (Unanimously Allowing the Appeal):

1.
A trial Judge should always endeavour to state in the record of proceedings the steps taken by each party to the case and also whatever is said or done by the Court.

2.
The court has a duty to assist an undefended accused person and not add more to his burden or dilemma. Hence the practice, especially in a murder case, to ensure that an accused is granted the benefit of a lawyer to conduct his defence.

3.
Failure of the trial Judge in this case to adjourn the case on the day the defence counsel was absent in court is not by itself, without more enough to vitiate the entire proceedings. The Court of Appeal still has to examine the rest of the proceedings to see whether there had, on the whole, been a miscarriage of justice and a denial of appellant’s constitutional right to a fair trial.

4.
The appellant’s right to be presumed innocent until found guilty has not been contravened in this case.

5.
The right of an accused person to defend himself in person or by a legal practitioner of his own choice is given to him personally by Section 33(6)(c) of the Constitution. The accused himself can choose to terminate it at any stage of the proceedings. Indeed, it will amount to a denial of his right if he is not allowed to terminate the services of his lawyer at any stage of the proceedings and continue to defend himself in person, should he so decide.

6.
If, on the other hand, an accused had insisted on having the assistance of his lawyer and his request was refused by the trial court, such a refusal would be tantamount to a denial of his right: [The State v. Salihu Mohammed Gwonto (1983) 1 SCNLR 142 applied].

7.
The expression “the person appearing for the prosecution” in Section 241 of the Criminal Procedure Law of Bendel State, which relates to the right of reply, covers anyone, be he a Police Officer, a private lawyer or perhaps even any public officer, for example, from the Customs Department or the Local Government, who is conducting the prosecution.

8.
Section 243 of the Criminal Procedure Law is designed to put “Law Officers” in a special category and give them the right of reply in any event, irrespective of the provisions in Sections 241 and 242.

9.
The right to reply as contained in either Section 242 of the Criminal Procedure Law (for a person appearing for the Prosecution) or Section 243 (for a Law Officer) is, discretionary even though it is sometimes advantageous like most other legal rights, it is to be exercised whenever considered desirable by the donee.

10.
The prosecution is not bound to call a host of witnesses but very material ones must be called in the interest of justice.

11.
There is a distinction between a retracted statement and one allegedly made involuntarily under inducement, threat or promise. While the former is alleged not to have been made at all, the latter is alleged to have been made but under conditions which could make it inadmissible. The Court’s duty in the first one is to ascertain whether the statement was in fact made and it is in that respect that the genuineness or otherwise of the maker’s signature comes into consideration.

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In the second case, however, the Court has to conduct an inquiry, a trial within trial as it is usually called, to ascertain the conditions under which it was made. [R v. Igwe (1960) 5 F.S.C. 55; R v. Onabanjo (1936) 3 WACA 43 applied.]

12.
Where the signature on an alleged confessional statement is in dispute, the trial Judge ought to compare the disputed signature with specimen genuine signatures of the accused and come to a decision on the point. Such decision must also be clearly stated in his judgment by the trial Judge. In the instant case, failure of the trial Judge to indicate in his judgment whether or not he compared the disputed signature with the specimen genuine signatures of the appellant must be resolved in the appellant’s favour.

13.
As a trial Court is expected to attach some weight to a confessional^ statement of an accused person purported to have been confirmed before a Superior Police Officer, the procedure laid down for such confirmation must be strictly followed by the Superior Police Officer before the Court can act on the statement. In the instant case, since the standard form required to be used for the confirmation was not used by the Superior Police Officer who attested the appellant’s statement, the benefit of that error of omission must be accorded to the appellant: [Obue v. The State (1976) 2 S.C. 141 applied and followed.]

Nigerian Cases Referred to in the Judgment:

Obue v. State (1976) 2 SC 141.

R. v. Igwe (1960) 5 FSC 55.

R. v. Kanu (1952) 14 WACA 30.

R.v. Nwigboke (1959) 4 FSC 101.

R. v. Onabanjo (1936) 3 WACA 43.

State v. Gwonto (1983) 1 SCNLR 142.

Yesufu v. State (1976) 6 SC. 167.

Foreign Case Referred to in the Judgment:

R. v. Enghes (1913) C. AR. 233.

Nigerian Statutes Referred to in the Judgment:

Constitution of the Federation 1979, Sections 17(2)(e), 33(5)(6)(c)(d)(e).

Criminal Code Sections 241, 242, 243.

Criminal Code Cap. 48 Laws of Bendel State Section 28.

Criminal Procedure Sections 241 & 242 (2).

Evidence Act Section 137.

Book Referred to in the Judgment:

Brett & Mclean, 2nd Ed. by Madarikean and Aguda P.296.

Appeal:

This was an appeal against the decision of the High Court of Bendel State, Igarra which convicted the appellant of murder and sentenced him to

death The Court of Appeal allowed the appeal.

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History of the Case:

Court of Appeal:

Division of the Court of Appeal to which the appeal was brought: Court of Appeal, Benin City.

Names of Justices that sat in the Appeal: Omoigberai Eboh, J.C.A. (Presided), Dahiru Musdapher, J.C.A., Olatunji Ajose-Adeogun J.C.A. (Read the Lead Judgment).

Date of Decision: 29th January, 1986.

Appeal No.: CA/B/154/85.

High Court:

Name of the High Court: High Court of Igarra, Bendel State.

AJOSE-ADEOGUN, J.C.A. (Delivering the Lead Judgment): The appellant herein was charged and tried before the High Court at Igarra in Bendel State of Nigeria for the offence of murdering one Mallam Garba (male) on or about the 12th day of January, 1983 in the same Judicial Division. Although he pleaded not guilty, he was convicted of the said offence and sentenced to death by hanging. He has now appealed against the judgment of the trial court delivered on 14th September, 1984.

At the trial, the prosecution called five (5) witnesses in proof of its case. The appellant testified in his own defence and called another witness (his father) who gave evidence regarding appellant’s mental condition before the time of the alleged offence. From the case presented by the prosecution, it was apparent that there was no direct evidence of an eye-witness as to the killing of the deceased by the appellant. But reliance was placed on the admission statement of the appellant to the police which he retracted at the trial. He denied having made the said statement at all or that the signature on it was his own.

As to the charge itself, appellant stated in his evidence on oath that there was no time he killed Mallam Garba (the deceased). He (appellant) knew nothing about the matter. Nothing happened between him and the deceased. He knew not and had never been told why he was in prison custody. Of course, that line of defence – particularly in the light of available circumstantial evidence and appellant’s own admission statement, would naturally suggest some kind of mental imbalance in him.

So it was, indeed, that the only other witness for the defence (appellant’s father – D.W. 1) testified that appellant was once taken to Igarra General Hospital “because he was suffering from mental disorder”. The doctor at the said hospital advised that appellant be taken to Benin or Kaduna for treatment. A letter to that effect, given to appellant’s father (D.W. 1) was tendered in evidence as Exhibit “G”. But the doctor who wrote the said letter could no longer be traced and so he gave no evidence at the trial.

Apart from appellant’s confessional statement, Exhibit “G” the rest of the prosecution’s case was made up partly of medical evidence from Dr. Ogbonnia Eze of Igarra General Hospital. He performed the post-mortem examination on the body of the deceased, said to be an elderly man of about

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90 years old. The doctor’s findings as given in evidence on oath at the trial were as follows:-

“He (deceased) had three lacerations on the right side of the face. The laceration in front of the right of the ear measure(d) about seven inches and was very deep and affected the skull. The laceration at the jaw also went through the jaw bone and measured three inches. The third laceration which was at the back side of the ear also affected the skull bone and measured about 21/2 inches. There was no other injury found anywhere in the body.

In my opinion death was caused by the injuries enumerated and the injuries might have been caused by a machete or any sharp or partially sharp instrument and such injuries cannot be self-inflicted”

Also relied upon by the prosecution was the testimony of the investigating Police Officer, Sgt. Tsenongo Ihom (P.W. 3). He saw the body of the deceased soon after the killing and also “saw machete cuts on the head and blood rushing out from the body……” A blood-stained cutlass was seen near the body of the deceased. It was the same police Sgt. who took the corpse to the General Hospital for post-mortem examination. One Momoh Sumonu (P.W. 1) identified the corpse as being that of Mallam Garuba. After taking the statement of the appellant, Sgt. T. Ihom (P.W. 3) took him on the same day (i.e on 13th January 1983) to the alleged scene of the crime. It was there the appellant demonstrated to the said police officer how he (appellant) killed the deceased by machete cuts on the head.

Other important prosecution witnesses included a Senior Police Officer, Okon Jack Ete Etentuk (Superintendent of Police P.W.4). According to him, the appellant was brought to his office on 19th January 1983 by Sgt. Ihom with a confessional statement. Supt. Etentuk then asked the appellant whether he (appellant) made the said statement voluntarily, and he answered that he made the statement “voluntarily, not by force and not by intimidation”. Thereupon, the statement was read to the appellant word by word and having admitted that he made the Statement, he signed it in the presence of the senior officer who also endorsed it. But even after that piece of evidence, appellant denied making the said confessional statement which was admitted in evidence as Exhibit “B”.

Finally, there were the testimonies of the wife of the deceased (Lamatus Mallam Garuba – P.W. 2) and her son by another man (Momoh Sumonu – P.W.l). None of them witnessed the killing of the deceased. According to the latter (P.W. 1), he returned from his farm on 12th January, 1983 to meet the deceased who greeted him. As the witness was about to enter his mother’s room, he found it bolted and so he left for his own residence at Aburo Quarters. After a while, he sent his own son to check if his mother (Lamatu – P.W. 2) had returned. When the son told him about Mallam Garuba being dead, he (the witness) ran to the scene and saw the deceased in a pool of blood, already dead. He noticed machete cuts over the face of the deceased as well as on his neck. A report was made to the police station at Igarra where a police (Sgt. Ihom – P.W. 3) was assigned to follow him to the scene of the incident. The witness also saw a blood-stained machete very near the body of the deceased.

As for the wife of the deceased (Lamatu Mallam Garuba – P.W.2), she

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had been sent by her husband to the market to buy Bournvita. She returned home to meet him dead and noticed cutlass cuts on his head and face. According to Lamatu, the appellant used to visit the deceased and she thought the former was an Arabic student, the latter being an Arabic teacher. But there was a time when her husband reported to her that appellant stole his N100 and was consequently warned not to visit deceased’s house any more. Inspite of the warning, appellant was still visiting the deceased. The witness saw the appellant on the fateful day and again told him to stop visiting her husband. That was before she went to the market only to return to see her husband already dead.

In his judgment, the learned trial Judge held that there was no doubt that appellant killed the deceased. His Lordship was of the view that appellant’s confessional statement was voluntary and made in the circumstances confirmed by the superior Police Officer. Besides, the said statement “corroborate(d) very materially, the evidence of the Prosecution witnesses, particularly that of Doctor Eze.” The court then went further to consider the defence of insanity as implied in the defence, but in the light of the evidence available.

It was the view of the learned trial Judge that there was “nothing to show that at the time the accused committed the offence he was insane within the meaning of the Law. Reference was made to the distinction between actual insanity and delusions of the mind as defined in section 28 of the Criminal Code Cap. 48 of the Laws of Bendel State. In the end, the defence of insanity was held not to have been made out and therefore rejected. Hence appellant was convicted and sentenced to death.

With the leave of this court, six (6) grounds of appeal were eventually filed and argued by appellant’s counsel. They were as follows:-

“1.
The learned trial Judge misdirected himself in Law when he ab initio violated the principle of fair hearing entrenched in section 33 of the 1979 Constitution of the Federal Republic of Nigeria by ordering the case to proceed in the absence of Appellant’s counsel. (Vide lines 14 -15 at page 3 of the Records.)

2.
The learned trial Judge misdirected himself when he did not insist that the only eye witness to the murder should have made statement and given evidence before the court.

3.
The learned trial Judge erred when he concluded at page 19 line 10 that the disparity in the name on Exhibit ‘G’ and the charge goes to the root of the matter.

4.
The learned trial Judge erred in law when he defied procedure by not giving opportunity to prosecution in accordance with the Law to address the Court before he proceeded to deliver Judgment soon after the submission of the learned counsel for defence.

5.
The learned trial Judge misdirected himself in law and on the fact when he held that Exhibit ‘B’ was made by the accused person voluntarily (page) 18 line 9 of the Records) and thereby attached undue weight to the document.

6.
The learned trial Judge misdirected himself when on the face of mere suspicion and no compelling circumstances from the evidence before the Court concluded that the killing of the deceased was the act of Appellant.”

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Some fairly lengthy particulars were furnished under each of the above six grounds of appeal. It is, however, not considered desirable to set them down seriatim et verbatim. They can be conveniently summarized within the arguments of counsel in support of each ground. In the appellant’s brief, four (4) issues were put forward for determination in this appeal. Since these were not framed in general terms but respectively in a negative manner which already prejudged the very questions to be determined, I propose to adopt them with slight modifications as follows:-

1.
Was there any such procedural irregularity and violation of the provisions of sections 17(2) (e) and 33(5) & (6) of the Constitution of the Federal Republic of Nigeria 1979 (dealing with impartiality of the Court and right to fair hearing/trial) as could invalidate the conviction of the appellant?

2.
Did the prosecution prove the case against the appellant beyond reasonable doubt as required by section 137 of the Evidence Act, having regard to the totality of the evidence before the trial Court?

3.
Did the defence sufficiently establish insanity of the appellant, having regard to Exhibit ‘G’ and the evidence of D.W.1 and P.W.5?

4.
Was the alleged confessional statement of the appellant (Exhibit “B”) properly investigated and did the trial court sufficiently consider the claim of innocence consistently made by the appellant throughout the trial?

Before this court and in his brief, learned counsel for the appellant argued grounds 1 and 4 of the appeal together in respect of the first issue stated above. There were two aspects of counsel’s complaint and concern. The first’ related to the order of the trial court that hearing of the case should commence in the absence of appellant’s counsel.

That was on 7th March 1984. Before then, there had been two sittings of the court when the case had to be adjourned. At the first sitting on 19th December, 1983, the prosecutor was absent and upon the suggestion of the defence counsel (Mr. Ojo Esemokhai), the case was adjourned to 27th January 1984, for hearing. At the second sitting on the latter date, both counsel for the State and the defence were present. The record of proceedings, however, shows that “on Court’s motion, this case is adjourned to 7/3/84 for hearing.

When the court resumed sitting for the third time on the aforesaid adjourned date, what happened, as contained in the record of proceedings (page 3 thereof) was as follows:-

“The accused person is present. Mr. P. I. Momodu (State Counsel) for the State Mr. Ojo Esemokhai wrote to the Court as counsel for the accused asking for the case to be stood down till 11.30 a.m. It is now 12 noon and he is not here. The hearing of the case is to proceed since the counsel has failed to turn up even at 12 noon. The charge is read and explained to the accused person in English Language and he pleads not guilty to the charge.”

Immediately following the above episode, the prosecuting counsel commenced to call witnesses in support of the case against the appellant. At the end of the evidence-in-chief of the first prosecution witness (Momoh

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Sumonu – step-son of the deceased), his cross-examination by the accused/ appellant was recorded. There was nothing in the record of proceedings to show if, at the end of the evidence of P.W.l, the accused was given the option to either conduct the cross-examination by himself or wait for his counsel to do so on his behalf. Personally, I think in the situation described above, the fact that an accused was given such an option, if indeed he was, ought to have been recorded in the proceedings. This was all the more desirable in a murder trial which may attract capital punishment and considering especially that the accused was known to have a counsel representing him.

In my view, the learned trial Judge, with great respect to him, was unduly harsh on the accused/appellant. The two previous adjournments of the trial were at the instances of the prosecutor and the court itself. It was therefore hard and unreasonable, again with respect of His Lordship, to have refused to accommodate the accused either by waiting for longer than half-hour or even by adjourning the case till another day. While there has been much talk about delayed justice, the kind of haste exhibited in the present case does not, in my view, do any credit to the administration of justice in its true sense. It could only have evoked sympathy in favour of the accused/appellant who should not be blamed or penalised for the absence, for the first time in the proceedings, of his counsel. Indeed, counsel wrote to the court indicating that he would be late and for reasons not explained, he eventually could not turn up.

What actually inspired my above criticism and comments was the fact that on the aforesaid very first day of trial, the court went on, still in the absence of defence counsel, to take three other important prosecution witnesses – making a total of four. All of them had to be cross-examined by the accused himself. To me, such a hurried trial in a murder case and in the circumstances described above should be strongly deprecated. During the testimonies of two of the witnesses (police officers) taken in the absence of appellant’s counsel, vital Exhibits were tendered by the prosecution and admitted into evidence. One of them was appellant’s alleged confessional statement (Exhibit “B”) which he denied having made or signed. The others were the police form D22 (Exhibit ‘C’) for forensic examination of extracted blood and blood-stained matchet and the result of the test from the Forensic Laboratory at Oshodi (Exhibit “D”).

Curiously enough, with all the haste in taking four witnesses on the first day of trial, the court had to adjourn further hearing at the request of the prosecuting counsel, who was having a field day, to enable him call the doctor/witness. Yet, at the resumed hearing a week later – on 14th March, 1984 even though both counsel were present, the trial did not proceed but was adjourned at the instance of the court itself to the 18th April, 1984. That was an interval of over one month. One must therefore wonder why, at the end of the somewhat formal evidence of the first prosecution witness on the first day of trial, the court did not deem it fit to adjourn further hearing of more witnesses all in the interest and assistance of the accused/appellant whose counsel did not arrive at the chosen time. At least, such a step would have shown the defence counsel that the court wanted the trial to proceed expeditiously, but without being unduly hard on the appellant. As I know it, the court has a duty to assist undefended accused and not add more to their burden or dilemma. Hence it has long been the practice, especially in a murder

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case, to ensure that an accused is granted the benefit of a lawyer to conduct his defence.

I have taken the trouble to set out the above details and my comments thereon because of the strong feelings and concern expressed by appellant’s counsel in his arguments. Most of the points taken by him have already been ventilated along with the above review of the situation in question. The crux of counsel’s complaint was as eloquently put towards the end of arguments contained in his brief on the said issue, viz:

“While it is conceded that the learned Judge is not bound to adjourn any particular case at the instance of prosecution or defence, it is submitted that in the interest of justice and particularly for a death-carrying offence, an adjournment in the peculiar circumstance of this case would have gone the length to demonstrate that justice should not only be done but must be seen to have been done.”

While the above deserving sentiment is equally shared by me, based on the strong views already expressed herein, it is certainly not to be implied that the episode in question should by itself, without more, be enough to vitiate the entire proceedings, thus invalidating appellant’s conviction and sentence. One would still have to examine the rest of the proceedings to see whether there had, on the whole, been “a miscarriage of justice and a denial of appellant’s constitutional right to a fair trial” as alleged by his counsel.

If the matter had rested only on the situation described earlier herein, the answer to the above question would have been in the affirmative. Then, there would have been no hesitation in setting aside the whole proceedings and ordering either that appellant be released or re-tried. But what, however, happened subsequently at the trial could not support such a course of action.

When the trial court resumed sitting on 18th April, 1984 for continued hearing, counsel for the Appellant, Mr. Ojo Esemokhai, was present to defend him. At that stage, only the 5th and last prosecution witness (Dr. Ogbonnia Eze) remained to give evidence. He was called and did testify on that day about the post-mortem examination performed by him on the deceased’s body. His evidence-in-chief has already been reviewed earlier. Counsel for the appellant cross-examined him.

At the conclusion of the doctor’s evidence, an application was made by appellant’s counsel to recall two of the four witnesses (i.e. 3rd P.W. and 4th P.W.) who had testified in the absence of the said counsel. The application was granted and the 3rd P.W. (Investigating Police Sergeant T. Ihom) was thus cross-examined by Mr. Esemokhai, appellant’s counsel. During the said cross-examination, counsel sought and was allowed to see the statement made by the 2nd P.W. (wife of the deceased to the police.)

For reasons not disclosed in the record, counsel no longer cross- examined the 2nd P.W., although permission had been given to recall her. Instead, at the conclusion of the evidence of the re-called P.W. 3 (Sgt. Ihom), appellant’s counsel applied “for a short adjournment to conduct the defence.” The implication of that application must be that he had abandoned any attempt to cross-examine the re-called P.W. 2 or indeed to recall any of the other witnesses who testified in his absence. Consequently, the case was adjourned for further hearing until it eventually came before the trial court on 26th June, 1984. On that day, appellant’s counsel opened the case for the

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defence.

As already indicated, the appellant’s testimony was followed by that of his father (D.W. 1). Both of them were led in their evidence by the defence counsel and were duly cross-examined by the prosecutor. Their testimonies have already been referred to in this judgment. Upon the conclusion of the case for the defence, the case adjourned to 17th July, 1984, at the instance of the appellant’s counsel for his closing address. On the said date, he did address the court fully on the case for the defence, urging “the court to hold that the accused was insane at the time the offence was committed”.

Now, the question that arises from all the above, considering particularly the subsequent events during the second half of the proceedings, must be whether, as put in the first issue for determination, the appellant had a fair hearing/trial as guaranteed by our Constitution of 1979. In this regard, appellant’s counsel referred to section 33, sub-section (5) and (6) of the said Constitution. The former reads thus:

“33.
鈥︹€︹€︹€︹€︹€︹€︹€︹€︹€︹€︹€︹€︹€︹€︹€︹€�..

         鈥︹€︹€︹€︹€︹€︹€︹€︹€︹€︹€︹€︹€︹€︹€�.(1)-(4)

(5)
Every person who is charged with a criminal offence shall be presumed to be innocent until he is proved guilty:

provided that nothing in this section shall invalidate any law by reason only that the law imposes upon any such person the burden of proving particular facts.

Pausing here for a moment, I must say that it has been rather difficult to discern from appellant’s brief or from his Counsel’s oral arguments before this court how the above provision was breached or violated by anyone during the trial of the appellant. In the only ground of appeal (No. 1) where violation of the constitutional right of fair hearing was alleged, the “Particulars of Error” furnished thereunder contained nothing to support the allegation that appellant was at any stage of the trial presumed guilty before his conviction. After a careful examination of the record of proceedings, I have been unable to find anything remotely connected with a violation of the principle of presuming the innocence until the conclusion of the proceedings. Consequently, I am of the view that the said allegation was misconceived and without any foundation.

The portion of sub-section (6) of section 33 of the same Constitution which is relevant to the particulars under ground 1 of the appeal is to be found in paragraphs (c) and (d) thereof. They read as follows:-

“33.
鈥︹€︹€︹€︹€︹€︹€︹€︹€︹€︹€︹€︹€︹€︹€︹€︹€︹€︹€︹€︹€�..

       鈥︹€︹€︹€︹€︹€︹€︹€︹€︹€︹€︹€︹€︹€︹€︹€︹€︹€︹€� (1)-(5)

      (6)     Every person who is charged with a criminal offence shall be entitled -

            (a) and (b) not applicable

(c)
to defend himself in person or by legal practitioners of his own choice;

(d) to examine in person or by his legal practitioners the witnesses called by the prosecution before any court and to obtain the attendance and carry out the examination of witness to testify on his behalf before the Court on the same conditions as those applying to the witnesses called by the prosecution;” (Italics mine)

It seems quite clear from the above provision that an accused person is

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entitled as of right to defend himself, if he so wishes, without the aid of a lawyer. Equally, it may be said that he is also entitled as of right to engage a lawyer of his own choice. If he adopts the latter course, he is undoubtedly entitled to have the services or assistance of his counsel at all stages of the proceedings – from the beginning to the end. But the right being that of the accused himself, given to him personally by the Constitution, it is my view that he himself can choose to terminate it at any stage of the proceedings. Indeed, it will amount to a denial of his right if he is not allowed to terminate the services of his lawyer at any stage of the proceedings and continue to defend himself in person, should he so decide.

The point being made above is that the aforesaid Constitutional right being personal to an accused person, he obviously must be allowed to decide for himself as to its exercise one way or the other. In the instant case, when appellant’s counsel was absent at the commencement of the trial, the court directed hearing to proceed. At that stage, appellant had the right to signify his choice for counsel’s assistance. But he chose to go on with the trial and indeed undertook for himself the cross-examination of the witnesses. It was within his right so to do. If, on the other hand, he had insisted on having the assistance of his lawyer and his request was refused by the trial court, a different situation would have arisen. Such a refusal would be tantamount to a denial of his right.

A somewhat similar situation arose in the case of The State vs. Salihu Mohammed Gwonto and 4 Ors. (1983) 1 S.C.N.L.R. 142, In that case, the five (5) appellants were charged, tried and convicted of criminal offences under the Penal Code of the North and sentenced to various terms of imprisonments with hard labour. In the Court of Appeal, their counsel took the point about lack of translation of the proceedings to four of them in Hausa, since only one of them spoke and understood English Language. It was held by the then Federal Court of Appeal that there was a breach of the Fundamental Right of the Appellants under Section 33(6) (e) of the aforesaid Constitution as well as a violation of sections 241 and 242(2) of the Criminal Procedure Code thereby occasioning a failure of justice under section 382 of the C. P. C. The State appealed to the Supreme Court against that decision.

At the Supreme Court, consideration was given to the provision for fundamental right to a fair hearing under section 33(6)(e) which provides thus:-

“(6) Every person who is charged with a Criminal offence shall be entitled ………………………………………………………..

(e)
to have without payment the assistance of an interpreter if he cannot understand the language used at the trial of the offence. (Italics mine)

In the lead judgment delivered by Nnamani, J.S.C., and agreed to by the other six eminent Justices of the court, the point was made that in the above-quoted provision, emphasis ought to be placed on the words ‘if he cannot understand the language used at the trial of the offence’. His Lordship then went on to state as hereunder, before allowing the appeal:

“The right to an interpreter only arises in such circumstances. This is why it is the duty of the accused person, or counsel acting on his behalf, to bring to the notice of the court the fact that he does not understand the language in which the trial is being conducted. Unless

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he does, it will he assumed that he has no cause for complaint and the question of violation of is right to an interpreter will not arise.”

I believe I have said enough earlier herein to show my adoption in this appeal of the above-quoted view of the very learned Justice of the Supreme Court to the complaint of the appellant’s counsel concerning section 33(6)(c)& (d) of the Constitution. What is more, apart from lack of request from appellant to be allowed the assistance of his lawyer, the rest of the proceedings, as already indicated, was conducted with the help of appellant’s counsel. Incidentally, the same lawyer raised no complaint, when he later joined in the proceedings, about the conduct of the case in his absence. Instead, he recalled the witnesses who had testified and been cross-examined by the appellant. Thus he had the second opportunity to cross-examine them again. At the end, he fully addressed the court on appellant’s case, still without any complaint on the issue in question.

From all the above circumstances, I am fully satisfied that there had been no undue violation of the appellant’s Constitutional right to a fair hearing and that no failure of justice to him had in fact been occasioned in the whole trial regarding the issue now under consideration. In the result ground 1 of the appeal which alleged such violation must fail.

The second aspect of the complaint by appellant’s counsel also relevant to the first issue, was based on ground 4 of the appeal. It was said that the learned trial Judge proceeded to judgment after submission of defence counsel without giving the prosecuting counsel opportunity to address the court. In the arguments advanced on that issue, appellant’s counsel referred to section 243 of the Criminal Law which he described as mandatory. According to him, failure to comply with the procedure laid down by Law in the said issue amounted to a miscarriage of justice. It was also contended that excluding the Law Officer from addressing the court rendered the judgment “a nullity and a complete negation of what justice stands for.” These are very strong words.

A look at the aforesaid section 243 and the preceding section 241 and 242, will easily and clearly show that the above contentions of learned counsel for the appellant were entirely misconceived. It is apparent that section 241 is irrelevant to Counsel’s contention. That section relates to certain cases in which the person appearing for the prosecution (a police prosecutor or a private counsel) has no right of reply after the address of defence counsel. Next, section 242 deals with cases in which prosecution may reply. It provides as follows:-

“242. If any witness, other than the accused himself or witnesses solely as to the character of the accused, is called or any document is put in as evidence for the defence, the person appearing for the accused shall be entitled after evidence on behalf of the accused has been adduced to address the court a second time on the whole case and the person appearing for the prosecution shall have a right of reply”.

As can be seen from the above provision, reference is made, as in section 241, to “the person appearing for the prosecution. That expression, in

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my view, covers anyone, be he a police officer, a private lawyer or perhaps even any public officer, e.g. from the Customs Department or the Local Government, who is conducting the prosecution. Hence section 243 follows up to say “(The) provisions of section 241 and 242 shall not affect the right of reply by a law officer.” Both under the Criminal Code (section 1) and the Criminal Procedure Law (Section 2), the term “Law Officer” is specifically defined to mean the Attorney-General, the Solicitor-General, the Director of Public Prosecutions and such other qualified officers et cetera. So, section 243 is designed to put “law officers” in a special category and give them the right of reply in any event, irrespective of the provisions in section 241 and 242.

Whatever the position may be, the important thing, to observe is that the right to reply as contained in either section 242 (for a person appearing for the prosecution) or section 243 (for a law officer) is, though sometimes advantageous, discretionary. Like most other legal rights, it is to be exercised whenever considered desirable by the donee. There is no provision or authority which makes its exercise compulsory and appellant’s counsel did not refer this court to any.

In the particular case in hand, the prosecuting counsel (a law officer) had a right of reply under section 243 of the C.P.C. because the appellant called another witness (his father D.W. 1) other than himself who not only gave evidence but tendered a document (Exhibit “G”). But on the last date of hearing, before judgment was adjourned and then delivered two months later, the said law officer was absent and therefore could not exercise his right of reply. In my view, the officer must be presumed to have waived his right to do so – particularly as he was present on 26th June 1984 when the case was fixed purposely for address on 17th July 1984.

Having the right of reply or the last say is an advantage. Thus, if anyone had a genuine complaint in respect of that right, it should have been the prosecuting counsel and not the appellant.

For all the above reasons, it seems quite clear to me that the said ground 4 of the appeal completely lacks any substance and ought therefore to fail. I agree with the reasoning and submissions of learned counsel for the respondent on the said issue to the effect that failure of the State Counsel to address the trial court could not have prejudiced the case for the appellant.

Although appellant’s counsel continued his arguments on the rest of grounds 2, 3, 5 and 6 by taking them together, it is pertinent to observe that grounds 2 and 6 relate to the second of the issues for determination in this appeal as earlier settled above. Ground 3 relates to the third issue while ground relates to the fourth and last issue. I therefore propose to deal with the remaining grounds (2,3,5 and 6) in that same manner as they are related to the remaining three issues for determination.

Under grounds 2 and 6, the first point taken by appellant’s counsel was that the son (age not disclosed) of the first prosecution witness (P.W. 1 – Momoh Sumonu) who alleged that he (the son) witnessed the killing of the deceased should have made statement and given evidence to the court regarding what he actually saw. To begin with, the piece of evidence being referred to by counsel amounted to a hearsay. It should not therefore have

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been admitted into evidence. Plainly enough, from the judgment, the learned trial judge did not at all use the evidence of P.W. 1 or even that of P.W. 2 (wife of the deceased and mother of the son in question).

The only testimonies relied upon for the prosecution’s case were those of the 3rd, 4th and 5th prosecution witnesses (police officers and the doctor) coupled with the confessional statement of the appellant himself. After setting out the statement and particulars of offence as contained in the charge sheet, the judgment started thus:-

“There is no eye witness to the killing of the deceased by the accused person. The only evidence linking the accused with the murder is his confessional statement to the Police. The said confessional statement is Exhibit “B” in this case.”

Going by the manner in which the learned trial Judge proceeded with the examination of the prosecution’s case, it is quite obvious that the alleged hearsay evidence was totally ignored. Indeed, the evidence of the witness in which the son’s allegation occured was not referred to at all throughout the judgment. As the appellant’s counsel himself conceded “prosecution is not bound to call a host (of) witnesses but very material ones must be called in the interest of justice” (See the particulars under ground 2 of the appeal).

In this case, the prosecution’s case was based on appellant’s confessional statement and the material testimonies in support thereof. The prosecution’s discretion cannot be questioned in this respect. The learned trial Judge was right in basing his judgment only on the admissible and material evidence before the court. His Lordship’s action in that respect, but not necessarily the judgment itself, is, in my view faultless. Accordingly, I hold that there is no substance in the said ground 2 of the appeal.

Closely aligned to the above was ground 6 of the appeal which complained that appellant was convicted on mere suspicion. But as already indicated above, the learned trial judge based his conviction of the appellant solely on the confessional statement and the testimonies of the police officers (P.W. 3 and P.W.4) as well as that of the doctor (P.W.5) who performed the post-mortem examination. The particulars furnished under this ground again related to prosecution’s failure to call the same son of the deceased’s wife, already referred to and dealt with in ground 2 and a photographer who took the picture of the deceased’s body. Since the same consideration applies to both grounds, I see no substance in ground 6 either. It therefore must also fail.

The complaint under ground 3 which comes under the third issue for determination in this appeal, related to the defence of insanity put forward on behalf of the appellant. Counsel based his contentions on Exhibit “G”, a letter written by a Medical Officer (Dr. A. I. Bayo) who saw the appellant at General Hospital, Igarra, sometimes in January, 1982 – a year before the alleged offence of murder. It reads as follows:-

26th January, 1982.

“The Consultant Psychiatrist,

Psychiatrist Hospital,

Kaduna.

Sir,

Ref: Abubakar Garba Adamu (19 years)

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The above-named patient (has) been a kind of drug addict for the last 5 years. He takes alcohol of all brand and smokes “leaves”.

He left school and had been having auditory hallucination, insomnia and said people are disturbing him at home thus he sleeps in the bush and deserted buildings. He also steals small things like cigarrettes, yam tubers etc.

He could be a case of drug induced psychosis. I am therefore referring him to (you) for further evaluation and management.

Thanks.

Yours faithfully,

(SGD)

(Dr. A. I. Bayo),

Medical Officer,

Igarra.”

Incidentally the above-quoted letter was tendered by appellant’s father (D.W. 1) who testified for the defence. According to him, he took the appellant to the doctor at Igarra General Hospital “because he (appellant) was suffering from mental disorder”. It was there the witness was advised to take appellant to the hospital at Kaduna, with the said letter (Exhibit “G”). But no action was taken on the advice because witness alleged that he (appellant’s father) was sick and was receiving treatment at Ekpoma.

Obviously, the purpose of tendering the letter, Exhibit “G”, was to prove that appellant had “mental disorder”, as his father put it, or insanity. His counsel complained that the trial Judge was wrong in holding the view that the defence ought to clear the disparity between the name on Exhibit “G” and the name on the charge. The former bears the name “Abubaker Adamu Garba” while the name on the latter is Adamu Garba. According to the learned trial Judge, the defence failed to clear the disparity. That approach by the trial court was clearly too narrow and unjustifiable, particularly in the circumstances of the serious case in hand.

Undoubtedly, the learned trial judge failed to consider the detailed and unchallenged evidence of the appellant’s father which sufficiently linked the letter, Exhibit “G” to his son. It is common knowledge that people do have more than one first name. Besides, as rightly pointed out by the defence, neither the appellant nor his father wrote either of the two documents which were prepared under different circumstances. In my view, based on the undisputed evidence before the trial court, the letter, Exhibit “G” related to the appellant. The observations of the learned trial judge on the said letter were totally unwarranted.

Having said as much, I am however of the view that on the whole, there was no miscarriage of justice on the issue of appellant’s defence of insanity. The particular letter in question, Exhibit “G”, did not go as far as to declare the appellant insane. Infact, its purpose was to send him for “a further evaluation” by an expert in mental disorder. Put at its highest, the letter could be said to have described a situation of a person whose mind became affected by delusions. But such a situation is different from that of insanity which can exonerate a person accused of criminal responsibility. As it happened, the learned trial Judge drew that distinction in his judgment.

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  Curiously enough, the very alleged motive for appellant's act, as described by himself in the confessional statement (Exhibit "B") savours of delusions rather than insanity. The beginning of the said statement reads thus:-

“I Adamu Garba voluntarily elect to state that I know one Mallam Garba now deceased, was native doctor and myself also being a native doctor, then the deceased used to sieze(d) my power whenever I want to do something then I was not happy with the deceased鈥︹€︹€�”

Upon a careful examination of the evidence available to the trial court, I agree with the conclusion of the learned trial Judge, assuming the letter, Exhibit “G”, had been properly admitted into evidence, that there was nothing in the case presented by the defence to show that at the time the appellant committed the alleged offence, he was insane within the meaning of the Law. Indeed, if the letter (Exhibit “G”) had been improperly admitted, as contended in another ground of appeal, then there would be no proof at all of insanity. That being so, ground 3 which relates to Exhibit “G”, meant to prove appellant’s insanity, must fail.

Finally, there was ground 5 of the appeal which complained about the confessional statement, Exhibit “B”, having been held to be voluntary. Two aspects of the said statement (Exhibit “B” were urged by appellant’s counsel to be unsatisfactory. First, it was contended that the facts allegedly supplied by the appellant in the Exhibit were not investigated by the investigating police officer (P.W. 3). Secondly, it was pointed out that the senior police officer who attested the statement as having been confirmed by the appellant did not use the appropriate form which should have been attached to Exhibit “B”, the confessional statement. According to appellant’s counsel, the first aspect caused the learned trial Judge to misdirect himself by placing too much reliance or weight on Exhibit “B”. Regarding the second aspect, it was urged that if the proper procedure had been followed, “the resultant poser as to whether appellant indeed made Exhibit “B” or not would have been a non-issue.”

In the case of David Obue vs. The State (1976) 2 S.C. 141, the judgment of the Western State Court of Appeal, confirming the conviction and sentence of death passed on the appellant therein by the High Court of the Western State, was set aside by the Supreme Court essentially on the aforesaid two aspects of a confessional statement. As there is a fairly close similarity between the said case (Obue’s – supra) – cited by learned counsel for the appellant and the one under consideration in this appeal, it is highly desirable to examine very closely the contentions of learned counsel regarding the said two aspects of appellant’s confessional statement (Exhibit “B”). This is more so in view of the strong remarks and directives of the Supreme Court in the former which are binding on this court.

To begin with, the appellant herein retracted his statement, claiming that he did not make or sign any. Similar situation arose in Obue’s case (supra). To resolve the issue of the genuiness of the signature, the learned trial Judge in this case caused the appellant to be given a plain sheet of paper to write his signatures in many places. Appellant did so and the paper bearing

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his signatures was admitted in evidence as Exhibit “A”. A different solution was adopted in Obue’s case (supra) by the trial Judge therein who merely compared all the signatures purported to be that of the appellant on “Exhibit H” itself (the alleged confessional statement). On the said solution adopted in Obue’s case, the Supreme Court had this to say:-

“The Judge considered the testimony of the appellant that he did not sign the statement as untrue basing his conclusion on his own comparison of the signatures purported to be that of the appellant on Exhibit H. He (the Judge) did not realise that there was no genuine signature of the appellant before him with which he could compare the signatures which the appellant challenged on Exhibit H. There is no doubt that if he had had a genuine signature of the appellant to compare with, he might have come to some other conclusion. Having failed to do so, his conclusion that the appellant signed Exhibit H could not be correct.”

(Italics mine)

As it happened in the case under consideration in this appeal, the learned trial Judge tried to avoid the trap into which his learned brother fell in the Obue’s case (supra). This was done in the present case by asking the appellant herein to put his genuine signature in many places on a paper, Exhibit A. Obviously, the sole purpose for that exercise could only have been to compare and contrast the genuine signatures on Exhibit “A” with the one on Exhibit “B” denied by the appellant. But most regrettably, the learned trial Judge completely lost the value of the said exercise by completely forgetting or erroneously omitting to use the result of it. This is apparent from the only reference made in the entire judgment to the issue of the genuiness or otherwise of appellant’s signature. It reads thus:-

“It is my view that Exhibit “G” was made by the accused person voluntarily, that it was not made under any threat of danger or harm or promise of any kind and, in short, it was made in the circumstances confirmed by the third (3rd) Prosecution witness who is a superior Police Oficer. The confessional statement corroborates very materially the evidence of the Prosecution witnesses, particularly that of Doctor Eze. Ordinarily, confessional statement alone is enough to convict the accused person as charged – See Brett & Mclean, 2nd Edition by Madarikan and Aguda p. 296 and the cases of R. vs. Walter Enghes, 1913 C. AR 233 at 234 and R. v. Kanu (1952) 14 WACA p. 30.”

With the greatest respect to the learned trial Judge, by the above remarks he was completely off the rails. In the first place, there is a clear distinction between a retracted statement and one made involuntarily under inducement, threat, promise etc. The latter is alleged not to have been node at all whereas in the former, it is alleged to have been made but under conditions which could make it inadmissible. The court’s duty in the first one is to ascertain whether the statement was in fact made and it is in that respect that the genuiness or otherwise of the maker’s signature comes into consideration; See the case of R. v. lgwe (1960) 5 F.S.C. 55. In the second case, however,

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the court conducts an inquiry (trial within a trial) to ascertain the conditions under which it was made: See the case of R. v. Onabanjo (1936) 3 WACA 43.

Now, it can be observed from the above-quoted views of the learned trial Judge that he did not, after all, use Exhibit “A” containing the specimen genuine signatures of the appellant in comparison with the disputed signature on Exhibit “H”. If he did, he ought to have made his decision on the result of his comparison clearly known in his judgment. Having failed to do so, it is difficult for this court to speculate on the result of such comparison, if any. Indeed, as the judgment itself would suggest, the Judge might not have made use of Exhibit “A” at all to test the disputed signature on Exhibit “B”, thereby losing the only opportunity or avenue for ascertaining the genuineness of appellant’s signature. In my view, the benefit of the learned trial Judge’s error of omission must go to the appellant in the case under consideration. Consequently, I am afraid I cannot possibly conclude, in the circumstances described above, that the prosecution had proved beyond reasonable doubt the genuineness of appellant’s signature on Exhibit “G”, the alleged confessional statement. This is more so, considering the persistent denial of the appellant that he never made or signed any statement. This error alone should be enough to set appellant’s conviction aside as it was based purely on the alleged confessional statement.

Also worthy of attention was the learned trial Judge’s view regarding the confirmation of appellant’s statement (Exhibit “B”) by a Superior Police Officer. Reference has already been made to this aspect earlier in this judgment. All that the said officer, a D.S.P., did was merely to endorse in his own hand-writing at the bottom of appellant’s statement, that it “was read to the accused word by word and he confirmed that the confessional statement was made by him voluntarily without any force.

Since the situation described above was also the same as in Obue’s case (supra) and the complaint thereon was also similar, I only need to repeat the Supreme Court observation thereon (at pages 152/153). It reads as follows:-

“It is not disputed that there is a standard form which a Superior Police Officer has to fill in when an accused person is brought before him with a confessional statement for the purpose of confirmation or otherwise. Certain questions are inserted in the form, which are to be put to an accused person, and his answers recorded, but this was not done in the case of Exhibit H. The DSP only wrote out in red ink on the side of the remarks of the 3rd Prosecution Witness that the accused had confirmed the statement as correct. This is not satisfactory. The questions in the form and the answers when obtained might have lent weight to such confirmation. We wish to observe that where the court is expected to attach some weight to a confessional statement purported to have been confirmed before a Superior Police Officer the laid down procedure for such confirmation should be followed. The reason for this is obvious because the questions set out in the standard form were deliberately intended to test whether the accused made the confession alleged or not to the Superior Police Officer. It is also essential that the superior Police Officer should be satisfied that the accused person understands the

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language used by him. It is because of the weight that will be attached to a confessional statement confirmed by an accused person before an independent and responsible person, namely, a Superior Police Officer that care should be taken that the laid down procedure is strictly followed. The weight to be attached to the evidence on confirmation of such confessional statement will depend to some extent on whether there had been compliance with the provision of the standard form. It is peculiarly necessary where the confessional statement is the main proof of the prosecution’s case.”

All that now need be said on the above issue is that it is apparent, after examining the document containing appellant’s alleged confessional statement, Exhibit G, that the standard form referred to by appellant’s counsel under ground 5 of the appeal was not used by the superior police officer who attested it. The benefit of that error of omission must again be accorded to the appellant – especially considering the above – quoted strong observation and directive of the Supreme Court on the subject.

Learned Senior State Counsel (Mr. M.J. Edokpayi) for the respondent referred this court to the case of Jimoh Yesufu v. The State (1976) 6 S.C. 167. It was submitted that in the said case, decided only four months after Obue’s case, the Supreme Court accepted and commended the kind of endorsement used on the statement of the present appellant. Counsel also observed that the Supreme Court did not refer to Obue’s case in the latter case of Jimoh Yesufu (supra). The simple answer to that observation is that although not referred to, the above-quoted observation and directives in Obue’s case (supra) were neither criticised nor overruled in the latter case. In the case under consideration in this appeal, those remarks in Obue’s case are, in my view, eminently more relevant to the circumstances therein: See the case of R. v. Nwigboke (1959) F.S.C. 101.

Before concluding, I must refer to the remaining aspect of counsel’s complaint on the use of Exhibit “G”. This was about failure to investigate the facts contained therein. My own view is that the said short statement contains little or nothing to investigate. Appellant’s own assertion that he was a native doctor whose progress was retarded by the deceased could, being his own imagination, hardly be investigated. Similar consideration applies to his visit to his grandmother after the alleged incident. It was irrelevant.

The most important point from all the above is that since appellant’s conviction depended solely on his confessional statement, the errors already highlighted above in respect of same should be enough to warrant the success of his appeal. Accordingly, the appeal is allowed. The conviction and sentence of the appellant by the High Court of Bendel State at Igarra are hereby quashed. The appellant is consequently hereby ordered to be discharged.

EBOH, J.C.A. (Presiding): I agree entirely and I too hereby allow the appeal.

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MUSDAPHER, J.C.A.: I have had the opportunity of reading in draft the judgment just delivered by my learned brother Ajose-Adeogun, J.C.A. In that judgment His Lordship has meticulously dealt with all the issues in this appeal. I am in total agreement with the reasoning and the conclusion reached therein. I would also allow the appeal, I hereby set aside the conviction and sentence and order that the appellant be discharged.

Appeal Allowed.

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