In The Court of Appeal of Nigeria
On Friday, the 7th day of April, 2017
Before Their Lordships
RAPHAEL CHIKWE AGBO Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
LOVEDAY CHUKWUDI AHUCHAOGU Appellant(s)
THE STATE Respondent(s)
TUNDE OYEBANJI AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the Judgment in respect of the appeal filed by appellant on 20/12/2010 against the judgment of Abia State High Court 2 Umuahia delivered on 22/11/2010.The accused was arraigned before the lower Court on a four count charge which read thus:
STATEMENT OF OFFENCE COUNT ONE
CONSPIRACY, contrary to Section 516 A(1) of the Criminal Code Cap 30 Vol.II Laws of Eastern Nigeria 1963 as amended, applicable in Abia State.
PARTICULARS OF OFFENCE
LOVEDAY CHUKWUDI AHUCHAOGU and others now at large on the 8th day of July 2008 at Umudike Ikwuano at the Umuahia Judicial Division conspired amongst yourselves to commit a felony to wit: kidnapping.
STATEMENT OF OFFENCE COUNT TWO
KIDNAPPING contrary to Section 364 of the Criminal Code Cap 30 LAWS OF Eastern Nigeria 1963 applicable in Abia State.
PARTICULARS OF OFFENCE
LOVEDAY CHUKWUDI AHUCHAOGU and others now at large on the date and place in the aforesaid Judicial Division, kidnapped one Francis Ajayi for the purposes of payment of ransom.
STATEMENT OF OFFENCE COUNT THREE
MURDER contrary to Section 319(1) of the Criminal Code Cap 30 Vol.II Laws of Eastern Nigeria applicable to Abia State.
PARTICULARS OF OFFENCE
LOVEDAY CHUKWUDI AHUCHAOGU and others now at large on the same date and place in the aforesaid Judicial Division murdered one Francis Ajayi.
STATEMENT OF OFFENCE COUNT FOUR
ROBBERY contrary to Section 1(1) of the Robbery and Firearm Act Special Provisions Act Cap 398 Laws of the Federation 1990, applicable to Abia State as amended by Decree No. 62 of 1999.
PARTICULARS OF OFFENCE
LOVEDAY CHUKWUDI AHUCHAOGU and others now at large on the same date and place in the aforesaid Judicial Division robbed Francis Ajayi of his dark blue Opel Omega car with registration number AJ 853 GWA, Laptop computer and other personal effects.
The accused pleaded not guilty to each of the counts.
The learned trial Judge later after hearing the prosecution witnesses on the one hand and the accused on the other hand, gave judgment inter alia thus:
It will surfice (sic) to say that the circumstantial evidence adduced in this case is so overwhelming. It is unequivocal positive and irresistibly points to the guilt of the Accused person in the 4 counts.
I therefore find the Accused person guilty as charged in the four counts and I convict him accordingly
Miffed by the decision of the lower Court the appellant filed Criminal Form 3 on 20/12/2010. He subsequently with leave of Court amended his grounds of appeal on 24/3/2015.
The amended grounds of appeal are as follows:
1. The Honourable Trial Judge erred in law when he held that the doctrine of last seen is applicable in this case and hence entitling the Court to base the appellant’s conviction for murder thereon.
PARTICULARS OF MISDIRECTION
1. The doctrine of last seen applies only when there is an eye-witness account by a person who
actually saw the deceased with an accused person just before the death of the deceased.
2. There is no evidence of the alleged death of the victim of the alleged kidnapping neither is there in evidence any eye-witness account of the Appellant being last seen with the victim of the kidnapping.
The Honourable trial Judge erred in law when he convicted the Appellant for murder based on the speculation that since the victim of the alleged kidnapping could not be found he must have died and it was the appellant that caused the death.
PARTICULARS OF ERROR
1. A charge for murder not being a light one requires the prosecution to prove beyond reasonable doubt that the deceased actually died that the accused person actually caused the said death and that his action of causing the death was unlawful.
2. There was no evidence before the trial Court or at all showing that the victim of the kidnapping was dead, that the appellant killed him and that the appellant did kill him unlawfully to ground a conviction for murder.
3. Evidence and not speculation is the oil which lubricates the engine of justice. Consequently it is a nullity for a Court to found its judicial findings upon speculation.
The Learned Trial Judge erred in law when he attached much weight and probative value to the evidence of voice identification to convict the Appellant.
PARTICULARS OF ERROR
1. It is the law that evidence of voice identification need not state the peculiar feature of the voice however, where it discloses a peculiar feature of the voice it must actually be a peculiar feature properly so called.
2. Voice identification like other form of identification, to be valid has to be done before trial and not while the Accused is in the dock.
3. Igbo accent cannot necessarily be said to be a peculiar feature of a voice heard in a place like Umuahia such can be a peculiar feature in a place like Dutse in Jigawa State or Zakibiam in Benue State if at all.
4. That the voice being recognized was heard through the telephone leaves a lot of room for doubt since even friends or acquaintances sometimes do not even recognize each other’s voice.
5. It is in evidence that the striking feature of the voice of the kidnapper who was calling the PW2 and PW4 is that he had an Igbo accent.
6. It is also in evidence that the person who was making the telephone calls by name Bassey Edet has an Igbo mother from Umuahia.
7. It is most probable that a person whose mother is Igbo must have an Igbo accent irrespective of the tribe of the father.
The Learned Trial Judge erred in law when he disregarded the circumstantial evidence favourable to the Appellant while copiously utilizing the circumstantial evidence not favourable to the Appellant in his judgment and convicted the Appellant thereby.
PARTICULARS OF ERROR
1. Where there is no direct evidence linking an accused to the offence charged a conviction can be based on circumstantial evidence.
2. Circumstantial evidence embraces the totality of the events taking place before during and after the commission of an offence including this action and reactions of the accused before during and after the commission of the alleged offence.
3. Where the offence charged is a capital offence the circumstantial evidence capable of being relied upon to convict the accused person must be examined by the Court.
4. The circumstantial evidence that will meet the requirement of the onus of proof in criminal cases is
the evidence that fixes the accused to the crime with sufficient cogency and which excludes the possibility that someone else had committed the crime.
5. Circumstantial evidence sufficient for a conviction must point to one possibility only that the offence was committed and it was no one else but the accused who committed it. Where such evidence is capable of two interpretations one against and the other in favour of the accused then, there is no proof beyond reasonable doubt.
The Learned Trial Judge misdirected himself in fact when he held that the prosecution has by direct evidence and evidence from which the Court can drawn (sic) inference from the facts proved that the Accused and others still at large conspired to commit the offence of conspiracy.
PARTICULARS OF MISDIRECTION
1. There is no evidence showing any cogent proof that the Appellant and any other persons(s) engaged in any conspiracy to kidnap the victim.
The Learned Trial Judge misdirected himself when he held that the accused did not try to refute the fact that PW2 and PW4 said that when he spoke after being caught at the banking hall, they recognized his voice as that of the kidnapper calling them on phone for the ransom money.
PARTICULARS OF MISDIRECTION
1. The Claim by PW2 and PW4 that the voice of the Appellant matched the voice of the person calling them for the ransom is at least an afterthought, an unreliable dock-identification exercise intended to overreach the Appellant and contrary to law as they never made this claim known until they were testifying in Court.
2. The Appellant maintained that prior to his arrest he never called nor spoke to PW2 and PW4 on phone.
3. The alleged recognition of the voice of the Appellant is actually a case of voice identification and was done through a most unreliable medium which detracts from the usefulness of the said recognition.
4. Voice identification is veritable means of tracking the identity of a suspect however; there is a procedure to follow in order to accord evidence of voice identification some credibility.
That the conviction and sentencing by the Trial Judge is unwarranted and cannot be supported having regard to the evidence.
The record of appeal in this appeal was transmitted on 9/10/12. Uche S. Awa learned counsel for the appellant filed appellants brief of argument on 25/2/2016.
Umeh Kalu Hon. Attorney General and Commissioner for Justice Abia State filed Respondents brief of argument on 2/6/16 but it was deemed filed on 7/12/16. Appellant’s Counsel later filed Reply brief on 14/12/16.
Learned Counsel for the appellant in his brief formulated four issues for determination to wit:
(a) Whether the alleged voice recognition or identification of the Appellant was sufficient in the circumstance of this case to warrant the conviction of Appellant (Grounds Three and Six)
(b) Whether the circumstantial evidence in this case is cogent, positive, conclusive, complete, unequivocal and convincingly accurate as to irresistibly point to no other direction than the guilt of the Appellant (Ground Four).
(c) Whether the doctrine of last seen is applicable in this case (Ground One).
(d) Whether the offences charged in this case have been proved by the prosecution beyond reasonable doubt as required by law (Grounds Two, Five and Seven).
The Hon. Attorney General and Commissioner for Justice for Abia State in his brief on behalf of the respondent formulated two issues for determination thus:
1. Whether having regard to the evidence presented before the trial Court by the Prosecution, the trial Court was not right in convicting and sentencing the Appellant for the offences of conspiracy to kidnap, kidnapping, murder and robbery.
2. Whether the Appellant by his evidence cast doubt in the case made out against him by the Prosecution.
I have deeply considered the issues formulated by Learned Counsel on both sides. I consider the issues formulated by Learned Counsel for the appellant apt and adequate enough for the just determination of this appeal. I hereby adopt the issues for the purpose of this judgment.
Whether the alleged voice recognition or identification of the appellant was sufficient in the circumstance of this case to warrant the conviction of Appellant.
On this issue, learned counsel for the appellant submitted that the alleged voice recognition or identification of the appellant was not sufficient to warrant his conviction. He argued that there was a difference between identification and recognition of a suspect in criminal proceedings. He relied on NDIDI V THE STATE (2007) ALL FWLR (PT 381) 1617 at 1639-1640. He posited that in the case of recognition the law required that a witness who recognized a suspect at the time he was committing the offence should at the earliest opportunity mention his name (the suspect) to the police. He cited ZAKARI ABUDU V THE STATE (1985) 1 NWLR (PT. 1) 55. He added that however if the suspect was not known to the witness before the crime and the witness alleged that he saw him the law required that an identification parade be carried out to test the veracity or accuracy of the assertion of the witness. Learned counsel referred to the evidence of PW4 and submitted that it was voice identification which must be:
(i) Spontaneous declaration of recognition or identification. He cited ANYANWU V STATE (1986) 5 NWLR (PT. 43) 612.
(ii) Where voice identification of the accused person was being relied upon voice identification parade must be done. He referred to BLACKSTONE’S CRIMINAL PRACTICE 2008.
(iii) He submitted that no weight could be attached to identification done in Court without initial identification parade before trial. He cited ANYANWU V STATE (1986) 5 NWLR (PT. 43) 612.
(iv) He submitted that where the witness alleged special feature of the suspect there was need for a database to know how many people shared the feature. He relied on BLACKSTONE CRIMINAL PRACTICE 2008.
Learned appellant’s counsel submitted that the prosecution did not conduct any accurate voice identification parade. He referred to what was done as dock identification. He submitted that the learned trial Judge misdirected himself by relying on the voice identification of the appellant. He urged the Court to set aside the decision of the trial judge because it was perverse.
Issues 2 and 4 of the appellant’s brief are essentially the same. I shall therefore take them together.
Whether the circumstantial evidence in this case is cogent positive conclusive complete, unequivocal and convincingly accurate as to irresistible point to no other direction than the guilt of the appellant.
On this issue, learned appellant counsel submitted that there was no direct evidence linking the appellant to the alleged offences.
(2) That the only direct evidence against the appellant was the evidence of voice identification and being caught withdrawing the ransom money.
(3) That there was a duty on the appellant to give some satisfactory explanation concerning the above.
(4) That the learned trial Judge disbelieved the explanation of the appellant due to misdirection.
(5) He argued that the explanation of the appellant only needed to be true but not sensible.
(6) That where the accused was alleged to have lied it must be on a material issue.
(7) That the prosecution failed to dislodge the defence of the appellant that it was his friend that asked him to withdraw the money and that this left a gap in the prosecution’s case.
(8) That there were several gaps in the prosecution’s case which created reasonable doubt on the guilt of the accused.
Whether the offences charged in this case have been proved by the prosecution beyond reasonable doubt as required by law.
Learned appellant’s counsel submitted that the basic ingredients of any of the offences charged had not been proved. He stated that the conviction of the appellant was based on speculation rather than evidence. He citedALABI V STATE (1993) 7 NWLR (PT. 307) 51 and ABOGODE V STATE (1996) 5 NWLR (PT. 448) 270.
Learned Counsel asserted that the offence of murder required that the prosecution must prove
(a) that the deceased died
(b) that the death of the deceased was caused by the accused Person.
(c) that the accused caused the death with intention to kill.
He argued that none of the offences was proved.
Issues 1, 3, and 4 of the appellants are encapsulated in issue 1 and 2 of the Respondent. I shall therefore state the arguments of learned counsel for the Respondent summarily on these issues.
Umeh Kalu, Respondent’s counsel referred to the evidence of the prosecution witnesses and submitted that their respective testimonies were not challenged, controverted or contradicted under cross-examination and that the learned trial Judge rightly believed and acted on them. He cited OLADEJO V STATE (1994) 6 NWLR (PT. 348) 101; OKASI V STATE (1989) 2 SCNJ 183 at 188 189. He submitted that the circumstantial evidence were cogent compelling unequivocal and pointed conclusively to the guilt of the appellant. He cited AMALA V STATE (2004) 12 NWLR (PT. 888) 520.
On the issue of conspiracy, learned counsel argued that conspiracy was hardly proved by direct evidence but by circumstantial evidence. He relied on OBI AKOR V THE STATE (2002) 6 S.C. (PT.1) 33 at 39 40. He submitted that this could be inferred from the surrounding circumstance of this case.
On the charge of robbery, learned counsel submitted that the Unchallenged evidence of PW2 and PW4 proved beyond reasonable doubt that the victim was robbed of his car, computer laptop, phone and other valuable property. He relied on UDOR V STATE (2014) 5 6 SC. (Pt. II) 177.
On murder, learned counsel for the Respondent posited that the prosecution presented facts before the Court to prove that the Victim was murdered by the appellant. He referred to the evidence of PW2 and PW4 and submitted that inspite of the absence of corpus delicti a person could still be convicted of murder. He relied on OCHEMAJE V STATE (2008) 15 NWLR (Pt. 1109) 57. He argued that there was compelling evidence that the victim of the alleged crime was dead.
Issues No 2 of Respondent:
Whether the appellant by his evidence cast doubt on the case made out against him by the prosecution.
Learned counsel for the Respondent referred to the evidence adduced and submitted that the appellant did not in his defence cast doubt on the case made out against him by the prosecution.
Learned counsel further submitted that the accused (appellant) contradicted himself both in his defence and in oral evidence and his statement to the police.
He stated that the persistent calls who made several phone calls to PW2 and PW4 stopped immediately the appellant was arrested.
Issue No 3 of the appellant is on the doctrine of last seen which the Respondent argued in his issue No1.
It read thus:
Whether the doctrine of last seen is applicable in this case.
The learned counsel for the appellant argued that the doctrine presupposed that:
(1) There was a deceased whose death was in issue
(2) That at least one person must have seen the accused person with deceased.
(3) That the time the witness saw the deceased and the accused person was the last time the deceased was seen alive by anyone and
(4) That there was no known cause of death of the deceased. He cited IGABELE V STATE (2006) 6 NWLR (Pt. 975) 100.
Uche Awa for the appellant states that no one actually saw the deceased last in the company of the accused. He submitted finally that the trial Court wrongly drew its conclusions of facts outside the available evidence. He cited THE STATE V COLLINS OJO AIBANGBEE (1988) 3 NWLR (Pt. 84) 548.
I have carefully considered the submissions of learned counsel on both sides. I have also deeply considered the contents of the record of appeal.
The findings of facts of the learned trial Judge who saw and heard the witness are summarized in his judgment as follows.
Has established strong circumstantial evidence which is unequivocal, positive and irresistably points to the guilt of the Accused person. I say this because the offence of kidnapping has been proved against the Accused from the foregoing. The Accused was caught collecting the ransom money and admitted collecting the first two installments. He also had the phone numbers of pw2 and pw4 in his phone when he was caught at the UBA banking hall. Pw2 and pw4 also recognized his voice as the voice of the kidnapper who was always calling them and demanding for the ransom money. Pw4 had testified that even though the Accused gave his name as Bassey Julius and Johnson he had the heavy accent of the Igbo race.
Again, Francis Ajayi’s car with his laptop effects disappeared with him when he was kidnapped. I am satisfied that the inference of Francis on the Accused person who should explain what he did with the car, laptop and personal effects of the kidnapped and murdered Francis Ajayi. The inference is that the Accused is guilty of robbing Francis Ajayi of the said dark blue opel car, Laptop and other effect after kidnapping him. I am therefore satisfied that he did commit the offence of robbery.
It will surffice to say that the circumstantial evidence adduced in the case is so overwhelming. It is
unequivocal, and irresistibly point to the guilt of the Accused of the person in the 4 counts.
As an appellate Judge what should be my attitude towards the findings of facts of the lower Court.
IGUH JSC in KAMALU & ORS V UMUNNA (ALIAS KAMALU) (1997) 5 NWLR (Pt. 505) answered thus:
The law is settled that where a question of fact has been tried by a Judge without a jury and misdirection of himself, an appellate Court which is disposed to come to a different conclusion on the printed evidence should do not so unless it is satisfied that any advantage enjoyed by the trial Judge by reason of his having seen and heard the witness was insufficient to explain or justify his conclusion.
See also TSOKWA MOTORS (NIG) LTD V UBA PLC (2008) 2 NWLR (Pt. 1071) 347 at 364-365. Are there pieces of evidence on record to support and sustain the above findings of facts?
The evidence of the appellant himself supported some of the findings. He admitted he was arrested at U.B.A Aba Road Umuahia on 18/10/2008 when he went to withdraw money with U.B.A cash fast. He admitted he went with SIM card number 08069302591. He admitted his photograph was taken with a webcam when he wanted to withdraw the money from the bank. He admitted that when Police came to arrest him his phone was taken from him.
The facts on record showed that the money withdrawn by the accused was the money extorted from pw2 when her husband was kidnapped. Pw4 gave evidence that the kidnapper used 08069302591. The number of the SIM Card recovered from the accused to demand for money from him when the victim was kidnapped. He gave evidence that the same voice of the same person called him on phone to make demand on each occasion although the voice gave different names. He recognized the voice as that of the accused. Pw2 also recognized the accused voice as that of the person who called her on phone.
The husband of the PW2, who was kidnapped had since not been found alive.
One major piece of evidence that the learned trial Judge used to debunk the defence of the accused was the voice identification.
In IBE V THE STATE (1992) NWLR (Pt.244) 642, the Supreme Court held that voice identification might be sufficient identification of a person. See also R V JOHN KEATING (1909) 2 C.A.R. 61. See also OKASHELU V STATE (2016) LPELR SC 838/2014.
The learned trial Judge who saw and heard the witness accepted and believed the voice identification of pw2 and pw4. His Lordship also listened to the evidence of the accused but disbelieved him. On page 108 of record the learned trial Judge held in respect of the accused thus:
I am afraid that I find that his defence is merely an after thought to pretend (sic) a defence for this case.
Besides the above the finding of the learned trial Judge that the accused victim was last seen with the accused is unassailable. His Lordship found that the accused and others kidnapped the victim. On the charge of murder, the learned trial Judge on page 109 of record held as follows.
with regard to the issue of the murder charge raised by the Defence Counsel as the third issue. I shall state at once that in a peculiar case as this, where the body of the deceased has not been recovered, the prosecutor cannot be expected to establish the cause of death. The prosecution has
established that it was the act of the Accused that caused the death of the deceased, for it has been established that the deceased was kidnapped by the accused who then used the deceased phone to phone and text pw2 and pw4 telling them that he had kidnapped the deceased and demanding for ransom. The Accused sent series of text massages to pw4’s phone reminding him that his friend will die if the ransom is not paid and that he would therefore be held responsible for his friend’s death. The exact words of this text message are as contained at page 5, 6 and 7 of pw4’s statement to the Police dated 28/7/09. It is therefore deemed that the said Francis Ajayi was last seen with him and he should account for his whereabout. Accused’s failure to do so only shows that Francis is dead and died at his hands.
It is in the light of the foregoing that I shall view the issue formulated for determination in this appeal.
Where the alleged voice recognition or identification of the appellant was sufficient in the circumstance of this case to warrant the conviction of the appellant?
Answer: – Yes!
The voice recognition was not only done by pw2 but also by pw4 who had several discussions with him on phone. Pw4 emphatically said despite the fact that the accused used different names he recognised that it was the same person who phoned him on each occasion. The voice recognition was buttressed by the fact that the accused came to withdraw the ransom money from the bank, did not deny being in possession of the SIM card used to call PW2 and PW4, tried to hide the SIM card and the form filled when he saw the police in the bank. Above all, his evidence at the lower Court was disbelieved by the learned trial Judge who saw and heard him when he gave evidence.
The pieces of evidence point directly to the guilt of the accused. Even though circumstantially. They are cogent and positive. According to ONU JSC in ADEPETU V THE STATE (1998 ) (NWLR (Pt. 565) 185.
A long line of cases beginning with R V SALA SATI (1938) 4 WACA 10 has laid down that to support a conviction based on circumstantial evidence it must not only be cogent complete and unequivocal but compelling and lead to the irresistible conclusion that the accused and no one else is the murderer: it must leave no ground for reasonable doubt see the Court’s decision on JOSEPH LORI & ANOR V THE STATE (1980) 8 11 SC: UWEESAI & ANOR V THE STATE (1976) 11 S.C. 39 and PAUL UDEDIBIA & ORS V. THE STATE (1976) 11 S.C. 133 at 138 139.
I am of the respectful view that the evidence of voice recognition of the accused by not only PW2 but PW4 as well directly and convincingly pointed to the guilt of the accused.
ISSUE 2 & 4
Whether the circumstantial evidence in this case is cogent positive conclusive complete unequivocal and convincingly accurate as irresistibly point to no other direction than the guilt of the appellant?
Answer: – Yes!
Whether the offences charged in this case have been proved by the prosecution beyond reasonable doubt as required by law?
Answer: – Yes!
The accused kidnapped or abducted the victim in this case and since then the victim had not been seen alive. The accused was last seen with the victim.
In JUA V STATE (2010) 4 NWLR (Pt. 1184) 217, Tobi JSC (of blessed memory) had this to say on a situation like this:
It is not every case of murder or every case of culpable homicide punishable with death that is proved by eye witness. And that in my humble view is the only essence of the jurisprudence of circumstantial evidence. In R V SALA (1938) 4 WACA 10, there was no direct evidence of anybody who saw the dead body of the person alleged to have been murdered. The West African Court of Appeal held that:
i. In such case the circumstantial evidence leading to the conclusion that the deceased died must be examined with great case.
ii. In this case, the trial Court was satisfied that the circumstantial evidence that the deceased died was so strong as to justify the finding even though no witness testified to actually seeing the body… I should say that like in SALA the circumstantial evidence in the case is very strong. An accused person can be convicted of the offence of culpable homicide punishable with death if there exist cogent and compelling circumstantial evidence to the fact that the accused person killed the victim. See OBASI V THE STATE (1965) NMLR 129; ONAH V THE STATE(1985) 3 NWLR (Pt. 12) 236; AKPAN V STATE (2000) 12 NWLR (Pt. 682) 66.
The evidence of pw4 was to the effect that the accused threatened to kill the victim should a report about the kidnap be made to the police. It is clear from the facts that since the arrest of the accused, pw2 and pw4 had not received any strange call in respect of the kidnapped victim. It is also crystal clear that when the accused called pw2 and pw4 the victim was in the custody of the accused and his accomplices.
The learned trial Judge invoked the doctrine of last seen to connect the accused with the charge of murder. I totally agree with His Lordship. Where an accused person was the last person to be seen in the company of the deceased and circumstantial evidence is overwhelming and leads to no other conclusion, there is no room for acquittal. See IGABELE V STATE (1996) 6 NWLR (Pt. 975) 100, OBASI V STATE (1965) NMLR 140, ADENIJI V STATE (2001) 7 LRCN 1970.
Whether the doctrine of last seen is applicable in this case?
Answer: – Yes!
In the light of what has earlier been discussed in this judgment
In the circumstance, this appeal is completely unmeritorious. I see no reason to disturb the conviction and sentence of the appellant by the lower Court. Appeal is hereby dismissed.
The judgment conviction and sentence of Abia State High Court sitting at Aba in Suit No: HU/3C/2009 THE STATE V LOVEDAY CHUKWUDI, AHUCHAOGU delivered on 22/11/2010 is hereby affirmed.
RAPHAEL CHIKWE AGBO, J.C.A.: I agree with the conclusions of my learned brother Awotoye JCA in the lead judgment and abide by all the consequential orders contained therein.
ITA GEORGE MBABA, J.C.A.: I had the privilege of reading the draft of the lead judgment of my learned brother, T. O. Awotoye, JCA, just delivered, and I agree with his reasoning and conclusions, that the appeal lacks merit, and should be dismissed.
I too dismiss it.
Y. A. Omenka for Uche A. Awa. For Appellant
E. Okezie (S.G & P.S Abia State) with him, D.C. Eke (S.C. Abia State). For Respondent