MUHAMMADU v. PEOPLE OF GOMBE STATE

- Whether conceding to a no-case submission which was overruled at trial prevents the prosecution from defending an appeal against the substantive judgment _"The Appellant has implored the Court to discountenance the Respondent's brief on the ground that the Respondent has been inconsistent in its position in this matter and cannot change the position it took at the lower Court where it submitted that it did not prove its case. Without a doubt, the law is settled beyond peradventure that parties must be consistent in their case, both at the Court of trial and on appeal, as a party is not allowed to approbate and reprobate over the same issue. See AJIDE vs. KELANI (1985) LPELR (302) 1 at 35, SUBERU vs. THE STATE (2010) LPELR (3120) 1 at 30, CHUKWUNYERE vs. THE STATE (2017) LPELR (43725) 1 at 30-32 and CHRISTOPHER vs. THE STATE (2022) LPELR (57565) 1 at 10-11. However, it is pertinent to state that this trite principle of law only establishes a principium, and not a rule: FAWEHINMI vs. NBA (NO. 2) (1989) 2 NWLR (PT 105) 558 at 650 or (1989) LPELR (1259) 1 at 139, ADEGOKE MOTORS vs. ADESANYA (1989) 5 SC 92 at 100 and ADEMOK CONTINENTAL LTD vs. OGUN STATE GOVT (2022) LPELR (54618) 1 at 34-37. In law, context is everything; so, whether the principle is applicable will depend on the diacritical facts of the case, since facts are the fountainhead of the law and the principles decided in a case are not pulled out of context and given a general application but are only used to govern cases with similar facts. That said, it has not been controverted that when the Appellant made a no-case submission, the Respondent conceded the submission. The lower Court however overruled the submission, and evidence was then adduced in defence of the charge. This appeal is not against the decision of the lower Court overruling the no-case submission. If it were, then the Respondent cannot be heard to contend the contrary. However, the undisputed facts are that evidence was led in defence and the lower Court in its judgment convicted the Appellant as charged. This appeal is against the said judgment. Though it may not necessarily be so, but the likelihood that there may have been changed circumstances, as it relates to proof between when the no-case submission was made and after the defence evidence in defence of the Charge, cannot be ruled out. In such a situation, the Respondent cannot be hamstrung by its position when the no-case submission was made. Since this appeal is not against the no-case submission, it is not correct that the Respondent has not been consistent in the case it is making. Accordingly, the Respondent has done no more than stick to the traditional role of a respondent to defend the judgment appealed against. See DANGANA vs. USMAN (2012) LPELR (25012) 1 at 21, SCC (NIG) LTD vs. JOSEPH (2025) LPELR (81444) 1 at 30 and EDEDE vs. A-G, FEDERATION (2025) LPELR (82109) 1 at 118. I therefore decline to discountenance the Respondent's brief."_ Per UGOCHUKWU ANTHONY OGAKWU, JCA (Pp 13 - 16 Paras F - A)