FEDERAL REPUBLIC OF NIGERIA v. NASIRU YAHAYA
(2014)LCN/7336(CA)
RATIO
COURT: DUTY OF COURTS; THE DUTY OF THE TRIAL COURT TO EVALUATE EVIDENCE AND ASCRIBE PROBATIVE VALUE TO IT
Karibi-Whyte JSC in AJAO V ALAO [1986] NWLR (Pt 45) 802 had this to say an evaluation of facts and assessment of evidence by trial court. “It is well settled in our law that matters relating to evaluation of facts, assessment of evidence and consideration of veracity in the testimony of witnesses are essentially and intrinsically questions of fact to be determined primarily by the Court of trial – see KISIEDU & ORS V DOMPREH & ORS (1935) 2 WACA 253 FATOYINBO V WILLIAMS (1956) I FSC 37.” per. TUNDE O. AWOTOYE, J.C.A.
COURT: INTERFERENCE; WHETHER AN APPELLATE COURT WILL NOT INTERFERE WITH THE FINDINGS OF THE TRIAL COURT UNLESS IT IS PERVERSE
In SHELL BP PETROLEUM DEV. CO. NIGERIA LTD V COLE & ORS (1978) 3 SC [REPRINT] 128 Bello JSC (as he then was) held thus: “This court has in numerous cases reiterated the rule that the Court of Appeal will not ordinarily interfere with the findings of facts by the trial Judge but where there is ample evidence and the trial Judge failed to evaluate it and make correct findings on the issue the Court of Appeal is in much a good position as the trial court to deal with the fact and to make proper findings. However, in a matter where so much turns on the credibility or reliability of witnesses, the proper course to be taken by the Court of Appeal is to make an order for a retrial. See CHIEF JAMES OKPIRI & ORS V CHIEF IGONI JONAH & ORS (1961) 1 ALL NLR 102, OLALERE OBADARA & ORS V THE PRESIDENT, IBADAN WEST DISTRICT COURT (1964) 1 ALL NLR and OLADIPO MAJA V LEARNDRO STOCCO (1968) NMLR 172.” per. TUNDE O. AWOTOYE, J.C.A.
In The Court of Appeal of Nigeria
On Monday, the 30th day of June, 2014
TUNDE O. AWOTOYE, J.C.A. (Delivering the Leading Judgment): This is the Judgment in respect of Complainant/Appellant in suit No. ZMS/GS/20C/2011.
The accused (now respondent) was arraigned before the High Court of Justice Gusau on a charge which reads as follows:
“That you Nasiru Yahaya between 27/4/2011 and 31/8/2011 at Gusauu within the jurisdiction of the High Court of Zamfara State dishonestly converted to your own use the sum of N64,800,000.00 (sixty four million eight hundred thousand naira only) belonging to one Alhaji Musa Baba and that you thereby committed an offence contrary to section 308 and punishable under section 309 of the penal code”.
After the plea of the accused was taken the prosecution called evidence in support of its case. The accused later gave evidence in defence.
The learned trial judge, after considering the evidence adduced and hearing the parties entered judgment and discharged and acquitted the accused inter alia thus:
“On the whole, the evidence of the prosecution raises doubt in the mind of the court as this 2 vital ingredient of the offence of criminal misappropriation was not established in my considered view. It is only where all essential ingredients to an offence charged have been satisfactorily proved by the prosecution the same is prove beyond reasonable doubt. Sec SHEHU VS STATE (2010) 45cm page 188 ratio No 15 after a careful consideration the entire evidence adduced before this court. I am satisfied that the prosecution has failed to establish a case of criminal misappropriation under section 308 and punishable under section 309 of penal code against the accused person, accordingly a verdict of discharge and acquitted is hereby entered in favour of the accused person.”
Dissatisfied with the judgment, the prosecutor filed an appeal to this court vide Notice of Appeal containing 4 grounds of appeal (shorn of the particulars) are:
Ground 1
The learned trial judge erred in law when he held that section 19(5) of the Economic and Financial Crimes Commission (establishment, etc.) Act, 2004 [“the EFCC Act”] did not apply in the instant case because respondent was charged and tried under section 308 of the Panel Code.
Ground 2
The learned trial Judge erred in law when in arriving at his decision of discharging and acquitting the respondent he made use of a document that was not before the court.
Ground 3
The learned trial Judge erred in law when he held that the prosecution withheld evidence and that the court was therefore entitled to presume under section 149(d) of the Evidence Act that had the evidence been produced it would have been unfavourable to the prosecution.
Ground 4
The learned trial Judge erred in law when discharging and acquitting the respondent of the one-court charge when the court has in the course of its judgment made some findings to the contrary.
After transmission of the record of appeal to this court the appellant (the prosecutor) filed appellant’s brief on 8/4/2014. This appeal was heard on appellant’s brief alone because the respondent despite having been served with all necessary processes failed to file Respondent’s brief of argument.
In its brief which was settled by M. S. Abubakar, Deputy Chief Legal Officer of EFCC two issues were formulated for determination as follows;
“(a) whether the prosecution had not proved the charge against the Respondent beyond reasonable doubt
(b) whether the trial High Court was right in discharging and acquitting the Respondent of the charge against him on the basis of a purported written agreement (which the trial court alleged that the appellant has withheld) for refund, the expiry date of which was not due when the complainant reported the case for investigation?”
On Issue No.1 learned counsel for the appellant submitted that the evidence adduced by the prosecution was sufficient to ground a conviction for the offence of criminal breech of trust and not just criminal misappropriation. He relied on TIRAH V COP (1973) NNLR 143, BAKARE & ORS V COP (1968) 1 ALL NLR 364, ONOGWU V STATE (1995) 6 NWLR (Pt 401) 276 and a lost of other cases. He further relied on AJIBOYE V STATE [1994] 8 NWLR (PT 364) 587. He referred to the ingredients of the offence charged and submitted that the misappropriation of the sum of 64.4 million naira by the Respondent was done dishonestly.
He urged the court to resolve issue No.1 in favour of the appellant.
On Issue No.2 (or [b]) which he formulated from grounds 2 and 3 of grounds of appeal. Learned counsel adopted his earlier arguments He urged he court to resolve this issue against the respondent by holding that the trial court was not right in discharging and acquitting the Respondent of the charge against him based on the purported written agreement that was not before the court and which was not proved to be relevant. Learned appellant’s counsel finally urged the court to use the authorities in ONOGWU V THE STATE [1995] 6 NWLR (PT 401) 276 and the provision of the Court of Appeal Act to: –
i. Allow the appeal
ii. Set aside the acquittal and discharge of the respondent
iii. Order the conviction of the accused person on the one court charge of criminal misappropriation or convict him for any other most appropriate offence(s) particularly criminal breach of trust.
iv. Order the sentence of the accused person as appropriate.
I have carefully considered the submissions of learned counsel for the appellant as well as the contents of the record of appeal.
I have deeply considered the issues as formulated by the learned counsel for the appellant.
I am of the respectful view that Issue No.1 (or ‘a’) as formulated by the appellant’s counsel is adequate and wide enough for the essence of the determination of this appeal.
For the purpose of clarity I shall restate Issue No.1 (or (a) as formulated in the appellant’s brief thus;
“Whether the prosecution had not proved the charge against the Respondent beyond reasonable doubt.”
I shall determine this appeal in the light of this sole issue.
The facts of this case now an appeal are not complex. PW1 contacted the accused person (Respondent) to supply 36 trucks of fertilizer and the sum of N64,000,000.00 was paid into the Respondent’s account in Zenith Bank, domiciled in Gusau. It is clear from the evidence that the accused transferred N25 million out of the said to one Hafsat Ibrahim which said money had been repaid to him. The accused never offered explanation as to how the balance of 39million naira was depleted. He did not call anyone to whom he gave the money for the purchase of fertilizer even though he claimed to have distributed the money to his business partners.
As it is the money was not recovered and no fertilizer was supplied.
For clarity’s sake I shall quote the evidence of the accused under examination in chief is extenso;
“DW1, Male Muslim, speaks Hausa affirmed and state as follows:- My name is Nasiru Yahya, I live at NO.2 Samaru Gusau, I am a businessman in fertilizer and also a civil servant I know Mustapha Haske Turaki PW1, I know him about 5 years ago, I know him because of the business of fertilizer I use to have with him every year. We did this business with him by sending money to me to buy fertilizer from peasant farmers and supply it to him. I can remember we did this type of transaction 4 times with PW1. In 2011 between PW1 and my self, he called me when I was in U.A.E and informed me of transaction which he intend we take and it involves a huge amount I asked him to exercise some patience, I will return soon, 6 days later he called me at that time I was in Saudi Arabia and promised him in 3 days time I will come back home. After my return, PW1 came the following day to my house in Gusau he asked me to supply 36 trucks of fertilizer at the rate of N1,800,000 our per truck and he offered to bring the money cash I told him I will not take the money, cash so I gave him my account No.2 or 3 days he sent the money into my account I went and confirmed the payment by PW1. I have other business partners Sokoto I transferred the sum of N25 Million into the account of one Hafsat Ibrahim so as to give the money to m business partners, for the purchase of fertilizers from people from Kebbi state. The Bank delayed the transfer of the money from Zenith Bank to Bank PHB. After the payment, I called the partner, but he told me he had travelled to Saudi Arabia. So I called Hafsat to return the money. After she return the money I gave it to other business partner in Birnin Kebbi to purchase this fertilizer for me. There was no specific time of delivery with PW1 because it is being purchase bit by bit. After I distributed the money, PW1 called me and informed me, he is not longer interested in the business, he did not gave me any reason. At the time he was given me the money, he did not told me money belongs to Musa Baba. After stopping the business PW1 asked to return the money. I asked him for a grace of 1 month to return the money so as to retrieved the money I gave to my business partners. It was when I asked PW1 period of 1 month that PW1 asked me to acknowledge receipt of the money addressed to Musa Baba to know that the money is in my possession not PW1. I wrote the agreement and send it to PW1 through one Kabiru, 4 days later EFCC operatives started coming to my house before ever the time elapse. Therefrom, I informed my counsel and informed him. I was completely demonetized, even my security guards were arrested and beaten and are presently ill prison custody, my house was deserted by the incessant coming of the EFCC operatives. I did not misappropriate any money, because I distribute the money to my business partners and I gave them time within which to return the in business goods.”
It is important to note that the accused called no witness. The learned trial Judge concluded that it was a failed business or commercial transaction which could not be said to be criminal misappropriation. His Lordship stated on page 122 – 123 of the record thus;
“It is the evidence of PW1 that he contacted the accused person for contract for the supply of 36 trucks of fertilizer and the sum of N64,000,000.00 was paid in his Zenith Bank Account and a time of delivery was specified, later PW2 inform PW2 that it is no longer interested in the supply of the fertilizer which was communicated to the account and an agreement was entered into for the refund of the contract sum on the 30th of June 2011. This piece of evidence was also corroborated by the statement of the accused person as well as the evidence of PW4. It is also the evidence of DW1 as well as PW4 that 3 days into the agreement before the time fall due a criminal complained was lodge against the accused person at the EFCC office thereby causing the investigation and arraignment before the court. The violent presumption is that, there was contract between PW1 and the accused person for the supply of 36 trucks of fertilizer. I agree with learned defence counsel that the plans and super structure on which the case of prosecution is built is pure commercial transaction. Having regard to the evidence of PW1 and the statement of the accused admitted in evidence as well as the testimony of PW4 and giving the nature of the transaction, the accused person can not be said to have converted the money to his own use. Accordingly a failed business or commercial transaction can not be said to be criminal misappropriation, more so as in this case the contract was rescinded by PW1 and PW2 mid way and the parties voluntarily entered an agreement within which the contract sum will be refunded.”
Is the above right in the face of the evidence before the court?
It needs be noted that the PW1 gave evidence that the accused promised to complete the job within 2 weeks. PW1, Mustapha Haske gave evidence further.
“At the expiration of 2 weeks there was no supply, he pleaded for an extension of time of one week I told him, I have to notify the owner Alh. Musa Baba”.
This evidence contradicts that of the accused. The accused in his evidence stated thus;
“There was no specific time of delivery with PW1 because it is being purchase bit by bit”
I have gone through the entire proceedings. The learned trial Judge who had the opportunity to see and hear the witnesses failed to resolve this conflict on a fundamental point in the evidence of both parties. The agreement document which was not tendered but which the learned trial Judge relied heavily upon was not, in my respectful view the genesis of the problem. It is from the origin of the problem that the criminal intention or otherwise of the accused/respondent could be determined.
Karibi-Whyte JSC in AJAO V ALAO [1986] NWLR (Pt 45) 802 had this to say an evaluation of facts and assessment of evidence by trial court.
“It is well settled in our law that matters relating to evaluation of facts, assessment of evidence and consideration of veracity in the testimony of witnesses are essentially and intrinsically questions of fact to be determined primarily by the Court of trial – see KISIEDU & ORS V DOMPREH & ORS (1935) 2 WACA 253 FATOYINBO V WILLIAMS (1956) I FSC 37.”
The learned trial Judge in my respectful view without showing how he arrived at the conclusion picked and chose out of the conflicting and divergent versions of the evidence of PW1 and the accused on a crucial point in the case. How His Lordship arrived at the conclusion that the contract was rescinded by PW1 and PW2 in the face of the evidence of PW1 without disbelieving any of the witnesses cannot be assumed but must be evident from the judgment and on the face of the record. This turns on the credibility of witnesses which cannot be assessed by this court not having had the advantage of seeing the witnesses.
In SHELL BP PETROLEUM DEV. CO. NIGERIA LTD V COLE & ORS (1978) 3 SC [REPRINT] 128 Bello JSC (as he then was) held thus:
“This court has in numerous cases reiterated the rule that the Court of Appeal will not ordinarily interfere with the findings of facts by the trial Judge but where there is ample evidence and the trial Judge failed to evaluate it and make correct findings on the issue the Court of Appeal is in much a good position as the trial court to deal with the fact and to make proper findings. However, in a matter where so much turns on the credibility or reliability of witnesses, the proper course to be taken by the Court of Appeal is to make an order for a retrial. See CHIEF JAMES OKPIRI & ORS V CHIEF IGONI JONAH & ORS (1961) 1 ALL NLR 102, OLALERE OBADARA & ORS V THE PRESIDENT, IBADAN WEST DISTRICT COURT (1964) 1 ALL NLR and OLADIPO MAJA V LEARNDRO STOCCO (1968) NMLR 172.”
This piece of evidence is significant in determining whether or not there was criminal misappropriation or it was a mere business transaction. If the accused failed to deliver the fertilizers as promised and did not refund the money given him, and failed to even account for the money then he could be held to have criminally withheld it, and criminal intention could be inferred form the circumstances.
If on the other hand, the contract was terminated by PW1 and PW2 then the prosecution’s case would have to collapse.
But determining the above would involve resolution of conflicting and divergent evidence of PW1, PW2 and the accused which the learned trial Judge failed, with due respect to do.
It is in the light of the above that I hold that this appeal succeeds in part.
I hereby set aside the judgment and acquittal by the trial court delivered on 29/4/2013 and order a retrial. The suit No. ZMS/GS/20C/2011 Federal Republic of Nigeria V Nasiru Yahaya is hereby remitted back to the lower court to be tried by another Judge of Zamfara State High Court other then Hon. Justice M. B. Tukur.
PAUL A. GALINJE, J.C.A.: I have read before now, the judgment just delivered by my learned brother, Awotoye JCA and I agree with the reasoning and the conclusion arrived thereat. I therefore allow the appeal in part.
I abide by the consequential orders made therein.
AHMAD O. BELGORE, J.C.A.: I have read, in draft, the judgment just delivered by my learned brother Tunde O. Awotoye, JCA. I agree with his reasoning and conclusions that the learned trial Judge failed to resolve the conflicting and divergent evidence of PW1, PW2 and the accused (the respondent herein).
I also allow this appeal in part and abide by the consequential orders contained in the lead judgment.
Appearances
M. S. Abubakar (DCLO) & Salihu Sani (SLO)For Appellant
AND
No appearances for the RespondentFor Respondent
