MR. ADEOTI ADEYEMI v. COMMISSIONER OF POLICE
(2010)LCN/3821(CA)
In The Court of Appeal of Nigeria
On Thursday, the 27th day of May, 2010
CA/S/127/C/09
RATIO
APPEAL: INTERFERENCE WITH FINDINGS; ATTITUDE OF APPELLATE COURT TOWARDS CONCURRENT FINDINGS OF TWO LOWER COURTS
The law is well settled that concurrent findings of two lower courts will not normally be disturbed unless same are shown to be perverse. Appellant has not succeeded in doing that. The two courts below have made necessary findings in respect of all the issues before them, drawn the right inferences and applied the correct principles of law to the accepted facts. This court is disentitled to interfere. See Olalomi Industrial Ltd. v NIDB (2009) 39 NSCOR 240 at 281 – 282. Sanyaolu v. The State (19761 6 SC 37, Nwachukwu v The State (1986) 2 NWLR (Pt 25) 765. Ugumba v. The State(1993) 5 NWLR (Pt 296) 660 at 671.Omoregie v. State (2008) 36 2 NSCOR 1018 at 1334. and Olaiya v. State (2010) 3 NWLR (Part 1181) 423 at 438. PER MUSA DATTIJO MUHAMMAD, J.C.A.
JUSTICES:
MUSA DATTIJO MUHAMMAD Justice of The Court of Appeal of Nigeria
AHMAD OLAREWAJU BELGORE Justice of The Court of Appeal of Nigeria
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
Between
MR. ADEOTI ADEYEMI – Appellant(s)
AND
COMMISSIONER OF POLICE – Respondent(s)
MUSA DATTIJO MUHAMMAD, J.C.A.(Delivering the Leading Judgment): This is an appeal against the decision of the Zamfara State High Court sitting in its appellate jurisdiction delivered on the 22nd day of May, 2008 affirming the conviction but reducing the sentence imposed on the Appellant by the trial Chief Magistrate Court (III) Gusau, Zamfara State in case No.GS/341/C/2003. The facts of the case that brought about the appeal are summarized below.
The Appellant and Alhaji Buzu Mohammed PWIII the complainant, were good friends. It is the prosecution’s case that on loosing his job, the Appellant had requested PW III to assist him with his certificate of occupancy to enable him, the Appellant, obtain goods from a certain company. PWIII obliged the Appellant with his certificate of occupancy No.GS/P/0466 for same to be deposited with the company as security for the supply of omo and other related goods to the Appellant. Instead of depositing the certificate of occupancy with the particular company, it is the prosecution’s further case, that the Appellant fraudulently obtained a loan facility from the then Intercity Bank PLC Gusau using PW III’s certificate as collateral. Appellant’s failure to repay the loan resulted in a suit by the Bank against the Appellant and PWIII at the Zamfara State High Court for the recovery of the loan sum. On the 15th day of November 2002 PWIII lodged a complaint alleging that Appellant had cheated him. Appellant was arraigned before the Chief Magistrate Court Gusau and charged with the offences of cheating and forgery contrary to section 322 and 364 of the Penal Code respectively.
The prosecution called five witnesses and tendered a number of documents the crucial ones being Exhibit C, Application for consent to mortgage purportedly written by PWIII, Exhibit D the certified true copy of certificate of occupancy No GUS/P/0466, Exhibit F International Passport issued to PWIII, Exhibit G2 consent letter to Mortgage Ex. D, and Exhibit G5, the tripatrite deed of legal mortgage in respect of the property covered by Exhibit D and for the loan granted the Appellant.
The Appellant pleaded not guilty to the charges, testified in his defence and called two witnesses. Exhibits H and I, the writ of summons taken out by the Bank against the Appellant and the complainant and the valuation and survey report dated 04/10/97 in respect of the property covered by Exhibit D, the certificate of occupancy No GUS/P/0466, respectively, were tendered and admitted in the course of Appellant’s defence.
The learned trial Chief Magistrate in a well reasoned judgment dated 12th August 2007 found the case against the Appellant proved beyond reasonable doubt and convicted him of cheating contrary to Section 324 of the Penal Code. Appellant was sentenced to a fine of N 15,000 or three years imprisonment in default. He was also ordered to return to PWIII “Exhibit D”, his certificate of occupancy No.GUS/P/04/66.
Dissatisfied with the conviction and sentence, the Appellant appealed to the Zamfara State High Court which in an equally well considered decision dated 12th May 2008 affirmed the conviction and order of return of the certificate of occupancy to PWIII. The High Court however varied the N15,000 fine and the three years in default thereof with a N3,000 fine and two years imprisonment in default instead.
Further aggrieved by this decision, the Appellant has by a notice of appeal dated 12th August 2008, appealed against same to this court on four grounds.
Parties have filed and exchanged briefs of argument as required by the rules of this court. Appellant has at pages 4-5 of his brief distilled three issues from the four grounds in his notice as arising for the determination of the appeal.
The issues read:-
(I) Whether from the totality of the evidence in the printed record, the court below was right in affirming the conviction of the Appellant for the offence of cheating.
(II) Whether in the face of the various relevant documentary evidence particularly G 2 – G5 H and I, the court below was right in affirming the findings of fact of the trial court which was a result of improper evaluation and appraisal of the evidence adduced /by the prosecution.
(III) Whether on the evidence before the court, the court below was not wrong in holding that the signature of the complainant was fraudulently forged.
Learned Respondent counsel has adopted the issues distilled by the Appellant. It is glaring from these issues that the first issue which subsumes the two others is very sufficient in the determination of the appeal. The appeal will accordingly be determined on the basis of the first issue formulated by the Appellant.
Arguing the Appeal, learned Appellant counsel submits that in criminal trials the prosecution must discharge the burden of proof in respect of all material facts while the court has the duty of considering the totality of the evidence led before convicting the person charged. The slightest doubt in the prosecution case arising from either insufficiency of evidence or material contradiction in the testimonies of prosecution witnesses entitles the accused to a discharge and acquittal. Learned Counsel relied on the case of Udosen v. The State (2007) 2 NCC 409 at 428-429.
The trial court has found at pages 59-74, contends Appellant counsel, that an overdraft of the sum of N500,000 was secured by the Appellant with Ex.D as the collateral and on the basis of Ex.G5 signed by PWIII the grantee of Ex.D. The court also found that Ex.C, the application for the consent to mortgage the property on Ex.D, Ex.G2 the consent/approval letter issued by the Ministry of Land and Survey, Gusau and Ex.G3, the receipt of payment for the registration of the deed of legal mortgage, all preceded exhibit G5, the tripartite deed of legal mortgage. Without considering the materiality of these documents the trial court, learned Appellant Counsel further contends, accepted the ipse dixit of PW3 against the testimonies of PW2 and PW4 that are consistent with the documentary evidence. Not surprisingly, learned Appellant counsel submitted, that the trial court reached a perverse conclusion that PWIII by virtue of the facts in exhibit F never signed Ex.G5. It is the same perverse finding that the High court sitting on appeal affirmed at page 113 of the printed record of the appeal.
Learned Appellant counsel further submitted that the prosecution had made bare two competing versions of its case. In one breath it is the prosecution’s case that PW3 by Ex.F did not sign Ex.C dated 03-04-2000 since Ex.C was made while PW3 was away on pilgrimage to Mecca. Prosecution’s second version vide the testimonies of PW2 and PW3 is that Ex.D was voluntarily released to the Appellant by PW3 for same to be used as collateral for a loan on the basis of which the tripartite agreement Ex.G5 was entered into. This second version of the prosecution case supports Appellant’s defence. The trial court, argues learned Appellant counsel, made a fundamental error by wrongly assessing the evidence before it which error the court below has equally endorsed. These conflicting versions of the prosecution’s case raises a doubt which should have been resolved in Appellants’ favour. Learned counsel relies on the State v Musa Danjuma (1997) SCN3 126 136 – 137 and 156 and Udosen v State (supra). Further relying on Nwankwoala v State (2007) 2 NCC 107 at 121, Ogon v State (2007) 28 WRN 1 at 15. Akinbisade v. State (2006) 27 NSQR 743 at 758-759, Ibeh v. State (2001) 2 ACLR 376 at 393 and Togun v. Ishola Oluwa (2007) 46 WRN 160 at 186, learned Appellant’s counsel insists that neither the trial court nor the Court below is at liberty to pick and choose between the two versions proffered by the prosecution.
Lastly, learned Appellant counsel contends that the failure of the prosecution to lead evidence of genuine specimen of PWIII’s signature against the background of the signatures on Ex.C and Ex.G5 which the trial court and the court below found not to be PWIII’s signature is fatal to the prosecution’s case. A comparison of PWIII’s authentic signature with the disputed signatures on Ex. C and G5, learned Appellant counsel reiterates, is crucial to the justice of the case. Absence of such a comparison amounts to a failure on the part of the court to take cognizance of all the facts relevant to the case before them. That failure, counsel submits, raises serious doubt in the prosecution’s case. A determination of whether or not Appellant had committed the offence of cheating is not possible in the absence of comparative evidence between Appellant’s signature and the disputed one.
Learned counsel urges us to re-evaluate the evidence on the printed record and determine whether or not the offence of cheating against the Appellant has been established beyond reasonable doubt. He relies on Olayinka v. State (2007) 46 WR 147 at 165, Adeosun v. state of 2007 46 WRN 46 at 71 and Mobobunie v. Adewunmi (2006) 19 WRN 112 at 160. Learned counsel submits that such a re-evaluation would justify the setting aside of the lower court’s decision based substantially on a finding at page 117 of the records of this appeal that shifts the burden of proof on the Appellant contrary to the clear provision of section 36(5) of the 1999 constitution thereby occasioning gross miscarriage of justice. On the whole, learned counsel urges us to allow the appeal.
Responding, learned counsel to the Respondent concedes that the Respondent’s onus is to prove the offence against the Appellant beyond reasonable doubt. That, he argues, does not mean beyond all shadow of doubt. He relies on the case of Millar v Minister of Pension (1947) 10 NLR8. The burden as required by law, learned counsel submits, has been met and the conviction and sentence of the Appellant from the evidence on record is proper and consistent with the law. Learned counsel outlined the ingredients of the offence of cheating under S 320 of the Penal Code and butressed his contention with the facts as established by the prosecution. He hammers particularly on Ex.C and F to stress that Appellant who was given Ex.D to lodge with a company for the purposes of obtaining merchandise instead, and without PWIII’s consent, diverted the certificate of occupancy to raise a loan. Prosecution’s case in that regard is that Ex.C was not written and signed by PWIII. As at the date it was made, PWIII by Ex.F, was not in Nigeria. PW.V, learned respondent counsel submits, also attested further to this fact in his testimony thereby corroborating PWIII’s testimony to the effect that he was out of the country on the date Ex. C was purportedly made. It is not true, Respondent counsel also argues, that PWIII did not deny signing Ex.G5. He did. Even DWII, and DWIII, all Bank officials, could not establish the identity of the 3rd signatory to G5 beside the Appellant and the Bank. The Appellant cannot, given S.132 of the Evidence Act argue that oral evidence cannot be led where fraud is involved to challenge the content of a document, here Ex. G5. The complaint of the Appellant’s in the appeal, learned Respondent counsel concluded, is on wrongful evaluation of evidence by the trial as well as the court below. Even where such lapse is shown to have occurred, and the Appellant has not established its occurrence, it remains the Appellant’s burden to show the injustice occasioned by the lapse for his appeal to succeed. Having proved neither, learned counsel contends, the appeal must fail. He relies on Omoregie v. State (2008) NSCOLR 36, State v Ajie (2000) 3 NSCOR 53 at 55 and Mayaki v State (2008) NSCQLR 35 at 67 and urges that the appeal be dismissed.
Appellant’s sole grudge in this appeal relates to his conviction by the trial court as affirmed by the lower court. He contends that both courts have not evaluated the evidence led by the prosecution properly and that had same been done he would have been discharged and acquitted.
It is significant to recall that Appellant was convicted for cheating under S 324 of the Penal Code. The trial court’s finding at page 84 of the record on the conviction drew largely from the testimonies of PWIII, PW.5 and Ex.F, PWIII’s passport. The latter shows that as at the time Ex.C, the letter purportedly written by PWIII to seek for consent to mortgage his land evidenced by Ex.D was written, PWIII was not in Nigeria. Being away in Saudi Arabia for pilgrimage then, it was not possible for him to have written Ex.C. The inference the trial court made was that Ex.C which kick started the entire process of obtaining the loan from Intercity Bank by the Appellant was fraudulently obtained and employed, contrary to the use the Appellant and PWIII agreed same would be put to.
The lower court in the exercise of its appellate jurisdiction upheld the trial court’s finding as recounted above. After a thorough consideration of the evidence led before the trial court, the court below at page 116 of the printed record of this appeal held:-
“In sum the resultant effect of all the above in our view is that Ex.C was not made and signed by the complainant PW3 as it is inconceivable that he could be in Mecca and Nigeria at the same time. We are therefore in agreement with the finding of the learned trial senior magistrate that the complainant PW3 did not make or sign Ex.C.”
The impact of this finding of the lower court on the fortune of Appellant is reflected in the succeeding portion of the lower court’s judgment thus:-
“This brings us to Exhibit G5, the deed of legal Mortgage purportedly dated 26-2-2001 and purportedly signed by the Appellant, the Bank and the complainant PW3. Ex.G5 was signed on 26/2/2001. The complainant PW3 in his testimony denied signing Exhibit G5 or making any transaction or interaction with the Bank…From the testimony of PW4 it appears to us that before Exhibit G5 could be signed Exhibits C and G1, (approval for consent to mortgage by the Executive Governor, must have been made. In other words, Exhibits C and G1 must definitely come before exhibit G.5…
To our minds the signature of the complainant PW3 was fraudulently forged by some one masquerading and parading himself as the complainant…the learned trial senior magistrate in our view was right to have convicted the Appellant based on the evidence adduced before the court. The conviction is therefore affirmed.”
Learned Appellant counsel challenges these concurrent findings of the two courts asserting that both courts had improperly evaluated the evidence of both sides and resultantly arrived at the wrong conclusions. I am unimpressed by these submissions. I completely agree with the findings of the two lower courts that PWIII neither signed nor authorized the making of Ex.C and Ex.G5. He was neither aware that these exhibits were made nor put to the use the Appellant fraudulently employed the two to and to his singular advantage. True PWIII had voluntarily released Ex.D, his certificate of occupancy, to the Appellant. It was however in the understanding that same would be used by the Appellant to obtain goods from a company and not to raise loan from the Bank.
The law is well settled that concurrent findings of two lower courts will not normally be disturbed unless same are shown to be perverse. Appellant has not succeeded in doing that. The two courts below have made necessary findings in respect of all the issues before them, drawn the right inferences and applied the correct principles of law to the accepted facts. This court is disentitled to interfere. See Olalomi Industrial Ltd. v NIDB (2009) 39 NSCOR 240 at 281 – 282. Sanyaolu v. The State (19761 6 SC 37, Nwachukwu v The State (1986) 2 NWLR (Pt 25) 765. Ugumba v. The State(1993) 5 NWLR (Pt 296) 660 at 671.Omoregie v. State (2008) 36 2 NSCOR 1018 at 1334. and Olaiya v. State (2010) 3 NWLR (Part 1181) 423 at 438.
The judgment of the trial court that found the Appellant guilty of the offence of cheating as affirmed by the lower court must therefore endure- It is for that reason that I resolve the lone issue in this appeal against the Appellant and dismiss the totally unmeritorious appeal. The decision of the trial court as affirmed by the court below is hereby further affirmed.
AHMAD OLAREWAJU BELGORE, J.C.A.: An appellate court such as this Court does not make a practice of interfering with findings of fact or concurrent findings of fact by lower courts unless the findings are shown to be perversed or based on wrong principles of law. In the instant appeal, learned counsel for the Appellant has failed to show that the concurrent findings of facts by both the trial and the lower courts are perverse. The facts remain that PWIII could not have been both in the Kingdom of Saudi Arabia and in Nigeria on the same date to execute Exhibit G5. The Appellant has not been able to explain this supernatural power he wants the two lower courts and this Court to ascribe to the complaint, PWIII.
The authorities that this Court will not interfere with findings or concurrent findings of fact by lower courts are legion. See BAMGBOYE v. OLAREWAJU [1991] 4 NWLR (Pt. 184) 132; NBONU v. NWOTI [1991] 7 NWLR (Pt. 206) 737; KADA V. STATE [1991] 8 NWLR (Pt. 208) 134, etc.
The Appellant has failed woefully to dislodge the burden of showing that the finding of fact by the two lower courts is perverse.
To this end, I agree absolutely with my learned brother, MUSA DATTIJO MUHAMMAD, J.C.A. that this appeal should be dismissed for the reasons given by him in the lead judgment. I also abide by the consequential orders made by him.
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.: I have had the privilege of reading an advanced copy of the judgment just delivered by my learned brother, Musa Dattijo Muhammad, J.C.A. I agree with the lucid reasoning, succinct review of counsel’s submissions on the lone issue adopted for resolution and conclusion reached thereon, with the effect that this appeal should be dismissed. The appeal is annoying, nauseating and most unmeritorious. I have nothing to add. I adopt the same as mine and also abide by the consequential orders made therein. The appeal is accordingly dismissed.
Appearances
P. M. Lasco Esq. For Appellant
AND
Muazu Shehu Ahmed Esq. For Respondent
