PRINCE LUKMAN O. AJOSE v. FEDERAL REPUBLIC OF NIGERIA
(2011)LCN/4285(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 8th day of February, 2011
CA/L/593/10
RATIO
ISSUES FOR DETERMINATION: EFFECT OF AN ISSUE FOR DETERMINATION NOT FLOWING FROM A GROUND OR GROUPS OF GROUNDS OF APPEAL
Any issue not flowing from a ground or groups of grounds of appeal is incompetent and any argument made therein is also incompetent and ought to be struck out. See A. B. U. v. Molku (2004) All F.W.L.R. (pt.228) 664; Okoye v. Nigeria Construction and Furniture Co. Ltd. (1991) 6 N.W.L.R. (pt.49) 509; Abodanrin v. Arabe (1995) 5 N.W.L.R. (pt.393)77. PER JOHN INYANG OKORO, J.C.A.
CREDIBILITY OF WITNESS: POSITION OF THE LAW ON THE CONSEQUENCE OF A WITNESS GIVING ON OATH TWO MATERIALLY INCONSISTENT EVIDENCE
The Apex court had said it all in Ezemba v. Ibenenme (2004) All F.W.L.R. p.1786 at 1816 that:-
“No witness who has given on oath two materially inconsistent evidence is entitled to the honour of credibility. Such a witness does not deserve to be treated as a truthful witness”. See also Ajide v. Kelani (19…) 1 N.S.C.C. Vol.16 p.1316. PER JOHN INYANG OKORO, J.C.A.
COUNT IN CHARGES: ON WHOM LIES THE DUTY TO LEAD CREDIBLE EVIDENCE TO PROVE EACH COUNT IN THE CHARGE; WHETHER AN ACCUSED PERSON WHO WAS DISCHARGED ON ONE COUNT, CAN BE CONVICTED ON ANOTHER WHICH HAS BEEN PROVED
The prosecution is under a duty to lead credible evidence to prove each count in the charge and any count he is unable to prove must fail. It is not the law that if an accused person is discharged on one count, he cannot be convicted on another which has been proved. PER JOHN INYANG OKORO, J.C.A.
CREDIBILITY OF WITNESS: WHETHER AN ACCUSED PERSON’S INCONSISTENT STATEMENT IN COURT CAN OPERATE TO DENY HIM THE BENEFIT OF CREDIBILITY
It should be emphasized that an Accused person’s prevarication or lying/inconsistent statement in court shall not ordinarily be taken as evidence of guilt, but may in appropriate cases, as in this case operate to deny such an accused the benefit of credibility. See AJIDE V. KELANI 1 N.S.C.C. VOL. 16 PAGE 1316. PER MOHAMMED AMBI-USI DANJUMA, J.C.A.
JUSTICES
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
JOHN INYANG OKORO Justice of The Court of Appeal of Nigeria
MOHAMMED AMBI-USI DANJUMA Justice of The Court of Appeal of Nigeria
Between
PRINCE LUKMAN O. AJOSE Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIA Respondent(s)
JOHN INYANG OKORO, J.C.A. (Delivering the Leading Judgment): The Appellant, the erstwhile Chairman of Lagos Island Local Government, Lagos, was arraigned on 17th July, 2007 before Oyewole, J. of the Lagos State High Court on a six counts charge of using his office to confer a corrupt advantage upon himself by collecting various sums of money for meetings and conferences which he never attended any. He pleaded not guilty to the charge.
The prosecution called six witnesses after which the Appellant made a no case submission which was overruled. The Appellant later gave evidence on his own behalf. At the end of the proceedings, the learned trial Judge acquitted the Appellant in counts 3 and 4 and convicted him in counts 1, 2, 5 and 6 and sentenced him to 2 years imprisonment without option of fine. The said Judgment was delivered on 31/3/2010.
Dissatisfied with the conviction and sentence handed down by the learned trial Judge, the Appellant filed Notice of Appeal dated 15/4/10 on 16/4/10. Three grounds of appeal are contained in the said Notice of Appeal. From the three grounds of appeal, the learned counsel for the Appellant, has distilled one issue for determination.
The issue states.-
“whether or not the trial Judge’s reasons for discharging and acquitting the Appellant on counts 3 and 4 are equally applicable to counts 1, 2,5 and 6 so as to discharge and acquit the Appellant on the same score”.
The learned counsel for the Respondent also formulates one issue identical to that of the Appellant but couched differently. It says:-
“Whether the trial Judge’s reasons to acquit the Appellant in counts 3 and 4 were applicable to counts 1 , 2, 5 and 6 when the evidence and exhibits tendered in support of each of them were not the same”.
Clearly, this appeal is to be determined on one narrow issue.
Whether I adopt the issue as couched by the Appellant or the Respondent, I shall arrive at the same goal post as both are saying the same thing though that of the Respondent is more explicit. I shall therefore adopt the issue as couched by the Respondent in determining this appeal.
At the hearing of this appeal, the learned counsel for the Respondent was absent though duly served with hearing notice. No reason at all was given for his absence. In view of the fact that briefs were filed and exchanged and in keeping with Order 17, Rule 9(a) of the court of Appeal Rules, 2007, the brief of the Respondent was deemed argued. However, before the briefs were adopted and argued, the learned counsel for the Appellant applied that the Notice of Preliminary Objection by the Respondent and the arguments made therein be struck out since the Respondent’s counsel was absent and unable to move the court accordingly. The said Notice of Preliminary Objection was struck out by this court. Also struck out was the Appellant’s reply thereof.
Before considering the argument of both counsel, let me quickly point out here that certain matters have been imported into this issue while making submissions and I think it is appropriate to let the parties know that those arguments shall be discountenanced in this appeal as they do not add to or subtract from the narrow issue submitted for the determination of this appeal. The arguments stuffed into this issue relate to non-tendering of the petition on which the prosecution’s case was based, non mention of the name of the petitioner or that the said petitioner was not called as a witness, issue of retirement of money allegedly collected and the mention of local seminars for the first time in court. These are issues outside what is before us. The learned counsel for the Respondent had pointed out these issues in his reply and I quite agree with him that these are matters not contemplated by the issue for determination. Moreover, these are issues not covered by the grounds of appeal. Issues for determination and the argument based on them must derive from a valid ground of appeal.
Any issue not flowing from a ground or groups of grounds of appeal is incompetent and any argument made therein is also incompetent and ought to be struck out. See A. B. U. v. Molku (2004) All F.W.L.R. (pt.228) 664; Okoye v. Nigeria Construction and Furniture Co. Ltd. (1991) 6 N.W.L.R. (pt.49) 509; Abodanrin v. Arabe (1995) 5 N.W.L.R. (pt.393)77.
In order to appreciate the argument of both counsel on the issue, I wish to bring to the fore the Judgment of the learned trial Judge in respect of counts 3 and 4. On page 191 of the record, the learned trial Judge, after stating the offence in count three, went on to state as follows:-
“The case of the prosecution here consists of the testimony of PW3 the ICPC investigator that the
Defendant never visited the Minister involved, corroborated by the evidence of PW4 the retired civil servant who worked in the said Ministry. The exhibits tendered by the prosecution did not however include any evidence that the Defendant collected the alleged sum either for the stated purpose or at all. This seems to accord with the Defendant’s position that he never collected any money for the alleged visit here and never made any such visit. I therefore hold that the prosecution has failed to prove this count 3 beyond reasonable doubt and I find the Defendant not guilty on the said count 3”.
In respect of count 4, the learned trial Judge held on the same page that :-
“The Defendant was categorical that he did not attend the programme in question and stated that he also never collected money for it. His denial would have been effectively refuted if the prosecution was able to go beyond exhibit P3, the payment voucher to include a cheque drawn in the Defendant’s name. In the absence of such conclusive evidence from the prosecution, I am unable to hold that the prosecution has proved this count 4 beyond reasonable doubt and I therefore find the Defendant not guilty in respect of the said count 4”.
The learned trial Judge however convicted the Appellant on counts 1, 2, 5 and 6. The learned counsel for the Appellant had submitted that the question which is pertinent here which he urged this court to determine is whether or not all the other vouchers in respect of all the other counts 1, 2, 5 and 6, were signed at all. That if they were not signed, the court should hold that if the failure to sign them were fatal to counts 3 and 4, they must also be fatal to all the other counts as they raise doubts which must be resolved in the Appellant’s favour. That is all in the Appellant’s brief that relates to this issue and this is contained on page 6 paragraph 3.4 of the brief.
The rest of the argument even challenge the competence of the charges and the investigation of the case. This is quite unfortunate as they go outside the issue distilled for determination. I dealt with this laxity earlier and I do not intend to repeat it here.
In response, the learned counsel for the Respondent referred the court to the evidence led at the trial which led to the conviction of the Appellant in counts 1, 2, 5 and 6 and showed the difference between this set of evidence and the one which led to the acquittal of the Appellant in counts 3 and 4. That the court below relied on the exhibits tendered to convict the Appellant on counts 1, 2, 5 & 6 and discharged him on other counts where no exhibits were tendered, giving him the benefit of the doubt. These are the exhibits as relates to each count:-
“Count 1: Exhibit P1 (Payment Voucher) Exhibit P2DH (Cheque)
Count 2: Exhibit PT (Payment Voucher) Exhibit PZDJ (Cheque)
Count 3: No Exhibit at all Count
4: Exhibit P3 (Payment Voucher) No Cheque
Count 5: Exhibit P4 (Payment Voucher) Exhibit P20F (Cheque)
Count 6: Exhibit P5 (Payment Voucher) Exhibit P21 (Cheque)”
He submitted further that apart from the payment vouchers and the cheques, there were exhibits 20 C and E (confirmation of cheques to the bank) which confirmed the cheques as having been issued by the Local Government and the names of the beneficiaries. That the cheques also had the word “paid” stamped on them to show that the Appellant was actually paid the money. He urged the court to hold that since each count had its own set of evidence and exhibits, the court below was right in using evidence adduced for each count to either acquit or convict the Appellant.
I note that the Appellant on page 136(d) of the record clearly denied ever collecting the cheques when he said under cross examination:-
“l did not collect these cheques because I did not receive the vouchers”.
However, when the Appellant was confronted with the cheques which he duly endorsed he ate his words and admitted that the cheques were issued to him and that he actually endorsed them to PW1 and one Obisanya but added that he directed them to return the money to the Local Government.
Faced with this kind of an unstable witness, I think the court below was right in being extra careful so as not to convict or acquit without justifiable reason. I guess that was why the learned trial Judge insisted on seeing those cheques before he could make up his mind whether to believe that the Appellant collected the money or not.
Though the Appellant had by his conduct discredited himself, the court below still gave him the benefit of the doubt. The Apex court had said it all in Ezemba v. Ibenenme (2004) All F.W.L.R. p.1786 at 1816 that:-
“No witness who has given on oath two materially inconsistent evidence is entitled to the honour of credibility. Such a witness does not deserve to be treated as a truthful witness”.
See also Ajide v. Kelani (19…) 1 N.S.C.C. Vol.16 p.1316.
I note that on the two counts 3 & 4 which the Appellant was acquitted, there were not enough evidence to convict him. In count 3, there was no exhibit at all and in count 4, only the payment voucher was tendered and to make things worse, the said voucher was never signed by the Appellant. Doubt was therefore created in the mind of the learned trial Judge and he acquitted him accordingly on the two counts.
However, in respect of counts 1, 2, 5 and 6 both the payment voucher and the cheque were tendered. Even where the Appellant did not sign the payment voucher, he had collected the cheque which he had endorsed to his subordinates to collect money for him. I think that was enough evidence to show that he collected the funds and having admitted that he did not attend those meetings and seminars, the court below rightly convicted him on those other counts.
There is no reason why the Appellant should be discharged on the counts which the prosecution had led credible evidence to prove the allegation therein. The prosecution is under a duty to lead credible evidence to prove each count in the charge and any count he is unable to prove must fail. It is not the law that if an accused person is discharged on one count, he cannot be convicted on another which has been proved.This issue, as it is, does not avail the Appellant at all.
Accordingly, it is hereby resolved against him.
On the whole, this appeal lacks merit and is hereby dismissed. I affirm the conviction of the Appellant by the lower court in counts 1,2, 5 and 6 of the charge. I also affirm his acquittal in counts 3 and 4 only. The sentence passed on the Appellant is accordingly affirmed.
HUSSEIN MUKHTAR, J.C.A.: I have had a preview of the leading judgment just delivered by my learned brother Okoro, JCA and absolutely agree with his reasoning and conclusion in dismissing the appeal and affirmation of the appellant’s conviction in counts 1,2,5 and 6 of the charge, and his acquittal in counts 3 and 4. I adopt same as mine and hereby dismiss the appeal and affirm the sentence passed on the appellant by the court below.
MOHAMMED AMBI-USI DANJUMA, J.C.A.: I agree entirely and adopt the reasoning and conclusion arrived at by My Lord J. I. okoro, J. C. A., in the lead Judgment that this appeal should be dismissed and the conviction and sentence affirmed.
The Appellant was rightly convicted on counts 1, 2, 5 and 6 and sentenced to a term of imprisonment upon the evidence of prosecution witnesses which was corroborated by the appellant’s admission of endorsement of the cheques for proceeds of the payment vouchers which though not signed by him were handed over by him to PW1, and another person, This confirmation of the wrongful movement and use of the proceeds of the cheques at the Appellant’s instance closed the lacuna and effectively created the linkage between Exhibit P1, and P2DH, P31 and PIDJ, Exh. P4 and P2O F and Exhibit P5 and P21 and the counts 1, 4, 5 and 6 respectively against the Appellant. In short, the Appellant had been linked to the commission of the offences alleged in those counts. It should be emphasized that an Accused person’s prevarication or lying/inconsistent statement in court shall not ordinarily be taken as evidence of guilt, but may in appropriate cases, as in this case operate to deny such an accused the benefit of credibility. See AJIDE V. KELANI 1 N.S.C.C. VOL. 16 PAGE 1316.
The counts upon which the Appellant was convicted were proved beyond reasonable doubt and an acquittal on other counts does not therefore entitle him to acquittal on these established charges.
It is for the above and on the basis of the more detailed and meticulous consideration by the lead judgment that I too affirm the conviction and sentence as made. Appeal is dismissed.
Appearances
Folasade Bankole-Oki (Miss) with Adekunle Oyesanya Esq;
M.O.J. Akande Esq.; Tokumbo King Esq. and U. A. Otokhine Esq.For Appellant
AND
unpresented.For Respondent
