JULIUS BAYODE AYENI v. THE STATE
(2011)LCN/4682(CA)
In The Court of Appeal of Nigeria
On Thursday, the 7th day of July, 2011
CA/AE/C.27/2010
RATIO
ERROR IN A CHARGE SHEET: EFFECT OF THE MIS-DESCRIPTION OF THE LAW OR THE PARTICULAR SECTION OF THE LAW UNDER WHICH A CHARGE IS BROUGHT
In any case, the law is that, once an offence described in a charge is one created by a statute named in the charge and that statute is in force in that territory wherein the offence was alleged to have been committed, it will be immaterial to aver that an error has been committed in stating the written law or the particular section of the law, unless it can be shown that such error has in fact prejudiced or misled the accused. Thus, Karibi-Whyte, J.S.C in the case of OGBOMOR V THE STATE (supra) at PP.309-310 stated the law as follows: “A combined reading of the provisions of section 33(8) and section 33(12) of the constitution 1979 suggests that whereas no person can be tried and convicted of an offence which did not exist at the time of its commission, or which is not contained in an existing law, there is no constitutional or other prohibition against trial and conviction of a person for an offence which is known to the law and is in existence at the time of its commission but the relevant statute of which has been incorrectly stated. Thus, it is clear that a mere mis-description of the law under which a charge has been brought, does not necessarily render the offence one not known to the law at the time of its commission. Hence, as long as the offence charged discloses an offence in a written law and such law is in existence at the time of the commission or omission of the act alleged in the charge was done, the information is valid, and is merely a defective if there is any mis-description of the law under which the charge was laid.” It therefore follows that where the defect in the charge is merely an error in stating the exact title or Section of the statute or enactment allegedly contravened by the accused, the defect is immaterial and the trial and conviction will not be vitiated. It is where an accused is charged with an offence and the statute which he is alleged to have contravened is not stated in the charge sheet that the defect will be considered as material and thus vitiating the trial. PER HARUNA M. TSAMMANI, J.C.A.
INTERPRETATION OF STATUTE: INTERPRETATION OF THE PROVISION OF SECTION 167 OF THE CRIMINAL PROCEDURE ACT AS TO WHEN AN OBJECTION TO A DEFECTIVE CHARGE SHOULD BE MADE
Furthermore, the law as stipulated under Section 167 of the Criminal Procedure Act is that, any objection to a defect in a charge should be made immediately after the charge has been read over to the accused and not later. For the avoidance of doubt, Section 167 of the Criminal Procedure Act provides that: “Any objection to a charge for any formal defect on the face thereof shall be taken immediately after the charge has been read over to the accused and not later.” This provision is clear and unambiguous and need no exercise in statutory construction on my part as to its meaning. It means what it says, that an objection for any formal defect in a charge shall be taken immediately it is read over to the accused and not later. The only exception may be when the error or defect has the effect of depriving the court of jurisdiction. See OBAKPOLOR V STATE (SUPRA at PP.124-125. This is more so, as in the instant case, where the accused is represented by counsel. He cannot use it as a trump card to be used later in the proceedings. See ESSIEN V C.O.P (Supra) at P.500 and STATE V AKPABIO (1993) 4 N.W.L.R (PT.286) P.204. PER HARUNA M. TSAMMANI, J.C.A.
DUTY OF AN APPELLANT: WHETEHR AN APPELLANT CHALLENGING THE FINDINGS OF FACT MADE BY A TRIAL COURT HAS A DUTY TO DEMONSTRATE BEFORE THE APPELLATE COURT HOW THOSE FINDINGS ARE WRONG OR INCORRECT
… it is also the law that the findings on primary facts in a case are matters exclusively within the province of the trial court. Accordingly, there is a presumption that the findings of fact arrived at by a trial court are right and correct until the contrary is shown. The onus is on a party who challenges such findings of fact made by a trial court to prove the contrary. In that respect, where an appellant challenges the findings of fact made by a trial court, he has to demonstrate before the appellate court how those findings are wrong or incorrect. This is because, an appellate court such as this, will only interfere with such findings of the trial court, where it is found that the trial court failed to either properly evaluate the evidence led before it, or where such findings are shown to be perverse. This court will also interfere where it is found that the trial court drew wrong inferences from the accepted facts or applied the wrong principles to such facts. See ATTAH V STATE (2009) 15 NWLR (PT.1164) P.284 at P.304: EBLA CONSTRUCTION LTD. V CONSTAIN (WEST AFRICA) PLC (2011) 6 N.W.L.R (PT.1242) P.110: OLODO V. UKPOLO (2010) 19 W.R.N. P.159. PER HARUNA M. TSAMMANI, J.C.A.
BURDEN OF PROOF: WHETHER THE BURDEN OF PROOF IS ON THE PROSECUTION TO PROVE THE GUILT OF THE ACCUSED BEYOND REASONABLE DOUBT
… in a criminal trial, the burden is on the prosecution to prove the guilt of the accused in the commission of the crime beyond reasonable doubt. That burden remains throughout on the prosecution and never shifts (except in a very special circumstances where a statute may require an accuse to prove certain facts) and it never shifts. This is because an accused person is presumed to be innocent until he is proven guilty. It is a fundamental right guaranteed to an accused person by Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria. Thus, if at the end of the trial and on the totality of the evidence adduced thereat, a reasonable doubt about the guilt of the accused is created, the prosecution would have failed to discharge the onus cast on them by law to prove his guilt beyond reasonable doubt and in that instance, the accused will be entitled to an acquittal. In other words, if upon evaluation of the totality of the evidence adduced at the trial, there is a reasonable doubt about the guilt of the accused person, the court has it as a duty to resolve that doubt in favour of the accused. See EDOH V. STATE (2004) 5 NWLR (PT.865) P.17: IGABELE V STATE (SUPRA), ONUBOGU & ANOR V THE STATE (1974) 9 S.C. P.1. NJOKU V STATE (1993) 6 N.W.L.R (PT.299) P.272 and ODAH V AHMADU (1999) 5 N.W.L.R (PT.601) P.22 at P.29. In discharging this burden, the prosecution must prove all the essential elements or ingredients of the offence charged. If one ingredient remains unproved, the accused will be entitled to an acquittal. See ALOR V STATE (1997) 4 N.W.L.R (PT.501) P.511. ONYEACHIMBA V. STATE (1998) 8 NWLR (PT.563) P.587 at P.594. BABUGA V STATE (1996) 7 N.W.L.R (PT.460) P.279 and ONUBOGU V STATE (SUPRA). PER HARUNA M. TSAMMANI, J.C.A.
JUSTICES
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
CHIDI NWAOMA UWA Justice of The Court of Appeal of Nigeria
HARUNA M. TSAMMANI Justice of The Court of Appeal of Nigeria
Between
JULIUS BAYODE AYENI Appellant(s)
AND
THE STATE Respondent(s)
HARUNA M. TSAMMANI, J.C.A. (Delivering the Leading Judgment): The Appellant; Julius Bayode Ayeni, was charged before the Ekiti State High Court on a two count charge of stealing. The first count alleged that he stole ten (10) metric tons of graded Cocoa valued at One Million, One Hundred and Eighty Thousand Naira (N1,180,000:00) Only, the property of Co-operative Multipurpose Union, Ikole-Ekiti in Ekiti State sometimes in November, 1997. The second count alleged that sometimes in 1996 at Ikole-Ekiti in the Ikole-Ekiti Judiciaf Division of Ekiti State, he stole the sum of One Million, Two Hundred Thousand Naira (N1,200,000:00) only, the properly of Co-operative Multipurpose Union, Ikole-Ekiti. The offences are said to be contrary to and punishable under Sections 390(a) and 390(9) of the Criminal Code Law, Cap.30, Volume II, Laws of Ondo State of Nigeria as applicable to Ekiti State.
At the trial, the prosecution called four (4) witnesses and tendered some exhibits which included the statement of the Appellant made to the police in the course of the investigation. The Appellant on his part gave evidence as the D.W.1 and tendered some exhibits marked as Exhibit D, E, F and G. He did not call any other witness. The gist of the Respondent’s case against the Appellant is that the Appellant was the Manager of the Egbeoba Co-operative Union, which deals in collecting money from certain organizations to purchase graded Cocoa for such organizations. That the Union collected N1,180,000:00 from Cooperative Cocoa Product, Akure as the cost of ten tons of Cocoa and that the Cocoa was duly purchased by the Union. It was then alleged that the Appellant was mandated to convey and deliver the Cocoa produce to the Co-operative Cocoa Product, Akure but without the consent or knowledge of the Union, the Appellant failed to deliver same to the Co-operative at Akure but sold same to a certain Black Arrow Ventures and failed to account for the proceeds. The Appellant denied stealing the ten (10) tons of graded cocoa and stated that he only sold the produce to the Black Arrow Ventures when the Co-operative Cocoa Product, Akure refused to take delivery due to fall in the price of cocoa. That he did so on the instruction of the President of the Egbeoba Multipurpose Co-Operative Union, Ikole, one Mr. Aroso.
At the conclusion of the trial, the learned trial Judge, D.O. Jegede, J, disbelieved the testimony of the Appellant and proceeded to convict him on the 1st count of stealing the ten tons of graded Cocoa, property of the Egbeoba Multipurpose Co-operative Union, Ikole. The learned trial Judge however found that no evidence was adduced in respect of the 2nd count of stealing N1,200,000:00 and consequently discharged and acquitted the Appellant on it. The Appellant is dissatisfied with the judgment of the lower court and has now appealed to this court vide Notice of Appeal dated the 10th day of October, 2007 and filed the same day. The Grounds of Appeal as contained in the said Notice of Appeal, but without their particulars are as follows:
1. The trial court erred in law in convicting and sentencing the Accused/Appellant to three (3) years imprisonment when it is clear that the Accused/Appellant was charged before the court under a wrong law or non existing law and this led to a miscarriage of justice.
2. The trial court erred in law in convicting and sentencing the Accused/Appellant to three (3) years imprisonment when his evidence adduced in defence of the charge of stealing was never challenged or controverted by way of cross-examination and this led to a miscarriage of justice.
3. The trial court is biased against the Accused/Appellant when he convicted and sentenced the Accused/Appellant to three (3) years imprisonment and this led to a miscarriage of justice.
4. The trial court erred in law in convicting and sentencing the Accused/Appellant to three (3) years imprisonment without using his discretion judicially and judiciously to give an option of a fine and this led to a miscarriage of justice.
5. The sentence passed on the Accused/Appellant on conviction is harsh and excessive being a first offender.
6. The decision of the trial court is altogether unwarranted, unreasonable and cannot be supported having regard to the evidence adduced before the court.
In compliance with the rules and practice of this court, the parties filed and exchanged Briefs of Argument. The Appellant’s Brief of Argument which is settled by S.A Longe Esq. of counsel is dated the 10th day of November, 2008 and filed the 11th November, 2008. The Appellant also filed a Reply Brief dated and filed the 2nd March, 2011. In the said Appellant’s Brief of Argument, three (3) issues were distilled for the determination of this court from the six (6) Grounds of Appeal. These issues are as follows:
(A) Whether the trial court was right in convicting and sentencing the Appellant to three (3) years imprisonment when it is patent that the accused was charged to court under a wrong law or a non-existing law.
(B) Whether the trial court was right in convicting and sentencing the Appellant to three (3) years imprisonment without an option of a fine when it is clear that the Appellant is a first offender.
(C) Whether by the evidence adduced before the trial court, has the offence of stealing against the Appellant been proved by the prosecution more so that the evidence of the Appellant in defence of the charge was not challenged or controverted by the prosecution by way of cross-examination.
The Respondent also filed a Brief of Argument dated the 17th February, 2011 and filed the 18th of February, 2011. It was deemed filed on the 21st February, 2011 by order of this Court granted on the said 21/02/2011 vide Motion on Notice dated the 17/02/2011 and filed the 18/02/2011. In the said Respondent’s Brief of Argument, three (3) issues were also formulated for determination as follows:
(a) whether the Appellant was charged under a wrong law or non-existing law so as to vitiate the trial.
(b) Whether prosecution proved the charge of stealing against the appellant beyond reasonable doubt.
(c) Whether the trial court was right in convicting and sentencing the Appellant without an option of fine.
A sober and careful consideration of the issues as formulated by the parties would show that they are similar in substance. I shall therefore adopt the issues as formulated by the Appellant in my determination of this appeal. However, I shall consider the issues in the sequence in which they were argued by the Respondent.
I find it pertinent to state that this appeal was heard on the 5th of May, 2011. At the hearing, the Appellant adopted the Brief of Argument and the Reply Brief therein and urged us to allow the appeal, set aside the conviction and sentence passed on the Appellant and discharge and acquit the Appellant. The Respondent also adopted the Respondent’s Brief of Argument and urged us to dismiss the appeal, and affirm the conviction and sentence passed on the Appellant.
I now begin the consideration of this appeal with issue 1 as formulated by the Appellant. That issue is:
Whether the trial court was right in convicting and sentencing the Appellant to three (3) years imprisonment when it is patent that the accused was charged to court under a wrong law or a non-existing law.
Arguing this issue, learned counsel for the Appellant relied on Section 151 (3) of the Criminal Procedure Law, Laws of Ondo State, 1978, as applicable to Ekiti State and the cases of STATE V NWACHINAKE (2008) ALL F.W.L.R (PT.398) P.204 at PP.223 – 224, HARB V F.R.N (20081 ALL F.W.L.R (PT.430t P.705 at P.723 to submit that the Law set out must create the offence and the punishment attached to the offence. That in the instant case, the Accused/Appellant was charged and tried under Section 390(a) of the Criminal Code Law, Cap.30, Volume 1, Laws of Ondo State of Nigeria , 1978, as applicable to Ekiti State and that it is on this law that the accused was convicted and sentenced to three (3) years imprisonment without an option of a fine. He then contended that there is no such Section 390(a) in the said Criminal Code Law. That the issue was raised by the defence counsel but the trial court ignored the submission of the counsel and gave reasons out of his own mind which were not given as evidence before the Court. That at the time the issue was raised, the prosecution still had the chance to apply to amend the charge but did not do so, up to the time the trial judge delivered judgment. Learned counsel then contended that the learned trial judge also had the power to alter the charge or direct that the charge be amended or a new one framed, but throughout the proceedings there was no amendment made by the prosecution as regards Section 390(a) of the said Criminal Code Law under which the Appellant was charged and tried.
Learned counsel for the Appellant went on to submit that, the trial court admitted that Section 390(a) of the Criminal Code Law does not exist but held that it was a typographical error, and thus revealed an element of bias on the side of the learned trial judge. That the learned trial judge is to act as an umpire but drew himself into the arena by setting out reasons which did not emanate from the prosecution for charging the Appellant under a wrong or non-existing law. That it is the law that, when an accused is charged under a wrong or non-existing law, it is fatal to the case of the prosecution, and when it is raised, it is a matter of law and not technicality and therefore the court should discharge and acquit the accused person. The cases of C.O.P V LAYINKA AKPATA (1967) ALL N.L.R. P.249 at P.255 and HASSAN SHELLABIA & ANOR V REX 2 WACA. P.363 at P.366 were cited in support. Learned counsel then submitted that, since the accused was charged and tried by the court under Section 390(a) of the Criminal Code which is a non-existing law, the Court cannot be heard to convict the Appellant pursuant to Section 390 of the Criminal Code Law, as to do so will negate Section 151 (3) of the Criminal Procedure Law. That, since the issue of charging the Appellant under a wrong or non-existing law is basically an issue of law, it can be raised at anytime even for the first time on appeal. We were then urged to allow the appeal on this ground.
The response of the learned D.P.P, Ekiti State for the Respondent is that, the Appellant was charged under Section 390(9) of the Criminal Code Law, Laws of Ondo State, 1978 as applicable to Ekiti State. That the Respondent admitted the typographical error in the print out in which the Sub-Section was printed as (a) instead of (9). It was contended by learned D.P.P for the Respondent that the Appellant was charged and did plead not guilty to the charge of stealing when the particulars of the offence were clearly read to him and therefore knew that he was facing a charge of stealing. That he was represented by counsel and therefore was not misled by the error he now complains of. The case of F.R.N V IFEGWU (2003) 15 N.W.L.R (PT.843) P.113 at P.215 was cited in support. It was then submitted that, section 390 of the said Criminal Code Law creates the offence of stealing while the relevant Sub-Sections provide for the punishment depending on the “thing” allegedly stolen. That what the Appellant complains of is nothing but an error in the information sheet which can be cured by Section 166 of the Criminal Procedure Laws, Cap.31, Volume II, Laws of Ondo State of Nigeria, 1978 as applicable to Ekiti State. That in the instant case, the Appellant knew that he was standing trial for the offence of stealing and actually participated in the trial.
It is further submitted for the Respondent that, the Appellant raised the objection too late, as it is trite law that any objection to a charge for any formal defect on the face thereof shall be taken immediately after the charge has been read over to the accused and not later. Section 167 of the Criminal Procedure Law (Supra) was relied on. The learned D.P.P then submitted that the error is not grievous enough as to vitiate the trial in which the Appellant duly and actively participated and therefore no miscarriage of justice has been occasioned by the error. We were then urged to resolve this issue in favour of the Respondent.
I have carefully perused the Reply Brief filed by the Appellant. I discovered that the said Reply Brief is substantially a repetition of the arguments as canvassed by the Appellant in the main brief. That is not the purpose of a Reply Brief as envisioned by Order 6 rule 5 of the Court of Appeal Rules, 2007.
A Reply Brief within the con of the rules of this Court cited above, shall only deal with points of law arising from the Respondent’s Brief. It is not meant to give an Appellant a second bite at the cherry by re-writing his argument contained in the main brief of argument he had already presented to the court.
In that respect, the Appellant’s Reply Brief having contravened Order 6 rule 5 of the Court of Appeal Rules, 2007 is hereby discountenanced. See also OKPALA & ANOR V IBEME & ORS (1989) 2 N.W.L.R (PT.102) p.208: EZEKWESILI V. ONWUAGBU (1998) 3 N.W.L.R (PT.541) P.217 And CHUKWUOGOR V A.G: CROSS RIVERS STATE (1999) 1 NWLR (PT.534) P.375.
Now, I begin a resolution of this issue by reference to Section 151 (3) of the Criminal Procedure law (Supra) cited by counsel. The Sub- Section provides as follows:
“151 (3) The written law and the section of the written law against which the offence is said to have been committed shall be set out in the charge”
I do not think that the provision of Section 151 (3) of the Criminal Code Law cited above poses any difficulty, ambiguity or difficulty of interpretation. The clear meaning of the provision is that the information or charge against an accused person shall state the statute or Law, and the Section of the statute or Law under which the information or charge is being laid. See also OGBOMOR V THE STATE (1985) 2 S.C. P.289 at P.311.
In the instant case, the complaint of the Appellant is that he was charged under Section 390(a) of the Criminal Code Law and that there is no Section 390(a) in the Criminal Code Law. In other words, that since he was charged under a wrong or non-existing law, the charge against him is defective and therefore the trial court ought not to have convicted him thereon. That issue was raised before the trial court during final addresses of counsel. I pause here to state that the Appellant had also been charged for stealing contrary to Section 390(9) of the Criminal Code. It was the 2nd count in the charge, but he was acquitted thereon due to want of evidence. It is therefore in respect of the 1st count on the charge sheet that he was convicted, and which is now the subject of this appeal. The said count one (1) on the charge sheet reads as follows:
“1. COUNT ONE:
Stealing contrary to Section 390(a) of the Criminal code Laws, cap.30, volume II, Laws of Ondo State of Nigeria applicable in Ekiti State.
Particulars of this count one (1) show that the accused in November, 1997 stole ten (10) metric tons of graded cocoa valued at about N1,180,00:00 property of Co-operative Multipurpose Union, Ikole-Ekiti”
The learned trial judge after reproducing Section 390 and Sub-Section (9) of the said Section 390 of the Criminal Code found as follows at page 69 of the record of appeal:
“However, in my humble view, it is section 390 itself that creates the offence of stealing while the relevant subsections provide for terms of punishment depending on which “thing” the accused has stolen.
Sub-sections 1 – 11 of the Section 390 only enumerates the various items or values of goods that are capable of being stolen and the punishment provided for, depending on the value of the items and in some cases the terms of the items (sic) of imprisonment may be higher than provided for by Section 390 itself that creates the offence and the punishment for it.”
The learned trial judge then held at page 73 of the record of appeal as follows:
“In all there (sic) instances, I am persuaded that what was intended was Sub-Section 9 and not Sub-Section (a) of Section 390 which in any case does not exist. I cannot turn my face to the other side since one of the errors was properly corrected to read Section 390(a) and the other charged to Section 390. Holding otherwise will surely lead to injustice to one of the parties.”
He then concluded that from the efforts made by the prosecution to effect some corrections on the errors showed that the prosecution intended to charge the case under Section 390(9) of the Criminal Code Law.
My Lords, I have perused the whole record of appeal and I am of the view that the findings of the learned trial judge as stated above is on sound footing. First of all, the charge sheet as contained on pages 2 and 3 which was initially filed against the Appellant and one Segun Fatoke alleged offences under Section 390(9) of the Criminal Code Law. However, it is on record that, that charge was withdrawn and the Appellant charged alone on two counts of stealing. While the 2nd count was corrected with a biro to read section 390(9), the 1st count was not so corrected. I therefore agree totally with the learned trial judge that the circumstances of this case show that the prosecution intended to charge the Appellant for stealing contrary to Section 390(9) of the Criminal Code and therefore Section 390(a) was typed in error.
In any case, the law is that, once an offence described in a charge is one created by a statute named in the charge and that statute is in force in that territory wherein the offence was alleged to have been committed, it will be immaterial to aver that an error has been committed in stating the written law or the particular section of the law, unless it can be shown that such error has in fact prejudiced or misled the accused. Thus, Karibi-Whyte, J.S.C in the case of OGBOMOR V THE STATE (supra) at PP.309-310 stated the law as follows:
“A combined reading of the provisions of section 33(8) and section 33(12) of the constitution 1979 suggests that whereas no person can be tried and convicted of an offence which did not exist at the time of its commission, or which is not contained in an existing law, there is no constitutional or other prohibition against trial and conviction of a person for an offence which is known to the law and is in existence at the time of its commission but the relevant statute of which has been incorrectly stated. Thus, it is clear that a mere mis-description of the law under which a charge has been brought, does not necessarily render the offence one not known to the law at the time of its commission. Hence, as long as the offence charged discloses an offence in a written law and such law is in existence at the time of the commission or omission of the act alleged in the charge was done, the information is valid, and is merely a defective if there is any mis-description of the law under which the charge was laid.”
It therefore follows that where the defect in the charge is merely an error in stating the exact title or Section of the statute or enactment allegedly contravened by the accused, the defect is immaterial and the trial and conviction will not be vitiated. It is where an accused is charged with an offence and the statute which he is alleged to have contravened is not stated in the charge sheet that the defect will be considered as material and thus vitiating the trial. Thus, in the case of OGBOMOR V. THE STATE (supra) cited above, the accused was charged for armed robbery contrary to the Robbery and Firearms Act, 1970. On appeal against his conviction, it was contended that the accused was charged for an offence unknown to law because there is no statute known as the Robbery and Firearms Act, 1970. The Supreme Court in an unanimous decision rejected this assertion and held that the offence of armed robbery is known to law as it is contained in both the Criminal Code and the Robbery and Firearms (Special Provisions) Act, 1970 and therefore the defect was only a mis-description of the title of the statute under which the accused was charged. The defect was also held to be trivial and immaterial, as the accused knew under which statute the charge was being tried and was therefore not prejudiced by the defect in the charge. That the words “Special Provisions” in brackets was only wrongly omitted. See also IFEGWU V F.R.N (2001) 13 NWLR (PT.729) P.103 at PP.131 – 132 Per Aderemi, J.C.A (as he then was); OBAKPOLOR V. STATE (1991) 1 N.W.L.R (PT.165) at P.113: MANGAI V STATE (1993) 3 N.W.L.R (PT.279) P.108 and ESSIEN V C.O.P (1996) 5 N.W.L.R (PT.449) P.489.
In the instant case, the Appellant was charged for stealing contrary to Section 390(a) of the Criminal Code Law, Cap.30, Volume II Laws of Ondo State of Nigeria, 1978 as applicable to Ekiti State. It is not the case of the Appellant that the Criminal Code Law (Supra) does not exist or that even if it exists, it is not applicable in Ekiti State. It is also not his case that the offence of stealing is not known to the said Criminal Code Law. Indeed, I have found that the offence of stealing exists and is enacted as Sections 383 and 390 of the Criminal Code Law (Supra) with various Subsections ranging from 1 – 11 in the said Criminal Code Law.
It is obvious therefore that charging the Appellant under Section 390(a) is a mere mis-description of the Section of the statute or law under which the Appellant was said to have contravened and thus charged. At the trial, the Appellant was represented by one Azeez Mustapha Agbaje of counsel when the charge was substituted. The charge was subsequently read to the Appellant and his plea taken, wherein he pleaded not guilty. Even when Mr. Benjamin Onyeabo of counsel took over his defence from Mr. Agbaje this issue was never raised and it was never raised throughout the trial. It was only raised in the final address of the counsel. It is therefore clear that throughout the trial the appellant and his counsel knew or were aware that the Appellant was being tried for stealing ten (10) tons of graded Cocoa and that his act is a contravention of the Criminal Code. In fact, the Appellant had a duty to show or demonstrate to this court, nay the lower court how the mis-description of the Section of the law charging him with stealing prejudiced him or occasioned any miscarriage of justice to him. It was not enough for him to merely aver or submit that he was prejudiced or suffered a miscarriage of justice. I am therefore in agreement with the learned trial judge that the error or defect in stating the Section of the law under which the Appellant was charged is not material as it is abundantly clear that he knew the statute and I dare say, the Section of the law under which he was being tried. He was therefore not prejudiced by the defect in the charge.
Furthermore, the law as stipulated under Section 167 of the Criminal Procedure Act is that, any objection to a defect in a charge should be made immediately after the charge has been read over to the accused and not later. For the avoidance of doubt, Section 167 of the Criminal Procedure Act provides that:
“Any objection to a charge for any formal defect on the face thereof shall be taken immediately after the charge has been read over to the accused and not later.”
This provision is clear and unambiguous and need no exercise in statutory construction on my part as to its meaning. It means what it says, that an objection for any formal defect in a charge shall be taken immediately it is read over to the accused and not later. The only exception may be when the error or defect has the effect of depriving the court of jurisdiction. See OBAKPOLOR V STATE (SUPRA at PP.124-125. This is more so, as in the instant case, where the accused is represented by counsel. He cannot use it as a trump card to be used later in the proceedings. See ESSIEN V C.O.P (Supra) at P.500 and STATE V AKPABIO (1993) 4 N.W.L.R (PT.286) P.204.
The Appellant in the instant case, did not raise any objection as to the error or defect in the charge when it was read over to him. He was ably represented by counsel who is presumed to know the law, and did plead unequivocally to the charge. Here again, I agree with the learned trial judge that the objection came too late. This issue is accordingly resolved in favour of the Respondent.
I now move to issue number three (3) as formulated by the Appellant and which is similar to the Respondent’s issue number two (2).
That issue is:
Whether by the evidence adduced before the trial court, has the offence of stealing against the Appellant been proved by the prosecution more so that the evidence of the Appellant in defence of the charge was not challenged or controverted by the prosecution by way of cross-examination.”
On this issue, learned counsel for the Appellant submitted that the duty to prove a criminal case of stealing against the Appellant is throughout on the prosecution and it must be proved beyond reasonable doubt. He relied on Section 138 – 140 of the Evidence Act and the cases of EJIKE V EZENGWU (1982) 4 N.W.L.R (PT.236) P.462: ADEPETU V STATE (1998) 7 S.C.N.J. P.63 and SHEKETE V N.A.F (2000) F.W.L.R (PT.29) P.2438. It was then contended by learned counsel that the onus placed on the prosecution by law has not been discharged by the prosecution in this case, the evidence given by P.W.1 – 4 does not show that the Appellant stole the ten tons of Cocoa. That all the evidence show is that the accused sold the Cocoa to Black Arrow Ventures which the accused did in the course of his official duty as the Manager of the Egbeoba Multipurpose Co-operative Union, Ikole-Ekiti. That the Appellant maintained that it was when the Co-operative Cocoa Union, Akure refused to take delivery because of the fall in the price of Cocoa that he sold the Cocoa to Black Arrow Ventures, Lagos on the instruction of the then President of Egbeoba Multipurpose Co-operative Union, Mr. Aroso. He then contended that no representative of the Co-operative Cocoa Produce, Akure was called to debunk the evidence of the Appellant. It was therefore submitted that, failure to call the representative of the Co-operative Cocoa Produce, Akure to give evidence amount to concealment of evidence on the part of the prosecution. He cited Section 149(d) of the Evidence Act and the case of NWEKE ONAH V STATE (1985) 3 N.W.L.R (PT.12) P.236 in support. That exhibits A, B1, B2, C1 and C2 tendered by the prosecution did not show that the Appellant stole the Cocoa.
It is the further submission of learned counsel for the Appellant that, there is nowhere the prosecution asserted that the Appellant converted the cocoa to his own use or benefited from the sale to Black Arrow Ventures, Lagos. That throughout the proceedings, no iota of evidence was given to show that Black Arrow Ventures paid for the Cocoa sold to them which the Appellant converted to his own use.
Learned counsel for the Appellant went on to contend that, the prosecution did not cross-examine the Appellant, so his testimony on oath remained unchallenged. It was then submitted that, it is the law that when evidence of a party is not contradicted or controverted by an adversary, the evidence remain as true, and therefore a doubt has been created in the evidence of the prosecution witnesses as to whether or not the Appellant actually committed the offence. That this doubt should be resolved in favour of the Appellant. The cases of JAMES IKHANE V. C.O.P (1977) 6 S.C. P.119 at P.123: OGHOR V THE STATE (1990) 3 NWLR (PT.139) P.484 at P.494 and AHMED V STATE (1999) 5 S.C.N.J. P.223 at PP.241 – 242 were cited in support. That the representative of the Black Arrow Ventures, Lagos, one Segun Fatoki, was initially charged with the Appellant, but the prosecution let him free from being prosecuted, when it became clear that he will make it clear to the court that the cocoa was sold to them and that no payment was made. Learned counsel then submitted that there is no evidence on the record to support the offence of stealing against the Appellant for which he was convicted. We were then urged to allow the appeal on this ground.
Learned counsel for the Respondent conceded that by virtue of Section 138(1) of the Evidence Act, the burden is on the prosecution to prove the offence charged against the Appellant beyond reasonable doubt and that they can discharge this burden by adducing cogent, credible and compelling evidence. That the elements of the offence of stealing are:
(i) Taking
(ii) Converting
(iii) Fraudulent intention; and
that these elements of the offence can be proved by either, direct evidence of eye witnesses or circumstantial evidence or by the confessional statement of the accused or by a combination of those elements. The case of EMEKA V STATE (2002) 14 NWLR (PT.734) P.666 at P.683 was cited in support. It was then contended that the prosecution called four (4) witnesses who gave credible and uncontroverted evidence showing clearly that the Appellant intentionally and unlawully diverted ten(1) tons of cocoa meant for Cocoa Products Co-operative, Akure to somewhere else without the knowledge of the members of Egbeoba Co-operative Multipurpose Union, Ikole.
Learned counsel for the Respondent further referred to the testimonies of the P.W.1 at pages 21 – 22, P.W.2 at page 31 and P.W.4 at page 40 of the Record of Appeal, and the definition of stealing under Section 383(i) of the Criminal Code Law, Laws of Ondo State, 1978 as applicable to Ekiti State, to further submit that, the only inference to be drawn from the circumstances of this case is that, the Appellant fraudulently diverted the Cocoa meant for Cocoa Product Co-operative, Akure without the knowledge of the members of Egbeoba Multipurpose Co-operative Union.
On the issue of non-calling of the officials of the Cocoa Products Union, Akure, it is the submission of the Respondent that it does not amount to withholding evidence, as the prosecution is not bound to call all witnesses, but only those that are material in proof of its case. We were then urged to resolve this issue in favour of the Respondent.
I had earlier held that the Reply Brief of the Appellant does not comply with the Rules as to Reply Briefs. I need not go into that here. It suffices to state that we were urged in the said Reply Brief to disregard the submissions of the Respondents and to allow the appeal.
The crux of the Appellant’s contention on this issue is that the prosecution have not been able by the evidence adduced at the trial to prove that he stole the ten tons of graded cocoa. In other words, that the charge of stealing the ten tons of cocoa against him has not been proved beyond reasonable doubt.
It is the law that where an Appellant asserts on appeal that the prosecution failed to prove his guilt beyond reasonable doubt before he was convicted, he has the onus to establish how it is so. It is then that the appellate court will examine his assertion against the evidence leading to the conviction of the Appellant as shown on the record. Thus, where the evidence on the record shows that the trial court properly scrutinized, tested and accepted the evidence adduced by the prosecution and conclusively determines that the evidence adduced proves the commission of the crime alleged against the appellant, it will then be for the appellant, to rebut the presumption that he committed the crime.see IGABELE V STATE (2006) 6 N.W.L.R (PT.975) P.100 and ADEKUNLE V. STATE (2006) 14 N.W.L.R (PT.1000) P.717.
Based on the background of the above stated principles, it is also the law that the findings on primary facts in a case are matters exclusively within the province of the trial court. Accordingly, there is a presumption that the findings of fact arrived at by a trial court are right and correct until the contrary is shown. The onus is on a party who challenges such findings of fact made by a trial court to prove the contrary. In that respect, where an appellant challenges the findings of fact made by a trial court, he has to demonstrate before the appellate court how those findings are wrong or incorrect. This is because, an appellate court such as this, will only interfere with such findings of the trial court, where it is found that the trial court failed to either properly evaluate the evidence led before it, or where such findings are shown to be perverse. This court will also interfere where it is found that the trial court drew wrong inferences from the accepted facts or applied the wrong principles to such facts. See ATTAH V STATE (2009) 15 NWLR (PT.1164) P.284 at P.304: EBLA CONSTRUCTION LTD. V CONSTAIN (WEST AFRICA) PLC (2011) 6 N.W.L.R (PT.1242) P.110: OLODO V. UKPOLO (2010) 18 N.W.L.R . (PT.1225)P.653 ; UNITY BANK PLC V. OLODO (2011) W.R.N. P.159.
Before I proceed to a consideration of whether or not the Appellant has been able to debunk the findings of the trial court as to his guilt in the commission of the offence of stealing for which he was convicted, I consider it incumbent and therefore useful to remind myself that, in a criminal trial, the burden is on the prosecution to prove the guilt of the accused in the commission of the crime beyond reasonable doubt. That burden remains throughout on the prosecution and never shifts (except in a very special circumstances where a statute may require an accuse to prove certain facts) and it never shifts. This is because an accused person is presumed to be innocent until he is proven guilty. It is a fundamental right guaranteed to an accused person by Section 36(5) of the 1999 Constitution of the Federal Republic of Nigeria. Thus, if at the end of the trial and on the totality of the evidence adduced thereat, a reasonable doubt about the guilt of the accused is created, the prosecution would have failed to discharge the onus cast on them by law to prove his guilt beyond reasonable doubt and in that instance, the accused will be entitled to an acquittal. In other words, if upon evaluation of the totality of the evidence adduced at the trial, there is a reasonable doubt about the guilt of the accused person, the court has it as a duty to resolve that doubt in favour of the accused. See EDOH V. STATE (2004) 5 NWLR (PT.865) P.17: IGABELE V STATE (SUPRA), ONUBOGU & ANOR V THE STATE (1974) 9 S.C. P.1. NJOKU V STATE (1993) 6 N.W.L.R (PT.299) P.272 and ODAH V AHMADU (1999) 5 N.W.L.R (PT.601) P.22 at P.29. In discharging this burden, the prosecution must prove all the essential elements or ingredients of the offence charged. If one ingredient remains unproved, the accused will be entitled to an acquittal. See ALOR V STATE (1997) 4 N.W.L.R (PT.501) P.511.
ONYEACHIMBA V. STATE (1998) 8 NWLR (PT.563) P.587 at P.594. BABUGA V STATE (1996) 7 N.W.L.R (PT.460) P.279 and ONUBOGU V STATE (SUPRA).
It should however be noted that proof beyond reasonable doubt does not mean proof beyond all shadow of doubt. It only means that if the evidence is strong against a man, as to leave only a remote probability in his favour, which can be dismissed with the sentence, “of course it is possible but not in the least probable”, the case is proved beyond reasonable doubt. See MILLER V MINISTER OF PENSIONS (1947) 2 ALL E. R. P.372: AKALEZI V. STATE (1993) 2 NWLR (PT.273) P.1 at P.13: BUJE V. THE STATE (1991) 4 NWLR (PT.185) P.287 and OTEKI V A.G: BENDEL STATE (1986) 2 NWLR (PT.24) P.648.
I now proceed to consider whether the learned trial judge rightly evaluated the evidence adduced before him and arrived at the correct decision before convicting the Appellant on the offence of stealing charged.
It will also be helpful to state that the offence of stealing is created by Section 383(1 ) of the Criminal Code Law (Supra). The said Section 383(1) of the Criminal Code (Supra) provides that:
“383:
(1) A person who fraudulently takes anything capable of being stolen, or fraudulently converts to his own use or to the use of any other person anything capable of being stolen, is said to steal that thing.
(2) A person who takes or converts anything capable of being stolen is said to do so fraudulently if he does so with any of the following intents.”
Those circumstances which amount to the intent are listed in subparagraphs (a), (b), (c), (d) and (e) to sub-section 2 of Section 383. The ingredient of stealing were therefore clearly explained by the erudite jurist, Niki Tobi, J.S.C in the case of ONWUDIWE V F.R.N (2006) 10 N.W.L.R (PT.988) P.382 at P.429 PARAS E – F. Therein, my Lord stated as follows:
“Although the disjunctive conjunction “or” is not used at the end of Section 383(2), it is the meaning of the sub-section that an offence of stealing is committed if any of the conducts of the sub-items of section 383(2) is committed. In other words, it is not the meaning of Section 383(2) that all the sub-items in Section 383 (2) must be present before an offence of stealing is committed. This is clear from the following opening words of Section 383(2): “if he does so with any of the following intents.”
As it is, the offence can only be said to be committed if the taking of the thing capable of being stolen is done fraudulently.”
In the con of the above cited decision of the Supreme Court, the offence of stealing is said to have been committed, where a person fraudulently takes or converts to his own use or the use of any other person, any property capable of being stolen, does so in any of thecircumstances enumerated under Section 383(2) of the Criminal Code Laws (Supra). Thus, for the offence of stealing to be established or proved, the thing alleged stolen must be capable of being stolen and the taking must be fraudulent. There must also be the animus furandi. The taking must be with an intention to deprive the owner of his permanent ownership of the thing or property. It therefore means that, in a charge of stealing, proof that the thing or property allegedly stolen belong to some person is an essential element of the offence. The fraudulent intent therefore lies in the taking or conversion of the property or thing without claim of right made in good faith and with knowledge that the thing taken or converted is the property of another. See CLARK & ANOR V THE STATE (1986) 4 NWL.R (PT.34) P.381: BABALOLA & ORS V THE STATE (1989) 4 N.W.L.R (PT.115) P.264: YONGO & ANOR V C.O.P (1990) 5 N.W.L.R (PT.148) P.103 and ALAKE & ANOR V THE STATE (1991) 7 N.W.L.R (PT.205) P.567. See also ONIMISI UKANA (Alias Jaguda) V G.O.P. BENUE STATE (1995) 9 N.W.L.R (PT.416) P.705 and OKOROJI V. THE STATE (2005) 1 N.C.C. P.279 at P.297.
It is clear therefore that what is proscribed by the law is the act of dealing with property or things which though lawfully comes into the possession of the person accused but deals with it in a manner inconsistent with the right of the true owner. Once it is established that there is an intention on the part of the person accused to deny the owner’s right or to assert a right which is inconsistent with that of the owner and thereby permanently depriving the owner of the ownership of the property or thing the offence of stealing is complete. The act of the accused must however be accompanied by the necessary intent as prescribed under Section 383(2) of the Criminal code Law. Furthermore, the facts of stealing may be established by direct evidence or by evidence of facts from which reasonable inference can be drawn that the offence has been committed. One of such overt acts may arise in the sale of the property or transfer of it to another person.
The gist of the prosecution’s case against the Appellant before the trial court is that, the Appellant was the Manager of Egbeoba Cooperative Multipurpose Union, lkole-Ekiti which deals in collecting money to purchase and supply cocoa to certain organizations that provide it with money. That the Union collected the sum of N1,180,000:00 from the Co-operative Cocoa Product, Akure as cost of ten tons of graded cocoa and duly purchased the product. The Appellant who was the Manager of the Union, was mandated to convey and deliver same to the Cooperative at Akure failed to deliver same but diverted it for his own use without the knowledge of any member of Egbeoba Co-operative Union. That the Appellant was arrested and he pleaded for time to refund the cost of the cocoa produce out of which he made a payment of One Hundred and Fifty Thousand Naira (N150,000:00) and gave a written undertaking to refund the balance. During the hearing, four (4) witnesses were called by the prosecution. I now refer to portions of the testimonies of those witnesses as are germaine to the resolution of this issue. The P.W.1 stated as follows:
It happened in October, 1997 when my boss, Mr. J.B Ayeni, the then Manager took away the Union’s cocoa. The estimated cost of the cocoa was N1,180,000:00. The amount was paid by cooperative cocoa product, Akure as the cost of ten (10) tons of cocoa that he took away at the rate of N118, 000:00 per ton…. But the accused person who took away the ten tons of cocoa for delivery at Akure did not deliver them to the Company and the Staff of the Company came to complain about the non-delivery of the cocoa.
On the 15th December, 1997, the President, the Treasurer and Vice President of the Union came to our office. They asked for the accused who was then not around. I was sent to Akure to find out what happened. It was there they showed me their files and their ledger which showed that he had not supplied any cocoa since 31st October, 1997. I then returned home to report to my boss, the President of the Union……
The Management also reported the absence of the accused to the Police at Ado-Ekiti. In January, 1998 when the Manager still did not show up the case of the missing cocoa was reported to the Police….
When the accused person showed up, he admitted stealing the cocoa and he later paid N150,000:00 out of the money before the case was brought to court in 1998.”
The P.W.2 who is the treasurer of the Egbeoba Co-operative Multipurpose Union stated thus:-
“On 28th October, 1997, Pa Amoran, Chairman of the Co-operative Society, Bayo Ayeni the Manager and myself went to Akure at the cocoa Board. We were given a cheque of N1,080,000:00 (One Million and Eighty Thousand) to help them purchase cocoa. The three of us went to Ayedun Co-operative Bank, we cashed the cheque, we then came to Ikole, and shared the money among the Clerks to help us buy cocoa. The cocoa was purchased. The accused then called examiners to grade the cocoa, when they graded the cocoa we then asked the accused to deliver same to those who gave us the money at Akure, just as he was doing before.
It was after two weeks that the Cocoa Product Limited complained that they did not see the cocoa. The cocoa added up to ten tons.
We then sent the Book-Keeper, Mr. Adeyemi to Akure, we were stunned and so we went to report at the Police at Ikole.”
The P.W.3 on his part testified as follows:-
“We purchased the cocoa, gaged (sic) it and asked the Manager to deliver the cocoa to Cocoa Produce Akure. He delivered the cocoa then. Two weeks after that, we were given ten (10) tons of cocoa amounting to N1,180,000:00.
The Cocoa was gaged (sic) and we asked the accused to deliver same at Akure, when we could not get the next allocation, we then asked our Book-keepers to find out what happened at Akure.
It was then that we learnt that the cocoa was not delivered. We then went to look for him at his residence at Ikole, but did not find him there.
We then went to report at the Police Station that our Manager who (sic) asked to deliver cocoa at
Cocoa Products at Akure was nowhere to be found….
When the two suretees were arrested then they fished out the accused…
Later the Police sent to us saying that the accused had paid N150,000:00 out of the total sum of N1,180, 000:00. We collected the said sum of N150, 000:00.”
This witness agreed that the prices of cocoa do fluctuate but that the Appellant did not have authority to look for an alternative buyer even if the price of cocoa falls. That he had to deliver to those who had given the Union money. The P.W.4, one A.S.P Moses Okugo investigated the case. He told the court in the course of the investigation, he found that the Appellant had diverted the cocoa meant for Co-operative Cocoa Products, Akure to unknown destination. That the Appellant later realized the consequence of his action and made several promises to refund the cost of the cocoa.
The Appellant testified in his defence but called no other witness. He testified that he sold the cocoa to a representative of Black Arrow Ventures who had been a customer and willing to buy at a profit margin. That Black Arrow Ventures did not pay fully for the ten (10) tons but paid only N150,000:00. He gave the name of the representative of the said Black Arrow Ventures as Mr. Segun Fatoki who was initially arraigned with the Appellant at the Magistrate Court, Ikole but was dropped when the matter was transferred to the High Court. In a nutshell, the Appellant denied stealing the ten tons of cocoa but only sold the cocoa to Black Arrow when the cocoa products Ltd refused to take delivery due to drop in the agreed price and that it was sold with the approval of the President of the Egbeoba Co-operative Multipurpose Union.
On the evidence adduced before the trial court, the learned trial judge disbelieved the testimony of the Appellant and held that the prosecution established a case of stealing against the Appellant beyond reasonable doubt. He held at page 84 of the record of appeal as follows:
“In all I prefer the evidence of the prosecution to that of the accused for the various reasons already adduced. I hold that the prosecution has proved the case against this accused person beyond reasonable doubt. The accused is hereby found guilty as charged.”
The Appellant now challenges this finding of the learned trial judge on the grounds firstly that, all the evidence of P.W. 1 – 4 show is that the Appellant sold the cocoa to Black Arrow Ventures, and which he did in the course of his official duty.
The finding of the learned trial judge on this issue is at pages 79 – 82 of the record of appeal. I have carefully scrutinized the testimony of the witnesses for the Respondents and that of the Appellant. I am of the view that those findings of the learned trial judge are solidly and firmly supported by the evidence adduced before him. The learned trial judge in my view drew the right inferences and rightly came to the conclusion that the Appellant could not have intended the court to believe his stories for the reasons contained in the judgment.
It is also the contention of the Appellant that the learned trial judge failed to consider that no representative of the Co-operative Cocoa Produce, Akure was called to debunk the evidence of the Appellant and that this failure amounts to concealment of evidence by the prosecution. He contended likewise in respect of Mr. Segun Fatoki who was earlier charged with him at the Magistrate Court, Ikole.
It is pertinent to point out that the prosecution is never under a duty to call all available witnesses to prove its case in a criminal trial. However, the law is that the prosecution is bound to call a witness whose evidence will settle a vital issue one way or the other. A vital witness in that regard, is one who knows something significant about a matter and ought therefore to be called by the prosecution. It is only where the prosecution fail to call such a vital witness that a strong presumption may arise that, his evidence if called would be unfavourable to the prosecution. See EDOHO V STATE (2004) 5 N.W.L.R (PT. 865) P.17;OLABODE V. STATE (2009) 11 NWLR (PT.1152) P.254 at P.271. ARCHIBONG V STATE (2004) 1 NWLR (PT.855) P.488 and STATE V AZEEZ & ORS (2008) 14 NWLR (PT.1108) P.439. Section 149(d) of the Evidence Act is therefore not concerned with failure to call a particular witness. It only applies where a party has withheld evidence. Thus where a party has called other evidence on an issue, failure to call a particular witness to give evidence on that piece of evidence will not raise the presumption. See AKINYEMI V THE STATE (19991 6 N.W.L.R (PT.607) P.449 at P.461: EGBEYOM V THE STATE (2000) 4 N.W.L.R (PT.654) P.559 at P.579. See also N.A.F V OBIOSA (2003) 4 N.W.L.R (PT.810) P.233.
It follows therefore that, no law imposes an obligation on the prosecution to call a host of witnesses to prove his case. This is because, it is the sole responsibility of the prosecution to prove its case by calling all material witnesses, beyond reasonable doubt as the burden of prove cast on the prosecution must be satisfied by calling credible or material witnesses. In calling such witnesses, the prosecution has a discretion in the matter. Accordingly, once the prosecution has been able to discharge the burden cast on it by law, it does not matter that a particular witness was not called to give evidence.
In any case, where an accused person discovers that the evidence of a particular witness is very vital or essential to his defence, it is for the accused to call him. He should not sit tight and wait on the prosecution to call such witness since the prosecution is not expected to also conduct the defence of the case for the accused. See N.A.F V OBIOSA (SUPRA) at PP.285 – 286: ATTAH V STATE (2009) 15 N.W.L.R (PT.1164) P.284.
In the instant case, if the Appellant perceived that the evidence of the officials of the Co-operative Cocoa Product, Akure and Mr. Segun Fatoki would be helpful to his defence or exculpate him from Criminal responsibility, he was at liberty to call them. That is more so as the Appellant was represented by counsel. There is no evidence on the record to show that he desired to call them but was denied the benefit of their testimony by the prosecution. He therefore, cannot now complain that the Respondent withheld evidence.
It is also the contention of the Appellant that failure of the prosecution to cross-examine him on his testimony, has created doubt as to whether or not he committed the offence charged.
It is the law that where a witness called by a party to the proceedings is not crossexamined by the adversary, the import is that, the party who ought to have cross-examined him accepts the evidence of the witness as true and correct. See AGBO V STATE (2006) 6 N.W.L.R (PT.975) P.545. That may well be so, but the law is that the duty to evaluate the evidence led at the trial and the ascription of probative value to such evidence lies with the trial court. Thus where the testimony of a party or witness to a proceeding is unchallenged or contradicted because such a witness was never cross-examined by his adversary, the trial court still has a duty to carefully evaluate it, ascribe probative value to it and be fully satisfied that the evidence is credible and sustain the charge or defence as the case may be. In doing that, the trial court will consider the totality of the evidence led before it. It is after performing that duty that the court will come to a conclusion as to whether or not the case was proved beyond reasonable doubt. In that respect, the fact that the prosecution failed to cross-examine on the testimony of an accused, will not ipso facto lead to his acquittal. That testimony must be scrutinized, evaluated and analysed by the trial court. It is only when such testimony of the accused is found to have probative value that a doubt would be said to have been created in the testimony of the prosecution as to lead to his acquittal. See GBADAMOSI V TOLANI (2011) 5 N.W.L.R (PT.1240) P.352 and OGIDI V. STATE (2005) 1 N.C.C. P.163.
It is clear from the record of this appeal that the learned trial judge painstakingly performed that duty of evaluating the totality of the evidence adduced at the trial and came to the irristible conclusion that the Appellant committed the offence of stealing for which he was charged and tried. I had held earlier when resolving this issue, that I do not see anything perverse in the findings of the learned trial judge. The findings of the learned trial judge, in my view, are on sound footing and was done in the proper exercise of his judicial duty. I see no reason to interfere with those findings. Consequently, I resolve this issue in favour of the Respondent.
Now, the third (3) issue for determination is:
Whether the trial court was right in convicting and sentencing the Appellant to three (3) years imprisonment without an option of a fine when it is clear that the Appellant is a first offender.
Arguing this issue learned counsel for the Appellant contended that it is clear from the record of the proceedings that the Appellant is a first offender. He then submitted that in a situation such as this, where the accused is a first offender, the trial court has every power or discretion to give an option of fine in lieu of imprisonment. That the discretion of the trial court must be exercised judicially and judiciously. It further submitted that, since the Appellant did not benefit from the commission of the offence, the trial court ought to have given him an option of fine so as to reform him and deter others from committing similar offence. That the sentencing of the Appellant to three (3) years imprisonment without the option of fine is harsh and excessive. We were then urged to substitute the sentence imposed on the Appellant with that of an option of fine.
The response of learned counsel for the Respondent is that, the trial Judge had the discretionary power to sentence the Appellant to a maximum period of Seven (7) years imprisonment upon conviction. That Section 282(i) of the Criminal Procedure Law relied upon by the Appellant gives the court discretion to impose sentence and that once a trial judge has exercised his discretion judicially and judiciously, an Appellate cannot interfere, even if it could have exercised that discretion differently. The cases of NEPA V OYEKANMI (1992) 4 N.W.L.R (PT.237) P.636 at PP.648 – 649 and CLARK V THE STATE (2007) 5 A.C.L.R 100 at PP.128 – 129 were relied on. That the Appellant has not alleged that the discretion was not judicially and judiciously exercised or that the sentence was manifestly excessive. We were then urged to hold that the sentence imposed on the appellant is proper, and resolve this issue in favour of the Respondent.
It is clear, as shown by the record of appeal that the Appellant was convicted and sentenced for stealing pursuant to Section 390(9) of the Criminal Code Law (Supra). The said Section 390(9) stipulates that:-
“If the thing stolen is of the value of One Thousand Naira or upwards, the offender is liable to imprisonment for Seven years.”
It would appear therefore that sub-section (9) of Section 390 of the Criminal Code Law cited above does not allow any option of fine. A literal interpretation tend to show that the punishment permitted by the Subsection is Seven years. It does not seem to permit of a greater or lesser sentence, nor does it permit of an option of a fine. In the instant case, the learned trial judge upon convicting the Appellant for stealing under Section 390(9) of the Criminal Procedure Code Law, merely sentenced him to three (3) years imprisonment without the option of a fine. As stated earlier, Section 390(9) does not specifically provide for an option of fine where a person is sentenced pursuant to the said sub-section. However, Section 382 (1) of the Criminal Procedure Law, Laws of Ondo State as applicable to Ekiti State, gives the court discretionary powers to impose a fine in lieu of imprisonment where the justice of the case demands. Section 382 (1) of the said Criminal Procedure Law provides that:
“subject to the provisions of this Section, where a court has authority under any written law to impose imprisonment for an offence and has not specific authority to impose a fine for that offence, the court may, in its discretion impose a fine in lieu of imprisonment.”
It would be seen therefore that the power of a court to impose a fine in lieu of imprisonment, where no specific authority is given for doing so under any written law, as in the instant case, is discretionary.
It is trite law that, an Appellate court will be reluctant and loath to interfere with the exercise of a discretion which the law permits a trial court to exercise. An Appellate court will only interfere where a miscarriage of justice has been shown to have been occasioned or where there is an established violation of some principle of law or procedure. It will also interfere where the discretion has been shown to have been wrongly exercised or where the exercise is tainted with manifest illegality or substantial irregularity. That is so because, the discretion is that of the trial court and not that of the appellate court and so the appellate court will not be seen to substitute its discretion for that of the trial court, because it perceives that it would have under the same facts and circumstances exercised its discretion differently. See ARABI V STATE (2001) 5 N.W.L.R (PT.706) P.256: UDEH V F.R.N (2001) 5 N.W.L.R (PT.706) P.312 at P.327 and N.B.C PLC V EZEIFO (2001) 12 N.W.L.R (PT.726) P.11 at P.34. Thus, once the power has been shown to have been judicially and judiciously exercised an appellate court will seldom interfere. The burden is on the person who complains against the exercise of the court’s discretion to demonstrate how the trial court has wrongly exercised the discretion and that the wrong exercise of the discretion has occasioned a miscarriage of justice to him.
As I stated earlier in the course of resolving this issue, the Appellant was tried and convicted under Section 390(9) of the Criminal Code Law. The said Section 390(9) imposes a punishment of Seven years and no provision is made for the option of fine. The trial court however decided to exercise its discretion and imposed a lesser term of imprisonment by awarding the Appellant three years imprisonment without the option of a fine. The learned trial judge, after considering the plea of Mr. Onyeabo of learned counsel for the Appellant in allocotus, felt that it was not right for him to impose a fine in lieu of imprisonment in the circumstances of the case. Certainly, though it is desirable, but the learned trial judge was not bound by any law to give or disclose his reason for the choice he made in imposing the sentence on the Appellant. The only contention of the Appellant is that he is a first offender. I think this contention is misplaced as no law require that a first offender must be treated with leniency. Everything depends on the discretion of the trial judge considering the facts and circumstances of each case. As I said earlier, once the trial court’s discretion has been judiciously exercised, an appellate court such as this will be reluctant to interfere. No credible reason, and I dare say, no reason at all, has been demonstrated before me why I should tamper with the sentence imposed by the learned trial judge, on the Appellant. Accordingly, I refuse to interfere and thus resolve this issue in favour of the Respondent.
Having resolved all the issues in favour of the Respondents, it is patently clear that this appeal has no merit. It therefore fails. This appeal having failed is accordingly dismissed. Consequently, I affirm the conviction and sentence passed on the Appellant D. O. Jegede, J in the judgment delivered at Ikole-Ekiti Judicial Division of the Ekiti State High Court on the 25th day of September, 2007 in case No: HCL/2C/2000
UWANI MUSA ABBA AJI, J.C.A.: I have been privileged to read in draft, the leading judgment of my learned brother H. M. Tsammani, J.C.A. I agree entirely with his Lordship’s reasoning and conclusion that the appeal is devoid of any merit.
The Appellant was charged before the lower court on a two count charge of stealing two metric tons of graded cocoa valued at One Million, One Hundred and Eighty Thousand Naira (N1,180,000:00) the property of Co-operative Multipurpose Union, Ikole-Ekiti, sometimes in November, 1997. In the second count, the Appellant was alleged to have stolen One Million, Two Hundred Thousand Naira (N1,200,000:00) the property of the co-operative Multipurpose union, Ikole-Ekiti.
The Appellant was convicted on the 1st count charge of stealing the ten tons of graded cocoa and sentenced to 3 years imprisonment without an option of fine, but was discharged on the 2nd count of stealing One Million, Two Hundred Thousand Naira (N1, 200,000:00) for want of evidence.
One of the reasons for this appeal was that the charge against him was under a wrong law or a non existing law. That instead of charging the Appellant with stealing contrary to Section 390 (9) of the Criminal Code, he was charged with stealing under Section 390 (a) which is nonexistent, contrary to Section 151(3) of the Criminal Procedure Law, which provides as follows:-
“151
(3) The written law and the Section of the written law against which the offence is to have been committed shall be set out in the charge.”
I just wish to reiterate the fact that while it is the law that no person can be tried and convicted of an offence which did not exist at the time of its commission, or which is not contained in an existing law, however, there is no such prohibition against trial and conviction of a person for an offence which is known to law and it is in existence at the time of its commission but the relevant statute of which has been incorrectly stated.
In other words, a mere mis-description of the law under which a charge has been brought does not necessarily render the offence one not known to law at the time of its commission. Therefore, as long as the offence charged discloses an offence in a written law and such law is in existence at the time of the commission or omission of the act alleged in the charge was done, the information is valid, and is merely defective if there is any mis-description of the law under which the charge was laid. I am fortified in this view by the decision of the Apex Court in the case of OGBOMOR VS THE STATE (1985) 2 S.C. 289.
In the instant appeal, there is no argument that the Criminal Procedure Law does not exist or that even if it exists it is not applicable to Ekiti State. It is also not the case of the Appellant that the offence of stealing is not known to the said Criminal Code Law. Therefore, the finding of the learned trial judge that the defect in the charge is merely an error in stating the exact title or Section of the statute or enactment allegedly contravened by the accused cannot be faulted. The defect in the circumstances is immaterial as it will not vitiate the trial and conviction of the Appellant. It is for this reason and the more detailed reasons in the leading judgment of my learned brother, H. M. Tsammani that I also dismiss this appeal as it is lacking in merit and affirm the judgment of D. O Jegede, J. delivered at Ikole-Ekiti Division of Ekiti State High Court on the 25th day of September, 2007, in Suit No: HCL/2c/2000.
CHIDI NWAOMA UWA, J.C.A.: I read before now the judgment of my learned brother Haruna M. Tsammani, J.C.A. His Lordship has exhaustively resolved the issues raised in this appeal, I agree with him and adopt the reasoning and conclusion as mine in holding that the appeal fails. I also dismiss same, and affirm the judgment of the learned trial judge, D. O. Jegede, J. of Ikole -Ekiti Judicial Division of the Ekiti-State High Court in case No.HCL/2c/2000, delivered on 25th November, 2007.
Appearances
S. A. Longe Esq. for the Appellant (T. Awotile Esq. with him).For Appellant
AND
Mrs. Bola Wale-Awe (D.P.P., Ekiti State) for the Respondent (with Oluwaseun Fasote Esq. Legal Officer, M. O. Justice, Ekiti State).For Respondent
