AKINGBOLA JOHNSON V. FEDERAL REPUBLIC OF NIGERIA
(2011)LCN/4630(CA)
In The Court of Appeal of Nigeria
On Thursday, the 16th day of June, 2011
CA/A/167C/2006
RATIO
RAISING ISSUE SUO MOTU: WHEN DOES A COURT RAISE AN ISSUE SUO MOTU
What is meant by saying a Judge raised an issue suo motu? When a Judge raises an issue on his own motion or raises an issue not in contemplation of the parties, or an issue not before the Court, the Judge is said to have raised the issue suo motu. PER JIMI OLUKAYODE BADE, J.C.A.
RAISING AN ISSUE SUO MOTU: DUTY OF THE COURT TO GIVE OPPORTUNITY TO THE PARTIES OR THEIR COUNSEL TO BE HEARD BEFORE PRONOUNCING ON THE ISSUE RAISED SUO MOTU
The law is well settled that a Court has no jurisdiction to raise an issue suo motu and make out a case for one of the parties and where the Court has taken such step it must give an opportunity to the parties or their Counsel to be heard before pronouncing on the issue so raised. The exception to affording the parties or their Counsel a hearing on issues raised suo motu are where the Judge is expected to take Judicial notice by virtue of the provisions of the Evidence Act. (See Sections 73 and 74 of the Evidence Act). See the following cases:- – Kuti v. Balogun (1991) 1 S. C. page 53; – Iriri v. Enhuzhobara (1991) 2 NWLR Part 173 page 252; – Ugo v. Obiekwe (1989) 1 NWLR Part 99 page 566; – Adeniji v. Adeniji (1972) 4 S.C. page 10. – Ogiamien vs. Ogiamien (1967) NMLR page 247. PER JIMI OLUKAYODE BADE, J.C.A.
EVALUATION OF EVIDENCE: CIRCUMSTANCE UNDER WHICH AN APPELLATE COURT WOULD INTERFERE WITH THE EVALUATION OF EVIDENCE MADE BY A TRIAL COURT
My view above is fortified by the decision of the Supreme Court in the case of:- – Gbadamosi vs. Governor of Oyo State (2006) 13 NWLR Part 997 Page 363 at 374 where it was held among others that:- “the appraisal of oral evidence and the ascription of probative value to such evidence is the primary duty of a trial Court and a Court of Appeal would only interfere with the performance of that exercise if the trial Court had made an imperfect or improper use of the opportunities of hearing and seeing the witnesses or has drawn the wrong conclusion from the accepted or proved facts which those facts do not support or indeed has approached the determination of those facts in a manner which the facts cannot and do not in themselves support.” PER JIMI OLUKAYODE BADE, J.C.A.
EXCLUSION OF RELEVANT EVIDENCE: WHETHER A COURT CAN EXCLUDE RELEVANT EVIDENCE BASED ON HOW SUCH EVIDENCE WAS OBTAINED
The law is well settled that there is no general rule of law in civil as well as in criminal cases that evidence which is relevant is excluded merely by the way in which it has been obtained. This is subject in criminal cases to the discretion of a trial Judge “to set aside the essentials of Justice above the technical rule if the strict application of the later would operate unfairly against the Accused.” This means that the Judge can, where the interests of Justice demand it, exclude evidence which otherwise would be relevant considering the circumstances of its discovery and production. See the case of:- – Sadau & Another vs. State (Supra). PER JIMI OLUKAYODE BADE, J.C.A.
CIRCUMSTANTIAL EVIDENCE: WHAT A CIRCUMSTANTIAL EVIDENCE ENTAILS
That will lead me to the question, what is circumstantial evidence? Circumstantial evidence is evidence of surrounding circumstances which by undesigned co-incidence is capable of proving a proposition with mathematical accuracy. For circumstantial evidence to be in tune with the reality of the matter, it must be strong, cogent and competing as to convince the court that no rational hypothesis other than the inference therefrom can the fact be accounted for. Circumstantial evidence must be compelling and un-equivocal. It must point only at the direction of the accused and no other person and, to be sufficient, must read conclusively and indisputably to the accused’s guilt. See the following cases:- – Obukor v. State (1984) 8 S.C. Page 31; – Esai v. State (1976) 11 S.C. Page 39; – Eze v. State (1976) 1 S.C. page 125; – Omogodo v. State (1981) 5 S.C. page 5; – Peba v. State (1980) 8 – 11 S.C. page 76. PER JIMI OLUKAYODE BADE, J.C.A.
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
JIMI OLUKAYODE BADE Justice of The Court of Appeal of Nigeria
Between
AKINGBOLA JOHNSON Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIA Respondent(s)
JIMI OLUKAYODE BADE, J.C.A. (Delivering the Leading Judgment): This is an appeal against the Judgment of the High Court of Justice of the Federal Capitol Territory, Abuja in Charge No: FCT/ABJ/CR/08/03 Federal Republic of Nigeria vs. Akingbola Johnson delivered on the 15th day of May 2006.
The Appellant was charged before the lower Court for official corruption upon three counts reproduced as follows:-
“COUNT ONE
That you Akingbola Johnson (M) between the 3rd and 5th of November 2003, at Utako, Abuja did corruptly ask for the sum of =N=10,000.00 for yourself from Mr. Okwudili Isielu in the discharge of your official duties, in order to admit Messrs Victor Uzor and Chidiebere Nwaogo on bail and you thereby committed an offence contrary to and punishable under Section 8(1)(a), (b), (ii) of the Corrupt Practices And Other Related Offences Act 2000.
COUNT TWO
That you Akingbola Johnson (M) on or about 5th of November 2003 at Utako, Abuja did corruptly received the sum of =N=10,000.00 for yourself from Mr. Okwudili Isielu in the discharge of your official duties, in order to admit Messrs Victor Uzor and Chidiebere Nwaogo on bail and contrary to and punishable under section 8(1)(a), (b), (ii) of the corrupt Practices And other Related offences Act 2000.
IN THE ATTERNATIVE
That you Akingbola Johnson (M) on or about 5th of November 2003, at Utako, Abuja did corruptly receive the sum of =N=10,000.00 for yourself from Mr. Okwudili Isielu in the discharge of your official duties, in settlement of a case of stolen handset and being in possession of Indian hemp under investigation so that it will not go to Court and you thereby committed an offence contrary to and punishable under section 8(1 )(a), (b), (ii) of the corrupt practices And other Related Offences Act 2000.”
In proving the case against the Appellant, the prosecution called 6 witnesses and the Appellant testified in his defence.
At the conclusion of trial, the Appellant was found guilty, convicted and sentenced to two years imprisonment for Counts one and two, both sentences to run concurrently.
The Appellant being dissatisfied with the Judgment now appealed to this Court.
The learned counsel for the Appellant formulated five issues for determination. The issues are set out as follows:-
“(1) whether the learned trial Judge was right suo motu to have raised, considered and held that the Appellant’s defence was on an “illegal premise” on the ground that theft was not compoundable and on that basis discountenanced the Appellant’s defence without affording the Appellant an opportunely of being heard (Ground 6).
(2) whether the learned trial Judge was right to have discountenanced the Appellant’s defence on the ground that theft was not a compoundable offence (Ground 7).
(3) Whether the search warrant was executed in compliance with the terms so as to warrant the admission of its result against the Appellant (Ground 2).
(4) Whether the learned trial Judge was right to infer and hold that the Appellant had a criminal intent when the Appellant moved from the Police Station to a kiosk to collect the monetary sum of =N=10,000.00 for an amicable settlement of the complaint (Ground 5).
(5) Whether the Respondent proved the guilt of the Appellant beyond a reasonable doubt so as to warrant his conviction and sentence on both counts” (Grounds 1 , 3, 4 & 8).
On the other hand, the learned Counsel for the Respondent formulated four issues for determination. The issues are set out as follows:-
“(1) Whether or not, the learned trial Judge suo motu raised, considered and resolved o fresh issue without hearing the parties on the issue and determined the Accused/Appellants defence on that basis.
(2) Whether the learned trial Judge was right in admitting the result of the search warrant against the Appellant.
(3) Whether the learned trial Judge was right to hold that the Appellant had a criminal intent by moving to a kiosk to collect the =N=10,000.00
(4) Whether from the facts and evidence tendered at the trial, the Prosecution proved its case beyond reasonable doubt against the Appellant.”
At the hearing in this Court, the learned Counsel for the Appellant referred to the Appellant’s brief of argument filed on 7/3/07 but deemed properly filed and served on 21/11/07.
He adopted the said brief of argument and urged that the appeal be allowed.
The learned Counsel for the Respondent also referred to the Respondent’s brief of argument filed on 26/3/09 but which was deemed properly filed and served on 18/3/2010. He adopted the said brief as his argument in this appeal. He finally urged that the appeal be dismissed.
The issues for determination formulated by the learned Counsel for the parties are similar, however, I will rely on the issues as set out in the Appellant’s brief of argument in the determination of this appeal because I believe that it would settle the issues in controversy.
ISSUES 1 & 2 TAKEN TOGETHER
“Whether the learned trial Judge was right suo motu to have raised, considered and held that the Appellant’s defence was on an “illegal premise” on the ground that theft was not compoundable and on that basis discountenanced the Appellant’s defence without affording the Appellant an opportunity of being heard (Ground 6)”.
“Whether the learned trial Judge was right to have discountenanced the Appellant’s defence on the ground that theft was not a compoundable offence (Ground 7).”
The learned Counsel for the Appellant submitted that the lower Court erred in law when it raised suo motu and ruled thereon that theft is not a compoundable offence.
He submitted further that when a Court raises a point or an issue suo motu the parties must be given on opportunity to be heard on such point, particularly the party that may suffer some disadvantage or disability as a result of such issue raised suo motu. This is to ensure that the parties are given a fair hearing, especially in criminal matters.
He relied on the following cases:-
– Kankara v. COP (2002) 13 NWLR Part 785 Page 596 at 601;
– Osodi v. Eyifunmi (2000) 13 NWLR Part 684 page 298;
– Jatau v. Ahmed (2003) 4 NWLR Part 811 page 540.
He finally submitted on Issue I that the trial Court was in error in holding that the Appellant had a dishonest/fraudulent motive for the demand of =N=10,000.00 to settle a non-compoundable offence suo motu without giving the parties the opportunity to be heard.
The learned Counsel for the Appellant submitted in respect of Issue 2 that the lower Court erred in law when it held that theft is not a compoundable offence and therefore discountenanced the Appellant’s defence which raised a reasonable doubt on his mens rea.
He referred to the statement of the Accused/Appellant, his testimony at the trial Court and he submitted that the Appellant in his testimony showed that he lacked the intent to commit the crime he was convicted for. He also submitted that in criminal trial, in order to sustain a conviction that both mens rea and actus reus must be present and proved.
He relied on the following cases:-
– Mirchandani v. Pinheiro (2001) 3 NWLR Part 701 page 557;
– Nzeribe v. Dave Egnr. Co. Ltd (1994) 8 NWLR part 361 page 124;
– Udo v. C.R.S.N.C. (2001) 14 NWLR Part 732 page 116;
It was finally submitted on this issue that the fact that an offence is not compoundable does not ipso facto, prove that the Appellant had the requisite criminal intention to commit the crime for which he was convicted and sentenced.
In his own submission the learned Counsel for the Respondent stated that the learned trial Judge considered the defence raised by the Appellant and resolved some by disbelieving it in the circumstances. He referred to the last paragraph of page 125, of the Record of Appeal to show that the defence of the Appellant was considered.
He went further in his submission that the Appellant raised the issue of attempting to compound the offence of theft and that the trial Judge addressed it. He also stated that what an Accused Person raised as his defence cannot be said not to be before the Court.
He finally urged this Court to hold that the Appellant’s defence was manifestly unbelievable and that the Court was justified in disbelieving the Appellant’s defence.
The learned Counsel for the Appellant contended that the lower Court erred in law when it raised suo motu and ruled thereon that theft is not a compoundable offence.
What is meant by saying a Judge raised an issue suo motu?
When a Judge raises an issue on his own motion or raises an issue not in contemplation of the parties, or an issue not before the Court, the Judge is said to have raised the issue suo motu.
The law is well settled that a Court has no jurisdiction to raise an issue suo motu and make out a case for one of the parties and where the Court has taken such step it must give an opportunity to the parties or their Counsel to be heard before pronouncing on the issue so raised.
The exception to affording the parties or their Counsel a hearing on issues raised suo motu are where the Judge is expected to take Judicial notice by virtue of the provisions of the Evidence Act. (See Sections 73 and 74 of the Evidence Act).
See the following cases:-
– Kuti v. Balogun (1991) 1 S. C. page 53;
– Iriri v. Enhuzhobara (1991) 2 NWLR Part 173 page 252;
– Ugo v. Obiekwe (1989) 1 NWLR Part 99 page 566;
– Adeniji v. Adeniji (1972) 4 S.C. page 10.
– Ogiamien vs. Ogiamien (1967) NMLR page 247.
In this case under consideration the learned trial Judge held as follows on page 125 last paragraph that:-
“… if the complaint to the ICPC on the demand of =N= 10,000.00 by the Accused was made by PW4 who never claimed to have anything to do with the detainee of the theft of the mobile phone and the fact that the Accused never denied Pw4 approaching him, then the story of the Accused that the money was for a damaged handset cannot be believed.”
It would be recalled that the evidence on record showed that Victor Uzor and Chidiebere Nwaogo were detained for being in possession of dried leaves suspected to be Indian hemp; their detention had nothing to do with those detained in respect of alleged stolen handset. The PW4 i.e. Mr. Okwudili Isielu went to Utako Police Station Abuja where he met the Appellant who was the IPO and he requested for the bail of the two suspects. It was at that point that the Appellant demanded for the sum of (=N=10,000.00) Ten Thousand Naira in order to release the suspects on bail.
The Appellant raised the issue of attempting to compound the offence of theft. The trial Judge addressed it along with the defence of the Appellant in his Judgment. He cannot therefore complain that it was an issue not within his contemplation or that the issue was not before the Court.
Apart from that the trial Court was entitled under Section 7 4(1)(a) of the Evidence Act to take Judicial Notice of the provisions of Section 287 of the Penal Code which is not compoundable.
My view above is fortified by the decision of the Supreme Court in the case of:-
– Gbadamosi vs. Governor of Oyo State (2006) 13 NWLR Part 997 Page 363 at 374 where it was held among others that:-
“the appraisal of oral evidence and the ascription of probative value to such evidence is the primary duty of a trial Court and a Court of Appeal would only interfere with the performance of that exercise if the trial Court had made an imperfect or improper use of the opportunities of hearing and seeing the witnesses or has drawn the wrong conclusion from the accepted or proved facts which those facts do not support or indeed has approached the determination of those facts in a manner which the facts cannot and do not in themselves support.”
In the circumstance, Issues 1 & 2 are resolved in favour of the Respondent and against the Appellant.
ISSUE. NO. 3
Whether the search warrant was executed in compliance with its terms so as to warrant the admission of its result against the Appellant.
The learned Counsel for the Appellant stated that search warrant by their nature are basically an infringement on the private Rights, however where it is necessary that they be issued, strict compliance is a must. He stated further that the search warrant in this case was for the search of the Appellant’s “Office and Premises”. The office being the place of work of the Appellant which according to him has been identified by the Court as the Police Station.
He relied on the following cases:-
– People vs. Kerrigan 49 A.D. 2d 857;
– State vs. Cottrell 12 Was App 640.
He submitted that the search warrant was to be executed exclusively in the office and premises of the Appellant and not the kiosk. He submitted further that the search of the Appellant in a kiosk exceeds the authority granted by the warrant and ought to be quashed together with the evidence obtained therefrom.
In his response the learned Counsel for the Respondent submitted that admissibility of evidence is based on relevance and evidence cannot be excluded merely by the way it has been obtained.
He relied on the case of:-
– Sadau & Another vs. The State (1968) NMLR Part 2 at page 208.
He submitted further that the Appellant was searched and not the kiosk and that the Police Officer in charge has the right to search a suspect where reasonable grounds for the search exist.
He urged this Court to hold that the money i.e. the =N= 10,000.00 (Ten Thousand Naira) found on the Appellant was properly admitted in evidence.
The law is well settled that there is no general rule of law in civil as well as in criminal cases that evidence which is relevant is excluded merely by the way in which it has been obtained. This is subject in criminal cases to the discretion of a trial Judge “to set aside the essentials of Justice above the technical rule if the strict application of the later would operate unfairly against the Accused.” This means that the Judge can, where the interests of Justice demand it, exclude evidence which otherwise would be relevant considering the circumstances of its discovery and production. See the case of:-
– Sadau & Another vs. State (Supra).
In this appeal there is evidence on record that when the Accused/Appellant was searched, the sum of (=N=10,000.00) Ten Thousand Naira in =N=500.00 denomination was recovered from his breast pocket. It was admitted in evidence. My humble view here is that the admission of the (=N=10,000.00) Ten Thousand Naira in evidence did not in any way operate unfairly against the Appellant who not only admitted receiving the money but went ahead to base his defence on it.
…In the case of:-
Sadau & Another vs. State (supra) it was held among others that:-
“If the proper procedure was not followed, an irregularity may or may not have occurred depending on the facts or circumstances, but in any case the consequence of an irregularity will attach to the persons executing the warrant and not to the evidence which is thereby obtained.
In this case the properties recovered in the house of the Appellant were the subject matter of the charge against him and it will be useless to dispute their relevance to the charge which was being tried…”
Consequent upon the foregoing it is my view that the said (=N= 10,000.00) Ten Thousand Naira was properly admitted in evidence.
This Issue No. 3 is also resolved in favour of the Respondent and against the Appellant.
ISSUE No. 4
Whether the learned trial Judge was right to infer and hold that the Appellant had a criminal intent when the Appellant moved from the Police Station to a kiosk to collect the monetary sum of =N=10,000.00 for the amicable settlement of the complaint (Ground 5).
The learned Counsel for the Appellant submitted that the lower court erred in law when it inferred and held that the Appellant had a criminal intent when the Appellant moved from the police Station to a kiosk to collect the monetary sum of =N=10,000.00 for the amicable settlement of the complaint.
He went further, that the burden of proving that the intention of the Appellant is criminal rests squarely on the prosecution. And to be able to discharge the burden evidence must be led to eliminate all other possibilities.
He referred to the case of:-
-A.G. Fed. V. Ogunro (2001) 10 NWLR Part 720 page 175.
He also referred to the evidence of PW2 who identified the Appellant as her customer. It was then submitted on behalf of the Appellant that the trial Judge’s findings was based on circumstantial evidence. He went further that in order to convict on circumstantial evidence, it must not only be cogent, complete and unequivocal, but compelling and lead to the irresistible conclusion that the Appellant indeed committed the crime for which he was convicted and sentenced.
He relied on the following cases:-
– Ijiofor vs. State (2001) 3 NWLR part 699 page 55.
– Nweke vs. State (2001) 4 NWLR part 704 page 588;
– Ezediufu vs. State (2001) 17 NWLR part 741 page 82.
He finally submitted that the handing over of money at the kiosk is not conclusive proof of the Appellant’s dishonest intent.
The learned Counsel for the Respondent on the other hand submitted that PW2’s testimony i.e. Mariam Sani who was an independent witness testified that she heard the Appellant asked PW4 what he brought for him after going into her kiosk and that this was an indication of a criminal intent.
He urged this Court to hold that in the circumstances of this case, the trial Court was right to have arrived at the conclusion that the Appellant showed a criminal intent by choosing the kiosk, out of the official place of business to receive the money from PW4 who wanted his brothers released on bail.
In this case, evidence was led at the trial Court which showed that PW4 was not interested in the detainees of stolen mobile phone and could not have been interested in the amicable settlement with the complainant. He was only interested in getting his brothers Victor Uzor and Chidiebere Nwaogo released on bail for the offence of being in possession of marijuana.
Also at the lower Court nobody showed up as the owner of the stolen phone, rather PW6 Tosin Okubanjo testified that the phone snatched from her was returned undamaged and she had no further dealings with the Police thereafter and she did not demand =N=10,000.00 as cost of its replacement.
The learned Counsel for the Appellant submitted that the lower Court erred in law when it inferred and held that the Appellant had a criminal intent when the Appellant moved from the police Station to a kiosk to collect the sum of =N=10,000.00 for the amicable settlement of the complaint. He submitted further that the finding was based on circumstantial evidence.
That will lead me to the question, what is circumstantial evidence?
Circumstantial evidence is evidence of surrounding circumstances which by undesigned co-incidence is capable of proving a proposition with mathematical accuracy. For circumstantial evidence to be in tune with the reality of the matter, it must be strong, cogent and competing as to convince the court that no rational hypothesis other than the inference therefrom can the fact be accounted for. Circumstantial evidence must be compelling and un-equivocal. It must point only at the direction of the accused and no other person and, to be sufficient, must read conclusively and indisputably to the accused’s guilt.
See the following cases:-
– Obukor v. State (1984) 8 S.C. Page 31;
– Esai v. State (1976) 11 S.C. Page 39;
– Eze v. State (1976) 1 S.C. page 125;
– Omogodo v. State (1981) 5 S.C. page 5;
– Peba v. State (1980) 8 – 11 S.C. page 76.
After considering all the circumstances surrounding this case, the question that came to my mind was why should the Appellant leave his official place of business for a kiosk outside the police Station for an official act?
It is my view that the trial court was right to have arrived at the conclusion that the Appellant showed a criminal intent by choosing the kiosk apart from his official place of business to receive money from PW4 who wanted his brothers released on bail.
In view of my conclusion on this Issue No. 4, it is also resolved in favour of the Respondent and against the Appellant.
ISSUE NO. 5
Whether the Respondent proved the guilt of the Appellant beyond reasonable doubt so as to warrant his conviction and sentence on both counts.
The learned Counsel for the Appellant submitted that Section 8(1) of the ICPC Act presupposes that prior to the act of receiving any gratification; “mens rea” or “intention” to do so must be clearly ascertained. He went further that the prosecution has failed to address whether the Appellant collected the money with criminal intent to make him guilty of the offence.
He also referred to Exhibit P3 in which an unnamed person was mentioned and also one Ikechukwu Ibe. He contended that the witnesses should have been called by the prosecution, because according to the Appellant “Ikechukwu Ibe was there when the deal was struck.”
He concluded his submission that the prosecution has failed to prove its case against the Appellant beyond reasonable doubt. The learned Counsel for the Respondent submitted that the prosecution not only discharged the burden of proof placed on it but also went further to discredit the defence put up by the Appellant.
He referred to the testimonies of PW3, PW4 and PW5 which he said were not controverted.
He stated that it was established at the trial that the Appellant demanded for the sum of =N=10,000.00 from PW4 with criminal intent.
He also referred to the testimony of PW5 who was not cross-examined wherein he stated that he heard the Appellant when he said “okay you have brought the money, let me count it so that your brother can be released on bail.”
Learned Counsel stated that the evidence of PW5 referred to above is sufficient to convict as it was not contradicted.
He finally urged that this appeal be dismissed.
In criminal trials, it is a cardinal principle of the law that every allegation of crime must be proved beyond reasonable doubt.
Section 138(1) of the Evidence Act also provides thus:-
“if the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.”
It has been alleged that the prosecution did not prove its case beyond reasonable doubt against the Appellant.
Proof beyond reasonable doubt of a criminal charge does not mean proof beyond all shadow of doubt and it is not attained by the number of witnesses fielded by the prosecution. It depends on the quality of the evidence tendered by the prosecution.
See:- Okeke vs. State (2001) 2 NWLR part 697 page 397.
In the instant case, the Appellant was tried and convicted for violating Section 8(1) (a) & (b) of the Corrupt Practices and Other Related Offences Act 2000. The Section placed a burden on the prosecution to show that there was a corrupt demand and or receipt of property/benefit, it was for the benefit of the receiver in the discharge of his official duty.
There is evidence on record relied upon by the trial Judge that the PW4 Okwudili Isielu went to the office of PW5 and reported that the Appellant demanded for the sum of (=N=10,000.00) Ten Thousand Naira so as to release on bail his two brothers who were detained by the Appellant at Utako Police Station for an offence of being in possession of dried leaves suspected to be Indian Hemp.
The evidence of PW4 was corroborated by the evidence of PW3 and PW5.
The PW5 testified among others as follows:-
“…
On my return I met Godwin Ushie and the complainant.
Godwin Ushie gave the complainant the sum of =N= 10,000.00.
Thereafter I invited the complainant, my colleague Mr. Sunday Yakubu, Agwu Amefula, Franklin Odeminam and Mr. Kehinde.
We went to the scene of the crime at Utako Police Station.
On reaching Utako Police Stafion, I positioned my colleagues to strategic position. I assigned Mr. Agwu Amefula to accompany the complainant to whoever is demanding the money in order for him to confirm whether the Policeman who demanded the money is going to collect the money.
What I heard is “Okay you have brought the money. Let me count it so that your brother can be released on bail” When I heard this, I moved near the door. That time the money has been counted up to figure 20. The accused was the one counting. He then pocketed the money in his breast pocket. The money was in =N=500.00 notes. The accused asked me “who are you standing by the door?” From here I removed my identity card and showed it to him. I told him I am a superintendent of police attached to ICPC.
……………….
They allowed me into the kiosk. I searched three of them.
………………….
The sum of =N=10,000.00 in =N=500.00 denomination was recovered in the breast pocket of the accused.
…………………..
The PW5 was not cross-examined.
After a careful reading of the above extracted evidence from the record and the entire record itself I am satisfied that the prosecution has proved its case beyond reasonable doubt against the Appellant.
The learned trial Judge has also appraised the evidence proffered at the trial and he has given it probative value. The findings and conclusion of the learned trial Judge cannot be faulted.
In view of the foregoing, this Issue No. 5 is also resolved against the Appellant and in favour of the Respondent.
In the final analysis, with the resolution of all the five issues for determination against the Appellant, it is my view that this appeal lacks merit and it is hereby dismissed.
The Judgment of the trial court in charge No.FCT/HC/CR/08/03 delivered on the 15th day of May 2006 is hereby affirmed.
MOHAMMED LAWAL GARBA, J.C.A.: My learned brother JIMI OLUKAYODE BADA, JCA had availed me with a draft of the lead judgment just delivered before today.
The issues submitted for determination have been very ably considered and resolved in line with extant principles of law by his lordship.
I agree entirely with the views expressed and the conclusions on the issues as contained in the lead judgment and join in dismissing the appeal for lacking in merit.
The conviction and sentence of the Appellant by the trial High Court is hereby affirmed by me.
PAUL ADAMU GALINJE, J.C.A.: I have had the privilege of reading in advance the judgment just delivered by my learned brother, Bada, JCA and I entirely agree with the lucid reasoning contained therein and the conclusion arrived thereat that there is no merit in the appeal.
The appeal is hereby dismissed by me, the decision of the lower court delivered on the 15th May 2006 is hereby affirmed.
Appearances
ADEDAMOLA FANOKUNFor Appellant
AND
PAUL BASSI (PLO ICPC) with him is O. T. OGUNNIKA (legal Officer)For Respondent
