ANDREW KOYE FEKOLOMOH v. THE STATE
(2017)LCN/9892(CA)
In The Court of Appeal of Nigeria
On Friday, the 12th day of May, 2017
CA/OW/242C/2012
RATIO
OFFENCE OF CONSPIRACY: MEANING OF CONSPIRACY; WHAT SHOULD BE CONSIDERED IN ESTABLISHING A CHARGE FOR CONSPIRACY
The term conspiracy has been defined by the Apex Court, per Fatayi Williams, JSC (as he then was) in the case of Olushegun Haruna & Ors. V. The State (1978) ALL N.L.R. 738, (1972) 8 – 9 S.C. 108, (1972) LPELR – 1356, 23 – 24 when he enunciated thereon as follows: “Conspiracy as an offence is nowhere defined in the Criminal Code (which is in force in the Southern States) but since the common law is in force in Nigeria the word must bear the same meaning as in England. It means, under the common law, an agreement of two or more persons to do an act which it is an offence to agree to do. The very plot is an act in itself, and the act of each of the parties promise against promise, actus contra actum, capable of being enforced if lawful, is punishable if it is for a criminal object or the use of criminal means; (see Archbold 37th Edition paragraph 4051). In short, it is the agreement to do an act which it is an offence to agree to do which constitutes the offence of conspiracy under the Criminal Code.” See also, the case of Oduneye V. State (2001) 2 NWLR (Pt. 697) 311, (2001) LPELR – 2245. His Lordship went further at pages 26 – 27 of the above cited case in determining some of the criteria, that should be considered in establishing a charge for conspiracy, when he held as follows. “… we agree with the submission of Mallam Kalgo that, in deciding whether all the charges brought in respect of the overt acts of the conspirators arose out of the same transaction, what should be looked at is the proximity of time and place and the continuity of action. The test must always be, do these acts, considered together, portray any continuity of purpose. If they do, all the charges relating to them will be considered as having arisen out of the same transaction. PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
OFFENCE OF CONSPIRACY: HOW TO PROVE THE COMMISSION OF THE OFFENCE OF CONSPIRACY
Indeed, it is often very difficult to get direct evidence to prove conspiracy to commit an offence, except where the accused person voluntarily admit the offence. More often than not, a charge based on conspiracy is proved through circumstantial evidence. See State V. Ogbubunjo (2001) 12 NWLR (Pt. 698) 576 and State V. Sule (2009) 17 NWLR (Pt. 1169) 33. PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
OFFENCE OF CONSPIRACY: WHETHER THE COURT CAN CONVICT FOR THE OFFENCE OF CONSPIRACY WHERE THE ACCUSED HAS BEEN DISCHARGED OF THE SUBSTANTIVE OFFENCE
On the contention of the appellant’s counsel, that the appellant having been discharged on counts 2 & 3 on the charge sheet, the learned trial judge had no basis to convict the appellant on the first count, which is merely a conspiracy to commit the offence in the said counts 2 & 3 of the charge. A charge of conspiracy to commit an offence, is distinct and/or independent of the substantive charge. Thus, the failure and or success of the substantive charge, in some circumstances do not automatically applies to the charge of conspiracy. Conversely, where an accused person has been charged with the commission of a wrongful act, together with conspiracy to commit the offence with some other persons, a verdict discharging the accused person in respect of any of the charge, does not imply automatic acquittal in respect of the other or vice versa. Each of the offence is treated independently of each other and determined based on the established facts and circumstances of the case. See Demo Oseni V. The State (2012) LPELR – 7833 (SC). Also, it must be emphasized and reiterated that, the offence of conspiracy when proved, would still be held to have been committed notwithstanding, the fact that the offence in respect of which the accused persons(s) conspired to commit, was not in fact later carried out, or that the accused person did not physically participate in the commission of the offence. It is sufficient, if it can be proved that the accused person was complicit and in conjunction with some other persons, had mutually agreed to commit the offence. See Odiji V. State (1976) 6 S. C. 152; Lawson & Ors. V. The State (1973) 4 S.C. (Reprint), 84; Daboh V. State (1977) ALL N.L.R. 146 (1977) 5 S.C. 122; Oduneye V. The State (supra); Aribigbola Awosika & Anor. V. The State (2010) LPELR – 9164 and Bright V. The State (2012) LPELR – 7841. Thus, it is immaterial that the appellant was discharged and acquitted on the offence of threat to life and threat to life with intent to kidnap, he can still be found guilty on a charge of conspiracy to commit the said offences. Thus, the contention of the appellant’s counsel in this regard, holds no water. It leaks like a sieve and it is accordingly discountenanced.” PER MASSOUD ABDULRAHMAN OREDOLA, J.C.A.
INTERFERENCE WITH FINDING(S) OF FACT(S): WHETHER AN APPELLATE COURT WILL INTERFERE WITH FINDINGS OF FACT OF THE TRIAL COURT WHERE THEY ARE NOT PERVERSE
I agree it is not the duty of an appellate Court to substitute its views for that of a trial Court on findings of facts once the findings are not perverse. See BAMGBOYE & ORS V. OLAREWAJU (1991) 5 SCNJ 88. PER TUNDE OYEBANJI AWOTOYE , J.C.A.
JUSTICES
MASSOUD ABDULRAHMAN OREDOLA Justice of The Court of Appeal of Nigeria
ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria
TUNDE OYEBANJI AWOTOYE Justice of The Court of Appeal of Nigeria
Between
ANDREW KOYE FEKOLOMOH – Appellant(s)
AND
THE STATE – Respondent(s)
MASSOUD ABDULRAHMAN OREDOLA, J.C.A.(Delivering the Leading Judgment): This is an appeal against the decision of the High Court of Abia State sitting at Umuahia (hereinafter referred to as the lower Court) delivered on the 3rd day of November, 2011 by Hon. Justice K. O. Nwosu, J.
In the criminal trial which led to this appeal, the accused/appellant was arraigned before the lower Court, on a three count charge of conspiracy, threat to life and threat to life with intent to kidnap. The said three count charge/information goes thus:
?1. STATEMENT OF OFFENCE: COUNT 1
CONSPIRACY, contrary to Section 516 A(a) of the Criminal Code Vol. II, Cap. 30, Laws of Eastern Nigeria 1963 as amended by Section 3(a) of the East Central State Amendment Edict No. 5 of 1071 as applicable in Abia State.
PARTICULARS OF OFFENCE
ANDREW KOYE FEKOLOMOH and others now at large on 15th day of October 2010 at Umuahia in Umuahia Judicial Division conspired amongst yourselves to commit felony to wit: THREAT TO LIFE WITH INTENT TO KIDNAP.
2. STATEMENT OF OFFENCE: COUNT II
THREAT TO LIFE, contrary to Section 4 (a)
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? (c) of the Abia State Prohibition of Terrorism, Kidnapping, Hostage Taking, Use of Offensive Weapons or Explosive and others Threatening Behaviour Law No. 10 of 2009.
PARTICULARS OF OFFENCE
ANDREW KOYE FEJIKIMOH and others now at large on 15th day of October, 2010 at Umuahia in Umuahia Judicial Division threaten the life of Dr. Stanford Dozie Ubani.
3. STATEMENT OF OFFENCE: III
THREAT TO LIFE WITH INTENT TO KIDNAP, contrary to Section 4(2) of the Abia State Prohibition of Terrorism, Kidnapping, Hostage Taking, Use of Offensive Weapons or Explosive and others Threatening Behaviour Law No. 10 of 2009.
PARTICULARS OF OFFENCE
ANDREW KOYE FEKOLOMOH and others now at large on 15th day of October, 2010 at Umuahia in the Unuahia Judicial Division threaten the life of Dr. Stanford Dozie Ubani with the intent to kidnap him.?
In its bid to prove the guilt of the appellant, the prosecution/respondent (hereinafter referred to as the respondent) called three witnesses including one Dr. Stanford Dozie Ubani (P.W.1), who happened to be the nominal complainant in this case; and tendered several exhibits. On his own part,
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the appellant testified in his defence and closed his case. Thereafter, the learned counsel for the parties filed written addresses and duly addressed the lower Court thereon. Upon the giving of due considerations to the pieces of evidence adduced before him and the written addresses of both parties, the learned trial judge discharged and acquitted the appellant on the second and third counts, but found him culpable in respect of first count on the information/charge sheet. Consequently the appellant was found guilty in respect of the said Count 1 in the charge sheet and the learned trial judge sentenced him to three (3) years imprisonment.
The appellant was dissatisfied with the said judgment, thus, he appealed against the same, vide a notice of appeal dated and filed on the 1st day of February, 2012. The appellant?s complaints against the judgment were predicated on four (4) grounds of appeal. The grounds without their particulars are reproduced as follows:
?GROUND ONE
The learned trial judge erred in law when he ignored the fact and details of the charge/the Court before the Honourable Court and the particulars thereof in finding
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the appellant guilty of conspiracy to commit felony to wit: threat to life with intent to kidnap on 15/10/11 at Umuahia.?
?GROUND TWO
The learned trial judge erred in law when he relied on evidence not before the Court in finding the appellant guilty of conspiracy.?
?GROUND THREE
The learned trial judge erred in law when he convicted the appellant of conspiracy.?
?GROUND FOUR
The judgment cannot be supported having regarded to the evidence.?
?In due compliance with the rules of this Court, learned counsel for the parties filed their respective briefs of argument with regard to this appeal. The appellant?s brief of argument was prepared by Uche S. Awa, Esq. The said appellant?s brief was dated the 13th day of November, 2015 and filed on the 16th day of November, 2015. On the other side of the divide, the respondent?s brief of argument was settled by Umeh Kalu, SAN and Adekunle Kosoko, Esq. It was signed by Umeh Kalu, SAN, the Honourable Attorney-General and Commissioner for Justice of Abia State. The said respondent?s brief of argument was dated the
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2nd day of February, 2017 and filed on the 7th day of March, 2017. The said respondent?s brief was by order of this Court granted on the 16th day of March, 2017 deemed as properly filed and duly served.
Towards the determination of this appeal, the learned counsel for the appellant distilled two (2) issues. The issues are as follows:
?(i) Whether or not the Learned Trial Judge was right when he ignored the fact and details of the counts/charge before the Honourable Court and the particulars stated thereon in finding the Appellant guilty. Grounds 1 & 4.
(ii) Whether or not the Learned Trial Judge was right when he relied on evidence not before the Honourable Court in finding the Appellant guilty of conspiracy. Grounds 2 & 3.?
On his own part, the learned senior counsel for the respondent distilled a sole issue for the determination of this appeal. The issue is as follows:
?Whether the trial Court was wrong in inferring that the appellant conspired with others at large to commit a felony; to wit threat to life with intent to kidnap.?
?Upon the giving of due considerations to the two sets of
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issues formulated by the learned counsel for the parties, I am of the firm viewpoint that the issue formulated by the learned senior counsel for the respondent is more apt and germane. It has sufficiently covered both the main issues to be resolved in this appeal and the issues formulated by learned counsel for the appellant. Thus, the respondent?s issue as formulated is hereby adopted for resolution in this appeal.
LEGAL ARGUMENT.
The learned counsel for the appellant contended ?that the Learned Trial Judge completely ignored the fact and details of the count before the Honourable Court and the particulars stated thereon in arriving at the (his) inference of conspiracy and finding the appellant guilty of it?. The learned counsel argued that there is no shred of evidence on record to support the finding of the learned trial judge that the nominal complainant (P.W.1) was threatened by any means by the appellant or any other person whatsoever in respect of this case.
?In addition, the learned counsel for the appellant submitted, that in order to prove conspiracy, the agreement between the parties must be proved or established from
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the evidence and if it is not, then there is no conspiracy even though many people may seem to have had one connection or the other with commission of the crime. He referred this Court to the case of R. V. Akinsanya (1961) W.N.L.R. 222 and the legal : Criminal Law in Nigeria, 2nd Edition authored by Okonkwo and Naish. The learned counsel argued that from all the pieces of evidence adduced on record, there was no shred or scintilla of evidence which linked the appellant to any unlawful act whatsoever. The counsel submitted in essence, that the address of counsel is but a poor substitute for cogent and or credible evidence, and ?even if counsel?s address can be taken as substitute for evidence the said address must be based on truth and not concocted facts or deliberate misrepresentation of facts as learned prosecuting counsel did in paragraph 3.6 of his address (see page 26 of the Record of Appeal) where he stated that Innocent Emereuwa threatened to kidnap the complainant on phone. There was certainly no evidence of this fact given by the PW 1 when he testified on 7/6/11?. He referred this Court to pages 34 ? 35 of the record of
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appeal. The learned counsel also referred us to the case of Harka Air Services Ltd. V. Keazor (2006) NWLR (Pt. 960) 160. The counsel further argued, that the testimony of PW 1 was clear and unambiguous, and he did not state anywhere, that he was by any means threatened on 15/10/2010 by the appellant and any of his alleged cohorts. Finally, the learned counsel submitted, ?that calling and threatening someone by phone to pay money may be an offence. However, in this case PW1 stated clearly that the accused person did not threaten him and he even went further to say that even Innocent Emereuwa did not threaten him on the said day, that is, 15th October, 2010 as stated in the information?. He therefore urged this Court to resolve this issue in favour of the appellant and allow this appeal.
In reply, the learned senior counsel for the respondent, submitted that conspiracy to commit an offence is a separate and distinct offence. It is independent of actual commission of the offence to which conspiracy is related. He referred us to the cases of Sule v. The State (2009) 7 LRCNCC and Balogun V. Attorney-General, Ogun State (2002) 2 SCNJ, 196. He
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further submitted, that it is difficult to obtain direct evidence to prove conspiracy to commit an offence. Hence, the best form of evidence in this regard is usually circumstantial evidence. He relied on the following cases: Oduneye V. The State (2001) 2 NWLR (Pt. 697) 311; Dabo V. The State (1977) 5 S.C. 197, Erim V. The State (1994) 5 NWLR (Pt. 346) 522 and Sule V. The State, (supra).
In addition, the learned senior counsel for the respondent, argued that bare agreement to commit an offence without the actual commission of the offence to which the conspiracy is related is sufficient to establish the offence of conspiracy. He referred this Court to the case of Enahoro V. Queen (1965) NMLR 265. He further argued, that ?a conviction of a conspiracy charge does not fail merely because a conviction on the substantive/related charge had failed.? He relied on the cases of Atano V. Attorney-General of Bendel State (1988) 2 NWLR (Pt. 75) 201 and Obiakor V. The State (2002) 10 NWLR (Pt. 776) 612. The learned counsel contended that from the circumstances of this case, the learned trial judge rightly inferred that appellant was guilty of conspiracy to
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commit a felony, to wit, threat to life with intent to kidnap. He therefore urged this Court to resolve this issue in favour of the respondent and dismiss this appeal.
?At this stage, it is pertinent to set the facts of this case straight and as established. The nominal complainant (who testified as PW1), an investigative journalist/public commentator embarked on a building project in his village, Umuiku Isiasa Ukwu West Local Government Area of Abia State. Sometimes in September, 2010 the project was still going on, when a gang of notorious armed robbers and kidnappers led by Obioma Nwankwo a.k.a Osisikankwu demanded for a ransom in the sum of N500,000.00 before they will allow the project to continue. The PW 1 after contacting the security operatives with no success decided to negotiate with the said kidnapping gang, and the ransom was reduced to N150,000.00 which he paid. After the payment of the said ransom, the previously sleepy security operatives suddenly woke up from their slumber and swung into action and dislodged the armed gang from their camps, to which they fled away to Yenegoa in Bayelsa State. While in Yenegoa, Innocent Emereuwa (Popularly
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known as Akajiaku, who is the third in command to Osisikankwu) contacted PW1 with demand for another payment of money. When PW1 inquired from the said Akajiaku on how he will remit the money to him, the appellant?s UBA account number was sent to him. After the receipt of the account number, he wrote a petition to the Commissioner of Police, Abia State. He then arranged with the Police and paid N30,000.00 into the said account number as a bait to catch the culprits. The appellant took the bait and was arrested in the bank premises when he went to withdraw the said money. While being arrested at the bank premises, he alerted the said Akajiaku and his gang members which prompted them to flee. The appellant after he was arrested, initially gave the Police, a false name and phone number, but later admitted owning the account number.
In his judgment, the learned trial judge found that the following facts remained uncontradicted, discredited and or unchallenged:
?1. That one Innocent Emereuwa a.k.a. Akajiaku is at large and is a notorious kidnapper/armed robber wanted by the police in the light of the evidence of PW1 the complainant and the two
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Police officers who played major roles in this case.
2. This Akajiaku had earlier threatened the PW1 and collected a ransom of N150,000.00 before he and his gang allowed the PW1 and his workers to continue work at the building site in his village.
3. Akajiaku and his gang which comprise late notorious kidnapping kingpin Osisikankwu and late Stone threatened PW1 that if he did not cause the police to release the accused they would attack him and members of his family which they did.
4. Later Akajiaku demanded from the PW1 who reside in Umuahia another sum of money to be paid into a UBA account in Yenegoa which he gave PW1 .
5. Akajiaku gave PW1 UBA account number into which he would pay the ransom money.
6. Accused was arrested when he went to withdraw the bait sum in the account which turned out to be his.
7. Accused knows Akajiaku very well as his inlaw (by his admission).
8. Akajiaku has been lodging money and withdrawing money from accused person account and communicated with him on phone (by his own admission).
9. Akajiaku was based in Abia State and of PW1 (by accused admission).
10. When accused was
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arrested he sent an sms to Akajiaku that he had been arrested (by his evidence).
11. The threat on PW1 by Akajiaku was through phone and the threatened person, the PW1 resides in Umuahia at all material times.
12. Evidence of the prosecution witnesses with respect to count one is consistent and was not discredited even under cross-examination.?
(See pages 51 ? 52 of the record of appeal).
The learned trial judge then proceeded and held thus:
?I hold that conspiracy can be inferred from the undisputed facts above in this case. I don?t agree with the contention of defence counsel that because PW1 said that at the point when Akajiaku asked for the ransom the second time that it was not a threat means that indeed PW1 did not act under threat by Akajiaku. The said expression cannot be taken in isolation of the entire evidence of the prosecution witnesses. Doing otherwise will be making mockery of unchallenged evidence of the prosecution. PW1 acted under the pain and stress of the continued threat and attack on PW1 by Akajiaku and his gang. It was the threat that led PW1 to write Exhibit A to the Police. It was the
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police reaction to Exhibit A that led to the arrest of the accused who was arrested when he went to withdraw a bait sum deposition in the account given to PW1 by Akajiaku which was the role of the accused.?
(See page 52 of the record of appeal).
The term conspiracy has been defined by the Apex Court, per Fatayi Williams, JSC (as he then was) in the case of Olushegun Haruna & Ors. V. The State (1978) ALL N.L.R. 738, (1972) 8 – 9 S.C. 108, (1972) LPELR ? 1356, 23 ? 24 when he enunciated thereon as follows:
?Conspiracy as an offence is nowhere defined in the Criminal Code (which is in force in the Southern States) but since the common law is in force in Nigeria the word must bear the same meaning as in England. It means, under the common law, an agreement of two or more persons to do an act which it is an offence to agree to do. The very plot is an act in itself, and the act of each of the parties promise against promise, actus contra actum, capable of being enforced if lawful, is punishable if it is for a criminal object or the use of criminal means; (see Archbold 37th Edition paragraph 4051). In short, it is the
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agreement to do an act which it is an offence to agree to do which constitutes the offence of conspiracy under the Criminal Code.?
See also, the case of Oduneye V. State (2001) 2 NWLR (Pt. 697) 311, (2001) LPELR ? 2245.
His Lordship went further at pages 26 – 27 of the above cited case in determining some of the criteria, that should be considered in establishing a charge for conspiracy, when he held as follows.
we agree with the submission of Mallam Kalgo that, in deciding whether all the charges brought in respect of the overt acts of the conspirators arose out of the same transaction, what should be looked at is the proximity of time and place and the continuity of action. The test must always be, do these acts, considered together, portray any continuity of purpose. If they do, all the charges relating to them will be considered as having arisen out of the same transaction.?
?In the instant case, it is an unchallenged fact, that the PW1 was threatened when he paid the reduced sum of N150,000.00 as ransom to the dreaded gang of armed robbers/kidnappers. In about two (2) months thereafter, another sum of
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money was demanded from the PW1 which upon the arrangement with the Police, paid into the account of the appellant as a bait. The reasonable inference that can be drawn in these given circumstances is that the subsequent demand for another payment by the armed gang was in line with their earlier threat. If not, no other reasonable explanation can be given for the demand, especially where there was no single evidence on record, to suggest that the PW1 was in fact having any business transaction or friendly relationship with the armed gang members (particularly Akajiaku) or related to them by whatever nature of pedigree. From these pieces of evidence and fortified with the above authorities, I do agree with the learned trial judge, that there was enough circumstantial evidence to infer that the appellant was indeed acting in concert or in cahoots with the kidnapping gang. Indeed, it is often very difficult to get direct evidence to prove conspiracy to commit an offence, except where the accused person voluntarily admit the offence. More often than not, a charge based on conspiracy is proved through circumstantial evidence. See State V. Ogbubunjo (2001) 12 NWLR
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(Pt. 698) 576 and State V. Sule (2009) 17 NWLR (Pt. 1169) 33.
In the instant case, the circumstantial evidence upon which the appellant was convicted is strong and compelling; I have no reason whatsoever to disturb the findings of the learned trial judge in this regard. On the contention of the appellant?s counsel, that the appellant having been discharged on counts 2 & 3 on the charge sheet, the learned trial judge had no basis to convict the appellant on the first count, which is merely a conspiracy to commit the offence in the said counts 2 & 3 of the charge. A charge of conspiracy to commit an offence, is distinct and/or independent of the substantive charge. Thus, the failure and or success of the substantive charge, in some circumstances do not automatically applies to the charge of conspiracy. Conversely, where an accused person has been charged with the commission of a wrongful act, together with conspiracy to commit the offence with some other persons, a verdict discharging the accused person in respect of any of the charge, does not imply automatic acquittal in respect of the other or vice versa. Each of the offence is
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treated independently of each other and determined based on the established facts and circumstances of the case. See Demo Oseni V. The State (2012) LPELR ? 7833 (SC).
Also, it must be emphasized and reiterated that, the offence of conspiracy when proved, would still be held to have been committed notwithstanding, the fact that the offence in respect of which the accused persons(s) conspired to commit, was not in fact later carried out, or that the accused person did not physically participate in the commission of the offence. It is sufficient, if it can be proved that the accused person was complicit and in conjunction with some other persons, had mutually agreed to commit the offence. See Odiji V. State (1976) 6 S. C. 152; Lawson & Ors. V. The State (1973) 4 S.C. (Reprint), 84; Daboh V. State (1977) ALL N.L.R. 146 (1977) 5 S.C. 122; Oduneye V. The State (supra); Aribigbola Awosika & Anor. V. The State (2010) LPELR ? 9164 and Bright V. The State (2012) LPELR ? 7841. Thus, it is immaterial that the appellant was discharged and acquitted on the offence of threat to life and threat to life with intent to kidnap, he can still be found
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guilty on a charge of conspiracy to commit the said offences. Thus, the contention of the appellant?s counsel in this regard, holds no water. It leaks like a sieve and it is accordingly discountenanced.
It is the primary duty of the trial Court who admits evidence, saw and observed the demeanour of the witness(es) to evaluate and ascribe probative value to all the pieces of evidence adduced before it. Thus, where the trial Court reached its decision, based on credible evidence duly admitted before it, an appellate Court has no business to disturb or interfere with the said decision and substitute the same with its own. An appellate Court is only entitled to interfere with the decision of the trial Court, if the same is not in line with duly admitted evidence on record, that is, not supported by admitted evidence and thus perverse; or it is not in accordance with the laid down principles of law. See Iriri & Ors. V. Erhurhobara (1991) 2 NWLR (Pt.173) 252; Dakat V. Dashe (1997) 12 NWLR (Pt. 531) 46 and Okoye V. Obiaso (2010) 8 NWLR (Pt.1195) 145. In the instant case, the learned trial judge after making his findings, went further and observed and
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stated as follows:
?I watched the demeanour of the accused very carefully. Guilt was written all over him. He practically confessed to the crime and prevaricated so much under cross-examination. His evidence further support the evidence adduced by the prosecution with respect to count one. The testimony of the accused is consistent with his statement to the police (Exhibit B).?
(See page 52 of the record of appeal).
The observation made above by the learned trial judge cannot be faulted or disturbed by me, because I do not have the same opportunity as the learned trial judge to observe the appellant. My position and indeed the jurisdiction of this Court is limited only to ascertaining from the cold evidence on the printed record and state whether or not, the decision of the lower Court accords with the admitted evidence on record, and nothing more. An appellate Court is not permitted to disturb or interfere with a trial judge?s physical observation of a witness who testified before him under any disposition or guise. Thus, I completely resist, both the invitation and temptation in this regard. Therefore, I agree with the
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learned trial judge, that the offence with which the appellant was charged in Count 1 has been proved beyond reasonable doubt by the respondent. In the premise, this issue is hereby resolved against the appellant.
Having resolved the issue formulated and adopted for the determination of this appeal in the manner stated above, this appeal is hereby found by me to be utterly lacking in merit and it is accordingly dismissed. The judgment of the lower Court delivered on the 3rd day of November, 2011 in Charge No: HU/6C/2011: The State Vs. Andrew Koye Fekolomoh, inclusive of the sentence imposed are hereby affirmed by me.
ITA GEORGE MBABA, J.C.A.: I had the privilege of reading the lead judgment just delivered by my learned brother, M. A. Oredola JCA. I agree, completely, with his reasoning and conclusion, that the appeal lacks merit and should be dismissed. I too dismiss it.
TUNDE OYEBANJI AWOTOYE, J.C.A.: I was opportuned to read the draft of the judgment just delivered by my learned brother MASSOUD ABDULRAHMAN OREDOLA J.C.A.
I agree it is not the duty of an appellate Court to substitute its
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views for that of a trial Court on findings of facts once the findings are not perverse. See BAMGBOYE & ORS V. OLAREWAJU (1991) 5 SCNJ 88.
The finding of facts of the learned trial judge are unimpeachable.
I also hold that this appeal lacks merit. I dismiss it accordingly. The judgment of the lower Court is hereby affirmed.
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Appearances
Uche S. Awa, Esq. with him, Y.A. Omenka, Esq.For Appellant
AND
P.U. Ogubunka, Esq. (Director, Civil Litigation, Ministry of Justice, Abia State)For Respondent
