BAMALI v. FRN
(2020)LCN/14342(CA)
In The Court Of Appeal
(JOS JUDICIAL DIVISION)
On Tuesday, June 30, 2020
CA/J/14/C/2020
Before Our Lordships:
Tani Yusuf Hassan Justice of the Court of Appeal
Mudashiru Nasiru Oniyangi Justice of the Court of Appeal
Boloukuromo Moses Ugo Justice of the Court of Appeal
Between
ENGR. UMAR SAIDU BAMALI APPELANT(S)
And
FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)
RATIO
WHETHER OR NOT FOR ISSUES FOR DETERMINATION TO BE COMPETENT, IT MUST BE FORMULATED FROM THE GROUNDS OF APPEAL FILED N THE APPEAL
Let me add that it settled principle of law that for an issue to be competent it must have been formulated from the ground(s) of appeal filed in the appeal and which ground must attack the ratio decidendi of the case. See YADIS NIGERIA INSURANCE COMPANY U.T.B. LTD V. DOLMETSCH PHARMACY (NIG) LTD (2007) 16 NWLR (Pt. 1061) 520. Where there is no ground of appeal supporting the issue raised, it will be discountenanced and rejected hence it is said that grounds of appeal are the taproots of the case on appeal as they lay the foundation upon which the case grows in the appellate Court to fruition per Tobi JSC of blessed memory in DAGACI OF DERE V DAGACI OF EBWA (2006) 7 NWLR (Pt. 979) 382. Issues are meant to flow from the grounds in an appeal and where not, they become incompetent and will be struck out. See EMESPO J. CONTINENTAL LTD V CORONA SHIFAN RTSG-ESELLS CHAFT MBH AND COMPANY (2006) 11 NWLR (Pt. 991) 365, BISIRIYU AKINLAGUN AND ORS V TAIWO OSHOBOJA AND ANOR (2006) 12 NWLR (Pt. 993) 60. PER ONIYANGI, J.C.A.
BURDEN AND STANDARD OF PROOF IN CRIMINAL TRIALS
These requirements are provided for under Section 132 and 135 of the Evidence Act, 2011 thus: “The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.”
S. (135)
“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”.
(2) The burden of proving that any person has been guilty of a crime or wrongful act is subject to Section 139 of this Act on the person who asserts it, whether the commission of such act is or is not directly in issue in the action.
(3) If the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted on to the Defendant.”
Under S. 139 of the same Evidence Act, 2011the burden of proof is provided for. It goes thus:-
S. 139(1)
“Where a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any exception or exception from, or qualification to, the operation of the law creating the offence with which he is charged is upon such person.
(2) The burden of proof placed by this part upon a Defendant charged with a criminal offence shall be deemed to be discharged if the Court is satisfied by evidence given by the prosecution, whether on cross examination or otherwise, that such circumstances in fact exist.
(3) Nothing in Sections 135 and 140 or in subsection (1) or (2) of this section shall:-
(a) Prejudice or diminish in any respect the obligation to establish by evidence according to law any acts omissions or intentions which are legally necessary to constitute the offence with which the person accused is charged;
(b) Impose on the prosecution the burden of proving that the circumstances or facts described in subsection (2) of the section does not exist; or
(c) Affect the burden placed on a Defendant to prove a defence of intoxication or insanity.”
S. 140
“When a fact is expressly with the knowledge of any person, the burden of proving that fact is upon him.”
In the light of the foregoing provisions of the Evidence Act, 2011, the burden of proof placed on he who alleges and in this instance the prosecution, is proof beyond reasonable doubt. In plethora of cases it has been decided that proof beyond reasonable doubt is not beyond all iota or shred of doubts See OKOROJI V THE STATE (2001) FWLR (Pt. 77) 871 at 894-895.
In addition to this, proof beyond reasonable doubt is to establish in law and fact that the accused committed the offence as charged. See EDE AND ANOR V FEDERAL REPUBLIC OF NIGERIA (2001) FWLR (Pt. 81) 1834 at 1843. That is to say that proof beyond reasonable doubt must be premised on the appraisal of all evidence adduced and which have been seen to weigh against the accused, but doubtfully that it is based on a rationally arising out of the circumstances of the case that by all stretch of imagination the accused person is the person who committed the crime. It is not out of place to say that it must exclude beyond all reasonable doubt every other conceivable imaginable state of affairs other than of the accused’ guilt. See UBANI V THE STATE (2002) FWLR (Pt. 95) 211 at 219-220. In the cases of MOSES V STATE (2003) FWLR (Pt. 141) 1969 at 1986 and NIGERIA AIR FORCE V EX SQN. LDR OBIOSA (2003) FWLR (Pt. 148) 1224 at 1254 proof beyond reasonable doubt is not beyond all iota or shred of doubt nor beyond the primary onus of establishing the guilt of the accused depending on the quality of evidence and not number of witnesses. See UKPE V STATE (2002) FWLR (Pt. 103) 416 at 435, EZEDIUFU V THE STATE (2002) FWLR (Pt. 113) 321 at 347, ENGINEER KWALE V STATE (2002) FWLR (Pt. 159) 1504 and EYA AND ORS V ALHAJI QUDUS AND ANOR (2003) FWLR (Pt. 106) 1089 at 1116.
Therefore, the prosecution always has a discretion as to the number of witnesses it will call to prove its case and it is not necessary to call a multitude of witnesses see ALONGE V IGP (1959) 4 FSC 203. However, if a witness’s testimony is vital in the determination or proof of the case against the accused and settled same once and for all such witness must be called. See the case of THE STATE V GODFREY AJIE (2000) 7 SC (Pt. 1) 24 at 32. To crown the foregoing position of the law, I add that it is the burden of proof that confer right on the prosecution to adduce evidence from witnesses that can relate to and connect accused with the crime for which he is arraigned. See the case of ISIBOR V THE STATE (2002) FWLR (Pt. 98) 843 at 858. PER ONIYANGI, J.C.A.
WHETHER OR NOT IT IS THE DUTY OF THE TRIAL COURT TO EVALUATE EVIDENCE OF WITNESSES
Now, on the Complaint of no proper evaluation of Evidence. It is not in doubt that the duty of a trial Court’s to assess witnesses, form impression about them and evaluate their evidence having regard to the impression formed of the witnesses. See DATOEGOEM DAKAT V. MUSA DASHE (1997) 12 NWLR (Pt. 531) 46. Oputa JSC (as he then was) in the case of CHIEF ADEBAYO BASHORUN OLUFOSOYE AND ORS V JOHNSON O. OLORUNFEMI (1989) NWLR (Pt. 95) 26 said thus on evaluation of evidence:-
“There is a duty in a trial Court to receive all available relevant evidence on an issue. That is perception of evidence. After that there is another duty to weigh that evidence in the context of the surrounding circumstances of the case. This is evaluation of Evidence.”
See also the following cases:ADELEKE V IYANDA (2001) 13 NWLR (Pt 719) 1 ADENIJI V ADENIJI (1972) 4 SC 10 CHIEF FALADE ONISAODU AND ANOR V CHIEF ASUNMO ELEWUJU AND ANOR (2006) 13 NWLR (Pt. 998) 517. For the procedure to follow in evaluation of evidence, see the case of ODOFIN AND ANOR V MOGAJI AND ORS. (1978) NSCC 275 at 277, AKINTOLA V BALOGUN (2000) 1 NWLR (Pt. 642) 532 and ANOR (2011) LPELR- 3466. PER ONIYANGI, J.C.A.
MUDASHIRU NASIRU ONIYANGI, J.C.A. (Delivering the Leading Judgment): This appeal is against the judgment of the High Court of Justice Plateau State sitting in Jos delivered on the 29th day of November, 2019 Coram Hon. Justice D. D. Longji wherein the Appellant was arraigned on a four count charge namely:-
(1) That you Engr. Umar Saidu Bamali “m” being the Director/Chief Executive Office, Nigerian Institute of Mining and Geosciences (NIMG) sometimes in 2015 at Jos, within the jurisdiction of this Honourable Court, dishonestly misappropriated the sum of N32,000,000.00 (Thirty two Million Naira) only property of Nigerian Institute of Mining and Geosciences (NIMG) purportedly used as allowances for staff of the Institute while nobody was promoted in the 2015, the said sum domiciled in NIMG Personnel cost AC No. 1230100150406901 (1232021028) at the Eco-Bank, Nigeria Ltd FG/North (Jos Branch) and you thereby committed an offence contrary to Section 311 and punishable under Section 312 of the Penal Code Law of Plateau State.
(2) That you Engr. Umar Saidu Bamali “m”
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being the Director/Chief Executive Officer Nigerian Institute of Mining and Geosciences (NIMG) sometimes in 2015 at Jos within the jurisdiction of this Honourable Court, dishonestly misappropriated the sum of N8,661,933.000 (Eight Million, Six Hundred and Sixty One Thousand Naira, Nine Hundred and thirty three Naira) only property of Nigerian Institute of Mining and Geosciences (NIMG) purportedly meant for contract for the printing of security and non-security documents to 3T’s and Son Nigeria Enterprise by approving the sum above the approval limit of the Director/Chief Executive Office (NIMG) exceeded the limit of N2,500,000.00 (Two Million, Five Hundred Thousand Naira) only in the award of contract and said was fraudulently converted to your own use and you thereby committed an offence contrary to Section 311 and punishable under Section 312 of the Penal Code, Laws of Plateau State.
(3) That you Engr. Umar Saidu Bamali “m” being the Director/Chief Executive Officer, Nigerian Institute of Mining and Geosciences (NIMG) sometimes in 2015 at Jos within the jurisdiction of this Honourable Court dishonestly misappropriated the sum of
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N17,000,000.00 (Seventeen Million Naira) only property of Nigerian Institute of Mining and Geosciences (NIMG), the said money was realized by the Institute from the training conducted for Kano State Youths through the State Government, the said money was dishonestly converted to your own use and you thereby committed the offence contrary to Section 311 and punishable under Section 312 of the Penal Code Laws of Plateau State.
(4) That you Engr. Umar Saidu Bamali “m” being the Director/Chief Executive Officer, Nigerian Institute of Mining and Geosciences (NIMG) sometimes in 2015 at Jos, within the jurisdiction of this Honourable Court, while being a public officer received benefit to do favour in the discharge of your official duties by approving contract to 3T’s and Sons Nigerian Enterprise without due process and above your approval limits and you thereby committed an offence contrary to Section 8(1), (a), (b) (i)and punishable under Section 8(1)(b)(ii) of the Corrupt Practices and Other Related Offences Act, 2004.
The Appellant pleaded not guilty to all the counts and in order to establish the foregoing charge counts against the
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Appellant, the prosecution called 7 witnesses and tendered documents, admitted and marked as Exhibits EFCC1-18. The Appellant testified in his defence and called three additional witnesses and through whom he tendered documents admitted and marked as Exhibit D1-D27 respectively. In the end, the learned trial judge in his considered judgment found the Appellant guilty, convicted and sentenced in counts 1, 2, and 4 and discharged him in count 3.
Dissatisfied with the outcome of the trial, hence this appeal which is predicated on the amended Notice of Appeal filed on 7th of February, 2020. Therein are ten grounds. The relief sought specified in paragraph 4 of the Notice of Appeal is herein under reproduced.
“An Order of this Court setting aside the decision of the lower Court, set aside the conviction and sentence of the 1st Defendant and allow this appeal”
The Records of appeal, three volumes were transmitted on 13th day of January, 2020 and consequent upon which respective party filed and exchanged their briefs of argument.
The Appellant’s brief of argument authored by Lagi Innocent Esq.
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dated 19th January, 2020 and filed on 7th February, 2020 was adopted on 1st day of June, 2020. Therein the following issues are presented for the determination of this appeal.
(1) Whether or not a trial Judge can alter, or substitute and convict a Defendant on a charge other than the one he is charged with after the Defendant had successfully defended the original charge without first calling him to plead to the new, altered or substituted charge or informing him of same? (Grounds 1, 2, 4, 5, 7, 8 and 9)
(2) Whether from the totality of evidence before the trial Court there is any legally acceptable evidence to support the conclusion by the trial Court that prosecution had proved its case beyond reasonable doubt and that the evidence provided by the Nigeria Institute of Mining and Geosciences that exonerated the Appellant are fake or discredited? (Grounds 3 & 6)
(3) Whether or not the Respondent had discharged the burden and standard of proof required of it by the evidence Act for the offences the Appellant was charged with and convicted for? (Ground 10)
In the adopted brief of argument of the Respondent prepared by Steve Ehi Odiase
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Esq. dated 24th day of February, 2020 and filed same date, a lone issue was presented and in addition the Respondent chosed to adopt the issues formulated by the Appellant. His lone issue is herein under reproduced.
“Whether the prosecution has proved its case beyond reasonable doubt as required by Section 135 of the Evidence Act of 2011” And whether there was a change in the original counts 1, 2, 3 and 4 of the trial darged (sic) before the lower Court”
Upon a careful reading of the respective issues by Counsel for the Appellant and the Respondent, it became clear to me that the lone issue formulated by the Respondent are captured by the three issues formulated by the Appellant. The Respondent having also elected to adopt the issues formulated by the Appellant would render it appropriate for the Court to adopt the three issues formulated by the Appellant for the determination of this appeal. Therefore, the Court would adopt the three issues presented by the Appellant in determining this appeal.
ISSUE ONE
Whether or not a trial Judge can alter, or substitute
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and convict a Defendant on a charge other than the one he is charged with after the Defendant had successfully defended the original charge without first calling him to plead to the new, altered or substituted charge or informing him of same? (Grounds 1, 2, 4, 5, 7, 8 and 9)
By this issue, the Appellant to my understanding is accusing the Court of failing to take the plea of the Appellant on the amended charges and for which the Appellant was convicted and sentenced.
In support of the foregoing contention he channeled his argument under Sections 231 and 232 of the Plateau State Administration of Criminal Justice Law, 2018, Section 36 of the Constitution of the Federal Republic of Nigeria, 1999 which provisions empowers the Court to amend charges and whenever that is done, to take a fresh plea of the Defendant. The Appellant’s contention as I said before is that the Court did not take any fresh plea of the Appellant still convicted him on the amended counts charge. His argument in support of this issue one is meant to cover his complaint in grounds 1, 2, 4, 5, 7, 8 and 9. My worry is whether or not issue one can accommodate any of those grounds
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from which it is said to have been formulated i.e. (Grounds 1, 2, 4, 5, 7, 8 and 9). One may ask what is an issue for determination. In the case of DANIEL TAYAR TRANS ENT. Co. LTD V ALHAJI LIADI BUSARI AND ANOR (2011) 8 NWLR 387, Onnoghen JSC and former Chief Justice of Nigeria said thus:-
“An issue for determination is simply a combination of facts and circumstances including the law applicable thereto which when decided one way or the other by the Court affect the fate of the appeal”
On the question as to where issue for determination arises, his Lordship said:
“It is now settled law that appeals in this Court and also in the Court of appeal, are now argued on the issues formulated by Counsel as arising from the ground(s) of appeal”.
On relevance of issues for determination, his Lordship also said thus:
“On the other hand, the grounds of appeal from which issues are formulated attack the defects in the ratio decidendi of the judgment appealed against. However, for an issue or issues arising from the grounds of appeal to be relevant, its
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resolution in favour to the Appellant ought to result in the setting aside of the judgment concerned, else it is an exercise in futility as it is not every error committed by a lower Court that would lead to the judgment being set aside. It is therefore settled law that a resolution of a properly formulated issue based on a ground or grounds of appeal which attack the ratio decidendi of the case, will affect the fortunes of the appeal one way or the other since an issue is a question, usually a proposition of law or fact in dispute or combination for both between the parties, necessary for determination of which will affect the result of the appeal”
Let me add that it settled principle of law that for an issue to be competent it must have been formulated from the ground(s) of appeal filed in the appeal and which ground must attack the ratio decidendi of the case. See YADIS NIGERIA INSURANCE COMPANY U.T.B. LTD V. DOLMETSCH PHARMACY (NIG) LTD (2007) 16 NWLR (Pt. 1061) 520. Where there is no ground of appeal supporting the issue raised, it will be discountenanced and rejected hence it is said that grounds of appeal are the taproots of the case on appeal
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as they lay the foundation upon which the case grows in the appellate Court to fruition per Tobi JSC of blessed memory in DAGACI OF DERE V DAGACI OF EBWA (2006) 7 NWLR (Pt. 979) 382. Issues are meant to flow from the grounds in an appeal and where not, they become incompetent and will be struck out. See EMESPO J. CONTINENTAL LTD V CORONA SHIFAN RTSG-ESELLS CHAFT MBH AND COMPANY (2006) 11 NWLR (Pt. 991) 365, BISIRIYU AKINLAGUN AND ORS V TAIWO OSHOBOJA AND ANOR (2006) 12 NWLR (Pt. 993) 60.
Bearing the foregoing in mind and considering and comparing issue one with the grounds of appeal from where it is said to have been formulated, it is my humble view that issue one has no relationship or bearing on the grounds 1, 2, 4, 5, 7, 8 and 9. For purposes of better understanding I will herein under reproduce the aforementioned grounds of appeal from where issue one is said to have been formulated and thereafter reproduce again issue one.
GROUNDS OF APPEAL
Ground 1
“The learned trial judge erred in law when he held that the prosecution had proved beyond reasonable doubt that
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“The 1st Defendant Engr. Umar Saidu Bamali male being the Director General and Chief Executive Officer of the Nigerian Institute of Mining and Geosciences(NIMG) sometimes in 2015 at Jos, within the jurisdiction of this Court dishonestly misappropriated the sum of N32,000.000.00 Thirty two Million Naira) only property of the Nigeria Institute of Mining and Geosciences (NIMG) purportedly used as allowances for the staff of the Institute while nobody was promoted in the year 2015, the said sum domiciled in the NIMG personnel cost NC (sic) No 1230100150406901 (1234021028) at the Eco bank Nigeria Ltd FG/North Jos Branch and you thereby committed an offence contrary to 311(sic) and punishable under Section 312 of the Penal Code Laws of Plateau State.
Ground 2
The learned trial judge erred in law when he held that the prosecution had proved that “That you Engr. Umar Saidu Bamali “m” being the Director General/Chief Executive Officer of the Nigerian Institute of Mining and Geosciences (NIMG) sometimes in 2015 at Jos within the jurisdiction of this Court dishonestly misappropriated the sum of
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N8,661,933.00 (Eight Million, Six Hundred and Sixty One Thousand Nine Hundred and Thirty Three Naira) only property of Nigerian Institute of Mining and Geosciences (NIMG) non-security document to 3T’s and Sons Nigeria Enterprise, by approving the sum above the limit of the Director/Chief Executive Officer (NIMG) exceeded the limit of N2,500,000.00 (Two Million Five Hundred Thousand Naira) only in the award of contract and the said was fraudulently converted to your own use and you thereby committed an offence contrary to Section 311 and punishable under Section 312 of the Penal Code, Laws of Plateau State and convicted him under count 2 of the charge”
Ground 4
The learned trial judge erred when he held that “that however, there was no promotion during the period, as the accused refusal to recognize or honour the letters of employment offered to the staff by his predecessor, that the refusal of the accused to recognize or honour the employment status of the staff as permanent staff, which meant, there could be no promotion for them page 33 of the judgment.
Ground 5
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The learned trial judge erred in law when he held “that however, the accused summoned a meeting that comprised the following:
(1) The accused himself (Engr. Umar Saidu Bamali)
(2) Mr. Adeosun Adeniyi Lawrence (who was the 2nd accused/convict in the case).
(3) Mrs. Sanda Aboyemi (Head of Account)
(4) Mr. Ralph Ogunsoye (Account Staff)
(5) MR. Iliyasu Salisu (PW) Account
(6) Mr. Jerry Epo (PW3) Auditor
(NB. The Court observed and noted that these were not management staff)
Ground 7
The learned trial judge erred when he held that “It is the finding of this Court that the accused knew very well that the money was meant for promotion arrears, and that he know very well that he had not allowed any staff to be promoted, hence the purpose of the fund was not actualized. But he called a meeting of some staff or the Finance to chat a way of how to spend the money. As observed earlier, it was not even a meeting of the management staff, but a meeting with some junior staff of the Finance Department. How crooked.
Ground 8
The learned
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trial judge erred when he held that ‘But that is not all. The disbursement of the money was laced with dishonesty. And the dishonesty was glaringly displayed by the fraudulent way the money was shared. It was not only dishonest but very crude. But that is that bane of corruption. Corruption defies regularity’.
Ground 9
The learned trial judge erred in law when he held that ‘Approving the illegal disbursement of the money in question, the accused is presumed to have intended the natural consequence of his conduct, which was the fraudulent and dishonest disbursement’.
Ground 10
“The judgment of the trial Court was against evidence.”
The issue formulated from the foregoing grounds is as follow:
Whether or not a trial Judge can alter, or substitute and convict a Defendant on a charge other than the one he is charged with after the Defendant had successfully defended the original charge without first calling him to plead to the new, altered or substituted charge or informing him of same? (Grounds 1, 2, 4, 5, 7, 8 and 9)
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It is obvious and glaring that the foregoing issue formulated out of the foregoing (7) seven grounds is not a product of the complaint of the Appellant as expressed in the aforementioned seven grounds. In my mind the said grounds are in the main, complaining about the findings and conclusions of the learned trial judge. Neither of them is complaining about whether or not the Court has the vires to amend charge or that when the charge was amended fresh pleas were not taken. Therefore, I have no hesitation in my mind to come to the conclusion that issue one has no bearing or relationship with any of the grounds herein before reproduced from which it is said to have been formulated.
I have illustrated somewhere before now in this judgment by decided cases by the apex Court that the consequence of such situation, accordingly the issue is discountenanced haven not being distilled from of the identified grounds of appeal. Issue one is incompetent and hence, both the issue and grounds 1, 2, 4, 5, 7, 8, 9 and 10 are hereby struck out.
Further to this even if assuming that the issue is competent, still the complaint of the Appellant is
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unfounded. I say this because, looking at the proceedings of 25th day of May, 2018 contained on pages 685-686 of the record of appeal, it is undisputable that the plea of the Appellant was first taken on that date. The Appellant pleaded not guilty to all the charges. The trial was then adjourned to 1st June, 2018 for hearing while the Appellant and the co-accused were ordered to be remanded in Prison custody (see page 687 of the record). On that return date (1st June, 2018) the issue of bail for both accused was determined and they were admitted to bail. The trial was again adjourned to 25th and 26th July, 2018 for definite hearing (see pages 687-689 of the Record of Appeal). On the 25th day of July, 2018 learned Counsel representing the 2nd accused intimated the Court that the 2nd accused would like to explore the avenue of plea bargain and hence sought for an adjournment. The prosecution had no objection and hence, the hearing was further adjourned to 12th November, 2018 for report of the move for plea bargain.
On that day (12th November, 2018), the prosecution sought for the permission of the Court to move his application to amend the charge against the
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Appellant. The application was taken and granted and the case was again adjourned to 13th December, 2018 for the plea of the accused to be taken. (see page 691 of the Record of Appeal). On that return date i.e. 13th December, 2018, the plea of the Appellant/Accused to the amended charge was taken (see pages 692-623 of the Vol. 2 of the Record of Appeal and pages 1219 to 1224 of Vol. 3 of the Record of Appeal) for the application to amend the charge and the amended charge both dated 29th October, 2018 respectively.
Again for the foregoing there cannot be any complaint suggesting that the Court suo motu amended the charge nor that fresh plea of the Appellant was not taken on the amended charge. By this, the alleged complaint on the amended charge is put in the coffin, nailed and sent to the land of simili.
Having determined issue one, I will proceed to consider issues 2 and 3 together. In my humble view both issues are alleging that the Respondent/prosecutor failed to discharge the burden and standard of proof by legally acceptable evidence to warrant the Court coming to the conclusion that the prosecution has proved its
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case beyond reasonable doubt.
The question therefore is whether or not the prosecution has discharged the burden and standard of proof placed on her to warrant and support the conclusion by the learned trial judge that the prosecution has proved its case beyond reasonable doubt against the Appellant.
The contention of the Appellant’s Counsel is that the prosecution has not proved by way of evidence guilt of the Appellant to warrant his conviction and sentence. He argued that assuming without conceding that the contract was a sham and not awarded and/or it was not executed, then the allegation that money was asked for or received to favour the contractor in awarding the contract will be false and senseless or even that a contractor will pay the sum of N5,000,000.00 (Five Million Naira only) just to get about N450,000.00 as alleged by PW7, will not make sense to anybody. He contended that the Court is not to decide issues based on speculation. He relied on the cases of AKOKHIA VS. STATE (2018) LPELR – 44163, ANI VS. STATE (2009) 6-7 Sc (Pt. 111) page 1, AGIP (NIG) LTD V EZENDU (2010) 1 SC (Pt. 11) 124, ECO BANK NIG LTD VS ANCHORAGE LEISURES LTD (2016)
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LPELR- 40219, ADELENWA V STATE (1972) 10 SC 13, OKPERE V STATE (1971) ALL NLR pg. 1.
It is his case that the Court did not consider the evidence offered by the Institute being the victim rather, it described the evidence as fake and that it was discredited by cross examination. He argued that the Appellant was not a contractor but was made to answer as if he was the one who awarded the contract or single handedly awarded the contract. The Appellant complained of failure of the prosecution to call the secretary of the accused with whom PW3 said he dropped the money before finally allegedly gave it to the Appellant. He added that the Appellant had been consistent in his defence on the point that all the decision taking in respect of the management of the Institute was done by the management team. He referred to pages 182-195 of Vol. 1 of the Record of Appeal. He relied on the provision of Section 168(1), (2) of the Evidence Act, 2011 dealing with presumption of regularity to buttress the acts of the Appellant. He relied on the cases of IBRAHIM V BARDE AND ORS (1996) LPELR- 1407, OYAKHIRE VS STATE (2006) 15 NWLR (Pt.
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1001) at 157 and the evidence of DW1, 2 and 3. He argued that the evidence of the said defence witnesses were neither discredited nor disproved and hence should be preferred.
In arguing issue three, he adopted his argument in support of issues 1 and 2. In addition he cited the case of UZOAGBA AND ANOR V COP (2012) LPELR – 15525 where the Supreme Court stated the elements for the offence of criminal breach of trust as follows:
(i) That the accused person was entrusted with property or dominion over it.
(ii) That he misappropriated it, converted it to his own use or disposes off the said property.
(iii) That the accused did so in violation of any direction of law prescribing the mode in which such trust was to be discharged or any legal contract express or implied which he had made concerning the trust or that he intentionally allowed some other persons to do so and
(iv) That he acted dishonestly.
On the foregoing, he submitted that the basic ingredients of the offence of criminal breach of trust were not established against the Appellant and that the evidence
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adduced before the trial Court fell far below the standard requires to establish the offences complained of. It is his case that it has not been shown that there was any deposit of the fund of the Institute in the bank account of the Appellant or that the funds were in any way kept in his personal custody other than in the Institute’s bank Account where it is normally kept. He argued that all the witnesses of the prosecution (Respondent) made reference to management as the body and basis for administrative decisions and not the Appellant in his personal or any special capacity.
He contended that the evidence led by the prosecution being afflicted by material contradiction is incapable of disclosing any prima facie case against the Appellant. He argued further that the evidence of PW7 is in violent conflict with the evidence of PW1, 3 and 4 and the trial Court is not in the position to pick and choose amongst the conflicting testimonies in arriving at its decision. Therefore, he submitted that the evidence of the Respondent (prosecution) clearly absolve the Appellant from any criminal responsibility and that the transaction that led to the arraignment of
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the Appellant being administrative and civil is incapable of sustaining any criminal charges against him and hence the decision of the trial Court is perverse. He relied on the following cases. TONGO V COP (2007) 12 NWLR (Pt. 1049) 525 at 540-541, UBANATU V COP (2000) 2 NWLR (Pt. 643) 101 at 136, NASIRU V STATE (1999) 2 NWLR (Pt. 589) 87 at 102 and ATANO V ATT. GEN. OF BENDEL STATE (1988) 2 NWLR (Pt. 75) 201.
On burden of proof he relied on the decision of this Court in the case of ZAKARIYA V FRN (2018) LPELR – 43999. It is his contention that the trial Court without any proof or law on the constitute of the management team of the Institute of Mining and Geosciences, it is wrong to speculate and hold that the management meeting testified to by PW3, that decided the expenditure on the payment of over time allowances and the procurement of security documents for the agency. He added that it is the law that the Court cannot raise an issue suo motu and pronounce on same without inviting the parties to address it. He cited in all the following cases, OMINIYI V ALABI (2015) LPELR 24399 SC 23, CONTINENTAL MERCHANT BANK PLC & ORS VS EGBUCHU (2016) LPELR – 40053 pages 12-13
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and NWEKEORIE AND ANR V ANYANWU (2017) LPELR – 4371.
He added that any proceeding conducted without fair hearing amount to a nullity and bound to be set aside. He relied on Section 296 of the Plateau State Penal Code Law 2018 on burden of proof of the commission of offence therein named. He cited the case of GEORGE VS FRN (2014) VOL. 232 LRCN 157 at 178. He argued that the required ingredients has to be proved by the prosecution in order to secure a conviction for the offence of criminal breach of trust under Section 296 of the Penal Code Law of Plateau State. He relied on the case of ONUOHA V STATE (1988) LPELR 2706, IBRAHIM AND ORS V COMMISSIONER OF POLICE (2010) LPELR – 8984.
He contended that there is nowhere in the evidence of the prosecution that the details on monthly release to the Institute was provided to show where the alleged N27,000,000.00 (Twenty Seven Million) was credited for either personal expenditure or overhead. There is also no evidence that any money was diverted nor paid into the personal account of the Appellant and there is no complaint by the Accountant General of
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the Federation or the Nigerian Institute of Mining and Geosciences to the EFCC complaining of any wrongdoing by the Appellant. It is his argument that the evidence led by the Appellant completely contradicted the allegation and hence exonerated the Appellant. Therefore, the Court was in error when it failed to consider dispassionately the evidence before it before convicting the Appellant. He submitted that Appellant through witnesses from the Institute tendered vouchers to show that money was used for the Institute’s activities. That under the Plateau State Penal Code Law or any other Law, there is no specie of crime or offence known as virement without approval.
Therefore, the Respondent failed to prove that the Appellant was entrusted with money. That he committed a breach of trust in respect of the money, that he either (a) misappropriated it or (b) converted it to his own use or (c) in anyway whatsoever disposed of it fraudulently and in a manner contrary to the directive given to him. He urged the Court to allow the appeal and discharge and acquit the Appellant.
On his own part, the learned Counsel representing the Respondent argued the
24
issues together. He contended that it is pertinent to re-state the fundamental principle of criminal trial and which he said that the guilt of an accused person may be proved by:
(a) The confessional statement of the Accused; or admission or
(b) Circumstantial evidence; or
(c) Evidence of eye witnesses.
To buttress this, he cited the case of EMEKA VS STATE (2001) 14 NWLR (Pt. 738) 666 at 683. On the requirement of burden of proof which is placed on the prosecution he relied on the case of BARARU V THE STATE (1987) NSCC 267 at 273 per Oputa JSC (as he then was) thus; the standard of proof is proof beyond reasonable doubt. He submitted that the Respondent established the ingredients of the offences of misappropriation and criminal breach of trust by proving beyond reasonable doubt that the Defendant actually committed the offences for which he was charged. He cited the case ofIORTIM V STATE (1997) 2 NWLR (Pt. 490) 711 at 732 and Section 135 of the Evidence Act, 2011. Reiterating the requirement of proof of the offence under Section 8 (1) (a), (b) (i) of the Corrupt Practices and Other Related Offences Act,
25
2000, he submitted that the provision is known to law and has not been used to constitute an abuse of law in count 4.
Again on proof beyond reasonable doubt, he relied on the case of MICHAEL V THE STATE (2008) 13 NWLR (Pt. 1104) pages 361-386 where the Court held that proof beyond reasonable doubt does not mean proof beyond all shadow of doubt. Further, he argued that if the evidence adduced against a man is such as to leave only a remote probability in his favour, which can be dismissed with the sentence, the case is proved beyond reasonable doubt more so when all the essential ingredients of the offence charged have been proved or established by the prosecution. Proof beyond reasonable doubt is not proof beyond all iota of doubt. He relied on the case of NWATURUOCHA V STATE (2011) 6 NWLR (Pt. 1241) 170, OKERE V THE STATE (2001) 2 NWLR (Pt. 697) 397 at 415-416.
For the foregoing, he submitted that from the totality of the evidence adduced at the trial and the Exhibits tendered, the prosecution established the ingredients of the offence charged linking the Appellant with the commission of the offence. He relied on the evidence of PW1, 2, 3, 4 and 7. He added
26
that it is trite law that where all the essential ingredients of the offence charged have been proved or established by the prosecution, the charge is proved beyond reasonable doubt.
It is his case that from the totality of the evidence adduced by the prosecution, and documents tendered and admitted, the essential ingredients of the offences of misappropriation and criminal breach of trust as contained in counts one, two and four are established and proved beyond reasonable doubt. He added that the Appellant was equally given the opportunity to controvert the vital credible evidence proffered against the accused. The accused Appellant failed to rebut the evidence adduced by the prosecution. It is his contention that the defence witnesses who testified upon being issued with subpoena and tendered exhibits admitted and marked as Exhibits D3 to D22. But the witness failed to demonstrate the exhibits by not adducing evidence linking them. He relied on the case of DUNG V RAILWAY PROPERTY MANAGEMENT COMPANY LTD (2018) LPELR – 45378. Oral evidence must be called to establish the purpose for which they are tendered. He cited the following cases, EJIOGU V ONYEAGUOCHA (2006) ALL FWLR (Pt. 295) 581,
27
LUMATRON NIG. LTD AND ANOR V FIRST CITY MANUMENT BANK PLC (2016) LPELR (page not supplied).
He argued that the learned Counsel for the Appellant was under the erroneous impression that by virtue of Sections 218 and 219 of the Evidence Act, 2011 that Exhibit tendered by an official witness who was merely subpoenaed to tender them without giving oral evidence will be of any value. He added that for Exhibit D3 to D22 to be accorded any probative value, there must be evidence to link them. In the absence of such evidence, Exhibits D3 – D22 will be irrelevant. Hence the learned trial judge was right to expunge them. He relied on the case of IDUNORBA V KEYSTONE BANK LTD & ORS (2018) LPELR – 43840, OMISORE V. AREGBESOLA (2015) 15 NWLR (Pt. 1482) 205 at 323.
He submitted that documentary evidence tendered and admitted in proof of a party’s case remains dormant, unless and until they are activated by oral evidence. Where the party dumps them on the trial Court, the trial Court will not be able to discern and decide on the purpose of the document. He relied on ACN V NYAKO (2015) 18 NWLR (Pt. 1491) 353 at
28
395, NWANKWO AND ANOR V AGWO AND ANOR (2016) 40808, NOBIS ELENDU V INEC (2015) LPELR – 25127, SUBERU V THE STATE (2010) 8 NWLR (Pt. 1197) 586, UBA PLC V ONWUKWE (2017) LPELR – 43279.
On issue of confession by accused he submitted that if the confession is direct and positive, it is sufficient to grant conviction. He relied on EMEKA V STATE (2001) 14 NWLR (Pt. 734) 666 at 682 paras. E-F, AKPAN V STATE (2008) 14 NWLR (Pt. 1106) 72. In his words he submitted thus:
“It is trite law that if the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving the reasonable doubt is shifted on to the Defendant see Section 135(3) of the Evidence Act, 2011. In the instant case, the prosecution having established the essential ingredients of the offences of the misappropriation and criminal breach of trust, and also proving the commission of the said offences beyond reasonable doubt, the trial Court will be right to hold from the foregoing, I will hold that the accused person failed to rebut the presumption of guilt against him. This holding is in line with S. 135(2) and (3) of the Evidence Act, 2011, which provides
29
thus:
“(2) The burden of proving that any person has been guilty of a crime or wrongful act is, subject to Section 139 of this Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action.
(3) If the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted on the Defendant.”
In respect of the foregoing he submitted that the wordings of Section 135 (3) of the Evidence Act are very clear and are not in any way ambiguous. He urge the Court to construe it by using the ordinary language employed by the legislation and hold that the prosecution having proved the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted unto the Defendant, contrary to the submission of the Defendant’s Counsel argument in the brief of argument. Further he contended that where during a criminal trial the prosecution has proved its case beyond reasonable doubt by presenting evidence in proof of the essential element of the offence charged, the burden shifts to the
30
accused person to offer his own explanation in order to controvert the credible evidence of the prosecution. He relied on the case of TAKIM V STATE (2014) LPELR -22667.
On whether or not the prosecution has proved its case in count 4, he relied on the evidence of PW1-7 and their responses to question under cross examination. He urged the Court to hold that the prosecution proved the essential ingredients under Section 311 of the Penal Code Law. He relied on the case of IBRAHIM AND ORS V COP (2010) LPELR – 8984 and ONUOHA V THE STATE (1988) 3 NWLR (Pt. 83) 460. He added that the prosecution in proving its case was able to establish that the Defendant was entrusted with money and the administration of the Institution for which he should take responsibility for all the actions. He argued that it is trite that an act done dishonestly when a person who did the act or thing does that thing with the intention of causing a wrongful gain to himself or another or causing wrongful loss to any other person. He referred to Section 16 of the Penal Code Law and the case of UGBAKA V STATE (1994) 8 NWLR (Pt. 364) 568 and Exhibits 8a, b, c, d and e. He also rely on
31
the statement of the Appellant (Exhibit 9(a) and submitted that the Court can convict solely on confessional statement. He relied on the case of NWACHUKWU V STATE (2008) 3 NCCC 100 at 135, EMEKA V STATE (2001) 14 NWLR (Pt. 734) 666 at 682-683, AMALA V STATE (2004) 12 NWLR (Pt. 888) 14 NWLR (Pt. 1106) pg. 72, SOLOLA V STATE (2005) ALL FWLR (Pt. 269) 1751 at 1782.
Contending that the testimony of the Appellant contradicts his previous statement(s) in writing and submit that it renders his evidence unreliable. He relied on the case of GABRIEL V STATE (1989) 5 NWLR (Pt. 122) 457, MBENU V STATE (1988) 7 SC (Pt. 111) 71 at 82. Para. 15. It is his argument that a Court can convict an accused on his extra judicial confession which is voluntary. He relied on the case of EGBOGHONOBE V STATE (1993) 7 NWLR (Pt. 305) at 383. He submitted that the Defendant did not in any way impeach nor discredit the evidence of PW1, PW2 and PW7. He relied on the case of GAJI V PAYE (2003) 8 NWLR (Pt. 823) 58 at 605. He urged the Court to hold that the prosecution proved its case beyond reasonable doubt and that the trial Court duly, properly and dispassionately considered and
32
evaluated the case put forward by the prosecution and convicted the Appellant. He urged the Court to dismiss the appeal and in consequence affirm the judgment of the trial Court.
Based on my understanding of the argument canvassed by respective Counsel on issues 2 and 3, the gravamen of the complaint of the Appellant is that the prosecution did not discharge the required burden of proof placed on them to secure conviction and that the learned trial judge failed to consider the evidence proffered by the Appellant in his defence. The Respondent’s contention is that they have discharged the standard of proof placed on them by virtue of Section 135 of the Evidence Act, 2011 as amended and that the offences were proved beyond reasonable doubt as required by law against the Appellant.
The pertinent question is whether or not the prosecution proved beyond reasonable doubt the offences against the Appellant and whether the learned trial judge properly evaluated the evidence tendered by respective party before coming to the conclusion reached. These requirements are provided for under Section 132 and 135 of the Evidence Act, 2011 thus:
S. (132)<br< p=”” style=”box-sizing: inherit; margin: 0px; padding: 0px;”>
</br<>
33
“The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.”
S. (135)
“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”.
(2) The burden of proving that any person has been guilty of a crime or wrongful act is subject to Section 139 of this Act on the person who asserts it, whether the commission of such act is or is not directly in issue in the action.
(3) If the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted on to the Defendant.”
Under S. 139 of the same Evidence Act, 2011the burden of proof is provided for. It goes thus:-
S. 139(1)
“Where a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any exception or exception from, or qualification to, the operation of the law creating the offence with which he is charged is upon such person.
(2) The burden of proof placed by this
34
part upon a Defendant charged with a criminal offence shall be deemed to be discharged if the Court is satisfied by evidence given by the prosecution, whether on cross examination or otherwise, that such circumstances in fact exist.
(3) Nothing in Sections 135 and 140 or in subsection (1) or (2) of this section shall:-
(a) Prejudice or diminish in any respect the obligation to establish by evidence according to law any acts omissions or intentions which are legally necessary to constitute the offence with which the person accused is charged;
(b) Impose on the prosecution the burden of proving that the circumstances or facts described in subsection (2) of the section does not exist; or
(c) Affect the burden placed on a Defendant to prove a defence of intoxication or insanity.”
S. 140
“When a fact is expressly with the knowledge of any person, the burden of proving that fact is upon him.”
In the light of the foregoing provisions of the Evidence Act, 2011, the burden of proof placed on he who alleges and in this instance the prosecution, is proof beyond reasonable doubt. In
35
plethora of cases it has been decided that proof beyond reasonable doubt is not beyond all iota or shred of doubts See OKOROJI V THE STATE (2001) FWLR (Pt. 77) 871 at 894-895.
In addition to this, proof beyond reasonable doubt is to establish in law and fact that the accused committed the offence as charged. See EDE AND ANOR V FEDERAL REPUBLIC OF NIGERIA (2001) FWLR (Pt. 81) 1834 at 1843. That is to say that proof beyond reasonable doubt must be premised on the appraisal of all evidence adduced and which have been seen to weigh against the accused, but doubtfully that it is based on a rationally arising out of the circumstances of the case that by all stretch of imagination the accused person is the person who committed the crime. It is not out of place to say that it must exclude beyond all reasonable doubt every other conceivable imaginable state of affairs other than of the accused’ guilt. See UBANI V THE STATE (2002) FWLR (Pt. 95) 211 at 219-220. In the cases of MOSES V STATE (2003) FWLR (Pt. 141) 1969 at 1986 and NIGERIA AIR FORCE V EX SQN. LDR OBIOSA (2003) FWLR (Pt. 148) 1224 at 1254 proof beyond reasonable doubt is not beyond all iota or shred of
36
doubt nor beyond the primary onus of establishing the guilt of the accused depending on the quality of evidence and not number of witnesses. See UKPE V STATE (2002) FWLR (Pt. 103) 416 at 435, EZEDIUFU V THE STATE (2002) FWLR (Pt. 113) 321 at 347, ENGINEER KWALE V STATE (2002) FWLR (Pt. 159) 1504 and EYA AND ORS V ALHAJI QUDUS AND ANOR (2003) FWLR (Pt. 106) 1089 at 1116.
Therefore, the prosecution always has a discretion as to the number of witnesses it will call to prove its case and it is not necessary to call a multitude of witnesses see ALONGE V IGP (1959) 4 FSC 203. However, if a witness’s testimony is vital in the determination or proof of the case against the accused and settled same once and for all such witness must be called. See the case of THE STATE V GODFREY AJIE (2000) 7 SC (Pt. 1) 24 at 32. To crown the foregoing position of the law, I add that it is the burden of proof that confer right on the prosecution to adduce evidence from witnesses that can relate to and connect accused with the crime for which he is arraigned. See the case of ISIBOR V THE STATE (2002) FWLR (Pt. 98) 843 at 858.
Somewhere in this
37
judgment I indicated the number of witnesses called by the prosecution and the one called by the Appellant at the trial. A careful reading of the depositions of the witnesses of the prosecution and in particular PW1, PW2, PW3, PW6 and PW7 are in my view supports the findings of the learned trial judge on counts 1, 2 & 4 to the effect that the sum of N32,000,000.00 granted to the Institute on request to pay the staff arrears of promotion under personnel cost was vired into overhead cost without any authority to do so under the watch and directives of the Appellant.
By the available evidence of the aforementioned witnesses the Court also found that money were assigned to various cadres of staff as overtime allowance. Evidence also revealed that the staff paid are not entitled to the payment but in order to perpetuate the deal designed by the Appellant as the Chief Executive payee of the said overtime allowance were made to return certain amount to the procurement officer and which in the end was used for purposes other than for which it was allocated. (See the evidence of PW6 in particular.)
Another aspect is the award of a contract to a Company called
38
3T’s under the watch of the Appellant. The alleged contract was for the printing of security and non-security documents. The contract was portrayed to have been executed and supplied to the Store of the Institute. The Officer who testified as DW2 owned himself out as the originator of the request for the printing of the security and non-security documents. He asserted that the said contract was executed and delivered. That is to say that he took delivery. This witness is Mr. Prince Basil Wenegieme. Through this witness Exhibits D24 and D25 which are the payment voucher to 3T’s Company for the printing of the security and non-security documents and the contract agreement were tendered. By the finding of the trial Court, the testimony of this witness in defence of the Appellant crumbled by the testimony of PW7, David Aworinde Awotunde, the Managing Director/CEO of 3T’s and Sons Nigeria Enterprise who testified to the effect that the said contract was awarded to his Company for the sum of N9.5 Million Naira. After the deduction of tax and VAT, the sum of N8.2 Million was paid into his Company account, but on the instruction of the procurement
39
Officer Mr. Lawrence Adeosun now a convict, he was directed to pay the said contractual sum into the account of Nowld Global Services Ltd. with the Zenith Bank. He was only allowed to retain the sum of N401,000.00 as running cost. It is his evidence that though his company was paid the sum of N8.2 Million but was at the same time ordered to transfer the proceed of the alleged contract into another account dictated by the procurement Officer. Affirmatively he confirmed that he did not carry out any printing job. Through the instrumentality of PW5 and the procurement Officer the money was shared and the sum of N5,000,000.00 cash was given to the Appellant see page 742 for the testimony of PW5.
Being that as it may, a look at the evidence tendered in defence of the Appellant also materially support the contention of the prosecution. DW2 a Senior Store Officer tendered Exhibits D24 and D25 which are the payment vouchers in favour of the 3T’s Company for the contract not executed by the Company. This piece of evidence was contradicted and destroyed by the evidence of PW7 Mr. David Aworinde who unequivocally said the
40
contract was not executed but the contract sum was credited into his Company account. To buttress his testimony Exhibit EFCC 19 the Revenue receipt for the sum of N401,000.00 left for him as running cost for the role he played in the said alleged contract after he had transfer the sum of N8.2 Million Naira into the account of the Company called Nowld Globla Services Limited as directed by the procurement Officer (Convict).
The defence of the Appellant is contained from pages 769 to 770. All he said is herein under reproduced for purpose of better understanding:
“DW4, Male adult, Moslem speaks English cautioned, affirmed and states as follows: My name is Umar Saidu Bamali. I live at No. 2 Road 35 Gwarinpa Federal Housing Estate Abuja. I am a public servant, a former Director/CEO of the NIMG. I am presently a Deputy Director attached to Ministry of Mines and Steel Development. I know why I am in Court. It is not true that dishonestly (sic) misappropriated the sum stated in Count 1 of the charge. It is not true that I dishonestly misappropriated the said sum mention in Count 2 of the charge. It is not true that I
41
corrected(sic) the sum mentioned in Count 3 of the charge. It is not true that I committed any offence as stated in Count 4 of the charge. I have worked for 29 years with the Civil Service. In those 29 years I have never been issued a query. I have never being punished for any of the Counts in the charge administratively. It is not easy to be a Chief Executive because one has to take decision in the interest of the government and the Civil Service”
Under cross examination, he responded as follows:-
“As Chief Executive/CEO, when I assumed leadership, there was no law as regards approval limit and I was guided by the practice of my predecessors and I had professional department (sic) in Finance who will require any expenditure that is above limit. I have seen Exhibit EFCC 9(a) second page (Read out) I do not have power to viremen funct (sic) meant for a subhead to another head. It is true that the project in Kano was successfully done. There are no monies that entered into private pocket because these individuals were staff. I am aware that there was a contract approved by my management which was above
42
N5M.”
When he was re-examined by his Counsel he said thus:
“Nation there is a difference between a CEO and that of the institution”
Considering the foregoing pieces of evidence and the testimony of the Appellant, there is no justification to fault the finding of the learned trial Judge contained on pages 805-816 and the conclusions on pages 816-822 of the Record of Appeal Vol. 2. By mere saying that the allegations are not true simplicita does not discharge the burden on the accused to rebut the evidence by the prosecution against him. The evidence of the prosecution both oral and documentary are overwhelming weighty and sufficient to establish the guilt of the Appellant in counts 1, 2 and 4 as concluded by the learned trial judge. They are sufficient to discharge the burden of proof placed on the prosecution. The testimonies of the witnesses of the prosecution are clear and unequivocal, unambiguous and all pointing to the commission of the crime by the Appellant. I am not unmindful of the seeming complaint of the Appellant stating that there are contradictions in the evidence of the prosecution.
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I am also not unmindful of the trite position of the law that where evidence produced is at variance with the charge and have been so contradicted in material respect, the Court would not rely on them. See ENAHORO V QUEEN (1965) NMLR 265, SALE DAGAYYA V THE STATE (2006) 1 SC (Pt. ii) 1. The Appellant has not in any way demonstrated any contradictory evidence in the trial. For contradiction to be essential and affect the decision of a trial Court, such contradiction must be material and fundamental in the determination of the guilt of the accused and it must create doubt in the mind of the Court to such a degree that the trial Court will believe that the doubt created will be resolved in favour of the Accused. See OGUNBAYO V THE STATE (2003) FWLR (Pt. 157) 1103 at 1118. In my humble view no contradiction is identifiable in the evidence tendered by the prosecution.
Now, on the Complaint of no proper evaluation of Evidence. It is not in doubt that the duty of a trial Court’s to assess witnesses, form impression about them and evaluate their evidence having regard to the impression formed of the witnesses.
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See DATOEGOEM DAKAT V. MUSA DASHE (1997) 12 NWLR (Pt. 531) 46. Oputa JSC (as he then was) in the case of CHIEF ADEBAYO BASHORUN OLUFOSOYE AND ORS V JOHNSON O. OLORUNFEMI (1989) NWLR (Pt. 95) 26 said thus on evaluation of evidence:-
“There is a duty in a trial Court to receive all available relevant evidence on an issue. That is perception of evidence. After that there is another duty to weigh that evidence in the context of the surrounding circumstances of the case. This is evaluation of Evidence.”
See also the following cases:ADELEKE V IYANDA (2001) 13 NWLR (Pt 719) 1 ADENIJI V ADENIJI (1972) 4 SC 10 CHIEF FALADE ONISAODU AND ANOR V CHIEF ASUNMO ELEWUJU AND ANOR (2006) 13 NWLR (Pt. 998) 517. For the procedure to follow in evaluation of evidence, see the case of ODOFIN AND ANOR V MOGAJI AND ORS. (1978) NSCC 275 at 277, AKINTOLA V BALOGUN (2000) 1 NWLR (Pt. 642) 532 and ANOR (2011) LPELR- 3466.
Bearing the foregoing in mind and upon a sober reading of the record of appeal, volumes 1, 2 and 3, and in particular pages 806 to 822 of the Vol. 2 of the record of Appeal, I am left in no doubt that the learned trial judge
45
properly and meticulously evaluated the evidence placed before the Court before arriving at the conclusion reached that the prosecution has proved beyond reasonable doubt the ingredients of the offences and in compliance with Sections 135, 136(1) and 140 of the Evidence Act. Counts 1, 2 and 4 as charged and properly convicted and sentenced the Appellant. It is the same process the learned trial judge adopted in discharging and acquitting the Appellant in Count 3.
Being that as it may, I have no hesitation in my mind in answering the question posed in issues 2 and 3 in the affirmative. Accordingly, they are resolved against the Appellant.
In consequence thereto, the appeal is devoid of any merit hence it is dismissed in its entirety. The judgment of the High Court of Justice Plateau State holding in Jos in suit No. PLD/J42C/2018 delivered on the 29th day of November, 2019 Coram Hon. Justice D. D. Longji is hereby affirmed.
TANI YUSUF HASSAN, J.C.A.: I am in agreement with the judgment just delivered by my learned brother, MUDASHIRU NASIRU ONIYANGI, JCA from his reasons and conclusions, I am satisfied that there is
46
no merit in this appeal. I also dismiss the appeal.
BOLOUKUROMO MOSES UGO, J.C.A.: I had a preview of the lead judgment of my learned brother MUDASHIRU N. ONIYANGI, J.C.A., and I am in agreement with him that the appeal lacks merit, accordingly I also dismiss it.
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Appearances:
Innocent Lagi Esq. with him A. Aminu Esq. For Appellant(s)
Sir Steve Odiase Esq. For Respondent(s)