CHIEF ARCHIBONG ETIM UDOH & ANOR v. THE STATE (2019)

CHIEF ARCHIBONG ETIM UDOH & ANOR v. THE STATE

(2019)LCN/13601(CA)

In The Court of Appeal of Nigeria

On Monday, the 1st day of July, 2019

CA/C/118C/2017

JUSTICES

MOJEED ADEKUNLE OWOADE Justice of The Court of Appeal of Nigeria

OBANDE FESTUS OGBUINYA Justice of The Court of Appeal of Nigeria

YARGATA BYENCHIT NIMPAR Justice of The Court of Appeal of Nigeria

Between

1.CHIEF ARCHIBONG ETIM UDOH

2.CHIEF EDET EFFIONG EKPO – Appellant(s)

AND

THE STATE – Respondent(s)

RATIO

WHETHER OR NOT A TRIAL IS AN INVESTIGATION

A trial is not an investigation and investigation is not a function of a Court. A trial is the public demonstration and testing before a Court of the cases of the contending parties. The demonstration is by assertion and evidence, and the testing is by cross-examination and argument. The function of a Court is to decide between the parties on the basis of what has been so demonstrated and tested. See also R. V. GABRIEL ADAOJU WILCOX (1961) ALL N.L.R 63; YONGO V. COP (1992) NWLR (PT. 257) 36 SC. PER OWOADE, J.C.A.

WHETHER OR NOT THE PARTY WHO ASSERTS MUST PROVE

The Respondent is perhaps unfortunate that our adversarial system of justice would rather insist that he who asserts must prove. This is embodied in the provision of Sections 131 and 132 of the Evidence Act 2011 and has been so pronounced upon by the Courts. See KOKOROOWO V. OGUNBAMBI (1993) 8 NWLR (PT. 313) 627; BALOGUN V. LABIRAN (1988) 3 NWLR (PT. 80) 66; OLUSESI V. OYELUSI (1986) 3 NWLR (PT.31) 634; JALLCO LTD. V. OWONI BOYS(1995) 4 SCNJ 256. PER OWOADE, J.C.A.

THE PRESUMPTION OF THE INNOCENCE OF AN ACCUSED PERSON

?In particular, at the backdrop of the presumption of innocence guaranteed under the provision of Section 36 (5) of the Constitution of the Federal Republic of Nigeria 1999 (as Amended) and the rule that he who asserts must prove, the general burden of proving the guilt of the Accused rests on the prosecution. See ARCH V. C. O. P. (1959) WRNLR 230 @ 231; WOOLMINGTON V. DPP (1935) A. C. 462; ONAFOWOKAN V. STATE (1987) 3 NWLR (PT. 61) 538; STATE V. AJIE (2000) 7 SC (PT. 1) 24; CHIANUGO V. STATE (2002) 2 NWLR (PT. 750) 225; OCHE V. STATE (2007) 5 NWLR (PT 1027) 214; KIM V. STATE (1992) 4 NWLR (PT. 233) 17; ANI V. STATE (2003) 11 NWLR (PT. 830) 142; IFEJIRIKA V. STATE (1999) 3 NWLR (PT. 593) 59; IGABELE V. STATE (2006) 6 NWLR (PT. 975) 100 SC; OKAFOR V. STATE (2006) 4 NWLR (PT. 969) 1. PER OWOADE, J.C.A.

WHETHER OR NOT REASONS MUST BE GIVEN FOR A DECISION

In the case of AGBANELO V. UBN LTD. (2000) 7 NWLR (PT. 666) 534 @ 537, Karibi-Whyte JSC spoke for the Supreme Court as follows: It is elementary and essential ingredient of the judicial function that reasons are to be given for decision. It is more the case where appeals lie from the decision. In any case, the reasons for decisions enable the determination on appeal whether the decision was merely intuitive and arbitrary or whether it is consistent with established applicable principles. If judgments were to be delivered without supporting reasons it will be an invitation to arbitrariness, a rule of merely tossing the coin and the likelihood to result in judicial anarchy. It is therefore settled that a Court of law, both trial and appellate, must give reasons for any finding of fact or decision. If it comes to believe or disbelieve of a witness, the Court must give reason for believing or disbelieving the witness. See MAJOR BELLO M. MAGAJI V. THE NIGERIAN ARMY (2008) ALL FWLR (PT. 420) P. 603; ILOABACHIE V. ILOABACHIE (2005) 9 NWLR (PT. 930) P. 362; IDAKWO V. NIGERIAN ARMY (2004) 2 NWLR (PT. 857) P. 249; ABACHA V. FAWEHINMI (2002)FWLR (PT. 4) P. 568 and WILLIAMS V. VOLUNTARY FUNDS SOCIETY (1982) 1-2 S.C P. 145. See also OKORO V. STATE (1998) NWLR (PT. 584) P. 181; ALHAJI (DR.) ALIYU AKWE DOMA & ANOR. V. I. N. E. C & ORS (2012) LPELR ? 7822 (SC) and UWEGBA V. A-G; BENDEL STATE (1986) 1 NWLR (PT.16) P. 303. In that respect, to merely recap the testimony of a witness or that of an accused person and then conclude that such witness is or is not, a witness of truth will not suffice. PER OWOADE, J.C.A.

THE PRINCIPLE OF LAW IS THAT SPECULATION HAS NO PLACE IN THE ADJUDICATORY PROCESS

By the same token, speculation, sentiments or suspicion has no place in the adjudicatory process. See JITTE V. OKPULOR (2016) 2 NWLR (PT. 1497) 542 SC; LADOJA V. AJIMOBI (2016) 10 NWLR (PT. 1519) 87 SC; C.A.C. v. I. T. P. C. N (2016) 2 NWLR (PT. 1496) 236; OGBORU V. UDUAGHAN (2013) 13 NWLR (PT. 1370) 33 SC; UNITY BANK PLC V. OLATUNJI (2013) 15 NWLR (PT. 1378) 503. PER OWOADE, J.C.A.

MOJEED ADEKUNLE OWOADE, J.C.A. (Delivering the Leading Judgment): This is an appeal and cross-appeal against the judgment of the High Court of Justice, Akwa Ibom State Holden at Uyo, delivered by His Lordship Hon. Justice Godwin Abraham on the 23rd day of June, 2016.

The Appellant as an Accused Person in the lower Court was charged with other Accused Persons for the offences of stealing contrary to Section 408 of the Criminal Code, Cap. 38, Volume 2, Laws of Akwa Ibom State of Nigeria, 2000, and conspiracy contrary to Section 556 (1)(f) of the Criminal Code, Cap. 38, Volume 2, Laws of Akwa Ibom State of Nigeria, 2000. The Appellant was charged on two counts charges out of the eight count charges preferred against the Appellant and eight (8) others in the lower Court.

At the conclusion of the trial, the Appellant was convicted and sentenced to three (3) years imprisonment with an option of a fine of Fifty Thousand Naira (N50,000.00) only.

?Dissatisfied with the judgment, the Appellant has appealed to this Honourable Court and filed a Notice of appeal on 27th day of July 2016, which Notice contained only the omnibus

grounds of appeal and filed amended grounds of appeal on 09/06/2017.

The Respondent being dissatisfied with the sentence of the trial Court has cross appealed against the sentence and filed a Motion on Notice for an order of extension of time to file a Notice of Cross Appeal on 6th December, 2017. Upon the leave of Court granting the cross-Appellant leave for extension of time to cross appeal on 31st January, 2018, the Respondent filed a Notice of Cross Appeal on 09/02/2018 against the sentence of the Appellant.

The case of the prosecution especially through PW1 and PW2 is that sometimes in 2006, the Akwa Ibom State Government acquired a parcel of land known and called ?Ekpene Akai?, situate at Nung Ette Village, Ibesikpo Asutan Local Government Area for Residential Estates. Before the final acquisition was made, enumeration exercise was carried out on the plot by the State Government vide the Ministry of Lands and Town Planning. During the enumeration of crops at the site, the land owners identified their crops for enumeration. Pw1 and PW2 as indigenes and co-beneficiaries of the proceeds and/or compensation identified their plots

for enumeration of crops personally, and on instruction respectively.

At the end of the enumeration, the project officer; the 9th Accused Person at the trial Court, addressed the land owners and promised to return to the village for verification of genuine owners of farmland/plots in Ekpene Akai/names on the lists of beneficiaries after the computation by the Ministry of Lands and Town Planning. The Project Officer (9th Accused Person) did not return as promised up until payment commenced in 2008 at the Shopping Complex, Uyo, outside the village of Nung Ette.

At the Shopping Complex wherein the payment was undertaken by an Estate Valuer (4th Accused Person at the trial Court), the Appellant and two others, (2nd and 3rd Accused Persons) participated actively in the exercise by reading out the names on the list and identifying these persons for payments.

When PW1 and PW2 noticed anomalies in the payment exercise, a letter was written to the Commissioner of Police, Akwa Ibom State requesting for the investigation of ?Fraudulent activities and embezzlement of the compensation money by the Appellant and other persons?.

In the course of the Police investigation, Exhibit 7 List of Ghost/Fictitious names with monies allocated to them and paid up were discovered in the schedule of payment (Exhibits 2-6) and compiled by the police in the presence of the Appellant and other villagers.

These payment schedules were handled and compensations paid up by designated Estate Valuers. The schedules were verified/confirmed by the Project Officer vide Exhibit 9 in response to Exhibit 8 issued by the Permanent Secretary, Ministry of Lands and Housing in that regard.

The prosecution further alleged that the Appellant received the sum of N2.4 Million vide Exhibit 26 from the 4th Accused at the trial Court, and do go to the 4th Accused to collect monies apart from that of 09/04/2008 and 10/04/2002 paid at the Shopping Centre Uyo. That part of these monies received by the Appellant were shared to different family heads and some part converted by the Appellant and other Accused Persons for their own use.

The case of the Appellant is that the Government of Akwa Ibom State had acquired a vast stretch of farm land running through his village of Nung Ette and at least two other

villages. The authorities had sought his assistance to assist in informing his subjects who owned land in affected area and to create an enabling environment for staff of the Ministry of Lands to organize the affected land owners/users for compensation. The Appellant himself owned vast portions of land at the area. The enumeration and name compilation process was carried out by staff of the Ministry of Lands and professional Estate Valuers in liaison with the individual land owners themselves. Apart from summoning meetings of the villagers and including his name as a land owner, the Appellant played no significant role in both the enumeration and payment process. Hundreds of villagers including PWs 1 and 2 received their compensation money. The Appellant was also paid compensation for the unexhausted improvements on his portion of the acquired land. He also received compensation on behalf of the village council for the village shrines which were earmarked for demolition. The payment process proceeded without hitches until PW2 who had years earlier lost the Village Headship Stool to the Appellant, thereby becoming embittered by such loss, and had openly sworn

to dethrone the Appellant, mobilized policemen to disrupt the payment process by carrying out the arrest of the Appellant, his Village Council Members, the Estate Valuers and some staff of the Ministry of Lands. None of the beneficiaries had complained of non payment. Neither did the prosecution field as witness any beneficiary who purportedly was not paid his compensation money as a result of any alleged omission or commission on the part of the Appellant.

The prosecution in proving its case called three (3) witnesses (PW1, PW2 and PW3) and tendered a total of 26 Exhibits. The Appellant testified as DW1 and tendered only one Exhibit.

The learned trial Judge concluded his judgment on page 626 of the Records that:

I hold however that in respect of count 1, the prosecution has proved beyond reasonable doubt that the 1st accused person had stolen the sum of N750,250.00 which was part of the money he had signed and collected as compensation for Nung Ette Village and converted to his use. The 1st accused person is found guilty of stealing under Section 408 of the Criminal Code accordingly and in (sic) is hereby convicted.

The reasoning of the learned trial Judge in coming to the above conclusion in relation to the appellant could be found from pages 618-621 of the Record of appeal. First, at pages 618-620, the learned trial Judge found:

(1) The evidence produced by the prosecution has shown very clearly that in the process of enumeration over 600 fictitious names were included in the list of those who owned unexhausted development on the acquired land for purposes of payment. There is evidence that various amounts of money were ascribed to the fictitious names. This is borne out by the evidence that the fake names have established by the police and the officials of ICPC with the participation of the entire village. This has not been denied by the accused persons. The list of the fictitious names was tendered as Exhibit 7 tendered in Court. The 3rd accused person in his statement to the police confirmed this. He stated as follows

It is true that fictitious names were also written and submitted to the Valuers, these fictitious names were given to all the family heads. The village was quite aware of the fictitious names and the manipulation of figures.

Exhibit 7 contains about 45 names of people who were listed but had been dead. The total amount of money involved in this fake list is N468,950.00 and fictitious names were enlisted by the family heads with the knowledge of the 1st accused person i.e the village head. It must however be proved whether compensation was paid in respect of the fictitious names and whether the accused persons were involved.

Pw1 and PW2 gave evidence to the effect that the 1st Accused persons had no plot of land in the vast area of land called Edem Akai which Government acquired but that the 1st Accused fraudulently included his name among those who owned plots and obtained huge sums of money. They also alleged that 1st Accused collected compensation in respect of persons who were dead and non-existent.

Second at pages 619-620 of the Records that:

(2) The 1st Accused person in his evidence said he had 19 plots of land in the acquired area but that account was taken only in respect of 16 plots. He said he was waiting for enumerators to come back to enable him take account of the remaining plots. There is evidence that the 1st Accused person collected various sum of money both for

himself and in respect of others. Under cross-examination when he was asked why his name appeared in 44 places for payment when he had only 19 plots. His answer was that the schedule was drawn up not in accordance with the number of plots but as per the number of crops. The answer given by the 1st Accused person in my view is most unreasonable. It is unbelievable that a Valuer will enter the name of a Claimant per number of crops. That would mean if a person has one thousand stands of cassava tuber or maize his name will be listed one thousand times. My view is that the 1st Accused Person was telling lies.

?Again, under cross-examination by the State Counsel, the 1st Accused was asked if he knows Nkoyo Okon Okobo, Nsehehe Okon Effion and Alfred Sunday Edem. The 1st Accussed said he does not know them. He only admitted to have known Ekebo Archibong Udo as his son. Incidentally, in Exhibit 3, the 1st Accused person signed against these persons he said he did not know and collected money as compensation in the place where he signed and collected money in respect of Ekebo Archibong Udo that the 1st Accused said is his son. That evidence clearly shows that

the 1st Accused Person received compensation in respect of persons who were non-existent.

Still under cross-examination the 1st Accused Person?s attention was drawn to where he signed Exhibit 2 at serial No. 134 and collected money in respect of one Emmanuel Archibong Etim. The 1st Accused could not explain how he had to sign against that name. I observed his demeanor in Court and the conclusion I can reach is that he signed and collected money using that name fraudulently.

I have found as a fact that some of the names against which the 1st Accused person signed and collected money are listed in Exhibit 7 among the fictitious names.

Third on page 620 of the Records that:

(3) There is evidence that the 1st Accused Person was paid in cheque the sum of N2,404,750.00 on behalf of the village of Nung Ette under what is referred to as Abortive expenses. The evidence has shown that the 1st Accused person receive a total of N4,865.000.00 for the village. This is shown in Exhibit 4 and he also admitted it during cross-examination. When he was asked why the cheque was for only N2,404,750.00 when he collected over N4.8 Million, the 1st

Accused answered that it was the 4th Accused person who paid the 1st Accused who decided to write it that way. The 4th Accused person who paid him this money tried to patch up this matter in his evidence by saying he paid the 1st Accused partly by cheque and partly by cash. Whatever was the mode of payment, the truth is that the 1st Accused person collected over N4.8 Million on behalf of the village and has only been able to account for about N2.4 Million. Specifically, the 1st Accused person has not accounted for N12,460,250.00 of the amount he collected on behalf of the village. He never mentioned where the money is. Instead, I received evidence from the 3rd Accused person that they deliberated at the Council whether to share the N2.4Million or use same for development projects in the village.

Fourth and finally on pages 620-621 of Records the learned trial Judge concluded his findings on the Appellant (1st Accused) as follows:

(4) The 3rd Accused person said the sum of N171,000.00 was shared to each family for development purposes. He said the money was lodged in the bank. He said he does not know where the money is: There is no evidence that

any such money was lodged in the bank. Only the cheque of about N2.4 Million was lodged in the bank. My view is that the 1st Accused person shared part of the money between himself and some family heads and the same was converted to their personal use. Even if the 1st Accused person legitimately gave out N171,000.00 to each of the 10 family heads, this will amount to N1,710.000.00. The 1st Accused would still not be able to account for N750,000.00. I believe that the 1st Accused person acted fraudulently when he received compensation on behalf of the village and converted it to his personal use.

As earlier mentioned, dissatisfied with this judgment, the Appellant at first filed a Notice of appeal containing only the omnibus ground of appeal on 27/07/2016 and on 09/06/2017 filed an Amended Notice of appeal containing five (5) grounds of Appeal.

THE APPEAL

The relevant briefs of Argument for the main appeal are:

1. Appellant?s brief of Argument dated 29/01/2018 and filed on 31/01/2018. It is settled by Imeh Atang Jnr.

2. Respondent?s brief of Argument dated 09/03/2018 was filed on the same date. It is settled by

Uwemedimo Nwoko, Esq., Attorney General and Commissioner for Justice, Akwa Ibom State.

3. Appellant?s Reply brief of Argument dated 12/11/2018 but was deemed filed on 07/05/2019. It is settled by Imeh Atang Jnr.

Learned counsel for the Appellant distilled four issues from the Amended Notice and Grounds of Appeal. They are:

i. Whether upon a sober review of the evidence laid before the Trial Court, it could be said that the Trial Court properly evaluated the evidence to warrant convicting the appellant? (Ground 2 & 5)

ii. Whether it could be said that with the strength of evidence adduced before the Trial Honourable Court, the prosecution had proved their case against the 1st Accused person/Appellant beyond reasonable doubt so as to justify the conviction of the Appellant especially in the face of the material contradictions that riddled the prosecution?s case? (Ground 3)

iii. Whether the Trial Court was to have convicted the Appellant on the admission of the Co-Accused even when the Appellant was not confronted with such admission? (Ground 4)

iv. Whether the Trial Court?s verdict was not

unreasonable having regard to the evidence adduced before the Court during the trial? (Ground 1)

Learned counsel for the Respondent also formulated four issues for the determination of the appeal but couched differently from that of the Appellant. They are:

i. Whether the Trial Court properly evaluated the evidence laid before it before convicting the Appellant?

ii. Whether the prosecution had proved its case against the 1st Accused/Appellant beyond reasonable doubt?

iii. Whether the Trial Court was unreasonable in the face of the evidence adduced at the trial?

iv. Whether the conviction of the Appellant by the Trial Court was premised on the admission of a Co-Accused?

By issue one, learned counsel for the Appellant contends that the trial Court did not properly evaluate the evidence laid before it, and that if the evidence was properly evaluated, the irresistible conclusion would have been a return of not guilty verdict In favour of the appellant. He submitted that the Honourable Trial Court erred in law when it held in its judgment at page 626 of the Records that:

The prosecution had proved beyond reasonable

doubt that the 1st Accused had stolen the sum of N750,000.00 which was part of the money he signed and collected as compensation for Nung Ette Village and converted same to his use. The 1st Accused person is found guilty of stealing.

He submitted that the trial Court failed to explain in its judgment how it arrived at the said stolen amount which it put at N750,000.00 of which it convicted the Appellant of stealing. Appellant?s counsel submitted that there is neither an evidential, logical or arithmetical co-relation between the evidence adduced before the trial Court and the verdict reached by the said Court that the Appellant stole and converted to his use the sum of N750,000.00 which was part of the money he had signed and collected as compensation for Nung Ette Village. He submitted that the law is now firmly established that the decision of a Court must not be arbitrary, but anchored on sound reasoning and conclusion. On this, appellant?s counsel referred to the decision of the Court of Appeal per TSAMMANI, JCA in the case of BAKARE V. STATE (2017) LPELR (CA) PP. 33-34

He submitted that in view of the fact that the trial Court did

not give reason(s) for believing or disbelieving the Appellant and or indeed the witnesses, the trial Court, ought to be set aside. Yet again, said counsel, the Appellant was standing trial along with others for stealing the sum of N7,265,000.00 on count one of the charge. He submitted that the trial Court has stated in its judgment at page 620 of the Records that:

Whatever was the mode of payment, the truth is that the 1st Accused person collected over N4.8 Million. Specifically, the 1st Accused person has not accounted for N12,460,250.00 of the amount he collected on behalf of the village and has only been able to account for about N2.4 Million. He never mentioned where the money is.

Appellant?s counsel submitted that the above reasoning again, does not add up to the conclusion that the Appellant stole the sum of N750,000.00 for which the Court convicted him or any money at all.

The Appellant, said counsel, admitted signing for and receiving monies paid to the village with respect to the shrines housing the village deities in the acquired forest land but that he presented same before the village council and that such monies were used

for the development of the village. That, though the PW1 and PW2 claimed that there were no shrines on the land in question, PW1 however admitted at page 482 of the Record that between him and the appellant, the appellant was in a better position to know the village shrines. The Appellant?s piece of evidence concerning the use of such money was not contradicted. Also, that at page 524 of the Records, the Appellant answered during cross-examination thus: ?the shrine money was paid to me because I am the custodian of the shrine. I am the person who sacrifices to the shrines. We use the money to serve the shrines.?

He submitted that in holding that the Appellant failed to account for the monies he received on behalf of the village, the trial Court completely ignored the Appellant?s evidence at page 523 of Records that:

Before my suspension monies coming into the village were (sic) paid to me. I as pay (sic) the money to the village council where we have the Chairman, Treasurer and Secretary. Such monies are used for the development of the village such as payment of staff of the Community Secondary School, provision of laboratory

and water projects. We also expand existing road and open new ones. The Community Secondary School was built by me and the village council.

He submitted that the above piece of evidence, being unchallenged ought to have been believed and admitted with minimal proof by the trial Court. After referring on the above to the decision of the Court of Appeal, Calabar Division per Omokri, JCA (of blessed memory) in the case of EYO V. THE STATE (2009) LPELR ? 8686 (CA) PP 25-26 on the above, Appellant?s counsel submitted further that during cross-examination of the appellant at page 529 of the Records, he was asked whether he knew Nkoyo Okon Okobo, Nsehe Okon Effiong and Ekebo Archibong Udo. That the Appellant answered:

I do not know one Nkoyo Okobo. I do not know one Nsehe Okon Effiong. I know Ekebo Archibong Udo. He is my son.

That when asked that he collected money on behalf of these people, he maintained ?I did not sign and collect compensation for Nkoyo Okon Okobo, Nsehe Okon Effiong and Ekebo Archibong Udo?. That when counsel put it to him thus: ?I put it to you that you signed and collected money in respect of

the above names? the Appellant answered and maintained ?I did not?.

Learned counsel to the Appellant submitted that the trial Court did not state any reason(s) as to why and how it came to the conclusion that the signature referred to in Exhibit 3 relied upon by the trial Court were indeed that of the Appellant. That it was necessary to have critically examined the said signature (especially in the face of a similar denial of signature by PW@2 at page 491 of the Record of appeal). He reasoned that the conclusion that the signature is that of the Appellant does not flow from the premises of the available evidence before the Court.

Appellant?s counsel again referred to the decision of the Court of Appeal, Calabar Division per Elechi, JCA in the case of PASTOR UDO UDO V. SIR JUDE E. N. EKPO & ANOR (2016) LPELR ? 41183 (CA) on the need to give reasons in any judgment and concluded on issue one that the decision of the trial Court was not supported by reason or evidence either in law or in fact and ought therefore to be set aside.

?In answer to Appellant?s issue one, learned counsel repeated the facts of the

case especially from the perspective of the Respondent. He reviewed the findings of the learned trial Judge as stated on pages 619-624 and 626 of the Record of Appeal. Respondent?s counsel submitted that evidence abound that the Appellant received a huge sum of money on behalf of Nung Ette Village as the village head then, fraudulently converted same to his use and could not account for these monies particularly the sum of N750,000.00. He submitted that the available uncontradicted evidence on print record against the appellant clearly shows the evidential, logical, mathematical co-relations between the evidence adduced before the trial Court and the verdict reached by the trial Court.

Respondent?s counsel went further that assuming without conceding that, the reasons given by the learned trial Judge was insufficient, his failure to give reasons for his decision cannot ipso facto invalidate an order made by him except where it has occasioned a miscarriage of justice. On this, Respondent?s counsel referred to the cases of IGBINIGIE V. YUSUF (1993) 2 NWLR (PT. 274) 209 @ 329; WAZIRI V. WAZIRI (1998) 1 NWLR (PT. 533) 322; ABAYE V.OFILI

(1986) 1 NWLR (PT. 15) 134.

He submitted that PW1 and PW2?s evidence that there were no shrines in Ekpene Akai land was not contradicted at all, and the fact that PW1 may have admitted that the Appellant was in a better position to know the village shrines is of no moment and cannot make for the non-existence of the shrines. He added that the Appellant did infact contradict himself as per the use for which the money for the shrines was put in his evidence. That during his cross-examination as in page 526 of the Records, the Appellant stated that the cheque of N2.4 Million paid to him was handed over to the village council and further paid into the village account. That there is also evidence to the contrary that the money was shared to the family heads.

?Learned counsel for the Respondent further submitted that the Appellant denied knowledge of one Nkoyo Okon Okobo, Nsemeke Okon Effiong and Alfred Sunday Edem, except Ekebo Archibong Udo whom he claimed was his son, but that he forgot to mention him among his ten children earlier on. Also, that evidence disclose that the Appellant signed and collected monies allocated to these persons as

per Exhibits 2, 3 and 4 in this case. That the Appellant in page 526 of the Records had earlier on admitted 44 signatures represented in Exhibit 2, 3, and 4 as his own. These signatures include the names of persons that the Appellant had denied he signed and collected their money. That it was not necessary for further examination of the signatures by the Court. And the conclusion that the signatures belong to the Appellant cannot be faulted.

In his reply brief, learned counsel for the Appellant in relation to issue one, amongst other things, questions the genuineness of Exhibit 7 given the ?haphazard and arbitrary way it was compiled?. That while giving evidence of how Exhibit 7 was utilized, the police IPO (Pw3) said at page 498 of Records:

When we read out the names, we discovered that over 660 names were ghost names or fictitious names. The way we know the fictitious names was when we read the names that were fictitious and the villagers would boo and say there is no such name in the village.

That when cross-examined as to whether he had investigated beyond the alleged ?booing? as to ascertain whether those names were

actually fictitious or fake or to rule out the possibility that they may have been members of the village that were not well known in the village, the police IPO (PW3) answered thus at page 507 of the Record:

Not all members of the village were present. I did not cite the population data of the village. Apart from there I had no other evidence that those persons were non-existent.

Still on Exhibit 7, learned counsel for the Appellant submitted that the authorship of Exhibit 7 is clearly stated on page 4 thereof and it is no other person than the PW1 Major B. E. Etim (KSJ) who signed as secretary. This according to counsel was confirmed by DW4 who stated at page 544 of the Record:

I have seen Exhibit 7. It was prepared by PW1. I have seen page 4 of Exhibit 7. I have seen the name of PW1 written there. ICPC did not come to Nung Ette to investigate whether the names in Exhibit 7 were actually ghost names.

He submitted that Exhibit 7 over which the Respondent had made heavy weather was actually compiled by the accuser Major Benedict Etim PW1 and handed over to the ICPC and not compiled by the ICPC nor the police as the Respondent would have us

believe. He submitted that the prosecution gave contradictory evidence as to how, when and who compiled Exhibit 7. That while PW1 claimed at page 471 of the Record that it was the 1st, 2nd, 3rd and 6th Accused persons that compiled Exhibit 7, the police IPO testifying in Court said at pages 478, 487, and 507 of the Record that it was the police that compiled Exhibit 7, guided only by the sound of booing villagers.

He submitted that Exhibit 7 is a tenuous and doubtful piece of evidence and it will be dangerous and reckless for any Court of law to rely on it to convict an accused person as the trial Court did in the instant case.

He submitted that apart from the fact that the prosecution did not proffer any evidence to prove that the Appellant did convert any part of the compensation money meant for the village or other beneficiaries to personal use in his extra judicial statement (pages 17-19 of the Record) as counsel seems to wrongly insinuate. He added that assuming that any of the co-accused did make any such admission in their statement, it was wrong for the Court to have relied on any such purported extra judicial confession to convict the

Appellant. On this, Appellant?s counsel referred to the cases of AKINBOLADE V. THE STATE LN-E-LR/2015/1 CA and SUBERU V. STATE (2010) 8 NWLR (PT. 1192) 586.

The Court, said counsel, had held that the Appellant received N2,404,750.00 by cheque on behalf of the village and he legitimately shared N171,000.00 to each of the ten family heads making a total of N1,710,000.00 and was left with N750,250.00 which he then stole and converted to his personal use.

Counsel submitted that apart from the already stated and obvious fact that the above is a mathematical absurdity in that N2,404,750.00 less N1,710,000.00 does not result to N750,250.00 which the Court held that the Appellant stole and convicted him of stealing. Also, that the evidence of the 3rd Accused person who testified as DW4 and which the Court relied on to reach the erroneous conclusion contained on page 541 of the Record did not say or even insinuate that the Appellant had anything to do with the payment and/or sharing of N171,000.00

?Appellant?s counsel submitted that it beats imagination on how the learned trial Judge reached the conclusion that it was the Appellant who shared

this money from the N2,404,750.00 and then stole a supposed balance of N750,250.00 for which the Court convicted him.

Finally in relation to his reply on issue one, Appellant?s counsel submitted that the documentary evidence in Exhibit 29 shows that the N2,404,750.00 part of the Appellant was convicted for stealing has never been withdrawn from the village account at all times material to this case. That therefore, the Appellant who is not even a signatory to that account could not have stolen the N2,404,720 or any part of it as wrongly held by the Court.

He concluded relying on the cases of AUGUSTINE THOMPSON EBEM V. SUNDAY NSEYEN (2016) LPELR-401 22 (CA); UBN V. OZIGI 91994) 3 NWLR (PT. 333) 385 and BABATUNDE V. MODEL INDUSTRIES NIG. LTD (2004) 9 NWLR (PT. 879) 614 @ 627 amongst others that where as in the instant case, a trial Court is left with only the oral testimonies of the parties but as well as documentary evidence which tell same story, it is the law that the veracity of the oral testimony be tested against the documentary evidence which is evidence of a permanent nature.

?It is pertinent in resolving Appellant?s issue one

to start from some of the specific points raised in between the parties before going into more general points. For example, Exhibit 7 which much reliance was placed by the Respondent and the learned trial Judge as against the Appellant is a document titled ?Nung Ette Ibesikpo Land Compensation Fraud ? Fictitious/Ghost Names ? Schedule 1-5? containing serial Nos/No on payroll- Names ? Amount.

The said document was tendered without objection by PW1 as a document obtained from the custody of ICPC. However, an examination of the document reveals that it lies against itself and even if it were erroneously admitted in evidence, no reasonable Court ought to attach probative value to it and in the circumstances becomes too weightless to ground the conviction of the Appellant. Indeed, the document was prepared by PW1, the Appellant?s accuser but, bears a CTC Stamp of the Petition Registry of the ICPC, thereby camouflaging as if it were a document which originally emanated from the ICPC when in fact according to DW4, the ICPC never visited Nung Ette Village. The IPO (PW3) claimed to have utilized the document by calling out names

in the village but admitted under cross-examination that ?not all members of the village were present. I did not cite the population data of the village. Apart from there, I had no other evidence that those persons were non-existent?.

Second, in paragraphs 4:10 -4:11 of his brief of Argument, learned counsel for the Respondent claimed that –

The Appellant in page 526 of the Records had earlier admitted the 44 signatures in Exhibit 2, 3, and 4 as his own. These signatures include the names of persons that the Appellant had denied he signed and collected their money The Appellant?s denial as in lines 4:16-4:18 of their Brief is of no moment. The Appellant categorically admitted to the 44 signatures as his own and it was not necessary for further examination of signatures by the Court ?

In paragraphs 4:16 ? 4:19 of the Appellant?s Brief of Argument, the learned counsel brought out from page 529 of the Records at cross-examination the insistence by the Appellant that ?I did not sign and collect compensation for

Nkoyo Okon Okobo, Nsehe Okon Effiong and Ekebo Archibong Udo?. At page 526 of the Record, referred to by the learned counsel for the Respondent, the only related evidence to the above by the Appellant is as contained in paragraph 4 of the said page 526 as follows:

I signed the compensation for myself and my family members. I have seen Exhibit 2 at p. 5 serial No. 134 the signature there is mine. The name against the signature is Emmanuel Archibong Etim. By reason of my signature in Exhibits 2, 3 and 4. The 44 signatories were I signed and collected compensation had to do with the number of crops and not plots. I have not accepted that each column represents each plot.

It is clear to me that there is no suggestion in the above paragraph by the Appellant that contradicts the statement of the Appellant at page 529 of Records that ?I did not sign and collect compensation for Nkoyo Okon Okobo, Nsehe Okon Effiong and Ekebo Archibong Udo?.

?It then behoves on the Respondent as suggested by the learned counsel for the Appellant to have critically examined the said signature and therefore the conclusion that the signature is that of the

Appellant does not flow from the premises of the available evidence before the Court. In the first place, there were no comparisons of signatures carried out in the trial. Secondly, none of the alleged beneficiaries to the compensation fund was ever called to testify for the prosecution.

The first implication of my above observation is that the demonstration and comparison of signatures vis-a-vis Exhibits 2, 3, and 4 was not done in open Court for the benefit of the Appellant. This is not proper. As it has been pointed out by Bate J. in MUHAMMADU DURIMINIYA V. COMMISSIONER OF POLICE (1992) N.N.L.R 70 @ 73-74;

See also R. V. GABRIEL ADAOJU WILCOX (1961) ALL N.L.R 63; YONGO V. COP (1992) NWLR (PT. 257) 36 SC.

In the DURIMINIYA?s case (Supra), it was held that entries in books of account which had not been the subject of oral evidence or examined in Court were not in evidence and that the defect could not be cured by an examination of the book by the trial Court outside the Court proceedings. It is not part of the duty of the trial Court to do cloistered justice by making an inquiry to a case outside Court, not even by the examination of documents which are in evidence, but which have not been examined in Court. Whatever the Judge discovers as a result of such inquiry or examination will not be judicial evidence.

The second implication of my said above observation is that the insistence that the evidence of the Appellant on page 529 of the Record that he did not sign and collect compensation in respect of the above names remains unchallenged and uncontradicted and ought to be acted upon. See N.B.A V. OJIGHO (2015) 15 NWLR (PT. 1481) 186; ZUBAIRU V. STATE (2015) 16 NWLR (PT. 1486) 504 SC; C.B.N V. OKOJIE (2015) 14 NWLR (1479) 231 SC; KAYILI V. YILBUK (2015) 7 NWLR (PT. 1457) 26 SC; PIUS V. STATE (2015) 7 NWLR (PT. 1459) 628 SC.

The third important point in relation to issue one is

the finding of the learned trial Judge at pages 619-621 of the Record that:

?whatever was the mode of payment, the truth is that the 1st Accused person collected N4.8 Million. Specifically, the 1st Accused person has not accounted for N12,460.250 of the amount he collected on behalf of the village. He never mentioned where the money is, instead I received evidence from the 3rd Accused person said the sum of N171,000.00 was shared to each family for development purposes. He said the money was lodged in the bank. He said he does not know where the money is, there is no evidence that any such money was lodged in bank, only the cheque of about N2.4 million was lodged in bank…

As against these findings by the trial Court, the Appellant witnessed at page 523 of the Record in part as: Before my suspension monies coming into the village was paid to me as the Village Head. I was pay the money to the village council where we have the Chairman, Treasurer and Secretary. Such monies are used for the development of the village such as payment of staff of the Community Secondary School, provision

for laboratory and water projects. We also expand existing road and open new ones. The Community Secondary School was built by me, and the village council.

When the findings of the trial Judge referred to on pages 619-621 of the Records is juxtaposed with the above testimony of the Appellant as contained on page 523 of the Record, the impression one gets is either that the learned trial Judge was not interested in considering and or evaluating the evidence of the Appellant alongside with those of the prosecution witnesses or perhaps that the trial Court simply expects the Appellant to prove his innocence.

?In particular, at the backdrop of the presumption of innocence guaranteed under the provision of

Section 36 (5) of the Constitution of the Federal Republic of Nigeria 1999 (as Amended) and the rule that he who asserts must prove, the general burden of proving the guilt of the Accused rests on the prosecution. See ARCH V. C. O. P. (1959) WRNLR 230 @ 231; WOOLMINGTON V. DPP (1935) A. C. 462; ONAFOWOKAN V. STATE (1987) 3 NWLR (PT. 61) 538; STATE V. AJIE (2000) 7 SC (PT. 1) 24; CHIANUGO V. STATE (2002) 2 NWLR (PT. 750) 225; OCHE V. STATE (2007) 5 NWLR (PT 1027) 214; KIM V. STATE (1992) 4 NWLR (PT. 233) 17; ANI V. STATE (2003) 11 NWLR (PT. 830) 142; IFEJIRIKA V. STATE (1999) 3 NWLR (PT. 593) 59; IGABELE V. STATE (2006) 6 NWLR (PT. 975) 100 SC; OKAFOR V. STATE (2006) 4 NWLR (PT. 969) 1.

In all of these review of the salient pieces of evidence in the case on appeal, the learned counsel for the Appellant would be perfectly right to say that the Court below did not give reasons for his judgment, that the evidence offered by the parties was not properly evaluated or perhaps to say that the conclusion of the trial Court was based on speculation. This to my mind is saying the same thing for either of the reasons the judgment would be held to be perverse and

ought to be set aside.

In the case of AGBANELO V. UBN LTD. (2000) 7 NWLR (PT. 666) 534 @ 537, Karibi-Whyte JSC spoke for the Supreme Court as follows:

It is elementary and essential ingredient of the judicial function that reasons are to be given for decision. It is more the case where appeals lie from the decision. In any case, the reasons for decisions enable the determination on appeal whether the decision was merely intuitive and arbitrary or whether it is consistent with established applicable principles. If judgments were to be delivered without supporting reasons it will be an invitation to arbitrariness, a rule of merely tossing the coin and the likelihood to result in judicial anarchy. It is therefore settled that a Court of law, both trial and appellate, must give reasons for any finding of fact or decision. If it comes to believe or disbelieve of a witness, the Court must give reason for believing or disbelieving the witness. See MAJOR BELLO M. MAGAJI V. THE NIGERIAN ARMY (2008) ALL FWLR (PT. 420) P. 603; ILOABACHIE V. ILOABACHIE (2005) 9 NWLR (PT. 930) P. 362; IDAKWO V. NIGERIAN ARMY (2004) 2 NWLR (PT. 857) P. 249; ABACHA V. FAWEHINMI (2002)

FWLR (PT. 4) P. 568 and WILLIAMS V. VOLUNTARY FUNDS SOCIETY (1982) 1-2 S.C P. 145. See also OKORO V. STATE (1998) NWLR (PT. 584) P. 181; ALHAJI (DR.) ALIYU AKWE DOMA & ANOR. V. I. N. E. C & ORS (2012) LPELR ? 7822 (SC) and UWEGBA V. A-G; BENDEL STATE (1986) 1 NWLR (PT.16) P. 303. In that respect, to merely recap the testimony of a witness or that of an accused person and then conclude that such witness is or is not, a witness of truth will not suffice.

In the case of ABUBAKAR V. YAR?ADUA (2009) ALL FWLR (PT. 457) 1 @ 156, the Supreme Court per Tobi JSC held that ?A Court of law can only pronounce judgment in the light of evidence presented and proved before it. A Court of law cannot go outside the evidence presented and proved before it embarking on a voyage of

discovery in search of other evidence in favour of the parties?.

In the circumstance, I agree with the learned counsel for the Appellant on issue one that on a sober review of the evidence presented before the trial Court, it could not be said that the Trial Court properly evaluated the evidence to warrant convicting the Appellant.

On issue two, Appellant?s counsel submitted that it was wrong for the Trial Court to have convicted the Appellant relying on such contradictory testimony of the prosecution or in spite of such contradictions. That it is wrong and the Honourable Trial Court erred in law when it held at page 618 of the Records that:

(1) Exhibit 7 contains about 45 names of people who were listed but had been dead. The total amount of money involved in this fake list is N464,950.00 and fictitious names were enlisted by the family heads with the knowledge of the 1st Accused person i.e the village head. There is uncontroverted evidence that the fake names have established by police and the officials of ICPC with the participation of entire village. This have not been denied by the accused persons. The fictitious names was

tendered as Exhibit 7 tendered in Court.

He submitted that the prosecution through its PW1 gave a contradictory and thus doubtful evidence concerning who compiled the names of the witnesses and as to whether the names were genuine or not.

At page 462 of the Records, PW1 said during his evidence in Chief concerning the compilation of the names of the owners of the parcels of land at the acquired land:

The compilation of the names of the owners of the parcels of land was done directly by the 9th Accused person and other officials he came with.

He added at page 466 of the Record:

We are also served a letter from the office of the 9th Accused person confirming that the names are genuine.

However, PW1 contradicted himself at page 478 during cross examination

The 1st, 2nd, 3rd and 6th accused complained (sic) Exhibits 2-7 because they have knowledge of the computations. The lists were compiled by them.

He added on the same page:

I said that the geniuses (sic) of Exhibits 2-7 were found to be true. The village of Nung Ette were found to be very satisfied with the enumeration of the plots in Nung Ette by the government

officials.

Evidence concerning who compiled the names and whether the lists were confirmed genuine is material evidence in the case because it is the case of the prosecution that the list was fraudulent and that the 1st Accused/Appellant stole by virtue of the fraudulent list.

Contradictory evidence from the prosecution on a material issue to wit: whether the 1st Accused person compiled the names gave rise to doubt which must be resolved in favour of the Appellant. This principle has been so frequently stated and now permanently entrenched in our jurisprudence and practice.

He submitted that the law is trite that contradictions and inconsistencies in the evidence of witnesses are material to the proof of ingredients of a criminal offence are fatal to the case against an accused person. He referred on this to the cases of NWANGWA & ORS V. THE STATE (1997) LPELR ? 6315 (CA) per Rowland JCA. EGHAREVBA V. COP (2013) LPELR ? 21031 (CA) Ogunwumiju JCA; ATIKU V. STATE (2010) 9 NWLR (PT. 1199) 241 @ 252; EKE V. STATE (2011) 3 NWLR (PT. 1235) 589 @ 593.

He submitted further that the testimonies of the prosecution witnesses are

inconsistent and contradiction-ridden. Their evidence is frontally opposite and contradictory to each other which the Court is bound to reject to the fatality of the prosecution. He referred to the cases of JERRY IKUEPENIKAN V. THE STATE (2011) 449 @ 451; OGOALA V. STATE (1991) 2 NWLR (PT. 175) 509; AUGUSTINE ONUCHUKWU & 2 ORS V. STATE (1998) 4 NWLR (PT. 547) 576; AKOSILE V. STATE (1972) 5 SC 332.

Appellant?s counsel submitted further that the prosecution did not prove their case against the Appellant beyond reasonable doubt as required by law. He submitted that during cross-examination of the PW3, the investigating Police Officer (IPO) at page 507 of the Records, he was asked whether he had any evidence to convincingly show that those names the prosecution alleged to be fictitious names were actually ghost names or fake names. PW3 answered ?Apart from there (sic)I had no other evidence that those persons were non-existent?.

Further, during cross-examination, PW1 when asked at page 481 of the Records whether he knew all the indigenes of Nung Ette answered thus ?in terms of population, I did not know how many people were in

Nung Ette during the enumeration exercise. There are some indigenes on nung Ette who do not live in Nung Ette.?

During examination in chief and cross examination of the 1st Accused person, he said at page 523 of the Records ?I did not participate in the enumeration of names of the beneficiaries. I do not know how that is done.? At page 525 of the Records, during cross-examination by the Learned State Counsel, the 1st Accused person maintained his stand that he never took part in compilation of names. He said:

I did not take part in the compilation of names. I did not witness the compilation of names.

He said there is nothing in the evidence to show that it was the 1st Accused person that compiled the names for the compensation. Also, that the trial Court ignored the evidence of PW2 wherein he stated at page 496 of the record in answer to cross-examination questions concerning the presence of names of deceased persons on the lists of the land owners.

I do not know if the names of those included in the list but who are dead had portions of land when they were alive. Our late village head had a plot in the acquired area.

Another dead persons Essien Akpan Major had a plot there?Essien Akpan, Mkpong also had children who are still alive. I do not know if their properties have been petitioned (sic) partitioned among the children. If the property of a man is not partitioned I do not know which of the children?s names would be used in respect of payment of compensation on the property.

PW2 further went on to say that he did not know whether in such situation when the patriarch of a family was deceased and his property (estate) was yet to be partitioned amongst his survivors the name of the deceased would be used. This evidence indicates the uncertainty of the claim by the prosecution of the presence of the names of alleged dead persons on the list was fraudulent.

?PW2 admitted at page 495 of the record during cross ?examination that he did not know everybody in Nung Ette while at page 568 of the record DW10 whose evidence the prosecution did not challenge by cross-examination testified that she was someone who came in from Nung Udoe (outside Nung Ette) to lease land for farming and that her name was included in the list of beneficiaries

and she received compensation because she had cultivated the leased land even though she did not own the land.

Thus, said counsel, considering the quality or standard of evidence presented by the prosecution in this case, vis–vis the contradictions, prevarications and inconsistencies of the evidence before the Honourable Court, can it be said that the prosecution had proved its case beyond reasonable doubt that could result in the conviction of the Appellant? The answer, said counsel, is No. This is particularly because there is no evidence before the Court which has identified the Appellant with the offence as charged. In criminal cases, conviction can only be based on proof beyond reasonable doubt and not on suspicion or speculation. He referred to DELE GABRIEL V. THE STATE (2010) 6 NWLR (PT. 1190) 280 @ 295 H. 20.

?He submitted that the burden of proof is on the prosecution to prove the guilt of the Accused person beyond reasonable doubt. He who asserts that someone has committed an offence must prove same beyond reasonable doubt. He referred to Section 135 of Evidence Act 2011. This burden or onus of proof is always on the prosecution. The

burden does not shift on the Accused. He referred to the case of AIGBADION V. STATE (2000) 77 LRCN 820 @ 826 @ P. 844 F.

The burden on the prosecution and the proof is beyond reasonable doubt. Where, as in this case, the prosecution has failed to prove an essential ingredient, an accused person is entitled to acquittal. Such an accused person is entitled to be given the benefit of doubt and have the doubt raised appertaining thereto resolved in his favour. This is more so because in the instant case, the prosecution has failed to establish that the Appellant committed the alleged offence.

He further submitted that in view of the fact that the lists had names of some beneficiaries who were not from Nung Ette and may not have been known to the generality of Nung Ette people including PWs except persons from whom they leased or bought land, the presence of such names which could not be identified by PWs 1 and 2 does not mean that such persons were ghost names or fraudulently included in the list. He urged us to resolve issue two in favour of the Appellant.

?Learned counsel to the Respondent in answer to the above, submitted that, what the

Appellant?s counsel terms to be contradiction in Pw1?s evidence vis–vis the compilation of names of beneficiaries in this case, and its genuineness are not infact material in any way to the charge at hand or to the prosecution?s case generally, PW1?s evidence or other prosecution witnesses? evidence did not contradict themselves at all on this issue or point. That the Court in the case of DAGAYA V. THE STATE (2006) 2 SCM, PAGE 33 @ 38, HELD NO. 4 thereof, gave the meaning of contradiction/contradicting evidence thus:

Contradiction is a statement, action or fact that contradicts another or itself. A contradictory statement is a statement which states the affirmation of what is being contradicted. A contrary statement is an affirmative of the contrary of what was earlier stated or spoken. For a statement to be contradictory, it should be a direct opposite of what was earlier stated or spoken.

It follows therefore that, contradictions in the evidence of witnesses must be substantial to vitiate a judgment. Where a ground of appeal relied upon is that of contradictions in the evidence of witnesses as in the case,

it is not enough to warrant reversal of judgment merely for the Appellant to show existence of the alleged contradiction without showing further that the trial Judge did not advert to and consider the effect of those contradictions in the evidence of the prosecution witnesses. Also, the contradiction must be shown to amount to substantial disparagement of the witnesses concerned, making it dangerous or likely to result in a miscarriage of justice to rely on such evidence of the witness or witnesses. He referred to the cases of DAGAYA V. THE STATE (SUPRA); ABUBAKAR IBRAHIM V. THE STATE (1991) SCNJ, PG. 129; ADEBAYO ADETOLA & 6 ORS V. THE STATE (1992) 4 SCNJ PG. 199; SOLOLA V. THE STATE (2005) 11 NWLR (PT. 937) PG. 460; ANI V. THE STATE (2007) K.L.R. VOL. 10-13 (PT. 245) PG. 4030 @ 4037.

Respondent?s counsel submitted that PW1?s evidence in respect of the compilation of names of beneficiaries is as follows:

The compilation of names of owners of the parcels of land was done directly by the 9th Accused and other officials he came with.At the end of the remuneration exercise, the land owners were satisfied with facts (sic)

done by Mr. Enobong Akpan (9th Accused). He also adduced (sic) the land owners before he left, he said when they finished the compilation, they will send us the list, he will bring the list so that we would confirm it if was correct. He also said that the end is (sic) computation and compilation, government will pay compensation to the land owners directly. Since then, Government has not paid us compensation..

During cross-examination, (page 478 of the Record of Appeal), the PW1 stated thus:

The 1st, 2nd, and 3rd and 6th Accused Persons complained (sic) Exhibit 2-7 because they have a fair knowledge of the compilations. The lists were compiled by them. I said that the geniuses of Exhibits 2-7 was found to be true. The village of Nung Ette were very satisfied with the enumeration of the plots in Nung Ette by the government officials. It is true that at the field exercise the complete authentic names of rightful owners of the land were collated but the names on Exhibits 2-7 are not the authentic names that were obtained at the field. It is true that during the field exercise, the complete and authentic names were obtained by the

government officials but they never sent the list to us for confirmation.

In page 466 of the Record, PW1 said:

We were also served with a letter from the Office of the 9th Accused person confirming that the names are genuine.

PW2 in his evidence in page 487 of the Record said thus:

During the cause of investigation, the IPO came to my village and sent a message to the village head and instructed him to assemble the villagers of (sic) confirmation of the list of payment of compensation. The villagers were assembled and the Police came and read out the names on the list to identify the people. Those who were in the meeting and whose names were on the list stood up and identified themselves. The villagers were shocked to find that most of the names in the list were fictitious and not indigenes on Nung Ette. It was when the police read the names that we compiled the names of fault and fictitious names on the list fraudulent (sic) brought in by the accused persons. The ghost names were more than 600?

PW3 (IPO) testified as in page 498 of the Records thus:

.in the course of the investigation, we asked the 1st Accused to go back to the village and summon all the villages in the town hall on Sunday, 27/04/2008. On the said date, the villagers turned up. We went there with the list given to us by the Ministry for verification, we had warned all family heads to be there to identify their subjects. When we read out the names, we discovered that over 600 names were ghost names or fictitious names as when we read the names that were fictitious, the villages would boo and say there is no such name in the village, the family heads could not say that, those names were in existence.

The 9th Accused person (Project Officer), said counsel, testified as DW7 and his evidence in pages 554-558 of the Records. During cross-examination and from the tenor of evidence contained therein, the 9th Accused did not go back to the village to confirm or verify the genuine owners of plots before payment was made. He did the confirmation in his office vide Exhibit 9 in reply to Exhibit 8.

He submitted that, what could be deduced from the above evidence of the prosecution witnesses is that at the field exercise, the officials wrote the

names of the land owners and the 1st, 2nd and 3rd and 6th Accused persons had knowledge of the list made at the enumeration which according to them, was done satisfactorily. At the time of the investigation of the case by the Police, fictitious and ghost names were discovered in the schedule of payments; Exhibits 2-6. The ghost/fictitious names were compiled as Exhibit 7 in the presence of the Appellant, the family heads and the villagers.

The PW3?s evidence in page 507 of the Record referred to by Learned Appellant?s Counsel, disclosed that the ghost/fictitious names were compiled at the village council on 27/11/2008 vide the reactions of the villagers, and that was the evidence relied upon by the Court, and rightly so. He added that prosecution witnesses evidence as captured in lines 4:22-4:28 and 4:32 ? 4:37 of the Appellant?s Brief does not qualify as contradictions or inconsistencies to warrant a reversal of judgment as alleged by the appellant?s Counsel.

?He submitted further that, the alleged contradictions in the evidence of PW1, PW2 and PW3, put together and contained in those lines of the Appellant?s

Brief are not material in the circumstances of this case. It does not derogate from the fact that, the Appellant signed and collected monies fraudulently in this case, and could not account for the use to which it was put.

The phrase proof beyond reasonable doubt, in criminal cases, according to counsel, is not beyond all shadows of doubt. If the evidence is strong against a man such as in this case, as to leave a remote probability in his favour which can be dismissed with the sentence of course, it is impossible, but not the least probable, the case is proved beyond reasonable doubt. On this, he referred to the cases of ABOKOKUNYANRO V. THE STATE (2012) 2 NWLR (PT. 1285) 530 @ 539 HELD NO. 1; ABEKE V. THE STATE (2007) ALL FWLR (PT. 350) PG. 1323 @ 1327.

?He submitted that in this case, the inference against the Appellant is strong enough to establish his guilt beyond reasonable doubt and supports the offence against him. Also that the ingredients of the offence were well established by the prosecution through its witnesses, considering all the circumstances of this case. It is therefore erroneous for the learned Appellant?s counsel

to assert that prosecution did not prove its case beyond reasonable doubt, vis–vis the alleged contradictions and/or inconsistencies in the prosecution?s case, and there is no evidence before the Court which has identified the Accused Person/Appellant with the offence charged.

He submitted that the available evidence as put forward by the prosecution witnesses in this case, are largely uncontradicted by the defence. It is overwhelming and had proved the charge against the Appellant beyond reasonable doubt. There is no evidence before the trial Court to the effect that the Appellant and his co-accused identified persons that landed properties were leased to in Ekpene Akai farmland except the PW5 who was imported by the defence to testify. The Accused persons did not produce evidence to show that the names on Exhibit 7 are persons who leased or owned landed properties in the acquired land and this Honourable Court cannot speculate on this. He referred to the case of ABUBAKAR DANSHALLA V. THE STATE (2005) 1 NCC PG. 24 @ 27-28. He urged us to resolve issue two in favour of the Respondent.

?Learned counsel for the Appellant re-joined on

issue two in his Reply Brief that once a contradiction is capable of leading to injustice as in the instant case, the court is enjoined to resolve the case in favour of the accused person. The contradiction in the instant case is material and also related to the material fact, and that was the reason it led to a miscarriage of justice in the instant case. Again, according to Appellant?s counsel, the law is trite that the prosecution always has the burden to prove all the ingredients of the offence beyond reasonable doubt by virtue of the provision of Section 135 of the Evidence Act, 2011 . And, that where there is any doubt, no matter how slight, such doubt must be resolved in favour of the accused person. He referred on this to the case of TAMAKUWA ADEBIYI V. THE STATE (2013) 7 NWLR (PT. 1354) 597.

?I have had occasion in my treatment of issue one to resolve some of the factual and legal issues now coming up again in issue two. One of such is my resolution that Exhibit 7 in all the circumstances of the case does not deserve to be accorded any probative value. So it is that I said as a matter of law that the burden on the prosecution to prove every

ingredient of the offence does not shift, this having regards to the constitutional provision of presumption of innocence contained in Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 (as Amended). See BELLO V. STATE (2007) 10 NWLR (PT. 1043) 564; IGABELE V. STATE (2006) 6 NWLR (PT. 975) 100 SC.

The additional observation which I will like to make on facts presented in relation to issue two is first, that the evidence of PW3 on pages 487-498 of the Records quoted on page 17 of the Respondent?s brief of Argument relates only to Exhibit 7 that is the document on fictitious names which I had earlier rejected as worthless. Meanwhile, PW1 witnessed categorically that ?the compilation of names of owners of the parcels of land was done directly by the 9th Accused and other officials he came with ?.? (presumably referring to Exhibits 2, 3, and 4). At a later stage at page 478 and perhaps rather unwittingly, he made a u-turn and said Exhibits 2-7 were prepared by the 1st, 2nd and 3rd and 6th Accused persons. But that ?the village of Nung Ette were very satisfied with the enumeration of the plots

in Nung Ette by the government officials?

Beyond contradictions and inconsistencies, one obvious illogicality in the statements of PW1 is that the Appellant as 1st Accused would not have been involved in the compilation of Exhibits 2, 3, 4 ?the compensation schedules? clearly prepared by Estate Valuers even on their faces and at the same time attempt to implicate himself (that is Appellant) by taking part in the compilation of Exhibit 7 ?the list of fictitious/ghost names).

All said and done, the afterthoughts and contradictions exposed in the evidence of PW1 intra-se and consequently between PW1, PW2 and PW3 inter-se are too fundamental and material to the case of the prosecution as against the Appellant. It is the law that where there are material contradictions as in the instant case in the evidence adduced by the prosecution, such contradictions must be resolved in favour of the accused by the learned trial Judge. See BARUWA V. STATE (1996) 7 NWLR (PT. 460) 302; CLARK EJUREN V. COMMISSIONER OF POLICE (1961) ALL NLR 478; ONAFOWOKAN V. THE STATE (1987) 3 NWLR (PT. 61) 538; ARCHIBONG V. STATE (2006) 5 SCNJ 202 (2006) 14 NWLR

(PT. 1000) 349; ORJI V. THE STATE (2008) 4 SCNJ 85 (2008) 10 NWLR (PT. 1094) 31.

In the instant case, I agree with the learned counsel for the Appellant that the materiality of the contradictions in the evidence of the prosecution witnesses deprives the prosecution of the element of proof beyond reasonable doubt as required in criminal charges of this nature.

Truly, and as suggested by the learned counsel to the Respondent, proof beyond reasonable doubt is not synonymous with proof beyond all shadow of doubt. But proof there must be for the prosecution to sustain the offence charged. When as in the instant case, it is even not least probable that the Appellant was involved in the preparation of Exhibit 2, 3 and 4 nay Exhibit 7 as witnessed by PW1, the doubt in relation to the charge ought to be resolved in favour of the Appellant. I repeat, the burden on the prosecution does not shift even where an accused in his statement to the police admitted committing the offence, the prosecution is not relieved of the burden. See AKINFE V. STATE (1988) 3 NWLR (PT. 85) 729 SC; AIGBADION V. THE STATE (2000) 4 SC (PT. 1) 1 @ 15-16; ANI V. STATE (2003) 11 NWLR

(PT. 830) 142; GARKO V. STATE (2006) 6 NWLR (PT. 977) 524.

And so it is that the case of an accused person must be proved beyond reasonable doubt. Any doubt in the case of the prosecution, as in the instant case must be resolved in favour of the accused. See BARUWA V. STATE (1996) 7 NWLR (PT. 460) 302; ONUOHA V. STATE (1998) 5 NWLR (PT. 548) 118; AIGBADION V. STATE (2000) 4 S.C (PT. 1)1. Section 135 Evidence Act 2011. Issue two is also resolved in favour of the Appellant.

On issue three, learned counsel for the Appellant submitted that the learned Trial Court was wrong in law when it held in page 618 of the Records that:

The 3rd Accused person in his statement to the Police confirmed this. He stated as follows: it is true that fictitious names were also written and submitted to the Valuers, these fictitious names were given to all the family heads. The village head was quite aware of the fictitious names and the manipulation of figures.

Learned counsel for the Appellant submitted that ?persisting in that error, the trial Court reached the erroneous conclusion that the Appellant participated in the inclusion of fictitious names in the

Lists of Beneficiaries based on the assumed admission of the 3rd Accused person in his statement to the police. He referred to the cases of AUTA V. STATE 92014) LPELR ? 23292 (CA) per Galinje JCA (PP 31-33); TITILAYO V. STATE (1998) 2 NWLR (PT. 537) 235; IBRAHIM V. STATE (2014) LPELR ? 23291 (CA) Galinje JCA (PP. 26-27) and submitted that the law is trite that admission by a co-accused person cannot be used against another accused unless that other accused person is confronted with such admission and he adopted it.

He submitted that the use made of the statement of the 3rd Accused person in reaching the conclusion that the Appellant participated in the inclusion of fictitious names in the list of beneficiaries without affording the Appellant the opportunity of adopting or rejecting such statement led to a miscarriage of justice. Moreover, said counsel, the trial Court failed to warn itself before proceeding to use the said statement of the 3rd Accused person against the Appellant thus further occasioning a miscarriage of justice. He referred to the case of FATILEWA V. STATE (2008) 4-5 SC (PT. 1) 191 @ 201. He urged us to resolve the issue

against the Respondent.

Learned counsel for the Respondent on the other hand submitted on issue three that the conviction of the Appellant was not premised or predicted only on the admission of a co-accused (3rd Accused). That the trial Judge did consider several circumstances that culminated into the Appellant?s involvement in the case. And, that the conclusion that the Appellant had knowledge of the fictitious names is supported by other evidence on record. He referred to the case of ADEBAYO V. A. G., OGUN STATE (2008) 2 K. L. R. (P. 249) 721 @ 722 to state that what would amount to miscarriage of justice varies in relation to particular facts and urged us to resolve the issue in favour of the Respondent.

I agree with the learned counsel for the Appellant that the Court below was wrong when it used the statement of the 3rd Accused (co-accused) as evidence against the Appellant. This is wrong when in fact the prosecution did not confront the Appellant with the said statement of the 3rd Accused person nor afford him the opportunity to reject or deny the contents of the said statement. Such statements of co-accused could be used against the

Appellant only if the Appellant had expressly adopted such statement. Throughout the trial, there is no evidence that the Appellant adopted the statement of the 3rd Accused (co-accused) person.

The provision of Section 27(3) of the Evidence Act Cap. 62 LFN 1990(now Section 29(4) Evidence Act 2011 which gave statutory imprimatur to this rule was interpreted in the case of TITILAYO V. STATE (1998) 2 NWLR (PT. 537) 235 where it was held, inter alia that:

By virtue of Section 27(3) of the Evidence Act (now Section 29(4) of the Evidence Act, 2011), where an accused person makes a confessional statement in the presence of a co-accused which incriminates the said co-accused, such a statement cannot be taken into consideration by the Court as against such a co-accused unless he adopted the statement either by word or conduct. This means that a man?s confession is only evidence against him and not against accomplices unless the latter adopt the statement. In the instant case, since the conviction of the Appellants was founded on the confessional evidence of the 9th and 10th co-accused persons incriminating the Appellants but which the Appellants did

not adopt but denied, their conviction is unjustified?..An incriminating statement made even on an occasion which could reasonably be expected to call for explanation from him is not evidence against him on his trial of the facts therein stated save in so far he has accepted the statement. Where such statement which he did not adopt, is used to found or secure his conviction, the conviction must be quashed on appeal.

See also IBRAHIM V. STATE (2014) LPELR ? 23291 (CA) GALINJE, JCA (PP.26-27); AUTA V. STATE (2014) LPELR ? 23292 (CA) GALINJE, JCA (PP. 31-33); ADEBOWALE V. STATE (2013) 16 NWLR (PT. 1379) 104.

Issue three is resolved in favour of the Appellant.

On issue four, learned counsel for the Appellant submitted that the decision of the Court below is unsupportable by evidence, perverse and has occasioned a serious miscarriage of justice. He submitted that going by the contradictory evidence from the prosecution on a material issue (to wit whether the Appellant compiled the names) gave rise to doubt which must be resolved in favour of the Appellant.

He referred to the cases of CHUKWU V. OMEAKU (2009) ALL FWLR (PT.

490) 697; OJO V. FED. REP. OF NIG. (2009) ALL FWLR (PT. 494)1461; ABUBAKAR V. YAR?ADUA (2009) ALL FWLR (PT. 457) 156 and submitted that improper evaluation of the evidence and extraneous findings rendered the judgment of the trial Court perverse and occasioned miscarriage of justice.

Learned counsel for the Respondent submitted that the evidence of the prosecution witnesses (PW1, PW2 and PW3) established the facts that there was in existence fictitious and ghost names in the schedules of payment in this case. That the pieces of evidence as adduced by the prosecution witnesses were not controverted and the court rightly relied on them to draw its conclusion. He referred again to the cases of EBEINWE V. THE STATE (2011) VOL. 201 LRCN 220 @ 223 and DA?AU V. THE STATE (2016) 7 NWLR (PT. 1510) 83 @ 91 and urged us to hold that findings and conclusions of the learned trial Judge was not perverse and to resolve the issue against the Appellant.

?Issue four seems to me to be a culmination of issues one, two and three that I had earlier resolved in this judgment. Clearly I do agree with the learned counsel for the Appellant that the case of the

Respondent in the Court below was riddled with serious contradictions on material facts that it was unsafe and unreasonable to have convicted the Appellant on those facts. Where there are substantial contradictions on material facts in the evidence of the prosecution, an acquittal will result on the premise that it cannot be said that the case has been proved beyond reasonable doubt. See AKOSILE V. STATE (1972) 5 SC 332; KALU V. STATE (1988) 4 NWLR (PT. 90) 503.

Again, the decision of Court is said to be perverse when it fails to take into cognizance the facts or evidence laid before the Court or has taken into consideration matters which it ought not to have taken into account or shut his eyes to the obvious thereby persisting in error, different from what is reasonable or required. See EGBA V. APPAH (2005) 10 NWLR (PT. 934) 464;LAGGA V. SARHUNA (2008) 16 NWLR (PT. 1114) 427. Such findings, usually based on improper evaluation of evidence are wrong, unreasonable, unacceptable and completely outside the evidence before trial Court. See IWUOHA V. NIPOST LTD. (2003) 8 NWLR (PT. 822) 308.

?In the instant case, I agree with the learned counsel for the

Appellant that the trial Court?s verdict was unreasonable having regard to the evidence adduced before the Court at trial.

Issue four is also resolved in favour of the Appellant.

Having resolved the four issues in favour of the Appellant, the appeal is meritorious and it is allowed.

The judgment, conviction and sentence of the Appellant by Hon. Justice Godwin J. Abraham on 23/06/2016 in Charge No. HU/21C/2009 in the Uyo Judicial Division of the High Court of Akwa Ibom State are accordingly set aside. Instead, the Appellant ? Chief Archibong Etim Udo is hereby discharged and acquitted.

THE CROSS APPEAL

The Respondent in the main appeal filed a cross-appeal wherein he urged this Honourable Court to review upwards the sentence imposed on the Appellant in this appeal. The said cross-appeal has become spent as a result of my decision in the main appeal.

The Cross-Appeal is accordingly dismissed.

OBANDE FESTUS OGBUINYA, J.C.A.: I had the privilege to peruse, in draft, the leading judgment delivered by my learned brother: Mojeed Adekunle Owoade, JCA. I am in total agreement with the reasoning and

conclusion in the well-articulated judgment. I too, allow the appeal, discharge and acquit the appellant, Chief Archibong Etim Udo. I equally, penalise the cross-appeal with a deserved dismissal.

YARGATA BYENCHIT NIMPAR, J.C.A.: I was afforded the privilege of reading in advance the draft of the judgment just delivered by my learned brother, MOJEED ADEKUNLE OWOADE, JCA. It is trite that evaluation of evidence is a critical stage in the determination of any matter before a Court of record. Failure to evaluate or improper evaluation can lead to a miscarriage of justice. It is therefore important for a trial Court to take time to evaluate evidence properly and then ascribe value to it before its decision.

My lord in a detailed and succinct manner resolved the issues for determination and I agree with him. I too allow the appeal and set aside the conviction, and sentence; discharge and acquit the Appellant.

?I also dismiss the Cross Appeal for being unmeritorious.

Appearances:

IMEH ATANG, JNRFor Appellant(s)

UWEMEDIMO NWOKO, ESQ.For Respondent(s)

Appearances

IMEH ATANG, JNRFor Appellant

AND

UWEMEDIMO NWOKO, ESQ.For Respondent

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