FEDERAL REPUBLIC OF NIGERIA v. CHIEF MIKE UMEH & ANOR
(2019) LCN/4824(SC)
In The Supreme Court of Nigeria
On Friday, the 15th day of February, 2019
SC.858/2017
RATIO
POSITION OF THE LAW ON DUTY OF TRIAL JUDGE TO EVALUATE EVIDENCE AND ASCRIPTION OF PROBATIVE VALUE TO SUCH EVIDENCE; INSTANCES WHERE THIS DUTY OF THE TRIAL JUDGE WILL BE INTERFERED WITH BY THE APPELLATE COURT
It is beyond contention that the evaluation of evidence and ascription of probative value to such evidence is the primary duty of the trial Court that had the opportunity of observing the demeanor of the witnesses while testifying. The appellate Court that deals with only the cold evidence on record, being handicapped, will not ordinarily, interfere with the trial Court’s findings on the evidence. Where the trial Court, in spite of the advantage it has, however draws erroneous inferences from the evidence and occasions miscarriage of justice, the Court below and indeed this Court being appellate Courts will be duty bound to properly evaluate the evidence and make the correct findings to right the injustice occasioned by the trial Court’s wrong findings arising from its wrong evaluation of the evidence. See Nnorodim V. Ezeani (2001) 2 SC 145 and Mogaji & Ors V. Odofin & Ors (1978) 3 SC 91. PER MUSA DATTIJO MUHAMMAD, J.S.C.
POSITION OF THE LAW ON HOW THE PROSECUTION WILL DISCHARGE THIS BURDEN PLACED ON IT BY THE LAW
Both counsel are right in their submissions as to the law being settled beyond peradventure that in criminal proceedings the burden of proof is always on the prosecution to establish the guilt of the accused person beyond reasonable doubt. Counsel are again right that the burden which does not shift is attained by the prosecution on proof of, through cogent credible evidence, all the necessary and vital ingredients of the offence(s) charged. SeeKinnami V. Bauchi Native Authority (1957), Yongo V. COP (1992) NWLR (Pt 257) 36 and Sunday Ani & Anor V The State (2009) LPELR-488 (SC). PER MUSA DATTIJO MUHAMMAD, J.S.C.
MEANING OF THE OFFENCE OF CONSPIRACY
…conspiracy has been held in a plethora of authorities, to mean a meeting of the minds of the conspirators to do an unlawful act or to do a lawful act by unlawful means. See Patrick Njovens V. The State (1973) 5 SC 17, Oduneye V. State (2001) 2 NWLR (Pt 697) 311 at 324 and Upahar V. The State (2003) 6 NWLR (Pt 816) 230 at 239. PER MUSA DATTIJO MUHAMMAD, J.S.C.
WHETHER THE COURT AS WELL AS THE PARTIES ARE BOUND BY THE ISSUES FORMULATED FOR DETERMINATION AND CANVASSED BY THE PARTIES; DUTY OF A RESPONDENT WITH RESPECT TO FORMULATING ISSUES FOR DETERMINATION
Subject to the power of an appellate Court, in deserving cases, to identify the appropriate issue in the circumstance of the case, the Court and parties are bound by the issues formulated for determination and canvassed by the parties. See Oloriode V. Oyebi (1984) E.S.C.1. All Nigerian Ports Authority V. Panalpina (1974) 1 NMLR. 82 at 175. The respondent in an appeal will either adopt the issue formulated by the appellant or formulate his own issue but in so doing he cannot formulate an issue for a ground of appeal from which the appellant has not formulated an issue. In this appeal the respondent has no business formulating an issue from ground 2 of the grounds of appeal apparently abandoned by the appellant. PER WALTER SAMUEL NKANU ONNOGHEN, C.J.N.
JUSTICES
WALTER SAMUEL NKANU ONNOGHEN Justice of The Supreme Court of Nigeria
MUSA DATTIJO MUHAMMAD Justice of The Supreme Court of Nigeria
KUMAI BAYANG AKA’AHS Justice of The Supreme Court of Nigeria
JOHN INYANG OKORO Justice of The Supreme Court of Nigeria
SIDI DAUDA BAGE Justice of The Supreme Court of Nigeria
Between
FEDERAL REPUBLIC OF NIGERIA Appellant(s)
AND
- CHIEF MIKE UMEH
2. MIKE UMEH INTERNATIONAL NIGERIA LIMITED Respondent(s)
MUSA DATTIJO MUHAMMAD, J.S.C. (Delivering the Leading Judgment): This is an appeal against the judgment of the Court of Appeal, Sokoto Division, hereinafter referred to as the Court below, in Appeal No. CA/S/28C/2016 delivered on the 24th day of March 2017 upholding the decision of the Sokoto State High Court, the trial Court, discharging and acquitting the respondents of the offences of criminal conspiracy and dishonestly receiving stolen property contrary to Sections 97 and 317 of the Penal Code respectively.
The brief facts of the case that brought about the appeal is as recounted at once.
Charge No SS/37C/2013 preferred against the respondents at the trial Court by the appellant is an off shoot of charge No. SS/33C/2009 against Alhaji Attahiru Dalhatu Bafarawa, the former Governor of Sokoto State and (18) others wherein the respondents were the 16th and 17th accused persons respectively. Following appellant’s application, the respondents on the 26th June 2013 were separately tried pursuant to an amended charge No. SS/37/2013 for the offences of criminal conspiracy and dishonestly receiving
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stolen property contrary to Sections 97 and 317 of the Penal Code respectively. Their plea were taken on the 11th day of September 2013. The appellant called a single witness to prove its case against the respondents through whom exhibit ‘A’ was tendered and admitted in evidence.
On overruling respondents’ no case submission, the 1st respondent testified for the defence and closed their case. At the end of trial, including addresses of counsel, the Court delivered its judgment on 17th February 2016 which conclusion reads:-
“In the instant case, having regard to the evidence placed before this Court and on consideration of the various submissions of counsel, it is the Court’s findings that the case for the prosecution against the 1st and 2nd Accused persons have not been proved beyond reasonable doubt as required by law… both the 1st and 2nd Accused persons are hereby discharged and acquitted on the allegations in charges of conspiracy and receiving stolen property contrary to Sections 97 and 317 of the Penal Code on which they were charged.” (Underlining mine for emphasis).
Dissatisfied with the trial Court’s foregoing decision, the appellant appealed to the Court below by its
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notice filed on the 2nd of March 2016 on three grounds.
Still aggrieved, the appellant has further appealed to this Court against the lower Court’s decision affirming the trial Court’s decision vide its notice filed on 13th April 2017 containing a sole ground from which is distilled a single issue for the determination of the appeal thus:-
“Whether the Court below was correct in law when it held that the appellant failed to prove the ingredients of the offences of criminal conspiracy and of dishonestly receiving stolen property preferred against the respondents before this Court.”
A similar but more down to earth issue distilled at page 2 of the respondents’ brief of argument as arising for the determination of the appeal reads:-
“Whether the Court below considered the ingredients of each of the offences of criminal conspiracy and receiving stolen property contrary to Sections 97 and 317 of the Penal Code as charged vis-a-vis the evidence by the appellant in respect thereof before it discharged.”
The foregoing issue is preferred and shall be the basis for the determination of the appeal.
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On the lone issue, learned appellant’s counsel submits that the burden of proving the two offences against the respondents lies on the appellant. It does not shift. Section 138 (1) of the Evidence Act which codifies the principle, learned counsel further submits, is only discharged when the evidence the appellant proffers is credible and establishes the charge against the respondents beyond reasonable doubt. All the appellant needed to do and which it has done in the instant case, it is argued, is to ensure the proof of all the necessary and vital ingredients of the charge by evidence. The affirmation of the trial Court’s finding at pages 113 114 of the record by the Court below at page 196 of the record of appeal that appellant has not discharged the burden the law places on it, it is contended, is belied by the evidence on record.
Exhibit A, it is further submitted, proves the fact that respondents were paid the sum of three hundred million naira from the treasury of the Sokoto State Government, a fact which DW1 confirmed in his testimony reflected at pages 62 63 of the record of appeal. Payment of the money to the
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respondents notwithstanding the approval of the Sokoto State Government, it is further submitted, remains unlawful. The money paid to the respondents was not appropriated for in the 2004/2005 budget which, by Section 122(2) (b) of the Evidence Act 2011, must be taken judicial notice of. Relying inter-alia onNasiru V. State (1999) 2 NWLR (Pt 589) 87, Yongo V. COP (1992) 8 NWLR (Pt 257) 36, Gbadamosi V. State (1991) 6 NWLR (Pt 196) 182 and Babarinde V. State (2014) All FWLR (Pt 717) 606, learned appellant’s counsel urges the resolution of their sole issue against the respondents and that the appeal be allowed.
On the lone issue, it is conceded and rightly so by respondents” counsel that to secure conviction the appellant must establish each and every ingredient of the two offences of conspiracy and dishonestly receiving stolen property contrary to Sections 97 and 317 of the Penal Code against the respondents. The evidence of PW1, including exhibit A tendered through him, it is contended, does not contain the least suggestion of any agreement to do any illegal act by the respondents which conspiracy implies. From the
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evidence on record, the respondents were only engaged by the Sokoto State Government to clear for it, 445 deformed iron bars bundles which, it is submitted, is not illegal. The lower Court having also analysed and weighed all the evidence on record before affirming the trial Court’s judgment that the evidence does not establish the two offences against the respondents beyond reasonable doubt, it is further argued, the concurrent decisions of the two Courts must prevail. Relying on Gbileve V. Addingi (2014) 16 NWLR (Pt 1433) Pt. 394 at 419-420 Para F-C, Ojibah V. Ojibah (1991) 5 NWLR (Pt 191) p 296 and Njovens V. State (1973) 3 SC 17 at 70 learned respondents’ counsel urges that the appeal be dismissed.
The question this appeal raises is purely on the evaluation of evidence undertaken by the trial Court and the inferences it drew therefrom as affirmed by the Court below. It is beyond contention that the evaluation of evidence and ascription of probative value to such evidence is the primary duty of the trial Court that had the opportunity of observing the demeanor of the witnesses while testifying. The appellate Court that deals with only the cold evidence on record, being
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handicapped, will not ordinarily, interfere with the trial Court’s findings on the evidence. Where the trial Court, in spite of the advantage it has, however draws erroneous inferences from the evidence and occasions miscarriage of justice, the Court below and indeed this Court being appellate Courts will be duty bound to properly evaluate the evidence and make the correct findings to right the injustice occasioned by the trial Court’s wrong findings arising from its wrong evaluation of the evidence. See Nnorodim V. Ezeani (2001) 2 SC 145 and Mogaji & Ors V. Odofin & Ors (1978) 3 SC 91.
Learned appellant’s counsel contends that the concurrent findings of the two Courts below discharging and acquitting the respondents are perverse. He insists that appellant has established all the ingredients of the two offences the respondents are tried for. Learned counsel to the respondents contends otherwise. Certainly, both counsel cannot be right.
Both counsel are right in their submissions as to the law being settled beyond peradventure that in criminal proceedings the burden of proof is always on the prosecution to establish the guilt of the accused person beyond
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reasonable doubt. Counsel are again right that the burden which does not shift is attained by the prosecution on proof of, through cogent credible evidence, all the necessary and vital ingredients of the offence(s) charged. See Kinnami V. Bauchi Native Authority (1957), Yongo V. COP (1992) NWLR (Pt 257) 36 and Sunday Ani & Anor V The State (2009) LPELR-488 (SC).
In the instant appeal, therefore, the question to answer is whether, as contended by learned appellant’s counsel the appellant has by credible evidence established all the ingredients of the offences of conspiracy and dishonestly receiving stolen property preferred against the respondents thereby demonstrating that the concurrent findings of the two Courts below that have occasioned miscarriage of justice are perverse. The appellant has not done so.
The appellant relies on the evidence of PW1 as well as exhibit A tendered through him. PW1’s testimony is to the effect that the respondents were contracted by the Sokoto State Government to clear for it some deformed iron rods from the port which exhibit A shows has been so cleared. The 2nd respondent, as DW1, in his evidence confirms being
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engaged by the State Government as a clearing agent and that they were paid for the job they did.
It is intriguing that the appellant who alleges conspiracy to and the unlawful receipt of the sum of 300,000,000.00k three hundred million naira by the respondents has led no evidence, not even a cheque or the respondents’ statement of account, in proof of the sum allegedly received.
Again, conspiracy has been held in a plethora of authorities, to mean a meeting of the minds of the conspirators to do an unlawful act or to do a lawful act by unlawful means.
See Patrick Njovens V. The State (1973) 5 SC 17, Oduneye V. State (2001) 2 NWLR (Pt 697) 311 at 324 and Upahar V. The State (2003) 6 NWLR (Pt 816) 230 at 239.
The respondents must be shown, by credible evidence, be it circumstantial, to have agreed to illegally clear the iron rods for the Sokoto State Government in order to receive the money or otherwise dishonestly received the money. Yet from the evidence on record, the appellant has woefully failed to establish the receipt of the sum paid to the respondents to be illegal or the act of clearing the iron rods the Sokoto
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State Government contracted them to do and for which the payment was effected to be illegal.
Learned appellant’s counsel has strenuously argued that the illegality in the payment of the three hundred million naira to the respondents lies in the fact that the money was not appropriated for in the extant budget of the State and that the trial Court, which decision was affirmed by the lower Court, by Section 122(2) (b) of the Evidence Act 2011 is bound to take judicial notice of that fact. Learned counsel further contends that the respondents are presumed to know that the money they were paid had not been appropriated for.
To say the least, the law does not absolve the appellant from its burden of proving that the money paid to the respondents had not been provided for in the 2004/2005 Sokoto State Appropriation Law. It is only when the appellant had established the fact of the money paid to the respondents as being extraneous to the Appropriation Law and the payees assert ignorance in defence of the violation of the law that Section 122 of the Evidence Act would come into play. The burden of proof of all the ingredients of the two offences of
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conspiracy to receive and dishonestly receiving the money, therefore, remains throughout on the appellant. It does not shift. To allow the operation of Section 122 (1) (b) of the Evidence Act within the purview of the facts in the case at hand, the lower Court is right, is to allow for the shifting of the burden of proof on the respondents. No reasonable tribunal would so ask the respondents to prove their innocence in violation of their right under Section 36 of the 1999 Constitution as amended.
Remarkably, the lower Court in relation to the appeal before it enthused while concluding its judgment at page 196 of the inter-alia record as follows: –
“It is therefore incumbent on the appellant to prove that the contract for clearance of the iron rods approved by the then sitting governor and his executive council was done in violation of the Appropriation Law of Sokoto State or was otherwise done illegally to the knowledge of the respondents or in such circumstances that gives the respondents reason to believe that the transaction was unlawful or the money paid to them was stolen or otherwise illegally procured. In the instant case the appellant
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failed woefully to prove any ingredient of the two offences charged other than payment of money to the respondents and even that falls short of proof beyond reasonable doubt as evidence regarding the exact purpose for the payment and exact amount paid was more or less incongruous with the allegations in the two-count charge on which the respondents were tried and acquitted. I am unable to fault the decision of the lower Court as the Learned Trial Judge had meticulously and thoroughly appraised the elements of the offences charged and the evidence adduced by the appellants. No Court worth its salt will convict the respondents on the counts of charge levied against them giving the evidence adduced and the entire circumstances of the case.”
Mukhtar’s JCA foregoing view, with which Shu’aibu and Oho JJCA concurred, is unassailable. I ascribe to the reasons as adumbrated in the lead judgment to adjudge the appeal as lacking in merit and dismiss same.
The judgment of the trial Court discharging and acquitting the respondents delivered on 17th February 2016 in case No. SS/37/C/2013 is hereby further affirmed.
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WALTER SAMUEL NKANU ONNOGHEN, C.J.N.: I have read in draft the lead Judgment just delivered by my learned brother, Muhammad, JSC and I entirely agree with the reasoning and conclusion that the appeal is devoid of any substance. I desire to add a few comments.
Learned counsel for the appellant stated that:
having regard to the sole ground of appeal filed in this appeal, the appellant hereby formulates one issue for determination in this appeal
Contrary to the statement that a sole ground of appeal was filed in this appeal learned counsel stated that “the above lone issue formulated for determination distilled from ground one of the grounds of appeal. (Underlining mine for emphasis).
If the Lone issue for determination is framed from the sole ground of appeal filed in this appeal, how is it that the “lone issue formulated for determination is distilled from ground one of the grounds of appeal It does appear to me that learned counsel for appellant is not familiar with his clients’ case.
Learned counsel for the respondents took the absurdity created by counsel for the appellant a step further when he claimed, at page 3 of the respondent’s brief that,
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“this sole issue for determination is distilled from ground (sic) 1 and 2 of the grounds of appeal.”
Subject to the power of an appellate Court, in deserving cases, to identify the appropriate issue in the circumstance of the case, the Court and parties are bound by the issues formulated for determination and canvassed by the parties. See Oloriode V. Oyebi (1984) E.S.C.1. All Nigerian Ports Authority V. Panalpina (1974) 1 NMLR. 82 at 175. The respondent in an appeal will either adopt the issue formulated by the appellant or formulate his own issue but in so doing he cannot formulate an issue for a ground of appeal from which the appellant has not formulated an issue. In this appeal the respondent has no business formulating an issue from ground 2 of the grounds of appeal apparently abandoned by the appellant.
In proof of count one, learned counsel for the appellant relied on the fact that the money has not been appropriated and budgeted for by the Sokoto State Government for the years 2004 2005. It is not the duty of the respondents to ensure
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that the money paid to them by the Sokoto State Government for the job they executed for the government is budgeted for. The fact that the money was not in the budget for the year material to this case is no proof that the money was stolen.
It is for the above and the fuller reasons in the lead Judgment that I also dismiss the appeal for want of merit.
Appeal dismissed.
KUMAI BAYANG AKA’AHS, J.S.C.: I was privileged to have read before now the judgement of my learned brother, M. D. Muhammad JSC.
The appellants were charged for the offences of conspiracy and receiving stolen property contrary to Sections 97 and 317 of the Penal Code. The evidence which the prosecution adduced before the trial Court was that the respondents were paid N300,000,000.00 (Three Hundred Million Naira) from the Sokoto State treasury on the approval of the Sokoto State Government which was not appropriated for in the 2004/2005 budget.
The offences the respondents were charged for are not strict liability offences that require the respondents to establish their innocence. The appellant failed to discharge the burden of proof and the respondents were discharged by the trial
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Court and their acquittal was affirmed by the Court of Appeal, Sokoto.
There are concurrent findings of fact. The appellant failed woefully to prove the charge against the respondents. I am in complete agreement with the conclusion reached by my learned brother, Muhammad JSC that there is no substance in the appeal and it is accordingly dismissed.
JOHN INYANG OKORO, J.S.C.: I had the privilege of reading in draft form, the lead judgment just delivered by my learned brother, Musa Dattijo Muhammad, JSC, and I totally agree with his reasoning and conclusion that this appeal has no merit. I have no hesitation in dismissing it. The fact of the case leading to this appeal and the sole issue formulated and argued on both sides have been scrupulously reviewed in the lead judgment and I adopt same in this judgment.
I am of the considered view that the issue in this appeal is whether the concurrent findings of the two lower Courts are perverse or occasion a miscarriage of justice. It is trite law that this Court would very rarely interfere with the concurrent findings of the lower Courts except where such concurrent
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findings appear to be perverse, or occasion a miscarriage of justice, or is found to be unreasonable or against the evidence adduced, or in violation of some principle of law and procedure. See the cases of Shipcare Nigeria Limited v. Owners of the “M/V Fortunato’ (2011) 7 NWLR (Pt.1246) p. 205; Ogba v. State (1992) 2 NWLR (Pt.222) 164; Ogbu v. State (1992) 8 NWLR (Pt. 259) 255.
The facts of this case has it that the Respondents were paid the sum of N300,000,000.00 by the Sokoto State Government to clear the State Government’s iron rods from the port. The Appellant alleged that the said money paid to the Respondents had not been appropriated for in the 2004/2005 Appropriation Law of Sokoto State. The Appellant therefore preferred charges of conspiracy to receive and dishonestly receiving the money. The Appellant contended strenuously, that the Respondents ought to have known that the money that they were paid had not been appropriated for.
From the evidence placed before this Court, I see no credible evidence establishing the offence of conspiracy and dishonesty in receiving the money from the Sokoto State Government. The Appellant therefore failed
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to discharge the onus placed on it in proving the essential ingredients of the offence preferred against Respondents beyond reasonable doubt.
I therefore, see no reason to interfere with the concurrent findings of facts made by the trial Court and affirmed by the Court of Appeal, same not being perverse or a miscarriage of justice. In a criminal proceedings the onus is on the prosecution to establish the essential ingredients of the offence beyond reasonable doubt. Where it fails to establish the essential ingredients of the offence against the accused as in the instant case, the Court can do only one thing which is to discharge and acquit the accused.
On the whole, I affirm the concurrent findings of the two lower Courts. I hold that there is no merit in this appeal. It is therefore dismissed by me.
Appeal dismissed.
SIDI DAUDA BAGE, J.S.C.: I have had the benefit of reading in draft the lead Judgment of my learned brother Musa Dattijo Muhammad, JSC, just delivered. I agree entirely with the reasoning and conclusion reached. I do not have anything useful to add. The appeal is devoid of merit, it is
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accordingly dismissed. Judgment of the Lower Court delivered on the 24th March, 2017 is hereby affirmed.
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Appearances:
Chief J.E. Ochidi For Appellant(s)
Mukhtar M. Yabo For Respondent(s)
Appearances
Chief J.E. Ochidi For Appellant
AND
Mukhtar M. Yabo For Respondent
