FEDERAL REPUBLIC OF NIGERIA V NASIRU YAHAYA (2019)

FEDERAL REPUBLIC OF NIGERIA V NASIRU YAHAYA

(2019) LCN/4637(SC)

In the Supreme Court of Nigeria

Thursday, January 24, 2019


Case Number: SC.645/2014

 

JUSTICES:

IBRAHIM TANKO MUHAMMAD

MARY UKAEGO PETER-ODILI

KUDIRAT MOTONMORI PLATOKUNBO KEKERE-EKUN

AMIRU SANUSI

EJEMBI EKO

 

APPELLANTS

FEDERAL REPUBLIC OF NIGERIA

 

RESPONDENTS

NASIRU YAHAYA

GENERAL POWERS OF THE COURT OF APPEAL

“The general powers of the Court of Appeal as provided by Section 16 of the Court of Appeal Act, reads as follows: “The Court of Appeal may from time to time make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal…………. and may re-hear the case in whole or in part or may remit it to the court below for the purpose of such re-hearing or may give such other directions as to the manner in which the court below shall deal with the case in accordance with the powers of that court, or, in case of an appeal from the court below in that court’s appellate jurisdiction, order the case to be re-heard by a court of competent jurisdiction”

WHEN IS IT RIGHT FOR THE TRIAL COURT TO ORDER A RETRIAL

“The law has, for long, been stated by this court in case of a retrial that in a matter where so much depends on the credibility of evidence of parties and their witnesses, the proper course to be taken by an appellate court is to order a retrial. The case of Mbionwu v. Obi (1997) 2 NWLR (Pt. 487) has been cited in support”.

DUTY OF COURT TO ORDER A RETRIAL

“In the case of Duruaku Eke & Ors v. Udeozor Okwaranyia & Ors (2001) LPELR 1074, this court stated as follows: “It may well happen that a trial court made no finding of fact on conflicting material evidence adduced on an issue by both parties to an action, the resolution of which is essential to the just determination of the case, the proper course is to order a retrial unless the circumstances of the case do not warrant such an order” See further: Chief James Okpiri & Ors v. Chief Igoni Jonah & Ors (1961) 1 All NLR 102; Olalere Obadara & Ors v. The President, lbadan West District Court (1964) 1 All NLR; Oladipo Maja v. Learndro Stocco (1968) 1 NMLR, 172. It is thus, the primary duty of any trial court, where assessment or evaluation of evidence rests on the credibility of witnesses to unfailingly discharge that function as it is the one and only court that had the advantage of seeing and observing the witnesses. Where it however fails to discharge such responsibilities, then an appeal court is in much a good position as the trial court to deal with the fact and make proper findings. In the case of Shell BP Petroleum Dev. Co. Nigeria Ltd. v. Cole & Ors (1978) 3 SC (reprint) 128; this court, per Bello, JSC (as he then was and of blessed memory), held, among other things, that: In a matter where so much turns on the credibility or reliability of witnesses, the proper course to be taken by the Court of Appeal is to make an order for a retrial.

“In the case of Duruaku Eke & Ors v. Udeozor Okwaranyia & Ors (2001) LPELR 1074, this court stated as follows: “It may well happen that a trial court made no finding of fact on conflicting material evidence adduced on an issue by both parties to an action, the resolution of which is essential to the just determination of the case, the proper course is to order a retrial unless the circumstances of the case do not warrant such an order” See further: Chief James Okpiri & Ors v. Chief Igoni Jonah & Ors (1961) 1 All NLR 102; Olalere Obadara & Ors v. The President, lbadan West District Court (1964) 1 All NLR; Oladipo Maja v. Learndro Stocco (1968) 1 NMLR, 172. It is thus, the primary duty of any trial court, where assessment or evaluation of evidence rests on the credibility of witnesses to unfailingly discharge that function as it is the one and only court that had the advantage of seeing and observing the witnesses. Where it however fails to discharge such responsibilities, then an appeal court is in much a good position as the trial court to deal with the fact and make proper findings. In the case of Shell BP Petroleum Dev. Co. Nigeria Ltd. v. Cole & Ors (1978) 3 SC (reprint) 128; this court, per Bello, JSC (as he then was and of blessed memory), held, among other things, that: In a matter where so much turns on the credibility or reliability of witnesses, the proper course to be taken by the Court of Appeal is to make an order for a retrial.”

CRITERIA FOR RETRIAL ORDER

“Permit me to remind your lordships that a retrial order becomes necessary when there had been an error in law or an irregularity in the procedure that does not make the trial a nullity or results in miscarriage of justice. In the case of Moshood v. The State (2004) 14 NWLR (Pt.893) 422 at 428, the Supreme Court spelt out the criteria for a retrial order: The court must be satisfied that: (a) the evidence taken may otherwise disclose the commission of the offence substantially, (b) there is no special circumstance that will render it oppressive to put the accused to trial a second time; (c) that to refuse an order for a retrial would result in a greater injustice; (d) that the offence or offences of which accused was convicted or the consequences to the accused or any other person of the conviction or acquittal of the accused, are not merely trivial. The case of Abodundu v. The Queen (1958) 4 FSC 70 at 73 was cited in support”.

INSTANCES WHEN A RETRIAL ORDER CAN BE MADE

“Specific findings on the issues in controversy, will have to be made by the trial court. In most time such findings will depend on the reliability of the witnesses who testified on either side. Where the trial court failed to indicate which version it accepted as true, an appellate court cannot believe witnesses it never saw or heard. In that circumstances, the appeal may be allowed as done by the court below and retrial order be made. Equally, when a trial judge makes a wrong approach to the assessment of evidence especially in failing to resolve conflicting evidence. See: Ezeoke v. Nwagbo (1988) 1 NWLR (Pt.72) 616; Oke & Ors v. Eke & Ors (supra); Okpisi v. Jonah (1961) 1 All NLR 102”.

INGREDIENTS TO BE PROVED IN CRIMINAL MISAPPROPRIATION CASES

a. The property in question is a movable property.

b.That the accused converted or misappropriated it to his own use.

c.That he did so dishonestly It needs be said that all the three essential elements must be proved, none missing before the requirement of the law on the standard of proof beyond reasonable doubt is met.

Where those essential ingredients of the offence are not proved, the accused is entitled to an acquittal. See Alabi v The State (1993) 7 NWLR (Pt.307) 511 at 523; Nwokedi v COP (1977) 3 SC 35 at 40’’

WHEN AN APPELLATE COURT MAY INTERFERE WITH THE DISCRETION OF A TRIAL COURT

“Ordinarily, an attack on wrongful exercise of discretion is predicated on a number of grounds including mistake of law, or disregard of principle, or under a misapprehension of the facts, or taking into consideration extraneous or irrelevant matters, or some other grounds suggesting that the discretion was not exercised judicially: Odutola v. Kayode (1994) 2 NWLR (pt. 324) 1; (1994) 2 SCNJ 21. It has never been a judicial principle that the appellate Court could interfere with the exercise of discretion merely on the ground that it would have, in the circumstances, exercised its discretion differently: Hadmor Productions Ltd. v. Hamilton (1983) A.C. 191, Saraki v. Kotoye (1990) 6 SCNJ 31 at 31”

 

WHETHER COURTS CAN CHOOSE WHICH WITNESS TO BELIEVE AND DISBELIEVE 

“In other circumstances where the witnesses called by the prosecution, gave different versions of the same incidence or transaction, it had been held that the Court cannot pick and choose which witness to believe and which witness to disbelieve, and that in the circumstance the prosecution had failed to prove the guilt of the accused beyond reasonable doubt: Paul Ameh v. The State (1978) 6 – 7 SC 27; Boy Muka v. The State (1976) 10 SC 305; James Ikhane v. Commissioner Of Police (1977) 6 SC 119”.

(DELIVERED BY I. T. MUHAMMAD, JSC)
The respondent, herein, was the accused person (defendant) at the High Court of Justice, Zamfara State, holden at Gusau Judicial Division (“trial court” herein).
The appellant herein, as complainant at the trial court, was the Federal Republic of Nigeria which was represented by the prosecution.
The prosecution filed at the trial court, a charge of criminal misappropriation against the respondent which reads as follows:
“That you Nasiru Yahaya between 27th April, 2011 and 21st May, 2011 at Gusau within jurisdiction of the High Court of Zamfara state, dishonestly converted to your own use the sum of N64,800,000.00 (Sixty-Four Million, Eight Hundred Thousand Nairn only) belonging to one Alhaji Musa Baba and that you thereby committed an offence contrary to Section 308 and punishable under Section 309 of the Penal Code.”
The respondent was duly arraigned and he pleaded “not guilty” to the charge.
The appellant called four (4) witnesses and tendered five (5) exhibits in proof of the offence. The respondent testified in his own defence. He called no witness and tendered no exhibits.
At the end of trial, the learned trial judge made a finding that the prosecution had failed to establish a case of criminal misappropriation under section 308 and punishable by section 309 of the Penal Code. He, accordingly, entered a verdict of discharge and acquittal in favour of the respondent.
On appeal to the Sokoto Division of the Court of Appeal (court below) by the appellant, the court below, after review of the whole case, made a comparative analysis of the evidence placed before the learned trial judge and depicted some conflicts and contradictions, especially in the evidence of PW1 and that of the accused/respondent. It allowed the appeal in part. It set aside the judgment of the trial court and ordered for a retrial of the case.

Dissatisfied with the decision of the court below, the appellant appealed further, to this court, on six (6) grounds of appeal as set out in its Notice of Appeal dated 14th July, 2014 and filed at the Registry of the court below on the 15th of July, 2014 (pp. 179 – 184 of the Record of Appeal).
Having settled their briefs of arguments including appellant’s reply brief, in accordance with the Rules of Court, each of the parties formulated its/his respective issues for determination by this court. Below are the issues of the appellant (page 5 of its brief):
1.”Whether the learned Justices of the Court of Appeal were right in making an order of re-trial having set aside the acquittal of the respondent? (Distilled from Grounds 2, 3 and 4 of the Grounds of Appeal)
2.Whether the learned Justices of the Court of Appeal should have made an order of conviction of the respondent after setting aside his earlier acquittal by the trial court? (Distilled from Grounds 1, 5 and 6 of the Grounds of Appeal).”
Respondent’s issues are set out on page 2 of the brief of argument):
A.”Whether the prosecution/appellant proved the charge against the respondent beyond reasonable doubt? (Grounds 5).
B.Whether the learned Justices of the Court of Appeal were right in making an order of re-trial and not conviction, having set aside the acquittal of the respondent (Grounds 2, 3, 4 and 6).”
The appellant’s issues are, in my view, adequate in resolving the appeal.

In making his submissions on issue No.1, learned counsel for the appellant argued that in setting aside the acquittal of the respondent, the court below did not declare the proceedings of the trial court a nullity. Learned counsel posed a challenge to the reasoning process upon which the court below relied to set aside the acquittal of the respondent by the trial court, in failure of the learned trial judge to resolve the “conflicting and divergent evidence of PW1, PW2 and that of the accused.” Learned counsel stated that the divergent evidence the learned Justice of the Court of Appeal (who wrote the leading judgment page 176 of the Record of Appeal) was: whether there was an agreed lifetime within which the respondent was to deliver the fertilizer to PW1 and PW2. This piece of evidence was found to be significant by the court below, in determining the guilt or otherwise of the respondent. Learned counsel for the appellant contends further that there was an agreed timeframe for completion of the transaction, which the respondent denied. The learned counsel tied his argument to the non-production of evidence by the respondent at the trial court where as the appellant, he argued further, had in addition to the evidence of PW1 led further evidence on the issue of time frame, through PW2 (p.82 of the Record of Appeal) PW4 (pp 87 and 100 of the Record of Appeal) and Exhibit ‘C (p.7 of the Record of Appeal) which was tendered without objection. He argued further that all these pieces of evidence are contained in the printed record of appeal before the court below and this court. Learned counsel submitted that as the trial court was wrong, as decided by the court below, (p. 173 of Record of Appeal) in not resolving the issue of time frame, the learned Justices of the court below, were equally wrong in not making use of the evidence contained in the printed Record of Appeal before them to resolve the dispute once and for all. He cited the case of Lagga v. Sarhuna (2008) 16 NWLR (Pt.114) 427 at 461 – 462. He further stated that part of the appellant’s evidence contained in the Record of Appeal is documentary, i.e. Exhibit C, yet the court below made an order for re-trial.
Learned counsel for the appellant submitted that the two decisions relied upon by the court below in making a re-trial order: Ajao v. Alao (1986) NWLR (Pt.45) 805 and Shell BP Petroleum Dev. Co. Nigeria Ltd. v. Cole & 7 Ors (1978) 3 SC (Re-print) 128; are not good authorities in making the said order in the instant case. Learned counsel went further to cite the case of Olodo v. Josiah (2010) 18 NWLR (Pt.1225) 653 at 672 A – C where this court held that where a trial court fails to make findings on material and important issues of fact, the appellate court will have no alternative than to make such findings of facts and that in that case, an appellate court will interfere with the evaluation of evidence by the trial court, where, inter alia, the trial court failed to make proper use of the opportunity of seeing, hearing and observing the witnesses. Learned counsel argued that it is beyond dispute that in the instant case the trial court had failed to make proper use of that opportunity.
The learned counsel for the appellant submits that the proper thing for the court below to have done in the circumstances of this case was not to make an order of re-trial but to draw the necessary inferences and make appropriate findings as held in the last cited case above Olodo v. Joseph (supra) and the case of Adebayo v. Shugo (2005) 7 NWLR (Pt.925) 467 at 481 D – G. Learned counsel stated that these powers have statutory backing under Section 16 of the Court of Appeal Act (as amended); Order 4 Rule 3 of the Court of Appeal Rules, 2011 and Section 26 of the Supreme Court Act; Order 8 rule 1(2) of the Supreme Court Rules, 1985 (as amended). Further, learned counsel reiterated the point that the presence of documentary evidence (Exhibit C) and other form of evidence (circumstantial evidence) should have rendered the task of making the correct findings by the court below, easier. He cited the case of Yaro v. Arewa Construction Ltd. (2007) 17 NWLR (Pt.1063) 333 at 373; Karibo v. Grend (1992) 3 NWLR (Pt.230) 426 at 441.
On the issue of time of delivery of the fertilizers, learned counsel for the appellant submits that the parties agreed on time of delivery of the fertilizers which had passed without the respondent supplying the fertilizer or refunding the money he collected. This, learned counsel argued, could have made the court below to infer criminal intent on the respondent’s part and ground a conviction. Other instances of circumstantial evidence abound such as (a) the respondent’s demand of payment 100% upfront but to source the commodity (fertilizer) bit-by-bit (b) immediately the respondent collected the said amount of N64.8m, he transferred N25m to his girlfriend (fiancée) who was not a fertilizer merchant but a student; (c) with or without Express term as to time of delivery would apply in this circumstance (d) from the date of payment of the money up till today, the respondent has failed to effect supply or repayment of money collected by him (e) the respondent, throughout, did not mention anybody as a business partner.
Learned counsel submitted that the court below should have been guided by the decision of this court in Karibo v. Grend (1992) 3 NWLR (Pt.240) 426; to make use of the available circumstantial evidence instead of ordering for a re-trial. Learned counsel urged this court to reverse the re-trial order made by the two courts below and rely on its powers under Section 26 of the Supreme Court Act and substitute it with an order of conviction. He urged this court to resolve this issue in the negative and in favour of the appellant.
The second issue by the respondent, i.e. issue (B) is in pari matera with appellant’s issue (i).

In his submissions on the issue, the learned counsel for the respondent argued that the Court of Appeal was right in ordering a retrial. He cited in support, the case of Moshood v. The State (2004) 14 NWLR (Pt.893) 422 at 428 where circumstances for a retrial order were clearly stated. Learned counsel contended that the court below ought to have relied on the evidence of the respondent to uphold the decision of the trial court acquitting the respondent and that it ought not to have ordered a retrial; is totally misconceived. He cited and relied on the case of Eke & Ors v. Okwaranyia & Ors (2001) LPELR – 1074; in urging this court to hold that the court below was right when it ordered a retrial and the argument of the appellant not to order a retrial, should be discountenanced and that the court below ought to have convicted the respondent after setting aside the acquittal order made by the trial court. Further, learned counsel submitted that the argument of the appellant cannot be sustained as the evidence before the trial court clearly shows that the prosecution had failed to prove the guilt of the respondent beyond reasonable doubt, amidst material contradictions (pp 175 – 176 of the Record of Appeal), which ought to be resolved in favour of the accused/respondent. He cited the case of Nwangwa & Ors v. The State (1997) LPELR, 6315. Such contradictions, it is argued further, ought to be resolved in favour of the respondent. Learned counsel urged this court to invoke its power in Section 22 of its Act to uphold the decision of the trial court in acquitting the respondent.
My Lords, it can clearly be seen from the issues and submissions of learned counsel for the respective parties that respondent’s issue No. 2 or “B”, as reflected, squarely fits in appellant’s issue No.(i). I will consider this issue first.
This issue (already reproduced above), is framed with the aim of considering the powers of the court below in making a re-trial order in a criminal proceeding after setting aside an acquittal order made by the trial court. The general powers of the Court of Appeal as provided by Section 16 of the Court of Appeal Act, reads as follows:
“The Court of Appeal may from time to time make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal………. and may re-hear the case in whole or in part or may remit it to the court below for the purpose of such re-hearing or may give such other directions as to the manner in which the court below shall deal with the case in accordance with the powers of that court, or, in case of an appeal from the court below in that court’s appellate jurisdiction, order the case to be re-heard by a court of competent jurisdiction.”
My lords, one may be tempted to ask: Is the court below justified in making a re-trial order? The main reasons for sending the case back for re-trial are stated by the court below pages 175 – 176 of the Record of Appeal as follows:

“The learned judge in my respectful view without showing how he arrived at the conclusion picked and chose out of the conflicting and divergent versions of the evidence of PW1 and the accused on a crucial point in the case. How His Lordship arrived at the conclusion that the contract was rescinded by PW1 and PW2 in the face of the evidence of PW1 without disbelieving any of the witnesses cannot be assumed but must be evident from the judgment and on the face of the record. This turns on the credibility of witnesses which cannot be assessed by this court not having had the advantage of seeing the witnesses. In Shell BP Petroleum Dev. Co. Nigeria Ltd. v. Cole & Ors (1978) 3 SC (Reprint) 128 Bello JSC (as he then was) held thus:
‘This court has in numerous cases reiterated the rule that the Court of Appeal will not ordinarily interfere with the findings of facts by the trial judge but where there is ample evidence and the trial judge failed to evaluate it and make correct findings on the issue the Court of Appeal is in as much a good position as the trial court to deal with the fact and to make proper findings. However, in a matter where so much turns on the credibility or reliability of witnesses, the proper course to be taken by the Court of Appeal is to make an order for a retrial. See Chief James Okpiri & Ors v. Chief lgoni Jonah & Ors (1961) 1 All NLR 102; Olalere Obadara & Ors v. The President, Ibadan West District Court (1964) 1 All NLR and Oladipo Maia v. Learndro Stocco (1968) NMLR 172.’
This piece of evidence is significant in determining whether or not there was criminal misappropriation or it was a mere business transaction. If the accused failed to deliver the fertilizers as promised and did not refund the money given him, and failed to even account for the money then he could be held to have criminally withheld it, and criminal intention could be inferred from the circumstances.

If on the other hand, the contract was terminated by PW1 and PW2 the prosecution’s case would have to collapse. But determining the above would involve resolution of conflicting and divergent evidence of PW1, PW2 and the accused which the learned trial judge failed, with due respect to do.”
The major finding of the court below which made it to order for a re-trial, as I see it from the record, is on the completion period of the job/contract between the respondent and PW1 – Mustapha Haske Turaki. It was in evidence before the trial court that Mustapha Haske, as PW1 gave evidence as follows:
“At the expiration of 2 weeks there was no supply, he pleaded for an extension of time of one week I told him, I have to notify the owner Alh. Musa Baba.”
DW1, Nasiru Yahaya, the respondent, stated as follows:
“There was no specific time of delivery with PW1 because it is being purchase(sic) bit by bit.”
At the conclusion of hearing the learned trial judge made a finding that the business/transaction between the parties was a failed business or commercial transaction which could not be said to be criminal misappropriation. He, accordingly, discharged and acquitted the accused/respondent. The court below faulted the decision of the trial court. It made the following observation:
“The learned trial judge who had the opportunity to see and hear the witnesses failed to resolve this conflict on a fundamental point in the evidence of both parties.”
The law has, for long, been stated by this court in case of a retrial that in a matter where so much depends on the credibility of the evidence of parties and their witnesses, the proper course to be taken by an appellate court is to order a retrial. The case of Mbionwu v. Obi (1997) 2 NWLR 9Pt.487), has been cited in support.
The court below, in justifying its decision to remit the case for retrial faulted how the learned trial judge arrived at his conclusion. Awotoye, JCA; who delivered the lead judgment, had this to say:
“The learned trial judge in my respectful view without showing how he arrived at the conclusion picked and chose out of the conflicting and divergent versions of the evidence of PW1 and the accused on a crucial point in the case. How His Lordship arrived at the conclusion that the contract was rescinded by PW1 and PW2 in the face of the evidence of PW1 without disbelieving any of the witnesses cannot be assumed but must be evident from the judgment and on the face of record. This turns on the credibility of witnesses which cannot be assessed by this court not having had the advantage of seeing the witnesses. In Shell BP Petroleum Dev. Co. Nigeria Ltd. V. Cole & Ors (1978) 3 SC (Reprint) 128 Bello JSC (as he then was) held thus:
‘This court has in numerous cases reiterated the rule that the Court of Appeal will not ordinarily interfere with the findings of facts by the trial judge but where there is ample evidence and the trial judge failed to evaluate it and make correct findings on the issue the Court of Appeal is in much a good position as the trial court to deal with the fact and to make proper findings. However, in a matter where so much turns on the credibility or reliability of witnesses, the proper course to be taken by the Court of Appeal is to make an order for a retrial. See Chief James Okpiri & Ors v. Chief Igoni Jonah & Ors (1961) 1 All NLR 102; Olalere Obadara & Ors v. The President Ibadan West District Court (1964) 1 All NLR and Oladipo Maia v. Learndro Stocco (1968) NMLR 172/
This piece of evidence is significant in determining whether or not there was criminal misappropriation or it was a mere business transaction. If the accused failed to deliver the fertilizers as promised and did not refund the money given him, and failed to even account for the money then he could be held to have criminally withheld it, and criminal intention could be inferred form the circumstances.
If on the other hand, the contract was terminated by PW1 and PW2 then the prosecution’s case would have to collapse. But determining the above would involve resolution of conflicting and divergent evidence of PW1, PW2 and the accused which the learned trial judge failed, with due respect to do.”
Thus, the court below found that there were conflicting and divergent evidence of PW1, PW2 and the appellant, which the trial court failed to resolve. It stated further that the learned trial judge arrived at his
conclusion by choosing and picking out of the conflicting and divergent versions of the evidence of PW1 and the accused/respondent on crucial points without showing how he arrived at his conclusion that the contract was rescinded by PW1 and PW2 in the face of the evidence of PW1 without disbelieving any of the witnesses. This, the court below observed, turned on the credibility of witnesses which cannot be assessed by it not having had the advantage of seeing the witnesses. In the case of Duruaku Eke & Ors v. Udeozor Okwaranyia & Ors (2001) LPELR 1074, this court stated as follows:
“It may well happen that a trial court made no finding of fact on conflicting material evidence adduced on an issue by both parties to an action, the resolution of which is essential to the just determination of the case, the proper course is to order a retrial unless the circumstances of the case do not warrant such an order”
See further: Chief James Okpiri & Ors v. Chief Iqoni Jonah & Ors (1961) 1 All NLR 102; Olalere Obadara & Ors v. The President, lbadan West District Court (1964) 1 All NLR; Oladipo Maia v. Learndro Stocco (1968) 1 NMLR, 172. It is thus, the primary duty of any trial court, where assessment or evaluation of evidence rests on the credibility of witnesses to unfailingly discharge that function as it is the one and only court that had the advantage of seeing and observing the witnesses. Where it however fails to discharge such responsibilities, then an appeal court is in much a good position as the trial court to deal with the fact and make proper findings. In the case of Shell BP Petroleum Dev. Co. Nigeria Ltd. v. Cole & Ors (1978) 3 SC (reprint) 128; this court, per Bello, JSC (as he then was and of blessed memory), held, among other things, that:
“…… In a matter where so much turns on the credibility or reliability of witnesses, the proper course to be taken by the Court of Appeal is to make an order for a retrial.”

It was the duty of the trial court to resolve the divergent and conflicting evidence placed before it. The court below found that that duty was not discharged by the trial court. The court below made two fundamental observations which would necessitate a retrial: (a) there was the need to determine whether there was criminal misappropriation in the transaction between the parties in dispute or, it was a mere business transaction. If the respondent had failed to deliver the fertilizers as agreed and did not refund the money said to have been collected by him, and even failed to account for the money, he could be held to have criminally withheld the money and in that case criminal intention could easily be inferred from the circumstances, (b) If, on the other hand, the contract was, as alleged, terminated by PW1 and PW2, then the prosecution would have failed to establish the offence of criminal misappropriation. In either case, determining any of the above allegations would call for the resolution of the evidence of PW1, PW2 and the respondent which the court below found to be divergent and conflicting. This was found by the court below, not to have been done by the trial court. That was why the court below set aside the judgment of the trial court and ordered for a retrial.
Permit me to remind your lordships that a retrial order becomes necessary when there had been an error in law or an irregularity in the procedure that does not make the trial a nullity or results in miscarriage of justice. In the case of Moshood v. The State (2004) 14 NWLR (Pt.893) 422 at 428, the Supreme Court spelt out the criteria for a retrial order: The court must be satisfied that: (a) the evidence taken may otherwise disclose the commission of the offence substantially, (b) there is no special circumstance that will render it oppressive to put the accused to trial a second time; (c) that to refuse an order for a retrial would result in a greater injustice; (d) that the offence or offences of which accused was convicted or the consequences to the accused or any other person of the conviction or acquittal of the accused, are not merely trivial. The case of Abodundu v. The Queen (1958) 4 FSC 70 at 73 was cited in support. In further support of the retrial order, the case of Duruaku Eke & Ors v. Udeozor Okwaranvia & Ors (2001) LPELR 1074, this court, per Uwaifo, JSC stated as follows:
“It may well happen that a trial court made no finding of fact on conflicting material evidence adduced on an issue by both parties to an action, the resolution of which is essential to the just determination of the case; the proper course is to order a retrial unless the circumstances of the case do not warrant such an order.”
The court below is justified in my view, in making an order for retrial because there are found to be two conflicting versions of the essential facts of the case – time span of delivery of the subject of the contract i.e. fertilizer and divergent and conflicting evidence of PW1, PW2 and the respondent. Specific findings on the issues in controversy, will have to be made by the trial court. In most time such findings will depend on the reliability of the witnesses who testified on either side. Where the trial court failed to indicate which version it accepted as true, an appellate court cannot believe witnesses it never saw or heard. In that circumstances, the appeal may be allowed as done by the court below and retrial order be made. Equally, when a trial judge makes a wrong approach to the assessment of evidence especially in failing to resolve conflicting evidence. See: Ezeoke v. Nwagbo (1988) 1 NWLR (Pt.72) 616; Oke & Ors v. Eke & Ors (supra); Okpisi v. Jonah (1961) 1 All NLR 102. It is clear from the Record of Appeal where the court below observed that the learned trial judge, without showing how he arrived at his conclusion, “picked and chose” from the “conflicting and divergent versions” of the evidence of PW1 and the accused on a crucial point in the case; how the learned trial judge arrived at the conclusion that the contract was rescinded by PW1 and PW2 in the face of the evidence of PW1 without believing any of the witnesses cannot be assumed but must be evident from the judgment and on the face of the record. The court below tied all these lapses to the failure of the learned trial judge to assess the credibility of the witnesses which is a cardinal requirement placed on the shoulders of a trial judge.

In another dimension, the learned counsel for the appellant made interesting submissions in relation to the general powers of the court below and by extension to this court. He has said, inter alia:
“Meanwhile, this court has held in a long line of authorities, particularly the recent case of Olodo v. Josiah (2010) 18 NWLR (Pt.1225) 653 at 672 para A-C that where a trial court fails to make findings on material and important issues of fact, the appellate court will have no alternative than to make such findings on facts. The court further held in that case that an appellate court will interfere with the evaluation of evidence by a trial court where, inter alia, the trial court failed to make proper use of the opportunity of seeing, hearing and observing the witnesses.
It is beyond dispute that in the instant case the trial court had failed to make proper use of that opportunity. The court below, per Awotoye, JCA, has this to say in that regard (page 173):
‘I have gone through the entire proceedings. The learned trial judge who had the opportunity to see and hear the witnesses failed to resolve this conflicting on a fundamental point in the evidence of both parties.’
We therefore submit that the proper thing for the court below to have done in the circumstances of this case was not to make an order of retrial but to draw the necessary inferences and make the appropriate findings as held by this court in the above cited case and the case of Adebayo v. Shogo (2005) 7 NWLR (Pt.925) 467 at 481 paras D-G.
In the latter case, this court held that:
‘Where the findings of fact made by the trial court are not supported by the credible evidence given or by the weight of evidence and notwithstanding the use of ‘I believe’, ‘I do not believe’, ‘I reject as false’, without really evaluating the evidence of vital witnesses, an appeal court can itself evaluate the evidence and make findings as the trial court.’
Incidentally, even the court below has restated this position in the recent case of Borishade v. FRN (2012) 18 NWLR (Pt.1332) 347 at 40-402 paras. G-A, 409 paras D-G and 411 paras D-F. It is remarkable that these powers have statutory backing under Section 16 of the Court of Appeal Act (as amended) and Order 4 rule 3 of the Court of Appeal Rules, 2011 as well as Section 26 of the Supreme Court Act and Order 8 rule 1 (2) of the Supreme Court Rules, 1985 (as amended).”
My lords, the general powers exercisable by this court on appeal are conferred by Sections 22 and 26 of the Supreme Court Act, Cap 424, Laws of the Federation of Nigeria, 1990 and Order 8 rules 12 and 13 of the Supreme Court Rules, 1985 (as amended). It is to be noted however, that under the Act and the Rules of this court and similar provisions of the court below, referred to earlier by learned counsel for the appellant and upon which he placed reliance to submit that the court below was wrong to have ordered for a retrial and that this court should reverse the retrial order and substitute it with an order of conviction. My understanding in that respect is a little different from that of the learned counsel for the appellant in that such provisions (where applicable) empower the court to draw inferences where there is no dispute about the facts; where the only dispute is the inference to be drawn either from agreed facts or facts as found, then this court, is in such a case, in as good a position as the trial court to draw the correct inferences. See:
Obodo v. Ogba (1987) 2 NWLR (Pt.54)1. It is gratifying to note that the learned counsel has, himself, conceded that there was a little divergence in evidence placed before the trial court by the parties:
“Although we concede that there is a little divergence (which is a common feature of the evidence of truthful witnesses) as to the exact agreed period of time, but a point of convergence in the evidence of the prosecution was that the parties agreed on time of delivery of the fertilizers by the respondent.”
Learned counsel for the appellant should know very well that speculations have no place in law and courts of law discourage speculations. Certainty is the hallmark of evidence law and our courts lay heavy premium on it. It is my candid belief that it is only a retrial of this case that will meet the justice of this case. This will ultimately assuage the “great concern” of the appellant as all facts in the case must be laid wide open by the parties before the court; all witnesses are methodically examined and cross examined and their evidence carefully assessed and evaluated. This is the only way to guarantee or ensure
fair trial. The case appears to be a criminal matter. However, fair trial should not be sacrificed at the altar of the doctrine of double jeopardy. It is true that “justice delayed is justice denied”. Equally, “justice rushed is justice denied.”

I am in agreement with the court below that the case should go back to the trial court for a retrial. A retrial, my lords, is always aimed at doing justice between the parties to the case. It is not to favour one of the parties at the expense of the other. It is not, therefore, ordered merely to afford an opportunity to the plaintiff in a civil matter, or prosecution in a criminal case to improve upon a hopeless case. See: Ayoola v. Adebayo (1969) 1 All NLR 159 at 162; Solomon & Ors v. Mogaji & Ors (1982) 11 SC 1 at 24 & 25: Total Nigeria Ltd. v. Nwako (1978) 5 SC 1 at 14; Okpiri v. Jonah (1961) 1 All NLR 102.
In conclusion, I find no merit in this appeal. The appeal is determined on this issue alone. I find no need to consider appellant’s second issue. Accordingly, this appeal is hereby dismissed by me. I affirm the court below’s judgment which ordered for a retrial of the case.
MARY UKAEGO PETER-ODILI, JSC: I agree with the judgment just delivered by my learned brother, Ibrahim Tanko Muhammad JSC and to underscore the support I have in the reasoning’s from which the decision came about, I shall make some remarks.

This is an appeal against part of the judgment of the Court of Appeal, Sokoto Division or Court below or Lower court which handed the decision on 30th June, 2014. Although the appellant is satisfied with the decision wherein the earlier acquittal of the respondent by the trial High Court on a one count charge of criminal misappropriation of the sum of N64,800,000.00 was set aside, the dissatisfaction- of the appellant is as to the consequential order of re-trial given by the Court below.
The details of the facts leading to this appeal are set out fully in the lead judgment and so no useful purpose will be derived repeating them unless there comes a need to refer to any part thereof.
On the 7th November 2018 date of hearing learned counsel for the appellant, M. S. Abubakar Esq., Deputy Chief Legal Officer of EFCC of the Kano Zonal Office adopted the brief of argument filed on the 24th October 2014 and a reply brief filed on 28/5/2018 and deemed filed on 31/5/18. He crafted two issues for determination, viz;-

i)Whether the learned Justices of the Court of Appeal were right in making an order of re-trial having set aside the acquittal of the respondent? (Distilled from Grounds 2, 3 & 4 of the Grounds of Appeal).
ii)Whether the learned Justices of the Court of Appeal have made an order of conviction of the respondent after setting aside his earlier acquittal by the trial court? (Distilled from Grounds 1, 5 & 6 of the Grounds of Appeal).
Learned counsel for the respondent, Adeleke Agbola Esq. adopted the brief of argument filed on 6/3/2018 and deemed filed on 31/5/2018 and he formulated two issues for determination which are thus: –
A.Whether the prosecution/appellant proved the charge against the respondent beyond reasonable doubt? (Ground 5).
B.Whether the learned Justices of the Court of Appeal were right in making an order of re-trial and not conviction, having set aside the acquittal of the respondent.
In the circumstances, I shall utilise the issues as crafted by the appellant in the determination of the appeal as it is easy to use.
ISSUES 1 & 2:
Whether the learned Justices of the Court of Appeal were right in making an order of re-trial having set aside the acquittal of the respondent.
Whether the learned justices of the Court of Appeal should have made an order of conviction of the respondent after setting aside his earlier acquittal by the trial court.
Learned counsel for the appellant, contended that the Court below came to a wrong decision in ordering a re-trial while setting aside the acquittal order of the trial High Court and had done so without considering material and important issues of fact. He cited Shell BP Petroleum Dev. Co. Nig. Ltd. v Cole (1978) 3 SC (Reprint) 128; Olodo v Josiah (2010) 18 NWLR (Pt.1225) 653 at 672; Adebayo v Shogo (2005) 7 NWLR (Pt.925) 467 at 481; Borishade v FRN (2012) 18 NWLR (PL 1332) 347.
That the presence of documentary evidence (Exhibit C) which were pointed out to the Court below and other forms of evidence (circumstantial evidence) should have rendered the task of making the correct findings by the court below easier. He referred to Yaro v Arewa Construction Ltd (2007) 17 NWLR (Pt.1063) 333 at 373; Karibo v Grend (1992) 3 NWLR (Pt.1992) 3 NWLR (Pt.230) 426 at 441; Ugbaka v State (1994) 8 NWLR (Pt.364) 568; Ajiboye v State (1994) 8 NWLR (Pt.364) 587.
It was further submitted for the appellant that justice will not be served with the retrial which will take ages to conclude. He cited Oronsaye v State (2014) 6 NWLR (Pt.1404) 484 at 514-515; State v Gwonto (1983) NSCC 104 at 119; Ogbomor v State (1985) 1 NASCC 224 at 239; Ukegbu v State (1979) 11 SC 1; Abudundu v Queen (1959) SCNLR 162; Salawu v State (2011)7 MJSC 95.
For the respondent, it was contended that the appellant/prosecution failed to prove the case against the respondent beyond reasonable doubt and the court below ought to have upheld the judgment and ‘acquittal of the respondent but ordering a retrial showed there was doubt in the mind of the justices of the Court of Appeal. 1 He cited Alabi v The state (19930 7NWLR (Pt.307) 511 at 523 Nwokedi v COP (1977) 3 SC at 40.
That the Court below was right in ordering a retrial even though the proper order ought to have been the upholding of the court of trial’s acquittal. He referred to Moshood v State (2004) 14 NWLR (Pt.893) 422 at 428; Duruaku Eke & Ors Udeozor Okweranya & Ors (2011) LPELR-1074 (SC) PP.31-32; Michael Nwangwa & Ors v The State (1997) LPELR-6315 (SC); Onwe v The State (2017) LPELR-42589 (SC) PP.48-50; Gabriel Adekunle Ogundepo & Anor v Thomas Eniyan Olumesan (2011) LPELR-1297 (SC).
The background facts of this case are that the respondent who is a businessman and who specialised in the supply of fertilizer was engaged by the PW1 to supply him with 36 truckloads of fertilizer at the cost of N64,800,000.00 which money was paid into respondent’s bank account. The respondent immediately distributed the money to his business partners for the supply of the trucks of fertilizer and no particular period was agreed upon by the parties within which the transaction would be perfected.
After the distribution of the money to his business partners, PW1 called the respondent stating that he was no longer interested in the business and that the respondent should-return the money. No reason was proffered for the change of mind.
The respondent pleaded for a period of one month within which to get back the monies from his business partners and PW1 agreed. However, four days after the agreed arrangement EFCC operatives started harassing the respondent in his house and the EFCC operative beat up and arrested security personnel of the respondent and later respondent himself was arrested and charged before the trial court for criminal misappropriation. The trial court acquitted and discharged the respondent and the appellant dissatisfied appealed to the Court below which reversed that decision and ordered a re-trial which dissatisfied the appellant and it has appealed to this Court.
The charge against the respondent at the trial court was criminal misappropriation and for the prosecution to succeed under Section 308 of the Penal Code, three essential ingredients must be established beyond reasonable doubt thus: –
a. The property in question is a movable property.
b.That the accused converted or misappropriated it to his own use.
c.That he did so dishonestly.

It needs be said that all the three essential elements must be proved, none missing before the requirement of the law on the standard of proof beyond reasonable doubt is met. Where those essential ingredients of the offence are not proved, the accused is entitled to an acquittal. See Alabi v The State (1993) 7 NWLR (Pt.307) 511 at 523; Nwokedi v COP (1977) 3 SC 35 at 40.
To answer the crucial question, whether or not the prosecution proved its case against the accused/respondent beyond reasonable doubt and what this court’s reaction is to the decision of the Court below, I shall recast some excerpts of the Court below’s views as follows: –
“This piece of evidence is significant in determining whether or not there was criminal misappropriation or it was a mere business transaction. If on the other hand, the contract was terminated by PW1 and PW2 then the prosecution (sic) case would have to collapse. But determining the above would involve resolution of conflicting divergent evidence of PW1 and PW2 and the Accused which the Learned Trial Judge fail, with due respect, to do”- See pages 175 to 176 of the Record.
Clearly, the Court of Appeal was not in a position to make a decision based on a definite finding in the tight of what it found hence the safe harbour of the order for retrial to clear the grey areas. I cannot fault this position of the court below being guided by the settled principles of law in this regard and a reference to a few dicta of this court would show the way.
In the case of Duruaku Eke & Ors v Udeozor Okwaranyia & Ors (2001) LPELR-1074 (SC) per Uwaifo JSC at pages 31-32 stated thus: –
“It may well happen that a trial court made no finding of fact on conflicting material evidence adduced on an issue by both parties to an action, the resolution of which is essential to the just determination of the case, the proper course is to order a retrial unless the circumstances of the case do not warrant such an order.
“The main question for determination in this appeal is whether the prosecution proved its case against the appellants beyond reasonable doubt as required by law. It is clear from the judgment of the learned Judge that he relied on the evidence of PW1 and Exhibit A to convict the appellant. I must state from the outset that in all criminal trials the burden is on the prosecution to prove beyond reasonable doubt the guilt of the accused. See Baguga v State (1996) 7 NWLR (Pt.460) 279; Onubogu v State (1974) 9 SC 201; Chia v State (1996) 6 NVVLR (Pt.455) 465; so that where there is material contradiction on vital issues which create reasonable doubt, the learned trial judge has a duty to resolve the doubt in favour of the accused. See Baruwa v State (1996) 7 NWLR (Pt.460) 302”. (Underlining mine).
The situation on ground being dicey, the court below had the reluctance having set aside the acquittal of the respondent as baseless to go ahead to convict as the appellant urges. However, the scenario has not enhanced the position of the respondent either for this court to invoke its powers under Section 22 of the Supreme Court Act and upturn the decision of the Court below while upholding the judgment of the trial court acquitting the respondent
It is indeed within the purview of Section 22 of the Supreme Court Act in its empowerment of the Supreme Court to ensure that issues in controversy between the parties are resolved once and for all time. That occurs where the Court of Appeal fails to do what it ought to do whereby this court must rise to the occasion and do what the Court of Appeal should have done. In this, I call in aid Gabriel Adekunle Ogundepo & Anor v Thomas Eniyan Olumesan (2011) LPELR-1297 Per Rhodes-Vivour JSC.

I see what is before this court as not so simple and in line with what can propel the court into the utilisation of its powers under Section 22 of the Supreme Court Act, rather what is evident is that the Court of Appeal had no option than to give the decision it made in the circumstances armed with the materials before it. therefore, the court below having carried out the duty imposed it, on it judicially and judiciously, the court cannot go outside that but to tow the same line. It goes without saying that the court below being right to order a retrial, that is the route to follow.

From the foregoing and the better reasoned lead judgment, I dismiss the appeal and abide by the consequential orders made.
KUDIRAT MOTONMORI OLATOKUNBO KEKERE-EKUN, JSC: I have had a preview of the judgment of my learned brother, Ibrahim Tanko Muhammad, JSC just delivered. I agree with the reasoning and conclusion that this appeal lacks merit and should be dismissed.

The respondent herein was charged before the High Court of Zamfara State for criminal misappropriation contrary to Section 308 and punishable under Section 309 of the Penal Code. He pleaded not guilty to the charge.
The facts of the case are that the respondent is a businessman who deals in fertilizers. He was contracted by PW1 to supply 36 truckloads of fertilizer at a total cost of N64,800,000.00. The full amount was paid into his account and he disbursed the funds to his suppliers. Immediately after the disbursement, PW1 terminated the contract and demanded a refund of the contract sum. The respondent requested and was granted a period of one month to comply. However, before the 30 days were up, indeed, four days after he was given the 30 days’ moratorium, he was arrested by the Economic and Financial Crimes Commission (EFCC) and charged to court for criminal misappropriation. At the conclusion of the trial, he was acquitted and discharged. The appellant was dissatisfied and appealed to the court below. The court allowed the appeal in part. It set aside the respondent’s acquittal and discharge but ordered a retrial for the following reasons:
“It needs to be noted that PW1 gave evidence that the accused promised to complete the job within 2 weeks, PW1, Mustapha Haske gave evidence further,
“At the expiration of 2 weeks there was no supply, he pleaded for an extension of time of one week. I told him I have to notify the owner, Alh. Musa Baba.”
This evidence contradicts that of the accused. The accused in his evidence stated thus:
“There was no specific time of delivery with PW1 because it is being purchase (Sic) bit by bit”
I have gone through the entire proceedings. The learned trial Judge who had the opportunity to see and hear the witnesses failed to resolve this conflict on a fundamental point in the evidence of both parties. The agreement document which was not tendered but which the learned trial Judge relied heavily upon was not in my respectful view, the genesis of the problem. It is from the origin of the problem that the criminal intention or otherwise of the accused/respondent could be determined.

………..
The learned trial Judge in my respectful view, without showing how he arrived at the conclusion, picked and chose out of the conflicting and divergent versions of the evidence of PW1 and the accused on a crucial point in this case. How His Lordship arrived at the conclusion that the contract was rescinded by PW1 and PW2 in the face of the evidence of PW1 without disbelieving any of the witnesses cannot be assumed but must be evident from the judgment and or face of the record. This turns on the credibility of the witnesses, which cannot be assessed by this court not having had the advantage of seeing the witnesses.”
(See pages 173-174 of the record).
My Lords, the law is by now very well settled that a trial court has the unique advantage of seeing and hearing witnesses testify and of observing their demeanour. It is for this reason that the evaluation of evidence and the ascription of probative value thereto is primarily that of the trial court. Particularly in a criminal trial, where the prosecution must prove its case beyond reasonable doubt, it must be apparent on the record that the court gave adequate consideration to the evidence on both sides and reasons given for believing the evidence of one side as against the other. See: Adamu Vs The State (1991) 4 NWLR (Pt, 187) 530; Awopejo Vs The State (2001) 18 NWLR (Pt, 745) 430; Boy Muka Vs The State (1976) 9 & 10 SC 305; Ibeh Vs The State (1997) 1 NWLR (Pt, 484) 632.
In the instant case, the lower court found that the learned trial Judge abdicated his duty to properly evaluate the evidence before him and assess the credibility of the witnesses on a crucial issue that would have determined the case one way or the other. In Mogaji Vs Odofin (1978) 4 SC 65, the complaint was that the learned trial judge reached conclusions in the matter before him on the evidence of the plaintiff alone. It was after he had made these conclusions that he proceeded to consider the evidence of the defendant.

On appeal to this court, the judgment of the trial court was set aside. This court held at page 70 lines 17¬23 (Supra):
“As we are unable to say what his findings would have been had he considered the totality of the evidence adduced by both parties and weighted it properly before coming to a decision, we agree with learned counsel for the plaintiffs/respondents that the justice of the case would be met by sending the case back for trial de novo before another Judge.”
See also: Shell BP Petroleum Dev. Co- Nig, Ltd. Vs Cole & Ors, (1978)3 SC (Reprint) 128 & 135 Lines 11-22.
I am therefore in full agreement with the learned Justices of the court below that an order for retrial before a different Judge of the High Court of Zamfara State, other than M.B. Tukur, J., will meet the justice of this case.

I concur with my learned brother in the lead judgment in dismissing the appeal.

EJEMBI EKO, JSC: I read in draft the judgment just delivered in this appeal by I. T. Muhammad, JSC and I think I should endorse it. I hereby adopt it.

The lower court ordered retrial. The basis for the order is that-
The learned (trial) Judge – without showing how he arrived at the conclusion picked and chose out of the conflicting and divergent versions on a crucial point in the case. How His Lordship arrived at the conclusion that the contract was rescinded by PW.1 and PW.2 in the face of the evidence of PW.1 without disbelieving any of the witnesses cannot be assumed but must be evident from the judgment and on the face of the record. This turns on the credibility of witnesses which cannot be assessed by this Court not having had the advantage of seeing the witnesses –
It was on the basis of the failure of the trial Court to properly evaluate the totality of the testimonies of the prosecution witnesses, particularly the PW.1 and PW.2, that the lower Court ordered retrial. It emphasised the point that the evaluation of the evidence of PW.1 and PW.2 turns on the credibility of the two crucial witnesses. The finding of fact and the lower Court’s exercise of its undoubted discretion on it have not been challenged. Ordinarily, an attack on wrongful exercise of discretion is predicated on a number of grounds including mistake of law, or disregard of principle, or under a misapprehension of the facts, or taking into consideration extraneous or irrelevant matters, or some other grounds suggesting that the discretion was not exercised judicially: ODUTOLA v. KAYODE (1994) 2 NWLR (pt. 324) 1; (1994) 2 SCNJ 21. It has never been a judicial principle that the appellate Court could interfere with the exercise of discretion merely on the ground that it would have, in the circumstances, exercised its discretion differently: HADMOR PRODUCTIONS LTD. v. HAMILTON (1983) A.C. 191, SARAKI v. KOTOYE (1990) 6 SCNJ 31 at 31.
In other circumstances where the witnesses called by the prosecution, gave different versions of the same incidence or transaction, it had been held that the Court cannot pick and choose which witness to believe and which witness to disbelieve, and that in the circumstance the prosecution had failed to prove the guilt of the accused beyond reasonable doubt: PAUL AMEH v. THE STATE (1978) 6 – 7 SC 27; BOY MUKA v. THE STATE (1976) 10 SC 305; JAMES IKHANE v. COMMISSIONER OF POLICE (1977) 6 SC 119.
In the instant case I have my constraints. The lower Court had exercised its discretion in ordering retrial on some facts, including the failure of the trial Court to properly evaluate the evidence at its disposal before it preferred one piece of evidence to the other. There is no cross appeal challenging the exercise of the discretion. Rather the Respondent, in his traditional role, is vigorously defending the judgment. The appellate Court cannot be too quixotic to act as Knight errant going about, uninvited, to redress imaginary wrongs.
In the circumstance, I hereby affirm the orders made by the lower Court.
AMIRU SANUSI, JSC: I was opportune to read before now, a draft copy of the Judgment just rendered by my learned brother I. T. Muhammad JSC. I am at one with his reasoning and the conclusion reached that this appeal is unmeritorious and ought to be dismissed. The facts of the case have been ably and adequately summarised in the lead Judgment.

A painstaking perusal of the Judgment of the trial court clearly shows that the trial court failed to properly evaluate the evidence adduced in the case before it. Such failure on the part of the trial court resulted in it giving a lopsided assessment or evaluation of the evidence. I am also in entire agreement with the lower court that this is a clear example of a case that should be remitted to the High Court of Zamfara State for purpose of retrial by a different Judge other than the trial Judge who had earlier heard and determined this case.
In the result, while affirming this Judgment of the lower court, I also endorse the consequential orders made by my noble lord in the lead Judgment.
EJEMBI EKO, JSC: I read in draft the judgment just delivered in this appeal by I. T. Muhammad, JSC and I think I should endorse it. I hereby adopt it.

The lower court ordered retrial. The basis for the order is that-
The learned (trial) Judge – without showing how he arrived at the conclusion picked and chose out of the conflicting and divergent versions on a crucial point in the case. How His Lordship arrived at the conclusion that the contract was rescinded by PW.1 and PW.2 in the face of the evidence of PW.1 without disbelieving any of the witnesses cannot be assumed but must be evident from the judgment and on the face of the record. This turns on the credibility of witnesses which cannot be assessed by this Court not having had the advantage of seeing the witnesses –
It was on the basis of the failure of the trial Court to properly evaluate the totality of the testimonies of the prosecution witnesses, particularly the PW.1 and PW.2, that the lower Court ordered retrial. It emphasised the point that the evaluation of the evidence of PW.1 and PW.2 turns on the credibility of the two crucial witnesses. The finding of fact and the lower Court’s exercise of its undoubted discretion on it have not been challenged. Ordinarily, an attack on wrongful exercise of discretion is predicated on a number of grounds including mistake of law, or disregard of principle, or under a misapprehension of the facts, or taking into consideration extraneous or irrelevant matters, or some other grounds suggesting that the discretion was not exercised judicially: ODUTOLA v. KAYODE (1994) 2 NWLR (pt. 324) 1; (1994) 2 SCIMJ 21. It has never been a judicial principle that the appellate Court could interfere with the exercise of discretion merely on the ground that it would have, in the circumstances, exercised its discretion differently: HADMOR PRODUCTIONS LTD. v. HAMILTON (1983) A.C. 191, SARAKI v. KOTOYE (1990) 6 SCNJ 31 at 31.
In other circumstances where the witnesses called by the prosecution, gave different versions of the same incidence or transaction, it had been held that the Court cannot pick and choose which witness to believe and which witness to disbelieve, and that in the circumstance the prosecution had failed to prove the guilt of the accused beyond reasonable doubt: PAUL AMEH v. THE STATE (1978) 6 – 7 SC 27; BOY MUKA v. THE STATE (1976) 10 SC 305; JAMES IKHANE v. COMMISSIONER OF POLICE (1977) 6 SC 119.
In the instant case I have my constraints. The lower Court had exercised its discretion in ordering retrial on some facts, including the failure of the trial Court to properly evaluate the evidence at its disposal before it preferred one piece of evidence to the other. There is no cross appeal challenging the exercise of the discretion. Rather the Respondent, in his traditional role, is vigorously defending the judgment. The appellate Court cannot be too quixotic to act as Knight errant going about, uninvited, to redress imaginary wrongs.
In the circumstance, I hereby affirm the orders made by the lower Court.

COUNSELS

M. S. Abubakar Esq. Assistant Chief Legal Officer (EFCC), with Musa Isah, Senior Legal Officer (EFCC) for the Respondent|Adeleke Agbola, Esq. with Oluwole Abidakwu Esq. for the Respondent|

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