GEORGE UBOH v. FEDERAL REPUBLIC OF NIGERIA
(2019)LCN/12649(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 5th day of February, 2019
CA/A/490C/2016
RATIO
COUNSEL: DUTY OF THE COUNSEL
“As held by this Court in Buba v State (1992) 1 NWLR (Pt. 215) 16 ‘In any proceeding where a party is represented by counsel it is assumed that counsel knows what to do at each stage of a proceeding and would accordingly do it as the need arises. In Okaroh v. The State (1990) 1 NWLR (Pt. 125) 128, the Supreme Court held that ‘A counsel in Court in a criminal trial has a very important and sacred duty to perform. He owes that duty not only to his client and the Court but also to society at large. It is of the very essence of that duty that he should promptly take objection to every irregularity relating to procedure or to evidences called at the trial. Where, as in the instant one, such counsel fails to object to an irregularity in the proceeding it means that he saw nothing wrong with the procedure adopted at the trial’. The above reasoning is equally applicable to the situation in this appeal.” PER EMMANUEL AKOMAYE AGIM, J.C.A.
JUSTICES
ADAMU JAURO Justice of The Court of Appeal of Nigeria
STEPHEN JONAH ADAH Justice of The Court of Appeal of Nigeria
EMMANUEL AKOMAYE AGIM Justice of The Court of Appeal of Nigeria
Between
GEORGE UBOH – Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIA – Respondent(s)
EMMANUEL AKOMAYE AGIM, J.C.A. (Delivering the Leading Judgment):
This appeal No. CA/A/490C/2016 was commenced on 22-7-2016 when the appellant herein filed a notice of appeal with 20 grounds against the judgment of the High Court of the Federal Capital Territory in charge No. FCT/HC/CR/21/2009. The notice of appeal was with leave of this Court amended twice. The further amended notice of appeal containing 18 grounds of appeal is the extant notice of appeal.
Both sides filed, exchanged and adopted the following briefs- further amended appellant’s brief filed on 5-10-2018 and deemed filed on 13-4-2018 and amended respondent’s brief filed on 9-11-2018 and deemed filed on 13-11-2018.
The appellant’s further amended brief raised the following issues for determination-
1. Whether the Court should discharge and acquit the Appellant of the three counts charge punishable under Section 314 of the Penal Code which Appellant pleaded not guilty to on 24/2/2009; and is it the right or role of the Learned Trial Judge to say that the Prosecutor made a mistake to have charged the appellant under Section 314 of the Penal Code instead of Section 312 of the Penal Code when the Prosecution failed to prove that Appellant is a clerk or servant or employee of Police Equipment Foundation, and is Section 223 of Administration of Criminal Justice Act 2015 or defunct Section 218(1) of the Criminal Procedure Code Act for substitution of charge as held and done by the Lower Court suo motu without fair hearing to the parties and in judgment substituted Section 314 of the Penal Code under which the Appellant was charged with Section 312 of the Penal Code and convicted and sentenced Appellant even without plea to the new charge; and are the reasons given in support of the substitution justified and did the prosecution prove beyond reasonable doubt that appellant is guilty of the charge of criminal breach of trust punishable under Section 312 of the Penal Code. (Distilled from Grounds 2, 3, 8, 9 and 10 of the Amended Notice of Appeal)
2. Whether from the circumstance on record, Exhibit ‘D’ and ‘E’ are in law admissible in evidence and worthy to be used and relied upon in the judgment to convict the accused. (Distilled from Ground 4 of the Amended Notice of Appeal)
3. Whether in law the inconsistency rule applies to the accused person (Appellant), and the Learned Trial Judge was right to rely on Exhibits tendered by prosecution and infer dishonesty on the part of the Appellant and dwelt on the perceived inconsistencies of extra-judicial Statements and oral evidence of the Appellant (Accused) to reject defence evidence and use same rejected evidence among others to convict the Appellant under Section 311 and 312 of the Penal Code and sentenced him without dwelling and taking cognizance of palpable inconsistencies and lacunae in the prosecution’s case and mens rea as an element of guilt. (Distilled from Grounds 1, 5, 6, 7, 15 & 16 of the Amended Notice of Appeal)
4. Whether from what transpired on record of the Lower Court, Exhibit A was rightly admitted and admissible in evidence and appellant was given fair hearing before it was admitted in evidence and of what effect. (Distilled from Ground 11 of the Amended Notice of Appeal)
5. Whether the evidence of P.W.1 (Muniru David Shielu) should not be discountenanced and expunged from the record for being worthless and incompetent having not concluded his cross-examination (Distilled from Ground 12 of the Amended Notice of Appeal)
6. Whether the sentence passed by the Learned Trial Judge on the Appellant is justified in law and supported by evidence (Distilled from Grounds 14 and 18 of the Amended Notice of Appeal)
7. Whether the Learned Trial Judge was right to have expunged Exhibit J from the record. (Distilled from Ground 13 of the Amended Notice of Appeal)
8. Whether the Lower Court was right to have used the evidence of the P.W.7 and rely on same to safely convict the Appellant without the Lower Court warning itself when there is copious evidence on record that there is animosity and grouse between the P.W.7 and the Appellant. (Distilled from Ground 17 of the Amended Notice of Appeal).
The respondent’s amended brief raised the following issues for determination-
1. Whether the learned trial Judge was right when in his judgment after holding that the Respondent failed to prove that the Appellant was a clerk or servant or employee of police Equipment Foundation under Section 314 of the Penal Code which he was charged proceeded to convict him under Section 312 of the Penal Code which he was not charged. (Distilled from Grounds 1, 2, 3, 8, 9 and 10 of the Further Amended Notice of Appeal)
2. Whether the learned trial Judge was right when he admitted Exhibits D and E, and relied on them in his judgment to hold that the Appellant was entrusted with the said vehicles. (Distilled from grounds 4 and 5 of the Further Amended Notice of Appeal)
3. Whether the learned trial Judge was right when he rejected the Appellant’s bona fide claim of right and held that the Appellant sold the said vehicles dishonestly. (Distilled from grounds 6, 7, 15, 16 and 18 of the Further Amended Notice of Appeal)
4. Whether the admission of Exhibit A by the learned trial Judge and reliance on same in his judgment occasioned a miscarriage of justice or denial of fair hearing to the Appellant. (Distilled from Ground 11 of the Further Amended Notice of Appeal)
5. Whether the learned trial Judge was wrong when he relied in his judgment on the testimony of PW1. (Distilled from grounds 12 of the Further Amended Notice of Appeal)
6. Whether the learned trial Judge was right when in his judgment, he expunged exhibit J, the extra judicial statement of the PW7 who was a witness and did not make any use of it; and whether the expunging of same occasioned a miscarriage of justice to the Appellant. (Distilled from ground 13 of the Further Amended Notice of Appeal)
7. Whether the learned trial Judge was right when he relied on Section 319 (2) (sic 319(1)(a) of the Administration of Criminal of Justice Act, 2015 to order that the Appellant should pay compensation in the sum of N12,000,000.00 being the estimated value of the four vehicles to the Police Equipment Foundation. (Distilled from ground 14 of the Further Amended Notice of Appeal)
8. Whether the learned trial Judge was wrong in relying on the testimony of the PW7 in his judgment, and if so, whether it occasioned a miscarriage of justice to the Appellant. (Distilled from ground 17 of the Further Amended Notice of Appeal)
I will determine this appeal on the basis of the issues raised for determination in the appellant?s further amended brief.
Let me start with issue No. 1
I have carefully read and considered the arguments of both sides under this issue.
The appellant herein was charged with, arraigned and tried for three counts of criminal breach of trust contrary to S.314 of the Penal Code as follows-
Count One
‘That you George Uboh ?M? sometimes in 2007 at Abuja in the Abuja Judicial Division of the High Court of the Federal Capital Territory, being a servant in the employment of the Police Equipment Foundation and in such capacity entrusted with certain property, to wit: 6 (six) units of operational vehicles did commit criminal breach of trust by selling one Toyota Hilux Pick-up van through one Egbon Blessing and thereby committed an offence punishable under Section 314 of the Penal Code.’
Count Two:
‘That you George Uboh ?M? sometimes in 2007 at Abuja in the Abuja Judicial Division of the High Court of the Federal Capital Territory, being a servant in the employment of the Police Equipment Foundation and in such capacity entrusted with certain property, to wit: 6 (six) units of operational vehicles, did commit criminal breach of trust by selling one Toyota Hilux Pick-up van to Muha Motors, and thereby committed an offence punishable under Section 314 of the Penal Code’
Count Three:
‘That you, George Uboh ‘M’ sometimes in 2007 at Abuja in the Abuja Judicial Division of the High Court of the Federal Capital Territory, being a servant in the employment of the Police Equipment Foundation, and in such capacity entrusted with certain property, to wit: 6(six) units of operational vehicles, did commit criminal breach of trust by selling two units of Toyota Hilux Pick-up vans and thereby committed an offence punishable under Section 314 of the Penal Code.’
The said S.314 of the Penal Code provides thusly-
314- Whoever, being a clerk or servant or employed as a clerk or servant and being in any manner entrusted in such capacity with property or with any dominion over property, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for a term which may extend to ten years and shall also be liable to fine.
The trial Court correctly restated the ingredients of the offence of criminal breach of trust in S.314 Penal Code thusly-
(a) That the accused was the clerk or servant of Police Equipment Foundation.
(b) That the accused was in such capacity as servant entrusted with the four units of Toyota Hilux Pick-up vans or that the accused has dominion over the four vehicles.
(c) That the accused disposed the four units of the Toyota Hilux Pick-up vans.
(d) That the disposal of the four vehicles was in violation of:
(i) Any direction of law prescribing, the mode in which such trust was to be discharged or;
(ii) Any legal contract expressed or implied which he had made concerning the trust;
(iii) That the disposal of the four units of Toyota Hilux Pick-up vans by the accused was dishonest.
The trial Court evaluated the evidence of both sides on each of these ingredients, made several findings of facts and held that the prosecution proved all the ingredients of the offence except one, which is that the accused was the Clerk or Servant of Police Equipment Foundation. The exact wordings of the holding reads thusly- ?All the ingredients of the offence under Section 314 has been established by the Prosecutor except that the Prosecutor did not establish that the accused person, George Uboh was a Clerk, Servant or an employee of the Police Equipment Foundation the owner of the four vehicles when the offence was committed.
It then proceeded to hold thusly- ‘The accused person cannot therefore be convicted under Section 314 of the Penal Code, does it mean that the accused person is entitled to discharge and acquittal’. The answer is NO. The Prosecutor had established the ingredients of the offence of criminal breach of trust punishable under Section 312 of the Penal Code. The laying of the three counts charge under S.314 of the Penal Code by the Prosecutor was a mistake as the accused was not a servant, clerk or an employee of the Police Equipment Foundation.
See: T.U. AKWULE & TEN OTHERS V. THE QUEEN (1963) NNLR PG 105 AT 110 where the Supreme Court held as follows:
‘The offence of criminal breach of trust is created and defined in Section 311 and any person guilty of it may be punished under Section 312. The true nature of Sections 313, 314 and 315 is that certain categories of persons (including bankers in Section 315) should be liable to heavier punishment’.
If the Prosecutor had been able to establish that the accused was a clerk, servant or an employee of Police Equipment Foundation, the offence of criminal breach of trust will be punishable under Section 314, the punishment is heavier, 10 years imprisonment with fine and there is no alternative of fine.
Under Section 312 the Prosecutor need not establish that the accused is a clerk, servant or an employee of Police Equipment Foundation. The ingredients the Prosecutor had established in this case is enough to convict the accused under Section 312 which is an offence against criminal breach of trust simpliciter.
This Court has the power to substitute Section 314 under which the accused person was charged with Section 312 which is the proper Section under which the accused ought to have been charged, the power of this Court to substitute the charge is derived under Section 223 of Administration of Criminal Justice Act (ACJA) or 218(1) of the Criminal Procedure Code Act, the section reads as follows:
When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete lesser offence and such combination is proved but the remaining particulars are not proved, he may be convicted of the lesser offence though he was not charged with it.
Where an accused is charged for an offence, he may be convicted of lesser offence and is deemed to have had notice of it, it is therefore no violation of the fundamental human rights not to inform the accused of a lesser offence for which he is convicted if he is informed of a graver offence. See: NWACHUKWU V. THE STATE (1986) 2 NWLR (PT 27). See also: MAJA V. THE STATE 1980 1 NCR 212.
The case of: T.U. AKWULE Vs. QUEEN 1963 NNLR PG 105 is also relevant in this matter particularly pg 113 where the Supreme Court held as follows:
‘Arguments have been put to us about the powers of the Court to substitute another section for the one charged in such a case. We have given consideration to this and we are satisfied that under Section 218 of the Criminal Procedure Code when read with Section 27(2) of the Federal Supreme Court Act, 1960. We are not without power to substitute in this case Section 312 of the Penal Code for Section 315 charge an authority for this is the case of R. V. COORAY (1953) A.C. 407’.
This accused guilt for the charge of criminal breach of trust punishable under Section 312 of the Penal Code had been established beyond reasonable doubt because all the ingredients had been established.
See: ALAKE V. STATE (1991) 7 NWLR (PT 205) where the Court held as follows:
‘Once the ingredients of a particular offence the person is charged with are proved that constitute proof beyond reasonable doubt’.
In count one of the charge this Court hereby substitute Section 312 of the Penal Code for Section 314 as charged. The accused is hereby convicted for count one.
In count two of the charge, this Court hereby substitute Section 312 of the Penal Code for Section 314 as charge. The accused person is hereby convicted for count number two.
In the count 3 of the charge, this Court hereby substitute Section 312 of the Penal Code for Section 314 as charged. The accused is hereby convicted for count 3.
Learned Counsel for the appellant argued that the trial Court should have discharged and acquitted the appellant after it found that the prosecution’s evidence did not prove that he was a clerk, servant or employee of the Police Equipment Foundation when he sold the vehicles belonging to the Foundation, that if any of the ingredients of an offence an accused is charged with is not proved, then the prosecution has failed to prove his commission of that offence beyond reasonable doubt, that substituting S.314 of the Penal Code with S.312 therein did not relieve the prosecution the burden to prove that the accused was a clerk or servant or employee of the Police Equipment Foundation because that fact was still alleged as part of the particulars of facts of the offence in each count, even after the said substitution, that though such facts are not the relevant particulars of facts of an offence under S.312, since the counts were not amended to exclude them after the said substitution and remained part of the particulars of those offences, then those facts must be proved to be able to prove the substituted offence beyond reasonable doubt, that S.220 of the Administration of Criminal Justice Act (ACJA) 2015 (same as S.206 CPC) and S.223 Administration of Criminal Justice Act (ACJA) cannot defeat S.36(1), (6)(a) and (b) of the 1999 Constitution, that the decision of the Federal Supreme Court in Akwule & Ors v The Queen relied on by the trial Court in its judgment, being equivalent to the decision of the Court of Appeal cannot override the Supreme Court decisions inRoda v FRN and Abidoye v FRN, that it was wrong for the trial Court to have held that the prosecution made a mistake in charging the accused under S.314 Penal Code, when the prosecution did not make a case that the charge under that section was a mistake, that mistake in the particulars of a charge will vitiate the proceedings and it is not for the Court to suo motu correct it.
Learned Counsel further argued that the substitution of S.312 for 314 and the conviction of the appellant for the offences under S.312 is wrong in law and unconstitutional because the ingredients of the offence under S.314 are different from the ingredients of the offence in S.312, that such a substitution and conviction can only be valid if the elements of the two offences are the same, that S.218(1) of the Criminal Procedure Code under which the trial Court acted has been repealed and replaced by S.493 Administration of Criminal Justice Act (ACJA), that the trial Court lacked the power to invoke a repealed enactment as a basis for the substitution, that S.223 of the Administration of Criminal Justice Act (ACJA) is different from the repealed S.218(1) of the Criminal Procedure Code.
Learned Counsel for the respondent argued that the trial Court was right in its decision by virtue of S.223 of Administration of Criminal Justice Act (ACJA) 2015 and the settled principle of law judicially established in cases such as Akwule & Ors v The Queen (supra), Uguru v. FRN (2002) 9 NWLR (Pt. 771) 90 at 108 – 109 , Nwachukwu v The State (1986) 2 NWLR (Pt 25) 76 and Udoh v. The State (1993) 5 NWLR (Pt 295) 556 to 569, that it is only when the offence substituted is not in the kindred of the offence charged that such substitution would not be made and it will be held that the offence has not been proved, that the trial Court was right in holding that it was a mistake to have charged the appellant under S.314 of the Penal Code, that the Supreme Court in Akwule v. Queen (supra) also described a similar charge as a mistake, that the trial Court did not make a case for the respondent as there was evidence that the appellant was entrusted with the vehicles he sold, that all the ingredients of criminal breach of trust were proved as found by trial Court, that the offences of criminal breach of trust under Ss.312 and 314 of the Penal Code belong to the same class of criminal breach of trust offences and have basically the same ingredients, that S.223 of the Administration of Criminal Justice Act (ACJA) is not unconstitutional, that the trial Court did not rely only on S.218(1) of the CPC in making the substitution and conviction, that the trial Court relied on S.223 of the Administration of Criminal Justice Act (ACJA) and put S.218(1) of the CPC in bracket, that the appellant had reasonable and sufficient notice of the fact that he was being tried for the misapplication or conversion of the vehicles entrusted with him and over which he had dominion, that the appellant did not show or suggest that he did not understand the facts of the allegation against him, that the discrepancies in the evidence of the prosecution did not amount to contradictions and so were of no moment, that the lack of exactness in stating the date the offences were committed is not a contradiction or a material contradiction, that as held in Nwachukwu v State (supra) S.223 of Administration of Criminal Justice Act (ACJA) does not state that the accused be heard or fresh plea taken from him before the trial Court can exercise its power of substitution under S.223 Administration of Criminal Justice Act (ACJA) and the appellant?s right to fair hearing was not infringed by what the trial Court did.
Learned Counsel for the respondent further argued that the issue of the juristic personality of the Police Equipment Foundation and its capacity to own and entrust property is not relevant in criminal cases, that such issue is relevant only in civil matters with respect to capacity to contract and sue or be sued, that the appellant argued it in his brief in this appeal for the first time without the leave of Court, when it was not raised and determined in the trial Court, that assuming the issue is relevant here, the appellant did not deny at any time that the Police Equipment Foundation owned the said vehicles, that the appellant admitted in exhibit 8 that the vehicles belonged to the Police Equipment Foundation, that the legal personality of Police Equipment Foundation and its capacity to own and its ownership of the vehicles was proven by evidence such as the testimony of PW7 at page 164 of the record of this appeal and the appellant’s admission that Police Equipment Foundation owns the vehicles.
Let me now determine the merits of the above arguments of both sides.
It is obvious from the part of the judgment of the trial Court reproduced above, that it expressly relied on S.223 of the Administration of Criminal Justice Act (ACJA) to substitute S.314 of the Penal Code under which the appellant was charged with S.312 of the Penal Code and convicting him for the lesser offences in S.312 of the Penal Code for the reason that even though prosecution’s evidence did not prove one ingredient of the offence under S.314 of the Penal Code, the remaining ingredients of that offence which were proven by the said evidence constitute the lesser offence in S.312 of the Penal Code (PC).
The trial Court stated thusly- ‘the power of this Court to substitute the charge is derived under S.223 Administration of Criminal Justice Act (ACJA)’ or S.218(1) of Criminal Procedure Act. So the argument of Learned Counsel for the appellant that the trial Court relied on S.218(1) of the Criminal Procedure Code (a repealed legislation) in convicting for the lesser offence is not correct. The trial Court mentioned S.218(1) of the Criminal Procedure Code (CPC) as an alternative source of that power of the trial Court. This is obvious from its word ‘or’ in stating the source of its said power as being S.223 Administration of Criminal Justice Act (ACJA) or S.218(1) of the CPC.
The fact that it reproduced the wordings of S.218 (1) of the CPC is of no moment. The relevant consideration is whether S.223 Administration of Criminal Justice Act (ACJA), (the now extant law) empowers the trial Court to convict the accused for the lesser criminal breach of trust offence in S.312 PC with which he was not expressly charged, when the aggravated criminal breach of trust under S.314 PC, with which he was charged could not be proved.
S.223 Administration of Criminal Justice Act (ACJA) 2015 states thusly- ‘Where a defendant is charged with one offence and it appears in evidence that he committed a similar offence with which he might have been charged under the provisions of this Act, he may be convicted of the offence, which he is shown to have committed although he was not charged with it.’
It is obvious from the express words of S.223 Administration of Criminal Justice Act (ACJA) that it empowers the trial Court to do what it did, provided the offence with which the accused is charged with and the lesser one for which he was convicted are similar. So that assuming the trial Court did not expressly mention the repealed S.218(1) of the CPC as the law that authorized it to do so, the conviction of the appellant for the lesser offence in S.312 of the PC when the offence in S.314 of the PC with which he was charged could not be proved, would still be valid because that power is created by an existing or extant law. As held by the Supreme Court in Witt & Busch Ltd V Dale Power Systems PLC (2007)5-6 SC 121, ‘where a Court has jurisdiction to make an order, the fact that the power of the Court is invoked under a wrong law or rule of Court is no reason for not making the order or where it is made, it is no reason for setting it aside’. See also Obomhense V Erhahon (1993) 7 SCNJ 479 and Forestry Research Institute of Nigeria V Gold (2007) 5 SC 210.
So the argument of Learned Counsel for the appellant that S. 223 of the Administration of Criminal Justice Act (ACJA) and S218(1) CPC are fundamentally different from each other serves no useful purpose. In any case that argument is not valid as the two provisions are in substance the same. This is obvious from their express words. I have already reproduced S.223 Administration of Criminal Justice Act (ACJA) herein. For purpose of comparison I reproduce S.218(1) CPC here thusly- (1) where the charge as revised under Section 216 or 217 of this Act is such that proceeding immediately with the trial is not likely in the opinion of the Court, to prejudice the defendant in his defence or the prosecutor, as the case may be, in the conduct of the case, the Court may in its discretion forthwith proceed with the trial as if the charge so revised had been the original charge.
What should be considered here is whether the circumstance of this case justified the trial Court’s exercise of the power given to it by S.223 of the Administration of Criminal Justice Act (ACJA). Both sides agree that the circumstances that justify the exercise of that power are that the lesser offence must be similar to the offence with which the accused is charged and that the same evidence establishes the commission of the lesser offence. But they disagree on whether the offences with which the appellant is charged and the offences for which he was convicted are similar. Learned Counsel for the appellant argued that the ingredients of the offence in S.312 Penal Code are different from the ingredients of the offence in S.314 Penal Code. Learned Counsel for the respondent argued that the offences in the two provisions are all offences of criminal breaches of trust, that the one in S.314 Penal Code is an aggravated genre of criminal breach of trust, that the two offences are similar as both fit into the definition of breach of trust in S.311 Penal Code, that it is immaterial the capacity in which a person is entrusted with property or dominion over property, that what is material is that, he is entrusted with property or the dominion of it. Let me now consider the merits of these arguments.
It is beyond argument that the offences are basically the same, each being an offence of criminal breach of trust as created by S.311 of the Penal Code, thusly- ‘Whoever, being in any manner entrusted with property or with any dominion over property, dishonestly misappropriates or converts to his own use that property or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged or of any legal contract express or implied, which he has made touching the discharge of such trust, or willfully suffers any other person so to do, commits criminal breach of trust.’
S.312 Penal Code prescribes the general punishment for the offence of criminal breach of trust. Ss. 313 to 315 Penal Code prescribe aggravated punishments of varying degrees depending on the capacity in which the accused is entrusted with the property he has dishonestly or illegally used or disposed of. If the capacity is that of a carrier, wharfinger or warehouse keeper, S.313 Penal Code prescribes that he shall be punished with imprisonment for a term of up to 10 years and fine. If the capacity is that of a Clerk or Servant, S.314 PC prescribes that he shall be punished with imprisonment for a term of up to 10 years and fine. If the capacity is that of a Public Servant, Banker, Factor, Broker, Legal Practitioner or Agent, S.315 prescribes that he shall be punished with imprisonment for a term of up to 14 years and fine.
The offence of criminal breach of trust punished in Ss.312 to 315 Penal Code have the same ingredients of the offence of criminal breach of trust created by S.311 Penal Code, except as to the capacity in which the accused is alleged to have been entrusted with the property dishonestly or illegally used or disposed of. Unless the essential ingredients of the offence as created by S.311 Penal Code are established, there can be no conviction for the offences in Ss 313 to 315 Penal Code. So to levy any of the punishments prescribed in Ss. 312 to 315 Penal Code, the evidence must establish first the offence created by S.311 Penal Code and then secondly the relevant capacity in which the property was entrusted to the accused. If the evidence establishes only the offence as created in S.311 Penal Code and does not establish any of the special capacity of entrustment in Ss.313 to 315 Penal Code, as happened in this case, then the trial Court must levy the general punishment in S.312 Penal Code.
So, in our present case the trial court was correct when it punished the appellant under S.312 Penal Code, since the prosecution’s evidence established criminal breach of trust as created by S.311 Penal Code, but did not establish the alleged capacity of Clerk, or servant of Police Equipment Foundation in which he was allegedly entrusted with the vehicles which he dishonestly or illegally sold. The trial Court rightly relied on the decision of the Federal Supreme Court in Akwule & Ors v The Queen (supra) which restated the relationship between Ss. 311, 312, 313, 314 and 315 of the Penal Code thusly ?The offence of criminal breach of trust is created and defined in Section 311 and any person guilty of it may be punished under Section 312. The true nature of Sections 313, 314 and 315 is that certain categories of persons (including bankers in Section 315) should be liable to heavier punishment.
The offences in Ss. 313 to 315 Penal Code are basically offences of criminal breach of trust. The Court in a charge alleging the commission of any of them must allege that the accused committed criminal breach of trust. So the trial of an accused on a count of committing of any of these offences involves his trial for committing criminal breach of trust as created in S.311 Penal Code. So where the capacity in which he was entrusted with the property he dishonestly disposed of or stole is not proved, but the evidence proves criminal breach of trust, then the trial Court must go ahead and convict for criminal breach of trust without more. In this situation there is clearly no need for the trial Court to substitute the section stated in the charge with S.312 Penal Code before convicting him for criminal breach of trust. The substitution of S.314 Penal Code in counts 1, 2 and 3 of the charge with S.312 Penal Code before convicting appellant was an unnecessary surplusage.
Such a substitution before conviction has no legal significance and is meaningless in view of the nature of the offences he was charged with and tried for. He was charged with and tried for criminal breach of trust. In any case S.223 of the Administration of Criminal Justice Act (ACJA) under which it exercised that power does not provide for such substitution. It provides that in a situation where a defendant is charged with one offence and it appears in evidence that he committed a similar offence with which he might have been charged under the provisions of this Act, he may be convicted of the offence, which he is shown to have committed although he was not charged with it.
As I have held, the substitution of S.314 Penal Code with S.312 Penal Code in each count by the trial Court is of no moment. The trial Court acted in exercise of the power vested on it by S.223 Administration of Criminal Justice Act (ACJA). It was not engaged in the exercise of its power under Part 22 of the Administration of Criminal Justice Act (ACJA) to amend a charge in the course of a trial. So S.219 Administration of Criminal Justice Act (ACJA) which provides that- ‘where a charge is altered, amended or substituted after the commencement of the trial, the prosecutor and the defendant shall be allowed to recall or re-summon and examine any witness who may have been examined and to call any further witness, provided that such examination shall be limited to the alteration, amendment or substitution made’ is not applicable here. Section 223 of the ACJA does not state that the accused person should be heard before the trial Court can exercise its power of substitution under the section or that fresh plea taken from him. See NWACHUKWU V STATE (supra) at page 777 to 778 para. A-B. in which the Supreme Court stated as follows- ‘Thus where the accused has notice of an aggravated offence, he also has notice of the lesser offence for which he could be convicted. The assumption which is legitimate, is that the accused would have challenged the more serious offence and must be fully aware of the case against him in respect of the lesser offence. It is therefore important to observe from the judicial decisions and the provisions that for Section 179 of the Criminal Procedure Act to apply, the following conditions must be observed.’
First, the indictment in respect of which the accused is subsequently convicted for a lesser offence must contain words to include both offences. Secondly, the evidence led and facts found, though is sufficient for conviction of the aggravated offence charged, must support the conviction for the lesser offence. Thirdly, it is in all cases not necessary to charge the accused with the lesser offence with which he is being convicted. This last mentioned is ordinary common sense. The greater includes by necessary implication the lesser. See also AGUMADU V. THE QUEEN (1963) NSCC 153 at 156 lines 1-30.
What is relevant is that it convicted the appellant for criminal breach of trust and punished him under S.312 Penal Code. This is in keeping with the settled law in a long line of judicial decisions such as Akwule & Ors v The Queen (supra), Uguru v FRN (2002) 9 NWLR (Pt 771) 90 at 108 – 109, Nwachukwu v State (1986) 2 NWLR (Pt 25) 765 (SC) and Udoh v State (1993) 5 NWLR (Pt. 295) 556 at 569, Adoba v State (2018) 12 NWLR (Pt 1633) 236 at 254 and Adeyemi v The State (1991) 7 (SC) 131, N.A.F v Kamaldeen (2007) 3 SC (Pt 11) 131.
The argument of Learned Counsel for the appellant that the trial Court should have amended the particulars of the 3 counts to remove the words ‘being a servant in the employment of the police Equipment Foundation and in such capacity entrusted with certain property, to wit 6 (six) units of operating vehicles’, after substituting S.314 Penal Code with S.312 Penal Code in each count before convicting the appellant under S.312 Penal Code is not valid, in view of the provision of S.223 Administration of Criminal Justice Act (ACJA) under which the trial Court exercised its said power. S.223 Administration of Criminal Justice Act (ACJA) does not require an amendment of the charge upon which the accused was tried, before convicting for the offence other than the one he was charged with. The argument of Learned Counsel for the appellant that those particulars, though irrelevant to the punishment under S.312, if not removed, will form part of the particulars of offence to be proved irrespective of the statutory provisions creating the offence and would not be regarded as mere surplusage is equally not correct in view of S.223 Administration of Criminal Justice Act (ACJA).
The trial is not on going. It had ended. The evidence established the ingredient that he committed criminal breach of trust but did not establish that he was a servant of Police Equipment Foundation when he did so. The judicial authorities of Ofuani v Nigerian Navy (2007) 8 NWLR (Pt 1037) 470 at 483, George v FRN (2014) 5 NWLR (Pt 1399) 1 at 24, Agumadu v The Queen (1963) 1 All NLR 203 at 305, Roda v FRN (supra), Amadi v State (1993) 8 NWLR Pt (314) 644 at 664, Enahoro v The Queen, Ladan v Zaria NA (1962) All NLR 132 and Abidoye v FRN (2014) 5 NWLR (Pt 1399)30 at 56 to 59, did not decide that in exercising the power under S.223 Administration of Criminal Justice Act (ACJA) or similar provisions the trial Court must first amend the particulars of offence to remove particulars of offence that are not ingredients of the lesser offence.
Those authorities dealt with the contents of the particulars of offence in a charge and the application of provisions similar to S.220 of the Administration of Criminal Justice Act (ACJA) such as S.206 of the CPA on effect of errors in the particulars of offence in a count of a charge. The argument of Learned Counsel for the appellant that the trial Court should not have said that the prosecutor made a mistake by charging the appellant under S.314 Penal Code instead of S.312 Penal Code when there is no evidence of such mistake is not valid. The trial Court was merely saying that since the evidence did not prove some ingredients of the offence in S.314, but proved criminal breach of trust, he should have been charged for the offence proved simpliciter and that it was a mistake to have charged him under S.314 Penal Code.
The trial Court used the very language the Federal Supreme Court in Akwule v Queen (supra) used in describing the same situation and exercised the power in a provision similar to S.223 Administration of Criminal Justice Act (ACJA). The argument of Learned Counsel for the appellant that S.223 by providing that the similar offence established by the evidence and for which he can be convicted thereunder is one ‘with which he might be charged under the provisions of this Act’ makes itself a Penal Code and is therefore unconstitutional and unlawful and should be struck down is not valid. As correctly submitted by Learned Counsel for the respondent the words ‘charged under this Act’ obviously means charged in accordance with the procedure prescribed in the Administration of Criminal Justice Act (ACJA). Both sides agree that Administration of Criminal Justice Act (ACJA) is a procedural law. It prescribes the practice and procedure to be followed by Courts in criminal cases. An accused person in a criminal case is charged with the commission of a crime in accordance with the procedure laid down in part 21 of the Administration of Criminal Justice Act (ACJA). This is obviously what S.223 Administration of Criminal Justice Act (ACJA) meant by the words ‘charged under the provisions of the Act’.
The Administration of Criminal Justice Act (ACJA) prescribes the procedure for charging and trying an accused for offences created by Penal Statutes. It is not an offence creating statute, so it would be wrong and unreasonable to read the words ‘charged under the provisions of the Act’ in S.223 Administration of Criminal Justice Act (ACJA) as being charged for offences under the Administration of Criminal Justice Act (ACJA). The words must be read ut res magis valeat quam pereat so that it can have meaning within the con of the Administration of Criminal Justice Act (ACJA) to give effect to the purpose of S.223 and not render it futile.
The arguments of Learned Counsel for the appellant that the date of sale of the vehicles as 2007 in the charge sheet and the date of their sale as 2008 in the evidence of the prosecution conflict and therefore the counts were not proved, is invalid and incompetent, because there is no ground of this appeal complaining against or challenging the part of the judgment of the trial Court as follows- The finding of this Court is that Four Toyota Hilux Pick-up vans belonging to Police Equipment Foundation were sold by accused person as stated in the charge. One was sold to PW2 and another to PW3 but two were sold to one Patrick. The said Patrick was never called by the Prosecution to give evidence and his name was not mentioned in count 3.
There is another Toyota Corolla car which was part of the vehicle given to the accused, same was not captured in the charge but one of the Investigating Police Officer said the accused gave the said car to his brother.
The four Hilux Pick-up vans sold by the accused person were handed over to him on behalf of Police Equipment Foundation as official and operational vehicles; ownership continues to reside with Police Equipment Foundation. The selling of the vehicles ran contrary to the directive in Exhibits ‘D’ and ‘E’ therefore the accused person committed the offence of criminal breach of trust contrary to Section 311 of the Penal Code.
By not appealing against the finding that the appellant sold the four vehicles belonging to the Police Equipment Foundation to PW2, PW3 and one Patrick, the appellant accepted it as correct, conclusive and binding and therefore cannot argue that the fact of such sale was not proved. See Iyoho V Effiong (2007) 4 SC (Pt.iii) 90 and Dabup V Kolo(1993) 12 SCNJ 1. Secondly, the conflict between the year of sale of the vehicles as 2007 in the charge and the year of sale as 2008 in the evidence is not one of the grounds for this appeal. So the argument that because the dates conflict the prosecution’s case was not proved beyond reasonable doubt is incompetent. All arguments in an appeal must derive from issues based on the grounds of the appeal. See Kalu V Odili (1992)6 SCNJ 76 and Kala V Potiskum (1998) 1-2 SC 132.
In any case, the year of sale of the vehicles by the appellant was not a material issue in the trial. The material issue is that the appellant sold the vehicles. He even admitted selling two of the said vehicles. So the conflict in dates amount to a discrepancy as it has no bearing on the fact of the sale of the vehicles already admitted by the appellant himself and proven by other evidence. The date of sale of the vehicles was not material. The decision of Agholor v A-G Bendel State (1990) 6 NWLR (Pt 155) 141 at 150 relied on by Learned Counsel for the argument on the point is not applicable here as in that case the date of the commission of the offence was material as the issue was whether it was possible for the accused to commit the offence, not being physically possible for him to be present at the scene of the crime at the time and date the offence was purportedly committed. Furthermore, for contradictions in the evidence of the prosecution to be material and capable of rendering the evidence unreliable, such contradictions or inconsistencies must relate to the material ingredients of the offence charged. The contradictions must be substantial and fundamental to the main issue, to be fatal to the prosecution?s case. Inaccuracies and discrepancies that do not touch the justice or substance of a case should not be sufficient ground to disturb a judgment. See SILAS SULE V. THE STATE (2007) LPELR ? 8901 1 at Pp. 5 – 6.
If a contradiction is immaterial, it will not be of any assistance to the party raising it. See ONUBOGU V. STATE 1974 9 SC 1. There were no material contradictions or inconsistencies in the prosecution’s evidence.
All the three counts of the charge state that the offences were committed some time in 2007. The PW1 in his examination-in-chief stated that the Appellant signed for the vehicles ‘sometimes in October 2007’ and that ‘sometimes later’, the appellant started selling them. Under cross-examination he stated as follows: ‘I discovered that the vehicles were sold by the accused in 2008. I cannot remember the particular date?. The PW2 who bought one of the vehicles said that he bought them in February, 2008.
Not stating with exactness the dates of the commission of the offence is not a contradiction or inconsistency. Even if the dates were not exact as to time, the omission to be exact as to time does not vitiate a charge or render it bad except where time is of essence. It is immaterial if the time of an offence is incorrectly stated in a charge unless time is of the essence in the offence. See WAZIRI V STATE (1997) 3 NWLR PT. 496 689 and 718, and JEGEDE & ORS V. BAMIDELE & ORS (2005) LPELR-11390 1 at 21-22, paras. D-G. In the case of Fatoba vs Ogundahunsi (2003) FWLR PT. 154 P.566 at P.580, this court held at P.580 of the record that: ?In normal cause of events, it is to be expected that witnesses may not always speak the same facts with equal accuracy particularly when they speak of events of the past. It is that passage of time will face human memory on matters of detail and human observations of events and this tends to differ in some situations. This explains why due allowance is made for circumstances where inconsistencies in evidence of witness may occur form variety of causes when it comes to matters of detail. Consistent with the decision in the cases cited above, I am of the considered view that the date of trespass is not fatal to the Plaintiffs’ case at the lower Court. What is of considerable importance is that the acts of trespass did take place.
Learned Counsel for the appellant also argued that the appellant made out the defence of bonafide claim of right of the vehicles by his oral assertion and that of his witnesses that the vehicles belonged to him as they were given to him by Police Equipment Foundation to settle its debt to the appellant and that his bonafide claim of right of ownership of the vehicles successfully showed that he did not dishonestly or fraudulently sell the vehicles, as he sold them honestly believing they were his own. This argument is not correct. The argument did not show that the claim of right was bonafide. The argument disregards the finding of the trial Court that the testimonies of the appellant and DW2 on the purpose for which Police Equipment Foundation entrusted the vehicles to him, why he sold the vehicles and who authorised him to do so were contradictory and regarded them as untrue and unworthy of belief. The part of the judgment of the trial Court that contains this decision reads thusly- The second issue for determination is whether the accused was entrusted with the four units of Toyota Hilux Pick-up vans. Entrusted means that when the Prado Jeep was assigned to him same is to be used as official vehicle, see Exhibit ‘D’.
It also means that when the five units of Toyota Hilux Pick-up vans including one Toyota Corolla care were assigned to the accused, they were to be used as operational vehicles in the security and communication Division of the Police Equipment Foundation. The last paragraphs of Exhibits ‘D’ and ‘E’ that accompanied the allocation of the vehicles to the accused read as follows:
‘Please note that as a matter of policy, you must ensure that the said vehicle is properly taken care of at times and used only for the purpose of the work of the foundation’
From the evidence of PW5 and other witnesses including Exhibit ‘D’ and ‘E’ the seven vehicles were entrusted to the accused person which means that ownership of the seven vehicles reside with the Police Equipment Foundation not with the accused but the accused gave conflicting evidence as to whether the vehicles were given to him for operational use or to offset the debt he incurred as a result of official course he undertook in Namibia of which he paid the expenses from his pocket, the inconsistencies in his statement and oral evidence are as follows:
(a) In the statement he made to the EFCC on the 14th day of August 2008 admitted as Exhibit ‘B’ when the matter was fresh in his memory. The accused stated in the said statement as follows:
‘I had started complaining about not being paid any salary before this time. Kenny Martins now gave me as compensation five Hilux Pick-up and one Prado Jeep. The compensation was not communicated in writing just as nothing was not communicated in writing at this point’.
On the 17th day of November 2014, when the accused gave oral evidence, he stated as follows:
‘After I signed the IOU I told PW5 about the money I spent in Namibia and the IOU, PW5 said there is no cash but PW5 gave me 4 Hilux Pick-up vans, one Toyota Corolla and one Prado Jeep with the titles of ownership to the vehicles. PW5 told me to sell the vehicles so as to get my money back’.
On the 4th day of June 2015 when the accused continued his oral evidence for his defence, he further stated as follows:
‘The Police took possession of vehicles belonging to Police Equipment Foundation and kept them near the National Stadium. I decided to sell the vehicles given to me to offset the debt owed by Police Equipment Foundation. I convened a meeting in my office attended by everybody who are members of my staff. I told them of my intention to sell the vehicles to offset the debt owed to me by Police Equipment Foundation’.
DW2 who was called by the accused person for his defence stated in his evidence given on the 29th day of October, 2015 as follows:
‘The Committee resolved to trade those vehicles (six) as trade by barter in respect of the money he spent in Namibia’.
The Court had highlighted the inconsistencies of the accused statement he gave to the EFCC and his oral evidence before the Court as regards why he sold the four vehicles and as to who asked him to sell the vehicles.
According to the statement he made to the Police Exhibit ?B? he was given the vehicles by PW7 to be sold because of arrears of salaries; in his oral evidence before the Court he sold the vehicles to recover the cost of the course he attended in Namibia on behalf of (Police Equipment Foundation) as they did not pay for the cost of the course.
The total value of the debt owed to the accused amount to $50,000.00 and the total number of vehicles given to him are seven, which include Prado Jeep, 5 units of Toyota Hilux vans and one Toyota Corolla car. It is not reasonable to say the seven vehicles will be used as trade by barter for $50,000.00. He equally claimed in his oral evidence that PW5 gave him the vehicles, accused inconsistent statement cannot be tantamount to evidence of guilt but same may portray the accused as not credible.
See: AJOSE V. FEDERAL REPUBLIC OF NIGERIA (2011) 6 NWLR PT 1244 PG 465 AT 470 where the Court held as follows:
‘An accused person’s prevarication, lies or inconsistent statement in Court shall not ordinarily be taken as evidence of guilt, but may in appropriate cases operate to deny such an accused the benefit of credibility’.
The Court hereby rejects the evidence given by the accused and DW1. The Court accepted that the accused sold the four vehicles dishonestly.
See: AIYEJENA V. THE STATE (1969) N.N.L.R 73 AT 74 where the Court held as follows:
The offence of criminal breach of trust is defined in Section 311 of the Penal Code. An essential ingredient is that the person charged ‘dishonestly misappropriates or converts to his own use? the property’.
Criminal breach of trust, contrary to Section 311 of the Penal Code is not sustainable unless the Prosecutor established that the accused dishonestly converted, used or disposed the property.
See: M. BATSARI V. KANO N.A 1966 NNLR 145 AT 153 where the Court held as follows:
‘It is essential that before there can be a conviction on a charge of breach of trust there must be evidence of entrustment and of dishonest misappropriation of what was entrusted’.
The Court had described the reasons given by the accused for selling the vehicles as untrue because of the inconsistencies in his evidence, an inference of misappropriation with dishonest intent may be deduced from his untrue statement.
See: J.M. DESSI V. STATE OF BOMBAY A.I.R. (1960) 889 quoted with approval in I.G. TIRAH V. C.O.P 1973 NNLR PG 143 AT 151, the Supreme Court of India held as follows:
‘Conviction of a person for the offence of criminal breach of trust may not in all cases, be founded merely on his failure to account for the property entrusted to him, or over which he has dominion, even when a duty to account is imposed upon him, but where he is unable to account or renders an explanation for his failure to account which is untrue an inference of misappropriation with dishonest intent may readily be made’.
The conflicting explanation given by the accused person may also justify the inference of dishonest intention.
See: M. BTSARI V. KANO N.A. 1966 NNLR PG 151 AT 154 where the Court held as follows:
‘If on the other hand the accused gives conflicting explanation, or one that is obviously untrue, that may in certain cases justify the inference of a dishonest intention’.
The accused person accepted that he sold two of the Hilux Pick-up vans, one was sold to PW2 Alhaji Mohammed Muhamud for N3,000,000.00 while the other Toyota Hilux Pick-up vans was sold to PW3 Blessing Egbon for N3.3 million, accused further claimed that two of the Toyota Hilux were taken from him along with Prado Jeep by the EFCC. PW4 whose name is Allu Dauda an investigator attached to the EFCC confirmed to this Court that only one Hilux Pick-up vans and one Prado Jeep were recovered from the accused person.
In Exhibit ‘C’ one of the statement made to the EFCC by the Accused person, the accused admitted that he sold two Toyota Hilux to one Patrick, he promised to return those vehicles to EFCC, part of Exhibit ‘C’ read as follows:
‘Two of the Hilux Pick-up vans were sold directly to Patrick a fact that was reminded by Blessing. I called Patrick who said the vehicles were given to Kaduna State Government for a project executed there.’
The said argument of Learned Counsel for the appellant ignored this decision and made no reference to it. It was not argued that this decision of the trial Court is wrong.
Secondly, there is no issue that was raised in the appellant?s brief for the determination of the correctness of the above reproduced decision of the trial Court rejecting the testimonies of the appellant and DW2 on why he sold the vehicles. No issue for determination was raised from ground 6 of this appeal that complained against this decision. By not raising any issue for determination from it, the appellant abandoned that ground of appeal. It is settled law that a ground of appeal not covered by any of the issues for determination in the appeal or from which no issue for determination was raised, is abandoned.
So the argument that the testimonies of the appellant and his witnesses that the vehicles were given to him in lieu of the debt owed him by Police Equipment Foundation raises a bonafide claim of right that shows that he did not sell the vehicles dishonestly or fraudulently cannot validly and competently be made on the basis of issue No. 1 in the appellant?s brief because there is no relationship between this argument and issue No. 1. Arguments under an issue raised for determination must relate to and be consistent with the subject matter of the issue.
The issue of the legal personality of the Police Equipment Foundation and its capacity to own and entrust its property to any person including the appellant was not raised by the appellant in the trial Court. Therefore there was no decision on it. It is being raised in this appeal for the first time. The appellant did not seek for and obtain the leave of Court to raise it. The appellant’s arguments on that issue are incompetent.
In any case the appellant testifying as DW1 admitted that Police Equipment Foundation owned the vehicles given to him. His exact testimony reads thusly- ‘The Police took possession of vehicles belonging to Police Equipment Foundation and kept them near the National Stadium. I decided to sell the vehicles given to me to offset the debt owed by Police Equipment Foundation’.
In the light of the foregoing, issue No. 1 is resolved in favour of the respondent.
Let me now determine issue No.2.
I have calmly and carefully read and considered all the arguments of both sides on this issue.
Learned Counsel for the appellant argued that exhibits D and E are in law not admissible in evidence and therefore the trial Court was wrong to have relied on them, because being photocopies of letters addressed to and sent to the appellant by the Police Equipment Foundation, there being no proof of service of the letters on the appellant and no proof of service of a notice to produce the original copies on the appellant, the trial Court’s admission of them and reliance on them is contrary to Ss 89(a)(ii), 90(i)(a) and 91 of the Evidence Act 2011, that this Court should expunge them from the evidence, and that the implication of their rejection as evidence is that there is no evidence that the four vehicles were entrusted to the appellant.
Learned Counsel for the respondent argued in reply that the appellant did not deny receiving the notice to produce the said document, that therefore the trial Court rightly inferred that the notice to produce was duly served on the appellant and he failed to produce same and then rightly proceeded to admit them in evidence, that not having joined issues with the respondent on the receipt or non receipt of the notice to produce, the appellant cannot complain in this appeal that he did not receive the notice to produce, that there is no dispute that the vehicles belonged to the Police Equipment Foundation and were delivered to the appellant, that the PW5 who signed exhibits D and E testified that the vehicles were given to the appellant for the operations of the Police Equipment Foundation, that the vehicles were delivered to his office as Head, Security and Communication Division of Police Equipment Foundation, that the appellant failed to show that the ownership of the vehicles was transferred to him and did not produce any evidence of such transfer of ownership to him, that PW7 who he claimed gave him the vehicles to pay the debt he said Police Equipment Foundation owed him, denied that the Police Equipment Foundation was owing him any money and denied transferring the ownership of the vehicles to him, that appellant held the vehicles in trust for the Police Equipment Foundation.
Let me now determine the merits of these arguments.
The argument of Learned Counsel for the respondent that the parties did not join issues on the receipt or on receipt of the notice to produce the original copies of the letters by the appellant is not correct. When exhibits D and E were sought to be tendered in evidence through PW4, the defence counsel objected to the admission of the documents which were photocopies on the ground that it is contrary to S.63 of the Evidence Act, that no proper foundation was laid for their admissibility. The trial Court overruled the objection and admitted the documents for the reason that they are relevant to the issues in the case and that the prosecution orally stated that the accused was given notice to produce the original copies of the said documents, but the accused failed to do so. Subsequently, during the testimony in examination in chief of DW1, the trial Court suo motu revisited the issue and stated that ‘Exhibits D and E were given to the accused person and he said he never received the two documents and there is no proof of service on him.’ The implication of this finding of the trial Court that ?there is no proof of service of exhibits D and E on the accused, is that exhibits D and E were admitted contrary to Ss. 89(a)(i) and 91 of the Evidence Act 2011.
S.89(a)(i) provides that – Secondary evidence may be given of the existence, condition or contents of a documents when-
(a) The original is shown or appears to be in the possession or power-
(i) Of the person against whom the documents is sought to be proved;
S.91 provides that – Secondary evidence of the contents of the documents referred to in Section 89(a) shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, or to a legal practitioner employed by such party, such notice to produce it as is prescribed by law; and if no notice to produce is prescribed by law then such notice as the Court considers reasonable in the circumstances of the case:
Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases, or in any other case in which the Court thinks fit to dispense with it-
a. When the document to be proved is itself a notice
b. When, from the nature of the case, the adverse party must know that he will be required to produce it
c. When it appears or is proved that the adverse party has obtained possession of the original by fraud or force
d. When the adverse party or his agent has the original in Court, or
e. When the adverse party or his agent has admitted the loss of the document.
It is clear from the above provisions that proof that the original copies of exhibit D and E is in the possession of the accused is a condition precedent to the admissibility of exhibits D and E being photocopies of the documents. Since the accused had at the trial objected to their admissibility and the trial Court that admitted them in evidence, later found that there is no proof that they were served on the accused, their admission by the trial Court is rightly made a ground of this appeal. Since the condition precedent to their admissibility prescribed by Ss 89(a)(i) and 91 were not fulfilled, this Court holds that they were wrongly admitted by the trial Court. They are hereby expunged from the evidence in this case. See Anyaebosi v R.T Briscoe (Nig) Ltd (1987) 6 SC 15 and Shittu v Fashawe (2005) LPELR 3058 (SC).
It is obvious from the judgment of the trial Court that it relied on the said exhibits D and E in reaching the conclusion that the accused was directed to use the vehicles for the operations of the Police Equipment Foundation. It held that ?the selling of the vehicles ran contrary to the directive in Exhibits D and E. Therefore the accused person committed the offence of criminal breach of trust contrary to Section 311 of the Penal Code.
The question that arises for determination at this juncture is whether without the wrongful admission of exhibits D and E and reliance on same by the trial Court, it would have convicted the appellant for commission of the offences of criminal breach of trust or is there any other evidence outside exhibits D and E that establish that the vehicles were entrusted to the appellant to be used for the operations of Police Equipment Foundation.
It is clear from the judgment of the trial Court that, it did not rely only on exhibits D and E to find that Police Equipment Foundation entrusted the vehicles to the appellant for Police Equipment Foundation operations. This is clear from the part of its judgment that states thusly- ‘From the evidence of PW5 and other witnesses including Exhibit ‘D’ and ‘E’ the seven vehicles were entrusted to the accused person which means that ownership of the seven vehicles reside with the Police Equipment Foundation not with the accused but the accused gave conflicting evidence as to whether the vehicles were given to him for operational use or to offset the debt he incurred as a result of official course he undertook in Namibia of which he paid the expenses from his pocket.’
The PW5 testified in examination in chief that- ‘I was employed by Police Equipment Foundation as Internal Auditor. My Schedule of Duty include to secure the asset of the company by way of implementing internal checks put in place which includes all funds disbursed and assets allocated to different categories of staff to facilitate their operation. The assets include motor vehicles of different brands. I know the accused person as staff of the (P.E.F.). He was then the managing Director and Chief Executive Officer of the Security and Communication Department of (P.E.F.).
IN August, 2007, I was instructed by the Management of P.E.F to allocate a Prado Jeep for the official use of the accused person. In October of 2007, I allocated five Hilux Vans to the accused and one Toyota Corrola Sallon to the Department of the accused person to facilitate his operation duties. I wrote two letters to the accused persons to take custody of the vehicles allocated to his Department. Exhibit D and E were shown to the witness who confirmed writing same.
Under cross examination he testified that- ‘I wrote Exhibit D and E. Exhibit D and E were sent to his office and same were not given to him directly. The accused is the Head of Security and Communication Department of (P.E.F.). The accused was never supervised by me as the Head of Auditor, he is being supervised by Doctor Gella Director of Administration. I did not supervise Doctor Gella.’
It is noteworthy that the evidence of PW5 that he was instructed by the management of Police Equipment Foundation to allocate the vehicles to the department headed by the appellant to facilitate his operational duties was not challenged by cross examination.
PW7, the National Co-ordinator of Police Equipment Foundation testified in examination in chief that, ‘We later found out that some of the equipments that were allocated for the running of the operation of the office namely: One Prado Jeep, 5 Hilux Toyota cars, 50KV Generator were sold by the accused. We asked Mr. David Sheilu PW1 to write a petition to EFCC about the sale and recovery of the sold properties belonging to the foundation.’
Under cross examination he testified that, ‘What I wrote in Exhibit J was that, we are surprise that the accused can claim that he sold the items to recover his salary, because he was paid salary. The vehicles were allocated to security communication division and registered in the name of the Company. The accused was in-charge of paying the salary and maintaining the vehicles. I cannot remember the Registration Numbers of the whole vehicles. I do not know when the vehicles were registered. The accused was employed as Managing Director and Head of Security and Communication Division of the Foundation which was under my supervision. There was Query for accused for mismanagement of the equipments of the foundation but no query for the sale of the vehicles. There was one Query that was issued to the accused to account for the management of fund and equipment of the company.’
The appellant elicited evidence to rebut the evidence of the prosecution that Police Equipment Foundation gave him the vehicles for the operational use of the department of Police Equipment Foundation headed by him. But the trial Court found the rebuttal evidence to be inconsistent and rejected it as untrue and relied on the inconsistencies to justify its inference of dishonest intention. This part of the trial Court’s judgment is already reproduced in pages 32 to 36 of this judgment.
It is noteworthy that PW7, whom the appellant claimed in exhibit B, his extra judicial statement to the EFCC on 14-8-2008 gave him the vehicles as compensation for the debts Police Equipment Foundation owed him, denied giving him the vehicles for such purposes and stated that the vehicles were given to the appellant for the operations of Police Equipment Foundation. Again the PW5 whom the appellant mentioned in his testimony in open Court on 17-11-2014, as the person who gave him the vehicles to sell and recover the debts due to him from Police Equipment Foundation, had testified that he was instructed by the management of Police Equipment Foundation to assign the vehicles to the appellant?s department for the departments operations.
It is clear from the foregoing that without exhibits D and E, there was evidence that the appellants was entrusted with the vehicles for the operational use of his department and the trial Court’s inference of dishonest intention from the inconsistencies in the appellant’s rebuttal evidence is reasonable and justified by the evidence. Therefore the wrongful admission and reliance on exhibits D and E has no effect on the judgment of the trial Court. The judgment would have been the same without exhibits D and E. Therefore the judgment of the trial Court cannot be reversed on that ground. As the Supreme Court held in Shittu & Ors v Fashawe (supra) ‘The wrongful admission of evidence will not itself create a ground for the reversal of a case unless the appellate Court would have come to a different decision without such evidence. See Ajayi v. Fisher supra; Idundun v Okumagba (1976) 9-10 SC 227.’
In the light of the foregoing, issue No. 2 is resolved in favour of the respondent.
Let me now determine issue No. 3 which asks- ?Whether in law the inconsistency rule applies to the accused person (Appellant), and the Learned Trial Judge was right to rely on Exhibits tendered by prosecution and infer dishonesty on the part of the Appellant and dwelt on the perceived inconsistencies of extra-judicial Statements and oral evidence of the Appellant (Accused) to reject defence evidence and use same rejected evidence among others to convict the Appellant under Section 311 and 312 of the Penal Code and sentenced him without dwelling and taking cognizance of palpable inconsistencies and lacunae in the prosecution?s case and mens rea as an element of guilt.
Learned Counsel for the appellant argued that the whole story of the defence is that the appellant worked and was not paid and was given vehicles to sell and recover the salaries and the expenditure he incurred in his work, that there are no inconsistencies in the evidence of defence witnesses as highlighted by the trial Court, that because the trial Court perceived the oral evidence of the accused in Court to be inconsistent with his extra judicial statements, the trial Court rejected the evidence of the defence, inspite of the fact that the prosecution had not proved its case, that it was a misdirection for the trial Court to infer the accused?s dishonest intention from the inconsistency of his evidence, that the inconsistency rule does not apply to the prejudicial statements of an accused, that it applies only to that of a witness, that no duty is placed on an accused to prove his innocence under any circumstance.
Learned Counsel for the respondent argued in reply that the testimonies and assertions of the appellant were manifestly unreliable for being contradictory, that the contradiction in his testimony made him a witness without credibility, the defence of bona fide claim of right cannot avail the appellant, that the sale of the vehicles showed dishonesty in view of the surrounding circumstances, that in criminal trials the burden of proof shifts to the accused once the prosecution has made out a prima facie case against him, that the onus was on the appellant to justify the sale of the vehicles and he failed to do so, that the inconsistency rule applies to prejudicial statements of the accused that are not confessions.
Let me now consider the merits of the above arguments of both sides.
The inconsistency rule postulates that where the extra judicial statement of a person is inconsistent with his testimony in Court, such testimony is to be treated as unreliable, while the extra judicial statement is not regarded as evidence on which the Court can act. This rule applies to the extrajudicial statements of witnesses and the extra judicial statement of an accused person that is not confessional. As the Supreme Court observed in Egbogbonome v The State (1993) 9 SCNJ 1 since its adoption in Nigeria, the operation of the inconsistency rule has been limited to the statement of a witness and his inconsistent testimony. It was for the first time in 1985 extended to the statement and evidence of the accused person in Owie v State (supra). The judgment of this Court in Udo v The Queen (supra) delivered by Brett JSC made it clear that the rule did not apply to the previous confession of an accused person and his evidence in Court.” See also Emoga v State (1997) 1 NWLR (Pt 483) 615 and Gbadamosi v State (2013) LPELR 22169 (CA).
Exhibit B is the appellant’s extra judicial statement which the trial Court held was contradicted by his oral evidence in Court on whether the vehicles were given to him for the operational use of Police Equipment Foundation or to offset the debts due from Police Equipment Foundation to him, who gave him the vehicles and the basis of the debts. It is obviously not a confessional statement. It denies the allegation that he dishonestly sold the vehicles belonging to Police Equipment Foundation and meant for its operational use and thereby committed criminal breach of trust.
The appellant stated in exhibit B that the vehicles were given to him by PW7, the National Co-ordinator of Police Equipment Foundation as compensation for salaries owed him by Police Equipment Foundation. So, not being a confessional extra judicial statement, the inconsistency rule applies to exhibit B and the oral testimonies of the appellant. So the trial Court was right in considering the inconsistencies between exhibit B and the appellant?s oral testimonies in Court to decide that the reasons given by the appellant for selling the vehicles are untrue. It is settled law that where an extra judicial statement of a person is inconsistent with his testimony in Court on a material issue both the testimony in Court and the extra judicial statement are unreliable and do not constitute evidence that can be acted upon by the Court.
The trial Court did not rely on only the inconsistency between his oral testimony in Court and his extra judicial statement in rejecting his evidence as untrue, it also relied on the inconsistencies between his oral testimony in Court on 17-11-2014 and his oral testimony in Court on 4-6-2015 and the inconsistency between the testimony of DW2 and his oral testimonies as DW1 on 17-11-2014 and 4-6-2015. The part of the judgment of the trial Court highlighting these inconsistencies is reproduced in pages 32 to 37 of this judgment. So without exhibit B, material inconsistencies in the oral testimonies of the appellant as DW1 and the inconsistencies between his testimonies and that of DW2 render these testimonies unreliable.
It is not in dispute that the vehicles belonged to the Police Equipment Foundation. The prosecution led consistent evidence through PW1, PW5 and PW7 (all officials of Police Equipment Foundation) that Police Equipment Foundation assigned the vehicles to the appellant as head of the security and communications department of Police Equipment Foundation to be used by the department for the operations of Police Equipment Foundation. The prosecution led consistent evidence through PW1, PW2, PW3, PW5 and PW7 that the appellant sold the vehicles instead of using them for the operations of Police Equipment Foundation. The prosecution’s evidence glaringly proved beyond reasonable doubt the commission of the offences of criminal breach of trust as he is charged with in counts 1, 2 and 3 of the charge by the sale of those vehicles. The burden then shifted to the appellant to prove reasonable doubt in the case made out by prosecution by virtue of S.135(3) of the Evidence Act 2011 which provides that ?if the prosecution proves the commission of a crime beyond reasonable doubt, the burden of proving reasonable doubt is shifted on to the defendant.
The appellant adduced evidence through his own testimony as DW1 and the testimony of DW2. The theme of the evidence is that the Police Equipment Foundation gave the appellant the vehicles in lieu of the debts Police Equipment Foundation owed the appellant. The trial Court found that the testimonies of DW1 and DW2 conflict with the appellant’s extrajudicial statement in exhibit B and that the appellant’s testimonies on 17-11-2014 and that of 4-6-2015 conflict and the testimony of DW2 conflict with the testimonies of DW1.
The inconsistencies highlighted by the trial Court in its judgment, reproduced here, are clear from the evidence. They are not just perceived as submitted by Learned Counsel for the appellant, they actually exist. In exhibit B he said PW7 gave him the vehicles as compensation after he had started complaining about not being paid any salary. In his oral testimony in Court on 17-11-2014, he said PW5 gave him the vehicles to sell to recover the money he spent in Namibia and the IOU he signed in Namibia all on behalf of Police Equipment Foundation. In his testimony on 4-6-2015, he said he decided to sell the vehicles and convened a meeting of his office and informed them of his intention to sell the vehicles to recover the debt owed him by Police Equipment Foundation. DW2 testified that a committee resolved that the vehicles be given him for the money he spent for Police Equipment Foundation in Namibia.
There is a contradiction between his extrajudicial statement and his testimonies in Court on who gave him permission to sell the vehicles and recover the debt Police Equipment Foundation owed him. In exhibit B, he said it was PW7. In his oral testimony in Court on 17-11-2014, he said it was PW5. In his oral testimony of 4-6-2015 he said, it was his decision to sell the vehicles and he called a meeting of his office to inform them of that decision. DW2 said it was a committee that gave him the vehicles in exchange for the debt Police Equipment Foundation owed him.
Another inconsistency concerns what the debt was for. In exhibit B, he said it was for the outstanding salaries Police Equipment Foundation had not paid him. In his oral testimony of 17-11-2014, he said it was for money he spent in Namibia and the IOU he signed.
Could the trial Court have chosen which version of the conflicting evidence to believe or not to believe? No. it must treat all the versions as untrue and unreliable.
On account of these inconsistencies, the trial Court rejected the appellant’s extrajudicial statement and the testimonies of DW1 and DW2 as untrue and unreliable. The obvious and necessary implication of this finding of fact is that the appellant failed to prove reasonable doubt as required by S.135(3) of the Evidence Act 2011.
In addition to rejecting the conflict evidence as untrue and unreliable, the trial Court was right to have held relying on Btsari v Kano N.A (1966) NNLR 151 at 154 that such conflicting explanations for selling vehicles belonging to someone else, may also justify the inference that the accused sold them with dishonest intention.
In the light of the foregoing, issue No. 3 is resolved in favour of the respondent.
Let me now determine issue No. 4 which asks- ?Whether from what transpired on record of the Lower Court, Exhibit A was rightly admitted and admissible in evidence and appellant was given fair hearing before it was admitted in evidence and of what effect’
I have carefully read and considered the arguments of both sides on this issue.
I do not agree with the submission of Learned Counsel for the appellant that exhibit A was wrongly admitted in evidence and so is inadmissible evidence because the appellant and his Counsel were not asked by the trial Court if they oppose the admission of the document or not before it was admitted in evidence and therefore were not fairly heard before it was admitted in evidence. ?Exhibit A is the original receipt on the letter headed paper of the Police Equipment Foundation given to PW2 by the appellant in acknowledgment of receipt of the purchase price of one Hilux pick up from PW2. It was tendered through PW2 as the receipt the appellant issued to him in acknowledgment of his payment to the appellant of the purchase price of one Hilux Pick up. It was tendered in the presence of the appellant and his lawyer, Tander Nordi who appeared with two other lawyers. After the prosecutor stated that he seeks to tender the said receipt in evidence, Learned Counsel for the appellant was silent. The Court then admitted the receipt in evidence as exhibit A.
Learned Counsel for the appellant then cross examined PW2 on exhibit A. Since no objection was raised to the admissibility of the receipt in evidence by Learned Counsel who was present when the application for it to be admitted in evidence was made, the trial Court had no duty in law to ask Learned Counsel if he was opposed to its admission in evidence before admitting it and rightly admitted it in evidence. Learned Counsel for the appellant who did not object to its admission in evidence and who cross examined PW2 on it, cannot now in this appeal contend that the trial Court should have asked him if he has objection to the admission of the receipt in evidence and that not having done so, the receipt was wrongly admitted in evidence and the appellant’s right to fair hearing was violated thereby.
As held by this Court in Buba v State (1992) 1 NWLR (Pt. 215) 16 ‘In any proceeding where a party is represented by counsel it is assumed that counsel knows what to do at each stage of a proceeding and would accordingly do it as the need arises. In Okaroh v. The State (1990) 1 NWLR (Pt. 125) 128, the Supreme Court held that ‘A counsel in Court in a criminal trial has a very important and sacred duty to perform. He owes that duty not only to his client and the Court but also to society at large. It is of the very essence of that duty that he should promptly take objection to every irregularity relating to procedure or to evidences called at the trial. Where, as in the instant one, such counsel fails to object to an irregularity in the proceeding it means that he saw nothing wrong with the procedure adopted at the trial’. The above reasoning is equally applicable to the situation in this appeal.
In any case the fact of the sale of the Hilux pick up by appellant to PW2 was not in dispute and it is clear from the judgment of the trial Court that it did not rely on exhibit A to convict the appellant. So issue No. 4 serves no useful purpose.
It is academic.
It is resolved in favour of the respondent.
Let me now determine issue No. 5 which asks- ‘Whether the evidence of P.W.1 (Muniru David Shielu) should not be discountenanced and expunged from the record for being worthless and incompetent having not concluded his cross-examination’.
On 23-2-2010, the trial Court granted the appellant’s motion on notice for leave to recall PW1 and ordered that PW1 be served with witness summons to appear on 14-4-2010 for further cross examination and hearing. There is nothing in the record of this appeal that shows that the witness summons was issued and served on PW1 or that PW1 did appear to be further cross examined. Rather the record of appeal show that the prosecution witnesses 2, 3, 4, 5, 6 and 7 testified in that order, without PW1 appearing to be further cross examined. There is nothing in the record of appeal showing what steps Learned Counsel for the appellant took to enforce the order of the trial Court. Rather the records show that the defence elicited evidence in defence without saying anything concerning the issuance and service of the summons on PW1 to come to Court to be further cross examined and the non availability of the PW1 in Court to be further cross examined.
After the close of defence evidence, both sides filed written final addresses. The appellant did not mention the need for him to further cross examine PW1. The appellant did not raise the issue in his final written address. The appellant abandoned and waived the right or opportunity to further cross examine PW1 before the close of the prosecution?s evidence or before judgment.
In any case the appellant has not shown what prejudice he has suffered by not further cross examining PW1. When PW1 testified, he was cross examined by Learned Counsel for the appellant, who upon concluding his cross examination of PW1, the Court gave opportunity for the re-examination of the witness by the prosecution. The prosecution opted not to re-examine him. So the argument of Learned Counsel for the appellant that the cross examination of PW1 was not concluded is not correct. It is because Learned counsel for the appellant had concluded his cross-examination of PW1, that is why he later applied for leave of the trial Court to further cross- examine him. The application for leave to further cross examine PW1 was made and granted after the conclusion of the testimonies of PW1 and PW2.
In the light of the foregoing, issue No. 5 is resolved in favour of the respondent.
Let me now determine issue No. 6 which asks- ‘Whether the sentence passed by the Learned Trial Judge on the Appellant is justified in law and supported by evidence’.
Learned Counsel for the appellant failed to show the basis for his submission that the sentence levied by the trial Court is not justified in law and by the evidence. In an appeal, it is not enough to argue without more that the decision of the lower Court is wrong or not supported by the evidence. The appellant must go further to show by reference to the evidence on record why the decision is not supported by the evidence and also proffer legal reasons for arguing that the decision is wrong in law. The trial Court sentenced the appellant on each count to imprisonment of 3 years or fine of One Million Naira with an order that the sentences run concurrently. S.312 of the Penal Code enables the trial Court to impose the above sentence.
I do not agree with the argument of Learned Counsel for the appellant that the award of 12 million naira compensation to Police Equipment Foundation is wrong as there is no calculation on how the trial Court found that the four vehicles are worth N12,000,000.00. I agree with the argument of Learned Counsel for the respondent that exhibit A which showed that the appellant sold one of the 4 Toyota Hilux pick up vehicle to PW2 at the price of 3 Million Naira provide enough evidential basis for the Court’s decision that the 4 Hilux Pick up vehicles together cost 12 million naira. The testimony of PW2 that he paid the appellant 3million naira to the appellant as purchase price of one Hilux Pick-up vehicle is not challenged or contradicted by the appellant. Therefore, I hold that the trial Court’s award of 12 million naira compensation to Police Equipment Foundation is justified by the evidence.
It is beyond argument that at the commencement of the criminal proceedings in the trial Court on 23-1-2009, the law that regulated the procedure of trial of offences in the Penal Code was the CPC. The Administration of Criminal Justice Act (ACJA) came into force on 13-5-2015 when this case was pending and on-going at the trial Court. Judgment in the trial Court was delivered on 25-1-2016. From the 13-5-2015, the CPC had ceased to exist and the Administration of Criminal Justice Act (ACJA) had become operative as the law governing the procedure of trial of offences under the Penal Code. So the trial Court was right to have made the award of compensation under S.319(1)(a) of the Administration of Criminal Justice Act (ACJA) which provided for such award in a criminal trial after conviction and sentence. It is settled law that where the procedural legislation applicable when a matter was commenced, ceases to exist during the pendence or in the course of the proceedings and it is replaced by a new procedural legislation, further proceedings in the case would be governed by the new procedural legislation.
In the light of the foregoing, issue No. 6 is resolved in favour of the respondent.
Let me consider issue 7 which asks- ‘Whether the Learned Trial Judge was right to have expunged Exhibit J from the record’.
The part of the judgment of the trial Court complained against under issue No. 7 reads thusly-
‘Exhibit ‘J’ the extra judicial statement made to the Police by PW7 Kenny Martins was tendered in evidence with the consent of the accused Counsel. This Court did not make use of Exhibit ‘J’ because same ought not to have been admitted in this case. The only occasion Exhibit ‘J’ can be used is to use same to contradict PW7 but this was not the case. It was tendered and admitted by consent of parties, Exhibit J is hereby expunged from the record of this Court.
Learned Counsel for the appellant in his argument did not complain about the decision of the trial Court that it did not make use of exhibit J. Issue 7 asks whether the trial Court was right to have expunged exhibit J from the record. Learned Counsel has simply argued that the trial Court was wrong to have expunged exhibit J. So both the issue and the argument remained silent about the reason the trial Court gave for expunging exhibit J. The reason it gave was that it did not make use of that exhibit. So if the trial Court did not make use of that exhibit and the appellant has no complain about that, then complaining about the expunging of the exhibit by the trial Court serves no useful purpose in this appeal.
In any case the appellant has not shown or alleged that the expunging of exhibit J by the trial Court has occasioned any miscarriage of justice. He has not shown which part of exhibit J contradicts the testimony of PW7 and has not shown that the decision of the trial Court would have been different but not for the error of the trial Court expunging exhibit J.
Issue No. 7 is resolved in favour of the respondent.
Let me now determine issue No. 8 which asks- Whether the Lower Court was right to have used the evidence of the P.W.7 and rely on same to safely convict the Appellant without the Lower Court warning itself when there is copious evidence on record that there is animosity and grouse between the P.W.7 and the Appellant.
Learned Counsel for the appellant argued that there is copious evidence that PW7 and appellant are mortal enemies and therefore the trial Court should have warned itself of the danger of relying on PW7’s testimony. He urged this Court to disregard PW7’s evidence.
Learned Counsel for the respondent argued in reply that there is no evidence that PW7 and appellant were enemies, that the fact that there had been disagreement amongst the Police Equipment Foundation management or between PW7 and the appellant, does not make them enemies and that the trial Court did not rely on only the testimony of PW7, that outside the testimony of PW7, there was abundant evidence in support of the conviction of the appellant.
Let me now determine the merit of the above arguments.
There is no doubt that the appellant and PW7 had some differences. There is no evidence that the differences or disagreement degenerated into them being mortal enemies. Be that as it is, Learned Counsel for the appellant did not show that the failure of the trial Court to warn itself affected the evidence before it and how it treated or used the evidence in reaching its decision to convict the appellant. The failure of the Court to warn itself of the danger of relying on such evidence cannot affect its decision on the evidence unless prejudicial effect of such errors is established. Assuming the appellant and PW7 were sworn enemies, that alone cannot affect the credibility of PW7?s testimony. See Yahaya v State (2001) 10 NWLR (Pt. 721) 360 at 377 in which this Court held that.
It is settled law that in criminal trials the mere fact of the relationship of a witness with either the victim of the offence or the accused person does not affect the probative value of his testimony. Thus, in murder cases, for instance, the mere fact of a prosecution witness being the father, mother, wife or any other close relation of the deceased, or of his being a sworn enemy of the accused, does not reduce the credibility of his testimony. All that is desirable in such circumstances, is for the trial Court to warn itself of the veracity of his testimony. See Oteki v. A-G., Bendel State (1986) 2 NWLR (Pt. 24) 648; Omosumofia v State (1999) 13 NWLR (Pt. 633) 42 at 54; Ogunlana v State (1995) 5 NWLR (Pt. 395) 266 and Ogunye v. State (1995) 8 NWLR (Pt. 413) 333. And even where he fails to warn himself of the dangers of the evidence of such a witness, a failure so to do would not ipso facto affect a conviction based thereon.
In any case the trial Court did not rely only on the testimony of PW7. It also relied on the testimonies PW1, PW2, PW3, PW4, PW5 and PW6 and the contradictory defences of the appellant to convict him. So without the testimony of PW7, the other evidence relied on by the trial Court justify the conviction of the appellant.
In the light of the foregoing, I resolve issue No. 8 in favour of the respondent.
On the whole, this appeal fails as it lacks merit. It is accordingly dismissed. The judgment of the High Court of the Federal Capital Territory delivered on 25-4-2016 in Charge No. FCT/HC/CR/21/2009 by S.E. Aladetoyinbo J is hereby affirmed and upheld.
ZI was afforded in advance a copy of the judgment just delivered by my learned brother, Emmanuel Akomaye Agim, JCA. Having meticulously perused same, I am in complete agreement with the reasoning and conclusions contained therein to the effect that the appeal is devoid of any merit.
I adopt the judgment as mine and join my brother in dismissing the appeal. I adopt all consequential orders made therein.
STEPHEN JONAH ADAH, J.C.A.: I had the privilege of reading in draft the judgment just delivered by my learned brother, Emmanuel Akomaye Agim, JCA.
I agree with the reasoning
Appearances:
Idumodin Ogumu, Esq. with him, Usman Y. Esq.For Appellant(s)
Chief C. Okoroma, Esq. with him, D. E. Adamu, Esq., M.Y. John, Esq., Chioma Okongwu, Esq. and M.E. Eimonye, Esq.For Respondent(s)
