ISA BELLO v. FEDERAL REPUBLIC OF NIGERIA
In The Supreme Court of Nigeria
On Friday, the 11th day of May, 2018
SC.773/2014
RATIO
PRE-CONDITION FOR RAISING A FRESH ISSUE ON APPEAL
…a fresh issue can only be raised at the appellate Court with the leave of Court. PER SIDI DAUDA BAGE, J.S.C.
WHETHER THE SUPREME HAS THE JURISDICTION TO ENTERTAIN APPEALS DIRECTLY FROM THE TRIAL COURT OR HEAR AN APPEAL THAT HAS NOT BEEN DECIDED UPON BY THE COURT OF APPEAL
… it is an elementary principle that this Court does not entertain appeals directly from the trial Court. Its role is limited to seeing whether or not the decision of the Court of Appeal that affirmed the Judgment of the trial Court is correct – IBATOR VS BARAKURO & ORS. (2007) 9 NWLR (Pt.1040) 475 SC. See also IBORI VS AGBI (2004) 6 NWLR (Pt. 868) 78 at 143, wherein this Court per Uwaifo, JSC, also observed as follows: The Supreme Court has no jurisdiction to usurp the function of the Court of Appeal either by hearing an appeal directly from a High Court or by hearing an appeal, which though lying before the Court of Appeal is yet to be decided by that Court because to do so will amount to a violation of the Constitution and will be null and void. The Supreme Court has no jurisdiction to hear a Suit or an issue in a Suit fit for the High Court.” PER SIDI DAUDA BAGE, J.S.C.
CIRCUMSTANCE WHERE THE COURT OF APPEAL IS IN AS GOOD A POSITION AS THE TRIAL COURT TO DO ITS OWN EVALUATION OF THE EVIDENCE TENDERED BEFORE THE TRIAL COURT; DUTY OF THE APPELLATE COURT WHEN THE QUESTION OF EVALUATION OF EVIDENCE INVOLVES CREDIBILITY OF WITNESSES
This law is that it is only where and when a Court fails to evaluate evidence at all or properly that a Court of Appeal can intervene, and evaluate or re evaluate such evidence. As a general rule therefore, when the question of evaluation of evidence does not involve credibility of witnesses but against the non-evaluation or improper evaluation of the evidence, the appellate Court is in as good a position as the trial Court to do its own evaluation – See FATAI VS THE STATE (2013) 10 NWLR (pt. 1361) 1 at 21 SC. So, when the question of evaluation of evidence involves credibility of witnesses, and appellate Court cannot do much since it is the trial Court that saw them, heard them and watched their demeanour that is in the vantage position to believe or disbelieve witnesses, and this can never be captured by an appellate Court, which only has the “cold printed record to contend with” – See SOGUNRO & ORS VS YEKU & ORS (2017) LPELR-41905 (SC). “Credibility” is the quality of being convincing or believable, and since the trial Court has the liberty and privilege to believe one witness or disbelieve another witness, its findings predicated on the belief or the disbelief of witnesses, is almost sacrosanct, as this can only be questioned on appeal if it is against the drift of the evidence before a trial Court, when considered as a whole -See ADELUMOLA VS THE STATE (1988) 1 NWLR (Pt. 73) 683 SC. PER SIDI DAUDA BAGE, J.S.C.
DUTY OF THE SUPREME COURT AS REGARDS INTERFERENCE WITH THE CONCURRENT FINDINGS OF FACT BY THE TRIAL COURT AND THE COURT OF APPEAL
Obviously, the question of the Court of Appeal re-evaluating the evidence before the trial Court does not come into the question. The trial Court believed the witnesses called by the Prosecution. It found DW.1, the only witness called by the defence, unreliable, and it refused to accept or act on his testimony in their defence. In other words, it assessed the credibility of the witnesses, and accepted and believed the Prosecution witnesses, therefore, the Court below was right not to interfere with its findings and conclusions that had not been shown to be perverse in any way. This Court is also not in a position to intervene because as Ademola, CJN, observed in the case of OMISADE VS THE QUEEN (1964) NSCC (Vol. 3) 170, it is not the function of this Court to retry a criminal case on appeal. He further stated as follows: “If there was evidence before the trial Judge from which he could reasonably have come to the conclusion to which he did, the verdict must stand. The law was aptly put by Lord Tucker in the case of R. VS ALADESURU & ORS 39 C.A.R 184, which was an appeal from Nigeria. The learned Lord at p. 185 of the Report said: “It will be observed that the language of the WACA ordinance follows the English Criminal Act, 1907, under which it has long been established that the appeal is not by way of re hearing as in civil appeals from a Judge sitting alone, but is a limited appeal, which precludes the Court from previewing the evidence and making its own valuation.” In this case, the Court below found that there was evidence before the trial Court from which it could reasonably have come to the conclusion it did that the Appellant was guilty as charged, and so, its decision that the verdict of the trial Court must stand, cannot be faulted, this Court cannot interfere with that finding. More importantly, the law says that where there is sufficient evidence to support concurrent findings of fact by the trial Court and the Court below, they will not be disturbed unless there is significant error apparent on the Record; that is, the findings are shown to be perverse, or some miscarriage of justice or some violation of the principles of law or procedure is shown thereon – See OGOALA VS THE STATE (1991) 2 NWLR (Pt.175) 506 SC. In other words, the two lower Courts are concurrent in their decisions and the onus lies on the Appellant to give very good reasons why this Court should interfere with the findings of fact arrived at by the two lower Courts. ‘It is not a matter of course:- MUHAMMAD VS THE STATE (2017) 13 NWLR (pt. 1583) 386 SC. PER SIDI DAUDA BAGE, J.S.C.
JUSTICES
OLABODE RHODES-VIVOUR Justice of The Supreme Court of Nigeria
MARY UKAEGO PETER-ODILI Justice of The Supreme Court of Nigeria
JOHN INYANG OKORO Justice of The Supreme Court of Nigeria
AMIRU SANUSI Justice of The Supreme Court of Nigeria
SIDI DAUDA BAGE Justice of The Supreme Court of Nigeria
Between
ISA BELLO Appellant(s)
AND
FEDERAL REPUBLIC OF NIGERIA Respondent(s)
SIDI DAUDA BAGE, J.S.C. (Delivering the Leading Judgment): The Appellant, and fourteen other Herdsmen, were arraigned before the Federal High Court, Jos, on a three-count Charge of conspiracy, possession of firearms and acts of terrorism, to wit;
“Intimidated, put in fear citizens of Kadunu Village and environs in Mangu Local Government Area of Plateau State, while armed with dangerous weapons such as machetes, knives, bow and arrows, slings and axes, pursuant to which you put in danger the residents of these villages causing the death of several persons, serious injuries to several others, damage to public and private properties and natural resources and thereby committed an offence contrary to and punishable under Section 15 (2) of the Economic and Financial Crimes Commission Act.2004.”
At the trial, the Prosecution called five Witnesses and tendered fifty-seven Exhibits, including Dane guns, bows and arrows, etc, and the Statements of the Appellant and other Accused Persons to the Police, as Exhibits A1-A14, wherein they had confessed to committing some of the said offences charged against them.
1
The Prosecution’s case is that after a communal disturbance on 8/3/2010, the Accused Persons were arrested with assorted weapons by Soldiers, who later handed them over to the Police.
None of the Accused Persons, including Appellant, testified in their defence but they called one witness, Mohammed Hassan, the leader of his community, called Hardo, Head of Fulani, and he testified that he was informed of an attack by Berom people, and when they were surrounded by some people, who started burning their houses, he advised the Accused Persons to escape to a secure place. They met Soldiers while trying to escape and were stopped. The Soldiers shot at them. He said he was shot but survived, and that the Accused persons were then arrested. He explained that they were herdsmen, and had the guns for the protection of their cattle, and that none of them used the guns.
The leamed trial Judge, Allagoa J., did not believe DW.1, and in his Judgment delivered on 16/12/2010, he concluded:
“It is not enough for the defence to rely on the evidence of DW.1 or self defence because he is an unreliable witness for reasons I had earlier stated.
2
The Prosecution have proffered contrary evidence to the defence as set up by the Accused Persons in their Extra-Judicial Statement, it is now their duty to enter the witness box and testify showing circumstances under which they apprehended fear of death to have warranted them to commit the act. They had therefore, rested their case on Prosecution evidence. In all the circumstances of the case, I find that the Prosecution has proved the 3 Count Charge against 15 Accused Persons beyond reasonable doubt and they are therefore jointly, severally and variously convicted as charged.”
The Appellant, who was the tenth Accused Person was sentenced to two years imprisonment without an option of fine in Count 1, and ten year’s imprisonment without option of fine in Court III.
Dissatisfied, the Appellant appealed to the Court of Appeal and in dismissing his Appeal, the Court of Appeal held as follows:
“The learned trial Judge assessed the credibility of the witnesses, he accepted and believed their evidence. This Court cannot interfere with such findings and conclusions without good cause to do so. See IKO VS THE STATE (2001) 14 NWLR (Pt.132) 221 and MODUPE VS THE STATE (1988) 4 NWLR (Pt.87)
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130, having resolved all three issues against the Appellants, the Appeal fails, same is dismissed. The Judgment of the lower Court is hereby affirmed.”
Further aggrieved, the Appellant appealed to this Court with a Notice of Appeal containing the following two Grounds of Appeal:
GROUND ONE
“The learned Justices of the Court of Appeal erred in law when they affirmed the decision of the trial Court that the Charges against the Appellants were proved beyond reasonable doubt.”
GROUND TWO
“The learned Justices of the Court of Appeal erred in law when they affirmed the decision of the trial Court rejecting the defence of the Appellants.”
The Respondent raised a Notice of Preliminary Objection against the Appeal in its Brief of Argument. It is praying this Court for:
“An order striking out GROUND TWO of the Appellant’s Grounds of Appeal herein for being incompetent, in that it raised a fresh issue on appeal without the prior leave of either the lower Court or this Honourable Court.”
The Grounds for the Respondent’s Objection are as follows:
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“(a) That Appellant’s Ground Two is grossly incompetent in that it has raised a fresh issue on appeal that was neither canvassed nor ruled upon by the lower Court without the leave of this Court.”
“(b) That a fresh issue raised on appeal without leave is ab initio incompetent and of no legal effect.”
It cited ELIOCHIN NIG. LTD. VS MBADIWE (1986) 1 NWLR (Pt.14) 14, EZEKUDE VS ODOGWU (2002) 1 NWLR (Pt. 784) 366, UKO VS EKPEYONG (2006) ALL FWLR (Pt. 324) 1927, JIDDIN VS ABINA (2000) FWLR (Pt.24) 1405 on the position of the law that an Appellant would not be allowed to canvass a fresh issue on appeal without the leave of the trial Court or the appellate Court.
It is its contention that the Appellant is challenging the non-evaluation of the testimony of DW.1, which was not one of the Grounds of Appeal or nominated as an Issue in the Court below, therefore, it did not form part of the decision from that Court; that he must first seek and obtain leave either of the lower Court or this Court before he can do so; and that having failed to obtain leave, Ground Two in this Appeal is incompetent and liable to be struck out, citing OKPOKO COMM. BANK VS IGWE (2013) 13 NWLR (Pt. 1376) 167, OGBA VS ONWUZO (2005) 6 SC (Pt. 1) 41.<br< p=””
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Yes, a fresh issue can only be raised at the appellate Court with the leave of Court. However, the Respondent’s objection is neither here nor there since the Appellant’s complaints in the two Grounds of Appeal touches on the evaluation of evidence by the trial Court and failure of the Court below to re-evaluate same.
It is on that premise that the Appellant distilled two issues for Determination from the said Grounds of Appeal, as follows:
“1. Whether the learned Justices of the Court of Appeal were not in error when they affirmed the decision of the trial Court that the Prosecution had proved the 3 offences with which the Appellants were charged beyond reasonable doubt.”
“2. Whether the learned Justices of the Court of Appeal do not have a duty, Ex debito Justiae to evaluate the evidence led by the Appellant fully by way of re-hearing where the trial Court failed to do so.
The Respondent formulated only one issue for determination i.e.
“Whether the learned Justices of the Court of Appeal were not in error when they affirmed the decision of the trial Court that the prosecution had proved the 3
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offences with which the Appellant was charged beyond reasonable doubt.”
In my view, the issue for determination is simply whether the Court of Appeal was right to affirm the decision of the trial Court.
To lay down some ground rules for determining this Appeal, I must point out that it is an elementary principle that this Court does not entertain appeals directly from the trial Court. Its role is limited to seeing whether or not the decision of the Court of Appeal that affirmed the Judgment of the trial Court is correct – IBATOR VS BARAKURO & ORS. (2007) 9 NWLR (Pt.1040) 475 SC.
See also IBORI VS AGBI (2004) 6 NWLR (Pt. 868) 78 at 143, wherein this Court per Uwaifo, JSC, also observed as follows:
The Supreme Court has no jurisdiction to usurp the function of the Court of Appeal either by hearing an appeal directly from a High Court or by hearing an appeal, which though lying before the Court of Appeal is yet to be decided by that Court because to do so will amount to a violation of the Constitution and will be null and void. The Supreme Court has no jurisdiction to hear a Suit or an issue in a Suit fit for the High Court.”
7
In this case, the Appellant focused on the arguments in his brief on decrying the trial Court’s findings for instance, he argued that:
Police investigation and subsequent prosecution where quite shoddy to say the least. If the Police had investigated, and the evidence of DW.1 indicates that the Police investigated whose houses were burnt down but sadly this evidence was not presented in Court. If the evidence that it was the Fulani houses that were burnt was presented in Court, then surely the charge of terrorism at least would have been ridiculous since the Appellant cannot be punished by the law when he and his people were victims guarding their homes. Unfortunately, no such evidence was presented before the Court. The Appellant suffered another blow from the learned trial Judge, who dismissed his defence outright but condescended to pick up morsels from the evidence to help the Prosecution.”
Under his Issue 2, the Appellant further submitted as follows:
“The learned trial Judge said the evidence of DW.1, the sole defence witness “did not follow a natural flow” but nevertheless used some part of the evidence “which corroborates the evidence of PW.2 & 3.
8
It would seem that to the learned trial Judge, the evidence of the defence is only acceptable if it corroborates the evidence of the Prosecution otherwise it would be considered as “not following a natural flow.” The learned trial Judge’s mindset in this regard was again captured in his Judgment (p.107 of the Record) when he said “The matter is more convincing given how close to the place where they were arrested to burnt houses where people were killed”‘ This scandalous finding shows that the Court had closed its mind to any defence the Appellant may offer. It was irrelevant to the trial Judge that the Appellant was neither charged with murder nor arson before him and he concluded: “From the conduct of the Accused Persons, it can be inferred that they conspired to commit an unlawful purpose and I thereby draw that inference.”
His only reference to the Court of Appeal is his submission that:
“From this testimony (of DW.1) and the extrajudicial statement of the Appellant, the defence of self-defence or private defence was clearly the fulcrum of his defence.
9
Yet, the defence was out rightly rejected by the learned trial Judge and by the learned Justices ofthe Court of Appeal, who affirmed the learned trial Judge’s decision.”
However, it is his contention in this Appeal that the lower Courts, trial Court and Court of Appeal, were in manifest error when they failed to properly consider his defence. He submitted that where the trial Court fails to, as in this case, the Court below has a duty Ex Debito Justiae to consider the defence; that there is no crime however serious that a defence of an Accused will be considered irrelevant, however, stupid or improbable it may seem and that:
“A Court of Justice, as the name connotes, must do justice both to the society at large and the Accused Persons, however, obnoxious the Court may consider them.”
He conceded that the general principle is that where there are concurrent findings of fact by the trial Court and the Court below, this Court is not likely to disturb such findings unless the findings are perverse or lead to injustice, but argued that this case falls into one of the exceptions where this Court will intervene, citing UDE VS CHIMBO (1998) 12 NWLR (Pt.577) 169, WOLUCHEM VS GUDI (1981) 5 SC 291, KUFORIJI VS V.Y.B. (1981) 6-7 SC
10
40, ADEGOKE VS ADIBI (1992) 5 NWLR (Pt. 242)410, NNEJI VS CHUKWU (1996) 10 NWLR (pt. 478) 269, AGBOMEJI V. BAKARE (1998) 9 NWLR (Pt. 564) 1, OVERSEAS CONST. LTD VS CREEK ENT. LTD. (1985) 3 NWLR (Pt.13) 414 and ATOLAGBE VS SHORUN (1985) 1 NWLR (pt.2) 375. He urged this Court to hold:
“- There is no evidence to prove the Charge beyond reasonable doubt;
– The lower Court erred in upholding the decision of the trial Court;
– The trial Court relied on hearsay evidence to convict and failed to properly evaluate his evidence before it; and that
– The Court below erred in failing to evaluate it by way of re-hearing.”
The Respondent made the usual submissions about the position of the law on the duty of the Prosecution in criminal proceedings, the findings of the trial Court on each count of the said charge; and its decision thereon, and submitted that the Court of Appeal not only accepted all the findings of fact made by the trial Court, but concluded that it proved the case beyond reasonable doubt.
Furthermore, that it is trite that this Court does not make it a practice to disturb concurrent finding of the two lower
11
Courts, unless they are shown to be perverse, citing BEN VS THE STATE (2006) 16 NWLR (Pt.1006) 582, where this Court held that:
“The learned trial Judge and the Justices of the Court of Appeal accepted the version of the evidence led by the Prosecution… There was therefore concurrent findings of facts by the two lower Courts. The position of the law is that this Court will not disturb such concurrent findings of the two lower Courts unless it is shown that such findings are perverse or that there was a substantial error either in the substantive or procedural law which if uncorrected, will lead to a miscarriage of justice.”
It also cited ONWUAMA VS EZEOKOLI (2002) 2 SCNJ, 271, AMUSA VS THE STATE (2003) 1 SCNJ 518, UBANI VS THE STATE (2003) 18 NWLR (Pt. 851) 247 SC and AKINKUGBE VS EWULUM HOLDINGS (2008) 12 NWLR (Pt. 1098) 375, and urged this Court to uphold the decision of the Court below and resolve its issue against the Appellant, the Prosecution having proved its case against him.
As I pointed out earlier, the issue in this Appeal boils down to whether the Court below should have re-evaluated evidence.
12
This law is that it is only where and when a Court fails to evaluate evidence at all or properly that a Court of Appeal can intervene, and evaluate or re evaluate such evidence. As a general rule therefore, when the question of evaluation of evidence does not involve credibility of witnesses but against the non-evaluation or improper evaluation of the evidence, the appellate Court is in as good a position as the trial Court to do its own evaluation – See FATAI VS THE STATE (2013) 10 NWLR (pt. 1361) 1 at 21 SC.
So, when the question of evaluation of evidence involves credibility of witnesses, and appellate Court cannot do much since it is the trial Court that saw them, heard them and watched their demeanour that is in the vantage position to believe or disbelieve witnesses, and this can never be captured by an appellate Court, which only has the “cold printed record to contend with” – See SOGUNRO & ORS VS YEKU & ORS (2017) LPELR-41905 (SC).
“Credibility” is the quality of being convincing or believable, and since the trial Court has the liberty and privilege to believe one witness or disbelieve another witness, its findings predicated on the belief or the disbelief of
13
witnesses, is almost sacrosanct, as this can only be questioned on appeal if it is against the drift of the evidence before a trial Court, when considered as a whole -See ADELUMOLA VS THE STATE (1988) 1 NWLR (Pt. 73) 683 SC.
In this case, the Court below, in resolving the first issue of whether the Prosecution proved its case against the Appellants, set out the evidence and findings of the trial Court, and stated:
The trial Court had made findings and conclusions after evaluating the evidence before it. It also ascribed evidential value to the evidence produced before it. This Court being an appellate Court, cannot disturb these findings and conclusions, unless there are good reasons to do so. The Appellants have not been able, also to show or established that the trial Court failed in its duty of evaluating the evidence and ascribing probative value therefore – – – The credibility or otherwise of witnesses, and the ascription of probative value to the evidence of a witness are entirely within the province of a trial Court. An appellate Court cannot, and should not disturb such exercise unless it was not done, or if done, not properly performed
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before an appellate Court can perform such duty – – Therefore, in view of what have been said in the foregoing paragraphs of this Judgment, the Prosecution has proved its case beyond reasonable doubt against the Appellants for the offence of conspiracy, illegal possession of firearms and the offence under the EFCC Act.”
On the issue of whether the Prosecution proved its allegation of illegal possession of firearms against the Appellants, it also held:
“As earlier pointed out in this Judgment, there were no contradictions in the evidence of the Prosecution Witnesses on the number of guns or firearms generally that where recovered from the Appellants. Having admitted being in possession of the guns and or firearms, the offence of illegal possession thereof, have been proved, notwithstanding the evidence of DW.1, who testified that the guns were for the protection of their animals. The learned trial Judge assessed the credibility of the witnesses he accepted and believed their evidence. This Court cannot interfere with such findings and conclusions without good cause to do so. – – In view of the foregoing, the Prosecution had proved the allegation of illegal
15
possession of firearms against the Appellants who were so convicted. This issue is so resolved.
– -The Appeal fails, same is dismissed.”
Obviously, the question of the Court of Appeal re-evaluating the evidence before the trial Court does not come into the question. The trial Court believed the witnesses called by the Prosecution. It found DW.1, the only witness called by the defence, unreliable, and it refused to accept or act on his testimony in their defence.
In other words, it assessed the credibility of the witnesses, and accepted and believed the Prosecution witnesses, therefore, the Court below was right not to interfere with its findings and conclusions that had not been shown to be perverse in any way.
This Court is also not in a position to intervene because as Ademola, CJN, observed in the case of OMISADE VS THE QUEEN (1964) NSCC (Vol. 3) 170, it is not the function of this Court to retry a criminal case on appeal. He further stated as follows:
“If there was evidence before the trial Judge from which he could reasonably have come to the conclusion to which he did, the verdict must stand.
16
The law was aptly put by Lord Tucker in the case of R. VS ALADESURU & ORS 39 C.A.R 184, which was an appeal from Nigeria. The learned Lord at p. 185 of the Report said:
“It will be observed that the language of the WACA ordinance follows the English Criminal Act, 1907, under which it has long been established that the appeal is not by way of re hearing as in civil appeals from a Judge sitting alone, but is a limited appeal, which precludes the Court from previewing the evidence and making its own valuation.”
In this case, the Court below found that there was evidence before the trial Court from which it could reasonably have come to the conclusion it did that the Appellant was guilty as charged, and so, its decision that the verdict of the trial Court must stand, cannot be faulted, this Court cannot interfere with that finding.
More importantly, the law says that where there is sufficient evidence to support concurrent findings of fact by the trial Court and the Court below, they will not be disturbed unless there is significant error apparent on the Record; that is, the findings are shown to be perverse, or some miscarriage of
17
justice or some violation of the principles of law or procedure is shown thereon – See OGOALA VS THE STATE (1991) 2 NWLR (Pt.175) 506 SC.
In other words, the two lower Courts are concurrent in their decisions and the onus lies on the Appellant to give very good reasons why this Court should interfere with the findings of fact arrived at by the two lower Courts. ‘It is not a matter of course:- MUHAMMAD VS THE STATE (2017) 13 NWLR (pt. 1583) 386 SC.
In this case, there is sufficient evidence established by the Prosecution to support the concurrent findings of the two lower Courts and this is one more reason this Court cannot intervene.
The Appeal lacks merit and it is dismissed, and I affirm the Judgment of the Court below upholding the trial Courts decision.
OLABODE RHODES-VIVOUR, J.S.C.: I read in advance the leading judgment delivered by my learned brother, Bage JSC. I agree with his Lordship that there is more than enough evidence established by the prosecution and affirmed by the Court of Appeal to show that concurrent findings of both Courts below are correct.
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It is for this brief observations that I too dismiss this appeal.
MARY UKAEGO PETER-ODILI, J.S.C.: I agree with the judgment just delivered by the learned brother, Sidi Dauda Bage JSC and to underscore my support in the reasonings from which the decision came about, I shall make some comments.
This is an appeal against the judgment of the Court of Appeal, Jos Division delivered by R. C. Agbo, I. S. Bdliya and P. O. Ige JJCA on the 27th day of March, 2013 in which the Court of Appeal or Court below or Lower Court dismissing the appeal and affirmed the judgment of the trial Federal High Court per Alagoa J. in convicting the appellant for the offences of conspiracy contrary to Section 518 (5) of the Criminal Code Act and terrorism contrary to Section 15 (2) of the Economic and Financial Crimes Commission Act 2004.
The background facts leading to this appeal are well set out in the lead judgment and so I shall refrain from repeating same unless the occasion warrants a reference to any part of it.
On the 15th day of February 2015 date of having, learned counsel for the appellant, M. M. Nuruddeen adopted the brief of argument filed on 19/5/2016 in which he distilled two
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issues for determination which are as follows:
ISSUE ONE:
Whether the learned Justices of the Court of Appeal were not in error when they affirmed the decision of the trial Court that the prosecution had proved the 2 offences with which the appellant was charged beyond reasonable doubt.
This issue is distilled from ground 1 of the Notice of Appeal.
ISSUE TWO:
Whether the learned Justices of the Court of Appeal do not have a duty, Ex debito Justiae to evaluate the evidence led by the appellant fully by way of re-hearing where the trial Court had failed to do so.
Learned counsel for the respondent, Charles Ihua – Maduenyi Esq., adopted the brief of argument filed on the 23/5/2016 and crafted a lone issue which is thus:-
Whether the learned Justices of the Court of Appeal were not in error when they confirmed the decision of the trial Court that the prosecution had proved the 3 offences with which the appellant was charged beyond reasonable doubt.
The above stated single issue of the respondent effectively captures all the questions seeking answers in this appeal and into which the two issues of the appellant dovetail.
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SOLE ISSUE:
Whether the learned Justices of the Court of Appeal were not in error when they affirmed the decision of the trial Court that the prosecution had proved the three offences with which the appellant was charged beyond reasonable doubt.
Learned counsel for the appellant submitted that there was not enough evidence before the trial Court to prove the charges against the appellant and so the prosecution had failed to prove their case beyond reasonable doubt as required by Section 135 (1) and (2) of the Evidence Act and explained in a myriad of judicial authorities.
That the evidence of PW1 contained hearsay and conclusion as she was not an eye witness and her evidence should be discountenanced. That the evidence of pw3 was improbable which was manifest and obvious. He stated that the defence as put up in the evidence of DW1 both in his extrajudicial statement and evidence in Court wherein he raised the issue of self defence which the learned trial judge erroneously dismissed instead of using them to discharge the appellant. He cited Kada v The State (1991) 6 LRCN 1879 at 1884; Section 59 of the Penal Code;
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Section 46(a) of the Economic and Financial Crimes Commission Act; Sections 286-288 Criminal Code.
Learned counsel for the appellant further contended that the trial Court picked and chose which evidence proffered by the defence to believe and this it cannot do. He cited Ahmed v The State (1999) 7 NWLR (pt. 612) 641 at 681; Akpabio v The State (1994) 7 NWLR (Pt. 359) 635 at 671.
That the trial Court failed to consider the defences put up by the appellant and the Court below made a similar mistake in ignoring those defences and so making it imperative for the Apex Court to intervene and right the wrong done to the appellant. He cited Ude v Chimbo (1998) 12 NWLR (pt. 577) 169 at 186-187 and 194; Woluchem v Gudi (1981) 5 SC 291; Kuforiji v V. Y. B. (1981) 6-7 SC 40 at 84 etc.
In response, learned counsel for the respondent submitted that the overwhelming case of the prosecution established the commission of the offences for which appellant was charged beyond reasonable doubt. He referred the Court not only to the various testimonies of the five prosecution witness as against that put up by the defence and the evaluation and due consideration by the trial Court and
22
stated that there was no basis upon which an interference of concurrent findings and conclusion of the two Courts below can be anchored. He cited Ben v The State (2006) 4 FWLR (Pt. 345) 1507; Onwuama v Ezeokoli (2002) 2 SCNJ 271; Amusa v The State (2003) 1 SCNJ 518; Ubani & 2 Ors v The State (2003) 18 NWLR (Pt. 851) 247 etc.
The requirement and the standard of proof expected to be produced by the prosecution are as provided in Section 135 of the Evidence Act, 2011 which section and Subsections (1) and (2) I shall recast hereunder thus:
“1. If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.
2. The burden of proving that any person has been guilty of a crime or wrongful act is subject to the provisions of Section 139 of this Act, on the person who asserts it, whether the commission of such act is or is not directly in issue in the action.
This is the standard of proof required in a criminal trial as this Honourable Court has ruled in a myriad of cases.
23
He refer to Igbi v The State (2000) 3 NWLR (Pt. 648) 169 at 192; Onafowokan v The State (1987) 3 NWLR (Pt.61) 538; State v Okechukwu (1994) 9 NWLR (Pt. 368) 273 at 297; Bakare v The State (1987) Vol.18 (Pt.1) NSCC 267; State v Danjuma (1997) 5 NWLR (pt. 506) 512 at 528 and 529; Obiakor v The State (2002) 10 NWLR (pt 776) 612 at 627.
From the prosecution’s case, one can easily see that the facts established by the prosecution in bullet point form are as follows:
(1) There were crises in Jos and environs including the Kaduna Area which resulted in Killings and destruction of houses and properties.
(2) All the accused persons were seen by two eye witnesses PW2 and PW3 at the scene of the crisis in possession of dangerous weapons such as Dane guns, bows and arrows, machetes, long knives, axes, etc.
(3) The accused persons pulled the trigger and shot at the men of the Joint Military Task Force injuring one of them.
(4) All the accused persons in their extra-judicial statements admitted being in possession of the weapons found on them at the scene of arrest.
(5) The ballistics report of the Dane guns and shots guns revealed residue of burnt propellants which was
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an indication that the guns were recently fired, They still carried undischarged bullets in them.
(6) Photographs of all the accused persons and the weapons recovered from them positively identified he accused persons.
The defence put up by the appellant was that of self defence which the trial Court discountenanced as not supportable within the flow of the facts on ground.
Indeed I see a recast of the evaluation, findings and conclusion of the learned trial judge helpful when quoted verbatim at least the material excerpts at pages 102 103 which are thus:
“Upon consideration of the evidence, the following facts are found:
1) Sometimes in January 2010 in Jos environs in Plateau State a crisis erupted culminating in attacks and counter attacks between the Biroms and Fulanis.
2) The evidence shows that on 8/3/2010, during the crisis, houses were burnt in Dogo Nhauwa, people were maimed and some killed as a result of attacks on them.
3) About that time in Mangu Local Government Area and the environs, all the accused persons were seen together armed with dangerous weapons.
4) Soldiers on security alert accosted the accused
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persons and shots were fired at each other between the accused persons and the soldiers.
5) As a result of the shooting, one person among the Accused persons was shot dead and one soldier was injured from shots fired by the accused persons and he was later treated at JUTH, Plateau State.
6) As a result of the superior fire power of the soldiers, the accused persons were arrested together with their weapons and taken to the police Stations.
7) The weapons were registered as Exhibits and tendered before this Honourable Court and admitted as Exhibits.
The following facts are found based on the evidence of the prosecution witnesses whose pw2 and pw3 who were eye witnesses whose testimony I believe and which were not discredited during cross-examination, there is also no evidence challenging their testimony.
The learned trial judge going further stated thus:-
“Also, the Extra – Judicial statements of the accused persons revealed an admission that the accused persons were wielding the various weapons tendered as Exhibits at the time of their arrest.
As against all these, there is the evidence of DW1 which I do not believe for various reasons.
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His testimony did not follow a natural flow and contradicts itself. It looks more like a concocted story and in some respect corroborates the evidence of PW2 and PW3. Now on cross-examination, the DW1 stated that they were surrounded by about 2000 Biroms men yet 16 out of 17 of them escaped. Their escape per his evidence was that he asked everybody to find their way escape yet his evidence show that they were later gathered together, armed and they had their cows which they were protecting with the weapons found on them. He purported (sic) that the attack on them at their homes was sudden yet; they had found time to sent away their wives and children before the attack. It is unbelievable that out of the 2000 Biroms men who were apparently attacking them, none were found by the soldiers about the period when that accused persons were arrested,”
Tackling specifically the Count 1, the Court of first instance stated as follows:
“I agree that in the offence of conspiracy the men’s rea is not easy to locate as it is mostly, if not invariably,
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buried in secrecy therefore, the actus reus of the offence is easier to locate so that an inference of conspiracy can be drawn there from.
Now the circumstance of this case as per the fact found is that:
1) The accused persons per the evidence of DW1 know of an impending attack by the Biroms, apparently they were almost immediately attacked.
2) They subsequently armed themselves with dangerous weapons.
3) There is eye witness account from the 2nd and 3rd PW that the accused persons were so armed. In fact the evidence of the PW2 and PW3 which I believe is that they shot at the soldiers. Even though by the extra Judicial statements of the accused, they stated that they were armed for their protection. I believe that by their action they were out to commit an unlawful purpose or they had already done so.
They, therefore had an opportunity to meet together to agree to commit an unlawful purpose. The matter is more convincing given how close to the place where they were arrested to burnt houses where people were killed. From the conduct of the accused persons it can be inferred that they conspired to commit an unlawful purpose and I hereby draw that inference.<br< p=””
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The Accused persons are therefore guilty as charged in Count 1.”
In respect to count II which is the offence of illegal possession of firearms, it is necessary to clarify that only five of the accused persons, 1st, 4th, 7th 11th and 12th were charged and convicted being in possession of Dane guns. The findings of the learned trial judge are found at pages 109 and 110 of the record thus:
“Here again the evidence against the accused persons in Count II is overwhelming:
1) The accused persons in count II in their Extra; Judicial Statements to the Court admitted being in possession of fire arms.
2) Vide the evidence of PW2 and PW3 the fire arms were recovered by them.
3) PW1 stated that at the situation the accused persons under Count II identified the weapons as theirs.
4) DW1 testified that infact those weapons were in the possession of the said accused persons.
5) Exhibit B the Ballistic Report shows that the weapon were fire arms recently used.
6) The accused persons, in their defence have not proffered any evidence to show that they have license to be in possession of the firearms, the onus is on as
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person in possession to show that they are licensed. I reject the claim by the accused persons that they were holding the guns for their self-protection. That is not a defence under Section 518 (5) of the C.P.A.
In all, the circumstances the prosecution has proved the offence as charged against the 1st, 3rd, 5th, 8th, 11th, 13th, and 14th accused persons beyond reasonable doubt.”
Coming to Count III, the learned trial judge as seen, at pages 177 to 119 made the following findings and conclusion, viz:
“In our case under consideration, there is ample evidence that the accused are 15 in number going together and with Dame guns, bows and arrows, catapults and other weapons within the vicinity of a place where damage has been done to property and people killed there is no doubt that such conduct is to say the least calculated at instituting fear on members of the public or a particular segment thereof or to intimidate such people. Also, possession of such dangerous weapon is an offence under the Law more particularly Section 5 (1) of the Firearms Act, More particularly at a time there was crisis in Jos metropolis and Plateau state in general.
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At least as the Act provides, the conduct of the 15 accused persons qualifies as an attempt to intimidate people or put people in fear as prescribed under Section 46 (a) (ii) which defines terrorism. Black’s Law Dictionary, 8th Edition by Brayan Garner at page 137 defines attempt to mean:
“The act or an instance of making an effort to accomplish something…” An over act that is done with the intent to commit a crime but that fails short of completing the crime….
The accused person armed for their self-protection in the way they were, suggests that they have intended to intimidate or cause fear to the members of the public or a segment thereof. More so, when there is eye witness evidence of the PW2 and PW3 which I believe that the accused person were carrying those weapons and actually shot at the soldiers and caused to one of the soldiers injury. In the circumstance, the argument of defence counsel that the accused persons were not actually caught shooting and killing anybody is inconsequential so long as their disposition is capable of constituting fear to members of the public or an attempts so to do.
Also, Exhibit B the Ballistic report
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shows that the guns were loaded and some had been fired, contrary to the argument on the defence counsel. It does not matter who actually fired or who used what instrument so long as the accused persons went together, they are caught by the provision of Section 15 (2) which actus reus requires that a person participates or facilitates…..
This provision together with Section 8 of the Criminal Code inculpates all the accused persons and I agree with the argument of the prosecuting counsel in this regard.”
From the record from which the various testimonies of the prosecution witnesses are on display, the extra-judicial statement of the appellant, it is clear that the evaluation of evidence and ascription of probative value to those pieces of evidence which are within the primary functions of that Court of first instance which saw, heard and assessed the witnesses as they testified in the witness box. This position of the trial Court albeit privileged and exclusive to the trial Court and cannot be ceded to an appellate Court however high, the trial Court in the case at hand showed mastery of its bounden duty and which assignment it carried out commendably.
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It is therefore not surprising that the Court of Appeal in its appellate function of reviewing what the trial Court did, of course armed with the documentary evidence of what had transpired at the trial found it difficult to interfere or upset what had happened at the first instance and so in its evaluation of the available material accepted that the learned trial judge had acted on very firm ground not outside what was before him. This later situation is what has produced the concurrent findings before this Court. See Okon Iko v The State (2001) 14 NWLR (Pt. 732) 221 at 225; Okafor v Idigo III (1984) 6 SC 1 at 36; The Registered Trustees of the Apostolic Faith Mission & Anor v James & Anor (1987) 2 NWLR (Pt.61) 556 at 567.
The position of the appellant that his defences were not taken into consideration by the two Courts below and that the trial Court had even gone to pick and choose which part of the evidence of the defence to believe and which to cast aside. It is indeed trite that a Court must consider all the defences open to the accused including even that which accused has not raised or proffered.
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That principle however cannot be applied in a vacuum as the defence or defences must align with facts available to the Court. It cannot be said that once an accused asserts that a particular defence avails him the Court is obligated to granting that wish without a backing by evidence acceptable, cogent and showing to demolish the version of the transaction as proffered by the prosecution. I place reliance on the cases of Ahmed v The State (1999) 7 NWLR (pt. 612) 641 at 681; Akpabio v The State (1994) 7 NWLR (pt. 359) 635 at 671.
As I had earlier alluded to the concurrent findings and conclusion of the two Courts below, the question that I must answer at this level is whether there is justification upon which I can interfere with those findings of fact. This question which must be answered advisedly bearing in mind the general principle that where there are concurrent findings of fact by the trial Court and the Court below such as in the instant case, the Supreme Court is not likely to disturb such findings which it can only do where those findings are perverse or a miscarriage of justice has taken place whereby this Court can take the stand of intervention or interference
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with the said findings. A reference to earlier decided cases of this Court along those lines would clear the point. See Ude v Chimbo (1998) 12 NWLR (Pt. 577) 169 at 186-187 and 194; Woluchem v Gudi (1981) 5 SC 291.
For effect see the case of: Adegoke v Adibi (1992) 5 NWLR (Pt. 242) 410 at 427 where this Court held per Wali JSC that:
“Where the trial Court has failed to properly evaluate the evidence before it as a result of which it reached a decision which is perverse, as in this case, the Court of Appeal has a duty, by way of rehearing, to evaluate as if it were the trial Court the evidence that has been adduced…… The Court of Appeal should not shrink from the task of such evaluation or be inhibited therefrom just because it is an appellate Court. (Emphasis Supplied)
In the case of Nneji v Chukwu (1996) 10 NWLR (pt.478) 269 at 278 this Court also held:
“A Court of Appeal does not easily disturb the findings of facts of a trial judge who had the singular opportunity of listening to the witnesses and watching them perform. It is settled law, however, that such findings of facts or inferences from time to time may
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be questioned in certain circumstances.” (Emphasis supplied).
In the case of Agbomeji v Bakare (1998) 8 NWLR (Pt. 564) 1 at 19 this Court also said the same thing when it held thus:
“True enough, this Court does not readily interfere with concurrent findings of Courts below. See Kale v Coker (1982) 12 SC 252; Lokoyi v Olojo (1983) 2 SCNLR 127; Ojomu v Ajao (1983) 2 SCNLR 156; Ibrahim v Shagari (1983) 2 SCNLR 176. As concurrent finding of fact under consideration appears not to flow logically from the other findings made by the trial judge. I must hold that finding is perverse and I must consequently set it aside.”
Applying those principles to the case in hand and answering the poser whether in the light of those concurrent findings this Court can interfere, my answer is that those authorities espousing the position of the law on what an appellate Court faced with concurrent findings must be guided by do not aid the appellant rather they go to solidify the stance of the respondent as this Court has no business interfering since those findings are borne out of the record being overwhelming which compared with the feeble defence laid out
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by the appellant leaves the Court no option than to hold that the prosecution effectively proved its case on the three count charge beyond reasonable doubt. See Ben v The State (2006) 4 FWLR (Pt. 345) 7507 (SC); Onwuama v Ezeokoli (2002) 2 SCNJ 271; Amusa v The State (2003) 1 SCNJ 518; Ubani & 2 Ors v The State (2003) 18 NWLR (pt. 851) 247;Akinkugbe v. Ewulum Holdings Nigeria Ltd. (2008) 12 NWLR (Pt.1098) 375 at 398-399.
From the foregoing and the better reasoned lead judgment, I see no merit in this appeal which I too dismiss.
I abide by the consequential orders made.
JOHN INYANG OKORO, J.S.C.: I was obliged in draft a copy of the judgment of my learned brother, Sidi Dauda Bage, JSC just delivered. His Lordship has admirably resolved all the salient issues submitted for the determination of this appeal. Both the reasoning and the conclusion that this appeal is devoid of merit accord with mine.
Accordingly, I adopt the said lead judgment as mine as I also dismiss this appeal. I affirm the judgment of the lower Court in the circumstance.
Appeal Dismissed.
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AMIRU SANUSI, J.S.C.: I was privileged to read in draft form, the judgment just delivered by my learned brother Bage JCS.
His Lordship had adequately treated all the salient issues raised in the appeal in arriving to the conclusion that this appeal is devoid of any merit. I am at one with such reasoning and conclusion and shall therefore also dismiss the appeal for being meritless.
It is also clear that there exist concurrent findings of the two lower Court confirming the culpability of the appellant in the commission of the offences charged. Since such concurrent findings are far from being perverse or have not been shown to contain any misprehension of facts or misapplication of procedural or substantive law, this Court has no business interfering with or disturbing such finding. See Arowolo vs Olowookere & Ors (2011)11-12 SC (pt 11) 98; Ochiba v State (2011) 12 SC (pt. 11) 79.
In the result, I also do not see any merit in the appeal and as a corollary I accordingly dismiss it and affirm the Judgment of the lower Court which earlier also affirmed the decision of the trial Court. Appeal dismissed.
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Appearances:
M. Nurudeen Esq. with him, Haruna Ibrahim Esq. and D. Z. Dzege Esq.For Appellant(s)
Charles Ihua-Maduenyi Esq.For Respondent(s)
Appearances
M. Nurudeen Esq. with him, Haruna Ibrahim Esq. and D. Z. Dzege Esq.For Appellant
AND
Charles Ihua-Maduenyi Esq.For Respondent
