MALACHI ELISHA BROWN & ANOR v. THE STATE
(2011)LCN/4620(CA)
n The Court of Appeal of Nigeria
On Monday, the 13th day of June, 2011
CA/A/135/C/2003
RATIO
ISSUES FOR DETERMINATION: WHETHER ISSUES FOR DETERMINATION MUST BE TIED TO THE GROUNDS OF APPEAL
In the 1st appellant’s brief containing five (5) issues were distilled for determination but not tied to the grounds in the initial notice of appeal nor the additional grounds of appeal. When a notice of appeal is filed containing grounds of appeal it behoves on the counsel that settled briefs to argue issues distilled for determination from the grounds of appeal to tie them to each ground of appeal. I am aware that the recent attitude of the Apex Court is to avoid too much adherence to technicalities, however due diligence to observance of established practice should not be taken for granted or neglected in the quest for justice. Parties do not argue grounds of appeal. It is the Issues distilled that are argued in the brief. This underscore why it is imperative that issues distilled have explicit nexus to the grounds of appeal. Thus avoid speculation and show clearly the grounds that have been abandoned. I notice equally that the respondents brief contains five issues for determination. Each not tied to any ground. This is most inappropriate in brief writing where issues are not indicated to come from any of the grounds in the notice of appeal they would be at large and liable to be struck out. See Mark vs. Eke (2004) 1 SC (pt.11)1. PER REGINA OBIAGELI NWODO, J.C.A
INTERFERENCE WITH THE FINDINGS OF THE COURT: CIRCUMSTANCE IN WHICH THE APPELLATE COURT WILL INTERFERE WITH THE FINDINGS OF FACT MADE BY A TRIAL COURT
The law is settled that findings of fact made by a trial court are matters peculiarly within its jurisdiction and are usually presumed to be correct unless an appellant satisfactorily proves that they are wrong. The reason is obvious. The trial court saw the witnesses and heard them testify and unless the findings are perverse or unsupported by credible evidence the court will not interfere with them. The Supreme Court in a catalogue of cases has set out the settled law. In Ogunzee vs. the State (1998) 2 – 4 S.C.N.J 226 Iguh J.S.C at Page 242 said: “It is a basic principle law that the evaluation of evidence and the ascription of probative value to such evidence are the primary functions of a court of trial which saw, heard and assessed the witnesses while they testified before it. The trial court has the exclusive jurisdiction on matter of appraising evidence and ascribing probative value to the evidence of witnesses whom it had the opportunity of seeing, hearing and observing while in the witness box Where a court of trial unquestionably evaluates the evidence and justifiably appraises the facts and arrives at a conclusion on the credible evidence, the appellate court will not interfere with such findings of fact nor is it the business of such appellate court to substitute its own views of the facts for those of the trial court. What the appellate court ought to do is to scrutinize the record carefully and find out whether there is evidence on which the trial court could have acted. Once there is such evidence on record from which the trial court arrived at its findings of facts, the appellate court cannot interfere with such findings.” See Adelumola vs. the State (1988) 1 NWLR (Pt.73) 683 Therefore, the appellate court may interfere with such findings in circumstances where the trial court did not make a proper use of the opportunity of seeing and hearing the witnesses at the trial or where it drew wrong conclusion from accepted credible evidence or where it took an erroneous view of the evidence adduced before it. PER REGINA OBIAGELI NWODO, J.C.A
FAIR HEARING: WHEN IS A HEARING SAID TO HAVE BEEN FAIR
A hearing therefore can only be fair when all parties to the dispute are given a hearing or opportunity to be heard. PER REGINA OBIAGELI NWODO, J.C.A
DUTY OF THE COURT: WHETHER IT IS THE DUTY OF A COURT DISCOVERING FACTS WHICH ORDINARILY OUGHT TO HAVE BEEN RAISED DURING TRIAL OR WHICH THE ATTENTION OF THE PARTIES HAVE NOT BEEN DRAWN TO
A trial judge is not to investigate an exhibit that is, discovering facts which ordinarily ought to have been raised during trial or which the attention of the parties have not been drawn to. The court is still at liberty to evaluate such documentary evidence admitted. See Arabambi v. Advance Beverages Ind. Ltd 92006) at FWLR (pt.295) 581 S.C. WAB Ltd v. Savannah Ventures Ltd. (2002) FWLR (Pt.112) 53 at 72 SC; Damina v. State (1995) 8 NWLR (pt.415) 513. PER REGINA OBIAGELI NWODO, J.C.A
EXPERT OPINION: CIRCUMSTANCE WHERE OPINION OF EXPERT WILL BE UNNECESSARY
… if on the proven facts a judge can form a conclusion without help, then the opinion of an expert is unnecessary. The opinion of an expert is necessary where the expert skilled in a particular matter can furnish the court with scientific or other information of a technical nature that is likely to be outside the experience and knowledge of the judge. Furthermore where an expert evidence reasonably falls within the knowledge and experience of the judge, an expert need not be called. See A.G Federation vs. Abubakar (2007) 10 NWLR (Pt.1041) 1 SC SP DC vs. Farah (1995) 3 NWLR (Pt.382) 148 CA. PER REGINA OBIAGELI NWODO, J.C.A
JUSTICES
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
PAUL ADAMU GALINJE Justice of The Court of Appeal of Nigeria
REGINA OBIAGELI NWODO Justice of The Court of Appeal of Nigeria
Between
1. MALACHI ELISHA BROWN
2. EMMANUEL IHEAKO Appellant(s)
AND
THE STATE Respondent(s)
REGINA OBIAGELI NWODO, J.C.A (Delivering the Leading Judgment): On grant of leave to the Federal Attorney General as complainant to prefer criminal charges against the accused persons, the first appellant Mr. Malachi Elisha Brown and the second appellant Mr. Emmanuel Iheako were arraigned together as accused persons on the 24th of April, 2001 before the High Court of the Federal Capital Territory in suit NO. FCT/HC/CR/29/2000 on a four count charge which read thus:
COUNT 1
That you Malachi Elisha Brown ‘M’ of No 20 Station Road, Port- Harcourt and Emmanuel Iheako ‘M’ of Bwari Town Abuja on or about 8th December, 1999 at the Nigerian Law School Bwari Abuja in the Abuja Judicial Division agreed to do an illegal act to wit fraudulently altered the following forms: (1) Council of Legal Education application for admission 1993/94 form AI; (2)
Council of Legal Education Application for call to the Nigeria Bar., 1994 form CLE/BB/1 for 1994; and (3) Council of Legal Education Application for call to the Nigerian Bar 1995 form CLE/BB/I for 1995 which are in Malachi Etisha Brown’s student personal file with the Nigerian Low School and you thereby committed on offence punishable under section 97 of the Panel Code.
COUNT 2
That you Malachi Elisha Brown ‘M’ of No. 20 Station Road, Port-Harcourt and Emmanuel Iheako ‘M’ of Bwari Town, Abuja on or about 8th December 1999 at the Nigerian Law School Bwari Abuja in the Abuja Judicial Division did fraudulently alter the Council of Legal Education – Application for admission for 1993/94 form A1 which is in Malachi Elisha Brown’s name in his personal student “file with the Nigerian Law School and you thereby committed on offence punishable under section 364 of the Panel Code and triable by this court.
COUNT 3
That you Malachi Elisha Brown ‘M’ of No. 20 Station Road, Port-Harcourt and Emmanuel Iheako ‘M’ of Bwari Town, Abuja on or about 8th December, 1999 at the Nigerian Law School Bwari Abuja Judicial Division did fraudulently alter the council of Legal Education Application for call to the Nigeria Bar 1994 form CLE/BB/1 for 1994, which is in Malachi Elisha Brown’s name in his personal student file with the Nigeria Law School and you thereby committed on offence punishable under section 364 of the panel Code and triable by this court.
COUNT 4
That you Malachi Elisha Brown ‘M’ of No. 20 Station Road, Port- Harcourt and Emmanuel Iheako ‘M’ of Bwari Town, Abuja on or about 8th December 1999 at the Nigerian Law School Bwari Abuja in the Abuja Judicial Division did fraudulently alter the Council of Legal Education Application for call to Nigeria Bar 1995 form CLE/BB/1 for 1995, which is in Malachi Elisha Brown’s name in his personal student -file with the Nigerian Law School and your thereby committed on offence punishable under section 364 of the Panel Code and triable by this court.
The prosecution in prove of the charge called eight witnesses. At the close of the prosecution case, the defence made a no case submission and the learned trial judge in a considered ruling overruled the submission. Each of the accused persons testified and called one expert witness. At the conclusion of the evidence of witnesses, the written addresses of counsel were adopted and in a reserved and considered judgment delivered on 3rd of March, 2003, the trial court convicted each of the appellants on the four count charge of conspiracy and fraudulent alteration of three different forms in the students file in the Nigerian Law School. Each of the accused persons (now
appellants) were sentence to 6 months imprisonment on the 1st count of conspiracy and four years imprisonment on each of the remaining three counts of fraudulent alterations.
Dissatisfied with the decision of the trial court, the first appellant filed an initial notice of appeal on 10/03/2003 at pages 162 – 164 of the record.
The 2nd appellant’s amended notice of appeal filed on 16/06/04 contained 9 grounds of appeal. The 1st appellant initial notice of appeal filed on 24/03/03 contained 2 grounds of appeal. He later filed amended additional grounds of appeal on 03/06/04 containing 8 grounds of appeal.
I will briefly state the facts as garnered from the record of appeal. On 7th December, 1999 the first appellant went to the Nigerian Law School according to him to obtain a reference letter for PhD programme he intends to pursue at the University of Port Harcourt. The prosecution’s version is that when 1st appellant arrived at the Law School he met PW2 and requested for his reference letter from the Law School. He was asked to pay the official fee for the reference letter which he paid for. The reference letter was processed and given to him that same date. The 1st appellant after collecting the reference letter informed PW2 that the request for reference letter was not what necessitated his coming to the law school but his need to have someone help him either remove his admission form and call to bar sponsorship forms or alter the two columns where he had inscribed “No” and change same to ‘Yes’. The PW2 looked at the two columns and both bear “No” respectively, he told 1st appellant that it is a criminal act and he will not assist him. The first appellant then left PW2 and met the second appellant. The second appellant on the 8th of December 1999 went to PW2 and PW3 office and requested for the personal file of the 1st appellant. On enquiry why he wanted the file he told them that the first appellant was going to bring his application for reference letter and he will process same for him. They informed the 2nd appellant that the reference letter has already been processed and handed over to the first appellant on 07/12/1999. The second appellant still decided to register and collect the personal file of the 1st appellant. He did not return the file. PW2 was curious he informed PW3 of the request made by 1st appellant to alter the columns in his file and he refused and that the file collected by the second appellant had not been returned. The file was retrieved from the 2nd appellant when PW2 and PW3 observed the alteration. He was queried and when he could not give any tangible reason for the personal file of the 1st appellant he collected since he had already collected the reference letter, he apologized to the Nigerian Law School and was dismissed from the services of the school and his matter forwarded to the police.
The 1st appellant’s defence is that whilst at the Nigerian Law School Bwari waiting for the academic reference letter to be processed, pW2 a messenger who pretended he was acting on the instructions of the director general and the secretary council of Legal Education demanded from him a bribe of N20, 000.00 (Twenty Thousand Naira) only as a condition for the urgent processing of the letter. He made efforts to see the Director General of the Nigerian Law School and Secretary, Council of Legal Education without success to confirm the unlawful demand by pw2.
The 1st appellant reported to 2nd appellant who told him that if pW2 fails to process the letter he should come back to him and he will also report him to the appropriate authorities. PW2 insulted the 1st appellant and threatened to deal with him. He wrote a letter reporting PW2 to the director general. The PW2 then framed up the allegation that 1st appellant had asked him to alter the bar application forms and admission form by changing the word ‘No’ to ‘Yes’. The appellants were arrested and arraigned before the High Court and they both pleaded not guilty. They were each convicted and sentenced. Hence the two notices of appeal filed by the parties. In line with the practice and rules of this court parties filed and exchanged written briefs of argument. At the hearing of the appeal on the 15th of March, 2011 the learned senior counsel S.I Ameh for the 1st appellant adopted the first appellants brief filed on 11/04/2007 and deemed properly filed on 25/02/2009 and the reply brief deemed properly filed on 15/03/2011. He urged the court to allow the appeal.
Learned counsel for the 2nd appellant Mr. Okey Uzoho adopted the 2nd appellants amended brief filed on 15/01/2010 and deemed filed on 23/03/2010. The reply brief in response to the respondent brief was also adopted and he urged the court to allow the appeal. The learned counsel for the respondent T.A. Gazali adopted the respondents brief filed 23/06/2010.
He urged the court to dismiss the appeal.
In the 1st appellant’s brief containing five (5) issues were distilled for determination but not tied to the grounds in the initial notice of appeal nor the additional grounds of appeal. When a notice of appeal is filed containing grounds of appeal it behoves on the counsel that settled briefs to argue issues distilled for determination from the grounds of appeal to tie them to each ground of appeal. I am aware that the recent attitude of the Apex Court is to avoid too much adherence to technicalities, however due diligence to observance of established practice should not be taken for granted or neglected in the quest for justice. Parties do not argue grounds of appeal. It is the Issues distilled that are argued in the brief. This underscore why it is imperative that issues distilled have explicit nexus to the grounds of appeal. Thus avoid speculation and show clearly the grounds that have been abandoned. I notice equally that the respondents brief contains five issues for determination. Each not tied to any ground. This is most inappropriate in brief writing where issues are not indicated to come from any of the grounds in the notice of appeal they would be at large and liable to be struck out.
See Mark vs. Eke (2004) 1 SC (pt.11)1.
Inview of the fact that this is a criminal appeal, I am constrained to look at the issues as distilled for determination and make sure it has nexus to the grounds of appeal. Since they all arise from the grounds of appeal, I will adopt these issues in the consideration of the 1st appellant appeal. The issues formulated in the first appellants brief read thus:
“(a) Whether the learned trial court denied the 1st Appellant the right to fair hearing within section 36(1) of the Constitution of the Federal Republic of Nigeria, 1999?
(b) Whether the judgment of the learned trial court was perverse, bias and tainted with irregularity?
(c) Whether there was a proper evaluation of the evidence before the learned trial court to warrant the findings of facts made in the judgment of the learned trial court
(d) Whether the circumstantial evidence adduced by the prosecution at the trial in the court below was strong, sufficient and compellable enough to point inevitably or irresistibly to the appellant as having committed the offence for which he was charged?
(e) Whether the prosecution proved its case (or the charge) beyond reasonable doubt?”
Under issue one, whether the learned trial judge denied the 1st appellant the right to fair hearing within section 36(1) of the 1999 constitution. It is the submission of the learned senior counsel that the trial court denied the appellant the right to fair hearing within section 36(1)of the constitution of the Federal Republic of Nigeria 1999 for the reason that there is nowhere in the evidence of the prosecution witnesses that they alleged they saw the 1st appellant with the 2nd appellant but that the learned trial judge formulated its own evidence suo motu and resolved same on its own convicting the 1st appellant without affording him any fair hearing either to cross-examine the prosecution witness or to defend the formulated allegation, thereby occasioning a miscarriage of justice in his judgment at //. page 145 lines 45 – 49 of the record.
It is his further submission that at page 145 lines 20 – 31 of the record the learned trial court in its judgment suo motu initiated and introduced new set of evidence on allegation not canvassed by the prosecution and without giving the 1st appellant the opportunity of fair hearing to cross-examine the prosecution or defend such new set of evidence initiated by the learned trial judge.
The learned senior counsel contends that the prosecution witnesses did not lead any evidence concerning or relating to the tippex stain at page 35 of exhibit P1 and when the trial court raised it suo motu it failed to allow the 1st appellant to cross examine or to afford him the opportunity of fair hearing thereby occasioning a miscarriage of justice. He referred to the following cases: Ogiamien v. Ogiamein (1967) NSCC 190, 192 (1967) NMLR 245. Tavershima and Anor v. Agber Hueze and Others (2001) 5 NSCQR 342. Mojekwu v. Iwuchukwu (2004) 8 SCM 129 at 132 Chief Mene Kenon and 2 Other v. Chief Albert Tekan (2001) FWLR (pt.70) Pg.1660
It is his further submission that the procedure adopted by the trial court amounts to both procedural and substantive unfairness.
He cited Sterling Civil Engineering v. Mehmood Yahaya (2005) 5 SCM Page 181, State v. Gwanto (2000) FWLR (Pt.30) Page 2590 Ratio 13 – 14 It is his contention that the issue of tippex stains on pages 34 and 35 of exhibit P I should have been raised by the prosecution and the attention of the 1″ appellant should have specifically been drawn regarding the tippex stains.
He contends further that the act of the trial court to raise the issue suo motu amounts to an investigation which is not function of the court and that it is not the duty of the court to decide on issues not raised by the parties. It is his submission that failure of the trial court to allow the 1st appellant to cross examine on the issue of tippex stain cannot qualify as fair hearing guaranteed under the constitution.
The 2nd appellant’s amended brief of argument contains five issues for determination. Like I earlier noted the issues are not tied to the grounds of appeal. They are similar to the issues distilled by 1st appellant but because the issues are formulated from a separate notice of appeal, I reproduce them hereunder:
“(i) Whether the appellant was denied fair hearing by the Honourable trial court.
(ii) Whether the evidence relied upon by the trial Court in convicting the Appellant for conspiracy was cogent and compelling.
(iii) Whether the trial Court was right to have placed such heavy reliance on the evidence of PW2 and PW3, who were tainted witnesses, in convicting the Appellant
(iv) Whether the trial Court was right to hove convicted the appellant on counts 2, 3 and 4 despite its definitive finding that the alterations were made by the co-accused.
(v) Whether the trial Court was right to have convicted the Appellant for fraudulent alteration in counts 2, 3 and 4 of the charge on the basis of His Lordship’s personal opinion rather than on facts established by evidence.”
I will rely on these issues to determine the 2nd appellant appeal. The learned counsel for the second appellants contention under issue one is that there is nowhere in the evidence of the prosecution witnesses where it was alleged that the 1st and 2nd appellants were seen together committing the offence charged rather the learned judge supplied the evidence sao motu in its judgment and convicted on that basis without affording the appellant any opportunity to cross-examine the prosecution or defend himself with respect to the new set of evidence supplied by the trial court which occasioned a miscarriage of justice.
It is his contention that the trial judge embarked on a judicial expedition because what was in issue throughout the trial were the alteration on exhibit P1 not the tippex stains on page 35 of exhibit P1 but the trial court raised it suo motu and failed to give the appellant any fair hearing that is to either cross-examine the respondent or to defend himself on those issues of tippex stains. He argued the alteration made was in 1991 and that there is nowhere in the form where it stated the use of tippex was disallowed.
It is his submission that since the age of the document was in issue the prosecution failed to prove when the alteration was made either through cross-examination or by calling of expert witness. It is his submission that since the prosecution knowingly withheld the evidence that would have determined the age of the document and handwritings on exhibit P1 Section 149(d) of the Evidence Act applies.
Learned counsel urged the court to hold that the failure of the trial court to give the appellant the opportunity to cross-examine the prosecution or defend himself on the new issues raised suo motu and resolved by the court without affording the appellant a hearing was a violation of the appellants right to fair hearing and occasioned a miscarriage of justice to the appellant.
Several cases in paragraph 5.12 of 2 appellants brief have been referred to.
Learned counsel for the respondent in response contends that both appellants misconceived the finding of the court on page 145 lines 45 – 49.It is his contention that the evidence of the PW2 on page 27 affirms the finding of the court as a product of the record. He argued that the trial court did not say that the two accused persons were seen together but rather they were seen at short intervals.
On the issue of tippex learned counsel contends that legitimate inference drawn by the court from established facts was allowed. He referred to the testimony of DW2 and the 1st appellant under cross-examination. It is his submission that a court can draw inference from facts established. He referred to Ejiofor vs. the State (2001) 9 NWLR (Pt .718) Page 37 Learned counsel further contends though not conceding the issue was raised suo motu said that the 1st appellant is duty bound to establish that the finding on the issue is the sole reason for conviction. The 1st and 2nd appellant under their respective issue one raised similar questions. Basically three questions arises from their submissions, under issue one.
First is whether the learned trial judge made findings in his judgment (page 145 lines 45 – 49 of the record) not borne out of the record but based on his own facts raised suo motu.
Secondly, whether the inference drawn by the learned trial judge on the tippex on exhibit P1 is an issue raised suo motu for which parties had no opportunity to react to.
Thirdly, whether the prosecution should have called an expert witness to give evidence on the date the alteration was made and on the handwriting.
The answers to these three questions will determine Issue one on whether the trial court denied 1st appellant the right to fair hearing, within the provision of Section 36(1) of the 1999 constitution. The first two questions dovetail into the findings of the learned trial judge .The law is settled that findings of fact made by a trial court are matters peculiarly within its jurisdiction and are usually presumed to be correct unless an appellant satisfactorily proves that they are wrong. The reason is obvious. The trial court saw the witnesses and heard them testify and unless the findings are perverse or unsupported by credible evidence the court will not interfere with them. The Supreme Court in a catalogue of cases has set out the settled law.
In Ogunzee vs. the State (1998) 2 – 4 S.C.N.J 226 Iguh J.S.C at Page 242 said:
“It is a basic principle law that the evaluation of evidence and the ascription of probative value to such evidence are the primary functions of a court of trial which saw, heard and assessed the witnesses while they testified before it. The trial court has the exclusive jurisdiction on matter of appraising evidence and ascribing probative value to the evidence of witnesses whom it had the opportunity of seeing, hearing and observing while in the witness box Where a court of trial unquestionably evaluates the evidence and justifiably appraises the facts and arrives at a conclusion on the credible evidence, the appellate court will not interfere with such findings of fact nor is it the business of such appellate court to substitute its own views of the facts for those of the trial court.
What the appellate court ought to do is to scrutinize the record carefully and find out whether there is evidence on which the trial court could have acted. Once there is such evidence on record from which the trial court arrived at its findings of facts, the appellate court cannot interfere with such findings.”
See Adelumola vs. the State (1988) 1 NWLR (Pt.73) 683 Therefore, the appellate court may interfere with such findings in circumstances where the trial court did not make a proper use of the opportunity of seeing and hearing the witnesses at the trial or where it drew wrong conclusion from accepted credible evidence or where it took an erroneous view of the evidence adduced before it. I have critically examined the judgment of the trial court delivered on 3rd of March, 2003 found at pages 125 to 147 of the record of appeal. The learned trial Judge at page 145 of the record of appeal said:
It is trite that where it is established that the right to fair hearing of a party was breached or denied during the conduct of any trial proceedings, such proceedings would be void and of no legal effect. Such denial is fatal to the judgment.
See Otato Sommonu (1987) NWLR (58) 587 at 605.
A hearing therefore can only be fair when all parties to the dispute are given a hearing or opportunity to be heard.
“The two accused person were seen by the PW2 on the 8th at short intervals one after the other in relation to Exhibit P1 when Exhibit P1 was retrieved from the 2nd accuser’s office, it was mutilated with the alterations the 1st accused had requested the effect for him which the PW2 declined to do.”
The PW2 in evidence at page 27 of the record said:
“The 1st accused come back the following morning and repeated the some request and I told him not to come to me again, that he should leave me alone. I told him it was a dangerous to do to alter those documents that it is implicating. I kept the matter to myself I did not tell anybody. After 30 minutes to one hour, the 2nd accused came and requested for the file that he wanted to file some documents and that I should release the file to him. I recorded them in our movement register and he signed and collected the file and left but did not return it.”
Clearly from the reproduced testimony of the PW2, the finding of the trial court that the appellants saw the PW2 at short intervals one after the other arose from the evidence of the PW2. PW2 stated that after 30 minutes to one hour of seeing the 1st appellant the second appellant came to him for the 1″ appellant file.
The learned trial Judge use of the phrase short interval is not a deviation from the purport of the statement made by PW2 in evidence on the estimation of time. The learned trial judge did not find in his judgment that they appellants were seen together. I agree with the learned counsel for the respondent that the appellants misconceived the finding of the court. I really cannot appreciate how the learned counsel for the respective appellants can interprete the explicit statement of the trial judge where she used the phrase “one after the other” to mean being seen together. The word interval as described in the oxford advance learner’s dictionary means “a period of time between two events” it is a short period during which something different happens from what is happening the rest of the time. The trial court’s finding that the two appellants were seen by the PW2 at short intervals was not raised suo motu it was based on the testimony of PW2. The second question arose from the submission of the counsel for the 1st and second appellant wherein they contended that the learned trial judge suo motu introduced new set of evidence not canvassed by the prosecution and resolved same without giving the appellants the opportunity to be heard.
That is the issue of tippex on page 35 of the file. The learned trial judge made the following findings on exhibit PI:
“Upon a careful perusal of exhibit PI, f saw on page 35 two clear and conspicuous stains of tippex in the same shape as those on page 34 where the 7” accused person admitted he had altered. When the two pages, that is page 34 and 35 are put together, the stain on page 35 fits perfectly into the tippex marks on page 34, the stain one page 35 is exactly on the place where page 34 of Exhibit PI touches page 35 when the two pages are closed. The obvious and irresistible inference to be drawn is that the use of the tippex on page 34 was done while the two documents had already been filed. The stain on page 35 must necessarily be as it is because the tippex which was
applied stealthily by the two accused persons had not dried up when the file was closed to conceal the act. In making this vital observation, I am guided by the decision of the Supreme Court in the case of W.T Ejuetani V.I. MFS. Benedecta.
2. A.O Akaba (supra) per Ejuwunmi (JSC), which held that documents tendered primarily for a purpose could become available for full consideration by the court.”Exhibit P 1 tendered and admitted in evidence is the personal file of the 1st appellant with the Nigerian Law School. This exhibit P1 with pages 1 – 125 were tendered by the PWI Dr. Kole Abayomi, the Deputy Director – General and head of the Lagos Campus at that time. The defence did not object to the document when it was admitted by the trial court on 25/06/2001.
What is the duty of the court in relation to documents tendered in evidence?
In Buhari vs. INEC (2008) 19 NWLR (Pt.1120) 246 SC at page 392 paragraph E-H Tobi, J.S.C said:
“I entirely agree with the court of appeal as all the documents were tendered in evidence, parties were free to comment on them including drawing inferences and conclusions at the address stage.”
A trial judge is not to investigate an exhibit that is, discovering facts which ordinarily ought to have been raised during trial or which the attention of the parties have not been drawn to. The court is still at liberty to evaluate such documentary evidence admitted. See Arabambi v. Advance Beverages Ind. Ltd 92006) at FWLR (pt.295) 581 S.C.
WAB Ltd v. Savannah Ventures Ltd. (2002) FWLR (Pt.112) 53 at 72 SC; Damina v. State (1995) 8 NWLR (pt.415) 513.The Pw2 was cross-examined on exhibit P1, PW3 in evidence said:
“We noticed there was tippex to change what was in the file before.”
This witness was cross-examined by the defence, generally but they failed to emphasis on the evidence in chief of PW3 on tippex. PW4 a legal practitioner and life member of Body of Benchers under cross-examination said:
“I am very certain that the tippex over which is put ‘Yes’ was not there when I signed the form. There is also another tippex with ‘No’ put on another tippex I said nothing about the other tippex because I was asked specifically about the tippex on 11(a), I was not referring to the tippex but the whole writing put in long hand were not there when I signed the form, tippex or no tippex Had I seen the tippex, I emphatically say yes, I would not have signed the form because the original con over which the tippex is place, I am always warned that where there is a tippex, it could be sinister, something is definitely wrong, I warn myself not to sign anything tippexed.”
Pw5 Hariat Balogun also a life Bencher under cross-examination said:
“I would not know that a line was left blank. I see some mark around the number that was tippex- This document on page 34 speaks for itself. I cannot see under the tippex-”
It is indisputable from the evidence adduced by the prosecution witnesses during cross-examination that the issue of tippex was raised and questions answered. The appellants cannot claim that the learned trial judge raised the issue of tippex as a new set of evidence. The learned trial judge had the duty to evaluate the documentary evidence tendered before the court.
The 1st and 2nd appellants cross-examined the PW2, PW3, PW4 and PW5 on exhibit P1 in particular reference to the columns in the form that was tippexed.
The grouse of the appellants counsel appears to evolve on the use of word “conspicuous stains” of tippex, ineffect the description of the tippex on the form. This statement is not worth more than an observation. The question of whether there is a tippex is not in dispute, what is the crux of the prosecution’s case is that the alterations on all the forms were achieved with the tippex and it all happened after the form was signed by the benchers and submitted and filed in the 1st appellants personal file and that the alterations were done on the 8th of December, 1999 the date the 2nd appellant signed and collected exhibit P1 and not before the filling of the form. In effect before the admission of the 1st appellant to the Law School.
The trial judge was under a duty to examine exhibit PI and she made the observations set out in the judgment. This cannot be introduction of new evidence nor deprivation of opportunity for the appellants to cross-examine the witnesses. The 1st appellant likewise the 2nd appellant cross-examined the material prosecution witnesses on the point of tippex in exhibit P1 . This is not a scenario where the learned trial judge provided missing evidence in which he relied to convict the appellant nor is it a situation where evidence was provided behind the parties thus affecting the principle of fair hearing.
The observation made on a document during evaluation which is explicit and speaks for itself is not substantial to result in failure of justice. The inference drawn by the trial judge on the mark on the two pages tippexed is that it was done in a hurry and this was based on her findings in respect of the documentary evidence which all parties during trial had access to rely on and ask questions or challenge its credibility.
One must not underestimate the duty of the trial judge in evaluating evidence before him. The court once a document is admissible must examine and peruse carefully the documents and oral evidence adduced before him.
In Arabambi vs. A.B. Ind. Ltd. (2006) 8 WRN SC 1
The Supreme Court Mukhtar JSC held:
“A trial judge whilst evaluating evidence is at liberty to examine and peruse most carefully documents and oral evidence before him. That is port of his judicial function, and if he fails to do so then he is failing in this duty. In fact even where necessary a Judge ought to comb any crucial evidence before him with the finest tooth comb to ensure that the credibility and reliability of the evidence is ascertained and applied towards the just determination of the case.”
Documents tendered and admitted before the court are primary for the purpose of consideration in support of facts. They should be fully considered by the court. See Eiutani vs. Akaba (2002) FWLR (Pt.88) 955. A court is entitled to draw inference from admitted facts.
See Osazuwa vs. Edo State C.S.C (1999) 4 NWLR (Pt.597) 155.
It is my firm view that the trial court did not raise any new issue suo motu in its judgment and resolved same thereby denying the appellants of their right to defend. There is no way the observation of the trial court on the document as presented before the court on an issue at stake that is the tippex could have infringed the right to fair hearing of the appellant. The court did not raise issues not already raised and contested by the parties. The issue of tippex was clear on the document it cannot be said it was not contemplated.
It is the contention of the learned counsel for the second appellant that the prosecution should have called an expert witness to give evidence on the age of the tippex. It is not in every case that an expert witness becomes a material and vital witness. Such a witness is crucial, mainly in technical matters which are beyond the realm of the ordinary juryman’s experience in which the court will need help. I do concede to the position of the law submitted by the senior counsel for the appellant that the suppression of evidence in any trial be it civil or criminal amounts to miscarriage of justice that warrants the trial being nullified.
See Mohammed vs. the State (1991) 5 NWLR (Pt.192) 438 SC.
However the failure to call an expert witness cannot amount to suppression of evidence if in the light of other relevant and credible evidence before the court, they are compelling to prove the charge or establish the case. Furthermore where the evidence of an expert is or cannot be true, it should be rejected without much ado. That is where expert evidence is weighed against direct credible evidence.
See ELF Nigeria Limited vs. Sillo (1994) 7-8 NJ (Pt.1) 119 In addition, if on the proven facts a judge can form a conclusion without help, then the opinion of an expert is unnecessary. The opinion of an expert is necessary where the expert skilled in a particular matter can furnish the court with scientific or other information of a technical nature that is likely to be outside the experience and knowledge of the judge. Furthermore where an expert evidence reasonably falls within the knowledge and experience of the judge, an expert need not be called.
See A.G Federation vs. Abubakar (2007) 10 NWLR (Pt.1041) 1 SC SP DC vs. Farah (1995) 3 NWLR (Pt.382) 148 CA
In the instance case the learned trial judge ruled on failure to call expert witness when she held that the defence is entitled to rely on any defence that can help unfold their innocence. The learned trial judge is correct. The prosecution maintained that there was alteration. There is evidence of alteration. Either party is free to call expert witness on the age of the alteration. The defence conceded that an alteration was made at the time the form was filed but not in 1999 when 1st accused went to the law school for the reference letter. DWI testified on the handwriting on some of the exhibits. Exhibit D2b and D2c and D3a. The same witness DW1 described himself as a handwriting expert during his examination in chief and said:
“As a handwriting expert, it is possible to determine the age of a document. We can tell which hand written document was written before the other.”
DWI was a witness for the 1st accused and by his description as an expert, the defence should have extracted all the information they needed as regards the age of document or the alteration. I agree with the learned trial judge that the defence should have lead evidence through their expert witness on when the alteration was made. Section 149 of the Evidence Act does not apply in the circumstance. The trial court found thus (page 142):
“from the evidence adduced both by the prosecution and defence witness, we do not strictly need expert to tell us that the alterations found in exhibit P1 pages 1-4, 29-30 and 33-34 were made at different times by the same person who kept repeating the same mistake over a period of three years.”
There was no need for the prosecution to call an expert witness.
From the forgoing I hold the learned trial judge did not raise new issues suo motu without affording the appellants the opportunity to be heard. The issue of tippex and alteration were raised and evidence led. The observations made by the trial court ex-facia on exhibit Pl cannot be a fresh issue. Exhibit PI was documentary evidence in support of facts. The trial judge could only appraise facts in the face of both oral and documentary evidence. The 1st and second appellants’ were not denied their right to fair hearing. I resolve Issue 4(a) against the 1st appellant and Issue one formulated by 2nd appellant is resolved against him.
Under Issue 4(b): Whether the Judgment of the learned trial court was perverse, bias and tainted with irregularity? It is the submission of the learned senior counsel that the trial court delivered its judgment at 7:30pm after keeping the appellants and their counsel waiting from 9.00am and without their respective consent which raises real likelihood of bias. It is his submission that the judgment of the learned trial court amounts to substantive unfairness as was decided in the Supreme Court case of Chief Kenon & 2 Other v. Chief Albert Tekam (2001) 7 FWLR (pt.70) Pg1660 at pg.1662-1664 ratios 1-6
Learned senior counsel reargued the issue of trial court raising new evidence on whether two appellant were seen together without giving the defence opportunity to react. This point I have earlier addressed under issue 4(a) of 1st appellants brief and issue one under 2nd appellant amended brief.
He urged the court to treat the conduct of learned trial judge in delivery the judgment at 7.30pm as sign of likelihood of bias. He cited the following cases in support of his contention that their judgment is perverse.
Irolo vs. Uka (2000 20 WRN 1 Page 43 at Page 55 ratio 7
Mini Lodge vs. NGEI (2007) 4 WRN Page 54 at Page 60
Learned senior counsel urged the court to apply the Interpretation Act to the records of the court.
The learned counsel has raised the question of whether delivering of judgment at 7.30pm by the trial judge is a conduct reflecting likelihood of bias. When is a judgment of a competent court regarded as perverse?
Generally a judgment of a court is said to be perverse when it runs counter to the evidence adduced before the court or where it has been shown that the trial court took into account matters which it ought not to have taken into account or shut its eyes to the obvious or when it has occasioned a miscarriage of justice.
See Aebomeii vs. Bakare (1998) 9 NWLR (Pt.564) 1 SC
State vs. Ajie (2007) 7 SC (Pt.1) 24
The learned senior counsel relied also on Irolo vs. Uka (2006) 20 WRN Page 43.
Where the Supreme Court set out grounds in which a decision is said to be perverse, I will take this grounds serially.
First is when the decision runs counter of the evidence. Having critically examined the documentary evidence and oral testimony of the witnesses, I hold firmly that the decision is not counter to the evidence lead. I had earlier held under issue 4(a) that the decision of the trial court was not based on issue raised suo motu by the court. That there was no new issue raised by the trial judge and determined without the response of the parties.
Second ground is whether the trial court took into account matters which it ought not to have taken into account. The trail court appraised and evaluated the evidence tendered before the court and the testimony of witnesses. The appellant has failed to show extraneous matters introduced by the appellant that could have occasioned a miscarriage of justice. The issue of the marks on the form from the tippex is not a new issue.
Third ground is whether a miscarriage of justice is occasioned by the judgment: A miscarriage of justice occurs when there are substantial errors in adjudication with the result that the party who relied on such errors may have judgment in his favour.
See Amadi vs. NNPC (2000) 6 SC (Pt.1) 66.The learned senior counsel contends that the Interpretation Act Cap 192 law of the Federation 1990 requires that words in a statute should be given their ordinary meaning and that the same interpretation be ascribed to the words contained in the judgment of the trial court.
The interpretation of words used in the judgment of a court does not need the importation of the Interpretation Act for its construction. The words of the trial judge are clear like I earlier stated. The phrase “short intervals” is explicit. The time PW2’s evidence is that after 30 minutes to one hour the first accused came to him the 2nd accused came and requested for the file. The period of 30 minutes to one hour is the interval. The learned trial judge is not constrained to use the same word as the witness as long as his summary of the testimony means same thing.
The learned senior counsel further contended that the delivery of judgment at 7.30pm is a conduct depicting likelihood of bias. There is no law that states that judgment cannot be read in open court by 7.30pm. It is in terms of convenience and consistency as regards seating hours that there is the usual rule of practice to seat in court at 9.00am. As regards when the court should stop proceeding, I am not aware of any rule of law that prescribed time to deliver judgment. The general practice is to stop sitting at the close of office time but there can be an exception. The complaint that judgment was delivered at 7.30pm is not a complaint arising from content of the judgment delivered.
The nature of likelihood of bias that will cause miscarriage of justice have equally not been established by the appellant. These are questions relating to facts on what time judgment was delivered and the impression created in the eyes of a reasonable man. The complaint that parties waited till 7.30pm from 9.00am relates to the inconvenience caused to the parties.
The learned senior counsel relied on the case of the Secretary vs. Iwo Central LG vs. Adio (Supra). The facts of that case are not apposite to the instance case. In that case the Honourable Justice Ige in the exercise of her judicial duty was merely to interpret a piece of subsidiary legislation which had been signed into law by her husband as chief executive of that state, when issue of likelihood of bias was raised. The Supreme Court held there was nothing in the facts of the case that would have disqualified Ige J. from sitting to adjudicate over the matter. The meaning ascribed to the phrase “real likelihood of bias” is relevant. ogundare JSC per:
“It means in my respectful view, a substantial possibility of bias and the test to be applied is based on the reasonable man apprehension of a reasonable man who is in full knowledge of the facts or circumstances and not that of a capricious and unreasonable man.”The appellants must show from proved circumstances that an inference can be draw on likelihood of bias. There is no suggestion that the learned trial judge had any personal or pecuniary interest in the case. I have not been able to identify any reasonable evidence suggesting that the judgment delivered at 7.30pm by the learned trial judge was based on interest. A whimsical suspicion on why was judgment delivered by 7.30pm will not suffice to hold there was likelihood of bias. I resolve issue 4(b) against the first appellant.
Issue 2 formulated in the 2nd appellants brief is whether evidence relied upon by the trial court in convicting the appellant for conspiracy was cogent and compelling.
This issue two will be considered with issue 3 which is on whether the trial court was right to have placed heavy reliance on evidence of PW2 and PW3 who were tainted witnesses. The two issues are related also to issue 4D and E in the first appellants brief and will all be considered together.
Learned senior counsel contends that the year or date of the alleged alteration in the form is material to the charge against the 1st appellant and the burden of proof is on the prosecution to show that the alterations were made on or about 8th December, 1999. It is his further submission that the prosecution failed to lead direct, cogent and compellable evidence that the alteration were made by the 1st appellant on the 8th December, 1999 with the 2nd appellant. Furthermore that there was no iota of evidence by the prosecution that the appellant and the 2nd accused were seen together on the 08/12/1999. It is his submission that the prosecution’s case is so riddled with suspicion that no reasonable tribunal could have convicted the 1st appellant on the evidence on record.
It is his further contention that even if the alleged alteration was made for the purpose of reflecting the true facts existing at the time of the alleged alteration, the alteration could neither be a forgery nor fraudulent. He contended that 1st appellant admitted alterations were made when he was filling the form but the prosecution failed to rebut that evidence nor establish that the 1st appellant directly or indirectly fraudulently altered the forms.
Learned counsel for the 2nd appellant submitted that the conclusions of the trial judge that the two appellants were together on 08/12/1999 to execute some common plan is erroneous and has no basis either in law or in the evidence. It is his contention that conviction of the appellant for conspiracy is based on mere suspicion as the court did not evaluate the evidence of the appellant and balance it with the testimonies of PW2 and Pw3 before coming to the conclusion of guilty.
It is his further submission that the evidence relied upon by the learned trial judge in convicting the appellant were based on evidence of PW2 and PW3 who have their own purpose to serve. It is his contention that a recourse by the Honourable trial court to the opinion of an expert like the one present in court DW1 for an ascertainment of the age of the alterations in Exhibit P1 would have cleared any doubts hovering over the alterations made. It is his submission that the lingering doubt that persist due to the neglect of the prosecution ensures to the benefit of the appellant.
Learned counsel submits that the bribery allegation against the PW2 and PW3 made by the first appellant is a criminal offence for which the party alleging is under a duty to prove beyond reasonable doubt. He then argued that since first appellant did not establish same the allegation of bribery is an afterthought as held by the court. It is his submission that none of the prosecution witnesses is a tainted witness.
He referred to oteki vs. AG Bendel state (1986) 2 NWLR (pt.24).
He further contends that the testimony of PW7 is not hearsay. Learned counsel submits that the inference to be drawn from the alterations that were made is that the change from ‘Not to ‘Yes’ were made at the same time in view of the circumstance presented.
I have read the reply brief in this appeal and I must state that the contents are not in line with the provision of the rules of court on what a reply brief should contain. Order 17 rule 5 of the old rules of the court of appeal 2007 now order 18 rule 5 of the Court of Appeal rules 2011 stipulates
that a reply brief shall deal with all new points arising from the respondents brief. The appellants reply brief should contain only the response on law to new points not facts. The 37 page reply brief of 1st appellant was a re-argument of the appeal. This is inappropriate. I have however scrutinized the reply to ascertain responses on new points.
The crux of the two issues formulated is whether the circumstantial evidence relied on by the trial court was sufficient to warrant the conviction.
Circumstantial evidence has been described as evidence of surrounding circumstances which by coincidence is capable of proving a proposition with the accuracy of mathematics.
See Akinmomu vs. the State (1995) 7 NWLR (Pt.406) 204.Therefore, in order to draw an inference of the accused persons guilty from circumstantial evidence, there must not be any other co-existing circumstance which would weaken or destroy such an inference of guilt. The State v. Edobor & Ors (1975) 9 – 11 SC 69 at page 76.
Niyi Akinmomu vs. The State (2000) 4 SC (Pt.1) Page 64.
The court can draw such presumption that is warranted so long as it is cogent and compelling as to convince a jury that on no rational hypothesis other than the inference can the fact be accounted for.
Mohammad vs. State (2007) 13 NWLR (Pt.10) 50 CA 186. Adio vs. State (1986) 2 NWLR (Pt.24) SC 581.
In Jua vs. State (2010) 1-2 SC 96 the Supreme Court Ogbuagu JSC said:
“It is now firmly settled that if the evidence adduced by the Prosecution (as in the instant case), was tested, scrutinized and accepted and conclusively points to the Appellant as the perpetrator of the crime, it is for the Appellant to rebut the presumption that he committed the murder of the Deceased or to cast a doubt on the Prosecution’s case by preponderance of probabilities.”
In the instance case there was no direct evidence that the second appellant altered the forms as charged the prosecution adduced circumstantial evidence. The learned trial judge relied on the circumstantial evidence adduced to convict the appellants. An accused person can be convicted of serious offence in the absence of direct evidence if there exist cogent and compelling circumstantial evidence. The evidence must be unequivocal, positive and irresistibly point to the guilt of the accused person.
See Akpen vs. State (2002) 12 NWLR (Pt.682) 667.The question that arises from the totality of the evidence adduced by the prosecution and the defence is whether the trial court rightly found there was cogent and compelling circumstantial evidence showing that the forms A1, BB/1/1994 and BB/1/1995 were all altered by the 1st accused person in December 1 999 when he went to the premises of the Nigerian Law School in order to deceive. Ineffect can it be said the forms altered by first accused were forged. The trial court in great detail reviewed, appraised and evaluated the evidence of each of the witnesses.
The court evaluated and appraised the evidence of the witnesses on this point said:
“We now know that when the case file was examined by the PW2 und PW3, immediately after its retrieval from the office of the 2nd accused person, the CLE forms A1 1993/94, BB/1 1994, and BB/1 of 1995 had in fact been tampered with.
The 2nd accused had no official business calling for the file exhibit P7. Having collected it, he performed no official business in the file. Similarly, having collected the transcript he said brought him to Bwari on the 7th December, 1999 and which he said he was in dire need of, the 1st accused person has not disclosed the urgency that necessitated his presence on the Bwari Campus on the 9th December, 1999.
The obvious inference to be drawn is that the duo were together on the 08/12/1999 to execute some common plan (see the case of Ewo Akang v. The State (1971) 1 ANLR Page 46 at 53).
This presumption is allowed in law; see the case of Chima Ijioffor v. The State (2001) 3 NWLR Pt.699 Page 55 at 69 where the Court of Appeal Benin Division held that:
“Where there are a number of circumstances which are accepted so as to make a complete unbroken chain of evidence which is established to the satisfaction of the court, it may well and properly be acted upon.
This decision was confirmed by the Supreme Court (see (2001) 9 NWLR (Pt718) Page 371 at 384) where the Apex Court held that:
“A judge is permitted to raise a presumption from the proof of some facts the existence of another fact without further proof of that other fact…..”
The above reproduced findings of the trial judge is in line with the totality of the evidence adduced .Where a trial court believes a witness, the appellant who relies on improper evaluation of evidence to set aside the judgment, has the onus to specify the evidence improperly evaluated or not evaluated and show convincingly that if the error complained of had been corrected the trial court would have reached a different decision in favour of the appellant.
See Nkebisi & Anor vs. State (2010) 1 – 2 S.C 145
Adelumola vs. the State (1988) 1 NWLR (Pt.73) 683 at 691
The ultimate burden of prove in a criminal charge is on the prosecution to prove the charge against the accused person beyond reasonable doubt as provided. The reasonable doubt which will justify an acquittal is a doubt based on reason arising from evidence or lack of it. It is doubt which a reasonable man or woman might entertain.The 1st and 2nd appellants were arraigned in count one under section 97 of the Penal Code. To sustain a conviction, the prosecution must adduce evidence to show there was an agreement between the appellants to do an illegal act to wit fraudulently alter form A1, from CLE/BB/1/1994, and CLE/BB/1 for 1995 which were in the 1st appellants’ student personal file in the Nigerian Law School.
In counts 2, 3 and 4 both appellants’ were charged under section 364 of the Penal Code. This section stipulates punishment for forgery. The Penal Code under Section 363 defined forgery as when a person makes any false document on part of a document with intent to support any claim or cause damage to the public or person.Section 362 of the Penal Act sets out when a person is said to make a false document. This includes amongst others when a person alters a document in any material part after it has been made either by himself or by any other person without lawful authority. The alteration must be made subsequent to the completion of the document and the alteration must be on a material part of the document. It cannot be a defence to claim that the alteration was merely to correct an error or was justifiable as contended by the learned counsel for the 1st appellant when he contended the forms cannot be forgery since the forms were the 1st appellant’s forms filled by him.
The evidence of PW4, PW5 and PW8, the members of the body of benchers were cogent and unassailable. They each maintained that when they signed the forms as sponsors recommending, the 1st accused person to be called to the bar the answer given in paragraph 12(b) 1l was ‘No’ and not the ‘Yes’ now superimposed on ‘No’ which has been tippexed. PW4 and PW5 said they would not have signed the form if there was an alteration on the form.
PW6 who threatened to report the 1st appellant to the Nigerian Law School on the fact that he was rusticated gave detailed evidence of his relationship. The trial judge rightly cautioned herself that PW6 evidence could be tainted. This caution suffices on what weight to attach to PW6 testimony as a tainted witness. The trial court cannot reach the verdict of guilty on the uncorroborated evidence of such witness and did not convict solely on PW6 testimony.
Inrespect of the evidence of PW2 and PW3 in the circumstance, the question remains whether they were properly appraised as evidence of credible witnesses. The first and second appellants have not shown from the evidence adduced before the trial court why they described them as tainted witnesses. A tainted witness is a witness who by the evidence he gave could be regarded as having some purpose of his own to serve. See Moses vs. State (2006) 11 NWLR (Pt.992) 548 S.C Oguonce vs. State (1998) 5 NWLR (Pt.551) 521 S.CThe learned trial judge found that PW2 testimony remained consistent on how the 1st accused applied for transcript on 7th December, 1999 and he received the transcript same date. How he returned again on the 8th of December, 1999 that same date of allegation of bribery.
I agree with the learned trial judge from the facts adduced in evidence that the bribery allegation is an afterthought. The sequence of events does not support the allegation which has not been established beyond reasonable doubt. First was the request for reference letter which was issued on same date. Second, the request for personal file of 1st appellant by 2nd appellant notwithstanding he was informed the reference letter had been given to the 1st appellant , all this reflected the intention to tamper with the personal file and the presence of first appellant as found by the trial judge on 8th of December, 1999 after PW2 had given him the reference letter. The tippex of ‘No’ for ‘Yes’ in the forms which was not at the time form was filed according to evidence but observed by PW2 and PW3 when file was retrieved were sufficient, unequivocal credible circumstantial evidence to support the findings of the trial judge and the conviction of the appellants for conspiracy and illegal alteration of the forms.
PW3 and PW2 were not tainted witnesses as borne out from the legal evidence. The first appellant alleged that PW2 and PW3 demanded for a bribe before they will give him the reference letter. His contention is that because he refused they are tainted witnesses. In other words they gave evidence because they have some purpose of their own to serve.
The onus is on the first appellant that alleged bribery to establish same.
There is no credible evidence to support the bribery and the charge that culminated in this appeal was against the appellants not the PW2 and PW3.
The PW2 and PW3 from the facts before the court there is no ulterior reason or motive disclosed why they will lie against the 1st and 2nd appellant. PW2 approached PW3 and told him the request made by the first appellant. The 1st appellant admitted he altered the forms, when he filed them. The issue of alteration is not in dispute. The PW2 and PW3 did observe the alteration on the 1st appellant form when it was retrieved this was not refuted. PW4, PW5 and PW8 all testified that the form could not have been altered or they would not have signed it. These witnesses by virtue of their statutory role as body of benchers are required to sponsor candidates. There is no fact adduced from which one can infer any motive to lie against the appellant. They testified as sponsors of the 1st appellant in the law school, based on the form they signed.
Apart from PW6 the other witnesses were not tainted witnesses as contended by the 1st appellant senior counsel.
The evidence of prosecution witnesses though not direct was strong and compelling circumstantial evidence to sustain conviction. It is the further submission of the learned counsel for the 2nd appellant that the trial court and prosecution failed to take advantage of the attendance of DW1 as an expert witness for ascertainment of the age of the alterations in exhibit P1. The prosecution called witnesses to prove that the alteration made by the appellants were not made when the forms were filled but that the alteration were made subsequently to change an earlier impression.
See Arowolo vs. Ifabiyi (2002) FWLR (Pt.95) 296
The PW4, PW5 and PW8 gave evidence the alterations were not made at the time they signed the forms. The onus shifted unto the defence to refute that testimony and show by their expert witness that the alterations were made when the 1st appellant filled the form. The prosecution need not call expert finger print witness. The first appellant raised the defence that the alterations were not made in 1999. 1993/94. He should offer credible evidence explaining why he tippexed all the forms at each time on the same issue. I am fortified by the decision of the Supreme Court in Omogodo vs. the State (1981) 5 SC 24 where they held
“In a criminal case the burden is always on the prosecutor to prove the guilt of the accused beyond all reasonable doubt Generally, there is no duty on the accused to prove his innocence. Circumstances may, however, arise where some explanation may be requited from the accused person such as where apparently damning circumstances ore established against the accused.”
The alteration was established. The learned trial judge found the application for admission from A1, form CLE/BB/1994 and CLE/BB/1995 could not have been altered the same date in 1994. The 1stappellant could not have made the same mistake of answering ‘No’ in the column of the form with the question.
“Have you ever been (a) rusticated or (b) suspended by a university.” It is not probable that the 1st appellant who filled the forms at different period persisted in changing his mind by inserting ‘No’ instead of ‘Yes’.
The learned trial judge said:
“While it is a plausible argument to say that being human, the 1st accused person erred in filling the 1st form that is, CLE for A1, and therefore, corrected some, having as he stated, changed his mind to enter ‘Yes’ instead of ‘No’ what happened on the subsequent occasions? Having made up his mind perhaps on the 14/06/1993 when he signed exhibit PI pages 7-4, why would he make the same error on the 21/06/1994 when he filled in form CLE/BB/I/1994 on pages 29-30 of exhibit P1 and yet a 3rd error on pages 33-34 on the 5th June, 1995 when he again signed the said pages? As at the time of filling in the subsequent forms the situation had not change the move to settle out of court had broken down, the case was still pending.
Why then did the 1st accused keep making the same error about a situation which had not changed?
It is the testimony of the 1st accused person that the move to settle the suit out of court took place about the some time he was filling the Law School forms. The move to settle broke down in 1993
when the first form, CLE/A1 was filled and dated 14th June 1993 and therefore had to be altered. What is the explanation for the subsequent alterations made in 1994 and in 1995? The inference to be drawn here is that the alterations were made at one and the same time, after the forms had been filed in the student’s file exhibit P1.” The above inference and appraisal of the evidence is unassailable. The inference was drawn from cogent and compelling evidence. The intention to conceal the truth is inferred from the circumstances of the case. There was a law suit between 1st accused and RSUST as shown in Exhibits D66A and D67 but this fact was not stated at the time 1st appellant filled his form. The 1st appellant decided to change the information supplied on that issue in all the forms. Hence the alteration in the three forms set out in the charge. The intention inferred is that of deceit
The information supplied was not correct. The expression of ‘No’ in certain columns persuaded the sponsors of his application to the law school to sign his forms. The change to ‘Yes’ disclosed the dishonest intention to have suppressed information. Instances may obtain where a combination of circumstances against an accused when taken together would create a conclusion of guilt with certainty as human affairs can admit. See Akinmoju vs. State (2000) 6 NWLR (Pt.662) S.C. Uwaifo JSC said:
“In drawing such an inference and reaching a conclusion of guilt, however from circumstantial evidence leading to the conviction of on accused, it is necessary to be sure that there ore no other co-existing circumstances which would weaken or destroy the inference.”
I have carefully looked at the findings of the learned trial judge and the evidence adduced and I cannot find any coexisting circumstances that will weaken the circumstantial evidence adduced against the first and second appellant. There is no doubt arising from the evidence adduced. I resolve issues 4D and E against the 1st appellant and issues 2 and 3 against the 2nd appellant.
Issue 4C formulated for determination in the 1st appellants brief is whether there was a proper evaluation of the evidence before the learned trial court to warrant the findings of facts made in the judgment. This issue is related to the earlier issues considered.
The contention of learned senior counsel is that the learned trial judge made findings based on wrong application of principles of substantive law concerning the evidence of a tainted witness. PW6 evidence is not on alteration but on motive for the alteration. In effect because he quarreled with 1st appellant he threatened to reveal the fact that 1st appellant was rusticated in the university. The circumstantial evidence adduced by the other witnesses the trial court rightly found credible and cogent and inferred that the alterations were done by both appellants.
It is elementary principle of law that the function of evaluation of evidence is essentially that of the trial judge who believed the witnesses once the role is satisfactorily performed. The appellate court will not interfere.
See Nkebis & Anor vs. State (Supra).
Adepetu vs. State (1998) 9 NWLR (Pt.565) 185 at 207
The learned trial judge rightly inferred from the unequivocal circumstantial evidence that the 2nd appellant and first appellant altered the form in 1999 that I have no reason to interfere with the findings. I resolve Issue 4(c) against the appellants.
The 2nd appellant counsel under Issue 4 in his brief submitted that there is nowhere in the record or the testimonies of the witnesses called at the trial court where it was stated that the 2nd appellant was the one who fraudulently altered the disputed forms. It is his contention that the 1st appellant admitted he made the alterations. He contends there is no iota of evidence that connected him to counts 2,3 and 4 of the charge.
Under Issue 5 it is the submission of the learned counsel that the conviction of the appellant on counts 2, 3 and 4 relating to fraudulently alterations were based on personal opinion of the learned trial judge rather than on established facts.
The learned counsel for the respondent submitted that the court can infer conspiracy and convict if satisfied from the evidence that the accused person’s pursuit by their acts, the same object, one performing the other part of the act so as to complete their unlawful design. It is his further submission that an accused person is criminally liable for any and all criminal acts carried out by his co-accused in execution of their unlawful common purpose. It is his contention that the 2nd appellants enabled the 1st appellant to alter the forms by collecting the file from PW2. That both participated in their grand design of altering the forms.
The conviction of the 2nd accused person on counts 2, 3 and 4 were based on circumstantial evidence. The learned trial judge on the charge against the 2nd appellant held as follows:
“The 2nd accused person collected the file Exhibit PI in order to help the 1st accused person process his application he said. At the point of collecting the file he was informed that the application had been processed and the transcript handed over to the 1st accused. He nonetheless collected the file. In spite of queries served on him twice, the 2nd accused person made no mention of the allegations made by MF. Brown, the 1st accused person about MF. Thaddeus, the PW2. His testimony is court about the said allegation of a demand of N20, 000.00 by the PW2 and PW3 of the 1st accused is, therefore an after thought and of no evidential consequence. The case of Michael Alor v. The State (supra) at page 741 held that where an accused had made a previous statement which is inconsistent with his evidence in court, the evidence would be treated not only as unreliable but the previous extra-judicial statement cannot constitute evidence to be acted upon, see also the case of Akpan Ben Akpan v. The State (2000) 12 NWLR (Pt.682) page 607 at 622.
Having plunged himself down neck deep the 2nd accused tried to hold on to a straw for survival. The truth always has a way of rearing its needful head to set situations and persons in their proper perspective.”
The findings of the learned trial judge are borne out of inference drawn from the evidence adduced by both the prosecution and the defence. The 1st appellant was given his reference letter on the 7th of December, 1999 the same date he paid officially for the letter. The allegation that PW2 and PW3 demanded for money before he can collect it within three hours was not established. On the contrary the 1st appellant collected his reference letter without any payment as bribe money to the PW2 and PW3. This raised doubt as his allegation on bribery.
Exhibit D20 is a petition written by 1st appellant against the director General Council of Legal Education Dr. Kole Abayomi PW2 and PW3 on allegation of official corruption. The learned trial judge considered the allegation of bribery and held it was on afterthought and in my view well evaluated. The allegation must be proved beyond reasonable doubt. The 2nd appellant in evidence said:
“On the 7th December, 1999 at about 3pm in the afternoon, the 1st accused person, MF. Malachi Elisha Brown walked into my office in the registrar department of the Nigerian Law School and complained to me of demands by staff of the Law School that he should pay a fee of twenty thousand naira. This staffs are MF. Thaddeus Idach PW2. He, MF. Brown demanded to know if that was the normal procedure or the normal fee paid by people seeking for transcript or reference letter.
I told him I have not heard of such but that what obtains is N750.00 for reference letter and N500.00 for transcript and those fees are paid to the Account Department after which a receipt is issued. The receipt is now attached to the application for the document the applicant desires.”
On the 7th December, 1999 2nd appellant in evidence said he followed 1st appellant to the PW2’s office in effect both of them met on the 07/12/1999 at about 3pm. The evidence of the 1st accused and PW2 and PW3 is that the reference letter was collected on that 07/12/1999. The 2nd appellant had no good reason to have gone back on the 8th of December, 1999 to collect the 1st appellant’s personal files. The inference is that the 2nd appellant had bad intention not supported by any reasonable explanation why he went back on the 8th of December, 1999. The only inference is that 2nd appellant collect the personal file to effect the alterations.
He facilitated the alteration by collecting exhibit P1 . The 2nd appellant cannot extricate himself from the resultant act of alteration. First appellant was seen in the premises on the same 8th of December 1999 when he collected the exhibit P1. I am guided in holding this view by the decisions of the Supreme Court here under. In Simiyu Alarape &Ors vs. the State (2001) 5 NWLR (Pt.705) 79 Page 102 Iguh JSC held:
“The point that needs to be emphasized in these sorts of the cases is that once it is firmly established that two or more persons formed the necessary common intention to prosecute on unlawful purpose and in the prosecution of such purpose, an offence of such a nature that its commission was a probable consequence of the prosecution of such purpose is committed, each of the is deemed to have committed the offence.”
See also Oyakhire vs. State (2006) 15 NWLR (Pt.1001) SC 157 where Tabai JSC held:
“My view is that if, in the course of the accused persons’ execution of their unlawful common purpose of armed robbery an while jointly and severally employing their arms to overcome the victims’ resistance or facilitate their own escape, the gun shot of one of them kills any of the victims, each of the accused persons is deemed, in the eyes of the law, to have fired the fatal gunshot and criminally liable for the armed robbery as well as the culpable homicide. See the case of okosi v. The state (1989) 1 NWLR (Pt.100) 642 at 658. Similarly, the gun shot of one of the accused persons into the vehicle that caused the fire which burnt the vehicle and the four persons in to death is to the same effect. In the circumstances of this case, it is enough proof of the criminal liability of all the three accused persons to establish that the gun shot of one of them caused the death of the victims. It is immaterial to prove what each of the accused persons did in the actualization of their pre-conceived common purpose.”
From the entirety of the evidence adduced the learned trial judge rightly drew the inference from the circumstantial evidence of the guilt of the two appellant in the absence of any co-exciting circumstances which would weaken or destroy the inference. See Ebre vs. State (2001) 12 NWLR (Pt. 728) SC 617
I therefore resolve this issue five against the 2nd appellant.
In the final analysis that all the five issues 4 are submitted by the learned silk have been resolve d against the 1st appellant. I find the appeal by him lacking in merit and accordingly dismissed. The five issues distilled in the second appellants brief have also been resolved against him. 2nd appellants appeal is devoid of merit and is hereby dismissed. I affirm the decision of the trial court on convictions and sentences of the 1st and 2nd appellant respectively.
MOHAMMED LAWAL GARBA, J.C.A.: The issues that call for determination in this appeal have been fully and thoroughly considered by my learned brother REGINA OBIAGELI NWODO, JCA in the lead judgment, a draft of which I had read before today. I am in complete agreement with the conclusions reached therein and have nothing more to add.
The appeal is dismissed by me for all the reasons set out in the lead judgment which I hereby adopt. The conviction and sentences on the Appellants are hereby affirmed.
PAUL ADAMU GALINJE, J.C.A.: I have had the privilege of reading in draft the ruling just delivered by my learned brother, Nwodo JCA, and I agree with the reasoning contained therein and the conclusion arrived thereat.
For the reasons masterly marshaled in the lead Judgment which I adopt as mine, I too dismiss the appeal.
Appearances
S.I. Ameh (San) with Christie Oko I. (Mrs.) for 1st Appellant
Okey Uzoho appearing with M.U. Asogwa and Kelechi Okpara for 2nd appellantFor Appellant
AND
T.A. Gazali for the respondent.For Respondent
