MUSA DANJUMA v. FEDERAL REPUBLIC OF NIGERIA
(2018)LCN/12497(CA)
In The Court of Appeal of Nigeria
On Friday, the 20th day of July, 2018
CA/B/125C/2016
RATIO
EVIDENCE: EVALUATION OF EVIDENCE
“It is settled law that evaluation of evidence and the ascription of probative value thereto reside within the province of the trial Court that saw, heard and assessed the witnesses and that where a trial Court unquestionably evaluates the evidence and justifiably appraise the fact, it is not the business of the Appellate Court to substitute its own views for the view of the trial Court. The Court will only interfere where there is insufficient evidence to sustain the judgment, or where the trial Court fails to make proper use of opportunity of seeing, hearing and observing the witnesses or where the findings of fact of trial Court cannot be regarded as resulting from the evidence or where the trial Court has drawn wrong conclusion from accepted evidence or has taken an erroneous view of the evidence adduced before it or its finding are perverse in the sense that they do not flow from accepted evidence or are not supported by evidence before the Court. See the case of OBA ADEBAJO MAFIMISEBI & ANOR V. PRINCE MACAULAY EHUWA & ORS. NSCQLR Vol. 29 (2007) 410 at 417. Further to the foregoing, where the complaint centers on assessment or consideration of documentary evidence tendered in the proceeding or non evaluation of the documents tendered the Appellate Court is not foreclosed.” PER MUDASHIRU NASIRU ONIYANGI, J.C.A
Before Their Lordships
JIMI OLUKAYODE BADAJustice of The Court of Appeal of Nigeria
PHILOMENA MBUA EKPEJustice of The Court of Appeal of Nigeria
MUDASHIRU NASIRU ONIYANGIJustice of The Court of Appeal of Nigeria
Between
MUSA DANJUMAAppellant(s)
AND
FEDERAL REPUBLIC OF NIGERIARespondent(s)
MUDASHIRU NASIRU ONIYANGI, J.C.A. (Delivering the Leading Judgment):
This appeal is against the judgment of the Federal High Court Asaba Judicial Division, holding in Asaba Delta State delivered on 19th day of February 2016 in charge FHC/ASB/5C/2014.
The fact that led to the arrest and subsequent arraignment of the Appellant is as follows. On the 26th day of September 2013 at about 10.12 hours one Nelson Ashubudike and his team of the intelligence Department of the Nigeria Security and Civil Defence Corps arrested the Appellant and one SHAIBU OGBAGE at Chipet Filling Station along Asaba Benin express way while discharging petroleum product suspected to be illegally possessed. The Appellant was subsequently arraigned with the other suspect before the Federal High Court Asaba on an initial three counts charge. The Appellant pleaded not guilty to the counts. The three counts charge was amended and an amended charge dated 27/2/2012 was filed. He pleaded not guilty to the three counts charge. This charge was again amended and the amended charge dated 2nd April 2014 containing the following counts was filed. (See page 52 of the Record of Appeal).
AMENDED CHARGES
COUNT 1.
That you MUSA DANJUMA (M) SHAIBU OGBAGE (M) on or about 25th of September, 2013, at about 17.30 hours at Okwe in Oshimili South Local Government Area of Delta State, within the jurisdiction of this Honourable Court did conspire to commit felony to wit dealing in petroleum products contrary to Section 3(6) and punishable under Section 1(17) of the Miscellaneous Offences Act Cap M17 of the Revised Edition (Laws of the Federation of Nigeria) Act 2007.
COUNT 2
That you MUSA DANJUMA (M), SHAIBU OGBAGE (M) on or about 25th September, 2013 at about 17.30 hours at Okwe in Oshimili South Local Government Area of Delta State within the jurisdiction of this Honouable Court did deal in petroleum product and loaded in a truck with Registration NO. XR 652. ENU which conveyed 33000 liters of the product without appropriate waybill and license, thereby committed an offence contrary to and punishable under Section 1(17) of the Miscellaneous Offences Act Cap. M17 of the Revised Edition (Laws of the Federation of Nigeria) Act 2007.
COUNT 3.
That you MUSA DANJUMA (M) SHAIBU OGBAGE (M) on or about 25th September, at about 17.30 hours at Okwe in Oshimili South Local Government Area of Delta State within the jurisdiction of this Honourable Court did deal in adulterated petroleum products contrary to and punishable under Section 1(18) (a) of the Miscellaneous Offences Act, Cap. M17 of the Revised Edition (Laws of the Federation of Nigeria). Act 2007.
On the 21st May 2014, the Appellant again pleaded not guilty to the amended three counts charge. (See page 99 of the Record of Appeal). There after the matter went through a full trial and in the end, the learned trial Judge in his considered judgment discharged and acquitted the Appellant of count one. The Appellant was found guilty and convicted of counts 2 and 3. The Appellant was sentenced to 5 years imprisonment in hard labour or a fine of N2000,000.00 (Two Million Naira Only) in respect of count 2. For count 3, the Appellant was sentenced to 5 years imprisonment in hard labour with no option of fine. The sentences are to run concurrently. (See page 184 of the Record of Appeal). Dissatisfied with the outcome of the trial hence this appeal which is predicated on the Notice of Appeal dated and filed on 22nd February 2016. (See pages 185 – 190 of the Record). I herein under reproduce the grounds of appeal but without the particulars
GROUNDS OF APPEAL
(1) ERROR IN LAW:
‘The learned trial Judge erred in law when she held that the Accused person/Appellant dealt with petroleum product on or about 25th September, 2013 without an appropriate license thereby convicted and sentenced him to (5) five years imprisonment with option of fine of Two Million Naira’.
(2) ERROR IN LAW:
‘The learned trial Judge erred in law when she convicted and sentenced the accused person in count 2 notwithstanding the fact that the said count did not disclose any offence known to law’.
(3) ERROR IN LAW:
‘The learned trial Judge erred in law when she failed to consider the accused person?s alibi before convicting and sentencing him in counts 1 and 2 of the charges and in so doing entered a wrong decision which occasioned grievous miscarriage of justice’.
(4) ERROR IN LAW:
‘The learned trial Judge erred in law when she wrongly admitted Exhibit G and relying on the said Exhibit, she convicted the accused person’.
The record of appeal was transmitted on 1/4/2016 and consequent upon which respective counsel filed their brief of argument.
The Appellant’s brief of argument authored by C.I. Okoye Esq was dated and filed on the 20/4/2017. The said brief was deemed as properly filed and served on 2nd day of February 2018.
In the said brief the learned counsel representing the Appellant formulated the following issues for determination.
APPELLANT’S ISSUE FOR DETERMINATION:
(a) Whether the trial Court was right to hold that the Appellant (Accused Person) dealt with petroleum product on or about 25th September, 2013 without lawful authority and appropriate license in view of the unambiguous content of Exhibits DF1 and DF2 and the wordings of the charge in count 2 respectively. (Grounds 1 and 2 of the Appeal refer).
(b) Whether the trial Court properly considered and evaluated the defence of an agent to a known principal as set up by the Appellant before arriving at the conviction and sentencing of the Appellant (Ground 3 refers).
(c) Whether the trial Court rightly relied on Section 55(2) of the Evidence Act (2011) in admitting Exhibit G. through the PW2 an officer of the Nigerian Security and Civil Defence Corps (NSCDC), Mr. John Odu. If the answered above is no, whether the trial Court’s reliance on the said Exhibit G to convict the Appellant (Accused Person) with dealing on adulterated petroleum product does not occasion miscarriage of justice. (Ground 4 and 5 refer).
(d) Whether the judgment of the trial Court was not against the weight of evidence adduced before the Court (Ground 6 refers).
The Respondent’s brief settled by M.B. Uboyi Esq is dated and filed on 7th day of August 2017. Therein he distilled the following issues for determination.
RESPONDENT?S ISSUE FOR DETERMINATION.
(a) Whether the trial Court was right to hold that the Appellant/Accused person dealt in petroleum product on or about 25th September, 2015 without lawful authority or appropriate license.
(b) Whether the trial Court was right to hold that the Appellant/Accused person dealt in adulterated petroleum product.
On the 21st day of May 2018, both learned counsel adopted their respective brief of argument. The Appellant urged the Court to allow the appeal and set aside the judgment of the trial Court in charge No. FHC/ASB/5C/2014 delivered on 19th February 2016 and discharge and acquit the Appellant. In the same vein, the Respondent urged the Court to dismiss the appeal and affirm the judgment of the trial Court.
Upon a careful perusal of record of appeal, and the respective brief by parties, I have decided to adopt the issues formulated by the Appellant for the determination of this appeal. In doing this, I will treat issue A first and there after issues B, C and D will be taken together because they are all questioning whether or not the trial Court properly considered and evaluated the evidence before the Court and with a view of determining whether or not the judgment of the trial Court is against the weight of evidence.
ISSUE A
Whether the trial court was right to hold that the Appellant (Accused Person) dealt with petroleum product on or about 25th September, 2013 without lawful authority and appropriate license in view of the unambiguous content of Exhibits DF1 and DC2 and the wording of the charge in count 2 respectively. (Grounds 1 and 2 of the Appeal )?.
The Appellant’s counsel in arguing this issue reiterated that the 1st defence witness of the Appellant DW1 Peter Chinedu, the chairman and Managing Director of Chipet International Ltd. in his testimony tendered the following document in defence of the Appellant.
(i) Petroleum storage and sale license issued to Chipet International Ltd for petrol station along Benin/Onitsha High Way, Asaba dated 17th October, 2012 with expiration date of 31st December, 2013 admitted as Exhibit DF1.
(ii) Receipt for renewal of 2014/2015 petroleum storage and sale license issued by the Department of Petroleum Resources to Chipet International Ltd dated 19/08/17 was admitted as Exhibit DF2.
(iii) FCMB Bank statement of Account of Chipet International Ltd covering 1st to 30th September 2013 showing payment of N5,640,630.00 made to Matrix Energy Ltd on 11/09/2013 by Chipet International Ltd for the 40, 000 liters of petroleum product purchased within the period under investigation was admitted as Exhibit DF3 (See pages 140 to 149 and 173 of the Record).
Equally he supplied the list of Exhibits tendered by the prosecution (Respondent) at the trial.
(i) Statement of the 1st Accused person admitted as Exhibit A.
(ii) Statement of the 2nd Accused person admitted as Exhibit B
(iii) Waybills from Chipet International Ltd admitted as Exhibits C,D,E and F respectively.
(iv) Letter dated 9th October 2013, from PPMC admitted as Exhibit G.
(v) Motor Vehicle Truck with Registration No. XR 652 ENU with three empty compartments was admitted as Exhibit H. (See pages 98 to 102, 126 to 130, 135 to 138 and 172 to 173 of the Record.)
It will be recalled that the Appellant was discharged and acquitted on count one which is for an offence of conspiracy to commit felony to with dealing in petroleum products contrary to S.3(6) and punishable under Section 1(17) of the Miscellaneous Offences Act Cap. M17. (Laws of the Federation of Nigeria) Act 2007. Hence he submitted in count two of the amended charge that the amended charge is defective fundamentally as it charged the Appellant with an offence unknown to law. i.e dealing in petroleum product without appropriate waybill which is not an offence recognized under any written law.
He said the count ought to be struck out because by the provision of S. 36(8 and 12) of the 1999 Constitution of the Federal Republic of Nigeria, only offences known to law and which punishment is also provided by the law is chargeable. He argued that despite the Court agreeing on the position of the law still went about to consider the second limb of the charge. He submitted that it is not the duty of the trial Court in a criminal proceeding where proof is beyond all reasonable doubts to suo motu amend a charge by picking and choosing words that will only favour the case of the prosecution by failing to consider the effect of charging the Appellant with dealing in petroleum product without appropriate waybill, an offence unknown to law and proceeded to import the word ‘without lawful authority or an appropriate license’ the trial Court failed to give correct interpretation to Exhibit DF1, DF2 and DF3 which are:
(i) Petroleum storage and sale license issued to Chipet International Ltd for petrol station along Benin/Onitsha High Way, Asaba dated 17th October 2012 with expiration date of 31st December, 2013.
(ii) Receipt for renewal of 2014/2015 petroleum storage and sale license issued by the Department of Petroleum Resources to Chipet International Ltd. dated 19/08/14.
Referring to the finding of the Court on Exhibit DF1 and DF2 contained on page 176 of the record, where the Court concluded that the Appellant at the point of arrest were engaged in their trade of the business and storing and selling petroleum products and that the Appellant is an employee of Chipet International Ltd, he submitted that it was wrong for the trial Court to conclude that the Appellant has no lawful authority to deal in petroleum product. In the face of Exhibit DF1 and DF2, regardless of the foregoing, the Court after providing the Dictionary meaning to the word ‘dealing’ came to the conclusion contained on pages 177 – 178 of the record of appeal. He submitted that evaluation of evidence before the Court and the ascription of probative value to such evidence are the primary functions of the trial Court, which saw, heard and assessed the witness while they testified. Where such Court questionably evaluates the evidence and unjustifiably appraises the facts and evidence before it, then it is the duty of the Appellate Court to interfere and substitute its own view. He argued that the position of the trial Court that there was no license for the year 2013 when the Defendant was arrested is not correct having regard to Exhibit DF1 of 17/10/2012 which is to expire on 31st December 2013. Appellant was arrested on 25th September, 2013. He urge the Court to set aside and quash the conviction and sentence of the Appellant, discharge and acquit him in count 2 of the further amended charges.
In response to the foregoing the learned counsel representing the Respondent submitted that the trial Court was right in holding that the Appellant dealt in petroleum product on or about 25th September, without lawful authority or appropriate license. After reproducing Section 1(17) of the Miscellaneous Offences Act, Cap. M17 of the Revised Edition (Laws of the Federation of Nigeria) 2007, he posed the question ‘was the accused person armed with any document at the point of arrest to show that he was legally dealing in petroleum product or that he was authorised to deal in petroleum product He answered in the negative. He relied on the evidence of PW1 and PW2 as to how, and where the Appellant was arrested and his inability to produce the waybill. (See pages 101 line 5-14 and pages 127 lines 15-19 of the record for the relevant evidence of PW1 and PW2). He submitted that the Appellant at the time of arrest had no authority to do so and that the waybill they produced after 4th day was for the vehicle with Registration number XL 116 GGE and not the vehicle with Registration number XR 652 ENU with which he was arrested hence the Appellant at the time of distribution of petroleum product had no valid document to so do. He contended further that the Respondent has proved its case on count 2 beyond reasonable doubt. He relied on the case of KOLAWOLE V. STATE (2015 8 NWLR (Pt.1460) 64 at 163. D-F. He urged the Court to resolve issue one in favour of the Respondent.
In the light of the foregoing arguments for and against, the question that readily come to mind is whether or not the Appellant was tried and convicted of an offence not known to law and whether the Appellant has the requisite license to deal in petroleum product. To provide answer to the first segment of the question, both the law under which the Appellant was tried and convicted in count two and the amended charge (count 2) dated 2/4/14 has to be examined.
The second amended charge dated 2nd April 2014 which the Appellant was tried, convicted and sentenced in count 2 can be found on page 52 of the record. The plea of the Appellant was taken on 21st May 2014. See page 99 of the record. I hereinunder reproduce count 2 of the amended charge dated 2nd April 2014 to which the Appellant pleaded not guilty, convicted and sentenced.
COUNT 2:
‘That you MUSA DANJUMA (M), SHAIBU OGBAGE (M) on or about 25th September, 2013 at about 17:30 hours at Okwe in Oshimili South Local Government Area of Delta State within the jurisdiction of this Honourable Court did deal in petroleum product and loaded in a truck with Registration No: XR 652 ENU which conveyed 33000 liters of the product without appropriate waybill and license, thereby committed an offence contrary to and punishable under Section 1(17) of the Miscellaneous Offences Act Cap. M17 of the Revised Edition (Laws of the Federation of Nigeria) Act 2007.
I hereinunder reproduce Section 1(17) of the Miscellaneous Offences Act, Cap. M17 of the Revised Edition (Laws of Federation of Nigeria) 2007.
S. 1(17)
‘Any person who without lawful authority or appropriate license:-
(a) Imports, exports, sell or offer for sale, distribution or otherwise deals with or in any crude oil, petroleum product in Nigeria.
(b) Does any act for which license is required under the petroleum Act shall be guilty of an offence?.
A quick look at count two of the charge suggest that the charge alleged that the Appellant was dealing in petroleum product without appropriate waybill and license.
Also, upon a sober reading of S. 1(17) of the Miscellaneous Offences Act, it is obvious that the law is against dealing without lawful authority or appropriate license.
In my view, the count two is alleging dealing in petroleum product without waybill and license. Whereas the law is targeted against dealing in petroleum product without lawful authority or appropriate license. It is crystal clear and without any ambiguity that the law is basically against dealing in petroleum product without lawful authority or appropriate license. By this a person can only deal in petroleum product if he has the lawful authority to so do or that he is licensed to deal in the product.
The law for all intent and purposes is not talking about waybill but appropriate license. This therefore suggest that the count 2 of the amended charge and to which the Appellant pleaded not guilty is not captured in S. 1(17) of the miscellaneous offence Act. What I am saying is that the issue of waybill is not one of the acts contemplated under S.1(17) of the Miscellaneous Offences Act. The pertinent question is whether or not the Appellant is misled by such error. In my view the error here only provided an additional request i.e. absence of waybill. But in the same charge the purport of the charge which is dealing in petroleum product without license or authority is well captured. That is to say that the error does not prejudice the defence or interest of the Appellant. See the finding and conclusion of the Court on page 178 lines 7-13 of the record.
Therefore it will not in my view, be sufficient to grant an order quashing the conviction of the Appellant. See the old case of MGBEMENE V. INSPECTOR GENERAL OF POLICE (1963) 1 ALL NCR. 321; OGBODU V. THE STATE (1987) 2 NWLR (Pt.54) 20; EWHARIEME & ORS V. THE STATE (1985) 11 SC. 174. However, this is not to say that where this Court is of the view that the error is sufficient to prejudice the interest of the Appellant it will not hesitate to intervene and make appropriate order in the circumstance.
Having said this, the next question is whether or not the Appellant was dealing in petroleum product without license. The finding of the learned trial Judge is that the Appellant was dealing in petroleum product without license. This finding of the Court is based on the evidence of PW1 and PW2 called by the prosecution. The Appellant in his defence called DW1, Peter Chinedu, the Managing Director of Chipet International and Chipet Pure Energy Limited. (See his testimony on pages 140 -146 of the record). He posited that he has the authority and license to deal in petroleum product. Further to this he affirmed that the Appellant is his employee.
That is to say that he is the employer of the Appellant and that he was on duty discharging petroleum product of the company at the company’s petrol station when he was arrested. Through this witness Exhibit DF1 and DF2 were tendered and admitted amongst others as the license issued to the company by the Federal Government authorising the company Chipet International Company to deal in petroleum product. The learned trial Judge rejected this piece of evidence after finding that the license does not cover the year 2013 as against the claim of the Appellant and DW1 that the company is duly licensed to deal on petroleum product. The question is whether or not the Appellant has the authority and license to deal in the product? In order to determine this the testimony of Peter Chinedu, Managing Director Chipet International DW1, has to be examined. (See pages 140 – 146 of the record.) In this regard and for purposes of better understanding I reproduce part of his deposition on oath hereinunder.
‘…I am Peter Chinedu the Managing Director of Chipet International and Chipet Pure Energy Limited. I am an independent petroleum marketer. I live at No. 16 Peter Chinedu crescent, Federal Housing Estate, Onitsha. I know the accused person. One is my driver and the other a conductor. Chipet deals in petroleum products.
In September, 2013 we have license to deal in the product.
OKOYE: I seek to tender the license.
UBOYI: I have no objection
COURT: The petroleum storage and sale license is hereby admitted and marked Exhibit DF1.
DW1: I have renewed it. I was issued with a receipt for the renewal.
OKOYE: I seek to tender the receipt.
UBOYI: I have no objection.
COURT: The receipt is hereby admitted and marked as Exhibit DF2…’
The foregoing shows that DW1, is the employer of the Appellant and that the Appellant was working for him at the time when they were arrested at Chipet petrol station. Let me quickly deal with the relationship of the Appellant and DW1, the managing director of Chipet. From that undisputed and uncontradicted evidence, it is clear that at the time the Appellant was arrested, he was working for a disclosed principal. Chipet International Ltd. and to which DW1 is the managing director. It is trite that where an agent is acting on behalf of a known and disclosed principal he incurred no liability.
This is because acts done by the agent is the act of the principal. See the following cases: ANYAORAH V. ANYAORAH (2001) 7 NWLR (Pt. 711) 158; ESSANG V. AUREOL PLASTICS LTD.(2002) 17 NWLR (Pt. 795) 155; AMADIUME V. IBOK (2006) 6 NWLR (Pt. 975) 158. The latin maxim on this is ‘qui facit per allium, facit per se asam facere indepur’ meaning: ‘he who does an act through another is deemed in law to do it himself’.
For the foregoing principle of law and considering the evidence of the Appellant before the trial Court that he is an employee of the Chipet International Co. to which DW1 is the Managing Director, the Appellant in the circumstance ought not be arraigned before any Court after having disclosed his principal and the principal boldly came out to accept the act of the Appellant and that he was working for him. I leave this for now and would revisit it at the appropriate time in this judgment.
Now back to the license and receipt tendered as Exhibits DF1 and DF2. A careful look at the Exhibit clearly shows that the Appellant’s employer were licensed to deal in petroleum product and that they have a current and valid and subsisting license to deal in the product. In my view, this is what the Court considered in determining count one and which led to the finding and conclusion of the learned trial Judge discharging and acquitting the Appellant on count one. This ordinarily ought to have been applied to count 2 (two). Rather than doing this the Court made a ‘U’ turn, found the Appellant guilty, convicted and sentenced. A Court should not approbate and reprobate at the same time. See FEDERAL REPUBLIC OF NIGERIA V. IWEKA (2011) 11-12 SC. (Pt. 1) 191. The totality of the foregoing suggest that the learned trial Judge did not give the desired and proper consideration to the evidence of the Appellant, DW1 and Exhibit DF1 and DF2 respectively. If he has done that, he would have come to one and only conclusion that it is not the Appellant that was dealing in petroleum product but Chipet International Company Ltd and Mr. Peter Chinedu DW1, the alter ego of the company. The Appellant is a mere agent of a disclosed principal who at the time of arrest of the Appellant has the appropriate current license (Exhibit DF1 and DF2) to deal in petroleum product.
Accordingly, I resolve this issue against the Respondent and in favour of the Appellant.
ISSUE 2, 3 AND 4.
For ease of reference, I hereinunder reproduce the three issues which I had earlier on indicated would be taken together.
ISSUE 2:
Whether the trial Court properly considered and evaluated the defense of an agent to a known principal as set up by the Appellant before arriving at the conviction and sentencing of the Appellant.
ISSUE 3:
Whether the trial Court rightly relied on Section 55(2) of the Evidence Act (2011) in admitting Exhibit G. through the PW2 an officer of the Nigerian Security and Civil Defence, Corps (NSCDC) Mr. John Odu. If the answer is no, whether the trial Court’s reliance on the said Exhibit G to convict the Appellant (Accused person) with dealing on adulterated petroleum product does not occasion miscarriage of justice. (Grounds 4 & 5).
ISSUE 4:
Whether the judgment of the trial Court was not against the weight of evidence adduced before the Court.
In respect of the foregoing three issues the contention of the Appellant is that the learned trial Judge did not properly consider and evaluate the defence of an agent of a disclosed principal put up by the Appellant before convicting and sentencing him. Also contended is that Exhibit ‘G’ tendered through PW2 an officer of the Nigerian Security and Civil Defence Corps (NSCDC) Mr. John Udu and which the Court relied on in convicting the Appellant for dealing in adulterated petroleum product is improper and whether the judgment of the Court is not against the weight of evidence. Against the foregoing is the contention of the Respondent that the Court properly evaluated the evidence placed before it and that the Appellant is culpable of the offences for which he was charged and found guilty, convicted and sentenced.
On whether the trial Court properly considered and evaluated the defence of the Appellant of being an agent to a disclosed principal.
It is settled law that evaluation of evidence and the ascription of probative value thereto reside within the province of the trial Court that saw, heard and assessed the witnesses and that where a trial Court unquestionably evaluates the evidence and justifiably appraise the fact, it is not the business of the Appellate Court to substitute its own views for the view of the trial Court. The Court will only interfere where there is insufficient evidence to sustain the judgment, or where the trial Court fails to make proper use of opportunity of seeing, hearing and observing the witnesses or where the findings of fact of trial Court cannot be regarded as resulting from the evidence or where the trial Court has drawn wrong conclusion from accepted evidence or has taken an erroneous view of the evidence adduced before it or its finding are perverse in the sense that they do not flow from accepted evidence or are not supported by evidence before the Court. See the case of OBA ADEBAJO MAFIMISEBI & ANOR V. PRINCE MACAULAY EHUWA & ORS. NSCQLR Vol. 29 (2007) 410 at 417. Further to the foregoing, where the complaint centers on assessment or consideration of documentary evidence tendered in the proceeding or non evaluation of the documents tendered the Appellate Court is not foreclosed.
Having said this and considering the argument and complaint of the Appellant which centers around failure on the part of the trial Court to consider Exhibit DF1 and DF2 and the admissibility of Exhibit ?G? which is an analyst report tendered through a witness other than the analyst and the witness not coming from the office of the analyst, vest competence on this Court to consider whether or not the trial Court properly evaluated the evidence before it. I accordingly so hold.
In determining issue number one, I dealt with the issue of liability of a disclosed principal for the acts of the agent in the course of his employment. My finding and conclusion that the Appellant is an agent of a disclosed principal and in the instant appeal Chipet International Company and Mr. Peter Chinedu, the Managing Director and DW1 in this case adequately provides answer to this issue number two which questions the fact of whether or not the trial Court properly consider and evaluated the defence of the Appellant that he is an employee of Chipet International Company and DW1. Mr. Peter Chinedu. Let me for avoidance of doubt reiterate that the learned trial Judge failed and neglected to consider the defence of the Appellant even in the face of the evidence of DW1 who unequivocally said the Appellant is his employee and that he was arrested while carrying out the duty assigned to him by the company. Accordingly, I adopt and apply my finding and conclusion in issue one and apply same in toto to issue 2.
On issue of Exhibit G, my reaction is that, since the Appellant has been held to be an agent of a disclosed principal and that he ought not be held liable for the authorised act of his disclosed principal, it therefore stand to reason that he cannot be held liable for the alleged adulterated petroleum product contained in the truck with Registration number XR 652 ENU discharging petroleum product at Chipet Petrol Station. This exonerated the Appellant. Apart from stating that the Appellant is his employee, he also confirm the evidence of the Appellant that he was instructed to deliver the petroleum product in the said truck to the company’s petrol station (Chipet petrol station). It can therefore not be a product of reasoning in the circumstance of the foregoing to hold the Appellant culpable for allegedly dealing with, adulterated petroleum product.
The Appellant for all intent and purposes is not the dealer. Rather and if need be it is Chipet company and DW1 that ought to be confronted and not the Appellant. They are the ones licensed to deal in petroleum product. The learned trial Judge failed to give adequate consideration to the evidence of DW1, and the defence of the Appellant therein stating that he is an employee of DW1. In my humble view, the finding of the learned trial Judge has occasioned a grave miscarriage of justice against the Appellant. Rather, justice has found itself in a wrong carriage. The decision of the learned trial Judge is prejudicial and inconsistent with the legal right of the Appellant as an employee of a disclosed principal. See the case of ONAGORUWA V. THE STATE (1993) 7 NWLR (Pt. 303) 49; OJO V. ANIBIRE (2004) 5 SC. (Pt.1) 1; IROLO V. UKA (2002) 7 SC. (Pt. 11) 77.
In the light of the foregoing, it therefore suffice to say that the judgment of the trial Court is against the weight of evidence adduced before the Court. I accordingly, so hold.
Accordingly, issues 2, 3 and 4 are resolved against the Respondent and in favour of the Appellant. In consequence, I find the appeal meritorious and I allow it.
The judgment of the trial Court (Federal High Court, Asaba Judicial Division, in charge No. FHC/ASB/5C/2014 delivered on 19th day of February 2016 be and is hereby set aside.
The conviction and sentence of the Appellant are hereby quashed. I order that the Appellant should be set free forthwith.
Further to this the order of forfeiture of the truck with Registration No. XR 652 ENU to the Federal Government of Nigeria is also set aside. In its place, the said vehicle should be released to the Managing Director Chipet International and Chipet Pure Energy Limited forthwith.
JIMI OLUKAYODE BADA, J.C.A.: I had the advantage of reading in draft a copy of the lead Judgment of my Lord, MUDASHIRU NASIRU ONIYANGI, JCA just delivered.
I agree entirely with the reasons given therein as well as the conclusion that there is merit in the appeal.
I adopt the Judgment as mine and I also allow the appeal.
PHILOMENA MBUA EKPE, J.C.A.: I have had the opportunity of reading before now the judgment just delivered by my learned brother M. N. ONIYANGI, JCA. I agree with all the reasoning and conclusion arrived therein that this appeal is meritorious. I too, allow the appeal and in consequence, the judgment of the lower Court in Charge No. FHCIASBI5C/2014 delivered on the 19th day of February, 2016 be and is hereby set aside.
I, too abide by the orders in the lead judgment.
Appeal allowed.
Appearances:
C. I. Okoye For Appellant(s)
O. F. Okail For Respondent(s)
