MUSA v. C.O.P (2020)

MUSA v. C.O.P

(2020)LCN/14159(CA)

In The Court Of Appeal

(ABUJA JUDICIAL DIVISION)

On Friday, May 29, 2020

CA/A/239C/2016

Before Our Lordships:

Adamu Jauro Justice of the Court of Appeal

Mohammed Ambi-Usi Danjuma Justice of the Court of Appeal

Bitrus Gyarazama Sanga Justice of the Court of Appeal

Between

DANLADI MUSA APPELANT(S)

And

COMMISSIONER OF POLICE RESPONDENT(S)

RATIO

STANDARD OF PROOF IN CRIMINAL TRIALS

The law is long settled that in a criminal trial, the prosecution is duty bound to prove it’s case beyond reasonable doubt. This is the import of Section 36 (5) of the Constitution of the Federal Republic of Nigeria 1999 (as amended) which presumes an accused innocent until he is proven guilty. The burden placed on the prosecution is not discharged until the guilt of the accused person is properly established. See IDEMUDIA V. THE STATE (1999) 7 NWLR (Pt. 610) 202 at 215 F-G; ESANGBEDO V. THE STATE (1989) 4 NWLR (Pt. 113) 57. PER JAURO, J.C.A.

PROOF OF THE OFFENCE OF INTIMIDATION AND MISCHIEF

The parties are ad idem that to prove the offence of intimidation, the prosecution is duty bound to prove the following ingredients:
1. That the accused person threatened the complainant or some other person.
2. That the threat was of some injury to him.
3. That it was given to cause him harm to him or to cause him not to do or omit to do any act which is legally entitled to, or bound to do.

Also, the parties are also not contending the fact that to establish the offence of mischief, the following element must be established by the prosecution:
1. That the thing in question is a property.
2. That the accused caused its destruction or such damage therein or in the situation thereof has destroyed or diminished its value or utility or affected injuriously.
3. That the accused did so intending to know that he was likely to cause loss or damage to the public or any person.
4. That the loss or damage was wrongful. PER JAURO, J.C.A.

MEANS BY WHICH THE PROSECUTION CAN PROVE ITS CASE AGAINST AN ACCUSED PERSON

The law is settled that the prosecution can prove its case against the accused person by all or any of the following means:
a) Evidence of any eye witness of the crime;
b) Confession or admission when voluntarily made by the accused; and
c) Circumstantial evidence which is positive, compelling and points to the conclusion that the accused committed the offence. See the case of OJO V. STATE (2018) LPELR – 44699 (SC). PER JAURO, J.C.A.

THE PLEA OF ALIBI

A plea of Alibi, if found to be true is complete defence which absolves the accused person of the charge. If an accused person raise a defence of Alibi, that is he was somewhere else other than the locus delicti at the time of the commission of the offence and give some facts and circumstances of his where about, the prosecution is duty bound to investigate it to verify its truthfulness or otherwise. It is not enough for the accused to boldly allege that he was somewhere else without specifically giving the address of that place, the person or persons he was with at that other place and the time he was at that place when the offence was committed. See MOHAMMED V. STATE (2015) LPELR 24397 (SC); ADEBIYI V. STATE (2016) LPELR 40008 (SC); AGU V. STATE (2017) LPELR 41664 (SC); ALIYU V. STATE (2013) LPELR 20748 (SC).

For the defence of Alibi to be properly raised it must be raised at the earliest opportunity, when an accused person is confronted by the police with the commission of an offence so that the police will be in a position to check the Alibi, otherwise such a plea of Alibi could be disregarded. The Appellant, in his extra-judicial statement made to the police, he never raised the defence of alibi but only did for the first time in Court. PER JAURO, J.C.A.

WHETHER OR NOT AN EYE WITNESS WHO CLAIMS TO KNOW AN ACCUSED PERSON BEFORE THE COMMISSION OF THE OFFENCE MUST MENTION THEIR NAMES AT THE EARLIEST OPPORTUNITY

The law is trite that an eye witness who claims to know an accused person before the commission of the offence must mention their names at the earliest opportunity. Failure to do so would cast a doubt on the guilt of the accused person. See the case of HASSAN V. STATE (2017) LPELR – 43288 (CA); Comm. of Police Vs Tijjani Alao (1956 – 60) WRNLR 39; Zekeri Abudu Vs State (1985) 1 NWLR (part 1) 55; Ani Vs State (2009) 16 NWLR (part 1168) 443. PER JAURO, J.C.A.

ADAMU JAURO, J.C.A. (Delivering the Leading Judgment): This appeal is against the decision of the Kogi State High Court, Ankpa, Coram: Y, Musa and Z.M, Owonibi (JJ) delivered on the 6th day of November, 2015. The Court below sat in its appellate jurisdiction against the judgment of the Senior Magistrate Court, Ankpa wherein in its judgment, it affirmed the conviction and sentence of the Appellant by the trial Court for the offences of Mischief and intimidation contrary to Sections 327 and 397 of the Penal Code respectively.

BRIEF STATEMENT OF FACTS
The brief statement of facts that culminated into the instant appeal is that on 13/04/2013, One Abdul Jeje (PW1) was at the frontage of his mosque in his house at about 8:00 p.m. in the company of one Abdullahi Idajuma (PW3) and Mohammed Adejo (PW2). It is the case of the Respondent that while PW1 was eating, the Appellant and his co-accused stopped by the side of the mosque, but that the engine of their motor was still on. That Appellant and the other accused persons came down with guns to meet them and were shooting at PW1 and also into his compound. That one Lucky Omale (now at large)

beat and slapped PW1’s child for peeping at them and that Abdullahi Danjuma (PW3) was able to escape and switched off the generator. The Respondent went further to state through the testimonies of PW1, PW2 and PW3 that when the lights went off, the accused persons became afraid and ran away and that the police recovered about 24 used bullets and one unused cartridge from the house of PW1. That the accused shot at PW1’s building and the roof of the building was perforated from the gun shots.

It is the case of the Appellant that there is a land dispute between one Jacob Ahiaba (the 1st accused at trial) and relations of one Abdul Jeje who testified as PW1. It is the case of the Appellant that PW1 told the 1st accused person to leave the land for his brother (PW1’s brother) but the 1st accused said that the land belonged to his father. The Appellant testified that he told both parties that the land in dispute belongs to the 1st accused person and not the brother of PW1. It is the case of the Appellant that when PW1 started the troubling the 1st accused, the latter reported them to A/C of Idah Police Station. He stated further that PW1

boasted that he was going to deal with him since the 1st accused had taken them to the police station. That PW1 took him and others to Idah without any wrongful act done. He testified that on 13/04/13, he returned from the farm, took his bath and went to bed. And that at the break of the next day, he went back to his farm and that he did not go to PW1’s house on date of the incident.

Upon the close of trial and the address of counsel, the trial Court in its considered judgment delivered on 5th March, 2014 found the Appellant guilty of the offences charged and convicted him accordingly.

Dissatisfied with the decision of the trial Court, the Appellant appealed to the Court below and in its judgment at pages 75 – 81 of the record of appeal, the Court below dismissed the Appellant’s appeal and affirmed the decision of the trial Court. To further express his dissatisfaction as he is entitled to under Section 241 of the Constitution of the Federal Republic of Nigeria 1999 (as amended), the Appellant invoked the appellate jurisdiction of this Court vide a Notice of Appeal containing four grounds of appeal (See pages 82 – 84 of the

record of appeal). The said Notice of Appeal is dated 1st February, 2016 and filed 5th February, 2016.

In line with the Rules of this Court, parties filed and exchanged their respective briefs of arguments. The Appellant’s Brief of Argument is dated 25th September, 2017 and filed on 28th September, 2017. The said Brief was settled by I. IBRAHIM ESQ. who at paragraph 3.01 of the Appellant’s brief distilled two issues for the determination of the appeal to wit:
1. “Whether the lower Court was correct in affirming the conviction and sentence of the Appellant when the prosecution had failed to prove the guilt of the Appellant beyond reasonable doubt.
2. Whether the lower Court properly gave consideration to the issues before it and whether such failure does not amount to denial of fair hearing.”

The Respondent’s Brief on the other hand is dated 3rd April, 2020 and filed on 6th April, 2020. The said Brief was settled by BAMADA KADIRI ESQ. (AG. DIRECTOR, CORPORATE AFFAIRS, MINISTRY OF JUSTICE, KOGI STATE) who at 3.1 of the Respondent’s brief also distilled two issues for the determination of the appeal to wit:

“Whether from the evidence on record, the lower Court was right in affirming the decision of the trial Court by dismissing the Appellant’s appeal.
2. Whether the defence of Alibi avails the Appellant even when he was unequivocally pinned down to the scene of crime and the defence was not raised at the earliest opportunity.”

The appeal was heard on 30th April, 2014 wherein counsel adopted their respective briefs and made oral adumbrations in respect of their various postures in the appeal.

APPELLANT’S ARGUMENTS
On issue 1 distilled by the Appellant, counsel argued that the law is trite in every criminal trial that the burden of proof is on the prosecution and the standard is proof beyond reasonable doubt. He argued further that the prosecution is duty bound to prove all the ingredients of the offences charged against the Appellant and that where one of the ingredients is not proved; the Accused is entitled to an acquittal. He referred this Court to the case of ALABI V. THE STATE (citation not supplied).

It is the submission of counsel on the offence of criminal intimidation contrary to

Section 397 of the Penal Code, the prosecution is expected to prove the following ingredients beyond reasonable doubt:
a) That the accused threatened the complainant of some other person;
b) That the threat was of some injury to him;
c) And that it was given cause to alarm to or not to cause him to do or to omit to do any act which he is legally entitled to or not bound to do.

Flowing from the hills of the above ingredients, he submitted that the Respondent failed to prove that alarm was caused to any of the PW1, PW2 and PW3 who witnessed the incident. He submitted further that PW1 exaggerated his evidence to the extent that when their assailants were shooting him, PW2 held PW1 and requested the assailants to shoot them. He referred this Court to page 12 lines 16 – 18 of the record of appeal. It is his submission that none of PW1, PW2 and PW3 proffered any evidence of alarm; rather it was the trial Court that presumed evidence of alarm. He submitted also that there are material contradictions in the evidence of the Respondent’ witnesses especially in the evidence of PW1 and PW2 regarding the shooting incident. He submitted further that

PW1, PW2 and PW3 only stopped at the evidence of how the attackers came to their place when they were at the mosque, but that their evidence as to what transpired between them and the attackers are materially at variance.

It is also the submission of the Appellant’s counsel that the defence of Alibi raised by the Appellant ought to avail him. He submitted that the Appellant said he was at Anyagba on the day of the incident and that he never visited Igodo village long before his case came up. In his final analysis of this issue, he submitted that the Respondent failed to prove the essential ingredients of the offence of criminal intimidation and mischief, that the plea of alibi avails the Appellant and that there are material contradictions in the evidence of the Respondent’s witnesses.

On issue No. 2, it is the submission of counsel that the lower Court failed to consider some vital and fundamental issues raised by the Appellant in his counsel’s argument before the Court. He submitted that the lower Court before delving to analyse the issue formulated by the Appellant’s counsel has already made its mind up when it held that

“the trial magistrate in our view evaluate the evidence proffered by the prosecution and that of the appellants”. It is his further submission that the lower Court having held so had nothing to consider in the issues formulated by the Appellant’s counsel. He submitted that the lower Court failed to consider the contradiction in the evidence of the Respondent’s witnesses and the defence of alibi raised by the Appellant. He submitted further that the Respondent’s witnesses never properly identified the Appellant in view of the fact that at the earliest opportunity the names of the attackers were not mentioned. On the whole, he submitted that the lower Court failed to consider and evaluate all the evidence before proceeding to affirm the conviction and sentence of the Appellant.

RESPONDENT’S ARGUMENTS
On whether from the evidence on record, the lower Court was right in affirming the decision of the trial Court, counsel to the Respondent submitted that the Respondent was able to link the Appellant with the commission of the offences of Mischief and Criminal Intimidation contrary to Sections 327 and 397 of the Penal Code.

He submitted further that the evidence of PW1 who was a victim of the offence and an eye witness is succinct on this point. He referred the Court to evidence of PW1 during examination-in-chief at page 9, lines 13 – 14 of the record of appeal and his evidence under cross-examination at page 11, lines 15 – 17 of the record appeal.

It is also the contention of counsel that the evidence PW2 and PW3 corroborated that of PW1 during trial by stating that they were all battered by the Appellant and his co-accused persons. He submitted that PW3 testified that he recognized the accused immediately because they are from the same village and that the only person he did not recognize is the driver of the jeep that conveyed them to the scene of crime. It is the submission of counsel that the evidence of PW4, PW5 and PW6 is to the effect that house of PW1 and its roof were damaged. He submitted further that from the evidence adduced by the Respondent’s witnesses, the guilt of the Appellant was proved beyond reasonable doubt.

Reacting to the submission of counsel to the Appellant on the issue of contradictions in the case of the

Respondent’s witnesses, counsel submitted that contradiction occurs when a piece of evidence affirms or direct opposite of what the other evidence has stated. He submitted further that a minor discrepancy does not amount to contradiction and that minor discrepancies in date, location, difference in details, where one evidence is short or contains little more than the other, the style and manner of narration is different do not amount to contradiction. He argued that for a contradiction to affect the case of the prosecution, the contradiction must affect the root or the material ingredients of the offence. He referred this Court to the case of AKPA V. STATE (2007) 2 NWLR (Pt. 1020) 500 at 520 – 521 paras A – D; JEREMIAH V. STATE (2012) 14 NWLR (Pt. 1320) 248 at 272 Paras. C – E.

He submitted that the name of the Appellant and his co-accused was mentioned by PW1 at the earliest opportunity. He submitted that although the statement of PW1 was tendered in evidence but the Appellant’s counsel failed to cross-examine him to show that the statement of the Appellant was not mentioned at the earliest opportunity. He referred this

Court to the case of NWUBA V. OGBUCHI (2008) 2 NWLR (Pt. 1072) at 481 para. E – F; SECTION 232 OF THE EVIDENCE ACT 2011 (AS AMENDED).

He therefore urged this Court to hold that there is no contradiction in the oral evidence of the prosecution witnesses and their extra-judicial statements and he prayed this Court to resolve the issue one is favour of Respondent.

On issue No. 2, it is the submission of counsel that the Appellant did not raise the defence of alibi at the earliest opportunity when their extra-judicial statements were recorded. He submitted that where the defence of alibi is not raised at the earliest opportunity, same cannot avail the accused person and the police is not expected to investigate it. He referred this Court to the case of EYISI V. STATE (2000) 12 SC (Pt. 1) 24 at 40; DOGO V. STATE (2001) 1 SC (Pt. 11) 30 at 40 & 46; ESANGBEDO V. STATE (1989) 3 NSCC 23 at 41.

It is the submission of counsel that it is explicit on record that PW1, PW2 and PW3 specifically and unequivocally pinned down the Appellant to the scene of crime and showed that the Appellant and his co-accused actually committed the offence.

On the issue of proper evaluation of evidence, counsel argued that it is trite that evaluation of evidence is the primary duty of the trial Court. He submitted that the trial Court properly evaluated all the evidence before it as rightly upheld by the lower Court. He urged this Court to resolve all the issues in favour of the Respondent, uphold the judgment of the lower Court and dismiss the appeal.

RESOLUTION
I have perused the record of appeal compiled and duly transmitted in this case; the brief of arguments filed by both parties as well as the issues distilled for determination across the divide. I have also reviewed the evidence adduced at the trial which was relied upon by the trial magistrate in reaching his decision which was affirmed by the Court below.

Thus; having considered the issues so formulated by the parties and the grounds of appeal duly filed by the Appellant, I am of the opinion that the understated issue would suffice in the determination of this appeal:
“Whether from the totality of the evidence adduced by the Respondent, the lower Court was right in affirming the decision of the trial Court?”

The Appellant along with two others were charged with the offences of intimidation and mischief contrary to Sections 397 and 327 of the Penal Code Law. In a bid to discharge the evidential burden imposed on it by law, the Respondent called six witnesses and tendered several exhibits. The Appellant testified in his defence. The parties are ad idem that to prove the offence of intimidation, the prosecution is duty bound to prove the following ingredients:
1. That the accused person threatened the complainant or some other person.
2. That the threat was of some injury to him.
3. That it was given to cause him harm to him

or to cause him not to do or omit to do any act which is legally entitled to, or bound to do.

The law is settled that the prosecution can prove its case against the accused person by all or any of the following means:
a) Evidence of any eye witness of the crime;
b) Confession or admission when voluntarily made by the accused; and
c) Circumstantial evidence which is positive, compelling and points to the conclusion that the accused committed the offence.
See the case of OJO V. STATE (2018) LPELR – 44699 (SC).

To ascertain whether the Respondent has discharged the burden and

standard of proof is a question to be determined after revising the evidence adduced at trial. The first port of call is the evidence of PW1, one Abdul Jeje. PW1 testified at pages 9 – 12 of the record of appeal. The summary of his testimony is that on 13/04/2013, he was at the frontage of his mosque in his house at about 8:00 p.m in the company of one Abdullahi Idajuma (PW3) and Mohammed Adejo (PW2). He testified that while eating, the Appellant and others came to meet them in a red coloured jeep, alighted from the said jeep and were shooting at him and into his compound. That one Lucky Omale (now at large) beat and slapped his child for peeping at them. Under cross-examination at page 11 of the record of appeal, PW1 testified that:
“It is true I said the accds. (sic) shot at me. God did not allow the bullet to penetrate me. It was the 1st accused that first shot at me. It was when the light went off, that the accds. started going away, that we ran into the bush. The accds. were equally beating me and my brothers.(sic)”

One Mohammed Adejo also testified as PW2. His testimony can be gleaned at pages 13 – 14 of the record of

appeal. His evidence substantially accords with that of PW1. In similar vein, one Abdullahi Danjuma testified as PW3. His evidence can be found at pages 15 – 16 of the record of appeal. I have placed side by side the evidence of PW1, PW2 and PW3 who were all eye witnesses and I am of the opinion that their testimonies are similar in substance if not the same. The evidence of PW4, one Cpl. Bosede Babatunde with force No. 384052 attached to the Nigerian Police Station Abejukolo Omala L.G.A is also instructive on this note. In her testimony at pages 17 – 20 of the record of appeal, she testified that:
“…I recorded the statement from the Pw1. I also recorded statement from the witness. I book and visited the scene of crime. While at the scene, one use AK.47 was recovered. We also recovered 21 empty shell of AK47 ammunition was recovered. I sought the assistance of a photographer, and the scene was photographed. This time the entire suspects were at large. Later there was a message from the A/C that the case should be transferred to Idah. The case diary was then transferred to Idah for further investigation. The scene of crime is the

compound of PW1 Igodo – Ogudu. I discovered that the wall of the building of PW1 was perforated by the bullet from the AK47. The zinc or roof was also damaged.”

The statements of the Appellant and his co-accused and the live ammunition and the empty shell of the ammunition were tendered by the Respondent through PW5, Corporal Aboh Onuh. PW5 testified under cross-examination at page 21 of the record of appeal that:
“The scene of crime is at Ogodu village. At the scene, I walk round and saw the damage of the gun shot on the wall of the PW1 building and also the damage to the roof.”

The above testimony of PW5 corroborates the evidence of PW1 and that of PW4 that the wall of the building of PW1 was perforated by gunshots and the roof was also damaged. In evaluating the evidence of the Respondent’s witnesses, the trial Court held at page 55 of the record of appeal as follows:
“In the instant case, the crux of the matter against the accuseds is that the complainant said, the accused came into his compound, shot at him, and also shot severally into his compound thereby destroying the wall and roof of his building.

The issue is whether the evidence adduced by the prosecution witnesses has proved the offences of intimidation and mischief against the suspects. The complainant said, he was shot at, by the accds.(sic). The accds equally shot sporadically into his compound. Does the act of shooting constitute the offence of intimidation? Yes, if there was an act of shooting, definitely it is capable of creating alarm or be of injury to another person.
From the prosecution evidence, it will be hard to conclude that the essential elements have not been proved.”

Counsel to the Appellant argued at paragraph 4.13 of the Appellant’s Brief that the defence of Alibi raised by the Appellant ought to avail him. It is important to state that this issue was also considered by the trial Court and also by the Court below.

The law is trite that in a criminal matter, a trial Court is duty bound to consider all the possible defences available to an accused person. The Appellant during trial testified that on 13/04/13, he returned from the farm, he took his bath and went to bed and that at the break of down the next day, he went back to his farm and that he

did not go to PW1’s house that day. (See page 35 of the record of appeal).

of Alibi could be disregarded. The Appellant, in his extra-judicial statement made to the police, he never raised the defence of alibi but only did for the first time in Court.

Looking at this issue from another judicial lens, the law is also trite that once it is found as a fact by the Court that the evidence of the prosecution positively, unequivocally and irresistibly points to the guilt of an accused as in the instant case, the defence of Alibi becomes of no moment. See OLAYODE V. STATE (2019) LPELR – 47879 (CA).
The trial Court at page 57 of the record held as follows:
“The 3rd accd. (sic) told the Court, that from January 2013 – April 2013, he had never set his foot at Igodo village. The question is where were the 3rd accd. was on the evening of 13/04/13, when this incidence took place.
From the totality of the defence of the 1st, 2nd and 3rd acccd., non has told this Court nor the police where they were and with whom on the evening of 13/04/13. I am of the opinion that the defence of alibi raised by the defence is not watertight. Mere dial is not enough, as the law requires the accuseds to give details of their

where about at the material time of the offence. This failure of the accds. is fatal to their defence.”
The immediate Court below on this issue also held at page 81 of the record of appeal as follows:
“The age of relying on minor contradiction in prosecution evidence leading to acquittal of a criminal has gone. The practice now laid down in plethora of Supreme Court case authorities is substantial justice and not technical justice. In the case of VICTOR V. THE STATE (2013) 6 SCNJ 32 at 34 Holden 3, the Supreme Court stated “I dare say on a strong authority that when accused person is fixed at the scene of the commission of the crime, the plea of alibi fails.
In the case of ILIYASU V. THE STATE (2015) 2 SCNJ 223 at 229 holding 15, 16, 17 & 18. The Supreme Court gave elaborate and vivid explanation in respect of when alibi can avail the accused a discharge and acquittal and when it may not avail him as expected. Having observed the Senior Magistrate’s decision in this case, we are of the view there is not any compelling reason/reasons to interfere with it based on the prosecutions adduced evidence.”

Flowing from forgoing pronouncement of the trial Court and that of the Court below, I am of the firm view that their reasoning are well rooted in law and facts and I have no reason whatsoever to depart from them.

Counsel to the Appellant also submitted at paragraph 4.13 of the Appellant’s Brief that PW1 never mentioned the name of the Appellant or other persons who came to attack them to PW4 since it is obvious that the Appellant and his co-accused are known to both PW1 and PW6. The law is trite that an eye witness who claims to know an accused person before the commission of the offence must mention their names at the earliest opportunity. Failure to do so would cast a doubt on the guilt of the accused person. See the case of HASSAN V. STATE (2017) LPELR – 43288 (CA); Comm. of Police Vs Tijjani Alao (1956 – 60) WRNLR 39; Zekeri Abudu Vs State (1985) 1 NWLR (part 1) 55; Ani Vs State (2009) 16 NWLR (part 1168) 443.
I would have been persuaded by the submissions of the Appellant’s counsel as to the fatality of the failure of PW1 to mention the name of the Appellant to PW6 at the earliest opportunity if not for the fact that the

Appellant did not tender the statement of PW1 made at the earliest opportunity to afford this Court the opportunity of ascertaining with precision that indeed the name of the Appellant was omitted by PW1 in his statement made to the police at the earliest opportunity. However in the testimony of PW4, who took the statements of PW1 at Abejukolo Police Station where the incident was first reported testified under cross-examination at page 20 of the record of appeal as follows:
“I recorded their statements. PW1 told me that a person shot at him, but I can’t remember the name again.”
Section 232 of the Evidence Act 2011 is instructive on this note. The said section provides that:
“A witness may be cross-examined as to his previous statements made by him in writing or reduced in writing and relative to the matter in question in the suit or proceeding which he is cross-examined without such writing being shown to him or being proved; but if it is, intended to contradict such witness by the writing, his attention must, before such writing can be proved, or such contradictory proof given, be called to those parts of the writing

which are to be used for the purpose of contradicting him.”
From the testimony of PW4 under cross-examination and the provision of Section 232 of the Evidence Act (supra), I am satisfied that by the failure of the Appellant Counsel to tender the statements made at the earliest opportunity by PW1 at the Abejukolo Police Station to enable the Court ascertain the contradiction is fatal to the case of the Appellant.
Assuming that the PW1 failed to mention the name of the Appellant and his co-accused at the earliest opportunity, this does not mean that where an eye – witness evidence omits to mention at the earliest opportunity the name or names of persons seen committing the offence the Court cannot convict on it. The principle mandating a witness to mention the name of the accused person at the earliest opportunity is only to the effect that the Court must be careful in accepting such evidence. See the case of EGWEMI V. STATE (2010) LPELR – 4080 (CA).

I am not also oblivious of the submissions of learned counsel to the Appellant that the case of the Respondent’s witnesses is fraught with inconsistencies capable of leading to a

discharge and acquittal of the Appellant. Having carefully perused the evidence led by the Respondent’s witnesses, I find it hard to be on the same page with counsel to Appellant regarding the contradictions in the case of the Respondent. Even if there are any contradictions which I doubt, I am of the considered opinion that the said contradiction is incapable of deducting from the credibility of the cogent and credible evidence led by the Respondent in proving the guilt of the Appellant beyond reasonable doubt. The law has crystallized in our jurisdiction that proof beyond reasonable does not amount to proof beyond every shadow of doubt. If the later were to be the standard required to secure the conviction of an accused person, I doubt if any conviction could be passed by our criminal Court against offenders.

The law is trite that evaluation of evidence and ascription of probative value are the primary duties of the trial Court. The appellate Court has no business in interfering with the evaluation of evidence unless it is shown that the trial Court abdicated its duty or failed to properly evaluate the evidence or that its findings are perverse.

See ATOLAGBE V. SHORUN (1985) LPELR-592 (SC) AT 31 (C-D).
The trial Court in my opinion elaborately and dispassionately considered the issues of the parties and its decision is firmly rooted in law and facts.

Counsel to the Appellant submitted at paragraph 5.04 that the lower Court before delving to analyse and consider the issue formulated by the Appellant has already concluded and made its mind when it held that “the trial magistrate in our view evaluated the evidence proferred by the prosecution and that of the appellant”. I am of the opinion that this is a matter of style in judgment writing. This issue is essentially a matter of style and has nothing to do with the substance of the case. There is no dogmatic style in writing judgment. As a matter of fact, every Court is entitled to its own style of writing its judgments. See the case of ANDREW & ANOR V. INEC & ORS (2017) LPELR – 48518 (SC). I am of the considered opinion that the Court below merely stated that the trial magistrate evaluated the evidence proferred by the prosecution and did not express its opinion as to whether or not the said evaluated evidence was

properly or improperly evaluated.

In my final analysis of this issue, I find that from the totality of the evidence adduced at trial, the guilt of the Appellant for the offences of intimidation and mischief under Section 397 and 327 of Penal Code Law has been established. On the whole, this Court hereby resolves the sole issue distilled for the resolution of the appeal in favour of the Respondent and against the Appellant.

I find no merit in this appeal, same is hereby dismissed. The decision of the High Court of Kogi State sitting in Ankpa delivered by Y, Musa and Z.M, Owonibi (JJ) in Appeal No. AHC/4C/2014 on the 6th day of November, 2015 affirming the conviction and sentence of the Appellant for the offences of intimidation and mischief under Section 397 and 327 of Penal Code Law by the trial Court is hereby affirmed.

MOHAMMED AMBI-USI DANJUMA, J.C.A.: I have had the benefit of reading before now the draft of the judgment just rendered by My Lord, Adamu Jauro, JCA dismissing this appeal. A study of the record of Appeal alongside the respective Briefs of Argument filed and adopted, Justifies the decision of the appellate High Court, Idah

when it affirmed the decision of the Magistrate Court in the conviction and sentence for the offences of criminal intimidation and mischief, as charged.

The facts established by evidence, were such that the appeal has no merit in that the Alibi setup was not proved; eye witness evidence is the best evidence; it existed.
I concur.

BITRUS GYARAZAMA SANGA, J.C.A.: I agree.

Appearances:

A. Ejembi Esq. – for Appellant For Appellant(s)

Mr. Ibrahm Sanni Mohammed SAN, Hon Attorney General & Commissioner for Justice Kogi State, with him, Badama Kadiri Esq. Ag. Director Corporate Affairs, Stanley Atule Esq., Asst. Director, Maryam Otaru Esq. Principal Legal Officer, O. J. Etubi Esq. Legal Officer and Friday Ameh Esq Legal Officer – for Respondent For Respondent(s)

LawCare Nigeria

admin

YOU MAY HAVE MISSED

RENEWABLE ENERGY LAWS IN NIGERIA

REQUIREMENTS FOR A FOREIGN COMPANY INVESTING IN NIGERIA

HOW TO HIRE THE RIGHT COMMERCIAL LAWYERS IN NIGERIA

OVERVIEW OF COMMON LAND DOCUMENTS IN NIGERIA

admin

Related Story

YOU MAY HAVE MISSED