MUSTAPHA UMAR GWARZO v. COMMISSIONER OF POLICE (2014)

MUSTAPHA UMAR GWARZO v. COMMISSIONER OF POLICE

(2014)LCN/7327(CA)

In The Court of Appeal of Nigeria

On Friday, the 27th day of June, 2014

CA/K/274/C/2011

RATIO

COURT: DISQUALIFICATION OF JUDGE OR MAGISTRATE HANDLING A TRIAL; THE NORMAL PROCEDURE WHERE A JUDGE OR MAGISTRATE HANDLING A TRIAL IS DISQUALIFIED
Where a Judge or Magistrate handling a trial is disqualified, for one reason or another, from continuing with the hearing of the matter, the normal procedure is that the case file is sent back to the Chief Judge for reassignment to another Judge or Magistrate who will commence the trial of the matter de novo – Estisione H. Nigeria Ltd Vs Osun State Government (2012) LPELR-7938 (CA). It is not permissible for a Judge or Magistrate to take over a part heard matter and to continue the hearing from where the last Judge or Magistrate stopped; he ought to start the case de novo. This is because judgment of a court must be based upon sound and credible evidence heard by the particular Judge or Magistrate who writes it, otherwise it will not be no more than a moot trial – Agbeotu Vs Brisibe (2005) 10 NWLR (Pt 932) 1 and Danish Car Carriers & Anor Vs Sura & Company (Nigeria) Ltd & Anor (2011) LPELR-4018 (CA). This is in consonance with the provisions of Section 40 of the Magistrate Court Law of Kano State which requires every proceeding in the court to be heard and disposed of by a single Magistrate and who shall determine all questions of fact and law. One of the rationale for this principle is that upon the transfer of the matter, the evidence taken by the previous Magistrate ceases to be relevant in the subsequent proceedings and cannot be relied upon, except in circumstances provided in Section 46 (1) of the Evidence Act 2011 (formerly Section 34 (1)) which provides that:
“Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is admissible for the purpose of proving in a subsequent judicial proceeding or in later stage of the same judicial proceeding, the truth of the facts which it states when the witness cannot be called” because the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or when his presence cannot be obtained without an amount of delay or expense which, in the circumstances of the case, the court considers unreasonable – Elegushi Vs Oseni (2005) 14 NWLR (Pt 945) 348, Dada Vs Bankole (2008) 5 NWLR (Pt 1079) 26, Ameyo Vs Oyewole (2008) LPELR – 3768(CA), Danish Car Carriers & Anor Vs Sura & Company (Nigeria) Ltd & Anor supra. per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

COURT: TRANSFER OF CRIMINAL TRIAL; THE IMPORTANT STEP TO BE TAKEN IN THE PROSECUTION OF A PERSON ACCUSED OF COMMITTING A CRIME IN A CRIMINAL TRIAL IS ARRAIGNMENT IS TRANSFERRED FROM ONE MAGISTRATE TO ANOTHER MAGISTRATE
The first most important step to be taken in the prosecution of a person accused of committing a crime in a criminal trial is arraignment. Where a criminal trial is transferred from one Magistrate to another Magistrate, the other Magistrate is obligated, in starting the matter de novo, to arraign the accused person afresh and it is irrelevant that the first Magistrate had earlier arraigned and recorded the plea of the accused person before the transfer of the matter – Federal Republic of Nigeria Vs Bulama (2005) 16 NWLR (Pt 951) 31, Iche Vs State (2013) LPELR – 22035(CA). The arraignment of an accused person before a Magistrate Court of any other Court involves the presentation of the person or suspect unfettered and the charge is read over and interpreted to him by the Registrar of the court to the satisfaction of the court and the accused person is called upon to plead to the charge – Lufadeju Vs Johnson (2007) All FWLR (Pt 371) 1532, Olabode Vs The State (2009) 11 NWLR (Pt.1152) 254.
per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

COURT: DUTY OF THE COURT; THE PRIMARY DUTY OF A TRIAL COURT TO EVALUATE EVIDENCE AND ASCRIBE PROBATIVE VALUE TO IT

It is the primary responsibility of a trial, court to hear the parties, watch and observe the demeanour of witnesses called to testify before it, admit or reject documents tendered, ascribe probative value to the evidence and then come up with a decision.
Evaluation of evidence entails the assessment of evidence so as to give value and quality to it. It involves a reasoned belief of the evidence of one of the contending parties and disbelief of the other or a reasoned preference of one version to the other. There must be on record how the court arrived at its conclusion of preferring one piece of evidence to the other – Idakwo Vs Nigerian Army (2004) 2 NWLR (Pt.857) 249, Oyekola Vs Ajibade (2004) 17 NWLR (Pt 902) 356, Imoh Vs Onanuga (2013) 15 NWLR (Pt 1376) 139 and Al-Mustapha Vs State (2013) 17 NWLR (Pt.1383) 350. Evaluation of evidence adduced before the court is the exclusive preserve of the trial Court and where the records of proceedings show that a trial Court assessed the evidence produced before it and accorded probative value to them and placed them side by side on an imaginary weighing scale before coming to a conclusion and making a finding of fact on side of the evidence that tilts the scale, such a finding must be accorded due weight so long as it is not unreasonable and not perverse. per. HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.

COURT: INTERFERENCE; WHETHER AN APPELLATE COURT WILL NOT INTERFERE WITH THE FINDINGS OF THE TRIAL COURT UNLESS IT IS PERVERSE AND WHEN A DECISION OF A COURT IS SAID TO BE PERVERSE

In other words, an appellate Court will not interfere with the evaluation of evidence carried out by a trial Court and will not substitute its own views for that of the trial Court unless the conclusion reached from the facts is perverse – Ajibulu Vs Ajayi (2014) 2 NWLR (Pt.1392) 483, Ikumonihan Vs State (2014) 2 NWLR (Pt 1392) 564.

JUSTICES

DALHATU ADAMU Justice of The Court of Appeal of Nigeria

CFR Justice of The Court of Appeal of Nigeria

ITA GEORGE MBABA Justice of The Court of Appeal of Nigeria

HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria

Between

MUSTAPHA UMAR GWARZO Appellant(s)

AND

COMMISSIONER OF POLICE Respondent(s)

HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A. (Delivering the Leading Judgment): This is an appeal against the judgment of the High Court of Kano State sitting in its Appellate Judicial Division in Suit No K/5CA/2011 delivered by Honourable Justice Wada Abubakar Omar Rano and Honourable Justice Usman M. Na’Abba on the 11th of July, 2011.
The case leading up to this appeal was commenced in the Chief Magistrate Court of Kano State. The Appellant was arraigned by the Respondent before the Chief Magistrate Court on the 15th of July, 2007 on a First Information Report on two counts of criminal breach of trust by servant and misappropriation contrary to Sections 309 and 314 of the Penal Code Law. The Appellant denied the information and the matter proceeded to trial and in the course of which the Respondent called five witnesses in proof of its case and the Appellant testified as the first defence witness called six witnesses in proof of his defence. At the conclusion, the Chief Magistrate, His Worship Ali Usman, in a judgment delivered on the 28th of January, 2011 found the Appellant guilty as charged and sentenced him to a fine of N10,000.00 on each count or imprisonment for three years for each count, the sentence to run consecutively. The Chief Magistrate also ordered the Appellant to pay a compensation of N20 Million to the complainant or go to prison for a term of five years in default of payment of the compensation.

The Appellant was aggrieved by the decision and he caused his Counsel to appeal to the Appellate Division of the High Court of Kano State (herein after referred to as the lower Court) by a notice of appeal dated the 1st of February, 2011. The appeal was entertained by the lower Court and it dismissed the appeal as lacking in merit in a considered judgment delivered on the 11th of July, 2011 and it affirmed the sentence passed on the Appellant. The Appellant was again dissatisfied with the judgment and he caused his Counsel to file an appeal to this Court by a notice of appeal dated the 12th of July, 2011. The notice of appeal contained two grounds of appeal. The notice of appeal was subsequently amended and, an amended notice of appeal dated the 16th of January, 2013 was filed and it contained five grounds of appeal. This Court must say that there is some confusion as to the Suit Number of the matter before the lower Court. The notice of appeal and the proceedings before the lower Court carried Suit No K/5CA/2011 while the notice of appeal to this Court, the amended notice of appeal and the briefs of arguments of the parties carry suit No KA/19C/CMA/2008 and the records of appeal carry Suit No KA/19C/2008. Now, since the appeal from the Chief Magistrate Court to the lower Court was filed in 2011, the most plausible suit number of the matter before the lower Court must be Suit No K/5CA/2011.
This court will discountenance the other suit Numbers and overlook the confusion since the parties were not misled by it. This Court must, however, say that it behoves parties to exhibit great care in preparation of their processes as such details as a misstated Suit Number may on certain occasions render an appeal incompetent.
In arguing the appeal before this Court, Counsel to the Appellant presented a brief of arguments dated the 7th of June, 2013 and filed on the 13th of June, 2013. The brief of arguments of the Respondent was dated the 23rd of July, 2013 and it was filed on the 24th of July, 2013. Counsel to the Appellant filed a reply brief of arguments dated the 12th of November, 2013 and filed on the 26th of November, 2013. The reply brief was deemed properly filed on the 27th of February, 2014. At the hearing of the appeal, Counsel to the parties relied on and adopted their respective briefs of arguments.
Counsel to the Appellant formulated three issues for determination in his brief of arguments and these were:
i. Whether the learned Justices of the Kano State High Court sitting on appeal did not err in law when they failed to hold the entire trial by the Chief Magistrate a nullity being a trial conducted in total breach of the Appellant’s right to fair hearing.
ii. Whether or not the learned Justices of the Kano State High Court were right when they affirmed the improper evaluation of the evidence of the trial Court.
iii. Whether the Kano Sate High Court sitting on appeal was right to affirm the decision of the learned trial Chief Magistrate that was based on the unreliable stock taking done in this matter.
Counsel to the Respondent conceded that there were three issues for determination, but he reformulated the issues thus:
i. Whether the decision of the lower Court to affirm the decision of the learned Chief Magistrate has led to a breach of the Appellant’s right to fair hearing.
ii. Whether the lower Court was wrong to have affirmed the evaluation of evidence by the learned Chief Magistrate.
iii. Whether the stock taking relied upon by the learned trial Chief Magistrate in making the decision which was confirmed by the lower Court was unreliable.

It is obvious that the three issues formulated by the Counsel to the Respondent were the same in essence with the issues formulated by the Counsel to the Appellant.
On the first issue for determination, Counsel to the Appellant stated that it was clear from the records of appeal that the trial of the criminal charge before the Chief Magistrate Court was conducted by two Magistrates, with one hearing part of the evidence and the other concluding the trial Counsel stated that the trial was commenced by Chief Magistrate Karaye and he heard the essential parts of the testimony of the first prosecution witness before he was elevated to the High Court bench and that the matter was thereafter transferred to Chief Magistrate Ali Usman who, upon the application of the Police Prosecutor and without objection from Counsel to the Appellant, continued the trial from where Chief Magistrate Karaye stopped, rather than starting de novo. Counsel stated that by this very act, the Chief Magistrate Court became incompetently constituted to continue the trial and it robbed the Court of requisite jurisdiction and it touched on the pillar of fair hearing because a new Judge cannot take over a part heard matter and conclude same without the benefit of listening to and watching the demeanour of the previous witness who had testified. Counsel referred to the case of Sokoto State Government Vs Kamdex Nig Ltd (2007) All FWLR (Pt 365) 469 and stated further that the issue of competence of a court raises the issue of jurisdiction which cannot be conferred on a court even by acquiescence or agreement of the parties as parties cannot by agreement waive or cure a fundamental defect in the competence of a court.

Counsel stated that it was trite law that where a Court was differently constituted in the course of trial in such a manner that a member of the panel did not heat the entire evidence, the effect on the proceedings is to render it null and void and he referred to the cases of Adgbe & Anor Vs Kusina & Ors (1965) 1 All NLR 260, Tawiah III Vs Ewudzi (1936) 3 WACA 52, amongst others. Counsel stated that the proceedings before the Chief Magistrate Court were a nullity and the lower Court ought not to have affirmed the decision. Counsel stated that the circumstances in this case was not helped by the provisions of section 32 of the Magistrate Court Law of Kano State because the section only applies where the transfer of the matter to another Magistrate was initiated by the present Magistrate hearing the matter and was done with the consent of that other Magistrate, but that in the instant case the former Chief Magistrate was elevated to the High Court bench and did not initiate the transfer of the matter and the transfer was done administratively. Counsel stated that the Appellant suffered a miscarriage of justice by the way and manner the trial was conducted and that the issue of the competence of the Court was raised before the lower Court. Counsel urged this Court to resolve the issue in favour of the Appellant.
In response, Counsel to the Respondent conceded that trial in the matter was commenced by Chief Magistrate Karaye and that when Chief Magistrate Karaye was elevated to the High Court Bench, the matter was transferred to Chief Magistrate Ali Usman who continued the trial from where Chief Magistrate Karaye stopped and he stated that this procedure was right and did not violate the Appellant’s right to fair hearing. Counsel referred to the provisions of Section 32 of the Magistrate Law of Kano Sate and he stated that the provisions gives a Magistrate to whom a case is transferred the option of either continuing the matter or commencing the matter de novo. Counsel stated that the transfer of the matter took place before the first prosecution witness finished his testimony and that the Chief Magistrate Ali Usman had the opportunity of watching the demeanour of all the witnesses and that the application for the continuation of the trial was not objected to by either the Appellant or his Counsel. Counsel stated that the continuation of the trial did not cause a miscarriage of justice and that all the cases cited by Counsel to the Appellant were not relevant to the present case because the facts were different and that while those cases are civil in nature, this matter is criminal and that criminal and civil matters are treated separately and he referred to the case of Okoro Vs State (2012) 1 SCNJ.
The records of appeal show that this issue was raised before the lower Court and the lower Court resolved it thus:
“On the sub-issue of not starting the trial de-novo when the case was transferred to Chief Magistrate Ibrahim Karaye (as he then was) and re-transferred back to Chief Magistrate Ali Usman, there is no evidence from the printed record that the lower court did continue with the case before retransferring it to the lower court that convicted the appellant…. We hold that this did not occasion any miscarriage of justice.” (see page 478 of the records)

It is either the Judges of the lower Court did not read the records properly or were confused on what they read in the records. It is not in contest between the parties, and the records confirm, that the trial in the matter was commenced by Chief Magistrate Karaye (as he then was) and that when Chief Magistrate Karaye was elevated to the High Court Bench, the matter was transferred to Chief Magistrate Ali Usman who did not start the matter de novo but rather continued the trial from where Chief Magistrate Karaye (as he then was) stopped. The records of appeal show that Chief Magistrate Karaye (as he then was) heard the examination in chief of the first prosecution witness and adjourned for cross examination and it was in the course of the adjournment that the Chief Magistrate was elevated to the High Court. The records show that the matter was thereafter transferred to Chief Magistrate Ali Usman and that on the first day the matter came up before the Chief Magistrate, the Police Prosecutor noted that the matter was for cross examination and was a transferred matter and he stated that the Magistrate Court had a discretion to either continue the trial or start de novo under the provisions of the Magistrate Court Law and he urged the Magistrate Court to continue with the trial. The records show that Counsel to the Appellant did not object to the request and the Chief Magistrate granted the request since Counsel to the Appellant was not opposing. The Chief Magistrate Court thereafter took the cross-examination of the first prosecution witness and the full testimonies of four other prosecution witnesses and of the six defence witnesses.
The provisions of the Magistrate Court Law of Kano State, Cap 89, Laws of Kano State 1991 govern transfer of cases between Magistrates and the relevant provisions are Sections 32,35 (1) and 36 of the Law. They read:
“32. A magistrate may at any stage of the proceeding and before final judgment transfer any cause or matter before him to any other magistrate having jurisdiction to try the case with the consent of that other magistrate and such cause or matter shall be continued or commenced de novo, or inquired into or tried and disposed of by that other magistrate as if the case had originally been commenced before him. Provided that no cause or matter which has been specifically transferred by the High Court for inquiry or trial by a magistrate shall again be transferred from the magistrate without leave of the Chief Judge.
35(1) The Chief Judge may, at any time before final judgment and in the interest of justice, transfer any cause or matter before any magistrate to another magistrate or to the High Court.
36. Every order for the transfer of a cause or matter shall operate as a stay of proceedings before the magistrate from whom the proceedings are ordered to be transferred, and the process and proceedings in every such cause or matter and an attested copy of all entries in the books of the court relative thereto shall be transmitted to the High Court or to the court specified in the order, as the case may be, and all further proceedings in the cause or matter shall be taken in that other court as if the cause or matter had been commenced in the other court.”
Looking at these provisions, only Section 32 of the Law talks about the continuation or commencement of a transferred matter de novo. Without determining if Section 32 allows a Magistrate Court to continue a transferred part heard matter from where the previous Magistrate stopped, the first question is whether the transfer that took place in this matter from the first Chief Magistrate to the second Chief Magistrate was in accordance with the provisions of the section. The section covers a transfer of a matter by a Magistrate before whom the matter is pending to another Magistrate with the consent of that other Magistrate. There is nothing on the records of appeal showing that it was Chief Magistrate Karaye (as he then was) who initiated and transferred the matter to Chief Magistrate Ali Usman, with the consent of Chief Magistrate Usman, and the Respondent has not furnished this Court with anything to show that this was what transpired. It is incumbent on a party seeking to take benefit of a procedure provided for in a statute to bring his case within those covered by that statute – Saleh Vs Monguno (2003) 1 NWLR (Pt 801) 221 at 262 D-F, United Bank of Africa Vs Ekpo (2003) 12 NWLR (Pt 834) 332 at 342 G-H and Ojong Vs Duke (2003) 14 NWLR (Pt 841) 581 at 618 C-E. The provisions of Section 32 of the Magistrate Court Law are thus not directly relevant in this matter.
Where a Judge or Magistrate handling a trial is disqualified, for one reason or another, from continuing with the hearing of the matter, the normal procedure is that the case file is sent back to the Chief Judge for reassignment to another Judge or Magistrate who will commence the trial of the matter de novo – Estisione H. Nigeria Ltd Vs Osun State Government (2012) LPELR-7938 (CA). It is not permissible for a Judge or Magistrate to take over a part heard matter and to continue the hearing from where the last Judge or Magistrate stopped; he ought to start the case de novo. This is because judgment of a court must be based upon sound and credible evidence heard by the particular Judge or Magistrate who writes it, otherwise it will not be no more than a moot trial – Agbeotu Vs Brisibe (2005) 10 NWLR (Pt 932) 1 and Danish Car Carriers & Anor Vs Sura & Company (Nigeria) Ltd & Anor (2011) LPELR-4018 (CA). This is in consonance with the provisions of Section 40 of the Magistrate Court Law of Kano State which requires every proceeding in the court to be heard and disposed of by a single Magistrate and who shall determine all questions of fact and law.

One of the rationale for this principle is that upon the transfer of the matter, the evidence taken by the previous Magistrate ceases to be relevant in the subsequent proceedings and cannot be relied upon, except in circumstances provided in Section 46 (1) of the Evidence Act 2011 (formerly Section 34 (1)) which provides that:
“Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it, is admissible for the purpose of proving in a subsequent judicial proceeding or in later stage of the same judicial proceeding, the truth of the facts which it states when the witness cannot be called” because the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or when his presence cannot be obtained without an amount of delay or expense which, in the circumstances of the case, the court considers unreasonable – Elegushi Vs Oseni (2005) 14 NWLR (Pt 945) 348, Dada Vs Bankole (2008) 5 NWLR (Pt 1079) 26, Ameyo Vs Oyewole (2008) LPELR – 3768(CA), Danish Car Carriers & Anor Vs Sura & Company (Nigeria) Ltd & Anor supra.
In the instance case, in real terms, the anomaly of not starting the matter de novo affected only the examination in chief of the first prosecution witness. Perhaps, if this had been a civil matter, this Court might have been tempted to expunge the testimony of the first prosecution witness and see if there was still sufficient evidence in the testimonies of the other four prosecution witnesses to sustain the charge against the Appellant. However, this is a criminal charge and the anomaly of not starting the matter de novo occasioned the omission of a very fundamental step in the criminal prosecution of the Appellant.
The first most important step to be taken in the prosecution of a person accused of committing a crime in a criminal trial is arraignment. Where a criminal trial is transferred from one Magistrate to another Magistrate, the other Magistrate is obligated, in starting the matter de novo, to arraign the accused person afresh and it is irrelevant that the first Magistrate had earlier arraigned and recorded the plea of the accused person before the transfer of the matter – Federal Republic of Nigeria Vs Bulama (2005) 16 NWLR (Pt 951) 31, Iche Vs State (2013) LPELR – 22035(CA). The arraignment of an accused person before a Magistrate Court of any other Court involves the presentation of the person or suspect unfettered and the charge is read over and interpreted to him by the Registrar of the court to the satisfaction of the court and the accused person is called upon to plead to the charge – Lufadeju Vs Johnson (2007) All FWLR (Pt 371) 1532, Olabode Vs The State (2009) 11 NWLR (Pt.1152) 254.
Reading through the records of appeal, there is nothing showing that the Appellant was at anytime arraigned before Chief Magistrate Ali Usman, after the matter was transferred to his Court. In Okeke Vs State (2003) 15 NWLR (Pt 842) 25, the Supreme Court stated that an arraignment is not a matter of technicality; it is a very important initial step in the trial of a person in a criminal charge and that where there is no proper arraignment, there is no trial. Without a valid arraignment of the accused person, no trial in law would have commenced, and no matter the strength or cogency of the evidence adduced, the trial and subsequent judgment would be rendered totally and incurably defective and consequently declared null and void. Similar statements were made by the Supreme Court in Josiah Vs The State (1985) 1 NWLR (Pt.1) 125, Idemudia Vs State (1999) 7 NWLR (Pt 610) 202 and in very many other cases. Thus, the failure of Chief Magistrate Ali Usman to commence the criminal trial of the Appellant afresh after the transfer of the case to his Court led to the breach of a fundamental step, re-arraignment of the Appellant, and this singular omitted step rendered the entire trial and the judgment delivered thereon a nullity. The first issue for determination in this appeal is thus resolved in favour of the Appellant. This resolution of the first issue for determination should ordinarily conclude the deliberations on this appeal. However, in view of the fact that this Court is not the final Court in the judicial hierarchy, it is wise that it goes further to look at the other issues raised by the parties, in case it turns on a further challenge that its finding on the issue is wrong – Ovunwo Vs Woko (2011) 17 NWLR (Pt 1277) 522, Iwunze Vs Federal Republic of Nigeria (2013) 1 NWLR (Pt 1334) 119 and University of Calabar Vs Akintunde (2013) 3 NWLR (Pt 1340) 1.
The second and third issues for determination complained about the affirmation given by the lower Court to the evaluation of evidence carried out by the Chief Magistrate Court. Counsel to the Appellant stated that the lower Court was in error to have upheld the evaluation of evidence carried out by the Chief Magistrate Court as the records of appeal was replete with instances of improper evaluation of the evidence led by the parties and Counsel pointed to the finding made by the lower Court that the testimony of the first prosecution witness that he opened a shop for the Appellant to manage and that he stocked the shop with ile materials worth N40 Million was unchallenged. Counsel sated that the finding was not supported by the evidence led as the parties stated that the goods in the shop belonged to the Appellant and the other contributors to the business and that the testimony of the first prosecution witness was seriously challenged. Counsel also referred to the evidence of the stock taking that was done and upon which he said the Chief Magistrate based his conviction of the Appellant and stated that the evidence of the first prosecution witness on the stock taking was hearsay evidence while the evidence led by the third and fourth prosecution witnesses were unreliable because the stock taking was not done in the presence of the Appellant. Counsel stated that where a trial Court commits error in the evaluation of evidence, this Court has a duty to intervene by evaluating the evidence so as to make findings there from and draw its own conclusions and he referred to the cases of Anyanwu Vs Uzowuaka (2009) All FWLR (Pt 499) 411 and Arisons Trading and Engineering Co Ltd Vs Military Governor of Ogun State (2009) All FWLR (Pt 496) 1819. Counsel urged the Court to resolve the two issues in favour of the Appellant.
In response, Counsel to the Respondent stated that it was not in contest between the parties that the complainant in the matter entrusted the Appellant with the shop and materials therein and that this fact was stated by the complainant as the first prosecution witness and it was admitted by the Appellant in his testimony before the trial Court. Counsel stated that the testimony of the Appellant was replete with admissions of the case made against him by the complainant and the Appellant gave an undertaking to refund the cost of the misappropriated goods and had started paying back and that the Appellant accepted that what he did was wrong and he testified that he had asked the complainant for forgiveness and had been sending people to beg the complainant. On the stock taking reports, Counsel stated the reports were tendered in evidence as Exhibits B1 to B9 without objection from Counsel to the Appellant and that the third and the fourth prosecution witnesses were the people who did the stock taking and their testimonies cannot be hearsay and that they gave unchallenged evidence of how the stock taking was done and how the shortfall was arrived at and that the Appellant admitted that he participated in some of the stock taking. Counsel submitted that the findings of the Chief Magistrate Court were thus predicted on credible and admissible evidence and were not perverse and do not warrant interference by this Court.
Counsel urged this Court to resolve the two issues for determination against the Appellant.
The major complaint of the Appellant on the two issues for determination is the improper evaluation of the evidence led by the parties by the trial Magistrate Court in arriving at its decision. A trial Court has two duties in respect of the evidence led by parties in a trial. The first is to receive into its records all the relevant evidence, and this is called perception. The second is to thereafter weigh the evidence in the con of the surrounding circumstances, and this is evaluation. A finding of fact by a trial Court involves both perception and evaluation – Guardian Newspapers Ltd Vs Ajeh (2011) 10 NWLR (Pt 1256) 574, Nacenn Nigeria Ltd Vs Bewac Automotive Producers Ltd (2011) 11 NWLR (Pt 1257) 193, Wachukwu Vs Owunwanne (2011) 14 NWLR (Pt 1266) 1.

It is the primary responsibility of a trial, court to hear the parties, watch and observe the demeanour of witnesses called to testify before it, admit or reject documents tendered, ascribe probative value to the evidence and then come up with a decision.
Evaluation of evidence entails the assessment of evidence so as to give value and quality to it. It involves a reasoned belief of the evidence of one of the contending parties and disbelief of the other or a reasoned preference of one version to the other.
There must be on record how the court arrived at its conclusion of preferring one piece of evidence to the other – Idakwo Vs Nigerian Army (2004) 2 NWLR (Pt.857) 249, Oyekola Vs Ajibade (2004) 17 NWLR (Pt 902) 356, Imoh Vs Onanuga (2013) 15 NWLR (Pt 1376) 139 and Al-Mustapha Vs State (2013) 17 NWLR (Pt.1383) 350.
Evaluation of evidence adduced before the court is the exclusive preserve of the trial Court and where the records of proceedings show that a trial Court assessed the evidence produced before it and accorded probative value to them and placed them side by side on an imaginary weighing scale before coming to a conclusion and making a finding of fact on side of the evidence that tilts the scale, such a finding must be accorded due weight so long as it is not unreasonable and not perverse.

A decision of a Court is said to be perverse
(a) when it runs counter to the evidence and pleadings; or
(b) where it has been shown that the trial court took account of matters which it ought not to have taken into account or shut its eyes to the obvious; or
(c) when such a decision has occasioned a miscarriage of justice; or
(d) when the circumstance of the finding of facts in the decision are most unreasonable – Onu Vs Idu (2006) 12 NWLR (Pt 995) 657, Momoh Vs Umoru (2011) 15 NWLR (Pt 1270) 217.
Reading through the records of appeal, particularly the judgment of the trial Court, the learned Chief Magistrate identified the ingredients necessary to establish the two counts charge against the Appellant and sifted through the evidence led by the parties and found credible evidence in support of each ingredient before convicting and sentencing the Appellant. The trial Court carried out an evaluation of the evidence. In considering the appeal of the Appellant, the records showed that the lower Court also carried out an evaluation of the evidence led at trial before coming to the conclusion that the findings of the learned trial Chief Magistrate were not perverse and in upholding them. In its judgment, the lower Court similarly set out the ingredients of the offences against the Appellant and it continued thus:
“In the instance case, there are (sic) sufficient evidence linking the appellant with the trust given to him. For instance, PW1 in his evidence said he opened a shop for the appellant and stocked it with ile materials worth N40 Million…. This piece of evidence was neither challenged nor contradicted in any form. It is this piece of evidence that the learned Chief Magistrate relied on in holding that the appellant was entrusted with the property and we do not have any reason for disagreeing with the lower Court as its finding is not perverse. …
It was sought further by the learned counsel on behalf of the appellant to argue that the learned Chief Magistrate erred in law in convicting the appellant under section 309 and 312 of the Penal Code respectively in the face of contradictory evidence of the prosecution witnesses. Our answer to this submission was that from the records and after careful perusal of same, we cannot see any contradiction in the evidences of the prosecution which are material to the issues in dispute….
In the instant case, the evidence led by the prosecution more especially that of PW1 (nominal complainant) is consistent with other evidences in that there is no material contradiction or inconsistency that will be resolved in favour of the appellant. We therefore think the lower court was right and we so hold….
What was also argued upon us by the learned appellant’s counsel was that the exhibits tendered more especially Exhibit B11 and B1-B9, it is the submission of the learned counsel that Exhibit 811 which the court relied upon to convict and order the appellant to pay twenty million Naira (N20M) as compensation clearly contradict Exhibits B1 to B9. We have looked at the Exhibits and we are of the view that the said exhibits confirm the evidences of the prosecution witnesses and we do not see any contradiction in them. We are therefore in agreement with the submission of the learned counsel for the respondent that the evidences both documentary and oral relied upon by the lower court are consistent and the finding of the court was based on the available evidence before the court.” (see pages 475 to 477 of the records)
It is settled law that in the absence of special circumstances, this Court will not allow a question of fact to be re-opened for the third time where there are two concurrent findings thereon by two lower courts – Asariyu Vs State (1987) 4 BWLR (Pt.67) 709, United Bank of Africa Plc Vs BTL Industries Ltd (2004) 18 NWLR (Pt 904) 180 and Okoro Vs Nwachukwu (2007) 4 NWLR (Pt 1024) 285 at 299-300. In the instant case, the Appellant has not shown any special circumstance to warrant a reconsideration of the two lower courts’ findings that the Respondent led sufficient and credible evidence to sustain the charge against the Appellant. This Court will thus not embark on such review of the evidence led before the trial Court. This Court affirms the findings of the lower court and of the trial Magistrate Court. The two issues for determination are resolved against the Appellant.
With the resolution of the first issue for determination in favour of the Appellant, this Court has no option but to declare the trial before the learned Chief Magistrate a nullity – Kajubo Vs State (1988) 1 NWLR (Pt 73) 721.
It is settled that where a trial is a nullity, it does not mean that the factum of the trial does not exist and the option opened to an appellate Court in such circumstances is to set aside the judgment and either order a retrial or set the accused person free. Before deciding to order a re-trial, an appellate Court must consider the following factors:
i. That apart from the error in law or irregularity in the procedure, the evidence before the Court discloses a substantive case against the accused.
ii. That there are no special circumstances which would make it unjust to put the accused on trial a second time.
iii. That the offence for which the accused is charged and their consequences are serious in nature; and
iv. That to refuse an order of retrial would occasion a, greater injustice than to grant it.
All these factors must co-exist before a case is sent back for retrial. In other words, in ordering a retrial, matters to be considered by the Court include the seriousness and prevalence of the offence, the probable duration and expense of the new trial, the ordeal to be undergone for a second time by the accused person, the lapse of time since the commission of the offence and its possible effect on the quality of the evidence and the nature of the case of the prosecution against the accused person as disclosed in the evidence in the first trial, whether substantial or not – Abodundu Vs Queen (1959) 1 SCNLR 162, Umaru Vs State (2009) 8 NWLR (Pt 1142) 143 and Omosaye Vs State (2014) 6 NWLR (Pt 1404) 484.

In the instant case, the Appellant was charged with criminal breach of trust by servant and misappropriation contrary to sections 309 and 314 of the Penal Code Law. The Appellant was sentenced to a fine of N10,000.00 on each count or imprisonment for three years for each count, the sentence to the consecutively and he was also ordered to pay a compensation of N20 Million to the complainant or go to prison for a term of five years in default of payment of the compensation. The records of appeal suggest that the Appellant had paid the fine on the two counts because there is no indication that the sentence was stayed by the either by the Chief Magistrate Court or the lower Court and the records show that the Appellant was physically present at the hearing of his appeal by the lower Court on the 24th of May, 2011, three months after the sentence passed on the 28th of January, 2011. Thus, the Appellant has served the sentence. The only issue left is the payment of compensation ordered by the Chief Magistrate Court. Payment of compensation is something the complainant can claim in a civil matter without the need of a criminal charge. The Appellant was first arraigned before the Chief Magistrate Court on the 15th of May, 2007, over seven years ago and there is nothing to show that the business carried on by the complainant and the Appellant and which led to the criminal charge is still a going concern. To order a retrial in the circumstances of this case will be oppressive and this Court cannot turn itself into a vehicle of oppression. A retrial will not be ordered.

In conclusion, this Court finds merits in this appeal and it is hereby allowed. The judgment of the High Court of Kano State sitting in its Appellate Judicial Division in Suit No K/5CA/2011 delivered by Honourable Justice Wada Abubakar Omar Rano and Honourable Justice Usman M. Na’Abba on the 11th of July, 2011, affirming the decision of the Chief Magistrate Court Kano in the criminal charge preferred against the Appellant by the Respondent, is hereby set aside. The criminal trial conducted before the learned Chief Magistrate in Suit No KA/19CT/2008 is hereby declared a nullity and the judgment entered therein is set aside. The Appellant is discharged.
These shall be the orders of this Court.

DALHATU ADAMU, J.C.A.: I agree.

ITA G. MBABA, J.C.A.: I agree with the reasoning and conclusions of my learned brother H.A.O. Abiru JCA. I abide by the consequential orders in the lead judgment.

Appearances

M. N. DuruFor Appellant

AND

M. S. Daneji, Solicitor General Ministry of Justice Kano with
Shuaibu Sule, Dalhatu Y Dada, Sunusi Ali and Hafsat Y SanniFor Respondent