OLOM ADIE v. THE STATE
(2013)LCN/5889(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 5th day of February, 2013
CA/C/60C/2012
RATIO
APPEALS: WHETHER AN APPEAL COURT HAS THE RIGHT TO INTERFERE FINDINGS OF FACT AFTER THE TRIAL JUDGE HAD EVALUATED THE EVIDENCE AND ASCRIBED PROBATIVE VALUE TO THE TESTIMONY OF THE WITNESSES
But generally speaking, it is not within the province of an appeal Court to disturb findings of fact after the trial Judge had evaluated the evidence and ascribed probative value to the testimony of the witnesses, except such findings are perverse or unsound. What the appeal Court does is to look at the reasons that led to the conclusions and inferences drawn. If there is an error that if not corrected may lead to a miscarriage of justice, the appeal Court may interfere. See Ebba vs. Ogodo (1984) 4 SC 84; Q vs. Isa (1961) 1 All NLR (Pt.4) 668; Fashanu vs. Adekoya (1974) 6 SC 83 at 91; Lokoyi vs. Olojo (1983) 8 SC 61. Where the learned trial Judge adopted a wrong approach, wrong assumption, or cast the onus of proof on the wrong party, the appeal Court may also interfere. See Onobruchere vs. Esegine (1986) 1 NWLR (pt.19) 799 at 807; Sandy vs. Hotoqua 14 WACA 18 at 20. Furthermore, findings of fact can be set aside where there is a violation of principles of law or improper evaluation of evidence. See Adi vs. Anyaoke (1986) 3 NWLR (pt.31) 791 at 742; Woluchem vs. Gudi (1981) 5 SC 319. Per. JOSEPH TINE TUR, J.C.A.
EVALUATION OF EVIDENCE BY A TRIAL JUDGE
In the course of evaluation of evidence the learned trial Judge reserves the right to believe a witness in whole or in part on any point in issue. See John Dawa vs. The State (1980) 1 PLR 305 at 314-, Ekanem vs. The King 13 WACA 108 at 109. The learned trial Judge did not wholly believe the prosecution witnesses that the three suspects conspired in slapping/beating Pw1 hence the discharge and acquittal of the 1st suspect. This is supported by the evidence of the appellant and the 3rd suspect. But there is no material contradiction in the evidence of the prosecution witnesses that the appellant and the third suspect acted together in beating Pw1 on that fateful day. Per. JOSEPH TINE TUR, J.C.A.
CRIMINAL LAW: STATUTORY DEFINITION OF GRIEVOUS HARM
The interpretation provision of chapter 1 Section 1 of the Criminal Code Law of Cross River State Cap C16 supra defines the phrase “grievous harm” as meaning “any harm which amounts to a main or dangerous harm as defined in this Section, or which seriously or permanently injures health, or which is likely so to injure health, or which extends to permanent disfigurement or to any permanent or serious injury to any external or internal organ, member, or sense.” The Code further defines ‘harm” to mean, any bodily hurt, disease, or disorder, whether permanent or temporary.” Per. JOSEPH TINE TUR, J.C.A.
THE TEST TO APPLY WHEN DEALING WITH CONSPIRACY
The test to apply when dealing with conspiracy is to ask whether it is true to say that the acts of the co-conspirators were done in pursuance of a criminal purpose or intention held in common between them – see Oyediran & Ors. vs. The State (1967) NMLR 122 at 128. Conspiracy can be inferred from the fact that the co-conspirators did things in common where there is no direct evidence in support of an agreement between them. See Aje vs. State (2008) 8 NWLR (Pt.982) 349; Aituma vs. State (2006) 10 NWIR (Pt.989) 452; Oduneye vs. The state (2001) 13 WRN 88; Nwosu vs. The State (2004) 15 NWLR (Pt.897) 466. Per. JOSEPH TINE TUR, J.C.A.
JUSTICES:
MOHAMMED LAWAL GARBA Justice of The Court of Appeal of Nigeria
JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria
ONYEKACHI A. OTISI Justice of The Court of Appeal of Nigeria
Between
OLOM ADIE – Appellant(s)
AND
THE STATE – Respondent(s)
JOSEPH TINE TUR, J.C.A. (Delivering the Leading Judgment): The appellant was the second out of three accused persons charged before the High Court of Justice, Cross River State of Nigeria holden at Ogoja. The charges read as follows:
“STATEMENT OF OFFENCE:
CONSPIRACY contrary to Section 520(6) of the Criminal Code Law Cap C16 Vol.3 Laws of Cross River State of Nigeria, 2004.
PARTICULARS OF OFFENCE:
ADIE CHRISTOPHER EBODO, OLOM ADIE and AJOR ENEJI on the 28th day of October, 2007 at St. Mark’s Primary School Gakem, Bekwarra in the Ogoja Judicial Division did conspire amongst yourselves to effect an unlawful purpose to wit: Cause grievous harm to Hon. Agabi Edward Efenji.
STATEMENT OF OFFENCE COUNT II
GRIEVOUS HARM contrary to section 355 of the Criminal Code Law Cap C16 Vol.3 Laws of Cross River State of Nigeria, 2004.
PARTICULARS OF OFFENCE
ADIE CHRISTOPHER EBODO, OLOM ADIE AND AJOR ENEJI on the 28th day of October, 2007 at St. Mark’s Primary School Gakem, Bekwarra in the Ogoja Judicial Division did cause grievous harm to Hon. Agabi Edward Efenji.”
The three suspects pleaded not guilty to the charges on 3rd August, 2010. Trial proceeded on 22nd day of October, 2010. The prosecution called PW1-PW4. The suspects testified as Dw1 (Olom Adie); Dw2 (Anjor Eneji) and DW4 (Adie Christopher Ebodo). The paramount Ruler (Dw3) could not conclude his evidence in-chief despite several adjournments. On application by learned Counsel on both sides the learned trial Judge expunged his testimony on 17th October, 2011. The appellant testified, called Dw5 and closed his defence. Learned Counsel submitted written addresses which the learned trial Judge considered before discharging and acquitting Adie Christopher Ebodo (Dw4) on 31st January, 2012 for lack of evidence. The learned trial Judge sentenced the appellant/2nd suspect and one Anjor Eneji (3rd suspect) on Counts 1 and 2 as follows:
“Sentence: I hereby sentence the 2nd accused person to one year imprisonment on count one. I sentence 2nd accused to one year imprisonment on count two. I hereby sentence 3rd accused person to one year imprisonment on count one. I sentence him to one year imprisonment on count two. All sentences to run concurrently.”
See page 82 lines 1-9 of the printed record.
On 9th February, 2012 the appellant filed an appeal against his conviction and sentence on two grounds. On 13th April, 2012 the appellant sought and was granted leave to amend the Notice and Grounds of Appeal. The amendment was deemed granted on 3rd May, 2012. The Amended Notice of Appeal contains five grounds of appeal. The appellant filed a brief on 3rd May, 2012. The Respondent filed an application on 27th June, 2012 seeking leave to file a brief out of time. On 3rd July, 2012 the application was deemed properly filed and served on the appellant. The appellant and respondent’s briefs were adopted when the appeal came up for hearing on 4th December, 2012. Before I consider the issues set down for determination may I set out the facts that led to the trial and conviction of the appellant by the Lower Court.
The paramount ruler of Bekwarra Local Government Area in cross River state, His Royal Highness, Stephen Onoh conveyed a meeting of his Community to discuss the management of Eyatem Primary School. Both Communities are in Gakem within the area the school is situate. The paramount ruler invited four people from Eyatem and four from Agbara. The meeting held on the 28th day of October, 2007. Other members of the community stood outside the hall where the meeting was being held. Those specifically invited were accommodated within. In the course of discussion a dispute arose. Hon. Agabi Edward Efenji (PW1) alleged that as he went outside because he was being abused by Adie Christopher Ebodo (1st accused), he signalled to the appellant (Olom Adie) and 3rd suspect (Ajor Eneji) who were standing by the door. As Pw1 passed he felt a heavy blow on the back with a stick which knocked him down. Another blow by the 3rd suspect got him back to his feet. All the three suspects joined in beating him. The appellant and the 3rd accused threatened that if he did not leave the School for the 1st suspect to manage they will kill him. Pw1 was rescued by one Opah Irinam (Pw3).
Mary Agbo Efenji is the wife of Pw1. She testified as Pw2. Opah Irinam gave evidence as Pw3. Police Constable Sodoumowei Sal of the Divisional Police Station Gakem, Bekwarra who investigated the alleged crime gave evidence as Pw4 and tendered Exhibits 1-4. The suspects denied the allegation. The appellant however testified that when Pw1 was coming out of the hall he blew his nose on him. The appellant drew Pw1’s attention to what he had done. At page 22 lines 23-29 of the printed record the appellant testified that:
“…He called me a thief, a tout and slapped me twice. I slapped him once in return. We gripped ourselves. 3rd accused person ran and separated us and blamed me as an Elder. Pw.1 went back into the meeting venue and reported the incident to the meeting. 1st accused was inside the meeting room. I never threatened pw1 before. I did not beat Pw1 with a sandal.”
Anjor Eneji (3rd suspect/Dw2) however admitted there was a fight between appellant and pw1 (page 25 lines 16-30 of the printed record).
The appellant’s learned Counsel set down the following issues for determination:
“7. Whether the trial Court was right to have held that the offence of causing harm was proved by the prosecution against the Appellant beyond reasonable doubt.
2. Whether the trial Court was right in convicting the Appellant for the offence of conspiracy to assault.”
The learned Counsel to the Respondent adopted the two issues formulated by counsel to the Appellant.
ARGUMENTS: ISSUE ONE
Learned Counsel to the appellant drew this Court’s attention to what he considered to be contradictory evidence by the prosecution witnesses to the fact of the beating of Pw1 by the 2nd and 3rd suspects. Learned Counsel submitted that the prosecution did not cross-examine the appellant to dislodge his evidence. That the evidence should have been believed by the learned trial Judge. Secondly, the Medical report (Exhibit “1”) which the learned trial Judge acted upon was inadmissible because it was a Photostat copy, citing Section 89 and 90(c) of the Evidence Act, 2011. Counsel contended that the learned trial Judge should not have relied on Section 174 of the Criminal Procedure Law to convict the appellant once the 1st suspect was discharged and acquitted on the same evidence. Learned counsel urged that issue one be resolved in favour of the appellant.
The learned Counsel to the Respondent submitted that there is no material contradiction in the evidence adduced by the prosecution witnesses. That Exhibit “Pw1” is a duplicate of the Medical report in the file sent to the Ministry of Justice and was admissible in evidence. Learned Counsel urged that issue one should be resolved against the appellant.
REASONS FOR JUDGMENT: ISSUE ONE
Where the judgment appealed against involves the weight of evidence the Appeal Court can make up its mind on the evidence. An appeal Court is to evaluate the evidence where the issue of credibility of the witnesses’ testimony is not involved. See Mogaji vs. Odofin (1978) 4 SC 91 at 93-94; Olubode vs. Salami (19851 2 NWLR (Pt.7) 282 at 294-298; Ajadi vs. Olarewaju (1969) 1 All NLR 382; Fatoyinbo vs. Williams (1956) 1 FSC 87.
But generally speaking, it is not within the province of an appeal Court to disturb findings of fact after the trial Judge had evaluated the evidence and ascribed probative value to the testimony of the witnesses, except such findings are perverse or unsound. What the appeal Court does is to look at the reasons that led to the conclusions and inferences drawn. If there is an error that if not corrected may lead to a miscarriage of justice, the appeal Court may interfere.
See Ebba vs. Ogodo (1984) 4 SC 84; Q vs. Isa (1961) 1 All NLR (Pt.4) 668; Fashanu vs. Adekoya (1974) 6 SC 83 at 91; Lokoyi vs. Olojo (1983) 8 SC 61.
Where the learned trial Judge adopted a wrong approach, wrong assumption, or cast the onus of proof on the wrong party, the appeal Court may also interfere. See Onobruchere vs. Esegine (1986) 1 NWLR (pt.19) 799 at 807; Sandy vs. Hotoqua 14 WACA 18 at 20. Furthermore, findings of fact can be set aside where there is a violation of principles of law or improper evaluation of evidence. See Adi vs. Anyaoke (1986) 3 NWLR (pt.31) 791 at 742; Woluchem vs. Gudi (1981) 5 SC 319.
When an appeal turns on questions of fact, there is the presumption that the findings of the trial Judge are correct except otherwise demonstrated in the appeal court. See Kojo vs. Bonsie 14 WACA 243; Nonjan vs. Aly 14 WACA 400 and Onowan vs. Iserhein (1976) 1 NMLR 266.
In the course of evaluation of evidence the learned trial Judge reserves the right to believe a witness in whole or in part on any point in issue. See John Dawa vs. The State (1980) 1 PLR 305 at 314-, Ekanem vs. The King 13 WACA 108 at 109. The learned trial Judge did not wholly believe the prosecution witnesses that the three suspects conspired in slapping/beating Pw1 hence the discharge and acquittal of the 1st suspect. This is supported by the evidence of the appellant and the 3rd suspect. But there is no material contradiction in the evidence of the prosecution witnesses that the appellant and the third suspect acted together in beating Pw1 on that fateful day.
Where a co-accused’s evidence implicates another co-accused, he or his Counsel must cross-examine that co-accused. See Rigby vs. Woodward (1957) 1 All E.R. 391; 10 Halsbury’s Laws of England, 3rd edition p.482 paragraph 881; R vs. Hilton (1971) 3 All E.R. 541; Murdoch vs. Taylor (1965) 1 All E.R. 406 or (1965) 2 WLR 425. When Pw2 and pw3 testified that the appellant and the 3rd suspects beat up Pw1 they were not cross-examined by learned Counsel to the appellant to disparage and discredit their evidence. It is unacceptable for an accused’s learned Counsel not to cross-examine prosecution witnesses on a material point only to adduce evidence on the point during his defence. See Babalola vs. The State (1989) 7 SCNJ 127 at 139; Nkwa vs. C. O. Police (1977) NWLR 98/103; and Nkosi v. The State (1989) 2 SCNJ 183.
My humble view is that Counsel who appeared for the suspects in the lower Court failed to cross-examine the prosecution witnesses on the material issue of who and who slapped/beat Pw1 . The authorities cited in argument do not support the learned Counsel to the appellant’s argument. On the issue of the Medical report (Exhibit “Pw1”) his Lordship held at page 80 lines 15-17 of the printed record thus:
‘Exhibit “1”, the medical report, shows what harm the beating of PW1 by 2nd and 3rd accused persons caused PW1.”
His Lordship set out his views of Exhibit “1” at page 81 lines 12-17 of the printed record as follows:
“I see that the unlawful purpose alleged in count one is causing grievous harm and that the injuries indicated and proved on Exhibit “1” do not amount to grievous harm as defined in section 1 of the Criminal Code Law. However, I have acted under Section 174 Criminal Procedure Law to convict the 2nd and 3rd accused persons for the lesser offence disclosed on Exhibit “1” to wit: causing harm to PW1.”
When Pw4 tendered Exhibit “1” on 15th March, 2011, S. E. Adie and P. I. Onyeka, Esq. who appeared on behalf of the three suspects raised no objection. PW4 was not cross-examined as to whether Exhibit “1” was a public document, a Photostat, or duplicate copy. An appeal Court will not allow a party or Counsel to attack a judgment on a point not argued at the trial Court except if its admissibility is prohibited by law. See Balogun vs. Obisanya & 1 Or. (1956) 1 FSC 22 at, 23; Idahosa vs. Oronsaye (1959) 4 FSC 166 at 170-171; Atanda vs. Ajani (1989) 2 NSCC 511 at 526. To allow such argument would be unfair to the learned trial Judge. The authority of Alade vs. Olukade (1976) 2 FNLR 10 shows the circumstances a party or Counsel may attack documentary evidence admitted at the trial Court without objection. See also Anyaebosi vs. R. T. Briscoe (1987) 6 SCNJ 9 at 19-21 and Kossen (Nig.) Ltd. vs. Savannah Bank (Nig.) Ltd. (1995) 9 NWLR (Pt.420) 439 and Section 251(1) of the Evidence Act, 2011.
Moreover, section 174 of the Criminal Procedure Law, Laws of Cross River State, 2004 Vol.3 page C17-58 under which the learned trial Judge convicted and sentenced the appellant reads as follows:
“174. Where the offence proved is included in the offence charged
(1) In addition to the provisions hereinbefore specifically made whenever a person is charged with an offence consisting of several particulars a combination of some only of which constitutes a complete lesser offence in itself and such combination is proved but the remaining particulars are not proved he may be convicted of such lesser offence or may plead guilty thereto although he was not charged with it.
(2) When a person charged with an offence and facts are proved which reduce it to a lesser offence he may be convicted of the lesser offence although he was not charged with it.”
The appellant and the co-accused were arraigned under Sections 355 and 520(6) of the Criminal Code Law of Cross River State, 2004 Vol.3 page C16 as follows:
“520. Other conspiracies:
Any person who conspires with another to effect any of the following purposes –
xxxxxxxxxxxxxxxxxxxxxx
6) to effect any unlawful purpose; or
7) xxxxxxxxxxxxxxxxxxxxxxx
is guilty of a misdemeanour, and is liable to imprisonment for two years.
An offender cannot be arrested without warrant.
355. Assaults occasioning harm:
Any person who unlawfully assaults another and thereby does him harm is guilty of a felony, and is liable to imprisonment for three years.”
The interpretation provision of chapter 1 Section 1 of the Criminal Code Law of Cross River State Cap C16 supra defines the phrase “grievous harm” as meaning “any harm which amounts to a main or dangerous harm as defined in this Section, or which seriously or permanently injures health, or which is likely so to injure health, or which extends to permanent disfigurement or to any permanent or serious injury to any external or internal organ, member, or sense.” The Code further defines ‘harm” to mean, any bodily hurt, disease, or disorder, whether permanent or temporary.”
The learned trial judge found from the oral and documentary evidence (Exhibit “1”) that no grievous harm was caused by the appellant to Pw1. But the Court found that they jointly slapped and beat Pw1 thereby occasioning him harm. The learned trial Judge held at page 79 lines 15-17 of the printed record as follows:
‘I believe the story told by PWs. 1, 2, and 3 and hold that third accused hit Pw.1 with a fist blow and a leg of sandals/slippers.”
The learned trial Judge again held at page 80 lines 23-24 of the printed record that:
“I have disbelieved the catarrh story of the accused person. I have held the 2nd and 3rd accused persons assaulted PW1.”
The holding is supported by the evidence adduced at the trial. To beat someone is to inflict and punish him with blows or to strike or smite and cause him harm. A slap is “…a blow delivered with the open hand or with something flat; also, an insult; slur” see The New International Webster’s Comprehensive Dictionary of the English Language, Encyclopaedic Edition, 2003, pages 123 and 1180 respectively. There is no substance in the argument of the learned Counsel to the appellant on issue one. I resolve the issue against the appellant.
ISSUE TWO:
Learned Counsel to the appellant submits on this issue that there was no evidence of conspiracy to warrant the conviction of the appellant in the absence of consensus ad idem. Counsel cited a plethora of authorities to show when it can be said that conspiracy exists and was proved beyond reasonable doubt by the prosecution namely, Aituma vs. The State (2003) 5 NWIR (pt.1028) 466 at 482; Amachree vs. Nigerian Army (2003) 3 NWLR (Pt.807) 281; Kaza vs. State (2008) 7 NWLR (Pt.1058) 125 at 154. Counsel referred to the evidence of the prosecution and defence and urged this Court to hold that the appellant was entitled to a discharge and acquittal; that issue two should be resolved in favour of the appellant.
The learned Counsel to the Respondent referred to the evidence of the prosecution witnesses and the defence coupled with the findings of the learned trial Judge and contended that conspiracy was proved beyond reasonable doubt. Counsel cited the following cases – Ogbu vs. State (2007) All FWLR (Pt.361) 1651; Garba vs. C.O.P. (2007) All FWLR (Pt.384) 260 and Abacha vs. State (2001) 3 NWLR (Pt.699) 35. Counsel argument is that conspiracy can be inferred from the actions of the co-conspirators. It was further argued that the evidence against the 1st suspect was not the same as against the appellant and his co-conspirators. That issue two should be resolved against the appellant. The appeal should be dismissed.
From the evidence adduced by the prosecution, read together with the defence, the learned trial Judge found that the appellant and Anjor Eneji slapped/beat pw.1 thereby causing him harm. That they had jointly carried out an unlawful purpose within the meaning of Section 520(6) of the Criminal Code Law of Cross River State supra. The learned authors of Black’s Law Dictionary, 9th edition page 351 defines “conspiracy” as:
‘An agreement by two or more persons to commit an unlawful act, coupled with an intent to achieve the agreement’s objective, and fin most states) action or conduct that furthers the agreement; a combination for an unlawful purpose.”
In “A Textbook of the Law of Tort” 1950, 5th edition, page 434 paragraph 128 P.H. Winfield wrote that:
‘When two or more persons combine for the purpose of inflicting upon another person an injury which is unlawful in itself, or which is rendered unlawful by the mode in which it is inflicted, and in either case the other person suffers damages, they commit the tort of conspiracy.”
In Mulcahy vs. Rex (1868) L.R. 3 H.L. 506 at 317 Willes J., defined conspiracy as follows:
“A conspiracy consists not merely in the intention of two or more, but in the agreement of two or more to do an unlawful act, or to do a lawful act by unlawful means.”
The test to apply when dealing with conspiracy is to ask whether it is true to say that the acts of the co-conspirators were done in pursuance of a criminal purpose or intention held in common between them – see Oyediran & Ors. vs. The State (1967) NMLR 122 at 128. Conspiracy can be inferred from the fact that the co-conspirators did things in common where there is no direct evidence in support of an agreement between them. See Aje vs. State (2008) 8 NWLR (Pt.982) 349; Aituma vs. State (2006) 10 NWIR (Pt.989) 452; Oduneye vs. The state (2001) 13 WRN 88; Nwosu vs. The State (2004) 15 NWLR (Pt.897) 466.
The appellant and Anjor Eneji, standing outside the hall where the meeting was being held, at the spur of the moment, jointly slapped/beat Pw1 thereby causing him harm. In my view conspiracy to effect an unlawful purpose had been completed contrary to the provisions of Section 520(6) of the criminal Code Laws of Cross River state of Nigeria. The learned trial Judge rightly convicted and sentenced the appellant as charged. I resolve issue two against the appellant.
On the whole the conviction and sentences are hereby affirmed. The appeal is dismissed. Appellant to complete sentence.
MOHAMMED LAWAL GARBA, J.C.A.: My learned brother J. T. Tur, JCA, had availed me of the draft of the lead judgment in this appeal before today. I agree with the views expressed on the two (2) issues which called for decision and the conclusion that the appeal is wanting in merit. I too dismiss the appeal for the reasons set out in the lead judgment which I adopt.
ONYEKACHI A. OTISI, J.C.A.: I have had the privilege of reading, in draft, the Judgment just delivered by my learned brother, JOSEPH TINE TUR J.C.A., and I completely agree with the Judgment. The issues raised for determination have been exhaustively resolved, and I have nothing more to add.
I abide with the order, dismissing the appeal, and affirming the conviction and sentence of the appellant.
Appearances
F. N. Nachamada & Ogar Olim For Appellant
AND
Okoi Ukam SSC For Respondent
