SIMON DANTUR v. THE FEDERAL REPUBLIC OF NIGERIA
(2014)LCN/7689(CA)
In The Court of Appeal of Nigeria
On Friday, the 7th day of March, 2014
CA/J/169C/2012
RATIO
APPEAL: GROUND OF APPEAL; THE IMPORTANCE OF GROUNDS OF APPEAL TO AN APPEAL AND WHETHER A GROUND OF APPEAL MUST FLOW FROM THE JUDGMENT APPEALED AGAINST
The importance of grounds of appeal to an appeal cannot be over emphasized. This is so because no appeal can stand without a proper and valid Notice of appeal to sustain it.
A notice of appeal being an initiating process in every appeal is so crucial in the appeal process as a writ of summons is in the ordinary civil action. Once a notice of appeal is vitiated in anyway, the appeal becomes incompetent and liable to be struck out.
See Kato vs. C.B.N. (1991) 9 NWLR (Part 214) 126 and Odunze vs. Nwosu (2007) 13 NWLR (Part 1051) page 1. The law is also settled and well defined in a number of decided cases of both this Court and apex Court that ground or grounds of appeal must flow from the judgment appealed against.
Having stated the law and all that it is pertinent at this juncture to tarry a while and examine the grounds of appeal filed by the Appellant with a view to finding out if they all flow from the judgment which is the subject matter of the appeal under consideration.
The first ground of appeal which is the omnibus ground as has always been the practice of Counsel to make such ground as ground of appeal can pass as a competent ground and it can be said to have flowed from the judgment appeal against. The third ground of appeal is also a competent ground in that same flowed from the judgment of the lower Court. However a hard look at ground 2 of the grounds of appeal which will be reproduced below at the risk of being repetitive, cannot be said to have flowed from the judgment of the lower Court. The ground reads
“The trial Federal High Court Jos Division lacks jurisdiction to try me (a child of 15 years old.)”
A cursory look at the judgment of the lower Court will leave no one in any doubt that this issue is being raised as a fresh issue for the first time in this Court. The question that must be asked and answered is, whether being a fresh issue it can be raised at this stage without the leave of this Court sought and obtained. Lest I forget, no leave was sought and obtained before raising this issue as a ground of appeal.
In the case of Gabriel vs. The State (1989) 5 NWLR (Part 122) page 457 at 462, it was held as follows:
“The appeal Court will not entertain a new issue not raised in the trial court except question of law or the Constitution and then only with the leave of Court …….” (Underlining supplied for emphasis)
In a more recent case of Kaza vs. The State (2008) Vol. 32 WRN page 46 at page 110 the apex Court per Muhammad JSC was very emphatic on this point. Hear him!
“The law is trite that this Court shall not permit a party to raise and argue a new issue which the Court below did not have the benefit of considering except where leave to do so was sought and obtained.” (Underlining supplied for emphasis). per. TIJJANI ABDULLAHI, J.C.A.
EVIDENCE: BURDEN AND STANDARD PROOF; BURDEN AND STANDARD OF PROOF IN CRIMINAL CASES
The law is well settled and defined beyond peradventure that in criminal cases, the burden of proof is always on the prosecution and that can only be discharged if it is proved beyond reasonable doubt. However proof beyond reasonable doubt does not mean proof beyond all shadow of doubts.
In the case of Sunday Ani and Another vs. The State, the apex Court per our erudite emeritus justice, Tobi, J.S.C. held that:
“The expression “beyond reasonable doubt” in evidence means fully satisfied, entirely convinced. In criminal cases, the guilt of the accused must be established beyond reasonable doubt which means that the facts proven must, by virtue of their probative force, establish guilt. Reasonable doubt which will justify acquittal is doubt based on reason and arising from evidence or lack of evidence, and it is doubt which a reasonable person might entertain and it is not fanciful or imagined doubt. Reasonable doubt is such a doubt as would cause a prudent man to hesitate before acting in matters of importance to him.” (P.458, paras. D-F) per. TIJJANI ABDULLAHI, J.C.A.
Before Their Lordships
TIJJANI ABDULLAHIJustice of The Court of Appeal of Nigeria
ALI ABUBAKAR B. GUMELJustice of The Court of Appeal of Nigeria
IBRAHIM SHATA BDLIYAJustice of The Court of Appeal of Nigeria
Between
SIMON DANTURAppellant(s)
AND
THE FEDERAL REPUBLIC OF NIGERIARespondent(s)
TIJJANI ABDULLAHI, J.C.A.: (Delivering the Leading Judgment): This is an appeal against the judgment of the Federal High Court, Jos, delivered by Allagoa (J) on the 30th June, 2011 wherein the Appellant was convicted and sentenced to seven years imprisonment for terrorist acts contrary to and punishable under Section 15(2) of the EFCC Act, 2004.
The Appellant and two others, namely Joseph Gyang and Olarewaju Essan(males) were arraigned before the Federal High Court, Jos(herein after referred to as the lower Court) on a two count charge as follows:
COUNT ONE
“That you Joseph ‘M’ Olarewaju Essan ‘M’ and Simon Dantur ‘M’ all of no definite address in Congo Russia Area of Jos, Plateau State within the jurisdiction of this Honourable Court, on or about the 19th day of January, 2010 did conspire amongst yourselves and agreed to do or cause to be done an illegal act to wit: Terrorist Acts within the territory of the Federal Republic of Nigeria and thereby committed an offence contrary to and punishable under SECTION 518 OF THE CRIMINAL CODE ACT, CAP C38 L.F.N. 2004.
COUNT TWO
That you Joseph Gyang ‘M’, Olarewaju Essan ‘M’ and Simon Dantur ‘M’ all of no definite address in Congo Russia Area of Jos Plateau State within the jurisdiction of this Honourable Court, on or about the 19th day of January, 2010, did commit several terrorists acts to wit: While armed with fire arms and other dangerous weapons, you intimidated, put in fear innocent citizens who are resident in Jos and environs, causing the death of several persons, serious injuries to several others and damage to public and private properties and natural resources, and you thereby committed an offence contrary to and punishable under SECTION 15(2) OF THE EFCC ACT, 2004.”
As can be gleaned from the Records of the lower Court, the plea of the Accused persons including the Appellant was taken on the 5th day of February, 2010 without any objection by the defence Counsel either on the jurisdiction of the lower Court or as regards to the age of any of the accused persons. They all pleaded not guilty after the two counts charge were read and explained to them in Hausa language. The case was then adjourned to 30th March, 2010 for trial.
The case proceeded to hearing and in proof of their case, the prosecution called 3 witnesses and tendered 11 Exhibits. The defence for their part, called four witnesses and closed their case without tendering any exhibit.
In a reserved judgment delivered by the learned trial Judge on the 30/6/2011, he discharged and acquitted all the three accused persons on the 1st count and convicted the 3rd Accused/Appellant on the 3rd Count wherein he held thus:
“In the circumstance the evidence of the 3rd Accused person corroborates that of the PW2 regarding the circumstances of his arrest.
There is nothing to support his claim that he was on his way to collect money from his uncle for feeding. Especially considering the fact that there was curfew in town and riot everywhere, he could not have been at the scene for any other than to participate in the riot.
The prosecution has therefore proved the case against the 3rd Accused person as charge beyond reasonable doubt and he is therefore convicted accordingly.”
After allocutus on behalf of the convict, the learned trial judge held thus:
“Upon the conviction of the Accused person, he is hereby sentenced to 7 years imprisonment at the Federal prisons.”
Dissatisfied with the judgment of the lower Court, the Appellant appealed to this Court wherein he filed a notice of appeal consisting of three grounds on the 26th of June, 2012. Shorn of their particulars, the grounds are hereunder reproduced for ease of reference.
“GROUND ONE
“The conviction/sentence is against evidence.
GROUND TWO
The trial Federal High Court, Jos Division lacks jurisdiction to try me (a child of 15 years old.)
GROUND THREE
The Trial Judge erred in law when he held that: “the 3rd accused in his extra-judicial statement admitted being at the scene of the riot with some boys …. He could not have been at the scene other than to participate in the riot”. This holding led to miscarriage of justice”.
From the three grounds of appeal reproduced supra, learned Counsel to the Appellant distilled three issues for determination to wit:
“(i) Whether the Federal High Court Jos Division, has jurisdiction to try the appellant, a child, under the extant Child’s Rights Laws in Nigeria. (Distilled from Ground 2)
(ii) Whether there was sufficient evidence to support the conviction of the appellant (Distilled from Ground 1)
(iii) Whether the trial Judge was right when he held that the appellant admitted being at the scene of the riot.” (Distilled from Ground 3)
Learned Counsel to the Respondent also formulated three issues for determination as follows:
(i) Whether the Honourable Court of the First instance was right when he convicted and sentenced the Appellant after having satisfied himself that the Respondent has proven its case against the Appellant beyond reasonable doubt as required by the law? (Distilled from ground no. 1 of the Notice of Appeal.)
(ii) Whether the Honourable Court of the First instance presided over by Honourable Justice Allagoa has the requisite jurisdiction to try the Appellant; the Court having being designated to and assigned to try offence under the Economic and Financial Crimes Commission Act, 2004 and Criminal Code Act.? (distilled from ground no. 2 of the Notice of Appeal.)
(iii) Whether the Honourable Court of the First instance was right when he held that the Appellant admitted being at the scene of the riot and was identified as such by the Respondent witness.? (Distilled from ground no. 3 of the Notice of Appeal).
Briefs were filed and exchanged by Counsel in accordance with the Rules of this Court, 2011 and on 4th of February, 2014, when the appeal came before us for hearing, learned Counsel for the Appellant, Mr. C.F. Iornongu adopted his brief of argument dated 20/9/2012 and filed on 21/9/2012 as his submissions in the appeal under consideration and urged us to allow the appeal and set aside the judgment of the lower Court.
Learned Counsel for the Respondent, Mr. S.C. Egede, Acting Director of Public Prosecutions of the Federation adopted his brief dated 30th October, 2013 and filed on 31/10/2013 pursuant to order of Court made on 23/10/2013 as his submissions in this appeal and urged us to dismiss the appeal as lacking in merit.
Now, before consideration is given to the issues formulated by learned Counsel for and on behalf of the parties, let me critically examine the grounds of appeal from which the issues are distilled. The importance of grounds of appeal to an appeal cannot be over emphasized. This is so because no appeal can stand without a proper and valid Notice of appeal to sustain it.
A notice of appeal being an initiating process in every appeal is so crucial in the appeal process as a writ of summons is in the ordinary civil action. Once a notice of appeal is vitiated in anyway, the appeal becomes incompetent and liable to be struck out.
See Kato vs. C.B.N. (1991) 9 NWLR (Part 214) 126 and Odunze vs. Nwosu (2007) 13 NWLR (Part 1051) page 1.
The law is also settled and well defined in a number of decided cases of both this Court and apex Court that ground or grounds of appeal must flow from the judgment appealed against.
Having stated the law and all that it is pertinent at this juncture to tarry a while and examine the grounds of appeal filed by the Appellant with a view to finding out if they all flow from the judgment which is the subject matter of the appeal under consideration.
The first ground of appeal which is the omnibus ground as has always been the practice of Counsel to make such ground as ground of appeal can pass as a competent ground and it can be said to have flowed from the judgment appeal against. The third ground of appeal is also a competent ground in that same flowed from the judgment of the lower Court. However a hard look at ground 2 of the grounds of appeal which will be reproduced below at the risk of being repetitive, cannot be said to have flowed from the judgment of the lower Court. The ground reads
“The trial Federal High Court Jos Division lacks jurisdiction to try me (a child of 15 years old.)”
A cursory look at the judgment of the lower Court will leave no one in any doubt that this issue is being raised as a fresh issue for the first time in this Court. The question that must be asked and answered is, whether being a fresh issue it can be raised at this stage without the leave of this Court sought and obtained. Lest I forget, no leave was sought and obtained before raising this issue as a ground of appeal.
In the case of Gabriel vs. The State (1989) 5 NWLR (Part 122) page 457 at 462, it was held as follows:
“The appeal Court will not entertain a new issue not raised in the trial court except question of law or the Constitution and then only with the leave of Court …….” (Underlining supplied for emphasis)
In a more recent case of Kaza vs. The State (2008) Vol. 32 WRN page 46 at page 110 the apex Court per Muhammad JSC was very emphatic on this point. Hear him!
“The law is trite that this Court shall not permit a party to raise and argue a new issue which the Court below did not have the benefit of considering except where leave to do so was sought and obtained.” (Underlining supplied for emphasis).
In view of the foregoing, the question raised a while ago must be answered in the negative. For avoidance of doubt, the age of the Appellant not having been raised in the Court below cannot be raised as a fresh issue before this Court without leave sought and obtained. This being the case, issue No. 1 and the 2nd ground of appeal from which it is distilled are incompetent and same are expunged from the Records of this appeal.
Needless to say, after the surgical operation, the only issues left for the Appellant for determination are issues No. 2 and 3 distilled from grounds No. 2 and 3 respectively.
Issues No. 2 and 3 distilled by the Appellant’s Counsel are similar to the issues distilled by the Respondent’s Counsel though couched differently. Any set of the issues taken for determination can address the grievance/s of the parties to this appeal. In determining this appeal however, I will adopt the 2nd issue distilled by the Appellant as the only issue calling for determination. It is apt and precise and will certainly address the grievance/s of the Appellant.
The issue in question is, “whether there was sufficient evidence to support the conviction of the Appellant. In arguing this issue learned Counsel to the Appellant after recapitulating the evidence of the Appellant as contained on pages 36 and 37 of the Record, contended that despite the uncontroverted evidence, the trial Judge contrary to Section 36(5) of the Constitution of Nigeria, 1999, convicted the Appellant to seven years imprisonment. Learned Counsel further contended that the burden of proof in criminal cases is on the prosecution and it never shifts. He called in aid the cases of Okoro vs. The State (1988) NWLR (Part 74) page 222 and the case of Moses vs. The State (2006) 11 NWLR (Part 992) page 482 paragraph B to buttress his submission on this point.
Learned Counsel further contended that the evidence of PW2 corroborated that of the Accused/Appellant who testified that he saw some boys who were carrying jerry cans, shovels, knives and sticks. The boys threw the things they were holding and ran away when they saw the soldiers. PW2 did not tell the Court whether Appellant was also running. However, the Appellant told the Court that he was arrested while walking down the street to see his uncle at West of Mines.
Learned Counsel went on to contend that PW2 testified that as the mob cited his patrol vehicle, they took to their heels, some of them dropped their weapons. Learned Counsel argued that the evidence of PW2 as stated supra raises doubt as to whether the accused/Appellant was actually arrested in the act of committing terrorism since PW2 testified that the mob took to their heels. He urged on us to hold that the prosecution did not prove its case beyond reasonable doubt to warrant the conviction of the Appellant.
Learned Counsel held the view that the learned trial Judge was in gross error when he held that “the accused person in his extra-judicial statement admitted being at the scene of the riot with some boys.” Learned Counsel alluded to the evidence of the Appellant on page 36 of the records and submitted that had the trial Judge properly evaluated the evidence of the Appellant as against that of the prosecution, doubt would have been created in his mind and that doubt would have been resolved in favour of the Appellant.
Learned Counsel submitted that the trial Judge must not speculate on the facts of the case but should base the judgment of the Court on relevant and admissible evidence. He cited and relied on the case of the State vs. Aighamge (1988) NSCC 192 at page 202 and Akpabio vs. The State (1994) NWLR (Part 359) 635 at 669.
Relying on the case of Damina vs. The State (1995) NWLR (Part 415) 513 at 546, learned Counsel submitted that, the holding of the learned trial Judge that “There is nothing to support his claim that he was on his way to collect money from his uncle for feeding, especially considering the fact that there was curfew in town and riot everywhere, he could not have been at the scene for any other reason than to participate in the riot; this finding was not only perverse, it also led to gross miscarriage of justice. We were urged to so hold. And allow the appeal, discharge and acquit the Appellant.
For his part, learned Counsel argued per contra and contended that PW2 was an eye witness to the commission of the offence who gave direct, unquestionable and uncontradicted evidence that there were serious fights around Nassarawa Gwom and Congo Russia, and as he proceeded to the scene, he saw a mob burning a house. The mob, when they saw his petrol vehicle, they took to their heels and he pursued them and in the process of which he caught the Appellant with a Jerry-can of petrol.
Learned Counsel further submitted that it is worthy of note that the Jerry-can of petrol was admitted in evidence and marked as EXHIBIT E5.
Learned Counsel further held the view that the evidence of the Appellant corroborated the evidence of the PW2 to the effect that on seeing some boys holding shovels, cutlass and Jerry-can of fuel and that they ran away upon seeing soldiers and he (Appellant) was arrested.
It was submitted for the Respondent that the evidence of PW2 and the Appellant consistently corroborated each other and clearly show that the Appellant participated or facilitated the act of terrorism by intimidating, putting fear on the innocent citizens who are resident in Jos. For this submission, learned Counsel relied on the case of Ogunbayo vs. The State (2007) 30 WRN, 176.
It was further submitted that the trial Judge was right when he held that the Appellant admitted being at the scene of the riot and was identified as such by the Respondent’s witnesses. Learned Counsel cited and relied on Archi vs. The State (2007) 10 WRN page 10.
Now, in resolving the lone issue for determination in this appeal, my first port of call is the evidence adduced by prosecution in the lower Court with a view to finding whether it was sufficient to sustain the conviction of the Appellant.
Let me start with the evidence of PW2 who was the star witness for the prosecution. He testified inter-alia thus:
“PW2: Sworn on the Holy Bible and states in English language:
My names are Col Kayode Oladele Ogundele. I am the Commander 3 Division Garrison Jos. I know the 3 Accused person in the Dock.
On Tuesday 19th January, 2010 when riot broke out everywhere in Jos metropolis and in some places at the outskirts. There were serious fighting around Nassarawa Gwom (sic) Congo Russia. As I was heading to the place to see things myself, I come (sic) across a mob, they just set a house ablaze along the road. As they cited my patrol vehicle, they took to their heels some of them dropped their weapons. I alighted with my orderly, we pursued them. In the process, we grabbed these (sic) 3rd Accused person with a Jerry Can of petrol. I put him in the back of the vehicle with my orderly and we proceeded to Congo Russia.”
PW2 further testified as follows:
“At the Police Station the Police accepted the Jerry Can of fuel, one shovel, two knives, one cutlass one Arrow and one motar pistol.
Mr. Ihua Maduenyi: May I tender the items as identified except the device which I intend to tender as Exhibit.”
Though the defence Counsel objected to the tendering of metal the officer came with on ground of improper custody, the learned trial Judge overruled the objection and held that:
“In the circumstance whereas the explosive is admitted and marked Exhibit “D”. The other items aforementioned are hereby admitted and marked Exhibits A.D. 1 – 6″
In view of the nature of Exhibit “D”, it is further ordered that it remains in the custody of the 3rd Division Garrison, N.A. Jos until the determination of this matter.”
Learned defence Counsel cross-examined PW2 as follows:
Cross-Examination
Question: It was on the same day you arrested the Accused persons that you recovered Exhibit D?
Ans: Yes.
Question: This item has been with the Army till date?
Ans: Yes.
Question: What vehicle were you using on that day?
Ans: Toyota Hilux.
Question: You arrested the 3rd Accused person first?
Ans: Yes.
Question: When you arrested the 3rd Accused where did you put him?
Ans: He was behind the vehicle at the back with my orderly who was Armed.
Question: Did you make any statement to the Police in writing?
Ans: No.
Question: On the date of the incidence many arrests were made?
Ans: Yes.
Question: On that date you made some other arrests.
Ans: Yes.
Question: You identified the Accused persons as the ones you arrested on that day based on what they were wearing?
Ans: No.
Question: What is the name of your orderly and did he give statement to the Police?
Ans: No.
In addition to the evidence adduced by the prosecution reproduced above, the prosecution tendered the statement of the Appellant which was admitted and marked as Exhibit B without any objection from the defence Counsel. Since the statement is not unwieldy it is reproduced hereunder as follows:
“I am a native of Garikawa village in Mikaan LGA of Plateau State I was born in the year 1993. I attended my primary education a (sic) police children school Jos. I finished in the year 2009. I am waiting for admission into secondary school. I am leaving (sic) in ‘A’ Division Police Barracks Jos. My father Domtur was a Chief Superintendent of police but now late. Today 19/1/2010 at about 8am I went to my uncle one Emmanuel Joseph’s house at West of Mines los. As I was returning to the barracks, along standard junction, I saw some boys holding jericans, shovel (sic) knife and sticks heading towards Jenta road. As we were coming, soldiers came with a patrol van and told me to enter inside the car. The other boys dropped the weapons they were carrying and ran away. I was then brought to C.O. office. I did not carry any jerry-can containing petrol. The boys that carried the jerican and other items ran away. I did not carry anything. I was the only person arrested at standard junction. I am aware of the crisis in Jos today. I left my home because my uncle asked me to come and collect some money for my sister to cook. I did not took (sic) part in the crisis.”
It is appropriate at this stage to pause a little and say that the evidence reproduced supra is the sum total of the evidence adduced by the prosecution in support of the charge against the Appellant. Based on the said evidence, the learned trial judge held thus:
“As against the 3rd Accused person, the P.W.2 an eye witness gave direct evidence that there was serious fights around Nassarawa Gwom and Congo Russia, as he proceeded to the scene he saw a mob burning a house and as they cited his patrol vehicle they took to their heels and as he pursued them he caught the 3rd Accused person with a jerrican of petrol. That Jerrycan of petrol was admitted as Exhibit E5.
The 3rd Accused in his extra Judicial Statement Exhibit B, he admitted being at the scene of the riot with some boys who were carrying Jerry cans, shovel, knife and sticks. In his evidence in Chief he admitted seeing some boys holding shovels, cutlass and Jerry can of fuel and that they ran away when they saw the soldiers and than he was arrested.
In the circumstance the evidence of the 3rd Accused person corroborates that of the P.W.2 regarding the circumstances of his arrest.
There is nothing to support his claim that he was on his way to collect money from his uncle for feeding.
Especially considering the fact that there was curfew in town and riot everywhere, he could not have been at the scene for any other reason other than to participate in the riot.
The prosecution has therefore proved the case against the 3rd Accused person as charge beyond reasonable doubt and he is therefore convicted accordingly.”
The law is well settled and defined beyond peradventure that in criminal cases, the burden of proof is always on the prosecution and that can only be discharged if it is proved beyond reasonable doubt. However proof beyond reasonable doubt does not mean proof beyond all shadow of doubts.
In the case of Sunday Ani and Another vs. The State, the apex Court per our erudite emeritus justice, Tobi, J.S.C. held that:
“The expression “beyond reasonable doubt” in evidence means fully satisfied, entirely convinced. In criminal cases, the guilt of the accused must be established beyond reasonable doubt which means that the facts proven must, by virtue of their probative force, establish guilt. Reasonable doubt which will justify acquittal is doubt based on reason and arising from evidence or lack of evidence, and it is doubt which a reasonable person might entertain and it is not fanciful or imagined doubt. Reasonable doubt is such a doubt as would cause a prudent man to hesitate before acting in matters of importance to him.” (P.458, paras. D-F)
From the evidence reproduced above, I am of the considered view that the prosecution has proved the commission of the offence beyond reasonable doubt against the Appellant and the learned trial judge was within the law when he found the Appellant guilty and convicted him of the offence charged.
Learned Counsel to the Appellant has made heavy weather of the fact that the learned trial judge went on a voyage of speculation to hold that the accused admitted being at the scene of the riot. With due respect to the learned Counsel in the light of the evidence adduced supra which the learned trial Judge accepted, it cannot be said that the presence of the Appellant at the scene of the riot was a mere speculation.
The learned trial Judge acted on the evidence of PW2 who was an eye witness to all what transpired on the day the Appellant was arrested. In fact it was this witness (PW2) who arrested the Appellant at the scene of the riot with a Jerry-can of petrol and it was him who put him at the back of his vehicle and handed him to the police along with the other accused persons who were discharged for lack of evidence
Again, learned Counsel made heavy weather of the fact that the trial Judge did not evaluate the evidence before him otherwise he would have arrived at a different verdict then the one handed down to the Appellant. I do not subscribe to this view for the evidence against him was overwhelming. He was perused and arrested at the scene by PW2.
It is my considered view that the learned trial Judge was right to have held that:
“There is nothing to support his claim that he was on his way to collect money from his uncle for feeding. Especially considering the fact that there was curfew in town and riot everywhere, he could not have been at the scene for any other reason other than to participate in the riot.”
On the day the Appellant was arrested, it was a notorious fact that there was riot everywhere within Jos metropolis and that there was curfew. This being the case, the learned Judge was perfectly right to have taken judicial notice of the situation prevailing at that time.
In the fight of the foregoings, the lone issue for determination is resolved in favour of the Respondent and against the Appellant. The appeal fails for lacking in merit and same is dismissed accordingly. The conviction and sentence imposed by the learned trial Judge are hereby affirmed.
ALI ABUBAKAR BABANDI GUMEL, J.C.A.: I have had the privilege of reading before now the lead judgment of my learned brother Tijjani Abdullahi, JCA. I fully agree with all his reasonings and conclusions. I adopt them as mine and have nothing more to add. I too would dismiss this appeal and affirm the judgment of the learned trial judge.
IBRAHIM SHATA BDLIYA, J.C.A.: I have had before now read the lead judgment in draft. I agree with the reasonings and conclusion of my Lord, Abdullahi, JCA. Let me add my few words to the well considered judgment for emphasis. In Kingsley Vs. State (2010) 6 NWLR Pt. 1191 P.593 @ 608 – 609 this court held that any allegation of the commission of a crime in any proceedings, civil or criminal, it must be proved beyond reasonable doubt. The burden of proof is always on the prosecution or the person who alleges the commission of the crime. It is for the prosecution to establish every ingredient of the offence alleged against an accused person; which must be proved beyond reasonable doubt. See also Bello Vs. State (1994) 5 NWLR Pt. 343 P.177; Aje Vs. State (2006) 8 NWLR Pt. 982 P.345; and Isansi Vs. The State (2001) 3 NCC P.1.
It is, however, to be noted that proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. It must be to high degree of probability. What is meant by proof beyond reasonable doubt has been explained in a plethora of authorizes by the Supreme Court and this Court in the following cases Uwagboa Vs. State (2007) 6 NWLR Pt. 1031 P.606 @ 623; Agbo Vs. State (2006) 6 NWLR Pt. 975 P.100; Garko Vs. State (2006) 6 NWLR Pt. 977 P.524 and Oladotun Vs. State (2010) 15 NWLR Pt. 1217 P.490 @ 521.
The learned trial judge was right in holding that the prosecution had proved all the ingredients of the offence with which the appellant was charged. The findings and conclusion of the learned trial judge are unassailable as they are based on proper evaluation of the evidence before him. For the fuller reasons ably elucidated in the lead judgment, I, too, hereby dismiss the appeal and affirm the judgment of the trial court including the conviction and sentence.
Appearances
C.I. Iornugu with J.M. Pam and C. SoporutchiFor Appellant
AND
S.C. Egede DD/SA, Ministry of Justice, Federal with Ejike Orji SSCFor Respondent
