Isa Bello V Federal Republic Of Nigeria (2018)
LAWGLOBAL HUB Lead Judgment Report
SIDI DAUDA BAGE, J.S.C.
The Appellant, and fourteen other Herdsmen, were arraigned before the Federal High Court, Jos, on a three-count Charge of conspiracy, possession of firearms and acts of terrorism, to wit;
“Intimidated, put in fear citizens of Kadunu Village and environs in Mangu Local Government Area of Plateau State, while armed with dangerous weapons such as machetes, knives, bow and arrows, slings and axes, pursuant to which you put in danger the residents of these villages causing the death of several persons, serious injuries to several others, damage to public and private properties and natural resources and thereby committed an offence contrary to and punishable under Section 15 (2) of the Economic and Financial Crimes Commission Act.2004.”
At the trial, the Prosecution called five Witnesses and tendered fifty-seven Exhibits, including Dane guns, bows and arrows, etc, and the Statements of the Appellant and other Accused Persons to the Police, as Exhibits A1-A14, wherein they had confessed to committing some of the said offences charged against them.
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The Prosecution’s case is that after a communal disturbance on 8/3/2010, the Accused Persons were arrested with assorted weapons by Soldiers, who later handed them over to the Police.
None of the Accused Persons, including Appellant, testified in their defence but they called one witness, Mohammed Hassan, the leader of his community, called Hardo, Head of Fulani, and he testified that he was informed of an attack by Berom people, and when they were surrounded by some people, who started burning their houses, he advised the Accused Persons to escape to a secure place. They met Soldiers while trying to escape and were stopped. The Soldiers shot at them. He said he was shot but survived, and that the Accused persons were then arrested. He explained that they were herdsmen, and had the guns for the protection of their cattle, and that none of them used the guns.
The leamed trial Judge, Allagoa J., did not believe DW.1, and in his Judgment delivered on 16/12/2010, he concluded:
“It is not enough for the defence to rely on the evidence of DW.1 or self defence because he is an unreliable witness for reasons I had earlier stated.
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The Prosecution have proffered contrary evidence to the defence as set up by the Accused Persons in their Extra-Judicial Statement, it is now their duty to enter the witness box and testify showing circumstances under which they apprehended fear of death to have warranted them to commit the act. They had therefore, rested their case on Prosecution evidence. In all the circumstances of the case, I find that the Prosecution has proved the 3 Count Charge against 15 Accused Persons beyond reasonable doubt and they are therefore jointly, severally and variously convicted as charged.”
The Appellant, who was the tenth Accused Person was sentenced to two years imprisonment without an option of fine in Count 1, and ten year’s imprisonment without option of fine in Court III.
Dissatisfied, the Appellant appealed to the Court of Appeal and in dismissing his Appeal, the Court of Appeal held as follows:
“The learned trial Judge assessed the credibility of the witnesses, he accepted and believed their evidence. This Court cannot interfere with such findings and conclusions without good cause to do so. See IKO VS THE STATE (2001) 14 NWLR (Pt.132) 221 and MODUPE VS THE STATE (1988) 4 NWLR (Pt.87)
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130, having resolved all three issues against the Appellants, the Appeal fails, same is dismissed. The Judgment of the lower Court is hereby affirmed.”
Further aggrieved, the Appellant appealed to this Court with a Notice of Appeal containing the following two Grounds of Appeal:
GROUND ONE
“The learned Justices of the Court of Appeal erred in law when they affirmed the decision of the trial Court that the Charges against the Appellants were proved beyond reasonable doubt.”
GROUND TWO
“The learned Justices of the Court of Appeal erred in law when they affirmed the decision of the trial Court rejecting the defence of the Appellants.”
The Respondent raised a Notice of Preliminary Objection against the Appeal in its Brief of Argument. It is praying this Court for:
“An order striking out GROUND TWO of the Appellant’s Grounds of Appeal herein for being incompetent, in that it raised a fresh issue on appeal without the prior leave of either the lower Court or this Honourable Court.”
The Grounds for the Respondent’s Objection are as follows:
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“(a) That Appellant’s Ground Two is grossly incompetent in that it has raised a fresh issue on appeal that was neither canvassed nor ruled upon by the lower Court without the leave of this Court.”
“(b) That a fresh issue raised on appeal without leave is ab initio incompetent and of no legal effect.”
It cited ELIOCHIN NIG. LTD. VS MBADIWE (1986) 1 NWLR (Pt.14) 14, EZEKUDE VS ODOGWU (2002) 1 NWLR (Pt. 784) 366, UKO VS EKPEYONG (2006) ALL FWLR (Pt. 324) 1927, JIDDIN VS ABINA (2000) FWLR (Pt.24) 1405 on the position of the law that an Appellant would not be allowed to canvass a fresh issue on appeal without the leave of the trial Court or the appellate Court.
It is its contention that the Appellant is challenging the non-evaluation of the testimony of DW.1, which was not one of the Grounds of Appeal or nominated as an Issue in the Court below, therefore, it did not form part of the decision from that Court; that he must first seek and obtain leave either of the lower Court or this Court before he can do so; and that having failed to obtain leave, Ground Two in this Appeal is incompetent and liable to be struck out, citing OKPOKO COMM. BANK VS IGWE (2013) 13 NWLR (Pt. 1376) 167, OGBA VS ONWUZO (2005) 6 SC (Pt. 1) 41.<br< p=””
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Yes, a fresh issue can only be raised at the appellate Court with the leave of Court. However, the Respondent’s objection is neither here nor there since the Appellant’s complaints in the two Grounds of Appeal touches on the evaluation of evidence by the trial Court and failure of the Court below to re-evaluate same.
It is on that premise that the Appellant distilled two issues for Determination from the said Grounds of Appeal, as follows:
“1. Whether the learned Justices of the Court of Appeal were not in error when they affirmed the decision of the trial Court that the Prosecution had proved the 3 offences with which the Appellants were charged beyond reasonable doubt.”
“2. Whether the learned Justices of the Court of Appeal do not have a duty, Ex debito Justiae to evaluate the evidence led by the Appellant fully by way of re-hearing where the trial Court failed to do so.
The Respondent formulated only one issue for determination i.e.
“Whether the learned Justices of the Court of Appeal were not in error when they affirmed the decision of the trial Court that the prosecution had proved the 3
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offences with which the Appellant was charged beyond reasonable doubt.”
In my view, the issue for determination is simply whether the Court of Appeal was right to affirm the decision of the trial Court.
To lay down some ground rules for determining this Appeal, I must point out that it is an elementary principle that this Court does not entertain appeals directly from the trial Court. Its role is limited to seeing whether or not the decision of the Court of Appeal that affirmed the Judgment of the trial Court is correct – IBATOR VS BARAKURO & ORS. (2007) 9 NWLR (Pt.1040) 475 SC.
See also IBORI VS AGBI (2004) 6 NWLR (Pt. 868) 78 at 143, wherein this Court per Uwaifo, JSC, also observed as follows:
The Supreme Court has no jurisdiction to usurp the function of the Court of Appeal either by hearing an appeal directly from a High Court or by hearing an appeal, which though lying before the Court of Appeal is yet to be decided by that Court because to do so will amount to a violation of the Constitution and will be null and void. The Supreme Court has no jurisdiction to hear a Suit or an issue in a Suit fit for the High Court.”
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In this case, the Appellant focused on the arguments in his brief on decrying the trial Court’s findings for instance, he argued that:
Police investigation and subsequent prosecution where quite shoddy to say the least. If the Police had investigated, and the evidence of DW.1 indicates that the Police investigated whose houses were burnt down but sadly this evidence was not presented in Court. If the evidence that it was the Fulani houses that were burnt was presented in Court, then surely the charge of terrorism at least would have been ridiculous since the Appellant cannot be punished by the law when he and his people were victims guarding their homes. Unfortunately, no such evidence was presented before the Court. The Appellant suffered another blow from the learned trial Judge, who dismissed his defence outright but condescended to pick up morsels from the evidence to help the Prosecution.”
Under his Issue 2, the Appellant further submitted as follows:
“The learned trial Judge said the evidence of DW.1, the sole defence witness “did not follow a natural flow” but nevertheless used some part of the evidence “which corroborates the evidence of PW.2 & 3.
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It would seem that to the learned trial Judge, the evidence of the defence is only acceptable if it corroborates the evidence of the Prosecution otherwise it would be considered as “not following a natural flow.” The learned trial Judge’s mindset in this regard was again captured in his Judgment (p.107 of the Record) when he said “The matter is more convincing given how close to the place where they were arrested to burnt houses where people were killed”‘ This scandalous finding shows that the Court had closed its mind to any defence the Appellant may offer. It was irrelevant to the trial Judge that the Appellant was neither charged with murder nor arson before him and he concluded: “From the conduct of the Accused Persons, it can be inferred that they conspired to commit an unlawful purpose and I thereby draw that inference.”
His only reference to the Court of Appeal is his submission that:
“From this testimony (of DW.1) and the extrajudicial statement of the Appellant, the defence of self-defence or private defence was clearly the fulcrum of his defence.
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Yet, the defence was out rightly rejected by the learned trial Judge and by the learned Justices ofthe Court of Appeal, who affirmed the learned trial Judge’s decision.”
However, it is his contention in this Appeal that the lower Courts, trial Court and Court of Appeal, were in manifest error when they failed to properly consider his defence. He submitted that where the trial Court fails to, as in this case, the Court below has a duty Ex Debito Justiae to consider the defence; that there is no crime however serious that a defence of an Accused will be considered irrelevant, however, stupid or improbable it may seem and that:
“A Court of Justice, as the name connotes, must do justice both to the society at large and the Accused Persons, however, obnoxious the Court may consider them.”
He conceded that the general principle is that where there are concurrent findings of fact by the trial Court and the Court below, this Court is not likely to disturb such findings unless the findings are perverse or lead to injustice, but argued that this case falls into one of the exceptions where this Court will intervene, citing UDE VS CHIMBO (1998) 12 NWLR (Pt.577) 169, WOLUCHEM VS GUDI (1981) 5 SC 291, KUFORIJI VS V.Y.B. (1981) 6-7 SC
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40, ADEGOKE VS ADIBI (1992) 5 NWLR (Pt. 242)410, NNEJI VS CHUKWU (1996) 10 NWLR (pt. 478) 269, AGBOMEJI V. BAKARE (1998) 9 NWLR (Pt. 564) 1, OVERSEAS CONST. LTD VS CREEK ENT. LTD. (1985) 3 NWLR (Pt.13) 414 and ATOLAGBE VS SHORUN (1985) 1 NWLR (pt.2) 375. He urged this Court to hold:
“- There is no evidence to prove the Charge beyond reasonable doubt;
– The lower Court erred in upholding the decision of the trial Court;
– The trial Court relied on hearsay evidence to convict and failed to properly evaluate his evidence before it; and that
– The Court below erred in failing to evaluate it by way of re-hearing.”
The Respondent made the usual submissions about the position of the law on the duty of the Prosecution in criminal proceedings, the findings of the trial Court on each count of the said charge; and its decision thereon, and submitted that the Court of Appeal not only accepted all the findings of fact made by the trial Court, but concluded that it proved the case beyond reasonable doubt.
Furthermore, that it is trite that this Court does not make it a practice to disturb concurrent finding of the two lower
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Courts, unless they are shown to be perverse, citing BEN VS THE STATE (2006) 16 NWLR (Pt.1006) 582, where this Court held that:
“The learned trial Judge and the Justices of the Court of Appeal accepted the version of the evidence led by the Prosecution… There was therefore concurrent findings of facts by the two lower Courts. The position of the law is that this Court will not disturb such concurrent findings of the two lower Courts unless it is shown that such findings are perverse or that there was a substantial error either in the substantive or procedural law which if uncorrected, will lead to a miscarriage of justice.”
It also cited ONWUAMA VS EZEOKOLI (2002) 2 SCNJ, 271, AMUSA VS THE STATE (2003) 1 SCNJ 518, UBANI VS THE STATE (2003) 18 NWLR (Pt. 851) 247 SC and AKINKUGBE VS EWULUM HOLDINGS (2008) 12 NWLR (Pt. 1098) 375, and urged this Court to uphold the decision of the Court below and resolve its issue against the Appellant, the Prosecution having proved its case against him.
As I pointed out earlier, the issue in this Appeal boils down to whether the Court below should have re-evaluated evidence.
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This law is that it is only where and when a Court fails to evaluate evidence at all or properly that a Court of Appeal can intervene, and evaluate or re evaluate such evidence. As a general rule therefore, when the question of evaluation of evidence does not involve credibility of witnesses but against the non-evaluation or improper evaluation of the evidence, the appellate Court is in as good a position as the trial Court to do its own evaluation – See FATAI VS THE STATE (2013) 10 NWLR (pt. 1361) 1 at 21 SC.
So, when the question of evaluation of evidence involves credibility of witnesses, and appellate Court cannot do much since it is the trial Court that saw them, heard them and watched their demeanour that is in the vantage position to believe or disbelieve witnesses, and this can never be captured by an appellate Court, which only has the “cold printed record to contend with” – See SOGUNRO & ORS VS YEKU & ORS (2017) LPELR-41905 (SC).
“Credibility” is the quality of being convincing or believable, and since the trial Court has the liberty and privilege to believe one witness or disbelieve another witness, its findings predicated on the belief or the disbelief of
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witnesses, is almost sacrosanct, as this can only be questioned on appeal if it is against the drift of the evidence before a trial Court, when considered as a whole -See ADELUMOLA VS THE STATE (1988) 1 NWLR (Pt. 73) 683 SC.
In this case, the Court below, in resolving the first issue of whether the Prosecution proved its case against the Appellants, set out the evidence and findings of the trial Court, and stated:
The trial Court had made findings and conclusions after evaluating the evidence before it. It also ascribed evidential value to the evidence produced before it. This Court being an appellate Court, cannot disturb these findings and conclusions, unless there are good reasons to do so. The Appellants have not been able, also to show or established that the trial Court failed in its duty of evaluating the evidence and ascribing probative value therefore – – – The credibility or otherwise of witnesses, and the ascription of probative value to the evidence of a witness are entirely within the province of a trial Court. An appellate Court cannot, and should not disturb such exercise unless it was not done, or if done, not properly performed
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before an appellate Court can perform such duty – – Therefore, in view of what have been said in the foregoing paragraphs of this Judgment, the Prosecution has proved its case beyond reasonable doubt against the Appellants for the offence of conspiracy, illegal possession of firearms and the offence under the EFCC Act.”
On the issue of whether the Prosecution proved its allegation of illegal possession of firearms against the Appellants, it also held:
“As earlier pointed out in this Judgment, there were no contradictions in the evidence of the Prosecution Witnesses on the number of guns or firearms generally that where recovered from the Appellants. Having admitted being in possession of the guns and or firearms, the offence of illegal possession thereof, have been proved, notwithstanding the evidence of DW.1, who testified that the guns were for the protection of their animals. The learned trial Judge assessed the credibility of the witnesses he accepted and believed their evidence. This Court cannot interfere with such findings and conclusions without good cause to do so. – – In view of the foregoing, the Prosecution had proved the allegation of illegal
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possession of firearms against the Appellants who were so convicted. This issue is so resolved.
– -The Appeal fails, same is dismissed.”
Obviously, the question of the Court of Appeal re-evaluating the evidence before the trial Court does not come into the question. The trial Court believed the witnesses called by the Prosecution. It found DW.1, the only witness called by the defence, unreliable, and it refused to accept or act on his testimony in their defence.
In other words, it assessed the credibility of the witnesses, and accepted and believed the Prosecution witnesses, therefore, the Court below was right not to interfere with its findings and conclusions that had not been shown to be perverse in any way.
This Court is also not in a position to intervene because as Ademola, CJN, observed in the case of OMISADE VS THE QUEEN (1964) NSCC (Vol. 3) 170, it is not the function of this Court to retry a criminal case on appeal. He further stated as follows:
“If there was evidence before the trial Judge from which he could reasonably have come to the conclusion to which he did, the verdict must stand.
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The law was aptly put by Lord Tucker in the case of R. VS ALADESURU & ORS 39 C.A.R 184, which was an appeal from Nigeria. The learned Lord at p. 185 of the Report said:
“It will be observed that the language of the WACA ordinance follows the English Criminal Act, 1907, under which it has long been established that the appeal is not by way of re hearing as in civil appeals from a Judge sitting alone, but is a limited appeal, which precludes the Court from previewing the evidence and making its own valuation.”
In this case, the Court below found that there was evidence before the trial Court from which it could reasonably have come to the conclusion it did that the Appellant was guilty as charged, and so, its decision that the verdict of the trial Court must stand, cannot be faulted, this Court cannot interfere with that finding.
More importantly, the law says that where there is sufficient evidence to support concurrent findings of fact by the trial Court and the Court below, they will not be disturbed unless there is significant error apparent on the Record; that is, the findings are shown to be perverse, or some miscarriage of
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justice or some violation of the principles of law or procedure is shown thereon – See OGOALA VS THE STATE (1991) 2 NWLR (Pt.175) 506 SC.
In other words, the two lower Courts are concurrent in their decisions and the onus lies on the Appellant to give very good reasons why this Court should interfere with the findings of fact arrived at by the two lower Courts. ‘It is not a matter of course:- MUHAMMAD VS THE STATE (2017) 13 NWLR (pt. 1583) 386 SC.
In this case, there is sufficient evidence established by the Prosecution to support the concurrent findings of the two lower Courts and this is one more reason this Court cannot intervene.
The Appeal lacks merit and it is dismissed, and I affirm the Judgment of the Court below upholding the trial Courts decision.
SC.773/2014
