Engineer Goodnews Agbi & Anor V. Chief Audu Ogbeh & Ors (2006)

LAWGLOBAL HUB Lead Judgment Report

MUSDAPHER, J.S.C.

This is an appeal against the decision of the Court of Appeal Abuja Division, delivered on 21st day of March, 2005, wherein the Court of Appeal dismissed the appellants’ appeal and affirmed the decision of the trial High Court. The crucial issue is whether the 4th respondent herein, Governor James Onanefe Ibori of Delta State has been properly and adequately identified by the appellants, during the trial in the High Court, as the James Onanefe Ibori who was convicted by the Upper Area Court, Bwari in case No. CR-81-95. C.O.P v. James Onanefe Ibori on the 28th September, 1995, for the offences of negligent conduct and criminal breach of trust and sentenced accordingly. The matter started this way: On the 28th of September, 1995. the Upper Area Court, Bwari FCT in a criminal case No. CR-81-95 convicted one James Onanefe Ibori for the offences of negligent conduct and criminal breach of trust under Summary Trial Procedure under the provisions of section 157 of the Criminal Procedure Code of the former Northern Region of Nigeria, applicable to the Federal Capital Territory, Abuja. The said convict was sentenced to a fine of N1000 or one year imprisonment on the information.

On the 3/2/2003, the appellants herein filed suit FCT/HC/CY/321/2003, by originating summons in the High Court of the Federal Capital Territory (hereinafter referred to as FCT) against Chief Audu Ogbeh, Chief Vincent Ogbulafor, Peoples Democratic Party and Independent National Electoral Commission (later struck out as a defendant on the application of the plaintiffs) seeking a declaration that, James Onanefe Ibori is by virtue of the conviction aforesaid at Bwari Upper Area Court not qualified to contest election as the 3rd respondent’s gubernatorial candidate for the 2003 Delta State Governorship Elections. The plaintiffs also claimed injunctive reliefs aimed at restraining the 1st to the 3rd respondents from presenting the said James Onanefe Ibori to the INEC as their candidate for the said elections. On being aware of the pending suit, the 4th respondent herein, successfully applied to be joined as the 5th defendant. At the trial after the close of pleadings, the trial Judge Mukhtar, J. directed counsel to formulate the issues they considered “germane for the determination of the case.” The court having earlier admitted with the consent of all the parties the record of proceedings of the Upper Area Court, Bwari in CR/81/95 – C.O.P v. James Onanefe Ibori as exhibit A, the issue raised with the consent of all the parties was:

“Whether on the face of exhibit A, the record of proceedings of the Upper Area Court Bwari in CR/81/95 – C.O.P. v. James Onanefe Ibori, the accused was convicted.”

After the addresses of counsel, in his ruling delivered on 24/3/2003, the learned trial Judge ruled on that narrow issue that there was “no conviction against the accused in that case”, and dismissed the claims of the plaintiffs in their originating summons. The plaintiffs appealed against the ruling. The Court of Appeal, after criticising the procedure adopted by the trial Judge, held that on the face of exhibit A, there was a conviction of the person therein named as the accused. The court however held that in order to determine the identity of the person convicted, made an order remitting the case to the High Court for trial de novo in order to establish the identity of the convicted person. See Agbi v. Ogbeh (2003) 15 NWLR (Pt. 844) 493.

The 4th respondent herein felt dissatisfied with the decision of the Court of Appeal and appealed to this court, the appellants also felt unhappy with the decision and also cross-appealed. In its judgment, this court on the 6th of February, 2004, dismissed both the appeal and the cross-appeal and affirmed the decision of the Court of Appeal and sent the case to the High Court for trial de novo. This court further ordered the parties to file fresh pleadings to clearly plead the issues in dispute. It should be noted that this court has unequivocally held that the issue of the conviction of one James Onanefe Ibori was settled beyond any dispute, what remains in dispute was whether the 4th respondent was in fact the person convicted in exhibit A in CR/81/95 C.O.P. v. James Onanefe Ibori. See Ibori v.Agbi (2004) 6 NWLR (Pt.868) 78.

The trial de novo came before Hussein Mukhtar, J. who ordered pleadings as directed by the Supreme Court. The plaintiffs filed their statement of claim and the defendants their statement of defence. The 5th defendant, the 4th respondent herein also filed a counter-claim. On the 30th day of June the plaintiffs called their witness, (PW1) Alhaji Muhammed Awwal Yusuf, the presiding Judge of the Upper Area Court, Bwari, who along with another court member, Mr. Kuku Fajemi, on the 28/9/1 995, tried and convicted one James Onanefe Ibori in case No. CR/81/95. PW1 was vigorously cross-examined. After PW1, the plaintiffs closed their case. The Chief Registrar of the High Court FCT, Abuja was subpoenaed on the application of the 4th defendant only to produce documents and was in the witness box and sworn as DW1 on the 5/7/2004. The 1st to 3rd defendants did not call any evidence at the new trial. The 4th defendant called one witness: Barrister Bala Ngilari, DW2. In the course of the new trial, the following exhibits were tendered: A, B, C, C1 D, D1, E, E1, F, CP-1, G, H, 1, J and K.

Exhibit A – Judgment of the Supreme Court in SC.97/2003.

B – Certified Record of proceedings of the Supreme Court in SC.97/2003.

C- Criminal Complaints Book of Upper Area Court Bwari.

D- Criminal Record Book of Bwari Upper Area Court.

E1- Statement of PW1 to police on 7/2/2004

E2- Statement of PW1 to the police on 10/2/2004.

F- Report of the Chief Judge, High Court FCT, Abuja.

C1- Certified true copy of exhibit C.

D1- Certified true copy of exhibit D.

G- Certified true copy of statement of Shuaibu Anyabe to the police.

H- Certified true copy of the statement of Kuku Fajemi, member of the court that convicted the accused in CR/81/95 to police.

CP1- Certified true copy of police report 14/2/2003.

J- Certified true copy of 4th defendant’s petition to the President of the Federal Republic of Nigeria dated 27/1/2005.

I – Certified true copy of This Day Newspapers vol. 9 No. 2893 of Tuesday, 25/3/2003.

K – Certified true copy of the 4th defendant’s statement to the police.

At the end of taking evidence, written addresses were ordered to be filed by counsel. On the 29/10/2004, learned counsel adopted their written addresses. On the 8/11/2004, the learned trial Judge delivered his judgment dismissing the plaintiffs’ claims and granted partially, the claims of the 4th defendant in his counter-claim. The plaintiffs were unhappy and accordingly appealed to the Court of Appeal. After the consideration of the briefs and the arguments of counsel, the Court of Appeal on the 21st of March, 2005 delivered its judgment dismissing the plaintiffs/appellants appeal. – Agbi v. Ogbeh (2005) 8 NWLR (Pt.926) 40. The plaintiffs still felt unhappy with the decision of the Court of Appeal and have now appealed to this court with the leave of the Court of Appeal. The notice of appeal contains ten grounds of appeal against the judgment of the Court of Appeal. Now in this judgment, the plaintiffs shall be referred to as the appellants, and the defendants as the respondents.

In his brief for the appellants, Chief Gani Fawehinmi, SAN has identified, formulated and submitted the following issues for the determination of the appeal:

“1. Whether the Court of Appeal was right when it held that the trial de novo ordered by the Supreme Court in SC.97/2003 Ibori v. Agbi and 5 Others delivered on the 6th of February, 2004 means a new trial in its entirety i.e. on both the issues of conviction of one James Onanefe Ibori and the identity of the said convict.

2. Whether the Court of Appeal applied a wrong burden of proof in the consideration of the issue of identity of the said convict referred by the Supreme Court to the trial court by putting on the appellants a burden of proof under s. 138(1) of the Evidence Act, i.e. proof beyond reasonable doubt instead of putting on the appellants a burden of proof by preponderance of evidence or balance of probabilities under section 135(1) of the Evidence Act and thereby came to a wrong decision.
3. Whether the Court of Appeal was right when it held that there was no evidence on printed record to show that the learned trial Judge went outside the scope of the issue referred by the Supreme Court for trial before him by admitting exhibits C, D, E1, E2, CP-1, C1, 01, G, H, I, J and K since they are relevant to both conviction and identity which the Court of Appeal considered inseparable.
4. Whether the Court of Appeal was right in reopening and determining the issue of conviction which has been settled by the Supreme Court to influence their consideration of, and decision on the issue of identity.
5. Whether the Court of Appeal was right in treating the evidence of PW1, Alhaji Muhammed Awwal Yusuf as unreliable and biased and therefore not credible to establish the identity of the 4th respondent as the James Onanefe Ibori who was convicted in CR/81/95 on the 28/9/1 995 for the offences of negligent conduct and criminal breach of trust and sentenced to a fine of N 1000 or one year imprisonment on both counts.
6. Whether the Court of Appeal was right when it held that there were material contradictions in the evidence of PW1, Alhaji Muhammed Awwal Yusuf as to the identity of the James Onanefe Ibori of Delta State which he (PW1) convicted on the 28/9/1995 at the Upper Area Court, Bwari for the offences of negligent conduct and criminal breach of trust and sentenced to a fine of N1000.00 or one year imprisonment on both counts.
7. Whether the Court of Appeal was right in coming to the conclusion that the investigation reports of the Chief Judge of the FCT (exhibit F) and the police final report were irrelevant to the issue of the identity remitted by the Supreme Court to the High Court for determination and thereby refusing to accord any probative value to them.
8. Whether the relief granted to the 4th respondent was sought in his counter-claim.”

The learned counsel for the 1st to the 3rd respondents adopted the above issues while the learned counsel for the 4th respondent more or less also adopted the issues though differently worded.

I have deliberately reproduced the issues verbatim in order to demonstrate their verbosity and prolixity, having regard to the narrow focus on which this appeal and the whole case revolve. At the beginning of the judgment, I have recounted how the Court of Appeal and this court decided that the issue of whether there was conviction of one James Onanefe Ibori was settled. It was decided that in criminal proceedings No. CR/81/95 – C.O.P. v. James Onanefe Ibori, Bwari Upper Area Court on the 28/9/1995 convicted the accused therein. This court specifically held at pages 123-124 of the report in Ibori v. Agbi (supra) thus:

“For the above reasons, I am satisfied that the court below upon the evidence which I have also reviewed in this judgment rightly came to the conclusion that exhibit A depicted that a James Onanefe Ibori was convicted by reason of exhibit A,”

Further, this court concluded in the leading judgment by Ejiwunmi, JSC as follows:

“In conclusion, I must hold that for all I have said in this judgment, there is no merit in the main appeal and the cross-appeal filed against the judgment of the court below, xxxx. For the avoidance of doubt I hereby restate them (orders of the court below) as follows:

1. The sole issue before the High Court was as agreed by the parties,
2. The sole issue being whether by exhibit A there was conviction against anyone,
3. That the court below was right when it held that contrary to what the High Court held, exhibit’ A’ xxxx showed that the defendant in that case was duly convicted for the offences for which he was charged, that the court below rightly held that it was not established by the trial court as to whether it was the 5th defendant (4th respondent herein) who was the person convicted by the Bwari Upper Area Court as per exhibit ‘A’ and the matter be remitted to the High Court of the FCT for trial de novo before another Judge of that court.

That for the purpose of that new trial, parties are to file fresh pleadings wherein they are to clearly

plead the issue in dispute.’

The only issue in dispute as between the parties was not the question of whether anyone has been convicted but whether the 4th respondent herein was identified as the person convicted. That is the only issue for determination by the High Court as ordered by this court in the case under reference.

Issues 1, 3 and 4.

Now, issues 1, 3 and 4 contain complaints that the lower courts reopened the issue of the conviction of one James Onanefe Ibori by the Bwari Upper Area Court. Or whether in fact, the lower courts misunderstood the order made by this court for the trial de novo. It was also argued that the admission of the exhibits and their use by the trial court occasioned a miscarriage of justice, in that they influenced the lower courts to mix and confuse the issue of conviction and that of identification.

The trial Judge, in my view, did not lose focus of the new trial as ordered by this court. He did not derail nor did he re-open the issue of conviction, he said in his judgment – see page 697 volume 1 of the record of appeal:

“From the evidence so far led before this court and the address of learned counsel in this matter and the Supreme Court Order for trial de novo, there is glaringly one single issue for the determination in this matter and that is whether or not the 4th defendant in this suit is the person convicted by Upper Area Court Bwari in case No. CR/81/95 on the 28th day of September, 1995.”

It is, however contended by the learned counsel for the appellants that the Court of Appeal, misconceived the limited nature of the dispute between the parties and abandoned the clear evidence of identity given by PW1 and concentrated on the irrelevant issue of whether there was any conviction at all. This, in my view, is not correct, the Court of Appeal summarized the position in the lead judgment of Adekeye, JCA, at page 1348 of volume 2 of the record of appeal thus:

“I have to chip in that the issue of conviction and the identity of the convict cannot be divorced from each other or placed in any separate watertight compartment. It is a matter of one step before the other. The same documents might be required to prove them as in this case. What is more important and significant is that these documents were tendered with the consent of all the parties. Exhibits E- E1 were admitted because the appellants’ counsel agreed they were relevant. Since they were properly tendered and admitted in evidence by the parties they cannot be discountenanced or expunged from the record in as much as the decision to admit them is not null and void. xxxxx “There is no evidence on printed record to establish that the learned trial Judge went outside the scope of the issue for trial before him.”

In my view, what the court below did was to confine itself to the discussion on the single issue remitted to the High Court for consideration by the Supreme Court. The appellants as the plaintiffs, if they were to succeed in their action, were duty bound to plead and lead clear and credible evidence identifying the 4th respondent as the person convicted. The duty is on the appellants to prove their case and not on the respondents to disprove. In any event, the reference by the Court of Appeal to the decision in Fadiora v. Ghadeho (1978) 3 SC 219, and Biri v. Mairuwa (1996) 8 NWLR (Pt. 467) 425 were merely to draw attention to the judicial definition and meaning of trial de novo and no more. It has not been shown that the Court of Appeal decided the matter at large or reopened the issue of the conviction. It is not also established that the lower courts were influenced by the documentary exhibits tendered with the consent of the parties to reach the decision that the convict in the aforesaid criminal trial before the Bwari Upper Area Court was not identified as the 4th respondent. The duty to prove that the 4th respondent is the person convicted is a duty on the appellants. It is their responsibility to prove the case, they are the proponents of the action, although there may be an occasion when the burden of proof may shift but this can only arise when the plaintiffs have satisfactorily discharged their burden. To establish the case, the appellants as plaintiffs only called PW1 and of course agreed to the tendering by consent of all the documentary exhibits.

Even if the Court of Appeal has made some mistakes in its consideration of the matters brought before it, it is now elementary law, that it is not every mistake or error in a judgment that will result in an appeal being allowed. It is only where the error is so substantial in that it has occasioned a miscarriage of justice that an appellate court should interfere. See Alii v. Alesinloye (2000) 6 NWLR (Pt. 660) 177 at 213; Onajobi v. Olanipekun (1985) 4 SC (Pt. 2) 156; Oje v. Babalola (1991) 4 NWLR (Pt. 185) 267; Kraus Thompson Org. Ltd. v. Unical (2004) 9 NWLR (Pt. 879) 631.

An error in a judgment can only be a ground for allowing an appeal if and only if it is substantial in the sense that it would have affected the judgment of the lower court one way or the other or it has occasioned miscarriage of justice. In the instant case, the lower court even if it made a mistake in affirming the admission of those documentary evidence, it has not been shown or established that the admission of those documentary evidence were crucial and that they occasioned any miscarriage of justice. The fundamental issue before the lower courts is whether it is established that the 4th respondent was the person convicted by Bwari Upper Area Court on the 28/9/1995.

In attempting to prove their case, the appellants called PW1, Alhaji Awwal Yusuf, the presiding Judge of the Upper Area Court. He gave his evidence which was not believed by the trial court and the Court of Appeal. The appellants also pleaded as per paragraphs 11, 13, 14 and 15 of the statement of claim as follows:

“11. At the time of his conviction on the 28/9/1995 James Onanefe Ibori now Governor of Delta State was a subcontractor to Spibat Nigeria Ltd. at Usama Dam near Bwari at the Federal Capital Territory Abuja.

13. At all material times, there was no other person other than Governor James Onanefe Ibori who was bearing James Onanefe Ibori. In this respect the plaintiffs will rely at the trial of this action on the 1991 census conducted by the Nigeria Population Commission in Delta State.
14. At the time the general elections were conducted particularly the Governorship election in Della State by INEC, there was only one person bearing James Onanefe Ibori in the register of voters compiled by INEC for Delta State. The plaintiff will rely at the trial of this action on the register of voters for Delta Slate compiled by INEC in 2002.
15. All his life, the 5th defendant has borne the name James Onanefe Ibori. As a pupil of two primary schools, as a student of Baptist High School x x x. As a student of University of Benin, 1982 – 1986, as a business man and as the Governor of Delta State. He has always been and he is still James Onanefe Ibori.”

The appellants unfortunately led no evidence in proof of these averments. The appellants also failed to call any other witness beside PW1 to establish the identity of the convict. Under the circumstances, it is obvious that issues 1, 3 and 4 are not made out. I resolve them against the appellants. Both the lower courts considered the pleadings and the evidence led by the plaintiffs and rightly came to the conclusion that they failed 10 prove the identity of the convict aforesaid.

Issue 2

The appellants’ complaint under this head is about the burden of proof placed by the lower court on the appellants. A burden of proof under section 138(1) of the Evidence Act i.e. proof beyond reasonable doubt was placed against the appellants. In my view, the Court of Appeal merely affirmed that the evidence led by the appellants in proving that the 4th respondent was the person convicted by Bwari Upper Area Court in CR/81/95 on the 28/9/1985 is not credible. The way the issue is written is confusing. It sounds like it was the Court of Appeal that placed a wrong burden of proof. The starting point in my view, is the judgment of the trial court. The learned trial Judge in his judgment at page 724 of vol. 1 record of appeal held thus:

“With the material contradictions and serious inconsistencies especially in the evidence of PW1, the irresistible conclusion must be that the 4th defendant has not been sufficiently identified as the person convicted by the Upper Area court Bwari in case CR/81/95 between – Commissioner of Police v. James Onaneje Ibori on 28/9/1995, even on the balance of probabilities. The standard of proof being beyond reasonable doubt has not been met where there is not only a reasonable doubt, but in fact a very serious doubt raised by the material contradictions and inconsistencies in the evidence of PW1 and exhibits C and D.” (Emphasis supplied).

Thus, although the learned trial Judge seems to think that the plaintiffs/appellants were bound to prove their allegations under section 138 of the Evidence Act, the learned trial Judge was of the opinion, that even proof under section 135 was not satisfied in that the evidence of PW1 was unreliable and full of inconsistencies.

In its judgment, the Court of Appeal after examining the scope, and definition and the application of section 138(1) and section 135 of the Evidence Act, came to the conclusion that the pleadings reveal that there was a conviction and the sole issue outstanding is to determine the culprit, or the guilty party and relate or link it with the 4th respondent. “The issue therefore is identification for the purpose of a crime and that the standard stipulated by law is one of proof beyond reasonable doubt.” The court after quoting the opinion of the learned trial Judge on the quality of the evidence led before him, full of material contradictions and serious inconsistencies, his finding that there was no proof even on the balance of probabilities is unimpeachable. This means that even though the Court of Appeal held that the appellants were duty bound to prove the identity of the culprit beyond reasonable doubt, the quality of the evidence led by the appellants before the trial court was not even sufficient on the balance of probabilities under section 135 of the Evidence Act.

In my view, based on the evidence adduced by the appellants before the trial Judge and the findings of the learned trial Judge that the evidence adduced was insufficient proof even on the balance of probabilities makes the issue of proof beyond reasonable doubt irrelevant. Even if the lower courts made a mistake in supposing that the appellants were to prove the identity of the convict beyond reasonable doubt, such an opinion did not occasion any miscarriage of justice, because the proof offered and accepted by the trial court and this is clear in the record, and the Court of Appeal was insufficient even in a situation where the proof required is merely on balance of probabilities. Thus, the argument and submissions of counsel are irrelevant. No.2 against the appellant.

Issues 5 and 6

Issues No.5 and 6 can conveniently be dealt with together. The issues concern the credibility or otherwise of the evidence of PW1. Alhaji Muhammed Awwal Yusuf on the identity of the 4th respondent as the James Onanefe Ibori who was convicted by him in CR/81/95 on 28/9/1995. for the offences of negligent conduct and criminal breach of trust and sentenced to a fine of N1000 or to one year imprisonment on both counts. Learned counsel for the appellants argues that both the trial court and the Court of Appeal were in gross error to have held that the evidence of PW1, Alhaji Mohammed Awwal Yusuf is unreliable and therefore not credible enough to establish the identity of the 4th respondent as the James Onanefe Ibori, he convicted in CR/81/95. It is submitted that the findings of the Court of Appeal was only induced by the consideration of extraneous matters as to whether or not James Onanefe Ibori was even convicted and this prompted the consideration of issues and documents totally irrelevant to the issue of identity which was the only issue remitted for trial. It is argued that the evidence of PW1 is clear as to the identity of the person he convicted in CR/81/95 on the 28/9/1995. That PW1 categorically identified the 4th respondent as the convict. It is further submitted, that PW1 was consistent on his identification of the 4th respondent during his cross-examination and he remained unshaken. It is submitted that it was only the 4th respondent who could controvert what PW1 said in identifying the 4th respondent as the person he convicted. It is argued that the 4th respondent should have given evidence – see Lawan v. Yama (2004) 9 NWLR (Pt. 877) 117.

It is again argued that the evidence of DW2, Barrister Ngilari, did not controvert or adversely affect the unequivocal evidence of identity given by PW1. It is again added that the evidence of DW2 rather supported the evidence of PW1. It is further submitted that the 4th respondent should have testified to controvert the evidence of PW1 in relation to the accusations made by PW1 against him. Learned counsel referred to the case of A.-G., Kwara State v. Olawale (1993) 1 NWLR (Pt. 272) 645 at 665 – 666. The evidence of PW1 stands unchallenged vide – Ezeanah Akanni v. Makanju (1978) 11-12 SC 13; Ezeanah v. Alia (2004) 7 NWLR (Pt. 873) 468. It is submitted that the concurrent findings of the two lower courts on the issue of unreliability of the evidence of PW1 is unsupportable by the evidence on record and should be reversed vide – Ibhafidon v. Igbinosun (2001) 8 NWLR (Pt. 716) 653; Dogo v. State (2001) 3 NWLR (Pt. 699) 192; Olatunde v. Abidogun (2001) 18 NWLR (Pt. 746) 712; Nziwu v. Onuorah (2002) 4 NWLR (Pt.756) 22; Adimora v. Ajufo (1988) 3 NWLR (Pt. 80) 1; Motunwase v. Sorungbe (1988) 5 NWLR (Pt. 92) 90; Nwaebonyi v. The State (1994) 5 NWLR (Pt.343) 138; Ugoh v. Abllrillle (1994) 8 NWLR (Pt. 360) 1; Ezeonawu v. Onyechi (1996) 3 NWLR (Pt. 438) 499; Dieli v. Iwuno (1996) 4 NWLR (Pt. 445) 622; Eholor v. Osayande (1992) 6 NWLR (Pt. 249) 524. It is finally submitted that on the authority of these cases, this court has the duty to interfere with the concurrent findings of fact.

On the issue of the contradictions which the learned trial Judge attributed to the evidence of PW1 and which the Court of Appeal agreed, it is submitted that the alleged contradictions are completely immaterial to the issue of identity. It is further submitted that the substance of the evidence of PW1, Alhaji Muhammed Awwal Yusuf on the identity of the 4th respondent as the person he convicted was clear and uncontradictory. That the learned trial Judge without making his own findings, merely adopted the contradictions enumerated in the written address of the respondents. It is submitted that the alleged contradictions either touch on the issue of conviction or on matters clearly outside the purview of the new trial. In his brief for the appellants. Chief Gani Fawehinmi, SAN has identified and explained 25 “alleged” contradictions which were relied on by the learned trial Judge and affirmed by the Court of Appeal. It is submitted that the outlined contradictions were not contradictions as such, as they did not concern the relevant issue of the identification of the person convicted by the Upper Area Court aforesaid but rather the issue of whether any person has been convicted or not which issue was settled by the Supreme Court.

As shown above, the learned counsel for the appellants identified no less than 25 contradictions and inconsistencies found by the learned trial Judge in the evidence of PW1. There is no doubt in my mind that the learned trial Judge had meticulously appraised and evaluated the evidence of PW1 before he came to the conclusion he reached that the evidence was unreliable. The learned trial Judge evaluated the evidence of PW1 from pages 683 – 690 of the record and from pages 709 to 723, the learned trial Judge reviewed and considered the submission of counsel in relation to the evidence adduced at the trial. In respect of the evidence of PW1, the learned trial Judge at page 732 of the record stated;

“Where the memory of PW1 has been faulted with regard to even more recent happenings of events that occurred at virtually the same time as the conviction in question, it is difficult for one to say that the evidence of PW1 in this case is reliable or credible enough, more so when it is full of material contradictions.”

The law is settled that in ascribing probative value to the testimony of a witness, the court takes into consideration, whether the testimony is cogent, consistent and in accord with reason and in relation to other evidence before it. In the determination of the credibility of witnesses, the demeanour, personality, reaction to question under examination are all factors to be taken into consideration. The determination of the credibility of a witness is within the province of the trial Judge, where the veracity of a witness is in doubt, his evidence should carry no weight.

It is trite law that the appraisal of evidence and the ascription of probative value of such evidence is the primary function of the trial court. Thus, where the issue turns on the credibility of witnesses, an appellate court which has not seen the witnesses must defer to the opinion of the trial court, in such cases, the opinion of the trial court ought normally to be preferred. See Fashanu v. Adekoya (1974) 6 SC 83; Sagay v. Sajere (2000) 6 NWLR (Pt. 661) 360.

The observation of the demeanour and the reaction of a witness to questions which are essential factors in the determination of the credibility of testimony and the evaluation of the weight of evidence, cannot be reproduced in the printed record. About these important factors, an appellate court is only left to guesses and surmises.

It is trite law, that a trial court is the best Judge of his domain as it relates to believing or disbelieving a witness. An appeal court will not interfere unless it is shown that inference drawn by the trial Judge was not supported by the evidence and the facts before him or was perverse. See Ebba v. Ogodo (1984) 1 SCNLR 372; Nnorodim v. Ezeani (2001) 5 NWLR (Pt. 7(6) 203.

In his judgment, the trial Judge said at page 709 of vol. 1, thus: “The evidence led by the plaintiffs in the purported xxxxx is riddled with contradictions and speculations all creating doubts. Material contradictions and doubts created by the evidence of PW1 and the exhibits, all creating doubts as to the identity of the 4th defendant as the person convicted in the proceedings of 28/9/1995.”

Thereafter, the learned trial Judge proceeded to consider the contradictions and factors leading to the doubt on the credibility of the evidence of PW1 from that page 709 to page 723. The learned trial Judge made his findings at page 724. Thus:

“With the material contradictions and serious inconsistencies especially in the evidence of PW1, the irresistible conclusion must be that the 4th defendant has not been sufficiently identified as the person convicted by the Upper Area Court, Bwari in case No. CR/81/95, between Commissioner of Police v. James Onanefe Ibori on 28/9/95, even on the balance of probabilities xxxxx.

The Court of Appeal in its consideration of all the above, affirmed the findings of fact that the evidence of PW1 was unreliable. I am of the opinion that these are concurrent findings of fact – that the evidence of PW1 is shown to lack credibility, and I am not persuaded otherwise by the submissions of the learned counsel for the appellants.

The learned trial Judge based his findings on the unreliability and lack of credibility on the evidence of PW1 which was the only evidence the appellants adduced out of so many avenues open to them. They could have called, (1) the second member of the trial court (2) the police prosecutor, (3) the Registrar of the court, (4) the complainant of the alleged crime – all these persons can easily testify as to whether the 4th respondent was the person tried and convicted or not. For very inexplicable reasons, the appellants failed to call these persons to testify. The appellants also failed to lead evidence in proof of paragraphs 11, 13, 14 and 15 of the statement of claim. Both the learned trial Judge and the Court of Appeal rightly in my view, rejected the evidence of PW1 as lacking in credibility. Credible evidence in this connection means the evidence worthy of belief and for evidence to be worthy of belief and credit, it must not only proceed from credible sense, it must be credible in itself in the sense that it should be natural, reasonable and probable in view of the entire circumstances. The testimony of PW1 in the instant case casts doubts on the trial Upper Area Court Judge, and the evidence given in my opinion, rightly rejected. In the instant case, it is evident that the view of the learned trial Judge on the credibility of the evidence of PW1 was not only based on the demeanour of the witness, but also based on the contradictions in his evidence. An appellate court has no jurisdiction to supplant its own views in place of the trial court. The Court of Appeal rightly as said above, affirmed the findings and I also find no valid legal reason to interfere. It is elementary law, that an appellate court such as the Supreme Court, should not disturb the concurrent findings of fact of two lower courts unless there are very special circumstances and in my view, in the instant case, the appellants have failed to show any cogent reason for interference. In the end, I also resolve issues 5 and 6 against the appellants.

Issue No.7

This issue is concerned with the relevance and the probative value of exhibit P, the report made by the Chief Judge of the PCT to the Chief Justice of Nigeria and the Inspector General of Police final report in the matter. On these documents, the Court of Appeal held at pages 1362- 1363 of the record of appeal thus:

“The report of the Chief Judge and the police final report are both before the court. The former report was at the instance of the Chief Justice of Nigeria, and the latter at the instance of the President of the Federal Republic of Nigeria. Even if they form part of the evidence before the court, proper foundation must be laid to give them probative value. The directive of the Chief Justice to the Chief Judge of the FCT is in the course of duty. It is meant to be an administrative investigation into the issue of tampering with the records of court. This document has nothing to do with the Order of the Supreme Court to the High Court on the single issue for determination in this case. The Chief Judge did not write his report for any judicial purpose not being tribunal set up for that purpose. The police final report was tendered during committal proceedings relating to this act. Even if the learned trial Judge has looked at it and apportioned probative value, it would not have affected the quality of the evidence of PW1, and the totality of the evidence before the court to establish the case of the appellants. The evidence in this case before this court is on the printed record, this court has examined the same and has failed to see where the findings of fact and conclusion of the learned trial Judge is perverse and or has occasioned a miscarriage of justice. He had no and experienced that unique advantage of seeing and hearing the witnesses and watching their demeanour in court. Even printed record gave an impression of PW1 as a witness whose memory failed him as regards every other information except saying repeatedly that-

“I don’t doubt that I convicted James Onanefe Ibori.”

It is not certain whether the foregoing is borne out of his conviction or is a form of a concocted evidence so that he may not derail further under cross-examination or according to him to satisfy his personal interest. xxxxxxx.”

Now, in his report, exhibit F, the Chief Judge of the FCT opined that:

“From all available evidence it is clear that the Upper Area Court, Bwari tried and convicted James Onanefe Ibori for negligent conduct and criminal breach of trust on 28/9/1995. Such evidence also points to the fact that the present Governor of Delta State was the same James Onanefe Ibori that was so tried and convicted on 28/9/95 for the offences stated:’

It is submitted by the learned counsel for the appellants, that both lower courts were wrong not to have used this statement in the report as evidence offered in proof of the appellants’ claim that it was the 4th respondent who was convicted. It is submitted that since the report was tendered from the bar with the consent of all counsel it is relevant and admissible and the Court of Appeal was in error to have held that no proper foundation was laid for its admission in evidence.

On the question of the police final report, it is argued to be part of the records even if not as an exhibit before the court and indeed the report was produced at the instance of the 4th respondent with reference to the police final report, the argument of counsel for the appellants is clearly misconceived. The police final report did not identify the 4th respondent as the person convicted. It merely stated that “one James Onanefe Ibori was convicted,” in my view, it does not enhance the case of the appellants in any way.

It is argued that the court was wrong not to have given probative value to the reports vide section 39 of the Evidence Act. Learned counsel relied and cited the case of Ayeni v. Dada (1978) 3 SC 35; Aranda v. Ifelagba (2003) 17 NWLR (Pt. 84) 274; Adeleke v. Iyanda (2001) 13 NWLR (Pt. 729) 1 Ogbunyiya v. Okuo (1979) 6-9 SC 32; Agbaisi v. Ebikorofe (1997) 4 NWLR (Pt. 502) 630. It is finally submitted that the failure of the courts to give probative value to the documents before the court has occasioned a miscarriage of justice.

Exhibit F, the report of the investigation conducted by the Chief Judge Abuja, even if admissible and relevant for other purposes cannot be relevant as proof of the identity of the 4th respondent as the person convicted by Bwari Upper Area Court. From its contents with reference to the identity of the person convicted, it is a mere conjuncture, speculation or an opinion. It is trite law that opinion evidence is irrelevant and the lower courts are right to have rejected the opinion of the learned Chief Judge as contained in his report that it was the 4th respondent who was convicted. Section 39 of the Evidence Act does not apply because the Chief Judge was not acting under any statutory authority but was merely performing an administrative duty assigned to him by the Chief Justice of Nigeria. I also agree with the views of the learned counsel for the respondents that exhibit F offends against section 36(1) of the Constitution of the Federal Republic of Nigeria, in that the learned Chief Judge in his investigation did not hear the 4th respondent before he came to the conclusion that the 4th respondent was the person convicted. Even if exhibit F was as the result of an Administrative Tribunal, the need to hear both sides has always been emphasized. See Adigun v. A.-G., Oyo State (No.1) (1987) 1 NWLR (P1. 53) 678. Without much ado, I am also of the view that exhibit F, the Investigating Report of the Hon. Chief Judge of the FCT Abuja and the police final report have no evidential probative value and the lower courts were right in discountenancing them.

It is trite law, that any piece of evidence which slips into the record without passing the test of admissibility is not legal evidence and is liable to be expunged even if admitted by consent. See Saidu v. State (1982) 4 SC 41; James v. Mid Motors (Nig.) Co. Ltd. (1978) 11-12 SC 31; Alade v. Olukade (1976) 2 SC 183. I accordingly find no merit on the complaint on the 7th issue. I resolve the issue against the appellants.

Issue No.8

The complaint under this head is concerned with the relief granted the 4th respondent on his counter-claim. It is submitted that the trial court and the Court of Appeal were in error to have granted the 4th respondent, the relief he did not seek in his counter-claim. In his counterclaim, the 4th respondent claimed the following reliefs;

“(i) A declaration that the 5th defendant never appeared nor was he convicted for the offence of negligent conduct or criminal breach of trust contrary to the provisions of section 312 and section 196 of the Penal Code or any other offence at all by the Upper Area Court, Bwari, Abuja in case NO. CR-81-95 on the 28/9/95 or any other date whatsoever.

(ii) A declaration that even if the said case No. CR-81-95 exists the 5th defendant is not the person referred to in the said charge or case, as he has never appeared nor convicted by the Upper Area Court, Bwari, Abuja in the said case, on the said date or any other date at all.

(iii) An Order setting aside the said judgment as same is a product of fraud, illegality a nullity and therefore void ab initio.

(iv) An Order of injunction restraining the plaintiffs their agents assigns and surrogates from linking the 5th defendant in any manner whatsoever in connection pertaining to the case No. CR-81-95 by the Upper Area Court, Bwari, Abuja of 28/9/1995, such a case does not exist.”

In his judgment, the learned trial Judge held at pages 727 – 728 of the record as follows:

“The counter-claim succeeds to the extent of the 4th defendant’s claim for a declaration that no credible evidence has been laid before the court linking him with the commission of the alleged offences or identifying him as the person tried by the Upper Area Court, Bwari in case No. CR-81-95 on 28/9/95 and convicted for the offences of negligent conduct and criminal breach of trust,

the evidence laid by the plaintiffs has been so much discredited and being full of material contradictions and inconsistencies.”

It is submitted by the learned counsel for the appellants that what was granted to the 4th respondent by the trial Judge and affirmed by the Court of Appeal was not what the 4th respondent claimed. While it is true that the 4th respondent’s claim is not identical word for word with what was granted, in my view, the effect is clearly the same. It is settled and elementary law that a court of law is not allowed to grant what is not asked for or claimed. The court is neither a charitable institution nor Father Christmas, its duty in a civil claim is only to render unto a party according to his proven claim.

I have reproduced both what the 4th respondent claimed and what was awarded. In my view, the reasonable interpretation of the award is that since the appellants have failed to prove their case, that it was the 4th respondent who was convicted by the Bwari Upper Area Court, the counter-claim of the 4th respondent having regard to the pleadings and the other legal documentary evidence accepted by the learned trial Judge, the counter-claim of the 4th respondent necessarily succeeds in that he was not the one convicted by the Bwari Upper Area Court. The core issue for determination in the entire case is whether or not the 4th defendant in the suit was the person convicted aforesaid. In my view, the trial court merely granted prayers (i) and (ii) of the counter-claim and rightly in my view, refused to grant the other prayers contained in the counter-claim. The second complaint of the appellants under this head is that the 4th respondent’s counter-claim ought not to have been granted at all because he personally failed to lead evidence in proof of the claims. It is also elementary and trite law, that a party in a case need not appear in person to give evidence on his own behalf provided that he could otherwise present his case through other means e.g. by admission, or by tendering of documents from the bar. Even the appellants did not appear to testify at the trial. Could it be said they ought to lose on that ground

The Court of Appeal in my view, rightly affirmed the decision of the trial Judge that the 4th respondent is entitled to the relief granted him in his counter-claim. This issue is also resolved against the appellants.

Although as I mentioned at the beginning of this judgment, what is before us is the narrow issue of whether the appellants have been able to establish the identity of the 4th respondent as the person convicted by the Bwari Upper Area Court, yet any Judicial Officer involved in this determination will notice several unusual portions of the alleged trial at Swan Upper Area Court. Though, it cannot be over emphasized, what is before us is not appeal against the decision of the Upper Area court, the it regularities cannot be ignored. For example:

1. The first information report with which an accused person is arraigned appears not to exist.
2. The trial was purportedly held under section 157 of the Criminal Procedure Code law of the former Northern Region of Nigeria applicable to FCT Abuja, whereby an accused admitting an offence on the First Information Report is summarily convicted. The procedure does not take half a page in the court’s record. The accused in this case purportedly admitted that the First Information Report, but the record of proceedings ran to almost 10 pages.
3. The pages of the proceedings in the record book are not continuous as would be expected of a trial not taking 10 minutes, but is found on many pages on unused lines or remnants of pages covering proceedings of several days.
4. Two Area court Judges sat on the mailer but only PW1 signed the record on that day, the other Judge signed many days afterwards.

In the absence of the First Information Report, one would normally expect the plaintiffs at the High Court, during the trial to find out whether the 4th respondent was the person convicted by bringing in:

(a) The evidence that the 4th respondent was the sub-contractor in the construction of the Usama Dam.

(b) That he was given custody of the missing building materials.

(c) The evidence of the complaint.

(d) The evidence of the police officer who received the complaint, the Investigating Police Officer, the prosecutor etc.

(e) The evidence of the 2nd Judge etc.

But on the whole, the plaintiffs’ case was built round the evidence of PW1. Mallam Awwal Yusuf. The evidence of this man has left much to be desired and the trial High Court Judge totally disbelieved him. The Court of Appeal similarly disbelieved him and rightly in my view, made caustic remarks against him.

This appeal revolves round the concurrent findings of facts by both the trial court and the Court of Appeal. The appellants have completely failed to convince me that the findings are perverse or erroneous or that they were not a product of the proper appraisal and evaluation of the evidence to warrant a disturbance by this court. I accordingly dismiss this appeal and affirm the decisions of the lower courts.

Both sets of the respondents herein are entitled to costs assessed at N10,000.00 each.

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SC.63/2005