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

LAWGLOBAL HUB Lead Judgment Report

DAHIRU MUSDAPHER, JSC

This is an appeal against the decision of the Court of Appeal, Abuja Division delivered on 21st day 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 here: PAGE| 2 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 an 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/CV/321/2003 by originating summons in the High Court of the Federal Capital Territory (hereinafter referred to as FCT) against Chief Audu Ogbe, 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 vs. 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. vs. 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 criticizing 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 vs. 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, PAGE| 3 C.O.P. V. James Onanefe Ibori. See IBORI vs. 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 Statements of Defence, the 5th defendant, the 4th respondent herein also filed a counterclaim. On the 30th day of June, the plaintiffs called their witness, (PW1) Alhaji Muhamined Awwal Yusuf, the Presiding Judge of the Upper Area Court Bwari, who along with another court member, Mr. Kuku Fajemi, on the 28/9/1995 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, DW 2. 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, I, 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 PW 1 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 CPI – 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. PAGE| 4 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 May, 2005 delivered its judgment dismissing the plaintiffs/appellants appeal. 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 Exhibit C, D, E1, E2, CP-1, CI, D1, 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 P.W.1, 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 28/9/1995 for the offences of negligent conduct and criminal breach of trust and sentenced of a fine of N1,000 or one year imprisonment on both counts. PAGE| 5 6. Whether the Court of Appeal was right when it held that there were material contradictions in the evidence of P.W.1, Alhaji Muhammed Awwal Yusuf as to the identity of the James Onanefe Ibori of Delta State which he (P.W. 1) 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 N1,000.00 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 counterclaim.” 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 28/9/2995 convicted the accused therein. This Court specifically held at pages 123 – 124 of the report in IBORI VS. 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, xxxxxxxxxxxxxxxxxxxxxxxxx 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 any one. (3) That the court below was right when it held that contrary to what the High Court held, Exhibit “A” xxxxxxxxxxxxxxx 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. PAGE| 6 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 any one 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 reopen 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 P.W.1 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 discounte-nanced or expunged from the record in as much as the decision to admit them is not null and void, xxxxxxxxxxxxxxxxxxxxxxxxxxxxx “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 respondent to disprove. PAGE| 7 In any event, the reference by the Court of Appeal to the decision in Fadiora V. Gbadebo [1978] NSCC 121 at 129, (2002) 3 SCM, 157, Vol. 2 ACLC 88 and Biri V. Mairuwa 1996 8 NWLR (Ft 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 P.W 1 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 Alli 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, (2004) 7 SCM 13. 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, 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 P.W.I, 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 Delta 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 State compiled by INEC in 2002. PAGE| 8 “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 xxxxxx. 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 P.W.1 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 to 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 P.W.1, 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/8 1/95 between Commissioner of Police V. James Onanefe 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 P.W 1 and Exhibits C and D.” [Emp-hasis supplied] This, 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 P.W. 1 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.” PAGE| 9 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 finding 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. I accordingly resolve issue 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 P.W1 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 N1,000 naira or to one year imprison-ment 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 P.W.1, 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 finding 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 P.W. 1 is clear as to the identity of the person he convicted in CR/81/95 on the 28/9/1995. That P.W.1 categorically identified the 4th respondent as the convict. It is further submitted, that P.W.1 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 P.W.1 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 D.W 2 Barrister Ngilari did not controvert or adversely affect the unequivocal evidence of identity given by P.W.1. It is again added that the evidence of D.W.2 rather supported the evidence of P.W.1. It is further submitted that the 4th respondent should have testified to controvert the evidence of P.W.1 in relation to the accusations made by P.W.1 against him. Learned counsel referred to the case of A.G. of Kwara State vs. Olawale (1993] 1 NWLR (Pt 272) 645 at 665 – 666. The evidence of P.W.1 stands unchallenged vide Ezeanah Akanni V. Makanju [1978] 11-12 SC 13; Ezeanah V. Atta [2004] 7 NWLR (Pt 873) 468, (2004) 3 SCM 122. PAGE| 10 It submitted that the concurrent findings of the two lower courts on the issue of unreliability of the evidence of P.W.1 is unsupportable by the evidence on record and should be reversed vide Ibhafidon vs. Igbinosun [2001] 8 NWLR (Pt 716) 653, (2001) 5 SCM 82; Dogo V. State 12001] 3.NWLR (Pt, 699) 192, Olatunde V. Abidogun [2001] 18 NWLR (Pt 746) 712, (2001)1 SCM 205; Nziwu V. Onuorah [2002] 4 NWLR (Pt 756) 22, (2003) 3 SCM 93; Adimora V. Ajufo [1988] 3 NWLR (Pt. 80) J Motunwa’se V. Sorunge [1988] 5 NWLR (Pt. 92) 90. Nwaebonyi V. The State [1994] 5 NWLR (Pt 343) 138, Ugoh V. Aburime [1994] 8 NWLR (Pt 360) 1, Ezeonwu V. Onyechi [1996] 3 NWLR (Pt 438) 499; Dieli V. Iwuno [1996] 4 NWLR (Pt 445) 622 Eholor V. Asayande [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 P.W.1 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 P.W.1, 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 contradiction 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 Fawehmmi, 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 P.W.1. There is no doubt in my mind that the learned trial judge had meticulously appraised and evaluated the evidence of P.W.1 before he came to the conclusion he reached that the evidence was unreliable. The learned trial judge evaluated the evidence of P.W.1 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 P.W.1, the learned trial judge at page 732 of the record stated:- “Where the memory of P.W.1 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 P.W.1 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 conside-ration 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. PAGE| 11 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 opinions 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. 706) 203, (2001) 3 SCM 27.

SC. 63/2005