Joseph Gwawoh V. Commissioner Of Police (1974)

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G. IRIKEFE, J.S.C. 

The appellant here in stood his trial before the Chief Magistrate’s Court Sapele, on the following charge:”That you, Joseph Gwawoh (m) between the month of August and September, 1971, at No.6, Itsekiri Road Extension, Sapele, in the Sapele Magisterial District, stole the sum of 35pounds property of one D.Z. Barhoumi (m) and thereby committed an offence punishable under Section 331 of the Criminal Code, Cap. 28 Vol 1 Laws of the Western State of Nigeria, 1959, also applicable in the Mid-Western State of Nigeria.”

He was convicted at the end of the said trial and sentenced to a term of imprisonment for 18th months.

Thereafter, the appellant unsuccessfully appealed against his conviction to the Sapele High Court and has now appealed to this court against the dismissal of the appeal by that court.

After hearing argument from both counsel for the appellant and that for the respondent in this appeal, we allowed the appeal, quashed the conviction of the appellant and ordered his acquittal and discharge.

We indicated at the time that we would give our reasons later, and we now do so.

The complainant in this case, one Dorinch Zakari Barhoumi, a Lebanese pools proprietor, deposed before the learned Chief Magistrate that, on a date between the months of August and September, 1970, he had handed to the appellant the sum of 60 when the latter called on him at his office. The money was to be used by the appellant in paying the tax due to the Mid-Western State Government on such sums of money as might have been paid to the complainant by stakers on football pools. There is unchallenged evidence before the court of trial that 10% of the total sum staked on pools in any week was payable to government as betting tax.

There is also evidence from the complainant that the sum of 60 which he handed to the appellant was in cash of one shilling denomination and that P.W. 2, one Benson Umudiale and P.W. 3, one Michael Ohioka, witnessed the transaction. Those two men, who were employees of the complainant at the time, gave evidence tending to corroborate the story told by the complainant. The complainant alleged that the appellant only utilised 25 out of the money handed to him in paying the tax due and denied receipt of the balance of 35 which is the subject of this charge.

In his defence, the appellant admitted having served the complainant in the past as accountant and stated that the practice was for the complainant to call at his office with the triplicate copies of stakers’ receipts for each week during the football season. From such receipts he would calculate the total sum paid by stakers and certify 10% of such sum as the tax due to the Mid-Western State Government. Having done so, the complainant would leave with him the sum due as tax as well as an additional sum of 2 representing his transport expenses from Sapele to Benin and back. After paying the tax due at Benin, the appellant would later send the receipt issued by the Government to the complainant. One such receipt is Exhibit “J” tendered at the trial of this case.

The appellant denied having received the sum of 60 from the complainant as alleged and maintained that this charge had been trumped up against him for the following reasons among others:

(a) Because on the occasion when the complainant brought to him the stakers’ returns for weeks 2 and 3 on 23/8/71 and requested that the tax due there on be calculated, he had asked for the production by the complainant of the returns for the previous week (i.e. week 1) and had been told that that was none of his business.

(b) Because he had then reminded the complainant of his earlier fraudulent dealings with the Government of the East Central State which resulted in the closure of his pools office at Enugu. In support of this allegation. the appellant produced exhibits “B” and “C” at the trial.

(c) Because he had compiled a catalogue of all the complainant’s fraudulent activities in the form of a petition Exhibit “H” which he forwarded to the Nigeria Police on 161971 and that the complainant’s subsequent report of a case of stealing 35 was a calculated attempt by him to divert the police from investigating the said allegations.

Learned counsel for the appellant before us relied only on these two grounds,which, with our permission, he argued together:

“1. The learned judge on appeal erred in law in dismissing the appellant’s appeal when the learned acting Chief Magistrate convicted the appellant without .

(a) considering and/or considering adequately the contradictions and other matters which are capable of casting doubt on the case for the prosecution;

(b) first considering and/or considering adequately the defence and making specific findings on the defence”.

In putting across his argument on the above grounds of appeal, learned counsel strenuously attacked those factual pillars on which the decision of the learned Chief Magistrate rested. He drew attention in particular to the following as some of the unsatisfactory aspects in the said decision:

(a) The fact that the complainant whose evidence was accepted had testified to having reported the appellant to the police on 15/9/71, whereas this could not have happened until the latter had made the last payment of 8 in respect of week 4 on 16/9/71 as evidenced by exhibit “r’. It was admitted by the complainant that the appellant made three payments in respect of weeks 2, 3 and 4 in the order of 8, 9 and 8 respectively bringing the total paid to 25.

(b) The fact that the Divisional Police Officer, Sapele, an independent public official called by the appellant, supported his story that a report of fraudulent practices had been made against the complainant before the latter came out with the present charge of stealing 35. This evidence was ignored by the coon in its treatment of the appellant’s case.

(c) The apparent conflict in the testimony as to what happened when the complainant allegedly handed over the sum of 60 to the appellant at his office. Whereas the complainant’s first witness, Benson Umudiale, maintained that one Benedict, was one of those who witnessed the handing over of money to the appellant, his second witness, Michael Ohioka, was equally certain that the said Benedict, was not present.

(d) It being common ground that the money entrusted to the appellant was for the payment of pools betting tax and none other, and it is being established that it was the complainant’s duty to provide the appellant with triplicate copies of stakers’ receipts such as exhibits DD47, EE79 and FF92 from which the tax due is calculated, the fact that the learned Chief Magistrate did not avert his mind to the total failure of the prosecution to call evidence on the tax claim by Government with which the balance of 35 was intended to be settled which also includes !he failure to produce the relevant stakers’ receipts, must have occasioned miscarriage of justice.

(e) If the money was not meant for the payment of tax, which is not borne out by the word, why was if given to the appellant

We no what learned counsel representing the respondent had no real answer to any the matters urged in support of this appeal.

While it is true that an appellate court will be extremely reluctant to interfere with findings of fact made by a court of trial, inasmuch as matters of credibility and reliability are matters falling within its special competence, it will do so in certain cases on clearly settled legal principles.

These principles were adverted to by Lord Thankerton in WAIT or THOMAS Vs. THOMAS (1947) Appeal Cases p. 484 where the learned law Lord had this to say:

“(a) Where a question of fact has been tried by a judge without a jury, and there is no question of misdirection of himself by the judge, an appellate court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial judge’s conclusion.

(b) The appellate court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence.

(c) The appellate court, either because the reasons given by the trial judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he had not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court.

It is obvious that the value and importance of having seen and heard the witnesses will vary according to the class of case, and, it may be, the individual case in question.”

See also BENMAX Vs. AUSTIN MOTOR CO. LTD. 1955 Appeal Cases p.370 where Lord Reid commented thus, at page 376 of the report:

“But in cases where there is no question of the credibility of any witness, and in cases where the point in dispute is the proper inference to be drawn from proved facts, an appeal court is generally in as good a position to evaluate the evidence as the trial judge, and ought not to shrink from that task, though it ought, of course, to give weight to his opinion.”

Also see-OKPIRI VS. JONAH-1961-1 ALL Nigeria Law Reports p.102. ”

The above comments deal with the ascription of probative values to evidence, and although made in respect of civil cases, they apply with equal force to criminal cases. In the instant case, the court of trial had before it an obviously unscrupulous Lebanese pools proprietor who, although he boasted to being a millionaire, yet felt that the appellant was getting under his skin merely because he had dared to tell him to desist from defrauding the government of a benefactor country.

There was clearly enough evidence before the learned Chief Magistrate upon which he could have found that the present charge was motivated by malice and, as we do not intend to speculate on what his attitude would have been had he directed his mind to all the matters raised by counsel for the appellant, we think that an appropriate order in this appeal is one setting aside the conviction of the appellant and substituting therefore a verdict of acquittal and discharge.

Other Citation: (1974) LCN/1848(SC)