Oluwole Akindipe V. The State (2008)
LawGlobal-Hub Lead Judgment Report
MUSA DATTIJO MUHAMMAD, J.C.A.
This is an appeal against the judgment of the State High Court, presided by Hon. Justice J. U. Ogunbuyi, delivered on the 25th day of July 1979. The Appellant and two others were arrested and charged on a four count information. Three of the counts were for demanding money with menaces contrary to and punishable under Section 346 of the Criminal Code Cap 28 Vol.1 Laws of Western Nigeria 1959 and the fourth count being for stealing contrary to Section 224 and punishable under Section 331 (8) of the same code. At the end of the prosecution’s case and following the no case submissions made by Counsel on behalf of all the accused persons, the 3rd accused person was discharged and acquitted on all the four counts while the prosecution having established a prima facie case in respect of the 1st and 3rd counts against the 1st and 2nd Accused persons, the duo were ordered to put in their defences in respect of the two counts.
The Appellant gave evidence in his own defence. He also called one witness. 2nd accused also gave evidence on his own behalf. Nobody testified for the 2nd accused. At the end of the trial, the 1st accused person, Oluwole Akindipe was convicted and sentenced on the two counts, The trial court on the other hand discharged and acquitted the 2nd accused. 1st accused was dissatisfied with the judgment and has appealed to this court on a notice of appeal which contains six grounds.
Parties have filed and exchanged their briefs which at the hearing of this appeal they adopted and relied upon as their arguments for or against the appeal.
The Appellant’s brief at paragraphs 4.01 to 4.04 contains three issues distilled from the grounds in the Appellant’s notice of appeal as having arisen for the determination of the appeal. The three issues read as follows:-
- Whether the learned trial Judge, in considering the No Case submission made by the Defence Counsel, applied this Law correctly. (Ground 1);
- Whether the evidence of the defence witnesses were properly evaluated and if not whether a miscarriage was occasioned to the Appellant. (Grounds 2 and 3).
3 Whether the prosecution in this case discharged the onus placed on it by law and if not, whether the Appellant ought to have been discharged and acquitted in the circumstances (Grounds 4, 5 and 6).
The Respondents brief contains two issues for the determination of the appeal thus:-
- Whether the learned trial Judge was right in dismissing the no case submission made by the Appellant;
- Whether, on the evidence led, the trial court was right in its conclusion that the Appellant was guilty of the offence of demanding money with intent to steal as charged.
Appellant’s first issue on the correctness of the lower court’s decision on the no-case submission entered by counsel on Appellant’s behalf has a seemingly insurmountable problem. The ruling in respect of the submission was an interlocutory one having preceded the final decision instantly being appealed against. The ground of appeal on such a decision required the leave of either the lower court or this court before same would be validly filed and entertained by this court. An examination of the record of appeal shows clearly that Appellant had not, prior to filing the ground of appeal wherefrom Appellant’s first issue for determination was distilled obtained the leave of either this court or the lower court. The grounds of appeal as well as the issue distilled from the grounds are incompetent and unarguable. The two are hereby struck out.
This leaves us with Appellants’ 2nd and 3rd issues for determination. The 3rd Issue appears to subsume Appellants’ 2nd issue. Respondent’s issue No 2 is similar to Appellants’ 3rd issue but much more appropriate. It embodies the real issue yearning for determination in the appeal. Respondent’s 2nd issue, therefore, shall provide the basis of determining the appeal.
In arguing the issue in the Appellant’s brief, learned Counsel submits that the lower court had the duty of evaluating the evidence before it and ensuring that the prosecution had proved its case beyond reasonable doubt before returning a verdict of guilt against the accused. Where however doubt exists either as a result of material contradictions or insufficiency of evidence in the prosecutions’ case, the doubt must be resolved in favour of the accused. Counsel relies on the case of Ibeh Vs. State (1997) 1 NWLR (Pt. 484) 632 at 650 and further contends that the trial court’s evaluation of the evidence led must be wholistic.
Learned Appellant Counsel argues that the trial court had failed in its task of properly evaluating the evidence led by the prosecution. The testimonies of Pw I, Pw III and Pw IV on whether or not Appellant had collected the money were materially contradictory. He referred to the testimony of Pw1 at page 23 of the record and that of Pw IV at page 32 in this regard. Furthermore, the testimonies of the Appellant to the effect that the arrest and detention of Pw I was at the instance of Major Onyekweli, Appellant’s superior. Proper evaluation of this evidence would have resulted in the discharge and acquittal of the Appellant. Because of the material contradictions in the evidence of prosecution witnesses the case against the Appellant had not been proved beyond reasonable doubt. The lower court’s decision finding the Appellant guilty had occasioned a miscarriage of justice and should, on the authority of Nwangwu Vs. State (1997) 8 NWLR (Pt. 517) 457; Joshua Vs. Queen (1964) 1 All NLR I and Amadi Vs. State (1993) 3 NWLR (Pt. 314) 644, be set aside.
In further contention, learned Appellant Counsel submits that PwI and Pw III had a purpose to serve. Their evidence should have been corroborated to entitle the trial court rely and convict the Appellant on it. On the authority of Ali Vs. State (1992) 10 SC 87; State Vs. Okolo (1974) 2 SC 73 and Mbenu Vs. State (1988) 3 NWLR (Pt. 84) 615 learned Appellant Counsel argues, Appellant’s conviction that was wrongly anchored on such illegal evidence cannot persist. He urges that the issue be resolved in Appellants favour and the Appeal allowed.
Responding, learned Respondent’s Counsel defends the trial court’s judgment.
The court’s conclusion on Appellant’s guilt of the offence of demanding money with menaces with intent to steal is right. Counsel concedes that by virtue of Section 138 (I) of the Evidence Act the prosecution must prove its case beyond all reasonable doubts. He cites the decision in Bolanle v. State (2005) 1 NCC 342 at 359 in support. Counsel further concedes that the trial court must, before convicting an accused, consider the totality of the evidence before it to determining whether or not the prosecution had discharged its burden. Learned Counsel argues that the trial court had carefully evaluated the evidence led and arrived at the correct decision. The court’s decision cannot be set aside on the basis of the wrong submissions of Appellant’s Counsel. In specific terms, learned respondent’s counsel referred to the testimonies of the prosecution witnesses at pages 55-59, that of the Appellant and the witness who testified for him at pages 59-60 and submits that the courts detailed consideration of these testimonies at pages 62-67 of the record was dutifully done. Before the court convicted the Appellant, it is argued, the court had provided reasons why it rejected the Appellants version in preference to the prosecution story. This disentitles the Appellate Court from interfering. Learned Counsel cited and relied on Egwim v. State (1999) 13 NWLR (Pt.635)338 at 350.
In further argument Respondent’s counsel submits that there is no contradiction in the testimonies of Pw I and Pw IV and that even if such contradiction exists it is neither material nor had same gone to the root of their case to have created any doubt and/or warrant the interference of the Appellate Court. Learned Counsel commends the decisions in Garuba Makayi & Anor v. The State (1968) 1 All NLR and Ogunlana v. State (1995) 5 NWLR (pt.395) 266 at 284.
Concluding, learned Respondent’s Counsel submitted that the prosecution’s case has been strong, true and cogent. The credibility of the witnesses was beyond question and its case very reliable. The trial court’s decision must endure.
Counsel urges that the Appeal be dismissed.
The crucial issue raised by this appeal centres on the lower court’s improper evaluation of evidence with particular emphasis on court’s failure to take into consideration the contradictions in the evidence of PwI and PwIII before determining the guilt of the Appellant. Learned Appellant Counsel has vehemently argued that the contradictions in the testimonies of these vital witnesses should have created doubts in the mind of the court thereby making the conviction of the Appellant unsafe. He further argues that the witnesses are tainted making their testimonies all the more unreliable.
It must be outrightly stated that the evaluation of evidence and ascription of probative value thereto are the primary functions of the trial court that saw, heard and assessed the witnesses. The role of the Appellate Court is very limited where an appeal questions the trial court’s evaluation of the evidence before it and the complaint touches on the credibility of the witnesses. Where however the trial court had failed to employ the advantage of its seeing, hearing and assessing the witnesses in evaluating the evidence led or where an Appellant’s complaint does not revolve on the credibility of witnesses, the Appellate Court is in as much a position as the trial court to evaluate the evidence to ascertain whether or not it can be relied upon to sustain the decision appealed against. Thus where the trial court had duly and correctly drawn the right conclusions from lawfully accepted evidence the Appellate Court cannot interfere and substitute its views for that of the trial court. See Magamma Vs. State (1964) All NLR 05; Bashaya Vs. State (1998) 5 NWLR (Pt. 550) 351 at 370-371 and Woluchem v. Gudi (1981) 5 SC 291.
We must also state another trite principle in the light of the submissions of learned Appellant Counsel that the lower court had arrived at its decision inspite of the abiding contradictions in the testimonies of vital prosecution witnesses. I agree with learned Counsel that if indeed there were material contradictions on vital issues in the testimonies of the prosecution witnesses the lower court should, have, upon a proper evaluation of the evidence, refrained from returning a verdict of guilt on the Appellant. Manifest contradictions or inconsistencies in the prosecution’s case always trigger reasonable doubt in the prosecution’s case which trial courts resolve in favour of the accused, See Onugbogu Vs. State (1974) 9 SC 1; Opayemi Vs. State (1985) 2 NWLR (Pt. 5) 101 Nwankwo Vs. State (1990) 2 NWLR (pt. 134) 627 at 636 and Baruwa Vs. State (1996) NWLR (Pt. 460) 302.
In the instant case, therefore, Appellant would be on a firm terrain if indeed PwI and Pw III had contradicted themselves materially in their testimonies and thereby creating such doubts in the mind of the court and making the convictions of the Appellant unsafe. An added dimension in the argument of Appellant Counsel is that Pw I and Pw III were tainted witnesses, again making their testimonies unreliable. Are they? One thinks not.
Appellant Counsel is right that the offence of demanding with menaces, under section 346 of the Criminal Code Cap 28 LWN 1959 is proved if the prosecution establishes the following three ingredients;
(i) The existence of a demand;
(ii) That the demand was made with a threat;
(iii) That the demand was made with the intent to steal
Where an accused is shown to have made a demand coupled with a threat to another with the intention of unlawfully depriving that other his property, a conviction under Section 346 of the Criminal Code would endure, See Edo Vs. Osakabo Vs. Police (1962) 1 All NLR 92.
In the instant case, the testimonies of the prosecution witnesses, particularly PwI and PWIII at pages 22-35 of the record, clearly show that there was evidence of demand of the sum of N2,000:00k by the Appellant from PwI and PwIII, there is also evidence that PwI and PwIII were locked up between 17-5-77 and 20-5-77 and were only released on “open bail” after they had agreed to pay the sum demanded of them by the Appellant the following day and at a fixed time and place. Parting with the sum would have caused PwI and PwIII wrongful loss. Again, evidence abound that Appellant in keeping with the agreement struck with PwI and PwIII had gone to 2nd accused person’s house and was arrested there in an effort to actualize the agreement over the money arrived at the previous day. The lower court is right, given these uncontroverted facts, to have inferred at page 63-64 of the record thus:
“‘Although the accused claimed that his meeting with the 1st P.W. in the house of the 2nd accused on the 21/5/77 was not planned, one is bound to wonder why they should meet in that house about the same time of the day and the 1st P.W. should walk there with the police team just as the 1st accused himself was arriving in the house only to stop on the verandah for a short while to greet the 2nd accused. I am of the view that that was more than a sheer coincidence. It must also be recalled that the 1st and 2nd P.W, suspects in an alleged crime of stealing of N9.000:00k were taken by the 1st accused custody and handed over to their superior officer without entering into bond. Couldn’t this be just to pressurise the men to pay the money demanded the second day as arranged knowing very well that they were on an informal bail which could be withdrawn at any time if the money was not paid? I am of the view that both 1st P.w, and the accused met in the house of the 2nd accused that day on the basis of the agreement concluded earlier that they should meet him in that house, without fail, with the money demanded from them before they were released on bail. Although the accused told the court that he went there to watch television I have the evidence of the 4th and 5th prosecution witnesses who told the court that Raphael Adewole appeared angered at the manner of the accused, the 2nd accused, the 1st P.w. and they themselves rushed into the room of Adewole that day. It is obvious he was not expecting the accused not to talk of coming in with a crowd”.
The trial court’s evaluation of the evidence led before it conveyed above is beyond reproach. It brings out in a thorough manner the facts established by both sides and explains why the story of one side was being preferred to that of the other. Appellant Counsel has not shown how and why the trial court’s conclusion from these findings is erroneous. This court has no business interfering with such a decision arrived at after the trial court had dutifully discharged its primary duty of evaluating the evidence before it and ascribing proper value to it. See Egwim v. The State (1999) 13 NWLR (Pt. 635) 338.
My examination of the evidence of PwI and PwIII at page 23 and 30 respectively convinces me that these witnesses, contrary to what learned Appellant Counsel submitted, did not contradict themselves to make their testimony unreliable. The trial court is right to have relied on their testimonies. See Alani v. The State (1993) 7 NWLR (Pt. 303) 112 at 122.
Finally, the evidence of these vital witnesses does not require any corroboration as further argued by learned Appellant Counsel. A tainted witness whose evidence must be corroborated is one who either has an interest to serve or is an accomplice. See Mbenu Vs. State (1988) 3 NWLR (Pt. 84) 615 and Ali Vs. State (1972) 10 SC 87 and Ogunlana Vs. The State (1995) 5 NWLR (pt. 395) 266 at 284.
It must be conceded to the learned Respondent’s Counsel that there is nothing in the record that has given out PwI and PwIII as serving any purpose of theirs in the course of their testimonies.
On the whole, evidence abounds in the record of appeal establishing the ingredients of the offence Appellant was convicted for. The evidence remains uncontroverted either because of any contradictions in the testimonies of those who deposed to same or because any of the deponents was either an accomplice or a tainted witness. The trial court had ensured that Appellant was convicted after the prosecution had proved its case beyond all reasonable doubt in compliance with Section 38 (1) of the Evidence Act. Appellant’s 2nd and 3rd issues for determination as subsumed in Respondent’s 2nd issue, having failed, are resolved against him and in favour of the Respondent. The Appeal resultantly lacks merit and is hereby dismissed, The decision of the lower court is thus affirmed.
Other Citations: (2008)LCN/2643(CA)
