Sylvester Utteh Vs. The State (1992)

LawGlobal-Hub Lead Judgment Report

KUTIGI, J.S.C. 

In the High Court of Lagos State holden at Lagos, the appellant and another person were charged with (a) conspiracy to commit felony, to wit stealing, contrary to S.516 of the Criminal Code, (b) demanding with menace with intent to steal, contrary to S. 406 of the same Code and (c) stealing, contrary to S.309 (9) of the Criminal Code Law, Cap. 31 of the Laws of Lagos State. They both pleaded not guilty to all the three counts.

It was common ground that at the time of the alleged offence, the appellant was a Police Officer and the other accused person, an Immigration Officer.

At the trial six witnesses gave evidence for the prosecution. The accused persons did not testify, resting their case on that of the prosecution. At the conclusion of the hearing and after counsel’s addresses and submissions, the learned trial Judge, Oguntade J (as he then was), gave careful consideration to the totality of the evidence adduced and to all the submissions made on behalf of the accused persons, and came to the conclusion “that the prosecution , had, with regard to counts 2 and 3, established the case against both accused persons beyond reasonable doubts.

He therefore found them guilty as charged on those counts and sentenced them to terms of imprisonment. He however, acquitted and discharged them on the first count of conspiracy to commit felony.

Dissatisfied with the decision of the trial court, both accused persons appealed to the Court of Appeal, and in the lead judgment of the Court delivered by Awogu, J.C.A. on the 26th March, 1990, with which Ademola and Kalgo, J.J.C.A. concurred, their appeal was dismissed. The appellant, still dissatisfied with the decision of the Court of Appeal has further appealed to this Court.

The facts of this case, as accepted by the learned trial Judge are contained in, the evidence of PW.2, and they are as follows:-

On or about the 25th day of August, 1984, the two accused persons went to the house of one Dante Noaro, an Italian national, then resident in Lagos, in order to arrest him because his passport was not good. Dante took them to the house of his business associate, PW.2 at No.31 Beecroft Street, Lagos. On getting there PW.2 observed that Dante was in tears and asked him what the matter was. Dante told him, in the presence of the accused persons, that he had been arrested because his passport was not good. 2 PW then asked the accused persons in what way Dante’s passport was not good. At that stage the appellant introduced himself to PW. 2 as a Senior Police Officer from the C.I.D. whose superior officer had sent him on the mission. The other accused told PW.2 that he was an Immigration Officer and further informed PW.2 that when the Immigration came by such bad passports, as that of Dante they always arranged the deportation of the holders. It was in evidence that at that point somebody called PW.2 out of the house and on his return to the room, he was told by Dante, in the presence of the two accused persons, that the accused had agreed to overlook his offence if he (Dante) paid them N60,000.00. When PW.2 wanted to know what the N60,000.00 was for, the appellant got annoyed and stated that he thought that PW.2 was a person who appreciated a favour. Dante then pleaded with 2 PW, to allow the matter to be settled as suggested by the accused persons. He said that he had N15,000.00 in his house at Surulere which he would give the accused persons and pay the balance later. At that stage the second accused person spoke and said that they would be prepared to accept N20,000.00. Dante then drove the accused persons and P.W.2 to his house at Surulere where he gave them the NI5,000.00 leaving a balance of N5,000.00 which it was agreed, would be paid on the 29th August, 1984.

On 29/8/1984, the 2nd accused alone went to the house of PW.2 at No. 31, Beecroft Street to collect the balance of N5,000.00 as previously arranged. He met Dante there who gave him N2,000.00. As the 2nd accused and Dante came out of PW.2’s house, he was arrested by policemen who took him to the NSO Headquarters at Awolowo Road where the sum of N2,000.00 was found on him.

As stated earlier, after the dismissal of the two accused persons’ appeal by the Court of Appeal, it was the appellant alone who has further appealed to this Court on three grounds of appeal.

Arising from the grounds of appeal filed, the appellant has formulated three issues for determination in this appeal and they are as follows:

“1. Whether or not the evidence of PW.2 was sufficient for the conviction of the Appellant in the absence of the evidence of the complainant:

2. In the alternative, whether such conviction based on the hearsay evidence of P.W.2 can be sustained.
3. Whether the role played by P.W.2 did not amount to that of an accomplice.

With regard to the first issue for determination, it was the submission of Chief Shola Rhodes, learned counsel for the appellant, that since the demand of the bribe was not made in the presence of PW.2, his evidence alone relating to the demand was insufficient in law to sustain the conviction of the appellant. He contended that the only evidence that must be adduced to sustain the appellant’s conviction was that of the complainant himself, Dante or that of any other person who was present when the demand was made. The evidence of PW.2 on the issue of demand, he further submitted was hearsay and should not have been admitted by the trial court: In support of his submission, he cited Subramaniam v. Public Prosecutor (1956) 1 WLR. 965 and Pharmacists Board of Nigeria v. Franklin Adegbesote (1986) 5 NWLR, (Pt.44) 707.

In his reply learned counsel for the respondent contended that in the circumstances of this case, failure to call the complainant to testify could not be fatal to the case of the prosecution. He submitted that – “it is where an omission to call a material witness will prevent an issue or issues in a particular case from being resolved one way or the other, or where there are gaps or missing links in the prosecution’s case that the failure will be fatal to the prosecution’s case.” It was his contention that such situation did not arise in this case, citing in support of his submissions Okomoju v. The State (1981) 6-7 SC. 1,18; Udofia v. The State (1981) 11-12 SC.49, 63 and Oladele v. The State (1991) NWLR (Pt.170) 708, 719 E.