Theophillus Onuoha V. The State (1988)
LawGlobal-Hub Lead Judgment Report
B. CRAIG, J.S.C.
This case originated in the High Court of Justice,Ilorin Kwara State. In that court, the Appellant was charged before Gbadeyan, J. for criminal breach of trust contrary to section 315 of the Penal Code and after due trial in which 17 witnesses testified for the prosecution and 3 for the defence the appellant was found guilty and was sentenced to 5 years imprisonment; he was also ordered to forfeit to the Federal Government the sum of N68,959.50 which he had misappropriated.
The Appellant was dissatisfied with that judgment and he appealed to the Court of Appeal Kaduna Division on several grounds of appeal most of them involving facts or mixed law and facts. The Appellant also appealed against the sentence passed on him particularly that of forfeiture.
That appeal was argued at length and in a well considered judgment by Maidama J.C.A. (Akpata and Ogundere JJ.C.A. concurring). The lower Court allowed the appeal in respect of the order of forfeiture and dismissed his appeal on all the other grounds. The appellant has appealed further to this Court on seven grounds of appeal and I should like to observe that these grounds of appeal are substantially the same as were canvassed in the Court below. The grounds of appeal before this court without the particulars are as follows:-
I have chosen to omit the particulars because I find them extremely wordy and argumentative.
“GROUND 1 – ERROR IN LAW:
The Learned Justice of the Court of Appeal holden at Kaduna erred in law in affirming the conviction of the appellant and failed to hold that the “Judgment” delivered by the learned trial Judge in the court below did not accord with the intendment of S. 269 of the Criminal Procedure Code and is thus not valid in law.
GROUND 2:
The Learned Justices of the Court of Appeal erred in law when they failed to hold that the decision of the trial Court is unreasonable, unwarranted and cannot he supported having regard to the evidence at the trial.
GROUND 3 – ERROR IN LAW:
The Learned Justices of the Court of Appeal erred in law when they failed to hold that by believing and accepting the case of the prosecution during his review of the prosecution’s case the Learned trial Judge occasioned a miscarriage of Justice.
GROUND 4 – ERROR IN LAW:
The learned Justices of the Court of Appeal erred in law when they held that Samuel Aina (P.W.10) and Osude Habu (PW.11) at the trial were not accomplices or witnesses who had some personal interest to protect and whose evidence ought to have been rejected at the trial or at best treated with utmost caution…”
GROUND 5 – ERROR IN LAW:
The learned Justice of the Court of Appeal erred in law when they held that exhibit “21” the alleged confessional statement of the appellant was rightly admitted in evidence and acted upon by the learned trial Judge in convicting the appellant.
GROUND 6 – ERROR IN LAW:
The learned trial Judge erred in law when he admitted and accepted exhibits 5 to 18A(1) which were tendered by the prosecution and yet convicted the appellant without making any finding of fact on their variance with the charge.
GROUND 7-
The sentence of five years is excessive.”
In the brief of argument filed by the Appellant he has formulated nine issues for determination and these are as follows:-
“2.1(a) Whether having regard to the entire essence of section 269(1) of the Criminal Procedure Code a judgment is valid in law where the trial Judge fails (directly after recording the addresses of the parties) to sum up the relevant evidence received at the trial for each of the prosecution and the defence, set out issues or points raised for determination having regard to the relevant and material evidence and the offence charged before proceeding to draw the material conclusions and reach the material decisions in the case; especially where the learned trial Judge (before adverting to the case put forward by the defence and any other defences which enured him at the trial) proceeded at page 120 lines 20 to 21 of the record to hold that:
“The prosecution through its witnesses established the following case” and therefore:
(b) Whether the Learned Justices of the Court of Appeal were not in error when they held thus:
“…….there was strict compliance with the provisions of S.269(1) of the C.P.C.”
2.2(c) Whether the learned Justices of the Court of Appeal erred in law by not considering and holding that there were material contradictions: (i) between the evidence of the material prosecution witnesses at the trial especially PWS 10, 11 and 15; and (ii) between PWS 7-11 and PW.15 of the one part and Exhibits 5 to 18A of the other part at the trial; and if so
(d) Whether or not it was mandatory upon the trial Judge to make specific findings of fact on the contradictions and whether failure to do so is a fundamental error and therefore:
(e) Whether the conviction is reasonable and supported by the evidence at the trial;
2.3 (f) Whether or not PW 10 Inspector Samuel Aina and PW 11 Inspector Dauda Habu were accomplices or witnesses who had some personal interests to protect at the trial; and if they were,
(g) Whether the learned Justices of the Court of Appeal below were not in error when they unanimously held inter-alia thus:
“I agree with the learned Judge when he said …. the evidence of PW.10 and P.W.11 in anyway, I did not see as evidence of accomplices or tainted witnesses……..”
2.4(h) Whether Exhibit 21 is a confessional statement; and if so
(i) Whether Exhibit 21 was rightly admitted and acted upon by the learned trial Judge as a direct and unequivocal admission of the offence charged
I must observe that these issues have not been formulated in accordance with the Rules of this Court. For one thing, they are very verbose and unduly repetitive. In my view, a well written brief should be brief and precise. It should also seek to bring out only the essential points which the Appellant wants the Court to consider. A brief which deals extensively with both the relevant and irrelevant matters is of no use to the court. In this respect, I must invite attention to Order 6 rule 5 of the Supreme Court Rules which stipulates that
“The appellant shall file in the Court a written Brief being a succinct statement of his argument in the appeal. The Brief, which may be settled by counsel, shall contain what are, in the appellant’s view, the issues in the appeal………”
I shall now proceed to consider the issues formulated by Counsel. The first and 2nd issues deal with grounds one and three of the grounds of appeal. It would appear that on these two grounds the Appellant is questioning the manner in which the learned trial Judge had reviewed the evidence.
Counsel submits that whilst the Judge was still reviewing the evidence of prosecution witnesses he stated that he found “established” certain evidence which these witnesses had given. According to Counsel, the learned trial Judge ought first to have reviewed the evidence of the prosecution and then that of the defence before proceeding to make a finding. Counsel therefore submitted that the manner in which the learned Judge had treated the whole evidence was contrary to section 269 of the Criminal Procedure Code and that this error in law had caused a miscarriage of justice.
Now, Section 269(1) of the Criminal Procedure Code reads as follows:-
269(1) – Every judgment shall contain the point or points for determination, the decision thereon and the reasons for the decision and shall be dated and signed or sealed by the court in open court at the time of pronouncing it.”
The Appellant’s Counsel goes on to submit that the Judge ought to have formulated these issues point by point in the same way as is done in civil matters. I have considered the submission of Counsel and I have myself gone through the judgment of the trial Court. No doubt, most judgments are written in the manner suggested by Counsel i.e. a review of the case for the prosecution; followed by that of the defence; followed by a statement of the law and concluded by a finding on the facts.
But I must state that writing a judgment is an art in itself and there is more than one way of going about it. It is possible to have as many variations as there are Judges. What is essential is that a Judge should show a clear understanding of the facts in the case, of the issues involved, of the law applicable; and from all these, he should be able to draw the right conclusions and make a correct finding on the evidence before him.
In the instant case, although as I have stated earlier on, 17 witnesses testified for the prosecution and three for the defence, the real point at issue and what the prosecution was expected to prove was whether there had been a criminal breach of trust by the Appellant. See the case of Akwule v. The Queen (1963) NNLR p.105. In short, what the prosecution was expected to prove was
(1) that the Appellant was a Public Servant
(2) that in such capacity he had been entrusted with the money in question
(3) that he had committed a breach of trust in respect of the money i.e. either
(a) he had misappropriated it or
(b) converted it to his own use or
(c) in any way what so ever disposed of it fraudulently and in a manner contrary to the directive given to him.
In this case, it seems to me that the Appellant himself had made the work of the prosecution eminently easy. In his statement, Exhibit 21, he admitted receiving the money as contained in exhibits 5-18. He also admitted handing over the money to the Pay Officers and lastly he admitted that in respect of the balance, he stated as follows:-
“I remember that after payments at each time I was informed by them that there was some balance of money. This was so because the School was yet to decide whether the recruits would be paid exactly what was deducted from their salary or what the Federal Government approved for them. Because they were fed with amount less than N3 by the contractors.”
Later in the said statement, he also had this to say:-
“Since I happen to be boss or the Commander at the time of this incident, I have decided to accept the responsibility over the shortcomings of my subordinates with regard to the missing balance of this money and what I borrowed from Inspector Aina.” He then went on “In order not to shark (sic) responsibilities and involve people, I have accepted to refund the missing balance with the staff who made payments, if I am allowed to do so. I did not share the money with anybody. It is unfortunate that part of this money is not available. All the same, as I have said, I pray the authorities to give me chance and time to return whatever amount that is missing.”
That was a statement from a Police Officer of the rank of Superintendent of Police. All the same, because he had pleaded not guilty, it became the duty of the Court to receive evidence from these 17 witnesses and in doing so the learned trial Judge was right to say that he was satisfied with the evidence which they had given. It is to be noted that when the Appellant himself came to give evidence he admitted that these 17 witnesses could not have told lies against him. When this matter came before the Court of Appeal, that Court held that there was no contravention of section 269 of the C.P.C. and I also share that view.
In my view, the judgment under review shows that the learned trial Judge had adequately set out the facts in the case and he had made correct findings from those facts. In those circumstances, I am satisfied that there was sufficient compliance with the said sub section of the C.P.C. See the case of Mohammadu Bello v. The State (1968) 1 All NLR p.361.
The next four issues relate to grounds 2, 4 and 6 of the grounds of appeal and I must state here that they are all appeal on the facts or mixed law and facts. Ground 2 is a complaint that the trial is unreasonable and cannot be supported having regard to the evidence whilst ground 4 is to the effect that the evidence of the 10th and 11th P.W.s ought to have been rejected or treated with the utmost caution on the ground that they were accomplices.
In so far as these grounds consist of concurring findings of facts, findings which have been confirmed by two lower courts, the attitude of this Court has always been not to interfere with those findings unless there is reason to believe that they are perverse or not supportable by the evidence before the court. See the cases of Sobakin v. The State (1981) 5 SC.75 and 78. Okafor v. Idigo (1984) 6 SC. p.1 and Woluchem v. Gudi (1981) 5 SC.319 at 326.
In the instant case, the facts were that the Appellant was to pay to each Police Recruit the sum of N3 per day as feeding allowance on the order of the Inspector General of Police. He was paid a sum of money which would cover the required number of recruits from January to September, 1983. He then nominated the 10th and 11th prosecution witnesses to make the payment; but in doing so, he told those two men that they should only pay them half of what the Federal Government had directed; so that after payment, these two men had a balance which they brought back to him and it was this balance which according to the prosecution, the appellant had misappropriated. (He claimed to have kept it in a safe in the office of the 7th witness, the balance which now amounts to N68,959.50).
During the hearing, there was no suggestion of any sort that either or both of these witnesses (10th and 11th) were accomplices of the appellant and all that these two witnesses did as found by the trial Judge was that they had carried out his orders. In the portion of the statement to which I have already made reference, the Appellant said that he was keeping back that balance (N68,959.50) so that he could get a further directive from the authorities as to whether he could use it to buy some essential materials for the Police School. Up to the time of his arrest, he did not get that clearance nor could he even produce the said sum of money. I am satisfied that there has been a proper evaluation of the evidence and I do not see the need to interfere with those findings.
In ground 5, the Appellant complained that the statement exhibit 21 which he made was not voluntary and therefore should not have been admitted in evidence.
It seems a bit belated to complain about that at this stage. The issue of whether the statement was made voluntarily or not was tried separately by the learned trial Judge and he found as a fact that the statement was voluntarily made. The court of appeal confirmed that finding of fact and I do not see the need to reverse it.
As previously slated, the Service Sheet (Exhibit 22) of the Appellant shows that he is about 45 years of age and that he is a very senior man in the service; what is more, he wrote out the statement himself after due caution and in my view, he did so voluntarily. I am satisfied that that statement was properly admitted in evidence.
In the last ground of appeal, the Appellant has submitted that the sentence passed on him was a bit excessive. Regrettably, he did not make any statement on this point in his brief and I would therefore not pass any remarks; suffice it to say that for the offence committed, the sentence passed was adequate.
In the result, this appeal fails on all grounds and it is dismissed. The judgment of the lower Court confirming the conviction and sentence of the trial Court is hereby confirmed.
SC.8/1988
