In The Court of Appeal of Nigeria
On Wednesday, the 15th day of March, 2017
Before Their Lordships
ADAMU JAURO Justice of The Court of Appeal of Nigeria
UCHECHUKWU ONYEMENAM Justice of The Court of Appeal of Nigeria
HABEEB ADEWALE OLUMUYIWA ABIRU Justice of The Court of Appeal of Nigeria
SGT. PETER ABBAH –Appellant
FEDERAL REPUBLIC OF NIGERIA –Respondent
UCHECHUKWU ONYEMENAM, J.C.A. (Delivering the Leading Judgment): This appeal is predicated on the decision of the High Court of Plateau State in Charge No: PLD/J23C/2007 – FRN v. SGT. PETER ABBAH; delivered 10th October, 2016; wherein the Appellant was convicted on Counts 1, 2 and 3 but discharged and acquitted on Count 4 of the charge against him.
The Appellant was arraigned before the trial Court on a four count charge of offences contrary to and punishable under Sections 10 (a) (ii);17 (1) and 19 of the Corrupt Practices and Other Related Offences Act, 2000. He was charged as follows:
That you, Sgt. Abbah peter, M, in March, 2007 at Jos, Plateau State, being a public officer did ask for the sum of N50,000.00 (Fifty thousand naira only) for yourself from Mr. Gabriel Onwe on account of something to be afterward done, to wit – closing your investigation in the complaint of Criminal Breach of Trust pending against the said Gabriel Onwe and you thereby committed an offence contrary to and punishable under Section 10(a) (ii) of the Independent Corrupt Practices and other Related offences Act 2000.
That you, Sgt. Abbah peter ‘M’ in March 2007 at Shemshark Hotel Bauchi Road, Jos, Plateau State, being a public officer did corruptly accept the sum of N50,000.00 (Fifty thousand naira only) for yourself from Mr. Gabriel Onwe as an inducement for you to close your investigation in the complaint of criminal Breach of Trust pending against the said Gabriel Onwe and you thereby committed an offence contrary to and punishable under Section 17 (1) of the Independent Corrupt Practices and Other Related Offences Act 2000.
That you, Sgt. Abbah Peter M, in March 2007 at Jos, Plateau State being a Public Officer did use your office as a police officer to confer corrupt advantage upon yourself by collecting the sum of N50,000.00 (Fifty thousand naira only) from Mr. Gabriel Onwe for you to close your investigation in the complaint of criminal Breach of Trust pending against the said Gabriel Onwe and you thereby committed an offence contrary to and punishable under Section 19 of the Independent Corrupt Practices and Other Related Offences Act 2000.
That you, Sgt. Abbah peter, M, sometime in 2006 or thereabout at Abuja being a Public
Officer did use your office as a police officer to confer corrupt advantage upon yourself by collecting the sum of N100,000,00 (one hundred thousand naira only) from Mr. Gabriel Onwe for closing your investigation in the complaint of Criminal Breach of Trust pending against the said Gabriel Onwe and you thereby committed an offence contrary to and punishable under Section 19 of the ICPC Act 2000.Dissatisfied with the decision of the trial Court, the Appellant has filed this appeal. Upon filing of the relevant processes by counsel to both parties in line with the rules of this Court; the appeal was heard on 19th January, 2017; after Mr. E.O. Akhayere the learned counsel for the Appellant who appeared with Mrs. M. O. Alu had applied and was granted leave to withdraw the motion on notice filed on 26th October, 2016. Mr. Akhayere referred to adopted and relied on the Appellant’s brief of argument filed on 18th November, 2016 in urging the Court to allow the appeal. Thereafter, Mr. Kalu J. Ugbo who represented the Respondent adopted and relied on the Respondent’s brief of argument filed on 23rd December, 2016 in praying the Court to dismiss the appeal.In their respective briefs, their counsel distilled the same issues in different words. The issues raised by the parties are reproduced hereunder.
“1. Whether having regards to the evidence adduced by the parties in this case the learned trial Judge was right in his finding that all the ingredients of the offences in counts 1 to 3 have been approved.
2. Whether from the evidence before the Court the learned trial Judge was right in its finding that the Appellant took away the sum of N20,000.00 from the N10,000 given him by PW 2.”
Respondent’s issues are:
“1.Whether the Respondent proved the ingredients of the offences in counts 1, 2 and 3 of the charge against the Appellant.
2. Whether the Respondent was able to adduce evidence that the Appellant took away the sum of N20,000.00 from the N100,000.00 given by the PW 2.”
Being the same issues, I shall adopt the issues raised by the aggrieved party in determining this appeal.
“Whether having regards to the evidence adduced by the parties in this case, the learned trial Judge was right in his finding that all the ingredients of the offences in counts 1 to 3 have been approved.”
The Appellant’s counsel stated the well settled principle of law on who the onus of proof in criminal matters lie. He cited: OFORLETE V. STATE (2000) 12 NWLR (Pt. 681) 415. He went on to summarize the evidence before the trial Court at pages 4 to 9 paragraphs 2.5 to 3.1 of the Appellant’s brief. He then submitted that from the evidence before the trial Court, the Prosecution did not succeed in proving mens rea of the offences. He argued that the offences created by Sections 10, 17 and 19 of the Corrupt Practices and Other Related offences Act, 2000from their wordings are cases of strict liability in which case the Prosecution must first prove mens rea before the actusreus. He urged the Court to so hold citing: ABEKE v. STATE (2007) 9 NWLR (Pt. 1040) 411 SC; MUFUTAU OLANIYI ABIODUN V. FEDERAL REPUBLIC OF NIGERIA (2008) LPELR- 8574 CA; OJO V. F.R.N. (2008) 11 NWLR (PT. 1099).
Mr. Akhayere further submitted that the evidence of the Appellant as to the circumstances resulting in his receiving the money is consistent with his innocence. He noted the evidence that pw2 paid the sum of N80,000.00 which was receipted as
admitted by PW4 and evidenced in Exhibit L. He thereafter submitted that these pieces of evidence have created doubt or left a hole in the evidence of the Prosecution as to whether indeed the Appellant received the money for himself and that being the case the Appellant ought to have been discharged and acquitted. He referred to: ALHAJI BABA GANA ABBAS DAWA & ANOR V. FEDERAL REPUBLIC OF NIGERIA (2011) LPELR- 9217 (CA); OKAFOR V. STATE (2006) 4 NWLR (PT. 969) 1.
The learned counsel finally urged the Court to hold that the prosecution did not establish the guilt of the Appellant beyond reasonable doubt in which case the learned trial Judge was in error to have found the Appellant guilty. He prayed the Court to resolve issue 1 in favour of the Appellant.
In response, Mr. Kalu J. Ugbo for the Respondent referred to Section 135 and 139 of the Evidence Act, 2011 to concede that the onerous burden of proving the guilt of the Appellant beyond reasonable doubt is on the Respondent. He however contended that the onus on the prosecution to prove its case beyond reasonable doubt does not mean proof beyond every iota of doubt. He relied on: LORI V. STATE(1980) 8-11 SC; DIBIE V. STATE (2007) 2 NCC 475.
The learned counsel went ahead to examine the prerequisite ingredients of the offences for which the Appellant was charged and the evidence in proof of the same as adduced by the Respondent in the course of trial at the lower Court through its five witnesses and documents admitted as Exhibits. See pages g – 17 paragraphs 5.0 to 6.9 of the Respondent’s brief. As for the urgency in the discharge of the duty that led to the arrest of the Appellant which the Appellant’s counsel submitted was impossible, Mr. Ugbo submitted that, that argument should be discountenanced as speed is part of the strategy of the commission in the discharge of its function as it concerns “sting operation” He urged the Court to resolve the issue in favour of the Respondent.
RESOLUTION OF ISSUE 1
The standard of proof required of the prosecution in a criminal case is a heavy one. The prosecution must prove its case beyond reasonable doubt. The burden of proof remains on the prosecution throughout and does not shift to the accused person, except in few limited circumstances, such as where an accused raises the defence of
insanity. There is no obligation on the accused to prove his innocence. In order to discharge the onus on it, the prosecution must establish all the ingredients of the offence charged. See: OKOH V. STATE (2014) 8 NWLR (PT 1410) 502 AT 522; SEE ALSO: STATE V. EMINE (1992) 7 NWLR (PT 256) 658; ALOR V. STATE (1997) 4 NWLR (Pt. 501) 511.
The apex Court made the meaning of proof beyond reasonable doubt clear when in MUFUTAU BAKARE V. THE STATE (1987) 3 SC 1 AT 32; (1987) 1 NWLR (PT. 52) 579; (1987) LPELR- 714 (SC) PER OPUTA JSC (PP. 12-13) PARAS G-E); it held:
“Proof beyond reasonable doubt” stems out of a compelling presumption of innocence inherent in our adversary system of criminal justice. To displace this presumption, the evidence of the prosecution must prove beyond reasonable doubt, not beyond the shadow of any doubt, that the person accused is guilty of the offence charged. Absolute certainty is impossible in any human adventure including the administration of justice. Proof beyond reasonable doubt means just what it says. It does not admit of plausible and fanciful possibilities but it does admit of a high degree of cogency, consistent with an
equally high degree of probability. As Denning, J. (as he then was) observed in Miller v. Minister of Pensions (1947 ) 2 ALL E.R. 373: – ” The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong as to leave only a remote possibility in his favour which can be dismissed with the sentence – of course it is possible but not in the least probable the case is proved beyond reasonable doubt.” See also: AIGBADION V. STATE (2000) 7 NWLR (PT 666) AGBO V STATE (2006) 6 NWLR (PT 977) 545; AKINYEMI V. STATE (1999) 6 NWLR (PT. 607) 499; ALONGE V IGP (1959) SCNLR 516; NWAEBONYI V. STATE(1994) 5 NWLR (PT 343) 138.
Thus, it is not the duty of an accused person to prove his innocence as a matter of law as there is always a presumption of innocence in his favour. As has been severally held by the Supreme Court, the standard of proof in a criminal charge is not proof beyond any shadow of doubt but proof beyond reasonable doubt. Accordingly, once the prosecution’s proof drowns the accused person’s presumption of innocence, the Court will be justified to convict. But it is not enough
for the prosecution to suspect, arrest and charge a citizen to Court, there must be cogent, credible and reliable evidence which would pin the person accused with the offence, See: OKOH V. STATE (SUPRA): GOLDEN DIBIE & ORS V. THE STATE (2007) 3 SC (PT 1) 176; (2007) LPELR- 941 (SC).
The relevant evidence before the trial Court that relates to the resolution of this issue is the fact thatÂ a petition by pw2 against the Appellant was referred to pw1 for investigation. PW1, Chukwurah Alexander Eze, a Principal Superintendent Investigator with Independent Corrupt Practices And Other Related Offences Commission (ICPC), identified the petition which was admitted !n evidence and marked Exhibit “A”. He said Exhibit A relates to demand of bribe by the Police of the Area command, Abuja. PW1 added that he assembled a team of investigators comprising Adira Akison and Joseph Daniel. Pw2 informed the investigators the reason for the demand for the bribe by the Appellant and the fact that the Appellant was in Jos waiting for him to bring the money. The pw1 went on this way in his evidence:
“He also came to the Commission with another petition against some officers in the Plateau State C. I. D. asking for the same sum of N50,000.00 in another matter involving his younger brother. Therefore, I applied and obtained the sum of N50,000.00 in N500.00 denomination. As a standard practice, I photocopied the entire pieces of N50,000.00 and recorded the serial numbers of the said amount in the Exhibit Register of the Special Duties Department of ICPC. Thereafter, we embarked on a working visit to Jos with 2 uniformed mobile policemen as back-up for the STING operation. On arrival at Jos, we went straight to the Command Headquarters of the Department of State Service to report our arrival and also to seek assistance should the need arise. At this point, I asked the petitioner to place a call through to the two sets of officers. The man in the State C. l. D. said he was not around Jos and we heard him because the phone’s speaker was on. Thereafter the Petitioner placed another call to the accused person and I heard the accused person said that he was at the Command Headquarters. At this point, I asked one of my team members, Mr. Adira Akison, to accompany the Petitioner to where the accused person was while pretending to be a
colleague of the Petitioner. I did that in order to be able to identify the accused and also to confirm the alleged demand of bribe of N50,000.00. After the meeting, the duo came back to inform me that they have met with the accused person. They also confirmed the said demand by the accused person. Thereafter, we retired to our Hotel room to further strategise, because the Petitioner told me that he had informed the accused person to give them little time to go to the ATM to get the said money. While we were still together, the wife of the petitioner called him to inform him that there were two officers from Maitama, Abuja looking for him. We heard the discussion because the Petitioner left his phone on speaker. The wife of the Petitioner also informed the Petitioner that the officers have gone but left a mobile telephone number which was to be used by the Petitioner to call the accused person whom the petitioner’s wife had said that will leave for Abuja the next day at about 11.30AM. At this point,Â I asked the Petitioner to switch off his phone till the next day because it was late and we agreed to meet in our Hotel room early on 24/03/2007. At about 7.00AM
on 24/03/2007, while we were still discussing with the petitioner, the accused placed a call through to the petitioner and I asked him to put the phone on speaker to enable us listen to the conversation. During the conversation, I heard the accused person direct the petitioner to endeavour to meet him at a Hotel he called Semshak, opposite UNIJOS in room 193 before 9.00AM. At that point, I also heard the accused person direct the Petitioner to come with the said N50,000.00 bribe, his accommodation, the drinks he had taken and the money for the woman who had stayed with him for the night.Having heard this, I asked the petitioner to empty all his personal money that was in his possession. He complied and I brought out the same N50,000,00 in N500 denomination which I had earlier on obtained from the commission’s operational fund. I asked the petitioner to count the money. He counted and confirmed the amount to be N50,000.00. I also asked him to compare them with the photocopies I had made before and the serial numbers I recorded in the Exhibit Register and he confirmed them to be the same before we went to the target venue. When we were about getting into Semshak
Hotel, I asked my teammates to disembark while the Petitioner too was to come a few minutes after I had joined my teammates at the Hotel. I also asked the Petitioner to inform the accused person of his arrival immediately he gets to the gate of the Hotel. When I entered the Hotel premises with my teammates, we all took positions to enable us clearly see the turn of events. After a few minutes, the petitioner entered the premises of the Hotel and I saw him making a call. In a short while, I saw the accused person come out from the Hotel and met with the petitioner. Both of them sat in one mini garden close to the entrance of the Hotel building. After a few minutes of discussion between the accused person and Petitioner, I saw the petitioner bring out the same N50,000.00 which I handed over to him and handed same over to the accused person. After that, they had another brief discussion before the accused person started walking the Petitioner to the main gate of the Hotel. At this point, my teammates and I went to the accused person, introduced ourselves as officers from ICPC, Abuja, while I told him that the N50,000.00 which he had collected without receipt from
the petitioner was bribe money and from our commission and therefore he was under arrest. He resisted arrest until the two uniformed mobile policemen that acted as our back-up came in to assist us in effecting his arrest. Before then, the mobile policemen were in a Bus in the Hotel premises. After the arrest, the accused person with the money still in his possession was taken to Abuja for further questioning. At Abuja at the commission and in my office in the presence of my teammates and the two uniformed mobile policemen, I asked the accused person to bring out the N50,000’00 he collected from the Petitioner. He complied and counted it and confirmed it to be N50,000.00 in N500.00 denomination. Then I brought out the photocopies and the entry in the Exhibit Register. He compared them and confirmed them to be the same, though not without hesitation. He later endorsed the photocopy and also said that he was mindful of the gravity of the offence. I recovered the money from him, counted it with Mr. Adira Akison before putting it in a carton-coloured Envelope, which I labeled “Sgt” Abbah Exhibit for Jos” and dated it. At the top of the envelope, I also wrote
“N50,000.00 (N500.00 denomination) “before I handed same over to the Exhibit keeper for safekeeping. I later recovered the money from the Exhibit keeper and handed same over to the prosecution.”
The envelope containing the N50,000.00 marked money, photocopies of the money and the certified true copy of the entries of the serial numbers of the marked money were tendered and admitted in evidence as Exhibits “B”, “C” and “D” respectively. The first statement of the accused person dated 24/03/2007 was Exhibit “E”.
PW1 concluded his evidence thus: ”
“In the course of our investigation, we discovered that there was a pending matter in which the accused person was the I. P. O. that had to do with business transaction between one Abraham Ikeleji also known as Ibrahim Mohammad & Another and the former Employer of the petitioner. Consequently, we were able to recover from the Petitioner seven (7) receipts of payments made by the petitioner to his erstwhile Employer called Areva Air Services Ltd. located at Wadata, Makurdi, Benue State. The total sum of money paid through the petitioner to his former employer totaled N395,000.00 which the Petitioner remitted to the employer between June and August, 2005. The issue of asking the petitioner to come and give money for the case to be closed would not have arisen. I wrote my report to the Chairman of the Commission.”
The evidence of other prosecution witnesses is in line with the evidence of pw1. Also from the evidence of the Appellant and the submissions of his counsel, it is not in dispute that the Appellant is a person as defined and contemplated by the general definition found in Section 2 of the Corrupt Practices and Other Related Offences Act, 2000. There is equally no contention that the sum of N50,000.00 was given to the Appellant by the PW2; The only disagreement is the purpose of parting and receiving the N50,000.00. For this reason, the Appellant’s counsel’s argument is that since there is no controversy that the pw2 was being investigated by the Appellant at his office in Abuja, and there is likewise evidence, oral and documentary that the PW2 had pleaded with the office of the Appellant to give him time to refund the money for which he was being investigated; and that he had as a matter of fact made some payment through the Appellant in the
past in his effort to refund the said money. He cognately noted the evidence of the Appellant that the N50,000.00 given to him by the pw2 was a further payment in settlement of the various sums of money that the pw2 undertook to pay back through the Appellant’s office. The learned counsel for the Appellant therefore submitted that the only logical conclusion that can be reached in the light of the evidence before the Court is that the pW2 on seeing the Appellant coupled with the fact that the officer at the State C.I.D., Jos he had come to arrest with the officers of the Commission was not on ground decided to use the instrumentality of the Commission to paint the Appellant in a bad light with a view of avoiding the case standing against him in the office of the Appellant. The learned counsel for the Appellant further argued that the failure of the officers of the commission to visit the office of the Appellant to investigate whether the Appellant was actually on official duty in Jos on that faithful date created doubt which should have weighed in the mind of the learned trial Judge positively in favour of the Appellant.
Again it was the contention of Mr.Akhayere for the Appellant that from the evidence before the Court and flowing from his analysis captured in the above paragraph, the Respondent did not succeed in proving the mens rea of the offence. He cited: ABEKE V. STATE (2007) 9 NWLR (PT. 1040) 411; 2007 LPELR-31 (SC).
The latin word mens rea is the state of mind the prosecution must prove, that the accused person had when committing a crime in other to secure his conviction. It is the specific mental state; guilty mind; criminal intent; required: in conjunction with the actual criminal act (actus reus); for an accused person to be convicted of a crime other than strict liability offences. The argument of the learned counsel for the Appellant sums up that; although the Appellant collected N50,000.00 from the pw2; he did not have criminal intent when he collected the same. In other words, his mental state when he collected the N50,000,00 was devoid of guilty mind or intent to commit crime.
However,Â the learned counsel for the Appellant at page 9 paragraph 33 of the Appellant’s brief submitted wrongly on the meaning of strict liability offences. In the case of: ABEKE V. STATE (2007) LPELR- 31 (SC)
relied on by the Appellant’s counsel; at page 21, paras. A – B per KEKERE- EKUN, J.S.C. HELD:
“The offences created by Sections 5 & 6 of the Federal Highways Act are strict liability offences. In other words, the crime does not require proof of mens rea. Proof of the actus reus is sufficient to ground a conviction…….”
Contrary to the submission of the Appellant’s counsel, strict liability offences do not require proof of mens rea. The offences created by Sections 10, 17 and 19 of the Corrupt Practices and Other Related offences Act, 2000 are not strict liability offences and as such for the prosecution to succeed in proving the guilt of the Appellant he must proof both the actus reus and mens rea. The actus reus here is the demand and collection of the N50,000.00 by the Appellant. The mens rea is the guilty mind for the demand and acceptance of the money. Evidence from both sides abound that the Appellant collected the N50,000.00 from pw2; meaning the prosecution established the actus reus of the offence as charged. The dispute is on the proof of the mens rea.
Mr. Ugbo submitted that the Respondent led credible evidence to show that the
Appellant asked and received the sum of N50,000.00 from the Pw2 as gratification to enable the Appellant close the complaint of criminal breach of trust and cheating pending against him. The evidence of the Respondent on this is found in the evidence of PW1 reproduced earlier in this judgment. The defence of the Appellant is that he did not have criminal intent in receiving the money as pw2 gave him the money as part of the installments of the money pw2 undertook to refund to his employer.
The evidence of the Appellant on the face of it appears consistent with his innocence and would indeed tend to create doubt in the mind of any Court as contended by the Appellant’s counsel except for the fact that the Appellant’s conduct and the way and manner he collected the money was completely unprofessional and outside his scope of duty. From the evidence of the Appellant at pages 129 to 131, the pw2 was on police bail on self cognizance to enable him source for money to refund the complainants in a case of breach of trust reported against him at the Appellant’s office at Area command Abuja Metro, Maitama Abuja. The pw2 apparently jumped bail in that he refused to
show up either to make excuses why he would not continue to pay the money or to bring part of the money. He also changed his telephone numbers so that the Appellant who was the IPO in the said matter could no longer reach him nor know his whereabouts for two years until the Appellant ran into him when he came for another official duty in Jos. Then, the same Pw2 who had been avoiding the Appellant saw him at the Plateau State command and went to him instead of dodging him since the Appellant did not see him. The Appellant as a trained IPO who saw an accused person who had been sought for two years; did not arrange to detain him with the help of the office of the Plateau State command rather he entered into a friendship dialogue with him which led to his giving the Pw2 his phone number; going to visit him in his house and subsequently inviting him to his hotel room all in the name of trying to collect money for the complainant in the case for which the pw2 was an accused. All these from the evidence on record happened within 24hours. Eventually the money supposedly collected for and on behalf of a certain complainant who was not called to confirm the evidence
was not receipted for like that of Exhibit L. With all due respect to the submissions of the Appellant’s counsel, the picture I have painted from the Appellant’s evidence in my view is not consistent with the Appellant’s innocence nor does it extricate the Appellant of the mens rea of the offences as charged. Firmly stated, the evidence of the Appellant cannot in any way be said to cast doubt on the guilt of the Appellant.
This is more so for the fact that the Nigerian police is not a debt collector. It is therefore outside the scope of a police officer’s official duty to be running from pillar to post or even to a debtor’s house in order to collect debt on behalf of a complainant. This Court has stated severally, that the Nigerian police has no business helping parties to settle or recover debts. See OGBONNA V. OGBONNA (2014) LPELR – 22308 CA; (2014) 23 WRN 48; ANOGWIE & ORS V. ODOM & ORS. (2016) LPELR – 40214 (CA).Â It is correct that the case against the Pw2 was criminal breach of trust which is within the scope of duty of the police but when as testified by the Appellant the complainant in that case decided to settle with the PW2 by allowing him pay in installments; it ceased to be the duty of the police to go hand in glove with the PW2 to advance further part
payment. This is so because such agreement now becomes civil agreement for which Section 4 of the Police Act, Cap 359 LFN; does not provide for the police to enforce. I am therefore of the view that the unofficial and unprofessional manner in which the Appellant went about in collecting the N50,000.00 from the pW2; goes further to strengthen the evidence of the prosecution that the Appellant had criminal intent in collecting the money to wit; as gratification to close the criminal complaint against the pW2.
Again, the fact that the investigators did not visit the office of the Appellant to inquire if actually he was in Jos for an official duty on that particular date in my view could not cast doubt in the mind of the Court on the guilt of the Appellant. This I say because the fact that the Appellant was on official duty in Jos on the fateful day does not negate the fact that he gave his phone number to a wanted accused person, visited him in his house, invited him to his hotel and collected N50,000.00 from him without issuing him a receipt, all acts which are unconnected to whatever official duty he was in Jos for. These unprofessional acts of the Appellant
only point to one logical fact which is that he collected the money as a bribe.
The Prosecution is held to have proved its case beyond reasonable doubt when it has led strong, cogent, credible and convincing qualitative evidence in proof of the basic ingredients of the offences charged as specified in the legislation allegedly violated; and the proof irresistibly point to the accused’s guilt, though leaving only remote and unattractive possibility in his favour. By the evidence adduced at the trial Court, I agree with the learned trial Judge that the Prosecution firmly established the basic ingredients of the offences charged against the Appellant in counts 1, 2 and 3; leaving no reasonable doubt arising from the proof of guilt of the Appellant. Accordingly, I hold that the Prosecution proved the ingredients of the offences in counts 1, 2 and 3 of the charge against the Appellant. Issue 1 is resolved in favour of the Respondent.
Whether from the evidence before the Court, the learned trial Judge was right in its finding that the Appellant took away the sum of N20,000.00 from the N100,000 given him by pw2.
Mr. Akhayere referred to
the oral evidence of both pw2 and pw4 as it relates to Exhibit L to submit that; the learned trial Judge was wrong to have relied on the oral evidence of PW2 and PW4 to find that the Appellant took away the sum of N20,000.00 from the N100,000.00 given by pw2 for transmission to the complainant in the case of criminal breach of trust against him, when the Appellant by Exhibit L acknowledged receipt of N80,000.00. He relied on: BALIOLÂ LTD V. NAVCON LTD. (2010) VOL. 42 NSCQR 1067; OGUNDELE V. AGIRI (2009) VOL. 40 NSCQR 427.
The learned counsel urged the Court to answer issue 2 in favour of the Appellant and to allow the appeal.
Mr. Ugbo in the Respondent’s brief did not squarely address this issue. He reargued his issue 1 and re-emphasized the evidence of the pW2 and PW4 on how Pw2 gave the PW4 N100,000.00 for transmission through the Appellant to the complainant in the case of criminal breach of trust against him at the police station but that the Appellant collected the N100,000,00 but receipted for N80,000.00 as per Exhibit L.
The evidence of the PW2 and PW4 as to what was given and what was receipted for is clear from the record. However the
Appellant denied that he was given the sum of N100,000.00 by the pw4 rather he insisted that he was only given N80,000.00 by the PW4 for which he receipted via Exhibit L. The learned trial Judge found that the Appellant was actually given N100,000.00 by the pw4 but removed N20,000.00 and receipted for N80,000.00. The facts and circumstances of the case notwithstanding, it is settled by case law that where a document is clear and unambiguous, parole evidence cannot be led to contradict it. In other words, oral evidence cannot be used to state the contents of a document. See: A.G. BENDEL v. U.B.A. LTD. (1986) NWLR (PT. 37) 547; ANYANWU & ORS V. UZOWUAKA & ORS. (2009) 13 NWLR (PT. 1159) 445; OGUNDELE V. AGIRI (2009) VOL. 40 NSCQR 427.
Exhibit L in the instant case speaks for itself, it is clear and unambiguous that the PW4 handed N80,000.00 to the Appellant as money from the PW2 being part of the refund to the complainant of the case for criminal breach of trust against the PW2. The oral evidence of pW2 and pW4 was wrongly admitted by the trial Court to explain Exhibit L. The answer to issue 2 is therefore in the negative.
Issue 2 is resolved in favour of the Appellant.
Let me state emphatically that the resolution of issue 2 does not in any way affect the decision of the trial Court wherein the Appellant was convicted for the offences as charged in counts 1, 2 and 3 of the charge. Accordingly the appeal fails and is hereby dismissed. I affirm the conviction and sentence of the Appellant by the High Court of Plateau State in case No: PLD/J23C/07 delivered on 10th October, 2016.
ADAMU JAURO, J.C.A.: I have had the privilege of reading in draft the judgment just delivered by my learned brother, UCHECHUKWU ONYEMENAM, JCA. I am in complete agreement with the reasoning and conclusion contained therein, to the effect that the appeal is grossly lacking in merit and ought to be dismissed.
I adopt the said judgment as mine in dismissing the appeal. The judgment and conviction made by the trial Court is hereby affirmed.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Uchechukwu Onyemenam, JCA. His Lordship has considered and resolved the
issues in contention in this appeal. I agree with and abide the conclusion reached therein.
The Appellant was arraigned before the lower Court on a four charge contrary to and punishable under Sections 10(a)(ii), 17(1) and 19 of the Corrupt Practices and Other Related Offences Act 2000. The Appellant, being a public officer, was alleged to have asked for himself the sum of N50,000.00 for something to be afterwards done and to have corruptly accepted for himself the said sum of N50,000.00 from one Mr. Gabriel Onwe as an inducement for his closing his investigation into the complaint of criminal breach of trust pending against the said Gabriel Onwe. The Appellant was also alleged, being a public officer, to have used his office as a Police Officer to confer a corrupt advantage on himself by so collecting the said sum of N50,000.00 and by also, on another date, collecting a further sum of N100,000.00 for the same purpose of closing his investigation.
The Appellant pleaded Not Guilty and the matter proceeded to trial and in the course of which the Respondent called five witnesses and tendered exhibits in proof of its case against the Appellant and the Appellant testified in person and called one other witness and also tendered exhibits in proof of his
defence. At the conclusion of the trial and after final addresses by Counsel to the parties, the trial Court entered judgment wherein it found the Appellant guilty on the first three counts on the charge and sentenced him accordingly. This appeal is against the conviction and sentence of the Appellant.
It is axiomatic in our jurisprudence that the burden of proving that any person has committed a crime or wrongful act rests on the person who asserts it and this is more often than not, the prosecution. By virtue of Section 138(1) of the Evidence Act, where the commission of crime by a party is an issue in any proceedings be it civil or criminal, it must be proved beyond reasonable doubt. In discharging the burden, all the essential ingredients of the crime alleged must be proved beyond reasonable doubt. The burden never shifts. Therefore, if in a criminal trial on the whole of the evidence before it, the Court is left in a state of doubt, the prosecution would have failed to discharge the burden of proof which the law lays upon it and the defendant will be entitled to an acquittal.
It must however be pointed out that proof beyond reasonable doubt is
“not proof to the hilt” and is thus not synonymous with proof beyond all iota of doubt and this is because the law will fail to protect the community if it admits fanciful possibilities to deflect the course of justice. Thus, if the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence “of course it is possible, but not in the least probable”, the case will be said to have been proved beyond reasonable doubt, but nothing short will suffice. Reasonable doubt which will justify an acquittal is a doubt based on reason arising from evidence or lack of it. It is a doubt which a reasonable man or woman might entertain. It is not a fanciful doubt. It is not an imaginary doubt. It is a doubt as would cause prudent men to hesitate before acting in matters of importance to themselves – Uzoka vs Federal Republic of Nigeria (2010) 2 NWLR (Pt 1177) 118, Jua vs State (2010) 4 NWLR (Pt 1184) 217, Ike vs State (2010) 5 NWLR (pt 1186) 41 and Gabriel vs State (2010) 6 NWLR (pt 1190) 280.
The complaints of the Appellant in this appeal invite this Court to examine the evaluation of the evidence of the parties carried out by the
lower Court. It is settled that a trial Court has two duties in respect of the evidence led by parties in a trial. The first is to receive into its records all the relevant evidence, and this is called perception. The second is to thereafter weigh the evidence in the context of the surrounding circumstances and this is evaluation. A finding of fact by a trial Court involves, both perception and evaluation – Guardian Newspaper Ltd. vs Ajeh (2011) 10 NWLR (Pt 1256) 574. Nacenn Nigeria Ltd vs Bewac Automative Producers Ltd. (2011) 11 NWLR (Pt 1257) 193, Wachukwu vs Owunwanne (2011) 14 NWLR (pt 1266) 1.
It is the primary responsibility of a trial Court to evaluate the evidence presented by parties before it, ascribe probative value to the evidence and then come up with a decision. Evaluation of evidence entails the assessment of evidence so as to give value and quality to it. It involves a reasoned belief of the evidence of one of the contending parties and disbelief of the other or a reasoned preference of one version to the other. There must be on record how the Court arrived at its conclusion of preferring one piece of evidence to the other – Idakwo vs
Nigerian Army (2004) 2 NWLR (Pt 857) 249, Oyekola vs Ajibade (2004) 17 NWLR (Pt 902) 356, Imoh vs Onanuga (2013) 15 NWLR (Pt 1376) 139 and Al-Mustapha vs State (2013) 17 NWLR (Pt 1383) 350.
In evaluating the evidence led by the parties in this case, the lower Court stated thus:
“The prosecution’s evidence, which I have already recapped, is that upon the demand for N50,000.00 by the accused person from PW2 in order for the accused person to close a case of criminal breach of trust reported against PW2 at the Metro Police Station, Abuja, PW2 petitioned the ICPC whereupon a sting operation with marked notes of N50,000.00 in N500.00 denomination was arranged. The accused person arranged with PW2 to bring the money to his hotel Semshak Hotel, Jos, in the morning of 24/03/07 after his attempt to meet PW2 at his residence in Jos failed. This arrangement was made on phone in the presence of the ICPC Investigators who were listening to the conversation as the phone was on speaker. PW2 met the accused person as Semshak hotel was where he handed over the marked money to him, subsequent upon which the accused person was nabbed by the ICPC Investigators with
the money in his pocket and taken to ICPC Headquarters Abuja. There he was shown photocopies of the notes he obtained from PW2 together with the list of their serial numbers. The photocopies of N50,000.00 in N500 denomination together with the list of their serial numbers are Exhibits C and D before the Court. The accused person endorsed on these exhibits as copies and serial numbers of the N50,000.00 given to him by PW2- his endorsement is dated 24/03/2007.
In his defence, the accused person told the Court that the money given to him by PW2 was meant to be part payment for the amount owed the complainants by PW2 in the case of criminal breach of trust reported against the PW2 wherein PW2 made an undertaking to repay the money by N100,000.00 monthly installment. The accused stated that PW2 has paid through the Police the sum of N80,000.00 before he stopped further payment. It is the case of the accused person that when PW2 saw him at the Plateau State CID Office on 23/03/2007, he offered to give him the N50,000.00 part payment for onward transmission to the complainants in Abuja. According to the accused person, this was the reason why he went to the house of PW2 on the night of 23/03/07 and his failure to meet him led to their subsequent arrangement for PW2 to bring the money to him at Semshak Hotel, Jos.”
The lower Court continued thus:
“The questions that may be asked are:
a. If the N50,000.00 is meant to be part payment in pursuance of the undertaking made by PW2, is Semshak Hotel, Jos as opposed to Metro Police Station Abuja, the appropriate venue for such payment?
b. Has the mandate of the Nigerian Police extended to debt recoveries on behalf of complainants?
c. How about the money for Hotel accommodation, drinks and for the woman he slept with which PW2 and the accused person demanded from him, evidence that was not controverted?
It is settled law that the Nigerian Police is not a debt collector and therefore its officers cannot be running from pillar to post or even to debtors’ houses in order to collect debt on behalf of complainants. In the case Anogwie vs Odom…, the Court of Appeal held that the duties of the Police under Section 4 of the Police Act does not include settlement of civil disputes or the collection of debts or enforcement of civil agreements between parties. I did
not believe the story given by the accused person that he went to the house of PW2 in Jos on the night of 23/03/2007 in order to collect debt owed to another person by PW2 concerning a pending matter at the Metro Police Station, Abuja. The house of PW2 and Semshak Hotel, both located in Jos, are not and can never be an extension of the Metro Police Station, Maitama, Abuja where the complaint was lodged and the undertaking made…”
The lower Court concluded thus:
“The accused person is indisputably a public officer, being a Sergeant in the Nigerian Police Force. From the evidence before the Court, I am satisfied that the accused person:
a. Demanded for a bribe from PW2;
b. Received a bribe from PW2 in the sum of N50,000.00
c. For the purpose of closing a case of criminal breach of trust against PW2 by using his office as the IPO;
d. Has conferred upon himself a corrupt and unfair advantage by receiving the said sum of N50,000.00
All the purported defence put up by the accused person are nothing but fruitless antics and futile efforts of a corrupt Police Officer who was caught in the act to escape from the long arm of justice. I reject all the sham defences put forward by the accused person. It is my judgment that
all the ingredients of the offences charged on counts 1, 2 and 3 have been proved by the prosecution beyond reasonable doubt, in the result therefore, I hereby convict the accused person as charged in these three counts.”
It is obvious from the above excerpts of the judgment that the lower Court did evaluate the evidence led by the parties. The law is that where the records of proceedings show that a trial Court assessed the evidence produced before it and accorded probative value to them and placed them side by side on an imaginary weighing scale before coming to a conclusion and making a finding of fact on side of the evidence that tilts the scale, such finding must be accorded due weight so long as it is not reasonable and not perverse. In other words, an appellate Court will not interfere with the evaluation of evidence carried out by a trial Court and will not substitute its own views for that of the trial Court unless the conclusion reached from the facts is perverse- Ajibulu vs Ajayi (2014) 2 NWLR (Pt. 1392) 483, Ikumonihan vs. State (2014) 2 NWLR (Pt. 1392) 564.
A decision of a Court is said to be perverse (a) when it runs counter to the evidence and pleadings; or (b) where it it has been shown that the trial Court took account of matters which it ought not to have taken into account or shut its eyes to the obvious; or (c) when such a decision has occasioned a miscarriage of justice; or (d) when the circumstance of the finding of facts in the decision are most unreasonable – Onu v. Idu(2006) 12 NWLR (Pt. 995) 657, Momoh Vs Umoru (2011) 15 NWLR (Pt 1270) 217.
The Appellant has urged this Court to find that the lower Court did not properly evaluate the evidence of the parties and to carry out a re-evaluation of the evidence. Now, it is trite law that the power of re-evaluation of evidence is not one that an appellate Court exercises just because an appellant has asked for it. The privilege of having an appellate Court exercise the power must be earned by an appellant showing a compelling and cogent reason for its exercise. An appellate Court will not embark on a re-evaluation of the evidence led by the parties in the trial Court simply because an appellant made an allegation of improper evaluation of evidence. An appellate Court will only do so where an appellant visibly demonstrates the perversity of the findings made by the lower Court by showing that the lower
Court (i) made improper use of the opportunity it had of seeing and hearing the witnesses; or (ii) did not appraise the evidence and ascribe probative value to it; or (iii) drew wrong conclusions from proved or accepted facts leading to a miscarriage of justice. Where an appellant fails to do so, an appellate Court has no business re-evaluating the evidence and interfering with the findings of the lower Court – Njoku vs Eme (1973) 5 SC 293 at 306, Kale vs Coker (1982) 12 SCÂ 252 at 371, Oke vs Mimiko (No 2) (2014) 1 NWLR (Pt 1338) 332 at 397-398, Gundiri Vs Nyako (2014) 2 NWLR (Pt 1391) 211, Busari Vs State (2015) 5 NWLR (Pt 1452) 343 at 373.
Reading through the entire arguments of the Counsel to the Appellant in his brief of arguments, all the Counsel did was to rehash the arguments presented by the Appellant in the lower Court. Counsel did not condescend on the findings of fact made by the lower Court and show why they should be upturned by this Court. It is settled law that it is not enough for an appellant to go before an appellate Court to repeat the case he presented before the lower Court with the hope that the appellate Court will come to
different decision; he must attack the findings of fact made by the trial Court from the evidence led – Uor vs Loko(1988) 2 NWLR (Pt. 77) 430 at 441, Onyejekwe Vs Onyejekwe (1999) 3 NWLR (Pt 596) 482 at 500-501, Jov Vs Dom(1999) 9 NWLR (Pt 620) 538 at 551, Awudu Vs Daniel (2005) 2 NWLR (pt 909) 199 at 231, Ojeleye Vs The Registered Trustees of Ona Iwa Mimo Cherubim & Seraphim Church of Nigeria (2008) 15 NWLR (Pt 1111) 520 at 543.
Counsel to the Appellant did not give this Court any reason to interfere with the findings and the decision of the lower Court. It is on this basis, and the fuller exposition of the law in the lead judgment, that I agree that there is no merit in the appeal. I too dismiss the appeal and hereby affirm the judgment of the High Court of Plateau State in Suit No PLD/J23C/2007 delivered by Honorable Justice M. I. Sirajo on the 10th of October, 2016 and the sentences passed thereon on the Appellant.
E.O. AKHAYERE, with him, M.O. ALU –For Appellant
KALU, J. UGBO –For Respondent