In The Supreme Court of Nigeria
On Friday, the 23rd day of February, 2018
Before Their Lordships
OLABODE RHODES-VIVOURJustice of The Supreme Court of Nigeria
KUMAI BAYANG AKA’AHSJustice of The Supreme Court of Nigeria
JOHN INYANG OKOROJustice of The Supreme Court of Nigeria
AMINA ADAMU AUGIEJustice of The Supreme Court of Nigeria
PAUL ADAMU GALINJEJustice of The Supreme Court of Nigeria
SULEIMAN JIBRIN –Appellant
FEDERAL REPUBLIC OF NIGERIA –Respondent
AMINA ADAMU AUGIE, J.S.C. (Delivering the Leading Judgment): The Appellant, and fourteen other Herdsmen, were arraigned before the Federal High Court, Jos, on a three count Charge of conspiracy, possession of firearms and acts of terrorism, to wit-
Intimidated, put in fear citizens of Kadunu Village and environs in Mangu Local Government Area of Plateau State, while armed with dangerous weapons such as machetes, knives, bows and arrow, slings and axes, pursuant to which you put in danger the residents of these villages causing the death of several person, serious injuries to several others, damage to public and private properties and natural resources and thereby committed an offence contrary to and punishable under Section 15 (2) of the Economic and Financial Crimes Commission Act 2004.
At the trial, the Prosecution called five Witnesses and tendered fifty-seven Exhibits, including dane guns, bows and arrows, etc., and the Statements of the Appellant and other Accused Persons to the Police, as Exhibits A1-A14, wherein they had confessed to committing some of the said offences charged against them.
The Prosecution’s case is that after a communal disturbance on 8/3/2010, the Accused Persons were arrested with assorted weapons by Soldiers, who later handed them over to the Police.
None of the Accused Persons, including Appellant, testified in their defence but they called one witness, Mohammed Hassan, the leader of his community, called Hardo, Head of Fulani, and he testified that he was informed of an attack by Berom people, and when they were surrounded by some people, who started burning their houses, he advised the Accused Persons to escape to a secure place. They met Soldiers while trying to escape and were stopped. The Soldiers shot at them. He said he was shot but survived, and that the Accused Persons were then arrested. He explained that they were herdsmen, and had the guns for the protection of their cattle, and that none of them used the guns.
The learned trial Judge, Allagoa, J., did not believe DW1, and in his Judgment delivered on 16/12/2010, he concluded –
It is not enough for the defence to rely on the evidence of DW1 or self defence because he is an unreliable witness for reasons I had earlier stated. The Prosecution have proffered contrary evidence to the defence as set up by the Accused Persons in their Extra-Judicial Statement, it is now their duty to enter the Witness Box and testify showing circumstances under which they apprehended fear of death to have warranted them to commit the act. They had therefore rested their case on Prosecution evidence. In all the circumstances of the case, I find that the Prosecution has proved the 3 – Count Charge against 15 Accused Persons beyond reasonable doubt and they are therefore jointly, severally and variously convicted as charged.
The Appellant, who was the fifth Accused Person, was sentenced to two years imprisonment without an option of fine in Count 1; twelve months’ imprisonment without option of fine in Count II; and ten year’s imprisonment without option of fine in Count III.
Dissatisfied, the Appellant appealed to the Court of Appeal and in dismissing his Appeal, the Court of Appeal held as follows –
The learned trial Judge assessed the credibility of the witnesses, he accepted and believed their evidence.
This Court cannot interfere with such findings and conclusions without good cause to do so, See Iko V. State (2001) 14 NWLR (Pt.132) 221 and Modupe V. State (1988) 4 NWLR (Pt.87) 130. Having resolved all three issues against the Appellants, the Appeal fails, same is dismissed. The Judgment of the Lower Court is hereby affirmed.
Further aggrieved, the Appellant appealed to this Court with a Notice of Appeal containing the following two Grounds of Appeal:
The learned Justices of the Court of Appeal erred in law when they affirmed the decision of the trial Court that the Charges against the Appellants were proved beyond reasonable doubt.
The learned Justices of the Court of Appeal erred in law when they affirmed the decision of the trial Court rejecting the defence of the Appellants.
The Respondent raised a Notice of Preliminary Objection against the Appeal in its Brief of Argument. It is praying this Court for –
An Order striking out GROUND TWO of the Appellants Grounds of Appeal herein for being incompetent, in that it raised a fresh issue on appeal without the prior leave of either the Lower Court or this Honourable Court.
The Grounds for the Respondent’s Objection are as follows
(a) That Appellants Ground Two is grossly incompetent in that it has raised a fresh issue on appeal that was neither canvassed nor ruled upon by the Lower Court without the leave of this Court.
(b) That a fresh issue raised on appeal without leave is ab initio incompetent and of no legal effect.
It cited Eliochin Nig. Ltd. v. Mbadiwe (1986) 1 NWLR (Pt.14) 14, Ezekude V. Odogwu (2002) 1 NWLR (Pt.784) 366, Uko V. Ekpeyong (2006) ALL FWLR (Pt.324) 1927, Jiddin V. Abina (2000) FWLR (Pt.24.) 1405 on the position of the law that an Appellant would not be allowed to canvass a fresh issue on appeal without the leave of the trial Court or the appellate Court.
It is its contention that the Appellant is challenging the non-evaluation of the testimony of DW1, which was not one of the Grounds of Appeal or nominated as an Issue in the Court below, therefore, it did not form part of the decision from that Court; that he must first seek and obtain leave either of the Lower Court or this Court before he can do so; and that having failed to obtain leave, Ground Two in this Appeal is incompetent and liable to be struck out, citing Okpoko Comm. Bank V. Igwe (2013) 13 NWLR (Pt.1376) 167, Ogba V. Onwuzo (2005) 6 SC (Pt.1) 41.
Yes, a fresh issue can only be raised at the appellate Court with the leave of Court. However, the Respondent’s objection is neither here nor there since the Appellant’s complaints in the two Grounds of Appeal touches on the evaluation of evidence by the trial Court and failure of the Court below to re-evaluate same.
It is on that premise that the Appellant distilled two Issues for Determination from the said Grounds of Appeal, as follows –
1. Whether the learned Justices of the Court of Appeal were not in error when they affirmed the decision of the trial Court that the Prosecution had proved the 3 offences with which the Appellants were charged beyond reasonable doubt.
2. Whether the learned Justices of the Court of Appeal do not have a duty, Ex debito Justiae to evaluate the evidence led by the Appellant fully by way of re-hearing where the trial Court failed to do so.
The Respondent formulated only one Issue for Determination i.e.
Whether the learned Justices of the Court of Appeal were not in error when they affirmed the decision of the trial Court that the Prosecution had proved the 3 offences with which
the Appellant was charged beyond reasonable doubt.
In my view, the Issue for Determination is simply whether the Court of Appeal was right to affirm the decision of the trial Court.
To lay down some ground rules for determining this Appeal, I must point out that it is an elementary principle that this Court does not entertain appeals directly from the trial Court. Its role is limited to seeing whether or not the decision of the Court of Appeal that affirmed the judgment of the trial Court is correct – Ibator V. Barakuro & Ors (2007) 9 NWLR (Pt.1040) 475 SC.
See also Ibori V. Agbi (2004) 6 NWLR (Pt.868) 78 at 143, wherein this Court per Uwaifo, JSC, also observed as follows-
The Supreme Court has no jurisdiction to usurp the function of the Court of Appeal either by hearing an appeal directly from a High Court or by hearing an appeal, which though lying before the Court of Appeal is yet to be decided by that Court because to do so will amount to a violation of the Constitution and will be null and void –
– The Supreme Court has no jurisdiction to hear a Suit or an issue in a Suit fit for the High Court.
In this case, the Appellant focused the arguments in his brief on decrying the trial Court’s findings; for instance, he argued that –
Police investigation and subsequent prosecution were quite shoddy to say the least. If the Police had investigated, and the evidence of DW1 indicates that the Police investigated whose houses were burnt down but sadly this evidence was not presented in Court. If the evidence that it was the Fulani houses that were burnt was presented in Court, then surely the charge of terrorism at least would have been ridiculous since the Appellant cannot be punished by the law when he and his people were victims guarding their homes. Unfortunately, no such evidence was presented before the Court. The Appellant suffered another blow from the learned trial judge, who dismissed his defence outright but condescended to pick up morsels from the evidence to help the Prosecution.
Under his Issue 2, the Appellant further submitted as follows –
The learned trial Judge said the evidence of DW1, the sole defence witness “did not follow a natural flow but nevertheless used some part of the evidence “which corroborates the evidence of PW2 & 3″. It would seem that to the learned trial Judge, the evidence of the defence is only acceptable if it corroborates the evidence of the Prosecution otherwise it would be considered as “not following a natural flow. The learned trial Judge’s mindset in this regard was again captured in his Judgment (p.107 of the Record) when he said-
“The matter is more convincing given how close to the place where they were arrested to burnt houses where people were killed”. This scandalous finding shows that the Court had closed its mind to any defence the Appellant may offer. It was irrelevant to the trial judge that the Appellant was neither charged with murder nor arson before him and he concluded: “From the conduct of the Accused Persons, it can be inferred that they conspired to commit an unlawful purpose and I thereby draw that inference
His only reference to the Court of Appeal is his submission that:
From this testimony [of DW1] and the extra-judicial statement of the Appellant, the defence of self-defence or private defence was clearly the fulcrum of his defence. Yet,
the defence was outrightly rejected by the learned trial Judge and by the learned Justices of the Court of Appeal, who affirmed the learned trial Judge’s decision.
However, it is his contention in this Appeal that the Lower Courts, trial Court and Court of Appeal, were in manifest error when they failed to properly consider his defence. He submitted that where the trial Court fails to, as in this case, the Court below has a duty Ex Debito Justiae to consider the defence; that there is no crime however serious that a defence of an Accused will be considered irrelevant, however, stupid or improbable it may seem; and that:
A Court of Justice, as the name connotes, must do justice both to the society at large and the Accused Persons, however, obnoxious the Court may consider them.
He conceded that the general principle is that where there are concurrent findings of fact by the trial court and the Court below, this Court is not likely to disturb such findings unless the findings are perverse or lead to injustice, but argued that this case falls into one of the exceptions where this Court will intervene, citing Ude V. Chimbo (1998) 12NWLR (Pt.577) 169, Woluchem V. Gudi (1981) 5 SC 291, Kuforiji V. V.Y.B. (1981) 6-7 SC 40, Adegoke V. Adibi (1992) 5 NWLR (Pt.242) 410, Nneji v. Chukwu (1996) 10 NWLR (Pt. 478) 269, Agbomeji V. Bakare (1998) 9 NWLR (Pt.564) 1, Overseas Const. Ltd V. Creek Ent. Ltd. (1985) 3 NWLR (Pt.13) 414 and Atolagbe V. Shorun (1985) 1 NWLR (Pt.2) 375. He urged this Court to hold that –
– There is no evidence to prove the charge beyond reasonable doubt;
– The Lower Court erred in upholding the decision of the trial Court;
– The trial Court relied on hearsay evidence to convict and failed to properly evaluate his evidence before it; and that
– The Court below erred in failing to evaluate it by way of re-hearing.
The Respondent made the usual submissions about the position of the law on the duty of the Prosecution in criminal proceedings. It set out the evidence of each of the five Prosecution Witnesses; the findings of the trial Court on each Count of the said Charge; and its decision thereon, and submitted that the Court of Appeal not only accepted all the findings of fact made by the trial Court, but concluded that it proved the case beyond reasonable doubt. Furthermore, that it is trite that this Court does not make it a practice to disturb concurrent findings of the two Lower Courts, unless they are shown to be perverse, citing Ben V. The State (2006) 16 NWLR (Pt.1006) 582, where this Court held that –
The learned trial Judge and the Justices of the Court of Appeal accepted the version of the evidence led by the Prosecution… There was therefore, concurrent findings of facts by the two Lower Courts. The position of the law is that this Court will not disturb such concurrent findings of the two Lower Courts unless it is shown that such findings are perverse or that there was a substantial error either in the substantive or procedural law, which if uncorrected, will lead to a miscarriage of justice.
It also cited Onwuama V. Ezeokoli (2002) 2 SCNJ 271, Amusa V. State (2003) 1 SCNJ 518, Ubani v. State (2003) 18 NWLR (Pt.851) 247 SC and Akinkugbe V. Ewulum Holdings (2008) 12 NWLR (Pt.1095) 375, and urged this Court to uphold the decision of the Court below and resolve its issue against the Appellant; the Prosecution having proved its case against him.
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As I pointed out earlier, the Issue in this Appeal boils down to whether the Court below should have re-evaluated evidence. The law is that it is only where and when a Court fails to evaluate evidence at all or properly that a Court of Appeal can intervene, and evaluate or re-evaluate such evidence. As a general rule, therefore, when the question of evaluation of evidence does not involve credibility of witnesses but against the non-evaluation or improper evaluation of the evidence, the appellate Court is in as good a position as the trial Court to do its own evaluation see Fatai V. State (2013) 10 NWLR (Pt.1361) 1 at 21 SC.
So, when the question of evaluation of evidence involves credibility of witnesses, an appellate Court cannot do much since it is the trial Court that saw them, heard them and watched their demeanour that is in the vantage position to believe or disbelieve witnesses, and this can never be captured by an appellate Court, which only has the “cold printed record to contend with see Sogunro & Ors V. Yeku & Ors (2017) LPELR-41905(SC).
“Credibility” is the quality of being convincing or believable, and since the trial Court has the liberty and privilege to believe one witness or disbelieve another witness, its findings predicated on the belief or the disbelief of witnesses, is almost sacrosanct, as this can only be questioned on appeal if it is against the drift of the evidence before a trial Court, when considered as a whole – see Adelumola V. The State (1988) 1 NWLR (Pt.73) 683 SC.
In this case, the Court below, in resolving the first issue of whether the Prosecution proved its case against the Appellants, set out the evidence and findings of the trial Court, and stated –
The trial Court had made findings and conclusions after evaluating the evidence before it. It also ascribed evidential value to the evidence produced before it. This Court, being an appellate Court, cannot disturb these findings and conclusions, unless there are good reasons to do so, The Appellants have not been able, also to show or established that the trial Court failed in its duty of evaluating the evidence and ascribing probative value therefor… The credibility or otherwise of witnesses, and the ascription of probative value to the evidence of a witness are entirely within the province of a trial Court. An appellate Court cannot, and should not disturb such exercise unless it was not done, or if done, not properly performed before an appellate Court can perform such duty.. Therefore, in view of what have been said in the foregoing paragraphs of this Judgment, the Prosecution has proved its case beyond reasonable doubt against the Appellants for the offence of conspiracy, illegal possession of firearms and the offence under the EFCC Act.
On the Issue of whether the Prosecution proved its allegation of illegal possession of firearms against the Appellants, it also held-
As earlier pointed out in this Judgment, there were no contradictions in the evidence of the Prosecution witnesses on the number of guns or firearms generally that where recovered from the Appellants. Having admitted being in possession of the guns and or firearms, the offence of illegal possession thereof, have been proved, notwithstanding the evidence of DW1, who testified that the guns were for the protection of their animals. The learned trial Judge assessed the credibility of the witnesses, he accepted and believed their evidence. This Court cannot interfere with such findings and conclusions was a good cause to do so.
– – In view of the foregoing, the Prosecution had proved the allegation of illegal possession of firearms against the Appellants who were so convicted. This issue is so resolved.
– – The Appeal fails, same is dismissed.
Obviously, the question of the Court of Appeal re-evaluating the evidence before the trial Court does not come into the equation. The trial Court believed the Witnesses called by the Prosecution. It found DW1, the only witness called by the defence, unreliable, and it refused to accept or act on his testimony in their defence.
In other words, it assessed the credibility of the witnesses, and accepted and believed the Prosecution witnesses, therefore, the Court below was right not to interfere with its findings and conclusions that had not been shown to be perverse in any way.
……………………. F …………………….
This Court is also not in a position to intervene because as Ademola, CJN, observed in the case of Omisade V. The Queen (1964) NSCC (Vol.3) 170, it is not the function of this Court to retry a criminal case on appeal. He further stated as follows –
If there was evidence before the trial Judge from which he could reasonably have come to the conclusion to which he did, the verdict must stand. The law was aptly put by Lord Tucker in the case of R. v. Aladesuru & Ors 39 C.A.R. 184, which was an appeal from Nigeria.
The learned Lord at p. 185 of the Report said:
It will be observed that the language of the WACA Ordinance follows the English Criminal Act, 1907, under which it has long been established that the appeal is not by way of re-hearing as in civil appeals from a Judge sitting alone, but is a limited appeal, which precludes the Court from reviewing the evidence and making its own valuation.
In this case, the Court below found that that there was evidence before the trial Court from which it could reasonably have come to the conclusion it did that the Appellant was guilty as charged, and so, its decision that the verdict of the trial Court must stand, cannot be faulted; this Court cannot interfere with that finding.
More importantly, the law says that where there is sufficient evidence to support concurrent findings of fact by the trial Court and the Court below, they will not be disturbed unless there is significant error apparent on the Record; that is, the findings are shown to be perverse, or some miscarriage of justice or some violation of the principles of law or procedure is shown thereon – see Ogoala V. The State (1991) 2 NWLR (Pt.175) 506 SC.
In other words, the two Lower Courts are concurrent in their decisions and the onus lies on the Appellant to give very good reasons why this Court should interfere with the findings of fact arrived at by the two Lower Courts, “It is not a matter of course – Muhammad V. State (2017) 13 NWLR (Pt.1583) 386 SC.
In this case, there is sufficient evidence established by the Prosecution to support the concurrent findings of the two Lower Courts and this is one more reason this Court cannot intervene.
The Appeal lacks merit and it is dismissed, and I affirm the judgment of the Court below upholding the trial Court’s decision.
OLABODE RHODES-VIVOUR, J.S.C.: I have had the benefit of reading in draft the leading judgment of my learned brother Augie, JSC. I agree with it, and I am satisfied that concurrent findings of fact by the two Courts below are correct, and this Court is correct to affirm those facts and dismiss the appeal.
KUMAI BAYANG AKA’AHS, J.S.C.: I was privileged to read before now the judgment of my learned brother, Augie JSC. I am in complete agreement with the conclusion that the appeal lacks merit and ought to be dismissed.
The appeal is based on concurrent findings of fact by the two Lower Courts. Where there are concurrent findings of fact by the trial Court and the Court of Appeal, this Court is not likely to disturb such findings unless they are perverse or have led to a miscarriage of justice. See: Mbang v. State (2013) 7 NWLR (Pt.1352) 48; Ajayi v. State (2013) 9 NWLR (Pt.1360) 589; Aliyu v. State (2013) 12 NWLR (Pt.1368) 403.
Where an appellant complains about the non – evaluation or proper evaluation of evidence and does not involve the credibility of witnesses, the appellate Court is in as good a position as the trial Court to evaluate such evidence. See: Fatai v. State (2013) 10 NWLR (Pt.1361) 1. In the instant appeal, credibility of witnesses was involved. The learned trial Judge believed the evidence of the prosecution
……………………. G …………………….
and doubted the evidence of DW1 who said the weapons found with the appellant and others were meant for the protection of their cows. The appellant made a confessional statement. Since the trial Judge assessed the credibility of the witnesses and accepted the evidence called by the prosecution, the Court below was right in not interfering with the findings and conclusions arrived at by the trial Court as same were not shown to be perverse.
It is because of this and the more elaborate reasons contained in the leading judgment of my learned brother, Augie JSC that I found the appeal to be lacking in merit and accordingly dismissed it. Appeal dismissed.
JOHN INYANG OKORO, J.S.C.: I was privileged to have read in draft the judgment of my learned brother, Amina Adamu Augie, JSC just delivered with which I am in agreement that this appeal is devoid of merit and deserves an order of dismissal. His Lordship has, as usual, done justice to the two issues submitted for the determination of this appeal. I adopt both his reasoning and conclusion as mine. I shall however make a few comments in support of the judgment.
The appellant and fourteen others who are herdsmen were arrested and charged to the High Court, Jos. This was sequel to the disturbances and acts of terrorism which engulfed Kadunu village and its environs in Mangu Local Government Area of Plateau State. The Appellant and members of his group were arrested with dangerous weapons including matchetes, knives, bows and arrows, slings and axes including dane guns. The head of the herdsmen who testified told the trial Court that the weapons recovered from them were for self defence and the defence of their cows. The trial Court did not believe them because those weapons instead of protecting cows, were used to kill people.
Before this Court, the learned counsel for the appellant contends that the Court below was wrong to uphold the conviction of the appellant because the prosecution did not prove the charge beyond reasonable doubt.
In Bolanle Abeke v The State (2007) LPELR – 31 (SC) at Page 17, Paragraphs D – F, this Court, per Tobi, JSC explained what the term “proof beyond reasonable doubt” means. He stated as follows:-
“Reasonable doubt is doubt founded on reason which is rational; devoid of sentiment, speculation or parochialism. The doubt should be real and not imaginative. The evidential burden is satisfied if a reasonable man is of the view that from the totality of the evidence before the Court, the accused person committed the offence. The proof is not beyond all shadow of doubt. There could be shadows of doubt here and there but when the pendulum tilts towards and in favour of the fact that the accused person committed the offence, a Court of law is entitled to convict even though there are shadows of doubt here and there.”
See also Miller v Minister of Pensions (1947) 2 All ER 372, Egharevba v. The State (2016) LPELR – 40029 (SC).
Evidence led at the trial Court shows that the appellant and his group were arrested at the scene with dangerous weapons. The damage done to the village of Kadunu and the persons killed and maimed far outweighed their defence of keeping the weapons for self defence. Both the trial Court and the Court below disbelieved them. These are findings of the two Lower Courts. The evidence has been sifted by two Courts below in which there is concurrent findings.
……………………. H …………………….
The law is trite that where there is sufficient evidence to support the concurrent findings by the two Lower Courts, this Court does not disturb such findings unless there is substantial error apparent in the record. Put differently, this Court does not make it a habit of disturbing concurrent findings of two Lower Courts except it is shown to be perverse, or some miscarriage of justice is occasioned, or some material violation of some principle of law or of procedure is shown to have occurred. See Amadi v Nwosu (1992) 6 SCNJ 59, Ezeudu v Obiagwu (1986) 2 NWLR (Pt 21) 208, Oguanuhu & Ors v Chiegboka (2013) 6 NWLR (Pt.1351) 588.
On the whole, the appellant has not shown why this Court should disturb the concurrent findings of the two Lower Courts. Consequently, I find no merit in this appeal. It is also dismissed by me. I affirm the judgment of the Lower Court in the circumstance.
PAUL ADAMU GALINJE, J.S.C.: I have had the privilege of reading in draft the Judgment just delivered by my learned brother AMINA ADAMU AUGIE, JSC and I agree with the reasoning contained therein and the conclusion arrived thereat. The prosecution through its five witnesses and Exhibits A1 – A14 has established its case beyond reasonable doubt. The appellant did nothing to rebut the prosecution’s case. My learned brother has exhaustively resolved all the issues submitted for determination of this appeal in such a way that I have nothing useful to add. I adopt the reasoning and conclusion in the lead judgment and join my brother in dismissing this unmeritorious appeal. Appeal dismissed.
M. M. Nurudeen, Esq. with him, M. M. Junayd, Esq. –For Appellant
Charles Ihua- Maduenyi, Esq. –For Respondens