Alh. Bello Usman & Anor V. The State (2005)

LawGlobal-Hub Lead Judgment Report

BABA ALKALI BA’ABA, J.C.A.

This is an appeal against the judgment of the Katsina State High Court, sitting at Katsina State Judicial Division, Katsina, delivered on the 29th day of October, 2003, by the learned, trial Chief Judge who found the appellants guilty on the three counts charge and sentenced them to various terms of imprisonment. The 1st and 2nd appellants were the 1st and 2nd accused persons arraigned before the Katsina State High Court, Katsina, on a three counts charge as follows:

“Count One:

THAT YOU (1) Alhaji Bello Usman Buwai and (2) Sulaiman Yusuf on or about the 29th day of December, 2000, near Kofar Yandaka in Katsina within the Jurisdiction of this Honourable Court committed culpable homicide not punishable with death by doing an act to wit: causing the death of

(1) Musa Sale,

(2) Salisu Usman

(3) Ibrahim Amadu

(4) Muhammed Mustapha; and

(5) Aminu Ali all of Katsina by unlawfully and recklessly dealing in, mishandling and discharging petroleum product in a place and in a manner which was dangerous to public safety and thereby caused fire outbreak by means of petroleum explosion; with the knowledge that death was the likely consequence of your act, and thereby committed an offence punishable under Section 224 of the Penal Code.

Count Two:

THAT YOU (1) Alhaji Bello Usman Buwai, and (2) Sulaiman Yusuf, on or about the 29th day of December, 2000, near Kofar Yandaka in Katsina, within the jurisdiction of this Honourable Court, committed the offence of causing grievous hurt by dangerous means, by doing an act to wit recklessly discharging/offloading petroleum product in a place, and in a manner which was dangerous to public safety, which thereby led to a fire disaster and thus, causing grievous hurt on the persons named in the appendix to this charge; and thereby, committed an offence punishable under Section 248 of the Penal Code.

Count Three:

THAT YOU (1) Alhaji Bello Usman Buwai, and (2) Sulaiman Yusuf, on or about the 29th day of December, 2000, near Kofar Yandaka in Katsina, within the Jurisdiction of this Honourable Court committed the offence of causing mischief by fire, on a mosque by doing an act to wit; recklessly discharging petroleum product in a place and, in a manner which was dangerous to public safety and by your act caused fire outbreak by means of petroleum explosion leading to the destruction of a mosque; and thereby committed an offence punishable under Section 337 of the Penal Code.”

The facts of the case leading to the arraignment, conviction and sentence of the appellants are as follows: The 1st appellant, Alh. Bello Usman Buwai, was a businessman, who was trading in petroleum products, while the second appellant, Sule Yusuf was a driver with the Nigerian National Petroleum Corporation, which normally supply the 1st appellant with petroleum products.

On 29/12/2000, the 1st appellant was at home at Shararar Pipe at about 8.30a.m, when the 2nd appellant, Suleiman Yusuf, who brought fuel for the 1st appellant from Lagos sent for him. The 2nd appellant pleaded with the 1st appellant to assist to off load the fuel he brought, so that the 2nd appellant will not have any problem with his employers. The 1st appellant then went to a filling station where he intended to off load the fuel, but found that there was diesel oil in the pits. As a result, the 1st appellant informed the 2nd appellant to be patient for two or three days, so that the 1st appellant can get a place to off load the fuel, but the 2nd appellant insisted that the 1st appellant should find a place to off load. It was then that the 1st appellant informed the 2nd appellant that he has a surface tank at the garage of one Alhaji Sada Zare Jibiya. The 1st appellant explained that they use the surface tank to store fuel whenever there is no space in the filling station and transfer it to the filling station whenever there is no fuel in the filling station. According to the 1st appellant after taking the 2nd appellant to the garage to off load the fuel, he left for Suleja before the off loading started.

When the off loading started at the garage after finishing with one compartment while on the second compartment suddenly fire started. The cause of the fire is however not known as there was nobody smoking or doing anything at that time to have caused the fire. The 2nd appellant described the sudden cause of the fire as an act of God which he subsequently reported to his employers and the owner of the vehicle. As a result of the unfortunate fire incident there were loss of lives and properties while some people sustained injuries leading to the trial and conviction of the appellants.

(2) At the end of the case for the prosecution wherein ten witnesses in all were called, the 1st and 2nd appellants after their respective defences, also called two witnesses who testified on their own behalf. After address by the prosecuting counsel and the learned Counsel to the appellants, the 1st and 2nd appellants were convicted on all the three counts charge and sentenced to various terms of imprisonment by the learned trial Chief Judge who at pages 89 – 90 of the printed record, held;

“It was in the judgment of this court that the action of the convicts was reckless. We also saw or heard of the consequent havoc caused by this reckless act particularly by the 1st convict who despite the fact that he has a full filling station, which he apparently was no selling yet he could not resist the temptation to have more petroleum so he got the 2nd convict to discharge the fuel in a surface tank in such an area where public safety was clearly at risk. I will not because of the reasons contained in the plea on behalf of the convict, impose the life sentence. The 1st convict is hereby sentence to seven years in prison, while the 2nd convict is to serve a jail term of 3 years. On the 2nd count, the 1st convict is to serve a jail sentence of 6 months while the 2nd convict is to serve a jail sentence of two months. On the 3rd count which is as grave as the 1st count, the 1st convict is to serve a sentence of 3 years, while the 2nd convict is to serve a sentence of one year. I will spare them payments of fine which money can be used to support their dependents while they serve their sentences.”

Being dissatisfied with the said decision of the lower court, the appellants appealed to this court by their joint notice of appeal dated 29/10/03 containing three grounds of appeal.

(3) Briefs of argument were filed by the appellants and the respondent in accordance with the rules of practice and procedure of this court.

The appellants sought and obtained the leave of this court to amend their joint appellants’ brief of argument which was granted by order of this court dated 20/9/04.

(4) In the Amended Joint Appellants’ brief deemed filed on 27/9/04, the appellants formulated three issues for determination in this appeal as follows:

“(i) Whether, having found as a fact that the acts of the Accused/Appellants were neither illegal nor unlawful nor reckless, the Honourable learned trial Chief Judge was right in convicting the accused persons? (Ground 1 of the Appeal);

(ii) Whether the prosecution has proved its case beyond reasonable doubt? (Grounds 3 and 4 of the Appeal);

(iii) Whether, having regard to the circumstances of this case, the Honourable learned trial Chief Judge was right in not giving the Appellants an option of fine?

(Ground 2 of the Appeal).”

The Respondent’s brief dated 10/5/04 was deemed properly filed and served on 20/9/04 by order of this court. The respondent did not formulate any issue but in effect adopted the three issues formulated by the appellants in its brief by responding to the issues in its submission in its brief of argument.

Having examined the three issues formulated by the learned Senior Counsel for the appellants, I adopt them for determination in this appeal. However, since issue numbers one and two can conveniently be taken together, I intend to determine and resolve issues one and two together to be followed by issue number three.

In the appellants’ brief and his oral submission, Chief Yunus Ustaz Usman, learned Senior Counsel for the appellants submitted that the learned trial Chief Judge having found as a fact that the act of the appellants were neither illegal nor unlawful nor reckless, it was wrong for the Honourable trial Chief Judge to have convicted the appellants on any of the three counts charge. He stated that none of the prosecution witnesses gave evidence as to the cause of the fire outbreak. It is further submitted that from the evidence of D.W.2 and D.W.3, the cause of the fire was an act of God which was not controverted as the two defence witnesses were not cross-examined. He referred to their evidence contained at page 48 line 7 – 11 and page 51 lines 20 – 21 of the printed record. Learned Senior Counsel argued that having regard to the finding of the learned trial Chief Judge at page 81 of the printed record there is no basis for convicting the appellants on any of the three counts charge as the fire outbreak was not shown to be due to the fault of any of the appellants. He concluded his submission on this issue by urging the court to resolve the issue in the negative. On issue number two as to whether the prosecution has proved its case beyond any reasonable doubt tied to ground of appeal number three, learned senior counsel for appellants, stated that in an attempt to prove its three counts charge, the prosecution called ten witnesses to prove the three counts charge against the appellants. He submitted that none of the prosecution witnesses gave any evidence to the effect that the appellants were responsible for causing the fire or that the act of either of the appellants was illegal, unlawful or reckless. Reference was made to the statements of the appellants as 1st and 2nd accused persons, admitted in evidence as Exhibits A, A1, B, B1, C, C1, D, D1, E and E1 contained at pages 91 – 111 of the printed record. It is contended by the learned senior counsel that none of the appellants admitted committing any illegal or unlawful act or that he was reckless in off loading the fuel. Relying on Woolmington vs. D.P.P. (1935) A.C. 462; Ani VS. The State (2003) 11 NWLR (PT.830) 142 AT 161, he further submitted that it was settled law that not only does the burden of proof always rest on the prosecution and does not shift, but it must be proved beyond reasonable doubt. Learned Senior Counsel referred to the finding of the learned trial Chief Judge at page 81 of the printed record and argued that the learned trial Chief Judge having made that finding was wrong to have somersaulted in the same breath and hold a different view.

It is also the submission of the learned Senior Counsel for the appellants that the learned Trial Chief Judge did not consider the evidence of the defence at all and that the failure to consider the evidence in defence alone may nullify the entire conviction and sentence. According to the learned Senior Counsel for the appellants the reasons the learned trial Chief Judge gave for convicting the appellants was not an ingredient of any of the offences charged which amounts to leaving the charges aside and convicting the appellants with an undefended offence contrary to Section 36(8) of the Constitution of the Federal Republic of Nigeria. See Madugu vs. C.O.P. (1973) 3 S.C. 108. In conclusion of his submission on this issue, learned Senior Counsel further contended that the prosecution has not proved its case beyond any reasonable doubt and the court below ought to have discharged and acquitted the appellants.

Learned Counsel for the respondent, Sabiu Iliyasu, Esq, PSC, on issue number one submitted that the learned trial Chief Judge rightly convicted the appellants on the three counts charge on the strength of the evidence before him as the prosecution has proved its case beyond any reasonable doubt. He argued that it is trite in criminal cases that though positive testimony of an eye witness is generally required to establish the guilt of an accused in determining cases such as the instant case, circumstantial evidence is enough to prove the guilt of the accused person. See Nasiru VS. The State (1999) 2 NWLR (Pt.589) 87 – 98. Learned Counsel for the prosecution conceded that in a criminal case the burden of proof lies on the prosecution and such proof is beyond reasonable doubt, referring to Section 138 of the Evidence Act, Cap 112 Laws of the Federation of Nigeria, 1990.

According to the learned counsel for the respondent proof beyond reasonable doubt does not mean proof beyond all shadow of doubt and that the prosecution in this instant appeal has discharged its burden of proof. He referred to the evidence adduced by the prosecution. Learned Counsel for the respondent stated that if petroleum products could be off loaded into at surface tank, the surface tank should be kept in a very secure place not in a midst of residential area which is capable of endangering human life and property. It is further submitted that the appellants acted negligently and or recklessly resulting in causing damage to other persons and could be convicted as charged, citing several cases in support of his submissions, including the case of N.E.P.A. vs. Akpata (1991) 2 NWLR (Pt.175) 536 at 561-562. In conclusion he further submitted that the learned trial Chief Judge was right in relying on the case of Rylands vs. Fletcher (1868) A.C. 352 in his judgment and urged the court to resolve the issue against the appellants.

It is the submission of the learned Counsel for the respondent on issue number two that the prosecution has discharged its duty in proving the case beyond reasonable doubt. He referred to the evidence adduced by prosecution, placing reliance on the case of Nwachukwu VS. State (2002) 2 NWLR (Pt.751) 366 at 387. Referring to pages 71 – 72 and 82 of the printed record, learned Counsel to the respondent contended that consideration was given to the evidence of the defence contrary to the submissions of the learned Senior Counsel for the appellants and urged the court to also resolve issue number two against the appellants.

In its bid to prove the three counts charge against the 1st and 2nd appellants in the instant appeal, the prosecution called a total of witnesses while the 1st and 2nd appellants testified on their on behalf and called two witnesses. After examining the evidence of the witnesses for the prosecution, I find that the evidence of P.W.1, P.W.2, P.W.3, P.W.4, P.W.5, P.W.6 and P.W.7 is substantially the same, the only exception is the evidence of P.W.7, while P.W.9 and P.W.10 are the two I.P.O, who recorded the statements of the 1st and 2nd appellants which were tendered in evidence. The importance of evidence in the instant appeal having regard to the issues formulated for determination and submissions of both counsel cannot be overemphasized for that reason, I will reproduce the relevant portion of the evidence in this judgment.

The evidence of P.W.1, Abashe Atti is at pages 14 -16 of the printed record as follows:

“I am a civil servant with the Katsina State Fire Service since 1988. On 29th December, 2000, at about 6.45a.m. I assumed duty at the Fire Service headquarters here in Katsina. At about 9.00a.m. on that day one Alhaji Bello Buwai came to our office in company of other people. He is now in this Court. He is the 1st accused. He reported that there was a fire outbreak of his petrol at the premises of one Alhaji Sada Zare Jibiya. The place is called Magangarin Gafai at Kofar Yandaka quarters. I gathered my boys and we proceeded to the scene in a vehicle. It was a fire-fighting vehicle, a Mercedes. On reaching the scene, we found the place engulfed in fire. There was a DAF vehicle, a surface tank and some jerry cans and drums. There was only one surface tank and it contained petrol. xxxxxxxx

(Underline mine)

I cannot estimate the number of drums or jerry cans in the place. There were many. At least over ten. We continued fighting the fire and one of my staff suggested that we go back around a school, which would give us easy accessibility to the fire. As we were fighting, the fire the surface tank exploded and petrol and fire was showered on us. I then ran towards the school with my uniform ablaze and I jumped through one of the windows and then the fire went off. When I later came back to the scene I met. one of my colleagues by name of Abdullahi, who when he saw the burns on me he took me to the Federal Medical Centre. My hands, my back and my legs were all burnt by the fire. I still have the scars on my body. xx

I was admitted to the hospital where I was for over one month. There were about ten of us from my office who went to the scene. We also met other people at the scene. There were other colleagues who were injured, but it was only myself and one Nura Abdullahi who were on admission. There were many other people who sustained injuries as a result of the fire.

CROSS-EXAMINATION:- None.”

P.W.7 testified at pages 24 – 25 of the printed record. It reads:

“Moslem affirmed. My names are Isa Lawal. I live at Makera quarters in Katsina metropolis. On 29th December, 2000, I was at home and I asked for my brother and I was informed that he was at school in Gafai. I went to see him so that I could collect money to go to the market. His name is Musa Salisu. I saw my brother and when I called him the tank exploded. I was just engulfed by the fire. When I went to see my brother the fire was going in one direction and then it come to our direction. I just found myself in the hospital. I was taken to the hospital because I received some burns. Earlier on I saw my brother carried away. That was the last I saw him. He died on the day.

CROSS-EXAMINATION:- None.”

The evidence of the appellants who testified as D.W.1 and D.W.2 as well as the evidence of D.W.3 are also in my view relevant and are hereby reproduced below:

D.W.1 testified at pages 46-47 of the printed record as follows:

“Moslem affirmed. My names are Alhaji Bello Usman Buwai. I am 38 years old. I am a businessman. On 29th December, 2000, I was at home at Shararar Pipe at about 8:30 a.m. One Suleman Yusuf sent for me. He is a driver who brought fuel for me from Kano. He is here in court. That, is the 2nd accused person. He pleaded with me to assist to offload the fuel he was carrying so that he would not have any problem with his employer. I went to a filling station where I intended to unload the fuel, but I found that there was diesel oil in the pits. I said since there is no space he should be patient for 2 or 3 days to get a place. He insisted that I should unload the fuel and I told him that I have a surface tank at the garage of one, Alhaji Sada Zare Jibiya. As at the time I left them, he did not start to unload the fuel. We use the surface tank to store fuel which we have no space for the filling station and when there is space we transfer it to the filling station. I left for Suleja. By the time I left the 2nd accused agreed to unload the fuel in the surface tank. I did not know what happened after, I left for Suleja. When I came back I learnt there was a fire at the garage of Alhaji Sada Zare. I went and that the place was razed by fire. I then went to the General Hospital to see those who got burnt as a result of the fire. I then went to the Central Police Station where I reported myself. The D.P.O. assigned an IPO to whom I made a statement.

That is all know.

(Underline mine)

UMAR:- Do you know or heard what caused the fire?

D.W.1:- I was told that the fire started when the fuel was being unload.

CROSS EXAMINATION:- None.”

D.W.2:- “Moslem affirmed, speaks Hausa. My names are Sule Yusuf. I am 45 years old. I live at Ungula Shanu Funtua. I am a driver. On 29th December, 2000 a friend of D.W.1 by name of Alhaji Habibu Majiya bought fuel for D.W.1 and he told me to bring it to Katsina. At Kano, D.W.1 told me that the fuel will be offloaded in one day. That was a Tuesday, and he said by Wednesday, the fuel will be offloaded. D.W.1 here in Katsina said I should exercise patience as the place he intended to offload the fuel is filled up. The next day he took us to the garage of Alhaji Sada Zare and pleaded with us to unload the fuel. The following day he pleaded with us, again to exercise patience saying that the following morning which was a Friday, the consignment will be unloaded. On Friday, he said up till then there was no space at the filling station. I told him that I cannot stay for more than the two days I spent. I said he should get a place to offload the fuel. I then suggest that I should unload at a garage and he said he normally unloads his fuel at filling-station. It was then D.W.1 said since I will not wait again I should unload the fuel at the surface tank which in any case is meant for emergency storage. Then we started unloading and we finished with one compartment and we were on the 2nd when fire started. I do not know what happened. It was an act of God as there was nobody smoking or doing anything to cause fire.

(Underline mine)

CROSS EXAMINATION:-I also answer to the name Suleman.”

D.W.3:- “My names are Alhaji Zayyana Usman. I am 45 years old. I live at Sabuwar Unguwa quarters Katsina. I am a driver. I am an official of the Tankers Drivers Union. I am an intelligence officer of the union. Before 29th December, 2000, the driver D.W.2 came to our office along Yahaya Madaki road NO.6, he said he brought fuel and we should look for the owner for him.

We assigned the diver with an escort to Alhaji Buwai’s house or his filling station along Kano road. On that day, Buwai could not be located up to sunset. The driver told us he had a ticket to take fuel to Port-Harcourt and if the fuel he brought could not be offloaded, he would be in trouble. The following morning, Buwai came to our office and we urged him to offload his fuel. There was no space at his filling station and he pleaded with us that he had a place and he pleaded with us to look on the place before offloading the fuel. I inspected the place and we agreed to offload the fuel, but I told Buwai to transfer the fuel to his filling station as soon as there was space. He promised to do so. I agreed to remain in the place where the fuel will be unloaded. The place is along Jibiya road. While offloading the fuel, one surface tank was filled and as thee second was being filled suddenly fire started. I do not know what caused the fire. Only God knows what caused it. Some people were running helter skelter and the matter was reported to the fire service by someone. I did not get hurt as a saving grace from God.

(Underline mine)

CROSS EXAMINATION:- I have been an intelligence officer of the union for the past eight years. I liase with tile Police and other Government agencies on behalf of the union. It is correct to say that we allowed Buwai to offload the fuel at the surface tank on the understanding that he would evacuate same. We have no authority to allow offloading of fuel at surface tank. The fuel was offloaded at a place belong to one Alhaji, in Jibiya. The place is surrounded by residence and commercial businesses. The fire burnt part of the mosque. There was people who got burnt. We went to the hospital to condole people. I know some people died as a result of the fire.”

The learned trial Judge reviewed the evidence adduced before him and at page 81-82 of the printed record inter alia said;

“I am in full agreement with the learned Counsel on this as for as the prosecution did not say let alone prove that on loading of petroleum in surface was illegal or unlawful. The issue however, is that the charge said the accused beside doing an illegal act, which they did not prove, while discharging the fuel recklessly and mishandling same in such a manner which was dangerous to public safety and in fact caused an outbreak of fire. To me, the two are distinct and’ different. An act which in itself is legal can in certain circumstances result into a culpable act as we have seen in so many negligence cases with the famous English case of Rylands vs. Fletcher, both the citation of which is not immediately at hand, but which is well known to students of students of the law of negligence. The question to ask here is therefore whether the act of unloading the fuel into surface tanks by the accused was recklessly handled and also posed a danger to public safety.

There was no direct evidence to indicate recklessness by the accused persons. One however, will naturally ponder as to the wisdom of or otherwise of storing petroleum products in an area surrounded by residences. No expert evidence was adduced in this respect, but one will be tempted to think that the idea behind building a filling station with underground tanks and pumps, which draw the fuel from the underground tanks would suggest that petroleum products such as the handled by the accused may pose great danger, if not handled with great caution particularly in a residential area. It is common knowledge particularly in this country the mayhem and havoc occasioned by explosions of petroleum products not being properly handled.”

(Underline mine)

It is trite law that the degree of the burden of proof placed on the prosecution in a criminal case or where commission of a crime is alleged is to prove the, accused guilty beyond all ‘”reasonable doubt. Section 138 of the Evidence Act Cap 122, Laws of the Federation of Nigeria, 1990, places such burden beyond reasonable doubt on the prosecution.

From a long line of decided cases, it is settled beyond controversy that to secure a conviction on a charge of murder or an offence of culpable homicide not punishable with death as in the instant appeal, the prosecution must prove (a) that the deceased had died (b) the death of the deceased was caused by the accused and (c) that the act or omission of the accused which caused the death of the deceased was intentional with knowledge or grievous bodily hurt was its probable consequence. See Ogba VS. The State (1992) 2 NWLR (Pt.222) 164; Monday Nwaze vs. The State (1996) 2 NWLR (Pt.428) 11.

The evidence to rely upon to establish a case of murder or an offence of culpable homicide not punishable with death may be, direct or circumstantial. Whether the evidence is direct or circumstantial it must establish the guilt of the accused beyond reasonable doubt. The onus in this connection is on the prosecution as a general rule never shifts and a misdirection on the question of onus of proof is fatal. See Aruna vs. State (1990) 6 NWLR (Pt.153) 125; Ozaki vs. The State (1990) 1 NWLR (Pt.127) 92.

Having carefully examined the evidence of the prosecution witnesses as well as that of defence, I find that none of the prosecution witnesses was an eye witness to the incident of the fire outbreak on the fateful day. The only eye witnesses to the incident were D.W.2 and D.W.3 whose evidence has been fully reproduced in this judgment. It can not be disputed that the evidence of D.W.2 and D.W.3 as rightly submitted in my view by the learned Senior Counsel for the appellants had not been challenged or controverted as a result it remains the only credible account of the incident.

The 1st appellant, going by his evidence also herein reproduced, after taking the 2nd appellant to the garage to offload the fuel, he immediately left for Suleja even before the off loading started.

In addition to the testimony of the 1st and 2nd appellants, their caution statements to the Police Exhibits A, A1, 8 and 81, giving substantially the same account of the incident were admitted in evidence.

Having regard to the finding of the learned trial Chief Judge at page 81 that the act of unloading of petroleum in the surface tank was neither illegal nor unlawful nor reckless, can the learned trial Chief Judge still find the appellants guilty of recklessly mishandling petroleum products when they were, in fact, not charged before the court for that offence? It can not be disputed that there is no credible evidence to support the conviction on the three counts charge from the printed record.

There is no doubt of the fact that no one knows the cause of the fire outbreak that caused the havoc inspite of the great loss caused by the fire.

In Chukwu Vs. the State (1992) 1 NWLR (Pt.217) 255 at 269, Karibi Whyte, J.S.C held that where the voluntary act results in an event which is neither intended nor foreseen, the consequence is an accident.

The word ‘accident’ has a variety of definitions but they usually tend towards something that happens suddenly and unexpectedly. Black’s Law Dictionary at page 14 says of accident inter alia;

“In its most commonly accepted meaning, or in its ordinary or popular sense, the word may be defined as meaning: a fortuitous circumstance, event, or happening without any human agency, or if happening wholly or partly through human agency, an event which under the circumstances is unusual and unexpected by the person to whom it happens… The word may be employed as denoting a calamity, casualty, catastrophe, disaster, and undesirable or unfortunate happening; any unexpected person injury resulting from any unlooked for mishap or occurrence; any unpleasant or unfortunate occurrence, that causes injury, loss, suffering or death…

An event that takes place without one’s foresight or expectation; an under signed, sudden, and unexpected event.”

See Agwu vs. The State (1998) 4 NWLR (Pt.554) 90 at 111.

Section 48 of the Penal Code applicable in Katsina State which reads:

Section 48. “Nothing is an offence which is done by accident or misfortune and without any criminal intention or knowledge in the course of doing a lawful act in a lawful manner by lawful means and with proper care and caution.”

See Festus Amayo vs. The State (2001) 18 NWLR (Pt.745) 251-277.

In the instant appeal, the learned trial Chief Judge had earlier held that the act of the appellants of offloading the fuel in a surface tank was neither illegal nor unlawful and no evidence of recklessness whatsoever was led by the prosecution in the trial of the appellants. It must also be pointed out that the 1st and 2nd appellants were charged for offences under Section 224, 248 and 337 of the Penal Code respectively, which the prosecution failed to prove beyond reasonable doubt as required by law since the onus is on the prosecution and never shifts. As there was no charge against the appellants for discharging the fuel recklessly mishandling same in such a manner which was dangerous to public safety, the learned trial Chief Judge lacks the jurisdiction to convict the appellants for an offence not charged. In any event, the prosecution did not lead any evidence whatsoever as to the manner the appellants offloaded the fuel on the fateful day as none of the prosecution witnesses was at the scene when the fire incident occurred.

It is not sufficient for the Learned trial Chief Judge to merely refer to the evidence of the defence in his judgment when the evidence of the defence is clearly the only credible account of the incident given by the eye witnesses participating in the off loading of the fuel which remains unchallenged and uncontroverted. The court is obliged to give due consideration to a defence either raised by the accused person or arising casually or by the tenor of the evidence placed before the court once that evidence raises a reasonable doubt in thee prosecution’s case. Clearly, from the evidence and exhibits A and A1, the cautioned statement of the 1st appellant, the appellant stated that he left Katsina for Suleja even before the off loading of the fuel commenced and only learnt of the fire incident on his return. Even though, the evidence of the 1st appellant was not challenged, the learned Trial Chief Judge did not take that aspect of the 1st appellant’s evidence into consideration in his judgment. Similarly, the evidence of the 2nd appellant giving a vivid account of the fire incident as well as Exhibits B and B1, the caution statements of the 2nd appellant, which was not also discredited was not given due consideration by the learned trial Chief Judge even though the evidence of the 2nd appellant who testified as D.W.2 was fully supported by the evidence of D.W.3, the only two eye witnesses to the incident.

Where the prosecution fails to investigate the defence or the court fails to examine or consider such defence and it is demonstrable that the failure would lead to a miscarriage of justice, then any order of conviction arising in the circumstance, would, on appeal, be quashed and substituted with an order of discharge and acquittal. See Ebre Vs. The State (2001) 12 NWLR (Pt.728) 617 at 636.

I hold that in the instant appeal, the failure of the learned trial Chief Judge to give due consideration to the evidence of the defence is fatal and has occasioned a miscarriage of justice.

I must point out that the case of Nwachukwu Vs. The State (2002) 2 NWLR (Pt.751) 366 at 387, relied upon by the learned Principal State Counsel for the respondent, is distinguishable from the instant appeal and therefore inapplicable in that in Nwachukwu’s case, the court held that there was evidence of the death of the deceased and there is evidence that the death was the result of the unlawful and intentional act of the accused person and that death can be established by sufficient evidence other than medical evidence showing beyond reasonable doubt that the death resulted from the particular act of the accused. See Adekunle Vs. The State (1972) 3 S.C. 153. In the instant appeal, there is no evidence whatsoever that it was the intentional act of the appellants that caused the fire incident which resulted in the loss of lives and properties as well as causing injuries to some people.

According to the evidence of D.W.2 and D.W.3, the only eye witnesses to the fire incident, the cause of the fire was an Act of God. In the absence of any credible evidence, the cause of the fire outbreak implicating, the appellants for intentionally, or recklessly causing the fire incident, the 1st and 2nd appellants can not be found guilty for the criminal offences as charged and ought not to have been convicted and sentenced by the learned trial Chief Judge. The learned Trial Chief Judge having rightly in my view, held that the act of the appellants were neither illegal nor unlawful nor reckless ought not to have somersaulted and hold an opposite view in the case.

The law is settled that it is the duty of the court to consider the evidence before it and never to proceed to indulge in speculation as to what might have happened. Indeed, a Judge should not substitute his own supposition for the testimony of witnesses given on oath before him. See Fawehinmi Vs. N.B.A. No.1 (1989) 2 NWLR (Pt.105) 494; Adelanwa Vs. The State (1972) 10 S.C.13 at 19; Orhue VS. N.E.P.A (1998) 7 NWLR (Pt. 557) 187-200.

Having regard to the aforesaid, I answer issues number (1) and (ii), jointly considered in the negative in that the learned trial Judge having found as a fact that the act of the appellants were neither illegal nor unlawful nor reckless, the Hon. Trial Chief Judge was not right in convicting the appellants as the prosecution has not proved its case beyond reasonable doubt against the appellants.

Having resolved issues (i) and (ii) in favour of the appellants, issue no. (iii) as to whether having regard to the circumstance of this case, the Hon. Trial Chief Judge was right in not giving the appellants an option of fine, the issue is now irrelevant since the case against the appellants was not even proved as required by law to warrant any type of punishment.

An appellate court, will not ordinarily interfere with such findings of fact made by a trial Judge which are supported by evidence simply because there are some other evidence in contradiction of finding or that if the same is before the appellate court, it would not have come to the same decision as the trial Judge. See Ike vs. Ugboaja (1993) 6 NWLR (Pt.301) 539, Odofin vs. Ayoola (1984) 11 SC 72.

Findings of fact made by the trial court are matters peculiarly within its exclusive jurisdiction and presumed, unless and until an appellant satisfactorily proved that they are wrong since such trial courts saw the witnesses and heard them testify and unless the findings are perverse or unsupported by credibly evidence the court of appeal will not interfere with them. See Adelumola Vs. The State (1998) 1 NWLR (Pt.73) 683.

An appellate court may however interfere with such findings in circumstances such as where the trial court did not make a proper use of the opportunity of seeing and hearing the witnesses at the trial or where it drew wrong conclusions from accepted credible evidence or took an erroneous view of the evidence adduced before it or its findings of fact are perverse in the sense that they did flow from the evidence accepted by it.

In the instance appeal, I have to interfere with the findings and judgment of the learned trial Chief Judge which in my respectful opinion is not supported by the evidence adduced before the court.

In the result, the judgment of the learned trial Chief Judge of Katsina State, delivered on 29/10/2003, convicting and sentencing the 1st and 2nd appellants on the three counts charge is hereby set aside and substituted with an order of discharge and acquittal.

Other Citations: (2005)LCN/1741(CA)