Apav Agbanyi V. The State (1994)
LawGlobal-Hub Lead Judgment Report
ADRIAN CHUKWUEMEKA ORAH, J.C.A.
On 26th November, 1992, the appellant was convicted in the Katsina-Ala High Court of Benue State by E. Ekpo, J. in charge No. KHC/17C/89 for an offence of mischief by fire contrary to Section 337 of the Penal Code.
The charge read as follows:-
“That you Apav Agbanyi, on or about the 21st day of March, 1989, at Mbagena Kpav, Shitile committed mischief by fire to wit by setting ablaze two thatched houses belonging to one Suega Ande intending to cause the destruction of the buildings ordinarily used for human dwelling and custody of property and thereby committed an offence punishable under Section 337 of the Penal Code”.
A.N. Awulu Esq. State Counsel, Ministry of Justice, Katsina-Ala brought an application dated the 29th day of August, 1989 for leave to prefer a charge in the High Court under Section 185(B) of the Criminal Procedure Code. It is stated in the application, that no proceedings under Chapter XVII of the Criminal Procedure Code have been taken, it is in the interest of justice to have the accused person tried summarily and that evidence contained in the proofs of evidence shall be available at the trial are true to his knowledge, information and belief.
Ikongbe, J, granted the applicant leave under Section 185(B) of the Criminal Procedure Code to prefer the charge and fixed the case for hearing on the 13th day of September, 1989. On record, the case came up for hearing two times on 22nd January, 1992, and on 18th February, 1992, was adjourned until 6th April, 1992, when P.W.1 testified.
The facts of this case which are quite straight-forward are as follows:-.
P.W.1 Suega Ande, a farmer from Mbagena Shitile alleged, that the accused person Apav Agbanyi from Mbagena Kpav, on 21st March, 1989 set ablaze his two dwelling houses at Mbagena Shitile. The two houses were burnt down. The accused person denied setting the two houses ablaze. He pleaded Alibi saying, that he was working behind his house with Agbidye Aba and two named others, when P.W.1 came to his house and called him by name – “KPAV, KPAV – You are here but my house is burning”. The accused said, that P.W.1 levelled the allegation against him because of a long standing dispute.
At the trial and hearing of the case, the prosecution called three witnesses. The prosecution witnesses are P.W.1 Suega Ande the owner of the two houses set ablazed, P.W.2. Teghtegh Agum an uncle of P.W1.1 both of whom are of the same grand father and P.W.3 Police Corporal Francis Tysor Investigating Police Officer (I.P.O.), who was at the time attached to the Police Post Abiji.
The accused person Apav Agbanyi who testified as D.W.1. pleaded alibi saying, that he was not at the scene at the time and place. D.W.1 called one witness D.W.2 Agbidye Aba his cousin who testified in his defence. At the end of the trial, the learned trial Judge after a consideration of the evidence adduced, held,-
“The defence offered is simply not there. It is lacking in substance and has not discredited nor contradicted the evidence of the prosecution“. (Italics mine).
Continuing, the learned trial Judge said:
“I am, therefore, convinced beyond reasonable doubts that the charge against the accused has been proved. Accordingly, the accused is hereby convicted as charged for the offence of mischief by fire to the two huts belonging to P.W.1. The offence is punishable under Section 337 of the Penal Code”
After the allocutus, the convict persisted in his innocence and pleaded with the Court to reduce his sentence on the grounds, that the allegation was leveled against him because of a long standing dispute between him and P.W.1. The convict pleaded for leniency saying, that he has a wife and two children whom he takes care of.
Dissatisfied with the said judgment, the accused person gave notice of appeal dated 18th December, 1992 with four grounds of appeal (see pp.25-26 of the Records). The accused person shall hereinafter be referred to as the appellant and the State as the Respondent.
The appellant’s four grounds of appeal with their particulars are as follows:-
“1. The trial learned Judge misdirected himself on the onus of proof when he held that the Alibi of the Defence was “lacking in substance, and has not discredited nor contradicted the evidence of the prosecution”, and this occasioned a miscarriage of justice.
Particulars of Error
(a) In criminal cases the onus remains on the prosecution to prove the guilt of the accused.
(b) The only onus on the accused person is the evidential burden.
(c) The misapprehension on the onus therefore affected the Judge’s credibility of the Defence witnesses.
- The learned trial Judge erred in law when he convicted the accused person thus rejecting his defence of alibi pleaded and established on the evidence.
Particulars of Error
(a) There was material contradiction in the evidence of the prosecution witnesses on the date of the alleged offence.
(b) The alibi raised by the accused person was not investigated or rebutted by the prosecution evidence. ‘
(c) The prosecution did not prove date and time of the offence.
- The sentence was excessive in view of the circumstances especially the insistence of the accused/convict by the existing animosity between P.W.1 and himself, and the fact that there was no record of previous conviction against the accused.
- The Judgment is unwarranted, unreasonable and cannot be supported having regard to the evidence adduced.”
In my view, the four grounds of appeal on record are precise and cogent to this appeal. The particulars of grounds 1 and 2 are herein-above reproduced. The part of the decision and the reliefs sought are not stated though they are apparent from the grounds of appeal.
Briefs of arguments were duly filed and exchanged. Based on the said grounds of appeal, the following two (2) issues for determination are formulated on behalf of the appellants –
“1. Whether the learned trial Judge properly considered the defence of Alibi raised by the appellant and properly apprehended the onus and standard of proof thereof.
OR
Whether the learned trial Judge misdirected himself in the assessment of evidence offered as ALIBI and wrongly placed the burden of proof and standard of proof of the said defence of Alibi on the appellant.
- Whether the sentence was excessive in the circumstances.
The respondent raised three (3) issues which he called Questions for determination in his brief namely:-
“A. Whether or not the trial Judge was justified in finding that it was the appellant who set fire and burnt down the two thatched houses of P.W.1 Suega Ande. (Vide grounds 2 and 4)
B. Whether the defence of Alibi raised by the appellant at the trial was proved amidst the uncontradicted and unchallenged evidence by the prosecution. (Vide ground 1)
C. Was the sentence passed on the appellant by the lower court excessive (Vide ground 3).”
All the issues formulated by both the appellant and the respondents are based on and related to the grounds of appeal filed. The respondent’s issue ‘C is the same as the appellant’s issue two (2). I must however, here observe that the two issues for determination raised by the appellant will suffice in the determination of this appeal. The appellant’s two issues for determination are precise, cogent and encompass all the relevant points raised in the grounds of appeal and include the respondent’s issues for determination. Issue No. 1 covers grounds 1, 2 and 4, while Issue No.2 covers ground 3 of the grounds of appeal.
Upon argument of the appellant before us, T.A. Kune learned counsel for the appellant adopted appellant’s brief of argument filed in court on 9th July, 1993. He urged the court to allow the appeal, set aside the conviction and sentence and acquit the appellant.
In reply, Mr. S. Haruna, learned counsel of the respondent adopted respondent’s brief filed in court on 14th October, 1993 in its entirety. He urged the court to dismiss the appeal as lacking in merit and affirm the decision of the Benue State High Court.
Both counsel for the parties had nothing more to add in oral argument by way of emphasis to elucidate arguments in their respective briefs. On issue No. 1,-
Whether the learned trial Judge properly considered the defence of alibi raised by the appellant and properly apprehended the onus and standard of proof thereof,
or
Whether, the learned trial judge misdirected himself in the assessment of the evidence offered as alibi and wrongly placed the burden of proof and standard of proof of the said defence of alibi on the appellant,
it is submitted in appellant’s brief that in criminal cases, the onus or burden of proof remains throughout on the prosecution to prove the guilt of the accused person by virtue of s.137(1) of the Evidence Act. If there is any reasonable doubt of the guilt of the appellant from the evidence adduced by the prosecution, the court must discharge the appellant: (See Woolmington v. D.P.P.) (1935) AC 462 at 481.
It is further submitted that the only onus on the accused person who raised an alibi in his defence is the evidential burden. The appellant in Exht. ‘A’ in his statement to the police, has put the prosecution on notice of his defence at the hearing. In Exht. ‘A’ the appellant gave particulars of his alibi to the effect, that he was not at the scene and time of the crime on the said date (see Ozaki v. The State (1990) 1 NWLR (Pt. 124) 99).
It is submitted, that the alibi raised by the appellant was not investigated or rebutted by the prosecution. It was therefore the duty of the prosecution, especially the I.P.O. to investigate the truth or otherwise of the alibi especially, in this case where the appellant gave particulars of his whereabouts and the name(s) of person(s) with whom he was throughout the day up to the time when P.W.1 came and accused him of having set his two thatched houses on fire. (See Obide v. The State) (1970) NSCC 31 cited in support.
It is further submitted that the misapprehension of the onus on the appellant on a defence of alibi affected the Judge’s credibility of the defence witnesses whereby, the trial Judge elevated the evidential burden on the appellant, when he held that, – “the defence is lacking in substance and has not discredited nor contradicted the evidence of the prosecution”, and went ahead and convicted the appellant.
It is submitted, that the failure to investigate the alibi set up by the appellant by the I.P.O. who visited the scene of crime should have raised reasonable doubts in the mind of the trial Judge, there being no burden of proof imposed on the appellant to establish an issue e.g. alibi as a defence to a charge. Therefore, where as in this case, the appellant puts forward an alibi, the onus is not on the defence but on the prosecution to disprove it. See Yanor v. The State (1965) NMLR 337; Ikono v. State (1973) 5 S.C. 231 at 256; 1 All NLR 598 cited in support. The failure to investigate the alibi put forward by the appellant, could have provided the measure to test the credibility of P.W.1 and P.W.2 against that of D.W.1 and D.W.2 occasioned a miscarriage of justice. It is submitted, that this was the only litmus test that would have determined the cogency and the proper weight to attach to the evidence of each witness. It is immaterial that P.W.1 and P.W.2 knew the appellant before the date of the offence and purportedly fixed him at the scene of crime. The learned trial Judge therefore, erred in his assessment and rejection of the appellant’s plea of alibi and this error occasioned a miscarriage of justice see Akpan Ikono & Anor. v. The State (1973) 1 All NLR (Pt. 1) 598 at (1973) 5 SC 231.
It is further submitted, that there were material contradictions in the evidence of the prosecution witnesses on the date of the offence. P.W.2 did not even know the year of the offence and unlike P.W.1, did not see the commission of the offence. P.W.1 and P.W.2 testified on 6th April, 1992. From the evidence of P.W.1, ‘that the offence took place 5 years ago’, it could not have taken place on 21st day of March, 1989 as alleged or at all, because from 21st March, 1989 to 6th April, 1992, when P.W.1 and P.W.2 testified, it was only 3 years and 15 days. The date of the offence was not established and the learned trial Judge was in error, when he held, that the D.W.1 (appellant) himself under cross-examination confirmed that the incident took place on 21st March; 1989.
It is therefore submitted, that where the date of the offence is not proven with certainty, the issue of P. W.1 fixing the appellant at the scene of crime did not even arise, so also the purported confirmation by the appellant. It is submitted, that while the trial Judge said, he disbelieved the appellant was outside the scene of crime and held that the incident occurred in the early morning of 21st march, 1989, before 2.00 p.m. when P.W.1 came complaining at D.W.1’s compound, the time of the offence was not proven by any of the prosecution witnesses. None of the prosecution witnesses gave evidence as to the precise time of the incident so as to test their credibility against that of D.W.1 and D.W.2.
Again, it is submitted that P.W.2 knew of the offence because P.W.1 was shouting the name of the appellant. This evidence is circumstantial and to ground a conviction, it must be unequivocal, positive and point irresistibly to the guilt of the appellant see Lori v. The State (1980) 8-11 SC 81 at p. 86 cited in support.
In reply to issue No. 1, it is submitted in Respondent’s brief, that, there are two eye witnesses P.W.I and P.W.2 who saw the appellant set ablaze and burnt down the two thatched houses of P.W.1 on 21st March, 1989 at Mbagena Shitile. That P.W.1 and P.W.2 could not remember the exact date of the offence does not in anyway discredit the case for the prosecution as the date is not part of the essential ingredient of the offence of mischief by fire contrary to Section 337 of the Criminal Code required to be proved by the prosecution.
It is submitted, that the appellant himself was defending an offence alleged to have been committed on 21/3/89 and under cross-examination, admitted, that the incident took place on 21st March, 1989. (See p.12 lines 8-12 and p.14 lines 3-14). The appellant was not misled in his defence and his conviction on the credible evidence led by the prosecution had not occasioned a miscarriage of justice.
The appellant having been fixed at the scene of crime on the date of the incident which the trial Judge believed, his plea of alibi has been physically demolished and destroyed, more so when he has not supplied the particulars to his alibi (See The State v. Ezekiel Adekunle) (1989) 5 NWLR (Pt. 123) 505 (1989) 12 SCNJ 184 at 190 para 40; Patrick Njovens & Ors v. The State (1973) 1 NMLR 331 (1973) 1 All NLR (Pt. 1) 441 in support.
The prosecution has therefore, proved its case beyond reasonable doubt as required by Section 137(1) of the Evidence Act and this must be so, since the appellant in Exhibit ‘A’ – his extra-judicial statement to the police, merely stated, that he was in his father’s compound on the date of the incident i.e. on 21/3/89 and gave names of D.W.2 and two others without particulars, whereas in his oral testimony in court, the appellant testified, that himself, D.W.2 Ashika Aba and Nongon Tule went out to cut ~grass and admitted in cross-examination, that portions of his oral testimony in court was not in Exht A. It is submitted, that where the accused’s previous statement to the police is inconsistent with his oral testimony in court the oral evidence in court should be treated as unreliable and his previous statement not evidence upon which the court can act. See Francis Asanya v. The State (1991) 3 NWLR (Pt. 180) 422 (1991) 4 SCNJ 1 at pp. 15-16 and paras 5 – 10.
It is finally submitted in respondent’s brief, that the issue in this case, turned on credibility of witnesses both for the prosecution and the defence. The learned trial judge alone had the singular opportunity of watching the demeanour of all the witnesses in this case. It has not been shown that the learned trial Judge was perverse in his conclusion and to that extent, the Court of Appeal will hesitate to overtull1 the former’s decision on the point. See Sunday Udoji v. The State (1984) 12 S.C. 139 at p.176; Afolayan v. Ogunrinde (1986) 3 NWLR (Pt.26) 29 at pp. 34 – 35; Okafor v. The State (1991) SCNJ 103 page 25 – 30; Okafor v. State (1990) 1 NWLR (Pt.128) 614. The respondent urged the court to affirm the judgment of the court below.
I have very carefully read through and summarized the arguments of learned counsel both for the appellant and the respondent in their briefs. A summary of the points argued in the appellant’s brief border on the following:-
(i) The onus of proof upon the prosecution to prove its case beyond reasonable doubt generally as a matter of fundamental principle of law ha, not been discharged.
(ii) Where the only defence raised as a defence to an offence is one of alibi, the evidential burden placed on the accused is to adduce evidence in support of his alibi. No burden is cast upon the accused to prove his innocence, to discredit or contradict the prosecution’s evidence.
(iii) The need to investigate the alibi raised by the appellant where he has supplied sufficient particulars and the consequences in default of investigation. The alibi was not investigated and is therefore fatal to the charge.
(iv) Finally, the consequences of misapprehension of the evidential burden on the appellant who raised an alibi as a defence on which misapprehension the learned trial Judge misdirects himself or the jury in coming to a conclusion in his verdict is a miscarriage of justice.
Against these firm grounds contended by the appellant in this case, are the following contention of the respondent, namely:-
(a) That there are two eye witnesses P.W.1 and P.W.2 who saw the appellant set ablaze and burnt down the two thatched dwelling houses of P.W.1 at Mbagena Kpav Shitile on 21/3/89.
(b) The appellant having been fixed at the scene of the crime on the date of the incident, which the learned trial judge believed, his plea of alibi has been physically demolished and destroyed, more so when the appellant did not supply the particulars of his alibi.
(c) The learned trial Judge who had the singular opportunity of watching the demeanour of witnesses and hearing their evidence was thereby right in disbelieving the appellant’s alibi and holding, that the prosecution has proved its case beyond reasonable doubt, more so, when the appellant’s extra-judicial statement to the police was inconsistent with his oral testimony in court.
There are a plethora of decided cases on alibi, perhaps more than on any single issue of law, and because, no facts of any case are exactly the same as that of every other case. I have made the above summaries in this case which are fairly exhaustive, based on the facts of this case and the arguments raised on both sides. I therefore propose to treat the special facts of this case along the foregoing summaries. I note of course, that this Division of the Court of Appeal has no single copy of any Supreme Court of Nigeria Judgments at all in our Library and those cited in this case by learned counsel were not supplied to us. I do not therefore propose to deal with the only cases cited in this appeal.
It is a cardinal principle of Criminal Law in all cases, that the burden of proving that a person has been guilty of a crime or wrongful act, subject to certain exceptions is on the prosecution. The principle that the onus of proving a criminal case beyond reasonable doubt, means, that the primary onus of establishing the guilt of the accused is always on the prosecution except in very special limited circumstances like cases of insanity where the law presumes an accused sane and casts on him the onus of proving the contrary. Where the prosecution has made out o a prima facie case, which if unanswered will lead to the conviction of the accused, the accused has a duty of adducing such evidence as would make the court find any issue in his favour.
In this case, P.W.1 and P.W.2 testified, that the accused/appellant set ablaze and burnt down two thatched dwelling houses of P.W.1 at Mbagena Kpav Shitile on 21st March. 1989. P.W.1 and P.W.2 are blood relations. The appellant from the word go, pleaded alibi, saying that he and D.W.2 were together in appellant’s father’s compound throughout on 21/3/89. The appellant supplied the necessary particulars of where and with whom he was at all material times. In addition, the appellant alleged, that. P.W.1 levelled the allegation against him because of a long standing dispute between them. Both P.W.1 and P.W.2 also testified to the same effect. Again D.W.1 and D.W.2 like P.W.1 and P.W.2 are also blood relations. P.W.3 – the I.P.O. did not at all investigate the said alibi.
The learned trial Judge after considering the whole evidence disbelieved the alibi set up by the appellant and held as follows that:-
“The defence offered is simply not there. It is lacking in substance and has not discredited the evidence of the prosecution”.
It is submitted by the appellant, with which I am in agreement, that the onus on the accused who pleaded alibi in this case is the evidential burden. The learned trial Judge therefore, misapprehended this onus which affected his credibility of the defence witnesses and therefore occasioned a miscarriage of justice.
There is no onus on an accused who set up alibi as a defence to prove his innocence, to discredit or contradict the evidence of the prosecution. The burden of proof of the guilt of the appellant, despite the plea of alibi, remains fixed on the prosecution to prove his guilt beyond reasonable doubt.
The only burden or onus on the appellant on a plea of alibi is merely to put forward evidence accordingly; the onus is not on him to prove such a defence but on the prosecution to disprove it. See Sekeri Abudu v. The State (1985) 1 NWLR (Pt. 1) 55 at p.56.
It is settled law, that an accused whose defence is an alibi has the onus to adduce evidence on the alibi, which when considered with the case for the prosecution, creates a reasonable doubt in the mind of the Judge so as to entitle him to an acquittal. The burden on an accused to adduce evidence in support of his alibi is far less than that in civil cases. However, the mere assertion by an accused that he was elsewhere does not discharge that burden unless the prosecution during investigations found it to be true or there is doubt whether or not it is true. See Chewmoh v. The State (1986) 2 NWLR (Pt. 22) at 332.
The Supreme Court in the case of Patrick Njovens v. The State (1973) 5 S.C. 17 at p.65 stated the rule clearly where Karibi-Whyte (J.S.C.) said:-
“There is nothing extra-ordinary or esoteric in a plea of alibi. Such a plea postulates that the accused person could not have been at the scene of crime and only inferentially that he was not there. Even if it is the duty of the prosecution to check on a statement of alibi by an accused person, and disprove the alibi or attempt to do so, there is no inflexible and/or invariable way of doing this. If the prosecution adduce sufficient and accepted evidence to fix the person at the scene of crime at the material time, surely his alibi is thereby logically and physically demolished.”
In my view, the learned trial Judge adopted a wrong approach to the appellant’s defence of alibi. He misapprehended the onus, which is merely an evidential burden less than that in a civil matter placed on the appellant and thereby misdirected himself in law. A person who puts forward an alibi as an answer to a charge does not assume any burden of proving that answer, and it is a misdirection to refer to any burden as resting on the prisoner and in the instant case, the burden of discrediting or contradicting the prosecution’s evidence. See Kono v. The State (1973) 5 SC 231 at 256; R. v. Anthony Nugh Jonson (1962) 46 CR APPR 45.
In addition, it is my view, in this case, that the learned trial Judge did not infact, consider fully all the evidence before him before arriving on his misapprehension and consequent misdirection of himself on the onus on the appellant. All the witnesses in this case testified that both P.W.1 and the appellant had a long standing dispute. This is not in doubt. P.W.1 and P.W.2 like the appellant and D.W.2 are respectively blood relations. It is therefore my view, that both P.W.2 and D.W.2 are tainted witnesses. A tainted witness is a witness who though not an accomplice, is a witness who may have a purpose of his or her own to serve.
In the case of Mbenu v. The State (1988) 3 NWLR (Pt. 84) 615 at pp. 626 – 627, the Supreme Court per Nnamani J.S.C. (of blessed memory), said:-
“This court has always held, that the evidence of such a witness should be treated with considerable caution and should be examined with a tooth comb. Indeed trial courts have been advised to be very wary in convicting on the evidence of such witnesses without some corroboration: See The State v. Dominic Okola & Ors. (1974) 2 S.C. 73 at 82; Jimoh Ishola v. The State (1978) 9-10 S.C. 81; Pratter (1960) 66 Car 83 at 186; Frederick Valentine Russel (1968) 44 Car 147 at 150”.
Although, the requirement, that a trial Judge should in such circumstances warn himself as one would in the case of accomplices, is one dictated by prudence not by law. In the instant case, the learned trial Judge did not at all give any consideration to the proven and accepted existing animosity between P.W.1 and the appellant, though the appellant had persisted in the said long standing animosity even in his allocutus before his conviction. The learned trial Judge ought to have considered and made a finding of fact, that there is an existing grudge between P.W.1, P.W.2 and D.W.1 and D.W.2 on which the learned trial Judge would have been very cautious and slow in accepting in its entirety as he did, the evidence of the prosecution and disbelieving the appellant.
I am therefore of the firm view, that this is certainly, a case in which the doubt should have been resolved in favour of the appellant: See Okonji v. The State (1987) 1 NWLR (Pt. 52) at 659.
I am therefore of the further view, that the learned trial Judge has not assessed the evidence adduced before him. In a charge under Section 337 of the Penal Code, the prosecution must prove the following essential ingredients of the offence viz:-
(i) That the accused committed mischief (s.326).
(ii) That the mischief was committed by fire or explosive substance.
(iii) That it destroyed/damaged a building and
(iv) That the building was originally used either as a place of worship or a human dwelling house or a place for the custody of property.
The date of the offence is not an ingredient of the offence which must be proved by the prosecution in accordance with the Penal Code. It is therefore submitted by the respondent, that the date is not an essential element of the charge. Notwithstanding this proposition, it is my view, that where the only defence to a charge of mischief by fire under Section 337 of the Penal Code is one of alibi, not only the time but also the date, the offence was committed, both become, vital elements of the charge. This is so, given the three dimensions of human existence and movement, except one be a magician, no one can be in more than one place at a time and date at the same time. But there is nothing mystical or esoteric about a plea of alibi except that one is elsewhere from the scene of crime at the time of the offence.
In the instant case, it is obvious, that both P.W.1 and P.W.2 did neither remember the date of the offence nor testified as to the time of its commission, yet, the learned trial Judge found that the offence was committed in the early morning of 21st March, 1989 before 2.00 p.m .. There is no such evidence on record by the prosecution witnesses. This amounts to a mere speculation and scrounging for evidence to convict the appellant. Where the findings of a trial Judge are not borne out by the evidence before the trial court, a Court of Appeal can properly interfere with such findings: See Seismograph Ltd. v. Ogbeni (1976) 4 S.C 85; Ebba v. Ogodo (1984) 1 SCNLR 372 4 S.C. 84. It is therefore my view, that once, the appellant had denied committing the offence and has in addition, successfully set up a defence of alibi which was not investigated it cannot be said by the trial Judge, that the appellant admitted the date of the offence by defending the offence allegedly committed by him. Such a finding of fact is perverse. I am also satisfied, that the evidence of P.W.1 and P.W.2 as to the date and time of the offence on record are materially in conflict. Where this is so as in the instant case, it does not lie with the trial Judge to pick and choose between the conflicting evidence of the prosecution. It is not the duty of the learned trial Judge of his own volition but that of the prosecution witnesses to proffer an explanation for the conflict and give the defence the opportunity of testing by cross-examination the validity of the proferred explanation. Whereas in the instant case, the conflict is not explained by the prosecution, the benefit of the doubt even a lingering doubt must be exercised in favour of the appellant see Christopher Onibogu & Anor, v. The State 9 S.C. 1 – 24,
Looking at the principle facts of this case and on a proper consideration and assessment of all the evidence adduced against all the surrounding circumstances, they cannot in my view induce belief and it was wrong for the learned trial Judge in such circumstances to say, that he “disbelieved” the appellant and ‘satisfied’ that the prosecution has proved its case beyond reasonable doubt and thereby convicted the appellant.
There is neither magic nor sanctity in the words “I believe or disbelieve” or “I am satisfied”. They should represent the court’s reaction towards proven facts, possibilities and probabilities based on facts accurately assessed and established. I am aware, that a Court of Appeal must in the absence of compelling evidence indicating erroneous appraisal of facts and erroneous conclusions, show the utmost restraint, resist and reject any temptation to interfere with well considered findings made by a learned trial Judge in the court of first instance who had the singular opportunity of not only hearing the evidence but of watching their demeanour: See The State v. Collins Ojo Aibangbee & 1 Or. (1988) 3 NWLR (Pt.84) 548 at p. 550 para F; Sobakin v. The State (1981) 5 S.C. 75 at 78; Okafor v. Idigo (1984) 6 S.C. 1, (1984) 1 SCNLR 481.
I also note, that there is no law or rule of practice specifying, that a man may not be convicted on the evidence of a single credible witness where no corroboration is required see Anthony Idigo v. The State (1975) 1 All NLR 70 at 75; C.O.P. v. D. Kwashie (1953) 14 WACA 319; Alonge v. Inspector-General of Police (1959) 4 F.S.C. 203 at 204; (1959) SCNLR 516.
An appellate court has a duty to examine the grounds upon which the conclusions or inferences of the trial court were based, and if convinced as I am in the instant case, that the inferences and conclusions reached were erroneous, the appellate court would be justified in rejecting these inferences and conclusions.
In the instant case for example, how can a learned trial Judge who did not understand the limited evidential burden on an appellant who put forward a plea of alibi, come to a right other than an erroneous conclusion on the issue? Such a misapprehension leading inevitably to an erroneous misdirection and conclusion will only occasion a miscarriage of justice. The picture presented ultimately is an inconsistent judgment with the facts and the law. A judgment convicting a man of the offence charged, must be seen to be a product of prudent and logical thinking, based upon admissible evidence, in which the facts leading to his conviction are clearly found, and the legal deductions therefrom carefully and rightly made. It cannot be allowed to stand if founded upon a misapprehension, misdirection and/or error in law. It is so in all cases and more so in criminal cases. See Nwosu v. The State (1986) 4 NWLR (Pt. 35) 348 at p. 350, I find no conflict in the testimony of the appellant in court and his statement to the police. The evidence of P.W.2 is not circumstantial.
Based on the foregoing, I resolved issue No. 1 in favour of the appellant. Grounds 1, 2 and 4 of the grounds of appeal on which issue No.1 is raised hereby succeed. I reject the argument of the respondent on issue No, 1 aforesaid.
On issue No, 2, whether the sentence was excessive in the circumstances which is covered by ground 3 of the grounds of appeal, it is submitted in appellant’s brief that the sentence of 5 years imprisonment and N500 (Five hundred Naira) fine, failing in payment of the said fine to serve additional 6 months in prison is manifestly excessive in the circumstances where, the learned trial Judge in sentencing the appellant:-
(i) attributed the appellant’s motive for the arson as a result of running long standing land dispute between P.W.1 and the appellant.
(ii) the learned trial Judge believed P.W.2, that the appellant had previous convictions for trespass over the same land elicited in cross-examination of P.W.2 contrary to sections 224 and 225 of the Evidence Act, and
(iii) despite the fact that the state counsel Mr. Abah said in court before sentence as follows:-
“We have no record of previous convictions.”
It is submitted, that the failure to prove previous conviction against the appellant, the passionate plea made by the appellant in allocutus, the finding of animosity between P.W.1 and the appellant by the learned trial Judge and the appellant’s persistence that the charge was levelled against him because of the long standing land dispute, were cumulatively mitigating circumstances against the excessive sentence imposed on the appellant by the learned trial Judge. In support of the above submissions, the following cases are cited in Appellant’s brief:- R v. Wanner (1908) 1 Car Appr 227. Thomas Dowling v. I.G.P. (1961) 1 ANLR 782; AGP v. Kasumu & Ors. (1957) WRNLR 103; Queen v. Okon Eyo & Ors.(1962) 1 ANLR 516 at 517.
In reply to issue No.2, it is submitted in the respondent’s brief, that the learned trial Judge was mild with the appellant in the sentence passed on him. The offence of mischief by fire under Section 337 of the Penal Code carries life imprisonment and a fine which is in the exclusive jurisdiction of the learned trial Judge to sentence him. See the case of Tsaku v. The State (1986) 1 NWLR (Pt.17) 516 at 521. It is submitted, that the charge against the appellant having been proved beyond reasonable doubt, the learned trial Judge rightly convicted and sentenced the appellant on record.
On my consideration of issue No.2, it is settled law, that a trial Judge has a discretion in matters of sentence. But the discretion or power must be exercised judicially on the basis of the materials before him. It is desirable that exercising his discretion over sentence, a trial Judge should state in his judgment the factors that influenced his decision. See Namo Tsaku & Ors. v. The State (1986) 1 NWLR (Pt. 17) 516 at 521.
In the instant case, the factors that influenced the learned trial Judge’s decision in passing the sentence appealed against are:-
(i) The moving plea of the appellant
(ii) The appellant’s insistence that the allegation is still false and was actuated by the existing land dispute.
(iii) Resort to violence to settle disputes which is no longer the best in civilized societies and the proclivity has to be arrested.
(iv) The violent barbarism of letting loose fire on opponents properties is treated severely, under the code.
(v) That the area is witnessing an upsurge of mischief by fire for whatever the motive.
(vi) The duty of the court to restore sanity and protect lives and property.
The Appellate Court will not interfere with a sentence imposed by a trial court, unless it is manifestly excessive in the circumstances or wrong in principle. See Thomas E. Dowling v. I.G.P. (1961) 1 ANLR 782.
In the instant case, the maximum sentence prescribed under Section 337 of the Penal Code for the offence of mischief by fire is life imprisonment or any less term and shall in addition be liable to a fine. In the instant case, the sentence passed by the trial Judge is 5 years imprisonment and N500 (Five Hundred Naira) fine and in default of payment of the fine to 6 months imprisonment in addition. This sounds like a double punishment, but it is in accordance with the provisions of the Penal Code. There is no doubt, that such an offence when proven calls for a severe punishment albeit as a deterrent.
In this case, I have already on issue No. 1 held, that the learned trial Judge was wrong in convicting the appellant. Consequently, he would be and was indeed in error in sentencing the appellant in the first instance. It is no longer necessary to consider whether the sentence was excessive, but since it is a ground of appeal. I deem it necessary to consider it.
An appellate court has jurisdiction to set aside or reduce a sentence if it finds in the record substantial evidence of mitigating circumstances in favour of the accused. Where a trial court imposed a sentence in excess of the maximum sentence provided by the law for the offence charged, an appellate court will set aside the sentence and impose in its place, a sentence within the powers of the trial court to impose.
In the instant case, if the conviction of the appellant were valid, the sentence passed by the learned trial Judge would not have been excessive. It would however be wrong ab initio since the principle of law on which the learned trial Judge convicted the appellant to begin with is wrong. I also resolve issue number 2 against the respondent on the ground that the principle upon which the sentence was passed is wrong. To that extent ground 3 of the grounds of appeal also succeeds.
On these grounds, the conviction and sentence of the appellant are hereby quashed and set aside. In their place, there will be entered, a verdict of acquittal and discharge. But this is not the end of the matter.
I have read through the record of proceedings in this case and searched in vain the arraignment and plea of the appellant. It is therefore a fact, that the charge was not read over to the accused person and not explained to him in a language he understands. No plea was taken. This point is not taken in this appeal, but it is very fundamental and an infraction of the Constitution that it cannot be ignored.
Section 187(1) and (2) of the Criminal Procedure Code applicable to the Northern States of Nigeria provide as follows:-
“187(1) When the High Court is ready to commence the trial the accused shall appear or be brought before it and the charge shall be read out in court and explained to him and he shall be asked whether he is guilty or not guilty of the offence charged.
(2) If the accused pleads guilty the plea shall be recorded and he may in the discretion of the court be convicted thereupon unless the offence charged is punishable with death when the presiding Judge shall enter a plea of not guilty on behalf of the accused”.
In the instant case, there was no arraignment at all and the appellant did not plead to the charge. There is nothing in the record of proceedings to the contrary. The punishment for the offence charged in the instance case is not punishable with death. Subsection (2) of Section 197 of the Criminal Procedure Code does not therefore, apply in the instant case. Section 187(1) applies.
It is good practice for trial courts to specifically record that, “the charge was read and fully explained to the accused person and he understood same to the satisfaction of the court before recording his plea thereto”. Failure to record a plea will be fatal to the proceedings; Ibid. So will a recorded plea of “Not guilty”, if the accused was entitled to an interpreter but none appears on the record: Umaru Dan Umaru v. The State (1978) NNLR (FCA).
It is therefore, the law, that for there to be a valid and proper arraignment of an accused person, the following conditions as contained in Part XXIV. Section 215 of the Criminal Procedure Act and Section 33(6) (a) of the 1979 Constitution must be satisfied:
(i) The accused shall be placed before the court unfettered unless the court shall see cause to otherwise order;
(ii) The charge or information shall be read over and explained to him in a language he understands to the satisfaction or the court by the Registrar or otherwise officer of the court; and
(iii) The accused shall then be called upon to plead instantly thereto (unless there are valid reasons to do otherwise as provided in Section 100 of the Criminal Procedure Law) See Sunday Kajubo v. The State (1988) 1 NWLR (Pt. 73) 721 at p.723 paras D-E.
Failure to comply with any of the conditions laid down in (i), (ii) and (iii) above in Kajubo v. The State (supra) will render the whole trial a nullity: See Eyorokoromo v. The State (1979) 6-9 S.C. 3; Josiah v. The State (1985) 1 NWLR (Pt. 1) 1251 S.C. 406 at 146. (1985) 1 NWLR 125
An arraignment consists of charging the accused and reading over and explaining to him in the language he understands to the satisfaction of the court, followed with a plea see Oyediran v. The Republic (1967) NMLR 122.
Section187(1) of the Criminal Procedure Code is mandatory not directory and so is Section 215 of the Criminal Procedure Act. The mandatory nature of these sections is further confirmed by Section 33(6)(a) of the 1979 Constitution which provides that:-
“Every person who is charged with a criminal offence shall be called to be informed promptly in the language he understands and the detail of the nature of the offence”.
In the instant case, the conditions laid down in Section 187(1) of the Criminal Procedure Code as well as Section 215 of the Criminal Procedure Act and Section 33(6)(a) of the 1979 Constitution are not formality but specifically mandatorily set out to guarantee a fair trial of an accused person. The trial Judge has a bounden duty to ensure the compliance with the said provisions by showing that in his record. See Josiah v. The State (supra).
For non-compliance with S. 187(1) of the Criminal Procedure Code, applicable to Northern States of Nigeria and Section 33(6)(a) of the 1979 Constitution, this trial and the whole proceedings are a nullity. The mandatory provisions that the information or charge should
(i) be read over and explained to the accused
(ii) in the language he understands and
(iii) to the satisfaction of the court, are to ensure that the accused person understands and appreciates what is being alleged against him to which he is required to make a plea.
The rationale is, that the language of the court in which the charge is also drafted is English. English is not the mother tongue of Nigerians, the majority of whom are illiterate in English and even those of them who are literate may not easily follow and comprehend the language of the court. For these reasons, our Criminal Procedure Jurisprudence and Section 33(6)(a) of the 1979 Constitution considered it necessary, that there must be a valid and proper arraignment else the whole trial and proceedings as in the instant case are a nullity.
The inevitable question which arises when a trial is declared a nullity is-
How can an appellant, who in the contemplation of the law, had not even been tried, be on appeal acquitted and discharged (in the instant case) from the serious offence of mischief by fire under S.337 of the Penal Code against him involving a sentence of life imprisonment and a fine in addition”?
Any court discharging such an appellant would naturally add – “Would to God you were innocent”. And as stated why Bringman L.C.B. in Liburn’s case (1660) 5. How St. 1205. “The word innocent hath a double acceptance, innocent in respect of malice and innocent in respect of the fact”
From both “acceptance”, the present appellant cannot at this stage, even though his purported trial has been declared null and void, be sent back for retrial in view on my earlier decision on the issues for determination on the grounds of appeal both in fact and in law, that the case against the appellant has not been proved beyond reasonable doubt.
Having set aside the conviction and sentence of the trial court on those grounds, I hereby add, “thanks to God, that the appellant is innocent and that I had already found him innocent of the charge”, else he would have been sent back for retrial.” I therefore, hereby allow the appeal and on the foregoing, declare the whole trial a nullity. I hereby further order, that the appellant be released from prison forthwith. He is accordingly discharged and acquitted and should not be sent back for trial on the same charge.
Appeal allowed.
Other Citations: (1994)LCN/0203(CA)