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Federal Republic Of Nigeria V Nasiru Yahaya (2019) LLJR-SC

Federal Republic Of Nigeria V Nasiru Yahaya (2019)

LAWGLOBAL HUB Lead Judgment Report

IBRAHIM TANKO MUHAMMAD, J.S.C.

The respondent, herein, was the accused person (defendant) at the High Court of Justice, Zamfara State, holden at Gusau Judicial Division (“trial Court” herein).

The appellant herein, as complainant at the trial Court, was the Federal Republic of Nigeria which was represented by the prosecution.

The prosecution filed at the trial Court, a charge of criminal misappropriation against the respondent which reads as follows:

“That you Nasiru Yahaya between 27th April, 2011 and 21st May, 2011 at Gusau within jurisdiction of the High Court of Zamfara State, dishonestly converted to your own use the sum of N64,800,000.00 (Sixty-Four Million, Eight Hundred Thousand Naira only) belonging to one Alhaji Musa Baba and that you thereby committed an offence contrary to Section 308 and punishable under Section 309 of the Penal Code.”

The respondent was duly arraigned and he pleaded “not guilty” to the charge.

The appellant called four (4) witnesses and tendered five (5) exhibits in proof of the offence. The respondent testified in his own defence. He called no witness and tendered no exhibits.

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At the end of trial, the learned trial judge made a finding that the prosecution had failed to establish a case of criminal misappropriation under Section 308 and punishable by Section 309 of the Penal Code. He, accordingly, entered a verdict of discharge and acquittal in favour of the respondent.

On appeal to the Sokoto Division of the Court of Appeal (Court below) by the appellant, the Court below, after review of the whole case, made a comparative analysis of the evidence placed before the learned trial judge and depicted some conflicts and contradictions, especially in the evidence of PW1 and that of the accused/respondent. It allowed the appeal in part. It set aside the judgment of the trial Court and ordered for a retrial of the case.

Dissatisfied with the decision of the Court below, the appellant appealed further, to this Court, on six (6) grounds of appeal as set out in its Notice of Appeal dated 14th July, 2014 and filed at the Registry of the Court below on the 15th of July, 2014 (pp. 179 -184 of the Record of Appeal).

Having settled their briefs of arguments including appellant’s

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reply brief, in accordance with the Rules of Court, each of the parties formulated its/his respective issues for determination by this Court. Below are the issues of the appellant (page 5 of its brief):

  1. “Whether the learned Justices of the Court of Appeal were right in making an order of re-trial having set aside the acquittal of the respondent (Distilled from Grounds 2, 3 and 4 of the Grounds of Appeal)
  2. Whether the learned Justices of the Court of Appeal should have made an order of conviction of the respondent after setting aside his earlier acquittal by the trial Court (Distilled from Grounds 1, 5 and 6 of the Grounds of Appeal).”

Respondent’s issues are set out on page 2 of the brief of argument):

A. “Whether the prosecution/appellant proved the charge against the respondent beyond reasonable doubt (Grounds 5).

B. Whether the learned Justices of the Court of Appeal were right in making an order of re-trial and not conviction, having set aside the acquittal of the respondent (Grounds 2, 3, 4 and 6).”

The appellant’s issues are, in my view, adequate in resolving the appeal.

In making his submissions on issue No.1, learned counsel

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for the appellant argued that in setting aside the acquittal of the respondent, the Court below did not declare the proceedings of the trial Court a nullity. Learned counsel posed a challenge to the reasoning process upon which the Court below relied to set aside the acquittal of the respondent by the trial Court, in failure of the learned trial judge to resolve the “conflicting and divergent evidence of PW1, PW2 and that of the accused.” Learned counsel stated that the divergent evidence the learned Justice of the Court of Appeal (who wrote the leading judgment page 176 of the Record of Appeal) was: whether there was an agreed lifetime within which the respondent was to deliver the fertilizer to PW1 and PW2. This piece of evidence was found to be significant by the Court below, in determining the guilt or otherwise of the respondent. Learned counsel for the appellant contends further that there was an agreed time frame for completion of the transaction, which the respondent denied. The learned counsel tied his argument to the non-production of evidence by the respondent at the trial Court where as the appellant, he argued further, had in

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addition to the evidence of PW1 led further evidence on the issue of time frame, through PW2 (p.82 of the Record of Appeal) PW4 (pp 87 and 100 of the Record of Appeal) and Exhibit ‘C’ (p.7 of the Record of Appeal) which was tendered without objection. He argued further that all these pieces of evidence are contained in the printed record of appeal before the Court below and this Court. Learned counsel submitted that as the trial Court was wrong, as decided by the Court below, (p.173 of Record of Appeal) in not resolving the issue of time frame, the learned Justices of the Court below, were equally wrong in not making use of the evidence contained in the printed Record of Appeal before them to resolve the dispute once and for all. He cited the case of Lagga v. Sarhuna (2008) 16 NWLR(Pt.114) 427 at 461-462. He further stated that part of the appellant’s evidence contained in the Record of Appeal is documentary, i.e. Exhibit C, yet the Court below made an order for re-trial.

Learned counsel for the appellant submitted that the two decisions relied upon by the Court below in making a re-trial order:Ajao v. Alao (1986) NWLR (Pt.45) 805 and

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Shell BP Petroleum Dev. Co. Nigeria Ltd. v. Cole & 7 Ors (1978) 3 SC (Re-print) 128; are not good authorities in making the said order in the instant case. Learned counsel went further to cite the case ofOlodo v. Josiah (2010) 18 NWLR (Pt.1225) 653 at 672 A – C where this Court held that where a trial Court fails to make findings on material and important issues of fact, the appellate Court will have no alternative than to make such findings of facts and that in that case, an appellate Court will interfere with the evaluation of evidence by the trial Court, where, inter alia, the trial Court failed to make proper use of the opportunity of seeing, hearing and observing the witnesses. Learned counsel argued that it is beyond dispute that in the instant case the trial Court had failed to make proper use of that opportunity.

The learned counsel for the appellant submits that the proper thing for the Court below to have done in the circumstances of this case was not to make an order of re-trial but to draw the necessary inferences and make appropriate findings as held in the last cited case above Olodo v. Josiah (supra) and the case of Adebayo v. Shogo (2005) 7 NWLR

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(Pt.925) 467 at 481 D – G. Learned counsel stated that these powers have statutory backing under Section 16 of the Court of Appeal Act (as amended); Order 4 Rule 3 of the Court of Appeal Rules, 2011 and Section 26 of the Supreme Court Act; Order 8 Rule 1(2) of the Supreme Court Rules, 1985 (as amended). Further, learned counsel reiterated the point that the presence of documentary evidence (Exhibit C) and other form of evidence (circumstantial evidence) should have rendered the task of making the correct findings by the Court below, easier. He cited the case of Yaro v. Arewa Construction Ltd. (2007) 17 NWLR (Pt.1063) 333 at 373; Karibo v. Grend (1992) 3 NWLR (Pt.230) 426 at 441.

On the issue of time of delivery of the fertilizers, learned counsel for the appellant submits that the parties agreed on time of delivery of the fertilizers which had passed without the respondent supplying the fertilizer or refunding the money he collected. This, learned counsel argued, could have made the Court below to infer criminal intent on the respondents part and ground a conviction. Other instances of circumstantial evidence abound such as (a) the

See also  Attorney-general Of Rivers State V. Attorney-general Of Bayelsa State & Anor (2012) LLJR-SC

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respondent’s demand of payment 100% upfront but to source the commodity (fertilizer) bit-by-bit (b) immediately the respondent collected the said amount of N64.8m, he transferred N25m to his girlfriend (fiancee) who was not a fertilizer merchant but a student; (c) with or without Express term as to time of delivery would apply in this circumstance (d) from the date of payment of the money up till today, the respondent has failed to effect supply or re-payment of money collected by him (e) the respondent, throughout, did not mention anybody as a business partner.

Learned counsel submitted that the Court below should have been guided by the decision of this Court in Karibo v. Grend (1992) 3 NWLR (Pt.240) 426; to make use of the available circumstantial evidence instead of ordering for a re-trial. Learned counsel urged this Court to reverse the re-trial order made by the two Courts below and rely on its powers under Section 26 of the Supreme Court Act and substitute it with an order of conviction. He urged this Court to resolve this issue in the negative and in favour of the appellant.

The second issue by the respondent, i.e. issue (B) is in pari materia with appellant’s issue (i).<br< p=””

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In his submissions on the issue, the learned counsel for the respondent argued that the Court of Appeal was right in ordering a retrial. He cited in support, the case of Moshood v. The State (2004) 14 NWLR (Pt.893) 422 at 428 where circumstances for a retrial order were clearly stated. Learned counsel contended that the Court below ought to have relied on the evidence of the respondent to uphold the decision of the trial Court acquitting the respondent and that it ought not to have ordered a retrial; is totally misconceived. He cited and relied on the case of Eke & Ors v. Okwaranyia & Ors (2001) LPELR – 1074; in urging this Court to hold that the Court below was right when it ordered a retrial and the argument of the appellant not to order a retrial, should be discountenanced and that the Court below ought have convicted the respondent after setting aside the acquittal order made by the trial Court. Further, learned counsel submitted that the argument of the appellant cannot be sustained as the evidence before the trial Court clearly shows that the prosecution had failed to prove the guilt of the respondent beyond reasonable doubt, amidst material

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contradictions (pp 175 – 176 of the Record of Appeal), which ought to be resolved in favour of the accused/respondent. He cited the case of Nwangwa & Ors v. The State (1997) LPELR, 6315. Such contradictions, it is argued further, ought to be resolved in favour of the respondent. Learned counsel urged this Court to invoke its power in Section 22 of its Act to uphold the decision of the trial Court in acquitting the respondent.

My Lords, it can clearly be seen from the issues and submissions of learned counsel for the respective parties that respondent’s issue No. 2 or “B”, as reflected, squarely fits in appellant’s issue No.(i). I will consider this issue first.

This issue (already reproduced above), is framed with the aim of considering the powers of the Court below in making a re-trial order in a criminal proceeding after setting aside an acquittal order made by the trial Court. The general powers of the Court of Appeal as provided by Section 16 of the Court of Appeal Act, reads as follows:

“The Court of Appeal may from time to time make any order necessary for determining the real question in controversy in the appeal, and may amend any

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defect or error in the record of appeal… and may re-hear the case in whole or in part or may remit it to the Court below for the purpose of such re-hearing or may give such other directions as to the manner in which the Court below shall deal with the case in accordance with the powers of that Court, or, in case of an appeal from the Court below in that Court’s appellate jurisdiction, order the case to be re-heard by a Court of competent jurisdiction.”

My lords, one may be tempted to ask: Is the Court below justified in making a re-trial order The main reasons for sending the case back for re-trial are stated by the Court below in pages 175 -176 of the Record of Appeal as follows:

“The learned judge in my respectful view without showing how he arrived at the conclusion picked and chose out of the conflicting and divergent versions of the evidence of PW1 and the accused on a crucial point in the case. How His Lordship arrived at the conclusion that the contract was rescinded by PW1 and PW2 in the face of the evidence of PW1 without disbelieving any of the witnesses cannot be assumed but must be evident from the judgment and on the face of the record.

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This turns on the credibility of witnesses which cannot be assessed by this Court not having had the advantage of seeing the witnesses. In Shell BP Petroleum Dev. Co. Nigeria Ltd. v. Cole & Ors (1978) 3 SC (Reprint) 128 Bello JSC (as he then was) held thus:

`This Court has in numerous cases reiterated the rule that the Court of Appeal will not ordinarily interfere with the findings of facts by the trial judge but where there is ample evidence and the trial judge failed to evaluate it and make correct findings on the issue the Court of Appeal is in as much a good position as the trial Court to deal with the fact and to make proper findings. However, in a matter where so much turns on the credibility or reliability of witnesses, the proper course to be taken by the Court of Appeal is to make an order for a retrial. See Chief James Okpiri & Ors v. Chief lgoni Jonah & Ors (1961) 1 All NLR 102; Olalere Obadara & Ors v. The President, Ibadan West District Court (1964) 1 All NLR and Oladipo Maja v. Leamdro Stocco (1968) NMLR 172.’

This piece of evidence is significant in determining whether or not there was criminal misappropriation or

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it was a mere business transaction. If the accused failed to deliver the fertilizers as promised and did not refund the money given him, and failed to even account for the money then he could be held to have criminally withheld it, and criminal intention could be inferred from the circumstances.

If on the other hand, the contract was terminated by PW1 and PW2 then the prosecution’s case would have to collapse. But determining the above would involve resolution of conflicting and divergent evidence of PW1, PW2 and the accused which the learned trial judge failed, with due respect to do.”

The major finding of the Court below which made it to order for a re-trial, as I see it from the record, is on the completion period of the job/contract between the respondent and PW1 – Mustapha Haske Turaki. It was in evidence before the trial Court that Mustapha Haske, as PW1 gave evidence as follows:

“At the expiration of 2 weeks there was no supply, he pleaded for an extension of time of one week I told him, I have to notify the owner Alh. Musa Baba”

DW1, Nasiru Yahaya, the respondent, stated as follows:

“There was no specific time of delivery with

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PW1 because it is being purchase(sic) bit by bit.”

At the conclusion of hearing the learned trial judge made a finding that the business/transaction between the parties was a failed business or commercial transaction which could not be said to be criminal misappropriation. He, accordingly, discharged and acquitted the accused/respondent. The Court below faulted the decision of the trial Court. It made the following observation:

“The learned trial judge who had the opportunity to see and hear the witnesses failed to resolve this conflict on a fundamental point in the evidence of both parties.”

The law has, for long, been stated by this Court in case of a retrial that in a matter where so much depends on the credibility of evidence of parties and their witnesses, the proper course to be taken by an appellate Court is to order a retrial. The case of Mbionwu v. Obi (1997) 2 NWLR (Pt.487), has been cited in support.

See also  John Ikinbor Dweye & Ors V. Joseph I. Iyomahan & Ors (1983) LLJR-SC

The Court below, in justifying its decision to remit the case for retrial faulted how the learned trial judge arrived at his conclusion. Awotoye, JCA; who delivered the lead judgment, had this to say:

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“The learned judge in my respectful view without showing how he arrived at the conclusion picked and chose out of the conflicting and divergent versions of the evidence of PW1 and the accused on a crucial point in the case. How His Lordship arrived at the conclusion that the contract was rescinded by PW1 and PW2 in the face of the evidence of PW1 without disbelieving any of the witnesses cannot be assumed but must be evident from the judgment and on the face of the record. This turns on the credibility of witnesses which cannot be assessed by this Court not having had the advantage of seeing the witnesses. In Shell BP Petroleum Dev. Co. Nigeria Ltd. v. Cole & Ors (1978) 3 SC (Reprint) 128 Bello JSC (as he then was) held thus:

‘This Court has in numerous cases reiterated the rule that the Court of Appeal will not ordinarily interfere with the findings of facts by the trial judge but where there is ample evidence and the trial judge failed to evaluate it and make correct findings on the issue the Court of Appeal is in much a good position as the trial Court to deal with the fact and to make proper findings. However, in a matter where so much turns on the

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credibility or reliability of witnesses, the proper course to be taken by the Court of Appeal is to make an order for a retrial. See Chief James Okpiri & Ors v. Chief Igoni Jonah & Ors (1961) 1 All NLR 102; Olalere Obadara & Ors v. The President, Ibadan West District Court (1964) 1 All NLR and Oladipo Maja v. Learndro Stocco (1968) NMLR 172.’

This piece of evidence is significant in determining whether or not there was criminal misappropriation or it was a mere business transaction. If the accused failed to deliver the fertilizers as promised and did not refund the money given him, and failed to even account for the money then he could be held to have criminally withheld it, and criminal intention could be inferred form the circumstances.

If on the other hand, the contract was terminated by PW1 and PW2 then the prosecution’s case would have to collapse. But determining the above would involve resolution of conflicting and divergent evidence of PW1, PW2 and the accused which the learned trial judge failed, with due respect to do.”

Thus, the Court below found that there were conflicting and divergent evidence of PW1, PW2 and the appellant, which

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the trial Court failed to resolve. It stated further that the learned trial judge arrived at his conclusion by choosing and picking out of the conflicting and divergent versions of the evidence of PW1 and the accused/respondent on crucial points without showing how he arrived at his conclusion that the contract was rescinded by PW1 and PW2 in the face of the evidence of PW1, without disbelieving any of the witnesses. This, the Court below observed, turned on the credibility of witnesses which cannot be assessed by it not having had the advantage of seeing the witnesses. In the case of Duruaku Eke & Ors v Udeozor Okwaranyia & Ors (2001) LPELR 1074, this Court stated as follows:

“It may well happen that a trial Court made no finding of fact on conflicting material evidence adduced on an issue by both parties to an action, the resolution of which is essential to the just determination of the case, the proper course is to order a retrial unless the circumstances of the case do not warrant such an order.”

See further: Chief James Okpiri & Ors v. Chief Igoni Jonah & Ors (1961) 1 All NLR 102; Olalere Obadara &

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Ors v. The President, Ibadan West District Court (1964) 1 All NLR; Oladipo Maja v. Learndro Stocco (1968) 1 NMLR, 172. It is thus, the primary duty of any trial Court, where assessment or evaluation of evidence rests on the credibility of witnesses to unfailingly discharge that function as it is the one and only Court that had the advantage of seeing and observing the witnesses. Where it however fails to discharge such responsibilities, then an Appeal Court is in much a good position as the trial Court to deal with the fact and make proper findings. In the case ofShell BP Petroleum Dev. Co. Nigeria Ltd. v. Cole & Ors (1978) 3 SC (reprint) 128; this Court, per Bello, JSC (as he then was and of blessed memory), held, among other things, that:

…In a matter where so much turns on the credibility or reliability of witnesses, the proper course to be taken by the Court of Appeal is to make an order for a retrial.”

It was the duty of the trial Court to resolve the divergent and conflicting evidence placed before it. The Court below found that that duty was not discharged by the trial Court. The Court below made two fundamental observations which

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would necessitate a retrial: (a) there was the need to determine whether there was criminal misappropriation in the transaction between the parties in dispute or, it was a mere business transaction. If the respondent had failed to deliver the fertilizers as agreed and did not refund the money said to have been collected by him, and even failed to account for the money, he could be held to have criminally withheld the money and, in that case, criminal intention could easily be inferred from the circumstances. (b) If, on the other hand, the contract was, as alleged, terminated by PW1 and PW2, then the prosecution would have failed to establish the offence of criminal misappropriation. In either case, determining any of the above allegations would call for the resolution of the evidence of PW1, PW2 and the respondent which the Court below found to be divergent and conflicting. This was found by the Court below, not to have been done by the trial Court. That was why the Court below set aside the judgment of the trial Court and ordered for a retrial.

Permit me to remind your lordships that a retrial order becomes necessary when there had been an error in law or

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an irregularity in the procedure that does not make the trial a nullity or results in miscarriage of justice. In the case of Moshood v. The State (2004) 14 NWLR (Pt.893) 422 at 428, the Supreme Court spelt out the criteria for a retrial order: The Court must be satisfied that: (a) the evidence taken may otherwise disclose the commission of the offence substantially, (b) there is no special circumstance that will render it oppressive to put the accused to trial a second time; (c) that to refuse an order for a retrial would result in a greater injustice; (d) that the offence or offences of which accused was convicted or the consequences to the accused or any other person of the conviction or acquittal of the accused, are not merely trivial. The case of Abodundu v. The Queen (1958) 4 FSC 70 at 73 was cited in support. In further support of the retrial order, the case of Duruaku Eke & Ors v. Udeozor Okwaranyia & Ors (2001) LPELR 1074, this Court, per Uwaifo, JSC stated as follows:

“It may well happen that a trial Court made no finding of fact on conflicting material evidence adduced on an issue by both parties to an action, the resolution of

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which is essential to the just determination of the case; the proper course is to order a retrial unless the circumstances of the case do not warrant such an order.”

The Court below is justified in my view, in making an order for retrial because there are found to be two conflicting versions of the essential facts of the case – time span of delivery of the subject of the contract i.e. fertilizer and divergent and conflicting evidence of PW1, PW2 and the respondent. Specific findings on the issues in controversy, will have to be made by the trial Court. In most time such findings will depend on the reliability of the witnesses who testified on either side. Where the trial Court failed to indicate which version it accepted as true, an appellate Court cannot believe witnesses it never saw or heard. In that circumstances, the appeal may be allowed as done by the Court below and retrial order be made. Equally, when a trial judge makes a wrong approach to the assessment of evidence especially in failing to resolve conflicting evidence. See: Ezeoke v. Nwagbo (1988) 1 NWLR (Pt.72) 616; Oke & Ors v. Eke & Ors (supra); Okpiri v. Jonah (1961) 1 All NLR 102. It is

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clear from the Record of Appeal where the Court below observed that the learned trial judge, without showing how he arrived at his conclusion, “picked and chose” from the “conflicting and divergent versions” of the evidence of PW1 and the accused on a crucial point in the case; how the learned trial judge arrived at the conclusion that the contract was rescinded by PW1 and PW2 in the face of the evidence of PW1 without believing any of the witnesses cannot be assumed but must be evident from the judgment and on the face of the record. The Court below tied all these lapses to the failure of the learned trial judge to assess the credibility of the witnesses which is a cardinal requirement placed on the shoulders of a trial judge.

In another dimension, the learned counsel for the appellant made interesting submissions in relation to the general powers of the Court below and by extension to this Court. He has said, inter alia:

“Meanwhile, this Court has held in a long line of authorities, particularly the recent case of Olodo v. Josiah (2010) 18 NWLR (Pt.1225) 653 at 672 para A-C that where a trial Court fails to make findings on

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material and important issues of fact, the appellate Court will have no alternative than to make such findings on facts. The Court further held in that case that an appellate Court will interfere with the evaluation of evidence by a trial Court where, inter alia, the trial Court failed to make proper use of the opportunity of seeing, hearing and observing the witnesses.

It is beyond dispute that in the instant case the trial Court had failed to make proper use of that opportunity. The Court below, per Awotoye, JCA, has this to say in that regard (page 173):

I have gone through the entire proceedings. The learned trial judge who had the opportunity to see and hear the witnesses failed to resolve this conflicting on a fundamental point in the evidence of both parties.’

We therefore submit that the proper thing for the Court below to have done in the circumstances of this case was not to make an order of retrial but to draw the necessary inferences and make the appropriate findings as held by this Court in the above cited case and the case of Adebayo v. Shogo (2005) 7 NWLR (Pt 925) 467 at 481 paras D-G.

In the latter case, this Court held that:

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‘Where the findings of fact made by the trial Court are not supported by the credible evidence given or by the weight of evidence and notwithstanding the use of ‘I believe, ‘I do not believe, reject as false’, without really evaluating the evidence of vital witnesses, an appeal Court can itself evaluate the evidence and make findings as the trial Court.’

Incidentally, even the Court below has restated this position in the recent case of Borishade v. FRN (2012) 18 NWLR (Pt.1332) 347 at 40-402 paras. G-A, 409 paras D-G and 411 paras D-F. It is remarkable that these powers have statutory backing under Section 16 of the Court of Appeal Act (as amended) and Order 4 Rule 3 of the Court of Appeal Rules, 2011 as well as Section 26 of the Supreme Court Act and Order 8 Rule 1 (2) of the Supreme Court Rules, 1985 (as amended).”

My lords, the general powers exercisable by this Court on appeal are conferred by Sections 22 and 26 of the Supreme Court Act, Cap 424, Laws of the Federation of Nigeria, 1990 and Order 8 Rules 12 and 13 of the Supreme Court Rules, 1985 (as amended). It is to be noted however, that under the Act and the Rules of this Court and similar

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provisions of the Court below, referred to earlier by learned counsel for the appellant and upon which he placed reliance to submit that the Court below was wrong to have ordered for a retrial and that this Court should reverse the retrial order and substitute it with an order of conviction. My understanding in that respect is a little different from that of the learned counsel for the appellant in that such provisions (where applicable) empower the Court to draw inferences where there is no dispute about the facts; where the only dispute is the inference to be drawn either from agreed facts or facts as found, then this Court, is in such a case, in as good a position as the trial Court to draw the correct inferences. See: Obodo v. Ogba (1987) 2 NWLR (Pt.54)1. It is gratifying to note that the learned counsel has, himself, conceded that there was a little divergence in evidence placed before the trial Court by the parties:

“Although we concede that there is a little divergence (which is a common feature of the evidence of truthful witnesses) as to the exact agreed period of times but a point of convergence in the evidence of the

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prosecution was that the parties agreed on time of delivery of the fertilizers by the respondent.”

Learned counsel for the appellant should know very well that speculations have no place in law and Courts of law discourage speculations. Certainty is the hallmark of evidence law and our Courts lay heavy premium on it. It is my candid belief that it is only a retrial of this case that will meet the justice of this case. This will ultimately assuage the “great concern” of the appellant as all facts in the case must be laid wide open by the parties before the Court; all witnesses are methodically examined and cross examined and their evidence carefully assessed and evaluated. This is the only way to guarantee or ensure fair trial. The case appears to be a criminal matter. However, fair trial should not be sacrificed at the altar of the doctrine of double jeopardy. It is true that “justice delayed is justice denied”. Equally, “justice rushed is justice denied.”

I am in agreement with the Court below that the case should go back to the trial Court for a retrial. A retrial, my lords, is always aimed at doing justice between the parties to the case.

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It is not to favour one of the parties at the expense of the other. It is not, therefore, ordered merely to afford an opportunity to the plaintiff in a civil matter, or prosecution in a criminal case to improve upon a hopeless case. See: Ayoola v. Adebayo (1969) 1 All NLR 159 at 162; Solomon & Ors v. Mogaji & Ors (1982) 11 SC 1 at 24 & 25; Total Nigeria Ltd. v. Nwako (1978) 5 SC 1 at 14; Okpiri v. Jonah (1961) 1 All NLR 102.

In conclusion, I find no merit in this appeal. The appeal is determined on this issue alone. I find no need to consider appellant’s second issue. Accordingly, this appeal is hereby dismissed by me. I affirm the Court below’s judgment which ordered for a retrial of the case.


SC.645/2014

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