Momoh Jimoh Salau V. The State (2019) LLJR-SC

Momoh Jimoh Salau V. The State (2019)

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This appeal is against the judgment of the Court of Appeal, Abuja Division, delivered on 3/3/2016, which affirmed the conviction and sentence of the Appellant by the trial Court, wherein he was convicted and sentenced to 24 years imprisonment and fine of N20,000 for the offence of mischief by fire, contained in the amended Charge dated 7/4/2011 at pages 2-3 of the record.

At the trial, the Prosecution called 6 witness and tendered several Exhibits; at the end of which a no case submission was made leading to the discharge of the Appellant on 1st and 3rd charges only and convicted on the 4th head of charge for 24 years imprisonment and fine of N20,000. On appeal to the lower Court, the Appellant lost, hence this appeal.

By a Notice of Appeal, the Appellant formulated 3 Grounds of appeal with their particulars. In arguing the appeal, the Appellant formulated an issue for the determination of the appeal thus:

Whether the Respondent proved its case against the Appellant.

The Respondent formulated an issue also for the determination of the appeal as follows:


Whether the concurrent finding by the trial Court and the Court below that the prosecution has proved its case against the Appellant beyond reasonable doubt was perverse or not.

Having gone through the records and the evidence therein, this appeal shall be considered on the issue formulated by the learned Counsel to the Appellant.


Whether the Respondent proved its case against the Appellant.

The learned Counsel to the Appellant submitted that by the presumption of the innocence of the Appellant, the burden of proving the guilt of the Appellant is on the prosecution as decided in OSUAGWU V. STATE (2013) 5 NWLR (PT.1347) AT 386. He stated that the prosecution did not prove the ingredients of the offence against the Appellant that he burnt the house of PW1 or any house at all because of the manifest contradictions in the case of the Respondent. He argued that PW1 did not show the house or move the Court to the house he alleged was burnt down. He affirmed also that identification parade was not carried out by the police. He asserted that by the decision in AGBO V. STATE (2006) NWLR (PT.977) AT 555, that the Appellant is entitled to


acquittal because of the material contradictions in the case of the prosecution. He concluded that the decisions of the 2 lower Courts were perverse and not supported by evidence and is calling on this Court to intervene, set aside the decisions and acquit the Appellant.

The Respondent’s learned Counsel on the other hand has submitted that the Appellant’s Counsel has dwelt much on contradictions to demonstrate that the prosecution failed to prove its case especially on the identification of the Appellant. He submitted that the circumstances of identification laid down in OCHIBA V. STATE (2011) PART II SCN) AT 549 cannot be for every case. That the identity of the Appellant was not an issue at the trial Court because PW3 and PW4 knew the Appellant before and mentioned his name to the police, He contended that the house that was burnt down was identified by Exhibits P3a-P3f, P3c3 and P3g respectively. On the proper identity of PW3, he submitted that both PW3 and PW4 gave the name of PW3 to be Abdullahi Jimoh. He stated that this was not made an issue at the trial Court. On failure to present PW3 for further cross examination, he submitted that failure to

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produce death certificate does not make the assertion of death untrue and that by the decision in OMINI V. ENO (2009) LPELR-8727, the Court is at liberty if a witness cannot be recalled for reasons of death to admit or not the evidence already given by him. He settled that it is not every contradiction that upsets a judgment as stated in JIMMY V. STATE (2013) 4 SCNJ PT.1 AT 15. He prayed this Court to affirm the concurrent decisions of the trial and lower Courts.

For the charge of mischief by fire, the prosecution must prove that the accused committed the mischief, the mischief was committed by fire or an explosive substance and the mischief destroyed and damaged a building or property, which must be a place of worship, human dwelling or a place for the custody of property. See Section 337 of the Penal Code.

By the evidence, the Appellant was the accused person suspected to have committed the mischief by fire. Nevertheless, the Appellant’s learned Counsel has contended that the Respondent failed to fix the appellant to the commission of the crime since their evidence was full of contradictions and that identification parade was not carried out


by the police.

In the instant appeal, PW3 at page 66 of the record testified thus against the Appellant, who was the 2nd accused person herein:

“I know the 2nd accused person… in May, 2009, the 2nd accused led some people and being in front of them. They carried tyres and gerycan with petrol and they were all shouting that if anybody who was in the house, they should come out because they don’t want to kill. As they were shouting, I carried my junior called Abdul Kareem and we ran out. The 2nd accused person was the one who held the fuel. They sprayed the petrol on the house with the tyres. They were very many. All my father’s wealth were burnt. The properties that were burnt are Television, shelf, Foam…Among the crowd I know few of them. I know Abdala, Obudu and Pele. These are the few people I know.”

Under cross examination at page 67, he clarified that:

“I never said the two accused persons were involved. I have only said it was the 2nd accused I saw.”

PW4 in his turn gave evidence thus at page 69 of the record:

“…I left Zariagi to Lokoja because the 2nd accused person came with his people to burn my father’s house and


that was why I left Zariagi. I only know then 2nd accused person. I was in the house with my brother, he started shouting anybody in the house should leave the house because he wanted to burn the house. My brother now held me and we stayed aside watching him. The name of my brother is Obayin. The 2nd accused person threw petrol and tyres into the house, and the house caught fire. I only saw the 2nd accused person and one Pele. They spoilt the properties in the house. After they left; my brother and myself came out of the bush and we saw the house burnt even some places started breaking…”

Under cross examination, he explained at page 70 that:

“In my statement, I did not describe the dress the 2nd accused person was wearing on the day of incident. Jimoh is my father. I have a brother called Obayin Abdullahi.”

In SEGUN BALOGUN V. THE ATTORNEY GENERAL OF OGUN STATE (2002) 2 SC (PT. 11) 89, the Supreme Court held, per Uwaifo J.S.C, that “Such a parade is absolutely unnecessary when the witness claims to have seen a familiar or definite person whom he perhaps names or knows his abode or family connection. In such a situation, it is the credibility

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of the witness that will be open to be tested at the appropriate time rather than the staging of a farcical identification parade for a person whose mind has been firmly fixed upon a particular suspect.” In OLAYINKA AFOLALU V. THE STATE (2010) 16 NWLR (PT 1220) 584, the Supreme Court, per Adekeye, JSC, held that identification parade is “only essential in the following circumstances: 1. where the victim did not know the accused before and his first acquaintance with him was during the commission of the offence. 2. where the victim or witness was confronted by the offender for a very short-time and 3. where the victim due to time and circumstances might not have had the full opportunity of observing the features of the accused.” In NDUKWE V. THE STATE (2009) 7 NWLR (PT 1139) 43, the Supreme Court, per Ogbuagu JSC, held that “an identification parade is not necessary, in circumstances where the victim or witness, recognized the offender or accused person, while matter was still fresh in his/her mind, as the person who committed the crime alleged.” The same Court had held in EYISI V. STATE (2000) 15 NWLR (PT 691) 555 that “where, for instance,


the accused person is well known to the witness before the day of the commission of the offence alleged, there can be no need for an identification parade.” In OCHIBA V. THE STATE (2011) LPELR 8245 the Supreme Court not only reiterated that an identification parade is unnecessary where the witness has knowledge of the accused person, it also held that recognition in most instances is more reliable than identification parade and if believed can be relied on to convict.” See also Per PETER-ODILI, JSC in AWOSIKA V. STATE (2018) LPELR-44351(SC).

The lower Court after due consideration and analysis variously held at page 283 of the record that “all the ingredients of Section 337 were proved especially by the evidence of PWs 3 and 4 which also corroborated each other” At page 284, the lower Court held that “what matters, in the considered opinion of this Court is that the appellant was indeed seen amongst the people who burnt the house…” At page 285, it held that “the appellant’s identification as part of a larger group simply means he is participis crimis.”

The other ingredients of the offence the Appellant was charged with are that the mischief


was committed by fire or an explosive substance and the mischief destroyed and damaged a building or property, which must be place of worship, human dwelling or a place for the custody of property.

Divulged in the corroborated evidence of PW 3 and 4 are that the Appellant with the other accomplices used petrol and tyres which fitly qualify as fire or explosive substance used to commit the mischief. The PW 3 and 4 equally described the house burnt as where they were dwelling and had to run out to hide in the nearby bush for refuge, which house was burnt down by the fire. The evidence of the house being burnt down is contained at pages 171-178 evidenced vide Exhibits P3a-P3f, P3c3 and P3g.

The argument of moving the Court to inspect the burnt house is inconsequential in this matter. The lower Court at page 287 held as follows:

“…the records show at page 72 that the photographs of the burnt houses were tendered and admitted without objection from the defence. The law is that where a document is not inadmissible per se but its admissibility is subject to the conditions that had not been fulfilled when it was tendered, its admission in evidence


without objection constitutes a waiver of the unfulfilled conditions.”

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By Section 121 of the Evidence Act, 2011 (as amended), a fact is said to be “proved” when, after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought, in the circumstances of the particular case, to act upon the supposition that it does exist. Both the trial and lower Court considered Exhibit As to have proved that the house of the victim was burnt down by the Appellant.

The Appellant has equally made the failure to recall PW3 an issue. Based on the records before me, PW3 gave evidence in chief and was duly cross examined by the Appellant’s learned Counsel. See pages 66-67 of the records. I wonder why his recall now seems to be like an elixir and panacea to their case even when it has been shown that he has passed on. The lower Court in the same vein observed on PW3 at page 286 that “if he was unavailable by reason of death, then his earlier testimony cannot as a result be invalidated.” It is trite that the Court is at liberty if a witness cannot be recalled for reason of death, to use


its discretion under Section 239 (1) of the Criminal Procedure Code to admit or not to admit the evidence already given by that witness.

I must state clearly here that even if the evidence of PW3 is discretionarily not used, the evidence of PW4 has not been knocked off and can suffice to still be used potently against the Appellant to convict him since the evidence of one eyewitness can safely convict if found to be true and credible. Once the prosecution was able to discharge its burden of proof of the offence charged, the Court of trial can convict the accused even on evidence of a single witness. As a matter of fact, a single witness who gives cogent eye witness account of the incident, as in this instant case, will be sufficient. See Per SANUSI, JSC in CHIDOZIE V. C.O.P (2018) LPELR-43602(SC).

The Appellant’s contention that the Respondent’s case is fraught and infested with contradictions to work in favour of the Appellant cannot hold water. The law is settled that it is not every contradiction in the prosecution’s case that will raise a doubt, the benefit of which ought to be resolved in favour of the accused. It is only


contradictions that are substantial and fundamental to the main issue in question that would be fatal to the prosecution’s case. For a contradiction to be material, it must not only relate to a material fact, it must in addition lead to a miscarriage of justice. See Per KEKERE-EKUN, JSC in AHMED V. NIGERIAN ARMY (2016) LPELR-40826(SC).

The ingredients of the offence with which the Appellant was charged with have been proved against him beyond reasonable doubt. I have ransacked for any loose ends to this case to favour the Appellant but have not seen any. His fate is unfortunately determined. This issue is against the Appellant and I hereby affirm the concurrent decisions of both the trial and lower Courts since no perversity has been spotted out.

Appeal dismissed.


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