N.o. Okere V. The State(2000)
LawGlobal-Hub Lead Judgment Report
MUKHTAR, J.C.A.
The charge preferred against the appellant/accused in the High Court of Oyo State holden at Oyo is of three counts. It will be reproduced hereinunder. It reads:-
Count I
Statement of Offence
Extortion by a public officer contrary to and punishable under section 99 of the Criminal Code, Cap 30 Vol. II, Laws of Oyo State of Nigeria, 1978.
Particulars of Offence
M.O. Okere (M) during the month of February, 1988 at Oyo in the Oyo Judicial Division, being employed in the public service of Oyo State, to wit Senior Officer, and being charged with a duty by virtue of such employment to wit the duty of rendering legal opinion to the Police on the advisability of prosecuting a criminal offender or otherwise did in the discharge of the duties of your office accept from Alhaji Jimoh Adedokun fifteen (15) tubers of yam and a gallon of vegetable oil valued at forty-five (N45) naira with a view to advising the Police to prosecute one Kamoru Poopola for an offence of causing death by dangerous driving, a reward beyond your proper pay and emolument.
Count II
Statement of Offence
Extortion by a public officer contrary to and punishable under section 99 the Criminal Code, Cap. 30 Vol. II, Laws of Oyo State of Nigeria, 1978.
Particulars of Offence
M.O. Okere(M) on or about the 6th day of February, 1988 at Ibadan, in the Ibadan Judicial Division, being a person employed in the public service of Oyo State, to wit Senior Officer, and being charged with a duty by virtue of such employment to with the duty of rendering legal opinion to the police on the advisability of prosecuting a criminal offender otherwise did in the discharge of the duties of your office accept from Alhaji Jimoh Adedokun two (2) Michelin Tyres valued at four hundred naira (400.00) with a view to advising the police to prosecute one Kamoru Popoola for an offence of causing the death by dangerous driving beyond your proper pay and emolument.
Count III
Statement of Offence
Extortion by a public officer contrary to and punishable under section 99 of the Criminal Code, Cap. 30 Vol. II, Laws of Oyo State of Nigeria, 1978.
Particulars of Offence
M.O. Okere (M) on or about the 10th day of February, 1988 at Oyo in the Oyo Judicial Division, being a person employed in the public service of Oyo State, to wit Senior Legal Officer, and being charged with the duty by virtue of such employment, to wit the duty of rendering legal opinion to the police on the advisability of prosecuting a criminal offender or otherwise, did in the discharge of the duties of your office accept from Alhaji Jimoh Adedokun a sum of five hundred naira (N500.00) with a view to advising the Police to prosecute one Kamoru Poopola for an offence of causing death by dangerous driving, a reward beyond your proper pay and emolument”
On 1st of August, 1991 the charge was read to the appellant, and he pleaded not guilty to each of the three courts. Count I was amended vide the order of the court of 19/2/92 on the application, Mr. Olujimi of Counsel for the appellant who made a no case submission of which the learned trial Judge in a ruling delivered on 25/3/92 overruled concluding thus:-
“From the totality of evidence adduced by the prosecution, I have come to the conclusion that a prima facie case has been made out against the accused and this would warrant his defence”.
The defence opened their case whereby the appellant testified. Both Counsels addressed the court, which the learned trial Judge considered in his judgment, and also evaluated the evidence adduced by both sides. At the end of the day the appellant was found guilty as charged on the three counts and convicted accordingly. Dissatisfied with the judgment he appealed to this court originally on two grounds of appeal contained in the original notice of appeal, which was later amended by the order of this court. By the amendment the grounds increased to seven.
As is the practice in this court Counsel exchanged briefs of argument, which were adopted at the hearing of the appeal. Four issues for determination were formulated in the appellant’s brief of argument I will adopt the issues in the appellant’s brief of argument for the treatment of this appeal, commencing with issue No. 1 which reads:
Whether the appellant’s trial and conviction by the learned trial Judge ought to be adjudged null and void by reason of his approach to the treatment of the legal issue of corroboration as contained in his judgment (at page 66 lines 18 to 40 of the record of proceedings.
In arguing this issue, learned counsel for the appellant relied on the cases of R. v. Bekum & Ors. (1941) WACA P. 10, Latifu Saraki v. R (1964) NMLP. 28 and R. v. Adedapo Omisade (1964) 1 All NLR P. 233
“IF ON THE NATURE OF CORROBORATION Evidence in criminal cases. It is a fact that for evidence to be properly admissible as material in corroboration of evidence, such corroboration evidence must be independent testimony in support of the evidence which corroboration is required, and not evidence that contradicts the evidence which corroboration is required. The nature of the evidence that forms corroboration in the instant case will be considered later on in this judgment.
The argument of learned Counsel for the appellant is that the evidence of PW2 and PW4 are that of accomplice, and as such they cannot be used as corroborating that of the complainant who is also an accomplice. The pertinent question to ask here, is, are PW2 and PW4 accomplices? In the case of Davies V.D.P.P (1954) AC 378 at 400, accomplice were defined thus:-
‘On any view, persons who are participes criminis in respect of the actual crime charged, whether as principals or accessories before or after the fact (to felonies) or persons committing, procuring or aiding and abetting (in the case of misdemeanors).
Now, PW2 is the son of the complainant (PW1) who accompanied him to the appellant’s office and house where the demand for the tyres, tubers of yam, vegetable oil and money was made and received by the appellant PW4, the messenger of the appellant assisted in transferring the food items from PW1’s vehicle to the appellant’s vehicle and also accompanied PW1 and 2 to Ogunpa to purchase the tyres that were later fixed into the appellant’s car. In the circumstance of their role, (a) as a son who accompanied his father, or (b) as a messenger of the appellant who was bound to carry out his officer’s order, my view is that they cannot be described as accomplices.
The following cases were relied upon by learned counsel for the respondent R. v. Okereke Anyaleme & Ors (1943) 9 WACA 23, Naparo Braima Al-Hassan v. Commissioner of Police (1944) 10 WACA 239 and Okeke v. Commissioner of Police 12 WACA 363. On the other hand, in distinguishing the above cases learned counsel referred to the cases of Queen v. Ezechi (1962) 1 SCNLR 192 (1962) 1 All NLR 113, R. V. John Oluwole George 4 NLR 5, and Osidola v. Commissioner of Police (1958) NLR 42. In determining whether PW’s 1, 2 and 4 are accomplices. I find the case of Queen V. Ezechi (supra) of immense assistance. In the case, Unsworth F. J. drew a distinction between an accomplice and who can be described as a victim. In his Lordship’s words:-
“Now were the complainant and his witness in the present case participles criminils in the offence of obtaining bribe? We have no doubt that they were. It was intimated to the complainant that he would be able to obtain a stall if he made a payment of 30pounds”. The complainant then went away and discussed the matter with his friend. The two of them then sought out the accused and offered him the bribe, which was accepted. It is apparent that the complainant and his friend voluntarily acceded to the request for money in order to obtain preference or preferment which might otherwise not have been open to the complainant, and in such circumstances they cannot be regarded as victims”.
I am fortified by the above logic, and would say it does not apply to the circumstance and situation of the present case on hand. It is to be noted, that the complainant went all the way to Oyo to see the appellant, in a bid to ensure that justice is done in the case of the accident involving his son, and in which the son died. In other words, I am inclined to believe that PW1 was a victim in the surrounding circumstances of the case.
A careful study of the following pieces of evidence is illustrative of this belief. PW1 when he was cross examined said inter alia-
“I remember the 6th of February, 1988. That day, I went to Ogbomosho, M.T.D. where I was told that the case involving the Driver has been withdrawn from the court. I came to the accused and he confirmed it”.
The above piece of evidence against the backdrop of the evidence of his son PW2 under cross-examination confirms the circumstances under which the tyres and money were given and received by the appellant PW2’s evidence on page 24 of the printed record of proceeding read:
The tyres were given on 6th February, 1988 and on the following week he was given N500.00″.
The above clearly show that PW1 and 2 deliberately set out for Oyo to pursue the course of justice, and where appellant most likely made the demands for the items. As for PW2 and 4, they very much knew what was going on or they had an insight, for PW2 knew the purpose of their visits to the appellant, PW4’s mission of accompanying PW1 to purchase the tyres were on the order of the appellant under whom he was a messenger, and had no choice but to adhere to his authority, rather than undermine it. After all, as a messenger in the appellant’s office, he was bound to carry out his instructions.
It is on record that the learned trial Judge on treating the evidence of P.W.1, P.W.2 and P.W.4, in his judgment on page 66 of the printed record of proceedings had this to say:-
“On whether PW1, PW2 and PW4 should be treated as accomplices. From the evidence, P.W.1 is the father of the victim of the accident. And PW2 is another son of the complainant, PW1. The agony of the complainant in view of the circumstances of the death of the son should be appreciated. As he said on oath before me, he only wanted justice done to the offender. His act for seeing it realised cannot be regarded as wilful. So also P.W.2 who was only giving the father his moral support. The role of P.W.4 who was a messenger to the accused in the zonal office at Oyo was entirely different. He was a stout witness who remained unshakable and unruflled under the barrage of cross-examination. In my view, these witnesses cannot be treated as accomplices”.
It may well be that the complainant PW1 was anxious to see justice done in respect of the driver that drove the vehicle involved in his deceased son’s death. In any case, they are not per se without more, incompetent witnesses, for S. 178 of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990, stipulates thus:-
“178(1) An accomplice shall be a competent witness against an accused person, and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.
Provided that in cases tried with a jury when the only proof against a persons charged with a criminal offence is the evidence of an accomplice, uncorroborated in any material particular implicating the accused, the Judge shall warn the jury that it is unsafe to convict any person upon such evidence, though they have a legal right to do so and in all other cases the court shall so direct itself”.
There is no doubt that the learned trial Judge was mindful of the above provision and in fact focused his attention to it, for in his judgment he said:-
“As to corroboration of the evidence of P.W.1 and P.W.2, I agree that in view of the relationship of P.W.2 and P.W.1. Their evidence might need caution and corroboration. But this has been adequately provided on all material points by the evidence of P.W.4”
I would say the evidence of P.W 4 is an independent one, to qualify as corroborating the evidence of P.W.1 and 2’s view of his direct and cogent evidence. In the case of Omisade and Ors v. The Queen (supra), the Supreme Court succinctly put the extent and nature of corroboration required for the evidence of an accomplice thus:-
“The position, to our mind, is this the Judge must ask himself whether or not he believes the evidence of the accomplice and, if he believes the evidence, then he must warn himself that it is unsafe to convict on it alone: he then looks for some additional evidence (not that of another accomplice) rendering it probable that the story of the accomplice is true and that it is safe to act upon it- R. v. Baskerville (1916) 2 K.B 658 at p. 665.
(Italics mine)
I am satisfied that PW4 cannot be described as another accomplice, and having expressed this view I would say that the evidence of PW.4 did serve as corroborating the evidence of PW1 and 2. In the circumstance, it is clear that the conviction of the appellant by the learned trial Judge was not based only on the evidence of accomplices, and this has not occasioned a miscarriage of justice. See Bello v. The State (1966) 1 All NLR 223. In the light of the above discussion, the answer to this issue is in the negative, and so ground of appeal No. (2) to which it is married fails, and it is dismissed.
The next issue for determination is whether the issue of inconsistencies or conflicts of material contradictions in PW1, PW2, PW4 and PW5 previously written statements before trial and their oral evidence at the trial were legally considered by the learned trial Judge before finding the appellant guilty thereby convicting him. The crux of the appellant’s argument under this issue is that the inconsistencies and contradictions in the evidence before the court were so grave that they should have been properly considered by the learned trial Judge. There were many contradictions and conflicts in the evidence of PW1, PW2, PW4 and PW5 in their previous statement and their oral evidence in court. Learned Counsel for the appellant has stated instances in his brief of argument where such conflicts and consistencies existed. Such instances can be found in PW1’s petition Exh. A and oral evidence in court. It is a fact that in his first petition dated 19th September, 1989, PW1 did not mention the tubers of yam and vegetable oil which he mentioned in his oral evidence. But then he mentioned it in his reminder to Exh. A (Exh. B) which was written a month after. It is not surprising that he remembered this in Exh. B having not received any reply on Exh. A, I believe he decided to divulge everything in Exh. B. It is not as though he left the aspect of the yams and vegetable oil until he gave oral evidence in court. This, to my mind was neither contradiction nor inconsistency. On the evidence of Mr. Aderibigbe, I fail to see that inconsistency is of material consequences. I cannot also see any material contradiction in PW1’s statements to the Police, in Exh. C and Exh. A that will warrant the discrediting of PW1’s evidence as being unreliable. The evidence of the demand for N1,000 and the giving and taking of N500 which is also described as a contradiction is to my mind no discrepancy, because the most important thing is that the giving and receipt of N500 ran through Exhibits, A, B and C. The fact that he did not mention the demand of N1,000 in Exhibit A, B and C, but only when he testified in court does not in my opinion amount to any contradiction, because even in his testimony in court he was consistent on the amount of money he gave to the appellant i.e. N500. Learned Counsel for the appellant after overflogging what he regarded as contradictions and inconsistencies in his brief of argument made the submission that where a witness had made a statement before trial which is inconsistent with the evidence he gives in court, the court would not regard such evidence as unreliable unless such witness gives cogent reasons for his inconsistencies. He placed reliance on the cases of Raphael Nwabueze & ors v. The State 1 All NLR 1, (1988) 4 NWLR (Pt. 86) 16. Learned counsel for the respondent has however submitted that it is only contradictions or inconsistencies that are material that can vitiate a case, and that the contradictions highlighted above are not substantial enough to create doubts in the case of the prosecution.
He placed reliance on the cases of State v. Nnolim (1994) 5 NWLR (Pt.345) 394; Opayemi v. State 1985 2 NWLR (Pt. 5) page 101, Enahoro v. The Queen (1965) NMLR, 265 and Ogoala v. The State 1991 2 NWLR (Pt. 175) page 509.
Indeed, going through the evidence of the prosecution witnesses I found no substantial or material contradictions or inconsistencies in their evidence as such. The only one I have found is that of a Mr. Aderibigbe given by PW1, and as I have said earlier on the inconsistency is neither material not of any consequence to have affected the case of the prosecution or its merit. In fact, most of what was referred to as contradictions are mere flimsy omissions that can be attributed to simple human frailties. I mean human beings are prone to forget certain minute details within a span of time and if there are minor inconsistencies that amount to discrepancies, such discrepancies cannot be held against them. That the appellant talked about meeting some one and later said he did not know that person, when that fact neither adds nor reduce the strength of the case of the prosecution, it will not destroy the case. In short the contradiction identified in this case is, as far as I can see irrelevant to the main issue and therefore cannot affect its merit, for it is like making mountain out of a mole hill. See Peters v. The State 1992 9 NWLR (Pt. 265) p. 323, Ukut v. State (1960) SCNLR 441, Okonkwo v. C.C.B. (Nig) Plc, (1997) 6NWLR (Pt. 507) p. 48. In addition, I would like to reproduce the concept of contradiction as stated by Mohammed J.C.A. in the case of State v. Danjummai 1996 8 (Pt. 469) p. 660 at p. 669 where he said:-
“Contradiction in its ordinary sense, simply connotes absence of agreement between statements of facts in a given situation. A contradiction is regarded material when a piece of evidence affirms the opposite of what the other evidence stated not when there is just a minor discrepancy in matters of details. To make it material also, the contradictions must go to the essential of something being, rather than of not being. Minor discrepancy may however depend on a witness astuteness and capacity for observing meticulous details”.
In this vein, I am satisfied that the learned trial Judge did not err nor misdirect himself when in his judgment he said:-
“In the final analysis, it is my considered view and I hold that the lapses and shortages of details complained of in the prosecution case are minor differences in details depending rather on person’s capacity for observing meticulous details. They do not and should not affect the credibility of prosecution witnesses”.
The answer to this issue is in the affirmative, and the grounds of appeal Nos. 3 and 4 to which the issue is married fail and are hereby dismissed.
Issue No. (3) is whether on the totality of the evidence adduced before the lower court and on a proper evaluation of such evidence, the prosecution had sufficiently proved its case beyond reasonable doubt as required by law. Under this issue the learned counsel for the appellant has argued that the learned trial Judge failed to consider the case of the appellant and this was treated under three heads, namely evidence of PW1, PW2, and PW5. On the evidence of PW1, learned Counsel is capitalising on the fact that PW1 testified that it was his children that wrote the petition and the evidence that he obtained receipt for the tyres, which was not tendered in court. I cannot fathom why the appellant is making an issue out of this. Surely, if he was not literate he cannot and could not have written the petition himself, and so his children wrote it and he signed. Even if he was literate and could not have written it himself, the fact that his children wrote it for him does not detract from the fact that he caused it to be written, and as long as it was signed by him it can be regarded as his petition. So, the fact the he said his children wrote the petition is non-issue and does not in fact affect the case, and the same goes for the argument on the evidence of the receipt of the tyres, for there were other ample evidence in support of the fact that PW1 gave tyres to the appellant. On the evidence of PW2, I don’t see any need to further discuss the petition and its author. The fact that it is in evidence and it buttressed some facts that needed to be proved suffices for the purpose of this argument. That it was the petition that led to the investigation that resulted in the prosecution of the appellant is not in doubt, and the content of the petition has also been proved by oral evidence, it was not necessary to call anybody else to give testimony on the petition for the evidence on it was already adequate. At any rate the prosecution is not bound to call a host of witnesses to prove its case. Once the necessary witnesses who will give the necessary and relevant evidence have been called and they have so testified it will suffice for the case of the prosecution and will sustain the counts in the charge. See R. v. Adebanjo (1935) 2 WACA 315, and Opayemi v. State (1985) NWLR (Pt. 5) page 101 cited in the respondent’s brief of argument. Adio J.C.A. (of blessed memory) in the case of Fred Dapere Gira v. The State (1996) 4 NWLR (Pt. 443) page 375 on the number of witnesses to prove a criminal case said:-
“…the credibility of evidence does not ordinarily depend on the number of witnesses that testify on a particular point. The crucial question is whether the evidence of one credible witness, on a particular point, it believed and accepted. If the answer is in the affirmative, then its is sufficient to justify a conviction. See Ali v. The State (1988) 1 NWLR (Pt. 68) 1”. See also Okonfua v. State 1981 6-7 SC 1, and Saidu v. The State 1982 4 SC 41 On the evidence of PW3, the points raised in the appellant’s brief of argument, on the content of Exh. C and the rationale of calling PW3 when his statement hadn’t been recorded are of no value to their appeal. These anomalies (assuming they are, even though I don’t agree) pointed out by the appellant were not capable of casting any doubt in the mind of the learned trial Judge, for as I have said earlier on there were other credible, material and satisfactory evidence adduced that have helped in proving the case of the prosecution beyond reasonable doubt. In the circumstance no miscarriage of justice has been occasioned, and the cases of Ogunleye v. The State (1991), 3 NWLR 177 1, and Udoh v. The State (1994) 2 NWLR (Pt. 329) 666 relied upon by learned counsel for the appellant are of no relevance. Proof beyond reasonable doubt as posited by Ogwuegbu J.S.C. in the case of Alkalezi v. State (1993) 2 NWLR (Pt. 273) 1 is as follows:-
“Proof beyond reasonable doubt is not attained by the number of witnesses fielded by the prosecution. It depends on the quality of the evidence tendered by the prosecution. In a case of Miller v. Minister of Pensions (1947) 2 All ER 372, it was held that proof beyond reasonable doubt does not mean proof beyond all shadow of doubt and if the evidence is strong against a man, as to leave only a remote probability in his favour, which can be dismissed with sentence: ‘of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt’.”
I have no doubt in my mind, that the prosecution adduced more than enough credible evidence to prove the case against the appellant. Then there is the point of the consideration of the defence opened to the appellant. Learned Counsel for the appellant frowned on the enquiry conducted in the Ministry of Justice in respect of the petition – Exh. ‘A’ learned counsel has argued that with the abolition of preliminary investigation into criminal cases in Oyo State the enquiry shouldn’t have been conducted. It is a fact that preliminary inquiry has been abolished by virtue of A.2 of the Criminal Justice Edict, No.8 1977. This provision states:-
“2. Notwithstanding the provisions of the Criminal Procedure Ordinary or of any other law or enactment, preliminary enquiry by a Magistrate into indictable offences is hereby abolished throughout Oyo State of Nigeria and accordingly the provisions of the Criminal Procedure Ordinance relating thereto shall no longer apply”.
There is no doubt that preliminary inquiry on a criminal offence by a Magistrate has been abolished but, it is to be noted that what the provision is referring to, is investigation before a Magistrate, and not an ordinary administrative investigation, as was in the instant case. With due respect, it seems appellant learned counsel is either confusing an administrative enquiry with a proper Criminal Preliminary Investigation, in this postulation, or that there is a deliberate set of mischief in the argument. No law forbids the setting up and conduct of an internal investigation as has been done in this case, by any organisation. It was a way of examining and testing the veracity of the petition before any serious step of calling in the Police for proper investigation is taken. The fact that the enquiry was not one envisaged by S.2 of the Criminal Justice Edict, (supra), and S. 311 of the Criminal Procedure Law which I will reproduce below) is illustrated by the following evidence of the appellant himself in the lower court.
“There were two panels one was headed by Mr. Awosusi and the other panel was headed by Mr Adeniji”.
Then under cross examination:-
“I do not know all the terms of reference of Adeniji Panel of Enquiry. I was invited to appeal before it in writing. I did not give evidence before Adeniji panel. I am aware of Awosusi Panel. I gave evidence before the Panel”.
Going back to S.311 of the Criminal Procedure Act, Cap. 80 Laws of the Federation of Nigeria, 1990, which I said will reproduce. It states: ”311 (1) It shall be the duty of a Magistrate holding a preliminary Inquiry”
The above provision presupposes that only a Magistrate will conduct such an Inquiry, and if such an Inquiry is to be called a preliminary Inquiry for the purpose of the above provision it shall be one by a Magistrate. There is nothing in the evidence of the appellant to show that Mr. Adeniyi and Mr. Awosusi were Magistrates. It has also been contended in the appellant’s brief of argument that the prosecution violated S. 340 (2) (b) of the Criminal Procedure Law (supra) as amended by Criminal Procedure (Amended) No.2 Edict 1984. This section states-
“Subject as hereinafter provided no information charging any person with an indictable offence shall be preferred unless:-
(a) ……………
(b) the information is preferred by the direction or with the consent of a Judge”.
It is on record that consent of Judge was sought as can be seen on page (1) of the record of proceedings. The application dated 5th March, (1991) reads as follows:-
“I am respectfully making an application under section 340(2) (b) of the Criminal Procedure Law, Cap. 31, Laws of Oyo State of Nigeria, 1978 as amended by Criminal Procedure Amendment No.2 Edict 1984 for your consent to prefer an information against the above named defendant for the offence disclosed in the said information… a copy of which is attached herewith”
Even though the consent is no where to be found in the record of proceedings… that the consent was sought is not in doubt and it is presumed that it was given, otherwise the case would not have taken off. I therefore agree that there was no violation of the above provision.
Another grouse of the appellant under this issue is that the prosecution did not prove that the appellant was a public officer, being an ingredient of the offence he was charged with. Of course, the prosecution proved that the was a public officer, as it is illustrated in the following pieces of evidence:-
PW4:-
“I am a messenger in the Ministry of Justice, Ibadan. I was appointed in 1980. In January and February, 1988, I was posted to Oyo Zonal Office – D.P.P’s section. I know the accused very well. He was in charge of the zonal office when I was at Oyo”.
PW3:
“I know the accused person. He was the Senior Legal Officer in charge of Oyo Zone of the Public Prosecution Division of the Ministry of Justice, Oyo State in Ibadan. His duties included offering legal advice to the Police in criminal matters and prosecution of crime in the courts”.
These witnesses were not cross-examined on the above evidence, so it can be assumed that the evidence were not challenged. It is trite that evidence that is neither attacked nor debunked, and which is relevant to the matter in controversy can be admitted and accepted as the truth and credible evidence by a court. A Judge is therefore at liberty to treat the evidence as good and credible evidence. See Habib Nigeria Bank Ltd. v Fathudoude Syed Koya (1992) 7 NWLR (Pt. 251) 43; Odiba v Azege (1991) 7 NWLR(Pt. 206) 724, and Oyetayo v Mosojo (1997) 10 NWLR (Pt. 526) 627.Then there is the caution statement of the appellant, Exhibit ‘B’ where he gave his occupation as civil servant, and address as Ministry of Justice, Ibadan. In fact, in the body of Exh. H he wrote, “I was transferred from the Ministry of Justice Ibadan to Oyo as Senior State Counsel to work in that office as the officer in-charge.
That is evidence coming from the appellant himself. What other proof, if I may ask, is required, or what does learned counsel require again? Ideally the appellant’s pay slip could have been put in evidence, but the evidence adduced on this aspect of the case was cogent enough and suffice as proof that he was a government employee of the Ministry of Justice, Oyo State. I am satisfied that the prosecution did prove that the appellant was a public officer, and so the learned trial Judge was right when he said inter alia.
“I should say that the evidence of P.W.3 as to the duty of the accused is adequate. Like a public officer, the duty is prescribed by law. In that wise, it does not need to be strictly proved”.
Learned counsel for the appellant would want this court to believe that not citing the prescribed law was a grave omission that should warrant the interference of this court. I don’t think omission should in any way affect the merit of the judgment. At any rate, I will reproduce the provision of the relevant law, which is section 191 of the Constitution of Federal Republic of Nigeria supra. It states:-
191(1) the Attorney General of a state shall have the power-
(a) to institute and undertake criminal proceedings against any person before any court of law in Nigeria…
(2) The powers conferred upon the Attorney General under subsection (1) of this section may be exercised by him in person or through officers of his department.
(italics mine)
By virtue of S.74(1) of the Evidence Act, Cap. 62, Laws of the Federation of Nigeria, 1990, the lower court was entitled to take judicial notice of he above provision of the Constitution.
On the purpose of giving the tyres and money, the prosecution has adduced ample evidence to prove the allegation. These evidence are as follows:-
PW1 under cross-examination:-
“He asked me to supply him with tyres otherwise he would not conduct the case.”
PW2 in his evidence said:-
“The accident was handled by the Ogbomosho M. T. D. on getting back to Ogbomosho with my father the Police said that the matter had been transferred to D.P.P’s Office at Oyo. I met the accused in the office at Oyo with my father. I told the accused all that my father could not remember. The accused said he was going to assist us. On the second occasion, the accused asked my father to buy for him while coming back some tubers of yams and oil. My father bought them and gave them to the accused. Accused asked us to come back in two week’s time. Coming back, the accused asked my father to get him a vehicle or two tyres so that he would be able to do the work. My daddy said that he could not get a vehicle but would get two tyres”.
I find the argument of learned counsel for the appellant, that the items received by the appellant should have been tendered, very ridiculous. It is inconceivable that such argument should be preferred, in view of the perishable nature of the foodstuff and the time lapse between when they were given and received and the time of the trial surely the food item of yams and vegetable oil would have been in somebody’s stomach by then. Then on the tyres, it is on record that PW4 said thus about the tyres:-
“Later, 1st PW departed and I followed the accused to the Petrol Station opposite Alafia Hospital where the two tyres were fixed in front of his vehicle”.
It goes without saying that by the time of the trial the tyres must have visited the vulcaniser’s shed so many times, that they have most probably been worn out and discarded.
As for Exh. ‘E’ the fact that it was not the appellant who signed it did not affect the value or authenticity of the document, for the appellant in his evidence in court confirmed that as the person in charge of the D.P.P’s office, Oyo, he vets legal advice by his subordinate officers and he actually vetted Exh. ‘E’ I will reproduce his evidence here. It reads:-
“I was Principal Legal Officer from January 1988. I was at the Zonal Office, Oyo. It was part of my duties to vet legal advice by subordinate officers. I vetted Exbibit E 1988”
The overall discussions on these, points to only one thing, that is that the learned trial Judge gave the case of the prosecution and the defence the thorough consideration they deserve. By virtue of S.138 of the Evidence Act, Cap. 112, Laws of the Federation of Nigeria, 1990-
“138(1) If the commission of a crime by a party to any proceeding is directly in issue in any proceeding civil or criminal, it must be proved beyond reasonable doubt.
(3) If the prosecution proved the commission of a crime beyond reasonable doubt, the burden of proving the reasonable doubt is shifted on to the accused”.
I am satisfied that the learned trial Judge considered and applied the above provision of the law, because in his judgment he said –
“Summing up the case for the prosecution in view of above, I am satisfied and I accept the evidence of the witnesses for the prosecution. Their evidence is straight forward and I find them to be truthful witnesses. I should say that the evidence by P.W.3 as to the duty of the accused is adequate. Like a Police Officer, the duty of a law officer especially in a Zonal Office is prescribed by law. In that wise, it does not need to be strictly proved. Equally, the defence offered by the accused has been carefully considered and weighed against the prosecution case. But unfortunately, I find it to lack merit and the general denial is very hard to believe. In the result, I reject the defence as unbelievable”.
There was no doubt in the mind of the learned Judge that the prosecution had not proved its case for doubts or lapses did not exist in the case. Conversely, the case of the defence was not satisfactorily convincing to absolve the appellant of the guilt of the offence he was charged with. The cases of Yongo v. COP (1992) 8 NWLR (Pt. 257) 36 and Anikwe v. The State 1976 9-19 S.C. 255 cited in the appellant’s brief are of no assistance to the appellant, in view of the fact that both the case for the prosecution and the defence have been considered most carefully, and I have expressed the view that I am satisfied with the findings, and so the foregoing reasoning will answer the above issue in the affirmative. Grounds of appeal Nos. 1, 2, 3, 4, 5, 6 and 7 to which the issue is related have no merit and are hereby dismissed.
The last issue for determination is whether appellant’s trial and conviction by the learned trial Judge ought to be adjudged null and void by reason of his failure to ensure that the appellant had been properly and validly arraigned for trial before proceeding with the case. The grouse of appellant’s counsel under this issue is that after the arraignment of the appellant on the charge that was struck out, he was arraigned on another charge HOY/IC/91, but when another Judge took over the case the appellant’s plea was not taken.
The fact that the plea was taken before a Judge earlier on does not matter, as once another Judge takes over it is incumbent on him to take the appellant’s plea as though the trial is commencing afresh, as the word ‘denovo’ connotes, Black’s Law Dictionary Fifth Edition defines ‘Denovo Trial’ as, ‘trying a matter anew, the same as if it had not been heard before and as if no decision had been previously considered. I agree that S. 215 of the Criminal Procedure Act supra stipulates as follows:
“215: The person to be tried upon any charge or information shall be placed before the court unfettered unless the court shall see cause otherwise to order, and the charge of information shall be read over and explained to him to the satisfaction of the court by the registrar or other officer of the court, and such person shall be called upon to plead instantly thereto, unless where the person is entitled to service of a copy of the information he objects to the want of such service and the court finds that he has not been duly served therewith”.
In addition S 33(6) (q) of the Constitution of the Federation of Nigeria 1979 states that:
“Every person who is charged with a criminal offence shall be entitled (a) to be informed promptly and in language he understands the details of the nature of the offence”.
The above provisions are mandatory provisions that must be complied with to the letter. They leave no room for manoeuvre and no option for its compliance and application, hence any violation of the provision is not only fatal to the proceedings but may have the effect of the trial being pronounced as null and void. See the cases of Eyorokoroma v. The State (1979) 6-9 SC 3 SC, R v. Zenvinula & 6 ors.(1946) 12 WACA 68, and Kajubo v. The State 1988 1 NWLR(Pt. 73) 721 relied upon by learned counsel for the appellant. See also Ebem (1990) 7 NMLR (Pt. 160) 113, and Sanmabo v. State (1967) NMLR 314. It seems learned counsel for the respondent conceded the above facts, but quickly pointed out to the court that even if the appellant was not arraigned on counts II and III by the learned trial Judge, his plea was taken in respect of count 1 which was amended on the order of the trial Judge. This can be found on page 32 of the printed record of proceedings, and I shall reproduce what transpired hereunder. Before I reproduce the proceeding of the proceeding of the day, the plea was taken I would like to reproduce order of the court. The learned trial Judge in his ruling for amendment of count (1) ruled infer alia thus:
“As a result, the application are granted and the word -‘month of January, 1988’- are deleted in count I of the charge and substituted by the words -month of February 1988- as requested”.
Now, after the above ruling the following transpired:-
“Accused is present.
Mr. A. Olujimi appears for the accused. – with him is Mr. G. O. Oke
Mr. Adepoju appears for the prosecution
Court – in view of the ruling, the amended charge is now read and explained to the accused.
Plea – Accused pleads not guilty to the count. Learned counsel for the prosecution said that after calling five witnesses he has come to the end of the prosecution case.
Mr. A. Olujinmi likes to make a submission of no case
Court – Case is stood down”.
It is therefore as clear as crystal from the above proceedings that the appellant’s plea was taken after the charge was amended, and since the law allows such amendment, the amendment, and the taking of the plea thereafter was in order, minor as the amendment was. That therefore takes care of count (1), as far as the appellant’s grouse and argument is concerned. Learned counsel for the respondent is however of the contention that the lower court having complied with the provision of S. 164 of the Criminal Procedure Act supra the proceeding on count (1) was valid, but that a retrial on the other two counts can be ordered. It may be very difficult to gather the witnesses together, as some of them may have died and the whereabouts of some of them may be unknown to the prosecution. Nevertheless, that may be the only order to be made at the end of the day in the circumstance. This last issue is resolved in favour of the appellant. Its related ground one of appeal succeeds. The appeal succeeds in part. The judgment of the lower court is set aside in this vein, I hereby order a retrial of the whole case in the interest of justice. See Abodundu v. The Queen (1959) 4 FSC 70, (1959) SCNLR 162.
Other Citations: (2000)LCN/0717(CA)