Oluwole Akindipe V. The State (2008)

LawGlobal-Hub Lead Judgment Report

MUSA DATTIJO MUHAMMAD, J.C.A.

This is an appeal against the judgment of the State High Court, presided by Hon. Justice J. U. Ogunbuyi, delivered on the 25th day of July 1979. The Appellant and two others were arrested and charged on a four count information. Three of the counts were for demanding money with menaces contrary to and punishable under Section 346 of the Criminal Code Cap 28 Vol.1 Laws of Western Nigeria 1959 and the fourth count being for stealing contrary to Section 224 and punishable under Section 331 (8) of the same code. At the end of the prosecution’s case and following the no case submissions made by Counsel on behalf of all the accused persons, the 3rd accused person was discharged and acquitted on all the four counts while the prosecution having established a prima facie case in respect of the 1st and 3rd counts against the 1st and 2nd Accused persons, the duo were ordered to put in their defences in respect of the two counts.

The Appellant gave evidence in his own defence. He also called one witness. 2nd accused also gave evidence on his own behalf. Nobody testified for the 2nd accused. At the end of the trial, the 1st accused person, Oluwole Akindipe was convicted and sentenced on the two counts, The trial court on the other hand discharged and acquitted the 2nd accused. 1st accused was dissatisfied with the judgment and has appealed to this court on a notice of appeal which contains six grounds.

Parties have filed and exchanged their briefs which at the hearing of this appeal they adopted and relied upon as their arguments for or against the appeal.

The Appellant’s brief at paragraphs 4.01 to 4.04 contains three issues distilled from the grounds in the Appellant’s notice of appeal as having arisen for the determination of the appeal. The three issues read as follows:-

1. Whether the learned trial Judge, in considering the No Case submission made by the Defence Counsel, applied this Law correctly. (Ground 1);
2. Whether the evidence of the defence witnesses were properly evaluated and if not whether a miscarriage was occasioned to the Appellant. (Grounds 2 and 3).

3 Whether the prosecution in this case discharged the onus placed on it by law and if not, whether the Appellant ought to have been discharged and acquitted in the circumstances (Grounds 4, 5 and 6).

The Respondents brief contains two issues for the determination of the appeal thus:-

1. Whether the learned trial Judge was right in dismissing the no case submission made by the Appellant;
2. Whether, on the evidence led, the trial court was right in its conclusion that the Appellant was guilty of the offence of demanding money with intent to steal as charged.

Appellant’s first issue on the correctness of the lower court’s decision on the no-case submission entered by counsel on Appellant’s behalf has a seemingly insurmountable problem. The ruling in respect of the submission was an interlocutory one having preceded the final decision instantly being appealed against. The ground of appeal on such a decision required the leave of either the lower court or this court before same would be validly filed and entertained by this court. An examination of the record of appeal shows clearly that Appellant had not, prior to filing the ground of appeal wherefrom Appellant’s first issue for determination was distilled obtained the leave of either this court or the lower court. The grounds of appeal as well as the issue distilled from the grounds are incompetent and unarguable. The two are hereby struck out.

This leaves us with Appellants’ 2nd and 3rd issues for determination. The 3rd Issue appears to subsume Appellants’ 2nd issue. Respondent’s issue No 2 is similar to Appellants’ 3rd issue but much more appropriate. It embodies the real issue yearning for determination in the appeal. Respondent’s 2nd issue, therefore, shall provide the basis of determining the appeal.

In arguing the issue in the Appellant’s brief, learned Counsel submits that the lower court had the duty of evaluating the evidence before it and ensuring that the prosecution had proved its case beyond reasonable doubt before returning a verdict of guilt against the accused. Where however doubt exists either as a result of material contradictions or insufficiency of evidence in the prosecutions’ case, the doubt must be resolved in favour of the accused. Counsel relies on the case of Ibeh Vs. State (1997) 1 NWLR (Pt. 484) 632 at 650 and further contends that the trial court’s evaluation of the evidence led must be wholistic.

Learned Appellant Counsel argues that the trial court had failed in its task of properly evaluating the evidence led by the prosecution. The testimonies of Pw I, Pw III and Pw IV on whether or not Appellant had collected the money were materially contradictory. He referred to the testimony of Pw1 at page 23 of the record and that of Pw IV at page 32 in this regard. Furthermore, the testimonies of the Appellant to the effect that the arrest and detention of Pw I was at the instance of Major Onyekweli, Appellant’s superior. Proper evaluation of this evidence would have resulted in the discharge and acquittal of the Appellant. Because of the material contradictions in the evidence of prosecution witnesses the case against the Appellant had not been proved beyond reasonable doubt. The lower court’s decision finding the Appellant guilty had occasioned a miscarriage of justice and should, on the authority of Nwangwu Vs. State (1997) 8 NWLR (Pt. 517) 457; Joshua Vs. Queen (1964) 1 All NLR I and Amadi Vs. State (1993) 3 NWLR (Pt. 314) 644, be set aside.

In further contention, learned Appellant Counsel submits that PwI and Pw III had a purpose to serve. Their evidence should have been corroborated to entitle the trial court rely and convict the Appellant on it. On the authority of Ali Vs. State (1992) 10 SC 87; State Vs. Okolo (1974) 2 SC 73 and Mbenu Vs. State (1988) 3 NWLR (Pt. 84) 615 learned Appellant Counsel argues, Appellant’s conviction that was wrongly anchored on such illegal evidence cannot persist. He urges that the issue be resolved in Appellants favour and the Appeal allowed.

Responding, learned Respondent’s Counsel defends the trial court’s judgment.

The court’s conclusion on Appellant’s guilt of the offence of demanding money with menaces with intent to steal is right. Counsel concedes that by virtue of Section 138 (I) of the Evidence Act the prosecution must prove its case beyond all reasonable doubts. He cites the decision in Bolanle v. State (2005) 1 NCC 342 at 359 in support. Counsel further concedes that the trial court must, before convicting an accused, consider the totality of the evidence before it to determining whether or not the prosecution had discharged its burden. Learned Counsel argues that the trial court had carefully evaluated the evidence led and arrived at the correct decision. The court’s decision cannot be set aside on the basis of the wrong submissions of Appellant’s Counsel. In specific terms, learned respondent’s counsel referred to the testimonies of the prosecution witnesses at pages 55-59, that of the Appellant and the witness who testified for him at pages 59-60 and submits that the courts detailed consideration of these testimonies at pages 62-67 of the record was dutifully done. Before the court convicted the Appellant, it is argued, the court had provided reasons why it rejected the Appellants version in preference to the prosecution story. This disentitles the Appellate Court from interfering. Learned Counsel cited and relied on Egwim v. State (1999) 13 NWLR (Pt.635)338 at 350.