Samuel Chidozie Vs. Commissioner Of Police (2018)

LAWGLOBAL HUB Lead Judgment Report

MARY UKAEGO PETER-ODILI, J.S.C.

The appellant was initially arraigned along with two others before the Chief Magistrate Court, Lokoja for offences of criminal breach of trust, theft, criminal conspiracy and criminal intimidation. Upon his arrest, appellant volunteered an extra judicial statement denying committing the offences contrary to Sections 97(1), 306, 287, 322 and 397 of Penal Code.

The appellant was the 1st accused in the case before the trial Court while the 2nd and 3rd accused persons were Hycent Ndive and Cyril Onah before the trial Court.

FACTS:-

The case of prosecution is that the PW1, Godwin Ojike and the appellant are members of the National Union of Mobile Marketers and Advertisers of Nigeria (NUMMAN). Owing to some disagreements, the PW1 pulled out of the Union. The appellant and the other members of the Union started threatening him and warned him to pack out of Lokoja town or he would be killed. In order to carry out their threats, the appellant along with the other members of the union started sending all kinds of strange visitors to harass him and followed the pw1 to

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monitor his movements and on one of such occasions, two boys armed with guns visited pw1’s house and threatened to kill him.

The prosecution in proof of its case called two witnesses and appellant testified on his own behalf in his defence without calling any witness. At the end of the evidence of the prosecution, a submission of no case to answer was made on behalf of the appellant which the trial Court upheld, discharging the appellant of criminal conspiracy, criminal breach of trust and theft contrary to Sections 97 (1), 312 and 287 of the Penal Code respectively. The appellant was then only charged for the offence of criminal intimidation contrary to Section 397 of the Penal Code.

The trial Court at the end of the hearing convicted the appellant and sentenced him to a fine of N2,000.00 or 12 months imprisonment in case of default for the offence of criminal intimidation. The appellant dissatisfied appealed to the High Court which affirmed what the trial Court did and the appellant aggrieved appealed to the Court of Appeal, Abuja Division to contest the validity of his conviction and sentence but the Court below agreed with the High Court and

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further dissatisfied, the appellant has appealed to the Supreme Court.

On the 26th October, 2017 date of hearing, learned counsel for the appellant, J.A.Akubo Esq, adopted his brief of argument, filed on 10/9/2012 in which he raised two issues for determination which are thus:

1. Whether having regard to the totality of evidence and the surrounding circumstances in this case, the Court of Appeal was right in affirming the decision that the prosecution proved its case beyond reasonable doubt against the appellant and thereby affirmed his conviction and sentence. (Grounds 1, 3 and 4).
2. Whether the police informant (PW1) in this case suffered any injury by the conduct of the appellant (Ground 2).

Ibrahim Sani, Attorney General of Kogi State for the respondent adopted its brief of argument settled by J.A Abrahams Esq. the then Attorney General of Kogi State. The brief was filed on 29th November, 2012 and deemed filed on 9th October, 2013. He identified two issues for determination which are thus:

1. Whether having regard to the totality of the evidence adduced at the trial Court below was right in affirming the conviction and

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sentence of the appellant.

2. Whether the prosecution has to prove physical injury to sustain the charge of criminal intimidation under Section 397 of the Penal Code.

I shall utilise the issues as crafted by the respondent in the determination of this appeal as they are easy to use.

ISSUES 1 & 2

These question the rightness of the decision of the Court of Appeal affirming what the two Courts below did and if physical injury is necessary to sustain the charge of criminal intimidation.

Learned counsel for the appellant submitted that a critical examination of the entire evidence in the record in relation to the statutes and that of the Police informant (PW1) in this case in National Union of Marketers and Advertisers of Nigeria (NUMAN) would show that the appellant would not commit the offence of criminal intimidation that the findings of the lower Court cannot be sustained in law as they have not discharged the onus of proof beyond reasonable doubt. He cited Section 138 (1) of Evidence Act, Laws of the Federation, 2004, now Section 135(1) of Evidence Act, 2011(as amended) ; Kabir Almu v The State (2009) 10 NWLR (Pt. 1148) 31 at 46

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etc.

That the proof beyond reasonable doubt demands that the prosecution must adduce credible and adequate evidence proving all the essential ingredients of the offence. He cited The State v Azeez & 5 Ors (2008) 14 NWLR (Pt. 1108) 439 at 478; FRN v Mohammed Usman & Anor (2012) 8 NWLR (Pt. 1301) 141 at 167.

For the appellant it was contended that the findings of the lower Court should be disturbed as they are perverse not being supported by credible evidence before the trial Court. He cited Action Congress of Nigeria v Sule Lamido (2012) 8 NWLR (Pt.1303) 560 at 594; Bright v The State (2012) 8 NWLR (Pt. 1302) 297 at 323-324.

That there was no independent and material witness called by the prosecution to authenticate what PW1 alleged to prove that the offence had been proved beyond reasonable doubt as required by Section 138 (1) of the Evidence Act, 2004.

Learned Counsel for the appellant went on to state that the defence put up by the appellant was not considered by the trial Court including the uncontradicted evidence of the DW3 and the failure ought to have made the appellate Courts to re-evaluate the evidence before it on the

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printed record of appeal. He cited Uche-Williams v The State (1992) 10 SCNJ 74 at 80;

Ndukwe v The State (2009)7 NWLR (pt.1139)43 at 85; Samuel Omobo v COP (1965-1966) NMLR 42.

That the fair hearing right of the appellant was breached when the lower Court failed to consider the submission of counsel for the appellant over the findings of the trial Court to the effect that PW1 should park out of Lokoja as a threat or criminal intimidation. He referred to Gbadamosi v Olaitan Dairo (2007) 3 NWLR (Pt.1021) 282 at 306-307; Oyewole v Karimu Akande & Anor (2009) 15 NWLR (pt.1163)119 at 148;

Amanchukwu v FRN (2009) 8 NWLR (pt.1144) 475 at 486.

Learned counsel for the respondent submitted in response that they as prosecution had proved the case of criminal intimidation beyond reasonable doubt and the Court below was right in concluding so. He cited

Obiakor v The State (2002) 6 SCNJ 193 at 202;

State v Aibangbee (1988) 7 SC (pt. 1) 96 at 132-133 etc.

That a Court can convict on the evidence of one single witness once the witness can be believed given all the circumstances of the case that a single credible witness can establish a

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case beyond reasonable doubt. He cited Akpabio v The State (1994) 7 – 8 SCNJ 429 at 458.

The learned Attorney General further submitted that there is no basis for this Court to interfere with the concurrent findings of the Lower Courts on the issues of facts. He cited Ugbo v Aburime (1994) 9 SCNJ 23 at 38; Oshatoba v Olujitan (2000) 2 SCNJ 156 at 176 etc.

That the concept of reasonable doubt is not fanciful doubts but doubts borne out by evidence and credible evidence at that. He referred to Mufutau Bakare v The State (1987) 3SC at 33.

The stance of the appellant is that there is no basis for his conviction on the offence of criminal intimidation as what transpired between him and the complainant, PW1 was not such as could be taken that the proof of the offence beyond reasonable doubt. That there was poor evaluation of the evidence proffered before the Court.

The respondent’s position is that the altercation that occurred showed that the PW1 was threatened and serious enough to meet the standard of proof beyond reasonable doubt of the offence of criminal intimidation.

It is to be noted that the onus is always on the prosecution to

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prove all the ingredients of the offences charged and the standard of proof is beyond reasonable doubt in keeping with Section 135 (1) of the Evidence Act, 2011 as amended. That is not to say proof with absolute certainty, but what is required is that the ingredients of the offense charged are proved as expected or required by law and to the satisfaction of the Court. This onus in a criminal trial rests throughout the proceedings on the prosecution to prove the guilt of the accused beyond reasonable doubt, it is not akin to proof beyond the shadow of doubt. See Obiakor v The State (2002) 6 SCNJ 193 at 202 per Kalgo JSC, State v Aibangbee (1988) 7 SC (Pt. 1) 96 at 132-133; Aric v The State (2009) 16 NWLR (pt.1068) 443 at 457; Kabir Alma v The State (2009)10 NWLR (pt. 1148) 31 at 46.

The Court of trial, the learned Magistrate in his summarisation had found that the prosecution had proved its case against the appellant beyond reasonable doubt and convicted the appellant pursuant to Section 397 of the Penal Code Law.

The Court below per Bada JCA summing up what had happened in the two Courts below it, that is the trial Magistrate Court and the High Court

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in its appellate jurisdiction held thus:

“My conclusion on this issue is that the Appellant has not been able to show that the findings of the lower Court is perverse or that has occasioned a miscarriage of justice, therefore, it is my view that the prosecution has proved its case against the appellant beyond reasonable doubt and the lower Court came to the right conclusion that the offence of criminal intimidation contrary to Section 397 of the Penal Code has been proved against the Appellant.”

For a clearer view the salient part of the evidence proffered by the prosecution would be put on display and that of PW1 is thus:

“I came to Lokoja on 12/3/2007 and the 2nd accused person gave the information to the 1st accused person. I was sweeping my premises when the accused persons broke in to my sitting room. They replied that it was an information given to them that made them to come to my house. They then turned and left my house on knowing my house at Lokoja. After two days, the accused persons called me to join them and they told me to pack out of Lokoja. After two days, the accused person called me to join them and they told me to pack out of

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Lokoja or they will kill me. I ran to Abuja to my family on several occasions. I went to my lawyer to complain and he advised me to register my own company, which I did the accused person also came to my place of business in Lokoja. I moved my office to my house yet the accused persons followed me that I must move out of Lokoja. The 2nd accused person told me that I must come and join them in their business or they will kill me as he knows the Inspector General of Police. On 1/12/2006, when I bought my car, the accused person brought poison to me through the 2nd accused and force me to drink it but I refused to drink it. I reported the matter to ‘B’ Division, Nigeria Police. On 28/3/2007, two boys came to my house with pistol. I thought they will shoot me on the way. I called a Police Officer on phone, but the call did not get through. I called another Police Officer by name Segun and it did not go.”

The Court of Appeal in re-evaluating what the High Court did in relation to its review of the findings of the trial Court did state as follows:

“(i) That the instances cited by the PW1 established the ingredients of the offence of criminal intimidation.

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(ii) That to ask PW1 to pack out of Lokoja is a threat, as this will diminish his freedom to act voluntarily and to do his business without let and hindrance

(iii) That even when he moved his office to his house, they still followed him there that he must pack out of Lokoja.

(iv) That the appellant was usurping the function of the regulatory body.

(v) That the appellant went beyond his (sic) boundary by threatening PW1 to pack out of Lokoja.

(vi) That the appellant threatened to kill PW1

(vii). That the threat to pack out of Lokoja was a breach of his fundamental right under Section 41, of the Constitution of Federal Republic of Nigeria 1999. A careful perusal of evidence of PW1 together with the review of the findings of the trial Court would reveal that the lower Court was right to conclude that the offence of criminal intimidation has been proved against the appellant.

The PW1 need not suffer any physical injury before it could be said that the prosecution has proved its case beyond reasonable doubt borne out by credible evidence.”

Also to be stated is that the angle taken by the appellant that the prosecution and

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later the trial Court relied on the evidence of PW1 alone, is a stand point that would not stand the test of the law or practice as a Court can convict on evidence of one single witness whose testimony can be believed given the circumstances of the case. That is to say that a sole credible witness can establish a case beyond reasonable doubt, particularly in circumstances where no corroboration is required. See Akpabio v The State (1994) 7 – 8 SCNJ 429 at 458.

To posit that the prosecution to prove criminal intimidation needs establish physical injury is a pedestrian viewpoint if I might humbly say so. This is because the need for the proof of a personal physical injury suffered by the complainant and in this case the PW1 is not an element or ingredient of the offence of criminal intimidation in establishing it as an offence worthy of conviction. It is enough if the prosecution is able to establish that the accused and in this case the appellant made a threat by which the victim is thrown into fear of a harm to himself or any other person of an instant harm. What the prosecution needs to prove are:

a. That the accused threatened the complainant or

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some other persons.

b. That the threat was of some injuries to him.

c. That it was given to cause alarm to him or to cause him not to do or omit to do any act which he is legally entitled to or not bound to do.

From the communication between the appellant and PW1 though, most of the communication was from the appellant asking PW1 to pack out of Lokoja with a threat and when he moved to his office, the appellant and his people came there to threaten him and followed him to his house with threat of death. Clearly the three ingredients or elements of the offence under Section 397 of the Penal Code Law are made out. This is the fulcrum of the concurrent findings of the three Courts below and in:

Action Congress of Nigeria v Sule Lamido & 40 Ors (2012) 8 NWLR (Pt.1303) 560 at 594, this Honourable Court per Rhodes-Vivour JSC, held that:

“It is long settled that the concurrent findings of fact would rarely be disturbed by this Court, but this Court would be compelled to interfere if the findings are perverse or cannot be supported by the evidence before the Court or there is/was a miscarriage of justice or violation of some principle

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of law or procedure.”

Similarly, in the case of Olatinwo Nurudeen Bright v The State (2012) 8 NWLR (Pt.1302) 297 at 323 – 324, this Court stated that:

“I said that findings of fact made by the trial Court and confirmed by the Court of Appeal are very rarely disturbed or interfered with, but this Court would quickly interfere and state the correct position if satisfied that there has been exceptional circumstances such as:

(a) The findings cannot be supported by evidence or are perverse or

(b) That there was miscarriage of justice or

(c) The Court overlooked some principles of law or procedure. See also Ogbu v The State (1992) 8 NWLR (Pt.259) 255.”

The above are the general principles on which an appellate Court should act faced with concurrent findings. When the appellate Court comes to the conclusion that the trial Court did not properly advert to the evidence or give necessary consequence to the evidence given, the appellate Court is duty bound to perform the exercise. That does not mean a usurpation of the area within the exclusive preserve of the trial Court as failure of the appellate Court to do that needful is an

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abdication of responsibility. See Lagga v Sarhuna (2008) 16 NWLR (Pt.1114) 427 at 461.

Indeed what is before this Court are concurrent findings of three Courts including the trial Court which Court of first instance has shown that it evaluated the evidence before it within the areas that could only have been at the instance of the Court that had the singular opportunity of hearing and seeing the vital witness or witnesses when they testified and so the two appellate Courts lacked the power to interfere. This being because the exceptional circumstances on which an appellate Court could interfere or disturb an earlier finding do not exist. The same applying to this Court. See Nkebisi v The State (2010) 5 NWLR (pt.471) 492; Dokubo Asari v FRN (2009) 37 NSCQR (Pt.11) 1146 at 1173.

The appellant had wanted this Court to upset what the Court below did on the ground that the conviction of the trial Court which the High Court affirmed was based on the testimony of a sole witness, PW1. It is now settled law that the prosecution is not under any obligation to call a host of witnesses with whom it can prove the guilt of the accused appellant. This is because the

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fact that PW1 was the victim does not make out a necessity or need for an independent witness as in human dealings an alleged threat can emanate in a transaction between just two persons, one the person making the threat and the other, the person to whom it is made. To put across that once there is no other witness apart from the complainant, the offence cannot be established is to negate the intendment of the law and to give free hand to a person to dish out threats irrespective of the effects, injury or damage to the person and the perpetrator go scot free. It is to be reiterated that once the sole witness has proffered credible evidence uncontradicted and sufficient to satisfy the Court that the burden of proof has been discharged, the fact that that single witness is the complainant is of no moment. I rely on Olabode v The State (2009) 38 NSCQR (Pt.1) 313 at 332; Buba v The State (1994) 7 – 8 SCNJ 472 at 478; State v Olatunji (2003) 14 NWLR (Pt.839) 138 at 167 – 168.

To answer the question whether the Court of Appeal was right in upholding the concurrent findings of the two Courts below it. That is whether at the trial Court the offence charged under

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Section 396 Penal Code Law had been proved beyond reasonable doubt. I would answer in the affirmative in that the prosecution respondent established the elements of the offence beyond reasonable doubt as the proof was borne out by the evidence from credible witness. I say so bearing in mind that not all doubts are reasonable and where they are not reasonable or fanciful doubt or imaginary doubt or speculative doubt, a doubt not sustained by the facts and circumstances of the case. In the case in hand there was sufficient evidence borne out of the record from which the proof beyond reasonable doubt was easily elicited and the concurrent findings were well situated, thereby staying the hand of this Court from interfering. See Mufutau Bakare v The State (1937) 3 SC 33 per Oputa JSC; State v Aibangbee (supra).

From the foregoing, there is clearly no merit in this appeal. I hereby order that the appeal is dismissed. I affirm the decision of the Court of Appeal in its affirmation of the judgment of the High Court which in turn affirmed the judgment, conviction and sentence of the trial Magistrate Court.

Appeal dismissed.

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SC.330/2012