Legalpedia Citation: (2023-12) Legalpedia 71677 (CA)

In the Court of Appeal

Holden At Calabar

Tue Dec 12, 2023

Suit Number: CA/C/196C/2021

CORAM

Hamma Akawu Barka Justice, Court of Appeal

Balkisu Bello Aliyu Justice, Court of Appeal

Peter Chudi Obiora Justice, Court of Appeal

PARTIES

AUGUSTINE EFFIONG BASSEY

APPELLANTS

THE FEDERAL REPUBLIC OF NIGERIA

RESPONDENTS

AREA(S) OF LAW

APPEAL, CONSTITUTIONAL LAW, CRIMINAL LAW AND PROCEDURE, EVIDENCE, JUDGMENT, PRACTICE AND PROCEDURE

SUMMARY OF FACTS

The appellant was the Branch Manager of Ekondo Microfinance Bank Ltd at Uyanga in Akamkpa Local Government Area of Cross River State. In the process of account reconciliation, it was discovered that a misappropriation of funds to the tune of N27, 300, 000.00 (twenty-Seven million three Hundred Thousand Naira) occurred when he was superintending the bank as Branch Manager. Having been accosted with the monumental loss, Appellant is said to have stated that the money was given to customers for business transactions, and even though the loan was unauthorised and/or unsecured, he denied stealing the said amount which he claimed was less than the money alleged to have been stolen.

The Appellant was arraigned on a one count charge of stealing contrary to Section 390 of the Criminal Code Law, CAP C16 (Vol.3) of the Laws of Cross River State of Nigeria, 2004 and punishable under Section 390 (9) of the same Law.

The Appellant was found guilty of the offence and sentenced to five years imprisonment with the option of returning the sum of fifteen Million Naira to Ekondo Microfinance Bank. Dissatisfied by the decision, he made the instant appeal.

 

HELD

Appeal dismissed

 

ISSUES

1. Whether delivering of judgment against the appellant over 10 months after the adoption of final addresses did not occasion miscarriage of justice and what should be the fate of such judgment on appeal?
2. Whether it is not the duty of the prosecution to prove the commission of a crime beyond reasonable doubt and what should be the effect of a failure to so prove?

 

RATIONES DECIDENDI

JUDGMENT – WHERE JUDGMENT IS DELIVERED BEYOND THE 90 DAYS STIPULATED

…the judgment complained on, breached the stipulations of Section 294(1) of the Constitution, having been delivered beyond the 90 days stipulated therein. However, as rightly conceded, that alone does not void the judgment unless it is shown that the defendant did suffer a miscarriage of justice. The fact as to whether the defendant or convict suffered a miscarriage of justice no doubt rests on that party asserting, which in this case is the Appellant. – Per H. A. Barka, JCA

 

BURDEN OF PROOF – BURDEN AND STANDARD OF PROOF IN CRIMINAL TRIALS

It is trite law that in criminal trials, the burden of proof is always on the prosecution who must prove the guilt of the accused beyond a reasonable doubt. This flows from the constitutional provision which presumes an accused person innocent until proven guilty. The burden can only be discharged where the guilt of the accused is properly established. See, Idemudia vs. State (1999) 7NWLR (pt. 610) 202 and Nweze vs. The State (2017) LPELR – 42344 (SC). The proof required does not transcend to proof beyond any iota of doubt, but that all the ingredients of the charge are established within compelling and conclusive evidence which translates to a standard of a high degree of probability. See, Mathew Thomas vs. State (2017) LPELR – 41735 (SC), Adewale Joseph vs. State (2011) 6SCNJ 222 @ 235, Nasiru vs. The State (1999) 2NWLR (pt. 589) 87 @ 98, Musa vs. The State (2022) 3NWLR (pt. 1817) 285 @ 309, State vs. Ahmed (2020) (pt. 1743) 1 (SC). – Per H. A. Barka, JCA

 

PROSECUTION – WAYS THE PROSECUTION ESTABLISH THE GUILT OF THE ACCUSED

The prosecution in an attempt to establish the guilt of an accused, usually adopts one or a combination of the following methods in proving the guilt of an accused person, i.e

1. Confessional statement

1. Eye witness account of a witness, and

iii. Circumstantial evidence.

See, Igabele vs. State (2006) 2SC (pt. 11) 61, Olaoye vs. The State (2018) LPELR – 43601 (SC), Adio vs. The state (1986) LPELR – 183 (SC), Alufohai vs. The State (2015) 3NWLR (pt. 1445) 172. – Per H. A. Barka, JCA.

 

STEALING – MEANING OF STEALING

The act of stealing has been defined to mean that person who fraudulently takes anything capable of being stolen or fraudulently converts to his own use or to the use of any other person anything capable of being stolen. See, Olamolu vs. The State (2013) 2NWLR 580. It is committed if the taking of the thing capable of being stolen is done fraudulently, that is, that the conduct of the accused conveys an element of deceit to obtain some advantage for the architect of the fraudulent action or conduct of another person or to cause loss to any other person. See, Omololu vs. The State (supra), Clark vs. The State (1986) 4NWLR (pt. 35) 381 Shodiya vs. The State (1992) 3NWLR (pt. 230) 456 and Onwudiwe vs. FRN (2006) 10NWLR (pt. 988) 382.

Therefore, there is a bounden duty which lies on the prosecution to show that the thing stolen is capable of being stolen, and that it belonged to another person whether natural or artificial. – Per H. A. Barka, JCA

 

EVIDENCE – THE IMPORTANCE OF A COGENT, UNCONTROVERTED, AND UNCHALLENGED EVIDENCE

The position of the law is that a cogent, uncontroverted and unchallenged evidence of a witness alone can ground conviction. – Per H. A. Barka, JCA

 

EVIDENCE – WHETHER IT IS MANDATORY FOR CORROBORATIVE EVIDENCE TO EXIST BEFORE PASSING CONVICTION

In any case, it is not mandatory for corroborative evidence to exist before basing conviction on confessional statement. The Court where the confession is direct, positive and unequivocal and properly proved may convict the accused solely on the confessional statement. See, Ogoala vs. The State (1991) 2NWLR (pt. 175) 509, Essien vs. The State (2018) ALL FWLR (pt. 939) 1993, State vs. Ahmed (2020) 14NWLR (pt. 1743) 1 @ 22 – 24.  – Per H. A. Barka, JCA

 

TRIAL COURTS – PRIMARY DUTY OF TRIAL COURTS TO EVALUATE EVIDENCE AND ASCRIBE PROBATIVE VALUE TO IT

The trite position of the law is that the task of evaluating evidence and ascribing probative value to it is the primary duty of the trial Court. The Court of appeal and indeed the Supreme Court are handicapped when the issue of evaluation of evidence is raised and the credibility of the witnesses made an issue. See, Nnorodim vs. Ezeani (2001) 5NWLR (pt. 706) 203, Mamuda vs. The State (2019) 5NWLR (pt. 1664) 128 @ 141, Lasisi vs. The State (2013) 9NWLR (pt. 1358) 74 @ 96. – Per H. A. Barka, JCA

 

JUDGMENT – WHERE JUDGMENT IS NOT DELIVERED WITHIN 90 DAYS AFTER THE CONCLUSION OF EVIDENCE AND FINAL WRITTEN ADDRESS – THE IMPORTANCE OF THE CONSTITUTION

The judicial powers to be exercised in Nigeria is vested in the Courts established for the Federation and States of the Federation. See Section 6(1), (2) and (5) of the Constitution of the Federal Republic of Nigeria (as amended).

The end of every adjudication by a Court of law is expectedly the judgment which encapsulates the findings and decision of the Court on the matter placed before it for adjudication. The manner and time for delivery of the judgment of a Court is not left at the whims’ and choice of the Court. It is guided by Section 294(1) of the Constitution which provides as follows:

294(1) Every Court established under this Constitution shall deliver its decision in writing not later than ninety days after the conclusion Of evidence and final addresses and furnish all parties to the cause or matter determined with duly authenticated copies of the decision within seven days of the delivery thereof.

The operative word used in the above constitutional provision is “shall”. The word “shall” is not permissive action but connotes a command and must be given a compulsory meaning. See Ugwu v. Ararume (2007) 12 NWLR (Pt. 1048) 365 at page 412; Faran v. Kano (2017) LPELR-43626(CA) (Pp. 13 paras. 8) and Achineku v. Ishagba (1988) 4 NWLR (Pt. 89) 411.

The Constitution is the grundnorm and fons et origo, and it is only right that all citizens and ‘institutions in Nigeria should keep fidelity with its provisions. As was stated by Belgore, JSC (later CJN) in A.G. Federation v. A.G. of Abia State & Ors (2001) LPELR-24862(SC) at pages 33-34, paras. E:

“It must be remembered that fountain of all our laws is the Constitution; it is also the composite document setting out how the country is to be held together. It is not a document to be read with levity or disdain; every Section must be given its meaning i.e. every Section has meaning and not devoid of-adequate interpretation. It is the very foundation of the nation’s existence.”

The requirement that a Court delivers its judgment within 90 days of adoption of final addresses is not provision to toy with. It is also not there for fun. The Idea behind such noble provision is to ensure that the matters and issues are still fresh in the mind-of the judex to enable him appreciate them as he sets about the solemn and sensitive task of writing his decision which invariably will affect the lives and interests of the parties.

While there may be reasons that make it difficult for a Court to adhere to this constitutional mandate, such must be a rare exception. It is true that Section 294(5) of the 1999 Constitution provides that a decision of a Court delivered outside the stipulated 90 days period shall not be set aside or treated as a nullity solely on that ground unless it occasioned a miscarriage of justice, but the provision only goes to save the decision of the Court and does not remove the reproach on the judge who violated the constitution. – Per P. C. Obiorah, JCA

 

CASES CITED

STATUTES REFERRED TO

1. Constitution of the Federal Republic of Nigeria 1999 (as amended)
2. Criminal Code LAW Cap. C16 Vol. 3 Laws of Cross River State

CLICK HERE TO READ FULL JUDGEMENT