Legalpedia Electronic Citation: LER [2018]SC.645/2014

Suit no: SC.645/2014

AREAS OF LAW:
Appeal, Criminal Law And Procedure, Law Of Evidence, Practice And Procedure

SUMMARY OF FACTS
The accused person now Respondent was charged for criminal misappropriation at the High Court of Justice, Zamfara State. He pleaded not guilty to the charge and the case proceeded to trial with the Respondent testifying in his own defence without calling any witness or tendering exhibits. At the conclusion of the trial, the learned trial judge made a finding that the prosecution had failed to establish a case of criminal misappropriation under section 308 and punishable by section 309 of the Penal Code, hence, he was discharged and acquitted. On appeal to the Court of Appeal, Sokoto Division, by the Appellant, the court set aside the judgment of the trial court and ordered a retrial of the case on grounds of conflicts and contradictions in the evidence of PW1 and that of the accused/Respondent which the trial court failed to evaluate. Dissatisfied with the decision of the lower court, the Appellant has appealed further to this court contending that since the trial court failed to make findings on material and important issues of facts, the court below by virtue of its powers under Section 16 of the Court of Appeal Act (as amended); Order 4 Rule 3 of the Court of Appeal Rules, 2011 and Section 26 of the Supreme Court Act and Order 8 rule 1(2)of the Supreme Court Rules 1985(as amended), ought not to order a retrial but to draw the necessary inferences and make appropriate findings.

HELD
Appeal Dismissed

ISSUES FOR DETERMINATION
 Whether the learned Justices of the Court of Appeal were right in making an order of re-trial having set aside the acquittal of the respondent?

RATIONES
COURT OF APPEAL -GENERAL POWERS OF THE COURT OF APPEAL
“The general powers of the Court of Appeal as provided by Section 16 of the Court of Appeal Act, reads as follows:
“The Court of Appeal may from time to time make any order necessary for determining the real question in controversy in the appeal, and may amend any defect or error in the record of appeal…………. and may re-hear the case in whole or in part or may remit it to the court below for the purpose of such re-hearing or may give such other directions as to the manner in which the court below shall deal with the case in accordance with the powers of that court, or, in case of an appeal from the court below in that court’s appellate jurisdiction, order the case to be re-heard by a court of competent jurisdiction
– PER I.T. MUHAMMAD, J.S.C

RETRIAL ORDER – WHEN IS IT APPROPRIATE FOR AN APPELLATE COURT TO MAKE A RETRIAL ORDER?
“The law has, for long, been stated by this court in case of a retrial that in a matter where so much depends on the credibility of evidence of parties and their witnesses, the proper course to be taken by an appellate court is to order a retrial. The case of Mbionwu v. Obi (1997) 2 NWLR(Pt. 487) has been cited in support”. PER I.T. MUHAMMAD, J.S.C
RETRIAL ORDER – DUTY OF AN APPELLATE COURT TO ORDER A RETRIAL WHERE THE EVALUATION OF EVIDENCE BORDERING ON THE CREDIBILITY OF A WITNESS IS NOT DISCHARGED BY A TRIAL COURT
“In the case of Duruaku Eke & Ors v. Udeozor Okwaranyia & Ors (2001) LPELR 1074, this court stated as follows:
“It may well happen that a trial court made no finding of fact on conflicting material evidence adduced on an issue by both parties to an action, the resolution of which is essential to the just determination of the case, the proper course is to order a retrial unless the circumstances of the case do not warrant such an order”
See further: Chief James Okpiri & Ors v. Chief Igoni Jonah & Ors (1961) 1 All NLR 102; Olalere Obadara & Ors v. The President, lbadan West District Court (1964) 1 All NLR; Oladipo Maja v. Learndro Stocco (1968) 1 NMLR, 172. It is thus, the primary duty of any trial court, where assessment or evaluation of evidence rests on the credibility of witnesses to unfailingly discharge that function as it is the one and only court that had the advantage of seeing and observing the witnesses. Where it however fails to discharge such responsibilities, then an appeal court is in much a good position as the trial court to deal with the fact and make proper findings. In the case of Shell BP Petroleum Dev. Co. Nigeria Ltd. v. Cole & Ors (1978) 3 SC (reprint) 128; this court, per Bello, JSC (as he then was and of blessed memory), held, among other things, that:
In a matter where so much turns on the credibility or reliability of witnesses, the proper course to be taken by the Court of Appeal is to make an order for a retrial.”
– PER I.T. MUHAMMAD, J.S.C
RETRIAL ORDER – CRITERIA FOR A RETRIAL ORDER
“Permit me to remind your lordships that a retrial order becomes necessary when there had been an error in law or an irregularity in the procedure that does not make the trial a nullity or results in miscarriage of justice. In the case of Moshood v. The State (2004) 14 NWLR (Pt.893) 422 at 428, the Supreme Court spelt out the criteria for a retrial order: The court must be satisfied that: (a) the evidence taken may otherwise disclose the commission of the offence substantially, (b) there is no special circumstance that will render it oppressive to put the accused to trial a second time; (c) that to refuse an order for a retrial would result in a greater injustice; (d) that the offence or offences of which accused was convicted or the consequences to the accused or any other person of the conviction or acquittal of the accused, are not merely trivial. The case of Abodundu v. The Queen (1958) 4 FSC 70 at 73 was cited in support”. PER I.T. MUHAMMAD, J.S.C
RETRIAL ORDER – INSTANCES WHERE AN APPELLATE COURT CAN MAKE A RETRIAL ORDER
“Specific findings on the issues in controversy, will have to be made by the trial court. In most time such findings will depend on the reliability of the witnesses who testified on either side. Where the trial court failed to indicate which version it accepted as true, an appellate court cannot believe witnesses it never saw or heard. In that circumstances, the appeal may be allowed as done by the court below and retrial order be made. Equally, when a trial judge makes a wrong approach to the assessment of evidence especially in failing to resolve conflicting evidence. See: Ezeoke v. Nwagbo (1988) 1 NWLR (Pt.72) 616; Oke & Ors v. Eke & Ors (supra); Okpisi v. Jonah (1961) 1 All NLR 102”. PER I.T. MUHAMMAD, J.S.C
SPECULATIONS – ATTITUDE OF COURTS TO SPECULATIONS
“Speculations have no place in law and courts of law discourage speculations. Certainty is the hallmark of evidence law and our courts lay heavy premium on it”. PER I.T. MUHAMMAD, J.S.C
RETRIAL – ESSENCE OF A RETRIAL
“A retrial, my lords, is always aimed at doing justice between the parties to the case. It is not to favour one of the parties at the expense of the other. It is not, therefore, ordered merely to afford an opportunity to the plaintiff in a civil matter, or prosecution in a criminal case to improve upon a hopeless case. See: Ayoola v. Adebayo (1969) 1 All NLR 159 at 162; Solomon & Ors v. Mogaji & Ors (1982) 11 SC 1 at 24 & 25: Total Nigeria Ltd. v. Nwako (1978) 5 SC 1 at 14; Okpiri v. Jonah (1961) 1 All NLR 102” .PERI.T.MUHAMMAD, J.S.C
OFFENCE OF CRIMINAL MISAPPROPRIATION – ESSENTIAL INGREDIENTS THAT MUST BE PROVED TO SECURE A CONVICTION IN AN OFFENCE OF CRIMINAL MISAPPROPRIATION
a. The property in question is a movable property.
b. That the accused converted or misappropriated it to his own use.
c. That he did so dishonestly
It needs be said that all the three essential elements must be proved, none missing before the requirement of the law on the standard of proof beyond reasonable doubt is met. Where those essential ingredients of the offence are not proved, the accused is entitled to an acquittal. See Alabi v The State (1993) 7 NWLR (Pt.307) 511 at 523; Nwokedi v COP (1977) 3 SC 35 at 40’’.PER M.U.PETER-ODILI, J.S.C
EVALUATION OF EVIDENCE AND THE ASCRIPTION OF PROBATIVE VALUE – PRIMARY DUTY OF THE TRIAL COURT IN THE EVALUATION OF EVIDENCE AND THE ASCRIPTION OF PROBATIVE VALUE THERETO
“My Lords, the law is by now very well settled that a trial court has the unique advantage of seeing and hearing witnesses testify and of observing their demeanour. It is for this reason that the evaluation of evidence and the ascription of probative value thereto is primarily that of the trial court. Particularly in a criminal trial, where the prosecution must prove its case beyond reasonable doubt, it must be apparent on the record that the court gave adequate consideration to the evidence on both sides and reasons given for believing the evidence of one side as against the other. See: Adamu Vs The State (1991) 4 NWLR (Pt, 187) 530; Awopeio Vs The State (2001) 18 NWLR (Pt, 745) 430; Boy Muka Vs The State (1976) 9 & 10 SC 305; Ibeh Vs The State (1997) 1 NWLR (Pt, 484) 632. PER K.M.O. KEKERE-EKUN, J.S.C
EXERCISE OF DISCRETION – GROUNDS ON WHICH AN APPELLATE COURT WOULD INTERFERE WITH AN EXERCISE OF DISCRETION BY A TRIAL COURT
“Ordinarily, an attack on wrongful exercise of discretion is predicated on a number of grounds including mistake of law, or disregard of principle, or under a misapprehension of the facts, or taking into consideration extraneous or irrelevant matters, or some other grounds suggesting that the discretion was not exercised judicially: Odutola v. Kayode (1994) 2 NWLR (pt. 324) 1; (1994) 2 SCNJ 21. It has never been a judicial principle that the appellate Court could interfere with the exercise of discretion merely on the ground that it would have, in the circumstances, exercised its discretion differently: Hadmor Productions Ltd. v. Hamilton (1983) A.C. 191, Saraki v. Kotoye (1990) 6 SCNJ 31 at 31”.PER E.EKO,J.S.C
WITNESS – WHETHER COURTS CAN PICK AND CHOOSE WHICH WITNESS TO BELIEVE OR DISBELIEVE
“In other circumstances where the witnesses called by the prosecution, gave different versions of the same incidence or transaction, it had been held that the Court cannot pick and choose which witness to believe and which witness to disbelieve, and that in the circumstance the prosecution had failed to prove the guilt of the accused beyond reasonable doubt: Paul Ameh v. The State (1978) 6 – 7 SC 27; Boy Muka v. The State (1976) 10 SC 305; James Ikhane v. Commissioner Of Police (1977) 6 SC 119”. PER E.EKO, J.S.C

STATUTES REFERRED TO:
Court of Appeal Act (as amended)
Court of Appeal Rules, 2011
Supreme Court Act, Cap 424, Laws of the Federation of Nigeria, 1990
Supreme Court Rules, 1985 (as amended)