⦿ CASE SUMMARY OF:
Theophillus Onuoha v. The State (1988) – SC
(1988) NWLR (Pt.83)460;
⦿ LEAD JUDGEMENT DELIVERED BY:
E. B. Craig, J.S.C.
* FOR THE APPELLANT
– D. C. Denwigwe Esq.
* FOR THE RESPONDENT
– R. A. Afolabi Esq Ag.
⦿ FACT (as relating to the issues)
This case originated in the High Court of Justice,Ilorin Kwara State. In that court, the Appellant was charged before Gbadeyan, J. for criminal breach of trust contrary to section 315 of the Penal Code and after due trial in which 17 witnesses testified for the prosecution and 3 for the defence; the appellant was found guilty and was sentenced to 5 years imprisonment;
He was also ordered to forfeit to the Federal Government the sum of N68,959.50 which he had misappropriated. The Appellant was dissatisfied with that judgment and he appealed to the Court of Appeal Kaduna Division on several grounds of appeal most of them involving facts or mixed law and facts. The Appellant also appealed against the sentence passed on him particularly that of forfeiture.
That appeal was argued at length and in a well considered judgment by Maidama J.C.A. (Akpata and Ogundere JJ.C.A. concurring). The lower Court allowed the appeal in respect of the order of forfeiture and dismissed his appeal on all the other grounds. The appellant has appealed further to this Court on seven grounds of appeal.
1. It would appear that the Appellant is questioning the manner in which the learned trial Judge had reviewed the evidence.
2. Whether there was a proper finding by the trial court.
⦿ HOLDING & RATIO DECIDENDI
1. ISSUE 1 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. In short, what the prosecution was expected to prove was (1) that the Appellant was a Public Servant (2) that in such capacity he had been entrusted with the money in question (3) that he had committed a breach of trust in respect of the money i.e. either (a) he had misappropriated it or (b) converted it to his own use or (c) in any way what so ever disposed of it fraudulently and in a manner contrary to the directive given to him.
In this case, it seems to me that the Appellant himself had made the work of the prosecution eminently easy. In his statement, Exhibit 21, he admitted receiving the money as contained in exhibits 5-18. He also admitted handing over the money to the Pay Officers and lastly he admitted that in respect of the balance, he stated as follows:- “I remember that after payments at each time I was informed by them that there was some balance of money. This was so because the School was yet to decide whether the recruits would be paid exactly what was deducted from their salary or what the Federal Government approved for them. Because they were fed with amount less than N3 by the contractors.” Later in the said statement, he also had this to say:- “Since I happen to be boss or the Commander at the time of this incident, I have decided to accept the responsibility over the shortcomings of my subordinates with regard to the missing balance of this money and what I borrowed from Inspector Aina.” He then went on “In order not to shark (sic) responsibilities and involve people, I have accepted to refund the missing balance with the staff who made payments, if I am allowed to do so. I did not share the money with anybody. It is unfortunate that part of this money is not available. All the same, as I have said, I pray the authorities to give me chance and time to return whatever amount that is missing.” That was a statement from a Police Officer of the rank of Superintendent of Police. All the same, because he had pleaded not guilty, it became the duty of the Court to receive evidence from these 17 witnesses and in doing so the learned trial Judge was right to say that he was satisfied with the evidence which they had given. It is to be noted that when the Appellant himself came to give evidence he admitted that these 17 witnesses could not have told lie against him. When this matter came before the Court of Appeal, that Court held that there was no contravention of section 269 of the C.P.C. and I also share that view.
In my view, the judgment under review shows that the learned trial Judge had adequately set out the facts in the case and he had made correct findings from those facts. In those circumstances, I am satisfied that there was sufficient compliance with the said sub section of the C.P.C.
2. ISSUE 2 WAS RESOLVED AGAINST THE APPELLANT BUT IN FAVOUR OF THE RESPONDENT.
i. In the instant case, the facts were that the Appellant was to pay to each Police Recruit the sum of N3 per day as feeding allowance on the order of the Inspector General of Police. He was paid a sum of money which would cover the required number of recruits from January to September, 1983. He then nominated the 10th and 11th prosecution witnesses to make the payment; but in doing so, he told those two men that they should only pay them half of what the Federal Government had directed; so that after payment, these two men had a balance which they brought back to him and it was this balance which according to the prosecution, the appellant had misappropriated. (He claimed to have kept it in a safe in the office of the 7th witness, the balance which now amounts to N68,959.50). During the hearing, there was no suggestion of any sort that either or both of these witnesses (10th and 11th) were accomplices of the appellant and all that these two witnesses did as found by the trial Judge was that they had carried out his orders. In the portion of the statement to which I have already made reference, the Appellant said that he was keeping back that balance (N68,959.50) so that he could get a further directive from the authorities as to whether he could use it to buy some essential materials for the Police School. Up to the time of his arrest, he did not get that clearance nor could he even produce the said sum of money. I am satisfied that there has been a proper evaluation of the evidence and I do not see the need to interfere with those findings.
⦿ SOME PROVISIONS
Section 269(1) of the Criminal Procedure Code reads as follows:- 269(1) Every judgment shall contain the point or points for determination, the decision thereon and the reasons for the decision and shall be dated and signed or sealed by the court in open court at the time of pronouncing it.”
⦿ RELEVANT CASES
In the case of Isaac Stephen v. The State (1986) 5 N.W.L.R (Pt.46) 978 at p. 1005, I (Oputa, JSC) made the following comments which I think reflect at least part of the complaint and objection of the present Appellant to the way the learned trial Judge wrote his judgment: “Since my commentary in this appeal was motivated by the way the judgment of the learned trial Judge was written, it may not be out of place to proffer what I would consider to be a proper and scientific approach to the difficult problem of writing a judgment.
Stage 1: If the plea of the accused person is guilty no issues arise and no evidence is required. The trial Court can proceed straight to judgment. But if the plea is not guilty (as it is bound to be in murder trials) then all the constituent elements of the offence or offences charged are put in issue. And the onus lies heavily on the prosecution to prove the offence charged beyond reasonable doubt.
Stage 2: When issues are thus joined, evidence is led in proof or disproof of each issue. At this stage the duty of the trial Court is merely to record the evidence led and observe the demeanour of the witnesses called by either party.
Stage 3: This is the most important and crucial stage as it deals with the perception of facts, evaluation of facts, belief or disbelief of witnesses and findings and conclusions based on the evidence accepted by the trial Court. At this stage, the trial Court will briefly summarise the case of either party. This does not mean reproducing verbertim the evidence of the prosecution witnesses and of defence witnesses one by one but it does mean using such evidence to tell a coherent and connected story. Having done this, the trial Court will then decide which story to believe. Here it is important to emphasise that the over-worked expressions “I believe” or “I do not believe” have no intrinsic magic power or potency. There is nothing wrong in believing one side and disbelieving the other if either the belief or disbelief is in consonance with the natural drift of the evidence and the probabilities which on the totality of that evidence it is natural to expect.
Stage 4: Having exercised his prerogative to believe or disbelieve, having made his findings of fact the trial Court will then draw the necessary inference or conclusion from the facts as found. Finally the trial Court would then discuss the applicable law against the background of the facts as found. Any judgment that follows the above pattern or something similar to it will be of invaluable help to the Courts of Appeal as well as to the parties to the appeal. One would only wish that our trial Courts do approach the difficult task of writing judgments in some methodical and orderly fashion.”
⦿ NOTABLE DICTA
No doubt, most judgments are written in the manner suggested by Counsel i.e. a review of the case for the prosecution; followed by that of the defence; followed by a statement of the law and concluded by a finding on the facts. But I must state that writing a judgment is an art in itself and there is more than one way of going about it. It is possible to have as many variations as there are Judges. What is essential is that a Judge should show a clear understanding of the facts in the case, of the issues involved, of the law applicable; and from all these, he should be able to draw the right conclusions and make a correct finding on the evidence before him. – Craig, JSC. Onuoha v. State (1988)
A mistake in procedure (assuming there was one here) can only be fatal if it prejudiced the defence or/and thereby occasioned a miscarriage of justice. – Oputa, JSC. Onuoha v. State (1988)
If it was a jury trial there the Judge will explain the law on the offence. He will thereafter put to the jury the case for the prosecution and the case for the defence. This should be each adequately done. After that he then will review the evidence on either side and ask the jury to consider which of the witnesses they believe. Since belief or disbelief largely depend on consistency and probability, the trial Judge will in particular draw attention to inconsistencies material inconsistencies that is in the evidence. He will then ask the jury to consider whether the existent inconsistencies are sufficient to cast a doubt on the case for the prosecution. Doubt here means reasonable doubt. In a non-jury trial, the trial Judge should address the above questions to himself in his capacity as jury. If he is satisfied that on the facts and the law, the case has been established beyond reasonable doubt, he will then be justified in finding the accused person guilty. I must add that in the evaluation of evidence, the trial Judge should not lose sight of any confessions or admissions made by the accused person. His verdict should be based on the totality of the evidence. – Oputa, JSC. Onuoha v. State (1988)
In my view, a well written brief should be brief and precise. It should also seek to bring out only the essential points which the Appellant wants the Court to consider. A brief which deals extensively with both the relevant and irrelevant matters is of no use to the court. – Craig, JSC. Onuoha v. State (1988)
In so far as these grounds consist of concurring findings of facts, findings which have been confirmed by two lower courts, the attitude of this Court has always been not to interfere with those findings unless there is reason to believe that they are perverse or not supportable by the evidence before the court. – Craig, JSC. Onuoha v. State (1988)
In a non-jury trial, the Judge serves both as Judge and jury. He decides issues of fact and law. – Oputa, JSC. Onuoha v. State (1988)
Thus in Willie John and Edem Dan v. The State (1966) 1 All N.L.R. 211 the trial Judge in his summing up, in a case of house breaking and stealing, merely referred to the charge and added:- “The case is on the facts. The evidence against each of the accused is overwhelming. It is a surprise that none of them pleaded guilty. I find each of them guilty on the two counts.” The above was a mockery of a summing up. It was highly prejudicial to the two accused persons and the trial Judge did not even consider the accused persons’ defences for what they were worth No matter how worthless such defences would seem to appear, the trial Judge still had a duty to consider them dispassionately before dismissing them. – Oputa, JSC. Onuoha v. State (1988)