In The Court of Appeal

(Abuja Judicial Division)

On Thursday, the 14th day of April, 2011

Suit No: CA/A/90/C/08

Before Their Lordships

 Between

 And

REGINA OBIAGELI NWODO, J.C.A. (Delivering the Leading Judgment): The appellant with two other persons were arraigned first before Grade I Area Court Ajaka and the case was later transferred to the Magistrate Court and they were arraigned before the Chief Magistrate Court of Kogi State of Nigeria as accused persons on allegation of committing the offences of Criminal Trespass and mischief contrary to sections 348 and 327 of the Penal Code Law in case No. ICMC/15C/2006. Each of the accused denied the allegations. The prosecution called four witnesses who testified before the court. At the close of the case, the learned Magistrate ruled that a case has been made out against the accused persons and proceeded to frame two count charges against them which read as follows: 

"1. That you Bala Ataguha Godwin Aguda and Wada Abuka all males of Ikare Ajaka within the jurisdiction of this court, on or about the 13th day of February, 2006 unlawfully entered into the landed property then in possession of one Agude Adaji and thereby committed an offence punishable under S.348 of the penal code.

2. That you Bala Ataguba, Godwin Aguda and Wada Abuka, all males of Ikare - Ajaka, within the jurisdiction of this court, on or about the 13th February, 2006 wrongfully damaged or destroyed a mud cement building belonging to one Agude Adaji and thereby committed an offence punishable under S.327 of the penal code.

The reproduced charges were read to each of the accused persons who each understood the charge and each pleaded not guilty. Each of the accused testified and called a witness. The learned counsel addressed the courts respectively.

The Chief Magistrate Hon. M. M Gwatana in a well considered Judgment discharged and acquitted the 2 and 3 accused persons and found the 1st accused who is now the appellant guilty of committing the offence of criminal trespass and mischief punishable under S.348 and S.327 of the penal code respectively. The accused person was sentenced to 12 months imprisonment or option of fine N3,000.00 (Three Thousand Naira) for the offence of criminal trespass and for the offence of mischief he was sentenced to a prison term of six (6) months or a fine of N1,000.00 the sentences to run concurrently.

The convict Bala Ataguba, aggrieved by the decision then appealed against the decision to the High Court of Justice, Kogi State vides a Notice of Appeal filed on 8th February 2007. The notice of appeal contains three (3) grounds of appeal. The High Court after a consideration of the appeal decided that the trial court effectively handled the case and affirmed the conviction and sentence of the appellant, by the trial court. 

The appellant dissatisfied with the decision of the High Court of Justice Kogi State delivered on 26/07/07 filed a notice of appeal containing four grounds of appeal.

In line with the practice and rules of this court, parties filed and exchanged briefs of argument. At the hearing of the appeal on 02/03/2011 learned counsel for the appellant adopted the appellants brief settled by Chief O.J Onoja filed on 17/12/09. The learned counsel for the respondent adopted the respondents' brief of argument settled by Joe A. Abrahams filed 8/6/2010 and deemed filed on 30/9/10 by order of court.

Briefly the facts that lead to the case is as follows: the complainant described as police informant commenced the erection of a building on a disputed land. Sometime in February 2006, he sent his children to pick cashew nuts in the farmland when the children, PW2 and PW3 approached the farm they saw some people destroying the house their father built on the land, when they asked the people why they were breaking their fathers house, they pursued them with cutlasses and stick. The PW2 and PW3 reported that they saw the three accused persons amongst the people destroying the building in the farmland. 

In the appellants brief, 3 issues were distilled for determination from the ground of appeal which reads thus:

"1. Whether the appellant raised the defence of alibi timeously. (Ground: 2)

2. Whether the appellant is not entitled to the defence of bonafide claim of right. (Ground: 3)

3. Whether the appellant was properly convicted and sentenced for the offences of Criminal Trespass and Mischief, (Ground: 1 and 4)."

Whilst in the respondent's brief two issues distilled for determination reads as follows:

"Whether there exists a justifiable ground for disturbing the judgment of the trial chief magistrate court, Idah (which was affirmed by the appellate high court) wherein the appellant was convicted and sentenced for the offences of criminal trespass and mischief (grounds 7, 2 and 4).

Whether the defence of bonafide claim of right can avail the appellant (ground. 3).

I have looked at the issues distilled by the learned counsel for the appellant and the respondent respectively. The three issues formulated in the appellant brief are apt for the determination of the points raised in the grounds of appeal. I will adopt the three issues for the determination of this appeal. 

Under Issue one whether the appellant did not raise the defence of Alibi timeously. The learned counsel for the appellant contended that the oral testimony of PW4 is that the appellant raised the defence of alibi early enough but same was not recorded in his statement by the PW4 who was the investigation officer that recorded the statement of the appellant. It is his submission that the absence of such defence in the recorded statement of the appellant is the fault or sin of the police, particularly the PW4 and same cannot be visited on the appellant in this case. He referred to Oteju v. M.M S. Ltd. (2000) 1 NWLR (Pt.646) 270 where it was held that visiting the sin of counsel on the litigant breeds injustice.

Learned counsel further submitted that PW4's testimony that appellant raised the defence of alibi whereas same is absent in the recorded statement raises a doubt on whether the said defence was not raised at all. He submits that it is the law that where there is a doubt in a criminal trial such doubt must be resolved in favour of the accused person. He referred to State v. Kura (1975) 9 NSCC 25 at 28. He urged the court to resolve the doubt in favour of the appellant as it was the failure of the PW4 to record the defence of alibi that lead to the failure of the police to investigate same in the first place. He urged the court to hold the defence of alibi was raised at the earliest opportunity. 

Learned counsel for the respondent submitted that the appellant had an unfettered opportunity to raise the defence of alibi before the police on apprehension and commencement of investigation and he did not do that, he contends it is too late in the day to complain. He cited Evisi v. State (2000) 15 NWLR (Pt.691) 555 at 596 - 597 Paraeraph G-H. The crux of this issue is whether the testimony of PW4 reflects that the appellant raised the defence of alibi at the state of investigation and when his statement was recorded by PW4. 

On the issue of alibi the chief magistrate in his judgment (see page 43 of the record of appeal) held

"In the instant case, the 1st accused person did not raise such a defence in his statement to the police as such, there is nothing on alibi that the police would have investigated. I hold therefore that the defence of alibi is not available to the 1st accused person."

On appeal to the High Court the court dealing with the plea of alibi held

"The default of the police to effect investigation of the defence of alibi raised by the 2nd and 3rd accused earned each of them the cheap victory. We hold that the appellant could not have been benefited from the glaring default of the police on discharge of their legal responsibility by investigating the defence. The appellant did not invoke it timeously as reqaired by law" 

The word "alibi" is a Latin expression meaning "I was elsewhere" the defence of alibi seeks to persuade the court that the accused person could not have been at the scene of the crime because he was somewhere else, where most probably they are people who could testify that at the time of the alleged act he was not at the scene of the crime. The purport of the defence is that one person cannot be at two places at the same time. See Sowemimo v. State (2004) 11 NWLR (Pt.885) 515.

The defence of alibi must be disclosed with necessary details and particulars at the earliest opportunity so as to put the burden on the police to check on them and deal with them with some finality. In Afolalu v. State (2010) 5 - 7 SC (Pt.11) Pg 93, Mohammed JSC said: 

"With regard to the Appellants' defence of alibi, the law is indeed well settled that where, as against the defence of alibi raised by an accused person there is a visual identification evidence of the accused by the Prosecution witness which the Court accepted and believed, such evidence will effectively destroy the defence of alibi raised."

See also Njovens v. State (1973) 5 SC 17. Madagwa v. State (1988) 5 NWLR (Pt.92) 60

See Esanebedo v. the State (1989) 4 NWLR (Pt. 113) 57.

Ndidi v. State (2005) 17 NWLR (Pt.953) CA 17.

See Onveebu v. State (1995) 4 NWLR (Pt.391) 510 SC.

Okosi v. the state 1989 1 NWLR (Pt.100) 642 at 659.

Ozaki v. the State (1990) 1 NWLR (Pt.124) 92. 

Nwabueze v. the State (1988) 4 NWLR (Pt.80 16.

In Eyisi v. State (2000) 15 NWLR (Pt.691) SC 555 Uwaifo J.S.C said:

"In order to be able to rely on alibi an accused must give a sufficient lead to the police at the earliest opportunity. The facts supporting it are not to be given half - heartedly or sprung upon the prosecution or the court. Alibi is a radical defence and simply means an accused was somewhere else at the material time an office was committed and could not possibly be at the scene to partake in it.

The PW4 the investigating police officer in evidence on oath said

"The accused persons denied the allegations claiming that they were not at home the time and day of incident. They individually mentioned some villages which they claimed they went. I invited them on two occasions for us to go to the said places but they refused to show up. During the investigation, I discovered that the land wherein the house was been built was in dispute."

PW4 in evidence stated that each of the three accused persons maintained they were in some village at the time of the act. The same witness when asked under cross examination that the three accused persons he was investigating were not arrested at the same time and that statements were obtained on different dates agreed that the appellant as 1st accused was arrested on 13/2/06 and his statement recorded that same date. From the testimony of the PW4 the appellant mentioned he was in some village. The appellant's statement to the PW4 did not contain any thing on where he was at the time of the act for which he is alleged to have committed the offence. The other two accused persons charged along with him, each stated specifically with particulars in their statement recorded by the same PW4 where they were at the time of the incident. Each of the 2nd and 3rd accused persons charged with him were acquitted for non investigation of the alibi, which each raised at the time they made their statement stating they were elsewhere on the date of the incident and the name of town. The appellant in his statement recorded 13/2/2006 said as follows: after the cautionary words, I reproduce for emphasis:

"I, of the above named and address, freely wish to state as follows: 

I know the complainant one Agude Adaji 'M' of Ajaka. The building he complaint against me I did not know where he build the house nor to go there destroyed the building. But we have a case on that land, my family and his own family, which the case is now pending in the court. We sit on the 06/02/06 in the court and the case adjoins for hearing again on 13/03/06 that is why he forms this allegation on me. But I did not know anything pertaining to his building. This is all my statement" 

From the contents of the reproduced statement it is absolutely clear that the appellant whilst making his statement did not raise the defence of alibi. The evidence of PW4 that each of the accused persons individually mentioned some villages they claimed they went to is not in the said statement and cannot be the basis for the appellant during trial to claim he raised the defence of alibi. The settled law is that the accused person wishing to raise the defence of alibi must raise it at the earliest opportunity to enable the police to investigate it. The accused must offer evidence as to where he was at the time of the crime. Once an accused person raises the defence of alibi, the onus is on the prosecution to disprove the alibi. The appellant had an evidential burden of eliciting some evidence with all necessary particulars which can be checked to show he was somewhere else. 

See Nwabueze & other v. The State (1988) 7 SC (Pt.11) 157.

Thus the duty to investigate the alibi rest on the police. It has been held by the appellate courts that failure to investigate alibi may be fatal to the prosecution's case.

See Sowemimo v. State (supra) Aiguoragtion v. State (2004) 3 NWLR (Pt.860) 367 SC. However the omission to investigate cannot be a carte blanche to set an accused person free, where there is positive evidence which fixes the accused person at the scene of crime at the material time. Once the court accepts, that evidence the alibi naturally collapses.

See Sunday v. the State (2010) 5-7 SC (Pt.11) pg.156. Adekunle v. The State (1989) 12 SC 203.

Patrick Njovens and Others v. the State (1989) 1.2 SC 203.

It is therefore the appellant that will set up the defence of alibi and the duty shifts to the police to investigate. PW4 in evidence stated that each of the accused persons denied the allegations claiming they were not at home the date of incident. This testimony cannot be construed to mean that the appellant raised the issue of alibi at the earliest opportunity. PW4 said further that they individually mentioned some villages which they claimed they went to and that they were invited on two occasions but they refused to show up. This evidence cannot sustain a defence of alibi. The appellant was the first to be arrested on 13/02/06. The investigating officer had ample time to investigate, if the appellant had given particulars at time of arrest but the appellant from the entire evidence did not. Furthermore during cross examination the appellant cross examined the PW4 but did not cross examine the witness on why he did not record the issue of alibi he raised at time of arrest and recording of statement. The purpose of cross examination is to contradict the evidence of a witness and thus create a doubt on the credibility of this witness. This was not done by the appellant. Furthermore, the appellant's statement under caution did contain any information that he was in any particular place and time at the time of the incident. If he had an oral conversation with PW4 the investigating police officer that he was in another village that information is very vital that he should have insisted on it being recorded in his statement. Appellants claim he told the PW4 is not supported by the contents of his statements nor the testimony of PW4. Inorder for a defence of alibi to be sustained an accused must give adequate particulars of the name of the place where he was and the time. The appellant did not supply any particulars. The defence cannot be raised at large.

See Balogun v. A.G Ogun State (2002) 6 NWLR (Pt.763) 512 SC.

His failure to state same as part of his statement under caution also vitiates any defence of alibi. A defence of alibi must be specific and the movement of that person with specific venue must be unequivocal. PW4 did not in evidence report that the appellant during investigation said he was in a particular place and time when the alleged act was committed. Appellant did not raise any defence of alibi at the earliest opportunity. The PW4s' evidence that the accused said they were not around at the time of event cannot avail the appellant. The appellant introduced during his evidence on oath the defence that he was elsewhere at the time of event when he stated that on 13/02/06 around 6:45am he went to the farm with his boy and returned at 2pm. This vital information was not given at the time he made his statement when the matter was still fresh in his memory. If the evidence he gave in court was same as his statement certainly, the police will be under a duty to investigate and check the reliability of the alibi.

See Onafowokan v. the State (1987) 3 NWLR (Pt.61) 538.

Onvegbu v. State (Supra).

When a defence of alibi is raised at the stage of trial the police will not have the opportunity to investigate.

It is my firm view that the appellant did not raise the defence of alibi at the time of arrest and investigation. The appellant did not record his statement but throughout the trial at the Magistrate Court he did not raise any objection as regards his statement to the police not containing all the facts he stated to PW4. He admitted the statement as his own during trial and is bound by the contents. The appellants claim that he raised the defence of alibi and that PW4 did not record same is an afterthought and cannot be the basis for any doubt as envisaged under the criminal procedure. The standard of proof in a criminal trial is proof beyond reasonable doubt on the prosecution. Infact there must be evidence which identified the person accused with the offence, and that it was his act that caused the offence. The PW2 and PW3 testimony as found by the trial court fixed the appellant to the scene of crime. Once prosecution adduces sufficient and acceptable evidence to fix a person at the scene of crime at the material time, his alibi is logically demolished and that is enough to render the plea ineffective.

See Ndukwe v. the State 37 NSC (2) QLR 425. Furthermore, it is not automatic that failure to investigate an alibi will result in failure of the prosecution.

See Odu & Anor v. the State (2001) 5 S.C (Pt.1) 153

Consequently the weak and belated defence of alibi is outweighed by the evidence of PW2 and PW3 presented. I therefore hold that the Magistrate Court adequately considered the defence of alibi raised by the appellant at the trial and rightly rejected same. The court below rightly confirmed same. 

See Sunday v. State (2010) 18 NWLR (Pt.1224) SC 223

From the forgoing it is my firm view that the trial court rightly held that the appellant did not raise the defence of alibi timeously, therefore the possibility of raising doubt does not exist. I therefore resolve Issue one against the appellant in favour of the respondent.

Under Issue 2, whether the appellant is not entitled to the defence of bonafide claim of right. The learned counsel for the appellant argued that there is a land dispute between the appellant and PW1 and that the building the subject matter of the criminal complaint is situated on the land in dispute and that the building was erected during the pendency of the suit, it is his contention that assuming without conceding that the appellant was responsible for the allegation leveled against him one will say he is entitled to the defence of bonafide claim of right. It is his submission that once an accused person raises by his evidence a claim of right in an offence involving property with which he is charged such as malicious damage to property, the burden is on the prosecution to prove the absence of claim of right made in good faith because that defence negatives the requisite mens rea.

He cited Nwakire v. C.O.P (1992) 5 NWLR (Pt.241) 289 at 304.

It is learned counsels further submission that the appellant was entitled to the defence of bonafide claim of right and ought to have been discharged by the lower court. He further contended that, had the court below followed the decision in Nwakire v. COP (Supra) he would have concluded that the defence of bonafide claim of right was available to the appellant.

Learned counsel for the respondent submitted that the defence of bonafide claim cannot avail the appellant as the appellant did not raise the defence at all in the trial magistrate court and in the same vein, the bonafide claim of right was not canvassed in the course of arguing the appeal before the appellate High Court. It is his submission that the jurisdiction of the High Court of Justice, Kogi Sate was purely appellate and that an appellant cannot commence a new case at the stage of appeal.

Learned counsel submitted that no leave was sought and obtained to raise the fresh issue of bonafide claim of right in this court. He cited Oredovin v. Arowolo (1989) 4 NWLR (Pt114) pe 172. Ilona v. Idakwo (2003) 5 SC Pg 216.

It is his further submission that the Supreme Court's decision in Nwakire v. C.O.P (Supra) is of no relevance to the appeal because the facts and circumstances in that case are fundamentally different from the instant appeal. It is his contention that the defence of bonafide cannot avail the appellant because the ingredients of the said defence are not present in this case.

Mr. Abraham's in the respondents brief has raised a vital point on the defence of bonafide claim of right argued in the appellant's brief of argument. The point raised by the learned counsel can best be described as an objection to ground 3 of the Notice of Appeal. 

The general practice is that a respondent who intends to rely upon a preliminary objection to the hearing of the appeal shall file a notice to give the appellant notice of the objection. The appellate courts have allowed notices of preliminary objection incorporated in briefs and argued therein as a proper mode of raising an objection to the appeal. The purport of filing a notice of preliminary objection is to place the appellant on notice on the intention of the respondent and the grounds of objection to avert surprise. The court in exercising its discretion whether to allow an objection raised in respect of a ground of appeal in a brief without a formal notice must do so judiciously bearing in mind the settled law on what a ground of appeal should contain. Furthermore, the appellate court cannot ignore any argument that has drawn the attention of the court to the fact that a ground of appeal did not arise from the decision of the court below. For the court to technically hold unto the non filing of a Notice of objection as basis of not considering the argument of respondents counsel will amount to wrong exercise of discretion. The court has the discretionary power to look at the argument in support of the objection to a ground of appeal. Order 6 rule 3 of the court of appeal rules 2007 gives the court the power to strike out on its own motion or when moved by the respondent any ground of appeal not permitted under this rule.

It is on this premise that I will consider the merits of the respondents' argument. I must quickly note that the appellate did not file a reply brief. In effect he had the opportunity to respond to the point raised by the respondent, on whether the defence of bonafide claim of right was determined by the trial court and the court below. The appellant failure to file a reply brief indicates his intention not to respond. He has an option. Order 17 rule 5 of the court of appeal rules 2007 provides, that an appellant may file a reply brief which will deal with new points arising from the respondents brief. Order 17 rule 10 proceeds further to state that where an appellant fails to file a reply brief within fourteen days from the date respondent served him his brief, he shall be deemed to have conceded all the new points or issues arising from the respondents brief.

The powers of court of appeal in regards to determination of appeal are by way of rehearing. It is a continuation of an original suit rather than an inception of a new action. The re-hearing entails a hearing on printed records of appeal by reexamining the whole evidence before the trial court forwarded to the appellate court. Therefore an appeal should be a complaint against the decision of a trial court. Thus when there is no decision on a point there cannot possibly be an appeal against what has not been decided against a party unless leave to raise fresh issue is sought and granted.

See Babalola v. State (1989) 4 NWLR (Pt.115) 264 SC.

Oredoyin v. Arowolo (1989) 4 NWLR (Pt.114) 172.

The Court below sat as an appellate court in respect of the decision from the Magistrate Court. The court below is constrained to look into competent grounds of appeal that arose from the decision of the Magistrate Court. I have scrutinized the judgment of the trial court, I find no decision contained therein on the defence of bonafide claim of right. The trial Judge dealt in detail the issue of whether the action of the accused person was justified after his finding that there was damage, the court said nothing on bonafide right. Therefore the ground of appeal on bonafide right did not arise from the decision of the trial court, I have looked at the Notice of Appeal against the decision of the Chief Magistrate Court (See Pg 1 -2 of record of appeal). The three grounds of appeal did not contain any complaint on bonafide claim of right. I have also observed from the three issues distilled in the appellants and respondents brief that there is no defence of bonafide claim raised therein for determination by the high court. The defence of bonafide right arose in the appellants' submission where counsel argued that even if appellant was seen at the scene of crime his act was that of a bonafide right.

It is trite that arguments of counsel cannot substitute evidence presented before the court.

See Oduwole v. David West (2010) All FWLR (Pt.532) SC 1643. Equally a counsel no matter how eloquent he presents an argument cannot derail from the issues formulated and submitted to the court for determination, which issues arose from the grounds of appeal. The briefs or addresses of counsel on appeal shall contain the issues arising in the appeal. The exception to the rule is where leave of court has been sought and obtained by an appellant to raise a fresh point not decided in the trial court on appeal.

The court below considered the argument on the defence of bonafide right raised in the appellants brief when the defence is a fresh issue. It is not part of the ground of appeal. There is also no evidence in the record that the appellant sought leave of court to raise the fresh issue. The duty of the court below is to correct the errors of the trial judge in his judgment in respect of the charge. The rationale of the appeal process is that the appellate court should have the benefit of the view of the trial court from which the appeal emanates. Therefore the appeal to the High Court from the decision of the magistrate court should be on decision of the Magistrate Court over issues framed by counsels based on the facts of the case in the trial court and duly canvassed and decided against the appellant.

See Adeeoke Motors Ltd v. Dr. B. Adensanva and another (1989) 3 NWLR Gt.109) 250 Per Oputa JSC 

The appellant in the instant appeal did not raise the defence of bonafide right in the notice of appeal against the decision of the magistrate court but raised same in the notice of appeal filed against the decision of the High court. Ground three (3) of the notice of appeal filed in this court reads thus: (see page 77 of the record of Appeal) 

"The learned appellate Judges of Kogi State High Court, Owonibi and Husseini J. J, erred in law when they refused to follow the decision of the Supreme Court in the case of Nwakire vs. Cop (1992) 6 SCNJ (Pt.1) 1. and on the basis of this error proceeded to affirm my conviction and sentence for the offences of criminal trespass and mischief when it is clear that: 

(i) The defence of bonafide claim of right was available to me

(ii) There was evidence on the printed record that the land, upon which I was alleged to have committed the offences, is a subject of litigation in the high court sitting at Idah, between my family and the family of PW1, PW2 and PW3.

(iii) Their lordships were bound by the decision of the Supreme Court in the case of Nwakire vs COP, (Supra) to the effect that "what is essential is that the appellant believed honestly that he had the right to remove the pole from his land. It is immaterial that he acted in an "uncivilized way" or unreasonably."

This aforesaid ground 3 arose from the decision of the court below as an appellate court but is not the ratio decidendi of the judgment of the trial court. In this appeal, it is obvious ground 3 is on a new issue not raised and contested in the trial court but contested in the high court without leave. It is not an issue incidental to the points canvassed at the trial court. It is a point not raised in the notice of appeal to the court below. The court below should have refused to entertain the argument of counsel that is not founded on the 3 issues raised for determination in the court below. An appellant will not be allowed to raise a point or issue that was not raised or argued at the trial court without seeking and obtaining leave of court first, except where clear issue of jurisdiction is raised.

See Eluebe v. Omokhafe (2004) 18 NWLR (Pt.905) 319. The new issue on law was raised without the leave of High Court or this court. More fundamentally it was not based on the decision of the trial court. 

Consequently, ground 3 of the notice of appeal is incompetent and hereby struck out. Issue 2 distilled from the incompetent ground 3 has no basis to stand so same Issue is struck out.

Under Issue 3, whether the appellant was properly convicted and sentenced for the offences of criminal trespass and mischief. Learned counsel for the appellant submitted that the evidence of PW2 and PW3 are not credible because both are children of the complainant, that they are students that should have been in school and that PW2 purports to be 17 years and PW1 gave his age as 30 years which means he is only younger by 13 years which is impossible.

He cited Okonkwo v. State (1998) 4 NWLR (Pt.544) 142 at 154

where this court per Akpabio JCA held that evidence of a near relation in a criminal case must be suspiciously regarded and cautiously accepted. It is his further contention that with the discharge and acquittal of the 2nd and 3rd accused persons based on the fact that evidence of PW2 and PW3 were of doubtful veracity, the appellant ought to have been discharged and acquitted.

He cited Ebri v. the State (2004) All FWLR (Pt.216) 420 at 432. Uwani v. The State (1988) 4 NWLR (Pt. 90) 503.

Adele v. the State (1995) 2 NWLR (Pt.377) 269

He submitted that the appellant was not properly convicted and sentenced by the court below.

The learned counsel for the appellant rightly stated the position of the law that where the evidence against two accused persons in a criminal case is in all material respect the same and a doubt is resolved by the trial court in favour of one of the accused person, the same doubt should also be resolved in favour of the other person, in effect if one person is discharged and acquitted the other should also be discharged and acquitted.

See Ebri v. State (2004) (Supra) Akpan v. State (2002) (Supra) Adele v. State (1995) (Supra).

The onus is on the prosecution in a criminal matter to establish an offence beyond reasonable doubt. Thus any doubt must be resolved in favour of the accused person.

See Okonji v. the State (1988) 4 NWLR (Pt.90) SC 503. The crux of this issue 3 is whether this is a case in which there is a doubt which ought to have been resolved in favour of the appellant. The trial court discharged and acquitted the 2nd and 3rd accused persons charged with the accused person because the alibi they raised in their statement was not investigated. The trial court placed the evidence of the PW2 and PW3 side by side with the defence of alibi and found that there is doubt as to the presence of the 2nd and 3rd accused persons at the scene of crime on the day of the incident. He resolved the doubt in their favour sustaining the defence of alibi. The material facts relating to the 2nd and 3rd accused person is not the same as to the 1st accused person. 

The learned trial Judge found from the evidence of PW2 and PW3 that the appellant was seen on the land with many other persons. The witnesses were very certain that the appellant was at the scene. The trial court considered the ingredients of the offence under S.348 of the panel code and made the following findings based on credible evidence adduced (a) that the complainant was in possession as he had built the damaged house in the land in dispute (b) that the appellant entered upon the property and with others destroyed the building. The court then concluded that the prosecution has proved the charge of criminal trespass beyond reasonable doubt.

In order for the prosecution to sustain a conviction under S.348 of the Panel Code they must prove the following (1) that the complainant was in possession of the property in question (2) that the accused entered into or upon the property. (3) That he so entered or remained there with the intention to commit an offence or annoy the person in possession. These ingredients of the offence were established by the prosecution witnesses. PW2 and PW3 testified that the appellant was seen on the land where their father built a house, this evidence was not contradicted. The appellant in his statement denied knowledge of the building but at trial agreed he is aware the building on the land belongs to PW1, there is evidence the building was damaged and also unchallenged evidence that appellant was at the scene during the damage. The trial court under the charge of mischief contrary to S.327 of the penal code carefully considered each ingredient of the offence before arriving at a finding that the appellant led a group of persons to destroy the building and intended to cause damage to PW1. The court from the evidence found that the building was actually destroyed, and that the action of the appellant was not justified notwithstanding the land dispute pending in court. The trial court rightly found the PW2 and PW3 as witnesses of truth contrary to what the learned counsel for the appellant contended in his brief. I must say that the learned trial judge meticulously xrayed the ingredients of the offences charged and the credibility of the witnesses before arriving at a decision. The PW2 and PW3 evidence on what happened when they got home and reported reflects discrepancy however the inconsistency is not on material facts as to render the evidence unreliable.

  In a catalogue of decided cases the appellant courts have laid down the principle that before any conflict or contradictions or discrepancies in the evidence of the witnesses for the prosecution can be fatal to the prosecution's case the contradictions must be substantial or fundamental to the main issue in question before the trial court and thus create some doubt in the mind of the trial court. It is then that an accused is entitled to benefit therefrom. 

See Afolalu v. State (Supra) Chukwu v. State (1996) 7 NWLR (Pt.46)686.

Algbadion v. State (2000) 4 SC (Pt.1) 1.

Therefore, I agree with the decision of the trial court that the contradictory evidence is not of magnitude to create doubt and destabilize the conviction and sentence of the appellant. There is no doubt arising from the evidence of the witnesses before the trial court. The credibility of witnesses and the appraisal of evidence and the confidence reposed in the testimony of any witness is essentially the function of the trial court that saw, heard and watched the witnesses testify. 

See Omotayo v. Co-operative Supply Association (supra) 

The appellate court is constrained to rely on printed evidence vide record of appeal and will not interfere with the finding of the trial court unless the finding and decision are not in line with the evidence lead or perverse.

I am of the firm view that the trial court clearly evaluated the evidence of the parties and justifiably appraised the facts. It is therefore not the business of this court to substitute its own views. The findings of the trial court are supported by the evidence on record.

See Odofin v. Ayoola (1984) 11 SC. 72 at 113.

The learned trial judge having played this role effectively and satisfactorily by evaluating the evidence before him and holding that the prosecution established the case against appellant beyond reasonable doubt and the court below having affirmed these findings, conviction and sentence on appeal. I find no reason to disturb the conviction and sentence. This appeal is devoid of merit and is hereby dismissed. I affirm the decision of the trial court and the court below on the conviction and sentence of the appellant.

PAUL ADAMU GALINJE, J.C.A.: My learned brother Nwodo JCA satisfactorily considered all the issues raised by both parties in this appeal. I agree that the appeal lacks merit and same ought to be dismissed. 

I accordingly dismiss the appeal and affirm the conviction and sentence passed on the Appellant.

JIMI OLUKAYODE BADA, J.C.A.: I have had the privilege of reading in draft the Judgment just delivered by my learned brother, NWODO JCA. I entirely agree with the reasoning and the conclusions reached by my Lord in the said Judgment. I adopt them as mine and have nothing to add.

I also affirm the decision of the trial Court and the Court below on the conviction and sentence of the Appellant.

 Appearances