UKEJE V THE STATE

UKEJE V THE STATE


IN THE COURT OF APPEAL
IN THE OWERRI JUDICIAL DIVISION
HOLDEN AT OWERRI

ON THURSDAY, 4TH MAY, 2017


Appeal No: CA/OW/241C/2014

CITATION:

Before Their Lordships:

RAPHAEL CHIKWE AGBO, JCA

AYOBODE OLUJIMI LOKULO-SODIPE, JCA

TUNDE OYEBANJI AWOTOYE, JCA


BETWEEN

KALU UKEJE
(APPELLANT)

AND

THE STATE
(RESPONDENT)


PRONOUNCEMENT


A. APPEAL
1. Interference with Findings of Facts – When the appellate Court is allowed to interfere with findings of facts of a trial Court
Attitude of appellate courts to findings of fact made by a lower court

As an appellate Court, the law forbids us from disturbing in the findings of facts of a trial Court unless the findings are perverse. See Tsokwa Motors (Nig) Ltd V U.B.A. PLC (2008) 2 NWLR (Pt 1071) 347 at 364 – 365, Okolo V Uzoka (1978) 4 S.C. 77, Ebba V Ogodo (1984) 1 SC.N.L.R. 372, Oyakhire V State (2007) ALL FWLR (Pt. 344) 1 at 10, Abdullahi V The State (1985) NWLR (Pt. 3) 523.

In Abdullahi V The State (Supra) Kawu JSC, in his lead judgment, had this to say on this point:-

“It has been established by several authorities that a Court of Appeal must approach the findings of fact of a trial Court with extreme caution. This is because a Court of Appeal has not the advantage which the trial judge has enjoyed of seeing the witnesses and watching their demeanor. A Court of Appeal would only disturb the findings of fact of a trial Court where it is satisfied that the trial Court had made no use of such an advantage. If the trial judge has evaluated the evidence before him, it is not for the Court of appeal to reevaluate the same evidence and come to its own decision. See State V Nafiu Rabiu (1980) 7-11 SC. 130 and Nasamu V The State (1979) 6-9 S.C. 153, 161 and A. M. Akinloye V Bello Eyiyiola & Ors (1968) N. M. LR 92 at 95.” Per AWOTOYE, JCA. read in context

B. COURT
2. Appellate Court – What the primary concern of an appellate Court should be
The function of an appellate court

In my view, the decision of the Learned Trial Judge is right and this should be the primary concern of an appellate Court. See Odukwe V Ogunbiyi (1998) 8 NWLR (Pt.561) 338 at 350; Olubode V Salami (1985) 2 NWLR (Pt 7) 232; Gwonto V The State (1983) 1 SCNLR 142 at 152; Chukwuma (A.K.A. Daddy) V FRN (2011) 5 S.C.J 40 at 67.

An Appeal Court is to consider whether the decision of the Trial Judge was right and not whether his reasons were. Per AWOTOYE, JCA. read in context

C. CRIMINAL LAW AND PROCEDURE
3. Identification Parade – The proper means of carrying out identification parade
Procedure for a formal identification parade

In Bozin V The State (Supra), Oputa J.SC. explained the procedure thus;

“The identification of a suspected person must be very carefully conducted and it is very wrong to point out the suspected person and ask “Is that the man?” The usual and proper way is to place the suspected person with a sufficient number of others and to have the identifying witness pick out the accused without any assistance – the case of Thomas V. Chapman (1911) 7 CR. APP. R. 53 at 54.” Per AWOTOYE, JCA. read in context

4. Identification Parade – When identification parade becomes essential
When it will be necessary to conduct an identification parade

An identification parade is necessary where:-

“i. The victim did not know the accused before and his first acquaintance with him was during the commission of the offence.
ii. Where the victim or witness was confronted by the offender for a very short time.
iii. Where the victim due to time and circumstance might not have had full opportunity of observing the features of the accused. See Nwaturuocha V The State (2011) LPELR – 8119.” Per AWOTOYE, JCA. read in context

5. Identification Parade – When identification parade will not be necessary
Circumstance where an identification parade would not be necessary

Where a witness had ample opportunity to identify the accused person an identification parade is not necessary. See Eyisi V The State (2000) 15 NWLR (Pt. 691) 555 where Onu J.SC. had this to say:-

“Identification parade is only one way of establishing the identification of an accused person in relation to the offence charged. It is a misconception of the law to say that it is the only valid way as it is being suggested by learned counsel in this issue. Where for instance the accused person is well known to the witness before the day of the commission of the offence alleged, there can be no need for an identification parade. Similarly, where the witness had ample opportunity to identify the accused person as in the case on hand, I would not think an identification parade was necessary.” Per AWOTOYE, JCA. read in context


LEAD JUDGMENT DELIVERED BY AWOTOYE, JCA


This is the judgment in respect of the appeal filed on 16/1/2014 by the Appellant against the judgment of Abia State High Court delivered on 13/11/2013.

The charge against the accused now the Appellant read thus:

“AT THE SESSION HOLDEN AT ABA On Tuesday, the 18th day of May, 2010, the Court is informed by the Attorney-General of Abia State on behalf of the State that KALU UKAEJE is charged with the following offence:

STATEMENT OF OFFENCE

MURDER, contrary to Section 319(1) of the Criminal Code 30, vol. II, Laws of Eastern Nigeria 1963 application in Abia State.

PARTICULARS OF OFFENCE

KALU UKEJE, on the 18th day of October, 2009 at Okoro road/Ibadan Street Junction, Aba in the Judicial Division murdered SUNNY NWADIKE.”

The charge was read and explained to the accused. The learned trial Judge proceeded to hear the parties and subsequently found the accused guilty in the following terms:-

“As stated earlier, the prosecution is duty bound to prove its case beyond reasonable doubt, proof beyond reasonable doubt is not attained by the number of witnesses filed by the prosecution. It does not mean beyond all shadow of doubt. If the evidence is strong against a man, as to leave only the remote possibly in his favour, which can be dismissed with the sentence “of course it is possible, but not in the least probable”, the case is proved beyond reasonable doubt. See Bazil Akalezi Vs State (1993) 2 NWLR (Pt. 273) 1. In the instant case, I am satisfied that the prosecution has proved its case beyond reasonable doubt, it has proved the element of the offence with the accused is charged that the accused was the person intentionally inflicted fatal, grievous machete cuts on the deceased and set him ablaze and that his act was intentional with the knowledge that such injuries would cause death. He murdered the deceased in cold blood. I find him guilty as charged.”

Aggrieved by the above decision, the Appellant filed Notice and grounds of appeal on 16/1/2014. His notice contains 4 grounds of appeal:-

“GROUNDS OF APPEAL

GROUND ONE

The Learned Trial Judge in the Court below erred in law when the prosecution did not prove the identity of the convict charged to Court and yet the learned Trial Judge accepted and acted on the evidence of the prosecution in convicting the accused of the offence of murder.

PARTICULARS OF ERROR

a) There was no reliable evidence of eye witness linking the convict with offence of murder charged to Court.

b) PW1 and PW2 who were the close relations of the convict did not witness the incident – the murder of the deceased by the convent.

c) PW1 and PW2 did not call those who told them that the deceased was being murdered by the convict.

d) It is submitted that the evidence of PW1 – father of the deceased and PW2 – the sister of the deceased were unreliable since they did not call to give evidence in Court those who told them of the murder of the deceased by the convict; nor did they mention PW3 and PW4 in their evidence.

GROUND TWO

The Learned Trial in the Court below erred in law when he left the realm of factual evidence – eye witnesses evidence to rely or resort on circumstantial evidence in finding the convict of murder of the deceased – one Elvis Chinaka Sunday Nwadike on the 18th day of October, 2009 at Okoro Road/Ibadan Street Junction, Aba.

PARTICULARS OF ERROR

a) The prosecution in proof of its case called 6 witnesses PW1 – Boniface Maduabuchi; PW2 – Ogechi Grace Nwadike – sister of the deceased.

b) PW3 – Andrew Osuji; PW4 – Ernest Nnawuihe George; PW5 – Ekpechi George and PW6 – Barnabas Ogu – the Police Officer who investigated this case.

c) In the course of reviewing the evidence of the six witnesses, the Learned Trial Judge stated mid way “with regard to evidence of PW4, it is my view that his evidence as to how he identified the accused/convict at the police station was vague, and I have placed no reliance on this witness, regard to the evidence of PW5, his evidence contradicts the evidence of PW2. She said that at the scene she did not let anyone know the victim was her brother; but PW5 said that at the scene PW2 was shouting that the victim was her brother. I also do not believe that he followed her to her house and I have placed no reliance on the evidence

d) This means that the Learned Trial Judge in the Court below disbelieved the evidence of 3 witnesses out of the six witnesses that testified in the Court below.

e) Out of the witnesses that testified in the Court below, the Learned Trial Judge rejected the evidence of three witnesses and accepted the evidence of three remaining witnesses.

f) The witnesses were enough to convict the accused of murder if he actually committed the offence of murder of the decease based on the critical review of the evidence of the prosecution – witnesses.

g) None of the prosecution witnesses stated in their proof of evidence and testimony in Court that he saw accused kill the deceased.

GROUND THREE

The learned Trial Judge in the Court Below erred in law when he abandoned the evidence of witnesses he accepted out of six witnesses and resorted to rely and acted on circumstantial evidence to convict the accused of murder of the victim – one Elvis Chinaka Sunday Nwadike on 18th October 9.

PARTICULARS OF ERROR

a) As submitted by the defence counsel in the Court below, the failure of the prosecution to call the tenants of the house where the deceased ran for protection and the old woman who pleaded on behalf of the deceased was fatal to the prosecution’s case. See Section 167(1) of the Evidence Act 2011.

b) No single witness or eye witness of the seven people arrested by Ndiegoro Police Station, Cameroon Road Police Station, Aba was called or invited to testify in this case. Rather the 7 witnesses were discharged by the Police authorities of the said Police State Aba.

c) The evidence and proof of this case was fought on the eye witnesses of the witnesses called by the prosecution.

d) The charge before the Court below was murder and six witnesses were listed on the proof of evidence filed in Court by the prosecution.

e) The Court below was not invited to pick and choose from the proof of evidence filed in Court or to rely on circumstantial evidence to try to establish the guilt of the convict.

f) It is wrong in law, and the judgment of the Court below perverse when the earned Trial Judge held inter alia

“it is not a condition or legal imperative that there must be an eye witness or real evidence before a murder charge can be proved beyond reasonable doubt, proof of the commission of the offence may proceed on circumstantial evidence”.

GROUND FOUR

The Judgment of the Court below is unreasonable, unwarranted and cannot be supported having regard to the weight of evidence led in the Court below.”

The record of appeal was transmitted to this Court on 27/6/2014. Parties subsequently filed and exchanged briefs of argument.

The Appellants brief was filed on 19/1/16. The brief was prepared by P. O. Ehiogu, his counsel. The Respondents’ brief of argument was filed on 5/12/16. It was settled by A. U. ONUKWUBE Director of Public Prosecutions, Ministry of Justice Abia State.

P. O. Ehiogu, on behalf of the Appellant formulated 3 issues for determination to wit:-

– Whether the prosecution proved and or whether the Court below acted and convicted the Appellant on the unproved evidence of the prosecution and convicted the Appellant of the capital offence of murder.

– Whether the Learned Trial Judge in the Court below was right to leave reliance of eye witness evidence (direct evidence) and resort to circumstantial evidence in convicting the Appellant of the offence of murder.

– Whether the judgment of the Court below was not reasonable, unwarranted and unsupportable having regard to the weight of admissible evidence.

A. U. Onukube for the Respondent formulated one sole issue for the determination of the Court as follows:-

Whether having regards to the quality of evidence adduced in this case, the conviction of the Appellant for murder was justified?

I have deeply considered the issues formulated by both counsels. I am convinced that the sole issue formulated by Respondent’s counsel is apt and wide enough for the just determination of this appeal. I therefore adopt same for the determination of this appeal.

ARGUMENT OF COUNSEL AND RESOLUTION

Learned Appellant’s counsel submitted that the prosecution failed to disclose the identity of persons who were on Police parade neither did they disclose the outcome of the identification parade. He cited Alibi V The State (1993) 9 SCNJ. 109, 120.

He argued further that the statements of the persons arrested at Ndiegoro Police Station Aba, did not form part of the proof of evidence filed in Court.

Learned counsel further contended that the identity of the Appellant in the commission of the murder offence was not proved by the prosecution. He added that a petition addressed to the Inspector general of Police in regard of this case was not tendered in the proof of evidence.

Learned counsel for the Appellant posited that the learned trial Judge refused to place reliance on the evidence of 3 of the prosecution witnesses but instead relied on circumstantial evidence to erroneously convict the accused. He relied on The State V Ogbubunjo & Anor (2001) 83 L.RC.N. at 152, Ahmed V The State (2001) FWLR (Pt. 34) 2001 p. 438 at 455-456, Balogun V A-G Ogun State (2002) 19 I.N.R.N. 18.

He urged the Court to allow the appeal as the judgment of the trial Judge was perverse.

A. U. Onukube for the Respondent submitted that evidence was said to be sufficient when it proved the charge against an accused person beyond reasonable doubt. He cited Edanine V State (1996) 3 NWLR. (Pt. 438) 530 at 539; Annabi V State (2008) 13 NWLR (Pt. 1103).

Learned D.P.P. referred to the evidence adduced and the identification of the Appellant. He urged the Court to hold that the identification of the Appellant was in order. He cited BOZIN V STATE (1985) 2 NWLR (Pt. 8) 465 at 472.

He submitted that the prosecution proved all the ingredients of the offence. He cited Sule V State (2009) 17 NWLR (Pt. 1188) 471 at 495.

He further referred to the inconsistencies in the statements of the accused which according to him rendered his defence unreliable. He cited SULE V STATE (Supra).

He urged the Court to affirm the decision of the lower Court by resolving the sole issue in favour of the Respondent.

I have carefully considered the submissions of learned counsel on both sides.

What evidence was adduced by the prosecution against the accused? PW1 Boniface Maduabuch Nwadike was the father of the deceased. PW2 Ogechi Grace Nwadike was senior sister of the deceased. Both did not witness the murder of the deceased.

PW3, was Andrew Osuji. He gave evidence inter alia thus:-

“I remember the 18th October, 2009. I also member one Boniface Nwadike. I recall what happened between 2pm – 4pm. The 18/10/2009 was a Sunday and after the Church service we had a brief meeting in Church after which I went home. On my way home at Ibadan Street by Okoro Street, the road I would take to my house. I saw people running so I also ran. I was running asking what was happening. I was told it was Bakassi and they mentioned one ‘Kalu’. I told them I did not know the person. After sometime I went back to the road to get to my house. On getting there, I saw one member of Bakasi holding a boy. The man had a slung on his arm and a machete in the other. The boy was pleading with the man and in the process brought his ID Card. The man gave the boy a machete cut. There was a woman who came to the scene she held him begging the man to leave the boy. She was an elderly woman he pushed her and she fell. When I saw the woman had fallen I and other were moved to beat the Bakasi man but before we could do so we heard a gunshots it was then we realized that other members of Bakasi were around. People then started running and we all ran away. By the time I turned back to go home, I saw that the boy had been killed and was burning. He held the boy by his arm and gave him a machete cut. I can identify the Bakasi man if I see him. (witness points to the accused).

He further said in his evidence:-

“I went with them to the police at Umuahia and I told the Police all that I know. They asked if I would be able to recognize the person who killed the boy if I see him. The police then brought out many people in on open field and they stood in a line. They asked me to identify the person who I saw that day. I then identified the 1st accused person. They then took a photograph of both of us and asked me to go. That is all.”

Ernest Nwawuike George gave evidence next. He said inter alia:-

“We saw a crowd gathered. I went close to the place the people were gathered. I saw one black Mercedes 190 Car heading towards us the next thing I heard was a gun shot. I then moved I and saw a very tall man getting out from the Mercedes Benz Car and heard another gun shot. When I heard the gun shot, I also saw another tall person get out from the vehicle and go to back of the vehicle he opened the booth of the vehicle I was him bringing an average boy out of the both of the vehicle. I can’t estimate the age of the boy. I saw one of the men who I can recognize if I see him slap the boy then cut him with a machete. The boy ran into a compound and the man went to the compound held the boy and brought him out. This man I referring to is the man who brought the boy out is the man who brought the boy out of the booth. He brought the boy near the vehicle. People were shouting “Kalu Obu Ngwangwa” that was the man’s name. I was the when I saw the man gave the man a machete cut on his arm blood rushed out. The boy started crying he said he was a student and could produce his ID Card to prove it. The person called “Kalu Obu Ngwangwa” took the ID Card from the boy machete cuts. People started shouting that he had killed the boy. He fell to the ground. When the boy fell, the man went to the people selling fuel nearly and took fuel and tyre, blood was rushing out of the boy. He took a lighter and set the boy ablaze. We then left the scene and went to look for Celestine. I later saw him. This incident took place at 2:30 – 3pm. I can identify the person called “Kalu” (witness looks around the Court and point out the 1st accused person).”

PW5 gave evidence next. He said (among others things) as follows:-

“I live at No. 22 Ugoala Street Aba. I am a kekedriver. I know the 1st accused person. I know him as a member of Bakasi. I remember the 18th day of October, 2009. On that date I left my house to go to Ibadan Street around 3pm when I got to Ibadan by Okoro Street I saw people gathered. On getting there I saw 1st accused Kalu, the Bakasi man, he was holding a young man who he was cutting with a knife. The Bakasi man is the 1st accused person (he point at 1st accused). The boy was crying saying he did nothing he was shouting, his ID Card, but he continued to give him machete cuts until he killed the boy. He then went to a nearby Vulcanicer where he took a tyre and fuel and set the boy ablaze.”

The witness identified the 1st accused at an identification parade on 26/11/2009. He said:-

“He said that we should go to the Police Station at Umuahia to make a statement. We went there on the 26/11/2009. There I made a statement to the Police. After the statement I was asked if I could identify the person I saw. They then brought several people and I identified the 1st accused person.”

In his defence, the accused himself though denied murdering the deceased admitted that he was a member of Abia State Vigilante Service a.k.a. Bakasi:-

“CROSS EXAMINED BY MR. NWALOCHA Question: you have a house at No: 109 Ibadan Street, Aba?

Answer: that is where I lived before.

Question: that house is a family house?

Answer: No.

Question: No. 109 Ibadan Street is at the Junction of Ibadan by Okoro Street?

Answer: No.

Question: it is close to the junction?

Answer: No, it is not.

Question: you told the Police that on the date of the incident you heard that armed robbers were operating at Okoro by Ibadan Street?

Answer: No.

Question: that is your statement to the police on 22/11/009

Answer: that is not what I told the Police.

Question: Counsel reads out the portion of the statement. Do you still say it is not what you told Police? Answer: it is not what I told the Police

Question: you are a member of Bakasi Vigilante Group?

Answer: I am a member of the Abia State Vigilante service.

Question: aka Bakasi?

Answer: I do not know.

Question: as a member of that Vigilante Group one of your duties was to respond to armed robbery attacks?

Answer: unless a report is made to our office and it is given to me. I would not respond.

Question: As at 18 March 2009 you were not serving in Aba but at Umuahia?

Answer: yes.

Question: your presence at the scene of the incident on 18/10/2009 was not official?

Answer: I did not go to the scene on the date of the incident.”

The Learned Trial Judge who saw and heard the witnesses also believed them. Particularly in page 195 of the record of appeal his Lordship held thus:-

“Even though I am satisfied and believed that PW3 witnessed the incident and identified the accused, the prosecution does not always need an eye witness account to convict an accused of murder.”

As an appellate Court, the law forbids us from disturbing in the findings of facts of a trial Court unless the findings are perverse. See Tsokwa Motors (Nig) Ltd V U.B.A.Plc (2008) 2 NWLR (Pt 1071) 347 at 364 – 365, Okolo V Uzoka (1978) 4 S.C. 77, EBBA V OGODO (1984) 1 SC.N.L.R. 372, Oyakhire V State (2007) ALL FWLR (Pt. 344) 1 at 10, Abdullahi V The State (1985) NWLR (Pt. 3) 523.

In Abdullahi V The State (Supra) Kawu JSC, in his lead judgment, had this to say on this point:-

“It has been established by several authorities that a Court of Appeal must approach the findings of fact of a trial Court with extreme caution. This is because a Court of Appeal has not the advantage which the trial judge has enjoyed of seeing the witnesses and watching their demeanor. A Court of Appeal would only disturb the findings of fact of a trial Court where it is satisfied that the trial Court had made no use of such an advantage. If the trial judge has evaluated the evidence before him, it is not for the Court of appeal to reevaluate the same evidence and come to its own decision. See State V Nafiu Rabiu (1980) 7-11 SC. 130 and Nasamu V The State (1979) 6-9 S.C. 153, 161 and A. M. Akinloye V Bello Eyiyiola & Ors (1968) N. M. LR 92 at 95.”

Were the findings of facts of the lower Court perverse? The grouse of the Appellant’s counsel is that the Appellant was not properly identified by the witnesses. Learned counsel faulted the identification parade conducted.

The law on identification parade had been brilliantly explained by Appellants counsel in his brief of argument.

In Bozin V The State (Supra), Oputa J.SC. explained the procedure thus;

“The identification of a suspected person must be very carefully conducted and it is very wrong to point out the suspected person and ask “Is that the man?” The usual and proper way is to place the suspected person with a sufficient number of others and to have the identifying witness pick out the accused without any assistance – the case of Thomas V. Chapman (1911) 7 CR. APP. R. 53 at 54.”

An identification parade is necessary where:-

“i. The victim did not know the accused before and his first acquaintance with him was during the commission of the offence.

ii. Where the victim or witness was confronted by the offender for a very short time.

iii. Where the victim due to time and circumstance might not have had full opportunity of observing the features of the accused. See Nwaturuocha V The State (2011) LPELR – 8119.”

Where a witness had ample opportunity to identify the accused person an identification parade is not necessary. See Eyisi V The State (2000) 15 NWLR (Pt. 691) 555 where Onu J.SC. had this to say:-

“Identification parade is only one way of establishing the identification of an accused person in relation to the offence charged. It is a misconception of the law to say that it is the only valid way as it is being suggested by learned counsel in this issue. Where for instance the accused person is well known to the witness before the day of the commission of the offence alleged, there can be no need for an identification parade. Similarly, where the witness had ample opportunity to identify the accused person as in the case on hand, I would not think an identification parade was necessary.”

I have carefully pondered over the procedure adopted in the identification parade conducted in the proceedings now an appeal. I am convinced the parade cannot be faulted.

Besides, I am satisfied that PW3 had sufficiently long time to identify the Appellant at the scene of the crime in the afternoon of 18/10/2009. He explained what he saw thus:-

“On getting there, I saw one member of Bakasin holding a boy. The man had a sling on his arm and a machete (sic) in the other. The boy was pleading with the man and in the process brought his ID Card. The man gave the boy a machete cut. There was a woman who came to the scene she held him begging the man to leave the boy. She was an elderly woman, he pushed her and she fell.

When I saw the woman had fallen, I and others were moved to beg the Bakasi man but before we could do so we heard gunshots.”

Even if the identification parade conducted for PW3 to identify the accused was faulty, PW3’s identification of the accused was sufficiently reliable to be acted upon by the Court.

It was not only the PW3 that identified the accused, PW4 and PW5 equally identified the accused as the murderer. They gave graphic account of what happened.

The Learned Trial Judge did not rest his judgment solely on the identification parade. On page 196 of the record, his Lordship held as follow:-

”In the instant case, there is no other evidence pointing to any other person responsible for the crime other than the accused. His evidence that the deceased attempted to rob an unknown person, the fact that he was a member of the Vigilante group known as Bakasi at the time, the fact that he was admittedly at the scene on the date the victim died of multiple lacerations cuts which I believe were caused by a machete, the fact that a machete was found concealed under his car seat with congealed substance on it, the fact that he know where the deceased was killed and that he lied about the whereabouts of his car, the fact that he was seen holding the deceased and inflicting a machete on him and for the fact that the accused and the other was responsible for the injuries on the deceased which led to his death. This is not a case involving mob action but a case where a member of the Bakasi Vigilante group, as popularly called, killed the deceased in cold blood. There is no evidence that any other member of that Vigilante group called “Kalu” was present anywhere near the scene that day. All the evidence leads to the irresistible conclusion that the accused killed the deceased. There are no other facts placed before the Court to show that it could have been any other person. It is settled that where circumstantial evidence is cogent, strong, compelling and leads to only one conclusion that the murder was committed by the accused, a Court can convict on it. See Gabriel Vs The State (1989) 5NWLR (Pt 122) 457”.

In my respectful view, the evidence in support of the conviction of the Appellant is overwhelming. There are sufficient facts to sustain the conviction of the accused. The findings of facts of the learned trial Judge cannot therefore be faulted and disturbed.

In my view, the decision of the Learned Trial Judge is right and this should be the primary concern of an appellate Court. See Odukwe V Ogunbiyi (1998) 8 NWLR (Pt.561) 338 at 350; Olubode V Salami (1985) 2 NWLR (Pt 7) 232; Gwonto V The State (1983) 1 SCNLR 142 at 152; Chukwuma (A.K.A. Daddy) V FRN (2011) 5 S.C.J 40 at 67.

An Appeal Court is to consider whether the decision of the Trial Judge was right and not whether his reasons were.

I resolve this sole issue in favour of the Respondent.

This appeal lacks merit. It is hereby dismissed.

The conviction and sentence of the Appellant by the Trial Court in Suit No. A/23c/2010 in Kalu Ukeje V The State delivered on 13/11/2013 are hereby affirmed.

AGBO, JCA

I have had the privilege of reading in advance the lead judgment of my learned brother Awotoye JCA and I agree with him that there is no merit in this appeal and I also dismiss it and affirm the judgment of the trial Court.

LOKULO-SODIPE, JCA

I have had the privilege of reading in draft the leading judgment prepared by my learned brother TUNDE O. AWOTOYE, JCA. I agree entirely with his reasonings and manner of resolution of the issue upon which the appeal was determined. I therefore abide with the dismissal of the appeal and the other orders made in the leading judgment.