BEST LAW REPORT SUBSCRIPTION PRICE!!

  • Kwale vs. State
  • 159
  • 2003-06-16
  • ₦ 200
  • Buy Now

Kwale vs. State

ENGINEER GABRIEL KWALE

V

THE STATE

COURT OF APPEAL

( CALABAR DIVISION )

DENNIS O. EDOZIE, JCA ( Presided and Read the Lead Judgment )

SIMEON OSUJI EKPE, JCA

SULE AREMU OLAGUNJU, JCA

CA/C/14/2001

TUESDAY, 25TH JUNE, 2002

COURT - Criminal proceedings - Sentencing - Discretion of court to impose a sentence of fine in lieu of imprisonment - Section 382(1) Criminal Procedure Code considered

CRIMINAL LAW AND PROCEDURE - ‘Proof beyond reasonable doubt’ Meaning and ambit of - Exception thereto

CRIMINAL LAW AND PROCEDURE - Conspiracy - Meaning of - Ways in which can be committed  - Immateriality of physical involvement in proof of

CRIMINAL LAW AND PROCEDURE - Contradictions in the evidence of prosecution - Doubts arising therefrom - How resolved - When will result in an interference with decision of court

CRIMINAL LAW AND PROCEDURE - Defence - Duty of court to consider all defences to which, from evidence, accused is entitled to

CRIMINAL LAW AND PROCEDURE - Defence of claim of right - Ambit of - When will avail an accused

CRIMINAL LAW AND PROCEDURE - Duplicity of a count - Effect of CRIMINAL LAW AND PROCEDURE - Insanity - Proof of - Onus on accused to prove - Presumption of sanity unless otherwise proved

CRIMINAL LAW AND PROCEDURE - Sentencing - Discretion of court to impose a sentence of fine in lieu of imprisonment - Section 382(1) Criminal Procedure Code considered

CRIMINAL LAW AND PROCEDURE - Sentencing - Factors guiding -

When appellate court will interfere with

CRIMINAL LAW AND PROCEDURE - Sentencing - Principles guiding Duty on court to aim more at a reformative effect

CRIMINAL LAW AND PROCEDURE - Stealing - Proof of - Evidence sufficient to prove - Proof of a part of items allegedly stolen Sufficiency of to ground conviction

EVIDENCE - Admissibility of evidence - Wrongful admission of evidence Effect - When will necessitate interference with judgment of court

EVIDENCE - Criminal proceedings - Doubts arising from contradictions in evidence of prosecution - How resolved - When such contradictions will necessitate an interference with judgment of court

EVIDENCE - Hearsay evidence - Inadmissibility of even when not objected to by opposing party

EVIDENCE - Onus of proof of insanity - On whom lies - Presumption of sanity of accused person unless contrary is proved

EVIDENCE - Standard of proof in criminal proceedings - Duty on prosecution to prove allegations beyond reasonable doubt

EVIDENCE - Standard of proof in criminal proceedings - Proof beyond reasonable doubt - Meaning and ambit of  - Exception thereto

EVIDENCE - Standard of proof in criminal proceedings - Proof beyond reasonable doubt - Measure of and how attained

JUDGMENT AND ORDERS - Bindingness of findings of court not appealed against

WORDS AND PHRASES - ‘Conspiracy’ - Meaning of

WORDS AND PHRASES - ‘Proof beyond reasonable doubt’ - Meaning of

Issues:

1.            Whether the respondent proved the offences of conspiracy and stealing against the appellant beyond reasonable doubt.

2.            Whether the 2nd count in the information was not bad for duplicity.

3.            Does the defence of claim of right avail the appellant in this case?

4.            Whether the sentence was not disproportionate given the circumstances of the case and the appellant’s antecedent and character.

Facts:

Fergies International Limited, the victim of the offence the subjectmatter of information on which the appellant was arraigned, was engaged in the construction of the Akwa Ibom State House of Assembly complex, Uyo. The appellant was the project manager at the site. The construction had gone on for five years when sometime  in 1993, the site was temporarily shut down due to financial problems. The appellant along with the site engineer who was the 1st accused at the trial court allegedly removed building materials from the site, representing to the security guards on duty that they had been authorised to sell same to repair the faulty company vehicles, which obligation the company could not meet due to shortage of funds. After investigations, the appellant along with the site manager were charged at the Uyo High Court for conspiracy and stealing, while two others arraigned along with them were charged for knowingly receiving stolen property.

In his defence, the appellant admitted removing building materials but maintained that this was authorised both verbally and in writing by the Director of Finance of the company. The letter (exhibit 5) tendered in support of this was ambiguous. The Finance Director denied authorising the removal. The trial Judge convicted the appellant.

Being dissatisfied, the appellant appealed to the Court of Appeal. It was contended inter alia on his behalf that there were contradictions in the evidence of the prosecution as to the exact quantity of materials removed from site, that count two (2) of the charge was bad for duplicity and that the sentences imposed for the two charges were excessive.