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Yav v. State

ASENDE YAV

IORTUHWA NGBAR

IORTIM KWAGHVIHI

TSAVNANDE LIM

AKAV IGBUDU

V

THE STATE

COURT OF APPEAL

( JOS DIVISION )

ALOMA MARIAM MUKHTAR, JCA ( Presided )

OLUDADE OLADAPO OBADINA, JCA

IFEYINWA CECILIA NZEAKO, JCA ( Read the Lead Judgment )

CA/J/155C/97

FRIDAY, 14TH MAY, 2004

COURT - Criminal proceedings - Standard of proof in - Duty on court when in doubt as to proof of prosecution’s case

COURT - Evidence of witness - Power of court to accept part and reject part of evidence of a witness

COURT - Findings of trial court - Perverse finding - Meaning of - Power of court to set aside

COURT - Trial court - Duty of to evaluate evidence

CRIMINAL LAW AND PROCEDURE - ‘Prima facie case’ - Meaning of in criminal trial

EVIDENCE - Evaluation of evidence - Duty of trial court to do

EVIDENCE - Standard of proof in criminal proceedings - Duty on court when in doubt as to proof of prosecutions case


EVIDENCE - Witness - Inconsistency of written statement of with testimony in court - Consequence of

EVIDENCE - Witness - Testimony of - Acceptance of part of and rejection of the other part by court - Propriety of

EVIDENCE - Witness - Testimony of supporting opposing party’s case Effect of

PRACTICE AND PROCEDURE - Criminal proceedings - Standard of proof in - Duty on court when in doubt as to proof of prosecution’s case

TORT - Trespass - Meaning of

WORDS AND PHRASES - ‘Prima facie case’ - Meaning of in criminal

trials

WORDS AND PHRASES - ‘Trespass’ - Meaning of

Issues:

1.              Whether the prosecution had proved its case warranting the conviction and sentence of the appellants by the trial court.

2.              Whether the trial court properly evaluated the evidence and considered the appellants’ case before it in arriving at its judgment.

Facts:

This is an appeal against the judgment of the High Court of Justice, Makurdi, Benue State of Nigeria. Eight (8) accused persons were arraigned on a two-count charge of criminal trespass and intent to commit mischief by fire, committed on 13/4/89, punishable under section 348 of the Penal Code read together with section 79 of the Penal Code; and mischief by fire, punishable under section 337 of the Penal Code read together with section 79  of the Penal Code.

There had been a land dispute involving the family of the complainant PW1 and PW2 on one hand, and the family of the 7th and 8th accused who belong to a different kindred. All the accused persons belong to the same kindred. The land dispute had ended on appeal to the High Court of Justice in favour of PW1’s family against the 7th and 8th accused persons’ family. PW1 and his brother PW2 built a house for the mother of the PW1 where they lived. It was while they were building the second house when the incident giving rise to the charge occurred. The mother who had earlier died had been buried behind her said house. In the early hours of 13/4/89, at about  6am, while the complainants PW1 and PW2 were in their house which was on the land which the High Court had on appeal declared them owners, they heard horns being blown, signifying an unusual event or doom approaching. The appellants armed with guns, bows, arrows, surrounded their compound, shooting. PW1 and PW2 hid in a broken anthill nearby. The appellants burnt down the two houses belonging to the complainants and those of their brother, Uvue Utim. They dug up the grave of PW1’s mother behind the house and set it on fire.

In the judgment delivered on 7th June 1996, of the 8 accused persons, five (5) of them namely 2nd, 3rd, 4th 6th and 8th were found guilty, the 5th accused died before judgment after testifying in his defence, the 1st and 7th accused were discharged and space acquitted based on their pleas of alibi which succeeded.

Dissatisfied, the five (5) accused persons found guilty appealed to the Court of Appeal.