HON. YAKUBU IBRAHIM & ORS. V. COMMISSIONER OF POLICE
(2010)LCN/3773(CA)
In The Court of Appeal of Nigeria
On Tuesday, the 11th day of May, 2010
CA/A/6C/2007
RATIO
ACTION: CIRCUMSTANCES WHERE NO CASE SUBMISSION WILL BE UPHELD
A submission that there is no case to answer may properly be made and upheld:
(a) when there has been no evidence to prove an essential element in the alleged offence charged. (b) when the evidence adduced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it See Ohuka v. State (NO.2) (1988) 4 NWLR (pt 86) 36.
A trial Judge is competent to rule that an accused has no case to answer if one of the two conditions stated in principle above is satisfied. State differently, the two conditions are disjunctive and not conjunctive and that shows that one can exist without the other for the submission of no case to be effectively made and upheld. At this stage the reliability or otherwise of the witnesses reliance on the cases of: Onagoruwa v. State (1993) 7 NWLR (pt. 303) 49; R v. Ogucha (1959) SCNLR 154; Ajidagba v. Inspector General of Police (1958) SCNLR 60; Attorney General of Anambra State v. Nwobodo (1992) 7 NWLR (pt. 256) 711. PER MARY U. PETER-ODILI. J.C.A
CRIMINAL LAW: MEANING AND NATURE OF PRIMA FACIE CASE
The matter of prima facie is to be seen in its meaning which is from Latin. The Latin expression ‘prima facie’ in ordinary parlance means on the face of it; at first sight; on the first appearance; so far as can be judged from the first disclosure. It also means a fact presumed to be true unless disproved by some evidence to the contrary.
In a criminal trial a ‘prima facie’ case is a case which proceeded upon sufficient proof to that stage where it will support findings if evidence to the contrary is disregarded. It is a case which on the face of it is sufficient to call upon the accused to make his defence, without which a court of law is competent to proceeds to conviction. It also means that the prosecution has presented sufficient evidence to render reasonable a conclusion on the face of the evidence that the accused is convictable, in the absence of contrary evidence. Onagoruwa v. The State (1993) 7 NWLR (pt. 303) 49 at 81 per Tobi, J.C.A (as he then was).
If there is no sufficient evidence linking the accused with the statutory elements and ingredients of the offence with which he is charged, a court of trial must, as a matter of law, discharge him and it has no business searching and scouting for evidence that is nowhere and therefore cannot be found. That will not be consistent with our adversary system of administration of justice. It is inquisitorial in design and execution. PER MARY U. PETER-ODILI. J.C.A
ACTION: NO CASE SUBMISSION; MEANING OF NO CASE SUBMISSION
For emphasis, a no case submission means that from the evidence adduced by the prosecution, the accused has no case to answer and should not therefore be called upon to defend himself. By a no case submission, the accused submits that the prosecution has not made a prima facie case against him and that he should not be made to face the ordeal of defending himself. Onagoruwa v. State (1993) 7 NWLR (pt. 303) 49 at 82.
It is trite law that a submission of no case means that there is no evidence on which the Court could convict even if the Court believes the evidence given. Therefore, a decision to discharge an accused person on the ground that a prima facie case has not been made against him must be a decision which upon a calm view of the whole evidence proffered by the prosecution, a rational understanding will suggest. See Ohuka v. The State (No.2) (1988) 4 NWLR (pt. 86) 36; Ajidagba v. Inspector General of Police (1958) 3 FSC 5. When a person is standing trial for a crime, generally every material point or every essential ingredient of the crime is put, or deemed to be put in issue by him to be proved by the prosecution. Nwosu v. State (1998) 8 NWLR (pt. 562) 433 per Katsina-Alu, J.C.A (as he then was). PER MARY U. PETER-ODILI. J.C.A
CRIMINAL LAW: BREACH OF TRUST; INGREDIENTS OF THE OFFENCE OF CRIMINAL BREACH OF TRUST
The ingredients of the offence of criminal breach of trust contained in Section 311 of the Penal Code and which must be proved before a charge, for same can be sustained are:-
(a) that he accused was entrusted with property or with dominion over it.
(b) that he
(i) misappropriated the property;
(ii) converted such property to his own use;
(iii) disposed of it.
(c) that he did so in violation of:-
(i) any direction of law prescribing the mode in which such trust was to be discharge; or
(ii) any legal contract expressed or implied which he had made concerning the trust; or
(iii) he intentionally allowed some other persons to do or commit the above stated,
(d) that he acted dishonestly as in (b) above.
See Onuoha v. The State (1988) 3 NWLR (pt 83) 460 (SC). PER MARY U. PETER-ODILI. J.C.A
JUSTICES
UWANI MUSA ABBA AJI Justice of The Court of Appeal of Nigeria
MARY U. PETER-ODILI Justice of The Court of Appeal of Nigeria
ABDU ABOKI Justice of The Court of Appeal of Nigeria
Between
1. HON. YAKUBU IBRAHIM
2. BLESSING URANE EDEGBO
3. ISAIAH EDEGBO Appellant(s)
AND
COMMISSIONER OF POLICE Respondent(s)
MARY U. PETER-ODILI. J.C.A (Delivering the Leading Judgment): The appellants and two others were charged with the offences of Criminal Breach of Trust, Misappropriation, Aiding and Abetment and Assisting in the concealment of Stolen Property.
The prosecution called four witnesses and tendered exhibits including the various statements of the accused persons before the trial Magistrate and the statement of PW1, their star witness. Counsel to the Appellants made a no case submission at the close of the evidence for the prosecution. The no-case submission was overruled against the appellants, that of the other accused persons was upheld and they were discharged by the trial court.
Not being satisfied with the ruling of the trial Senior Magistrate Court, the Appellant appealed to the Lower Court on five (5) grounds of appeal. After hearing the appeal the High court in its appellate jurisdiction, Coram: Oniyangi and Oriji J.J; upheld the ruling of the trial Court and dismissed the appeal. The Appellants not satisfied with that judgment of the Lower Court have appealed to this Court after obtaining the leave of the Lower Court to appeal. The Appellants filed six (6) grounds of appeal challenging the judgment of the Lower Court.
I will recast the Grounds of Appeal while omitting the particulars and these are:-
GROUND ONE:
The learned Justices of the Lower Court erred in law and misdirected themselves by holding thus:-
“We are also of the view that in determining if a prima facie case has been established against the appellants, it is not for the Lower court to decide whether or not the respondent adduced ‘material evidence’ by way of receipts issued by the Hospital to substantiate the evidence that money was misappropriated by the 2nd appellant. It is sufficient that the respondent led evidence to the effect that money was misappropriated by the appellant who was a staff of PW3 in his hospital in charge of receiving money and keeping the money received.”
GROUND TWO:
The learned Justices of the Lower court erred in law and misdirected themselves in their efforts to distinguish the cases of ONAGORUWA V. STATE (1993) 7 NWLR (pt. 303) 49 and CHIANUGO V. STATE (2001) FWLR pt 74 P. 242 with present case.
GROUND THREE-
The learned Justices of the Lower court erred in law and misdirected themselves when they held thus:-
“These pieces of evidence undoubtedly show that prima facie, there is evidence of loss of money and the amount allegedly lost is ascertained or ascertainable”.
GROUND FOUR:
The learned Justices of the Lower Court erred in law and misdirected themselves when they held thus:
“We have come to the irresistible conclusion that the Presiding Senior Magistrate of the Lower Court was right in holding that the respondent has established a prima facie case against the appellants for the offences for which they were respectively charged. Accordingly, this appeal lacks merit and is therefore dismissed”.
GROUND FIVE:
The trial Court lacks jurisdiction to hear and determine the case of Criminal misappropriation.
GROUND SIX:
The Judgment of the Lower Court is unreasonable, unwarranted having regard to the evidence.
On the 25/3/10 dated of hearing, learned Counsel for the Appellant, A.R. Fatunde referred the Court to its order of 18/1/10 granting the prayer through motion of the Appellant’s to have the appeal heard and determined only on the Brief of the Appellant on the failure of the Respondent to file their Brief within time or at all. The Appellant’s counsel proceeded to adopt the Appellant’s Brief filed on 20/2/07.
In the Brief the Appellant had had on their behalf couched two issues for determination which are as follows:-
1. Whether the Lower Court was right in upholding the decision of the trial Magistrate Court that a prima facie case had been established against the Appellants.
2. Whether the facts in the instant case arm distinguishable from the facts in the cases of ONAGORUWA V, STATE (1993) 7 NWLR (pt 303) p. 49 and CHIANUGO V. STATE (2001) FWLR pt 74 P. 242 as alleged by the Lower Court.
The two issues being interrelated, I think it best to deal with them together.
Mr. Fatunde submitted that before a prima facie case is established against an accused person, the prosecution must have established all the essential elements of the offence and the evidence of the prosecution is not manifestly unreliable that no reasonable tribunal may convict on them.
That in the instant case, in order to determine whether the respondent had established a prima facie case against the Appellants, the offences for which the Appellants were arraigned before the trial court must be considered separately. That for the offence of Criminal Breach of Trust contrary to Section 312 Penal Code to be established against the 2nd Appellant, the prosecution must establish all the essential elements of the offence. He cited Onuoha v. State (1988) 3 NWLR (pt. 83) 460.
Mr. Fatunde of counsel said that the Respondent did not establish the property allegedly entrusted with the 2nd Appellant as no evidence was adduced as to what was entrusted to the 2nd Appellant. That in trying to establish this offence, the Respondent called PW1 and PW3. The content of the First Information Report stated that the 2nd appellant and PW1 misappropriated the sum of N6.8 million naira while PW3 in his evidence testified that the amount is N10,625,000 million naira. That the question that arises is, how the Respondent came by the amounts.
He stated that PW1 had testified that sometimes they used to take from N50,000 – N70,000 while counting the money and the same witness did not know how much the Hospital realized every day since they did not count the money they took for 2 to 3 months.
Mr. Fatunde contended that, the Court could not rely on such an unreliable piece of evidence or witness to overrule the no case submission. He cited the cases of Nwosu v. State (1998) 8 NWLR (pt. 562) 433 at 444; Ikemson v. State (1989) 3 NWLR (pt. 110) 455 at 474 – 475.
Learned Counsel went on to state that the fact in issue is that the 2nd Appellant as the cashier of PW3’s hospital was entrusted with the collection of money from patients; the 2nd Appellant and PW1 were alleged to have misappropriated the sum of $6.8 million or N10,625,000 and there is no evidence adduced to show that this money belonged to the hospital or that the hospital was entitled to the amount, which the 2nd appellant dishonestly misappropriated. That this means that the essential ingredients of the offence of Criminal Breach of Trust had not been established against the 2nd Appellant. That for the respondent to establish the essential ingredients of the offence of Criminal Breach of Trust, the duplicate copies of the receipts issued to patients are material evidence. He referred to the case of Akinbisade v. State (2006) 17 NWLR (pt. 1007) 184 at 201 paras G – H.
On the charge of Criminal misappropriation, learned Counsel for the Appellant said the Respondent must establish the following ingredients of the offence viz:-
i. That the property in question is movable property.
it That the accused misappropriated it or converted it to his own use.
iii. He did so dishonestly.
Mr. Fatunde said there was no record shown before the trial Court as to the number of patients who used to come to the Hospital on daily basis and no receipt booklet was tendered showing the amount realized by the hospital every day and how much was accounted. That all PW3 said in evidence was that it was his matron who was also his wife that discovered that the money accounted for by the 2nd appellant and PW1 was less than what should be. He said this means that they know how much the Hospital made every day or should be accounted for by PW1 and the 2nd appellant which evidence should have been proffered.
That it is not for the 2nd Appellant to testify on an unascertained claim before the Court or to prove her innocence. He stated on that in a Criminal Offence, the standard of proof does not shift and all the essential ingredients of the offence must be established before the 2nd appellant is called upon to enter defence and this the Respondent have failed to do. He cited Abacha v. State (2002) FWLR (pt. 118) 1224 at 1287 paras A – H.
Mr. Fatunde submitted further that on the charge of Abetment there are essential ingredients which must be present are:-
a) There must be an abettor
b) He must abet and
c) The abetment must be an act of same sort.
Mr. Fatunde of counsel submitted that throughout the evidence adduced by the Respondent they failed to establish that the complainant is entitled to those amounts allegedly misappropriated. That the Respondent tendered the statements of the 1st Appellant and the 3rd Appellant to the police in court but did not tender the Statement of 2nd Appellant. He cited section 149 (d) of the Evidence Act. That from the statement of the 5th accused, it was clear that the testimony of PW1 against the 1st Appellant was revenge seeking and the trial court considering the evidence before it discharged the 3rd and 5th accused. He stated that Respondent failed to establish the essential ingredients of the offence of abetment against the 1st Appellant. He referred to Ohuka v. State (1988) 4 NWLR (pt. 86) 36 at 51.
For the Appellants was further submitted that, PW4 in his evidence in chief testified that all the accused persons were confronted with the Statement of PW1 to the police and they all denied the allegations thereof. That these statements excepting that of 2nd appellant were tendered in court and so not all the necessary evidence was before the Lower Court in its consideration of whether or not a prima facie case was made out against the accused persons. He cited Aminu v. State (2005) 2 NWLR (pt. 909) 180 at 191, Abacha v. State (2002) FWLR (pt. 118) 1224 at 1287 A – B; Chianugo v. State (2001) FWLR (pt. 74) 242 at 251; Onogoruwa v. State (1993) 7 NWLR (pt. 303) 49 at 93.
Mr. Fatunde went on to say that the Respondent failed to establish that they are entitled to the sum of N6.8 million or N10.625,000 million by adducing cogent and compelling evidence that the Hospital or PW3 is entitled to these amounts. That where a specific amount or a named amount is alleged to have been misappropriated, the respondent may fail or succeed on the strength of its evidence by proving the specific amount misappropriated, failure to do so the accused persons are entitled to be discharged for want of evidence. He referred to Onagoruwa v. State (1993) 7 NWLR (pt. 303) 49 at 93; Chianugo v. State (2001) FWLR (pt 74) 242 at 250.
In respect to Issue No. 2, learned Counsel said that the Lower Court was wrong to have held that the instant case was distinguishable from that of Onagoruwa (supra) and Chianugo (supra). Learned Counsel went to great length to show the similarities. He concluded by saying that with the prosecution’s case being manifestly unreliable no reasonable tribunal would convict on it. That since the amount allegedly stolen is not known and the respondent did not state how they arrived at the amount allegedly stolen that buttresses the unreliability of prosecution’s evidence and therefore the no case submission should succeed. He cited Emedo v. State (2002) FWLR (pt. 130) 1045 at 1651; Abacha v. The State (2002) FWLR (pt. 118) 1224) at 1277 C – D; Ekpo v. State (2001) FWLR (pt. 55) 454 at 463 para A.
That is a summary of the facts and submissions of counsel for the Appellants in the consideration of this appeal.
A submission that there is no case to answer may properly be made and upheld:
(a) when there has been no evidence to prove an essential element in the alleged offence charged. (b) when the evidence adduced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it See Ohuka v. State (NO.2) (1988) 4 NWLR (pt 86) 36.
A trial Judge is competent to rule that an accused has no case to answer if one of the two conditions stated in principle above is satisfied. State differently, the two conditions are disjunctive and not conjunctive and that shows that one can exist without the other for the submission of no case to be effectively made and upheld. At this stage the reliability or otherwise of the witnesses reliance on the cases of: Onagoruwa v. State (1993) 7 NWLR (pt. 303) 49; R v. Ogucha (1959) SCNLR 154; Ajidagba v. Inspector General of Police (1958) SCNLR 60; Attorney General of Anambra State v. Nwobodo (1992) 7 NWLR (pt. 256) 711.
The matter of prima facie is to be seen in its meaning which is from Latin. The Latin expression ‘prima facie’ in ordinary parlance means on the face of it; at first sight; on the first appearance; so far as can be judged from the first disclosure. It also means a fact presumed to be true unless disproved by some evidence to the contrary.
In a criminal trial a ‘prima facie’ case is a case which proceeded upon sufficient proof to that stage where it will support findings if evidence to the contrary is disregarded. It is a case which on the face of it is sufficient to call upon the accused to make his defence, without which a court of law is competent to proceeds to conviction. It also means that the prosecution has presented sufficient evidence to render reasonable a conclusion on the face of the evidence that the accused is convictable, in the absence of contrary evidence. Onagoruwa v. The State (1993) 7 NWLR (pt. 303) 49 at 81 per Tobi, J.C.A (as he then was).
If there is no sufficient evidence linking the accused with the statutory elements and ingredients of the offence with which he is charged, a court of trial must, as a matter of law, discharge him and it has no business searching and scouting for evidence that is nowhere and therefore cannot be found. That will not be consistent with our adversary system of administration of justice. It is inquisitorial in design and execution.
For emphasis, a no case submission means that from the evidence adduced by the prosecution, the accused has no case to answer and should not therefore be called upon to defend himself. By a no case submission, the accused submits that the prosecution has not made a prima facie case against him and that he should not be made to face the ordeal of defending himself. Onagoruwa v. State (1993) 7 NWLR (pt. 303) 49 at 82.
It is trite law that a submission of no case means that there is no evidence on which the Court could convict even if the Court believes the evidence given. Therefore, a decision to discharge an accused person on the ground that a prima facie case has not been made against him must be a decision which upon a calm view of the whole evidence proffered by the prosecution, a rational understanding will suggest. See Ohuka v. The State (No.2) (1988) 4 NWLR (pt. 86) 36; Ajidagba v. Inspector General of Police (1958) 3 FSC 5. When a person is standing trial for a crime, generally every material point or every essential ingredient of the crime is put, or deemed to be put in issue by him to be proved by the prosecution. Nwosu v. State (1998) 8 NWLR (pt. 562) 433 per Katsina-Alu, J.C.A (as he then was).
For our purpose here and now and the offences charged it is necessary to state the ingredients of those offences and what should apply. The ingredients of the offence of criminal breach of trust contained in Section 311 of the Penal Code and which must be proved before a charge, for same can be sustained are:-
(a) that he accused was entrusted with property or with dominion over it.
(b) that he
(i) misappropriated the property;
(ii) converted such property to his own use;
(iii) disposed of it.
(c) that he did so in violation of:-
(i) any direction of law prescribing the mode in which such trust was to be discharge; or
(ii) any legal contract expressed or implied which he had made concerning the trust; or
(iii) he intentionally allowed some other persons to do or commit the above stated,
(d) that he acted dishonestly as in (b) above.
See Onuoha v. The State (1988) 3 NWLR (pt 83) 460 (SC).
In considering the word ‘dishonestly’ in section 311 of the Penal Code, it will be sufficient if one contuses it in its natural meaning i.e. Intended to cheat, deceive or mislead. Onuoha v. State (1988) 3 NWLR (pt. 83) 460.
Where a person is charged under Section 315 of the Penal Code (Cap. 89) for the offence of criminal breach of trust, the prosecution must establish in addition to the ingredients stated in (i) above that such person so charged committed the offence in his capacity as a public servant or in the way of his business as a banker, factor, broker, legal practitioner or agent. Onuoha v. The State (1988) 3 NWLR (83) 460.
Having considered the evidence available to the Court of first instance, that is the Senior Magistrate, the finding and decision therein which the Appellate High Court affirmed stating that the Appellants presiding Senior Magistrate was right in holding that the Respondent had established a prima facie case against the appellants for the offences for which they were respectively charged. In like manner, I see no reason to deviate from either what the High Court in appellate status did and that of the Court of first instance, the Senior Magistrate Court and so I am satisfied that this appeal lacks merit as a prima facie case was really made out by the Respondent against the Appellants in their respective offences. This appeal fails and is dismissed. I affirm the decision of the Court Below and that of the trial Senior Magistrate.
UWANI MUSA ABBA AJI, J.C.A.: I have had a preview of the judgment just delivered by learned brother M.U. PETER-ODILI, J.C.A, and I agree with the reasoning and conclusion of my learned brother that the appeal lacks merit and ought to be dismissed.
I also dismiss the appeal and affirm the judgment of the Court below.
ABDU ABOKI, J.C.A.: I have read in draft the lead Judgment delivered by my learned brother, Mary U. Peter-Odili J.C.A. I agree with the reasoning and conclusions of my Lord. I also dismiss this Appeal whilst affirming the decision of the lower Courts.
Appearances
1st & 3rd Appellants physically present.
A. R. FatundeFor Appellant
AND
Respondent absent and not represented even though served on 1/3/2010.For Respondent
