FAROUK BIBI FAROUK v. KANO STATE & ORS
(2019)LCN/13055(CA)
In The Court of Appeal of Nigeria
On Thursday, the 11th day of April, 2019
CA/K/222/C/2018
JUSTICES
HUSSEIN MUKHTAR Justice of The Court of Appeal of Nigeria
SAIDU TANKO HUSSAINI Justice of The Court of Appeal of Nigeria
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE Justice of The Court of Appeal of Nigeria
Between
FAROUK BIBI FAROUK – Appellant(s)
AND
1. KANO STATE
2. MAHMUD BELLO BARI
3. AHMAD IBRAHIM – Respondent(s)
RATIO
DEFINITION OF THE OFFENCE OF CONSPIRACY
The offence of conspiracy has been defined in the case of Kaza v State (2008) 7 NWLR Part 1085 Page 125 at 175 Para F-G per Tobi JSC quoting from Blacks Law Dictionary 6th Edition as: A combination or confederacy between two or more persons formed for the purpose of committing by their joint effort, some unlawful or criminal act, or for some act which is lawful in itself but becomes unlawful when done by the concerted action of the conspirators for the purpose of using criminal or unlawful means for the commission of an act not in itself unlawful. Put briefly, it is an agreement to do an unlawful act or to do a lawful act by unlawful means. See Kayode v State (2016) 7 NWLR Part 1511 Page 199 at 238 Para B-C per Ariwoola JSC. Conspiracy, it has been held, is difficult to prove by direct evidence as it is often hatched in secrecy. Circumstantial evidence and inference from certain proved facts are, however enough to ground a conviction for the offence. See Kayode v State Supra at 238 Para D-E per Ariwoola JSC. PER ADEFOPE-OKOJIE, J.C.A.
STANDARD OF PROOF IN CRIMINAL PROCEEDINGS
As has been severally settled and held recently in Fulani v State (2019) 1 NWLR Part 1653 Page 237 at 251-252 Para G-B per Galinje JSC:Now, the law is settled that if the commission of a crime by a party to any proceeding is directly in issue in any proceeding, civil or criminal, it must be proved beyond reasonable doubt. The burden of proving that any person has been guilty of a crime or wrongful act is on the person who asserts it, whether the commission of such act is or is not directly in issue in the action. See Section 138(1) and (2) of the Evidence Act 2011. Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999, provides that every person who is charged with a criminal offence shall be presumed innocent until he is proved guilty. Flowing from the above therefore, the burden of proof in criminal cases is on the prosecution who must prove its case beyond reasonable doubt and a general duty to rebut the presumption of innocence constitutionally guaranteed to the accused person. This burden never shifts Underlining Mine. PER ADEFOPE-OKOJIE, J.C.A.
DEFINITION OF A PRIMA FACIE CASE WARRANTING THE APPELLANT OPENING HIS DEFENCE
A prima facie case, to warrant the Appellant opening his defence, was defined by the Supreme Court in the case of Oko v State Supra, per Augie JSC at Pages 72-73 Para H-C, as evidence, which on the face of it, is sufficient to sustain the charge against the Accused when it is such that if uncontradicted and if believed it will be sufficient to prove the case against the Accused. See also Tongo v State (2007) 12 NWLR Part 1049 Page 525 at 539-540 Para H-C per Oguntade JSC. PER ADEFOPE-OKOJIE, J.C.A.
OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, J.C.A. (Delivering the Leading Judgment): This is a criminal appeal against the Ruling on a No Case Submission delivered by Hon. Justice Nasiru Saminu of the Kano State High Court, on the 16th of March, 2018. The Appellant, who was the 1st accused at the lower Court and a former Commissioner of Kano State Ministry of Lands, was arraigned with two other officials of the same Ministry, being the Former Permanent Secretary and a Director respectively, on a three count charge of Criminal Breach of Trust by Servant and Criminal Conspiracy, contrary to Sections 97 and 315 of the Penal Code (Cap 105), Laws of Kano State of Nigeria, 1991. They were alleged to have connived and sold a plot of land, No. 731 situate at Kabuga Quarters, Kano to one Baba Sharu Dala for the sum of Five Million Naira (N5,000,000) over an existing Right of Occupancy. They were also alleged to have issued two Occupancy Permits to non-existing persons in the fictitious names of one Aisha Kabir and Maryam Ado. They all pleaded not guilty.
In proof of the charges, the prosecution called six witnesses and tendered 7 Exhibits.
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At the close of the prosecutions case, the Appellant and the two other accused persons made a no case submission, which was over ruled by the trial Court, who ordered them to enter their defence.
Dissatisfied with the ruling, the Appellant filed an eight ground Notice of Appeal on 27/3/18. This was followed by an Appellants Brief of Arguments filed on 17/4/18 and deemed properly filed on 17/9/18, settled by Eloka .J. Okoye Esq, of Akinlolu Kehinde (SAN) & Co in which a sole issue was distilled for the Courts determination as follows:
Whether having regard to the facts and given circumstances of this case, the Respondent made out a prima facie case against the Appellant (1st accused in the trial Court) and thus was the trial Court right when it overruled the no case submission made on behalf of the Appellant.
The 1st Respondent in turn filed a Respondents Brief of Arguments on 16/5/18 but deemed properly filed on 17/9/18, settled by Rabi Ibrahim Waya, Assistant Director Ministry of Justice, Kano State, similarly distilling a sole issue for determination, namely:
Whether the trial Court was right in overruling
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the Appellants no case submission and ordering the Appellant to enter his defence having regard to the evidence adduced by the 1st Respondent.
Both issues for determination are similar. I shall however adopt the phraseology of the Respondents Counsel, for brevity and succinctness, namely:
Whether or not the trial Court was right in overruling the Appellants no case submission and ordering the Appellant to enter his defence having regard to the evidence adduced by the 1st Respondent.
The learned Counsel to the Appellant, in the Appellants Brief, has submitted that the importance of a no case submission is that the accused does not have a case to answer from the evidence adduced by the prosecution and should be discharged. He relied on Section 191 (3) of the Criminal Procedure Code, arguing that upon making of a no case submission, the trial Court is faced with a decision whether to uphold the no case submission in which event the accused person is discharged or whether to refuse the submission in which event the accused may be called upon to enter his defence. He made reference to the cases of State v. Ajuluchukwu
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(2011)5 NWLR (pt. 1239)78 at 89 ? 90 paras G-A; Tongo v. Cop (2007)12 NWLR (pt. 1049)525 at 544 paras E-H.
The trial Court, he submitted, did not properly consider whether or not the prosecution was able to establish the elements of the offences charged. Examination by the Court as to whether the prosecution has established the element of the offence charged does not amount to ascribing probative value to the evidence, he submitted. He referred to Abru v. State (2011)17 NWLR (pt. 1275)1 at 23 paras C-D; Ajose v. FRN (2011) 6 NWLR (pt.1244) 465 at 476 paras D-E and Okoro v. state (1988)5 NWLR (pt. 94) 255 at 277 para B-C.
He submitted further that failure of the prosecution to establish the ingredients of the offence an accused person is charged with, in itself, is a ground to properly uphold a no case submission and discharge the accused person.
On the definition of the offence of conspiracy Counsel referred to the cases of Kaza v. State (2008)7 NWLR (pt.1085) 125 at 175 paras F-G, George v. F.R.N (2011)10 NWLR (pt.1254) p.102 paras D-F, Kayode v. State (2016) 7 NWLR (pt. 1511) 199 at 238 paras C-D. He submitted that in an attempt to
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establish the elements of the offence of conspiracy as required by law the prosecution called four witnesses, PW1-PW4. From the totality of the evidence of these witnesses there was nothing that established the cardinal element of an agreement between the Appellant and the 2nd and 3rd accused persons before the lower Court. He contended that none of the witnesses interfaced with the Appellant, neither did he meet any of them or offered them any money nor receive any from them. As conspiracy can hardly be proven by direct evidence, needing to be inferred from the totality of the relevant evidence adduced by the prosecution, there was none, he submitted, citing the cases of Kayode v. State (2016)7 NWLR (pt.1511) 199 at 238 paras D-E, Ajose v. F.R.N (2011)6 NWLR (pt.1244) 465 at 476 paras G-H.
With regard to the offence of criminal breach of trust, learned Counsel referred to its definition in the cases of Oladejo v. State (1994) 6 NWLR (pt. 348)101 at 129 para E; Ugbaka v. State (1994) 8 NWLR (pt. 364)568 at 585-586 paras H-B. To establish this offence, it must be shown that the accused person was entrusted with certain property and that he dishonestly
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appropriated it, or converted it to his own use, arguing that there is no evidence to show that the Appellant converted property entrusted to him to his own use and there is no evidence to show that the Appellant acted illegally in the allocation of land in his capacity as Commissioner for Lands.
Learned Counsel contended further that the trial judge failed to avert his mind to the evidence of PW2 who stated on page 78 of the record that I prepared a letter of grant and signed on behalf of the Commissioner and dispatch it to the Applicant (sic). The lower Court was thus wrong to have held that Exhibits P4 and P5, the Letters of Occupancy) were signed by the Appellant and that these have not been contradicted requiring the Appellant to be called on to proffer some explanation on his role in the transaction that gave rise to the charge against him.
Learned Counsel again argued that where a signature is appended in an official capacity, it is manifestly untenable for the Appellant to be invited to enter a defence on that ground. He stated that where there remains a doubt as to the involvement of the accused person in a criminal allegation,
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the prosecution has failed in the discharge of its duty and every doubt must be resolved in favour of the accused person. He relied on the case of Njoku v. State (2013) 2 NWLR Part 1339 Page 548 at 566 Para C-D.
Counsel took exception to the words of the trial Judge where he held that it is in evidence that the 3 accused persons conspired and sold a plot of land covered by letter of grant Exhibit PW1 and PW2 which turn out to be a letter of grant on an already existing Plot. This, he said is because it is not in evidence that the 3 accused persons conspired and sold any plot of land. He argued that what is in evidence is the repeated testimony of the witnesses that they had never met the Appellant in person, had never interfaced with him nor had cause to believe that he was even remotely involved in any step of the allocation process apart from the final approval after all the necessary recommendations had been made.
Counsel finally submitted that it is not in every case that the accused person in a criminal trial is called upon to enter his defence. He cited Okoro v. State (1988) 5 NWLR (pt.94)255 at 277 paras B-C; Suberu v. State
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(2010) 8 NWLR (pt. 1197) 586 at 609 paras C-E.
In response, the Assistant Director, Counsel to the 1st Respondent, submitted that the 1st Respondent has adduced enough evidence to establish a prima facie case to warrant the Appellant to enter his defence, arguing that it is not the duty of the Court to determine the innocence or guilt of the Appellant but to look at the evidence adduced to determine whether a prima facie case has been established. She relied on the cases of Oko v. state (2017) 8 SCM pg. 138 at 147 Ratio 9, Abogede v. State (1996)5 NWRL (pt.118) pg. 270 at 280, Shatta v. F.R.N (2009) 3 N.C.C pg. 527. She referred to the case of Oko v. State (supra) for the definition of prima facie case.
Learned Counsel also submitted that the evidence of the 1st Respondents witnesses was neither discredited nor controverted throughout the proceedings, therefore the trial Court, relying on such evidence in arriving at its decision to overrule the no case submission of the Appellant, cannot be faulted. Counsel further submitted that to discredit evidence enough for a Court to disregard it, it must be clear that no reasonable Court or tribunal can
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act on the face of it. She relied on the case of C.O.P.V Amuta (2017) 1 SCM pg. 116 at 117 Ratio 1.1.
Finally, learned Counsel submitted that all the elements of the offences which the Appellant is charged with were proven by the 1st Respondent. It is not the duty of the Court to pronounce on the outcome of the case, simply to see if there is any evidence linking the accused with the case, citing the cases of C.O.P v. Amuta (supra) and Tongo v. C.O.P (2007) 12 NWLR (pt. 1049) pg. 525 at 544 paras E-H.
The Court was urged to dismiss the appeal and affirm the ruling of the trial Court.
The Appellants Counsel in his Reply Brief filed on 26/6/18 but deemed properly filed on 17/9/18, argued that the 1st Respondents Counsel missed the point when she argued that all the elements of the offences which the Appellant was charged with were proven by the 1st Respondent, as it is the evidence before the Court that will determine whether the ingredients of the alleged offences have been proved against the Appellant and a prima facie case made to warrant the calling of a defence. He referred to the case of C.O.P vs. Amuta Supra. In response to
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arguments of Counsel that the evidence of the prosecution witnesses was neither discredited nor controverted throughout the proceedings, the Court, he submitted, is bound by its proceedings.
The no case submission made by the Appellant, was brought under Section 191(3) of the Criminal Procedure Code, which provides:
Section 191
(3) Notwithstanding the provisions of subsection (2), the Court may, after hearing the evidence for the prosecution if it considers that the evidence against the accused or any of several accused is not sufficient to justify the continuation of the trial, record a finding of not guilty in respect of such accused without calling upon him or them to enter upon the defence and such accused shall thereupon be discharged and the Court shall then call upon the remaining accused, if any, to enter upon the defence.
By making a no-case submission, the Appellant was, in effect, telling the trial Court one of two things, or both, and that is:
i. That there has been, throughout the trial, no legally admissible evidence linking him with the commission of the offence charged; and/or
ii. That the evidence as
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adduced by the prosecution has been so discredited by cross-examination that no reasonable Court can safely convict on it.
In the words of the Supreme Court in COP v Amuta (2017) 4 NWLR Part 1556 Page 379 at 391 Para B-D per Akaahs JSC:
. a submission of no case to answer may be properly made and upheld in the following circumstances:-
(i) When there has been no evidence to prove an essential element in the alleged offence either directly, circumstantially or inferentially;
(ii) 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 can safely convict on it.
In Tongo v State (2007) 12 NWLR Part 1049 Page 525, the same Court, in an earlier case, it was held by the same Court, per Onnoghen JSC (as he then was) at Page 544 Para E-H:
h the essence of a submission of a no case to answer lies in the contention that the evidence of the prosecution called in the discharge of the burden of proof placed on them by law, has failed to establish a prima facie case. or establish
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the ingredients of the offence against the accused to make it imperative for the Court to call upon the accused to defend himself or answer to the charge or open his defence or enter his defence.
This submission was treated at length in the case of Ikuforiji v FRN (2018) 6 NWLR Part 1614 Page 142 at 165 Para A-F per Peter Odili JSC who held:
When a no case submission is made, the trial Court is not called upon to express an opinion on the evidence before it and the credibility of the witnesses is not in issue at this stage. What is expected of the trial Court is to do one of two things:
(a) To determine whether or not there is any legally admissible evidence linking the accused person with the commission of the offence with which he is charged and if the answer is yes, the Court dismisses the No Case Submission and tersely without saying more than that, there is a prima facie case for which the accused should enter his defence, or
(b) That there is indeed no case made by the prosecution for which he should be called upon to make his defence. The second option comes up where the Court of trial is satisfied that the
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prosecution witnesses have been so discredited by cross examination that no reasonable Tribunal would convict upon it. Also, that there is no legally admissible evidence linking the accused person with the commission of the offence with which he is charged. That is that there is no evidence to prove an essential ingredient of the offence.
Thus, what a Court usually considers where a no-case submission is made, is whether the prosecution has made out a prima facie case, based on the foregoing, requiring, at least, some explanation from an accused. See Oko v State (2017) 17 NWLR Part 1593 Page 24 at 72 Para F-G per Augie JSC.
In the instant case, the offences for which the Appellant and the other two accused persons were arraigned, as aforesaid, are conspiracy to commit breach of trust and criminal breach of trust by servant contrary to Sections 97 and 315 of the Penal Coderespectively.
The charges read as follow:
1st HEAD OF CHARGE
That you, Farouk Bibi Farouk the Commissioner Ministry of Land, Mahmud Bello Bari former Permanent Secretary Ministry of Land and Ahmad Ibrahim Director one stop shop Ministry of Land Kano State.
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Sometime in April 2016 at the Kano State Ministry of Land, within Kano judicial division agreed to do an illegal act to wit; commit the offence of criminal breach of trust by servant, and that the same act was done in pursuance of the said agreement you thereby committed an offence punishable under Section 97 of the Penal Code.
2nd HEAD OF CHARGE
That you, Farouk Bibi Farouk the Commissioner Ministry of Land Kano State, Mahmud Bello Bari former Permanent Secretary Ministry of Land, Kano State and Ahmad Ibrahim Director One Stop Shop Ministry of Land Kano State sometime in April 2016 at the Kano State Ministry of Land, within Kano judicial division being servants in the employment of Kano State Government and in such capacity entrusted with dominion over land situate in Kano State, do committed (sic) an illegal act to wit; you sold out a plot of land to one Baba Sharu Dala in the sum of Five Million Naira Only and issued him with a letter of grant in respect of an already existing allocation, and committed a breach of trust in respect of the said property and thereby committed an offence punishable under Section 315 of the Penal Code.
3rd HEAD OF CHARGE
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That you, Farouk Bibi Farouk the Commissioner Ministry of Land Kano State, Mahmud Bello Bari former Permanent Secretary Ministry of Land, Kano State and Ahmad Ibrahim Director One Stop Shop Ministry of Land Kano State sometime in April 2016 at the Kano State Ministry of Land, within Kano judicial division being servants in the employment of Kano State Government and in such capacity entrusted with dominion over land situate in Kano State, do committed an illegal act to wit; you issued out two Occupancy Permit C8 and C21 at Kuyan ta Inna covered by layout plan TP/KNUPDA/338 at Kumbotso in the fictitious name of one Aisha Kabeer and Maryam Ado which were sold out at the rate of three hundred thousand each and commit a breach of trust in respect of the said property and thereby committed an offence punishable under Section 315 of the Penal Code.
The main witness of the prosecution was PW1 Baba Shariff Uba Dala, a civil servant, whose evidence is that he used to go to the office of the 2nd Accused, the Permanent Secretary of the Ministry of Lands, for follow up on the papers of his superior. In the process, he requested the
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2nd Accused to assist him in getting a plot of land. He was directed to locate a vacant plot and bring notification of same to him. He located one at Kabuga Quarters, Kano and was asked to fill a form. On submitting it, the 2nd Accused told him they would investigate to see if the plot was vacant, following which they would consider his application. Soon after, he was given an allocation paper free of charge in his name. On a visit to thank the 2nd Accused, he met him discussing with the 3rd Accused about a plot for which they were looking for a buyer. He told them he was interested and was given an allocation letter in the name of one Ahmed Musa No. 731 Kabuga, which plot the 3rd Accused told him belonged to the 2nd Accused. The parties agreed at the selling price of N5 Million. He paid in instalments and collected the allocation paper. He fenced the land but was challenged and shown an existing Certificate of Occupancy over the land. He demanded that the 2nd and 3rd Accused persons either change the location of his allocation or refund his money. They both proved elusive, in consequence of which he reported the matter to the office of the Kano
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State Chairman of Public Complaints and Anti-Corruption Commission. In a bid to settle the matter, the money was refunded to him in tranches by the 3rd Accused and his nominee (PW 3).
Under cross examination, relative to the Appellant, he denied knowledge of the Appellant, also denying that he had any transaction with him and that he was surprised to see him in the dock with the other accused persons.
PW2, Dahiru Adamu, a Director of Lands at the Ministry of Lands and Physical Planning gave evidence on the procedure for obtaining title over landed property, detailing how the Government, when they want to allocate land as a fresh layout, first acquire it and send to the Planning Authority, KNUPDA, for the preparation of the layout, following which the plan goes to the Ministry of Lands for approval. The plots are demarcated and a list made by the Permanent Secretary of those to be allocated the plots. A recommendation letter for each individual is prepared by him (the witness) and passed to the Permanent Secretary who endorses it and passes it on to the Commissioner for Lands for approval. On its approval, he (PW2) prepares the Letter of Grant
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which is signed by the Commissioner. Where however, it is in respect of allocation of a vacant plot, an application is made and the Ministry verifies if it is vacant, which verification is done by the 3rd Accused and if found to be vacant, a short list of the property is given to him by the Permanent Secretary to prepare a recommendation which is then sent to the Permanent Secretary for his approval and a letter of grant prepared by and signed by him (PW2) on behalf of the Commissioner and dispatched to the Applicant.
Under cross examination, he stated that he could not tell if the Appellant took part in the preparation of the short list in respect of the land allocated to PW1. All he did was to endorse all letters of grant issued to PW1. He denied that he interfaced with the Appellant in respect of the plot allocated to PW1.
PW3, Sule Musa, testified that he is a friend of the 3rd Accused and that the 3rd Accused pleaded with him to loan him N1 Million, which sum he (PW3) paid into the account of PW1 on behalf of the 3rd Accused. Under cross examination, he denied knowledge of the purpose of the payment. He also denied knowledge of or
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had any dealings with the Appellant.
PW4, Salis Illiyasu Abubakar, testified that he is a land agent. The 3rd Accused offered the sale to him of two plots of land at Kuyanta Inna bearing the names of Maryam Ado and Aisha Kabir. He bought these two plots from him at N300,000.00 each. He resold the plots to one Alhaji Sani. He denied any transaction with the Appellant.
PW5 Ezekiel Mai Waya, attached to Police Zonal Headquarters, Kano, formerly an Investigator at the Public Anti-Corruption Commission, Kano testified that a report of criminal breach of trust by servant and cheating were reported to him by PW1 against the 2nd and 3rd Accused persons. He recorded their statements. Also, two photocopies of Occupancy Permits Nos, C8 and C21 were recovered from one Salisu (PW4) alleged to have been given to the 3rd Accused by the Appellant, for the purpose of selling in order to raise money to refund to PW1. In consequence, a statement was recorded from the Appellant. He also tendered statements from the other accused persons. He further tendered copies of the Occupancy Permits in the names of Maryam Ado and Aisha Kabir, which permits were received in
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evidence as Exhibits P4 and P5 respectively.
Under cross examination, he insisted that the evidence linked the Appellant with the offence for which he was charged. He agreed that he did not invite Maryam and Aisha, the title holders in Exhibits P4 and P5. There was also no complaint from these original allottees.
The evidence of PW6 Surveyor Yakubu, the Deputy Surveyor General, is that his duty is to look over the affairs of the department as a deputy, demarcation of plots and acquisition of land for compensation. Giving the procedure for the acquisition of title, he said the Governor can allocate directly or by a person on his behalf. If the land is direct allocation, the person will apply by a form. After processing, the Governor will sign the letter of recommendation. Where, as in this case, it is an Occupancy Permit, it is the Commissioner that will sign. He identified the two Occupancy Permits as having been signed by the Appellant.
The decision of the lower Court, overruling the no case submission and calling on the Appellant to enter their defence, is as follows:
In doing so, let me start with the 1st accused person.
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The charge is that himself, 2nd and 3rd Accused conspired and issued a letter of grant in respect of an already existing allocation thereby committed breach of trust against one Baba Sharu. It is in evidence that the said letter of grant issued by the 3 accused persons is Exhibit P1 and it is also in evidence that Exhibit P1 was signed by the 1st accused person.
Also, the charge against the Accused persons is that the conspired and issued two occupancy permits C8 and C21 in a fictitious name of one Aisha Kabeer and Maryam and sold out same thereby committed an offence of criminal breach of trust by servant. It is in evidence that C8 and C2 Exhibit P4 and P5 were also signed by the 1st Accused person and same has not been contradicted as of now with the above evidence it is necessary to call on the 1st accused person to proffer some explanation on his role in the whole transaction that gave rise to the charge against him
Contrary to the submission of the counsel for the 1st accused that calling on the 1st accused, to enter his defence amount (sic) to calling on him to prove his innocence. I think far from that, the essence at this stage is for
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the accused to give some explanation on the evidence no matter how slight which tend to link him with the offence charged. Without some explanation from the 1st Accused, this Court will be left in doubt as to the role played by the 1st Accused is (sic) issuing exhibit P1 (the subject matter of this case) and the circumstance leading to issuing same. To clear this doubt the accused need to lead evidence to clear his name.
In order to determine whether the no case submission made by the Appellants Counsel was rightly dismissed or not, it is necessary to refer to the charges under which he was arraigned and whether or not from the evidence before the Court, the conditions for relying on this plea were satisfied.
The sections of the Penal Code under which the Appellant and the other accused persons were charged are the following:
Section 96
(1) When two or more persons agree to do or cause to be done
(a) An illegal act; or
(b) An act which is not illegal by illegal means, such an agreement is called a criminal conspiracy.
(2) Notwithstanding the provisions of subsection (1), no agreement except an agreement
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to commit an offence shall amount to a criminal conspiracy unless some act beside the agreement is done by one or more parties to such agreement in pursuance thereof.
Section 315
Whoever, being in any manner entrusted with property or with any dominion over property in his capacity as a public servant or in the way of his business as a banker, factor, broker, legal practitioner or agent, commits criminal breach of trust in respect of that property, shall be punishable with imprisonment for a term which may extend to fourteen years and shall also be liable to fine.
The offence of conspiracy has been defined in the case of Kaza v State (2008) 7 NWLR Part 1085 Page 125 at 175 Para F-G per Tobi JSC quoting from Blacks Law Dictionary 6th Edition as:
A combination or confederacy between two or more persons formed for the purpose of committing by their joint effort, some unlawful or criminal act, or for some act which is lawful in itself but becomes unlawful when done by the concerted action of the conspirators for the purpose of using criminal or unlawful means for the commission of an act not in itself
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unlawful.
Put briefly, it is an agreement to do an unlawful act or to do a lawful act by unlawful means. See Kayode v State (2016) 7 NWLR Part 1511 Page 199 at 238 Para B-C per Ariwoola JSC.
Conspiracy, it has been held, is difficult to prove by direct evidence as it is often hatched in secrecy. Circumstantial evidence and inference from certain proved facts are, however enough to ground a conviction for the offence. See Kayode v State Supra at 238 Para D-E per Ariwoola JSC.
As also held in that case by the learned jurist, at Page 230 Para B-C, when an indictment contains a charge of conspiracy along with the substantive charge, the appropriate thing to do is to deal with the main charge first and then proceed later to see how far the conspiracy count has been made out in answer to the fate of the charge of conspiracy.
The main charge in the instant case is for criminal breach of trust. The elements that must be proved by the prosecution to obtain a conviction, are the following:
(i) That the accused is a clerk or a servant;
(ii) That in such capacity he was entrusted with the property in question or dominion over it;
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(iii) That he committed criminal breach of trust in respect of such property.
See Ajiboye V. Federal Republic Of Nigeria (2018) 13 NWLR Part 1637 Page 430 at 455 P A-B; (2018) LPELR- 44468(SC) Pp. 36-37, Paras. D-B) per Sanusi JSC. From the case of the prosecution, there are two transactions for which the Appellant and the other accused persons were arraigned. One is the sale of land to PW1 for which he was issued a Letter of Grant, only for him to discover that the land had already been allotted to another.The other transaction is the issue of two Occupancy Permits in the fictitious names of two women, which permits were sold by PW4 for the sum of N300,000.00 each.
With regard to the 1st transaction, the witnesses, including PW1, stated that the Appellant took no part in the transaction.
Indeed PW2, Dahiru Adamu, Director of Lands and Physical Planning stated, as aforesaid, that where the allocation is for a vacant plot, as in the transaction with the Complainant, PW1, after it has been verified by them that the land is vacant ?the short list is given to me by the Permanent Secretary for me to prepare a recommendation and send
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to Permanent Secretary for approval. I prepare a letter of grant sign (sic) on behalf of the Commissioner and dispatch it to the applicant.
Under cross examination by the Appellants Counsel, the witness stated:
I cannot tell if the 1st accused person carried out any role in the preparation of short list in respect of the land allocated to Baba Sharu. I did not interface with the 1st accused person in respect of this plot allocated to Baba Sharu
As the evidence is that it is this witness (PW2) that signs the Letters of Grant and the disclaimer by other witnesses of the involvement of the Appellant, there is thus no evidence linking the Appellant, I hold, to the 1st transaction with PW1.
The lower Court was thus wrong to have held in respect of the first transaction as follows:
It is in evidence that the said letter of grant issued by the 3 accused persons is Exhibit P1 and it is also in evidence that Exhibit P1 was signed by the 1st accused person.
This finding, was contrary to the evidence before the Court, I hold.
With respect to the 2nd transaction, the linkage to the
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Appellant can be gleaned from the evidence of PW5 and PW6.
The evidence of the investigator, PW5, inter alia, at Pages 99-100 of the record is two photocopies of Occupancy Permit No. C8 and C21 were recovered from one Salisu alleged to have been given to Ahmad Ibrahim 3rd accused by Dr. Bibi Farouk (the 1st accused) being the Commissioner of Lands to sell for the refund of the Complainants money.
He agreed under cross examination that I did not invite Mariam and Aisha.
The evidence of the Deputy Surveyor, PW 6 is that the Governor of the State, can allocate land directly to any person and can be signed for by the Governor or another on his behalf.
He stated further as follows:
In this case it is O.P. (Occupancy Permit). The Commissioner will sign directly and the allottee will come back to do the necessary process for the Letter of Grant. Normally occupancy is issued if there is no time for all the due process. O.P. can be allocated directly to the Commissioner.
Witness shown Exhibit P4 and P5.
The two documents are occupancy permits. The signature on the Exhibit P4 and
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P5 are that of the former Commissioner Bibi Farouk (1st Accused)
The evidence of PW5, the Investigator, that the Occupancy Permits were alleged to have been given to Ahmad Ibrahim (3rd accused by Dr. Bibi Farouk (the 1st accused) to sell for the refund of the Complainants money, is however not legally admissible evidence, I hold, as it not based on the knowledge of this witness but on an allegation made by an unnamed person who was not called as a witness before the Court.
Hearsay evidence and the effect thereof are given in Sections 37 and 38 of the Evidence Act 2011, as follows:
Hear say means a statement
a. oral or written made otherwise than by a witness in a proceeding; or
b. contained or recorded in a book, document or any record whatever, proof of which is not admissible under any provision of this Act, which is tendered in evidence for the purpose of proving the truth of the matter stated in it.
SECTION 38
Hearsay evidence is not admissible except as provided in this Part or by or under any other provision of this or any other Act.
In addition, the manner of
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giving oral evidence in Court is stipulated in Section 126 of the Evidence Act Supra, as follows:
SECTION 126
Subject to the provisions of Part III, oral evidence shall, in all cases whatever, be direct if it refers to-
a. a fact which could be seen, it must be the evidence of a witness who says he saw that fact;
b. to a fact which could be heard, it must be the evidence of a witness who says he heard that fact;
c. to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived that fact by that sense or in that manner;
d. if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those ground
In the absence of any direct evidence from this unnamed person testifying of the directives of the Appellant for the sale of this property to raise money for the refund to PW1 and that the allotees of these Occupancy Permits were fictitious, it is difficult to hold the 3rd ingredient of Section 315 of the Penal Code satisfied that the Appellant committed criminal
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breach of trust in respect of such property.
The lower Court was accordingly in error when it held that the fact that the Occupancy Permits were signed by the Appellant was sufficient indictment of him, without evidence before it that the allottees of those Permits were fictitious and without evidence of any instruction by the Appellant to sell the same to offset the sum paid by PW1.
Calling on him to proffer some explanation on his role in the whole transaction that gave rise to the charge against him? and that without some explanation from the 1st accused, this Court will be left in doubt as to the role played by the 1st accused to clear this doubt the accused need to lead evidence to clear his name is clearly putting the burden on the Appellant to prove his innocence, rather than on the prosecution to prove his guilt.
As has been severally settled and held recently in Fulani v State (2019) 1 NWLR Part 1653 Page 237 at 251-252 Para G-B per Galinje JSC:
Now, the law is settled that if the commission of a crime by a party to any proceeding is directly in issue in any proceeding, civil or
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criminal, it must be proved beyond reasonable doubt. The burden of proving that any person has been guilty of a crime or wrongful act is on the person who asserts it, whether the commission of such act is or is not directly in issue in the action. See Section 138(1) and (2) of the Evidence Act 2011. Section 36(5) of the Constitution of the Federal Republic of Nigeria, 1999, provides that every person who is charged with a criminal offence shall be presumed innocent until he is proved guilty. Flowing from the above therefore, the burden of proof in criminal cases is on the prosecution who must prove its case beyond reasonable doubt and a general duty to rebut the presumption of innocence constitutionally guaranteed to the accused person. This burden never shifts Underlining Mine
A prima facie case, to warrant the Appellant opening his defence, was defined by the Supreme Court in the case of Oko v State Supra, per Augie JSC at Pages 72-73 Para H-C, as:
evidence, which on the face of it, is sufficient to sustain the charge against the Accused when it is such that if uncontradicted and if believed it will be
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sufficient to prove the case against the Accused.
See also Tongo v State (2007) 12 NWLR Part 1049 Page 525 at 539-540 Para H-C per Oguntade JSC
In the instant case, there is no evidence to prove an essential element of the offence, I hold.
There is also no legally admissible evidence linking the Appellant with the commission of the offence charged.
I accordingly hold that no prima facie case has been made out to warrant the call on the Appellant to open his defence.
The lower Court was, in consequence, wrong to have over-ruled the Appellant?s no case submission and ordered the Appellant to enter his defence.
I resolve the 1st issue for determination in favour of the Appellant.
This appeal accordingly succeeds. The Ruling of the lower Court overruling the no case submission of the Appellant and ordering him to enter his defence is set aside. The Appellant is accordingly discharged and acquitted.
HUSSEIN MUKHTAR, J.C.A.: I have had a preview of the reasons for judgement just delivered by my learned brother, Oludotun Adebola Adefope-Okojie JCA. I agree that, for the same
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reasons, the Appellant is entitled to be discharged as the entire evidence adduced at the trial did not disclose any prima facie case against him.
I similarly allow the appeal and subscribe to the consequential orders made in the judgement.
SAIDU TANKO HUSSAINI, J.C.A.: My Lord, OLUDOTUN ADEBOLA ADEFOPE-OKOJIE, JCA, in the Lead Judgment just delivered, has said it all. I am one with the reasoning and conclusion contained in the lead judgment that the appeal has considerable merit and same should be allowed. The appeal succeeds and same is allowed. The appellant is discharged hence the Ruling delivered at the Court below refusing or overruling the application for a no case submission is hereby set aside. Ordered accordingly.
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Appearances:
Eloka J. Okoye, Esq. with him, A.O. Bodunrin, Esq. and Salem Ekundayo, Esq.For Appellant(s)
Rabi Ibrahim Waya (Asst. Director) with him, Binta Abdullahi Ahmad (Senior State Counsel) and Zahradden H. K/Mata (Senior State Counsel)For Respondent(s)
Appearances
Eloka J. Okoye, Esq. with him, A.O. Bodunrin, Esq. and Salem Ekundayo, Esq.For Appellant
AND
Rabi Ibrahim Waya (Asst. Director) with him, Binta Abdullahi Ahmad (Senior State Counsel) and Zahradden H. K/Mata (Senior State Counsel)For Respondent
