ADEBOWALE v. FRN
(2022)LCN/15997(CA)
In The Court Of Appeal
(ABUJA JUDICIAL DIVISION)
On Friday, July 15, 2022
CA/ABJ/CR/675/2020
Before Our Lordships:
Stephen Jonah Adah Justice of the Court of Appeal
Hamma Akawu Barka Justice of the Court of Appeal
Danlami Zama Senchi Justice of the Court of Appeal
Between
ADEKUNLE ADEBOWALE APPELANT(S)
And
FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)
RATIO
PRINCIPLES THAT GOVERNS A NO CASE SUBMISSION
In criminal trials and at the close of the case for the prosecution, the defense where they so desire is at liberty to make a no case submission, postulating that prosecution failed to place before the Court sufficient materials in support of its case, enabling it calling on the accused person to enter a defense. It has also been held to mean that as at that stage of the proceedings, there is no evidence on which the Court could convict even if the Court believed the evidence. See Ananaba Ohuka & Ors vs. The State (1988) 1 NWLR (pt. 72) 539, also reported as (1988) LPELR-2362 (SC), Osarodion Okoro vs. The State (1988) 12 SC (pt. 11) 83. This is in consonance with the constitutional presumption of innocence, which requires the prosecution to prove its case as against an accused person proving his innocence. It has been settled in the cases of Ibeziako vs. The Police (1963) 1 SCNLR 99, Adeyemi vs. The State (1991) 6 NWLR (pt. 195) 1 and Owonikoko vs. The State (1990) 7 NWLR (pt. 162) 381, which decisions the Apex Court adopted in Atoyebi vs. FRN (2018) ALL FWLR (pt. 948) 1309 at 1325-1326, that for a No case submission to be properly made and upheld, the following salient legal principles must have occasioned, that is that:
i. Where there is no evidence led by the prosecution to prove an essential element of the offence charged and/or
ii. When the evidence led by the prosecution has been discredited during cross-examination or is so manifestly unreliable that no reasonable Court or Tribunal can convict on it. PER BARKA, J.C.A
THE STANDARD OF PROOF IN CRIMINAL TRIALS
There is no gainsaying the fact that in criminal trials the guilt of the accused person to the commission of any alleged offence with which he is charged with must be proved beyond reasonable doubt. See Itodo vs. The State (2020) 1 NWLR (pt. 1704) 1 at 42. The onus of proving that accused person committed the offence, by law rests on the prosecution, and this burden never shifts except in certain peculiar situations. This state of the law flows from Section 36 (5) of the Constitution of the Federal Republic of Nigeria 1999, as amended, which provides that every person charged with a criminal offence shall be presumed innocent until proven guilty. The cases of Willams vs. The State (1992) LPELR-3492 (SC), and COP vs. Amuta (2017) LPELR-41386, are right on the point. For even if at the end of trial, the conviction of the Appellant with regards to the evidence further led after a no case submission is made, is sustainable, but the no-case submission wrongly overruled, the appellate Court is bound in allowing the no-case submission to overturn the subsequent conviction. It must be clearly understood however that the requirement of proof beyond reasonable doubt through the cases does not mean more than proving the ingredients that constitute the offence with which the accused person had been charged. See Ola vs. The State (2019) ALL FWLR (pt. 998) 323 at 342, Miller vs. Minister of Pensions (1947) 3 ALL ER 373 Alabi vs. The State (1993) 7 NWLR (307) 511. PER BARKA, J.C.A
THE ESSENTIAL ELEMENTS OF DISHONEST MISAPPROPRIATION
The allegation bordering on dishonest misappropriation under Section 308 of the Penal Code, provides that:
Whoever dishonestly misappropriates or converts to his own use any property, commits criminal misappropriation.
The three essential elements which the prosecution has to establish are that:
i. That the property in question is a movable property
ii. That the accused misappropriated or converted it to his own use; and
iii. That he did so dishonestly.
It has been held that all the three elements of the offence as identified must be proved before the requirement of the law on proof beyond reasonable doubt can be said to have been met, and were not proved, the Appellant will be entitled to an acquittal.
See, FRN vs. Yahaya (2019) 7 NWLR (pt. 1670) 85 at 107, Nwokedi vs. COP (1977) 3SC 35, Alabi vs. The State (1993) 7 NWLR (pt. 307) 511. PER BARKA, J.C.A.
THE PRIMARY DUTY OF THE TRIAL COURT
It is trite law, that the evaluation of relevant and material evidence and the ascription of probative value thereto resides with the Court of trial owing to its singular advantage of having seen and observed the witnesses first hand. See, PC Imo Akpakpan vs. The State (2021) LPELR-56220 (SC), State vs. Azeez (2008) 14 NWLR (pt. 1108) 439, The State vs. Sunday Oko Chukwu (2021) LPELR-56610 (SC). PER BARKA, J.C.A.
HAMMA AKAWU BARKA, J.C.A. (Delivering the Leading Judgment): The Appellant, Adekunle Adebowale was before his unfortunate conviction, the Accountant of the Nigerian institute of Building (NIOB). Sometimes in the year 2013, officials of the institute, petitioned the Economic and Financial Crimes Commission (EFCC), alleging that the Appellant misappropriated the sums of N2,451,900 (Two million four hundred and fifty-one thousand nine hundred Naira only) which sums forms part of the money entrusted to him in his official capacity, and also forged various documents showing that various sums of money belonging to the institute, was with the Access Bank.
Consequent to that, Appellant was arraigned and charged upon a three-count charge which reads as follows: –
COUNT ONE
STATEMENT OF OFFENCE
Forgery contrary to Section 362 (a) of the Penal Code and punishable under Section 364 of the same law.
PARTICULARS OF OFFENCE
That you Adekunle Adebowale sometime between January 2012 and December 2013 within the Judicial Division of the High Court of Justice of the FCT forged seventy-nine (79) pieces of documents captioned ‘Access Bank Deposit Slip’ filled in favour of Nig Institute of Building, account number 0044605391 and did commit an offence contrary to Section 362 (a) and punishable under Section 364 of the Penal Code LFN (Abuja) 1990
COUNT TWO
STATEMENT OF OFFENCE
Using as genuine a forged document contrary to Section 366 of the Penal Code and punishable under Section 364 of the same law.
PARTICULARS OF OFFENCE
That you Adekunle Adebowale sometime between January 2012 and December 2013, within the Judicial Division of the High Court of Justice of the FCT, forged seventy-nine (79) pieces of documents captioned ‘Access Bank Deposit Slip’ filled in favour of Nig Institute of Building account number 0044605391 and caused the said documents to be used as genuine and you thereby committed an offence contrary to Section 366 and punishable under Section 364 of the Penal Code LFN (Abuja) 1990.
COUNT THREE
STATEMENT OF OFFENCE
Criminal Misappropriation, contrary to Section 308 of the Penal Code and punishable under Section 309 of the same law
PARTICULARS OF OFFENCE
That you Adekunle Adebowale (being the Accountant of Nigerian Institute of Building) sometime between January 2012 and December 2013 within the Judicial Division of the High Court of Justice of the FCT while in such capacity did dishonestly misappropriate the sum of N2,451,900.00 (Two million, four hundred and fifty-one thousand, nine hundred Naira only) which was part of the money you were entrusted to receive on behalf of the Nigerian Institute of Building and you thereby committed an offence contrary to Section 308 of the Penal Code and punishable under Section 309 of the same Act.
Appellant having pleaded not guilty, hearing in the case commenced on the 23rd of February, 2016, with the prosecution calling four witnesses, and in the course of which exhibits A1- A85, 88-95 as well as exhibits 86 and 87 were tendered in evidence.
Appellant also gave evidence in his defense and tendered exhibits 96-102 in evidence. On the 28th of October 2016, Appellant Counsel made a No Case submission, which the Court by its ruling delivered on the 5th May, 2017 overruled. The Appellant thereafter entered his defense by adducing evidence and thereafter closed his case. Final addresses were then ordered, filed and adopted paving way to the vexed judgment delivered on the 3rd of July, 2020, convicting the Appellant, and sentencing him in the following manner: –
“The Court had heard the Defendant Counsel but the law will always take its natural course. That being the case, this Court therefore hereby sentences you, Adekunle Adebowale to 2 years in prison for criminal misappropriation of the money of the Institute.
This Court also sentence you Adekunle Adebowale to 5 years imprisonment without option of fine for the offence of forgery. The 2 sentences shall run concurrently.
Application for the total refund of the money in issue N2,451,900 to be refunded by the convict Adekunle Adebowale, is granted as prayed.
The convict should be detained at the EFCC facility pending the time there is space in the Prison from now till 31st day of July, 2020.”
Dissatisfied with the lower Court’s ruling on the No Case submission as well as the conviction and sentence meted out, Appellant on 15/7/2020 filed a Notice of Appeal predicated on six grounds of appeal. The extant Notice of Appeal is the amended Notice of Appeal filed with the leave of Court on 23/2/2021 but deemed filed on the 23/9/2021; now predicted on 12 grounds of appeal. The appeal having been properly filed before the Court on the 19th of August, 2020, Appellant filed a brief of argument on the 23/3/2022 deemed on the 31/5/2022, and upon receipt of the Respondents brief filed on the 14/4/2022, though deemed properly filed on the 31/5/2022, Appellant filed a reply brief on the 6/5/2022, consequentially deemed on the same 31/5/2022.
On the same 31/5/2022 being the scheduled hearing date, parties identified their respective processes adopted the same as their arguments and urged the Court to grant their respective prayers. Whereas the appellant prayed the Court to allow the appeal and to set aside the decisions of the trial Court, the respondent urged the Court to dismiss the appeal and thereby affirm the conviction and sentence of the appellant by the trial Court.
In the appellant’s brief, settled by Aliyu D. Husein, but argued by Mahmud Abubakar Magaji (SAN), and specifically at page 3 of the brief, the following issues were identified for the resolution of the appeal:
i. Whether the trial Court was right to have overruled the No Case submission made by the Appellant in view of the Respondent’s failure to link the appellant with the offences charged and failure to prove same ingredients of the 3 offences for which the appellant was charged. (Distilled from Ground 9)
ii. Considering the nature of the documentary and oral evidence led by the Prosecution at the trial, whether the Prosecution proved beyond reasonable doubt that appellant committed the offences of forgery and criminal misappropriation as charged. (Distilled from Ground 1, 2, 3, 4, 5, 6, 11 and 12)
iii. Considering the fact that Exhibits A1-A85 were dumped and not tied, demonstrated or linked through witnesses during trial, whether the trial Court was right to have relied on them in arriving at its decision (Distilled from Ground 7)
iv. In view of the fact that the Appellant served two (2) subpoena duces tecum on the nominal complainant (Nigerian Institute of Building) requesting for relevant and material record of receipts, letters, payment tellers, treasurers report and payment vouchers for the period between 2011-2013 and Letters of formalization of cash flow procedures as well as authorization and approval with respect to vouchers which the Complainant refused to produce, whether the trial Court was not wrong when it failed to invoke the presumption of withholding evidence against the Respondent. (Distilled from Ground 8)
v. Whether the failure of the Court to properly evaluate Exhibits 86, 87, 97, 98, 99, 100 as well as the testimony of DW1 at the trial is not a denial of fair hearing capable of affecting the judgment. Distilled from Ground 10.
ACE II, Faruk Abdullah, who settled the brief on behalf of the Respondent at page 10 of the brief identified two issues capable of resolving the appeal:
i. Whether the Respondent by the evidence adduced before the learned trial Court proved its case in the three counts beyond reasonable doubt to support conviction of the appellant.
ii. Whether the trial Court was not right in dismissing the submission of No Case to answer made by the Appellant.
I have in the circumstance studied the grounds of appeal, the submissions of the learned counsel, and the issues proffered by the learned counsel on both sides. It seems to me that issues 2-5 crafted by the learned counsel for the Appellant turns on whether the lower Court was right in reaching its decision that prosecution proved the offences alleged against the Appellant as required by law. That being the case, I find the issues distilled by the learned Respondent’s counsel more concise and thereby elect to be guided by the two issues formulated starting with the second issue.
ISSUE TWO.
Whether the trial Court was not right in dismissing the submission of No case to answer made by the Appellant.
The learned counsel for the Appellant made submissions on the issue from pages 4-9 of the brief submitting that the Respondent failed to link the Respondent with the commission of the offence for which he stood trial and also failed to prove the essential ingredients of the offence, and therefore the trial Court ought to have upheld the No case submission made. Learned counsel went on to analyze the pieces of evidence adduced by the prosecution witnesses, on the three-count charge, concluding that none of the four witnesses led direct, positive and unequivocal evidence linking the appellant with the committal of the alleged offence with which the Appellant was charged necessitating the Appellant to enter his defense.
Responding, the Respondent’s counsel alluded to the presentation made by the Respondent in its address situated at pages 750-762 of the record and the presentation made in paragraphs 3.1-3.5 and 5.3-5.5, and the ruling of the Court thereon, positing that the lower Court was right in having ordered the Appellant to enter his defense.
In criminal trials and at the close of the case for the prosecution, the defense where they so desire is at liberty to make a no case submission, postulating that prosecution failed to place before the Court sufficient materials in support of its case, enabling it calling on the accused person to enter a defense. It has also been held to mean that as at that stage of the proceedings, there is no evidence on which the Court could convict even if the Court believed the evidence. See Ananaba Ohuka & Ors vs. The State (1988) 1 NWLR (pt. 72) 539, also reported as (1988) LPELR-2362 (SC), Osarodion Okoro vs. The State (1988) 12 SC (pt. 11) 83. This is in consonance with the constitutional presumption of innocence, which requires the prosecution to prove its case as against an accused person proving his innocence. It has been settled in the cases of Ibeziako vs. The Police (1963) 1 SCNLR 99, Adeyemi vs. The State (1991) 6 NWLR (pt. 195) 1 and Owonikoko vs. The State (1990) 7 NWLR (pt. 162) 381, which decisions the Apex Court adopted in Atoyebi vs. FRN (2018) ALL FWLR (pt. 948) 1309 at 1325-1326, that for a No case submission to be properly made and upheld, the following salient legal principles must have occasioned, that is that:
i. Where there is no evidence led by the prosecution to prove an essential element of the offence charged and/or
ii. When the evidence led by the prosecution has been discredited during cross-examination or is so manifestly unreliable that no reasonable Court or Tribunal can convict on it.
At the stage of the consideration of whether a facie case has been made out or not, the trial Court’s main concern is to see whether a prima facie case requiring the accused to offer some explanation has been made and not whether the evidence led can justify a conviction. The consideration of the credibility of witnesses, or the evaluation of evidence is not necessary at that stage. Indeed, Rhodes-Vivour JSC, in the case cited, pointed out that whether or not the Court believes the evidence does not arise, neither is the credibility of the witnesses. The learned jurist however opined that, if the Court might convict on the evidence so far presented before it, then the prosecution has presented a case for which the accused person might be called upon to answer being that a prima facie case simply means a fact presumed to be true until disproved. I believe this is still the state of the law on the issue.
The lower Court in its ruling on the no case submission, placed reliance on the guidance offered in the cases of Aituma vs. The State (2006) 10 NWLR (pt. 989) 452, and Ibeziako vs. The Police (supra), thereby proceeding thus:
“No Court will succumb to any ploy by a party going into the evaluation of evidence in a bid to establish a no case submission. The simple question the Court wants answer to is, has the prosecution given the evidence adduced shows that the defendant is connected with the offence alleged? Once there is any slight trace linking the Defendant to the offence the Court will not hesitate to Rule that the Defendant has a case to answer.
Once that is the case, the proceeding will continue and the defense is called to open its defense. In this case, at this stage the prosecution had opened its case called witnesses, tendered documents to show that the defendant is at the center of the alleged offences. The defendant is an Accountant of the Nigerian Institute of Builders-nominal complainant. The issue is on missing money- misappropriation of about N2,451,900 belonging to Nigerian Institute of Builders. It also involves documents- Bank tellers in the cause of the routine auditing of the account of the Nigerian Institute of Builders. It was discovered their disparity in the Bank statement of the Nigeran Institute of Builders in that the tellers of Access Bank did not reflect in the statement of the accountant. Meanwhile, the Defendant was at that time the Accountant of the Nigerian Institute of Builders. It was his responsibility to maintain the Book of the Nigerian Institute of Builders. It was equally a policy of the Nigerian Institute of Builders that it should not accept cash from any member who pays for his membership due. It was discovered that cash receipts were allegedly issued and the prosecution has tendered the document showing the document stamped and issued to those members in which payments were made at different times/dates by cash but which tellers showing continuous serial Nos, same number. A new auditor was called because the Nigerian Institute of Builders lost confidence in the previous Auditor. All those happened while the Defendant was the head Account of the Nigerian Institute of Builders.
Investigation has been conducted. The same Defendant had made statement to EFCC. Some of the documents submitted to the investigating agency were forensically analyzed showing that there was fraud. Physical investigation has also been carried out establishing fraud. A manager of the Access Bank was called to and impugned the stamp in the tellers which were tendered and admitted in evidence. That is the situation so far. Going by the above there is no doubt that the defendant is at the centre of the debacle in this case. The prosecution has raised issues and allegation against the Defendant. The Defendant was the Accountant when all the alleged offence were committed. Every material evidence adduced pointed to the fact that the Defendant has several explanations to make to this Court as regards this case and the offences alleged. The prosecution has very successfully adduced several credible evidence which the Defendant has not been able to impugn or discredit during cross-examination.
It is therefore pertinent that he opens his defense call witnesses and adduces his own evidence because it is very obvious that he has a case to answer. If this case is to end at this stage it is clear that with the evidence adduced so far, the prosecution has proved all the essential elements of the offences in which the Defendant is standing trial. The prosecution has established a prima facie case against the Defendant though no weight has been attached on the evidence/ Exhibits not yet evaluated”.
I fail to see how the lower Court could be faulted in the circumstance and accordingly resolve the issue against the appellant.
ISSUE ONE.
Whether the respondent by the evidence adduced before the learned trial Court proved its case in the three counts beyond reasonable doubt to support conviction of the appellant.
As earlier stated, this issue also takes care of the submissions of learned counsel with respect to issues 2-5 crafted by the Appellant’s counsel, argued from pages 9 to 30 thereof.
Learned counsel for the Appellant drew the attention of the Court to the provision of Section 135 (1) of the Evidence Act 2011, dealing with the burden of proof in criminal proceedings, and further referred to the cases of AIabi vs. The State (1993) 7 NWLR (pt. 307) 511, Jibrin vs. The State (2020) 4 NWLR (pt. 1714) and Afuape vs. The State (2020) 17 NWLR (pt. 1754) 381 amongst others on the need for the prosecution to prove the allegation against the accused beyond reasonable doubt. He argued that the elements of the allegation bordering on the offences of forgery and using as genuine a forged document and criminal misappropriation were not established from the evidence adduced, and even were held to have adduced, there was no evidence that the offences were done by the appellant. He argued that appellant in his evidence stated that he was confronted with exhibits A1-A85, the tellers only after an unauthorized audit of the institute as against the regular auditors from the firm of Nath Kolo & Co which did not indict the Appellant. He argued also that his defense that the firm of Otoyo Emah & Co were complicit in the alleged forged tellers was not investigated, contending that the failure to so investigate the defense put forward raised a reasonable doubt regarding who forged exhibits A1-A85 as there was nothing on the face of the documents showing that the exhibits belong to the Appellant. He relied on the case of Dairo vs. FRN (2020) 10 NWLR (pt. 1733) 482 at 507, per Adah JCA on the burden on the prosecution to prove the offence of forgery beyond reasonable doubt against the accused person, and the meaning of the phrase beyond reasonable doubt citing Adepoju vs. The State (2018) 15 NWLR (pt. 1641) 103 at 122, to contend that prosecution failed to link the Appellant with the forged documents.
On the use made of the alleged forged documents, it was argued that none of the prosecution witnesses testified that Appellant presented the exhibits to anybody, and placed reliance on the stipulation of Section 363 of the Penal Code, maintaining that the prosecution failed to show the involvement of the appellant in the commission of the offence.
Further submitting on the offence of misappropriation as provided in Section 308 of the Penal Code, learned counsel argued that the prosecution failed to prove the ingredients of the offence, and drew the Court’s attention to exhibits 97-100, being receipts, internal memo and bank tellers totaling about three million naira which expenditure as made on the instruction of the president of the institute. He insisted that the prosecution failed woefully in establishing that Appellant caused wrongful gain to himself, and relied on the holding of Peter-Odili JSC, in Alabi vs. The State (1993) 7 NWLR (pt. 307) 511. Further relying on the cases of Eze vs. The State (2017) LPELR-42006 (CA), Idagu vs. The State (2018) LPELR-44343 (SC), and Dairo vs. FRN (supra) at 513 it was submitted for the Appellant that flowing from the offences of forgery and using as genuine forged documents, the necessary mens rea needs to be established, which the prosecution failed to achieve in the case at hand. He urged the Court to hold that the prosecution failed to prove its case as demanded by law and to thereby resolve the issue in the appellant’s favor.
Further submitting, learned counsel complained that exhibits A1-A85 were dumped and not tied or linked to the evidence by the witnesses, and relied on Ucha vs. Elechi (2012) 13 NWLR (pt. 1317) 330 at 360, and Omisore vs. Aregbesola (2015) 15 NWLR. He maintained that the prosecution merely dumped the documents on the Court without placing any premium, and therefore the Court should not place any value thereon. Further relying on cases on the issue learned counsel maintained that the lower Court at pages 935-037 of the record erred in relying on the documents that were dumped on the Court to establish forgery, positing in line with the decision of this Court in Terab vs. Lawan (1992) 3 NWLR (pt. 231) at 590, that a party relying on documents in proof of his case must specifically relate each of such documents to that part of his case in respect of which the document is being tendered. He urged the Court not to speculate nor to were relied upon bark on a voyage of discovery in determining the purpose for which exhibits A1-A85 tendered in evidence was to serve, and thereby hold that the exhibits serve no useful purpose.
In further submission, the learned counsel stated that Appellant as DW1, having made reference to certain documents in the possession of the nominal complainant, and which it sought to rely upon, thus serving two subpoena duces tecum, which the Respondents failed to comply with, the Court should invoke the provisions of Section 167 (D) of the Evidence Act 2011, and to hold that the evidence sought if produced would have been unfavorable to the Respondents. The cases of Buhari vs. Obasanjo (2005) 13 NWLR (pt. 941) 1, and Ekaidem vs. The State (2012) All FWLR (pt. 631) 1587 at 1612.
Lastly on the issue, learned counsel complained that the lower Court failed to properly evaluate exhibits 86, 87, 96, 97, 98, 99, 100 as well as the testimony of the Appellant as DW1. Learned counsel referred to the general principle in the evaluation of evidence expressed in the case of Aghobamien vs. Aghobamien (2017) ALL FWLR (pt. 889) 572, per Oniyangi, JCA, and also referred to the evidence led by the Appellant at pages 888 and 889, and while commending to the Court the guidance offered in the case of Ogundalu vs. Macjob (2015) ALL FWLR (pt. 784) 103 at 117, analysed the evidence proffered by the Appellant both oral and documentary, and urged the Court to resolve the issue in favor of the Appellant.
Responding to the submissions, the learned counsel for the Respondent submitting on whether the Respondent proved the case against the Appellant beyond reasonable doubt alluded to uncontroverted points from the evidence of the PW2, which is that Appellant was the custodian of all the documents in the accounts section of the NIOB, that tellers Exhibit A1-A85 the subject of the investigation bore several amounts which were not reflected in the NIOB statement of account exhibit 90 received from the Access bank, and that the PW2 took the specimen signatures of the Appellant which comprises the Appellant’s handwriting in the receipts he issued in the normal course of his work and that obtained during investigation.
On whether the documents were forged, learned counsel states that the answer to the pertinent question lies in the testimony of PW3 and his forensic report exhibit 95, tendered by the PW3 showing that Appellant made the documents marked as exhibits X-X4, X6-X18, X20-X30, X32-X54, X56-X72 and X74 – X83.
Learned counsel on Section 308 of the Penal Code alluded to the three ingredients constituting the offence of criminal misappropriation, submitting that Respondent proved that Appellant misappropriated the sums of over Two million Naira alleged against him. He argued that the Appellant was dishonest having caused wrongful gain to himself, and concluded on the authority of Miller vs. Minister of Pension (1974) 2 ALL ER 372 at 373 and Alake vs. The State (1991) 7 NWLR (pt. 205) 567, that the prosecution proved the offence of criminal misappropriation against the accused person beyond reasonable doubt.
Also submitting on counts one and two of the charge under Section 362 of the Penal Code, as well as Section 363 thereof, learned counsel made reference to the three ingredients establishing the offence of forgery, submitting that the PW1 did testify to the effect that Appellant submitted the forged documents from the account department to the forensic auditors to carry out their audit, and therefore knew that the documents were forged. On whether the documents were properly demonstrated or dumped on the Court, counsel argued that the documents were not dumped on the Court, and referred to the testimony of the PW3. On whether the lower Court appropriately evaluated the pieces of evidence, oral and documentary before it, learned counsel referred to the records of the lower Court from pages 934-940 of the record, contending that the lower Court evaluated the evidence led as required by law, conclusively urging upon the Court to resolve the issue against the appellant.
There is no gainsaying the fact that in criminal trials the guilt of the accused person to the commission of any alleged offence with which he is charged with must be proved beyond reasonable doubt. See Itodo vs. The State (2020) 1 NWLR (pt. 1704) 1 @ 42. The onus of proving that accused person committed the offence, by law rests on the prosecution, and this burden never shifts except in certain peculiar situations. This state of the law flows from Section 36 (5) of the Constitution of the Federal Republic of Nigeria 1999, as amended, which provides that every person charged with a criminal offence shall be presumed innocent until proven guilty. The cases of Willams vs. The State (1992) LPELR-3492 (SC), and COP vs. Amuta (2017) LPELR-41386, are right on the point. For even if at the end of trial, the conviction of the Appellant with regards to the evidence further led after a no case submission is made, is sustainable, but the no-case submission wrongly overruled, the appellate Court is bound in allowing the no-case submission to overturn the subsequent conviction. It must be clearly understood however that the requirement of proof beyond reasonable doubt through the cases does not mean more than proving the ingredients that constitute the offence with which the accused person had been charged. See Ola vs. The State (2019) ALL FWLR (pt. 998) 323 at 342, Miller vs. Minister of Pensions (1947) 3 ALL ER 373 Alabi vs. The State (1993) 7 NWLR (307) 511.
It is clear from the record that Appellant was arraigned before the lower Court accused of crimes bordering on misappropriation of public funds and forgery.
The allegation bordering on dishonest misappropriation under Section 308 of the Penal Code, provides that:
Whoever dishonestly misappropriates or converts to his own use any property, commits criminal misappropriation.
The three essential elements which the prosecution has to establish are that:
i. That the property in question is a movable property
ii. That the accused misappropriated or converted it to his own use; and
iii. That he did so dishonestly.
It has been held that all the three elements of the offence as identified must be proved before the requirement of the law on proof beyond reasonable doubt can be said to have been met, and were not proved, the Appellant will be entitled to an acquittal.
See, FRN vs. Yahaya (2019) 7 NWLR (pt. 1670) 85 at 107, Nwokedi vs. COP (1977) 3SC 35, Alabi vs. The State (1993) 7 NWLR (pt. 307) 511.
The complaint of the Appellant herein is that prosecution failed to prove that Appellant dishonestly misappropriated the alleged sums of N2,451,900.00 in view of the evidence adduced by the prosecution and the defense. In other words, Appellant seems to query the evaluation and conclusion of the lower Court on the issue.
It is trite law, that the evaluation of relevant and material evidence and the ascription of probative value thereto resides with the Court of trial owing to its singular advantage of having seen and observed the witnesses first hand. See, PC Imo Akpakpan vs. The State (2021) LPELR-56220 (SC), State vs. Azeez (2008) 14 NWLR (pt. 1108) 439, The State vs. Sunday Oko Chukwu (2021) LPELR-56610 (SC).
In the reasoning of the lower Court, from pages 934-936 of the record, to the effect that:
“In this case the allegation is on misappropriation of N2,451,900.00 by the defendant based on the money he collected cash from members of the institute. OrdinariIy, by the provision of the Institute’s laws their accountant (defendant) is not supposed to collect money case from the members. All payments were to be made by payment into the bank account of the institute by members who will only present the teller or evidence of payment to the accountant of the institute. But in this case, the defendant collected case unauthorized from the members without any legal backing. He had confirmed this in his testimony in the course of this case. He only lamely stated that he used part of the said cash he collected to run the meeting and other affairs of the institute. He did not call any witness to confirm that he collected money based on authorization of his superiors. Meanwhile, the charge is based on forgery of documents, bank tellers belonging to Access Bank which going by the report of the EFCC, some of the tellers showing various payments and supposed lodgments by members, never saw the light of the day in the account of the institute as monies did not reflect in the said institute account. Hence the allegation of misappropriation and forgery”.
It is clear therefore that the lower Court firmly resolved the question as to whether the Appellant misappropriated public funds in the affirmative, thus generating the instant appeal.
A close scrutiny of the record would show that there is no dispute as to whether the property in issue, in this case, money is movable property. This much is common ground. The area of contention centers on whether there was tangible proof that it was the Appellant who misappropriated the alleged sums of money, and whether he did so dishonestly. Learned counsel for the Appellant while submitting on the issue leveraged on the findings of the lower Court, contending amongst others that the trial Court’s reliance on the testimony of the PW1 and PW2, the documents exhibits A1-A85 allegedly dumped on the Court, and the fact that exhibits 86-100 tendered by the Appellant in his defense were not considered, clearly means that there was no such evidence linking the Appellant with the commission of the alleged crime.
My lords, the Apex Court in the case of the State vs. Sunday Oko Chukwu (supra), per Peter-Odili JSC, pointed out what the lower Court faced with the evaluation of the evidence placed before him should do. Firstly, the Court is to identify the nature and the quantum of the evidence against the accused person, secondly, it determines whether such evidence, having regard to its source was legally received against the accused person, whether the evidence received is credible and lastly whether the evidence is sufficient and of such a character that can be relied upon to justify a finding of guilt.
Evidently, the prosecution from the record is shown to have called PW1, Builder Tanko Mohammed Bello, the National Secretary of the Nigerian Institute of Builders from the year 2011-2013. His evidence is located at pages 826-841, and Pw2, one Solomon Ternense a police DSP who also gave evidence from pages 842-862, while Pw3 Dabi Gideon Dashau of the EFCC testified from pages 863-876, and Pw4 Uche Okere the Branch Manager of Access Bank, Garki II, Abuja testified from pages 876-880. It is these pieces of evidence which the lower Court considered, together with the evidence of the defendant, culminating to the verdict arrived at.
I have laboriously studied the record of proceedings in its entirety, including all the exhibits and case law cited. I also studied the submissions of the learned counsel in-depth, and it seems to me that the PW1 and PW2 before the lower Court gave convincing evidence to the effect that Appellant, whose responsibility was to accept bank tellers from members as against physical cash, thus ensuring that the institute’s money finds its way into the institute’s account, admitted receiving cash from members, which cash was not remitted to the institute’s account, but rather according to him, utilized on directives which he failed to prove.
To worsen his situation, the Appellant tried to blindfold his employers, by forging tellers of the institute’s bank to show that the sums of money unlawfully utilized was in fact in the institute’s account. The conclusion by the lower Court therefore cannot be faulted. In any case, can it be said that Appellant was dishonest, from all the circumstances disclosed? I do not think so. The mere fact that Appellant tried to cover his tracks by introducing foreign tellers, showed that his evidence to the effect that his superiors gave him oral directives, leading to the said sums of money being expended cannot be believed.
The other count of the charge relates to the offence of forgery, and by Section 363 of the Penal Code, forgery is when a person makes any false document or part of a document with intent to support any claim or cause damage to the public or person. See Brown vs. The State (2012) 3 NWLR (pt. 1287) 207. See also Mobil Producing (Nig) Unltd vs. Hope (2016) LPELR-41191 (CA), which defined the crime of forgery to mean the making, altering or completing of an instrument by someone other than the ostensible maker or drawer or an agent of the ostensible maker or drawer. The Apex Court in APC vs. PDP, (2015) ALL FWLR (pt. 791) 1493, defined the word forge in simple language to mean:
“To make a copy or an imitation of something in other to deceive people”
The elements thereof, as can be seen in Oduah vs. FRN (2012) 11 NWLR (pt. 1310) 76, includes the fact that:
i. The document is false
ii. Knowledge that the false document or writing is false
iii. Intention that same be used or acted upon as genuine
iv. To the prejudice of any person or with intent that any person may in the belief that it is genuine, be induced to do or refrain from doing any act.
It is essential that it be proved, that it was the accused person that forged the document(s) in question. See Alake vs. The State (1992) LPELR-403 (SC), Smart vs. The State (1974) LPELR-3076 (SC), Idowu vs. The State (1998) LPELR -1427 (SC), Folorunsho vs. FRN (2017) LPELR-41972 (CA).
Evidence from the records show that as at the time of the incident, Appellant was the custodian of the documents in issue, and that exhibits A1-A85 amongst others were the subject of investigation bearing various amounts, as emanating from the institute’s bank, but which were not reflected in the said account with receipts issued. The lower Court minutely examined whether exhibits A1-A85 were forged and by whom from pages 936-938 in arriving at the conclusion that Appellant forged the documents (tellers) under consideration. Appellant did not deny the fact that his specimen signatures were taken in investigating who forged the documents in question. PW3, professionally examined the documents, arriving at the conclusion that the author of exhibit A-A354, the specimen handwriting of the Appellant, equally made the exhibits X-X4, X6-X18, X20-X30, X32- X54, X56-X72 and X74-X83 being the disputed tellers. I cannot see how the Appellant can wriggle himself out of this tight corner. Aggregating the facts that sums of money were received by the Appellant not in the normal scheme of things or duty, and that such amounts were not paid into the account of the institute, but expended allegedly in the running of the activities of the institute for which there is no proof, and the further effort made to show through the forged documents that indeed the sums were lodged in the institute’s account, which from the evidence of the PW4 is false, conclusively points to the fact that Appellant not only misappropriated the sums of money as alleged, but that he authored the forged documents with the intention of deceiving the institute that the sums of money was in fact or had been remitted to the bank in the account of the institute. The aggregate of all the circumstance, shows that Appellant was dishonest in his dealings in the office which he occupied and the lower Court right not to have believed him. I am not swayed at all by the story crafted by the Appellant, and thereby fail to see how the consideration of exhibits 96-100 helps his case. I wholly agree with the trial Court that prosecution proved its case as required by law and accordingly resolve the issue against the Appellant.
Hence the two issues having been resolved against the Appellant, the inevitable conclusion is that the appeal is wanting in merit, and accordingly dismissed. The consequence is that the judgment of the High Court of the Federal Capital Territory, Abuja delivered on the 3rd day of July, 2020, wherein the Appellant was sentenced to five years imprisonment as well as a refund of the sums of N2,451,900 is hereby affirmed.
STEPHEN JONAH ADAH, J.C.A.: I have had the benefit of reading in draft, the judgment just delivered by my learned brother, Hamma Akawu Barka, JCA.
I am in complete agreement with the reasoning and conclusion which I adopt as mine.
The judgment of the trial Court considered adequately the evidence before it and came to the right conclusion. In law, where the trial Court undertook a thorough consideration of evidence and found that the charges enacted against the Appellant were proved beyond reasonable doubt, this Court as an appellate Court has no business tinkering with the said decision. The judgment of the trial Court was well considered and rendered. I totally agree with my learned brother in the lead judgment that this appeal is lacking in merit. I too, dismiss the appeal. I abide by the consequential orders as made therein.
DANLAMI ZAMA SENCHI, J.C.A.: I am opportuned to read in draft, the lead judgment of my learned brother, HAMMA AKAWU BARKA, JCA just delivered and I agree with the reasoning, finding and conclusion reached therein that this appeal lacks merit and it is dismissed by me as well.
The judgment of the High Court of the Federal Capital Territory, Abuja delivered on 03/07/2020 sentencing the Appellant to five years imprisonment and a refund of N2,451,900.00 is hereby affirmed.
Appearances:
Aliyu D. Husain, with him, B.C Ashaolu For Appellant(s)
Faruk Abdullahi For Respondent(s)