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AKINGBADE v. STATE (2022)

AKINGBADE v. STATE

(2022)LCN/16148(CA)

In the Court of Appeal

(CALABAR JUDICIAL DIVISION)

On Tuesday, March 08, 2022

CA/C/420C/2018

Before Our Lordships:

Muhammed Lawal Shuaibu Justice of the Court of Appeal

Balkisu Bello Aliyu Justice of the Court of Appeal

Ademola Samuel Bola Justice of the Court of Appeal

Between

AKINTOLA OLAKUNLE AKINGBADE APPELANT(S)

And

THE STATE RESPONDENT(S)

 

RATIO

THE CONDITIONS TO BE SATISFIED FOR A NO-CASE SUBMISISON TO BE PROPERLY MADE AND UPHELD

In the famous case of UBANATU V. C.O.P. (2000)2 NWLR (prt. 643) 115 at 141, the Supreme Court has held that a submission of no case to answer may be properly made and upheld-
(a) When there has been no evidence to prove an essential element in the alleged offence, or
(b) Even when evidence has been adduced on the essential elements, the evidence has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable Tribunal could safely convict on it.
The apex Court also stressed the distinction between the two conditions above, that if an essential element is missing, the question of discredited evidence through cross-examination will certainly not arise. PER SHUAIBU, J.C.A.

MUHAMMED LAWAL SHUAIBU, J.C.A. (Delivering the Leading Judgment): This appeal is against the interlocutory ruling of the High Court of Akwa Ibom State, sitting in Uyo by Honourable Justice Ukana delivered on 16th March, 2018, overruling the appellant’s no case submission.

The facts which culminated into this appeal as encapsulated in the respondent’s brief of argument are summarized as follows:-
The complainant, Sundubros Investment Limited was a customer and key distributor of Nigerian Breweries Plc.; an employer of the appellant herein. As a distributor, the complainant only received supplies after payment for such supplies vide customer’s order and deposits either through cheque, bank draft or any other method approved by the company.

​Upon reasonable suspicion that the appellant in conjunction other employees of the company had fraudulently dealt with her, (leading to huge financial loss and collapse of the complainant’s business), the complainant caused a petition alleging fraudulent dealings against the company and some of her staff. After discrete investigation, it was discovered that a large scale of fraud running into several millions of naira had been committed against the complainant and this resulted in filing a 207 counts of charge against the Nigerian Breweries Plc and Eight of its employees including the appellant.

During the trial, the prosecution called two witnesses and tendered several documentary exhibits to prove its case before it finally closed its case. At the end of the prosecution’s case, the respondent decided to make a no case submission wherein issues were joined on the said no case submission. Learned trial judge in a considered ruling overruled the no case submission and thereby ordered the appellant to enter his defence on the charge.

Dissatisfied, appellant approached this Court on appeal after securing leave from the trial Court. His initial notice of appeal filed on 16/3/2018 contains five grounds of appeal but by the leave of this Court, appellant amended his notice of appeal which was deemed filed on 9/11/2021. The amended notice of appeal contains seven grounds of appeal. Distilled from the said amended notice of appeal, learned Senior Counsel, Joe Agi formulated three issues for the determination of this appeal thus:-

1. Whether the failure of the prosecution to investigate the alibi put forward by the appellant and rather relied on speculative evidence that the appellant started the whole stealing because he was the sale’s representative attached to Sundubros Investment Limited amount to proving a prima facie case requiring the appellant to put up a defence.

2. Whether the contradictions and inconsistencies as to the total monetary value of products allegedly not supplied by Nigerian Breweries to the complainant which are at variance with the amended charge/counts of 207 is not speculative and fatal to the prosecution case requiring the upholding of the no case submission.
3. Whether the refusal of the prosecution to produce the dispatch/delivery registers of Nigerian Breweries Plc taken from it during investigation evidencing records of delivery to the complainant and failure to call vital witnesses who received products on behalf of complainant did not amount to withholding of evidence by the prosecution.

Learned counsel for the respondent – Gabriel O. Otor, Esq., on his part formulated two issues:-
1. Whether the appellant who is a staff of the Nigerian Breweries Plc can be charged for the alleged criminal offences arising in the course of his employment contrary to Sections 65, 66 and 70 of the Companies and Allied Matters Act.
2. Whether from the proof of evidence before the honourable Court, the trial Court was right when it held that there is a prima facie case against the appellant when the lower Court refused the appellant’s no case submission.

I have carefully examined the record against the backdrop of the above formulations and I am of the view that the respondent’s issue no. 2 captures all the three issues formulated by the appellant. That being the case, I shall determine this appeal on the bases of the respondent’s issue no. 2.

Arguing the appeal, learned counsel for the appellant submitted that from the statement of the appellant to the police, he promptly made locus criminis a fact in issue which makes it incumbent of the police to prove and having failed to investigate the plea of alibi raised, the appellant ought not be subjected to the vigour of trial. Counsel referred to IRIRI V. STATE (2018) LPELR – 45043 (CA) and DOGO V. STATE (2001) FWLR (Prt.39) 1388 to the effect that failure to investigate the appellant’s plea of alibi is detrimental to the prosecution case.

It was also submitted that from the evidence adduced by the prosecution, there are contradictions on the total value of the amount stolen representing the unsupplied products and that the said contradictions are material and substantial to the extent that no amendment can cured it. Thus, the amount on the charge is at variance with evidence. He referred to EZE V. ENE (2017) LPELR – 41916 (SC) to contend that a party’s case is in his pleadings and his case is proved by his pleadings, and so evidence which is contrary to his pleadings go to no issue.

Counsel further submitted that the refusal of the prosecution to produce the evidence of delivery/dispatch registers which could have clearly establish the fact of whether all the deliveries were made and whether it corresponds with the order placed by complainant amounts to withholding a very vital document that will help in knowing the truth. Furthermore, the only witnesses who received the products supplied to the complainant were not brought before the trial to Court and these according to counsel are vital witnesses who should have been called and the failure to call them also amounts to withholding evidence under Section 167 (d) of the Evidence Act.

On the part of the respondent, it was submitted that there must be clear expression or implied authorization of such staff or agent by the company, through its members in a general meeting, Board of Directors, or Managing Director before the company becomes criminally liable for such acts. And in the absence of authorization and or ratification, appellant cannot hide under the provision of Sections 65, 66 and 70 of the Companies and Allied Matter Act to evade criminal prosecution. He referred to ADEYEMI V. LAN & BAKER LTD (2000) 7 NWLR (prt. 663) 51 and C.B. LTD V. INTERCITY BANK PLC (2009) 15 NWLR (prt. 1165) 462.

It was further submitted by the respondent that what is required to proceed against an accused person is not the availability of sufficient evidence in the proof of the charge against the accused person but whether there is any evidence connecting the accused to the offences charged, concluded learned counsel.

In the famous case of UBANATU V. C.O.P. (2000)2 NWLR (prt. 643) 115 at 141, the Supreme Court has held that a submission of no case to answer may be properly made and upheld-
(a) When there has been no evidence to prove an essential element in the alleged offence, or
(b) Even when evidence has been adduced on the essential elements, the evidence has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable Tribunal could safely convict on it.
The apex Court also stressed the distinction between the two conditions above, that if an essential element is missing, the question of discredited evidence through cross-examination will certainly not arise.

It is also imperative to note that where a judge overrules a no case submission, he must be satisfied that a prima facie case is made out against the accused.

In the case at hand, learned trial inter alia held that “the two witnesses have led evidence before this Court evidence of inflated value transactions. This witness has tried to bring each of the accused persons within the compass of these allegations. The issue of the result of the foregoing is not for semantics as to the meaning of stealing or fraud. Where what was credited is less than the value of the cheque for example, there is a loss to one party and a gain to another. The very act of so doing amounts to stealing.”

It was also held in plethora of judicial decisions including the case of ABOGEDE V. STATE (1996)5 NWLR (prt.448) 270 that the evidence establishing a prima facie case is not to be such as would justify conviction. It only means that the evidence has covered the essential elements of the alleged offence and if it remains uncontradicted and is not thoroughly discredited in cross-examination, a reasonable Tribunal may justifiably convict on it, and therefore, some explanation is required from the accused person.

Learned senior Counsel for the appellant made heavy weather as regards absence of the appellant at locus criminis, non calling of vital witnesses as well as some contradictions on the total value of the amount of money allegedly stolen vis-a-vis, the products not supplied. These are clearly matters for considerations at the end of the trial. I therefore cannot but subscribe to the submission of the respondent that the jurisdiction of the trial Court at the stage of no case submission is limited to ascertaining whether there are snippets of evidence no matter how slight linking the accused with the commission of the offence charged.

In the light of the above, the findings of the learned trial judge can hardly be faulted when he concluded on page 896 of the record thus:-
“The question is if inspite of any of the PW2, there was no reconciliation of his account at the level of prima facie case, what impression will a reasonable man go away with? It is simply that he has been defrauded. The issue is not what exact amount but rather it is did anything criminal take place?”

In the result, the learned trial judge was therefore right in overruling the no case submission. The appeal is hereby dismissed.

BALKISU BELLO ALIYU, J.C.A.: I read before today the draft of the judgment just delivered by my learned brother, M. L. Shuaibu, JCA. I agree with him that this appeal lacks merit and deserves to be dismissed. I too dismiss it and affirm the ruling of the trial High Court of Akwa Ibom State sitting at Uyo delivered on the 16th March, 2018 in respect of Charge No. HU/1C/2011.

ADEMOLA SAMUEL BOLA, J.C.A.: I read in advance the judgment of my learned brother, MUHAMMED LAWAL SHUAIBU, JCA. I do agree with his reasons and conclusions and I adopt them as mine.

There is no basis overruling the decision of the lower Court in view of the prima facie case disclosed in the evidence adduced before the lower Court by the prosecution witnesses.

I abide by the conclusion that this appeal lacks merit. The appeal is dismissed. The ruling of the lower Court is affirmed. 

Appearances:

Joe Agi, SAN, with him, Dr. Paul Ebiala For Appellant(s)

Gabriel Otor For Respondent(s)