FEDERAL REPUBLIC OF NIGERIA v. ADAMU A. NUHU & ANOR
(2015)LCN/7851(CA)
RATIO
COURT: INTERFERENCE; WHETHER THE COURT OF APPEAL WILL INTERFERE WITH THE FINDINGS OF THE TRAIL COURT EXCEPT THE FINDINGS ARE PERVERSE
It is trite law that the Court of appeal will not interfere with the findings of a trial Court except the findings are perverse or not supported by evidence led or there is established a miscarriage of justice or violation of some principles of law or procedure. See; IGWANYI VS FRN (2012) 8 NWLR (PT.1302) AT 384; OKAFOR VS IDIGO (1984) 1 SCNLR 481. per. ABDU ABOKI, J.C.A.
COURT:FINDING OF FACT; WHEN IS A FINDING OF FACT PERVERSE
As rightly submitted by the learned Appellants counsel a finding of fact is perverse when it is not borne out of the available evidence, speculative or not a correct evaluation of available evidence before the Court. See; MOGHALU VS WOBO (2004) 17 NWLR (PT.903) PG. 465 AT 483. per. ABDU ABOKI, J.C.A.
COURT: NO CASE SUBMISSION; THE DUTY OF THE TRIAL COURT WHEN NO CASE SUBMISSION IS MADE
It is pertinent to note that when no case submission is made as in the instant case, the trial Court is not called upon at that stage to express any opinion on the evidence before it. The Court is only called upon to take note and to rule accordingly that there is before it no legally admissible evidence linking the accused person with the commission of the offence charged or that there is evidence linking the accused with the offence charged. See; AITUMA VS THE STATE (2007) 5 NWLR (PT 1028) AT 466. per. ABDU ABOKI, J.C.A.
COURT: A RULING OF NO CASE SUBMISSION; HOW SHOULD THE COURT DETERMINE A RULING OF NO CASE SUBMISSION
A ruling of no case submission should be determined within the narrow compass of the legally admissible evidence produced by the prosecution, and such should be based on its face value. See; AJIBOYE vs STATE (1995) 8 NWLR (PT. 414) AT 408. per. ABDU ABOKI, J.C.A.
COURT: A LENGTHY RULING; WHETHER A LENGTHY RULING WILL NOT BY ITS LENGTH ALONE VITIATE PROCEEDINGS
It is trite law that a lengthy ruling will not by it length alone vitiate proceedings. See; ATONO VS A.G BENDEL STATE (1988) 2 NWLR (PT.75) 291 AT 218. per. ABDU ABOKI, J.C.A.
CRIMINAL LAW: THE OFFENCE OF CONSPIRACY; WHEN IS THE OFFENCE OF CONSPIRACY COMPLETE
Conspiracy as an offence is the agreement by two or more persons to do or cause to be done an illegal act or a legal act by illegal means and that the actual agreement alone constitutes the offence of criminal conspiracy and it is unnecessary to prove that the act has in fact been committed – Omotola Vs State (2009) 7 NWLR (Pt 1139) 148 and Yakubu Vs Federal Republic of Nigeria (2009) 14 NWLR (Pt.1160) 151. The offence of conspiracy is complete once a concluded agreement exists between two or more persons that share a common criminal purpose. It is immaterial, that the persons had not met each other, and concluded agreements can be inferred by what each person does or does not do in furtherance of the offence- Shurumo Vs State (2010) 19 NWLR (Pt.1226) 73. Conspiracy to commit an offence is a separate and distinct offence and it is independent of the actual commission of the offence to which the conspiracy is related. It is based on common intent and purpose and once there is such evidence to commit the substantive offence, it does not matter what any of the conspirators did, Sule Vs State (2009) 17 NWLR (Pt 1169) 33. Per. UWANI MUSA ABBA AJI, J.C.A.
CRIMINAL LAW: THE OFFENCE OF THEFT; THE ESSENTIAL INGREDIENT OF THE OFFENCE OF THEFT ACCORDING TO THE PENAL CODE
With regards to the offence of theft under the provisions of Section 287 of the penal Code Law of Kaduna State, the essential elements are (i) that the property stolen was a moveable property and was in the possession of a person; (ii) that the accused person moved the property while in the possession of that person without the consent of the person; and (iii) that the accused person did so in order to take the property out of the possession of that person with intent to cause wrongful gain to himself or wrongful loss to that person. Per. UWANI MUSA ABBA AJI, J.C.A.
CRIMINAL LAW: THE OFFENCE OF CRIMINAL BREACH OF TRUST; THE ESSENTIAL INGREDIENT OF THE OFFENCE OF CRIMINAL BREACH OF TRUST ACCORDING TO THE PENAL CODE
On the offence of criminal breach of trust under Section 314 of the Penal Code Law, the essential ingredients are (i) that the accused was the clerk or servant of the person reposing trust in him; (ii) that he was in such capacity entrusted with the property in question or with domination over it; and (iii) that the accused person committed criminal breach of trust in respect of the property. Per. UWANI MUSA ABBA AJI, J.C.A.
In The Court of Appeal of Nigeria
On Thursday, the 30th day of April, 2015
ABDU ABOKI, J.C.A. (Delivering the Leading Judgment): This is an appeal against the decision of the Kaduna State High Court of Justice delivered on 23rd April, 2013 by B.F. Zubairu J.
The facts of the case leading to this appeal are as follows:
The 1st Respondent was the bank manager of the community bank Saminaka in Lere local government area of Kaduna State while the 2nd Respondent was the accountant in the said bank.
It was alleged by the complainant that certain amount of money totaling the sum of N22,717,000.00 were missing in the community bank Saminaka. This led to the Respondents being arrested by the EFCC Abuja. In consequence of the investigation carried out by the said EFCC, the Respondents were arraigned before the trial Court.
The Respondents stood trial on a nineteen counts charge dealing with conspiracy, theft and criminal breach of trust. In his effort to prove the said allegations against the Respondents, the prosecuting counsel called five witnesses and tendered some documents. At the close of the prosecution’s case, the learned counsel appearing for the Respondents made a no case submission. The Appellant’s counsel replied on point of law.
In a considered ruling the trial Court upheld the no case submission and discharge the two accused persons for the failure of the prosecution to establish a prima facie case against any of them.
Peeved by this decision of the trial Court, the Appellant appealed to this Court pursuant to its Notice of Appeal dated 22nd January, 2014, containing four (4) grounds of appeal.
In accordance with the Rules of this Court the parties filed and exchanged their briefs of argument.
In the Appellant’s brief of argument prepared by Steve Adehi Esq. three issues were distilled for the determination of this appeal from the four grounds of appeal raised in its notice of appeal. The issue reads as follows:-
1. “Whether the findings of fact by the learned trial judge were correct and legally sufficient to discharge the accused persons at the stage of no care submission.
2. Whether the ruling of the lower Court can stand in view of its length which occasioned a miscarriage of justice.
3. Whether from the totality of the evidence adduced by the Appellant at the Court below, it was not necessary to call upon the Respondents to offer some explanation by entering their defence.”
The Respondent in their brief prepared by Chief Chris A. Ekhasemomhe Esq distilled a lone issue from the Appellant’s grounds of appeal. The issue is adumbrated as follows;
Whether, in the instant case, the prosecution had made out a case in which the essential elements of each count in the charge have been proved sufficiently against the Respondents by way of credible evidence to warrant their being called upon to enter a defence.?
The lone issue distilled by the Respondents has captured the essence of the dispute between the parties and same shall be adopted in the determination of this appeal.
Learned Appellant’s counsel addressed specific findings of facts by the trial Court which led it to conclude that the Respondents had no case to answer. He referred the Court to the trial Court’s findings at pages 207 to 208, page 209 and page 211 of record. He contended that the findings were not correct and were not legally sufficient to discharge the Respondents at the stage of no case submission. He also referred the Court to pages 56-117 of the record.
He submitted on the finding of the trial Court on conspiracy at pages 207-208 of the record that the offence of conspiracy is committed when there is an agreement by two or more persons to do or cause to do an illegal act or legal act by illegal means and the offence is seldom proved by direct evidence but by inference from the facts proved. He cited in support the cases of;
OBIAKOR VS STATE (2002) NSCOR PG 27 AT 38;
ERIM VS STATE (1994) 5 NWLR (PT.346) PG 522 AT 534; OYARIKE VS STATE (2006) ALL FWLR (PT.3050) PG 703 AT 718.
He maintained that to proof the offence of conspiracy it is not necessary that there should be direct communication between each of the conspirators and every other. All that need to be established is that the criminal design alleged is common to all of them. Proof of how they connected with themselves is not necessary. He referred the Court to the cases of; ERIM VS STATE SUPRA; NJOVENS & ORS VS THE STATE (1973) NSCC 257 & 280.
He contended that there was sufficient evidence by PW1 & PW2 showing that the accused persons conspired to commit the offence as no approval was given for the use of the said sum.
Learned counsel submitted on the finding of the trial Court on the Respondents confessional statements at page 209 of the printed record that the trial Court was wrong because the Respondents did not enter their defence so they did not explain anything to the Court. He maintained that in a ruling of no case, the Court looks at the case of the prosecution to see whether it has made out a prima facie case. He argued therefore that there can be no question regarding the holding of the Court at page 209 of the record. The Court was referred to the cases of;
UBANATU VS COP SUPRA AT 129;
AJIDAGBA VS IGP (1958) SCNLR 60;
DURU VS STATE (1986) 3 NWLR (PT.113) AT 34;
IKOMI VS STATE (19S6) 3 NWLR (PT.28) AT 340;
ATANO & ORS VS A.G BENDEL STATE (1988) 1 NSCC 643 AT 653.
Learned counsel said he disagrees with the trial Court on the issue of an incident of robbery in the bank and the accused persons never offered any explanation to the Court that there was an incident of robbery. He maintained that it would appear that the Court is making out a defence for the accused persons where none existed. He insisted that the finding was unsupported by evidence.
On the trial Court’s finding that the prosecution has no evidence to establish a prima facie case of criminal conspiracy at page 211 of the record, the learned counsel submitted that there was evidence that the Respondents acted together in making the fraudulent withdrawals and transfers. He urged the Court to interfere with all the findings of facts above because they were perverse and not based on credibility of witnesses. He referred the Court to the cases of;
IHEANACHO & CO VS CHIGERE & ORS (2004) 17 NWLR (PT. 901) PG. 130 AT 152;
ATUNGWU VS OCHUKWU (2004) 17 NWLR (PT.901) PG.18 AT 42;
ADEBAYO VS ADUSI (2004) 4 NWLR (PT.862) PG 44 AT 77;
LAGGA VS SARHUNA (2008) 16 NWLR PT.1114 PG 427 AT 462.
Learned counsel argued that the ruling of the trial Court was too lengthy and too detailed to the extent that the trial judge reviewed the evidence on record more than he should, which led to a miscarriage of justice. The Court was referred to pages 197 to 211 of the record where the trial judge went into an in-depth analyses of exhibits that should have left to the Respondents themselves to explain.
He maintained that the trial judge engage in speculation as to how it may be possible for the Respondents to divert funds without breaching the law of trust. The Respondents he argued were credited with a defence which they neither explain nor raised at all. He referred the Court to page 207 of the record.
He contended that the act of over-evaluation of evidence at the stage of no case is against the principles of law. He cited in support the case of; ODOFIN BELLO VS STATE (1966) 1 ALL NLR 223.
Learned counsel insisted that from the totality of evidence adduced at the lower Court vis a vis the position of the law, the Respondents had some explanation to make and the trial Court was wrong to hold that the prosecution had not established a prima facie case against the accused persons. He referred the Court to the cases of;
UBANATU VS STATE (2000) 2 NWLR (PT.643) PG 115 AT 141; ADIDGBA VS IGP (SUPRA) AT 60; DURU VS STATE (SUPRA) AT 24; IKOMI VS STATE (SUPRA) AT 340; ATANO & ORS VS A.G BENDEL STATE (SUPRA) AT 653; AJIBOYE VS STATE (1995) 8 NWLR (PT 414) AT 418; ETANEM VS KING 13 WACA 108 AT 109.
He submitted that in the light of the legal position stated above, it cannot be said that no prima facie case was made out against the Respondents. He urged the Court to so hold and resolved the issues in favour of the Appellants.
The learned Respondents counsel on the other hand contended that the main complaint of the Appellant is against the success of the no case submission at the lower Court in this matter. He submitted that a Court can uphold and rule on a no case submission if one of the following conditions is satisfied;
1. When there has been no evidence to prove an essential element in the alleged offence either directly, circumstantially or by inference.
2. 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 Court or tribunal can safely convict on it.
He cited in support the cases of; JUDE UGWU VS THE STATE (2013) ALL FWLR (PT.669) PG 1177 AT 1188; THE STATE VS NWACHINEKE & ANOTHER (2008) ALL FWLR (PT.398) PG 204 AT 230; EMMANUEL IBEZIAKO VS COP (1963) ALL NLR 60 AT 67-68.
Learned counsel argued that in the instant case three offences were alleged to have been committed by the Respondents. He referred the Court to the elements that must be prove in a charge of conspiracy under Section 97 (1) of the penal code and the cases of; STATE VS IBRAHIM AND AKIN (1982) INCR 229 AT 283; WAMBAI & ANOTHER VS KANO N.A (1965) I NMLR 15 AT 18.
Learned counsel examined and review the evidence adduced by all the prosecution witnesses and submitted that their evidence showed two things, that money was missing and that there other workers of the bank which include PW2, PW3 and some NYSC members were being charged.
He maintained that for the offence of conspiracy to be established, there must exist a common design or agreement by two or more person to do or omit to do an act criminally. Therefore it is rarely capable of proof by direct evidence, it is invariably an offence that is inferred or circumstantially deduced from the acts of the parties. He cited in support the cases of;
PATRICK NJOVENS & ORS VS THE STATE (SUPRA) AT 404; GODWIN DABOH VS THE STATE (SUPRA) AT 162-163.
Learned counsel contended that in instant case there is no direct evidence establishing conspiracy against the Respondents that was adduced by the prosecution witnesses and inference of conspiracy cannot also be drawn from it against the Respondents. He referred the Court to the evidence of PW1 and PW4 at pages 179 and 184 of the record, where they all stated that they are holding the accused persons liable because some money were missing in the bank.
He submitted that the evidence of PW1 & PW4 have not shown any element of design or agreement to allow the alleged money to get missing and it is clear evidence that the Respondents were not the only staff of the bank.
Learned counsel insisted that in the instant case there is no evidence showing that the Respondents did some things together for a common purpose in respect of the missing money. He referred the Court to the trial Court’s finding at page 207.
Learned counsel also referred the Court to the ingredients of the offence of theft under Section 287 of the penal code, the head of charge at pages 57 to 62 of the record and submitted that no evidence was adduced in this matter establishing theft of money in each of the heads of the charge. He also referred the Court to the definition of theft in Section 286 (1) of the penal code and the case of EMMANUEL BODE & ORS VS COP (1970) NNLR PG. 35 AT 37.
He maintained that the basic principle in criminal prosecution is that the prosecution must prove the ingredients of the offence charged beyond reasonable doubt. But in the instant case there is no evidence tracing and linking the missing money to the acts of the Respondents, more so, there was no evidence establishing the ascertained amount of money alleged missing. He referred the Court to the evidence of PW2 at pages 177 to 179 of the printed record and urged the Court to hold and confirm the findings of the trial Court at page 207 to 210 of the record.
Learned counsel insisted that none of the ingredients of the offence of theft charged has been proved by the prosecution. The entire evidence adduced by the prosecution witnesses in this case cast a mere suspicion of the Respondents because they are manager and accountant of the bank and suspicion however well placed does not amount to a prima facie evidence. He referred the Court to the case of; OHWOVORIOLE SAN VS FRN & OTHERS (2003) VOL. 13 NSCQR 1 RATIO 9.
As to the confessional statements allegedly made by the Respondent, learned counsel submitted that going through their contents they are not qualified to be regarded as confessional statements. He referred the Court to the trial Court’s finding at page 209 of the record.
He maintained that before a statement made by an accused person is regarded as confessional, it must admit all the essential elements of the offences charged, unequivocal, direct and shows positive involvement of the accused in the alleged crime. He cited in support the cases of; MAJOR AMACHREE VS NIGERIAN ARMY (2003) 3 NWLR (PT.801) PG 256;
ODU VS FRN (2002) 5 NWLR (PT.761) PG 615.
He contended that the said confessional statements have not passed the test of a confessional statement before attaching evidential weight to it and the contents of the statements are not consistent with other facts that have been ascertained in the instant case. He referred the Court to the evidence of PW2 at pages 177 to 178 and the cases of;
TAOFEEK ADELEKE & ANOTHER VS THE STATE (2012) ALL FWLR (PT.606) PG 572 AT 583;
ADEKUNLE OLUWAFEMI ALO VS THE STATE (2011) ALL FWLR (PT.600) PG 1357 AT 1374.
Learned counsel submitted that the following are the essential elements of criminal breach of trust under Section 314 of the penal code;
a. That the accused was the clerk or servant of the person reposing trust in him.
b. That he was in such capacity entrusted with the property in question or with domination over it.
c. That he commit criminal breach of trust in respect of it.
He referred the Court to the cases of;
AIYEJENA VS THE STATE (1969) NNLR 73 AT 74;
SAMUEL AMADU SABO VS COP (1973) NNLR 207 AT 208.
He maintained that in view of the evidence adduced by the prosecution witnesses at the trial Court, essential elements (b) and (c) of the above ingredients have not been proved and established by the prosecution. The evidence only showed money was missing which is not proof of misappropriation or personal use of the property.
He insisted that there is no evidence to show that the Respondents misappropriated the missing money, let alone with dishonest intention. The entries in the contents of Exhibits C, CI and CII identify by PW5 were never made subject of oral evidence in Court and the said PW5 did not demonstrate how the said exhibits incriminate the Respondents.
He submitted that what is demonstrated in Court at the trial failed to support the prosecution’s case as it did not disclosed any element of criminal breach of trust. He referred the Court to the case of;
MUHAMMADU DURIMIN’IYA VS COP (1961) NRNLR 70 AT 73-74.
He urged the Court to uphold and endorse the finding of the trial Court at pages 210 to 211 of the printed record.
He submitted that from the analysis of the evidence adduced by the prosecution’s witnesses in purported proof of the essential ingredients of the offences with which the Respondents were charged and bearing in mind the definition of prima facie, it cannot be said that a prima facie case has been made out on the prosecution evidence at the close of its case, in the instant case to establish all the ingredients of the offences charged.
Learned counsel maintained that in the circumstance there is no ground for proceeding with the case at that stage. He cited in support the case of; ONAGORUWA VS THE STATE (1993) 7 NWLR (PT.303) PG 49 AT 82.
He urged the Court to uphold the ruling of the trial Court and dismiss this appeal as lacking in merit.
It is trite law that the Court of appeal will not interfere with the findings of a trial Court except the findings are perverse or not supported by evidence led or there is established a miscarriage of justice or violation of some principles of law or procedure. See;
IGWANYI VS FRN (2012) 8 NWLR (PT.1302) AT 384; OKAFOR VS IDIGO (1984) 1 SCNLR 481.
The Appellant contended that the findings of the trial Court at pages 207, 208, 209 and 211 of the printed record are perverse; he urged the Court to interfere.
As rightly submitted by the learned Appellants counsel a finding of fact is perverse when it is not borne out of the available evidence, speculative or not a correct evaluation of available evidence before the Court. See; MOGHALU VS WOBO (2004) 17 NWLR (PT.903) PG. 465 AT 483.
It is pertinent to note that when no case submission is made as in the instant case, the trial Court is not called upon at that stage to express any opinion on the evidence before it. The Court is only called upon to take note and to rule accordingly that there is before it no legally admissible evidence linking the accused person with the commission of the offence charged or that there is evidence linking the accused with the offence charged. See; AITUMA VS THE STATE (2007) 5 NWLR (PT 1028) AT 466.
I have carefully examined the trial Court’s Ruling and the findings which the Appellant contended are perverse vis a vis the evidence adduced by the prosecution. The findings are deductions from the facts before it which are consistent with the evidence adduced by the prosecution; the findings are borne out of the available evidence before it and are correct evaluation of available evidence adduced by the prosecution.
A ruling of no case submission should be determined within the narrow compass of the legally admissible evidence produced by the prosecution, and such should be based on its face value. See; AJIBOYE vs STATE (1995) 8 NWLR (PT. 414) AT 408.
It is trite law that a lengthy ruling will not by it length alone vitiate proceedings. See; ATONO VS A.G BENDEL STATE (1988) 2 NWLR (PT.75) 291 AT 218.
In the instant case the Appellant fail to show how the lengthy and too detailed ruling led to a miscarriage of justice on the Appellant.
A no case submission may be upheld where;
1. There is no evidence to prove an essential element of the alleged offences;
2. The evidence has been so discredited as a result of cross examination; and
3. The evidence is manifestly unreliable that no reasonable Court or tribunal can safely convict on it.
In ODIDO VS STATE (1995) 1 NWLR (PT. 369) AT 88 the Supreme Court Per Ejiwunmi JCA has this to say;
“The prosecution as argued by learned counsel for the Appellant must prove the ingredients of the offence with certainty before the Appellant could be called upon to make their defence…..”
In the instant case I have carefully examined the evidence adduced by the prosecution, the prosecution failed to prove or establish the elements of any of the offences with which the Respondents were charged and more so the evidence adduced were unreliable.
A prima facie case means that there is ground for proceeding. In other words that something has been produced to make it worthwhile to continue with the proceedings.
In the instant case the Appellant failed to adduce sufficient evidence to warrant the Respondents to enter their defense at the lower Court.
In whole the lone issue is resolved in favour of the Respondents.
There is no merit in this appeal and it is hereby dismissed. The ruling of the trial Court discharging the accused/Respondents is hereby affirmed.
UWANI MUSA ABBA AJI, J.C.A.: I read before now the lead judgement of my learned brother, Abdu Aboki, JCA, just delivered.
I adopt the reasons in the lead judgement and also conclude that there is no merit in the appeal and it is hereby dismissed.
The ruling of the Lower Court upholding the no case submission and discharging the Respondents, delivered on the 23rd April, 2013 is hereby affirmed. Respondents are hereby discharged.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.(DISSENTING): I have had the privilege of reading the lead judgment delivered by my learned brother, Abdu Aboki, JCA. His Lordship has considered and resolved the issues in contention in this appeal. I am afraid that I am unable to agree with the reasoning and the conclusions reached therein.
The Appellant arraigned the Respondents before the lower Court on a charge consisting of nineteen counts- one count of conspiracy contrary to Section 97 of the Penal Code Law of Kaduna State, seventeen counts of theft contrary to Section 287 of the Penal Code Law of Kaduna State and one count of criminal breach of trust contrary to the provisions of Section 314 of the Penal Code Law of Kaduna State. The Respondents were alleged to have conspired to steal sums of money totaling the sum of N22,717,000.00, the property of Saminaka Community Bank Ltd and thus breach the trust imposed upon on them by their legal contract of employment with the Bank.
The Respondents were the manager and the accountant of Saminaka Community Bank Ltd at the times material to the charge.
The Respondents pleaded Not Guilty to all the counts and the matter proceeded to trial and in the course of which the Appellant called five witnesses and tendered exhibits in proof of its case against the Respondents. At the conclusion of the case of the Appellant, the Respondents made a no case submission and the lower Court upheld the no case submission and discharged the Respondents for failure of the Appellant to establish a prima facie case against either of them. The Appellant was dissatisfied with the decision and it caused its Counsel to file a notice of appeal dated the 22nd of January, 2014 and containing four grounds of appeal against it. Counsel to the parties filed their respective briefs of arguments in this appeal and they adopted the arguments therein as their oral submissions at the hearing of the appeal.
The simple question that arises in this appeal is whether the lower Court was right when it found and held that the Appellant did not lead sufficient and credible evidence to make out a prima facie case against the Respondents.
The principles that a trial Court should take into consideration in deciding whether or not to uphold a no case submission have been stated and restated many times over the years. It is settled law that in a criminal trial, at the close of the case for the prosecution, a submission of no prima facie case to answer made on behalf of a defendant postulates one of two things or both of them at once. Firstly, that there has been throughout the trial no legally admissible evidence at all against the defendant, on behalf of whom the submission of no prima facie case has been made, linking him in any way with the commission of the offence with which he has been charged, which would necessitate his being called upon for his defence. Secondly, that whatever evidence there was which might have linked the accused person with the offence has been so discredited that no reasonable Court can be called upon to act on it as establishing the criminal guilt in the defendant concerned. Apart from these two situations, a tribunal or Court should not in general be called on to reach a decision as to conviction or acquittal until the whole of the evidence which either side wishes to tender has been placed before it – Suberu Vs State (2010) 1 NWLR (Pt 1176) 494. 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 it by law has failed to establish a prima facie case or establish the ingredients of the offence against the defendant, to make it imperative for the Court to call upon the defendant to defend himself or answer to the charge or open his defence or enter his defence. Where a no case submission is made, what is to be considered by the Court is not whether the evidence produced by the prosecution against the defendant is sufficient to justify conviction but whether the prosecution has made out a prima facie case requiring, at least, some explanation from the defendant as regard his conduct or otherwise.
A prima facie case is made out where the evidence adduced by the prosecution is such that, if uncontradicted, would be sufficient to prove the case against the defendant.
At the stage of a no case submission at the close of the prosecution’s case, what is required of a trial Court is not to evaluate or give weight to the evidence led by the prosecution at that stage or to write a lengthy judgment.
A ruling on a no case submission should be as brief as possible and not in any way go into evaluation of the evidence led- Tongo Vs Commissioner of Police (2007) 12 NWLR (Pt 1049) 525 and Ekwunugo Vs Federal Republic of Nigeria (2008) 15 NWLR (Pt 1111) 630.
Reading through the submissions of the Counsel to the Respondents before the lower Court as contained on the records of appeal, the essence of the case of the Respondent on their no case submission was that there had been throughout the trial no legally admissible evidence at all linking them in any way with the commission of the offences with which they were charged, which would necessitate their being called upon to defend. It was not their case that whatever evidence led by the Appellant which might have linked them with the offences with which they arc charged has been so discredited that no reasonable Court can be called upon to act on it as establishing the criminal guilt in them. This was the same argument canvassed by Counsel to the Respondents in his brief of arguments in this Court. It was on this basis that the lower Court upheld the no case submission.
As stated above, the Respondents were charged with conspiracy to commit theft, theft and criminal breach of trust. Conspiracy as an offence is the agreement by two or more persons to do or cause to be done an illegal act or a legal act by illegal means and that the actual agreement alone constitutes the offence of criminal conspiracy and it is unnecessary to prove that the act has in fact been committed – Omotola Vs State (2009) 7 NWLR (Pt 1139) 148 and Yakubu Vs Federal Republic of Nigeria (2009) 14 NWLR (Pt.1160) 151. The offence of conspiracy is complete once a concluded agreement exists between two or more persons that share a common criminal purpose. It is immaterial, that the persons had not met each other, and concluded agreements can be inferred by what each person does or does not do in furtherance of the offence- Shurumo Vs State (2010) 19 NWLR (Pt.1226) 73. Conspiracy to commit an offence is a separate and distinct offence and it is independent of the actual commission of the offence to which the conspiracy is related. It is based on common intent and purpose and once there is such evidence to commit the substantive offence, it does not matter what any of the conspirators did, Sule Vs State (2009) 17 NWLR (Pt 1169) 33.
With regards to the offence of theft under the provisions of Section 287 of the penal Code Law of Kaduna State, the essential elements are (i) that the property stolen was a moveable property and was in the possession of a person; (ii) that the accused person moved the property while in the possession of that person without the consent of the person; and (iii) that the accused person did so in order to take the property out of the possession of that person with intent to cause wrongful gain to himself or wrongful loss to that person.
On the offence of criminal breach of trust under Section 314 of the Penal Code Law, the essential ingredients are (i) that the accused was the clerk or servant of the person reposing trust in him; (ii) that he was in such capacity entrusted with the property in question or with domination over it; and (iii) that the accused person committed criminal breach of trust in respect of the property.
Reading through the briefs of arguments of both Counsel to the parties in this appeal, it was not in contest that the evidence led by the Appellant at trial established that the Respondents were the manager and accountant of Saminaka Community Bank Ltd at the material times to the charge against them and were responsible for the day to day operations of the Bank and were two of the authorized signatories to the account of the Bank with First Bank of Nigeria Plc. It was not in contest that the evidence led by the Appellant established that large sums of money which the depositors of Saminaka Community Bank Ltd placed in the possession and custody of the Bank was missing from the account of the Bank with First Bank of Nigeria Plc and that the money was taken away from the possession of the Bank without its consent. The contest was whether the Appellant led evidence to link the missing money to the dishonest acts of the Respondents. In fact Counsel to the Respondents submitted in paragraph 4.18 of his brief of arguments thus:
“…The basic principle in a criminal prosecution is that the prosecution must prove the ingredients of the offence charged. In the instant case, there is clear evidence that money was missing but there is no evidence tracing or linking the missing money to the dishonest acts of the two respondents. There is no evidence establishing the ascertained amount or a part of the alleged missing money… ”
In Agbo Vs State (2013) 11 NWLR (Pt 1365) 377, the Supreme Court reiterated what a trial Court should concern itself with in considering a no case submission. Fabiyi, JSC at page 394 B-G stated thus:
“It is now basic that in considering a submission of no case to answer it is not necessary at that stage to determine whether the evidence is sufficient to justify a conviction. The Court only has to be satisfied that there is a prima facie case which requires at least some explanation from the accused person. As inferred by Abbot, FJ in Ajidagba v IGP…, prima facie case is not the same as proof which comes later when the Court may find whether the accused is guilty or not. Evidence discloses a prima facie case when it is such that if uncontradicted and if believed it will be sufficient to prove the case against the accused. On his own part, Nnamani, JSC (of blessed memory) in Duru v Nwosu …maintained that prima facie case means that ‘there is ground for proceeding’. In other words, that something has been produced to make it worthwhile to continue with the proceedings. On the face of it (prima facie) ‘suggests that the evidence produced so far indicates that there is something worth looking at’. … The purport of a no case submission is that the Court is not called upon at that stage to express any opinion on the evidence before it. The Court is only called upon to take note and rule accordingly that there is before the court no legally admissible evidence linking the accused person with the commission of the offence charged.
But if there is legally admissible evidence, however slight, the matter should proceed as there is something to look at.”
This is a re-affirmation of the statement of law that however slight the evidence linking an accused person with the commission of the offence charged might be, the case ought to proceed for the accused to explain his own side of the matter- Ibeziako Vs Commissioner of Police (1963) 1 SCNLR 99, Daboh Vs The State (1977) 5 SC 197 at 209, Adeyemi Vs The State (1991) 6 NWLR (Pt 195) 1, Igabele Vs State (2004) 15 NWLR (Pt 896) 314 and Aituma Vs State (2007) 5 NWLR (Pt.1028) 466.
Thus, the question, in the instant case, is whether there was any evidence, however slight, linking the Respondents with the commission of the offences with which they were charged.
Reading through the records of appeal, the fourth prosecution witness, an Investigator with the Economic and Financial Crimes Commission, testified that he was one of the persons detailed to investigate the petition written by the Saminaka Community Bank Ltd against the Respondents and that in the course of the investigation, the Respondents accepted responsibility for some of the missing money and started making refunds and that while the first Respondent made a refund of N900,000.00, the second Respondent made a refund of N1.7 Million and that the Respondents made statements in respect of the refunds.
The statements were tendered before the lower Court, collectively with other statements made by the Respondents, and were admitted without objection from the Counsel to the Respondents. The statements of the first Respondent were admitted collectively as Exhibit A while those of the second Respondent were admitted as Exhibit B.
The statement of the first Respondent on the acceptance of responsibility for part of the missing money and on payment of some refund read thus:
“… that during the investigation in the case reported against me and Accountant Shuaibu Ilu by Chairman Saminaka Community Bank, after the Audit report, it was agreed that the total of N8,120,000.00 will be refunded by me and Accountant Shuaibu Ilu. I will pay the sum of N4,060,000.00 out of which I refunded N700,000.00 to the Bank directly. And have today refunded N200,000.00 through EFCC making a total of N900,000.00 paid and N3,160,000.00 is outstanding.
I will settle the balance in a period of 2 months from today i.e. February 28th, 2010.”
The statement of the second Respondent on the acceptance of responsibility for part of the missing money and on payment of some refund read thus:
“‘.. that the investigation in a case reported against me and the manager that the sum of N8,120,000.00 should be refunded by me and manager after the Audit Report as reported by the Chairman Saminaka Community Bank. Each of us therefore agreed to pay the sum of N4,060,000.00 to the Bank. Out of which I have paid the sum of N1,700,000.00 to the Bank. So the balance of N2,360,000.00 I will pay it to the EFCC in the period of 3 months from today i.e. March 31, 2010 by God grace.”
The Respondents did not contest that they made these statements voluntarily without any threat violence or inducement and that law is that their contents will be deemed true and correct – Osung vs State (2012) 18 NWLR (Pt 1332) 256, Ajibade vs State (2013) 6 NWLR (Pt 1349) 25 at 44 E-H, Stephen Vs State (2013) 8 NWLR (pt.1355) 153 at 173 D-H.
The sum of N8,120,000.00 that the Respondents agreed to refund is no small amount of money and common sense tells me that no man in his right senses would ordinarily commit to making such a refund. The inferences to be drawn from the statements therefore is that the Respondents admitted that they jointly took for themselves the sum of N8,120,000.00 of the missing money of Saminaka Community Bank Ltd which was put in their care as Manager and Accountant of the Bank, without the consent of the Bank. The statements of the Respondents clearly constitute evidence linking them with the commission of the offences charged and require that the Respondents be called upon to make some explanation. The lower Court was thus in grave error when it upheld the no case submission of the Respondents and discharged them.
I find merit in this appeal and I hereby allow the appeal. I set aside the decision of the High Court of Kaduna State in Charge No KDH/Z/3/C/2010 delivered by Honorable Justice B. F. Zubairu on the 23rd of April, 2013. I hereby direct that the case file be remitted to the lower Court with a directive that the lower Court should call the Respondents to enter their defence in the matter. These are my orders in this appeal.
Appearances:
F. A. Jirbo, Esq.For Appellant(s)
Chief C. A. Ekhasemomhe, Esq.For Respondent(s)
Appearances:
F. A. Jirbo, Esq.For Appellant(s)
Chief C. A. Ekhasemomhe, Esq.For Respondent(s)
Appearances
F. A. Jirbo, Esq.For Appellant
AND
Chief C. A. Ekhasemomhe, Esq.For Respondent
