HON. AZUBOGU CHRIS EMEKA IFEANYI v. FEDERAL REPUBLIC OF NIGERIA (2014)

HON. AZUBOGU CHRIS EMEKA IFEANYI v. FEDERAL REPUBLIC OF NIGERIA

(2014)LCN/7048(CA)

In The Court of Appeal of Nigeria

On Friday, the 28th day of March, 2014

CA/A/380C/2013

RATIO

POSITION OF THE LAW WHEN A NO CASE SUBMISSION IS MADE ON BEHALF OF AN ACCUSED PERSON

It has been held in multiplicity of decided authorities and it is therefore trite, that when a No Case Submission is made on behalf of an accused person, it postulates that there has been throughout the trial no legally admissible evidence of whom the submission has been made, linking the accused in any way with the commission of the offence with which he is charged, which would necessitate his being called upon for his defence and 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 established criminal guilt of the accused person concerned.

In the case of Ajisogun vs. State (1998) 13 NWLR (Pt. 581) 205 at 262, it was held that:
“What the trial Court should consider at this stage is threefold-
1) Whether an essential ingredient of the offence has or has not been so proved;
2) Whether the evidence of the prosecution witnesses have been so discredited and rendered unreliable by cross-examination that it will be unsafe to convict such evidence.
3) Whether the evidence so far led is such that a reasonable Tribunal would convict on it in which case there is a case to answer.
See also the following cases: Aituma vs. State (2007) 5 NWLR (Pt. 1028) 466; Ibeziako vs. C.O.P. (1963) 1 ALL NLR 61.

A No Case Submission presupposes that there is no prima facie case to answer made on behalf of the accused person. It means that after the prosecution had closed its case, there is no evidence upon which, even if believed, the Court can legally convict the accused person. PER AMIRU SANUSI, OFR, J.C.A.

WORDS AND PHRASES: PRIMA FACIE

It will be appropriate at this stage to define the term prima facie.
In the case of Ubanatu vs. C.O.P. (2000) FWLR (Pt. 1) 138, the apex court, per Ogwuegbu JSC, held at pages 150 – 152 thus:
“…..The Courts and authors have defined it in various ways. It is defined in Osborne’s Concise Law Dictionary, 8th Edition by Rutherford and Bone, at page 259 as;
“A case in which there is evidence which will suffice to support the allegation made in it, and which will stand unless there is evidence to rebut the allegation.
When a case is being heard in Court, the party on whom the burden of proof rests must make out a prima facie case, otherwise the other party will be able to submit that there is no case to answer, and if he is successful, the case will be dismissed.”
It is also defined in Black’s Law Dictionary, 6th Ed., Thus:
“Such as will prevail until contradicted and overcome by other evidence. Pacific Telephone Co. v. Wallace, 158 Or. 210, 75 O.2d 942, 947. A case which has proceeded upon sufficient proof to that stage where it will support finding if evidence to contrary is dismissed.”
The expression ‘prima facie case” has also received numerous definitions by our Courts. In Ajibade v. I.G.P (1958) FSC 5 at 6, Abbot F.J. attempted to find a definition for the expression. He said:
“We have been at some pains to find a definition of the term ‘prima facie case’. The term so far as we can find has not been defined either in the English or, in the Nigerian Courts. In an Indian case, however, Sher Singh vs. Jitendranathsen (1931) 1 L.R. 50, Calc. 275, we find the following dicta:
“What is meant by a prima facie (case)? It only means that there is a ground for proceeding… But, prima facie case is not the same as proof which comes later when the Court has to find whether the accused is guilty or not guilty…” The 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” (Per Lord Williams, J.)”
In Duru vs. Nwosu (1989) 1 NWLR (Pt. 113) 24 at 43 Nnamani, JSC, said:
“It seems to me the simplest definitions is that which say that ‘there is ground for proceeding.’ In otherword, that something has been produced to make it worthwhile to continue with the proceedings. On the face of it, suggests that the evidence produced so far indicates that there is something worth looking at”
See also Ikomi vs. The State (1986) 3 NWLR (Pt. 28) 340 at 366 and Sections 286 and 287(1) of the Criminal Procedure Law, Cap. 49, Laws of the Bendel State, 1976 which provide for situations where the prosecution failed to establish a prima facie case (Section 286) and (Section 287(1), the converse. PER AMIRU SANUSI, OFR, J.C.A.

JUSTICES

AMIRU SANUSI OFR Justice of The Court of Appeal of Nigeria

JOSEPH TINE TUR Justice of The Court of Appeal of Nigeria

TINUADE AKOMOLAFE-WILSON Justice of The Court of Appeal of Nigeria

Between

HON. AZUBOGU CHRIS EMEKA IFEANYI Appellant(s)

AND

FEDERAL REPUBLIC OF NIGERIA Respondent(s)

AMIRU SANUSI, OFR, J.C.A. (Delivering the Leading Judgment): The appellant and another person who are Hon. Members of the House of Representatives of Nigeria were initially arraigned before the High Court of the Federal Capital Territory presided over by Umar J as second accused person, in charge No: FCT/CR/77/12 containing two counts.

The appellant and his colleague Hon. Iorwse Herman Hembe were jointly arraigned and charged though differently. The charge which the present appellant faced trial on at the FCT High Court (hereafter referred to as “the lower court”) as the second accused read as below:

COUNT TWO
That you, HON. AZUBOGU CHRIS EMEKA IFEANYI, sometime in October 2011 in Abuja within the Judicial Division of the High Court of the Federal Capital High Territorial dishonestly converted to your own use, the sum of $4,095 (Four Thousand and Ninety Five Dollars), being money given to you by the Securities and Exchange Commission as your travelling allowance to PUNCTACANA, in Dominion Republic, to attend a conference which you did not attend and thereby committed an offence contrary to Section 308 of the Penal Code Act, Laws of the Federation of Nigeria (Abuja) 1990 and punishable under Section 309 of the same code.

It is apt to repeat here that initially the appellant and the 1st accused were arraigned before Umar J of the same lower court, who commenced the trial and after taking the plea of both the appellant and the 1st accused. The prosecution (now respondent) called five witnesses to testify before Umar J and tendered some exhibits. However before the prosecution closed its case for undisclosed reason, the matter was transferred to Hon. Justice Kekemeke who started to hear the case de novo.

At the commencement of their joint trial before Kekemeke J on the same two counts, the appellant and the 1st accused pleaded not guilty to the charges. Trial then commenced in earnest and the prosecution/respondent called four witnesses to testify in proof of their case and also tendered some exhibits.

The facts of the case as could be gleaned from the record, is that the appellant as second accused and the 1st accused being Chairman and, Deputy Chairman of the House of Representatives Committee on Capital Market, were billed to attend a conference at Dominican Republic which was scheduled to hold from 17/10/2011 to 19/10/2011. The appellant was issued with ticket for the trip and his estacode on the night of 19/10/2011 after the conference would have concluded. This therefore according to him foisted on him the impossibility to, travelling with the organizers of the conference.

Then after the prosecution/respondent closed its case the learned defence counsel for the appellant and the 1st accused made a joint “Submission of No-Case to Answer” and the trial court later adjourned for Ruling in the “No Case Submission” on 26th June 2013, the learned trial judge delivered his Ruling on the ‘No case submission’ and overruled the same and held that prima facie case of criminal misappropriation was made against the appellant which would require him to explain or to enter his defence.

Aggrieved by the said Ruling, the Appellant appealed to this court vide a Notice of Appeal filed on the 4th of July, 2013, containing five grounds.
Parties thereupon filed and exchanged briefs of argument. From the totality of the grounds of appeal, a brief of argument was filed on behalf of the Appellant, wherein two issues were raised for determination by this Court, namely:
1. Did the Prosecution establish the essential elements of dishonest conversion to justify the Appellant being called upon to enter a defence?
2. Was the Respondent’s case not manifestly unreliable so as to negate a finding that the Respondent established a prima facie case?

For the Respondent, a sole issue was formulated from the grounds of appeal for determination of the appeal which read as below:
“Whether the trial court was right when it held that a prima facie case of criminal misappropriation has been made out against the Appellant requiring some form of explanation from him”

When the appeal came up for hearing on the 29th of January, 2014, Learned Senior Counsel for the Appellant, Dr. Onyechi Ikpeazu, SAN, adopted and relied on the Appellant’s brief of argument dated and filed on the 2nd of October, 2013, but deemed properly filed and served on the 24th of October, 2013, as well as the Appellant’s Reply Brief of Respondent’s brief filed on the 8th of November, 2013 and urged this Court to allow the appeal.

Learned Counsel for the Respondent, Chief Okoroma Esq. of the Economic and Financial Crimes Commission, EFCC, also adopted and relied on the Respondent’s Brief of Argument dated and filed on the 4th of November, 2013, in urging this Court to dismiss the appeal.
It is obvious from the issues formulated by Counsel for both parties, that the fulcrum of this appeal is whether a prima facie case has been made out against the Appellant. Consequently, I shall adopt the two issues raised for determination in the Appellant’s Brief of Argument.
Also, since the two issues formulated by the Appellant overlap each other, I shall consider them together.

In his arguments in respect of the first issue, it was submitted for the Appellant that after careful consideration of the evidence placed before the trial court by the Respondent, it would be discovered that the Respondent failed to establish the essential ingredients of the offence of criminal misappropriation for which the Appellant was charged and the learned trial Judge was wrong to have dismissed the No Case submission made on behalf of the Appellant. He cited and relied on the case of Ajisogun vs. State (1998) 13 NWLR (Pt.581) 205 at 262, and submitted that the prosecution had not proved the essential ingredients of the offence charged. He also cited the following cases: Ibeziakor vs. COP (1963) 1 ALL NLR 61 at 69; Ajidagba vs. IGP (1958) 3 FSC 9; Okoro vs. State (1988) 5 NWLR (Pt.94) 255; Oyebola vs. The State (1995) 8 NWLR (Pt.414) 412 at 415; Abogede vs. State (1996) 5 NWLR (Pt.448) 270 at 280.

It was submitted on behalf of the Appellant, that for the Prosecution to succeed in its proof of an offence under Section 308 of the Penal Code punishable under Section 309 of the same code, it must be shown that there was dishonesty, misappropriation and conversion. Reliance was placed on the case of Atuma v. State (2006) 10 NWLR (Pt.989) 452 at 472.
Learned Senior Counsel for the Appellant also cited Section 16 of the Penal Code which defines the word “dishonesty” as well as the case of Bakare & Ors. vs. The State (1968) ALL NLR 354 at 359 – 360.

It was also argued that the necessary criminal intention to commit the offence must not only be proved, but also the act itself must constitute a crime. See the case of Tirah v. C.O.P. (1973) NNLR 143, as well as the case of J.M. Dessai vs. State of Bombay A.I.R. (1960) cited in TIRAH’S case supra.
It was further submitted that the evidence of the Prosecution witnesses, particularly that of PW3 did not show that there was a prescribed time of refund neither was it evident that the money was misappropriated by the Appellant. It was again submitted that the conference had already ended as at the time the money was paid to the Appellant.

It was submitted further, that going by the testimony of PW4, tickets are valid for 12 months and can be used or re-routed within that period if unused. It therefore follows that the Prosecution has been unable to prove that there was dishonesty, misappropriation and “conversion” on the part of the Appellant.
It was submitted too, that by virtue of Section 36(5) of the Constitution of the Federal Republic of Nigeria 1999 as amended there is a presumption of innocence in favour of an accused person until the contrary is proved.

It was contended by the appellants learned counsel that where the Prosecution by its own witnesses did not prove the essential ingredients of an offence, the Court is entitled and obligated to discharge the accused. Reliance was placed on the following: Ekunigo vs. F.R.N. (2003) 15 NWLR (Pt.1111) 630; Onagoruwa vs. State (1993) 7 NWLR (Pt.303) 48; Udentu vs. COP (2000) 2 NWLR (Pt.643) 115; Suberu vs. State (2010) 8 NWLR (Pt.1197) 586.
It was submitted in conclusion that the learned Trial Judge ought to have considered all oral and documentary evidence before him before arriving at the decision that the Appellant had a case to answer.
The Court was thereupon urged to resolve this issue in favour of the Appellant. In arguing the second issue, it is submitted for the Appellant that the evidence of the Prosecution cannot support the charge. Learned Senior Counsel further submitted that where a public officer collects Estacode but failed to travel for that purpose, no crime is committed. It is his view that a crime is founded on a criminal wrong which violates the provisions of a specific provision of the Criminal or Penal Code.

It was further submitted that since it is on record, going by the evidence of PW4, that the tickets are valid for twelve months, and that the Appellant did no wrong by not returning the money since another trip can be arranged for him, this testimony, not being discredited by the Prosecution, amounts to an admission and on this the case of Daggash vs. Bulama (2004) 14 NWLR (Pt.892) 144 at 241 was cited and relied on.
He also submitted that evidence procured under cross examination is as valid and authentic as evidence procured from examination in chief. He cited a host of authorities including; Gaji vs. PAYE (2001) 8 NWLR (Pt.823) 583; Bamgboye vs. Olanrewaju (1991) 4 NWLR (Pt.184) 132; Tyonex vs. Pfizer (2011) ALL FWLR (Pt.564) 175. From the foregoing, this Court was then urged to hold that going by the evidence of the Prosecution, no prima facie case was made out requiring any form of explanation from the Appellant. He cited the case of Ajidagba vs. I.G.P. (1958) FSC 5 at 6.

He urged this Court to hold that by virtue of Exhibit H, no prima facie case was made out against the Appellant and to resolve this issue in favour of the Appellant.
Replying the Learned Counsel for the Respondent citing the cases of Ubanatu vs. State (2000) 2 NWLR (Pt.643) 115 and Onagoruwa vs. State (1993) 7 NWLR (Pt.303) 49, adumbrated the circumstances where a ‘No Case Submission’ can be upheld.
It was also submitted that a prima facie case means a ground of proceedings and not the same as proof. It is also submitted that at the stage of ‘No Case Submission’, a trial court is to determine whether or not the evidence of the prosecution is irrelevant and so also to determine the credibility or otherwise of the witnesses. He cited the case of Ajiboye vs. State (1995) 8 NWLR (Pt.414) 408.

It was argued that a prima facie case needs no analysis or evaluation of the entire case. It is his view that going by the evidence of all the prosecution witnesses a prima face case was made out against the Appellant. He referred this Court to pages 405, 410 and 411 of the Records.
It is submitted that the Appellant need not wait for the Respondent to demand for the return of the Estacode, before returning same as the trip for which it was given, was not embarked upon by the Appellant.

He again submitted that the return or retirement of unutilized public fund is a notorious fact under Section 124 of the Evidence Act, 2011 and reliance was placed on the case of S.P.D.C. vs. Dino (2007) ALL FWLR (Pt.362) 1942 at 1957. This Court was therefore urged to discountenance the submissions of the Learned SAN for the appellant that this is a clearly case of “witch-hunt” since such allegations cannot be substantiated.
On why PW5, who had earlier testified before Umar J, was not included in the trial, it was argued that a party is not bound to call any particular witness if he thinks that he can prove his case. On this, he cited the case of Okoronkwo vs. Chukwueke (1992) 1 NWLR (Pt.216) 193.

This Court is urged to dismiss the appeal and hold that the trial Court was right in holding that a prima facie case of criminal misappropriation has been established against the Appellant.
In his response in his Reply Brief, it was submitted for the Appellant that by virtue of Section 36(8) of the 1999 Constitution, as amended, it is only matters which constitute criminal offence as defined by law, that can ground a criminal trial and conviction.

He further submitted that it is only by weighing the criminal and not civil implication of the facts, that a case will rightly be examined and considered under Section 308 and 309 of the Penal Code. The case of Amadi vs. F.R.N (2010) 5 NWLR (Pt.1186) 87 at 111, was cited and relied upon.
It is also submitted that the elements of misappropriation under Sections 308 and 309 of the Penal Code taken into account the term ‘dishonesty’ and not failure.
It is also submitted that mere failure to travel or to return the money cannot be admissible evidence in proof of dishonest misappropriation and therefore no further explanation is required.

With regard to the evidence of PW4, it was submitted that his evidence was based on what obtained in the Commission where he worked and on this reliance was placed or the case of Aiguoreghian vs. State (2004) 3 NWLR (Pt.860) 367 at 396. This Court is again urged to allow the appeal.
The procedure for a ‘No Case Submission’ is prescribed under Section 191(1)-(5) of the Criminal Procedure Code which provides as follows:
“(1) After the reading of the examination of the accused, in accordance with the provisions of Section 190, the accused may be examined as provided in Section 235 and he shall then be asked:
(a) Whether he wishes to give evidence on his own behalf as provided in Section 236; and
(b) Whether he means to call witnesses other than witnesses to character.
(2) If the accused says that he does not intend to call any witness other than witnesses to character, the prosecutor, if any, may sum up his case against the accused and the Court shall then call upon the accused to enter upon the defence.
(3) Notwithstanding the provisions of subsection (2), the Court may, after hearing the evidence for the prosecution if it considers that the evidence against the accused or any of several accused if not sufficient to justify the continuation of the trial, record a finding of not guilty in respect of such accused without calling upon him or them to enter upon the defence and such accused shall thereupon be discharged and the Court shall then call upon the remaining accused, if any, to enter upon the defence.
(4) If the accused or any one of several accused says that he intends to call any witness other than a witness to character, the Court shall call upon the accused to enter upon the defence.
(5) Notwithstanding the provisions of subsection (4), the Court may, before calling upon the accused to enter upon the defence, call upon the prosecutor to sum up his case against one or more of the accused against whom it considers that the evidence is not sufficient to justify the continuation of the trial and, after hearing the summing up, if any, may in its discretion record a finding of not guilty in respect of any such accused or call upon any of them to enter his or their defence.

I will also refer to the English Practice Note issued by Parker, L.C.J., contained in (1962) 1 ALL E.R. 448 as to when a No Case to Answer can properly be made and upheld. The circumstances are:
“(a) When there has been no evidence in the alleged offence;
(b) When the evidence adduced by the prosecution has been so discredited as a result of cross examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it.”
See also Ibeziako vs. Commissioner of Police (1963) 1 All NLR 61 and Atano vs. Attorney-General, Bendel State (1988) 2 NWLR (Pt. 75) 201 there the apex court held thus:
“Having regard to the above definitions of the expression, ‘prima facie case’, can it be said that the learned trial Chief Magistrate rightly overruled the no case submission made by the learned appellant’s counsel? One should not go outside the evidence (oral or documentary) tendered by the prosecution in coming to the conclusion…..At the close of the prosecution’s case, a trial court should consider whether there is evidence which will suffice to support the allegation made in the charge and whether such evidence will stand, unless the accused produces no evidence to rebut it. If at the close of the case for the prosecution, there is no proof of an essential element in the said charge and a submission of no case is made, a trial court ought to uphold the submission.”
From the foregoing dictum of the apex court, it is incumbent upon a trial court to consider the exhibits, oral testimonies of the witnesses and the charge or charges brought against an accused person in determining whether to uphold or dismiss a no case submission. The trial court ought not to go outside the exhibits and oral evidence adduced by the prosecution to determine the issue of no case submission. In fact a court has an obligation to consider even, suo motu, the prosecution’s case whether a case has been made out against the accused and if no case was made, it should discharge the accused. See Okoro vs. The State (1988) 5 NWLR 225; Contra Maiduguri vs. R (1963) MNLR.

In the instant case, the Appellant was charged under Section 308, punishable under Section 309 of the Penal Code.
The above provisions states as follows:
Section 308:
Whoever dishonestly misappropriates or converts to his own use any movable property, commits criminal misappropriation.
Section 309:
Whoever commits criminal misappropriation shall be punished with imprisonment for a term which may extend to two years or with fine or with both.
In order to sustain a conviction based on the above mentioned sections of the Penal Code, the Prosecution must establish unequivocally, with oral and/or documentary evidence, the guilt/accused by proving the following ingredients mentioned in Section 308, namely:-
i. That there was misappropriation;
ii. That there was conversion;
iii. That the misappropriation and conversion was done dishonestly.

In defining the term ‘dishonesty’ recourse must be had to Section 16 of the Penal Code, which provides as follows:
“A person is said to do a thing ‘dishonestly’ who does that thing with the intention of causing a wrongful gain to himself or another or causing loss to any other person.”

In the instant case, the crux of the Prosecution case is that the estacode allowance paid to the Appellant was criminally misappropriated.
In the Federal Public Service Rules of Nigeria, Chapter 13, provision for estacode allowances are made for officers on duty visit outside the country.
Rules 130109 provides as follows:
“An officer on duty visit outside Nigeria shall be granted:
(a) Air passage for himself/herself only; but where the duration of the officer’s duty is not less than 9 months, his/her spouse may accompany him/her at public expense;
b) Reimbursement of actual expenditure or transport essential to the business of the visit; and
(c) Estacode allowance.”
The Public Service Rules of Nigeria is clear on the use and application of estacodes.

In the instant case, the case of the Respondent, as Prosecution at the trial court is that the Appellant criminally misappropriated the Estacode paid to him.
It has been held in plethora of decided authorities, that for the Prosecution to succeed, under Section 308 of the Penal Code, the three ingredients spelt out above must be proved to co-exist simultaneously. Where the prosecution fails to prove any/or one of the three ingredients, the court is left with no choice but to quash the charge against the accused.
In the case of Bakare & Ors vs. The State (1968) ALL NLR 354 at 359-360, the Supreme Court, in applying Sections 308, 309 and 16 of the Penal Code, held as follows;
“We have set out the case against the Appellant. We have also set out the material parts of the Judgment by which the learned trial Judge came to the conclusion to convict the Appellant under Section 309 of the Penal Code. The conviction of the Appellant under that section must and did imply that the Appellant had criminally misappropriated the 1,000 bricks which formed the subject matter of the charge………… To start with, it is necessary for the purposes of a conviction under Section 309 to show that the Appellant had the necessary intention within Section 16 of the Penal Code………We have come to the conclusion that the offence of which the Appellant was convicted was not proved. To sustain a conviction under Section 309 of the Penal Code, a dishonest misappropriation or conversion must be proved and this means that the relevant intention constituting dishonesty is an essential ingredient of the offence.”

The word “misappropriation” and the expression “coverts to his own use” in my view, do not mean the same thing even though both of them connote that he is already lawfully or innocently in possession of it. The word “appropriate” means “to set apart or assign” the property to oneself or to another to the exclusion of the owner. On the other hand, the word “misappropriates” simply means improperly uses and it must be at the instance of the misappropriator. Again, the word “coverts” means appropriation and dealing with property of another without right as if it is one’s own property.

In applying this dictum of the Supreme Court to the instant case, it is germane to set out relevant portions of the evidence of the prosecution witnesses in order to ascertain whether or not a prima facie case has been made out against the Appellant.

The PW1 is an investigator with the EFCC, who works as a senior detective. Under cross examination he said:
Q: From your investigation, the Conference ended at Dominican Republic on 19/10/11, the day the Estacode was collected.
A: Yes
Q: Do you agree that it was impossible for the 2nd Accused to travel with Estacode for the Conference which commenced on 17/10/11?
A: I agree with you.

In the case of PW2, who is also a staff of the EFCC, attached to the Bank Fraud section, he also had this to say during cross examination;
Q: Did the 2nd accused person misrepresent that he travelled when he did not travel?
A: No, he did not.
……………………….
……………………….
Q; Did you find out in your investigation whether the ticket was returned?
A: Yes I did.
PW3, is a staff of the National Assembly. During cross examination, he said
Q: Did the 2nd accused direct that the ticket be returned to SEC?
A: Yes
A: At the time the 2nd accused received the Estacode, the conference was concluded. He received the money around 10pm of 19/10/11
Q: Are you aware of any attempt he made to return the money?
A: The 2nd Accused asked me to return the money to SEC. That is after the ticket was returned. It was in October.
Q: Are you aware of any letter asking that the accused should return the money from SEC?
A: There was no such letter
PW4 is a staff of SEC, as a protocol officer. Under cross examination, he said:
Q: As a civil servant, is it correct to say that when Estacode is not used, it could be deducted from the Officer’s salary?
A: In case of our staff, if Estacode is collected and the staff did not travel, another trip will be arranged for them……………………
Q: In your statement to the police, you said that PW3 requested that the ticket of the 2nd accused be re-routed to Russia.
A: Yes
PW5 is also a staff of SEC. During cross examination, he said
Q: At what time is the officer supposed to return the money?
A: I can’t reject any money. Anytime he brings the money, I will collect.

It is evident from the foregoing uncontroverted pieces of evidence that the essential elements of dishonesty requisite in Sections 16, 308 and 309 of the Penal Code were not established, because there is no evidence placed before the trial court to prove that indeed the Appellant herein, committed the alleged offence charged.

It is on record, from the evidence of PW3 that the Appellant had in fact directed that the money should be returned to SEC in the same month in which it was given to him.

Evidence also abounds from the testimonies of PW3 and PW4 that there was a move made for the unused Estacode to be applied to another trip. This goes to show that there was genuine reason for the return of the Estacode and also there was nothing to infer dishonest intention as would justify the charge of criminal misappropriation made against the appellant under Sections 308 and 309 of the Penal Code.
Thus at the close of the Prosecution’s case, there was ample unambrated, unchallenged oral and documentary evidence as adduced by the prosecution witnesses during cross examination, which did not show or disclose the requisite mens rea for criminal misappropriation or criminal intention on the part of appellant under Section 308 of the Penal Code.

Apropos of the above, I have arrived at inexplicable conclusion that, there is no prima facie case, founded on Section 308 of the Penal Code established by the Prosecution to warrant a dismissal of the No case submission made on behalf of the Appellant at the lower court. Neither was there sufficient evidence to justify the continuation of the trial by calling upon the Appellant to explain or enter his defence, as the evidence was not sufficient to justify a continuation of the trial at the close of the prosecution’s case and also the essential elements of the offence, the appellant was charged were not established.

The most appropriate remedy would have been for the trial Judge to have upheld the No Case Submission and discharge the appellant herein.

The two issues are therefore resolved in favour of the appellant. I therefore in summation, hold that the lower court had wrongly overruled the No Case Submission. The evidence adduced by the prosecution (respondent) is so scanty and so manifestly unreliable for it to hold that a prima facie case was made against the appellant.

As a corollary, the appeal is adjudged meritorious and is hereby allowed. A verdict of discharge and acquittal is hereby entered in favour of the appellant.

JOSEPH TINE TUR, J.C.A.: I have read the lead judgment delivered by learned brother, Amiru Sanusi, OFR and I agree that there is merit in the appeal which should be allowed.

Section 191(1) to (3) of the Criminal Procedure Code sets out in clear terms what a learned trial judge sitting in a High Court (not a Magistrate or Area Court) should do at the close of the prosecution’s case to wit:
“(1) After the reading of the examination of the accused, in accordance with the provisions of Section 190 the accused may be examined as provided in Section 235 and he shall then be asked:
(a) whether he wishes to give evidence on his own behalf as provided in Section 236; and
(b) whether he means to call witnesses other than witnesses to character.
(2) If the accused says that he does not intend to call any witness other than witnesses to character, the prosecutor, if any, may sum up his case against the accused and the Court shall then call upon the accused to enter upon the defence.
(3) Notwithstanding the provisions of subsection (2), the Court may, after hearing the evidence for the prosecution if it considers that the evidence against the accused or any of several accused is not sufficient to justify the continuation of the trial, record a finding of not guilty in respect of such accused without calling upon him or them to enter upon the defence and such accused shall thereupon be discharged and the Court shall then call upon the remaining accused, if any, to enter upon the defence.”

Upon a no case submission by the defence Counsel at the close of the prosecution’s case the legislative intention under Section 191(3) of the Criminal Procedure Code is that, “….the Court may after hearing the evidence for the prosecution if it considers that the evidence against accused or any of several accused is not sufficient to justify the continuation of the trial, record a finding of not guilty in respect of such accused without calling upon him or them to enter upon their defence and such accused shall thereupon be discharged and the Court shall then call upon the remaining accused, if any, to enter upon the defence.” What is generally referred to as a “no case submission” assumes a statutory definition under the Criminal Procedure Code applicable in the Northern States and the Federal Capital Territory, Abuja.

The “evidence against the accused or any of several accused” the Court should consider at the close of the prosecution’s case stage includes oral and documentary exhibits tendered by the prosecution. lf these are not sufficient to justify the continuation of the trial, the learned trial Judge should uphold the no case submission and decline further trial by entering a finding of not guilty in respect of such an accused(s) which is equivalent to a discharge and an acquittal. See unreported judgment in Appeal No. CA/A/497C/2013 viz Hon. Iorwase Herman Hembe vs. Federal Republic of Nigeria delivered on 14th day of March, 2014 in the Abuja Division of the Court of Appeal.

Austin Adache, an investigator with the Economic and Financial Crimes Commission (EFCC) testified as PW1 on 23rd January, 2013 and was cross-examined by Onyeachi Ikpeazu, SAN. At page 13 line 8 – 11 PW1 answered as follows:
“…I am not aware that 2nd accused instructed Ogunsanya to return the ticket and estacode but SEC refused to accept. I was not in Court when Ogunsanya Titus gave his evidence in the other Court. I agree it was impossible for 2nd accused to be in Dominican Republic on the 17th October, 2011.”

When Udoh Annette Jonathan (Pw2) of the EFCC, another investigator testified and was cross-examined by the learned silk, the witness answered inter alia:
“…I did not come across any rule from security and exchange commission which stipulates time frame for the return of estacode. ……The 2nd accused returned the Ticket but did not return the estacode….”
See page 16 lines 19-23 of the printed record.

Ibrahim Usman (PW3) who pays estacode in the EFCC testified under cross-examination as follows:
“…there is no written directive that a person who did not travel should return the estacode if he give somebody money to travel and he did not travel, he should return the money back. I function based on financial regulations. I don’t know if it is contained in any rule that once government money is collected for a particular assignment if that person fails to go for the assignment, he should return the money. I don’t know if my office fixed a period to return the money. I deal with payment of Estacode. At the time Estacode was paid, my office knows that the conference had ended. I don’t know who arranged and scheduled the conference. The Estacode was to enable them travel…”
See page 25 lines 9-19 of the printed record.

Then comes the most damaging evidence adduced on behalf of the prosecution by Hassan Mamman (Pw4) under cross-examination by the learned SAN:
“I have been a Protocol officer since 2003. The Estacode is part of the money for accommodation. Once Estacode is approved, the money becomes the officer’s money.”
See page 29 lines 21-23 of the printed records.

Furthermore, at page 30 lines 4-6 of the printed record Pw4 testified under cross-examination as follows:
“…if Estacode is not used, another trip may be arranged for him. If he does not travel, he has done no wrong by keeping the Estacode…”

With the kind of evidence from the prosecution witnesses who have shown that no wrong is committed by the person paid estacode if he did not travel, and the Estacode when approved, the money becomes his, how can a dishonest intention be imputed to the appellant for not returning the Estacode to the Securities and Exchange Commission? Section 16 of the Penal Code reads as follows:
“16. A person is said to do a thing “dishonestly” who does that thing with the intention of causing a wrongful gain to himself or another or of causing wrongful loss to any other person.”

At the close of the prosecution’s case there was no iota of evidence that the appellant had done anything dishonestly with the intention of causing a wrongful gain to himself or wrongful loss to the Securities and Exchange Commission. The prosecution witnesses testified that when the Estacode is approved it becomes appellant’s money and he could keep it. Besides, the prosecution was aware that the appellant could not have attended the conference in the Dominican Republic by 17th October, 2011 because the conference was to come to an end on 19th October, 2011. Nevertheless Pw4 paid the estacode only for the prosecution to slam the appellant with a charge under Section 308 of the Penal Code which reads as follows:
“308 Whoever dishonestly misappropriates or converts to his own use any movable property, commits criminal misappropriation”
How can a person commit criminal misappropriation against his own money or movable property? This is unheard of in the annals of criminal jurisprudence in this country.

For the above reasons, I am also of the candid opinion that at the close of the prosecution’s case, if the learned trial judge had considered the totality of the prosecution’s case, he ought to have held that there was no sufficient evidence to justify the continuation of the trial but to have entered a finding of not guilty. The appellant ought to have been discharged and acquitted. Accordingly, I enter a finding of not guilty, discharge and acquit the appellant.

TINUADE AKOMOLAFE-WILSON, J.C.A.: I have had the opportunity of reading in draft the lead judgment just delivered by my learned brother, Sanusi, JCA, OFR. My lord has exhaustively dealt with the issues involved in this appeal. I am in full agreement with his reasoning and conclusion reached by him. I have nothing useful to add.
The appeal succeeds. I abide by the orders made therein.

Appearances

Dr. Onyechi Ikpeazu SAN with Emeka Etiaba, Moris Ekwechi Miss, Tochukwu Nweka, Oge Iloegbunam and Julius MesahFor Appellant

AND

Chike Okoroma with M. E. Eimonye Miss and Mrs A. S. AbuFor Respondent