KURFI & ANOR v. FRN
(2022)LCN/16954(CA)
In The Court Of Appeal
(KANO JUDICIAL DIVISION)
On Monday, February 07, 2022
CA/KN/06/C/2021
Before Our Lordships:
Habeeb Adewale Olumuyiwa Abiru Justice of the Court of Appeal
Abubakar Muazu Lamido Justice of the Court of Appeal
Usman Alhaji Musale Justice of the Court of Appeal
Between
- RABIU YUSUF KURFI 2. SUMMERSET UNIVERSAL PREMIER LIMITED APPELANT(S)
And
FEDERAL REPUBLIC OF NIGERIA RESPONDENT(S)
RATIO
THE POSITION OF LAW ON NO CASE SUBMISSION
It is a settled law that a no case submission means that there is no evidence on which the Court could convict even if it believes all that the prosecution’s witness have said. In practice, the application made by the accused has the effect of saying that the accused be discharged on the ground that the totality of the evidence adduced by the prosecution and placed before the Court in proof of the offence charged does not disclose a prima facie case against him to warrant the confirmation of the trial by calling him to enter his defence. See SUBERU VS. THE STATE (2010) 8 NWLR (PT 1197) 585 and SHINKAFI & ANOR VS. FRN (2017) LPELR 42701. PER LAMIDO, J.C.A.
THE PRINCIPLES THE COURT SHOULD CONSIDER WHEN DECIDING ON WHETHER OR NOT TO UPHOLD A SUBMISSION OF NO CASE
The principles that a Court should take into consideration in deciding whether or not to uphold a submission of no case have been restated over and over. It is settled law that in criminal trials a no case submission made on behalf of the accused postulates one or two things. First, there is no legally admissible evidence against the accused linking him with the commission of the offence charged which will necessitate his being called upon to enter a defence and secondly, that the evidence adduced has been so discredited under cross-examination that no reasonable Court can be called upon to act on it in order to establish the guilt of the accused. See UBANATU VS. C. O. P. (2001) 1 SC 31; AGBO VS. STATE (2013) 11 NWLR (PT 1365) 393; MBANUGO VS. THE STATE (2017) LPELR 43581 and AJI VS. FRN (2018) LPELR 45393.
Now, the essence of a submission of no case to answer lies in the contention by the accused that the evidence adduced by the prosecution in proof a charge against him has failed to establish a prima facie case or establish the ingredients of the offence against him to force the Court to call upon the accused to enter his defence. The paramount consideration of the trial Court where a no case submission is made is not whether the evidence adduced by the prosecution is sufficient to ground a conviction but whether a prima facie case requiring some explanation from the accused has been made not. PER LAMIDO, J.C.A.
DEFINITION OF A PRIMA FACIE CASE
In AGBO VS. STATE (SUPRA) AT 394, the Supreme Court defines a prima facie case in the following way:-
“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. When a prima facie case is said to have been disclosed against an accused person all that means is that there were grounds for proceeding with the trial.”
Also, in Black’s Law Dictionary, 11th Edition P. 1441, prima facie case has been defined as:
“The establishment of a legally required rebuttable presumption. (2) A Party’s production of enough evidence to allow the fact – trier to infer the fact at issue and rule in the party’s favour.”
A prima facie evidence should not be confused with 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 would be sufficient to prove the case against the accused. See SULEIMAN VS. FRN (2017) LPELR 43353. However, recent pronouncements of the Supreme Court suggest that where the evidence adduced indicates that there is something worth looking at. See DURU VS. NWOSU (1989) 1 NWLR (PT. 113) 24 and ABACHA VS. THE STATE (2002) 11 NWLR (PT. 779) 437. PER LAMIDO, J.C.A.
WHETHER OR NOT THE COURT CAN EXPRESS ANY OPINION ON THE EVIDENCE BEFORE IT WHEN RULING ON A CASE OF NO SUBMISSION
At the stage of ruling on no case submission, the Court is not to express any opinion on the evidence before it. The Court is only to note and rule that there is no legally admissible evidence linking the accused with the commission of the offence. In essence, the ruling of the trial Court in a no case submission shall be very brief without touching on the evidence adduced before it. However, where the prosecution adduces evidence however slight, linking the accused with the commission of the offence charged, the case ought to proceed and the accused shall be called upon to enter his defence. In AGBO VS. THE STATE (SUPRA) AT 394, Fabiyi, JSC held that:-
“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.”
See IBEZIAKO VS. COP (1963) 1 SCNLR 99; DABOH VS. THE STATE (1977) 5 SC 177; IGABELE VS. THE STATE (2004) 15 NWLR (PT. 896) 314 and FAGORIOLA VS. FRN (2013) 17 NWLR (PT. 1383) 322.
Section 311 of the Penal Code provides that:-
311 “Whoever being in any manner entrusted with property or with any dominion over property dishonestly misappropriates or converts to his own use that property or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged or of any legal contract express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits criminal breach of trust.” PER LAMIDO, J.C.A.
ABUBAKAR MUAZU LAMIDO, J.C.A. (Delivering the Leading Judgment): This is an appeal against the ruling in a no case submission by the Kano State High Court delivered on 2nd December, 2020; Coram: Dije Abdu Aboki, J. The Appellant is standing trial on a one count charge of criminal breach of trust contrary to Section 312 of the Penal Code. The Charge reads as follows:-
“That you Rabiu Yusuf Kurfi being a Director of Summerset Universal Premier Limited and Summerset Universal Premier Limited sometimes between 3rd – 10th September, 2015 at Kano in the Kano Judicial Division of the High Court, being entrusted with dominion over certain properties to wit; N57,840,000.00 (Fifty Seven Million, Eight Hundred and Forty Thousand Naira) by Okechukwu Obiapuma and Nnamdi Mbah that you are selling $260,300 (Two Hundred and Sixty Thousand, Three Hundred US Dollars) equivalent of N57,840,000.00 (Fifty Seven Million, Eight Hundred and Forty Thousand Naira) did dishonestly misappropriate the sum of $240,300 (Two Hundred and Forty Thousand, Three Hundred US Dollars) out of the said sum and you thereby committed an offence contrary to Section 311 of the Penal Code Act CAP 532 Laws of the Federation of Nigeria 1992 and punishable under Section 312 of the same Act.”
The Appellants pleaded not guilty to the charge and the prosecution opened their case by calling 4 witnesses and tendered in evidence Exhibits A, B, C, C1 and D. The prosecution closed its case and the Appellants made a no case submission which was overruled by the trial Court. The ruling of the trial Court is the basis of this appeal. The notice of appeal filed by the 1st Appellant contained four grounds of appeal as follows:-
GROUND ONE
The learned trial Court erred in law and thereby occasioned a miscarriage of justice when it held inter-alia at page 30 paragraph 4 of the ruling thus:-
“The evidence in this case has linked the 1st Accused with the offence charged and thus a prima facie case is established …”
PARTICULARS
1. Proof of the absence of the essential elements of the alleged offence against the 1st accused/Defendant is a ground for a successful plea of no case submission in his favour.
2. Where the evidence adduced by the prosecution has been so discredited as a result of cross-examination as in the instant case, the plea of no case should be upheld.
3. The learned trial Court to the prejudice of the 1st Appellant failed to pronounce on the absence of the essential elements of the offence as enjoined by the Apex Court in C.O.P VS. AMUTA (2017) 4 NWLR (PT. 1556) 379 copiously cited before the trial Court.
4. There was no proof of the existence of mens rea in the commission of the offence of criminal breach of trust contrary to Section 311 of the Penal Code Law of Kano State.
5. It is trite that where the prosecution has not led cogent evidence as in the instant case, it is not compulsory to ask the 1st Accused to put up a defence.
6. It is also trite that the Court is under an obligation not to act on speculation but of material evidence before the Court o element of criminal breach of trust who placed before the Court by the prosecution.
7. It is a trite principle of law that before a conclusion can be arrived at that an offence had been committed by an accused person as in the instant case, the Court must look for the ingredients of the offence and ascertain critically that the acts of the accused person comes within the confines of the particulars of the offence charted AMADI VS. THE STATE (1993) 7 NWLR (PT. 314) 644 AT 644 PARA A.
8. It is a constitutional requirement that every person who is charge with a criminal offence will be presumed to be innocent until he is proved guilty.
9. The above conclusion of the learned trial Court is conclusive as to the guilt of the 1st accuser person/Appellant on the charge before the trial Court.
10. It is a trite law that a trial Court is under an obligation in its quest for justice to look at the totality of the records and materials in its docket and file before arriving at a conclusion.
GROUND TWO
i. The learned trial judge erred in law and thereby occasioned a miscarriage of justice when it held inter-alia that:-
“Having earlier stated that a prima facie case is disclosed against the 1st accused, the no case submission is overruled …”
PARTICULARS
1. It is trite that where there is a doubt about the role played by an accused, the doubt should be resolved by the Court in his favour even at the point of determining a NO CASE address.
2. It is a trite in criminal trial the ONUS of proof is on the prosecution to establish the commission and not the duty of the 1st accused person to supply the missing links to the case of the prosecution.
3. Where an essential element of the offences is not before the Court in the evidence of the prosecution, the accused is entitled to be discharged on the no case.
GROUND 3
The learned trial Court erred in law thereby occasioned a miscarriage of justice when it held inter-alia at page 31 paragraph 4 that:-
“… The call by defence Counsel for this Court to consider the two applications in which ruling on the no case submission cannot be acted upon for the were fact that the no case submission is not successful. In my opinion, this will only become necessary where the Court upholds the no case submission and in that scenario every pending application that was moved has to be ruled upon one way or the other since upholding the no case submission has the effect of bringing the case to an end. Since that scenario does not apply in the instant case I will refrain from ruling on those applications until the stage of judgment”.
PARTICULARS
1. The 1st accused person’s application mentioned by the Court above was the one date 20th January, 2020 but filed on 21/01/202 and the reliefs sought in the motion are two basic reliefs seeking to quash the charge No. K/EFCC 06/2019 dated 11th February, 2019 before the lower Court and an order for stay the determination of the matter in view of the pendency and orders of Kano State High Court in another Suit No. K/153/2018 between the 1st Appellant and Mrs. Ekene Ohumaegbulum and the EFCC.
2. The grounds upon which the application was filed was as follows:-
a) There is a subsisting and pending case with Suit No. K/153/2018 between the applicant and the complainant Mrs. Ekene and the EFCC before the Kano State High Court presided over by Hon. Justice Usman Malam NA Abba.
b) The suit is commenced by way of writ of summons and statement of claim and the parties in the suit have joined issues as the defendants have filed their respective statements of defence.
c) The said Court also issued an order dated 27/3/2018 restraining the defendants from intimidating harassing, arresting and/or detaining the 1st Appellant.
3. That PW2 admitted knowledge of the Court orders of 27/03/2018 in Suit No. K/153/2018 and that he is not aware of the orders are set aside.
4. It is during the pendency of Suit No. K/153/2018 and during the operation of the orders of the Court of 27/03/2018 that the 1st Appellant was arrested and detained in disobedience to the Court orders.
5. Court orders are meant to be obeyed even if the person disobeying (the EFCC in the instant case) is of the view that the orders are wrong. They ought to have it set aside.
6. It is trite that actions made in contravention of lawful Court orders/directives are Null and Void and therefore the detention of the 1st Appellant and his subsequent investigation as well as action taking by the EFCC in contravention of Court orders and more particularly the filing of the Charge No. K/EFCC 06/2019 are null and void.
7. The effect of the reliefs in the motion on notice dated 20th January, 2020 also have the effect of “Bruising the case to an end” a position by the lower Court.
8. The trial Court ought to rule on the 1st Appellant’s application dated 20/01/2020 or await the outcome of Suit No. K/153/2018 as held by the Court of Appeal in CHIEF AGBASO V. INEC 2010, 1 NWLR (PT. 1174) AT 345 and the Apex Court in UGO V. UMMUNA 2018 ALL FWLR (PT. 926) 35 AT 67 PARAS. B – D.
GROUND 4
That the decision of the learned trial Court is unreasonable, unwarranted and cannot be supported having regard to the evidence.
In arguing the appeal, Counsel to the Appellants filed a brief of argument on 18/01/2021 and a reply brief on 05/02/2021. The Appellants’ brief of argument contains single issue for determination as follows:-
Whether having regards to the facts, documents and circumstances placed before the trial Court, the Respondent made out a prima facie case against the Appellants and whether the trial Court was right when it overruled the no case submission made on behalf of the Appellants.
The Respondent filed its brief of argument on 27/01/2021 and also formulated a lone issue for determination in the following way:-
Whether from the evidence adduced before the trial Court a prima facie case has been made out against the Appellants which warranted the trial Court to overrule the no case submission of the Appellants.
I have considered the two issues for determination formulated by both Counsel and it seems the Appellant’s Counsel formulated by parties are similar, two issues in one issue formulated by the Appellants. Though, the two issues formulated the Court will reformulate the issue. The re-formulated issue is:-
Whether having regard to the evidence adduced at the trial, the learned trial judge was correct in finding that a no case submission made by the Appellants is not sustainable.
This appeal will be resolved on this sole issue for determination taking into consideration the argument of parties respectively.
In arguing the issue, learned Counsel for the Appellants Salisu Sule, Esq., submitted that the law allows a person charged with a criminal offence to, at the end of the evidence of the prosecution make a no case submission and the Court can suo motu discharge the accused if there is no sufficient evidence to justify the continuation of the trial. He referred to Sections 191 (3) of the Criminal Procedure Code and 303 of the Administration of Criminal Justice Law, Kano State 2019. In a decision to uphold or overrule a no case submission made, the Court is left with no option than to consider the merits of the arguments as no room is left for sentiment or guess work. He referred to STATE VS. AJULUCHUKWU (2011) 5 NWLR (PT. 1239) 78 and TONGO VS. C.O.P (2007) 12 NWLR (PT. 1049) 525.
He argued that where the Respondent fails to establish the essential ingredients of an offence, it is not for the trial Court to call upon the Appellant to enter his defence. He referred to TONGO VS. C.O.P. (Supra). The trial Court was therefore wrong to have overruled the no case submission in the absence of evidence being led against the Appellant. He further argued that though the trial Court was right in refusing to express an opinion on the evidence led, yet it has the duty to examine whether the prosecution cannot translate to an examination of the evidence before the Court. He referred to ABRU VS. THE STATE (2011) 17 NWLR (PT. 1275) 1; AJOSE VS. FRN (2011) 6 NWLR (PT. 1244) 465; GARBA VS. THE STATE (2011) 14 NWLR (PT. 1266) 115 and OKORO VS. THE STATE (1988) 5 NWLR (PT. 94) 255.
He argued that a no case submission can be upheld where the prosecution fails to prove any ingredient of the offence or where the witnesses were destroyed during cross-examination in that no reasonable Court can believe them. Therefore, the finding of the trial Court that there is a prima facie case against the Appellants without considering whether any of the ingredients of the offence of criminal breach of trust was not proved is flawed. He argued that if the evidence of PW1 and PW2 is taken as a whole and by the clean admission of PW1 and PW3 who are the main actors in the transactions leading to this appeal that they have never met the 1st Appellant in person talk less of transacting with him, their testimony under cross-examination was rendered unreliable to secure a conviction.
He further submitted in a charge under Section 311 of the Penal Code bordering on criminal breach of trust and dishonest misappropriation, the names of the owners of the money allegedly misappropriated were never mentioned in the criminal complaint in Exhibit A. The law requires a proof of the ingredients of the offence beyond reasonable doubt and the prosecution must prove the following ingredients:-
i. that the accused was entrusted with property or with dominion over it,
ii. that he
a. misappropriated;
b. used it, or;
c. disposed of it, or;
d. that he did so dishonestly.
All the 4 witnesses produced by the prosecution and the exhibits tendered did not establish any or all of the ingredients of the offence of criminal breach of trust or misappropriation. This is so because the et is not established that the Appellants were entrusted with property in the sum as contained in the charge as both PW1 and PW3 admitted not knowing the 1st Appellant. Also, no single documentary evidence was tendered to show that the Appellants were entrusted with the alleged sum. The Court cannot therefore speculate in the absence of documentary evidence. He referred to ABU VS. STATE (2010) 17 WRN 158. In the absence of any material evidence from the prosecution witnesses and Exhibits A, B, C, and D, it follows therefore that no prima facie case is made against the Appellants. The lone charge against the Appellants ought to fail.
He further argued that none of the essential ingredients for the offence of criminal breach of trust was established by the prosecution. He referred to OLADEJO VS. STATE (1994) 6 NWLR (PT 348) 107 and UGBAKA VS. STATE (1994) 8 NWLR (PT. 364) 568. That the law is well settled that where the prosecution fails to prove its case beyond reasonable doubt, then the accused is entitled to be discharged. He referred to NJOKU VS. STATE (2013) 2 NWLR (PT 1339) 546.
In arguing the issue in the Respondent’s brief, learned Counsel for the Respondent Salihu Sarki, Esq., submitted that the Supreme Court has stated that a no case submission can only be upheld in two situations where there is no legally admissible evidence to prove an essential ingredient of the offence and where the evidence adduced by the prosecution has been so discredited as a result of cross-examination or its manifestly unreliable that no reasonable Tribunal can safely convict on it. He referred to AGBO VS. STATE (2013) 11 NWLR (PT. 1365) 393.
He also argued that the trial Court is expected to give a brief ruling in a no case submission taking care not to make any observation or remarks on the facts so as not to fetter its discretion. He referred to UBANATU VS. C. O. P. (2000) 1 SC 31; OMISORE VS. STATE (2005) VOL. I. QCCR 148 and BELLO VS. STATE (1967) 1 NWLR 1. All that is required of the Court at this stage is to ascertain whether there is any evidence at all no matter how slight linking the accused with the offence charged, then a prima facie case is established against the accused requiring some explanation.
He stated that looking at the ingredients of the office with which the Appellants are charged, PW1 testified as to how the sum of N57,840,000:00 was transferred to the account of the 2nd Appellant and thus established the first ingredient of the offence and through PW3’s testimony the second ingredients of the offence was equally proved and proof of the mens rea or dishonest intention can be seen from the acts of the Appellants. He further stated that at this stage of prosecution, what the law requires is for the prosecution to establish a prima facie case against the Appellants and not a proof beyond reasonable doubt as erroneously believed by the Appellants’ Counsel. He urged the Court to dismiss this appeal.
I have gone through the reply brief filed by the Appellants which contains further arguments on the Appellants’ brief of arguments though couched as responses to the arguments in the Respondent’s brief of argument. The Respondents’ brief did not raise any new issue to the arguments canvassed in the Appellants’ brief of argument. The reply brief to my mind contains argument in further adumbration of the Appellants’ brief. The essence of a reply brief has been explained by the Supreme Court in LONGE VS. FIRST BANK OF NIG PLC (2010) 6 NWLR (PT 1189) 1 thus:
“A reply brief is necessary and usually filed when an issue of law or argument raised in the Respondents’ brief calls for a reply. Where a reply brief is necessary, it should be limited to answering new points arising from the Respondent’s brief… It is not proper to use reply brief to extend the scope of the Appellant’s brief or raise new issue not dealt with in the Respondent’s brief. It is not to afford an Appellant another bite at the cherry…”
See IDAGU VS. STATE (2018) LPELR 44343, YONGOSI VS. ADENIYI (2018) LPELR 49125 and GTB VS. FOCUSED EXPERIMENTAL MARKETING LTD (2021) LPELR 53188. The Appellants’ reply brief did not answer any new issue since the Respondent raised none in its brief of argument. It is inappropriately filed and will be discountenanced.
The Appellants were charged with the offence of criminal breach of trust contrary to Section 311 and punishable under Section 312 of the Penal Code. At the close of the case for the prosecution, the Appellants’ Counsel made a no case submission on behalf of the Appellants. The trial Court in its ruling overruled the objection and ordered the Appellants to enter their defence. The ruling of the trial Court spurred this appeal.
It is a settled law that a no case submission means that there is no evidence on which the Court could convict even if it believes all that the prosecution’s witness have said. In practice, the application made by the accused has the effect of saying that the accused be discharged on the ground that the totality of the evidence adduced by the prosecution and placed before the Court in proof of the offence charged does not disclose a prima facie case against him to warrant the confirmation of the trial by calling him to enter his defence. See SUBERU VS. THE STATE (2010) 8 NWLR (PT 1197) 585 and SHINKAFI & ANOR VS. FRN (2017) LPELR 42701.
The principles that a Court should take into consideration in deciding whether or not to uphold a submission of no case have been restated over and over. It is settled law that in criminal trials a no case submission made on behalf of the accused postulates one or two things. First, there is no legally admissible evidence against the accused linking him with the commission of the offence charged which will necessitate his being called upon to enter a defence and secondly, that the evidence adduced has been so discredited under cross-examination that no reasonable Court can be called upon to act on it in order to establish the guilt of the accused. See UBANATU VS. C. O. P. (2001) 1 SC 31; AGBO VS. STATE (2013) 11 NWLR (PT 1365) 393; MBANUGO VS. THE STATE (2017) LPELR 43581 and AJI VS. FRN (2018) LPELR 45393.
Now, the essence of a submission of no case to answer lies in the contention by the accused that the evidence adduced by the prosecution in proof a charge against him has failed to establish a prima facie case or establish the ingredients of the offence against him to force the Court to call upon the accused to enter his defence. The paramount consideration of the trial Court where a no case submission is made is not whether the evidence adduced by the prosecution is sufficient to ground a conviction but whether a prima facie case requiring some explanation from the accused has been made not.
In AGBO VS. STATE (SUPRA) AT 394, the Supreme Court defines a prima facie case in the following way:-
“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. When a prima facie case is said to have been disclosed against an accused person all that means is that there were grounds for proceeding with the trial.”
Also, in Black’s Law Dictionary, 11th Edition P. 1441, prima facie case has been defined as:
“The establishment of a legally required rebuttable presumption. (2) A Party’s production of enough evidence to allow the fact – trier to infer the fact at issue and rule in the party’s favour.”
A prima facie evidence should not be confused with 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 would be sufficient to prove the case against the accused. See SULEIMAN VS. FRN (2017) LPELR 43353. However, recent pronouncements of the Supreme Court suggest that where the evidence adduced indicates that there is something worth looking at. See DURU VS. NWOSU (1989) 1 NWLR (PT. 113) 24 and ABACHA VS. THE STATE (2002) 11 NWLR (PT. 779) 437.
At the stage of ruling on no case submission, the Court is not to express any opinion on the evidence before it. The Court is only to note and rule that there is no legally admissible evidence linking the accused with the commission of the offence. In essence, the ruling of the trial Court in a no case submission shall be very brief without touching on the evidence adduced before it. However, where the prosecution adduces evidence however slight, linking the accused with the commission of the offence charged, the case ought to proceed and the accused shall be called upon to enter his defence. In AGBO VS. THE STATE (SUPRA) AT 394, Fabiyi, JSC held that:-
“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.”
See IBEZIAKO VS. COP (1963) 1 SCNLR 99; DABOH VS. THE STATE (1977) 5 SC 177; IGABELE VS. THE STATE (2004) 15 NWLR (PT. 896) 314 and FAGORIOLA VS. FRN (2013) 17 NWLR (PT. 1383) 322.
Section 311 of the Penal Code provides that:-
311 “Whoever being in any manner entrusted with property or with any dominion over property dishonestly misappropriates or converts to his own use that property or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged or of any legal contract express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits criminal breach of trust.”
The Respondent led evidence through the prosecution witnesses that PW1 was introduced to the 1st Appellant by a colleague of hers that the 1st Appellant has US Dollars to sell, then she contacted him on phone and upon agreeing on the amount to be paid for the US Dollars they needed she contacted two of her clients who wanted the Dollars. The sum of N57,340,000 was transferred into the 2nd Appellants account and the said sum was for a value of USD 260,300.00. The Appellants however sent only USD 20,000.00 leaving a balance of USD 240,300. The 1st Appellant informed them that he has remitted the money and gave them copy of bank tellers which upon enquiries turned out to be fake. She then in company of the real owners of the money came to Kano in search of the 1st Appellant. The case was then reported to the EFCC who investigated same and charge the Appellants to Court accordingly. The 1st Appellant as was found out is the sole signatory to the 2nd Appellant’s account where the money was deposited. PW2 deposited the sum of N57,800,000.00 in instalments. He said only the sum of USD 20,000.00 was remitted to their business partners in China leaving a balance of USD 240,300.
PW4 is a banker and account officer of the 2nd Appellant. He stated that the 1st Appellant is the sole signatory to the account and gave a run down of all cash deposits and transfers made on the account from 03/09/2015 to 10/09/2015. The cash deposit included the sum of N4,440,000.00 and a payment made to Auwalu of N4,4000,000 by the 2nd Appellant. There was a deposit of N110,000,000.00 by Eze Impex, a deposit of N8,200,000.00 by Oke and on 09/09/2015 there was another deposit of N17,000,000.00 by Obi Okechukwu and several other deposits and transfers to other individuals.
It is important to note that the Appellants have strenuously argued that PW1 and PW3 never saw the 1st Appellant in person and that is quite true as both witnesses admitted not knowing the 1st Appellant before the transaction and at the time of the transaction. That the 1st Appellant supplied an account number where the deposits were made. Importantly, the Appellants were not contending that the deposits were not made, but rather the 1st Appellant was not personally handed the money. As preposterous as the argument sounds, it has no place at this stage of the case. The fact that PW1 and PW3 had no personal contact with the 1st Appellant did not disprove any of the ingredients of the offence of criminal breach of trust contrary to Section 311 of the Penal Code.
Importantly, there are exhibits tendered which the learned trial judge deferred his ruling until the judgment stage which includes the extra-judicial statement made by the 1st Appellant. Though the trial Court did not admit the said statement, I would not comment on the said document and other documents the ruling on their admissibility is deferred by the trial Court. Howbeit, from the evidence adduced, it is my humble opinion that the trial Court had a good reason and is on a firm footing that the Appellants should enter their defence. The no case submission made by the Appellants richly deserved to be overruled by the trial Court.
In conclusion, I find no merit in this frivolous appeal. It was filed to waste the time of the Court and stall the proceedings at the trial Court. This appeal is accordingly dismissed. The decision of the Kano State High Court in Suit No. EFCC/06/2019 delivered by Dije Abdu Aboki, J. overruling the no case submission made by the Appellants be and is hereby affirmed.
HABEEB ADEWALE OLUMUYIWA ABIRU, J.C.A.: I have had the privilege of reading before now the lead judgment delivered by my learned brother, Abubakar Mu’azu Lamido. JCA. His Lordship has ably considered and resolved all the issues in contention in the appeal. I agree with the reasoning and abide by the conclusions reached therein.
This appeal is against the refusal of a no case submission. The principles governing the grant of a no case submission are settled. On the strength of the evidence led, I find that the lower Court was correct in holding that the Respondent made out prima facie case against the Appellants enough to warrant the Appellants entering a defence. This appeal has no iota of merit and it is clearly a misuse and an abuse of the appellate Court process. I too hereby dismiss the appeal and affirm the decision contained in the ruling of the High Court of Kano delivered in Suit No. EFCC/06/2019 by Honorable Justice Dije Abdu Aboki on the 2nd of December, 2020.
USMAN ALHAJI MUSALE, J.C.A.: I have had the privilege of reading in draft the judgment delivered by my learned brother ABUBAKAR MU’AZU LAMIDO, JCA. The stand of my brother on the issues raised and dealt with before us and the reasoning and conclusion reached by my Lord tallied with mine. I too found that the appeal is unmeritorious. The appeal is equally dismissed by me and I abide by the consequential orders made therein.
Appearances:
SALISU SULE, ESQ., WITH HIM, FAROUK ASEKOME, ESQ. AND S.A. MAGASHI, ESQ. For Appellant(s)
AISHA IBRAHIM, ESQ., WITH HIM, SALIHU SANI, ESQ., AND DOUGLAS I. GIFT, ESQ. For Respondent(s)