THE STATE v. CHIEF SEBASTIAN AJULUCHUKWU & ANOR (2010)

THE STATE v. CHIEF SEBASTIAN AJULUCHUKWU & ANOR

(2010)LCN/4032(CA)

In The Court of Appeal of Nigeria

On Tuesday, the 9th day of November, 2010

CA/C/46/2009

RATIO

NO-CASE SUBMISSION: THE LEGAL BASIS FOR A NO-CASE SUBMISSION

At the end of the evidence of the prosecution in a criminal trial, the accused person is entitled to take benefit of Section 286 of Criminal Procedure Act, cap. 41 Laws of the Federation of Nigeria, 2004 that: “If at the close of the evidence in support of the charge, it appears to the court that a case is not made out against the defendant sufficiently to require him to make a defence, the court shall, as to that particular charge discharge him.” The above provision is the legal basis for a no case submission. It means that where there has not been any evidence to establish the essential ingredients of the alleged offence, or the evidence of the prosecution has become manifestly unreliable after cross examination that it cannot reasonably be basis for conviction; the respondents should be discharged without being called upon for a defence. See: Fidelis Ubanatu vs. G.O.P (2000)1 SC 31. If on the other hand evidence exists on the record sufficient enough to infer the connection of the accused with the Commission of the alleged crime, and suggest his guilt unless he makes an explanation, the no case submission stands misplaced and must fail: Tongo vs. C.O.P (2007 All FWLR (pt. 376) 636; Mohammed vs. state (2007) All FWLR (Pt. 366) 668. PER ISAIAH OLUFEMI AKEJU, J.C.A.

CONSPIRACY: WHEN IS THE OFFENCE OF CONSPIRACY COMMITED

The offence of conspiracy is committed when two or more persons agree to effect an unlawful act or to use an unlawful means to carryout an act that is ordinarily lawful. See Majekodunmi vs. R (1952) 14 WACA 64; Oduneye vs. The State (2001) 1 SC (Pt. 1)1. Conspiracy can be inferred from the conduct of the accused. PER ISAIAH OLUFEMI AKEJU, J.C.A.

STEALING AND OBTAINING BY FALSE PRETENCE: INGREDIENTS OF STEALING AND OBTAINING BY FALSE PRETENCE THAT MUST BE ESTABLISHED BY THE PROSECUTION

JUSTICES

KUMAI BAYANG AKAAHS Justice of The Court of Appeal of Nigeria

MASSOUD A. OREDOLA Justice of The Court of Appeal of Nigeria

ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria

Between

THE STATE Appellant(s)

AND

1. CHIEF SEBASTIAN AJULUCHUKWU
2. ENGINEER MAXWELL IKPO Respondent(s)

ISAIAH OLUFEMI AKEJU, J.C.A. (Delivering the Leading Judgment): The two respondents in this appeal were the accused persons in charge No.HC/13C/2006 before the High Court of cross River State sitting at Calabar on a three count charge of:
1. Conspiracy contrary to Section 51g (6);
2. Stealing contrary to Section 390 (9);
3. Obtaining money by false pretences contrary to Section 419; all of the Criminal Code Cap.31 Vol. II Laws of Cross River State of Nigeria, 1983.
The particulars of offence are that between July and August 2004, the respondents conspired to steal the sum of N6.2m property of the Motor and Motorcycles Spare Parts Dealers Association of Nigeria, Calabar while the 2nd respondent with the company of the 1st respondent and with intent to defraud, obtained the sum of N6.2m from the Motor and Motorcycles Spare Parts Dealers Association of Nigeria, Calabar by falsely pretending that he (2nd respondent) had two hectares of land at Ikot Eneobong, Calabar Municipality to sell to the Association.
The Motor and Motorcycles Spare Parts Dealers association of Nigeria, Calabar will hereinafter in this judgment be referred to as the Association.
The respondents pleaded not guilty to the three counts and the prosecution called four witnesses. At the end of the evidence, the learned counsel to the respondents made a no case submission which the learned trial judge upheld and thereby discharged and acquitted the respondents.
The learned judge in his ruling dated 1sth July, 2008 found as follows:
“Based on the analysis above there is no prima facie evidence that the N6.2m was obtained by 1st accused at the time President of the Association, who merely handed over money and cheques to 2nd accused person and collected receipts therefore in the name of the Association and handed them over to the Association (Exhibits 7A-7E). The 1st accused person who received the monies and cheques and issued receipts therefore did not obtain the money and cheques by false pretences with any intention to defraud the Association having shown that indeed 2nd accused person had a land allocation from Federal Ministry of Housing (Exhibit 5) to transfer to the Association.”
See pages 60-61 of the Record of Proceedings.
Dissatisfied with the ruling and order of the lower court the appellant appealed to this court on four grounds. The learned counsel to the appellant, P. S. Bisong, Deputy Director of Public Prosecutions in the Ministry of Justice, Calabar filed a Brief of Argument in which he set the following as the issues for determination as distilled from the grounds:
1. Whether or not in view of the evidence adduced by the Appellant before the trial Court there was a prima facie case requiring some explanation from the respondents.
2. Whether the learned trial court was right in upholding the no case submission of the Respondents thus discharging and acquitting them.
The learned counsel argued that there was evidence that the 2nd respondent took the 1st respondent and members of Land Acquisition Committee of the Association to his land at Eneobong, Calabar which evidence the learned trial judge failed to consider. He submitted that the effect of the 2nd respondent dealing with the Association through 1st respondent was in law and in fact that the 2nd respondent was dealing directly with the Association and that amounted to conspiracy. He submitted that it is the subsequent conduct of the parties to a crime that will lead to the inference of conspiracy, citing Abacha vs. The State (2001) 3 NWLR (Pt. 699) 35, he submitted that conspiracy can be proved by drawing inferences from proven facts. He submitted that evidence abound in the instant case to show that the respondents acted in concert and agreed to commit the offences alleged against them. He stated that it was the 1st respondent that took the Association to 2nd respondent when there were no title documents to show for the money obtained by the respondents. He cited Patrick Ikemson vs. The State (1989) 6 SCNJ 54 at 70.
The appellant’s counsel stated that the learned trial judge failed to consider the material evidence before him especially exhibits tendered as well as the fact that the 2nd respondent represented to the Association that he had land at Eneobong, Calabar to sell to the Association which representation was false to 2nd respondent’s knowledge. He submitted that the learned trial judge failed to consider the definition of stealing in Section 383 (2) (f) of Criminal Code before concluding that there was no prima facie case. He submitted that there was sufficient, credible, admissible and admitted evidence that the two respondents had a case to answer for the sum of N6.2m, the money of the Association, part of which the 2nd respondent had paid. He argued that by the documents he presented, the 2nd respondent knew that he had no land to transfer, but took the money with criminal intent.
The learned counsel submitted that no land was allocated to the Association as what the 1st respondent told the Association was false and with intention to collect money from them fraudulently, citing Ijuaka vs. C.O.P (1976) 10 NSCC 285; Okonofua vs. The state (1981) 1 NCR 145.
He urged court to allow this appeal and set aside the ruling of the lower court.
Learned counsel to 1st respondent Essien H. Andrew Esq. in his own Brief of Argument stated the issue for determination to be:
Whether the trial judge was right to discharge and acquit the 1st respondent on the no case submission made at the close of the prosecution’s case.
He agreed that conspiracy can be established from the conduct of the parties but argued that the appellant has not shown how the 1st respondent’s conduct has shown that he conspired with 2nd respondent to steal the N6.2 million involved in this case. On the count of stealing, the learned counsel stated that the prosecution must establish that the 1st respondent took and converted to his own use or the use of 2nd respondent the N6.2m allegedly stolen, and that the 1st respondent took the money fraudulently even though he may have intended to return it to the Association afterwards. He referred to Section 383 (2) (f) Criminal Code.
He quoted portions of the evidence of PW3 and asserted as follows at pages 6-7 of the Brief:
“1.6 Since in the evidence adduced at the close of the prosecution’s case the appellant did not establish that the 1st respondent took MOSPADAN’S money, there is really no need to consider whether the money was taken fraudulently or not. Nevertheless, we submit that all the prosecution witnesses have confirmed that the money paid to the 2nd respondent was for the purchase of a land meant for the use of the association.”
In his further argument on page 7, the learned counsel stated that:
“In effect the 2nd respondent had actually transferred land to MOSPADAN though there were mistakes in the name of association as written on the allocation paper and survey plan. That mistake was in no way attributable to the 1st respondent because he was not the person that made or procured the documents. There is no doubt that MOSPADAN is not satisfied with the land they got. It is even probable that government may not have allowed them to use the land for the purpose they had intended. But these do not detract from the fact that the evidence at the close of the prosecution’s case was that MOSPADAN actually got the land they had paid for.”
The learned counsel submitted that there was no proof of fraudulent intent, so the allegation of stealing had not been established by the appellant.
On the elements of the offence of obtaining money under false pretence the 1st respondent’s counsel cited Ede vs. Federal Republic of Nigeria (2001) FWLR (Pt. 81) 1834 at 1841 and argued that the testimony of the prosecution witnesses in the instant case was that the 1st respondent told MOSPADAN that the land was owned by Federal Government while the charge was that 1st respondent said the land was owned by 2nd respondent meaning that the charge was not supported by the evidence.
He cited Ede vs. Federal Republic of Nigeria (2001) FWLR (Pt.81) 1834 and Nwokedi vs. C.O.P. (1977)3 SG 20, and submitted that it has to be proved that the representation allegedly made was irrefutably false.
The learned counsel said the 2nd respondent transferred land to MOSPADAN though there were mistakes in the name of the association as written on the allocation paper and survey plan but since it was not the 1st respondent that procured or made the documents, the mistake could not be attributed to him. He submitted that the appellant failed to establish any fraudulent intent on the part of the 1st respondent as required in an allegation of stealing, citing Babatola vs. State (1989) 4 NWLR 264 at 288. He submitted that evidence in this case did not establish the offences alleged and that on Chianugo vs. State (2001) FWLR (pt. 74) 242, the ruling of the lower court was correct and should not be disturbed.
He argued that the burden of proving the three counts rests on appellant who presented a weak case against the 1st respondent. He stated that the trial court was entitled to look at the proof of evidence that accompanied the information filed in the case and he quoted extensively the content of that proof of evidence and concluded that the 1st respondent was very transparent in his dealings with the 2nd respondent over the land transaction’ on the allegation of stealing, the learned counsel stated at page 6 of the Brief that:
“1.5. On the physical element of the offence it is not in doubt that the money allegedly stolen was paid by MOSPADAN to he 2nd respondent.”
He submitted that evidence in this case did not establish the offences alleged and that on Chianugo vs. state (2001) FWLR (pt.74) 242, the ruling of the lower court was correct and should not be disturbed.
He urged this court to dismiss this appeal.
Learned counsel to 2nd respondent, N. O. Amah Esq. in his own Brief of Argument adopted the issue formulated by counsel to the 1st respondent in his Brief’ He argued that the 2nd respondent was dealing directly with the Association and that the Association itself was part of the conspiracy by inference. He submitted that in the face of the evidence in this case the allegation of obtaining money by false pretence and stealing cannot stand, citing Onwudiwe vs. F.R.N. (2006) All FWLR (pt.319) 774. He said that as far as the allegation of conspiracy is concerned, the lower court was right in its ruling and urged this court to uphold it.
He argued further that the allegations of stealing and obtaining by false pretence were also not established because it was not shown that there was any pretence by 2nd respondent which was false to his knowledge or that he intended to defraud the association by inducing it to pay money to him. The learned counsel stated that evidence on record has shown that the 2nd respondent had no intention to permanently deprive the Association of its money because as soon as there was complaint, he paid the money back to the association.
He urged this court to uphold the no case submission and dismiss this appeal.
In my view the issue in this appeal is whether the learned trial judge properly considered the respondents’ no case submission and arrived at a just decision.
At the end of the evidence of the prosecution in a criminal trial, the accused person is entitled to take benefit of Section 286 of Criminal Procedure Act, cap. 41 Laws of the Federation of Nigeria, 2004 that:
“If at the close of the evidence in support of the charge, it appears to the court that a case is not made out against the defendant sufficiently to require him to make a defence, the court shall, as to
that particular charge discharge him.”
The above provision is the legal basis for a no case submission. It means that where there has not been any evidence to establish the essential ingredients of the alleged offence, or the evidence of the prosecution has become manifestly unreliable after cross examination that it cannot reasonably be basis for conviction; the respondents should be discharged without being called upon for a defence. See: Fidelis Ubanatu vs. G.O.P (2000)1 SC 31. If on the other hand evidence exists on the record sufficient enough to infer the connection of the accused with the Commission of the alleged crime, and suggest his guilt unless he makes an explanation, the no case submission stands misplaced and must fail:
Tongo vs. C.O.P (2007 All FWLR (pt. 376) 636; Mohammed vs. state (2007) All FWLR (Pt. 366) 668.
As the decision of a no case submission is to be based on evidence admitted on record of proceedings I now refer to the evidence of the prosecution witnesses in the instant appeal.
The evidence of the PW1 and PW2 who were themselves members of the Association was that it was the 1st respondent who informed the Association that he had found land for the sum of N6 million and other expenses to procure the title deeds including Certificate of Occupancy. The 1st respondent collected a total of N6.2m between July and August, 2004 from the Association for the purpose of that land. The 1st respondent did not produce any land or document until the Association mounted pressure and the 1st respondent then tendered documents that did not bear the name of the Association while there was no accurate description of the land. The 1st respondent produced also evidence that the whole of the N6.2m was paid to the 2nd respondent who was to make land available to the Association. When Police was invited, 2nd respondent did not deny the receipt of that N6.2m but rather opted to refund the money. All through the transaction 1st respondent did not introduce the 2nd respondent to the Association; he only did so when the Association demanded for their money when apparently there was no land. The 1st respondent presented the 2nd respondent as an agent of the Federal Government. Under cross examination on page 34 of the record, the PW1-Cyprian Chukwuma said inter alia:
“I was a member of the committee set up to investigate whether land had infact been acquired for the Association. No land was presented to us.
The problem is that as we stand no land has been allocated to our Association by Federal Government of Nigeria.”
The evidence of the pw2, Francis Mkpa-Oro, a retired ASP who investigated the case is quite illuminating. At pages 4041 of the Record, he stated thus:
“I discovered that the Association was looking for land between June-September, 2004 but the letter of allocation bore a 2002 date. The name on the receipt of payment was MOTOR & MOTORCYCLE SPARE PARTS DEALERS ASSOCIATION OF NIGERIA, GALABAR while the name on the 2002 allocation was MOSPADAN GROUP MARKETERS. The three addresses on the receipts cannot be traced till now. I called on the 2nd accused to lead me to the addresses but he would not do so. 1st accused was chairman of the Association and was a good friend of 2nd accused before the incident. They knew themselves in 1992. 1st respondent presented the 2nd accused to the Association first as an employee of Federal Ministry of works and not as a land agent. The Federal Government land where the allocations relate is for residential and not for commercial purpose. All the money went from the Association to the 1st respondent who paid 2nd accused. All the land documents were given to 1st accused who took them to the Association. N6.2 million was collected from the Association.”
Under cross examination at page 42, pW2 said:
“….Actually a plot of land was allocation (sic) to MOSPADAN to build a chemist or supermarket to service the area and not for a market. Exhibit 3 relates to that piece of land. No land was allocated to the Association but to MOSPADAN.
The PW4, Tony Umeh, also a member of the Association said thus at page 44 of the Record:
“. . . . .. ..1n June 2004, 1st accused informed the meeting that he has found land of Federal Government in calabar Municipality which the Federal Ministry of works had agreed to give us certificate of occupancy. That the land will accommodate 1000 stores, Banks, loading and off loading space, Restaurant. That the land is 2 Hectares…” And at page 45 that “…… 1st accused finally took documents to the committee where it was discovered that the documents bore the name of MOSPADAN GROUP of Marketers and not the name of our Association. The area of land was changed from acre to Hectare.”
The offence of conspiracy is committed when two or more persons agree to effect an unlawful act or to use an unlawful means to carryout an act that is ordinarily lawful. See Majekodunmi vs. R (1952) 14 WACA 64; Oduneye vs. The State (2001) 1 SC (Pt. 1)1. Conspiracy can be inferred from the conduct of the accused.

The ingredients of the other two allegations viz stealing and obtaining by false pretence were well explained by the supreme court in the case of Onwudiwe vs. F.R.N. (2006) All FWLR (Pt. 319) 774 wherein Niki Tobi JSC after setting down the provisions of Section 383 (1) and (2) of the Criminal Code Act (in pari materia with the Criminal Code Law under which the instant case was charged) stated at page 810 that:
“….. It is not the meaning of section 383 (2) that all the sub-items in Section.
393 (2) must be present before an offence of stealing is committed. This is clear from the following opening words of Section 383 (2): “If he does so with any of the followings
intents”. It is therefore sufficient to establish the offence of stealing where the accused person has fraudulently taken money (capable of being stolen) or has fraudulently converted it to his own use or to the use of another person especially where there is evidence on record that the accused had either the intention permanently to deprive the owner of its use or (in case of the money as in the
instant case) an intention to use it at the will of the person who takes or convert it, although he may intend afterwards to repay the amount to the owner.”
At page 912 of the same judgment, the Learned Justice of supreme court affirmed his earlier decision in Alake vs. The state (1991) 7 NWLR (Pt.205) 567 at 591 that the following are the ingredients to be established by the prosecution in an allegation of obtaining by false pretences under Section 419;
(1) that there is a pretence; (2) that the pretence emanated from the accused person; (3) that it was false; (a) that the accused person knew of its falsity; (5) that there was an intention to defraud; (6) that the thing is capable of being stolen; (7) that the accused person induced the owner to transfer his whole interest in the property.
The summary of the evidence of the witnesses in the instant case, is that the 1st respondent who was chairman of the Association informed the members that he had found somebody who had a parcel of land which was adequate for the purpose of building a market of International standard as required by the Association and with that representation he obtained a sum of N6.2 million but did not present the land until the Association reported to police; it was at that stage that the 1st respondent claimed that he paid the N6.2m to the 2nd respondent apparently for the same purpose of procuring and transferring land to the Association. The 2nd respondent admitted collecting the money from the 1st respondent but amazingly none of the 1st and 2nd respondents transferred any land of two hectares or delivered to the association any valid document of title in respect of the land. The 2nd respondent opted to refund the money installmentally as if it was a loan given to him by the Association.
The evidence on record in the instant case and the circumstances thereof raise at least a prima facie case and issues that require explanation from the respondents on all the courts in the charge against them, and indeed the argument of the two learned counsel for the respondents are full of these explanations. Where a prima facie case is established, as in this case under appeal, a no case submission must crumble and cannot be upheld. I hold that the learned trial judge was wrong to have upheld the no case submission of the respondents, taking into consideration the evidence on record.
In conclusion this appeal succeeds and it is allowed. The ruling of the lower court delivered on 15th July, 2008 is set aside and the case is remitted to the Chief Judge of Cross River State for assignment to another judge in the State for trial.

KUMAI BAYANG AKAAHS, J.C.A I had a preview of the judgment of my learned brother, Akeju, JCA, which I read in draft. I agree that the learned trial Judge was wrong to have upheld the submission of no case to answer made on behalf of the accused since the prosecution had established a prima facie case against the accused requiring an explanation from them. Consequently the appeal is allowed and the ruling of the learned trial Judge is consequently set aside. I abide by the order of retrial by another Judge.

MASSOUD ABDULRAHMAN OREDOLA, J.C.A I have had the privilege of reading before now and in draft, the lead judgment just delivered by my learned brother, Akeju, JCA. I agree entirely with his lucid reasoning and conclusion reached therein.
I am satisfied that the submission of no case to answer made by the respondents was wrongly upheld by the lower court. I am also of the firm viewpoint that the appeal has merit and should be allowed by me. It is accordingly allowed. I abide by the consequential orders made in the said lead judgment of my learned brother, Akeju, JCA.

Appearances

P.S. Bisong Esq. (Deputy Director) Ministry of Justice, CalabarFor Appellant

AND

Essien H. Andrew Esq,
N. O. Amah Esq.For Respondent