Commissioner of Police V. Michael Uzoagba & Anor (2009)
LawGlobal-Hub Lead Judgment Report
MARY U. PETER-ODILI, J.C.A
This is an appeal against the Judgment of the High Court of Justice, Appellate Division, Federal Capital Territory, Abuja Coram: Hon. Justice I.U. Bello (Presiding), Hon. Justice M. Balami delivered on 23rd October, 2007. The Appellant was the Respondent in the Court below while the Respondents herein were the Appellants. In its judgment, the High Court sitting in its Appellate jurisdiction entered judgment in favour of the Respondents by:
(1) Holding that the transaction between the parties and PW1, is purely a tenancy matter.
(2) Upholding the no case submission of the Respondents, counsel allowing the Appeal and discharging Respondents. Being dissatisfied with the whole judgment in favour of the Respondents, the Appellant filed this Notice of Appeal on 27th December, 2007.
STATEMENT OF FACTS:
By First information Report dated 24th September, 2007, the 1st and 2nd Respondents were charged with the offences of criminal breach of trust and cheating contrary to Sections 312 and 322 of the Penal Code Law, Cap. 89 LFN 1990 in the Magistrate Court, Jabi presided over by His Worship Mrs., Omolola T. Oladipo.
During the course of the trial, the Respondents objected to the admissibility of the confessional statement purportedly made by them. The trial Magistrate gave a ruling on the 24th day of August 2007 overruling the objection of the Respondent’s counsel.
The prosecution in proof of his case called three witnesses and tendered 4 exhibits, UZ1 – UZ4 ie Statement of PW2, receipt issued and the Statements of the two accused persons and thereafter closed their case. The defence made a no case submission. By a ruling delivered on the 24th day of September 2007, the trial Magistrate held that the prosecution had established a prima facie case against the Respondents.
Being dissatisfied with the ruling of 24th September 2007, the Respondents filed an appeal to the High Court FCT, Abuja in its appellate jurisdiction and on the 23rd October 2007 the High court gave judgment in favour of the Respondent and against the Appellant and it is against that decision the Appellant has now appealed to this Court on a Notice of Appeal of two grounds which I shall quote hereunder without the particulars viz:-
GROUND ONE:
The learned Judges of the High Court sitting in Appellate Division erred in law when they held that the transaction between the accused persons/Respondents and PW1 and PW2 was purely a tenancy matter, and civil in nature when the elements of Criminal Breach of Trust and Cheating contrary to Sections 312 and 322 of the Penal Code was proved.
GROUND TWO:
The learned Judges of the High court sitting in appellate division erred in law when they upheld the no case submission of the Accused persons/Respondents when there was sufficient evidence adduced supporting the charge of Criminal Breach of Trust and Cheating.
On the 8/10/2009, date of hearing Mr. Ologunorisa learned counsel for the Appellant adopted their brief filed on 16/7/08 and also their Reply Brief of 28/5/09. In the Appellants Brief were formulated two issues for determination which are:-
- Whether having regard to the evidence led by the prosecution in this case the Lower Court was right when it held that the transaction between the Parties was purely a tenancy matter and civil in nature.
- Whether the learned Judges of the High Court sitting in Appellate Division erred in law when they upheld the no case submission of the Respondents when there was a prima facie case made out against the Respondents.
Learned counsel for the Respondents, Mr. Zibiri adopted their Brief filed on 6/4/09 and deemed filed on 18/5/09. In the Brief, the Respondents couched a single issue for determination which is:-
Whether from the evidence adduced a prima facie case of Criminal Breach of Trust and Cheating has been established against the Respondents.
I am going to use the issue as framed by the Respondents since that sole issue covers the dispute in this appeal.
SOLE ISSUE:
Whether from the evidence adduced, a prima facie case of Criminal Breach of Trust and Cheating has been established against the Respondents.
Learned Counsel for the Appellant submitted that the High Court sitting in Appellate Division erred in law when they held that the transaction was a tenancy matter. That in the instant case, although the original transaction was that of tenancy and payment of rent, elements of criminal intention were introduced into the transaction which necessitated the charge of Criminal Breach of Trust and Cheating.
That the breach of the contractual tenancy agreement occasioned criminality because of the conduct of the Respondents and that PW1 and PW2 had admitted in their testimonies that money was paid and they issued a receipt for a public toilet instead of a shop by the Respondent who promised to get the original receipt from the landlord and his lawyer which did not take place. That PW1and PW2 did not take possession of the shop till January when they discovered the shop was double locked by somebody else. Learned counsel referred to Section 16 of the Penal Code for the definition of ‘Dishonestly’, also Sections 311, 322, 320 of the same Penal Code.
Mr. Ologunorisa for the appellant contended that the intention of dishonesty is presumed from the consequences of the act of the Respondents who are presumed to intend the natural consequences of their act. That in determining whether a prima facie case was made out against the accused person or not, recourse must be made to the proofs of evidence filed in support of the information charging the accused of any offence or offences. He cited Aminu v. State (2005) All FWLRÂ Â (pt.224) 936.
He stated on that a prima facie case of criminal breach of Trust and Cheating was made out against the Respondents from the evidence of PW1 and PW2 from which the imputation of criminal intent was found. This is as a result of the fact that there existed an underlying dispute between the original owner and the Respondents which dispute prevented PW1 and PW2 from taking possession of the shop. That these are questions that needed answers from the Respondents before a full decision or conclusion can be made by the court. He cited Ubantu v. COP (2000) FWLR (pt. 1) 138; Ajidagba v. I.G. P. (1958) 3 FSC 5; Duru v. Nwosu (1989) 1 NWLR (pt. 113) 24; Ibeziako v. COP (1963) 1 SCNLR 99.
In response, learned counsel for the Respondents contended that the two grounds of appeal filed by the Appellant are not grounds of law but those of mixed law and facts and there was need for leave of the High Court or this one before the appeal could be filed. That where grounds of appeal with their particulars are complaining of the failure of the Lower Court to consider the facts placed before it, before arriving at its decision, those complaints are facts or mixed law and facts. That that being the case here, this appeal lacks competence and should be dismissed. He cited Akulola v. COP (1992) NWLR (pt 256) 675.
Also Opiuyo v. Omonuwari (2007) 16 NWLR (pt. 1060) 415 at 430; Nalsa &. Team Associates v. NNPC (1991) NWLR (pt.212) 652 at 666A- B.
Mr. Zibiri further contended that assuming without conceding that this court holds that there is a valid and competent appeal filed that the transaction leading to this appeal between the complainants (PW1 & PW2) and the Respondents is a purely civil matter, which is contractual in nature but not criminal. That for the Appellant to establish the essential elements of the offence of criminal breach of trust as provided for by in Section 312 of the Penal code and Cheating under Section 322 of the same Code, they must show that the Respondents had a dishonest intention when they were receiving the money from the complainants. That all the essential elements of the two offences must be established before the appellant would be said to have made a prima facie case against the Respondents.
He referred to the evidence of the prosecution witnesses and said the criminal intention was not underneath. That all the ingredients of the offences must be proved before it can be said that the accused had a case to answer and where an element is missing the prosecution had failed to establish a prima facie case against the accused person.
He cited Mohammed v. The State (2007) 7 NWLR (pt. 1032) 152 at 161 – 162; Tongo v. COP (2007) 12 NWLR (pt. 1049) 525 at 540 – 541; Ugbakav. State (1994) 8 NWLR (pt. 364) 568 at 583.
In reply on point of law, learned counsel for the Appellant pointed out that Respondents did not file a preliminary objection but merely digressed and lumped what they called an “invitation” with their issues distilled from the grounds of appeal stating that they ought to have sought the leave of court before filing this appeal in a mode unknown to law.
Mr. Ologunorisa said a Respondent intending to rely upon a preliminary objection to hear an appeal is to give three clear days notice to the Appellant setting out grounds of the objection which notice should be filed with 20 copies of the grounds thereof with the registrar within time failing which there would be no notice to canvass. He cited Order 10 Rule 1 of the Court of Appeal Rules, 2007 and Ehinlawo v. Oke (2008) All FWLR(pt. 442) 1007.
The Respondents through counsel went to great pains on the issue of competence of the appeal on the basis that the grounds being of mixed facts and law, leave ought to have been sought and obtained by the Appellant before the appeal would acquire the competence that would clothe this Court with the necessary jurisdiction. That this requirement was not complied with by the Appellant and so this appeal lacks competence and should be dismissed.
Indeed since this appeal is not stemming from a final decision of Court, it is not one that can be brought as of right if the matters are of facts or mixed law and facts. However if the basis of this appeal is one of law simpliciter as the Appellants are positing then leave of Court before inception is not a necessity. That brings up the question of the determination of whether or not a ground of appeal is of law or fact/mixed law and fact. In answer, it is essential to consider together the principal complaint and the particulars of error provided.
This is because where it is an issue of fact or mixed fact and law, leave of either the Court below or this Court of Appeal is a condition precedent which must be fulfilled before the competence of the appeal can be taken to be in place.
In the case in hand where the particulars of error are hanging on the ingredients of the offences of Criminal Breach of Trust and Cheating and whether or not a prima facie case had been made out or not are matters of law, since at this stage there is a limit beyond which the court can go as it cannot delve into the credibility or otherwise of the witnesses nor can it have a balance as to which side is telling the more probable version. I rely on Akinlola v. COP (1992) NWLR (pt.256) 675 at 684 – 685; Opiuyo v. Omonuwari (2007) 16 NWLR (pt. 1060) 415 at 430; NALSA &. TEAM Associates v. NNPC (1991) NWLR (pt. 212) 652 at 666.
The failure to obtain leave of court where necessary to file a particular ground of appeal upon which an issue is raised for resolution of a case renders both such ground of appeal and the issue so formulated therefrom incompetent. Where an appeal can only be lodged with the leave of the court, it is the leave that confers jurisdiction on the court and it is very vital and fundamental that leave must be obtained before an appeal is filed and any appeal filed without leave is incompetent as no jurisdiction can be conferred on the Court. Inyang v. Ebong (2002) 2 NWLR (pt. 751) 284 at 322 (CA); Arowolo v. Adimula (1991) 8 NWLR (pt. 212) 752; Metal Construction Co. Ltd v. Migliore (1990) 2 NWLR (pt.126) 2999; 5haka v. Salihu (1996) 2 NWLR(pt. 428)28; Mosuro v. Akinyele 13 WACA 112; Yakubu v. Governor of Kogi State (1995) 3 NWLR(pt. 383) 367.
The notice of appeal is a very important document because it is the foundation of the appeal and if it is defective, the Court of Appeal has inherent powers to strike it out on the ground that it is incompetent. If all the grounds of appeal are found to be incompetent, the Court of Appeal will lack the competence to adjudicate on the matter as the question of competence is fundamental and crucial to any adjudication. Inyang v. Ebong (2002) 2 NWLR (pt. 751) 284 at 319; Amadi v. Okoli (1977) 7 5C 57; Tukur v. Government of Gongola (1988) 1 NWLR (pt. 68) 39; Odofin v. Agu (1992) 3 NWLR (pt. 229) 350; Kalio v. Kalio (1975) 2 SC15.
Having stated what ought to be where leave is required before an appeal can be said to be properly lodged, it is of essence to consider the propriety or otherwise of this objection on competence of the appeal as propounded by the Respondents and in the manner they did. I know it is trite that an opposition to the jurisdiction of a court can be raised at any point and in any way but some basic principles must be adhered to for such objection to be taken seriously and it is for that I anchor on the authority of my Lord Onnoghen JSC in the case of Ehinlawo v. Oke (2008) All FWLR (pt. 442) P. 1007. The learned Justice held thus:
“Learned counsel for the 3rd Respondent did not raise a preliminary objection against the appeal as known to law. He adopted the issues for determination as formulated by the senior counsel for the appellant, but proceeded to state in paragraph 5.3of the 3rd Respondent’s brief of argument filed on 10 March 2008 as follows:
“however, before we proceed to treat the issues on their merit, it is pertinent to draw the attention of this honourable court to certain deficiencies inherent in the appellant’s case running from his amended notice of appeal to the issues for determination formulated by him and the arguments canvassed thereon”
Learned counsel then proceeded to point out the deficiencies to be the absence of leave to appeal on grounds of facts, mixed law and facts in respect of grounds 1, 2, 3, 4, 5, 6, 7, 8 and 9; formulating issues for determination not arising from the grounds of appeal and thirdly; failure to canvass arguments on some of the issues formulated, without identifying the alleged issued involved. The above mode of raising preliminary objection to an appeal is both novel and unknown to law and is consequently not worthy of any consideration in this judgment.”
Bearing that authority above stated and quoted extensively in mind I am satisfied that this objection of the Respondent on the competence or otherwise of the appeal is an action in futility and is hereby dismissed.
On the issue whether or not a prima facie case was made out for the respondents to be called upon to defend I shall quote firstly the part of the ruling of the learned magistrate at the Court of first instance and that is:
“The court has gone through the evidences adduced by the prosecution and the no case submission made by the defence and it is the view of this court that from the evidence adduced the facts disclosed calls for some explanation which the accused persons have to make. In essence, the court is satisfied that a prima facie case has been established against the accused persons. Hence the court will now go to charge the accused persons for the offence of criminal breach of trust and cheating contrary to Sections 312 and 322 of the penal Code”.
Having stated the Ruling of the Court of first instance and hereunder I shall quote elaborately the findings and conclusion of the High Court on appeal over the ruling of the magistrate and that is:-
“The Hon. Court having closely gone through the case file that contain the Notice of appeal, the grounds, particulars of errors, and the relief sought from the Hon. Court, CTC of the record of proceeding of the Lower Court, the trial Magistrate at Jabi, the annextures exhibits admitted in evidence before the Lower court, the Counsel written briefs having been duly adopted as Counsel Argument in support of the said application and upon listening to the appellant’s Counsel and argument. The Court is in total agreement with the appellant counsel, it is also on record that when PW1 and PW2 approached the appellants for the said shop, the appellants did make it clear to PW1 and PW2 that the said shop does not belong to them, but that it belongs to somebody else and they were acting in the capacity as the Landlord’s agent or the owner of the shop. It is also on record that PW1 and PW2 inspected the said shop saw it vacant before making payment for the shop to the appellants, where they were handed over the keys to the shop, hence, the court is of the view that a contract to let out a shop to PW1 and PW2 by the appellants has been established, in as much as PW1 and PW2 have collected the keys of the shop, they have taken possession of same, and contract has been perfected/executed by the parties, so, the argument that PW1 and PW2 refused to park in the shop unless they see the owner is a non issue, having collected keys to the shop after satisfying themselves that the shop was vacant. PW1 and PW2 where presumed to have taken possession of the shop.
The Hon. Court is also of the view that at that particular time when PW1 and PW2 collected the keys of the shop there was no encumbrance in respect of the said shop, so PW1 and PW2 refusal to move into the shop can rightly be said that they were in possession, and their refusal to move in, it is at their own peril. On the issue that the receipt issued to them bears Equity Venture Nig. Ltd. in respect of the shop the Hon. Court is of the opinion, that it is also a non issue, in as much as it was stated on the face of the receipt, that the receipt issued evidenced payment for the said shop.
The Hon. Court is also of the view that the difference of N10, 000.00 has been explained to pw1 and pw2, to court satisfaction, because the appellants rightly said that N5, 000.00 is for agency fees, and the extra N5,000.00 is for levy. The Hon. Court is also still of the view that from the time pw1 and pw2 paid for the said shop to the time it was demolished there was no evidence that the said shop was let out to any other person, it is also correct to say that pw1 and pw2 did not make any effort to take possession of the shop pw2 did not make any effort to take possession of the shop and was refused, nor there was any report from the Landlord, that the appellants were not his agents, or that the said money N120,000.00 or N130,000.00 was not passed to him. Based on the said foregoing the Hon. Court cannot understand why the Appellants Counsel no case submission should be refused or resisted by the Lower Court. The Hon. Court now held that the transaction between the appellant and pw1 and pw2 is purely a tenancy matter, and civil in nature, at the same time, it is in agreement with the Appellants counsel’s submission, that nothing was produced before the Hon. Court showing that the money paid by pw1 and pw2 for the shop was converted by the appellants to their own use, in light of same, the reliefs sought before the Hon. Court particularly relief (1) set out on the face of the Notice of appeal, that is an order of the Hon. Court upholding the submission of the Appellant counsel is hereby granted, and the position of the law is this, once the said no case submission has been upheld, then the proper order for the Hon. Court to make such circumstances is to discharge the Appellants. The Hon. Court now overruled the objection raised by the Respondent counsel that is by dismissing same and upholding the no case submission of the Appellants counsel, appeal allowed and Accused/Appellants discharged.”
In fact the more considered from the summation of the Appellate High Court and the evidence proffered the more inclined I am of the need to have the version of the respondents stated so that their side of the story and allegations are equally considered and evaluated. What I am trying to put across is that the prosecution threw up questions which deserve answers from the Respondents and that cannot be wished away, That is, clearly a prima facie case was made out as rightly found by the trial magistrate and I see no foundation on which the High court in its appellate jurisdiction could and did rule otherwise. I place reliance on Aminu v. State (2005) All FWLR (pt. 224) 936; Ubantu v. COP (2000) FWLR (pt. 1) 138; Ajidagba v. I.G.P. (1958) 3 FSC 5; Duru v. Nwosu (1989) 1 NWLR (pt 113) 24; Ibeziako v. COP (1963) 1 SCNLR 99.
On the above stated this appeal is meritorious and I allow it I set aside the judgment and orders of the High court of the FCT in its appellate jurisdiction of 23/10/07. This case is to be sent back to the trial Magistrate of Jabi to conclude the proceedings.
Other Citations: (2009)LCN/3461(CA)
