Gabriel Tayo Aituma & Anor. V. The State (2006)
LawGlobal-Hub Lead Judgment Report
ZAINAB A. BULKACHUWA, J.C.A.
The two Appellants were arraigned before the High Court of Edo state Benin Coram Omorodion J. on the 31/1/1997 on information which set out the charges as follows: –
COUNT ONE: –
Conspiracy punishable under Section 516 of the Criminal code Cap. 48 Vol.II of the Laws of Bendel State 1976 applicable to Edo State.
COUNT TWO: –
Forgery punishable under Section 467 of the Criminal Code Cap. 48 Vol. II of the Laws of Bendel State 1976 applicable to Edo State.
They both pleaded not guilty to the two charges and O. V. Ilebude of counsel for the 1st accused/1st appellant holding brief for Afolabi learned counsel for the 2nd accused respondent applied that the bail of the two accused persons continues, which application was granted. There after trial commenced and the prosecution called 2 witnesses and tendered 9 Exhibits; and closed its case. The respective counsel for the two accused persons addressed the court and made a no case submission, submitting that the prosecution had not made out a case against the accused person urging the trial court to discharge them accordingly. The court in a considered ruling delivered on 29/7/98 overruled the no case submission of the two accused persons and called on them to enter their defence to the charges.
The accused persons dissatisfied appealed to this court against the ruling vide notices of appeal separately filed by each of the accused person/Appellant.
Parties filed and exchanged their respective briefs.
In the 1st Appellant’s brief he identified this issue from the sole ground of appeal.
“Having regards to the evidence presented in court by the prosecution whether the learned trial judge rightly overruled the no case submission made on behalf of the Appellant.”
Similarly the 2nd Appellant identified one issue from the sole ground of appeal he filed which is;
“Whether the learned trial judge was right to have held that the 2nd Accused Douglas Ijeh had a case to answer.”
The Respondent in his brief of argument settled by Omozeghian of counsel in the Director of Public Prosecution’s Office Ministry of Justice Edo State and deemed filed by this Court on the 20/3/2005 identified this issue;
“Whether having regard to the evidence adduced by the prosecution in this case, a prima facie case was not made out against the appellant.”
All the issues identified above are similar, in the determination of this appeal, I will adopt the issue raised by the 1st Appellant.
It is appropriate at this stage to state the facts giving rise to this appeal.
On the 7th of February 1994, Union Bank of Nigeria PLC applied to the Director General Ministry of Lands and Survey Edo State, for consent to sell the properties mortgaged to the Bank by Olori Motors and Company Limited. On recommendation of the Ministry for sale of the mortgaged property the then Military Administrator gave his approval on the 5th of September, 1994. The letter of consent was issued on 8/9/1994 and it was signed for and collected by Ijeh the 2nd appellant on behalf of the bank.
On the 9/9/94 the 2nd appellant and the Bank’s auctioneer went to Mrs. Aihie (PW2) the Schedule Officer in the Ministry of Lands and Survey Edo State and requested her to change the dates on the consent letter dated 8/9/1994 from September 1994 to February 1994. the PW2 refused to do so.
She then gave the files to her messenger (PW1) to put them away. On 12/9/1994 when the (PW2) went to her office; her messenger the (PW1) informed her that the 3 files in respect of the consent application were missing. They searched for the files but could not find them.
On the 23/9/1994, the 1st appellant, a staff of the Ministry, called the (PW1) and handed over the files to him. The PW1 then took the files to the PW2 and when she examined them she discovered that all the dates in them had been altered. She then reported the matter to the Director of Lands, who subsequently reported to the Police and after investigations the 2 accused persons were arraigned before the court on the charges earlier shown in this judgment. Two witnesses were called by the prosecution, the schedule officer in the Ministry of Lands and Survey and a colleague to the 1st appellant and her messenger. 9 Exhibits were tendered through the PW 2. After series of adjournments the prosecution closed their case. The defence put up a no-case submission which was overruled by the trial court and the accused persons were asked to defend the charges. It is against this decision that the two accused persons appealed to this court.
As shown earlier in this judgment each of the parties to this appeal raised one issue, and I have indicated that this appeal will be determined on the issue raised by the 1st Appellant.
The 1st Appellant on the issue raised, contends that the condition on which a no case submission can be upheld are;
(3) When there has been no evidence to prove an essential element in the alleged offence; or
(4) Even when evidence has been adduced on the essential elements, the evidence has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it.
He points out that evidence is said to disclose a prima facie case when it is such that if un-contradicted and if believed is sufficient to prove the case against an accused person. That in the instant case, evidence on record led by the prosecution even if believed and un-contradicted is not enough to prove the charge against the 1st accused/appellant as the essential elements of the offence have not been made out for the following reasons;
(1) The I.P.O. (Investigation Police Officer) did not testify as to the nature of the investigation he carried out, nor did he testify in spite of the several adjournments granted by the court at the instance of the prosecution.
(2) A hand writing expert did not testify as to whether the signature on the alleged document is that of either of the two accused persons/appellants.
(3) The PW1 testified that the 1st accused/appellant has the right to call for files but did call for these particular files.
The 1st appellant further submits that all the essential ingredients required to prove forgery which is the substantive offence against the appellant have not been proved by the prosecution. Submitting that since the essential elements of the substantive offence have not been proved, the subsidiary charge of conspiracy cannot also stand and urged us to allow the appeal.
The 2nd appellant in his brief of argument submits that the no case submission made on his behalf ought to have been up held as the comparison of the hand writing of the 2nd accused with the disputed writing was never in evidence to show that he had access to the document said to have been altered.
He contends that the 2nd appellant was not an employee of the Ministry of Lands and Survey and there was no evidence to show that he had access to the document said to have been altered. That the prosecution having failed to adduced evidence linking the 2nd appellant with the alleged offences, the trial court ought to have up held the no case submission made and urged us to allow the appeal and up hold the no case submission.
The respondent submits that the totality of the evidence adduced by the prosecution at the trial, disclosed a prima facie case against the appellants, as the elements of the offences charged were established. Pointing out that the fact that the police and the hand writing expert failed to testify in court is insufficient to say that a prima facie case has not been made out against the appellant and the learned trial judge was right to have overruled the no case submission and urged us to dismiss the appeal as lacking in merit.
Sections 286 and 287(1) of the Criminal Procedure Act Cap. 80 LFN 1990 provides as follows;
“(286) If at the close of 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.
287(1) At the close of the evidence in support of the charge if it appears to the court that a prima facie case is made out against the defendant sufficiently to require him to make a defence the court shall call upon him for his defence…”
There however, exists no other provision in the Criminal Procedure Act (Supra) as regards the conditions to which a defendant can succeed on a no-case submission. It is the Nigerian Courts that have over the years laid down the principles under which a no case submission can successfully be raised and up held. See Ibeziako vs. Commissioner of Police 1963 1 ALL NLR 61 at 68 – 69 Per Ademola CJF.
“A submission that there is no case to answer may properly be made and up held;
(a) When there has been no evidence to prove an essential element 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.
Apart from these two situations a tribunal should not in general be called upon to reach a decision as to conviction or acquittal until the whole of the evidence which either side wishes to tender has been placed before it. If, however, a submission is made that there is no case to answer, the decision should depend not so much on whether the adjudicating tribunal (if compelled to do so) would at that stage convict or acquit but on whether the evidence is such that a reasonable tribunal might convict on the evidence so far laid before it, there is a case to answer.”
See also Daboh vs. the State (1997) 5 SC 197 at 209 – 211
Per Sir Udo Udoma, JSC.
“…It is perhaps expedient here to observe that it is a well known rule of criminal practice, that in a criminal trial at the close of the case for the prosecution, a submission of no prima facie case to answer made on behalf of an accused person postulates one or two things, or both of them at once.
Firstly, such a submission postulates that there has been throughout the trial no legally admissible evidence at all against the accused person on behalf of whom the submission has been made linking him in any way with the commission of the offence with which he had been charged, which would necessitate his being called upon for his defence.
Secondly,…that whatever evidence there was which might have linked the accused person with the offence has been so discredited that no reasonable court can be called upon to act on it as establishing criminal guilt in the accused person concerned.
Therefore, when a submission of no case is made on behalf of an accused person, the trial court is not thereby called upon at that stage to express any opinion on the evidence before it. The court is only called upon to take note and to rule accordingly that there is before the court no legally admissible evidence linking the accused person with the commission of the offence with which he is charged. If the submission is based on discredited evidence, such discredit must be apparent on the face of the record. If such is not the case, then the submission is bound to fail.”
See also Okoro vs. The State (No.2) (1988) 5 NWLR (PT. 94) 255;
Emedo vs. State (2002) 15 NWLR (PT. 789) 196;
Ubanatu vs. Commissioner of Police (2000) 2 NWLR (PT .643) 115;
Ajidagba vs. Inspector-General of Police (1958) SCNLR 60.
From the cases cited above, for an accused person to succeed on a no-case submission he has to show that one or all the ingredients of the offence he has been charged with had not been established from the totality of the evidence adduced. The other condition that the evidence adduced is manifestly unreliable or had been discredited by cross-examination that no reasonable court may reasonably convict on it, may be more difficult to establish, this is because at that stage when the court is called upon to decide only the evidence adduced by the prosecution is on the imaginary scale of justice. The accused person has not established his defence at that stage. Justice demands that the other party be heard and cross-examined for a just decision by the court.
In the instant appeal the appellants were arraigned before the lower court on a charge of two counts. The 1st is for conspiracy contrary to Section 516 of the Criminal Code and the 2nd count is for forgery contrary to and punishable under Section 467 of the Criminal code.
In all the prosecution called 2 witnesses. The PW1 is a messenger in the Ministry of Lands and Survey and works under the PW 2 and the 1st appellant. In her testimony the PW 2 (who is a Schedule Officer in the Ministry) stated that the 2nd Appellant a banker came to her officer with an auctioneer and asked her to alter the dates in the tendered documents Exhibits P1 – P9. She refused. The auctioneer commented that if the 1st appellant were present he would have altered the documents. PW2 later saw the 1st appellant and warned him not to temper with the documents and also asked the PW1 to put away the files containing the documents. The next day the PW1 reported to the PW2 that the files were missing and could not be found. Two weeks later the PW1 told the PW2 that the missing files were given to him by the 1st appellant who asked him to put them away. On looking at the file she discovered that some of the dates and signatures had been altered and mutilated. She reported to their boss who called a Board Meeting of the Ministry where the 1st appellant admitted to altering the dates. This was the evidence adduced by the prosecution.
Before a prima facie case can be made by the prosecution on the two charges the appellants were arraigned before the lower court, the prosecution must adduced evidence in support of the following ingredients.
On a charge of conspiracy the prosecution must prove the following elements of the offence.
(a) An agreement by two or more persons to execute an agreed act.
(b) The agreed act is unlawful.
On a charge of forgery it is essential to prove that the accused person forged the document in question.
From the evidence adduced the dates as entered by the Governor, the Director General and the Director of Lands Edo State were mutilated and changed in Exhibits P1, P2, P3, P4, P5 and P6. Similarly in Exhibits P7, P8 and P9 the dates were changed from February 1994 to September, 1994. Was there, however, evidence to show that the two accused persons conspired to change the dates and mutilate the documents? Or that it was the first appellant who altered the dates on the said documents.
The main offence of forgery must first be sustained before that of conspiracy.
Even though the documents as tendered by the prosecution showed that they were mutilated and the dates changed to give legitimacy to the auction of the mortgaged property which were sold by the bank before the date the Governor gave the approval for the sale of the property, the evidence as adduced was not conclusive that it was in fact the 1st appellant who effected the changes in the said documents.
On a charge of forgery the prosecution to make out a prima facie case needs to call a hand writing analyst to show that the hand writing of the person who is alleged to have forged the documents is the same as the one on the forged documents where the supposed alteration was made.
Furthermore the person whose hand writing is forged is a material witness.
See Alake vs. State (1992) 9 NWLR (Pt.265) 260 at 270 where Kutigi, JSC said;
“I ought to add that I agree with Prof. Kasunmu that Ajadi and Lawsweerde were vital and material witnesses in the case. They were persons whose signatures were alleged to have been forged. I think failure to call them to deny or confirm their signatures on the cheques was clearly fatal to the case of the prosecution, the evidence of hand writing analyst (PW6) not withstanding. Their evidence would have settled the point in issue once and for all (See R. Vs. KUREE WACA 175; WAMBAL & ANOR. VS. KANO N.A. (1965) NMLR 15). Appellants’ conviction for forgery can therefore not stand.”
In this case only two witnesses testified, the Investigating Police Officer (I.P.O.), the hand writing analyst and the persons whose writings were mutilated and changed were not called as witnesses. In the testimony of the PW2 she said the 1st appellant confessed before the board meeting of the Lands Ministry yet neither the Director who headed the Board Meeting or any of the members who was present at the meeting was called as a witness before the lower court.
In effect a prima facie case was said to have been made out against the appellants on the testimony of the PW2.
See ruling of lower court at page 54 of the records, where the learned trial judge held;
“This case is strange. There was no investigation made. The matter was never investigated. However, evidence of PW2 Mrs Osaro Grace Aihie is very clear. She said that the 1st accused even admitted before the meeting of senior staff that he altered the date. PW 2 also said that, it was 2nd accused and the auctioneer who came to her asking for the date to be changed from September to February.
The auctioneer later asked for the 1st accused and the auctioneer told her that, if he was around he could help him change the date. Evidence of this witness is sufficient. In my view for me to call upon the accused persons to defend themselves.”
Here the analogy of the PW2 and the court is that since the auctioneer had asked the PW2 to alter the dates for him and on her refusal, the auctioneer said if the 1st appellant was there he could have altered the dates, and the dates were later found to have been altered the conclusion is that it must have been the 1st appellant who made the alterations in the document.
A criminal trial is, however, not based on analogies. Before a prima facie case can be said to be made against an accused person the essential elements of the offence must be established against him. There must be no doubt in the mind of the court that all the facts point to only one conclusion that it was only the accused who committed the offence charged. Where there is doubt at all then it must be resolved in favour of the accused person.
In the instant case, the failure of the prosecution to call the Investigating Police Officer and the hand writing analyst on a forgery charged is fatal to its case.
See Alake vs State (supra);
Oshodin vs. State (2001) 12 NWLR (PT.726) 217.
The presumption being that if the said witnesses were there, their testimony would have been favourable to the accused persons. No prima facie case has thus been established on the 2nd charge.
On the 1st charge, I am also of the view that a prima facie case has not been established by the prosecution that the two accused persons/appellants conspired to commit an act of forgery as no common intention was shown.
The testimony of the PW2 mostly pertains to the 1st appellant. There is nothing to show that the 2nd appellant was an employee of the Ministry of Lands and Survey Benin, or he had access to the documents forged, or that his hand writing was on the documents. In short the prosecution did not adduce any evidence to link the 2nd appellant with the alleged forgery.
On a charge of conspiracy the prosecution must establish that the persons charged had formed a common intention of committing an unlawful act. The testimony of the PW2 linking the 2nd appellant to the 1st appellant is not sufficient to sustain a charge of conspiracy. The elements of the offence have also not been established before the lower court.
On the whole, I am of the view that on the facts and evidence adduced before the lower court a prima facie case of forgery and conspiracy has not been established against the two appellants. Theirs is a proper situation where a no-case submission could be made and upheld by the lower court as the essential elements of the offences charged had not been established.
I, in the circumstances, allow the appeal. I set aside the ruling of Omorodion J. (of blessed memory) delivered on the 29/7/98 calling on the two appellants to enter their defence. I uphold their no case submission and accordingly discharge them of the two charges.
Other Citations: (2006)LCN/1937(CA)
