Godwin Chianugo (Alias Godwin Isienei) & Ors V. The State (2001)
LawGlobal-Hub Lead Judgment Report
OGUNTADE, J.C.A.
Before the High Court, Lagos in charge No. Lc D13191, the offences hereunder appearing were brought against the appellants.
STATEMENT OF OFFENCE – 1ST COUNT.
Conspiracy contrary to Section 516 of the Criminal Code
PARTICULARS OF OFFENCE
Godwin Chianugo (Alias) Godwin Isichei (m), Dele Atto (f), Christian Chianugo (m), Anne Uzoma Chianugo (f) and Rose Chianugo (f) between the Month of November, 1988 and January, 1990 in Lagos in the Lagos Judicial Division did conspire together to commit a felony to wit: Stealing.
STATEMENT OF OFFENCE – 2nd COUNT
Stealing contrary to Section 390(9) of the Criminal Code.
PARTICULARS OF OFFENCE
Godwin Chianugo (Alias) Godwin Isichei (m), Dele Atto (f), Christian Chianugo (m), Anne Uzoma Chianugo (f) and Rose Chianugo (f) between the Month of November, 1988 and January 1990 in Lagos in the Lagos Judicial Division stole Art Papers, Newsprint and Label Papers valued N1.5 million, property of  Newbreed Print and Packaging Co. Limited.
On 22/5/91, each of the appellants pleaded not guilty to each of the two counts. The prosecution later opened its case. It called in all five witnesses. At the conclusion of the prosecution’s case, the defence counsel made a no-case submission. The trial Judge, Owobiyi J. overruled the submission. Dissatisfied, the appellants have brought this appeal.
In the appellants’ brief filed, the issues for determination were formulated thus:
(i) Whether having regard to the evidence led by the prosecution, the learned trial Judge was right to reject the no-case submission made by the appellants?.
(ii) Whether the charge was validly made in accordance with S. 152(2) of the CPA as interpreted in R v. Aniemeke (1961) 1 All NLR 43?.
The respondent adopted the issues for determination as formulated by the appellant.
In Ajiboye v. State (1995) 8 NWLR (Pt. 414) 408, the Supreme Court considered the nature of a no case submission and when it can be made. The Supreme Court per Kutigi, J.S.C. at pages 414 – 415 observed thus:
“It is also settled by a chain of authorities that a submission of no-case to answer may be properly made and upheld in the following circumstances as correctly stated by the lower Courts:
- When there has been no evidence to prove an essential element in the alleged offence;
- When the evidence adduced by the prosecution has been so discredited as a result of cross-examination or is so manifestly unreliable that no reasonable tribunal could safely convict on it.
See Ibeziako v. Commissioner of Police (1963) 1 All NLR 61, (1963) 1 SCNLR 99; Ajidagba & Ors v. J. G. P (1958) 3 FSC 5, (1958) SCNLR 60; Okoro v. State (1988) 5 NWLR (Pt. 94) 255; Adeyemi v. The State (1991) 6 NWLR (Pt. 195) 1.
What then is a prima facie case?. In the case of Ajidagba & Ore v. I.G.P (supra) Abbol F.J. said on page 6 of the report thus –
“We have been at some pains to find the definition of the term prima facie case. The term so far as we can find has not been defined either in the English or in the Nigerian Courts.
In an Indian case, however, Sher Singy v. Jitendranathsen (1931) L.R 59 CAL. 275 we find the following dicta:
“What is meant by a prima facie (case)? It only means that, there is a ground for proceeding …. But a prima facie case is not the same thing as proof which comes later when the Court has to find whether the accused is guilty or not guilty (per Grose J) and the “evidence discloses a prima facie case when it is such that if uncontradicted and if believed, it will be sufficient to prove the case against the accused (Per Lord Williams J)”.
As earlier stated in this case, the appellants faced a two – count charge of conspiracy and stealing. At the trial, five witnesses testified for the prosecution. The 1st P.W was Chris Madugbochukwu Okolie.
His evidence in a summary established the following:
- That the 1st and 2nd appellants worked under him in the Newbreed Organization; the 3rd accused is a brother of the 1st; the 4th accused the wife of the 1st and the 5th accused, a sister of the 1st accused.
- On 19/1/90, the 3rd accused told P.W.1 that the 1st accused and some persons were stealing materials belonging to Newbreed Organization.
- The matter was reported to the Police. The 1st accused was in charge of general secretarial duties and liased with employees at the warehouse. Police investigated and found a substantial amount in the account of 1st accused.
The 2nd P.W. was one Sunday Iyamu. His evidence was mainly to the effect that on 14/1/90, the 3rd appellant came to the house of P.W.1 where he (2nd P.W) worked as gate keeper. The 3rd P.W worked under the Newbreed Organization Ltd. He testified that he knew 1st and 2nd appellants as employees of the same Organization.
In 1989, 3rd P.W. discovered that a large quantity of newsprint and art papers were missing from the warehouse. One Mr. Olaka told P.W 3 that the 1st appellant had been selling the papers. P.W.4 testified that he was the cashier under Newbreed Organization. He started work under the Organization on 11/1/90.
The star witness of the prosecution was P.W. 5. He was the investigating Police officer. He obtained statements from the appellants. In the course of his investigation, he discovered that the 1st appellant had sold some papers to some persons and issued them receipts. The receipts were tendered in evidence. The P.W.5 also discovered that the 1st appellant had transactions with his bankers involving the deposit and withdrawal of sums of N200,000.00 and N300,000.00 from his accounts. The 1st appellant had also bought a Volkswagen beetle car with Registration number OY 2931 for his wife the 4th appellant.
At the end of the case for the prosecution, what emerged was that the 1st appellant had lived beyond his means. He had had transactions with his bankers involving amounts that must be considered large having regard to his salary which was N 12,000.00 per annum. He had bought a Volkswagen beetle car for the 4th appellant, his wife. The value of the car was not stated. The 1st appellant did not admit that he stole any properties from Newbreed Organization. None of the other appellants admitted committing the offences.
Now the evidence of P.W.3 at page 61 of the record that:
“Mr. Olaka confirmed that the 1st accused had been selling the papers was hearsay and inadmissible since the statement was not made in the presence of the 1st appellant. Even assuming that the piece of evidence was not hearsay, P.W.1 had while stating the duties of the 1st appellant at page 54 of the record said:
“The 1st accused had been with me for almost 9 years before this incident. He was in charge of the over all secretarial duties liasing with me and the people at the warehouse. We stock Newsprint and other documents. He was in charge of paying salaries to the staff of the warehouse. In fact, he was in charge of the warehouse and the running of it. He was also in charge of bringing buyers to me and used to tell what prices the papers should be sold to the Company. He could collect the money and paid out to the cashier and obtained receipts for the buyers”.
The case of the prosecution as pointed by the testimony of P.W.1 was not that the 1st appellant had not the power and duty to sell the papers. The case the prosecution built was that the 1st appellant sold the papers as he could but did not pay the proceeds to the cofers of the Newbreed Organization. However, no shred of evidence was called to show the quantity of papers in the warehouse, what quantity was not accounted for and what quantity was left after the discovery.
The loss suffered by Newbreed Organization was not ascertained or ascertainable. P.W.1 merely said that the value of materials stolen was N1.5m. What these materials were, no one knew.
The ingredients of the offence of stealing are:
I. The ownership of the thing stolen.
- That the thing stolen is capable of being stolen.
- The fraudulent taking or the fraudulent conversion.
In this case, there was not a shred of evidence that the 1st appellant had fraudulently taken any property belonging to Newbreed Organization. Conspiracy is an agreement between two or more persons to do an unlawful act.
There was not any evidence that the appellants had conspired to do anything unlawful. The lower court was at pains to identify the evidence upon which to hold that the prosecution had established a prima facie case and had reasoned thus at page 98 of the record:
“If the evidence of P.W. 5 is believed then the 3rd, 4th, and 5th accused have to explain to the Court the cash lodgements made by them into the First Bank of Nigeria Ltd. Ebute – Metta, on behalf of the 1st accused and the withdrawals they made from that account. In addition, the 4th accused said to be the wife of the 1st accused has an explanation to make about the ownership of the Volkswagen beetle car with registration number OY 2931 and how she got the money to purchase the vehicle. There is no doubt that the 1st accused upon the evidence before the Court has a case to answer, but how he got into large sums of money which he deposited into various banks in Lagos State. In addition, he has to explain the sources of the money he used to build a bungalow in his Village Obulu – Okiti – Delta State of Nigeria. The 2nd accused had in her account at Savannah Bank, Ikeja a sum of N7,688.22 which has been frozen. She has an explanation to make as to the source of the money.
I must confess that I am surprised at the reasoning of the trial Judge in the above passage. The reasoning does not represent the state of the law. It is not the duty of an accused to prove his innocence. The prosecution must establish the guilt of an accused.
It is not the law that in a criminal case – when an accused is shown to be in possession of some money, he must come to court to explain that the money is not the proceeds of some theft. The prosecution in my humble view ought first to establish by evidence the offence of stealing alleged. That the accused is in possession of large sums of money beyond his ordinary income can only be relied upon as a secondary plank. It cannot be the primary proof of the offence of stealing.
I think the lower Court should have upheld the no case submission since the prosecution at the conclusion of its case failed to establish the essential elements of the offence. The appeal succeeds. It is allowed. The ruling of Owobiyi J. on 17/12/96, is set aside. In its place, I uphold the no case submission made for the appellants. They are acquitted and discharged pursuant to Section.
Other Citations: 2001)LCN/0985(CA)
