Michael Uzoagba & Anor Vs Commissioner Of Police (2012)

LAWGLOBAL HUB Lead Judgment Report

MUSA DATTIJO MUHAMMAD, ,J.S.C.

This Judgment relates to appeals No.SC.109/2010 and SC.109A/2010 pursuant to the Appellants respective Notices dated and filed on the 21st January 2010 containing two grounds each.

The Appellants were arraigned before a Magistrate Court in the Federal Capital Territory, Abuja sitting at Jabi for offences of Criminal breach of trust and cheating contrary to sections 312 and 322 of the Penal Code. The prosecution called three witnesses at the end of whose evidence a no case submission was made by counsel on behalf of the Appellants. The submission was overruled by the trial court. Being dissatisfied, the Accused appealed to the High Court of the Federal Capital Territory, Abuja whereat their appeals were allowed. They were also discharged. Not satisfied by the High Court decision, the Respondent herein appealed to the Court of Appeal hereinafter referred to as the court below, in allowing the appeals, the court below see pages 133 – 134 of the records of the instant appeals, held thus:

‘In fact the more considered from the summation of the Appellate High Court 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.’

The two appeals under consideration are against the foregoing decision. Each Appellant has distilled a lone and not dissimilar issue for the determination of his/her appeals in his/her brief of argument filed on 3/6/10 and 20/5/10 respectively. In Appeal No. SC.109/2010, the Appellant, Michael Uzoagba, has distilled the following issue as arising for the determination of his appeal.

‘Whether the court below was right to have held that the prosecution has established a prima facie case against the 1st Appellant which deserves explanation from the 1st Appellant.’

The issue proposed in Caroline Michaels brief for the determination of her Appeal No. SC.109A/2010 reads:-

‘Whether having regard to the evidence adduced the lower court was right in holding that a prima facie case of criminal breach of trust and cheating has been established against the 2nd Appellant ‘

In addition to adopting the issues formulated in the Appellants brief for the determination of the respective Appeals, the Respondent has distilled a second issue he considers equally important for the determination of the Appeals. The further issue reads:-

“Whether the state is precluded from prosecuting a Criminal matter which emanated from a transaction which is purely contractual and civil in nature.’

It is an elementary principle that issues for the determination of appeals must not only draw from the grounds of appeal in the Appellants Notice, the issues must also relate to the decision appealed against. Where an issue proposed for the determination of an appeal does not relate or attack the decision appealed against, it must, being incompetent, necessarily be discountenanced.

The identical grounds in each of the Notices of the Appellants herein are hereunder reproduced for ease of reference.

‘GROUNDS OF APPEAL

GROUND ONE

The Court of Appeal erred in law by holding that the Respondent established a prima facie case against the 2nd Appellant thereby setting aside the judgment of the Appellate High Court.

PARTICULARS OF ERROR

i) The evidence of PW1 and PW2 did not establish or make out a prima facie case against the 2nd Appellant.

ii) The transaction between the 2nd Appellant and the nominal complainants that gave rise to the criminal proceeding was contractual and purely civil in nature.

GROUND TWO

The Court of Appeal erred in law by dismissing the Appellants no case submission when the fundamental elements of criminal breach of trust and cheating contrary to sections 312 and 322 of the Penal Code Law respectively were not proved.

PARTICULARS OF ERROR

The basic ingredients of the offences of criminal breach of trust and cheating was not established by the Respondent against the 1st Appellant

The evidence adduced before the trial magistrate court fell far below the standard required to establish the offences complained about.’

An examination of the 2nd issue proposed by the Respondent for the determination of the two appeals under consideration against the background of the foregoing grounds of appeal as well as the decision the issue purports to challenge readily belies the respondents claim of any nexus between the issue and the grounds of appeal and/or the decision. The issue glaringly neither draws from the grounds of appeal nor attacks the judgment appealed against. It remains the law that such an issue and the arguments proffered on it must be, and are hereby ignored. See Osahon v FRN (2003) 16 NWLR (pt 845) 89 at 114, Registered Trustees Pentecostal Assemblies of the World Inc. v The Registered Trustees of the African Apostolic Christ Church (2002) 15 NWLR (pt. 700) 424 at 450; Adelusola v Akinde (2004) 12 NWLR (pt.887) 295 and Asahi v Dakart (2006). In any event, since Appellants are the ones aggrieved by the lower courts judgment, the lone identical issue proposed by each of them aptly encapsulates the grievance of each Appellant and shall, for that overriding purpose, form the basis of the determination of the two appeals.

Learned Counsel to the Appellant in Appeal No. SC.109/2010 Mr. Zibiri adopted and relied on the Appellants brief at the hearing of the Appeal. Mr. Obla did same in respect of the Appellants brief in Appeal No. SC.109A/2010. Whereas the Appellants brief in Appeal No. SC.109/2010 was filed on 3/6/2010, the Appellants brief in Appeal No.109A/2010 was filed on 20/6/2010. The Respondents briefs in the two appeals settled by Adewale Olawoyin of counsel and filed on the 14/6/2010 were similarly adopted and relied upon by counsel in opposing the two appeals.

Learned Counsel to the Appellants attacked the lower courts finding at pages 133 – 134 of the record of Appeal common to both appeals. Both counsel argue that since the Respondent has failed, by the testimonies of all its three witnesses, to produce evidence in proof of all the ingredients of the two offences for which Appellants are arraigned, the no case submission made on Appellants behalf having succeeded should have been upheld. Indeed, counsel further contend, the evidence led by the prosecution being afflicted by material contradiction is incapable of disclosing any prima facie case against the Appellants. The testimony of PW3, it is submitted, stands in violent conflict with the evidence of PW1 and PW2 who transacted with the Appellants and the court below was in no position to pick between the testimonies in arriving at the decision being appealed against.

In particular, learned counsel in Appeal No. SC.109/2010 contends that the evidence of PW1 under cross examination, at page 10 of the record of appeal, clearly absolves the Appellant.

On his part, learned counsel for the Appellant in Appeal No. SC.109A/2010 contends in relation to the Appellant therein that the entire transaction that led to the arraignment of the Appellants being contractual and civil is incapable of sustaining any criminal charges against them.

The lower courts decision which failed to draw from the evidence available to the court, it is argued, is perverse. Counsel variously rely inter alia on the decisions in Tongo v COP (2007) 12 NWLR (pt.1049) 525 at 540 -541, Ubanatu v COP (2000) 2 NWRL (pt. 643) 101 at 136; Nasiru v State (1999) 2 NWLR (pt.589) 87 at 102 and Atano v Attorney General of Bendel State (1988)2 NWLR (pt.75) 201 in urging that the appeals be allowed.

Arguing the appeals in Respondents two briefs, Mr. Olawoyin agrees with learned Appellants counsel that a court or tribunal can only dismiss a no case submission where the prosecution provides evidence in proof of all the ingredients of the offences for which the accused persons are arraigned. In the case at hand, learned counsel contends, Respondent has led evidence on all the ingredients of the offences of criminal breach of trust and cheating contrary to Sections 312 and 322 of the Penal Code respectively the Appellants are arraigned for. Relying on Ubanatu v Commissioner of Police supra and the definition of a prima facie case at page 259 Osbornes Concise Law Dictionary, 8th Edition by Rutherford and Bone, learned counsel submits that Appellants arguments in their appeals are misconceived. The aggregate ofmthe evidence led by the Respondent, counsel contends, discloses questions, which the lower court rightly held, the Appellants must necessarily answer.

From the evidence of PW1 and PW2, it is argued, facts abound showing that the Appellants had intentionally induced the two to part with their money under the pretence that they had the authority to let out the shop, which authority the Appellants clearly knew they did not have. Further relying on Chianugu v State (2002) 2 NWLR (part750) 225 at 233-234, Duru v Nwosu (1989) 1 NWLR (part 113) 24 at 43, Ikomi v State (1986) 3 NWLR (part 28) 340, Ajidagba v Inspector General of Police (1958) SCNLR 60, Adeyimi v State (1991) 6 NWLR (part 195) 1 at 35 and Aminu v State (2007) 7 NWLR (part 1032) 152, learned counsel urges us to take into account Section 79 of the Penal Code in appreciating and affirming the decision of the court below. The unmeritorious Appeals, learned counsel concludes, should be dismissed.

Counsel on both sides and in the two appeals being determined are one, and rightly too, that the question to be answered in the appeals is whether indeed the court below is right in its finding that from the evidence proffered by the respondent against the Appellants the need has arisen to have the Appellants state their version so that their side of the story is equally heard and evaluated. For short, is the court below right to have concluded that a prima facie case has been made out against each of the Appellants and in the result overruling the Appellants no case submission.

It is settled by a seemingly endless chain of authorities, including those alluded to by counsel, that a prima facie case may rightly be found to have been established and no case submission properly overruled where the prosecution has:

(a) led evidence to prove all the essential elements of the offence alleged either directly, circumstantially or inferentially and

(b) the evidence as so adduced by the prosecution has neither been so discredited consequent upon cross examination nor is so ex facie unreliable that no reasonable tribunal can safely convict on it. See Ibeziakor v Commissioners of Police supra; Ikomi v State supra, Ubantu v COP supra; Ajidagba v IGP supra andAdeyemi v State (1991) 6 NWLR (pt.195) 1.

In Ajiboye v The State (1995)NWLR (pt.414) 408 at 413, this court per Kutigi JSC, as he then was, has further stated as follows:

‘It must be recognized that at the stage of a no case submission, the trial of the case is not yet concluded. At that stage therefore, the court should not concern itself with the credibility of witnesses or the weight to their evidence even if they are accomplices. The court should also at this stage be brief in its ruling as too much might be said which at the end of the case might fetter the courts discretion. The court should again at this stage make no observation on the facts. (See for example R v Ekanem (1950) 13 WACA 108, Chief Odofin Bella v The State (1967) NMLR 1, R. v Coker & Ors 20 NLR 62).’

The court had earlier in Ajidagba & Ors v IGP (1958) Vol 1 NSCC 20 at 21 cited with approval the decision in the Indian case of Sher Singh v Jitendranathsen (1931)1 L.R 59 Calc 25 to the effect that a prima facie case only means that there.is a ground for proceeding and not the same as proof of the guilt of the accused which comes later when the trial court would be entitled to believe that the uncontradicted evidence before it is sufficient proof of the case against the accused.

In the instant case, both Appellants are arraigned for the offences of criminal breach of trust and cheating contrary to sections 311 and 322 of the Penal Code Law CAP 89. The elements of the offence of criminal breach of trust are:

(i) that the Accused person was entrusted with property or dominion over it.

(ii) that he misappropriated it, converted it to his own use or disposes of the said property.

(iii) that the Accused did so in violation of any direction of law prescribing the mode in which such trust was to be discharged or any legal contract express or implied which he had made concerning the trust or that he intentionally allowed some other persons to do so and

(iv) that he acted dishonestly.

The elements of cheating are:-

(i) That the person deceived delivered to someone or consented that some person shall retain certain property;

(ii) That the person deceived was induced by the accused to part with the property;

(iii) That the person acted upon the inducement of the Accused;

(iv) That the Accused had acted fraudulently or dishonestly when inducing that person.”

In leading evidence to prove the foregoing elements of the two offences against the Appellants, the Respondent called three witnesses. Testifying in chief, PW1 stated firstly on page 4 of the record thus:

“It was December 2006. So we went to pay for shop. We went to see the 2nd Accused for shop at Utako market. We paid the sum of N130,000.00 to the 2nd Accused person who issued a receipt and on the receipt was Equity Ventures Public Convenience No. 2 Utako Modern Market. My husband drew her attention that the receipt the 2nd Accused person gave has nothing to do with the shop and the 2nd Accused person said the receipt she gave is to show she collected the money from us. My husband said he would like to have the receipt in respect of the shop. The 2nd Accused person said they will take my husband to the owner in two days as they are not the owner. When my husband got there in two days time, she said that the owner of the shop travelled.’

The 2nd Accused referred to by PWI is the Appellant in appeal No. 109A/2010 whose failure to ‘take’ PWI and PWII to the owner of the shop and the latters discovery that the very shop having already been rented out was no longer available, made the two to ask the 2nd Accused for the refund of the money they paid to her. By May, 2007 and inspite of 2nd Accused persons repeated promise to refund the entire sum, PWI and her husband PW2, recovered only N50, 000.00 (Fifty Thousand Naira) from the N130,000 the Appellant allegedly collected from them. PWI maintained her stance under cross examination and concluded her testimony at page 6 of the record thus:-

‘We did not start business because we were waiting for the original receipt. No one came in respect of the shop to say that the money for the shop was not given to me (sic). Yes, they gave N50,000.00 as part payment for the N130,000.00. Yes I collected the money after demolition of the market. Yes the shop in question was demolished…’

Even though PW2s evidence in chief was substantially the same as that of PW1, he spoke in greater details. Part of the details, see page 9 of the record, is to the effect that PWI, his wife, was assaulted by both Appellants on the 7th of July, 2007 when they went in a further effort to collect the balance of the money they paid to the Appellants. Under cross examination however, PW2 particularly stated at page 10 of the record as follows:-

‘Yes, the transaction is specifically between the 2nd Accused person and myself. The 1st Accused was a witness to the documents. Yes my wife was a witness in this transaction.’

PW3 a police officer was detailed to investigate the case against the Appellants following the report lodged by PW1 and PW2. He interrogated both Appellants in the course of his investigation. Testifying in chief, he affirmed what PW1 and PW2 told the court in respect of the Appellant in Appeal No. 109A/2010, Caroline Michael. At pages 13 – 14 of the record, PW3 in respect of the Appellant in Appeal No. 109/2010 states in chief as follows:-

‘In the afternoon the same day, the 2nd accused person (sic) came to the police station and asked of his wife then he was questioned by my D.C.O and the 2nd Accused answered that it was true they collected the sum of N130,000.00 which he admitted before my D.C.O. that they have started paying the money……_The 2nd accused person still admitted before my D.C.O that the 2nd accused person collected the money from nominal complainant and handed it over to his wife – 1st accused person which his wife now issued receipt to the 2nd accused person. I personally asked the 2nd accused person about the additional N10,000 which he said the N10,000 is for the tenancy agreement and his own commission is N5,000.

At page 22 of the record of appeal are some very vital questions counsel to the Appellants asked PW3 while cross examining him and the seemingly revealing answers the witness gave. Please read them:

‘Question: You inform the court that it was the 1st accused person that collected this money.

Answer: Yes.

Question: Did you find out if the 1st accused person was a party to the transaction.

Answer: Yes, the 1st accused person is a party to the transaction.

Question: The nominal complainant Mr. Goodman told court that the 1st accused person was not a party to transaction but only a witness, are you the one telling falsehood, who is telling the court the correct position you or nominal complainant

Answer: Actually he the 1st accused person is a party to the offence because he admitted before me he collected the money from the nominal complainant and handed over the money to his wife who is the 2nd accused person, from there the 2nd accused person write a receipt of collection of that money because the 1st accused person cannot write anything.” (Underling mine for emphasis).

Now, applying the principles regarding a no case submission earlier recounted in this judgment to the foregoing evidence led by the Respondent, can it be said that the lower court is right in its judgment that a prima facie case has been made out against the Appellants in the two Appeals to justify calling on them to state their own side of the case. In my considered view, the question must be answered affirmatively.

It is evident from the case being made out against both Appellants that the three witnesses led by the Respondent collectively testified on facts in respect of all the ingredients of the two offences the Appellants are arraigned for. Their trial remains on-going and this is neither the stage to pronounce on the credibility of these witnesses nor comment on the facts they testified to. By the combined effect of Section 158 and Section 159 of the Criminal Procedure Code applicable to criminal trials in the trial court, since the evidence adduced against the Appellants subsists and if uncontradicted would warrant their conviction, the trial magistrate courts finding that a prima facie case has been made out against the Appellants and the restoration of that finding by the lower court are beyond reproach. The lone identical issue raised in the two appeals is hereby resolved in favour of the Respondent in. each of the two appeals and both appeals being unmeritorious, are accordingly dismissed. The case is remitted to the trial magistrate court at Jabi for the trial thereat to be concluded.

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SC.109/2010 SC.109A/2010