3PLR – GODWIN CHIANUGO (alias GODWIN ISIENEI) & ORS. V. THE STATE
POLICY, PRACTICE AND PUBLISHING, LAW REPORTS – 3PLR
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GODWIN CHIANUGO (alias GODWIN ISIENEI) & ORS.
V.
THE STATE
COURT OF APPEAL, (LAGOS JUDICIAL DIVISION)
ON TUESDAY, THE 15TH DAY OF MAY, 2001
SUIT NO: CA/L/28/97
3PLR/2001/318 (CA)
OTHER CITATIONS:
(2001) LPELR-CA/L/28/97
(2002) 2 NWLR (Pt 750)225
BEFORE THEIR LORDSHIPS
GEORGE ADESOLA OGUNTADE
SULEIMAN GALADIMA
PIUS OLAYIWOLA ADEREMI
BETWEEN
- GODWIN CHIANUGO (alias GODWIN ISIENEI)
- DELE AITO
- CHRISTIAN CHIANUGO
- ANNE UZOMA CHIANUGO
- ROSE CHIANUGO
AND
THE STATE
REPRESENTATIONS
A.A. ODUNSI – for the Appellants
AND
Respondent not represented – For the Respondents
MAIN ISSUES
CRIMINAL LAW AND PROCEDURE – CONSPIRACY: What is conspiracy
“Conspiracy is an agreement between two or more persons to do an unlawful act.”Per OGUNTADE, J.C.A. (Pp. 12, paras. F-G)
CRIMINAL LAW AND PROCEDURE – NO CASE SUBMISSION: Nature of a no case submission and when it can be made
“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: 1. When there has been no evidence to prove an essential element in the alleged offence; 2. 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.”Per OGUNTADE, J.C.A. (P. 8, paras. B-G)
CRIMINAL LAW AND PROCEDURE – NO CASE SUBMISSION: Purport of a no case submission
“At the close of the case for the prosecution, a submission of no case to answer may be made on behalf of an accused. That submission postulates one of two things, or both of them at once. Firstly, such a submission tantamounts to saying that there has been throughout the length and breath of the case presented in court by the prosecution, no legally admissible evidence led against the accused person on behalf of whom the submission was made to connect him in any way with the commission of the offence with which he has been charged, which would compel his being called upon to defend himself. Secondly, it may mean that whatever evidence there was which might have linked the accused person with the commission of the offence, has been so discredited through cross-examination that no reasonable tribunal can be called upon to act on it as establishing the guilt of the accused person or that, such evidence is so manifestly unreliable such that no reasonable tribunal can safely convict on it. These are the two conditions; one of which and even both can sustain a no-case Submission. I must not fail to say something about the seeming distinction between the two. If in the first limb, there is lack of proof of the essential elements that constitute the offence then the question of discrediting evidence that constitutes the offence will not arise. It must however be noted that the evidence establishing a prima facie case is not to be such as would ground a conviction. Rather, it only means that the evidence led by the prosecution has so covered all the essential elements of the alleged offence and if it remains uncontradicted and not discredited through cross examination a reasonable tribunal may justifiably convict on it, and therefore some explanation is required from the accused. Indeed, the trial Judge is not thereby called upon at that stage to express any opinion on the evidence before it. The trial Judge, should not in general be called upon to reach a decision as to conviction or acquittal until the whole evidence which either side wishes to tender has been placed before him. See (1) Ajidagba v. Police (1958) 3 FSC 5 (2) Ibeziako v. C.O.P. (1963) NNLR 48 (3) Ajiboye v. The State (1995) 8 NWLR (Pt.414) 408, (4) Ubanaju v. C.O.P. (2000) 2 NWLR (Pt 643)115 and (5) Daboh & Anr. v. The State (1977) 5 SC 197.”Per ADEREMI, J.C.A. (Pp. 15-16, paras. C-G)
CRIMINAL LAW AND PROCEDURE – STEALING: Ingredients for the offence of stealing
“The ingredients of the offence of stealing are: I. The ownership of the thing stolen. 2. That the thing stolen is capable of being stolen. 3. The fraudulent taking or the fraudulent conversion.”Per OGUNTADE, J.C.A. (P. 12, paras. D-E)
PRACTICE AND PROCEDURE – EVIDENCE – BURDEN OF PROOF: Whether an accused person has the burden of proving his innocence
“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.” Per (Pp. 13-14, paras. F-B)
WORDS AND PHRASES – PRIMA FACIE CASE: Meaning of the phrase prima facie case
“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)”Per OGUNTADE, J.C.A. (Pp. 8-9, paras. G-D)
MAIN JUDGMENT
OGUNTADE, J.C.A. (Delivering the Leading Judgment):
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:
- 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.
GALADIMA, J.C.A:
I have had the privilege of reading in draft the lead judgment just delivered by my learned brother OGUNTADE, J.C.A. in this appeal.
I agree with the reasoning. I arrive at the same conclusion that the lower court should have upheld the no-case submission made by the appellants because, the prosecution at the conclusion of its case failed to validly establish the essential elements of the offence. In the premise, this appeal succeeds. I will also allow the appeal. The ruling of Owobiyi J. is hereby set aside. The appellants are discharged and acquitted.
ADEREMI, J.C.A.: I have before now had the privilege of a preview of the judgment delivered by my learned brother, Oguntade, J.C.A. I agree with his reasoning and conclusion.
The facts leading to this appeal have been carefully set out in the body of the judgment. I need not go over them. Suffice it to say that, it is the refusal of the trial Judge to sustain the no-case submission of the counsel for the defence that led to this appeal. In our criminal justice system, there are stipulations and safeguards for the prosecutor, the accused and the victim. With regards to the present appeal, it is the stipulations and safeguards for the accused that open themselves for examination. At the close of the case for the prosecution, a submission of no case to answer may be made on behalf of an accused. That submission postulates one of two things, or both of them at once. Firstly, such a submission tantamounts to saying that there has been throughout the length and breath of the case presented in court by the prosecution, no legally admissible evidence led against the accused person on behalf of whom the submission was made to connect him in any way with the commission of the offence with which he has been charged, which would compel his being called upon to defend himself. Secondly, it may mean that whatever evidence there was which might have linked the accused person with the commission of the offence, has been so discredited through cross-examination that no reasonable tribunal can be called upon to act on it as establishing the guilt of the accused person or that, such evidence is so manifestly unreliable such that no reasonable tribunal can safely convict on it. These are the two conditions; one of which and even both can sustain a no-case Submission. I must not fail to say something about the seeming distinction between the two.
If in the first limb, there is lack of proof of the essential elements that constitute the offence then the question of discrediting evidence that constitutes the offence will not arise. It must however be noted that the evidence establishing a prima facie case is not to be such as would ground a conviction.
Rather, it only means that the evidence led by the prosecution has so covered all the essential elements of the alleged offence and if it remains uncontradicted and not discredited through cross examination a reasonable tribunal may justifiably convict on it, and therefore some explanation is required from the accused. Indeed, the trial Judge is not thereby called upon at that stage to express any opinion on the evidence before it. The trial Judge, should not in general be called upon to reach a decision as to conviction or acquittal until the whole evidence which either side wishes to tender has been placed before him. See (1) Ajidagba v. Police (1958) 3 FSC 5 (2) Ibeziako v. C.O.P. (1963) NNLR 48 (3) Ajiboye v. The State (1995) 8 NWLR (Pt.414) 408, (4) Ubanaju v. C.O.P. (2000) 2 NWLR (Pt 643)115 and (5) Daboh & Anr. v. The State (1977) 5 SC 197.
In the instant case, there is no scintilla of evidence that the accused/appellant had fraudulently taken any property of Newbreed Organization; there was no evidence of meeting of minds to do an unlawful act. I am therefore in great difficulty to see a justifiable rationale, in law, as to how the learned trial Judge could find a basis to hold that a prima facie case was made when he said, if the evidence of PW 5 was believed then the 3rd – 5th accused would have to explain to the court the cash lodgements made by them into the First Bank of Nig. Ltd. Ebute-Metta, on behalf of the 1st accused and the withdrawals made there from. He again put the onus on the 1st accused to explain how he got into large sum of money deposited in various bank accounts in addition to his (1st accused) explaining the source of money he used in building his house. And so also did the 2nd accused have a duty to explain the lodgement in her account in the bank. The law has remained sacrosanct that in our adversary system of criminal jurisprudence, the onus is always on the prosecution to prove his case beyond reasonable doubt while an accused is presumed to be innocent until he is proved guilty. The method adopted in the treatment of the No-case submission is inquisitorial in nature and that is an anathema to our criminal jurisprudence. Indeed, there is no evidence establishing the elements of the offence.
For this little contribution but most especially for the fuller reasons contained in the leading judgment, I would say that the No-case submission ought to have been sustained. I would therefore also uphold the no-case submission and set aside the ruling of Owobiyi J. made on 17/12/96. I also abide by the order of discharge and acquittal of the accused persons as expressed in the said leading judgment.
Appeal allowed.
