POLICY, PRACTICE AND PUBLISHING, LAW REPORTS  3PLR

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AUTO COMPONENTS LIMITED

V.

THE STATE

COURT OF APPEAL

(KADUNA DIVISION)

CA/K/115/92

TUESDAY, 18^TH JUNE, 1996

3PLR/1996/26  (CA)

OTHER CITATIONS

2 NWLR PART 486 PG. 250

BEFORE THEIR LORDSHIPS

UMARU ABDULLAHI;

JAMES OGENYI OGEBE;

IBRAHIM TANKO MUHAMMAD.

REPRESENTATION

O.O. Bello (Miss) – for appellant

Respondent absent and unrepresented

MAIN ISSUES

PRACTICE AND PROCEDURE – APPEAL: Issues for determination

CRIMINAL LAW AND PROCEDURE: Disposal of property found with accused person

MAIN JUDGEMENT

JAMES OGENYI OGEBE delivering lead judgement:

The appellant company and one Mr. Nwachu were tried at the High Court of Kano for the offences of conspiracy and theft contrary to sections 97(1) and 287 of the Penal Code. At the end of the case for the prosecution, the appellant’s counsel made a non-case submission in writing. The trial Chief Judge delivered his ruling on the 2nd of October 1991, in which he upheld the no-case submission and struck out the name of the appellant from the charge. At page 45 of the printed record the learned trial Chief Judge gave the reasons for his action as follows:-

“Thus under the Penal Code when it is physically impossible for a limited liability company to commit offences or where evidence of a particular intention is essential or where the only punishment is imprisonment, a company cannot be proceeded against having said that, it appears to me from the nature of the two heads of charge against the 3rd accused person, cannot be proceeded against him. From the totality of the evidence laid down before me, it appears that the officers/directors of the third accused person who could have been successfully prosecuted under the two heads of charge before the court have disappeared from this country and therefore living outside the jurisdiction of this court. I therefore consider it to be a barren exercise for the prosecution to have spent its time and energy in prosecuting the 3rd accused-person. The effort of the prosecution amounted to merely pursuing the shadow and leaving the real substance of the matter. From the foregoing I hold that the two heads of charge against the 3rd accused (Auto Components Ltd.) are incompetent and are of no effect. I would therefore strike out the name of the 3rd accused from the two-heads of charge for reasons which I have set out above. Accordingly, the name of the 3rd accused person is hereby struck out”.

He concluded his ruling at page 47 as follows:-

“Finally, I would like to put it on record that an accused person cannot be put on his defence in the fortuitous hope that he might by so doing, supply the missing link in the (sic) case for the prosecution. To do so will negate the provision of Section 33(5) of the Constitution of Nigeria 1979. In conclusion, I hold that the “No case submissions made by counsel for the accused persons have laid this case to rest for the reasons I have stated above”.

On the 3rd of March, 1992, Mr. Hasan Garba, learned state counsel for the respondent argued a motion couched in the following words:-

“There is a motion before the court praying the court for the following orders:-

(1)     To transfer the sum of N70,624.21 from Account No. 3798 with Allied Bank Limited situated at No. 47/48, Bradford Street, Lagos opened in the name of Kano Aluminium Ltd. by the respondents into the said account of Northern Aluminium Ltd. with the BCCI now African International Bank Limited, situated at No. 13C Murtala Muhammed Way, Kano in Account No. 01006340.

(2)     To transfer the sum of N250,000.00 meant for Northern Aluminium drawn on UBA Limited situated at Oba Akran Street, Ikeja, Lagos made payable to Auto Components Limited, the second respondent in Account No. 5838 in the form of Bank Draft No. OK/F022439: : OK/FO22149 and OK/FO12089 dated 13/7/84 and 22/11/84 respectively into the Account of Northern Alluminium Company in Kano at 13c, Muritala Muhammed Way (supra).

(3)     For such further order or orders as the Honourable Court may deem fit to make in the circumstances”.

He stated that he brought the application under Section 357(1) and (3) of the Criminal Procedure Code of Kano State.

Mr. Ayileke, learned counsel for the appellant vigorously opposed the application on the ground that it was totally misconceived. The learned trial Chief Judge in his ruling delivered on the 21st day of April, 1992 granted the orders as prayed.

It is against this ruling that the appellant has appealed to this Court on three grounds of appeal. In accordance with the Rules of this Court. The appellant formulated three issues for determination as follows:

“1.     Whether the learned trial Chief Judge was right in the circumstances of this case to have used his powers under Section 357 Criminal Procedure Code when there was no finding that an offence had been committed in his decision on the substantive case dated 1/10/91.

2. Whether the lower court was right in making a finding, that some people had committed offences, during its ruling on the application to transfer certain sums of money into the account of Northern Alluminium Company Limited when the said people had not been tried by any court of law.
3. Whether a court of law can order a party to do something that is impracticable”.

The respondent, even though served with the process of the court did not file a brief.

I have taken a critical look at the issues formulated by the appellant and it is clear to my mind that the 2nd and 3rd Issues are purely academic and have no relevance in the determination of the appeal. For example, the 2nd issue complains about the findings of the trial Judge that some people had committed offences. The appellant was not one of such people and the appellant does not claim to be holding brief for such people. The 3rd issue is abstract and it does not arise properly from any of the grounds of appeal. I shall therefore discountenance Issues 2 and 3 and resolve this appeal on the basis of the 1st issue. See Onwumere v. The State (1991) 4 NWLR (Pt. 186) 428 and Ogunlade v. Adeleye (1992) 8 NWLR (Pt. 260) 409.

The main argument of the appellant’s counsel in his brief si that the appellant having been struck out of the case on a no-case submission could no longer be brought before the trial Judge for the order in respect of the properties connected with the charge to be made against it. He said that the sum of N70,624.21K and N250,000 the subject matter of the prosection’s application were never brought before the trial court nor were they ever in its custody. The court did not evaluate the evidence before it in respect of the said sums to determine their true ownership. The learned counsel submitted further that Section 357(1) of the Criminal Procedure Code envisages a situation where there has been a conviction based on the findings of the court and where the property has been produced before the court or is in its custody. He relied on the case of Onuoha v. The State (1987) 4 NWLR (Pt. 65) 331 at page 243.

The crux of this appeal is whether the learned trial Chief Judge of Kano State correctly applied Section 357(1) of the Criminal Procedure Code of Kano State to make the orders appealed against. That sub-section reads:-

“357 (1) When an inquiry or trial in any criminal case is concluded, the court may make such order as it thinks fit for the disposal by destruction, confiscation or delivery to any person appearing to be entitled to the possession thereof or otherwise of any movable property or document produced before it or in its custody or regarding which any offence appears to have been committed or which has been used for the commission of any offence”.

My learned brother Maidama, J.C.A of blessed memory considered this section in the case of Theophilus Onuoha v. The State (1987) 4 NWLR (Pt. 65) 331 at Page 343. In that case the appellant had been convicted of criminal breach of trust and had been ordered to forfeit a certain sum to the Federal Government. He appealed to the Court of Appeal against his conviction and the order of forfeiture. At page 343 of the Report the Court of Appeal had this to say with regard to Section 357(1) of the C.P.C:-

“Under the provisions of Section 357(1) of the C.P.C. the court has power when an enquiry or trial in any criminal cases is concluded to make such an order as it thinks fit for the disposal by destruction, confiscation or delivery to any person appearing to be entitled to the possession thereof, immovable property or document produced before it or is in its custody or regarding which an offence appears to have (sic) been used for the commission of any offence. If an accused person is convicted for receiving bribe, the bribe accepted could be ordered to be forfeited to the state, similarly, if an accused person is in the habit of transporting stolen properties, his car could be confiscated if he was convicted of facilitating or receiving stolen properties. The above further requires that the movable property must either be produced before the trial court or was in the custody of the court before its confiscation or forfeiture. In the instant case, there was no evidence that the amount involved was produced at the trial nor was it in the custody of the court”.

I agree entirely with the view expressed by my learned brother. Applying the principles contained therein to the present case, it is clear from the present case that the appellant was not convicted of any offence. In fact the trial Chief Judge in his ruling on the no-case submission on the 22nd of October, 1991 held that the appellant could not be prosecuted for the offences charged. In fact he went further in that ruling to hold that the no-case submission made by counsel to the accused persons had laid this case to rest. It is therefore surprising that over 5 months later, he allowed the prosecuting counsel to re-open the case for the parties by making an order against the appellant to transfer some monies to the account of Northern Aluminium Limited.

It is clear from the wording of Section 357(1) that before a court can make an order for the disposal of any movable property or document such property or document must have been produced before it or has been in its custody. There is no evidence whatsoever before the trial court to show that the monies ordered to be transfer were ever produced before the court or were in its custody. In my own respectful view Section 357(1) can only be used where there has been a conviction of an accused person and the court had made definite findings as to the ownership of the properties brought before it. It is certainly not applicable in a situation where an accused person had been discharged on a no-case submission or even after a full trial. Section 357(1) of the Criminal Procedure Code of Kano State is not a ploy to dispose of in a criminal matter a complicated civil claim which would require pleadings and evidence and thorough evaluation of evidence before its determination.

In addition to the above it would appear to me that the trial court having disposed of the criminal matter on the 2nd of October 1991 was functus officio as at the 21st of April, 1992 when it made the orders appealed against. As there is no ground of appeal on this issue I shall say no more on that.

This appeal has substance and I accordingly allow it and set aside the ruling of the trial Chief Judge dated 21st of April 1992. In its place the respondent’s application before that court is dismissed.

Cases referred to in the judgment:

Ogunlade v. Adeleye (1992) 8 NWLR (Pt. 260) 409

Onuoha v. State (1987) 4 NWLR (Pt. 65) 331

Onwumere v. State (1991) 4 NWLR (Pt. 186) 428