Federal Republic Of Nigeria V. Nasiru Yahaya (2014)

LawGlobal-Hub Lead Judgment Report – COURT OF APPEAL

TUNDE O. AWOTOYE, J.C.A. (Delivering the Leading Judgment)

This is the Judgment in respect of Complainant/Appellant in suit No. ZMS/GS/20C/2011.

The accused (now respondent) was arraigned before the High Court of Justice Gusau on a charge which reads as follows:

“That you Nasiru Yahaya between 27/4/2011 and 31/8/2011 at Gusauu within the jurisdiction of the High Court of Zamfara State dishonestly converted to your own use the sum of N64,800,000.00 (sixty four million eight hundred thousand naira only) belonging to one Alhaji Musa Baba and that you thereby committed an offence contrary to section 308 and punishable under section 309 of the penal code”.

After the plea of the accused was taken the prosecution called evidence in support of its case. The accused later gave evidence in defence.

The learned trial judge, after considering the evidence adduced and hearing the parties entered judgment and discharged and acquitted the accused inter alia thus:

“On the whole, the evidence of the prosecution raises doubt in the mind of the court as this 2 vital ingredient of the offence of criminal misappropriation was not established in my considered view. It is only where all essential ingredients to an offence charged have been satisfactorily proved by the prosecution the same is prove beyond reasonable doubt. Sec SHEHU VS STATE (2010) 45cm page 188 ratio No 15 after a careful consideration the entire evidence adduced before this court. I am satisfied that the prosecution has failed to establish a case of criminal misappropriation under section 308 and punishable under section 309 of penal code against the accused person, accordingly a verdict of discharge and acquitted is hereby entered in favour of the accused person.”

Dissatisfied with the judgment, the prosecutor filed an appeal to this court vide Notice of Appeal containing 4 grounds of appeal (shorn of the particulars) are:

Ground 1

The learned trial judge erred in law when he held that section 19(5) of the Economic and Financial Crimes Commission (establishment, etc.) Act, 2004 [“the EFCC Act”] did not apply in the instant case because respondent was charged and tried under section 308 of the Panel Code.

Ground 2

The learned trial Judge erred in law when in arriving at his decision of discharging and acquitting the respondent he made use of a document that was not before the court.

Ground 3

The learned trial Judge erred in law when he held that the prosecution withheld evidence and that the court was therefore entitled to presume under section 149(d) of the Evidence Act that had the evidence been produced it would have been unfavourable to the prosecution.